Delhi District Court
The State vs 1. Pappu Bihari on 22 January, 2015
D.O.D 22.1.2015 FIR No. 477/2008
P.S S.P Badli
u/s 395/342/397/34 IPC
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 87/14
UID NO . : 02404R0110012009
FIR No : 477/2008
P. S : S.P Badli
u/s : 395/342/397/34 IPC
The State versus 1. Pappu Bihari
S/O Ramanuj Bhardwaj
R/O H.No. 217, Kothi Colony
Tahir Pur, Delhi.
2. Mannan@ Monu
S/O Mohd Ali
R/O Village Rahpura Chaudhry
P.s Ijjat Nagar, District Barely,
UP .
3. Amit @ Sonu @ Chikna
S/O Iswar Singh
R/O A2/338 Nand Nagri Delhi.
4. SatPrakash @ Satte
S/O Raja Ram R/O H.NO 220 ,
Jai Hind Kusth Ashram Tehpur
Shadra , Delhi.
5. Baljinder Singh @ Balwinder
Singh @ Satnam @ Satta@
Bijender@ Balli S/O Saudagar
SC No.87/14 State vs Pappu Bihari @etc (Page 1 of 60 )
D.O.D 22.1.2015 FIR No. 477/2008
P.S S.P Badli
u/s 395/342/397/34 IPC
Singh R/O Vill Khatran P.S
Jhander Distt Amritsar,
Punjab.
Date of committal to session court : 12-10-2010
Date of argument : 09-01-2015
Date of order : 22-01-2015
JUDGMENT
1 Briefly stated facts of the case are that on 17-11.2008, at about 9.15 AM a dacoity took place in State Bank of Bikaner & Jaipur( SBBJ) situated at A-2, First Floor, Suraj Park, Badli Industrial Area, whereby an amount of Rs. 23,78,500/- were looted. According to the prosecution, at that time Sh Rajender Kumar Meena (Branch Manager), Neeru Verma (Clerk) , V.K Sharma (Head cashier), Sandeep(Sweeper), Rajinder Prasad( (Peon), Dinesh Kumar, ( Dy Manager) and few customers were present over there.
2 It is the case of the prosecution that assailants were armed with pistols and they gave beatings on persons of bank officials. Customers and officials were made to sit in one corner of the bank under the range of pistol. The persons who was SC No.87/14 State vs Pappu Bihari @etc (Page 2 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC covering the officials and customers on the point of pistol demanded keys of strong room from them. Rajinder Kumar Meena(Branch Manager) asked Sandeep(sweeper) to take keys and get the strong room opened so as to avoid any mis-happening and loss of life. Sandeep then went towards the strong room with two persons who were at the strong room entrance and at the counter.
3 It is alleged that accused Satparkash @ Satte had initially hit Rajender Kumar Meena with his hand on the backside of his head and he had also kicked R.K Meena on his abdomen region and snatched his mobile phone and had also put pistol on temple region of R.K Meena and who had snatched the mobile phone and the paper from the pocket of Dinesh. He was having pistol at the time of dacoity and had hit and snatched keys of the bank from him.
4 It is alleged that accused Baljinder @ Satnam @ Balwinder was covering all other bank employees and customers and was also holding the pistol . He had shown gun to Sandeep and also asked him about the cash which was available in the SC No.87/14 State vs Pappu Bihari @etc (Page 3 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC bank at the time of incident 5 It is the further case of the prosecution that accused Pappu Bihari and accused Mannan had gone inside the strong room along with Sandeep. Accused Amit @ Sonu @ Chikna had been called inside the bank by accused Satya parkash @ Satte to join them and accused Amit @ Sonu @ Chikna remain present near the main counter near the main entrance and was keeping watch on the activities .
6 It is further alleged that accused Baljinder @ Satnam @ Balwinder had opened the locker and had taken out the cash from the locker and put the cash i.e Rs 23,78,500 /- ( Rs Twenty three lacs seventy eight thousand and five hundred) in the bag. Accused Pappu Bihari along with other co-accused persons pushed the bank officials and customers who were present there including Rajender Kumar Meena , Neeru Verma , V.K Sharma , Sandeep , Rajinder Prasad and Dinesh Kumar inside the chest room situated inside the strong room . All accused persons bolted the main door of the strong room and ran away from there with aforesaid cash.
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D.O.D 22.1.2015 FIR No. 477/2008
P.S S.P Badli
u/s 395/342/397/34 IPC
7 It is further case of prosecution that
Ramchander Jindal, as clerk at above said branch of SBBJ , on 17.11.2008, at about 10:05 am , reached at the branch and found that at that time, nobody was there in the bank including his staff and customers. He heard the low noise of knocking and some breaking. He called the PCR and police reached there. Insp. Sanjeev Kumar (PW33) on 17.11.2008 , on receipt of DD no. 25 B regarding breaking of cash room at SBBJ , Bawana Road, Indl Area, Main Road, Delhi reached at the spot . He recorded statement of Dinesh Kumar and prepared rukka and got registered the FIR . He called the crime team . Crime team and photographer reached there. Spot was inspected by Crime team incharge and photographs were taken.
8 It is further case of the prosecution that on 26.12.2008, accused Pappu Bihari was arrested in FIR no.449/2008 P.S R.K Puram wherein he had made a disclosure statement regarding his involvement along with accused persons and at that time accused Mannan was also running in custody in FIR no. 449/08 P.S R.K Puram. On 6.1.2009, accused Pappu Bihari SC No.87/14 State vs Pappu Bihari @etc (Page 5 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC and Mannan were produced in Rohini Court and were arrested in the present case.
9 It is further case of prosecution that on 7.2.2009, accused Satya Prakash @ Satte in FIR no. 24/09 ExPW26/A P.S Hauz Khas wherein he had made disclosure statement admitting his guilt in present case. On 10.2.2009, accused Amit @ Sonu@ Chikna was arrested in Kalandra u/s 41.1 CrPC vide DD no.29 A dt 10.2.2009 P.S Lodhi Colony wherein he confessed his involvement in the present case . On 16.2.2009, accused Satyaprakash and Amit @ Sonu @ Chikna , who were running in JC and lodged in Central Jail, Tihar were arrested by Inspector Sanjeev in the present case.
10 It is the further case of prosecution that on 12.3.2009, Inspector Satya Vir received information from S.I Harbir regarding arrest of accused Baljinder @ Satnam in case FIR no. 11/2009 wherein he had made a disclosure statement admitting his guilt in the present case . Accused Baljinder Singh @ Balwinder Singh @ Satnam @ Satte @ Bijender @ Balli was arrested from Tihar Jail.
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11 On completion of investigation chargesheet
came to be filed.
12 Ld MM took the cognizance of the offences
and subsequently, since the offence u/s 397 IPC was exclusively triable by the court of sessions, therefore, vide order dated 12-10-2010 case was committed to the court of sessions .
13 Vide order dated 15.02.2011, ld Predecessor of this court decided the charges against the accused persons and all the accused persons were charged for offences u/s 395/342/34 r/w 397 IPC. All the accused persons pleaded not guilty and claimed to be tried.
14 Here it is pertinent to mention that one more accused namely Javed@ Nadeem had been chargsheeted but he was discharged vide order dated 15-02-2011.
15 In order to prove its case, prosecution has examined as many as forty one witnesses. I do not SC No.87/14 State vs Pappu Bihari @etc (Page 7 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC want to burden this judgment by reproducing their testimonies here as the same shall be discussed and taken into consideration while appreciating the case on merit as and when required . However, an overview of their testimonies is being given.
