Delhi High Court
Jamal Mirza vs State on 27 January, 2012
Author: S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 4th January, 2012
DECIDED ON : 27th January, 2012
+ CRIMINAL APPEAL NOS.852, 813 & 891/2009
CRL.APPEAL- 891/2009
JAMAL MIRZA ..... A-1
AND
[email protected] MOHD.RAJU (SINCE DECEASED) ..... A-2
AND
CRL.APPEAL-852/2009
ALAM @ MAMOON ..... A-3
AND
CRL.APPEAL- 813/2009
NIZAM @ TITTO .....A-4.
Through: Mr. Avninder Singh, Advocate for Appellant
in Crl.A.813/2009.
Ms. Purnima Sethi, Advocate for Appellant
in Crl.A.852/2009.
Ms. Anu Narula, Adv. for Appellant in
Crl.A.891/2009 .
versus
STATE ..... Respondent
Through: Ms. Richa Kapoor, APP on behalf of State
in all the Appeals.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
MR. JUSTICE S.P.GARG
Crl.A.Nos.852/09, 852/09 & 813/09 Page 1 of 30
S.P.GARG, J.
1. The Appellants Jamal Mirza (A-1), Mohd. Faruq @
Mohd.Raju (A-2) (since released), Alam @ Mamoon (A-3) and Nizam @
Mijam @ Titoo (A-4) (hereafter referred to by their names) have preferred
the present appeals against the judgment and order on sentence dated
15.04.2009 and 25.04.2009 respectively passed by learned Additional
Sessions Judge whereby they were held guilty for the commission of
offences punishable under Section 396 read with Section 397 IPC and
were sentenced to undergo imprisonment for life with fine of `2,000/-
each. The prosecution case, in short, may be delineated as follows:
2. The present case was registered by the Police of PS Punjabi
Bagh by FIR No.346/2000. Complainant-Ms.Megha Nijhara aged 16
years in her statement to the Police disclosed that on the night intervening
6/7th May 2000 at about 4:30 A.M. she and her sister, Radhika, and
brother Raghav were sleeping in her room. Upon hearing some noise, she
got up and saw that six young boys in the age group of 18 to 22 years
were standing near her bed. Four of them were armed with pistols and
two of them had daggers in their hands. They threatened to kill all of
them if they made any noise. They tied their hands and inquired as to
where the cash was kept. Thereafter, at gun point, they took her (the
complainant) to her parents‟ room and threatened to kill her if they raised
an alarm, and also tied their hands.
3. The complainant further stated that from the said room, the
assailants took out articles lying in the almirah. They inquired from her
father where the cash was kept. When he said that it was in his mother‟s
room, the two assailants, at gun point took him to his mother‟s room. The
other assailants searched the almirah. In the meantime, her mother
opened the passage door, woke up her uncles Ravinder @ Ravi and
Kaushlender. They reached the said room; on seeing them, the two
assailants got perplexed and grappled with them (Ravinder and
Kaushlender). The two intruders present on the ground floor also went
upstairs and started firing at her uncle and father. Her mother and uncle
Rajiv Nijhara started raising noise of „chor-chor‟ from his room. At that,
the assailants went up-stairs and fired at them. The assailants fled from
the spot after robbing several articles.
4. The complainant further stated that her uncle Ravinder died
due to gunshot injuries; her father and uncle Kaushlender sustained
serious injuries. While fleeing the attackers took away cash in a rexene
bag. They also removed her aunt‟s gold bangles as well as those of her
grand-mother. She further stated that she could identify the assailants.
5. On hearing sound of gun fire at the spot, some neighbours
rushed to the spot and informed the police who went the place of
occurrence and recorded complainant‟s statement. The injured were
removed to Maharaja Agarsen Hospital where Ravinder @ Ravi was
declared "brought dead". The injured Kaushlender was shifted to AIIMS
for treatment.
6. On reaching the spot, the police from PS Punjabi Bagh
conducted necessary proceedings. Inspector Ram Singh Chauhan got the
FIR registered through constable Satbir. He collected the MLCs of the
injured. The crime team was summoned; a finger-print expert lifted six
chance prints and a private photographer was called in who took
photographs of place of occurrence. The IO prepared site plans of the
place of crime; two bullets were seized from the first floor of Jitender
Nijhara‟s portion of premises and sealed. The Police also found two
sports shoes, in the adjoining room at the first floor which were taken into
possession. The dead body of the deceased Ravinder @ Ravi was
collected and post-mortem was conducted.
7. During investigation, A-1 was arrested on 11.05.2008 in a
case registered as FIR No.297/2000 PS Saraswati Vihar by Anti Robbery
Section, Crime Branch, New Delhi and one loaded pistol was recovered
from his pocket. He was interrogated and his disclosure statement was
recorded in that case in which he revealed his involvement in the present
case. The PS Saraswati Vihar informed Inspector Ram Singh Chauhan,
PS Punjabi Bagh about this disclosure statement, by A-1. Subsequently
A-1 was arrested in this case and the IO moved an application for
conducting his test identification parade (TIP). A-1 refused to participate
in the proceedings. On 22.05.2000, on interrogation, his disclosure
statement was recorded. Pursuant to the disclosure statement, A-1 led to
recover a dagger which was used in commission of this offence from a
vacant plot which was situated at a distance of about three plots away
from the place of incident. Investigating officer prepared a sketch of the
dagger and the same was seized by him.
8. On 23.08.2000 A-2 was arrested by the Anti Robbery Cell,
Crime Branch, Janak Puri in a case FIR No.161/2000 PS Janak Puri. In
his disclosure statement (made in that case), he confessed to his
involvement in this case. He was also arrested in this case on 28.08.2000.
