Delhi District Court
State vs . Ajay Thakur & Other on 23 July, 2011
State Vs. Ajay Thakur & Other
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 20/2011
State Vs. : 1. Ajay Thakur
S/o Sh Khiro Thakur
R/o Village, P.S Birni,
Distt. Girdih (Jharkhand)
2. Jogeshwar Thakur
S/o Sh Balki Thakur
R/o Village, P.S Birni,
Distt. Girdih (Jharkhand)
3. Buttan Rai @ Dev
S/o Sh Mangal Rai,
R/o Village Rupidih, P.S Birni,
Distt Girdih (Jharkhand)
(P.O Accused)
4. Shankar Thakur
S/o Sh Balki Thakur,
R/o Village Rupidih, P.S Birni,
Distt Girdih (Jharkhand)
(P.O Accused)
SC No. 20/2011 1/27
State Vs. Ajay Thakur & Other
FIR No. 351/2005
P.S. Mehrauli
U/s 397/411 IPC
Date of Institution : 22/09/2005
Date when arguments
were heard : 14/07/2011
Date of Judgment : 23/07/2011
JUDGMENT
BRIEF FACTS:
Adumbrated in brief the facts of the prosecution case are as follows:
PW14 Inspector Suresh Chand (then SI) received copy of DD No. 31, Ex PW13/A, dated 10/06/2005 and reached house No. 109, Anupam Garden, Country Club Road, Sainik Farm, New Delhi alongwith HC Hari Kishan, PW9 Ct Shibbu, found doors of almirah open in the bedroom at the ground floor and the goods scattered in the room while complainant PW1 Sh Inder Mal Bhandari and PW4 Smt Vijaya Bhandari were in injured condition. PW14 sent PW1 and PW4 with HC Hari Kishan to nearest GM Hospital for medical SC No. 20/2011 2/27 State Vs. Ajay Thakur & Other examination. PW14 obtained MLC of PW1 and PW4. PW1 gave his statement Ex PW1/A to PW9 alleging while in the night of 10/06/2005 at 11 pm he was in preparation to sleep in his bedroom where his daughter in law was there, then maid Pooja, residing in servant quarter at the back side who used to sleep in the bedroom had not come. PW1 stated that he had gone to call the maid and while from bedroom he was going towards servant quarters through kitchen then in the kitchen two boys of age 20/22 years, height around 5.6"5.7", colour wheatish, one boy was wearing black shirt and pant and other boy was wearing red colour check shirt and pant, apprehended him. One boy pressed his hand on the mouth of PW1 Inder Mal Bhandari and the other boy threatened PW1 that in case he raises noise then he would be killed. Both boys were having in their hands knife. PW1 Inder Mal Bhandari tried to escape from the clutches of those boys upon which one boy gave knife blow on PW1, PW1 Inder Mal Bhandari held the knife with his hand to save himself and in the process received injuries in the fingers of left hand. Upon asking of PW1 what those boys wanted, those two boys said whatever rupees he had, he should give it quietly and PW1 Inder Mal Bhandari SC No. 20/2011 3/27 State Vs. Ajay Thakur & Other was brought to his bedroom and asked for the keys of the almirah.
When daughter in law of PW1 tried to intervene, those two boys also over powered her at Chowk outside the bed room. PW1 Inder Mal Bhandari gave the key of the almirah after taking it out from the wooden almirah and those two boys opened the iron almirah with the key, took out about Rs 10,000/ from it and then tried to move PW1 towards the bed room at the first floor when PW1 saw that his servant 'Dev' , who was working at that place for last 5/6 days, who was got kept there by the previous servant Bhagirath @ Chotu who had gone on leave; was getting removed the jewellery, two diamond rings and the golden chain with diamond pendant of daughter in law of PW1 Inder Mal Bhandari. PW1 Inder Mal Bhandari could not climb the stairs. Then those two boys and Dev brought PW1 and his daughter in law PW4 Smt Vijaya Bhandari to the bed room at ground floor. After sometime those boys again were in the process of taking PW1 to the upper floor then after those boys were ahead and moved out of the room, PW4 Smt Vijaya Bhandari bolted the bed room from inside and from the window of the room PW1 Inder Mal Bhandari and PW4 Smt Vijaya Bhandari made shouts so as they may be saved. After SC No. 20/2011 4/27 State Vs. Ajay Thakur & Other sometime the neighbors and police arrived at the spot. The robbers had left by then. PW9 scribed tehrir Ex PW9/A and got case FIR No. 351/05 registered under Sections 394/34 IPC Crime Team and photographer were called at the spot. Spot was got photographed. Crime Team could not obtain any chance print from the spot.
