Delhi District Court
State vs Sunil Etc on 16 December, 2023
IN THE COURT OF SH. VIRENDER KUMAR KHARTA,
ADDITIONAL SESSIONS JUDGE (FTC)02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:
(Sessions case no. 27237/2016)
FIR No. 415/2015
Police Station Kotwali
Chargesheet filed under 395/397/365/412/201/120B IPC &
Sections Sec. 25/54/59 of Arms Act.
Charge framed against accused 120B, 395 r/w 120 B, 397 r/w 120
Sunil B & 365 r/w 120 B IPC
Charge framed against accused 120B, 395 r/w 120 B, 397 r/w 120
Joginder @ Jugnu. B & 365 r/w 120 B IPC
Charge framed against accused 120B, 395 r/w 120 B, 397 r/w 120
Harender @ Tori B & 365 r/w 120 B IPC
Charge framed against accused 120B, 395 r/w 120 B, 397 r/w 120
Chander Pal @ Mistri. B & 365 r/w 120 B and 412 IPC
Charge framed against accused 120B, 395 r/w 120 B, 397 r/w 120
Sunil Rathore. B & 365 r/w 120 B and 412 IPC
Charge framed against accused 120B, 395 r/w 120 B, 397 r/w 120
Sonu B & 365 r/w 120 B and 412 IPC
Charge framed against accused 120B, 395 r/w 120 B, 397 r/w 120
Sanjeev. B & 365 r/w 120 B and 412 IPC
Charge framed against accused 120B, 395 r/w 120 B, 397 r/w 120
Lalit @ Babloo @ Nepali. B & 365 r/w 120 B and 412 IPC
Charge framed against accused 120B, 395 r/w 120 B, 397 r/w 120
Laxman @ Bable. B & 365 r/w 120 B and 412 IPC
Charge framed against accused 120B, 395 r/w 120 B, 397 r/w 120
Ajit. B & 365 r/w 120 B and 412 IPC
Charge framed against accused 120B, 395 r/w 120 B, 397 r/w 120
Sant Raj @ Sante. B & 365 r/w 120 B, 201 IPC &
25 Arms Act.
State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 1 of 71
PS: Kotwali
Charge framed against accused 120B, 395 r/w 120 B, 397 r/w 120
Maan Singh @ Raj. B & 365 r/w 120 B and 412 IPC
State Versus 1. Sunil
S/o Sh. Adel Singh,
R/o Baaby Ka Makan,
Gali No. 14, Saheed
Bhagat Singh Colony,
Karawal Nagar, Delhi.
2. Joginder @ Jugnu,
S/o Sh. Nanak Chand,
R/o Vill. Sahepur Kalan, PS
Khurja, Distt. Bulandshehar,
Utter Pradesh.
Also at:
Gulshan ka Makaan, Gali No.
8, Dhundera Chowk,Gandhi
Nagar, Delhi.
3. Harender @ Tori,
S/o Sh. Ashok Kumar,
R/o Village Dhakpura,
PS Aarniya, Distt. Bulandsehar,
Uttar Pradesh.
4. Chander Pal,
S/o Sh. Mam Chand,
R/o H. No. 66, Partik Society,
Kasanaa Gautam Budh Nagar,
Uttar Pradesh.
5. Sunil Rathore,
S/o Sh. Ram Karan,
R/o H. No. G57/1, Laxmi Park,
Nangloi, Delhi.
6. Sonu,
S/o Sh. Chander Prakash,
State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 2 of 71
PS: Kotwali
R/o H. No. E652, Nathupura,
Burari, Delhi.
7. Sanjeev,
S/o Sh. Raj Bir Singh,
R/o Village Hodaapur,
PS Bharaut,Distt. Bhagpat,
Uttar Pradesh.
Also at:
Gali No. 1, Vikas Nagar,
Loni,Ghaziabad,
Uttar Pradesh.
8. Lalit @ Babloo @ Nepali,
S/o Sh. Chander Pal Singh,
R/o Village Kalan Khuri,
PO Jawa, PS Jahangirpur,
Distt Bulandshehar,
Uttar Pradesh.
9. Laxman @ Bable,
S/o Sh. Kanhaiya Lal,
R/o Vill.+PS Dhilari,
Distt. Moradabad, UP.
Also at:
H. No. 167, Gali No. 3,
Shiv Vihar, Karawal Nagar,
Delhi.
10. Ajit,
S/o Sh. Padam Singh,
R/o Village Kalanpur, PS
Gharh,District Hapur,
Uttar Pradesh.
State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 3 of 71
PS: Kotwali
11. Sant Raj @ Sante,
S/o Sh. Rabosh,
R/o Village Pipalka Suratpur,
PO Bilaspur, Distt.Gautam Budh
Nagar, Uttar Pradesh.
12. Maan Singh @ Raj,
S/o Sh. Bhikham Singh,
R/o G80/2, Laxmi Park,
Nangloi, Delhi.
...Accused persons.
Date of Institution of case 30.09.2015
Date of Arguments 16.12.2023
Judgment reserved on 16.12.2023
Judgment pronounced on 16.12.2023
Decision Acquitted
JUDGMENT
1. Accused persons namely Sunil, Harender @ Tori, Chander Pal, Sunil Rathor, Sonu, Sanjeev, Lalit @ Babloo @ Nepali, Laxman @ Bable, Ajit, Sant Raj @ Sante, Maan Singh and Joginder @ Jugnu are facing trial under Sec. 120B IPC, 395 IPC read with Sec. 120B IPC, Sec. 397 IPC read with Sec. 120B IPC and Sec. 365 IPC read with Sec. 120B IPC. Additionally, accused persons namely Chander Pal, Laxman Singh @ Bable, Ajit, Lalit Kumar @ Bablu @ Nepali, Sonu, Maan Singh, Sanjeev and Sunil Rathore are also facing trial under Sec. 412 IPC. Additionally accused Sant Raj @ Sante is also facing trial under Sec. 201 IPC and under Sec. 25 of The Arms Act. The prosecution story is that State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 4 of 71PS: Kotwali on 11.05.2015, all the abovesaid accused persons conspired together to do an illegal act of committing robbery of silver jewelery belonging to the complainant Sh. Amit Kumar by committing the offence of dacoity armed with deadly weapon. It is further alleged that in pursuance of their criminal conspiracy, abovesaid accused persons committed dacoity of four cartons containing silver jewelery weighing about 275 kilograms in which accused Harender @ Tori was armed with countrymade pistol (Katta) and same was used in the commission of offence. It is further alleged that in pursuance of said conspiracy, accused persons abducted Hari Singh, Dilip and Govind and wrongfully confined them in Scorpio vehicle robbed the jewellery which was recovered from possession of accused persons.
2. The brief facts borne out from the record of the case are that on 11.05.2015, one Sh. Amit Kumar, S/o Sh. Mafat Lal came to the Police Station Kotwali and got his complaint, Ex. PW6/A recorded regarding an incident of robbery. He stated that he was working as Manager at M/s Rajesh Kumar Arvind Kumar, 316, Kucha Ghasi Ram, Chandani Chowk, Delhi. His firm dealt in Rail Cargo works. On 11.05.2015, 11 cartons containing silver jewelery came to Old Delhi Railway Station from Rajkot via Ahmadabad by Ahmadabad Mail train. He had instructed his employees namely Govid and Dilip, to collect the cartons from the Old Delhi Railway Station and bring the same to the office. They were also instructed to accompany with Sunil and Hari Singh who were Cart pullers. On the same date at about 07:40 am, coworker Ramesh called the State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 5 of 71PS: Kotwali complainant Amit Kumar that Ram Kumar (cartpuller) informed him that while taking away the aforesaid cartons, four cartons have been robbed at Queen Road in front of Tejo Fashion at about 07:30 am and the aforesaid four persons namely Govind, Dalip, Hari and Sunil had been abducted by the robbers and the cartpuller Ram Kumar brought the remaining seven cartons to the office. Thereafter, complainant rushed to the office where Ram Kumar met him and narrated whole incident regarding the robbery of four cartons and the total weight of the robbed silver jewelery was about 250275 Kg.
3. On the basis of said statement of complainant Sh. Amit Kumar, the present FIR bearing no. 415/2015 under Sec. 395/397/365/120B IPC was registered at PS Kotwali. Thereafter IO SI Ratan Lal alongwith complainant Amit Kumar went to the spot and prepared the site plan at his instance. IO made efforts to trace the accused persons and the case property. IO SI Ratan Lal recorded statements of witnesses namely Hari Singh, Sunil, Govind and Dilip under Sec. 161 Cr.PC. Dossier of suspicious accused persons were also shown to the victims in the Police Station in which accused Harinder @ Tori was identified by victims. On the directions of SHO, two teams were constituted, one is under supervision of IO/SI Ratan Lal and another under supervision of SI Sanjay Gupta.
4. On 13.05.2015, IO/SI Ratan Lal along with victims went to H. No. 316, Kuchha Ghasiram, Chandani Chowk, Delhi where victims namely Govind and Dilip raised doubt over Cartpuller State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 6 of 71PS: Kotwali Sunil. IO recorded their supplementary statements in this regard. On 14.05.2015, IO served notice under Sec. 160 Cr.PC to cart puller Sunil Kumar who came to the Police Station. IO interrogated cartpuller Sunil Kumar who confessed about his involvement in present matter. Thereafter IO arrested accused Sunil and conducted his personal search and recorded his disclosure statement. Accused Sunil disclosed about his acquaintance Joginder @ Jugnu and upon interrogation, he accepted his involvement in this case. Thereafter, IO arrested accused Joginder @ Jugnu, conducted his personal search, recorded his disclosure statement and pointing out memo. During investigation, SI Sanjay Sharma produced accused Harinder @ Tori in police station. IO interrogated him in which he also confessed about his involvement in the present case. IO arrested accused Harinder @ Tori, conducted his personal search, recorded his disclosure statement and pointing out memo. On 2223/05/2015, during investigation and pointing out of accused Harinder @ Tori, SI Sanjay Gupta arrested accused Chander Pal @ Mistri who also accepted his involvement in the present case. He recorded his disclosure statement and got recovered robbed silver about 80 kg from his factory at Noida. On disclosure statement of accused Chander Pal, SI Sanjay Gupta arrested accused Sunil Rathore from his house, recorded his disclosure statement and got recovered the Xylo car which was used in alleged robbery. During custody, accused Sunil Rathore also got recovered 35 kg silver from village of his maternal uncle situated at Madhya Pradesh. IO/SI Ratan Singh arrested accused Sonu, recorded his disclosure statement and State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 7 of 71PS: Kotwali got recovered robbed silver (28.4 kg) at his instance.
5. On disclosure statement of accused Chander Pal, SI Sanjay Gupta apprehended accused Lalit Kumar @ Babloo @ Nepali and produced before IO. IO arrested accused Lalit Kumar @ Babloo @ Nepali, recorded his disclosure statement and got recovered robbed silver (12.4 kg) at his instance. On the basis of disclosure statement of accused Lalit @ Babloo @ Nepali, IO arrested accused Laxman Singh @ Bable from Karawal Nagar, Delhi and recorded his disclosure statement and on his disclosure statement, he also arrested accused Sanjeev from Ghaziabad. IO recorded disclosure statement of accused Sanjeev. On disclosure statement of accused Sanjeev, IO arrested accused Ajeet Singh from Hapur, UP. IO also got recovered the robbed articles at the instance of accused persons.
