Delhi District Court
State vs . 1. Billu @ Rohit S/O. Sh. Rajpal @ Mathu on 11 September, 2012
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 215/11
Computer ID No. 02406R015232011
State Vs. 1. Billu @ Rohit S/o. Sh. Rajpal @ Mathu
permanent R/o Village Khaikra,
PS Khaikra, District Bagpat (UP)
{presently R/o Gali no. 2,
Buddh Bazar Road, Prashant Vihar
Main Ranap Pulia, Loni, Ghaziabad (U.P.)
(In judicial custody)
2. Bijender S/o. Sh. Lakhi Ram
R/o R245, Nand Gram,
P.S. Sihani Gate, District Ghaziabad (U.P.)
(In judicial custody)
FIR No : 26/11
P.S. : Okhla Industrial Area
U/s. : 392/397/34 IPC
DATE OF INSTITUTION : 02.05.2011
JUDGMENT RESERVED ON : 27.08.2012
DATE OF DECISION : 11.09.2012
JUDGMENT:
1. Prosecution case in brief is that after receiving DD entry no. 33A on State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 1 Of 35 28.01.2011, SI. Shabir Ahmad along with Ct. Kamlesh reached the spot i.e Anandmai Marg, Near Petrol Pump Crown Plaza where he met complainant Vikram Singh and made inquiries from him. SI Shabir Ahmed alongwith Vikram Singh and other staff searched both the vehicles nearby area but could not find. Thereafter, came back at the spot along with Vikram Singh and recorded his statement.
2. Complainant Vikram Singh alleged in his statement that he is working in Rubric Apparel, Noida and today at around 8.30 pm he went to Sagar Restaurant for taking dinner along with Neeraj and Pappu and when he was coming back to his house in his car at Okhla, red light, one Maruti 800 car parked near his car carrying 34 persons and the person who was sitting adjacent to the driver seat stared at him, when he moved at green light, then that car started chasing his car, however on hearing horn he gave them the way, however, they tried to hit his car because of this he took his car to left, then they managed to stop his car by coming in front of his car. Thereafter, one of the boy who was sitting on the the driver seat came out and started abusing him and then, another boy also came with iron rod and one other boy was also having pistol with him stood in front of his car. He further alleged that 3 persons came out of his car then he tried to call 100 number but due to fear he cannot talk on phone. One of the boy who was somewhat fat and having less hairs on his head and another boy was thin and having light beard. He further alleged that the fat person sit on the back seat of his car and he can identify two out of three boys as they have taken his car. He further alleged that number of the Maruti Car which they State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 2 Of 35 were having was DL 3 CT 2116, white color Maruti 800 and his car bearing no. HR 51 AC 0448. Pursuant to recording his statement, FIR was registered.
3. During investigation, at the instance of complainant site plan was prepared and it was revealed from the concerned authority that the said Maruti Car was in the name of one Mr. S K Sharma who in turn informed that he sold that car to one Imran and Imran during inquiry revealed the he purchased that car for Hakmin son of Munna who in turn stated that he sold that car to Shahjad and Shahjad on inquiry told that he sold that car to accused Billu @ Rohit as he had given him Rs. 20,000/ in cash and Rs. 40,000/ promised to be given in future.
4. During further investigation, on 08.02.2011, accused Billu @ Rohit was apprehended alongwith Maruti car on secret information and disclosed that the Wagon R Car of the complainant was met with accident by coaccused Bijender and presently lying at P.S. Indirapuram and IO/SI. Shabir found the said car lying in P.S. Indirapuram. Accused Billu @ Rohit refused to participate in TIP and it was further found on inquiry that coaccused Bijender was in Dasna Jail. Thereafter, accused Bijender produced at Delhi Court and arrested in present case. He also refused to participate in inquiry. Both the accused disclosed name of other coaccused Langra and Gani but they could not be found despite efforts. After completion of investigation, charge sheet u/s 392/34 IPC was filed. On committal, charges u/s 392/397/34 IPC were framed against the accused Rohit @ Billu & Bijender.
State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 3 Of 35
5. Prosecution for substantiating charge examined 15 prosecution witnesses. Summary details of their depositions are as follows. Deposition of complainant Vikram Singh (PW2)
6. PW2 Sh. Vikram Singh deposed that on 28.01.2011 when he was coming to his home via DND Flyover, he stopped his car at Okhla red light and found and 34 persons sitting in Maruti 800 car staring at him and thereafter, they overtook his car and blocked his way and one person came out of said car and started abusing him and told another person to bring rod from the car and thereafter, that person tried to beat him with the rod but he caught hold of his hand, then called police at 100 number and tried to move place in his car but third person came with the pistol. Then, he came out of his car and one fat boy and slim boy sat in his car and fled away from the spot and both those person are present in the Court and other person with pistol fled in the Maruti Car. This witness further stated that on 12.02.2011, when he went to PS he had seen the fat accused i.e Rohit who first got down from car, thereafter, on 13.12.2011 went to PS and found another person in PS and identified him as Bijender and later on his car was recovered by police of Indirapuram.
7. In cross examination, he deposed that Maruti Car was already standing near the red light when he stopped his car and assailant stopped his car about 100m away from the red light and he called PCR before accused persons could take away his car and told the PCR that his life is in danger and nothing else and it took around 5 min in the entire incident. He further deposed that after incident he went to PS from spot and his statement was State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 4 Of 35 recorded at PS and no writing was conducted at the spot. He further deposed that the men who was having gun in his hand remained at the spot and other two person ran in his car. He further deposed that later on both person including person having gun in hand ran in Maruti Car. He further deposed that he went to PS next day and then on 12.02.2011. He further deposed that next day police did not made any sketch of boys nor they show any photograph, nor any paper work was done nor he put his signature on any paper. He further deposed that he went to PS on 12.02.2011 on his own and police not informed him about apprehension of any of the assailant or about the recovery of any vehicle and went to PS on 12.02.2011 at around 4/5 PM and stayed there for about 10 min. He further deposed that he also went to PS at about 8.00 p.m. on 13.12.2011 and his statement was recorded by police on 13.02.2011. Police told him outside the court room to give the statement in the Court. He further denied that he identified accused Bijender at the instance of police and further denied suggestion that he could not see faces of assailants due to darkness and hurry.