16 According to the prosecution PW1 Sh Rajender Kumar Meena ( Branch Manager), PW6 Neeru Verma ( Clerk) , PW7 V.K Sharma ( Head cashier) PW8 Sandeep (Sweeper),PW10 Rajinder Prasad( Peon),PW16 Dinesh Kumar, complainant ( Dy Manager) are the bank officials and also eye witnesses of the incident. PW9 Ramchander Jindal , Clerk on the day of incident reached at the bank and is shown to have made a call to police.
17 PW2 Ct. Ravinder was posted as photographer with crime team outer district . On 17.11.2008, he along with crime team headed by S.I Sanjay Gade reached at the spot and he had taken twenty two photographs Ex PW2/A1 to ExPW2/A22. Negatives are ExPW2/B (collectively).
18 PW3 HC Kiran Pal is formal witness to whom IO Insp.
Sanjeev Kumar handed over rukka for registration of FIR.
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19 PW4 Ct. Sadashiv was along with Insp. Sanjeev
Kumar on 6.1.2009, when accused Pappu Bihari and Mannan were arrested vide arrest memo ExPW4/A and ExPW4/B and their disclosure statement ExPW4/C and ExPW4/D were recorded by Insp. Sanjeev Kumar(PW33).
20 PW5 Ct. Ashkaran Singh was along with Insp.
Sanjeev Kumar on 13.1.2009 and in his presence accused Pappu Bihari pointed out the Bank where he along with his co-accused persons committed robbery and IO prepared pointing out memo ExPW5/A. 21 PW11 HC Sunena , on 26.12.2008 was posted as duty officer at P.S S.P Badli and she proved DD no.10 A ExPW11/A vide which information was received from S.I Sukhbir Malik(PW17), regarding arrest of accused Pappu Bihari in case FIR No. 449/08 P.S R.K Puram wherein he disclosed about his involvement in the present case also.
22 PW12 ASI Sushma , on 15.11.2008 was posted as duty officer at P.S Roop Nagar . She proved FIR no.268/2008,P.S Roop Nagar as ExPW12/A. 23 PW13 Ct. Kiran Krishan , on 17.11.2008 was posted as DD writer at P.S S.P Badli . She deposed that on 17.11.2008 at about 10:10 am, she received information through wireless to the effect that " State Bank of Bikaner and Jaipur, Indl. Area Main Road Bank Ke Cash room mein tod phod kar rahe hai". She SC No.87/14 State vs Pappu Bihari @etc (Page 9 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC recorded this information vide DD no. 25 A ExPW13/A. 24 PW14 Inspector Sanjay Gade, on 17.11.2008 on receipt of call from PCR reached at the spot along with crime team. He inspected the spot and prepared report ExPW14/A. 25 PW15 Insp. Pramod Joshi , on 10.2.2009 was posted at P.S Lodhi Colony and on that day he arrested accused Amit@ Sonu Chikna vide DD no. 19 A dt. 10.2.2009 u/s 41.1. CrPC, P.S Lodhi Colony, New Delhi. Accused disclosed about his involvement in the present case.
26 PW17 S.I Sukhbir Singh is IO of case FIR NO.
449/2008 P.S R.K Puram. He deposed that accused Pappu Bihari was arrested in that case and he disclosed about his involvement in the present case.
27 PW18 Retd. ASI Surya Narayan, on 6.2.2009 was posted as duty officer at P.S S.P Badli and he received information from S.I Chander Shekhar P.S Hauz Khas about the accused Satprakash @ Satte in FIR no.24/09 P.S Hauz Khas wherein he disclosed about his involvement in the present case. He recorded this information vide DD no.6 A ExPW18/A. 28 PW19 Ct. Maya, on 11.2.2009 was working as DD writer at P.S S.P Badli . On that day she received information from S.I Pramod Joshi(PW15) of P.S Lodhi Colony about the arrest of accused Amit @ Sonu vide Kalandra u/s 41.1 CrPC and about his SC No.87/14 State vs Pappu Bihari @etc (Page 10 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC disclosure of his involvement in the present case. She recorded that information vide DD no. 21 B ExPW19/A and informed the same to the IO of present case.
29 PW20 HC Mahender Singh, duty officer proved the registration of FIR ExPW20/A and his endorsement ExPW20/B on rukka regarding Kayami Mukadma . He also proved certificate u/s 65 B of Indian Evidence Act ExPW20/C. 30 PW21 Smt Yojna Sharma is the owner of property no.
A-2, First Floor, Suraj Park, Badli Indl. Area. She proved the lease deed as ExP-1 vide which her said premises was given to State Bank of Bikaner & Jaipur on lease and the lease period was from 11.11.2005 to 1.4.2010.
31 PW22 Ct. Dipti , on 13.1.2009 was with Insp.
Sanjeev(PW33) and Ct. Ashkaran at the time when pointing out memo of accused Pappu Bihari was prepared .
32 PW23 Ct. Satish is witness to the pointing out memo of accused Mannan@ Monu .
33 PW24 S.I Chander Shekhar , on 24.1.2009 was with Insp. Yogesh Malhotra(PW27) during investigation of case FIR no. 24/09 P.S Hauz Khas where accused Sat Prakash @ Satte was arrested and he disclosed about his involvement in the present case.
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34 PW25 HC Laxmi , on 18.11.2008 was posted as duty
officer at P.S R.K Puram and he proved registration of FIR no.
449/2008 P.S R.K Puram.
35 PW26 HC Janakraj , on 19.1.2009 was posted as duty
officer at P.S Hauz Khas and proved FIR ExPW26/A .
36 PW27 Insp. Yogesh Malhotra is the IO of FIR no. 24/09 P.S Hauz Khas wherein accused Sat Prakash @ Satte was arrested and he made disclosure about his involvement in the present case.
37 PW28 Ramesh , LDC Juvenile Justice Board produced the record pertaining to FIR no.268/2008 P.S Roop Nagar.
38 PW29 S.I Harbir Singh is IO of case FIR no.11/2009 P.S special cell, Lodhi Colony where accused Baljinder was arrested and disclosed about his involvement in the present case.
39 PW 30 ASI M. Baxla was posted as MHC(M) P.S Special Cell , Lodhi Colony .
40 PW31 Kishore Aggarwal is the owner of stolen vehicle bearing no. DL-8CH-3176 ,which was the case property in a case FIR no.268/2008. He took the said vehicle on superdari vide ExPW13/B. SC No.87/14 State vs Pappu Bihari @etc (Page 12 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC 41 PW32 Inspector Satyavir Singh is one of the IO of the present case. He is shown to have collected the seizure memo of Maruti Zen no. DL-8C-3816 and seizure memo's of pistol recovered in FIR no. 24/09 P.S R.K Puram. He arrested the accused Satprakash @ Satte vide arrest memo ExPW32/C and recorded his disclosure statement ExPW32/D. He deposed that on 19.3.2007, he arrested accused Amit @ Sonu @ Chikna vide arrest memo ExPW32/E and recorded his disclosure statement ExPW32/G. He further deposed that accused Amit@ Sonu @ Chikna was put to TIP vide TIP proceedings ExPW32/I.PW32 is shown to have filed the chargesheet against the accused Pappu Bihari and Mannan. Subsequently, he arrested accused Sat Prakash @ Satte from Tihar Jail vide arrest memo ExPW32/C and recorded his disclosure statement ExPW32/D. PW32 was cross examined by the ld counsel for the accused persons.
