Delhi District Court
State vs Shanu Ors on 29 November, 2023
IN THE COURT OF SH. LOKESH KUMAR SHARMA
ADDL. SESSIONS JUDGE (FTC - 02) :
SOUTH EAST DISTRICT
SAKET COURTS : NEW DELHI
CNR No: DLSE01-000133-2011
SC: 2177/16
FIR No: 79/2011
PS: New Friends Colony
U/s: 392/397/120B IPC and 25/27 Arms Act
State
Versus
1. Shanu @ Sonu
S/o Sh. Zahid Khan
R/o: Khera Gaziabad
near Modi Masjid.
2. Zafar Khan
S/o Sh. Kamal Ahmad Khan
R/o: H.No. O-18,5C, Batla House,
AI-noor Masjid, Okhla, New Delhi.
3. Sannu Khan
S/o Mohd. Raza Khan
R/o: Village Rampur, PS Kotwali,
District Rampur, U.P.
4. Saleem Khan @ Guddu
S/o Sh. Mohd. Akhtar
R/o: H. No. 516, Gali No. 3,
Block-H, Sundar Nagri,
New Delhi.
....ACCUSED PERSONS
FIR No: 79/2011 Page 1 of 51
Date of Institution : 20.09.2011
Judgment reserved on : 29.11.2023
Date of Decision : 29.11.2023
JUDGMENT
1. All the accused persons were sent for trial by SHO Police Station New Friends Colony, for having committed armed robbery under a well hatched conspiracy at the house of complainant punishable under Section 392/397/120B IPC r/w section 25 and 27 of Arms Act.
As per the case of prosecution, on 20.04.2011, after receipt of DD No. 17A, ASI Devender Singh reached the spot i.e. house no. 146 Sukhdev Vihar, where he found the articles lying scattered in all the rooms of the house and complainant Sushil Karwal s/o Late Sh. B.R Karwal was present there with his maid Neelima Tirkey, who was looking frightened and shocked and was crying. Upon enquiry, complainant told the IO that he was not present at the house at the time of incident and only his maid was present. Thereafter, IO recorded the statement of complainant in which he had stated that he was residing at the given address since 1980 and his kids were living separately. He was stated to be working in a Lab at Seelampur and on the date of incident, he had left for his duty at about 10.30AM and only his maid remained present at the house, who was stated to be working as full time maid with him for last about 10-11 months. At about 05.30 PM, when he reached back home, then he saw his FIR No: 79/2011 Page 2 of 51 maid crying in the house and articles of the house were lying scattered and then he realised that a theft had taken place in his house. However, he was not in a position to disclose the details of stolen articles which he could have given only after verifying from his house because apart from some jewellery, there were some old mobile phones also lying in the house, however, he had no suspicion on any one regarding commission of offence.
2. On the basis of this statement, IO had prepared rukka and got registered FIR u/s 380 IPC through Ct. Rajesh and Crime team was also called at the spot for inspection. On 21.04.2011, again complainant met the IO and gave a supplementary statement to him that after lot of persuasions, his maid had disclosed later on that after hearing knock on the main gate, she had opened the same, then two boys aged around 25-30 years entered inside forcibly while asking about the complainant and they were having knife and one country made pistol and they had overpowered her on the basis of weapons and asked her for the keys of the almirahs. However, due to shock and fear, the maid kept silent and on the point of knife and country made pistol, those two boys had robbed the house and left. Upon checking, two golden chains, one golden ring, two pairs of tops and about 25 wrist watches ladies and gents and 14-15 mobile phones were found missing from his house. Thereafter, the sections were changed and the matter was converted into one u/s 392/397/120B IPC.
FIR No: 79/2011 Page 3 of 513. Later on, accused persons were arrested in this case and were released on bail, investigation was completed by the IO, who had also recorded the statements of witnesses and charge-sheet was filed before the court and case was received in Sessions after its committal on 12.09.2011 for 20.09.2011.
4. On 09.11.2011 itself, the charge for offences u/s 392/397 r/w Sec. 120 B IPC was framed against all the accused persons and charges for offences u/s 25/27 Arms Act were framed against accused Shanu @ Sonu and Saleem Khan @ Guddu and charge for an offence u/s 411 IPC was also framed against all accused persons on the same day, to which they had pleaded not guilty and claimed trial.
5. In order to prove the guilt of all the accused persons beyond any reasonable doubt, the prosecution had examined 15 witnesses in all. However, for the sake of convenience, it shall be prudent to divide them into category of formal and material witnesses.
(A) At the outset, I would like to discuss the testimonies of formal witnesses:
PW2 HC Vijay Kumar No. 372 SE, P.S. New Friends Colony, New Delhi had deposed that on 20.04.2011, he was posted as Duty Officer at P.S. New Friends Colony from 5 PM to 1 AM, when at about 7:50 pm, Ct. Rajesh came to P.S. FIR No: 79/2011 Page 4 of 51 with tehrir, sent by ASI Devender Singh, on the basis of which he had recorded FIR Ex. PW2/A and also made his endorsement on the tehrir Ex. PW2/B both bearing his signatures at Point 'A'. The copy of FIR after its registration and original tehrir was given back to Ct. Rajesh by this witness for handing over the same to IO for further investigation.
This witness was not cross examined by ld. Defence Counsel, despite availing an opportunity in this regard.
PW3 is Constable Mukesh Kumar, No. 2120/South- East, PS Kalkaji who was stated to be posted as Constable at PS NFC on 22.06.2011, when he had joined the investigation with IO ASI Devender Singh, after which he along with Ct. Bobby, SI Sarvesh and IO had reached the Saket Courts, where accused Shanu and Saleem were produced from JC. Thereafter, IO had moved an application for taking PC remand of both the accused persons, which was allowed for one day and after medical examination of the aforesaid accused persons, they had reached the house of accused Shanu at Rajiv Nagar from where some wrist watches were recovered in which four were ladies wrist watches and were seized by the IO vide seizure Memo Ex. PW3/A. Thereafter, accused Saleem Khan had taken them to his house at Sundar Nagri near Nand Nagri, however, nothing was recovered from there. Later on, all of them had returned back to PS and accused persons were sent to lock up at PS Hazrat FIR No: 79/2011 Page 5 of 51 Nizamudin. IO had also recorded his statement. He had identified the watches as Ex. P2 (a) to Ex. P2 (d).
During his cross examination conducted by ld. Counsel on behalf of accused Saleem @ Gudu, Shanu and Sannu, he had stated that accused Shanu and Saleem were taken on PC remand by IO on 22.06.2011, after lunch. However, he could not remember the exact time. First of all, they were sent for their medical examination and thereafter, accused Shanu was taken to his house. Though public persons were asked to join the proceedings but they had refused and left the spot. The house of accused Shanu consisted only of ground and first floor whereas the accused was occupying the first floor but he had no knowledge about the person occupying the ground floor of the house. Perhaps wife of accused Shanu and his brother was present, when the police team had visited there. However, he could not remember if IO had asked them to join the investigation. No action was taken by the IO against the persons who had refused to join the proceedings. No parcel of recovered wrist watches was prepared by IO at that time. He could not remember the complete residential address of accused Saleem @ Guddu and was stated to have not entered inside the house of said accused and remained present outside with accused Shanu. He could not remember the exact time of reaching the house of accused Saleem @ Guddu but it was stated to be dark by that time and distance between the houses of both the accused FIR No: 79/2011 Page 6 of 51 persons was about 15 minutes drive. Formal suggestions were denied by him as wrong and incorrect.
During his cross-examination conducted on behalf of accused Zafar Ahmed Khan, he could not remember if he had told IO in his statement that when they had reached the house of accused Shanu, his wife and brother were also present there. He had never told IO that they had gone to Sundar Nagri after Rajiv Nagar. They were stated to have reached back PS at about 09.00- 09.30 PM, after which both the accused persons were sent to lockup of PS Nizamuddin by other police officials. He was also confronted with his statement Ex. PW3/DA recorded by the IO, where it was not found mentioned that all of them along with accused persons had reached PS New Friends Colony. Formal suggestions were denied by him as wrong and incorrect.
