Delhi District Court
State vs . 1. Rizwan @ Jojo S/O Habubulla R/O on 21 February, 2013
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : North East / KARKARDOOMA
COURTS: DELHI.
Case ID Number. 02402R0577472006
Sessions Case No. 48/2006 & 138/2007
Assigned to Sessions. 14.12.2006
Arguments heard on 15.02.2013
Date of Judgment 19.02.2013
FIR No. 298/2006 and 306/2006
State Vs. 1. Rizwan @ Jojo S/o Habubulla R/o
Mohalla Kasai Wada, Bulandshahar,
U.P.
2. Shri Ram @ Siria S/o Nain Singh, R/o
Village Dudholi, P.S. Hastinapur, Distt.
Meerut (U.P.).
3. Basant Kumar S/o Dalal Singh R/o
C2/5/8, Gali No.13, Harsh Vihar,
Delhi.
Police Station Shahdara
Under Section 392/394/397/34 IPC, 27 A. Act and 103
D.P. Act.
JUDGEMENT
1. Vide this judgment I shall dispose off the present case in which Station House Officer of Police Station Shahdara had filed a challan vide FIR No.298/2006 dated 05.07.2006 u/s 394/397/412/34 IPC for the prosecution of accused persons namely Deepak @ Dilshad, Rizwan, Shri Ram @ Siria and Basant Kumar in the court of SC No.48/2006 State v. Deepak and others 1/44 Ld. MM and supplementary challan has been filed vide FIR No.306/2006 dated 08.07.2006 u/s 25/54/59 Arms Act for prosecution of accused Shri Ram @ Siria and Ld. Metropolitan Magistrate after compliance of section 207 Cr. P.C. committed this case for trial before this court.
2. Facts of the prosecution case are that on 05.07.2006 a DD No.23A Ex.PW4/B was recorded at police station Shahdara regarding theft at House No.1/4950, Gali No.04, Balbir Nagar Extension, Shahdara, Delhi. On receipt of said DD, ASI Yogender along with Ct. Chander Bose reached at the spot i.e. House No.1/4950, Gali No.04, Balbir Nagar Extension, Shahdara, Delhi where Bhukan Saran met them. ASI Yogender had inspected ground floor and first floor of the house of Bhukan Saran and noticed that household articles were lying here and there. ASI Yogender had recorded statement of Bhukan Saran Ex.PW2/A wherein he had stated that he can identify four robbers, if they be produced before him and cash jewellery, mobile phones, silver coins etc. were robbed from his family and robbers had forcibly opened the almirah of house of complainant. ASI Yogender had made endorsement upon the same Ex.PW11/A and got registered FIR Ex.PW11/U u/s 394/397 IPC & 27 Arms Act through HC Chander Bose. Crime team officials had prepared scene of crime report Ex.PW5/A and three fingerprints were traced which are mentioned in report Ex.PW5/A and photographer had taken photographers of scene of crime from different angles ASI Yogender had prepared site plan at the instance of complainant and his family members vide Ex.PW11/B. During the course of investigation, accused persons were arrested. SC No.48/2006
State v. Deepak and others 2/44
CHARGES:
3. On the basis of material available on record ld. predecessor of this court had framed a charge, vide order dated 07.04.2007 against accused persons namely Basant Kumar and Rizwan @ Jojo for offences punishable u/s 392/394/397/34 IPC and separate charge for the offence punishable u/s 103 D.P. Act against accused persons namely Deepak, Basant Kumar and Rijwan @ Jojo each were framed to which accused persons did not plead guilty and claimed trial. A Separate charge u/s 25/54/59 Arms Act and u/s 103 D.P. Act was also framed against accused Shri Ram @ Siria to which accused did not plead guilty and claimed trial. PROSECUTION WITNESSES:
4. In order to prove its case prosecution has examined 18 witnesses namely PW1 Smt. Sudha Rani, PW2 Bhukan Saran, PW3 HC Chander Bose, PW4 ASI Jagbir Singh, PW5 ASI Ram Singh, PW6 Ct. Lalit, PW7 W/ASI Sumitra Devi, PW8 Ms. Alka Aggarwal, PW9 Ms. Nidhi Aggarwal, PW10 ASI Bhupender Singh, PW11 Retired ASI Yogender, PW12 ASI Arvind Kumar, PW13 ASI Dal Chand, PW14 HC Rajeev, PW15 HC Devender, PW16 Ms. Veena Rani, PW17 Sh. Gautam Manan, Ld. Addl. Senior Civil Judge and PW18 W/ASI Rakesh Kumari. SC No.48/2006
State v. Deepak and others 3/44
5. PW1 Smt. Sudha Rani. This witness has deposed that on 05.07.2006 at about
4:00 or 4:30 p.m. she was present in her home along with her husband, her two daughterinlaws namely Alka and Nidhi and her two grandsons aged about one and two years respectively were also present at home i.e. Gali No.4, Balbeer Nagar, Shahdara. This witness has further deposed that main gate of her house was lying open and herself and her husband were present on the ground floor of house and daughterinlaws and grandsons were on the first floor. Two persons entered the house and one of them enquired them about one Satpal's residence and they replied that no person with the said name resides in this house. Thereafter, they said that they are terrorists and police is behind them and they will go from there afters some time and they further enquired how many persons are present in the house and they informed that her daughterinlaws and grandsons are present in the home.
6. This witness has further deposed that while these talkings were going on, two more persons entered the house and one of those two persons who entered the house earlier, pointed out pistol towards her and her husband and two persons who entered later on they went on first floor and brought her daughterinlaw and grandsons on the ground floor. Thereafter, the accused present in the court (pointed towards accused Rizwan) asked her to open the almirah and she told him that the almirah is in open condition and he had taken silver coins and jewellery articles consisting gold chain, gold rings, gold ear rings out from the almirah and thereafter, accused persons had taken the jewellery articles which she and her SC No.48/2006 State v. Deepak and others 4/44 granddaughters were wearing. This witness has further deposed that she cannot identify those other associates of accused Rizwan as they were covering their faces with handkerchief/cloth. Thereafter, accused persons searched the entire house and also looted a cash amount of Rs.4,000/. This witness has further deposed that accused persons had put them in a room and bolted it from outside and also threatened for not raising alarm otherwise they will be killed and after committing robbery, they left the house. Thereafter, this witness had informed her son namely Vipul and on receipt of information, her both sons reached at the spot and they called the police.
7. This witness had correctly identified the nine coins belonging to her except one coin (this coin is mentioning as "Bhagwati Transport Corporation" 5593, Lahori Gate, Delhi, engraved on it) as Ex.P1 collectively. This witness had correctly identified the golden chain belonging to her as Ex.P2.
8. This witness has correctly identified that out of ten coins, four coins belong to he as Ex.P3 collectively (out of these for coins, one is having picture of Laxmi Ganesh and word 'Shree' engraved on it, second is having picture of Hanuman and word Shree on it, third is having word Om and Laxmi Ganesh on it and fourth is having picture of Laxmi Ganesh and eight small circles engraved on it) and other six coins does not belong to her. This witness had correctly identified the Pajeb as Ex.P4.
SC No.48/2006
State v. Deepak and others 5/44
9. This witness is unable to identify two accused persons namely Shri Ram @ Siria and Basant Kumar present in court as two of the boys were covering their face with handkerchief. This witness denied to the suggestion that accused persons namely Shri Ram and Basant are the same who were involved in the aforesaid incident.
