Delhi District Court
State vs . 1. Yad Ram @ Pappu on 1 June, 2019
IN THE COURT OF MS. RAJ RANI, ADDL. SESSIONS JUDGE 04,
(NORTHWEST DISTRICT) ROHINI COURTS, DELHI
IN THE MATTER OF :
Sessions Case No. 53607/16
FIR No: 364/16
U/s: 365/34/395 & 397/412 IPC
PS : Maurya Enclave
STATE Vs. 1. Yad Ram @ Pappu
S/o Sh. Ghisha Ram
R/o H.No.217, Village Hiranki,
Delhi and Village Hisla,
Tehsil & PS Gazi, District Alwar,
Rajasthan.
2. Gajender @ Mote
S/o Sh. Rajesh
R/o Village Karanpur,
Tehsil & PS Patiyali,
District Kashganj, UP
3. Brij Pal
S/o Sh. Lakhmi
R/o Village Kadipur, Nathupura,
Burari, Delhi.
4. Raj Kumar @ Raju
S/o Sh. Dhara Singh
R/o H.No.90, Village Hiranki,
Delhi.
5. Gaffar Ali
S/o Sh. Sahabuddin
R/o 64, Village Hiranki,
School Colony, PS Alipur,
Delhi.
State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 1
Complainant:
Sh. Ajay Paswan
S/o Sh. Vinod Paswan
R/o H.No.336, Ashok Ka Makaan,
Village Alipur Gari,
Delhi.
Date of receiving the file in this court : 02.11.2016
Date for reserved for orders : 31.05.2019
Date of judgment : 01.06.2019
J U D G M E N T:
1. In brief, the case of the prosecution is that on 12.07.2016, on receipt of DD No.18A, SI Madan Mohan along with HC Balram reached at the spot i.e. Flyover opposite VIPS College, where SI Suresh of PS S.P. Badli and HC Davender of PS Mundka and complainant Ajay Paswan met him. HC Devender handed over the MLC of complainant to him. Complainant Ajay Paswan s/o Vinod Paswan made his statement to the effect that he is resident of H.No.336, Ashok Ka Makaan, Village Alipur, Garhi, Delhi and permanent resident of Village Madhuban, PS |Aurai, District Mujaffarpur, Bihar. He had been driving the Tempo TATA 1109 bearing registration No. HR 38P 2365 owned by Shri Mahavir Singh of Village Bakoli, from last 1½ year. On 11.07.2016 at about 8.30pm, from Alipur Garhi godown Khasra No.393, he had loaded 412 cartons of Taj Mahal and Taaza Tea, 119 cartons of Kissan Jam and 225 cartons of Tomato Ketchup and he left at 4.20am, from Alipur for going to Delhi Cantt. Canteen Store department and at 5.00am, when he reached at the flyover by coming via Karnal Bypass road and towards Peeragarhi, a Champion vehicle of light green color came from his State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 2 back and the driver of said Champion stopped the vehicle in front of his vehicle, due to which the vehicle of complainant touched the said Champion and he stopped the vehicle. Thereafter, four boys alighted from the said Champion. He had seen from the side mirror of his vehicle that one white color car had stopped behind his vehicle and three boys alighted from the said car. One boy came and opened the window of his vehicle and had asked him as to why he hit their vehicle and slapped him and also inflicted knife on his right thigh and after pushing him, the said boy sat on the driver seat. Meanwhile, one boy brought the said car which was parked behind his vehicle and was of white color Swift Dzire No. DL 2274 in front of his vehicle. Thereafter, two boys entered his tempo from the conductor side. One boy snatched his mobile Phone having no. 8727263539 and Rs.1000/ from his pocket. They tied a cloth on his eyes and tied his hand on his back with a rope and they moved ahead with his said Champion, their vehicle and the said Swift Dzire car. After some distance, they put him on the back of Champion and two boys sat near him. They kept roaming in the said Champion here and there for about one hour and thereafter, stopped the vehicle at an abandoned place and after staying for some time at the said place, they put the complainant in the car from the Champion and then after going at some distance, they untied his hands and threw him from the car. Somehow, he removed the cloth from his eyes. Thereafter, he reached PS Mundka on foot where he narrated the entire incident to HC Devender who got him medically examined and brought him at the spot. He informed about the incident to the owner of said Tempo who made a call at number
100. The police officials of PS S.P.Badli also reached there. On the State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 3 basis of said statement of complainant, initially case FIR No. 364/16 u/s.365/395/397 IPC was registered at PS Maurya Enclave.
2. After completion of investigation, charge sheet under Section 365/34/395/397/412 IPC was prepared and filed in the concerned court of Ld. Metropolitan Magistrate. After taking cognizance and complying with the provisions of Section 207 Cr.P.C., the present case was committed to the court of Sessions.
3. After hearing arguments on charge, vide order dated 13.01.2017 charge under Sections 365/34 IPC and 395 IPC was framed against all the accused persons. Charge u/s 397 IPC is made out against accused Yad Ram @ Pappu. Charge u/s 412 IPC is made out against accused Yad Ram @ Pappu, Gajender @ Motu and Gaffar Ali by the Ld. Predecessor of this Court to which accused persons pleaded not guilty and claimed trial.
