Delhi District Court
State vs . Parveen Kumar @ Pappu Etc. Fir No. : ... on 6 September, 2022
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IN THE COURT OF MR. NEERAJ GAUR : ASJ-05 : NORTH-
WEST : ROHINI COURTS/DELHI
In the matter of :-
(Sessions Case No.51638/2016)
CNR No.DLNW010000632012
FIR No. : 165/2012
Police Station : Rani Bagh
STATE
Versus
(1) Manjeet
S/o Sh. Surat Singh
R/o Vikash Nagar, Line Paar,
Bahadurgarh, Haryana - (Proceedings Abated Since Expired)
(2) Parveen Kumar @ Pappu
S/o Sh. Kartar Singh
R/o C-332 Nehru Vihar, Delhi
(3) Raj Kumar
S/o Sh. Vishambhar Dayal
R/o D-4/118 Sec-20 Rohini, Delhi
(4) Sanjay @ Tola
S/o Sh. Ramesh Kumar
R/o Gali No.3, Shakur Garden,
Line Paar Bahadurgarh Haryana
(5) Pawan Kapoor
S/o late Sh. Kailash Nath Kapoor
R/o B-1, Third Floor, Gali No.1,
Hardev Nagar Jharoda Dairy, Delhi
State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012
Page 1 of 40
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(6) Rahul
S/o Sh. Sudesh
R/o Hari Ngar, Near Telephone Exchange, Gali No.2
Line Paar Bahadurgarh, Haryana
......Accused persons
Date of institution : 26.09.2012
Date of final arguments : 08.07.2022, 12.08.2022 &
18.08.2022
Judgment Pronounced on : 06.09.2022
: Accused Sanjay and Rahul
Decision convicted u/s 394 IPC;
Accused Raj Kumar, Sanjay,
Rahul, Pawan Kapoor and Parveen
convicted u/s 411 IPC;
All accused persons acquitted of
the remaining charges.
JUDGMENT
PROSECUTION CASE
1. On 29.05.2012, a complaint was made by Mehul Parmar who stated that he was working with M/S Antariksh Creations, Mumbai. The complainant was looking after the sales of jewelery articles at Delhi at Karol Bagh office. On 29.05.2012, complainant received a call on his mobile phone from an unknown caller namely Ramesh. He stated that he was having a jewelery showroom at Wedding Mall, Saraswati State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 2 of 40
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Vihar and he wanted to see the jewelery of the complainant's company. On this call, the complainant alongwith another salesman Ravinder Joshi reached near the Wedding Mall with a bag full of jewelery. Complainant then called on the mobile phone of the caller Ramesh but the complainant was instructed to move further from the Wedding Mall. When complainant was walking towards the path, 3 boys came from behind and gave beatings to the complainant with butt of pistols. The complainant fell down and those boys snatched the bag and ran away in a Santro Car.
THE INVESTIGATION
2. On 30.05.2012, accused Parveen @ Pappu was arrested by officials of PS South Rohini u/s 41.1 (D)/102 CrPC. He confessed that he had committed the above robbery alongwith his associates namely Raj Kumar, Manjeet, Rahul and Sanjay @ Tola. On 31.05.2012, SI Manoj Kumar of PS South Rohini further arrested accused Sanjay @ Tola, Rahul, Manjeet and Raj Kumar, in FIR No.105/12 u/s 412/482/34 IPC and 25/27 Arms Act. The said accused persons confessed to have committed the robbery of the present case. The State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 3 of 40
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accused persons were formally arrested in the present case. TIP of accused Manjeet, Sanjay and Rahul was conducted and accused Manjeet and Rahul were identified by the complainant as well as by the salesman Ravinder Joshi. Accused Sanjay @ Tola refused for TIP. Accused Pawan Kapoor was also arrested and some stolen jewelery articles and jewelery bags were recovered from him. The recovered case properties were identified during judicial TIP.
3. It is alleged that accused persons made a plan to commit the robbery.
Accused Manjeet bought a new SIM on 29.05.2012. All the accused persons initially gathered at Gurudwara Road Karol bagh. From there, accused Pawan Kapoor made the phone call to the complainant asking him to come near the Wedding Mall. Accused Manjeet, Rahul and Sanjay attacked the complainant and committed the robbery. Accused Parveen @ Pappu was sitting in the car nearby the place of robbery and accused Raj Kumar and Pawan Kapoor were keeping a watch nearby the place of robbery. After the robbery, the jewelery was distributed.
State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 4 of 40
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4. On completion of investigation, charge-sheet u/s 395/397/412/120B IPC was filed against the six accused persons. CHARGE
5. Vide order dated 16.01.2013, charges u/s 120B/395/394/397 IPC were framed against all the 6 accused persons. Charge u/s 25/27 Arms Act were separately framed against accused Raj Kumar, Sanjay @ Tola, Rahul and Manjeet. Separate charges u/s 412 IPC were framed against accused Raj Kumar, Sanjay @ Tola, Rahul, Pawan Kapoor and Manjeet. Vide order dated 24.11.2015, charge u/s 412 IPC was framed against Parveen @ Pappu. The accused persons pleaded not guilty and claimed the trial.