10.In her cross examination by Sh. G.S. Singh, ld. counsel for accused Rizwan @ Jojo, this witness has deposed that accused Rizwan @ Jojo was not brought by the police at their house at any point of time. This witness admits that police official of police station Shahdara had shown the photograph of accused Rizwan @ Jojo at their house after some days from the incident. This witness further admits that police official had directed her to identify the accused Rizwan @ Jojo at that time when they had shown photographs to her. This witness has further deposed that police had shown 23 persons at police station on her second visit but she had refused to identify them as they were not involved in the incident which had taken place at their house. This witness had denied to the suggestion that police official had demanded cash and jewellery from them to plant upon accused persons.
11.PW2 Bhukan Saran. This witness has also deposed on the same footing as deposed by PW1. This witness has further deposed that all the accused persons had taken out their weapons i.e. revolvers as well as knives and they removed the gold kundal from the ears of his wife and they had also removed four bangles from the hands and ear kundal from the person of Nidhi, his daughterinlaw. This SC No.48/2006 State v. Deepak and others 6/44 witness has further deposed that they had also got removed one gold ring and one pair of topas from Alka, his daughterinlaw and one gold polish chain. This witness has further deposed that they had asked about the key of the almirah and his daughterinlaw told them the place where key of the almirah was kept and after taking the keys of almirah, two boys had gone upstairs on the first floor at their own and they had opened the almirah on the ground floor and removed 5060 silver coins, one pair of pajeb and Rs.4,000/ in cash from the almirah.
12.This witness has further deposed that he does not know about the articles which were removed by them from the first floor almirah of his daughterinlaws and they bolted the door of the room from outside after confining them. This witness has pointed out towards accused Rizwan who had taken out the revolver at the time of incident but this witness is unable to identify other two accused persons as two of the accused were covering their faces with the handkerchiefs.
13.This witness has further deposed that accused Rizwan had told him not to tell about this incident to the police otherwise they will kill the family members i.e. his sons and grandsons. This witness has further deposed that accused persons had also robbed one mobile phone make Nokia. This witness has further deposed that his daughterinlaw had made a miss call to his son and his both son after seeing the miss call had reached at the house within half an hour and his sons had made a call to police on 100 number.
SC No.48/2006
State v. Deepak and others 7/44
14.This witness has proved his statement Ex.PW2/A. This witness has also proved MLC of his wife vide Ex.PW2/B.
15.This witness has further deposed that he had also gone to Tihar Jail for identification of accused persons but they refused to participate in the TIP proceedings. This witness has identified the photograph vide mark 1, 2 and 3.
16.This witness has been cross examined by ld. APP for the State on some certain material facts. In his cross examination, this witness has deposed that he had gone to Tihar Jail for identification of accused persons but could not identify them. This witness had denied to the suggestion that he had told the police his supplementary statement dated 20.07.2006 mark X u/s 161 Cr.P.C. that he could not identify the accused persons as they had terrorized him.
17.This witness has correctly identified the silver coins (eight sliver coins with the picture of Hanuman appears to be new one and two silver coins old one, both of them having picture of Laxmi Ganesh) and a pair of jhumkas Ex.P1 (coins) and Ex.P5 (pair of jhumkas) collectively, pair of old silver pajeb vide Ex.P4, gold polish chain vide Ex.P2 but unable to identify the currency notes being of similar nature as in circulation in the market. This witness had denied to the suggestion that accused persons namely Shri Ram and Basant are the same who were involved in the incident of robbery or that he is not identifying them due to their fear and pressure put up upon him.
SC No.48/2006
State v. Deepak and others 8/44
18.In his cross examination by Sh. G.S. Singh, ld. counsel for accused Rizwan @ Jojo, this witness has deposed that accused Rizwan @ Jojo had been brought by the police at their house after about 1 ½ months from incident. This witness has further deposed that he had gone to Tihar Jail for identification of accused persons but he had not identified any accused persons of present case there. This witness admits that he had not identified any accused of present case before police any point of time during the course of investigation. This witness further admits that he had not identified case property at any point of time during course of investigation. This witness further admits that he and his wife had not described the complete description of robbed jewellery and cash or that he had not disclosed/hulia of all four robbers in his statement before police. This witness had denied to the suggestion that he had identified accused Rizwan @ Jojo during evidence at the instance of I.O. as I.O. has pressurized and tutored him. This witness admits that he could not see the face of any robber with because their faces were covered with handkerchief.
19.PW3 HC Chander Bose. This witness had accompanied ASI Yogender Kumar to the spot and in his presence I.O. had recorded statement of complainant Bhukan Saran and taken the rukka to police station for registration of FIR.
20.In his cross examination by ld. defence counsel, this witness had denied to the suggestion that he had not accompanied the I.O. to the spot. SC No.48/2006
State v. Deepak and others 9/44
21.PW4 ASI Jagbir Singh. This witness is a formal witness being duty officer. This witness has proved copy of FIR u/s 394/397 IPC and 25/54/59 Arms Act vide Ex.PW4/A and copy of FIR No.306/2006 u/s 25/54/59 Arms Act vide Ex.PW4/C.
22.PW5 ASI Ram Singh. This witness is a member of Mobile Crime Team, North East District, Delhi. This witness on 05.07.2006 was called by ASI Yoginder at the spot i.e. House No.1/4950, Balbir Nagar. This witness had lifted chance prints from the spot and thereafter, he had prepared the report of the same. This witness has proved copy of his report vide Ex.PW5/A.
23.PW6 Ct. Lalit. This is the witness of arrest of accused persons namely Deepak and Shri Ram @ Siria and recovery. In his presence, accused Deepak had got recovered Rs.1,000/ in the denomination of Rs.100/ each along with one pair of silver pajeb. This witness has proved the seizure memo of the same vide Ex.PW6/A. In his presence, accused Shri Ram @ Siria had got recovered ten silver coins with the picture of "devi and devtas" from his house and this witness has proved seizure memo of the same vide Ex.PW6/B.
24.In his presence, both the accused had taken the police party to house No.518, Gali No.13, Harsh Vihar and at the instance of both accused, accused Basant was arrested and Rs.400/ in the denomination of Rs.100/ each and one chain of necklace shape of yellow colour was recovered which were seized vide seizure SC No.48/2006 State v. Deepak and others 10/44 memo Ex.PW6/C. In his presence, accused Basant had made disclosure that one other associate namely Rizwan @ Jojo was also accompanying them at the time of incident of robbery.
25.This witness has correctly identified Rs.1,000/ in the denomination of Rs.100/ each and one pair of silver pajeb vide Ex.P4 which were recovered at the instance of accused Deepak.
26.This witness has also correctly identified ten silver coins of Laxmi and Ganesh vide Ex.P1 which were recovered at the instance of accused Shri Ram @ Siria.
27.This witness has also correctly identified one chain of necklace shape of yellow colour and Rs.400/ in denomination of Rs.100/ each vide Ex.P2 which were recovered at the instance of accused Basant.
28.In his cross examination by ld. counsel for accused Shri Ram @ Siria @ Surender, this witness has deposed that accused Shriram @ Siria @ Surender was not arrested in present case in his presence and accused Shri Ram was in custody in case FIR No.306/2006 of police station Shahdara. This witness has further deposed that he does not remember the name of I.O. of case FIR No.306/2006 but accused Shriram was formally arrested in the present case by the I.O./S.I. Yogender Singh at about 6:00 a.m. and I.O. had prepared three documents i.e. arrest memo, personal search memo and disclosure statement at the place of arrest. SC No.48/2006
State v. Deepak and others 11/44 This witness had denied to the suggestion that he was not present at the time of arrest of accused Shriram and that he had put his signatures on the arrest papers and his disclosure statement later on at police station at the direction of I.O.
29.PW7 W/ASI Sumitra Devi. This witness is a formal witness being duty officer. This witness has proved carbon copy of FIR No.707/2006 vide Ex.PW7/A which was registered against accused Rizwan @ Jojo.
