Delhi District Court
State vs . (1) Sunil @ Nanhe on 25 October, 2016
FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 72/14 State Vs. (1) Sunil @ Nanhe S/o Sh. Dharamvir R/o H. No. 5, Village Mubarakpur Dabas, Delhi. (2) Sunny @ Kala S/o Sh. Surinder Singh R/o VPO Mubarakpur Dabas, Delhi. (3) Vikas @ Vicky S/o Sh. Surender R/o H. No. 172, Village Mubarakpur Dabas, Delhi (proceedings against him abated vide order dated 19.09.2014). (4) Sonu @ Ravi S/o Sh. Ram Singh R/o H. No. 254, Village Mubarakpur Dabas Delhi. (5) Parvesh @ Sonu S/o Sh. Balbir Singh R/o Village Mubarakpur Dabas, Delhi. (6) Shashi S/o Sh. Krishan R/o A6, Surat Vihar, Mubarakpur Dabas, Delhi. State V/s Sunil @ Nanhe etc. Page 1 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 FIR No. : 72/09 Police Station : Aman Vihar Under Sections : 395/397/412/34 IPC Date of committal to Sessions Court : 16.07.2009 Date on which judgment was reserved : 25.10.2016 Date on which Judgment pronounced : 25.10.2016 JUDGMENT
1. The case of the prosecution as mentioned in the chargesheet is as under:
(i). That on 22.02.2009, DD No. 30A (Ex. PW12/A) was recorded at 5 pm in PS Aman Vihar to the effect that 7/8 boys had snatched Rs. 60,000/ during quarrel near MCD Office near Kirari School, Mubarak Pur Bus Stand and they had fled away and were also having gun with them. Said DD was entrusted to SI Jai Parkash (PW12) for necessary action. The intimation was also transmitted through wireless, on which SI Samar Pal (PW18) also reached at the place of information;
(ii). It is further the case of prosecution that on enquiry, it was revealed that several boys had committed robbery against one boy namely Rakesh (PW4) after beatings to him and he had been removed to SGM hospital by PCR Van. Beat staff also reached at the place of occurrence;State V/s Sunil @ Nanhe etc. Page 2 of 39
FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016
(iii). It is further the case of prosecution that after leaving Beat Staff at the spot, SI Samar Pal alongwith Ct. Dhanu Ram (PW5) rushed to SGM hospital, where they collected MLC of injured Rakesh who after treatment had been discharged from there. Accordingly, SI Samar Pal recorded his statement (Ex.PW4/A), wherein he claimed that on that day i.e. 22.02.2009 at about 2.30 pm, he entered into Agreement to Sell of his property with Property Dealer namely Subhash (PW2). After receiving earnest money of Rs. 50,000/ from him, he left the office of Subhash at about 4.00 pm on his motorcycle. When he reached near MCD Office, 6/7 boys were standing alongwith motorcycles. The said boys followed him on their motorcycles and waylaid him and started abusing him. Out of them, three boys kept standing on the side whereas four other boys had an altercation with him. One boy namely Kale took out country made pistol and same was taken from him by other boy namely Nanhe. Nanhe pointed out the said pistol at him and tried to remove Rs. 50,000/ lying in his pocket. When he resisted, Nanhe hit several blows with butt of said pistol on his head. Another boy of fair complexion who was driver of RTV, alongwith their fourth associate gave several brick blows on his shoulder and back and ultimately, all of them committed robbery of Rs. 50,000/ and his purse containing cash of Rs. 500/600/, PAN Card, Election Card, ATM Card of ICICI Bank, State V/s Sunil @ Nanhe etc. Page 3 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 ATC Card of ICICI Bank of his father and Ten Rupee, fifty rupee and twenty rupee notes bearing digits '786' and fled away on their respective motorcycles;
(iv). On the basis of said statement, FIR in question came to be registered U/s 394/34 IPC and the investigation was entrusted to SI Samar Pal. During investigation, IO prepared rough site plan of the place of occurrence and efforts were made to search for the assailants;
(v). It is further the case of prosecution that on 23.02.2009, complainant Rakesh gave statement and disclosed the names of the assailants to be that of all the six accused persons charge sheeted in this case. However, all the accused persons were found absconding from there respective houses;
(vi). It is further the case of prosecution that on 20.03.2009, investigation was transferred to Inspector Gajender Kumar (PW16). On 29.03.2009, accused Sunil @ Nanhe and Sonu @ Ravi were apprehended alongwith motorcycle no. DL8SAA1622 make Pulsar from near Mubarkpur Bus Stand on the basis of secret information. In pursuance of his disclosure statement, accused Sunil @ Nanhe got recovered robbed purse of black colour containing Election Card in the name of complainant, one 50/ rupee currency note bearing digits '786' and one visiting card, whereas accused Sonu @ Ravi was found in possession of PAN State V/s Sunil @ Nanhe etc. Page 4 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 Card bearing photo of complainant Rakesh and Rs. 10/ currency note bearing digits of '786'. The said articles were identified by complainant as belonging to him. The motorcycle was found to be stolen one being case property of FIR no. 135/09 of PS Paschim Vihar.
(vii). It is further the case of prosecution that on 05.04.2009, statements of PW Subhash who had agreed to purchase the property of complainant Rakesh and having paid earnest money of Rs. 50,000/ to complainant on 22.02.2009 as also that of PW Arun who had prepared Bayana Receipt, were recorded and copy of Bayana Receipt was seized. On 16.04.2009 and 23.04.2009, TIP of case property were got conducted through complainant;
(viii). It is further the case of prosecution that on 26.05.2009, accused Sunny @ Kala was arrested alongwith country made pistol at Mubarakpur Road by HC Adesh Kumar (PW13)and FIR no. 177/09 U/s 25 Arms Act and Section 411 IPC was got registered against him. The said accused confessed his involvement in the present case. Accordingly he was formally arrested in this case. On 02.06.2009, accused Parvesh @ Sonu was arrested on the identification of complainant Rakesh from near Mubarakpur Bus Stand, whereas accused Vikas @ Vicky was arrested on 06.06.2009. After completion of investigation, the chargesheet was filed before the Court.
State V/s Sunil @ Nanhe etc. Page 5 of 39FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016
2. After compliance of Section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
CHARGE FRAMED AGAINST THE ACCUSED
3. After hearing arguments on the point of charge, Ld. Predecessor of this Court framed the charge for offence punishable U/s 395/34 IPC against all the accused persons namely Sunil @ Nanhe, Sunny @ Kala, Vikas @ Vicky, Sonu @ Ravi, Parvesh @ Sonu and Shashi S/o Sh. Krishan, separate charge for offence punishable U/s 397 IPC was also framed against accused persons namely Sunil @ Nanhe and Sunny @ Kala, separate charge each for offence punishable U/s 412 IPC were also framed against accused namely Sunil @ Nanhe and Sonu @ Ravi, vide order dated 12.05.2010 to which accused persons pleaded not guilty and claimed trial.
