Delhi District Court
State vs 1. Krishan Pal @ Bharta, on 5 May, 2012
IN THE COURT OF SH. RAVINDER DUDEJA: ADDITIONAL SESSIONS JUDGE; (EAST) FTC : E COURT: KARKARDOOMA COURT: DELHI. SESSIONS CASE No. 60/10 FIR No. 111/09 U/S: 392/397/411/120-B/34 IPC & u/s 25/27 Arms Act. P.S: Madhu Vihar. State Versus 1. Krishan Pal @ Bharta, S/o Sh. Vijay Pal Singh, R/o Village Baoli, PS Baraut, District Baghpat, U.P. 2. Sanjeev Tomar, S/o Sh. Dharambir Singh, R/o Village Soop, PS Rambala, District Baghpat, U.P. Date of Institution : 06.05.2010 Date of Arguments : 28.04.2012 Date of Judgment : 05.05.2012 JUDGMENT
1. Prosecution case is that complainant Dinesh Kumar Sharma was working as Clerk at the office of PKSS Infrastructure Pvt. Ltd. The company had taken the contract for the collection of toll tax from commercial vehicles. The Zonal Office of the company was at house No. FIR No. 111/09 1 of page 17 130-A/596, Gazi Pur Village. On 02.12.2009 at about 6.35 am, three persons aged about 25-26 years came at the office, one of them put pistol on the complainant and second boy showed the pistol to Safai Karamchari Subhash. Complainant Dinesh Kumar Sharma and Subhash were made to sit in the corner of the room in the office with their heads down. In the meanwhile, driver Devi Charan came at the office. The third boy put knife at him and made him to sit with the complainant and Subhash. One of the boys asked the complainant to handover the key of almirah failing which, he threatened to shoot him. Complainant handed over the key of the almirah to that boy who then took out Rs. 19,23,145/- from the almirah and kept the same in a bag. They also took away some toll tax tickets and the mobile phones of complainant and Devi Charan. While leaving, they threatened them not to make noise otherwise they would kill them. They bolted the door from outside and fled away. On the statement of complainant, FIR was registered under Section 392/34 IPC. On 31.01.2010 on the basis of secret information, accused Krishan Pal @ Bharta was apprehended and from his possession, Rs. 50,000/- cash, pistol having six live rounds and stolen car were recovered. Accused Amit Malik @ Bhura was arrested in case FIR No. 23/10 PS Kalyan Puri and made disclosure with regard to the case. He was then arrested in the present case with the permission of the court. On the pointing out of accused Krishan Pal @ Bharta, a motorcycle which was purchased by him from the looted money, was recovered from his native village Bawli. On the pointing out of accused Amit Malik, a knife and Rs. 80,000/- were recovered from his flat No. 803, Aravali Apartments, Kaushambi. On 02.02.2010 on the pointing out of accused Krishan Pal @ Bharta and Amit Malik @ Bhura, co-accused Sanjeev Tomar was also arrested and Rs. 50,000/- were recovered from FIR No. 111/09 2 of page 17 his possession. TIP of accused Krishan Pal @ Bharta and Amit Malik was conducted. In their disclosures, accused also spoke about the involvement of Manoj son of Ranbir Singh but he could not be arrested and therefore charge sheet was filed under Section 392/397/411/120-B/34 IPC and under Section 25/27/54/59 Arms Act against accused Krishan Pal, Amit Malik and Sanjeev Tomar. Accused Manoj was arrested on 08.04.2010. In TIP, witnesses could not identify him. However, Rs. 11,500/- shown as part of looted money was recovered from his possession by Crime Branch. After receiving FSL result, sanction under Section 39 Arms Act was obtained and supplementary charge sheet was filed against accused Manoj. Sunil @ Bittoo surrendered before the court on 27.01.2011. His TIP was conducted. Supplementary charge sheet was filed against him under Section 392/397/120-B/34 IPC. Sunil @ Bittoo could not be identified in judicial TIP by the witnesses. He was therefore discharged by my learned predecessor vide order dated 14.07.2011.
