Delhi District Court
State vs (1) Suraj @ Anuj on 27 January, 2020
FIR No. 472/2007; U/s 395/397 IPC; P.S. Dwarka DOD: 27.01.2020 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE03 & SPECIAL JUDGE (COMPANIES ACT) : SOUTHWEST DISTRICT, DWARKA COURTS: NEW DELHI Session Case No. 440741/2016 CNR No. DLSW010000132007 State Versus (1) Suraj @ Anuj S/o Sh.Rajender Prasad R/o RZ13/C56, New Hira Park, Najafgarh, New Delhi. (2) Sunil @ Sonu S/o Sh.Jagdish, R/o VPO Bakarwala, P.S.Nangloi, New Delhi. (3) Vikas @ Vicki S/o Sh.Virender, R/o VPO Baproda, PS Bahadurgarh, District Jhajjar, Haryana. (4) Sumit @ Lala S/o Sh.Dharambir, R/o VPO Baproda, PS Bahadurgarh, District Jhajjar, Haryana. (5) Mahesh Jat @ Dhilu S/o Sh.Maha Singh, R/o H.No.D70, Maksoodabad Colony, Najafgarh, New Delhi. State V/s Suraj @ Anuj & Ors. ("Acquitted") Page 1 of 20 FIR No. 472/2007; U/s 395/397 IPC; P.S. Dwarka DOD: 27.01.2020 FIR No. : 472/2007 Police Station : Dwarka Under Sections : 395/397 IPC Date of committal to Sessions Court : 05.11.2007 Date on which judgment was reserved: 22.01.2020 Date on which Judgment pronounced : 27.01.2020 JUDGMENT
1. The above named accused persons had been sent to face trial for the offences punishable U/s 395/397 IPC.
2. The case of the prosecution as mentioned in the chargesheet is as under:
(i). That on 19.05.2007, complainant Praveen Kumar (PW2) came to the police station and got recorded his statement (Ex.PW1/A) through ASI Ram Nath (PW1), wherein he claimed that he was a driver by profession. On 18.05.2007 at about 11:50 pm, he had parked his car bearing no. DL1YA 7646 make Aveo of white colour, in front of Dream Apartments, Plot no.14, Sector22 and went inside to call Sh.Parveen Bhardwaj, Senior Manager of Air line. After some time, when he returned back, he found that his car was missing. He searched for his car but could not find it. He further claimed that some unknown person had stolen his car in which one wireless set, his purse containing Driving Licence, badge and State V/s Suraj @ Anuj & Ors. ("Acquitted") Page 2 of 20 FIR No. 472/2007; U/s 395/397 IPC; P.S. Dwarka DOD: 27.01.2020 some money, were kept;
(ii) That on the basis of said statement, FIR in question was got registered by ASI Ram Nath and investigation was entrusted to him;
(iii) During investigation, site plan (Ex.PW1/C) was prepared at the instance of complainant. Upon detailed inquiry from complainant, he further disclosed that his aforesaid car had been forcibly stolen by five boys who came in a white colour Maruti car bearing registration no. HR3A6898. He further told that those boys had also given beatings to him and after leaving him at Tirki border, they had fled away. In this regard, ASI Ram Nath recorded the supplementary statement of complainant and added Section 392/34 IPC in the FIR. Thereafter, on 21.05.2007, the further investigation of present case was handed over to SI Vidyadhar Singh (PW17).
Thereafter, on the same day, the owner of the aforesaid stolen car namely Lalit (PW7) came to the police station and informed that he had received a call from Police Station Tariya Sujan, district Kushi Nagar, U.P. whereby he was told that his car bearing no. DL1YA7646 was recovered and one person namely Mahesh Jaat had been apprehended. After confirmation of said fact, SI Vidhyadhar alongwith his staff went to Police Station Tariya Sujan, where they came to know that FIR no.
