Delhi District Court
State vs . on 12 September, 2022
IN THE COURT OF SHRI ARUL VARMA, ASJ04 AND
SPECIAL JUDGE (NDPS) SOUTHEAST: SAKET COURTS: NEW
DELHI
CNR No. DLSE010029322015
FIR No. 101/2015
Sessions Case no 2451/2016
U/s 365/392/397/411/34IPC
& 25/27 Arms Act.
PS : Sunlight Colony
State
Vs.
1) Sameer @ Amir
S/o Farin
R/o House No. 251/A48,
Shri Ram Nagar,Gullu Sha, Takiya
Shahadara, New Delhi
2) Mohd. Amir
S/o Mohd. Shamim
R/o House No. A4/63,
Sawran Jyanti Vihar,
Tikri Khurd, Delhi,
3) Mohd. Zafar @ Bangali
S/o Mohd. Yunus
R/o House No. M9, gali No.13
Barham Puri, Delhi
4) Rahul S/o Satbir
R/o House no. 148,
Village Tikri Khurd,
PS Alipur, Delhi
........ Accused Persons
Date of Institution : 21.05.2015
Date of reserving the Judgment : 08.09.2022
Date of Judgment : 12.09.2022
FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 1/35
JUDGMENT
FACTS IN BRIEF / CASE SET UP BY THE PROSECUTION
1. The facts as alleged by the prosecution, are hereby succinctly recapitulated. It was alleged that on 19.02.2015 at around 03:00 am, Ring Road, DND Loop, New Delhi within the jurisdiction of PS Sunlight Colony, all the aforesaid three accused persons in furtherance of their common intention had abducted complainant Tarun Kumar alongwith his Car make Swift Dezire bearing registration No. DL 3CN5013 and had also robbed him and his friend Parminder at gun point. The accused persons have robbed one gold ring, one wrist watch make RADO, one mobile phone make Black Berry, IPhone 6, one laptop and cash Rs.3,000/ from the complainant and one gold ring, one mobile phone make OPPO, one watch make Tissot and Rs.6,000 7,000/ cash from other victim Parminder (friend of the complainant).
2. It is the further case of the prosecution that on 05.03.2015, accused Mohd. Amir s/o Sh. Mohd. Shamim got recovered the said laptop and Black Berry phone and one wrist watch make Tissot during investigation of case FIR No. 175/2015, PS K. M. Pur u/s 394/397/367/170/34 IPC & 25/27 Arms Act from his House No. A 4/53, Swaran Jayanti Vihar, Tigri Khurd, Delhi, which constituted the case property of the present case.
FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 2/35
3. The present FIR was registered on the statement of the complainant/victim Tarun Kumar S/o Kishan Lal R/o Flat No. 604 Saubhagya Apartment, Sec20, Faridabad, Haryana. The accused persons were arrested by the IO in this case. Accused Rahul was declared Proclaimed Offender on 23.07.2015 by the Court of Ld. MM. After completion of the investigation, challan was filed against the present accused persons for offences u/s u/s 365/392/397/411/34 IPC & 25/27 Arms Act before the Court of Learned MM. Accused Rahul was subsequently arrested and supplementary Chargesheet was also filed against him.
CHARGES FRAMED QUA THE ACCUSED
4. Charges under section U/s 392/394/397/367/170/34 IPC were framed qua accused Sameer @ Amir, Mohd. Amir, and Mohd. Zafar @ Bangali on 31.07.2015, to which they had pleaded not guilty and had claimed trial and charges for the offences punishable under sections 392/397/34/174A IPC were framed against accused Rahul on 11.02.2016, to which he had pleaded not guilty and had claimed trial. FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 3/35
EVIDENCE LED BY PROSECUTION
5. In the trial, the prosecution in support of its case, examined Eighteen witnesses, the succinct testimonies whereof are as follows:
6. PW1 Sh. Parminder Singh deposed that he was one of the victims and friend of the complainant/victim Tarun. He has deposed on 19.02.2015, at about 3:00 AM he along with his friend Tarun was returning from Panchukala in Verna Car HR51BB1886 driven by his friend as they had gone there in a cremation ceremony of Tarun's relative. As soon as they reached at Ring Road DND loop, a Swift Dezire overtook their car and stopped the same in front of their car. He could not tell the registration number of the Swift Car as well as other car used in the present case by the accused persons. The occupant of the car also signalled them to stop their vehicle. He further stated that his friend Tarun immediately stopped the vehicle. One other car was behind their car and same was also stopped. Two persons came down from the Swift Dezire and one of them was wearing Delhi police's jacket, who asked Tarun to produce his driving license and Tarun handed over his D/L to the said person. He handed over RC of the vehicle to the said person. Thereafter, the person who was wearing the police jacket put pistol on Tarun Kumar. The other boy put pistol on FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 4/35 him and made them( PW1 and PW Tarun) to sit on the rear seat of their car. PW1 Further stated that two boys, one who alighted from the Swift Dezire and other who came down from other car sit beside them on the rear seat. The person who was wearing Delhi Police's jacket drove their car towards Akshardham. They stopped the car near Akshardham and waited for Swift Dezire to reach there. The person who was wearing Delhi police's jacket remained sit with them and thereafter their car was driven by some other person who came from other car of the accused person. PW1 further stated that they asked him and Tarun to head down and not to raise any alarm and drove the car towards Hindon Canal. They also asked them (PW1 and PW2) to hand over whatever cash and other articles carried by them. PW 1 handed over his two gold rings around 20 grams, wrist watch make Tissot, one mobile phone make Oppo of black colour, Rs.60007000/ cash. The accused persons did not take their ATM cards