Depositions of Shri S.K. Sharma (PW1), Mohd. Imran (PW5), Hakmin (PW6) and Shahjad (PW7) owner/possessors of Maruti car bearing no. DL 3 CT 2116
8. PW1 Sh. S K Sharma deposed that he sold the Maruti Car DL 3 CT 2116 to Imran Khan, in cross examination stated that he had not intimated this fact to Transport Authority.
9. PW5 Mohd. Imran deposed that he bought one maruti car No. DL 3 CT State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 5 Of 35 2116 from S.K. Sharma for one Hakmin as he do not possess any I.D. Proof of Delhi and used his name in sale letter and other documents. He further deposed that Hakmin sold the said car to Shahjad, who is also from his village. In cross examination he deposed that Hakmin is a scrap dealer and he is also scrap dealer and he has not given his identity card to any body else. He further deposed that he had not given any information to transport authority that he purchased the vehicle. He further deposed that Hakmin had purchased the said vehicle in the year 2008 but date and month he could not recollect, and do not know when Hakmin sold the said vehicle to Shahjad.
10. PW6 Hakmin deposed that he purchased the maruti car No. DL 3 CT 2116 from S.K. Sharma and payment was made by Imran and he had not transferred the said car in his name because he do not have any ID proof and the sale letter of the same was made in the name of Imran and he sold the said car to one Shahjad.
11. PW7 Shahzad deposed that he purchased maruti 800 from Hakmin for Rs. 52,000/ and sold the same to accused Rohit @ Billu on 23.01.2011 for sum of Rs. 60,000/ and received Rs. 20,000/ in cash and Rs. 40,000/ remained balance towards him and no documents were prepared regarding the present vehicle. In cross examination deposed that he does not have any papers of the car and neither know who is the first owner of the maruti 800 car and correctly point towards accused Rohit @ Billu in the court. Further stated that he was brought to court on 28.09.2011 by police but cannot say if police tutored him to give the statement. He further deposed State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 6 Of 35 that he knew accused Rohit @ Billu as he used to come to his meat shop. However, he further deposed that he sold the said car for Rs. 60,000/ but date he does not remember and entire transaction was oral and today he has seen his car in the court, however no number plate was found on the car on both the side. He cannot say whether this is the same car which was sold to accused Rohit @ Billu.
Depositions of police officials and Ld. Magistrate
12. PW 3 SI Mukesh Kumar deposed that on 7.2.2011 he alongwith SHO, SI Sabbir alongwith other raiding party members went to Loni, Ghaziabad, however, accused Billu not found there. Thereafter, they stayed there and on 8.2.2011 one secret informer informed that Billu living at Prashant Vihar, Loni and about to reach his house in maruti car No. DL 3 CT 2116. At about 4 pm he and HC Lala Ram stopped his car and arrested the accused. Further accused made his disclosure statement and arrested by IO. He further deposed that accused disclosed that said WagonR had parked outside P.S. Indira Puram, Ghaziabad. In cross examination he was confronted with his statement that he went to the Loni with raiding party on 7.2.11 and further regarding the secret information on 08.02.2011 and also over the fact that the raiding party was divided into two. He further deposed that they left the PS on 7.2.2011 at around 22.30 pm and further stated that they had not informed the local police of village Banthala and they reached Prashant Vihar, Loni at around 10 or 11 am on 8.2.2011 and at both the place they have not informed to the local police and further not made any inquiry from other residents in Prashant Vihar. He further states State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 7 Of 35 that there were no photograph or sketch with IO, when arrested accused. Further, accused was not produced before the local police.
13. PW4 HC Lala Ram also deposed on the same line in examination in chief. In cross examination he deposed that he left P.S. for Loni at 10 am on 7.2.2011 and they straight away went to Prashant Vihar and he do not know from how many persons they inquired at Loni. No police official from concerned P.S. was informed about their arrival at Prashant Vihar and they stayed at small hotel in Loni on 7.2.2011 and secret informer met IO at 4 pm on 8.2.2011 and there was no photograph or sketch with IO at the time of arrest of accused. No information of his arrest was made with local police or Area Magistrate, however, site plan of the spot was prepared, though same was not on record and they went to the place of arrest of accused in WagonR car, which was a taxi, called by IO and on 8.2.2011 after arresting the accused, they came back to P.S. at around 8 pm.
14. PW8 SI Rishi Om deposed that on 28.01.2011 he recorded the FIR on the basis of rukka brought by Ct. Kamlesh.
15. PW9 SI Shabbir Ahmed deposed that on 28.01.2011 on receiving DD no. 33A he alongwith Ct. Kamlesh went to spot and recorded statement of Vikram Singh and after registration of FIR prepared site plan at the instance of complainant Vikram Singh and from authority found the ownership of vehicle DL 3 CT 2116 and thereafter contacted S K Sharma, who told him that he sold the car to one Imran and then Imran told that he purchased the said car for Hakmin. Then Hakmin told that he sold the said car to Shahzad his cousin brother. Shahzad further told him that he sold State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 8 Of 35 the said car to accused Rohit for Rs. 60,000/ and received Rs. 20,000/ in cash and Rs. 40,000/ still remains balance. On 07.02.2011 he went alongwith raiding party for search of accused at Ram Vihar, Loni and thereafter, on 08.02.2011 he received secret information and arrested accused at Prashant Vihar at 4.00 p.m., thereafter, his disclosure statement was recorded and his personal search was also conducted. In disclosure accused Rohit @ Billu disclosed that the wagon R car was with accused Bijender which met an accident and lying at PS Indirapuram and it was revealed that accused Bijender was in Dasna jail. Accused Rohit @ Billu was produced in court on next day but he refused his TIP. Thereafter, he took PC remand of accused Rohit for two days. He further deposed that accused Bijender was produced before court on 11.02.2011, thereafter he was arrested and he also refused TIP, but other accused Langra and Ganni could not be traced.
