Delhi District Court
Fir No. 180/2010 State vs . Rafiq @ Babboo & Ors Ps Nangloi Page No. 1 ... on 18 April, 2023
IN THE COURT OF SH. MANISH KHURANA:
ADDITIONAL SESSIONS JUDGE: 04, WEST DISTRICT:
TIS HAZARI COURTS : DELHI
CNR No.DLWT01-000140-2010
SC No. 57376/2016
FIR No. 180/2010
PS : Nangloi
State
Vs.
1. Rafiq @ Babboo
S/o Abdul Haq
R/o Jhuggi No. 150, B-Block
Shahbad Dairy, Delhi
2. Rajinder @ Pappe (Proceedings qua him already
abated on 15.09.2021)
S/o Hazoora Singh
R/o H.No. 86, Phase-4
Sector-26, Rohini, Delhi
3. Rajesh (Proceedings qua him already abated on
10.08.2018)
S/o Sh. Raj Singh
R/o Udai Vihar Colony,
Kanjhawla, Delhi
Also At: Village Holambi Khurd, Delhi
4. Jagbir @ Jaggu
S/o Sh. Udai Ram
R/o 5/61, Friends Enclave Colony,
FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 1 of 77
Near G Block, Sultan Puri, Delhi
5. Bajrangi
S/o Sh. Bhola Nath Yadav
R/o A-16, Rajiv Nagar Extension
Begumpur, Delhi
6. Rajji Ahmed
S/o Badloo Ahmed
R/o Jhuggi No. 143, B Block
Shahbad Dairy, Delhi
7. Mohd. Khalid
S/o Siddiqui Khan
R/o Jhuggi No. 1061, B Block
Shahbad Dairy, Delhi.
Date of Institution of case : 22.09.2010
Date of decision : 18.04.2023
Final order : Accused persons namely
Rafiq @ Babboo,
Jagbir @ Jaggu, Rajji
Ahmed and Mohd.
Khalid are convicted for
offence punishable u/s
365/34 IPC and for the
offence punishable u/s
395 IPC whereas accused
Bajrangi is acquitted for
offences charged against
him.
JUDGMENT
1. Brief facts of the case are that on 22.05.2010 DD No. 7B FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 2 of 77 was marked to ASI Ishwar Singh who accordingly went to Sanjay Gandhi hospital, Mangolpuri. Upon reaching in the said hospital, he found Krishan Kumar Gupta and Thambu had already left the hospital after taking necessary treatment. On the same day, during the evening hours, complainant Sh. Krishan Kumar and driver Thambu came to PS and in the said PS ASI Ishwar recorded the statement of Sh. Krishan Kumar Gupta. On the basis of said statement and contents of MLCs, SI Ishwar prepared rukka and got FIR No. 180/2010 registered at PS Nangloi for offences u/s 392/120B/34 IPC. During investigation, ASI Ishwar had accompanied the aforesaid victims to the place of occurrence and prepared rough site plan and made efforts for the serach of offenders but in vain. On 25.05.2010, complainant Sh. Krishan Kumar Gupta informed IO that the robbed truck has been lying abandoned at village Bamdoli, Distt. Jhajjar, Haryana, accordingly, IO went to the said place and seized the said truck which was found empty. During investigation, on 01.06.2010 DD No. 30A was marked to IO being lodged from PS Vasant Kunj and accordingly IO had formally arrested the accused persons in the present case and moved an application for judicial TIP of accused persons except that of accused Bajrangi Yadav and IO had also collected the copy of TIP proceedings. IO had also got transferred the case property and seized it and the case property was released on superdari. During the investigation IO added offences u/s 365/395/397/412 IPC. IO had also obtained one day PC of all the accused persons and made efforts for the search of remaining case property but in vain. IO recorded the statement of witnesses and upon completion of FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 3 of 77 investigation, filed charge-sheet.
2. The charge-sheet was filed before concerned Ld. M.M. on 17.08.2010. The Ld. M.M. took cognizance of the offence and after making compliance of provisions of Section 207 Cr.P.C. the Ld. M.M. ordered the matter to be put up before concerned Ld. District & Sessions Judge, West, Delhi for and on 22.09.2010 the present case was assigned to the Sessions Court for trial.
3. On 13.12.2010, order on charge was passed by the then Ld. ASJ, West, THC, Delhi and the charge for the offences punishable u/s 365/395/397/412/120B/34 IPC was framed against all the accused persons. Apart from that, charge for offence punishable u/s 171 IPC was also framed against accused Rafiq and Rajinder (since deceased). The charge was read over and explained to the accused persons in vernacular and they were asked as to whether they wanted to plead guilty or claim trial. After understanding the charges, accused persons pleaded not guilty and claimed trial.
4. Thereafter, the prosecution has examined twenty seven witnesses in total i.e. PW1 Sh. Sachin Bansal, PW2 Sh. Sushil Bansal, PW3 Sh. Sunny Bansal, PW4 Sh. Sandeep Garg, PW5 Sh. Vipin Mittal, PW6 Sh. Ajay Kumar, PW7 Ct. Mukesh, PW8 Sh. Krishan Kumar Gupta, PW9 ASI Ishwar Singh, PW10 Ct. Narender, PW11 HC Sanjay Kumar, PW12 Sh. Karan, PW13 Sh. Ashish Aggarwal, PW14 HC Suresh Kumar, PW15 ASI Umed Singh, PW16 HC Surender Singh, PW17 Sh. Vikas, PW18 Ct. Rajesh Kumar, PW18 HC Pardeep (wrongly mentioned), PW19 Sh. Ashwani Chauhan, PW19 HC Devender Kumar, PW20 Ct. Suresh Chand, PW21 ASI FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 4 of 77 Harjeet, PW22 Sh. Kamal Kaushal, PW23 Dr. Shanker Gupta, PW24 SI Ashwani Kumar, PW25 Inspector Ramphal Singh, PW26 Ct. Dilawar Singh and PW27 HC Inder.
5. On 01.02.2018 prosecution evidence was closed. On 21.02.2018, statement of all accused persons were recorded u/s 313 Cr.P.C. In his statement u/s 313 Cr.P.C, accused persons submitted that they are innocent and have been falsely implicated in the present case. They further stated that they were lifted from their houses and were made to sit in PS Vasant Kunj and were implicated in this false case alongwith other co-accused persons by planting such material and Maruti van on them. Accused Rafiq @ Babboo opted to lead evidence in his defence.
6. On 27.03.2018, accused examined DW-1 Sh. Dev Singh in his defence and thereafter, DE was closed on the same date and matter was fixed for final arguments.
7. The brief of the testimonies of the prosecution witnesses examined during trial are as under:-
8. PW1 Sh. Sachin Bansal deposed that he was Director of Suzu Steel India situated at 106, IDC, Hissar Road, Rohtak and his father was partner and they manufacture hinges, handle, door fittings. On 21.05.2010 he sent hardware items to Aryavrat Transport Company containing hinges, handle, L Drop etc. in Truck No. HR-47A/4101 and later on came to know that the said truck had been looted in the area of Nangloi. He further deposed that on 12.07.2010, he was called at PS Nangloi where he identified his hardware items and out of those, 50% to 60% items were released on Superdari vide superdarinama Ex.PW1/A. PW1 identified the certified true FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 5 of 77 copy of bill invoice and builty numbers as Ex.PB colly and photographs which are Ex.PA.
9. During cross-examination by Ld. Counsel for accused, PW1 stated that his statement was recorded on 12.07.2010 at PS Nangloi when he had taken the items on superdari. He also stated that he had mentioned the bills no. and builty numbers in his statements recorded u/s 161 Cr.P.C.
10. PW2 Sh. Sushil Bansal has deposed that he was partner in Suzu Steel India and they manufacture hinges, handle, door fittings. On 21.05.2010 he sent hardware items to Aryavrat Transport Company containing hinges, handle, L Drop etc. in Truck No. HR-47A-4101 and later on came to know that the said truck had been looted in the area of Nangloi. He further deposed that on 12.07.2010, he was called at PS Nangloi where he identified his hardware items and out of those articles, 50% to 60% items were released on Superdari vide superdarinama Ex.PW2/A. PW2 identified the hardware items in photographs Ex.PA. PW2 also brought the original bills no. 2901 dated 21.05.2010 and invoice no. 700 dated 21.05.2010 for an amount of Rs.14,281/- and Rs.3,65,046/- which are Ex.PW2/B and Ex.PW2/C. He had also brought builty of transport of goods bearing registration no. 90608 and 90609 dated 21.05.2010, copies of which is Ex.PW2/D (colly).
11. During cross-examination on behalf of accused persons, PW2 stated that the builty no. 2901 does not find mention the name of driver or the registration number of truck in which goods were loaded or the name of transport company through which goods were consigned.
12. PW3 Sh. Sunny Bansal deposed that he was proprietor of FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 6 of 77 R.B Industries situated at 13, IDC, Hissar Road, Rohtak. On 21.05.2010, he sent hardware items to Aryavrat Transport Company containing hinges, handle, L Drop etc. in Truck No. HR-47A-4101 and later on came to know that the said truck had been looted in the area of Nangloi. He further deposed that on 12.07.2010, he was called at PS Nangloi where he identified his hardware items which were released to him on Superdari vide superdarinama Ex.PW3/A. PW3 identified the certified true copy of bill invoice and photocopy of builty payment slips. He had also seen photographs Ex.PB bearing serial no. 333, 340 & 352, on the basis of which he identified the hardware items. He also produced certified true copy of Bill invoice no. 036, 034, 035 dated 21.05.2010 and builty no. 90637, 90638 & 90639 dated 21.05.2010, copies of which are Ex.PC (Colly).
13. During cross-examination on behalf of accused persons, PW3 stated that his statement was recorded on 12.07.2010 at PS Nangloi when he had taken the items on superdari. He also stated that he had mentioned the bill no. and builty numbers in his statements recorded u/s 161 Cr.P.C. He also stated that he had given the copy of invoice and builty to the transporter and not to the police officials.
14. PW4 Sh. Sandeep Garg has deposed that he is partner of a company by the name of Omni Steel India situated at Ghanipura, Jhajjar Road, Rohtak and on 21.05.2010 he sent hardware items i.e Screws to Aryavrat Transport Company in Truck No. HR-47A-4101 for sending the same to Ahamdabad and later on came to know that the said truck had been looted in the area of Nangloi. He further deposed that on 12.07.2010, FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 7 of 77 he was called at PS Nangloi where he identified his hardware items and the same were released on Superdari vide superdarinama Ex.PW4/A. PW4 identified the hardware items in photographs Ex.PC (colly). PW4 also brought the original builty papers i.e. invoice no. 2060 dated 21.05.2010 for an amount of Rs.97,147/- Ex.PW4/A and builty no. 90623 dated 21.05.2010 Ex.PW4/B.
15. During cross-examination on behalf of accused persons, PW4 stated that the builty no. 90623 dated 21.05.2010 as well as cash memo no. 2060 dated 21.05.2010 did not find mention the name of driver or the registration number of truck in which goods were loaded or the name of transport company through which goods were consigned.
16. PW5 Sh. Vipin Mittal deposed that he has been running a company by the name of Indian Steels situated at 623, IDC, Hissar Road, Rohtak and he is proprietor in the said company. He further deposed that on 21.05.2010, he sent hardware items to Aryavrat Transport Company containing hinges, handle, L Drop etc. in Truck No. HR-47A-4101 and later on came to know that the said truck had been looted in the area of Nangloi. He further deposed that on 12.07.2010, he was called at PS Nangloi where he identified his hardware items which were released to him on Superdari vide superdarinama Ex.PW5/A. PW3 identified the certified true copy of bill invoice no. 86 dated 21.05.2010, photocopy of builty payment slip no. 90617. He had also seen photographs bearing serial no. 327, 329, 337, 341, 345, 347 & 349 Ex.PD (colly), on the basis of which he identified the hardware items. He also produced certified true copy of Bill invoice and builty numbers Ex.PE FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 8 of 77 (Colly).
17. During cross-examination on behalf of accused persons, PW5 stated that his statement was recorded on 12.07.2010 at PS Nangloi when he had taken the items on superdari. He also stated that he was informed by the transporter to reach at PS Nangloi. He also stated that he had mentioned the bill no. and builty numbers in his statements recorded u/s 161 Cr.P.C. He also stated that he had given the copy of invoice and builty to the transporter and not to the police officials.
18. PW6 Sh. Ajay Kumar deposed that he was working as booking clerk in Arya Varat Transport company. On 21.05.2010 Suzu Steel India Pvt. Ltd. India Steel, Omini Steel India, RAS Associates, RB Industries and B.K Plastic etc. booked their items for sending to Delhi and let on to other States and the articles were sent in Truck no. HR-47A-4101. He also exhibited the builty book Ex.PW6/A (colly).