42 PW33 Inspector Sanjeev Kumar is the initial IO of the present case. He recorded statement of complainant Dinesh Kumar ExPW16/A, prepared rukka EXPW33/A , site plan ExPW33/B and got registered the FIR. On 26.12.2008, on receipt of information about arrest of accused Pappu Bihari and Mannan in FIR no. 449/08 P.S R.K Puram, he collected the relevant documents from there and later on arrested aforesaid accused persons vide arrest memo's ExPW4/A and ExPW4/B respectively and disclosure statement of accused Pappu Bihari ExPW4/C and Mannan ExPW4/D was recorded. PW33 deposed that both the aforesaid accused persons were put to TIP Proceedings and TIP proceedings of accused Pappu Bihari is ExPW33/D and Mannan SC No.87/14 State vs Pappu Bihari @etc (Page 13 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC EXPW33/E. ON 07.2.2009, on receipt of information about arrest of accused Satprakash @ Satte in FIR no. 24/09 P.S Hauz Khas , he collected relevant documents from there. On 11.2.2009,PW33 also received information about arrest of accused Amit @ Sonu @ Chikna vide kalandra u/s 41.1. CrPC of P.S Lodhi Road. He collected documents from there also . PW 33 was cross examined by the ld counsel for the accused persons.
43 PW34 Anil Saraswat ,PW36 Sunil Kumar Gupta , PW37 Rajender Singh , PW38 Jitender , PW39 Sushil Kumar Nagar are the witnesses who appears to have been examined by the prosecution to bring on record that how the looted money was invested or used by the accused persons.
44 PW35 Prem Kumar, clerk , regional transport office produced the documents pertaining to vehicle no. UP-15-AJ-9022 and deposed that as per record one Anand Prakash Kaushik is the owner of the said vehicle.
45 PW40 ASI Rajbir Singh is a formal witness who was with IO Inspector Satyavir Singh during investigation.
46 PW41 Insp. Rajender Dubey is also one of the IO who got conducted TIP of accused Baljinder and obtained the account statement of Anil Kumar Saraswat from PNB.
47 Thereafter, statement of accused persons u/s 313 CrPC were recorded. Accused persons denied SC No.87/14 State vs Pappu Bihari @etc (Page 14 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC the allegations made against them. Accused Satprakash @ Satte , Mannan @ Monu and Amit @ Sonu opted to lead evidence in their defence . No evidence was led by accused Mannan @ Monu. Other two accused persons have examined DW1 Constable Kishore Kumar and accused Amit @ Sonu @ Chikna has additionaly examined DW2 Ms Rekha. Vide order dated 24.11.2014, DE was closed at the request of accused person .
48 DW1 Constable Kishore Kumar , P.S Sahibabad Distt Ghaziabad brought the FIR register and deposed that as per aforesaid register FIR bearing no.1374 /08 u/s 393/207 IPC was registered at P.S Sahibabad and as per the record the incident is of about 09:30 am dated 17.11.2008. He further deposed that in said FIR , three accused persons namely Satte @ Satprakash , Amit @ Sonu @ Chikna and Aqeel have been named.
49 DW2 Rekha claimed to be the friend of accused Amit@Sonu@ Chikna . She deposed that during the period from 14.11.2008 till 17.11.2008 midnight , she along with accused Amit @ Sonu @ SC No.87/14 State vs Pappu Bihari @etc (Page 15 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC Chikna was on pilgrimage to Vaishno Devi.
50 During the argument ld counsel for the accused persons submitted that ; this is a false case against the accused persons ; that nothing has been recovered from any of the accused persons; that there is material contradictions with regard to the identification of the accused persons; that evidence is not sufficient to reach at a conclusion that any of the accused was involved in the commission of the offence; that accused persons have been implicated in the case because that some other cases were pending against them ; that had the accused persons were involved there was no occasion for some of the prosecution witnesses who were claiming to be the eye witnesses , not to identify them.
51 Ld counsel for the accused Mannan @ Monu further argued that only on the basis of test identification parade and identification of the accused before the court, accused cannot be convicted. He has taken me to the testimonies of material prosecution witnesses, particularly PW8 and pointed out that during the cross examination of PW8, it has come on SC No.87/14 State vs Pappu Bihari @etc (Page 16 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC record that photographs of the accused were shown to him therefore, identification of accused by PW8 Sandeep losses its value. Ld counsel vehemently argued that in the present case there was some altercation between the IO and the accused persons outside the court room during the trial because IO was tutoring the witnesses to identify the accused persons falsely at the time of examination and that's why accused persons were identified before the court by them. Ld counsel for accused Mannan @ Monu has placed reliance upon two authorities i.e Budhsen vs State of UP : 1970 AIR 1321 and Asharfi & ors vs State :
AIR 1961 Allahabad 153 .
52 Ld counsel for the accused Sat Prakash @ Satte and Mannan @ Monu have also filed certified copy of the judgment dated 30.8.2012 whereby the accused Sat Prakash @ Satte and Sonu @ Amit @ Chikna were acquitted in a case FIR no. 1848/08 registered at P.S Sahibabad , Ghaziabad , UP . It was argued that aforesaid case registered at P.S Sahibabad pertains to the incident dated 17.11.2008, which took place at around 09:30 am . Ld counsel submitted that in the present case also the date of SC No.87/14 State vs Pappu Bihari @etc (Page 17 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC incident is dated 17.11.2008 and the time of occurrence is at around 09:15 am. It was contended that how an accused, particularly accused Sat Prakash @ Satte and Amit @ Sonu @ Chikna could commit two offences at two different places at the same time.
53 Per Contra, ld Adll PP for state submitted that it is not in dispute that a dacoity took place in the SBBJ Bank in the morning of 17.11.2008. Even otherwise also, from the testimonies of prosecution witnesses, it stands proved that bank was looted and near about Rs Twenty Three lacs were taken away. By referring the testimonies of prosecution witnesses particularly who were the bank employees, ld Adll PP for state vehemently argued that accused persons have been identified by the witness before the court and some of the accused persons have been identified even during the TIP proceedings.
54 Refuting the argument of ld defence counsel, ld Adll PP for state further submitted that even if for the sake of argument it is presumed that accused Satprakash @ Satte and Amit @ Sonu @ Chikna were booked in a case registered at P.s SC No.87/14 State vs Pappu Bihari @etc (Page 18 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC Sahibabad wherein the timings and date of occurrence of the incident is same , still it would not make any difference. By referring the certified copy of the judgment itself, Ld Adll PP for state pointed out that in that case , victim /public witnesses have no where stated that aforesaid accused persons have committed the said offence. Rather , record would reveal that they testified that these accused persons were not involved in the said incident. Ld Adll PP for state further submitted that it may be a modus operandi of accused persons to get named in the initial FIR registered at P.S Sahibabad to save themselves from the present case. According to the ld Adll PP for state, prosecution has been able to prove its case beyond reasonable doubt.
55 I have heard the ld Addl PP for the state and the ld counsel for the accused persons. I have also perused the record very carefully.
56 Accused persons are facing trial for the offences u/s 395/342/397/34 IPC . From the case of the prosecution, as set up by the prosecution, following two issues need to be adjudicated:
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i) Whether Dacoity took place in State Bank of Bikaner & Jaipur Branch situated at Bawana Road , Delhi ?
ii) If the answer to the first question is in affirmative, whether the accused persons were involved in the commission of the offence ?
i) Whether Dacoity took place in State Bank of Bikaner & Jaipur Branch situated at Bawana Road, Delhi ?
57 PW7 Sh V.K Sharma was posted as head cashier in State Bank of Bikaner and Jaipur. He deposed that on 17.11.2008 at about 09:45 am , when he reached on the first floor of the building and just entered the bank, he found 2-3 boys present in the bank. Two of the, were standing near the side of all counters where clerical staff used to sit and one boy was standing by the side of counters on the right side. One boy who was standing near the counter came with a pistol and asked him to sit on the side corner where other persons were sitting . That boy pushed him towards that place and he sat there on the floor.
