Delhi District Court
Sc No. 58293/16; Fir No.226/08; Ps ... vs . Manesh @ Monu & Ors. Page No. 1 Of 52 on 29 August, 2019
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IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
SESSIONS CASE No.................................... 58293/2016
FIR No. 226/2008
PS Rohini
U/s: 392/397/411/34 IPC
State
Versus
1. Manesh @ Monu
S/o. Om Prakash
R/o. Village & PO Kidoli
Prahaladpur, Sonepat, Haryana
2. Anil @ Sunil @ Senior
S/o. Lichhman Singh
R/o. Village & PO Kidoli
Prahalapur, near Kharkhoda
District Sonepat, Haryana
3. Bijender
S/o. Ramphool
R/o. 440, Village Tikri Kalan, Delhi41
Also at :
H. No. 2, Nangloi, ExtensionI
Gali No. 3, near Lokesh Cinema, Delhi
4. Ramesh Chand
S/o. Sh. Inder Sen
R/o. H. No. 1256, Sector14
HUDA, Sonepat, Haryana
SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 1 of 52
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5. Jitesh Verma
S/o. Radhey Shyam
R/o. Bas Sitab Mohalla
House No. 6642, near Everest Cinema
Riwari, Haryana
6. Devender Kumar
S/o. Ram Dev Chander
R/o. 291, A10 Chawla Colony
HBC Extension, Sonepat, Haryana
7. Bhupender @ Bhuppi
S/o. Sh. Rajbir Singh
R/o. House No. 577, Village Auchandi
Delhi39
8. Vinod Jain
S/o. Sh. Madan Lal
R/o. C21, Prem Nagar, Atlas Road
Sonepat, Haryana
Date of initial institution : 25.02.2009
Recd. on transfer to this Court : 12.10.2018
Judgment reserved on : 28.08.2019
Judgment delivered on : 29.08.2019
ORDER/JUDGMENT: The accused persons namely Bijender,
Ramesh Chand, Jitesh Verma, Devender
Kumar and Vinod Jain stand acquitted of the
charge(s) u/S. 411 IPC, whereas the accused
Manesh @ Monu also stands acquitted of the
charge(s) u/S. 392/34 r/w 397 and 411 IPC,
further the accused Bhupender @ Bhuppi
also stand acquitted of the charge(s) u/S.
392/34 & 397 IPC by giving them the benefit of
doubt.
SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 2 of 52
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However, accused Sunil @ Anil @ Senior
@ Sonu stand convicted for the charge(s)
u/S. 392/34 read with 397 IPC.
JUDGMENT
1. Brief facts, as stated in the charge sheet are that on 15.04.2008 one Rakesh Singhal made a complaint to the police as under :
"That he was residing at B13/53, Sector 8 Ground Floor, Rohini and running a jewellery shop in the name of "Rohini Jewellers" at D13/20, Sector 8, Rohini, Delhi. On 15.04.2008, at about 8:30 pm, he along with his cousin brother Ankit and servant Mahesh were present at the showroom then three boys aged around 2530 years height 5'10" having strong, thin build and fair colour came there and asked them to keep mum.
They all took out their pistols and other person strong built clean shave put off his red colour bag on counter and third one strong built, brown hair stood on the gate. The person, who was carrying red colour bag picked out all the diamond and golden jewellery items and the first one asked him to hand over the cash, on which he took out Rs. 40,000/ from the cash box (galla) and handed over to him in fear SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 3 of 52 -4- on the pistol point.
Thereafter, all those three boys ran away on two wheeler, parked on the other side of the road and fired two shots in the air to show fear. He informed police on 100 number and stated that he could identify all the accused persons, if shown to him.
2. On the said statement, FIR u/S. 392/34 IPC was registered at PS Rohini and investigations were taken up by SI Jagdish Chander.
3. During investigations, SI Jagdish prepared the site plan, recorded the statement of witnesses and also prepared the sketch of suspects. On 06.07.2008, on the basis of secret information three persons were apprehended from main road Shamshan Ghat, Sector3, Rohini and a stolen Santro car no. DL4CS7118 (fake no. HR13B2285) in FIR No. 274/08, PS Saraswati Vihar and a stolen motorcycle no. DL6SY 0667 (fake no. HR13B2235) in FIR No. 75/08, PS Paschim Vihar were also recovered from their possession. Two .32 bore pistols along with two live cartridges each were also recovered from their possession.
4. The said accused persons namely Ashwani @ Sonu, Manesh @ Monu and Anil @ Sunil @ Senior disclosed about the commission of various heinous crimes in Delhi and NCR including the present case.
SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 4 of 52 -5- Accordingly, the said case was transferred to SOS, Crime Branch for the purpose of further investigations by the order of senior officers. The further investigations were handed over to SI Virender Singh, SOS/Crime Branch.
The said accused persons were arrested in this case, interrogated and their disclosure statements were also recorded. The accused Ashwani @ Sonu disclosed his involvement in the present case and that he had sold the robbed jewellery to different jewellers in Tikri Kalan, Palam, Delhi, Bahadur Garh and Sonepat. Accused Manesh @ Monu and Anil @ Sunil @ Senior further disclosed that they could recover the case property from their house in the village Kidoli, Sonepat Haryana.
On the pointing out and at the instance of the accused persons 7 goldsmiths namely Bijender, Abhishek Verma, Ramesh Chand, Vinod Jain, Pardeep Kumar, Jitesh Verma and Devender Kumar were arrested on 16.07.2008 and their disclosure statements were recorded. The stolen jewellery / case property recovered from possession of the said goldsmiths was taken into possession by the IO and sealed.
The accused persons Ashwani @ Sonu, Manesh @ Monu and Anil @ Sunil @ Senior refused to participate in the TIP proceedings before the Ld. MM. The TIP of the case property was got conducted, in which the witness had correctly identified the robbed jewellery articles.
SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 5 of 52 -6- After completion of investigations, charge sheet was filed against the accused persons Ashwani @ Sonu, Manesh @ Monu and Anil @ Sunil @ Senior u/S. 392/397/411/34 IPC and against accused persons Bijender, Abhishek Verma, Ramesh Chand, Vinod Jain, Pardeep Kumar, Jitesh Verma and Devender Kumar u/S. 411/34 IPC.
One of the accused Bhupender @ Bhuppi was avoiding his arrest and could not be arrested, regarding whom it was stated that supplementary charge sheet would be filed after his arrest.
5. On committal of the case to the Court of Sessions, vide detailed order dated 24.04.2010, charge(s) for offence(s) u/S. 392/34 & 397 IPC was framed against the accused persons Ashwini @ Sonu, Manesh @ Monu and Anil @ Sunil @ Senior whereas separate charge(s) for the offence(s) u/s 411 IPC were framed against accused persons Devender Kumar, Vinod Jain, Ashwani @ Sonu, Manesh @ Monu, Anil @ Sunil @ Senior, Ramesh Chand, Jitesh Verma, Bijender, Abhishek, Pradeep Kumar to which they pleaded not guilty and claimed trial.
Upon arrest of the accused Bhupinder @ Bhupi, vide order dated 03.08.2011, separate charge(s) for the offence(s) u/S. 392/34 & 397 IPC was also framed against accused Bhupinder @ Bhupi, to which he pleaded not guilty and claimed trial.
SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 6 of 52 -7-
6. Thereafter, prosecution in support of its case has examined 14 witnesses :
a) PW1 is complainant Rakesh Singhal, who has completely supported the prosecution story with regard to the robbery in his jewellery shop on 15.04.2008 and he has also identified the robbers namely Ashwani @ Sonu, Anil @ Sunil @ Senior and Manesh @ Monu. He also stated that the total looted jewellery was amounting to Rs. 39,69,213/. He also identified the recovered robbed articles Ex. P1 to P20.
b) PW2 is Ankit, another eye witness with regard to the said incident of robbery, who was also present in the said shop at the time of robbery. He has also supported the prosecution story and has corroborated the testimony of PW1.
c) PW3 is Vikas Singhal, who was running his own jewellery shop in Karol Bagh and he stated that on 02.04.2008, he sold jewellery to the tune of Rs 4,36,956/ to the customer Rakesh vide Bill Ex. PW1/E1.
d) PW4 is Gaurav Jindal, who was running his own jewellery shop and he stated that on 12.07.2007, 02.03.2008 and 12.04.2008, he sold gold and diamond jewellery to Rakesh vide Invoice Ex. PW1/E2 & E3 and E4. The said gold / diamond jewellery was to the tune of Rs. 3,00,718/, Rs. 39,223/ and Rs. 7,36,895/ respectively.
e) PW5 is HC Ranbir Singh, duty officer, who on the rukka sent by SI Jagdish on 15.04.2008 recorded the FIR of this case Ex. PW5/A.
f) PW6 is Saurab Gupta, who was running his own jewellery shop in SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 7 of 52 -8- Chandni Chowk and he stated that on 30.07.2007, 13.08.2007, 03.01.2008, 23.01.2008, 25.01.2008, 15.02.2008, 26.02.2008, 29.02.2008, 04.03.2008 and 15.03.2008, he had sold the gold jewellery to Rohini Jewellers and has proved the original record of the receipts already Ex. PW1/E5 to PW1/E14.
g) PW7 is Mahesh, who was working as watchman at the shop of PW1. He has also corroborated the factum of robbery on 15.04.2008 and the fact that four persons committed the robbery in the said jewellery shop, but he stated nothing about the identity of those robbers.
h) PW8 is Ct. Narender Kumar, who was posted at PS Rohini on 15.04.2008 and he along with SI Jagdish Chander on receipt of the call of robbery went to the shop of PW1, where SI Jagdish Chander recorded the statement of PW1 and gave rukka to him for registration of the FIR.
i) PW9 is SI Jagdish Chander, who along with PW8 Ct. Narender went to the spot on receipt of DD No. 78B with regard to the robbery in the shop of PW1, which was a jewellery shop in the name of Rohini Jewellers and he recorded the statement of the complainant PW1 as Ex. PW1/A, made endorsement thereon Ex. PW9/A and handed over the same to PW8 for registration of FIR and he also prepared the site plan and detailed list of robbed articles Ex. PW1/B.
j) PW10 is HC Mahavir Singh, who on 06.07.2008 was posted with SOS Crime Branch Sunlight Colony and on receipt of secret SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 8 of 52 -9- information SI Devender prepared a raiding party and they congregated at M2K Mall Rohini and thereafter accused Manesh @ Monu and Sunil @ Senior came in a santro car and were talking to each other. At about 7:30 pm, another boy came on motorbike, whose name was revealed as Ashwani @ Sonu. All the accused persons were directed to surrender but they started running and were apprehended. Search of all the accused persons was carried out, from them two pistols, stolen car and motorcycle were recovered. They were arrested. Their disclosure statements were recorded, which are Ex. PW10/A to Ex. PW10/C.
k) PW11 is ASI Ramesh Chand, the member of the Crime Team, who reached the spot and took the photographs of the spot and proved the negatives of the same as Ex. PW11/A1 to Ex. PW11/A7 and photographs as Ex. PW11/B1 to Ex. PW11/B7.
l) PW12 is ASI Jagdish, the MHC(M), who has proved the entries of the relevant case properties deposited with him.
m) PW13 is SI Narender, who deposed that on 06.07.2008, he arrested the accused Ashwani, Anil @ Sunil in case FIR No. 400/08 u/S. 411/474 IPC and 25 Arms Act. They disclosed their involvement in the present case. Their disclosure statements were recorded which are Ex. PW13/D, E and F. Before that he stated that he was part of the raiding party headed by SI Devender and on the information of secret informer, they arrested the accused persons namely Ashwani @ Sonu (since expired and proceedings abated SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 9 of 52 -10- vide order dated 23.02.2011), Manesh @ Monu, Anil and their disclosure statements were recorded Ex. PW10/A to Ex. PW10/C. Thereafter, he informed the IO of this case SI Virender regarding the disclosure made by the accused persons, who collected the copy of disclosure statement from him. Thereafter, on 16.07.2008 during the investigations, the accused persons pointed out the place of robbery and thereafter, they pointed out towards the shop of jeweller Vijender, but nothing was recovered from his house on that day. Thereafter, accused persons lead them to the shop no. 11 of Pawan Jeweller at Bahadurgarh and they met accused Pradeep (since expired) in the said shop, and there accused Pradeep picked up two gold karas and stated that these were given to him by the said accused. The same were seized vide memo Ex. PW13/A. Thereafter, accused Ashwani lead them to his house in Sonepat, Haryana and from an iron box kept inside his house he picked up one pant and took out one gold ring, one pair ear ring diamond type, one neelkanth and one kara from the right side pocket of the said pant, which were seized.
Thereafter, accused Manesh lead to his house in Sonepat, Haryana and from inside the iron box kept inside his house he picked up one leather jacket and taken out one gold ring and four pair ear ring (gold/diamond) from the inner side pocket of said jacket, which were seized.
Thereafter, accused Anil @ Sunil, lead to his house in Sonepat, SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 10 of 52 -11- Haryana and from inside the iron box kept inside his house he picked up one polythene and taken out two gold rings, pair ear ring, one kara and one mangalsutra having black moti from the said polythene, which were seized.
Thereafter, all the aforesaid accused persons lead them to Sonepat, Haryana and pointed out towards the shop of Krishna Jewellers situated at Subhash Park, Palika Bazar, Sonepat, Haryana, where they met accused Ramesh Chand, who had picked up one bracelet and one kara and stated to them that the said articles were sold to him by accused Ashwini @ Sonu at the half market price, which were seized.
Thereafter, all the aforesaid accused persons lead them to Sonepat, Haryana and pointed out towards the shop of Krishna Jewellers situated at Subhash Park, Palika Bazar, Sonepat, Haryana, where they met accused Ramesh Chand, who had picked up one bracelet and one kara and stated to them that the said articles were sold to him by accused Ashwini @ Sonu at the half market price, which were seized.
Thereafter, all the aforesaid accused persons lead them to Sonepat, Haryana and pointed out towards the shop of Bishan Jewellers situated at Subhash Park, Palika Bazar, Sonepat, Haryana, where they met accused Abhishek Verma (since expired), who had picked up three rings (gold/diamond) and stated to them that the said SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 11 of 52 -12- articles were sold to him by accused Ashwini @ Sonu at the half market price, which were seized.
Thereafter, all the aforesaid accused persons lead them and pointed out towards the shop of Nicky Jewellers situated at Subhash Park, Palika Bazar, Sonepat, Haryana, where they met accused Vinod Jain, who had picked up one gold ring and stated to them that the said articles were sold to him by accused Ashwini @ Sonu at the half market price, which were seized.
Thereafter, all the aforesaid accused persons lead them to Palam, Delhi and pointed out towards the shop of Hemant Jewellers situated at RZH707, Raj NagarII, Palam, New Delhi, where they met accused Jitesh Verma, who had picked up four gold karas and three ear tops and stated to them that the said articles were sold to him by accused Ashwini @ Sonu at the half market price, which were seized.
Thereafter on 19.07.2008, they visited the shop of Bijender, situated at the house of Ashok Tikri Kalan, Delhi and the accused Bijender had picked up three bracelets having diamonds and stated to them that the said articles were sold to him by accused Ashwani @ Sonu at the half market price, which were seized. He also identified the recovered case property as Ex. P1 to Ex. P20.
n) PW20 is Inspector Virender Singh, who was also the part of the raiding party posted with SOS Crime Branch and which was headed SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 12 of 52 -13- by SI Devender and who apprehended the accused persons and also disclosed their involvement in the present case before being arrested in FIR No. 400/08. They also refused to participate in TIP after they were produced before the concerned court.
During their PC remand, they made disclosure statement, and pursuant to their disclosure statement, the recovery of the robbed jewelleries were recovered from the jewellers, which were seized and he deposed about the investigations, as were carried out by him in this case.
