Delhi District Court
(A) State vs 1) Mohd. Mumtaz on 8 October, 2016
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
New Sessions Case No. 53301/16
FIR No. 237/2002
PS: Adarsh Nagar
U/s 395/397/412/120B IPC
(A) State Versus 1) Mohd. Mumtaz
(hereinafter referred to as A1)
Son of Sh. Mohd. Umar
Resident of H.no. GE-14/404,
New Seelampur, Delhi.
2) Mohd. Javed
(hereinafter referred to as A2)
Son of Sh. Jiyauddin
Resident of H.No.J-17/6,
Chauhan Bangar, New Seelampur,
Delhi.
3) Umardeen @ Bobby
(hereinafter referred to as A3)
Son of Sh. Abdul Hakim
Resident of H.No. House of Haji Rafiq,
Chand Tent House, Bhagirathi Vihar,
Mustafabad,Delhi.
4) Mohd. Shakir
(hereinafter referred to as A4)
Son of Sh. Nasir
Resident of H.No.Z-2/344,
Kabutar Market, Delhi.
5) Shakeel
(hereinafter referred to as A5)
Son of Sh. Bundhu
Resident of H.No. E-1/3,
New Seelampur, Delhi.
FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors ) Page 1 of 41
6) Shabir
(hereinafter referred to as A6)
Son of Sh.Saddique
Resident of H.No. C-21,
New Seelampur,Delhi.
7) Sajid @ Bhura
(hereinafter referred to as A7)
Son of Sh. Nizamuddin
Resident of Badka Road, Barot,
Thana- Barot, District-Bagpat, U.P.
8) Samir @ Arif
(hereinafter referred to as A8)
Son of Sh. Mohd. Ilyas @ Nanhe Khan
Resident of H.No.F-439,Gali No.3,
In front of Church, Khajuri Khas, Delhi.
(B) State Versus Mohd. Mumtaz (A1)
FIR No. 252/2002
PS: Adarsh Nagar
U/s 25 Arms Act
(C) State Versus Shabir (A-6)
FIR No. 253/2002
PS: Adarsh Nagar
U/s 25 Arms Act
Date of institution in Sessions Court: 24.10.2002
Date of conclusion of arguments : 27.09.2016
Date of pronouncement of judgment: 08.10.2016
FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors ) Page 2 of 41
Memo of Appearance:
Sh. Sanjay Jindal, learned Addl. P.P. for State
Sh. M.S. Saifulla, learned defence counsel for all accused except A-3
Sh. Himanshu Buttan, learned Amicus Curiae for A-3
JUDGMENT
PROSECUTION STORY 1.0 Vaish Co-operative Adarsh Bank Limited was having its one branch at C-17, First Floor, New Subzi Mandi, Azadpur, Delhi.
1.1 Incident is of 18/06/2002. Several bank officials were present inside the bank besides two customers. At about 2.45 p.m., 6-7 persons barged into said bank premises. All such intruders were armed with country made pistols and asked the bank staff officials not to move from their respective seats and were asked to keep their faces down. When Accounts Assistant Sh. S.D. Sethi (PW3) and one customer Vijay Singh tried to look-up in order to see as to what was happening, they both were given blows on their heads with the butt of pistols. Sh. Sanjeev Kumar Bansal (PW1), cashier of the bank was asked to hand over the cash and he accordingly handed over the available cash to those robbers.
1.2 All said dacoits looted cash amount of approximately 5 lacs and fled.
1.3 Police learnt about the incident at about 3.20 p.m. through DD No. 21 (Ex. PW2/A). ASI Om Prakash and Ct Umesh Kumar rushed to the spot. In-charge Police Post New Subzi Mandi i.e. SI Satwinder Singh Rana (PW48) and HC Vijay Kumar also hurried there.
1.4 SI Satwinder Singh Rana met all the bank officials and recorded statement of cashier Sh. Sanjeev Kumar Bansal (PW1). On the basis of said statement, FIR No. 237/02 was recorded for commission of offences u/s 395/397 FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors ) Page 3 of 41 IPC. Crime team and CBI team were summoned for inspection of the spot.
1.5 Initially, the police was clueless about the identity of all such dacoits.
1.6 On 27/06/2002, on the basis of secret information, police learnt that two such dacoits would be present near Akash Cinema in one Maruti Zen car No. DL- 2CJ-9143. Raiding team surrounded said Zen car at about 3.45 p.m same day and Mohd. Mumtaz (A1) and accused Shabir (A6) were overpowered. They both were searched. A1 was found carrying one button actuated knife and A6 was found carrying one country made revolver.
1.7 Separate FIRs were accordingly registered. FIR No. 252/2002 pertains to A1 who was found in possession of button actuated knife and FIR No. 253/2002 was registered against accused A6 who was found in possession of country made pistol.
1.8 When A1 and A6 were interrogated, they admitted their involvement in the aforesaid bank dacoity as well.
1.9 When the car was searched, from the front dashboard, two wads of notes of the denomination of Rupee 100 were recovered at instance of A-1. These notes were having slips of the same bank. Such amount of Rs. 20,000/- was seized. At the instance of A-6, another sum of Rs. 30,000/- was recovered concealed beneath the driving seat of said Zen car. All such notes were also in the wad of Rupee 100 denomination having similar slip of the same bank. Such amount of Rs. 30,000/- was also seized by the police.
1.10 Both the said accused spilled the beans and revealed the names of their accomplices. Their disclosure statements and further investigation led to the arrest of remaining dacoits as well. Police accordingly reached other accused persons and made recovery from them.
FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors ) Page 4 of 411.11 In all, a sum of Rs. 1.70 lacs was recovered, out of the stolen amount of Rs. 4.42 lacs. Following table would show the recovery of the robbed amount:-
S.No Name of Amount Place of recovery Date of Document Exhibited accused recovery as A1 Mohd. Mumtaz Rs. 20,000/- Front dashboard of 27/06/2002 Ex.PW11/H Ex. P8 Zen car No. DL-2CJ-
(1 to 2)
9143
A2 Mohd. Javed Rs. 10,000/- Own house no. J-17/6 29/06/2002 Ex.PW10/L Ex. P7
New Seelampur,
Delhi.
A3 Umardeen @ Rs.30,000/- House situated near 28/06/2002 Ex.PW11/O Ex. P9
Bobby Chand Tent House,
Bhagirathi Vihar,
Karawal Nagar, Delhi
A4 Mohd. Shakir Rs. 20,000/- H.No. Z-2/344, 28/06/2002 Ex.PW11/Q Ex. P11
Kabutar market,
(1 to 2)
Welcome Seelampur,
Delhi.
A5 Shakeel Rs. 30,000/- H.No. E-1/3, New 28/06/2002 Ex.PW11/P Ex. P5
Seelampur, Delhi.
A6 Shabir Rs.30,000/- Driving seat of Zen car 27/06/2002 Ex.PW10/E Ex. P4
No. DL-2CJ-9143
(1 to 3)
A7 Sajid @ Bhura Rs. 20,000/- H.No. Badka road, 30/08/2002 Ex.PW14/A Ex. P12
Mulla Jat, Barot,
(1 to 2)
Baghpat, U.P.
A8 Samir @ Arif Rs. 10,000/- Conscious possession 29/06/2002 Ex.PW10/G Ex. P6
when the amount was
being carried in one
packet.
1.12 It will be also worthwhile to mention here that as per the specific case of
prosecution, the bank dacoity had been committed by A1 to A7 and one Taj Mohd. (already discharged). Taj Mohd. was alleged to be the kingpin. As far as accused Samir @ Arif (A8) was concerned, he was claimed to be mere receiver of looted property.FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors ) Page 5 of 41
1.13 A1 to A7 were also asked to participate in TIP but they refused to participate in TIP. Investigation was accordingly carried out and challan was prepared.
1.14 Main Charge-sheet was submitted on 25/09/2002 and since the offences u/s 395/397 IPC were triable exclusively by the Court of Sessions, the case was committed to the Court of Sessions.
1.15 As regards accused Taj Mohd., no recovery had been effected from him and he was not identified during the TIP either. Fact, however, remains that he was formally arrested in the present matter on 20/03/2003 and a supplementary charge-
sheet against him was also laid.
1.16 It will be also important to mention here that though offence u/s 25 Arms Act was triable by Magisterial Court, yet keeping in mind the fact that the weapons allegedly recovered from A1 and A6 had been used in the main incident of bank dacoity, in order to avoid any conflicting judgments, said two cases pertaining to offence u/s 25 Arms Act were also committed. Reference in this regard be made to order dated 17/10/2002 passed by the concerned Magisterial Court.