4. In support of its case, the prosecution has examined as many as Seventeen witnesses to prove its case.
PUBLIC WITNESSES:
5. PW8/Ajay Paswan deposed that he was permanent resident of Village Madhuban, PS Orai, District Mujaffarpur, Bihar and he was driving one TATA Tempo bearing registration No. HR38P 2365 belonging to one Mahavir Singh of Village Bakoli for last about 23 years. On 11.07.2016, at about 9.00pm, he had loaded his said TATA State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 4 tempo with about 700 cartons of tea, teabags, Jam and tomato ketchup at a godown situated at Alipur Garhi. In the morning of 12.07.2016 at about 4.20am, he moved his said tempo from the said godown of Alipur to go to Delhi Cantt., to deliver the same at Canteen Store Department. When at about 5.00am, he was on the flyover coming from Karnal Bypass and going towards Peeragarhi, there, suddenly, one vehicle make Champion of light Green color over took his tempo and stopped in front of his tempo. He applied brakes but he could not control his tempo and it touched with Champion. Four boys alighted from the said Champion and he also saw that one car of white color also became stationery behind his said tempo. From the said car also, 23 persons alighted. One boy who had alighted from the Champion, opened the driver's side door of his tempo and gave slaps to him and also caused knife injury on his right thigh, thereafter, he pushed him inside the tempo and sat on the drivers seat of tempo. One more boy boarded his tempo from driver side gate and two boys boarded from the left gate. They also robbed his mobile phone and Rs.1000/ cash, from his pockets. Thereafter, they tied his hands behind his waist with the help of a rope and they blind folded him with a cloth. His tempo moved on the road for about 10 minutes and thereafter, they picked him and after taking out him from the tempo, they had thrown him in their Champion vehicle. Two boys were there in the said Champion along with him. After moving for about 30 - 60 minutes, the said Champion became stationary for about one hour. He was telling the time by approximation as his eyes were blind folded and he was not having any wrist watch. It might have lonely place (jungle) as no vehicular movement was there. It was raining at that State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 5 time. The Champion again moved and after sometime, they shifted him in the car from the said Champion. The car moved for about 1015 minutes and thereafter, they alighted him from the said car and pushed him and thereafter, he heard that the car moved from there. He was bleeding and fell down in mud. He with his own efforts however managed to stand and partly removed the blind fold from his eyes by folding his knee. He moved ahead and reached near a temple and there, one public person untied his hands and he reached PS Mundka on foot at about 11.00am. He also informed about the incident to the tempo owner Shri Mahavir. He was got medically examined by police and he along with one police official of PS Mundka at the flyover where his tempo was robbed. He made his complaint Ex.PW8/A to the police. Police prepared site plan at his instance. On 14.07.2016, on being called by the police, he reached at the place where, he was alighted by the said persons from the car, after the incident on 12.07.2016. There, all the five accused persons who were in the custody of police along with police officials met him and police officials told him their names as Yadram, Brijpal, Raj Kumar, Gajender and one more whose name he did not remember. He identified them in the presence of IO and told that there were three more associates of accused persons at the time of incident. He had pointed out towards accused Yadram being the person who had inflicted knife injury to him and had occupied the driving seat of his tempo. He has identified accused Raj Kumar by face being the person who was driving the said white car at the time of incident. He has further deposed that as he was slapped on his face and was blind folded immediately, as such, except accused Yadram, he could not see other accused State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 6 persons at the time of incident. He had seen accused Brijpal, Raj Kumar, Gajender and Gaffar firstly at the office of Crime Branch where they had confessed their guilt and had told the roles played by them in the present incident and thereafter, he had seen them at the place where he was alighted from the car by them. IO had also prepared the site plan Ex.PW8/B of the place where he was alighted from the car.
6. PW8 was declared hostile and was cross examined by the Ld. Addl. PP for the State regarding identification of accused Gajender, Brijpal, Gaffar Ali and Raj Kumar. He has stated in his complaint Ex.PW8/A that he can identify the accused persons. Witness further deposed that accused Gajender is the person behind this entire incident as prior to the present incident, he was also driving tempo and used to load goods from the said godown for about 15 days. As it was raining and he was feeling cold and at that time, on his request, accused Gaffar Ali had helped him in smoking bidi by his own hand as his hands were tied. He has deposed that prior to his eyes being blind folded, he had seen the accused persons. He further deposed that accused Gaffar Ali along with his one other associate (not arrested) boarded his tempo from conductor side and he dragged from the driver seat and accused Yadram had tied his hands and accused Gaffar Ali drove his tempo and accused Brijpal was driving the said Swift car. He has further deposed that all the five accused persons are the same who were involved in the present incident along their other three associates. He further deposed that he had stated that the said car used by the accused persons in the present offence was a Swift Dezire car of which he could read the number as DL 2274 and could State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 7 not read its complete number.
7. PW9/Gan Nayak Jha deposed that he was working as Area Manager in TCI Supply Chain Solution. Their company was having a godown at Alipur, Delhi and from there, truck No. HR38P 2365 was loaded with about 755 cartons of TATA Tea, Brookbond tea, Taj Mahal Tea, Taja Tea, Kissan Pineapple and Mango Jam, Kissan Tomato Ketchup, Bru Coffee and the said truck departed from the godown on 12.07.2016 at about 4.00am to go to CSD Canteen, Kirbi Place, Delhi Cantt. The driver on the said truck was Ajay Paswan. Later on, he came to know that Ajay Paswan was abducted and the said loaded truck was robbed from Pitampura flyover. Later on, our said goods were recovered by the Police officials of Crime Branch Shakarpur and he got released the said articles from the court on superdari on 20.07.2016., with permission to sell the same, except the seven sample cartons, which he got released later on. The builty of the said articles bearing No. 933657605 is Ex.PW9/A. The sale invoice of Hindustan Lever Ltd. in favor of Canteen Stores Department, Kirbi Place, bearing No. 5008113610 and 5008113609 are Ex.PW9/B and Ex.PW9/C respectively.
8. PW10/Mahavir Singh deposed that he was the registered owner of TATA Truck Model No. 1109 bearing registration No. HR38P 2365. Ajay Paswan was employed by him as a driver of the said truck. On 12.07.2016, Ajay Paswan got the said truck loaded at TCI Godown, Alipur, to go to CSD Canteen Kirbi Place, Delhi Cantt. At about 10.30/11.00am, he received a phone call from PS Mundka and State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 8 thereafter, he had a talk with his driver Ajay Paswan and he informed him regarding his abduction and robbery of his said loaded truck from the flyover near VIPS College, Pitampura. After receiving this information, he dialled number 100 and passed this information. In the evening of 12.07.2016 itself, he came to know that his said truck and robbed goods had been recovered by the police of Crime Branch Shakarpur. On 20.07.2016, by the order of the court, he got released his said truck on superdari. Witness identified the truck through its photographs as Ex.P1.
POLICE WITNESSES
9. PW1/ASI Anju Bala deposed that on 12.07.2016 while working as duty officer at PS Maurya Enclave from 8.00am to 4.00pm, she had received an information about snatching of TATA Canter by some person on bypass, from SI Suresh Chand of PS Samaypur Badli through Telephone and the jurisdiction of said place of incident is of PS Maurya Enclave. She recorded the said information at 12:14 pm vide DD no. 18A of which copy was sent to SI Madan Mohan through HC Balram for taking necessary action in this matter. The copy of DD entry is EX.PW1/A. On receipt of rukka mark A, from SI Madan Mohan, through Ct. Balram at about 1:45 pm, he had got recorded FIR No. 364/16 u/s 365/395/397 IPC on the computer through operator and gave its print out Ex.PW1/B to HC Balram alongwith rukka after making endorsement Ex.PW1/C at its bottom for being delivered to the IO at the spot. His supporting certificate u/s 65B of the Evidence Act is Ex/PW1/D. State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 9
10. PW3/ASI Devender deposed that on 12.07.2016, he was present at PS Mundka and at about 11.30am, one Ajay Paswan s/o Vinod Paswan arrived at the PS and stated that his Tempo had been robbed and he was stabbed. He got Ajay Paswan medically examined and treated for his injury at Sanjay Gandhi hospital through Ct. Manjit. On being asked, Ajay Paswan told him that the incident had taken place at outer ring road near VIPS college flyover. Thereafter, he along with Ct. Manjit and Ajay Paswan reached at the spot ie flyover near VIPS college where, SI Suresh of PS S.P. Badli met him and he informed him that the said portion of flyover where incident had taken place falls within the territorial jurisdiction of PS Maurya Enclave and he further informed that he had passed the information to PS Maurya Enclave. After sometime, SI Madan Mohan along with one head constable came at the spot. He handed over the MLC of Ajay Paswan to him.