6. IO/SI Ratan Singh also got conducted the TIP proceedings of accused Laxman Singh, Sanjeev, Lalit @ Bablu @ Nepali and Ajeet Singh in which witness has correctly identified accused Ajeet Singh. Rest of accused persons refused to participate in the proceedings. On 18.06.2015, SI Sanjay Gupta apprehended accused Sant Raj @ Sante and produced before IO in PS. IO arrested accused Sant Raj @ Sante, recorded his disclosure statement and got recovered one desi Katta and two live cartridges from his office situated at Noida. Thereafter IO added Sec. 25/54/59 Arms Act & Sec. 201 IPC against him. IO sent Desi Katta and cartridges to FSL for opinion. Accused Sant Raj @ Sante disclosed that he had given robbed articles to his associates Ishwar and Shankar who were apprehended by Haryana Police and recovery was affected from State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 8 of 71PS: Kotwali them. IO formally arrested Ishwar and Shankar in this case. During investigation, on the basis of secret information, IO arrested accused Maan Singh, he recorded his disclosure statement and got recovered robbed articles at his instance. During the investigation, the CAF, CDR and location ID charts of the mobile phones used by the accused persons were collected by the IO. During investigation IO also collected documents with respect to robbed items and obtained FSL report with respect to countrymade pistol and live cartridges and sanction under Sec. 39 Arms Act. Other proceedings during the investigation were also conducted by the IO.
7. On completion of investigation, chargesheet was filed by the IO before the Court through the SHO. Supplementary charge sheet was also filed in the Court by the IO through SHO.
8. Vide order dated 2 6 . 0 9 . 2 0 1 5 , copy of the chargesheet under Section 207 Cr.P.C was supplied to the accused persons b y t h e C o u r t o f L d . M M and the case was committed to the Court of Sessions under Sec. 209 Cr.P.C.
9. Vide order dated 16.07.2016 the Ld. Predecessor framed charges accused Sunil, Harinder @ Tori u/s 120 B, 395 r/w 120 B, 397 r/w 120 B & 365 r/w 120B IPC. Charges framed against accused Chander Pal @ Mistri, Sunil Rathore, Sonu, Sanjeev, Lalit @ Babloo @ Nepali, Laxman @Bable, Ajit, Maan Singh u/s 120 B, 395 r/w 120 B, 397 r/w 120 B, 365 r/w 120B IPC & 412 IPC. Charges framed against accused Sant Raj @ Sante u/s 120 B, 395 r/w 120 B, 397 r/w 120 B, 365 r/w 120B IPC, 201 IPC & 25 Arms Act. Further Ld. Predessor Court framed charges under Sec. 120B, State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 9 of 71PS: Kotwali 395 r/w 120 B, 397 r/w 120 B & 365 r/w 120 B IPC against accused Joginder @ Jugnu, vide its order dated 15.03.2017. Accused persons pleaded not guilty and claimed trial.
10. To prove its case, prosecution has examined 33 witnesses. The testimonies of presecution witnesses along with its nature has been discussed briefly in the following paragraphs.
11. PW1 Ct. Naushad Ali, deposed that he was posted as Constable at PS Kotwali on 13.06.2015. He joined the investigation of the present case with IO/SI Ratan Lal. He deposed that during investigation, accused Ajit, Laxman and Sanjeev led them to the village of accused Ajit in Hapur, UP from where they got recovered silly of silver and silver jewelry weighing about 4.400 kg, which was seized by IO vide seizure memo Ex. PW1/A. He further deposed that IO has prepared the site plan Ex. PW1/B of the place of recovery. He also deposed that accused persons had also disclosed about the goldsmith (Sunar) at Ghaziabad by whom the silly of silver were prepared by accused persons. Accused persons took them at vaious places at Ghaziabad but they did not point out any gold smith as well as his shop. This witness was cross examined on behalf of accused persons. In his crossexamination, he admitted that no notice was served upon the persons who refused to join the investigation. He also failed to tell the area in which house of accused was situated. He denied the suggestion that recovered articles have been planted upon the accused. He also admitted that no videography or photography was done at the time of recovery.
FIR No. 415/2015 Page No. 10 of 71PS: Kotwali
12. PW2 HC Rakesh Kumar is the duty officer who proved FIR No. 415/2015 Ex. PW2/A alongwith endorsement on rukka Ex. PW2/B. He also proved DD No. 14A and certificate under Sec. 65B of The Evidence Act as Ex. PW2/C.
13. PW3 Ct. Amit Kumar, deposed that on 11.05.2015 he handed over copy of FIR and Tehrir to IO/SI Ratan Lal. He further deposed that on the instructions of SHO, he along with Ram Kumar went to the DCP office for preparation of portrait of accused persons and after preparation of portrait, he handed over the same to IO/SI Ratan Lal. This witness was crossexamined on behalf of accused persons. He denied the suggestion that he had not joined the investigation in the present case.
14. PW4 HC Pradeep, is the MHC(M). He proved the entries made by him in the register no. 19 and 21 vide Ex. PW4/A (OSR) to Ex. PW4/L (OSR) regarding deposit of case property by the IO and sending the same to FSL, Rohini. In his crossexamination, he denied the suggestion that entries made by him are antedated and antetimed.
15. PW5 Sh. Jaam Singh, deposed that he was the Proprietor of M/s Aditya Silver Ornaments, Sant Kabir Road, 1, Gadhiya Nagar Society, Rajkot, Gujarat, which is the wholesaler and manufacturer of silver and gold ornament. He proved the original retail invoice, Ex. PW5/A of aforesaid shop through which the articles mentioned therein were sold to Anshu Kailash Kumar Verma of Varanasi on 09.05.2015 through courier. He also proved the Courier receipt as Ex. PW5/A1. During the examination of this witness, the Court State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 11 of 71PS: Kotwali observed that upon the perusal of carbon copy/triplicate copy in the bill book brought by the witness was dated 09.05.2015 which reflected some writing was there in column of date and month and it was mentioned as 5 whereas in the original was placed on record on which there was no overwriting. In his crossexamination, he admitted that complete address of purchaser was not mentioned in invoice no. 23.
16. PW6 Sh. Amit Kumar Barot, is the complainant of the present case. He is PartnercumManager of M/s Rajesh Kumar Arvind Kumar. He proved his complaint Ex. PW6/A regarding robbery of four cartons containing about 250275 kg silver ornaments, to which the present FIR was registered. He produced documents regarding details of jewelery items to the IO, which were seized by IO vide seizure memo Ex. PW6/B, photographs of the silver ornaments which were robbed, Ex. PW6/C (colly) and proved seizure memos of documents Ex. PW6/D to Ex. PW6/Z1 . He also proved the marka/sticker of respective parties as Ex. PW 6/AA (colly). He further deposed that he had handed over the attendance proof of employee Govind and Dalip which was seized by the IO vide memo Ex. PW6/AB. He also proved the copy of attendance register running into 9 pages as Ex. PW6/AC. He further deposed that after recovery of case property, he had taken the same on superdari by taking power of attorney from respective parties. He also proved the panchnama Ex. PW6/AF prepared by police before release of case property by taking photographs Ex. PW6/P1(colly). He admitted that no recovery was effected in his State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 12 of 71PS: Kotwali presence. He denied the suggestion that his employee Govind and Dalip had not identified accused Harender @ Tori in his presence.
17. PW7 Prashant Kumar is Alternate Nodal Officer of Vodafone Idea Ltd. who proved CAF and CDR of mobile no. 8860884668 issued in the name of one Narender Sharma, S/o Sh. Ram Chand as Ex. PW7/A and Ex. PW7/B (colly). He also proved Certificate under Sec. 65B of The Evidence Act with respect to CDR as Ex. PW7/C. He also proved CAF and CDR of mobile no. 8860111790 issued in the name of Krishna, S/o Sh. Ranjit Singh as Ex. PW7/D and Ex. PW7/E (colly). He also proved Certificate under Sec. 65B of The Evidence Act with respect of CDR as Ex. PW7/F. PW7 also proved CAF and CDR of mobile no. 9811741200 issued in the name of Sant Raj Nagar, S/o Sh. Rabosh Chand as Ex. PW7/G and Ex. PW7/H (colly). He also proved Certificate under Sec. 65B of The Evidence Act with respect of CDR as Ex. PW7/I. PW7 also proved CAF along with copy of company letter, copy of passport of AR/Mr. Raju Aggarwal, Certificate of Incorporation of company and Cell ID chart of mobile no. 8376834352 issued in the name of Fair Deals Car Pvt. Ltd, user name Pankaj, Sales Executive as Ex. PW7/J and Ex. PW 7/K. PW7 also proved CAF of mobile no. 9540528202 issued in the name of Sushma Devi, W/o Vijay Kumar as Ex. PW7/L. He further deposed that original CAF of this mobile number was not available due to fire outbreak . He further proved the copy of a letter in this regard to concerned SHO as Mark PW7/M. He also proved CAF and No Portability Form of mobile no. 9540303097 State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 13 of 71PS: Kotwali issued in the name of Rahul, S/o Sh. Chander Pal as Ex. PW7/N (colly). In his crossexamination, he denied the suggestion that computer system had never been under his custody through which CDRs were obtained. He deposed that at the relevant time, there were four Alternative Nodal Officers apart from him and in access of computer system and every Nodal Officer have separate access of data retrieval.
18. PW8 Sh. Govind, is the eye witness of the alleged incident and he is the employee of complainant's company.PW8 Sh. Govind deposed that he was working in the company from last 67 years and on 11.05.2015, on instruction of his owner Amit to take the parcels from parcel godown, Old Delhi Railway Station, he along with Dilip reached there. He further deposed that at about 06:30 am, he received 11 cartons from the godown and the said cartons were kept on a hand cart which was being driven by accused Sunil and one Hari. He further deposed that while going to his office, when they reached near Barkhandi Mandi, one white Scorpio car came there and stopped in front of their Hand cart and from which two persons including accused Harinder, who was wearing police uniform and having pistol in his hand, came outside and asked what was there in the parcels. He replied that 'Hamari Company Ka Mall hai'. Thereafter, they apprehended them and made them sit in the said scorpio. They were threatened, thrashed and beaten them. PW 8 further deposed that he saw behind and noticed that another car make Xylo reached there and the persons who were in the Xylo car started picking four cartons on Hand Cart and loading the same in State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 14 of 71PS: Kotwali their vehicle. He along with his associates who were in Scorpio car were taken to NOIDA by accused persons and they were dropped at a secluded place after keeping his mobile phone and Rs. 6,000/ . He further deposed that they were threatened by accused Harinder @ Tori by saying that 'Sidha Chale Jao, Nahi to Goli Mar Denge'. He further deposed that accused persons had beaten him and Dalip and also threatened them by showing weapon but it appeared to him that accused persons of said car were talking with accused Sunil in gesture. He also identified the accused persons. He proved TIP proceedings, Ex. PW8/A qua accused Ajit Singh.
19. In his crossexamination, PW8 Sh. Govind deposed that they had obtained articles from Old Delhi Railway Station with builty but he did not know whether the builty was handed over to IO or not by him. He further deposed that builty Ex. PW6/D was neither obtained by him nor he gave the same to anyone. He admitted that IO had shown the accused persons to him in the Police Station before conducting the TIP proceedings and IO told the name of accused persons to him before the recording of his examinationin chief in the Court. He further admitted that he had not seen the Xylo car behind Scorpio Car and police officials took his signatures on 57 blank papers. He denied the suggestion that he had not visited the Police Station on 13.05.2015 and he was deposing falsely at the instance of complainant and police.
20. PW9 HC Hari Shankar deposed that on 08.07.2015, he collected sealed parcels from MHC(M) which were deposited by him to FSL Rohini vide RC No. 110/21/15. In his cross State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 15 of 71PS: Kotwali examination, he denied the suggestion that he had tempered with the parcels so far these remained in his custody.