and also returned SIM of the mobile. PW1 further stated that the accused persons also took one mobile phone of Blackberry, one Iphone Apple, two gold rings and some cash from his friend Tarun. PW1 further stated that one laptop make Lenovo was lying in the Dicky of their car. The accused persons took away the same and thereafter they dropped them (PW1 and PW2) FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 5/35 at around 4:00 AM on Hindon canal flyover and went away with aforesaid robbed articles and one Verna car of his friend. PW1 further stated that thereafter they (PW1 and PW2) started running towards Noida and they had hardly covered distance for five minutes, a PCR vehicle met them. They narrated about the incident to the PCR staff and they flashed the message. The PCR officials took them to some police station in U.P and after some time a telephone was received from Delhi police in the police station and thereafter they were dropped by UP Police at Delhi border. They called their friend who was residing in Mayur Vihar Delhi. Around 6:00 AM, we reached PS Sun Light colony where statement of Tarun was recorded by the police. He also narrated the entire incident to police. PW1 further stated that after about one hour, the official of Sun Light Colony produced them before DCP in the Nizamuddin Area where they also narrated the incident before DCP. The police officials showed them jacket worn by Delhi police and asked them to identify whether accused were wearing the look like jacket and they replied in affirmative. They remained at PS Sun Light colony up to 7:00 PM. Thereafter, they left for their house and collected the copy of FIR on the next day. PW 1 further deposed that after 23 days of incident he FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 6/35 along with Tarun on receipt of calls from PS Sun Light Colony regarding apprehension of a boy and recovery of wrist watch, went to office of crime branch office at Mayur Vihar to identify the same. He identified his wrist watch there. Similarly, after about 34 days, they again went to office of Crime Branch, Mayur Vihar and Tarun identified one laptop make Lenovo, one mobile phone Blackberry and one iphone make Apple which were robbed by the accused persons. After some days, police officials asked them to reach at Tihar Jail for identification of accused persons apprehended by them. One of the accused refused to participate in the TIP proceedings whereas one accused was identified by Tarun who was involved in the incident. No TIP was got conducted from him. Later on he got released his wrist watch on Superdari which is Ex.P1. No other articles / cash were recovered by the police in the present case. Police also could not recover the Verna car. PW1 has identified the accused Sameer and Mohd. Amir and stated that accused Mohd. Amir was wearing police jacket at the time of incident. The witness failed to identify the third accused Zafar, produced in custody in this case. This witness was declared hostile on certain material facts by the Ld. Addl. PP for the state and he was permitted to cross examine the witness FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 7/35
7. PW2 Sh. Tarun Kumar deposed that he is the victim and complainant. He has stated that during intervene night of 18/19.02.2015 at around 2:30 AM, he along with his friend Parminder was returning from Panchkula in his Verna Car no.HR51BB 1886 driven by him. As soon as they reached DND loop near Maharani Bagh, one Swift Dezire car of silver colour over took their car and one person who was wearing police jacket signaled them with torch light to stop their vehicle and parked his car in front of their car. One person wearing police jacket came down from the said car and knocked on window of his car and asked him as to why he was driving at such a high speed. When he denied driving at a high speed, he asked him to show his driving license. He replied that the driving license was in the boot of his car and thereafter he came down from his car, opened its boot, took out his D/L and handed over same to the said person . After this, the said person asked for the RC. When he told the said person that the RC was lying inside the car, he came to the front side and asked his friend Parminder to take out the RC. RC was also handed over to the said person. In the meantime, one Chevrolet Beat of silver colour also reached there and parked just by the driver side of his car. Two boys came down from the said car with guns in their hands. They FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 8/35 pushed him (PW2) on the rear seat of his car. Parminder was also asked to shift to the rear seat. The person who was wearing the police jacket took the charge of driving seat of his car. The other two boys sat on either side of him and Parminder. Another boy from D'zire occupied the seat by the side of driver side of his car and proceeded towards Ashram and took "U" Turn from Ashram Flyover and again started driving towards Sarai Kale Khan. The vehicle was stopped for few minutes at Kale Khan but they were asked to look down and not to raise their heads. Thereafter, they took a right turn on Akshardham road and stopped the vehicle just after the turn and the drivers of the vehicles were changed. The person wearing police jacket sat next to the driving seat and another boy from D'zire car came in and held the driving seat of his car. The moment they started, they (PW1 and PW2) were asked to hand over all of their belongings to them. Due to fear, he handed over his blackberry