11. PW4/HC Sandeep Kumar deposed that on 13.07.2016, he joined the investigation of this case along with IO/ SI Madan Mohan, HC Balram and other staff. They all reached court Room No.101, Rohini Courts, Delhi where accused Yadram, Gajender, Brijpal, Gafar Ali and Raj Kumar were produced by the staff of Crime Branch. With the permission of the court, SI Madan Mohan interrogated all the five accused persons and formally arrested them. Arrest memos of accused Yadram @ Pappu, Gajender, Brijpal, Raj Kumar and Gafar Ali are Ex.PW4/A to Ex.PW4/A4 respectively. IO recorded disclosure statements of accused Gafar Ali, Raj Kumar, Gajender, Brijpal and Yadram and same are Ex.PW4/B to Ex.PW4/B4 respectively. Accused State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 10 persons disclosed that they had committed the present offence along with their associates namely Pawan, Rajender and one more friend of Pawan who had brought the Champion vehicle. Thereafter, accused were remanded to one day JC.
12. PW5 Dr. Rajesh Dalal deposed that on 12.07.2016, he was posted at SGM hospital, Mangolpuri, Delhi as CMO. On that day, at about 12.20pm, one Ajay Paswan s/o Vinod Paswan, 30 year old male was brought by Ct. Manjit for medical examination with alleged history of assault by unknown person. The patient was examined by Dr. Sushil, the then Junior Resident and on local examination, lacerated wound on right thigh measuring 2cmx1cm was observed. MLC of Ajay Paswan Ex.PW5/A is in the handwriting of Dr. Sushil. Dr. Sushil has left the services of the hospital. Patient Ajay Paswan was examined by Dr. Sushil under his supervision.
13. PW6/Ct. Tulsi Ram deposed that on 22.07.2016, on the instructions of SI Madan Mohan, he had obtained Swift Dzire Car of White color bearing registration No. DL1YE 2274 along with key and some other documents from MHC(M) PS Crime Branch and deposited the same in the malkhana of PS Maurya Enclave vide RC No. 286/21/16.
14. PW7/ASI Ramesh Kumar deposed that on 14.07.2016, he joined the investigation of the present case along with SI Madan Mohan, Ct. Anant, Ct. Praveen, Ct. Vikas, Ct. Neeraj and HC Ramesh. On that day, IO had obtained PC remand of accused persons namely State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 11 Brijpal, Yadram, Pappu @ Bijender, Gafar Ali, and accused Raj Kumar. IO got all the said five accused persons medically examined at Dr. Baba Saheb Ambedkar Hospital and thereafter, all the said accused pointed out the place of occurrence one by one. In his presence, accused Brijpal had pointed out the spot ie the road on flyover from Mukarba chowk to Madhuban Chowk in front of VIPS college vide pointing out memo Ex.PW7/A. Thereafter, all the said accused persons led the police party to the road from Neelwal Village to Tikri Village and near Power House, accused Brijpal asked to stop the vehicle and pointed out a field by the side of the road where they had thrown the driver of said truck vide pointing out memo Ex.PW7/B. The driver of the truck was also called there and he had also pointed out and identified the said place, where he was thrown. IO prepared the site plan of the said place at the instance of driver of truck namely Ajay and Ajay also identified all the said five accused persons.
15. PW11/ASI Mohd. Salim Khan deposed that on 12.07.2016, at about 2.00pm, secret informer arrived at their office and informed HC Devender that the PawanPappu Gang involved in Highway robberies, had robbed one loaded truck bearing registration No. HR 38P 2365, on that day ie 12.07.2016 itself from the flyover between Mukarba Chowk and Madhuban Chowk and in the said robbery, one Champion vehicle and one Swift Dzire car of white color bearing registration No. DL1YE 2274, was used. He further informed that the said robbers would go from Kalka Mandir, Govindpuri side towards Okhla between 4.005.00pm to sell the said robbed loaded truck and if raid is conducted, they can be apprehended with the robbed truck and State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 12 goods. HC Devender produced the secret informer before Inspector Vinay Tyagi and he instructed him to constitute a raiding party and to conduct the raid. He constituted a raiding party consisting of himself, SI Raj Kumar, HC Devender, HC Upender, HC Digvijay, HC Parvesh Rathi, Ct. Shashikant, Ct. Satish, Ct. Vikas etc. Thereafter, they got issued arms and ammunition and thereafter, they left from their office at about 2.30pm vide DD No.16 in one govt. gypsy bearing No. DL1CM 4228, driven by Ct. Sameer and two private cars ie one Honda City and one Swift and reached at CBlock, Okhla Industrial Area, near Tughlakabad Village. There, he asked fourfive passers by to join the raiding party after briefing them about the secret information, but they refused and left the place without telling their names and addresses. No notice could be served to them due to paucity of time. As per the instructions of SI Raj Kumar, all the members of raiding party were briefed and were deputed at strategic points. HC Devender along with driver Ct. Sameer were deputed near gypsy. Informer, he and SI Raj Kumar were at one point. At about 4.45pm, secret informer pointed out towards one truck bearing No. HR38P 2365 coming from Govindpuri side, being the same robbed truck. Thereafter, on his indication, Ct. Sameer blocked the way by stopping the gypsy on the road ahead of the truck. Three persons were there in the cabin of the truck, whose names on interrogation, revealed to be accused Gajender Kumar who was driving the said truck, accused Yadram who was sitting on the left window side and accused Gaffar Ali, who was sitting adjacent to the driver. Accused Yadram tried to escape after pushing the police officials, but he was apprehended by him with the help of Ct. Satish. Accused Gajender State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 13 was apprehended by SI Raj Kumar and accused Gaffar Ali was apprehended by HC Devender with the help of one other police official. Meanwhile, one Maruti Swift Dzire car of white color bearing registration No.DL1YE 2274 came from the same direction and after seeing the police party, the driver of said car tried to take a Uturn and at the same point of time, informer pointed out towards the said car being the same which was used in the commission of robbery in this case. The said car was made to stop by HC Parvesh Rathi, Ct. Shashikant and Ct. Vikas and accused Brijpal was driving the said car and accused Raj Kumar @ Raju was sitting on the front left seat of the said car. Thereafter, the secret informer was discharged. The said truck was having a closed body and on the rear gate of said truck, there was a lock. The said lock was opened after obtaining its key from accused Gajender and it was found containing cartons of TATA tea, Tajmahal Tea, Kissan Jam, Mango Jam, sauce etc. On being interrogated, accused persons disclosed that they along with their other associates, namely Rajender, Pawan and one other had robbed the said truck at about 5.00am from the flyover between S.P. Badli and Madhuban Chowk. It was raining at that time, hence, it was not possible to unload the truck and to seize the recovered articles there, as such, they took all the five accused, truck and said Swift Dzire car to their office. On verification from PS Maurya Enclave, he came to know that FIR No.364/16, ie the present case had already been registered in PS Maurya Enclave. When the rain stopped, the articles from the said truck were unloaded and there were total 301 cartons of Taj Mahal Tea, 61 cartons of Kissan Pineapple Jam, 58 cartons of Kissan Mango Jam,225 cartons of Kissan Tomato Ketchup, 81 cartons State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 14 of Brookbond Taja Tea, 27 cartons of Brookbond Taj Mahal Teabags and two cartons of Bru Instant Coffee. One carton of each brand / article was taken out as a sample and same were sealed with the seal of SK with the help of doctor tape. Thereafter, all the said cartons, including the sample cartons were loaded in the said truck and its rear door was locked and was sealed with the seal of SK with the help of doctor tape and the said truck along with key of lock was seized vide seizure memo Ex.PW11/A. The RC, permit and builty of the said truck were also seized vide seizure memo Ex.PW11/B. The said Swift Dzire car along with its RC, permit and key was also seized vide seizure memo Ex.PW11/C. Accused Raj Kumar, Yadram, Gaffar Ali, Gajender Kumar and Brijpal were arrested u/s.41.1(A) and (D) CrPC vide arrest memos Ex.PW11/D to Ex.PW11/D4 respectively and their personal search was conducted vide memos Ex.PW11/E to Ex.PW11/E4 respectively. Case property was deposited in the malkhana and information was passed to PS Maurya Enclave. SI Madan Mohan of PS Maurya Enclave contacted him and he handed over the copy of kalandra and other documents to him. He recorded his statement on 17.07.2016. He has identified truck bearing NO. HR38P 2365, through its photographs is Ex.P1, 23 photographs of cartons Ex.P2 (colly.), two photographs of Swift Dzire car No.DL1YE 2274 Ex.P3.