30.PW8 Ms. Alka Aggarwal is the daughterinlaw of complainant. This witness had failed to identify the accused persons in the court however, she had deposed regarding the incident. She had also not correctly identified the case property. This witness was cross examined by ld. APP for the State on the point of identification of accused persons. In her cross examination by ld. APP for the State, her statement Ex.PW8/A and Ex.PW8/B have been confronted. This witness had denied to the suggestion that she has been won over with accused persons present in court and that today she is not intentionally identified accused persons present in court in order to save them as she and her family have settled the matter outside the court with accused persons.
31.PW9 Ms. Nidhi Aggarwal is also the daughterinlaw of complainant. This witness had failed to identify the accused persons in the court however, she had deposed regarding the incident. She had also not correctly identified the case property. This witness was cross examined by ld. APP for the State on the point of SC No.48/2006 State v. Deepak and others 12/44 identification of accused persons. In her cross examination by ld. APP for the State, her statement Ex.PW9/A and Ex.PW9/B have been confronted. This witness had denied to the suggestion that she has been won over with accused persons present in court and that today she is not intentionally identified accused persons present in court in order to save them as she and her family have settled the matter outside the court with accused persons.
32.PW10 ASI Bhupender Singh. This witness on 27.08.2006 has overpowered the accused Rizwan @ Jojo with the help of Ct. Naresh and one buttondar knife, again said countrymade pistol was recovered from accused Rizwan @ Jojo and got registered FIR No.707/2006 against him. This witness has deposed that during the course of investigation, accused Rizwan @ Jojo had made disclosure statement in the present case. Thereafter, this witness had informed to duty officer of police station Shahdara about arrest and disclosure statement of accused Rizwan @ Jojo and this witness had handed over copy of disclosure statement of accused Rizwan @ Jojo to ASI Yogender. This witness has proved copy of FIR No.707/2006 vide Ex.PW7/A.
33.In his cross examination by Sh. G.S. Singh, ld. counsel for accused Rizwan @ Jojo, this witness had denied to the suggestion that material witnesses of case FIR No.298/2006, namely Bhukan Saran, Smt. Sudha Rani, Smt. Nidhi and Smt. Alka were called at police station Nand Nagri and that accused Rizwan @ Jojo was shown to them. This witness had further denied that no recovery of countrymade SC No.48/2006 State v. Deepak and others 13/44 pistol from accused Rizwan @ Jojo has been made at any point of time.
34.PW11Retired ASI Yogender is a material witness being I.O. This witness on 05.07.2006 on receipt of copy of DD No.23A Ex.PW4/B, along with Ct. Chander Bose reached at the spot i.e. House No.1/4950, Gali No.04, Balbir Nagar Extension, Shahdara, Delhi and there complainant Bhukan Saran met them and he told him that two persons had entered in his house and thereafter two more persons had also entered in his house and they committed robbery on the point of weapons and they had taken their jewellery, mobiles, silver coins etc. This witness had recorded statement of Bhukan Saran vide Ex.PW4/A. Thereafter, this witness had made endorsement Ex.PW11/A and sent Ct. Chander Bose to police station for registration of FIR. This witness has proved scene of crime report vide Ex.PW5/A wherein three fingerprints were traced.
35.This witness has proved unscaled site plan Ex.PW11/B which was prepared by him at the instance of complainant and his family members and copy of FIR Ex.PW4/A.
36.During the course of investigation, this witness had recorded statements of complainant Bhukan Saran, his wife Sudha Rani and their two daughterinlaws namely Smt. Alka and Smt. Nidhi and had also recorded statement of crime team official.
SC No.48/2006
State v. Deepak and others 14/44
37.This witness has deposed that on 06.07.2006, S.I. C.M. Meena had taken fingerprints of present case to Fingerprints Bureau, Malviya Nagar, Delhi but no clue came forward.
38.During the course of investigation, on 09.07.2006, S.I. C.M. Meena had delivered copy of disclosure statement of Deepak @ Dilshad @ Devender Ex.PW11/C to him and told him that accused Deepak @ Dilshad @ Devender had made disclosure statement regarding his involvement in the present case during interrogation in case FIR No.305/2006 of police station Shahdara. This witness had arrested accused Deepak @ Dilshad @ Devender in the present case. This witness had proved copy of FIR of case FIR No.305/2006 u/s 25 Arms Act vide Ex.PW11/D, copy of seizure memo Ex.PW11/E and copy of sketch of country made pistol and live cartridge vide Ex.PW11/F.
39.During the course of investigation, ASI Dal Chand had delivered copy of disclosure statement of Shri Ram @ Siria Ex.PW11/G to him and told him that accused Shri Ram @ Siria had made disclosure statement regarding his involvement in the present case during interrogation in case FIR No.306/2006 of police station Shahdara. This witness had arrested accused Shri Ram @ Siria in the present case. This witness had proved copy of FIR of case FIR No.306/2006 u/s 25 Arms Act vide Ex.PW11/J, photocopy of sketch of countrymade pistol vide Ex.PW11/H and live cartridge vide Ex.PW11/I. SC No.48/2006 State v. Deepak and others 15/44
40.This witness has proved arrest memo Ex.PW11/K and disclosure statement Ex.PW11/M of accused Deepak @ Dilshad @ Devender and arrest memo Ex.PW11/L and disclosure statement Ex.PW11/N of accused Shri Ram @ Siria.
41.During the course of investigation, in pursuance to his disclosure statement accused Deepak, who was in muffled face, had led the police party at his jhuggi at EBlock, Seemapuri, Delhi and got recovered one pair of silver pajeb and cash in sum of Rs.1,000/. This witness has proved the seizure memo of the same vide Ex.PW6/A.
42.During the course of investigation, on 09.07.2006, in pursuance to his disclosure statement accused Shri Ram @ Siria, who was in muffled face, had led the police party at his tenanted room at Panchwati, Loni, Ghaziabad, U.P. and got recovered ten silver coins having pictures of god and goddess from one almirah of his room at first floor. This witness has proved the seizure memo of the same vide Ex.PW6/B.
43.During the course of investigation, this witness had arrested accused Basant on the pointing out of accused Shriram @ Siria and Deepak from House No.518, Gali No. 13, Harsh Vihar, Delhi. This witness has proved arrest memo Ex.PW12/C, personal search memo Ex.PW12/D and disclosure statement Ex.PW12/E of accused Basant and in pursuance to his disclosure statement, accused Basant had got recovered one golden colour chain having shape like necklace and a sum of Rs. SC No.48/2006
State v. Deepak and others 16/44 400/ (four currency notes in the denomination of Rs.100/ each) from the almirah fitted in the wall of his room in his house. This witness has proved the seizure memo of the same vide Ex.PW6/C.
44.This witness has proved pointed out memo Ex.PW12/F which was prepared at the instance of accused persons namely Deepak, Shri Ram @ Siria and Basant.
45.During the course of investigation, on 28.08.2006 at about 10/10:15 a.m. a copy of DD No.7A Ex.PW15/A was assigned to this witness which in connection of accused Rizwan @ Jojo at police station Nand Nagri who had made disclosure statement there in connection of present case and it came into his notice that accused Rizwan @ Jojo is in custody of case FIR No.707/2006 of police station Nand Nagri and at police station Nand Nagri, ASI Bhupinder met him and he apprised about the disclosure statement of accused Rizwan @ Jojo.
46.This witness has proved arrest memo Ex.PW12/G, personal search memo Ex.PW12/H and disclosure statement Ex.PW12/I of accused Rizwan @ Jojo.
