Delhi District Court
State vs . (1). Daulat @ Kalia on 29 April, 2015
FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 52/1/14 Unique Case ID No. 02404R0328402012 State Vs. (1). Daulat @ Kalia S/o Sh. Rattan Singh R/o H.No. 927/T, Nehru Nagar, Anand Parbat, Delhi. (2). Amarjeet @ Monu S/o Sh. Dharambir Singh R/o Village Bond Kalan, PS Bond, Distt. Bhiwani, Haryana. (3). Hari Mohan S/o Sh. Dashmi R/o Village Chaklalitora, PS G.N. Pur, Distt. Azamgarh, U.P. (4). Ravi S/o Sh. Vikram R/o H.No. 524, Village Khera Khurd, Delhi. (5). Lalit S/o Sh. Om Prakash R/o I65, Mangol Puri, Delhi. (6). Ajay Bhalla S/o Sh. Ram Singh R/o C4/311, Sultanpuri, Delhi. State V/s Daulat @ Kalia etc. Page 1 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015 (7). Sandeep @ Rahul S/o Sh. Rakesh Gupta R/o D3/19/5, Rama Vihar, Delhi. FIR No. : 333/2012 Police Station : Mangol Puri Under Sections : 365/392/397/411/34 IPC 25/27/54/59 Arms Act. Date of committal to Sessions Court : 30.04.2013 Date on which judgment was reserved: 29.04.2015 Date on which Judgment pronounced : 29.04.2015 JUDGMENT
BRIEF FACTS OF THE CASE:
1. The case of the prosecution as per the charge sheet is as under:
(i) That on 02.09.2012 at about 8.40 p.m., information regarding the incident of robbery was recorded vide DD no. 34A at PS Mangol Puri. Said DD no. 34A was entrusted to SI Ved Pal Sharma;
(ii) That SI Ved Pal Sharma (PW19) recorded statement of complainant Vishnu B. Patel wherein he claimed that he was working as Salesman in Patelmukasashbhai Naraindas & Company, situated at 287, Kucha Ghasi Ram, Fatehpuri, Chandni Chowk, Delhi. On 23.08.2012 at about 1.45 pm, after collecting the payment of advance to the tune of Rs. 15,85,850/ from various shopkeepers, while he alongwith another salesman namely State V/s Daulat @ Kalia etc. Page 2 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015 Sh. Suresh was standing at bus stop, in the meantime, one white colour Zen Car came from the side of Mangol Puri and stopped near them. There were four persons sitting in the said car, out of which three persons came outside the said car and asked them to sit in the said car on the point of pistols. Despite their objection, they forcibly made them to sit on the rear seat of the said car. Out of those three persons, two persons having pistols sat with them on the rear seat and third one sat on the front seat near driver of the aforesaid car. They took them to a lonely place situated near shamshan ghat and in the meantime, they robbed the black colour bag containing cash amount and mobile phone from complainant Vishnu Patel. They threw them outside the said car near Shamshan Ghat. One person who was standing at said place, sat inside the car and they fled away by threatening them to kill if the incident was reported to the police. Due to immense fear, they went to their respective native places and returned back to Delhi after 24 days of the incident;
(iii) That on the basis of said statement, SI Ved Pal Sharma (PW19) prepared rukka and got the FIR in question registered. He also prepared site plan of the place of occurrence. He also recorded statements of the witnesses. After completion of investigation, chargesheet had been filed before the Court.
2. After compliance of section 207 Cr.P.C., the case was State V/s Daulat @ Kalia etc. Page 3 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015 committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
CHARGES FRAMED AGAINST THE ACCUSED PERSONS
3. After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charges U/s 397 IPC & 25/27 Arms Act against accused persons namely (1) Daulat @ Kalia, (2) Hari Mohan and (3) Amarjeet and separate charges U/s 365/392/34 IPC against accused persons namely (1) Daulat @ Kalia, (2) Hari Mohan, (3) Amarjeet and (4) Sandeep @ Rahul and also separate charge U/s 411 IPC against all the seven accused persons vide order dated 02.09.2013, to which they pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined as many as twenty witnesses namely PW1 Ct. Sunil Kumar, PW2 Sh. Suresh Kumar, PW3 Sh. Dinesh Parihar, PW4 Sh. Sumit Singhal, PW5 Sh. Jogi Ram, PW6 SI Janak, PW7 Sh. Ved Prakash Mittal, PW8 WHC Meenakshi, PW9 Ms. Rajni Ranga, PW10 HC Bhuwan Chander, PW11 HC Mahavir Prasad, PW12 HC Chander Bhan, PW13 Sh. Ganpat Bhai, PW14 Sh. Manish Jain, PW15 Sh. Ashok Kumar, PW16 Sh. Ram Dhari, PW17 Ct. Dinesh Kumar, PW18 Sh. Ashok Dalmia, PW19 SI Ved Pal and PW20 SI Avdesh during trial.
