Delhi District Court
State vs Joginder @ Joga on 11 November, 2024
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. 28519/2016)
FIR No. 171/2010
Police Station Paharganj
Charge-sheet filed under Sections 395/120B IPC.
Charges framed against accused Sec. 120B IPC & 395 IPC
persons namely Joginder @ Joga. read with 120B IPC, 397
read with 395 & 120B IPC
& Sec. 412 IPC.
Charges framed against accused Sec. 120B IPC & 395 IPC
persons namely Kapil @ Toni. read with 120B IPC &
Sec. 412 IPC.
Charges framed against accused 120B IPC & 395 IPC read
persons namely Ashok, Kishan @ with 120B IPC.
Jagga, Mohnish @ Jonty,
Dharmender & Deepak Sonkar.
State Versus 1. Joginder @ Joga,
S/o Sh. Hardayal Singh,
R/o RZ-B/1560, Gali No. 6,
Main Sagarpur, New Delhi.
2. Ashok,
S/o Sh. Prem Chand,
R/o Village Lodhsar,
PS Sujangharh, Distt. Churu,
Rajasthan.
3. Kapil @ Toni,
S/o Sh. Natthu Ram,
R/o 221/200, S-Block, Gali No. 7,
Vishnu Garden, New Delhi.
FIR No. 171/2010, PS: Paharganj,
State Vs. Joginder @ Joga & Ors. Page No. 1 of 51
4. Kishan @ Jagga,
S/o Sh. Mohan Lal,
R/o H. No. C-336, Madipur,
Delhi.
5. Mohnish @ Jonty,
S/o Sh. Desh Bandhu Rawat,
R/o RZ-673, Gali No. 18A,
Sadh Nagar, Palam, New Delhi.
6. Dharmender,
S/o Sh. Baccha Lal,
R/o C-50, Madipur,
New Delhi.
7. Deepak Sonkar,
S/o Sh. Bhola Ram,
R/o C-337, JJ Colony,
Madipur, New Delhi.
...Accused Persons.
Date of Institution of case 16.11.2010
Date of Arguments 11.11.2024
Judgment reserved on 11.11.2024
Judgment pronounced on 11.11.2024
Decision Acquitted
JUDGMENT
1. Accused persons namely Joginder @ Joga, Ashok, Kapil @ Toni, Kishan @ Jagga, Mohnish @ Jonty, Dharmender and Deepak Sonkar are facing trial for the offences punishable under FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 2 of 51 Sec. 120B IPC & Sec. 395 IPC read with Sec. 120B IPC. Additionally, accused Joginder @ Joga is also facing trial for the offences punishable under Sec. 397 IPC read with Sec. 395 IPC & 120 IPC and Sec. 412 IPC. Additionally, accused Kapil @ Toni is also facing trial for the offence punishable under Sec. 412 IPC.
2. During trial, accused Sikandar @ Sunny Dogra expired and proceedings against him stood abated vide order dated 05.01.2022.
3. The story of the prosecution is that on or before 02.07.2010 all the accused persons namely Joginder @ Joga, Sikander @ Sunny Dogra (since deceased), Ashok, Kapil @ Toni, Kishan @ Jagga, Mohnish @ Jonty, Dharmender and Deepak Sonkar entered into criminal conspiracy to commit the offence of dacoity and shared the information with each other. Further on 02.07.2010 at about 02:30 pm, all the accused persons in furtherance of their common intention reached at Basant Lane, Central Railway Hospital, Paharganj, New Delhi and committed dacoity of Rs. 27,00,000/- from complainant Sh. Bhudev Singh. Further on the aforesaid date and time, accused Sikandar @ Sunny Dogra (since deceased) and Joginder @ Joga used pistols at the time of committing dacoity. Further on 14.07.2010 accused Joginder @ Joga got effected recovery of cash in sum of Rs. 1,80,000/- from flat no. 204, Plot No. 321, Gali No. 6A, Mahipalpur Extension which he retained the same knowingly that the same had been transferred by the commission of dacoity. Further on 17.07.2010 accused Sikander @ Sunny Dogra (since FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 3 of 51 deceased) was found in possession of three gold chains with lockets and two gold rings which he purchased from the booty of dacoity committed by him and on 31.08.2010 he also got recovered house hold articles i.e. TV, sofa set, AC & VCD from his house which he had purchased from the booty of dacoity committed by him. Further on 15.07.2010 accused Kapil @ Tony also got recovered cash in sum of Rs. 5,000/- from his house which he retained the same knowingly that the same had been transferred by the commission of dacoity.
4. The brief facts which are borne out from the record of the case are that on 02.07.2010 on receiving DD No. 43B regarding snatching of bag containing a sum of Rs. 27 lakh, PW-17 SI Harpal Madan alongwith PW-1 Ct. Azad went to Central Hospital, Basant Lane where PW-2/complainant Sh. Bhudev Singh and his companion Sh. Ghambir @ Chotu met them. Thereafter PW-17 SI Harpal Madan recorded his statement, Ex. PW-2/A and on the basis of the same, he got recorded the present FIR under Sec. 356/379/34 IPC through PW-1 Ct. Azad Ali at PS Paharganj. Thereafter PW-17 SI Harpal Madan prepared the site plan at the instance of complainant, recorded statement of Gambhir @ Chotu and tried to trace the accused persons but no clue was found. After registration of FIR, further investigation of present case was entrusted to PW-25/SI Raman Kumar Singh. During investigation, it was revealed that accused Joginder @ Joga along with his gang members were nabbed for conducting robberies and dacoities in Delhi by Special Cell, Northern Range FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 4 of 51 and motorcycle used in commission of present offence was recovered at instance of accused Joginder @ Joga and he disclosed that he along with his associates namely Sikandar @ Sunny Dogra, Mohnish @ Jonty, Ashok, Dharmender and Deepak had looted the complainant of the present case. It has also been revealed that case properties of present case i.e. booty amount and pistol with cartridge were also got recovered at instance of accused persons.
5. On 23.07.2010, on receiving information regarding arrest and production of accused persons namely Sikandar @ Sunny Dogra, and Mohnish in case FIR No. 75/2010, PS Karol Bagh, IO/SI Raman Kumar Singh along with SI Ajay Dalal reached Tis Hazari Courts and interrogated both the accused persons with permission of court, recorded their disclosure statements and formally arrested them in the present case. Thereafter on 24.07.2010 again on receiving information regarding production of accused persons namely Joginder @ Joga, Ashok Kumar, Kapil @ Toni, Krishan @ Jagga and Dharmender, in case FIR No. 75/2010, PS Karol Bagh, IO/SI Raman again reached Tis Hazari Courts and interrogated them with permission of court and formally arrested them in the present case. Thereafter on 26.07.2010, IO got conducted TIP of accused persons namely Joginder @ Joga, Mohnish Rawat @ Jonty and Sikandar @ Sunny Dogra but complainant could not identify accused Mohnish Rawat @ Jonty and Sikandar @ Sunny Dogra whereas accused Joginder @ Joga has refused to participate in TIP FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 5 of 51 proceedings. On 12.08.2010, IO/SI Raman Kumar Singh formally arrested accused Deepak Sonkar, on his surrendered before the court, in the present case and recorded his disclosure statement. Thereafter IO moved application for PC remand of accused persons and recorded their disclosure statements. During investigation, IO visited the office of Special Cell and he collected the case properties of the present case along with one key of rented accommodation of Sikandar @ Sunny Dogra. During investigation, IO also collected CD of intercepted calls of accused Joginder @ Joga with other accused persons from SI Satender Vashisth of Special Cell. He also collected intercepted calls of accused persons with respect to the present incident.
