Delhi District Court
State vs . (1) Satish (Proceedings Against on 25 October, 2017
IN THE COURT OF AJAY GOEL
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 441061/2016
State Vs. (1) Satish (Proceedings against
him stands abated),
S/o Sh. Rati,
R/o Village Barhama, PS Beri,
District Jhajjar, Haryana.
(2) Joginder @ Leela,
S/o Sh.Om Prakash,
R/o Village & Post Office Mandothi,
PS Bahadurgarh, District Jhajjar,
Haryana.
FIR No. : 304/11
Police : Dwarka South
Station
Under : 392/397/34 IPC
Sections
Date of Institution of case : 21.07.2015
Date of assignment to this court : 05.06.2017
Date of arguments : 06.10.2017
Date on which judgment was pronounced : 25.10.2017
JUDGMENT:
Case of Prosecution:
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1. The case of the prosecution is that the present case was registered on the written complaint given by the Lt.
Col. P. Guha. On 19.10.2011, complainant came to the PS and gave a complaint by stating therein that on 18.10.2011, he visited the house of his colleague Lieutenant Colonel SP Tripathi, r/o H. No. 323, Salaria Officer's Enclave, Sector-21, Dwarka, New Delhi. After leaving his residence at about 2300 hrs, he headed towards the Palam Flyover and after some distance, he had some confusions about the correct route, he slowed down his vehicle and took the right turn leading towards SPG HQ Complex, a motorcycle came from behind and stopped right ahead of his slowed down car. There were two men on the motorcycle, out of which, one man jumped and came to the driver side of his car and through the open window, placed a weapon on his forehead and demanded that he come out of his car and handover all his belongings to him. At that time, he was alongwith his wife, son and daughter and because of their safety of his Sessions Case No. 441061/2016 State Vs. Satish & Anr. Page No. 2/18 family, he handed over all his belongings to him and in the meanwhile, a second man, who was on motorcycle was also joined first one and asked him what else did he have, and pulled his shirt, after seeing gold chain on his neck, they asked him to give that chain and he handed over the same to them. After this he put his hand in his shirt pocket, there was his identity card, which was secured with the chain around his neck through Buttonhole of his shirt. He requested not to take away his identity card but on seeing the head light of one car was approaching from SPG Headquarters side, they hurriedly snatched the identity card pouch fled away from the spot. One of the assailant was wearing yellowish colour T-shirt and other one was wearing Blackish wind sheeter and both of them were wearing jeans, they put their helmets during full course of this incidents. Thereafter, he made a call at 100 number. After completion of investigation, the charge sheet was filed under Section 392/34 IPC. Sessions Case No. 441061/2016 State Vs. Satish & Anr. Page No. 3/18 Charge against the accused:
2. Vide order dated 08.05.2012, the charge for the offence under Section 397 IPC was framed against the accused Satish to which he pleaded not guilty and claimed trial. Another separate charge for the offences under Section 392/34 IPC was framed against both the accused to which they pleaded not guilty and claimed trial.
3. Vide order dated 05.06.2017 proceedings against accused Satish stood abated as accused Satish had expired.
Witnesses examined :
4. The prosecution examined 16 witnesses in support of its case who are as follows:-
PW1 is HC Vijender. He has deposed that on 26.10.2011, he joined the investigation with Inspector Naresh Kumar in FIR No. 238/11 PS Dwarka North. He has deposed about the receiving of secret Sessions Case No. 441061/2016 State Vs. Satish & Anr. Page No. 4/18 information, arrest of accused Narender @ Leela and he proved the seizure memo of country made pistol and ammunition is Marked P1/1, copy of arrest memos of both the accused as Mark P1/2 and P1/5, personal search of accused Satish is mark P1/3, copy of disclosure statement of both the accused as Mark P1/4 and PW1/6 in the abovesaid FIR.
PW2 is Ct. Om Prakash. He has deposed that on the same lines as deposed by PW1.
PW3 is ASI Manjit Singh. He was the Duty Officer and proved the copy of FIR No. 304/11 as Ex.PW3/A, and his endorsement on rukka as Ex. PW3/B. PW4 is Lt. Col. P. Guha. He is the complainant in the present case and his testimony will be considered later on.