5. It may be noted here that Ld. Additional PP dropped PWs namely PW Ct. Narender, Ct. Dharmender, Ct. Sanjay, Ct. Umesh, Ct. Pravesh, Ct. Banwari and Ct. Hoshiyar from the list of witnesses on 06.04.2015 and 25.04.2015 as the said witnesses were of repetitive facts or State V/s Daulat @ Kalia etc. Page 4 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015 formal witnesses.
6. It may be mentioned here that all the seven accused persons made joint statement during trial on 25.04.2015 that they were not disputing the contents of Ballistic report dated 31.10.2012 and sanctions U/s 39 Arms Act, both dated 28.02.2013, relied by prosecution in the present case. Accordingly, the Ballistic report was exhibited as Ex. PX and sanctions U/s 39 Arms Act were exhibited as Ex. PY and Ex. PY1 on 25.04.2015 and consequently, Ld Additional PP also dropped PWs namely Sh. Puneet Puri, Sr. Scientific Officer (Ballistic) and Sh. M.A. Rizvi, the then Additional DCP, Outer District, Delhi, from the list of witnesses in view of the said statement.
7. Thereafter, statements U/s 313 Cr.P.C. of all the seven accused persons were recorded during which all the incriminating evidence were put to them, which they denied. The defence of all the accused persons is of general denial. All the accused persons claimed that they have been falsely implicated in this case. However, all the accused persons did not wish to lead Defence Evidence.
8. I have heard Sh. Pankaj Bhatia, Ld. Additional PP on behalf of State, Ld. counsel Sh. Suresh Tomar, Adv. on behalf of accused namely Lalit, Ravi and Ajay Bhalla, Sh. Praveen Dabas, Adv. for accused Daulat @ Kalia, Amarjeet @ Monu and Sandeep @ Rahul and Ld. Amicus Curiae for accused Hari Mohan. I have also gone through the material available on record.
State V/s Daulat @ Kalia etc. Page 5 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015
9. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses examined during trial. The testimonies of prosecution witnesses is detailed as under: PUBLIC WITNESSES
10. PW2 Sh. Suresh Kumar: As per the case of prosecution, incident in question occurred in the presence of this witness. He entered into witness box and deposed on the lines of prosecution and deposed that incident of robbery of cash amount was committed by four persons who had come in Maruti Zen Car on 23.08.2012 near Bus Stand, Mangolpuri, Delhi during noon hours. He narrated the facts which led to the incident in question whereby assailants robbed their bag containing cash sum of Rs. 15,85,850/ received by them from various shopkeepers of Stone Market, Mangolpuri just prior to the incident. He also described that three of the assailants were carrying pistols with them. He claimed that he could identify the offenders involved in the incident but when attention of the witness was drawn towards accused of this case, he testified that none of those accused were amongst robbers/offenders. However, he correctly identified black colour bag (Ex.P4) allegedly recovered from accused namely Daulat @ Kalia, during trial to be the same bag, which was containing cash amount of Rs. 15,85,850/ and was robbed by the offenders.
However, the witness could not identiy two country made pistols produced during trial as he claimed that he could not say if said State V/s Daulat @ Kalia etc. Page 6 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015 pistols were the same pistols, which were used by the offenders during the commission of offence.
In his cross examination, he admitted that the black colour bag (Ex.P4) was not recovered in his presence from any of the accused persons. He also admitted that bags similar to the bag (Ex.P4) are easily available in open market and also that they had not written their names or addresses and had also not put any identification mark on the bag (Ex.P4).
11. PW3 Sh. Dinesh Parihar: This witness is the owner of the firm Patel Mukeshbhai Naraindas & Company wherein complainant Vishnu Patel and Suresh (PW2) were employed as salesmen. He deposed that on 23.08.2012, his salesmen namely Vishnu Patel and Suresh had gone to Stone Market, Mangolpuri to collect payment from the shopkeepers but they did not return. On enquiry, he was told by them that four persons who had come in one Maruti Zen Car, had committed robbery of cash sum of Rs. 15,85,850/ on 23.08.2012 and due to fear, both of them had gone to their respective villages. He had handed over details of payment collected from the shopkeepers, to the police. The said details were seized by the police vide memo Ex.PW3/A. He also exhibited written details of cash as Ex.PW3/B1 to Ex.PW3/B6. He further deposed that he got the cash amount recovered during the investigation, released on superdari vide Indemnity Bond and superdarinama Ex.PW3/D and Ex.PW3/E. He also identified black colour bag (Ex.P4) to be the same bag which was provided by his company to Vishnu Patel and Suresh.
