Delhi District Court
State vs Nitin Kashyap on 12 October, 2023
IN THE COURT OF SH. SANJAY SHARMA-II : DJ (COMMERCIAL-11)
(CENTRAL): TIS HAZARI COURTS, DELHI
SC No. : 27424/2016
FIR No. : 81/2013
Under Section : 365/395/412 IPC
Police Station : Kashmere Gate
CNR No. : DLCT01-000306-2013
State Versus 1. Nitin Kashyap
S/o Sh. Gopal Kashyap
R/o Village Randab, PS Loni
Ghaziabad, Uttar Pradesh
2. Rahul Sharma @ Upender
S/o Sh. Rajender Sharma
R/o B-227, Gali No. 7
Rama Garden, Karawal Nagar
Delhi
3. Monu
S/o Sh. Akhlesh
R/o H. No. 165, Gali No. 6
Raghunath Colony, Loni
Ghaziabad, U.P.
4. Shahrukh
S/o Mr. Iqbal
R/o VPO Kardampuri, Gali No. 1
Pahli Pulia, PS Welcome
Jafrabad, Delhi
5. Gulshan @ Raju Langra @
Sohel @ Imran
S/o Sh. Sameer
R/o H. No. 153, Gali No. 12
Main Kardampuri, Maujpur
Delhi
Date of Institution : 15.07.2013
Date of Arguments : 05.06.2023
Date of Judgment : 12.10.2023
JUDGMENT
FIR No. 81/2013 State vs. Nitin Kashyap & Ors. Page No. 1 of 26 INTRODUCTION:
1. The case of the prosecution is that on 09.04.2013 at about 09.30 p.m., the accused persons, in furtherance of common intention, abducted Mr. Mitesh Kumar (In short 'the complainant') in front of Gate No. 6, Metro Station, near Flyover, Kashmere Gate, Delhi, within jurisdiction of PS Kashmere Gate, with intent to secretly and wrongfully confine him. Thus, the State prosecuted the accused persons for committing offence under Section 365/34 of 'The Indian Penal Code, 1860' (In short 'IPC').
2. It is further case of the prosecution that the accused persons committed dacoity and looted mobile phones make Nokia X2, black colour and MAXX, yellow colour and cash amount of Rs. 250/- from the complainant. Thus, the State prosecuted the accused persons for committing offence under Section 395 IPC.
3. It is further case of the prosecution that mobile phone make Nokia X2, black colour was recovered from the accused Gulshan @ Raju Langra @ Sohel @ Imran (In short 'Gulshan'). Thus, the State prosecuted him for committing offence under Section 412 IPC.
4. It is further case of the prosecution that mobile phone make MAXX, yellow colour was recovered from the accused Monu. Thus, the State prosecuted him for committing offence under Section 412 IPC.
5. It is further case of the prosecution that amount of Rs. 250/- was recovered from the accused Shahrukh. Thus, the State prosecuted him for committing offence under Section 412 IPC.
FIR No. 81/2013 State vs. Nitin Kashyap & Ors. Page No. 2 of 26 RECEIPT OF PCR CALL:
6. On 09.04.2013 at 11.41 p.m., PS Kashmere Gate received a PCR call, through wireless, whereby the caller informed, through mobile No. 7503442740, that someone robbed mobile phone and an amount of Rs. 300/- from his son after assaulting and showing a pistol, vide DD No. 46A Ex.PW11/A. TEHRIR:
7. On receipt of DD No. 46A, PW-11 SI Jai Prakash contacted caller on his mobile phone who stated that the complainant was at his house. Thereafter, he alongwith PW-4 Ct.
Sudhakar reached H. No. C-9, Gali No. 1, Khajuri Khas, Delhi where he met the complainant. He recorded statement of the complainant Ex.PW1/A, as under:
"Stated that I am residing alongwith my family at the aforesaid address. I am employed with a photo studio shop in Rajendra Place, New Delhi. On 09.04.2013, I boarded Metro at Rajendra Place. At about 09.30 p.m., I alighted at Kashmere Gate Metro Station. I came out from Gate No. 6. I asked a TSR driver for reaching Khajuri. I do not know registration number of TSR. In the said TSR, one person was sitting alongwith the driver on the driver's seat and one person was sitting on rear seat of TSR. He settled hire charges for Khajuri at Rs. 10/- and I sat on rear seat of TSR. As soon as TSR moved, two more persons also boarded TSR. TSR driver taken U-turn from Mori Gate and proceeded towards Shastri Park via ISBT Flyover. When TSR reached in the mid of ISBT Flyover, the person sitting beside the driver got TSR stopped TSR on the pretext of vomiting and he sat on rear seat alongwith us. TSR driver moved TSR. As son as TSR started moving, the said persons overpowered me and the person who was already sitting in TSR and the two persons who were sitting with me in TSR pinned me down and the person who moved from driver's seat robbed mobile phone make Nokia X2, black colour containing Vodafone SIM and mobile phone make MAXX, yellow colour containing Aircel SIM and an amount of Rs. 250/- from my trousers.
