MUKUL MUDGAL, J. -
(1.) These four appeals are filed by the accused against the order of conviction recorded against them. Crl. A. 342/1998 is filed by Din Mohd @ Ram Kumar @ Ashok Kumar, Crl. A. 246/1998 is filed by Akbar Ali @ Javed, Crl. A. 327/1998 is filed by Mohd. Shokin @ Babbay and Crl. A. 345/1998 is filed by Dilshad @ Billi. The incident which led to the present appeals took place on the night between 4th and 5th March, 1993 leading to robbery and death of Bankey Bihari Vij in the incident at about 3.15 a.m. The Rukka recorded by the police at about 3.35 a.m. on the statement of Smt. Rekha Vij (PW-2) widow of Shri Bankey Bihari Vij, the deceased stated that there was an intrusion in the house by three persons, one of which held a pistol and he was of the most darkish complexion amongst the accused. In the course of the robbery, a bullet was fired by such person who was holding the pistol leading to the death of her husband. The FIR was recorded at 5.50 a.m. where Smt. Rekha Vij PW-2, widow of the deceased Bankey Bihari Vig deposed as under:-
"I reside at the aforesaid address. Today, I was sleeping along with my husband namely Bankey Bihari Vig and my son namely Karan, aged 8 years, in a room of my house. The door of our room was open. Time at about 3.15 hours in the night three persons, of whom one was of fair complexion and other two were of sallow complexion, trespassed the house. They all were wearing pants and shirts. They woke up all of us by way of shaking. At that time the light of the room was on. One of them was holding a pistol in his hand and he was of the most darkish complexion amongst them. He might be 24 years old. The age of remaining others was around 20 or 21 years. All of them were of medium build. The said person (having darkest complexion) pointed his pistol towards us and demanded the key. Whereupon my husband uttered that he would just then give the same. Over this, the man holding the pistol told my husband to observe silence and not to make any sound. In the meanwhile, a forth (sic-fourth) person came over there, inside our room, carrying my father-in-law namely Shri Piarey Lal Vig with him from the other room and made him to sit in the said room where I was sleeping with my husband. On this, my father-in-law, uttered to the effect that whether they have killed anyone. Actual words being, "Mar Suttya Kya" Just after listening that, the man who was holding the pistol in his hand pointed the same towards my father-in-law. Just seeing all this, my husband pounced upon that person who was holding pistol in his hand. They both started scrambling with each other and during the course of grappling they moved down into the gallery. My husband fell down into the gallery. Then I laid myself over my husband. Whereupon those persons thrashed me on my hand and shoulder with the cricket wicket of my son, which was lying over there in our house and forcibly separated me from over my husband. Then the person who was holding the pistol fired a bullet in the chest of my husband. Thereafter they carried out the search of the entire house. they broke the lock of the almirah kept in my room and took out therefrom a sum of rupees 50,000/- (fifty thousand), all in the denomination of Rs.100/- (hundred) rupee notes. They also took off two gold bangles from the persons of my mother-in-law, besides my gold bangle and gold necklace (chain). In addition to the above, they also took out other ornaments worth rupees 50,000/- (fifty thousand) kept in the house and put all the said articles including money into a soily (dust) coloured old bag. Out of them, one who was looking alike Nepali told them that he had again brought a new vehicle even that day. Subsequently, they locked all of us in a room. They remained in the house till around 3.45 hours and afterwards they all fled away from there while passing through the staircase and the roof. Thereafter, I alongwith my neighbour took my husband to U.K. Nursing Home at Vikas Puri, where the Doctor declared him as dead. I can identify all those persons. I will prepare the list of the ornaments stolen from the house only after checking the same."