In his cross examination, he deposed that no authority letter State V/s Daulat @ Kalia etc. Page 7 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015 was given to Vishnu Patel and Suresh for collecting payment from shopkeepers on behalf of their company. There was no appointment letter concerning appointment of Vishnu Patel and Suresh in his company. He did not lodge any complaint with the police between 23.08.2012 to 01.09.2012. He admitted that no payment was collected by Vishnu Patel and Suresh from any shopkeeper in his presence on 23.08.2012 and he had no personal knowledge about the facts of the case.
12. PW4 Sh. Sumit Singhal, PW5 Sh. Jogi Ram, PW7 Sh. Ved Parkash Mittal, PW13 Sh. Ganpati Bhai, PW14 Sh. Manish Jain, PW15 Sh. Ashok Kumar, PW16 Sh. Ram Dhari and PW18 Sh. Ashok Dalmia: All these witnesses are the shopkeepers running their shops in Stone Market, Mangolpuri. All of them deposed that they had paid different amount as mentioned in their testimonies to Vishnu Patel and Suresh who were employees of Patel Mukeshbhai Naraindas & Company. Some of them also proved the relevant documents handed over by them to the police confirming therein that they had actually made payment to said two employees of Patel Mukeshbhai Naraindas & Company on 23.08.2012 Nothing material came on record during cross examination of all these witnesses.
POLICE WITNESSES
13. PW1 Ct. Sunil Kumar and PW19 ASI Ved Pal: Out of these two witnesses, PW19 is the IO of this case whereas PW1 had accompanied IO during investigation on 04.09.2012 alongwith other police State V/s Daulat @ Kalia etc. Page 8 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015 officials. They deposed about the relevant investigation carried out with regard to apprehension of accused persons and recovery of different cash amount from the accused persons except accused Sandeep @ Rahul as well as about the relevant writing work and other proceedings carried out during investigation.
PW19 deposed that he had recorded statement Ex.PW19/A of complainant Vishnu Patel on the basis of which, he prepared rukka (Ex.PW19/B) and got the FIR registered in this case. He also prepared site plans (Ex.PW19/C and Ex.PW19/D) of the places of occurrence at the instance of complainant Vishnu Patel and Suresh.
Both these witnesses have been cross examined at length on behalf of accused persons.
14. PW6 SI Janak Raj: This witness was posted as Duty Officer in PS Mangol Puri on 02.09.2012. He has proved factum regarding registration of FIR in question by him on the basis of rukka produced by SI Ved Pal. He exhibited copy of FIR in question as Ex.PW6/A. He also proved Certificate U/s 65B of Indian Evidence Act as Ex.PW6/B and his endorsement on the rukka as Ex.PW6/C. He further deposed that on 04.09.2012 at about 4.05 pm, he had received information regarding collection of offenders involved in the present case, at House no. B110, Bhagya Vihar, Mangal Bazar Road, Mubark Pur, Delhi. He recorded the said information in roznamcha vide DD no. 25A. He proved copy of said DD entry as Ex.PW6/D. He further deposed that on the same day i.e. 04.09.2012 at State V/s Daulat @ Kalia etc. Page 9 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015 about 4.10 pm, police officials namely SI Ved Pal alongwith HC Chander Bhan, Ct. Narender Kumar, Ct. Sunil, Ct. Sanjay and Ct. Dharmender had left PS in connection with investigation of the present case and he recorded the said information in roznamcha vide DD no. 26A. He proved copy of same as Ex.PW6/E. During cross examination, he deposed that he had not seen the private vehicle in which aforesaid police officials had left PS. He also could not tell about the registration number or details of owner of the said vehicle.
15. PW8 WHC Meenakshi: This witness was posted as Duty Officer at PS Mangol Puri. On 20.09.2012 at about 10.20 pm, she had received information through telephone regarding arrest of accused Sandeep @ Rahul in the present case. She had recorded the said information in roznamcha vide DD no. 15A. She proved copy of said DD as Ex.PW8/A. This witness has not been cross examined by the accused persons despite grant of opportunity.
