Delhi District Court
State vs . Vishwanath @ Gajju Etc. on 27 April, 2015
SC No. 136/15
State Vs. Vishwanath @ Gajju Etc.
FIR No.85/13
PS Dwarka Sector23
IN THE COURT OF SH. ANIL KUMAR:
ADDITIONAL SESSIONS JUDGE04 : DWARKA COURTS : DELHI
In the matter of:
Unique ID of the case : 02405R0195012013
SC No. : 136/15
FIR No. : 85/13
Police Station : Dwarka Sector23
Under Section : 392/397/411/34 IPC
Date of Institution : 28.06.2013
Case received on assignment : 06.07.2013.
by the Court of Sessions on
Case received by way of . 10.02.2015
transfer by the Court of
undersigned on
Reserved for orders on : 08.04.2015
.
Judgment announced on : 27.04.2015
State Vs. (1) Vishavnath @ Gajju
S/o Shantlal
R/o Jhuggi No.6, Rajeev Gandhi
Camp, Mangla Puri, New Delhi.
(2) Nitin Singh
S/o Shri Rameshwar Singh
R/o H.No. 29,Sultan Garden,
Dichaun Kalan Road,
Najafgarh, New Delhi.
Copy for the Prosecution
Page no. 1 /31 27.04.2015
SC No. 136/15
State Vs. Vishwanath @ Gajju Etc.
FIR No.85/13
PS Dwarka Sector23
(3) Akshay @ Tinku
S/o Shri Kishan Lal
R/o Jhuggi No.8, J.J. Colony,
Rajiv Gandhi Camp,
Mangol Puri, New Delhi.
J U D G E M E N T
1. The accused persons namely Vishwanath @ Gajju, Nitin Singh and Akshay @ Tinku have been sent for trial for commission of offence punishable under Section 392/397/411/34 IPC.
2. As per the story of prosecution brief facts of the case, in the nutshell, are that on 11.04.2013, on receipt of DD No. 9A, SI Gillu Ram alongwith Ct. Rameshwar reached near underpass Shahbad Mohammadpur where complainant Vinod Kumar, s/o Shri Jagdish Chand, R/o H.No. 814, Saini Mohalla, Shahbad Mohammadpur, New Delhi61, met them and got recorded his statement.
In his statement, complainant Vinod Kumar stated that on 11.04.2013 at about 6.40 a.m. he went alone for morning walk on the Firni Road of Shahbad Gaon which leads towards the underpass. At about 7.05 a.m., when he reached half of the way Copy for the Prosecution Page no. 2 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 to Shahbad Gaon and underpass, a black coloured Pulsar motorcycle, which was coming from the side of underpass to Shahabad Gaon and three boys wearing blank Tshirt and black pant were sitting on the said motorcycle, crossed him and went towards Shahbad Gaon. After some distance, they took a Uturn and came back and stopped the motorcycle in front of him. Thereafter, the boy sitting in the middle alighted from the motorcycle and then the boy sitting at the back seat and was carrying gray coloured bag on his back (pitthhoo bag) also alighted from the motorcycle. The boy, who was carrying pitthhoo bag, put a weapon on his right side back and the short boy put a weapon on his left side back and snatched his chain, weighing 2 2 ½ tola which was having one locket of Hanumanji, from his neck. Thereafter, they took his search. The third boy kept sitting on the motorcycle while keeping the ignition of motorcycle on. Thereafter, all the boys went away towards the underpass. Thereafter, he called at 100 number by taking phone from one passer by.
On the basis of statement of complainant, rukka was prepared and case under Section 392/397/34 IPC was got registered through Ct. Rameshwar and prepared the site plan at the instance of complainant and recorded the statements of Copy for the Prosecution Page no. 3 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 witnesses under Section 161 Cr.P.C.