PW4 is Constable Rajesh, No. 2999, South-East PS NFC, New Delhi, who was stated to be posted as Constable on 20.04.2011 and was on duty from 08:00 AM to 08:00 PM. After receipt of DD number 17A, he along with ASI Devender Singh had reached the spot and met the complainant as well as his maid. After inspection of the spot, IO had recorded the statement of complainant and prepared rukka, which was handed over to him for registration of FIR. After registration of case, he obtained a copy of FIR and original tehrir and returned back to the spot and handed over the same to IO. No one was found present at the FIR No: 79/2011 Page 7 of 51 spot. It was also deposed by him that IO had also called the crime team and recorded his statement.
In his cross examination conducted by Ld. Counsel for accused Shanu and Salim Khan, DD No. 17A was stated to be have been received in PS at about 03:30 PM and they had reached the spot at 03:40 PM. Only complainant and his maid were found present at the spot. He was stated to have left the spot for registration of FIR at about 07.00 PM. But Crime team had not reached the spot by that time. He was stated to have gone to PS for registration of case on foot and it took him about 30 minutes to reach there whereas duty officer also took half an hour for registration of FIR and when he reached back the spot with copy of FIR and rukka, Crime team had already arrived there at about 08:00PM. No public person was found present at the spot when he had reached there, after registration of the case and he had returned back to PS at about 09.30 PM. He could not tell about the proceedings carried out by the crime team at the spot. However, it was stated to have lifted some chance prints and fingerprints from the spot. Formal suggestions were denied by him as wrong and incorrect.
In his further cross examination conducted on behalf of accused Zafar as the counsel for accused Shanu Khan had adopted the aforesaid cross-examination conducted earlier, he had deposed that IO had inquired Nilima Tirki in his presence who had stated that whatever was mentioned in the complaint by FIR No: 79/2011 Page 8 of 51 complainant was correct and during inquiry, she had also claimed that she had seen the accused although her hands and mouth were tied. IO had recorded her statement on the same day when he had recorded the statement of complainant but this witness had remained present outside the room on the instructions of IO at that time. Statement of complainant was stated to have been recorded at around 06:00 PM. He could not tell the name of any of the members of the crime team or their number who had visited the spot. Chance prints/ fingerprints were stated to have been lifted in his presence from the main gate and two wooden almirahs but he could not tell if any such chance print was developed or not. He could not even tell the number of adjoining houses nor he could remember if the complainant had given any list of stolen articles to the IO at the time of recording of his statement or not. Formal suggestions were denied by him as wrong and incorrect.
PW 5 is HC Ravinder Kumar No. 429/SE, who was stated to be posted as HC at PS New Friends Colony on 13.06.2011, when he had joined the investigation with IO and reached Ashram Chowk at about 03:00 PM. After reaching there, IO had called one Sunny, who came there and met the IO. Thereafter, IO had interrogated him and recorded his statement. Thereafter, IO had also called associate of Sunny namely Vinod at Ashram Chowk, who was also inquired by the IO. Thereafter, he along with aforesaid persons and other police staff had reached Nand Nagri near Gagan Cinema, where at the instance of FIR No: 79/2011 Page 9 of 51 Vinod and Sunny, accused Shanu @ Sonu was apprehended by the police who was later on interrogated and arrested vide arrest memo Ex. PW5/A and his personal search was conducted Vide memo Ex. PW5/B and disclosure statement Ex. PW5/C was also recorded by the IO all bearing his signatures at point A. Accused Shanu was also stated to have got recovered one wrist watch and one mobile phone but again in the same breath, it was deposed further by him that Shanu was wearing the wristwatch at that time and had got two mobile phones recovered which were taken into possession by the IO vide memo Ex. PW5/D bearing his signatures at point 'A'. Accused Shanu was also stated to have got recovered one knife under the bricks on the roof of his house and IO had prepared its sketch Ex. PW5/E. After measuring the same, IO prepared pullanda and seized the same vide memo Ex. PW5/F. After that all of them had reached Sarai Julena Chowk, where at the instance of Shanu @ Sonu, accused Zafar was apprehended and was arrested vide memo Ex. PW5/G and his personal search was conducted vide memo Ex. PW5/H and IO had also recorded his disclosure statement Ex. PW5/I all bearing his signatures at point A. One mobile phone was stated to have been recovered during his personal search and accused Zafar had also got recovered one wrist watch which was seized by the IO vide memo Ex. PW5/J. Thereafter, all of them had returned to PS and accused persons were sent to lockup of PS Hazrat Nizamuddin after getting their medical examination conducted.
FIR No: 79/2011 Page 10 of 51On next day, i.e 14.06.2011, he had again joined investigation with the IO and reached at house number 555, Gali No. 22, Tugalkabad Extension from where accused Saleem @ Guddu and accused Sannu Khan were apprehended and arrested by the IO vide arrest memos Ex. PW5/K and Ex. PW5/L, their personal searches were also conducted vide memos Ex. PW5/M and Ex PW5/N. Accused Sannu was stated to have got recovered about 195/196 old coins, whereas Salim had got recovered one loaded kata, which was kept in the open space of the staircase at the fourth floor under the bundle of cloth used for embroidery. All those coins and two wrist watches were stated to have been seized by IO vide memo Ex. PW5/O bearing his signatures at Point 'A'. The recovered katta was opened and one live cartridge was found inside it. Thereafter, IO had also prepared sketch of said desi katta and live cartridge, which was Ex. PW5/P and taken the same into possession by memo Ex. PW5/Q, all memos were stated to be bearing his signature at point 'A'. Seal after its use was stated to have been handed over to this witness after which all of them had returned back to PS including accused persons and case property was deposited in the Malkhana. Thereafter, accused persons were produced before the court and sent to judicial custody. He had correctly identified all the accused persons as well as the case property in the court, which were Ex. P1 to Ex. P4 and Ex. P2/5a- Ex P2/5c to Ex. P6.
In his cross-examination conducted on behalf of accused persons on 09.05.2014, he could not remember whether FIR No: 79/2011 Page 11 of 51 IO had made any phone call to accused Zafar from his own mobile or otherwise but he was called near the Ashram Chowk at about 03:00 PM. He was not aware if IO had made any DD entry of his departure from the PS or not. He could not remember the time when Sunny had reached the Ashram Chowk but he had remained with the police for about 15-20 minutes. It was however admitted by him that IO had called Sunny by phone at Ashram Chowk including PW Vinod as well but he could not tell the time when Vinod had reached there who was also stated to have stayed at spot for about 10-15 minutes. They were stated to have left Ashram chowk at about 03.45-04.00 PM (wrongly mentioned as 5.00 PM in the testimony) and had gone to Nand Nagri thereafter in a private taxi and reached there by 05:00 PM. IO had not taken any bill etc. from the taxi driver in his presence. Accused Shanu @ Ganja was stated to have been apprehended by the police at about 06:00 PM on the same day. However, he was not familiar or known to either of the police personnel before his apprehension and was stated to have been identified by Vinod and Sunny, who had also reached there. He was not stated to have told IO that three of the police officers had gone by a taxi and that Sunny and Vinod had reached there separately and further admitted that he had not made any statement to the IO regarding Sunny having accompanied them to Nand Nagri or that Shanu @ Ganja was apprehended on the identification of Sunny whereas Sunny and Vinod were stated to have remained with them at Nand Nagri for about half an hour. He himself had remained in Nand Nagri till 07:00 p.m. Though Shanu @ Ganja was stated to FIR No: 79/2011 Page 12 of 51 have been arrested in the presence of Sunny and Vinod but they had not signed the arrest or personal search memo of the said accused and it was volunteered by him that they had only pointed out towards the accused Shanu from a distance and had left thereafter. No confirmation as to identity of Shanu @ Ganja was stated to have been taken by the IO from Sunny and Vinod after his arrest. Disclosure statement of Shanu was stated to have been recorded near Gagan Cinema in the presence of this witness. However, he could not remember the time, when it was so recorded. Further he could not remember, if Shanu had signed his disclosure statement or not and also if he had signed the same, in which language it was signed. Though he himself had put his signatures on the disclosure statement after reading the same but he could not remember, if Shanu had mentioned any role of accused Zafar in his disclosure statement or not.
