Delhi District Court
State vs . (1) Sunil Kumar on 26 February, 2014
IN THE COURT OF Dr. KAMINILAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 08/2013
Unique Case ID No.: 02404R0317012012
State Vs. (1) Sunil Kumar
S/o Tulsi Ram
R/o House No. 10685,
Gali No.8, Andha Mugal,
Pratap Nagar, Delhi
(Convicted)
(2) Sonu @ Kaliya
S/o Dharam Singh
R/o House No. 10613,
Gali No.6, Andha Mugal,
Pratap Nagar, Delhi
(Acquitted)
(3) Rajender Kumar @ Kallan
S/o Suresh Chand
R/o House No. B2/255256,
Sector20, Rohini,
Delhi
(Acquitted)
FIR No.: 223/2012
Police Station: Ashok Vihar
Under Sections: 392/397/413/34 IPC &
25/54/59 of Arms Act
St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 1
Date of committal to sessions court: 7.1.2013
Date on which orders were reserved: 14.2.2014
Date on which judgment pronounced: 15.2.2014
JUDGMENT:
(1) As per the allegations on 8.9.2012 at 9:15 AM at Ring Road, Richi Rich Banquet Hall, towards Prembari Bridge, Ashok Vihar in furtherance of their common intention the accused Sunil Kumar and Sonu @ Kaliya committed robbery of a gold chain and Rs.21,000/ from the possession of the complainant Parveen Parashar. It has been alleged that while committing robbery, while the accused Sonu @ Kaliya was driving the two wheeler scooter on which the accused had come, it was the accused Sunil Kumar who showed a country made pistol to the victim. In so far as the accused Rajender Kumar @ Kallan is concerned it is alleged that he habitually received or deal in property which he knew or has reasons to believe to be stolen property and dishonestly received or retained a stolen property i.e. gold chain belonging to the victim Parveen Parashar. CASE OF THE PROSECUTION/ BRIEF FACTS:
(2) The case of the prosecution is that on 8.9.2012 at 9:40 AM an information was received at Police Post WPIA Ashok Vihar that two persons on a scooter had robbed one person of his gold chain and Rs.
21,000/ on the point of revolver in front of Richi Rich Banquet Hall. St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 2 Pursuant to the said information SI Ved Prakash along with Ct. Amit reached in front of Richi Rich Banquet Hall where the victim Praveen Parashar met him along with his AStar black colour car. The victim informed the police that a robbery had taken place with him at red light of Richi Rich Banquet Hall, Ring Road in which two boys who were between the age group of 2832 years, had come on a two wheeler scooter and after compelling him to stop, one boy came towards him and put a katta on his chest whereas the other boy covered him from the other side of the car by coming towards the front gate of the seat next to the driver seat. The victim further informed the police that the person who had put the katta on his chest, snatched his gold chain and removed Rs.21,000/ from the pocket of his pant. SI Ved Prakash recorded the statement of victim Praveen Parashar on the basis of which the present FIR was registered.
(3) Efforts were made to trace the culprits but they could not be traced. Thereafter the victim/ complainant was taken to the Police Station where he was shown the dossiers of the various criminals of the area and from the said dossiers/ photographs, the complainant Praveen Parashar could identify the accused Sunil S/o Tulsi Ram as one of the assailants. The supplementary statement of the victim was also recorded. On 14.09.2012 the complainant Praveen Parashar came to Police Station and informed the Investigating Officer that in his initial statement he had mentioned the weight of the gold chain snatched by the assailants as 10 gms whereas it was actually 16 gms which fact he came to know after the St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 3 discussion with his family on which the Investigating Officer recorded the supplementary statement of the victim.
(4) On 28.09.2012 SI Ranbir Singh of Police Station Bharat Nagar gave information vide DD No. 43B that Sunil had been apprehended in an Arms Act case and during investigations he had disclosed his involvement in the present case of robbery. Thereafter the Investigating Officer obtained the photocopy of disclosure statement of the accused Sunil in the said case alongwith the copies of FIR, seizure memos and statements of the other witnesses of the raiding party. On 30.09.2012 ASI Arvind from Police Station Bharat Nagar vide DD No.18A informed that the case property i.e. gold chain stolen in the present case had also been recovered from the accused Rajender @ Kallan. On 01.10.2012 the Investigating Officer moved an application before the Area MM for production of the accused Sunil pursuant to which on 03.10.2012, the accused Sunil was produced before the Area MM and after taking permission from the Court, the accused Sunil was arrested in this court. On 04.10.2012 during Judicial Test Identification Parade the complainant/ victim Parveen Parashar identified the accused Sunil. Thereafter pursuant to the application of the Investigating Officer the accused Sonu and Rajender who were already in Judicial Custody in some other case, were produced before the Area MM in muffled face and after taking permission from the Ld. MM both the accused Sonu @ Kaliya and Rajender @ Kallan were arrested in this case. During Judicial Test Identification Parade the accused Sonu @ Kaliya refused to St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 4 take participate in the same. While the accused Sonu @ Kaliya was coming out of the Court Room, the complainant had identified him as the same boy who was driving the scooter. On 11.10.2012 during Judicial Test Identification Parade of the case property the complainant/ victim Parveen Parashar identified his gold chain. After completion of investigations charge sheet was filed against the accused persons.
CHARGES:
(5) Charge under Section 392/34 IPC was settled against both the accused Sunil Kumar and Sonu to which they pleaded not guilty and claimed trial. Further, charges under Section 397 IPC & 27 of Arms Act were settled against the accused Sunil Kumar to which he pleaded not guilty and claimed trial. In so far as the accused Rajender @ Kallan is concerned, charge under Section 413 IPC was settled against him to which he pleaded not guilty and claimed trial.
(6) 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:
List of Prosecution Witnesses:
Sr. PW No. Name of the witness Details of the witness No. 1. PW 1 W Ct. Sumitra Police witness - DD Writer 2. PW 2 HC Satbir Police witness - Duty Officer St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 5 3. PW 3 HC Rishi Raj Police witness - MHCM 4. PW 4 W Ct. Sonika Yadav Police witness - PCR Official 5. PW 5 W Ct. Geeta Police witness - DD Writer 6. PW 6 W HC Surinder Police witness - Duty Officer 7. PW 7 HC Hukum Singh Police witness - DD Writer 8. PW 8 HC Veer Sen Police witness - Duty Officer 9. PW 9 HC Raj Pal Police witness - Duty Officer 10. PW 10 HC Mefooz Police witness - MCHM 11. PW 11 Parveen Prashar Complainant/ victim 12. PW 12 Kartik Nayak Official witness who has brought the record of FIR No. 220/12, PS Bharat Nagar 13. PW 13 Sanjay Nagar Official witness who has brought the record of FIR No. 74/12, PS Bharat Nagar 14. PW 14 SI Ranbir Singh Police witness 15. PW 15 HC Rajeev Kumar Police witness - member of the police party who had apprehended the accused Sunil 16. PW 16 Ct. Darvesh Police witness - member of the police party who had apprehended the accused Sunil 17. PW 17 Ct. Amit Police witness who had reached the spot along with SI Ved Prakash 18. PW 18 ASI Arvind Police witness who has proved the arrest of accused Rajender Kumar @ Kallan 19. PW 19 Ct. Babu Lal Police witness who had joined investigations with IO 20. PW 20 SI Ved Prakash Investigating Officer of the present case St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 6 List of documents exhibited Sr. No. Exhibit No. Details of documents Proved by 1 PW 1/1 Affidavit of W Ct. Sumitra W Ct. Sumitra 2 PW 1/A DD No. 09 3 PW 2/1 Affidavit of HC Satbir Singh HC Satbir Singh 4 PW 2/A Copy of FIR No. 223/12 5 PW 2/B Endorsement on rukka 6 PW 3/1 Affidavit of HC Rishi Raj HC Rishi Raj 7 PW 3/A Copy of Reg No. 19 Sr. No. 3364 8 PW 4/1 Affidavit of W Ct. Sonika Yadav W Ct. Sonika 9 PW 4/A PCR Form Yadav 10 PW 5/1 Affidavit of W Ct. Geeta W Ct. Geeta 11 PW 5/A DD No. 43B 12 PW 6/1 Affidavit of W HC Surinder W HC Surinder 13 PW 6/A Copy of FIR No. 170/12 14 PW 6/B Copy of DD No. 16/A 15 PW 7/1 Affidavit of HC Hukum Singh HC Hukum Singh 16 PW 7/A Copy of DD NO. 18/A 17 PW 8/1 Affidavit of HC Veer Sen HC Veer Sen 18 PW 8/A Copy of FIR No. 220/12 19 PW 9/1 Affidavit of HC Raj Pal HC Raj Pal 20 PW 9/A Copy of FIR No. 154/12 21 PW 9/B Endorsement on rukka 22 PW 10/1 Affidavit of HC Mehfooz HC Mehfooz 23 PW 10/A Copy of Reg No. 19 Sr. No. 801 24 PW 10/B Copy of RC88/21/12 25 PW 11/A Complaint of Parveen Parveen Prashar 26 PW 11/B Dossier with Photograph 27 PW 12/A Sanction U/s 39 Arms Act Sh. Kartik Nayak St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 7 28 PW 13/A Seizure memo of gold Chain Sanjay Nagar 29 PW 19/A Arrest memo of Sunil Kumar Ct. Babu Lal 30 PW 19/B Disclosure statement of Sunil Kumar 31 PW 19/C Arrest memo of Sonu @ Kaliya 32 PW 19/D Disclosure Statement of Sonu @ Kaliya 33 PW 19/E Arrest memo of Rajender Kumar 34 PW 19/F Disclosure Statement of Rajender Kumar 35 PW 20/A Rukka SI Ved Prakash 36 PW 20/B Site plan EVIDENCE: (7) In order to prove its case the prosecution has examined as many as Twenty Witnesses as under: Public witness/ complainant/ victim: (8) PW11 Sh. Praveen Parashar is the complainant/ victim in the