2. After compliance of Section 207 Cr. PC, the case was committed to Sessions Court. Charge under Section 120-B IPC read with Section 397 IPC was framed against accused Amit Malik and Sanjeev Tomar, charge under Section 392 read with Section 397/34 IPC was framed against accused Amit Malik. Charge under Section 411 IPC was framed against accused Manoj and Sanjeev Tomar and charge under Section 411 IPC and under Section 25 Arms Act was framed against accused Krishan Pal @ Bharta. Accused persons pleaded not guilty.
3. In order to prove its case, prosecution examined 18 witnesses. PW-1 is Dinesh Kumar Sharma. He is the complainant. He proved his FIR No. 111/09 3 of page 17 written complaint Exbt. PW-1/A. PW-2 is Subhash, sweeper in the toll tax office, Gazi Pur. He deposed that on 02.12.2009 at about 6.45 am, he saw 2-3 boys standing on the road outside the office situated at the first floor. When he went upstairs to the office, 3-4 persons came there and one of them put katta on his temple and took him inside the office and put him beneath the table. Cashier Sharma Ji was already present beneath the table. Those persons then took the key of the almirah from cashier and threatened and abused him to handover the key otherwise they would shoot him. They then opened the almirah and looted the cash lying there. Then he got scared and was asked to keep his face towards ground and due to this reason, he could not seen the faces of those boys. He further deposed that while going away from there, those boys threatened them not to raise alarm otherwise they would shoot them. He stated that Devi Charan driver who was sent by Sharma Ji to buy milk, as soon as he reached, he was put beneath the table along with them by those boys. He further stated that the door of the room was bolted from outside. He called the public persons passing nearby his office and got the door opened. He deposed that police took him to Tihar Jail for the identification of accused but he could not identify any person in jail.
PW-3 is Devi Charan. He deposed that on 02.12.2009 after buying milk when he returned back to the office, one boy put a pointed object on his neck and put him beneath the table. Thereafter, that boy demanded his mobile which he handed over to him. Casher Dinesh Sharma and Subhash were already present there beneath the table. He FIR No. 111/09 4 of page 17 stated that the moment the pointed object was put on his neck, his eyes were closed and due to this reason, he could not see the face of that boy. He further deposed that Sharma Ji gave key to that boy and he took the cash from almirah and left the office after locking the door from outside.
PW-4 is Vishal Bajpai, Zonal Manager from M/s. PKSS Infrastructure Pvt. Ltd. He had handed over the copy of rent agreement of Gazi Pur Zonal Office, rent receipt, award copy, details of tickets, cash and list of employees etc to the police which were seized vide memo Exbt. PW- 4/A and Exbt. PW-4/B. PW-5 is Inspector Rakesh Kumar. He is the part IO. He had applied for the TIP of accused Amit Malik and Krishan Pal. He stated that on coming to know that accused Manoj has been arrested by HC Baljeet Singh in case FIR No. 31/10 under Arms Act and that he had made disclosure about this case, he obtained production warrants against him and formally arrested him in this case vide Exbt. PW-5/A. While in custody, accused Manoj gave disclosure statement Exbt. PW-5/B. His TIP was also conducted. During investigation, he collected FSL result Exbt. PW-5/C and obtained sanction under Section 39 Arms Act and filed supplementary charge sheet against accused Manoj.
PW-6 is ASI Baljeet Singh from Crime Branch. He arrested accused Manoj in case FIR No. 31/10 PS Crime Barnch and recovered a Honda City car from his possession. On the search of the car, cash of Rs. 11,500/- was recovered from dash board which was seized vide memo Exbt. PW-6/A. Disclosure statement of accused Manoj was recorded which FIR No. 111/09 5 of page 17 is Exbt. PW-6/B. PW-7 is Constable Raj Kumar and PW-15 is ASI Balraj. On 02.12.2009, on receipt of DD No. 7-A Exbt. PW-8/A, they went at the spot at house No. 130-A, Village Gazi Pur where ASI Balraj Singh recorded the statement of complainant Dinesh Kumar and prepared rukka Exbt. PW- 15/A which was sent to police station through Constable Rajbir for the registration of the FIR.