4. In support of its case, the prosecution has examined 19 witnesses namely PW1 Sh. Surjeet, PW2 Sh. Subhash Jha, PW3 Sh. Arun Jha, PW4 Sh. Rakesh, PW5 HC Dhanu Ram, PW6 Ct. Bijender Singh, PW7 W/Ct. Usha Devi, PW8 HC Surender Pal, PW9 HC Jai Singh, PW10 Dr. Mahipal Singh, PW11 Ct. Raj Rishi, PW12 SI (Retd.) Jai Parkash, PW13 ASI Adesh Kumar, PW14 SI Surya Prakash, PW15 HC Harphool Singh, PW16 Inspector Gajender Kumar, PW17 HC Joginder, PW18 SI Samar Pal and PW19 Sh. S.S Malhotra the then Ld. MM, during trial.
5. It may be mentioned here that accused Vikas @ Vicky expired during pendency of trial and proceedings against him stood abated vide State V/s Sunil @ Nanhe etc. Page 6 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 order dated 19.09.2014, passed by this Court.
It may also be mentioned here that on 11.12.2014, Ld. Additional PP dropped PW namely Ct. Vishal from the list of witnesses as said witness was a formal witness in respect of arrest of accused Shashi. On 11.12.2014, Ld. Additional PP also dropped PW namely HC Jogender from the list of witnesses as he was a witness regarding execution of process U/s 82 Cr.P.C. only and had not participated in the investigation of the present case.
6. Thereafter, statements U/s 313 Cr.P.C. of all the remaining four accused persons namely Sunil @ Nanhe, Sunil @ Kala, Parvesh @ Sonu and Shashi were recorded during which all the incriminating evidence were put to them which they denied. The said accused persons claimed that they are innocent and have been falsely implicated in this case. Their defence is of general denial. However, accused persons opted not to lead any evidence towards their defence.
7. I have already heard Sh. Pankaj Bhatia, Ld. Addl. PP on behalf of State, ld. counsel Sh. Anwar Ahmed Khan, Adv. on behalf of accused Sunil @ Nanhe and Shashi and ld. Counsel Sh. Parveen Dabas, Adv. on behalf of accused Parvesh @ Sonu and Sunny @ Kala. I have also gone through the material available on record including the written arguments filed by accused persons and the authorities cited at Bar.
8. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of State V/s Sunil @ Nanhe etc. Page 7 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 prosecution witnesses which have come on record. The said testimonies are detailed as under: PUBLIC WITNESSES:
9. PW1 Sh. Surjeet: He supported the case of prosecution only to the extent that he had made PCR call at 100 number from his mobile no. 9268092906 on 22.02.2009 at about 4.30 pm. He deposed that on the said date and time when he was going from Madanpur Dabas to Kirari and reached near MCD office Mubarakpur, he found 1520 persons present over there. He was told that quarrel had taken place, on which he had made the said PCR call and left the spot.
He was cross examined on behalf of State through Ld. Additional PP, during which all the relevant suggestions on the lines of prosecution story were put to him, but he denied the same. He categorically denied to have made statement U/s 161 Cr.P.C. (Ex.PW1/A) before the police or having told the police that on 22.02.2009 at 4.30 pm, he had received phone call from his friend Rakesh or he was informed by Rakesh that 67 boys had robbed Rs. 50,000/ from him after giving beatings or that blood was oozing out from his head. He also denied the suggestion that accused persons were known to him being residents of Village Madanpur Dabas.
During cross examination on behalf of accused persons, he admitted that he was not residing in Village Madanpur Dabas for the last State V/s Sunil @ Nanhe etc. Page 8 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 about 1½ years.
10. PW2 Sh. Subhash Jha: He did not support the case of prosecution during trial. He deposed that some negotiation concerning deal of plot was going on between him and Rakesh for which he had asked Rakesh to come to his office on 23.09.2009, but he did not come. On the request of Rakesh to prepare Bayana Receipt, he had asked his brotherin law Arun to prepare Bayana Receipt. Accordingly, Arun had prepared Bayana Receipt and had handed over the same to Rakesh, but subsequently, deal of plot could not be finalized. He did not pay any money to Rakesh.
This witness was declared hostile and was cross examined on behalf of State. He denied the suggestions put to him on the lines of prosecution story. He categorically denied to have paid Rs. 50,000/ in cash as earnest money to Rakesh Kumar on 22.02.2009 concerning purchase of plot or that Rakesh had left his office at about 3.30 pm on that day after taking money and Bayana Receipt.
In his cross examination on behalf of accused persons, he admitted that Rakesh did not even meet him on 22.02.2009 and he had not written any Bayana Receipt or agreement.
11. PW3 Sh. Arun Jha: He also did not support the case of prosecution during trial and turned hostile. He deposed on identical lines as testified by PW2 Subhash Jha by claiming that on 21.02.2009 at about 9 pm, he had prepared and handed over Bayana Receipt Ex.PW3/A to Rakesh on his request, after having telephonic conversation with Subhash Jha.
State V/s Sunil @ Nanhe etc. Page 9 of 39FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 In his cross examination on behalf of State, he denied the suggestion that on 22.02.2009, cash amount of Rs. 50,000/ was paid to Rakesh and on that day, he had prepared Bayana Receipt at the instance of Subhash Jha or that Rakesh had left the office on that day at about 3.30 pm after receiving the money and Bayana Receipt.
During cross examination on behalf of accused persons, he deposed that Rakesh did not meet Subhash Jha on 22.02.2009 in his presence.
12. PW4 Sh. Rakesh: He is the complainant/victim of this case. He deposed on the lines of prosecution story during chief examination by narrating the sequence of facts which led to the incident of robbery committed against him after causing beating to him. He testified that on 22.02.2009, he had received Rs. 50,000/ from Arun Jha who was brother in law of Subhash Jha and Bayana Receipt was executed in this regard. There were 4/5 boys who had committed robbery of cash amount of Rs. 50,000/ and his black colour purse containing cash of Rs. 500// 600/, PAN Card, ATM Card, Election I Card, currency notes of Rs. 50/, 20/ and 10/ denominations having digits '786'. One passerby namely Sarjeet Dabas had informed the police at 100 number. He identified accused Sunil @ Nanhe as assailant who had caught hold of him, accused Sunny @ Kala as assailant who had taken out country made pistol and accused Sunil @ Nanhe who had hit butt of said pistol on his head after taking the same from accused Sunny @ Kala and accused Sonu @ Ravi as the assailant who had hit brick on his State V/s Sunil @ Nanhe etc. Page 10 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 back and had robbed his purse from his pocket. He also identified accused Sunil @ Nanhe as the person who had robbed Rs. 50,000/ from his front pocket of the pant. However, he could not identify remaining three accused persons during trial. He claimed that he was not in a position to identify remaining offenders as they were standing at a distance at the time of incident and therefore, he could not see them properly.