16. In cross examination deposed that complainant given his statement at spot in his own handwriting and recorded supplementary statement of complainant 28.01.2011 and further recorded one more statement of complainant regarding identification of accused Rohit and Bijender on 13.02.2011 and accused Billu was sent to JC on 12.02.2011 after 2.00 p.m. He further deposed that FIR was registered at around 12.40 and not joined any public witness at the time of preparation of site plan and prepared the same at the instance of complainant Vikram Singh. He further deposed that the raiding party reached Prashant Vihar at 11.00 a.m. And they took oral permission from ACP to go to Prashant Vihar, Loni and they went to State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 9 Of 35 Prashant Vihar on information of Shahzad and went to Prashant Vihar, Loni in Santro and Alto car, which were not taxis, however not recorded the statement of drivers of those cars. He further deposed that alongwith team members secret informer also went which met them at around 2.00 p.m. and SHO also accompanied them to Prashant Vihar, Loni. He further deposed that on 07.02.2011 they remained at Prashant Vihar at dhaba and stayed there for the entire night.
17. He further deposed that complainant met him first time at the spot and had not recorded statement of any other public persons at the spot and he had not prepared sketch of accused persons. After recording the statement of complainant, he roamed in the area in search of accused persons but cannot tell the particulars of roaming in the area and remained at the spot for 1 ½ hours. He further deposed that he arrested accused from gali and not from his house and not called any neighbour at that time, further not informed local police. He further deposed that at the time of personal search of accused, no mobile phone was recovered and he went to arrest the accused on private vehicle. He further deposed that they hired taxis but he does not remember from where he hired the same or the number of the taxi and even had not recorded the statement of the driver. He further deposed that complainant had not accompanied them when they arrested accused and after arrest accused was brought to PS Indirapuram at around 7.00 p.m. He further denied suggestion that accused was arrested from his house and no maruti car DL 3 CT 2116 was recovered at the instance of accused. He further deposed that he had not called complainant to PS and complainant State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 10 Of 35 came to PS on 12.02.2011 and 13.02.2011 and identified accused Rohit @ Billu and complainant came around 3.00/4.00 p.m. at PS but did not meet him on 12.02.11 and recorded his statement on 13.02.2011. He further deposed that he had not made any identification memo for identifying accused Rohit @ Billu.
18. He further deposed that he had not recorded the statement of any police person of PS Indiarpum nor made them witness to pointing out memo of Wagon R car and obtained the copy of FIR from PS Indirapuram but no seizure memo was made to this effect. He further deposed that he had not mentioned in his application that accused Bijender be produced in muffled face neither it is written in arrest memo that accused was produced in muffled face. He further deposed that he does not mentioned in his case diary DD no. of arrival when accused Rohit was brought to PS and have not recorded statement of any santri whether accused was kept in lock up in muffled face or not. He further deposed that he cannot tell the make of mobile carried by him or other police officials and denied suggestion that those mobile phones were having camera. He further deposed that he know at the time of arrest of accused Bijender that the car was lying at PS Indirapuram.
19. PW10 Ct. Lal Chand deposed that on 11.02.2011 he accompanied IO Shabbir Ahmed and arrested accused from court. PW11 SI RK Vashishtha from PS Vijay Nagar, Ghaziabad deposed that on 05.02.2011 Wagon R car hit two scooters and driver was apprehended by public persons and IO of this case came to PS Indirapuram and accused Bijender State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 11 Of 35 was already sent to JC on 06.2.2011. In cross examination deposed that police has not recorded his statement u/s. 161 Cr.P.C. Further no papers were recovered from Wagon R car and he had not made any efforts to trace owner of the wagon R car. On 08.02.2011 police did not meet him at PS and took copy of FIR from PS and could not produced any documents that police came to PS Ghaziabad.
20. PW12 ASI Mahavir Prasad deposed that on 28.01.2011 on receiving PCR call he reached the spot at around 10.28 p.m. but could not find the complainant, who later on contacted stated that he reached PS on foot. Thereafter they met complainant Vikram Singh at PS and complainant narrated the incident to local police.
21. PW13 ASI Rajender Singh, malkhana mohrrar, deposed that on 08.02.2011, SI Shabir Ahmed deposited one maruti car DL 3 CT 2116 and thereafter on 16.02.2011 also deposited one Maruti Wagon R car bearing no. HR 51 AC 0448. PW14 Shri Nipun Awasthi, Ld. Metropolitan Magistrate, conducted TIP proceedings of accused Rohit @ Billu on 10.02.2011 and of accused Bijender on 11.02.2011. But both the4 accused persons had refused to participate in the TIP.
22. PW15 W/Ct. Promila being posted at PCR, PHQ received telephone call from mobile no. 9899088355 regarding information of snatching of Wagon R car after showing pistol.
23. Both accused in their statement u/s. 313 Cr.P.C. denied all the incriminating circumstances put to them, but opted to lead defence evidence, however, accused Rohit @ Billu produced two defence witnesses State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 12 Of 35 DW1 Meena and DW2 Jyoti. But accused Bijender had not produced any defence witness.
