Delhi District Court
State vs . Sohan Lal Etc. on 20 July, 2013
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 321/07)
Unique ID case No. 02404R0058662007
State Vs. Sohan Lal etc.
FIR No. : 495/05
U/s : 392/397/34 IPC
P.S. : Adarsh Nagar
State Vs. 1. Sohan Lal
S/o Agardi Lal
R/o Village Ushari, P.O Renda,
P.S. Meh Nagar,
Distt. Azamgarh, UP
2. Avinash @ Birbal
S/o Murari Lal
R/o House no. 480,
Village Mukhmel Pur,
PS Alipur, Delhi.
3. Om Singh @ Karan Singh @ Chagnu
S/o Late Sukhbir Singh
R/o Pooja Colony, Azad Enclave,
Near Ram Park, Loni,
Ghaziabad (since P.O.)
S. C No. 321/07 : State vs. Sohan Lal etc. : 1/38
2
Date of institution of case 23.04.2007
Date of Arguments : 20.07.2013
Date of pronouncement of judgment : 20.07.2013
JUDGMENT:
1. The case of the prosecution as briefly stated in the charge sheet is that on 24.09.2005, on receipt of DD no. 31, PP N.S Mandi, PW14 ASI Surender Singh Yadav along with PW4 Ct. Devender reached at the spot i.e. in front of shop no. A/280, N.S. Mandi, Azadpur, Delhi, where PW2 Sh. Girwar Dayal met him and got his statement recorded, wherein he stated that he was working as Paledar at the shop of Commission agent Suresh Kumar and Satyapal Arora and that on 24.09.2005, at about 7.45 pm, he was taking the money from sale of Lemons in a guthi kept in a blue coloured bag, from the shop of his owner, to the office at A1134, N.S. Mandi, Azadpur, Delhi and that at that time, two muneems (accountants) namely Manoj Upadhyay s/o Sh. Vidhya Sagar Upadhyay and Subhash s/o Sh. Chunni Lal were also with him. He further stated that at about 7.50 pm, when he reached the road in front of the shop no. A280, N.S. Mandi, Azadpur, two persons came from the opposite directions on foot and stopped them. One of them, who was having a revolver in his hand, put the said revolver on chest of complainant and told him to hand over the S. C No. 321/07 : State vs. Sohan Lal etc. : 2/38 3 guthi of money, failing which he would fire on him (complainant). Other person accompanying that person showed revolver to Manoj, companion of complainant, from a distance. Complainant further stated that he raised alarm, but both the person ran away from the spot after snatching the guthi from him. He gave description of the person, who had snatched the guthi from him, and further stated that their third accomplice was also standing ready with his scooter at B block chowk. He also stated that there were Rs. 1,60,000/ cash and cheques of Rs. 82,000/ in the said guthi and that he could identify the persons, who had snatched the guthi from him and prayed that necessary legal action be taken against the said accused persons. On the basis of the statement of the complainant, PW14 SI Surender Singh prepared rukka Ex. PW14/B and got the FIR of the present case registered. The PW14 also prepared the site plan Ex. PW14/C at the instance of the complainant and tried to search for the accused persons, but all in vain.
Later on, accused Sohan Lal and Om Parkash were apprehended on 22.10.2006 by PW11 Ct. Pawan Kumar and PW12 HC Surender and they were found in illegal possession of arms and ammunitions regarding, which FIR no. 508/2006 was got registered against them. During his interrogation, accused Sohan Lal made a disclosure statement regarding his involvement in the present case and thereafter, he was arrested in the present case by PW19 Ins. Sanjay Nagpal.
S. C No. 321/07 : State vs. Sohan Lal etc. : 3/38 4 Other two accused persons namely Om Singh @ Karan @ Chhagan and Avinash @ Birbal were also arrested on 04.12.2006 along with their accomplices in case FIR no. 770/06 and pursuant to their disclosure statements regarding their involvement in the present case, accused Om Singh @ Karan @ Chhagan and Avinash @ Birbal were also arrested in the present case. Further, at the instance of accused Om Singh and Avinash, one thella (bag), which was further found containing two small thellas (bags) ; three cheques and one draft ; one receipt book ; on which Shree Guru Nanak Lemon Corporation, A1134, B215, new Subzi Mandi, Azad Pur, Delhi33 was found printed, with receipts from serial no. 1 to 192 already issued till 24.09.2005 i.e. date of incident and remaining receipts in duplicate and blank, were recovered from jhuggie no. 216, CD Park, Jahangir Puri. The said articles were taken into possession by PW19 Ins. Sanjay Nagpal vide seizure memo Ex. PW2/B upon identification by complainant/PW2 Girvar Dayal. After completion of the investigation, the charge sheet was prepared and filed in the court for trial.
2. Upon committal of this case to the court of Sessions, charges for the offence under Sections 392/397/34 IPC was framed against the all the three accused and a separate charge u/s 411 IPC was framed against accused Om Singh and Avinash @ Birbal. However, accused persons pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
S. C No. 321/07 : State vs. Sohan Lal etc. : 4/38 5
3. During the trial of the present case, the accused Om Singh @ Karan Singh stopped appearing in the court and ultimately, he was declared as proclaimed offender vide order dated 27.05.2009.