PW5 is Mrs. Srimani Guha. She is the wife of the complainant Lt. Col. P. Guha.
PW6 is W/Ct. Sunita. She has deposed that on 27.10.2011, she was posted at PS Dwarka South as Sessions Case No. 441061/2016 State Vs. Satish & Anr. Page No. 5/18 DD Writer and proved the DD no. 24B as Ex.PW6/A. PW7 is ASI Bhoop Singh. He has deposed that on 29.11.2011, he was posted at PS Dwarka North as Duty Officer and on receiving rukka from Ct. Om Prakash he got registered the present car FIR through Computer Operator HC Satya Narayan and proved the photocopy of the same as Ex.PW7/A. PW8 is ASI kamlesh. He has deposed about the information received at PS Dwarka South that accused Ranvir @ Golu had been arrested and disclosed about the committing of offence of case FIR No. 340/11 of PS Dwarka South and about handing over the gold chain to him by accused Satish and Joginder and that the said information was reduced into writing vide DD No. 21A and proved the same as Ex.PW8/A. PW9 is Ct. Ravinder Singh. He has deposed that regarding the arrest of accused Ranbir @ Golu and his disclosure made that on 11.10.211 he and his Sessions Case No. 441061/2016 State Vs. Satish & Anr. Page No. 6/18 associates had committed robbery with the proprietor of Balaji Building Material and also disclosed about the commission of robbery alongwith his associates Satish and Joginder @ Leela of gold chain of a person, driving a car in Dwarka in the night of 18.10.2011 and proved the arrest memo of accused Ranbir @ Golu as Ex.PW9/A and his disclosure memo as Ex.PW9/B. PW10 is SI Devender Singh. He has deposed about the coming of secret informer information, bringing said facts to the knowledge of SHO concerned and on his instructions, constitution of a raiding party. He has further deposed about the arrest of the accused Ranvir @ Golu and his disclosure and proved the arrest memo as already Ex.PW9/A, disclosure statement as Ex.PW9/B and DD No. 21A dated 31.10.2011 regarding information in pursuance to disclosure statement of accused Ranvir @ Golu as Ex.PW8/A. Sessions Case No. 441061/2016 State Vs. Satish & Anr. Page No. 7/18 PW11 is Ct. Karamvir Singh. He was the member of raiding party and deposed about arrest and disclosure made by accused Ranvir @ Golu and proved his arrest memo already Ex.PW9/A and disclosure statement as Ex.PW9/B. PW12 is SI Data Ram. He has deposed that on 26.10.2011, he joined investigation of case FIR No. 238/11 under Section 307/186/353/34 IPC & 27/54/59 Arms Act. He has further deposed that on superficial search of accused Satish, recovery of one country made pistol (desi katta) loaded with one live cartridge was effected from his left side dub of his wearing pant and besides it, one live cartridge was also recovered from his right side pocket of his wearing pant. He has further deposed that sketch of the said recovered prohibited arms and ammunition were prepared by him and the same was proved as Ex.PW12/A. He has further deposed that during investigation, accused Satish disclosed about the Sessions Case No. 441061/2016 State Vs. Satish & Anr. Page No. 8/18 robbery committed by him with his associates Naresh, Joginder @ Leela and Golu on 11.10.2011 by using said recovered pistol and after that case FIR No. 239/11 under Section 25/54/59Arms Act was got registered and separate kalandra under Section 41.1(a) Cr.P.C. was prepared by him against accused Naresh @ Karne and Joginder @ Leela and proved the photocopy of the same as Mark PW12/B. He also deposed that accused Jogender @ Leela disclosed that on 18.10.2011, he alongwith his associate Satish had committed robbery of gold chain and he handed over the chain to accused Golu for selling and he had thrown the purse and I-card of that robbed person in Najafgarh drain by them.