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He had seen that 4-5 persons including Dinesh,
Sandeep and 2-3 more persons might be customers, were already sitting there. He had seen that one more boy was standing there and he was holding pistol in his hand . He put pistol on his temple and asked him not to see upwards. He could feel that 5-6 more persons were brought there and made to sit by the boys who were holding pistols. PW7 further deposed that the boy who met him first and brought him to the room where other staff were sitting on the point of gun also came there and started demanding keys of the cash room. The boy started beating Dinesh, Dy. Manager and was demanding keys and then he gave beatings to R.K Meena. Under the pressure of threat by the accused persons, Dinesh asked him to hand over the key of the cash room to those boys. He handed the keys to them. They took Sandeep and Dinesh with them to the strong room and robbed around Rs 24 lacs from the bank. Their mobile phones were snatched and dropped in the drawer which is made for the use of guard. They all were taken to strong room and then they were locked in that room. After some time, someone came from outside and they raised the noise and called the police.
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58 The testimony of PW7 finds corroboration
from the testimony of PW6 Neeru(clerk) . She has deposed on the lines of PW7 and has narrated the incident as given by PW7.
59 PW6 and PW7 turned hostile on the identification of the accused persons but their testimonies regarding that 5-6 persons were there in the bank who were having arms and ammunition ; who gave beatings to the bank employees; looted around Rs. 24 Lakhs; Bank employees were locked in the strong room and their mobiles phones were taken away has gone un-rebutted as they were not cross examined by accused persons despite opportunity.
60 It is settled law that merely because a witness is declared as hostile, there is no need to reject his/her evidence in toto. The evidence of hostile witness can be relied upon, at least to the extent, it supports the case of prosecution. In Sathya Narayanan v. State rep. by Inspector of Police, (2012) 12 SCC 627, Hon'ble Supreme Court referred to its earlier decision rendered in Mrinal Das & Others v. State of SC No.87/14 State vs Pappu Bihari @etc (Page 22 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC Tripura, (2011) 9 SCC 479 where reiterated that corroborated part of evidence of hostile witness regarding commission of offence is admissible.
61 This is not a case where truth and falsehood are inextricably mixed up. Witnesses tend to exaggerate the prosecution story. If the exaggeration does not change the prosecution story or convert it into an altogether new story, allowance can be made for it. If evidence of a witness is to be disbelieved merely because he has made some improvement in his evidence, there would hardly be any witness on whom reliance can be placed by the courts. It is trite that the maxim 'falsus in uno falsus in omnibus' has no application in India. It is merely a rule of caution. It does not have the status of rule of law. In Balaka Singh v. State of Punjab (1975) 4 SCC 511 , Hon,ble Supreme Court has said that where it is not feasible to separate truth from falsehood, because the grain and the chaff are inextricably mixed up, and in the process of separation, an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and background against which they are made, the Court SC No.87/14 State vs Pappu Bihari @etc (Page 23 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC cannot make an attempt to separate truth from falsehood, which is not there in the present case.
62 As far as occurrence of the incident is concerned, testimony of PW6 Neeru and PW7 V.K Sharma, in this regard, has gone unrebutted . As stated herein above, not even a single suggestion was put to these witnesses. There is nothing on record to disbelieve the same . It is well settled law that if a witness is not cross examined on the facts deposed by that witness during his examination in chief, that facts cannot be rejected and has to be believed . That being so, there would be no difficulty to place reliance on the testimony of PW6 and PW7 particularly in respect of the fact that incident took place.
63 Moreover, testimony of PW6 and PW7 further finds corroboration from the testimony of PW1 R.K. Meena (Chief Manager), PW8 Sandeep ( who was sweeper) , PW10 Rajender Prasad (Peon) and PW16 Dinesh Kumar (Dy. Manager). Here it would be suffice to mention the testimony of PW16 Dinesh Kumar, who is the complainant also, as other witnesses i.e PW1, PW8 and PW10 have deposed on the lines of SC No.87/14 State vs Pappu Bihari @etc (Page 24 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC PW 16.
64 PW16 Dinesh Kumar deposed that on 17.11.2008, he was posted as Dy. Manager at above said bank . On that day, he reached at the bank at about 9:00 am and at that time, peon Rajinder ((PW10) and sweeper Sandeep(PW8) were present outside the bank. He had given his keys to Peon Rajinder (PW10) for opening the main door of the branch. After opening the lock of the door, they all entered the bank. Rajinder(PW10) and Sandeep (PW8) got engaged in sweeping and cleaning the bank premises and Dinesh Kumar (PW16) opened his computer system. Four more persons entered the bank . Sandeep (PW8) told them that the time of opening of the bank has not started and they should come later. On this , those boys aimed pistol towards Sandeep(PW8) and snatched his mobile and some papers from his pocket. Two boys were having pistols in their hands. In meanwhile, few customers of the bank has also already entered the bank. Those four boys had started pushing him, Sandeep and other customers of the bank on the point of pistol towards the corner of the bank on the back side. While pushing SC No.87/14 State vs Pappu Bihari @etc (Page 25 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC them, accused persons were also hitting them with slaps and punches and they were threatening them on the point of pistol. They were made to sit in the corner on the back side of the bank. PW16 further deposed that accused persons were threatening them and beating them and were asking for keys . Accused persons had snatched the mobile phones of all bank employees and customers . Accused persons had taken out the cash from the chest room of the bank and kept the cash in two bags. On the point of revolver, accused persons had dragged all of them to the chest room and locked them in the chest room and bolted chest room from outside and run away with cash from there. They come out from chest room through exhaust fan hole and came into the locker room and raised hue and cry. Public had collected there and police had also reached there. Clerk Ram Chander Jindal had opened the lock of the locker room with keys. PW1, PW8 and PW10 have also deposed to the same effect.
65 Despite lengthy and searching cross examination of said witnesses nothing could be elicited from the mouth of the witness to disbelieve the SC No.87/14 State vs Pappu Bihari @etc (Page 26 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC case of prosecution regarding occurrence of incident. No material contradiction could be highlighted in their testimony to reject the same. Most of the cross examination is on the point of identification of the accused persons during TIP of accused persons and their identification before the court, which, I would be taking a little further.
66 Aforesaid witnesses are referring the presence of Ram Chander Jindal . Said Ram Chander Jindal has been examined as PW9 by the prosecution. He deposed that on 17.11.2008, he was posted as clerk at SBBJ, Badli Indl. Area. On that day at about 10:05 am, he reached at the bank. He found that nobody was there in the bank. He had found one key ring with keys which was lying on the counter in the bank. There was a silence. He heard the low noise of knocking and some breaking. He is shown to have called the PCR .
67 PW13 Ct Kiran DD writer has recorded DD no. 25 A ExPW13/A to the effect that " State Bank of Bikaner and Jaipur, Indl. Area Main Road Bank Ke Cash room mein tod phod kar rahe hai". PW14 Inspector S.Gade , Crime team SC No.87/14 State vs Pappu Bihari @etc (Page 27 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC incharge is shown to have reached the spot along with crime team on receipt of call from PCR . He inspected the spot and prepared report ExPW14/A. PW20 HC Mahender Singh, duty officer proved the registration of FIR ExPW20/A pertaining to present incident.
68 PW33 Inspector Sanjeev Kumar deposed that on 17.11.2008, on receipt of DD no. 25 B regarding breaking of cash room at State Bank of Bikaner and Jaipur , Bawana Road Indl Area , he reached at the spot and found S.I Bim Singh, ASI Joginder along with staff of bank present there. He recorded statement of Dinesh Kumar ExPW16/A . He prepared rukka ExPW33//A and got registered the FIR.
