Mohd. Shamim & Ors. vs The State Through Govt. Of Nct Of ...
2013 Latest Caselaw 5890 Del

       $~
       *IN THE HIGH COURT OF DELHI AT NEW DELHI

       +          Crl.Appeal Nos.246/2010, 265/2010, 378/2010 & 917/2010

       %                                     Date of Decision: 20th DECEMBER, 2013

                                     +         Crl.Appeal No.246/2010

       MOHD. SHAMIM & ORS.                                                   ..... Petitioner
                        Through                             Mr.K.K. Verma, Advocate

                                                            Versus

         THE STATE THROUGH GOVT. OF NCT OF DELHI .... Respondent

Through Ms.Ritu Gauba, APP for the State

WITH

+ Crl.Appeal No. 265/2010

KANHAIYA LAL @ MOTTU SON OF NEK RAM ..... Petitioner Through Mr.R.C. Tiwari, Advocate

Versus

THE STATE THROUGH GOVT. OF NCT OF DELHI .... Respondent Through Ms.Ritu Gauba, APP for the State

AND

+ Crl.Appeal No. 378/2010

SONU ..... Petitioner Through Ms.Nandita Rao and Ms. Neha, Advs.

Versus

THE STATE THROUGH GOVT. OF NCT OF DELHI .... Respondent Through Ms.Ritu Gauba, APP for the State

AND

+ Crl.Appeal No. 917/2010

PRADEEP KUMAR ..... Petitioner Through Mr.F. Haq, Adv.

Versus

THE STATE THROUGH GOVT. OF NCT OF DELHI .... Respondent Through Ms.Ritu Gauba, APP for the State

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE V.K. SHALI

GITA MITTAL, J

1. The above appeals have been filed by the appellants assailing the

judgment dated 15th December, 2009 whereby they have been convicted for

commission of offences under Sections 394, 397, 120B read with Section

302/34 of the Indian Penal Code and the order of sentence dated 18th December,

2009 passed as a result thereof. Inasmuch as all the appellants stand convicted

for commission of the same offence on the 13th December, 2003 upon a joint

trial and raise similar questions of law and fact, these appeals are taken up

together for consideration.

2. The case of the prosecution was that on the 13th December, 2003, PW-4

S.P. Narula came to the Police Station Friends Colony, New Delhi in an injured

condition and informed that certain anti-social elements had looted his house

bearing no.D-826, New Friends Colony, New Delhi. DD No.51-B was recorded

at the police station and SI Ram Baresh was sent at the spot. They found Smt.

Soharsh Narula, wife of Shri S.P. Narula and his servant PW-5 Shatrughan Rai

in an injured condition with the household articles scattered in the house. Smt.

Soharsh Narula as well as Shatrughan Rai were sent to the Holy Family

Hospital for treatment while complainant Shri S.P. Narula was sent to the All

India Institute of Medical Sciences (AIIMS) through PCR No.E-27. Constable

Sudesh Kumar and Constable Jagdish reached the house and were left at the

spot for its preservation.

3. PW 4 Satya Paul Narula was declared fit for statement by the doctors at

the AIIMS. On his statement, a case being FIR No.539/2003 was registered by

the Police Station New Friends Colony, New Delhi under Sections

395/396/397/120B/412/307/34 of the Indian Penal Code and Sections 27/54/59

of the Arms Act.

4. So far as the statement of PW 4 Shri S.P. Narula is concerned, he had

informed the police that on the 13th December, 2003, he had gone to a satsang at

5.15 p.m. at the Safdarjung Development Area as per his daily routine and had

returned to his residence only at 8.10 p.m. when he found the lights of gate and

porch switched off. He switched on the light and proceeded to the first floor.

When he heard the cry of his wife, he went in the drawing room and saw that

his wife had been caught hold by two boys who had also tied the hands of the

domestic servant Shatrughan and had made him to lie down. PW 15 Sandeep

Surma, a property dealer was also present whose mouth had also been tied up.

5. When PW 4 resisted the efforts of these boys to tie his hands, one of them

hit him from behind as a result of which he fell down. The complainant states

that he started raising a hue and cry whereupon one of the intruders hit him and

his servant Shatrugan Rai with the dagger (chhura) and also caused injury to his

wife Soharsh Narula. His wife tried to raise a hue and cry, whereupon one of

the boys pressed her mouth and then tied the complainant‟s hands as well as the

hands of his wife. The hands of PW 15 Sandeep Surma and PW 5 were tied

behind their backs. Two of these boys then threatened and overpowered them

while the other two boys ransacked and looted their house.

