Delhi District Court
State vs Mohd. Nasir @ Pehlwan on 1 August, 2012
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE, (CENTRAL); DELHI
SC No.60/09
FIR No.435/07
PS I.P. Estate
U/s 394/397/120 B/ 34 IPC
State
Versus
Mohd. Nasir @ Pehlwan,
S/o Mohd. Sharif,
R/o Kasba Javer, Mohalla Khatiyan,
District Gautam Budh Nagar, UP.
Mohd. Shahnawaz @ Shanu,
S/o Mohd. Aabad,
R/o H. No. A323, Nehru Camp,
Govind Puri, Delhi.
Mohd. Nazim,
S/o Late Abdul Wahid,
R/o I7, Abul Fazal Enclave,
Token No. 4, Okhla, Delhi.
FIR No.435/07 1
Mohd. Saleem,
S/o Mohd. Azgar,
R/o 242, Mohalla badi Masjid,
Aurangabad, Distt. BulandSehar, U.P. .......Accused Persons
Date of institution : 05.10.2009
Date of Judgment : 01.08.2012
J U D G M E N T
All the four accused persons, named above, have been facing trial for offences U/s 394 & 397 IPC on the allegations that on 06.09.07 at about 7.00 p.m. all of them in furtherance of their common intention, while Mohd. Nasir, one of the accused, was armed with a knife i.e. a deadly weapon waylaid TSR No.DL 1RC 4424 and robbed complainant - Ram Kishore of Rs.6,05,000/, cheques and other documents while he was travelling in the said TSR alongwith others, namely, Nema Ram and Saravan.
2. Present case came to be registered at PS I.P. Estate on the statement of Ram Kishore - complainant, made before SI Ramjeet.
It is case of prosecution that SI Ramjeet received information regarding commission of robbery, in front of DTC bus depot near Rajghat, Ambedkar Stadium, Delhi and reached Police Station at 8.40 p.m. This information was recorded vide DD no.31A and handed over to SI Ramjeet. That is how, Sub Inspector accompanied by Ct. Rajveer reached the bus terminal near Rajghat, FIR No.435/07 2 Ambedkar Stadium, Delhi, where Ram Kishore met him and made statement.
It is case of the prosecution that on 06.09.07 complainant - Ram Kishore and others namely Trilok, Nema Ram and Sarvan visited Okhla Mandi, No.125, Delhi. Ram Kishore collected a sum of Rs.3,05,000/ from Nawabuddin, whereas Trilok received a sum of Rs.3 lacs as sale proceeds of onions. They were also carrying two cheques of ICICI Bank. One cheque was worth Rs. 80,000/ and the other of Rs.94,879/ drawn on New Friends Colony Branch. Trilok, named above, had sold onions at shop no.124. He handed over a sum of Rs.2 lacs collected from shop no.124, to the complainantRam Kishore for safe custody. In the same bag, Ram Kishore was carrying his money, visiting card of Nawabuddin, his commission agent, his driving license and some clothes.
Further, it is case of prosecution that at about 6.00 p.m. Ram Kishore, Saravan, Nema Ram and Trilok reached Sarai Kale Khan bus stop. From there, they hired a TSR No.DL 1RC 4424 so as to reach Azadpur Mandi. TSR was being driven by Man Singh of Sonia Vihar. They started on their journey in the said TSR.
At about 7.00 p.m., when they reached the ITO flyover, two motorcycles reached there. There were two boys on each motorcycle. The motorcycles were parked in front of TSR. Three of the four boys surrounded the TSR, after having alighted from the motorcycles. One of them was armed with a knife. He demanded money, while extending threat to life of the occupants of the TSR. FIR No.435/07 3 Then those boys started snatching the bag which Ram Kishore - complainant had hung from his shoulder. Complainant and his companions resisted. At that time, the boy armed with knife inflicted injuries on the person of Nema Ram and Saravan. The bag was snatched. All the four boys made good their escape on their motorcycles. According to complainant, attempt was made to chase motorcyclists, but in vain.
One person was apprised of the occurrence and he informed the police. That is how, PCR and police reached the spot.