ASCERTAINMENT OF CHARGES 2.0 Arguments on charge were heard.
2.1 As far as accused Taj Mohd. was concerned, he was discharged vide order dated 27/09/2003.
2.2 A1 to A7 were directed to be charged u/s 395/397/120B IPC.
2.3 A8 was ordered to be charged u/s 412 IPC simpliciter.
FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors ) Page 6 of 412.4 A1 was charged u/s 25 Arms Act for being found in illegal possession of knife. A6 was also similarly charged u/s 25 Arms Act for being found in possession of firearm.
2.5 All the accused pleaded not guilty and claimed trial.
2.6 It will be also important to mention that vide order dated 16/10/2007, the trial of all the three cases was directed to be carried our together and it was also directed that the main evidence be recorded in FIR No. 237/2002 i.e. bank dacoity matter.
Prosecution Evidence 3.0 Prosecution was directed to adduce evidence and examined 48 witnesses.
3.1 These witnesses can be classified as under:-
Bank officials/spot witnesses
i) PW1 Sanjeev Kumar Bansal (Cashier)
ii) PW3 S.D. Sethi (Assistant Accountant)
iv) PW4 Sudhir Kumar (Clerk)
v) PW6 Ramesh Kumar (Accountant)
vi) PW7 Krishan Gopal Gupta (Assistant Cashier)
vii) PW18 Mrs. Kamlesh Gupta (Manager) Other public witnesses
i) PW33 Mohd. Nasir (owner of Maruti Zen)
ii) PW44 Sh. D.K. Mishra (official from Home Department for proving notification)
iii) PW47 Sh. Ravinder Yadav, Jt. CP (for proving sanction u/s 39 Arms Act) FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors ) Page 7 of 41 Other witnesses related to investigation
i) PW2 Ct Narinder Kumar (DD Writer)
ii) PW5 ASI Bhagwan Devi (Duty Officer of bank dacoity case)
iii) PW8 Ct Amit Sharma (for proving arrest of A-7)
iv) PW9 ASI Kaptan Singh (dropped by prosecution)
v) PW10 HC Naresh Kumar (for proving arrest of A-1 & A-6)
vi) PW11 SI Naresh Kumar (for proving arrest of A-1 & A-6)
vii) PW12 Ct Jaswant Singh (for proving arrest of A-1 & A-6)
viii) PW14 HC Balwan Singh (for proving recovery from A-7)
ix) PW15 ASI Vikram Singh (IO of case FIR No. 252/00)
x) PW16 ASI Om Prakash (Duty officer of Arms Act cases of A-2 & A-5)
xi) PW17 SI Ramji Pandey (dropped by prosecution)
xii) PW19 HC Vijay Kumar (police official who took rukka to PS)
xiii) PW20 HC Azad Singh (recorded FIRs No. 252/02 & 253/02)
xiv) PW22 SI Bhawan Singh (IO of case FIR No. 253/02)
xv) PW23 W/SI Satish Bhati (recorded FIR No. 345/02 PS Sarita Vihar xvi) PW24 HC Rajpal (for proving arrest of A-2 & A-8) xvii) PW25 HC Shailesh (for proving arrest of A-6 in Arms Act case) xviii) PW26 HC Amar Pal (for proving arrest of A-3, A-4 & A-5 and recoveries from them).
xix) PW27 ASI Kamal Jeet Singh (MHCM PS Adarsh Nagar)
xx) PW28 HC Ashok Kumar (for proving arrest of A-1 & A-6 and recoveries
from them).
xxi) PW29 HC Jogender Singh (for proving arrest of A-7 in case FIR No.
345/02)
xxii) PW30 Ct Dheeraj (depositor of pullanda with FSL)
xxiii) PW31 HC Mukesh Kumar (for proving arrest of A-1 & A-6)
xxiv) PW32 ASI Satender (MHCM PS Sarita Vihar)
xxv) PW35 Insp. Akhilesh Yadav (IO of case FIR No. 345/02 PS
Sarita Vihar)
xxvi) PW36 SI Ajay Kumar (IO of case FIR No. 246/02 PS
Seelam Pur)
xxvii) PW38 Retired SI Om Parkash (police official to whom
initially DD No. 21 PP N.S. Mandi was assigned before SI S.S. Rana) xxviii) PW40 HC Umesh (police official who took rukka to PS and got the FIR registered) xxix) PW41 Insp. Vijay Singh (police official who gave information to PP Subzi Mandi of PS Adarsh Nagar regarding arrest of A-7 in case FIR No. 345/02 PS Sarita Vihar and disclosure statement with respect to case FIR No. 237/02) xxx) PW42 Sh. Sanjay Kumar Aggarwal (learned TIP Judge) xxxi) PW43 SI Dinesh Pal (for proving arrest of A-1 & A-6) xxxii) PW45 W/Ct Rekha (PCR official who proved PCR form) FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors ) Page 8 of 41 xxxiii) PW46 SI Virender Singh (for proving arrest of discharged accused) xxxiv) PW48 SI Satwinder Singh Rana (investigating officer) Doctor/FSL experts
i) PW13 Sh. K.C. Varshney (Ballistic Expert)
ii) PW21 Dr. Seema (doctor who medically examined Dr. Vijay Singh and PW3 Sh. S.D. Sethi)
iii) PW34 Sh. S.K. Chaddha (official from Fingerprint Division)
iv) PW37 Sh. Gautam Roy (official from Fingerprint Division)
v) PW39 Sh. R.N. Rawat (official from Fingerprint Division) VERSION OF ACCUSED
4.0 All the accused, in their statements u/s 313 Cr.P.C., pleaded innocence and claimed that they had no connection or involvement with the incident of bank dacoity and that they had been falsely implicated.
4.1 A-8 Sameer @ Arif also pleaded innocence and asserted that he was never found in possession of any robbed money.
4.2 A-4 Mohd. Shakir examined Noor Jahan in his defence in order to show that he had to even pay bribe to the investigating officer to ensure his release in the matter.
4.3 A-3 Umardeen & A-8 Sameer examined DW2 Shenaz. She happens to be wife of A-3 Umardeen and she deposed that her husband and her brother Arif had been falsely implicated and that there was demand of bribe from the side of po- lice.
4.4 A-6 Shabir has examined DW3 Shakir and A-5 Shakeel has examined his co-brother DW4 Mehboob with the same objective.
FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors ) Page 9 of 41RIVAL CONTENTIONS 5.0 I have heard learned Addl. P.P., who has vehemently contended that prosecution has been able to prove its case beyond shadow of doubt.
5.1 According to him, seven bank officials have graced the witness box and their testimony clearly indicates that a dacoity had taken place in the bank. He admits that though five such witnesses could not identify the accused persons yet keeping in mind the testimony of two bank officials i.e. PW1 Sanjeev Kumar Bansal (Cashier) and PW18 Kamlesh Gupta (Manager) coupled with the recovery of bundles of notes which were carrying the slips of Vaish Cooperative Adarsh Bank, it stands proved that the dacoity had been committed by A-1 to A-7.
5.2 He has also argued that it also stands established that A-8 Sameer @ Arif was also a close associate of all such dacoits and that he was found in conscious possession of Rs. 10,000/- which was part of such robbed amount.
5.3 Sh. Jindal has asserted that minor discrepancies and omissions should not be given any predominance and the testimony of PW1 Sanjeev Kumar Bansal and PW18 Kamlesh Gupta clearly indicates the complicity of accused persons.
5.4 Sh. Saifulla, learned defence counsel for all the accused (except A-3 Umardeen) has contended that accused have been falsely implicated. According to him, prosecution was duty bound to prove its case as set up in the charge-sheet whereas prosecution has deviated, materially and significantly, and has rather tried to project a new story which, in itself, is sufficient to throw away the entire case of prosecution.
5.5 According to him, there was no bank official who could be said to be in a position to identify such dacoits. According to him, all bank officials were under FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 10 of 41 scanner and their involvement was also apprehended. They all were rather let off and during investigation, accused were shown to them and accordingly all the accused were framed.
5.6 He has also argued that when PW1 Sanjeev Kumar Bansal and PW18 Kamlesh Gupta entered into witness box, they, even otherwise, identified different accused persons and failed to identify those whom they had allegedly identified during investigation. Thus, such wrong identification has no value in the eyes of law and moreover first time identification n the court in the peculiar backdrop of the present case is also meaningless.