69 From my aforesaid discussion , it stands proved that on 17.11.2008 , Dacoity took place in State Bank of Bikaner & Jaipur Branch situated at Bawana Road, Delhi.
ii) If the answer to the first question is in affirmative, whether the accused persons were involved in the commission of the offence ?
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70 Now, this takes me to the next fact in issue
i.e who actually committed the offence. There are five accused persons facing trial in the present case. I would be discussing the role of each of the accused person separately.
Accused Pappu Bihari :
71 PW1 Rajender Kumar Meena deposed that on 17.11.2008 he was posted as Branch Manager at SBBJ, Badli Industrial Area , Delhi . On that day at about 09:15 or 09:30 am, he came to the aforesaid bank. 2-3 customers along with some officials of the bank were also there. When he reached at the channel gate i.e entrance gate at First floor, someone hit him backside of head with hand and subsequently, he was kicked in his abdomen by same person who had hit him with hand. He fell down. That person kicked him on his thighs and abdomen with his legs and put pistol on his temple region when he was lying on the floor. That person took the mobile from him. PW1 further deposed that he could also see that Neeru(PW6), Sandeep(PW8), Dinesh(PW16) along with SC No.87/14 State vs Pappu Bihari @etc (Page 29 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC 2-3 customers were made to sit in one corner of the bank under the range of pistol and one person was also there holding pistol . PW1 was also made to sit along with other hostages . He saw that the persons who was covering the officials and customers, on the point of pistol , demanded keys of strong room from them. He asked Sandeep(PW8) to take keys and get the strong room opened so as to avoid mishappening and loss of life. Sandeep (PW8) then went towards the strong room with two persons who were at the strong room entrance and at the counter. They all were made to sit at that corner till the time they brought the cash from the strong room. Thereafter, on the point of pistol , they all were made to go inside the strong room in a queue. They all were locked inside the chest room situated in the strong room/locker room. PW1 further deposed that they came out of the chest room to the main strong room through exhaust fan hole and started hitting the door of the strong room. 4-5 minutes thereafter , their staff official Jindal came and opened the strong room with the help of keys . By that time police also came there. He checked the cash and found that a sum of Rs 23,78,500/- was missing.
SC No.87/14 State vs Pappu Bihari @etc (Page 30 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC 72 PW1 further deposed that he can identify those persons. There is court observation that "
witness has pointed out towards accused Pappu Bihari and accused Mannan as the two persons who had gone inside the strong room along with Sandeep (PW8) . Witness also states that he does not know these persons and accused Baljinder by name. Witness has correctly identified said two accused persons. Witness also states that he had identified the accused Pappu Bihari in TIP also)". Even during his cross examination done on behalf of the accused Pappu Bihari , PW1 replied that he identified accused Pappu Bihari and Amit during investigation . He denied the suggestion that he identified the accused Pappu Bihari on asking of IO or IO had shown the photographs of the accused persons to him in the police station or accused persons were shown to him prior to TIP proceedings or he is a false witness.
73 It is true that there was some contradictions about the age of the accused persons involved in the commission of the crime but in my opinion that is not material one and would not affect the case of the prosecution.
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74 Record would indicate that accused Pappu
Bihari was put to TIP proceedings. TIP proceedings are not in dispute. Vide statement dated 20.09.2014 , TIP proceedings of accused Pappu Bihari was admitted and proceedings have not been disputed. TIP of accused Pappu Bihari are ExAdv 4 (ExPW33/D). TIP proceedings would indicate that PW1 has identified accused Pappu Bihari in the TIP proceedings also.
75 Further, PW16 Dinesh Kumar deposed that they all were made to sit in the corner near the gate of bathroom inside the bank. He identified the accused Pappu Bihari who had moved towards corner along with accused Satte and Mannan. He deposed that accused persons were threatening them and beatings them. He denied suggestion during his cross examination that he has seen accused Pappu Bihari first time. He categorically stated that he has seen them in bank premised. He further denied suggestion that accused persons were shown to him on the date when he deposed before the court and their names were told to him . He admitted that at the time of making the statement ExPW16/A to the police, he had not disclosed the complete description of the accused.
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He denied that police had not shown the photographs of the accused persons or sketch of any person was prepared in his presence. He further denied the suggestion that he had identified accused Pappu Bihari on the asking of the police.
76 PW5 Ct Ashkaran Singh deposed that on 13.1.2009, he along with Ct Deepti, IO Insp. Sanjeev Kumar and accused Pappu Bihari reached at State Bank of Bikaner & Jaipur Branch situated at Suraj Park, S.P Badli. Accused Pappu Bihari pointed out that bank and claimed that in that bank he had committed the robbery with his associates. Pointing out memo of accused Pappu Bihari is ExPW5/A. 77 Accused Pappu Bihari is shown to have been arrested in FIR no.449/2008 P.S R.K Puram . PW17 S.I Sukhbir Singh deposed that on 26.12.2008, accused Pappu Bihari was arrested in FIR no.449/2008 P.S R.K Puram wherein he had made a disclosure statement Ex PW17/A regarding his involvement along with his co-accused persons in the present case . PW17 has not been cross examined by the ld defence counsel despite opportunity.
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78 From the testimony of PW1 and PW16
coupled with the TIP proceedings , identification of the accused Pappu Bihari stands proved . Prosecution has been able to prove that accused Pappu Bihari was involved in the commission of crime .
Accused Mannan@Monu 79 PW1 R.K Meena has identified accused Mannan . The court observation made during the testimony of PW1 has already been referred herein above, which reads "witness has pointed out towards accused Pappu Bihari and accused Mannan as the two persons who had gone inside the strong room along with Sandeep (PW8). Witness also states that he does not know these persons and accused Baljinder by name . Witness has correctly identified said two accused persons) ...." . PW1 was cross examined at length. Since the occurrence, as indicated above, stands established, therefore, cross examination pertaining to identification of the accused is being taken up. During cross examination on behalf of accused Mannan, PW1 replied that accused Mannan is of fair complexion and in his statement he had only given the age and height and not the features of the accused. In reply to a question put SC No.87/14 State vs Pappu Bihari @etc (Page 34 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC to him by ld defence counsel, PW1 further replied that he had identified accused Mannan during the TIP proceedings in Tihar Jail . Record indicates that said fact was cross checked by the court as there is observation of the court in this regard also .
80 PW1 R.K Meena has denied the suggestion that he had not identified accused Mannan during TIP proceedings. He further replied that as far as he remember, accused Mannan was wearing Track suit but he does not remember its colour. He further replied that he came to know the name of the accused Mannan on the same day when had identified him in TIP. He further denied the suggestion that he had identified accused Mannan at the instance of Insp. Satyavir Singh .
81 It is true that during the testimony of PW7 V.K Sharma and PW8 Sandeep , it has come on record that photographs of accused Mannan were shown to them , therefore, identification of the accused Mannan by them during TIP cannot be given much weightage .But even if their testimony with regard to the identification of the accused is ignored still , the identification of accused Mannan @ Monu by other witnesses I.e PW1 R.K Meena and PW16 Dinesh Kumar cannot be rejected.
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82 PW16 Dinesh Kumar deposed that accused
Mannan @ Monu, Satprakash @ Satte and Pappu Bihari,
present in the court, had moved towards counter. PW16 correctly identified aforesaid accused persons including accused Mannan @ Monu. PW16 has categorically stated that accused persons were threatening them and were giving beatings to them. He further deposed that he had gone to Tihar Jail for the identification of accused Mannan @ Monu and had identified accused Mannan in TIP proceeding ExADV 5 ( ExPW7/A). Aforesaid TIP proceedings would indicate that besides PW1 R.K Meena, accused Mannan @ Monu was identified by PW16 Dinesh Kumar also .
