Delhi District Court
State vs . Sonu Chaudhary Etc. 16/14 Page 1 Of 35 on 2 December, 2014
IN THE COURT OF MR. UMED SINGH GREWAL,
ASJ/SPECIAL JUDGE (NDPS)
NORTH DISTRICT: ROHINI COURTS:DELHI
SC No.165/2014
FIR No.16/14
PS Mahendra Park
U/s 365,394,397,483/34 IPC
State
Versus
1. Sonu Chaudhary @ Sahil
S/o Omkar Singh
r/o Village Khutipuri PS Mursan
District Hathrash (UP).
2. Sonu @ AT s/o Jai Prakash
r/o H. No.2122, Gali no.1, Dindayal puri
Ghaziabad, (UP).
3. Jitender @ Jeetu s/o Satish Kumar
r/o D136 Bhagwati Vihar, Uttam Nagar,
Delhi.
DATE OF INSTITUTION : 04062014
RESERVED FOR JUDGMENT : 29112014
DATE OF JUDGMENT : 02122014
Appearances: Mr. J.S. Malik, APP for the State.
Ms.Sunita Tiwari, Amicus Curiae for all accused.
JUDGEMENT
1. All three accused have been forwarded by police to face State vs. Sonu Chaudhary etc. 16/14 page 1 of 35 trial u/s 365,394,397,482/34 IPC and 25 Arms Act
2. Facts are that complainant Ashish Bansal is running a tour and travel agency. On 06012014, he was bringing his out of order vehicle no.DL1VA9661 from Dadri, UP toeing it with another vehicle no.DL1VA9122 to workshop situated in village Alipur Delhi. Om Prakash and Kapil were sitting in the driver seats of both vehicles and he was also following them in his white Verna car no. DL10CD7534. They had crossed Mukarba Chowk fly over at 10.45 PM and were proceeding towards Alipur when the tochen broke down. He stopped his Verna car slightly ahead of vehicles and kept on sitting in the car. A silver colour ETIOS bearing registration no.HR26..... came and stopped in front of his car and two boys alighted from it and they asked him the way for Panipat. Both boys showed him pistols and forcibly made him to sit on the rear seat of his car. In the meantime their third associate also came there and he sat in the driver seat. When he was being made to sit in the rear seat, his driver Kapil came there for inquiry but he was also shown pistol by the accused. The accused took him towards Alipur and from Alipur, they came on the left side of the outer ring road towards Peera Garhi. His Samsung Grand and Reliance mobile phones were snatched. The two accused who were sitting on the rear seat with him, snatched Rs.8000/. The accused took him to Khaibar Pass petrol pump via Buari and Timarpur while beating. Accused got filled diesel of Rs.1000/ in Verna car and he was left on the red light State vs. Sonu Chaudhary etc. 16/14 page 2 of 35 and accused proceeded away. The fourth accomplice of the accused was following them in ETIOS No. HR26..... He claimed that he can identify all the accused if brought before him. He told the description of the boy sitting on his right side as a strongly built boy of white complexion. The boy sitting on his left side was of black complexion and the boy who was in driver seat was tall one. They were of 2530 years.
Car of the complainant was recovered by Sonepat Police in deserted condition. The accused were arrested and they refused to participate in TIP. They were identified by the complainant and other witness in the police custody. The accused made disclosure statements and led police party to a parking slot in Sonepat from where police took into possession the register in which entries of parked vehicles were made.
3. Charge u/s 365,392,394 against all accused, and u/s 397 IPC against accused Sonu Chaudhary and Jitender @ Jeetu was framed on 05092014 to which they claimed trial.
4. In order to establish the charge, prosecution examined 22 witnesses. Accused did not examine a single witness in defence.
5. PW21 Ct. Ghanshyam had filled up PCR form Ex.PW21/A on 06012014 at 11.17 PM on receipt of call from mobile phone no.9312213336 to the effect, " 45 badmash jinke paas bandook thi, hume bandook dikhakar mere ladke or meri gadi no.DL4735 Verna white colour ki gaddi ke sath Karnal ki taraf gaye hai".
State vs. Sonu Chaudhary etc. 16/14 page 3 of 35 PW16 lady Ct. Sushila was posted in PCR Headquarter on 06 012014 when she received information at 11.27 PM from mobile phone no.9312212226 to the effect "45 badmash jinke paas bandook thi, hume bandook dikhakar mere ladke or meri gadi no.DL4735 Verna white colour ki gaddi ke sath Karnal ki taraf gaye hai". She filled PCR form Ex.PW16/A and forwarded the information to PS Alipur.
PW19 SI Rattan Kumar deposed that on receipt of DD No.42 A Ex.PW5/D on 06012014 at 11.55 PM, he alongwith Ct. Virender reached on the road leading towards Karnal from Mukarba chowk fly over and a person namely Om Prakash met them. Two vehicles bearing registration no.DL1VA9661 and DL1VA9122 were found there in toed condition. On inquiry, Om Prakash told them that three persons had abducted his employer Ashish Bansal with Verna car and that Ashish Bansal was returning to the spot. He further deposed that Ashish and his father Rajiv Bansal came to the spot at 1.00 AM and he recorded statement Ex.PW1/A of Ashish Bansal, prepared rukka Ex.PW19/A and sent Ct. Virender to PS who got the case FIR registered. Ct. Virender returned to the spot and handed him over copy of FIR and original rukka. He prepared rough site plan Ex.PW1/B at the instance of complainant. In the meantime, Kapil, another driver of the complainant, also reached there. Thereafter complainant led the police party to Narain Service station, Khaibar Pass, Mall Road and pointed out the petrol pump where the State vs. Sonu Chaudhary etc. 16/14 page 4 of 35 accused persons had got refilled the diesel in Verna car. He also showed them a place near red light just ahead of the petrol pump where the accused had left him. The robbed mobile phone of the complainant were put on surveillance. He further deposed that Rajiv Bansal told him on 15012014 that looted Verna car no.DL10CD7534 had been found in Sonepat and on this information, DD No.26 A Ex.PW19/B was registered. He and Ct. Virender alongwith complainant Ashish Bansal went to PS Sadar Sonepat on 16012014 and met MHC(M) ASI Naresh and thereafter checked the car and it was identified by the complainant as the robbed car. At that time, it was bearing fake number plate no.DL10CE1579 but it was bearing the engine and chassis number on the strength of which original registration no.DL10CD7534 was given to it by transport authority. The fake number plates were removed and car and plates were seized vide seizure memo Ex.PW1/C and thereafter it was brought to PS Mahendra Park with the help of crane as it was not drivable condition.
