Delhi District Court
State vs . (1) Chandan @ Babar on 9 December, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NOTHWEST): ROHINI COURTS: DELHI
Session Case No. 123/2013
Unique Case ID No.: 02404R0168572010
State Vs. (1) Chandan @ Babar
S/o Suresh Chand
R/o Jhuggi No. N36,
New Seema Puri, Road No.64,
Delhi
(Convicted)
(2) Karan @ Deva
S/o Ram Singh
R/o Gali No. 13, House No. 15,
Jwala Nagar East, Delhi
(Convicted)
(3) Akash
S/o Sohan Lal
R/o B782, Gagan Vihar,
Near Chamunda Mandir,
Bhopara, Sahibabad, Ghaziabad,
Uttar Pradesh
(Convicted)
(4) Afzal
S/o Umar
R/o M227, Gali No.8,
Sunder Nagri, Delhi
(Convicted)
St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 1 of 106
(5) Nasir
S/o Ali Hassan
R/o Rali No. 10, Near Yadav
Dairy, Gagan Vihar Bhopara,
Sahibabad, Ghaziabad,
Uttar Pradesh
(Acquitted)
(6) Mukesh
S/o Ram Babu
R/o E138, Vijay Vihar,
Sector4, Rohini, Delhi
(Convicted)
FIR No.: 62/2010
Police Station: Adarsh Nagar
Under Section: 365/395/397/412/120B IPC
Date of committal to session court: 10.9.2010
Date on which orders were reserved: 8.11.2013
Date on which judgment pronounced:22.11.2013
JUDGMENT:
(1) As per the allegations, on 28.2.2010 between 10:00 AM to 4:00 AM at Azadpur Flyover, Road No. 51, Azadpur, Delhi all the accused namely Chandan @ Babar, Karan @ Deva, Akash, Afzal, Nazir and Mukesh in furtherance of their common intention abducted the victim Prashant Pandey and wrongly confined him in a Maruti Car St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 2 of 106 and robbed him of his mobile phone, laptop and withdrew Rs.20,000/ by using his ATM Card. Further, it has been alleged that the accused Karan @ Deva dishonestly retained the Laptop robbed from the complainant Prashant Pandey in a dacoity. It has also been alleged that the accused Chandan @ Babar was found in possession of a countrymade pistol without licence or permit.
BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 14.3.2010 one Prashant Pandey came to the Police Station Adarsh Nagar and alleged that a robbery had taken place with him and his laptop, two mobile phones were robbed by the assailants after kidnapping him and also money was taken out through his ATM Cards. Prashant Pandey also informed SI Kuldeep Singh that on the intervening night of 2728.2.2010 he reached at Karnal bypass Delhi at about 12:30 or 12:45 AM and hired one TSR No. 8224 for going to West Patel Nagar and when the TSR reached at Adarsh Nagar flyover at about 1:15 AM a Maruti car came from behind and stopped in front of TSR blocking the way of TSR and three - four boys got down from the car and one of them pointed a katta/ pistol on him. According to Prashant Pandey he was taken out from the TSR and the TSR driver was also beaten by those persons after which he was made to sit in the car and his laptop make HCL P38 and his purse were snatched by occupants of the car St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 3 of 106 after. He further informed the police that there were total five persons besides him in the car and the assailants also took his mobile phone make NOKIA and MOTOROLA, ATM Card of HDFC bank and threatened him to disclose the code after which they assailants withdrew Rs.20,000/ from his ATM card and thereafter pushed him out of the car and fled away in the car. According to Prashant Pandey, he reached Police Station Usmanpur where he was told that case has to be registered in Police Station Adarsh Nagar and the police took him to Police Station Adarsh Nagar and dropped him outside the Police Station of Adarsh Nagar, but since he was in a hurry and had to reach at his house due to Holi festival, therefore he did not enter Police Station Adarsh Nagar and went home. It was after his return to Delhi that on the basis of the statement of Prashant Pandey the present FIR was registered and investigations commenced. (3) During investigations the statement of TSR Driver namely Bhagirath Singh was recorded. On 15.2.2010 pursuant to a secret information the accused Chandan, Karan @ Deva and Akash were apprehended from Gagan Cinema near Sunder Nagri. From the personal search of accused Chandan one country made pistol having one live cartridge was recovered which were taken into possession.
The accused Karan @ Deva was having a jute bag which was containing a laptop which the accused Karan @ Deva disclosed to be belonging to the victim of this case, after which the said laptop was St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 4 of 106 seized. From the possession of accused Akash, gold jewellery and one mobile phone make NOKIA 7210 C was recovered. All the three accused were thereafter interrogated and they made their disclosure statements wherein they disclosed having committed the present incident. The accused Chandan, Karan @ Deva and Akash were arrested and pursuant to their disclosure statement, the accused Nasir was arrested from near Harsh Vihar Police Booth. During interrogation Nasir also disclosed his involvement in the present case after which Nasir was arrested in this case. The accused Nasir led the police party to DLF Parking, at Bhopra Border, Sahibabad, UP from where he got recovered one motorcycle bearing fake number DL 3S BG 8719 on the back side and on the front side DL 3S B 8719 and on checking the engine and chasis number of the motorcycle, it was found that the original number of the motor cycle was DL 3S BG 6715 after which the said motorcycle was seized. On the next day 16.2.2010 Nasir got recovered the key of the stolen car Alto used in this incident was from the house of Bhagwan Dass at Rasgulle wali Gali, Gagan Vihar, Bhopra Border, Delhi and also got recovered the Maruti Alto Car bearing no. DL 1C L 2884 from in front of H.No. F2/65, Sunder Nagri, which car and its keys were thereafter seized. Further, at the instance of the accused Karan one laptop of Compaq was recovered from the house number 115, Gali No.3, Jwala Nagar, Shahdara, Delhi. On 22.03.2010 during Test Identification Parade the victim identified St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 5 of 106 the accused Akash and Karan @ Deva and on 7.4.2010 the TSR Driver Bhagirath identified the accused Chandan, Karan @ Deva and Akash in Judicial Test Identification Parade. However, both the public witnesses could not identify the accused Nasir in Judicial Test Identification Parade. Thereafter on 12.7.2010 the accused Mukesh and Afzal were arrested and in the Judicial Test Identification Parade both the accused persons were identified by the victim. After the completion of investigations the charge sheet was filed against the accused Chandan @ Babar, Karan @ Deva, Akash, Afzal, Mukesh and Nasir.
CHARGE:
(4) Charges under Sections 365, 395 & 397 Indian Penal Code were settled against the accused Chandan @ Babbar, Akash and Afzal to which they pleaded not guilty and claimed trial. Further, charge under Section 25/54/59 of Arms Act was also settled against the accused Chandan to which he pleaded not guilty and claimed trial. Charges under Section 365, 395 and 412 Indian Penal Code were settled against the accused Karan @ Deva to which he pleaded not guilty and claim trial. Also, charges under Section 365 and 395 Indian Penal Code were settled against the accused Nasir and Mukesh to which they pleaded not guilty and claimed trial. St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 6 of 106 (5) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
Prosecution witnesses:
Sr. No. PW No. Name of the witness Details of the witness
1. PW 1 WHC Prafulla Police witness - Duty Officer
2. PW 2 Prashant Complainant / victim
3. PW 3 Ct. Sumit Police witness who had taken the exhibits to FSL
4. PW4 HC Laxmi Narain Police witness MHCM
5. PW 5 Dr. Dharmender Public witness - owner of stolen car bearing No. DL1CL2884
6. PW 6 Naubat Singh Public witness - attendant of parking of Nagar Nigam, DLF, Ghaziabad
7. PW 7 Bhagirtath Lal Public witness TSR Driver
8. PW 8 HC Pritam Singh Police witness who had joined investigations with IO
9. PW 9 Rakesh Nanda Public witness - previous owner of TSR No. DL1RL8224
10. PW 10 Jora Singh Public witness - owner of TSR No. DL1RL8224
11. PW 11 Insp. Brij Pal Singh Police witness who had joined investigations with IO
12. PW 12 Ct. Tahul Tyagi Police witness who had joined investigations with IO
13. PW 13 SI Kuldeep Singh Investigating Officer St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 7 of 106 List of documents relied upon:
Sr. Exhibit No. Details of documents Proved by
No.
1. PW 1/A Copy of FIR W/HC Prafulla
2. PW 1/B Endorsement on Rukka
3. PW 2/A Statement of Prashant Pandey Prashant Pandey
4. PW 2/B Seizure memo of receipt of laptop
5. PW 2/C Receipt of laptop
6. PW 4/A Copy of entry No. 3566 in Register No. 19 HC Laxmi
7. PW 4/B Copy of RC No. 53/21/10 Narain
8. PW 5/A Superdarinama Dr. Dharmender
9. PW 5/B to Photographs of the car
PW5/D
10. PW 6/A Seizure Memo of slip pad Naubat Singh
11. PW 6/B Parking Slip
12. PW 7/A TIP of accused Karan @ Deva Bhagirath Lal
13. PW 7/B TIP of accused Chandan @ Babar
14. PW 7/C TIP of accused Akash
15. PW 8/A Sketch of pistol and cartridge HC Pritam
16. PW8/B Seizure memo of pistol and cartridge Chand
17. PW8/C Seizure memo of laptop
18. PW8/D Seizure memo of jewellery
19. PW8/E Arrest memo of accused Chandan
20. PW8/F Arrest memo of accused Karan @ Deva
21. PW8/G Arrest memo of accused Akash
22. PW8/H Personal search memo of Chandan
23. PW8/J Personal search memo of Karan @ Deva
24. PW8/K Personal search memo of Akash
25. PW8/L Disclosure statement of Chandan
26. PW8/M Disclosure statement of Karan
St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 8 of 106
27. PW8/N Disclosure statement of Akash
28. PW8/P Arrest memo of accused Nasir
29. PW8/P1 Personal search memo of accused Nasir
30. PW8/Q Disclosure statement of accused Nasir
31. PW8/R Seizure memo of laptop got recovered by
Karan @ Deva from his house
32. PW8/S Seizure memo of key
33. PW8/T Supplementary disclosure of accused
Akash
34. PW8/U Pointing out memo of house of Afzal by
Akash
35. PW8/V Pointing out memo of PNB ATM by
Akash
36. PW8/W Pointing out memo of SBI ATM by Akash
37. PW10/1 Copy of RC of TSR in the name of Jora Jora Singh
Singh
38. PW10/2 Copy of RC of TSR in the name of Rakesh
Nanda
39. PW10/3 TSR
40. PW13/A Rukka SI Kuldeep
41. PW13/B Site plan Singh
42. PW13/C Application to TIP
43. PW13/D TIP proceedings of accused Akash
44. PW13/E TIP proceedings of accused Karan
45. PW13/F TIP proceedings of accused Chandan
46. PW13/G TIP proceedings of accused Nasir
47. PW13/H TIP proceedings of accused Akash by
Bhagirath Lal
48. PW13/I TIP proceedings of accused Chandan by
Bhagirath Lal
49. PW13/J TIP proceedings of accused Karan by
Bhagirath Lal
St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 9 of 106
50. PW13/K Arrest memo of accused Mukesh
51. PW13/L Personal search of accused Mukesh
52. PW13/M Disclosure statement of accused Mukesh
53. PW13/N Arrest memo of accused Afzal
54. PW13/O Personal search of accused Afzal
55. PW13/P Disclosure statement of accused Afzal
56. PW13/Q Application for TIP of accused Mukesh &
Afzal
57. PW13/R & TIP proceedings of accused Mukesh & PW13/S Afzal
58. PW13/T Ballistic Report
59. PW13/U Sanction under Section 39 of Arms Act EVIDENCE:
(6) In order to prove its case the prosecution has examined as many as Thirteen witnesses as under:
Public witnesses/ victim:
(7) PW2 Prashant Panday is the complainant/ victim who has deposed that he was doing job in Karnal in Bajaj Auto Finance and on 27.02.2010 he started from Karnal at night time and reached at Karnal bypass Delhi at about 12:30 or 12:45 AM and hired one TSR No. 8224 for going to West Patel Nagar. According to the witness, when the TSR reached at Adarsh Nagar flyover and it was about 1:15 AM a Maruti car came from behind and stopped in front of TSR blocking the way of TSR and three to four boys got down from the car and one of St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 10 of 106 them pointed a katta/ pistol on him of which the accused Chandan was the person who pointed katta on him; accused Akash was the person who had shown him the knife and accused Mohd. Afzal was the boy who also alighted from the car and came to TSR.
According to the witness, he was taken out from the TSR and the TSR driver was also beaten by those persons. He has testified that thereafter he was made to sit in the car. The witness has further deposed that he was having a laptop make HCL P38 which was taken from him by occupants of the car after which the assailants asked him to take out his purse on which he took out his purse and handed over the same to the occupants of the car but he is cannot identify the person to whom he handed over his purse. He has identified the accused Karan as the person who was sitting in the car when he was forced to sit inside the car. According to him, while he was made to sit in the car on one side of him, Chandan was sitting pointing katta on him and on the other side Aakash was sitting pointing knife on him and one of them snatched the laptop from him. The witness has testified that there were total five persons besides him. He has further deposed that they took his mobile phone make NOKIA and MOTOROLA, ATM Card of HDFC bank and asked him to disclose the code and threatened that in case if he did not disclose the code he would be killed on which he (witness) gave the St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 11 of 106 code to the accused persons. He has also deposed that they took him to Pahar Ganj in the car where two persons were got down and went to ATM of ICICI bank but they did not operate his ATM card from there and then they took him to Daryaganj at the ATM where two accused got down from the car and there also they were not able to withdraw the amount by using his ATM card. According to the witness, thereafter the accused took him to Mojpur in the same car where there they stopped in front of ATM of Punjab Nation Bank and two accused persons got down but as they were not able to operate and thereafter one more accused got down and went to ATM and withdrew Rs. 10,000/ by using his ATM card and then they went to Durgapuri at the ATM of SBI and from there they also withdrew Rs.10,000/ by using his ATM card. He has testified that thereafter they took him to Usman Pur Seema Puri where there was a big chowk and they stopped at red light signal and they threatened him that if he disclosed to anybody he would be killed they returned his purse and pushed him out of the car and fled away in the car. According to the witness, he reached Police Station Usmanpur after asking two or three persons and they told him that case has to be registered in Police Station Adarsh Nagar and they took him to Police Station Adarsh Nagar and they dropped him outside the Police Station of Adarsh Nagar, but since he was in hurry and had to reach at home due to Holi festival, therefore he did not enter Police Station Adarsh Nagar and went to his home. According to the witness, St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 12 of 106 he came to Delhi on 14.03.2010 and went to Police Station Adarsh Nagar and lodged his report vide his statement Ex.PW2/A and he was also called for TIP of accused persons.
(8) The witness has proved that he handed over the receipt of the laptop to the police which was seized by the police vide seizure memo Ex.PW2/B which receipt is Ex.PW2/C and he was told that Laptop was recovered and he identified the Laptop in the TIP. According to him he also got released the Laptop on Superdari and he had pointed out the place of occurrence to the police. (9) Leading questions were put to the witness by the Ld. Addl. PP for the State on the identity of the accused Mukesh during which the Ld. Addl. PP pointed out accused Mukesh to the witness and asked whether he was one of the accused, on which the witness replied in affirmative and stated that he (Mukesh) was one of the accused.
(10) In his cross examination by the Ld. Defence Counsel the witness has deposed that he used to visit Delhi twice or thrice in a month usually on Saturdays and on that day he started from Karnal at about 10 or 10:30 PM. According to the witness, he had seen the TSR number when he hired it from Karnal bypass. He has further deposed that the color of the car was cream or silver. He has explained that Chandan had shown him katta from his left side while sitting in TSR St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 13 of 106 and Akash had shown him knife from his right side. According to him, the accused persons remained at Adarsh Nagar flyover hardly about five minutes when they stopped the TSR and took him away in the car. Witness has further deposed that there was no public person or any other vehicle was moving on the road at that time. He has also denied that he was not having the mobile with him or was not looking on the watch therefore he cannot tell the time when they reached at the ATM of Pahar Ganj. He has testified that there was no money in his purse when he handed over the same to the accused persons. He is unable to tell the time when he reached at Police Station Usman Pur but states it was still dark. He is also unable to tell the name of Police Officer whom he had met at Police Station Usmanpur. He is not aware of the name of police officer who took him to Police Station Adarsh Nagar on a bike. He has denied the suggestion that he was not taken to Police Station Adarsh Nagar on that day. Witness has further deposed that from Adarsh Nagar he went to Patel Nagar in a TSR after he was dropped there by a police officer of Police Station Usman Pur and his friend Jitender paid the fare of the TSR driver and he had narrated the entire story to his friend Jitender. Witness has also deposed that he did not tell the police that he had told the incident to his friend Jitender. According to the witness, he went to Karnal after the incident on 16.03.2010 and after his statement on 14.03.2010 he was again called on 15.03.2010 by the police and his statement was St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 14 of 106 recorded on 15.03.2010 also. He has testified that he was not shown any accused by the police on 15.03.2010 and after 15.03.2010 also he came to Police Station Adarsh Nagar but he does not remember the dates nor he can tell how many times he visited at Police Station Adarsh Nagar in connection with this case. Witness has denied the suggestion that no such incident had taken place or that no money was withdrawn from ATM by using his ATM card or that accused was shown to him that is why he is able to identify them.