83 PW16 was cross examined by ld defence counsel. During his cross examination, he denied the suggestion that accused Mannan was shown to him by crime branch, SOS office, Ashram or on the day of TIP and before TIP, the photographs of accused Mannan were shown to him. He further denied the suggestion that he identified the accused Mannan before the court yesterday as he was shown their photographs by the police outside the court or accused Mannan did not commit any robbery on the said date, time and place or that accused Mannan was not present in the bank on that day. Nothing could be brought from the mouth of PW1 and PW16 during their cross examination which may be sufficient to reject their version SC No.87/14 State vs Pappu Bihari @etc (Page 36 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC qua identification of the accused Mannan @ Monu.
84 From the testimony of PW1 and PW16, as indicated above, coupled with the TIP proceedings , identification of the accused Mannan @ Monu also stands proved. Prosecution has been able to prove that accused Mannan @ Monu was also involved in the commission of crime .
Accused Amit @ Sonu @Chikna 85 PW1 R.K Meena and PW16 Dinesh Kumar have identified accused Amit @ Sonu @ Chikna before the court as the culprit who was involved in the commission of crime. During examination of PW1 R.K Meena , there is court observation " ( witness has indicated towards accused Amit@ Sonu@ Chikna and has stated that during the time of robbery, he had also come inside the bank and he had been called inside the bank by accused Satte. Witness has correctly identified accused Amit @ Sonu). PW1 was cross examined by the ld defence counsel. During cross examination PW1 denied the suggestion that he identified accused Amit @ Sonu on the asking of IO or that he was not present in the alleged offence of SC No.87/14 State vs Pappu Bihari @etc (Page 37 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC robbery. He further denied the suggestion that all accused persons were shown to him prior to TIP proceedings.
86 Accused Amit @ Sonu @ chikna was identified by PW1 R.K Meena and PW8 Sandeep during TIP proceedings ExADV 2 (ExPW32/I ). Identification of the accused Amit @ Sonu @ Chikna by two witnesses i.e PW 1 R.K Meena and PW8 Sandeep during TIP becomes a substantial piece of evidence in the background of the fact that accused was identified subsequently before the court by one of the witness.
87 PW 15 Insp. Pramod Joshi deposed that on 10.2.2009, accused Amit @ Sonu @ Chikna was arrested vide kalandra u/s 41.1 CrPC, DD no.19 A P.S Lodhi Colony, New Delhi. During interrogation, accused confessed his involvement in the present case along with his associates. PW15 recorded disclosure statement of accused Amit @ Sonu @ Chikna and information was given to P.S S.P Badli about his arrest and disclosure. During cross examination of PW15, on behalf of accused Amit @ Sonu @ Chikna , accused has SC No.87/14 State vs Pappu Bihari @etc (Page 38 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC not disputed his arrest vide aforesaid Kalandra.
88 PW19 Ct. Maya deposed that on 11.2.2009, she was posted as DD writer at P.S S.P Badli . At about 12:20 pm, information was received through telephone from S.I Pramod Joshi of P.S Lodhi Colony about the arrest of accused Amit @ Sonu s/o Ishwar Das vide Kalandra 41.1. CrPC vide DD no.19 A dt. 10.2.2009 and about the disclosure of present FIR by accused Amit. PW19 was not cross examined by the ld defence counsel despite opportunity.
89 In the light of my aforesaid discussion, the involvement of accused Amit @ Sonu @ Chikna in the present case also stands established.
Accused Sat Parkash @ Satte 90 PW1 R.K Meena deposed that he had gone to Tihar Jail for identification and had identified accused Satprakash @ Satte as a person who had initially hit him with his hand on the backside of his head. Accused Satprakash@ Satte had also kicked him on his abdominal region and had snatched his mobile SC No.87/14 State vs Pappu Bihari @etc (Page 39 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC phone. PW1 further deposed that accused Satprakash @ Satte had also put pistol on his temple region. PW1 was cross examined by ld defence counsel. During his cross examination, he denied the suggestion that he had seen accused Sat Prakash @ Satte in the court for the first time. He denied that he had not seen accused Satprakash @ Satte prior to TIP proceedings and stated that he had seen him at the time of robbery.
91 PW16 Dinesh Kumar during his examination in chief pointed out towards accused Satte and stated that he was the person who had snatched his mobile and papers from his pocket .He deposed that accused Satte was carrying a pistol at the time of robbery. Accused Satte, accused Pappu Bihari and accused Mannan moved towards the counter. Accused Satte immediately returned towards him and asked him as to how much cash was available in the bank. Accused Satte had hit him and snatched keys of the bank from him. He further deposed that he had identified accused Satte in TIP proceedings. During his cross examination by accused Satprakash @ Satte, he denied the suggestion that accused persons SC No.87/14 State vs Pappu Bihari @etc (Page 40 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC were identified by him at the instance of the police or they were shown to him in the police station prior to TIP . He further denied the suggestion that he had wrongly identified the accused as robbers.
92 Record would indicate that accused Satprakash @ Satte was also put to TIP proceedings. TIP proceedings are not in dispute. Vide statement dated 20.09.2014 TIP proceedings of accused Satte was admitted and proceedings have not been disputed. TIP of accused Satte is ExAdv 3 (ExPW8/A). TIP proceedings would indicate that PW1 R.K Meena, PW8 Sandeep and PW16 Dinesh Kumar have identified accused Satprakash @ Satte during TIP .
93 PW24 S.I Chander Shekhar deposed that on 24.1.2009, accused Sat Prakash @ Satte were in custody in FIR no. 24/09 P.S Hauz Khas and his disclosure statement was recorded by Insp. Yogesh. Accused had claimed his involvement in the present case of bank robbery. PW24 was not cross examined by the accused despite opportunity.
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94 PW27 Insp. Yogesh Mahotra deposed that
accused Sat Prakash @ Satte was arrested in FIR no. 24/09 P.S Hauz Khas wherein he disclosed about his involvement in the present case. His disclosure statement ExPW27/A was recorded. Accused Satprakash @ Satte has not disputed his arrest in that case and of having made the disclosure statement because not even a suggestion was put during the cross examination of PW27 to that effect.
95 This all indicate and highlight the involvement of accused Satprakash @ Satte in the dacoity which took place on 17.11.2008.
Accused Baljinder Singh @ Balvinder Singh @ Satnam 96 During examination in chief of PW1 R.K Meena , there is court observation " witness has pointed out towards accused Baljinder @ Satnam and has stated that he is the one who was covering all the other bank employees and customers and later on he also was holding the pistol. Witness also states that at that time he was clean shaven and not a Sikh but he has identified him. Witness has correctly identified accused Baljinder) ( witness also states that he had gone to Jail for TIP of accused Baljinder also but at that time he could not identify him SC No.87/14 State vs Pappu Bihari @etc (Page 42 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC due to shock and fear)". PW1 R.K Meena was cross examined by ld defence counsel. During his cross examination , he denied the suggestion that on 26.4.2011, on the pointing out of Insp. Satyavir Singh he had identified accused Baljinder in court. He had not given any statement to the IO regarding he being in shock and fear and due to that failure in identification of some of accused persons. He had not stated even to the Magistrate about this fact. He denied the suggestion that he had identified accused Baljinder at the asking of IO Insp. Satyavir Singh or accused Baljinder was never present on 17.11.2008 in the bank and never committed any such act.