PW7 Ct. Virender Singh supported PW19 by deposing that he had accompanied him to the spot and had also got registered FIR on the rukka prepared by PW19.
PW5 ASI Babu Khan registered case FIR Ex.PW5/A on receipt of rukka on 07012014 at 2.30 AM brought by Ct. Virender sent by SI Rattan Kumar. He also proved DD No.42 A dated 06012014 timed at 11.55 PM as Ex.PW5/D. State vs. Sonu Chaudhary etc. 16/14 page 5 of 35
6. PW13 Ramesh Kumar is the owner of house taken by accused Sonu Chaudhary and Sonu @ AT on rent in December, 2013 at a monthly rent of Rs.4800/. That house is located in Pethe wali Gali, Tara Nagar, Sonepat. He deposed that a lady also used to reside with them. The accused were maintaining an ETIOS car No.HR263822. He further deposed that he was called in PS Mahendra Park by Delhi police on 200214 and he had identified accused Sonu Chaudhary and Sonu @ AT there as the same persons who used to reside in his house on rent.
PW14 Yogender was running a parking slot near the bus stand Sonepat and his cousin Parmod PW15 used to assist him. He deposed that some police officials from PS Mahendra Park came to parking on 190214 alongwith three persons. One person came out of the vehicle and pointed out a spot of parking slot where he had parked a vehicle. He further deposed that he handed over parking entry register to the police which was seized vide memo Ex.PW12/I bearing his signature at point B. He further deposed that the accused who had pointed out a slot in the parking had parked a Verna car of the registration number mentioned in register Ex.P4 and after going through the register, he told the registration number as DL7534. He further deposed that at the time of parking of the car on 080114, the accused had told his name as Sahil and the same name was written in register Ex.P4. The car was again parked there on 1101 14 by the accused with registration no.DL10CE1569 and entry State vs. Sonu Chaudhary etc. 16/14 page 6 of 35 Ex.P4B to that effect was made in register. Pointing out memo Ex.PW12/H bears his signature at point B. He identified the accused Sonu @ AT as the person who had parked that car and had pointed out that place on 190214. He was declared hostile on the identity of the accused and he denied the suggestion that it was accused Sonu Chaudhary who had parked the Verna car in the parking and that the place was also pointed out by him to the police.
PW15 Parmod supported PW14 by deposing that he used to assist his cousin and that it was he who had made entry Ex.P4A and Ex.P4B in register Ex.P4. The vehicle was parked by the accused in parking on 080114 and 110114.
PW20 ASI Naresh Kumar was posted in PS City Sonepat on 16 0114 when information was received by ASI Balwan Singh of PP Kot Mohalla that one Verna car of white colour having number plate as DL10CE1579 was lying in abandoned condition at Jahri road near Railway crossing, Sugar Mill, Sonepat. ASI Balwan reached that spot and seized the car u/s 47 Police Act and deposited the same in malkhana. At that it was in damaged condition as its screens were broken and left tyre was dysfunctional. The information and seizure of the car were reduced into writing and entry was made in roznamcha vide entry no.14 dated 160114 Ex.PW20/A. He proved the register no.19 also vide which Verna car was deposited in the malkhana by ASI Balwan as Ex.PW20/B. He further deposed that the said car was handed over to SI Rattan Kumar of PS Mahendra State vs. Sonu Chaudhary etc. 16/14 page 7 of 35 Park on 160114 vide RC No.5 dt. 160114 Ex.PW20/C. Seizure memo of the car prepared by ASI Balwan is Ex.PW20/D. PW8 Ct. Virender Kumar deposed that he had accompanied SI Rattan Kumar and complainant Ashish Bansal to PS City Sonepat where Ashish had identified his Verna car. Fake number plate and Verna were seized vide seizure memo Ex.PW1/C by SI Rattan Kumar and was brought to the PS Mahendra Park. He identified the car as Ex.P1. It was deposited in malkhana.
PW17 Sunil deposed that on 160114, on the instructions of a police official of Mahendra Park, he had toed Verna car bearing number plates as 1579 from Sonepat to PS Mahendra Park and had charged Rs.3500/.
PW10 HC Ashok was working as MHC(M) in PS Mahendra Park when white Verna car no.DL110CE1579 was deposited in malkhana by SI Rattan Kumar and he made entry no.693 Ex.PW10/A in register no.19. The car was released on superdari to its owner Ashish Bansal on 22012014 as per the orders of Ms. Shunali Gupta, ld. ACMM, Rohini courts.