6. These boys took away a Citizen‟s watch and a gold chain with an Om

pendant as well as the mobile phone from PW 15 Sandeep Surma. They

snatched a Seiko watch from the complainant (PW 4) and also, broke open the

locks of the Almirah and looted articles therefrom.

7. So far as the description of these boys is concerned, the complainant had

informed the police that the boys were between 20-25 years of age. While one

of them was of wheatish complexion, the other was of dark complexion. The

boy who was armed with the dagger was wearing a jacket while the dark

complexioned boy was carrying a pistol which he had positioned on the left

temple of the complainant to intimidate him. The other two boys who had

looted the house were of average physique. These boys had also cut the

telephone line. PW 5 Shatrugan Rai had somehow untied the complainant‟s

hands. As there was no telephone available, the complainant rushed to the

police station and made the afore-noticed complaint.

8. The site was visited by the crime team with the dog squad. The dogs

followed the trail of the accused persons upto the main gate of the house. A

site plan of the spot was made at the instance of PW 15 Sandeep Surma and the

blood; `sootrassi (cotton rope); blood stained gauze and a blood stained muffler

were seized and sealed by the police and taken into possession.

9. As per SI Ram Baresh, he had proceeded to the Holy Family Hospital

where he learnt that Soharsh Narula had been declared as having been brought

dead and that she had been taken to the mortuary of the All India Institute of

Medical Sciences in the custody of Constable Raj Singh.

10. PW 5 Shatrugan Rai was discharged after treatment. His MLC was

proved in the evidence of PW 7 Dr. Anjana Kharbanda, CMO of Holy Family

Hospital who had stated that the she had prepared his MLC vide no.3.53792

(Exh.PW 7/A) and that Shatrughan Rai was having stab injury over his chest

which was grievous in nature.

11. PW 7 Dr.Anjana Kharbanda also proved the MLC No.3.53793 (Exh.PW

7/B) pertaining to Soharsh Narula who was declared brought dead in the

casualty. PW 7 had also issued the medical certificate Exh.PW 7/A regarding

Soharsh Narula having been brought dead to the hospital. PW 7 Dr. Anjana

Kharbanda had opined the cause of her death as „strangulation‟ in the certificate

issued by her.

12. It is in evidence that on 15th December, 2003, a post-mortem was

conducted on the dead body of Soharsh Narula by Dr. Prashant Kulshrestha

vide the post mortem report no.1296/03 (Exh.PW 24/A). It is necessary to

notice the material contents of the report of the post-mortem conducted on the

dead body of Mrs.Soharsh Narula. The same has been proved in the evidence

of PW 24 Dr. Raghuvendera, a junior resident from the Department of Forensic

Sciences of AIIMS. So far as the external injuries on the body of the deceased

was concerned, the report has noticed the following injuries:-

"On postmortem examination there were external injuries present. Abrasion size 1.4 cm length at lower end of left forearm. Another abrasion size 2.5 x 3 cm over lower back right side. One contused abrasion of size 1.5 cm x 0.5 cm over left mandibular angle. One laceration of size 3.1 cm below the right eye. One laceration of size .5 cm x .5 cm over lower lip. Nasal bone fracture."

As per the opinion of the expert, the cause of death was opined as

"asphyxia as a result of smothering which was sufficient to cause death in the

ordinary course of nature". So far as the injuries were concerned, it was opined

that they were blunt force injury.

13. During investigation, the police recorded the statement of Ms. Anuja,

(examined as PW 1 during the trial) the daughter of the deceased, who also

deposed in court as the first prosecution witness. Though not an eye-witness,

she played a vital role in preparation of the list of missing jewellery articles as

well as identification of the recovered articles. According to PW 1 - Anuja, on

the 13th December, 2003, she had left the house no.D-826, New Friends Colony,

New Delhi at about 3:30/4:00 p.m. to visit a temple in Karampura with her

friend. When she returned to the house the next day i.e. 14th December, 2003 at

about 10:00 a.m., she was informed about the robbery committed in her house

and the fact that her parents were in hospital. She later found that her father was

admitted in AIIMS and that her mother had died. Her sister had found a packet

with a courier‟s address on the envelope in the house which was handed over to

the police vide memo Exh.PW 1/A. PW 1 also stated that she had handed over

a hand written list of missing articles which were initially noticed as missing

from the house about two or three days after the incident. The prosecution has

proved this list as Exh.PW 1/C. On 4th February, 2004, PW 1 Anuja, daughter

of the deceased handed over another typed list of missing articles (Exh.PW 1/B)

to the police. According to this witness, she had also prepared a handwritten list

of still missing stolen articles (Exh PW 1/C) which was given to the police by

her father on 18th December, 2003. Photographs of missing jewellery items

(Exh.PW 1/D-1 to D-5) when they had been worn by the deceased mother,

sister and herself were also shown to the police. These photographs along with

other photographs were also handed over by this witness to the police.