An application was moved before the learned Metropolitan Magistrate for
TIP of A-2 but he too refused to participate in TIP proceedings.
9. On 12.12.2000 A-3 and A-4 were arrested by the police, in
Faridabad, in FIR No.767/2000 under Section 395/397 IPC. In their
disclosure statements both also revealed about their involvement in the
present case. This information was relayed to PS Punjabi Bagh, A-3 and
A-4 were arrested in the present case on 19.01.2001. Application for
conducting TIP of A-3 and A-4 was moved before the concerned court.
A-3 agreed to participate in the TIP proceedings. The TIP was
subsequently conducted by the learned Metropolitan Magistrate where
Kaushlender correctly identified A-3 as one of the assailants who had
committed the offence. A-4 declined to participate in the TIP proceedings
alleging that he had already been shown to the witnesses in the police
station.
10. The IO sent all the sealed parcels to FSL, Malviya Nagar and
subsequently collected the reports. He recorded statements of concerned
witnesses at different stages during investigation. After completion of
investigation Police of PS Punjabi Bagh filed challan against A-1 to A-4
for the commission of offences under Sections 396/397/302/307 IPC and
25/54/59 Arms Act in the court of learned Metropolitan Magistrate. The
case was later committed to the Court of Sessions. To prove charges
against the Appellants, the prosecution examined 47 witnesses.
Statements of the Appellants were recorded under Section 313 Cr.P.C.
They denied their involvement in the commission of the offence and
pleaded innocence and that they were falsely implicated in this case.
They, however, did not prefer to lead any evidence in defence.
11. After consideration of submissions of the parties, and after
considering the evidence on record, the Trial Court convicted all the
Appellants in the manner described earlier, and passed the sentencing
order.
12. During pendency of these appeals, on 17.03.2011 this Court
noted that A-2 had claimed that he was juvenile on the date of incident i.e.
07.05.2000. An Ossification test of the A-2 was directed; according to the
opinion given, his age was stated to be between 14 years to 17 years on
the date of the offence. By order dated 18.04.2011 A-2 was released as he
had already remained in custody for over three years. A-2 was set at
liberty after giving him benefit of Section 1(a) of the Juvenile Justice
(Care and Protection of Children) Act, 2000 on account of the fact that he
had already been in custody for the maximum period prescribed under the
said Act.
13. Learned counsel for the Appellants have vehemently argued
that the prosecution failed to prove its case against them beyond
reasonable doubt. There are material contradictions, inconsistencies and
improvements in the statements of prosecution witnesses which make it
unsafe to record any conviction. The Appellants were falsely implicated
in this case because they were Bangladeshi nationals. Nothing was
recovered from their possession. No robbed jewellery or cash was
recovered from the possession of any of the Appellants or at their
instance. All of them were arrested by the police in various other cases
and on recording their disclosure statements they were falsely implicated
in this case. The anxiety of the police was to solve the case one way or the
other. No weapon of offence was recovered from the possession of the
Appellants. No efforts were made by the police to get their blood samples
or finger-prints matched with the blood and finger-prints detected at the
spot. The Appellants were justified in declining to participate in TIP
proceedings as they were shown to the material prosecution witnesses in
the police station.
14. Learned counsel further urged identification of the
Appellants in Court by the witnesses cannot be believed. PW-7 (Renu)
failed to identify A-3 in TIP proceedings. The witnesses examined by the
prosecution before the learned Trial Court gave different versions
regarding the role played by each Appellant at the time of the incident.
They gave differing versions regarding the total number of assailants. The
details of the jewellery robbed were not furnished. The dagger allegedly
recovered at the instance of A-1 was never shown to the material
witnesses at the time of their examination before the Court. Recovery of
the dagger itself is doubtful. No independent public witness was joined at
the time of arrest of the Appellants and at the time of recording their
disclosure statements.
15. The material witnesses have testified that Appellants had
covered their faces with handkerchief and thus it was not possible for the
inmates of the house to identify all the attackers. They identified the
assailants in Court only at the instance of police officers. It was argued, in
respect of one of the Appellants, i.e in Crl. Appeal No. 813/2009, that
upon the said accused refusing the TIP, they were not assisted by the
Consular Officers of their country, i.e., Bangladesh, contrary to provisions
of the Vienna Convention on Consular Relations, 1963 which India has
ratified. He argued that it was the prosecution‟s case that the Appellants
were Bangladeshi nationals, and so they should have been accorded the
rights assigned to them under this treaty. The relevant article-Article 36
(1) (b). This, according, to counsel, resulted in an unfair trial, rendering
the impugned judgment liable to be set aside.
16. The learned APP for the State refuted these arguments and
sought to support the findings recorded by the learned Trial Court
convicting the Appellants. It is argued that mere non-recovery of the
robbed articles does not demolish case of the prosecution. The inmates of
the house had no ulterior motive to falsely identify the Appellants.
Recovery of the dagger was pursuant to A-1‟s disclosure statement in the
presence of an independent public witness i.e. PW-11 (Ajay Mahajan).
Minor contradictions and improvements should be ignored as the
testimonies of prosecution witnesses, was recorded after about five years
of the incident.
17. We have carefully considered the respective submissions of
learned counsels on either side, perused the impugned judgment and other
material on record. Each aspect, relating to the prosecution allegations
regarding involvement of the Appellants, and the contentions made by the
parties, is discussed hereafter.