7. PW22 SI Anuj Nautiyal is the first IO of case FIR No.12/14 PS Crime Branch in which all three accused were first apprehended. He deposed that on 080214, HC Azad produced a secret informer before him in office who gave tip off that some miscreants involved in the highway road robbery will come near Splash water park, Alipur on that day at about 3.304.00 PM in a State vs. Sonu Chaudhary etc. 16/14 page 8 of 35 looted car with fake number plate. A raiding team including himself, HC Azad, HC Lakhvinder, HC Sandeep, Ct. Kavinder, Ct. Ravinder and Ct. Himanshu was formed. An ETIOS car was seen coming from the side of Narela at 3.45 PM and was heading towards Mukarba Chowk. The driver stopped the car near a person who was standing at distance of about 100 meters ahead of the red light. The informer signaled towards the miscreants who were involved in the highway robbery. The official gypsy was brought in front of ETIOS car and four persons were apprehended. At that time, ETIOS car was bearing number plate no.HR26Z3822. The person in the driver seat disclosed his name as Sonu Chaudhary and he was found in possession of a pistol loaded with five live cartridges. The person sitting on the rear seat behind driver seat disclosed his identity as accused Sonu @ AT and he was carrying a pistol loaded with five live cartridges. The other occupants were Rajesh @ Bittoo and accused Jitender @ Jeetu but nothing incriminating article was recovered from their possession. On checking of the chassis number of the car and verification, it was found robbed from the area of PS Dwarka South for which an FIR number 420/13 was already in existence. The ETIOS car was seized vide seizure memo Ex.PW9/N. Sketches of the pistols and cartridges recovered from accused Sonu Chaudhary and Sonu @ AT were prepared and the same are Ex.PW22/A and Ex.PW22/B respectively. The weapons were seized vide memos Ex.PW22/C and Ex.PW22/D. He further deposed that he prepared State vs. Sonu Chaudhary etc. 16/14 page 9 of 35 rukka Ex.PW22/E and sent Ct.Ravinder to PS who got the FIR no.12/14 Ex.PW22/E registered u/s 411,482/24 IPC and 25 Arms Act.
PW9 SI Sanjay Dahiya is second IO of FIR No.12/14. He deposed that further investigation of that FIR was assigned to him and so he reached the spot i.e. GT road in front of Splash Water park, village Alipur where SI Anuj Nautiyal alongwith other police officials was already present there. SI Anuj Nautiyal handed him over accused Sonu Chaudhary, Sonu @ AT, Jitender @ Jeetu and Rajesh @ Bittoo with the case property recovered from their possession. ETIOS car was also handed over to him. He prepared rough site plan at the instance of first IO and arrested the accused and wrote their disclosure statements vide documents Ex.PW9/A, Ex.PW9/B, Ex.PW9/C, Ex.PW9/D, Ex.PW9/E, Ex.PW9/F, Ex.PW9/G, Ex.PW9/H, Ex.PW9/J, Ex.PW9/K and Ex.PW9/M respectively. He further deposed that actual registration number of ETIOS car Ex.P3 is DL 10C7844. During trial, the car was produced by Mr. Kamal Rohilla, an employee of United Insurance India Co. Ltd. Karampura Branch to whom it was released on superdari.
PW18 HC Jagnarain MHC(M) deposed that on 080214, SI Sanjay Kumar deposited with him two pullandas marks 1 and 2 and having seals of AN alongwith FSL form having same seal impressions. At the same time, SI had deposited a silver colour ETIOS car having chassis no.MBJB2ZBTX00027861 in FIR No.12/14 PS Crimebranch State vs. Sonu Chaudhary etc. 16/14 page 10 of 35 and he made entry No.1894 Ex.PW18/A in register no.19. Personal search articles were also deposited by SI Sanjay Kumar. ETIOS car no.DL7CD7844 was sent to PS Dwarka South on 120314 through Ct. Samay Sigh vide RC No.74/21 Ex.PW18/C.
8. PW19 SI Rattan Kumar deposed that he received information from crime branch on 090214 that accused persons Sonu Chaudhary, Sonu @ AT and Jitender @ Jeetu had been arrested and that they had made disclosure statement regarding their complicity in the present case. Information was reduced into writing in the form of DD No.29 B Ex.PW19/C. On 100214 he collected copies of disclosure statements and arrest documents of the accused from PS Crime branch. Thereafter, he moved an application for issuance of their production warrants and in pursuance the accused persons were produced in the court of ld. ACMM on 150214 in muffled faces. He moved an application Ex.PW19/E for interrogation of the accused and after permission, he arrested the accused and recorded their disclosure statements vide documents Ex.PW11/A, Ex.PW11/B, Ex.PW11/C, Ex.PW11/D, Ex.PW11/E, Ex.PW11/F, Ex.PW11/G, Ex.PW11/H and Ex.PW11/I. Then he moved application Ex.PW19/F for it. The accused were produced before ld. MM on 180214 for TIP but they refused to participate in TIP. He again interrogated the accused on 190214 and recorded their disclosure statements Ex.PW12/A, Ex.PW12/B and Ex.PW12/C respectively. Thereafter accused persons led the police party to the State vs. Sonu Chaudhary etc. 16/14 page 11 of 35 place of occurrence and pointed out that place and in this way pointing out memo Ex.PW12/D, Ex.PW12/E and Ex.PW12/F were prepared.
IO further deposed that accused persons led the police party to Jahri road near Railway crossing, Sugar mill, Sonepat and accused Sonu Chaudhary pointed out a spot stating that he had left the looted Verna car there after 45 days of the incident. Pointing out memo Ex.PW12/G was prepared. Thereafter accused persons led police party to the parking area of bus stand Sonepat and accused Sonu Chaudhary pointed out a slot where he had parked the robbed Verna car on two occasions and in this way pointing out memo Ex.PW12/H was prepared. He further deposed that he took into possession the parking entry register from the attendants Parmod and Yogender. On checking the register, he found that Verna car bearing no.DL7534 was parked in that slot on 080114 by a person namely Sahil. He further perused the register and came to know that on 110114, the same car with registration no.DL10CE1569 was again parked on 110114 and this time also the name of person was mentioned as Sahil. He seized the register vide seizure memo Ex.PW12/I. He further deposed that accused persons led them to H. No.605/18, Pethe Wali gali, Tara Nagar, Sonepat stating that after looting Verna car, they had stayed in that house. Pointing out memos Ex.PW12/J, Ex.PW12/K and Ex.PW12/L were prepared. Thereafter accused persons led the police party to Narain Service State vs. Sonu Chaudhary etc. 16/14 page 12 of 35 station, Khaibar Pass and pointed out the petrol pump where they had refilled the robbed Verna car. They had also pointed out a place near red light just ahead of the petrol pump where they had left the complainant and in this way pointing out memos Ex.PW12/M, Ex.PW12/N and Ex.PW12/O were prepared. The accused were brought to PS where they identified by complainant Ashish Bansal and drivers Om Prakash and Kapil.