7. Vide order dated 22.03.2019, the prosecution evidence was closed.
8. Thereafter, statements of accused persons namely Sunil @ Anil, Bijender, Jitesh Verma, Devender Kumar, Ramesh Chand, Vinod Jain, Bhupender and Manesh @ Monu u/s 313 Cr.P.C. were recorded separately, in which the entire incriminating evidence appearing against the accused persons was put to them, in which the defence of the accused persons was that they have been falsely implicated in this case. However, they chose not to lead evidence in their defence. It is clarified here that accused Abhishek, Pradeep Kumar and Ashwani @ Sonu had expired during the trial and proceedings against them stood abated.
SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 13 of 52 -14-
9. I have heard Sh. Harvinder Nar, Ld. Addl. PP for the State, Sh.
Rakesh Beniwal, Ld. Counsel for accused Davender Kumar and Vinod Jain, Sh. Rajbir Malik, Ld. Counsel for accused Bhupinder, Sh. D. V. Goel, Ld. Counsel for accused Bijender, Sh. Yogesh Pandey, ld. Counsel for accused Manesh @ Monu and Sunil @ Anil and Ms. Suman Jain, Ld. Counsel for accused Ramesh Chand and accused Jitesh Verma.
10. Ld. Counsels for the accused Bhupender @ Bhuppi Sh. Rajbir Malik has argued that in the present case both the material witnesses PW1 i.e. the complainant Rakesh Singhal and PW2 Ankit have turned hostile with regard to the presence of the said accused on the date of robbery i.e. on 15.04.2008 at the jewellery shop of PW1. They have both also turned hostile with regard to the identity of the said accused.
It was further argued that even the IO of this case PW14 Inspector Virender Singh has admitted in his crossexamination that one Bhupender @ Bhupi was wanted in the present case and he had also obtained coercive process against Bhupender @ Bhuppi and it was also correct that accused Bhupender, who is facing trial in this case is not the son of Om Prakash and in fact he is the son of Rajbir. Therefore, he submits that even the IO could not establish the identity of the accused being involved in the present case, therefore, he is liable to be acquitted.
SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 14 of 52 -15- On the other hand, Ld Counsel(s) for the jewellers Vijender, Umesh Chand, Hitesh Verma, Devender Kumar, Vinod Jain have argued that all the said jewellers have been falsely implicated in this case by the investigating officer, as there are two disclosure statements of the accused persons namely Manesh @ Monu, Sunil @ Anil and Ashwani @ Sonu, one dated 07.07.2008 and another supplementary disclosure statement dated 16.07.2008. In none of those disclosure statements the accused persons disclosed the name of the alleged jewellers to whom they had sold the robbed jewellery.
Therefore, the IO had misused the said disclosure statements and had shown false recovery. They have also argued that it has been admitted by the IO in his crossexamination that no public witness was joined in the said recovery proceedings nor the said recovery proceedings were recorded in the mobile phones carried by the police officials.
They have further argued that the IO and other material recovery witnesses admitted that they have not checked, if there was any specific mark of identification put by the complainant on the said jewellery articles and further the said jewellery articles could be easily purchased from the open market.
They further submitted that in the list of robbed articles provided to them by the complainant, neither the design nor any specific mark of identification nor any weight of the robbed articles were mentioned, SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 15 of 52 -16- therefore, they submit that the IO had filled up a blank cheque in the shape of disclosure statements by filling up the name of the accused jewellers, therefore, they submit that the said recoveries are highly doubtful, therefore, the accused persons are liable to be acquitted.
On the other hand, Ld. Amicus Sh. Yogesh Pandey for the accused Manesh @ Monu has argued that the identity of the said accused is highly doubtful, as even PW1 and PW2 have stated in their examination in chief that the said accused was present outside the jewellery shop at the time of robbery and the other three accused persons namely Ashwani @ Sonu, Anil @ Sunil and Bhupender @ Bhuppi went inside the shop and used deadly weapons.
He has further argued that in the crossexamination, both the material witnesses have admitted that the said accused had not entered into the shop and at the time of the occurrence many public persons i.e. the customers of different shop used to remain present in Sector8, Rohini Market in the evening hours and that they had seen him standing outside their shop few feet away through glass door and he was also not doing any unnatural activity. Therefore, he has argued that a innocent bystander has been falsely implicated in this case on the basis of mere suspicion.
Regarding the identity part, he submits that the present accused was arrested after three months of the incident. It is claimed by the prosecution that even the sketches of the accused persons were prepared at the instance of PW1 and PW2 giving the prior description SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 16 of 52 -17- of the accused persons, but the same have not been filed on the record. He further submits that after three months their photographs were taken and shown at the time of arrest on 06.06.2008 in the FIR No. 400/2008 and were shown to PW1 and PW2 and thereafter, they were taken to the shop of the complainant and were directly confronted with PW1 and PW2, therefore, such kind of identification is no identification in the eyes of law and there is grave doubt in his identity, the benefit of which should be given to him.
Regarding the recovery of the jewellery articles at the instance of of accused Manesh @ Monu, he submits that in the initial disclosure statement dated 07.07.2008 Ex. PW14/B, he had not stated that he could recover the robbed jewellery articles from his house, whereas in his supplementary disclosure statement recorded on 16.07.2008, he stated that he could recover the robbed articles which fell into his share from his house vide supplementary disclosure statement Ex. PW14/D and pursuant thereto he also got recovered certain jewellery articles from his house. He submits that in the said period when his family members were aware that he had been arrested, they would have removed jewellery articles from his house and it is also not clear why would accused suddenly after 9 days would reveal something more to incriminate him. He further submits that the said recovery is highly doubtful and therefore, the accused is liable to be acquitted by giving him the benefit of doubt.
SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 17 of 52 -18-
11. It would be pertinent to mention here that the name of accused Sunil @ Anil has also been mentioned as Sunil @ Sonu during crossing examination of PW1 by Ld. Counsel Sh. Rajnish Antil on 19.09.2011 and also during the crossexamination by the same counsel as Sunil @ Sonu during the crossexamination of PW2 on 02.02.2012, whereas he is one of the same person, regarding which there is no dispute.
Regarding the accused Sunil @ Anil, it has been argued by the Ld. Counsel that no doubt PW1 and PW2 have supported the prosecution story that the said accused had actively participated in the robbery and had also used pistol, but he submits that the entire story is concocted, as the alleged bills of purchase of jewellery produced by PW1 in the court Ex. PW1/E1 to E15 are forged and fabricated. It was also argued that there are lot of contradictions and improvements in the testimonies of PW1 and PW2 in their cross examination, which shows that their testimonies cannot be relied upon.
It was also argued that no call at 100 number was made to show that the robbery actually took place with the complainant party. It was also stated that though the accused had refused TIP, the same cannot be taken against him as he had no other way, as his photographs had already been taken at the time of his arrest in FIR No. 400/08 on 06.07.2008 and had been shown to PW1 and PW2 and thereafter, the present accused was directly shown to PW1 and SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 18 of 52 -19- PW2 while taking him to the shop of the complainant. Therefore, it is stated that there is a serious flaw in the prosecution story with regard to identification procedure, which is not most unfair.
It was further argued that the watchman PW7 Mahesh has not stated anything with regard to specific role of any of the accused persons and their identities, though, he was the best witness to do so.
Regarding the recovery of the jewellery articles at the instance of of accused Sunil @ Anil, he submits that in the initial disclosure statement dated 07.07.2008 Ex. PW14/C, he had not stated that he could recover the robbed jewellery articles from his house, whereas in his supplementary disclosure statement recorded on 16.07.2008, he stated that he could recover the robbed articles which fell into his share from his house vide supplementary disclosure statement Ex. PW14/E and pursuant thereto he also got recovered certain jewellery articles from his house.
He submits that in the said period when his family members were aware that he had been arrested, they would have removed jewellery articles from his house and it is also not clear, why would this accused suddenly after 9 days would reveal something more to incriminate him. He further submits that the said recovery is highly doubtful and therefore, the accused is liable to be acquitted by giving him the benefit of doubt.
SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 19 of 52 -20-
12. On the other hand, Ld. Addl. PP for the state has argued that the prosecution has been able to establish its case against the jeweller accused persons beyond any shadow of doubt, as the recovery of the robbed jewellery articles belonging to the complainant PW1 was made from their respective shops at the instance of accused persons pursuant to their disclosure statement(s) and same is admissible recovery u/S. 27 of the Evidence Act.
He further submits that the said jewellery articles were duly identified by the complainant in the TIP proceedings before Ld. MM which took place on 22.08.2008. Same was admitted by the accused persons on 01.05.2012 as Ex. P2. Therefore, this fact that the said robbed articles belonged to the complainant has been clearly proved.
Regarding the non joining of the public witnesses, he has argued that the apathy of the public persons in joining any recovery proceedings or any police proceedings is well known. Therefore, he submits that all the jeweller accused persons are liable to be convicted u/S. 411 IPC.
Regarding the accused Manesh @ Monu, he has argued that the identity of this accused has been clearly established by the testimony of PW1 and PW2 and the recovery of robbed articles form his house has also been proved by the testimonies of PW13 SI Narender and IO PW14 Inspector Virender pursuant to his disclosure statement, therefore, he submits that the accused is liable to be convicted for the offence(s), for which he has been charged.
SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 20 of 52 -21- Regarding the accused Sunil @ Anil @ Sonu, he has argued that the identity and the specific role of the said accused having used pistol at the time of robbery has been established by the direct testimonies of PW1 and PW2, who had also identified the said accused in the court by pointing out towards him, as also his specific role that he had pointed out the pistol towards their servant and in this regard the testimony of PW1 and PW2 corroborate each other. He further submits that the accused persons have refused to undergo TIP vide Ex. P1 dated 10.07.2008 therefore, they were taken to the shop of complainant so there may not be any case of misidentification and present accused was duly identified by the complainant / PW1 and PW2.
He further submits that the description of all the accused persons were mentioned in the complaint itself Ex. PW1/A along with their age and height and other bodily features, therefore, it cannot be said it was a case of misidentification.
Regarding the recovery aspect, he has argued that the accused persons were initially arrested on 07.07.2008 in this case and only on through investigations, they revealed the place(s) where they had concealed the jewellery articles and the jewellers to whom they had sold the jewellery articles, therefore, he submits that the recording of supplementary disclosure statement is not illegal and the same is corroborated by confirmation of facts as recoveries have been made pursuant thereto from the house of the present accused as well as SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 21 of 52 -22- from different jewellers at his instance.
Therefore, he submits that prosecution has been able to prove the identity of the accused and his specific role and the fact that he had used the deadly weapon i.e. pistol and the recovery of robbed articles from his house at his instance and different jewellers which were duly identified by the complainant leads only to one inference i.e. the guilt of the accused, therefore he is liable to be convicted for the offence(s) for which he has been charged with.
13. I have gone through the rival contentions.
14. PW1 Rakesh Singhal in his testimonial deposition in the court, in his examinationinchief recorded on 23.07.2010, as also further on 18.09.2010 as well on 19.09.2011 has deposed as under :
I am residing at the above said address along with my family from last 10 years. I am a jeweller. I have been running my jewellery shop with the name of Rohini Jewellers at D13/20, Ground Floor, Sector8, Rohini, Delhi. It is a partnership business and I and my uncle / Tau Ji Vijay Singhal are the partners of aforesaid jewellery shop.
On 15.04.2008, at about 8:30 pm, I was present at my aforesaid jewellery shop alongwith my cousin Ankit Singhal S/o Sh. Vijay Singhal and my servant Mahesh. At that time, three persons came inside my aforesaid jewellery shop. They took out revolver in their hands from their belt of their pants and SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 22 of 52 -23- challenged us to keep mum. One out of three was having red colour cloth bag. One person went behind the iron almirah and started taking out the jewellery made of gold and diamond. One took his position in front of him and challenged him to deliver cash from my cash box. At that time, a sum of Rs. 40,000/ were inside the cash box. My servant was sitting by my right side. One person remained standing on my right side towards my servant. He challenged us if we will move then they kill us. One person put the jewellery articles including box from the iron almirah/shelf in the red colour bag. Worth value of the jewellery was approximately 40 Lakhs. They ran away alongwith the jewellery saying that if we will raise alarm, then they will kill us. During running they opened two fires in the air in front of our shop. They ran away on two motorcycles. They were four at the time of running. Fourth person remained standing outside their shop and I had seen him only once when he was running. A sum of Rs.40,000/ was also taken out by one person from my cash box. Witness put finger on the accused Ashwini @ Sonu present in the court saying that he is the same person whom aimed pistol at me and took out cash of sum of Rs. 40,000/ from my cash box. Witness put finger on the accused Anil @ Sunil @ Senior present in the court saying that he is the same who had taken position by my right side towards my servant with pistol. Person who had taken out jewelery from the Almirah is not present in the court. Witness put finger on accused Manesh @ Monu prsent in the court saying that he is the same person who remained standing outside my jewelery shop when three robbers were inside my SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 23 of 52 -24- shop. Witness correctly identified aforesaid three accused persons namely Ashwini @ Sonu, Anil @ Sunil @ Senior and Manesh @ Monu present in the court by their faces and by putting his finger towards them. I can identify to the accused who took jewelery from my Almirah if produced before me.
The details of robbed gold and diamond jeweleries are as under:
39 pieces of bangles made of gold, 18 bangles made of diamond, 18 pendals set made of diamond, some rings and ear tops made of gold etc. I had chased the robbers upto ½ KM. Then I informed to the police at 100 number about the incident. Thereafter, I returned to my aforesaid shop. Within 15 minutes, police officials from PCR and local police came as firing incident had also taken place in front of my shop. I narrated the whole incident to the police at the spot. My statement was recorded. Same is Ex. PW1/A which bears my signature at point A. I had pointed out the particular place from where the robbers had committed robbery. Police officials had lifted some finger prints from the iron almirah and empty jewellery box. Police remained at the spot till 12 night. No other statement of witness was recorded in my presence by the police. Police had interrogated my brother Ankit and my servant Mahesh before leaving the spot. After three days of registration of FIR I had handed over one list of looted gold and diamond jewelery on two letter pads of our shop which are Ex. PW1/B and Ex. PW1/C respectively, both bears my signature at point A and seal of Rohini Jeweler at point B. The total value of looted SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 24 of 52 -25- jewelery was Rs.39,69,213/. I had also produced photocopies of bill regarding ownership of aforesaid jewelery. I had handed over photocopies of bills related ownership of looted jewelery to the police which are mark X1 to X14. I had also handed over photocopy of quantitative details of stock of my shop dated 31.03.2008 to the police same is Mark X15.
Crime Branch officials had told to us that some of the jewelery looted from my shop has been recovered after about three months from the incident. I had appeared before court after about 3½ months from the incident. There I had identified my looted gold and diamond jewelery during TIP. The same jewelery articles which had been identified by me are in my possession on Superdari from the court order. I can produce the case property.
Today, I have not brought the case property as the same has not been summoned. I had also put my signature on seizure memo Ex. PW1/D at point A. This memo has been prepared when I had delivered the photocopy of the bill to the police officials. After three months from the incident, I and my brother Ankit were coming to open the shop at about 9:00 am, crime branch police officials were standing in front of my shop alongwith crime team police officials and I identified them before the police. They were same persons who had been identified by me before the court today.
Today I have brought original bill pertaining to jewellery which had been robbed from my jewellery shop. Photostat of jwellery bills which had been marked as Mark X1 to Mark X15 on previous date. Same are being compared with the original.
SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 25 of 52 -26- Photostat aforesaid jewellery bill are as per original bills and are Ex. PW1/E1 to PW1/E15 (O.S.R.). Today I have brought case property of this case being a Superdar which had been taken by me on Superdari. At this stage six churies (Gold), one gold chain, three gents ring (gold), six rings (gold) twenty tops (gold), five bracelets (gold), five necklace sets (gold) & two gold bangles having diamond are shown to the witness before Court. On same day aforesaid jwellary and diamond jwellary items wintess submits that it is the same jwellary which had been taken by me on superdari and which had been identified by me during judicail TIP & these gold & diamond jwellary items are the part jwellary of looted jwellary from my shop. Weight of the each aforesaid jwellary item is mentioned in list Ex. PW1/F which run up to two pages and bearing my signature at point A & B. The list is being tendered on filed today. The jwellary items six churies (Gold) Ex. P1 to P6, one gold chain - P7, three gents ring (gold) - P8, P9 & P10, six rings gold
- P11, P12, P13, P14, P15 & P16, twenty tops (gold)
- P17 (1 to 20), five bracelates (gold) - P 18 (1 to 5), five necklace sets (gold) - P19 (1 to 5 collectively) & two gold bengal having diamond - P20 (1 to 2).
Case property seen & returned.
I had deposed in the present case before this Hon'ble Court on 23710 & 18910. At this stage, the attention of this witness drawn towards his statement recorded in this court on the above mentioned dates and after going through the above mentioned statement witness states that I adopt the same toto. I can identify the accused, who took jewellery from my almirah along with his associates SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 26 of 52 -27- and was putting inside the bag inside my jewellery shop. The person, who was putting jewellery articles in the bag along with his associates form the almirah at my jewellery is not present in the court today.
At this stage, the attention of the witness is drawn specifically towards the accused Bhupinder @ Bhuppi & after seeing him witness states that he is not the same person, who was taking out the jewellery items from the almirah and were putting into the bag along with his associates in my jewellery shop in my presence at the time of incident i.e. on 15408 at about 8:30 pm. Accused Bhupinder @ Bhuppi was not brought to my above mentioned jewellery shop after his arrest by the police nor he pointed out the place of occurrence i.e. my jewellery shop in my presence.
15. PW2 Ankit who was also present at the jewellery shop at the time of the incident has also totally corroborated the version of PW1 regarding the time, place as well as the manner of the occurrence as also the identity of the accused robbers and specifically pointed out the role of accused Anil @ Sunil @ Senior and also that of Ashwani @ Sonu (since expired) and that of accused Manesh @ Monu.
They have both deposed that the accused Ashwani @ Sonu had used pistol in the robbery as also the accused Anil @ Sunil @ Senior who had also used the pistol at the time of robbery, whereas the accused Manesh @ Monu remained outside the shop. However, both of them turned hostile with regard to the role and identity of SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 27 of 52 -28- Bhupender @ Bhuppi and did not identify him as the robber, as per the initial prosecution story.
16. During the crossexamination of PW1, though there were certain improvements made by him viz a viz his earlier statement u/S. 161 CrPC, which were duly confronted to the said witness by the Ld. Defence counsel of accused Sunil @ Anil @ Sonu. However, the same does not in any way diminish the probative force of his testimonial deposition.
Rather, in his crossexamination the witness clarified that none of the accused persons were wearing helmet at the time of incident. He also admitted that there were number of shops adjacent to his shop but no public person gathered at his shop at the time of the incident. He also stated that Sunil @ Anil @ Sonu was brought to his showroom by the police after three months of the incident.
17. In the crossexamination carried out by the other accused Manesh @ Monu, he admitted that the said accused did not enter into his shop and he also stated that it is correct that many public persons i.e. customers of different shops used to remain present in Sector8, Rohini market during the evening hours i.e. on or about 8:00 pm. He further stated as under :
It is wrong to suggest that except accused Manesh, many other public persons were also present at in SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 28 of 52 -29- front of my shop. On the right side of my shop, there is a shop of Shivam Cards and on the left side, there is a shop of Navdeep Jewellers. I had not noticed as to how many customers were present inside or at in front of said shops, at the time of occurrence. Accused Manesh was standing 4 to 5 feet away from my shop and I had seen him through the glass door. I had not noticed accused Manesh doing any unnatural activity besides that he was only standing there. No CCTV cameras were installed either at my shop or at nearby shop. It is correct that my shop being a jewellery shop was having many lights inside my shop and lights installed outside my shop. It is correct that due to the lights installed in my shop, there is a dazzling effect outside the shop."
18. Similarly, PW2 Ankit was also crossexamined on behalf of accused Sunil @ Anil @ Sonu. In his crossexamination he also clarified that none of the accused persons were wearing helmet and were having muffled faces at the time of incident. Regarding the accused Manesh @ Monu, he in his crossexamination has stated as under :
On the right side of my shop, there is a shop of Shivam Cards and on the left side, there is a shop of Navdeep Jewellers. I had not noticed as to how many customers were present inside or at in front of said shops, at the time of occurrence. Accused Manesh was standing one feet away from our shop and I had seen him through the glass door. I had not noticed accused Manesh doing any unnatural activity besides that he was only standing there.
SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 29 of 52 -30- No CCTV cameras were installed either at our shop or at nearby shop. I do not remember today, if any CCTVs were installed in the market area at that time. It is correct that our shop being a jewellery shop was having many lights inside our shop and lights installed outside our shop. It is correct that due to the lights installed in our shop, there is a dazzling effect outside the shop. So far as I remember today, accused Manesh was wearing jeans and shirt at that time, but I cannot tell the colour of the said clothes. I had stated to IO the description of accused Manesh as well as the wearing clothes of accused Manesh.
It is correct that when I visited the court for the first time for giving my deposition, I had met one police official of Crime Branch in civil clothes. It is correct that the said police official before recording my testimony, outside the court had pointed out accused Manesh to me and advised me to identify accused Manesh during my testimony before the court.
Surprisingly the other and one of the most material witness namely the watchman PW7 Mahesh has deposed nothing about the identity of the accused persons in his examinationinchief nor he stated about the specific role of any of the accused persons during the robbery. He has only corroborated the version of PW1 and PW2 with regard to the manner of the incident, thereby making the probative force of the prosecution story with regard to the time, place and the manner of the incident further stronger.
SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 30 of 52 -31- IDENTITY PART
19. With regard to the identification part, the proper identification of an accused, who is unknown to the victim is very important aspect in any criminal trial and most of the miscarriage of justice in the annals of legal history has taken place due to the misidentification by the eye witnesses during the trial and in this regard the following is the position of law in United States of America :
Beginning with ruling in 1967, the US Supreme Court set out a standard under the due process clause of the fourteenth amendment for reviewing eye witness identification evidence in Mason Vs. Braithwaite 423 US at 114. The court emphasized that reliability I the linchpin in determining the admissibility of identification testimony first the court instructed Judges to examine whether the identification procedures were unnecessarily suggestive. Second to assess whether an identification is reliable. Judges were instructed to examine following five factors :
a) The opportunity of the witness to view the criminal at the time of crime;
b) The witness's degree of attention;
SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 31 of 52 -32-
c) The accuracy of the witness prior description of the criminal;
d) The level of certainty demonstrated at the time of confrontation;
e) The time between the crime and the identification procedure.
These five factors were drawn from earlier judicial rulings and not from any scientific research.
Mason (supra) at P. 125 - 127
20. These tests as rule of prudence shall also hold good in Indian scenario though law in India and US is different, but the rational principles drawn from human behaviour, experience and conduct will equally apply here.
The misidentification or wrong identification has been the bane of many a criminal trial. 75% of persons wrongly convicted were later on found to be innocent all over the world and they had all been convicted on the basis of misidentification or wrong identification, based on wrong eye witness account, as human memory is fallible, it quickly fades away after the event or crime.
It is not replicative as human senses do not capture the particular incident as a photographic memory or in camera like picture. But the memory gets stored and later on retrieved in these three phases, SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 32 of 52 -33- there are chances of contamination of memory due to preconceived ideas and notions as also due to later on information received after the crime. The memory of human is reconstructive due to which it is error prone and fallible as number of features effect the same over a period of time.
21. In view of the above said tests laid down in the aforesaid judgment Braithwaite (supra) in the present case with regard to the first and second aspect qua the accused Manesh @ Monu, the said accused must have been seen by PW1 and PW2 from distance and that too a glass surface, which was installed in their shop and they also admitted that there was a dazzling effect due to the lights in their shop. They also admitted that he was not doing any unnatural activity.