present case who has deposed that he is doing the business of marble stone and having a shop bearing No. 305 and 390 at Mangol Puri Marble Market. According to him, on 08.09.2012 at about 9.00AM he was going to his above said shop from his house by his car Maruti A Star of black colour bearing no. DL 8C Q 5613 and was also having a briefcase which was kept on the rear seat of his car which containing some documents. He has further deposed that when he reached just ahead of Richi Rich Banquet Hall Red Light and hardly moved ahead by ten steps at about 9.15AM one two wheeler scooter of light blue colour stopped in front of his car and two St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 8 persons were sitting on the scooter and both the persons aged about 30 years were wearing Coca Cola shirt and blue coloured jeans pant. He has further deposed that the pillion rider of the scooter got down from the scooter and put a pistol upon him on his chest and said that hum chaudhary adami hai humara dimang ghuma hua hai or tera ghar se pichha kar rahe hai complaint ki to goli mara denge. Thereafter the said person snatched his gold chain from his neck and the person who was driving the scooter came on the left side door of the car and the person who put pistol and snatched his chain from neck also took Rs.21000/ from his jeans pant and thereafter the said person opened the brief case lying on the rear seat but nothing valuable was found in the brief case. He has testified that both the said persons threatened him not to make any complaint and thereafter they drove away towards Azadpur with their scooter. According to the witness, he was under fear that the abovesaid assailants might come again at the spot and hence he moved forward for about half a kilometer and parked his car at the corner of the road in front of Wazirpur Depot and made a call at 100 number pursuant to which PCR gypsy reached there and two police officials also came from the Wazirpur police post at that place. He has further deposed that thereafter he came at the place of incident with the police where he had shown the place of incident to the police. He has proved that his statement was recorded by the police vide Ex.PW11/A and the police also prepared the site plan of place of incident at his instance. According to the witness, on the same day he went to the Police Station Ashok Vihar with St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 9 police where police officials had shown the mini dossier Ex.PW11/B with photograph and he identified the photographs of one of the person who put pistol upon him and robbed his chain and Rs.21000/ and he came to know name of said person as Sunil. He has testified that on 14.09.12 he again went to the Police Post Wazirpur where SI Ved Prakash met him and he told SI Ved Prakash that his robbed chain was weight of 16gm instead of 10gm since he came to know the weight of his chain as 16gm when he returned his house on the day of incident.
(9) The witness has further deposed that on 04.10.12 he reached at Tihar jail for identification of the above said assailants and he identified the accused Sunil in the Tihar jail during the TIP proceedings before the Ld MM vide TIP proceedings which is Ex.PW11/C. According to the witness, on 10.10.12 he came to Rohini Court Complex where he saw one person who was muffled face while going inside the court room and after some time he came out from the court room and removed the cover from his face and then he saw his face and identified him as a person who was driving the scooter on the day of incident and committed the incident with accused Sunil, which facts he told to SI Ved Prakash. He has also deposed that on 11.10.12 he came at Rohini Courts where he identified his gold chain during the TIP proceedings in the chamber of the Ld MM vide proceedings which is Ex.PW11/D. (10) The witness has identified the accused persons in the Court. He has pointed out towards the accused Sunil Kumar and Sonu @ Kalia and St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 10 identified the same as the person who committed above said incident against him. He has specifically identified the accused Sunil Kumar as the person who put the pistol upon his chest and snatched his gold chain and also robbed Rs.21,000/ from his jeans pant and accused Sonu @ Kaila is the same person who was driving the scooter on the day of incident and committed the incident alongwith accused Sunil Kumar and states that both accused threatened him to shoot him if he made a complaint. He has also identified the gold chain which is Ex.P1 which chain was broken from the middle portion.
(11) In his cross examination by Ld. Defence counsels, the witness has admitted that the Investigating Officer did not record his statement on 10.10.12 but has denied the suggestion that on 10.10.12 he did not come to the Rohini Court and did not see accused Sonu while going inside of the court in muffled face and also did not see accused Sonu came out from the court room and remove cover from his face so as to identify him as assailant. Witness has further denied the suggestion that he had seen the accused Sonu at Police Station before 10.10.12. According to the witness, he had stated to the police in his statement that both accused threatened him to shoot if he made complaint. However, when confronted with his statement Ex.PW11/A the above facts was not found so recorded. Witness has further deposed that he reached the Police Station Ashok Vihar at about 11.3011.45 AM and has voluntarily explained that after reaching of the St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 11 police, he reached at the place of incident at 10.00 AM, then they reached at Police Post Wazirpur at about 10.45 AM and thereafter they reached at Police Station Ashok Vihar at about 11.3011.45 AM. Witness has testified that he remained at Police Station Ashok Vihar at about half an hour to Two hours and he remained at the police post Wazirpur for about 3540 minutes and police recorded his two statements only. He has also deposed that his first statement was recorded on 08.09.12 and second statement was recorded on 14.09.12 and both his statements were recorded at police post Wazirpur and he had gone to the Police Station only three times. He has testified that on first two dates he went to Police Station for recording of his statement and third time for superdari of his chain. According to the witness, he had put his signatures at the police post first time while his statement was recorded for registration of FIR and then he also put his signatures at Police Station Ashok Vihar while he received his chain on superdari. He has admitted that site plan prepared by the police does not bear his signatures. According to him police prepared the site plan at his instance but police did not record his statement in this regard. Witness has denied the suggestion that police did not prepare the site plan at his instance. According to him after the incident he moved forward due to fear and stopped his vehicle at a distance of about half a kilometer near Wazirpur depot between Wazirpur depot flyover and cut going towards Madhuban Chowk and has voluntarily explained that he found that place as a safe place. Witness has admitted that he made a PCR call from that place. St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 12 Witness has further deposed that within 15 minutes PCR officials had reached there but he is not aware of the names of those PCR officials and has stated that within ten minutes of reaching of PCR official the local police also reached there. He has also deposed that SI Ved Prakash and one other police official came from the police post Wazirpur but he does not remember by which vehicle they reached at that place. According to the witness, he was never informed about the arrest/ apprehension of the accused and has voluntarily explained that he was only called to the Rohini Court complex on 10.10.12 on telephone, when he saw the accused Sonu while coming out of the court room. He has also deposed that he took the route from his house as firstly through Lakshmi Bai College then through Ashok Vihar Tank Red Traffic Signal then Red Light towards Satyawati College after which he took left turn Ring Road Shalimar Bagh and then reached at the place of incident. Witness has admitted that a normally PCR van is parked near Lakshmi Bai College and has voluntarily explained that it is after the cut/ Tpoint of his colony. He has further admitted that there is traffic booth at the Ashok Vihar Water Tank Red Light Tpoint and that this road passes through the Ashok Vihar Police Station. Witness has denied the suggestion that after the underpass there is a police booth and barricading is done there and has voluntarily added that there is no barricading. Witness has also admitted that on the red light there is normally a traffic police check. He has however denied the suggestion that when he passed through this route there were sufficient police check posts St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 13 and has voluntarily explained that he did not notice a single police officer on the route. The witness has further deposed that he stopped at Richi Rich Red Light for 1015 seconds. He has admitted that normally between 9:00
- 10:00 AM there is rush on the Ring Road being pick hours and has voluntarily explained that the day of the incident was 2nd Saturday and offices were closed and there was not much rush. According to him, the scooter stopped just next to the front wheel of his car literally touching the same and has explained that the spot where he was compelled to stop is much ahead of the Shalimar Bagh bus stand and not in front of the same and has further voluntarily explained that it is about 57 feet ahead of the bus stand. According to the witness, there was nobody on the bus stand and has voluntarily explained that atleast he did not notice anybody. Witness has denied the suggestion that the spot where the incident took place is heavily congested area and has voluntarily explained that it is Ring Road with a moving traffic. He has denied the suggestion that when the incident took place both the assailants were wearing full mask helmets and hence he could not have identified them and has voluntarily explained that the pillion rider was not wearing any helmet and one who was driving was wearing a cap type helmet which did not have a front visor. Witness has admitted that he had become extremely perplexed and scared and could not note down the number of the scooter and has voluntarily added that anybody would have scared on seeing the revolver but the number he could not note down because he was sitting in the car. He has denied the St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 14 suggestion that he has wrongly identified the accused Sonu and Sunil Kumar on the asking and tutoring of the Investigating Officer only to work out the present case.
