Delhi District Court
State vs Ishwar Etc on 6 April, 2024
IN THE COURT OF SH. VIRENDER KUMAR KHARTA,
ADDITIONAL SESSIONS JUDGE (FTC)02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:
(Sessions case no. 27195/2016)
FIR No. 162/2011
Police Station Kotwali
Chargesheet filed under Sections 395/397/34 IPC
Charge framed against accused Ishwar @ 395/34 IPC, 394/34 IPC.
Rahul, Deepak Aggarwal, Karan Kapoor,
and Rajan Arora @ Sunny.
Charge framed against accused Punit 395/34 IPC, 394/34 IPC
Arora @ Pinu. & 397 IPC.
State Versus 1. Ishwar @ Rahul,
S/o Sh. Sankar Lal,
R/o F39, Gali No. 1,
Pusta Road, Karawal Nagar,
Delhi.
2. Deepak Aggarwal,
S/o Sh. Mohan Lal,
R/o D1031/27, Gali No. 7,
Khajoori Khas, Delhi.
3. Karan Kapoor,
S/o Sh. Sanjay Kapoor,
R/o F19/55, Sector15,
Rohini, Delhi.
4. Rajan Arora @ Sunny,
S/o Sh. Pawan Kumar Arora,
R/o H. No. 24, Dilip Vihar Extn
Nilothi Extension, Nangloi,
Delhi.
State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 1 of 39
5. Punit Arora @ Pinu,
S/o Sh. Bhagwan Dass,
R/o B184, Upkar Colony,
Burari, Delhi.
...Accused persons.
Date of Institution of case 28.11.2011
Date of Arguments 06.04.2024
Judgment reserved on 06.04.2024
Judgment pronounced on 06.04.2024
Decision Acquitted
JUDGMENT
1. Accused persons namely Ishwar @ Rahul, Deepak Aggarwal, Karan Kapoor, Rajan Arora @ Sunny and Punit Arora @ Pinu are facing trial under Sec. 395/34 IPC, 394/34 IPC. Additionally, accused Punit Arora @ Pinu is also facing trial under Sec. 397 IPC. The prosecution story is that on 25.07.2011, at about 09:00 pm at Geeta Colony Flyover to side of Geeta Colony, Delhi all the abovesaid accused persons conjointly committed dacoity on complainant PW4 Sh. Sunil Kumar Verma, by robbing of 300400 gm gold, two pairs of gold ear rings, two gold pendant and cash about Rs. 24,000/ . Further on the abovesaid date, time and place, all of them in furtherance of their common intention while committing dacoity voluntarily caused simple hurt to the complainant Sh. Sunil Kumar Verma and at that time accused Punit Arora @ Pinu and Nitin (since not arrested) used deadly weapon State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 2 of 39i.e. Katta in committing dacoity on complainant Sh. Sunil Kumar Verma.
2. The brief facts born out from the record of the case are that on 25.07.2011, on receiving DD No. 68B, Ex. PW6/A regarding robbery of jewelery on the point of country made pistol by five persons, PW6 SI Abdul Wahid alongwith PW11 Ct. Ashok Kumar reached Geeta Colony Flyover where they found one motorcycle bearing registration no. DL 7SBC 7522 was lying on the roadside and they came to know that injured had already been taken to Trauma Centre by PCR Van. After leaving Ct. Ashok Kumar at the spot, PW6 SI Abdul Wahid reached Sushrut Trauma Centre where he met with injured Sunil Kumar Verma. PW6 SI Abdul Wahid recorded statement of complainant PW4 Sh. Sunil Kumar Verma, Ex. PW4/A. On the basis of statement of PW4 complainant Sh. Sunil Kumar Verma, SI Abdul Wahid prepared rukka and got the present FIR registered under Sec. 392/394/397 IPC at PS Kotwali through Ct. Ashok Kumar. After registration of FIR, further investigation of the present case was entrusted to SI Jagdish Yadav. Thereafter, IO/SI Jagdish Yadav prepared site plan at the instance of complainant Sh. Sunil Kumar Verma and seized the motorcycle bearing registration no. DL 7SBC 7522.
3. During investigation, on 01.09.2011, DD No. 20B was received at Police Station regarding arrest of accused persons namely Ishwar @ Rahul and Deepak Aggarwal by Crime Branch who had made disclosure statement regarding their involvement in the present case. Thereafter, IO/SI Chander Singh, formally arrested State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 3 of 39accused Ishwar @ Rahul and Deepak Aggarwal in the present case and recorded their disclosure statements and from their disclosure statement names of coaccused Rajan Arora @ Hunny and Karan @ Sona were revealed, who were found to be in judicial custody in another case FIR No. 346/2011, PS Prashant Vihar. On 06.09.2011, accused Rajan Arora and Karan @ Sona were formally arrested by IO/SI Chander Singh in the present case and he recorded their disclosure statements. During investigation, IO/SI Jagdish Yadav filed an application for PC remand of accused persons namely Ishwar @ Rahul, Rajan Arora @ Hunny, Karan @ Sona and Deepak Aggarwal and he also recorded their disclosure statements. During PC remand of accused persons, IO tried to recover the case property and other accused persons but neither the case property recovered nor other coaccused could be apprehended. During investigation, IO/SI Jagdish Yadav received information regarding arrest of coaccused Puneet Arora @ Pinu in a snatching case of PS Dwarka South vide DD No. 49A. Thereafter IO filed an application for his production warrant and formally arrested accused Puneet Arora @ Pinu in this case. IO also obtained PC remand of accused Puneet Arora and efforts were made for recovery of case properties and apprehension of remaining accused persons but could not succeed. IO/SI Jagdish Yadav also collected copy of vouchers/invoices from the complainant vide which he had collected the jewelery/gold from the Jewellers Shop. IO also collected copy of medical papers of complainant and obtained opinion regarding nature of injury on MLC of complainant which State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 4 of 39was opined as 'simple'. Other proceedings during the investigation were also conducted by the IO. On completion of investigation, chargesheet was filed by the IO before the Court through the SHO.
4. Vide order dated 2 5 . 1 1 . 2 0 1 1 , copy of the chargesheet under Section 207 Cr.P.C was supplied to the accused persons b y t h e C o u r t o f L d . M M and the case was committed to the Court of Sessions under Sec. 209 Cr.P.C.
