Delhi District Court
State vs . 1) Bittu @ Rakesh on 25 March, 2022
IN THE COURT OF SH. SHIVAJI ANAND, ADDITIONAL SESSIONS JUDGE04
(NORTH), ROHINI COURTS, DELHI
Session Case No. 347/2018
CNR No. DLNT010054972018
State Vs. 1) Bittu @ Rakesh
S/o Sh. Rattan Singh
R/o H.No. B/4, Gali No. 4, West
Kamal Vihar, Karawal Nagar, Delhi.
2) Bittu @ Anna
S/o Sh. Vijay Kumar
R/o N119/230, Dera Kaji Khan, Parwana
Road, Pitampura, Delhi.
FIR No. : 101/2018
Police Station : Jahangirpuri
Under Sections : 392/397/34 IPC
Date of committal to Sessions Court : 06/06/2018
Date of institution : 30/05/2018
Date of Argument : 08/03/2022
Date of reservation of order : 25/03/2022
Date on which Judgment pronounced:25/03/2022
JUDGMENT
1. In brief, the case of the prosecution is that on 21.02.2018 on receipt of DD No. 17A at about 10.42 A.M, the IO of the case ASI Satender alongwith HC Pardeep reached at the spot I.e Karnal bypass, near Mukarba Chowk, but the complainant did not meet there and thereafter the complainant reached in the P.S and got recorded his statement to the effect that on 20.02.2018, he had gone Karnal for attending a marriage function. He further stated that at about 2 p.m when he was returning and reached at Karnal by pass through a bus. It is further stated by him that at Karnal bypass he was waiting for a bus for going to Madhuban Chowk, in the mean time a white colour Swift Desire car in which four boys were sitting stopped near him. He further stated that one of the said boys asked him where he has to go and when he told them he has to go to Madhuban SC No. 347/2018 FIR no. 101/18 PS Jahangirpuri State Vs Bittu @ Rakesh and another Page 1 of 19 Chowk, they said that they will leave him at Madhuban Chowk on fare of Rs. 20/. He further stated that after some time the said boys started giving legs and fists blows to him for the purpose of snatching and they taken out sum of Rs. 65,000/, mobile phone, two rings one of which was gold and another was iron ring and they also snatched his ATM card. He has further stated that when the accused persons asked PIN number of the ATM card, he told them the wrong PIN number and after 45 transaction the ATM card got blocked and at about 3.30 a.m, the said boys left him in front of Bhagwan Mahavir Hospital. He further told that on his asking the said boys also gave him sum of Rs. 500/, his ATM card and mobile phone. He further stated that he took auto and reached to his house and at about 9.40 a.m, he made a call at 100 number.
2. During investigation on 18.03.2018, SI Santosh Kumar, SIU Crime Branch informed about the arrest of accused namely Bitto @ anna and Bittu @ Rakesh in Kalandra u/s 41.1(d) & 102 Cr.P.C and about their disclosure regarding their involvement in the present case. Accordingly, IO of the case collected the copies of documents including the disclosure statements of the accused persons from SUI, crime branch, but since both the accused were in remand in other cases, they could not be interrogated in this case. Thereafter on the permission of the Court, IO of the case interrogated both the accused persons in Mandoli Jail and on 05.04.2018, both the accused persons were formally arrested in the present case.
3. On 07.04.2018, an application for conducing judicial TIP of the accused persons was moved before ld M.M, but they refused to participate in the TIP proceedings. Thereafter one day P.C remand of the accused persons was taken for arrest of coaccused Sandeep and Ajay, for recovery of Swift Desire car used for the commission of offence, for recovery of weapon used for snatching, snatched rings and cash amount of the complainant. During investigation statement of witnesses recorded and CCTV footage of the ATMs from where SC No. 347/2018 FIR no. 101/18 PS Jahangirpuri State Vs Bittu @ Rakesh and another Page 2 of 19 accused persons tried to withdraw cash was taken. Despite best efforts the Swift Desire car and the alleged pistol used at the time of commission of offence could not be recovered. Coaccused Sandeep and Ajay also could not be arested since the address of both the accused persons could not be ascertained from the both the accused persons.
4. After completion of the investigation, chargesheet u/s 392/397/34 IPC was prepared and filed in the court of Ld M.M on 30.05.2018, which was committed to the Court of Sessions vide order dated 02.06.2018 and assignment to Ld Predecessor Court on 06.06.2018.
5. Charge u/s 392/397/34 IPC was framed against both the accused persons vide order dated 18.07.2018, to which they pleaded not guilty and claimed for trial.