6. On 31.08.2010, IO along with Ct. Venu K. P. went to the house no. K-321, Gali No. 4, Mahipalpur, which was rented accommodation of accused Sikandar @ Sunny Dogra and seized one Voltas AC with Skybird stablizer, one sofa set black colour, one TV make Sansui with remote and one VCD make Philips with remote and one amplifier. During investigation, IO got transcripted the intercepted calls and its CDs were sent to FSL for authenticity of the audio. During investigation, IO collected CDRs/CAF of mobile phones used by the accused persons, recorded the statement of witnesses and on completion of investigation, charge-sheet was filed by the IO before the Court through the SHO.
7. Vide order dated 3 0 . 1 0 . 2 0 1 0 copy of the charge-sheet under Section 207 Cr.P.C was supplied to the accused persons FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 6 of 51 and vide order dated 12.11.2010 the case was committed to the Court of Sessions under Sec. 209 Cr.P.C.
8. Vide order dated 06.12.2010 the Ld. Predecessor was pleased to frame charges under Sec. 120B & Sec. 395 read with Sec. 120B IPC against all the accused persons namely Joginder @ Joga, Ashok, Kapil @ Toni, Kishan @ Jagga, Mohnish @ Jonty, Sikandar @ Sunny Dogra (since deceased), Dharmender and Deepak Sonkar. Additional charge under Sec. 395 IPC read with Sec. 397 IPC & Sec. 120B against accused Sikandar @ Sunny Dogra and Joginder @ Joga. Additional charge under Sec. 412 IPC was framed against accused Joginder @ Joga, Kapil @ Toni and Sikandar @ Sunny Dogra to which, accused persons pleaded not guilty and claimed trial.
9. To prove its case, prosecution has examined 26 witnesses. The testimonies of presecution witnesses along with its nature has been discussed briefly in the following paragraphs.
10. PW-1 Ct. Azaz Ali, deposed that on 02.07.2010 on receipt of DD No. 43B, he along with SI Harpal went to spot of incident i.e. Basant Lane, Central Railway Hospital, New Delhi where complainant Sh. Bhudev Singh met them. He further deposed that SI Harpal recorded his statement, made endorsement on it, prepared rukka and handed over the same to him for getting the FIR registered. He further deposed that he got the FIR registered and handed over the copy of FIR to SI Harpal Singh. On putting a leading question by Ld. Addl. PP for the State, he admitted that FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 7 of 51 Gambhir @ Chottu who was friend of complainant also met them at the spot. This witness was not cross-examined on behalf of the accused persons despite opportunity given to them.
11. PW-2 Sh. Bhudev Singh, is the complainant as well as the victim in the present case. He deposed that he was working as field boy with Sh. Trilochan Singh who was running a business of money exchange at 1108, Main Bazar, Paharganj. He further deposed that on 02.07.2010 during afternoon hours, he along with his co-worker Gambhir @ Chottu went to HDFC Bank, N-47, Connaught Place for depositing foreign currency on asking of his employer Sh. Trilochan Singh. He further deposed that they were returning to their office with cash in sum of Rs. 27 lakh on scooter and at about 03:30 pm, when they reached a little ahead of the gate of Central Railway Hospital, a motorcycle came from their backside. He further deposed that three boys were riding that motorcycle and their faces were covered with helmets and they snatched the bag containing Rs. 27 lakh and ran away. He also deposed that both of them raised noise and informed their employer who telephoned police and police came at the spot and recorded his statement, Ex. PW-2/A and prepared site plan at his instance. He further deposed that he along with police officials went to the bank and showed them three cheques of Rs. 9 lakh each and thereafter he was taken to PS Kamla Market. He also deposed that police showed photos to him and asked him to identify, if any of them was involved but he did not identify any photo. He further deposed that he could not identify FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 8 of 51 the three persons who came on motorcycle. This witness was cross-examined on behalf of Ld. Addl. PP for the State in which he deposed that he told the police that I could identify one of the three persons who came on motorcycle. He denied the suggestion that he identified accused Mohnish Rawat, Joginder @ Joga, Sikandar @ Sunny Dogra in PS Paharganj. He also deposed that he told the police that they were like the persons who showed pistol to him and snatched bag after breaking the dickey of motorcycle. He also could not identify accused persons namely Mohnish Rawat, Joginder @ Joga, Sikandar @ Sunny Dogra in the court and deposed that he could not say if he saw the same persons in police station. He denied the suggestion that he deliberately did not identify the accused persons due to fear. He also deposed that he went to jail to identify accused Sunny Dogra and Mohnish Rawat but could not identify them. He denied the suggestion that he gave supplementary statement, Ex. PW-2/B to the police that he did not identify them due to fear. He also denied the suggestion that vide same supplementary statement, he identified accused Joginder @ Joga after he refused to join TIP. This witness was confronted with his statements recorded under Sec. 161 Cr.PC. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
12. PW-3 ASI M. Bakhshila was the MHC(M) of PS Special Cell. He proved entries in register no. 21, Ex. PW-3/A to Ex. PW-3/C regarding taking the pullandas of case properties i.e. cash amount of Rs. 1,85,000/-, jewellery and personal search FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 9 of 51 effect of accused Joginder @ Joga from Malkhana by IO/SI Raman Kumar in the present case. This witness was not cross- examined on behalf of accused persons despite opportunity given to them.
13. PW-4 Sh. Sunil Kumar, deposed that he was running a business of foreign exchange in the name and style of GSA Forex Travells Pvt. Ltd. and accused Dharmender worked with him for about 6-7 years and left the job about one year prior to the incident. He further deposed that on 02.07.2010 his two employees namely Naveen Sachdeva and Amit were taking cash for depositing the same in ICICI Bank, Karol Bagh then two boys came on motorcycle and tried to snatch the cash from them and they also fired. He further deposed that his employee Naveen Sachdeva got hurt for which an FIR was registered at PS Karol Bagh and he gave copy of FIR to the IO. He further deposed that Dharmender used to give the information about the carrying of cash by the employee and he used to have the complete information about his money transaction and he also used to bring cash from the bank. In his cross-examination, he deposed that during the period of employment with him, he received complaints against Dharmender, 2-3 times but he did not report the same to police. He admitted that he had removed him from service as he started taking excess leave. He also deposed that he removed him due to the fact that he was caught committing theft.