During the course of investigation, on 18.04.2013, on receipt of DD no.11A, SI Gillu Ram collected the papers of a case FIR No. 79/13, PS Sagarpur, under 25/54/59 of Arms Act since the accused Vishwanath @ Gajju had made a disclosure statement in that case and SI Gillu Ram obtained the permission from the Court for interrogation and formal arrest of accused and on 30.04.2013, accused Vishwanath @ Gajju was interrogated and formally arrested at Tihar Jail. On 01.05.2013, I.O. moved an application before the Jail Superintendent for producing the accused Vishwanath @ Gajju before the Court of ACMM, Dwarka but accused did not come to the Court on that day and he got the production warrant issued against the accused for 02.05.2013. On 02.05.2013, SI Gillu Ram moved an application before the Court for conducting TIP which was fixed for 06.05.2013. Since the complainant did not come on 06.05.2013, the TIP of accused was then fixed for 08.05.2013. On 08.05.2013, during TIP proceedings, accused Vishwanath @ Gajju was identified by the complainant. Thereafter, I.O. recorded the statement of complainant under Section 161 Cr.P.C. vide which complainant stated that accused Vishwanath @ Gajju was one of those three boys who was sitting in the middle and had put weapon on his Copy for the Prosecution Page no. 4 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 left side and had also snatched chain from his neck. Thereafter, SI Gillu Ram took two days PC Remand of accused Vishwanath @ Gajju and during his PC remand, he disclosed that he had committed the offence alongwith accused Nitin and Akshay. Thereafter, I.O. made efforts to search the accused Nitin and Akshay but in vain.
Thereafter, on conclusion of necessary investigation, chargesheet under Section 392/397/34 IPC was prepared against accused Vishwanath @ Gajju and the same was filed in the Court of Ld. Area Magistrate/Ld. M.M. on 28.06.2013
3. After supplying the complete copies to the accused Vishwanath @ Gajju, the concerned Ld. Metropolitan Magistrate committed the case to the Court of sessions complying the provisions under Section 207/209 Cr.P.C., as the offences under Section 397 IPC for which the cognizance was taken, was triable by the Court of Sessions.
4. On 11.10.2013, supplementary chargesheet under Section 392/397/411/34 IPC, qua accused Nitin and Akshay, was filed vide which it was stated that on 21.07.2013 accused Nitin and Akshay had made a disclosure about present case in a case Copy for the Prosecution Page no. 5 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 FIR No. 125/13, under Section 186/353/307/506/34 IPC and 25/27 Arms Act, PS Crime Branch and accordingly SI Gillu Ram got issued their production warrant from the Court of Ld. CMM and arrested them and recorded their disclosure statements separately. Thereafter, SI Gillu Ram got conducted the TIP of both the accused but during TIP proceedings, complainant identified only accused Nitin. Thereafter, SI Gillu Ram took PC remand of both the accused persons and during PC remand, accused Akshay got recovered pendant of Hanuman ji from his house which was taken into possession vide seizure memo. Thereafter, I.O. got conducted the TIP of case property and during TIP, complainant identified the case property.
5. After hearing arguments on the point of charge vide order dated 07.12.2013 charge under Section 392/34 IPC was framed against accused Vishwanath @ Gajju and Nitin Singh, a separate charge under Section 397 IPC was framed against accused Vishwanath @ Gajju and separate charge under Section 411 IPC was framed against accused Akshay @ Tinku to which accused persons pleaded not guilty and claimed trial.
6. For discharging the onus placed on it, prosecution was called upon to adduce evidence to establish its case as per law.
Copy for the Prosecution
Page no. 6 /31 27.04.2015
SC No. 136/15
State Vs. Vishwanath @ Gajju Etc.
FIR No.85/13
PS Dwarka Sector23
Prosecution has examined 15 witnesses in all in support of its case namely : PW1 Shri Vinod Kumar (Complainant) PW2 ASI Nirmala PW3 Ct. Rameshwar PW4 Ct.Sukhram PW5 Dr. Jagminder Singh (Ld. Metropolitan Magistrate) PW6 SI Jitender Kumar PW7 Ct. Mukesh Kumar PW8 Ct. Abhay Singh PW9 Ct. Jagdish PW10 HC Yashpal PW11 SI Rajbir Singh PW12 ASI Satish Kumar PW13 HC Sumer Singh PW14 Ct. Narender Kumar PW15 SI Gillu Ram (Investigating Officer)
7. After conclusion of prosecution evidence, statements of accused persons under Section 313 Cr.P.C. were recorded. On 28.11.2014, additional charge under Section 397/392/34 IPC was framed against accused Akshay @ Tinku and complainant Vinod Kumar was again examined as a prosecution witness.
Copy for the Prosecution
Page no. 7 /31 27.04.2015
SC No. 136/15
State Vs. Vishwanath @ Gajju Etc.