16. PW12/HC Balram deposed that on 12.07.2016, he was posted at PS Maurya Enclave as HC. On that day, on receiving DD No.18A, he along with SI Madan Mohan reached at the spot ie flyover opposite VIPS college. There, SI Suresh of PS S.P. Badli and HC Devender of PS Mundka alongwith complainant Ajay Paswan met them. HC State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 15 Devender handed over the MLC of Ajay Paswan to SI Madan Mohan. IO/SI Madan Mohan recorded statement/complaint of Ajay Paswan and prepared a tehrir and handed over the same to him. He went to PS and after getting the present FIR recorded, he came back at the spot and handed over copy of FIR and original tehrir to SI Madan Mohan. IO searched for accused and case property but in vain. Thereafter, we alongwith complainant Ajay Pawan reached at PS and there, Ajay Paswan handed over his gray colored pants on which there was a cut mark near the right side pocket, blue and pink colored shirt, chocolate color underwear and white vest, all having blood stains, to the IO and same were seized by him, after preparing a pulanda and sealing the same with the seal of MM, vide seizure memo Ex.PW12/A. On 13.07.2016, he again joined the investigation of this case along with IO/ SI Madan Mohan, HC Sandeep and other staff. They all reached court Room No.101, Rohini Courts, Delhi. There, before the Hon'ble Court, accused Yadram, Gajender, Brijpal, Gafar Ali and Raj Kumar were produced by the staff of Crime Branch. With the permission of the court, SI Madan Mohan interrogated all the five accused persons and formally arrested them. Arrest memos of accused Yadram @ Pappu, Gajender, Brijpal, Raj Kumar and Gafar Ali are Ex.PW4/A to Ex.PW4/A4 respectively. IO recorded disclosure statements of accused Gafar Ali, Raj Kumar, Gajender, Brijpal and Yadram which are Ex.PW4/B to Ex.PW4/B4 respectively. Accused persons disclosed that they had committed the present offence along with their associates namely Pawan, Rajender and one more friend of Pawan who had brought the Champion vehicle. Thereafter, accused were remanded to one day JC. He has identified clothes Ex.P1 colly.
State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 16 which were seized by IO, in his presence.
17. PW13/Ct. Vikas deposed that on 14.07.2016, he was posted at PS Maurya Enclave as constable. On that day, he joined the investigation of the present case along with SI Madan Mohan, Ct. Ramesh, Ct. Anant, Ct. Praveen, Ct. Neeraj and HC Ramesh. On that day, IO had obtained PC remand of accused persons namely Brijpal, Yadram, Pappu @ Bijender, Gafar Ali and Raj Kumar. IO got all the said five accused persons medically examined at Dr. Baba Saheb Ambedkar Hospital and thereafter, all the said accused pointed out the place of occurrence one by one. In his presence, accused Gajender had pointed out the spot i.e the road on flyover from Mukarba chowk to Madhuban Chowk in front of VIPS college vide pointing out memo Ex.PW13/A. Thereafter, all the said accused persons led the police party to the road from Neelwal Village to Tikri Village and near Power House, accused Brijpal asked to stop the vehicle and pointed out a field by the side of the road where they had thrown the driver of said truck. Other accused also corroborated this fact. Pointing out memo Ex.PW7/B was prepared by the IO in this regard. The driver of the truck was also called there and he had also pointed out and identified the said place, where he was thrown. IO prepared the site plan of the said place at the instance of driver of truck namely Ajay and Ajay also identified all the said five accused persons.
18. PW14/SI Suresh Chand deposed that on 12.07.2016, duty officer informed him regarding the contents of DD No.23A, dated 12.07.2016. He telephonically contacted the caller and came to know State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 17 that the incident had occurred on the flyover in front of VIPS college, as such, he reached at the flyover opposite VIPS college and there, complainant Ajay Paswan along with HC Devender of PS Mundka met him. After sometime, SI Madan Mohan along with HC Balram from PS Maurya Enclave also reached there. After making inquiries from the complainant, they came to know that the jurisdiction was of PS Maurya Enclave, as such, SI Madan Mohan recorded statement of Ajay Paswan and got the present FIR recorded.