(A) Involvement of A-3
18. The material testimony regarding the presence of A-3 is that
of PW-13 (Jitender Nijara), injured in the incident. In his deposition
before the Court, he testified having been taken to ground floor at gun
point when he disclosed that the cash was kept in his mother‟s room, in
the ground floor. Thereafter two accused persons asked him at gun point
to lead them to his mother‟s room, threatening to kill his children if he
refused to co-opearte. He, thereafter, rang the bell of room on the ground
floor and his sister Renu responded, switched on the lights and opened the
main entrance gate. He instructed his sister to keep quiet since guns were
pointed at his head. The Accused persons threatened his mother to hand
over the keys of the almirah or see him die The accused snatched keys
from his mother and he was made to sit on a chair. Gold bangles were
removed from the hands of his mother and sister; the accused kept
threatening to kill all of them. He (PW-13) further testified that one
accused tried to misbehave with his sister and when he tried to resist, his
legs were tied. One more person came down from the first floor and
inquired about more cash. In the meantime, the accused were unable to
search more valuables. One of them shot him at point blank range on the
chest and he fell down. He heard more sounds of bullets firing. Within
5/7 minutes after receiving injury, he became unconscious. PW-13
Jitender identified A-3 present before the court to be the assailant who had
fired at him from point blank range on his chest.
19. No material contradictions have been elicited by the learned
defence counsel for A-3 in cross-examination to discard the testimony of
this injured witness. No suggestion was put that A-3 had not sustained
fire injuries at the hands of A-3. No suggestion was put if A-3 was not
armed with pistol/revolver at that time. The suggestion given was that the
assailants had covered their faces with handkerchief and the accused
persons were not the assailants.
20. The overall testimony of this witness reveals that he
categorically identified A-3 as the individual actively involved in the
incident and had shot him with a fire arm in the room in which his sister
and mother used to stay, on the ground floor. This injured witness had no
ulterior motive to falsely implicate A-3.The testimony of PW-13 (Jitender
Nijara) has been corroborated on material particulars by PW-7 (Renu). In
Court, she deposed that when she was sleeping in her room with her
mother, the house bell rang several times. She woke up and switched on
the light and saw that it was 4.50 AM. She went to the lobby and reached
the main door. She saw from the peep-hole, her brother Jitender‟s face.
She also noticed that two men were standing on either side of Jitender and
were pointing revolvers at him. She opened the door and her brother
asked her to keep quiet. Thereafter both intruders, armed with revolvers
took her brother into the room where she used to sleep. Her mother was
also in that room. Those men demanded that they should be given cash.
Her two gold bangles were removed by those men. Her mother handed
over keys of an almirah to them and they also removed eight gold bangles
which she was wearing. The Almirah was opened and articles kept inside
were thrown out. Those men continued abusing them and misbehaving
with them. She heard noise of firing from the first floor and in the
meantime a third man, who was outside came into the room and inquired
from his companions whether they had got cash. She further testified that
the third person fired in the air. Her brother Jitender was made to sit on a
chair and that man shot him on his shoulder. On hearing noise from
upstairs, the accused persons got perplexed and ran out.
21. PW-7 (Renu) also identified A-3 by pointing towards him
and stated that he had fired at her brother Jitender in her room. Cross-
examination of this witness also failed to reveal any discrepancy regarding
the role attributed to A-3 in the incident. She denied the assertion that she
had identified the accused as he was shown to her by the police. She
denied that she was unable to identify the accused persons as the
assailants were muffled and the lights in the house were switched off and
thus she was unable to see and identify the assailants.
22. The entire testimony of this natural witness whose presence
at the spot has not been challenged inspires confidence. She had no
ulterior motive to falsely identify A-3. She has fully corroborated the
version given by PW-13 (Jitender) that the firing incident in which he
sustained injuries had taken place in her room. Merely because this
witness failed to identify A-3 during test identification parade proceedings
is not a factor to dislodge the entire testimony of this witness regarding
the role played by A-3 in the commission of the offence.
23. PW-12 (Kaushelender) is another important witness
connecting A-3 in the commission of the offence. This witness also
deposed that after her sister-in-law Manju knocked at the door of his
room, he got up and went inside the room of Jitender. He saw two
persons standing and pointing guns towards Megha, Raghav and Radika.
When he entered in the room of Jitender, his brother Ravi apprehended
both the assailants present there. The accused fired from a desi katta
which they were carrying. In the meantime three persons also came there;
one of them had a revolver, the other had a desi katta and the third one
was armed with a chura. They fired indiscriminately. Consequently he
sustained injuries on the left side of his belly. He was further attacked
with the knife (chura). His brother Jitender received bullet injuries. He
was hit with the revolver butt on his head. He further testified that his
brother Jitender also received several injuries and he came to know about
that when he came down. A-3 present in the Court was having desi Katta.
This witness identified A-3 as the person involved in the dacoity
committed at his house during TIP proceedings conducted on 09.02.2001.
24. In the cross-examination this witness denied the suggestion
that the assailants were other persons and had covered their faces at the
time of incident. He denied the suggestion that he had identified the
accused at the instance of police. He further denied that he was called by
the police at Faridabad lock-up and the accused persons were shown to
him there or that the accused was shown to him prior to his TIP conducted
at Tihar Jail.
