Delhi District Court
State vs . Rakesh @ Rahul Etc. on 14 March, 2012
State Vs. Rakesh @ Rahul etc.
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 46/2009
State Vs. : 1. Rakesh @ Rahul @ Bunty
(Proclaimed Offender)
S/o Late Manroop Singh
R/o H. No. 307, Sector2,
Pocket 5, Rohini, New Delhi
2. Ajay Kumar @ Shanto
S/o Late Sudesh Kumar,
R/o H. No. 8990/G26,
Sector3, Rohini, New Delhi
3. Manav Babbar
S/o Sh Vinod Babbar,
R/o B5/178, Sector3, Rohini
New Delhi
4. Kiran
S/o Sh Tanaji,
R/o Shop No. 17/2,
Central Market, Tilak Nagar,
New Delhi
SC No. 46/2009 1/42
State Vs. Rakesh @ Rahul etc.
FIR No. 106/2002
P.S. Vasant Vihar
U/s 365/394/397/411/34 IPC
Date of Institution : 24/06/2002
Date when arguments
were heard : 25/02/2012
Date of Judgment : 14/03/2012
JUDGMENT
BRIEF FACTS:
Adumbrated in brief the facts of the prosecution case is as follows:
Smt Rajni Hoon (herein after referred as complainant), of age about 59 years had gone on 01/04/2002 at about 6.20 pm in her vehicle Baleno car bearing no. DL2CL6509 at Vasant Vihar Market opposite Priya Cinema for hair cut and parked her vehicle nearby. At about 7.30 pm after hair cut when the complainant was going towards her vehicle, opened the vehicle with the aid of remote and was in the process of sitting to drive the vehicle, at that time a boy hit some SC No. 46/2009 2/42 State Vs. Rakesh @ Rahul etc. object on her head due to which she fell down on the front seat. In the meanwhile, second boy held the vehicle on the front seat and dragged the complainant on the back seat of the car, tied mouth of complainant with her chunni and caught hold her forcibly. The boy who had dragged the complainant on the back seat of the car, removed the worn golden bangle of complainant weighing about 20 grams, a wrist watch make Bentex and a diamond ring. Complainant had with her in her vehicle a purse having Rs 10,000/ Rs 11,000/, her mobile phone no. 9811117833 make Motorola of black colour. In her purse, complainant was also having driving licence, two credit cards and some other documents as well. Complainant gave description of those two boys to be of age 3032 years, body medium, one of fair colour and other was wheatish while one boy was tall. Those boys alighted the complainant on the Club Road, Ring Road and went away with the vehicle and the aforesaid articles of the complainant. Complainant made a call to her husband Sh Ashok Hoon (PW2). Sh Ashok Hoon (PW2) arrived there, took complainant to Maharaja Agrasen Hospital where she was medically examined, treated by Dr Sunil Kumar Markan (PW7). The complainant suffered SC No. 46/2009 3/42 State Vs. Rakesh @ Rahul etc. one centimeter long semi lunar lacerated wound over forehead; haematoma one and half inch diameter over right cheek and ecchymoses below right eye, which injuries were opined as simple in nature. SI Subhash (PW9) of police station Punjabi Bagh with Ct Rajbir reached at Maharaja Agrasen Hospital, Punjabi Bagh, collected the MLC of complainant, recorded her statement Ex PW1/A. SI Subhash (PW9) then informed police station Vasant Vihar. SI Madan Lal (PW27) and HC Shree Kumar (PW5) from police station Vasant Vihar came to Maharaja Agrasen Hospital. SI Subhash (PW9) handed over the MLC of complainant to SI Madan Lal(PW27). SI Madan Lal (PW27) recorded tehrir and got the case FIR No. 106/02, under Sections 365/394/34 IPC registered. SI Madan Lal (PW27) recorded the statement of complainant and her husband, made enquiries. SI Dalip Kumar (PW30) further investigated the matter, showed the photographs of suspects to complainant and interrogated them, put Essar phones on observation and prepared the site plan of the place of occurrence.
2. At 12.30 am on 03/04/2002 Manav Babbar (accused) was SC No. 46/2009 4/42 State Vs. Rakesh @ Rahul etc. apprehended in the area of police station Prashant Vihar in case FIR No. 150/02 and arrested at 5.30 am in that case. Later said accused Manav Babbar was arrested in case FIR No. 99/02, police station Prashant Vihar on 03/04/2002. On 04/04/02 accused Manav Babbar gave supplementary disclosure statement in case FIR No. 99/02, police station Prashant Vihar to SI Jitender Singh (PW11) in respect of his involvement in this case. On 06/04/2002 at about 3.30 pm in the area of police station Shalimar Bagh, robbed Maruti Baleno car no. DL2CL6509 of the complainant was intercepted and accused Rakesh @ Rahul @ Bunty (P.O accused) was found driving the said car and was apprehended and case FIR No. 202/02 , under Sections 307/34 IPC and 411 IPC was registered at police station Shalimar Bagh while accused Ajay @ Shantoo allegedly ran away from said car. In the said car then the articles of complainant viz. a big diary, two small diaries, small purse, driving licence, comb, medicines, spectacle, purse etc were recovered and seized.
3. On 07/04/2002, accused Manav Babbar led SI Jitender Singh (PW11) and Ct Paras Nath (PW19) to his house bearing no. SC No. 46/2009 5/42
State Vs. Rakesh @ Rahul etc. B5/178, Sector3, Rohini, New Delhi where from in an almirah he produced golden ring studded with diamond of complainant which was seized. Then accused Manav Babbar led SI Jitender Singh (PW11) and Ct Paras Nath (PW19) to Tilak Nagar at Shop No. 17/2, Central Market, Tilak Nagar of accused Kiran where accused Kiran from an almirah produced a golden kangan of complainant which was seized. Test Identification Parades of the articles were organized and the complainant identified her articles viz. leather bag, three diaries, comb and spectacles before Sh S.K Sharma (PW14), the then Ld. Metropolitan Magistrate and diamond ring and golden kangan before Ms. Kamini Lau, the then Ld Metropolitan Magistrate. On being produced in muffled face before Ms. Kamini Lau (PW10), the then Ld. Metropolitan Magistrate on 17/04/02, accused Rakesh @ Rahul (P.O accused), said accused refused to participate in Test Identification Parade.