(11) The witness has further deposed that now he is not working in Bajaj Auto Finance and therefore he is unable to produce the Icard. According to him, he left the job of Bajaj Auto Finance in April, 2010 and had joined that job in June 2008. According to him on 27.02.2010 he was residing in Karnal, Haryana and he started from his office on 27.02.2010 and reached Delhi. Witness has further deposed that from his office, he reached on foot upto the bus stop and hired the auto rickshaw from a prepaid booth within ten to fifteen minutes of his getting down from the bus. He is not aware of the distance between Adarsh Nagar Fly Over and Karnal Bypass. He is unable to tell the model of Maruti car. He has denied the suggestion that there were other vehicles on the road at that time, when the accused got stopped his TSR. He is not aware if there was any factory or residence near the flyover and is also not able to tell for how much time the accused persons gave beatings to the driver of TSR. According to St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 15 of 106 him, the TSR driver did not hit any of the accused. He has also deposed that the laptop was purchased in the name of his friend Amarpreet Singh who was working in HCL and he was using the same from February or March 2009. He has admitted that the bill of the laptop was not in his name. On a specific Question the witness has explained that two accused had put the pistol and knife on him and other was asking him to sit in the car. According to him, the accused persons who were asking him to sit in the car, were outside the car and they sat in the car, only after he sat in the car and three persons were sitting in the front seat of the car and the three including him were sitting in the rear seat of the car. He has further testified that he remained in the car with the accused persons for about two hours. He is unable to tell the distance between the Adarsh Nagar Fly Over and Pahar Ganj. He is unable to tell in how much time they reached Pahar Ganj from Adarsh Nagar Fly Over. He is also unable to tell the approximate time taken in reaching Pahar Ganj and states that they stayed in Pahar Ganj near ATM for some time, but he is unable to tell the exact time. He does not remember, if the accused persons sitting on the rear seat or front seat got down at ICICI ATM nor does he remember, how much time was taken in reaching Darya Ganj from Pahar Ganj. The witness is also unable to tell at which time, they reached Darya Ganj ATM. He has deposed that they stayed in Darya Ganj near ATM for some time but he is unable to tell the exact time St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 16 of 106 and states that he had not seen any person at the ATM at Pahar Ganj, Darya Ganj, Maujpur and Durgapuri.
(12) The witness has testified that he is MBA. He has admitted that from 27.02.2010 to 14.03.2010 he did not make any complaint either in writing or oral to any authority. According to him he did not lodge any complaint on 27.02.2010, firstly because he was frightened due to the incident, secondly he want to relax and thirdly, he wanted to go home due to Holi festival. Witness has further deposed that he was called twice or thrice for the TIP of the accused persons by the police in the court. He has denied the suggestion that accused Akash had neither shown him any knife nor he was on the spot or that accused Chandan had neither shown him katta nor he was on the spot. He has further denied the suggestion that accused Karan and Mukesh were also not on the spot or that he had implicated the accused persons at the instance of the Investigating Officer.
(13) PW5 Dr. Dharmender has deposed that on 06.02.2010 he was working in Hindu Rao Hospital as CMO and on that day, at about 11:30 PM he was going back to his residence from the hospital after his duty, in his car DL1CL2884 and when he reached on the road between Sunder Nagri and the DDA flats of GTB enclave, one TATA 407 was stopped in front of his car blocking his way. According to the witness, he stopped his car and got down and two persons who were St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 17 of 106 probably standing on the road, fled away with his car, as soon as he got down. He has stated that he tried to chase them, but could not succeeded. The witness pointed out towards accused Karan and Chandan who fled away along with his car. According to the witness, he went to Police Station Nand Nagri and lodged the report but he does not remember the FIR number. Witness has further deposed that after about 13 or 14 days, he received a call from Police Station Adarsh Nagar that his car had been recovered on which he went to the Police Station Adarsh Nagar and found his car parked in there and then he got released his car on superdari. He has proved the superdarginama executed by him which is Ex.PW5/A. He has brought the car in the Court which is Ex.PX and the photographs of his car are Ex.PW5/B, Ex.PW5/C and Ex.PW5/D. (14) In his cross examination by Ld. Defence counsels, witness has deposed that he does not remember the number of TATA 407 which blocked his way, however it was of camel color and he was alone in his car at that time and he might have left the hospital at about 11 PM. According to him at the time of snatching of car the road was not crowded, though people were coming and going. Witness has further deposed that he had identified accused Karan and Chandan present in the court even in the Police Station Adarsh Nagar but he does not remember the date when he identified these two accused St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 18 of 106 persons in Police Station Adarsh Nagar and has added that it was in the month of February in this year. Witness has denied the suggestion that accused Karan and Chandan neither blocked his way nor fled away with his car or that he is identifying accused Karan and Chandan in the court at the instance of the Investigating Officer. (15) PW6 Naubut Singh has deposed that he was working in the parking of Nagar Nigam, DLF, near Dilshad Extn, Ghaziabad and Rakesh Jain was the Contractor of the parking and Saurabh Jain is the son of Rakesh Jain. According to him on 14.03.2010 at about 11:30 AM, one boy came to park a blue color motorcycle, number of which he does not remember and he filled in the slip and gave the same to that boy. He does not remember the number on the slip nor is he able to identify that boy. He has testified that on 15.08.2010, police came to the parking with one boy and police took the copy from which he issued the slip and also the motorcycle and police also obtained his signatures on the seizure memo Ex.PW6/A. Witness has further proved the pad from which he issued the parking slip which is Ex.PW6/B. (16) Since the witness was found resiling from his previous statement made to the police, therefore he was crossexamined by the Ld. Defence Counsel wherein he has admitted that the contract was in the name of Saurabh Jain and not Rakesh Jain and that motorcycle was of make Bajaj Discover having number plate DL3SB G8719 of blue St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 19 of 106 color. He has also admitted that police came to know on 15.03.2010 and not on 15.08.2010. The accused Nasir has been pointed out to the witness but the witness could not identify the accused Nasir and stated that he was not the boy, who had parked the motorcycle in the parking on 14.03.2010 or who was brought to the parking by the police on 15.03.2010. Witness has further deposed that he did not tell the police in his statement that accused Nasir is the same boy, who parked the motorcycle in his parking. However, when confronted with his statement Ex.PW6/DX the above fact was found so recorded. (17) He has not been cross examined by the Ld. Defence counsels, despite opportunity granted.
(18) PW7 Bhagirath Lal has deposed that earlier he used to reside at H.No. 2110, Hari Enclave, Alipur, Delhi along with his family and he is a TSR driver by profession. According to him on the intervening night of 2728.02.2010 he had taken the TSR No. DL1RL8224 on rent from one Rakesh Nanda and was waiting for the passengers at Prepaid Booth of GTK bypass. Witness has further deposed that at about 12:30 AM one passenger with a prepaid booth slip of West Patel Nagar came to him and the said passenger boarded his TSR after which he moved towards West Patel Nagar via outer ring road and Mukundpur red light. According to the witness, when he was ascending Azadpur Flyover, there one Maruti Alto car came from St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 20 of 106 his right side and blocked his way. Witness has further deposed that three boys alighted from the said car and one of them gave him a punch on his face and took out a country made pistol and rest of the two were having their hands in their pocket and the said boy who was having a katta in his hand, which he showed to the passenger of his TSR and asked him to alight from the TSR and they all made the passenger to alight from his TSR. He has testified that there was a bag in the hand of the passenger, containing a laptop and one of the boys snatched the said bag containing laptop from the hand of that passenger and they all made the said passenger to sit in their Alto car and they also threatened him to keep quite. According to the witness, he was very much frightened and they drove their Alto Car at a very fast speed. Witness has further deposed that on 07.04.2010 he identified all the above said three accused persons in the Judicial Test Identification Parade at Rohini Jail which proceedings are respectively Ex.PW7/A, Ex.PW7/B and Ex.PW7/C. The witness has correctly identified all the three accused persons namely Karan @ Deva, Chandan @ Babbar and Akash in the Court as the persons who committed the offence and whom he later on identified in the jail but he could not give the role attributed to the accused. He has also identified the Maruti Alto car in the photographs Ex.P5/B, Ex.P5/C and Ex.P5/D. St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 21 of 106 (19) The witness has been crossexamined by the Ld. Addl. PP for the State wherein a specific question was put to the witness that at the time of commission of offence, accused Chandan was having a country made pistol in his hand, accused Akash was having a knife in his hand and they both pointed the katta and knife towards the passenger of his TSR and accused Karan snatched the bag, containing laptop from that passenger, to which the witness replied that he is not sure (Main pakke taur pe nahin keh sakta). He has denied the suggestion that he is not deliberately telling the role played by above said three accused because of their fear.
(20) In his cross examination by Ld. Defence counsels witness has deposed that the said Alto car was of off white color and there was full light at the place, where the Alto car obstructed his way. Witness has admitted that accused persons were having their face muffled with handkerchief and has voluntarily explained that they had tied handkerchiefs upto the nose and the portions above that was visible. Witness has admitted that photographs of the three accused persons were shown to him by the Investigating Officer, before TIP proceedings. Witness has denied the suggestion that no such incident had taken place.
(21) PW9 Rakesh Nanda has deposed that he was the registered owner of TSR bearing No. DL1RL8224 which was given by him to Jora Singh who was having driver namely Bhagirath for St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 22 of 106 plying the same. He has testified that the vehicle was purchased through financier and there was bank loan on it. According to him the installments were paid by Jora Singh to the financier and now all the installments had been paid and he transferred the said TSR in the name of Jora Singh. He has correctly identified the TSR No. DL1R L8224 which was produced by Jora Singh. This witness was not cross examined by Ld. Defence counsels despite opportunity granted and hence his testimony has gone uncontroverted.
(22) PW10 Jora Singh has deposed that he is the registered owner of the TSR bearing No. DL1RL8224 which was given to him by Rakesh Nanda the then registered owner of the said TSR and he was having a driver namely Bhagirath, to whom he had given the said TSR for plying. According to him, the vehicle was purchased through the financier and there was bank loan on it and the installments were paid by him to the financier and now all the installments have been paid and he got transferred the said TSR in his name from Rakesh Nanda. He has testified that on the intervening night of 2728.02.2010 his TSR was being driven by Bhagirath and in the morning of 28.02.2010, he was called at Police Station Adarsh Nagar where he reached. He has also deposed that his vehicle was found parked there and Bhagirath was also present and police released the said TSR to him. Witness has produced the original documents of the said TSR, photocopy of the RC in his name which is Ex.PW10/1; photocopy of St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 23 of 106 RC in the name of Rakesh Nanda which is Ex.PW10/2 and the TSR No. DL1RL8224 which was parked in the parking of the court which TSR is Ex.PW10/3.
(23) In his cross examination by Ld. Defence counsel, the witness has deposed that he is also an auto driver by profession and he has 12 TSR and 15 drivers. According to him he does not maintain any attendance register of the drivers and he gave TSR to the drivers on daily wages. He has further deposed that Bhagirath is not related to him, however he is working as driver with him for the last 78 years. Police/ Official witnesses:
(24) PW1 WHC Prafulla has deposed that on 14.03.2010 she was posted at Police Station Adarsh Nagar and was working as Duty Officer from 8AM to 4 PM and on that day at about 12:45 PM ASI Kuldeep brought a rukka on the basis of which she got recorded FIR No. 62/10 on the computer and further investigations was assigned to ASI Kuldeep Singh. She has proved the computer generated copy of the same which is Ex.PW1/A and she recorded DD No. 11A regarding registration of FIR and made endorsement to this effect which is Ex.PW1/B. (25) In her cross examination by Ld. Defence counsel, witness has deposed that computer operator recorded the FIR on the computer but she is unable to tell the name of the computer operator who St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 24 of 106 recorded this FIR as there were three computer operators working in the Police Station at the relevant time. According to her, she has not recorded all the details in DD No. 11A and ASI Kuldeep brought the rukka from road No. 51, Adarsh Nagar, Azad Pur. (26) PW3 Ct. Sumit has deposed that on 08.06.2010 he was posted as Constable at Police Station Adarsh Nagar and on that day as per instructions of the Investigating Officer he collected one pullanda in sealed condition and FSL form from MHC(M) vide RC No. 53/21/10 and deposited the said pullandas at FSL Rohini and returned one copy of RC along with acknowledgment of FSL to MHC(M).
According to him, there was no tampering with the pullanda till it remained in his possession and Investigating Officer recorded his statement. This witness was not cross examined by Ld. Defence counsel despite opportunity granted and hence his testimony has gone uncontroverted.
(27) PW4 HC Laxmi Narain has deposed that on 15.03.2010 he was working as MHC(M) at Police Station Adarsh Nagar and on that day ASI Kuldeep Singh deposited one pullanda, one motorcycle, one laptop, jewelery articles and mobile phone vide entry No. 3564 in register number 19. According to the witness on 17.03.2010 also, ASI Kuldeep Singh deposited one laptop and one alto car vide entry No. 3566 in register No.19 copies of which is Ex.PW4/A. He has further deposed that on 08.06.2010 as per instructions of Investigating Officer St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 25 of 106 he handed over one pullanda and FSL form in sealed condition vide RC No. 53/21/10 for depositing the said pullanda at FSL Rohini to Ct. Sumit and Ct. Sumit returned one copy of RC along with acknowledgment to FSL to him. According to him there was no tampering with the pullanda till it remained in his possession and Investigating Officer recorded his statement. He has proved the copy of register No. 21 which is Ex.PW4/B. This witness has not been cross examined by Ld. Defence counsel, despite opportunity granted and hence his testimony has gone uncontroverted.
(28) PW8 HC Pritam Chand has deposed that on 15.03.2010 he was posted at Police Station Adarsh Nagar and on that day, he joined the investigation of this case. According to the witness, at about 10:20 AM he along with PSI Pawan Dahiya, Inspector Brij Pal Singh, ASI Kuldeep, Ct. Zakir Hussain and Ct. Rahul Tyagi went in two private vehicles i.e. one Santro car and i10 car and left the Police Station. According to him at about 11 AM they reached near red light Nand Nagri where one secret informer met them there and informed that two boys namely Akash and Karan @ Deva would come in between 11 AM to 12 noon at Gagan Cinema after which they would take a TSR from there and would go Trilok Puri for selling the looted items. Witness has further deposed that the Investigating Officer briefed them and they encircled the area by taking their position at a distance of 2530 meters near bus stand and at about 11:30 AM three St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 26 of 106 boys came from the side of Sunder Nagri towards the bus stand. According to the witness, the secret informer informed that the short boy of black complexion was Karan @ Deva and the taller one was Akash after which all the three boys were apprehended there. According to him, ASI Kuldeep apprehended the boy who disclosed his name as Chandan, Inspector Brij Pal apprehended the boy who disclosed his name as Karan @ Deva and he (witness) apprehended the boy who disclosed his name as Akash. The witness has correctly identified all the three accused in the Court. He has testified that on formal search of accused Chandan one loaded country made pistol of .315 bore was recovered from the left dub of Pyjama like pant and Investigating Officer unloaded the country made pistol and prepared the sketch of pistol and cartridge and also took the measurement of pistol and cartridge, which sketch is Ex.PW8/A. He has proved that the country made pistol and cartridge were turned into cloth parcel and sealed with the seal of KSM after which it was taken into possession vide memo Ex.PW8/B. The witness has also testified that from the formal search of accused Karan @ Deva one laptop make P38 Compaq HCL was recovered from a bag of jute which was in his left hand and the Laptop was turned into the same bag and was taken into possession vide memo Ex.PW8/C. He has also deposed that from the formal search of accused Akash one orange color St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 27 of 106 polythene was recovered, which was in his hand and on opening the polythene, it was found containing one white color potali, that potali was opened and it was found containing one golden bangle, three rings, two chains and one mobile phone make NOKIA without SIM. According to the witness the Investigating Officer weighed the jewelery articles and all the articles were turned into same potli and again in the same polythene of orange color and all the articles were turned into a cloth parcel and sealed with the seal of KSM and it was taken into possession vide memo Ex.PW8/D. He has also proved that all the three accused persons were arrested vide memos respectively Ex.PW8/E, Ex.PW8/F and Ex.PW8/G after which their personal search was also conducted vide memos respectively Ex.PW8/H, Ex.PW8/J and Ex.PW8/K and all the accused persons made their disclosure statements vide Ex.PW8/L, Ex.PW8/M and Ex.PW8/N respectively.