Defence Evidence
24. DW1 Smt. Meena Devi mother in law of accused Rohit @ Billu stated that on 27.01.2011 she alongwith entire family alongwith her damaad accused Rohit @ Billu went to their village Mudkawali, District Badayun and came back on 30.01.2011. In cross examination she stated that they went there for pooja, in which her damaad i.e, accused Rohit @ Billu also participated. DW2 Jyoti wife of accused Rohit @ Billu also deposed on the same lines, in cross examination stated that she had gone first time for pooja/hair cut of her brother's daughter at village. Material Exhibits
25. Ex. PW2/A is statement of complainant Vikram Singh recorded by police pursuant to which rukka Ex. PW9/B was prepared and FIR Ex. PW8/A was registered. Ex. PW9/A is DD no. 33A dated 28.01.2011 regarding information of the incident received from PCR. Ex. PW9/C is the site plan of the place of occurrence. Mark A is Form 29 showing that Maruti car DL 3 CT 2116 sold to Mohd. Imran. Mark B is certificate which shows that Mohd. Imran purchased the said vehicle from S K Sharma. Mark C is driving license of Mohd. Imran. Mark D is PAN card of Mohd. Imran. Ex. PW3/D is seizure memo of car DL 3 CT 2116 shown to be recovered from accused Billu @ Rohit on 08.02.2011. Ex. PW9/O is pointation memo of the place of occurrence by accused Bijender. Ex. State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 13 Of 35 PW4/B is pointation memo of the place of occurrence by accused Rohit @ Billu. Ex. PW4/A is pointation memo of Wagon R car at the instance of accused Billu @ Rohit lying outside PS Indirapuram. Ex. PW9/M is seizure memo car HR 51 AC 0448. Ex. PW3/A is disclosure statement of accused Rohit @ Billu. Ex. PW9/A is disclosure statement of accused Bijender. Ex. PW9/L is supplementary disclosure statement of accused Rohit @ Billu. Ex. PW15/A is PCR form regarding receiving of information at around 22.22.10 hours on 28.01.2011. Ex. PW14/B is refusal statement of accused Rohit @ Billu to participate in TIP proceedings as police has taken his photograph in their mobile. Ex. PW14/A is refusal statement of accused Bijender to participate in TIP proceedings because police has taken his photographs in their mobile and also shown him to the witnesses. Ex. PW13A is entry of deposit of maruti car DL 3 CT 2116 in malkhana register. Ex. PW13/B is the deposit entry of Wagon R car in malkhana register on 16.02.2011.
26. Ld. counsel for accused persons submitted that the accused persons are falsely implicated in the present case. Ld. Counsels for accused persons further submitted that the entire proceedings were conducted by police at police station and proceedings were not conducted at the place of occurrence. Ld. Counsels for accused persons further submitted that complainant was not in a position to see the accused person at spot because there no mentioning of any light in the site plan. Ld. Counsel submitted that PW2 in his statement before the police stated that he unable State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 14 Of 35 to call PCR, however, in his testimony before the court he improved and stated that he able to call PCR. Ld defence counsel also submitted that PW2 falsely deposed that he had seen the accused persons on 12.02.2011 and 13.02.20111, whereas at that time accused persons were already in judicial custody.
27. Ld. counsel for the accused further submitted that the circumstance of arrest and recovery of maruti car at the instance of accused Rohit @ Billu is all false and fictitious. Ld. Counsels for accused person further submitted that the accused was arrested from Loni (UP). However, neither before or after arrest local police was informed nor produced before local magistrate. Ld. Counsels for accused persons further submitted that all the three witnesses, i.e, PW3 SI Mukesh, PW4 HC Lala Ram and PW9 IO/SI Shbair Ahmed were discrepant regarding how they reached Loni for arresting the accused and also on the factum of their stay at that night. Ld. Counsels for accused persons further submitted that after arrest of the accused, prosecution alleged that accused Rohit was taken to PS Indirapuram for pointing out of alleged Wagon R car, however, had not made any entry in the police station, which itself created doubt over the manner of arrest of accused Rohit @ Billu. Ld. Counsels for accused Rohit @ Billu further submitted that defence witnesses categorically deposed that on the day of incident accused Rohit @ Billu was at village near Badayun alongwith his wife and other family members. Ld. Counsels for accused persons further submitted that identification in the court is of no value if the identification during the investigation is not reliable. Ld. State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 15 Of 35 Counsels for accused persons further submitted that PW2 Vikram Singh was completely a tutored witness and his testimony cannot be relied upon. Ld. Counsels for accused persons further submitted that prosecution unable to prove its case against the accused persons.
28. Ld. Addl. P.P. On the other hand submitted that PW2 categorically identified the accused persons in his testimony before the court. Ld. Addl.P.P. further submits that testimony of PW2 remains unimpeached over the description of incident and further it categorically has come in the testimony of PW7 Shahjad that he sold the said maruti car to accused Rohit @ Billu, who was arrested alongwith said car. Ld. Addl.P.P. further submits that accused Billu @ Rohit could not dent the prosecution case over the fact that he has not purchased the said car from PW7 Shahjad. Ld. Addl.P.P. further submits that accused Bijender was arrested when he involved himself in accident while driving the robbed maruti Wagon R car. Ld. Addl.P.P. further submits that circumstance identification of accused alongwith circumstance of possession of the vehicles with accused persons unerringly points towards the guilt of the accused persons.
29. Arguments heard. Record perused.
30. Prosecution case in brief that on 28.01.2011 PW2 Vikram Singh after having dinner with his friends at Sagar restaurant in Noida moved to his house, when reached Okhla red light after crossing DND flyover, accused persons in their Maruti car found staring at him at the red light. Thereafter, at some distance blocked his way and made him to stop his car. Then accused Bijender and Rohit by threatening removed him out of his car, State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 16 Of 35 robbed him from his car and went away from spot after driving his Wagon R car, then other two accused persons not arrested left in the said maruti car, thereafter he called police and during investigation police after tracing the ownership of the maruti car traced accused Rohit @ Billu and apprehended him on 08.02.2011 and further found that said Wagon R Car also met an accident in the Indirapuram area and accused Bijender was found to be involved in the same. Thereafter, both the accused persons were arrested. However, both the accused persons refused TIP and two other accused persons are not found traceable.
Description of incident
31. PW2 Vikram Singh in his statement to police Ex. PW2/A, stated that at around 8.30 p.m. on 28.01.2011 he went for dinner alongwith his friend at Sagar Restaurant in Noida. Thereafter, when he was coming back to his house through DND flyover in his Wagon R car, then at Okhla red light accused persons stared at him and, after crossing red light at some distance tried to hit his car and made him to stop his car, thereafter, they also stopped their car in front of his car and one of the person who was sitting on the driver seat came outside and abused him and asked to come out of the car. Thereafter, one other boy came with iron rod and one more boy was having pistol in his hand, came in front of his car and at that time he tried to call at 100 number but due to fear could not call and further stated that fat type person having less hairs and one thin person sat inside his car and taken away his car and out of those three persons, he can identify only two persons who robbed his car.
State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 17 Of 35
32. In this statement, this witness has categorically stated that he can identify two persons who took away his Wagon R car. However, stated that the he cannot identify the person who left in the maruti car.