6. The prosecution had examined 10 witnesses in support of its case. The details of said witnesses are as under: S.No. Name of prosecution witness Purpose of examination 1 PW1 Sh. Ravinder Sikka PW1, Sh. Ravinder Sikka, who is the complainant and victim of the case deposed in detail about the incident which took place with him on the date of commission of offence i.e 20.02.2018. He came to prove his statement given to the police by him as Ex. PW1/A and site plan prepared by the police at his instance as Ex. PW1/B. During his evidence before the Court he proved the photocopy of his ATM card of Indusind Bank as Ex.P1.
2 PW2 ASI Raj Pal PW2 ASI Rajpal, who was posted as Duty Officer at P.S Jahangirpuri on 21.02.2018 at the relevant time period deposed that he got recorded the FIR of the present case.
He came to prove the computerized copy of FIR No. 101/18 as Ex. PW2/A(OSR), endorsement made on the rukka as Ex.
SC No. 347/2018 FIR no. 101/18 PS Jahangirpuri State Vs Bittu @ Rakesh and another Page 3 of 19PW2/B and certificate u/s 65B of Indian Evidence Act as Ex. PW2/C and attested copy of DD No. 17A as Ex. PW2/D. 3 PW3 ASI Satender PW3 ASI Satender deposed about his visit to the spot on receipt of DD No. 17A and about the recording of statement of the complainant/victim of the incident in question. This witness came to prove his endorsement made on the statement of the complainant as Ex. PW3/A. He further deposed that after registration of FIR the investigation of the case was marked to another IO.
4 PW4 HC Pradeep Teotia PW4 HC Pradeep Teotia deposed that he accompanied ASI Satender on 21.02.2018, when DD No. 17A was received by ASI Satender telephonically and they both reached at the spot i.e Mukarba Chowk.
5 PW5 Ct. Satish PW5 Ct. Satish deposed that on 08.04.2018, he joined the investigation of the present case alongwith IO SI Praveen Kumar. He deposed about investigation carried out by IO of the case and pointing out memos was exhibited as Ex. PW5/A and Ex. PW5/B. 6 PW6 Ct. Mahesh PW6, Ct. Mahesh deposed that on 18.03.2018 he recorded DD entry No. 30B regarding arrest of accused Bittu @ Anna information regarding which was given by ASI Narender of Crime Branch. He came to prove the attested copy of said DD entry as Ex. PW6/A. 7 PW7 Sh. Karan Makan PW7 Sh. Karan Makan, who was posted as Dy. Branch Manager in Indusind Bank deposed that during investigation of this case, on 18.05.2018, he handed over the CD containing CCTV footage of the date of 21.02.2018 for time period 2 a.m to 4 a.m of the ATM of their bank alongwith certificate u/s 65B of Indian Evidence Act.
He came to prove the reply as Ex. PW7/A, certificate u/s 65B of Indian Evidence Act as Ex. PW7/B and the CD containing CCTV footage as Ex. PW7/C. 8 PW8 SI Santosh Kumar PW8 SI Santosh Kumar of SIUI, Crime SC No. 347/2018 FIR no. 101/18 PS Jahangirpuri State Vs Bittu @ Rakesh and another Page 4 of 19 Branch deposed about arrest of accused persons after receiving a secret information by crime branch on 16.03.2018. He came to prove the true copy of DD No. 17 as Ex.
PW 8/A, disclosure statements of accused Bittu @ Anna and Bittu @ Rakesh as Ex.
PW8/B and Ex. PW8/C. He also came to prove the arrest memos of accused Bittu @ Anna and Bittu @ Rakesh as Ex. PW8/D and Ex. PW8/E respectively and Kalendra u/s 41.1(d) u/s 102 Cr.P.C, dated 17.03.2018, recorded by him as Ex. PW8/F. 9 PW9 SI Anshu PW9 SI Anshu deposed that on 21.02.2018 he joined the investigation of the present case and he alongwith the complainant went to the spot i.e Karnal bypass and on the pointing out of the complainant he prepared the site plan and recorded statement u/s 161 Cr.P.C of the complainant. He further deposed about the investigation joined by him on 18.03.2018, 19.03.2018 and 28.03.2018. He came to prove the application for issuance of production warrants of accused Bittu @ Anna and Bittu @ Rakesh as Ex.PW9/A, the application for permission to interrogate the above said accused persons as Ex.
PW9/B. 10 PW10 SI Praveen PW10 SI Praveen, IO of the case deposed about the investigation carried out by him in this case on different dates I.e 31.03.18, 05.04.18, 07.04.18, 08.04.18 and 18.05.18 including the investigation carried out about arrest of both the accused persons in this case, conducting of their personal search and recording of their disclosure etc. He came to prove the arrest memos of both the accused persons as Ex. PW10/A & Ex.