At that stage, he was shown the disclosure statement Ex. PW5/C and after going through the same, he had admitted that no role of accused Zafar was assigned in the same.
They were stated to have reached Sarai Jullena at about 08.00-08.15 PM as Zafar was stated to have met them and arrested at about 08:30 p.m. but he could not tell the basis on which he was arrested by the IO. He had also signed his arrest and personal search memos and it was admitted by him that complainant was not accompanying them at the time of arrest of Zafar Khan and he could not remember the place, from where FIR No: 79/2011 Page 13 of 51 Zafar had got recovered one wrist watch. Though he was stated to have not been taken to any other place but only to PS. Again he could not remember, if accused Zafar was wearing any wristwatch at the time when it was so recovered or not. Suggestion put to him to contrary regarding no recovery at the instance of accused Zafar was denied by him as wrong. It was also denied by him that the said wrist watch was falsely planted over this accused. It was though admitted by him that Sarai Julena Chowk was a busy place having many shops as well as bus Stand and Escorts hospital. IO was stated to have asked 4-5 public persons to join the investigation but none of them had agreed but IO had not served them any notice in writing to those who had refused to join the investigation without disclosing their names and addresses and leaving the place. One mobile phone along with SIM Card was stated to have been recovered from accused Zafar during his personal search, which was also mentioned in his personal search memo and when he was confronted with memo Ex. PW5/H, there was no mention about any SIM card in the same. Formal suggestions were denied by him as wrong and incorrect.
He had no knowledge about the person who had called accused Zafar at Sarai Jullena Chowk but denied the suggestion that accused Zafar was not arrested from the said place but was lifted from his house. It was though admitted by him that he had never told IO in his statement recorded by the later that he along with other police party had gone to FIR No: 79/2011 Page 14 of 51 Tugalkabad Extension and Rampur outstation along with accused Zafar after his arrest. He himself had not accompanied accused Zafar, when he was being taken for medical examination. He had remained in the investigation of this case for about 08.00-09.00 PM on the next day of arrest of accused Zafar. Accused Shanu Khan and Saleem were stated to have been arrested from house no. 555, gali no. 22, Tuglakabad Extension, which was a four storied building on 14.06.2011. Though IO had asked the residents of ground, 1st, 2nd and 3rd floor to join the investigation but none of them had agreed. No notice in writing was given to them by the IO nor their names and addresses were noted down by him. It was denied by him that no other accused was arrested at the instance of accused Zafar or that he had not joined investigation at any point of time whatsoever and had signed all the documents as the PS. Other formal suggestions were also denied by him as wrong and incorrect.
In his further cross examination dated 01.10.2014, conducted by Sh. Gaurav Kant, Ld. Amicus Curaie for all accused, except Zafar Ahmad Khan, he was stated to have joined the investigation for the first time in this case on 13.06.2011 and thereafter on 14.06.2011, when accused Saleem Khan was arrested at about 11:30 AM. It was admitted by him that no public person was joined at the time of arrest of the said accused nor any public person was joined by the IO at the time of arrest of other accused persons. However, in the same breath, it was stated again by the witness that Vinod and Sunny were present FIR No: 79/2011 Page 15 of 51 from public at the time of arrest of accused Shanu @ Ganja but no public person was joined by them at the time of arrest of other accused persons. Accused Salim Khan was stated to be not previously known to them but was identified at the instance of co accused Zafar. It was further admitted by him that arrest memo of accused Shanu @ Ganja was not witnessed by either Vinod or Sunny. The country made pistol allegedly recovered from the possession of accused Saleem Khan was found loaded with one live cartridge who was arrested from his house number RZ-555, Gali No. 22, Tuglakabad Extension, whereas accused Shanu @ Ganja was apprehended from Nand Nagri on 13.06.2011 at about 06:00 PM. It was also admitted by him that Sunny and Vinod were present with them at the time when they had gone to arrest accused Shanu @ Ganja and Sunny was called by the IO through phone. However, he did not know, if IO had made any entry in the DD register at the time of proceeding for arrest of said accused. After arrest of accused Shanu @ Ganja, they had remained at spot for about 1 hour and it was at about 07.00-07.30 PM when they had left the spot. The formal suggestions were denied by him as wrong as incorrect.
PW 6 is Ct. Shishukant No. 949/SE PS Amar Colony, who was stated to be posted as constable at PS NFC on 20.07.2011 when he had collected one sealed parcel from MHC(M) and had gone to FSL Rohini for depositing the same vide RC No. 512/11. After depositing the said parcel, he had received the acknowledgment and receipt and handed over the FIR No: 79/2011 Page 16 of 51 same to MHC(M) after his return to PS. Case property was stated to have remained intact and untampered as long as it was in his possession.
In his cross-examination conducted by Ld. Counsel on behalf of accused Saleem @ Guddu, Shanu and Sannu, he was stated to have collected the sealed parcel and some documents but had not counted those documents at the time of their receipt. The same was stated to have been collected by him at about 10.00-10.30 AM. He was stated to have not offered any personal search of himself to MHC(M). Even at the time of depositing the case property in FSL, he had not counted the documents. Formal suggestions were denied by him as wrong and incorrect.
PW8 is Inspector Naresh Kumar No. D/3378, Rashtrapati Bhawan, New Delhi, who was stated to be posted as Sub Inspector/ In-Charge Crime Team South District on 20.04.2011 and after receiving the information, he along with his staff had reached at H. No. 146, Sukhdev Vihar at about 10:00 PM, where they met ASI Devender and upon instructions of IO, Ct. Girdhar was stated to have taken photographs of the spot from different angles and Ct. Anand had lifted chance prints from the wooden door of the room, after which he had also prepared the report. His statement was recorded by the IO.
During his cross-examination conducted by Ld. Counsel on behalf accused persons, the chance prints were stated FIR No: 79/2011 Page 17 of 51 to have been picked up from the inner side of the room from the wooden door and articles were found scattered on the floor at the spot. However, he had not noticed if those articles were seized by the IO or not. Ct. Anand was stated to have prepared his report and submitted the same with IO in his presence. Usually the proficients were stated to have been picking the chance prints from the spot and preparing their reports. However, in cases of heinous offenses, detailed report was prepared by the in-charge of the crime team. The chance prints were to be sent by the proficient to Crime Branch Office Kamla Market, from where the report was to be collected by the IO. He was also confronted with his statement recorded by the IO Ex. PW8/DA where the name of photographer was not mentioned nor the name of fingerprint proficient was found mentioned. He could not tell the exact portion of the door from where the chance print was picked up. However, Ct. Anand had handed over his report to him at about 10:30 PM, which was given by him to the IO at the same time. He could not remember as to what was situated on the left or right side of house number 146 Sukhdev Vihar nor he could tell about the number of rooms in the said house. Formal suggestions were denied by him as wrong and incorrect.
PW9 is one Sunny, S/o Sh. Gurudin, aged 30 years R/o village Purejahan, PS Sultanganj, District Rai Bareli, who was stated to be working in a plastic factory owned by Taslim in the year 2011. Ram Milan was stated to be his elder brother, who was running a furniture shop in the name of Mini Furniture FIR No: 79/2011 Page 18 of 51 House at Munirka Market, Delhi. He also knew Vinod Kumar who was stated to be working with him. He had purchased one SIM card bearing number 8527457540 on the basis of ID proof belonging to his brother and was using the said mobile number and after the festival of Holi in the year 2011, he had gone to his native village for about 1-1½ months but before going to his village, he had handed over the SIM card to his colleague Vinod for its use and when he returned back to Delhi from his village, he had collected the said SIM card of the mobile number from Vinod. On 22.04.2011, the said mobile phone was stated to be with Vinod Kumar and used by him and when he himself started using the mobile number after returning from village, Delhi Police had called him and made enquiries from him and he had informed them that on 22.04.2011, the said mobile number was used by Vinod Kumar. After which Vinod was also called by the police and enquired.