33. This witness in his testimony before the court also testified that accused persons after chasing his car at Okhla red light gave several horns to him and after over taking the car, they blocked his way, thereafter, one person came outside and started abusing him. Another person also came out with iron rod and third person came in front of his car with pistol and one fat boy and one slim boy sat inside his Wagon R car and fled away with his car, PW2 identified accused Rohit @ Billu as fat person and accused Bijender as thin person who fled away from the spot with his car and the other accused with pistol ran away in the said maruti car. The testimony of this witness remain unimpeached in cross examination over the factum of snatching of car by the accused persons in the manner stated by him.
34. This witness in his statement before the police (Ex. PW2/A) stated that he unable to call PCR due to fear. However, in his testimony stated that he talked to PCR in presence of accused persons. But, this discrepancy do not appear to be of any importance in present set of facts. Circumstance of Tracing of Maruti Car Bearing No. DL 3 CT 2116 used in offence, found to be purchased by accused Rohit @ Billu
35. As per testimony of PW9 IO/SI Shabir Ahmed, he checked the ownership of maruti car of accused bearing no. DL 3 CT 2116 from Transport Authority and found that it was registered with the name of S K Sharma (PW1) and on inquiry from PW1 it was found that this vehicle was sold to State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 18 Of 35 one Mohd. Imran (PW5). PW5 Mohd. Imran deposed that he purchased the same for one Hakmin (PW6) from S.K. Sharma as Hakmin do not have any ID proof. PW6 Hakmin stated that he sold the same to one Shahjad (PW7). PW7 Shahjad deposed that he sold it to accused Rohit @ Billu on 23.01.2011 for the sum of Rs. 60,000/ and accused had given Rs. 20,000/ in cash and Rs. 40,000/ remained as balance towards him, however, no documents were prepared in this regard.
36. Ld. counsel for accused persons submitted that the said car though allegedly transferred to accused Rohit @ Billu through various persons, but there is no valid transfer documents executed between the persons. Ld. Counsel further submits that Shahjad could not produce any documents that he sold this vehicle to accused Rohit @ Billu, therefore, testimonies of these witnesses cannot be relied upon over the fact that accused Rohit @ Billu had purchased the said vehicle. I am afraid that this contention of Ld. Counsel for the accused holds no ground because in present case the court is not deciding the legal validity of transfer. The prosecution able to connect the accused Rohit @ Billu with the said maruti car, which as per PW2 Vikram Singh was used in the said incident. There comes nothing in the testimony of S K Sharma (PW1), Mohd. Imran (PW5), Hakmin (PW6) and Shahjad (PW7) that the said maruti car was not transferred in the manner suggested by the prosecution. PW7 Shahjad categorically stated in his examination in chief that he sold the said car to accused Rohit @ Billu for total amount of Rs. 60,000/ and accused Rohit @ Billu had given him Rs. 20,000/ in cash and Rs. 40,000/ remained balance towards State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 19 Of 35 him. This witness has categorically stated that he knew accused Rohit @ Billu as he used to come to his meat shop. From his testimony it cannot be inferred that he do not know accused Rohit @ Billu and further duly identified him in the court.
37. Ld. Counsel for the accused submitted that this witness was tutored by police and in cross examination also could not state the registration no. of the car and even have no papers of the car when purchased from Hakmin and also could not tell the date when he sold that vehicle to accused Rohit @ Billu in cross examination. Ld. Counsel further submits that the said maruti car which was produced in court do not have the number plate on both sides and this witness unable to identify the car in the court at the time of cross examination.
38. The examination in chief of PW7 Mohd. Shahjad was first recorded on 28.09.2011. However, the cross examination of this witness was deferred as no defence counsel was available for 29.09.2011. Thereafter, this witness did not appear on i.e, 29.09.2011 despite being bound down, however, this witness appeared after the conclusion of hearing on 29.09.2011, therefore, his bailable warrants cancelled and directed to appear on the next date of hearing i.e, 14.10.2011. However, this witness not appeared on 14.10.2011, 24.11.2011, 04.02.2012, 23.02.2012 despite coercive means and lastly appeared and cross examined on 23.05.2012.
39. This witness in cross examination though stated that he could not see the number plate on the car on the day of cross examination as the same was broken. The said number plates were present on the car on the day of State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 20 Of 35 examination in chief. Further this witness in reexamination categorically stated that he sold the maruti car bearing DL 3 CT 2116 to accused Rohit @ Billu. Mere non presence of number plate on the maruti car produced in the court complex on the date of cross examination do not hit at the veracity of seizing of the maruti car no. DL 3 CT 2116. This witness stated in cross examination that he cannot say whether he was tutored or not, but from this it could not be inferred that he was pressurized by police to depose against the accused. On the other hand reports of his non appearances for cross examination suggests that he was under fear of accused Rohit @ Billu. The entire chain of transfer of maruti car from S K Sharma (PW1) to Mohd. Shahjad then to accused Rohit @ Billu appears natural and credible and there comes nothing in the testimony of PW7 Shahjad that he do not know accused Rohit @ Billu. Thus the circumstance that PW7 Shahjad sold the car to accused Rohit @ Billu appears fully credible. Further use of said maruti car in incident is firmly established by statement of PW2 before police as well as in the court. The prosecution able to prove that the said maruti car was sold to accused Rohit @ Billu by PW7 Shahjad and accused unable to rebut the same by way of cross examination or through defence evidence nor could place any plausible explanation that he had not purchased the said car from PW7 Shahjad or that car do not belong to him.
Circumstance of apprehension of accused Rohit @ Billu alongwith said Maruti car.
40. Prosecution has examined PW9 IO/SI Shabir Ahmed, PW3 SI Mukesh State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 21 Of 35 Kumar, PW4 HC Lala Ram for the circumstance of the arrest of accused Rohit @ Billu alongwith the maruti car no. DL 3 CT 2116 from Prashant Vihar, gali no. 2, Loni, near his house on 08.02.2011.