FIR No. 81/2013 State vs. Nitin Kashyap & Ors. Page No. 3 of 26 TSR driver kept on driving TSR and the said four persons taken me to Sarai Kale Khan Bus Stand while intimidating me. TSR driver stopped TSR and asked the persons occupying the rear seat to drive TSR. When the said persons alighted from TSR, I managed to escape from there. I boarded a bus. At about 11.10 p.m., I reached my house and informed the incident to my father who called at 100. You have come to my house. You have recorded my statement. I do not want to get my medical examination. Auto driver and the said four persons robbed my mobile phones and amount of Rs. 250/- after intimidating me. Legal action be taken against them. I can identify auto driver and the said four persons, if they come before me. I have heard my statement. It is correct."
RUKKA:
8. PW-11 SI Jai Prakash made endorsement for registration of case under Section 365/395 IPC Ex.PW11/B. REGISTRATION OF FIR:
9. On 10.04.2013 at about 02.02 a.m., PW-7 SI Ram Niwash, Duty Officer, PS Kashmere Gate registered FIR No. 81/2013 under Section 365/395 IPC Ex.PW7/A. APPREHENSION OF THE ACCUSED PERSONS:
10. On 10.04.2013 at 05.05 a.m., PW-11 SI Jai Prakash received a secret information that the persons who committed incident in an auto on ISBT Flyover on 09.04.2013 would go to their destination from New Delhi Railway Station via Chhatta Rail. He recorded the secret information, vide DD No. 10B Ex.PW11/C. He conveyed the secret information to SHO, PS Kashmere Gate. On instruction of SHO, PS Kashmere Gate, he formed a raiding team comprising himself, PW-9 SI Ravi Kumar, PW-10 HC Raj Kumar, PW-4 Ct. Sudhakar and HC Ram Dayal and proceeded from PS Kashmere Gate, vide DD No. 11 Ex.PW11/D. He placed barricades near Chhatta Rail and started checking vehicles.
FIR No. 81/2013 State vs. Nitin Kashyap & Ors. Page No. 4 of 26
11. On 10.04.2013 at about 06.15 a.m., one TSR came from the side of Chhatta Rail. Secret informer pointed out the said TSR. PW-11 SI Jai Prakash alongwith the raiding team stopped the said TSR. On enquiry, name of TSR driver was revealed as 'Rahul Sharma @ Upender'. The names of other four persons were revealed as 'Gulshan', 'Shahrukh', 'Monu' and 'Nitin Kashyap'. With the assistance of raiding team, he apprehended them. He searched them. He recovered a mobile phone make Nokia X2, black colour from right pocket of trousers of the accused Gulshan and a mobile phone make MAXX, yellow colour from right pocket of trousers of the accused Monu.
He recovered an amount of Rs. 250/- from right pocket of trousers of the accused Shahrukh. He arrested them, vide arrest memos Ex.PW4/A to Ex.PW4/E respectively. He interrogated them. He recorded their disclosure statements Ex.PW4/G1 to Ex.PW4/G5 respectively. He seized the said mobile phones, amount of Rs. 250/- and TSR No. DL 1RL 6765, vide seizure memos Ex.PW10/F to Ex.PW10/H, and Ex.PW4/F respectively. He deposited recovered property in police malkhana. He prepared pointing out memos of the place of incident at the instance of the accused persons, vide memos Ex.PW10/J to Ex.PW10/M, and Ex.PW11/F respectively. He prepared site plan of the place of incident Ex.PW11/G at the instance of the complainant.
12. PW-11 SI Jai Prakash produced the accused persons in muffled face before Jurisdictional Magistrate. He filed an application for Test Identification Parade (TIP) of the accused persons. The accused persons refused to participate in TIP, vide TIP proceedings Ex.PX1 to Ex.PX5 respectively.
