Delhi District Court
State vs (1)Mahesh Verma on 12 September, 2012
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE &
ADDL. SESSIONS JUDGE, I/C (EAST) : KARKARDOOMA
COURTS, DELHI.
SC No.83/2006
Unique Case ID No.02402R0347892005
FIR No.161/2005
Police Station Krishna Nagar
Under Section 392/397/411/120B/34 IPC
State Versus (1)Mahesh Verma
S/o Sh. Kishan Swarup Verma
R/o X3047, Gali No.4, Raghubarpura,
Delhi.
(2)Aftab @ Rashid
S/o Sh. Manjoor Alam
R/o 3/34, Krishna Kunj, Delhi.
(Juvenile)
(3)Mohd. Yusuf
S/o Sh. Mohd. Fateh
R/o A287, Mandawali, Kuddha Marg,
Delhi.
(4)Jitender @ Jeetu
S/o Sh. Puran Singh
R/o Mohalla Subhash Nagar,
SC No.83/2006 State Vs. Mahesh Verma etc. Page 1 of 39
PO Murari Nagar, PS Khurja Dehat,
Distt. Bulandshahar, U.P.
(5)Nafeesul Haq
S/o Sh. Fakrul Haq
R/o 1614, Mohalla Tarirpur Nadi
Kinare, Sitapur, U.P.
(Declared P.O. Vide order dt. 2.7.12)
(6)Rajiv Chopra
S/o Sh. Kewal Kishan Chopra
R/o 185, Gali No.8, East Azad Nagar,
Delhi.
(7)Naeem Akhtar
S/o Sh. Mohamaddin
R/o Village Koyalpur Dulali,
PS Bahadur Ganj, Distt. Kishan Garh,
Bihar.
Date of Institution : 24.02.2006
Date of judgment reserved : 04.09.2012
Date of judgment : 12.09.2012
JUDGMENT
Seven accused, persons, namely, Mahesh Verma, Aftab @ Rashid (Juvenile), Mohd. Yusuf, Jitender @ Jeetu, Nafeesul Haq (already P.O.), Rajeev Chopra and Naeem Akhtar have been sent SC No.83/2006 State Vs. Mahesh Verma etc. Page 2 of 39 to face trial by the police of Police Station Krishna Nagar in FIR No. 161/2005 under Section 392/397/ 411/120B/34 IPC. 2 Facts, in brief, are that on 15.04.2005, ASI Bhagwat Singh (PW26) received DD No.48B Ex.PW26/C. On receipt of the same, he along with Ct. Rakesh (PW15) reached the spot i.e. H.No.21, Gali No.1, Shankar Nagar, Raghubar Pura Road, near shiv Mandir where one Smt. Kiran Mittal met them and gave her statement Ex.PW1/A. 3 In her statement Ex.PW1/A, Smt. Kiran Mittal(PW1) had stated that she was a housewife and was residing at the said address. On 15.04.2005, she was present in her house along with her son Himanshu and daughter Pallavi, whereas her husband had gone to his readymade garments shop at Gandhi Nagar. At about 2.15 p.m., she went to the main gate on hearing the doorbell and saw three persons standing there. On inquiry for their arrival, they told that they had come to change electricity meter. She opened the door. One of those boys started checking electricity meter, in the meanwhile another person came and asked his associates whether meter had been changed or not. Out of those persons, one person went to first floor to check the inverter and in the meanwhile, she went to the kitchen to prepare SC No.83/2006 State Vs. Mahesh Verma etc. Page 3 of 39 meals for her husband. In the meantime, two of those persons, came to the kitchen, showed her revolver and knife and threatened her not to raise alarm, else her children would be killed. They snatched gold chain from her neck and took her to another room where her children were also overpowered by remaining associates on the point of knife and pistol. In the meantime, doorbell again rang. One of the accused, went to open the door and brought servant Puneet inside the house on the point of knife. Puneet had come to collect lunch for her husband. Accused persons put plastic tape on the mouth of complainant and Puneet. They searched almirahs and double bed lying in the room and also took search of the almirah lying in another room. The complainant saw that accused took away cash of about one lac, silver glass, ornaments, four wearing golden bangles, two gold chains and Mangalsutra etc. lying in almirah. Accused persons also took away report card of her son Himanshu. She also stated that three persons out of those had earlier come to her house on 31.03.2005 for meter checking.
4 On the statement Ex.PW1/A, SI Bhagwant Singh (PW26) made endorsement Ex.PW26/A on the basis of which Duty Officer HC Babu Ram(PW8) recorded FIR Ex.PW8/A. Thereafter, at SC No.83/2006 State Vs. Mahesh Verma etc. Page 4 of 39 the instance of complainant(PW1), IO(PW26) prepared site plan Ex.PW26/B. Sketches of accused persons were got prepared with the help of the complainant. Complainant also gave her supplementary statement stating therein that on checking of articles of her house, she also found that Video Camera, binoculor, Handycam camera make Sony, bag of Handycam, one gents wrist watch make Classic were also found missing and that robbers had also taken them away on the day of incident.