In his cross-examination conducted by Ld. Counsel on behalf of accused persons, he was stated to be not in possession of any bill of the said mobile number and had not used the said mobile after police had called him. He had denied the suggestion that the said mobile had remained with him all the time and he had never handed over the same to Vinod Kumar at any point of time.
He was stated to have been called by one Parvinder who was stated to be a Delhi Police official at PS NFC. However, FIR No: 79/2011 Page 19 of 51 he could not remember the date when he was so called by the police. No notice was ever served upon him by the police and he could not remember exactly as to when he had used the said mobile phone for the last time. Police had enquired from him about the facts and also recorded his statement which was also signed by him. It was admitted by him that enquiries were made by police from him at PS. However, formal suggestions were denied by him as wrong and incorrect.
PW9 (to be read as PW9A) is Vinod S/o Sh.
Ramakant aged about 26 yrs r/o H. No. 512, Sewa Nagar, Ghaziabad, who was stated to be working as a labour/worker in plastic factory at Hindon Vihar, Ghaziabad owned by Taslim. He knew one Sunny who was also working in the same factory. Though he could not remember the exact date and month and year, but about 2- 2½ years before the date of his deposition, Shanu was stated to have visited the factory and he had taken the SIM of Sunny and used the same in his mobile phone and apart from that he had nothing else to say in this case.
This witness was also put leading questions by Ld. Addl. PP for State after obtaining permission of the court, during which he had admitted that on the way to his village, he had obtained the SIM of mobile number 8527457540 for use which was in the name of brother of Sunny and the said mobile phone was damaged as it had fallen in the water. It was further admitted by him that the said SIM was kept by him in his purse and on FIR No: 79/2011 Page 20 of 51 22.04.2011, Shanu @ Ganja had come to his factory with some mobile phone and wrist watches and had offered the mobile phone for sale. He had checked the mobile after inserting the SIM card in the same and since he was not having any money, that is why, he could not purchase the said phone which was taken away by Shanu @ Ganja along with SIM card inserted therein. It was also admitted by him that on 13.06.2011, he along with police had searched Shanu @ Ganja, who met them near Nand Nagri near Gagan Cinema and was arrested by the police. He had also identified the accused Shanu @ Ganja in the court.
During his cross examination conducted on behalf of accused person Shanu @ Ganja on 06.08.2014, he was unable to remember his mobile number on the date of his deposition. However, he was stated to have checked the SIM of his mobile number in the mobile phone provided by accused Shanu @ Ganja. He had also provided the documents of his phone to the police. Formal suggestions were denied by him as wrong and incorrect.
PW10 is Sh. Prashant Sharma, the then Ld. ARC-
cum-CCJ-cum-ACJ, Patiala House Courts, who was stated to be working as duty MM in Saket Court on 14.06.2011, when an application for conducting TIP of accused persons Shanu and Saleem Khan was moved before him by the IO. After producing both the accused persons in muffled faces, he had enquired from them as to whether they wanted to participate in the TIP, FIR No: 79/2011 Page 21 of 51 however, both of them had refused to participate in those proceedings stating that they were shown to the witnesses. Thereafter, he had prepared TIP proceedings Ex. PW10/A bearing his signatures at point A and had further issued certificate of Correctness of the proceedings Ex. PW10/B also bearing his signatures at point A. The application moved by IO before him was Ex. PW10/C and his endorsement allowing the copy of TIP being provided to IO is Ex. PW10/D both bearing his signature at point A. This witness was only cross examined on behalf of accused Saleem and Shanu, wherein he had deposed that accused persons were produced before him in muffled faces and as per record, he had not asked those accused persons, if they were brought in muffled faces from Tihar or mufflers were put on their faces outside the courtroom.
PW11 is Sh. Sunil Beniwal, the then Ld. A.C.M.M., Karkardooma Courts, who had placed on record the TIP proceedings of case property conducted by him which were already Ex. PW1/B and bearing his signatures at Point B and had further placed on record, the application moved by the IO for conducting the said judicial TIP as Ex. PW11/A, the certificate of correctness issued by him Ex. PW11/B and the endorsement allowing the copy of TIP proceedings to be given to IO as Ex PW11/C all bearing his signatures at point A. FIR No: 79/2011 Page 22 of 51 This witness was not cross examined by Ld. Defence Counsel, despite availing an opportunity in this regard.
PW 12 is Ct. Ramesh Solanki, Belt No. 1808, PS New Friends Colony, New Delhi who was stated to be posted at PS NFC on 13.06.2011, when he along with HC Ravinder and ASI Devender had gone to Ashram Chowk regarding investigation of this case, where IO had joined Sunny and Vinod and then, all of them reached at Nand Nagri bus stand, where, at the instance of Vinod, one Shanu @ Ganja was apprehended. After interrogation, he was arrested vide memo already Ex. PW5/A, his personal search was conducted vide memo Ex. PW5/B and two mobile phones and one Timex watch were recovered at his instance which was seized by IO vide memo Ex. PW5/D and his disclosure statement Ex. PW5/C was also recorded by the IO. The said accused was also stated to have got recovered one button activated knife from the roof of his house bearing number B131, Gali No. 3, Bank Colony, Delhi. The sketch of knife was Ex. PW5/E which was seized vide memo Ex. PW5/F. Thereafter, they had reached Sarai Jullaina Crossing with accused Shanu and at his instance, another accused Zafar was arrested vide memo Ex. PW5/G, his personal search was conducted vide memo Ex. PW5/H. One wristwatch Sharp was seized vide seizure memo Ex. PW5/J. One mobile phone of make LG with SIM number 9891221499 was also seized from the possession of said accused vide memo Ex. PW12/A bearing signatures of this witness at Point 'A'. Disclosure statement of FIR No: 79/2011 Page 23 of 51 accused Zafar was also recorded which was Ex. PW5/I. Accused Shanu was stated to have been left in PS and he along with IO and HC Ravinder and accused Zafar had gone to Rampur in the night. However, no address could be traced out, hence they returned to Delhi and reached Tugalkabad Extension, Gali No. number 22, on the basis of secret information and when they reached at house number RZ 555, Gali No. 22 on 4 th floor, they found two accused persons, Sannu Khan and Saleem Khan who were also arrested vide memos Ex. PW5/L and Ex. PW5/K. Their disclosure statements Ex. PW12/B and Ex. PW12/C were also recorded by the IO and accused Sannu was also stated to have got recovered 194 old coins, two ladies wrist watches, one Titan and another LQ bore which were all seized by the IO vide memo Ex. PW5/O. Accused Shanu was stated to be using his mobile phone in the incident to talk to other accused persons and his mobile along with SIM number 9873732998 was seized by the IO vide memo Ex. PW12/D. At the instance of accused Saleem, one country made pistol loaded with one live cartridge was also recovered whose sketch Ex PW5/P was prepared by the IO and it was taken into position vide memo Ex. PW5/Q. Thereafter, all of them returned to the police station. All the accused persons were medically examined. He had correctly identified the accused persons as well as the mobile phones recovered from Zafar Ahmad as Ex. P6 and Ex. P7 respectively.