16. PW10 HC Bhuwan Chander: This witness was working as MHC(M) at PS South Rohini. He produced register no. 19 containing entry at serial no. 3802 regarding deposit of personal search articles, sealed pullanda containing cash amount of Rs. 2,50,000/, one Hyndai Ascent Car bearing No. DL7CE1875, one Hyndai Ascent Car bearing No. DL4CM 3861, sealed pullanda containing cash amount of Rs. 30,000/ and another sealed pullanda containing cash amount of Rs. 70,000/. He proved the copy of said entry as Ex.PW10/A. State V/s Daulat @ Kalia etc. Page 10 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015 This witness further deposed that he had sent one sealed pullanda containing cash amount of Rs. 2,50,000/ to PS Mangol Puri vide RC no. 145/21/12 through Ct. Dinesh Kumar. He proved copy of said relevant entry as Ex. PW10/B. This witness has not been cross examined on behalf of accused persons despite grant of opportunity.
17. PW11 HC Mahavir Prasad: This witness was working as MHC(M) in Malkhana of PS Mangol Puri on 04.09.2012 when SI Ved Pal Sharma had deposited the case property seized in the present case in Malkhana vide entry at serial no. 6253 in register no. 19. He proved copy thereof as Ex.PW11/A. He further deposed that on 18.09.2012, SI Ved Pal Sharma had deposited one Maruti Zen Car of White colour bearing registration no. DL4CE9761 and he had made entry in register no. 19 at serial no. 6281 and deposited the said car in the Malkhana. He proved copy of relevant entry as Ex.PW11/B. He further deposed that on 03.10.2012, he had handed over two sealed pullanda containing katta and one live cartridge each to Ct. Parveen vide RC no. 100/21/12. He proved copy of same as Ex.PW11/C. In his cross examination, he admitted that no endorsement was made by him against entry Ex.PW11/A that pullandas handed over to Ct. Parveen Kumar, were sealed with the seal of VPB. He also admitted that there is an overwriting in the name of SI Ved Pal Sharma on the relevant entry Ex.PW11/B. State V/s Daulat @ Kalia etc. Page 11 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015
18. PW12 HC Chander Bhan: This witness had joined investigation of this case on 04.09.2012 with IO SI Ved Pal Sharma and other police officials when accused Amarjeet @ Monu, Daulat @ Kalia, Ravi and Hari Mohan are claimed to have been arrested from first floor of H. No. B110, Bhagya Vihar, Mangal Bazar Road, Mubarkpur, Delhi, on the basis of secret information. However, this witness failed to identify accused Daulat @ Kalia, Ravi and Hari Mohan during trial but correctly identified accused Amarjeet @ Monu.
He deposed that one country made pistol loaded with one cartridge was recovered from the possession of accused Daulat @ Kalia and cash amount of Rs. 2,80,000/ was also recovered from wearing pant of said accused. Besides the same, one black colour bag was also recovered from the possession of said accused. He further deposed that one country made pistol loaded with live cartridge was recovered from possession of accused Amarjeet @ Monu and also cash amount of Rs. 2,80,000/ was recovered from wearing pant of said accused. He further deposed that one knife (chura) was recovered from possession of accused Hari Mohan and cash amount of Rs. 2,80,000/ was also recovered from wearing pant of said accused. He also deposed about the relevant writing work and proceedings carried out at the said place with regard to recovery of arms, ammunitions and cash amount from said three accused persons. He further deposed that all the aforesaid four accused persons were arrested vide memos Ex.PW1/L1 to Ex.PW1/L4 and said accused also made disclosure statements Ex.PW1/N1 to Ex.PW1/N4. He also deposed that all the said State V/s Daulat @ Kalia etc. Page 12 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015 accused persons led the police party to H. No. C4/311, Sultanpuri, Delhi and got arrested accused Ajay Bhalla but he could not identify said accused during trial. He deposed that a sum of Rs. 75,000/ was got recovered at the instance of accused Ajay Bhalla from one iron almirah kept inside the room of his house. He also deposed about the relevant proceedings carried out in that regard.
He also deposed that all the aforesaid accused persons led the police party to the house of accused Lalit i.e. H.No. 65, IBlock, Mangolpuri, Delhi and got arrested accused Lalit but he could not identify said accused during trial. He deposed that a sum of Rs. 75,000/ was got recovered at the instance of accused Lalit from over the bed lying inside the room of his house. He further deposed that accused persons had pointed out the place of incident vide pointing out memos Ex.PW1/S1 to Ex.PW1/S3.