mobile, two golden rings, Raddo Wrist watch and wallet containing cash around three thousand. Parminder handed over his mobile, watch make Tissot, his wallet and golden rings. For about 3045 minutes, the vehicle continued running on the highway after which One U turn was taken and they were asked about their ATM cards and the cash lying in their bank accounts. Again one FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 9/35 U Turn was taken for Ghaziabad. The vehicle was driven in a high speed and in a rash manner. At around 4:00 AM, they dropped them (PW1 & PW2) at Hindon bridge and fled away with car in which his laptop make HP and another mobile phone Iphone6 were lying. Thereafter, they (PW1 & PW2) started running towards Delhi and saw one PCR parked near one hospital. They told the entire incident to the PCR police who immediately flashed the message on wireless. They took them near by police post. From there, they were again brought back to the spot where they were left by the PCR Police. The said police had also brought this matter to the notice of their Senior officers and conveyed them (PW1 &PW2) that their case was to be registered at Delhi. After that, U.P. Police dropped them at Delhi border. In the meanwhile, he had called one of his friends who resides in Mayur Vihar through mobile phone of one police officials and his said friend reached Delhi border with his car and took them to PS Sun Light Colony where his statement Ex.PW2/A was recorded. PW2 further stated that police had also taken him to the spot of occurrence and had prepared the site plan Ex.PW2/B. Police had also seized Beat car vide seizure memo Ex.PW2/C. One magazine and six bullets were also recovered from the Beat car which were taken into possession vide FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 10/35 memo Ex.PW2/D. Their sketches Ex.PW2/E and Ex.PW2/F were also prepared by the police. PW2 further stated that after 1520 days of the incident, he was called at PS Sunlight Colony and told that his mobile and laptop were recovered. He got those released from the Court on Superdari which are exhibited as Ex.P2 (laptop), Ex.P3 white and golden colour iphone and Ex.P4 is blackberry phone of black colour. He has also proved his application for releasing of articles as Ex.PW2/G and Superdarinama as Ex.PW2/H. PW2 further stated that IO had also taken to him in Tihar Jail where he had identified the accused Mohd. Amir as the person who was wearing the police jacket. The other accused had refused to participate in TIP. He has also identified the accused persons in the court by pointing out towards accused Sameer @ Amir and accused Amir. He Could not identify accused Zafar Bengali. PW2 further stated that accused Mohd. Amir is the person who was wearing the police jacket on the day of incident.
8. PW3 Ct. Vikram No. 1381 SE, deposed that on 24.02.2015 he was posted as constable in PS S.L. Colony. On that day, he alongwith Ct. Manoj and SI Bijender came to Saket Court in Court no. 508. IO, SI Bijender arrested the accused Samir @ Amir after obtaining permission from the court vide arrest memo Ex. PW 3/A bearing his which is Ex. FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 11/35 PW 3/B bearing his signatures at point A.
9. PW4ASI Vijay Kumar No. 2503/SD, deposed that on 21.02.2015 he was posted as Head Constable at special staff, South District. He alongwith SI Jeet Singh, HC Bir Singh, Head Ct. Ashok & other staff was on patrolling duty in a government vehicle in the area of South District. At around 8 pm, they reached the area of Outer Ring Road, Near Chirag Delhi Village. At that time a secret informer met them and shared an information with him regarding criminals who used to commit robberies on the roads and they were going to assemble at Andolan Park, Savitri Nagar. The information was shared with Sr. Officers, who directed them to conduct the raid. The raid was conducted and two persons were apprehended and on inquiry, they had disclosed their names as Sameer @ Amir & Sonu @ Badal. One wrist watch of Tissot company was also recovered from the possession of Samir @ Amir which was sealed in a pulanda and sealed with the seal of VKH. Accused Samir @ Amir was also arrested and the recovered watch was seized vide arrest & seizure memos Ex. PW4/A & B, both bearing his signature at point A. His disclosure statement was recorded, which is Ex. PW4/C, bearing his signature at point A. Information was sent to concerned IOs about his disclosure statement. FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 12/35
10.PW5 HC Rakam Singh No. 575/SE, deposed that on 19.02.2015 he was posted as Head Constable at PS Sunlight Colony. On that day, on receipt of DD No. 23A, he went to DND Flyover Loop, where, one Beat car of white colour bearing No. DL3CN 5013 found lying in an abandoned condition. One back seat window was opened and one magazine was also found lying on dash board. In the meantime, two persons namely Tarun Kumar and Parminder Singh reached there and told him that this car was robbed from their possession by the offenders. In the meantime, SI Bijender alongwith Ct. Pradeep also reached at the spot as they were on the call of incident of snatching. SI Bijender made inquiries from the said two public persons. SI Bijender also checked the magazine and it found containing 6 live cartridges. The said recovered magazine and cartridges were sealed in the plastic box with the seal of BS. The recovered magazine and cartridges were also seized by SI Bijender vide memo Ex. PW2/D bearing his signatures at point B.