47.During the course of investigation, on 28.08.2006 this witness had moved an application for TIP of accused Rizwan @ Jojo before concerned court. This witness has proved application of TIP of accused Rizwan @ Jojo vide Ex.PW11/O and refusal of accused Rizwan @ Jojo to participate in TIP vide Ex.PW11/P. This witness has also proved application for getting TIP proceedings vide Ex.PW11/Q. SC No.48/2006 State v. Deepak and others 17/44
48.During the course of investigation, on 04.09.2006, this witness had taken PC remand of accused Rizwan @ Jojo for the purpose of recovery and on that date, accused Rizwan @ Jojo had also made disclosure statement Ex.PW12/J wherein accused had disclosed that he can get recovered case property and point out the place of occurrence. This witness has proved pointing out memo Ex.PW2/B which was prepared at the instance of accused Rizwan @ Jojo.
49.During the course of investigation, in pursuance to his disclosure statement accused Rizwan @ Jojo led the police party at tenant house i.e. House No.1385, Gali No.18, Nehru Vihar, Mustafabad, Delhi and got recovered 10 silver coins engraved with pictures of some god and goddess and one pair of golden colour ear tops from the almirah from his tenant room. This witness has proved the seizure memo of the same vide Ex.PW12/K.
50.During the course of investigation, on 11.08.2006, this witness had also got conducted judicial TIP of accused persons namely Deepak, Shri Ram and Basant through Alka and Nidhi and they had failed to identify them. This witness has proved copy of judicial TIP vide Ex.PW11/R, PW11/S and PW11/T respectively.
51.This witness has also proved copy of TIP of three accused persons dated 20.07.2006 vide Ex.PW16/B, Ex.PW16/C and PW16/D respectively. This witness has proved photocopy of FIR of present case vide Ex.PW11/U. This witness has correctly identified the case property before the Court. SC No.48/2006
State v. Deepak and others 18/44
52.In his cross examination by Sh. G.S. Singh, ld. counsel for accused Rizwan @ Jojo, this witness admits that accused Rizwan @ Jojo was not apprehended in this case and chance prints were lifted from the spot by crime team. This witness denied to the suggestion that the accused Rizwan @ Jojo was falsely implicated/arrested in a case u/s 399/402 IPC by Nand Nagri police officials or that no recovery was effected pursuant to the disclosure made by the accused. This witness admits that the disclosure of accused Rizwan @ Jojo pertains to present case i.e. case FIR No.298/2006 was recorded by him at police station Nand Nagri. This witness further admits that DD No.7A does not contain the facts of FIR under which accused Rizwan @ Jojo had been arrested by S.I. Bhupinder Singh of police station Nand Nagri. This witness has deposed that name of owner of rented house of accused Rizwan @ Jojo could not be find out after his best efforts. This witness had denied to the suggestion that accused Rizwan @ Jojo had been got identified at police station Shahdara. This witness admits that DD No.23A is not forwarded by SHO or ACP. This witness further admits that complainant had not produced document pertaining to ownership of theft items during investigation.
53.During the cross examination, ld. counsel for accused Rizwan @ Jojo had shown site plan Ex.PW11/B to this witness. On seeing the site plan, this witness admits that electricity pole is not shown therein and it does not bears any signature of any independent witness.
SC No.48/2006
State v. Deepak and others 19/44
54.In his cross examination by Sh. K.P. Singh, ld. counsel for accused Shri Ram and Basant, this witness admits that seizure memo Ex.PW11/I and disclosure statement of accused Shri Ram Ex.PW11/G are not forwarded by SHO or ACP. This witness admits that he had not prepared the site plan of that room where almirah was lying from where accused Shri Ram had taken out 10 silver coins from almirah engraved with Hindu god and goddess picture from behind the clothes lying therein.
55.PW12 ASI Arvind Kumar. This is the witness of arrest of accused Deepak @ Dilshad @ Devender @ Thakur and accused Shriram @ Siria @ Surender. This witness has proved arrest memo Ex.PW11/K and personal search memo Ex.PW12/A of accused Deepak and arrest memo Ex.PW11/L and personal search memo Ex.PW12/B of accused Shriram.
56.This witness has also proved disclosure statement of accused Deepak vide Ex.PW11/M and disclosure statement of accused Shriram vide Ex.PW11/N.
57.This is also the witness of recovery effected at the instance of accused Deepak Thakur and Shriram @ Siria.
58.This witness has also proved arrest memo Ex.PW12/C, personal search memo Ex.PW12/D and disclosure statement Ex.PW12/E of accused Basant Kumar @ Basant. This witness is also the witness of recovery effected at the instance of accused Basant.
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State v. Deepak and others 20/44
59.This witness has also proved pointing out memo Ex.PW12/F which was prepared at the instance of three accused persons.
60.In his presence, I.O. had arrested accused Rizwan @ Jojo in the present case vide arrest memo Ex.PW12/G and his personal search was conducted vide personal search memo Ex.PW12/H. This witness has proved disclosure statement Ex.PW12/I and Ex.PW12/J of accused Rizwan @ Jojo.
61.This witness has also proved pointing out memo Ex.PW2/B which was prepared at the instance of accused Rizwan @ Jojo.
62.This witness has deposed that accused Rizwan @ Jojo had got recovered ten silver coins engraved with god and goddess and one pair of golden colour eartops from the room of his tenanted house. This witness has proved the seizure memo of the same vide Ex.PW12/K.
63.This witness has correctly identified all three accused persons namely Shri Ram @ Siria, Basant and Rizwan @ Jojo present in the court.
64.This witness has correctly identified the case property which were recovered at the instance of accused persons.
SC No.48/2006
State v. Deepak and others 21/44
65.In his cross examination by Sh. G.S. Singh, ld. counsel for accused Rizwan @ Jojo, this witness admits that no public person was present at the time of arrest and recovery in this case and he cannot say whether I.O. had served any notice upon residents, in front of house of complainant. This witness has further deposed that at the time of pointing out by accused Rizwan @ Jojo he has prepared Fard (pointing out memo) but I.O. had not prepared site plan in his presence. This witness had denied that I.O. had shown the face of accused Rizwan @ Jojo by calling complainant and his family members at P.S. or that accused Rizwan @ Jojo had not led at the spot. This witness has further deposed that I.O. had not served any notice to any public persons at the time of recovery and no notice was got served upon house owner of accused Rizwan @ Jojo at the time of recovery. This witness has further deposed that landlord was not called by the I.O. at the tenanted room of accused Rizwan till he remained there. This witness has further deposed that neither photographs nor site plan of place of recovery were prepared. This witness had denied to the suggestion that I.O. had called complainant and had obtained the signature of complainant on the pointing out memo etc. or that no recovery was effected from the possession of accused Rizwan or at his instance in his presence at any point of time or that jewellery articles had been planted upon the accused Rizwan @ Jojo.
66.In his cross examination by Sh. Malkhan Singh, ld. counsel for accused Basant, this witness has deposed that accused Basant was arrested on 09.07.2006 from the area of police station Harsh Vihar on the pointing out of accused Deepak and SC No.48/2006 State v. Deepak and others 22/44 others. This witness has further deposed that no public persons had joined the investigation and they had refused the request of investigating officer.
67.PW13 ASI Dal Chand. This witness had arrested accused Shri Ram @ Siria vide arrest memo Ex.PW13/B and personal search memo Ex.PW13/C in case FIR No. 306/2006 and in his disclosure statement Ex.PW13/D, he had disclosed his involvement in case FIR No.298/2006. This witness has proved site plan Ex.PW13/A which was prepared at the instance of S.I. Om Prakash. This witness had also obtained the previous involvement list of accused Shri Ram @ Siria from MHC(R) and he was found to be involved in thirteen criminal cases vide Ex.PW13/E. This witness had also collected the FSL report mark X. This witness had also obtained the sanction order u/s 39 of Arms Act from the concerned Addl. DCP and the sanction order vide mark 'Y'.