The injured were got medicolegally examined at LNJP Hospital. ASI Nirpal Singh and Ct. Ravinder reached LNJP Hospital where SI Ramjeet and other police officials were found present. After medical examination of Nema Ram, the doctor handed over one sealed parcel and impression of the seal of the hospital. The same was seized. Inspector Naresh Khanka reached the hospital and collected MLCs of Nema and Sarvan. He also recorded their statements and statement of other witness.
Inspector Naresh Khanka accompanied by PW Ram Kishore then reached the spot and prepared rough site plan.
Further, it is case of the prosecution that on 01.06.09 SI Ravinder Singh of SOS Sunlight Colony received some information about expected arrival of two boys at Okhla Mandi at about 6.00 p.m. Raiding party was constituted. At about 6.15 p.m. Mohd. Nazeem and Mohd. Saleem, accused were apprehended FIR No.435/07 4 from the disclosed place, while they reached their riding motorcycle no.DL 3SAL 8814. Both of them were apprehended. Mohd. Saleem and Mohd. Nazeem are alleged to have made disclosure statement and got arrested Mohd. Nasir, accused in pursuance of their disclosure statement. Mohd. Nasir was found in possession of motorcycle no. DL 6SX 6352.
Further, it is case of prosecution that Mohd. Nasir also made disclosure statement and got arrested Shahnawaj from the area of DDA Flats, Kalkaji, Delhi. During Test Identification Proceedings all the accused persons refused to participate therein.
3. On completion of investigation, challan was put in court. Copies of documents relied upon by the prosecution were supplied to the accused persons free of costs U/s 207 Cr.P.C. Case came to be committed to the Hon'ble Court of Session.
Charge
4. Prima facie case having been made out, charge for an offence U/s 394 & 397read with Sec.34 of IPC was framed against the accused persons on 14.10.2009, to which they pleaded not guilty and claimed trial. Thereupon, prosecution was called upon to lead evidence.
Prosecution Evidence
5.. In order to prove its case prosecution examined, following 14 witnesses: FIR No.435/07 5 PW1 ASI S.P. Singh, concerned To prove entries recorded by him in DD Duty Officer register from time to time in respect of this case.
PW2 Sh. Ombeer Sharma, To prove payment of Rs.3lacs to Trilok on Commission Agent 06.09.2007 as sale proceeds of onions. PW3 Sh. Vishnu, Commission To prove payment of Rs.70,000/80,000/ Agent in cash and by way of two cheques of ICICI Bank to Sarvan.
PW4 Sh. Ram Kishore Complainant.
PW5 Sh. Nema Ram Bhati One of the injured.
PW6 Sh. Sarvan Bhati Another injured.
PW7 Sh. Trilok An eye witness to the occurrence.
PW8 Maan Singh, TSR driver Another eye witness to the occurrence.
PW9 Hazi Yamin To prove payment of Rs.3 lacs to Trilok.
PW10 Pratap Singh, from transport To prove registration of motorcycle no.
authority DL 6SX 6352 in the name of Digvijay
Narain.
PW11 ASI Nirpal Singh Who reached Ambedkar bus terminal and
learnt that victim had left for police
station.
PW12 Nawabuddin To prove payment of Rs.3 lacs and two
cheques to Ram Kishore.
PW13 Ct. Rajveer Singh Who reached the spot in the company of
SI Ramjeet Singh and met Ram Kishore
there.
PW14 Inspector Naresh Khanka Who initially investigated the matter.
PW15 Sh. Dinesh Kumar Jain Whose mobile phone was used by the
police official in calling the PCR staff.
FIR No.435/07 6
PW16 Sh. Virender Singh Rawat, To prove registration of motorcycle from Transport authority of Sheikh no.DL3S AL 8814. Sarai PW17 Sh. Ashraf Khan Who purchased motorcycle no.DL 6SX 6352 from Digvijay Narain and sold it to Mohd. Nasir, accused.
PW18 Retd. ASI Mahender Singh Who also met Trilok at the spot and removed him to LNJP Hospital.
PW19 Ct. Dharamveer To prove PCR form Ex.PW19/A
containing information recorded on
06.09.2007 at 7.34 p.m.
PW20 HC Sunderpal Who communicated information from JPN
Hospital to PS I.P. Estate regarding arrival
of Nema Ram and Sarvan Kumar in
injured condition.
PW21 Ct. Sanjay To prove factum of arrest of all the four
accused.