25. The overall testimony of this witness also reveals that he has
supported the case of the prosecution in its entirety. The presence of this
witness at the spot is not in controversy. This witness has no axe to grind
to falsely implicate A-3 in the commission of the offence as he himself
had sustained injuries in the incident. No suggestion was put to this
witness in the cross-examination that his brother Jitender had not
sustained injuries in the incident on the ground floor in the room of PW-7
(Renu). The testimony of this witness inspires confidence as he had
participated in TIP proceedings of A-3 and had identified A-3 correctly to
be one of the assailants who had committed dacoity in their house. There
is nothing on record to show if A-3 was ever shown to this witness prior
to the TIP by PW-39, Dr.Shababuddin, the learned MM. This witness had
sustained injuries and his brother met with death would be interested in
bringing home the guilt of the real offenders, and would not falsely
implicate an innocent individual. None of the accused including A-3 was
known to the witness prior to the occurrence; he bore no ill will or
animosity with any of the accused. The cross-examination has not
brought any material inconsistencies to doubt his testimony. This witness
not only identified A-3 during TIP proceedings but also identified him on
his appearance before the Court.
26. A-3 and A-4 were arrested by the police at PS City
Faridabad, in case FIR No.767/2000 under Section 395/397 IPC. PW-43
(Inspector Krishan Kumar) proved arrest of both A-3 and A-4 in the said
case. He recorded the disclosure statements of A-3 and A-4 in which they
revealed commission of the offences in the present case. He passed on
that information to the duty officer PS Punjabi Bagh and thereafter the IO
of this case came to the police station; he handed over the photocopies of
the disclosure statements marked X and Y to him. PW-42 (HC Jagmer
Singh) deposed on similar lines and stated that disclosure statements were
made by A-3 and A-4 in his presence and Mark X and Mark Y contained
his signatures. PW-31 also identified both A-3 and A-4 to be the persons
who had made disclosure statements Mark X and Mark Y. PW-35 (WSI
Umesh Bala) recorded the formal FIR No.767/2000 Ex.PW35/A in this
regard.
27. In the cross-examination of all these witnesses nothing was
suggested if at any time if A-3 and A-4 were shown by the police to the
public witnesses. There was no explanation how, and under what
circumstances A-3 and A-4 were present at PS City Faridabad which led
the Faridabad police to arrest them in FIR No. 767/2000 under Section
395/397 IPC.
28. PW-25 (SI Satish Kumar) arrested A-3 and A-4 on
19.01.2001 after getting information from the police of Harayana. A-3
refused to participate in TIP proceedings. A-4 agreed to participate in
TIP proceedings in which PW-12 (Kaushelender) identified him. In the
TIP proceedings conducted by PW-39 (Dr.Shababuddin, MM) no
suggestion was given to the witness that he had any acquaintance with the
Faridabad police to falsely implicate A-3 and A-4 in this case. No
specific date was suggested to this witness as to when A-3 and A-4 were
shown to the witnesses and if so to whom. If A-4 was sure that public
witness had already seen him at the lock up at Faridabad or in Delhi, there
was no occasion for him to participate in TIP proceedings.
29. PW-39 (Dr.Shababuddin) learned MM proved the TIP
proceedings (Ex.PW-39/A), where PW-12 identified A-3. Remand papers
on the record show that on 22.01.2001 the application was moved by the
concerned IO before Sh. Rajender Kumar, learned MM for issuance of
production warrants in respect of A-3 and A-4. It mentioned that both, i.e.
A-3 and A-4 had been arrested in case FIR No.767/2000 under Section
395 and 397 by the City Police, Faridabad, Haryana and there they had
made disclosure statements for the commission of the offence in this case.
Both A-3 and A-4 were present in judicial custody in Rohtak Central Jail.
The Learned MM issued production warrants for A-3 and A-4 for
31.01.2001. On 31.01.2001 again production warrants were issued for
05.02.2001. On 05.02.2001 both the said accused were produced before
Court and the IO moved an application for interrogation of A-3 for 30
minutes, which was allowed. Thereafter the IO moved an application to
conduct TIP proceedings. The order-sheet reveals that A-3 was taken to
the court, with his face muffled when the TIP application was moved.
Thereafter TIP proceedings were conducted by PW-39. All these
proceedings demonstrate that after moving the application for issuance of
production warrants, A-3 was in judicial custody and there was no
occasion for the police to show him to the prosecution witnesses, so that
they could identify him in this case.
30. PW-16 (Manju Nijhara) also supported the prosecution. She
too testified that her husband was taken to the ground floor at pistol point
by four assailants. She heard the sound of a bullet shot in the ground
floor but she did not know what happened there since she was in
Ravinder‟s room on the first floor, at that time. This witness pointed
towards A-3 as the person who had taken her husband Jitender on the
ground floor. Nothing material emerged from the cross-examination of
this witness to discard his testimony. Minor contradictions about the
number of assailants is not fatal to the prosecution case since the presence
of A-3 at the spot was described by this witness and had attributed a
specific role to him. Learned defence counsel has tried to encash the
statement of the witness in the cross-examination where she admitted that
the assailants had covered their faces with handkerchief on the day of the
alleged incident. The assertion of this witness is to be taken into
consideration in the overall context of her deposition. She categorically
identified A-3 as the person who had taken her husband on the ground
floor. There is nothing in the cross-examination to suggest that at that time
that A-3 had covered his face with handkerchief. The testimony of this
witness was recorded on 21.09.2005 after about five years. Some
discrepancies are bound to occur when a witness is examined after lapse
of so much time.
31. PW-1 Dr.Chander Mohan Bansal, Maharaja Aggarsain
Hospital, Punjabi Bagh proved the MLC Ex.PW1/D prepared by him
when he medically examined PW-13 (Jitender Nijara) who was taken to
the hospital with the history of assault with a fire arm. PW-1 found three
injuries on his person; one of them a punctured wound on the upper arm,
one on the lateral side and the another in the armpit and the last, a second
puncture wound on the right side of the chest near axilla. This witness
was not cross-examined by the accused. The medical evidence on the
record by the witness supplemented the ocular version given by PW-13
(Jitender) regarding injuries sustained by him when he was fired at point
blank range on the chest.