5.7 He has also drawn my attention towards various omissions and contradictions which, according to him, go to the root of the matter and has caused irreparable damage to the case of prosecution and serious prejudice to the defence. He has, therefore, contended that all the accused should be acquitted while supplementing that most of them have already undergone a period of more than four and half years behind the bars.
5.8 Sh. Buttan has also adopted the same line of arguments and has emphasized that A-3 Umardeen has been falsely implicated.
5.9 Learned defence counsel has also relied upon several precedents. According to him, the evidentiary value and the element of trustworthiness of any defence witness is to be considered at par with prosecution witnesses. In this regard, he has placed reliance upon Munshi Prasad and others Vs. State of Bihar, AIR 2001 Supreme Court 3031, State of Haryana Vs Ram Singh, AIR 2002 Supreme Court 620 and State of U.P. Vs Babu Ram, 2000 III AD (S.C.)
319. 5.10 He has also contended that no public witness was involved in the alleged search and seizure despite there being ample opportunity and such fact FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 11 of 41 itself is sufficient to throw away the entire case of prosecution. In this regard, he has relied upon Rattan Lal Vs Stat, 32 (1987) Delhi Law Times 1, Saudan and another Vs. State of Rajasthan, 2002 CRI. L.J. 4816 and Jaivir Singh Vs. State (Delhi Admn), 1995 CRI. L.J. 1477.
5.11 As regards manner of identification, he has relied upon Siri Ram Sharma and others Vs State, 1995 CRI. L.J. 1116, Mahabir Vs. State of Delhi, IV (2008) SLT 127, Shaikh Umar Ahmed Shaikh Vs State of Maharashtra, AIR 1998 Supreme Court 1922, Dana Yadav alias Dabu & Ors Vs. State of Bihar, AIR 2002 Supreme Court 3325 and Fateh Mohamad Gulmohamad Sayed Vs. State of Maharashtra, 2003 CRI. L.J. 3586.
5.12 I have given my thoughtful consideration to the rival contentions and carefully perused the entire material available on record.
5.13 There are two important aspects which would decide and govern the outcome of the case. These are identification of the dacoits and recovery of stolen money.
5.14 Much has been said about identification and, therefore, also it will be worthwhile if I take up the aspect of identification first of all.
ISSUE RELATED TO IDENTIFICATION 6.0 Before discussing the testimony of prosecution witnesses, it will be important to understand as to what case has been projected by the investigating agency.
FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 12 of 416.1 FIR was recorded on the basis of statement of cashier Sanjeev Kumar Bansal.
6.2 In his first such statement (Ex. PW1/A) recorded on 18.06.2002 itself, Sanjeev Kumar Bansal claimed that six-seven young-looking persons had entered inside the Branch. They were carrying firearms and knives and were in the age group of 20-30 years and were using Jattu (used by rural Jats) language. He also claimed that he could identify all such persons if shown to him. Thus according to PW1 Sanjeev Kumar Bansal, he was in a position to identify all the accused persons.
6.3 However, he made subsequent statement same day and in his such supplementary statement, he, interestingly, retracted and clarified that he could not see all the dacoits properly because they were scattered and, therefore, he was in a position to identify three accused persons only who had come towards his counter. Thereafter, he identified A-6 Sabir on 11.07.2002 at Tis Hazari Courts and A-7 Sajid @ Bhura on 30.08.2002 at PS. There is no other statement of Sanjeev Kumar Bansal.
6.4 Thus, all in all, Sanjeev Kumar claimed during investigation that he could identify only three accused persons and identified A-6 Sabir and A-7 Sajid @ Bhura only.
6.5 PW18 Kamlesh Gupta claimed that she could identify only three persons. Her statement dated 18.06.2002 (Ex. PW18/DA) may be referred to in which she claimed that she could identify only three persons, two of whom were standing at the entrance gate and one was roaming here and there within the bank premises. Thereafter, her another statement was recorded on 11.07.2002 at PS and in her such statement, she identified those three persons as A-1 Mohd. Mumtaz, A-2 Mohd. Javed and A-4 Mohd. Shakir. There is no other statement of Kamlesh Gupta.
FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 13 of 416.6 PW6 Ramesh Kumar also identified same three persons i.e. A-1 Mohd. Mumtaz, A-2 Mohd. Javed and A-4 Mohd. Shakir during investigation. Reference be made to his statements dated 18.06.2002 and dated 11.07.2002 when he identified said three persons at PS. 6.7 PW Vijay claimed that he was in a position to identify only two persons i.e. A-3 & A-5. Reference be made to statements made by him on 18.06.2002 and 11.07.2002.
6.8 PW3 Sh. S.D. Sethi also, in his statement made on the date of occurrence itself, claimed that he could identify only two persons as he was not able to see other persons properly. He, however, identified both such persons i.e. A-3 Umardeen and A-5 Shakeel on 11.07.2002.
6.9 As per statement dated 18.06.2002 made by Nilesh, he was able to identify three persons who had approached near the counter but fact remains that during investigation, he identified only one person i.e. A-6 Shabir. Reference be made to his statement dated 11.07.2002 made under Section 161 Cr.P.C.
6.10 PW4 Sh. Sudhir Kumar claimed that he could identify only three persons and not the others. He identified A-6 Shabir and A-7 Sajid @ Bhura as per his statements dated 11.07.2002 and 30.08.2002 respectively.
6.11 As per PW7 K.G. Gupta also, he was in a position to identify three persons and he identified A-6 Shabir and A-7 Sajid @ Bhura as per his statements dated 11.07.2002 and 30.08.2002 respectively.
6.12 I have not been able to find out any other statement made by bank officials under Section 161 Cr.P.C. whereby they might have identified any other persons or might have claimed that they were in a position to identify all the dacoits.
FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 14 of 416.13 Learned Addl. PP also confirms said status. Thus, from the statements made by these crucial bank officials, it is quite evident that no one was in a position to identify all the dacoits.
6.14 Following chart would also show the exact position as emerging out from the investigation:-
S. No. Name of Bank Official Identified during investigation 1 PW1 Sh. Sanjeev Kumar Bansal A-6 (present near the counter) A-7 (present near the counter) 2 PW4 Sh. Sudhir Kumar A-6 (present near the counter) A-7 (present near the counter) 3 PW7 K.G. Gupta A-6 (present near the counter) A-7 (present near the counter) 4 PW Sh. Vijay Kumar A-3 (the person who had hit him) A-5 (the person who had hit SD Sethi) 5 PW3 Sh. S.D. Sethi A-3 (the person who had hit Vijay) A-5 (the person who had hit him) 6 PW6 Sh. Ramesh Kumar A-1 (at the entrance gate) A-2 (present with katta as well) A-4 (at the entrance gate) 7 PW18 Ms. Kamlesh Gupta A-1 (near the entrance gate) A-2 (roaming here and there) A-4 (near the entrance gate) 8 PW Nilesh Aggarwal A-6 (at the counter) 6.15 Prosecution could not examine Sh. Nilesh Aggarwal and Sh. Vijay Kumar.FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 15 of 41
6.16 PW3 Sh. S.D. Sethi and PW4 Sh. Sudhir Kumar, PW6 Sh. Ramesh Kumar and PW7 Sh. K.G. Gupta though testified yet they have not been able to identify even a single accused. They all did claim that a dacoity had taken place but they were very specific and adamant in their stand and claimed that they were not in a position to identify any of the accused.
6.17 As per PW3 Sh. S.D. Sethi, when he was present inside the cabin in the bank and discussing with one customer Dr. Vijay Kumar, many customers entered in the bank and suddenly, one person entered inside his cabin and asked him to stand up and directed him to keep his head down. Such person was also holding some weapon in his hand and such customer Dr. Vijay Kumar was also asked to keep his head down. He claimed that accused had forced them to keep their faces down so that they could not see up. According to him, five-six or more persons were present and they all looted Rs. 5 lacs approximately. He claimed that he could not identify any of the accused since considerable time had elapsed. He was duly confronted with his previous statement but he denied out rightly that he had identified accused A5 Shakeel and A3 Umardeen on 11.07.2002 in Tis Hazari Courts.