19. During cross-examination on behalf of accused persons, PW6 stated that none of the builty bears signatures of any authorized representative or proprietor of their company. PW6 also stated that on the carbon copy and on the front page of the builty book, name of the company is not written. He further stated that the name and signatures of the driver is not mentioned on the carbon copy.
20. PW7 Ct. Mukesh deposed that on the intervening nigh of 21-22.05.2010, he was posted at PS Nangloi and was on duty from 8 PM to 8 AM. At about 12-12.30 midnight, on receipt of DD No. 7B by ASI Ishwar Singh, he alongwith ASI Ishwar Singh went to the place of occurrence i.e. Metro Station Mundka and came to know that person had gone to Sanjay FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 9 of 77 Gandhi hospital. Thereafter, he alongwith IO went to Sanjay Gandhi Hospital where injured did not meet them. Thereafter, they again went to the place of occurrence. He further deposed that he had prepared site plan. He also deposed that he did not join any other proceedings with IO.
21. During cross-examination on behalf of State, he stated that IO received DD No. 7B at about 1.30 AM at night. He further stated that he alongwith IO went to Rohtak Road near Railway Station in front of metro station. He further stated that when they did not find injured Sh. Krishan Kumar Gupta and Thumbu Ram, they came back to PS. He further stated that at about 6.30 PM, Sh. Krishan Kumar Gupta and Thumbu Ram came to PS and IO recorded statement of Sh. Krishan Gupta and then the present case was registered. He further stated that he alongwith IO and complainant Krishan Kumar Gupta went to the place of occurrence and IO prepared site plan at his instance. He further stated that they searched for the accused and the case property, but nothing could be ascertained.
22. During cross-examination on behalf of accused persons, PW7 stated that he was present at the police station when information regarding DD No. 7B was received at PS and given to ASI Ishwar Singh. They immediately started from PS after receipt of DD No. 7B and reached at the spot within 5-10 minutes. He further stated that they hardly remained at the spot for about 10 minutes and that the IO did not prepare any document at that time. He further stated that they reached at hospital at about 1.30 AM and left the hospital at about 2.00 AM and came back to PS. He further stated that from the PS, they again went to the place of occurrence but he does not FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 10 of 77 remember the time.
23. PW8 Sh. Krishan Kumar Gupta deposed that the office of Aryavrat Transport company is situated at Mall Godown Road, Rohtak. He got loaded the items in truck no. HR47A 4101 from IDC, Hissar Road Rohtak and he alongwith driver Thambu Ram started at about 9 PM on 22.05.2010 from Rohtak for Delhi in the aforesaid loaded truck. He further deposed that at about 11.30-12.00 midnight when they crossed Mundka and reached Nangloi, one white Maruti van overtook their truck and driver of the said maruti van who was wearing police uniform, gave signal to stop the truck and he thought that the persons were from Sales Tax. He further deposed that on his instructions, driver stopped the truck and the driver of maruti van who was wearing police uniform came towards driver side and asked for the documents of the vehicle. The moment the truck driver was taking out the documents after standing from his seat, the person who was asking for the documents, boarded the truck and sat on the driver seat of the truck and on production of documents by driver Thambu Ram, he started checking the documents. PW8 further deposed that the other person who was sitting on the side of driver of Maruti Van, wearing police uniform came there and opened the gate of his side and asked him to show the articles loaded in the truck and also asked to show the documents. PW8 had shown the documents of articles i.e. hardware items loaded in the truck. That person boarded the truck from window side. PW8 further deposed that when both the said persons were checking the documents, 2/3 other persons also boarded the truck and stated to give beatings if documents were not shown.
FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 11 of 77 PW8 further stated that after boarding the truck, they gave beatings to him and driver Thambu Ram. PW8 further deposed that they both were asked to lay upside down at the rear seat, otherwise they would kill them. PW8 also deposed that one person kept revolver on his temple and other person kept knife on the person of driver Thambu Ram and took their mobile and cash. He further deposed that the person who sat on driver seat started the truck and drove the same. PW8 further deposed that after going at a distance of 1 km, they took U-turn and proceeded towards Bahadurgarh. The accused persons tied their hands, legs and mouth and got both of them down from the truck at some isolated place, where 2/3 other persons were there who also gave beatings to them. PW8 further deposed that those 2/3 other persons kept vigil over them and then drove their loaded truck to some unknown destination. He stated that after some time, those 2/3 persons had conversation with someone for 2-3 times and after some time, the same maruti van came there and those 2/3 person boarded in maruti van and went away from there.
24. PW8 further deposed that he got himself freed with the help of teeth by opening the knot of clothes and then opened the clothes tied around his legs. He tried to lift driver Thambu Ram but he was unconscious. PW8 further deposed that he came on the road side and gave signal to the vehicles plying on the road but none stopped the vehicle. He stated that he stood in between the road and got stopped one vehicle and luckily that was police vehicle and he stated all the facts and took them to the place where Thambu Ram was lying. Thereafter, Thambu Ram was got untied and police officials took them to FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 12 of 77 Sanjay Gandhi hospital where they were medically examined. Those police officials gave information on their channel and Jia Prakash, owner of the company was also called by the police officials who reached there. PW8 further deposed that his statement Ex.PW8/A was recorded by police officials.
25. PW8 further deposed that he alongwith police officials went to place of occurrence and police prepared site plan at their instance. PW8 further deposed that he had seen accused persons at PS after many days from the date of occurrence. PW8 also identified the accused persons who were present before the Court. PW8 also identified the case property being produced by MHC(M) i.e. 20 pieces of stainless steel Sankal (L-Drop) on which Royal Stainless Steel was written Ex.P-A (colly), 20 pieces of stainless steel kabza (door fitting) on which Royal Stainless Steel was written Ex.P-B (colly), one Khaki Shirt with D.P Badge on both flaps of shoulders and cloth monogram of D.P on sleeve and one khakhi pant Ex.P-C and one Khaki Shirt with D.P Badge on both flaps of shoulders and cloth monogram of D.P on sleeve and one khakhi pant Ex.P-D.
26. During cross-examination on behalf of accused Bajrangi, PW8 stated that accused Bajrangi was not produced before him in the PS. He also admitted that he did not know as to whether accused Bajrangi was present in the court or not. PW8 further stated that police did not recover the robbed articles from accused persons in his presence.
27. During cross-examination on behalf of other accused persons, PW8 stated that he has been working in Aryavrat Transport company for the last 13-14 years and he has not FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 13 of 77 been issued any I-Card by the company regarding his employment. He further stated that no record is maintained by the company regarding transportation of goods in a vehicle. He volunteered that same has been mentioned in a builty. He further deposed that he had not handed over the builty of transportation of goods to the police. He further deposed that they left the premises of the company with the loaded truck at around 5-6 PM on the day of incident and the owner of the transport company was not present at that time. He further deposed that he could not tell as to of which factory, goods were loaded first and he could not tell that at first time what goods were loaded from IDC at Hissar Road. He further deposed that all the goods were loaded in the vehicle from IDC Hissar Road. The loaded goods were including door fittings, plastic dana but he did not recollect other items loaded in the vehicle and he stated that the goods were relating to hardware items and not parchoon. He further deposed that the first barricade of the police came at Tikri Border near toll tax and they paid the toll tax of the goods but he had not handed over the said receipt to the police. He further deposed that there were 200-250 cartons loaded in the vehicle besides 80 bags of plastic dana. He further deposed that he had mentioned in his statement to the police that they crossed Mundka at around 11.30-12.00 midnight. He was confronted with statement Ex.PW8/A where the said timings has not been mentioned. He further deposed that no other naka and toll tax came in their way to Delhi from Hissar except mentioned above. He further deposed that Nangloi police station was situated at a distance of 15 minutes walking distance. He did not notice any police FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 14 of 77 gypsy near metro station Nangloi. He volunteered that the incident occurred much prior to Nangloi Metro Station. He further deposed that perhaps the registration of Maruti Van was 4637 of white colour which was mentioned by him in his statement. He further admitted that vehicles were passing on the road at the time of incident and the Maruti Van in question had come from the side of Tikri Border. He further deposed that the driver of the truck noticed the maruti van first time from distance of 10-15 paces. He further deposed that he did not know where accused persons took their vehicle after robbing the same from them. He further deposed that he was tied from the hands as well as from the feet with cloth piece and his eyes were also tied with the clothes and thus he could not see the colour of the clothes. He further deposed that firstly he untied the clothes from his eyes and thereafter from hands and legs and the driver was unconscious at that time and it took about half an hour in untying himself. He further deposed that he noticed one farm house at the place where he untied himself and he was told by someone that the area was Madanpur Dabas in Delhi. He further deposed that he also untied Mr. Thambu driver of the vehicle before coming to the main road and he did not know whether police seized the cloth pieces which were used by the accused persons in tying them. He further deposed that police came there within half an hour and he met the police on the road in front of Madanpur Dabas farm house. He further deposed that police took him to the hospital from the police where he got stopped police vehicle and he did not remember whether his MLC was prepared in the hospital. He further deposed that he was not admitted in FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 15 of 77 the hospital but remained in the hospital till morning. He further deposed that he did not know whether Mr. Thambu was admitted in the hospital or not, he stated that perhaps Mr. Thambu was with him when he reached PS Nangloi in the morning. He further deposed that police official, his employer accompanied him from Sanjay Gandhi Hospital and police had prepared some documents in the hospital after making some inquiries and he signed some documents in the hospital. He stated that it took about 2-2 ½ hours in the PS in doing writing work by the police and police recorded his statement in the PS after making inquiries from him. He further stated that he did not know whether police recorded the statement of Mr. Thambu in the PS. He further stated that police took him to the place of incident as well as to the place where they were thrown after the incident. He further denied the suggestion that no such incident ever took place or that a false complaint was lodged by him before the police.
28. This witness was re-examined by Ld. Addl. PP for the state after seeking permission from the court. During re- examination, the witness after seeing accused Bajrangi deposed that he did not recollect as to whether accused Bajrangi was present at the time of incident or not. He denied the suggestion that he was not identifying accused Bajrangi being won over by him or being pressurized by him.
29. PW9 ASI Ishwar Singh deposed that on 22.05.2010 he was posted at PS Nangloi and on that day, on receipt of DD No.7B Ex.PW9/A, he alongwith Ct. Mukesh went at Sanjay Gandhi Hospital where he came to know that patient Thambu and Krishan Kumar had already left the hospital after getting FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 16 of 77 treatment. He collected the MLC of both the injured and came back to PS. PW9 further deposed that at about 6.30 PM, complainant Krishan Kumar alongwith driver Thambu came at PS. PW9 recorded the statement Ex.PW8/A of complainant Krishan Kumar Gupta and made his endorsement on the same vide Ex.PW9/A and also produced original Tehrir before the duty officer for getting the case registered. He further deposed that after getting the case registered, investigation was given to him and he alongwith Ct. Mukesh, complainant Krishan Kumar and Thambu went to the place of occurrence i.e. main Rohtak Road near Metro station Nangloi and after inspecting the site, prepared site plan Ex.PW9/B. He further deposed that he searched for the accused persons but could not be traced. Thereafter, further investigation was assigned to Inspector Ramphal.
30. PW9 was not cross examined by accused persons despite opportunity.
31. PW10 Ct. Narender deposed that on 22.05.2010, he was on duty from 1.00 AM till 9.00 AM as DD writer. He further deposed that on receipt of information through telephone, he recorded the same in DD register at serial no. 7B vide Ex.PW9/A.
32. PW10 was not cross examined by accused persons despite opportunity.
33. PW11 HC Sanjay Kumar deposed that on 30.05.2010, he was working as Duty officer from 4.00 PM to 12.00 midnight. He further deposed that Ct. Pradeep produced rukka before him for registration of FIR, on the basis of which, he got registered FIR No. 145/2010 u/s 411/171/34 IPC & 25 Arms FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 17 of 77 Act Ex.PW11/A and investigation of the case was marked to ASI Ashwani Kumar.
34. PW11 was not cross examined by accused persons despite opportunity.
35. PW-12 Mr. Karan deposed that on 21.05.2010 they loaded their goods relating to hardware items i.e. door fitting etc. through Aryavrat Transports Pvt. Ltd. in Truck No. HR 47A- 4101 and later on they came to know that the goods had been robbed in the area of Nangloi. He further deposed that he had got some articles recovered by the police. He also produced the case property in the court which he had taken on superdari and exhibited the case properties as Ex.PW12/P1 (colly). He also exhibited the photographs of case properties as Ex.PW18/P5A1, Ex.PW18/P5A2 & Ex.PW18/P5A10.