68.In his cross examination by Sh. K.P. Singh, ld. counsel for accused Shri Ram @ Siria, this witness has deposed that he had received the investigation of case FIR No.306/2006 at about 9:00 p.m. This witness has further deposed that no public person was at the spot and accused Shri Ram along with police staff was present at the spot at the distance of ½ km from Ambedkar College. This witness admits that he had done whatever first I.O./S.I. Om Prakash had told him. This witness has deposed that he had prepared arrest memo, personal search memo and recorded disclosure statement of accused Shri Ram @ Siria. This witness had denied to the suggestion that he had never visited the spot, or that he had conducted all the SC No.48/2006 State v. Deepak and others 23/44 proceeding of this case while sitting at police station on the direction of S.I. Om Prakash. This witness had further denied to the suggestion that accused Shri Ram has been falsely implicated in the present case after lifting him from his house.
69.PW14 HC Rajeev. This witness had joined the investigation with ASI Yogender, HC Arvind and Ct. Lalit Kumar. This witness has deposed on the same footinga s deposed by PW HC Arvind and Ct. Lalit Kumar.
70.PW15 HC Devender. This is the witness of recording of DD No.7A on 28.08.2006 on receiving of information on phone, passed on by S.I. Bhupender Singh from P.S. Nand Nagri about the arrest of accused Rizwan @ Jojo at P.S. Nand Nagri. This witness has proved the copy of aforesaid DD entry vide Ex.PW15/A.
71.In his cross examination by ld. defence counsel, this witness had denied to the suggestion that he had manipulated DD No.7A on the direction of ASI Yogender or that he had not received any telephonic information from P.S. Nand Nagri.
72.PW16 Ms. Veena Rani, ACJ/ARC. This witness has conducted TIP proceedings of accused persons namely Deepak, Shriram @ Siria and Basant. This witness has deposed that I.O. had produced PWs Smt. Sudha and Sh. Bhukan Saran and they could not identify accused persons. This witness has proved TIP proceeding of accused Deepak vide Ex.PW16/B, of accused Shriram @ Siria vide Ex.PW16/C SC No.48/2006 State v. Deepak and others 24/44 and of accused Basant vide Ex.PW16/D which bears her signatures at point A, B and C.
73.This witness has further deposed that copies of aforesaid TIP proceedings had been given to I.O. on his request vide order Ex.PW16/E.
74.PW17 Sh. Gautam Manan, Ld. Addl. Senior Civil Judge. This witness had conducted TIP proceedings of accused Deepak, Shri Ram and Basant. This witness has deposed that I.O./S.I. Yogender Singh had produced witnesses namely Smt. Alka and Smt. Nidhi and both aforesaid witnesses had failed to identify the accused persons except accused Basant who was identified by witness - Smt. Nidhi.
75.This witness has proved TIP proceeding of accused Deepak vide Ex.PW11/R, of accused Shri Ram vide Ex.PW11/S and of accused Basant vide Ex.PW11/T. This witness had proved certificate regarding correctness of aforesaid proceedings one by one vide Ex.PW17/A, Ex.PW17/B and Ex.PW17/C respectively. This witness had allowed request of I.O. to provide copies of aforesaid proceeding vide order Ex.PW17/D.
76.PW18 W/ASI Rakesh Kumari. This witness is a formal witness being Duty Officer. This witness has brought original FIR No.305 of police station Shahdara. This witness had got recorded FIR u/s 25 Arms act against accused Deepak @ SC No.48/2006 State v. Deepak and others 25/44 Devender @ Dilshad @ Dillu, through computer operator, on the basis of rukka presented before her by HC Arvind. This witness has proved copy of FIR No.305 vide Ex.PW18/A and copy of computer generated FIR vide Ex.PW11/D. STATEMENT OF ACCUSED PERSONS U/S 313 CR. P.C.:
77.After prosecution evidence, statement of accused persons u/s 313 Cr. P.C. were recorded wherein accused persons denied all circumstances and evidence were put to them and claimed to be innocent and have been implicated falsely in the present case. They have deposed that officials of police station Shahdara have falsely implicated them in this case. Accused Rizwan @ Jojo has preferred to lead D.E. and accused persons namely Basant Kumar @ Basant and Shri Ram @ Siria have not preferred to lead any D.E.
78.DW1 Saleem has deposed that he is the vegetable and fruit seller by profession. This witness has deposed that six years back around the festival of Raksha Bandhan, he was sleeping in his house at Shaheed Nagar, Sahibabad, at about 9:30 or 10:00 p.m., the door of his house was knocked and he opened the door and found one muslim police official and other was in civil dress and they enquired about Rizwan and police officials stated that enquries is to be conducted from Rizwan in police station Nand Nagri and they had taken Rizwan with them. This witness has further deposed that he had also accompanied Rizwan and the police officials and in the night police officials stated to him that he should leave the police station and the police officials also stated that Rizwan will be released in the SC No.48/2006 State v. Deepak and others 26/44 morning. This witness has further deposed that in the morning he visited police station Nand Nagri and he was apprised by the police officials that Rizwan had not yet been interrogated and asked him to come in morning and in the manner he had visited police station Nand Nagri 2 or 3 times and afterwards, he had come to know that Rizwan had sent to Jail.
79.In his cross examination by ld. APP for the State, this witness has deposed that he had not made any complaint to the senior police officials and he had not asked his lawyer to file complaint against the police officials for illegal detention of accused Rizwan.
80.D.E. closed. Thereafter, case was fixed for arguments. ARGUMENTS:
81.Ld. APP for the State submits that there are charges for offences punishable u/s 392/394/397/34 IPC and u/s 103 D.P. Act against accused persons namely Basant Kumar and Rizwan @ Jojo. There is charge a for offence punishable u/s 103 D.P. Act against accused Deepak.
82.Ld. APP for the State further submits that a separate charge u/s 25/54/59 Arms Act and u/s 103 D.P. Act was also framed against accused Shri Ram @ Siria. SC No.48/2006
State v. Deepak and others 27/44
83.Ld. APP for the State argued that there are four material witnesses i.e. PWs Bhukan Saran, Smt. Sudha Rani, Smt. Alka and Smt. Nidhi. These material witnesses could not identified the accused persons in the court as well as during the TIP proceedings, however, they had deposed about the incident.
84.Ld. APP for the State further argued that recovery has been effected at the instance of accused persons.
85. On these grounds, ld. APP for the State has prayed for maximum sentence to the accused persons.
86.On the other hand, Sh. G.S. Singh, Ld. counsel for accused Rizwan @ Jojo argued that PW complainant, his wife PW Sudha Rani and his daughterinlaws could not identified the accused persons as culprits.
87.Ld. counsel for accused Rizwan @ Jojo further argued that offence punishable u/s 397 IPC is not made out against accused Rizwan @ Jojo.
88.Ld. counsel for accused Rizwan @ Jojo further argued that disclosure statement is admissible as per section 27 of Evidence Act upto the extend of recovery.
89.Ld. counsel for accused Rizwan @ Jojo further argued that DD entry has not been forwarded by ACP/DCP or SHO.
SC No.48/2006
State v. Deepak and others 28/44
90.Ld. counsel for accused Rizwan @ Jojo further argued that there is violation of section 100 clause 4.
91.Ld. counsel for accused Rizwan @ Jojo further argued that PW15 in his cross examination has deposed that it is correct that DD No.27A does not belong to accused Rizwan @ Jojo.
92.Ld. counsel for accused Rizean @ Jojo further argued that DD No.7A had not been identified by any of PWs and DD register had not been exhibited.