5. Vide order dated 22.02.2012 the Ld. Predecessor framed charges under Sec. 395/34 IPC, 394/34 IPC against all the five accused persons namely Ishwar @ Rahul, Deepak Aggarwal, Karan Kapoor, Rajan Arora @ Sunny and Punit Arora @ Pinu and additional charge under Sec. 397 IPC was also framed against accused Punit Arora @ Pinu, to which accused persons pleaded not guilty and claimed trial.
6. To prove its case, prosecution has examined 30 witnesses. The testimonies of presecution witnesses along with its nature has been discussed briefly in the following paragraphs.
7. PW1 Sh. Shankar Lal, is the salesman of Bharat Alankar Bhandar, Chandani Chowk, Delhi. He deposed that on 25.07.2011, Sunil Verma, Karigar of their shop came to their shop and he gave him 40 gm. gold for making ornaments. He further deposed that a letter, Mark1/A was also issued by Sh. Ved Prakash Khandelwal in this regard. He further deposed that he can identify the signature and writing of Sh. Ved Prakash Khandelwal. In his cross examination, he deposed that Police officials came to their shop on 28.07.2011 but on that day, abovesaid letter was not issued. He also State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 5 of 39deposed that he did not know the date when this letter was handed over to Police. He also deposed that the letter was not handed over to Sunil Kumar Verma by the Accountant in his presence. He also deposed that when the gold was handed over to Sunil Kumar Verma, entry in this regard was made in the appropriate register. He denied the suggestion that the gold was not handed over to Sunil Kumar Verma, in his presence. He also denied the suggestion that letter Mark PW1/A was issued at the instance of Police.
8. PW2 Sh. Amit Khandelwal, is the owner of Amit Chain & Jewellers. He deposed that on 25.07.2011, PW4 Sunil Kumar Verma came to his shop and he gave him 41 gm. gold for repair. He also deposed that he issued letter Mark PW2/A in this regard. In his crossexamination, he deposed that he used to maintain stock register of articles received and handed over to customers. He also deposed that he only prepared a rough note because Sunil Kumar Verma used to take gold from his shop regularly, therefore, he did not make any entry in his stock register. He also deposed that he did not take any signature of Sunil Kumar Verma on any paper or register. He further deposed that he handed over letter Mark PW 2/A to the Police on 11.10.2011.
9. PW3 HC Satyavir Singh is the Duty Officers who proved FIR No. 162/2011 Ex. PW3/A alongwith endorsement on rukka Ex. PW3/B. In his crossexamination, he denied the suggestion that the present FIR was lodged to fulfill the lacuna of the prosecution case and the FIR was antedated and antetime.
10. PW4 Sh. Sunil Kumar Verma is the victim/complainant State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 6 of 39of the present case. He deposed that on 25.07.2011 at about 09:00 10:00 pm he left for his house from Kucha Mahajni, Chandani Chowk, Delhi for taking gold for preparing jewelery. He further deposed about the names of jewellers and the quantity of gold and jewellery collected by him from the said jewellers. He further deposed that after taking all the gold and jewellery in a bag, he proceeded to his house on his motorcycle bearing registration no. DL7SBC7522 and at about 09:3009:45 pm, when he reached at Geeta Colony Flyover, two motorcycles came from his both sides and the motorcyclist who came from his right side tried to snatched his bag which he was carrying. He further deposed that when the said motorcyclist pulled the belt of bag, his motorcycle got dis balanced and he fell down on the road and sustained scratches on his right side of elbow and shoulder. He also deposed that pillion rider of motorcycle which overtook him from his left side was carrying an object like pistol and loaded the same. He further deposed that all the five persons started beating him with kicks and fist and one boy told him to hand over the bag otherwise they will shoot him. He further deposed that he loosned the grip of the belt of the said bag and the said boys snatched the bag. He further deposed that he made call at 100 number and police arrived at the spot and took him to Sushrut Trauma Centre where he was medically examined and his statement, Ex. PW4/A was recorded by the Police. He also deposed that till date no jewellery or gold had been recovered which was looted and he had also supplied the relevant document by which he received the gold and jewellery articles from State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 7 of 39his customers to the police. He identified four of accused persons except accused Puneet @ Pinu during his examinationinchief. He further deposed that he did not know them by their names but had correctly pointed out towards them. He also deposed that he cannot describe the role of each accused separately since he was forced to bend his hand in his legs and was beaten by them. He also deposed that he cannot point out or tell who was riding on the motorcycle coming from the right side and from left side of motorcycle and he also cannot tell who among the four accused persons loaded the object like pistol and who firstly tried to snatch his bag. He also deposed that he identified four accused persons in the court and he cannot identify the motorcycle on which the 4493 number was written. This witness was crossexamined by the Ld. Addl. PP for the State in which he admitted that he was carrying cash in sum of Rs. 24,000/ in his bag on the day of incident. PW4 Sh. Sunil Kumar Verma was crossexamined on behalf of accused persons at length. In his crossexamination, he deposed that his mobile had been switched off and when he switched that on, the time was reflected on the mobile was 9 o'clock, therefore he gave that time to the police with respect to his reaching at the place of occurrence, although the actual time was about 09:45 pm. He further deposed that he had not given any description of any accused persons, however, he told the police about their height and built. He also deposed that he had stated in his statement, Ex. PW4/A to the police with respect to involvement of four accused persons. He admitted that he had not stated to the Police in his statement, Ex.
State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 8 of 39PW4/A that one person who was carrying fire arm with him loaded the fire arm at the spot. This witness was confronted with his statement Ex. PW4/A. He further deposed that first time he identified the accused persons in the court after the incident. He admitted that none of the accused persons had been arrested in his presence. He also admitted that no site plan was prepared in his presence during the investigation. He further deposed that he was told by IO regarding the arrest of accused persons and he had not given the description of the accused persons during investigation. He admitted that no sketch of accused persons was prepared by the Police at his instance nor any sketch was prepared on his instance on computer by the expert and he had not given any sketch of jewellery looted from him to the Police. He denied the suggestion that accused persons were falsely implicated and they have not looted him nor inflicted any injury on his person nor they have snatched anything from his possession. This witness was re examined by Ld. Addl. PP for the State, in which he deposed that on last date when his examination was recorded, he could not identify one of the accused because at that time he was wearing spectacles of near vision and the said accused was standing in the court far ahead from other coaccused. He correctly identified co accused Puneet Arora as one of the accused. In his cross examination on behalf of accused Puneet Arora, he deposed that he cannot tell the dates when he brought his spectacles. He also deposed that he brought his spectacles on 16.05.2012 but he cannot tell if he had brought his spectacles on 06.07.2012. He denied the State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 9 of 39suggestion that accused Puneet Arora was identified by him as he was tutored by IO outside the court today. He admitted that at the time of identification of rest of the accused persons, he was wearing his near vision spectacles.