36. During cross-examination, PW12 stated that when the articles released to him on superdari from PS, the same were in loose condition. He further deposed that he had kept the articles in same condition, however, he had changed the cartons from time to time as and when they were required to be changed due to normal wear and tear. He further stated that the hinges were of Royaltek whereas sofa leg, door latch, gate hook and door stopper were of Suzu and Magnet catcher was of Magmx. He further deposed that he did not remember if any inventory of articles released to him on superdari was prepared by the IO/SHO/MHC(M) giving details of case properties. He further stated that he did not give details of the property to the IO when his statement was recorded.
37. PW-13 Mr. Ashish Aggarwal, Commercial Civil Judge deposed that on 09.06.2010, he was posted as Metropolitan FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 18 of 77 Magistrate, Delhi and on that day, an application moved by Inspector Ram Phal Singh was marked to him being first Link MM, as per the directions of Ld. CMM, Delhi. PW13 further deposed that accused Rajesh, Mohd. Khalid Khan, Jagbir @ Jaggu, Rafiq @ Babboo, Rajji Ahmed @ Rajji and Rajender @ Pappe were produced from JC and were identified by the IO but all of them refused to participate in TIP proceedings. PW13 also exhibited the proceedings in respect of accused Rajesh, Mohd. Khalid Khan, Jagbir @ Jaggu, Rafiq @ Babboo, Rajji Ahmed @ Rajji and Rajender @ Pappe as Ex.PW13/A to Ex.PW13/F. He also exhibited the application of IO Inspector Ramphal Singh for conducting TIP of accused persons as Ex.PW13/G and the application for supply of copy of TIP proceedings as Ex.PW13/H.
38. PW13 was not cross examined by accused persons despite opportunity.
39. PW-14 HC Suresh Kumar deposed that on 22.05.2010 he was working as Duty officer from 5.00 PM to 1.00 AM in PS Nangloi. On that day, on receipt of rukka brought by ASI Ishwar Singh at 7.50 PM, he recorded the FIR No. 180/2010 and also exhibited the copy of same as Ex.PW14/A. He further deposed that after lodging the FIR, he handed over the original rukka and copy of FIR to Ct. Dilawar Singh for supplying the same to ASI Ishwar Singh for investigation.
40. PW-15 ASI Umed Singh deposed that on 11.06.2010 he went to PS Vasant Kunj alongwith Inspector Ram Phal to bring the case property of present case from malkhana of said police station and brought one Maruti Van bearing registration no. DL-4CF-6899, two pullandas containing police uniform, four FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 19 of 77 plastic bags containing some case property, 40 gunny bags and 65 other gunny bags containing some articles sealed with the seal of 'JP' and 'AKA' respectively and deposited the same in the malkhana of PS Nangloi.
41. During cross-examination on behalf of accused persons except accused Bajrangi, PW15 deposed that he did not know whether Inspector made any departure entry at rojnamcha at PS Nangloi as well as at PS Vasant Kunj. He further deposed that he did not know about the contents of gunny bags.
42. PW-16 HC Surender Singh has deposed that on 30.05.2010 he was working as HC in PS Vasant Kunj. On that day, he alongwith HC Subhash, HC Ajit Singh, HC Bani Singh, HC Harjit Singh, Ct. Pradeep were on patrolling in the area of Mahipalpur. He further deposed that at about 2.00 PM, a secret informer met him and told that 5-6 boys are coming from the side of Mahipalpur leading towards Mehrauli in a Maruti Van bearing no. DL-2CF-6899 and carrying stolen goods and also possessing illegal arms. The police team put barricade in front of CNG patrol pump on the road leading towards Mehrauli. He further deposed that at around 2.20pm, they noticed the aforesaid Maruti Van and at the instance of informer, the same was got stopped and occupants of vehicle were checked. PW16 further deposed that he apprehended accused Rajender and other accused persons were nabbed by other police officials. The vehicle was checked in which two plastic bags were found containing latches (kabje and shankal). Two polythene bags were found containing police uniforms. He further deposed that during search of accused Rajender, a loaded country made pistol was recovered and one buttondar FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 20 of 77 knife was found in possession of Rafiq. Thereafter, he prepared rukka.
43. He further deposed that there were six persons in the Maruti Van from where the case property of this case was recovered. PW16 seized the Maruti Van bearing registration no.DL4CF 6899 vide seizure memo Ex.PW-16/A. He had also prepared the sketch of the knife which were recovered from the possession of Rafiq vide memo Ex.PW-16/B and sketch of the country made pistol and cartridge which were recovered from the possession of accused Rajinder vide memo Ex.PW- 16/C. He further deposed that he had also seized the knife vide memo Ex.PW-16/D and katta and cartridge vide memo Ex.PW-16/E and kept them in separate cloth parcel and sealed the same with the seal of JP. He had also seized the saankal and kabza which were recovered from the said Maruti van vide memo Ex.PW-21/A. He also sealed both the kattas with the seal of JP containing the case property of this case. Each katta containing 20 pieces each i.e. 20 saankal in one katta and 20 kabza in another katta. He further deposed that he had also seized the two police uniform which were also recovered from the said Maruti Van vide memo Ex.PW-16/F and kept the same in cloth parcel and sealed with the seal of JP. Thereafter he prepared rukka and sent the same to PS Vasant Kunj (South) through Ct.Pradeep for getting the FIR registered. He further deposed that after registration of FIR, ASI Ashwani came at the spot and he conducted the investigation relating to the recovery of weapons and other above said articles. PW16 handed over all the six persons, all case property and all documents to ASI Ashwani.
FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 21 of 77
44. On production of case property by MHC(M), PW16 identified one police uniform i.e. pants and shirt having label of DP Ex.P-C. He also identified one khaki shirt with DP Badge on both the flaps of the shoulder and the cloth monogram of DP on the sleeve and one khaki pants Ex.P-D. He further identified 20 pieces of stainless steel sankal (L- drop) on which Royal stainless steel is written, Ex.P-A (colly). PW16 also identified 20 pieces of stainless steel Kabze (door fitting) on which Royal Stainless Steel is written Ex.P-B (colly). PW16 identified the Maruti Van in photographs Ex.PW16/P1 to Ex.PW16/P3.
45. During cross-examination, PW16 stated that the Maruti Van reached at the place where they were standing after about 20 minutes of receiving the secret information. After they gave signal to stop the said Maruti Van, it was stopped just near them. He further stated that thereafter, all the six occupants came out from the Maruti Van and were formally searched them. He stated that the polythene bag in which the police uniform was found was transparent and the other plastic kattas were of white colour and something was printed on those kattas but he did not remember what was printed on those two kattas. He further stated that the said Maruti Van was in working order and was not damaged at that time. He further stated that he could not tell as to who had taken that Maruti Van to the PS from the spot. He stated that they remained at the spot for about 3 hours and he further stated that he handed over the case property as well as the accused persons to ASI Ashwani of PS Vasant Kunj. He further stated that on all the seizure memos of case property as well as arm and FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 22 of 77 ammunition, he obtained signatures of all the accused persons. He further stated that 'Royal Stainless Steel' was engraved on kabjas and sankals recovered from plastic bags. He further stated that both the number plates of Maruti Van were written in the same font. He further stated that he cannot tell as to who had taken the photographs Ex.PW16/P1 to Ex.PW16/P3 and on which date the same were taken. He further stated to be correct that in photograph Ex.PW16/P1, front wind screen of Maruti Van is looking broken. He further stated to be correct that the fonts of number plates of Maruti Van shown in photographs Ex.PW16/P1 and Ex.PW16/P2 are different. He denied the suggestion that he had wrongly identified the Maruti Van in photograph Ex.PW16/P1 to Ex.PW16/P3 as the same Maruti Van which was seized by him on 30.05.2010. He further denied the suggestion that neither he received any such secret information nor accused persons were arrested in the manner narrated by him. He further denied the suggestion that no arm and ammunition were recovered from accused Rajender and Rafiq. He further denied the suggestion that no such kabjas and sankals and police uniform were recovered from any such Maruti Van.
46. PW-17 Sh. Vikas deposed that he was the registered owner of Truck bearing registration no. HR-17A-4101, which was released to him on superdari in pursuant to the order dated 02.06.2010 passed by the court. He further deposed that the said truck is not in a working condition and had exhibited the photographs of truck as Ex.PW17/P1 & Ex.PW17/P2 and also exhibited the photographs already placed on record as Ex.PW17/P3 to P5. He also got exhibited the RC of said truck FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 23 of 77 as Ex.PW17/B. On 18.09.2017 this witness was again examined and on that day, he brought photographs of truck and exhibited the same as Ex.PW25/X1 to Ex.PW25/X7.
47. During cross-examination, PW17 stated that he had purchased the truck in the year 2002 and the truck is parked in a garage as shown in the photographs for the last about four years. He denied the suggestion that the truck has already been sold and due to this reason, he was not producing the truck in the court.
48. PW18 Ct. Rajesh Kumar deposed that on 25.05.2010 he was posted at PS Nangloi and on that day, he alongwith IO Inspector Ramphal Singh reached at main road, Village Bamnoli, near Bahadurgarh, District Jhajjar, Haryana and found truck bearing registration no. HR-47A-4101 stationed in front of house of one Ranjit Singh. He further deposed that IO had seized the said truck vide seizure memo Ex.PW18/A and brought the same at Tikri Border chowki. The said truck was inspected by Crime Branch and its photographs were also taken. PW18 also identified the truck in photographs Ex.PW17/P1 to P5.
49. During his cross examination on behalf of all accused persons except accused Bajrang Yadav, PW18 denied that no such truck was seized in his presence or that he was deposing falsely. This witness was not cross examined by accused Bajrang Yadav despite opportunity.
50. PW-18 HC Pardeep (inadvertently numbered as PW18) deposed that on 23.05.2010 he was posted as constable at PS Vasant Kunj, South. On that day he alongwith H.C. Surinder, HC Subhash, HC Bane Singh and HC Harjeet were on FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 24 of 77 patrolling duty and were present near Mahipal Pur Chowk. HC Surinder received secret information that 5-6 criminals were moving in a Maruti van bearing No. DL-4CF-6899 who used to rob the public persons and the vehicles. On this information, they started checking the vehicles and put barricades at in front of CNG Pump, Mahipal Pur Mehrauli Road. He further deposed that at about 2.20 PM, one maruti van of white color bearing the abovesaid number came there from the side of Mahipal Pur and going towards the Mehrauli Side and at the instance of secret informer, they got stopped the said maruti van and found that there were six persons sitting inside the van including driver. He further deposed that they apprehended all the six persons and interrogated them and their names were revealed as Rajesh, Rajender, Rafiq, Rajji Ahmed, Jagbir and one more accused namely Mohd. Khalid. Rajesh was driving the said maruti van. On taking their formal search, accused Rajender was found in possession of one desi katta loaded with one cartridge and accused Rafiq was found in possession of one buttondar knife. On checking the said maruti van, two police dress and two kattas containing the bolt latch (saankal kundi) were found. HC Surinder conducted the proceedings and seized the said articles through seizure memos and also sealed in a separate cloth parcels. He further deposed that HC Surinder prepared rukka and he got lodged the FIR from PS Vasant Kunj vide FIR No. 145/2010, u/s 411/171/34 IPC and 25 Arms Act. Thereafter investigation of the case was marked to SI Ashwani and he conducted further proceedings and arrested all the abovesaid accused persons and conducted their personal search and also made their FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 25 of 77 disclosure statements and also confessed their involvement in the present case of dacoity and disclosed that they could get recover the looted articles from village Mungeshpur, Delhi. All the abovesaid accused persons led them to Mungeshpur, Delhi and pointed out the godown of one Master which was located at Qutub Garh Road, near Mungeshpur Village and from where, they got recovered 65 kattas of hardware articles and 40 cartoons of All Door Fittings. The same were seized by the IO vide seizure memo Ex.PW.18/A. He further deposed that all the accused persons led them to Kabari Shop of Bajrangi at Begumpur, Delhi, where the accused persons had sold the looted hardware articles. Accused Bajrangi took out four kattas containing hardware articles lying in his room under the cot. IO had also seized the same vide seizure memo Ex.PW.18/B and kept the same in cloth parcels in the same recovered kattas / cartoons and sealed the same with the seal of AKA. Accused Bajrangi was also arrested and personally searched and his disclosure statement Ex.PW.18/C was also recorded by the IO. Thereafter the case property and accused persons were taken to PS Vasant Kunj South.
51. PW18 identified the case property i.e. One plastic katta containing 20 bolts and other plastic katta containing 20 kabze (steel hinges) Ex.PW-18/P1(colly), one pants and shirt with badge (DP) which were recovered from the Maruti Van DL4CF 6899 as Ex.PW-18/P-2, and another pants and shirt with badge (DP) recovered from Maruti Van DL4CF 6899 from the possession of accused persons as Ex.PW-18/P-3.