4. On 29/04/2002, accused Ajay @ Shantoo was produced on production warrants from judicial custody of other case and was arrested in this case and he refused for participating in the Test SC No. 46/2009 6/42 State Vs. Rakesh @ Rahul etc. Identification Parade before Ms. Kamini Lau, the then Ld. Metropolitan Magistrate on 29/04/2002 itself. Police remand of accused Ajay @ Shantoo was obtained. Accused Ajay @ Shantoo led SI (now inspector) Dalip Kumar (PW30), investigating officer, and Ct Joginder (PW17) to his house no. 8990, G26, Sector3, Rohini, New Delhi on 29/04/2002 and from an almirah there he got recovered mobile phone make Motorola of complainant which was seized and at that time it was not having any SIM card. On completion of investigation, chargesheet for offence under Sections 365/394/397/411/34 IPC was filed.
5. After the completion of the requirements under Section 207 Cr.P.C., case was committed to the court of Sessions. CHARGE
6. Charge for offences under Sections 365/34 IPC; 394/34 IPC were framed against accused Rakesh @ Rahul (now P.O accused), Ajay and Manav Babbar. Further charge for offence under Section 397 IPC was also framed against accused Rakesh @ Rahul SC No. 46/2009 7/42 State Vs. Rakesh @ Rahul etc. (now P.O accused) and accused Ajay Kumar @ Shantoo. Further charge for offence under Section 411 IPC against accused Rakesh @ Rahul @ Bunty (now P.O accused), Ajay Kumar, Manav Babbar and Kiran were also framed on 09/10/2002 by my Ld. Predecessor to which the accused persons pleaded not guilty and claimed trial. WITNESSES:
7. To connect the accused with the offences charged, prosecution has examined in all 31 witnesses namely Smt Rajni Hoon (PW1); Sh. Ashok Hoon (PW2); ASI Jasvinder Singh (PW3); HC Desh Raj (PW4); HC Shree Kumar (PW5); Ct Balraj Singh (PW6); Dr. Sunil Kumar Markan (PW7); Ct Mohar Singh (PW8); SI Subhash (PW9); Ms. Kamini Lau, the then Ld. ARC, Karkardooma Courts (PW10); SI Jitender Singh (PW11); ASI Suresh Chand (also examined as PW11 before my Ld. Predecessor, to be read as PW11A); Ct. Dharam Pal (PW12); Ct. Sohan Lal (PW13); Sh S.K Sharma, Ld. ASJ (PW14); Ct Sambhaji (PW15); Ct Harnam Singh (PW16); Ct Joginder (PW17); Sh Anuj Bhatia (PW18); Ct Paras Nath Yadav (PW19); Inspector Parveen Kumar (PW20); HC Kailash Chand SC No. 46/2009 8/42 State Vs. Rakesh @ Rahul etc. (PW21); HC Ompal Singh (PW22); Sh Bhupender Singh (PW23); HC Prakash Chand (PW24); Ct Abdul Rashid (PW25); Ct Mahipal (PW26); SI Madan Lal (PW27); HC Vikal Singh (PW28); HC Vinod Kumar (PW29) and Inspector Dalip Kumar (PW30).
8. Since accused Rakesh @ Rahul absented in course of trial, initially his NBWs and then his proclamation process was issued. Vide order dated 16/02/2010 of my Ld. Predecessor accused Rakesh @ Rahul was declared Proclaimed offender.
In the course of trial, on 10/01/2012 the arrayed accused excepting accused Rakesh @ Rahul (P.O accused) and their Ld. Defence Counsel Sh Vineet Jain admitted the Test Identification Parade proceedings of case property viz. diamond ring and golden kada conducted by Ms. Kamini Lau, the then Ld. Metropolitan Magistrate, Ex AX1 (Colly).
STATEMENTS OF ACCUSED:
9. Thereafter accused persons were examined under Section 313 Cr.P.C. All incriminating material in evidence was put to the SC No. 46/2009 9/42 State Vs. Rakesh @ Rahul etc. accused persons. All accused pleaded innocence and false implication.
10. Accused Ajay Kumar also stated that he was beaten and his signatures were forcibly taken by police on plain papers; he had not given any disclosure statement while premises no. 89/90, G26, Sector3, Rohini, New Delhi was a kothi and was upto IInd Floor and not a flat and police officers never went there nor he had got recovered any motorola phone Ex P3 as alleged nor pointed out the place of occurrence. Also accused Ajay stated that he had never gone to Priya Cinema Complex and was not knowing anything about the occurrence and when he was obtained on remand by police, police told Rajni Hoon to identify him (accused Ajay). Accused Ajay stated that he had not abducted Rajini Hoon but he was shown by IO to Rajni Hoon at police station before Test Identification Parade, so he refused for participation in TIP. Also, accused Ajay stated that he had surrendered on 09/04/2002 in case FIR NO. 150/02, PS Prashant Vihar and in the said case he was acquitted by the court of Dr. R.K. Yadav, Ld. ASJ while during remand in said case; this case as well as several cases were foisted upon him though he was innocent. SC No. 46/2009 10/42
State Vs. Rakesh @ Rahul etc.
11. Accused Manav Babbar stated that on 02/04/2002 he was arrested from his house and was not knowing even to drive and in case FIR No. 150/02, police station Prashant Vihar he was acquitted. Accused Manav Babbar also stated that after his remand was taken by police, police had not taken him to any place, he had not got recovered any articles as alleged and there was no Godrej almirah in his house while he was discharged in case FIR No. 99/02, police station Prashant Vihar.