5 Thereafter, on the basis of secret information, accused Jeetu @ Jitender was arrested vide arrest memo Ex.PW5/A from Ambedkar Park and his personal search Ex.PW5/B was conducted. The watch Ex.P6 looted in the incident was recovered from him. The same was seized vide seizure Ex.PW5/C. He made disclosure statement Ex.PW5/D and pointed out the place of incident vide pointing out memo Ex.PW5/E. On 26.4.2005, TIP of accused Jitender was got conducted though PW22 Ms. Barkha Gupta, the then Ld. M.M. vide application Ex.PW22/F. But accused Jitender refused to join the TIP proceedings and his statement Ex.PW22/G was recorded. Certificate Ex.PW22/H regarding correctness of TIP proceedings was given by PW22 and consolidated TIP proceedings are Ex.PW22/I. SC No.83/2006 State Vs. Mahesh Verma etc. Page 5 of 39 Copy of TIP proceedings were given to IO vide his application Ex.PW22/J. On 30.04.2005, accused Jitender took the police party to property No. B99/1, Gali No.2, Jagat Puri which was a shop from where he got recovered one silver glass Ex.P4 and silver idol Ex.P5 of Ganesha which were seized vide memo Ex.PW9/A. 6 On 3.5.2005, accused Mahesh Verma, Mohd. Yusuf, Nafis Ul Haq(already PO) and Aftab @Rashid ( Juvenile) were arrested in FIR No. 210/2005, PS Kalyan Puri and their disclosure statements were recorded. In pursuance of disclosure statement, accused Mahesh Verma got recovered one Handicam Ex.P2 make Sony which was seized vide seizure memo Ex.PW10/B. Accused Mohd. Yusuf got recovered one binoculor Ex.P1 from his house which was seized vide seizure memo Ex.PW10/A. A DD No. 29B was received in PS Krishna Nagar regarding arrest of these accused persons. On 7.5.2005, with the permission of court, SI Bhagwat Singh(PW26) arrested these accused persons vide arrest memos Ex.PW26/K1 to Ex.PW26/K4. Their disclosure statements Ex.PW26/A to Ex.PW26/D were recorded. Application Ex.PW22/K was moved by the IO for conducting their TIP but the same was dismissed in default vide order Ex.PW22/L. During interrogation, SC No.83/2006 State Vs. Mahesh Verma etc. Page 6 of 39 accused Mahesh disclosed that accused Rajiv Chopra gave them the tip. All the above four accused pointed the spot vide pointing out memos Ex.PW26/E to Ex.PW26/H. Accused Nafis Ul Haq(already PO) got recovered one silver glass Ex.P4 from the house of accused Yusuf which was taken into possession vide seizure memo Ex.PW26/I. Disclosure statement Ex.PW26/J of accused Mahesh was recorded. 7 On 23.05.2005, SI Bhagwat Singh(PW26) along with Ct. Inderveer(PW11) and Satish Mittal(PW2) reached the house of accused Rajiv Chopra who was apprehended. His disclosure statement Ex.PW11/B was recorded. He was arrested vide arrest memo Ex.PW2/A and his disclosure statement Ex.PW2/B was recorded. IO also recorded disclosure statement Ex.PW11/A of accused Jitender. On 28.05.2005, IO(PW26) reached PS Kalyan Puri and obtained two parcels containing binoculor and Video camera which were seized vide seizure memo Ex.PW13/A. 8 During interrogation, on 18.05.2005, TIP of accused Mahesh Verma, Aftab @ Rashid(Juvenile), Mohd. Yusuf and Nafis Ul Haq (already PO) was conducted by Anil Kumar Sisodia (PW25) vide TIP proceedings Ex.PW25/A to Ex.PW25/D during which accused Mahesh Verma, Aftab @ Rashid (Juvenile) and Mohd. Yusuf refused SC No.83/2006 State Vs. Mahesh Verma etc. Page 7 of 39 to participate in TIP proceedings, whereas accused Nafeesul Haq (already PO) was not identified by Smt. Kiran Mittal. 9 On 20.06.2005, accused Naeem Akhtar was arrested in FIR No. 348/2005 under section 399/402 IPC, PS Vivek Vihar by ASI Krishan Pal (PW17). Accused was interrogated and disclosed his involvement in the present case of robbery. On receiving the information, SI Chander Pal Singh (PW23) moved an application for production of accused Naeem Akhtar. He was produced in the Court and was formally arrested vide arrest memo Ex.PW21/B and his disclosure statement Ex.PW21/A was recorded. On 26.07.2005, application Ex.PW22/A for conducting TIP of accused Naeem Akhtar was moved by SI Chander Pal Singh (PW23). His TIP was conducted by Ms. Barkha Gupta, the then Ld. M.M. During TIP, accused Naeem Akhtar refused to join the same. His statement Ex.PW22/B was recorded. Certificate Ex.PW22/C regarding correctness of proceedings was given by PW22 and consolidated TIP proceedings are Ex.PW22/D. On the application Ex.PW22/E, copy of TIP proceedings were supplied to IO.
10 During investigation, an application for conducting TIP of case property i.e. Binoculor and Video camera was moved by SC No.83/2006 State Vs. Mahesh Verma etc. Page 8 of 39 the IO. Sh. B.S. Chumbak (PW3), the then Ld. M.M. conducted TIP of the same. Vide order Ex.PW3/A, IO was directed to produce the case property. On 31.03.2005, IO produced the witness Satish Mittal (PW2) who identified the case property. The TIP proceedings are Ex.PW3/A1 and certificate regarding correctness thereof is Ex.PW3/B. IO obtained copy of the TIP proceedings vide application Ex.PW3/C. During investigation, Ct. Rakesh Kumar (PW4) lifted finger prints from the spot and gave his report Ex.PW4/A. The spot was also got photographed by Ct. Ramesh (PW14). He proved the positive photographs as Ex.PW14/1 to 5 and negatives thereof as Ex.PW14/6 to Ex.PW14/10.