52. PW18 also identified the case properties brought by the Superdars, recovered from the possession of accused persons FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 26 of 77 as Ex.PW18/P4 (colly) and photographs (11 in number) as Ex.PW18/P5A1 to Ex.PW18/P5A11.
53. During cross-examination, PW18 stated that there is no distinct specification mark on the case property brought by superdar Karan from which it can be said that the property is the same which was released to him on superdari. He further stated that neither the FIR number nor the details of the case are mentioned on any of the cartons produced by superdar Karan. PW18 denied the suggestion that the case property brought by superdar Karan appears to be new and recently packed. PW18 stated that he did not remember if any of the case property produced by superdar Karan was recovered from the Van allegedly used by the accused persons at the time of incident. PW18 also denied the suggestion that the case property brought by the superdar Karan was not the same which was allegedly recovered in the plastic sac from the accused persons. He further stated that they had seen all the articles kept in plastic kattas allegedly recovered at the instance of the accused persons in the said godown.
54. PW18 further stated that IO had prepared the seizure memo of recovered articles and therefore, he could not say if the IO had recorded the details of the articles recovered from the separate kattas. He voluntarily deposed that the items recovered were hardware items. He also stated that he had gone through the seizure memo before putting his signatures on the same and that the details of the items recovered had been duly mentioned in the seizure memo by the IO.
55. PW18 admitted that photographs Ex.PW18/P5A1 and Ex.PW18/P5A2 are the photographs of the case property FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 27 of 77 brought by superdar Karan in his car. PW18 also admitted that the boxes shown in blue colour were of plastic boxes and other boxes were of cardboard boxes and the same were kept in big cardboard boxes. He denied the suggestion that other packed material shown in Ex.PW18/P5A2 was packed in polythene bags.
56. PW18 also stated that the case properties brought by other superdars except Karan in truck contained in 100 bags. He admitted that there were some gunny bags and some were plastic bags and that most of the case properties were visible as the gunny bags were in torn condition and the case properties appears to be old properties. He also stated that none of the gunny bags and plastic bags have the particulars of the present case and there is no specific identification mark on the said case properties. The IO had put his specific identification mark on some of the bags by signing and mentioning the FIR number. He also stated that two gunny bags were recovered from the Van and remaining case properties were recovered in plastic bags and cartons and that all the case property brought in the truck was recovered from the godown of Village Mangeshpur, Qutub Garh Road, Delhi. He also stated that all the case property was recovered in the same gunny bags and plastic bags which were brought in a truck by the superdars. He further stated that some plastic bags contained screws also but he could not tell in how many kattas those screws were found. PW18 admitted that instead of 40 cartons as mentioned in the seizure memo, only six cartons had been produced by the superdar karan and the remaining case properties produced by the remaining superdars were either in the gunny bags or in FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 28 of 77 the plastic bags.
57. PW18 did not remember if any name of company or specific mark of any company was engraved on the case property which was seized by the IO. He stated that when the case property was seized, he saw the entire case property when the same was taken out from their respective bags and cartons. He further stated that they saw the Van coming at a distance of about 20 or 30 meters from the barricade as he was standing by the side of the barricade. He further stated that they all took out the accused persons from the Van after the van was stopped. He further stated that till he left the spot with the rukka, the writing work was done by the IO while standing on the road. He also stated that he returned with copy of FIR from PS to the spot at about 5.00/5.30 PM alongwith ASI Ashwani in mini bus. He also stated that all the accused were thereafter made to sit in that mini bus and then ASI Ashwani recorded the disclosure statements of accused persons one by one. He also stated that they reached Village Mungeshpur after dawn and remained there for about 2 hours. There was no other building by the side of godown from where the recovery was effected. He also stated that when they reached there, godown was not locked but was bolted from outside and there were agriculture fields on all sides of that godown and that there was no person present inside the godown. He further stated that there was no other article lying in that godown except 65 kattas and 40 cartons. He further stated that they took the mini bus inside the godown and the writing work was done while sitting inside the mini bus. He also stated that they all including accused persons alighted from the mini bus into the FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 29 of 77 godown except accused Bajrangi. He further stated that all the bags and cartons were opened and all the goods lying in them were taken out and after counting those goods, the seizure memo was prepared by the IO.
58. He further stated that thereafter, they reached Village Begumpur in night time and there was a small shop which was opened when they reached there. He also stated that accused Bajrangi was present in that shop and there were shops in the neigbourhood of that shop but none of those shops were open at that time. He further stated that they remained there for about 30 minutes and the writing was done by the IO while sitting on the takhat in that shop. PW18 did not remember if any mark of identification of company was engraved or not on the goods recovered from that shop. He could not identify the goods which were recovered from the shop of accused Bajrangi.
59. PW19 Sh. Ashwani Chauhan deposed that he was the registered owner of Maruti Van Omni bearing registration no. DL4CF 6899. He further deposed that he had sold the same to one Rajesh on 11.12.2009 in the sum of Rs.55,000/- and received Rs.45,000/- from him and Rs.10,000/- were outstanding. He further deposed that he also filled up Form
-29/30 regarding transferring of said vehicle and later on came to know that said Rajesh did not get transfer the same in his own name.
60. This witness was not cross examined on behalf of accused persons despite opportunity given.
61. PW19 HC Devender Kumar (inadvertently numbered as PW19) has deposed that on 25.05.2010, he was posted as FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 30 of 77 HC/photographer in Crime Team, West District, Delhi. On that day, he alongwith ASI Azad Singh, Incharge Mobile Crime Team and Ct. Suresh, Finger Print proficient reached at Tikri Border near police chowki where one Truck bearing no. DL 47A 4101 was stationed and IO/Inspector Ram Phal alongwith police staff was also present there. He further deposed that he took seven photographs of said truck from different angles, which are Ex.PW19/A-1 to Ex.PW19/A-7 and also produced their negatives Ex.PW19/B-1 to Ex.PW19/B-7.
62. During cross-examination, PW19 stated that they reached at the spot at about 2.30 PM and remained there upto 3.30 PM. He admitted that public persons were passing from there and that the truck was stationed in open place. He did not know whether the photographs were handed over to IO before filing the challan or not.
63. PW20 Ct. Suresh Chand deposed that on 25.05.2010 he was posted as Constable/finger Print proficient in Crime Team, West District, Delhi. On that day, he alongwith ASI Azad Singh, Incharge Mobile Crime Team and HC Devender Kumar photographer reached at Tikri Border near police chowki where one Truck bearing no. HR47A 4101 was stationed and IO Inspector Ram Phal alongwith police staff was also present there. He further deposed that the said truck was fully dusty and hence, no chance print were lifted from the truck and he prepared his report Ex.PW20/A and handed over the same to IO.
64. During cross-examination on behalf of accused persons, PW20 stated that they left the office of crime team at about 1.30 PM and reached at the spot at about 2.40 PM and FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 31 of 77 remained there for half an hour. He also stated that the distance between the police chowki and the spot where the vehicle was stationed was about 200-250 meters but he did not know whether any police official was called from police chowki at the spot. He admitted that the public persons were passing from there. He also admitted that the truck was stationed in one place i.e. sub-way.
65. PW21 ASI Harjeet deposed that on 30.05.2010 he was posted at PS Vasant Kunj, South. On that day, when he along with HC Surender Singh, HC Subhash, HC Banni Singh, Ct. Ajeet and Ct.Pradeep were present near CNG pump, Mehrauli Mahipal Pur Road and were checking the vehicles, a secret information was received by HC Surender that 5/6 persons would come in a Maruti Van bearing Registration no.DL-4CF 6899 carrying the looted articles. Thereafter they made nakabandi and started checking the vehicles. He further deposed that at about 2.15 PM a van came from the side of Mehrauli and they forced the van to stop. In the said van six persons were sitting and on enquiry they revealed their names as Rajinder, Rajesh, Jagbir, Raji Ahmad, Rafiq and Mohd. Khalid. He further deposed that on the casual search of Rajinder, one desi katta and from Rafiq one buttondar knife was recovered. From the search of van, two plastic bags were found under the rear seat containing some hardware articles. He further deposed that from the dicky of van two police uniforms on which batch of DP were found. The measurement of katta was done, said two plastic katta containing hardware articles were seized vide memo Ex.PW21/A and the aforesaid uniforms were seized after sealing vide seizure memo FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 32 of 77 Ex.PW21/B.
66. PW21 further deposed that IO had conducted the proceedings regarding recovery of katta and knife from accused Rajender and Rafiq respectively and prepared their sketch memos and seized after sealing. IO H. Ct. Surender prepared rukka and got registered the FIR No.145/2010 under Sections 411/171/34 IPC and 25 Arms Act, P.S. Vasant Kunj. He further deposed that after registration of FIR No.145/2010, SI Ashwani conducted the further proceedings and arrested all the six accused persons and recorded their disclosure statements. He also exhibited the disclosure statement of accused Razi Ahmed @ Razzi as Ex.PW21/A. He further deposed that thereafter, all the six accused persons and police team reached at Mungesh Pur Village, Qutab Garh Road and all the accused persons led them at godown and stated that they had kept the robbed/looted articles there. From the room of first floor of godown, 65 plastic kattas and 40 cartons were recovered which were found containing hardware articles i.e. door fittings etc. IO seized all the said kattas and cartons vide memo Ex.PW18/A. He further deposed that all the accused persons also led them to the shop of Bajrangi Kabadi at Rajiv Nagar Extn., Begum Pur where Bajarangi Kabadi took out four kattas and two cartons containing hardware articles from inside his room lying under the coat. IO seized the same vide memo Ex.PW18/B. He further deposed that IO arrested accused Bajrangi and also recorded his disclosure statement Ex.PW18/C. PW21 identified the case property i.e. police uniform i.e. pant and shirt having label of DP as Ex.P-C, one khaki shirt having badge on both the flaps of shoulder and the FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 33 of 77 cloth monogram of DP on the sleeve and one khaki pants as Ex.P-D, 20 pieces of stainless steel (L-Drop) as Ex.P-A, 20 pieces of stainless steel Kabze (door fitting) Ex.P-B (colly), photographs of Maruti Van as Ex.PW16/P1 to Ex.PW16/P3. He also identified 14 photographs of case property as Ex.PW18/P5A1 to Ex. PW18/P5A11, Ex.PW18/P5A1, Ex.PW18/P5A2 & Ex.PW18/P5A10. He also identified all the accused persons.
67. During cross examination on behalf of accused persons, PW21 stated that he alongwith other police officials reached at CNG Pump at about 01:30/02:00 pm and at that time secret informer was with H. Ct. Surender. He also stated that they placed Nakabandi within 5 to 10 minutes after reaching near CNG Pump and Maruti Van No.DL-4CF-6899 reached at the spot of Nakabandi after five or ten minutes. He stated that they took iron barricades of PS on the road for Nakabandi. He also stated that the said Maruti Van was got stopped just at the iron barricades and accused Rajesh was driving the said van. He further stated that he caught Rajji, who was sitting on the back seat of the conductor side in the Van and took him out from the said Van. He did not remember which of the accused persons were taken out from the Maruti Van by which of the police officials. He further stated that first of all, the personal search of accused persons was taken, which took about 5 to 10 minutes and thereafter, Maruti van was searched. He further stated that police uniform is not easily available in the market and it can only be purchased only by showing the identity card of Delhi Police and badge of DP. He further stated that they remained at the spot for about 2 to 3 hours and all the writing FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 34 of 77 work was done by the IO and other staff while standing on the road at the spot. He further stated that from the spot, they left for Village Mungeshpur in Maruti Van and in their vehicle. He also stated that Village Mungeshpur was about 25 km away from the spot and they reached there at about 05:00/06:00 pm. He further stated that the said godown was situated at the outskirt of Village Mungeshpur before entering the village. He further stated that the said godown was locked at that time and IO had opened the said lock but he could not tell how it was opened.
68. He further stated that they remained there for about two hours. He also stated that they were in a private vehicle and the IO had called TATA 407 of Delhi Police from the PS which reached there as soon as they reached there. He further stated that at the spot near CNG Pump, disclosure statement of all the accused persons was recorded by ASI Ashwani. He further stated that they were having two/three private vehicles with them but he could not tell the registration number, colour or make of those vehicles. He also stated that the IO did not inquire in the village about the ownership of said godown. He did not know if ASI Ashwani or any other police official had called any public person from the village to join the investigation at Village Mungeshpur. He also stated that no other article was kept in that godown except the seized articles. He also stated that they left the godown in open condition and reached at Rajeev Nagar, Begumpur at about 07:00/08:00 pm. He further stated that accused Bajrang Lal was having a small shop and behind that small shop, he had his residence. He also stated that accused Bajrang Lal was having kabadi shop and FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 35 of 77 some rejected goods (kabad) of iron and plastic were lying in open condition in that shop. He further stated that accused Bajrang Lal was sitting at his shop on a charpai and under that charpai, four plastic bags and two cardboard cartons were kept, which were seized by them. He did not remember if anything was printed on the cartons and plastic bags. He could not tell if the door fitting articles were in loose condition or in packed form in those plastic bags or cartons. He further stated that IO seized those plastic bags and cartons without opening them and loaded the same in abovesaid TATA 407. He further stated that he did not tell that 65 plastic kattas and 40 cartons were recovered from the room of first floor of godown on 06.04.2017 and voluntarily stated that the said articles were recovered from the ground floor of the godown. He further stated that no window panes of Maruti Van was broken. He further stated that both the registration number plates were affixed on Maruti Van but he could not tell about the font of writing of registration number on the plates.