FIR No. 81/2013 State vs. Nitin Kashyap & Ors. Page No. 5 of 26
13. PW-11 SI Jai Prakash collected mobile bills. He recorded statements of the witnesses.
CHARGE-SHEET:
14. On conclusion of investigation, PW-11 SI Jai Prakash charge-sheeted the accused persons for committing offences punishable under Sections 365/395/412 IPC. COMMITTAL PROCEEDINGS:
15. Vide order dated 12.07.2013, Jurisdictional Magistrate committed the case to the Court of Session. CHARGE:
16. Vide order dated 01.10.2013, the accused persons were charged for committing offences under Section 365/34 and 395 IPC. The accused Gulshan, Monu and Shahrukh were charged for committing offence under Section 412 IPC. The accused persons abjured their guilt and claimed trial. TRIAL:
17. The prosecution examined 11 witnesses, as under:
The witnesses Description of the witnesses PW-1 Mitesh Kumar The complainant PW-2 Mohd. Hussain Regd. owner of TSR No. DL 1RL 6765 PW-3 Naresh Kumar Owner of M/s. Y.K. Telecom Mobile Shop PW-4 Ct. Sudhakar Shinde Accompanied IO SI Jai Prakash PW-5 B.C. Vasisht Owner of M/s. Tele Talk Communication PW-6 Ct. Gajender Singh Taken original rukka and a copy of FIR to IO PW-7 SI Ram Niwas Duty Officer, PS Kashmere Gate PW-8 Danish Khan Owner of TSR No. DL 1RL 6765 PW-9 SI Ravi Kumar Arrest and recovery witness PW-10 HC Raj Kumar Arrest and recovery witness PW-11 SI Jai Prakash Investigating Officer FIR No. 81/2013 State vs. Nitin Kashyap & Ors. Page No. 6 of 26 EXAMINATION UNDER SECTION 313 CR.P.C.:
18. In their examination under section 313 Cr.P.C., the accused persons denied each and every circumstance appearing in evidence against them. They stated that they were falsely implicated. They stated that the prosecution witnesses are interested witnesses and they have deposed falsely. They pleaded innocence and claimed false implication. DEFENCE EVIDENCE:
19. The accused Nitin Kashyap examined Smt. Pushpa Kashyap, his mother, as D1W1.
20. The accused Shahrukh examined Mst. Nisha Malik, his mother, as D4W1.
21. The accused Gulshan examined Ms. Aftab Jahan, his sister, as D5W1.
APPEARANCE:
22. I have heard arguments of Mr. Amit Dabas, Ld. Addl. PP for the State and Mr. Yogendra Chaudhary, Advocate for all the accused persons and examined the evidence, oral and documentary.
CONTENTIONS OF THE PROSECUTION:
23. Ld. Addl. PP for the State contended that the prosecution adduced credible, unblemished and trustworthy evidence, and proved charges against the accused persons beyond reasonable doubt. He contended that the complainant described the incident. He contended that the complainant identified the accused persons. He contended that the complainant had no enmity with the accused persons. He contended that the complainant had no reason to falsely implicate the accused persons.
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24. Ld. Addl. PP for the State contended that there was no delay in reporting of the incident and registration of FIR. He contended that the accused persons were apprehended soon after the incident. He contended that there is no material contradiction, inconsistency or improvement in evidence of the complainant.
He contended that mobile phones and robbed amount of Rs. 250/- were recovered from the accused Gulshan, Monu and Shahrukh. He contended that the accused persons have not given any explanation for possession of the robbed mobile phones and amount pertaining to the complainant. He contended that the Investigating Officer and other recovery witnesses had no enmity with the accused persons. He contended that evidence of police officials pertaining to search and seizure cannot be doubted on the ground of non-association of an independent witness. He contended that the accused persons did not participate in Test Identification Parade (TIP) in the absence of any plausible reason. He contended that evidence of the complainant is corroborated by recovery of robbed mobile phones and amount and refusal of the accused persons to join Test Identification Parade (TIP). He contended that the prosecution proved charges against the accused persons.
CONTENTIONS OF THE DEFENCE:
25. Ld. Defence Counsel contended that the prosecution has not proved its case beyond reasonable doubt. He contended that the case, as projected by prosecution, is highly improbable, unbelievable and fictitious. He contended that FIR was lodged by the complainant after due deliberation. He contended that there is no CCTV footage pertaining to presence of the complainant at Kashmere Gate Metro Station or boarding of TSR.
FIR No. 81/2013 State vs. Nitin Kashyap & Ors. Page No. 8 of 26
26. Ld. Defence Counsel contended that there is no PCR form or CDR pertaining to PCR call made by the complainant's father. He contended that number of persons deposed by the complainant, in his evidence, does not correspond with the number of persons, in complaint Ex.PW1/A. He contended that the complainant has neither identified the driver of TSR nor described role of the accused persons. He contended that there is no ownership proof of recovered mobile phones. He contended that the prosecution has neither produced nor proved relevant Customer Application Form (CAF) and Call Detail Record (CDR) pertaining to use of the said mobile phones by the complainant at the relevant time. He contended that the accused persons were shown to the complainant and they rightly refused to participate in Test Identification Parade (TIP). He contended that photographs of the accused persons were shown to the complainant. He contended that the defence witnesses proved that the accused persons were apprehended from their houses and implicated in this case. He contended that the prosecution failed to bring home charges against the accused persons.