11.PW6 Ct. Pradeep No. 3051 PCR, deposed that on 18.02.2015 he was posted as Constable at PS Sunlight Colony and he was on emergency duty from 8 pm to 8 am. In the intervening night of 18 19.02.2015 at about 34 am, a DD No. 24A about robbery of a car was FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 13/35 received by SI Bijender. he accompanied SI Bijender to DND Flyover Loop, where, HC Rakam Singh alongwith complainant was already found present. One Beat car of white colour bearing No. DL3CN 5013 found lying in an abandoned condition. One front door of said car was lying opened and one magazine was also found lying on utility area on the floor meant for keeping bottles. SI Bijender recorded statement of Tarun and handed over the rukka to him for registration of FIR. He further deposed that he went to the PS, got the FIR registered and returned back to the spot along with original rukka and copy of FIR and handed over the same to SI Bijender. SI Bijender left him at the spot and himself went for further investigation. The cartridges were taken out from the magazine and the magazine and cartridges were kept separately in a plastic jar and were taken to PS, where, they were deposited at malkhana. The car was lifted from the spot with the aid of a crane and was brought to police station. Before lifting of car from the spot, crime team had also arrived there and inspected the scene of crime.
12.PW7 Ct Manoj No: 2006/SE, deposed that on 24.02.2015, he was posted as Ct. in PS Sun Light Colony. On that day he along with Ct. Vikram and SI Vijender went to Saket Court. In the court SI Vijender FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 14/35 obtained the permission from the Court to arrest accused Samir @ Amir and thereafter, arrested him vide memo already Ex. PW3/A bearing his signatures at point B. The disclosure statement of the accused was also recorded which is already Ex. PW3/B bearing his signatures at point B. IO also moved an application for judicial TIP of the accused but the same could not be conducted as accused refused to join the judicial TIP.
13.PW8 HC Ashok, NO. 327 SD, deposed that on 21.02.2015 he was posted as Head Constable at Special Staff, South District. On that day, he along with SI Jeet Singh, ASI Ashok, HC Vijay Kr., HC Bir Singh & Ct. Vijay were on patrolling in the area of South District. At around 8 pm when they reached near Chirag Delhi Outer Ring Road, one secret informer met with HC Vijay and shared the information about 4 5 notorious persons involved in robbery cases would meet at Andolan Park at about 8.30 pm. HC Vijay Kr. shared this information with Inspector Akhilesh Kr. Spl. Staff, South on telephone. On his instructions, SI Jeet Singh formed the raiding party and all of them reached at Andolan Park and took their respective positions. At about 8.35 pm, 2 persons came from Outer Ring Road side and stopped near bus stand, Andolan Park. The said 2 persons started conversations with FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 15/35 themselves and after few minutes they started moving from there. On the pointing out by the secret informer, both of them were apprehended & on inquiry, their names were revealed as Sameer @ Amir and Sonu @ Badal. HC Vijay conducted cursory search of the accused persons and one wrist watch was recovered from Sameer @ Amir, which he was wearing on his left arm. On further interrogation accused Sameer @ Amir had disclosed it to be stolen property robbed by him 2 days ago along with his accomplices namely Rahul, Zafar, Nazar & Amir from DND Flyover. He had also disclosed that the Varna car was snatched by him and his associates just 2 days before the date of his apprehension and they had committed the robbery while using the same car. Thereafter, IO had formally arrested the accused Sameer @ Amir in this case vide memo already Ex. PW4/B, bearing his signature at point B. His personal search was conducted and he was arrested vide memo already Ex. PW4/A, bearing his signature at point B. IO also recorded his disclosure statement vide memo already Ex. PW5/C, bearing his signature at point B. PW further deposed that the case property had already been released to the superdar and had been produced in the court during evidence.
14.PW9 Ct. Narender Kumar, No. 3407/SE, deposed that on FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 16/35 03.03.2015, he was posted at Constable at PS Sunlight Colony. On that day, he alongwith Ct Narender no. 3873/SE and SI Bijender had taken accused Sameer to Tikri Khurd to look for another accused Rahul Nazar and Amir but none of his associates could be traced, hence they came back to DND Flyover and accused Sameer had shown the placed of occurrence to the IO and pointing out memo Ex. PW9/A was prepared by the IO bearing his signatures at point A. thereafter, they had also visited Hindon River and accused got medically examined from the hospital and was put behind the lock up.
15.PW10 Ct. Narender Kumar No. 38/73/SE, deposed that on 02.03.2015, he was posted as Constable at PS Sunlight Colony and on that day, he alongwith Ct Narender no. 3407/SE and SI Bijender alongwith accused Sameer @ Amir who was on PC remand, had gone to Shahdara, as per his disclosure statement for recovery and apprehension of other accused persons but neither recovery or apprehension of any coaccused could be made. Thereafter, accused was brought back and sent to the lock up after medical examination. PW10 further deposed that on 03.03.2015, he alongwith he alongwith Ct Narender no. 3407/SE and SI Bijender had taken accused Sameer to Tikri Khurd to look for another accused Rahul Nazar and Amir but FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 17/35 none of his associates could be traced, hence they came back to DND Flyover and accused Sameer had shown the placed of occurrence to the IO and pointing out memo Ex. PW9/A was prepared by the IO bearing his signatures at point A. thereafter, they had also visited Hindon River and accused got medically examined from the hospital and was put behind the lock up.
16.PW11 Ct. Gopal deposed that on 07.03.2015 he was posted as Ct. at PS Sun Light Colony. On that day IO of this case had asked him to go to PS Malviya Nagar. he went to PS Malviya Nagar Malkhana where he received one sealed pullanda alongwith one road certificate. he brought the said pullanda in my safe custody to PS Sun Light Colony and deposited the same in the Malkhana. No tampering was done with the pullanda as long as it had remained in his possession.