12. Accused Kiran also stated that no article was recovered from his possession. Accused Kiran categorically stated that golden kangan Ex P1 was not recovered from his shop nor was belonging to him; police obtained his signatures on several blank papers but he had not given any disclosure statement and stated recovery documents were fabricated. Accused Kiran denied to lead defence evidence.
13. In the course of defence evidence, accused Ajay @ Shantoo and Manav Babbar through Ld. Defence Counsel tendered SC No. 46/2009 11/42 State Vs. Rakesh @ Rahul etc. certified copy of the judgment of case FIR No. 150/02, police station Prashant Vihar, dated 16/08/2003 passed by Dr R.K Yadav, Ld. ASJ alongwith the certified copies of the charge sheet of said case with annexures, evidence recorded and statements of accused recorded in said case as Ex PD (Colly).
ARGUMENTS
14. I have heard the arguments of Ld. Addl. PP for the State, the defence counsel and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
15. Ld. Addl. PP for the State argued that in this case it was accused Manav Babbar who was arrested first and pursuant to his disclosure statement, his coaccused Kiran was arrested and from both accused Manav Babbar and Kiran robbed articles were recovered; complainant identified accused Ajay as robber in the court have used pistol in course of commission of crime. Ld. Addl. PP for the State has prayed for conviction of the accused persons. SC No. 46/2009 12/42
State Vs. Rakesh @ Rahul etc.
16. Ld. Counsel for accused argued that complainant made considerable improvements in her testimony in court and stated of the alleged use of katta in the course of commission of crime of robbery but in her statement Ex PW1/A and supplementary statement under Section 161 Cr.P.C given two days later on 03/04/02 there is no whisper of use of katta by any of the accused persons. Also was argued that accused Ajay @ Shantoo surrendered in case FIR No. 150/02, police station Prashant Vihar in the court of Sh Paramjeet Singh, the then Ld. Metropolitan Magistrate on 10/04/2002 and later on 18/04/2002 accused Ajay was remanded in police custody. Also was argued that the complainant in her deposition stated that on 18/04/2002 she had gone to police station and identified accused Ajay there while accused Ajay was arrested in this case on 29/04/2002. Also was argued that about the description of the robbers given by complainant to police in her lodged report, the complainant had given the age group of the robbers to be 3032 years while at the time of arrest accused Ajay was 20 years of age. It was argued that the testimonies of material witnesses are embodied with SC No. 46/2009 13/42 State Vs. Rakesh @ Rahul etc. material contradictions and considerable improvements making them unreliable and untrustworthy witnesses and projecting the alleged recoveries from the accused persons as highly doubtful. It was argued that the case properties were planted upon the accused persons and the accused persons were falsely implicated in this case and several other cases, while in other cases the accused persons have already been acquitted. It has been prayed for acquittal of the accused persons.
APPRECIATION OF EVIDENCE:
FORMAL WITNESSES:
17. ASI Jasvinder Singh (PW3) is the duty officer at police station Vasant Vihar who recorded FIR No. 106/02, under Section 365/394/ 34 IPC, copy Ex PW3/A. Though ASI Jasvinder Singh (PW3) brought on record the copy of DD No. 29 A, dated 01/04/2002, Ex PW3/B but the same was not in the writing of ASI Jasvinder Singh (PW3), so it stands not proved.
SC No. 46/2009 14/42
State Vs. Rakesh @ Rahul etc.
18. HC Desh Raj (PW4) is the Mal Khana Mohrar of police station Vasant Vihar. HC Desh Raj (PW4) testified of having received the case properties of this case including Baleno car bearing no. DL2CL6509 on 11/04/2002, 12/04/2002, 29/04/2002, 23/05/02 and having released the car and other case properties on superdari on 16/04/2002 and 13/05/2002 in respect of which he has placed on record the copies of register no. 19 collectively Ex PW4/A.
19. Ct Balraj Singh (PW6) was partly examined and cross examination by Ld. Addl. PP for the State was deferred before my Ld. Predecessor on 16/03/2003. Later on 12/05/2011 it was reported that Ct Balraj Singh (PW6) had expired. Incomplete testimony of Ct Balraj Singh (PW6) cannot be read in evidence.
20. Ct Dharam Pal (PW12) was the Mal Khana Munshi at police station Vasant Vihar and on the asking of IO took sealed parcel of case property to the Court on 03/06/2002 for Test Identification Parade.
SC No. 46/2009 15/42
State Vs. Rakesh @ Rahul etc.
21. Ct. Sohan Lal (PW13) is the witness to the arrest of accused Manav Babbar on 04/04/2002 in case FIR No. 150/02, police station Prashant Vihar and also in case FIR No. 99/02, police station Prashant Vihar and the alleged disclosure statement Ex PW11/A of accused Manav Babbar.
22. Ct Sambhaji (PW15) accompanied IO on 17/04/2002 to Patiala House Court where accused Manav Babbar surrendered before the court of Ld. Metropolitan Magistrate and said accused was arrested vide memo Ex PW15/A. After being taken on police remand alongwith other accused Rakesh @ Rahul (P.O accused), accused led the police party to the spot where pointing out memo Ex PW15/B was prepared.
23. Ct Harnam Singh (PW16) was the Naib Court, posted in the court of Sh V.K Goyal, the then Ld. Metropolitan Magistrate, Patiala House Court on 10/04/2002 and on that day accused Kiran was arrested with the permission of the court vide memo Ex PW16/A. Ct Harnam Singh (PW16) took the accused Kiran to police station SC No. 46/2009 16/42 State Vs. Rakesh @ Rahul etc. alongwith IO since no other police personnel was with IO.