He further testified that police had recorded his statement Ex.PW4/A. He also identified copy of Bayana Receipt Ex.PW3/A and also identified the recovered articles i.e. purse as Ex. P1, PAN Card and currency note of Rs. 10/ as Ex. P2, Election I Card, currency note of Rs. 50/ denomination and Visiting Card of Rakesh Gas Service as Ex.P3 (colly.) during trial.
This witness was subjected to cross examination on behalf of State as he was found partly resiling from his previous statement. During said cross examination, he denied to have made statement (MarkA) before police on 02.06.2009 as also the suggestions that accused Parvesh @ Sonu was arrested on his identification from near Mubarakpur Bus stand. He also denied to have made statement (MarkB) before police on 06.06.2009 as also the suggestions that accused accused Vikas @ Vicky was arrested on his identification from near Mubarakpur Bus stand. He also denied to have made statement (MarkC) before police on 31.08.2009 as also the suggestions that accused accused Shashi was arrested on his identification from near Mubarakpur Bus stand. He categorically denied that accused State V/s Sunil @ Nanhe etc. Page 11 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 Vikas @ Vicky, Parvesh @ Sonu and Sunny were also amongst the assailants who had committed robbery against him during the incident in question or that accused Shashi had given leg and fists blow to him at the time of robbery.
In his cross examination on behalf of accused persons, he denied the suggestion that he had named and identified accused Sunny @ Kala during trial on account of personal enmity with him as he had a scuffle with said accused few days ago or that he wanted to teach any lesson to said accused. He testified that his signatures were obtained by police on several papers on two occasions. On one occasion, he had visited PS where his signatures were obtained on certain papers including blank/printed papers. He reiterated that police had read over the contents of his statement Ex.PW4/A, before he signed the said statement. He admitted that there was no specific mark of identification on his purse on the basis of which he had identified the same during judicial TIP. However, he denied the suggestion that purse Ex.P1 was not his purse or that he had wrongly identified the same. He also denied the suggestion that he had sustained injuries due to fall on the road from his vehicle. He had signed on documents Ex.PW4/DA, Ex.PW4/DB, Ex.PW4/DC, Ex.PW4/DD, Ex.PW4/DE, Ex.PW4/DF, Ex.PW11/F, Ex.PW11/K, Ex.PW11/G, Ex.PW11/K and Ex.PW11/L in PS. POLICE WITNESSES:
13. PW5 HC Dhanu Ram: This witness had accompanied SI Jai Prakash to the place of occurrence after receipt of DD No. 30A on State V/s Sunil @ Nanhe etc. Page 12 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 22.02.2009. He deposed that SI Samar Pal alongwith other staff had also reached at the spot and conducted the investigation. He alongwith SI Samar Pal had also gone to SGM Hospital, where SI Samar Pal collected MLC of Rakesh and also recorded statement of Rakesh and got the FIR registered through him.
In his cross examination, he deposed that DD No. 30A was handed over by him to SI Jai Prakash in PS itself. They had gone to the spot on motorcycle of SI Jai Prakash, but he could not disclose registration number thereof. He had left the hospital for registration of FIR at about 7 pm. Site plan was prepared by IO in his presence. He remained in the hospital for more than 30 minutes. However, he could not tell the time when he had reached at SGM Hospital.
14. PW6 Ct. Bijender Singh: He deposed that on 26.05.2009 on the instructions of IO, he alongwith Ct. Raj Rishi went in search of accused and on the basis of secret information, accused Sunny @ Kala, who was wanted in the present case and was B.C. of the area, was apprehended by them from near Chanchal Nursing Home. From the search of said accused, one desi katta was recovered. Thereafter, HC Aadesh and Inspector Gajender also reached at the spot. HC Aadesh prepared tehrir and got registered FIR U/s 25 Arms Act. He further deposed that Inspector Gajender interrogated said accused in the present case. Accused Sunny @ Kala was arrested in case FIR No. 177/09, U/s 25 Arms Act of PS Aman Vihar. Thereafter, accused Sunny @ Kala had made disclosure statement State V/s Sunil @ Nanhe etc. Page 13 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 Ex.PW11/A regarding his involvement in the commission of offence of the present case. He further deposed that Inspector Gajender Singh interrogated accused Sunny @ Kala and arrested him vide arrest memo Ex.PW11/B and recorded his disclosure statement Ex.PW11/D.
15. PW7 W/Ct. Usha Devi: This witness deposed that on 22.02.2009, she was on duty at PCR PHQ. At about 16:51, she had received phone call from phone no. 9268092906 regarding quarrel at Mubarakpur Primary School near MCD building. After filling PCR Form, she had transmitted the same to console operator for necessary action. She exhibited copy of PCR Form1 as Ex.PW7/A. She has not been cross examined by accused persons despite grant of opportunity.
16. PW8 HC Surender Pal: He is the formal witness who was working as Duty Officer on 22.02.2009. He deposed that on that day at about 7.30 am, Ct. Dhanu Ram handed over rukka sent by SI Samar Pal to him. Accordingly, he got the FIR No. 72/09 registered U/s 394/34 IPC. He proved copy of FIR as Ex.PW8/A. He further deposed that he had also made endorsement Ex.PW8/B on the rukka.
He also deposed that on 26.05.2009, he was working as Duty Officer. On that day at about 7.00 pm, Ct. Raj Rishi handed over rukka sent by HC Aadesh. Accordingly, he got the FIR no. 177/09 registered. He proved copy of said FIR as Ex.PW8/C. During cross examination, he admitted that copy of FIR No. 177/09 Ex.PW8/DA filed alongwith chargesheet, was not bearing his State V/s Sunil @ Nanhe etc. Page 14 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 signature. Ct. Dhanu Ram had left the PS alongwith copy of FIR and rukka at about 8.15 - 8.20 pm. He denied the suggestion that FIR in question was not recorded at the time mentioned therein.