FIR No.85/13
PS Dwarka Sector23
8. Before proceedings further, I would like to discuss the evidence led by the prosecution to prove its case.
9. Complainant Vinod Kumar stepped into the witness box as PW1 and has deposed that on 11.04.2013, he went alone for morning walk at about 6.40 a.m. towards Bijwasan underpass and when he had reached half way at about 7.05 a.m., a black colour Pulsar motorcycle, which was coming from Bijwasan underpass towards Shahabad, passed by him. There were three boys on the motorcycle and after few minutes, it came back and they stopped the motorcycle in front of him. He has further deposed that out of three boys, one boy who was sitting in middle, alighted and pointed pistol/revolver towards him and then the boy, who was sitting behind the boy sitting in the middle, alighted from the motorcycle and that boy was carrying one pitthoo bag, he also pointed pistol/revolver towards him. He has further deposed that one boy pointed the pistol on right side and the other boy on the left side and the boy who was sitting in the middle, snatched the gold chain of about 22 ½ tola, from his neck which was having Hanuman locket attached to it. He has further deposed that thereafter, they took his search and when they found nothing, those two boys sat on the motorcycle and ran away towards Copy for the Prosecution Page no. 8 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 underpass. He has further deposed that the third boy was already on the motorcycle while keeping the motorcycle's ignition on. Thereafter, he made a call at 100 number by taking mobile phone of some passersby and police came at the spot and recorded his statement. He has proved on record his statement as Ex.PW1/A. Complainant has further deposed that on the next day, police brought him to the spot and prepared site plan at his instance. He has further deposed that he had gone Tihar Jail twice for taking part in TIP proceedings of the accused persons and had identified the person who was sitting behind the person sitting in the middle but could not identify the person who was sitting in the middle.
Accused Nitin, Akshay and Vishwanath were present in the Court and complainant identified accused Nitin as a person who was driving the motorcycle, accused Akshay as a person who was sitting in the middle and accused Vishwanath as a person who was sitting in the last. He has further deposed that accused Vishwanth and Akshay had pointed out pistol upon him and accused Akshay had broken the chain.
Complainant has further proved on record the case Copy for the Prosecution Page no. 9 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 property i.e. Hanuman Locket, produced by the MHC(M) in Court, as Ex.P1 to be the same which was robbed by the accused persons alongwith the gold chain.
10. PW2 ASI Nirmala has deposed that on 11.04.2013, she had recorded the FIR of present case on the basis of rukka brought by Ct. Rameshwar. She proved the copy of FIR as Ex.PW2/A and the endorsement made on the rukka as Ex.PW2/B.
11. PW3 Ct. Rameshwar has deposed that on 11.04.2013 on receipt of information about chain snatching, he alongwith SI Gillu reached at the spot where complainant met them and got recorded his statement and I.O. prepared the rukka and he got the case registered.
12. PW4 Ct. Sukhram has deposed that on 30.04.2013 he alongwith I.O./ SI Gillu Ram came to Dwarka Court where I.O. sought permission from the Court for interrogation and formal arrest of accused Vishwanath and I.O. arrested the accused Vishwanath in his presence from Tihar Jail and conducted his personal search and also recorded his disclosure statement. He proved on record the arrest memo Vishwanath as Ex.PW4/A, his personal search memo as Ex.PW4/B and his disclosure statement Copy for the Prosecution Page no. 10 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 as Ex.PW4/C. PW4 has further deposed that on 05.08.2013, after taking permission from the Court, I.O. arrested the accused Nitin and Akshay in his presence and recorded their disclosure statements. He proved on record the arrest memos of accused Nitin and Akshay as Ex.PW4/D and Ex.PW4/E and their disclosure statements as Ex.PW4/F and Ex.PW4/G.
13. PW5 Dr. Jagminder Singh, Ld. Metropolitan Magistrate has deposed that on 08.05.2013, he had conducted the TIP proceedings and complainant Vinod Saini had identified the accused Vishwanath. He has proved on record the TIP proceedings as Ex.PW5/A, application moved by the I.O. for conducting TIP proceedings as Ex.PW5/B and request for supplying the copy of TIP proceedings as Ex.PW5/C. PW5 has further deposed that on 14.08.2013 he had conducted the TIP proceedings qua accused Nitin vide which complainant Vinod Saini had correctly identified the accused Nitin. He proved the TIP proceedings qua accused Nitin as Ex.PW5/D, application moved by the I.O. for conducting TIP proceedings as Ex.PW5/E and request for supplying the copy of Copy for the Prosecution Page no. 11 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 TIP proceedings as Ex.PW5/F. He has further deposed that on the same day i.e. 14.08.2013 he had conducted the TIP proceedings qua accused Akshay vide which complainant Vinod Saini could not identify the accused Akshay. He proved the TIP proceedings qua accused Akshay as Ex.PW5/G and request for supplying the copy of TIP proceedings as Ex.PW5/H. He has further deposed that he had also conducted the TIP proceedings of case property on 29.08.2013 and during TIP proceedings, complainant Vinod Saini had correctly identified the case property. He proved on record the TIP proceedings of the case property as Ex.PW5/I and the application moved by the I.O. for conducting TIP proceedings as Ex.PW5/J.