Since they had been shown pistols by other accused persons, therefore, it is hard to imagine that they were having the same degree of attention or focus, as they were having with regard to the other accused Sunil @ Anil @ Sonu. No doubt, both of them have admitted in their crossexamination that none of the accused persons were wearing helmets, but at the same time the above fact cannot be glossed over.
22. With regard to the third aspect though in the initial complaint Ex. PW1/A, the complainant PW1 had mentioned the description of the SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 33 of 52 -34- accused persons as being between 25 to 30 years and other description regarding the colour and height. However, at the same time it is stated in the charge sheet that the police had prepared the sketches of the robbers immediately after the incident, but the same were never produced in the court for matching / comparing with the identities of the accused persons.
With regard to the fourth aspect, PW1 and PW2 both categorically pointed towards the present accused with great confidence during their examination in chief, thereby demonstrating great level of confidence. At the same time, PW1 and PW2 have both admitted that this accused was not doing any unnatural activity and was standing outside their shop as were many other public persons / customers.
PW2 in his crossexamination even admitted that when he came to the court for the first time for giving deposition, he met one police official of crime branch in civil clothes who advised him to identify the said accused during his testimony in the court. However, in his re examination by the Ld. Addl. PP for the State on this aspect, he took a different stand, but it does show that he was suggested by the said police official to identity the accused in the court.
23. Further, there was a lapse of three months in the incident and the identification of the accused, as PW1 in his crossexamination has stated that the accused persons were brought to his shop three SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 34 of 52 -35- months after the incident.
As there was a long gap of three months and since the accused was directly taken to the shop of PW1 and PW2 who would have been asked to identify the accused, without testing his powers of observation, therefore, the said procedure can be said to be suggestive i.e. to say that there was no independent identification by the PW1 and PW2 qua this accused and rather he was suggested by the investigation agency that this was the accused and therefore, they identified the accused as the one who committed the offence in question, whereas the prosecution should have relied upon the preceptive powers of the witnesses for establishing the identity of this accused beyond shadow of doubt.
24. In these circumstances, TIP refusal of the accused Manesh @ Monu Ex. PX1 cannot be said to be unnatural. Therefore, the identity of the accused Manesh @ Monu has not been strongly established. There are more chances of error in the said identification procedure i.e. to say that there are more chances of misidentification, than proper and conclusive identification.
25. With regard to the other accused Anil @ Sunil @ Sonu, the position is different, as he had went inside the shop of PW1 and PW2 and had also used a pistol for committing robbery. Therefore, both PW1 and PW2 had opportunity to view the said criminal from very SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 35 of 52 -36- close distance. The degree of attention of the said witnesses can be said to be much more focused, as they were shown pistol and were told to remain mum and were also threatened, while accused pointed out pistol during the said robbery, while the other accused persons were gathering the jewellery and cash, therefore, they had clear cut opportunity to see the face of the said accused, from very close distance.
In their crossexamination they had clarified that none of the robbers were wearing helmets, therefore, they had the clear cut opportunity to see their faces, with regard to the prior description the same has been mentioned in the complaint Ex. PW1/A and with regard to the level of certainty, both PW1 and PW2 were very categorical in their examinationinchief by pointing out towards the said the accused as the person who had used the pistol at the time of the incident.
26. Regarding the lag / gap of three months in identification after the incident, no doubt the investigating agency instead of taking the present accused to the shop of PW1 and PW2 after his arrest and refusal of TIP should have resorted to identification by photo array i.e. they could have shown the photographs of the accused persons by mixing it with photographs of similar looking suspects or persons, then they should have asked PW1 and PW2 to identify the actual culprit. But the same has not been done, though the said procedure SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 36 of 52 -37- is suggestive, but it can only be said to be a procedure flaw on the part of the investigating agency, which does not go to the root of the identification procedure as a whole thereby vitiating it.
27. As there was no other alternative available with the investigating agency to make it sure, it was the same accused who had committed the robbery after refusal of his TIP Ex. PX1. Taking the above discussion as a whole, though there are slight hiccups in the prosecution case with regard to the identification of this accused, but as a whole, it is quite satisfactory and has been proved beyond reasonable doubt, as the prosecution has substantially ticked all the boxes and the criteria laid down in the above judgment Mason (supra).
RECOVERIES
28. With regard to the recovery aspect, the prosecution has relied upon the testimony of PW14, who in his examinationinchief has deposed as under :
"........SI Devender prepared the rukka and HC Mahabir went to the police station, got the case FIR No. 400/2008 registered and returned to the spot and handed over the copy of FIR and original endorsement to SI Narender.
The investigation of the present case was already marked to me. SI Narender had informed me about the arrest of aforesaid accused persons and also SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 37 of 52 -38- briefed me the aforesaid facts and also produced the memos of case FIR No. 400/2008 including the disclosure statements made by the aforesaid accused persons. On 07.07.2008, I had effected the arrest of accused Ashwini @ Sonu vide arrest memo already Ex. PW13/A, arrest of accused Anil @ Sunil and arrest of accused Manish, who are present in the court today (correctly identified by the witness) vide arrest memos already Ex. PW13/B and Ex. PW13/C respectively. I had also recorded the disclosure statement of accused Ashwini @ Sonu which is already Ex. PW14/A, of accused Manish already Ex. PW14/B and of accused Anil already Ex. PW14/C, all the aforesaid disclosure statement bears my signatures at point A. On the same day, i.e. on 07.07.2008, all the aforesaid three accused persons were produced before the concerned court in muffled face and I had obtained their seven days judicial remand. I had also moved an application for judicial TIP of all the three aforesaid accused persons.
On 09.07.2008, all the aforesaid three accused persons refused to participate in judicial TIP. I had obtained the copy of TIP proceedings. On 14.07.2008, I had obtained five days PC remand of all the aforesaid three accused persons.
During PC remand, on 16.07.2008, accused Manish made supplementary disclosure statement Ex.
PW14/D, accused Anil made supplementary disclosure statement Ex. PW14/E and accused Ashwini @ Sonu also made supplementary disclosure statement Ex. PW14/F, all the aforesaid memos bears my signatures at point A. SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 38 of 52 -39- Thereafter, on 16.07.2008, I had prepared a raiding party consisting of myself, SI Narender, ASI Virender and other staff. During investigation, accused Ashwini @ Sonu, Manish @ Monu and Anil @ Sunil had pointed out the place of occurrence i.e. the shop of Rohini Jewellers at Sector8. Thereafter, we i.e. me, SI Narender, ASI Virender, HC Mahabir, HC Rajbir, HC Mohan Lal, Ct. Sombir and HC Ajit were led by all the aforesaid accused persons at Village Tikri i.e. at the house of jeweller Bijender, where we met jeweller i.e. accused Bijender, who is present in the court today (correctly identified by the witness), but nothing was recovered from the house of accused Bijender on that day.