PW11 Ct. Krishan was with PW19 at the time of arrest of all there accused from Rohini court complex on 150214.
PW12 HC Anil Kumar had participated in the investigation with IO PW19 on 190214 at the time of writing of their disclosure statements, pointing out of places of robbery and parking of car in Sonepat and also at the time of seizure of parking register.
9. PW6 Ankush Bansal is the owner of the robber car. After seizure, he got the same released on supardari and he identified the car as Ex.P1.
PW2 Rajiv Bansal is father of PW1 and PW6. He deposed that on 060114 at 11.0011.30 PM, he received information from his driver Kapil on phone that his son Ashish Bansal had been abducted with Verna car and that he was taken towards Alipur. He intimated the incident to police using his mobile phone no.9312212226. He received information after one hour that the accused had left his son near Khaibar Pass, Civil Lines, Delhi. He immediately reached there and met Ashish. Police officials were also State vs. Sonu Chaudhary etc. 16/14 page 13 of 35 present there. Thereafter all returned to the place of abduction. He received information from ASI Balwan on 151114 that Verna car had been found in deserted condition in Sonepat.
PW1 Ashish Bansal is the complainant. He deposed that he and his family members are engaged in the tours and travels in the name and style of Bansal Travel Corporation. On 060114, he was bringing his dysfunctional tempo traveller no.DL1VA9661 by toeing it with another tempo traveller no.DLIVA9122 from Dadri UP. Both vehicles were to go to workshop situated in village Alipur and Om Prakash and Kapil were in driver seats. He further deposed that he was following both tempo travellers in Verna car no.DL10CD7534. They had almost crossed Mukarba chowk fly over towards village Alipur at 10.3010.45 PM when the tochen disconnected. He drove his car ahead of the temp travellers. The drivers were repairing the tochen. At that moment of time, a silver colour ETIOS car bearing registration no.HR26.... stopped there. He could not see the complete registration number. Two persons came out of ETIOS car and inquired the way to Panipat. Suddenly both boys pointed out pistols towards him and directed him to sit on the rear seat of his own car. In the meantime, his driver Kapil also came there and inquired about the matter but he was also threatened by both accused on the gun point. Their third associate also came there and he occupied the driver seat of his car. The first two accused were sitting on the rear seat with him. They took the car towards Alipur.
State vs. Sonu Chaudhary etc. 16/14 page 14 of 35 They took turn from Alipur and drove away the car towards Peera Garhi via ring road. His two mobile phones and cash of Rs.8000/ were snatched in the way. Accused kept on driving towards Khaibar Pass via Burari and Timarpur. At last, they reached a petrol pump where they got filled diesel in the Verna car and thereafter started driving the car towards ISBT Kashmere Gate. He further deposed that his SIM cards were returned to him and he was thrown out of the car near red light just ahead of the petrol pump. He spotted a PCR van on the other side of the road. He approached the PCR officials and narrated them the whole. He also informed his father by taking a mobile phone from PCR staff. His father reached there and PCR van took him PS Civil Lines. When they were sitting in PS Civil Lines, his father received a message on mobile phone from PS Mahendra Park asking them to reach the place of occurrence. They reached Mukarba chowk where his statement Ex.PW1/A was recorded. He pointed out towards accused Sonu Chaudhary as the same person who had made him to sit on the rear seat on the strength of pistol. He further deposed that he was the same accused who beat him whenever he received call on his phone. He identified the accused Sonu @ AT as the same person who had driven away his car. He identified the third accused Jitender @ Jeetu as the same person who was sitting on his left side in the car. Rough site plan Ex.PW1/B was prepared at his instance. He had also led the police party to the red light where he was thrown out of the car. PW1 State vs. Sonu Chaudhary etc. 16/14 page 15 of 35 further deposed that on 160114, he had accompanied SI Rattan Kumar to PS Sadar, Sonepat and had identified his robbed car which was seized vide Ex.PW1/C. At that time, it was in damaged condition as its glasses were broken and left tyre was also damaged and there was no battery and stepney. He further deposed that either it was 18 or 200214 when he was called in the PS Mahendra Park where he had identified all three accused. Robbed Verna car no.DL10CD7534 was in the name of his brother Ankur Bansal and it was got released by him on superdari.
PW4 Kapil and PW3 Om Prakash corroborated PW1 in every material particular.
10. All three accused and Amicus Curiae made statement on 221114 that all three accused had refused to participate in TIP before ld. MM Mr. Abhilash Malhotra on 180214 because their photographs were clicked and shown to the witnesses before TIP. They further stated that they were not disputing their non participation in TIP and that they had no objection if TIP proceedings were exhibited and read into evidence as Ex.PAdv.2. In view of no dispute, application for conducting TIP and TIP proceedings have been exhibited as Ex.PAdv.1 and Ex.PAdv.2 respectively.
11. Ld. APP argued that complainant PW1 has identified the three accused as the persons who had abducted him and robbed his Verna car and cash of Rs.8000/. He further submitted that it was accused Sonu Chaudhary who had first come to PW1 when he was State vs. Sonu Chaudhary etc. 16/14 page 16 of 35 sitting in his car and he enquired about the way to Panipat. Thereafter, he was joined by other coaccused. It is further submitted that all three accused were apprehended by the officials of PS Crime Branch on 08.02.14 and they were produced in the court in muffled faces. They were arrested in the present case and IO moved application for their TIP but they refused to participate on 18.02.14. They were identified by PW1, PW3 and PW4 in PS Mahendra Park on 19.02.14.