(12) According to the witness, he was telephonically informed regarding to the date to come to the Rohini Court for the purposes of TIP of the case property on which he reached at Rohini Court complex at around 12.30 PM in the afternoon and Investigating Officer met him in the Court and has voluntarily explained that TIP took place about one and half to two hours. He has also deposed that he was not with the Investigating Officer during this period. Witness has admitted that when he gave the details of the chain to the Investigating Officer he did not tell the design and its length and has voluntarily explained that even on the day of his deposition he cannot tell the length or the design of the chain but can only identify the same. Witness has further deposed that he does not recollect exactly but he think there must around 8 to 10 chains kept in front of Hon'ble Judge from which he had to identify his chain. Witness has denied the suggestion that from the other chains kept alongwith the case property during the judicial TIP his chain was the only one which was broken and has voluntarily explained that others were also broken. According to the witness, he did not count how many other chains were broken. He has denied the suggestion that he could identify his chain because it was the only chain which was broken. Witness has denied the suggestion that Ex.P1 is not the chain belonging to him which was robbed or that he has wrongly identified St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 15 as belonging to him. Witness has denied the suggestion that he was deposing falsely at the instance of Investigating Officer. He is unable to tell the denomination of the currency notes which has been robbed from him. Witness has denied the suggestion that because there was no robbery of currency notes therefore he cannot tell the denomination of the currency note.
(13) The witness has testified that it was a rainy season when the incident took place and front windows of the both sides of his car were in full open condition. According to the witness, he came on the Ring Road via Deep Market, Ashok Vihar, steel market of Ashok Vihar and then he took left turn for the ring road. The witness has also deposed that he did not pay attention to the signals of crossing while taking the left turn for the Ring Road and he was referring to the red light from where right turn is towards Shalimar Bagh. He has testified that he was driving his car between mid lane and extreme left lane of ring road. Witness has further clarified that the Richi Rich Red Light is a TPoint towards right. Witness has denied the suggestion that the said red light is signal free for vehicles on the left lane as it is TPoint. According to him the speed of his car was around 20 Km/Hour when he started from the red light. Witness has admitted that the incident took place after tentwelve steps from the red light. He has also admitted that after crossing the red light of Richi Rich, they have to take UTurn from Prembari Underpass to go to Azad Pur. He has denied the suggestion that the accused persons did not obstruct his way St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 16 or that he could have driven his vehicle as he had clear passage. Witness has further deposed that he saw the pistol when the pillion rider of the scooter put the pistol on his body and has voluntarily explained that the rear tyre of the scooter was just near the his driving seat window. The witness has also admitted that he was disturbed after seeing the pistol and his mind was blocked for a second. Witness has further deposed that the scooter driver came to the other front side of the car with his scooter but the scooter driver did not get down from the scooter and the accused who was having pistol forced him to open his briefcase which was lying on the rear seat of the car.
(14) Witness has admitted that in the incident the doors of his car were not opened. According to the witness, his car is an AStar Maruti LXI and there were power windows in his car which is also having central locking system but the same was faulty on the day of incident and is still faulty. Witness has also deposed that he picked his briefcase from the rear seat and the same was opened by him while he was sitting on driving seat on the directions of the accused who was having pistol. He has testified that he did not receive any injuries in the nature of scratches on his neck when his chain was snatched. According to the witness, he was aware of the total amount of cash which he was carrying but not the exact denomination of the currency notes and has voluntarily explained that he was aware that few carry notes were in denominations of Rs.1,000/ and some notes were in denomination of Rs.500/ and some currency notes of in denomination of St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 17 Rs.100/. Witness has further deposed that the currency notes were not in his purse and same were in front left pocket of his jeans pant. Witness has denied the suggestion that nothing could have been removed from his jeans because it would have been very tight because he was in sitting position and has voluntarily explained that when the accused asked him to hand over his money, he put his finger inside his pocket and was taking out the cash but before he could do so and hand over the same to him, he himself snatched the same from his fingers.
(15) Witness has testified that the said briefcase is with a simple code lock system and it was easily opened by him since no code was set by him for locking the same. He is unable to differentiate between pistol and revolver and states he cannot even differentiate between the real fire arm and a fake fire arm. Witness has denied the suggestion that accused never put any pistol upon him at the time of alleged incident or that the chain (Ex.P1) does not belong to him and has been planted in the case only to connect the accused with the offence. Witness has further denied the suggestion that the said chain (Ex.P1) has been deliberately cut with the plier to manipulate the evidence against the accused. He has also denied the suggestion that being the second Saturday there was no traffic on the road where the alleged incident took place was an industrial area and has voluntarily explained that the said spot is between the residential and industrial area.
St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 18 Police/ official witnesses:
(16) PW1 W/Ct. Sumitra is a formal witness being the DD Writer who has been examined by way of affidavit which is Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having recorded the DD No.09 which is Ex.PW1/A. (17) In her cross examination by the Ld. Defence Counsel the witness has deposed that she cannot tell the name, number and designation of the person who called from PCR. She has denied the suggestion that she did not hand over the DD No. 9A to the Investigating Officer of the case or that the above DD entry is ante timed and manipulated. (18) PW2 HC Satbir Singh is also a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the FIR No. 223/12 copy of which is Ex.PW2/A and endorsement on the rukka which is Ex.PW2/B. (19) In his cross examination by the Ld. Defence Counsel the witness has deposed that he did not contact SHO after receiving the rukka from Ct. Amit and on the basis of rukka he recorded the FIR through computer operator. He has further deposed that he took about 20 minutes for registration of the FIR. He has denied the suggestion that the above FIR is ante timed and manipulated.
St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 19 (20) PW3 HC Rishi Raj is a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the entry in register no.19 vide S.No. 3364 copy of which is Ex.PW3/A. (21) In his cross examination by the Ld. Defence Counsels the witness has deposed that Ct. Babu Lal deposited the pullanda of chain at about 4.00PM on 10.10.2012. He has admitted that he did not mention the time in the register no.19 about the depositing of pullanda in the Malkhana.
He has also denied the suggestion that the above entry in register no. 19 is ante timed and manipulated.
(22) PW4 W/Ct. Sonika Yadav is a formal witness being the PCR official who has been examined by way of affidavit which is Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.) wherein she has proved the PCR Form which is Ex.PW4/A. She has not been crossexamined by the Ld. Defence Counsels despite opportunity in this regard. (23) PW5 W/Ct. Geeta is a formal witness being the DD Writer who has been examined by way of affidavit Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.) wherein she has proved the DD No. 43B which is Ex.PW5/A. She has not been crossexamined by the Ld. Defence Counsels despite opportunity in this regard.