Thereafter, the aforesaid accused persons led us to the shop of Pawan Jeweller situated at Bahadurgarh i.e. shop no. 11, Railway Road, Palika Bazar. Accused Ashwini (since expired) had pointed out towards the said shop. We met accused Pradeep (since expired) in the said shop. Accused Pradeep had picked up two gold karas and stated that the said karas were delivered to him by accused Ashwini. I had kept the said karas in a plastic jar and after sealing the said jar with the seal of VSY containing both the said karas was seized vide seizure memo Ex. PW13/A1 which bears my signature at point A. I had also prepared the pointing out memo which is exhibited as Ex. PW13/B1 bears my signature at point X. Thereafter, accused Ashwini led us to his house situated at VPO Kidoli, Prahladpur, Sonepat, Haryana and from inside the iron box kept in the said house, he picked up one pant and taken out one gold ring, one pair ear ring diamond type, one Neelkanth and one kara from the right side pocket of said pant. I had SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 39 of 52 -40- kept the said jewellery articles in a plastic jar and after sealing the said jar with the seal of VSY containing the said jewellery was seized vide seizure memo Ex. PW13/C1 which bears my signature at point X. Thereafter, accused Manish led us to his house situated at VPO Kidoli, Prahladpur, Sonepat, Haryana and from inside the iron box kept in the said house, he picked up one leather jacket and taken out one gold ring and four pair ear ring (gold/diamond) from the inner side pocket of said jacket. I had kept the said jewellery articles in a plastic jar and after sealing the said jar with the seal of VSY containing the said jewellery was seized vide seizure memo Ex. PW13/D1 which bears my signature at point X. Thereafter, accused Anil @ Sunil led us to his house situated at VPO Kidoli, Prahladpur, Sonepat, Haryana and from inside the iron box kept in the said house, he picked up one polythene and taken out two gold rings, pair ear ring, one kara and one Mangalsutra having black moti from the said polyethene. I had kept the said jewellery articles in a plastic jar and after sealing the said jar with the seal of VSY containing the said jewellery was seized vide seizure memo Ex. PW13/E1 which bears my signature at point X. Thereafter, all the aforesaid accused persons led us to Sonepat, Haryana and pointed out towards the shop of Devram Jewellers situated at Gita Bhawan Chowk, Sonepat, Haryana, where we met accused Devender Kumar, who is present in the court today (correctly identified by the witness). Accused Devender had picked up four set necklaces and eight pieces of tops and stated to us that the said articles SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 40 of 52 -41- were sold to him by accused Ashwini @ Sonu at the half market price. I had kept the said jewellery articles in a plastic jar and after sealing the said jar with the seal of VSY containing the said jewellery was seized vide seizure memo Ex. PW13/F1 which bears my signature at point X. Thereafter, all the aforesaid accused persons led us to Sonepat, Haryana and pointed out towards the shop of Krishna Jewellers situated at Subhash Park, Palika Bazar, Sonepat, Haryana, where we met accused Ramesh Chand, who is present in the court today (correctly identified by the witness). Accused Ramesh Chand had picked up one bracelet and one kara and stated to us that the said articles were sold to him by accused Ashwini @ Sonu at the half market price. I had kept the said jewellery articles in a plastic jar and after sealing the said jar with the seal of VSY containing the said jewellery was seized vide seizure memo Ex. PW13/G1 which bears my signature at point X. Thereafter, all the aforesaid accused persons led us to Sonepat, Haryana and pointed out towards the shop of Bishan Jewellers situated at Subhash Park, Palika Bazar, Sonepat, Haryana, where we met accused Abhishek Verma (since expired). Accused Abhishek Verma had picked up three rings (gold/diamond) and stated to us that the said articles were sold to him by accused Ashwini @ Sonu at the half market price. I had kept the said jewellery articles in a plastic jar and after sealing the said jar with the seal of VSY containing the said jewellery was seized vide seizure memo Ex. PW13/H1 which bears my signature at point X. SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 41 of 52 -42- Thereafter, all the aforesaid accused persons led us and pointed out towards the shop of Nicky Jewellers situated at Subhash Park, Palika Bazar, Sonepat, Haryana, where we met accused Vinod Jain, who is present in the court today (correctly identified by the witness). Accused Vinod Jain had picked up one gold ring and stated to us that the said articles were sold to him by accused Ashwini @ Sonu at the half market price. I had kept the said jewellery articles in a plastic jar and after sealing the said jar with the seal of VSY containing the said jewellery was seized vide seizure memo Ex. PW13/J1 which bears my signature at point X. Thereafter, all the aforesaid accused persons led us to Palam, Delhi and pointed out towards the shop of Hemant Jewellers situated at RZH707, Raj NagarII, Palam, New Delhi, where we met accused Jitesh Verma, who is present in the court today (correctly identified by the witness). Accused Jitesh Verma had picked up four gold karas and three ear tops and stated to us that the said articles were sold to him by accused Ashwini @ Sonu at the half market price. I had kept the said jewellery articles in a plastic jar and after sealing the said jar with the seal of VSY containing the said jewellery was seized vide seizure memo Ex. PW13/K1 which bears my signature at point X. I had effected the arrest of accused Devender vide arrest memo Ex. PW14/G, arrest of accused Vinod Ex. PW14/H, arrest of accused Bijender Ex. PW14/J, arrest of accused Jitesh Verma Ex. PW14/K, arrest of accused Ramesh Chand Ex. PW14/L, arrest of accused Pradeep Kumar Ex. PW14/M, arrest of accused Abhishek Verma Ex. PW14/N and also SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 42 of 52 -43- conducted their personal search and also recorded their disclosure statements.
Thereafter, we returned to the office of SOS at Sunlight Colony and I had recorded the statement of witnesses. Thereafter, I had deposited the said pulandas in the malkhana of PS Rohini.
Thereafter, on 19.07.2008, SI Narender had again joined the investigation of the present case with me and other staff. On that day, we had visited the shop of accused Bijender, who is present in the court today (correctly identified by the witness) i.e. the jewellery shop of accused Bijender situated at the house of Ashok, Tikri Kalan, Delhi, in the said shop, we met accused Bijender. Accused Bijender had picked up three bracelets having diamonds and stated to us that the said articles were sold to him by accused Ashwini @ Sonu at the half market price. I had kept the said jewellery articles in a plastic jar and after sealing the said jar with the seal of VSY containing the said jewellery was seized vide seizure memo Ex. PW13/L1 which bears my signature at point X. I had recorded statements of witnesses in this regard and deposited the case property in malkhana. During investigation, on 22.08.2008, I had moved an application for judicial of the aforesaid recovered case property. During judicial TIP conducted on 22.08.2008 by Ld. MM, complainant Sh. Rakesh Singhal has correctly identified the case property. I had collected the copy of said proceedings. I had also recorded the statement of witnesses including of MHC (M). I had also recorded the statement of other witnesses......"
SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 43 of 52 -44-
29. His testimony with regard to the recovery aspect is also corroborated by the testimony of PW13 SI Narender. With regard to the recovery qua accused Manesh @ Monu, there are two disclosure statements on record one dated 07.07.2008 Ex. PW14/B and another supplementary disclosure statement dated 16.07.2008 Ex. PW14/D. In the first disclosure statement the said accused disclosed that all the jewellery articles were handed over to accused Bhupender for selling the same through his mama to some jewellers in Sonepat and Panipat, who sold the same and distributed to him his share of Rs. 1,10,000/. He could get arrested the said Bhupender and also the jewellers.
Later on in supplementary disclosure statement, he stated that out of the robbed articles, he had also kept one ring and four ear rings gold and diamond which he had concealed in his house kept in iron box. The said recovery does not inspire any confidence, as PW13 and PW14 have admitted that the house of the accused persons was surrounded by other houses, but no public person was joined in the said recovery proceedings including the neighbourers. PW13 had also admitted that no videography or photography of the recovery proceedings was done and no documentary proof was collected that the said house belonged to accused Manesh @ Monu. They also admitted it as correct that there was no mark of identification on the gold ring and four pair of ear rings.
SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 44 of 52 -45-
30. In the initial complaint Ex. PW1/A, the complainant PW1 had mentioned that all their jewellery articles were having peculiar label 'face of lady'. However, it has nowhere come in the testimonies of recovery witnesses or that of PW1 or PW2 that the jewellery articles shown to them and identified by them and exhibited in the court were having the same tag / label. Further there is no reason to believe that the accused who for the first time did not disclose that he was also keeping robbed jewellery articles with him would speak in a parrot like manner on 16.07.2008 in his supplementary disclosure statement. In any case by that time, his family members would have come to know of his arrest and would have in all probability removed the tangible crime articles, so as to remove the proceeds of the crime.
