R.S.Sodhi, J. -
(1.) Criminal Appeal Nos. 101 and 102 of 2006 seek to challenge judgment and order of Additional Sessions Judge, New Delhi, in Sessions Case No. 54 of 2004 arising out of F.I.R. No. 1386 of 1998, registered at Police Station Malviya Nagar, whereby the learned judge vide his judgment and order dated 28.01.2006 held the appellants, namely, Lakhan Singh and Hargovind, guilty for an offence under Section 396 IPC. Further by his order dated 31.01.2006, has sentenced both the appellants to Rigorous Imprisonment for life together with fine of Rs. 5,000/- each and in default of payment of fine, further Rigorous Imprisonment for six months under Section 396 IPC.
(2.) Brief facts of the case as have been noted by the learned judge in judgment under challenge are as under:-
".....that deceased Narender Prashad Jain, aged 69 years and Ms. Inderani Jain, aged 65 years used to reside alone at M-78, Saket,New Delhi. PW-1, Devender Kumar used to assist them in the house hold work by visiting their house daily in the morning and by staying over there till 4.00/5.00 p.m. On 26.12.98 at about 10.30 a.m. when PW-1 reached H. No. M-78, Saket, New Delhi, he found the lock of the house broken, one plastic bag lying on the table and chairs lying scattered. PW-1 informed PCR and PW-4, Smt. Sarita Jain, daughter of the deceased Narender Prashad Jain about these facts. This telephonic information was received by PW-25, Lady Ct. Meena, who conveyed the same on wireless to PP Saket which was recorded vide DD No. 7, Ex. PW-3/C-1. On receipt of DD No. 7, SI Virender Jain along with other police officers went to H. No. M-78, Saket, New Delhi where he found the sliding door of the house was open, almirahs in broken condition, articles lying scattered in the bed room and dead body of Narender Prashad Jain and Inderani Jain lying on the bed and the bed sheet etc., having blood stains. Statement of PW-1 was recorded by Insp. Azad Singh, on the basis of which rukka was sent and FIR No. 1386/98 u/S 460 IPC was registered at PS Malviya Nagar. In the meantime, Smt. Sarita Jain (PW-4) and Smt. Sunita Jain (PW-14)daughters of the deceased also reached who found all the cash, three pairs of silver anklets, two ladies watch of which one was Titan make and another Foreign make, one gold mangalsutra, one gold chain of PP Jewellers make, four gold bangles, one camera Pantex make, one search torch, one Casio digital diary, nose pin, ear tops, one gold ring with red stone (gents) missing. The crime team was summoned. Photographs of the scene were taken. A police dog named Jeny led the police party to the graveyard near ganda nala towards North where two freshly broken branches of tree were found lying. The dog took a round of the graveyard and did not go beyond that. A broken bolt of the sliding door, one blood stained pillow of light green colour, one blood stained pillow cover of white colour, one blood stained double bed sheet, one blood stained double bed sheet of Mehandi colour, one blood stained ladies sweater blue colour, two blood stained quilt covers, blood stained earth control, some broken pieces of wooden lying on the bed were taken into possession after preparing separate sealed pullandas sealed with the seal of AS. The dead bodies were sent to mortuary, AIIMS for postmortem. Dr. R.P. Sharma (PW-30) conducted the postmortem on the dead bodies and submitted his report. As per the postmortem report Ex. PW-3/A on the dead body of Narender Prashad Jain the cause of death was head injury. The doctor found that in the head wound some chop sticks of wood were found. As per the postmortem report Ex, PW-3/B of Inderani Jain the cause of death was head injury. The dead bodies were identified by PW-4. The sealed parcels with seals intact were deposited in the malkhana. The investigation was transferred to SI R.S. Gill (now deceased). The sealed parcels were sent to FSL, Malviya Nagar. The doctor handed over some sealed parcels to the IO which were also sent for examination of FSL, Malviya Nagar. The freshly cut two tree branches found at the graveyard were also taken into possession and were sealed in a pullanda and were sent to FSL, Malviya Nagar. On 26.12.98, PW-12, Pratap Narain Singh was Chowkidar of M-Block, Saket but he did not perform his duty due to illness and instead his sone Nilesh (PW - 15) performed the duty of Chowkidar who during his duty saw that seven persons carrying dandas were going towards kabristan near M-Block, Saket. PW- 15 informed about this fact to PW-36 Rama Rai Guard of the House No. M-4, Saket. Statements of all these persons were recorded u/S. 161 Cr.P.C. In January, 99, PW-29, Inspector Mahipal Singh went to District Guna, MP under the orders of DCP (South District), who received a secret information in village Khejra, P.S. Dharnawada, District Guna, MP that some persons who had quarreled with Natto, were celebrating the theft of a goat of Natto. He further came to know that the names of these boys were Suraj, Vijay, Hargovind, Jeeva, Sikander, Lakhan and Ghanshyam. PW-29 informed S.I. Sidhnath