Delhi District Court
State vs . Devender Etc. on 21 April, 2012
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
SC No.62/01/11
FIR No.196/10
U/s 392/397/411/34 IPC
PS Chhawla
State
Vs.
1. Devender S/o Sh Umed Singh
2. Kailash Chand @ Kala S/o Sh Brahm Prakash
3. Sunil Kumar @ Bittoo S/o Mehar Singh
.......... Accused
Challan filed on 06.07.2011
Reserved for order on :10.04.2012
Judgment delivered on : 21.04.2012
JUDGMENT
Briefly stated the facts of the prosecution case are that on 24.11.2010 on receipt of DD no.21A copy of which is Ex.PW9/A, SI Sandep Kumar alongwith Ct. Narender reached at Khera Road, Najafgarh infront of Aman Garden where complainant Satish State Vs. Devender etc. FIR no. 196/10 Page No.1 of 23 alongwith his brother Yogesh met them. Complainant Satish was interrogated and he made statement Ex.PW1/A to the police alleging that the marriage of his bua's daughter was to be solemnized on 28.11.2010 and for the arrangement in marriage he had requested his relatives and friends to give LPG cooking gas cylinders. On 24.11.2010 in the night he collected 18 such cylinders and loaded them in his maruti Esteem car bearing no. DLC6068 and was going from CRPF Camp, Jharoda to his house. His brother Yogesh was also with him. At about 9.30 p.m when he reached Khera Road, Ajay Garden while driving his car, suddenly a motorcycle make TVS Starcity on which two boys were there; came and it overtook the car and stopped infront of it. He stopped his car. The pillion rider came towards driver seat and another boy who was driving the motorcycle came towards his brother and uttered 'hum crime branch se hai'. One boy pointed a pistol like object towards his brother Yogesh and threatened to get down from the car and hand over the car to them. The boy who was standing towards his side opened the door of his side and dragged him out of the car and himself sat on the driver seat. Due to fear his brother Yogesh also got down from the car. The said boy who sat on the driver seat took his car towards Najafgarh and another boy also went on motorcycle towards Najafgarh. He can State Vs. Devender etc. FIR no. 196/10 Page No.2 of 23 identify the said persons. He gave information at number 100 and police came there. IO made his endorsement Ex.PW9/B on his statement Ex.PW1/A and got the case registered. On 25.11.2010 on the pointing out of complainant Satish accused Devender was arrested alongwith motorcycle who disclosed the name of his co accused Kailash Chand. He was also arrested and recovery of LPG cylinders were effected. Accused Sunil was also arrested and recovery of LPG cylinders were effected from him. All the three accused were arrested in this case. The investigation was done and after completion of the investigation, accused persons were challaned to the court.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 14.09.2011.
3. The charge against the accused Devender was framed u/s 397 IPC and against accused u/s 392 IPC. Accused Sunil was charged u/s 411 IPC on 09.11.2011 by my Ld. Predecessor Ms. Ravinder Kaur, the then Ld. ASJ to which all the three accused persons pleaded not guilty and claimed trial. State Vs. Devender etc. FIR no. 196/10 Page No.3 of 23
4. The prosecution to prove its case against the accused persons, in all has examined as many as 10 witnesses.
5. PW1 Satish is the complainant in this case and PW2 Yogesh is the brother of PW1 who was present at the scene of crime.