6.18 PW4 Sh. Sudhir Kumar also deposed that he could not identify any of the accused as he had been directed to look down at the time of incident. He was also duly confronted with is previous statement but he denied that he had ever visited the court on 11.07.2002 and identified accused Sabir. He also denied that he had ever seen accused Sajid @ Bhura at PS Adarsh Nagar on 30.08.2002.
6.19 PW8 Sh. Ramesh Kumar has also deposed that he was asked to move beneath the counter in his cabin. He also could not identify any accused despite being pointed out. His cross-examination by prosecution also did not yield any result.
6.20 PW7 Sh. K.G. Gupta has claimed that when incident of dacoity had taken place, he was in the toilet and when he came out, one of the accused persons FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 16 of 41 placed a knife on his neck and directed him to sit down and keep his head downwards and he did not know as to how many accused had entered the bank.
He also could not identify any dacoit. He was also confronted with his previous statement but could not identify anyone. He rather claimed that he had never made any supplementary statement during investigation whereby he had identified accused A6 Sabir and A7 Sajid @ Bhura.
6.21 Thus, testimony of PW3 Sh. S.D. Sethi, PW4 Sh. Sudhir Kumar, PW6 Sh. Ramesh Kumar and PW7 Sh. K.G. Gupta does not do any good to the case of prosecution. They all have failed to identify the accused and rather categorically asserted that they never made any supplementary statement (s) identifying any accused. This impliedly means that the supplementary statements on record are sort of fabricated statements.
6.22 Let me now see the testimony of PW1 Sh. Sanjeev Kumar Bansal and PW18 Ms. Kamlesh Gupta.
6.23 As per PW1 Sh. Sanjeev Kumar Bansal, he was working as cashier in said bank of Azad Pur Mandi Branch. Curiously, he gave date of incident as 19.06.2002 whereas incident had taken place on 18.06.2002. Be that as it may, it seems to be more of a clerical error. He further deposed that after the lunch was over, at about 2.45 PM, 8-9 persons entered the bank. Then he corrected himself by claiming that 6-7 persons had entered the bank. He deposed that he could identify those persons and then he identified A-1, A-3, A-5 & A-7. He also gave their roles. I have already noted that during investigation he had identified A-6 & A-7 only and since he was also taken for the purpose of TIP of accused Taj Mohd. (since discharged), it automatically means that he was also in a position to identify Taj Mohd. Thus, at best he could have identified A-6, A-7 and Taj Mohd. When his deposition was recorded, he did not mention anything about A-6 Shabir at all. He did identify accused Sajid @ Bhura (A-7) as the person who was standing at the counter but he also identified A-3 Umardeen and A-5 Shakeel as those who looted FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 17 of 41 the cash and A-1 Mohd. Mumtaz as the one standing at the counter. Fact remains that he was in no position to identify that robber who was standing at the entrance gate.
6.24 He claimed that some of the accused were having country-made pistols and some were carrying knives but could not elaborate as to which accused was holding which weapon. He deposed that A-5 Shakeel had come at the counter and asked for the keys and Rs. 4.5 lacs were looted and was taken away by accused in a black color bag. He deposed that one of the accused had hit one customer who was doctor by profession and other accused had attacked a staffer i.e. Sh. S.D. Sethi. He claimed that he could not identify as to which such accused had attacked them. As per him, police had the spot and recorded his statement Ex. PW1/A. 6.25 Since he was not fully supporting the case of prosecution, he was cross- examined by learned Prosecutor with the permission of the Court and despite such cross-examination, he denied having joined any investigation at Tis Hazari Court where he had identified A-6 Shabir as one those persons who had lifted the amount from bank counter. He rather volunteered and claimed that he had seen all the accused after the incident in the Court for the first time.
6.26 In cross-examination, he claimed that police had recorded his statement Ex. PW1/A at PS Adarsh Nagar and before recording of such statement, he was taken to Police Headquarters for preparation of sketches of the suspects which took around four hours and thereafter he returned to PS at 7.00 PM and then his statement was recorded. A court question was also put to him whether he had understood the contents of his statement Ex. PW1/A before signing the same. Surprisingly, he answered in negative and claimed that he was not permitted to go through such statement and rather he was told that any delay in signing the statement could implicate him also in the matter. This indirectly means that even the role of the bank officials was under some sort of scrutiny and they also apprehended that police could even implicate them in the present matter.
FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 18 of 416.27 He also revealed that person sitting in cashier room could not see as to what was happening in the cabin of Branch Manager and vice-a-versa because there was a staircase between two cabins. He also admitted that site plan Ex. PW1/DA was not showing those cabins. He also claimed that such site plan was not prepared by the police in her presence. He also claimed that robbery lasted for about seven minutes.
6.28 PW1 Sanjeev Kumar Bansal claimed that A-5 Shakeel had jumped inside the cash cabin. I have already mentioned above that he was in no position to identify A-5 Shakeel if his statements recorded during the investigation are to be believed.
6.29 He also complexed the scenario by claiming that except for Ex. PW1/A, police had never recorded his any other statement.
6.30 He also went on to depose that approximately two or three days after the occurrence, accused persons had been brought to their Branch for verification as to whether they were the same persons who committed the dacoity.
6.31 This is perplexing and baffling.
6.32 Prosecution also did not seek any permission of the court to re-examine him to clarify the confusion and chaos created by PW1 Sh. Sanjeev Kumar Bansal by making such revelation. He was very categoric and claimed that these accused were brought to the bank two-three days after the occurrence. Incident is of 18.06.2002 and, therefore, logically accused must have been brought to the Bank on 21.06.2002 but if the case of prosecution is to be believed then accused persons were apprehended not before 27.06.2002. This mystifying aspect could not be elucidated by the prosecution. If at all, police was of the opinion that it had been able to catch the dacoits then instead of bringing them face to face with the star FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 19 of 41 witnesses, they should have rather gone for judicial TIP or should have taken adequate steps to ensure that their faces were muffled.
6.33 Let me now switch to the testimony of PW18 Ms. Kamlesh Gupta.
6.34 She was posted as Branch Manager at the relevant time and as already noticed above, she identified only A-1, A-2 & A-4 during the investigation. In the witness box, she identified A-1, A-2, A-3 & A-5 which is not in synchronization with her version surfaced during investigation.
6.35 She deposed that at about 2.45 PM when she was present near the seat of Accountant, 6-7 persons armed with various weapons entered in their bank. Thereafter, she identified four said accused persons. Accused Shakeel (A-5) jumped towards the cash cabin and thereafter on the basis of threat given by all such accused persons, all the staff members of the bank bowed down their heads. All the staff were very much terrified and accused persons had given beatings to Sh. S.D. Sethi, Assistant Accountant and one customer Vijay Singh. She further deposed that A-5 Shakeel had demanded keys from Sanjeev Bansal who was present in the cash cabin at that time and thereafter accused persons took out cash from the safe/cash box. She, however, claimed that since she was very terrified and did not raise her head, she was not sure which out of those four accused persons had caused injuries to Sh. Sethi and Dr. Vijay Singh. Thereafter, all the four accused persons along with their associates took away cash and bolted the Branch from outside and left while threatening not to do anything for 15-20 minutes. She deposed that while leaving accused had also snapped various wires and cables and thereafter some staff member of the Branch had blown the siren.
6.36 She deposed that she fell sick thereafter and did not know about further details. Police had taken her to a doctor for necessary medical aid. She also revealed names of staff members who were present that day as Accountant Ramesh Kumar, Cashier Sanjeev Bansal, Assistant Accountant S.D. Sethi, Clerks FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 20 of 41 Neelesh Aggarwal, Krishan Gopal Gupta and Sudhir Gupta. She also revealed that on the day of occurrence, both the peons, namely, Satish Kumar and Dineshwar were on leave. According to her, a sum of Rs. 4.42 lacs was robbed and later police informed them that they had recovered a sum of Rs. 1.70 lacs.
6.37 Since as regards identification of the accused persons, she did not fully support the case of prosecution, prosecution pointed out towards accused Shakir (A-4), accused Sajid @ Bhura (A-7) and accused Shabir (A-6) and despite such pointing out, she claimed that she was not able to identify them. She, too, claimed that her statement was recorded by the police on the day of occurrence at PS only once whereas fact remains that her supplementary statements are also there on judicial file.