State V/s Suraj @ Anuj & Ors. ("Acquitted") Page 3 of 20FIR No. 472/2007; U/s 395/397 IPC; P.S. Dwarka DOD: 27.01.2020 Nil/07, dated 20.05.2007 was registered at said PS, with regard to recovery of stolen car bearing no. DL1YA7646 from accused Mahesh Jat. After taking custody of said recovered car, he went to Devaria Jail, U.P., where accused Mahesh Jat was formally arrested in the present case. He made disclosure statement, wherein he had disclosed the names of his associates involved in the commission of crime committed in this case, as Vikas @ Vicky, Sumit @ Lala and Suraj @ Anuj;
(iv) Accordingly, the aforesaid remaining accused persons were also arrested in this case and all of them refused to participate in their judicial TIP. Accused Vikas @ Vicky got recovered Maruti car bearing no. DHR13A6898 used in the commission of crime. Same was seized in this case;
(v) It is further the case of prosecution that IO seized relevant treatment record including MLC of victim and also seized motorcycle bearing no. DL9SN4190 during investigation;
(vi) That on 20.09.2007, accused Sunil @ Sonu, who was arrested in FIR no. 977/07, u/s 25 Arms Act of PS Malviya Nagar, made disclosure statement regarding his involvement in the commission of crime involved in this case. Accordingly, he was formally arrested in the present case. He also refused to participate in judicial TIP. IO also recorded statements U/s 161 Cr.P.C. of relevant witnesses and collected copies of TIP State V/s Suraj @ Anuj & Ors. ("Acquitted") Page 4 of 20 FIR No. 472/2007; U/s 395/397 IPC; P.S. Dwarka DOD: 27.01.2020 proceedings. After completion of investigation, chargesheet had been filed before the Court.
3. After compliance of Section 207 Cr.P.C., the case was committed to the Court of Sessions.
4. After hearing arguments on the point of charge, this Court had framed the charge for the offences punishable U/s 395/397 IPC against accused persons namely Suraj @ Anuj, Sunil @ Sonu, Vikas @ Vikki, Sumit @ Raja and Mahesh Jat @ Dhilu, vide order dated 27.07.2009, to which they pleaded not guilty and claimed trial.
5. In support of its case, the prosecution examined 17 witnesses namely PW1 SI Ram Nath, PW2 Praveen Kumar, PW3 ASI Rohtash Kanwar, PW4 Dr.S.K.Sharma, PW5 Constable Sushil Kumar, PW6 Constable Rajesh, PW7 Lalit Gandharva, PW8 HC Vijay Kumar, PW9 Rajesh Kumar Singh, PW10 Vanshram Yadav, PW11 SI Sujeet Kumar Rai, PW12 HC Ram Kumar Pandey, PW13 Constable Lakhi Chand, PW14 Retired Inspector Tej Narain Singh, PW15 SI Din Dayal Rai, PW16 ASI Yogesh Kumar, PW17 Inspector Vidyadhar Singh during trial.
6. Thereafter, statements U/s 313 Cr.P.C. of all the five accused persons were recorded, during which all the incriminating evidence which came on record, were put to them. They denied the same and claimed that they are innocent and have been falsely implicated in this case. No recovery has been effected from their possession or at their instance. However, all the accused persons opted not to lead any evidence towards their defence.
State V/s Suraj @ Anuj & Ors. ("Acquitted") Page 5 of 20FIR No. 472/2007; U/s 395/397 IPC; P.S. Dwarka DOD: 27.01.2020
7. I have already heard Sh.Girish Kumar Manhas, Ld. Additional Public Prosecutor on behalf of State, Ld. LAC Sh.Ajay Raghav on behalf of accused Suraj @ Anuj and Sh. Naveen Tyagi, Advocate on behalf of accused Sumit @ Lala, Vikas @ Vicki, Mahesh Jat @ Dhilu and Sunil @ Sonu. I have also gone through the material available on record.
8. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses examined during trial. The testimonies of prosecution witnesses are detailed as under: PUBLIC WITNESSES:
9. PW2 Sh.Praveen Kumar: He is the complainant/victim in the present case. He deposed that on the day of incident, at about 12:00 night, he was returning from Airport in an Aveo car of white colour bearing registration no. DL1YA7646. He reached at Sector23, Dwarka for picking up Mr.Praveen Bhardwaj, Senior Manager of Sahara Air Lines and stopped his car near his house. At that time, one person came and enquired about some address from him. In the meantime, 45 boys also came there and pushed him on the back seat of his car. They also sat in his car and kept on driving the car throughout the night while beating him. He further deposed that the accused persons took away Rs.500/, his badge and driving licence. He further deposed that the assailants left him in a jungle after tying his hands and legs and after inflicting injuries upon him and thereafter, they fled away from there. He became unconscious and when he regained State V/s Suraj @ Anuj & Ors. ("Acquitted") Page 6 of 20 FIR No. 472/2007; U/s 395/397 IPC; P.S. Dwarka DOD: 27.01.2020 consciousness after 1 ½ hours, he untied himself and reached near Vikaspuri by a DTC bus and then managed to reach at Palam and with the help of one known person, he reached to his employer Mr.Lalit and narrated the whole incident to him, whereafter he alongwith his employer went to PS Dwarka.