19. PW15/Inspector Madan Mohan deposed that on 12.07.2016, on receiving DD No.18A, he along with HC Balram reached at the spot i.e. Flyover in front of VIPS College, Pitam Pura where complainant Ajay Paswan along with SI Suresh of PS Samay Pur Badli and HC Devender of PS Mundka met them. HC Devender handed over MLC of Ajay Paswan to him. He recorded statement/complaint Ex.PW8/A of Ajay Paswan and thereafter, he prepared tehrir Ex.PW15/A and handed over the same to HC Balram for getting the FIR registered. He prepared site plan Ex.PW15/B at the instance of Ajay Paswan. Meanwhile HC Balram arrived at the spot and handed over the copy of FIR and original tehrir to him. He seized the clothes i.e. shirt, pant, vest and brief worn by complainant Ajay Paswan at the time of incident vide seizure memo Ex.PW12/A. He recorded supplementary statement of complainant and statements of SI Suresh and HC Devender. Thereafter, they were discharged. He searched for accused and case property but in vain. He along with HC Balram reached PS Maurya Enclave and deposited the case property in the malkhana. He has further deposed that on 13.07.2016, information was received at State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 18 PS Maurya Enclave vide DD No.51B regarding arrest of accused persons involved in the present case and recovery of case property by the police officials of Crime Branch and that the accused persons will be produced before the concerned Court of PS Maurya Enclave at Rohini. After receiving this information, he along with HC Balram, HC Sandeep and other staff reached Rohini Courts, Room No. 101, where HC Mohd. Salim met him. He obtained copy of Kalandara u/s 41.1A and D Crime Branch from him. He had produced the accused persons before the Court in muffled faces. Thereafter, with the permission of Court, he interrogated accused Gaffar Ali, Rajkumar @ Raju, Gajender @ Mote, Brijpal and Yad Ram @ Pappu and recorded their disclosure statements Ex.PW4/B, Ex.PW4/B1, Ex.PW4/B2, ExPW4/B3 and Ex.PW4/B4 respectively. Thereafter, with the permission of Court, he arrested accused Yad Ram @ Pappu, Gajender @ Mote, Brijpal, Raj Kumar and Gaffar Ali vide arrest memos Ex.PW4/A, Ex.PW4/A1, Ex.PW4/A2, Ex.PW4/A3 and Ex.PW4/A4 respectively. Accused were remanded to JC for one day as their TIP was to be got conducted. He along with staff came back to the PS and he recorded statements of HC Balram and HC Sandeep Kumar. He has further deposed that on 14.07.2016, he along with HC Ramesh, Ct. Ramesh, Ct. Vikas, Ct. Anant and Ct. Neeraj left the PS and reached Rohini Courts where he moved an application for the TIP of the accused persons which was marked to Ld. Link MM and there, all the said five accused were produced in muffled faces, but they refused to participate in TIP Proceedings. He obtained copy of orders in this regard and same were made part of record. Thereafter, he obtained one day police custody remand of accused Yad Ram @ Pappu, Gajender @ Mote, State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 19 Brijpal, Raj Kumar and Gaffar Ali. He got them medically examined in BSA Hospital. Thereafter, all the five accused led them to the Flyover and they stopped their vehicle at a distance from the spot and thereafter, all the said five accused pointed out the place of occurrence one by one. Pointing out memos of the spot by accused Brij Pal and Gajender are Ex.PW7/A and Ex.PW13/A respectively and pointing out memos by accused Yad Ram @ Pappu, Raj Kumar and Gaffar Ali are Ex.PW15/C, Ex.PW15/D and Ex.PW15/E respectively. Thereafter, accused Yad Ram @ Pappu, Gajender @ Mote, Brijpal, Raj Kumar led the police party to a lonely place near power house on the road from Nilwal Village to Tikri Village and pointed out the place, where they had thrown complainant Ajay Paswan vide pointing out memo Ex.PW7/D. On being called, complainant Ajay Paswan also reached there and he had identified all the five accused being the same persons who had abducted and committed dacoity. He prepared site plan of the place where complainant was thrown by the accused persons, at the instance of complainant and same is Ex.PW8/B. He recorded supplementary statement of complainant. He searched for other associates of accused persons but in vain. They along with all the five accused in custody came back to PS. He recorded statements of accompanying staff and accused were put in the lock up.
20. PW15 further deposed that on 15.07.2016, all the five accused were produced before the Court and were remanded to JC. On 17.07.2016, he reached at the office of Crime Branch situated at PS Shakar Pur and there, he recorded statements of HC Mohd. Salim and HC Devender. On 19.07.2016, he got the case property i.e. the truck State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 20 and the robbed articles which were loaded in the truck transferred from the Malkhana of PS Crime Branch through HC Balram and same was deposited in the Malkhana of PS Maurya Enclave. On 22.07.2016, he got the said Swift car transferred from the Malkhana PS Crime Branch through Ct. Tulsi and deposited the same in the Malkhana of PS Maurya Enclave. By the order of the Court, the truck and robbed articles were released on Superdaari to the rightful owners. Attested copy of DD No.51 B is Ex.PW15/F. Witness identified clothes of complainant Ajay Paswan Ex.P1 (collectively).
21. PW16/ASI Ravider Kumar deposed that on 12.07.2016, while working as duty officer at PS S.P. Badli from 8.00am to 4.00pm, at about 11:18 am, wireless operator of PS S.P. Badli arrived at the DO room and informed him regarding a PCR call to the effect that, "SGT Nagar, Bye Pass per HR 38B 2365, TATA 1109/Canter ko kuch log chheen kar le gaye". On the basis of said information, he had recorded DD No.23 A, copy thereof is Ex.PW16/A.
22. PW17/ASI Devender deposed on the same line as deposed by PW11/HC Mohd. Salim Khan.
OFFICIAL WITNESS
23. PW2/Apporv Sarvaria, Ld. MM has deposed that he was working as link Magistrate to the court of Ld. ACMM, North West District, Rohini Court, Delhi. On 14.07.2016, SI Madan Mohan of PS Maurya Enclave had filed five applications for conducting TIP of the State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 21 accused persons in this case before him as Sh Devender Nain, Ld. ACMM, NorthWest was on leave. Since accused persons were produced in muffled faces before him, he had asked them individually about their inclination to participate in Test identification proceedings. The accused persons however had refused. Instead of fixing dates for conducting their TIP in jail, the necessary proceedings were conducted in court there and then. The application of IO qua accused Raj Kumar is Ex.PW2/A, qua accused Brijpal is Ex.PW2/C, qua accused Gaffar Ali is Ex.PW2/E, qua accused Yadram is Ex.PW2/G and qua accused Gajender is Ex.PW2/I and two page proceedings including statement of accused Raj Kumar and that of identification statement of IO is Ex.PW2/B, the two page proceedings including statement of accused Brijpal and that of identification statement of IO is Ex.PW2/D, the two page proceedings including statement of accused Gafar Ali and that of identification statement of IO is Ex.PW2/F. The two page proceedings including statement of accused Yad Ram @ Pappu and that of identification statement of IO is Ex.PW2/H and the two page proceedings including statement of accused Gajender @ Monu and that of identification statement of IO is Ex.PW2/J.
24. Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under: S.No PW No. Name of the witnesses Details of witnesses 1 PW1 ASI Anju Bala Police witness State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 22
2. PW2 Sh. Apoorv Sarvaria Ld.MM
3. PW3 ASI Devender Singh Police witness
4. PW4 HC Sandeep Kumar Police Witness
5. PW5 Dr. Rajesh Dalal Doctor
6. PW6 Ct. Tulsi Ram Police witness
7. PW7 ASI Ramesh Kumar Police Witness
8. PW8 Ajay Paswan Complainant
9. PW9 Gan Nayak Jha Public witness
10. PW10 Mahavir Singh Public witness
11. PW11 ASI Mohd. Salim Khan Police witness
12. PW12 HC Balram Police witness
13. PW13 Ct. Vikas Police Witness
14. PW14 SI Suresh Kumar Police Witness
15. PW15 Insp. Madan Mohan Investigating Officer
16. PW16 ASI Ravinder Kumar Police witness
17. PW17 ASI Devender Kumar Police witness LIST OF EXHIBITED DOCUMENTS:
1 Ex.PW1/A DD entry no. 18A ASI Anju Bala 2 Ex.PW1/B Computerized copy of FIR 3 Ex.PW1/C Endorsement on rukka 4 Ex.PW1/D Certificate u/s 65B Evidence Act 5 Ex. PW2/A Application for conducting TIP Sh. Apoorv of accused Raj Kumar Sarvaria 6 Ex.PW2/B TIP proceedings of accused Raj Kumar 7 Ex. PW2/C Application for conducting TIP of accused Brij Pal 8 Ex.PW2/D TIP proceedings of accused Brij Pal 9 Ex. PW2/E Application for conducting TIP State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 23 of accused Gaffar Ali 10 Ex.PW2/F TIP proceedings of accused Gaffar Ali 11 Ex. PW2/G Application for conducting TIP of accused Pappu @ Yad Ram 12 Ex.PW2/H TIP proceedings of accused Pappu @ Yad Ram 13 Ex. PW2/I Application for conducting TIP of accused Gajender @ Motu 14 Ex.PW2/J TIP proceedings of accused Gajender @ Motu 15 Ex.PW4/A to Arrest memos of accused HC Sandeep Ex.PW4/A4 Yadram @ Pappu, Gajender, Kumar Brijpal, Raj Kumar and Gafar Ali 16 Ex.PW4/B to Disclosure statements of Ex.PW4/B4 accused Gafar Ali, Raj Kumar, Gajender, Brijpal and Yadram 17 Ex.PW5/A MLC of complainant Dr. Rajesh Dalal 18 Ex.PW7/A and Pointing out memos of the place ASI Ramesh Ex.PW7/B of occurrence Kumar 19 Ex.PW8/A Complaint Ajay Paswan 20 Ex.PW8/B Site plan 21 Ex.PW9/A Builty of articles Gan Nayak 22 Ex.PW9/B and Sale Invoices of Hindustan level Jha Ex.PW9/C Ltd 23 Ex.P1 Truck through photographs Mahavir Singh 24 Ex.PW11/A Seizure memo of truck and key 25 Ex.PW11/B Seizure memo of RC, permit and builty of truck 26 Ex.PW11/C Seizure memo of RC, permit and key of Swift Dzire car ASI Salim 27 Ex.PW11/D to Arrest memos of accused Raj Khan State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 24 EX.PW11/D4 Kumar, Yadram, Gaffar Ali, Gajender Kumar and Brijpal u/s 41.1 (A) and (D).
28 Ex.PW11/E to Personal search of accused Ex.PW11/E4 persons 29 Ex.P2 (colly.) Cartons through 23 photographs 30 Ex.P3 Swift Dzire Car through two photographs.
31 Ex.PW12/A Seizure memo of cloths HC Balram 32 Ex.PW13/A Pointing out memo by accused Ct. Vikas Gajender 33 Ex.PW15/A tehrir Insp. Madan 34 Ex.PW15/B Site plan Mohan 35 Ex.PW15/C to Pointing out memos of accused Ex.PW15/E Yadram @ Pappu, Raj Kumar and Gaffar Ali 36 Ex.PW15/F Attested copy of DD no. 51B 37 Ex.PW16/A DD no. 23A ASI Ravinder Kumar
25. After completion of the prosecution evidence, statement of accused persons under Section 313 Cr.P.C were recorded, wherein, accused persons have denied all the incriminating evidence put to them and have pleaded that they are innocent and have been falsely implicated and arrested in this case in order to save real culprits.
Police had obtained their signatures on some plain papers and converted them into different memos. They have refused for the TIP proceedings as they were shown by the IO to the complainant and some unknown persons at the PS prior to the TIP proceedings. They were produced in unmuffled faces.
State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 25
26. I have heard the arguments of Shri Virender Kharta, Ld.Addl. PP for the State and Shri M.K. Tyagi, Ld. Counsel for accused Brijpal, Gaffar Ali and Raj Kumar, Shri Ashish Dahiya, Ld. Legal Aid Counsel for accused Yadram @ Pappu and Shri Ashok Kumar, Ld. Counsel for accused Gajender and have gone through the record carefully.
27. Ld. Addl. PP for the State has mainly argued that the prosecution has proved its case beyond all shadow of reasonable doubts by leading cogent and convincing evidence. PW8/ complainant Ajay Paswan has fully supported the case of prosecution and correctly identified the accused persons. PW5 Dr. Rajesh Dalal has also corroborated the prosecution case and proved MLC of injured Ajay Paswan. PW8 has specifically mentioned the role of all accused persons in the commission of offence. The prosecution has been able to prove that accused persons had committed the offence of abduction, dacoity, causing hurt to complainant. It is also proved that the robbed TATA Tempo containing goods was recovered from accused Gaffar Ali, Gajender and Yadram. His testimony is natural and trustworthy and can be safely relied upon. It has been argued that the testimonies of other prosecution witnesses are also reliable, cogent and convincing and there is no material discrepancy or inconsistency in their deposition and hence all the accused are liable to be convicted for commission of offences with which they have been charged with.
28. Per contra, Ld. Counsels for accused persons argued that in the present case no incriminating corroborative evidence is brought on State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 26 record by the prosecution. There are material contradictions in the testimony of PW8, so the same cannot be relied upon. He has deposed that accused persons have been falsely implicated and arrested in this case after being lifted from their respective houses. They are not involved in the alleged offence. They refused for the TIP proceedings as they were shown to the complainant at the PS prior to the TIP proceedings. Nothing incriminating has been recovered from the possession or at the instance of accused persons. The Ld. Defence counsels have further argued that the testimony of PW8 cannot be relied upon being hostile witness. The case property has been planted on them. The accused persons have not made any disclosure statements regarding their involvement in the present case. Further the Ld. Defence counsels have prayed that the accused persons be acquitted.
29. In order to prove its case, prosecution has mainly relied upon the testimony of PW8 Ajay Paswan who is the sole witness to the incident, PW9 Gan Nayak Jha, Area Manager of TCI Supply Chain Solutions, PW10 Mahavir Singh, registered owner of the TATA Truck, PW5 Dr. Rajesh Dalal and witnesses regarding recovery of TATA Truck.
30. In his testimony, PW8 Ajay Paswan being the complainant has deposed that on 12.07.2016 at about 4.20am, he left from godown of Alipur Garhi to deliver the goods at Canteen Store Department, Delhi Cantonment. Then, at about 5.00am, when he reached on the flyover by coming via Karnal Bypass and going towards Peeragarhi, his tempo touched with Champion. Four boys alighted from the said Champion. Accused Gaffar Ali boarded his tempo and dragged him State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 27 from driver seat and drove his tempo. Accused persons confined him firstly in his tempo, then in Champion vehicle and thereafter in white Swift Car. It is deposed by PW8 that accused Yad Ram had inflicted a knife blow on his person. The accused persons robbed his mobile phone and cash of Rs.1000/. Thereafter accused persons tied his hands behind his waist with the help of a rope and they blind folded him with a cloth. His tempo moved on the road for about 10 minutes and thereafter, they picked him and after taking him out from his tempo, they had thrown him in their Champion vehicle. He further states that two boys were there in the said Champion and after moving for about 3060 minutes, the said Champion became stationary for about one hour. The Champion again moved and the accused persons shifted him in a car. They kept roaming in the said car here and there for about 10 to 15 minutes and then alighted him from the said car and pushed him from the car. Somehow, he removed the cloth from his eyes. Thereafter, he reached PS Mundka on foot where he narrated the entire incident to police. PW8 has deposed that as he was slapped on his face and was blind folded immediately, therefore except accused Yadram, he could not see other accused persons at the time of incident. In his crossexamination, he has deposed that he had seen accused Brijpal, Raj Kumar, Gajender and Gaffar firstly at the office of Crime Branch.