24. Sh Anuj Bhatia (PW18) is the Manager Nodal and Regulatory Vodafone Essar who stated that the record of statement of mobile no. 9811117833 of complainant for period of 01/03/2002 to 05/06/2002 had been destroyed, it being more than one year old record.
25. HC Kailash Chand (PW21) brought the Baleno car no. DL2CL6509 vide road certificate no. 38/21 on 11/04/2002 from police station Shalimar Bagh to police station Vasant Vihar and deposited the same in Mal Khana.
26. HC Ompal Singh (PW22) was the duty officer at police station Shalimar Bagh on 06/04/2002 and recorded FIR No. 202/02, police station Shalimar Bagh, copy Ex PW22/A.
27. Sh Bhupender Singh (PW23), Conductor, on deputation in IP Authority, New Delhi brought on record the computer generated SC No. 46/2009 17/42 State Vs. Rakesh @ Rahul etc. attested copies of vehicle no. DL2CL6509 as Ex PW23/A, as per which the said vehicle was registered in the name of Sh Ashok Hoon (PW2).
28. HC Prakash Chand (PW24) was the Munshi to MHC(M) police station Vasant Vihar. On 02/05/2002 on the instruction of MHC (M) he had carried two sealed parcels to Patiala House Courts for Test Identification Parade before Ms. Kamini Lau (PW10), the then Ld. Metropolitan Magistrate.
29. Ct Abdul Rashid (PW25) is the witness to the arrest of accused Rakesh @ Rahul and Manav Babbar vide memos Exts PW25/A and PW15/A on 17/04/2002 at Patiala House Courts where said accused were produced and formally arrested in this case. Ct Abdul Rashid (PW25) also stated that after obtaining police remand, these accused pointed out place of occurrence vide memo Ex PW15/B.
30. Ct Mahipal (PW26) brought two sealed parcels of case SC No. 46/2009 18/42 State Vs. Rakesh @ Rahul etc. property from police station Prashant Vihar on 12/04/2002 to police station Vasant Vihar vide road certificate no 06/21, dated 12/04/2002.
31. HC Vikal Singh (PW28) is the MHC(R), police station Prashant Vihar who produced the originals of disclosure statements of accused Manav Babbar and Kiran in case FIR No. 99/02, police station Prashant Vihar whose copies were Exts PW11/A and PW11/B; he also produced the original seizure memos whose copies were previously exhibited as Exts PW11/B and PW11/C.
32. HC Vinod Kumar (PW29) is the Mal Khana Mohrar, police station Shalimar Bagh who brought on record the copy of entry no. 2485, dated 06/04/2002 of case FIR No. 202/02, police station Shalimar Bagh as Ex PW29/A. MATERIAL WITNESSES
33. Ct Mohar Singh (PW8) and ASI Suresh Chand (PW11A) are the witnesses of the alleged arrest of accused Rakesh @ Rahul (P.O accused) on 06/04/2002 in the area of police station Pitampura SC No. 46/2009 19/42 State Vs. Rakesh @ Rahul etc. in case FIR No. 202/02, police station Shalimar Bagh. As per versions of these witnesses said accused Rakesh @ Rahul had been apprehended with country made pistol, 3 live cartridges, a fired cartridge and the robbed Baleno car bearing no. DL2CL6509, Ex P11 and in said car the robbed articles of complainant i.e ladies bag, Ex P7; big diary Ex P4; two small diaries Ex P5 and Ex P6, broken spectacle Ex P8; small purse Ex P10; key ring in a shape of bottle opener Ex P9 were recovered. Said vehicle, articles, arm and ammunition were seized by Inspector Parveen Kumar (PW20) vide memos Ex PW8/A, Ex PW8/C and PW8/D. Ct Mohar Singh (PW8) testified that accused Ajay @ Shantoo was the person who ran away from the said car. In the course of cross examination of PW8, Sh Rajiv Ojha, UDC, Record Room Session, Tis Hazari Court had produced the original file of case FIR No. 202/02, police station Shalimar Bagh having Sessions Case No. 116/04 whose perusal revealed that in terms of the order dated 16/01/2003, accused Ajay was discharged. Even for the recovery of said articles Exts P4, P5, P6, P7, P8, P9, P10 and Baleno car Ex P11 accused Rakesh @ Rahul (P.O accused) only was facing the charge for the offence under SC No. 46/2009 20/42 State Vs. Rakesh @ Rahul etc. Section 411 IPC.
SEARCH AND SEIZURE:
34. Investigating officer belonging to one police station is permitted to search any place falling within the limits of another police station in certain exigencies without making any requisition of the services of the police officer of the police station where the search is to be conducted in certain exigencies. One such exigency can be when there is possibility of delay in requisitioning the services of the police officer of another police station and such delay could defeat the very purpose of the search. In such circumstances, when search is conducted by the investigating officer without requisitioning the services of the officer incharge of the another police station within whose jurisdiction the search was conducted, under SubSection (4) of Section 100 Cr.P.C, he is required to forthwith send notice of the search to the officer incharge of the police station within the limits of which such place is situated, and is also required to send alongwith such notice a copy of the list, if any, prepared under Section 100 Cr.P.C. He is also required to send to the nearest Magistrate SC No. 46/2009 21/42 State Vs. Rakesh @ Rahul etc. empowered to take cognizance of the offence, copy of the records prepared by him under subSection (1) and (3) of Section 165 Cr.P.C.
35. In terms of the presented case of prosecution accused Manav Babbar was initially apprehended and arrested in case FIR No. 150/02, police station Prashant Vihar in the intervening night of 2nd and 3rd April, 2002; later said accused was arrested in case FIR No. 99/02, police station Prashant Vihar on 04/04/2002.