21. PW10 HC Harish Kumar was examined and crossexamined of behalf of accused Sh. Mukesh Aggarwal but later on PE was closed and he could not be examined on behalf of remaining accused persons. On 24.11.2023 of Ld. Addl. PP dropped PW10 Harish Kumar from list of witnesses, hence his testimony can not be read in evidence against accused persons.
22. PW11 Sh. Dalip is the eye witness of the alleged incident. He was employee of complainant's company at the relevant time. He deposed that on 11.05.2015, he along with Govind, Sunil and one Rampal or Rajpal were pulling the Rehdi (Hand Cart) loaded with parcels and were going towards their office and suddenly five persons came there in a Scorpio Car, among whom two persons were wearing Police uniform and they started beating Govind. On their instructions, he along with Govind sat on the back seat of car while accused Sunil and Hari sat in the middle seat of car. He deposed that accused persons took them to Noida and threw them from running car. Witness also identified accused persons namely Lalit @ Babloo, Ajit and Santraj as persons who abducted him along with Govind, Sunil & Hari. In his crossexamination, he deposed that accused Lalit @ Babloo was wearing Police uniform, however, he did not remember another person who was wearing the uniform due to lapse of time. He also deposed that he did not know the name of the person who was carrying the pistol. He admitted that he had not given description of the person to the Police who State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 16 of 71PS: Kotwali was carrying pistol on the date of incident. He also admitted that accused persons were shown to him in the Police Station. He also admitted that he had not received the receipt/builty of the articles from the Railway Department. He further deposed that articles were not weighed in his presence at Old Delhi Railway Station. In his re examination by the Ld. Addl. PP for the State, he deposed that accused Harinder was not the person who was carrying the pistol on the date of incident.
23. PW12 Sh. Ramesh Bhai was an employee of complainant's company. He deposed that on 11.05.2015, at about 08:30 pm, one Ram (since deceased) who used to work as Rehdi/Thella/Cart puller came to their office with 8 cartons of silver jewelery and informed that four cartons of have been taken by unknown persons who came in a vehicle. He also informed that they had also taken Dilip and Govind along with them. This witness was crossexamined by the Ld. Addl. PP for State wherein he denied suggestion that he had received a call from Govind who told him that robbers had also robbed their mobile phone and cash and left them at some unknown location in Noida. Further he denied that Ram Kumar had disclosed the complete facts to Amit Kumar in his presence. This witness was confronted with his statement recorded under Sec. 161 Cr.PC marked as Mark P12.
24. PW13 Sh. Hari Singh is the eye witness of alleged incident. He deposed that one day in the year 2015, he accompanied accused Sunil and helper Ram Kumar to Old Delhi Railway Station. He further deposed that when they reached near Town Hall, one big car State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 17 of 71PS: Kotwali came there and two person deboarded from that big car and pushed them into that car and took them towards Noida. He further deposed that he got unconscious in the said big car and they were left in a jungle by the persons who abducted them. This witness was declared hostile by Ld. Addl. PP for State and was crossexamined at length. He was confronted with his statement recorded u/s 161 Cr.P.C marked as P13. Even in the crossexamination by the Ld. Addl. PP for the State, this witness did not support the case of the prosecution and could not identify any of the accused.
25. PW14 Sh. Vijay Singh deposed that in the year 2015, he used to work at Jagdamba Parcel Services and on the date of incident, he handed over the parcels to Govind, employee of complainant's company. He also proved the seizure memo Ex. PW 14/A and the receipt Ex. PW14/B. This witness was declared hostile by the Ld. Addl. PP for the State and he was cross examined at length. In his crossexamination, he deposed that he had signed document Ex. PW14/A without going through the same. He also admitted that document Ex. PW14/B was not prepared in his presence.
26. PW15 Sh. Sampatram Sita Ram Mane deposed that he was the Proprietor of Payal Silver Firm, Rajkot, Gujarat. He proved the sale bill dated 09.05.2015, already Ex. PW6/S and receipt of the courier already Ex. PW6/T to which the goods were handed over in Rajkot, Gujarat. He deposed that sale bill Ex. PW6/S was prepared and issued in due course of business. In his cross examination he denied the suggestion that Sale Bill Ex. PW6/S and State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 18 of 71PS: Kotwali courier receipt Ex. PW6/T are fabricated documents.
27. PW16 Sh. Prashant Ramesh Bhai Khunt, deposed that he was the one of the Partner of partnership firm S & B Jewellery Company, 23 Ranchhod Nagar Society, Rajkot, Gujarat. He proved sale bill dated 06.05.2015, already Ex. PW6/M and receipt of courier already Ex. PW6/N to which the goods were handed over in Rajkot, Gujarat. In his crossexamination, he denied the suggestion that Sale Bill Ex. PW6/M and courier receipt Ex. PW 6/N are fabricated documents.
28. PW17 Sh. Mahesh Bhai Haraji Bhai, deposed that he was running the business of Silver at Rajkot, Gujarat and was Proprietor of Shiv Enterprises. He deposed that he had issued bill no. 01, Invoice No. 61, already Ex. PW6/K to Jai Shree Jewellers, Kishori Raman Market, Chowk Bazar, Mathura, UP. He proved the courier receipt already Ex. PW6/L issued by courier service to him for consignment of said parcel. He had identified the photographs Ex. PW17/A1 to Ex. PW17/A12 of case properties. In his cross examination he deposed that he did not give receipt of purchase of raw silver material to the IO. He identified the jewellery in the photographs Ex. PW17/A1 to Ex. PW17/A12.
29. PW18 Sh. Bharat Bhai Natha Bhai Vekariya deposed that he was the proprietor of B. R. Brothers which deals in silver ornaments. He proved retail invoice dated 09.05.2015, already Ex. PW6/I and courier receipt Ex. PW6/H. In his cross examination, he deposed that Police never called him to Delhi to join the investigation and no specific description of the jewellery State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 19 of 71PS: Kotwali was mentioned in receipt. He denied the suggestion that retail invoice Ex. PW6/I is forged and fabricated document.
30. PW19 Sh. Vinod Bhai Govind Bhai Bhalsod, deposed that he was the proprietor of Sadguru Silver, Rajkot, Gujarat. He proved the retail invoice dated 09.05.2015, Bill No. 208, already Ex. PW 6/U and Bill No. 207, Ex. PW19/A and courier receipt already Ex. PW6/Z. In his crossexamination, he deposed that Police never called him to Delhi to join the investigation and no specific description of the jewellery was mentioned in receipt. He denied the suggestion that Bill No. 207, Ex. PW19/A and Bill No. 208, Ex. PW6/U are forged and fabricated documents.
31. PW20 Sh. Mahenderbhai Jivraj Bhai Patel, deposed that he was the Proprietor of Shri Radhe Ornaments. He proved retail invoice dated 09.05.2015, Bill No. 30, already Ex. PW6/Q and courier receipt already Ex. PW6/T. In his crossexamination, he deposed that Police never called him to Delhi to join the investigation and no specific description of the jewellery was mentioned in receipt. He denied the suggestion that Bill No. 30, Ex. PW6/Q is forged and fabricated document.
32. PW21 Sh. Kriti Kumar Jivan Lal Adesara, deposed that he was the Proprietor of Kriti Kumar Jivan Lal Adesara. He deposed that he had issued voucher dated 09.05.2015, Ex. PW6/O and sent the Jewellery through Rajesh Arvind Courier Service. The receipt issued by courier service is Ex. PW6/R. In his cross examination, he deposed that Police never called him to Delhi to join the investigation and no specific description of the jewellery State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 20 of 71PS: Kotwali was mentioned in receipt. He denied the suggestion that voucher, Ex. PW6/O is forged and fabricated document.
33. PW22 HC Jitender, deposed that on 13.06.2015 he joined the investigation with IO. He proved the recovery of robbed silver brick of about 4 kg 400 gram, at the instance of accused Ajit from his village Kalanpur, PS Garh, District Hapur, UP. He deposed that said silver brick was sized by the IO vide seizure memo Ex. PW 1/A and IO had prepared site plan, Ex. PW1/B of recovery of silver brick. On being putting a leading question by Ld. Addl. PP for state as witness was not disclosing the complete fact, that whether other articles were recovered along with silver brick or not, PW22 HC Jitender replied that silver ornaments were also recovered. This Witness was crossexamined at length on behalf of accused persons.
34. PW23 Sh. Surender Kumar, Nodal Officer, Bharti Airtel Ltd. proved CAF and CDR of mobile no. 9599633318 issued in the name of Raj Kumar Bansal as Ex. PW23/A and Ex. PW23/B. He also proved Certificate under Sec. 65B of The Evidence Act with respect of CDR as Ex. PW23/C. He also proved CAF and CDR of mobile no. 9810791053 issued in the name of Chander Pal as Ex. PW23/D and Ex. PW23/E. He also proved Certificate under Sec. 65B of The Evidence Act with respect of CDR as Ex. PW23/F.
35. PW24 Sh. Pawan Singh, Nodal Officer, Vodafone Idea Ltd, proved CDR of mobile no. 7500247459 & 8510912942 as Ex. PW24/A and Ex. PW24/B respectively. He also proved Certificate under Sec. 65B of The Evidence Act with respect of CDR of both State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 21 of 71PS: Kotwali mobile numbers as Ex. PW24/C. He also proved CDR of mobile no. 9911553361 as Ex. PW24/D. He also proved Certificate under Sec. 65B of The Evidence Act with respect of CDR of aforesaid mobile number as Ex. PW24/E. He also proved CAF of mobile number 7500247459, issued in the name of Dharmener Singh as Ex. PW24/F (colly), CAF of mobile no. 8510912942 issued in the name of Jitender as Ex. PW24/G (colly) and CAF of mobile no. 9911553361 issued in the name of Manoj Kumar as Ex. PW24/H (colly). He also proved Certificate under Sec. 65B of The Evidence Act with respect of CAF of aforesaid mobile numbers as Ex. PW 24/I.
36. PW25 SI Yogender, deposed that on 21.05.2015 he was posted as ASI at PS Kotwali and on that day he joined the investigation of the present case with SI Sanjay Gupta and they along with other police officials and accused Harender @ Tori went Greater Noida in search of accused Chander Pal. On pointing out of accused Harender @ Tori, accused Chander Pal was apprehended from the Varsha Industry, Kasana Industrial Area. He further deposed that IO recorded disclosure statement of accused Chander Pal Ex. PW25/C and silver ornaments (69.74 kg) were recovered from his factory at his instance, which were seized by IO vide seizure memo Ex. PW25/D. In his crossexamination, he admitted that he did not make any departure entry. He also deposed that he did not remember the name of local PS situated at Noida where they visited. He also deposed that he did not remember the name of specific places where the raids were conducted. He also admitted State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 22 of 71PS: Kotwali that no videography and photography of the proceedings conducted at the factory of Chander Pal was done.
37. PW26 HC Manjit Singh, deposed that on 11.05.2015 he joined the investigation with IO/SI Ratan Lal. He deposed that on 12.06.2015, accused Laxman led them to his house in at Shiv Vihar, Karawal Nagar, Delhi from where he got recovered some silver item from carton of LG company. He also deposed that accused Sanjeev also led them to his native place at Bagpat from where he got recovered some silver items, which were seized by the IO vide seizure memo Ex. PW26/B. He also deposed that nothing was recovered at the instance of accused Ajit. He further deposed that accused Sonu pointed out the place of occurrence vide pointing out memo Ex. PW26/A. This witness failed to identify the accused persons as well as the case property. In his crossexamination, this witness admitted that no public person was joined in the investigation in the present matter.