17. PW9 HC Jai Singh: This witness was working as Duty Officer in PS Paschim Vihar on 30.03.2009. He deposed about the factum regarding handing over rukka by ASI Dilbagh Singh at about 6.30 am and had registered FIR no. 135/09. He proved copy of said FIR as Ex.PW9/A. This witness has not been cross examined by accused despite grant of opportunity.
18. PW11 Ct. Rajrishi: He alongwith Ct. Bijender are claimed to have apprehended accused Sunny @ Kala on 26.05.09 alongwith one loaded country made pistol on the basis of secret information.
He deposed that HC Adesh came and got the FIR no. 177/09 U/s 25 Arms Act registered against said accused who made disclosure statement Ex. PW11/A thereby confessing his involvement in the present case. On being informed, IO of this case also reached at the spot and arrested accused Sunny @ Kala vide memo Ex. PW11/B and also recorded his disclosure statement Ex. PW11/D. He again joined investigation alongwith Ct. Narayan, Ct. Bijender, IO and complainant on 02.06.2009, when accused Parvesh @ Sonu is claimed to have been apprehended from near Mubarakpur Bus Stand on the basis of secret information and on the identification of complainant. He exhibited arrest memo and disclosure statement of said accused as Ex.
State V/s Sunil @ Nanhe etc. Page 15 of 39FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 PW11/F and Ex. PW11/H respectively.
He again joined investigation alongwith IO and complainant on 06.06.2009, when accused Vikas @ Vikcy is claimed to have been apprehended from Village Mubarakpur on the basis of secret information and on the identification of complainant. He exhibited arrest memo and disclosure statement of said accused as Ex. PW11/K and Ex. PW11/M respectively.
In cross examination on behalf of accused, he admitted that there were residential houses situated near the place of apprehension of accused Sunny @ Kala but no effort was made to join the public persons during investigation at the time of his arrest. He also admitted that Mubarakpur Bus Stand was quite busy place and public persons were passing near the said place even at the time when accused Parvesh @ Sonu was apprehended. Similar reply was given by him with regard to availability of public persons from the place of apprehension of accused Vikas @ Vicky on 06.06.2009.
19. PW12 SI (Retd.) Jai Parkash: He deposed that on 22.02.09, on receipt of DD no. 30A regarding firing at MCD office, Mubrakpur Bus stand and snatching of Rs. 60,000/, he went to the said spot, where many public persons were found present. He further deposed that injured Rakesh had already been removed by PCR. In the meantime, SI Samar Pal came at the spot and he had handed over DD no. 30A to SI Samar Pal on the direction of concerned SHO and left for PS after leaving Ct. Dhanu Ram at State V/s Sunil @ Nanhe etc. Page 16 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 the spot. He proved attested copy of DD no. 30A as Ex.PW12/A. During cross examination, he deposed that IO Inspector Gajender Singh recorded his statement on 11.06.2009. He admitted that 7/8 boys had snatched Rs. 60/ from the victim. He had not recorded statement of any public person nor SI Samar Pal recorded statement of any public person in his presence. He further deposed that SI Samar Pal came at the spot at about 5.45/6.00 pm.
20. PW13 ASI Adesh Kumar: He deposed that on 26.05.2009, he was posted at PS Aman Vihar. On that day, on receipt of DD no. 32A (Ex.PW13/A), he went to the spot i.e. Chanchal Nursing Home, near Agar Nagar Mubarkpur Road, Delhi, where he met Ct. Rishiraj and Ct. Vijender. Said police officials produced one boy namely Sunny @ Kala alongwith loaded country made pistol recovered from him. He further deposed that he had prepared sketch (Ex.PW13/B) of country made pistol as well as of live cartridge. He seized the same vide memo Ex.PW13/C. He had recorded disclosure statement (Ex.PW13/D) of said accused.
During cross examination, he admitted that place of occurrence was a thoroughfare. He claimed to have requested 4/5 public persons to join the proceedings but none agreed. He did not serve any notice to them for joining the investigation. He admitted that country made pistol was not recovered from the possession of Sunny @ Kala either in his presence or in the presence of Inspector Gajender Singh. He did not request any person to become attesting witness on the rough sketch of country made pistol and live State V/s Sunil @ Nanhe etc. Page 17 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 cartridge. He denied the relevant suggestions put to him on behalf of accused persons.
21. PW14 SI Surya Parkash & PW15 HC Harphool Singh: Both the said witnesses had joined the investigation of this case on 29.03.2009 alongwith IO, other police officials and complainant, when accused Sunil @ Nanhe and Sonu @ Ravi are claimed to have been apprehended alongwith motorcycle no. DL8SA1622 of black colour, on the basis of secret information from near Mubarakpur Bus Stand. He deposed that after interrogation of both the said accused, they were arrested vide memos Ex.PW4/DC and Ex.PW4/B respectively. Said accused had also made disclosure statements Ex.PW14/A and Ex.PW14/B respectively. One PAN Card and currency note of denomination of Rs. 10/ were recovered during formal search of accused Sonu @ Ravi and said articles were seized vide memo Ex.PW4/DB, whereas accused Sunil @ Nanhe led them to his house situated in Village Mubarakpur and got recovered one leather purse from below the double bed. The said purse was found containing Election I Card of complainant Rakesh, one currency note in the denomination of Rs. 50/ and some Visiting Cards. The said articles were seized vide memo Ex. PW14/C and motorcycle was seized vide memo Ex. PW4/DA. He identified the said articles during trial. Nothing material came out during cross examination of both these witnesses.
22. PW16 Inspector Gajender Kumar: He is the main IO of this case. He deposed about the relevant investigation carried out by him from State V/s Sunil @ Nanhe etc. Page 18 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 20.03.2009 till filing of the charge sheet. He deposed on identical lines as deposed by PW14 SI Surya Parkash, PW15 HC Harphool Singh, PW11 Ct. Raj Rishi and PW13 ASI Adesh Kumar about the relevant proceedings with regard to apprehension of accused Sunil @ Nanhe and Sonu @ Ravi on 29.03.2009 and consequent recovery and the relevant proceedings carried out on that day, the apprehension of accused Sunny @ Kale on 25.05.2009, apprehension of accused Parvesh @ Sonu on 02.06.2009 and apprehension of accused Vikas @ Vicky on 06.06.2009 and the relevant proceedings with regard to said three accused carried out by him. He further deposed that on 23.04.2009, TIP of recovered purse and documents contained therein, was got conducted through complainant Rakesh. He also identified the said articles during trial.