36. In terms of the supplementary statement Ex PW11/A in case FIR No. 99/02, police station Prashant Vihar, dated 04/04/2002 purportedly scribed by SI Jitender Singh (PW11) , witnessed by Ct Sohan Lal, accused Manav Babbar allegedly stated of commission of the crime in question at Sl. No. 3 therein. Pursuant to said disclosure statement Ex PW11/A, said SI Jitender (PW11) with Ct Parasnath Yadav (PW19) had reached at the house of accused Manav Babbar in between 11 am and 11.30 am on 07/04/2002. SI Jitender Singh (PW11) testified that the said house of accused Manav Babbar was rented house, on the way 3 /4 passerbyes were asked to join the SC No. 46/2009 22/42 State Vs. Rakesh @ Rahul etc. investigation but no enquiries were made from the landlord or neighbors of accused Manav Babbar to join the investigation, search or seizure, while at the time of search of the house of accused Manav Babbar, only his mother was present and an hour was taken in investigation work there. SI Jitender Singh (PW11) testified that at his house from Godrej almirah accused Manav Babbar produced a diamond ring, Ex P2 belonging to complainant of this case. Per contra, Ct Parasnath Yadav (PW19) testified that at the house of accused Manav Babbar his mother and other persons were present there while he was not knowing the names and relations of those persons; the investigation officer called neighbors to join investigation but none came; half an hour was taken for doing the proceedings there.
37. SI Jitender Singh (PW11) had further testified that from his house, accused Manav Babbar took them to jeweller shop of accused Kiran, situated in Central Market, Tilak Nagar and got recovered gold kangan, Ex P1, from there. SI Jitender Singh (PW11) elicited that they had reached at the shop of accused Kiran in SC No. 46/2009 23/42 State Vs. Rakesh @ Rahul etc. between 1 pm to 2 pm on 07/04/2002, they had not asked any neighbouring shopkeepers or any officer bearer of association of shopkeepers to join investigation for search and seizure at the said shop of accused Kiran. Also, SI Jitender Singh (PW11) testified that one male person was also present in the said shop of accused Kiran besides accused Kiran himself there and all the writing work was done at the shop of accused Kiran.
38. Per contra to testimony of SI Jitender Singh (PW11), Ct Parasnath Yadav (PW19) testified that the shopkeepers were requested by the investigating officer near the shop of accused Kiran but none agreed to join investigation, no action was taken against refusing person. Also, Ct Parasnath Yadav (PW19) stated that accused Kiran was alone in his shop at Tilak Nagar. Also, Ct Parasnath Yadav (PW19) stated that the writing work must have been done at the police station; Ct Parasnath Yadav (PW19) also stated that IO must be knowing whether accused Kiran was arrested at shop or police station.
SC No. 46/2009 24/42
State Vs. Rakesh @ Rahul etc.
39. It is vivid and clear from the evidence of PW11 and PW19 that the officers of investigating agency deviated from the procedure regulating searches contained in Section 165 Cr.P.C and 166 Cr.P.C. It is not the case where on account of some urgency or exigency the investigating officer had to immediately search the premises of either Manav Babbar or accused Kiran to make recoveries from there. Disclosure statement, aforesaid, of accused Manav Babbar in case FIR no. 99/2002, police station Prashant Vihar, Ex PW11/A is dated 04/04/2002. Aforesaid alleged recovery of golden ring studied with diamond, Ex P2 from accused Manav Babbar was so effected on 07/04/2002, seized vide memo Ex PW11/C. Also the golden kangan (bangle), Ex P1 was stated to be recovered from the shop of accused Kiran at Tilak Nagar at instance of accused Manav Babbar on 07/04/2002 and seized vide memo Ex PW11/B. Prior to leaving the police station on 07/04/2002, the officer PW11 had ample time of three days with him to join independent witnesses to his such raid, search and seizure or even to inform the Station Head Officers or other responsible officers of the police stations of the area of premises of accused Manav Babbar and SC No. 46/2009 25/42 State Vs. Rakesh @ Rahul etc. accused Kiran. Despite admitted availability of public persons, independent persons, shopkeepers, neighbors at the elbow of investigating officer whom he could have joined in the search of premises of accused Manav Babbar and Kiran and seizure of the articles from such places, no such persons were so joined in investigation. Same old feeble plea of going away of such public persons without disclosing their names and addresses has been churned by Ct Paras Nath Yadav (PW19) which has seldom found favour with the Court. The officer, SI Jitender Singh (PW11) himself admitted in the course of his examination of having not even asked the landlord/neighbors of accused Manav Babbar or neighbouring shopkeepers or any officer bearer of association of shopkeepers in the vicinity of shop of accused Kiran to to join investigation for search and recovery. The said recoveries of golden kangan/bangle Ex P1 and diamond studded golden ring Ex P2 are alleged to have been effected in broad day light. Yet, it is not apparent from the record that the investigation was fair. I say so, since no independent witness has been joined in the search and seizure of the articles Exts P1 and P2, for which recoveries, the provisions of law and procedure have SC No. 46/2009 26/42 State Vs. Rakesh @ Rahul etc. been kept at bay. Even for said recoveries, SI Jitender Singh (PW11) did not deem it fit to either join the complainant (PW1) or the investigating officer of the present case FIR No. 106/02, police station Vasant Vihar for recoveries of said articles from the stated accused, though he was having prior knowledge of alleged retention of said articles by accused Manav Babbar and Kiran by virtue of said disclosure statement Ex PW11/A of accused Manav Babbar. The inter se contradictory versions of recovery witnesses PW11 and PW19 of alleged recovery of articles Exts P1 and P2 from accused Manav Babbar and Kiran in the back drop of non joining of any independent witness and complainant (PW1) and investigating officer of this case with such recoveries and investigation, bring the reliability and creditworthiness of PW11 and PW19 under dark colour of cloud of doubt . Even Ct Parasnath Yadav (PW19) testified that writing work for such recoveries must have been done at police station. In Criminal Appeal no. 1327 of 2008 titled, "Mustkeem @ Sirajudeen vs State of Rajasthan" , decided on 13/07/2011, it was reiterated by the Apex Court that if recovery memos were prepared at police station itself then the same would SC No. 46/2009 27/42 State Vs. Rakesh @ Rahul etc. loose its sanctity, as was held by the Apex Court in case of Varun Choudhary vs State of Rajasthan, reported in AIR 2011 SC 72.