(24) PW6 W/HC Surinder is also a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW6/1 (as St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 20 per the provisions of Section 296 Cr.P.C.) wherein she has proved the FIR No. 170/12 of Police Station Bharat Nagar copy of which is Ex.PW6/A and DD No.16A copy of which is Ex.PW6/B. (25) In her cross examination by the Ld. Defence Counsel she has denied the suggestion that the above said FIR has been foisted upon the accused. She denied the suggestion that the above said FIR is ante timed and manipulated.
(26) PW7 HC Hukam Singh is also a formal witness being the DD Writer who has been examined by way of affidavit which is Ex.PW7/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the DD No. 18A copy of which is Ex.PW7/A. (27) In his cross examination by the Ld. Defence Counsles the witness has that name of SI Ved Prakash is not mentioned in the DD No. 18A. He denied the suggestion that the above DD entry is ante timed and manipulated.
(28) PW8 HC Veer Sein is a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW8/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the FIR No. 220/12 of Police Station Bharat Nagar copy of which is Ex.PW8/A. He has not been crossexamined by the Ld. Defence Counsels despite opportunity in this regard.
(29) PW9 HC Raj Pal is also a formal witness being the Duty St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 21 Officer of Police Station Bharat Nagar who has been examined by way of affidavit which is Ex.PW9/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the FIR No. 154/12 Police Station Bharat Nagar copy of which is Ex.PW9/A and endorsement on rukka which is Ex.PW9/B. He has not been crossexamined by the Ld. Defence Counsels despite opportunity in this regard.
(30) PW10 HC Mehfooz is also a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW10/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the entry in register No. 19 vide S.No. 801 copy of which is Ex.PW10/A (two pages) and entry in register no. 21 vide RC No. 88/21/12 of Police Station Bharat Nagar copy of which is Ex.PW10/B. He has clarified that the case property was deposited in the Malkhana of Police Station Bharat Nagar on 29.09.2012 but inadvertently it was written as 24.07.2012 in the affidavit. (31) In his cross examination by the Ld. Defence Counsels the witness has admitted that signatures of Ct. Babu Lal is not present in the register no.19 but Ct. Babu Lal put his signatures on the RC which is Ex.PW10/B. He has further admitted that time is not mentioned on the entries in register no. 19 and 21. He denied the suggestion that entries in register no. 19 and 21 are ante timed and manipulated.
(32) PW12 Sh. Kartik Nayak has brought the summoned record pertaining to case FIR No. 220/12, Police Station Bharat Nagar U/s St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 22 25/54/59 Arms Act and the Sanction under Section 39 Arms Act granted by Sh. S. Sarvananan, Addl. DCP, NorthWest District, to prosecute the accused Sunil copy of which is Ex.PW12/A. He has not been cross examined by the Ld. Defence counsel despite opportunity in this regard. (33) PW13 Sh. Sanjay Nagar has brought the summoned record pertaining to case FIR No.74/12, Police Station Bharat Nagar U/s 392/397/411/34 IPC having the original seizure memo of gold chain copy of which memo is Ex.PW13/A. He has also not been crossexamined by the Ld. Defence Counsel despite opportunity in this regard. (34) PW14 SI Ranbir Singh has deposed that on 27.09.2012 he was posted at Police Station Bharat Nagar and on that day on receipt of DD No. 16A, he reached Picnic Hut Park, Ashok Vihar on the road leading towards Sunder Lal Jain Hospital, where he met HC Rajeev, Ct. Darvesh and Ct. Jitender. According to him they had apprehended one person on a motorcycle bearing No. DL6SAF6288 who on interrogation disclosed his name as Sunil R/o House No. 10685, gali No. 8, Andha Mugal, Partap Nagar. Witness has further deposed that HC Rajeev also handed over to him a country made which he allegedly recovered from the possession of said person and he (witness) opened the katta and checked the same and found a live cartridge in the same. He has proved having prepared the khaka of the same which is Ex.PW14/A and measured the same and the total length of the country made pistol was found to be 23 cm, the length of St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 23 the barrel was 12.4cm, body was 9.6cm and butt was 7cm, the butt had a pital numa pati on both of sides of the butt. Witness has further deposed that he also prepared the khaka of the cartridge and measured the same and the said cartridge had a word 8mm KF76 written on the same. According to him on measurement it found to be total length of 7.8cm and having circumference (golai) of 1.3cm. He has proved that both the pistol and the cartridge were converted into a pullanda with the help of the same panni and a cloth and sealed the same with the seal of RS and he then prepared the seizure memo of the same which is Ex.PW14/B. The witness has testified that he filled up the FSL form and recorded the statement of HC Rajeev and converted the same into a tehrir by making endorsement on the same vide Ex.PW14/C and handed over the same to Ct. Jitneder for taking the same to the Police Station and getting the case registered. He has proved that he then took the motorcycle bearing No. DL6SAF6288 into possession and prepared its seizure memo vide Ex.PW14/D and also prepared the site plan which is Ex.PW14/E. According to him, after some time Ct. Jitender returned to the spot and handed over to him copy of the FIR bearing No. 220/12 and the original tehrir after which he arrested the accused Sunil vide memo Ex.PW14/F, conducted his personal search vide Ex.PW14/G and interrogated him and also recorded his disclosure vide Ex.PW14/H. The witness has also deposed that he recorded the statement of Ct. Jitender, HC Rajeev, Ct. Darvesh after which they came back to the Police Station where St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 24 the case property was deposited in the malkhana and the accused was sent by him to the hospital through Ct. Darvesh and Ct. Jitender for getting his medical examination conducted. The witness has testified that since in his disclosure statement the accused Sunil had given information of having committed four incidents/wardats out of which two were of their Police Station i.e. Police Station Bharat Nagar and one was of Police Station Ashok Vihar, therefore he informed ASI Arvind of their Police Station and on the next day sent information to Police Station Ashok Vihar of the same. Witness has further deposed that he also handed over the copies of the documents relating to apprehension, arrest and the proceedings conducted in his case to ASI Arvind and to the Investigating Officer of Police Station Ashok Vihar.
(35) The witness has correctly identified the accused Sunil in the court and also identified the country made pistol along with one live cartridge as the one which was handed over to him by HC Rajeev which were recovered from the accused, the country made pistol is Ex.P2 and the used cartridge is Ex.P3. It has been observed by this Court that the body of the same is of brass/ pital and the butt has a design of wood and brass with a brass knob towards the end and matches with the sketch Ex.PW14/A and the cartridge is also matching with the sketch Ex.PW14/A. The accused Sunil has not disputed the identity of motorcycle bearing No. DL6SAF6288 being registered in the name of his wife. St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 25 (36) In his cross examination by Ld. Defence counsel, the witness has deposed that he was not aware if the accused Sonu @ Kalia is informer of the police against the accused Sunil in various cases of DBG road of the year 2007 and 2008 relating to Section 395/397 IPC in which case the brother of Sunil was also involved. According to the witness he is not aware if Sonu has also been assisting the police as an informer in various cases of Bharat Nagar and Sarai Rohilla. He has denied the suggestion that Sunil in order to take revenge has falsely implicated and named Sonu @ Kalia in the present case to divert his offence on him. According to him after recording the disclosure of accused Sunil, he only checked his records to verify the same but not the correctness of the same in respect of the other accused are concerned.