17.PW12 Ct. Ankit No. 1178, deposed that on 13.04.2015 he was posted as Ct. at PS Sun Light Colony. On that day on the direction of IO/SI Bijender he had gone to PS Kotla Mubarakpur to bring the case property. In the PS K.M. Pur he met with MHC(M), who had handed over laptop and two mobile phones. He brought the case property to PS Sun Light colony vide road certificate and had deposited the case property in the Malkhana, PS Sun Light Colony. IO recorded his FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 18/35 statement to this effect.
18.PW13 MVI Tasnimuddin Siddiqui deposed that on 19.02.2015 on the request of IO she examined the Car Chevrolet Beat white colour bearing No. DL3CN5013 at PS Sun Light Colony and prepared detailed report which is exhibited as Ex.PW13/A bearing her signature on each page at pointA.
19.PW14 ASI Gurumehar Singh, deposed that on the intervening night of 18/19.02.2015, he was posted as Head Constable at PS Sunlight Colony and his duty hours were 12:00 am to 08:00 am as Duty Officer. Ct. Pradeep brought a rukka to him at about 06.05 am sent by SI Bijender. and handed over same to the computer operator for recording of FIR and he recorded FIR on the basis of said rukka and copy of computerized FIR is Ex.PW14/A bearing his signature at pointA (OSR). He further deposed that he made endorsement on the said rukka Ex.PW14/B at pointA. After registration of FIR he handed over computerized FIR and rukka to Ct. Pradeep for delivering the same to the IO/SI Birjender. he also issued certificate u/s 65B of Indian Evidence Act regarding correctness of the print out of FIR. Said certificate is Ex.PW14/C, bearing his signatures at pointA.
20.PW15 Sh. Dinesh Kumar, Ahlmad in the Court of Ms. Sunena FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 19/35 Sharma, ASJ03, deposed that on that day he had brought the judicial case file of FIR No. 1571/2014, PS Malviya Nagar containing the original kalandara vide DD No. 72B dated 21.02.2015 PS Malviya Nagar, New Delhi. The copy of said kalandara is already exhibited as Ex.PW4/D is exhibited as collectively with the documents annexed with it (OSR).
21.PW16 Insp. Jeet Singh, deposed that on 10.3.2015 he was posted as SI Special Staff, SD. Accused Zaffar @ Bengali and Mohd. Amir were in his custody in case FIR No. 175/2015, PS, KM Pur. The accused were interrogated by him and their disclosure statements were recorded by him. The recovery at the instance of accused Mohd. Amir was effected which related to the present case as per his disclosure so on 10.3.2015 he had given the information regarding arrest of accused and recovery to PS Sun Light Colony vide DD No. 26A. IO/SI Bijender of PS SLC came to his office and necessary documents and case property pertaining to this case were handed over to him. IO recorded his statement u/s 161 CrPC in his office in this regard.
22.PW17 SI Bijender, No. D4548, deposed that on 19.02.2015, he was posted as SI in PS Sunlight Colony. On that day, he was on night emergency duty. On that night, on receipt of DD No. 24A at about FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 20/35 04:20 am, he alongwith Ct. Pardeep reached at the spot at Ring Road DND Loop, New Delhi. At the spot, he found HC Rakam Singh and complainant Tarun Kumar, Parvinder present there. A beat vehicle of white colour bearing Registration No. DL3CN5013 was found stationed. The said vehicle was not locked and was found unlocked. He checked the vehicle casually and found one magazine loaded with 6 live rounds on it. Thereafter, he recorded statement of complainant Tarun Kumar. He further deposed that he also took the measurement of cartridges. On the base of the cartridges, KF and 7.65 was engraved. He had prepared sketch of the magazine and the live cartridges already Ex.PW2/E & F. both bearing his signatures at pointX. he also called crime team for the inspection of the spot and thereafter, he prepared rukka Ex.PW17/A on the statement of complainant Ex.PW2/A and sent Ct. Pradeep to PS for the registration of FIR. Thereafter he made a call to the Mechanical Inspector for the inspection of vehicle and also seized the above 6 live cartridges and magazine after sealed them with the seal of BS and seized them vide seizure memo Ex.PW2/D. It was further deposed that he also prepared the site plan Ex.PW2/B on the pointing of complainant Tarun Kumar. In the meanwhile Ct. Pradeep had returned to the spot after the registration of FIR alongwith copy of FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 21/35 FIR and rukka and handed over the same to me. He recorded statement of PWParminder and seized the abovesaid car vide seizure memo Ex.PW2/C. All above memos bearing his signatures at pointX. Thereafter,he tried to search out accused but could not traced them and then they returned to Police Station. He further deposed that he had recorded the statements of witnesses and deposited the case property in the Malkhana. The report of Mechanical Inspector was also collected by him and the same was placed in file. On 21.02.2015, on receipt of DD No. 45B from the office of Special Staff, SED, that accused Sameer had made a disclosure statement of the present case. On 23.02.2015, he further moved an application before concerned Ld. MM for the production of accused Sameer. On 24.02.2015, accused Sameer was produced in the Court. It was deposed by PW that he had moved an application for the interrogation of the accused. Thereafter, he arrested the accused outside the Court vide memo already Ex.PW3/A, and also