In his cross examination, he testified that on 29.03.2009, the complainant himself had met him at Village Mubarakpur and joined the investigation of this case. Despite efforts made by him to join the public witnesses including employee of MCD Office on that day, none agreed but he did not serve any notice upon them in this regard. He also claimed to have requested some of the passersby to join the investigation at the time of apprehension of accused Sunil @ Nanhe and Sonu @ Ravi but claimed that none agreed to join the investigation. Similar was the reply given by him with regard to joining of investigation by public persons at the time of recovery of purse and other articles from the house of accused Sunil @ Nanhe. He denied the relevant suggestions put to him on behalf of accused.
State V/s Sunil @ Nanhe etc. Page 19 of 39FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016
23. PW17 HC Joginder: He deposed that on 29.03.2009, he was posted as MHC(M). On that day, IO Inspector Gajender Singh had deposited one sealed pullanda, one purse, some documents and one motorcycle bearing registration no. DL8SAA1622 in Malkhana. He made entry at serial no. 91/1 and 91/2 in register no. 19 in this regard. He proved the photocopy of said entry as Ex.PW17/A.
24. PW18 SI Samar Pal: He deposed that on 22.02.2009, he was posted as Chowki Incharge PP Prem Nagar, PS Aman Vihar. On that day, on receipt of message regarding robbery, he went to the place of occurrence i.e. Bhagya Vihar, near MCD Office More, Mubarakpur, Delhi and reached there at about 5:30 pm. He found few persons being gathered over there. SI Jai Prakash and Ct. Dhannu Ram also met him at the spot. Upon inquiry, it was revealed to him that robbery was committed upon Rakesh by some persons after causing him beatings. It was also revealed that Rakesh was taken to SGM Hospital by PCR Van.
He further deposed that in the meantime, Ct. Raj Rishi and other staff had also reached at the spot. After leaving said staff at the spot, he alongwith Ct. Dhannu Ram went to SGM Hospital, where Rakesh was found under treatment vide MLC no. 1966/09. He collected MLC of said Rakesh. After treatment, injured Rakesh was discharged and he recorded his statement Ex.PW4/A. On the basis of said statement and contents of MLC, he prepared rukka Ex.PW18/A and handed over the same to Ct. Dhannu Ram, who accordingly went to PS, got FIR No. 72/2009 registered and came State V/s Sunil @ Nanhe etc. Page 20 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 back to the spot and handed over copy of FIR and original rukka to him. In the meantime, he alongwith complainant had already reached at the spot. He prepared site plan Ex.PW18/B at the instance of complainant.
He further deposed that on 23.02.2009, the complainant had made supplementary statement to him thereby giving further details of offenders. On 03.03.2009, since he was transferred, the case file was handed over to MHC(R).
In his cross examination, he deposed that he had made inquiries from the public persons, who were found present at the spot, but said public persons were not the witnesses of the occurrence. He admitted that till the investigation remained with him, he had not examined any other witness except complainant Rakesh who must had seen the occurrence. He also admitted that the occurrence took place in day hours. Till the investigation remained with him, he did not come across any independent public witness who had seen the occurrence. He had not met the complainant after 23.02.2009. He further deposed that on 23.02.2009, complainant Rakesh had met him at the spot and had made supplementary statement. He denied the relevant suggestions put to him on behalf of accused persons.
FORMAL WITNESSES:
25. PW19 Sh. S.S. Malhotra: This witness had conducted judicial TIP of case property on 23.04.2009. He proved application for conducting TIP proceeding in respect of case property as Ex.PW19/A. He deposed that on 23.04.2009, he had conducted TIP State V/s Sunil @ Nanhe etc. Page 21 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 proceeding in respect of case property consisting of one sealed pullanda i.e. one purse duly sealed with the seal of GK containing cash amount of Rs. 50/, one Election Card of complainant Rakesh and one visiting card. He proved said TIP proceedings as Ex.PW19/B. He also exhibited the application for providing copy of TIP proceedings as Ex.PW19/C and the envelope as Ex.PW19/D. He has not been cross examined on behalf of accused persons despite grant of opportunity.
MEDICAL WITNESS:
26. PW10 Dr. Mahipal Singh: He deposed that on 22.02.2009, patient Rakesh S/o Ram Vilas who was brought by HC Udham Singh with alleged history of physical assault, was medically examined by Dr. Rohit under his supervision. On local examination, said patient was found having CLW 2 cm x 0.5 cm x 2.5 cm over his left temporal region and bruise over right arm. The nature of injuries were simple. He proved the MLC of said injured as Ex.PW10/A. He also identified the signature of Dr. Rohit at pointA and his signature at pointB on said MLC.
In his cross examination, he deposed that all the treatment of patient Rakesh was not done in his presence and the possibility of receiving injury by fall, cannot be ruled out.
ARGUMENTS ADVANCED & CASE LAW CITED
27. While opening the arguments, Ld. Additional PP referred to the story of prosecution as mentioned in the chargesheet and the testimonies of State V/s Sunil @ Nanhe etc. Page 22 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 prosecution witnesses examined during trial. He heavily relied upon the testimony of victim i.e. PW4 Rakesh, in support of his contention that the victim has correctly identified accused Sunil @ Nanhe, Sunny @ Kala and Sonu @ Ravi as three of the offenders/robbers during trial and has also identified the recovered robbed articles during the trial. He further argued that there has been recovery of PAN Card and currency note of Rs. 10/ denomination from the possession of accused Sonu @ Ravi and recovery of robbed purse containing Election ICard, currency note of Rs. 50/ denomination and visiting card at the instance of accused Sunil @ Nanhe from below the mattress of double bed of his house. He further submitted that said recovered articles have also been correctly identified by PW4 in judicial TIP conducted before PW19 vide proceedings Ex.PW19/B. He, therefore, urged that prosecution has been successful in establishing the guilt of said three accused persons beyond reasonable doubt. Thus, they should be convicted in this case.
28. On the other hand, ld. Counsels of accused persons vehemently argued that the entire onus to prove the charges levelled against the accused persons, was upon the prosecution and same had to be discharged beyond pales of reasonable doubt. They submitted that the prosecution has failed to establish the charges against accused persons beyond reasonable doubt. Therefore, accused persons deserve to be acquitted in this case. They further submitted that PW1 Surjeet, PW2 Subhash Jha and PW3 Arun Jha have not supported the case of prosecution during trial and same also creates State V/s Sunil @ Nanhe etc. Page 23 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 reasonable doubt in the case of prosecution, benefit of which must be given to the accused persons.
29. Before dealing with the rival submissions made on behalf of both the sides, it may be noted that charge for the offence punishable U/s 395 IPC has also been framed against the accused persons in this case on the basis of allegations that 67 assailants had committed robbery against complainant / victim namely Rakesh (PW4) in this case.