40. As borne out from Ex PD (colly), on surrender before court of Sh Paramjeet Singh, the then Ld. Metropolitan Magistrate on 10/04/2002 in case FIR No. 150/02, police station Prashant Vihar accused Ajay @ Shantoo was arrested. Consequent thereto on 18/04/2002 in said case FIR No. 150/02, police station Prashant Vihar police custody remand of accsued Ajay @ Shantoo was obtained till 19/04/2002. In the present case FIR No. 106/2002, police station Vasant Vihar accused Ajay @ Shantoo was arrested on 29/04/2002 in the court on his production on an application moved seeking production of said accused. After arrest of accused Ajay @ Shantoo vide memo Ex PW30/B allegedly disclosure statement Ex PW30/C was recorded in the court premises by investigating officer Inspector Dalip Kumar (PW30) with the mention of witness being Ct Joginder (PW17). Signatures of witness Ct Joginder (PW17) as available on record inter alia on seizure memo Ex PW17/B, are not there on disclosure statement Ex PW30/C. Even Ct Joginder (PW17) in his SC No. 46/2009 28/42 State Vs. Rakesh @ Rahul etc. entire testimony did not whisper of any disclosure statement given by said accused Ajay @ Shantoo.
41. As per Inspector Dalip Kumar (PW30) they left the court premises on 29/04/2002 after taking one day police custody remand of accused Ajay @ Shantoo pursuant to his disclosure statement Ex PW30/C and they had gone to the house of accused Ajay @ Shantoo bearing house no. 8990, G26, Sector3, Rohini and reached there at 5 or 5.30 pm where the mother of accused Ajay @ Shantoo was there, none else was present. As per Inspector Dalip Kumar (PW30), accused Ajay @ Shantoo enquired from his mother about the keys of almirah and somewhere from the house picked up the keys and opened the almirah and from the almirah took out the motorola mobile phone Ex P3 which was seized vide memo Ex PW17/B and IMEI number of phone was mentioned therein. As per Inspector Dalip Kumar (PW30), said house of accused Ajay @ Shantoo was a DDA flat and was at ground floor, there was one DDA flat only at first floor above the said flat of accused Ajay @ Shantoo. As per Inspector Dalip Kumar (PW30), he with PW17 Ct SC No. 46/2009 29/42 State Vs. Rakesh @ Rahul etc. Joginder Singh remained at the house of accused Ajay @ Shantoo for 30 or 45 minutes, then they returned back to the place of occurrence where the accused Ajay @ Shantoo pointed out the said place vide memo Ex PW17/A and thereafter they returned to police station. Seizure memo Ex PW17/B does not find mention of the said house of accused Ajay @ Shantoo to be a DDA flat. In his statement under Section 313 Cr.P.C, accused Ajay @ Shantoo alleged that premises no. 8990, G26, Sector3, Rohini aforesaid was a Kothi and upto second floor also not a DDA flat. No documents regarding the ownership/possession of said premises were seized.
42. Version of Ct Joginder (PW17) in respect to sequence of occurrence on 29/04/2002 is absolutely per contra to version of Inspector Dalip Kumar (PW30). Ct Joginder (PW17) testified that he had accompanied Inspector Dalip Kumar (PW30) and the accused Ajay @ Shantoo to Munirka Marg near Gurudwara, Vasant Vihar where accused Ajay @ Shantoo pointed out the spot vide memo Ex PW17/A and then accused Ajay @ Shantoo led them at his house no. 8990, G26, Sector3, Rohini where from in an almirah he got SC No. 46/2009 30/42 State Vs. Rakesh @ Rahul etc. recovered the mobile phone Ex P3 without SIM in the room which was seized vide memo Ex PW17/B. In his entire deposition Ct Joginder (PW17) did not whisper a word of having accompanied Inspector Dalip Kumar (PW30) to Patiala House Court or accused Ajay @ Shantoo having given any disclosure statement or any such disclosure statement having been recorded by Inspector Dalip Kumar (PW30) in his presence. Inspector Dalip Kumar (PW30) instead testified that Ct Joginder (PW17) was with him (PW30) in Patiala House Courts. Ct Joginder (PW17) could not tell the time when they left the police station for the house of accused Ajay . Afore elicited contradictory versions of PW17 and PW30 in respect of alleged recovery of mobile phone Ex P3 from accused Ajay @ Shantoo from his house make the said recovery per se doubtful. Herein also despite availability no sincere efforts have been made to join any independent witness(es) to such recovery. No neighbor of accused Ajay @ Shantoo was even asked to join investigation, search or seizure. Presence of other family members of accused Ajay @ Shantoo at the stated place of recovery proves on record that accused Ajay @ Shantoo was not in exclusive possession of the said mobile SC No. 46/2009 31/42 State Vs. Rakesh @ Rahul etc. phone Ex P3, even if it is presumed for sake of arguments that mobile phone Ex P3 was so recovered from almirah in the house of accused Ajay @ Shantoo, though not admitted by the accused and his counsel. Since 10/04/2002, accused Ajay had been under detention and the recovery of the mobile phone projected on record is of date 29/04/2002.