Although, he supported the case of prosecution to the extent of incident of dacoity having been committed by 45 persons during the relevant period, but he did not identify any of the accused herein to be amongst the offenders. Rather, he deposed that none of the accused was amongst the offenders. Likewise, he identified his signatures appearing on TIP proceedings Ex.PW2/A to Ex.PW2/C in respect of accused Vikas Rathi, Suraj @ Anuj and Mahesh respectively but he stated that TIP proceedings were not conducted in his presence and his signatures were obtained in Tihar on some papers.
He was subjected to detailed cross examination on behalf of State, during which all the relevant questions on the lines of prosecution story, were put to him but he denied the same, except that he had handed over his medical prescription (Ex.PW2/F) of Prashneek Clinic. When his attention was drawn towards all these five accused persons while he was in dock, he categorically stated that none of these accused persons was amongst the offenders who had inflicted injuries to him and had committed robbery of the vehicle and other valuable articles.
10. PW7 Sh. Lalit Gandharva: This witness deposed that he was the owner of vehicle make Chevrolet Aveo bearing registration no. DL State V/s Suraj @ Anuj & Ors. ("Acquitted") Page 7 of 20 FIR No. 472/2007; U/s 395/397 IPC; P.S. Dwarka DOD: 27.01.2020 1YA7646 which was robbed during the intervening night of 18/19.05.2007. At that time, his said vehicle was being driven by Praveen who lodged a complaint in PS Dwarka regarding the incident. He further deposed that on 21.05.2007, in the morning, he received a call from police station Taria Sujan, district Khushi Nagar, U.P. whereby he was informed that his car had been found and out of five persons, one person namely Mahesh had been apprehended alongwith his car. Later on, he got released his said car on superdari. He proved copy of registration certificate of said car as Ex.PW7/A. POLICE WITNESSES:
11. PW1 SI Ram Nath: This witness deposed that on 19.05.2007, he was on emergency duty from 8:00 am to 8:00 pm at PS Dwarka, when complainant Praveen Kumar came to PS and made statement (Ex.PW1/A), on the basis of which, he had prepared rukka (Ex.PW1/B) and got the FIR registered through duty officer. He also deposed to have prepared site plan (Ex.PW1/C) at the instance of complainant.
He further deposed that on 19.05.2007, he again enquired from complainant who informed that his car was robbed and had not been stolen and in this regard, he recorded his supplementary statement and Section 395/297 IPC were added and investigation of the case was handed over to SI Vidhya Dhar.
12. PW3 ASI Rohtash Kanwar: This witness was posted as Duty Officer at PS Dwarka on 19.05.2007. He received rukka from ASI Ram State V/s Suraj @ Anuj & Ors. ("Acquitted") Page 8 of 20 FIR No. 472/2007; U/s 395/397 IPC; P.S. Dwarka DOD: 27.01.2020 Nath and on the basis of same, he registered FIR (Ex.PW3/A) in the present case and also made endorsement on rukka.
13. PW5 Ct. Sushil Kumar: He deposed that on 21.05.2007, he alongwith IO/SI Vidyadhar went to PS Tariya Sunaj, U.P. where accused Mahesh Jat was found arrested in case FIR no.Nil/07 u/s 411 IPC and a car bearing No. DL1YA7646 make Avevo Chevrolet was deposited with MHC(M), which they took on superdari by the order of Court of Ld.CJM of Padrona. He further deposed that after taking transit remand of accused and after obtaining the relevant documents, they returned back to Delhi on 26.05.2007 alongwith said accused. On 06.07.2007, accused Mahesh Jat was arrested vide memo (Ex.PW5/A). On 08.08.2007, on the basis of secret information received by IO, accused Suraj was arrested from his house vide memo (Ex.PW5/B) and he was personally searched vide memo (Ex.PW5/C).