30. It is well settled principle of law that an essential element of offence of dacoity is that five or more persons must conjointly commit or attempt to commit robbery(Reliance placed on AIR 1957 SC 320, 1992 Cr.L.J. 3819 and AIR 1962 Manipur 7). It also needs no emphasis that actual participation by every one of the five or more persons in commission of the robbery whether as major actors or aiders, is necessary for the purpose of attracting offence U/s 395 IPC. Still if any authority is required then reference with advantage can be made to judgment reported at AIR 1973 SC
760. In other words, there must be some material available on record in order to show that there was assembly of atleast five persons in order to constitute the offence of dacoity.
31. Now adverting back to the facts of the present case. The prosecution could not establish the charge for the offence of dacoity punishable U/s 395 IPC in this case. The sole witness examined by prosecution for proving the said charge is PW4 Rakesh (complainant), but he testified during trial that the assailants were 45 in number. He has only State V/s Sunil @ Nanhe etc. Page 24 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 narrated the role played by three accused persons namely Sunil @ Nanhe, Sunny @ Kala and Sonu @ Ravi during trial and deposed that remaining persons were standing at a distance at the time of occurrence and he could not see them properly. In this backdrop, I am of the view that there is reasonable doubt as regards the total number of assailants involved in the commission of robbery of cash amount and purse containing valuable articles including Election ICard, PAN Card, etc. of complainant/victim. Thus, benefit of doubt has to be given to the accused persons. Hence, it is hereby held that prosecution has failed to establish the charge for the offence of dacoity punishable U/s 395 IPC beyond shadow of doubt in the present case.
32. Now, I shall consider as to whether prosecution has been able to establish the charge for the offence punishable U/s 397 IPC framed against accused Sunil @ Nanhe and Sunny @ Kala. Although, it was alleged against said two accused that they had used pistol at the time of committing robbery against victim Rakesh, but there is no iota of evidence whatsoever led during trial to prove the said charge. The entire testimony of victim i.e. PW4 Rakesh is totally silent on the said aspect. What has been deposed by PW4 during trial is that accused Sunil @ Nanhe took the country made pistol from accused Sunny @ Kala and hit butt of said pistol on his head and nothing beyond that. Thus, it cannot be said that any of said two accused had actually used the said pistol for the purpose of committing robbery against the victim, within the meaning of Section 397 IPC. Hence, it is held State V/s Sunil @ Nanhe etc. Page 25 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 that the said charge could not be proved by prosecution against any of said two accused beyond shadow of doubt.
33. Nevertheless, the charges for the lesser offence i.e. for the offences punishable U/s 392/394/34 IPC can always be pressed by prosecution against the accused persons. Ld. Additional PP had vehemently argued that the prosecution has successfully established that accused persons namely Sunil @ Nanhe, Sunny @ Kala and Sonu @ Ravi had committed robbery against the complainant of this case. Therefore, they should be convicted in this case.
34. Ld. Counsels appearing on behalf of accused Parvesh @ Sonu and Shashi vehemently argued that since none of the said two accused has been identified by victim i.e. PW4 during trial to be amongst offenders and there is no recovery whatsoever effected either from their possession or at their instance, both the said accused are entitled to be acquitted in this case. In support of their said submissions, counsels also referred to the relevant portion of the testimony of PW4 Rakesh and the prosecution story as propounded in the chargesheet. Similar pleas have been raised on behalf of said two accused even in their respective written submissions filed on record.
35. I find considerable force in the aforesaid submissions raised on behalf of accused Parvesh @ Sonu and Shashi. No cogent evidence has been led by prosecution during trial to connect said two accused even with regard to offences U/s 392/394/34 IPC. As already mentioned above, the State V/s Sunil @ Nanhe etc. Page 26 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 star witness of prosecution i.e. PW4 Rakesh (victim) failed to identify these two accused persons during trial to be amongst the robbers. Not only this, he was subjected to detailed cross examination on behalf of State, but still he did not support the prosecution story so far as these two accused persons are concerned. He categorically denied the case of prosecution that said two accused persons were arrested on his identification or in his presence by police officials on 02.06.2009 and 31.08.2009 or that he had made statements dated 02.06.2009 (MarkA) and dated 31.08.2009 (MarkC) before the police in that regard. It is an undisputed case of prosecution that no recovery whatsoever was effected either from the possession or at the instance of these two accused persons. In other words, there is no iota of evidence on record to connect these two accused persons with any evidence whatsoever. Thus, both these accused persons namely Parvesh @ Sonu and Shashi are entitled to be acquitted in this case. It is ordered accordingly.
36. This brings me down to remaining three accused persons namely Sunil @ Nanhe, Sunny @ Kala and Sonu @ Ravi. Ld. Counsels while arguing on behalf of said three accused persons vehemently argued that the prosecution has failed to establish the charges against said three accused in this case. For the said purpose, they referred to the case of prosecution contained in the chargesheet more particularly, the police statement (Ex.PW4/A) made by complainant and his testimony recorded during trial. After referring to the same, ld. defence counsels argued that there are various material contradictions, which create reasonable doubt in State V/s Sunil @ Nanhe etc. Page 27 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 the prosecution story, benefit of which must be given to the accused persons. The contradictions as pointed out by the defence counsels may be summarized as under:
(i). In police statement Ex.PW4/A, the complainant/victim namely Rakesh (PW4) claimed that he had received cash amount of Rs. 50,000/ as earnest money from property dealer namely Subhash (PW2) on 22.02.2009, but in his testimony, he claimed to have received the said amount from Arun Jha (PW3);
(ii). In police statement Ex.PW4/A, he claimed that assailants were 67 in number but in his testimony, he deposed that assailants were 45 in number;
(iii). The police statement Ex.PW4/A of complainant is silent regarding execution of bayana receipt by Arun Jha, but during trial, he testified that bayana receipt (Ex.PW3/A) was executed by Arun Jha;
(iv). In police statement Ex.PW4/A, the complainant claimed that accused Sunny @ Kala took out country made pistol, which was taken from him by accused Sunil @ Nanhe who gave several blows with butt of said pistol on his head, whereas two other assailants one of whom was RTV driver, hit several brick blows on his back and shoulder, but in his testimony, PW4 identified accused Sunil @ Nanhe as assailant who was carrying pistol and accused Sunny @ Kala as assailant who had given several blows State V/s Sunil @ Nanhe etc. Page 28 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 with butt of pistol on his head after taking out the same from accused Sunil @ Nanhe and accused Sonu @ Ravi as the assailant who had given brick blow on his back.