4. The prosecution has examined nineteen witnesses i.e. PW1 to PW19 in support of its case.
Material public witnesses :
5. The PW1, Manoj Upadhyay, was working as Muneem of Suresh Kumar and Satpal Arora, at shop no. B215, Azadpur Subzi Mandi, Delhi and was present at the spot at the time of incident. He deposed that on 24.09.2005, at about 7.45 pm, he along with Girwar Dayal and Subhash were going to A1134, N.S. Mandi with cash amounting to Rs. 1.6 lacs and cheque amounting to Rs. 80,000/ after selling lemons in the shop. At about 7.15 pm, when they reached near shop no. A280, N.S. Mandi, Azadpur, two persons came from the front side and stopped them. The cash of Rs. 1.6 lacs and cheque of Rs. 80,000/ were kept in a bag (guthi), which was kept in a blue coloured bag and the same was in the hand of Girwar Dayal. The two persons asked Girvar Dayal to hand over the bag and put country made pistol on his chest and S. C No. 321/07 : State vs. Sohan Lal etc. : 5/38 6 threatened to shoot him, if he did not hand over the bag. Another person also pointed a revolver towards PW1. Despite resistance, both of the said persons were able to rob the bag (guthi) containing cash and cheques and thereafter, they both ran away towards B block Chowk, where their associate was present on a twowheeler scooter and they all escaped on the same. The PW1 further deposed that the person who had snatched the bag was aged about 40 years and was having blackish (sanwla) colour, stout body and height 5.7 feet. The PW1 identified accused Avinash @ Birbal as the person, who had pointed out revolver towards him. He further deposed that police was informed and reached the spot and on complaint made by Girwar Dayal, the case was registered. The case property was produced before the court in unsealed condition. The unsealed bag produced before the court contained two guthies, which the witness identified and stated that they were the same guthies, which were containing cash amount and cheques, which were robbed by the accused persons on the day of incident. The cloth bag was exhibited as Ex. P1 and the two guthies were exhibited as Ex. P2 and P3 respectively. The witness also identified one receipt bag/pad and stated that it was in his handwriting and thereafter, same was exhibited as Ex. P4. Four cheques i.e. (i) 539253, dated 24.09.2005 in the sum of Rs. 19,190.08 p in the name of M/s Shri Guru Nanak Lemon Corporation (ii) 538041, dated 24.09.2005 in the sum of Rs. 5,124 in the name of M/s Shri Guru Nanak Lemon S. C No. 321/07 : State vs. Sohan Lal etc. : 6/38 7 Corporation (iii) 824835, dated 28.09.2005 in the sum of Rs. 50,881 in the name of M/s Shri Guru Nanak Lemon Corporation and (iv) 717528 dated 22.09.2005, dated 24.09.2005 in the sum of Rs. 6,000 in the name of M/s Shri Guru Nanak Lemon Corporation were exhibited as Ex. P5 to P8 respectively.
During his crossexamination, PW1 stated that he was working as Muneem in the shop since 2 and 21/2 years prior to the incident and that Girwar Dayal was working in the shop as Paledar and Subhash was working as driver and that they used to take cash and cheque to shop no. B215 daily between 6.00 to 7.00 pm and that the cheque and cash were taken by PW1, who was accompanied by different persons on different date. The PW1 further deposed that on the day of incident, it was raining, but he stated that he had not stated so to the police. The fact that they were carrying two guthies was also not found mentioned in statement Ex. PW1/DA. From further crossexamination of PW1, it was brought out that there was no light at the spot of incident. He also stated that there were shops near the place of occurrence, however, none came to help them, when they raised alarm. He then stated that his statement was recorded at PP N.S. Mandi. The PW1 could not tell the name or make of the scooter, on which, the accused persons had fled away. He also stated that he was informed about the arrest of the accused persons by Girwar Dayal. Though, PW1 had given the details of the cheques alleged to have been robbed by the accused, in his examinationinchief, during his crossexamination, he stated that he did not S. C No. 321/07 : State vs. Sohan Lal etc. : 7/38 8 remember the number of cheques, which were kept in guthies or the persons, in whose favour the said cheques were drawn.
6. The PW2, Girwar Dayal, is the complainant in the present case. He deposed as per his complaint Ex. PW2/A and stated that when he, Manoj Kumar Updhyay and Subhash reached near shop no. A280, N.S. Mandi, Azadpur, two persons came from front side and stopped them and that the bag (guthi) containing the cash of 1.6 lacs and cheque of Rs. 82 thousand was in his hand. He further deposed on the lines of PW1 regarding the manner, in which guthi was stolen from his hand at the point of country made pistol by the accused persons and about accused persons having escaped on twowheeler scooter with their associates. During his further examination, the PW2 stated that the person who had snatched the bag was aged about 40 years and was having blackish (sanwla) colour, stout body and height 5.7 feet. The PW2 identified accused Sohan Lal, as the said person, who had pointed out revolver towards him. He also stated that he had not seen the other person as he was behind him and due to fear. The PW2 further stated that after one year, the accused was apprehended by the police and on being informed, he went to PP N.S Mandi, where police had apprehended two persons and he identified accused Sohan Lal as the person, who had snatched guthi from his hand. During his further examination, the PW2 deposed that he had told the police about other articles lying in the bag, robbed S. C No. 321/07 : State vs. Sohan Lal etc. : 8/38 9 by the accused i.e. Calculator, one diary and receiptslip book/pad and that accused Om Pal (since P.O) had got recovered the said articles and the same were seized vide memo Ex. PW2/B and cash of Rs. 1.6 lacs and calculator was not recovered. He identified the case property Ex. P1 to P8.
During his crossexamination, the PW2 stated that the incident was seen by several persons in the Mandi. He also stated that there was no light in the area at the time of incident. The PW2 did not remember, if he had told the police that there were two guthies in the bag/thella. He further stated that he was not called in the jail to get the accused identified and that he was told the name of the accused Sohan Lal in the PS, when the accused was apprehended. He also stated that the cash in the bag/thella was not put in his presence.
7. The PW5, Subhash, is the third person besides PW1 and PW2, who was present at the spot at the time of incident. He deposed that on the day of incident, it was a Saturday and Manoj and Girwar Dayal were going to their office at A1134, N.S. Mandi from shop no. B215, N.S. Mandi after selling Onion along with the cash and that he was also following them with the ledgers and that at about 7.45 pm, Manoj raised alarm that someone had snatched the bag (guthi) containing currency notes and that PW3 gave a telephonic call to Suresh, who came to the spot and that they chased S. C No. 321/07 : State vs. Sohan Lal etc. : 9/38 10 the assailants, but in vain. Thereafter, they went to PP N.S. Mandi, PS Adarsh Nagar from where, they were told to go to PS Adarsh Nagar and there, police made inquiries from them and kept them detained in the PS for about three days and after intervention of Sh. Suresh Kumar, they were released by the police.
