Delhi District Court
St. vs Vinod Yadav Etc on 8 March, 2011
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IN THE COURT OF SH. J. R. ARYAN,
ADDITIONAL SESSIONS JUDGE; NEW DELHI
Date of Institution : 18.01.2005
Date of judgment reserved on : 07.03.2011
Date of decision : 08.03.2011
Sessions Case No. 157/08
St.Vs Vinod Yadav etc
FIR No.626/04
U/s 394/397/395/120B/412 IPC
P.S H.N.Din
1. Vinod Yadav S/o Sukhdev Yadav
R/o Vill. Masoda P.O New Tand
P.S Jai Nagar, Dist. Kodarma(Jharkhand)
2. Suleman S/o Usman
R/o Village & PO Chandoi
P.S Islam Nagar, Dist.Badau ( U.P)
3. Moti Paswan @ Moti S/o Jageshwar Paswan
R/o Vill. Laudiya PO New Tand
P.S Jai Nagar, Dist.Koderma (Jharkhand)
4. Birender Yadav S/o Jai Narayan Yadav
R/o Vill.Virjayan, PO Bagdo
P.S Koderma Dist. Kodarma (Jharkhand)
5. Ashraf S/o Buniyad
R/o Vill. & PO Naroli
P.S Baniyadawar Dist.Muradabad (U.P)
J U D G M E N T :
1. Five accused persons in the present case have been tried on a charge for offence of criminal conspiracy, offence of dacoity committed 2 pursuant to that criminal conspiracy. Two of them were also charged U/s 412/34 IPC and one of them has also been tried U/s 27 of the Arms Act. Charge of conspiracy and dacoity against accused Vinod Yadav S/o Sukhdev Yadav, Suleman S/o Usman, Moti Paswan @ Moti S/o Jageshwar Paswan, Birender Yadav S/o Jai Narayan Yadav and Ashraf S/o Buniyad is that on 15/10/2004 at around 2 pm accused persons hatched a criminal conspiracy to commit an offence of robbery/dacoity and pursuant to their conspiracy three of them namely Birender, Vinod and Ashraf entered in to the residential house 1/12, Double Storey Jangpura, New Delhi, whereas other two accused Moti and Suleman remained guard on the entry door of the house and while accused persons were armed with deadly weapons. Robbery of gold articles comprising a gold bracelet, 7 gold bangles, Mangal sutra and a pair of ear ring was committed. Charge U/s 412/34 IPC is that on 17/10/2004 these two accused namely Ashraf and Virender Yadav were found in possession of the above stated gold jewelery articles which they knew or had reason to believe it to have been stolen/taken away in the incident of robbery/dacoity. Charge against accused Ashraf was that on 15/10/2004 during commission of this offence of robbery/dacoity he was in possession of a country made pistol and two live cartridges and he used the said weapon in the crime. All accused persons claimed trial by pleading not guilty to the charge.
2. Victim in this crime Smt. Taruna Hora aged around 28 years got this criminal case registered on her complaint Ex.PW2/A which was as follows; 3
3. She was resident of 1/12 Double Storey Jangpura and there was an STD booth situated just out side her residential house. On 15/10/2004 she was present in drawing room and the main entry door of that house was open. At around 2 pm three boys came at STD booth and they entered inside the drawing room saying that one telephone number was not being connected. Victim asked those boys as to how they dared to enter in to the house. Those culprits then took out a weapon which appeared to be pistol. One of them stood on the entry door and two others dragged victim inside the room and asked for almirah keys and threatened victim not to raise any hue and cry. Head of the victim smashed on the floor wherein victim sustained bleeding injury on her lips. Victim then gave keys of almirah to them and victim pretended to go unconscious. The culprits opened almirah to take the articles. They took off mangal sutra and two bangles gold which victim was having on her person. They were about to open almirah's locker but then there was a bell on the door. All three culprits then ran away and victim found her mother was on the door. Neighbouring people collected and someone informed police by number
100.