6. PW3 Hukum Chand is the witness who had given two LPG gas cylinders to Satish.
7. PW4 Ct. Meghan Singh has deposed that on 25.11.10 he alongwith SI Prakash Chand and Ct. Vinod reached Khera Road where SI Sandeep and complainant Satish and his brother Yogesh met them and they went in search of Esteem Car no. DL 6C 6068. He has further deposed that at about 3.15 a.m. One motorcycle make TVS Starcity was seen coming from the side of Tikri village and rider was identified by complainant Satish as the person who robbed him and was pillion rider at that time. He was apprehended and his name came to know as Devender. Motorcycle was also identified by Satish and Yogesh as the same on which the accused persons came at the time of incident. He has further deposed that accused Devender State Vs. Devender etc. FIR no. 196/10 Page No.4 of 23 was interrogated and he disclosed the name of other associate as Kailash @ Kala. Accused Devender was arrested vide memo Ex.PW1/E and his personal search was conducted vide memo ex.PW1/H. The disclosure statement of accused is Ex.PW1/L. The motorcycle was seized vide memo Ex.PW1/N. He has further deposed that accused Devender led them to PTC Jharoda and at some distance from Jharoda, he got recovered Esteem Car no. DL 6C 6068. On checking the car, it was found loaded with three LPG Indane gas cylinders. He also got recovered seven cylinders from Dhaan ki pulia. The cylinder were seized vide memo Ex.PW1/O. He has further deposed that accused Devender led them to CRPF Market Jharoda Near the gate of CRPF and pointed out one person sitting in the shop with whom plan was made to rob the car and four cylinders were unloaded there for sale. The name of said person came to know as Sunil who was also interrogated and got recovered four cylinders which were seized vide memo Ex.PW1/R. Accused Sunil also got recovered 17 more cylinders which were seized u/s 102 Cr.PC vide memo ex.PW1/P. Accused Sunil was arrested vide memo Ex.PW1/G and his personal search was conducted vide memo Ex.PW1/K. The disclosure statement of accused is Ex.PW1/L. He has further deposed that both the accused Devender and Sunil led them to one State Vs. Devender etc. FIR no. 196/10 Page No.5 of 23 house near Main Jharoda Road and pointed out one person as their associate, who was apprehended and his name came to know as Kailash. On casual search of Kailash one toy type pistol was recovered, sketch of which is Ex.PW1/T and it was seized vide memo Ex.PW1/S and seal after use was handed over to Ct. Vinod. Accused was arrested vide memo EX.PW1/F and his personal search was conducted vide memo Ex.PW1/J. The disclosure statement of accused is Ex.PW1/L. He has further deposed that accused Kailash got recovered four LPG gas cylinders which were seized vide memo Ex.PW1/Q. All the accused persons had pointed out the spot of incident from where they had robbed car no. DL 6C 6068. The pointing out memo Ex.PW1/M. The identity of car, motorcycle and LPG Gas Cylinders have not been disputed by the Ld. Defence counsel.
8. PW5 SI Prakash Chand has deposed that on 25.11.2010 he alongwith Ct. Vinod, Ct. Meghan Singh reached at Khera Road and SI Sandeep alongwith complainant Satish and his brother Yogesh met them. He has further deposed that they went in search of esteem car and at Tikri they saw one motorcycle make TVS Starcity coming from Tikri village which was identified by complainant and State Vs. Devender etc. FIR no. 196/10 Page No.6 of 23 its rider who robbed him. He was apprehended and his name came to know Devender. PW5 has further deposed about arrest, personal search and disclosure statement of accused Devender and recovery of Estseem car loaded with three LPG cylinders as well as recovery of 7 cylinders from Dhan Pulia. The car was seized. He has further deposed that accused Devender took the police party to the shop of Sunil who was interrogated and arrested. His disclosure statement was recorded and recovery of four cylinders were effected from him. He has further deposed that 17 more LPG cylinder were seized as accused could not produce any ownership of the said cylinders. He has further deposed that accused led them to the house of Kailash from where he was arrested and his personal search was conducted. The disclosure statement of accused was recorded and one toy type pistol was recovered, sketch of which was prepared and it was seized vide memo Ex.PW1/S. He has further deposed that accused Kailash also got recovered four LPG cylinder which were seized vide memo ex.PW1/Q. He has further deposed that accused persons pointed out the place of incident.
9. PW6 Ashok is the friend of complainant Satish and he had also given two LPG cylinder to complainant for the purpose of State Vs. Devender etc. FIR no. 196/10 Page No.7 of 23 marriage of daughter of his bua.