PW-8 is SI Arjun, Duty Officer. He had recorded DD No. 7-A which is Exbt. PW-8/A. PW-9 is HC Subhash and PW-12 is HC Deepak Panwar. He deposed that on 31.01.2010, he along with SI Abhay Narain Yadav, Constable Sanjay and Constable Deepak reached at Maharaj Pur check post in connection with the investigation of this case. IO briefed them that a Swift car bearing No. UP-14-AN-2283 of white colour shall come from the side of Dilshad Garden and accused can be apprehended from the said car. They did barricading and at about 6.00 am, a white Swift car bearing above mentioned number came from the side of Dilshad Garden. IO gave signal to stop it. Barricades were put to stop the car. The driver of the car stopped the car and got out of it and ran away. Accused Krishan Pal @ Bharta was apprehended by the police. On his search, Rs. 50,000/- in the denomination of Rs. 100/- were recovered from the pocket of his jacket. From the left pocket of his pant, a country made pistol was recovered and six live cartridges were recovered from the right pocket of his pant. On interrogation, accused Krishan Pal @ Bharta gave disclosure statement FIR No. 111/09 6 of page 17 Exbt. PW-9/A. Sketch of pistol and cartridges were prepared. They were then put in a pullanda which was sealed with the seal of ANY and seized vide memo Exbt. PW-9/B. Accused Krishan Pal @ Bharta was arrested. The currency notes were also kept in a pullanda and they were also sealed with the seal of ANY and seized vide memo Exbt. PW-9/E. The car was seized vide memo Mark PW-9/A1. He further deposed that same day, IO came to know that Amit Malik, another accused in this case was being produced in court in a case of PS Kalyan Puri. He along with IO came to the court and with the permission of the court, arrested him. On interrogation, Amit Malik gave disclosure statement Exbt. PW-9/G. He stated that on 01.02.2010, he along with IO, other staff and accused Krishan Pal and Amit reached at Baghpat where IO made enquiry from Jain Auto Traders about the purchase of motorcycle and seized documents Exbt. PW-9/P1 and Exbt. PW-9/P2 vide memo Exbt. PW-9/H. Thereafter, they seized the motorcycle without number plate which was found parked outside the house of accused Krishan Pal @ Bharta at Village Bawli vide memo Exbt. PW-9/I which the accused disclosed to have purchased from the robbed amount. The documents of the motorcycle were seized vide memo Exbt. PW-9/J. Thereafter, from the house of accused Amit at Aravali Apartments, flat No. 803, Vasundhara, Rs. 80,000/- were recovered from the bed in the room of accused Amit at his instance which were seized vide memo Exbt. PW-9/C. Accused Amit had also got recovered a knife from the same bed. Sketch of the knife was prepared which is Exbt. PW-9/L. The knife was kept in a pullanda which was sealed with the seal of ANY and the same was seized vide memo Exbt. PW-9/M. Next day i.e. on 02.02.2010, at the instance of accused Krishan Pal and Amit, accused Sanjeev Tomar was arrested from his house No. B-150, Meet Nagar. On FIR No. 111/09 7 of page 17 interrogation, accused Sanjeev Tomar gave disclosure statement Exbt. PW-9/P and got recovered Rs. 50,000/- in the denomination of Rs. 1000/-, Rs. 500/- and Rs. 100/- which were kept on the bed under the pillow. The currency notes were kept in a pullanda and sealed with the seal of ANY and seized vide memo Exbt. PW-9/Q. PW-10 is SI Satender Khari. He had arrested accused Amit Malik (PO) in case FIR No. 23/10 and recorded his disclosure statement and thereafter passed the information to the concerned IO.
PW-11 is HC Singh Raj, the then MHCM. He proved the relevant entries of Register No. 19 which are Exbt. PW-11/A to Exbt. PW-11/D. He also proved the copy of RC as Exbt. PW-11/E. PW-12 is HC Deepak Panwar. He is also the witness of investigation. He is the witness of arrest of accused Krishan Pal @ Bharta and the recovery of Rs. 50,000/-, pistol and six rounds from his possession.
PW-13 is HC Ram Naresh, Duty Officer. He proved DD No. 6-A and DD No. 7-A as Exbt. PW-13/A and Exbt. PW-13/B respectively.