14. As per the prosecution, secret information was received by PW 13-SI

Suresh Sharma (who was then posted as Sub-Inspector in the Special Staff,

South District) regarding presence of the accused in the present case in the

Badarpur market. He was deputed to pass on this information to the SHO of the

police station New Friends Colony. On the directions of the SHO, a raiding

party was constituted consisting of PW 13-SI Suresh Kumar, PW 22-SI Prasun;

Head Constable Ram Kishan of Special Staff, South District; SI Ram Baresh;

ASI H.A. Khan; Ct. Ranbir and Ct. Jagdev.

15. The raiding party proceeded to the Badarpur market in a Government

vehicle where they met the informer. On the pointing out of the 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 Mohalla, Tuglakabad Extension and got recovered other jewellery

items from his house which were part of the robbed articles. The investigating

officer seized the articles vide Exh.PW 13/G.

17. Mohd. Shamim also took the police team to his house at Jhuggi No.228,

Gola Kuan, Tehkhand, Okhla and got recovered a pulanda from below the

wooden door on the roof of the house which pulanda contained nine jewellery

articles consisting of one kara, one ear tops, one ladies ring, two brooches one

silver chain, one silver chain along with pendent, one gold chain and pair of ear

rings. Mohd. Shamim also got recovered one desi „katta‟ (weapon) of .315 bore

and one live cartridge. The jewellery articles, the „katta‟ and the cartridge 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. PW 22 - SI 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 involved in the offence in

question. Their voluntary disclosures also led to the recovery of stolen

properties (jewellery items) which were recovered vide memo Exh.PW 13/G

and 13/W. The case property 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 SI Prasun also identified the case property which was recovered from

the accused Mohd. Shamim.

19. It is in the evidence that one gold chain with an 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 further in the evidence led by the

prosecution that the appellants Pradeep and Shamim thereafter took the police

team to the TSR stand in Tehkhand, Okhla. On the pointing out of the accused

Shamim, Kanhaiya Lal @ Mottu son of Nek Ram was apprehended. His

voluntary disclosure statement was recorded vide memo Exh.PW 13/L.

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 IO who

prepared a sketch thereof vide memo Exh.PW 13/M.

20. 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 of 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 IO 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 13/S & T.

21. Thereafter, the accused persons are stated to have taken the police team to

Gali No.19, Ratia Marg, Sangam Vihar, Delhi and on the pointing out of the

accused persons, accused Kanhaiya Lal S/o Laxmi Narain was apprehended. It

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 of his house, which were also seized by the police.

22. These accused persons were identified by PW 13 SI Suresh Sharma as

well as PW 22 SI Prasun in the witness box. These two police witnesses also

identified the case property recovered from these persons respectively.

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 Mohd. 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 1RC 8210 was arrested and from his

possession, a bank note of Rs.500 was recovered along with his three wheeler

scooter.

25. One Amjad Khan (since deceased) surrendered before the court who is

alleged to have sold country made revolver to the appellant Shamim.

26. The Test Identification Parade of the recovered articles was conducted in

the presence of PW 22- Ms. Ila Rawat, Metropolitan Magistrate by PW 1 Anuja,

daughter of the deceased and of some the articles by PW 15 Sandeep Surma. 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

court. 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

under Section 412 of the IPC was found made out against the accused Dharam

Pal and Manish Soni. Furthermore, a case under Section 27/54/59 of the Arms

Act was found made against the accused Kanhaiya, son of Nek Ram. Charges

were accordingly drawn up against accused persons by the order dated 6th

October, 2004 to which they pleaded not guilty and claimed trial.

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 opportunity to explain the same in their

statements recorded under Section 313 of the Cr.P.C.