14. PW-5 Sh. Pabhjot Singh, deposed that he was running a business of foreign exchange under the name and style of Singh FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 10 of 51 Forex Pvt. Ltd. at 1108, Main Bazar, Paharganj, Delhi. He further deposed that on 02.07.2010 his executive namely Bhudev Singh and one Chhotu were bringing cash from HDFC Bank, N-47, Connought Place, Delhi. He further deposed that he received a telephonic call from Bhudev that when he was on the way, their scootor was stopped and hit by a bike and the revolver was shown to them and they were asked to hand over the money and that the riders of the motorcycle broke the dikki and took out the bag containing cash. He further deposed that he called PCR and police came there and recorded his statement. He also deposed that he had no suspicion on his employees. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
15. PW-6 Sh. Punit Kumar, is owner of rented house of Sikandar @ Sunny Dogra. He deposed that in the month of June/July, 2010, he rented out Flat No. 204, Second Floor, K-321, Gali No. 6A, Mahipalpur Extension, New Delhi to one person and he paid him Rs. 8,000/- as advance rent for one month. He further deposed that he shifted in the first week of July, 2010 and after 4-5 days, one sofa set, one AC, one TV, VCD were also brought by that person in the flat. He further deposed that on 3/4, July, 2010 police came to his house and they opened the abovesaid flat and all newely purchased items were taken away by the police. He proved seizure memo of abovesaid articles as Ex. PW-6/A. This witness was cross-examined on behalf of Ld. Addl. PP for the State in which he deposed that the FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 11 of 51 name of his tenant was Sunny. He also deposed that no verification was got conducted when the flat was rented out to Sunny. He also deposed that it was his brother Jai Kumar who negotiated the rent and other conditions with tenant Sunny. He did not identify accused Sikander @ Sunny Dogra during his examination in the court. In his cross-examination, he deposed that none of the accused persons were accompanied the police when they came to seize the abovesaid articles. He denied the suggestion that no such articles were seized from his abovesaid premises.
16. PW-7 HC Rakesh Singh, was the Duty Officer in the present case who proved the copy of FIR No. 171/2010, Ex. PW-7/A and rukka Ex. PW-7/B. This witness was not cross- examined on behalf of accused persons despite opportunity given to them.
17. PW-8 ASI Rakesh Kumar, deposed that on 14.07.2010 he alongwith SI Satender Vashisth, IO of case FIR No. 75/2010, PS Karol Bagh and other staff members joined the investigation in the present case and on that day, accused Joginder @ Joga was taken on Police Custody remand from court. He further deposed that during investigation, accused Joginder @ Joga was taken to Flat No. 204, Plot No. 321, Gali No. 6, Mahipal Pur Extension, which belongs to accused Sikander @ Sunny Dogra and he got recovered cash amount of Rs. 2,00,000/-, one pistol and live cartridges. He further deposed that accused Joginder @ Joga disclosed that out of the said cash, a sum of Rs. 1,80,000/- was FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 12 of 51 booty of the robbery committed in the area of Paharganj and pistol was the same by which he along with his companions committed robbery. He proved the seizure memo of cash amount and sketch of pistol as Mark PW-8/1 & Mark PW-8/2. He further deposed that supplementary statement of accused Joginder @ Joga was also recorded pursuant to which, they went to the house of accused Sikander @ Sunny Dogra (since deceased) and recovery was effected at instance of accused Joginder @ Joga. In his cross-examination, he denied the suggestion that nothing was recovered from the house of accused Sikandar (since deceased) at the instance of accused Joginder @ Joga. He also denied the suggestion that accused did not disclose that cash of Rs. 1,80,000/- was booty of robbery committed in the Paharganj. He also denied the suggestion that no pistol and no cartridges were recovered at the instance of accused Joginder @ Joga from the polythene or that same had been planted by the IO.
18. PW-9 Sh. Vijay, deposed that about one year ago, he was relaxing at the pavement near Railway Hospital, Basant Lane and he saw 3-4 persons were quarreling with two other persons and thereafter the diggi of the bike was forcibly opened by 3-4 persons and they took away the bag from the diggi. He also deposed that those 3-4 persons were having helmet on their face and he had not seen their faces and he could not identify them. This witness was cross-examined by Ld. Addl. PP for State in which he deposed that he had not identified anybody in the PS. He denied that he had made statement, Mark-X to the police. He FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 13 of 51 did not identify the accused persons namely Mohnish Rawat, Joginder @ Joga and Sikandar @ Sunny Dogra in the court. He also denied the suggestion that willfully he was not identifying the accused persons due to their fear or that he had won over by the accused persons. This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
19. PW-10 Sh. Shishir Malhotra, Nodal Officer, Aircel Ltd. has proved CAF and CDR for the period of 01.07.2010 to 10.07.2010 of mobile phone no. 8802173838 issued in the name of Sikandar Nath Dogra alongwith certificate under Sec. 65B of The Indian Evidence Act exhibit as Ex. PW-10/A to Ex. PW-10/C. In his cross-examination, he denied the suggestion that no request of interception/surveillance of 8802173838 had ever been made by the police to his company. He also denied the suggestion that he was concealing the factum of interception or surveillance appearing on the computer screen as and when the account of particular phone number was opened to extract the CDR. He also denied the suggestion that he was deposing falsely by taking the aid of confidentiality in respect of the aforesaid mobile phone.
20. PW-11 Sh. Rajeev Ranjan, Nodal Officer, Tata Tele Services Ltd. has proved CAF and CDR for the period of 25.062010 to 12.07.2010, Cell ID charge with location of mobile phone no. 9278973215 issued in the name of Sakshi Verma alongwith certificate under Sec. 65B of The Indian Evidence Act exhibit as Ex. PW-11/A to Ex. PW-10/D. This witness was not FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 14 of 51 cross-examined on behalf of accused persons despite opportunity given to them.
21. PW-12 Sh. Ram Hari Singh, Sub Divisional Engineer/ Alternate Nodal Officer, MTNL has proved CAF and CDR for the period of 01.07.2010 to 10.07.2010 of mobile phone no. 9968008526 issued in the name of Kapil alongwith certificate under Sec. 65B of The Indian Evidence Act exhibit as Ex. PW-12/A to Ex. PW-12/C. In his cross-examination he deposed that he had no personal knowledge that whether the police had given any request to the MTNL for keeping this phone number on surveillance.
22. PW-13 Sh. Surinder Kumar, Assistant Nodal Officer, Idea Cellular Ltd. has proved CAF of mobile phone no. 9990090645 issued in the name of Anoop Singh. He deposed that he had not brought the CDR as it was more than one year old and have been destroyed automatically from the server. In his cross- examination, he admitted that police had not given any instruction or request for preserving the data/CDR of the number 9990090645.