PW-14 is SI Abhay Narain Yadav. He is the IO of this case. He had prepared the site plan Exbt. PW-14/A on the pointing out of the complainant. On 31.01.2010 on the basis of secret information, he arrested accused Krishan Pal @ Bharta and recovered Rs. 50,000/-, a desi katta and six live rounds from his possession. The Swift car in which he was travelling, was also seized under Section 102 Cr. PC. He had arrested FIR No. 111/09 8 of page 17 accused Amit Malik @ Bhura with the permission of the court and also recovered a motorcycle at the instance of accused Krishan Pal. He had recovered Rs. 80,000/- at the instance of accused Amit Malik @ Bhura on 02.02.2010. He arrested accused Sanjeev Tomar at the instance of accused Krishan Pal and Amit and recovered Rs. 50,000/- from a pillow lying on the cot in his room at the instance of accused Sanjeev Tomar. PW- 14 was declared hostile and was cross examined by the learned APP wherein he admitted that accused were kept in muffled face till the time they remained in his custody.
PW-15 is ASI Balraj Singh. He is the first IO. He had recorded the statement of complainant Dinesh Kumar and prepared the rukka Exbt. Pw- 15/A and sent the same at police station through Constable Rajbir for the registration of the FIR.
PW-16 is Constable Anil Kumar. He had deposited the pullandas at FSL.
PW-17 Constable Sanjay was dropped by learned APP being repetitive witness.
PW-18 is Ms. I.B. Rani, the then Additional DCP, East District. She had accorded the sanction under Section 39 Arms Act for prosecution of accused Krishan Pal and the same is Exbt. PW-18/A.
4. Accused Amit and Manoj were declared Proclaimed Offenders vide order dated 01.03.2011 passed by my learned predecessor. Statements of FIR No. 111/09 9 of page 17 accused Krishan Pal @ Bharta and Sanjeev Tomar were recorded under Section 313 Cr. PC wherein they stated that they were innocent and were falsely implicated. In their defence, they examined DW-1 Raj Karan who deposed that accused Krishan Pal was his nephew and that accused Krishan pal came to Delhi on 29.01.2010 to deposit the fees of his younger brother Anil but was picked up by the police from Barauth, U.P. he therefore made complaint by telegram to DGP, UP at Lucknow, made telegram to Police Commissioner, Delhi, Hon'ble Chief Justice of India and Chairman NHRC and the copies of the telegrams are mark D-1 to D-4. He deposed that police demanded Rs. 2 lakhs from him for the release of accused. According to him, the motorcycle was purchased by Krishan Pal out of the sale proceeds of land.
DW-2 is Gaurav. He deposed that on account of marriage in the family, he withdrew Rs. 1 lakh from Syndicate Bank and that accused Sanjeev is the son of his uncle. He stated that on 01.02.2010, 4-5 persons in civil dress came at the house of his elder brother at Meet Nagar and took Sanjeev with them saying that he was to be interrogated in connection with an accident case. After 3-4 hours when accused did not return, they went to police station and made enquiry and came to know that accused Sanjeev had been involved in a robbery case. He further deposed that Rs. 50,000/- out of Rs. 1,00,000/- withdrawn from the bank were with accused Sanjeev and that police did not return Rs. 50,000/-. He produced the copy of the bank statement Mark D-6.
DW-3 is Anil, brother of accused Krishan Pal. He deposed that in the month of December and January, accused Krishan Pal was to bring money FIR No. 111/09 10 of page 17 for his fees and other expenses but did not reach and later on enquiry, he came to know from his family that accused Krishan Pal had been picked up by the police and falsely implicated. He produced the photocopies of the fee receipts of Jamia Hamdard University which are Mark D-8 to D-10.
5. Arguments have been heard from Mohd. Iqrar, learned APP for the State and Sh. Rajesh Kumar, advocate for the accused. The learned defence counsel has argued that accused have not been identified by any of the witnesses and there is no identification of allegedly recovered currency notes. It is further submitted that against accused Sanjeev Tomar, there is no evidence of criminal conspiracy and the alleged recovery of country made pistol and cartridges from the possession of accused Krishan Pal @ Bharta is also doubtful as there is no public witness of recovery. The learned APP, on the other hand, has argued that there is a huge recovery of cash from accused persons and police could not have planted the same.