38. PW27 Retd. SI Ratan Lal is the Investigating Officer of the present case. He proved the proceedings conducted by him during the investigation of the present case. He deposed that on the complaint of PW6 Sh. Amit Kumar Barot Ex. PW6/A, FIR in the present case was registered. He proved the site plan Ex. PW27/B. He also recorded the statement of victims/injured under Sec. 161 Cr.PC. He further deposed that dossier of accused persons were brought from the Police Station and dossier of accused Harinder @ Tori was got identified by victims Govind and Dilip. Victims Govind and Dilip raised doubts over Sunil, thereafter he recorded State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 23 of 71PS: Kotwali their supplementary statement.
39. PW27 Retd. SI Ratan Lal also proved the arrest memos, personal search memo and disclosure statement of accused persons. He also proved the seizure memo of case properties at instance of accused persons. He also proved the proceedings conducted by him in Delhi as well as in other States. He correctly identified the accused persons in the Court. He correctly identified Desi Katta Ex. MO1. He also deposed that he moved applications for conducting TIP of accused persons namely Lalit, Laxman, Sanjeev and Ajeet before Ld. Metropolitan Magistrate but only Ajeet joined the TIP proceedings and rest of accused persons refused to join the same. This witness was crossexamined at length by the Ld. counsels for accused persons. In his crossexamination, he admitted that the contents of Ex. PW6/F were in Gujrati language and he did not got the same translated in Hindi or English language. He also deposed that he did not remember if he made any arrival entry in the PS or not. He also admitted that no public persons/neighbours were joined in the investigation during the recovery at instance of accused persons and he had not served any notice to such public person. He also admitted that no public witness was joined in an investigation at the time of recovery of country made katta. He also deposed that he did not know as to how may persons were present at the house of Laxman. He also admitted that he did not get the country made katta identified by the victims. He denied the suggestion that nothing was recovered from the possession of accused persons and case property was planted upon them.
FIR No. 415/2015 Page No. 24 of 71PS: Kotwali
40. PW28 Insp. S. K. Gupta deposed that he joined the investigation in the present case with IO/SI Ratan Lal. He narrated the proceedings conducted by the IO with respect to the arrest, personal search, disclosure statement, pointing out and recovery made at instance of accused Harinder @ Tori, Joginder @ Jugnu, Sant Raj, Lalit @ Nepali, Laxman, Sanjeev, Ajeet, Maan Singh and Chander Pal. He proved the seizure memo Ex. PW28/A and site plan of place of recovery Ex. PW28/B at the instance of accused Chander Pal. He also proved arrest memo, personal search and disclosure statement, Ex. PW28/C, Ex. PW28/D & Ex. PW28/E respectively with respect to accused Sunil Rathore. He also deposed that accused Sunil Rathore also got recovered one Xylo car bearing registration no. DL 14C 8050 along with its documents, said car was seized vide memo Ex. PW28/F and documents seized vide memo Ex. PW28/G. Accused Sunil Rathore also pointed out the spot vide memo Ex. PW/H and got recovered the robbed items which was seized vide memo Ex. PW28/I and site plan, Ex. PW 28/I1 of place of recovery was also got prepared.
41. PW28 Inspector S. K. Gupta was crossexamined at length on behalf of accused persons. In his crossexamination he deposed that he did not know if the departure entry was made by IO or not. He also admitted that IO had not requested any public person to join the investigation. He also admitted that IO had not served any local notice to local residence/neighbours. He also admitted that no arrival entry was made in the local PS, Rohini and no assistance of local police was taken. He admitted that during the investigation State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 25 of 71PS: Kotwali conducted by him from 21.05.2015 to 23.05.2015, he did not intimate any police station at Gautam Budh Nagar and he did not ask the local police officials to join the investigation. This witness could not tell the description and other questions regarding the factory i.e. Varsha Industry. He denied the suggestion that all the proceedings were conducted by him while sitting in the PS. He denied the suggestion that no case property was recovered from the possession of the accused persons and same was planted upon them.
42. PW29 Sh. Anil Sharma, Nodal Officer, Reliance Communication Ltd. proved CAF, Voter ID of subscriber and CDR with Cell Id chart of mobile no. 9312643950 issued in the name of Chander Pal as Ex. PW29/A, Ex. PW29/B and Ex. PW29/C. He also proved Certificate under Sec. 65B of The Evidence Act with respect of CDR as Ex. PW29/D and forwarding letter, Ex. PW 29/E. He also proved CAF and Voter ID of subscriber of mobile no. 9311025686 issued in the name of Santraj as Ex. PW23/F and Ex. PW29/F1. He further deposed that there was no call details generated during the period 01.01.2015 to 16.06.2015. He proved report, Ex. PW29/F2 in this regard.
43. PW30 Sh. Mansukhlal Sabzibhai Dhandukiya deposed that he was the proprietor of Manshukhlal Sabzibhai. He deposed that on 09.05.2015, 11094 grams of silver sent to Agra. He proved the bill of the same as Ex. PW6/X. In his crossexamination, he admitted that the bill was not prepared and silver was not handed over in his presence. He further deposed that he has no personal knowledge about any transaction/business as his whole business is State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 26 of 71PS: Kotwali managed by his son.
44. PW31 Sh. Sanjay Singh, Nodal Officer, Aircel Ltd., proved CAF, Driving License of subscriber, CDR with Cell ID chart of mobile no. 8285730095, issued in the name of Sonu, S/o of Chander Pal as Ex. PW31/A, PW31/A1 & Ex. PW31/A3. He also proved Certificate under Sec. 65B of The Evidence Act with respect of CDR as Ex. PW31/A4. In his crossexamination, he admitted that CAF, Ex. PW31/A does not bear the signature of subscriber Sonu.
45. PW32 Sh. Rakesh KumarII, Ld. ASCJcumJSCCcum Guardian Judge, proved TIP Proceeding of accused Ajeet Singh, Laxman, Lalit, Sanjeev and Harender @ Tori as Ex. PW8/A, Ex. PW32/A, Ex. PW32/B, Ex. PW32/C & Ex. PW32/D. He further deposed that accused Ajeet Singh was correctly identified by the witness and rest of the accused persons refused to join the TIP proceedings.
46. PW33 Pawan Singh, Nodal Officer, Vodafone Idea Ltd., has proved CAF, Pan Card & Voter ID of subscriber and CDR of mobile no. 9811741200 issued in the name of Santraj Nagar as Ex. PW33/A, Ex. PW33/A1, Ex. PW33/A2 and Ex. PW33/A3. He also proved Certificate under Sec. 65B of The Evidence Act with respect of CDR as Ex. PW33/A4. He also proved CAF, Voter ID of subscriber and CDR of mobile no. 8860111790 issued in the name of Krishna, S/o Ranjeet Singh as Ex. PW33/B, Ex. PW 33/B1 and Ex. PW33/B2. He also proved Certificate under Sec. 65B of The Evidence Act with respect of CDR as Ex. PW33/B3. State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 27 of 71PS: Kotwali He also proved CAF, Driving License of subscriber and CDR of mobile no. 8860884668 issued in the name of Narender Sharma, S/o Ram Chand as Ex. PW33/C, Ex. PW33/C1 and Ex. PW 33/C2. He also proved Certificate under Sec. 65B of The Evidence Act with respect of CDR as Ex. PW33/C3.
47. Accused Santraj @ Sante has admitted the genuineness of document pertaining to Sanction granted by Addl. DCP under Sec. 39 of Arms Act, Ex. PW27/T u/s 294 Cr.P.C. Thereafter, prosecution evidence was closed.
48. After closing of Prosecution Evidence, separate statements of the accused persons were recorded under Sec. 313 Cr.PC, wherein they denied all the charges against them. Accused Harender @ Tori took the defence that he was at his native village at the time of incident. He also stated that he never met any of the accused persons or hatched the plan or conspired with any accused persons to commit the alleged offences. He knew one Tahir who was initially made accused in the present case and used to speak to him on phone and for this reason he was implicated in the present case. Accused Sunil Rathore took the defence that he was not present at the spot at the time of incident. He also stated that the robbed articles were falsely planted upon him by the IO and the Xylo car has also been falsely seized from him. Accused Sanjeev stated that he has been falely implicated in the present case at the instance of neighbours of his inlaws as a fight took place between his inlaws and neighbours. Rest of accused persons stated that they are innocent and have been falsely implicated in the present case by the State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 28 of 71PS: Kotwali IO. Accused Harender @ Tori examined DW1 Vikas Kumar Tomar in his defence.
49. DW1 Sh. Vikas Kumar Tomar, deposed that accused Harender @ Tori was his childhood friend and they both are engaged in agricultural work. On 11.05.2015 at around 05:3006:00 am, accused Harender @ Tori was loading fodder/bhusa in a boggi and asked him to help in the said work. He helped accused Harender @ Tori in aforesaid work for around two and half hours. He proved his Aadhar card Ex. DW1/A (OSR) and his School Leaving Certificate, Ex. DW1/B (OSR).
50. Final arguments were advanced by Sh. Pankaj Kumar Ranga, Ld. Addl. PP for the State and Ld. Counsels for accused persons.
51. Ld. Addl. PP for the State argued that the prosecution has proved its case beyond reasonable doubt and all the prosecution witnesses have supported the prosecution story and have corroborated each other's version. To substantiate his argument, he argued that PW8 Sh. Govind has completely supported the prosecution's case. He also argued that PW11 Sh. Dileep has also corroborated version of PW8 Sh. Govind. He also argued that the case properties have been recovered from possession of accused persons and same have been duly proved by the prosecution beyond reasonable doubt. He also argued that the testimony of prosecution witnesses is of sterling quality and hence same should be relied upon. He also argued that since the prosecution has proved its case against all the accused persons beyond reasonable doubt, they State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 29 of 71PS: Kotwali should be convicted under all sections of law under which charges have been framed against them.
52. Per Contra Ld. Defence Counsels argued that the prosecution has miserably failed to prove its case beyond reasonable doubt. To substantiate their point, they argued that the investigation in the present case has been conducted in an arbitrary manner. They argued that PW8 Sh. Govind and PW11 Sh. Dileep who are the eye witness of alleged incident have admitted in their cross examination that IO had shown them the faces of accused persons before their TIP. They also argued that PW8 Govind also admitted that IO had told him the name of accused persons before recording of his examination in chief. They further argued that PW13 Hari Singh who is allegedly the eye witness of alleged incident has completely turned hostile. They also argued that the alleged scorpio car has not been recovered and the ownership of Xylo Car has not been proved. They also argued that the prosecution has proved the CDR of some mobile numbers which are not in name of accused persons and the said persons in whose names the said SIM cards has been issued have not been examined as PW. They also argued that the sellers of jewellery who allegedly sent the jewellery to Delhi were not joined in the investigation and the recovered case property was never shown to them. They also argued that eye witness Ram who allegedly brought the remaining cartons to the Office has not been examined as prosecution witness. They also argued that the testimony of prosecution witnesses are suffering from material contradictions. They also argued that since the State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 30 of 71PS: Kotwali prosecution has failed to prove its case against the accused persons beyond reasonable doubt, all the accused persons should be acquitted under all the sections of law under which charges have been framed against them.
53. In the present case, Charges U/s 120B, 201, 365, 395, 397, 412 IPC and u/s 25 Arms Act have been framed against the accused persons. These Sections have been defined as follows:
Section 120-B IPC provides punishment for criminal conspiracy which has been defined U/s 120 A IPC which reads as under:-
120 A. Criminal Conspiracy When two or more persons agree to do, or cause to be done-
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation: It is immaterial whether the illegal act is te ultimate object of such agreement, or is merely incidental to that object.