14. PW6 SI Jitender Kumar has deposed that on 17.04.2013, accused Vishwanath @ Gajju was arrested in a case FIR No. 79/13, under Section 25/54/59 Arms Act, PS Sagarpur and he had made a disclosure statement of his involvement in the present case. He has further deposed that he passed the said information at PS Dwarka Sector21 vide DD No.11A on 18.04.2013 and proved on record the copy of same as Ex.PW6/A. He has further Copy for the Prosecution Page no. 12 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 proved on record the copy of FIR no. 79/13, PS Sagarpur as Ex.PW6/B, disclosure statement of accused Vishwananth @ Gajju in that case as Ex.PW6/C, and memos of his arrest and personal search in that case as Ex.PW6/D and Ex.PW6/E.
15. PW7 Ct. Mukesh Kumar has deposed that on 18.08.2013 he alongwith I.O./SI Gillu Ram and Ct. Abhay went to the house of Akshay i.e. one jhuggi and from in between tin roof and brick, accused Akshay took out one matchbox in which he had kept the Hanuman Locket. He has further deposed that the said locket was sezied by the I.O. and was sealed in a pulanda and was seized vide seizure memo Ex.PW7/A PW7 has further proved on record the case property i.e. Hanuman Locket, produced by the MHC(M) in the Court duly sealed, as Ex.P1.
16. PW8 Ct. Abhay Singh deposed on the same lines as deposed by PW7 Ct. Mukesh Kumar.
17. PW9 Ct. Jagdish has deposed that on 18.08.2013, he alongwith I.O./SI G.R. Meena, Ct. Abhay and Ct. Mukesh had joined the investigation and I.O. had taken PC remand of accused Copy for the Prosecution Page no. 13 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 Akshay and Nitin and had recorded the disclosure statement of accused Nitin in his presence. He proved on record the disclosure statement of accused Nitin as Ex.PW9/A. He has further deposed that thereafter, accused Nitin took them to the place of occurrence and I.O. had prepared the pointing out memo at the instance of accused which he proved on record as Ex.PW9/B.
18. PW10 HC Yashpal has deposed that on 21.07.2013 he was posted as HC SWR Crime Branch, R.K. Puram and on that day at about 1.00 p.m., SI Naresh Sangwan received an information regarding accused Akshay and Nitin, who were involved in number of cases and were supposed to arrive at Monestry, Kashmiri Gate between 6.00 p.m. to 8.00 p.m. and Insp. Yashpal Singh formed two raiding parties out of which one was comprising of himself, SI Naresh Sangwan, HC Kuldeep, HC Sanjeev, HC Ravinder, HC Mahavir and Ct. Praveen and the second team was comprising of SI Vinay Tyagi, HC Jugnoo, HC Sanjay, Ct. Vipin and Ct. Naresh and both the teams headed to Anand Vihar ISBT in a private vehicle. He has further deposed that at about 7.45 p.m., three persons were coming on foot from the side of Shahdara Flyover towards monestry and out of which two boys namely Akshay and Rohit were apprehended and accused Nitin managed to slip away from there. Both the accused persons were brought Copy for the Prosecution Page no. 14 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 to office and they were thoroughly interrogated. PW10 has further deposed that on 22.07.2013, disclosure statements of accused persons were recorded vide which they disclosed that they were involved in a robbery at Dwarka underpass in which they had robbed one person who was walking in the morning at 7.00 a.m. and further that Nitin was driving the motorcycle and Akshay and Vishwanath were the pillion riders. They further disclosed that they had looted one chain from that person on gunpoint. He has further deposed that the said information was passed in the concerned police station.
19. PW11 SI Rajbir Singh has deposed that on 21.07.2013, the investigation of case FIR No. 125/13, PS Crime Branch was assigned to him and he had arrested accused Akshay, Nitin and Rahul in that case and accused Akshay and Nitin had made disclosure statement regarding their involvement in case FIR no. 85/13 and he had informed at PS Dwarka Sector23 about the arrest of accused Akshay and Nitin and had handed over the copies of their disclosure statement to the I.O. of said case.