CONCEPT OF PROOF BEYOND REASONABLE DOUBT:
27. The golden thread of criminal jurisprudence is that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proven guilty. While dealing with a criminal trial, the Court must not be oblivious of the most fundamental principle of criminal jurisprudence, which is, that the accused 'must be' and not merely 'may be' guilty before the Court proceeds to convict him. The mental distance between 'may be' and 'must be' is long and divides vague 'conjectures' from 'conclusions'.
FIR No. 81/2013 State vs. Nitin Kashyap & Ors. Page No. 9 of 26 MODE OF ASSESSMENT OF EVIDENCE:
28. In criminal cases, the Court cannot proceed to consider the evidence of the prosecution witnesses in a mechanical way. The broad features of the prosecution case, the probabilities and the normal course of human conduct of a prudent person are some of the factors which are always kept in mind while evaluating the merit of the case.
29. While appreciating the intrinsic worth of evidence, the Court must satisfy itself as to whether the evidence of the witness, if read in its entirety, has a ring of truth. APPRECIATION OF EVIDENCE:
30. Appreciation of evidence is an onerous task. In order to appreciate the evidence, the Court can make use of principles for appreciation of evidence enunciated in judicial precedents.
31. In Balu Sudam Khalde and Another vs. State of Maharashtra, 2023 SCC OnLine SC 355, Hon'ble Supreme Court of India held, as under:
"25. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
"I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
FIR No. 81/2013 State vs. Nitin Kashyap & Ors. Page No. 10 of 26 II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be human tape recorder.
FIR No. 81/2013 State vs. Nitin Kashyap & Ors. Page No. 11 of 26 X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness."
32. In Munna Lal vs. State of Uttar Pradesh, 2023 SCC OnLine SC 80, Hon'ble Supreme Court of India delineated principles for appreciation of evidence, as under:
"28. Before embarking on the exercise of deciding the fate of these appellants, it would be apt to take note of certain principles relevant for a decision on these two appeals. Needless to observe, such principles have evolved over the years and crystallized into 'settled principles of law'. These are:
(a). Section 134 of Indian Evidence Act, 1872, enshrines the well-recognized maxim that evidence has to be weighed and not counted. In other words, it is the quality of evidence that matters and not the quantity. As a sequitur, even in a case of murder, it is not necessary to insist upon a plurality of witnesses and the oral evidence of a single witness, if found to be reliable and trustworthy, could lead to a conviction.
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(b). Generally speaking, oral testimony may be classified into three categories, viz.:
(i) Wholly reliable;
(ii) Wholly unreliable;
(iii) Neither wholly reliable nor wholly unreliable.
The first two category of cases may not pose serious difficulty for the court in arriving at its conclusion(s). However, in the third category of cases, the court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of the rule of prudence.
(c). A defective investigation is not always fatal to the prosecution where ocular testimony is found credible and cogent. While in such a case the court has to be circumspect in evaluating the evidence, a faulty investigation cannot in all cases be a determinative factor to throw out a credible prosecution version.
(d). Non-examination of the Investigating Officer must result in prejudice to the accused; if no prejudice is caused, mere non-examination would not render the prosecution case fatal.
(e). Discrepancies do creep in, when a witness deposes in a natural manner after lapse of some time, and if such discrepancies are comparatively of a minor nature and do not go to the root of the prosecution story, then the same may not be given undue importance."
LAW ON CONTRADICTIONS AND DISCREPANCIES:
33. While appreciating the evidence, the Court has to take into consideration whether the contradictions / omissions are of such magnitude that they may materially affect the trial. Normally, omissions or contradictions which affect the basic structure of the prosecution case may be considered to be sufficient for giving benefit of doubt to the accused. When the contradictions are so serious and create doubt in the mind of the Court about the truthfulness of the statement, then such evidence is not safe to rely upon.
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34. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the Court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence. OFFENCE OF KIDNAPPING OR ABDUCTING WITH INTENT TO SECRETLY AND WRONGFULLY CONFINE A PERSON:
35. Section 365 IPC is, as under:
"365. Kidnapping or abducting with intent secretly and wrongfully to confine person Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
OFFENCE OF DACOITY:
36. The offence of dacoity falls within Chapter XVII IPC which relates to Offences Against Property. Section 390 IPC explains what is "robbery". It explains, when theft is robbery and when extortion is robbery. Section 390 IPC alongwith explanation is, as under:
"390. Robbery.- 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 or 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.
FIR No. 81/2013 State vs. Nitin Kashyap & Ors. Page No. 14 of 26 When extortion is robbery.- Extortion is ''robbery'' if the offender, at the time of committing 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, of 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.