In his cross examination, he could not disclose the name of owner of H. No. B110, Bhagya Vihar, Mangal Bazar Road, Mubarkpur, Delhi. He admitted that there were several residential houses situated near said house, but claimed that IO did not make any effort to request those residents for joining the proceedings. However, he explained that IO had requested 23 passersby to join the proceedings but they left without disclosing their names and addresses. He denied other suggestions given to him on behalf of accused persons.
19. PW17 Ct. Dinesh Kumar: He deposed that on 13.10.2012, he had deposited sealed pullanda containing cash amount of Rs. 2,50,000/ vide RC no. 145/21/12 in the Malkhana of PS Mangolpuri. This witness has State V/s Daulat @ Kalia etc. Page 13 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015 not been cross examined by accused persons despite grant of opportunity.
20. PW20 ASI Avdesh: This witness was posted in PS South Rohini on 19.09.2012 when he alongwith Ct. Dharmender are claimed to have apprehended accused Sandeep @ Rahul in case FIR No. 333/12 of PS South Rohini and recovered a sum of Rs. 2,50,000/ from the dash board of Ascent Car bearing No. DL4CM3861. He deposed that accused Sandeep @ Rahul disclosed during interrogation that said amount was part of the robbed amount of the present case. He prepared kalandra U/s 41.1(d) Cr.P.C. vide DD No. 4A of PS South Rohini in that regard. The said kalandra has been exhibited as Ex.PW20/B and disclosure statement of accused Sandeep @ Rahul as Ex.PW20/A. He also exhibited copy of seizure memo of Rs. 2,50,000/ as Ex.PW20/E. In his cross examination, he deposed that he did not request any public person to join the proceedings after apprehension of accused Sandeep @ Rahul. He denied the relevant suggestions put to him during cross examination on behalf of accused persons.
FORMAL WITNESSES:
21. PW9 Ms. Rajni Ranga: This witness had conducted judicial TIP of accused persons namely Daulat @ Kalia, Ravi and Hari Mohan on 14.09.2012 vide TIP proceedings Ex.PW9/J to Ex.PW9/L respectively. She also conducted judicial TIP of accused Amarjeet @ Monu on 15.09.2012 vide TIP proceeding Ex.PW9/E. She also conducted judicial TIP of accused Sandeep @ Rahul on 01.10.2012 vide TIP proceeding Ex.PW9/B. State V/s Daulat @ Kalia etc. Page 14 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015 According to all those TIP proceedings, the aforesaid five accused persons were correctly identified by complainant Vishnu Patel.
This witness had also conducted TIP of case property i.e. one black colour bag on 04.10.2012 vide TIP proceeding Ex.PW9/O. She has not been cross examined on behalf of accused.
ARGUMENTS ADVANCED AND CASE LAW CITED
22. At the very outset, Ld. Additional PP fairly submitted that for want of sufficient and cogent evidence available on record pointing out towards the accused who had used deadly weapon at the time of commission of robbery, offence punishable U/s 397 IPC could not be proved against any of the accused persons. However, after referring to the testimonies of prosecution witnesses examined during trial and the documentary evidence available on record, Ld. Additional PP urged that prosecution has been able to establish the charge in respect of offences punishable U/s 365/392//34 IPC levelled against all the accused persons beyond doubt. He further argued that there has been recovery of cash amount from the possession of accused persons and therefore, accused should also be convicted by the Court for the offence punishable U/s 411 IPC. He further argued that accused Daulat @ Kalia, Hari Mohan and Amarjeet @ Monu were found in possession of arms and ammunitions and thus, they should also be convicted for the offence punishable U/s 25 Arms Act.
State V/s Daulat @ Kalia etc. Page 15 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015
23. Per contra, Ld. defence counsels vehemently argued that prosecution has miserably failed to establish its case against any of the accused persons beyond reasonable doubt. They also referred to the testimony of star witness of the prosecution namely PW2 namely Suresh Kumar, in order to bring home their point that said witness has not identified any of the accused persons to be the assailants who had committed robbery against them.
24. It is important to note that the prosecution had cited two eye witnesses in order to establish the charges levelled against the accused persons. As per the case set up in the chargesheet, four of the accused persons in furtherance of their common intention, had abducted complainant Vishnu Patel and Suresh Kumar (PW2) by forcibly making them to sit in their Maruti Zen Car on the alleged date, time and place. Thus, both the said witnesses alone could have proved the charge for the offences punishable U/s 365/34 IPC. Similarly, said two witnesses alone could have thrown sufficient light with regard to the offence punishable U/s 397 IPC as also with regard to offence punishable U/s 392/34 IPC.