14. PW6 Ct. Rajesh: He deposed that on 29.05.2007, he alongwith SI Vidyadhar and Ct. Ramesh went to village Baproda, District Jhajjar, Haryana, where on secret information, accused persons namely Vikas and Sumit were arrested from said village alongwith one motorcycle bearing no. DL4190 vide memos Ex.PW6/A and Ex.PW6/B and their personal search was carried vide memos Ex.PW6/C and Ex.PW6/D. From personal search of accused Vikas @ Vicky, one mobile phone was recovered. The aforesaid motorcycle was also seized vide memo Ex.PW6/E. He further deposed that disclosure statements (Ex.PW6/F and Ex.PW6/G) of State V/s Suraj @ Anuj & Ors. ("Acquitted") Page 9 of 20 FIR No. 472/2007; U/s 395/397 IPC; P.S. Dwarka DOD: 27.01.2020 both the said accused persons were also recorded, wherein they confessed about their involvement in robbery of a car from Sector23 which was recovered from U.P. He also deposed that accused Vikas also got recovered a car bearing no. HR13A6898 used in commission of robbery at Sector23, Dwarka, which was seized vide memo Ex.PW6/H.
15. PW8 HC Vijay Kumar : This witness deposed that on 19.09.2007, he was posted in Special Staff and was involved in the investigation of case FIR No.977/2007 of PS Malviya Nagar. Accused Sunil @ Sonu, who was in custody, had made disclosure statement (Ex.PW8/A) regarding his involvement in the present case. He handed over the copy of said disclosure statement Mark PW8/1 to the IO of this case.
16. PW10 Vanshram Yadav: He was posted as Malkhana Mohrar at PS Tariya Sujan. He deposed that on 23.05.2007, Kamlesh Kumar Yadav Constable Mohrar was working there and made entry in malkhana register at serial no.37 regarding deposit of car bearing no.DL1YA7646 by SI T.N.Singh border police. The copy of same is Ex.PW10/A. He produced general diary register for the month of May, 2007 of said PS and deposed that accused Mahesh Jat was apprehended with car bearing no. DL1YA 7646 in the area of said PS, for which FIR no.nil/07, u/s 411 IPC was registered at said PS. He further deposed that SI Vidhyadhar alongwith staff of Delhi Police visited their PS and took custody of accused Mahesh Jat as well as of aforesaid car by the order of CJM, Padrona. He proved attested copies and copies of relevant DD entries no. 25 dated 22.05.2007, 28 dated State V/s Suraj @ Anuj & Ors. ("Acquitted") Page 10 of 20 FIR No. 472/2007; U/s 395/397 IPC; P.S. Dwarka DOD: 27.01.2020 23.05.2007 and 20 dated 24.05.2007 made by SI Vidyadhar in their PS, as Ex.PW10/B to Ex.PW10/G respectively and Kayami GD No.9 regarding registration of FIR no. nil/2007, as Ex.PW10/I and attested copy of said FIR as Ex.PW10/J.
17. PW11 SI Sujeet Kumar: This witness was posted as SO at PS Taraiya Sujjan, District Khushi Nagar, U.P. He deposed that in the said PS, one Chevrolet Aveo bearing registration No. DL1YA7646 was deposited in case FIR no.Nil/07 dated 20.05.2007 u/s 411 IPC and the said vehicle was handed over to the IO of present case on receipt of order of Ld.CJM, Parrona, District Khushi Nagar, U.P.
18. PW12 HC Ram Kumar Pandey, PW13 Ct. Lakhi Chand and PW14 Retired Inspector Tej Narain Singh: All these three witnesses were posted in PS Tariya Sujan, District Khushi Nagar, U.P. as on 20/21.05.2007. They all three deposed on identical lines to the effect that on 20.05.2007 at about 11:30 pm when they all alongwith other local staff were on vehicles checking duty in front of Police Post Salem Garh, one cream colour car bearing registration no. DL1YA7646 came from Gorakhpur side. It was got stopped. Out of four persons travelling in the said car, three of them managed to flee away and fourth one was apprehended, whose name, on enquiry, was revealed as Mahest Jat. Said vehicle was seized u/s 102 CrPC and Mahesh Jat was arrested vide memo Ex.PW14/A. It was revealed that said car was stolen from Delhi, on which intimation was given by them. The said vehicle was later on released on superdari to its registered State V/s Suraj @ Anuj & Ors. ("Acquitted") Page 11 of 20 FIR No. 472/2007; U/s 395/397 IPC; P.S. Dwarka DOD: 27.01.2020 owner who produced photographs and negatives of the said car, which were seized vide memo Ex.PW14/A. PW14 exhibited the said photographs and their negatives as Ex.PW14/B (colly.)