23. PW-14 Sh. Gambhir @ Hombir in his supplementary statement dated 06.08.2024 deposed that his real name is Hombir, S/o Sh. Sati Lal and at the time of recording of his testimony as PW-14 he had mentioned his name as Gambhir, S/o Sh. Satish. He deposed that he was working as a field boy in the office of Singh Forex Pvt. Ltd., Main Bazar, Paharganj, Delhi FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 15 of 51 and on that day, he along with other employee Bhudev Singh had gone to HDFC bank at Connaught Place to withdraw money on the instruction of his employer Sh. Goldy. He further deposed that when they were returning to their office on a two wheeler scooter after withdrawing money and reached near Hospital situated at New Delhi Railway Station, three persons riding on a motorcycle came from behind and struck against their scooter. He further deposed that as soon as Bhudev stopped the scooter and made enquiries from motorcyclist, one of those three motorcyclists got down and pointed pistol upon them. He further deposed that they asked Bhudev to hand over the key of the scooter and when Bhudev refused to hand over the key, they snatched the key from him and opened the dicky of the scooter and took out bag containing money and fled away with the same. He also deposed that the did not know how much money was there in the bag. He further deposed that he had not seen the face of those three motorcyclists as they threatened him not to look at them otherwise they will shoot him. He also deposed that he could not identify the said three persons. This witness was cross- examined by Ld. Addl. PP for the State in which he deposed that he told the police in his statement recorded on the day of incident that he was threatened by those motorcyclists not to see their faces otherwise they will shoot him. He denied the suggestion that on 30.07.2010 he had gone to the PS and he had identified those three motorcyclists who were standing in the lobby of PS. He also denied the suggestion that he identified accused Mohnish Rawat as the person who was driving the said motorcycle on the FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 16 of 51 date of incident or that he had also identified other two accused persons i.e. accused Joginder @ Joga and Sikandar as the persons who had snatched the bag containing money. This witness was confronted with his statement recorded under Sec. 161 Cr.PC, Ex. PW-14/PX1 to Ex. PW-14/PX2. This witness was not cross- examined on behalf of accused persons despite opportunity given to them.
24. PW-15 Sh. Amzad, Deputy Manager, HDFC Bank, Cannaught Place has proved the letter bearing signature of Branch Manager Mr. Jyoti Kumar and statement of account no. 14012320000363 as Ex. PW-15/A & Ex. PW-15/B. In his cross- examination he deposed that he was not sure whether the entries of Rs. 9 lakh each on 02.07.2010 pertain to cash withdrawal or the same amount was related to some other account. He also deposed that he had no personal knowledge of the said account. He admitted that the name of person who presented the said cheques was not mentioned in Ex. PW-15/B. He denied the suggestion that he had not brought the said cheques as the cheques did not pertain to the cash withdrawal on 02.07.2010.
25. PW-16 Sh. D. K. Mishra, UDC, Home Department, Govt. of NCT of Delhi has proved Order No. F.5/210/2010/HG/1452, dated 22.07.2010, Order No. F.5/176-N/2009/HG/1369 dated 15.07.2010 & Order No. F.5/176-O/2009/HG/1419 dated 19.07.2010 issued by Sh. G. S. Patnaik, the then Principal Secretary (Home) as Ex. PW-16/A to Ex. PW-16/C. In his cross-
FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 17 of 51 examination, he deposed that he had no personal knowledge of the said sanction orders.
26. PW-17 SI Harpal Madan, was the first IO of this case. He deposed that on 02.07.2010 on receiving DD No. 43B, he alongwith Ct. Aizad Ali went to Central Hospital, Basant Lane where complainant Sh. Guru Dev Singh (Bhudev Singh) and his companion Ghambir @ Chotu met them. He further deposed that he recorded statement of complainant, Ex. PW-2/A and made endorsement, Ex. PW-17/B and he sent Ct. Aizad Ali to PS for registration of FIR. He further deposed that he prepared site plan, Ex. PW-17/B at the instance of complainant, recorded statement of Gambhir @ Chottu and tried to trace the accused persons but no clue was found. He further deposed that after registration of FIR, further investigation of present case was entrusted to SI Raman Kumar Singh. He further deposed that on 27.07.2010 he again joined the investigation of present case with IO who had interrogated accused Joginder @ Joga, Sikandar @ Sunny Dogra, Dharmender and Monish Rawat in PS in his presence and recorded their disclosure statement. He proved their disclosure statements as Ex. PW-17/C to Ex. PW-17/F. He also proved pointing out memos as Ex. PW-17/G to Ex. PW-17/I of spot of incident by accused persons namely Monish Rawat, Joginder @ Joga and Sikandar @ Sunny. He further deposed that on 12.08.2010 he again joined the investigation of the present case and proved the arrest memo, pointing out memo of spot of incident and disclosure statement of accused Deepak Sonkar. He FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 18 of 51 further deposed that on 01.09.2010, he again joined the investigation of the present case and and he along with IO overheard the recorded conversation and prepared its ten transcriptions marked Ex. PW-17/M1 to Ex. PW-17/M10. In his cross-examination, he deposed that he had not intercepted the calls which was recorded in Ex. PX-1 to Ex. PX-10. He also deposed that accused persons whose voices had been recorded in Ex. PX-1 to Ex. PX-10 were arrested in his presence and he had heard them and therefore he had become acquainted with their voices and hence he identified their voices. He also deposed that he had not prepared the transcript Ex. PW-17/M1 to Ex. PW-17/M10 but he had signed the transcripts as a witness at the instance of IO. He also admitted that he had never heard the voice of accused persons on call at any point of time except in the audio clips as stated by him in his examination-in-chief. He denied the suggestion that the transcripts Ex. PW-17/M1 to Ex. PW-17/M10 had not been prepared in his presence or that for this reason only, he had not written his name and particulars as witness on the transcripts.
27. PW-18 Sh. Deepak Dabas, Ld. Addl. District Judge, has proved the TIP proceedings of accused Manish Rawat as Ex. PW-18/E, TIP proceedings of accused Sikandar @ Sunny Dogra (since deceased) as Ex. PW-18/H and TIP proceedings of accused Joginder @ Joga as Ex. PW-18/J. This witness was not cross- examined on behalf of accused persons despite opportunity given to them.
FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 19 of 51
28. PW-19 Sh. Pankaj Bharti, Assistant Ahlmad in the court of Dr. Hardeep Kaur, ASJ-02, Patiala House Courts, New Delhi has proved the summoned record i.e. original case file of case FIR No. 75/2010, PS Karol Bagh, under Sec. 398/307/411/34 IPC & Sec. 25 Arms Act which contains disclosure statements of accused Shikandar @ Sunny Dogra, Mohnish Rawat @ Jonty, Ashok Kumar, Kapil @ Toni, Krishan @ Jagga, Dharmender and Joginder @ Joga, seizure memos of audio CDs containing voice samples of accused persons, seizure memo of pistol and live cartridges, personal search of accused Joginder @ Joga, seizure memo of documents and SIM cards, seizure memo of motorcycle bearing registration no. PB 05R 6958 along with RC & Helmet, seizure memo of cash, seizure memo of mobile phones, seizure memo of gold jewelery, personal search of accused Sikandar @ Sunny Dogra, seizure memo of pistol and two live cartriges, seizure memo of bag containing cash and pistol with cartridges, personal search of accused Mohnish Rawat @ Jonty, seizure memo of pistol and cartridges, seizure memo of cash, seizure memo of i-10 car, seizure memo of mobile, seizure memo of pistol and cartridges, seizure memo of audio CD, sketch of pistol with magazin and cartridges. The photocopies of the abovesaid documents attached with present matter was exhibited as Ex. PW-19/X (colly). In his cross-examination, he deposed that the judicial file of the case which had been brought by him in the court stood closed vide judgment dated 01.12.2021 and accused Joginder @ Joga was acquitted of all the charges. He further FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 20 of 51 deposed that no other accused was convicted as per record vide judgment dated 01.12.2021.