25. It is pertinent to note that out of aforesaid two public witnesses, complainant namely Vishnu Patel did not enter into witness box as the prosecution failed to produce the said witness during trial despite grant of numerous opportunities. Summons were repeatedly issued to the said witness not only through concerned police station but also through concerned IO as well as concerned DCP, but all the time, the summons had been returned back with the consistent reports that the said witness was not State V/s Daulat @ Kalia etc. Page 16 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015 traceable and his present whereabouts could not be ascertained. Not only this, father and real brother of the said witness, also appeared before the Court on 06.04.2015 and made statements that they had no knowledge about the present whereabouts of the said witness as the witness had left their house about 1½ year ago. IO SI Ved Pal also made statement in this regard before the Court. Considering all these facts and circumstances, the opportunity of prosecution to produce the said witness had been closed by the Court on 06.04.2015.
26. Apart from the complainant, the only other eye witness remain was Suresh Kumar who was examined as PW2 during trial. No doubt, the said eye witness i.e. PW2 Suresh Kumar supported the case of prosecution to the extent of incident of robbery of cash amount of Rs. 15,85,850/ being committed against them by four boys but unfortunately, he has not identified either of present accused persons during trial, to be the robbers or the assailants who had abducted him and complainant Vishnu Patel. In the absence of any cogent piece of evidence available on record on the aspect of identity of accused to be the assailants, conviction cannot be recorded against them. In other words, there is no positive and definite evidence available before the Court, which may connect these accused persons with the offences punishable U/s 365/392/34 IPC. What has been established on record in view of testimony of PW2 Suresh Kumar is that incident of abduction of complainant Vishnu Patel and PW2 as also that of robbery of cash amount had been committed on the alleged date, time and place but for want of definite evidence that it were these accused who had committed State V/s Daulat @ Kalia etc. Page 17 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015 said abduction and robbery, they cannot be convicted for the offences of abduction and robbery. Consequently, Court is of the view that prosecution has failed to establish the charge for the offences punishable U/s 365/392/34 IPC against the accused persons.
27. As already discussed above, the only sole eye witness examined during trial i.e. PW2 failed to identify the accused persons during trial. Therefore, there is no piece of evidence whatsoever available on record which may conclusively prove or establish that any of the accused herein had used deadly weapon. That being so, Court is of the view that prosecution has also miserably failed to prove the guilt of accused persons namely Daulat @ Kalia, Hari Mohan and Amarjeet @ Monu for the offence punishable U/s 397 IPC.
28. Now, I shall deal with offence punishable U/s 411 IPC pressed against the accused persons as well as charge U/s 25/27 Arms Act framed against accused Daulat @ Kalia, Hari Mohan and Amarjeet @ Monu. Considering the fact that there is no evidence available on record showing that any of these accused had used any weapon on the alleged date, time and place, prosecution again failed to establish its case for offence punishable U/s 27 Arms Act.
29. As per the case of prosecution, part robbed amount of Rs. 2,80,000/ each were recovered from the possession of accused Amarjeet @ Monu, Daulat @ Kalia, Hari Mohan and Ravi. Part robbed amount of Rs. 75,000/ each were recovered from the possession of accused Ajay Bhalla and Lalit and another part robbed amount of Rs. 2,50,000/ was State V/s Daulat @ Kalia etc. Page 18 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015 recovered from the possession of accused Sandeep @ Rahul. It is also claimed that country made pistol and one live cartridge each were recovered from the possession of accused Daulat @ Kalia and Amarjeet @ Monu while one knife was recovered from accused Hari Mohan. For the said purpose, prosecution has examined three of the alleged recovery witnesses of the robbed amount i.e. PW1 Ct. Sunil Kumar, PW12 HC Chander Bhan and PW19 ASI Ved Pal (IO) so far as accused Amarjeet @ Monu, Daulat @ Kalia, Hari Mohan, Ravi, Ajay Bhalla and Lalit are concerned. Likewise, prosecution has also examined one of the alleged recovery witnesses i.e. PW20 SI Avdesh so far as accused Sandeep @ Rahul is concerned.
30. Ld. defence counsels vehemently argued that no independent public witness has been joined at the time of recovery of cash amount or aforesaid arms and ammunitions and in the absence of independent corroboration, recovery of cash amount from the possession of accused persons as also the recovery of aforesaid country made pistols, cartridges or knife from accused Daulat @ Kalia, Amarjeet @ Monu and Hari Mohan, becomes doubtful. Therefore, accused persons deserve to be accorded benefit of doubt.