Though, PW1 and PW2 identified the jewellery articles in the TIP of the case property before the Ld. MM Ex. PX2 dated 08.08.2008 and also in the court during their testimonial deposition, they may have done so, to mitigate their losses suffered in the said robbery. The TIP of the case property was also got done, but at the same time, the IO has also not explained as to from where and from which jewellery shop, he had obtained the jewellery articles, which were mixed with the recovered robbed articles during the TIP of the case property before Ld. MM on 22.08.2008. Therefore, the chances of him showing the said articles to the complainant prior to TIP of case property cannot be ruled out as well. Therefore, the recovery of the SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 45 of 52 -46- robbed articles from the possession of accused Manesh @ Monu becomes doubtful due to the above circumstances.
31. With regard to recovery qua accused Anil @ Sunil @ Sonu, he also made two disclosure statements one dated 07.07.2008 Ex. PW14/C and another supplementary disclosure statement Ex. PW14/E. He in his initial disclosure statement Ex. PW14/C also stated on the same lines as stated by accused Manesh @ Monu and as reproduced above. In his supplementary disclosure statement he disclosed that he also kept some of the robbed articles in iron box in his house.
As already discussed above, no public witness was joined in the recovery proceedings nor any neighbour nor the site plan of the place of recovery was prepared nor there was any specific mark of identification which is stated to be so in the initial complaint Ex. PW1/A. Further no videography of the said recovery proceedings was got done in any case there was sufficient time available with the family members of the accused to dispose off the said jewellery articles between the interregnum of 07.07.2008 and 16.07.2008. Therefore, the prosecution has failed to prove the recovery from accused Sunil @ Anil @ Sonu beyond doubt.
32. With regard to the recovery of jewellery from the jewellers, who have been arrayed as the accused persons in this case namely SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 46 of 52 -47- accused Bijender, Ramesh Chand, Jitesh Verma, Devender Kumar and Vinod Jain. As already discussed above, the complainant in his initial complaint Ex. PW1/A stated that their jewellery articles were having peculiar mark of identification / label i.e. the 'face of lady', however, PW14 in his crossexamination has deposed as under :
"It is correct that the articles which I claimed to have recovered from the shops of accused Devender and Vinod Jain could be easily availably in any jewellery shops or could be purchased from open market. There was no specific mark of identification on the said jewellery articles.....
It is correct that in the list of robbed articles provided me by the complainant neither any design nor any specific mark of identification nor any weight of robbed articles was mentioned....."
33. Same was the answer given by PW14 and PW13 with regard to the recovery from the other jewellers. They have also admitted besides that no videography or the photography of the recovery proceedings was got done nor any public witness of the surrounding shops or the nearby market persons were joined in those recovery proceedings. They have also admitted that such like jewellery articles are similar ones to the jewellery articles freely available in the market.
34. As already discussed above and even at the risk of repetition, it is SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 47 of 52 -48- pertinent to mentioned that the complainant in his initial complaint Ex. PW1/A stated that their jewellery articles were having peculiar mark of identification / label / tag i.e. the 'face of lady', however, no such thing was stated by the PW1 / complainant or PW2 at the time of identification of the case property in the court or by recovery witnesses PW13 and PW14.
35. As already discussed above, though PW1 identified the case properties in the TIP proceedings of the case property Ex. PX2 before the Ld. MM, as also the said tangibles during their production in the court, but he may have done so to mitigate the losses suffered by them due to the above robbery in his jewellery shop. Further, the IO failed to explain from where he got the jewellery articles, which were mixed up with the recovered robbed articles at the time of conducting the TIP before the MM. Neither the name of the said jewellers has been mentioned nor any receipt has been produced.
Further in none of the disclosure statement / supplementary disclosure statement of the accused Anil @ Sunil @ Sonu and that of Manesh @ Monu the specific name of the jewellers to whom the co accused Bhupender @ Bhuppi had sold the jewellery articles, has been mentioned. Therefore, the name of the jewellers was open to abuse as there was no specific person mentioned in those disclosure statement, as to whom the accused Bhupender had sold the jewellery articles.
SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 48 of 52 -49- Further, it is not clear that how the accused persons Sunil @ Anil @ Sonu and Manesh @ Monu came to know and told as to which particular jeweller having particular shop and address, how much jewellery has been sold and which particular one. Therefore, there are lot of doubts in the prosecution story with regard to the said recoveries. On such kind of ambivalent or probabilistic evidence, the accused jewellers Bijender, Ramesh Chand, Jitesh Verma, Devender Kumar and Vinod Jain cannot be convicted, as there are immense doubts in the same.
36. With regard to the accused Bhupender @ Bhuppi, nothing was recovered from his possession or at his instance and he was not identified by PW1 and PW2 in their testimonial deposition despite being declared hostile by the Ld. Addl. PP for the State. In fact IO PW14 in his crossexamination qua him stated as under :
"It is correct that I had filed the main chargesheet after conducting fair investigation and after satisfying myself. It is correct that as per column no. II of the main chargesheet, one Bhupender @ Bhupi is wanted in the present case. It is correct that I had obtained coercive processes i.e. NBWs and thereafter process u/s 82 Cr.P.C. in respect of accused Bhupender @ Bhupi. It is correct that accused Bhupender, who is facing trial in the present case is not the son of Sh. Om Prakash, in fact, he is son of Sh. Rajbir."
SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 49 of 52 -50-
37. In view of the above crossexamination of PW14, the IO himself is not clear about the identity of the present accused Bhupender @ Bhuppi, facing trial in the present case. Therefore, his identity has not been proved beyond doubts casting grave doubts thereupon.
TO SUM UP
38. In view of the above discussion, taking the probative force of the prosecution as a whole, it has failed to prove the identity of the accused Manesh @ Monu as well as recovery qua him. The prosecution has also failed to prove the recovery qua the accused Sunil @ Anil @ Senior @ Sonu. However, the prosecution has been able to prove his presence, participation, as also his identity with regard to armed robbery, which took place in the shop of the complainant on 15.04.2008 beyond any shadow of reasonable doubt, further that he has used a deadly weapon i.e. pistol during the commission of said robbery along with certain other accused persons in furtherance of their common intention.
39. At the same time, after the above wholesome discussion, the prosecution has also failed to prove the recovery from the accused jewellers Bijender, Ramesh Chand, Jitesh Verma, Devender Kumar and Vinod Jain beyond reasonable doubt. The prosecution has also failed to prove the recovery from the accused Manesh @ Monu beyond reasonable doubt as also his involvement in the incident of SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 50 of 52 -51- robbery. Further, the prosecution has also failed to prove the involvement of accused Bhupender @ Bhuppi in the incident of robbery beyond doubt.
Therefore, the jeweller accused persons namely Bijender, Ramesh Chand, Jitesh Verma, Devender Kumar and Vinod Jain stand acquitted of the charge(s) u/S. 411 IPC, by giving them benefit of doubt, similarly the accused Manesh @ Monu also stands acquitted of the charge(s) u/S. 392/34 r/w 397 and 411 IPC, by extending him the benefit of doubt, further the accused Bhupender @ Bhuppi also stands acquitted of the charge(s) u/S. 392/34 & 397 IPC by extending him the benefit of doubt.
40. However, the probative force of the prosecution evidence as a whole, is touching the point of certainty where the happening of any event is measured or assessed qua the accused Sunil @ Anil @ Senior @ Sonu regarding his presence, participation, as also his identity with regard to armed robbery, which took place in the shop of the complainant on 15.04.2008.
41. Consequently, the prosecution has successfully proved beyond any shadow of doubt the identity of the accused Sunil @ Anil @ Senior @ Sonu having actively participated in the armed robbery / heist along with certain other accused persons, as also that he used a deadly weapon i.e. pistol during the commission of said robbery, SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 51 of 52 -52- which took place in the shop of the complainant on 15.04.2008, therefore, the said accused stand convicted for the charge(s) u/S. 392/34 read with 397 IPC. Digitally signed by SANJEEV SANJEEV AGGARWAL AGGARWAL Date: 2019.08.31 16:32:53 +0530 Announced in the open Court (Sanjeev Aggarwal) on 29th day of August 2019. Addl. Sessions Judge02,North Rohini Courts, Delhi 29.08.2019 SC No. 58293/16; FIR No.226/08; PS Rohini State Vs. Manesh @ Monu & Ors. Page No. 52 of 52