6. I have considered the submissions made by the learned APP and the learned defence counsel. In his testimony as PW-1, PW Dinesh Kumar Sharma deposed that 2-3 boys came at his office and pushed him and sweeper beneath the table in the room. One of the boys put katta on his head. Driver, Devi Charan who had gone to buy milk, also reached there and he was also brought in the room and made to sit on one side along with them. The boy who had put the gun on him, asked him to handover the key of the almirah wherein the cash was lying and threatened to shoot him otherwise. He got scared and handed over the key of the almirah containing Rs. 19,35,145/- to him. One of the boys picked up the bag lying FIR No. 111/09 11 of page 17 there in the room and put the cash in it. They then threatened him not to raise alarm otherwise they would come back and shoot him. While leaving, those boys bolted the room from outside and went away. He deposed that he cannot identify those boys as he had got scared when this incident happened. Even after seeing the accused, he was unable to identify them. PW-1 was declared hostile and was cross examined by the learned APP. In the said cross examination, he admitted that accused Sanjeev Tomar was working as a booth operator at Gazi Pur Toll Tax Booth on 02.11.2009. He admitted having told to the police that those assailants had also taken away his mobile phone and that of Devi Charan.
7. On an analysis of the testimonies of eye witnesses namely Subhash (PW-2) and Devi Charan (PW-3), it is found that neither of the two could identify either of the two accused. PW-1 failed to identify accused Krishan Pal @ Bharta. Though he identified accused Sanjeev Tomar, but not as an assailant. Even as per prosecution version, accused Sanjeev Tomar was not amongst the assailants who committed the robbery. The name of accused Sanjeev Tomar figured in the disclosure statements of co-accused Krishan Pal and Amit on the basis of which he was apprehended. As per allegations, he had passed on the information to co-accused/assailants who committed robbery. Charge against him is under Section 411 and under Section 120-B IPC. The offence of criminal conspiracy consists in a meeting of minds of two or more persons for agreeing to do or causing it to be done a criminal act or an act by illegal means, and the performance of an act in terms thereof. In pursuance to the criminal conspiracy if the conspirators committed several offences, then all of them will be liable for the offences even if some of them had not actively participated in the FIR No. 111/09 12 of page 17 commission of the offences. For proving conspiracy, direct proof is difficult to obtain but it can be proved by the facts of the case and surrounding circumstances. In the present case except the disclosure statement given before the police, which is inadmissible in evidence, there is no other evidence to prove conspiracy against accused Sanjeev Tomar. Prosecution is trying to rely on the recovery of Rs. 50,000/- from the possession of accused Sanjeev Tomar which is claimed to be the robbed cash amount. In his statement under Section 313 Cr. PC, accused Sanjeev Tomar does not dispute the recovery of Rs. 50,000/- from his possession but states that the said money was withdrawn from the bank by his cousin Amit for the marriage of his cousin sister and that on the day of arrest, he along with his cousin Gaurav had gone to market for purchase of some items for the marriage but police apprehended him and planted cash amount of Rs. 50,000/- which he was carrying with him.
8. There is no identification of the looted cash. The details of Rs. 19,35,145/- is not given in the complaint or in evidence in court by the complainant. There is no evidence that there was any identification mark on the looted currency notes or that their numbers were noted or given to the police after robbery. Thus, there is no evidence that Rs. 50,000/- allegedly recovered from accused Sanjeev Tomar were part of the looted cash. Hence, prosecution has failed to prove charge of conspiracy as also under Section 411 IPC against accused Sanjeev Tomar.
9. So far as accused Krishan Pal @ Bharta is concerned, he has been charged under Section 411 IPC and under Section 25 Arms Act. As per allegations, Rs. 50,000/- out of looted cash were recovered from his FIR No. 111/09 13 of page 17 possession and a motorcycle was also recovered from him which he had purchased from the looted cash. In his statement under Section 313 Cr. PC, accused took the defence that Rs. 50,000/- belonged to him and that police had lifted him while he was going to Barauth from his village with Rs. 50,000/- for depositing the fee of his younger brother Anil who was studying at Jamia Hamdard and then planted the money on him. As already discussed, there is no identification of the currency notes, there being no identification mark and therefore it is not proved that Rs. 50,000/- recovered from accused Krishan Pal is the part of the looted amount. Similarly, there is no evidence whatsoever that accused Krishan Pal had purchased the motorcycle from the looted amount. Thus, prosecution has failed to prove the charge under Section 411 IPC against accused Krishan Pal @ Bharta.