PROSECUTION EVIDENCE
6. To prove the charges, the prosecution examined total 27 witnesses. Material/Public Witnesses
7. PW-1 Sh. Mehul Kishore Parmar supported the prosecution case. He interalia deposed that on 29.05.2012, he received a call from one State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 5 of 40
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Ramesh who showed interest in purchasing the jewelery and asked the complainant to come to Wedding Mall. On reaching inside the Wedding Mall, the said Ramesh asked the complainant to come out of the Wedding Mall and move further. While the complainant was walking ahead of the Wedding Mall, the accused Manjeet hit PW-1 with his hand on the backside of his head and took out a gun and hit PW-1 with the butt of the gun. PW-1 further deposed that accused Rahul and Sanjay were also carrying guns and attacked him with fists and kicks. When Ravinder came to rescue PW-1, accused Sanjay pointed out this gun towards Ravinder and threatened him not to intervene. The 3 accused took away the bag containing the jewelery and fled away in an I-10 car No.DL 4 CA 9093. PW-1 deposed that the bag was containing 167 pieces of jewelery including finger rings, pendants, solitaire rings, bengals, bracelets, etc. PW-1 proved his complaint as Ex.PW-1/A. PW-1 identified the accused Pawan Kapoor as the person whom he had met at the shop Sia Jewellers. He stated that the said shop was situated in Karol Bagh where PW-1 had gone 4-5 days prior to the incident to show jewelery to the owner of the said shop namely Shashi. He deposed that accused Pawan Kapoor State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 6 of 40
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was present at the said shop at that time and he took the visiting card of the firm of the complainant. The TIP proceedings of accused Rahul and Manjeet were proved as Ex.PW-1/B & C. The TIP proceedings of the black bag as well as jewelery articles are Ex.PW- 1/C. PW-1 further identified 157 pieces of recovered jewelery articles as Ex.P2. He also identified the I-10 car in which the accused persons fled away from the spot.
8. PW-4 Sh. Ravinder Kumar Shanti Lal Joshi also supported the prosecution case regarding the incident of 29.05.2012 and stated that he went to the Wedding Mall alongwith PW-1 Mehul Kumar. He stated that when he tried to rescue Mehul Kumar, one of the assailants pointed out a pistol and threatened to kill him. He identified accused Manjeet, Rahul and Sanjay as the three attackers who all were armed with pistols. PW-4 further stated that two days prior to the incident, on the call of one Shashi, he alongwith PW-1 Mehul Kumar went to the shop of Shashi in the name of Sia Jewels at Bedanpura to show jewelery. There accused Pawan met in the shop and took their visiting card. He proved the TIP proceedings of State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 7 of 40
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accused Manjeet and Rahul as Ex.PW-4/A & B. He also identified the recovered bag and the jewelery articles.
9. PW-5 Sh. Sanjeev Solanki deposed that he was running a shop and on 29.05.2012 he had sold one SIM card No. 9540897900 to one customer with an election ID Card in the name of Vipin Kumar. The copy of CAF and election ID Card were marked PW-5/A. PW-5 did not identify accused Manjeet as the person who had purchased the above SIM on the ID of any Vipin Kumar.
10. PW-6 Sh. Vipin Kumar deposed that on 13.07.2012, he went to PS Rani Bagh where the police showed him the copies of voter ID Card and CAF marked as PW-5/A & B. He stated to the police that the photocopies were that of his election ID Card but the CAF was not signed by him. He stated that he never purchased the above SIM or furnish his ID proofs.
11. PW-7 Sh. Kirti Maurya deposed that he had let out a shop in Gali No.36 Bedanpura, Karol Bagh to Shashi 4 years ago. Shashi started State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 8 of 40
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his jewelery business and the shop remained in his possession for about 5-6 months. PW-7 identified accused Pawan Kumar as a person who used to visit the tenant Shashi at his shop.
12. PW-14 Sh. Sunil Kumar @ Shashi partly supported the prosecution case and deposed that he was running the jewelery shop at Bedanpura Karol Bagh. Accused Pawan Kapoor was known to him for a long time. PW-14 permitted Pawan Kapoor to sit in his shop and work with him on commission basis. PW-14 had dealings with Antariksh Jewellers through his employees Mehul Parmar and Ravinder Joshi. 4-5 days prior to 31.05.2012, Mehul and Ravinder showed jewelery articles to him at his shop. He did not say with certainty if accused Pawan Kapoor was present in the shop at that time or not.
13. PW-10 Sh. Dhuda Lal Khoob Chand Vora deposed that he was owner of Antriksha Jewels having a branch at Karol Bagh. He had 2 employees namely Mehul Parmar and Ravinder Joshi at the said branch who used to receive orders and show samples to the parties. On 29.05.2012, the said 2 employees left alongwith 167 pieces of State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 9 of 40
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diamond studded gold jewelery to an address given by the prospective buyer/party who were looted/robbed. He obtained the jewelery articles on superdari vide handing over memo Ex.PW-10/A.