This witness was crossexamined by Ld. Addl. PP as he failed to depose as per the case put forth by the prosecution. During his crossexamination by ld. Addl. PP, PW5 deposed about the incident in the manner, in which, PW1 and PW2 had deposed. However, he denied that he had given description of any of the assailants in his statement to the police. He also denied that he had made a supplementary statement to the police stating that he was unable to identify the assailant due to gap of one year and two months since the incident. The witness was specifically pointed out both the accused persons by Ld. Addl. PP in the court (accused Om Singh is P.O), but he stated that he could not state, if any of them was amongst assailants or not.
8. The PW6 Suresh has been put forth by the prosecution as a witness to the articles i.e. four cheques, cloth bag (Thela), two guthis, the receipt book/paid, which were alleged to have been robbed by the accused persons. He deposed that at that time of incident, he was working as a Commission Agent in NS Mandi and was dealing in the business of lime and that his shop was situated at B215, NS Mandi and his office was situated at A1134, NS Mandi, Azadpur. He further deposed that on S. C No. 321/07 : State vs. Sohan Lal etc. : 10/38 11 24.9.2005, his employees namely PW5 Subhash, PW1 Manoj and PW2 Girwar Dyal were coming to his office from his shop alongwith cash, cheques and ledgers and that he was informed that the said cash amount, cheques etc were robbed. He further stated that later on, police recovered four cheques, which were in favour of his firm, but the witness could not give the details of the names of Banks and amount of the said cheques.
The witness was asked some leading question by ld. Addl. PP regarding the details of cheques and he termed it correct that one of the cheques was for a sum of Rs.5124/ drawn on Vijaya Bank and the same was issued by M/s. Babu Ram & Sons, Cblock, NS Mandi ; the second cheque was for a sum of Rs.19,190/ drawn on Vijaya Bank and the same was issued by M/s. Babu Ram & Sons, Cblock, NS Mandi ; the third cheque was for a sum of Rs.50,881/ drawn on Canara Bank and the same was issued by M/s. GD Fruits ; the fourth cheque was for a sum of Rs.6,000/ drawn on State Bank of Patiala and the same was issued by M/s. JCO Ludhiana. He further stated that all the above said four firms used to purchase lemon from his shop and that he got the payments of the aforesaid cheques stopped after informing the aforesaid firms. The witness also identified the cloth bag (Thela) as Ex. P1, two Guthis as Ex. P2 and Ex. P3, the receipt book/pad as Ex. P4 and the four cheques as Ex. P5 to Ex. P8.
S. C No. 321/07 : State vs. Sohan Lal etc. : 11/38 12 During crossexamination, the PW6 termed it correct that nothing was recovered by the police in his presence.
Investigating officers and material police witnesses :
9. The PW14, SI Surender Singh is the initial Investigating Officer of the case and he deposed that on 24.9.2005, he was posted as ASI at PP NS Mandi of PS Adarsh Nagar and on that day, on receipt of DD No. 31 Ex. PW14/A, PP NS Mandi regarding robbery committed by two boys at B215, Azadpur Sabji Mandi, he along with PW4 Ct. Devinder went to the spot i.e in front of A280 NS Mandi , Azadpur Delhi, where complainant/PW2 Girvar Dayal met him. He further deposed that he recorded statement Ex. PW2/A of PW2, prepared rukka Ex. PW14/B on the basis of statement of PW2 and sent the same to PS through PW4 Ct. Devinder. He further deposed that thereafter, he prepared site plan Ex. PW14/C at the instance of PW2/complainant and that subsequently, on return, PW4 Ct. Devinder handed over the carbon copy of FIR Ex. PW3/A and rukka in original to him. He further stated that accused persons could be traced/arrested despite their repeated searches and that on 11.10.2005, the investigation of the present case was assigned to SI Mahesh Kumar Incharge of PP, NS Mandi, Azadpur by the SHO and he handed over the case file to SI Mahesh Kumar.
S. C No. 321/07 : State vs. Sohan Lal etc. : 12/38 13 The PW14 further deposed that on 04.12.2006, after registration of the case FIR No. 770/06, u/s 399/402/186/353/34 IPC at PS Adarsh Nagar, the investigation of the said case was assigned to him and he went to the spot i.e NS Mandi Azadpur and on reaching the spot, he met PW19 SI Sanjay Nagpal, who handed over four accused persons namely Sunil, Avinash, Om Singh & Ram Rattan alongwith four sealed parcels to him and that he arrested all the above said four accused persons in the said case and that during the course of interrogation, accused Avinash and Om Singh made disclosure statements, Ex. PW14/D and Ex. PW14/E respectively, regarding their involvement in the present case. He further stated that thereafter, he informed PW19 SI Sanjay Nagpal regarding the disclosure statements of the accused persons and he (PW19 SI Sanjay Nagpal) arrested the accused persons in the present case at PP Azadpur Mandi and that he (PW14) also handed over the photocopies of disclosure statements of accused Avinash and Om Singh to PW19 SI Sanjay Nagpal. This witness identified the accused Avinash in the court.
During his crossexamination, PW14 SI Surender Singh stated that on receipt of the DD no. 31, they went to the spot on a motorcycle and that at the time of leaving the PP N.S Mandi, he was having IO bag and that he did not make any entry regarding carrying the IO bag, since the same was not issued by the MHCM and that the same was his own bag. The witness termed it correct that there are many shops near the spot and that it was a crowded area. The witness showed his lack of knowledge S. C No. 321/07 : State vs. Sohan Lal etc. : 13/38 14 whether or not accused Avinash had been acquitted in case FIR No. 770/06 u/s 399/402/186/353/307/34 IPC and 25 Arms Act.
10. The PW4, Ct. Devinder, joined the investigation of the present case with PW14 ASI Surender Singh and deposed that on receipt of DD no. 31 PP, he along with PW14 ASI Surender reached in front of A290, N.S. Mandi, where they met complainant/PW2 Girdhar Dayal and that PW14, after recording the statement of PW2, prepared rukka and same was handed over to him (PW4) for registration of the case FIR and that accordingly, he went to PS, got the present case registered and on return to the spot, handed over the copy of FIR and rukka to the IO/PW14 SI Surender Singh.
