MUSTAFA @ KALA BABA Vs. STATE

JUDGEMENT

(1.) PRESENT appeal has been filed under Section 374 Cr.P.C. against the judgment dated 14.2.2004 and order on sentence dated 18.12.2004 passed by the trial court by which the appellant has been convicted under Sections 395/397 IPC and sentenced to undergo RI for seven years with fine of Rs.10,000/ - and in default of payment of fine to further undergo SI for six months.

(2.) THE version of the prosecution, as noticed by the trial court, is as under: "Prosecution case is that on 21.2.1992 on receipt of an information vide DD no.14 A from lady Ct. Kanta Lochan of PCR that a dacoity had been committed at house No.17 Babar Road and also on an information received from Smt.Sen by telephone No.3715876 that one person had been injured with a knife and dacoity had been committed at House No.17, Babar Road, SI Puran along -with his staff went to H.NO.17, Babar Road, where complainant Ashish Anand met him and got recorded his statement wherein he stated that he along -with his family members was residing at 17, Babar Road, Bengali Market, New Delhi; that on that day at about 4 p.m. he was in his bathroom and he heard the voice of his mother who was crying 'What are you doing' upon which he tied a towel and came out of the bathroom; that he saw that seven persons who were wearing dark colour clothes had come inside their house one of them aged about 27/28 years wearing a gray coloured pant and spots shoes and having short hair was having a pistol/revolver in his hand, one of them was aged about 20/22 years old having a short height wearing a blue coloured jeans and blue coloured shirt and was having a knife in his possession. One of them was wearing check pants and shirts and sport shoes and having thin body was having a country -made revolver in his hand and he also showed cartridges after opening the country -made revolver. The remaining persons were also wearing clothes of different dark and dirty colours and spot shoes. When he asked them about the matter, they held him and brought him and his mother in a room, tied their hands from behind and gagged their mouths with clothes. They demanded keys and he told them that the keys were in possession of his paternal aunt upon which the fattyman told that he was telling a lie and asked him as to where the cash had been kept. He told them that there was no cash in the house upon which the fatty man told him either to tell about the cash or he would shoot him and his mother told them not to kill them and to take whatever they wanted to take. In the meantime, his paternal aunt and her daughter Reeta Anand also came inside the house from Babar Road side and they were also made to sit in a room, and after giving a threat to kill. His paternal aunt was forced to part with four gold bangels, one diamond ring and Neeta was forced to remove two earnings, two pairs of tops made of gold and one nose pin from her person. His paternal aunt and Neeta Anand were also beaten and their hands and mouths were tied with clothes and tie etc. The whole house was searched by these men and they took possession of the articles on which they could lay their hands. In doing so they took about half an hour and in the meantime, his elder brother Jitender Anand came on his scooter from the rear door and parked his scooter and on seeing him,his mother told that Babbi had come. Jitender was also known as Babbi. In the meantime, one of these boys came running and gave knife blow to Jitender and Jitender cried in a loud voice Bacha Le Bacha Le. He (the complainant) also came out having his hand and mouth tied and saw that Babbi had held himself from his left side. All these boys ran away from the rear door of the house and when he also went behind them, they also fired a shot while running away towards the railway line. Their neighbour's son Vickey came there and removed Jitender to the hospital. It was alleged that the complainant and his family members could identify all those seven men. On these allegations, the present case under sections 395/397/307 IPC was registered. Afterwards, the investigation was carried out by Ins.Ramesh Malik, Special Staff, New Delhi, vide orders dated 27.2.1992 of the DCP Crime and thereafter by SI Gnga Bishan. During investigation one empty cartridge, one plastic bag, one bullet lead and one diary were taken into police possession. MLC NO.14549 of injured Jitender was collected. The blood stained clothes sealed in a pulanda with the seat of CMO/RMO were taken into police possession. Site plan was prepared. On 29.2.1992 accused Mohd. Anis was arrested by the crime branch in case FIR No.177 dated 29.2.92 U/S 25 AND 27 Arms Act, PS Kotwali and he made a disclosure statement regarding the commission of the offence relating to this case with his associates accused Mohd. Farooq, Mintu alias Chota Mental, Mohd. Abdul Aziz and three other associates whose addresses he did not know. All these four accused persons were produced in the court for their TIP but they refused to join the same and they were later on identified by the eye witnesses. All the four accused persons pointed out the place of occurrence. Case property relating to this case was recovered from accused Mohd. Farooq and Abdul Aziz which was identified in the TIP by Smt. Poonam Anand. The lead, empty cartridge blood stained clothes and the revolver recovered from the possession of the accused Farooq and Anis were sent to CFSL. CFSL report was obtained. Chance prints lifted from the spot by the crime team and the finger prints and the palm prints of the accused persons were sent for comparison. Finger Print report was obtained and vide report No.14743, FPE dated 19.5.92, it was found that the chance prints lifted from the spot tallied with the palm prints of accused Anis. Accused Kalia Babu, Mental Babu and Gobinda could not be arrested. After completing the investigation, charge sheet under Sections 395/397/307/412 IPC was filed against three accused persons by stating therein that the charge sheet against accused Minto alias Chota Mental aged about 14 years would be filed in the Juvenile Court. Present accused Mustafa @ Kalia Babu was arrested in FIR No.683/02, wherein he made disclosure statement before the present offence. He was formally arrested and produced before the link MM for TIP, which he refused. The disclosure statement was recorded but no recovery could be effected. On the statement of witnesses already recorded, he was charge -sheeted for offence punishable under Section 395, 397, 307, 412 IPC. 2. After complying with the provisions of Sec. 207 Cr.P.C., ld. Metropolitan Magistrate committed the case to the court of Sessions for trial and was assigned to this court for trial.

(3.) LEARNED counsel for the State submits that the prosecution has been able to establish its case beyond any shadow of doubt. The evidence of the witnesses are trustworthy and reliable, no material contradictions have been pointed out and minor contradictions cannot be a ground to set aside the order of conviction as the contradictions pointed out do not go to the root of the matter. Counsel also contends that the evidence of PW -1, PW - 8, PW -9 and PW -10 are consistent with regard to the date and time of the incident, the manner in which the dacoity was committed and the fact that deadly weapons were used by the accused persons. Counsel also submits that the present appellant was arrested on 24.3.2003 whereas the incident pertains to the year 1992 and, thus, it is not unusual that the revolver could not be recovered.