14. PW-20 Sh. Bihari Lal is a formal witness being the owner of I-10 car who took the said car on superdari.
Police witnesses
15. PW-2 HC Dharamveer Singh was the Duty Officer who registered the present FIR Ex.PW-2/A.
16. PW-9 WSI Susheela was posted as Duty Officer on 29.05.2012. She deposed of receiving wireless information of a Santro car No. DL 4 CA 9093 in which the accused persons have run away after snatching. She recorded the DD No.29A Ex.PW-9/A. State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 10 of 40
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17. PW-3 Insp. Dheeraj Narang was the SHO of PS Rani Bagh on 29.05.2012 who reached at the spot on receiving the information and flashed the wireless message to the Control Room.
18. PW-12 SI Kuldeep Singh is the initial IO of the case and PW-16 Ct.
Ravinder Singh accompanied PW-12 to the spot on 29.05.2012. They deposed that on 29.05.2012, PW-12 recorded the complaint Ex.PW- 1/A and prepared a tehrir Ex.PW-12/A.
19. PW-19 Ct. Jyoti was posted at PS Rani Bagh on 31.05.2012 and working as DD Writer. She recorded DD No.40A Ex.PW-19/A in respect of information received from PS South Rohini of arrest of Parveen @ Pappu. On 01.06.2012, she recorded another information received from PS South Rohini regarding arrest of accused Sanjay @ Tola, Rahul, Manjeet and Raj Kumar in FIR No.105/12 PS South Rohini vide DD No. 45 Ex.PW-19/B.
20. PW-13 Ct. Satyender from PS Rani Bagh joined the investigation with the IO/Insp. Manoj Kumar on 07.06.2012. He deposed that State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 11 of 40
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accused Pawan led the police party to a flat at H. No.B-1 Gali No.1 Hardev Nagar Jhadoda, Burari. From inside an iron almirah, accused Pawan Kapoor took out a leather bag and one pottli that was containing ornaments/jewelery i.e. 1 pendant, 1 pair of eartops, 2 rings and another pendant. The said articles were seized vide memo Ex.PW-13/A. He identified the bag as Ex.P1 and the jewelery articles as Ex.PW-13/Z.
21. PW-18 HC Vinod Kumar joined the investigation on 03.06.2012. He deposed about the pointing out of a motorcycle parked in front of H. No. B-1, Gali No.1 Hardev Nagar, Burari as belonging to accused Pawan Kapoor on which motorcycle accused Raj Kumar alongwith Pawan Kapoor reached at the spot on 29.05.2012 to commit the present offence. The seizure memo of the motorcycle is Ex.PW-18/A. PW-18 further deposed of collecting the case property from the malkhana of PS South Rohini and depositing the same at PS Rani Bagh. He further deposed about taking the case property from the malkhana to the court for the purpose of TIP thereof. State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 12 of 40
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Officials of PS South Rohini
22. PW-22 SI Sudhir Rathi, PW-23 Ct. Mahipal and PW-24 Ct. Naresh are the officials of PS South Rohini. They deposed that on 30.05.2012 on receipt of a secret information in respect of the present FIR, a raiding party was constituted. Accused Parveen @ Pappu was arrested. From his general search, 2 pairs of kada/ bangals, 5 pendants and 2 pairs of earrings were recovered which were seized vide seizure memo Ex.PW-22/A. Accused Parveen @ Pappu was arrested vide kalandra Ex.PW-22/B. The jewelery articles recovered from Parveen were identified through photographs Ex.PW-22/1.
23. PW-11 SI Mohd. Imtiyaz Alam deposed that on 31.05.2012 he was posted at PS South Rohini and was checking vehicles at picket with other police officials. A secret information about arrival of an I-10 car was received that was suspected to be with 5 persons who had committed robbery 2 days ago. At about 12:25 PM, an I-10 car No. DL 4 CA 9093 came and it was signaled to stop. One of the 5 persons sitting in the said car took out a revolver and brandished the same in State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 13 of 40
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air. He was over powered and all 5 persons were apprehended. They were Manjeet, Manish, Rahul, Raj Kumar and Sanjay. On their search, one country-made pistol with a cartridge was recovered from each of the accused. Accused Raj Kumar, Rahul, Manjeet and Sanjay were found with pouches of jewelery articles that were taken into police possession. The said I-10 car was also reportedly stolen from Bahadurgarh and the car was having a fake No. plate. The No. plate was seized vide memo Ex.PW-11/A and the car was seized vide memo Ex.PW-11/B. The jewelery articles 31 in number recovered from accused Raj Kumar, 33 in number recovered from accused Rahul, 31 in number recovered from accused Sanjay and 46 in number recovered from accused Manjeet, were seized vide memos Ex.PW-11/C-F. PW-11 proved the said recovered jewelery articles through photographs as Ex.P11/1 - P11/4.