APP further argued that accused Sonu Chaudhary had pointed out a parking slot near the bus stand of Sonepat where he had parked the looted car twice once on 08.01.14 and second time on 11.01.14. Parking register Ex.P4 was taken into possession. Accused Sonu further pointed out a place at Jahri Road, Sonepat where he had left abandoned the robbed car. All three accused then pointed out the H. No.605/18, Pethe Wali gali, Tara Nagar, Sonepat where they were residing on rent. Also, they pointed out the place of robbery and petrol pump near Khaibar Pass, Civil Lines, Delhi where diesel of Rs.1000/ was got filled in the robbed car.
12. On the other hand, Ld. Amicus curiae for accused argued that not a single witness was joined by the Crime Branch at the time of arrest of accused. There are contradictions in the evidence of PW1, PW3 and PW4 whether the tempo traveller was already out of order in Dadri or it became out of order after travelling some distance. She further submitted that as per PCR form, PW2 was the eye witness but State vs. Sonu Chaudhary etc. 16/14 page 17 of 35 he did not depose those facts. It is further contended that PW1 has admitted in crossexamination that he was shown 200300 photographs and possibility is there that he might have been shown the photographs of the accused also. Ld. Amicus curiae further argued that PW1 claimed in crossexamination that while he was in the custody of the accused, he had received 56 calls on his mobile phone but IO did not collect the CDRs. Lastly, it is contended that prosecution has failed to prove who had intimated PCR (HQ) about the incident by dialling 100 number.
13. PUBLIC WITNESSES PW22 SI Anuj Nautiyal is the first IO of FIR no. 12/14 u/s 411/482/34 IPC and 25 Arms Act, PS Crime Branch. It is pertinent to mention that the accused was first arrested in that case. He deposed that on 08.02.14, HC Azad Singh produced secret informant in his office who gave tipoff that some miscreants involved in the highway road robbery would come near Splash water park, Alipur on that day at about 3.304.00 PM in a looted car with fake number plate HR 26Z3822. A raiding team was formed which reached the spot. All the accused alongwith one person namely, Rajesh reached that area on 3.45pm and were apprehended. Accused Sonu Chaudhary was in the driver seat. He and accused Sonu @ AT were found in the possession of one pistol and five live cartridges each.
Splash Water Park is on NH1 leading to Delhi from Chandigarh. It is always a busy place. The accused were State vs. Sonu Chaudhary etc. 16/14 page 18 of 35 apprehended at about 4.00 pm on 08.02.14. Several vehicles like cars, taxis, buses, loading autos and trucks might be plying at that time. PW22 did not depose that he asked any public person to participate in the apprehension of the accused. But it has been propagated by the Apex Court several times that non joining of witnesses in the arrest and recovery proceedings is not detrimental to the prosecution case. Following was held by the Supreme Court in Ajmer Singh Vs. State of Haryana (2010)(3), SCC 746, "20. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence.
It was held by Apex Court in State of U. P. Vs. Anil Singh 1988 SUPP SCC 686 that the public at large are generally reluctant to come forward to depose before the court, therefore, the prosecution case cannot be doubted for nonjoining of independent witnesses. In State (Govt. of NCT of Delhi) Vs. Sunil & Ors. (2001) I SCC 652 Hon'ble Supreme Court held :
"We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We State vs. Sonu Chaudhary etc. 16/14 page 19 of 35 are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That officials acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through crossexamination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
In Ramjee Rai & Ors. Vs. State of Bihar, (2006) 13 SCC 229 the Apex Court held that it is now well settled that what is necessary for proving the prosecution case is not the quantity but the quality of evidence. The Court cannot overlook the changes in value system in the society. When an offence is committed in a village owing to land, dispute the independent witnesses may not come State vs. Sonu Chaudhary etc. 16/14 page 20 of 35 forward.
To the same effect was the observation of Hon'ble Supreme Court in case of Ram Swaroop Vs. State (Govt. of NCT of Delhi) in Cr. Appl. No. 1327/10 decided by Hon'ble Supreme Court on 21.05.13.
14. POINTING OUT MEMOS Crime Branch officials intimated the IO of the present case on 09.02.14 regarding arrest of all three accused and their disclosure statements in which they had confessed complicity in the present case. IO moved application before Ld. ACMM for their production warrants and in pursuance, all the accused were produced on 15.02.14 in muffled faces. On 18.02.14, PW19 obtained the accused on police remand and in pursuance to disclosure statements, they led the police party to Mukarba chowk flyover and pointed out the place from where they had abducted the complainant and robbed his car. Pointing out memo Ex.PW12/D, Ex.PW12/E and Ex.PW12/F were prepared. Thereafter, accused Sonu Chaudhary pointed out the place at Jahri road, Sonepat, Haryana where he had left the robbed car in deserted condition. Pointing out memo Ex.PW12/G was prepared. Thereafter, accused Sonu Chaudhary pointed out the parking slot near bus stand of Sonepat and pointing out memo Ex.PW12/H was prepared. In pursuance to that pointing out, PW19 took into possession parking register Ex.P4 from parking attendants Parmod and Yogender. As per entry appearing at page no.