31. So far as the offence U/s 25 Arms Act charged against accused Hari Mohan on the basis of recovery of knife (chura) Ex.P3 is concerned, it may be mentioned that the said knife does not fall within the definition of knife as provided in Notification dated 17.02.1979 or even in the subsequent Notification dated 29.10.1980 issued by Delhi Administration as both the said Notifications make possession of spring actuated knives, gararidar State V/s Daulat @ Kalia etc. Page 19 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015 knives, buttondar knives and other knives which open or close with any other mechanical device with a sharp edged blade of 7.62 cm or more in length and 1.72 cm or more in breadth, punishable offence under Arms Act. In the case in hand, the rough sketch Ex.PW1/C of the recovered knife from accused Hari Mohan,would reveal that it is shown to be a simple knife, which is neither spring or button actuated nor is gararidar or opening with any other mechanical device within the meaning of both the Notifications referred supra. That being so, Court is of the view that no offence U/s 25 Arms Act is made out or proved against accused Hari Mohan.
32. Nevertheless, the prosecution has been able to establish the charge for the offence punishable U/s 411 IPC against all the accused persons as also the charge for the offence punishable U/s 25 Arms Act against accused Daulat @ Kalia and Amarjeeet @ Monu. No doubt, no independent public witness is shown to have been joined at the time of recovery of different cash amount from the accused persons as discussed in the preceding paras. At the same time, it has been duly explained by all the recovery witnesses i.e. PW1, PW12and PW19 that public witnesses were requested to join the raiding party but none agreed and they all left the spot showing their inability without disclosing their names and addresses. It can be seen from their testimonies that best possible efforts were made by them to join independent public witnesses during recovery of cash amount and aforesaid weapons from the respective accused persons but due to non cooperative attitude of public persons, they could not be joined.
33. PW1 and PW19 have consistently deposed on similar lines to State V/s Daulat @ Kalia etc. Page 20 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015 the effect that on 04.09.2012, they alongwith other police officials namely Ct. Dharmender, Ct. Sanjay, Ct. Sunil Kumar and Ct. Narender had formed raiding party and conducted raid at House no. B110, Bhagya Vihar, Mangal Bazar Road, Mubark Pur, Delhi and had arrested accused persons namely Daulat @ Kalia, Amarjeet @ Monu, Ravi and Hari Mohan and recovered part robbed amount from their respective possession. All the said witnesses also deposed on identical lines with regard to recovery of country made pistol loaded with live cartridge from the wearing pant of accused Amarjeet @ Monu and another country made pistol loaded with live cartridge from the wearing pant of accused Daulat @ Kalia. They also deposed about the recovery of one knife (chura) from the possession of accused Hari Mohan. Not only this, said witnesses also corroborated each other with regard to relevant recovery proceedings carried out at the place of recovery of aforesaid arms and ammunitions. All the said three witnesses also successfully withstood the test of cross examination and nothing contradictory could be elicited from the side of accused persons, which may discredit their testimonies.
34. Likewise, PW20 SI Avdesh has also specifically deposed about recovery of part robbed amount of Rs. 2,50,000/ from dash board of Ascent Car bearing No. DL4CM3861 at the instance of accused Sandeep @ Rahul on 19.09.2012 in pursuance of disclosure statement Ex.PW20/A made by said accused in Kalandra U/s 41.1(d) Cr.P.C. Ex.PW20/B prepared at PS South Rohini. Said witness also remained consistent even during his cross examination and accused persons, more particularly accused Sandeep @ State V/s Daulat @ Kalia etc. Page 21 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015 Rahul, could not elicit anything contrary to the case of prosecution through litmus test of cross examination.
35. Law is not that testimonies of police officers are absolutely untrustworthy or that it can never be acted upon. Rather, the law is that even the testimony of a police officer can be acted upon and a conviction can be based on such testimony if the testimony is unimpeached and is found to be trustworthy.
36. In the matter titled as "State, Govt. of NCT of Delhi Vs. Sunil & Anr." reported at (2001) 1 SCC 652, Hon'ble Apex Court held as under: "xxxxx This Court examined a similar issue in a case where no person had agreed to affix his signature on the document. The Court observed that it is an archaic notion that actions of the police officer should be viewed with initial distrust. At any rate, the Court cannot begin with the presumption that police records are untrustworthy. As a proposition of law the presumption should be the other way around. The wise principle of presumption, which is also recognized by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through crossexamination of witnesses or through other materials, to show that the evidence of the police officer is unreliable. If the Court has any good reason to suspect the truthfulness of such records of the police the Court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action is unreliable to start with, nor State V/s Daulat @ Kalia etc. Page 22 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015 to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions xxxxx".