11. The PW19, Ins. Sanjay Nagpal, is the main IO of the case and he deposed about the investigations carried by him and about the various documents prepared by him during the course of investigation. He stated that on 08.11.2006, on perusal of the case file, he found that production warrants of accused Sohan Lal had already been issued for 08.11.2006 and that accordingly, he went to the court of Sh. Prashant Kumar, Ld. M.M., where accused Sohan Lal was produced on production warrants, and that after seeking the permission from the court, he formally arrested accused Sohan Lal vide arrest memo Ex. PW7/A and interrogated him and that during the S. C No. 321/07 : State vs. Sohan Lal etc. : 14/38 15 course of interrogation, accused Sohan Lal made a disclosure statement Ex. PW7/B. He further stated that he obtained three days P/C remand of accused Sohan Lal from the concerned Court and thereafter, on the same day i.e. 08.11.2006, the accused Sohan Lal led the police party to different places in search of his coaccused namely Chhagan and Birbal, but they could not arrested/traced out. He further deposed that on 09.11.2006, accused Sohan Lal was again interrogated and during that course, he made another disclosure statement Ex. PW8/A and that they again searched for the other coaccused persons, but in vain and that on 10.11.2006, accused Sohan Lal was remanded to J.C. He further stated that on 04.12.2006, ASI Surender of PS Adarsh Nagar had arrested the accused persons Om Singh @ Karan @ Chhagan and Avinash @ Birbal, along with other accused persons, in case FIR no. 770/06 and they made their disclosure statements in the above mentioned case FIR regarding their involvement in the present case and that on 05.12.2006, ASI Surender handed over the copy of disclosure statement of accused Om Singh @ Karan @ Chhagan and Avinash @ Birbal to him and that thereafter, both the accused persons Om Singh and Avinash were arrested by him in the present case vide arrest memos Ex. PW19/A (of Om Singh) and Ex. PW19/B (of Avinash). He further stated that thereafter, both the accused persons led the police party to the place of occurrence i.e. in front of shop no. A280, New Subzi Mandi, Azadpur, Delhi and pointed out the place on the road, S. C No. 321/07 : State vs. Sohan Lal etc. : 15/38 16 where they had committed robbery, vide pointing out memo Ex. PW13/A. He further stated that both the accused persons had disclosed in their disclosure statements in case FIR No. 770/06, PS Adarsh Nagar that the weapon and scooter, which were used in the present case, were also already recovered in that case. (case FIR no. 770/06) The PW19 SI Sanjay Nagpal further stated that on 12.12.2006, accused Om Singh and Avinash were remanded to one day PC remand and during the police remand, both the accused persons led the police party to Jhuggie no. 216, CD park, Jahangir Puri and that the complainant Girvar Dayal also accompanied them from PP to the above said jhuggie, which was found locked, but both the accused persons pushed open the door of the jhuggie and that thereafter, both the accused persons got recovered one thella (bag), which was further found containing two small thellas (bags) ; three cheques and one draft ; and one receipt book, on which Shree Guru Nanak Lemon Corporation, A1134, B215, new Subzi Mandi, Azad Pur, Delhi33 was printed with issued receipts from serial no. 1 to 192 (till 24.09.2005 i.e. date of incident) and remaining duplicate and blank receipts and that the complainant/PW2 Girvar Dayal identified the above said articles, which were got recovered by the accused persons. He further stated that he took the above said articles into possession vide seizure memo Ex. PW2/B and that after completion of investigation, the charge sheet was filed. The witness identified the accused persons as well as said articles recovered at the instance of the accused persons as Ex. P1 to Ex. P8.
S. C No. 321/07 : State vs. Sohan Lal etc. : 16/38 17 During crossexamination, PW19 stated that he was not aware as to who had received the intimation regarding arrest of accused Sohan Lal and deposed that the investigation of the case had not been handed over to him by then. The witness termed it correct that he did not record statement of concerned official, who had received the said intimation. He further stated that he did not get the TIP of the accused conducted from the complainant and further volunteered to state that when he received the investigation of the case, he found that the previous IO had already recorded a statement of complainant, wherein it was stated that since, the incident was more than one year old, the complainant was not in position to identify the accused persons. He further stated that he did not inquire in details as to whom, the jhuggie, from where the recovery was effected, belonged and that he was told that accused persons used to reside there along with 3/4 more persons. He further stated that the accused Sohan Lal was interrogated on 08.11.2006 in corridor outside the Court room.
During further crossexamination, PW19 stated that no public person was joined in investigations during the search for the coaccused persons of accused Sohan Lal as whereabouts of coaccused persons could not be traced. He also stated that he had recorded another disclosure statement of accused Sohan Lal on 09.11.2006 as his coaccused could not be arrested on his earlier disclosure statement made on 08.11.2006. The witness termed it correct that Parcha 12 was issued in respect of the addresses of accused persons mentioned in column No.3 of charge S. C No. 321/07 : State vs. Sohan Lal etc. : 17/38 18 sheet. He further termed it correct that FIR No.770/06 was pertaining to PS Adarsh Nagar itself and that he was a witness in investigations of case FIR No.770/06 wherein accused Om Singh @ Karan @ Chhagan and Avinash @ Birbal were arrested. The witness showed his lack of knowledge about final outcome of the trial of case FIR No. 770/06 and stated that he could not say if accused Om Singh @ Karan @ Chhagan and Avinash @ Birbal had been acquitted by concerned Court in said case FIR.