29. PW-20 Inspector Satender Vashisth was the IO of case FIR No. 75/2010, PS Karol Bagh. He deposed that he had arrested accused Joginder @ Joga, Sikandar Dogra, Mohnish @ Jonty, Kishan @ Jagga, Kapil @ Toni, Dharmender and Deepak Sonkar in that case and he had recorded their disclosure statements. He further deposed that on 17.07.2010, pursuant to disclosure statement of accused Joginder @ Joga, he took key from Malkhana of PS Special Cell which was recovered from the personal search of accused Joginder @ Joga. He further deposed that accused Joginder @ Joga took them to Flat No. 204, Gali No. 6, Mahipalpur Extension and got recovered a sum of Rs. 2,00,000/- from a red and blue colour bag and he disclosed that a sum of Rs. 1,80,000/- was his booty from the looted amount of present case. He further deposed that accused Joginder @ Joga also got recovered a pistol and live cartridge from the said flat and he also got recovered motorcycle bearing registration no. PB 05P 6958 which was used in the commission of offence in the present case. He further deposed that on 17.07.2010, he recovered three golden chain and two golden rings from accused Shikandar Dogra (since deceased). He also deposed that on 15.07.2010 he also got recovered Rs. 5,000/- in cash from accused Kapil @ Toni. He further deposed that on 31.08.2010, IO/SI Raman Kumar came to office of Special Cell where he handed over a CD, Mark-M of intercepted calls of accused FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 21 of 51 persons with respect to the present offence to IO/SI Raman Kumar. He further deposed that he also handed over seven other audio CDs Mark-Q1 to Q7 to IO/SI Raman Kumar. He proved their seizure memos as Ex. PW-20/A & Ex. PW-20/B. He also proved the seizure memos of mobile phones of accused persons as Ex. PW-19/X (colly). In his cross-examination, he deposed that the disclosure statements of accused persons were recorded by him in case FIR No. 75/2010, PS Karol Bagh and not in the present case and he had provided the copies of disclosure statements of accused persons to the IO/SI Raman Kumar of the present case. He admitted that IO/SI Raman Kumar was not aware about the arrest of accused persons. He also deposed that he had informed the IO of PS Paharganj regarding arrest of accused persons in case FIR No. 75/2010, PS Karol Bagh. He denied the suggestion that no recovery was affected at the instance of accused Joginder @ Joga or that no cash amount of Rs. 2 lakh was recovered from the red and blue colour bag. He also denied the suggestion that accused Joginder @ Joga did not disclosed that Rs. 1,80,000/- was the booty amount looted in the present case or that no amount was recovered at the instance of accused Joginder @ Joga. He also denied the suggestion that the CDs of intercepted calls were manipulated or that the conversations were not recorded in his presence. He also denied the suggestion that nothing incriminating was recovered at the instance of accused persons or that the mobile phone of accused persons were falsely seized by him in the case of PS Karol Bagh.
FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 22 of 51
30. PW-21 Sh. Surender Kumar, Nodal Officer, Bharti Airtel Ltd. has proved CAF and voter ID of customer and CDR of mobile phone no. 9560716086 issued in the name of Rakesh alongwith certificate under Sec. 65B of The Indian Evidence Act exhibit as Mark. PW-21/A to Ex. PW-21/C. He also proved CAF and copy of driving license of customer and CDR from period 25.06.2010 to 12.07.2010 of mobile phone no. 9571105256 issued in the name of Pawan Singh as Marked PW-21/D to Ex. PW-21/F. He also proved CAF and voter ID of customer and CDR of mobile phone no. 9950110985 issued in the name of Smt. Babita, W/o Sh. Subhash Chandra as Marked PW-21/G to Ex. PW-21/I. In his cross-examination, he admitted that the photocopies Marked PW-21/A to Marked PW-21/I did not show that documents had been issued by Bharti Airtel Ltd and none of the documents bears the authenticated stamp or Bharti Airtel Ltd. He denied the suggestion that record relied upon by him Marked PW-21/A to Marked PW-21/I was not the true copy of its original or that the CDR was not the correct details.
31. PW-22 Inspector Ajay Dalal, deposed that on 23.07.2010 he joined the investigation in the present case along with IO. He further deposed that on that day accused persons namely Sikander @ Dogra and Mohnish Rawat were formally arrested. He proved their arrest memos as Ex. PW-22/A and Ex. PW-22/B. He also deposed that on the next day, accused Joginder @ Joga, Ashok Kumar, Kapil @ Tony, Krishan @ Jagga and Dharmeder were also formally arrested by IO. He proved their arrest memos FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 23 of 51 as Ex. PW-22/C to Ex. PW-22/G. In his cross-examination, he deposed that he only signed the arrest memos Ex. PW-22/A to Ex. PW-22/G of accused persons in the court at Tis Hazari while the accused named in the arrest memos were produced before the court and he was not aware about the facts of the present case.
32. PW-23 PSI Arun Kumar, deposed that on 07.02.2024, on the direction of SHO, he collected the duplicate true copy of FSL Result, Ex. PW-23/A and filed the same by way of supplementary charge-sheet in the court. In his cross- examination, he deposed that he did not know anything about the present case. He denied the suggestion that document Ex. PW-23/A was not the true copy of its original or that he filed a false duplicate copy.
33. PW-24 Sh. Sunil Kumar (Retd.), the then Principal Staff Officer, Ministry of Home Affairs, Government of India, has proved order no. 10/14/3/97-T, Ex. PW-24/A & order no. 10/14/3/97-T dated 28.06.2010, Ex. PW-24/C passed by Sh. Gopal K. Pillai, the then Secretary, Ministry of Home Affairs, Government of India. He also proved letter Ex. PW-24/B issued by Sh. Atul Kumar Sahi, Commandant (MU), Ministry of Home Affairs regarding all records pertaining to lawful interception for the year 2010 had been destroyed as per legal provisions. In his cross-examination, he deposed that the letters Ex. PW-24/A and Ex. PW-24/C were signed in his presence. He denied the suggestion that he had not put up the file in question before the Secretary, MHA for his approval. He denied the suggestion that FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 24 of 51 original orders Ex. PW-24/A and Ex. PW-24/C were not destroyed or that the record of interception of calls made in the year was also not destroyed.