11. PW5 Sh. Sharad, is the owner of Jewellery Shop situated at Kucha Mahajani, Chandani Chowk. He deposed that on 25.07.2012 at about 08:00 pm, complainant Sunil Kumar Verma came to his shop and he handed over 55.980 gm gold to him for jewellery making. In his crossexamination, he deposed that he did not maintain any stock register and no receipt was issued with regard to handing over the gold to the complainant nor his signature was obtained. He denied the suggestion that no gold was handed over to the complainant.
12. PW6 SI Abdul Wahid, is the first IO of the case. He deposed that on receiving DD No. 68B, Ex. PW6/A, regarding snatching of jewellery on the point of Katta by five boys on two motorcycle at Shanti Van Flyover to the side of Geeta Colony, he along with Ct. Ashok reached at the spot where one motorcycle bearing registration no. DL7SBC7522 was lying on the roadside. He further deposed that he came to know that injured was shifted to Trauma Centre by PCR Van. He also deposed that he went to Sushrut Trauma Center and collected the MLC of complainant Sh. Sunil Kumar Verma and recorded his statement, Ex. PW4/A. He further deposed that after perusing the MLC, statement of Sunil Kumar Verma and place of occurrence, he made endorsement, Ex. PW6/B on rukka and got the present FIR registered at Police State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 10 of 39Station through Ct. Ashok. In his crossexamination, he deposed that he reached the hospital at about 10:45 pm where no witness except the complainant/injured was present.
13. PW7 Sh. Himanshu Verma, is the son of the complainant. He deposed that he was the registered owner of the motorcycle bearing registration no. DL7SBC7522 make Bajaj Discover which was driven by his father/complainant at the time of incident. In his crossexamination he deposed that his statement was never recorded by the Police and police did not make inquries from him.
14. PW8 HC Rajbir is the member of raiding team of Crime Branch who apprehended accused persons namely Ishwar @ Rahul and Deepak. He deposed about the receiving of secret information and constitution of raiding party by SI Surender Dalal. He further deposed that at about 06:15 pm, two boys came from Khajoori Chowk side and secret informer identified the driver of motorcycle as Rahul and pillion rider as Deepak and both the boys were apprehended and their formal search was conducted. He further deposed that on inquiry, they revealed their names as Ishwar @ Rahul and Deepak. He proved the arrest memo of accused persons as Ex. PW8/A and Ex. PW8/B, their personal search as Ex. PW 8/C and Ex. PW8/D and their disclosure statements, Ex. PW8/E and Ex. PW8/F. He also proved the seizure memo, Ex. PW8/G of motorcycle bearing registration no. DL 7ST 8052 on which accused persons came there. He also proved the arrival and departure entries of raiding team at crime branch office vide DD No. 11, Ex. PW8/H and DD No. 12, Ex. PW8/J. He also proved DD No. 18, Ex. PW State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 11 of 398/K through which case property was deposited at Nehru Place. In his crossexamination, he deposed that no independent witness was present at the time of recording of disclosure statement of both the accused persons. He admitted that place of occurrence is thickly populated area and ASI Jai Singh did not give any notice to the public persons who refused to join the raiding party. He denied the suggestion that accused persons were lifted from their respective houses on 30.08.2011 and later on they have been falsely implicated in this case by manipulating the documents.
15. PW9 HC Jag Narain, is the MHC(M) at PS Crime Branch. He proved the entry made by him in the register no. 19 vide Ex. PW9/A (OSR) regarding deposit of case properties by ASI Jai Pal Singh. In his crossexamination, he deposed that he had no personal knowledge about this case and he did not remember when the case property was deposited in Malkhana.
16. PW10 HC Rajvir Singh, deposed that on 14.09.2011 he joined the investigation of this case with IO and five accused persons were taken out from the lockup and were taken to Lal Qila by IO. He further deposed that accused were interrogated at Lal Qila and thereafter they produced before Ld. MM and were remanded to judicial custody. This witness was crossexamined by Ld. Addl. PP for the State in which he admitted that accused Deepak Aggarwal and Karan Kapoor was in his custody when they were taken to Lal Qila. He also admitted that accused persons made disclosure statement and he signed on the disclosure statement Ex. PW10/A of accused Deepak Aggarwal as witness. He also State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 12 of 39admitted that four accused persons namely Rajan Arora, Deepak Aggarwal, Ishwar @ Rahul and Karan Kapoor were taken to Lal Qila for interrogation. He also deposed that he did not know whether the accused Iswar and Deepak Aggarwal were remanded to one day police custody and the other two accused were remanded to judicial custody. In his crossexamination, he identified the accused Rajan Arora as accused Deepak Aggarwal and he stated that he is unable to identify the other accused persons by their names due to passage of time. He denied the suggestion that he did not join the investigation.
17. PW11 Ct. Ashok joined the proceedings with first IO PW6 SI Abdul Wahid and he has deposed on lines of PW6 SI Abdul Wahid. He deposed that SI Abdul Wahid prepared rukka and handed over the same to him for getting FIR registered. He further deposed that he went to the PS and got the FIR registered and returned to the spot with copy of FIR and rukka and handed over the same to IO SI Jagdish Yadav. He further deposed that on 15.11.2011 he went to the office of Crime Branch, Nehru Place and brought two motorcycles bearing registration no. DL 9SAJ 72882 and DL 9SAT 4493 to PS Kotwali vide RC No. 529/21 and deposited the same in Malkhana. In his crossexamination he deposed that complainant came at the spot along with IO at about 12 midnight but he did not know the name of vehicle by which IO brought the complainant at the spot. He also deposed that he did not remember whether complainant was under plaster or not. He also deposed that IO recorded his statement only once at the spot and he State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 13 of 39did not sign on his statement.
18. PW12 Dr. Akshay Kumar Saxena, Junior Consultant (Ortho) has proved his opinion, Ex. PW12/A (from Orthopedic point of view) on the MLC of complainant regarding the nature of injury which was simple in nature. This witness was not cross examined on behalf of accused persons despite opportunity given to them.
19. PW13 Dr. Anshuman Kumar, Medical Officer, Sushruta Trauma Centre has proved MLC No. 137431, Ex. PW12/A of complainant PW4 Sh. Sunil Kumar Verma. In is crossexamination he admitted that name of the weapon was not disclosed by the patient at the time of his examination.
