Delhi District Court
State vs . Nawal Kishore Etc on 25 January, 2012
State Vs. Nawal Kishore etc
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 67/2011
State Vs. : 1. Nawal Kishore @ Gunga
S/o Sh Chiranji Lal,
R/o H. No. 212, Aliganj,
Kotla Mubarak Pur, New Delhi
2. Deepak @ Bund
S/o Sh Shiv Prakash
R/o H. No. 235, Aliganj,
Kotla Mubarak Pur, New Delhi
3. Bheekhu @ Romeo
S/o Sh. Raju Renold Richard
C/o Ganesh Chand
R/o H.No. 385, Shahpur Jat,
New Delhi
4. Amit John @ Bhola
S/o Sh John Francis
R/o H. No. 13/196, Kalyan Puri,
Delhi
SC Nos. 67/2011 1/21
State Vs. Nawal Kishore etc
5. Semuthal @ Lalu
S/o Sh Ragan Massey,
R/o N620, Sewa Nagar,
New Delhi
FIR No. 327/2006
P.S. Kotla Mubarak Pur
U/s 399/402/34 IPC & 25 Arms Act
Date of Institution : 22/12/06
Date when arguments
were heard : 25/01/2012
Date of Judgment : 25/01/2012
JUDGMENT
BRIEF FACTS OF PROSECUTION CASE:
Arrayed/charge sheeted accused have been sent up to face trial for having assembled on 09/05/2006 at about 7.40 pm at Vikas Sadan, bus stand near INA Market, Aurbindo Marg, New Delhi within the area of P.S Kotla Mubarak Pur and were making preparation for committing dacoity alongwith three other accomplices SC Nos. 67/2011 2/21 State Vs. Nawal Kishore etc namely Vinod @ Guddu, Babloo @ Mintu and Saurabh Singh who absconded. After apprehension, from the arrayed accused, except accused Semuthal @ Lalu, one button actuated knife each was recovered, who were in such unlawful possession of knife in contravention of notification issued by Delhi Administration.
2. Since earlier accused Bhiku @ Romeo absconded, his NBWs were issued and later he was declared proclaimed offender. Subsequently, on arrest said accused Bhiku @ Romeo was sent to jail on 27/07/2011 and lastly enlarged on bail in terms of order of bail dated 01/10/2011.
CHARGE
3. Charges for offences under Sections 399 IPC read with Section 34 IPC; 402 IPC read with Section 34 IPC were framed against all accused persons. Charge for offence under Section 25 Arms Act, 1959 was framed against all accused except accused Semuthal @ Lalu. All accused persons pleaded not guilty and claimed trial.
SC Nos. 67/2011 3/21
State Vs. Nawal Kishore etc WITNESSES:
4. To connect the accused with the offences charged, the prosecution has examined in all 6 witnesses namely Ct Mahesh Kumar (PW1); Ct Upender (PW2); HC Rajbir Singh (PW3); HC Veer Singh (PW4); Rtd. SI Balbir Singh (PW5) and SI Rajnish (PW6) STATEMENTS OF ACCUSED PERSONS:
5. Thereafter accused persons were examined under Section 313 Cr.P.C. All incriminating material in evidence was put to the accused persons. Accused persons pleaded innocence and false implication.
6. Accused Bhiku @ Romeo @ Mithu stated that four persons in civil clothes came to his Shahput Jat residence and took him to police station saying after inquiries he will be left. Accused Bhiku @ Romeo @ Mithu further stated that initially he was taken to police station Ambedkar Nagar and then he was taken to police station Lodhi Colony and later he was falsely implicated in this case. SC Nos. 67/2011 4/21
State Vs. Nawal Kishore etc
7. Accused Nawal Kishor @ Gunga stated that 7/8 persons in civil clothes in a Gypsy and Santro/Alto car came in between 5 to 6 pm on 09/05/2006 nearby his house from where he was lifted and falsely implicated in this case.