PW22 SI Ravinder Singh To prove arrest and recoveries from all the
accused persons.
PW23 Sh. Sidharth Mathur, To prove that all the accused persons Metropolitan Magistrate refused to participate in Test Identification Proceedings.
PW24 Ct. Surinder To prove DD no.5 & 9 recorded on
01.06.09 of SOS Crime Branch.
PW25 Dr. Ravinder Kumar, CMO, To prove MLC Ex.PW25/A and 25/B in LNJP Hospital respect of Nema Ram and Sarvan prepared by Dr. Anuj Jain on 06.09.2007.
Statement of Accused
6. When examined U/s 313 Cr.P.C. the accused persons denied all the incriminating circumstances regarding recovery, appearing in evidence against FIR No.435/07 7 them and claimed false implication. However, the accused persons opted not to lead any defence evidence.
7. Arguments heard. File perused.
How case came to be registered?
8. Occurrence is alleged to have taken place on 06.09.07 at about 7.00 p.m. on ITO flyover of Ring Road within the jurisdiction of I.P. Estate. FIR Ex.PW1/B, on the statement of Ram Kishore - complainant was recorded at 10.20 p.m. Statement of Ram Kishore was recorded by SI Ramjeet Singh of PS I.P. Estate, at the spot. The SubInspector appended his endorsement to the statement Ex.PW4/A and that is how the case was registered.
While appearing in court as PW13 Ct. Rajveer Singh deposed about his arrival in the company of SI Ramjeet Singh at Ambedkar Stadium bus terminal, on the basis of DD no.31A and also about recording of statement of Ram Kishore, who was present there. Departure of Ranbeer Singh from the police station in the company of Rajveer stands established from the statement of PW1 ASI S.P. Singh. The witness has supported the case of prosecution about delivery of rukka at PS I.P. Estate and registration of the case.
First of all information reached PS Daryaganj and HC Bodan Lal, Duty Officer of PS Daryaganj, in turn, informed the police of PS I.P. Estate at about 8.40 p.m. In this regard, prosecution has examined PW11 ASI Nirpal Singh. According to witness, on 06.09.07 at about 7.40 p.m., he received DD no.27A FIR No.435/07 8 from Ct. Ravinder and then both of them reached Ambedkar Bus Depot. Inquiries made on reaching there revealed that victim had left for police station. According to witness, it transpired that the area where the occurrence had taken place fell within the jurisdiction of I.P. Estate and as such, he and Ct. Ravinder returned to PS Daryaganj. On reaching the police station, he came to know that injured had been shifted to LNJP Hospital. Then he reached the hospital and found SI Ramjeet Singh and other senior police official present there.
PW13 Ct. Rajveer Singh has deposed about having reached the LNJP Hospital and handed over the rukka and copy of FIR to SI Ramjeet Singh. According to witness Nema Ram was found lying admitted in the hospital. During his stay at the hospital, the witness collected one sealed parcel from duty Constable and produced the same before the IO. This parcel pertains to Nema Ram, injured. In his cross examination, PW13 stated that DD no.31A was received when he was present at the police station and that he accompanied SI Ramveer Singh from the police station itself.
Ocular Account
9. In this regard, prosecution has examined PW4 Ram Kishore, PW5 Nema Ram, PW6 Sarvan, PW7 Trilok and PW8 Man Singh.
PW4 According to PW4 Ram Kishore on 06.09.07, he Trilok, Sarvan and Nema Ram, reached Okhla Mandi, Delhi for sale of onions, which they had brought in FIR No.435/07 9 a truck. They sold onions in the mandi. At about 5.30 p.m., he received payment of Rs.3,05,000/ from Nawabuddin. Tilak Ram received payment Rs.1 lac and two cheques of ICICI Bank as sale proceeds. Further according to witness, he kept the entire amount of Rs.6,05,000/ and the two cheques in his bag.
PW5 According to PW5 Nem Ram, he had come to Okhla Mandi for sale of onions. At about noon time he met Ram Kishore, Trilok and Sarvan, who had also come there to sell onions. In the evening, they collected payment of sale proceeds. According to PW5, he collected Rs.75,000/ and kept the same in his bag.