On 24/07/2005 when PW14 then SI Suresh Chand was in search of the accused alongwith PW8 Ct Manohar Singh then he received information and thereafter at 8.20 pm in the street near Kothi No. 108, Anupam Garden, accused Ajay Thakur was apprehended. Said accused was known to IO previously and he was enquired. Disclosure of accused Ajay Thakur was recorded of being one of the robbers and Rs 1600/ part of the booty of the robbery was recovered from him. Accused Ajay Thakur was arrested but later on he refused for participating in test identification parade.
On 28/08/2005, PW14 then SI Suresh Chand with PW10 Ct Rajbir were in search of accused near Mall, Saket, Khoka Market at 5 pm when secret informer informed the IO that a boy having stolen rings, lockets, was showing them to the people for selling at high SC No. 20/2011 5/27 State Vs. Ajay Thakur & Other rates. At 5.10 pm near Gurdwara, Saket at Gurdwara Road at the pointing out of the informer accused Jogeshwar was apprehended. Said accused was known to PW14 previously. From the right pocket of worn pant of accused Jogeshwar three rings, locket with broken chain and locket were recovered which were stated to be part of the booty of the robbed articles. Disclosure statement of accused Jogeshwar was recorded. For the said jewellery articles, test identification parade was organized in which PW4 identified them.
On conclusion of investigation, charge sheet for offences under Sections 394/397/411/34 and 120 IPC was filed against the accused in the court.
2. On completing the requirements of Section 207 IPC, the case was committed to the Court of Sessions.
Supplementary charge sheet for proclaimed offender accused Buttan Rai @ Dev and Shanker Thakur was also filed, sent to Court of Sessions and is annexed with file of this case. CHARGE:
3. Charge for offence under Section 397 IPC against SC No. 20/2011 6/27 State Vs. Ajay Thakur & Other accused Ajay Thakur and for offence under Section 411 IPC against accused Jogeshwar Thakur was framed by my Ld. Predecessor vide order dated 05/09/2006 to which accused pleaded not guilty and claimed trial.
WITNESSES:
4. To connect the accused with the offences charged, the prosecution has examined in all 14 witnesses namely PW1 Sh Indermal Bhandari; PW2 Ms. Pooja; PW3 Sh Shanker; PW4 Ms. Vijaya Bhandari; PW5 HC Baldev; PW6 Ct Girdhar Singh; PW7 HC Rattan Singh; PW8 Ct Manohar Singh; PW9 Ct Shibu; PW10 Ct Rajvir; PW11 Dr Priyadarshi Shailesh, PW12 Ms. Barkha Gupta, Ld. ASJ, PW13 Ct Sukh Lal and PW14 Inspector Suresh Chand Sharma. PW2 Ms. Pooja was partly examined. Since she changed her residence, she could not be located even by IO to appear and complete her testimony. Incomplete testimony of PW2 cannot be read in evidence as such.
SC No. 20/2011 7/27
State Vs. Ajay Thakur & Other STATEMENT OF ACCUSED:
5. Thereafter accused were examined under Section 313 Cr.P.C wherein they pleaded innocence and false implication. Accused Jogeshwar Thakur stated that he was illegally arrested from his native village Jharkhand, police had obtained his signatures on blank papers and he never gave any disclosure statement. Accused Jogeshwar Thakur also stated that he had been working in Kothi No. 108 and he had introduced Bhagirath to Smt Vijaya Bhandari and asked her to keep him as a servant but was falsely implicated as the actual offender were not arrested. Accused Jogeshwar Thakur denied to lead defence evidence.