PW 10/B, their personal search as Ex.
PW10/C & Ex. PW10/D and disclosure statement of the accused persons as Ex.
PW 10/E & Ex. PW10/F. He also came to prove the application for conducting judicial TIP of the accused persons as Ex.
PW10/G. SC No. 347/2018 FIR no. 101/18 PS Jahangirpuri State Vs Bittu @ Rakesh and another Page 5 of 19
7. On 04.01.2019, both the accused persons gave joint statement to the effect that they admit the TIP proceedings conducted by Sh.Vikram, Ld. MM and photocopy of kalandra U/s 41.1D/102 Cr.P.C. dated 17.0.3.2018 and they have no objection if the TIP proceedings and photocopy of kalandra were exhibited in the evidence without formally summoning the concerned MM and the Ahlmad. In view of the joint statement of both the accused persons, on separate statement of ld Additional P.P for State, PW Sh. Vikram, ld M.M and Ct. Hawa Singh were dropped from the list of witnesses.
8. After completion of prosecution evidence, statement of the accused was recorded u/s 313 Cr.P.C., wherein they denied the case of prosecution and claimed that they have been falsely implicated in the present case. They further deposed that they neither made any disclosure statement, nor they taken to the police to the spot. They further deposed that their signatures were obtained on several blank papers, which were converted into different memos against them. The accused had chosen not to lead any defence evidence and hence matter was adjourned for final arguments.
9. I have heard Sh. Sanjay Jindal, Additional P.P for the State and Sh. Yashvir Singh, ld amicus curiae for both the accused persons.
10. Ld. Additional P.P for the State has stated that accused persons committed robbery with the complainant at the time of night on the pretext of leaving him at his destination. He has further submitted that they forcibly snatched cash of the complainant and also tried to withdraw cash amount from his ATM. He has further submitted that although the complainant did not identify accused Bittoo @ Rakesh during his testimony before the Court, however it does not mean that no offence was committed by the accused persons with the complainant. He has further submitted that accused persons are habitual offenders of doing theft and robbery and hence they may be convicted in the present case.
SC No. 347/2018 FIR no. 101/18 PS Jahangirpuri State Vs Bittu @ Rakesh and another Page 6 of 1911. On the other hand, ld. amicus curiae for accused persons has argued that accused persons have been falsely implicated in the present case. He has further submitted that there are nothing incriminating against the accused persons and they have been arrested in this case only on the basis of disclosure statement made by them in some other case. It is further submitted by ld amicus curiae that prosecution miserably failed to prove its case against the accused persons beyond reasonable doubts and hence they may be acquitted in the present case. He has further submitted that the complainant even failed to identify accused Bittoo @ Rakesh during his testimony in the court and he has categorically deposed that the said accused is not the person who committed robbery with him.
12. For the sake on convenience, evidence of prosecution witnesses in short is mentioned as under: A) PW1 Sh. Ravinder Sikka, who is complainant and also the victim of the case deposed that he was running factory of manufacturing readymade shirts at Shakurpur Village, Britannia Chowk, Delhi. He further deposed that on 20.02.2018, he was returning from Karnal after attending marriage function of the daughter of his maternal uncle, at about 12.30 night he boarded a bus for returning to his home at Delhi and at about 2 p.m he reached at Karnal Bypass Mukarba Chowk. He further deposed that he crossed the road for going to Madhuban Chowk and started waiting for the bus and in the meantime, one white colour Swift Desire car came there and stopped near him, in which four persons were sitting. He further deposed that one person asked him, where he had to go and he told them that he has to go to Madhuban Chowk. He further deposed that the said person asked him if he had change of Rs. 20/ then he can sit in the said car and they would drop him at Madhuban Chowk. He further deposed that he replied that he had change of Rs. 20/ and he sat on the back seat of the said car. He further deposed that just after two minutes of the start of the car, the person who was SC No. 347/2018 FIR no. 101/18 PS Jahangirpuri State Vs Bittu @ Rakesh and another Page 7 of 19 sitting on the front seat, said that "teri to aisi taisi ho gayi, tu to phas gaya". He further deposed that the said person caught his collar, he tried to open the door of the car, but the door could not be opened. He further deposed that thereafter, all the three persons sitting in the car except driver, started beating him with their hands. He further deposed that the said persons took out cash of Rs. 65,000/ from the pocket of his shirt. He further deposed that the said person also snatched one gold ring and one iron ring from his fingers and they also forcibly took out his purse from the back side pocket of his pant, which was containing cash of Rs. 200 400/, one ATM Card of Indusind Bank and one Metro Card. He further deposed that said persons also snatched his mobile phone make Apple and they asked him to tell the PIN code of the ATM Card. He further deposed that he told them