11 The case property of the present case were deposited in the malkhana with MHC(M) HC Sushil Kumar (PW20) vide entries Ex.PW20/A to Ex.PW20/D. 12 After completion of the investigation, chargesheet was filed in the Court of Ld. M.M. who after complying with provisions of section 207 Cr.P.C. committed the case to the Court of Sessions which in turn assigned the case to this Court for trial in accordance with law.
13 After hearing Ld. Counsels for the accused persons SC No.83/2006 State Vs. Mahesh Verma etc. Page 9 of 39 and Ld. Addl. PP for the State, charges under Section 120B IPC were framed against all the accused persons except accused Aftab @ Rashid (Juvenile). A separate charge under Section 395 IPC was framed against accused Mahesh Verma, Mohd. Yusuf, Jitender @ Jeetu, Nafeesul Haq (already P.O.) and Naeem Akhtar. Separate charge for commission of offence under section 397 IPC was framed against accused Mohd. Yusuf, Jitender @ Jeetu and Naeem Akhtar. Separate charges under Section 411 IPC were framed against accused Mahesh Verma, Mohd. Yusuf, Jitender @ Jeetu and Nafeesul Haq (already PO) for possession of robbed articles. Accused persons pleaded not guilty to the charges framed against them and claimed a trial. 14 During the course of investigation, accused Aftab @ Rashid was found to be juvenile, therefore, he was referred to Juvenile Justice Board. During the trial of the case, accused Nafeesul Haq stopped appearing in the Court and after due procedure, he was declared proclaimed offender on 2.7.2012.
15 In order to prove its case, prosecution has examined 26 witnesses. PW1 Smt. Kiran Mittal is the complainant. PW2 Satish Mittal, PW6 Pallavi Mittal, PW7 Himanshu Mittal and PW18 Puneet are the alleged eye witnesses. PW24 Praveen Kumar was the worker SC No.83/2006 State Vs. Mahesh Verma etc. Page 10 of 39 in the shop of PW2. PW3 Sh. B.S. Chumbak, PW22 Smt. Barkha Gupta and PW25 Sh. Anil Kumar Sisodia, the then Ld. MMs conducted TIP proceedings of case property and accused persons. PW4 Ct. Rakesh Kumar lifted finger prints, whereas PW14 Ct. Ramesh took photographs of the spot. PW8 HC Babu Ram was the duty officer, whereas PW20 HC Sushil Kumar was the Malkhana Incharge in the PS at the relevant time. PW12 HC Vinod Kumar, PW13 HC Ashok and PW16 Insp. Virender Singh are the witnesses with regard to FIR No. 210/2005 PS Kalyan Puri. PW17 ASI Krishan Pal and PW19 HC Amar Chand are the witnesses with regard to FIR No.348/2005 PS Vivek Vihar. PW5 HC Anil Kumar, PW9 Ct. Om Parkash, PW10 Ct. Sushil, PW11 Ct. Inderveer, PW15 HC Rakesh Kumar and PW21 Ct. Sanjeev Kumar remained associated in the investigation conducted by Investigating Officers PW26 SI Bhagwat Singh and PW23 SI Chander Pal Singh.
16 After completion of prosecution evidence, statements of accused persons under Section 313 Cr.P.C. were recorded in which they have denied the case of the prosecution and have stated that they have been falsely implicated in the present case and recovery was planted upon them. Except accused Jitender @ Jeetu, all other accused SC No.83/2006 State Vs. Mahesh Verma etc. Page 11 of 39 opted not to lead defence evidence. However, no evidence in defence was led by accused Jitender @ Jeetu.
17 I have heard. Ld. Addl. PP for the State as well as Ld. Counsels for accused persons. I have meticulously gone through their submissions and material available on record.
Criminal Conspiracy & Robbery 18 Case of the prosecution is that a criminal conspiracy was hatched by all the accused persons to commit dacoity at the house of the complainant. It is also case of the prosecution that except accused Rajiv Chopra, all the accused persons including accused Nafeesul Haq (already PO) and Aftab @ Rashid (Juvenile) committed dacoity in the house of complainant Smt. Kiran Mittal (PW1) on 15.04.2005 and at that time her children were also present in the house. It is also case of the prosecution that Puneet, servant of the complainant, also came to the house of complainant when accused persons were already in the house and were committing dacoity. 19 Complainant Smt. Kiran Mittal (PW1) has testified that on 15.04.2005, she was present in her house along with her children Himanshu and Pallavi. At about 2.15 p.m., doorbell rang up. She went to the main gate and saw three persons standing outside. She SC No.83/2006 State Vs. Mahesh Verma etc. Page 12 of 39 asked as to why they had come on which they replied that they had come to change the electricity meter. She opened the gate and they all came inside the house. One of them started checking meter. In the meanwhile, one more associate of those persons also came and asked them whether meter had been changed. Out of those four persons, one went to the first floor on the pretext of directing the supply of inverter. She went to the kitchen as she had to prepare food for her husband. Two persons out of those four persons came to kitchen and they were having knife and revolver. They threatened her not to raise alarm at the point of revolver and knife, otherwise her children would be finished. They took her to the room of her children where two persons were already present and had put her children at the point of revolver. In the meanwhile, doorbell again rang up as servant Puneet had come to take tiffin for her husband. One of those four persons opened the gate, took Puneet inside the house at the point of knife and was brought in the room where they were present. She further stated that those persons affixed plastic tape on her face as well as on the face of Puneet and then they started searching almirahs and bed. She saw that those persons had taken rupees one lac cash, two silver glasses, four golden bangles which she was wearing, two gold chains and one SC No.83/2006 State Vs. Mahesh Verma etc. Page 13 of 39 Mangal Sutra lying in the almirah. They had broken the gold chain which she was wearing. They had taken Himanshu to another room, checked almirah of that room and had taken away report card of VIII Standard of Himanshu. After the incident, those persons fled away. She telephoned her husband and called him. Thereafter, they called the police at number 100. She lodged the complaint Ex.PW1/A. They were taken to Police Headquarters for getting prepared sketches of accused persons but same could not be prepared. She further stated that after some days, they were called in PS where they were shown two silver glasses, one statue of Lord Ganesha, one Handicam, one Binoculor and one wrist watch which were identified by her to be the same which were looted from her house. She identified Binocular as Ex.P1, Handicam as Ex.P2, Silver glasses as Ex.P3 and Ex.P4 and Silver Statue as Ex.P5 in the Court.