Accused Ajay Thakur entered upon his defence and examined DW1Sh Mangatram who testified of being the Manager in M/s Monga Roadlines Pvt Ltd at 10818, Nabi Karim, Jhandewalan Road, Delhi where Ajay Thakur was working as a cash collector from the parties for the last 7/8 years. DW1 also stated that the Ajay was residing in the house no. 108, Anupam Garden, Sainik Farms while he was working in the office in the day time. DW1 also stated that from 1/06/2005 to 15/06/2005 accused Ajay Thakur stayed at the SC No. 20/2011 8/27 State Vs. Ajay Thakur & Other aforesaid address of office of Nabi Karim because the owner of said house was abroad; being servant in the office as well as at of employer residence, Ajay Thakur was usually given Rs 2000 2500/ for use of expenses and instead police falsely implicated him in this case.
ARGUMENTS:
6. I have heard the arguments of Ld. Addl. PP for the State, Ld. Counsel for the accused and the accused and have perused the record including the evidence and given my thoughts to the rival contentions put forth.
6(i) Ld. Addl. PP argued that the material witnesses PW1 and PW4 had identified the accused to be the offenders. Though the names, addresses of the assailants were not given in the lodged first information report but there can be marginal error in respect of that but since the accused Ajay Thakur had also refused for participating in test identification parade, adverse inference can be drawn against him and prosecution has been able to prove its case against the SC No. 20/2011 9/27 State Vs. Ajay Thakur & Other accused persons beyond reasonable doubt.
6(ii) Ld. Defence Counsel argued that accused were not named in the lodged first information report, even in the statements under Section 161 Cr.P.C of the witnesses recorded and were first time identified by PW1 and PW4 in the court and were falsely implicated. It was also argued that both these accused were previously known to the material witnesses; had they been involved in the occurrence in question, there was no impediment in naming them in the first information report. By not naming them in the lodged first information report, statements under Section 161 Cr.P.C and then later on naming and identifying them as an accused, the material witnesses have made considerable improvements, exaggerations from their previous statements which are an after thought and the evidence of the material witnesses lacks credibility to rest the conviction on their version. PW4 was categorical when he stated accused Jogeshwar Thakur was known to her but in the course of her testimony she identified him as Bhagirath (not arrested) instead. It was also argued that after few days of the occurrence accused were shown to the witnesses at house of complainant, as admitted by the material SC No. 20/2011 10/27 State Vs. Ajay Thakur & Other witnesses PWs 1 and 4 in the course of their testimonies, while after about 45 days of the alleged offence they were shown arrested in the case and so accused Ajay Thakur had valid reasons for refusing to participate in the Test Identification Parade which is mere farce and there exists no ground for drawing any adverse inference against the accused. PW3 had also not identified accused Jogeshwar Thakur as offender. For alleged recovery shown from accused Jogeshwar Thakur, no independent witness has been joined in the recovery. Also was stated that accused Ajay Thakur was employed in nearby house no. 108, Sainik Farm, known to the material witnesses, as admitted by them. Ld. Defence Counsel also argued that said house at Sainik Farm were built up on big plots, the version of the neighbors having arrived on hearing of shouts of PW1 was improbable as such shouts from inside the house could not be heard by the neighbors in adjacent houses even. Such neighbors have not been cited nor examined as prosecution witness (es). It was also argued that several times Ajay Thakur and Jogeshwar Thakur were interrogated, taken to house of PW1 before the date of their shown arrest. It is not the case of the prosecution that any of the accused was having his face muffled at SC No. 20/2011 11/27 State Vs. Ajay Thakur & Other the time of commission of the offences. Despite the material witnesses knowing the accused before the date of commission of crime, non revealing of the identity, names and addresses of the accused in the lodged report makes the prosecution version doubtful and reflect the story to be manipulated. No finger prints were lifted from the spot for the scientific investigation. The alleged recovery of Rs 1600/ is meaning less since currency notes did not have any peculiar mark of identification to be presumed to be belonging to victims of the crime. Acquittal of the accused has been prayed for. APPRECIATION OF EVIDENCE:
7. In the lodged first information report Ex PW1/A by PW1, the intruders/offenders excepting servant Dev they have not been named. The description of the two offenders/intruders, the boys given there is, age 20/22 years; height 5'.6"5'.7", colour wheatish. One of the boy was wearing black shirt and pant and other boy was wearing red colour big check shirt and pant. Also there is no mention in Ex PW1/A that any of the intruders/offenders were having their face (s) muffled at the time of commission of the offence. SC No. 20/2011 12/27
8. In the course of his testimony, PW1 elicited that accused Jogeshwar Thakur was the maternal uncle of his servant Bhagirath. Also PW1 said that accused Bhagirath used to visit his house once or twice. PW1 also admitted that in those days accused Jogeshwar used to work in a kothi at their locality. In the course of his testimony, PW1 stated that accused Jogeshwar was also with the other two boys but he did not tell this fact to the police.
