MOHD SULTAN Vs. STATE OF DELHI

JUDGEMENT

(1.) All the three appeals arise out of the judgment dated 23-4-2004 passed by the Court of Additional Sessions Judge, Delhi whereby Sessions Case No. 76 of 2000 arising out of FIR No. 773/99 and Sessions case No. 77/2000 arising out of FIR No. 771/99 registered at Sultan Puri police station were disposed of and the three appellants herein were convicted for the commission of offences of robbery and murder as well as under Section 25 of the Arms Act. The appellants have challenged the said judgment of the trial Court as also the order dated 26-4- 2004 whereby all three of them were sentenced to undergo life imprisonment and also to pay a fine of Rs. 500/- each, in default three months rigorous imprisonment, for their conviction for the offence under Section 302 IPC and rigorous imprisonment for ten years and a fine of Rs. 500/- each, in default three months rigorous imprisonment, for their conviction under Section 392 read with 397 IPC and rigorous imprisonment for three years with a fine of Rs. 500/-, in default three months rigorous imprisonment under Section 25 of the Arms Act.

(2.) The case of the prosecution is that in the intervening night of 26/27- 07-1999 PW-2 Ct. Ranbir Singh along with one Ct. Ajmer Singh while on night duty on Prahlad Pur Road at about 2 a.m. saw a three wheeler scooter No. DL-1RC- 4209(Ex. P-1) coming from the side of cremation ground and going towards Prahlad Pur Road crossing and on seeing them the head lights of the three wheeler scooter were put off by the driver. When that three wheeler scooter reached near the two constables they gave a signal for stopping the scooter but instead of stopping the driver of the three wheeler scooter accelerated its speed while moving towards the constables. At that time Ct. Ranbir Singh struck the windscreen of the scooter with a lathi due to which its driver lost balance and three wheeler scooter turned turtle. As per the further prosecution case the three appellants were travelling in that scooter and after managing to come out from the scooter they started running but they were apprehended by the two constables with the help of a third constable Surender Singh(PW-8) who had also in the meantime reached there. From the possession of accused Arvind one katta of 3.5" bore(Ex. P-6) loaded with one 8mm cartridge was recovered and the other two accused Vijay Kumar and Md. Sultan were having one live 8 mm cartridge each. This information was conveyed to the local police station and thereupon SI Surender Kumar(PW-12) reached the spot. He prepared the sketches of the three live cartridges and the katta and sealed them. A seizure memo(Ex. PW-2/C) in that respect was also prepared by him. He also recorded the statement of constable Ranbir Singh(Ex. PW-2/E) and on the basis of that statement FIR No. 771/99 under Section 25 of the Arms Act was registered against the three accused " appellants at Sultan Puri police station. The three wheeler scooter was also taken into police possession vide seizure memo Ex. PW-2/D. During their interrogation by Sub-Inspector Surender Kumar the three accused disclosed that they had robbed the driver of the three wheeler scooter No. DL-1RC-4209 and after killing the driver they were coming on his three wheeler scooter. They offered to lead the policemen to the place where they had killed the driver of the three wheeler scooter and had left his dead body. Thereafter, the three accused took the policemen to a place near the cremation ground in Sector-23, Rohini on the road coming from Begum Pur and pointed out towards the dead body of a person lying behind electric sub-station of DESU. Sub-Inspector Surender Kumar noticed a leather belt and a shoe lace tied around the neck of the deceased whose name later on was found to be Kamal. Since it was a case of murder Sub-Inspector Surender Kumar prepared another rukka(Ex. PW-2/J) for registration of another FIR under Sections 392/302/411/34 IPC and accordingly FIR No. 773 of 1999 was registered. Investigation of that case was entrusted to PW-21 Inspector Sushil Tyagi who reached the place where the dead body of the deceased Kamal had been found and there he conducted inquest proceedings. From that place PW-21 lifted one blood stained shirt, which the prosecution is claiming to be that of accused Arvind since at the time of his arrest he was found to be not wearing any shirt but only a vest. PW-21 also took into possession the shoes of accused Arvind which he was wearing and out of the two shoes one was not having shoe-lace. The prosecution is claiming that the missing shoe-lace was used for strangulating the deceased. It was found out that the three wheeler scooter seized by Sub-Inspector Surender Kumar belonged to PW-1 Ravinder Sahani who had given it on hire to the deceased Kamal couple of days before this incident. The dead body of the deceased was identified by his brother PW-3 Shiv Shankar. Post-mortem examination was got conducted and as per the post-mortem report of PW-18 Dr. L.C. Gupta the cause of death was asphyxia resulting from strangulation with the help of ligature material recovered from the neck and time since death was opined to be 36 hours at the time of post-mortem examination. As per the further prosecution case the three accused persons were then formally arrested in the murder case also and at that time their personal search was conducted again. During that search one ring(Ex.P-3) was recovered from the possession of accused Arvind. That ring was later on identified by PW-3 Shiv Shanker @ Sonu, the brother of the deceased, during the test identification proceedings conducted by PW-16 Shri Dharmesh Sharma, Metropolitan Magistrate, to be belonging to the deceased. From the possession of accused Mohd. Sultan one purse Ex. P-2 was recovered and that purse was also during the test identification proceedings identified by the brother of the deceased and claimed the same also to be belonging to his brother Kamal. At the time of arrest of the accused persons in the case of FIR No. 773 of 1999 blood was noticed on the clothes of all the accused and so the same were seized by the investigating officer and later on sent to Forensic Scientific Laboratory(FSL) where on being examined it was found that the blood on the pant of accused Arvind was of "A" group which was the blood group of the deceased also. The blood found on the clothes of other two accused was found to be human blood although its group could not be ascertained. The katta(Ex. P-6) and three cartridges(Ex. P-7 to 9) recovered from the possession of the three accused were also sent to FSL and as per FSL report Ex. PX the katta was found to be in working order and the three cartridges were found to be live ones.

(3.) After the completion of the investigation two charge-sheets were filed against the three appellants- accused one of which was for the offences under Sections 392/397/302/34 IPC arising out of FIR No. 773/2000 and the other one was for the offence under Section 25 of the Arms Act arising out of FIR No. 771 of 1999. In due course both the charge-sheets came to be assigned to the Court of Additional Sessions Judge and the case in respect of FIR No. 773/1999 was registered as Sessions Case No. 76/2000 and the other case under the Arms Act was registered as Sessions case no. 77/2000. In the Sessions case No. 76/2000 charges under Sections 392/397/302/34 IPC were framed against all the three accused persons and in the Sessions case No. 77/2000 all the three accused were separately charged under Section 25 of Arms Act. All the three accused pleaded not guilty and claimed to be tried. Accordingly the prosecution was called upon to adduce its evidence in support of the allegations levelled against the accused persons. At the joint request of the public prosecutor and the defence counsel both the cases were clubbed for the purpose of recording of evidence and the Sessions case no. 76/2000 was treated as the main case and the entire evidence was recorded in that case only to be read for both the cases.