34. PW-25 Inspector Raman Kumar Singh, is the Investigating Officer of the present case. He narrated about the proceedings conducted by him during investigation. He deposed that on 23.07.2010, on receiving DD regarding arrest and production of accused persons namely Sikandar @ Sunny Dogra, and Mohnish in case FIR No. 75/2010, PS Karol Bagh, he along with SI Ajay Dalal reached Tis Hazari Courts and interrogated both the accused persons with permission of court, recorded their disclosure statements and formally arrested them in the present case. He further deposed that on 24.07.2010 again on receiving DD regarding production of accused persons namely Joginder @ Joga, Ashok Kumar, Kapil @ Toni, Krishan @ Jagga and Dharmender, in case FIR No. 75/2010, PS Karol Bagh, he reached Tis Hazari Courts and interrogated them with permission of court and formally arrested them in the present case. He further deposed that on 12.08.2010, he formally arrested accused Deepak Sonkar, on his surrender before the court, in the present case and recorded his disclosure statement. He further deposed that he moved application for PC remand of accused persons and recorded their disclosure statements. He further deposed that during investigation, he visited the office of Special Cell and he collected the case properties of the present case along with one key of rented accommodation of Sikandar @ Sunny Dogra. He FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 25 of 51 further deposed that he also collected CDs of intercepted calls of accused Joginder @ Joga with other accused persons from SI Satender Vashisth of Special Cell. He also collected intercepted calls of accused persons with respect to the present incident. He further deposed that on 31.08.2010, he along with Ct. Venu K. P. went to the house no. K-321, Gali No. 4, Mahipalpur, which was rented accommodation of accused Sikandar @ Sunny Dogra and seized one Voltas AC with Skybird stablizer, one sofa set black colour, one TV make Sansui with remote and one VCD make Philips with remote and one amplifier. He also got transcripted the intercepted calls and its CDs were sent to FSL for authenticity of the audio and collected CDRs/CAF of mobile phones used by the accused persons. In his cross-examination, he admitted that accused persons formally arrested by him when they were on police remand in case FIR No. 75/10, PS Karol Bagh. He also deposed that he read the disclosure statement made by accused Joginder @ Joga and other accused persons prior to their formal arrest. He admitted that there was a cutting in the arrest memos of accused persons namely Joginder @ Joga, Ashok Kumar, Kapil @ Tony and Kishan @ Jagga in the column no. 6, date of arrest at point X and Y which clearly showed the date of arrest is 23.07.2010 and not 24.07.2010. He denied the suggestion that he had intentionally made the cutting in the arrest memos to show that accused persons were arrested on 24.07.2010 and not on 23.07.2010. He admitted that he recorded the disclosure statements of all the accused persons in the Police Station and not in the court and he prepared the interrogation report in the court FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 26 of 51 but he did not filed the said interrogation report along with the charge-sheet. He denied the suggestion that no recovery was effected at the instance of accused Sikandar @ Sunny Dogra or that he had planted the same to somehow implicate the accused in the present case. He also deposed that he was not present at the time of alleged call interception by the police relating to the mobile phones allegedly used by the accused persons. He denied the suggestion that he did not conduct his independent investigation in respect of the present case.
35. PW-26 Dr. C. P. Singh, Assistant Director (Physics), FSL, Rohini has proved his detailed report Ex. PW-23/A regarding the authenticity of audio recordings of intercepted calls of accused persons. In his cross-examination he denied that IO in the present case sought the voice matching in these recordings with certain voice from him. He also denied that IO sought the clarification about the voice recorded in Ex. 1 to Ex. 8 with specific voice recording in these exhibits.
36. It is pertinent to mention that some documents pertaining to case FIR No. 75/10, PS Karol Bagh were also produced and proved by PWs 10 to 13 and inadvertently the particulars of abovesaid case was mentioned on the top at the time of recording of statement of the abovesaid witnesses in the present case.
37. After closing of Prosecution Evidence, separate statements of all the seven accused persons were recorded under Sec. 313 Cr.PC, wherein they denied all the charges against them. They FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 27 of 51 claimed that they do not know why they had been implicated in this false case. They also claimed that they were arrested in similarly placed two more cases by the police bearing FIR No. 75/2010, PS Karol Bagh and FIR No. 75/2010, PS Kamla Market and Hon'ble Court discharged them in both the cases during the course of trial. They further claimed that it is a false case and they have been falsely implicated in the this case because they belong to a tribe/schedule caste community to which police considers that the crime in Delhi are undertaking by them. They further claimed that they are victim of circumstances. Initially accused persons opted to lead defence evidence, however, they did not lead any defence evidence.
38. Final arguments were advanced by Sh. Pankaj Kumar Ranga, Ld. Addl. PP for the State, Sh. Surender Chauhan, Ld. Counsel for all accused persons.
39. 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 submissions, he argued that PW-2/complainant Sh. Bhudev Singh, PW-9 Sh. Vijay and PW-14 Sh. Gambhir @ Chottu @ Hombir did not identify the accused persons due to fear of accused persons but they have narrated the whole incident. He argued that cash in sum of Rs. 1,80,000/- has been recovered at instance of accused Joginder @ Joga while cash in sum of Rs. 5,000/- has been recovered at instance of accused Kapil @ Toni.
FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 28 of 51 He also argued that the mobile phone numbers of accused persons were put on surveillance and their conversations was recorded which has been duly proved by the prosecution. He also argued that FSL report, Ex. PW-23/A is in favour of prosecution. He also argued that through the circumstances, the prosecution has proved the criminal conspiracy between the accused persons. He also argued that the all the proceedings have been duly proved by the police witnesses and all the prosecution witnesses are of the sterling quality and hence all the accused persons should be convicted under all the Sections of law under which charges have been framed against them.
40. Per contra Ld. Defence Counsel for accused persons argued that the prosecution has miserably failed to prove its case beyond reasonable doubt. To substantiate his point, he argued that the investigation in the present case has been conducted in an arbitrary manner. He further argued that all the eyewitness witnesses i.e. PW-2/complainant Sh. Bhudev Singh, PW-9 Sh. Vijay and PW-14 Sh. Gambhir @ Chotu @ Hombir have turned hostile on the identity of accused persons. He also argued that the earlier FIR was registered under Sec. 356/379/34 IPC and later on the police officials gave it the colour of dacoity. He also argued that no independent witness was examined at the time of recovery of case properties at instance of accused persons. He also argued that the identity of recovered currency notes has not been fixed by the prosecution. He also argued that the subscribers of alleged mobile phone numbers have not been examined by the FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 29 of 51 prosecution to prove that the alleged mobile phones were used by the accused persons at the time of commission of offence. He also argued that nothing has been brought on record to prove the criminal conspiracy between the accused persons. He also argued that the voice in the intercepted calls has not been matched with the voice samples of accused persons and hence it cannot be said that the said voices are of accused persons. He further argued that since the prosecution has failed to prove its case against accused persons beyond reasonable doubts, all the accused persons should be acquitted under all sections of law under which charges has been framed against them.
41. In the present case, charges under Sec. 120B IPC, Sec. 395 IPC read with Sec. 120B IPC, Sec. 397 IPC read with Sec. 395 & Sec. 120B IPC & 412 IPC have been framed against the accused persons. These Sections have been elaborated as under:-
Sec. 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-
(i) an illegal act, or (ii) 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.
FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 30 of 51 Explanation: It is immaterial whether the illegal act is te ultimate object of such agreement, or is merely incidental to that object.
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.
42. 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.
FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 31 of 51
43. The case of the prosecution is that all the seven accused persons along with their associate Sikandar @ Sunny Dogra (since deceased) entered into a criminal conspiracy to commit robbery/dacoity and in pursuance of said conspiracy all of them committed dacoity in sum of Rs. 27,00,000/- upon PW-2/complainant Sh. Bhudev Singh and his associate/PW-14 Sh. Gambhir @ Chotu @ Hombir. The prosecution has led the evidence in form of CDR of mobile phones allegedly used by the accused persons and the recording of their telephonic conversations. Section 120B 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. Generally the conspiracy is hatched up in utmost secrecy and in these circumstances it becomes very difficult to prove the same 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 FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 32 of 51 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".
44. 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 conspiracy. Neither it is necessary that everyone of the conspirator take active part in the commission of each and every conspiratorial acts.