the wrong PIN Code of his ATM Card and also asked him as to how much cash was in his bank account, to which he replied that an amount of approximately Rs. 20,000 to 25,000/ would be in his said account. He further deposed that thereafter, the said persons forcibly laid down him in the car and they drove the car continuously and visited 45 ATM machines on different places. He further deposed that accused persons tried to withdraw the cash from 45 ATM machines by using his ATM Card, but could not withdraw the cash due to the wrong PIN code. He further deposed that when the said persons could not withdraw the cash from ATM machine, then every time they hit him with hammer on his legs and asked him to tell the correct PIN Code and threatened him that they would shoot him if cash amount was not withdrawn from the ATM machines. He further deposed that after attempting 45 times, his ATM Card might have blocked as the said persons thereafter did not try to use his said ATM Card. He further deposed that it took approximately two hours in that process. He further deposed that he requested the aforesaid persons to leave him near his house as they had taken his entire cash and other articles. He further deposed that accused persons returned his mobile phone to him and also gave him Rs. 500/. He further deposed that accused persons dropped him at some distance ahead of Bhagwan Mahavir Hospital and instructed him to go straight and do not look behind. He further deposed that after SC No. 347/2018 FIR no. 101/18 PS Jahangirpuri State Vs Bittu @ Rakesh and another Page 8 of 19 getting down from the car, he saw the number plate of the car and could remember only last four digits of the said car, which were 4540. The said persons ran away in the car after dropping me there. He further deposed that he took an auto and went to his house. He further deposed that it was 4 am when he reached at his home and since he was tensed he went to the bed and thereafter, at about 8 am he made call to the police at 100 number. He further deposed that after a while, he received a call from the police official, who informed him that the area of offence falls within the jurisdiction of PS Shalimar Bagh. He further deposed that thereafter he made call to P.S Shalimar Bagh and police officials of P.S Shalimar Bagh called him at the spot i.e. Karnal Bypass. He further deposed that he went at the spot where police officials met him and told him that the area of offence falls within the jurisdiction of PS Jahangirpuri. He further deposed that thereafter the police officials of PS Jahangirpuri came there and inspected the spot. He further deposed that his statement was recorded by the police at police station Jahangirpuri and proved the same as Ex.PW1/A. He further deposed that police also prepared the site plan Ex.PW1/B. He further deposed that on the same day of recording of his statement, he alongwith police officials went to Indusind Bank at Lok Vihar for making enquiry about the use of his ATM Card on the day of incident. During his evidence, PW1 pointed out towards accused Bittu @ Anna and deposed that he was one of the person who committed robbery with him alongwith other persons. He further deposed that accused Bittu @ Anna was sitting besides him on the back seat of the said car and he also gave beatings to him and also hit on his leg with hammer. However PW1 failed to identify accused Bitto @ Rakesh S/o Rattan Singh during his evidence in the Court. During his evidence in the Court, this witness also produced his ATM Card of Indusind Bank and came to prove the photocopy of said ATM Card as Ex.P1 (OSR). During his evidence before the Court, the complainant was also cross examined by Ld. Substitute Additional PP for the State on certain points which were told by him to the investigating official at the time of recording of his statement given to the police including on the point that he could not identify accused Bitto @ Rakesh despite SC No. 347/2018 FIR no. 101/18 PS Jahangirpuri State Vs Bittu @ Rakesh and another Page 9 of 19 the fact that during investigation on 08.04.2018, PW1 had visited PS Jahangirpuri and identified both the accused persons to be the same persons who had committed robbery with him. However on cross examination by Ld Substitute Additional P.P for State, PW1 deposed that he is not the same person who had committed robbery with him and denied that he was intentionally not identifying accused Bitto @ Rakesh S/o Rattan Singh and deposing falsely in his favour as he want to save him. During cross examination he further deposed that he cannot tell who had put pistol on his waist and who had shown him knife. He further deposed that he cannot say whether accused Bittu @ Anna had used the pistol or knife on that day or not. He further deposed that he got his medical treatment from a private doctor and police did not get prepared his MLC.
During his cross examination by ld amicus curiae for both the accused persons, PW1 denied the suggestion that he improved his version to falsely implicate the accused persons. He also denied that no such incident took place with him or that entire story has been cooked up by him at the instance of IO. He further denied that no efforts were made by the accused persons to withdraw his money. He also denied that he has falsely identified accused Bittu @ Anna before the court today at the instance of IO and that he was deposing falsely.