31. The witness was declared hostile and was crossexamined by Ld. Addl PP wherein PW8 has correctly identified all the accused persons. PW8 has deposed that prior to his eyes having been blind folded, he had seen the accused persons. He has specifically pointed State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 28 out towards accused Yadram being the person who had inflicted knife injury to him, tied his hands and had occupied the driving seat of his tempo. He has further stated that accused Gaffar Ali along with one other person boarded his tempo from conductor side and dragged him from the driver seat, drove his tempo and he had also helped him in smoking bidi by his own hands as his hands were tied. He has further stated that accused Brijpal was driving the said Swift car. He has deposed that accused Gajender is the person behind this incident as prior to the present incident, he also used to drive tempo and load goods from the said godown for about 15 days. He has also pointed out towards accused Raj Kumar being the person who was driving the white car which became stationary behind his tempo. He further deposed that all the five accused persons are the same persons who were involved in the present incident alongwith their other three associates.
32. Before proceeding further, relevant case law with regard to testimony of hostile witness needs to be perused.
33. In State of U.P. Vs. Ramesh Prasad Misra & anr, AIR 1996 SC 2766, Hon'ble Supreme court held that evidence of a hostile witness would not be rejected in entirety if the same has been given in favour of either the prosecution, or the accused, but is required to be subjected to careful scrutiny and thereafter, the portion of the evidence which is consistent with either the case of the prosecution or that of the defence, may be relied upon. Therefore the law permits the court to take into consideration the deposition of a hostile witness to the State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 29 extent that the same is in consonance with the case of the prosecution and is found to be reliable in careful judicial scrutiny.
34. In Khujji @ Surendra Tiwari Vs The State of Madhya Pradesh, 1991 AIR 1853, it has been held by Hon'ble Supreme Court that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof.
35. Ld. Counsels for accused persons have argued that PW8 has failed to identify the accused persons and they are entitled to be acquitted on this sole ground. PW8 has specifically stated in his examination in chief that as he was slapped on his face and was blind folded immediately, therefore except accused Yadram, he could not see other accused persons at the time of incident and had seen accused Brijpal, Raj Kumar, Gajender and Gaffar firstly at the office of Crime Branch. The police officials of crime branch had told the names of accused to him. This contention of the Ld. Defence counsels is not tenable as PW8 has described the role of all the accused persons by pointing out towards them during his testimony in Court. The prosecution has established on record the presence of all the accused at the spot and their identity is established on record beyond any reasonable doubt. The arguments raised by Ld. Defence counsels that evidence of PW8 cannot be looked into as he has turned hostile State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 30 on the point of identity of accused persons has no force as it is settled law that evidence of a hostile witness cannot be treated as washed off the record altogether. The portion of evidence which is found to be consistent with either the case of the prosecution or that of the defence, may be relied upon.
36. In the present case, PW8 is not completely hostile. Though, in his examinationinchief, he has deposed that as he was blind folded immediately, therefore except accused Yadram, he could not see other accused persons at the time of incident and had seen accused Brijpal, Raj Kumar, Gajender and Gaffar firstly at the office of Crime Branch. But on the next breathe during crossexamination by Ld. Addl. PP, he has specifically mentioned the roles of all accused persons which seems to be very natural. He went one step further by stating that accused Gaffar Ali had helped him in smoking bidi by his own hand as his hands were tied. He has also clarified that prior to his eyes having been blind folded, he had seen the accused persons. Moreover, PW8 was not crossexamined by Ld. counsels for accused Brijpal, Gaffar Ali, Raj Kumar and Gajender despite the fact that PW8 has specifically mentioned the role of these accused persons. It is settled law that the crossexamination is a matter of substance and not of procedure and parties are required to put their version to the witness. The effect of non crossexamination of a witness is that the statement of witness has not been disputed and same has been accepted. It is also noted herein that in his complaint Ex.PW8/A, PW8 has stated that he can identify all the accused persons if produced before him. So, the portion of the evidence of PW8 wherein he has identified all accused persons is found to be consistent with the case State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 31 of the prosecution which can be safely relied upon.
37. In the present case, PW8 got injured during the commission of offence who had been examined by Dr. Rajesh Dalal/ PW5. The testimony of PW8 stands corroborated by PW5 Dr. Rajesh Dalal who proved the MLC Ex.PW5/A of PW8/ injured. His testimony cannot be brushed aside lightly. Reliance can be placed on the judgment titled as Shivalingappa Kallayanappa V. State of Karnataka, 1994 Supp (3) SCC 235, wherein it has been held by the Hon'ble Supreme Court that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident".
38. It is settled proposition of law that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. (See Judgment titled as Abdul Sayeed V. State of M.P. (2010) 10 SCC, 259).
39. The testimony of PW8 further stands corroborated by PW9 Area Manager in TCI Supply Chain Solutions who has deposed that State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 32 on 12.07.2016 at about 4.00am Truck No. HR38P 2365 was loaded with about 755 cartons of goods and the said truck was departed from the Alipur Garhi godown for going to CSD Canteen, Kirbi Place, Delhi Cantt. and the driver on the said truck was Ajay Paswan. Later he came to know that Ajay Paswan was abducted and the said loaded truck was robbed from Pitampura flyover which was later on recovered by the officials Crime Branch Shakarpur and he got released the goods from the court on superdari. The testimony of PW8 further finds corroboration from the testimony of PW10 Mahavir Singh, the registered owner of TATA Truck to the extent that PW8/ Ajay Paswan was employed by him as a driver of the said truck. On 12.07.2016, Ajay Paswan got the said truck loaded at TCI Godown, Alipur, to go to CSD Canteen Kirbi Place, Delhi Cantt. At about 10.30/11.00am, he received a phone call from PS Mundka and his driver Ajay Paswan informed him regarding his abduction and robbery of the said loaded truck.
40. It has been argued by Ld. Counsel for accused persons that there are material contradictions and discrepancies in the statements of prosecution witnesses. This contention of Ld. Defence Counsels regarding contradictions in the testimonies of prosecution witnesses is not tenable as the contradictions pointed out by the Ld. Defence counsels are minor in nature and it is settled law that minor contradictions and inconsistencies on trivial matter which do not affect the core of the prosecution case, should not remain a ground on which prosecution evidence can be rejected in its entirety.