19. PW15 SI Din Dayal Rai: This witness deposed that on 21.05.2007, he was posted as ASI at PS Tariya Sujan, District Khushi Nagar, U.P. and after registration of FIR no. Nil/07, u/s 41 CrPC and Section 411 IPC, the investigation of said case was marked to him by the order of Incharge of PS in pursuance of which MHCR handed over to him the copy of FIR, copy of seizure memo Ex.PW14/A and copy of arrest memo of accused Mahesh Jat. He further deposed that he recorded the statements of the witnesses and inspected the spot from where accused was arrested alongwith stolen car. He produced accused Mahesh Jat before Ld.CJM. He further deposed that on 24.05.2007, SI Vidyadhar from Delhi Police, came to PS Tariya Sujan to whom he handed over the relevant documents which were seized by SI Vidyadhar vide memo Ex.PW15/A.
20. PW16 ASI Yogesh Kumar: He was posted as MHC(M) at PS Sector23, Dwarka on 28.05.2007. He deposed that on that day, SI Vidyadhar had deposited a car bearing no. DL1YA7646 in Malkhana vide entry at serial no. 1939 of register no. 19. He further deposed that on 29.05.2007, SI Vidyadhar again deposited one car bearing registration no. HR13A6898 and one motorcycle make Yamaha bearing registration no. DL9SN4190 in Malkhana vide entry at serial no.1942 of register no.19. He proved copies thereof as Ex.PW16/1. He further deposed that the said State V/s Suraj @ Anuj & Ors. ("Acquitted") Page 12 of 20 FIR No. 472/2007; U/s 395/397 IPC; P.S. Dwarka DOD: 27.01.2020 motorcycle was released on Superdari to one Sudesh Rani vide Court order dated 23.07.2007.
21. PW17 Inspector Vidyadhar Singh: He is the main IO of this case. He has deposed about the relevant investigation carried out by him during investigation. He deposed that on 21.05.2007, he recorded the statement u/s 161 CrPC of the owner namely Lalit of robbed vehicle bearing no. DL1YA7646 make Aveo Chevrolet, wherein he had told that accused Mahesh Jat who had robbed his vehicle, had been apprehended by the police officials of PS Tariya Sujan, Khushi Nagar, U.P. Thereafter, he alongwith Ct. Sushil (PW5) and Ct. Deen Dayal reached at PS Tariya Sujan on 22.05.2007. He deposed on identical lines as deposed by PW5 Ct.Sushil with regard to investigation carried out by him on relevant dates. He testified that on 23.05.2007, he took custody of accused Mahesh Jat as well as of vehicle bearing registration no. DL1YA7646, seized vide memo Ex.PW17/1. On 24.05.2007, he obtained relevant document from ASI Deen Dayal and seized them vide memo Ex.PW17/2 and on 26.05.2007, he went to Devaria Jail and arrested accused Mahesh Jat vide memo Ex.PW17/3 and on 28.05.2007, he recorded his disclosure statement Ex.PW17/4 and deposited the case property in malkhana.
He also deposed on identical lines with regard to relevant investigation regarding arrest of accused Vikas @ Vicky and Sumit @ Lala carried out on 29.05.2007, as deposed by PW6 Ct.Rajesh. He testified that he had seized the Maruti car bearing registration no. HR13A6898 vide State V/s Suraj @ Anuj & Ors. ("Acquitted") Page 13 of 20 FIR No. 472/2007; U/s 395/397 IPC; P.S. Dwarka DOD: 27.01.2020 memo Ex.PW6/H which was recovered from the possession of accused Vikas @ Vicky.