41. PW9 IO/SI Shabir Ahmed stated that on 07.02.2011, he alongwith HC Lala Ram, SI Mukesh, Ct. Sushil, Ct, Harinder, Lady Ct. Sangeeta went in search of accused Rohit @ Billu at Loni, Ghaziabad. Thereafter, on receiving secret information on 08.02.2011 prepared two teams and reached gali no. 2, Prashant Vihar at around 4.00 p.m. and found accused Rohit @ Billu coming by driving said maruti and on pointation of secret informer, car was stopped and accused was apprehended. IO has not recorded the statement of other witness of raiding party i.e, Ct. Sushil, Ct. Harinder and lady Ct. Sangeeta in this regard.
42. PW9 IO/SI Shabir Ahmed in cross examination stated that they left the police station on 07.02.2011 in two private vehicles which were not taxies and are Santro and Alto car, and entire team stayed at some dhaba at Prashant Vihar, Loni on the night of 07.02.2011. PW3 SI Mukesh Kumar on the other hand stated that they went on raid in Qualis and it was a private taxi and stayed in the night in the said vehicle and also spent some time at dhabas. PW4 HC Lala Ram stated that they went for arrest of accused persons in Wagon R car and stayed in a small hotel at Prashant Vihar. All these three witnesses could not state the DD no. of departure from Delhi. All these witnesses also stated they did not inform the local police prior to arrest of accused Rohit @ Billu or after his arrest nor produced him before the local Magistrate after arrest. PW4 HC Lala Ram State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 22 Of 35 stated secret informer met them at around 4.00 p.m. at Prashant Vihar whereas PW9 IO/SI Shabir Ahmed stated that he met secret informer at around 2.00 p.m.
43. As per arrest memo accused shown to be arrested at 6.00 p.m. vide arrest memo Ex. PW3/B. This arrest memo also bears the signatures of Jyoti, wife of accused Rohit @ Billu. However, none of the witness deposed that they went to house of accused Rohit after his arrest nor stated that his wife was called as witness to his arrest. Further, the accused stated to be arrested with car and as per personal search memo nothing was recovered from possession of accused Rohit @ Billu. It is unlikely that if a person arrested all of a sudden then nothing will be recovered from his possession.
44. Therefore, the circumstance of arrest in the manner suggested by the prosecution of accused Rohit @ Billu from Prashant Vihar, Loni on 08.02.2011 do not appear to be credible and consequently the recovery of maruti car from his possession also become suspect.
Circumstance of identification of the accused persons by PW2 Vikram Singh at police station and refusal of TIP by the accused persons.
45. Accused Rohit @ Billu shown to be arrested on 08.02.2011 and produced before the court on 09.02.2011, thereafter he was sent to judicial custody and on 10.02.2011 he was produced before the court and application for conducting his TIP was moved. However, accused Rohit @ Billu refused TIP on 10.02.2011 on the ground that his photographs were taken by police in their mobiles, thereafter, his two days PC remand was obtained and accused Billu was again sent to JC on 12.02.2011. However, as per State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 23 Of 35 testimony of PW9 IO/SI Shabir Ahmed and PW2 Vikram Singh, accused Rohit @ Billu was identified by PW2 Vikram Singh in police station on 12.02.2012. As per record, accused Rohit @ Billu was sent to judicial custody on 12.02.2011. In cross examination PW9 IO stated that he sent accused Rohit @ Billu in JC at around 2.00 p.m. on 12.02.2011, whereas PW2 Vikram Singh stated that he has identified accused Rohit @ Billu in police station at around 4.00/5.00 p.m. This falsified the testimony of PW2 over identification of accused Rohit @ Billu in police station on 12.02.2011, as there is no possibility of presence of accused Rohit @ Billu in police station at around 4.00/5.00 p.m. being already sent to JC at around 2.00 pm. Therefore, it can be inferred in favour of the accused that he might be shown to complainant PW2 in police station even prior to his TIP. Hence, the circumstance of refusal of TIP by accused Rohit @ Billu appears to be believable.
46. Accused Bijender was shown to be arrested on 11.02.2011 at Saket Court. Thereafter, his TIP application was filed on the same day. However, accused Bijender refused TIP on the ground that he was shown to witness and also his photographs were taken in mobile by police. Thereafter, his PC remand was also taken and on 13.02.2011 he was sent to judicial custody. PW9 IO/SI Shabir Ahmed and PW2 Vikram Singh testified that PW2 identified him in police station on 13.02.2011. As per record, accused Bijender sent to JC on 13.02.2011 whereas PW2 Vikram Singh in cross examination stated that he identified accused Bijender in police station at around 8.00 p.m. on 13.02.2011. This also falsified the State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 24 Of 35 circumstance of identification of accused Bijender by PW2 Vikram Singh in police on 13.02.2011, further justified the refusal of TIP by accused Bijender.
47. Therefore, the entire circumstance of identification of accused persons during investigation at police station on 12.02.2011 and 13.02.2011 is all farce and refusal of TIP by accused persons appears justified. Proceedings conducted at the spot or not
48. PW9 IO/SI Shabir Ahmed stated that on receiving DD no. 33A on 28.01.2011 he immediately reached the spot and recorded the statement of PW2 Vikram Singh at the spot and in cross examination he stated that complainant written his statement at spot in his own handwriting and reached spot at around 10.15 p.m. and came back to police station at around 1.30 a.m. Further prepared site plan at the spot. However, PW2 Vikram Singh complainant in cross examination stated that after incident which completed within five minutes, he went to PS on foot where his statement was recorded, thereafter, he left for his house and when police took him to the place of incident, no writing work was done at the spot. PW12 ASI Mahavir Prasad deposed that on receiving PCR call, he reached spot but could not find any one then went to PS where he found complainant Vikram Singh (PW2). This itself shows that the proceedings as stated by the IO was not conducted at the spot but was conducted at the PS itself. Circumstance of arrest of accused Bijender
49. PW11 SI R K Vashistha from PS Indirapuram, Ghaziabad testified that on 05.02.2011 an accident took place in the area of PS Indirapuram in which State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 25 Of 35 the driver of Wagon R car bearing no. HR 51 AC 0448 hit two scooters and the driver was apprehended by the public and FIR u/s. 279/338/427 IPC was registered against him and he was entrusted investigation on 06.02.2011 and accused Bijender, driver of the said car sent to JC on 06.02.2011 and IO of the present case came to PS on 08.02.2011. In cross examination stated that IO had not met him on that day i.e, 08.02.2011, however, taken copy of FIR from PS.