PW13 is Ct. Surender Singh. He has deposed that on 04.11.2011, he joined the investigation with IO and obtained the PC remand of accsued Satish, Joginder @ Leela and Golu and proved their disclosure statements as Ex.PW13/A, PW13/B and Sessions Case No. 441061/2016 State Vs. Satish & Anr. Page No. 9/18 Ex/PW13/C respectively and pointing out memos of the spots as Ex.PW13/D and Ex.PW13/E. PW14 is Sh. Sumit Dass, Sr. Civil Judge (North) cum Rent Controller, District Courts, Rohini, Delhi. He has deposed that on 31.10.2011 he carried out the TIP proceedings of accused Joginder @ Leela and proved the same as Ex.PW14/A and application for supplying the copy of TIP proceedings of his as Ex.PW14/B. He has further deposed that on 31.10.2011, he carried out the TIP proceedings of accused Satish and proved the same as Ex.PW14/C. He has further deposed that accused Joginder @ Leela and Satish were correctly identified by the witness Lt. Col. P. Guha.
PW15 is SI Nanag Ram. He has deposed that on 26.10.2011, the investigation of the case FIR No. 239/11 under Section 25/54/59 Arms Act of PS Dwarka North was haded over to him. He has further deposed that he prepared site plan at the instance of Sessions Case No. 441061/2016 State Vs. Satish & Anr. Page No. 10/18 first IO and proved copy of FIR of that case as Ex.PW15/A, copy of site plan as Ex.PW15/B, copy of sketch of country made pistol as Ex.PW12/A and copy of disclosure statement of accused Satish as Ex.PW15/C. PW16 is SI Ashok Kumar. He has deposed that on 19.10.2011, complainant Lt. Col. P. Guha had came to PS and handed over him a written complaint. He has proved the complaint given by the complainant as Ex.PW4/A, FIR No. 304/11 as Ex.PW3/A, his endorsement on the FIR No. 304/11 as Ex.PW3/B, site plan Ex.PW4/B. He has further deposed that on 27.10.2011, he received DD no. 24B regarding arrest of two accused persons and proved the same as Ex.PW6/A, copy of FIR No. 239/11 PS Dwarka North as Ex.PW15/A, site plan as Ex.PW15/B, sketch of desi katta and cartridge as Ex.Pw12/A, disclosure statement of accused Satish as Ex.PW15/C, arrest memo of accused Satish and Joginder @ Leela as Sessions Case No. 441061/2016 State Vs. Satish & Anr. Page No. 11/18 Ex.PW16/A and Ex.PW16/B respectively, their disclosure statements as PW16/C and Ex.PW16/D, carbon copy of application for TIP proceedings as Ex.PW16/E. He has further deposed that on 31.10.2011, he received DD No. 21A regarding arrest of another accused Ranbir @ Golu in case FIR No. 366/11 u/s 392/397/120-B/34 IPC PS Najafgarh and proved the same as Ex.PW8/A, arrest memo of accused Ranbir @ Golu as Ex.PW16/F, his disclosure statement as Ex.PW16/G. He has further deposed that on 04.11.2011, he moved an application for police custody remand of accused Satish, Joginder @ Leela and Ranbeer @ Golu and after interrogation, he recorded their supplementary disclosure statements and proved the same as Ex.PW13/A, Ex.PW13/B and Ex.PW13/C respectively, memo of making efforts to recover robbed gold chain as Ex.PW16/H, pointing out memo of the spot where motorcycle make 'Pulsar' was parked as Ex.PW13/E. He has further Sessions Case No. 441061/2016 State Vs. Satish & Anr. Page No. 12/18 deposed that on 05.11.2011, accused Joginder and Satish pointed out the spot of offence and proved the pointing out memo as Ex.PW13/D.
5. Thereafter, Prosecution Evidence was closed on the request of Ld. APP vide order dated 07.09.2017 and matter was posted for recording of statement of accused U/s 313 Cr. P. C.
6. Statement of accused U/s 313 Cr. P. C. was recorded whereby all the incriminating evidence was put to him to which he denied all allegations and accused pleaded innocence and submits that police had taken his photographs and TIP proceedings were conducted thereafter.
7. I have heard the Addl. PP for the State and the counsel for the accused. The material on record has also been perused.