20. PW12 ASI Satish Kumar has deposed that on 11.04.2013, he had written the DD entry in his handwriting from the roznamcha on the asking of I.O./SI G.R. Meena. He has proved Copy for the Prosecution Page no. 15 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 on record the same as Ex.PW12/A.
21. PW13 HC Sumer Singh and PW14 Ct. Narender Kumar have deposed on the same lines as deposed by PW6 SI Jitender and have identified their signatures on the exhibits proved by PW6 on record. They further deposed that accused Vishwanath had disclosed in his disclosure statement that he alongwith accused Nitin and Akshay had looted a chain from a person on gun point in Shahbad.
22. I.O/SI Gillu Ram stepped into the witness box as PW15 and reiterated the facts of the case as mentioned in the charge sheet and the supplementary chargesheet filed by him. He has deposed that on 11.04.2013 he had received DD No. 9A regarding snatching of chain and on 18.04.2013, an information was received from SI Jitender of PS Sagarpur regarding arrest of accused Vishwanath @ Gajju in a case FIR No. 79/13 and on 29.04.2013, he took permission from the concerned Court for interrogation and formal arrest of accused Vishwanath @ Ganju. On 30.04.2013, he alongwith Ct. Sukhram went to Tihar jail and arrested accused Vishwanath @ Ganju in the present case. He has further deposed that on 01.05.2013, production warrant of the accused Vishwanath @ Ganju was issued and on 02.05.2013, Copy for the Prosecution Page no. 16 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 accused Vishwanath @ Ganju was produced in the concerned Court and an application for conducting TIP was moved in the concerned Court which was fixed for 06.05.2013 and thereafter, on 08.05.2013, during TIP proceedings, complainant identified the accused Vishwanath @ Ganju and on the same day he move an application regarding production warrant of accused. He has further deposed that on 09.05.2013, two days PC remand of accused was taken and on 11.05.2013, accused was produced in the Court and was sent to J.C. Thereafter, he tried to search the coaccused but could not find them and he filed challan in the Court.
PW15 has further deposed that on 23.07.2013, one WT message was received regarding arrest of accused Nitin and Akshay with Crime Branch, R.K. Puram and on 31.07.2013, production warrants of accused Nitin and Akshay were issued from the concerned Court for 03.08.2013 and on the said date, accused persons were not produced in the concerned Court and next date was given. He has further deposed that on 05.08.2013, accused Nitin and Akshay were produced in the concerned Court and he took permission from the concerned Court regarding interrogation and formal arrest of accused persons. He has further deposed that on the same day he moved an application for Copy for the Prosecution Page no. 17 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 conducting TIP of accused persons and on 14.08.2013, during TIP proceedings, accused Nitin was identified by the complainant but accused Akshay was not identified by the complainant. On 17.08.2013, accused Nitin and Akshay were produced in the concerned Court and he was taken on one day PC remand. He has further deposed that on 18.08.2013, one gold locket was recovered from accused Akshay's house and on the same day, both the accused persons were sent to J.C. He has further deposed that on 27.08.2013, he moved an application regarding case property and on 28.08.2013, complainant identified the case property as his gold locket. Thereafter, he prepared the supplementary charge challan and filed the same in Court.
23. After completion of prosecution evidence, statements of accused persons under Section 313 Cr.P.C. were recorded and all the incriminating circumstances were put to the accused persons, to which stand of the accused persons was of general denial and they stated that they been falsely implicated in the present case.
In his statement under Section 313 Cr.P.C., accused Vishwanath @ Gajju further stated that he was apprehended by the police on 11.04.2013 and since then he was kept in police station where he was shown to many persons including Copy for the Prosecution Page no. 18 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 complainant and his photographs were taken and that is why the complainant had identified him. He further stated that he has no concern with the alleged robbery and his signatures were taken on many documents forcibly and that he did not disclose anything about the present case or any other case.
Accused Vishwanath @ Gajju and Nitin led defence evidence in support of their case. By moving application under Section 315 Cr.P.C., accused Vishwanah @ Gajju examined himself as DW1 and Shri Bala Krishan, Record Keeper, Hindustan Times was examined as DW2.