20 The complainant (PW1) did not identify the accused persons present in the court. She stated that accused present in the Court were not the persons who came to her house on 15.04.2005 and committed dacoity.
21 Complainant (PW1) was declared hostile by the prosecution and was cross examined by Ld. Addl. PP for the State. In SC No.83/2006 State Vs. Mahesh Verma etc. Page 14 of 39 her cross examination by Ld. Addl. PP, she has stated that when she had gone to PS for identification of recovered articles, she had seen one Jitender, accused present in the Court whom she identified as one of the robbers. But she voluntarily stated that her daughter identified that person, but she was upset at that time and was under wrong impression as due to the incident, she was suffering from depression and was under treatment. She denied that on that day she identified accused Naim and Jitender who firstly came to change the meter and accused Mohd. Yusuf to be the person who along with his associates restrained her at the point of katta and knife. She denied having stated to the police that she did not identify accused Nafeesul Haq (already PO) during TIP proceedings as he had threatened to finish her and her children. She denied that she was intentionally not identifying accused persons.
22 From the testimony of the complainant (PW1), though it stands established that incident of dacoity had taken place at her house on the day of incident, nevertheless it does not stand established that accused persons were the persons who had committed said crime as she has failed to identify any of the accused persons. Therefore, there is nothing in the testimony of the complainant (PW1) to link any SC No.83/2006 State Vs. Mahesh Verma etc. Page 15 of 39 of the accused with the commission of dacoity committed at her house. In her examination in chief, she stated that on the day of incident, dacoity was committed in her house but failed to identify any of the accused being dacoits. During her crossexamination also, complainant (PW1) has also denied that in the police station, she identified any of the accused persons when she had gone to identify the recovered articles. She categorically stated that accused Jitender was identified by her daughter. But she has clarified that her daughter was upset and under depression due to the incident of dacoity. The complainant (PW1) has not stated anything against any of the accused. So, the testimony of the complainant is completely of exonerating nature and do not connect any of the accused persons as the perpetrator of the crime in the present case.
23 PW6 Pallavi is the daughter of the complainant who is another star witness of the prosecution as she was also present in the house at the time of commission of alleged dacoity. She has deposed that about two years ago, on 15.4.2005, her brother Himanshu had come back from school at about 2.00 p.m. She and her mother were present in the house and were taking food, when someone rang the doorbell. Her brother went near the door and the persons at the door SC No.83/2006 State Vs. Mahesh Verma etc. Page 16 of 39 told her brother that they had come to check electricity meter, so he opened the door. When her mother was busy in kitchen, those 34 persons started checking meter and in the meantime, electricity failed. One of those persons put the barrel of pistol in the mouth of her brother and 2/3 persons went inside the kitchen near her mother. Those persons asked her mother to hand over whatever she had and she handed over jewellery and cash to them. They kept ornaments and cash and left the house after bolting it from outside. This witness (PW6) stated that she could not identify those persons who had entered her house and robbed them of jewellery and cash on the point of pistol. She stated that none of those persons was present in the court. 24 This witness was also declared hostile by the prosecution and was crossexamined by Ld. Addl. PP for the State. During crossexamination, witness (PW6) has stated that police did not record her statement on 15.4.2005. She denied having stated to the police that she could identify the persons who had entered their house and robbed them. She did not remember if she had come to Court on 2.6.2005 along with her mother and brother. She stated that her statement was not recorded by police on that day. She denied that she had pointed out accused Jitender as the person who along with his SC No.83/2006 State Vs. Mahesh Verma etc. Page 17 of 39 accomplices robbed them on the point of knife or katta. She further denied that accused Mahesh Verma, Mohd. Yusuf, Jitender, Nafeesul Haq and Naim Akhtar were the same persons who had taken jewellery and cash from their house on the point of knife and katta. She was confronted with statements mark X6 and Y6 allegedly made to the police which she denied having ever made.
25 The perusal of testimony of PW6 Pallavi Mittal also does not show anything against the accused persons as she had stated that she had not made any statement to the police. Even she had not identified the accused persons as the dacoits. Though, she has admitted that the incident of dacoity had taken place at her house, but she has not identified the accused persons as the persons who committed dacoity on the point of knife and pistol/revolver. She has also denied that any of the accused had taken away their cash, jewellery or other articles. So, from the testimony of this witness also, the prosecution does not get any help to link the accused persons with the present case. Even the case property was not put to the witness to get it identified from her.