8. Accused Amit John @ Bhola stated that he with his wife were having tea in the house in evening time on a day in 2006; some police officials came and he was taken for enquiries to police station whose name he did not remember. Accused Amit John @ Bhola further stated that he was made to sit and police prepared papers and he was falsely implicated in this case.
9. Accused Semuthal @ Samuel Massey @ Lalu stated that on 09.05.06 at about 8.30pm, he was at his house at Sewa Nagar address while previously he had come from his office which was then at Kamra Tour and Travel, Shop No. 127, Defence Colony, Flyover Market, New Delhi. Accused Semuthal @ Samuel Massey @ Lalu further stated that his friend Vinod called him out at 8.30pm and when SC Nos. 67/2011 5/21 State Vs. Nawal Kishore etc he was coming downstairs then near the stairs in the gallery, two police officials in civil clothes apprehended him and took him to PS Ambedkar Nagar and he was medically examined in AIIMS. Accused Semuthal @ Samuel Massey @ Lalu further stated that he was then taken to PS Lodhi Colony and again in the morning, he was taken to PS Ambedkar Nagar and was made to sign on two papers. Accused Semuthal @ Samuel Massey @ Lalu also stated that 16 boys were lifted and were there in PS Ambedkar Nagar when he reached there; relatives of some boys came there and whoever gave money like Rs. 10,000/ or Rs. 5,000/, then police officials left those boys and others were not left. Accused Semuthal @ Samuel Massey @ Lalu further stated that he was not knowing any of his coaccused then; his family members reached at 2.00am in the night there; his family members were told that papers were already prepared and this case was foisted upon him.
10. Accused Deepak @ Bund stated that he was at the place of his maternal uncle at Kotla Mubarak Pur, which address he had given and was with his cousin there. Accused Deepak @ Bund further SC Nos. 67/2011 6/21 State Vs. Nawal Kishore etc stated that 3 persons in civil clothes came and asked him to come out as they were having some work and took him in Zen Car to PS K.M. Pur where his signatures were obtained in two papers. DEFENCE EVIDENCE:
11. Accused Nawal Kishore; Bhiku @ Romeo and Amit John @ Bhola examined Smt Savitri as DW1; Smt Nitu as DW2 and Smt Rajni as DW3 in defence evidence while accused Deepak and Semuthal denied to lead defence evidence.
ARGUMENTS
12. I have heard the arguments of Ld. Addl. PP for the State, the defence counsels, the accused and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
13. Ld. Addl. PP for the State argued that testimonies of material witnesses are consistent qua recovery of button actuated knife from the accused persons except the accused Semuthal @ Lalu SC Nos. 67/2011 7/21 State Vs. Nawal Kishore etc and the accused in furtherance of their common intention having assembled and made preparation for committing dacoity, as charged and has prayed for conviction of the accused persons.
14. Ld. Defence Counsels for the accused argued that none of the accused had any connection with the other accused persons and this aspect was not investigated by the investigating officer and material witnesses have testified of contradictory versions devoid of credence and the testimonies of official/police witnesses are untrustworthy and unreliable to base the conviction in the absence of corroboration from any independent witness. Ld. Defence Counsels have prayed for acquittal of the accused as prosecution has failed to prove its case against the accused persons beyond reasonable doubt. APPRECIATION OF EVIDENCE:
15. SI Balbir Singh (PW5)(now retired) testified that on 09/05/06 he (PW5) alongwith ASI Paramjeet; HC Veer Singh (PW4); HC Shyamvir and HC (then constable) Rajbir (PW3) were posted in Special Staff and were on patrolling duty and present at Nehru SC Nos. 67/2011 8/21 State Vs. Nawal Kishore etc Stadium; at about 7.15 pm SI (now retired) Balbir Singh (PW5) received secret information which he briefed to his accompanying aforesaid staff and pursuant thereto they all went to INA Market bus stand by government vehicle. SI (now retired) Balbir Singh (PW5) and his other aforesaid staff also met Ct Mahesh Kumar (PW1) and Ct Upender (PW2), the police officials of P.S K.M Pur at DDA Vikas Sadan near INA Market and also briefed them about secret information and they also joined the raiding party. Further, SI (now retired) Balbir Singh (PW5) testified that he also requested 4/5 persons to join the proceedings but none agreed to do so; SI (now retired) Balbir Singh (PW5) deployed HC Veer Singh (PW4) as a shadow witness, directed him to make gesture by turning his hand over his head after hearing the conversation between accused persons; at about 7.35 pm, HC Veer Singh (PW4) gave gesture in the said manner and the aforesaid police officials apprehended five arrayed accused from the spot amongst the eight persons while three accomplices of the arrayed accused managed to flee from the spot.