201. Causing disappearance of evidence of offence, or giving false information to screen offender Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal State Vs. Sunil & Ors.FIR No. 415/2015 Page No. 31 of 71
PS: Kotwali punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, if a capital offence - shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
if punishable with imprisonment for life - and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;
if punishable with less than ten years;
imprisonment - and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.
Illustrations A, knowing that B has murdered Z, assists B to hide the body with the intention of screening B from punishment. A is liable to imprisonment of either description for seven years, and also to fine.
365. Kidnapping or abducting with intent secretly and wrongfully to confine person.
Whoever kidnaps or abducts any person with intent State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 32 of 71PS: Kotwali to cause that person to be secretly and wrongfully confined, shall be punished with imprisonmentod either description for a term which may extend to seven years, and shall also be liable to fine.
395. Punishment for dacoity.
Whoever commits dacoity shall be punished with [imprisonment for life] or with rigorous imprisonment for a term which may extended to ten years, and shall also be liable to fine.
397. 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 cause 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.
412. Dishonestly receiving property stolen in the commission of dacoity.
Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe.
Section 25 Arms Act provides punishment for the possession of arms without any license which has been defined as under:-
(1) Whoever--
(a) [manufactures, obtains, procures], sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or State Vs. Sunil & Ors.FIR No. 415/2015 Page No. 33 of 71
PS: Kotwali
(b) shortens the barrel of a firearm or converts an imitation firearm into a firearm [or convert from any category of firearms mentioned in the Arms Rules, 2016 into any other category of firearms] in contravention of section 6; or
(d) brings into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term 5 which shall not be less than [seven years but which may extend to imprisonment for life] and shall also be liable to fine.
[(1A) Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall 7 not be less than [seven years but which may extend to fourteen years] and shall also be liable to fine.
[Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than seven years.] [(1AB) Whoever, by using force, takes the firearm from the police or armed forces shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.] (1AA) whoever manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer or has in his possession for sale, transfer, conversion, repair, test or proof, any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than 9 [ten years] but which may extend to imprisonment for life and shall also be liable to fine.] State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 34 of 71PS: Kotwali [(1AAA)] Whoever has in contravention of a notification issued under section 24A in his possession or in contravention of a notification issued under section 24B carries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall 11 not be less than [seven years but which may extend to imprisonment for life] and shall also be liable to fine.
(1B) Whoever--
(a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3; or
(b) acquires, has in his possession or carries in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section; or
(c) sells or transfers any firearm which does not bear the name of the maker, manufacturers number or other identification mark stamped or otherwise shown thereon as required by sub-section (2) of section 8 or does any act in contravention of sub- section (1) of that section; or
(d) being a person to whom sub-clause (ii) or sub- clause (iii) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section; or
(e) sells or transfers, or converts, repairs, tests or proves any firearm or ammunition in contravention of clause (b) of sub-section (1) of section 9; or
(f) brings into, or takes out of, India, any arms or ammunition in contravention of section 10; or State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 35 of 71 PS: Kotwali (g) transports any arms or ammunition in contravention of section 12; or
(h) fails to deposit arms or ammunition as required by sub-section (2) of section 3, or sub-section (1) of section 21; or
(i) being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under section 44, to maintain a record or account or to make therein all such entries as are required by such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or account or the making of copies of entries therefrom or prevents or obstructs the entry into any premises or other place where arms or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or ammunition or refuses to point out where the same are or is manufactured or kept, shall be punishable with imprisonment for a term which shall not be less 12 than [two years but which may extend to five years and shall also be liable to fine] and shall also be liable to fine:
Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less 13 than [two years].] [(1C) Notwithstanding anything contained in sub- section (1B), whoever commits an offence punishable under that sub-section in any disturbed area shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation.--For the purposes of this sub-section, disturbed area means any area declared to be a disturbed area under any State Vs. Sunil & Ors.FIR No. 415/2015 Page No. 36 of 71
PS: Kotwali enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order, and includes any areas specified by notification under section 24A or section 24B.] (2) Whoever being a person to whom sub-clause (i) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both.
[(3) Whoever sells or transfers any firearm, ammunition or other arms--
(i) without informing the district magistrate having jurisdiction or the officer in charge of the nearest police station, of the intended sale or transfer of that firearm, ammunition or other arms; or
(ii) before the expiration of the period of forty-five days from the date of giving such information to such district magistrate or the officer in charge of the police station, in contravention of the provisions of clause (a) or clause (b) of the proviso to sub-section (2) of section 5, shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.] (4) Whoever fails to deliver-up a licence when so required by the licensing authority under sub-section (1) of section 17 for the purpose of varying the conditions specified in the licence or fails to surrender a licence to the appropriate authority under sub- section (10) of that section on its suspension or revocation shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.
(5) Whoever, when required under section 19 to give his name and address, refuses to give such name and address or gives a State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 37 of 71PS: Kotwali name or address which subsequently transpires to be false shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to two hundred rupees, or with both.
[(6) If any member of an organised crime syndicate or any person on its behalf has at any time has in his possession or carries any arms or ammunition in contravention of any provision of Chapter II shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.
(7) Whoever on behalf of a member of an organised crime syndicate or a person on its behalf, -
(i) manufactures, obtains, procures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(ii) shortens the barrel of a firearm or converts an imitation firearm into a fire arm or converts from any category of firearms mentioned in the Arms Rules, 2016 into any other category of firearms in contravention of section 6; or
(iii) brings into, or takes out of India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.
Explanation.--For the purposes of sub-sections (6) and (7),--
(a) organised crime means any continuing unlawful activity by any person, singly or collectively, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 38 of 71PS: Kotwali himself or any person;
(b) organised crime syndicate means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime.
(8) Whoever involves in or aids in the illicit trafficking of firearms and ammunition in contravention of sections 3, 5, 6, 7 and 11 shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.
Explanation.--For the purposes of this sub-section, illicit trafficking means the import, export, acquisition, sale, delivery, movement or transfer of firearms and ammunition into, from or within the territory of India, if the firearms and ammunition are not marked in accordance with the provisions of this Act or are being trafficked in contravention of the provisions of this Act including smuggled firearms of foreign make or prohibited arms and prohibited ammunition.
(9) Whoever uses firearm in a rash or negligent manner or in celebratory gunfire so as to endanger human life or personal safety of others shall be punishable with an imprisonment for a term which may extend to two years, or with fine which may extend to rupees one lakh, or with both.
54. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law. I have also considered the judgments relied upon by the Ld. Addl. PP for the state as well as Ld. Counsels for accused persons.
55. PW-8 Sh. Govind, PW-11 Sh. Dilip and PW-13 Hari Singh are the star witnesses of the prosecution. PW-8 Sh. Govind, PW-11 Sh. Dilip and PW-13 Hari Singh are the eye witness of the alleged incident and they are also the victims/injured in the present case. As per prosecution story, the abovesaid witnesses were abducted by the State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 39 of 71PS: Kotwali accused persons and they were dropped by them at a secluded place in Noida from where they return and narrated the entire incident to the IO. Therefore the testimonies of these three witnesses has to be appreciated minutely as per the established principles of law.
56. PW-8 Sh. Govind deposed that 05 persons deboarded from Scorpio car and they apprehended him and asked him to come to the PS and also threatened his colleague Dilip. He further deposed that he, Dilip, Sunil and Hari were made to sit in the said Scorpio car and they were threatened, thrashed and beaten. However PW-11 Sh. Dilip deposed that the accused persons after deboarding from the Scorpio car started beating Govind and he was not given any beating. Thus, there is contradiction in testimony of PW-8 Sh. Govind and PW-11 Sh. Dilip w.r.t the same facts. This raises doubt on the testimony of both the witnesses.
57. PW-8 Sh. Govind deposed that one of the accused namely Harinder was wearing police uniform and he was having pistol in his hand. However, PW-11 Sh. Dilip deposed that two persons were wearing police uniform. In his cross-examination PW-11 further deposed that accused Lalit @ Babloo was wearing police uniform but he did not remember another person who was wearing police uniform. He also deposed that he did not remember as to who was carrying the pistol. In his cross-examination he specifically deposed that the person who was carrying the pistol was not present in the Court. He specifically deposed that accused Harinder @ Tori was not the person who was carrying the pistol on the date of incident. Thus, there is material contradiction in the testimonies of PW-8 Sh.
FIR No. 415/2015 Page No. 40 of 71PS: Kotwali Govind and PW-11 Sh. Dilip w.r.t same set of facts and hence serious doubts have been created on the prosecution story and hence the versions of both the abovesaid witnesses cannot be relied upon.
58. PW-8 Sh. Govind deposed that he saw behind and noticed that another car make Xylo reached there and the persons who were in Xylo car got down and started picking the four cartons from the thela. However in his cross-examination, he deposed that he had not seen the Xylo car behind the scorpio car. Thus, PW-8 Sh. Govind has turned hostile w.r.t the arrival of Xylo car at the spot and loading of the cartons by the accused persons int the said car. Moreover, PW-11 Dilip who was sitting with PW-8 Sh. Govind has not deposed anything with respect to the arrival of said Xylo car and loading of the cartons in said car by accused persons despite the fact that he was sitting in the same car with PW-8 Sh. Govind. Thus, there is material contradiction in testimony of PW-8 Sh. Govind and PW-11 Sh. Dilip w.r.t the same set of facts and hence it raises serious doubts on the veracity of PW-8 Sh. Govind and PW- 11 Sh. Dilip.
59. PW-8 Sh. Govind deposed that he and his associates were taken in Scorpio car and were left at secluded place at Noida and they were told by accused Harinder that "sidha chale jao varna goli maar denge" however PW-11 Sh. Dilip deposed that they were thrown out from the running car. Contrary to the versions of PW-8 Sh. Govind and PW-11 Sh. Dilip, PW-13 Sh. Hari Singh has deposed that the accused persons left them in a jungle. Thus, there State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 41 of 71PS: Kotwali are three different versions of the abovesaid witnesses on record which cannot stand together and hence cannot be relied upon.
60. PW-8 Sh. Govind has deposed that they were thrashed and beaten up. PW-11 Sh. Dilip deposed that PW-8 Sh. Govind was given beatings. PW-13 Sh. Hari Singh deposed that he got unconscious in the big car in which he was abducted. From the versions of PW-8 Sh. Govind, PW-11 Sh. Dilip and PW-13 Sh. Hari Singh, it can be concluded that all the abovesaid three witnesses had sustained injuries in the alleged incident. However, despite registration of FIR on the same day before they returned from Noida, they were not taken to the hospital for treatment nor their MLC in this regard was prepared. It raises serious doubts on the prosecution story.
61. PW-8 Sh. Govind deposed that Sunil and Hari were pulling the rehdi/thela and one Raj Kumar Dhakewala was also with them. However, PW-11 Sh. Dilip deposed that he alongwith PW-8 Govind, accused Sunil and one Ram Pal or Raj Pal were pulling the said rehdi/thela. As per prosecution story, there was no person with the name of Ram Pal or Raj Kumar however one person namely Ram Kumar was present at the spot of incident at the time of incident. The said person was not traceable and hence could not be examined as PW. The said Ram Kumar allegedly brought the remaining cartons to the office of the company but he could not be examined as PW to corroborate the prosecution story. Thus, it has weakened the prosecution case.