93.Sh. R.P. Singh, Ld. counsel for accused Shri Ram @ Siria and Basant argued that no family member of complainant was present at the time of recovery.
94.Ld. counsel for accused further argued that house of accused Shri Ram has been stated to be rented house and there is no explanation as to numbers of floors and no key or lock had been seized which was taken out by accused Shri Ram @ Siria.
95.Ld. counsel for accused Shri Ram and Basant further argued that recovered articles had not been identified by complainant and only 10 silver coins had been shown to be recovered from the possession of accused Shri Ram.
96.ld. counsel for accused Shri Ram and Basant further argued that as per PW12 from SC No.48/2006 State v. Deepak and others 29/44 of house of accused Basant they had returned to police station whereas other PWs state that they had gone to house of other accused person.
97.Ld. counsel for accused Shri Ram and Basant further submits that complainant had refused that I.O. had brought the accused persons before him.
98.Ld. counsel for accused Shri Ram and Basant further submits that FIR No. 305/2006 under Arms Act has been registered against accused Deepak but its status is not known.
99.Ld. counsel for accused Shri Ram and Basant further submits that as per PW13 ASI Dal Chand, FIR No.306/2006 was registered against accused Shri Ram. Ld. counsel for accused further argued that disclosure statement has not been referred to any senior police official.
100.Ld. counsel for accused Shri Ram and Basant further submits that PW Sudha states that 1 ½ months later police had called her at police station to identify the accused present there which she had refused to identify the accused persons.
101.Ld. counsel for accused Shri Ram and Basant further submits that PW14 HC Rajiv in his cross examination has deposed that family member of accused Shri Ram were present at the time of recovery but no one has been made witness to the recovery and case property has been shown directly to the public witnesses at their SC No.48/2006 State v. Deepak and others 30/44 house.
102.Ld. counsel for accused persons further argued that no recovery of weapon is effected from accused persons. On these grounds, ld. counsel for accused persons has prayed for acquittal of accused persons from the charges. PERUSAL OF RECORD:
103.Arguments heard. Record perused. On perusal of record it is revealed that present case was registered on the statement of complainant PW Bhukan Saran Ex.PW2/A and accordingly, FIR Ex.PW11/U u/s 392/397/34 IPC was registered in the present case.
104.On perusal of record, it is further revealed that crime team officials had prepared scene of crime report Ex.PW5/A and three fingerprints were traced which are mentioned in report Ex.PW5/A and photographer had taken photographers of scene of crime from different angles.
105.On perusal of record, it is further revealed that ASI Yogender had prepared site plan at the instance of complainant and his family members vide Ex.PW11/B. During the course of investigation, accused persons were arrested. SC No.48/2006
State v. Deepak and others 31/44
106.On perusal of record, it is further revealed that during the course of investigation, on 09.07.2006, S.I. C.M. Meena had delivered copy of disclosure statement of Deepak @ Dilshad @ Devender Ex.PW11/C to the I.O. and told him that accused Deepak @ Dilshad @ Devender had made disclosure statement regarding his involvement in the present case during interrogation in case FIR No.305/2006 of police station Shahdara. I.O. had arrested accused Deepak @ Dilshad @ Devender in the present case. I.O. had proved copy of FIR of case FIR No. 305/2006 u/s 25 Arms Act vide Ex.PW11/D, copy of seizure memo Ex.PW11/E and copy of sketch of countrymade pistol and live cartridge vide Ex.PW11/F.
107.On perusal of record, it is further revealed that during the course of investigation, ASI Dal Chand had delivered copy of disclosure statement of Shri Ram @ Siria Ex.PW11/G to the I.O. and told him that accused Shri Ram @ Siria had made disclosure statement regarding his involvement in the present case during interrogation in case FIR No.306/2006 of police station Shahdara and I.O. had arrested accused Shri Ram @ Siria in the present case. I.O. had proved copy of FIR of case FIR No.306/2006 u/s 25 Arms Act vide Ex.PW11/J, photocopy of sketch of countrymade pistol vide Ex.PW11/H and live cartridge vide Ex.PW11/I. I.O. had proved arrest memo Ex.PW11/K and disclosure statement Ex.PW11/M of accused Deepak @ Dilshad @ Devender and arrest memo Ex.PW11/L and disclosure statement Ex.PW11/N of accused Shri Ram @ Siria. SC No.48/2006
State v. Deepak and others 32/44
108.On perusal of record, it is further revealed that in pursuance to his disclosure statement accused Deepak, who was in muffled face, had led the police party at his jhuggi at EBlock, Seemapuri, Delhi and got recovered one pair of silver pajeb and cash in sum of Rs.1,000/ and I.O. had prepared the seizure memo of the same vide Ex.PW6/A.
109.On perusal of record, it is further revealed that on 09.07.2006, in pursuance to his disclosure statement accused Shri Ram @ Siria, who was in muffled face, had led the police party at his tenanted room at Panchwati, Loni, Ghaziabad, U.P. and got recovered ten silver coins having pictures of god and goddess from one almirah of his room at first floor and I.O. had prepared the seizure memo of the same vide Ex.PW6/B.
110.On perusal of record, it is further revealed that during the course of investigation, I.O. had arrested accused Basant on the pointing out of accused Shriram @ Siria and Deepak from House No.518, Gali No.13, Harsh Vihar, Delhi. I.O. has proved arrest memo Ex.PW12/C, personal search memo Ex.PW12/D and disclosure statement Ex.PW12/E of accused Basant and in pursuance to his disclosure statement, accused Basant had got recovered one golden colour chain having shape like necklace and a sum of Rs.400/ (four currency notes in the denomination of Rs.100/ each) from the almirah fitted in the wall of his room in his house and I.O. has prepared the seizure memo of the same vide Ex.PW6/C. I.O. has proved pointed out memo Ex.PW12/F which was prepared at the instance of accused SC No.48/2006 State v. Deepak and others 33/44 persons namely Deepak, Shri Ram @ Siria and Basant.
111.On perusal of record, it is further revealed that during the course of investigation, on 28.08.2006 at about 10/10:15 a.m. a copy of DD No.7A Ex.PW15/A was assigned to I.O. which in connection of accused Rizwan @ Jojo at police station Nand Nagri who had made disclosure statement there in connection of present case and it came into the notice of I.O. that accused Rizwan @ Jojo is in custody of case FIR No.707/2006 of police station Nand Nagri and at police station Nand Nagri, ASI Bhupinder met him and he apprised about the disclosure statement of accused Rizwan @ Jojo. I.O. has has proved arrest memo Ex.PW12/G, personal search memo Ex.PW12/H and disclosure statement Ex.PW12/I of accused Rizwan @ Jojo.
112.On perusal of record, it is further revealed that during the course of investigation, on 28.08.2006, I.O. witness had moved an application for TIP of accused Rizwan @ Jojo before concerned court but accused Rizwan @ Jojo has refused to participate in TIP proceedings. I.O. has proved application of TIP of accused Rizwan @ Jojo vide Ex.PW11/O and refusal of accused Rizwan @ Jojo to participate in TIP vide Ex.PW11/P and I.O. has also proved application for getting TIP proceedings vide Ex.PW11/Q.
113.On perusal of record, it is further revealed that during the course of investigation, on 04.09.2006, I.O. had taken PC remand of accused Rizwan @ Jojo for the SC No.48/2006 State v. Deepak and others 34/44 purpose of recovery and on that date, accused Rizwan @ Jojo had also made disclosure statement Ex.PW12/J wherein accused had disclosed that he can get recovered case property and point out the place of occurrence. I.O. has proved pointing out memo Ex.PW2/B which was prepared at the instance of accused Rizwan @ Jojo.