Singh, area SHO, about this secret information. SI Sidhnath verified this information and came to know that these persons armed with deadly weapons would proceed towards jungle for committing some crime. On 23.1.99 at about 4.30 a.m., PW-8, S.I. Sidhnath Singh, then SHO, P.S. Dharnawada, District Guna, MP organised a raiding party consisting of the police officers of MP and three public persons, namely, Sunil, Jai Prakash and Bijender for apprehending the persons from the jungle of village Khejra as per the secret information received. Accused Hargovind, Lakhan and Mobatia were apprehended and remaining persons managed to escape. These three persons were later on arrested u/S. 307 IPC and 25 of Arms Act in case FIR No. 11/99 of P.S. Dharnawada, District Guna, MP. Accused Hargovind and Lakhan are alleged to have made a disclosure statement that they had broken the channel gate of Saket along with 7 other persons and had committed a robbery and kept the stolen articles in their houses. Lakhan is alleged to have disclosed that he had kept the robbed wrist watch in his house and could get the same recovered. Accused Hargovind is alleged to have disclosed that he had kept the robbed gold chain having mark of PP Jewellers in a polythene in his house and could get the same recovered. Accused Lakhan is alleged to have got recovered one Titan Watch from his house kept in a box which was taken into possession vide memo Ex. PW 8/C. Accused Hargovind is alleged to have got recovered one gold chain from his house which was taken into possession vide memo Ex. PW 8/D. Both these accused were arrested by PW 8, SI Sidhnath of MP Police and were produced before the court of Judicial Magistrate, Guna along with documents and allegedly recovered case property. SI Ravinder Singh Gill of Delhi Police who was in M.P. moved an application before the court of Shri R.C. Varshney, JMFC, Radho Garh, Guna (MP) for interrogation of the accused. Both these accused were formally arrested with the permission of the Court by SI Ravinder Gill. SI Ravinder Gill who also handed over the relevant documents and the gold chain and the Titan wrist watch, sealed with the seal of the court of JMFC, by the court of Shri R.C. Varshney, JMFC, Radho Garh, Guna (MP). SI R.S. Gill moved an application in the court of concerned Metropolitan Magistrate, New Delhi with a prayer for issue of production warrants of both these accused from Guna Jail. These accused were accordingly produced by Suptd. Guna Jail for trial in this case. It is alleged that both the accused pointed out to the place of the occurrence and kabristan. SI Ravinder Gill prepared the pointing out memo of accused Lakhan of the place of occurrence vide Ex. PW35/F and the pointing out memo of the place of occurrence by accused Hargovind was prepared vide memo Ex. PW35/E. Both the accused also pointed out the place from where they had cut down the dandas. The pointing out memo in this regard of accused Lakhan and Hargovind are respectively Ex. PW35/G and Ex. PW 35/H. The alleged recovered gold chain and Titan wrist watch were identified by PW-14, Smt. Sunita Jain, before Sh. G.S. Gupta, the then Metropolitan Magistrate, New Delhi. The IO completed the investigation and submitted the charge sheet for trial of these accused persons u/S 397/398/396/412/302/34 IPC. These accused had disclosed that five other persons, namely, Suraj, Jeeva, Sikander, Ghanshyam and Vijay were also with them at the time of committing of the offence. These five persons could npt be arrested and were placed in Column No. 2 of the charge sheet. Later on, co-accused Vijay and Suraj were arrested. The Ld. Predecessor of this court considering that there was no legal evidence to connect these persons with the crime, discharged these accused. Charge u/S 396 IPC was framed by the learned predecessor against accused Lakhan and Hargovind to which they pleaded not guilty and the case was put to trial."
(3.) Prosecution in order to establish its case examined as many as 38 witnesses. Of these, the material one's are PW-15, Neelesh Kumar Singh, who was son of the Chowkidar and was performing the Chowkidari duty on 26.12.1998. He states that on 26.12.1998, he was doing his father's duty of Chowkidar in Gali No. 50, M-Block, Saket and at about 1:05 a.m., he went to answer the call of nature and saw 5-7 persons going by the side of nalla at low level who on seeing him stood up and asked him to run away and not to disclose their presence. The witness informed his father who along with him came to the place where he had last seen 5-7 persons but there was nobody there. The witness goes on to state that he cannot identify any of the accused persons due to darkness. PW-32 is SI Gyanender Singh, the Finger Prints Expert, who deposes that on 24.3.1999, he examined the chance prints and found that they were not identical to the finger/palm prints of the persons mentioned in the report. The chance prints were either hazy partial or smudged and did not disclose sufficient number of ridges to make a positive comparison.;