37. Ld. Additional PP, however, disputed the factual position with regard to aforesaid contradictions as raised on behalf of accused persons. He submitted that there is no material contradiction as such appearing in the testimony of victim visavis his previous statement Ex.PW4/A made before the police.
38. After carefully seeing the testimony of PW4 in the light of his previous police statement which led to registration of FIR, I do not find any material contradiction as such in both these statements. Both the said statements are on similar lines to the effect that it was accused Sunny @ Kala, who had taken out country made pistol, whereafter the said pistol was taken from him by accused Sunil @ Nanhe who had hit several blows of butt of said pistol on his head when he (victim) had refused to budge before them. No doubt, there is some discrepancy with regard to actual number of assailants involved in the commission of offence as the assailants were claimed to be 67 in police statement, but were stated to be 45 in the testimony recorded during trial, but said discrepancy does not affect the basic fabric of the prosecution case inasmuch as the victim is found to have fully supported its case with regard to the incident of robbery of cash amount of Rs. 50,000/ from one pocket and robbery of his purse (Ex.P1) of black colour containing his PAN Card, Election ICard, ATM Card, cash amount State V/s Sunil @ Nanhe etc. Page 29 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 including currency notes of various denomination from another pocket by these three accused.
39. It is also relevant to note that accused Sunny @ Kala tried to build up the defence during cross examination of PW4 that PW4 was having personal enmity with him on account of previous altercation between them and that is why, he was got falsely implicated in this case, but said defence could not be substantiated by said accused either during cross examination of relevant prosecution witnesses or otherwise. The statement U/s 313 Cr.P.C. of said accused is totally silent on the said aspect. Rather, he has claimed in said statement that he has no concern whatsoever with the commission of offence involved in this case and during intervening night of one day, he was forcibly taken to PS Aman Vihar by 45 police officials from his house and he was got falsely implicated in this case. He preferred not to lead any evidence in his defence.
40. Ld. defence counsels of accused Sunil @ Nanhe and Sonu @ Ravi also argued that testimony of PW4 is not trustworthy and therefore, it would not be safe to convict said accused on the sole testimony of said witness. For the said purpose, they referred to relevant portion of his cross examination, wherein he has testified at one place that his signatures were obtained by police officials in PS on several papers i.e. blank/printed forms and has testified at another place that he had signed documents i.e. Ex.PW4/DA (i.e. seizure memo of motorcycle), Ex.PW4/DB (i.e. seizure memo of PAN Card and Rs. 10/), Ex.PW4/DC (i.e. arrest memo of accused State V/s Sunil @ Nanhe etc. Page 30 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 Sunil @ Nanhe), Ex.PW4/DD (i.e. arrest memo of accused Sonu @ Ravi), Ex.PW4/DE (i.e. personal search memo of accused Sunil @ Nanhe), Ex.PW4/DF (i.e. personal search memo of accused Sonu @ Ravi), Ex.PW11/F (i.e. arrest memo of accused Parvesh @ Sonu), Ex.PW11/G (i.e. personal search memo of accused Parvesh @ Sonu), Ex.PW11/K (i.e. arrest memo of accused Vikas @ Vicky) and Ex.PW11/L (i.e. personal search memo of accused Vikas @ Vicky) in PS.
41. However, said submission does not carry much weight, in the opinion of this Court, for the simple reason that signing of the aforesaid memos at one particular place, be it the place of apprehension of accused or in PS, hardly matters when the victim himself has supported the incident in question during the course of trial and has also identified the accused persons to be the assailants during trial, unless and until, the defence is able to impeach the testimony of victim on said aspect or are able to show that victim had previous enmity or any illwill to falsely implicate them or to identify them during trial or that the testimony of victim is otherwise not reliable.
42. As already mentioned above, the accused persons have not been able to impeach the testimony of victim i.e. PW4 Rakesh on the material aspects including the identity of accused Sunil @ Nanhe, Sunny @ Kala and Sonu @ Ravi to be amongst robbers, through litmus test of cross examination. In other words, the said witness has successfully withstood the test of cross examination on these points and his testimony is found to be State V/s Sunil @ Nanhe etc. Page 31 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 credible having a ring of truth.
43. At this juncture, it may also be noted that victim Rakesh (PW4) was also assaulted by accused Sunil @ Nanhe with butt of pistol on his head as also by accused Sonu @ Ravi with brick pieces on his back. The said part of his testimony stands corroborated from his MLC (Ex.PW10/A) and the testimony of PW10 Dr. Mahipal Singh of SGM Hospital. According to said MLC, the victim had sustained CLW of 2 cm x .5 cm x 2.5 cm over left temporal region and bruises over right arm. Not even a single suggestion was given to PW10 from the side of accused persons that said injuries could not have been caused by inflicting blows with butt of pistol.
44. The testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant to go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
45. In the judgment delivered by Hon'ble Apex Court in the matter titled as "Mano Dutt & Anr. Vs. State of U.P." reported at 2012 IIIAD (SC) 253, it has been held as under: "xxxxx In our view, nonexamination of Nankoo, to which the accused raised the objection, would not materially affect the State V/s Sunil @ Nanhe etc. Page 32 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 case of the prosecution. Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain, protect the real culprit. We need not discuss more elaborately the weight age that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language.
xxxxxx"
46. In another judgment delivered in the matter titled as "Abdul Sayeed Vs. State of Madhya Pradesh" reported at 2010 IX AD (S.C) 615, Hon'ble Apex Court has held as under: "xxxxxx
28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by the Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a builtin guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness."
xxxxxxx"
47. There is no merit in the contention raised on behalf of these three accused persons that dent is created in the prosecution case because PW1 Surjeet, PW2 Subhash Jha and PW3 Arun Jha have not supported its case during trial. No doubt, said three witnesses have turned hostile during trial on material aspects so far as the payment of earnest money of Rs.State V/s Sunil @ Nanhe etc. Page 33 of 39
FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 50,000/ by PW3 and execution of Bayana Receipt (Ex.PW3/A) by PW3 in favour of victim i.e. PW4 Rakesh on 22.02.2009 is concerned. As per the case of prosecution, these three accused persons alongwith their associate(s) had committed robbery of aforesaid cash amount of Rs. 50,000/, claimed to be received by victim from PW3 and they had also committed robbery of purse containing cash amount, Voter ICard, PAN Card, etc. of the victim. There has been recovery of robbed purse of the victim at the instance of accused Sunil @ Nanhe from below the mattress of bed of his house situated at Village Mubarakpur Dabas and said robbed purse was also found containing Election ICard in the name of victim Rakesh, one currency note in the denomination of Rs. 50/ and some visiting cards, in pursuance of his disclosure statement Ex.PW14/A, whereas accused Sonu @ Ravi is shown to have been found in possession of PAN Card of victim Rakesh and currency note in the denomination of Rs. 10/ at the time of his apprehension in this case.