During his cross examination conducted on 01.06.2015, by Ld. Counsel on behalf of accused Sannu Khan, he FIR No: 79/2011 Page 24 of 51 was stated to have reached Ashram chowk at about 03:45 PM, after making DD entry. Then IO had called two persons namely Sunny and Vinod from his mobile phone. They had reached Nand Nagri at about 05:00 PM in a private Indica car of silver colour which was arranged by the IO and was driven by IO himself. Accused Shanu @ Ganja was stated to be in their custody when they had reached Sarai Jullaina, who was arrested from Nand Nagri. They had reached Sarai Jullaina at about 08:00 PM, when IO had called one accused there and witness had also pointed out towards accused Zafar and from Sarai Jullaina, they had reached PS NFC at about 09:30 PM. Firstly, they had gone to Rampur UP with accused Zafar in the same Indica car along with IO and HC Ravinder. He had denied the suggestion that he had never gone to Rampur at all along with other police officials and accused. In Rampur, they were stated to have tried to search the other accused persons with the help of local police. Since nobody was apprehended hence they came back to Delhi. However, he could not remember the names of places in Rampur visited by them, though they were stated to have visited 2-3 places. Though IO had enquired from some persons at those places but he did not know as to what was revealed by those persons. They were stated to have stayed in Rampur only for about one and a half or 2 hours and had not taken any refreshment, tea etc during their presence in Rampur and left the said place at about 04:00 AM in the same vehicle. Only IO was stated to have driven the car to Rampur. Thereafter, they had reached directly at house number 555 at 4th floor, Gali No. 22, Tugalkabad Extension and while he FIR No: 79/2011 Page 25 of 51 remained with accused Zafar, ASI Devender and HC Ravinder went inside the said house at about 10:30 AM. The formal suggestions were denied by him as wrong and incorrect.
In his further cross-examination conducted on 17.09.2015 on behalf of accused Shanu @ Sonu, he was stated to have gone with Vinod and IO to Nand Nagri area near bus stop and had reached there at about 5.45-06.00 PM, but he could not remember the particular place where they had gone in Nand Nagri. Accused Shanu was stated to have been arrested on the identification of Vinod but again he could not tell the exact place of his apprehension. It was however denied by him that since he had never gone to Nand Nagri, hence he was not able to tell the exact place or that no recovery of any articles was affected in his presence at the instance of accused.
After apprehending accused Shanu, they were stated to have visited his house which was stated to be situated at about 2 km distance from Nand Nagri, and had reached there at about 06.45-07.00 PM. It was stated to be a rented accommodation of accused and though owner of the said house was not found present there, but his wife was present and perhaps IO had also recorded her statement. The house of accused was a two storied building and at first floor, there were two rooms and no other tenant was found present at that time. Suggestions put to him to the contrary were denied by him as wrong and incorrect regarding no proceedings having taken place at the house of FIR No: 79/2011 Page 26 of 51 Shanu or no recoveries having made from his house and the case property being planted upon him.
The robbery was stated to have taken place perhaps in the month of February 2011, whereas they had gone to arrest the accused on 13.06.2011. No other article was stated to have been recovered from the House of accused Shanu except the knife and they had reached back Sarai Jullaina in search of accused Zafar at about 7.45-08.00 PM. Distance between Sarai Jullaina and House of accused Shanu was stated to be about 15- 20 kms. They had travelled in the Indica car arranged by the IO, which was a private vehicle. After about 10 minutes of their reaching Sarai Jullaina, accused Zafar was stated to have reached there, after having been called by accused Shanu on phone and from his possession one mobile make LG and one wrist watch were recovered at that time. Thought he could not identify the said mobile and so far as he could have recollected, the SIM in the said mobile phone was having number 9991221498. No other proceedings were stated to have been conducted in his presence.
In his further cross examination conducted by Ld. LAC for accused Saleem, he had stated that IO had called Vinod at Ashram Chowk, when they were already present there and there was another person named Sunny with them who was also called by the IO. They had left the Ashram Chowk at about 03:45 PM for Nand Nagri. He was stated to have joined his duty at about 09:00 AM on the said date and remained in investigation of FIR No: 79/2011 Page 27 of 51 this case till 12.30 on the next day. Accused Saleem was stated to have been arrested on 14.06.2011 at about 11:00 AM, when public persons Sunny and Vinod were not present. No public person from the neighborhood was joined in the investigation at Tugalkabad from where Saleem was stated to have been arrested and one wrist was made Timex and one country made pistol loaded with one cartridge was also recovered from his house and on that day, he was stated to be on duty from 03:00 PM on 13.06.2011 to 10:00 AM on 14.06.2011. Formal suggestions were denied by him as wrong and incorrect.
PW 14 is Sh. B. R. Anand, Assistant Director, Ballistics, FSL Rohini, who had placed on record his FSL report Ex. PW13/A (wrongly typed as Ex. PW13/D) bearing his signatures at point 'X'.
In his cross examination conducted by Ld. LAC for accused Saleem, he was stated to be taking about 2-3 days for examination of Arms Act cases and he alone had examined the case property of the present case and denied the suggestion that the country made pistol was not in a working condition and no test fire was conducted from it or that cartridges were not live and he had prepared a false report at the behest of IO.
PW 15 is Ms. Meghna Yadav, the then DCP Shahdara who was stated to be posted as additional DCP Southeast on 22.10.2011, when IO ASI Devender Singh had FIR No: 79/2011 Page 28 of 51 produced documents and photocopy of case files before her. After perusal of the same, she was of the considered opinion that accused Saleem Khan was in conscious position of one country made pistol and a live cartridge. Thereafter, sanction under Section 39 Arms act was accorded by her for prosecution of accused Salim Khan @ Guddu under Arms act. Her sanction was already Ex. PW13/C bearing her signatures at point 'A'.
During her cross examination conducted by Ld. LAC, she was stated to have not seen the case property nor the accused at the time when IO had sought sanction from her and denied the suggestion that she had accorded the sanction in a mechanical manner without application of mind or that she was deposing falsely (B) Now, I would like to discuss the testimonies of the material witnesses which are as under :
PW1 Sushil Kumar Karbal, S/o Late Sh. B.R. Karbal, aged about 63 yrs, R/o 146, Sukhdev Vihar, New Delhi, had stated that on 20.04.2011, he had left his house at about 10.30 AM for his office at Seelampur, where he was running a shop of L.P.G Stove. His maid servant namely Neelima Tirkey, who used to take care of his house was left behind as she was working there for last about 8-9 months. No other family members of the complainant was present in the house at that time. When he returned to his house at about 05.45 PM, he found FIR No: 79/2011 Page 29 of 51 his house in a bad shape as all the articles were lying scattered and all 4 almirahs were in a broken condition and locks of his briefcases were also broken. The briefcase which was made of cloth was cut with the knife and his maid servant was found crying and she had informed him that the house was looted by 2 persons, then he called the police. Police came to his house and enquired him and recorded his statement Ex. PW1/A bearing his signatures at point A. He had pointed out the place of incident to the police, who had also called the dog squad and made efforts to collect the finger prints from the scene of crime. On the same day, during night, he had again enquired from his maid about the incident as to why she had opened the door as she had been instructed not to open the door at any point of time. On his repeated questions, he was told by her that one of the boys, who had come had taken his name and had stated that they had come from Seelampur to meet him and therefore, she had opened the door. Complainant knew only one person namely Zafar, who had connection with Seelampur and he also used to frequently visit his house for the last 14 years since the date of incident. So he had got suspicious about him as he knew all the details about his house. Then he told police about Zafar and his suspicion about him and he had also correctly identified the said accused present in the court. Thereafter, his maid also told him about the incident in detail that at about 03.00 PM, when she was watching the T.V.
then somebody had knocked the door and taken his name, to which she had immediately opened the door without taking care and watching from the window. She had further informed that FIR No: 79/2011 Page 30 of 51 two boys entered inside the house forcibly after pushing her and one of the boys, who was taller in height was carrying a knife and the shorter one was carrying a weapon like katta. The katta was stated to be put on her temple and she was threatened to keep quite or else, she would be eliminated. They had also asked her to hand over the keys of almirahs but she was unable to give as the keys were lying with the complainant himself. Thereafter, those boys started ransacking the house. During the entire incident, they also kept on making telephone calls and about 4-5 calls were made by them during the said period and she had also told him that on phone they had also asked as to what was to be done with the said girl. She was an illiterate girl and got scared by the incident, therefore, she had not disclosed anything initially. Subsequently, he had also given a detailed list of stolen articles to the police which comprised of 2 gold chains, one pair of gold tops, 1 gold ring weighing about 50 grams, 30-35 ladies and gents wrist watches, 13-14 mobile phones, make Nokia, China etc., 450 old antique coins including copper and silver coins. Gold articles belonging to him and mobile phones and wrist watches were gifted to him by his relatives, however, he had not given any proof of ownership of the stolen articles to the police.