29. The appellants opted to lead defence evidence. Mohd. Shamim; Sonu;

Kanhaiya (son of Laxmi Narain); Kanhaiya (son of Nek Ram) and Pradeep lead

defence evidence to establish that they had been arrested 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 court 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 robbery and not dacoity. It was

also held that the accused Manish Soni & Dharam Pal, though charged for

commission of offence under Section 412 of the IPC, were guilty of offences

under Section 411 of the IPC. 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 for conspiracy to commit offences under Section

394/397 as well as 302 of the IPC.

32. It was held that the appellants Mohd. Shamim; Kanhaiya (son of Nek

Ram); Kanhaiya (son of Laxmi Narain) Pradeep & Sonu were guilty of

commission of offences under Section 394 IPC read with Section 397 of the

IPC. Furthermore, Kanhaiya (Son of Nek Ram) Mohd. Shamim; Pradeep and

Sonu were found guilty of commission of offence under Section 302/34 IPC.

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; arrests and the recoveries is

implausible and cannot be believed. The appellants also challenge as improper

their identification of the four appellants by PW 4 Shri S.P. Narula; PW 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

deceased and, therefore, no injuries were inflicted on the body of the deceased

by any of the appellants.

36. It is further 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 of the 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. It is urged that the appellants had no intention to cause such injury as

would result in the death of any of the 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 PW 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

13th 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.

When he opened the door of drawing/dining room, somebody hit him thrice on

his head and he started bleeding. PW 4 stated that to protect himself, he held

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 three 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 of the persons tied the

left leg of PW 4 with his wife‟s right leg.

41. PW 4 Shri S.P. Narula identified the accused Santosh, Pradeep, Kanhaiya

(son of Nek Ram) & Sonu as the intruders who had come to the house and were

involved in the incident. They had overpowered his wife and stabbed him with

a "churra".

42. PW 4-Shri Satya Paul Narula 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 of the

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

time, PW 4 told their servant, PW-5-Shatrughan Rai to untie his hands and go to

the neighbour Mohan to get his hands untied.

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 Surma 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 knife

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 knife 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 room.

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-Mr. S.P. Narula as

well as PW 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 Surma to

another room while they kept Mr. & Mrs. Narula and PW 5 in one room. These

intruders looted the house. PW-5-Shatrughan Rai identified Kanhaiya (son of

Laxmi Narayan); Pradeep; Sonu who were present, as three who had entered the

house had beaten Mr.& Mrs. Narula, Sandeep and himself. The witness also

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 of the intruders as by this witness is therefore unreliable.

45. The testimony of PW 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 13th 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 8.00 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 knife-

carrying 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 drawing room after giving them a beating.

The witness identified the appellant-Pardeep as the person who was carrying the

knife and the appellant - Mohd. 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 (Mr. Narula) into the house. The intruders were

demanding keys from Mrs. Soharsh Narula. When the intruders did not get the

keys from her, one of them tied her hands from behind while others gagged her

mouth by putting piece of cloth into it. PW-4 - Col. S.P. Narula cried out on

reaching the spot, whereupon Mohd. Shamim hit Mr.Narula on his head with

the butt of the 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 PW 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. PW 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 present 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 of the witnesses establishes the prosecution

case beyond any doubt qua the appellants. The defence led by the appellants

has been rightly rejected by the learned trial judge.

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 lines and immobilized the occupants including the

domestic servant PW5 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 Court.

PW15 Sh.Sandeep Surma 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

breath and she suffered asphyxia and consequently could not survive. It is also

recorded in the MLC of the victim/deceased Mrs.Soharsh Narula that she was

brought dead. All these facts clearly show that the injuries were inflicted upon

the deceased Mrs.Soharsh Narula were likely to cause death. Mrs.Soharsh

Narula died because of 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 were 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 arms.

Unfortunately the appellants 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,

but it certainly does fall in the third category that the nature of injuries were

such which were within the knowledge of the accused persons to be of such a

nature as would cause the death of the victim. The knowledge 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

ensure that the appellants succeed in committing the offence of robbery without

any resistance from the occupants of the house. Therefore, in our view, the

offence of death of Mrs.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 Part II.

50. In this background, we hold the appellants guilty of culpable homicide

not amounting to murder punishable under Section 304 Part II of the 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. Shamim, Soni & Pradeep, guilty for commission of offences under

Sections 302/304 as well as 394/397 IPC. For their conviction, under Section

394/397 IPC, the trial court has sentenced them to life imprisonment and fined

them in the sum of Rs.2,000/- 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 life 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 awarded to them.

It was also directed that the substantive sentences of imprisonment

awarded to the appellants shall run concurrently.