B) PW2 ASI Rajpal deposed that on 21.02.2018, he was working as Duty Officer from 8 a.m to 4 p.m and at about 01.05 p.m, ASI Satender handed over him Tehrir, on the basis of which, he got recorded the FIR of the present case. He came to prove the computerized copy of FIR No.101/18 as Ex. PW2/A(OSR), endorsement made on the rukka as Ex. PW2/B and certificate u/s 65B of Indian Evidence Act as Ex. PW2/C and attested copy of DD No. 17A as Ex. PW2/D. He further deposed that after registration of FIR, he handed over the copy of FIR and rukka to SI Anshu for investigation purposes. PW2 also deposed about recording of DD entry No. 17A on the same day by him and came to prove the attested copy of the same as Ex. PW2/D(OSR).
SC No. 347/2018 FIR no. 101/18 PS Jahangirpuri State Vs Bittu @ Rakesh and another Page 10 of 19C) PW3 ASI Satender deposed that on 21.02.2018 after receipt of DD No. 17A, he went to the spot i.e Mukarba Chowk, Ring Road, Delhi, but no one was found there. He further deposed that he came back to P.S and made a call to the caller of DD No. 17A and then complainant Ravinder Sikra came to the P.S and got his statement recorded. He further deposed that he made endorsement on the statement of the complainant and came to prove his endorsement as Ex. PW3/A and gave the same to Duty Officer, who registered the FIR of the present case and thereafter the investigation of the case was marked to another IO. During cross examination this witness deposed that he did not conduct any further investigation of this case except recording statement of the complainant and denied that suggestion that complainant did not meet him or that he did not record statement of the complainant.
D) PW4 HC Pradeep Teotia deposed that on 21.02.2018, on receipt of DD No. 17A, he joined the investigation of the present case alongwith ASI Satender and deposed that when they reached at the spot I.e Mukarba Chowk, Ring road, Delhi, but no one was found there. He further deposed that thereafter IO made a call to the caller of DD No. 17A, who told to ASI Satender that he had reached to his house and will come to P.S for giving statement and thereafter they returned back to P.S. E) PW5 Ct. Satish deposed that on 08.04.2018, he joined the investigation of this case with IO SI Parveen Kumar and Ct. Hawa Singh. He further deposed that on that day both the accused persons were taken out from the lock up and were taken to the IO room. He further deposed that IO interrogated both the accused and when the interrogation was going on, complainant Ravinder came to the police station and identified both the accused persons. He further deposed that thereafter, they left the police station with both the accused and both the accused persons pointed out various places at Karawal Nagar, Burari and Adarsh Nagar for search of accused Sandeep and Ajay but they could not be SC No. 347/2018 FIR no. 101/18 PS Jahangirpuri State Vs Bittu @ Rakesh and another Page 11 of 19 found. He further deposed that thereafter both the accused led the police party to Karnal Bypass and pointed out the place of occurrence near Mukraba Chowk. He further deposed that pointing out memos of both the places were prepared by the IO and he came to prove the same as Ex.PW5/A and Ex.PW5/B respectively. He further deposed that thereafter, both the accused were taken to BJRM Hospital for their medical examination and after their medical examination, they were produced before the concerned court and IO recorded his statement in this case.
F) PW6 Ct. Mahesh deposed that on 18.03.2018, he was posted in PS Jahangirpuri and was working as DD Writer from 8.00 a.m to 4.00 p.m. He further deposed that at about 02.30 pm, ASI Narender, Crime Branch gave an information over telephone regarding arrest of Bittu @ Anna, s/o Vijay Kumar and Bittu @ Rakesh, s/o Ratan Singh in Kalandra u/s 41.1(d) and section 102 Cr.P.C vide DD No. 8 dated 17.03.18 SIU Crime Delhi. He further deposed that he accordingly recorded the said information in Rojnamcha vide DD no. 30B and informed the contents of said DD to SI Santosh on his mobile. PW6 came to prove the attested copy of said DD entry as Ex. PW6/A. During cross examination this witness accepted that the phone number from which ASI Narender gave information was not mentioned in DD No. 30B, but he denied the suggestion that the said DD was made at the instance of higher police officials. It is wrong to suggest that I am deposing falsely at the instance of IO.