(2.) Based on the FIR the prosecution set up the case as follows:-
"2. On 5.3.93 and prior to that Smt. Rekha Vij was residing at H. No. J-118, Vikas Puri along with her husband Bankey Bihari Vij (since deceased), her son Karan, her daughter Baby Neha, father in law Pyare Lal and mother in law. Mother of Rekha Vij's mother in law was also residing at the said house at that time. Bankey Bihari (since deceased) used to run the business of sale/purcahse of Maruti cars. One Shanti Swaroop was also residing at that time in the rear portion of the house bearing No. J-118, Vikas Puri as a tenant. Case of the prosecution is that on the intervening night of 4.3.93 and 5.3.93 at about 315 A.M. (night) Bankey Bihari (now deceased) was sleeping along with his wife Rekha and son aged about 7/8 years in one of the rooms of the house in question. Pyare Lal, father-in-law of Rekha was sleeping at that time in another room. In the drawing room of the said house, mother-in-law and dauther of Rekha were sleeping. At that time accused A-1 to A-4 entered the said house by cutting the wooden door of the room. A-1 to A-4 entered into the room in which Bankey Bihari was sleeping. Accused A-1 was having a pistol. Accused A-2 was having a iron rod. A-1 and A-2 stood near Bankey Bihari and Smt. Rekha respectively. A-3 stood at the entrance of the door of the said room. A-4 took the cricket wicket of Karan and went to the room in which Pyare Lal was sleeping. A-1 to A-3 awoke Rekha, her husband and her son. A-1 shouted that nobody would raise alarm, "NAHI TO MAAR DIYE JAOGE". Then A-1 asked Bankey Bihari to hand over the valuable goods and money available in the house. Meanwhile, A-4 brought Pyare Lal in the said room. On reaching at the entrance, Praye Lal enquired from Bankey Bihari as to what had happened. On this A-1 became furious and pointed his pistol at Pyare Lal to kill. Bankey Bihari caught hold A-1 from behind. A- 1 pushed Bankey Bihari on the floor in the gallery. Rekha Vij jumped over Bankey Bihari and laid on him to protect him. A-4 lifted Rekha after giving blows with cricket wicket on her right hand. A-1 to A-4 forcibly lifted her and pushed her away from Bankey Bihari. Thereafter, A-1 fired shot on Bankey Bihari from his pistol. It hit on the chest of Bankey Bihari and he started bleeding. A-1 to A-4 also brought the other inmates of the house in the said room. Thereafter, A-2 removed forcibly all the jewellery from the person of Rekha Vij which she was wearing at that time. They also removed gold jewellery from the person of mother-in-law of Rekha. The accused persons further broke open the locker of the almirah and looted the ornaments and cash. They also searched other rooms and looted the ornaments and cash amounting to Rs.50,000/- approx. On hearing the commotion, Bankey Bihari's neighbourers enquired about the happenning going inside the room. A-1 replied "KOI GAL NAHI GHAR DI GAL HAI". The accused persons had cut the telephone wires. Shanti Swaroop when tried to inform the police on telephone found the same dead. The accused persons after looting the cash and ornaments put the same in an old bag and left the house trying to close the room. They also took away the key while leaving the room.
3. Further the case of the prosecution is that thereafter Rekha Vij touched the body of her husband Bankey Bihari and found his body warm. She raised alarm for help. Some neighbourers reached at her house. Bankey Bihari was removed to U.K. Nursing Home. She was declared brought dead. Someone informed the police. L/Ct. Renu posted in PCR got an information on telephone at 4.35 A.M. about the occurrence. She passed over his information at P.S. Vikas Puri, DD No. 28A was recorded to this effect at P.S. Vikas Puri. On receipt of DD No. 28A, insp. Mohan Chand along with SI Pankaj Singh, ASI Goverdhan and Ct. Raj Pal reached at the spot. Insp. Mohan Chand recorded the statement of the complainant Rekha Vij. He made his endorsement over the same and sent the rukka for the registration of the case u/s 302/394/397 IPC. Duty officer Harbharaj Singh recorded the FIR. Ct. Hans Raj was deputed to deliver the special report to the concerned area M.m. Insp. Shoban Singh, the then sho of the P.S. Vikas Puri also reached at the spot at about 5.15 A.M. along with his police staff. he inspected the scene of crime and got the same photographed. He lifted blood stained bullet and blood sample from the spot. He seized one wicket and one button of the shirt from the spot. He also lifted butts of cigareette from the roof of the house. All these articles were seized vide necessary seizure memos. I.O. also recorded the statements of Neha, Karan, Pyare Lal and Shanti Swaroop u/s 161 Cr. P.C. I.O. also conducted the inquest proceedings on the deadbody of Bankey Bihari at U.K. Nursing Home and prepared the necessary inquest report. Postmortem on the deadbody of Bankey Bihari was also conducted by Dr. L.T. Ramani on 5.3.93. Injuries on the person of Bankey Bihari were opined to be antimortem caused by fire arm projectiles fired from contact range. Fire injuries were opined to be sufficient in the ordinary course of nature to cause death. Death was opined to be due to shock and haumorrhage consequent injuries.