Explanation.- The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
37. Section 391 IPC defines 'dacoity'. Section 391 IPC is, as under:
"Section 391. Dacoity. - when five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
38. Section 395 IPC provides for punishment for the offence of dacoity. Section 395 IPC is, as under:
"Section 395. Punishment for dacoity Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
39. Theft amounts to '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 or 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.
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40. Before theft can amount to 'robbery', the offender must have voluntarily caused or attempted 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. The second necessary ingredient is that this must be 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 third necessary ingredient is that the offenders must voluntarily cause or attempt to cause to any person hurt etc., for that end, that is, in order to the committing of the theft or for the purpose of committing theft or for carrying away or attempting to carry away property obtained by the theft. ANALYSIS AND DISCUSSION:
41. The first issue before the Court is whether the evidence of the complainant is reliable. The second issue is whether the evidence of the complainant is suffering from inherent improbabilities rendering it not worthy of credence. Third issue is whether there are contradictions, inconsistencies, improvements and omissions of such nature rendering the evidence of the complainant unsafe for reliance. The fourth issue is whether there are defects in the investigation of such nature which can render the case of the prosecution doubtful.
42. PW-1 Mitesh Kumar is the complainant. He is a material witness. He deposed, as under:
"On 09.04.2013, I was coming from my office by Metro. At around 9.30 pm, I got down from the Metro at Kashmere Gate Metro Station. When I came out from gate No. 6 of the Metro Station, I saw that in an auto rickshaw, two passengers were sitting at the back seat and one person was sitting alongwith the driver. I asked the auto driver to take me for Khazuri Khas.
FIR No. 81/2013 State vs. Nitin Kashyap & Ors. Page No. 16 of 26 He demanded Rs. 10/- from me for that purpose. I boarded that auto and sat down on the back seat of the auto where two passengers were already sitting. On the way near Shastri Park U Turn, the auto driver stopped his auto and where from two more persons came and sat down alongwith us at the back seat. When we were on ISBT fly over, the person sitting with the driver on the pretext of vomiting, asked the driver to stop the auto and requested the driver to allow him to sit at the back seat. The said person came and sat at the back seat with the permission of the driver. Auto driver started to drive the auto and suddenly all the four persons sitting in the auto overpowered me and started beating me. At that time I was having two mobile phones, one was of Model Nokia X2 of black colour having SIM of Vodafone and second was of Micromax of Yellow colour having SIM of Aircel and also Rs. 250/- cash in my pant pocket. They all forcibly took out my money and these cell phones and gave beating to me. In this process, auto driver was continuously driving his auto and took us to Sarai Kale Khan Bus Stand. On reaching there, the auto driver and the other passengers started some conversation with each other and in the meanwhile, I got a chance to escape from their clutches and I took a bus from there to reach at Shastri Park. Then I took a lift from there in a bike and reached my home. I immediately informed my father about the incident and he in turn made a call at 100 number. Police reached at my home and they recorded my statement which is Ex.PW1/A bearing my signatures at point A. On 12.04.2013, I went to the PS Kashmere Gate to collect the copy of FIR. They asked me to produce the receipt of purchasing the cell phones. Thereafter on 26.04.2013, I again went to the PS alongwith the receipts of cell phones. But the concerned police officials i.e. IO was not present there at the PS. On inquiry, I came to know that the IO had gone to Tis Hazari Court. Therefore, I also came at Tis Hazari Courts to meet IO. I met the IO in the Court Room. IO took the receipts of the cell phones from me. The accused persons present in the court today were also present there in the said court room (witness correctly identified all the accused persons today). The accused Gulshan present in the court today was initially sitting alongwith the auto driver and then came back and sat with us in auto on the pretext of vomiting on the day and time of the incident who forcibly took out my cell phones and money from my pocket.
FIR No. 81/2013 State vs. Nitin Kashyap & Ors. Page No. 17 of 26 I can identify my mobile phones bills. I have seen photo copy of mobile phones bills from the judicial record which were handed over by me to the IO. Today, I have brought the originals of the said bills. Same are Ex.PW1/B and Ex.PW1/C. At this stage, MHC(M) produced one sealed parcel bearing particulars of this case duly sealed with the seal of JPS. After opening the parcel two mobile phones i.e. Nokia X2 of black colour and Micromax Yellow colour kept in a plastic box taken out and shown to the witness. Witness correctly identified both the mobile phones are the same which he was carrying at the time of incident and robbed of. Same are Ex.P1 and P2 respectively.
The amount of Rs. 250/- which I was carrying at the time of incident and robbed of are in the denominations of two currency notes of rupees and one currency note of rupee fifty.