24. PW-27 ASI Ramesh Kumar brought the Register No.19 & 21 of PS South Rohini of the year 2012. He proved the relevant entries made in the said register as Ex.PW-27/A-E. State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 14 of 40
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25. PW-26 Sh. Shailender Kumar, Ahlmad brought the case file of case titled as State Vs. Manish & Ors. FIR No.105/12 PS South Rohini. He proved various documents from the said judicial file including the copy of FIR (Ex.PW-26/A), seizure memo of No. plate of vehicle DL4 CA 9093 (Ex.PW-11/A), seizure memo of I-10 car (Ex.PW- 11/B), seizure memo of revolvers and cartridge as Ex.PW-26/B-I. He further proved the personal search memo of the accused persons in the said case. He further proved the seizure memos of the jewelery articles as Ex.PW-11/C-F.
26. PW-21 SI Manoj was posted at PS South Rohini on 31.05.2012 and the further investigation of case FIR No. 105/12 was assigned to him. He deposed about the arrest of accused Raj Kumar, Manjeet, Rahul, Manish and Sanjay and about their confessional statement of the present FIR. He deposed that the information was given to the IO/Insp. Manoj Kumar of the present case to whom the photocopies of the relevant documents were handed over.
State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 15 of 40
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Other Witnesses
27. PW-8 Sh. Pawan Singh was the Nodal Officer, Idea Cellular Ltd. He proved the CAF, ID proof and CDR of mobile No.9990153358 belonging to Parveen Kumar. He further proved the CAF, ID proof and CDR of mobile No.8750973700 belonging to one Kailash Chand. He further proved the CAF, ID proof and CDR of mobile No.9540897900 belonging to Vipin Kumar. He also proved the Cell Tower location ID Chart as Ex.PW-8/C.
28. PW-15 Sh. Sidharth Mathur who was posted as MM at the relevant time proved the TIP proceedings of accused Rahul, accused Manjeet and accused Sanjay. Accused Rahul and Manjeet were correctly identified by the witness Ravinder Joshi during the TIP proceedings. Accused Sanjay @ Tola refused to participate in the TIP.
29. PW-17 Dr. Prachi Arora deposed that on 29.05.2012 she medically examined Mehul Parmar vide MLC Ex.PW-17/A. State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 16 of 40
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30. PW-25 Insp. Manoj Kumar is the IO of the present case who deposed about various steps taken by him during investigation of the present case. He proved the various documents prepared by him including the site plan Ex.PW-25/A, application for interrogation of arrest of accused persons and recording their disclosure statements. He deposed about receiving of information from PS South Rohini regarding arrest of several persons and about their formal arrest and interrogation in the present case. He proved his various applications for the TIP of the accused persons.
STATEMENT OF ACCUSED AND DEFENCE
31. The entire incriminating evidence was put to the accused persons u/s 313 CrPC. The accused persons denied the evidence and claimed that they were falsely implicated. Both of the accused persons opted to lead the defence evidence. No DE was lead and DE was closed on 11.03.2020.
State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 17 of 40
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ARGUMENTS AND FINDINGS
32. at the outset, it may be noted that accused Manjeet expired during the trial on 03.03.2015 and proceedings against him were abated vide order dt. 13.07.2015.
33. The relevant sections/provisions with which the accused persons have been charged are reproduced herein below :-
a) Section 390 IPC - 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. 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.
b) Section 394 IPC Voluntarily causing hurt in committing robbery.
--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
c) Section 397 IPC - 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 State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 18 of 40
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person, the imprisonment with which such offender shall be punished shall not be less than seven years.
d) Section 120B IPC Punishment of criminal conspiracy.-- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]
e) Section 412 IPC- Dishonestly receiving property stolen in the commission of a dacoity.--Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
f) Section 25 Arms Act provides for punishment for being in possession of arms or firearms in contravention of Section 5 of the Arms Act.
g) Section 27 Arms Act provides for the punishment for using any arms or ammunition in contravention of Section 5 of the Arms Act.
34. It is submitted by Ld. Defence counsels that the identity of the accused persons has not been proved by the prosecution. The complainant as well as PW Ravinder Joshi deposed that the complainant was allegedly robbed by 3 persons and the complainant stated in the complaint Ex.PW-1/A that he could identify the said 3 persons. It implies that only 3 persons committed the robbery. It is State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 19 of 40
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submitted that the police initially apprehended accused Parveen Kumar and recorded his confession disclosing the names of Raj Kumar, Manjeet, Rahul and Sanjay. It is argued that the officials of PS South Rohini thereafter lodged a fake FIR No.105/12 and arrested accused Sanjay, Manjeet, Raj Kumar and Rahul in that case. In the court, PW-1 identified only accused Manjeet, Rahul and Sanjay as the persons who committed the robbery. He did not state about the presence of any other person at the spot except the said 3 persons. The other eye-witness namely PW-4 Ravinder Kumar Joshi also stated that there were 3 robbers and no other accused person was present at the spot. It is argued that to show the presence of all the accused persons at the spot, there is only their confessional statements which is inadmissible in evidence.