24. DW1 Vishwanath @ Gajju has deposed that he was apprehended by the police in the month of April 2013 from his house for interrogation and was kept for seven days and implicated in many cases showing false recovery in different police station. He has further deposed that nothing has been recovered at his instance or from his possession and that he is innocent and has no concern with any case. He proved on record the copy of disclosure statement of accused Rohit @ Deepak made in case FIR No. 100/13, PS Dwarka South as Ex.DW1/A and copy of seizure memo under Section 102 Cr.P.C. as Ex.DW1/B. He has further proved on record the copy of statement of eyewitness in a case Copy for the Prosecution Page no. 19 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 FIR No. 100/13, PS Dwarka South as Ex.DW1/C and copy of statement of eyewitness in a case FIR No. 111/13, PS Palam Village as Ex.DW1/D.
25. DW2 Shri Bala Krishan has deposed that he has been authorized to depose before the Court and proved on record the Authority Letter as Ex.DW2/A and the summoned record i.e. copy of part of page 3 of newspaper "Hindustan" (Hindi) of dated 24.07.2013 as Ex.DW2/B.
26. I have heard Ld. Addl. P.P. for the State as well as Ld. Defence Counsel and have gone through the entire record and have given my thoughtful consideration to the matter.
27. Ld. Addl. P.P. for the State has submitted that complainant has duly identified all three accused persons in the Court in his evidence as the persons who had robbed him on 11.04.2013 on the point of pistols. He has further submitted that part caseproperty i.e. gold pendant of Hanuman Ji has been duly proved to be recovered from the accused Akshay on his instance. He has further submitted that prosecution has been able to prove the charges levelled against the accused persons beyond reasonable doubts, hence, accused Vishwanath is liable to be Copy for the Prosecution Page no. 20 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 convicted under Section 392/34 IPC and 397 IPC and accused Nitin is liable to be convicted under Section 392/34 IPC and accused Akshay is liable to be convicted under Sections 392/34 IPC and 397, 411 IPC.
28. On the other hand, Ld. Legal Aid Counsel for accused Vishwanath has submitted that prosecution has been failed to prove the charges levelled against the accused Vishwanath. He has further submitted that identification of this accused by the complainant cannot be accepted as complainant has identified this accused on the behest of I.O. and this accused was shown to the complainant before TIP.
Ld. Legal Aid Counsel for accused Nitin and Akshay has submitted on the line of submission made by Ld. Legal Aid Counsel for accused Vishwanath and stated that prosecution has been failed to establish the charges levelled against accused Nitin and Akshay. . He has submitted that after the arrest of accused Nitin and Akshay, an article regarding their arrest alongwith photographs was published in newspaper and on the basis of same and on the behest of I.O., complainant has identified accused Nitin and Akshay in the Court. He has further submitted that accused Akshay could not be identified by the complainant in the TIP. He Copy for the Prosecution Page no. 21 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 has further submitted that there is no independent witness to the recovery shown to be made from accused Akshay regarding gold pendant of Hanuman Ji despite the fact that independent witnesses were present at the time of alleged recovery.
29. Accused persons are facing trial of offences under Section 392/397/411/34 IPC. Section 397 IPC prescribes minimum sentence of seven years. It is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree or assurance is required to convict the accused.
30. In so far as offence of robbery involved in the present case is concerned, prosecution's case completely rests on identification of accused persons by complainant as he is a sole witness of the incident. When there is a sole witness to the incident, his evidence has to be accepted with an amount of caution and after testing it on the touch stone of the evidence tendered by other witnesses or evidence as recorded. No doubt accused can be convicted on evidence after solitary eye witness but same should be done if the evidence tendered by such witness is cogent, reliable and impugned with probabilities and inspires implicit confidence, otherwise, it would be unsafe. Such kind of Copy for the Prosecution Page no. 22 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 solitary witness should be not only reliable but wholly reliable.
31. The question now which needs answer is whether the prosecution has succeeded in establishing the identity of the accused persons as robbers who participated in the crime?
32. By now it is well settled that the question of identification is a primary matter for consideration in a case of robbery or dacoity by unknown persons. Hard and fast rule cannot be laid down that in every case of robbery or dacoity, if there is identification by one witness, that identification must be accepted. Every instance of identification which usually accompany a case of robbery or dacoity has to be judged on the facts of that particular case presented by the prosecution and if after a careful scrutiny, there is slightest hesitation in the mind of the Court that there was possibility of mistaken identification or that the statement of the sole witness was influenced by some other cause, the accused is entitled as a matter of course to the benefit of a reasonable doubt.