54. It is noteworthy that the prosecution had also arrayed one Kanhaiya Lal

son of Laxmi Narain, 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.285/2010 which was accepted by this

court by its judgment dated 17th 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 of the 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 17th September, 2013. The evidence on

record also reflects that only the four appellants entered the house to commit the

offence of theft and cause injury to the occupants of the house. Kanhaiya son of

Laxmi Narain stands acquitted of the charges.

56. We have found that pursuant to a criminal conspiracy, the appellants

entered the house of the deceased to commit robbery. In order to commit the

robbery, they not only put fear of instant hurt but actually caused hurt and

wrongfully restrained the deceased Smt. Soharsh Narula, her husband Shri S.P.

Narula, their servant Shatrugan Rai as well as a visitor Sandeep Surma in the

house. They forcibly and dishonestly took away valuables from these persons

as well as from the house which have been recovered at their instance.

57. The above discussion also reflects the grievous injuries caused by the

appellants to Smt. Soharsh Narula, her husband (PW 4 Sh. S.P. Narula), servant

(Shri Shatrughan Rai) and their visitor (PW 15 Sandeep Surma) while

committing the robbery. We have held that the appellants had the knowledge

that the injuries inflicted on Soharsh Narula could result in her death. The

injuries actually resulted in her death. The appellants also succeeding in

commission of the robbery.

We hold that the appellants have rightly been found guilty for entering

into conspiracy under Section 120B IPC for commission of offences under

Sections 394/397 of the IPC. We also find the appellants guilty for commission

of the offences under Section 394/397 and Section 299 of the IPC.

The judgment of the trial court finding the appellants guilty of

commission of offence under Section 302 IPC shall stand modified to this

extent.

58. Before us, it has been fervently prayed that the appellants are extremely

young and first time offenders. By now they have undergone imprisonment of

over nine years. Other than the Sonu whose sentence was suspended for a short

period between 22nd April, 2008 to 29th April, 2008, the appellants have

remained continuously in jail since they were arrested on 24 th December, 2003.

We have held that they entered the house of the deceased pursuant to the

conspiracy to commit robbery. Grievous injuries resulted in their acts to

overcome the resistance by the occupants of house and silence protests. We

have found the appellants guilty of commission of the offence under Section

299 of the Indian Penal Code and have modified their conviction under Section

302 of the IPC.

59. So far as the sentence which must be imposed on the appellants for

commission of the offence under Sections 394/397 of the IPC is concerned, we

hereby sentence each of the appellants to undergo rigorous imprisonment for a

term of ten years and also sentenced to pay fine in the sum of Rs.2,000/-. The

appellants shall not be entitled to any remissions in the sentences. In case of

default of payment of fine, the appellants shall undergo simple imprisonment of

three months.

60. For the commission of the offence under Section 299 of the IPC

punishable under Section 304 part II, we hereby impose on each of the

appellants the sentence of rigorous imprisonment of ten years without remission

and fine of Rs.5,000/- each. In case of default of payment of fine, each of the

appellants shall further undergo simple imprisonment for three months.

61. The four appellants have been rightly held guilty by the learned trial

Judge for an offence of conspiracy to commit the offence of murder and dacoity

which has been converted into robbery and culpable homicide not amounting to

murder by this court. Therefore, the appellants deserve to be sentenced

separately for offence of criminal conspiracy as envisaged under Section 120B

of the IPC. The statutory provision lays down that the sentence which can be

awarded to the convict is two years onwards and in cases where no express

provision is made, in that case it shall carry the same punishment as if the

offence has been abetted.

62. Having regard to the fact that all the accused persons have been already

found guilty for the death of Soharsh Narula and sentenced to rigorous

imprisonment of ten years, we are of the view that the interests of justice would

be met in case they are sentenced for the offence of criminal conspiracy also to

a sentence of rigorous imprisonment of ten years under Section 120B IPC and

the said sentence shall run concurrently with the other sentences.

63. The substantive sentences awarded to the appellant have already been

directed to run concurrently. This direction is maintained. The appellant shall

also be entitled to set off the detention already undergone by them during

investigation and trial of the case as well as the pendency of the present appeals

in accordance with Section 128 of the Criminal Procedure Code.

64. The impugned judgment dated 15th December, 2009 and order of

sentence dated 18th December, 2009 shall stand modified to the above extent.

These appeals are disposed of in these terms.

A copy of this judgment be supplied to each of the appellants forthwith.

(GITA MITTAL) JUDGE

(V.K. SHALI) JUDGE DECEMBER 20th, 2013/aa