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8. The case of the prosecution hinged on the complaint given by the complainant Lt. Col. P. Guha, who was examined as PW4 has given the written complaint to SHO, PS Sector-9, Dwarka on dated 19.10.2011, whereas the incident was taken place on 18.10.2011. The complainant has not given his statement to the police on the same day. The complainant could have gone on the same day to make the complaint as he is educated man and nothing has stopped him to going to the police station. This is one of the fact which throws a doubt upon the story of the complainant. PW4 in his examination-in-chief has stated that "both the said persons were wearing helmets without wiser but their faces were clearly visible from the prevalent light at the spot". On the other hand, PW16, who is the IO of the present case has stated that there was a dark at the spot and the complainant himself had stated that accused persons were wearing helmets and the complainant could not see their faces. The statement of Sessions Case No. 441061/2016 State Vs. Satish & Anr. Page No. 14/18 the complainant and IO are contradictory to this effect. Complainant in his cross-examination also deposed that both the accused were not having wiser in their helmets and he had seen their faces but their faces were not completely visible and the whole incident took place within the duration of 1-1½ minutes. If it is so, it would be difficult to recognize the persons after one year, whom he had seen only for 1-1½ minutes. Whereas, PW5 Smt. Srimani Guha, wife of the complainant in her examination- in-chief has deposed she cannot recognize both the said persons as she was frightened and did not see them properly and was looking for the security of her children. The complainant himself had stated that he had kept on following the progress of the case from IO SI Ashok Kumar, so possibility of showing the photographs of the accused or the accused to the complainant prior to TIP cannot be ruled out specifically when PW-4 himself had stated in his cross-examination that both the accused have been wearing full mask helmets. So in these circumstances, he Sessions Case No. 441061/2016 State Vs. Satish & Anr. Page No. 15/18 could see the faces cannot be accepted and his identification in TIP cast shadow of doubt in the mode and manner of TIP proceedings. The identity of the accused is doubtful. Further more, the complainant has mostly stressed upon regarding the snatching of Identity card and in these circumstances, the plea of the accused that "the complainant has lost his I-card and its bring stigma for the colonel, if he cannot take care of I-card and then how he can take care of country" cannot be thrown away. So, something was required for him to justify his loss of I-card and that's why the accused had been falsely implicated. Now coming to the mode and manner of the commission of the Crime, there is contradiction in the statement of PW-4 and his wife PW5. PW4 has stated that the accused has forcibly had taken out his I-card which was kept in a self addressed pouch from the left pocket of shirt inspite of his repeated request not to take his I-card. He has also stated that one of the accused persons, who was armed took out my gold chain and given to another person. On Sessions Case No. 441061/2016 State Vs. Satish & Anr. Page No. 16/18 the other hand, PW5 has stated that at the first instance itself, her husband had given his gold chain and one pouch containing I-card, some cash and visiting cards alongwith the purse. PW4 has not stated anything qua purse. So, it is cristal clear that the lost of the I-card has been stressed upon but mode and manner of commission of crime qua I- card is different. Nothing has been recovered from the accused persons. The arrest have also been made on the basis of disclosure statement. There is nothing on the record connecting the accused with the arms allegedly used in the crime. There is no recovery of any arm. There was no reason for the accused to snatch the I-card. The role of qua accused, who has been discharged is also on the similar line. The IO has not taken the position of the wife of the complainant i.e. PW5 and the position of mobile of accused, if any, so that there presence can be established simultaneously. Motorcycle, chain, I-card and purse have also not been recovered. No eye witness have been examined regarding the incident. It has come in the Sessions Case No. 441061/2016 State Vs. Satish & Anr. Page No. 17/18 statement that the SPG Officers and Mahila Battalion Office are there but none of the inhabitants have been joined at least to proof the incident. There are two separate things were required to be proved in the present matter. Firstly, was the happening of the incident and secondly connectivity of the accused with the incident. But prosecution has miserably failed to proved both the things and doubt had been created regarding happening of such incident as well as involvement of the accused. So, benefit of doubt is required to be given to the accused. Accordingly, the accused Joginder @ Leela is acquitted of the charge. Bail bond in terms of Section 437A Cr.P.C. has been furnished on behalf of the accused in compliance of the direction of the Court. The same has been accepted and shall remain in force for a period of six months from today.
File be consigned to record room.
Pronounced in the open court. (AJAY GOEL) Dated: 25.10.2017 ASJ/Special Judge (NDPS) Dwarka Courts/New Delhi.
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