recorded disclosure statement of accused Ex.PW3/B. Accused was remanded to J/C by Ld. MM in this case till 02.03.2015. on 02.03.2015. He had moved an application for the police remand of accused Sameer and accused was remanded to two days PC for the search of his other associates. However, during PC none of the FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 22/35 associates of accused could be searched and thereafter accused was produced in the Court and was remanded to J/C. He further deposed that on 10.03.2015, on receipt of DD No. 26A from Special Staff, SED that accused Zafar @ Bengali had made a disclosure statement of this case in case FIR No. 175/2015. On the same, he reached in the office of Special Staff. He had collected the necessary documents of case FIR No. 175/2015. The said documents were the seizure memo of the recovered items u/s 102 Cr.PC. Photocopy of which is Ex.PA. He also collected the photocopies of disclosure statements made by accused Mohd. Zafar @ Bengali and of accused Mohd. Aamir as Ex.PB & PC. He collected the above documents from SI Jeet Singh and placed on record. On 12.03.2015, he moved an application for production of accused Zafar @ Bengali and Mohd. Aamir. They both were produced in the Court on 13.03.2015. He had moved an application for interrogation and formal arrest of both the accused. The said application is Ex.PW17/B and thereafter, he interrogated both the accused and arrested them vide memo Ex.PW17/C and Ex.PW17/D respectively. Both bearing his signatures at pointX. he recorded disclosure statement of accused Zafar @ Bengali and of Aamir Ex.PW17/E and F respectively. Both bearing his signatures at pointX. FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 23/35 Before that on 03.03.2015, accused Sameer @ Aamir had pointed out the spot of incident of this case and accordingly, he prepared pointing out memo Ex.PW9/A bearing his signatures at pointX. My application for formal interrogation and arrest of accused Sameer @ Aamir is Ex.PW17/G. Both the accused persons were remanded to J/C. On 18.03.2015, during Judicial TIP accused Zafar @ Bengali refused to participate in TIP in Tihar Jail. He obtained the copy of said proceedings. On 23.03.2015, during TIP which was got conducted on his application, accused Mohd. Aamir was got identified correctly by the complainant Tarun Kumar. Accused Sameer refused to participate in TIP on the day when he moved an application of his TIP before Ld. MM. On 12.03.2015, he got the TIP of the wrist watch of the complainant conducted which was recovered from accused Sameer @ Aamir by the officials of Special Staff in case FIR No. 175/2015. The complainant had correctly identified his watch. Thereafter, he obtained the attested copy of the said TIP proceedings Ex.PX and placed it on record. It was further stated by PW that he had also collected the crime Team report Ex.PXY from SI Sajjan Kumar and placed it on record. On 28.04.2015, complainant had produced the empty box of his mobile phone make Blackberry which he sealed in a pullanda with the seal of FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 24/35 BS and seized it vide memo Ex.PW17/H, bearing his signatures at pointX. He recorded statement of witnesses. After completion of investigation, he prepared the charge sheet and filed in the Court through SHO and deposited the case property in the Malkhana.
23.PW18 ASI Rakam Singh, deposed that on 18.06.2015, he was posted as HC at PS Sunlight Colony. On that day in pursuance to the process issued U/s 82 Cr.P.C. he went to H.No.148, Tikri Khurd Village, PS Ali Puri, Delhi to execute process to accused Rahul S/o Satbir. The accused was not found at the said address. Thereafter, he pasted copy of process on the abovementioned given address of accused and also got the 'Munadi' done in the locality. Thereafter, he returned and pasted the copy of the process on the notice board of concerned Court. he prepared his report regarding execution of the process which is already Ex.PW1/A bearing his signatures at pointA. On 23.07.2015 his statement to the said effect was recorded in the Court of Sh. Ashok Kumar, MM07 (South East) Saket which is Ex.PW18/A bearing his signatures at pointA. STATEMENT OF ACCUSED
24. Accused was examined u/s 313 Cr.PC. In their defence, all four accused persons stated that all the allegations which are levelled FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 25/35 against them are incorrect and they did not lead any evidence in support of them.
ARGUMENTS OF LD. ADDL. PUBLIC PROSECUTOR FOR THE STATE AND LD. DEFENCE COUNSEL
25. Sh. WasiUr Rahman, Ld. Addl. PP for the State submitted that the recoveries of one Laptop and Mobile phone make Blackberry of PW2, have been effected from the possession of accused Mohd. Amir whereas one wrist watch of PW1 has been recovered from the possession of accused Sameer @ Amir. It was further submitted that both the Victims PW1 Parminder Singh and PW2 Tarun Kumar have identified both the accused persons as Sameer @ Amir and Mohd. Amir and had deposed their role categorically. Therefore, the case against accused Sameer @ Amir and Mohd Amir has been proved beyond reasonable doubt and they maybe convicted for the offences punishable u/s 392/397/411 IPC. However, rest of the accused persons have not been identified by victims and nothing incriminating has been recovered from them. It was further submitted that the charge u/s 174A against accused Rahul has been proved and he may be convicted and held guilty for the said offence.