SC Nos. 67/2011 9/21
State Vs. Nawal Kishore etc
16. In the course of incident, one button actuated knife each i.e., Exts. P1, P2, P3 and P4 were recovered from possession of the arrayed accused except accused Semuthal @ Lalu. Sketches Exts PW3/A, PW3/B, PW3/C and PW4/D of aforesaid knives were prepared by SI (now retired) Balbir Singh (PW5) and knives were converted into separate parcels, sealed with the seal of BS and seized vide memos Exts PW3/E, PW3/F, PW3/G and PW3/H. SI (now retired) Balbir Singh (PW5) prepared rukka Ex PW5/A, sent Ct. (now HC) Rajbir Singh (PW3) with rukka to get FIR registered. ASI Gurcharan Singh recorded FIR No. 327/06, under Sections 399/402 IPC and 25 Arms Act, copy Ex PW6/PA at police station Kotla Mubarak Pur.
17. HC Veer Singh (PW4) testified that he had over heard the conversation amongst the accused and their absconded accomplices regarding planning to loot bus in the area of P.S Kotla Mubarak Pur.
18. Consequent upon registration of the FIR, investigation SC Nos. 67/2011 10/21 State Vs. Nawal Kishore etc was entrusted to SI Rajnish (PW6) who had reached at the spot, interrogated and arrested the arrayed accused vide memos Exts PW1/A, PW1/B, PW1/C, PW1/D and PW1/E; personal searches of the accused were conducted vide memos Exts PW1/F, PW1/G, PW1/H, PW1/I and PW1/J. SI Rajnish (PW6) also recorded disclosure statements Exts PW6/A, PW6/B, PW6/C, PW6/D and PW6/E of arrayed accused and also prepared site plan Ex PW6/F at instance of SI (now retired) Balbir Singh (PW5).
19. The case of prosecution primarily hinges upon the testimonies of the material witnesses viz., members of the raiding party examined namely Ct Mahesh Kumar (PW1); Ct Upender (PW2); HC Rajbir Singh (PW3), HC Veer Singh (PW4) and SI (now retired) Balbir Singh (PW5).
20. Undoubtedly, the conviction of the accused can be based upon the testimonies of the official/police witnesses alone in absence of corroboration in material particulars from testimony of any independent witness. There is no rule of law or prudence to the SC Nos. 67/2011 11/21 State Vs. Nawal Kishore etc contrary of aforesaid. But for that, it is bounden duty of the prosecution to prove that such testimonies of official/police witnesses inspire confidence, are cogent, intrinsically reliable and trustworthy besides being probable.
21. When the testimonies of aforesaid five members of the raiding party; material witnesses are read as a whole, it becomes crystal clear that all these witnesses tell different tales of the put forth prosecution version which testimonies are inter se contradictory, go to the root of the matter to check, shake and demolish the put forth version of the prosecution.
22. The purport of testimonies of SI (now retired) Balbir Singh (PW5), HC Rajbir Singh (PW3) and HC Veer Singh (PW4) is deployment of HC Veer Singh (PW4) by SI (now retired) Balbir Singh (PW5) as a shadow witness to over hear the conversation inter se accused and then give gesture enabling the members of the raiding party to over power the accused.