32. Testimony of all the witnesses referred above, thus
establishes beyond doubt presence of A-3 at the spot at the time of
occurrence and his participation in the commission of offence.
(B) Involvement of A-I
33. A-1 was arrested on 11.05.2000 by PW-25 (SI Satish Kumar)
and Inspector Suresh Kaushak when they were posted in the Anti Robbery
Section, of the Crime Branch. A-1, with his three associates was
apprehended at about 09.00 PM. and on his personal search, one loaded
country made pistol was recovered from his pocket. A case, FIR
297/2000, PS Saraswati Vihar was registered against A-1. PW-3, Head
Constable Balbir Singh, of PS Punjabi Bagh recorded a DD /Ex.PW-3/A
on receipt of information on telephone from ASI Bhrahm Parkash of
Crime Branch while working as duty officer on 12.05.2000. On receipt of
DD No.11/A dated 12.05.2000 Ex.PW3/C, PW-46 (Ram Singh) came to
know that A-1 was sent to judicial custody for a day by the Court of
Sh.M.C.Gupta, learned MM. On 13.05.2000 PW-46 (Ram Singh) moved
an application for conducting TIP of A-1 which was assigned to PW-29,
Sh.L.K.Gaur, the learned MM where A-1 was produced with his face in a
muffled condition. He expressed willingness to participate in TIP
proceedings. Accordingly (PW-29), Sh.L.K.Gaur, the learned MM fixed
the date for holding TIP as 16.05.2000. That day Sh.R.S.Chauhan moved
an application for postponing the date of the TIP. On that application
(Ex.PW29/B), PW 29 fixed the date -for holding TIP- as 20.05.2000. On
20.05.2000 PW-29 reached Jail No.5 Tihar for conducting TIP
proceedings. A-1, however, refused to participate in the TIP proceedings.
His statement was recorded by the learned Metropolitan Magistrate; A-1
stated that he did not want to take part in the TIP because after he was
caught he was kept in custody for three days; during that period, his
photographs were taken and a video recording was made. On the way to
Court, when he had to be produced, his face was shown to two persons
and on the same day when he was in the lock-up, he was also shown to
two women. PW-29 (Sh.L.K.Gaur) proved TIP proceedings Ex.PW29/C
and the certificate Ex.PW29/E regarding correctness of the proceedings.
34. The above discussion shows that A-1 opted to participate in
the TIP proceedings, when for the first time he was produced before the
concerned Metropolitan Magistrate in a muffled condition and when the
application for TIP was assigned to PW-29 (Sh.L.K.Gaur). At that time,
A-1 did not disclose if the police had shown him to the prosecution
witnesses. He was in judicial custody for the period between 16.05.2000
and 20.05.2000. When PW-29 reached on 20.05.2000 Tihar Jail to
conduct TIP proceedings, A-1 refused to participate in the TIP saying that
he had been shown to the police witnesses and was not interested in
participating in the TIP proceedings. It seems that the plea, taken by A-1
was an afterthought. He did not elaborate how and when he was shown to
the prosecution witnesses. This plea cannot be believed as he had
earlier consented to participate in the TIP proceedings.
35. PW-12 is a material witness to prove involvement of A-1 in
the incident. In his deposition before the Court this witness specifically
identified A-1 as one amongst those present, amongst the assailants. He
attributed a specific role to A-1 in the incident. This witness had
sustained bullet injury on the left side of his stomach. He further deposed
to having been attacked with a knife (chura). He identified A-1 as the
person with a chura and named A-1 as the person responsible for
inflicting the knife injury on him.
36. PW-40 (Dr.Amit Gupta) who medically examined PW-12
(Kaushelender) proved the MLC Ex.PW40/A. He deposed that the
injuries found on the the witness were dangerous and caused by fire arms
and a sharp object with blunt force. This witness was not cross-examined
by the accused. Thus, the deposition of PW-12 has been corroborated by
medical evidence. PW-7 (Renu) in her deposition before the Court
identified A-1 and stated that he had a knife. In the cross-examination she
stated that the knife was a quite long and its blade had „dante‟ like that of
„Ari‟ (serrated edges like in a saw). She volunteered to add that the
assailants had tried to tear her clothes with that knife, and therefore, she
could not forget that knife.
37. PW-8 (Rajiv Nijhara) also supplemented PW-7‟s version and
deposed that A-1 was the individual with a knife, besides the person who
had fired at him. This witness identified the knife/dagger Ex.P-1 which
was in possession of A-1 at the time of occurrence.
38. PW-13 (Jitender Nijhara) identified A-1 who had a dagger in
his hand and was first amongst those standing behind his daughter with
daggers and who participated in the dacoity incident.
39. PW-15 (Megha Nijhara) also identified A-1 though she stated
that he had a pistol in his hand when he entered her room. PW-15 pointed
towards A-1 as the person with a dagger and a pistol in his hand and who
had threatened her with a dagger and pistol.
40. Testimonies of above witness undoubtedly establish presence
of A-1 at the spot at the time of incident. All the material prosecution
witnesses identified A-1 during their deposition before Court. They
assigned a specific role to A-1 in the commission of the offence. PW-12
(Kaushelender) is an injured witness and A-1 had inflicted injuries with a
knife. No ill-will or ulterior motive was imputed to these witnesses in
their cross-examination to make for deposing falsely against A-1.
Nothing was suggested to the prosecution witnesses where else A-1 was
on the day of incident. Despite lengthy cross-examination of these
witnesses, nothing material was elicited to disbelieve the facts deposed by
them. A-1 failed to disclose as to how, from where and under what
circumstances he was arrested by the police of the Anti Robbery Section,
Crime Branch, New Delhi. He did not examine any of his family
members in defence to prove his presence at any place other than the
place of incident on that day.