26. Per contra, Sh. Rizwan Ali Ld. LAC for accused persons submitted that charges were erroneously famed qua accused Rahul u/s 174 A IPC FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 26/35 and that he was wrongly declared to be a proclaimed offender u/s 82 (4) Cr.PC dated 23.07.2015, by Ld. MM. It was further submitted by Ld. Counsel for accused that accused Rahul and Zafar @ Bengali were not identified by any of the witnesses and as such they ought to be acquitted, as they were arrested merely on the disclosure statements. Thus, they may be acquitted for the said offences.
STATEMENT OF REASONS FOR THE DECISION Allegations qua Section 174A IPC qua accused Rahul.
27. It was submitted by Ld. Counsel for accused that charges were erroneously famed qua accused Rahul u/s 174 A IPC and that he was wrongly declared to be a proclaimed offender u/s 82 (4) Cr.PC dated 23.07.2015, by Ld. MM. Ld. Counsel submitted that the testimony of PW18 ASI Rakam Singh would make it explicit that the process u/s 82 Cr.PC was not executed as per law.
28. At this juncture, it would be appropriate to peruse the following extracts of testimony of PW18 ASI Rakam Singh made in his examination in chief on 17.08.2019.
"On 18.06.2015, I was posted as HC at PS Sunlight Colony. On that day in pursuance of the process issued u/s 82 Cr.PC. I went to H.No 148, Tikri Khurd Village, PS Ali Puri, Delhi to execute process to accused Rahul s/o Satbir, the accused was not found at the said address. Thereafter, I pasted copy of accused and also got the 'mundani' done in the locality".FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 27/35
29. Thus, as per the examination in chief, the witness deposed that he went to the house of the accused. However, in his cross examination, the witness avowed as thus:
"The abovesaid address i.e H.No 148 in Tikri Khurd Village could not be located as there was no numbers on the house in the said village. I examined some residents of the village who told me that no person in the same of Rahul @ Satbir was resident of the village. I did not record statement of any such villager. I pasted the process on the main road of the village as above mentioned house could not be located. The 'Mundani' was done by beat of drum, but I have not taken the signature of that person on the report".
30. Thus, it is apparent that in the cross examination it has been elicited that the address of the accused could not be located/identified. Thus, the process u/s 82 Cr.PC was not duly executed. As such, this Court concurs with the submissions of Ld. Counsel for accused that the accused was erroneously declared as proclaimed offender and proceedings u/s 174 A IPC were wrongly initiated against him. Thus, for the charge u/s 174 A IPC, the accused Rahul is hereby acquitted.
Allegations qua Section 397 IPC
31. The allegations qua the offence of 397 IPC were made against the accused persons. However, it was only one of the accused who allegedly robbed the victim Tarun Kumar and Parminder Singh at gun point. To FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 28/35 ascertain the identity of this particular assailant, the prosecution witness examined as PW1 Parminder Singh and PW2 Tarun Kumar. PW1 Parminder Singh averred that the person who was wearing the police jacket put pistol on Tarun Kumar and other boy put pistol on him and made both of them were made to sit on the rear side of the car. However, PW2 whilst deposing qua the person wearing the police jacket, only averred that the said person made inquiries qua traffic violations i.e. inquiry with respect to the factum of driving vehicle at high speed, whether the complainant was having driving license etc. At no point of time, the complainant PW2 Tarun Kumar made any averment that the person wearing police jacket used the revolver or pistol. Thus, there is a discrepancy in the identity of the person who allegedly used the revolver or pistol on the fateful night. The person wearing police jacket was identified by PW2 in court as Mohd Amir. The witness had identified accused Mohd. Amir as the one wearing police jacket even in TIP proceeding. However, the role of using revolver or pistol was not ascribed by this witness. Furthermore, PW1 has deposed in his examination in chief that the person who was wearing the police jacket put pistol on Tarun Kumar whereas PW2 Tarun Kumar has nowhere mentioned this fact in his testimony. This is also a material discrepancy FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 29/35 which creates doubt.
32.Perusal of record reveals that it was accused Mohd. Amir, wearing police jacket who allegedly put the pistol on PW2 Tarun Kumar. However, PW2 Tarun Kumar did not depose to this effect in this Court. Even PW2 deposed that the person who came down from the Chevrolet Beat car was holding gun in his hand and the person wearing jacket of Delhi Police Logo forced him to sit on the rear seat of the Chevrolet Beat car. It was also PW2 who ascribed the role of holding gun to the person who came down from the Chevrolet Beat car, and not to the person who was wearing jacket of Delhi police logo. This throws serious doubts on the version of prosecution. Under these circumstances, accused Mohd. Amir is hereby exonerated and acquitted for the offences u/s 397 IPC as it cannot be said with exactitude that he used the weapon while committing the offence.
Allegations qua Section 392/411/34 IPC
33. At the outset, it was contended by Ld. Counsel for accused that accused Rahul and Zafar @ Bengali were not identified by any of the witnesses and as such they ought to be acquitted, as they were arrested merely on the disclosure statements.
34. At this juncture, it would be apt to peruse the following extracts made FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 30/35 in the examination in chief of PW1 on 23.11.2015.