(37) Witness has further deposed that he is not aware if Sunil had other cases pending against him from their Police Station itself and has voluntarily explained that he came to know about the cases later. According to him he is not aware if the accused Sunil also had a date before the DCP North where he had filed an application regarding harassment and threat of false implication. He has admitted that the motorcycle bearing No. DL6SAF6288 found to be belonging to the wife of the accused and registered in her name and has voluntarily explained that they came to know about this fact later after making inquiry. Witness has denied the suggestion that the above motorcycle was lifted by the police from the house of the accused and was falsely planted him to show his apprehension St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 26 at the spot. Witness has further denied the suggestion that the accused had gone to appear in the court of Sh. Raj Kapoor ASJ Tis Hazari in court No. 123 on 27.09.2012 after which he had gone to the chamber of his counsel when he was lifted from in front of chamber No. 133 and has voluntarily explained that the accused was apprehended at the barricade by the checking team. He has also denied the suggestion that the accused did not make any disclosure statement regarding involvement in the present case and has voluntarily explained that he had recorded whatever had been stated by the accused. He has also denied the suggestion that the accused Sunil had repeatedly telling them that he had been discharged in the other cases but he recorded his disclosure of his own regarding his involvement in the present case only to work out the same. He has further denied the suggestion that after the accused was lifted his mobile set was also snatched which mobile could have reflected the details of the calls made by him and has voluntarily explained that there is no question of taking away his mobile from his house since the accused was never lifted from his house as claimed by him. The witness has also denied the suggestion that no katta with live cartridge was recovered from the possession of accused Sunil or that the same was planted on him; that he carried out all the documentations while sitting in the Police Station on the directions of the senior police officials which documents were signed by the various police witnesses on instructions. He has however admitted that all the documents do not bear signatures of any public witness and that no public witness was joined in the St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 27 proceedings when the checking of the country made revolver was done and has voluntarily explained that he tried to join the public witnesses but they refused to join. Witness has further deposed that he cannot tell the details of the public witness who had refused to join the proceedings. He has admitted that he did not give them any legal notice for not joining the proceedings. He has denied the suggestion that no public witness has been shown to have join the proceedings because no such incident had taken place.
(38) PW 15 HC Rajeev Kumar has deposed that on 27.09.2012 he was posted at Police Station Bharat Nagar and was on picket checking duty along with Ct. Jitender and Ct. Dervesh opposite Picnic Hut Park, Ashok Vihar. According to the witness, on that day at around 12:35 PM (afternoon) while he was checking the vehicle, he saw one person was coming on his motorcycle from the side of Satyawati colony and on seeing them he had suddenly put the break on his motorcycle on which he found suspicious and hence they indicated him to stop. According to him thereafter they checked him and found that there was some hard object on the right side dub of his pant on the back side and he got suspicious on which he again check the same and found that it was a country made pistol which was put in a blue colored polythene. Witness has further deposed that he removed the same from his dub and took the same in his possession and also apprehended the said boy who on interrogation disclosed his name as Sunil Kumar R/o Andha Mugal, Partap Nagar. He has testified that he St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 28 immediately sent information to Police Station Bharat Nagar through the wireless set which he was carrying and after sometime SI Ranbir Singh came to the spot and he handed over to him the apprehended person along with the motorcycle bearing No. DL6SAF6288 and country made pistol wrapped in the polythene. He has further deposed that SI Ranbir tried to join threefour public persons in the proceedings but they refused and went away after which SI Ranbir interrogated the accused who disclosed his name as Sunil S/o Tulsi Ram R/o House No. 10685, Gali No. 8, Andha Mugal, Partap Nagar. He has proved that SI Ranbir opened the katta and checked the same and found a live cartridge in the same which he unloaded and he then prepared the khaka of the same which is Ex.PW14/A. According to the witness the total length of the country made pistol was found to be 23 cm, length of the barrel was 12.4cm, body was 9.6cm and butt was 7cm and the katta was of iron with a wooden panel on both the side and pital numa pati and knob on the same. According to him, SI Ranbir then prepared the khaka of the cartridge and measured the same and the said cartridge had the words 8mm KF76 written on the same and on measurement it found to be total length of 7.8cm and having circumference (golai) of 1.3cm. He has testified that both the pistol and the cartridge were converted into a pullanda with the help of the same panni and a cloth and sealed the same with the seal of RS which seal after use was handed over to Ct. Jitender. According to him SI Ranbir then prepared the seizure memo of the same which is Ex.PW14/B and SI Ranbir filled up the FSL form and St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 29 recorded his statement which is Ex.PW15/A which he (SI Ranbir) converted into a tehrir by making endorsement on the same. Witness has also deposed that SI Ranbir then handed over the same to Ct. Jitender for taking the same to the Police Station and getting the case registered. According to the witness, SI Ranbir then took the motorcycle bearing No. DL6SAF6288 into possession and prepared its seizure memo vide Ex.PW14/D and also prepared the site plan which is Ex.PW14/E. He has also deposed that after sometime Ct. Jitender returned to the spot and handed over to SI Ranbir copy of the FIR bearing No.220/12 and the original tehrir. Witness has further deposed that SI Ranbir then arrested the accused Sunil vide memo Ex.PW14/F, conducted his personal search vide memo Ex.PW14/G and recorded his disclosure statement which is Ex.PW14/H. He has also testified that SI Ranbir then recorded his statement and also the statements of Ct. Jitender and Ct. Darvesh after which they came back to the Police Station where the case property was deposited in the malkhana and the accused was sent by SI Ranbir to the hospital through Ct. Darvesh and Ct. Jitender for getting his medical examination conducted. He has also testified that since in his disclosure the accused Sunil had given information of having committed four incidents/ vardats out of which two were of their Police Station i.e. Police Station Bharat Nagar and one was of Police Station Ashok Vihar, therefore SI Ranbir informed ASI Arvind of their Police Station and on the next day sent information to Police Station Ashok Vihar of the same. St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 30 (39) According to the witness, on 29.09.2012 after the accused Sunil was granted the Police Custody Remand from the court of Ld. MM, he joined the investigations with ASI Arvind of Police Station Bharat Nagar and in the evening at around 55:30 PM they left the Police Station. He has also testified that the accused Sunil took them to Sector 20, Rohini House No. B2/255256, Sector 20, Rohini at the shop of Babaji Jewelers where at around 7:30 PM he pointed out towards one person sitting inside the shop as Kallan i.e. the person to whom he sells the stolen articles and on his pointing out the person was apprehended who on interrogation disclosed his name as Rajender @ Kallan. The witness has also deposed that ASI Arvind disclosed to Rajender what Sunil had told them and then interrogated Rajender who then got recovered two gold chains, one of which was having a locket of Cross and one chain was broken with an S type kundi on the same which chains he got recovered from the locker kept in front of him. Witness has further deposed that Rajender disclosed that the said chains had been given to him by accused Sunil and the accused Sunil identified the chain with the cross on it as robbed from near Mont Fort School whereas the broken chain had been robbed from Richi Rich Banquet hall, Ashok Vihar along with his associate. Witness has testified that ASI Arvind then prepared the arrest memo of Rajender vide Ex.PW15/B, his personal search was conducted vide memo Ex.PW15/C and recorded the disclosure statement of accused Rajender which is Ex.PW15/D. According to the witness ASI Arvind converted the chains into two separate pullandas with St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 31 the help of a cloth and sealed the same with the seal of AK and then prepared the two separate seizure memos of the chains. He has proved the seizure memo of the broken chain which is Ex.PW15/E and a kalandara/ proceedings U/s 102 Cr. P.C. in respect of the broken chain which proceedings are Ex.PW13/A. According to him, thereafter they returned to the Police Station where his statement was recorded by the Investigating Officer.