69. PW22 Sh. Kamal Kaushal, Ahlmad had brought the summoned record i.e. judicial file of case FIR No. 145/2010 (Ex.PW1/A), PS Vasant Kunj under Section 25 Arms Act wherein accused Rajinder @ Pappe and Rafiq @ Babu were charged for the offence u/s 25 Arms Act.
70. This witness was not cross-examined on behalf of accused persons despite opportunity given.
71. PW23 Dr. Shanker Gupta appeared on behalf of Dr. Kundan and has deposed that Dr. Kundan had left the services of the hospital and he stated that he is well conversant with the handwriting and signatures of Dr. Kundan. PW23 identified FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 36 of 77 the handwriting and signatures of Dr. Kundan on MLC Ex.PW23/A of injured Thambu. He also deposed that on the same day, Dr. Kundan had also examined patient Krishan and PW23 had also identified the handwriting and signatures of Dr. Kundan on MLC Ex.PW-23/B of Patient Krishan. PW23 has also deposed that as per MLC, patient Krishan had suffered injuries i.e. Swelling left cheek internally and Scratches below left eye.
72. This witness was also not cross-examined on behalf of accused persons despite opportunity given.
73. PW24 SI Ashwani Kumar deposed that on 30.05.2010, after registration of FIR No.145/2010 (Ex.PW11/A) under Section 411/171/34 IPC & 25 Arms Act, investigation of the case was marked to him and thereafter he reached at Mahipal Pur near CNG Petrol Pump where H. Ct. Surender alongwith police staff met him. He further deposed that H. Ct. Surender had produced six sealed parcels containing knife, pistol and cartridge, police uniforms (two parcels) and hardware articles (two plastic kattas) having the seal of JP and one Maruti Van bearing registration No.DL-4CF-6899 which was stationed at the spot alongwith seizure memos of the same and sketch memo of katta, cartridge and knife to him. He further deposed that HC Surender had also produced six accused persons namely Rajesh, Rajender, Rajji, Jagbir, Mohd. Khalid and Rafiq @ Babboo. Thereafter, PW24 prepared site plan Ex.PW24/A at the instance of H. Ct. Surender and all the six accused persons were arrested after interrogation. He further deposed that he conducted personal search of accused persons and also recorded their disclosure statements Ex.PW24/B, FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 37 of 77 Ex.PW24/C, Ex.PW24/D, Ex.PW24/E, Ex.PW21/A and Ex.PW24/F respectively.
74. He further deposed that he also brought the govt. vehicle i.e. TATA 407 at the spot and thereafter, they alongwith all the case property and accused persons returned to PS and he deposited the case property in the Malkhana. He further deposed that thereafter, at the instance of all the six accused persons and in pursuance of their disclosure statements, they reached at a godown at Mungeshpur Village and from the said godown 65 plastic kattas and 40 cartons containing hardware articles and door fittings were recovered and seized vide memo Ex.PW18/A and sealed the said plastic kattas and cartons with the seal of AKA in separate parcels. He also deposed that thereafter, at the instance of accused persons, they reached at kabadi shop of accused Bajrangi Yadav at A-16, Rajiv Nagar Extn. Begum Pur, Delhi and accused Bajrangi got recovered four kattas containing hardware articles and two cartons also containing hardware articles from under the charpai lying in his room at ground floor of his house. PW24 seized the same vide memo Ex.PW18/B and sealed the said kattas and cartons in cloth parcels with the seal of AKA. Thereafter, PW24 interrogated and arrested accused Bajrangi, conducted his personal search and also recorded his disclosure statement Ex.PW18/C. He further deposed that IO of this case met him later on and he handed over all the documents to him. He identified the case property i.e. three photographs of Maruti Van bearing registration No.DL4C-F-6899 Ex.PW16/P1 to Ex.PW16/P3.
75. During cross-examination on behalf of accused persons, FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 38 of 77 PW24 stated that he reached at the spot on his motorcycle at about 02:30 pm and none of the article which were produced by H.Ct Surender were recovered in his presence. He also stated that when he reached at the spot, six police officials and one Maruti Car of the police staff were present there apart from the Maruti Van allegedly recovered from the accused persons and the said six parcels were lying in the Maruti Van seized by IO H. Ct. Surender and the police staff and the accused persons were standing outside from the Maruti Van. He also stated that they remained there for about one/ one & half hours. He also stated that the CNG Pump was at a distance of about 200 yards from the spot and two iron barricades were also lying there by the side of Maruti Van when he reached at the spot. He stated that he recorded the disclosure statements of accused persons while sitting in the Maruti Car of police official and the said six parcels were loaded in TATA 407. He also stated that he took about 15 minutes in interrogating and writing the disclosure statement of one accused. He admitted that nut bolt, hinges, latches and handles are different things. He also stated that the hardware articles were only mentioned in the statement of accused Khalid and Rajji. He also stated that village Mungeshpur was about 20 to 25 km from the spot and they reached there at about 05:30 pm. He also stated that the said godown was locked and one of the accused took out the keys of godown from somewhere and he opened that godown. He further stated that there was no other article lying in the godown except the goods recovered by them and the sankals were recovered in kattas and nut bolts were recovered in cartons. He also stated that word 'Stainless Steel' was FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 39 of 77 engraved on sankals and except that no other word was found written or engraved on the kattas, cartons and the goods. He also stated that accused themselves told that one Master of Village Mungeshpur is owner of the godown. He further stated that they remained there for about one and half hour/two hours and did the writing work while sitting on kattas in the godown. He further stated that the shop of accused Bajrangi at Rajiv Nagar was about 15 km from the said godown and they went there in TATA 407. He further stated that shop of Bajrangi was in open condition and accused Bajrangi was sitting on a charpai in front of his shop when they reached there. He further stated that he interrogated accused Bajrangi in front of his shop where he was sitting. He also stated that the articles were recovered from the first room of house of accused Bajrangi and apart from the seized goods, house hold articles and furniture were also lying in that room. He also stated that they remained there for about one hour and all writing work was done while sitting on charpai. He also stated that H. Ct. Harjeet took Maruti Van to PS Vasant Kunj from the spot while driving. He further stated that the window panes of that Maruti Van were not in broken condition. He further stated that during investigation, he could not find as to who was the owner of that Maruti Van.
76. PW25 Inspector Ramphal Singh has deposed that on 24.05.2010, he received this case file for investigation and examined the same. He further deposed that on 25.05.2010, complainant Krishan Kumar came in the PS and stated that the truck bearing registration No.HR-47A-4101 TATA LP on which the goods of hardware were loaded from Rohtak to FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 40 of 77 deliver the same in Delhi, which was looted by the accused persons is now stationed at Main Road, Village Bam Doli, District Jhajjar in abandon condition. On this, PW25 alongwith Ct. Rajesh went there and found that the said truck was stationed on Main Road, Village Bam Doli, District Jhajjar in empty condition. He brought the same to PP Tikri Border and got inspected the same through Crime Team West District and also took the photographs of the same and thereafter, seized the same vide memo Ex.PW18/A. He further stated that thereafter, he brought the same in PS Nangloi and deposited the same in Malkhana. He recorded the statement of Ct. Rajesh and collected the copy of Finger Print Report Ex.PW20/A. He further deposed that on 01.06.2010, he received DD No.30A Ex.PW25/A lodged by ASI Ashwani from PS Vasant Kunj, Delhi regarding the arrest of accused persons in case FIR No.145/2010 under Sections 411/171/34 IPC & 25 Arms Act of PS Vasant Kunj and making of confession by the accused persons namely Rajesh, Rajender, Rajji, Mohd. Khalid, Rafiq, Jagbir and Bajrangi of the present case therein. He further deposed that thereafter, on 03.06.2010, he went to PS Vasant Kunj and met with the IO of above said case namely ASI Ashwani and collected documents i.e. copy of site plan Ex.PW24/A, copy of seizure memo of kattas and cartridges Ex.PW16/E, copy of knife Ex.PW16/B, copy of sakals and kabjas Ex.PW21/A, copy of seizure memo of police uniform Ex.PW16/F, copy of seizure memo of Maruti Van Ex.PW16/A, copy of seizure memo of hardware articles Ex.PW18/A, copy of seizure memo of all door fittings Ex.PW18/D and copy of sketch of kattas, cartridges and knife Ex.PW16/C and FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 41 of 77 Ex.PW16/B. He also received the copy of disclosure statements of Rajesh Ex.PW24/D, Rajender Ex.PW24/B, Rajji Ex.PW21/A, Mohd. Khalid Ex.PW24/E, Rafiq Ex.PW24/C, Jagbir Ex.PW24/F and Bajrangi Ex.PW18/C and copy of the above FIR Ex.PW11/A and placed the same on record. PW25 had recorded the statements of PWs of the above said FIR No.145/2010 related to present case. Thereafter, PW25 moved the application for production of the accused persons and on 09.06.2010 on production of the accused persons before the court of M. M., he with the permission of court interrogated them and arrested them vide arrest memos Ex.PW25/B to Ex.PW25/H respectively. He further deposed that all the said accused persons were produced before the court in muffled face and he moved an application Ex.PW25/K for TIP of all the accused persons except accused Bajrangi but they refused to participate in the TIP proceedings. PW25 collected the copy of TIP proceedings Ex.PW25/J1 to J6. He also exhibited the application for taking the copy of TIP proceedings as Ex.PW25/L.
77. He further deposed that on 11.06.2010, he alongwith ASI Umed Singh went to Malkhana of PS Vasant Kunj and received the parcels of the case property and Maruti Van bearing registration No.DL-4CF-6899 and brought the same in the Malkhana of PS Nangloi and deposited there. He also seized the said parcels of the case property and Maruti Van vide memo Ex.PW25/M. He further deposed that on 22.06.2010, he received police custody remand of all the accused persons and during their PC remand, all of them led PW25 at the place of occurrence and pointed out the same vide FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 42 of 77 pointing out memo Ex.PW25/N. He further deposed that on the same day, complainant had also come in the PS to know the progress of this case and identified all the six accused persons except Bajrangi in the PS and stated that these are the same persons who had looted his truck alongwith the goods. PW25 recorded the statement of complainant. He further deposed that during investigation, he had collected the document of ownership of Maruti Van DL-4CF-6899 from the Transport Department vide application Ex.PW25/O and document/particulars of the said vehicle Ex.PW25/P. PW25 also collected the documents i.e. invoices in respect of the ownership of case property (running into 12 pages) Ex.PW4/A, Ex.PW25/Q1 to Q9, Ex.PW2/B and Ex.PW2/C respectively. He had also received photocopy of the other documents related to the case property running into 32 pages and marked as Mark A1 to A32.
78. He identified three photographs Ex.PW16/P1 to Ex.PW16/P3 of Maruti Van bearing registration No.DL4C-F- 6899 and he correctly identified the car which was seized by him from the MHC (M) of PS Vasant Kunj and deposited in the Malkhana of PS Nangloi. He was shown photographs Ex.PW17/P1 and P5 of Truck bearing registration No.HR- 47A-4101 and identified the same which was seized by him. He had identified the Maruti car bearing No. DL-4CF-6899 parked in the premises of Tis Hazari Court Complex which was seized vide seizure memo Ex.PW25/M and exhibited the photographs of the car as Ex.PW16/P1 to Ex.PW16/P3 and Maruti car as Ex.PW25/P1. PW25 also seen the photographs of truck produced by Superdar and PW25 identified the same FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 43 of 77 truck which was seized vide memo Ex.PW18/A and exhibited the photographs as Ex.PW25/X1 to Ex.PW25/X7.