35. It is further submitted that the prosecution has proposed to prove that accused Manjeet had purchased one mobile phone No.9540897900 from the shop of Sh. Sanjeev Solanki (PW-5) in the fake name and on fake documents of Vipin Kumar (PW-6). PW-5 although stated that he had sold the said mobile phone No. to one customer but he State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 20 of 40
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did not identify the accused Manjeet as the said customer. Even during cross-examination on behalf of State, PW-5 denied that on 14.08.2012, he had come to the court or that he had identified accused Manjeet in police custody. It is argued that the said mobile No. could not be linked with accused Manjeet. Consequently, the CDR of the said mobile phone proved by the prosecution is of no consequence. Any link of this mobile phone No. through conversations with other two mobile phone numbers is again of no consequence. The other accused persons cannot be linked with the present offence through any kind of mobile conversation.
36. It is further argued on behalf of the accused persons that in absence of any proof of commission of robbery by five or more persons, charge u/s 395 IPC & u/s 412 IPC cannot be proved.
37. On the other hand, Ld. APP for the State argued that PW-1 as well as PW-4 clearly identified the accused Manjeet, Rahul and Sanjay as the persons who committed the robbery. Accused Manjeet and Rahul were also identified during the judicial TIP whereas accused Sanjay State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 21 of 40
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refused for his TIP. It is submitted that accused Manjeet purchased the mobile phone No.9540897900 in the name of Vipin Kumar. As per the CDR, his location was at East Park Road Karol Bagh on 29.05.2012 at 01:26:09 PM. The location of this mobile phone is of Saraswati Vihar Garg Plaza on that day at 02:40:27 PM. Similarly, the location of mobile phone No.9990153358 in the name of accused Parveen Kumar on 29.05.2012 is of Bank Street Karol Bagh at 12:09:15 PM. This location remained of Karol Bagh area till 03:07:46 PM. The location changed to Rohini Sector -3 at 03:23:26 PM. From this mobile number, some calls have been made and received on the third mobile phone No. 8750973700. This mobile number 8750973700 in the name of Kailash Chand has its location on 29.05.2012 at 01:21:42 PM at Bank Street Karol Bagh and its location changed to Budh Vihar phase- 1 at about 02:50:01 PM. It is argued that the locations of these 3 mobile numbers is of Karol Bagh at about 12 - 1 PM. It changed to the location of the spot of robbery nearly at the same time when the robbery was committed. It is argued that there is a clear nexus between these 3 numbers. One number has been linked with accused Parveen Kumar. It is argued that the State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 22 of 40
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circumstance of being in the same location of Karol Bagh and of Rohini area near about the same time leads to the inference that 3 persons were chasing the victims from Karol Bagh in order to commit the robbery. It is argued that accused Pawan Kapoor was the informer to other accused persons regarding the carrying of the jewelery by the victims. All the accused persons conspired to rob the victims.
38. Ld. Defence Counsels argued that as per the prosecution's own case, PW-1 received a call at 01:30 PM. Acting upon this call, PW-1 proceeded for Rani Bagh. It shows that it was not a case of chasing PW-1 from Karol Bagh to Rani Bagh on the basis of any information about PW-1 carrying any kind of jewelery. It is argued that if it is presumed that the accused persons had conspired to rob PW-1 by calling him in Rani Bagh alongwith the jewelery, there was no necessity for them to be in the Karol Bagh area first and from there to proceed to Rani Bagh. It is argued that the prosecution is trying to mix up the facts just to mislead and confuse the court. It is reiterated State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 23 of 40
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by Ld. Defence counsels that the CDRs of the mobile phone is not establishing any link with the crime.
39. I have considered the submissions regarding the identification of the accused persons. As per the prosecution case, the actual robbery was committed by 3 accused persons namely Manjeet, Rahul and Sanjay. All three of them have been identified by the complainant/PW-1 as well as the eye witness/PW-4. PW-1 categorically stated when he was walking further from the Wedding Mall, accused Manjeet hit him from backside on his hand and he took out a gun and hit him with the butt of the gun on his forehead and his face. PW-1 further pointed out towards accused Rahul and Sanjay and stated that they gave him fist and leg blows and were carrying guns. In the extensive cross- examination of PW-1, his testimony could not be shaken qua the identity of aforesaid 3 accused persons. PW-1 also proved the TIP proceedings of accused Rahul and Manjeet as Ex.PW-1/B & C respectively in which the accused Rahul and Manjeet were identified. The accused Sanjay refused his TIP and adverse inference may be drawn against him. PW-4 fully corroborated the version of PW-1 State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 24 of 40
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regarding the incident and he also independently identified accused Manjeet, Rahul and Sanjay in the court. In my opinion, the identity of these 3 accused persons has been established by the prosecution beyond reasonable doubts.