41. The Prosecution further relied upon the circumstance of
recovery of the dagger Ex.P-1 at the instance of A-1 pursuant to his
disclosure statement. PW-46 deposed that when A-1 refused to
participate in the TIP proceedings on 20.05.2000, he moved an application
for his police custody remand for five days on 22.05.2000. On
23.05.2000 in the presence of PW-24 (HC Sunder Singh), A-1 was
interrogated and his disclosure statement Ex.PW24/A was recorded.
Thereafter A-1 led the police party to the spot of incident and pointing
out memo Ex.PW8/C was prepared. Thereafter A-1 led the police party,
consisting of PW-46, HC Sunder and members of the public Ajay
Mahajan and Rajeev Nijhara to a vacant plot located four plots away
from the place of incident. A-1‟s statement led to recovery of a dagger
from the grass in the plot. A sketch of the dagger Ex.PW8/A was
prepared, it was sealed and seized by seizure memo Ex.PW8/B. A site
map of the place of recovery of dagger Ex.PW46/H was also prepared.
The dagger Ex.P-1 with cover was recovered at the instance of A-1.
42. PW-11 (Ajay Mahajan) supported PW-46‟s deposition and
testified that on 23.05.2000 at about 7.00 PM. the police had taken A-1 to
the spot. There he was identified by family members of the deceased as
one present amongst the assailants on 07.05.2000. He further deposed
that in his presence A-1 led to recovery of the dagger Ex.P-1 from the
vacant plot and that it was seized by the police. The testimonies of PW-8
(Rajiv Nijhara) and PW-24 (Janak) are on similar lines.
43. On a consideration of the statements of these witnesses, what
the prosecution was able to prove that A-1 led the police team to the spot
and at his instance in pursuance of his disclosure statement the dagger P-1
was recovered from a vacant plot situated near the place of incident. The
testimony of PW-11 (Ajay Mahajan), an independent public witness, on
this aspect cannot be disbelieved. No enmity has been alleged against A-1
to force PW-11 (Ajay Mahajan) to make a statement against him. All the
witnesses to the recovery have supported each other and no material
discrepancies can be seen from a comparison of these
44. The recovery of the dagger Ex.P-1 lends credence to the
prosecution case regarding presence of A-1 at the spot as all prosecution
witnesses testified that A-1 was armed with a dagger/knife at the time of
incident and had inflicted injury on the person of PW-12 (Kaushelender).
All the prosecution witnesses, therefore, identified A-1 as one of those
present at the spot during the time of the incident. PW-15 (Megha
Nijhara) even deposed that the assailants had talked to her for about ten
minutes and therefore she was able to identify the accused. The evidence
on record points to the accused having been at the spot for sufficiently
long to enable the prosecution witnesses to identify them. .
(C) Involvement of Nizam @ Titoo (A-4)
45. A-4 was arrested with A-3 by the Faridabad police in FIR
No.767/2000 under Section 395/397 IPC. As discussed above, his
disclosure statement mark „Y‟ was recorded and he disclosed about
commission of the present offence. Subsequently he was arrested by the
police of PS Punjabi Bagh.
46. After A-4 was produced before the Court pursuant to the
production warrants issued, an application was moved by PW-25 for
conducting his TIP proceedings. PW-39 (Dr.Shababuddin), learned MM
conducted TIP proceedings 24.02.2001 when A-4 was produced before
him in muffled face. A-4 refused to participate in the TIP proceedings
stating that he had been shown to the witnesses in the police station. He
was warned by PW-39 (Dr.Shababuddin) that refusal to take part in the
TIP proceedings would draw adverse inference against him. Despite that,
he refused to take part in TIP proceedings. PW-39 (Dr.Shababuddin)
recorded his statement and proved the TIP proceedings (Ex.PW-39/A).
This witness was not cross-examined. Since A-4 remained in judicial
custody prior to 24.02.2001, there hardly any possibility for the police to
show him to the prosecution witnesses.
47. PW-13 (Jitender Nijara) in his deposition identified A-4 as
the one who pointed a gun at his daughter and forced her to sit in the
room. PW-15 (Megha Nijhara) also recognised A-4 and testified that he
was armed with a dagger in his hand when he entered her room along with
other accused person. PW-16 (Manju Nijhara) assigned a specific role to
A-4 while identifying him and deposed that all the four accused present in
Court were the same assailants who had robbed and looted them. She
pointed at A-4 and deposed that he was present, with A-3 and went down
stairs along with him. A-4 was standing in the balcony in the dark at that
time. PW-12 (Kaushelender) deposed to being sure that besides Jamal
Mirza (A-1) and Mohd. Faruq @ Mohd.Raju (A-2) the other two accused
were also involved in the dacoity committed at his house.
48. The statements of these witnesses, identifying A-4 as one
amongst the assailants, cannot be doubted. They withstood searching
cross-examination and nothing material could be elicited to disbelieve
them.
49. These witnesses had no prior acquaintance with the accused.
A-4 did not also claim that he was somewhere else, on the date of
occurrence. We, consequently, see no reason to disbelieve the
prosecution witnesses regarding identification of A-4.
(D) Involvement of Mohd. Faruq @ Mohd.Raju A-2
50. As noticed earlier, A-2 had also filed appeal against the
impugned judgment. He was, however, directed to be released as he was a
juvenile on the date of occurrence i.e. 07.05.2000. By order dated
18.04.2011, A-2 was ordered to be released as he had already remained in
custody for over three years. No further discussion is thus required
regarding the role played by A-2 in the commission of the offence.