"I can identify the accused persons involved in the incident, if shown to me. At this stage, the witness correctly identify the accused Sameer @ Amir and Mohd. Amir. He also stated that accused Mohd. Amir was wearing police jacket at the time of incident. The witness failed to identify the third accused Zafar, produced in custody in this case".
35. The above testimony reveals that PW1 was only able to identify two of the accused herein, namely Sameer @ Amir and Mohd Amir and he failed to identify the third accused namely Zafar @ Bengali. Further, till PW1 Parminder Singh was recalled for examination after the arrest of coaccused Rahul who were earlier declared as a Proclaimed offender, PW1 on 17.09.2019, during his examination in chief, deposed as thus;
"I can identify the accused persons involved in the incident, if shown to me. At this stage, the witness correctly identify the accused Sameer @ Amir and Mohd. Amir. He also stated that the accused Mohd. Amir was wearing police jacket at the time of incident. The witness failed to identify the accused Zafar as well as accused Rahul".
36. Further, during his cross examination PW1 categorically deposed that he can not say if accused Rahul had participated in the incident. He denied the suggestion that he did not deliberately identify the accused Rahul in the Court on the day of deposition. Even PW2 deposed during his examination in chief on 23.11.2015 as thus:
"I can identify the accused persons if shown to me. At this stage, the witness has seen the accused persons and has FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 31/35 pointed out to accused Sameer @ Amir and accused Amir. Witness has not identified Zafar Bengali. Witness further stated that accused Mohd. Amir who was wearing the police jacket".
37. Further, the prosecution did not examine PW2 after the arrest of accused Rahul, after he was declared as proclaimed offender. Thus, accused was not identified by this witness either. In view of the above, it is explicit that the case could not prove by the prosecution qua accused Rahul and Zafar @ Bengali and hence, they are hereby acquitted for the offences u/s 392/411/34 IPC. As far as accused Mohd. Amir and Sameer @ Amir are concerned, they have been correctly identified by the star prosecution witnesses i.e. PW1 and PW2. Both the accused persons were identified before the Court. Both the witnesses identified Mohd. Amir as person who was wearing the police jacket at the time of incident.
38. PW2 identified accused Mohd. Amir as a person who was wearing the police jacket, during TIP proceedings. The role was specifically ascribed to Mohd. Amir that he drove their car towards Akshardham and waited for Swift D'zire car to reach there. The witness deposed that they handed over their articles, when asked by the occupants of the car, and handed over their cash and other articles.
39. PW1 had deposed that he handed over two gold rings around 20 FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 32/35 grams, wrist watch make Tissot, one mobile phone make OPPO of black colour and about Rs. 60007000/ in cash. He also deposed that they took one Black Berry mobile phone and one Apple Iphone, two gold rings and some cash from PW2 Tarun. It was also submitted that they also took their car alongwith laptop make Lenovo. PW2 also deposed that he handed over his Blackberry mobile phone, two gold rings, Rado watch and wallet containing some cash around Rs. 3000/ out of fear to the assailants. He also deposed that assailants fled with car having the laptop make HP.
40. PW1 further deposed that he got his wrist watch released on superdari and he identified his articles as Ex. P1. PW2 also deposed that he got his mobile phone, laptop released from the court on superdari and he identified the same collectively as Ex. P2, Ex. P3 and Ex. P4.
41.As far as recoveries are concerned, PW4 ASI Vijay Kumar deposed that wrist watch of Tissot was recovered from the possession of accused Sameer @ Amir. It was sealed in pullanda, sealed with seal of VKH. PW4 further deposed that accused Sameer @ Amir was also arrested and recovered watch was seized by arrest and seizure memos Ex. PW4/A and PW4/B. The said witness was willing to identify the case property. Further, on 05.03.2015, the abovesaid laptop, blackberry FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 33/35 mobile phone, wrist watch make tissot was recovered from the house of accused Mohd. Amir i.e House number A4/54 Sawran Jyanti Vihar, Tikri Khurd, Delhi, during investigation of another case i.e FIR No. 175/2015, PS K.M PUR. Thus, accused Sameer @ Amir and Mohd Amir are hereby convicted for the offences punishable u/s 392/411/34 IPC.
Conclusion
42.In view of the above, it is clear that the prosecution has failed to prove its case beyond reasonable doubt for the offence punishable u/s 174A IPC against accused Rahul. Accordingly, he is hereby acquitted for the offences punishable u/s 174A IPC. However, prosecution has successfully proved its case beyond reasonable doubt for the offences punishable u/s 392/411/34 IPC against accused Sameer @ Amir, Mohd Amir. However, the prosecution was unable to prove its case beyond reasonable doubt against accused Zafar @ Bengali and Rahul. Accordingly, they are hereby acquitted for the said offences. Further, prosecution has failed to prove its case beyond reasonable doubt for the offence punishable u/s 397 IPC against accused Mohd Amir and therefore, he is hereby acquitted for the offences punishable u/s 397 IPC .
FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 34/35
43. Put for arguments on quantum of sentence on 06.10.2022. Announced in the open court on (ARUL VARMA) ASJ04 & Spl. Judge (NDPS) SouthEast District Saket Courts, New Delhi FIR No.101/2015 State Vs. Sameer @ Amir and ors Page No. 35/35