State vs. Sonu Chaudhary etc. 16/14 page 21 of 35 39 dtd. 08.01.14, Verna car bearing no. DL10CD7534 had been parked there by one Sahil. As per page no.40, dtd. 11.01.14, the Verna car no. DL10CE1569 was parked there again in the name of Sahil. The parking register was seized vide memo Ex.PW12/I. Thereafter, all accused led PW12 and PW19 to house no. 605/18, Pethe Wali gali, Tara Nagar, Sonepat and pointed out as the house where they had stayed after looting Verna car. Pointing out memos Ex.PW12/J, PW12/K and Ex.PW12/L were prepared. Thereafter, all accused persons led PW12 and PW19 to Narain Service station, Khaibar Pass, Mall Road and pointed out the Petrol pump saying that they had got filled diesel of Rs.1000/ in the Verna car. Pointing out memos Ex.PW12/M, Ex.PW12/N and Ex.PW12/O were prepared.
15. Prosecution case is that parking slot was pointed out by accused Sonu Chaudhary consequent to which parking register Ex.P4 was recovered in which entry Ex.P4A and Ex.:4B dtd. 08.01.14 and 11.01.14 were made in the name of a person namely, Sahil vide which the robbed car was parked there. PW14, parking attendant Yogender was also witness to the pointing out and he identified accused Sonu @ AT as the person who had parked the car and who had pointed out that place on 19.02.14 in the presence of police. Disclosure statement is admissible in evidence only if a physical object is discovered in pursuance thereof. In the present case, in pursuance to disclosure statement, physical fact, i.e., parking register was recovered from there. PW12 and PW19 deposed that the place State vs. Sonu Chaudhary etc. 16/14 page 22 of 35 was pointed out by accused Sonu Chaudhary whereas version of PW14 Yogender is that it was pointed out by accused Sonu @AT. So, prosecution has failed to prove the identity of the accused by whom place was pointed out. Moreover, register Ex.P4 does not bear the signature of any of the accused. Their names are not mentioned in the register as the persons who had parked the Verna car there. Infact, name of one Sahil is mentioned there.
16. Accused Sonu Chaudhary had also pointed out a place at Jahri Road, Sonepat where he had left the robbed car unattended. The Sonepat police had already recovered the robbed car on 16.01.14 and hence, police was already aware of that place. Similarly, police was already aware of the place of robbery and Narain Service Station (petrol pump). In this respect case of accused is well covered by Vijay Singh vs. State and ors. Crl. Appeal No.819/12, decided on 030912. In the cited case, Hon'ble High Court of Delhi did not rely upon the pointing out memo holding that it was not admissible in evidence as it did not fall within the scope and ambit of section 27 of Indian Evidence Act 1872 because the place of occurrence was already known to the police. Hence, pointing out memos are not incriminating circumstance against any of the accused.
17. All accused had pointed out house No.605/18, Pethe Wali gali, Tara Nagar where they had resided after robbing Verna car. No physical object was recovered from them. Discovery was of only mental fact and not of physical fact. It was held by Privy State vs. Sonu Chaudhary etc. 16/14 page 23 of 35 council even before Independence in Pullukuri Kotaya vs. Emperor AIR 1947 PC 67, that only that part of confessional statement would be taken into account which may lead to a discovery of a fact and that discovery should be of physical object and not only of a mental fact. That judgement was relied upon by the Supreme Court State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru Crl. Appeal No.373 375/2004 decided on 04082005.
In view of the above discussion, pointing out memos are not incriminating against any of the accused.
18. CONTRADICTIONS PW1 Ashish deposed that Tempo traveller bearing registration no. DL1VA9661 was in proper condition when they started from Delhi to Dadri but it broke down after covering a distance of 3 kms. He further deposed that they had made efforts to search mechanic to remove the defect but in vain and then the tempo was towed with another tempo. PW3 deposed in crossexamination that vehicle had developed snag at about 5.30 pm and mechanic was called at Dadri itself but vehicle could not be ignited. PW4 deposed that on that day they had gone to Dadri to meet the officials of the company where their vehicles were attached. The driver told them that one of the tempo traveler could not be ignited. He further deposed that PW1 Ashish Bansal had gone at 4.00pm in the search of mechanic. Mechanic tried hard to ignite the vehicle but it could not be started and then it was towed with another tempo traveller.
State vs. Sonu Chaudhary etc. 16/14 page 24 of 35 So, there is some contradiction regarding the time and place of developing of technical snag in tempo traveller no. DL1VA 9661. Also, there is contradiction whether the services of mechanic were taken or not. These contradictions are only on introductory facts. There is no contradiction on material facts and hence, contradictions can be ignored easily.
19. WHO CALLED PCR?
PW2 Rajiv Bansal deposed that on 06.01.14 at about 11 11.30pm, he received a telephonic information from his driver Kapil that 34 persons had abducted his son Ashish on the gun point and also robbed his car bearing DL10CD7534. He made call to police at 100 number from his mobile no. 9312212226. PW3 Om Prakash deposed in crossexamination that at the time of robbery, he had mobile phone with which he had informed 100 no. about the incident. He had made 23 calls and thereafter, he started receiving calls from 100 no. PW4 Kapil deposed in crossexamination that it was he who had intimated PCR at 100 no. by using the mobile phone of PW3 as balance in his own phone was negligible. PW2, PW3 and PW4 are claiming adversely to each other that they had intimated PCR about the incident.
The first PCR call was made at 23.17.53 on which PCR form Ex.PW12/A was filled up. Second PCR form was made at 23.25.45 on which PCR form Ex.PW16/A was filled up. Contents of both PCR forms are as under: State vs. Sonu Chaudhary etc. 16/14 page 25 of 35 "46 badmash, jinke paas banduk thi, humein banduk dikha kar mere ladke or meri gadi no. DL...7485 Verna white colur ki gaddi ke saath karnal ki taraf gaye hain"
Name of the informant is mentioned as Rajiv Bansal. Rajiv Bansal is none else than PW2. Moreover, the two words, "mere ladke" suggests that the caller was the father of boy who had been abducted. The abducted man was PW1 and his father's name is Rajiv Bansal. So, it is held that PCR was informed about the incident by PW2 and not by PW3 or PW4. It may be possible that PW3 or PW4 would have informed PW2 about the incident and then PW2 gave intimation to PCR (HQ).