(29) The witness has further deposed that pursuant to the disclosure statements of the accused persons, they left the spot at about 2:40 PM and went to Harsh Vihar in search of accused Nasir and when they reached near police booth Harsh Vihar where one boy was seeing coming from the front side and all the accused identified and pointed towards accused Nasir after which the said boy was apprehended and he disclosed his name as Nasir. He has proved that St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 28 of 106 the accused Nasir was arrested vide arrest memo Ex.PW8/P, his personal search was conducted vide memo Ex.PW9/I and his disclosure statement was recorded vide Ex.PW8/Q. The witness has testified that the accused Nasir disclosed that he could get recovered the motorcycle from DLF Parking, Bhopra Border, Ghaziabad, UP and also the Alto Car, which was used in the commission of robbery. According to the witness, pursuant to the disclosure statement of Nasir they along with accused Nasir went to DLF Parking, Bhopra border, UP and from there one blue colored discover motorcycle was recovered at the instance of accused Nasir from the parking. Witness has further deposed that the front number plate was having the number DL3SB8719 and the rear number plate was having the words DL3S BG8719 mentioned on the same. He has testified that the parking attendant Naubat Singh was called who produced parking slip pad, containing slip number 5011, where the entry was made regarding parking of the motorcycle and the said parking slip pad and motorcycle were seized vide memo Ex.PW6/A. The witness has also deposed that the Investigating Officer recorded the statement of Naubat Singh. He has further deposed that the Investigating Officer made inquiries regarding the said motorcycle and it was revealed that the said motorcycle was stolen from Usampur after which they all returned to the Police Station where the case property was deposited with MHC(M) and accused persons were confined in lock up and St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 29 of 106 Investigating Officer recorded his statement.
(30) Witness HC Pritam has further deposed that on 17.03.2010 he again joined the investigations of this case and on that day he along with ASI Kuldeep, Insp. Brij Pal, Ct. Rahul Tyagi, Ct. Zakir Hussain and Ct. Mukund along with all the above named four accused persons, who were on police remand, went to Jawala Nagar, Shahdara, Delhi, pursuant to the disclosure statement of the accused persons. According to him they parked their vehicle outside the street, after which he along with ASI Kuldeep Singh and Ct. Rahul along with accused Karan @ Deva went inside the street and accused Karan @ Deva pointed out his house No. 115, Ground Floor, where from an Almirah the accused got recovered one laptop of black color make Compaq Presario V2000 and disclosed that the said laptop was robbed from the Rohini, with his associates after which the said laptop was seized vide memo Ex.PW8/R. According to the witness, the accused Nasir was inquired regarding the key of the Alto Car on which Nasir disclosed that the said was kept by him at Bhopra in the factory, where he was employed and thereafter the Investigating Officer took oral permission from the Inspector since the matter was of outstation. The witness has testified that the permission was granted after which they reached Bhopra where accused Nasir led them to Gali No. 10, Gagan Vihar inside a room and from there he lifted one bunch of keys, out of which two keys were produced before the Investigating Officer St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 30 of 106 and disclosed that these keys belonged to the stolen Alto car, which was found lying outside the house of Amit. He has also deposed that thereafter accused Nasir led them to house No. F2/65, Sunder Nagri, where the said car was lying at a distance from the said house in front of the house. According to him, the Maruti Alto car was having number plate of DL1C2884 and they keys and the Alto car were taken into possession vide memo Ex.PW8/S. He has proved that the Investigating Officer prepared site plan of the spot and also requested public persons to join the investigation, but they left the spot and went away without disclosing their whereabouts. According to the witness, they returned to the Police Station where the case property was deposited with the MHC(M) and the accused persons were confined in lock up and Investigating Officer recorded statement of witnesses. (31) He has further deposed that on 18.03.2010 he again joined the investigations of this case and on that day, ASI Kuldeep interrogated accused Akash and recorded his supplementary disclosure statement which is Ex.PW8/T wherein the accused Akash disclosed that he along with his associates committed robbery of mobile phone, make NOKIA1110 and Motorola L9 and the NOKIA phone was with his associate Afzal whereas Motorola phone was remained with him for some days and thereafter, it was given to Dhananjay, brother of coaccused Nasir and he could get arrested Afzal and also disclosed that he can identify the ATM from where St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 31 of 106 they committed the crime. According to the witness, pursuant to his disclosure statement the accused Akash led them to the house No. M227, Gali No. 8, Sunder Nagri and disclosed that the said house was of accused Afzal on which the Investigating Officer prepared pointing out memo which is Ex.PW8/U. Witness has further deposed that accused Afzal was not present in his house at that time and thereafter accused Akash led them to Timber Market, Shahdara, Loni Road, Delhi where he pointed out an ATM of PNB and disclosed that he along with Afzal got dispensed Rs.10,000/ from the said ATM from the abducted person, with the help of his card, who was with them at that time. He has proved that the Investigating Officer prepared pointing out memo in this regard which is Ex.PW8/V. According to the witness, subsequently accused Akash led them to ATM, SBI, Durga Puri Chowk, Delhi and disclosed that Mukesh and Afzal got dispensed Rs.10,000/ from the said ATM card of the abducted person, with the help of his card who was with them at that time and Investigating Officer prepared pointing out memo Ex.PW8/W. He has testified that thereafter they returned to Police Station and accused was confined in the lock up and Investigating Officer recorded his statement.
(32) The witness has correctly identified the accused Chandan, Karan, Akash and Nasir in the Court and also identified the case property i.e. Alto car bearing No.DL1CL2884 which is Ex.PX & two St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 32 of 106 keys which are Ex.PY collectively at the instance of accused Nasir; one country made pistol and one fired cartridge recovered from the possession of accused Chandan, which county made pistol is Ex.PZ & the cartridge is Ex.PZ1 (the cartridge was test fired by the FSL authorities); one laptop make Compaq intel recovered at the instance of accused Karan which laptop is Ex.PZ2 and the parking slips pad which is Ex.PW6/B. (33) In his cross examination by the Ld. Defence counsels, the witness has deposed that his statements in this case were recorded three times on 15.03.2010, 17.03.2010 and 18.03.2010 and all the three statements were recorded by the Investigating Officer at the Police Station. According to the witness, in his presence no other statement was recorded and has voluntarily explained that after recording his statement, he was relieved and therefore he is unable to tell if anybody's statement was recorded by the Investigating Officer or not. He has testified that the Investigating Officer did not make a departure entry in his presence on 15.03.2010, while leaving the Police Station. According to him, both the vehicles were private and one of them was of Inspector Brij Pal and the other was of PSI Pawan Kumar. He does not remember the color of clothes of accused Chandan which he wore, however, he had worn one pant type pyjama and a T shirt. He has testified that the Investigating Officer did not test fire the country made pistol recovered from Chandan. According to him, the sketch St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 33 of 106 was prepared by the Investigating Officer at the spot, while sitting inside the Santo Car and pullanda of weapon and cartridge was prepared and same was sealed in the car. He has also deposed that in his presence, no investigation was conducted by the Investigating Officer in respect of the laptop Ex.PZ2 recovered from accused Karan, regarding its ownership and about the robbery nor the Laptop Ex.PZ2 was turned into any cloth parcel.
(34) Witness has further deposed that first of all, accused Chandan was arrested at about 12:30 PM, thereafter accused Karan was arrested at about 1 PM and thereafter accused Akash was arrested at about 1:30 PM and their arrest memos and personal search memos were prepared at the spot, while sitting in the Santro car. According to the witness, he prepared some of the memos on the dictation of the Investigating Officer and some of the memos were prepared by the Investigating Officer himself and the other documents were prepared simultaneously in the Santro car. He has testified that they reached Harsh Vihar at about 33:15 PM and after the arrest of accused Nasir, they reached at the parking at about 4:304:45 PM. He has also deposed that the Investigating Officer recorded the statement of parking attendant while sitting on the attendant's seat and the key of the motorcycle was not there. According to him, Investigating Officer requested some public persons to join the investigations, but none agreed and left the spot without disclosing their whereabouts and due St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 34 of 106 to paucity of time, no notice was served to those public persons by the Investigating Officer. Witness has further deposed that the house number of accused Karan was 115, Jwala Nagar, Shahdara, Delhi where mother of accused Karan met them. He has also deposed that the Investigating Officer did not record her statement and some of the neighbours were called but they refused to join the investigations and no notice was served upon them by the Investigating Officer. The witness has also deposed that the Alto car was brought to Police Station by Inspector Brij Pal and no person from the factory agreed to join the investigation, therefore Investigating Officer could not record their statement at the time of recovery of keys of the Alto car. He has explained that most of the documents were written by the Investigating Officer during investigation and supplementary disclosure statement of accused Akash was recorded by the Investigating Officer in the Police Station. Witness has denied the suggestion that he never joined the investigation of this car or that he signed the memos while sitting in the Police Station at the instance of the Investigating Officer. He has further denied the suggestion that nothing was recovered at the instance of accused persons or that accused persons have been falsely implicated in this case. Witness has also denied the suggestion that accused persons were arrested from their respective houses and falsely implicated in this case by the Investigating Officer or that the accused persons had neither robbed the complainant, nor stolen anything from St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 35 of 106 him.
(35) PW11 Inspector Brij Pal has deposed that on 15.03.2010 he was posted at Police Station Adarsh Nagar and on that day, he joined the investigations of this case. According to the witness, he along with ASI Kuldeep, SI Pawan Dahiya, HC Pritam Singh, Ct. Rahul, Ct. Zakir Hussain and Ct. Mukund started from Police Station Adarsh Nagar for Nand Nagari as ASI Kuldeep had secret information and he had to meet with secret informer at Nand Nagari who can reveal some clue regarding the investigations. According to him at about 11:00 AM they reached near T point Nand Nagari, near Gagan Cinema, where informer met ASI Kuldeep and told that accused persons wanted in this case namely Akash and Karan @ Deva would come between 11AM to 12 noon for taking TSR and would go towards Trilokpuri for disposing off the case property. Witness has further deposed that ASI Kuldeep requested threefour public persons to join the investigations after disclosing the secret information, but none joined and left the spot without disclosing their identity and after showing their genuine grounds. According to the witness thereafter ASI Kuldeep deployed the police staff in the radius of 2025 meters, opposite Gagan Cinema, near Sunder Ngari bus stand and at about 11:30 AM, three persons were found coming form the side of Sunder Nagari towards bus stand and the informer pointed out towards the short boy as accused Karan @ Deva and the other tall boy as accused St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 36 of 106 Akash and along with them, one other boy also there. He has testified that all the said three boys were apprehended by the police staff. He has explained that the third boy was apprehended by ASI Kuldeep who disclosed his name as Chandan; the accused Karan @ Deva was apprehended by him (witness) and the accused Akash was apprehended by HC Pritam whose names they came to know on interrogation. Witness has further deposed that first of all, the search of accused Chandan was conducted and from his left side dub, one loaded country made pistol (katta) was recovered which katta was checked and unloaded and the sketch of katta as well as the live cartridge was prepared by ASI Kuldeep Singh, which is Ex.PW8/A the measurement was mentioned by ASI Kuldeep in the sketch itself. According to him thereafter the said katta and the live cartridge were turned into cloth parcel and sealed with the seal of KSM and seized vide seizure memo Ex.PW8/B. He has also deposed that thereafter the search of accused Karan @ Deva was conducted by the Investigating Officer, who was carrying a jute bag in his left hand and the said jute bag was checked and one laptop of black color make HCL P38 was recovered which laptop was seized along with the jute bag vide seizure memo Ex.PW8/C. According to him, search of accused Akash was taken by the Investigating Officer, who was carrying one orange colored polythene and the said polythene was containing one St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 37 of 106 cloth potli and the said potli was checked by the Investigating Officer, which was found containing one golden kada/ chudi, two golden chain, three golden rings and one Nokia mobile phone without SIM. He has testified that the jewelery articles along with polythene were kept in a cloth and converted into a pullanda and sealed with the seal of KSM and the same along with mobile phone make NOKIA were seized vide seizure memo Ex.PW8/D. He has further deposed that all the three accused namely Chandan @ Babar, Karan @ Deva and Akash were thoroughly interrogated after which they were arrested in the present case vide arrest memo Ex.PW8/E, Ex.PW8/F and Ex.PW8/G; their personal search was also conducted vide memos Ex.PW8/H, Ex.PW8/J and Ex.PW8/K respectively after which the disclosure statements of accused namely Akash, Chandan @ Babar and Karan @ Deva were recorded vide Ex.PW8/L, Ex.PW8/M and Ex.PW8/N respectively. He has further deposed that in pursuance of the disclosure statements of the accused persons, they proceeded in search of accused Nasir they reached Harsh VIhar, Police Booth where accused Nasir was found coming and was identified by all the above said three accused as one of their associates involved in the present offence. According to the witness, the said boy was apprehended and on interrogation, he admitted his involvement in the present case after which Nasir was arrested vide memo Ex.PW8/P, his personal search St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 38 of 106 was also conducted vide memo Ex.PW8/P1 after which accused Nasir made his disclosure statement vide Ex.PW8/Q and he confessed that the motorcycle used in one of the offence of robbery has been parked in DLF parking. The witness has proved that the accused Nasir led them to DLF Parking where he pointed out towards one Bajaj Discover motorcycle having number plate of DL3SBG8719 and disclosed that the said motorcycle was the same motorcycle. According to him the engine number and chassis number were checked and thereafter they checked the actual registration number of said motorcycle which was found to be as DL3SBG6715. He has testified that the parking book containing the said parking slip number 5011 of said motorcycle was taken from the parking attendant after which the motorcycle as well as the parking slip book were seized vide seizure memo Ex.PW6/A. He has also deposed that Investigating Officer ASI Kuldeep Singh recorded the statement of parking attendant, namely Naubat Singh and thereafter they returned back to the Police Station where Investigating Officer recorded his statement.
(36) According to the witness, on 17.03.2010 he again joined the investigations with ASI Kuldeep Singh, Ct. Rahul, Ct. Zakir, HC Pritam and Ct. Mukund and they along with accused Karan @ Deva, Akash, Nasir and Chandan reached at house No. 115, gali No.3 Jawalapuri where at the instance of accused Karan one laptop COMPAC was recovered which was seized by the Investigating St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 39 of 106 Officer U/s 102 Cr. P.C. and thereafter at the instance of the accused Nasir, they reached at Gagan Vihar, Rasgulae Wali Gali near Harsh Vihar Bhopura border and one key of the car was recovered from there. He has further deposed that thereafter at the instance of accused Nasir they reached at F2/65, Sunder Nagri where the accused Nasir got recovered one Maruti Alto car bearing No. DL1CL2884 which was seized by the Investigating Officer U/s 102 Cr. P.C. (37) The witness has correctly identified the accused Chandan, Karan, Akash and Nasir in the Court and also identified the case property i.e. Alto car bearing No.DL1CL2884 from the photographs Ex.PW5/B, Ex.PW5/C and Ex.PW5/D which car is Ex.PX recovered at the instance of accused Nasir; one country made pistol and one fired cartridge recovered from the possession of accused Chandan, which county made pistol is Ex.PZ & the cartridge is Ex.PZ1 (the cartridge was test fired by the FSL authorities) and the parking slips pad which is Ex.PW6/B. (38) In his cross examination by Ld. Defence counsel, the witness has deposed that his statement was recorded in the Police Station on 15.03.2010 from 7.00PM to 9.00PM. He is not aware if statement of any police official was recorded by the Investigating Officer in the Police Station nor does he remember whether the Investigating Officer had recorded his statement on 17.03.2010. According to the witness, the Investigating Officer might have made St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 40 of 106 the DD entry before leaving the Police Station on 15 and 17 March 2010. He has also deposed that on 15.03.2010 they remained at the spot of apprehension for three hours i.e. 11.30AM to 2.30PM. Witness has further deposed that HC Pritam remained with them till 2.30PM at the spot but he does not remember exactly whether he was present till further proceedings. He also does not remember whether HC Pritam had come with them to the Police Station and whether the Investigating Officer had made any arrival entry in the Police Station on 15 and 17 March 2010. He has testified that one Santro car belongs to him and other vehicle i.e. i10 belongs to SI Pawan Dahiya. He has also deposed that at the time of apprehension, accused Chandan was wearing Payjama type pant and T Shirt but he does not remember the colour of the clothes. According to him, the katta and cartridge were sealed by the Investigating Officer while sitting on the ground. He has denied the suggestion that no katta or cartridge were recovered from the possession of accused Chandan or that the same has been planted upon him by the Investigating Officer. Witness has also denied the suggestion that no HCL laptop was recovered from the possession of accused Karan @ Deva or that the same has been planted upon him by the Investigating Officer. The witness has admitted that there is residential area at the distance of about 5060meters and kiosks near the spot of apprehension. He has also admitted that the spot is thorough fare and few people were roaming on the road. Witness has St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 41 of 106 futher admitted that there was a bus stop near the spot of apprehension of accused persons and twothree passengers were waiting for the bus. He has testified that the Investigating Officer had asked fivesix passers bye's to join the proceedings but they refused to join the same and no notice was given by the Investigating Officer to the public persons for not joining the proceedings. According to him, they remained in the parking lot for about 40 minutes and the Investigating Officer did not ask anybody in his presence to join the proceeding in the parking lot and has voluntarily explained that only Naubat Singh the parking attendant was present there. He has denied the suggestion that motorcycle was not recovered at the instance of accused Nasir. Witness has further deposed that the Alto car might have been driven by Ct. Rahul Tyagi to the Police Station. He has further deposed that near the house of Karan @ Deva Investigating Officer asked twothree passers by to join the proceedings but he is not aware what they had replied to the queries of the Investigating Officer as he was sitting in the other vehicles with the other accused persons. He is unable to tell to whom the house No. F2/65 belongs and has voluntarily explained that the alto car was recovered from in front of the said house at the instance of accused Nasir. According to him the Investigating Officer did not ask anybody to join the investigations at the time of recovery of the Alto car. He has also deposed that Bhagwan Dass did not meet them at his house and the ground floor of the house of Bhagwan Dass St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 42 of 106 was opened as it was a workshop and no person was present at the said work shop. Witness has denied the suggestion that Nasir did not lead the police party to the house of Bhagwan Dass or that he did not recover the key of the car from any shirt. Witness has further denied the suggestion that he did not join the police party on 15 and 17 March 2010. Witness has denied the suggestion that he has signed all the documents while sitting in the Police Station.