6.38 She testified that after the occurrence, she had seen all the accused persons, whom she had identified, in the court for the first time which also indirectly implies that her supplementary statements are false and fictitious. She also does not know as to which of the four accused persons was carrying any weapon. She also failed to describe the roles of the accused persons except for accused Shakeel (A-5) whom she was in no position to identify. She did not give the description of the accused persons to the police and she merely mentioned about their age. She admitted that she had not revealed about the respective roles of the robbers when police had recorded her statement. She also admitted that she never stated to the police that one such accused had jumped through cashier's cabin. She reiterated in her further cross-examination dated 08.08.2008 that all those accused, whom she had identified at the time of recording of her examination-in-chief, were seen by her for the first time after the incident.
6.39 As per the specific case of prosecution, A-1, A-2 & A-4 remained at the gate and rest of the four accused persons i.e. A-3, A-5, A-6 & A-7 had proceeded towards counter. A-3 & A-5 had injured S.D. Sethi and Dr. Vijay Kumar respectively.
FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 21 of 416.40 Site plan would have served substantial purpose in order to understand the location of all such accused persons but investigating agency did not take any pain whatsoever in preparing such site plan. It is rather one of the most sketchiest site plan I have ever come across. Case was a sensational one but in site plan (Ex. PW1/DA), in a very perfunctory and sloppy manner, one point 'A' has been shown where dacoity had taken place. Need of the hour was to prepare a sketch plan, preferably a scaled one as well, showing cabins as well as the positions of various bank officials including customer Dr. Vijay Kumar and relevant distances to, at least, comprehend whether it was possible for bank officials to identify the accused or not. Nothing of that sort was done. So much so, the photographs of the bank were never taken. It is also not clear whether crime team had inspected premises as crime team report is not on record.
6.41 Interestingly, police was able to lift fingerprint impression as well as footprint impression from the bank.
6.42 Reference be made to the testimony of PW34 Sh. S.K. Chadha and PW37 Sh. Gautam Rai. They both are experts from Fingerprint Bureau of CFSL and they had visited the crime of scene on 18.06.2002 itself and on examination of spot, they found one footprint (Q-1). Two chance-print of fingerprints (Q-2 & Q-3) were also developed in the forensic laboratory. Reference be made to the testimony of PW39 Sh. R.N. Rawat. As per his report Ex. PW39/A, two chance-prints were developed from counter and he also requested the concerned police official to send finger impression of the suspects for necessary comparison.
6.43 Fact, however, remains that no chance-print of any suspect or accused was ever sent to forensic laboratory for comparison or analysis. This was huge investigational lapse. Police was having developed chance-prints lifted from the scene of crime and if at all accused persons were the actual dacoits, it could have very easily obtained their fingerprints and could have sent the same for necessary FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 22 of 41 scrutiny. Omission on this crucial aspect persuades me to draw adverse inference against the investigating agency.
6.44 Be that as it may, identification of some of the dacoits during the trial in the aforesaid backdrop does not seem to be compelling enough. I will not be able to give any real and substantial weightage to the testimony of PW18 Ms. Kamlesh Gupta either. As per investigation, she had identified three accused only who were present near the entrance/gate. These were A-1, A-2 & A-4. She did not seem to be in any position to identify the other dacoits but in witness box, she is somehow able to identify A-3 & A-5 as well and does not whisper anything about A-4 at all. There is a big question mark over the identification process as PW1 Sanjeev Bansal has also categorically claimed that 2-3 days after the incident, all the accused had been brought to the bank for identification. This smacks of malafide. It automatically shows that accused persons were fully justified in refusing to undergo judicial TIP. A-2 had refused to participate in TIP on 01.07.2002 and A-1, A-3, A-4, A-5 & A-6 had refused to participate in judicial TIP as is evident from proceedings dated 08.07.2002. A-7 also declined to participate in TIP on 29.08.2002. Naturally, since accused had been shown to bank officials two-three days after the dacoity, purpose of holding judicial TIP stood frustrated. It has been observed as under by our own High Court in Govt. Of NCT of Delhi vs Rama Shankar Pandey & Another MANU/DE/3285/2010:-
"Though the evidence of Test Identification Parade only has corroborative value as substantive piece of evidence is the identification in the Court, however, where suspect is already shown to the witnesses before the Test Identification Parade, his identification in the Court becomes valueless and the accused cannot be convicted on the basis of such identification. The Supreme Court in 1998 SCC (Crl.) 1276, Shaikh Umar Ahmed Shaikh and Anr v. State of Maharashtra on account of strong probability in that case that the suspects were shown to the witnesses had held that their identification FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 23 of 41 in the Court by the witnesses was meaningless. The Supreme Court had further held that the statement of witnesses it the Court identifying the accused in the Court lost all its value and could not be made the basis for recording the conviction against the accused and had set aside the convictions which were passed on such unreliable evidence. In this case on strong probability that the suspect were shown their subsequent identification was held to be valueless. The Supreme Court in another case, (1998) SCC (Cri.) 201, Ganpat Singh and Anr v. State of Rajasthan had also held that where the accused were shown to the sole witnesses in the police station who later identified them in the Test Identification Parade, the evidence of such persons in the Court after considerable time was held to be nor reliable and could not be the basis for conviction."
6.45 In State of Andhra Pradesh Vs. Sayyaad Siraj Mohammed and Ors. (2009) 13 SCC 417, while acquitting the accused, Apex Court observed that when witness was taken to Jail where the accused persons were shown to him before the Test Identification Parade, there was really no purpose in holding test identification parade.
6.46 In view of the aforesaid peculiar backdrop of the case, keeping in mind the fact that four other bank officials have not been able to identify even a single accused and two bank officials i.e. PW1 Sh. Sanjeev Bansal and PW18 Ms. Kamlesh Gupta have not stuck to their earliest version regarding identification and role of the accused and the possibility of accused being shown to them before judicial TIP, I will not be in a position to give any real weightage to the identification which seems doubtful and hesitant and certainly not of impeccable and pristine quality.
FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 24 of 41Identification of robbed money 7.0 Even as regards recovery of looted money, I have my own reservation. It does not click to me that all the accused, who are alleged to be clever and deft dacoits, would be fool enough to carry the looted money with the bank slips over the bundles of the notes so as to get entrapped easily. Any such dacoit would have surely taken basic precaution to at least remove or destroy the slips. Incident had taken place on 18.06.2002 and I am not ready to believe that starting from 27.06.2002 till 30.08.2002, accused persons would keep the notes intact with slips of bank thereon and thereby inviting police to catch them.
7.1 Moreover, testimony of PW1 Sanjeev Bansal is quite unusual with respect to the case property. In his earliest testimony recorded before the court on 01.03.2004, when the bundles of the notes were shown to him, he claimed that these notes were not the same which were looted from the bank. He though stated that slips were of the bank but as regards notes, he was found very specific and claimed that these notes were not the same which had been looted from the bank. Though in his later deposition, he came up with evasive answer and made some amends by claiming that he could not say anything about the notes, fact remains that his earliest recorded version creates diffidence. After all, he was cashier and from his cabin only, the cash had been looted away. Therefore, he was in the best position to say about the denomination of the looted amount as well as about the slips appearing on such bundles but for totally unexplained reasons, when the notes were shown to him, he claimed that these were not the same notes.
7.2 I can understand that there will not be any real identification mark whereby anyone can identify the notes unless the notes are identified with the help of serial numbers.
7.3 Had Sanjeev Bansal claimed that he was in no position to say about the FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 25 of 41 notes with any degree of certainty, things would have been different? However, he, very specifically in his earliest version, deposed that these notes were not the same notes.
7.4 In his further examination, he claimed that the bundles, which were looted away, might be in the denomination of rupee 50, rupee 100 and rupee 500. He could not say as to how many bundles were of denomination of rupee 100. Interestingly, when the notes were shown to PW18 Ms. Kamlesh Gupta, she identified the bundles of notes though it is little bit puzzling as to on what basis she was able to identify the notes. Curiously, in her cross-examination, she claimed that she had identified bundles of notes as robbed property was bearing the initials of cashier who had handled the cash and thus she identified the signature of cashier PW1 Sh. Sanjeev Bansal on slips/bundles.
7.5 PW1 Sh. Sanjeev Bansal was the most crucial witness on said aspect but in his entire deposition, he nowhere claimed that these bundles or slips were bearing his one initials.
7.6 Rather as already noticed above, he even out-rightly denied these notes to be part of looted money.
Arrest of accused & Recovery of Robbed Amount 8.0 Things do not stop here. The manner in which accused persons were apprehended and the notes were recovered is also under cloud.