10. PW7 Narender Singh is another friend of Satish who had also given two LPG gas cylinders to Satish.
11. PW8 Ct. Vinod it the witness who was with PW4 & 5 at the time of investigation. He has deposed about arrest of accused Devender and recoveries effected from him. He has further deposed about arrest of accused Sunil and Kailash and respective recoveries effected from them. He deposed on the line of PW4 & 5. He identified the toy type pistol Ex.PA.
12. PW9 SI Sandeep Kumar is the IO of this case who reached at the spot on receipt of DD no.21A Ex.PW9/A. He recorded the statement of complainant Ex.PW1/A, made his endorsement Ex.PW9/B and got the case registered. The copy of FIR is Ex.PW9/B1. He prepared the site plan Ex.PW9/C. He further deposed about joining the investigation by SI Prakash, Ct. Vinod and Ct. Meghan and about going in search of car. He has also deposed about apprehension of accused persons, conducting their personal search, recording of disclosure statements and recoveries effected State Vs. Devender etc. FIR no. 196/10 Page No.8 of 23 from them. He prepared the arrest memos, personal search memos and seizure memos. He has further deposed that accused persons were got medically examined. He seized the wedding card Ex.PX vide seizure memo Ex.PW1/B. He prepared the site plan Ex.PW9/E. He identified the toy type pistol Ex.PA.
13. PW10 Shivaji has deposed that he gave two filled LPG cylinder to Satish which he loaded in his car.
14. The evidence against the accused persons were put to them in their statements recorded u/s 313 Cr.P.C in which they have pleaded their innocence and deposed that they have been falsely implicated in this case. Accused persons did not lead defence evidence in this case. Thereafter the case was fixed for final arguments.
15. I have heard Ld APP for the State as well as Ld. defence counsel and perused the testimonies of all the PWS and exhibited documents carefully.
16. In the overall analysis of the testimonies of all the State Vs. Devender etc. FIR no. 196/10 Page No.9 of 23 witnesses it is revealed that PW1 Satish Kumar is the complainant and PW2 Yogesh is the brother of PW1 and he was present at the time of incident with PW1 and he is the eye witness in this case. They are the main star witnesses of the prosecution case as they had seen the accused persons when they had taken away the car loaded with LPG cylinders. The prosecution has examined the complainant as PW1. In his testimony PW1 Satish has deposed that on 24.11.2010 he alongwith his younger brother Yogesh went to CRPF camp Jharoda Kalan to take some LPG Cylinder as there was marriage of daughter of his bua on 28.11.10. They had gone in car no. DL 6C 6068. After taking 18 cylinder which he had loaded in his car the came back and when they reached Khera Road, Najafgarh two persons came on motorcycle make TV and stopped their car by putting the motorcycle in front of their car. The pillion rider got down and came to him and another boy came towards his brother and told that he is from Crime Branch and shown the pistol to his brother Yogesh. He was directed to hand over the car. The said persons forcibly dragged them from the car and one person who was in his side opened the door of his side, abused him and dragged him out of the car and took away his car and left the spot towards Najafgarh. He called up at no.100. He gave statement to the police State Vs. Devender etc. FIR no. 196/10 Page No.10 of 23 which is Ex.PW1/A. He cannot identify the said persons as they were wearing the helmets. He has further deposed that later he was informed by the police that his car as well as 18 LPG cylinders have been recovered. His signatures were obtained by police on some blank papers. He had given the marriage card to the IO. The car is Ex.PX and he handed over the customer book of LPG cylinders to the police which is mark PW1/A1 to A9. His car was released to him on superdari. He cannot identify the pistol type weapon shown to him since it was dark at that time and sufficient time had been passed. PW1 was declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein the witness had denied having made statement Mark.PW1/PA to the police. He denied about arrest of accused persons and recoveries effected from them in his presence. He admitted that documents Ex.PW1/E to H and J to T bears his signatures VOL. He had singed on blank papers at the behest of police later in the PS. He denied the suggestion that he deliberately refused to identify the accused persons being won over by them. He also did not identify the toy type pistol.