FIR No. 415/2015 Page No. 42 of 71PS: Kotwali
62. PW-8 Sh. Govind deposed that he had visited the PS only once i.e. on 13.05.2015. However, as per the prosecution story, PW- 8 Sh. Govind visited the PS on the date of incident i.e. on 11.05.2015. PW-27 Retd. SI Ratan Pal has specifically deposed that victim persons namely Hari Singh, Sunil, Govind and Dilip reached there and he recorded their statement u/s 161 Cr.P.C. Thus it raises serious doubts on the veracity of PW-8 Sh. Govind.
63. PW-8 Sh. Govind in his cross-examination deposed that the police officials had taken his signatures on 05-07 blank papers. It raises serious doubts on the proceedings conducted by the IO during the investigation of the present case.
64. PW-13 Sh. Hari Singh has completely turned hostile regarding the identity of accused persons. He deposed that he became unconscious in the big car. He also deposed that police never inquired regarding the present incident. He also deposed that he cannot tell the make and colour of the car in which he was abducted. He denied the suggestions that two persons deboarded from the car and one of them was wearing police uniform and was having a pistol. He has also not deposed anything w.r.t the arrival of Xylo car at the spot and loading of the cartons in the said Xylo car. The version of PW-13 Sh. Hari Singh has put a dent on prosecution story due to which the prosecution story has become unreliable.
65. PW-8 Sh. Govind deposed that accused persons kept his mobile phone and Rs. 6000/- and they also took the cash and mobile phone of Dilip also. PW-11 Sh. Dilip deposed that accused persons had State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 43 of 71PS: Kotwali taken all the money of Govind but he has not deposed that accused persons had taken mobile phone of Govind also. He has also not deposed that his money and mobile were also taken by the accused persons. PW-13 Sh. Hari Singh denied the suggestion that accused persons robbed mobile phone and cash from Govind. PW-12 Sh. Ramesh Bhai denied the suggestion that PW-8 Govind made a call to him and told him that robbers have robbed their mobile phones. During the investigation, the said mobile phone and cash could not be recovered. Thus, due to the contradictory versions of all the abovesaid witnesses w.r.t the robbery of mobile phones and cash , serious doubts have been created on the prosecution story.
66. PW-8 Sh. Govind deposed that after they were left at Noida, they walked about 02 Km and met a rickshaw puller and used his mobile phone to make call to PW-12 Sh. Ramesh Bhai and informed him about the incident. However, PW-12 Sh. Ramesh Bhai has denied in his cross-examination that he had received phone call from PW-8 Sh. Govind who told him that robbers have robbed their mobile and cash at some unknown location. Thus, the version of PW-8 Sh. Govind has become doubtful in this regard. Moreover, the rickshaw puller whose mobile phone was used by PW-8 Sh. Govind has not been examined as PW and no investigation in this regard has been conducted by the IO which raises serious doubts on the prosecution story.
67. Accused persons have taken the defence that they were shown to the victims in the PS and hence all accused persons except Ajeet refused to participate in the TIP proceedings. PW-8 Sh.
FIR No. 415/2015 Page No. 44 of 71PS: Kotwali Govind as well as PW-11 Sh. Dilip in their cross-examination have admitted that accused person were shown to them in the police station. PW-11 Sh. Dilip has specifically admitted that accused Dilip was shown to him in the police station. PW-8 Sh. Govind admitted in his cross-examination that the names of accused persons were told to him by the IO before the recording of his examination in chief. The evidentiary value of identification of accused persons in such circumstances is to be seen in the light of law laid down by the Hon'ble Supreme Court of India and Hon'ble High Court Of Delhi in this regard.
68. Hon'ble Supreme Court of India in judgment titled as "Shaikh Umar Ahmed Shaikh & Anr Vs. State of Maharashtra cited as (1998) 5 SCC 103" observed as under:-
".......But the question arises: what value could be attached to the evidence of identity of accused by the witnesses in the Court when the accused were possibly shown to the witnesses before the identification prade in the police station. The designated Court has already recorded a finding that there was a strong possibility that the suspects were shown to the witnesses. Under such circumstances, when accused were already shown to the witnesses, their identification in the Court by the witnesses was meaningless. The statement of witnesses in the Court identifying the accused in the Court lost all its value and could not be State Vs. Sunil & Ors.FIR No. 415/2015 Page No. 45 of 71
PS: Kotwali made the basis of recording conviction against the accused...."
69. In the present case also as per the testimony of PW- Sh. Govind and PW-11 Sh. Dilip, the accused persons were shown to them in PS and their names were also told by the IO before the recording of examination in chief of PW-8 Sh. Govind. Applying the law laid down by Hon'ble Supreme Court of India in Shaikh Umar Ahmed Shaikh (Supra), this Court is of considered opinion that the identification of the accused persons by PW-8 Sh. Govind and PW-11 Sh. Dilip is meaningless and it has lost its evidentiary value and hence it cannot be relied upon.
70. All the accused persons are facing trial u/s 120 B for the offence of criminal conspiracy. Section 120 B provides punishment for the commission of offence of criminal conspiracy. The offence of criminal conspiracy is a substantive offence. When two or more person agree or cause to be done an illegal act or an act which is not illegal by illegal means, the agreement entered by such persons will constitute the offence of criminal conspiracy. The most important ingredient of offence of criminal conspiracy is the agreement between two or more person to do an illegal act. It is intention to commit crime and joining hands with persons having the same intents. The offence of criminal conspiracy is a separate and distinct offence.
71. Generally the conspiracy is hatched up in utmost secrecy and in these circumstances it becomes very difficult to prove the same State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 46 of 71PS: Kotwali by direct evidence. The conspiracy in such cases is to be incurred on the facts and circumstances of the case. The circumstances of a particular case before, during and after the commission of offence have to be taken into consideration to infer the criminal conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. The term "Criminal Conspiracy" has been explained by the Hon'ble Apex Court in Judgment titled as 'Major E.G. Barsey Vs. State of Bombay (1962) 2 SCR195' wherein Hon'ble Apex Court observed as under:-
"31.... The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of number of acts".
Similarly, Hon'ble Supreme Court of India in 'K.R. Purushothaman Vs. State cited as AIR 2006 SC 35' has held that:-
to constitute a conspiracy, meeting of minds of two or more person for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every details of State Vs. Sunil & Ors.FIR No. 415/2015 Page No. 47 of 71
PS: Kotwali conspiracy. Neither it is necessary that everyone of the conspirator take active part in the commission of each and every conspiratorial acts.
72. Thus, the criminal conspiracy in the present case is to be inferred from the facts and circumstances of the present case. In the present case, the evidence of conspiracy has been brought on record through the disclosure statement of accused persons and through the CDR of mobile phone numbers of accused persons.
73. PW-7 Sh. Prashant Kumar, alternate Nodal Officer of Vodafone Idea has proved CAF and CDR of mobile phone numbers 8860884668 in name of one Narender Sharma, 8860111790 in name of Krishan, 9811741200 in name of Sant Raj Nagar, 8376834352 in name of Fair Deals Car Pvt. Ltd being used by Pankaj, 9540528202 in name of Sushma Devi and 9540303097 in name of Rahul. PW-23 Sh. Surender Kumar has proved CAF and CDR of mobile phone number 9599633318 in name of Raj Kumar Bansal and 9810791053 in name of Chandra Pal. PW-24 Sh. Pawan Kumar, Nodal Officer, Vodafone Idea Ltd. has proved the CDR and CAF of mobile phone numbers 7500247459 and 8510912942 issued in name of Sh. Dharmender Singh and Sh. Manoj Kumar. The prosecution has tried to establish criminal conspiracy through the call record of abovesaid mobile phone numbers. Though, some of the mobile phone numbers are in name of accused persons but the remaining mobile phone numbers are in the name of other persons namely Narender Sharma, Smt Krishna, State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 48 of 71PS: Kotwali Fair Deals Car Pvt. Ltd. Sushma Devi, Rahul, Raj Kumar Bansal, Dharmender Singh and Manoj Kumar. The prosecution has not examined all these persons to prove that the said mobile phones were being used by the accused persons to enter into criminal conspiracy with each other and to commit the alleged offence. Accused Harinder @ Tori in his statement recorded u/s 313 Cr.P.C has admitted the CDR record of mobile phone number 7500247459. As per the record, the location of said mobile phone was out of Delhi from 06.05.2015 till the date of his arrest and prosecution could not establish that he was having communication with co-accused persons with the said phone. The evidentiary value of the CDR record is to be seen in the light of law laid down by Hon'ble Supreme Court of India in this regard.
74. Hon'ble Supreme Court of India in judgment titled as 'Kiriti Pal Vs. State of West Bengal cited as (2015) 11 SCC 178' has held that telephonic calls may raise suspicion against the accused but mere suspicion itself cannot take the place of proof. Thus, the evidence in form of CDR is only corroborative in nature and conviction cannot be based merely on the basis of CDR record. Thus, in view of the facts and circumstances of the case, this Court is of the considered opinion that prosecution has failed to establish that the accused persons entered into criminal conspiracy to commit the alleged offences or that the alleged offences were committed by the accused persons in pursuance of criminal conspiracy entered by them.
75. No independent eye witness who might have seen the commission of alleged offences of dacoity and State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 49 of 71PS: Kotwali kidnapping/abduction of PW-8 Sh. Govind, PW-11 Sh. Dilip and PW-13 Sh. Hari Singh has been examined by the prosecution. No CCTV footage of the commission of alleged offence has been collected by the IO during investigation. This has weakened the prosecution case.
76. No TIP of case property i.e. of the recovered jewellery articles and the country made pistol has been got conducted through PW-8 Sh. Govind, PW-11 Sh. Dilip and PW-13 Sh. Hari Singh and the owners/suppliers of the jewelery articles. Moreover, the recovered country made pistol was not shown to the abovesaid witnesses at the time of their examination in the Court. This has also weakened the prosecution case.
77. As per the prosecution case, one Scorpio car and one Xylo car were used by the accused persons in the commission of offence. None of the prosecution witnesses including PW-8 Sh. Govind, PW-11 Sh. Dilip and PW-13 Sh. Hari Singh have stated about the registration number of the abovesaid vehicle. The alleged Scorpio car could not be recovered during the investigation. The alleged Xylo car has been recovered from possession of accused Sunil Rathore. However, the prosecution has not established the ownership of the said Xylo car and owner of said car has not been examined as PW who could have proved that the alleged car was used by the accused persons in the commission of alleged offence. The identity of said Xylo car has not been established through PW- 8 Sh. Govind, PW-11 Sh. Dilip and PW-13 Sh. Hari Singh. This has raised serious doubts on the prosecution story.
78. PW-8 Sh. Govind deposed that accused Harinder @ Tori State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 50 of 71PS: Kotwali was wearing police uniform. During the investigation, the said police uniform could not be recovered by the IO nor the source of that uniform has been brought on record by the prosecution. This has weakened the prosecution case.
79. PW-26, HC Manjit Singh deposed that the jewellery articles were recovered in his presence by the IO however, he deposed that he cannot identify the silver items recovered during investigation. He further deposed that he cannot identify the accused persons also. This raises serious doubt on the veracity of PW-26 HC Manjit Singh as well as on the alleged recovery by the IO.
80. In the present case, the robbed articles i.e. silver jewellery/silver has been recovered from the possession of accused persons namely Chandra Pal @ Mistri, Laxman Singh @ Bable, Ajit, Lalit Kumar @ Babloo @ Nepali, Sonu, Maan Singh @ Raj, Sanjeev and Sunil Rathore. The country made pistol/katta has also been recovered from accused Sant Raj @ Sante. The recovery of the case property has to be proved by the prosecution beyond reasonable doubt in compliance with the law laid down in this regard by Hon'ble Supreme Court of India.