He also deposed that on 08.08.2007, he alongwith PW5 and other staff had arrested accused Suraj @ Anuj vide memo Ex.PW5/B and personally searched him vide memo Ex.PW5/C and recorded his disclosure statement Ex.PW17/5. On 20.09.2007, he had arrested accused Sunil Sehrawat vide memo Ex.PW17/6 from the office of Special staff and recorded his disclosure statement Ex.PW8/A. FORMAL WITNESS:
22. PW9 Sh. Rajesh Kumar Singh: On 29.05.2007, while working as Link MM, he had conducted TIP proceedings of accused Mahesh @ Jat. He testified that said accused refused to join TIP proceedings despite warning that his refusal may be considered against him during trial and had recorded his statement Ex.PW9/A. He proved TIP proceedings of said accused as Ex.PW9/B. On 06.06.2007, while working as Link MM, he had also conducted judicial TIP of accused Vikas Rathi and Sumit Rathi and on 09.08.2007, he had conducted judicial TIP of accused Suraj and on 20.09.2007, he had conducted judicial TIP of accused Sunil @ Sonu. He deposed that all the said accused persons had refused to participate in their respective judicial TIP. He proved statements of their refusal to join TIP proceedings and relevant TIP proceedings in respect of all these four accused persons as Ex.PW9/C to Ex.PW9/I respectively.
State V/s Suraj @ Anuj & Ors. ("Acquitted") Page 14 of 20FIR No. 472/2007; U/s 395/397 IPC; P.S. Dwarka DOD: 27.01.2020
23. PW4 Dr.S.K.Sharma: He deposed that on 19.05.2007, patient Praveen Kumar came to him with alleged history of multiple abrasions and mild bruises all over the body. He examined the patient and gave him first aid and advised him medicines vide prescription slip Ex.PW2/F. On 22.05.2007 and 28.05.2007, the said patient again visited his clinic and he advised him medicines and to consult a dental surgeon.
ARGUMENTS ADVANCED AND CASE LAW CITED
24. While opening the arguments, Ld. Additional PP heavily relied upon the testimonies of public witnesses i.e. PW2 Parveen Kumar, PW7 Lalit Gandharv, as also upon the testimonies of PW12 to PW15 of U.P. police who had apprehended accused Mahesh @ Jat alongwith robbed vehicle no. DL1YA7646, in support of his submission that the prosecution has been successful to bring home the guilt of accused persons beyond reasonable doubt. He further argued that all the police witnesses have also supported the prosecution case by deposing on identical lines with regard to the relevant investigation carried out in this case. He, therefore, urged that accused persons are liable to be convicted in this case.
25. Per contra, Ld. defence counsels vehemently argued that the prosecution has failed to prove the charges levelled against the accused persons beyond reasonable doubt. For the said purpose, they referred to the testimony of PW2 Parveen Kumar and contended that said witness has failed to identify any of the accused persons during trial. They further State V/s Suraj @ Anuj & Ors. ("Acquitted") Page 15 of 20 FIR No. 472/2007; U/s 395/397 IPC; P.S. Dwarka DOD: 27.01.2020 argued that no other prosecution witness has identified accused persons to be amongst the dacoits and thus, charges for offences punishable U/s 395/397 IPC could not be established. They further argued that the alleged recovery of car no. DL1YA7646 from the possession of accused Mahesh @ Jat is also doubtful as neither any independent public witness is joined at the time of alleged recovery despite their availability nor any effort is shown to have been made to join any independent witness by alleged recovery witnesses. They, therefore, contended that accused persons should be given benefit of doubt in this case.
26. As already mentioned above, all these five accused persons were charged with offences U/s 395/397 IPC on the allegations that all of them had committed dacoity of vehicle no. DL1YA7646, as also the valuable articles i.e. driving licence, bag, purse and cash amount of Rs.500/ against victim Parveen Kumar (PW2) at the point of deadly weapon.
27. 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.LJ 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 State V/s Suraj @ Anuj & Ors. ("Acquitted") Page 16 of 20 FIR No. 472/2007; U/s 395/397 IPC; P.S. Dwarka DOD: 27.01.2020 record in order to show that there was assembly of atleast five persons in order to constitute the offence of dacoity.
28. Now adverting back to the facts of the present case. The prosecution story as propounded in the chargesheet recites that Parveen Kumar (PW2) was returning from Airport in vehicle bearing registration no. DL1YA7646 during the intervening night of 18/19.05.2007 when dacoity had been committed. He was examined as PW2 during trial. The said witness, although, testified that assailants were 45 in number and had committed robbery of his valuable articles after causing injuries to him but he gave clean chit to all these five accused persons by deposing that all these accused persons were not the offenders involved in the commission of crime committed against him.