(E) Incident
51. The dacoity has not been disputed by the Appellants. It is
also not in controversy that during the incident one of the inmates
Ravinder @ Ravi was shot dead. PW-6 ( Dr.Komal Singh) proved the
post-mortem report Ex.PW-6/A where in her opinion the cause of death
was haemorrhagic shock due to fire arm injury to the lung. All injuries
were ante-mortem and were of the same duration. PW-1 (Dr.Chander
Mohan Bansal) proved the MLC of injured Rajiv and Kaushal Ex.PW1/A
and Ex.PW1/B respectively. They had also sustained injuries in that
incident. PW-40 (Dr.Amit Gupta) opined that the injuries sustained by
PW-12 (Kaushelender) were dangerous and caused by fire arm plus sharp
object with blunt force. We are also of the view that incident cannot be
fabricated by the prosecution witnesses.
52. The plea of the Counsel for the Appellants is that they were
not the perpetrators of the crime and were falsely implicated by the police
just to solve the case. We do not subscribe to this view as the Appellants
were apprehended on different dates, by the police personnel of different
police stations for commission of different offences. A-3 and A-4 were
even arrested by the police of Faridabad police. It cannot be assumed that
the police were engaged in an inter-state conspiracy, to falsely implicate
the Appellants. . Similarly, the argument that the Appellants were falsely
implicated because they were Bangladeshi nationals, is unconvincing.
Their arrest, on different dates, long after the incident shows that the
police did not have any such ulterior motive to implicate them merely
because they were Bangladeshis. The material on record shows that at the
time of arrest of A-3 in case FIR No.299/2000 PS Saraswati Vihar one
Ibrahim, s/o Abdul Raseed resident of Bangladesh was also arrested.
However, he was not involved in this case. This fact too belies the
Appellants‟ contention.
(F) Discrepancies, TIP proceedings etc.
53. The Appellants had sought to highlight contradictions,
improvements and inconsistencies in the statements of prosecution
witnesses; they were dealt with by the Trial Court in the impugned
judgment. We find no reasons to interfere in the findings on that aspect.
Minor contradictions or discrepancies in the statements of prosecution
witnesses are bound to occur when they are recorded after lapse of a long
time.
54. In the present case, six strangers had sneaked inside a
residential house at the dead of night. They were armed with deadly
weapons. They had threatened to kill the inmates including minor
children. Not only did they ransack the house, they used deadly weapons
in causing dangerous injuries. One of the residents was shot dead. The
Court can well understand the mental trauma/stress of inmates on
witnessing such a horrible scene. It is not always easy for an eye-witness
in such a situation to a ghastly murder to register the precise details
regarding number of the assailants; the minute role played by each of
them and the assailant who inflicted the injuries and on which part of the
body of the injured. An incident of dacoity cum murder is often a heart
rending spectacle in which even a witness wholly un-connected to the
assailant or the victim may be traumatized by the violence, involving the
killing of a human being in cold blood. To expect from witnesses who go
through such a night-marish experience, meticulous narration and recall of
events, detailing who hit whom at what precise part of the body etc. is a
tall order. The Courts have to be realistic in their expectations from
witnesses and go by what would be reasonable based on ordinary human
conduct with ordinary human frailties of memory, the power to register
events and recall the details. A witness who is terrorised by the brutality
of the attack cannot be disbelieved merely because he is imprecise in his
description of who hit the deceased on what part of the body or the nature
of arms or weapons that a particular assailant had. There is some mix-up
or confusion. It is the totality of evidence on record and its credibility that
would eventually determine whether the prosecution has proved the
charge against the Appellants. Slight discrepancies which do not shake the
basic version of the witnesses cannot be given undue weightage or
importance to dislodge the prosecution‟s case. Such variations creep in
because there are always natural differences in the faculties of different
individuals in the matter of observation, perception and memorization of
details.
55. In the present case, all material witnesses have fully narrated
the sequence of incident minutely in graphic details; have categorically
identified the Appellants to be among the assailants; assigned specific role
in the participation of the occurrence. The Appellants had consciously
refused to participate in the TIP proceedings. They cannot now contend
that they were identified by the prosecution‟s witnesses for the first time
in the Court. There was no long time gap between the date of arrest of the
Appellants and their production in the Court and the applications moved
by the police for getting their TIPs conducted. Furthermore, no plausible
reasons have been given by the Appellants for their alleged false
implication. The Court is also conscious of the fact that the witnesses who
deposed during the trial, and also participated in the TIP, were residents of
the house; some of them were injured. They were also interested in
ensuring that the real assailants instrumental in causing death of their
close relatives in the incident, were brought to book.
56. It is also important to recollect that all prosecution witnesses
had occasion to interact, or were in confrontation with the accused, during
the attack and incident. The attackers had stayed inside the house for
sufficiently long time and had moved freely from one place to another.
The house lights had been switched on at that time. The assailants had
conversed with the inmates of the house. The prosecution witnesses
narrated details how the assailants accomplished their mission. All these
circumstances clearly show that the witnesses got full opportunity to see
and identify the Appellants. There is thus no reason discarding their
testimonies.