8.1 As per the specific case set up by the police, first of all, A-1 Mohd. Mumtaz and A-6 Shabir were apprehended on 27.06.2002. Thereafter, accused Umardeen (A-3), accused Shakeel (A-5) and accused Shakir (A-4) were arrested on 28.06.2002. Accused Mohd. Javed (A-2) was arrested on 29.06.2002 along with receiver-accused i.e. accused Samir @ Arif (A-8) and finally accused Sajid @ Bhura FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 26 of 41 (A-7) was arrested on 30.08.2002. Let me now briefly take note of the vital aspects regarding their apprehension.
8.2 As regards arrest of A-1 & A-6, reference needs to be made to the testimony of PW10 HC Naresh Kumar, PW11 SI Naresh Kumar, PW12 Ct. Jaswant Singh, PW15 ASI Vikram (IO of case FIR No. 252/02), PW22 SI Bhawan Singh (IO of case FIR No. 253/02), PW28 HC Ashok Kumar, PW31 HC Mukesh Kumar, PW43 SI Dinesh Pal and PW48 SI Satwinder Rana.
8.3 It is quite evident that as per the case of prosecution, various police officials of PS Adarsh Nagar were on routine patrolling on 27.06.2002 when they received information through SHO PS Mangol Puri and SHO PS Adarsh Nagar that one Maruti Zen car bearing DL-2CJ-9143 was stationed near Akash Cinema in which two dacoits were present who were involved in the dacoity which had taken place at Vaish Cooperative Bank, Azad Pur approximately 9-10 days earlier. The most interesting aspect is the presence of SI Satwinder Rana when such revelation was made by said two SHOs.
8.4 Undeniably, SI Satwinder Rana was the one who had been entrusted with the investigation of dacoity incident. After the dacoity had taken place on 18.06.2002, he was the one who had reached the bank and had recorded statement of PW1 Sanjeev Bansal. He prepared the site plan as well. Naturally, since the case the was a serious one, the moment he got to learn about any clue regarding dacoits, he must have got alerted and would have associated himself as well with the investigation. Naturally, he must be also equally, if not more, interested in cracking the case. Source of information was looking very dependable i.e. the two SHOs. Their sheer presence was also enough to ensure that he would not dare to leave the patrolling party in the middle for no reason whatsoever. He would have, like any other responsible police officer, chosen to apprehend such dacoits.
8.5 However, testimony of PW48 SI Satwinder Rana is very unusual on this FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 27 of 41 aspect. He deposed that A-1 & A-6 had been arrested in other cases and made disclosure statements regarding their involvement in the present case and thereafter, he arrested them. According to him, he learnt from the concerned IOs i.e. SI Naresh Kumar and SI Bhawan Singh at the PS only that A-1 & A-6 had been arrested and that they had made disclosure statements about the bank dacoity case. According to him, when A-1 & A-6 were apprehended for the first time, he was not present there at all.
8.6 This is hardly digestible. As per the testimony of said material witnesses of patrolling team, SI Satwinder Rana was very much present when the information was received. None of them whispered that SI Satwinder Rana had left the spot. It also does not seem believable that SI Satwinder Rana, despite hearing news about the dacoits wanted in his own case, would merrily keep himself away and aloof from the investigation or would leave the scene altogether. Thus, there is something more than what meets the eyes.
8.7 If prosecution case is to be believed then when such Maruti Zen car was stopped near Akash Cinema, A-1 & A-6 were found sitting therein. They both were apprehended and button-actuated knife was recovered from the possession of A-1 and one loaded country-made revolver was found in possession of A-6. Parallel investigation related to possession of said knife and firearm was carried out and when Maruti Zen was further searched, a sum of Rs. 30,000/- was recovered at the instance of A-6 which had been kept beneath the driver seat and another sum of Rs. 20,000/- was recovered at the instance of A-1 from the front dash-board of Maruti Zen car.
8.8 Need I reiterate that the information was regarding apprehension of dacoits? Recovery of alleged arms was not going to be enough to show their complicity in the bank dacoity case and the recovery of looted money alone would have served some purpose. If prosecution case is to be believed then the police officials, who were members of the raiding team and who were acting on a very FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 28 of 41 specific tipoff, felt happy and satisfied with the recovery of arms alone. They sat in a relaxed manner and did not do anything further. They did not even think of searching the car. Rukkas were prepared and were dispatched and the recovery of looted money took place only when the main IOs of said two cases had reached the spot later on. These two IOs are PW15 ASI Vikram Singh and PW22 SI Bhawan Singh.
8.9 PW15 ASI Vikram Singh has deposed that he was directed to investigate matter related to Arms Act against A-1 and he reached Akash Cinema, Azad Pur where several police officials were present and two accused persons were already in their custody and he claimed that knife and country-made pistol and cartridges had already been recovered and he carried out investigation of case FIR No. 252/02 and interrogated accused and arrested him and thereafter accused made disclosure statement and disclosed that he could get recovered a sum of Rs. 20,000/- and then at the instance of A-1, a sum of Rs. 20,000/- were recovered from the dash-board of the car. He also deposed that his co-accused A-6 had also got recovered Rs. 30,000/- in the presence of SI Bhawan Singh. PW22 SI Bhawan Singh has also deposed about recovery of Rs. 30,000/- from beneath the driver seat of Zen car. I am not ready to buy police story. It is not possible that such raiding team would not even try to interrogate these two accused in the meanwhile. The search and recovery should have been spot on.
8.10 Moreover, there is complete dissonance amongst the testimony of all these crucial spot witnesses.
8.11 They do not know about the exact time when the accused were arrested. There is complete chaos even as regards the exact place of recovery. It is not clear whether recovery was from dash-board or dickey or from somewhere else. It is not clear whether notes were lying loose or wrapped in any polythene or bag. Even with respect to arms, there is not enough of the clarity. It is also not clear as to where Maruti Zen was actually parked - whether in the parking lot of Akash Cinema FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 29 of 41 or outside. It is not clear whether any private secret informer was also there or not.
8.12 Let me note few relevant aspects in this regard as culled out from the evidence on record.
8.13 PW10 HC Naresh Kumar has categorically claimed that when they had left the police station, DD entry had been made by SI Satwinder Rana. It is, therefore, very surprising as to why SI Satwinder Rana perished from the scene altogether. As per PW11 SI Naresh Kumar, he had no knowledge as to who was the maker of such DD entry. He does not remember as to at what time they had left the PS for patrolling. He does not know whether car was inside the compound of Akash Cinema or outside. So much so, he does not know as to from whose possession, the katta had been recovered. He deposed that he learnt about the recovery of katta but could not say from whom. According to him, Maruti Zen car had been searched but he does not remember as to how many police officials had carried out such search. According to him, first such search had taken place 2½ & 3 hours after accused were overpowered. PW12 Ct. Jaswant Singh has rather deposed that currency notes were recovered within 5-10 minutes of the arrest of A-6.
8.14 According to PW11 SI Naresh Kumar, cash had been recovered from the dickey of Maruti Zen car whereas according to the case of prosecution, recovery was from front dash-board. He does not remember whether amount of Rs. 30,000/, recovered from beneath the seat of car, was wrapped in newspaper or not. PW12 Ct. Jaswant Singh also does not know as to which document was prepared by the IO. He did claim that a sum of Rs. 30,000/- were recovered from beneath the seat of the car but, surprisingly, he does not know whether it was recovered from beneath the front-seat or rear-seat. He also does not remember whether the amount was contained or wrapped in polythene or in a bag. According to his subsequent deposition dated 22.07.2011, no cash was recovered either form the dickey or from the dash board of the car.
FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 30 of 418.15 If PW15 ASI Vikram is to be believed then a sum of Rs. 20,000/- were recovered from dash-board which had been kept in a polythene. However, no such polythene had seen the light of the day. Nobody knows as to whether any such polythene was ever seized or not. Surprisingly, PW22 SI Bhawan Singh, who was IO of case FIR No. 253/02, does not remember whether the sum of Rs. 30,000/- was lying as it is or had been recovered while wrapped in anything. He also does not know whether dash board or dickey of the Maruti Zen had been opened or not. His testimony is conspicuously silent about recovery of any other cash amount from the Zen car except for the amount of Rs. 30,000/-. PW28 HC Ashok Kumar does not know whether firearm was loaded or not. Interestingly, different police officials described such firearm differently and, therefore, it is not clear whether firearm was pistol or country made pistol or revolver.