81. Section 27 of Indian Evidence Act is an exception to Section 25 and Section 26 of the said act. Section 27 is based on the doctrine of confirmation by subsequent events. The principle u/s 27 of Indian Evidence Act is based on the principle that if any fact is discovered on the basis of disclosure statement of accused, the discovery of said fact is a guarantee that the information given by the accused in his disclosure statement is true. Such information State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 51 of 71PS: Kotwali may be confessional or non-inculpating in nature but if any new fact is discovered from such information it will be considered as a reliable information.
82. The fact discovered on the basis of disclosure of statement of accused must be relevant facts. Such information must be given by the person who is accused of an offence and the recovery of article or discovery of fact must be based upon the information given by such accused.
83. Hon'ble High Court of Delhi in Judgment titled as Mohammad Burhan Vs. Directorate of Revenue Intelligence, cited as 'MANU/DE/3131/2017' has held that joining of independent public witness is not mere a formality; it is a vital safeguard to avoid false implication of individual. In number of cases either no independent public witnesses are associated on the pretext that none of them is available; in some cases only passerbyes are requested to join the investigation. Non-examination of independent public witness in the instant case is serious flaw and adverse inference is to be drawn against the prosecution for withholding them.
84. Similarly Hon'ble Supreme Court of India in Judgment titled as Ramanand@Nand Lal Bharti Vs. State of Uttar Pradesh cited as 2022 SCC online SC 1396 has observed as under:-
"52. Section 27 of the Evidence Act, 1872 reads thus:
'27 How much of information received from the accused may State Vs. Sunil & Ors.FIR No. 415/2015 Page No. 52 of 71
PS: Kotwali be proved-Provided that, when any fact is deposed to as discovered in consequence of information, received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not as relates distinctly to the fact thereby discovered may be proved.
If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire, in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of that independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used State Vs. Sunil & Ors.FIR No. 415/2015 Page No. 53 of 71
PS: Kotwali in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two particular place anything like the weapon of offence of blood stained clothes or any other article is discovered then the part of the entire process expects the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.
85. In the present case, IO has not examined any independent public witness at the time of recovery of alleged case properties. Even no notice u/s 160 Cr.P.C was given to any person in this regard. PW-25, SI Yogender, PW-26 HC Manjit, PW-27 IO Retd. SI Ratan Lal and PW-28 Insp. S.K. Gupta in their cross-examination have admitted that no public persons was joined in the investigation by the IO at the time of recovery of abovesaid case property.
87. Applying the law laid down by the Hon'ble Supreme Court of India in Mohammad Burhan (Supra) and Ramanand@Nand Lal Bharti (Supra), this Court is of considered opinion that since no independent public witness were joined in the investigation at the time of recovery of alleged case properties including the recovery of jewellery articles, car, other articles and countrymade pistol has become doubtful. Since, the recovery of pistol in the present case is doubtful. The sanction given by the DCP u/s 39 of Arms Act Ex. PW27/T has become irrelevant. Thus the prosecution has failed to prove the recovery of case properties from the possession of the accused persons.
FIR No. 415/2015 Page No. 54 of 71PS: Kotwali
88. The dacoity of the jewellery articles took place in Delhi. The jewellery articles from possession of accused Lalit Kumar @ Babloo @ Nepali were recovered from his village Kala Khuri, Distt. Bulandsahar, U.P. The jewellery articles from possession of accused Ajit were recovered from his village Kalyanpuri, Distt. Hapur, U.P. The jewellery articles from possession of accused Sanjeev were recovered from his village Pali, Mohtabad, Ballabgarh, Haryana. The jewellery articles from possession of accused Sunil Rathore were recovered from his village Bilau, Distt. Bhind, Madhya Pradesh. The country made pistol/katta from possession of accused Sant Raj @ Sante was recovered from his office situated at Sector -18, Noida, Uttar Pradesh. Some of the accused persons were arrested from different States at the time of recovery of case property. During the whole investigation, the IO has not contacted the local police of the concerned States to join the investigation.
Hon'ble High Court Of Delhi in judgment titled as Sandeep Kumar Vs. The State (Govt. of NCT of Delhi) W.P (Crl) no. 2189/2018 decided on 12.12.2019 while accepting the recommendations of committee mentioned in para no. 15 and 16 of this judgment has laid down the certain guidelines w.r.t the arrest of accused persons and recovery thereof pertaining to investigation to be conducted in another State other than where the alleged offence has been committed which are as under:-
"1. The Police Officer after assignment of the case to him, must seek prior permission/sanction of the higher/superior State Vs. Sunil & Ors.FIR No. 415/2015 Page No. 55 of 71
PS: Kotwali officers in writing or on phone (in case of urgency) to go out of State/UT to carry out investigation.
2. In a case when the police officer decides to effect an arrest, he must set out the facts and record reasons in writing disclosing the satisfaction that arrest is necessary for the purpose of investigation. At first instance, he should move the Jurisdictional Magistrate to seek arrest/search warrants under Section 78 and 79 Cr PC except in emergent cases when the time taken is likely to result in escape of the accused or disappearance of incriminating evidence or the procurement of arrest/search warrant would defeat the purpose. The Police Officer must record reasons as to what were the compelling reasons to visit other State without getting arrest/search warrants.
3. Before proceeding outside the State, the police officer must make a comprehensive departure entry in the Daily Diary of his Police Station. It should contain names of the police officials and private individuals accompanying him; vehicle number; purpose of visit; specific place(s) to be visited; time and date of departure.
4. If the possible arrestee is a female, a lady police officer be made part of the team. The Police Officers should take their identity cards with them. All police officers in the team should be in uniform; bear accurate, visible and clear identification and name tags with their designations.
5. Before visiting the other State, the Police State Vs. Sunil & Ors.FIR No. 415/2015 Page No. 56 of 71
PS: Kotwali Officer must endeavour to establish contact with the local Police Station in whose jurisdiction he is to conduct the investigation. He must carry with him the translated copies of the Complaint/FIR and other documents in the language of the State which he intends to visit.
6. After reaching the destination, first of all, he should inform the concerned police station of the purpose of his visit to seek assistance and co-operation. The concerned SHO should provide/render all legal assistance to him. Entry to this effect must be made at the said police station.
7. After reaching the spot of investigation, search, if any should be strictly conducted in compliance of the procedure laid down u/s 100 Cr PC. All endeavour should be made to join independent public witnesses from the neighbourhood. In case of arrest, the police officer must follow the procedure u/s 41A and 41B and Section 50 and 51 Cr PC. The process of arrest carried out by the police must be in compliance with the guidelines given in DK Basu case (Supra) and the provisions of CrPC.
8. The arrested person must be given an opportunity to consult his lawyer before he is taken out of State.
9. While returning, the police officer must visit the local police station and cause an entry made in the Daily Diary specifying the name and address of the person(s) being taken out of the State; articles if any, recovered. The victim's name be also indicated.
State Vs. Sunil & Ors.FIR No. 415/2015 Page No. 57 of 71
PS: Kotwali
10. Endeavor should be made to obtain transit remand after producing the arrestee before the nearest Magistrate unless exigencies of the situation warrant otherwise and the person can be produced before the Magistrate having jurisdiction of the case without infringing the mandate of S. 56 and 57 of Cr.P.C. within 24 hours.
11. The magistrate before whom the arrestee is produced, must apply his mind to the facts of the case and should not grant transit remand mechanically. He must satisfy himself that there exists material in the form of entries in the case diary that justifies the prayer for transit remand. The act of directing remand of an accused is fundamentally a judicial decision. The magistrate does not act in executive capacity while ordering detention of the accused. He must ensure that requirements of S. 41 (l)(b) are satisfied. The police officer must send the case diary along with the remand report so that the magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. The magistrate should briefly set out reasons for his decision.
(Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314)
12. Another mandatory procedural requirement for the Magistrate considering a transit remand application is spelt out in State Vs. Sunil & Ors.FIR No. 415/2015 Page No. 58 of 71
PS: Kotwali Article 22 (1) of Constitution of India. This entitles the person arrested to be informed as soon as may be the grounds of such arrest. The Magistrate has to ensure that the arrested person is not denied the right to consult and to be defended by a legal practitioner of his choice. The Magistrate should ask the person arrested brought before him whether in fact he has been informed of the grounds of arrest and whether he requires to consult and be defended by any legal practitioner of his choice. (DK Basu, Supra) After the pronouncement of this judgment by the Hon'ble Supreme Court, new Sections 41A to 41D have been added to prevent unnecessary arrest and misuse of powers. Denying a person of his liberty is a serious matter.
13. In terms of S. 41C, control rooms be established in every district. Names and addresses of the persons arrested and designation of the Police Officers who made the arrest be displayed. Control Room at State level must collect details of the persons so arrested.
14. The police officer must record all the proceedings conducted by him at the spot and prepare an 'arrest memo' indicating time, date of arrest and name of the relation/friend to whom intimation of arrest has been given. It must reveal the reasons for arrest.
15. Since the arrestee is to be taken out of his State to a place away where he may not have any acquaintance, he may be permitted to take along with him (if possible), his family member/acquaintance to remain with him till he is produced before the jurisdictional Magistrate. Such family member would be State Vs. Sunil & Ors.FIR No. 415/2015 Page No. 59 of 71
PS: Kotwali able to arrange legal assistance for him.
16. The arrested person must be produced before the jurisdictional Magistrate at the earliest, in any case, not beyond 24 hours from the date of arrest excluding the journey time so that arrest of such person and his detention, if necessary, may be justified by a judicial order. The 24 hours period prescribed u/s 57 Cr PC is the outermost limit beyond which a person cannot be detained in police custody. It does not empower a police officer to keep a person in police station a minute longer than is necessary for the purpose of investigation and it does not give him an absolute right to keep a person till 24 hours.
17. On arrival at the police station, the police officer must make an arrival entry in the record and indicate the investigation carried out by him, the person arrested and the articles recovered. He should also inform his senior police officers/SHO concerned about it immediately. The superior Police Officer shall personally supervise such investigation.
18. The police officer should effect arrest u/s 41(l)(b) Cr PC only when he has reasonable suspicion and credible information. He must satisfy himself about the existence of the material to effect arrest. There must be definite facts or averments as distinguished from vague surmises or personal feelings. The materials before him must be sufficient to cause a bona-fide belief. He cannot take shelter under another person's belief or judgment. He must affect arrest at his own risk and responsibility as the effect of illegal arrest could be commission of offence of wrongful State Vs. Sunil & Ors.FIR No. 415/2015 Page No. 60 of 71
PS: Kotwali confinement punishable u/s 342 IPC. Burden lies on the IO to satisfy the Court about his bona-fide. No arrest can be made because it is lawful for the police officer to do so. Denying a person of his liberty is a serious matter.
19. Medical examination soon after arrest to avoid possibility of physical torture during custody should be conducted.
20. The IO must maintain a complete and comprehensive case diary indicating the investigation carried out by him.
21. The log book of the vehicle used for transportation must be maintained and signed. The IO must indicate whether the vehicle was official or a private one; name of its driver and how and by whom it was arranged. Only official vehicle should be used for transportation to the extent possible.
22. At the time of recovery of the prosecutrix, the police officer, if he is satisfied that she is adult, should ascertain from her at the spot, whether she was present there with her free will. If the victim/prosecutrix is not willing to accompany the police officer or her relatives, the police officer must not exert force on the prosecutrix to take her away against her wishes. However, if the prosecutrix/victim of her own accord expresses willingness to accompany the police officer/relatives, her consent in writing should be obtained at the spot.