97 PW8 Sandeep deposed that accused Baljinder , present in the court , had shown him gun and also asked about the cash which was available in the bank at the time of incident. He further deposed that accused Baljinder then asked for the keys from Dinesh Kumar. Accused Baljinder had beaten up Dinesh Kumar and snatched keys of cash room from him. Accused Baljinder then asked for about the Head cashier Sh V.K Sharma. Accused Baljinder had taken him and Dinesh Kumar to the cash room to open the SC No.87/14 State vs Pappu Bihari @etc (Page 43 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC locker . Accused Baljinder had beaten him at that time. Locker was opened and accused Baljinder and he had taken out the cash from the locker and put the cash in the bag.
98 PW8 was cross examined on behalf of accused Baljinder. On the point of identification of accused Baljinder he denied the suggestion put by the ld defence counsel. Nothing could be elicited from the mouth of this witness to disbelieve his version of having identified accused Baljinder as a person who was involved in the commission of crime, before the court .
99 Accused Baljinder was also put to TIP proceedings. TIP proceedings are not in dispute. Vide statement dated 20.09.2014 , TIP proceedings of accused Baljinder was admitted and proceedings have not been disputed. TIP of accused Baljinder are ExAdv 6 . As per the TIP proceedings, accused Baljinder refused to join the same on the ground that his photographs have already been shown to the witnesses. As indicated herein above, accused Baljinder was identified before the court by PW1 R.K SC No.87/14 State vs Pappu Bihari @etc (Page 44 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC Meena and PW8 Sandeep. Accused has failed to bring any material on record to show that his photographs were actually shown to aforesaid witnesses as claimed by him. That being so, an inference shall be drawn against the accused Baljinder that he refused to join the TIP proceedings without any reasonable cause and there was every possibility of him having identified by the witnesses , had he joined the TIP proceedings .
100 One of the argument of the accused persons was that as per the story of prosecution at the time of incident, few customers were present over there but no such customer has been made a witness in the present case. It was argued that in the absence of independent corroboration, the testimony of bank officials cannot be believed.
101 The aforesaid contention of ld counsel for the accused persons does hold any water . It is settled law that the conviction can be based wholly on the basis of even one witness if it is reliable. Question as to whether what is the degree of corroboration is required in each individual case, depends upon facts and circumstances of the case .
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102 In Jagdish Prasad vs. State of M.P (AIR
1994 SC 1251) Hon'ble Supreme Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872. But, if there are doubts about the testimony the courts will insist on corroboration. It is not the number, the quantity, but the quality that is material. The time- honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise. The position has been reiterated in large number of cases. Reference may be made to Joseph v. State of Kerala (2003 (1) SCC 465), Yakub Ismailbhai Patel v. State of Gujarat (2004 (12) SCC 229), Bhimapa Chandappa Hosamani and Ors. v. State of Karnataka (2006 (11) SCC 323) and Kunju @ Balachandran v. State of Tamil Nadu [2008 (2) SCC 151] .
103 In the present case, public witnesses
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examined by the prosecution are the bank officials . There presence in the bank at the time of incident cannot be doubted. In my opinion all these witnesses are independent witnesses. It is also not the case of the accused persons that these witnesses are inimical towards the accused persons. Accused persons have miserably failed to explain as to why these witnesses would depose falsely against them in respect of their identification and will implicate them in a case of dacoity.
104 The next limb of argument was that accused Satprakash @ Satte and Amit @ Sonu@ Chikna have already been acquitted in a case FIR bearing No. 1848/08 registered at P.S Sahibabad , Ghaziabad , UP pertaining to the incident of the same date and time . According to the accused persons how they can be present at two different places at same time. The contention of accused persons is liable to be rejected for simple reasons that in that case registered at P.S Sahibabad, both the accused persons have been acquitted . It is evident that in that case material public witnesses have failed to identify accused persons regarding their involvement in SC No.87/14 State vs Pappu Bihari @etc (Page 47 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC commission of said crime . That judgment tells that accused Satprakash @ satte and Amit @ Sonu @ Chikna were not involved in that case . It is not the case that they have been given benefit of doubt or they have been acquitted on technical ground. There is a clear cut finding of the court that there is no evidence to support the case of the prosecution to establish involvement of accused Satprakash @ Satte and Amit @ Sonu@ chikna in that case. That being so, it would be difficult to hold that on 17.11.2008 at about 09:30 am , accused Satprakash @ Satte and Amit @ Sonu @ Chikna were present within the jurisdiction of P.S Sahibabad. Therefore, showing their involvement itself in the said case cannot be a ground to presume their innocence in the present case.
105 Accused Amit @ Sonu @ Chikna has examined Ms Rekha as DW2 in his defence who tried to bring on record that during the period between 14.11.2008 till 17.11.2008( midnight) accused Amit @ Sonu @ Chikna was with her and they had gone to Darshan of Mata Vaishno Devi. The testimony of DW2 also could not save accused Amit @ Sonu for two reasons . Firstly, except the bald deposition no further SC No.87/14 State vs Pappu Bihari @etc (Page 48 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC evidence has been brought on record in support of her version. No documentary proof has been brought on record in respect of their alleged visit. As per DW2 , she is friend of accused Amit @ Sonu @ Chikna , therefore, being interested witness she would naturally make an effort to save her friend. DW2 deposed that they stayed in a Hotel in Katra but even the name of that hotel was not disclosed . Secondly, by filing the certified copy of judgment FIR bearing No. 1848/08 registered at P.S Sahibabad , Ghaziabad , UP, an attempt was made by accused Amit @ Sonu @ Chikna that on17.11.2008 at about 09:30 am he was present within the jurisdiction of P.S Sahibabad but as per testimony of DW2 , he had gone for the Darshan of Mata Vaishno Devi which is contrary to the stand taken by accused Amit @ Sonu @ Chikna. In these circumstances, the testimony of DW2 cannot be relied upon .
106 The next argument of ld counsel for accused Mannan @ Monu was that in case two witnesses have identified the accused persons and two-three have failed to identify then it shall be presumed that accused persons have been identified SC No.87/14 State vs Pappu Bihari @etc (Page 49 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC by none. While arguing so, he has placed reliance upon the cases of Budhsen and Asharfi & ors (Supra). This argument also is not tenable. As per as the case of Budhsen(Supra) is concerned there is no doubt about the law laid down by Hon'ble Supreme Court in respect of TIP proceedings but the facts and circumstances of present case are different and the said judgment would not help the accused persons.
107 As far as the judgment of Asharfi ( Supra ) is concerned, it appears that ld defence counsel has missed the dictate of the judgment. Para 48 of said judgment, which was pressed into service by ld defence counsel, reads "It has been suggested that since in the jail parade the appellant Asharfi was identified by only seven out of twelve witnesses and Ramdhani by only six out of nine , in judging their guilt we should counter- balance the identifiers by those who failed to identify them . The decision in Sunder vs State: AIR 1947 All 809 , with which we are in respectful agreement, shows the argument to be ill- conceived. Therein their lordships stated that it cannot be said that number of witness who failed to identify an accused should be set -off against those who identified him so that if an accused was identified by two but not by two others he should be deemed to have been identified by none and they emphasised that a witness should be judged on the strength of what he himself has seen and SC No.87/14 State vs Pappu Bihari @etc (Page 50 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC not on the inability of somebody else to see it."
108 Above referred judgment never says that in case accused has been identified by two witnesses and two witnesses have failed to identify that accused then it shall be presumed that accused has been identified by none and accused should be set off against those who identified him. Rather, said judgment and also the judgment referred i.e Sunder Vs State : AIR 1957 All 809 says that such an argument is ill-conceived. That being so, non identification of the accused persons by some of the prosecution witnesses would not affect the case of the prosecution.