PW6 PW6 Sarvan has deposed to have firstly visited Gazipur on 06.09.07 and then accompanied by Trilok reached the shop of Nawabuddin, commission agent, at Okhla Mandi. They collected payments and accompanied by Ram Kishore, Nema Ram and Trilok took a bus and reached Sarai Kale Khan bus stand. From there, they took a TSR to reach Azadpur.
PW7 PW7 Trilok has also deposed about his arrival at Okhla Mandi on 06.09.07 and to have collected a sum of Rs.3 lac in cash from Yamin. At the FIR No.435/07 10 said mandi, he also met Ram Kishore, Nema Ram and Sarvan, who too had sold onions. Further, according to PW7, he handed over the sum of Rs.3 lac to Ram Kishore, who kept the same in his bag.
PW9 PW9 Hazi Yamin has deposed that on 06.09.07 at the request of Dhan Raj, he instructed his Munim Ombir Singh to pay in cash a sum of Rs.3 lac. Further, according to the witness, Trilok was Munshi of aforesaid Dhan Raj, Mathania, Jodhpur, Rajasthan, doing business of onions. The witness has proved bills Ex.PW1/C and Ex.PW1/D regarding payment due i.e. of Rs.3,44,160/ and explained that it is against these two bills raised that a sum of Rs.3 lac was paid.
PW12 PW12 Nawabuddin has proved payment of Rs.70,000/ to Ram Kishore on 06.09.07. He has also proved payment of Rs.70,000/ to Nema Ram, in addition to two cheques drawn on ICICI Bank. The witness has proved bills Ex.PW3/B, Ex.PW3/C and Ex.PW3/D. Sh. Nawabuddin is a commission agent and having shop no.125, New Subzi Mandi, Okhla. It is in his statement that Ram Kishore and Nema Ram, both the residents of Jodhpur (Rajasthan) are farmers and supply him onions.
PW2 PW2 Ombir Sharma, was serving as Munshi at shop no. 134124, Okhla, FIR No.435/07 11 Subzi Mandi at the shop of Hazi Yamin. According to him, on 06.09.20074, Trilok, munshi of Dhanraj Sankla of District Jodhpur, Rajasthan came to their shop at about 3 pm as their two vehicles loaded with onions had reached their shop for sale.
PW2 has deposed about payment of Rs.3 lac as against sale of onion vide bill no. 265 dated 01.09.20074 and 274 dated 06.09.2007. According to PW2, actually a sum of Rs.3,44,016/ was due, as further stated by the witness. The witness has also proved seizure of the two bills vide memo Ex PW2/A. Both the bills are Ex PW2/B and C.
10. In the course of arguments, no contention has been raised challenging the testimony of PW2 Ombir Singh. Even otherwise, there is nothing in the statement of of Ombir Sharma to disbelieve the version regarding arrival of PW Trilok at the shop no. 134124, Okhla, Subzi Mandi, Delhi on 06.09.2007 and regarding payment of Rs.3, 00, 000/ to him against amoutn due vide bills no. 265 and 274.
PW3 PW3 Vishnu was serving as Munim at shop no. 125 i.e. of Nawabuddin, Commission agent in the area of Okhla Subzi Mandi. According to PW3 on 05.09.2007, Kishore resident of Jodhpur (Rajasthan) had come to their shop to collect payment against sale of onion. On 06.09.2007, Kishore left for the market to collect other payments. He returned to their shop at about 3 pm. At FIR No.435/07 12 that time, he was accompanied by 34 persons. PW3 further deposed about payment of Rs.3,05,000/ to Kishore in cash.
PW3 has also proved payment of Rs.70,000 / 80,000/ to Sarvan. He has deposed about delivery of two cheques drawn on ICICI Bank to Sarvan. The witness has also proved bills Ex PW3/B and C seizure by the police vide memo Ex PW3/A. He has also proved bill no. 687 dated 06.09.2007 Ex PW3/D i.e. in the name of Neema Ram.
When the witness was put leading questions by learned Addl. PP, he stated that the full name of Kishore is Ram Kishore. He volunteered that said person is generally called by the name of Kishore. Then he stated that he might have handed over the two ICICI cheques to Ram Kishore instead of Sarvan. It is also in his statement that Sarvan had collected the bill which was in the name of Neema Ram.
11. In the course of arguments, learned defence counsel has not challenged the testimony of PW3 Vishnu or the factum of issuance of bills referred to above.