8.16 As per PW43 SI Dinesh Pal, SI Satwinder Rana was all along with them when they left PS for patrolling. According to him, there was one secret informer also and such secret informer had pointed out towards the car and then left from there immediately. No such fact has been deposed by most of the other police officials and, therefore, it is not clear whether there was any private secret informer with the police party or not. PW43 SI Dinesh Pal has not said anything related to recovery of cash amount though fact remains that he also remained present at the spot and even Maruti Zen car was seized in his presence. Thus, his testimony is conspicuously silent about recovery of cash from Maruti Zen car which also creates doubt with respect to the case of prosecution. As already noticed above, PW48 SI Satwinder Rana has out-rightly rejected that he had witnessed any such event related to apprehension of A-1 & A-6 or for that matter, recovery of any amount at their instance from Zen car. According to him, he learnt about these recoveries only later on at the PS. 8.17 There is no independent recovery witness. Police was having all the time in the world to have associated public persons. After all, it was not a case of FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 31 of 41 chance recovery. Police was allegedly having a tipoff on the basis of which it had apprehended the accused persons. No attempt was made to join any employee of Akash Cinema in the investigation. No shopkeeper of said area was either requested or joined. Police has churned out a stereotyped version that public persons were asked to join but they declined and left without revealing their names and addresses. It was a case of serious magnitude and, therefore, police was expected to make sincere efforts to bring enough of transparency in its case.
8.18 A-3, A-4 & A-5 had been arrested same night at instance of A-1 & A-6.
8.19 Let me now see some vital aspects related to their arrest and recovery.
8.20 Reference in this regard needs to be made to the testimony of PW11 SI Naresh Kumar, PW26 HC Amar Pal, PW43 SI Dinesh Pal and PW48 SI Satwinder Rana.
8.21 As per PW11 SI Naresh Kumar, same night when they were under the control and supervision of SI Satwinder Rana, they reached New Seelam Pur Bus Stand at the instance of A-1 & A-6 in order to apprehend remaining accused persons. One TSR was found stationed at a bus stand. It was pointed out by the aforesaid two accused persons. Three persons were found in said TSR and they were nabbed. They revealed their names as Umardeen, Shakeel and Shakir. They were interrogated and arrested. PW11 SI Naresh Kumar has proved relevant memos in this regard.
8.22 Thereafter, all said three accused persons had led the police to their respective houses and got the recovery effected. PW11 SI Naresh Kumar has deposed that accused Umardeen led them to his house and got recovered a sum of Rs. 30,000/- from one iron almirah. Accused Shakeel got recovered same amount from his first floor house and accused Shakir also got recovered a sum of Rs. 20,000/- from the almirah/box lying on second floor of his house. According to him, FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 32 of 41 all the recovered notes were belonging to the Vaish Bank and stamp was appearing on those. He also proved seizure memos of all such recovered notes and also identified the wads when shown to him during the trial. According to him, they had left PS at about 1.30 AM for Seelam Pur area. They reached there in one official gypsy and one private vehicle. According to him, TSR was pointed out by the accused persons. However, he was very specific in cross-examination and claimed that when they reached said spot, all the three accused persons were in fact standing on the road and were outside the TSR. Nobody was seen sitting inside the TSR. He also claimed that no public person was asked to join the proceedings. According to him, they had gone to the residences of the accused persons but he does not remember the address of any such accused. He also does not remember the sequence of visit of house of such three accused persons. He does not know the number of storeys in their respective houses. He does not know number of rooms in such houses. According to him, some persons had come out from their houses on noticing the police party and they even talked to IO but he was not aware as to what was the conversation about. Thus, he has not been able to give complete details related to recovery. He should have also clearly mentioned the addresses of said three accused to lend complete reassurance about search and seizure. There is no public witness either despite the fact that public persons had collected at the spot.
8.23 PW26 HC Amar Pal has claimed that when they reached New Seelam Pur Bus Stand, they saw one TSR No. DL-1G-9139 in which three boys were sitting. Thus, according to him, all the three accused persons were sitting in TSR and not standing out on the road as claimed by PW11 SI Naresh Kumar. PW26 HC Amar Pal has also deposed about preparation of various memos and also regarding the fact that all those accused persons took the police party to their respective houses where recovery had been effected. Fact remains that he also admitted in cross- examination that there was overwriting in the arrest memos of all such accused persons. He also does not remember the number of floors in the house of accused Shakeel. He also does not know the number of rooms situated in his house. Same FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 33 of 41 is his reply regarding other two accused.
8.24 PW43 Dinesh Pal has claimed that after the arrest of A-1 A-6, they were interrogated by SI Satwinder Rana at PS and their disclosure statements were recorded and thereafter both said accused took them to New Seelam Pur Bus Stand. He deposed that ASI Vikram Singh also met them and then at the bus stand, they saw one TSR No. DL1RG-9132 in which all such three accused persons were sitting and they were apprehended at the pointing out of A-1 & A-6. He has also deposed about the fact that all the three accused were arrested and they took them to their respective houses and recovery was effected from their such houses.
8.25 Police party must have left the PS to effect recovery at such dead hour of the night after making some entry in Daily Diary. Fact, however, remains that no DD entry has been placed on record. PW43 SI Dinesh Pal has also pleaded his ignorance and does not know as to who had made any such departure entry. However, he felt that such entry might have been made by SI Satwinder Rana. Though, he claimed that three persons were found sitting in the TST but he failed to point out as to which accused was sitting on the driver seat and which on the rear. When asked about number of storeys of the house of accused persons, he could not give any satisfactory answer. He has also deposed that he did not even know whether any neighbour was called by the IO to join the investigation. According to him, writing work had been conducted inside the vehicle in which they had come.
8.26 PW48 SI Satwinder Rana deposed that all such three accused persons, namely, Shakeel, Umardeen and Shakir were sitting in TSR No. DL1RG9132 and he arrested them and recorded their disclosure statements. Such TSR was also separately taken into possession and thereafter they went to the house of accused Shakeel situated at E-1/3, New Seelam Pur and then to the house of accused Umardeen situated in the house of Haji Rafiq near Chand Tent House, Bhagirathi Vihar, Karawal Nagar and then to H. No. Z-2/344, Kabutar Market, Welcome, Seelam Pur, Delhi of accused Shakir.
FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 34 of 418.27 Only confusing aspect remains time of apprehension of all such three accused persons i.e. A-3, A-4 & A-5.
8.28 As per the testimony discussed above and even as per the case of prosecution, these three accused persons were arrested at late hour of night around 2.00 AM. PW43 SI Dinesh Pal has very categorically claimed that they had left the PS at about 1.00 AM.
8.29 However, IO-SI Satwinder Rana has created a big commotion by claiming that they had reached Seelam Pur Bus Stand at about 9.00/10.00 PM when they had seen accused persons sitting in an auto. He also does not remember as to which accused was sitting on the driving seat and which on the back seat. His testimony also does not reveal as to whether any effort was made to join any independent witness or not. I would not have given much credence and importance to such aspect but keeping in mind the contradictions appearing on record as well as the serious magnitude of the case, it was expected that investigating agency had made genuine and sincere efforts to associate public persons before apprehending the accused persons. After all, they were acting on the basis of information revealed by A-1 & A-6 and, therefore, they had all the time in the world to make request to independent witnesses, at least, when they had reached the houses of said three accused persons. No necessity was felt of calling any neighbour. Thus, there was flagrant violation of Section 100 (4) Cr.P.C.
8.30 I have already noticed above that as per PW43 SI Dinesh Pal, ASI Vikram Singh was also joined in the investigation but when I carefully went through testimony of PW15 ASI Vikram Singh, it made clear that he was never associated with any such investigation related to arrest of A-3, A-4 & A-5 or for that matter recovery from their respective houses. This also creates a doubt regarding the authenticity of the case of prosecution.
FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 35 of 418.31 As per the prosecution story, thereafter, police had apprehended A-2 Mohd. Javed and A-8 Samir @ Arif. Reference in this regard be made to the testimony of PW10 HC Naresh Kumar, PW24 HC Raj Pal and PW47 SI Satwinder Rana.