48. As rightly argued by Ld. Additional PP, PW2 and PW3 may have turned hostile during trial being won over by accused persons as both the said witnesses as well as accused persons are shown to be residents of same locality. Moreover, bare perusal of bayana receipt (Ex.PW3/A) would show that the date of execution of said receipt as mentioned therein is 22.02.2009, which corroborates the testimony of victim i.e. PW4 Rakesh as well as the prosecution story propounded in the chargesheet that PW4 had received the earnest money of Rs. 50,000/ as mentioned in the said bayana State V/s Sunil @ Nanhe etc. Page 34 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 receipt from PW3 Arun Jha on 22.02.2009. In this backdrop, the relevant portion of the testimony of PW3 Arun Jha, whereby he deposed to have executed the said bayana receipt on 21.02.2009 does not stand to reasoning. It is not acceptable that a person would execute any document on 21.02.2009 by mentioning the date of its execution on the said document as 22.02.2009. It is well settled law that a man may lie, but a document cannot. Same applies to the facts of the present case in view of the discussion made hereinabove.
49. Ld. Defence Counsels also argued that recovery of robbed purse containing Election ICard, currency note of Rs. 50/ denomination and visiting card from the house of accused Sunil @ Nanhe and recovery of PAN Card of victim and currency note of Rs. 10/ denomination from the possession of accused Sonu @ Ravi, is totally doubtful as no independent public witness is shown to have been joined by alleged recovery witnesses who all are shown to be police witnesses. In support of their said contention, they also placed reliance upon the judgment reported at 2006 (92) DRJ 15 (SC).
50. However, there is no substance in the aforesaid contention of accused persons. The recovery witnesses have deposed on identical lines to the effect that despite efforts made by them to join the recovery proceedings, no public witness agreed to join the same on both the said occasions. Thus, it is not the case where no effort is shown to have been made by police officials to join independent witnesses at the time of recovery proceedings.State V/s Sunil @ Nanhe etc. Page 35 of 39
FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 Rather, efforts are shown to have been made by them. Thus, the entire case of prosecution cannot be thrown away merely because the public witnesses did not join the recovery proceedings.
51. It is a matter of common knowledge that public persons are reluctant to become witnesses of criminal trial. It has been held in a number of judgments by Hon'ble Supreme court and High Courts that merely because public witnesses are not joined in a case, the entire prosecution case cannot be thrown out on that ground.
52. Hon'ble Supreme Court in the case Ambika Prasad & Anr. Vs. State 2002 (2) CRIMES 63 (SC), has held that it is known fact that independent persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses of the close relative of the deceased are under constant threat and they dare not depose the truth before the Court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Other reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the Court. In any case if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed at and it cannot be a ground for rejecting the evidence of injured witnesses. It was also held that non examination of investigating officer of the case is no ground to discard the evidence of eye witnesses.
53. Moreover, law is not that testimony of police officers is State V/s Sunil @ Nanhe etc. Page 36 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 absolutely untrustworthy or that it can never be acted upon. Rather, the law is that even the testimony of a police officer can be acted upon and a conviction can be based on such testimony if the testimony is unimpeached and found to be trustworthy.
54. Hon'ble Supreme Court in Anil @ Andya Sadashiv Nandorkar Vs. State J.T. 1996 (3) SC 120 has held that testimony of the police officials cannot be discredited merely because they are police officials if otherwise, their testimony is found to be cogent, trustworthy and reliable.
55. In the matter titled as State, Govt. of NCT of Delhi Vs. Sunil & Anr. reported at (2001) 1 SCC 652, Hon'ble Apex Court held as under: "xxxxxx That it is an archaic notion that actions of the police officer should be viewed with initial distrust. At any rate, the Court cannot begin with the presumption that police records are untrustworthy. As a proposition of law, the presumption should be the other way around. The wise principle of presumption, which is also recognized by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through crossexamination of witnesses or through other materials, to show that the evidence of the police officer is unreliable. If the Court has any good reason to suspect the truthfulness of such records of the police the Court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action is unreliable to start with, nor to jettison such action merely for the State V/s Sunil @ Nanhe etc. Page 37 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.
xxxxx"
56. Ld. defence counsels of these three accused persons also made feeble attempt to displace the case of prosecution by arguing that since their TIPs were not got conducted through complainant during investigation, the entire case of prosecution becomes doubtful. In support of said contention, reliance was also placed by them upon the judgments reported at AIR 1987 SC 1222 and AIR 1981 SC 1392. I have gone through both the said judgments, but same are distinguishable on facts and circumstances of the present case.
57. It has been duly clarified by victim i.e. PW4 Rakesh during his deposition that he had named these three accused persons in police statement (Ex.PW4/A) itself as they were talking to each other by taking their names. Moreover, accused Sunil @ Nanhe and Sonu @ Ravi are shown to have been arrested on the identification as well as in the presence of complainant/victim namely Rakesh, who has also signed on their arrest memos Ex.PW4/DC and Ex.PW4/DD as also seizure memo Ex.PW4/DB in respect of robbed articles recovered from the possessed of accused Sonu @ Ravi, as one of the attesting witnesses. Thus, there was no occasion to get TIP of said accused conducted during the course of investigation.
58. The evidence available on record speaks sufficiently about the circumstances and the manner in which offence is shown to have been State V/s Sunil @ Nanhe etc. Page 38 of 39 FIR No. 72/09; U/s 395/397/412/34 IPC P.S. Aman Vihar D.O.D.: 25.10.2016 committed by the accused persons. It is duly established from the testimony of PW4 Rakesh that all these three accused persons had participated during commission of offence and thus, there is no iota of doubt that all three of them were sharing common intention to commit the offence within the meaning of Section 34 IPC.
59. In view of the aforesaid discussion, I am of the considered opinion that the prosecution has been successful in bringing home the guilt of accused persons namely Sunil @ Nanhe, Sunny @ Kala and Sonu @ Ravi for the offences punishable U/s 392/394/34 IPC, beyond pales of reasonable doubt. Accordingly, all these three accused persons stand convicted for the said offences. However, accused persons namely Parvesh @ Sonu and Shashi are hereby acquitted of the charges levelled against them by giving them benefit of doubt.
Announced in open Court today (Vidya Prakash)
On 25.10.2016 Additional Sessions Judge04 (North)
Rohini Courts/Delhi
State V/s Sunil @ Nanhe etc. Page 39 of 39