9. In his testimony PW1 in court stated that two boys present in court, accused were those who had come at their house with their servant Dev and committed robberry.
10. It is the case of the prosecution that accused Ajay Thakur was arrested on 24/07/2005 from near Kothi No. 108, Anupam Garden, Sainik Farms, New Delhi in the street by PW14 then SI Suresh Chand. In the course of his cross examination PW14 admitted that accused Ajay Thakur had cooperated in the enquiry initially but later on disappeared. DW1 Sh Mangat Ram, Manager of M/s Monga SC No. 20/2011 13/27 State Vs. Ajay Thakur & Other Roadlines Pvt Ltd testified that from the period 1/06/2005 to 15/06/2005 accused Ajay Thakur stayed at their office address at Nabi Karim, Jhandewalan Road, Delhi as the owner of the house no. 108, Anupam Garden, Sainik Farms, New Delhi, where normally accused Ajay Thakur was residing in the night, was abroad.
11. PW1 admitted in the course of his cross examination that after 12 days of occurrence police had brought one boy to his house to whom he identified as robber but he was not knowing the name of that boy. PW3, driver of PW1, testified that accused were arrested after 5/7 days of incident and then they were brought to the kothi of PW1 where PW3 had seen both accused and had identified them. Though PW3 claims that he had not seen accused prior to incident but in the course of his cross examination he stated that next to the kothi of PW1, there was kothi of Monga Sahab bearing no. 108.
12. PW4 , also the victim of occurrence, inter alia alleged that two boys who had come towards her during the course of occurrence, had tied her mouth with the help of her dupatta and SC No. 20/2011 14/27 State Vs. Ajay Thakur & Other thereafter they tied her feet also pursuant to which her three worn rings were removed and her gold chain with diamond pendant was pulled by one of them. PW4 stated that out of those three persons, one was servant Dev (P.O accused) and the other was Ajay. In the course of her testimony PW4 identified accused Jogeshwar as Bhagirath. No where in his testimony PW1 stated that mouth or feet of PW4 had been tied by the robbers. PW1 inter alia deposed that in the course of occurrence he was dragged by the two boys to the room and those two boys removed the master key from his shirt pocket by which PW1 opened the almirah and took out Rs 5,000/ cash and gave to those boys, subsequently those boys also removed some silver utensils and asked for more money and PW1 gave them another Rs 5,000/; on the demand of those boys PW1 gave them a plastic bag in which they kept all the articles. In court, accordingly PW1 had improved upon the narration of sequence of occurrence and his version is contradictory to what he reported in Ex PW1/A. In Ex PW1/A he had not stated that he was dragged or that from the shirt pocket of PW1 two boys had removed the master key but he inter alia stated that from the key, iron almirah was opened by those accused while said SC No. 20/2011 15/27 State Vs. Ajay Thakur & Other key he had taken out from the wooden almirah and given to those boys. Also in Ex PW1/A, PW1 had stated that from the iron almirah those boys took Rs 10,000/ approximately. No where PW1 says that he had initially given Rs 5,000/ and after removal of silver utensils, he had again given Rs 5,000/ or on their demand he had given them a plastic bag to keep the articles in it. PW1 was confronted and contradicted on these counts with his previous statement.