23. In case where the police officer finds the victim/prosecutrix to be a 'minor', soon after recovery, she should be produced before the State Vs. Sunil & Ors.FIR No. 415/2015 Page No. 61 of 71
PS: Kotwali local Child Welfare Committee for further decision regarding her custody. She must not be made to stay in the Police Station during night hours.
24. Statement of the prosecutrix u/s 164 Cr.P.C. must be recorded at the earliest.
25. MHA/Central Govt/Commissioner of Police must frame suitable guidelines for police officers to render all suitable assistance. The failure to adhere to the rules/guidelines should render the police officer liable for departmental action as well as contempt of the Court.
26. The public prosecutor should provide required assistance to the police officer visiting his State at the time of seeking transit remand.
27. The MHA/State Government should circulate the Rules/Guidelines/Notifications etc from time to time to the Police officers in the State to create awareness. Periodically training should be provided to the Police Officers to sensitize them.
28. Instructions/Guidelines of similar nature should exist in all the States/UTs for speedy, smooth and effective inter-State investigation.
29. The delinquent Police Officer can be directed to pay compensation under the public law and by way of strict liability."
Hon'ble High Court Of Delhi in the abovesaid judgment has reiterated the principles already laid down for the purpose of State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 62 of 71PS: Kotwali conducting investigation in the other States and the protocol to be followed at the time of arrest of accused persons and the recovery of case properties.
89. PW-28 Insp. S.K Gupta in his cross-examination has admitted that he did not intimate any police official at Gautam Budh Nagar regarding the investigation of the present case. Similarly, PW- 27 Retd IO SI Ratan Lal has also not visited the local PS of different places out of Delhi from where the alleged recovery was effected nor he joined local police in the investigation in the present case. PW-27 Retd. SI Ratan Lal, PW-28 Insp. S.K. Gupta have not proved the DD entries made by them while leaving for investigation in other States nor they have proved any documents showing permission sought by them for visiting to other States for investigation in the other State. Thus, PW-27 Retd. SI Ratan Lal as well as PW-28 Insp. S.K Gupta did not follow the protocol of investigation which was required to be followed by them while conducting investigation in other States. In these circumstances, the investigation conducted by PW-27 Retd. SI Ratan Lal as well as PW-28 Insp. S.K Gupta has become tainted and the alleged recovery have become doubtful.
90. As per the prosecution story, the jewellery articles were sent from Gujrat to Delhi through courier service provider and same were to be obtained by PW-6 Sh. Amit Kumar Barot who was partner cum Manager in M/s Raj Kumar, Arvind Kumar. PW-17 Sh. Mahesh Bhai Harji Bhai deposed that he had sent the silver jewellery for Mathura UP and not for Delhi. Similarly, PW-30 Sh. Manshukh Lal Sabzi Bhai Dhandukiya also deposed that he had sent State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 63 of 71PS: Kotwali the said jewellery to Agra, UP and not to Delhi. The prosecution has failed to prove as to how he jewellery which was being sent to Mathura and Agra was delivered in Delhi. The said jewellery articles were kept in sealed cartons and PW-6 Sh. Amit Kumar had no occasion to seize those articles at any point of time. Prosecution has examined the persons who were the owners of alleged jewellery articles who sent them to Delhi through courier and the said witnesses are PW-15 Sh. Sampatram Sitaram Mane, PW-16 Sh. Prashant Rameshbhai Khunt, Sh. Mahesh Bhai Haraji Bhai, PW-18 Sh. Bharat Bhai Natha Bhai Vekariya, PW-19 Sh. Vinod Bhai Govind Bhai Bhalsod, PW-20 Sh. Mahender Bhai Jivraj Bhai Patel, PW-21 Sh. Kriti Kumar Jivan Lal Adesra and PW-30 Sh. Mansukhlal Sabjibhai Dhandukiya. All these witnesses were never joined in the investigation at the time of recovery of case properties i.e. the jewellery articles. These persons were never joined in the investigation by the IO for the reasons best known to him. The TIP of the case property was also not conducted through the abovesaid witnesses. The case property was also not released to them but same was released to PW-6 Sh. Amit Kumar Barot and a panchnama in this regard Ex. PW6/AF was prepared in this regard. At the time of release of case property, 63 photographs of recovered jewellery articles Ex. PW6/P-1 were also taken. However, neither the panchnama Ex. PW6/AF nor the 63 photographs Ex. PW6/P-1 were signed by the accused persons from whose possession the said jewellery articles were recovered.
91. Hon'ble High Court of Delhi in judgment titled as 'Manjit Singh Vs. State cited as MANU/DE/2131/2014 while dealing with State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 64 of 71PS: Kotwali the evidentiary value of panchnama and photographs of release case property observed as under:-
"59. the valuable articles seized by the police may be released to the person, who in the opinion of the Court, is lawfully entitled to claim such as complainant at whose house theft, robbery or dacoity has taken place, after preparing a detailed panchnama of such articles; taking photographs of such articles and a security bond.
60. The photographs of such articles should be attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Whenever necessary, the Court may get the jewellery articles value from a Government approved valuer".
If the abovesaid conditions are satisfied, the case property need not to be produced before the Court and the panchnama and the photographs duly attested/countersigned by the complainant, the accused and by the person to whom the case property is released can be used as secondary evidence during the trial.
92. In the present case, neither the original silver jewellery articles were produced before the Court nor they ever got identified from the owners of said jewellery articles and only photographs of the jewellery articles were exhibited but these were not attested and countersigned by the accused persons. Applying the law laid down by the Hon'ble High Court Of Delhi in Manjit Singh (Supra), this Court is of considered opinion that neither the identity of robbed and recovered jewellery articles were fixed nor same was proved in the Court during the trial as per established principle of law.
FIR No. 415/2015 Page No. 65 of 71PS: Kotwali
93. To prove the prosecution case, the testimony of the prosecution witnesses must be reliable. It is not the quantity but the quality of the testimony of the witness that helps a court in arriving at a conclusion in any case. The test in this regard is that the evidence adduced by the parties must have a ring of truth. In a criminal trial, the prosecution has to prove the case beyond reasonable doubt and it is possible only when the testimony of prosecution witnesses is cogent, trustworthy and credible. To secure a conviction of accused, the testimony of the prosecution witness must be of sterling quality.
94. In case titled as Rai Sandeep @ Deepu Vs. State (NCT of Delhi), (2012) 8 SCC 21, it is held that :
"22. In our considered opinion, the "sterling witness"
should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstances State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 66 of 71PS: Kotwali should given room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of very other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only, if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness' whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
Similarly, in case of Ramdas Vs. State of Maharashtra, (2007) SCC 170, it is held that :
"23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances with State Vs. Sunil & Ors.FIR No. 415/2015 Page No. 67 of 71
PS: Kotwali cast of shadow of doubt over her veracity. It the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not fine her evidence to be of such quality."
95. Thus, from the above said judgments, it is clear that the version of the witness should be natural one and it must corroborate the prosecution case. Such version must match with the testimony of other prosecution witnesses. It should be of such a quality that there should not be any shadow of doubt upon it.
96. The contradictions and inconsistencies appearing in the testimonies of PW- 8 Sh. Govind, PW-11 Sh. Dilip, PW-12 Sh. Ramesh Bhai and PW-13 Sh. Hari Singh have created serious doubts about the prosecution story. The versions of PW- 8 Sh. Govind, PW-11 Sh. Dilip, PW-12 Sh. Ramesh Bhai and PW-13 Sh. Hari Singh are not natural one. The different versions brought on record by the PW- 8 Sh. Govind, PW-11 Sh. Dilip, PW-12 Sh. Ramesh Bhai and PW-13 Sh. Hari Singh coupled with non-joining of any independent public persons at the time of recovery of case properties casts a shadow of doubt on their veracity. The things appears to have not happened in the manner these have been projected. The testimony of PW- 8 Sh. Govind, PW-11 Sh. Dilip, PW-12 Sh. Ramesh Bhai and PW-13 Sh. Hari Singh in the present case cannot be said to be of sterling quality to secure the conviction of the accused persons.
97. It is established principle of law that if two views are possible, the view favourable to the accused must be accepted. The State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 68 of 71PS: Kotwali benefit of doubt must always go to the accused as the prosecution has to prove the case beyond reasonable doubt.
98. The Hon'ble Apex court in Rang Bahadur Singh Vs. State of U.P. reported in AIR 2000 SC 1209 has held as follows:
"The timetested rule in that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
In yet another decision in State of U.P. Vs. Ram Veer Singh and Another reported in 2007(6) Supreme 164 the Hon'ble Apex Court has held as follows:
"The golden thread which runs through the web of administration of justice in criminal cases is that if two view are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not."FIR No. 415/2015 Page No. 69 of 71
PS: Kotwali
99. In the present case, due to the contradictions and inconsistencies in the testimonies of PW- 8 Sh. Govind, PW-11 Sh. Dilip, PW-12 Sh. Ramesh Bhai and PW-13 Sh. Hari Singh coupled with the faulty investigation conducted by the IO, serious doubts have been created on the prosecution story and two views are possible in this case and hence the benefit of the same must go to the accused persons.
100. In the light of aforesaid discussion, this court is of the considered opinion that the testimonies of PW- 8 Sh. Govind, PW- 11 Sh. Dilip, PW-12 Sh. Ramesh Bhai and PW-13 Sh. Hari Singh are not clear, cogent, credible and trustworthy and same are not corroborated by other material evidence. The investigation conducted by the IO is faulty one. The identity of accused persons has not been established beyond reasonable doubt. The recovery of case properties in the present case has not been proved beyond shadow of reasonable doubt.
101. For the reasons stated above, this court is of the considered opinion that the prosecution has failed to prove the ingredients of alleged offences against accused persons namely Sunil, Harender @ Tori, Chander Pal, Sunil Rathore, Sonu, Sanjeev, Lalit @ Babloo @ Nepali, Laxman @ Bable, Ajit, Sant Raj @ Sante, Maan Singh and Joginder @ Jugnu beyond reasonable doubt.
101. Accordingly in view of the aforesaid discussion, accused persons namely Sunil, Harender @ Tori, Chander Pal, Sunil Rathor, Sonu, Sanjeev, Lalit @ Babloo @ Nepali, Laxman @ Bable, Ajit, Sant Raj @ Sante, Maan Singh and Joginder @ State Vs. Sunil & Ors.
FIR No. 415/2015 Page No. 70 of 71PS: Kotwali Jugnu are acquitted u/s 120 B, 395 r/w 120 B, 397 r/w 120 B, 365 r/w 120 B IPC. Accused persons namely Chander Pal, Laxman @ Bable, Ajit, Lalit Kumar @ Babloo @ Nepali, Sonu, Maan Singh, Sanjeev and Sunil Rathore are hereby acquitted u/s 412 IPC. Ac cused namely Sant Raj @ Sante is also acquitted u/s 201 IPC and u/s 25 Arms Act.
102. Bail bonds of the accused persons except bail bonds filed under section 437A CrPC stand cancelled. Their sureties stands discharged. Case property, if any, be released to the rightful owners.
File be consigned to Record Room after due compliance.
Digitally signed VIRENDER by VIRENDER KUMAR KUMAR KHARTA Announced in the open court KHARTA Date: 2023.12.16 18:01:13 +0530 on 16th December, 2023 (Virender Kumar Kharta) ASJ/FTC-02(CENTRAL) TIS HAZARI COURTS:DELHI State Vs. Sunil & Ors. FIR No. 415/2015 Page No. 71 of 71 PS: Kotwali