29. Although, Ld. Additional PP argued that since all the five accused persons have refused to participate in their respective judicial TIP held before PW9 vide proceedings Ex.PW9/A to Ex.PW9/I, an adverse inference is liable to be drawn against them, but the said contention is without any merit inasmuch as refusal of accused persons to participate in judicial TIP could have been used by prosecution as corroborative piece of evidence in case the witness would have identified the accused persons during trial, which is not the case herein. PW2 denied all the relevant suggestions put to him on behalf of State during his crossexamination, which could have connected these accused persons with the offences charged against them.
State V/s Suraj @ Anuj & Ors. ("Acquitted") Page 17 of 20FIR No. 472/2007; U/s 395/397 IPC; P.S. Dwarka DOD: 27.01.2020
30. The other star witness of the prosecution namely PW7 Sh.Lalit Gandharv simply deposed that he was informed about the incident of robbery of aforesaid vehicle by his driver Parveen and nothing beyond that. From his testimony, one cannot even make out that the assailants were five or more. He also did not depose that his driver Parveen having told him about the robbery of his purse, bag, driving licence and cash amount of Rs.500/.
31. The conclusion which can be drawn from the aforesaid discussion is that there is no iota of evidence available on record to connect any of the accused persons with the commission of offence of dacoity in this case. The prosecution has failed to lead any cogent evidence during trial to prove that any of these accused persons was amongst the offenders, who had committed dacoity of aforesaid articles on the alleged date, time and place.
32. For the similar reasons as mentioned above, the prosecution has also failed to prove the charge for the offence punishable U/s 397 IPC against any of the five accused persons as there is nothing on record to show that any of the accused persons was armed with any deadly weapon at the time of commission of dacoity. When the prosecution witnesses could not establish the presence of any of these accused persons at the place of occurrence on the relevant date and time or their involvement in the commission of dacoity, it cannot be said that any of them was armed with deadly weapon. For the said purpose, PW2 Parveen Kumar was the only witness who could have proved the case of prosecution for offences State V/s Suraj @ Anuj & Ors. ("Acquitted") Page 18 of 20 FIR No. 472/2007; U/s 395/397 IPC; P.S. Dwarka DOD: 27.01.2020 punishable U/s 395/397 IPC against the accused persons.
33. Considering the fact that PW2 has failed to connect any of the accused persons with the commission of said offence during trial, Court is of the considered opinion that prosecution has miserably failed to bring home the guilt of accused persons for the offences punishable U/s 395/397 IPC.
34. There is no merit in the argument raised by Ld. Addl.PP that accused Mahesh @ Jat is liable to be convicted for offence u/s 412 IPC in view of recovery of robbed vehicle from his possession by police officials i.e. PW12 to PW14 of U.P. police. The reason is quite obvious that in the backdrop of fact that the prosecution failed to establish that it was accused Mahesh @ Jat who was involved in the commission of offence of dacoity, it cannot be said that he was in conscious possession of robbed vehicle. Moreover, no charge for the said offence has been framed in this case. Further, the testimonies of alleged recovery witnesses i.e. PW12 to PW14, are not free from doubt and worth reliable for want of relevant evidence being brought on record showing that they were actually on vehicles checking duty in front of Police Post Salemgarh, District Khushi Nagar, U.P. on 20.05.2007 and no independent witness is shown to have been joined at the time of alleged recovery of the said vehicle or even thereafter. Furthermore, it is not clear from the record as to what is the status of FIR no. nil/2007, u/s 411 IPC which was separately got registered against accused Mahesh @ Jat with regard to alleged recovery of said vehicle from him. For all these reasons, it would not be proper to convict him for the said State V/s Suraj @ Anuj & Ors. ("Acquitted") Page 19 of 20 FIR No. 472/2007; U/s 395/397 IPC; P.S. Dwarka DOD: 27.01.2020 offence in the present case.
35. In the light of aforesaid discussion, all the five accused persons namely Suraj @ Anuj, Mahesh Jat @ Dhilu, Vikas @ Vicki, Sunil @ Sonu and Sumit @ Lala are hereby acquitted for the offence punishable U/s 395/397 IPC by giving them benefit of doubt. File be consigned to Record Room after compliance of Section 437A CrPC.
Digitally signed by VIDYA VIDYA PRAKASH
Announced in open Court today PRAKASH Date: 2020.01.28
10:47:32 +0530
On 27.01.2020 (Vidya Prakash)
ASJ3 & Special Judge (Companies Act)
Dwarka Courts (SW)/New Delhi
State V/s Suraj @ Anuj & Ors. ("Acquitted") Page 20 of 20