In his further examination-in-chief recorded on 20.11.2012, it was stated by him that after the incident, he was informed by the police that some of the accused persons were arrested and few articles were also recovered from them. Thereafter, once again he joined the investigation with the IO and FIR No: 79/2011 Page 31 of 51 reached the Saket Courts, where, he had participated in TIP proceedings of those articles. He had also identified his signatures at Point 'A' on TIP proceedings before Ld. MM. During the TIP, he had also signed the proceedings Ex. PW1/B. The Superddari bond executed by him in respect of those articles was Ex. PW1/C, bearing his signatures at point A. He had also produced the case property comprising of 2 mobile phones Ex. P1, 9 wrist watches Ex. P2 and 194 old & antique coins Ex. P3.
During his cross-examination conducted by Ld. Counsel for accused Zafar, Police was stated to have recorded his statement twice, however, he had not specified the make or any other details of the stolen wrist watches to the IO. He was called at PS after arrest of accused Zafar, however, he had not signed on his arrest or personal search memo. He could not remember the exact date, but it was during day time before noon when he had gone to PS. All the 4 accused persons, who were present in the court were also present in the PS on that day, which according to him was 23.06.2011. He had not signed any document pertaining to arrest, personal search of any other accused persons nor he was asked by the IO to sign any such document. After the theft, the wrist watches were stated to have been seen by him for the first time during the TIP of articles, however, he had no proof of their ownership as the same were used ones. He could not remember, if he had also seen any watch make Carriage or make Aspine during their TIP. Accused Zafar and his family was stated to be known to him for about 5-6 years before the date of FIR No: 79/2011 Page 32 of 51 incident. It was admitted by him that there was a conversation between him and Zafar about construction of commercial flats in his house.
In his further cross-examination conducted by Ld. Counsel on behalf of accused Shanu & Salim, he was stated to have received the information about the incident from his maid servant on his return from the office at about 6.00 PM and thereafter, immediately he had informed the police at 100 number and narrated the incident. He had denied the suggestion that his maid had changed her statement over night and she was infact afraid on his cross questioning her. Accused Shanu and Salim were stated to have been seen by him for the first time in the PS on 23.06.2011. It was however denied by him that his maid servant had changed her statement due to his pressure as well as pressure of police and initially he was stated to have no suspicion about accused Zafar's involvement in this case. He had denied the suggestion that he was deposing falsely.
Another star witness of prosecution case, is none other than the victim namely Neelima Tirky D/o Sh. Lawrence Tirky, aged 23 yrs, R/o H.No. Village & PO Narkatia Gunj, Distt. West Champaran, Bihar, who was examined as PW7.
In her deposition before the court, she had stated that in the year 2011, she was residing at H. No. 146, Sukhdev Vihar as a maid servant, which was owned by Sushil Karwal, who was FIR No: 79/2011 Page 33 of 51 also residing there and was available almost 24 hrs except for some times, when he used to go to his office at Seelampur. On 20.04.2011, his owner was stated to have left the house after having break fast at about 11 am, and she was alone in the house watching T.V., when at about 03.00 PM, somebody had knocked the door. She had gone and opened the door when the TV was still on and had asked the person about the purpose of his visit. They were stated to be 2 persons at that time and one of them had told her that he had some work with her employer and without saying anything further, they had pushed her inside and entered in the house. The boys were between the age group of 23-25 years and she was threatened by them by showing knife and katta and she was asked to hand over them the keys of almirah, however, she had told them that she had no knowledge about the keys as same used to be kept by the owner of the house. Thereafter, they had taken her in the inner room and kept threatening her not to make any noise or else she would be killed by them. Thereafter, those boys had broken open the almirah lying in the room and again asked for the keys of the other almirah but she had told them that she had no keys with her. Thereafter, they had made a phone call to some one and told him on phone that she was not giving them the keys hence what was to be done with her. Thereafter, they had made her sit quietly in a corner and broken open the door of the other almirah and plundered the same. After committing the robbery, they went out from back door at about 5 pm. Out of the two boys who had entered, one was stated to be taller and was wearing a cap and FIR No: 79/2011 Page 34 of 51 was having a knife. The other one was shorter and was having katta and the boy who was having katta had talked to somebody on the phone. At about 06.00 PM, her employer had returned back and since she was frightened and was weeping at that time, hence he had asked her the reason for her crying, then she had told him that a theft had taken place in the house and had deliberately not disclosed that it was a robbery because she was instructed by her employer not to open the door in his absence but she had inadvertently opened the door without realizing its consequences.
Police was stated to have arrived on the same day and had made inquiries from her but she was not in a position to say anything out of fear, however, her employer kept on asking her even after departure of the police, due to which she had disclosed everything to her employer.
After about 2 months of incident i.e. on 23.06.2011, on receipt of information from PS about apprehension of intruders, she was called at the PS, where she alongwith her employer had gone and had identified accused Shanu & Salim. The witness had correctly pointed out and identified both of them in the court as well and had further stated that Shanu was having a knife and Salim was having a katta.
During her cross-examination conducted by ld. Counsel on behalf of accused Shanu & Salim, she had deposed FIR No: 79/2011 Page 35 of 51 that house where the incident had taken place was surrounded by other houses and she was working there for about one year as on the date of incident. Her employer used to reside there alone and she used to take care of the said house. She was stated to have not shouted at the time of incident as no such opportunity was provided to her as she was constantly threatened by the accused persons by showing knife and tamancha. It was stated to be a single storey property having one gate for entrance and exit but in the same breath, it was stated by her again that there were 2 doors in the property one in the front and the other one on the back side. The back side door had always remained locked, which was difficult to open and the back door was not opened on the said day as well and the entire incident was stated to have lasted for about 2 hrs. She could not inform her employer even after the thieves had left as they had taken away the mobile phone, which was lying on the table. She was stated to be having a Motorola mobile phone having Airtel SIM card and no land line phone was available in that house. It was also deposed by her that while leaving the house, the accused persons had banged the door in such a manner that she could not open the same and even her employer after his return also could not open the door and it was only with the help of carpenter that the door was opened. Her employer was stated to have returned at 5 pm, however, in the same breath, again she had stated that at 5 pm the thieves had left and her employer had returned at about 6 pm. It took about 20-25 minutes to call the carpenter/fabricator to get the door opened and only then, her employer had entered inside the house. She FIR No: 79/2011 Page 36 of 51 was stated to be under fear and hence, could not give complete details to her employer. It was admitted by her that initially she had lied to her employer, however police was stated to be called by her employer immediately after coming to know about the incident within 5 minutes of his entering the house and police was also stated to have reached there within 10 minutes thereafter. However, she could not remember the exact time of arrival of police. Further it was stated that police had reached after about half an hour when the intruders had gone and had also enquired from her but she could not reply to the police. It was though admitted by her that after great persuasion of the police, she had told them about the theft having taken place in the said house. Police had remained in the house for about half an hour, however, she could not remember or tell the time when police had left. No other person except the police or her employer had come on that day after the incident. She was stated to have informed her employer about the robbery on the following day at about 10 am, after which he had called the police again. Police had reached within 15 minutes thereafter and she had narrated everything to the police in the presence of her employer. On the day of incident itself, some persons were stated to have come to the house to take the chance print/finger prints from the almirah and doors, however, police had not obtained her finger prints on the said day or on any other day thereafter. A suggestion put to her was denied by her that the intruders had their faces covered or that they were wearing gloves or that nobody had entered in FIR No: 79/2011 Page 37 of 51 the house on that day or that no such incident as stated had ever taken place.