26 Prosecution has also examined another star witness, namely, Himanshu Mittal (PW7) who was also allegedly present at the SC No.83/2006 State Vs. Mahesh Verma etc. Page 18 of 39 house at the time of commission of alleged dacoity. He deposed that on 15.04.2005, he came back from his school, his mother served food to him and to his sister Pallavi. In the meantime, doorbell rang and he rushed to the door. 23 persons were standing at the door and told that they had come to check electric meter. They switched off the main line of inverter and electricity failed. 23 more persons entered their house. One of those persons pointed pistol on his head. Those persons took away jewellery, cash, Handicam and Binocular from their house and went away within 15 minutes. After having a look in the court, this witness stated that he could not identify any of those persons amongst the accused persons present in the court. 27 This witness was declared hostile by the prosecution and was cross examined by Ld. Addl PP during which he stated that he denied having made statement to the police. He denied having stated to the police that he could identify those persons if shown to him. He denied that accused Mahesh Verma, Mohd. Yusuf, Jitender, Nafeesul Haq (already PO) and Naim Akhtar were the same persons who had taken away jewellery and cash from their house on the point of knife and katta.
28 The perusal of testimony of PW7 Himanshu Mittal is SC No.83/2006 State Vs. Mahesh Verma etc. Page 19 of 39 also of no help to the prosecution as he failed to identify any of the accused being dacoits. He has denied that he made statement to the police. Even he had not identified the accused persons as the dacoits. From his testimony, it stands established that dacoity was committed in his house on the day of incident but he had not identified any of the accused being dacoits who had committed dacoity in his house. He has also denied that any of the accused had taken away their cash, jewellery or other articles. So, from the testimony of this witness also, the prosecution does not get any help to link the accused persons with the present case. Even the case property was not put to the witness to get it identified from him.
29 It is also case of the prosecution that Puneet (PW18) had also witnessed the incident of dacoity as he had gone to the house of the complainant to take lunch box for his master. Puneet (PW18) deposed that in the year 2005, he used to work as Salesman at Mittal Dresses and its owner was Satish Mittal. On 15.04.2005, he had gone to the house of Satish Mittal to take his lunch. He rang the door bell but it was not opened for about 10 minutes. After 10 minutes, door was opened, there were some persons and one of them dragged him inside the house on the point of knife. He could not tell as to how SC No.83/2006 State Vs. Mahesh Verma etc. Page 20 of 39 many persons were present inside the house as there was no electricity and it was dark inside. They made him sit in the house. Those persons took his money and mobile phone. Inside the house, wife of Satish Mittal and his two children were present. Those persons tied his mouth and mouth of children with tape. However, mouth of wife of Satish Mittal was not tied with the tape. Thereafter, those persons left the house with valuables looted by them. He could not tell how many persons were there who left the house after committing the offence. Police came at the spot and he was also called at PS. He had stated to the police that he could not identify those persons. He did not identify accused persons present in the court. This witness was also declared hostile by the prosecution and was cross examined by Ld. Addl. PP for the State.
30 During cross examination by Ld. Addl. PP, he denied having stated to the police that he could identify those four Badmash. He denied that accused Naim, Jitender, Yusuf and Nafeesul Haq (already PO) were the same persons who entered the house of Satish Mittal and committed robbery. He denied that he had been won over by accused persons or for that he was not identifying them. 31 The testimony of PW18 Puneet is also of no help to SC No.83/2006 State Vs. Mahesh Verma etc. Page 21 of 39 the prosecution as he had not identified any of the accused being dacoits. There is nothing in the testimony of this witness from which any of the accused be connected with the commission of crime of the present case.
32 Though, the prosecution has established the incident of dacoity on the day of incident in the house of the complainant (PW1), but prosecution has failed to bring anything on record to connect the accused persons with the same.
33 It is also alleged against accused persons that they along with accused Nafeesul Haq (already PO) and Aftab @ Rashid (juvenile) criminally conspired with each other and in furtherance of the said conspiracy, dacoity in the house of the complainant was committed.
34 To prove the criminal conspiracy, prosecution has examined PW2 Satish Mittal, husband of the complainant who has stated that he was doing readymade garments business at Ashok Gali, Gandhi Nagar, Delhi. About a year back, he had received a call from his wife Kiran Mittal to inform that a robbery had taken place in their house. He came to his house and informed the police at No. 100. Police came at the spot and did investigation. He could not identify SC No.83/2006 State Vs. Mahesh Verma etc. Page 22 of 39 those robbers as he was not present at the time of incident. He was also declared hostile by the prosecution and was cross examined by Ld. Addl. PP for the State.
35 In his cross examination by Ld. Addl PP for the State, he stated that one Rajeev Chopra used to work with him about 23 three years back and he was turned out from the job. He was not certain whether his statement was recorded or not. He identified Rajiv Chopra as the same person who worked with him. He also stated that after 15/20 days of the incident, he informed police that accused Rajeev Chopra told someone that he informed other persons about his house for committing dacoity. He further stated that Rajiv Chopra showed his house to other gunda elements and told them that lot of money lies in his house, so dacoity should be committed there. He admitted that accused Rajeev Chopra was arrested at his instance. 36 During cross examination by Ld. Defence counsel of accused Rajeev Chopra, PW2 stated that he had orally stated to the police about Rajiv Chopra after 20 days of the occurrence. He had mentioned the name of the person with whom Rajiv Chopra had discussed the commission of robbery. He stated that he mentioned the name of that person in his statement to the police. He was confronted SC No.83/2006 State Vs. Mahesh Verma etc. Page 23 of 39 with his statement Ex.PW2/DA where it was not so recorded. He further stated that discussion of accused Rajeev Chopra with that person had not taken place in his presence. He admitted that he did not have any personal knowledge about the discussion. 37 Prosecution has also examined PW24 Praveen Kumar, another worker of Satish Mittal (PW2). He stated that one Rajeev used to visit Satish Mittal and asked him to inform as and when Satish Mittal carried money with him. He did not feel good and informed Satish Mittal. He further deposed that Rajeev told him that he would please him with enough money if he informed whenever Satish Mittal carried heavy amount from the shop. After a few months, he received telephonic message from Satish Mittal that dacoity had been committed in his house.