17. PW2 Yogesh is the brother of PW1 and eye witness in this case. He has also stated that he alongwith his brother had gone State Vs. Devender etc. FIR no. 196/10 Page No.11 of 23 to taken LPG Cylinders on 24.11.10 which were required for the marriage of daughter of his bua. He has further stated that after loading 18 cylinders in Esteem Car they came back and when reached Khera Road, two persons stopped their car by putting the motorcycle in front of their car. The said boys told them that they are from crime branch and shown the pistol to them. They forcibly dragged them from the car and took away their car towards Najafgarh. His brother made call at no.100. He has further stated that he cannot identify the said two persons since they were wearing helmets. Later on he was informed by the police that the car and LPG cylinder were recovered. His signatures were obtained by the police on some blank papers. He cannot identify the pistol type weapon since it was dark at that time and sufficient time has been passed. He could not identify the said motorcycle on which the robbers had come since he could not see its registration number due to darkness. He was declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein he denied having made statement Mark PW2/PA to the police.
18. In the present case the prosecution had sought to establish its case relying upon the evidence of PW1 Satish and PW2 State Vs. Devender etc. FIR no. 196/10 Page No.12 of 23 Yogesh as well as recovery of LPG Gas Cylinders and Maruti Esteem Car. On perusal of the deposition of PW1 Satish (complainant) and PW2 Yogesh (eye witness), it is revealed that both the PWS have clearly deposed about the incident which had taken place with them. But they did not identify the accused persons in this case that they are the same boys who had robbed them of their maruti esteem car as well as LPG Gas cylinder. From the testimony of PW3, PW6 and PW7 it can be established that the LPG cylinders were given by these witnesses to PW Satish for the purpose of marriage and the prosecution has also brought on record the marriage card Ex.PX. But non identification of the accused persons by the complainant as well as eye witness is fatal for the case of the prosecution. I have perused the cross examination conducted by the Ld. APP for the State. I appreciate the efforts put in by the Ld. APP for the State while cross examining PW1 as well as PW2 as she had cross examined both the witnesses at length and touched each aspect of the case but despite putting such an efforts nothing could be elicited from their cross examination to connect the accused persons with the present case crime.
19. In this case PW1 complainant and PW2 eye witness are State Vs. Devender etc. FIR no. 196/10 Page No.13 of 23 the star witnesses of the prosecution case but they have not supported the version of the prosecution case. It is held by our own Hon'ble High Court in case Raj Kumar Vs. State 1997(2) CC Cases HC 291 that: 'Where the PW has been absolutely inconsistent and has been changing his stand from time to time, he cannot be regarded as reliable and trustworthy witness of the occurrence' It is also held by Apex Court in the case of Suraj Mal Vs. Delhi Admn. 1997 Criminal Law Journal 108(SC) CC Cases that : 'When the prosecution witness gives two different statements in their testimonies either at one or two suggest, therefore the testimony become unreliable and unworthy of credit and in the absence of any circumstances no conviction could be made therein'.
20. In consideration of the above observations observed by the Hon'ble Apex court and Hon'ble High court and in consideration of the testimony of PW1&2 they are not reliable and trustworthy in State Vs. Devender etc. FIR no. 196/10 Page No.14 of 23 respect of the prosecution version.