(40) The witness has correctly identified the accused Sunil and Rajender @ Kallan and also the case property i.e. one country made pistol which is Ex.P2, the used cartridge which is Ex.P3 and the chain which is Ex.P1 from the photographs which are Ex.PW15/F1 to Ex.PW15/F2. (41) With the permission of the Court, leading questions were put to the witness by the Ld. Addl. PP for the State wherein the witness has admitted that he joined the investigations with ASI Arvind Kumar of Police Station Bharat Nagar and that ASI Arvind recorded the disclosure statement of accused Sunil Kumar vide Ex.PW15/G on 27.09.2012 and also recorded his disclosure statement on 30.09.2012 vide Ex.PW15/H. Witness has further admitted that accused Sonu was arrested vide memo Ex.PW15/I, his personal search was taken vide Ex.PW15/J and his disclosure statement was recorded vide Ex.PW15/K. Witness has further admitted that pointing out memo at the instance of Sunil Kumar is Ex.PW15/L, arrest memo of accused Sunil Kumar in case FIR No. 170/12 Police Station Bharat Nagar is St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 32 Ex.PW15/N. He has also admitted that the motorcycle bearing No. DL1SN8218 make YAMAHA was seized by ASI Arvind Kumar at the instance of accused Sonu vide Ex.PW15/O. According to him, one TITAN watch was also seized by the Investigating Officer vide Ex.PW15/P. He has testified that the above said documents were prepared by ASI Arvind during the investigations of the case FIR No.170/12, Police Station Bharat Nagar and he put his signatures on these documents when the above said documents were prepared after the respective proceedings conducted by the Investigating Officer. He has further deposed that SI Ved Parkash Investigating Officer of this case recorded his statement two times. The witness has correctly identified the accused Sonu in the Court. (42) In his cross examination by Ld. Defence counsel the witness has deposed that he was posted at Police Station Bharat Nagar since the year 2010 and is not aware if the accused Sonu @ Kalia is informer of the police against the accused Sunil in various vases of DBG road of the year 2007 and 2008 relating to Section 395/397 IPC in which case the brother of Sunil was also involved. According to the witness, he is also not aware if Sonu has also been assisting the police as an informer in various cases of Bharat Nagar and Sarai Rohilla. He has denied the suggestion that Sunil in order to take revenge has falsely implicated and named Sonu @ Kalia in the present case for taking revenge from Sonu @ Kalia deliberately took his name to divert his offence on him. He is not aware if after recording the disclosure of accused Sunil, Investigating Officer had verified the contents St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 33 of what was disclosed and has voluntarily explained that in his presence SI Ranbir only checked the old records. Witness has further deposed that the accused Sonu was apprehended from bus stand near chowki No.2 which fact he has not mentioned in his examination in chief. It has been observed by this Court that the witness did not disclose anything till the public prosecutor put to him the details in leading questions. (43) According to the witness on 30.09.2012 at about 7AM he joined the investigations and they proceeded from the Police Station. According to him, the Investigating Officer ASI Arvind made the departure entry but he is unable to tell the DD number. Witness has further deposed that they proceeded in search of accused Sonu and SI Arvind was driving the vehicle whereas he himself was sitting on the side seat of the driver and the accused Sunil was sitting with Ct. Jitender. He has also deposed that they reached Andha Mugal market first but he is unable to tell from whom Investigating Officer inquired about accused Sonu. Witness has further deposed that from market they returned back and then stayed in the market for about 15 minutes. Witness has admitted that chowki no.2 bus stand is situated neat T point of main road and it is congested area with heavy traffic normally rush there. He has also deposed that they all were in uniform. He is unable to tell whether Investigating Officer tried to join any public witness nor can he tell which relative of the accused Sonu was informed about his arrest. He has denied the suggestion that he did not join the investigations of the case FIR No. 170/12 or that accused Sonu was lifted from his house and falsely St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 34 implicated. He has further denied the suggestion that the motorcycle of the accused Sunil was also lifted from his house or that all the proceedings were conducted at the Police Station.
(44) Witness has further deposed that he had joined the investigations along with ASI Arvind on 29.09.2012 and he did not make any separate departure entry when he went with ASI Arvind and has voluntarily explained that he must have made a combine entry details of which he cannot tell. According to the witness he along with Ct. Jitender, Ct. Dervesh had accompanied ASI Arvind and accused Sunil and they had taken the official gypsy details of which he cannot tell. He has further deposed that the said gypsy was driven by Ct. Dervesh and also by ASI Arvind. He is not aware if ASI Arvind had made any log book entry in the same. Witness has further deposed that the gypsy was parked near the shop Babaji jewelers in which the accused Rajender was found i.e. around five seven meters away from the shop and has voluntarily explained that there is a road in front of the shop. According to the witness, they all were in uniform. Witness has admitted that the place where the shop is situated is a commercial area and has stated that the Investigating Officer did not join any person from the adjoining shops in the proceedings. He has also deposed that Babaji jeweler is a corner shop but he cannot tell the details of the shop adjoining to the Babaji jeweler. He is unable to tell if there is any NDPL office and a temple adjoining the shop but states that he had noticed that part of the area was residential. According to him, the Investigating St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 35 Officer of the present case recorded his statement on 07.10.2012 in the Police Station and has voluntarily explained that ASI Arvind had recorded his statement on the said day. Witness has further deposed that he did not tell the Investigating Officer in the present case that the chain had been got recovered by Rajender from a locker kept in front of him. He has denied the suggestion that he did not join any investigations with ASI Arvind on 29.09.2012 or that the accused Sunil did not lead the police to Rajender @ Kallan at Sector 20, Rohini or that no recovery proceedings regarding the chains at the instance of Rajedner @ Kallan had taken place in his presence. Witness has further denied the suggestion that no disclosure statement of Sunil was recorded disclosing the name of Rajender @ Kallan or that the said disclosure was recorded by the Investigating Officer of his own merely to work out the same. He has further denied the suggestion that no disclosure had been made by Rajender @ Kallan or that the said statement was recorded by the Investigating Officer of his own only to justify the planting of the chains on him by showing it as recovery. According to the witness, he is not aware to whom the information of arrest of Rajender was given. Witness has denied the suggestion that Rajender was called on telephone to his shop when he was at Paschim Vihar and then lifted from his shop thereafter and falsely implicated in the present case. (45) The witness has further deposed that he is not aware that Sunil had other cases pending against him from their Police Station itself and has voluntarily explained that he came to now about the cases later. According St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 36 to the witness he is not aware if the accused Sunil also had a date before the DCP North where he had filed an application regarding harassment and threat of false implication. He is also not aware if the motorcycle bearing No. DL6SAF6288 found to be belonging to the wife of the accused and registered in her name. He has denied the suggestion that the above motorcycle was lifted by him from the house of the accused and was falsely planted him to show his apprehension at the spot. Witness has further denied the suggestion that the accused had gone to appear in the court of Sh. Raj Kapoor, ASJ, Tis Hazari in court No. 123 on 27.09.2012 after which he had gone to the chamber of his counsel when he was lifted by him from in front of chamber No. 133. Witness has also denied the suggestion that the accused did not make any disclosure statement regarding involvement in the present case or that the accused Sunil had repeatedly telling the Investigating Officer that he had been discharged in the other cases but the Investigating Officer recorded his disclosure of his own regarding his involvement in the present case only to work out the same and has voluntarily explained that whatever was stated by the accused was written by the Investigating Officer. He has denied the suggestion that after he lifted the accused his mobile set was also snatched which mobile could have reflected the details of the calls made by him and has voluntarily explained that there is no question of taking away his mobile from his house since the accused was never lifted from his house as claimed by him and he apprehended him on the picket. Witness has denied the suggestion that no St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 37 katta with live cartridge was recovered from the possession of accused Sunil or that the same was planted on him. He has also denied the suggestion that the Investigating Officer carried out all the documentations while sitting in the Police Station on the directions of the senior police officials which documents were signed by the various police witnesses on instructions. He has admitted that no public witness was joined in the proceedings when the checking of the country made revolver was done and has voluntarily explained that Investigating Officer had tried to join public witnesses but they refused to join. He is unable to tell the details of the public witness who had refused to join the proceedings. He has denied the suggestion that no public witness has been shown to have join the proceedings because no such incident had taken place or that on 29.09.2012 the accused Sunil did not take them any where to Sector 20 nor he got the accused Rajender @ Kallan identified and apprehended/ arrested. Witness has further denied the suggestion that no recovery of chains were got effected in the presence of the accused Sunil from the accused Rajender @ Kallan or that the recovery of the chains have planted on the accused to work out the present case or that the accused has been falsely implicated in the present case only to work out the same on account