38 During cross examination, he stated that there was 89 months gap between the incident and when accused Rajeev asked him to inform about carrying of heavy amount by Satish Mittal. He informed Satish Mittal just after 23 days of the talk which took place between him and accused Rajeev.
39 From the testimony of PW2 Satish Mittal, it emerges that he came to know that accused Rajeev Chopra was involved in the SC No.83/2006 State Vs. Mahesh Verma etc. Page 24 of 39 present case as Rajeev Chopra told someone that he informed about dacoity in his house and that Rajeev showed house of PW2 to gunda elements. PW2 has stated that he had given the name of that person in his statement to the police but when confronted with his statement it was not found mentioned therein.
40 If for the sake of argument, testimony of PW2 is presumed to be correct, it was expected from him to give the name of the person whom accused Rajeev Chopra had informed about the dacoity. Prosecution has neither examined nor cited any witness to establish the story introduced by PW2 that Rajeev Chopra hatched a criminal conspiracy along with his associates to commit dacoity at house of Satish Mittal. As per testimony of PW24 Praveen Kumar, accused Rajeev asked him about carrying of money by Satish Mittal. But the fact remains that this witness stated that the said fact was asked by accused Rajeev Chopra 89 months prior to the date of incident, which rules out any immediate conspiracy prior to commission of offence of the present case.
41 No other evidence has been produced by prosecution to prove its case that there was any prior meetings of mind among accused persons for committing dacoity. Even acquaintance inter se SC No.83/2006 State Vs. Mahesh Verma etc. Page 25 of 39 accused persons is not established as no evidence in this regard has been adduced by the prosecution. Moreover, any statement or communication made or exchanged between accused persons is relevant to prove conspiracy if it was made when the conspiracy was on its feet. Any statement or communication made after accomplishment of the goal of the criminal conspiracy is irrelevant to prove conspiracy. Therefore, in the present case also, alleged communication made by accused Rajeev Chopra to somebody informing him about the dacoity at the house of Satish Mittal renders not assistance to the case of the prosecution. Thus, prosecution can not derive any help from such statement.
42 It is settled law that conspiracies are hatched in the pitch dark secrecy and security planned and direct evidence of those are hardly available. I have gone through the judgment of Hon'ble Supreme Court in case of K.R.Purushothaman vs. State of Kerala, AIR 2006 SC 35 in which it was observed as under : "To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by an illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every details of the conspiracy. Neither it is necessary that every one of the conspirators takes active SC No.83/2006 State Vs. Mahesh Verma etc. Page 26 of 39 part in the commission and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implications. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the Court to keep in mind wellknown rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the accused is possible. The criminal conspiracy is an independent offence in Indian Penal Code. The unlawful agreement is sine qua non for constituting offence under Indian Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two of more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of the agreement." 43 I have also gone through another judgment in case of Shivnarayan Laxminarayan Joshi Versus State of Maharashtra (reported in 1980 SCC (Cri.)493), in which the Hon'ble Supreme has observed that it is manifest that a conspiracy is always hatched in SC No.83/2006 State Vs. Mahesh Verma etc. Page 27 of 39 secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design which has been amply proved by the prosecution as found as a fact by the High Court.
44 In the present case, prosecution has examined the complainant (PW1), her children (PW6 and PW7) and Puneet (PW18) who are alleged to be the eye witnesses of the dacoity committed in the house of the complainant. All these witnesses have not stated anything against any of the accused. They have not identified any of the accused as dacoits. There is no other evidence against the accused persons that they criminally conspired with each other to commit the dacoity in the house of the complainant (PW1). Even the prosecution has not produced any material or circumstance from which it can be inferred that these accused persons knew each other prior to the incident of the present case.
45 In view of above discussion, I am of the considered opinion that the prosecution has failed to establish that there was a prior meeting of mind between accused persons to commit robbery at the house of the complainant (PW1). In the absence of any evidence SC No.83/2006 State Vs. Mahesh Verma etc. Page 28 of 39 with regard to criminal conspiracy, I am of the view that prosecution has failed to prove the charge of criminal conspiracy against accused persons. Prosecution has also failed to bring any evidence against accused Mahesh Verma, Mohd. Yusuf, Jitender @ Jeetu and Naeem Akhtar that they committed dacoity in the house of the complainant on the day of incident. Consequently, the prosecution has failed to prove the charge under Section 120B IPC and also under Section 395 IPC against accused persons.
Identity of accused persons 46 The identity of accused Mahesh Verma, Mohd.
Yusuf, Jitender @ Jeetu and Naeem Akhtar being dacoits is in dispute. Identification of these accused persons has not been established from the testimony of eye witnesses complainant (PW1), her daughter Pallavi Mittal (PW6), her son Himanshu Mittal (PW7) and Puneet (PW18) in the Court. In their entire testimony, all these witnesses have stated that accused persons were not the persons who had committed dacoity in the house of the complainant on the day of incident. These circumstances show that accused Mahesh Verma, Mohd.Yusuf, Jitender @ Jeetu and Naeem Akhtar have not been identified by the complainant (PW1) as well as by PW6, PW7 and SC No.83/2006 State Vs. Mahesh Verma etc. Page 29 of 39 PW18 as dacoits. All these witnesses have categorically stated that accused persons were not the persons who comitted dacoity in the house of the complainant on the day of incident of ornaments, cash, silver glasses, silver idol, Handicam, Binocular etc. on the point of knife and pistol/ revolver.