109 The purpose of pre-trial identification evidence is to assure the investigating agency that the investigation is going on in the right direction and to provide corroboration of the evidence to be given by the witness or victim later in court at the trial.
110 In Jana Yadav vs. State of Bihar, (2002) 7 SCC 295, para 38, the following conclusion is relevant:
SC No.87/14 State vs Pappu Bihari @etc (Page 51 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC "Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law.
111 In the present case, all the accused persons except accused Baljinder( who refused to TIP proceedings but was identified before the court) have been identified during TIP proceedings by prosecution witnesses as discussed herein above and subsequently they were identified by those witnesses before the court also. This aspect of the case cannot be ignored. In my opinion identification of accused persons who are not known to the victims or witnesses during TIP proceedings coupled with their identification before the court becomes a substantial piece of evidence against the accused persons for the purpose of fixing their identity as a person involved in the SC No.87/14 State vs Pappu Bihari @etc (Page 52 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC commission of the crime.
112 Here it is pertinent to mention that all the accused persons have been charged for the offences u/s 395/342/34 IPC r/w section 397 IPC. There is nothing on record which could even suggest that except accused Satprakash @ Satte and Baljinder Singh @ Balwinder Singh @ Satnam @ Satta@ Bijender@ Balli were armed with deadly weapons or pistol. According to the testimonies of prosecution witnesses particularly PW1 R.K Meena and PW16 Dinesh , accused Satprakash @ Satte and Baljinder are shown to have used pistol at the time of committing the offence . The role of other accused persons have already been referred herein above . In these circumstances, the provision of section 397 IPC are attracted only against the accused Satprakash @ Satte and Baljinder Singh @ Balwinder Singh @ Satnam @ Satta@ Bijender@ Balli.
113 In the light of aforesaid discussion, Court is of the view that prosecution has been successful in establishing the guilt of the accused persons namely Pappu Bihari, Mannan @ Monu and Amit @ Sonu @ SC No.87/14 State vs Pappu Bihari @etc (Page 53 of 60 ) D.O.D 22.1.2015 FIR No. 477/2008 P.S S.P Badli u/s 395/342/397/34 IPC Chikna in respect of offences u/s 395/342/34 IPC and of accused Satprakash @ Sattte and Baljinder Singh @ Balwinder Singh @ Satnam @ Satta@ Bijender@ Balli in respect of offences u/s 395/342/34 IPC r/w 397 IPC. Accordingly , accused Pappu Bihari, Mannan @ Monu and Amit @ Sonu @ Chikna stands convicted for offences u/s 395/342/34 IPC and accused Satpraksh @ Sattte and Baljinder Singh @ Balwinder Singh @ Satnam @ Satta@ Bijender@ Balli stands convicted for the offences u/s 395/342/34 IPC r/w 397 IPC.
Announced in the open (Rajesh Kumar Goel)
Court today i.e 22.1.2015 ASJ-5, North
Rohini Court
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IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH), ROHINI , DELHI SESSION CASE NO. : 87/14 UID NO . : 02404R0110012009 FIR No : 477/2008 P. S : S.P Badli u/s : 395/342/397/34 IPC The State versus 1. Pappu Bihari S/O Ramanuj Bhardwaj R/O H.No. 217, Kothi Colony Tahir Pur, Delhi.
2. Mannan@ Monu S/O Mohd Ali R/O Village Rahpura Chaudhry P.s Ijjat Nagar, District Barely, UP .
3. Amit @ Sonu @ Chikna S/O Iswar Singh R/O A2/338 Nand Nagri Delhi.
4. SatPrakash @ Satte S/O Raja Ram R/O H.NO 220 , Jai Hind Kusth Ashram Tehpur Shadra , Delhi.
5. Baljinder Singh @ Balwinder Singh @ Satnam @ Satta@ Bijender@ Balli S/O Saudagar Singh R/O Vill Khatran P.S Jhander Distt Amritsar, Punjab.
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ORDER ON SENTENCE
24.1.2015
Present: Sh Ashok Kumar , Ld Additional Public Prosecutor
for the state.
All five convict persons produced from JC . Sh Kashmir Singh ld counsel for convict Amit@ Sonu @ Chikna and Pappu Bihari present. Sh R.P Tyagi, ld counsel for convict Mannan@ Monu Sh Kundan Kumar, ld Amicus Curiae for convict Baljinder Singh @ Balwinder Singh @ Satnam @ Satta@ Bijender@ Balli and convict Satprakash @ Satte present.
I have heard both the sides on the quantum of sentence. I have also perused the record.
Ld counsel for the convict persons submitted that convict Pappu Bihari , Mannan @ Monu, Amit @ Sonu @ Chikna and Satprakash @ Satte are in JC for the last near about six years and convict Baljinder Singh @ Balwinder Singh @ Satnam @ Satta@ Bijender@ Balli is in JC for the last near about 4 ½ years. A request has been made to take a lenient view against all convict persons stating that they have family to maintain . It was further requested that convict persons may kindly be considered for the period already undergone by them.
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On the other hand, ld Additional P.P for state has argued for maximum sentence .
After considering the entire facts and circumstances of the present case and the fact that convict persons were facing trial for the last more then six years , they are sentenced as follows:
Accused Pappu Bihari is sentenced :
u/s 342/34 IPC : Six months R.I along with fine of Rs 100/- in default of payment of fine one day S.I .
u/s 395/34 IPC : Seven years R.I along with fine of Rs 1000/- in default of payment of fine Ten days S.I .
Accused Mannan @ Monu is sentenced :
u/s 342/34 IPC : Six months R.I along with fine of Rs 100/- in default of payment of fine one day S.I .
u/s 395/34 IPC : Seven years R.I along with fine of Rs 1000/- in default of payment of fine Ten days S.I .
Accused Amit @ Sonu @ Chikna is sentenced :
u/s 342/34 IPC : Six months R.I along with fine of Rs 100/- in default of payment of fine one day S.I .
u/s 395/34 IPC : Seven years R.I along with fine of Rs 1000/- in default of payment of fine Ten days S.I .
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Accused Satprakash @ Satte is sentenced :
u/s 342/34 IPC : Six months R.I along with fine of Rs 100/- in default of payment of fine one day S.I .
u/s 395/34 r/w 397 IPC : Seven years R.I along with fine of Rs 1000/- in default of payment of fine Ten days S.I .
Accused Baljinder Singh @ Balwinder Singh @ Satnam @ Satta@ Bijender@ Balli , is sentenced :
u/s 342/34 IPC : Six months R.I along with fine of Rs 100/- in default of payment of fine one day S.I .
u/s 395/34 r/w 397 IPC : Seven years R.I along with fine of Rs 1000/- in default of payment of fine Ten days S.I .
Fine not paid.
Benefit of section 428 CrPC shall be given to the convict persons for the period already undergone by them during the trial, as per rules.
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All the sentences shall run concurrently.
The convict persons have been informed that they have a right to prefer an appeal against this judgment . They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37,Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict persons free of cost.
Vide separate order, the application moved by the State Bank of Bikaner & Jaipur has been disposed off.
At this stage, convict Baljinder has moved an application making a request to remove the handcuff stating that the order or handcuffing was passed by this court.
Since, the case has already been decided, therefore, the order of this court , if any , regarding handcuffing of convict Baljinder is recalled and it is directed that handcuff be removed, if not directed by any other court.
File be consigned to record room after necessary compliance.
( Rajesh Kumar Goel)
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ASJ-5, North /24.01.2015
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