40. Now I will examine the involvement of other accused persons. The prosecution has relied upon the CDRs and mobile location of 3 mobile numbers to show that the accused Parveen with mobile No.9990153358 and Manjeet with mobile No. 9540897990 were in the area of Karol Bagh during 12:00 - 01:00 PM. The third mobile phone No. 8750973700 in the name of one Kailash Chand was also located in the same area and was used by another accused. The location of these three mobile phones changed to Rohini/Budh Vihar area near about the time of incident of 02:45 PM. These three mobile phone numbers were in touch with each other. The prosecution case is that the accused persons were chasing the complainant right from the Karol Bagh area and committed robbery near Wedding Mall. State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 25 of 40
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41. First of all, the prosecution could not establish that the accused Manjeet was using the mobile No.95408979300. The prosecution witness No.5 Sh. Sanjeev Solanki did not support the prosecution case that accused Manjeet purchased the said number from the shop of PW-5 in the fake name of Vipin Kumar. PW-5 did not identify the accused Manjeet as the said purchaser. He also did not identify accused Manjeet in the court. Therefore, the said mobile No. cannot be linked with accused Manjeet and the location of this mobile phone is of no significance. Another mobile phone No.8750973700 has been proved in the name of one Kailash Chand. It could not be proved on record as to any accused person was using this mobile phone. The third mobile phone No.9990153358 is of accused Parveen. Simply on the basis of change of location of the mobile phone, no liability can be fastened with accused Parveen. Moreover, the location of this mobile phone was of Karol Bagh area till 03:07 PM whereas the incident occurred at 02:45 PM. The evidence based on mobile phone numbers and their locations is too feeble to link the other accused persons with the crime.
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42. It was further rightly argued by Ld. Defence Counsel that if the accused persons have planned to call the complainant to Rohini/Budh Vihar area for committing the robbery, there was no necessity to be first in the Karol Bagh area and to chase the complainant from there.
43. The prosecution has further relied upon the recoveries of stolen articles from accused persons and it is submitted that a presumption may be drawn against the accused persons of having conspired to commit the robbery and of having received the stolen properties with the knowledge that these are stolen properties.
44. I have considered the submissions and gone through the record. The prosecution has not been able to prove that the accused Manjeet, Sanjay and Rahul were in contact with the other 3 accused persons. The recovery of some stolen properties from the accused persons were effected on 31.05.2012 i.e. two days after the incident. A presumption u/s 114 illustration A can be raised if a person is found in possession of stolen goods soon after the theft. The recoveries made in the present case cannot be considered as being made soon State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 27 of 40
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after the theft. Therefore, the presumption u/s 114 cannot be raised against accused Parveen, Rajkumar and Pawan Kapoor.
45. Ld. Counsel for accused Pawan Malhotra further argued that the prosecution has relied upon a witness Shashi to prove that the accused Pawan Kapoor was present in his shop when the complainant Mehul and Ravi Joshi visited his shop 4-5 days prior to the incident for showing some jewelery articles. The said witness when examined as PW-14 did not support the prosecution case and denied that on that day, accused Pawan Kapoor was present in his shop. He further denied that on the day of incident i.e. 29.05.2012 accused Pawan Kapoor left his shop at about 01:15 PM and he did not come back. It is argued by Ld. Defence Counsel that the entire prosecution story has been demolished by PW-14.
46. In this regard, Ld. APP for the State argued that PW-14 deposed accused Pawan Kapoor used to work with him in his jewelery shop and was permitted by PW-14 to work with him. It is argued that Pawan Kapoor acquired the knowledge while sitting in the shop of State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 28 of 40
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PW-14 that the complainant had precious jewelery to be sold. He shared this information with other accused persons and hatched the conspiracy to commit the robbery.
47. I have considered the submissions. PW-14 did not support the prosecution case and it could not be proved that accused Pawan Kapoor was present in the shop of PW-14 when the complainant visited his shop 4-5 days prior to the incident. Only because accused Pawan Kapoor used to visit the shop of PW-14, it cannot be presumed that he entered into any conspiracy to loot the complainant.
48. Ld. Counsel for accused Pawan Kapoor further argued that admittedly, accused Pawan Kapoor surrendered in the court on 07.06.2012 (as deposed by PW-25/IO). Thereafter, IO has shown recovery of a bag containing stolen articles from the house of accused Pawan Kapoor. IO further admitted that the house was not locked and it was opened simply by pushing. It is argued that if the accused did possess any stolen articles then why he would continue to keep those articles in his house before surrendering. It is submitted State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 29 of 40
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that no public person was a witness to the recovery which creates a doubt as regards the recovery of stolen articles.
49. As already discussed, from the recovery of stolen articles after a lapse of considerable time, it cannot be gathered that the robbery was committed in furtherance of any conspiracy.
50. From the discussion made herein above, it can be concluded that the prosecution has been able to prove that the accused Manjeet, Sanjay and Rahul committed the robbery. It is further proved that all three of them caused hurt to the complainant in order to commit the robbery.
Charges u/s 394 IPC have been proved against the said 3 accused persons. However, the evidence of remaining accused persons being in conspiracy for the said robbery is insufficient.