20. PW14 Ct. Het Ram, deposed that on 01.09.2011 he along with SI Chander Singh and Ct. Naresh went to Karkardooma Court where SI Chander Singh took the custody of accused Deepak and Ishwar @ Rahul from Crime Branch. He further deposed that both the accused persons were in muffled face and thereafter they were produced by them before the Ld. MM and thereafter they were sent to the judicial custody. In his crossexamination, he deposed that he did not make any DD entry in this regard. He denied the suggestion that he did not join the investigation in this case on 01.09.2011 and he never visited KKD Court and Tis Hazari Court and that is why he was unable to tell the exact time.
21. PW15 Ct. Pradeep deposed that on 06.09.2011, he along with Ct. Vijender accompanied SI Chander Singh at Tis Hazari Courts where accused Rajan Arora and Karan @ Sona were State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 14 of 39produced in the court. He further deposed that both accused persons were interrogated by IO and they were arrested in the present case. He proved the arrest memo of accused Rajan Arora and Karan @ Sona as Ex. PW15/A and Ex. PW15/B respectively. He also proved the disclosure statement, Ex. PW15/C of accused Rajan Arora. In his crossexamination, he deposed that he did not know whether accused persons put their signature or thumb impression.
22. PW16 HC Naresh is the DD Writer at PS Kotwali. He proved the DD No. 68B, Ex. PW6/A and true copy of original roznamcha, Ex. PW16/A. This witness was not crossexamined on behalf of accused persons despite opportunity given to them.
23. PW17 Dr. Dheeraj Kumar, Casualty Medical Officer, Sushruta Trauma Centre, has proved the nature of injury on MLCNo. 137431 of complainant PW4 Sh. Sunil Kumar Verma on nuero surgery side as 'simple' in nature. This witness was not crossexamined on behalf of accused persons despite opportunity given to them.
24. PW18 Ct. Pop Singh, deposed that on 13.09.2011 he joined the investigation of the present case along with IO/SI Jagdish. He further deposed that during investigation accused persons namely Rajan Arora, Deepak, Karan and Ishwar @ Rahul took them Geeta Colony and pointed out the place of incident where IO prepared pointing out memo, Ex. PW18/A at their instance. In his cross examination he deposed that he did not know the DD number of their departure and arrival from the PS. He denied the suggestion that no pointing out memo was prepared at the instance of accused State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 15 of 39persons or that their signatures were obtained on blank papers.
25. PW19 Ct. Vijender Singh deposed on the lines of PW15 Ct. Pradeep and proved arrest memo of accused Rajan Arora and Karan @ Sona as Ex. PW15/A and Ex. PW15/B. He also proved disclosure statements of both accused as Ex. PW15/C and Ex. PW 19/A. This witness was not crossexamined on behalf of accused persons despite opportunity given to them.
26. PW20 SI Jay Singh, is the one of the member of raiding team, constituted at Crime Branch Prashant Vihar. He deposed on the lines of PW8 HC Rajbir and proved arrest memos, personal search memos and disclosure statements of accused Ishwar @ Rahul and Deepak. He identified both the accused persons in court during trial. He also deposed about seizure of motorcycle being driven by accused Rahul @ Deepak, deposit of case properties in Malkhana and DD entries regarding arrival and departure of raiding team in Crime Branch. He also proved Kalandara under Sec. 41.1(a) Cr.PC, Ex. PW20/A regarding arrest of accused persons. In his crossexamination, he admitted that place of apprehension of accused is a congested area and public place and no written notice was given to those public persons who refused to join the raiding party. He denied the suggestion that accused Ishwar @ Rahul was lifted from his factory at Jheel Chowk on 31.08.2011 at about 12:30 am or that he also took the motorcycle make Discover bearing registration no. DL 5ST 8052 alongwith him. He also denied the suggestion that accused persons were not arrested from the place, time and date as deposed by him.
State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 16 of 3927. PW21 HC Khem Chand, deposed that on 16.09.2011 he accompanied IO/SI Jagdish Yadav to Tis Hazari Courts where accused Puneet Arora appeared before Ld. MM. He further deposed that after interrogation, IO/SI Jagdish Yadav formally arrested him in this case and recorded his disclosure statement. He proved arrest memo, Ex. PW21/A and disclosure statement, Ex. PW21/B of accused Puneet Arora. In his crossexamination, he denied the suggestion that no disclosure statement was given by accused Puneet Arora.
28. PW22 Sh. Ravi Sharma, is the owner of the motorcycle make Karizma bearing registration no. DL3SAT4493. He deposed that he sold the abovesaid motorcycle to one Pammi of Bhatia Motors at Karol Bagh, New Delhi for a consideration of Rs. 20,500/, on 19.06.2011. He further deposed that Bhatia Motors later on sold the said motorcycle to one Karan Kumar on 24.06.2011. He further deposed that he also gave description of the transaction vide his letter, Ex. PW22/A, photocopy of receipt, Mark22/A regarding handing over of the motorcycle by him to Bhatia Motors, photocopy of the delivery receipt pertaining to Karan Kumar Yadav, Mark22/B and photocopy of PAN card of Karan Kumar and voter ID card of Naveen Yadav, Mark22/C to the police. This witness was not crossexamined on behalf of accused persons despite opportunity given to them.
29. PW23 Retd. SI Chander Singh has conducted the investigation of this case in absence of regular IO/SI Jagdish Yadav. He deposed that on 01.09.2011, he received DD No. 20B State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 17 of 39regarding the arrest of accused Ishwar @ Rahul and Deepak Aggarwal by Crime Branch. He further deposed that he went to the court of Ld. ACMM, KKD, obtained the copy of Kalandara under Sec. 41 Cr.PC and arrested accused Ishwar and Deepak vide memo Ex. PW23/A and Ex. PW23/B. He also recorded their disclosure statement, Ex. PW23/C and Ex. PW23/D. He further deposed that from the disclosure statement of accused Ishwar and Deepak, the names of coaccused Rajan Arora @ Hunny and Karan @ Sona were also revealed who were found to in JC in case FIR No. 346/2011, PS Prashant Vihar. He further deposed that on 06.09.2011, he formally arrested accused Rajan Arora @ Hunny and Karan @ Sona vide arrest memos Ex. PW15/A and Ex. PW 15/B. He also proved their disclosure statement, Ex. PW15/C and Ex. PW19/A. In his crossexamination, he deposed that he had not given notice under Sec. 160 Cr.PC to accused Deepak to keep himself in muffled face. He denied the suggestion that no disclosure statement was made by accused Deepak or that his signature were obtained on blank papers.