13. PW4 testified that Dev, as servant, was employed at instance of their permanent employee Bhagirath about five days prior to incident and that accused Jogeshwar was maternal uncle of Bhagirath who was employed in house no. 108, Sainik Farms. It is the presented case of prosecution that accused Jogeshwar was resident of neighboring house no. 108, Anupam Garden. Accused Jogeshwar being maternal uncle of Bhagirath who was under employment of PW4, was also known to the victims of crime namely PWs 4 and 1. PW4 stated that her servant Bhagirath was employed by them about one and half year prior to the incident. She also stated that accused Jogeshwar used to visit her house to visit Bhagirath being maternal SC No. 20/2011 16/27 State Vs. Ajay Thakur & Other uncle of Bhagirath. PW4 stated that Bhagirath had left for his native village about five days prior to the incident though in her previous statement Ex PW4/D1, PW4 had stated that accused Jogeshwar had arranged Dev to be employed as their servant but in the course of her testimony she denied said fact qua which she was confronted with the said previous statement. PW4 further admitted that she had identified accused Jogeshwar when he was brought to her residence by the police. Further considerable improvement from previous statement is borne out from the testimony of PW4 when she alleges that she had not identified accused Jogeshwar at the time of incident since at that time his face was covered. There is no mention either in the lodged report Ex PW1/A or in the statement under Section 161 Cr.P.C of PW4 or of any other material witness that at the time of commission of robbery of the cash, jewellery articles etc. from PWs 1 and 4, any or all the offenders were in muffled face. PW4 however admitted that during course of investigation police brought accused to their residence but she did not remember whether one or two or all accused were so brought but she says that when accused Jogeshwar or other accused were brought to her residence then PW1, PW2 and SC No. 20/2011 17/27 State Vs. Ajay Thakur & Other PW3 were also present. PW4 could not say whether accused Ajay or Dev (P.O accused) had removed the jewellery but she says both were present, tied her and then removed her jewellery.
14. PW1 testified that he had stated to police that accused had also removed silver utensils from almirah for which fact he was confronted with his previous statement where there was no mention of it. PW1 says that Rs 10,000/ robbed were in the shape of ten packets in denomination of notes of Rs 500/. PW4 says that the robbed Rs 10,000/ were comprising of two currency notes of Rs 100/ denomination and other notes of Rs 500/ denomination. PW1 also says that when the jewellery articles were removed or taken from his daughter in law by the accused, he was not present in that room. PW1 stated that his neighbor Mehta informed to police upon which police arrived there. Said Sh Mehta, neighbor of PW1 has neither been cited nor examined as prosecution witness.
15. PW3 Shanker testified of being present in his servant room in the said house, watching TV when two boys with knives SC No. 20/2011 18/27 State Vs. Ajay Thakur & Other came, tied him with rope and chunni, closed his mouth with the help of cloth. PW3 stated that Dev (P.O accused) and those two boys threatened to kill him if he raised noise. After some time those assailants also brought his wife PW2 to his room from ground floor and her hands were also tied with the help of chunni. PW3 stated that after 60/75 minutes when he and PW2 managed to to free themselves, PW2 shouted from the window for help upon which later neighbors and police arrived there. PW3 had not seen the commission of offence of robbery of articles of PW2 and PW4 out of their possession. PW3 stated that accused Ajay Thakur had tied his hands and had come to his room with Dev (P.O accused) and one another boy.