4. S.I Sanjeev Kumar PW10 the then incharge police post Jangpura had reached the spot pursuant to DD 16 which had been recorded at police post Jangpura regarding this incident. SI recorded this statement of Taruna Hora Ex.PW2/A and got the FIR registered for offence U/s 394/34 IPC by issuing rukka Ex.PW10/A at 3.20 p.m. 4
5. During investigation S.I found a document now proved as Ex.PW2/B from the bed room of the victim and this paper/document contained some phone numbers and names against those numbers. Out of these phone numbers IO was able to locate one No.24312689 as of address I18 Jangpura and when IO contacted occupant of that address it revealed that a servant of that person namely Vishnu Dev might have given that number to somebody. Vishnu Dev was joined in the investigation and he disclosed to IO that this telephone number had been given by him to his known persons Vinod Yadav. By joining Vishnu Dev IO then traced accused Vinod Yadav who was found resident of village Wazirabad. Accused Vinod Yadav was apprehended on 17/10/2004 from his residential room in village Wazirabad, pointed out and identified by Vishnu Dev. Accused Vinod Yadav when confronted with this document Ex.PW2/B and when interrogated about the incident of this case, he confessed his crime and named other four accused persons involved in this incident. His confession/disclosure was recorded as Ex.PW6/A. Pursuant to this disclosure accused Vinod Yadav is alleged to have taken out a gold bangle from a suit case which was there in his room and that gold kada was seized through memo Ex.PW6/H and it was taken in to a pulanda and seal BS was affixed on that pulanda.
6. According to information provided by Vinod Yadav other four accused were to assemble in Sarai Kale Khan Ganda nala spot and they could be apprehended from that spot. Accused Vinod Yadav was arrested 5 and joined in the team and the police party proceeded to Sarai Kale Khan. Rest of the four accused persons were apprehended from Sarai Kale Khan Ganda Nala spot as identified and pointed out by Vinod Yadav. Accused Ashraf and Birender Yadav were found carrying a country made pistol with two live cartridges, by each of those two, when their random search was taken. Search of accused Suleman led to recovery of a polythene bag from his pant pocket and some jewelery articles like a pair of ear rings, Mangalsutra and six pieces of gold bangle were recovered from that bag. Search of accused Moti Paswan led to recovery of 7 gold bangles from his pant pocket. These jewelery articles were taken in a separate cloth pulandas and then seized through seizure memos Ex.PW6/K & J. All these four accused persons were arrested. They also confessed their involvement in this crime.
7. All five accused persons were sought to join a TIP on 18/10/2004 but they refused to join TIP. Finally the recovered stolen property was got identified from Taruna Hora in a TIP held before Ld MM PW9 on 3/11/2004. With this incriminating evidence collected in this investigation accused persons were charge sheeted.
8. Case being committed to Sessions Court and prima facie case for offences as tried against accused in the above referred charge found made out that trial commenced.
9. Victim Taruna Hora when examined as PW2 has failed to support the prosecution case. Though she deposed the incident to have occurred 6 when three accused persons entered in to her house and they assaulted her but when asked if she could identify those culprits, she deposed that she was unable to identify the assailants because in the assault her spectacle had been thrown off her eyes and that she had became unconscious when the culprits had pushed her head on to the floor wherein she sustained a bleeding injury. She however deposed that assailants took two gold bangles and her Mangal sutra and later on she came to know that some artificial jewelery and bangles gold were also found missing.
10. Public prosecutor found witness to have resiled from her FIR statement or her subsequent 161 Cr P.C statement wherein after accused persons had declined to join TIP, they were identified by the victim. Victim was then cross examined by Ld Addl. PP for State but then in this cross examination she denied to have given the FIR version to a great extent. She denied her FIR version if assailants were having pistol like object and that they took out those weapons or that two of the culprits then dragged her inside the room and asked for key of almirah or that when they were about to open the almirah the door bell rang and accused persons ran away. She entirely denied to have given all such version to the police. She further denied to have identified the assailants on 18/10/2004 after accused persons had been brought in court to join in TIP and they declined to participate in TIP.
11. Victim being the sole eye witness of this occurrence, she being the only witness who would have identified accused persons as the perpetrator 7 of the crime in this case, when she failed to identify accused facing trial in this case there is no point for prosecution to press the TIP denial by accused persons as that would have been only a supporting or corroborative piece of evidence. Identity of accused persons in the incident of this case has not been thus proved or established.