47 I have gone through the ratio of judgment in case titled Prem Singh vs. State of (N.C.T.) of Delhi (Crl. Appeal No.589 of 2002 decided by Hon'ble Supreme Court on 24.04.2009) in which it was held that when the witness/injured could not identify the accused to be the person who fired at him, accused could not have been convicted for offence charged. In the present case also, the identity of accused Mahesh Verma, Mohd. Yusuf, Jitender @ Jeetu and Naeem Akhtar being the perpetrators of crime has not been established. All the eye witnesses i.e. complainant (PW1) as well as her daughter (PW6), her son (PW7) and Puneet (PW18) have not identified accused persons as the dacoits.
48 I have also gone through another judgment in case titled Chellappan Mohandas and others vs. State of Kerala AIR 1995 SC 90 wherein the conviction of appellants was set aside as the eye witnesses turned hostile and gave a distorted version. In another case SC No.83/2006 State Vs. Mahesh Verma etc. Page 30 of 39 titled State of UP vs. Shri Krishan AIR 2005 SC 762, the Hon'ble Supreme Court has upheld the acquittal of accused persons while observing that eye witnesses of the incident have turned hostile and it was not a case to interfere with an order of acquittal. The ratio of above authorities is squarely applicable to the facts of the present case as all the eye witnesses have turned hostile and have not deposed anything against the accused persons.
49 Thus, the prosecution has failed to establish the identity of accused Mahesh Verma, Mohd. Yusuf, Jitender @ Jeetu, and Naeem Akhtar beyond reasonable doubt being dacoits who committed dacoity of articles and money in the house of complainant (PW1).
Recovery of robbed articles 50 Accused Mahesh Verma, Mohd. Yusuf and Jitender @ Jeetu have also been charged under Section 411 IPC. Case of the prosecution is that jewellery, cash and other articles which were looted in the dacoity at the house of complainant (PW1) was recovered from these accused persons apart from accused Nafeesul Haq (already P.O.). It is also case of the prosecution that accused persons made disclosure statements and in pursuance thereof robbed articles i.e. Binocular, SC No.83/2006 State Vs. Mahesh Verma etc. Page 31 of 39 silver glass, silver idol of Ganeha and video camera were recovered. 51 PW1 Smt. Kiran Mittal as well as PW6 Pallavi Mittal and PW7 Himanshu Mittal in her testimony has deposed that at the time of committing dacoity, dacoits had taken away cash, silver glasses, silver idol, wrist watch, binocular, video camera and other articles. However, all these witnesses turned hostile to the case of prosecution and have not identified any of the accused in the Court. They have failed to identify accused persons as the persons who committed daocity in their house. These witnesses in their entire testimony have not deposed against accused persons that they committed the dacoity or that they had taken away said articles. Therefore, all these witnesses have not stated anything that accused persons committed dacoity at their house or took away cash, silver articles, binocular, video camera, wrist watch etc. They have also not stated anything that said articles were recovered from the possession of accused persons.
52 It is matter of record that recovered articles were put to the complainant (PW1). Though, she identified the articles but she has not stated that the same were taken away by the accused persons or that same were recovered from the possession of above said accused SC No.83/2006 State Vs. Mahesh Verma etc. Page 32 of 39 persons. Even the alleged recovered articles have not been put to the Pallavi Mittal (PW6) and Himanshu Mittal (PW7) to get them identified as the articles which were robbed from their house in the incident of alleged dacoity. Therefore, in the absence of identification of such articles and nonsupporting the case of prosecution by eye witnesses (PW1, PW6 & PW7), prosecution has failed to prove its case beyond reasonable doubt that any robbed articles were recovered from accused Mahesh Verma, Mohd. Yusuf and Jitender @ Jeetu. Use of weapon and Nonrecovery of weapon 53 It is also alleged against accused Jitender @ Jeetu, Mohd. Yusuf and Naeem Akhtar that they used deadly weapons i.e. Knives and country made pistol at the time of commission of dacoity of the articles as well as cash from the house of the complainant (PW1).
54 The complainant (PW1) as well as her daughter Pallavi Mittal (PW6), her son Himanshu Mittal (PW7) and Puneet (PW18) have not identified accused persons as dacoits in the Court. They have not stated anything against accused Jitender @ Jeetu, Mohd. Yusuf and Naeem Akhtar that they were the persons who, on the day of incident, robbed them cash and other articles from the house SC No.83/2006 State Vs. Mahesh Verma etc. Page 33 of 39 of complainant (PW1). All these witnesses have not identified accused persons being the dacoits. They have also not stated that any weapon was used by these accused persons at the time of committing alleged dacoity.
55 It is also a fact that Investigating Officer has not effected recovery of weapons of offence i.e. knives which were allegedly used by accused Jitender @ Jeetu & Mohd. Yusuf and country made pistol by accused Naeem Akhtar at the time of alleged dacoity. In the absence of any deposition by alleged eye witnesses (PW1, PW6, PW7 & PW18) with regard to involvement of accused persons in the commission of dacoity and in the absence of recovery of weapons of offence, it can not be said that these accused persons used deadly weapon at the time of alleged offence, when all the eye witnesses i.e. complainant (PW1) as well as Pallavi Mittal (PW6), Himanshu Mittal (PW7) and Puneet (PW18) have not identified accused Jitender @ Jeetu, Mohd. Yusuf and Naeem Akhtar to be the dacoits. Nonrecovery of weapons of offence also proved fatal to the case of prosecution.