79. During cross-examination on behalf of all the accused persons, PW25 stated that Krishan Kumar complainant met him in the PS on 25.05.2010 at about 02:00/02:30 pm and then they left for Village Bamdoli and reached there after about one hour or one and half hour. He also stated that crime team of Janak Puri reached at PP Tikri Border PS Nangloi on 25.05.2010 itself in the evening hours. He also stated that he alone reached PS Vasant Kunj on 03.06.2010 after lunch time and remained there for about one hour. He further stated that he moved application for production warrants of accused persons on 03.06.2010 and accused persons were produced in the court on 09.06.2010 as per the order of the Court. He also stated that he took into possession the record of accused persons prepared by police of PS Vasant Kunj but the said record was not having photographs of accused persons. He further stated that he did not see the accused persons before 09.06.2010. PW25 further stated that on 22.06.2010, complainant Krishan Kumar reached at PS Nangloi at about 11:00/11:30 am and remained with him for about 30 minutes and except Krishan Kumar, no other public witness reached at PS Nangloi till the accused persons remained on police remand. He further stated that the complainant Krishan Kumar told him the description of accused persons but he (PW25) had not recorded any such statement of Krishan Kumar containing the description of accused persons.
80. PW25 further stated that on 23.06.2010, he took all the accused persons for pointing out the place of occurrence. He FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 44 of 77 admitted that he already knew the said place of occurrence and he had prepared only one pointing out memo for all the six accused persons except Bajrangi. He also stated that he took the police remand of accused persons on 22.06.2010 at about 02:30/03:00 pm and reached PS at about 04:00 pm. PW25 also admitted that fonts of writing on the number plate of registration number of Maruti Van are different on the front number plate than on the rear number plate in photographs Ex.PW16/P1 to Ex.PW16/P3.
81. PW26 Ct. Dilawar Singh deposed that on 22.05.2010, after registration of FIR, duty officer had handed over him the copy of FIR and original rukka and as per the directions of DO, he handed over the same to the IO ASI Ishwar Singh at the spot i.e. Rohtak Road near Railway Station - Metro Station. Thereafter, they searched the accused persons but accused persons could not be traced out.
82. During cross examination on behalf of accused persons, he stated that he reached the spot at about 08:15 pm. Ct. Mukesh was also with IO at that time and they all together left the spot. He also stated that he went to PS and IO alongwith Ct. Mukesh left from there to some other place.
83. PW-27 H. Ct. Inder had produced registers no.19 and 21 of the year 2010 and exhibited the relevant entry in register no. 19 as Ex.PW27/A (OSR). He also got exhibited the RC No. 65/21/10 as Ex.PW27/B (OSR) through which case property i.e. one Maruti Van No.DL-4CF-6899, one sealed pulanda, one plastic kattas, four kattas sealed with the seal of AKA and 65 plastic kattas sealed with the seal of AKA were sent to PS Nangloi.
FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 45 of 77
84. During his cross-examination PW27 deposed that he had no personal knowledge about the entries.
FINDINGS & OBSERVATIONS:
85. I have heard the arguments advanced before me by the Ld. Addl. PP for the State and Ld. Defence Counsel. My findings are as under:
Ocular Evidence:
86. Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspects connected with the offence, there is no reason to reject their testimonies.
87. The case of the prosecution is based upon the testimony of Sh. Krishan Kumar (PW8) who is complainant of the present case as well as upon testimony of other witnesses.
88. Ld. Counsel for the accused persons namely Rafiq @ Babboo, Rajinder, Jagbir @ Jaggu, Rajji Ahmed and Mohd. Khalid has vehemently argued that the witness i.e. PW8 Sh. Krishan Kumar Gupta during his cross-examination has made improvements and has not been able to depose regarding specific roles of accused persons. Ld. Counsel has also argued that PW8 during his testimony before this court has not been able to depose as to which of the accused persons were armed with pistols or were wearing police uniforms. Ld. Counsel has also argued that the manner in which PW8 has identified the accused persons during his testimony is not admissible in FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 46 of 77 evidence and thus the accused persons are liable to be acquitted. Ld. Counsel has also argued that during the course of trial, driver Thambu Ram who is a material prosecution witness has not been examined and thus accused are liable to be acquitted in respect of charges framed against them.
89. On the other hand, Ld. Addl. PP for the state has argued that there is nothing on record to disbelieve the testimony of PW8 Sh. Krishan Kumar Gupta and during his testimony, PW8 has identified accused persons namely Rafiq @ Babboo, Rajinder, Jagbir @ Jaggu, Rajji Ahmed and Mohd. Khalid before the court being the offenders. Ld. Addl. PP has also argued that despite the fact that driver Thambu Ram could not be examined by the prosecution during trial being not traceable, there is nothing on record to disbelieve the testimony of PW8 Krishan Kumar Gupta who has supported the case of prosecution.
90. Since the prosecution is placing its heavy reliance on the testimony of Sh. Krishan Kumar (PW8), it is therefore necessary for this Court to first determine whether his testimony is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 47 of 77 is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
91. The law regarding reliability of a witness has been dealt by Hon'ble Supreme Court in Judgment titled as MAHENDRA SINGH AND ORS. Vs. STATE OF M.P. in CRIMINAL APPEAL NO.764 & 765 OF 2021; JUNE 03, 2022 wherein the Hon'ble Supreme Court has held that in Criminal Trial - Witnesses are of three types, viz., (a) wholly reliable; (b) wholly unreliable; and (c) neither wholly reliable nor wholly unreliable. When the witness is "wholly reliable", the Court should not have any difficulty inasmuch as conviction or acquittal could be based on the testimony of such single witness.
FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 48 of 77
92. Equally, if the Court finds that the witness is "wholly unreliable", neither conviction nor acquittal can be based on the testimony of such a witness. It is only in the third category of witnesses that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.
93. Now, it has to be seen as to whether the testimony of PW8 Sh. Krishan Kumar Gupta falls in which of the said categories i.e. (a) Wholly reliable, (b) wholly unreliable and (c) neither wholly reliable nor wholly unreliable.
94. This witness i.e. PW8 Sh. Krishan Kumar Gupta has been cross examined at length on behalf of accused persons but this witness stood firm even during cross-examination and from the cross-examination nothing favourable to accused persons namely Rafiq @ Babboo, Rajinder, Jagbir @ Jaggu, Rajji Ahmed and Mohd. Khalid comes out.
95. Perusal of the testimony of PW8 Sh. Krishan Kumar Gupta reveals that this witness falls within the category of wholly reliable witness as this witness has narrated the manner in which the offence took place. The witness has specifically deposed that the driver of Maruti van overtook his truck and the said driver was wearing police uniform. He also specifically deposed that the said driver gave signal to stop and they thought that the said persons were from sales tax, accordingly, the driver of the truck i.e. Thambu Ram asked PW8 as to what to do and PW8 asked the driver to stop the truck and accordingly, driver Thambu Ram stopped the truck. This witness has deposed that the driver of Maruti Van wearing police uniform came towards driver side and asked for the FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 49 of 77 documents of the vehicle. This witness has further elaborated that when Thambu Ram was taking out the documents of the vehicle after standing from his seat, the person who was asking for the documents of the truck, boarded the truck and sat on the driver seat of the truck. He further elaborated that the other person who was sitting on the side of the driver of Maruti Van wearing police uniform came there and opened the gate of his side and asked to show the articles loaded in the truck and also asked to show the documents. This witness has further elaborated that accordingly, he had shown the documents of the articles i.e. the hardware items loaded in the truck, this person boarded the truck from his window side and thereafter, 2-3 other persons also boarded the truck and after boarding the truck, they gave beatings to him and driver Thambu Ram and they were asked by those persons to lay upside down on the rear seat otherwise they would be killed. This witness has further deposed that one person had kept the revolver on his tample and other persons put knife on the person of driver Thambu Ram and thereafter they all had taken (robbed) their mobile and cash. This witness has further elaborated that the offender who sat on the driver seat started driving the said truck and after going at a distance of 1 km, they took a U-turn and proceeded towards Bahadurgarh and the legs and mouths of PW8 and driver Thambu Ram were tied by the accused persons. This witness has further elaborated that thereafter accused persons got him and Thambu Ram down from the truck at some isolated place in the same position i.e. their hands and legs and mouths were tied and at that place 2-3 other persons were present who also gave beatings to them and FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 50 of 77 the said 2-3 persons kept vigil over them and then the accused persons drove their loaded truck to some unknown destination. This witness has further elaborated that after some time the said 2-3 persons who kept vigil over them had some conversation with someone for 2-3 times and after some time the same Maruti Van came there and the said 2-3 persons also boarded the said Maruti Van and they all went away from there. This witness has also identified accused persons during his testimony being the offenders.
96. It is evident from the above said testimony that the witness Sh. Krishan Kumar Gupta (PW8) has duly identified accused persons namely Rafiq @ Babboo, Rajinder (since deceased, however, he was alive and present in the Court at the time of recording of testimony of PW8), Jagbir @ Jaggu, Rajji Ahmed, Rajesh (since deceased, however, he was alive and present in the Court at the time of recording of testimony of PW8) and Mohd. Khalid being the offenders during his testimony in the court. PW8 was cross examined by Ld Addl. PP for the State regarding the identity of accused Bajrangi but PW8 could not identify the accused Bajrangi in the Court as the offender who committed the dacoity. Though the combined charge for the commission of offence was framed against all the accused persons including the accused Bajrangi, however, as per the case put forth by the prosecution, the accused Bajrangi was the owner of the kabaadi shop from where part of the looted goods were recovered during the investigation and he got recovered kattas and cartons containing the looted hardware articles and it is the admitted case of the prosecution that the accused Bajrangi was not present at the place of occurrence and was FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 51 of 77 not aiding or abetting the actual offenders in any manner.
97. I may also note that the witness PW8 Krishan Kumar Gupta is the victim/eye witness and has stood by his version. His testimony has its own efficacy and relevancy and the fact that he had sustained injuries on his body and was also medically examined would show that he was present at the place of occurrence and had seen the occurrence by himself [Ref.: Mohar vs. State of UP reported in 2002 AIR (SC) 3279: 2002 Cri.L.J. 4310]. Evidence of injured eye witness cannot be discarded in toto on ground of criminal disposition towards accused or improbability of narrating the details of actual accident. More so, on perusal of evidence tested in light of broad probabilities it can be concluded that eye-witness are natural witnesses and they could not have concocted a baseless case against accused. Further, in the case of State of Madhya Pradesh Vs. Mansingh & Ors. reported in 2003 (3) Cri.C.C. 559: 2003 (10) SCC 414 the Hon'ble Supreme Court of India held that evidence of injured witness have greater evidentiary value, unless compelling reasons exist.
98. In the light of aforesaid discussion and the settled law, it can be concluded that the testimony of PW8 falls within the category of wholly reliable witness. Even during cross examination, nothing favourable has come out against accused persons namely Rafiq @ Babboo, Jagbir @ Jaggu, Rajji Ahmed and Mohd. Khalid and thus, there is nothing on record to disbelieve the testimony of PW8 Sh. Krishan Kumar Gupta.
Apprehension / Arrest of accused persons and Recovery of robbed articles:-
99. Here it is observed that PW-16 HC Surender Singh, PW18 FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 52 of 77 HC Pardeep and PW21 ASI Harjeet have deposed that on 30.05.2010 they were working in PS Vasant Kunj. On that day, the aforesaid witnesses alongwith HC Subhash, HC Ajit Singh and HC Bani Singh were on patrolling duty in the area of Mahipalpur. At about 2.00 PM, a secret informer met PW16 HC Surender Singh and told that 5-6 boys are coming from the side of Mahipalpur leading towards Mehrauli in a Maruti Van bearing no. DL-2CF-6899 and carrying stolen goods and also possessing illegal arms. The police team put barricade in front of CNG patrol pump on the road leading towards Mehrauli. At around 2.20pm, they noticed the aforesaid Maruti Van and at the instance of informer, the same was got stopped and occupants of vehicle were checked. PW16 HC Surender Singh apprehended accused Rajender and other accused persons were nabbed by other police officials. The vehicle was checked in which two plastic bags were found containing latches (kabje and shankal) and two other polythene bags were found containing police uniforms. During search of accused Rajender, a loaded country made pistol was recovered and one buttondar knife was found in possession of Rafiq. The aforesaid witnesses have deposed that there were six persons in the said Maruti Van and at their instance the case property of this case was recovered. PW16 seized the Maruti Van bearing registration no.DL4CF 6899 vide seizure memo Ex.PW-16/A and he also prepared the sketch of the knife which was recovered from the possession of Rafiq vide memo Ex.PW- 16/B and sketch of the country made pistol and cartridge which were recovered from the possession of accused Rajinder vide memo Ex.PW-16/C. PW16 also seized the saankal and FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 53 of 77 kabza which were recovered from the said Maruti van vide memo Ex.PW-21/A. PW16 also sealed both the kattas with the seal of JP containing the case property of this case and each katta was containing 20 pieces each i.e. 20 saankal in one katta and 20 kabza in another katta. PW16 had also seized the two police uniform which were also recovered from the said Maruti Van vide memo Ex.PW-16/F and kept the same in cloth parcel and sealed with the seal of JP. After registration of FIR No. 145/2010, PS Vasant Kunj, ASI Ashwani came at the spot and he conducted the investigation. The aforesaid witnesses PW16, PW18 and PW21 identified one police uniform i.e. pants and shirt having label of DP Ex.P-C and also identified one khaki shirt with DP Badge on both the flaps of the shoulder and the cloth monogram of DP on the sleeve and one khaki pants Ex.P-D and also identified 20 pieces of stainless steel sankal (L-drop) on which Royal stainless steel is written, Ex.P-A (colly) and also identified 20 pieces of stainless steel Kabze (door fitting) on which Royal Stainless Steel is written Ex.P-B (colly) and also identified the Maruti Van in photographs Ex.PW16/P1 to Ex.PW16/P3. The aforesaid witnesses have also identified accused persons namely Rafiq, Rajender, Rajesh (since expired), Jagbir @ Jaggu, Rafiq Ahmed and Mohd. Khalid who were found present in the said Maruti Van and were arrested in case FIR No. 145/2010 PS Vasant Kunj.