30. PW24 Sh. Rajesh Kumar, Record Clerk, Sushruta Trauma Centre, has proved the MLC, Ex. PW12/A of complainant prepared by Dr. Anuj Gupta as he left the services of hospital. This witness was not crossexamined on behalf of the accused persons despite opportunity given to them.
31. PW25 W/Ct. Meera Tomar, is the DD Writer. She proved DD No. 20B, Ex. PW25/A. This witness was also not cross examined on behalf of accused persons despite opportunity given to State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 18 of 39them.
32. PW26 ASI Vipin, deposed that on 14.09.2011 he joined the investigation of the present case with IO/SI Jagdish Yadav. He further deposed that IO interrogated accused Rajan Aroa at Lal Quila and recorded his disclosure statement, Ex. PW26/A. In his crossexamination he denied the suggestion that no disclosure statement was made by accused Rajan Arora and his signatures were obtained on blank papers which were later on converted into fabricated disclosure statement.
33. PW27 HC Inderjeet, deposed that on 18.11.2011, he went to PS Dwarka South and obtained a motorcycle bearing registration no. DL 9SV 8934 make Pulsar from the Malkhana and brought the same to the Malkhana of PS Kotwali vide RC no. 69/21/11, on the direction of IO. This witness was not crossexamined on behalf of accused persons despite opportunity given to them.
34. PW28 Sh. Sandeep Gupta, Secretary, Central District Legal Service Authority has proved the TIP proceedings of accused Punit Arora, Deepak, Karan @ Sonu, Ishwar @ Rahul and Rajan Arora as Ex. PW28/A, Ex. PW28/E, Ex. PW28/F, Ex. PW28/G and Ex. PW28/H, respectively. This witness was not cross examined on behalf of accused persons despite opportunity given to them.
35. PW29 ASI Ashok Kumar, is the MHC(M). He proved the entries made by him in the register no. 19 vide Ex. PW29/A to Ex. PW29/C regarding deposit of case properties. In his cross examination, he denied the suggestion that the entries in register no. State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 19 of 3919 are antedated and antetimed.
36. PW30 Inspector Jadgish Yadav is the Investigating Officer of the present case. He narrated about the proceedings conducted by him during investigation. He deposed that on 25.07.2011, PCR call regarding robbery was received in PS and same was assigned to SI Abdul Wahid who got the present FIR registered and further investigation of this case was entrusted to him. He further deposed that he visited the spot and prepared the site plan at the instance of complainant and seized motorcycle bearing registration no. DL 7SBC 7522. He also deposed that he along with staff went in search of accused persons and case property but no clue could be found. He further deposed that he filed an application Ex. PW30/A for the PC remand of accused Ishwar @ Rahul, Deepak Aggarwal, Rajan Arora and Karan @ Sona before Ld. MM as they had already arrested by SI Chander Singh. He further deposed that during PC remand, he also recorded their disclosure statements of accused persons and tried to recover case properties and trace coaccused Nitin but neither the case properties were recovered nor Nitin could be found. He further deposed that he also moved application, Ex. PW30/E for production of accused Puneet Arora and formally arrested him in this case with permission of Ld. MM. He further deposed that during investigation he brought two motorcycles bearing registration nos. DL 9SAJ 7282 & DL 3SAT 4493 which were involved in the present case from Malkhana of Crime Branch vide RC No. 529/21, Mark PW30/1 and deposited the same in State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 20 of 39Malkhana. He further deposed that he also brought one motorcycle bearing registration no. DL 9SV 8934, involved in the present case, from the Malkhana of PS Dwarka vide RC No. 69/21/11, Mark PW30/2. During investigation, he seized voucher/invoices from the complainant vide which he collected the jewelery from Jeweller's shop vide seizure memo Ex. PW30/I. He also collected medical papers Mark PW30/4 (colly) of complainant and opinion on MLC regarding injury of complainant which was opined as 'simple'. He also seized registration details of motorcycles bearing registration no. DL 3SAT 4493 & DL 9SV 8934 vide seizure memos Ex. PW 30/L & Ex. PW30/L1. He also correctly identified the accused persons in court during trial. In his crossexamination, he deposed that the complainant had not disclosed about the physical description of the assailants who committed offence with him in his complaint Ex. PW4/A. He admitted that the complainant stated about the number of offenders as four and also not stated about the use of any weapon by the offenders in his complaint Ex. PW4/A. He also deposed that he had recorded the supplementary statement of complainant in regard of quantity and particulars of the gold which he had collected from the shopkeepers/jewellers which had been robbed from him on 25.07.2011. He denied the suggestion that he had not collected the original documents of the photocopy which he seized from the complainant on 11.10.2011 because these documents were false and fabricated. He also deposed that he had made efforts during his investigation to collect the CCTV footage but no CCTV footage were found related to the incident. He denied State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 21 of 39the suggestion that accused persons were falsely implicated in the present case as they were involved in other criminal cases or that to solve this case.
37. After closing of Prosecution Evidence, separate statements of the accused persons were recorded under Sec. 313 Cr.PC, wherein they denied all the charges against them. Accused persons stated that they were innocent and IO had falsely implicated them in this case. They also stated that they had not committed the alleged offence as they had been charged and all the evidence created by IO against them to falsely them in the present case being their previous criminal record. Accused persons did not lead any evidence in their defence.
38. Final arguments were advanced by Sh. Pankaj Kumar Ranga, Ld. Addl. PP for the State, Sh. Nitin Kumar, Ld. Counsel for accused Rajan Arora and Puneet Arora @ Pintu and Sh. Ashok Kumar Tiwari, Ld. Counsel for accused Deepak Aggarwal and Ishwar @ Rahul and Amicus Curie for accused Karan Kapoor.
39. Ld. Addl. PP for the State argued that the prosecution has proved its case beyond reasonable doubt and all the prosecution witnesses have supported the prosecution story and have corroborated each other's version. To substantiate his point, he argued that PW4 complainant Sh. Sunil Kumar Verma has completely supported the prosecution story and he has correctly identified the accused persons in the court. He also argued that the testimony of prosecution witnesses is of sterling quality and hence same should be relied upon. He also argued that since the State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 22 of 39prosecution has proved its case against all the accused persons beyond reasonable doubt, they should be convicted under all sections of law under which charges have been framed against them.