She had not signed any papers in the PS on her visit on 23.6.11. She had gone there at about 6-7 am and remained there for about 40 minutes. The information regarding apprehension of accused persons was received by her employer on his mobile phone about 15 minutes before they had proceeded for PS in a rikshaw and it had taken them about 10 minutes from the house to reach PS. However, she had no knowledge about the exact conversation which had taken place between her employer and the police officer, who had informed him on his phone about apprehension of the accused persons. She was not shown any articles in the PS and was called only to identify the accused persons. Similarly, her employer had also not taken any articles along with him to the PS. She was stated to have never visited the PS again in connection with this case after 23.6.11 nor she was contacted by the IO after the said date. The almirahs and briefcase were stated to have been broken by the accused persons with the help of a hammer and other instruments, which were lying in the kitchen, however this fact was not told by her to the police. Police had picked the hammer and other instruments in her presence, however, she did not know if they had seized the same or not. She had denied the suggestion that she had not told the police that the almirahs and the briefcase having been broken with the help of hammer and other instruments lying in the kitchen as no such incident had taken place. She could not tell as FIR No: 79/2011 Page 38 of 51 to which articles were taken away by the accused persons as she had seen them taking away articles only from one almirah and all that she could tell was only a ring, chain, watches, umbrella, old coins etc. were taken away by them. Prior to the incident, she had no knowledge about the presence of those articles in the almirah but since she was made to sit at the place which was just opposite to the almirah itself, hence she could see those articles. Lastly it was denied by her that she herself had taken away all those articles and had falsely implicated the accused persons to save herself or that no such incident had ever taken place or that she was deposing falsely.
This witness was not cross examined on behalf of other accused persons despite availing an opportunity in this regard.
PW 13 ASI Devender Singh, no. 2663/SE, PS New Friends Colony, New Delhi, who is the IO of this case had also deposed on the similar lines as was the deposition of PW12 and described the manner of investigation carried out by him in this case and also placed on record rukka Ex PW13/A, site plan Ex. PW13/B. The seizure memos of the recovered articles as well as arrest, personal search and disclosure statement of accused persons vide memos already available on record. He had also placed on record the sanction u/s 39 Arms Act as Ex. PW13/C and FSL result as Ex. PW13/D all bearing his signatures at Point 'A'. He had also correctly identified the case property i.e. country FIR No: 79/2011 Page 39 of 51 made pistol and one test fired cartridge as well as the knife and also the mobile phones recovered from accused Zafar and Shaanu Khan.
During his cross-examination conducted on behalf of accused Shannu Khan on 19.09.2015, he had stated that he had visited Rampur in respect of investigation of this case on 13.06.2011 in an Indica car of silver colour, however, he could not remember its registration number and name of the driver of the said car, which was hired from a taxi stand. They were stated to have left for Rampur at about 4/5 am in the early morning and had also searched accused persons there by visiting their houses but they were not found present at their houses. No other place was visited by them. The suggestion put to him was denied by him as wrong that he had never visited Rampur and that is why no departure and arrival entry was made by him at the local police station.
It was also deposed by him that they had information about accused persons coming to their addresses at Delhi. He had denied the suggestion that he had illegally detained accused Shannu Khan from Rampur on 14.06.2011 in the morning hours and had falsely shown him having arrested from Delhi from the house no. 555, Street no. 22, Tughalkabad Extn. or that Shannu Khan was present in Rampur on 14.06.2015 and even prior to that and was falsely arrested and involved in this case and the recovery was planted upon him. It was also denied by him that FIR No: 79/2011 Page 40 of 51 Shannu had never resided at the address of Tugalkabad Extn. However, he had not collected any rent agreement, nor recorded any statement of the owner of the house or of any neighbour to establish the fact that accused Shannu had resided at the said address on the relevant date. It was also denied by him that he had planted wrist watches and coins on accused Shannu Khan after procuring the same from the market or that he was deposing falsely.
In his cross-examination conducted by Ld. LAC for accused Salim @ Guddu, he was stated to have recorded the statement of one Sunny on 13.06.2011 and it was admitted by him that prior to said date, he had never recorded his statement. The SIM card used by accused Salim was not found in his name rather it was volunteered by him that the same was in the name of his brother Milan but he had not examined Milan in this case. It was denied by him that he had planted katta and cartridge to falsely implicate the accused in the case. The SIM card of Sunny was also stated to have been used by Vinod. Other formal suggestion were denied by him as wrong and incorrect.
In his cross-examination conducted by Ld. Counsel for accused Shanu @ Sonu and accused Zafar, he was stated to have been assigned the call which was registered in PS on the date of incident after reaching the spot, where he had also recorded the statement of complainant, who was present there with his maid. However, no public person was present at the spot FIR No: 79/2011 Page 41 of 51 and maid had not informed him anything on the said date as she was only crying. It was admitted by him that when the complainant had given his statement, he had only deposed about theft having taken place in his house. The maid was stated to have been examined by him on the next day. He had also interrogated her to ascertain her involvement in the said incident. He was stated to have remained at the house of complainant for two hours when he had examined him and his maid on the next day. The interrogations were carried out by him separately. It was though denied by him that he had pressurized the maid to make a statement as per his choice.
He had obtained CDR details of the mobile phone which was stolen from the house of complainant, however, he had not examined the persons in whose names the SIM was allotted but had only examined the person who was using the said SIM. It was further denied by him that he had obtained CDR of a different mobile other than the person whom he had examined as a witness regarding user of said SIM. He was stated to have acquired knowledge about accused Shanu @ Sonu from Vinod with whom he used to work in the factory and accused Shanu was stated to have been apprehended from a place near Gagan Cinema, Nand Nagri and intimation of his arrest was given to his wife, who had met him during investigation at her house only. Arrest memo of accused Shanu was stated to have been prepared at 6.00 pm after his apprehension at 5.00 pm and his wife was informed at about 6.30 pm but no signatures of his wife were FIR No: 79/2011 Page 42 of 51 obtained on the arrest memo. The place from where accused Shanu was stated to be apprehended was a crowded place and though he had made efforts to join public persons in the investigation but no one had agreed. It was stated to be at about 3.30 pm, when he had come to know from Vinod about possible availability of accused Shanu near Gagan Cinema. However, he had not informed the local police regarding apprehension of accused nor beat Constable of the area was joined in the investigation as he was stated to be not available. Accused Shanu was stated to have led the police team to his house at about 6.30 pm, from where he had got recovered one knife kept under the cemented sheet of the roof joining on the wall. Accused was stated to be a tenant of one Rampal Bindiwala but the room adjoining his room was closed and IO had not made any enquiries from the house owner or any of his family members, though he had enquired in the neighbourhood and came to know that accused had recently shifted there. However, he was not informed the exact time, since when the accused was residing in the said house. None of those neighbours were cited as witnesses in the case from whom the enquiries were made by him as they had refused to become the witnesses. He had not given any written notice to the house owner or to the neighbours to join the investigation. A suggestion was denied by him as wrong that he had never visited the house of accused as deposed or no recovery was affected from there at the instance of accused. During his PC remand, accused was stated to have got recovered four more lady FIR No: 79/2011 Page 43 of 51 wrist watches, however, he could not tell their description but he could have identified those watches, if shown to him.
It was further denied by him that since he did not recollect description of watches hence, he would not have been able to identify them as well. He had never shown the knife recovered from accused to the maid to ascertain, if the said knife was the same knife shown to her or not. 194 old coins were stated to have been recovered from accused Shannu Khan, however he could not tell their details or denomination but could have identified the same. Again, he had denied the suggestion that he would not be able to identify those coins, if the same were produced by their superdar or that since he was not able to give their description, hence, he was not able to identify them as well. It was also denied by him that such coins were easily available in the market or the same were planted by him after procuring from the market or that wrist watches were also procured by him and planted upon the accused persons.
It was though admitted by him that in his initial complaint given to police, the complainant had not mentioned anything regarding theft of coins and watches. However, it was volunteered by him that description about watches and coins was made by complainant in his supplementary statement which was recorded on 21.04.2011.