G) PW7 Sh. Karan Makan, Dy. Branch Manager, Indusind Bank, Lok Vihar, Pitampura,Delhi deposed that on 18.05.2018, in reply to letter of PSI Anshu of P.S Jahangirpuri dated 26.02.2018, he handed over the CD containing CCTV footage of their ATM of Indusind Bank dated 21.02.2018 for time period 2.00 am to 4.00 a.m alongwith certificate dated 18.05.2018, u/s 65B of Indian Evidence Act. He came to prove his reply as Ex. PW7/A and certificate u/s 65B of Indian Evidence Act as Ex. PW7/B. PW7 came to prove the CD containing CCTV footage as Ex. PW7/C. During his evidence in the Court this witness has seen the SC No. 347/2018 FIR no. 101/18 PS Jahangirpuri State Vs Bittu @ Rakesh and another Page 12 of 19 CCTV footage in the Court when the same was played and stated that it was the same CCTV footage, which was handed over in the CD to the IO.
H) PW8 SI Santosh Kumar deposed that on 16.03.2018, he was posted at SIU, Crime Branch, Delhi and at about 4.30 p.m, Ct. Amit & Ct. Anil alongwith secret informer came to his office and he recorded the secret information vide DD No. 17, dated 16.03.2018. He came to prove the true copy of the same as Ex. PW 8/A. He further deposed that he produced the secret informer before Inspector Pankaj Arora and discussed the matter with senior officers and on their instructions, a raiding party consisting of himself, ASI Rajbir, Ct. Amit, Ct. Anil and Ct. Ghanshyam was organized and at about 5 p.m, they left the office in civil dress vide the above said DD No. 17. He further deposed that they reached near water tank, MCD flats, Avantika, Rohini via ISBT and Burari. He further deposed that there, he requested 45 passersby to join the investigation, but they left without disclosing their names and addresses. He further deposed that the members of raiding party took their positions near gate No. 1, MCD flats, Avantika and at about 8 p.m, one person was seen coming on Mehroon colour scooty and he was pointed out by secret informer as Sandeep was apprehended with the help of staff. He further deposed that he conducted the formal search of Sandeep and recovered one mobile phone make Samsung J7, which was found to be robbed in case FIR No. 99/18, P.S Khajurikhas and the scooty was also taken into police possession. He further deposed that Sandeep was arrested & interrogated and he disclosed that he could get his associates Bittu @ Anna, Arjun and Bittu @ Rakesh arrested from Honda Jazz car from Dushehra ground, Jalebi Chowk, Sultanpuri. He further deposed that they alongwith Sandeep went to Dushehra ground and accused Bittu @ Anna, Bittu @ Rakesh and Arjun were arrested and interrogated. He further deposed that accused Bittu @ Anna and Bittu @ Rakesh disclosed about their involvement in the present case. He came to prove the disclosure statement of accused Bittu @ Anna as Ex. PW8/B and disclosure statement of accused Bittu @ Rakesh as Ex. PW8/C. He further came to prove the arrest memos of accused SC No. 347/2018 FIR no. 101/18 PS Jahangirpuri State Vs Bittu @ Rakesh and another Page 13 of 19 Bittu @ Anna and Bittu @ Rakesh as Ex. PW8/D and Ex. PW8/E. He further deposed that he prepared Kalendra u/s 41.1(d) and 102 Cr.P.C vide DD No. 8, dated 17.03.2018 and proved the same as Ex. PW8/F. During cross examination this witness denied the suggestion that no disclosure statement was made by accused persons. He has also denied that their signatures were obtained on blank papers forcibly, which have been malafidely converted into their disclosure statements.
I) PW9 SI Anshu, deposed that on 21.02.2018, duty officer handed over copy of FIR and original rukka of the present case to him for investigation purpose. He further deposed that he alongwith the complainant went to the spot I.e Karnal bypass, near Mukarba Chowk and on the pointing out of the complainant, he inspected the site and prepared the site plan and thereafter they returned to the P.S and he recorded statement of complainant u/s 161 Cr.P.C. He further deposed that on 18.03.2018, an information was received at P.S Jahangirpuri vide DD No. 30B regarding arrest of accused Bittu @ Anna by SI Santosh Kumar in Kalendra u/s 41.1(d) and 102 Cr.P.C vide DD No. 8, dated 17.03.2018. He further deposed that he went to the office of SIU, Crime Branch and recorded statement of SI Santosh Kumar u/s 161 Cr.P.C and collected the photocopy of the file of the above said Kalendra. This witness further deposed that on 19.03.2018, he moved an application for production warrant of accused Bittu @ Anna and Bittu @ Rakesh and came to prove the carbon copy of the application as Ex. PW9/A. He further deposed that on 28.03.2018, he moved an application Ex.PW9/B before the Court of concerned ld M.M, for permission to interrogate the above said accused persons in Tihar Jail. During cross examination, this witness denied the suggestion that no information was received on 18.03.2018 from the office of SUI crime or that he did not visit the office of SUI crime on that day.