40. Per contra, Ld. Defence counsels argued that the prosecution has miserably failed to prove its case beyond reasonable doubt. To substantiate their point, they argued that the investigation in the present case has been conducted in an arbitrary manner. They argued that the robbed articles have not been recovered from the possession of accused persons. They also argued that testimony of PW4 complainant Sh. Sunil Kumar Verma is not reliable as the the important facts were brought on record by him only in the cross examination of Ld. Addl. PP for the State. They also argued that PW4 complainant Sh. Sunil Kumar Verma could not identify accused Punit Arora @ Pinu at first instance. They also argued that the receipts allegedly issued by the jewellers to the complainant have not been proved. They also argued that the identity of the motorcycles have not been fixed. They also argued that there is no independent eyewitness of the incident nor the IO has collected any CCTV footage of the incident. They also argued that the complainant had not mentioned use of any deadly weapon in the commission of offence but later on he changed his version and hence his testimony cannot be relied upon. They also argued that the testimony of prosecution witnesses are suffering from material contradictions. They also argued that since the prosecution has failed to prove its case against the accused persons beyond State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 23 of 39reasonable doubt, all the accused persons should be acquitted under all the sections of law under which charges have been framed against them.
41. In the present case, charges under Sec. 395 read with Sec. 34 IPC, Sec. 394 read with Sec. 34 IPC & Sec. 397 IPC have been framed against accused persons. These Sections have been defined as follows:
394. Voluntary causing hurt in committing robbery If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery shall be punished with imprisonment or with rigorous imprisonment for a term which may extend to 10 years and shall also be liable to fine.
395. Punishment for dacoity Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
397. Robbery or dacoity, with attempt to cause death or grievous hurt If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, so attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
34. Acts done by several persons in furtherance of common intention When a criminal act is done by several persons, in State Vs. Ishwar @ Rahul & Ors.FIR No. 162/2011, PS: Kotwali Page No. 24 of 39
furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
42. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law. I have also considered the judgments relied upon by the Ld. Addl. PP for the state as well as Ld. Counsels for accused persons.
43. PW-4 complainant Sh. Sunil Kumar Verma is the victim as well as the sole eyewitness of the alleged incident. There is no other eyewitness of the incident in the present case and hence the testimony of PW-4 complainant Sh. Sunil Kumar Verma is to be appreciated as per the established principles of the testimony of sole eyewitness.
44. PW-4 complainant Sh. Sunil Kumar Verma deposed that on 25.07.2011 at about 09:00-10:00 pm, he left from Kucha Mahajani, Chandani Chowk and reached at Geeta Colony Flyover at about 09:30-09:45 pm. However, as per rukka Ex. PW-6/B, the alleged incident took place at about 09:00 pm. PW-4 complainant Sh. Sunil Kumar Verma also deposed that just after the incident, he made call at 100 number. PW-16 HC Naresh proved DD No. 68B, Ex. PW- 6/A which was recorded on the call made by the complainant at 100 number. As per the contents of DD No. 68B, the said call was made at 10:15 pm. Thus, there are material contradictions in the version of PW-4 complainant Sh. Sunil Kumar Verma with respect to the exact time of the alleged incident. This raises doubt on the prosecution story.
State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 25 of 3945. As per the complaint, Ex. PW-4/A given by PW-4 Sh. Sunil Kumar Verma, four accused persons were involved in the commission of offence who came on motorcycle. As per the contents of DD No. 68B, Ex. PW-6/A, five persons were involved in the commission of offence. In his testimony before the court, PW-4 complainant Sh. Sunil Kumar Verma deposed that five persons were involved in the commission of offence. In his cross- examination by Ld. Addl. PP for the State dated 06.07.2012, PW-4 complainant Sh. Sunil Kumar Verma deposed that he can identify the sixth accused if produced before him who used the firearm/countrymade pistol. PW-30 IO/Inspector Jagdish Yadav in his cross-examination admitted that the complainant in his complaint Ex. PW-4/A had stated the number of offenders as 'four'. Thus, it has come on record that PW-4 complainant Sh. Sunil Kumar Verma is not sure whether four persons, five persons or six persons were involved in the incident. Thus, there are material contradictions in the version of PW-4 complainant Sh. Sunil Kumar Verma given by him to the police while making call at 100 number and in his complaint Ex. PW-4/A which was given by him soon after he was taken to the hospital regarding the number of persons involved in the commission of offence and in the court in capacity of PW-4. This raises serious doubts on the veracity of PW-4 complainant Sh. Sunil Kumar Verma.
46. PW-4 complainant Sh. Sunil Kumar Verma in his cross- examination deposed that his statement was partly recorded at the spot and thereafter he removed to the hospital. However, PW-6 SI Abdul Wahid and PW-30 IO/Inspector Jagdish Yadav have not State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 26 of 39deposed that the statement of complainant was ever recorded at the spot of incident. PW-6 SI Abdul Wahid deposed that he recorded the statement Ex. PW-4/A of complainant at Sushrut Trauma Centre. This raises serious doubts on the veracity of PW-4 complainant Sh. Sunil Kumar Verma.
47. PW-4 complainant Sh. Sunil Kumar Verma while making call at 100 number vide which DD No. 68B, Ex. PW-6/A was registered had mentioned that the boys were having kattas in their hands. However, he has not mentioned this fact in his complaint, Ex. PW- 4/A which was recorded on the same night. In his testimony, PW-4 complainant Sh. Sunil Kumar Verma has deposed that the pillion rider was carrying an object like pistol and he loaded the same which means that out of five accused persons one accused was having katta/pistol which is contrary to his version mentioned in DD No. 68B, Ex. PW-6/A and his complaint, Ex. PW-4/A. In these circumstances, the version of PW-4 complainant Sh. Sunil Kumar Verma cannot be relied upon.
48. PW-4 complainant Sh. Sunil Kumar Verma in his complaint, Ex. PW-4/A stated that one motorcycle overtook his motorcycle and the driver of said motorcycle put his motorcycle in front of his motorcycle and thereafter the boys who came on two motorcycles gave beatings to him which means that he had not fallen from motorcycle due to the acts of accused persons while he was driving his motorcycle. However, in the court PW-4 complainant Sh. Sunil Kumar Verma deposed that when his motorcycle was in running condition, the motorcyclists who came from his right side tried to State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 27 of 39snatch his bag which he was carrying and when the said motorcyclists pulled the belt of bag, his motorcycle got dis- balanced and he fell down on the road. No photographs of the motorcycle of complainant bearing registration no. DL 7SBC 7522 showing scratches on it due to felling down on the road while it was being driven, have not been placed on record by the IO. PW-6 SI Abdul Wahid and PW-11 Ct. Ashok who reached at the spot of incident have not deposed that the abovesaid motorcycle was found in accidental condition or that there were any marks on the road which could have been caused by the falling of running motorcycle. Both the versions of PW-4 complainant Sh. Sunil Kumar Verma are contradictory to each and cannot stand together.