State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 33
41. It has been held by Hon'ble Supreme Court in judgment titled as Bharwada Bhoginbhai Hirjibhai V. State of Gujarat, 1983 AIR 753 DOJ 24.05.1983 that discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilitiesfactor" echoes in favour of the version narrated by the witnesses.
42. Accused persons have come out with the defence that they have been falsely implicated by police which does not appear to be true and convincing as no witness has been examined by the accused persons in their defence. The accused persons have failed to bring on record any application moved by them before any senior officer complaining about their false implication in the present case, hence, they have failed to prove the same. Therefore, there is no force in the contention of Ld. Counsels for accused that accused have been falsely implicated in this case. PW8 is the injured/ complainant and as already discussed above, it is settled law that the testimony of injured witness should be relied upon unless impeached by convincing evidence which has not come forth in the present case. Nothing has come on record to discredit his testimony so as to make him unreliable. It is not the case of the defence that there was any enmity between the injured and the accused persons, so there is no reason for the injured to falsely implicate the accused persons and let go his actual assailants. The contention of Ld. Defence Counsels regarding false implication of accused persons is liable to be rejected, as when the testimony of PW8 complainant is corroborated with the State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 34 testimonies of other material witnesses including medical evidence, it comes out that there is no reason to disbelieve the version of the complainant, as accused persons have not led any cogent evidence in their defence to prove this factum, therefore, this contention of Ld. Counsels is also baseless and vague.
43. In the present case, all the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistencies or contradictions. The evidence of the prosecution witnesses is natural and trustworthy and also corroborated by the medical evidence. The testimony of PW8 is sufficient to come to the conclusion that it were the accused persons who had abducted PW8 and had committed robbery and it was accused Yad Ram, who had used knife in the commission of offence upon his person.
44. Ld. Counsels for accused persons have argued that PW8 Ajay Paswan/ complainant is the sole witness to the incident and no other public witness has been cited by the prosecution who can corroborate the incident as alleged by PW8. As such, the prosecution story cannot be relied upon only on the basis of testimony of PW8. This contention of the Ld. Counsels is not tenable as it is settled law that no particular number of witnesses shall in any case be required for proof of any fact. The provisions contained in Section 134 of the Indian Evidence Act are founded on the principle that evidence has to be weighed and not counted. It should be remembered that plurality of evidence is only a rule of prudence and not an inflexible requirement State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 35 of law. In view of the provisions contained in Section 134 of the Indian Evidence Act, the testimony of a solitary witness is sufficient to convict an accused.
45. In Veer Bahadur Singh @ Veeru V. State, Crl.A.1088/2012, DOD 18.03.2015, Hon'ble High Court of Delhi has been pleased to hold that there is no legal impediment in convicting a person on the sole testimony of a single witness. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact.
46. In view of above discussion, it is proved on record that accused persons have abducted PW8 Ajay Paswan and robbed his truck loaded with goods and accused Yad Ram inflicted knife injury to him. They have also robbed Rs.1000/ cash and mobile phone from PW8.
47. Thus, the prosecution has successfully established on record that it were the accused persons who had abducted PW8 Ajay Paswan and considering the role played by accused persons, the manner and circumstances under which the offence of abduction is shown to have been committed, there is no scope of doubt that accused persons were sharing common intention to abduct the complainant. I am convinced that prosecution has been able to establish the charge under section 365 IPC against all the accused persons. Hence, the accused persons are liable to be convicted under Section 365/34 IPC. It has also been proved on record that all the five accused persons had conjointly committed the offence of robbery, hence, they are also liable to be convicted u/s. 395 IPC.
State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 36
48. It has been argued by Ld. LAC for accused Yadram that Section 397 IPC is not applicable to the facts of the present case, as there is lack of proof of necessary ingredients of Section 397 IPC. I do not find any merit in the arguments raised by Ld. LAC as to the applicability of Section 397 IPC and the alleged lack of proof of necessary ingredients. PW8 has categorically deposed that accused Yad Ram had used knife and had inflicted knife injury on his right thigh during the commission of dacoity. His deposition also stands corroborated by the evidence of PW5 Dr. Rajesh Dalal with regard to injuries who has proved the MLC Ex.PW5/A of PW8 Ajay Paswan, wherein, it is mentioned that on local examination, lacerated wound on right thigh measuring 2cm x 1cm was observed.
49. It has been argued by Ld. LAC that alleged knife stated to have been used during commission of dacoity has not been recovered which itself falsifies the case of the prosecution. Admittedly, knife could not be recovered by the investigating agency. But mere non recovery of knife is not a factor from which the accused can get any benefit. Reliance can be placed on judgment in case Mohinder Vs. State 2010 VII AD (Delhi) 645 wherein it was held that nonrecovery of weapon of offence during investigation is not such an important factor to neutralize the direct evidence of complicity of accused in the case.
50. So, in view of above, it has been proved on record that accused Yadram had used knife at time of commission of dacoity. The plea taken by Ld. LAC is liable to be rejected as the charge under section State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 37 397 IPC stands proved against accused Yad Ram in view of the testimony of PW8 who categorically deposed on the lines of prosecution case that accused Yad Ram was the person who had used the knife during the commission of offence of dacoity. Hence, accused Yadram is liable to be convicted under Section 397 IPC.
51. As far as charge under Section 412 IPC is concerned, it has been proved that robbed truck bearing No. HR 38P 2365 was found in possession of accused Gajender, Yad Ram and Gaffar Ali which they had dishonestly retained having knowledge or reason to believe it to be the stolen property. The recovery witnesses i.e. PW11 and PW17 have fully supported the case of the prosecution and deposed on the same lines that accused Gajender Kumar, Yadram and accused Gaffar Ali were found in possession of loaded robbed truck. It is well settled in the judgment of Amar Singh V. State of M.P. AIR 1982 SC 129 that for conviction of an accused under Section 412 IPC, the prosecution must prove that accused dishonestly received the stolen property knowing or having reason to believe that its possession has been transferred by the commission of the dacoity and when very soon after the dacoity, the property looted by dacoity had been recovered from the accused, the accused is guilty under section 412 IPC.
52. In view of the above, the prosecution has successfully established on record that the robbed TATA Truck was recovered from the possession of accused Yad Ram, Gaffar Ali and Gajender. Therefore, under these circumstances, above said accused persons State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 38 are liable to be convicted for the offence punishable u/s 412 Indian Penal Code.
53. In view of the above discussion, all the accused persons are convicted for the offence u/s.365/34 IPC and 395 IPC. Accused Yadram is also convicted for the offence punishable u/s.397 IPC. Accused Yadram, Gaffar Ali and Gajender @ Motu are convicted u/s.412 IPC.
54. Let all the convicts be heard on the quantum of sentence.
RAJ Digitally signed
by RAJ RANI
Date:
RANI 2019.06.10
15:39:58 +0530
Announced in the open court (Raj Rani)
st
on 01 June, 2019 Addl. Sessions Judge04(NorthWest)
Rohini Courts, Delhi.
State V. Yad Ram & Ors. FIR no. 364/16 PS Maurya Enclave Page 39