50. The prosecution could not prove that IO or Delhi Police visited the PS Indirapuram on 08.02.20111 as there is no entry of arrival or departure at PS Indirapuram filed or stated before the court. However, this discrepancy do not in any manner affect the circumstance of apprehension of accused Bijender in the aforesaid accident and his sending in the judicial custody on 06.02.2011 and his production from Ghaziabad Jail to Delhi court on 11.02.2011 and subsequent arrest in Delhi in present case.
51. Therefore, prosecution able to establish that accused Bijender was found with robbed Wagon R car at the time of accident. There is nothing suggested to any of the prosecution witnesses by the accused persons that accused Bijender was not arrested in the said accident case and was not driving the said Wagon R car at the time of arrest nor there is any dispute that accused was not sent to judicial custody for the said accident on 06.02.2011 or not produced from the said custody on 11.02.2011 before Saket District Courts. Hence, the prosecution able to prove the circumstance that accused Bijender met accident while driving robbed Wagon R car.
State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 26 Of 35 Defence of the accused Rohit @ Billu
52. Accused Billu in his defence has examined DW1 Meena, his mother in law and DW2 Jyoti, his wife and both these witnesses stated that accused was at their village near Badayun, UP in some pooja from 27.01.2011 to 30.01.2011, therefore, he cannot be at the place of incident on 28.01.2011. Both these witnesses have not deposed that they made any complaint before police or any other authority that accused was at his village on the day of incident after his arrest. Accused in his statement u/s. 313 Cr.P.C. even had not taken the plea that he was busy in pooja at native place on the day of incident. The defence as laid by accused Rohit @ Billu appears all sham and not worth consideration.
53. On overall consideration of the prosecution case, the testimony of PW2 Vikram Singh found credible and remained unimpeached during cross examination over the factum of robbing of his Wagon R car by accused persons in the manner alleged by him. Further this witness appears wholly credible on the aspect of seeing the maruti car DL 3 CT 2116 car involved in the said robbery as two of the other accused persons who were not arrested went away after incident in that maruti car and present accused persons ran away his maruti Wagon R car. This witness has also given the description of present accused persons in FIR and categorically stated that both in the court as well as in his statement before the police that he can identify only present accused persons and cannot identify the third accused person who came in front of his car with pistol.
54. Prosecution also able to prove beyond doubt that the said maruti car was State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 27 Of 35 sold to accused Rohit @ Billu by PW7 Shahjad on 23.01.2011, therefore, the possession of the said car on the day of incident i.e, 28.01.2011 was with accused Rohit @ Billu. Accused could not led any evidence to show the said car was not in his possession on 28.01.2011 or he had not purchased the same from PW7 Shahjad. Accused even could not dent the testimony of PW7 Shahjad on the factum that he might be a planted witness by the police. Further, the prosecution story in locating the entire chain of transfer of the said maruti car till it is purchased by present accused Rohit @ Billu appears to be fully credible and free from any shadow of doubt. The prosecution also able to prove that accused Bijender was apprehended in accident caused by him while driving the robbed Wagon R car. Therefore, accused Bijender is also connected with the circumstance of apprehension with the robbed Wagon R car.
55. Prosecution thus, able to prove circumstance of description of incident of robbery by PW2 and further the factum of purchase of said maruti car by accused Rohit @ Billu by PW7 Shahjad and also the apprehension of accused Bijender alongwith robbed Wagon R car beyond shadow of doubt.
56. Prosecution unable to prove the circumstance of identification of accused during investigation and accused persons able too justify their refusal to TIP as already discussed. However, PW2 Vikram Singh have identified both the accused Rohit @ Billu and Bijender in the court. Now the question for consideration is that what value the court should attach to testimony of PW2 Vikram Singh over circumstance of identification of accused persons in the court when his testimony is not found reliable over State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 28 Of 35 identification of accused in the police station.
57. It is the duty of the court to construct the prosecution case by separating the believable parts and non believable parts of testimony of witness and further it is also settled proposition of law that if some part of a witness is not found credible then it is not justified by court to disregard his entire statement. Apex Court in number of pronouncements held that maxim "falsus uno falsus in omnibus" has no application in India and is not applicable in criminal jurisprudence of our country. Apex Court in Jakki @ Selvaraj Vs. State, 2001 Crl.L.J. 1671 SC observed that skill of appreciation of evidence itself demands disengaging truth from falsehood. Therefore, the wholesome rejection of the testimony of a witness because some or other part of his statement has not found to be true may lead to injustice. Apex Court in Bhagwana Tana Patil Vs. State of Maharashtra, AIR 1974 SC 21 held that function of the court is to disengage the truth from falsehood and to extract what is found to be true and reject the rest.
58. In view of these principles, the testimony of PW2 Vikram Singh as already discussed appears to be wholly reliable over the description of incident. However, his testimony over the identification of accused persons in police station appears to be false, but this falsity do not make his entire testimony unbelievable. This witness has made categorical description of accused persons in his statement before police and further identified the accused persons in court.
59. Issue remained that what value could be attached to the circumstance of identification of accused persons in the court by PW2 Vikram Singh when State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 29 Of 35 the circumstance of identification of the accused by this PW2 was disbelieved by the court during investigation and further their refusal to TIP found to be justifiable.
60. Apex Court in Daya Singh Vs. State of Haryana, 2001 Cri. L.J, 1268 in para 12 observed as under:
"12 The question, therefore, is whether the evidence of injured eyewitnesses PW37 and PW38 is sufficient to connect the appellant with the crime beyond reasonable doubt. For this purpose, it is to be borne in mind that purpose of test identification is to have corroboration to the evidence of the eyewitnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the Court. If that evidence is found to be reliable then absence of corroboration by test identification would not be in any way material. Further, where reasons for gaining an enduring impress or the identity on the mind and memory of the witness are brought on record, it is no use to magnify the theoretical possibilities and arrive at conclusion what in present day social environment infested by terrorism is really unimportant. In such cases, no hold of identification parade is not fatal to the prosecution. The purpose of identification parade is sufficiently stated by this court in State of Maharashtra VS. Suresh , (2000) 1 SCC 471 as under:
"We remind ourselves that identification parades are not primarily meant for the Court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of crime. Second is to State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 30 Of 35 satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence."