16. PW6 Ct Girdhar Singh is the member of Crime Team who accompanied PW7, who was also member of Crime Team to the spot. PW6 took six photographs whose positives are Ex PW6/1 to 6 and negatives are Ex PW6/7 (collectively). PW7 HC Rattan Singh did not find any chance print at spot and has proved report Ex PW7/A. PW14 speaks of the Crime Team having arrived at the spot at SC No. 20/2011 19/27 State Vs. Ajay Thakur & Other about 3 am on 11/06/2005. Crime Report Ex PW7/A finds mention of the time of examination as 7.30 am to 8.30 am on 11/06/2005. PW6 also stated that crime team had reached at 7.30 am.
17. PW14, the investigating officer, testified of having received information about coming of accused Ajay Thakur at Anupam Garden Road on 24/07/2005 and having apprehended him that day and recovered Rs 1600/ in the form of three currency notes of Rs 500/ denomination and ten currency notes of Rs 10/ denomination from his possession, seized vide memo Ex PW8/D. Said Rs 1600/, the currency notes Ex D1 (colly) have not been identified by either PW1 or PW4 to be the currency notes robbed. Even PWs 1 and 4 never stated of robbery of any currency notes of Rs 10/. Said currency notes Ex D1 (colly) have been claimed solely by accused Ajay Thakur to the exclusion of all others. Ex PW8/D had been witnessed by PW8 Ct Manohar Singh. PW8 Ct Manohar Singh testified that on 11/06/2005 he alongwith PW14 were patrolling at about 8 pm on Country Club Road when PW14 received a secret information that accused Ajay Thakur would come to the side of SC No. 20/2011 20/27 State Vs. Ajay Thakur & Other house of Monga Sahab. PW8 in the course of his entire testimony does not speak of apprehension of accused Ajay Thakur on 24/07/05 and recovery of Rs 1600/ from him on that day. Instead PW8 deposed that accused Ajay Thakur was apprehended on 11/06/2005 and on that day Rs 1600/ were recovered from him. PW8 has not been cross examined by Ld. Addl. PP on that count. No independent witness has been joined in the apprehension of accused Ajay Thakur, his search or seizure of the currency notes from his possession. Even no efforts in that direction for calling upon any residents of nearby locality were so made.
18. PW14 also stated of having received information on 28/08/2005 at Saket Market, when he was with PW10 Ct Rajbir, about a person in possession of jewellery roaming about to sell the same would come there. As per PW14, near Gurdwara, Saket at about 5.15 pm on 28/08/2005 accused Jogeshwar was apprehended and arrested. Also as per PW14, from possession of accused Jogeshwar three gold rings and one locket with a broken chain were recovered and seized vide memo Ex PW10/D. PW10 testified that SC No. 20/2011 21/27 State Vs. Ajay Thakur & Other accused Jogeshwar was arrested from Khoka Market, Saket. PW10 no where stated that accused Jogeshwar was arrested near Gurdwara, Saket.
19. PW14 in the course of his examination elicited that he had interrogated accused Jogeshwar after the incident 2/3 times before his arrest. Even PW14 admitted that accused Ajay Thakur had cooperated in the inquiry initially. PW1 deposed of police having brought one boy to his house after 12 days of incident whom he had identified as robber. PW3 also narrated of both accused having been brought to the kothi of PW1 after their arrest which was after 5/7 days of the incident, at which place he had seen both the accused and identified them. Even PW4 admitted that in the course of investigation police had brought the accused persons to their residence and then PW1, PW2 as well as PW3 were also present. Accused Jogeshwar was known to PW1 and PW4 prior to occurrence being maternal uncle of their employee Bhagirath and was resident of nearby house no. 108. It is also admitted case of the prosecution that accused Ajay Thakur was employed in house no. 108 nearby the house SC No. 20/2011 22/27 State Vs. Ajay Thakur & Other no. 109 where the occurrence of robbery took place and was interrogated several times after the occurrence by PW14 and accused Ajay Thakur had joined the investigation then. Height of accused Jogeshwar and Ajay Thakur in their conviction slips with charge sheet find mention as 5'.4" and 5'.3" respectively. So do they appear in height, as seen in Court. The description of height of the intruders in Ex PW1/A is mentioned as 5'.6"/5'.7". Since the PWs 1,3 and 4 have admitted in the course of their testimonies of the accused having been brought to the house of PW1 and 4 within 5/7/12 days of occurrence, which took place in night of 10/06/2005, while as per presented case of prosecution accused Ajay Thakur is shown to have been arrested on 24/07/2005 and accused Jogeshwar is shown to have been arrested on 28/08/2005, refusal of accused Ajay Thakur for participating in test identification parade appears to be fully justified on the face of record, as before 24/07/2005 accused Ajay Thakur was admittedly brought to house of PW1 and shown to PWs 1,3 and 4.