of official pressure. (46) PW16 Ct. Dravesh Kumar has deposed that on 27.09.2012 he was posted at Police Station Bharat Nagar and was on picket checking duty along with Ct. Jiender and HC Rajeev opposite picnic hut park, Ashok Vihar. According to the witness, on that day at around 12:35 PM while St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 38 they were checking the vehicles, they saw one person coming on his motorcycle from the side of Satyawati colony and on seeing them he suddenly put the break on his motorcycle which they found suspicious and hence HC Rajeev indicated him to stop. The witness has further deposed that thereafter HC Rajeev checked him and found that there was some hard object on the right side dub of his pant on the back side and they got suspicious and then again checked the same on which HC Rajeev found that it was a country made pistol which was put in a blue colored polythene. Witness has further deposed that HC Rajeev removed the same from his dub and took the same in his possession and also apprehended the said boy who on interrogation disclosed his name as Sunil Kumar R/o Anadha Mugal, Partap Nagar. According to him HC Rajeev immediately sent information to Police Station Bharat Nagar through the wireless set which he was carrying and after some time SI Ranbir Singh came to the spot and HC Rajeev handed over to him the apprehended person along with the motorcycle bearing No. DL6SAF6288 and country made pistol wrapped in the polythene. He has testified that SI Ranbir tried to join threefour public persons in the proceedings but they refused and went away after which SI Ranbir interrogated the accused who disclosed his name as Sunil S/o Tulsi Ram, R/o House No. 10685, Gali NO. 8, Andha Mugal, Partap Nagar. According to him SI Ranbir opened the katta and checked the same and found a live cartridge in the same which he unloaded and he then prepared the khakha of the same which is Ex.PW14/A after which SI St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 39 Ranbir measured the same. He has further deposed that the total length of the country made pistol was found to be 23cm, the length of the barrel was 12.4 cm, body was 9.6cm, butt was 7cm and the katta was of iron with a wooden panel on both the side and pital numa pati and knob on the same. According to him SI Ranbir then prepared the khaka of the cartridge and measured the same and the said cartridge had the words 8mm KF76 written on the same and on measure it found to be total length of 7.8cm and having circumference (golai) of 1.3 cm. Witness has further deposed that both the pistol and the cartridge were converted into pullanda with the help of the same panni and a cloth and sealed the same with the seal of RS which seal after use was handed over to Ct. Jitender and SI Ranbir then prepared the seizure memo of the same which is Ex.PW14/B. According to him, SI Ranbir filled up the FSL Form and recorded the statement of HC Rajeev Ex.PW15/A which was converted into a tehrir by making endorsement on the same and the same was handed over to Ct. Jitender for taking the same to the Police Station and getting the case registered. He has further testified that SI Ranbir then took the motorcycle bearing No. DL6SAF6288 into possession and prepared its seizure memo vide Ex.PW14/D and SI Ranbir also prepared the site plan which is Ex.PW14/E. The witness has also deposed that after some time Ct. Jitender returned to the spot and handed over to SI Ranbir copy of the FIR bearing No. 220/12 and the original tehrir and he arrested the apprehended accused namely Sunil vide memo Ex.PW14/F, conducted his personal search vide Ex.PW14/G and recorded St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 40 his disclosure statement vide Ex.PW14/H. According to him SI Ranbir then recorded his statement and also the statements of Ct. Jitender, HC Rajeev and they then came back to the Police Station where the case property was deposited in the malkhana and the accused was sent by SI Ranbir to the hospital through him and Ct. Jitender for getting his medical examination conducted. He has further deposed that since in his disclosure the accused Sunil had given information of having committed four incidents/ vardats out of which two were of their Police Station i.e. Police Station Bharat Nagar and one was of Police Station Ashok Vihar, therefore SI Ranbir inform ASI Arvind of their Police Station and accused Sunil was handed over to ASI Arvind who was conducting the investigations of case FIR No. 170/12 and on the next day send information to Police Station Ashok Vihar of the same. He has testified that the accused Sunil was arrested by ASI Arvind in his case vide Ex.PW15/N and his disclosure statement was also recorded by ASI Arvind vide Ex.PW15/G. He has also deposed that during investigations with ASI Arvind on 29.09.2012 accused Sunil was granted the police custody remand from the court of Ld. MM and he joined the investigations with ASI Arvind of Police Station Bharat Nagar. According to him, in the evening at around 55:30PM they left the Police Station and the accused Sunil took them to Sector 20 Rohini, House No. B2/255256, Sector 20, Rohini at the shop of Babaji jewelers were at around 7:30 PM the accused Sunil pointed out towards one person sitting inside the shop as Kallan i.e. the person to whom he used to sell the stolen St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 41 articles. The witness has proved that on the pointing out of the accused Sunil, the person was apprehended who on interrogation disclosed his name as Rajender @ Kallan and ASI Arvind told Rajender what Sunil had told them and then interrogated Rajender who got recovered two gold chains, one of which was having a locket of cross and one chain was broken with an S type kundi on the same which chains he got recovered from the locker kept adjoining i.e. on the left side. Witness has further deposed that Rajender disclosed that the said chains had been given by him to Sunil and the accused Sunil who was with them identified the chain with the cross on it as robbed from near Mont Fort School whereas the broken chain as robbed from Richi Rich Banquet Hall, Ashok Vihar along with his associate. He has also deposed that ASI Arvind then prepared the arrest memo of Rajender vide Ex.PW15/B, his personal search was conducted vide memo Ex.PW15/C and the disclosure statement of accused Rajender was recorded vide Ex.PW15/D. He has proved that ASI Arvind converted the chains into two separate pullandas with the help of a cloth and sealed the same with the seal of AK and then prepared two separate seizure memos of the chains and the broken chain was seized vide memo Ex.PW15/E. According to the witness, he also prepared a kalandara/ proceedings U/s 102 Cr.P.C. in respect of the broken chain which proceedings are Ex.PW13/A and thereafter they returned to the Police Station and his statement was recorded by the Investigating Officer. The witness has St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 42 further proved that that on 30.09.2012 he again joined the investigations along with ASI Arvind, Ct. Jitender & HC Rajeev when at the instance of accused Sunil another accused namely Sonu was apprehended in front of chowki No.2 Near Bus Stand, Sarai Rohilla and was arrested vide memo Ex.PW15/I, his personal search was taken vide Ex.PW15/J and the Investigating Officer interrogated the accused Sonu separately in the presence of HC Rajeev. According to the witness, the accused Sonu pointed out the place of incident vide memo Ex.PW15/M. He has further deposed that the accused Sonu was found in possession of one motorcycle bearing No. DL1SN8218 make YAMAHA which was also seized by the Investigating Officer vide seizure memo Ex.PW15/O and on the accused Sunil also pointed out the place on the day when he was arrested on 27.09.2012 and a pointing out memo was prepared at his instance which is Ex.PW15/L. He has proved that his statement was recorded by the Investigating Officer.
(47) The witness has correctly identified the accused Sonu, Sunil and Rajender @ Kalan in the Court and also identified the case property i.e. one country made pistol which is Ex.P2, the used cartridge which is Ex.P3 and the chain which is Ex.P1 from the photographs which are Ex.PW15/F1 to Ex.PW15/F2.
(48) This witness has been crossexamined on the same lines as that of SI Ranbir Singh (PW14), HC Rajeev Kumar (PW15) and Ct. Darvesh St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 43 (PW16) and there are no material contradictions.
(49) PW17 Ct. Amit Kumar has deposed that on 08.09.2012 he was on Emergency Duty from 8AM to 8PM and at about 9:40 PM on receipt of DD No. 9 PP he along with the SI Ved Prakash reached at outer Ring Road in front of Richi Rich Banquet Hall where they met complainant Praveen Prarashar on which SI Ved Prakash recorded his statement and prepared the tehrir and handed over the said tehrir to him for registration of FIR. According to the witness, he took the tehrir and went to the Police Station and handed over the same to the Duty Officer who after registration of the FIR handed over him the copy of FIR and original tehrir which he took to the spot in front of Richi Rich Banquet Hall and handed over the same to SI Ved Prakash.
(50) In his cross examination by Ld. Defence counsels, witness has deposed that they reached in front of Richi Rich Banquet Hall at around 10 AM and he was on his private bike whereas SI Ved Prakash was in official gypsy. According to him HC Yogesh had also accompanied SI Ved Prakash and when they reached the spot the complainant Praveen Parashar was alone and there was no public person. Witness has admitted that the area in question is thickly populated and has voluntarily explained that it is a motorable road with heavy moving traffic and hardly anybody stops. Witness has denied the suggestion that there is also a public picket where the complainant was found. According to him when they saw the complainant he was perplexed and scared (ghabray hue thai). Witness has St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 44 denied the suggestion that complainant had not disclosed about the number of assailants or their description or the Investigating Officer had incorporated the same of his own later on and has voluntarily explained that he had given the details of the assailants. Witness has further deposed that he was aware of what the complainant had told SI Ved Parkash because he was standing there. According to him him, the tehrir was written by SI Ved Prakash in his handwriting. Witness has admitted that it does not bear his signatures. According to the witness he started from the spot at around 11:30 AM and reached the Police Station Ashok Vihar at around 11:45 AM and has voluntarily explained that he was on his bike. Witness has denied the suggestion that he did not accompany SI Ved Prakash or that the tehrir was written much later after due deliberation in the Police Station or that the FIR was antidated and antitimed.