20. WHETHER PW2 IS EYE WITNESS?
Ld. Amicus curiae for all accused argued that PW2 was eye witness but he did not depose a single word about the incident of abduction and robbery and in support, she went through the PCR forms Ex.PW16/A and Ex.PW21/A. In both PCR forms, use of word "humein" is significant because amicus curiae is heavily relying upon it.
Bare perusal of the information shows that the informant was also present at the spot at the time of incident. The PCR van officials reached the spot and responded back to the PCR (HQ). Perusal of their response shows that the caller is not eye witness because when the PCR van officials reached the spot, they did not find the informant there at 23:41:21. When the informant was State vs. Sonu Chaudhary etc. 16/14 page 26 of 35 contacted on phone by them, he told that his driver was standing at Mukarba chowk flyover and that his mobile no. was 9811195152. The informant did not come to the spot till 00:02:13 of 07.01.14 and then the PCR van officials responded that despite search, no one was present at the spot and when contacted, informant told them that he had still not reached the spot. At last, the PCR officials found driver Om Prakash at 00:51:59 who told that his employer Ashish Bansal had been abducted and his Verna car no. DL10CD7534 had also been robbed by armed miscreants.
Response of PCR officials rule out the possibility of PW2 being an eye witness.
21. CDRs Ld. Amicus curiae argued that PW1 had made call to his father and petrol pump attendants. SHO had also rang him up when he was in the captivity of the accused. She submitted that IO did not place on record CDRs of mobile phones of PW1.
PW1 admitted in crossexamination that he had attended 56 calls on mobile phone after beginning of incident. First received call was of his driver Dinesh at 11.10pm. Just thereafter, second call was from second driver Mohit. He further deposed that accused persons had asked him to make call for a ransom of Rs.10 lacs. His father did not have that much money. So instead of ringing up home, he made call to a filling station from where he used to take fuel. He talked to one Sharif who was employed at the petrol pump but Sharif State vs. Sonu Chaudhary etc. 16/14 page 27 of 35 told him that it was his off day. He further deposed that he had called Sharif because he was knowing only his mobile number. He enquired from Sharif the mobile phone number of the person who was on duty and Sharif told the name of that person as Kapil and thereafter, he rang up Kapil and requested to give him Rs.20,000/ and Kapil agreed. He further deposed that Kapil agreed to give Rs.20,000/, accused stated that a person who could give Rs.20,000/, can also give Rs.1 lac. They came to Narain Service station, Khaibar Pass in order to get that money.
CDRs of phones of PW1 would have corroborated his presence at Mukarba Chowk. It would have further established his locations on the route he travelled with the accused. In nutshell, the CDRs would have been corroborative of the incident. That corroboration is coming from the mouths of PW3 and PW4. So non placing of CDRs of mobile phone of PW1 on record is not fatal to the prosecution case.
22. IDENTIFICATION OF THE ACCUSED Ld. Amicus curiae argued that it has been admitted by PW1 that he was shown 200300 photographs and possibility is there that he might have been shown photographs of the accused also and that is why they refused to participate in TIP on 18.02.14.
Incident had taken place on 06.01.14. The robbed car was found in deserted condition at Jahri Road, Sonepat on 16.01.14 and on the same day it was identified by PW1 by visiting Sonepat. All State vs. Sonu Chaudhary etc. 16/14 page 28 of 35 three accused were arrested by the officials of Crime Branch on 08.02.14. They refused to participate in TIP on 18.02.14. Next day i.e. on 19.02.14, all accused were identified by PW1, PW3 and PW4.
PW1 pointed out towards accused Sonu Chaudhary in the court as the person who had made him to sit on the rear seat of his own car on the strength of pistol and had also beaten him whenever he received call on his phone. He identified accused Sonu @ AT as the person who had driven his Verna car after abduction and robbery. He identified accused Jitender @ Jeetu as the person who was sitting on his left side in his car. At that time accused Sonu Chaudhary and Jitender @ Jeetu were with pistols. Accused have been identified by PW2 and PW3 also. It is true that it has been admitted by PW1 that he was shown 200300 photographs before 18.02.14 but those did not include the photographs of any of the accused. He could not recollect the exact date when photographs were shown to him but he stated that photographs were shown to him before his vehicle was traced, i.e., before 16.01.14. It means that PW1 was shown photographs of some well known bad characters and not of accused because by that time the accused had not been arrested. It is pertinent to mention that they were arrested on 08.02.14. There is no material on the file to suggest that PW1 was shown photographs by the police after 08.02.14 and before 19.02.14.
All three accused and their counsels admitted vide statement dtd. 22.01.14 that they were not disputing that they had State vs. Sonu Chaudhary etc. 16/14 page 29 of 35 refused to participate in TIP because their photographs were shown to the witnesses. They had refused to participate in TIP on 18.02.14. They could not elicit from the crossexamination of PW1, PW3 and PW4 that they were shown photographs after 08.02.14. So, the accused have failed to substantiate their defence for non participation in TIP. After their refusal to participate, all three accused were identified in PS Mahendra Park by PW1, PW3 and PW4. They have been duly identified in the trial with specific roles. Hence, prosecution has established the identity of the accused beyond reasonable doubt.
23. CONCLUSION.
In view of above discussion, all three accused are held guilty u/s 365/34 IPC, 392/34 IPC and 394 IPC. At that time accused Sonu Chaudhary @ Sahil and Jitender @ Jeetu were armed with pistols, they are held guilty u/s 397 IPC also.