J) PW10 SI Praveen, IO of the case deposed that on 31.03.2018, he received the case file of this case for further investigation. He further deposed that SC No. 347/2018 FIR no. 101/18 PS Jahangirpuri State Vs Bittu @ Rakesh and another Page 14 of 19 he perused the case file and came to know that earlier IO SI Anshu had moved an application for production of accused persons before the concerned Court and same had already been allowed by the concerned Court and accordingly he went to Mandoli Jail on 05.04.2018 and formally arrested accused Bittu @ Anna and Bittu @ Rakesh in the present case. He further deposed that he prepared Arrest memo of accused Bittu @ Anna Ex. PW10/A and Arrest memo in respect of accused Bittu @ Rakesh Ex. PW10/B. He further deposed that he also conducted personal search of both the accused persons vide memos Ex. PW10/C and Ex. PW10/D and recorded their disclosure statements Ex. PW 10/E and Ex. PW10/F. He further deposed that on his request both the accused persons were produced before the concerned Court by the jail officials in muffled face on 07.04.2018 and he moved an application for judicial TIP of both the accused persons but both accused persons had refused to join their judicial TIP. He came to prove the copy of said order as Ex. PW10/G. He further deposed that he obtained one day police custody remand of both the accused persons in the present case and made sincere efforts to recover the robbed articles and also to apprehend the associates of the above said accused persons and both the accused persons were put in the lockup of the PS after their medical examination. He further deposed that on 08.04.2018, both the accused persons were taken out from police lockup and in the mean time complainant of this case namely Ravinder Sikka came at PS and identified both the accused persons as the same who had robbed him alongwith their associates. He further deposed that he recorded statement of complainant in this regard. He further deposed that thereafter both the accused persons took them to the place of occurrence that was Karnal Bypass near Mukarba Chowk towards the road going to Madhuban Chowk side where they had rubbed the complainant of this case alongwith their associates. He further deposed that he prepared pointing out memo in this regard. PW10 further deposed that on that day also they made sincere efforts to apprehend the associates of the arrested accused persons and also to recover the robbed property. He further deposed that subsequently both the accused persons were produced before the concerned SC No. 347/2018 FIR no. 101/18 PS Jahangirpuri State Vs Bittu @ Rakesh and another Page 15 of 19 Court and were sent to JC on his request and he recorded the statements of the police officials, who joined the investigation with him on that day. He further deposed that on 18.05.2018, he obtained the CD of CCTV footage installed in the ATM from where accused persons tried to withdraw the cash alongwith reply of the concerned Manager and certificate u/s 65 B of Indian Evidence Act. He further deposed that after completion of investigation challan of this case was prepared and sent to Court through SHO concerned. During cross examination, this witness denied that suggestion that no disclosure statements were made by the accused persons at any point of time and their signatures were obtained by him on blank papers, which were later on converted into their disclosure statements only to falsely involve them in the present case. He further denied that the complainant of this case never identified the accused persons in the PS at any point of time. He further denied that only to cover up the lacuna, he recorded the statement of the complainant regarding the identification of the accused persons on his own. He further denied that he took the photographs of the accused persons on his mobile phone and the same had been shown to the complainant prior to the filing of the application for the judicial TIP of the accused persons. He further denied that he falsely involve both the accused persons in present case only to solve the present case.
APPRECIATION OF EVIDENCE
13) WHETHER THE TESTIMONY OF THE COMPLAINANT IS
TRUSTWORTHY AND RELIABLE.
The present case, solely rests on the testimony of the complainant. In the deposition of the complainant there are many contradictions. During his testimony in the Court, the complainant gave exaggerated version in many places. In his testimony he deposed that night he had gone to a resort situated at Karnal for attending marriage functions of the daughter of his maternal uncle and at about 12.30 night he boarded a bus for returning to his home to Delhi. However he neither disclosed the name of the resort in which he had gone to attend marriage function, nor produced the ticket of the bus by which he returned back. The SC No. 347/2018 FIR no. 101/18 PS Jahangirpuri State Vs Bittu @ Rakesh and another Page 16 of 19 complainant had further deposed that accused persons took out cash of Rs. 65,000/ from the pocket of his shirt. However during investigation no recovery of the said amount could be effected by the investigation agency. The version of the complainant that he was having cash of Rs. 65,000/ at the time of returning back from the marriage is not digestible and if it was the case that he was going to attend marriage his version can be believed. Further if any person would carry such a big amount with him specially at the time of night he would try not to keep the cash in the pocket of his shirt to be seen by anyone. Similarly the version of the complainant that accused persons took him to 45 ATM machines to withdraw the cash amount and when accused persons could not withdraw the cash amount due to the wrong PIN number told to them by the complainant, then every time they hit him with hammer on his legs. This version of the complainant is also an exaggerated version since no MLC of the complainant has been produced by the investigating agency to prove the version of the complainant. It is unbelievable that if any person would be hit by a hammer he would not sustain any injury and that too 45 times. As per the version of the complainant accused persons were also having pistol with them, however no recovery of the alleged pistol was shown by the investigating agency, which also makes the version of the complainant doubtful. Further the complainant has deposed that accused persons also snatched his mobile phone make Apple and at the time of leaving him near Mahavir Hospital, they returned his mobile phone to him. This version of the complainant is also not believable since no one would return the snatched mobile phone since as per the version of the complainant, the mobile phone was of apple company and accused persons could get good amount the such costly phone.