49. PW-4 complainant Sh. Sunil Kumar Verma in his complaint, Ex. PW-4/A stated that he collected 300-400 gms gold from four shops and proceeded towards his house. However, the prosecution has not examined all the four jewellers and only three persons out of which one is the salesman of a jewellery shop has been examined and the fourth jeweller or his employee has not been examined as prosecution witness. PW-1 Sh. Shankar Lal who was the salesman of Bharat Alankar Bhandar deposed that he gave 44 gms gold to PW-4 complainant Sh. Sunil Kumar Verma while PW-2 Sh. Amit Khandelwal deposed that he gave 41 gm gold to PW-4 complainant Sh. Sunil Kumar Verma. PW-5 Sh. Sharad deposed that he handed over 55.380 gms gold to PW-4 complainant Sh. Sunil Kumar Verma. Thus, the total weight of the jewellery collected by PW-4 complainant Sh. Sunil Kumar Verma is 140.380 gms and not 300- 400 gms and the said figure seems to be very vague. Moreover, State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 28 of 39PW-4 complainant Sh. Sunil Kumar Verma in his testimony has mentioned the different weights of the jewellery collected by him from different jewellers which has not been corroborated by the prosecution through the testimonies of said jewellers, which raises serious doubts on the prosecution story. PW-4 complainant Sh. Sunil Kumar Verma deposed that he had signed the invoices on the date of incident with respect to receipt of materials from the jewellers, however, none of the jewellers or their employees have produced the original stock registers or the receipts showing the handing over of gold to the complainant and the letter issued by them during the investigation without any proof of possession or purchase of said gold are irrelevant. Thus, the prosecution story with respect to the handing over the gold by different jewellers to the complainant suffers from serious lacuna and is not reliable.
50. PW-4 complainant Sh. Sunil Kumar Verma at the time of recording of his testimony on 16.05.2012 identified four accused persons namely Ishwar @ Rahul, Deepak Aggarwal, Karan Kapoor and Rajan Arora @ Sunny but he failed to identify accused Puneet Arora @ Pinu, however, he also deposed that he did not know them by their names and also deposed that he cannot describe the role of each of them separately as he was forced to bend his head in his leg at the time of incident. He also deposed that he cannot point or tell as to who was riding the motorcycle from the right side and from left side and as to who among the four accused persons was having pistol like object and who tried to snatch his bag. In his cross- examination by the Ld. Addl. PP for the State he denied the suggestion that he was deliberately not identifying accused Puneet State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 29 of 39Arora as he was won by him. However, on the next date of recording of testimony i.e. on 22.08.2012, PW-4 complainant Sh. Sunil Kumar Verma correctly identified accused Puneet Arora also in the court. In his cross-examination, he gave the reason that he could not identify accused Puneet Arora at the time of recording of his examination-in-chief in court as he was wearing the spectacles of near vision. However, he admitted that at the time of identification of rest accused persons, he was wearing his near vision spectacles. The reason given by PW-4/complainant is not tenable as other accused persons were identified by him while wearing same spectacles and he could not produce any evidence showing that he was using near vision spectacles. Moreover, he has also deposed that the some of the accused persons or at least one of the accused was wearing helmet but he cannot tell as to who was wearing helmet. PW-4 complainant Sh. Sunil Kumar Verma also could not explain the role played the each of the accused as he had bend his head in his legs and in these circumstances, it would not have been possible for him to see the faces of accused persons properly as it was night time and some of the accused persons were also wearing helmet and he had bend his head between his legs. In these circumstances, the identity of accused persons by PW-4 complainant Sh. Sunil Kumar Verma does not inspire confidence.
51. PW-4 complainant Sh. Sunil Kumar Verma in his examination-in-chief has not stated that he visited Tis Hazari Court on 12.10.2011 and identified four accused persons at Tis Hazari Court when they were being produced in the court. However in his cross-examination by the Ld. Addl. PP for the State he admitted the State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 30 of 39suggestion that on 12.10.2011 he came to Tis Hazari Court where he saw four accused persons coming out of the court and he identified them. However, PW-30 IO/Inspector Jagdish Yadav has not deposed in his examination-in-chief that on 12.10.2011 he met the complainant at Tis Hazari Court or the complainant identified the accused persons there. PW-30 IO/Inspector Jagdish Yadav in his cross-examination has denied the suggestion that accused persons were never kept in muffled face during their production in the court or police custody, which means that accused persons were produced at Tis Hazari Court in muffled face which means that PW-4 complainant Sh. Sunil Kumar Verma had no opportunity to see their faces while their production at Tis Hazari Court on 12.10.2011. Moreover, in his cross-examination dated 06.07.2012 on behalf of accused persons, PW-4 complainant Sh. Sunil Kumar Verma deposed that first time he identified accused persons in the court after the incident which means that he had not seen the accused persons at Tis Hazari Court at the time of their production in the court. This raises serious doubt on the veracity of PW-4 complainant Sh. Sunil Kumar Verma and PW-30/IO Inspector Jagdish Yadav and in these circumstances, the identity of accused persons by the complainant in the court does not inspire confidence.
52. PW-6 SI Abdul Wahid and PW-11 Ct. Ashok deposed that when they reached at the spot of incident, they came to know that the injured had already been taken Trauma Centre which means that complainant was not present at the spot of incident when the abovesaid police officials reached there. However, PW-30 IO/Inspector Jagdish Yadav in his cross-examination deposed that State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 31 of 39he met SI Abdul Wahid along with spot. PW-4 complainant Sh. Sunil Kumar Verma has not deposed that he met either PW-6 SI Abdul Wahid, PW-11 Ct. Ashok and PW-30 IO/Inspector Jagdish Yadav at the spot or that he again visited at the spot of incident. PW-30/IO Inspector Jagdish Yadav deposed that he prepared site plan Ex. PW-4/C at instance of PW-4 complainant Sh. Sunil Kumar Verma. PW-4 complainant Sh. Sunil Kumar Verma did not depose about the preparation of site plan in his examination-in-chief, however, he admitted the preparation of site plan, Ex. PW-4/C at his instance by the IO. However, in his cross-examination dated 22.08.2012, PW-4 complainant Sh. Sunil Kumar Verma deposed that no site plan was prepared in his presence by the IO. This raises serious doubts on the veracity of PW-4 complainant Sh. Sunil Kumar Verma as well as PW-30 IO/Inspector Jagdish Yadav.