Learned Addl. P.P. has referred to the statement of PW8 Maan Singh where he identified Mohd. Salim, accused involved in commission of crime and contended that there being nothing in the statement of PW8 Maan Singh to disbelieve his testimony, prosecution case against Mohd. Salim stands duly established.
On the other hand, learned defence counsel has submitted that this is a FIR No.435/07 13 case of no recovery from any of the accused persons and further that none of the witness to the occurrence has identified the accused persons present in court and as such, the prosecution has failed to substantiate this case against the accused persons.
As per prosecution version Ram Kishore, Trilok, Sarvan and Nema Ram were travelling in a TSR which they hired from near Sarai Kale Khan Bus stand to reach Azadpur Mandi. According to PW4 Ram Kishore after having left mandi, they took a bus from its gate and got down near Sarai Kale Khan bus stand and from there, they took a TSR.
It is also in the statement of PW4 Ram Kishore that as soon as TSR reached near the flyover of ITO, from behind, two motorcycles came. On one motorcycle, three persons were riding whereas on the other motorcycle, two persons were riding. Those motorcycles forced the TSR to stop and the persons from the motorcycles started hitting them with knife. Knife injuries were suffered by Sarvan and Nema Ram. According to PW4 Ram Kishore, his bag was snatched by those persons. All the accused persons then ran from the spot towards front side of the road.
So far as identity of the assailants is concerned, PW4 did not identify any of the accused persons, present in court. On seeing the accused persons, present in court, the witness expressed his inability to identify the accused persons present in court. Thereupon, learned Addl. P.P. sought permission to put leading FIR No.435/07 14 questions to the witness and when so examined, the witness did not support the case of prosecution on the point of identity of the accused. It is true that when so examined, the witness stated to have given description of one of the assailants, who was armed with knife and that he could identify those five boys who had robbed them. He rather specifically stated that the four accused persons present in court shown to him are not the persons involved in the occurrence. The fact remains that while making statement in court, PW4 Ram Kishore did not identify any accused persons, present in court.
PW5 Nema Ram Then there is statement of PW5 Nema Ram. This witness first of all narrated as to how he had come to Okhla Mandi to collect payment and after having collected payment left in the company of Trilok, Ram Kishore, Sarvan and Nema Ram reached Sarai Kale Khan bus stand by a TSR. Then the witness went on to state that as soon as their TSR reached flyover near I.P. Estate, two motorcycles came. There were two persons riding each motorcycle. They started assaulting them with knife, as a result of which he suffered knife blows on neck, back and the rear portion of the head. According to the witness, Sarvan also sustained injuries on his fingers. Those persons snatched the bag containing money from Ram Kishore and fled away. As regards identity of the accused persons, PW5 Nema Ram also did not identify any of the accused persons present in court. He too was put leading questions by learned Addl. P.P. FIR No.435/07 15 for State but the witness stated that four accused persons present in court, were not the persons involved in the occurrence. The fact remains that he has also not raised any accusing finger against any of the accused. PW6 Sarvan companion of Trilok, Ram Kishore and Nema Ram also narrated the manner in which he and his companion Nema Ram suffered injuries, when their TSR reached the flyover near I.P. Estate. According to witness, three persons were riding on one motorcycle and two were riding the other motorcycle. They started assaulting them with knife. According to the witness, he suffered injuries on the fingers of his left hand. The witness also deposed about the injuries suffered by Nema Ram, on his neck, back and rear portion of his head. He further deposed the manner in which one person snatched the bag containing a sum of Rs.6,05,000/ from Ram Kishore. The witness expressed that this amount included the amount of Nema Ram and Sarvan. So far as identity of the accused persons is concerned, the witness did not identify any one of them. Learned Addl. P.P. sought permission to put leading questions to the witness when so examined, the witness did not support the case of prosecution on the point of identity of the accused.
PW7 Trilok is fourth companion of Ram Kishore. He has also narrated the manner in which the occurrence took place by stating that two motorcycles came from behind and stopped their TSR on the flyover of ITO on 06.09.07 at about 7.15 p.m. Those persons assaulted them with knife. Trilok candidly FIR No.435/07 16 stated that he did not sustain any injury but Nema Ram and Sarvan suffered stab injuries. Further, according to him a sum of Rs.6,05,000/ contained in the bag belong to him and Ram Kishore, which the aforesaid persons snatched away. So far as identity of the accused persons is concerned, the witness did not support the case of prosecution.