114.On perusal of record, it is further revealed that during the course of investigation, in pursuance to his disclosure statement, accused Rizwan @ Jojo led the police party at tenant house i.e. House No.1385, Gali No.18, Nehru Vihar, Mustafabad, Delhi and got recovered 10 silver coins engraved with pictures of some god and goddess and one pair of golden colour ear tops from the almirah from his tenant room and I.O. had proved the seizure memo of the same vide Ex.PW12/K.
115.On perusal of record, it is further revealed that during the course of investigation, on 11.08.2006, I.O. witness had also got conducted judicial TIP of accused persons namely Deepak, Shri Ram and Basant through Alka and Nidhi but they had failed to identify them. I.O. has proved copy of judicial TIP vide Ex.PW11/R, PW11/S and PW11/T respectively.
116.On perusal of record, it is further revealed that I.O. has also proved copy of TIP of three accused persons, dated 20.07.2006 vide Ex.PW16/B, Ex.PW16/C and PW16/D respectively. I.O. has proved photocopy of FIR of present case vide Ex.PW11/U and I.O. has correctly identified the case property before the Court. SC No.48/2006
State v. Deepak and others 35/44
117.On perusal of record, it is further revealed that accused persons in their
statement u/s 313 Cr. P.C. have deposed that they are innocent and they had been lifted by the police from their houses and falsely implicated in the present case.
118.On perusal of record, it is further revealed that complainant and his family members had identified some of robbed articles and remaining robbed articles had not been accounted by accused persons which were in their possession.
119.On perusal of record, it is further revealed that accused Deepak had plead guilty for the offence u/s 103 D.P. Act.
120.Before reaching at the conclusion let the relevant sections be reproduced which are as under: Section 392 IPC:
"Punishment for robbery Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to find; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years."
Ingredients of offence. The essential ingredients of the offence under sec. 392 are as follows:
1) Accused committed theft as defined in sec. 378 in the process;
2) Accused caused or attempted to cause to some persons
i) death, hurt or wrongful restraint;
ii) fear of death or of instant hurt or instant wrongful restraint;
3) Accused did either act
a) in committing such theft, or
b) in order to commit theft, or
c) in carrying away or attempting to carry away the property obtained by such theft.SC No.48/2006
State v. Deepak and others 36/44
Section 394 IPC
"Voluntarily causing hurt in committing robbery." If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and other person jointly concerned in commiting or attempting to commit such robber, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Section 397 IPC "Robbery, or dacoity, with attempt to cause death or grievous hurt - If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years." Ingredients of offence. The essential ingredients of the offence under section 397 are as follows:
1) Accused committed robbery or dacoity;
2) While committing such robbery or dacoity the accused
a) used a deadly weapon;
b) caused grievous hurt to any person;
c) attempted to cause death or grievous hurt to any person.
Section 103 in The Delhi Police Act, 1978 Section 103 D.P. Act.
Possession of property of which no satisfactory account can be given. Whoever has in his possession or conveys in any manner, or offers for sale or pawn, anything which there is reason to believe is stolen property or property fraudulently obtained, shall, if he fails to account for such possession or act to the satisfaction of the Metropolitan Magistrate, on conviction, be punished with imprisonment for a term which may extend to three months or with fine which may extend to one hundred rupees, or with both.
121.It has been observed in 'Harish Chandra Vs State of UP - AIR 1976 SC 1430' that :
"Robbery The offence of robbery is defined in section 390 IPC. The robbery is punishable under section 392 IPC. When force is used to enable another to carry away the booty, it amounts to robbery."SC No.48/2006
State v. Deepak and others 37/44
122.Since in the present case recovery have been effected in pursuance of disclosure statement of accused persons but there is no independent witness of recovery.
Hence, as to the matter of presumption no fact on record could be brought by prosecution to presume certain facts.
123.Hon'ble High Court of Delhi in case titled as 'Syam Sunder and others Vs. State, CRL. A. 233/2008', wherein it has held that :
In order to prove the offence under Section 397 IPC the prosecution must establish:
i) commission of robbery or dacoity;
ii) that the accused used the deadly weapon; or caused grievous hurt; or attempted to cause death or grievous hurt and
iii) the above acts were done during the commission of robbery or dacoity.
124.Since present case has been registered on the statement of complainant, PW2 Bhukan Saran Ex.PW2/A wherein he had stated that four robbers had entered in his house and they had robbed cash, jewellery, mobile phones, silver coins etc. from his family and they had forcibly opened the almirah of his house but he could not identified the accused persons in the court as culprits who had robbed articles from his house.
125.PW2 Bhukan Saran has proved MLC Ex.PW2/B of Smt. Sudha Rani. Since MLC of injured Smt. Sudha Rani does not suggest that this witness was unconscious at the time of recording her statement. Further, it is mentioned in the column of SC No.48/2006 State v. Deepak and others 38/44 MLC name and address of relative/friend concerned wherein name of S.I. Bhupender has been mentioned. Hence, inference may be drawn that S.I. Bhupender would have told the aforesaid fact of alleged history of assault to the doctor. Since witness was fit at that time and it may be presumed that this fact should have come from the mouth of injured. Neither PW Sudha Rani has deposed before the this court during her examination regarding alleged beating or assault by accused persons.
126.PW1 Smt. Sudha Rani, wife of complainant also could not identified the accused persons before the court or during TIP but this witness had identified some robbed jewellery articles and some of robbed recovered articles she could not identify.
127.During the course of investigation, accused Deepak @ Devender in case FIR No. 305/2006 by S.I. C.M. Meena, accused Shri Ram @ Siria had arrested in case FIR No.306/2006 by ASI Dal Chand and accused Rizwan @ Jojo had arrested in case FIR No.707/2006 and during their interrogation they had deposed regarding involvement in the present case. Accused Basant Kumar @ Basant was arrested on the pointing out of accused Deepak @ Devender and Shri Ram @ Siria. Accordingly, all the accused persons had been arrested by I.O. in the present case.
128.Further, police had also got conducted TIP of accused persons by the complainant and his family members who had refused to identify the accused person except Rizwan @ Jojo who had refused to joined the TIP proceedings on SC No.48/2006 State v. Deepak and others 39/44 the pretext that he had been shown by the police to the witnesses. In these circumstances, no adverse inference can be drawn against accused Rizwan @ Jojo refusing to join the identification parade. This is significant when complainant in the Court has not identified any accused persons. This fact has been mentioned by PW Smt. Sudha Rani in her cross examination by Sh. G.S. Singh, Ld. counsel for accused Rizwan @ Jojo that photograph of accused Rizwan @ Jojo had been shown to her by the police officials of police station Shahdara.
129.Further, PW Ms. Nidhi Aggarwal had identified the accused Basant in TIP proceedings but she could not identified the accused Basant before the Court.
130.Further, at the instance of accused persons no recovery of arms could have been effected by the I.O. and some of the recovery articles which had been robbed, had been identified by the complainant and his family members.
131.Since in the criminal case, it is necessary that prosecution must have been proved its case beyond reasonable doubt. As per the statement of complainant Bhukan Saran who had not identified the accused persons in the court as well as during the TIP of accused persons namely Shri Ram and Basant and no recovery of weapon has been shown at the instance of accused persons. It cannot be presumed that accused persons had been involved in the present case or that accused persons had caused any injury to the complainant or his family members. There is no reliable ocular evidence that injury on the person of PW Smt. Sudha Rani shown in MLC SC No.48/2006 State v. Deepak and others 40/44 Ex.PW2/B was inflicted by any of the accused persons. Since the prosecution has been failed to connect injury shown in the MLC of Smt. Sudha Rani with alleged beatings given by the accused persons. Even, in her deposition PW Smt. Sudha Rani has not deposed a single word that accused persons have caused her injury.