(39) PW12 Ct. Rahul Tyagi has deposed that on 17.03.2010 he was posted at Police Station Adarsh Nagar and on that day, he joined the investigations of the present case and on that he along with Ct. Zakir, Ct. Mukund, HC Pritam, ASI Kuldeep and Insp. Brij Pal along with accused Chandan @ Babr, Karan @ Deva, Akash and Nasir left the Police Station in the government gypsy. According to him first of all, they went to the house of accused Karan @ Deva i.e. house No. 115, gali No,3 Jawala Nagar, Shahdara, Delhi and they left the government gypsy at Jawala Nagar chowk. Witness has further deposed that he along with HC Pritam and ASI Kuldeep along with accused Karan @ Deva went to the house of accused Karan @ Deva and rest of the police staff and remaining accused persons remained in the said gypsy. According to him accused Karan @ Deva got recovered one laptop after lifting it from the almirah and accused Karan @ Deva disclosed that the said laptop was stolen from Rohini by them and Investigating Officer prepared seizure memo of the laptop St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 43 of 106 COMPAQ of black color, which is Ex.PW8/R. Witness has further deposed that thereafter they took accused and the recovered laptop and returned back to the gypsy and Investigating Officer took oral permission from the senior officers for going to Bhopura, Sahibabad, Ghaziabad, UP after which they left for Bhopura, Shahibabad in the government gypsy. According to the witness, the accused Nasir led them inside a house, where a factory was running by him and from the house accused Nasir took out a bunch of key from the pocket of a shirt which was lying hanging on the khunti and disclosed that the said key was of an Alto car bearing No. DL1C2884 which was robbed by them from Nand Nagari which car was parked at Sunder Nagar near the house of Amit. Witness has further deposed that thereafter they all went to Sunder Nagari where accused Nasir pointed out a place at F2/85, Sunder Nagari, Delhi where an Alto car of sliver color bearing No. DL1CL2884 was found parked and at his instance, the said car was taken into possession. According to him public persons were asked to join the investigation, but they did not agree and left the spot without disclosing their whereabouts after which the seizure memo of the car was prepared which is Ex.PW8/S. Witness has further deposed that the said car was driven by Inspector Brij Pal and the remaining staff and accused persons in the government gypsy reached the Police Station. The witness has explained that Investigating Officer also prepared the rough site plan of the place of recovery of St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 44 of 106 the Alto car. He has further deposed that Investigating Officer recorded his statement and case property was deposited with MHC(M). According to him, the said laptop and Alto car were the case property of some other cases, which were recovered in this case. He has correctly identified the accused in the court and also the case property i.e. alto car which is Ex.PX.
(40) In his cross examination by Ld. Defence counsel, witness has deposed that his statement was recorded by the Investigating Officer ASI Kuldeep in the Police Station at about 7:30/8 PM and in his presence, statement of HC Pritam was recorded about half hour prior to his statement. He does not remember the number of the government gypsy but states that it was of the SHO. According to him, the Investigating Officer made departure entry but he does not remember it's number. Witness has further deposed that all the accused persons were sitting on the back seat of the gypsy and Inspector Brij Pal and Investigating Officer were sitting on the front two seats. He has testified that they left the Police Station at about 1:30/2PM and reached the house of accused Karan @ Deva at about 2:30 PM. According to the witness the chowk where the gypsy was parked, was at a distance of about 100 yards from the house of accused Karan. Witness has admitted that there were other houses near the house of accused Karan and has stated that mob gathered there and Investigating Officer requested public persons to join the St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 45 of 106 investigations but none agreed and no notice was served by the Investigating Officer to the public persons, who refused to join investigations. According to him the house of accused Karan @ Deva was already opened as his mother was present there which fact he did not get mentioned in his statement to the Investigating Officer. He has testified that statement of mother of accused Karan @ Deva was not recorded by the Investigating Officer and the almirah in which the laptop was taken out was unlocked and bolted only. Witness has further deposed that no DD entry was made at local Police Station at Shahibabad and they left the house of accused Karan at about 3:30 PM and reached Shahibabad at about 4 PM. Witness has also deposed that the factory of accused Nasir was closed, when they reached there and the owner of the factory/house of Nasir opened the lock of the said house and Investigating Officer did not record the statement of the owner of said factory/house of accused Nasir. According to him, the Investigating Officer asked public persons to join the investigation but none agreed and left the spot without disclosing their whereabouts and no action was taken by the Investigating Officer against those public persons who refused to join. Witness has testified that seizure memo of the key was not prepared and they left the house of accused Nasir at about 4:30 PM and he did not sign the site plan of the place of recovery of Alto car. He has denied the suggestion that he never joined the investigations of this case or that nothing was recovered in St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 46 of 106 his presence from the accused persons or that he did not sign any memo or that he recovery has been foisted upon the accused persons by the Investigating Officer.
(41) PW13 SI Kuldeep Singh is the Investigating Officer of the present case. He has deposed that on 14.03.2010 he was posted at Police Station Adarsh Nagar and on that day one person namely Prashant Pandey came to the Police Station and alleged that a robbery had taken place with him where his laptop, two mobile phones were taken away by the assailants after kidnapping him and also money was taken out through his ATM Card by the assailants. He has proved having recorded the statement of Prashant Pandey in detail vide Ex.PW2/A and he attested the same with his signatures at point B and thereafter he made an endorsement on the same vide Ex.PW13/A after which he handed over the rukka to the Duty Officer for registration of FIR. Witness has further deposed that after registration of FIR, investigation of this case was handed over to him and he received copy of FIR and original rukka. He has proved that thereafter at the instance of Prashant he reached at Azadpur Fly over and prepared the site plan at the instance of Prashant which is Ex.PW13/B and again recorded the statement of Prashant Pandey. The witness has further deposed that Prashant Pandey handed over receipt of laptop Ex.PW2/C to him and he seized the same vide seizure memo St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 47 of 106 Ex.PW2/B and during his investigation he came to know the name of the driver as Bhagirath of the TSR in which Prashant Pandey was traveling. He has proved having recorded the statement of Bhagirath and secret informer gave information to him that the members of the Nasir Gang might be involved in this case.
(42) Witness has further deposed that on the next day on 15.03.2010 he received a secret information that the assailants of this case were going to Gagan Cinema, from Sunder Nagri to sell the robbed articles to the another place by TSR. According to the witness, he formed a raiding party after informing the secret information to the SHO and included Inspector Brij Pal, PSI Pawan Dahiya, HC Pritam, Ct. Jakir, Ct. Vinod and Ct. Rahul Tyagi in the raiding party. He has testified that thereafter they reached at Gagan Cinema near Sunder Nagri and on the way the secret informer also joined them and they parked their two vehicles after which he moved around in front of Gagan Cinema at the bus stand and asked fourfive public persons to join the police proceedings but none agreed and left the place without informing their names and addresses. Witness has further deposed that without wasting further time, they continued with their work and at about 11.30 AM the secret informer pointed out two persons i.e. one was of short height and another was having long height and also pointed out a third person who was a fat one as the assailants who committed the incident of this case on which they apprehended all St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 48 of 106 three persons immediately. According to him the person having short height was apprehended by Inspector Brij Pal who disclosed his name as Karan @ Deva, the person having long height was apprehended by HC Pritam who disclosed his name as Akash and the third fat person was apprehended by him who disclosed his name as Chandan after which he took formal search of above said persons. He has proved that one loaded katta was recovered from the right dub of accused Chandan and the same was checked and one live cartridge was found in the katta after which he took out the cartridge and prepared the sketch of cartridge and the katta vide Ex.PW8/A and took measurement of the same and mentioned the same in the sketch. According to the witness, the same were converted into a cloth pullanda and sealed the same with the seal of KSM and seized the same vide memo Ex.PW8/B. Witness has further deposed that one laptop of HCL was recovered from the possession of the accused Karan @ Deva in a jute bag which laptop he seized vide memo Ex.PW8/C and mentioned the model number of laptop in the seizure memo and Karan disclosed that the said laptop was robbed from the victim of this case. Witness has also deposed that one orange colour plastic bag was recovered from the possession of accused Akash and the gold jeweleries were recovered in a cloth in the polythene and one mobile phone of NOKIA 7210 C was also recovered from the polythene. The witness has proved having St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 49 of 106 checked the IMEI number of the phone and mentioned the same in the seizure memo and he converted the the jewelery items and mobile phone in a cloth pullanda and sealed the same with the seal of KSM and seized the same vide seizure memo Ex.PW8/D. According to him, the accused Akash disclosed that he committed the robbery of the above said jewelery of mobile from a lady who was sitting in a TSR at Kastoorba Gandhi Marg, Cannaught Place. He has further deposed that the above accused were interrogated and they confessed about their involvement in this case after which he arrested accused Chandan vide Ex.PW8/E, his personal search was taken vide Ex.PW8/H and recorded his disclosure statement vide Ex.PW8/M. The witness has proved having arrested accused Karan @ Deva vide Ex.PW8/F, having taken his personal search vide Ex.PW8/J and having recorded his disclosure statement vide Ex.PW8/N. According to the witness, he also arrested accused Akash vide Ex.PW8/G, he took his personal search vide Ex.PW8/K and recorded disclosure statement of accused Akash vide Ex.PW8/L. (43) The witness has also deposed that the accused disclosed about their associate Nasir who used the motorcycle in the incident and thereafter they alongwith the above said three accused persons reached at Harsh Vihar Police Booth where at the instance of above said three accused they apprehended one person who disclosed his St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 50 of 106 name as Nasir and he was interrogated by him during which the accused Nasir confessed about his involvement in this case. He has proved that he arrested accused Nasir vide Ex.PW8/R, took his personal search vide Ex.PW8/B1 and recorded the disclosure statement of accused Nasir vide Ex.PW8/Q and thereafter at the instance of the accused Nasir they all reached at the DLF Parking, at Bhopra Border, Sahibabad, UP and the parking attendant Naubat Singh met them there. According to the witness at the instance of Nasir and Naubat Singh, one motorcycle bearing fake number DL 3S BG 8719 on the back side and on the front side DL 3S B 8719 was recovered and Naubat Singh also produced the receipt book and the S.No. 5011 and the above said motorcycle was found parked in the parking. Witness has further deposed that the engine and chasis number of the motorcycle was checked by them and they came to know the original number of the motor cycle as DL 3S BG 6715 after which he seized the motorcycle and the receipt book vide seizure memo Ex.PW6/A. The witness has also deposed that he recorded the statement of Naubat Singh after which they returned back to the Police Station where he deposited the seized articles in the malkhana, recorded the statement of witnesses and accused were kept in the lock up.
(44) According to the Investigating Officer, on the next day all four accused persons were produced before the Court and three days' St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 51 of 106 Police Custody remand of all the accused persons was obtained when all the accused persons were interrogated by him at the Police Station. He has testified that the accused Nasir disclosed that the key of stolen car Alto used in this incident was kept in the house of Bhagwan Dass at Rasgulle wali Gali, Gagan Vihar, Bhopra Border, Delhi on which he along with Inspector Brij Pal, HC Pritam, Ct. Mukund, Ct. Rahul Tyagi with all accused persons reached at Gagan Vihar and at the instance of Nasir, key of the Alto car was recovered. He has further deposed that thereafter they reached near the H.No. F2/65, Sunder Nagri and in front of the house one Maruti Alto Car bearing no. DL 1C L 2884 was recovered. He has proved having seized the alto car and keys vide seizure memo Ex.PW8/S. The witness has also deposed that thereafter at the instance of the accused Karan one laptop of Compaq was recovered from the house number 115, Gali No.3, Jwala Nagar, Shahdara, Delhi and the same was also sealed in a cloth pullanda by him with the seal of KSM and seized the same vide memo Ex.PW8/R after which they returned to the Police Station where he deposited the recovered articles in the Malkhana and recorded the statement of witnesses. He has further deposed that on 18.03.2010 they along with accused Akash reached at Sunder Nagri as the accused Akash disclosed that another accused Afzal was residing at Sunder Nagari and his disclosure statement was recorded vide Ex.PW8/T. The witness has also deposed that accused Akash pointed out the St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 52 of 106 house of Afzal vide pointing out memo Ex.PW8/U and accused Akash also pointed out the place i.e. PNB ATM Timber Market, Loni Road, Shahdara, where the ATM Card was used for withdrawing Rs.10,000/ and in this regard pointing out memo was prepared vide Ex.PW8/V. He has further proved that Akash also pointed out the ATM, SBI, Durga Puri Chowk from where Rs.10,000/ were withdrawn by using of ATM Card and he prepared the pointing out memo Ex.PW8/W. According to the witness thereafter they returned back to the Police Station and on the next day the accused were produced before the court in muffled face and they were sent to Judicial Custody. He has proved having moved an application for the Test Identification Parade of all the accused persons vide Ex.PW13/C which was fixed for 22.03.2010. The witness has also deposed that on 22.03.2010 after TIP proceedings he received the copy of TIP proceedings of Akash, Karan, Chandan and Nasir which are Ex.PW13/D, Ex.PW13/E, Ex.PW13/F and Ex.PW13/G respectively and in the TIP proceedings witness correctly identified the accused Akash and Karan but he was unable to identify accused Chandan and Nasir in the TIP proceedings. According to the witness, he again moved application for TIP of accused Chandan, Akash and Karan by Bhagirath, TSR Driver which was fixed for 07.04.2010 and Bhagirath correctly identified accused Akash, Chandan and Karan. He has proved the copy of TIP of accused St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 53 of 106 Akash, Chandan and Karan received by him which are Ex.PW13/H, Ex.PW13/I and Ex.PW13/J respectively.
(45) It has been observed by this court that the TIP proceedings are not disputed by the accused persons, which TIP proceedings in respect of accused Akash, Karan, Chandan and Nasir are Ex.PX1 to Ex.PX4 and TIP proceeding of Nasir is Ex.PX5.