8.32 PW10 HC Naresh Kumar has deposed that names of accused Mohd. Javed and Samir @ Arif were disclosed by A-1 & A-6 and they started searching for them here and there on 29.06.2002 at about 12.00 noon. Thereafter, they reached Chauhan Bangar Pulia, Seelam Pur in search of said two accused persons. Importantly, they reached there at the instance of secret informer and then said two accused persons were apprehended. Accused Mohd. Javed was found in possession of one country-made pistol for which case under Arms Act was registered with PS Seelam Pur. Accused Samir @ Arif was also found in possession of robbed amount of Rs. 10,000/- which was seized vide memo Ex. PW10/G. I have seen his cross-examination also. According to him, on 29.06.2002 SI Satwinder Rana had received secret information in his presence. Such information was not reduced in writing anywhere. If he is to be believed then such information was received between 9.00 AM & 10.00 AM. PW24 HC Raj Pal has also claimed that secret informer had informed SI Satwinder Rana and then they had reached at Bangar Walia Pulia at about 12.00 noon where both the said accused came and secret informer pointed out towards them and then both such accused were arrested. Thus, it becomes evident that secret informer was present with the police party all along. Since accused persons had been nabbed at the pointing out of informer, police should have cited the secret informer as its witness. It becomes evident that such witness was not shy in coming in open. Undoubtedly, the police is not obliged to disclose the identity and credentials of a secret informer but when such secret informer chooses to remain with the police party till the end, it becomes the bounden duty of the prosecution to rather cite him as a witness. Reference in this regard be made to Peeraswami V. State NCT of Delhi, (Delhi) 2007(4) R.C.R. (Criminal) 339.
FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 36 of 418.33 Police had also visited the house of accused Javed and, again, no necessity was felt of joining independent witnesses. PW48 SI Satwinder Rana did depose about the manner of arrest of accused Mohd. Javed and Samir @ Arif and the recovery thereof. He claimed that he had received secret information but also admitted that no such information was ever reduced in writing by him. He claimed to have made efforts to join public witnesses in investigation but fact remains that his such version does not inspire any confidence. He even did not bother to record names and addresses of such public persons so that if required, such vital aspect could have been cross-checked by the Court.
8.34 As regards arrest of A-7 Samir @ Arif, reference be made to the testimony of PW14 HC Balwan Singh and PW48 SI Satwinder Rana. PW14 HC Balwan Singh has claimed that accused Sajid led them to his house and got recovered a sum of Rs. 20,000/- from the almirah of one of his house. Such notes were having seal of Vaish Bank. Such notes were counted and then a pullanda was prepared which was sealed with the seal of SR. He also identified the case property during trial. PW48 SI Satwinder Rana has also deposed that after seeking permission of the Court to arrest Sajid @ Bhura in the instant case, he arrested him in the present matter and then took police remand of the accused who led them to his house situated at Badka Road, Baghpat, UP.
8.35 Police had left the jurisdiction of Delhi and, therefore, some DD Entry should have been placed on record in order to show that police team had left for UP. It is also not made clear by the prosecution as to why no assistance of local police was taken. There is nothing on record which may show that the efforts were made to join independent witnesses or neighbours of A-7. He also does not remember as to under the jurisdiction of which particular police station house of A-7 falls. He claimed that he had not gone to local police station to call them and did not join such local police officials in the investigation. He also failed to assign any reason in this regard.
FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 37 of 418.36 My foregoing discussion would clearly indicate that police team did not carry out investigation in the desired manner. They did not bother to join any independent public persons. Statutory desirability in the matter of such type of raids is that there should be support from unbiased and neutral corner. Association of an independent witness imparts much more authenticity and credit worthiness to such proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the action of police. indubitably, if the evidence of the official witnesses is found to be credible and coherent, same can alone prove to be foundation for conviction and normally, prosecution case cannot be thrown away straightaway merely because chief plank of evidence is that of official witnesses. However, it puts the court on guard and the testimony of such official witnesses is, in such a situation, liable to be scrutinized with extra caution and simultaneously, prosecution has to offer satisfactory explanation for not associating independent witnesses more so when they are available right at the elbow. In such a situation, courts are fully justified in finding out the reasons as to why no such person came forward and whether the investigating agency did its best to persuade independent persons. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of violation of such safeguards which undermine respect of law. Reference be made to judgment cited as Pawan Kumar Vs. The Delhi Administration, 1989 CRLJ 127 DELHI . Reference in this regard be also made to two judgments of our own Hon'ble High Court cited as RATTAN LAL VS. STATE 32 (1987) DLT DELHI 1 and MOHD. JAVED VS. STATE I (2000) CCR 402 DELHI. In the case in hand, there is no explanation much less a cogent one which may go on to show that police had made sincere efforts to join independent witnesses. On the contrary, the picture which emerges out is totally contrary and it is quite manifest that police did not deliberately make any attempt or endeavour in this regard.
8.37 Keeping in mind said omission on the part of investigating agency as well as taking into account the various contradictions appearing on record, I am not FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 38 of 41 inclined to give requisite weightage to the recovery in question.
CONCLUSION 9.0 I have carefully perused the stand taken by accused persons in their respective statements u/s 313 Cr.P.C. They all have pleaded false implication. They claimed that they were shown to the witnesses during the investigation. They all have also denied any recovery of bank notes from their respective possession. I have also seen the testimony of all the defence witnesses and since prosecution has not been able to prove its case beyond shadow of doubt, I need not scrutinize and evaluate the testimony of defence witnesses any deeper.
9.1 I have also taken note of various investigational aspects. PW33 Mohd. Nasir was the owner of Maruti Zen car in which A1 and A6 were found sitting when they were apprehended. Undoubtedly, he happens to be relative of accused Shabir but fact remains that he has not supported the case of prosecution as he claimed that he was made to reply at the instance of IO. Thus, he has tried to disown his own reply by claiming that he had given the reply as per the directions and at the instance of IO. This also creates doubt in the case of prosecution.
9.2 To sum-up, prosecution has not been able to prove its case to the hilt. The shaky identification, that too by only two bank officials, does not inspire much confidence. They identified few robbers whom they were in no position to identify at all. There is also a possibility that witnesses and accused were brought face-to-face before holding the judicial TIP. The remaining bank officials have not supported the prosecution case as they have failed to identify any of the accused.
9.3 There is also one more curious and unusual aspect which I cannot resist commenting upon. The alleged kingpin Taj Mohd. was not identified by any bank official in judicial TIP. In such TIP, Taj Mohd had chosen UTP/inmates for standing in a queue. As per defence counsel, Taj had also chosen A-4 Mohd. Shakir as well as FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 39 of 41 one such person. Interestingly, none of the bank official identified him either. Though concerned Jail Superintendent should not have allowed any co-accused to become part of such process nonetheless, such bizarre fact demonstrates the poor observation-power and also the inability of bank officials to identify such dacoits.
9.4 The contradictions and omissions appearing on record are galore and create a doubt with respect to the alleged recovery. PW1 Sanjeev Bansal, who was the cashier of the bank, has not whispered even a single word regarding his own initials on the slips of such notes and has even gone to the extent of claiming that notes allegedly recovered from the accused were not those which had been looted from the bank.
9.5 No effort was made to join independent witnesses despite the fact that police was all along acting at a specific tip-off and, therefore, the testimony of police officials alone does not serve the requisite purpose.
9.6 I am, therefore, inclined to grant benefit of doubt to all the accused. They all are acquitted of all the charges levelled against them. All the three cases stand disposed of accordingly. Signed copy of judgment be placed in dacoity case and attested copy thereof be put in each of the connected matters. Superdarinama stands cancelled.
9.7 Before parting, I would hasten to supplement that the manner in which various documents were prepared and statements were recorded leaves much to be desired. Quite evidently, names of some accused were having striking similarity. If names are not mentioned in legible handwriting, one can easily get confused in making out as to which accused is being referred to - whether SHAKIR or Shakeel or SHABIR. Be those are mentioned in Hindi or in English. The poor handwriting had made the job of the court very intricate. It is high time that, taking note of a very recent order of our own High Court passed in Criminal Appeal no. 375/2016 Rajender @ Kallu Vs. State, Delhi Police take steps to prepare typed copies of all FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 40 of 41 such handwritten documents to obviate any confusion and difficulty of such kind.
9.8 File be consigned to Record Room after all the accused furnish personal bond and surety bond u/s 437A Cr.P.C. in a sum of Rs. 20,000/- each.
Announced in the open Court
On this 8th day of October 2016 (MANOJ JAIN)
Addl. Sessions Judge (FTC)
North-West District: Rohini: Delhi
Digitally
signed by
MANOJ JAIN
MANOJ Date:
JAIN 2016.10.08
11:09:58
+0530
FIR No. 237/02 PS Adarsh Nagar (State Vs. Md. Mumtaz & Ors.) Page 41 of 41