21. However, I have also considered taken into consideration the testimonies of official witnesses to connect the accused persons with the present case crime. PW4 Ct. Meghan Singh, PW5 SI Prakash, PW8 Ct.Vinod and PW9 SI Sandeep are the witnesses of investigation. PW9 SI Sandeep reached at the spot on receipt of DD no.21A. I have perused the said DD Ex.PW9/A. As per DD, it has been mentioned that the accused persons had run away towards Bahadurgarh side after snatching the car. But as per the version of PW1 & 2 who are complainant and eye witness, they had gone towards Najafgarh side. Allegedly the motorcycle on which the accused person had come would have been parked at the spot for quite some time and PW1 and PW2 might have noted its number but they did not disclose the number of the said motorcycle to the police. I have perused the site plan Ex.PW9/C. The present case incident had taken place during night. PW9 SI Sandeep Kumar has admitted in cross examination that there were residences in front of the spot but none was present outside the houses due to late night hours. The present case incident had taken place between 9 to 10 p.m which is not the odd hours of night. IO had come to know about the incident State Vs. Devender etc. FIR no. 196/10 Page No.15 of 23 of robbery at about 10.30 p.m but he did not care to flash message on wireless that the esteem car in question may be stopped if someone being found driving. As per version of these official witnesses, first accused Devender was arrested in the early morning hours. I have perused his arrest memo which shows that he was arrested at about 4 a.m. However there is cutting on the time in arrest memo. IO SI Sandeep Kumar (PW9) in cross examination has stated that there was no provision of light on the said road. PW8 Ct.Vinod has stated that the motorcycle of accused Devender was given signal to stop by SI Prakash with his hand who was sitting on the back seat of the car. The glasses of the car of the complainant were transparent. PW8 Ct. Vinod, in cross examination has further stated that some vehicles were passing through on the said road however, none was present there on foot. No vehicles passing through the said road was got stopped by IO. It is not understandable as to how the accused could see the police party giving signal to him to stop when there was no provision of light on the road and as to how he would have stopped there.
22. In this case charge has been framed against accused Kailash @ Kala U/s 392 IPC and against accused Devender u/s 397 State Vs. Devender etc. FIR no. 196/10 Page No.16 of 23 IPC. Both the accused have not been identified by PW1 Satish, complainant and PW2 Yogesh, eye witness that they were the same persons who robbed them. The weapon of offence allegedly recovered from accused Kailash has also not been identified by either by PW1 or by PW2. PW3,6 & 7 who had allegedly given the LPG Cylinders have also not identified their cylinders before the court as the same which were given by them to complainant Satish. The esteem car in question was found parked on the side of the road. The car was lying opened however, the doors were lying shut and it was visible to the persons passing through the road. PW5 SI Prakash Chand has stated in cross examination that it is correct that no such intention to hide the car can be gathered from its parking. So, in view of the evidence available on file and since at the time of recovery of said car and cylinder, IO has failed to join any public witness, I am of the view that section 392/397 IPC are not made out in this case.
23. Accused Sunil Kumar @ Bittoo has been charged u/s 411 IPC. It has been alleged that he got recovered four Gas cylinder of this present case and 17 more cylinders were recovered from him u/s 102 Cr.PC. Allegedly he was arrested from his shop. Therefore, it is seems that he used to run shop. PW8 Ct. Vinod has stated that State Vs. Devender etc. FIR no. 196/10 Page No.17 of 23 there was no board installed outside the shop of accused Sunil. There was adjoining shops on both the sides. There was a gate of CRPF in front of the shop of accused Sunil, however, he did not see if there was any guard on duty there. PW9 SI Sandeep has stated that there was no specific mark of identification on any of the cylinder. Perusal of record shows that even IO himself has not tried to put any mark on the cylinders in question after recovery. Further, from the evidence on record, it is manifest that there were shops near the shop of accused Sunil and even there was CRPF main gate where guards used to be available round the clock. But no public person has been joined at the time of recovery of alleged LPG Gas Cylinders. So, nonjoining the public persons creates doubt in the prosecution case. An important point has been observed in case Law 1998(8) Supreme Court 435 that in absence of independent evidence merely on basis of police officer's evidence about seizure of pistol and cartridge conviction could not be upheld. It is well settled law in the Darshan Singh vs. State of Haryana, 1997(2) CC Cases HC 189 that : "When genuine attempts has not been made to join public witnesses - One is constrained to observe that in case of suppression and misstatement of fact, it is difficult to State Vs. Devender etc. FIR no. 196/10 Page No.18 of 23 believe the official witnesses".
It is stated in case titled Mohan Lal Vs. State of Maharashtra, AIR 1979 Supreme Court 1718 that : 'The mere presence of the accused in the shop where the goods were delivered did not itself prove the essential ingredients for an offence u/s 411 IPC.