14) UNEXPLAINED DELAY IN GIVING INTIMATION TO THE POLICE As per the version of the complainant he had reached at home at about 4 a.m. He further deposed that he told the entire facts to his wife and children and they decided to make a call to the police in the morning. He further deposed that thereafter he went to the bed and at about 8 a.m, he woke up and made a call to SC No. 347/2018 FIR no. 101/18 PS Jahangirpuri State Vs Bittu @ Rakesh and another Page 17 of 19 police at 100 number. The complainant has not explained about the delay in making call at 100 number since no prudent man would wait till morning for making call at 100 number, whose cash of Rs. 65,000/ would have been snatched by accused persons. Further his statement was recorded on 21.02.2018 at 1.00 P.M. So the delay in making 100 number call to the police and in recording rukka also makes the story of the prosecution doubtful.
15) FAILUTRE OF COMPLAINANT TO IDENTIFY THE ACCUSED IN THE COURT The complainant also failed to identify accused Bitto @ Rakesh in the Court during his testimony. He could only identified accused Bittu @ Anna during his evidence stating that accused Bittu @ Anna was sitting besides him on the back seat of the said car and he also gave beatings to him and also hit on his leg with hammer. Even during his cross examination by ld Substitute Additional P.P for State, this witness deposed that accused Bitto @ Rakesh is not the same person who had committed robbery with him and he had not seen him and identified him in the P.S on 08.04.2018. Where as per the story of the prosecution the complainant identified the accused Betto @ Rakesh in the P.S on 08.04.2018 and hence the refusal of the complainant to identify the said accused also makes the story of the prosecution doubtful. Moreover, the incident took place between 2 A.M to 4 A.M at night, so the possibility of proper identification of accused Bittu @ Anna by the complainant is also doubtful.
16) ABSENCE OF CCTV FOOTAGES OF THE ATM BOOTHS As per the version of the complainant accused persons tried to withdraw the cash from 45 ATMS machines by using the ATM cards, but could not withdraw the cash as he told wrong PIN code to them. However the prosecution has not placed on record the CCTV footages of the said ATM booths despite the fact that in all the ATM booths CCTVA cameras are installed. Even for the shake of arguments it is assumed that CCTV cameras of 12 ATM booths were not SC No. 347/2018 FIR no. 101/18 PS Jahangirpuri State Vs Bittu @ Rakesh and another Page 18 of 19 functional, still it can not be presumed that the CCTV cameras of all the ATM booths where accused persons tried to withdraw the cash amount were not functional. Hence this thing also goes against the prosecution and in favour of accused persons.
17) ABSENCE OF MLC OF THE COMPLAINANT.
As per the case of the complainant accused persons gave him beatings with legs and fists blow. He has further stated that every time when accused persons could to withdraw the cash amount they gave him beatings on his leg with a hammer. However no MLC of the complainant was conducted by the prosecution branch. The complainant deposed in the Court that he got medical treatment from a private doctor, but no treatment record or MLC was shown by the complainant to prove his version that he received injuries at the time of robbery with him.
18) In view of the above discussion the testimony of the complainant can not be said to be reliable and trustworthy and the submission of ld amicus curiae that no specific role of each of the accused person has been mentioned by the prosecution is acceptable. Further the submission of ld amicus cuaire that no injury was caused to the complainant since no MLC was placed on the record by him is also acceptable. Accordingly in view of the above discussion the Court is of the considered opinion that prosecution failed to prove its case against the accused persons beyond reasonable doubts and in case of accused Rakesh @ Bittoo even the complainant could not identify the accused in the Court during his testimony, hence both the accused persons are acquitted in this case. File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN COURT TODAY I.E 25th of March, 2022 (Shivaji Anand) Addl. Sessions Judge: 04 (North) Rohini Courts: Delhi: 25.03.2022 SC No. 347/2018 FIR no. 101/18 PS Jahangirpuri State Vs Bittu @ Rakesh and another Page 19 of 19