During further crossexamination, PW19 stated that on 12.12.2006, from Court, accused Om Singh and Avinash were taken to Police Post at New Sabzi Mandi and thereafter they led Police Party to Jhuggi No.216, CD Park, Jahangir Puri and that he had made departure entry at Police Station before leaving Police Post for Jhuggi No.216. The witness again correct himself by saying that no separate departure entry was made at that time and that he had made an entry at PP in the morning before leaving for investigations, but the witness could not tell the number of said DD entry. The witness further stated that from Police Post, they had gone in a hired Maruti Van and that there were a total of 10 persons, including him, three accused, three other Police persons, one van driver and two public persons. The witness could not tell the number of the said Maruti Van or the name of the driver. He termed it correct that Jhuggi No.216 was situated in a thickly populated area and that there were jhuggis adjacent to and around jhuggi No.216 and that there was lock on the door of jhuggi No.216 and that the key to the lock was not with the accused persons. He further S. C No. 321/07 : State vs. Sohan Lal etc. : 18/38 19 stated that inside the Jhuggi No.216, he found some utensils, some mattresses and bed sheets, some wearing clothes, and the recovered articles and that he did not get the jhuggi No.216 photographed before entering the same or at the time of recovery of articles from there and that he did not collect any documentary proof regarding ownership of jhuggi No.216 and that he did not inquire from the neighbourers as to who was residing in jhuggi No.216. He further stated that he had not joined any public person from the locality in the recovery proceedings. He volunteered to state that since complainant was with them it was not deemed necessary.
12. The PW16 Ct. Satyawan Rathi also joined the investigations of the present case with PW19 SI Sanjay Nagpal on 08.11.2006 and he deposed that on that day, accused Sohan Lal, who was on police remand, was interrogated by PW19 SI Sanjay Nagpal and his disclosure statement Ex. PW8/A was recorded. He further stated that accused led them to many places at Azadpur Mandi in search of his coassociates namely Birbal and Chhagun, but they could not be apprehended on that day.
13. The PW8 ASI Paramjit Singh also joined the investigation with PW19 SI Sanjay Nagpal on 09.11.2006 and deposed that on that day accused Sohal Lal was interrogated and his disclosure statement Ex. PW8/A was recorded and that thereafter, accused led them to different places in search of coaccused Birbal and S. C No. 321/07 : State vs. Sohan Lal etc. : 19/38 20 Chhagan, but they could not be found.
During crossexamination, the PW8 showed his lack of knowledge about the DD number vide which accused was taken out from lockup, about the name of the driver and number of the TSR by which accused was taken to different places in search of his coaccused or about the fare paid to the driver of the TSR or about the DD number vide which, they made their arrival in PS after completing the investigation.
14. The PW13, HC Sri Bhagwan deposed that on 04.12.2006, four accused persons namely Avinash , Om Singh, Ram Rattan & Sunil were arrested in case FIR No. 770/06 u/s399/402/186/353/307/34 IPC, and that during interrogation by ASI Surender, accused Avinash and Om Singh (since P.O.) disclosed about their involvement in the present case by saying that they had robbed the cash amount of Rs. 1,60,000/ from one person who deals in lemons and that thereafter both the accused persons Avinash and Om Singh as well as their disclosure statements were handed over to PW19 SI Sanjay Nagpal. He further stated that thereafter the accused persons led them i.e himself, SI Sanjay Nagpal and Ct. Satinder to the place of occurrence i.e in front of Shop No. A280 NS Mandi Azadpur, Delhi and pointed out the place of occurrence, vide pointing out memo Ex. PW13/A S. C No. 321/07 : State vs. Sohan Lal etc. : 20/38 21
15. The PW15 HC Rajpal had also joined the investigations of the present case with IO PW19 SI Sanjay Nagpal on 12.12.2006 and deposed that on that day, accused Om Singh @ Karan Singh @ Chhagan (since P.O), Avinash @ Birbal and one another accused Ram Rattan, who was involved in case FIR no. 701/2006, lead the police party including complainant/PW2 Girwar Dayal and Manish Kumar (complainant in case FIR no. 701/2006) to CD Block Park, Jahangir Puri, where accused Om Singh @ Karan @ Chhagan and Anivash @ Birbal pointed out towards jhuggie no. 216, ground floor, while saying that they had disbursed the cash amount amongst them, spent it and that they had kept the other robbed articles in the said jhuggie. He further deposed that thereafter, one bag of light blue colour containing two small clothes bags of navy blue colour, four bank cheques, one receipt book (having receipts 1 to 400 out of which, receipts from 1 to 192 were already issued), on which SLC Shri Guru Nanak Lemon Corporation A1134, B215, New Subzi Mandi, Azadpur, Delhi was found printed, were got recovered by the accused Om Singh @ Karan @ Chhagan and Anivash @ Birbal from the said jhuggie and that all these articles were identified by PW2 as that belonging to him and that said articles were taken into possession by the IO vide seizure memo Ex. PW2/B. The witness also identified the accused Avinash and the said recovered articles as Ex. P1 to P8.
S. C No. 321/07 : State vs. Sohan Lal etc. : 21/38 22
16. The PW7 Ct. Moeez Ahmad, who was working as Naib Court in the concerned court of PS Adarsh Nagar, deposed that on 8.11.2006, PW19 SI Sanjay Nagpal came in the court on the production warrants of accused Sohan Lal and that IO moved an application for interrogation of accused Sohan Lal and that after obtaining the permission from the Ld. MM, accused Sohan Lal was interrogated and arrested vide memo Ex. PW7/A and that accused voluntarily made his disclosure statement Ex. PW7/B. He further stated that thereafter, accused was produced before the concerned court and three days PC remand was taken by the IO and custody of accused was handed over to him. He further stated that thereafter, he along with other police officials went in search of coaccused in the area of Subzimandi Azadpur but his associate could not be found.
During crossexamination, the PW7 stated that the disclosure statement of accused Sohan Lal Ex. PW7/B was recorded by the IO outside the court room and that no public person was cited as witness on the disclosure statement Ex. PW7/B. The witness termed it correct that an arrival entry is recorded in the roznamacha whenever, police officials arrive in the PS.