PW8 Then there is statement of PW8 Maan Singh. He was driver of TSR in which Ram Kumar and three others were travelling on 06.09.2007 at 06.30 pm. According to him, on 06.09.2008, at about 6.30 pm four passengers hired his TSR from Sarai Kale Khan to go to Azadpur on payment of fare of Rs.80/. When they were travelling in the TSR and reached ITO bridge, two motorcycle took over the TSR. One motorcycle took over from the left side and other from the right side. Then both the motorcycles were made to stop in front of TSR.
Further according to PW8, two persons alighted from the motorcycles and came near TSR. They took position on both sides of the TSR. They were having knives in their hands. They started snatching the bag from the passengers who was present on the rear seat. According to PW8, passengers resisted but they were inflicted injuries on their hands and neck with knife. After having snatched the bag, the motorcycle fled towards Raj Ghat.
So far as identity of the accused persons is concerned, PW8 stated that he could identify those persons who were having knives and snatched bags from the FIR No.435/07 17 passengers. Then the witness specifically pointed towards Mohd. Salim as the person who had snatched the bag from the passengers.
As regards the other three accused persons in the Court, PW8 stated that he could neither admit nor deny their presence and involvement in the occurrence, as it happened in a shot span of time.
In his cross examination, PW8 Maan Singh stated that persons who were riding the motorcycle, were not wearing helmets. In this situation, it was not difficult for the TSR driver (PW8) to identify the motorcyclist. It has come in his cross examination that during investigation, he was kept by the police of PS I P Estate and released after four days. There is nothing in the statement of PW8 that he was inimical towards accused Mohd. Salim or interested in the prosecution or any of the passengers.
It is true that in his cross examination PW8 Maan Singh could not remember exact number of the persons involved in the occurrence, but he furnished a just explanation in this regard. According to PW8, he was paying more attention towards his right side and as such he could not know as to how many persons were present there on the left side. At the time of such an occurrence, it is difficult for a witness to move, as there is always danger of being attacked by the accused persons as an when there is any movement by the victim or eye witness. It is significant to note that when PW8 was under cross examination, he was not suggested from the side of defence that on the given FIR No.435/07 18 date, time and place, he was not driving the TSR with passengers in it or that he was not present at the time of occurrence.
A perusal of statement of Ex PW4/A made by Ram Kishore before police would reveal that he specifically mentioned therein TSR number i.e. DL1RC 4424 i.e. of the TSR which they had hired to go Azadpur. Even name of Maan Singh TSR driver finds mention in the statement. Both these facts further lend corroboration to the version of the prosecution regarding presence of Maan Singh on the given date, time and place.
Impact of nonidentification by passengers
12. It is true that none of the four passengers has identified any of the accused including Mohd. Salim, but this fact does not come to the help of Mohd. Salim accused particularly when, as mentioned above, there is nothing on record to suggest as to why he would falsely depose about his involvement in commission of a serious crime like the present one.
It is well settled that it is not quantity but quality of evidence, which matters. In the given facts and circumstances, even if only PW8 Maan Singh has established identity of Mohd. Salim as one of the assailants and other four witnesses to the occurrence have not raised any accusing finger against him, it cannot be said that Mohd. Salim was not involved in commission of the crime or that he has been falsely implicated.
FIR No.435/07 19
Earlier untraced report was given its impact.
13. Learned defence counsel has contended that Inspector Naresh Khanka who initially investigated the matter had submitted untraced report but SI Ravinder Singh is alleged to have apprehended all the four accused on one day i.e. 01.06.2009. Learned defence counsel has submitted that when the earlier IO could not trace any of the accused, it remains unexplained as to how SI Ravinder Singh could apprehend all the four accused on the same day.
PW4 Inspector Naresh Khanka has deposed about investigation conducted by him ever since recording of the FIR. According to the Inspector, after recording of the FIR he reached LNJP hospital where Sarvan Bhatti and Nema Ram were lying admitted. He collected MLC of both these injured. Blood stained Tshirt of Nema Ram was also seized when produced by the doctor in a sealed parcel. Further, according to the Inspector, he visited the spot in the company of Ram Kishore and prepared site plan Ex PW14/A. Then he deposed about seizure of bills vide separate memo in proof of payments made to Ram Kishor, Trilok, Sarvan and Nema Ram.