132.Further, PWs Smt. Sudha Rani, Smt. Alka Aggarwal and Smt. Nidhi Aggarwal have also not identified the accused persons in the court as well as during the TIP proceedings.
133.Since testimonies of complainant and other official witnesses are not corroborative and no weapon has been recovered in the present case. Hence, this court comes to the conclusion that prosecution has failed to lead any evidence to show that accused had used the "deadly weapon" while committing robbery or caused assault or injury to any members of complainant, thus, in view of this court, ingredients of offence under Section 394/397 IPC are not attracted in this case. In the absence of necessary ingredients that have not been established by the prosecution, conviction of accused under Section 394/397 IPC cannot be awarded.
134.In reference to section 392 IPC, since ingredients of that section has also not been met out, hence, it will not be safe to convict the accused persons merely on conjectures and surmises.
SC No.48/2006
State v. Deepak and others 41/44
135.Moreover, there is no public witnesses to any of the recovery except official witnesses . Therefore, conviction for the offences u/s 392, 394 and 397 IPC solely on the testimony of police officials will result into miscarriage of justice. Hon'ble Supreme Court in case titled as 'Sans Pal Singh Vs. State of Delhi 1999 Cri. L.J. 19' has held that :
"Recovery of country made pistol and live cartridge from the pocket of the accused based only on evidence of police - No public witnesses, even though available, associated to witness recovery Conviction Cannot be maintained. Inter alia, it has been urged by learned counsel for the appellant that it would not be safe to maintain the conviction because the recovery of the illicit arms did not inspire confidence, supported as it is, by the evidence of two police officials alone, unassociated by the testimony of any independent witness. It has also been urged that witnesses of the public were available and neither were they associated nor was any explanation given at the trial as to why they were not associated. From the evidence of PW5 HC Sat Pal singh, it is clear that the police party did not ask any public witness to be witness at the time of search of the accused. Likewise, PW6 SI Mahipal Singh has also stated that no public witness was joined at the time of the search of the accused even though a number of persons were passing through at the time when the recovery was being effected. It is thus evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different matter altogether had there been no public witness available or none was willing to associate. Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus, we got to the view that it would be unsafe to maintain the conviction of the appellant for the offence charged. We, therefore, order his acquittal. He is in jail. He be set at liberty forthwith."
136.Hon'ble High Court of Delhi in case 'Pritam Singh Vs. State cited as 1998(1) JCC (Delhi) 94' where it has been observed that: "the recovery should be made in presence of independent witnesses if available and the search and seizure in SC No.48/2006 State v. Deepak and others 42/44 compliance of section 100(4) of Cr. P. C., would vitiate the trial."
In the case titled 'Nanak Chand vs. State of Delhi 1991Journal of Crl. Cases, Delhi High Court, page no.1(1991 JCC 1)' has been observed that : '...recoveries proved by the police official who differ on the timings ............................... the recovery was effected from the place that houses of both the sides and yet no witness from the public has been produced, not that in every case the police officials are to be treated unworthy of reliance but their failure to join witnesses from public special when they are available at their elbow, may, as in the present case cast doubt...'...officials have churned out a stereo typed version with material difference of timings, it is a rejection needs no Napaleon on the bridge at Arcola'
137.Further, complainant has deposed that accused persons had used countrymade pistol and knives while committing the crime but no recovery could be effected to this effect. Hence, it cannot be presumed that facts has been corroborated by circumstantial or ocular evidence.
138.Accused Deepak had plead guilty for offence u/s 103 D.P. Act. Since none of accused could account the possession of property which is believed to be stolen property. Hence, in view of this court, prosecution has proved its case u/s 103 D.P. Act beyond reasonable doubt against the accused persons namely Rizwan @ Jojo, Shri Ram @ Siria and Basant Kumar @ Basant. Accordingly, they are held guilty u/s 103 D.P. Act.
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139.Hence, in the absence of sufficient evidence against the accused persons this court acquit accused Basant Kumar @ Basant and Rizwan @ Jojo from the charges u/s 392/394/397/34 IPC by giving them benefit of doubt and also acquit accused Shri Ram @ Siria from the charges u/s 25/54/59 Arms Act by giving him benefit of doubt as there is no recovery of arms at his instance. PRONOUNCED IN THE OPEN COURT ON THIS 19.02.2013 (RAMESH KUMARII) ASJ01/ NORTH - EAST KARKARDOOMA COURTS, DELHI SC No.48/2006 State v. Deepak and others 44/44 IN THE COURT OF SH. RAMESH KUMAR - II, ADDITIONAL SESSIONS JUDGE - 01 : NORTH EAST / KARKARDOOMA COURTS: DELHI.
FIR No. 298/2006 and 306/2006 State Vs. 1. Rizwan @ Jojo S/o Habubulla R/o Mohalla Kasai Wada, Bulandshahar, U.P.
2. Shri Ram @ Siria S/o Nain Singh, R/o Village Dudholi, P.S. Hastinapur, Distt.
Meerut (U.P.).
3. Basant Kumar S/o Dalal Singh R/o C2/5/8, Gali No.13, Harsh Vihar, Delhi.
Police Station Shahdara Convicted under 103 D.P. Act. Section ORDER ON THE POINT OF SENTENCE 21.02.2013 Pre: Ld. APP for the state. Convicts are on bail.
Sh. G.S. Singh, Ld. counsel for convict Rizwan @ Jojo.
Sh. K.P. Singh, Ld. counsel for convicts namely Shri Ram and Basant. Ld. APP for State submits that since the offence u/s 103 D.P. Act has been proved against the convicts namely Rizwan @ Jojo, Shri Ram @ Siria and Basant Kumar @ Basant. Ld. APP for the State further submits that they must be sentenced according to provisions of law to teach a lesson to such uncivilized persons. On this ground, he has prayed for maximum sentence to the convicts. SC No.48/2006
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On other hand, Ld. counsel for convicts submit that they are very poor
persons and there is no previous criminal antecedents against them. Ld. counsel for convicts further submit that they are facing trial since 2011 and they have learnt a lesson that how to live in a civilized society. Ld. counsel for convicts further submit that convicts would not repeat such type of offence in future and they will live peacefully in the society.
Sh. G.S. Singh, Ld. counsel for convict Rizwan @ Jojo further submits that convict Rizwan @ Jojo has been remained in JC for one year, one month and 13 days. Sh. K.P. Singh, Ld. counsel for convicts namely Shri Ram @ Siria and Basant submits that convict Shri Ram @ Siria has been remained in JC for 57 days and convict Basant has been remained in JC for 31 days.
Ld. counsel for convicts further submit that convicts belong to poor families and they are having responsibilities of their families. Ld. counsel for convicts have requested for lenient view and requested to release the convicts for the sentence already undergone.
Arguments heard. Record perused. On perusal of record, it is revealed that the convicts have been facing trial since 2011. Considering the judicial custody period of convicts, this court comes to the conclusion that the ends of justice will be met if convicts namely Rizwan @ Jojo, Shri Ram @ Siria and Basant Kumar @ Basant are sentenced to a period of already undergone. Accordingly, convicts are released on undergone.
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In terms of section 437 A Cr. P.C., convicts namely Rizwan @ Jojo, Shri
Ram @ Siria and Basant Kumar @ Basant are hereby directed to execute bail bond in sum of Rs.25,000/ each with one surety each in the like amount for the period of six months. Orders accordingly.
Copy of judgment and sentence be provided to convict free of cost. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON THIS 21.02.2013 (RAMESH KUMAR - II) ASJ01/N.E. KKD COURTS/DELHI.
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