56 In similar circumstances, in the judgment titled Siri Om Vs. State of Haryana (1998 (2) RCR (Criminal) 333), it was held SC No.83/2006 State Vs. Mahesh Verma etc. Page 34 of 39 that Section 397 IPC is divided into two parts. It was observed that if a robbery or dacoity is committed with a deadly weapon and that deadly weapon is not recovered or produced, the ingredients of Section 397 would not be attracted but if it is established on the record that the injured person had suffered grievous hurts or an attempt was made to cause his death, the production of weapon is not required. 57 In the present case, the weapons of offence i.e. knives and country made pistol allegedly used by accused Jitender @ Jeetu, Mohd. Yusuf and Naeem Akhtar in the commission of alleged dacoity have not been recovered by the police. It is also not the case of prosecution that any hurt was caused by any of the accused persons with such weapons on the person of complainant (PW1) or her children (PW6 & PW7) and Puneet (PW18). The complainant (PW1) as well as other eye witnesses (PW6, PW7 & PW18)) even had not identified accused Jitender @ Jeetu, Mohd. Yusuf and Naeem Akhtar as dacoits who used any deadly weapon at the time of alleged robbery. In the absence of identification of accused persons and in view of non recovery of weapons of offence, I am of the considered opinion that the prosecution has failed to make out any case against accused Jitender @ Jeetu, Mohd. Yusuf and Naeem Akhtar beyond reasonable SC No.83/2006 State Vs. Mahesh Verma etc. Page 35 of 39 doubt that any weapon of offence was used by them.
Conclusion 58 The identity of accused Mahesh Verma, Mohd. Yusuf, Jitender @ Jeetu, Rajeev Chopra and Naeem Akhtar being dacoits has not been established in the Court. The complainant (PW1) as well as other eye witnesses to the incident Pallavi Mittal (PW6), Himanshu Mittal (PW7) and Puneet (PW18) have not stated that any of the accused committed dacoity in the house of the complainant on the day of incident. They have not identified any of the accused as dacoits. Therefore, the identity of accused Mahesh Verma, Mohd. Yusuf, Jitender @ Jeetu, Rajeev Chopra and Naeem Akhtar being dacoits has not been established.
59 The prosecution has failed to establish that there was any criminal conspiracy amongst accused persons. Prosecution has examined PW2 Satish Mittal and PW24 Praveen Kumar to establish the criminal conspiracy amongst these accused persons, but there is nothing in the testimony of these witnesses from which it can be inferred that there was prior meetings of mind amongst these accused persons in committing dacoity at the house of the complainant (PW1). There is no other evidence on record to establish that there was pre SC No.83/2006 State Vs. Mahesh Verma etc. Page 36 of 39 meeting of mind amongst accused persons to commit the dacoity in the house of the complainant (PW1).
60 The recovery of alleged robbed articles has also not been established in the Court. It is the case of prosecution that accused Mahesh Verma, Mohd. Yusuf and Jitender @ Jeetu got recovered robbed articles. But it has come in evidence that such alleged robbed articles were not identified by the complainant (PW1) in the Court as the same got recovered by these accused persons. Even these accused persons being dacoits has also not been established on record. Therefore, the recovery of alleged robbed articles at the instance of accused Mahesh Verma, Mohd. Yusuf and Jitender @ Jeetu is in doubt and the prosecution has failed to prove its recovery beyond reasonable doubt.
61 The prosecution has also failed to establish on record beyond reasonable doubt that any of the accused was present at the spot at the time of incident. The case of the prosecution rests upon the testimony of complainant (PW1), her daughter Pallavi Mittal (PW6), Himanshu Mittal (PW7) and Puneet (PW18) who failed to identify accused persons as the culprits who committed robbery in the house of complainant on the day of incident. No other material has been SC No.83/2006 State Vs. Mahesh Verma etc. Page 37 of 39 brought on record by the prosecution to connect accused persons with the commission of dacoity of cash, silver articles, video camera, binocular, silver idol and other articles from the house of complainant (PW1) on the day of incident. The prosecution has also failed to prove beyond reasonable doubt use of any deadly weapon by accused Mohd. Yusuf, Jitender @ Jeetu and Naeem Akhtar at the time of alleged dacoity. No incriminating evidence has been produced by the prosecution to connect the accused persons with the dacoity and use of deadly weapon.
62 In view of the above discussion, accused Mahesh Verma, Mohd. Yusuf, Jitender @ Jeetu, Rajeev Chopra and Naeem Akhtar are hereby acquitted from the charges framed against them under Section 120B IPC. Accused Mahesh Verma, Mohd. Yusuf, Jitender @ Jeetu, and Naeem Akhtar are also acquitted from the charges framed against them under Section 395 IPC. Accused Mohd. Yusuf, Jitender @ Jeetu and Naeem Akhtar are also acquitted from the charges framed against them under Section 397 IPC. Accused Mahesh Verma, Mohd. Yusuf and Jitender @ Jeetu are also acquitted from the charges framed against them under Section 411 IPC. SC No.83/2006 State Vs. Mahesh Verma etc. Page 38 of 39 63 Accused persons are directed to comply with the provisions of Section 437A of Cr.P.C.
Announced in the open Court ( P.S. TEJI )
Dated: 12.09.2012 District Judge and
Addl. Sessions Judge, I/C (East)
Karkardooma Courts : Delhi
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