45. Thus, the criminal conspiracy in the present case is to be FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 33 of 51 inferred from the facts and circumstances of the present case.
46. As per the prosecution story, accused persons were in contact with each other at the time of commission of offence and they were using different mobile phones and their locations at the time of commission of offence was at the spot of incident. PW-10 Sh. Shishir Malhotra, Nodal Officer, Aircel Ltd. has proved the CAF and CDR of mobile phone number 8802173838 in name of Sh. Sikandarnath Dogra along with certificate under Sec. 65B of The Evidence Act. Similarly, PW-11 Sh. Rajeev Ranjan, Nodal Officer, Tata Tele Services Ltd. has proved the CAF and CDR of mobile phone no. 9278973215 in name of Ms. Shakshi Verma. PW-12 Sh. Hari Ram, Alternate Nodal Officer, MTNL has proved CAF and CDR of mobile phone no. 9968008526 in name of Sh. Kapil. PW-13 Sh. Surinder Kumar, Assistant Nodal Officer, Idea Cellular Ltd. has proved the CAF and CDR of mobile phone no. 9990090645 in name of Sh. Anoop Singh, PW-21 Sh. Surender Kumar, Nodal Officer, Bharti Airtel has proved the CAF and CDR of mobile phone no. 9950110985 in name of Smt. Babita. None of the abovesaid mobile phone number was issued in the name of any of the accused. The subscribers of abovesaid mobile phone numbers whose names have been mentioned above have not been examined as PWs to prove that at the time of commission of offence, the said mobile phone numbers were used by the accused persons. PW-25/IO Inspector Raman Singh who collected the CAF and CDR of abovesaid mobile phone numbers has not deposed as to which mobile phone number was being FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 34 of 51 used by which of the accused. None of the prosecution witnesses have deposed that any of the abovesaid mobile phone number was being used by the accused persons at any point of time. Thus, the use of any of the mobile phone numbers mentioned above cannot be attributed to the accused persons.
47. The prosecution has also relied upon the telephonic conversations in form of voice call recording between the accused persons. It is pertinent to mention that the voice samples of none of the accused persons were collected for sending the same to FSL to establish that the alleged voice recorded through the intercepted calls was of accused persons. PW-17 Inspector Harpal Madan identified the voice of accused persons at the time of recording of his testimony in the court on 15.09.2023 and he deposed that he identified their voice as the accused persons were arrested in his presence in the year 2010. PW-17 Inspector Harpal Madan is not an expert witness and the said conversation had not taken place in his presence. By not comparing the intercepted voice calls between the accused persons through FSL despite the fact that voice samples of accused persons were taken with the permission of court in case FIR No. 75/2010, PS Karol Bagh, the IO has left a big lacuna in the investigation and hence the voice recordings of the intercepted calls cannot be attributed to the accused persons.
48. As per prosecution story, the accused persons entered into conspiracy to commit robbery/dacoity. However, no date, time and place of entering into criminal conspiracy has been brought FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 35 of 51 on record by the prosecution. No evidence with respect to entering into said criminal conspiracy has been brought on record by the prosecution either through direct or through circumstantial evidence. Thus, the prosecution has failed to prove the ingredients of offence punishable under Sec. 120B IPC against the accused persons.
49. There are three eyewitnesses in the present case i.e. PW-2/complainant Sh. Bhudev Singh, PW-9 Sh. Vijay and PW-14 Sh. Gambhir @ Hombir @ Chhotu. All the abovesaid eyewitnesses have turned hostile on the identity of accused persons. PW-2/complainant Sh. Bhudev Singh has specifically deposed that three boys were riding the motorcycle and their faces were covered with helmets. He also deposed that the police showed him the photographs and asked him to identify the accused persons but he did not identify any of the accused persons. In the court also PW-2/complainant Sh. Bhudev Singh could not identify any of the accused. He also deposed that he went to jail to identify accused Sunny Dogra and Mohnish Rawat but he could not identify them. PW-8 Sh. Deepak Dabas, the then Ld. MM has proved the TIP proceedings of accused persons namely Mohnish Rawat @ Jonty, Sikandar @ Sunny and Joginder @ Joga vide proceedings Ex. PW-18/A to Ex. PW-18/K vide which PW-2/complainant Sh. Bhudev Singh failed to identify accused persons namely Mohnish @ Jonty and Sikandar @ Sunny while accused Joginder @ Joga refused to participate in the TIP proceedings. PW-9 Sh. Vijay specifically deposed that all FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 36 of 51 the three-four persons who committed the offence were having helmets on their face. PW-14 Gambhir @ Hombir @ Chhotu also deposed that he had not seen the faces of three motorcyclist as they threatened him not to look back otherwise they will shoot him. Since all the three alleged eyewitnesses have turned hostile on the identity of accused persons, their testimonies do not have any evidentiary value qua accused persons.
50. No CCTV footage of the alleged incident has been collected by the IO. In absence of any CCTV footage or independent evidence against the accused persons regarding the commission of offfence, the prosecution case has become doubtful.
51. PW-2/complainant Sh. Bhudev Singh deposed that the three boys came on motorcycle and they snatched the bag containing Rs. 27 lakhs. PW-9 Sh. Vijay deposed that he saw that 3-4 persons were quarreling with two other persons and thereafter the dicky of the bike was forcibly opened by 3-4 persons and they took away a bag from dicky. PW-14 Sh. Gambhir @ Hombir @ Chhotu deposed that three persons riding on motorcycle came from behind and struck against their scooter and one of the three motorcyclists got down and pointed a pistol upon them. Thus, three eyewitnesses i.e. PW-2/complainant Sh. Bhudev Singh, PW-9 Sh. Vijay and PW-14 Sh. Gambhir @ Hombir @ Chhotu have brought different versions on record with respect to the same incident and hence serious doubts have been created on their veracity.
FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 37 of 51
52. PW-23 Sh. C. P. Singh has proved the FSL Report, Ex. PW-23/A qua the non-tempering/alteration in the audio recording of the intercepted calls. However, PW-23 Sh. C. P. Singh has not given any opinion as to whether any of the voice in the alleged recording matched with the voice of any of the accused. Thus, the FSL Report, Ex. PW-23/A does not have any evidentiary value.
53. PW-5 Sh. Pabhjot Singh deposed that he was running the business of foreign exchange under the name of Singh Foreign Pvt. Ltd. He also deposed that he had no suspicion on his employees. He did not depose anything incriminating against any of the accused as he was not an eyewitness of alleged incident.
54. As per the prosecution story, cash in sum of Rs. 2,00,000/- was recovered at instance of accused Joginder @ Joga out of which cash Rs. 1,80,000/- was the booty looted in the present case. Further one AC along with stablizer, one sofa set black colour, one TV make Sansui with remote and one VCD make Philips was also recoverded from the rented accommodation of accused Sikander @ Sunny Dogra. Further cash in sum of Rs. 5,000/- was also recovered from possession of accused Kapil @ Toni. It is pertinent to mention that the alleged recovery of cash at instance of accused Joginder @ Joga and Kapil @ Toni was done by PW-20 Inspector Satender Vashisth in case FIR No. 75/2010, PS Karol Bagh. The recovery of the case property has to be proved by the prosecution beyond reasonable doubt in FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 38 of 51 compliance with the law laid down in this regard by Hon'ble Supreme Court of India. 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 under Sec. 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 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.