FIR No: 79/2011 Page 44 of 51Accused Zafar was stated to have been arrested from Sarai Jullaina Chowk at about 8.30 pm, when he had come there at about 8.00 PM and his mother was informed about his arrest, however, no public person was joined during the arrest proceedings of accused Zafar as they had refused to join the investigation. From the possession of accused Zafar, one wrist watch which he was wearing was recovered and in his disclosure it was mentioned by accused Zafar that he was wearing a stolen watch. However, IO had no proof of ownership of the watch with him, hence, he could not tell with surety, if the watch recovered from accused Zafar was a robbed one or not. No public person was stated to have been joined by him during the seizure of the watch nor he had given his search to any public person before conducting the search of accused. The formal suggestions were denied by him as wrong and incorrect.
6. Thereafter prosecution evidence was closed.
7. After closure of prosecution evidence, statements of all accused persons were recorded under Section 313 CrPC, wherein, entire incriminating circumstances and evidence as appearing against them on record were put to them and except the facts which were either specifically admitted to be correct by them or were purely and essentially a matter of record, accused persons had admitted most of them being the matter of record and denied the rest as wrong and incorrect. They had also claimed their innocence and false implication in this case.
FIR No: 79/2011 Page 45 of 518. I have heard the arguments advanced by Dr. Prayag Dutt Pandey, ld. Addl. PP representing the State as well as Sh. Javed Hussain, Ld. LAC for accused Shanu, Salim, Sannu Khan and Sh. Dilshad Ali, Ld. Counsel, representing accused Zafar in this case and have meticulously and scrupulously gone through the entire material on record.
It has been stated and argued by ld. Addl. PP appearing for State that in view of the testimonies of PW1 as well as PW7, who had not only correctly identified the accused persons but had also explained their role in detail, the prosecution has been able to bring home the guilt of accused persons beyond any reasonable doubt.
However, in contrast to the submission of ld. Addl. PP for State, ld. Defence Counsels had pointed out towards the inter-se, inconsistencies and contradictions appearing in the testimonies of these two star witnesses of the prosecution. Undoubtedly PW1, who happened to be the complainant in this case was not present at the time of incident and whatever was told by him to the police was based upon hearsay as was told by PW7 to him. However, if the examination of this witness is examined carefully, then there remains no doubt in my mind to hold that this person had not been able to maintain consistency through out the case as in his written complaint Ex PW1/A, he was stated to be working in a Lab at Seelampur, whereas during FIR No: 79/2011 Page 46 of 51 his examination-in-chief, he was stated to be running a shop of LPG Stoves. Furthermore, in his complaint Ex. PW1/A, he had mentioned about returning to his home at 05.30 PM, whereas during his deposition before the court the said time was stated to be 05.45 PM. Not only this but also, there is no mention either in his complaint or in his examination-in-chief by PW1 that door of the house could not be opened on his return for which some carpenter/technician was to be called for getting it opened.
Not only this, but also, during his examination-in- chief accused Zafar Khan was stated to be known to him for the last 14 years, however, during his cross-examination, the same person was stated to be known to him only for about last 5-6 years.
Further as per this witness, he had visited the PS on 23.06.2011 in the forenoon. However, as per PW7, she had visited the PS with PW1 at about 06.00-07.00 AM on 23.06.2011.
Similarly, as per PW7, the thieves had entered in the house at 03.00 PM and had left at about 05.00 PM from the back door of the building, however, during her cross-examination conducted by Ld. Counsels for accused, earlier she had deposed about building having one gate only, however, later on she had mentioned about two gates but as per her version, the back door always used to remain locked and was not even opened on the FIR No: 79/2011 Page 47 of 51 date of incident as well. As per this witness, complainant was stated to have reached back home at about 06.00 PM. She had also stated about having identified the accused persons in the Police Station and it shall be further pertinent to mention here that no Judicial TIP of accused persons was got conducted as they were already shown to the witnesses in the Police Station itself.
As per her version, complainant had made a call to police within five minutes of his reaching at the house and within ten minutes the police had also arrived there. However, arrival of police at the spot was further stated to be after about half an hour of the accused persons fleeing from the spot.
If this version has to be believed then it shows that police had reached the spot at about 05.30 PM. However, admittedly by that time, even complainant had not reached at the spot, hence what to talk of arrival of police there.
Furthermore, as per PW7, she had disclosed about robbery to PW1 on the next day at around 10.00 AM, whereas PW1, during his examination had stated that she had disclosed the incident to him on the same night itself after much persuasions. It was also stated by PW7 that door of the main entrance was got opened with the help of carpenter as accused persons had banged it in such a manner that it could not be opened by her or by the complainant.
FIR No: 79/2011 Page 48 of 51This version is again contrary to her previous version wherein she had stated about accused persons having fled from the back door and not from the front door. Not only this, but also, PW7 had deposed about accused persons having broken open the locks of the almirahs with the hammer and other instruments lying in the house itself, which essentially meant that they had not brought any instruments for house breaking with them while allegedly entering in her house. Further more, these facts related to the door having opened with the aid of Carpenter or the almirahs having broken open with the hammers and other instruments by the accused persons, lying in the house itself do not find mention either in her statement recorded under section 161 CrPC nor during her examination-in-chief which essentially goes to show that she had improvised and exaggerated her version during her cross-examination.
Furthermore, it has also not been reasonably explained by the prosecution as to why PW7 was prompted to open the door for strangers, especially when she had specific directions from the complainant not to open the door for anyone whosoever at any cost and in any condition whatsoever.
It is also interesting to note here that in his cross- examination, PW12 had stated that IO/ASI Devender had driven the Indica Car from Delhi to Rampur and it was driven back by IO and HC Ravinder in turns from Rampur to Delhi. However, PW13, ASI Devender, during his cross-examination had stated FIR No: 79/2011 Page 49 of 51 that he had no knowledge about driver of Indica, which meant that he had not driven it at all. This contradiction put a serious question mark on the Rampur Trip of police officials itself.
Subjecting the accused persons to their identification by the police in the Police Station itself, without taking them for judicial TIP also raises serious doubt and suspicion about the genuineness of the prosecution story. Not only this, but also, no public witness was joined during the recovery proceedings nor any CCTV footages were collected nor even the CDRs of accused persons were collected by the IO to ensure their presence at the spot at the given point of time which fact also raises a serious suspicious about their presence and involvement in the incident. The matter was not even investigated from the point of view of involvement of PW7 in the incident along with some of her accomplices, otherwise I do not find any occasion for her to have opened the door of the house for strangers.
So far as recovery of weapons is concerned, no finger prints were lifted and matched with those of the accused persons from whom they were allegedly recovered to link them or connect with the possession of those weapons. Hence, the possibility of plating of the weapons upon accused persons cannot be ruled out.
Similarly in order to attract a charge for retaining stolen property, it was essentially required for the prosecution to FIR No: 79/2011 Page 50 of 51 have proved that the accused persons were retaining the stolen property either with the knowledge or having reasons to believe it to be such property. However, none of the prosecution witnesses had deposed even a single line to this effect.
9. Hence, in view of my aforesaid findings and observations, the entire story put forth by the prosecution itself has become suspicious and doubtful and does not inspire any confidence.
10. Therefore, all the accused persons are entitled for an honorable acquittal. Accordingly, as a net result thereof, all the accused persons are hereby acquitted from the offence(s) charged against them.
11. Their bail bonds and surety bonds are cancelled and sureties are discharged. The bonds furnished by them under Section 437A CrPC shall remain in force for a period of six months from the date of their acquittal.
12. Case file be consigned to record room.
Digitally signed ANNOUNCED IN THE OPEN COURT LOKESH by LOKESH KUMAR DATED: 29.11.2023 KUMAR SHARMA SHARMA Date: 2023.11.29 15:45:28 +0530 (LOKESH KUMAR SHARMA) ADDL. SESSIONS JUDGE (FTC- 02) SOUTH EAST DISTRICT SAKET COURTS : NEW DELHI FIR No: 79/2011 Page 51 of 51