20. Despite the fact that the accused persons were previously known to PW1 and PW4, since accused Jogeshwar Thakur was SC No. 20/2011 23/27 State Vs. Ajay Thakur & Other frequent visitor to the house of PW1 and PW4 and accused Ajay Thakur was servant in the immediate neighborhood at house no. 108, yet these two accused have not been named as perpetrators of the crime in the lodged first information report of PW1, Ex PW1/A and previous statements of PW3 and PW4 recorded in the course of investigation. PW14 admits of having frequently enquired accused Jogeshwar Thakur and Ajay Thakur after the date of incident and having joined them in investigation. PW1, PW3 and PW4 speak of accused having been brought to their house within few days of the occurrence, much before their alleged arrest on 24/07/2005 and 28/08/2005. PW8 testified of accused Ajay having been arrested on 11/6/05 and not on 24/07/2005, as per the version of PW14. PW10 testified of the place of arrest of accused Jogeshwar being Khoka Market, Saket and not the place near Gurdwara, Saket, as alleged by PW14 IO.
21. In Vadivelu Thevar v. The State of Madras AIR 1957 SC 614 oral testimonies have been classified into three categories, namely :
SC No. 20/2011 24/27
State Vs. Ajay Thakur & Other (1)Wholly reliable.
(2)Wholly unreliable.
(3)Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.
CONCLUSION:
22. Cumulative effect of the entire aforesaid discussion is that the material witnesses namely PW1, PW3 and PW4 have made considerable improvements in their testimonies as despite knowing the accused persons prior to occurrence, theyhad not named them in their statements to the investigating agency but simply finding them SC No. 20/2011 25/27 State Vs. Ajay Thakur & Other being acquainted with Dev (P.O accused), the then recently employed servant of PW1 and PW4; have named accused persons as offenders,i.e., the intruders/robbers accompanying said Dev (P.O accused). The elicited discrepancies, material contradictions and infirmities embedded in the statements of PW1, PW3 and PW4 have adversely affected the credibility of these material witnesses, bringing them under category of neither wholly reliable nor wholly unreliable witnesses, as categorized in case of V. Thevar (supra). Regarding manner and apprehension and place of apprehension of accused, also there are material contradictions, inter se, testimonies of PW8,PW10 and PW14, which go to the root of the matter to check the basic version and core of the prosecution case. These embellishments have brought into fore every likelihood of planting of jewellery articles, the case property upon the accused Jogeshwar while these arrayed accused have been admittedly brought to the residence of PW1 and PW4 within 5/7/12 days of occurrence but shown to have been arrested much later on 24/07/05 and 28/08/05 respectively. The case of the prosecution against accused Ajay Thakur and Jogeshwar Thakur has come under cloud of doubt. The accused Ajay Thakur SC No. 20/2011 26/27 State Vs. Ajay Thakur & Other and Jogeshwar Thakur deserve benefit of doubt. The accused Ajay Thakur and Jogeshwar Thakur are acquitted accordingly. Their bail bonds are cancelled, sureties are discharged. File be consigned to the record room, which can be requisitioned afresh on appearance, arrest or production of either or both the proclaimed offender accused Buttan Rai @ Dev and Shankar Thakur.
Announced in the open court (GURVINDER PAL SINGH)
on dated 23/07/2011 ASJ (FTC)/SD/ NEW DELHI.
SC No. 20/2011 27/27