10. Prosecution is relying on the testimonies of PW-9 HC Subhash, PW- 12 HC Deepak Panwar and PW-14 SI Abhay Narain Yadav to prove the recovery of country made pistol and six live cartridges from his possession. The learned APP has argued that there is no reason to disbelieve the testimonies of the aforesaid three police witnesses who have duly proved the recovery of country made pistol and cartridges from the possession of accused Krishan Pal @ Bharta.
11. If the testimonies of aforesaid three police witnesses is to be believed, PW-14 had received a secret information at about 4.00 - 4.30 am that accused Krishan Pal @ Bharta wanted in the present case would go towards Gazi Pur from the side of Dilshad Garden via Maharaj Pur check FIR No. 111/09 14 of page 17 post in a white colour Swift car. On this information, PW-14 organized a raiding party and reached at Maharaj Pur check post at 5.00 am and started watching the vehicles coming from the side of Dilshad Garden and that at about 6.00 am, a white colour Swift car came from the side of Dilshad Garden which was given signal to stop. The driver came out of the car and ran away but accused Krishan Pal @ Bharta was overpowered and Rs. 50,000/-, a desi katta and six live rounds were recovered from his possession. Thus, from the testimonies of the witnesses, it is clear that the information was received at about 4.00 - 4.30 am and accused Krishan Pal was apprehended at 6.00 am. There was enough time in between to join the public witnesses in the raiding party. In cross examination, PW-9, PW- 12 and PW-14 took contradictory stand on the question as to whether the public persons were requested to join the raiding party. PW-9 and PW-12 stated that IO had requested 2-3 public persons to join the investigation but they refused expressing their inability but PW-14 stated that he did not request any public person to join the raiding party. IO did not assign any reason why he did not join any public person in the raiding party. The case would have been different if no public person was present or available. In the case of State of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, the Hon'ble Supreme Court held:
"The failure of the prosecution to examine independent witnesses though available is fatal for their case."
In the case titled State of Punjab Vs. Gurdyal Singh 1992 (1) RCR (DB) 646, Roop Chand Vs. State of Haryana 1989 (2) RCR 504 and State of Punjab Vs. Sukhdev Singh 1992 (3) RCR 311, it was held by the Hon'ble Court that:
FIR No. 111/09 15 of page 17 "Where the IO has failed to even note down the names and addresses of the persons, who have refused to join as public witnesses, coupled with the fact that no action was taken against them, the case is rendered doubtful."
12. Statutory desirability in the matter of search and seizure is that there should be support from unbiased and neutral corner. The search before an independent witness imparts much more authenticity and creditworthiness to the search and seizure proceedings. Such safeguard is intended to avoid criticism of arbitrary and highhanded action against police officers. This is to lend credibility to the procedure relating to search and seizure. In the present case, the explanation for not associating independent witnesses is not satisfactory more so when they were available right at the elbow.
13. The relevant entries regarding the arrival and departure of the police officials have also not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 that:
"wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
FIR No. 111/09 16 of page 17
14. Hence, in view of my aforesaid discussion, I am of the opinion that prosecution has failed to prove its case against both the accused i.e. Krishan Pal Bharta and Sanjeev Tomar. Both the accused are therefore acquitted. Their bail bonds are cancelled. Sureties are discharged. Documents of sureties if any be released after cancellation of endorsement. However, they are directed to furnish personal bond in the sum of Rs. 10,000/- with surety of the like amount each under Section 437- A Cr. PC for the period of six months. On furnishing the bonds, file be consigned to Record Room with directions to preserve the case file as accused Amit Malik and Manoj are P.Os and liberty is granted to the prosecution to get the case revived on their arrest.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE:FTC/E-COURT/KKD/DELHI. ANNOUNCED IN THE OPEN COURT ON 05.05.2012.
FIR No. 111/09 17 of page 17