55. 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.
56. 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 FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 39 of 51 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.
57. 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 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 FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 40 of 51 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 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 FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 41 of 51 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."
58. In the present case, case property i.e. cash in sum of Rs. 1,80,000/- recovered at instance of accused Joginder @ Joga, cash in sum of Rs. 5,000/- recovered from possession of accused Kapil @ Toni, one AC along with stablizer, one sofa set black colour, one TV make Sansui with remote and one VCD make Philips recovered from the rented accommodation of accused Sikander @ Sunny Dogra by the investigating agency has been relied by the prosecution against the accused persons. PW-20 Inspector Satender Vashisth and PW-25 Inspector Raman Kumar Singh have not deposed that they had examined any independent public witness at the time of recovery of alleged case property. PW-6 Sh. Punit Kumar has specifically deposed that none of the accused persons was accompanied with the police when they seized the articles from his premises. He also deposed that such articles are easily available in the market. He also turned hostile with respect to identity of accused Sikandar @ Sunny Dogra. No notice under Sec. 160 Cr.P.C was given to the public person to join the investigation. It is pertinent to mention that the alleged bag in which the cash amount of Rs. 27 lakh was robbed has not been recovered by the IO. The identity of recovered currency notes has not been fixed either through PW-2/complainant Sh.
FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 42 of 51 Bhudev Singh, PW-5 Sh. Pabhjot Singh and PW-14 Sh. Gambhir @ Hombir @ Chhotu and hence it cannot be said the recovered currency notes were the part of robbed currency notes. No supporting proof that the alleged AC, Stablizer, TV, VCD Player, Sofa Set were purchased with the robbed amount has been placed on record by the IO. 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 property and the identity of case property has not been fixed, the recovery of case property has become doubtful. Thus, the prosecution has failed to prove the recovery of case property i.e. mobile phone from the possession of accused persons namely Joginder @ Joga, Kapil @ Toni and Sikandar @ Sunny Dogra (since deceased).
59. PW-2/complainant Sh. Bhudev Singh has not deposed that any deadly weapon was used in the commission of offence by any of the accused. PW-9 Sh. Vijay has also not deposed about the use of any deadly weapon. PW-14 Sh. Gambhir @ Hombir @ Chhotu has deposed that the motorcyclist got down and pointed pistol upon them. No such pistol has been shown to PW-2/complainant Sh. Bhudev Singh, PW-9 Sh. Vijay and PW-14 Sh. Gambhir @ Hombir @ Chhotu during the trial and hence it is doubtful whether any such deadly weapon was ever used by any of the accused persons. Thus, the ingredients of offence punishable under Sec. 397 IPC have not been brought on FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 43 of 51 record by the prosecution.
60. Sec. 412 deals with stolen property in commission of dacoity. Since the prosecution has failed to prove the ingredients of dacoity punishable under Sec. 397 IPC coupled with the fact that it has not been proved that the recovered case property was robbed in the present case, the prosecution has failed to prove the ingredients of offence punishable under Sec. 412 IPC. The prosecution has also failed to prove that the accused persons were involved in the commission of robbery/dacoity in the alleged incident dated 02.07.2010.
61. 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.
62. 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, FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 44 of 51 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 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 FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 45 of 51 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 FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 46 of 51 offender guilty of the charge alleged."
63. 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 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."
64. 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.
65. Due to turning of hostile of eyewitnesses i.e. PW-2/complainant Sh. Bhudev Singh, PW-9 Sh. Vijay & PW-14 Sh. Gambhir @ Hombir @ Chhotu coupled with the contradictions and inconsistencies in their testimonies, absence of any corroborating material and non-proving of fact that the FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 47 of 51 alleged mobile phone numbers were being used by the accused persons, serious doubts have been created upon the prosecution story. The versions of PW-2/complainant Sh. Bhudev Singh, PW-9 Sh. Vijay & PW-14 Sh. Gambhir @ Hombir @ Chhotu are not natural one. The things appears to have not happened in the manner these have been projected. In the light of aforesaid discussion, this court is of the considered opinion that the testimonies of PW-2/complainant Sh. Bhudev Singh, PW-9 Sh. Vijay & PW-14 Sh. Gambhir @ Hombir @ Chhotu are not clear, cogent, credible and trustworthy and same is not corroborated by other material evidence. The testimonies of PW-2/complainant Sh. Bhudev Singh, PW-9 Sh. Vijay & PW-14 Sh. Gambhir @ Hombir @ Chhotu in the present case cannot be said to be of sterling quality to secure the conviction of the accused persons.
66. It is established principle of law that if two views are possible, the view favourable to the accused must be accepted. The benefit of doubt must always go to the accused as the prosecution has to prove the case beyond reasonable doubt.
67. 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 FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 48 of 51 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."
68. 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. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 49 of 51
69. In the present case due to turning of hostile of PW-2/complainant Sh. Bhudev Singh, PW-9 Sh. Vijay & PW-14 Sh. Gambhir @ Hombir @ Chhotu coupled with the absence of any corroborating material, non-proving of fact that the alleged mobile phone numbers were being used by the accused persons, non-examination of any independent eyewitness and non- production of any CCTV footage showing the role of accused persons, 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.
70. For the reasons stated above, this court is of the considered opinion that the prosecution has failed to prove the ingredients of offence punishable under Section 120B IPC & Sec. 395 read with Sec. 120B IPC against accused persons namely Joginder @ Joga, Ashok, Kapil @ Toni, Kishan @ Jagga, Mohnish @ Jonty, Dhar- mender and Deepak Sonkar. Prosecution has also failed to prove the ingredients of offences punishable under Sec. 397 read with Sec. 395 IPC & Sec. 120B against accused Joginder @ Joga. Prosecution has also failed to prove the ingredients of offences punishable under Sec. 412 IPC against accused Joginder @ Joga and Kapil @ Toni, beyond reasonable doubt.
71. Accordingly in view of the aforesaid discussion, accused persons namely Joginder @ Joga, Ashok, Kapil @ Toni, Kishan @ Jagga, Mohnish @ Jonty, Dharmender and Deepak Sonkar are hereby acquitted for the offence punishable under Section 120B IPC & Sec. 395 read with Sec. 120B IPC. Accused persons FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 50 of 51 namely Joginder @ Joga and Kapil @ Toni are also hereby acquitted from the offences punishable under Sec. 412 IPC. Accused Joginder @ Joga is also hereby acquitted from the offences punishable under Sec. 397 read with 395 IPC & 120B IPC.
72. File be consigned to Record Room after due compliance.
Digitally signed by VIRENDER VIRENDER KUMAR Announced in the open court KUMAR KHARTA KHARTA Date: on 11th day of November, 2024 2024.11.11 16:27:17 +0530 (Virender Kumar Kharta) ASJ/FTC-02(CENTRAL) TIS HAZARI COURTS:DELHI: 11.11.2024 FIR No. 171/2010, PS: Paharganj, State Vs. Joginder @ Joga & Ors. Page No. 51 of 51