37. Ld. defence counsels had also argued that prosecution failed to prove that cash amount recovered from the accused persons, were part of the robbed amount involved in the incident. However, there is no merit in the said argument for several reasons. Firstly, the accused persons nowhere claimed cash amount shown to have been recovered from their respective possession, as belonging to them. They did not oppose release of said amount on superdari to superdar i.e. PW3 Sh. Dinesh Parihar. Secondly, the accused persons did not give any suggestion either during cross examination of PW3 or even during cross examination of recovery witnesses i.e. PW1, PW12, PW19 and PW20 that cash amount recovered from them, was not part of the robbed amount. Thirdly, there is a presumption as provided in Section 114 (a) of Indian Evidence Act that the person found in possession of stolen goods soon after theft, is either the thief or he had received the same knowing it to be stolen, unless he can account for his possession. In the case in hand, the incident of robbery took place on 23.08.2012. Police team conducted the raid on 04.09.2012 on the basis of secret information that the amount robbed on 23.08.2012 in this case, shall be distributed by the persons at H. No. B110, Bhagya Vihar, Mangal Bazar Road, Mubark Pur, Delhi and immediately, different cash amounts were recovered from the possession of accused persons except State V/s Daulat @ Kalia etc. Page 23 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015 accused Sandeep @ Rahul on 04.09.2012. Further, cash amount of Rs. 2,50,000/ was also recovered at the instance of accused Sandeep @ Rahul on 20.09.2012. None of the accused persons could account for the possession of such huge amount recovered from their respective possession. In other words, none of the accused persons was able to bring on record any material showing as to how and under what circumstances, the said amount came into their possession. Fourthly, besides recovery of various cash amount from different persons at the same place at the same time on same date i.e. 04.09.2012, prosecution has also been able to establish that one black colour bag(Ex.P4) was recovered at the instance of accused Daulat @ Kalia in pursuance of his disclosure statement (Ex.PW1/N1). The said bag has been correctly identified by both the relevant public witnesses i.e. PW2 Suresh Kumar and PW3 Dinesh Parihar. The testimonies of both the said witnesses remained unchallenged and unimpeached from the side of accused persons and they could not discredit their testimonies on the said aspect. The recovery of said bag which formed part of the robbed case property, from the possession of accused Daulat @ Kalia besides recovery of cash amount, again points out to the fact that cash amount recovered from the accused persons were forming part of the robbed amount involved in this case.
38. The accused persons more particularly accused namely Daulat @ Kalia and Amarjeet @ Monu themselves did not dispute contents of ballistic report dated 31.10.2012 (Ex.PX) as well as the factum of grant of sanctions U/s 39 Arms Act dated 28.02.2013 (Ex.PY and PY1) against State V/s Daulat @ Kalia etc. Page 24 of 25 FIR No. 333/12; U/s 365/392/397/411/34 IPC & 25/27/54/59 Arms Act ; P.S. Mangol Puri DOD: 29.04.2015 accused Daulat @ Kalia and Amarjeet @ Monu, vide their statement made during trial on 25.04.2015. The perusal of Ballistic report would clearly establish that country made pistol and cartridges recovered from said two accused are arms and ammunitions within the meaning of relevant provision of Arms Act. Thus, Court is of the view that prosecution has been successful in establishing the guilt of all the seven accused persons for the offence punishable U/s 411 IPC beyond shadow of doubt. Court is also of the view that the prosecution has also been successful in bringing home the guilt of accused persons namely Daulat @ Kalia and Amarjeet @ Monu for the offence punishable U/s 25 Arms Act beyond reasonable doubt.
39. In the light of aforesaid discussion, all the accused persons namely Daulat @ Kalia, Amarjeet @ Monu, Hari Mohan, Ravi, Lalit, Ajay Bhalla and Sandeep @ Rahul are hereby acquitted for the offences punishable U/s 365/392/34 IPC. Accused Daulat @ Kalia, Amarjeet @ Monu and Hari Mohan are also acquitted in respect of offence punishable U/s 397 IPC and 27 Arms Act. Accused Hari Mohan is also acquitted U/s 25 Arms Act. However, all the aforesaid seven accused persons stand convicted for the offence punishable U/s 411 IPC. Accused Daulat @ Kalia and Amarjeet @ Monu are also convicted for the offence punishable U/s 25 Arms Act.
Announced in open Court today
On 29.04.2015 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s Daulat @ Kalia etc. Page 25 of 25