MHC(M) also produced one sealed envelope sealed with the seal of JPS having particulars of this case. After opening the same, two currency notes of rupees hundred and one currency note of rupee fifty of denomination are taken out. The witness correctly identified the same. The same are Ex.P3 collectively. At this stage, Ld. Addl. PP requested to put a leading question to the witness in respect of date of his visit to the Tis Hazari Court.
Heard and allowed.
It is correct that I came to Tis Hazari Courts on 29.04.2018 and not on 26.04.2013.
XXXX by Sh. D.K. Sharma, Ld. Counsel for accused Rahul.
On 12.04.2013, I was called by the IO in the Police Station to give me the copy of FIR. I came to know at the Police Station about apprehension of the accused persons.
During days of the incident, I used to recharge my metro card for Rs. 100/-. During those days, I was working in a studio situated at Shanker Road. I worked there for 4-5 months. At present, I have no document to show that I was working there at that point of time. It is wrong to suggest that I was not working at any studio. I do not have the metro pass which was recharged by me that time.
FIR No. 81/2013 State vs. Nitin Kashyap & Ors. Page No. 18 of 26 When I boarded the auto, three persons including the driver were already sitting there in the auto. Thereafter, two more persons also boarded the auto. There were total five persons sitting in the auto besides me. During the incident, I did not shout "Bachao Bachao". Vol. Because at that time, one of the said five persons had caught hold my neck tightly and another had pressed my stomach by a pointed iron article. I had also narrated this fact to the IO. Vol. I was under trauma of the incident at the time of making statement to the IO. I had not read over my statement. I do not remember as to when I had recorded my statement to the IO after the incident. I did not tell about the incident to the biker who had given me the lift after the incident. After reaching Sarai Kale Khan, all five persons started conversation with each other which I could not hear because of the trauma. As I got a chance to escape from the clutches of these persons, I took a bus for ISBT. After getting down from the bus at ISBT, I took another bus for Shastri Park. I could not buy any ticket for bus travel. Vol. I was not having any money. When the bus conductor asked me to buy a ticket, I told him that I was in some difficulty that's why I was not able to buy the ticket. IO did not make my father a witness in the case. IO also did not inquire anything from my father. It is correct that my father is in Delhi Police. At that night of the incident, some police officials came at my home, but I do not know whether it was PCR official or Police Station's officials. My father had called at 100 number in my presence. My father narrated about the incident at 100 number. Police came at my home once in my presence. Vol. I do not know whether police came at second time or not. Police recorded my statement only once at my home. On the day of incident, I was wearing black pant and Gray T-shirt. Police did not seize my T-shirt. Police took me to the place of incident only once. I do not remember as to when police took me at the place of incident. Police did not prepare site plan before me. Vol. Though I had shown the place of incident to the police.
It is correct that gate No. 6 of Metro Station is a crowded place and having sufficient lights. I did not note the number of the auto. I was not medically examined. Vol. There was no injury marks on my body. Police asked me for medical examination but I refused.
FIR No. 81/2013 State vs. Nitin Kashyap & Ors. Page No. 19 of 26 I do not remember the number of the cell phone through which my father made a call at 100 number. It is wrong to suggest that no such incident took place and my father being a policeman got the false case registered and the cell phone and other documents were planted. It is wrong to suggest that I am deposing falsely.
XXXX by Sh. Prashant Sharma, Ld. Counsel for accused Gulshan.
It is correct that no TSR has been shown to me by the police for identification. On the day of incident, I was carrying two mobile phones, Rs. 250/-cash, one bag, water bottle and tiffin. The accused persons had not taken my bag, water bottle and tiffin. They had taken my valuable items only.
XXXX by Sh. Yogender Singh Chaudhary, Ld. Counsel for accused Monu.
I had the bills of said two mobile phones. One bill was original and other was photocopy. The original bill of Micromax phone was misplaced somewhere. I never went to the shop to get the duplicate bill of the same. I do not remember as to whether I had signed the bill of Micromax at the time of its purchase. X- 201 Nokia phone was purchased in the name of my brother namely Amit Kumar. Vol. I was using that phone. Amit Kumar was working in a hospital. In my presence, police did not record statement of my brother Amit Kumar. I had boarded a DTC bus from Sarai Kale Khan after the incident. There were some passengers sitting in the bus. I did not tell about this incident to anybody present in the bus. It is correct that I did not tell about the incident to the policeman, if any present at ISBT. Vol. I was under trauma at that time. The bus which I boarded from ISBT to Shastri Park was of DTC and it was of green colour. In that bus also, I did not tell about the incident to anybody. I got down from the bus at Shastri Park red light. It is correct that police remains present there at Shastri Park red light. There also, I did not tell anybody about the incident. I do not know where my father was posted at that time. I had told my father about Rs. 250/- besides other items and the same things, my father narrated at 100 number. I had also told my father that pointed article was pressed on my stomach. I had not heard the complete conversation held between my father and receiver at 100 number. It is wrong to suggest that I am deposing falsely at the instance of my father."