12. Then comes the prosecution charge if could be found proved by recovery of the stolen articles. If recovery of stolen property can be found duly proved then recovery being within a short period of the commission of the crime, a legitimate inference of accused persons to have committed this crime of robbery/dacoity could be drawn. But then first it it is to be seen if recovery stands proved.
13. Victim Taruna Hora PW2 has deposed that in this incident assailants took two gold bangles and her mangal sutra from her person and they took it away. She further deposed that on next day she came to know that her artificial jewelery and bangles gold were also found missing. No details of this artificial jewelery or gold bangles was deposed by the witness. Nor such details were asked for and got deposed in the cross examination taken up by Ld Addl.PP after getting the witness declared hostile. Recovered stolen property was however put to the witness during her examination in this trial and she identified a golden colour kada (heavy bangle) which was an artificial jewelery item as Ex.P1 and further identified an artificial jewelery article Mangal sutra as Ex.P2. She further identified a pair of artificial ear ring as Ex.P3 and finally she identified six pieces of gold 8 bangle/kada but then by deposing the same which she was wearing at the time of the incident as Ex.P4. Accordingly except six pieces of a bangle which were gold rest of jewelery items identified by the witness were artificial jewelery articles. It is a matter of record that FIR version was that the assailants took away two gold bangles and a gold mangal sutra from the person of the victim. There was no mention at all if jewelery articles taken away by the culprits in this incident was/were artificial jewelery articles. Accordingly witness identifying golden colour artificial jewelery kada or artificial Mangal sutra item is contradictory to her FIR version as well the prosecution case. Victim accordingly identifying these articles makes no incriminating evidence in the absence of any such prosecution case deposed by the witness if these articles were stolen and taken away by the culprits.
14. Though she identified six gold pieces of gold bangle as Ex.P4/P1 to P6 but then it appears to be a matter of record that in the FIR victim simply stated that her two gold bangles were taken away. No description of any kind regarding those bangles was given in that FIR. After recovery of these gold bangle pieces a TIP proceedings as Ex.PW9/B was taken up wherein the victim identified those gold bangle pieces. A perusal of these TIP proceedings fails to reveal as to how much and to what extent similar and identical gold bangle pieces were brought by the investigating officer and then mixed up with the case property gold pieces that victim witness was called to identify the case property bangle pieces. Similarly deposition 9 of the victim in this trial just confined to her statement that she identified those gold bangle pieces, in the absence of victim witness to have deposed any kind of description of the gold bangles which were taken away by the culprits in the incident and by virtue of that description of the gold bangles she later on identified the recovered gold bangle pieces, it was difficult to rely on such a testimony establishing if those six gold bangle pieces where the one which gold bangle had been taken away by the culprits in the incident.
15. Then comes the evidence regarding recovery of the stolen property. IO claims to have recovered Ex.PW2/B from the place of occurrence and a telephone number appearing in this exhibit document provided a clue and Vishnu Dev was traced by that telephone number 24312689. Vishnu Dev is then alleged to have given this telephone number to one of his friend namely Vinod Yadav and then Vishnu Dev led the police party and got accused Vinod Yadav arrested. Vishnu Dev was a material witness, an important link towards a clue of arrest of Vinod Yadav but then Vishnu Dev has not been made a witness in this case. Only from Vishnu Dev that accused Vinod Yadav would have been able to bring on record as to how and why Vishnu Dev would have provided this telephone number to Vinod Yadav only. Accused Vinod Yadav in his 313 Cr P.C statement has admitted to have known Vishnu Dev being his covillager but beyond it he did not have any kind of concern or contact with Vishnu Dev. Vinod Yadav admitted that police reached his residence as guided by Vishnu Dev but he 10 denied to have written any such document Ex.PW2/B or that Vishnu Dev ever provided him any such phone number. Investigation on all these aspects was absolutely silent and these were important aspects of the case. Vishnu Dev was accordingly an important witness.