57. The Learned Counsel for the Appellant in Crl. Appeal No.
813/2009, argued that upon the accused refusing the TIP, they were not
assisted by the Consular Officers of their country, i.e., Bangladesh, as
provided by the Vienna Convention on Consular Relations, 1963 which
India has ratified. He argued that it was the prosecution‟s case itself that
the Appellants were Bangladeshi nationals, and so they should have been
accorded the rights assigned to them under this treaty. The relevant
article-Article 36 (1) (b)- relied on by the Counsel has been reproduced
below:
"(b) if he so requests, the competent authorities of the receiving
State shall, without delay, inform the consular post of the sending
State if, within its consular district, a national of that State is
arrested or committed to prison or to custody pending trial or is
detained in any other manner. Any communication addressed to the
consular post by the person arrested, in prison, custody or
detention shall be forwarded by the said authorities without delay.
The said authorities shall inform the person concerned without
delay of his rights under this subparagraph"
58. According to counsel, this is a fatal irregularity in the trial of
the Appellants, and a consequent subversion of the procedure established
by law. Since he has relied on the fact of India‟s ratification of this treaty
to make this contention, the position of law with respect to the
enforceability of international treaties in India needs to be examined.
59. The Supreme Court‟s ruling in Jolly George Verghese v.
Bank of Cochin 1980 (2) SCC 360 is that treaties entered into by the
Union of India do not become enforceable in the courts and neither do
they become part of the domestic law of India. Yet, they can be
assimilated as aids to interpretation of the Constitution of India, to the
extent their provisions are not inconsistent with municipal law. Justice
Krishna Iyer elucidated on this point thus:-
"India is now a signatory to this Covenant and Art. 51(c) of the
Constitution obligates the States to "foster respect for international
law and treaty obligations in the dealings of organized peoples with
one another." Even so, until the municipal law is changed to
accommodate the Government what binds the court is the former,
not the latter."
60. In People's Union for Civil Liberties v. Union of India
(1997) 3 SCC 433, the Supreme Court had said that:
"The main criticism against reading such conventions and
covenants into national laws is one pointed out by Mason, CJ.
Himself, viz., the ratification of these conventions and covenants is
done, in most of the countries by the Executive acting alone and
that the prerogative of making the law is that of the Parliament
alone, unless the Parliament legislates, no law can come into
existence. It is not clear whether our Parliament has approved the
action of the Government of India ratifying the said 1966 Covenant.
Assuming that it has, the question may yet arise whether such
approval can be equated to legislation and invests the covenant
with the sanctity of a law made by Parliament. As pointed out by
this Court in S.R. Bommai v. Union of India MANU/SC/0444/1994 :
[1994]2SCR644 , every action of Parliament cannot be equated to
legislation. Legislation is no doubt the main function of the
Parliament but it also performs many other functions all of which
do not amount to legislation. In our opinion, this aspect requires
deeper scrutiny than has been possible in this case. For the present,
it would suffice to state that the provisions of the covenant, which
elucidate and go to effectuate the fundamental rights guaranteed by
our Constitution, can certainly be relied upon by courts as facets of
those fundamental rights and hence, enforceable as such."
61. It can therefore be seen that there is no automatic acceptance
of an international treaty, even post ratification, as domestic law in India.
It only becomes binding as law once Parliament has indicated its
acceptance of the ratified treaty through enabling legislation. Since no
such legislation exists, this treaty is not binding, and therefore, non -
compliance with its provisions does not result in a violation of the
procedure established by law. The only rider is that if the standard
postulated in the covenant or international treaty is consistent with Indian
law, the same can be considered as an aid to interpretation of the relevant
provision of municipal law.
62. The safeguard provided for in the Article of the Convention
in the present case, is to ensure that the foreign national who has been
arrested or detained is not denied his basic human rights and pertinently is
afforded effective legal assistance in a criminal trial. The Right to Life as
contained in Article 21 of the Constitution of India is available even to
foreign nationals in India, and the right to legal representation has been
read into this right in Khatri and Ors . State of Bihar (1981)SCC(Cri)235
and Hussainara Khatoon v. State of Bihar ( 1980 ) SCC(Cri) 35.
In Hussainara Khatoon the Supreme Court has held:
"It is now well settled, as a result of the decision of this Court in
Maneka Gandhi v. Union of India, MANU/SC/0133/1978 :
[1978]2SCR621 that when Article 21 provides that no person shall
be deprived of his life or liberty except in accordance with the
procedure established by law, it is not enough that there should be
some semblance of procedure provided by law, but the procedure
under which a person may be deprived of his life or liberty should
be 'reasonable, fair sad 'Just', Now, a procedure which does not
make available legal services to an accused person who is too poor
to afford a lawyer and who would, therefore, have to go through the
trial without legal assistance, cannot possibly be regarded as
'reasonable, fair and just'. It is an essential ingredient of
reasonable, fair and just procedure to a prisoner who is to seek his
liberation through the courts process that he should have legal
services available to him."
63. Since the Appellants in the present case were given legal
representation, the object of Article 36(1)(b) is satisfied. The non
compliance with a procedural safeguard, contained in the Convention, of
notifying the consulate or embassy of the foreign national, that he is
facing trial, does not in such an event lead to such prejudice as to vitiate
the trial itself. At best the procedure can be viewed as directory; as long as
the Court ensures legal assistance or legal aid, implicit in Article 21 of the
Constitution, the non-compliance with Article 36 (1) (b) at least in the
present instance has not led to any miscarriage of justice. Therefore, the
Counsel‟s argument that the trial of the Appellants was in contravention
of the procedure established by law has no merit.
(G) Conclusion
64. We find unclinching evidence pointing un-mistakably to the
guilt of all the appellants. We find no illegality or irregularity in the
findings recorded by the Trial Court basing conviction of the Appellants.
We see no reasons to interfere with the view taken by the Court below.
The appeals are accordingly failed and are hereby dismissed.
(S.P.GARG)
JUDGE
(S. RAVINDRA BHAT)
JUDGE
January 27, 2012
sa