(emphasis supplied) FIR No. 81/2013 State vs. Nitin Kashyap & Ors. Page No. 20 of 26
43. The complainant, in the complaint Ex.PW1/A, stated that when he boarded TSR, one person was sitting with the driver on driver's seat and one person was sitting on the rear seat and thereafter, when TSR moved, two more persons boarded TSR. As such, there were five persons in TSR at the time of the incident. However, the complainant, in his examination-in-chief, stated that when he boarded TSR, one person was sitting alongwith the driver and two persons were sitting on the rear seat and on the way, two more persons boarded TSR and occupied rear seat. As such, there were six persons in TSR at the time of the incident. Therefore, there is a contradiction regarding the number of offenders who committed the offence of dacoity.
44. The complainant, in the complaint Ex.PW1/A, stated that four persons overpowered him in TSR and the person who moved from driver's seat to rear seat robbed his mobile phones and cash amount of Rs. 250/-. In his complaint, he has not made any allegation pertaining to use of any sharp edged object by any of the offenders at the time of committing dacoity. However, in his cross-examination, he stated that one of the offenders pressed a 'pointed iron article' into his stomach. This is a material improvement.
45. The complainant, in the complaint Ex.PW1/A, and in his evidence, stated that he managed to escape from TSR at Sarai Kale Khan Bus Stand and thereafter, he boarded a DTC Bus and reached ISBT and from there, he boarded another DTC Bus to reach Shastri Park. From Shastri Park, he taken a lift from a motorcycle rider and reached his house. However, he did not inform any police station or police official or made any PCR call regarding the incident.
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46. The case of the prosecution is that the complainant's father made a PCR call pertaining to the incident, vide DD No. 46A Ex.PW11/A. In the said DD, it is mentioned that someone robbed mobile phones and an amount of Rs. 300/- from the complainant by showing a pistol. The complainant has never stated regarding use of pistol in his complaint Ex.PW1/A and evidence.
47. The prosecution has neither produced nor proved PCR form pertaining to receipt of PCR call resulting into recording of DD No. 46A Ex.PW11/A. The prosecution has also neither produced nor proved Customer Application Form (CAF) and Call Detail Record (CDR) pertaining to PCR call made from mobile No. 7503442740.
48. PW-11 SI Jai Prakash stated that he prepared site plan of the place of incident Ex.PW11/G. However, the complainant stated that police did not prepare site plan in his presence. The site plan Ex.PW11/G is undated and it does not bear signature of the complainant.
49. The case of the prosecution is that the accused persons robbed mobile phones make Nokia X2 Ex.P1 and Maxx Ex.P2 from the complainant. In that regard, the prosecution relied on mobile bills Ex.PW1/B and Ex.PW1/C respectively. The prosecution examined PW-3 Naresh Kumar, owner of M/s. Y.K. Telecom and PW-5 B.C. Vasisht, owner of M/s. Tele Talk Communication. PW-3 Naresh Kumar did not bring the original bill book of bill Ex.PW1/B. He did not produce carbon copy of the said bill. He could not state as to whom he had issued the duplicate bill. He stated that original register of sale and purchase and bill book were stolen on 02.07.2013.
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50. However, FIR No. 230/2013 registered under Section 380/457/34 IPC at PS Bhajanpura regarding theft in shop of PW-3 Naresh Kumar does not mention that original bill book was stolen. It is not discernible as to on what basis he had issued the duplicate bill pertaining to Maxx MQ 340 Ex.PW1/B in the name of the complainant. It is relevant to note that the complainant stated that he never went to the shop to get duplicate bill of Micromax. PW-5 B.C. Vasisht stated that bill Ex.PW5/A pertaining to Nokia X201 was issued from his shop. However, he did not bring the original bill book. He did not produce any record pertaining to sale of the said mobile phone.
51. The complainant, in his evidence, did not identify the driver of TSR. He did not attribute any role to the accused persons except the accused Gulshan. He stated that police has not shown TSR to him for identification.
52. The evidence of the complainant is not reliable. The evidence of the complainant is not corroborated by any independent evidence.
53. As regards identification of the accused persons, the complainant, in the complaint Ex.PW1/A, did not mention registration number or any other distinctive feature of TSR. He did not mention any description of the offenders. The accused persons were arrested on 10.04.2013. According to the complainant, he went to PS Kashmere Gate to receive copy of FIR on 12.04.2013. It is relevant to note that PW-11 SI Jai Prakash filed application for Test Identification Parade (TIP) of the accused persons on 15.04.2013. Test Identification Parade (TIP) of the accused persons was conducted on 15.04.2013.
