Delhi High Court
Md. Kareem @ Rahul vs State on 5 November, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: October 31, 2014
% Judgment Delivered on: November 05, 2014
+ CRL.A. 1504/2013
JAHANGIR @ IKKA @ IBRAHIM ..... Appellant
Represented by: Mr.M.L.Yadav, Adv.
versus
STATE ..... Respondent
Represented by: Mr.Lovkesh Sawhney, APP for
State.
+ CRL.A. 1615/2013
MD. KAREEM @ RAHUL ..... Appellant
Represented by: Ms.Inderjeet Sidhu Adv.
alongwith Shruti Tiwari, Adv.
versus
STATE ..... Respondent
Represented by: Mr.Lovkesh Sawhney, APP for
State.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J.
1. Jahangir @ Ikka @ Ibrahim and Md.Karim @ Rahul challenge the
impugned judgment dated July 25, 2012 convicting them for offences
punishable under Sections 395/397/34 IPC and the order on sentence dated
August 09, 2012 whereby Jahangir @ Ikka has been directed to undergo
imprisonment for life and a fine of `10,000/- for offence punishable under
Section 395 IPC and rigorous imprisonment for 10 years and a fine of
`10,000/- for offence punishable under Section 397 IPC and Md.Kareem @
Rahul to undergo rigorous imprisonment for a period of 10 years and a sum
of `10,000/- on both the counts i.e. Section 395 and 397 IPC. The judgment
also clarifies that the sentences in the present case shall run consecutively to
the sentences already imposed upon the convict in any other case and after
the completion of period of sentence the convicts are to be handed over to
the competent authority/ FRRO who would initiate appropriate proceedings
for their deportation in accordance with law.
2. Learned counsels for the appellants contend that the appellants have
been convicted merely on account of their previous criminal records. No
recovery has been affected from them. The ballistic report does not connect
the appellants to the offences committed. There are major contradictions in
the testimonies of the alleged eye-witnesses. Son Gaurav Pratap Singh PW-
14 and daughters Disha and Nisha PW-12 & PW-13 of Smt.Raj Kumari
PW-5 and Devender Pal Singh PW-7 have not identified the appellants even
in the Court. The witnesses are not consistent in their statements and have
made material improvements besides contradictions. Hence, the appellants
be acquitted.
3. No defence evidence has been led by Jahangir and Md.Kareem and
they have pleaded innocence and false implication in their statements
recorded under Section 313 Cr.P.C.
4. Process of law was set into motion on receipt of a PCR call at Police
Station Ashok Vihar recorded vide DD No. 7A on February 08, 2011
informing that dacoits after entering the house at E-39 Ashok Vihar, Phase-I
have left after stabbing. ASI Om Pal Singh PW-21 was handed over the DD
entry, who reached the spot alongwith Ct. Ashok Kumar and was informed
that the injured had been shifted to Bara Hindu Rao Hospital. On reaching
Bara Hindu Rao Hospital ASI Om Pal collected the MLCs of Raj Kumari
PW-5 and her son Gaurav Pratap Singh PW-14. Statement of Raj Kumari
was recorded who stated that she was residing at E-39, Phase-I, Ashok Vihar
on rent with her family and was a housewife. On that night at about 3/3.30
AM they were sleeping in their house when she, her husband and her son
who were sleeping in one room and her two daughters in the other room,
heard noise from the room of her daughters on which they went to their
daughter's room. They saw 6/7 boys had entered their house. On seeing
them they also shouted on which one boy pulled her ear-rings. When she
protested four boys entered into a scuffle with her son and her husband.
They had knives in their hands and were threatening them to keep quiet.
Her daughters kept on shouting and her son was scuffling with them. Her
son received an injury on his right wrist, head etc. She received injuries by
knife on her left hand and on the right ear due to forcefully pulling the ear-
ring. Later these boys ran away after showing them knives. When she
checked her articles she found her mangalsutra and the telephone Nokia
No.838428736 missing. She stated that she could recognise the boys on
seeing them.
5. Investigation at the house by ASI Om Pal Singh led to the recovery of
one live cartridge and some other articles. The ear-ring pulled from the ear
of Raj Kumari had been left at the spot by the miscreants, however they took
away her mobile phone and her mangalsutra. Blood stained bed sheet, quilt
cover lying in their bed-room were also seized and sealed.
6. On March 11, 2011 vide DD No. 32B Ex.PW-1/A an information
with regard to arrest of Jahangir @ Ikka, Md.Kareem and Jagdish was
received at PS Ashok Vihar after they were arrested in FIR No. 76/2011
under Section 399/402 IPC, Section 25 Arms Act and Section 14 Foreigners
Act at PS Anand Vihar . The three disclosed the commission of offence in
the present case hence they were formally arrested in this case. Before
proceeding further, application for conducting of TIP (Test Identification
Parade) was filed, however Jahangir @ Ikka @ Ibrahim and Md.Kareem @
Rahul refused to take part in the identification. Jagdish took part in the
identification parade and the victim failed to identify him. Thus on that
ground Jagdish has already been acquitted. Jahangir and Md.Kareem
refused to take part in TIP proceedings on the pretext that their photographs
were taken in the Police station and the same may have been shown to the
witnesses as well. However in cross-examination the witnesses have not
been suggested that before the TIP proceedings the photographs of the
appellants were shown to them.