43. Star witness of the prosecution case is the complainant (PW1) herself. When the complainant (PW1) entered into the witness box, she testified making considerable improvements to her version embodied in the statement Ex PW1/A, dated 01/04/2002, supplementary statements to police dated 03/04/2002, 18/04/2002 and 30/04/2002. Version given by complainant to SI Subhash (PW9) in Ex PW1/A, overleaf which tehrir Ex PW27/A was scribed by SI Madan Lal (PW27), sent to police station through HC Shree Kumar (PW5) and it formed basis of FIR No. 106/02, has been made vivid at the out set of the judgment in para 1. Same is not repeated for the sake of brevity. Complainant (PW1) testified that on the fateful evening when she opened the door of her car, she was hit by someone SC No. 46/2009 32/42 State Vs. Rakesh @ Rahul etc. on her head and she fell into her car, was immediately pushed inside the car by two persons standing outside. In the course of her testimony complainant (PW1) did not elicit which of the arrayed accused had hit her on the head and which two accused had pushed her inside the car at the spot. Per contra, in Ex PW1/A, complainant (PW1) stated that one boy hit an object on her head and the second boy held the vehicle on the front seat and dragged complainant (PW1) in her vehicle, she did not say that she was pushed into car by two persons. Also complainant (PW1) testified that the person who drove the car had snatched her ladies hand bag. It was not so said in Ex PW1/A. In Court, complainant (PW1) pointed towards accused Rakesh @ Rahul (P.O accused) stating that he was driving the car and it was accused Ajay who snatched jewellery etc and was present on the rear seat of the car. Also complainant (PW1) stated that she was made to sit on the floor of the car by accused persons; complainant was pressed by hand when she was made to sit on the floor of the car. It was also not so said by her (PW1) in Ex PW1/A to police and in the course of her testimony, she admitted of it. Complainant (PW1), testified inter alia that she went on 18/04/2002 to police SC No. 46/2009 33/42 State Vs. Rakesh @ Rahul etc. station and had identified accused Ajay there, accused Ajay as the person who was on the rear seat of the car, having pistol and he had used it and pointed out the same on different parts of her body, so that she (complainant) may not raise any alarm. In the course of her testimony complainant (PW1), herself admitted having not so said in her statement to police of accused Ajay having pointed the pistol on different parts of her body which such entire version of use of pistol by accused Ajay or other accused does not find mention in statement Ex PW1/A, dated 01/04/2002 nor is mentioned in supplementary statement under Section 161 Cr.P.C , dated 03/04/2002 of complainant (PW1). It is proved on record that on 18/04/2002 accused Ajay was taken on police custody remand till 19/04/2002 in case FIR No. 150/02, police station Prashant Vihar. It was in her examination in chief itself that complainant (PW1) gave the vivid account of having seen the accused Ajay in police station on 18/04/2002. In the course of cross examination by Ld. Addl. PP for the State though the complainant admitted of having identified the accused Rakesh @ Rahul (P.O accused) on 18/04/2002 at police station and having identified the accused Ajay @ Shantoo on 30/04/2002, but in the SC No. 46/2009 34/42 State Vs. Rakesh @ Rahul etc. said cross examination by Ld. Addl. PP for the State, complainant (PW1) did not say that she had not identified accused Ajay in police station on 18/04/2002 which she just previously said in her examination in chief. It is accordingly proved on record that the complainant Smt Rajni Hoon (PW1) had seen accused Ajay in police station on 18/04/2002 i.e well before the arrest of accused Ajay in this case at hand on 29/04/2002. Prior to 18/04/2002 there is no version of complainant Smt Rajni Hoon (PW1) in any of her statement regarding any use of pistol in the commission of crime of recovery. In supplementary statement, dated 18/04/2002, complainant (PW1) alleged to police that accused Rakesh @ Rahul (P.O accused) had hit butt of countrymade pistol on her head and said accused Rakesh @ Rahul (P.O accused) was present in police station; other accused had put said katta on the head of complainant; yet complainant (PW1) did not even say that the other accused (Ajay) had put katta on different parts of her body or that she was made to sit on floor of car. Even in supplementary statement, dated 30/04/2002, under Section 161 Cr.P.C given to police, complainant (PW1) only stated that accused Ajay had held complainant at the SC No. 46/2009 35/42 State Vs. Rakesh @ Rahul etc. rear seat of the car having tied chunni on her mouth, she did not say that she was made to sit on the floor of the car. In her entire statement, complainant (PW1), did not whisper a word incriminating against accused Manav Babbar to have done any overt or covert act in commission of crime of abduction or robbery or in any manner to be inferred or proved of having shared any common intention with other arrayed accused Rakesh @ Rahul (P.O accused) and accused Ajay @ Shantoo. Complainant Smt Rajni Hoon (PW1) in her statement Ex PW1/A simply described the two perpetrators of the crime of robbery to be boys of age 3032 years, body medium, one of fair colour and other of wheatish colour and one of them being tall. Bare perusal of the conviction slip of accused Ajay @ Shantoo reveals that as on date of his arrest i.e 29/04/2002 in this case, his age was 20 years. On 21/01/2012 when accused Ajay @ Shantoo was examined under Section 313 Cr.P.C, he stated his age to be 30 years. Complainant (PW1) was a lady of age 59 years of an affluent family had driving licence, was used to drive Baleno car in year 2002 and presumably having experience in all walks of life. It cannot be presumed by any figment of imagination that such an SC No. 46/2009 36/42 State Vs. Rakesh @ Rahul etc. experienced lady would not be able to judge age group of the person, perpetrator of crime upon her. There is a lot of difference between a young person of age 20 years and a person of age group of 3032 years, visible from appearance. Introduction of use of countrymade pistol in commission of crime of robbery as late as on 18/04/2002 in supplementary statement, by complainant (PW1) is all what is later to apprehension of accused Rakesh @ Rahul (P.O accused) allegedly with pistol on 06/04/2002 with the robbed car Ex P11.