61. However, Apex Court in Budhsen Vs. State of U.P., (1970 Cri. L.J. 1149: AIR 1970 SC 1321) observed as under:
"...that as a general rule, the substantive evidence of witness is a statement made in court. The evidence of mere identification of the accused person at the trial first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances the complainant or the witness came to pick out the particular accused person and the details of the part which he allegedly played in the crime in question with reasonable particularity. In such cases test identification is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them. There may, however be exceptions to this general rule, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration. Though the holding of identification proceedings are not substantive evidence, yet they are used for corroboration purposes for believing that the person brought before the Court was real person involved int he commission of crime. The identification parade even if held, cannot, in all cases, be considered as safe, sole and trustworthy evidence on which the conviction of the accused could be sustained. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant."
State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 31 Of 35
62. Apex Court in Budhsen's case (supra) held that the evidence of identifying accused first time at trial in its very nature inherently of weak character. However, mandated exception to this rule when court satisfied that court can safely relied upon his testimony without even corroboration. But, Apex Court in Daya Singh's case held that purpose of identification parades is to have corroboration from the testimonies of eye witnesses in the form of earlier identification and that the substantive evidence of a witness is evidence in court and if that evidence is found to be reliable then absence of corroboration by Test Identification would not be in any way material. This implies that court should look the circumstance of identification in court first time with circumspection when circumstance of identification during investigation not found credible and look for certain corroboration before acting on it.
63. In present case, complainant PW2 Vikram Singh had given categorical description of accused Rohit @ Billu and Bijender in FIR and also categorically stated in FIR that he can identify both of them, further unequivocally identified both the accused persons in his testimony before the court. There is no doubt in the mind of this witness, regarding the identity of both present accused at the time of recording of FIR as well as in the court. However, this witness is found unreliable on the aspect that he had seen the accused persons on 12.02.2011 and 13.02.2011. But, as already discussed that if any statement found partly unreliable then entire testimony cannot be brushed aside. However, In these circumstances before using his testimony of identification of accused in court, court as a State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 32 Of 35 matter of prudence should look for corroboration.
64. The prosecution as already discussed able to prove beyond doubt the factum of purchase of said maruti car by accused Rohit @ Billu from PW7 Shahjad and accused Rohit @ Billu even not able to raise plausible defence as already discussed that he had not purchased the said car from PW7 Shahjad or was not in possession of the same on the day of incident. The involvement of said car in occurrence on the day of incident is categorically stated by PW2 in FIR as well as in his testimony before the court. Accused Bijender, as already discussed, was also found with the robbed Wagon R car arrested in accident case at PS Indirapuram.
65. Therefore, on cumulative consideration of the circumstance of identification of accused persons by PW2 in court alongwith the testimony of PW2 in describing the incident, and other two most important circumstance, as already discussed that accused Rohit @ Billu was in possession of said maruti car on the day of incident and accused Bijender was found with the robbed Wagon R in accident case, prosecution able to prove the involvement of accused Rohit @ Billu and Bijender in the said robbery of Wagon R car from complainant Vikram Singh (PW2). Even despite disbelieving of the circumstance of arrest and consequent recovery of maruti car from possession of accused Rohit @ Billu in the manner suggested by prosecution.
66. Bombay High Court in case titled Thambi Nasir Etc. Vs State, 2003 Cr. L.J. 493 held that even though the evidence of Test Identification Parade disregarded, but if the identification of accused person in court is amply State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 33 Of 35 corroborated by circumstantial evidence in respect of recovery of various articles from their possession then conviction of accused persons is proper and this proposition is fairly applicable in the present case as discussed in preceding paras.
67. Ld. counsel for accused has raised a plea that there are defects in investigation. As already discussed, the initial proceedings appears to be not conducted at spot and the manner of arrest of accused Rohit @ Billu and recovery of said maruti car from his possession also do not appear to be credible as already discussed. However, Apex Court in State of Karnataka Vs. Y. Yerappa Reddy, 1999 (8) SCC 715 has held that it is well settled that even if the investigation is illegal and suspicious on some aspects, rest of evidence must scrutinized independently of its impact. In present case, thus, the defective investigation conducted by the police do not in any way affect the credible circumstance of commission of robbery in the manner testified by PW2. Further circumstance of possession of said maruti car with accused Rohit @ Billu on the day of incident or custody of said robbed Wagon R car with accused Bijender is not at all doubtful. Furthermore, these circumstances are duly corroborated circumstance of identification of accused in court by PW2. Thus, accused persons are found guilty of commission of offence u/s. 392/34 IPC.
68. Admittedly, as per testimony of PW2 Vikram Singh, both the present accused had not shown him the pistol at the time of commission of robbery, it was the third person who shown him the pistol and that person was not arrested in the present case. It is settled proposition of law that State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 34 Of 35 section 397 IPC could be proved only against the offender who had shown the pistol nor against other accused persons who participated with him. Hence, present accused persons are not liable for commission of offence u/s. 397 IPC.
69. On over all discussion, prosecution able to prove its case beyond reasonable doubt against present accused persons for commission of offence u/s. 392/34 IPC. However, no offence u/s. 397 IPC proved against the accused Rohit @ Billu and Bijender. Hence, accused Rohit @ Billu and Bijender are acquitted of charge u/s. 397 IPC and convicted for commission of offence u/s. 392/34 IPC.
70. Accused persons be heard on point of sentence on 22.09.2012.
Announced in Open Court
On 11th September, 2012 (Ajay Kumar Jain)
ASJ03: SE: NEW DELHI
State Vs. Billu @ Rohit etc., SC No. 215/11 page no. 35 Of 35