(46) The witness has further deposed that on 12.07.2010 he interrogated the accused Mukesh and Afzal with the permission of the court and thereafter he arrested the accused Mukesh vide Ex.PW13/K, his personal search was taken vide Ex.PW13/L and his disclosure statement was recorded vide Ex.PW13/M. He has also deposed that he arrested the accused Afzal vide Ex.PW13/N, his personal search was taken vide Ex.PW13/O and his disclosure statement was recorded vide Ex.PW13/P. According to the witness, he moved an application for TIP of accused Mukesh and Afzal vide Ex.PW13/Q and in the TIP proceedings both accused persons were identified by the victim and he received the TIP proceedings vide Ex.PW13/R and Ex.PW13/S. According to him thereafter he handed over the investigation of this case to ASI Ashok as he has been transferred from the Police Station. He has also proved the ballistic expert report which is Ex.PW13/T and the sanction U/s 39 Arms Act which is Ex.PW13/U. St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 54 of 106 (47) He has correctly identified the accused Chandan, Karan, Akash, Afzal, Nasir and Mukesh in the Court and also identified the case property i.e. parking slip which is Ex.PW6/B; Alto car bearing no. DL 1CL 2884 which is Ex.PX and its photographs are Ex.PW5/B, Ex.PW5/C and Ex.PW5/D; one country made pistol and one fired cartridge as the same as recovered from the possession of accused Chandan, which country made pistol is Ex.PZ & the cartridge is Ex.PZ1; one laptop of make Compaq Intel which laptop is Ex.PZ2. (48) In his cross examination by Ld. Defence counsel, witness has admitted that he has mentioned the model number of HCL Laptop in the seizure memo after checking from the receipt which was handed over to him by the complainant. He has also deposed that complainant Prashant Pandey did not come to him on 28.02.2010 and on 14.03.2010 he visited the spot along with complainant Prashant Pandey and on his instance he had prepared the site plan. According to the witness, the complainant had signed the site plan as a witness and except the site plan he had not taken signatures of complainant on any other document at the spot. However, after going through the judicial file the witness has admitted that Ex.PW13/B does not bear signatures of the complainant. He has also deposed that he had made a DD entry before the leaving the Police Station along with complainant on 14.03.2010 but he does not remember its number. He has further St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 55 of 106 deposed that the complainant did not disclose him anything about the incident dated 28.02.2010. Witness has admitted that no cash and mobile phones NOKIA and Motorola was recovered from the possession of any accused. According to the witness he did not take the CCTV Footage of ATMs from the concerned banks as they were not clear. He has also deposed that that he had recorded the statement of police officials while sitting in the Santro car on 15.03.2010 from 12.30 to 2.40PM. According to the witness, he had made DD entry before leaving the Police Station on 15.03.2010 and also made DD entry on dated 17th and 18th March 2010 also but he does not remember their numbers. He has also deposed that HC Pritam remained with him till their arrival to the Police Station. He has testified that statements of other police officials were recorded in the presence of HC Pritam. The witness has further deposed that the Santro car belongs to Inspector Brij Pal and other Santro car belonged to PSI Pawan Kumar. According to him, at the time of apprehension of accused Chandan he was wearing pantnuma Payjama and T Shirt. He has also deposed that he did not test fired the country made pistol from katta and the weapon and cartridge was sealed while standing at the spot. He has denied the suggestion that no laptop of HCL was recovered from the possession of accused Karan @ Deva or that the same was planted upon him by him. He has admitted that at the apprehension of accused persons on dated 15.03.2010 many public St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 56 of 106 persons were standing at bus stand. Witness has further admitted that the place of apprehension of accused is highly populated area and many people were roaming on the road. He has also admitted that on the left side there are residential house at a distance of 2025 feet and there were shops and Gagan Cinema. According to the witness, they remained in the parking lot for about 3040 minutes and he recorded statement of Naubat Ram while sitting on the bench/takhat. He has denied the suggestion that motorcycle was not recovered at the instance of accused Nasir. The witness does not remember as to who drove the Alto Car to the Police Station and has deposed that at the house of Karan @ Deva, two ladies met them one of them was his mother but he is not aware about the other lady and did take the statement of those ladies. He has also deposed that he had asked two three neighborers to join the proceedings but they refused to join the same and he did not give any notice to them for not joining the proceedings. Witness has denied the suggestion that the keys of the alto car was not recovered from the house of Bhagwan Dass or that the same was planted by him to falsely implicate him. He has testified that he did not record the statement of Bhagwan Dass at the time of recovery of keys of Alto car and that the owner of the Alto Car Dr. Dharmender was called one or two times in the Police Station. (49) The Investigating Officer has denied the suggestion that he did not visit any place on dated 15.03.2010, 17.03.2010 and 18.03.2010 St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 57 of 106 or that he had prepared all the documents while sitting in the Police Station. Witness has further denied the suggestion that he took signatures and thumb impression of the accused persons on some blank papers and some blank printed performa's or that nothing as alleged was recovered from any of the accused persons. He has also denied the suggestion that accused persons have been falsely implicated in this case as he could not be able to apprehend the actual culprits or that accused persons were lifted from their respective houses and falsely implicated in this case. Witness has further denied the suggestion that accused persons neither robbed the complainant nor stolen anything from him or that the accused persons did not visit the ATM nor withdrawn any money through the ATM card of the complainant. Witness has denied the suggestion that he has falsely planted the laptop of HCL, Compaq, parking slips, katta and cartridge, Alto Car and its keys, motorcycle, knife, mobile and gold articles upon the accused persons. He has denied the suggestion that he had shown the photographs of the accused persons to the complainant Prashant Pandey, Bhagirath TSR driver and Dr. Dharmender, owner of the Alto car before the TIP of the accused persons.
STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:
(50) After completion of prosecution evidence the statements of the accused persons were recorded under Section 313 Cr.P.C.
St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 58 of 106 wherein all incriminating evidence was put to them which they have denied. The accused Chandan has stated that he is innocent and has been falsely implicated after lifting him from his house. According to him, nothing was recovered from his possession and the katta has been planted upon him by the police only to falsely implicate him. He has further stated that his photographs were taken by the police and shown to the complainant and that he was also shown to the complainant in the Police Station.
(51) The accused Karan @ Deva has stated that he is innocent and has been falsely implicated after lifting him from his house. According to him, nothing was recovered from his possession and the alleged recovery has been planted upon him by the police only to falsely implicate him. He has alleged that his signatures and thumb impressions were taken on some blank papers and printed performa's. He has further stated that his photographs were taken by the police and shown to the witnesses before TIP.
(52) Similarly the accused Akash has stated that he is innocent and has been falsely implicated after lifting him from his house. According to him, nothing was recovered from his possession and the alleged recovery has been planted upon him by the police only to falsely implicate him. He has alleged that his signatures and thumb impressions were taken on some blank papers and printed performa's. He has further stated that his photographs were taken by the police and St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 59 of 106 shown to the witnesses before TIP.
(53) The accused Afzal has stated that he is innocent and has been falsely implicated after lifting him from his house. According to him, his signatures and thumb impressions were taken on some blank papers and printed performa's. He has further stated that his photographs were taken by the police and shown to the witnesses before TIP.
(54) The accused Nasir has similarly stated that he is innocent and has been falsely implicated after lifting him from his house. According to him, his signatures and thumb impressions were taken on some blank papers and printed performa's. He has further stated that his photographs were taken by the police and shown to the witnesses before TIP.
(55) Further, the accused Mukesh has stated that he is innocent and has been falsely implicated after lifting him from his house. According to him, his signatures and thumb impressions were taken on some blank papers and printed performa's. He has further stated that his photographs were taken by the police and shown to the witnesses before TIP.
(56) The accused Chandan, Akash, Afzal, Nasir and Mukesh have preferred not to examine any witness in their defence. However, the accused Karan @ Deva has examined his mother Smt. Rajwati as DW1. She has deposed that on 14.3.2010 three persons in civil dress St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 60 of 106 came to her house and took her son Karan @ Deva along with them. She has further deposed that the said persons told her that they were from Police Station Kalyan Puri and when she asked them the reason, they did not tell her anything. According to the witness, thereafter on 14.3.2010 she made a complaint to the Commissioner of Police regarding lifting of his son by the police officials of Police Station Kalyan Puri copy of which complaint is Ex.DW1/A. (57) In her crossexamination by the Ld. Addl. PP for the State the witness has admitted that Karan was involved in other criminal cases and has voluntarily explained that now those cases are over. According to the witness, police had never come to her house previously and a large number of neighbours had gathered when the police had taken Karan with them in an official vehicle but she is unable to tell their names and details. She has admitted that the complaint Ex.DW1/A was got drafted by her from one Advocate and has voluntarily explained that he was the Advocate defending the case of her son in previous case. She has denied the suggestion that she has deposed falsely only to save her son from penal consequences. FINDINGS:
(58) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Amicus Curiae. I have also gone through the written memorandum of arguments filed by the parties St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 61 of 106 and the evidence. My findings are as under:
Delay in registration of FIR:
(59) It has been vehemently argued by the Ld. Defence Counsel that the FIR in question had been registered after a much delay, which delay the victim has not been able to explain thereby raising serious questions on the incident itself. The Ld. Addl. PP on the other hand has placed its reliance on the testimony of the complainant and the explanation given by the victim for delay in approaching the police. (60) However, before coming to the merits of the same, I may observe that the Hon'ble Apex Court in the case of State of Rajasthan Vs. Om Prakash reported in (2002) 5 SCC 745, has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
(61) In the case of Tulshidas Kanolkar Vs. The State of Goa reported in (2003) 8 SCC 590, the Hon'ble Supreme Court has observed as under:
"..... The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstances for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 62 of 106 authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle....."
(62) Now, applying the settled principles of law to the facts of the present case, I may observe that the victim Prashant Pandey has explained that after he was thrown out of the car by the assailants, the assailants had fled away and managed to reach Police Station Usmanpur after asking twothree persons but he was told that the case has to be registered at Police Station Adarsh Nagar after which he was dropped outside the Police Station Adarsh Nagar but he did not enter the Police Station Adarsh Nagar since he was in hurry and had to reach at home due to Holi Festival and later when he came to Delhi on 14.3.2010, he went to Police Station Adarsh Nagar and lodged his report vide Ex.PW2/A. In his crossexamination the victim has St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 63 of 106 specifically explained that firstly he was frightened due to the incident, secondly he want to relax and thirdly he wanted to go home due to Holi festival, which explanation I find is probable and satisfactory given the circumstances of the case. (63) I may observe that Prashant Pandey is not an original resident of Delhi but a resident of Varanasi, Uttar Pradesh. As an outsider he had been robbed and thereafter had been subjected to harassment by the official of Police Station Usman Pur who refused to register a case and rather pushed him to Police Station Adarsh Nagar. I can imagine the state in which this young person an outsider who had been subjected to a shocking incident of armed robbery would have been. Having faced the incident, his first priority would have been to reach at a safe place with his near and dear ones i.e. his house at Varnasi as early as possible and it is only thereafter on 14.3.2010 that he returned back to Delhi that he made a complaint to the police in respect of robbery which explanation is probable and convincing. It is a known fact that most unfortunately our police is most hesitant in registering FIR's and recently even the Hon'ble Supreme Court had taken a note of this alarming situation and warned the police about the need to register the FIR of its won, on having received information regarding commission of a cognizable offence [Ref.: Lalita Kumari Vs. Government of Uttar Pradesh decided on 12.11.2013 by the Constitution Bench of Hon'ble Supreme Court in SLP (Crl.) No. St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 64 of 106 5986/2006, SLP (Crl.) No. 5200/06, Crl. Appeal No. 1410/11, Crl. Appeal No. 1267/07, Contempt Petition (C) No. D26722 of 2008 in Writ Petition (Crl.) No. 68/2008]. Under the given circumstances and the reasons for the delay being apparent the benefit of the delay in registration of FIR cannot be given to the accused persons more so as the delay stands reasonably explained and the accused have been specifically identified by both Prashant Pandey (PW2) and Bhagirath Lal (PW7) and specific roles have been attributed to them. Ocular Evidence:
(64) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed in order to test their reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspect connected with the offence, there is no reason to reject their testimonies.
(65) The entire case of the prosecution revolves around the count given by eye witness who is also the complainant in the present case. The complainant Prashant Pandey has been examined as PW2 and his testimony finds due corroboration on material aspects from the testimony of the TSR Driver Bhagirath Lal (PW7) in whose TSR he St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 65 of 106 was travelling when the incident took place and who is an eye witness to the incident. However, before coming to the testimonies of these witnesses, since the prosecution is placing its heavy reliance on their testimonies (i.e. of Prashant Pandey PW2 and Bhagirth Lal - PW7), it is necessary for this Court to first determine whether what they have deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 66 of 106 and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
(66) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at times under the stress of crossexamination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965).
(67) Further, I may observe that the testimony of a victim/ St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 67 of 106 witness has its own efficacy and relevancy. The fact that the witness sustained injuries on his body would show that he was present at the place of occurrence and had seen the occurrence by himself [Ref.:
Mohar vs. State of UP reported in 2002 AIR (SC) 3279: 2002 Cri.L.J. 4310]. Evidence of injured eye witness cannot be discarded in toto on ground of criminal disposition towards accused or improbability of narrating the details of actual accident. More so, on perusal of evidence tested in light of broad probabilities it can be concluded that eyewitness are natural witnesses and they could not have concocted a baseless case against accused. Merely because injured eyewitnesses are members of one family and close relatives of the deceased there is no ground to reject their evidence. (Ref.: AIR 2003 SC 344). Further, in the case of State of Madhya Pradesh Vs. Mansingh & Ors. reported in 2003 (3) Cri.C.C. 559: 2003 (10) SCC 414 the Hon'ble Supreme Court of India held that evidence of injured witness have greater evidentiary value, unless compelling reasons exist.
(68) Applying the settled principles of law to the facts of the present case, coming first to the testimony of Prashant Pandey (PW2), the relevant portion of his testimony is as under:
"......... I was doing job in Karnal in Bajaj Auto Finance on 27.2.10 I started from Karnal at night time and reached at Karnal Bypass Delhi at about St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 68 of 106 12.30 or 12.45 AM. I hired one TSR No.8224 for going to West Patel Nagar. When TSR reached at Adarsh Nagar flyover and it was about 1.15 AM a maruti car came from behind stopped in front of TSR blocking the way of TSR. 3 or 4 boys got down from the car and one of them pointed a katta/pistole on me. Witness pointed towards the accused wearing red T shirt (Chandan) as the person who pointed katta on him (correctly identified).
Witness pointed towards the accused wearing blue colour T shirt of Rebok (Aakash) as the person who had shown him the knife.
(correctly identified) Witness pointed towards the accused wearing orange shirt (Mohd. Afzal) that he also alighted from the car and came to TSR.
(correctly identified).
I was taken out from the TSR and TSR driver was beaten by those persons. I was asked to sit in the car and I was made to sit in the car. I was having laptop make HCL P38 which was taken from me by occupants of the car. They asked me to take out the purse. I took out my purse and handed over the same to the occupants of the car. I cannot identify the person to whom I handed over my purse. Witness pointed towards accused Karan as the person who was sitting in the car when he was forced to sit in the car. (correctly identified). While I was made to sit in the car on one side of mine Chandan was sitting pointing katta on me and on the other side Aakash was siting pointing knife on me and one of them snatched the laptop St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 69 of 106 from me. There were total five persons besides me. I am not able to recognize the fifth occupant of the car. They also took my mobile phone make Nokia and Motorola. They took ATM card of HDFC bank and asked me to disclose the code and threatened if I did not disclose the code I will be killed. I gave the code to the accused persons. They took me to Pahar Ganj in the car two persons got down from the car and went to ATM of ICICI bank but they do not operate my ATM card from there. Then they took me to Daryaganj at the ATM two accused got down from the car there also they were not able to withdraw the amount by using my ATM card. Then they took me to Mojpur in the same car. There they stopped in front of ATM of Punjab National Bank. Two accused persons got down but as they were not able to operate one more accused got down and went to ATM and withdrew Rs.10,000/ by using my ATM card. Then they went to Durga Puri at the ATM of SBI and from there they also withdrew Rs.10,000/ by using my ATM card. Then they took me to Usman Pur Seema Puri. There was a big chowk they stopped at red light signal they threatened me that if I disclosed to anybody I would be killed. They returned my purse and pushed me out of the car and fled away in the car. I reached PS Usman Pur after asking two or three persons. They told me that case is to be registered in PS Adarsh Nagar and they took me to PS Adarsh Nagar. They dropped me out side the PS Adarsh Nagar as I was in hurry and have to reach at home due to Holi festival I did not enter PS Adarsh Nagar and went St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 70 of 106 to my home. I came to Delhi on 14.3.10 and went to PS Adarsh Nagar and lodged my report vide my statement Ex.PW2/A having my signature at point A. I was also called for TIP of accused persons. I handed over the receipt of the laptop to the police which was seized by the police vide seizure memo Ex.PW2/B. The receipt is Ex.PW2/C. I was told that Laptop was recovered. I identify the Laptop in the TIP. I also got released the Laptop on superdari. I had pointed out the place of occurrence to the police.
At this stage Ld. Addl. PP wants to put leading question on the point of identity of accused Mukesh.
Ld. APP pointed out accused Mukesh to the witness and asked whether he was one of the accused. Witness stated that yes he was one of the accused. Identity of laptop is not disputed and none of the accused claimed the laptop....."
(69) The victim Prashant Pandey (PW2) has been cross examined at length wherein he has supported what he has stated in his examination in chief. He has not only identified the accused Chandan, Karan @ Deva, Akash, Afzal and Mukesh but has also attributed specific roles to them. He has identified the accused Chandan as the person who pointed katta on him; accused Aakash as the person who had shown him the knife; accused Mohd. Afzal as the person who also alighted from the car and came to TSR and accused Karan as the person who was siting in the car when he was forced to sit in the car. St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 71 of 106 He has specifically deposed that while he was made to sit in the car, on his one side the accused Chandan was sitting pointing katta on him and on the other side Aakash was siting pointing a knife on him and one of them snatched the laptop from him and Mukesh as one of the assailants.
(70) The testimony of Prashant Pandey finds due corroboration from the testimony of TSR Driver Bhagirath Lal (PW7) who is an eye witness to the incident as he was the driver of the TSR which the victim Prashant Pandey had boarded and at the time of the incident he (Bhagirath Lal) was also dragged out of the TSR and threatened by the same assailants who robbed Prashant Pandey. The relevant portion of the testimony of Bhagirath Lal (PW7) is reproduced as under:
"...... Earlier I used to reside at H.No.2110, Hari Enclave, Alipur, Delhi, alongwith my family and I am a TSR driver by profession.
On the intervening night of 2728.02.2010, I had taken the TSR no. DL1RL8224 on rent from one Rakesh Nanda and was waiting for the passengers at Prepaid Booth of GTK Bye Pass. At about 12.30 AM, one passenger with a prepaid booth slip of West Patel Nagar came to me and the said passenger boarded in my TSR and I moved towards West Patel Nagar. Via Outer Ring Road and Mukund Pur Red Light, when I was ascending Azad Pur Flyover, there one Maruti Alto car came from my right side and blocked my way. Three boys alighted from the said car. One of them gave St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 72 of 106 me punch on my face and took out a country made pistol. Rest of the two were having their hands in their pocket. The said boy who was having a Katta in his hand, showed Katta to the passenger of my TSR and asked him to alight from the TSR. They all made the passenger to alight from my TSR. There was a bag in the hand of the passenger, containing laptop. One of the boy snatched the said bag containing laptop from the hand of that passenger and they all made the said passenger to sit in their Alto car and they also threatened me to keep quite. I was very much frightened and they drove their Alto car at a very fast speed.