100. Here it is observed that PW24 SI Ashwani Kumar to whom investigation of case FIR No. 145/2010 PS Vasant Kunj was marked has deposed that on 30.05.2010, H. Ct. Surender (PW16) had produced six sealed parcels containing knife, FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 54 of 77 pistol and cartridge, police uniforms (two parcels) and hardware articles (two plastic kattas) having the seal of JP and one Maruti Van bearing registration No.DL-4CF-6899 which was stationed at the spot alongwith seizure memos of the same and sketch memo of katta, cartridge and knife to him. He further deposed that HC Surender had also produced six accused persons namely Rajesh, Rajender, Rajji, Jagbir, Mohd. Khalid and Rafiq @ Babboo. Thereafter, PW24 prepared site plan Ex.PW24/A at the instance of H. Ct. Surender and all the six accused persons were arrested after interrogation. He further deposed that he conducted personal search of accused persons and also recorded their disclosure statements Ex.PW24/B, Ex.PW24/C, Ex.PW24/D, Ex.PW24/E, Ex.PW21/A and Ex.PW24/F respectively. He further deposed that thereafter, at the instance of all the six accused persons and in pursuance of their disclosure statements, they reached at a godown at Mungeshpur Village and from the said godown 65 plastic kattas and 40 cartons containing hardware articles and door fittings were recovered which were seized vide memo Ex.PW18/A and the said plastic kattas and cartons were sealed with the seal of AKA in separate parcels. PW24 has also identified the case property.
101. The aforesaid witnesses were cross examined at length but the aforesaid recovery witnesses remained firm even during cross-examination and nothing favourable to the defence has come out in favour of the accused persons Mohd. Khalid Khan, Jagbir @ Jaggu, Rafiq @ Babboo, Rajji Ahmed @ Rajji and Rajender @ Pappe. It has been argued on behalf of defence that no efforts were made to join independent public FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 55 of 77 witness and for want of non-joining of public witnesses, the arrest and recovery of robbed articles is doubtful.
102. On the other hand, Ld. Addl. PP has argued that the accused persons in the present case were arrested by the police officials of PS Vasant Kunj in case FIR No. 145/2010 and after the arrest of accused persons in case FIR No. 145/2010, their disclosure statements were recorded and pursuant to disclosure statements, accused persons got recovered robbed articles in huge quantity and despite cross-examination, nothing favourable to the defence has come out. Ld. Addl. PP has submitted that the prosecution has been able to prove the factum of arrest of aforesaid accused persons and recovery of robbed articles from their possession/instance.
103. I have considered the rival contentions and before coming to the merits of the argument, it is necessary to first briefly discuss the relevant provisions of law. As per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
104. Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:
a) Anything, state of things, or relation of things, or FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 56 of 77 capable of being perceived by the senses,
b) Any mental condition of which any person is conscious.
105. It further provides five illustrations as to what would constitute a fact which are as under:
1. That there are certain objects arranged in a certain order in a certain place, is a fact
2. That a man heard or saw something, is a fact.
3. That a man said certain words, is a fact.
4. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
5. That a man has a certain reputation, is a fact.
106. A co-joint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles".
107. The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 57 of 77 place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. King-Emperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered Section 27 of the Indian Evidence Act, as under:-
"...... Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......
.... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S. 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information........... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 58 of 77 embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact.... ........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.
This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
108. After considering the settled principles the Hon'ble Apex Court observed as under:
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 59 of 77 example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence....."
109. Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 60 of 77 discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.
The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence..."
110. In the said case the Hon'ble Supreme Court further went to explain that:
"..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place"
where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
111. The Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact" should be read with the definition of "fact" as contained FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 61 of 77 in Section 3 of the Evidence Act which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be confirmatory in character guaranteeing the truth of the information given to which facts the police officer had no access earlier which also includes recovery of material object. The Hon'ble Court further observed that so much of the information as relates distinctly to the fact thereby discovered is admissible.
112. Applying the settled principles of law to the facts of the present case, it is observed that initially the accused persons were found present in one Maruti Van which was found containing two plastic bags containing latches i.e. kabje and sankals alongwith police uniforms and certain arms and ammunitions. Here it is further observed that during investigation, accused persons made disclosure statements and pursuant to disclosure statement, they led the police officials at a godown at Mungeshpur village and from the said godown 65 plastic kattas and 40 cartons containing hardware articles and door fittings were recovered which PW24 SI Ashwani Kumar had seized vide seizure memo Ex.PW18/A. Seeing the quantum of recovery, it cannot be said that the articles in such a huge quantity were planted by the police upon the accused persons. Further, the aforesaid accused persons were apprehended and arrested in case FIR No. 145/2010 u/s 411/171/34 IPC & 25 Arms Act Ex.PW11/A at PS Vasant FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 62 of 77 Kunj. The recovery witnesses discussed above belonged to PS Vasant Kunj and after effecting recoveries of the aforesaid articles, the said articles were seized by the IO of the present case and hence, it cannot be said that the IO of the present case planted the articles recovered at the instance of accused persons.
113. In so far as the non joining of independent witnesses at the time of recovery of said robbed articles, I may observe that this will not be fatal to the case of the prosecution as it is common experience that public persons are generally reluctant to join police proceedings and there is general apathy and indifference on the part of public to join such proceedings. This position of law was reiterated in Aslam and Ors. (Mohd.) Vs. State reported in 2010 III AD (Delhi) 133.
114. It was observed by Hon'ble High Court that reluctance of the citizens to join police proceedings is well known and needs to be recognized. It cannot be disputed that public does not want to get dragged in police and criminal cases and want to avoid them, because of long drawn trials and unnecessary harassment. Similar view was taken in Manish vs. State, 2000 VIII AD (Scheduled Caste/ Scheduled Tribes (Prevention of Atrocities) Act, 1989) 29 and in A. Bhai Vs. State reported in AIR 1989 SC 696, wherein it was held that the court cannot be oblivious to the reluctance of the common man to join such raiding parties organized by the police, lest they are compelled to attend police station and Courts umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit.
115. Moreover, there is no reason to disbelieve the testimonies FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 63 of 77 of police officials regarding recovery of said articles from the possession or at the instance of accused persons namely Rafiq @ Babboo, Jagbir @ Jaggu, Rajji Ahmed and Mohd. Khalid. Their testimonies cannot be rejected merely because they happen to be police officers. As observed by the Hon'ble Supreme Court in Tahir Vss. State, reported in (1996) 3 SCC 338, no infirmity attaches to the testimony of police officials merely because they belong to the police force. It was observed in the case of Aner Raja Khima Vs. The State of Saurashtra reported in AIR 1956 SC 217 that the presumption that a person acts honestly and legally applies as much in favour of police officers as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof.
116. In view of the abovesaid facts and circumstances, I hold that the disclosure statements of accused persons namely Rafiq @ Babboo, Jagbir @ Jaggu, Rajji Ahmed and Mohd. Khalid, to the extent it relates to the recovery of aforesaid robbed articles is admissible in evidence under Section 27 of Evidence Act.
Judicial TIP of accused persons Rafiq @ Babboo, Jagbir @ Jaggu, Rajji Ahmed @ Rajji and Mohd. Khalid Khan :-
117. Here it is observed that PW-13 Sh. Ashish Aggarwal, the then Ld. MM has conducted Judicial TIP of aforesaid accused persons and has deposed that on 09.06.2010, he was posted as Metropolitan Magistrate, Delhi and on that day, an application moved by Inspector Ram Phal Singh was marked to him being FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 64 of 77 first Link MM, as per the directions of Ld. CMM, Delhi. He stated that accused Rajesh, Mohd. Khalid Khan, Jagbir @ Jaggu, Rafiq @ Babboo, Rajji Ahmed @ Rajji and Rajender @ Pappe were produced from JC and were identified by the IO but all of them refused to participate in TIP proceedings. PW13 also exhibited the TIP proceedings in respect of accused Rajesh (since deceased), Mohd. Khalid Khan, Jagbir @ Jaggu, Rafiq @ Babboo, Rajji Ahmed @ Rajji and Rajender @ Pappe (since deceased) as Ex.PW13/A to Ex.PW13/F. He also exhibited the application of IO Inspector Ramphal Singh for conducting TIP of accused persons as Ex.PW13/G and the application for supply of copy of TIP proceedings as Ex.PW13/H.
118. The record reveals that PW13 was not cross examined by any of the aforesaid accused persons. The huge quantity of case property is proved to have been recovered at the instance of accused persons and the accused persons have refused to participate in judicial TIP and they have not cross examined the Ld. MM and thus, the adverse inference has to be drawn against the accused persons.
Testimonies of Superdars/owners of case property:-
119. During the course of trial, prosecution has examined PW1 Sh. Sachin Bansal and PW2 Sh. Sushil Bansal who are Directors of Suzu Steel India situated at 106, IDC, Hissar Road, Rohtak and they have deposed that their company used to manufacture hinges, handle, door fittings and on 21.05.2010 they sent hardware items consignment to Aryavrat Transport company containing hinges, handle, L Drop etc. in Truck No. HR-47A-1401 and later on they came to know that the said FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 65 of 77 truck had been looted in the area of Nangloi. PW1 deposed that on 12.07.2010 he was called at PS Nangloi where they identified their hardware items and 50% to 60 % items were released to him vide superdarinama Ex.PW1/A. This witness has also seen the certified true copy of his bill/invoice no. 2901 & 700, builty no. 90608 and 90609 all dated 21.05.2010. PW1 and PW2 also identified the photographs bearing serial no. 319 to 325 of hardware items and collectively exhibited as Ex.PA. PW2 has also brought the original bills and builty of transport of goods and he also got the hardware items released on superdari vide superdarinama Ex.PW2/A.
120. It is observed that during the course of trial, prosecution has also examined PW3 Sh. Sunny Bansal who is the proprietor of R.B Industries situated at 13, IDC, Hissar Road, Rohtak and has deposed that on 21.05.2010, he sent hardware items to Aryavrat Transport Company containing hinges, handle, L Drop etc. in Truck No. HR-47A-4101 and later on came to know that the said truck had been looted in the area of Nangloi. He further deposed that on 12.07.2010, he was called at PS Nangloi where he identified his hardware items which were released to him on Superdari vide superdarinama Ex.PW3/A. PW3 identified the certified true copy of bill invoice and photocopy of builty payment slips. He had also seen photographs Ex.PB bearing serial no. 333, 340 & 352, on the basis of which he identified the hardware items released to him on superdari. He also produced certified true copy of Bill invoice no. 036, 034, 035 dated 21.05.2010 and builty no. 90637, 90638 & 90639 dated 21.05.2010, copies of which are Ex.PC (Colly).
FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 66 of 77
121. The prosecution has also examined PW4 Sh. Sandeep Garg who is the partner of a company by the name of Omni Steel India situated at Ghanipura, Jhajjar Road, Rohtak. He deposed that on 21.05.2010 he also sent hardware items i.e Screws to Aryavrat Transport Company in Truck No. HR-47A-4101 for sending the same to Ahamdabad and later on came to know that the said truck had been looted in the area of Nangloi. He further deposed that on 12.07.2010, he was called at PS Nangloi where he identified his hardware items and the same were released on Superdari vide superdarinama Ex.PW4/A. PW4 identified the hardware items in photographs Ex.PC (colly). PW4 also brought the original builty papers i.e. invoice no. 2060 dated 21.05.2010 for an amount of Rs.97,147/- Ex.PW4/A and builty no. 90623 dated 21.05.2010 Ex.PW4/B.