17. The PW12, HC Surender, deposed that on 22.10.2006, he alongwith Ct. Sanjay and PW11 Ct. Pawan were on patrolling duty and at about 5:00 P.M., when they were present at bus stop on ring road near ISBT, Kashmire Gate, they received a S. C No. 321/07 : State vs. Sohan Lal etc. : 22/38 23 secret information, through secret informer, that two persons who used to rob people would come at Nigam Bodh Ghat. He further stated that on receipt of the said information, they went there alongwith secret informer and that 45 passersby were also asked by them to join the raiding party but none agreed and that thereafter, they laid a trap there. He further stated that at about 5:15 P.M., two persons came from the side of ISBT on foot and that they both were apprehended at the instance of secret informer and that during formal search of accused Sohan, one country made pistol and two live cartridges were recovered from right side pocket of his wearing pants. He further stated that on giving of information to Incharge of Crime Branch, PW17 HC Ragender and HC Rajinder came there and after recording of their statements, FIR No. 508/2006 u/s 25/54/59 Arms Act of PS Kashmeri Gate was got registered. He further stated that accused Sohan Lal was arrested in the above said case and during the course of interrogation, he made disclosure statement Ex. PW11/A regarding his involvement in the present case. He then stated that PW17 HC Ragender had also prepared the sketch of countrymade pistol and live cartridges, sealed the same in a cloth parcel with the seal of KP and took them into possession. He further stated that other person, who revealed his name as Om Prakash, was also apprehended by Ct. Sanjay and that from his formal search one buttondar knife was recovered and that HC Rajinder had conducted investigation regarding the recovery of buttondar knife from him separately.
S. C No. 321/07 : State vs. Sohan Lal etc. : 23/38 24 During crossexamination, the PW12 stated that they left the office of Crime Branch at about 3.00 pm by bus and that he had not made the departure entry in his own hand
18. The PW17 ASI Ragender, deposed that on 22.10.2006, PW11 Ct. Pawan and PW12 Ct. Surender apprehended accused Sohan and that one countrymade pistol and two live cartridges were recovered from his possession and that in this regard, case FIR No. 508/06 u/s 25 of Arms Act was registered at PS Kashmere Gate. He further stated that during interrogation, accused Sohan Lal made disclosure statement about this case and this fact was informed by him to PS Adarsh Nagar vide DD No. 21B Mark PW17/B on 23.10.2006. He further deposed about the arrest of Sohan Lal in case FIR no. 508/06 u/s 25 of Arms Act, PS Kashmere Gate and proved the photocopy of FIR No. 508/06 as Ex.PW18/A. During crossexamination, PW17 termed it correct that accused Sohan Lal was not apprehended by him and stated that he had received the information about the apprehension of accused Sohan Lal by PW11 Ct. Pawan and PW12 Ct. Surender, verbally from Inspector Incharge of Special Team at 5.25 pm on 22.10.2006, in his office of Special Team, at Prashant Vihar, Delhi. He further stated that after five minutes of receiving the information, he along with HC Rajender left the office in his own car, for the spot after making departure entry in Roznamcha Register. The S. C No. 321/07 : State vs. Sohan Lal etc. : 24/38 25 witness showed his lack of knowledge about the number of the said departure entry. He further termed it correct that the place of arrest of accused was a thorough way and that people were coming and going from there, however the witness showed his lack of awareness, if the IO of the case had asked the said passerby to join investigations or not. He further stated that when he recorded disclosure statement Ex. PW11/A of accused Sohan Lal, he had verbally asked passerby to join investigations in the case FIR No. 508/06, but none agreed.
19. The PW11, Ct. Pawan Kumar remained with PW12 HC Surender and PW17 ASI Ragender during the investigations of the present case on 22.10.2006 and he deposed almost on the same line as of PW12 and PW17 about apprehension of accused Sohan Lal and further investigations carried by PW17. Formal police witnesses
20. The PW3 HC Dharam Pal Singh was working as a Duty Officer at PS Adarsh Nagar on 24.09.2005 from 5.00 pm to 1.00 am and he proved the copy of the FIR no. 495/05 as Ex. PW3/A and his endorsement on the rukka as Ex. PW3/B.
21. The PW9 ASI Jagdish Chander was also working as a Duty Officer at PS S. C No. 321/07 : State vs. Sohan Lal etc. : 25/38 26 Adarsh Nagar on 22.10.2006 from 5.00 pm to 1.00 am and he proved the carbon copy of the FIR no. 508/06 as Ex. PW9/A.
22. The PW10, ASI Attar Singh deposed that on 01.11.2006, on receipt of the present case file from the SHO, he moved an application, carbon copy of which was proved as Ex. PW10/A, for issuance of Production warrants of accused Sohan Lal, on the directions of the SHO, and also informed the complainant/PW2 Girver Dayal about the same and asked him that he had to go to jail to identify the accused Sohan Lal, but complainant refused to participate or identify the accused in the jail due to lapse of time. He further stated that he had also requested the other prosecution witnesses to join the judicial TIP for identification of accused, but they also refused.
23. The PW18 Sh. Gous Mohammad, the then Ahlmad in the court of Sh. Sanjay Bansal, the then ACMM (North), Tis Hazari Courts, Delhi, produced the case file pertaining FIR No. 508/2006, PS Kashmeri Gate, titled as "State Vs. Om Prakash @ Prakash & others" and proved the photocopy of disclosure statement of accused Sohan Lal as Ex. PW11/A and photocopy of FIR No. 508/2006, PS Kashmeri Gate, as Ex. PW18/A.
24. After closing of prosecution evidence, statements of accused persons Sohan Lal S. C No. 321/07 : State vs. Sohan Lal etc. : 26/38 27 and Avinash @ Birbal were recorded u/s 313 Cr.P.C, wherein they denied the allegations of the prosecution and stated that they are innocent and had been falsely implicated in the case. Accused Sohan Lal further stated that he had come to drop his brother at Sultanpur Bus Stand, where some police officials were standing and that they falsely implicated him in a case FIR no. 508/2006 u/s 25/54/59 Arms Act, by planting a knife upon him and that during custody, his signatures were obtained forcibly on some blank papers and some printed performs and that later on, he was further implicated in the present case only on the basis of false disclosure statement, which was never made by him. Accused Avinash @ Birbal stated that the police officials had falsely implicated him in a case FIR no. 770/2006 u/s 399/402 IPC and that during custody in the said case, his signatures were obtained forcibly on some blank papers and some printed performs and later on, he was further implicated in the present case only on the basis of false disclosure statement, which was never made by him and that he had already been acquitted in the case FIR no. 770/06. Both the accused wished to lead evidence in their defence, but closed their defence evidence after tendering the certified copy of the judgment in case titled as "State vs. Avinash @ Birbal etc.", FIR no. 770/06, PS Adarsh Nagar as Ex. P1.