7. In Court the complainant Raj Kumari deposed in sync with her
statement on the basis of which FIR was registered. She also identified
Jahangir, Md.Kareem and Jagdish present in the Court and specified that
they were having knives and were threatening them on the point of knife.
8. Devender Pal Singh PW-7 the husband of the complainant deposed
that on February 08, 2011 at about 3/3.30 AM he along with his wife were in
other room whereas their son and daughters were sleeping in another room.
He suddenly woke up and heard the cries of his daughters and felt that
somebody had put barrel of the country made pistol in his mouth. He
noticed that 6/7 persons were there in the room and someone had put the
country made pistol in his mouth and threatened him not to raise any alarm.
He could hear his children shouting and saw one person grappling with his
son and hit him with the knife in his hand. He identified Jahangir as the
person who was having the country made pistol in his hand which he put
inside his mouth and Kareem was the person who was having knife in his
hand and had inflicted injuries to his son.
9. It may be noted that besides Raj Kumari and Devender Pal Singh who
identified the appellants in the dock the children i.e. Gaurav Pratap Singh,
Disha and Nisha did not identify them and apparently for the reason that
they were scared of the appellants, however they supported the prosecution
case in its entirety except to this extent.
10. The main plank of arguments of learned counsels for the appellants is
that the only evidence against them is the identification by the witnesses in
the dock, however there are material contradictions therein and also in
version of witnesses qua the incident. In order to appreciate the same it
would be appropriate to note down the testimonies of the witnesses on the
said account.
Before Police In-Chief In -Cross
On number of persons
PW-5/ 6-7 in the house & 4 in 6-7 boys in our house. 4-5 boys entered the
Complainant/ their room. "States nothing about room of daughters.
Raj Kumari four in their room" Further stated at the
same time these boys
entered in our room.
PW-7/ 6-7 boys in their room. 4-5 persons in their
Devender Pal room.
Singh
PW-12/ Disha Noticed 2 persons in her
room- dragged by them
to the adjoining room
where her parents and
brother were sleeping
where noticed more
persons.
*Do not state the
number of persons.
PW-13/ Nisha 6-7 persons in the
parents room
"do not notice anyone in
her room".
PW-14/ Gaurav 2-3 persons surrounded
Pratap Singh me and my parents.
Further states they were
6-7 boys who had
entered the house
PW-16 saw 4 persons running
Neighbour on from the house and
the first floor called police at 100
Use of Weapon
PW-5/ they scuffled with four all boys were having All persons having
Complainant/ persons present in their knives. knives also states that
Raj Kumari room- all were having one of the boy was
knives. Further states armed with desi katta
that all persons who had wherein she was
knives in their hand run confronted by her
away because of the earlier statement and
screaming and shouting. thereafter the witness
states that three
accused (present in the
court) were having
knives only
PW-7/ Suddenly woke up and I
Devender Pal heard the cries of my
Singh daughters and felt that
somebody had put a
barrel of the country
made pistol in my
mouth.
Specifically points out-
accused Jahangir
(present in the Court)
with pistol; accused
Kareem having knife
and accused Jagdish
(Acquitted) with iron
rod.
PW-12/ Disha Two persons carrying
pistol and knives who
had entered her room.
*did not identify any of
the accused either in
TIP or before Court.
PW-13/ Nisha No statement on use of
weapon. Only states that
the persons were
threatening to my
family.
*did not identify any of
the accused either in
TIP or before Court.
PW-14/ Gaurav Nothing in chief on the
Pratap Singh use of weapon but states
that one of the persons
who surrounded him
gave him a knife blow.
"did not identify any of
the accused either in
TIP or before Court."
PW-16 ----
Neighbour on
the first floor
11. Thus the consistent statements of all the witnesses are that there were
six to seven accused and four of them were scuffling. It is a matter of
common knowledge that when a group of persons are attacked by a number
of assailants in that state of shock and panic, it is not necessary that each
individual should observe each and every fact. Thus the contradictions
pointed out by learned counsels for the appellants are not material.
12. This was not a case of fleeting glimpse but where there was sufficient
time for the witnesses to have seen their assailants. Raj Kumari is an injured
witness and version of Devender Pal Singh that a barrel of the country made
pistol was put in his mouth so that he could not shout and to threaten him is
supported by the fact that a live cartridge was recovered from the spot after
the incident.
13. Learned counsels for the appellants have further assailed the
prosecution case on the ground that no recoveries either of the mobile phone
or the mangalsutra of Raj Kumari have been made from the appellants and
in the absence thereof they cannot be connected with the offence committed.
Recoveries of stolen articles is not a sine-qua-non for conviction for
offences punishable under Section 395/397 IPC.
14. In view of the testimony of Raj Kumari and Devender Pal Singh duly
corroborated by Gaurav Pratap Singh, Disha and Nisha, we find no reason to
set aside the impugned judgment. Consequently, the judgment of conviction
and order on sentence are upheld.
15. Appeals are dismissed.
16. T.C.R. be returned.
17. Three copies of the judgment be sent to the Superintendent Central
Jail Tihar one for his record and the other two to be handed over to the
appellants.
(MUKTA GUPTA)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
NOVEMBER 05, 2014
'ga'