4. During investigation, I.O. prepared the site plan. He also recorded the statements of the concerned witnesses. I.O. deposited the case property in the malkhana of PS Vikas Puri.
5. Further case of the prosecution is that on 18.3.93 accused A-1 to A-3 were arrested by the police of P.S. Vikas Puri in case FIR No. 117/93 u/s 307 IPC. During investigation of the said case, A-1 to A-3 made disclosure statements about the commission of the offence in this case. Their disclosure statements were recorded and handed over to Insp. Shoban Singh. the accused A-1 to A-3 were kept in muffled faces. They pointed out the place of occurrence. They were produced before the court for TIP. However, later on accused A-1 to A-3 refused to participate in the TIP proceedings. the Ld. M.M. Ms. R. Kiran Nath conducted the TIP proceedings and recorded the statements of A-1 to A-3 regarding the refusal to participate. The I.O. interrogated A-1 to A-3 and recorded their disclosure statement. A-1 to A-3 led the police party to the place of incident and I.O. prepared the pointing out memos. On 25.3.93, disclosure statement of A-2 was recorded where A-2 disclosed to get recover the bangles looted in the occurrence. On 26.3.93, accused A-1 to A-3 led the police party at H. No. 1039, street No. 13, Mustafabad. A-2 got recovered three banles from underneath of the floor of the room of the house. The bangles were seized vide necessary seizure memo. The accused A-1 to A-3 further got recovered various articles involved in other cases which were seized by the police u/s 102 Cr. P.C. On 8.4.93, the bangles were got judicially identified from complainant Rekha Vij by the police.
6. Efforts were made to arrest A-4 but he could not be arrested. In January, 1994, A-4 was arrested by the police of crime branch. A-4 was arrested thereafter in this case and was produced in muffled face before the learned M.M. Ms. Renu Bhatnagar for TIP. A-4 also refused to participate in the TIP proceedings. Ms. Renu Bhatnagar, Ld. M.M. recorded the TIP proceedings. Efforts were made to effect recovery during police remand of A-4 but no recovery could be effected. A-4 was sent to JC and the IO filed the supplementary challan against him after recording the statements of the concerned witnesses.
7. During investigation, the IO sent the seized articles to CFSL and collected the CFSL reports. The IO got prepared the sealed site plan. After completing the investigation, the IO filed the challan and supplementary challan against the accused A-1 to A-4 in the court of Ld. M.M.
8. After complying with the provisions of the Section 207 Cr. P.C., the Ld. M.M. committed the case to the court of Sessions."
(3.) In support of its case, the prosecution recorded the testimony of 25 witnesses. It was contended that the witnesses examined by the prosecution are independent public witnesses having no enmity against the accused persons. The accused persons refused to get themselves identified from the complainant in TIP proceedings. It was also contended that adverse inference is required to be drawn against the accused persons for refusing to participate in the TIP proceedings. The accused persons were duly identified by the prosecution witnesses in the court. It was further contended that the recovery of bangles at the instance of the accused persons further connects the accused with the commission of the offence.;