25. Arguments have been addressed by learned defence counsel for the accused persons as well as learned Additional PP for the State.
S. C No. 321/07 : State vs. Sohan Lal etc. : 27/38 28
26. Learned Additional PP has contended that in view of the testimony of PW1 Manoj Upadhiya, PW2 Girwar Dayal and other police officials in whose presence, the recovery of looted articles were got effected, prosecution has succeeded in proving that all the accused persons had committed the offence and robbed money potli (gutthi) containing Rs. 1,60,000/ and other articles from complainant on the point of revolver. She has further submitted that though, there are some minor omissions and contradictions in the testimonies of the witnesses, but same does not make testimony of material witnesses unreliable and as such, prosecution has successfully proved the guilt of the accused persons beyond reasonable doubt.
27. Learned defence counsel for the accused persons has contended that accused persons are innocent and have been falsely implicated in the case. He has further contended that both the material witnesses i.e. PW1 and 2 examined by the prosecution are interested witnesses and that their testimonies cannot be believed. The fact that PW5 Subhash failed to support the prosecution case and the accused were identified for the first time in the court by PW1 andf PW2 has also been pressed for as grounds for acquittal. He further stated that recovery of alleged articles is also doubtful as the investigating officer failed to join any independent witness in recovery proceedings, though as per the version of police witnesses, recovery was effected from S. C No. 321/07 : State vs. Sohan Lal etc. : 28/38 29 a thickly populated area and public persons were also present. Ld. Defence counsel has also pointed out towards various contradictions in the statements of the police witnesses, to contend that said contradictions are fatal for the prosecution case and in view of the said contradictions, the prosecution has completely failed to prove its case against the accused persons and it is prayed that both the accused be acquitted for the charged offence.
28. I have carefully considered the submissions made by Ld. Addl. PP for State and Ld. Defence counsel for the accused persons and have carefully gone through the record of the case. I have also perused the evidence, adduced on behalf of the prosecution in support of its case.
29. In the present case, accused Sohan Lal, Om Singh @ Karan Singh (since P.O) and Avinash @ Birbal are alleged to have acted in furtherance of their common intention and committed robbery and used a deadly weapon i.e. country made revolver in commission of the said robbery. Further the accused Om Singh @ Karan Singh (since P.O) and Avinash @ Birbal are also alleged to have dishonestly retained the looted articles, knowing or having reason to believe that the same to be stolen.
S. C No. 321/07 : State vs. Sohan Lal etc. : 29/38 30
30. Section 390 of IPC, which defines "Robbery" is as under : "In all robbery there is either theft or extortion.
When theft is robbery : Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes of attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery - Extortion is "robbery" if the offender, at the time of committed the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, or instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted."
31. Further, Section 392 of IPC, which prescribes "punishment for robbery' is as under : "Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be S. C No. 321/07 : State vs. Sohan Lal etc. : 30/38 31 liable to be fine ; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years."
32. Further Section 397 IPC deals with aggravated form of robbery, when the aggressor/accused attempts to cause death or grievous hurt and it reads as under : 397 Robbery, or dacoity, with attempt to cause death or grievous hurt - If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
33. Section 411 IPC, which deals in "punishment for receiving stolen property"
and it reads as under : "Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both."
S. C No. 321/07 : State vs. Sohan Lal etc. : 31/38 32
34. In the present case, accused Sohan Lal and Avinash @ Birbal are alleged to have acted in furtherance of their common intention with their coaccused Om Singh @ Karan Singh and robbed Girwar Dayal of Guthi (bag) containing Rs. 1.6 lacs. They are further alleged to have used deadly weapon namely country made revolver at the time of commission of offence. It is also alleged that on 12.12.2006, accused Avinash @ Birbal along with coaccused Om Singh @ Karan Singh (since P.O) got recovered money potli, receipt and cheques as detailed in recovery memo mark A which they had retained dishonestly, knowing or having reason to believe that the same was a stolen property.
35. In the instant case, the incident is stated to have taken place on 24.09.2005. Accused Sohan Lal was the first accused to be arrested in the case and he was arrested by Special Team of crime branch on 22.10.2006, pursuant to which, case FIR no. 508/06 u/s 25/54/59 Arms Act was registered against him at PS Kashmire Gate. It is claimed that during the course of interrogation, accused Sohan Lal made a disclosure statement Ex. PW11/A, wherein he admitted having committed offence in the present case. The accused Sohan Lal was arrested in the present case by IO PW19 Ins. Sanjay Nagpal on 08.11.2006 and a separate disclosure statement Ex. PW7/B was recorded. No recovery has been effected from the accused Sohan Lal pursuant to disclosure statements Ex. PW11/A and Ex. PW7/A. Further, no judicial TIP of this S. C No. 321/07 : State vs. Sohan Lal etc. : 32/38 33 accused was got conducted by the IO of the present case after his arrest in the case on 08.11.2006.