On 07.04.2010, I identified all the abovesaid three accused persons in judicial TIP at Rohini Jail.
At this stage, one envelope sealed with the seal of DW available on judicial file opened. It is found containing TIP proceedings of four accused by witness Prashant Pandey, as it is not relevant with the present witness, therefore, the same are kept in the judicial file as it is.
At this stage, another envelope sealed with the seal of SG available on the judicial file. Same is opened and the TIP proceedings of accused Karan @ Deva, Chandan @ Babbar and Akash by the witness Bhagirath Lal taken out and shown to the witness. He identifies his signatures at points A on the abovesaid three TIP proceedings. The TIP proceedings of the abovesaid accused persons are respectively Exs.PW7/A, PW7/B and PW7/C. Witness identifies all the three accused persons St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 73 of 106 namely Karan @ Deva, Chandan @ Babbar and Akash, today present in the Court, correctly, who committed the offence and he later on identified them in the jail, but I cannot tell about the role played by abovesaid three accused.
The witness identifies the said Maruti Alto car in the photographs Exs. P5/B, P5/C and P5/D, available on judicial file.
At this stage, Ld. Addl. PP requests to cross examine the witness as he is resiling from his previous statement.
Heard. Allowed.
Xxxxx by Ld. Addl. PP.
Question : I put it to you that at the time of commission of offence, accused Chandan was having a country made pistol in his hand; accused Akash was having a knife in his hand and they both pointed the Katta and knife towards the passenger of my TSR and accused Karan snatched the bag, containing laptop from that passenger?
Answer : " Main Pakke Taur Pe Nahin Kah Sakta".
It is wrong to suggest that I am not deliberately telling the role played by abovesaid three accused, because of their fear......"
(71) This witness Bhagirath Lal has been exhaustively cross examined and he stood his ground. He has supported the version given by the victim Prashant Pandey i.e. from the time he boarded the TSR, till the time Prashant was abducted by the assailants. (72) Ld. Defence Counsel has vehemently argued that the St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 74 of 106 testimonies of Prashant Pandey (PW2) and Bhagirath Lal (PW7) cannot be relied upon as they suffer from material contradictions. He has pointed out that the witness Prashant Pandey (PW2) is unable to give the details of the Maruti car in which he was taken i.e. whether it was old or new one and the various details regarding the time when he was taken to various places. It is pointed out that Prashant Pandey has also not been able to tell the minute details relating to the names of the places where he was taken, as to who were sitting in the car and who got down, how much time had been taken to go to various places, the distance between the various places. He has further pointed out that the victim Prashant Pandey (PW2) has not been able to identity the accused Chandan @ Babar.
(73) The Ld. Defence Counsel has also pointed out the various discrepancies and contradiction in the testimonies of the police witnesses with regard to the manner of apprehension and arrest of the accused persons, the documentation and the recovery affected. He has argued that on the one hand the Investigating Officer has in his examination in chief deposed that after 15.3.2010 on the next day i.e. 16.03.2010 he went to the house of Karan and on the same day accused Nasir got recovered keys and maruti Alto car whereas other police officials have deposed that it was on 17.3.2010 that the Maruti car and its keys were recovered. He has argued that all the contradictions and discrepancies would be fatal to the prosecution case. St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 75 of 106 (74) On the other hand the Ld. Addl. PP for the State has argued that all the contradictions and discrepancies as pointed out by the Ld. Defence Counsel are minor in nature and would not go to the root of the prosecution case since the victims have both identified the accused and have corroborated each other on material aspects relating to the incident of abduction of victim Prashant Pandey. (75) I have considered the rival contentions and I may observe that in the case of State of H.P. Vs. Lekhraj and another reported in JT 1999 (9) SC 43 it was observed by the Hon'ble Supreme Court that: ".....In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.........
.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial."
(76) Further, in the case of Surender Singh Vs. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under : ".......It is wellestablished principle of law that every discrepancy in the witness statement cannot be St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 76 of 106 treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity...."
(77) As far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish v.State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that when the discrepancies are comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also, in the case of State of Rajasthan Vs. Kalki, reported in (1981)2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person. (78) Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 77 of 106 Perhaps an untrue witness who is well tutored can successfully made his testimony totally nondiscrepant. Courts have to bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. Too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. (79) The Hon'ble Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. The observations made in the case of Tehsildar Singh Vs. State of UP reported in AIR 1959 SC 1012 were later on reaffirmed by the Hon'ble Supreme Court in the cases of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1) and Leela Ram Vs. State of Haryana reported in AIR 19997 SC 3717, wherein the Hon'ble Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses:
(a) While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 78 of 106 deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
(b) If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
(c) When eye witness is examined at length it is quite possible for him to make some discrepancies.
But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
(d) Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 79 of 106
(e) Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
(f) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(g) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(h) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(i) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(j) In regard to exact time of an incident or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 80 of 106 moment at the time of interrogation and one cannot expect people to make very precise or reliable estimates in such matters. Again it depends on the timesense of individuals which varies from person to person.
(k) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(l) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
(m) A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contraction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 81 of 106 (80) It should be remembered that human behaviour varies from person to person and different people react and behaved differently in a different situation. How person can behave in a particular situation cannot be predicted. (Ref.: State of UP Vs. Devender Singh reported in AIR 2009 SC 3690).
(81) Applying the settled principles of law to the facts of the present case I may observe that there is an element of surprise in the incident where five unknown boys armed with deadly weapons stopped the TSR of the victim, kidnapped him, put him in a Maruti Car and take him around to city including the ATMs at various places from where the accused withdrew the amount of Rs.20,000/, after which they threw him out of the car. It is only natural that he would have extremely shocked and he cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span and is liable to get confused, or mixed up when cross examined later on. He has specified the details of some of the places which he had noticed and remembered. It should not be forgotten that the victim is not a resident of Delhi but of Varanasi and hence is not expected to know the details of various places precisely. Further, being in a state of threat being given by the assailants who were armed with firearms (katta) and deadly weapons i.e. knife it still goes to the credit of this witness that he did remember major aspects and details under the given circumstances and thereafter to identify the accused. St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 82 of 106 [Ref.: Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1)].
(82) Further, in so far as the discrepancies in the testimonies of the various police witnesses are concerned with regard to the timings, presence of a particular police official at a particular time, discrepancies of the house of the accused etc., I am of the considered view that the same are too immaterial and irrelevant as it is the evidence of the witnesses regarding the commission of the offence by the accused which is more important than the investigation conducted. Even otherwise, the alleged contradictions are not fatal to the prosecution case in any manner as the same relate to the investigations including going of the police officials to the house of the accused etc. Merely due to the contradictions in the evidence regarding investigation or even if there is faulty investigation, the same does not absolve the accused of his liability as it is the evidence of the material and star witnesses which is more important than the evidence of the witnesses of the investigation (Ref. Rabinder Kumar Pal @ Dara Singh Vs. Republic of India reported in AIR 2011 SC 1436). This being the background, I hereby hold that the contradictions and discrepancies so pointed out by the Ld. Defence Counsels would not be fatal to the prosecution case. Even otherwise, assuming that the Investigating Agency has not been as professional while investigating the case as it ought to have been and has committed certain lapses St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 83 of 106 during the investigations of the case, even then the same would not assist the accused in any manner once the Court is satisfied with the regard to the reliability of the evidence which has come on record. Time and again the Hon'ble Apex Court while dealing with the cases of omission and commission, enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party. [Ref.: Paras Yadav Vs. State of Bihar reported in AIR 1999 SC 644, Zahira Habibullah Sheikh & Anr. Vs. State of Gujarat & Ors. reported in 2006 (3) SCC 374 and Dayal Singh & Ors. vs State Of Uttaranchal in Criminal Appeal No.529 of 2010 decided on 3.8.2012]. (83) In so far as the recovery of the Alto Car bearing No. DL 1C L 2884 and its keys at the instance of the accused Nasir is concerned, Dr. Dharmender (PW5) has duly proved that on 06.02.2010 at about 11:30 PM while he was going back to his residence in his car DL1CL2884 and when he reached on the road between Sunder Nagri and the DDA flats of GTB enclave, one TATA 407 was stopped in front of his car blocking his way on which he stopped his car and St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 84 of 106 got down and the accused Karan and Chandan fled away with his car on which he lodged his report at Police Station nand Nagri. Pursuant to the same FIR No. 33/2010, under Section 379 IPC was registered at Police Station Nand Nagri. Therefore in so far as as the merits of the allegations in respect of the recovery of this car is concerned, I refrain myself from making any observations in this regard, the same being a subject matter of adjudication in FIR No.33/2010 and I am confining myself to the aspect of identity of the accused Nasir as one of the assailant in the present case. I may observe that both the victim Prashant Pandey (PW2) and the TSR Driver Bhagirath Lal (PW7) have not been able to identify the accused Nasir as one of the assailants. (84) I may specifically note that this Prashant Pandey has correctly identified the accused Chandan in the Court as the person who pointed katta on him and while he was made to sit in the car, it was the accused Chandan who was sitting on his one side by pointing a katta on him. He further identified the accused Karan @ Deva at the first instance in Judicial Test Identification Parade vide proceedings Ex.PX2 on 22.3.2010 and also in the Court as the person who was siting in the car when he was forced to sit in the car. The victim has also identified the accused Akash at the first instance in Judicial Test Identification Parade on 22.3.2010 vide proceedings Ex.PX1 and also in the Court as the person who had shown him a knife and was sitting on his other side while pointing a knife on him. St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 85 of 106 He has further identified the accused Afzal at the first instance on 16.7.2010 during Judicial Test Identification Parade vide proceedings Ex.PW13/R and also in the Court as the person who alighted from the car and came to TSR. The victim Prashant Pandey has also identified the accused Mukesh on 16.7.2010 in Judicial Test Identification Parade vide proceedings Ex.PW13/S and also in the Court as one of the assailants.
(85) Further, even Bhagirath Lal has at the first instance identified the accused Karan Deva, Chandan and Akash in the Judicial Test Identification Parade proceedings which are Ex.PW7/A, PW7/B and Ex.PW7/C respectively and also similarly identified them in the Court. Bhagirath Lal (PW7) has explained that when the incident had taken place he was on the driver's seat and the passenger was pulled out by the assailant. Again, I may observe that there is an element of surprise, shock and horror at the time of offence and given circumstances of the case, Bhagirath Lal would have been in a position only to identify those person who had approached him or had assaulted him. In so far as Prashant Pandey (PW2) is concerned he was the person who had been lifted, kidnapped and taken in the vehicle by the assailants. He remained with the assailants in the car throughout i.e. till such time he was thrown out of the car at Usmanpur and had an every opportunity to closely observe them throughout the St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 86 of 106 journey and hence his identification cannot be doubted or faulted. (86) Both the victim Prashant Pandey (PW2) and TSR Driver Bhagirath Lal (PW7) have no history of being known to any of the accused person nor there is any kind of animosity and therefore, under these circumstances there is no reason for them to have falsely implicate any of the accused persons. In so far as the accused Nasir is concerned neither the witness Prashant Pandey (PW2) nor the other witness Bhagirath Lal (PW7) have identified him as one of the assailant. Had this been a false case, they would have also implicate the accused Nasir which is not the case. The victim/ complainant has identified the accused persons as the persons who have actually participated in the crime and this is another reason why it is difficult to disbelieve the testimony of the victim Prashant Pandey and Bhagirath Lal because had they been tutored or shown the accused previously by the police, they would also have named and involved Nasir which is not the case. Both Prashant Pandey and Bhagirath Lal have corroborated each other on material particulars and hence I find the testimonies of both these witnesses Prashant Pandey (PW2) and Bhagirath Lal (PW7) credible, authentic and reliable. (87) Further, the Ld. Defence Counsel has vehemently argued that in so far as the charge under Section 365 Indian Penal Code is concerned, the same is not made out since the ingredients of the same do not stand fulfilled as it applies to only those cases where the victim St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 87 of 106 has been confined against his will. I am not convinced by the argument of the Ld. Defence Counsel advanced before me. It is writ large that the victim had been forcefully dragged out from the TSR by the accused persons and thereafter he was made to sit in the car and taken to various places. If this is not confinement against will then what else would it be?
(88) This being the background, I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Chandan @ Babar, Karan @ Deva, Akash, Afzal and Mukesh of having abducted and wrongfully confined the victim Prashant Pandey in furtherance of their common intention and of having committed dacoity (five persons being involved in the incident of robbery) of mobile phone, laptop and also withdrew Rs. 20,000/ by using the ATM Card of the victim, for which they are liable for the offence under Section 365 Indian Penal Code and Section 395 Indian Penal Code. Further, it has been established that during the commission of dacoity the accused Akash used a deadly weapon i.e. knife which he showed to the victim Prashant Pandey and the accused Chandan @ Babar also used a deadly weapon i.e. a country made pistol which he showed to the victim for which both the accused Akash and Chandan @ Babar are also liable for the offence under Section 397 Indian Penal Code.
St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 88 of 106 Apprehension and arrest of the accused and recovery:
(89) The case of the prosecution is that after the registration of the FIR, during investigations on 15.2.2010 pursuant to a secret information the accused Chandan, Karan @ Deva and Akash were apprehended from Gagan Cinema near Sunder Nagri and from the personal search of accused Chandan one country made pistol having one live cartridge was recovered which were taken into possession.
The accused Karan @ Deva was having a jute bag which was containing a laptop which the accused Karan @ Deva disclosed to be belonging to the victim of this case, after which the said laptop was seized. Further, from the possession of accused Akash, gold jeweleries and one mobile phone make NOKIA 7210 C was recovered. Pursuant to the disclosure statements of the accused Chandan, Akash and Karan @ Deva, the accused Nasir was arrested from near Harsh Vihar Police Booth after which the accused Nasir got recovered one motorcycle from the DLF Parking, at Bhopra Border, Sahibabad, UP which motorcycle was bearing No. DL 3S BG 8719 on the back side and on the front side DL 3S B 8719 and on checking the engine and chasis number of the motorcycle, it was found that the original number of the motor cycle was DL 3S BG 6715 after which the said motorcycle was seized. On the next day 16.2.2010 the accused Nasir also got recovered the Maruti Alto car and its key which car was also seized. Further, at the instance of the accused Karan one laptop of St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 89 of 106 Compaq was recovered from the house number 115, Gali No.3, Jwala Nagar, Shahdara, Delhi belonging to the victim Prashant Pandey. Thereafter on 12.7.2010 the accused Mukesh and Afzal were arrested from the Court.
(90) Ld. Defence Counsel has vehemently argued that the apprehension and arrest of the accused persons has not been proved by the prosecution as they were illegally confined by the police for which benefit of the same should be given to them. It is further argued that in so far as the recovery of laptop from the accused Karan @ Deva is concerned, the same has also not been established in terms of the provisions of Section 27 of Evidence Act. Ld. Counsel has further argued that despite opportunity the Investigating Officer has not obtained the finger prints from the car in question to connect the accused nor he obtained the CCTV footage of the ATM from where the accused had allegedly withdrawn the amount by using the ATM card of the victim to prove the same.
(91) In this regard I may observe that no doubt the Investigating Officer conducted the investigations in a most casual manner and not as per the expected standards, yet under the given circumstances the victim having conclusively established the identity of the accused persons, the benefit of the lapses committed by the Investigating Officer cannot be given to the accused persons. I may also observe that merely because there are contradictions in the evidence regarding St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 90 of 106 investigation or even if there is faulty investigation, the same would not absolve the accused of his liability as it is the evidence of the material and star witnesses which is more important than the evidence of the witnesses of the investigation and in this regard I am supported by the Hon'ble Supreme Court who in the case of State of U. P. Vs. Jagdeo & Others., reported in (2003) 1 Supreme Court Cases 456 and also in the case of Rabinder Kumar Pal @ Dara Singh Vs. Republic of India reported in AIR 2011 SC 1436 and recently reaffirmed in the case of Dayal Singh & Ors. vs State Of Uttaranchal in Criminal Appeal No.529 of 2010 decided on 3.8.2012 observed that:
"...... Mere faulty investigations cannot be a ground for acquittal of the accused. For the fault of the prosecution the perpetrators of a ghastly crime cannot be allowed to go scotfree........"
(92) I may further observe that the defence has not been able to prove that the ATM from where the accused have allegedly withdrew the amount by using the ATM Card of the victim, was having the CCTV Footage installed in the same. A suggestion, though, has been made to the Investigating Officer who states that the CCTV Footage was not very clear, confirms that perhaps the CCTV Camera was installed in the ATM and this Court can take a judicial note of the fact that there was a delay in giving the information of the incident to the police and therefore under the given circumstances even if the CCTV St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 91 of 106 Camera was installed at the ATM it would not have been easy to retrieve the footage on account of delay.