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54. PW-4 Ct. Sudhakar Shinde stated that they had photograph of one of the accused persons. Therefore, refusal of the accused persons to join Test Identification Parade (TIP) is not without reasonable excuse.
55. There are material defects in the investigation of the case. PW-11 SI Jai Prakash did not collect CCTV footage of Metro Station, Kashmere Gate to ascertain presence of the complainant and the accused persons at the relevant time. He did not collect Call Detail Records (CDR) and location of mobile numbers of the accused persons to ascertain their presence at the place of incident or Sarai Kale Khan at the relevant time.
56. The prosecution has not examined MHC(M) to prove that the said mobile phones were deposited in sealed condition with him. There is no evidence that the said mobile phones were not tampered during the time they remained in police malkhana. PW-4 Ct. Sudhakar Shinde stated that PW-11 SI Jai Prakash handed over seal after use to HC Ram Dayal whereas PW-10 HC Raj Kumar stated that PW-11 SI Jai Prakash handed over seal to him at the place of recovery. PW-11 SI Jai Prakash stated that he handed over seal after use to PW-10 HC Raj Kumar. The prosecution has not proved complete chain of custody to prove that the sealed parcels were not tampered from the time of recovery till their production before the Court. The said mobile phones are easily available in market. It is relevant to note that the complainant, in the complaint Ex.PW1/A, did not mention IMEI number of the said mobile phones. The prosecution has not proved CDRs of the mobile numbers subscribed to the complainant to prove that the said mobile phones were used by the complainant at the relevant time.
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57. On holistic and conjoint reading of the prosecution case, it is evident that the evidence of the complainant is not reliable.
58. The evidence of the complainant is replete with contradictions, omissions and improvements as to the number of the offenders, manner of the incident, non-reporting of the incident from Sarai Kale Khan to ISBT, user of mobile phones Ex.P1 and Ex.P2 and identification of the accused persons.
59. There are material defects in the investigation pertaining to the presence of the complainant and the accused persons at the place of incident and Sarai Kale Khan, seizure and preservation of mobile phones and use of mobile phones by the complainant.
60. In the presence of such material contradictions, omissions, improvements in the prosecution evidence and defects in the investigation, this Court is of the considered opinion that the prosecution witnesses are unreliable and the case of the prosecution is shrouded with suspicion and cannot be held proved beyond reasonable doubt.
CONCLUSION:
61. Accordingly, the accused persons are acquitted from offences under Section 365/34 IPC and 395 IPC.
62. The accused Gulshan @ Raju Langra @ Sohel @ Imran, Monu and Shahrukh are acquitted from offence under Section 412 IPC. Digitally signed by SANJAY
63. File be consigned to record room. SANJAY SHARMA SHARMA Date:
2023.10.13 10:55:07 +0530 Announced in the open Court SANJAY SHARMA-II on this 12th October, 2023 DJ (Commercial-11) (Central) Tis Hazari Courts, Delhi FIR No. 81/2013 State vs. Nitin Kashyap & Ors. Page No. 25 of 26 State vs. Nitin Kashyap & Ors.
CNR No.: DLCT01-000306-2013 SC No. 27424/2016 FIR No. 81/2013 Under Section 365/395/412 IPC PS Kashmere Gate 12.10.2023 Present : Mr. Amit Dabas, Ld. Addl. PP for the State (through Video Conferencing).
Mr. P.K. Garg, Advocate for the accused, namely, Monu.
The accused persons, namely, Nitin Kashyap, Rahul Sharma @ Upender and Monu are present.
The accused persons, namely, Shahrukh and Gulshan are produced from JC.
Vide separate judgment announced in the open Court, the accused persons are acquitted from offences under Section 365/34 IPC and 395 IPC. The accused Gulshan @ Raju Langra @ Sohel @ Imran, Monu and Shahrukh are acquitted from offence under Section 412 IPC. The accused persons are admitted to bail on furnishing personal bond in the sum of Rs. 10,000/- each, as required under Section 437A Cr.P.C. The concerned Jail Superintendent is requested to send personal bond of the accused, namely, Gulshan @ Raju Langra @ Sohel @ Imran and Shahrukh to the Court. A copy of order be sent to the concerned Jail Superintendent for information and compliance. File be consigned to record room.
Digitally signed SANJAY by SANJAY
SHARMA
SHARMA Date: 2023.10.13
10:55:24 +0530
Sanjay Sharma-II
DJ (Commercial-11)
Central, THC, Delhi
12.10.2023
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