SC Nos. 67/2011 12/21
State Vs. Nawal Kishore etc
23. Per contra, testimonies of Ct Mahesh Kumar (PW1) and Ct Upender (PW2) find no whisper of deployment of HC Veer Singh (PW4) by SI (now retired) Balbir Singh (PW5) as a shadow witness with direction to over hear the conversation of the accused and pursuant thereto HC Veer Singh (PW4) actually having over heard the conversation of the accused and consequently having made any gesture enabling the members of the raiding party to apprehend and arrest the accused. What is borne out from testimonies of PW1 and PW2 is simply that after they joined the raid and reached the scene of crime, secret informer pointed towards the accused persons and immediately thereafter members of the raiding party apprehended the accused persons. Such narration of sequence of occurrence by PW1 and PW2 makes the edifice raised by prosecution crumble to ground since it is devoid of any narration of any kind of planning of dacoity by accused persons conjointly or in any manner sharing common intention or even being acquainted or connected with each other.
24. Despite having refreshed his memory from his previous SC Nos. 67/2011 13/21 State Vs. Nawal Kishore etc statement, at the outset, before deposition, Ct Upender (PW2) still testified that at the scene of crime when they had reached 4/5 boys had come, collected there. All material witnesses were unable to specify search of which accused was taken by which member of raiding party.
25. SI (now retired) Balbir Singh (PW5) in the course of his cross examination elicited that in the enquiry done by him on apprehension of accused, it was revealed that the accused were planning to commit dacoity in some flat in Sarojini Nagar and perhaps East Kidwai Nagar or someone will come in a bus and to loot him. I advert to the rukka Ex PW5/A, where it was mentioned that accused Deepak alongwith persons having absconded namely Vinod @ Guddu, Saurabh Singh @ Khachcher were directing the other accused as, "jis bus mei sawari kam ho, usme chadna hei tatha bus ko rukwakar dono gate band karke sabhi sawario ko lutna hai, yadi koi virodh karta hai to chakuo ka bhi istemal karna hai". As per SI (now retired) Balbir Singh (PW5), HC Veer Singh (PW4) over heard the conversation of the accused from distance of approximately 10 SC Nos. 67/2011 14/21 State Vs. Nawal Kishore etc feet. In this context, what HC Veer Singh (PW4) has testified is that he had heard the conversation that accused were planning to loot the bus in the area of P.S Kotla Mubarak Pur. HC Veer Singh (PW4) has not given any kind of aforesaid description of the talks inter se accused qua alleged manner of planning to commit dacoity as they are borne out in the rukka Ex PW5/A, elicited above. Also, HC Veer Singh (PW4) has not testified as to which accused was speaking of exactly what words and communicating with which of the accused.
26. From amongst the button actuated knives Exts P1 to P4, none of the arrayed and cited aforesaid witness of prosecution could exactly pin point which button actuated knife was recovered from which accused. While Exts P1 to P4 were not shown by the prosecution to PW1 and PW2 but PWs 3,4 and 5 neither could identify any knife specifically recovered from specific accused nor these witnesses could tell any kind of description/peculiar or different characteristics of such button actuated knives alleged to have been recovered from accused persons.
SC Nos. 67/2011 15/21
State Vs. Nawal Kishore etc
27. Ct Mahesh Kumar (PW1) even testified that accused Nawal, Semuthal, Deepak and Amit, all four persons were in possession of button actuated knives. Ct Mahesh Kumar (PW1) did not testify of any button actuated knife recovered from accused Bhiku @ Romeo. Ct Mahesh Kumar (PW1) was not cross examined by Ld. Addl. PP for the State for his aforesaid contradictory version to the presented prosecution case.
28. Ct Mahesh Kumar (PW1) was unable to specify whether SI (now retired) Balbir Singh (PW5) with other staff had come in a government vehicle or private vehicle; who took search of accused persons; whether SI (now retired) Balbir Singh (PW5) offered himself for search before search of accused.
29. In the course of his examination, Ct Upender (PW2) wrongly identified (1) accused Deepak saying him to be accused Nawal Kishore; (2) accused Semuthal @ Samuel @ Lalu saying him to be accused Deepak; (3) accused Nawal Kishore saying him to be accused Semuthal @ Samuel. Ct Upender (PW2) was unable to even SC Nos. 67/2011 16/21 State Vs. Nawal Kishore etc identify other two accused namely Amit John and Bhiku @ Romeo but in the course of his cross examination by Ld. Addl. PP for the State, he parrotlike admitted the suggestions of Ld. Addl. PP for the State.