33. In the case in hand, complainant has claimed that he had seen all three accused persons as robbed him. He stepped further to identify them in TIP but in TIP he could not identify one Copy for the Prosecution Page no. 23 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 accused person. But he once again identified these all three accused persons in the Court during evidence. Accused persons have taken defence that they were shown to the complainant before TIP. In his cross examination this witness has admitted that SI Gillu Ram used to call him off an on for identifying the accused persons whenever any other accused persons were arrested by him and in this regard he went to police station about 45 times and for the first time he went to police station after three days of the incident for the purpose of identification of culprits. He has further admitted that police kept him calling at police station till the accused persons got arrested and after arrest of accused he was not called again at the police station for the purpose of identification. As per record, accused Vishwanath was arrested on 18.04.2013 and other two accused persons were subsequently arrested on 05.08.2013. In view of admission of complainant/PW1, regarding his frequent visits on the call of police/I.O., it cannot be ruled out that accused persons were not shown to the complainant before TIP. It creates doubts that the accused persons were shown to the complainant before TIP.
PW1, the complainant, has further admitted in cross examination that he had seen the report in the newspaper when the accused persons were arrested by the police but he denied to Copy for the Prosecution Page no. 24 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 notice the photographs of the accused persons which were published in the newspaper. It is very difficult to believe that article about accused persons published in newspaper alongwith photograph was only read by the complainant and photographs of Nitin and Akshay were not seen by him. Complainant has further stated in his cross examination that he had narrated the police about facial description of accused persons and he was taken to PS Kamla Market to get the portrait of assailant prepared and he got prepared two portraits. He has admitted that since his concentration was on two assailants who had alighted from the motorcycle as such he could not give description of the third person for the purposes of portrait. This admission of complainant creates doubt about identification made by complainant as well as prosecution's case as if on the very first day complainant was not having description of third culprit then why and how he had gone to identify the third person. This puts question mark on the reliability of the complainant.
Further I find that portraits of two culprits, got prepared by PW1/Complainant on the day of incident, have not been filed on record. On the police file portrait of only one culprit was found and same was brought on the file of present case. This portrait does not resemble with the face of any accused person. These facts Copy for the Prosecution Page no. 25 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 also create doubt over the identification and involvement of accused persons in the offence committed with complainant.
34. Before proceeding to analyze the case of the prosecution qua recovery of incriminating articles some judicial decision may be worth noting. In Shera Vs. Emperor, AIR (3) 1943 Lah. 5, the Lahore High Court observed as under:
"............... When the evidence of recovery of stolen property is attacked, the Court has to examine the evidence in the light of the following alternative hypothesis: (1) The complainant might have been persuaded by the police to state in the first information report that property which in fact was not stolen had been stolen by accused persons. This assumes a conspiracy between the informant and the police from very start. (2) The police might have obtained property similar to the stolen property from the complainant or some one else and used it for the purpose of fabricating the recoveries. (3) The police might have suppressed some of the stolen property recovered from an accused person and utilized it in inventing a recovery from another accused person. (4) The property might have been recovered from a third party and used by the police in one of the impugned recoveries."
".......... In considering the possibility of the second hypothesis, Copy for the Prosecution Page no. 26 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 regard must necessarily be had to the nature and value of the property recovered. It should be borne in mind that when a person hands over to the police valuable property with a view to enable the police to fabricate a false recovery of this property from someone else, there is always a possibility of the accused being acquitted and the owner of the property being deprived of such property. In the present case the property recovered consists of valuable ornaments of gold and silver and I do not consider that the police procured this property from someone else with the object of inventing false recoveries from innocent person...."
35. In the case in hand gold chain alongwith pendant of Hanuman Ji was robbed from the complainant. As per record, accused Vishwanath was arrested by police of PS Sagarpur on 18.04.2013 in a case FIR No. 79/13, PS Sagarpur and in his disclosure statement he admitted his involvement in the offence of present case and consequently he was formally arrested in present case on 30.04.2013 and on the same date his disclosure statement was recorded. In his disclosure statement, he allegedly stated that he committed the offence involved in the present case alongwith accused Nitin and Akshay and stolen chain was given to accused Nitin.
Copy for the Prosecution
Page no. 27 /31 27.04.2015
SC No. 136/15
State Vs. Vishwanath @ Gajju Etc.