It is true that Inspector Naresh Khanka admitted in his cross examination that during the period investigation remained with him, he did not come across any evidence or circumstance suggesting involvement of accused persons present in court. But this fact does not come to the help of Mohd. Salim, particularly when Mohd. Salim and his companions were apprehended on FIR No.435/07 20 01.06.2009 by SI Ravinder Singh on taking over investigation.
Arrest and Recoveries
14. To prove arrest of Mohd. Salim and his companions, prosecution has relied upon statement of PW21 Ct. Sanjay and PW22 SI Ravinder Singh. According to PW22 SI Ravinder Singh, on 01.06.2009 at about 10.45 am, he received secret information that two boys involved in present robbery would reach Okhla Mandi at about 6 pm. He got this information recorded in DD No. 5 Ex PW22/A. A perusal of Ex PW22/A would reveal that it was recorded at SOS Crime Branch on 01.06.2009 at 11 am by SI Ravinder Singh itself. The contents of the DD entry lend support to the version narrated by SI Ravinder Singh regarding receipt of secret information about expected arrival of two persons near Okhla Mandi at about 6 pm. It is in the statements of PW21 Ct. Sanjay and PW22 SI Ravinder Singh that at about 6.15 pm Mohd. Nazim and Mohd. Salim accused reached the bank gate of Okhla Mandi, riding black pulsar motorcycle DL 3S AL 8814. Both of them were apprehended at the pointing out of the secret informer who were accompanying them.
Ex PW21/A & B are the arrest memos of Mohd. Salim and Mohd. Nazim. These depict date and time of arrest of both these accused from near bank gate, Okhla Subzi Mandi. These memos lend corroboration to the version of the FIR No.435/07 21 prosecution regarding arrest of Mohd. Salim and Mohd. Nazim from the aforesaid place on 01.06.2009. Seizure memo Ex PW22/C is in proof of seizure of motorcycle which these two accused persons were riding at the time they were apprehended.
Arrest memos Ex PW21/A and B bear attestation of Ct. Sanjay. There personal search memos Ex PW21/C & D also bear attestation of Ct. Sanjay.
Mohd. Salim has not brought on record any evidence to suggest that he was not apprehended in the manner narrated by PW22 SI Ravinder Singh and PW 21 Ct. Sanjay.
It is case of prosecution that other two accused Mohd. Nazim and Shehnawaz were also arrested by SI Ravinder Singh and Ct. Sanjay on the same day in pursuance of disclosure statements made by Mohd. Salim and Mohd. Nazeem.
All these four accused according to PW22 Ravinder Singh were kept in muffled face. On 02.06.2009, an application was moved by SI Ravinder Kumar for holding of Test Identification Parade in respect of identification of all these four accused. They were produced before PW23 Sh. Siddharth Mathur, Metropolitan Magistrate, Delhi, on the same day i.e.02.06.2009. At that time, they were produced with their faces muffled. But as is available from the TIP all of them refused to participate in the Test Identification Proceedings. According to PW23 Sh. Siddharth Mathur, Metropolitan Magistrate, he had FIR No.435/07 22 warned the accused persons that from their refusal adverse inference might be drawn against them but still they insisted on their refusal.
Statement of PW23 has gone unchallenged for want of any cross examination despite opportunity.
There is nothing in the statement of prosecution witnesses that PW Maan Singh had the opportunity to see Mohd. Salim accused prior to recording of his statement in Court as PW8. Therefore, an adverse inference is to be drawn against Mohd. Salim from his refusal when as noticed above, PW8 Maan Singh while appearing in Court duly identified Mohd. Salim as one of the assailants who were involved in the commission of the robbery.
Involvement of Mohd. Nazim, Mohd. Nasir and Shahnawaz
15. So far as other accused namely Mohd. Nasir, Mohd. Nazim and Shenawaz are concerned, as noticed above, none of the passengers or the TSR driver Maan Singh has identified any one of them as one of the assailant.