53. There is no independent eyewitness of the alleged incident nor any CCTV footage has been collected by the IO. PW-4 complainant Sh. Sunil Kumar Verma in his examination-in-chief has specifically deposed that he cannot identify the motorcycles used in the commission of offence and hence the identity of alleged motorcycles has also not been established by the prosecution. Thus, the version of PW-4/complainant Sh. Sunil Kumar Verma has not been corroborated by any independent evidence.
54. Accused persons have been arrested on the basis of their disclosure statements and they were not arrested at instance of PW- 4 complainant Sh. Sunil Kumar Verma. No new fact has been discovered on the basis of disclosure statements of accused persons State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 32 of 39under Sec. 27 of The Indian Evidence Act. On the basis of disclosure statements of accused persons, the alleged robbed jewellery has not been recovered at their instance which could have connected the accused persons to the commission of offence. This has weakened the prosecution case.
55. Charges under Sec. 397 IPC has also been framed against accused Puneet Arora @ Pinu. PW-4 complainant Sh. Sunil Kumar Verma in his examination-in-chief has specifically deposed that he cannot tell who among the four accused persons loaded the object like pistol. No countrymade pistol/desi katta has been recovered from possession of accused Puneet Arora @ Pinu. PW-13 Dr. Anshuman in his cross-examination has also deposed that the name of the weapon was not disclosed by the patient (complainant) at the time of his examination. Thus, the prosecution has failed to prove the factum of use of deadly weapon i.e. katta/countrymade pistol by accused Puneet Arora @ Pinu at the time of commission of alleged offence.
56. To prove the prosecution case, the testimony of the prosecution witnesses must be reliable. It is not the quantity but the quality of the testimony of the witness that helps a court in arriving at a conclusion in any case. The test in this regard is that the evidence adduced by the parties must have a ring of truth. In a criminal trial, the prosecution has to prove the case beyond reasonable doubt and it is possible only when the testimony of prosecution witnesses is cogent, trustworthy and credible. To secure a conviction of accused, the testimony of the prosecution witness State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 33 of 39must be of sterling quality.
57. In case titled as Rai Sandeep @ Deepu Vs. State (NCT of Delhi), (2012) 8 SCC 21, it is held that :
"22. In our considered opinion, the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstances should given room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a State Vs. Ishwar @ Rahul & Ors.FIR No. 162/2011, PS: Kotwali Page No. 34 of 39
version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of very other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only, if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness' whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the State Vs. Ishwar @ Rahul & Ors.FIR No. 162/2011, PS: Kotwali Page No. 35 of 39
charge alleged."
58. Similarly, in case of Ramdas Vs. State of Maharashtra, (2007) SCC 170, it is held that :
"23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances with cast of shadow of doubt over her veracity. It the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not fine her evidence to be of such quality."
59. Thus, from the above said judgments, it is clear that the version of the witness should be natural one and it must corroborate the prosecution case. Such version must match with the testimony of other prosecution witnesses. It should be of such a quality that there should not be any shadow of doubt upon it.
60. Due to the material contradictions in testimony of PW-4 complainant Sh. Sunil Kumar Verma, non-examination of any independent eyewitness and non-recovery of alleged robbed articles, serious doubts have been created upon the prosecution story. The version of PW-4 complainant Sh. Sunil Kumar Verma is not natural one. The things appears to have not happened in the manner these State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 36 of 39have been projected. In the light of aforesaid discussion, this court is of the considered opinion that the testimony of PW-4 Sh. Sunil Kumar Verma is not clear, cogent, credible and trustworthy and same is not corroborated by other material evidence. The testimony of PW-4 complainant Sh. Sunil Kumar Verma in the present case cannot be said to be of sterling quality to secure the conviction of the accused persons.
61. It is established principle of law that if two views are possible, the view favourable to the accused must be accepted. The benefit of doubt must always go to the accused as the prosecution has to prove the case beyond reasonable doubt.
62. The Hon'ble Apex court in Rang Bahadur Singh Vs. State of U.P. reported in AIR 2000 SC 1209 has held as follows:
"The timetested rule in that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
63. In yet another decision in State of U.P. Vs. Ram Veer Singh and Another reported in 2007(6) Supreme 164 the Hon'ble Apex Court has held as follows:
State Vs. Ishwar @ Rahul & Ors.FIR No. 162/2011, PS: Kotwali Page No. 37 of 39
"The golden thread which runs through the web of administration of justice in criminal cases is that if two view are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not."
64. In the present case, due to material contradictions in the testimony of PW-4 complainant Sh. Sunil Kumar Verma, non- explaning the role of each accused, non-production of the stock registers/receipts showing handing over of jewellery to the complainant by the jewellers, non-recovery of robbed articles, non- recovery of alleged weapon, non-corroboration of prosecution story through independent eyewitness or the CCTV footage, serious doubts have been created on the prosecution story and two views are possible in this case and hence the benefit of the same must go to the accused persons.
State Vs. Ishwar @ Rahul & Ors.
FIR No. 162/2011, PS: Kotwali Page No. 38 of 3965. For the reasons stated above, this court is of the considered opinion that the prosecution has failed to prove the ingredients of offence punishable uner Section 395/34 IPC, 394/34 IPC & 397 IPC against the accused persons beyond reasonable doubt.
66. Accordingly in view of the aforesaid discussion, accused persons namely Ishwar @ Rahul, Deepak Aggarwal, Karan Kapoor, Rajan Arora @ Sunny and Punit Arora @ Pinu are hereby acquitted for the offences punishable under Sec. 395/34 IPC & 394/34 IPC. Accused Punit Arora @ Pinu is also acquitted for offence punishable under Sec. 397 IPC.
67. Bail bonds of the accused persons except bail bonds filed under section 437A CrPC stand cancelled. Their sureties stands discharged. Case property, if any, be released to the rightful owners.
File be consigned to Record Room after due compliance.
Digitally signed VIRENDER by VIRENDER KUMAR KUMAR KHARTA Announced in the open court KHARTA Date: 2024.04.06 14:27:55 +0530 on 06th day of April, 2024 (Virender Kumar Kharta) ASJ/FTC-02(CENTRAL) TIS HAZARI COURTS:DELHI:06.04.2024 State Vs. Ishwar @ Rahul & Ors. FIR No. 162/2011, PS: Kotwali Page No. 39 of 39