51. I will now examine the charge u/s 412 IPC framed against the accused persons.
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52. Ld. Defence counsels argued that PW-11 did not join any public person at the time of the raid. The secret information was not reduced into writing. It is argued that in absence of any independent witness, the alleged recoveries are doubtful.
53. Ld. counsel for accused Parveen further argued that PW-22 SI Sudhir Rathi and other officials allegedly apprehended the accused Parveen on the basis of the secret information on 30.05.2012 and allegedly recovered 5 pendants and 2 pair of earrings from his pocket. It is argued that he had also not reduced the said secret information into writing. PW-22 admitted that he had not conducted any raid at the residence of the accused Parveen to find out other jewelery articles and he has not assigned any reason therefor. It is argued that the story of secret information has been concocted and the case property has been planted on the accused Parveen.
54. Ld. Counsel for accused Pawan Kapoor similarly argued that if he was retaining any stolen property, there was no reason for him not to dispose off the stolen property before surrendering on 07.06.2012. It State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 31 of 40
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is argued that the recovery has been made from an open house and in absence of independent public witness, the recovery becomes doubtful.
55. Ld. APP for the State argued that after any serious incident of robbery, the entire information network is mobilised. It is submitted that it is common knowledge that public persons are reluctant to become a witness. Absence of public witnesses perse does not make the recovery doubtful.
56. I have considered the aspect of absence of public witnesses at the time of recoveries made from the accused persons. It is settled proposition of law that recovery does not invariably becomes doubtful for want of independent public witnesses. Joining public witnesses during investigation is not an absolute rule of investigation though it may be a rule of prudence. It is also common knowledge that the members of public are reluctant to be a part of the police investigation unless they have some direct connection with the crime. The recoveries made by the police officials can also not be doubted State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 32 of 40
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only because the same is made by police officials as police officials are as reliable as any member of the public.
57. The precondition for applicability of Section 412 IPC is that the property involved is obtained by commission of dacoity. To make out a case for dacoity, robbery must be committed conjointly by 5 or more persons. In the case in hand, the identity of only 3 accused persons has been proved who have committed the robbery. Therefore, the case will not fall under Section 412 IPC. Under Section 411 IPC, which is the minor offence, the offence is for receiving or retaining any stolen property with the knowledge or believe the same to be stolen property. PW-11 SI Mohd. Imtiyaz deposed that accused Manjeet, Rahul, Raj Kumar and Sanjay were apprehended while their I-10 car was stopped at a barricade on 31.05.2012. PW-11 proved the seizure memo of the jewelery articles respectively recovered from these four accused persons as Ex.PW-11/C- F. He further identified the case properties in the court that were respectively recovered from the said accused persons. PW-22 SI Sudhir Rathi alongwith PW-23 and PW-24 have further proved the recovery of stolen articles State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 33 of 40
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Ex.PW-22/1 from accused Parveen on 30.05.2012. The prosecution has also proved the case property in the court. The ownership of the properties has been proved through PW-1. PW-10 Sh. Dudha Lal Khoob Chand Bohra further proved the stolen properties in the court as the property owned by him and given to his employees i.e. PW-1 & PW-4 for the purpose of sale. None of the accused persons have claimed ownership of the said properties nor they have accounted for the possession. It may be presumed from the facts and circumstances that they have received or retained properties knowing them to be stolen. Considering the circumstances in which the accused persons were apprehended, the absence of public witnesses at the time of recoveries is not found as a serious lapse of investigation.
58. In view of the above discussion, the charges to the extent of Section 411 IPC have been duly proved against all the accused persons.
59. As regards the charges u/s 25/27 Arms Act against accused Raj Kumar, Sanjay @ Tola and Rahul, it is argued by Ld. Defence Counsels that the said accused persons were allegedly found in State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 34 of 40
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possession of the arms on 31.05.2012 by officials of PS South Rohini. A separate case FIR No. 105/12 was registered at PS South Rohini in respect of the incident of 31.05.2012 and the said accused are already being tried in case FIR No.105/12 PS South Rohini. It is argued that the present incident of 29.05.2012 is distinct from the incident of 31.05.2012 and the charges u/s 25 Arms Act have been wrongly framed in the present case more so when the said accused persons are being tried separately for the said offence.
60. Ld. APP for the State submits that the pistols recovered from the said accused persons on 31.05.2012 were the same pistols as used at the time of robbery on 29.05.2012. The possession of the pistols from the said accused persons has been proved by several witnesses of PS South Rohini including PW-11 Mohd. Imtiyaz Alam. He submits that the charges u/s 25 Arms Act have been proved on record.