FIR No.85/13
PS Dwarka Sector23
Accused Nitin and Akshay were arrested by the Crime Branch and subsequently they were arrested in the present case on 05.08.2013. On the same day accused Nitin disclosed that he had kept golden chain with pendant on the roof of his house. In his disclosure statement of same date accused Akshay stated that he could get the arms recovered. He has further stated that stolen chain was given to Nitin.
36. The TIP of accused Vishwanath was got conducted on 08.05.2013 in which complainant identified him. TIP of accused Nitin and Akshay was got conducted on 14.08.2013 but complainant could identify only accused Nitin and failed to identify accused Akshay.
After failure of complainant to identify accused Akshay, second disclosure statements of accused Nitin and Akshay were recorded. First disclosure statement as well as subsequent disclosure statement, both contain no date of making of this statement. First disclosure statement of accused Akshay also does not contain any date but second disclosure statement is of dated 18.08.2013. In second disclosure statement accused Nitin stated that he handed over pendant of Hanuman Ji to Akshay and sold Copy for the Prosecution Page no. 28 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 chain to one passers by (Raahgir). Akshay in his second disclosure statement has stated that Nitin handed over pendant of Hanuman Ji to him and due to religious sentiments, he kept it in his house. He has further stated that arms was already recovered by crime branch.
On perusal of all disclosure statements of accused Nitin and Akshay and steps taken by the I.O. for conducting TIP and recovery of stolen articles, I find that I.O. failed to take immediate steps for recovery of entire stolen articles on 05.08.2013 when it was disclosed by accused Nitin to be kept on roof of his house. It appears that only on failure of complainant to identify accused Akshay, pendant of Hanuman Ji has been shown to be recovered from him. It is very difficult to believe that accused Akshay had kept this article in his house due to religious sentiment. There is nothing on record to show that despite the knowledge of the fact that stolen article has been kept by accused Nitin in his house any attempt has been made by I.O. to take Nitin to his house in order to recover stolen article. In absence of any such attempt recording of fresh disclosure statement, creates doubt about the prosecution's case. Recovered item appears to be not of much value and hence, fabrication of false recovery cannot be ruled out. Apart from this nonjoining of public witness to the recovery of Copy for the Prosecution Page no. 29 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 pendant Hanuman Ji from the house of accused Akshay makes the recovery of prosecution's case doubtful. There were so many public persons were present as per the I.O. or other police witnesses but no step has been taken to join any of them as a witness of recovery. Apart from this, condition of recovered case property also creates doubt as this property was called and seen by the Court and find absence of mark and material of its use.
37. There are certain other facts of this case which create doubt in the mind of this Court over the prosecution's case. As per the prosecution's case accused Vishwanath was arrested by the police of PS Sagar Pur and he disclosed on 17.04.2013 about his involvement in a case of robbery committed 67 days prior to 17.04.2013 at the place between underpass and Shahbad Mohammadpur. Accused Vishwanath had nothing stated about the FIR number or Sections but DD no.11A dated 18.04.2013, recorded allegedly on the basis of message received from the staff of PS Sagarpur, contains details of FIR number and Sections of present case. Details of FIR and Section mentioned in this DD by the police staff of PS Sagarpur create doubt about the case of prosecution.
In his cross examination complainant has admitted that Copy for the Prosecution Page no. 30 /31 27.04.2015 SC No. 136/15 State Vs. Vishwanath @ Gajju Etc. FIR No.85/13 PS Dwarka Sector23 he had not stated to the police/I.O. at any point of time or even after the TIP the specific role of accused persons during incident or their identity before this deposition in the Court but I find that complaint Ex.PW1/A, recorded by the I.O., contains the role as well as description of the culprits of offence of robbery which creates doubt over the prosecution's case.
38. In view of above scrutiny of evidences, I find that complainant is not so much reliable to base conviction of accused persons on his sole testimony. Identification of accused persons by complainant as well as recovery of pendant of Hanuman Ji are doubtful. Accused persons are entitled for benefit of doubt.
39. In view of above, it is hold that prosecution has not been able to prove charges, levelled against the accused persons, beyond all reasonable doubts. Accused Vishwanath @ Gajju, Nitin Singh and Akshay @ Tinku are accordingly acquitted.
Announced in the Open Court on 27th Day of April 2015 (Anil Kumar) ASJ04/ Dwarka Courts Delhi/27.04.2015 Copy for the Prosecution Page no. 31 /31 27.04.2015