44. In case of Ashok Kumar & Anr. Vs The State (Govt. of NCT of Delhi), 2010 (1) CCC (HC) 347, Hon'ble Mr. V.K Jain inter alia held that it is by now a settled proposition of law if the accused is not previously known to witnesses and is not apprehended on the spot, it is necessary to get his identity verified in a Test Identification Parade, unless the prosecution produces some credible evidence, to corroborate his identification for the first time during trial. There may be special features in a particular case or in the testimony of a particular witness which may persuade the Court to SC No. 46/2009 37/42 State Vs. Rakesh @ Rahul etc. accept identification for the first time in dock even in the absence of any corroborative evidence. Admittedly, the perpetrators of the crime were not known to the victim/complainant (PW1) prior to the occurrence. Consequent to apprehension of accused Ajay @ Shantoo, the foremost duty of the officers of investigating agency was to organize a test identification parade. As aforesaid, in the other case FIR No. 150/02, police station Prashant Vihar accused Ajay surrendered and was arrested on 10/04/2002. The investigating officer in this case had the knowledge of arrest of said accused Ajay @ Shantoo in aforesaid case FIR no. 150/02, police station Prashant Vihar. On 18/04/2002 police custody remand of accused Ajay @ Shantoo was obtained in aforesaid case FIR No. 150/02, police station Prashant Vihar till 19/04/2002. Complainant (PW1) herself in her examination in chief categorically stated of having seen accused Ajay @ Shantoo in the police station on 18/04/2002 itself. Excepting, as aforesaid, there had been no vivid description of identification of features of accused Ajay @ Shantoo in the lodged report Ex PW1/A of complainant, (PW1). Complainant (PW1) described offenders to be of age group of 3032 years. Accused SC No. 46/2009 38/42 State Vs. Rakesh @ Rahul etc. Ajay @ Shantoo was then of age 20 years. Complainant (PW1) did not whisper a word in her testimony that accused Ajay @ Shantoo had hit the object on her head or pushed her in her car. The dock identification of the accused Ajay @ Shantoo by complainant in this case is quite suspicious. Even chargesheet finds mention at the outset in sheet no. 2 that after registration of the FIR, recording of statements on 03/04/2002 of complainant (PW1) and her husband (PW2), the efforts were made by flashing of messages of robbed car and even photographs of the suspects were shown to the complainant. The fact of complainant (PW1) having seen the accused Ajay @ Shantoo in police station on 18/04/2002, brings into fore the fact that application moved and steps taken by officers of investigating agency for organization of test identification parade of accused Ajay @ Shantoo on 29/04/2002 before Ms. Kamini Lau, the then Ld. Metropolitan Magistrate, were farce. Both PWs 17 and 30 tell their different tales of alleged recovery of mobile phone Ex P3, seized from the house of accused Ajay @ Shantoo at his instance on 29/04/2002 vide memo Ex PW17/B, making said recovery doubtful. MLC Ex PW7/A of complainant (PW1) finds mention of the injuries SC No. 46/2009 39/42 State Vs. Rakesh @ Rahul etc. as (i) one cm long semilunar lacerated wound over forehead; (ii) haematoma 1 ½ inches diameter over right cheek and (iii) ecchymoses seen below right eye and the opinion of Dr. Sunil Kumar (PW7) about the nature of injuries to be simple. There is no cogent evidence on record to show that accused Ajay @ Shantoo and Manav Babbar caused grievous hurt to any one including PW1 during the course of robbery or they attempted to cause death or grievous hurt to anyone including PW1 during the course of robbery.
45. Accordingly, the circumstances proved on record, elicited herein before, since raise a doubt against the fairness of investigation by non joining of independent witnesses in all alleged recoveries effected and showing of accused Ajay @ Shantoo on 18/04/2002 at police station to complainant (PW1) bring into fore the reasonable possibility of complainant (PW1) may have been convinced by the officers of investigating agency, of the arrayed accused, presently on bail, being accomplices of proclaimed offender accused Rakesh @ Rahul, being the perpetrators of crime and from accused Rakesh @ Rahul (P.O accused) robbed vehicle and articles Exts P4 to SC No. 46/2009 40/42 State Vs. Rakesh @ Rahul etc. P11 of complainant (PW1) and pistol having been allegedly recovered and there upon the complainant (PW1) might have agreed to falsely implicate the accused Ajay @ Shantoo (alleged to have absconded from recovered vehicle Baleno car Ex P11 with a view to ensure the punishment to the culprits, after due deliberation to strengthen the case of prosecution by improving upon her version alleging the use of country made pistol and showing of recovery of alleged looted case property from the possession of the accused persons. In the backdrop of improved testimony of complainant (PW1), complainant PW1 having seen accused Ajay @ Shantoo in police station on 18/04/2002, contradictory versions of cited and examined witnesses of recovery of case properties elicited herein above and the said tainted recoveries of alleged looted case properties from or at instance of the accused persons, when taken together, make the case of prosecution not convincing and serious lacuna having crept in the prosecution version bringing into fore other hypothesis of false implication of the accused, all in totality, elicit that the pieces of incriminating circumstances are not reliable and the evidence is not clinching and the circumstances, so proved, not forming the chain of SC No. 46/2009 41/42 State Vs. Rakesh @ Rahul etc. events so as to permit no conclusion other than one of guilt of the accused. The investigation has not been above board, but is infact tainted, instead of being fair. Suspicion, howsoever, grave it may be cannot be a substitute for proof. I find that the prosecution has not been successful in proving its case against the accused, beyond reasonable doubt, on the basis of testimony of complainant/ PW1 which falls in the category of neither wholly reliable nor wholly unreliable witness as classified in the case of Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614. The accused Ajay @ Shantoo; Manav Babbar and Kiran deserve and are given benefit of doubt and are accordingly acquitted for the offences charged. Their bail bonds are cancelled and sureties are discharged. File be consigned to the record room. File shall be recalled on appearance or production of proclaimed offender accused Rakesh @ Rahul @ Bunty.
Announced in the open court (GURVINDER PAL SINGH)
on date 14/03/2012 ASJ (FTC)/SD/ NEW DELHI.
SC No. 46/2009 42/42