61. I have considered the submissions. First of all, the accused persons cannot be tried twice for the same offence. As per the charges, the accused persons have been charged u/s 25 Arms Act for being in State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 35 of 40
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possession of Arms on 31.05.2012 and not on 29.05.2012. For the possession of 31.05.2012, a separate FIR has been registered. I have also summoned the trial court record of case FIR No.105/12 PS South Rohini as per which, charges u/s 25 Arms Act have been framed and the case is still pending trial. So far as the second limb of arguments of Ld. APP that the arms recovered from the said accused persons on 31.05.2012 were the same arms used by them on 29.05.2012, I am of the view that the prosecution has miserably failed to prove the said fact. Neither PW-1 nor PW-4 were shown the said arms/pistols to be identified by them as the same pistols that were shown on 29.05.2012. The pistols have not been produced during the entire trial and have not even been identified by the PWs of PS South Rohini including PW-11 SI Imtiyaz Alam. There is no sanction on record u/s 39 Arms Act. In view of all these facts and circumstances, the charges u/s 25 Arms Act could not be proved on record.
62. Ld. APP for the State argued that PW-1 categorically deposed that accused Manjeet, Rahul and Sanjay were carrying guns at the time of State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 36 of 40
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incident. Accused Sanjay pointed out his gun towards Ravinder/PW-4 when he tried to intervene. It is argued that the fact of use of pistols/firearm by the accused persons at the time of committing the robbery is proved through the deposition of PW-1 & 4 and charges u/s 27 Arms Act have been proved against accused Manjeet (since deceased), Rahul and Sanjay.
63. In order to prove a charge u/s 27 Arms Act, it must be established that any arms or ammunition has been used in contravention of Section 5 of the Act. Section 5 proscribes the use of any firearm or other arms or ammunition without any license. It was incumbent on the prosecution to prove the identification of the weapon used at the time of the offence and to further prove that the weapon shown to PW-1 & 4 was a firearm within the meaning of Arms Act. The PW-1 & 4 although deposed that the accused persons showed a gun. However, this oral testimony is not sufficient to prove that the said gun was a firearm within the meaning of the Arms Act. The prosecution has failed to prove that the accused persons used any State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 37 of 40
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firearm at the time of committing the robbery. The charges u/s 27 Arms Act have failed.
64. I will now examine the charge u/s 397 IPC that has been framed against all the six accused persons by invoking Section 120B IPC. As already discussed, only accused Manjeet, Sanjay and Rahul have been proved to have committed the robbery and the evidence is insufficient to show that the remaining accused persons were a part of the conspiracy. Moreover, it is trite law that Section 397 IPC can be slapped only against the offender who has used any deadly weapon or has caused grievous hurt to any person. Therefore, the accused Parveen, Raj Kumar and Pawan Kapoor are liable to be acquitted u/s 397 IPC.
65. As regards the accused Manjeet, Sanjay and Rahul, PW-1 & 4 categorically deposed that all three of them were armed with guns. In Murlidhar Vs. State Crl. Appeal 279/2002 decision dt. 01.06.2018, the Hon'ble Delhi High Court held that the recovery of weapon is not necessary ingredient for a conviction u/s 397 IPC and the use of the State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012 Page 38 of 40
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same to threaten is sufficient. Still, to record a conviction under Section 397 IPC in the instant case, the prosecution must establish that the accused used any 'deadly weapon'. In Rakesh Vs. State of NCT of Delhi, Cr. A No.208/2003 decision Dt. 20.07.2010, the Hon'ble Delhi High Court discussed in detail the aspect of use of a deadly weapon. It was held in unambiguous terms that if the accused is not carrying a weapon or carrying a weapon which is not in a working condition and cannot cause any grievous harm or injury, it would not qualify and cannot be regarded as a deadly weapon within the meaning of section 398 IPC. In the case in hand, the prosecution could not prove on record that the 'gun', that was shown by the accused persons to put PW-1 & 4 under fear, was in fact a serviceable pistol as no pistol has been at all has been proved on record. In my considered opinion, the reasoning given by the Hon'ble High Court in Rakesh Vs. State (Supra) case will squarely apply to section 397 IPC. For want of any proof that the accused used a deadly weapon at the time of the offence, the case will fall short of Section 397 IPC. Therefore, no conviction under Section 397 IPC can be recorded against the accused.
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CONCLUSIONS ▪ In view of the conclusion drawn in para 50 of the judgment, accused Sanjay @ Tola and Rahul are held guilty and convicted u/s 394 IPC;
▪ Accused Raj Kumar, Sanjay @ Tola, Rahul, Pawan Kapoor and Parveen are also held not guilty u/s 412 IPC and are held guilty and accordingly convicted u/s 411 IPC; ▪ All the accused persons are acquitted of the charges u/s 395 r/w Section 120B IPC and u/s 397 r/w 120B IPC;
▪ All the accused persons are acquitted u/s 120B IPC; ▪ Accused Raj Kumar, Sanjay, Rahul are acquitted u/s 25 & 27 Arms Act;
▪ The proceedings already abated against accused Manjeet.
Announced in the Open Court (Neeraj Gaur)
On : 06.09.2022 ASJ05/NorthWest District
Rohini Courts/Delhi/06.09.2022
State Vs. Parveen Kumar @ Pappu etc. FIR No. : 165/2012
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