In case law 1954 S.C 39 (vol.41 C.N.14) titled Trimbak Vs. State of MP it is stated in head note that: 'It is the duty of the prosecution in order to bring home the guilt of the person u/s 411 IPC to prove that the stolen property was in the possession of the accused'.
24. An important point has been observed in case Anirudha Agasti @ Surendera Pande Vs. State that presumption u/s 114(a) of Evidence Act, 1872 can arise only if the prosecution has, by clear and cogent evidence, established that an accused person has been in possession of the stolen articles.
25. In case titled Ramadhar Chamar & Ors Vs. State of State Vs. Devender etc. FIR no. 196/10 Page No.19 of 23 Bihar it is stated in head note that :
'IPC 1860 - Sections 395 and 412 - Recovery of property stolen in the commission of dacoity - If it is to be made basis for conviction, onus lies on prosecution to prove that the article recovery must be in conscious and exclusive possession of accused - Onus not discharged - Result - Acquittal'.
In case law 2008(1) AD (Delhi) 735 Santsoh Kumar Vs. State, (Delhi) it is stated in head note that : 'IPC 1860, Sec. 328, 379 and 411 - Hurt - Administration of poison - Punishment for theft, stolen property -
Appeal - Held - findings are not sustainable because these are based on conjecture - Medical evidence should be there to establish the administration intoxicating substance was mixed in tea or in the biscuit - Prosecution failed to establish recovery of some goods from the possession of accused no details of the goods rendered which were recovered from the possession of the accused at the time of his apprehension by PW6 and those goods actually belonged to PW5 - Further recovery of any stolen property State Vs. Devender etc. FIR no. 196/10 Page No.20 of 23 from the possession of the accused is not established - Impugned Judgment passed by trial court is set aside and the accused stands acquitted of both the charges.' In case Law titled State Vs. Chotely Lal 1999 CRI. L.J. 3411 it is stated in head note B that : 'Penal Code (45 of 1860), S.411 - Dishonestly receiving stolen property - Proof - alleged recovery of bag from coaccused containing part of stolen property - Offence of robbery and murder against accused persons not made out - theory of recovery of stolen property from accused persons also not believed - Said alleged recovery from coaccused is of no consequence - Conviction of co accused under S.411, set aside'.
26. In nutshell, the present case has not been supported by PW1 Satish and PW2 Yogesh to the extent that accused present in the court are the same boy who robbed them. These PWS are the backbone of the prosecution case and the entire prosecution case rests upon their testimonies but they have not identified the accused persons. Their testimony is unworthy of credit and in the absence of State Vs. Devender etc. FIR no. 196/10 Page No.21 of 23 any circumstances & in consideration of the testimonies of above Pws and on the basis of evidence on record the accused cannot be convicted.
27. It is well settled that in criminal cases heavy burden lies upon the prosecution to prove its case against the accused beyond any reasonable doubt and the evidence led by the prosecution should be such that it should not lead to any other hypothesis except to the guilt of the accused. But, as discussed above, the record of this case lack of all such material. There is well settled law in criminal jurisprudence "Stricter the penalty, stricter the proof".It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that : "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent".
State Vs. Devender etc. FIR no. 196/10 Page No.22 of 23
28. In view of my above discussions, the prosecution has miserably failed to establish even the part of the case regarding recovery of goods belonging to Satish from the possession of accused. So, I am of the view that the accused persons are entitled to be given the benefit of doubt in this case. I therefore give the benefit of doubt to accused Devender, Kailash Chand and Sunil Kumar @ Bittoo. The prosecution could not prove the charge against them. I therefore acquit accused Kailash for the commission of offence u/s 392 IPC, accused Devender for the commission of offence u/s 397 IPC and accused Sunil Kumar for the commission of offence punishable u/s 411 IPC. All the accused are on bail in this case. Their BB/SB are cancelled and sureties are discharged. File be consigned to record room.
Announced in the open Court on 21.04.2011.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI State Vs. Devender etc. FIR no. 196/10 Page No.23 of 23