As regards Mohd. Nazim, prosecution has not led any evidence that any stolen property was recovered from him. So far as recovery of motorcycle vide memo Ex PW22/C is concerned, it is not in the statement of any of the witnesses that this motorcycle was used in commission of crime. Simply because the motorcycle belongs to the Mohd. Nazim, it cannot be said that he was involved in commission of the present crime particularly when number of the motorcycle does not find in the statement of Ram Kishore, which led to registration of this FIR No.435/07 23 case or in statements of passengers and Maan Singh made in Court.
As regards, Mohd. Nasir @ Pehlwan accused is concerned, it is case of the prosecution that he was arrested on the basis of disclosure statement made by Mohd. Nasim and Mohd. Salim and motorcycle DL 6SX 6532 was recovered from his possession. There is nothing in the statement of any of the passengers or PW8 Maan Singh that motorcycle DL 6SX 6532 was used in commission of present crime. In the given circumstances, from simple refusal of Mohd. Nasir to participate in TIP proceedings, no adverse inference can be drawn against him.
In order to prove discovery of a fact in pursuance of disclosure statement, it is for the prosecution to prove as to what was disclosed by an accused and which fact was discovered in pursuance thereof. However in this case, Court finds that neither PW22 SI Ravinder Singh nor PW21 Ct. Sanjay deposed as to what was disclosed by both of them. Simply because there statements were got exhibited, the same cannot be read into evidence to say that factum of involvement of Mohd. Nazim was disclosed in pursuance of any such disclosure statement.
Therefore, arrest of Mohd. Nasir and recovery of motorcycle from his possession does not connect him with the commission of the present crime. In the given circumstances, from simple refusal of Mohd. Nasir to participate in FIR No.435/07 24 TIP proceedings, no adverse inference can be drawn against him.
Accused Shehnawaz is stated to have been apprehended at the instance of accused Mohd. Nasir @ Pehlwan. In this regard, prosecution has relied upon disclosure statement Ex PW21/E. But it is significant to note that this disclosure statement is inadmissible in evidence as neither PW21 Ct. Sanjay nor PW22 SI Ravinder Singh deposed as to what was disclosed by accused Mohd. Nasir and which fact was discovered in pursuance thereof. Further more nothing incriminating was recovered from accused Shehnawaz. In the given circumstances, from simple refusal of Shah Nawaz to participate in TIP proceedings, no adverse inference can be drawn against him also.
Was anyone apprehended at the spot?
16. It has been submitted by learned defence counsel that as per information received by the police one person had been apprehended at the spot, but the prosecution has not explained as to who was the said person and why he was not arrested.
PW13 Ct. Rajvir Singh was accompanying SI Ramjeet Singh at the time he left PS I P Estate for the spot, met Ram Kishore and recorded his statement. There is nothing in the statement of PW13 that any person had been apprehended by Ram Kishore. PW14 Inspector Naresh Khanka who initially investigated the case, admitted in his cross examination that as per information FIR No.435/07 25 recorded in DD No. 13A Ex PW14/C, one person had been apprehended. However, witness explained that when he inquired into the matter, no such person was found to have been apprehended. Even all the passengers of the TSR namely, Trilok Singh, Ram Kishore, Nema Ram and Sarvan have denied that any person was apprehended at the spot. Therefore, there is no merit in the contention raised by learned defence counsel.
17. In view of the above discussion, this Court finds that prosecution has fully established its case against accused Mohd. Salim regarding his involvement in the robbery which took place on 06.09.2007 at 6.30. pm on the ITO Flyover in the area of IP Estate when a sum of Rs.6,05,000/ were robbed from Ram Kishore while he was travelling alongwith his three companions. Accordingly, accused Mohd. Salim is held guilty of the offence under Section 392 read with Section 34 IPC.
18. As regards other three accused persons namely Mohd. Nasir @ Pehlwan, Mohd. Nazim and Shahnawaz, prosecution has failed to establish its case against them beyond reasonable doubt. Accordingly, extending benefit of doubt, accused Mohd. Nasir @ Pehlwan, Mohd. Nazim and Shahnawaz are acquitted of the charge framed against them.
Let convict Mohd. Salim be heard on the point of sentence.
Announced in Open Court
on 01.08.2012 (Narinder Kumar )
Additional Sessions Judge (Central) Delhi.
FIR No.435/07 26