30. HC Rajbir Singh (PW3) in the course of cross examination admitted knives Exts P1 to P4 were different having different characteristics but none amongst the examined recovery witnesses of police testified of any of the characteristics of the recovered button actuated knives.
31. HC Veer Singh (PW4) was even unable to tell the specific direction/position of the members of the raiding party at spot, was unable to even tell how many public persons as to in number 20/50/100 or 200 were at the bus stop, the scene of crime. HC Veer Singh (PW4) otherwise candidly admitted of none of public persons having told them about the intention of any of the accused to loot the bus. In terms of testimony of HC Veer Singh (PW4), none amongst the members of the raiding party had offered their search to SC Nos. 67/2011 17/21 State Vs. Nawal Kishore etc any of the accused or other police officials before conducting search of accused. SI (now retired) Balbir Singh (PW5) organizer of raiding party and king pin of apprehension of the accused testified that 2/4 other persons were present at the bus stop but he (PW5) did not enquire from said other persons as to what conversation of accused they heard nor these persons were joined in the investigation.
32. Accordingly, there was admitted availability of the public persons at the scene of crime. Alleged apprehension of the accused is at 7.40 pm at busy bus stand which is in the vicinity of busy market place namely INA Market which was at distance of elbow of officers of investigating agency. Yet, feeble plea of refusal of few persons to join investigation, search of accused and seizure of arms from them has been churned. It seldom finds favour with the Court, since none of the refusing persons has been proceeded against as per law for commission of offence under Section 187 IPC. It is crystal clear on the face of record that no reasonable efforts were made at all to join any independent person available at the scene of crime, from any shop in the vicinity and at INA Market or nearby locality despite SC Nos. 67/2011 18/21 State Vs. Nawal Kishore etc admitted availability.
33. Knowing fully well that the accused were allegedly apprehended for Sessions trial offences, SI Rajnish (PW6) did not find it convenient to enquire any previous acquaintance or connection inter se accused despite the fact that they had been apprehended for allegedly assembling and preparing for committing dacoity. Recourse was not taken to any method of scientific investigation.
34. Smt. Savitri (DW1), mother of accused Nawal Kishore; Smt. Neetu (DW2), wife of accused Bhiku @ Romeo and Smt. Rajni (DW3), wife of accused Amit John @ Bhola, all testified of their said relatives accused were lifted from their respective houses and falsely implicated in this case.
35. On record in the evidence of prosecution there is no version about the exact words spoken by any or all accused or as to what they conversed by which it could be inferred or proved that they had in any manner made any preparation to commit SC Nos. 67/2011 19/21 State Vs. Nawal Kishore etc dacoity/robbery or had assembled for such purpose.
36. For want of any cogent evidence of the conversation amongst the accused, it stands not proved that they assembled for purposes of committing dacoity/robbery and otherewise had made any preparation to commit any such crime(s).
37. Afore elicited versions of the examined material official witnesses do not inspire confidence and as their testimonies are embedded with material contradictions and severe infirmities going to the root of the matter and check and shake the basic version and core of the prosecution case, more over in absence of corroboration in material particulars from testimonies of any independent witnesses, these testimonies cannot be made the basis to convict the accused for offences charged. In view of foregoing discussions, the prosecution has failed to prove its case against the accused persons, beyond reasonable doubt. Accused persons are held not guilty and acquitted for the offences charged. Their bail bonds are cancelled and sureties are discharged. Case properties viz., knives be confiscated to State SC Nos. 67/2011 20/21 State Vs. Nawal Kishore etc after expiry of period of appeal. File be consigned to record room.
Announced in the open court (GURVINDER PAL SINGH)
on date 25/01/2012 ASJ (FTC)/SD/ NEW DELHI.
SC Nos. 67/2011 21/21