36. The accused Avinash @ Birbal and Om Singh @ Karan Singh are stated to have been arrested on 04.12.2006 by officials of PS Adarsh Nagar in case FIR no. 770/06, u/s 399/402/186/353/307 IPC along with two other coaccused. It is alleged that during the course of interrogation, both accused Avinash and Om Singh disclosed about their involvement in robbery in the present case vide disclosure statements mark X and Mark B respectively. Pursuant to their arrest, the accused are stated to have pointed out the place of incident vide pointing memo Ex. PW13/A. Further, accused Om Singh @ Karan and Avinash @ Birbal are stated to have led the police party to Jhugee no. 216, ground floor and got recovered one cloth bag of light blue colour, which was found to contain two small cloth bags of navy blue colour, four cheques and one receipt book, on which SLC Shree Guru Nanak Lemon Corporation, A1134, B215, New Subzi Mandi Azad Pur was printed. At the time of recovery, complainant Girwar Dayal i.e. PW2 is also stated to be present. It is pertinent to note that accused Girwar Dayal has specifically stated that during his deposition in the court that he could identify only the assailant, who had pointed revolver at him and thereafter, identified accused Sohan Lal and he could not identify the other accused, who according to PW2, was behind him. He is also silent regarding the identification S. C No. 321/07 : State vs. Sohan Lal etc. : 33/38 34 of the third coaccused, on whose scooter, the two assailants had run away. It is thus, evident that PW2 had not identified either of the two accused namely Avinash and Om Singh, consequent upon their arrest even at the time of recovery proceedings dated 12.12.2006 conducted at instance of said two accused persons. He only identified the case property i.e. two small bags of navy blue colour, one receipt book and four cheques i.e. Ex. P1 to P8. There is however, discrepancies in the articles contained in the bag, which PW2 was carrying, in the statements of PW2 as recorded in the complaint Ex. PW2/A, and his deposition in the court and subsequent statement u/s 161 Cr.P.C recorded on 12.12.2006. The PW2 does not mention anything about a receipt book or a diary or a calculator in the complaint Ex. PW2/A, whereas in his deposition as PW2 he stated that he had told the police regarding the other articles, which were lying in the bag, which were robbed by the accused i.e. Calculator, one diary and receipt slip book/pad and that the same were seized vide memo Ex.PW2/B. He then clarified that cash amount of Rs. 1.6 lacs and the calculator had not been recovered. There is no statement u/s 161 Cr.P.C on record, wherein PW2 Girwar is stated to have given further details about the articles contained in the bag, he was robbed off. Rather, it is seen that his statement u/s 161 Cr.P.C was recorded by the IO only on 12.12.2006 after alleged recovery of some articles at instance of accused Avinash and Om Singh. There is further discrepancy brought out from testimony of IO Ins. Sanjay Nagpal, who was examined as PW19, S. C No. 321/07 : State vs. Sohan Lal etc. : 34/38 35 who mentioned about recovery of three cheques and one draft instead of four cheques as stated by PW2 and other witnesses.
37. Further, PW2 clearly stated during his crossexamination recorded on 06.08.2009, that cash in the bag was not put in his presence. The PW6 Suresh, the employer has also remained silent as to how he ascertained the quantum of money and other articles contained in the thella. It is indeed surprising that the PW Suresh, owner /employer of PW2 Girwar Dayal, had no clue about the articles/money his employees were carrying on the day of incident. This is evident from the fact that he did not give any detailed statement/complaint himself mentioning articles contained in robbed guthi and his only statement u/s 161 Cr.P.C, that was recorded in the case was recorded on 08.01.07, when the entire recovery/investigations had been completed. From the testimony of PW1 Manoj Upadhiya, PW2 Girwal Dayal, PW5 Subhash and PW6 Suresh, it is apparent that none of them had actually kept the articles in robbed guthi and it appears that list of articles alleged to have been robbed was based more on guess work. The case property was apparently not sealed after being seized nor has the prosecution established that the place of recovery i.e. Jhuggie no. 216, CD Park, Jahangir Puri was in exclusive possession or was owned by either the accused Avinash or Om Singh, thus, in these circumstances, question of tampering with the case property cannot be ruled out.
S. C No. 321/07 : State vs. Sohan Lal etc. : 35/38 36
38. Further, both PW1 and PW2 have stated that there was no light at the place of incident. The PW1 has gone on to state that it was raining at the time of incident. The PW5 Subhash, who was following them, did not see anything and came to know about the incident, when PW1 Manoj raised alarm that someone had snatched the guthi containing the currency notes, as is evident from his testimony. Considering that the area, in which the incident had allegedly taken place, was a crowded area, and there was no light at the time of incident, there is remote possibility that PW1 and PW2 could have seen accused Avinash and Sohan Lal respectively for sufficiently long duration of time to have registered their identifying features.
39. Coming to the alleged recovery of country made revolver and knife at the instance of accused Sohan Lal and Avinash @ Birbal, since the said revolver and knife in question were neither shown to the witnesses i.e. PW1 Manoj Upadhiya and PW2 Girwal Dayal, nor have they given any description of said weapons in their statements made before the court, it cannot be concluded that the recovered revolver and knife were used in commission of offence in the present case.
40. Having this opinion, I am fortified by the judgment titled as " Adesh Kumar and etc. Vs. The State" (reported as 1986 CRL.L.J. 233), it has been laid down S. C No. 321/07 : State vs. Sohan Lal etc. : 36/38 37 by the Hon'ble High Court of Delhi that: " The weapon with which Jagdish appellant inflicted injury on the person of Dharam Singh PW was not recovered.
Dharam Singh did not state anything in his statement as PW5 as to what kind of knife was that which was used by Jagdish appellant, nor about the size of its blade etc. Under the circumstances it could not be held as proved on the record that the weapon used by Jagdish appellant in the commission of the robbery was a deadly 'weapon'. The trial Court was thus in error in convicting the appellant under S. 397 IPC."
41. Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the prosecution has failed to prove the guilt of the accused Sohan Lal and Avinash @ Birbal on record, beyond the reasonable doubts. Accordingly, I acquit accused persons Sohan Lal and Avinash @ Birbal of the charged offences, giving them the benefit of doubt.
S. C No. 321/07 : State vs. Sohan Lal etc. : 37/38 38 File be consigned to the record room and same may be revived/resummoned as and when coaccused - Om Singh @ Karan Singh ( since P.O.) is arrested (Announced in the open Court ) (Illa Rawat) (Today on 20.07.2013) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi S. C No. 321/07 : State vs. Sohan Lal etc. : 38/38