24. Let they be heard on the point of sentence. Announced in the open court On the 2nd day of December, 2014 (UMED SINGH GREWAL) ASJ/SPECIAL JUDGE (NDPS) NORTH:ROHINI COURTS:DELHI State vs. Sonu Chaudhary etc. 16/14 page 30 of 35 IN THE COURT OF MR. UMED SINGH GREWAL, ASJ/SPECIAL JUDGE (NDPS) NORTH DISTRICT: ROHINI COURTS:DELHI SC No.165/2014 FIR No.16/14 PS Mahendra Park U/s 365,394,397,483/34 IPC State Versus
1. Sonu Chaudhary @ Sahil S/o Omkar Singh r/o Village Khutipuri PS Mursan District Hathrash (UP).
2. Sonu @ AT s/o Jai Prakash r/o H. No.2122, Gali no.1, Dindayal puri Ghaziabad, (UP).
3. Jitender @ Jeetu s/o Satish Kumar r/o D136 Bhagwati Vihar, Uttam Nagar, Delhi.
DATE OF INSTITUTION : 04062014 RESERVED FOR JUDGMENT : 29112014 DATE OF JUDGMENT : 02122014 ORDER ON SENTENCE 05.12.14 Present: Mr. Joginder Malik, APP for the State.
Ms.Sunita Tiwari, amicus curiae for all convicts. All three Convicts produced from JC.
State vs. Sonu Chaudhary etc. 16/14 page 31 of 35
1. All convicts have already been held guilty u/s 365/34 IPC, 392/34 IPC and 394 IPC. Convicts Sonu Chaudhary @ Sahil and Jitender @ Jeetu have also been held guilty u/s 397 IPC also.
2. Ld. amicus curiae for convicts argued that convict Sonu Chaudhary is of 2223 years of and he has been recently married. He has one brother who is residing in Delhi. Before his arrest, his parents were residing with him in Mathura. It is stated that he is the only bread earner of his family.
About convict Sonu @ AT it is stated that he is of 31 years. He has a son of 5 years. Before arrest his parents were residing with him. His elder brother is residing separately from his parents.
Amicus curiae submitted that convict Jitender @ Jeetu is a unmarried young man of 24 years. His parents are residing with his brother. Brother is elder to him.
3. Ld. APP submittd that accused had committed robbery on the highway in the night. About convicts Ld. APP argued that convict Sonu Chaudhary had threatened complainant Ashish Bansal and the IO when complainant was examined on 18.11.14.
4. The incident of robbery was committed at 11.45 pm at Mukarba Chowk flyover which is a National Highway. The robbery was committed on the strength of pistols held by convicts Sonu Chaudhary and Jitender.
State vs. Sonu Chaudhary etc. 16/14 page 32 of 35
5. It is on record in proceedings dtd. 18.11.14 that further examinationinchief of PW1 Ashish Bansal was deferred for sometime as the case property had yet not been brought. He was asked to sit outside the court as all chairs were occupied in the court. He appeared after 45 minutes in the court and complained that accused Sonu Chaudhary had also gone outside the court during that time in police custody and had threatened him to teach lesson for deposing against him. The police officials in whose custody convict was, told the court that they had taken the convict outside the court as he wanted to speak. They also corroborated the complainant by saying that convict had threatened him. After completing examinationinchief, the matter was adjourned to postlunch session. In that session, IO as well as complainant complained that convict Sonu Chaudhary had threatened them in the lunch time.
6. Taking into account all these facts and circumstances, all these convicts are sentenced to undergo rigorous imprisonment of five years and a fine of Rs.5,000/ (Rupees Five thousand only) each is imposed. In default of payment of fine, they shall further undergo SI for six months for the offence punishable u/s 365/34 IPC.
Convict Sonu Chaudhary is further sentenced to undergo rigorous imprisonment of twelve years and a fine of Rs.10,000/ (Rupees ten thousand only) is imposed, in default of payment of State vs. Sonu Chaudhary etc. 16/14 page 33 of 35 fine, he shall further undergo SI for one year for the offence punishable u/s 392/34 IPC.
Convict Sonu @ AT and Jitender @ Jeetu are also sentenced to undergo rigorous imprisonment of eight years and a fine of Rs.10,000/ (Rupees ten thousand only) each is imposed, in default of payment of fine, they shall further undergo SI for one year for the offence punishable u/s 392/34 IPC.
7. Convict Sonu Chaudhary is further sentenced to undergo rigorous imprisonment of ten years and a fine of Rs.10,000/ (Rupees ten thousand only) is imposed, in default of payment of fine, he shall further undergo SI for one year for the offence punishable u/s 394/34 IPC.
Convicts Sonu @ AT and Jitender @ Jeetu are further sentenced to undergo rigorous imprisonment of eight years and a fine of Rs.10,000/ (Rupees ten thousand only) each is imposed, in default of payment of fine, they shall further undergo SI for one year for the offence punishable u/s 394/34 IPC.
8. Convict Sonu Chaudhary is further sentenced to undergo rigorous imprisonment of ten years and a fine of Rs.10,000/ (Rupees ten thousand only) is imposed, in default of payment of fine, he shall further undergo SI for one year for the offence punishable u/s 397/34 IPC.
Convict Jitender @ Jeetu is further sentenced to undergo rigorous imprisonment of seven years and a fine of Rs.10,000/ State vs. Sonu Chaudhary etc. 16/14 page 34 of 35 (Rupees ten thousand only) is imposed, in default of payment of fine, he shall further undergo SI for one year for the offence punishable u/s 397/34 IPC.
9. Benefit of section 428 Cr. PC be given to the convict.
10. All the sentences shall run concurrently.
11. Fine not deposited.
12. Let a copy of Judgment and Order on Sentence be given to convict.
13. File be consigned to Record Room.
Announced in the Open Court On 5th day of December'2014.
(UMED SINGH GREWAL) ASJ/Special Judge (NDPS) North Distt: Rohini Courts: Delhi State vs. Sonu Chaudhary etc. 16/14 page 35 of 35