122. The prosecution has also examined PW5 Sh. Vipin Mittal who has been running a firm by the name of Indian Steels situated at 623, IDC, Hissar Road, Rohtak and is proprietor in the said firm. PW5 deposed that on 21.05.2010, he sent hardware items to Aryavrat Transport Company containing hinges, handle, L Drop etc. in Truck No. HR-47A-4101 and later on came to know that the said truck had been looted in the area of Nangloi. He further deposed that on 12.07.2010, he was called at PS Nangloi where he identified his hardware items which were released to him on Superdari vide superdarinama Ex.PW5/A. PW3 identified the certified true copy of bill invoice no. 86 dated 21.05.2010, photocopy of builty payment slip no. 90617. He had also seen photographs bearing serial no. 327, 329, 337, 341, 345, 347 & 349 Ex.PD FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 67 of 77 (colly), on the basis of which he identified the hardware items. He also produced certified true copy of Bill invoice and builty numbers Ex.PE (Colly).
123. During the course of trial, prosecution has also examined PW6 Sh. Ajay Kumar who was working as booking clerk in Arya Varat Transport company who stated that on 21.05.2010 Suzu Steel India Pvt. Ltd. India Steel, Omini Steel India, RAS Associates, RB Industries and B.K Plastic etc. booked their items for sending to Delhi and let on to other States and the articles were sent in Truck no. HR-47A-4101. He also brought the builty book and the copy of builties vide which all the articles were booked by said companies are Ex.PW6/A (colly).
124. The prosecution has also examined PW12 Mr. Karan who has deposed that he has been doing job in RAS Associates and on 21.05.2010 they loaded their goods relating to hardware items i.e. door fitting etc. through Aryavrat Transports Pvt. Ltd. in Truck No. HR 47A-4101 and later on they came to know that the goods have been robbed in the area of Nangloi. He further deposed that he had got some articles released which were recovered by the police. He also produced the case property in the court which he had taken on superdari and exhibited the case properties as Ex.PW12/P1 (colly) i.e. Sofa leg-3 (200 pieces), Magnet Catcher (100 pieces), three hinges cut (720 pieces), gate hook 5 (600 pieces), 3 hinges (240 pieces), 4 hinges (210 pieces), door latch 10 (60 pieces), door stopper (113 pieces), 3 hinges cut (360 pieces). He also exhibited the photographs of case properties as Ex.PW18/P5A1, Ex.PW18/P5A2 & Ex.PW18/P5A10.
125. Though the aforesaid witnesses were also cross examined FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 68 of 77 on behalf of defence but nothing favourable to the defence has come out. The aforesaid witnesses have exhibited the bills/builties vide which the goods were booked and they identified the case properties/goods which were recovered at the instance of accused persons.
Charges proved by the prosecution:-
126. All the accused persons were charged for the offence punishable u/s 365/395/397/34, 412 IPC as well as for offence punishable u/s 120B IPC. Further, accused Rafiq @ Babboo and Rajender @ Pappe (since deceased) were also charged for offence punishable u/s 171 IPC.
127. Section 397 IPC provides that if, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
128. Section 171 IPC provides that whoever, not belonging to a certain class of public servants, wears any garb or carries any token resembling any garb or token used by that class of public servants, with the intention that it may be believed, or with the knowledge that it is likely to be believed, that he belongs to that class of public servants, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred rupees, or with both.
129. Perusal of the testimony of PW8 Sh. Krishan Kumar reveals that during his testimony, PW8 has not been able to depose as to which of the accused persons were carrying FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 69 of 77 deadly weapons or used deadly weapons at the time of commission of offence. PW8 Sh. Krishan Kumar Gupta has not deposed that accused Rafiq @ Babboo and Rajender @ Pappe were wearing Delhi Police uniform at the time of commission of offence and thus, the benefit of doubt must be given to all the accused persons for offence u/s 397/34 IPC and to accused Rafiq @ Babboo for offence punishable u/s 171 IPC. Now, so far as charge in respect of offence punishable u/s 120B IPC is concerned, it is not the case of prosecution nor any evidence to the effect has been led that the accused persons hatched a criminal conspiracy and pursuant to criminal conspiracy, they committed the offences in question. As already observed above, all the accused persons except accused Bajrangi were in fact present at the place of commission of offence, at the time of commission of offence and they all have committed the offence of dacoity and were actually present and aiding such commission of offence and thus, the benefit of doubt must be given to the accused persons in respect of charge for offence u/s 120B IPC.
130. However, the prosecution has been able to establish that accused persons namely Rajji Ahmed, Jagbir @ Jaggu, Mohd. Khalid and Rafiq @ Babboo alongwith accused Rajinder (since deceased) and Rajesh (since deceased) conjointly committed dacoity punishable u/s 395 IPC and they were present at the place of occurrence and were aiding such a commission of offence.
131. The accused persons have also been charged for the offence punishable u/s 365 IPC which provides that whoever kidnaps or abducts any person with intent to cause that person FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 70 of 77 to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 362 IPC defines the terms 'Abduction' as whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.
132. The accused persons namely Rajji Ahmed, Jagbir @ Jaggu, Mohd. Khalid and Rafiq @ Babboo have been charged for abducting the complainant Krishan Kumar Gupta who has been examined as PW8 who deposed in his testimony that the accused persons boarded the truck which was being driven by him and they gave beatings to him and to the driver Thambu Ram and the driver Thambu Ram was asked by the accused persons to lay upside down at the rear seat and one of the accused kept revolver on his tample and other accused persons put knife on the person of driver Thambu Ram and thereafter they all had taken their mobile and cash. PW8 further stated that one of the accused started the truck and drove it and after going at a distance of one kilometer and they took u-turn and proceeded towards Bahadurgarh and he further stated that his and driver's hands, legs and mouth were tied by the accused persons and thereafter the accused persons got both of them down at some isolated place where they were kept in the same position i.e. hands, legs and mouth were tied where other accused persons were already there who also gave beatings and thereafter 2-3 accused persons kept vigil over there and the accused persons drove the loaded truck to some unknown destination. During his testimony PW8 has identified the accused namely Rajinder (since decased), Rajesh (since FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 71 of 77 deceased), Rajji Ahmed, Jagbir @ Jaggu, Mohd. Khalid and Rafiq @ Babboo as the offenders who committed the alleged offence. The testimony of PW8 reveals that PW8 Krishan Kumar Gupta and the driver Thambu Ram were abducted by the accused persons with intent to cause them to be secretly and wrongfully confined. Though the defence witness DW1 Dev Singh has been examined on behalf of the accused Rafiq @ Babboo, however, the testimony DW1 is not reliable in view of the testimony of PW16 HC Surender Singh, PW18 HC Pradeep and PW21 ASI Harjeet who apprehended the accused persons including accused Rafiq @ Babboo on 30.05.2010 and thereafter the huge recovery of case property of the present case FIR was made at the instance of the accused persons. This Court has already observed that such a huge quantity of recovery of robbed articles at the instance of accused persons could not have been planted by the police upon the accused persons. Hence, the prosecution has also been able to establish that accused persons namely Rajinder (since deceased), Rajesh (since deceased), Rajji Ahmed, Jagbir @ Jaggu, Mohd. Khalid and Rafiq @ Babboo in furtherance of their common intention abducted PW8 Sh. Krishan Kumar Gupta and Thambu Ram with intent to wrongfully and secretly confine them and accused persons committed dacoity as defined u/s 391 IPC. Accordingly, the prosecution has been able to prove its case for offence punishable u/s 365/34 IPC and 395 IPC against accused persons namely Rajji Ahmed, Jagbir @ Jaggu, Mohd. Khalid and Rafiq @ Babboo.
133. So far as charge for offence punishable u/s 412 IPC is concerned against accused persons Rajji Ahmed, Jagbir @ FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 72 of 77 Jaggu, Mohd. Khalid and Rafiq @ Babboo, as discussed above, the prosecution has been able to establish that the aforesaid accused persons committed dacoity and pursuant to their disclosure statement, the said stolen/robbed articles have been recovered from their possession/instance. The law is well settled to the effect that court may presume existence of certain facts as defined under Section 114 of Indian Evidence Act. In the present case also, the dacoity took place on 22.05.2010 and recoveries of robbed articles were effected at the instance of accused persons on 30.05.2010 and the accused persons namely Rajji Ahmed, Jagbir @ Jaggu, Mohd. Khalid and Rafiq @ Babboo could not account for the recovery of robbed articles. Further, I find merit in the arguments raised by Ld Addl. PP for the State that such a huge recovery of articles at the instance of accused persons could not have been planted and this Court may safely come to the conclusion that the aforesaid accused persons are the dacoits who committed that dacoity in question. However, since the accused persons namely Rajji Ahmed, Jagbir @ Jaggu, Mohd. Khalid and Rafiq @ Babboo themselves are the offenders and the recovery of articles were made at the pointing out and at the instance of the accused persons, they cannot be convicted for the offence punishable u/s 412 IPC.
Incriminating evidence against accused Bajrangi S/o Bhola Nath:-
134. It is admitted case of the prosecution that accused Bajrangi S/o Bhola Nath was not present at the place of occurrence and was not aiding or abetting the actual offenders in any manner. Here it is relevant to note that as per the testimonies of FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 73 of 77 recovery witnesses, the accused persons namely Rajender (since deceased), Rajesh (since deceased), Rajji Ahmed, Jagbir @ Jaggu, Mohd. Khalid and Rafiq @ Babboo had disclosed that they had sold certain articles to accused Bajrangi Yadav and accordingly, at the instance of accused persons, police officials reached at the kabaadi shop of accused Bajrangi Yadav at A-16, Rajiv Nagar Extn. Accused Bajrangi was found present at the spot and he allegedly got recovered four kattas containing hardware articles and two cartons also containing hardware articles from under the charpai lying in his room at ground floor of his house and PW24 SI Ashwani Kumar had seized the said articles vide seizure memo Ex.PW18/B.
135. Here it is observed that though the prosecution has been able to establish that the said articles were recovered from the possession of accused Bajrangi but the prosecution has not been able to establish that accused Bajrangi Yadav had dishonestly received or retained the said stolen articles which is the foremost requirement for convicting him u/s 412 IPC. The prosecution could not prove that the accused Bajrangi who is a scrap dealer (kabaadi) by profession had the knowledge or reason to believe that the goods received/purchased by him were transferred by the commission of offence of dacoity. The prosecution has also not been able to establish that accused Bajrangi was known to accused persons and the prosecution has not placed on record the CDR of mobile phone of any of the accused persons to establish that accused Bajrangi Yadav was in contact with the other accused persons. In view of the aforesaid facts and circumstances, the benefit of doubt is given to accused Bajrangi and accordingly, accused Bajrangi is FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 74 of 77 acquitted for offence punishable u/s 412 IPC.
136. The accused Bajrangi has also been charged for the offence punishable u/s 365/395/397/34 IPC as well as for the offence punishable u/s 120B IPC. However, PW8 Sh. Krishan Kumar Gupta during his cross examination failed to identify accused Bajrangi as the offender and PW8 was also cross examined by Ld Addl. PP for the State regarding the identification of accused Bajrangi but PW8 did not support the case of the prosecution qua accused Bajrangi. In view of the evidence on record, the accused Bajrangi is entitled to be acquitted for the offences charged against him. FINAL CONCLUSIONS:
137. In the case of Sharad Birdhichand Sarda -vs- State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre-requisites before conviction should be recorded, which are as under:
The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established; The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
The circumstances should be of conclusive nature and tendency;
They should exclude every possible hypothesis except the one to be proved; and There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 75 of 77 with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
138. I may observe that there are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
139. The prosecution has proved the identity of accused persons namely Rajji Ahmed, Jagbir @ Jaggu, Mohd. Khalid and Rafiq @ Babboo, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. The prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by other evidences and the witness of the prosecution have been able to built up a continuous link.
140. In view of abovesaid facts and circumstances, I am of the considered opinion that the prosecution has been able to FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 76 of 77 establish its case for offence punishable u/s 365/34 IPC and Section 395 IPC against accused persons namely Rafiq @ Babboo, Rajji Ahmed, Jagbir @ Jaggu and Mohd. Khalid. Accordingly, accused persons namely Rafiq @ Babboo, Rajji Ahmed, Jagbir @ Jaggu and Mohd. Khalid are convicted for offence punishable under Section 365/34 IPC and for the offence punishable u/s 395 IPC. However, as discussed above, the accused Bajrangi is hereby acquitted for the offences charged against him.
141. Copy of this judgment be provided Dasti to both the sides free of cost.
Digitally signed(Passed & announced MANISH by MANISH
KHURANA
in open court today) KHURANA Date: 2023.04.18
16:24:54 +0530
(MANISH KHURANA)
Addl. Sessions Judge-04
West District, Tis Hazari Courts,
Delhi/18.04.2023
FIR No. 180/2010 State Vs. Rafiq @ Babboo & Ors PS Nangloi Page no. 77 of 77