16. IO claims to have recovered a gold kada as taken out by Vinod Yadav from a brief case lying in his room. This gold kada turned out to be an artificial jewelery item and it has been so recorded in the seizure memo Ex.PW6/H. Investigating officer ought to have been alert and fair as to when as per FIR recorded on 15/10/04 that two gold bangles and one gold Mangal sutra had been taken away by the culprits in the incident then recovery of a gold bangle(kada) an artificial jewelery article from Vinod Yadav was a recovery not very much consistent with the prosecution story. Atleast to make this recovery believable some public witness ought to have been joined and the matter should not have been left to testimony of only police officials. Witnesses in this recovery as per seizure memo are only Ct.Ramesh Kumar, ASI Balwan Singh and SI Sanjeev Kumar IO himself.
17. How come Vinod Yadav when apprehended from village Wazirabad Delhi would know that other four accused persons had assembled in Sarai Kale Khan, Ganda Nala spot, it was for anybody's imagination. However, joining Vinod Yadav after his arrest, police proceeded and apprehended other four accused persons from a park in Sarai Kale Khan. These four accused persons in their 313 Cr P.C statement have explained and stated 11 their arrest from Sarai Kale Khan as a false evidence. They have explained as to how they were picked up from different places by the police. Police claims to have recovered a country made pistol with cartridges from two of these accused namely Ashraf and Birender Yadav. From accused Suleman besides artificial jewelery articles like a pair of ear ring, Mangal sutra, six gold bangle pieces were also recovered. Why accused will keep those artificial jewelery articles and gold bangle pieces with him was the fact contrary to a normal and natural human behaviour. Similarly accused Moti Paswan was found carrying 7 golden bangles in his pant pocket. But these bangles were artificial jewelery articles. Why he would carry those artificial jewelery articles, may be a value of few rupees. Those artificial jewelery articles have not been found connected with this incident when the victim Smt.Taruna Hora did not at all depose in her testimony if any such artificial jewelery articles had also been taken away Even those six gold bangle pieces have also not been found connected with the gold bangle taken away by the culprits from the person of the victim. More over victim Taruna Hora in her cross examination deposed that the jewelery articles she was identifying in court were in fact shown to her in the police station just next day of the incident. Such a testimony further creates doubt if recovery of these jewelery articles was effected by the police on 17/10/2004. Accordingly in the absence of any public witness joined in the arrest of accused persons from Sarai Kale Khan and then recovery of stolen jewelery from two of the accused persons as seen 12 above, it is difficult to believe the testimony of police officials . Recoveries thus cannot be held and found duly proved.
18. Similarly recovery of the fire arm and live cartridges from other two accused namely Ashraf and Birender Yadav also cannot be believed since arrest and apprehension of accused from Sarai Kale Khan spot itself is doubtful and not proved from the testimony of the police officials. PW8 ASI Balwan Singh who was part of the police team when those four accused persons were apprehended admits in cross examination that IO had not called any person from neighbourhood though there was availability of public persons. There was enough opportunity with the police officials to join some independent witness. Non joining of any public person where police party had proceeded on a prior information and particularly where they were going to arrest and apprehend culprits of a serious crime creates doubt in the prosecution story. Testimony of the police officials in the absence of a support by some independent evidence fails to inspire any confidence. When none of the accused has been identified by the victim as involved in this crime of robbery then apprehension of accused as carrying a fire arm also becomes doubtful and the charge cannot be found proved from the testimony of the police officials. Another lacuna in the prosecution case as regards charge under Arms Act is the non obtaining of sanction for prosecution in terms of Section 39 of the Act. No evidence has been adduced if sanction for prosecution was obtained. Charge under Arms Act also thus fails. 13
19. Prosecution consequently fails to prove its charge of dacoity or charge U/s 412 IPC against accused Suleman and Moti Paswan or its charge U/s Arms Act against Ashraft and Birender Yadav. Accused persons are acquitted of the charges. File be consigned to record room.
Announced in the Open (J.R.ARYAN)
court on 08/03/2011. ADDITIONAL SESSIONS JUDGE (01)
NEW DELHI DISTRICT, NEW DELHI.
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