(93) Further, it is argued that no investigations have been conducted with regard to the injuries received by Bhagirath Lal (PW7) who had claimed that he had been given a punch and hence incident itself appears to be doubtful. I may observe that Zora Singh (PW10) the registered owner of the TSR bearing No. DL1RL8224 has proved that the said TSR was given to driver Bhagirath for plying the same, which proves that on the date of incident it was Bhagirath Lal (PW7) who was driving the TSR in which the victim was travelling. I may also observe that in so far as the crossexamination the witness Bhagirath Lal (PW7) no suggestion has been put to the witness Bhagirath Lal on the aspect of his having received any injury which required treatment or hospitalization. The accused themselves having failed to put this question to the witness, now cannot take the advantage of the same and there can be no presumption of the witness having received injuries or requiring treatment for the same and that too when he claimed that he has not received any injuries. Hence, I find no merit in the ground so raised by the Ld. Defence Counsel. (94) In so far as the apprehension and arrest of the accused persons is concerned, the same has been duly proved by the members of the police party i.e. HC Pritam (PW8), Inspector Brij Pal Singh (PW11), Ct. Rahul (PW12) and SI Kuldeep Singh (PW13). All these St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 92 of 106 witnesses have also proved that a country made pistol with one live cartridge was recovered from the possession of accused Chandan @ Babbar and the robbed laptop belonging to the victim Prashant Pandey was recovered from the possession of accused Karan @ Deva. (95) Ld. Defence Counsel has vehemently argued that no public witness was joined at the time of apprehension and arrest of the accused and the recovery of laptop and country made pistol. I have considered the submissions made before me and in this regard I may observe that it is common experience that public persons are generally reluctant to join police proceedings and there is general apathy and indifference on the part of public to join such proceedings. This position of law was reiterated in Aslam and Ors. (Mohd.) Vs. State reported in 2010 III AD (Delhi) 133.
(96) It was observed by Hon'ble High Court that reluctance of the citizens to join police proceedings is well known and needs to be recognized. It cannot be disputed that public does not want to get dragged in police and criminal cases and wants to avoid them, because of long drawn trials and unnecessary harassment. Similar view was taken in Manish vs. State, 2000 VIII AD (Scheduled Caste/ Scheduled Tribes (Prevention of Atrocities) Act, 1989) 29 and in A. Bhai Vs. State, AIR 1989 SC 696, where it was held that we cannot be oblivious to the reluctance of the common man to join such raiding parties organized by the police, lest they are compelled to attend police St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 93 of 106 station and Courts umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit. (97) As observed by the Hon'ble Supreme Court in Tahir vs. State reported in (1996) 3 SCC 338, no infirmity attaches to the testimony of police officials merely because they belong to the police force. It was observed in Aner Raja Khima Vs. The State of Saurashtra, reported in AIR 1956 SC 217 that the presumption that a person acts honestly and legally applies as much in favour of police officers as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof. These two authorities were also relied upon by Hon'ble High Court in Aslam & Ors (Mohd.) Vs. State, 2010 III AD (Delhi) 133. (98) Applying the settled principles of law to the facts of the present case it is evident that merely because the public witnesses have not been joined in the investigations would not be fatal to the case of the prosecution. Moreover, there is no reason to disbelieve the testimonies of police officials regarding recovery of country made pistol from the possession of accused Chandan @ Babar and laptop belonging to the victim from the possession of accused Karan @ Deva. Their testimonies cannot be rejected merely because they happen to be police officers.
St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 94 of 106 (99) In so far as the aspect of recovery of the country made pistol from the possession of accused Chandan @ Babar is concerned, the same has been duly proved by the members of the police party i.e. HC Pritam (PW8), Inspector Brij Pal Singh (PW11) and SI Kuldeep Singh (PW13). The ballistic report Ex.PW13/T which is perse admissible under Section 293 Cr.P.C. establishes that the country made pistol of .315 bore" Ex.PZ and the cartridge Ex.PZ1 are firearm/ ammunition as defined in the Arms Act. Further, the sanction under Section 39 of Arms Act, 1959 which is Ex.PW13/U has been duly proved by the Investigating Officer SI Kuldeep Singh (PW13), which has gone uncontroverted.
(100) Further, the identity of the laptop recovered from the possession of accused Karan @ Deva has been duly established the victim Prashant Pandey. He has proved that he had given the receipt of the said laptop which is Ex.PW2/C to the Investigating Officer who seized the said receipt vide memo Ex.PW2/B which clearly mentions the details of the laptop i.e. HCL P38, Sl. No. 3093AX322633. Here, I may observe that no date has been mentioned on the seizure memo of the receipt of Laptop. Though this issue has not been raised by the Ld. Defence Counsel yet the case diaries confirms that it was on 14.10.2010 that the victim Prashant Pandey had come to the Police Station and handed over the receipt of laptop to the Investigating St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 95 of 106 Officer who seized the same and hence there is no reason to doubt the same. The recovery of the said laptop from the possession of accused Karan @ Deva has been duly proved by HC Pritam (PW8), Inspector Brij Pal Singh (PW11), Ct. Rahul (PW12) and SI Kuldeep Singh (PW13). Further, the accused Karan @ Deva has not been able to explain the possession of the said laptop and when the entire incriminating evidence was put to him, he has simply denied the same. (101) This being the background, I hereby hold that the prosecution has been able to prove and establish the recovery of country made pistol with one live cartridge from the possession of accused Chandan @ Babar for which he is liable for the offence under Section 24/54/59 of Arms Act.
(102) The prosecution has also been able to prove and establish the recovery of laptop belonging to the victim Prashant Pandey from the possession of accused Karan @ Deva. However, since the accused Karan @ Deva has been identified as the same person who had committed dacoity upon the complainant/ victims, hence technically the provisions of Section 412 Indian Penal Code are not separately made out as the ingredients of Section 412 Indian Penal Code are covered within the offence of Dacoity as defined under Section 391 Indian Penal Code.
St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 96 of 106 Allegations against the accused Nasir - Not Established beyond doubt:
(103) In so far as the accused Nasir is concerned, it is evident that he has been arrested pursuant to the disclosure statements of the accused Chandan, Akash and Karan @ Deva. Pursuant to his disclosure statement which is Ex.PW8/Q the accused Nasir got recovered one motorcycle bearing fake number DL 3S BG 8719 on the back side and on the front side DL 3S B 8719 and on checking the engine and chasis number of the motorcycle, it was found that the original number of the motor cycle was DL 3S BG 6715 after which the said motorcycle was seized. Further, the accused Nasir also got recovered the key of the stolen car Alto used in this incident was from the house of Bhagwan Dass at Rasgulle wali Gali, Gagan Vihar, Bhopra Border, Delhi and also got recovered the Maruti Alto Car bearing no. DL 1C L 2884 from in front of H.No. F2/65, Sunder Nagri, which car and its keys were thereafter seized. I may observe that the car was recovered from an open place i.e. outside the house No. F2/65, Sunder Nagri which is accessible to all and hence how much of reliance can be placed on the recovery of the said car used in the offence, can only be seen by the competent court in case FIR No. 33/2010, under Section 379 IPC, Police Station Nand Nagri. However, in the present case the accused Nasir has not been identified by the victim Prashant Pandey (PW2) and Bhagirath Lal (PW7) either in the St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 97 of 106 Judicial Test Identification Parade or in the Court as one of the assailants and hence under the given circumstances the allegations against him of having participated in the actual incident of robbery/ dacoity does not stand established.
(104) This being the background, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Nasir beyond reasonable doubt and hence benefit of doubt is liable to be given to the accused Nasir.
FINAL CONCLUSION:
(105) In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 98 of 106 hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(106) Applying the above principles of law to the present case, from the testimonies of the various prosecution witnesses, the following aspects stand established:
➢ That the victim/ complainant Prashant Pandey was doing the job in Karnal in Bajaj Auto Finance.
➢ That on 27.02.2010 Prashant Pandey started from Karnal at night time and reached at Karnal bypass Delhi at about 12:30 or 12:45 AM where he hired one TSR No. 8224 driven by Bhagirth Lal for going to West Patel Nagar.
➢ That at about 1:15 AM (midnight) when the TSR reached at Adarsh Nagar flyover, a Maruti car came from behind and stopped in front of TSR blocking the way of TSR and three - four boys got down from the car.
➢ That the one of the boy i.e. accused Chandan @ Babar pointed a katta/ pistol on Prashant Pandey whereas another boy i.e. Akash had shown him the knife and other boy i.e. accused Mohd. Afzal also alighted from the car and came to TSR. St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 99 of 106 ➢ That Prashant Pandey was taken out from the TSR and the TSR driver Bhagirath Lal was also beaten by the accused, after which Prashant Pandey was made to sit in the car.
➢ That Prashant Pandey was having a laptop make HCL P38 which was taken from him by the accused after which the accused asked him to take out the purse on which he (Prashant Pandey) took out his purse and handed over the same to the accused persons.
➢ That accused Karan was also sitting in the car and while Prashant Pandey was made to sit in the car Chandan was sitting by pointing a katta on him on one side whereas on the other side accused Akash was sitting pointing knife on him and one of them snatched the laptop from him.
➢ That there were total five assailants in the car and they took the mobile phone make NOKIA and MOTOROLA, ATM Card of HDFC bank from the victim Prashant Pandey.
➢ That the assailants asked Prashant Pandey to disclose the code and threatened if he did not disclose the code he would be killed on which Prashant Pandey disclosed the code to the accused persons.
➢ That the accused persons took Prashant Pandey to Pahar Ganj in the car where two persons got down and went to ATM of ICICI bank but they could not operate his ATM card from there. St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 100 of 106 ➢ That thereafter the accused took Prashant Pandey to Daryaganj at the ATM where two accused got down from the car but there also they were not able to withdraw the amount by using his ATM card.
➢ That thereafter the accused took Prashant Pandey to Mojpur in the same car where there they stopped in front of ATM of Punjab Nation Bank and two accused persons got down but as they were not able to operate, one more accused got down and went to ATM and withdrew Rs.10,000/ by using his ATM card. ➢ That then the accused went to Durgapuri at the ATM of SBI and from there they also withdrew Rs.10,000/ by using the ATM card of Prashant Pandey.
➢ That thereafter the accused took Prashant Pandey to Usman Pur Seema Puri where there was a big chowk and threw him out of the car after threatening him that if he disclosed to anybody he would be killed, and then fled away in the car. ➢ That Prashant Pandey reached Police Station Usmanpur after asking two or three persons.
➢ That Prashant Pandey was told that case has to be registered in Police Station Adarsh Nagar and the officials of Police Station Usmanpur took him to Police Station Adarsh Nagar and dropped him outside the Police Station of Adarsh Nagar. ➢ That since Prashant Pandey was in hurry and had to reach at St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 101 of 106 home due to Holi festival, therefore he did not enter Police Station Adarsh Nagar and went to his home.
➢ That Prashant Pandey came to Delhi on 14.03.2010 and went to Police Station Adarsh Nagar where he lodged his report. ➢ That on the basis of the statement of Prashant Pandey the present case was registered.
➢ That Prashant Pandey also handed over the receipt of the laptop to the police which was seized by the police. ➢ That during investigations the statement of TSR Driver namely Bhagirath Singh was recorded.
➢ That on 15.2.2010 pursuant to a secret information the accused Chandan, Karan @ Deva and Akash were apprehended from Gagan Cinema near Sunder Nagri.
➢ That from the personal search of accused Chandan one country made pistol having one live cartridge was recovered which were taken into possession.
➢ That the accused Karan @ Deva was having a jute bag which was containing a laptop which the accused Karan @ Deva disclosed to be belonging to the victim of this case, after which the said laptop was seized.
➢ That from the possession of accused Akash, gold jeweleries and one mobile phone make NOKIA 7210 C was recovered. ➢ The accused Chandan, Karan @ Deva and Akash were arrested St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 102 of 106 and pursuant to their disclosure statement, the accused Nasir was arrested from near Harsh Vihar Police Booth. ➢ That Nasir also disclosed his involvement in the present case after which Nasir was arrested in this case. ➢ That at the instance of the accused Karan one laptop of Compaq was recovered from the house number 115, Gali No.3, Jwala Nagar, Shahdara, Delhi.
➢ That on 22.03.2010 during Test Identification Parade the victim Prashant Pandey identified the accused Akash and Karan @ Deva.
➢ That on 7.4.2010 the TSR Driver Bhagirath identified the accused Chandan, Karan @ Deva and Akash in Judicial Test Identification Parade.
➢ That on 12.7.2010 the accused Mukesh and Afzal were arrested after taking permission from the Court.
➢ That on 15.7.2010 and 16.7.2010 during Judicial Test Identification Parade the victim Prashant Pandey identified the accused Mukesh and Afzal.
(107) The victim Prashant Pandey has not only identified the accused Chandan, Karan @ Deva, Akash, Afzal and Mukesh but has attributed specific role to them. He has identified the accused Chandan as the person who pointed a katta on him; accused Aakash St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 103 of 106 as the person who had shown him the knife to him; accused Mohd.
Afzal as the person who also alighted from the car and came to TSR; accused Karan as the person who was sitting in the car when he was forced to sit in the car and accused Mukesh as one of the assailant. (108) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (109) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link. St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 104 of 106 (110) This being the background, I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Chandan @ Babar, Karan @ Deva, Akash, Afzal and Mukesh of having abducted and wrongfully confined the victim Prashant Pandey in furtherance of their common intention and of having committed dacoity (five persons being involved in the incident of robbery) of mobile phone, laptop and also withdrew Rs. 20,000/ by using the ATM Card of the victim, for which they are held guilty of the offence under Section 365 IPC and Section 395 IPC. Further, it has been established that during the commission of dacoity the accused Akash used a deadly weapon i.e. knife which he showed to the victim Prashant Pandey and the accused Chandan @ Babar also used a deadly weapon i.e. a country made pistol which he showed to the victim for which both the accused Akash and Chandan @ Babar are also held guilty of the offence under Section 397 IPC. However, the accused Afzal is acquitted of the charge under Section 397 IPC. (111) I also hold that the prosecution has been able to prove and establish the recovery of country made pistol with one live cartridge from the possession of accused Chandan @ Babar for which he is liable for the offence under Section 25/54/59 of Arms Act. Further, I hereby hold that the prosecution has further been able to prove and establish the recovery of laptop belonging to the victim Prashant St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 105 of 106 Pandey from the possession of accused Karan @ Deva which he dishonestly retained. However, since the accused Karan @ Deva has been identified as the same person who had committed dacoity upon the complainant/ victims, hence technically the provisions of Section 412 Indian Penal Code are not separately made out as the ingredients of Section 412 Indian Penal Code are covered within the offence of Dacoity as defined under Section 391 Indian Penal Code. All the accused accused namely Chandan @ Babar, Karan @ Deva, Akash, Mukesh and Afzal are accordingly convicted.
(112) However, in so far as the accused Nasir is concerned, he has not been identified by the victim Prashant Pandey (PW2) and Bhagirath Lal (PW7) either in the Judicial Test Identification Parade or in the Court. This being the background, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Nasir beyond reasonable doubt and hence benefit of doubt is given to the accused Nasir who is acquitted of the charges under Section 365 and 395 Indian Penal Code. His surety be discharged as per rules.
(113) Be listed for arguments on sentence qua the convicts Chandan @ Babar, Karan @ Deva, Akash, Mukesh and Afzal on 28.11.2013.
Announced in the open court (Dr. KAMINI LAU)
Dated: 22.11.2013 ASJII(NW)/ ROHINI
St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 106 of 106
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NOTHWEST): ROHINI COURTS: DELHI
Session Case No. 123/2013
Unique Case ID No.: 02404R0168572010
State Vs. (1) Chandan @ Babar
S/o Suresh Chand
R/o Jhuggi No. N36,
New Seema Puri, Road No.64,
Delhi
(Convicted)
(2) Karan @ Deva
S/o Ram Singh
R/o Gali No. 13, House No. 15,
Jwala Nagar East, Delhi
(Convicted)
(3) Akash
S/o Sohan Lal
R/o B782, Gagan Vihar,
Near Chamunda Mandir,
Bhopara, Sahibabad, Ghaziabad,
Uttar Pradesh
(Convicted)
(4) Afzal
S/o Umar
R/o M227, Gali No.8,
Sunder Nagri, Delhi
(Convicted)
St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 107 of 106
(5) Nasir
S/o Ali Hassan
R/o Rali No. 10, Near Yadav
Dairy, Gagan Vihar Bhopara,
Sahibabad, Ghaziabad,
Uttar Pradesh
(Acquitted)
(6) Mukesh
S/o Ram Babu
R/o E138, Vijay Vihar,
Sector4, Rohini, Delhi
(Convicted)
FIR No.: 62/2010
Police Station: Adarsh Nagar
Under Section: 365/395/397/412/120B IPC
Date of Judgment: 22.11.2013
Arguments concluded on: 9.12.2013
Date of Sentence: 9.12.2013
APPEARANCE:
Present: Sh. Vinod Sharma, Substitue Addl. Public Prosecutor for
the State.
All the convicts namely Chandan @ Babar, Karan @ Deva, Akash, Mukesh and Afzal in Judicial Custody with Sh. B.B. Dhingra Advocate/ Amicus Curiae.
St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 108 of 106 ORDER ON SENTENCE:
As per the allegations, on 28.2.2010 between 10:00 AM to 4:00 AM at Azadpur Flyover, Road No. 51, Azadpur, Delhi all the accused namely Chandan @ Babar, Karan @ Deva, Akash, Afzal, Nazir and Mukesh in furtherance of their common intention abducted the victim Prashant Pandey and wrongly confined him in a Maruti Car and robbed him of his mobile phone, laptop and withdrew Rs.20,000/ by using his ATM Card. Further, it has been alleged that the accused Karan @ Deva dishonestly retained the Laptop robbed from the complainant Prashant Pandey in the dacoity. It has also been alleged that later on apprehension of the accused Chandan @ Babar was also found in possession of a countrymade pistol without licence or permit.
On the basis of the testimonies of the various prosecution witnesses particularly the victim/ complainant Prashant Pandey and the TSR Driver Bhagirath Lal, vide a detail judgment dated 22.11.2013 this Court has held the accused the accused Chandan @ Babar, Karan @ Deva, Akash, Afzal and Mukesh guilty of the offence under Section 365 and Section 395 Indian Penal Code. Further, the accused Chandan @ Babar has been held guilty of the offence under Section 397 Indian Penal Code and Sections 25/54/59 of Arms Act.
Vide the above judgment this Court has observed that the St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 109 of 106 prosecution has been able to prove and establish that the victim/ complainant Prashant Pandey was doing the job in Karnal in Bajaj Auto Finance; that on 27.02.2010 Prashant Pandey started from Karnal at night time and reached at Karnal bypass Delhi at about 12:30 or 12:45 AM from where he hired one TSR No. 8224 driven by Bhagirath Lal for going to West Patel Nagar; that at about 1:15 AM (midnight) when the TSR reached at Adarsh Nagar flyover, a Maruti Alto car came from behind and stopped in front of TSR blocking the way of TSR and three - four boys got down from the car; that the one of the boy i.e. accused Chandan @ Babar pointed a katta/ pistol on Prashant Pandey whereas another boy i.e. Akash had shown him the knife and other boy i.e. accused Mohd. Afzal also alighted from the car and came to TSR; that Prashant Pandey was taken out from the TSR and the TSR driver Bhagirath Lal was also beaten by the accused, after which Prashant Pandey was made to sit in the car; that Prashant Pandey was having a laptop make HCL P38 which was taken from him by the accused after which the accused asked him to take out the purse on which he (Prashant Pandey) took out his purse and handed over the same to the accused persons. It has also been established that the accused Karan was also sitting in the car and while Prashant Pandey was made to sit in the car Chandan was sitting by pointing a katta on him on one side whereas on the other side accused Akash St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 110 of 106 was sitting pointing knife on him and one of them snatched the laptop from him; that there were total five assailants in the car and they took the mobile phone make NOKIA and MOTOROLA, ATM Card of HDFC bank from the victim Prashant Pandey; that the assailants asked Prashant Pandey to disclose the code and threatened if he did not disclose the code he would be killed on which Prashant Pandey disclosed the code to the accused persons; that the accused persons took Prashant Pandey to Pahar Ganj in the car where two persons got down and went to ATM of ICICI bank but they do not operate his ATM card from there; that thereafter the accused took Prashant Pandey to Daryaganj at the ATM where two accused got down from the car but there also they were not able to withdraw the amount by using his ATM card; that thereafter the accused took Prashant Pandey to Mojpur in the same car where there they stopped in front of ATM of Punjab Nation Bank and two accused persons got down but as they were not able to operate, one more accused got down and went to ATM and withdrew Rs.10,000/ by using his ATM card; that then the accused went to Durgapuri at the ATM of SBI and from there they also withdrew Rs.10,000/ by using the ATM card of Prashant Pandey; that thereafter the accused took Prashant Pandey to Usman Pur Seema Puri where there was a big chowk and threw him out of the car after threatening him that if he disclosed to anybody he would be killed, and then fled away in the car. Further, it has been established that St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 111 of 106 Prashant Pandey reached Police Station Usmanpur after asking two or three persons; that Prashant Pandey was told that case has to be registered in Police Station Adarsh Nagar and the officials of Police Station Usmanpur took him to Police Station Adarsh Nagar and dropped him outside the Police Station of Adarsh Nagar; that since Prashant Pandey was in a hurry and had to reach at home due to Holi festival, therefore he did not enter Police Station Adarsh Nagar and went to his home; that Prashant Pandey came to Delhi on 14.03.2010 and went to Police Station Adarsh Nagar where he lodged his report; that on the basis of the statement of Prashant Pandey the present case was registered; that Prashant Pandey also handed over the receipt of the laptop to the police which was seized by the police; that during investigations the statement of TSR Driver namely Bhagirath Singh was recorded; that on 15.2.2010 pursuant to a secret information the accused Chandan, Karan @ Deva and Akash were apprehended from Gagan Cinema near Sunder Nagri; that from the personal search of accused Chandan one country made pistol having one live cartridge was recovered which were taken into possession; that the accused Karan @ Deva was having a jute bag which was containing a laptop which the accused Karan @ Deva disclosed to be belonging to the victim of this case, after which the said laptop was seized; that from the possession of accused Akash, gold jeweleries and one mobile phone make NOKIA 7210 C was recovered; that the accused Chandan, St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 112 of 106 Karan @ Deva and Akash were arrested and pursuant to their disclosure statement, the accused Nasir was arrested from near Harsh Vihar Police Booth; that Nasir also disclosed his involvement in the present case after which Nasir was arrested in this case.
It has also been established that at the instance of the accused Karan one laptop of Compaq was recovered from the house number 115, Gali No.3, Jwala Nagar, Shahdara, Delhi; that on 22.03.2010 during Test Identification Parade the victim Prashant Pandey identified the accused Akash and Karan @ Deva; that on 7.4.2010 the TSR Driver Bhagirath identified the accused Chandan, Karan @ Deva and Akash in Judicial Test Identification Parade; that on 12.7.2010 the accused Mukesh and Afzal were arrested after taking permission from the Court; that on 15.7.2010 and 16.7.2010 during Judicial Test Identification Parade the victim Prashant Pandey identified the accused Mukesh and Afzal.
This Court has also observed that the victim Prashant Pandey has not only identified the accused Chandan, Karan @ Deva, Akash, Afzal and Mukesh but has attributed specific role to them. He has identified the accused Chandan as the person who pointed a katta on him; accused Akash as the person who had shown him the knife to him; accused Mohd. Afzal as the person who also alighted from the car and came to TSR; accused Karan as the person who was sitting in St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 113 of 106 the car when he was forced to sit in the car and accused Mukesh as one of the assailant. This being the background, it has been held by this Court that the prosecution has been able to prove and substantiate the allegations against the accused Chandan @ Babar, Karan @ Deva, Akash, Afzal and Mukesh of having abducted and wrongfully confined the victim Prashant Pandey in furtherance of their common intention and of having committed dacoity (five persons being involved in the incident of robbery) of mobile phone, laptop and also withdrew Rs.20,000/ by using the ATM Card of the victim, for which they have been held guilty of the offence under Section 365 IPC and Section 395 IPC. Further, it has been established that during the commission of dacoity the accused Akash used a deadly weapon i.e. knife which he showed to the victim Prashant Pandey and the accused Chandan @ Babar also used a deadly weapon i.e. a country made pistol which he showed to the victim for which both the accused Akash and Chandan @ Babar have been held guilty of the offence under Section 397 IPC. However, the accused Afzal has been acquitted of the offence under Section 397 IPC. It has also been held that the prosecution has been able to prove and establish the recovery of country made pistol with one live cartridge from the possession of accused Chandan @ Babar for which he has been held guilty of the offence under Section 25/54/59 of Arms Act. All the accused St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 114 of 106 accused namely Chandan @ Babar, Karan @ Deva, Akash, Mukesh and Afzal have been accordingly convicted.
However, in so far as the accused Nasir is concerned, this Court has observed that he has not been identified by the victim Prashant Pandey and Bhagirath Lal either in the Judicial Test Identification Parade or in the Court. This being the background, it has been held that the prosecution has not been able to prove and substantiate the allegations against the accused Nasir beyond reasonable doubt and hence benefit of doubt has been given to the accused Nasir who has been acquitted of the charges under Section 365 and 395 Indian Penal Code.
Heard arguments on the point of sentence. The convict Chandan @ Babar is stated to be aged about 30 years, having a family comprising of aged widow mother and one elder brother. He is 8th class pass and is a building material supplier by profession.
The convict Karan @ Deva is stated to be aged about 30 years, having a family comprising of aged widow mother, two elder & two younger brothers and two younger sisters. He is totally illiterate and was doing the job in a Copper Factory.
The convict Akash is stated to be young boy aged about 25 years, having a family comprising of aged father, one elder brother and one elder sister. He is 8th class pass and was doing the job on a garment shop.
St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 115 of 106 The convict Afzal is stated to be aged about 24 years, having a family comprising of aged widow mother and five elder brothers. He is 5th class pass and was doing the job of given CD Players on rent.
The convict Mukesh is stated to be aged about 25 years, having a family comprising of aged parents, two elder and one younger brother and one elder married sister. He is 8th class pass and is a Driver by profession.
Ld. Amicus Curiae for the convicts submits that all the convicts belong to poor families and they have already remained in Judicial Custody for a substantive period. He has prayed that keeping in view the family background of the convicts, a lenient view be taken against them.
On the other hand, the Ld. Addl. PP for the State has prayed for a stern view against the convicts keeping in view the allegations involved. He submits that the convicts are habitual offenders and are involved in other criminal cases of similar nature and has placed on record the details of the same.
I have gone through the report of the Investigating Officer relating to present status of cases in which the convicts are stated to be involved. The convict Chandan @ Babar is involved in two other cases details of which are as under:
1. FIR No. 200/2008, PS Kalyan Puri, under Section 399/402 IPC St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 116 of 106 & 25/54/59 of Arms Act wherein he has been acquitted.
2. FIR No. 64/2008, PS Bara Hindu Rao, under Section 392/397/34 IPC wherein he has been convicted.
The convict Karan @ Deva is also involved in two other cases details of which are as under:
1. FIR No. 200/2008, PS Kalyan Puri, under Section 399/402 IPC & 25/54/59 of Arms Act wherein he has been acquitted.
2. FIR No. 64/2008, PS Bara Hindu Rao, under Section 392/397/34 IPC wherein he has been convicted.
The convict Akash is involved in another case i.e. FIR No. 33/2010, PS Nand Nagri, under Section 379/411 IPC wherein he has been acquitted.
The convict Afzal is involved in Six other cases details of which are as under:
1. FIR No. 132/2010, PS Nand Nagri, under Section 411 IPC & 25/54/59 of Arms Act which is pending trial.
2. FIR No. 218/2010, PS Dwarka North, under Section 379/411 IPC wherein he has been acquitted.
3. FIR No. 139/2010, PS Mansarovar Park, under Section 379/411 IPC wherein he has been convicted.
4. FIR No. 87/2008, PS Mourice Nagar, under Section 25/54/59 of Arms Act wherein he has been acquitted.
St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 117 of 106
5. FIR No. 21/2008, PS Nand Nagri, under Section 411 IPC which has been quashed.
6. FIR No. 07/2008, PS Vivek Vihar, under Section 379/411 IPC which case has been compromised.
Further, the convict Mukesh @ Mukka is involved in five other cases, details of which are as under:
1. FIR No. 178/2010, PS Seema Puri, under Section 328/34 IPC which is pending trial.
2. FIR No. 200/2008, PS Kalyan Puri, under Section 399/402 IPC & 25/54/59 of Arms Act wherein he has been acquitted.
3. FIR No. 137/2018, PS Adarsh Nagar, under Section 392/411/34 IPC of Arms Act wherein he has been acquitted.
4. FIR No. 64/2008, PS Bara Hindu Rao, under Section 392/397/34 IPC wherein he has been convicted.
Ld. Addl. PP for the State has urged that keeping in view their antecedents the convicts deserve no mercy.
I have considered the rival contentions. I may observe that in the recent past Delhi has experienced a spurt and rise in the incidents of snatching, robbery, dacoity, murder and other kinds of crime. In the year 2012 alone, a total number of 54,287 cases were registered out of which 608 cases were of robbery; 28 cases were of Dacoity, 14,391 cases were of vehicular theft; 1,440 cases were of St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 118 of 106 snatching and 521 cases were of murder.
The deteriorating law and order problem of the City is a matter of serious concern and immediate steps are required to be taken at all levels for ensuring security and safety of the citizens. Instances of young persons getting involved in criminal activities of robbing innocent persons by putting them under threat of death, are also on rise. Trigger friendly criminals unhesitatingly and indiscriminately use dangerous firearms on helpless victims who may or not offer any resistance thereby spreading terror in the society and adversely affecting social order and the faith of people in the system. The courts are required to find answers to the new challenges facing the society and to mould the sentencing system to meet these challenges. The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should be conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of the crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is desirability to keep the offender out of circulation.
There was no previous animosity between the convicts and the victim and the intent was solely monetary gain. Undue St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 119 of 106 sympathy, under these circumstances, to impose inadequate sentence upon the convicts who are habitual and repeat offenders would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. The convicts are desperado's who have no respect for law or the legal process and therefore it is the duty of this court to award a sentence having regard to the nature of the offence and the manner in which it was executed or committed. (Ref: Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463).
Therefore, keeping in view the antecedents of the convicts and the desirability and need to keep them out of circulation, I hereby award the following punishment to them.
I award the following sentences to the convict Chandan @ Babar:
1. He is sentenced to Rigorous Imprisonment for a period of Seven (7) Years and fine to the tune of Rs.2,000/ for the offence under Section 365 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 15 days.
2. He is sentenced to Rigorous Imprisonment for a period of Seven (7) Years and fine to the tune of Rs.2,000/ for the offence under Section 395 Indian Penal Code. In default of St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 120 of 106 payment of fine the convict shall undergo Simple Imprisonment for a period of 15 days.
3. He is sentenced to Rigorous Imprisonment for a period of Seven (7) Years and fine to the tune of Rs.2,000/ for the offence under Section 397 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 15 days.
4. He is sentenced to Rigorous Imprisonment for a period of Three (3) Years and fine to the tune of Rs.2,000/ for the offence under Section 25/54/59 of Arms Act. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 15 days.
All the above sentences shall run concurrently.
Further, I award the following sentences to the convict Karan @ Deva:
1. He is sentenced to Rigorous Imprisonment for a period of Five (5) Years and fine to the tune of Rs.2,000/ for the offence under Section 365 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 15 days.
2. He is sentenced to Rigorous Imprisonment for a period of St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 121 of 106 Seven (7) Years and fine to the tune of Rs.2,000/ for the offence under Section 395 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 15 days.
Both the above sentences shall run concurrently.
In so far as the convict Akash is concerned, I award the following sentences to him:
1. He is sentenced to Rigorous Imprisonment for a period of Seven (7) Years and fine to the tune of Rs.2,000/ for the offence under Section 365 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 15 days.
2. He is sentenced to Rigorous Imprisonment for a period of Seven (7) Years and fine to the tune of Rs.2,000/ for the offence under Section 395 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 15 days.
3. He is sentenced to Rigorous Imprisonment for a period of Seven (7) Years and fine to the tune of Rs.2,000/ for the offence under Section 397 Indian Penal Code. In default of payment of fine the convict shall undergo Simple St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 122 of 106 Imprisonment for a period of 15 days.
All the above sentences shall run concurrently.
Further, in so far as the convict Afzal is concerned, I award the following sentences to him:
1. He is sentenced to Rigorous Imprisonment for a period of Five (5) Years and fine to the tune of Rs.2,000/ for the offence under Section 365 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 15 days.
2. He is sentenced to Rigorous Imprisonment for a period of Seven (7) Years and fine to the tune of Rs.2,000/ for the offence under Section 395 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 15 days.
Both the above sentences shall run concurrently.
Further, in so far as the convict Mukesh is concerned, I award the following sentences to him:
1. He is sentenced to Rigorous Imprisonment for a period of Five (5) Years and fine to the tune of Rs.2,000/ for the offence under Section 365 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 123 of 106 period of 15 days.
2. He is sentenced to Rigorous Imprisonment for a period of Seven (7) Years and fine to the tune of Rs.2,000/ for the offence under Section 395 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 15 days.
Both the above sentences shall run concurrently.
Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period already undergone by them, as per rules. It is clarified that in case if the convicts are already undergoing sentence in some other case, the sentence imposed upon them in the present case shall run CONSECUTIVELY i.e. after the completion of the sentence which they are already undergoing in the other cases.
The convicts have been informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
One copy of the judgment and order on sentence be given to the convicts free of costs and one copy of order on sentence be St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 124 of 106 attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 9.12.2013 ASJII(NW)/ ROHINI St. Vs. Chandan Etc., FIR No. 62/2010, PS Adarsh Nagar Page No. 125 of 106