(51) PW18 ASI Arvind Kumar has deposed that on 29.09.2012 he was posted at Police Station Bharat Nagar and on that day Sunil S/o Tulsi Ram was present with him in police custody remand in FIR No.17012, Police Station Bharat Nagar, U/s 392/397 IPC. According to the witness, Sunil has made a disclosure on 27.09.2012 vide Ex.PW15/G that he along with his associate Sonu @ Kalia had robbed one motorist near Mountfort school of his belongings comprising of his watch, chain and cash and also disclosed that he can get arrested Sonu @ Kalia. The witness has further deposed that the accused Sunil had also disclosed that he had handed over the said chain to one Kallan Sunar having his shop at Sector 20 Rohini and St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 45 he could get the said chain recovered. The witness has testified that he along with Ct. Rajiv, Ct. Darvesh and Ct. Jitender along with accused Sunil reached at Sector 20 Rohini where the accused Sunil took them to one shop of the jeweler which was being run by the name of Babaji Jeweler situated at 255/256 Sector 20 Rohini and there the accused Sunil pointed out towards one person sitting in the shop as Kallan, who was apprehended. Witness has further deposed that during interrogation the said person disclosed his name as Rajender @ Kallan S/o Suresh R/o 255/256 Sector 20 Rohini and further disclosed that Sunil used to sell him gold articles. The witness has testified that the accused Rajender then got two chains recovered from his iron alimrah/locker and both the chains appeared to be of gold and one chain was bearing the locket of cross and the other chain was broken into two pieces with S / 8 shaped kundi/ lock. According to him, the accused Sunil disclosed that the chain which was having cross locket had been robbed by him from Montfort School and the other chain was robbed by him from a motorist in front of Richi Rich Banquet. He has proved having arrested the accused Rajender vide memo Ex.PW15/B, his personal search was carried out vide Ex.PW15/C and his disclosure statement was recorded vide Ex.PW15/D. According to the witness, Ranbir Singh then converted both the chains in a cloth pullanda and sealed the same with the seal of AK and handed over the seal after use to Ct. Darvesh after which the Investigating Officer converted both the chains in a cloth pullanda and sealed the same with the seal of AK and handed over the St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 46 seal after use to Ct. Darvesh and he then prepared the seizure memo of both the chains separately. Witness has proved the seizure memo of the broken chain which is Ex.PW15/E and the Investigating Officer then prepared the kalandra/proceedings with regarding the said broken chain which proceedings is Ex.PW13/A. He has testified that he then tried to search the accused Sonu but he could not be found after which they returned to the Police Station and the case property was deposited in the Malkhana after which the accused Rajender was sent to the hospital for his medical examination through Ct. Rajiv and Ct. Darvesh after which he was put into the lock up. Witness has also deposed that on 30.09.2012 they again went to Andha Mugal in search of the accused Sonu since Sunil told them that he could get him apprehended from there but they could not find Sonu at Andha Mugal and while they were returning to Police Station, on the way at chowki No. 2 near Bharat Nagar Ganda Nala at 9:30 AM, the accused Sunil pointed out towards one boy sitting on a motorcycle parked near DTC bus stand. Witness has further deposed that the accused Sunil Kumar informed them that the said boy Sonu was his associate with whom he had committed the various robberies and hence at his instance the said person was apprehended who on interrogation disclosed his name as Sonu @ Kalia. According to him, on interrogation the accused Sonu disclosed his involvement in the present case and further informed that in respect of the incident which they had committed near Montfort School, the watch which they had robbed from the victim has fallen in his share and he was wearing St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 47 the same. He has proved that on personal search of the accused Sonu @ Kali he was found to be wearing the watch make Titan of steel color. The witness has further deposed that the accused Sonu was arrested vide Ex.PW15/I, his personal search memo was prepared vide memo Ex.PW15/J and his disclosure statement was recorded vide memo Ex.PW15/K. According to the witness, the accused Sonu then pointed out spot of incident in front of Montfort School vide pointing out memo Ex.PW15/M and the motorcycle in which he was sitting bearing No. DL1SN8218 make Yamaha was seized vide memo Ex.PW15/O. The witness has also deposed that the watch make Titan was converted into pullanda with the help of cloth and sealed with the seal of AK and after use the seal was handed over to Darvesh and the said watch was seized vide memo Ex.PW15/P. The witness has proved that thereafter he interrogated the accused Sunil at length on 30.09.2012 who made a detailed disclosure statement wherein he gave details of large number of his other involvements which statement he recorded vide Ex.PW15/G. According to the witness, he sent an information to Police Station Ashok Vihar regarding disclosure of the accused regarding his involvement in the case of FIR No. 223/12 of Police Station Ashok Vihar and recovery of the broken chain. He has further deposed that he may clarify that during the entire proceedings both the accused Sunil and Sonu were kept in muffled faces. The witness has correctly identified the accused Sunil and Sonu in the Court. St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 48 (52) In his cross examination by Ld. Defence counsels, the witness has denied the suggestion that Sonu had been falsely implicated by them and he had been repeatedly telling them that he was an informer of the police and had got accused Sunil apprehended on a previous occasion in relation to cases of DBG road. He has further denied the suggestion that Sonu had also claimed himself to be an informer of Police Station Sarai Rohilla and Police Station Bharat Nagar. According to him they left the Police Station at about11 AM on 29.09.2012 and he made DD entry but he cannot tell the DD number. Witness has denied the suggestion that he has not made any DD entry because he had not gone Sector 20 Rohini. The witness has also deposed that he along with HC Rajeev, Ct. Darvesh, Ct. Jitender and accused Sunil went to Sector 20 in government gypsy bearing No. DL1CJ7426 but he did not made any log book entry in the log book of above said gypsy. Witness has admitted that the said gypsy belongs to SHO Police Station Bharat Nagar and that a driver is also posted on the gypsy and has voluntarily explained that when required any one can drive the said gypsy. Witness has also deposed that he of his own drove the said gypsy firstly but he cannot tell the sitting arrangement in the gypsy. According to the witness they parked their gypsy about 50 meters from Baba jewelers and they all were in uniform. Witness has admitted that there are commercial and residential area near Baba Jewelers. Witness has further deposed that the Babaji jeweler is a corner shop but he cannot tell the details of the shop adjoining to the Babaji jeweler. He has testified that St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 49 he did not notice if there was any NDPL office and a temple adjoining the shop but states that he had noticed that part of the area was residential. According to him he did not tell the Investigating Officer in the present case that the chain had been got recovered by Rajender from a locker/almirah kept adjoining and has voluntarily explained that it was a counter type locker which had been constructed on the side of the sitting space. He has testified that they reached at Sector 20 Rohini at about 6:307 PM. Witness has denied the suggestion that the accused Sunil did not lead the police to Rajender @ Kallan at Sector 20, Rohini or that no recovery proceedings regarding the chains at the instance of Rajender @ Kalan had taken place in his presence. According to him the information of arrest of Rajender was given to his wife on telephone. Witness has further deposed that he is not known to any Rajesh Kumar of JJ colony Wazirpur who is a jeweler by profession and running a shop under the name and style of Nitin Swarnkar. He has denied the suggestion that Rajesh Kumar is his friend. Witness has further deposed that he is not aware if this Rajesh Kumar is the brother of Rajesh and also a witness in a case U/s 498A/406 IPC where he is the Investigating Officer. He is not aware if accused Rajesh Kumar has a dispute with his brother Rajesh Kumar. According to the witness, he did not prepare any handing over memo of seal to Ct. Darvesh nor the return memo of the same. The witness has also deposed that on 30.09.2012 they started from the Police Station at 66AM and he had made the departure entry in respect of the same but he does not recollect its number. He has St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 50 testified that they had gone to a large number of places i.e. Pratap Nagar, Bara Hindu Rao, Andha Mughal etc. which were disclosed by accused Sunil but he cannot tell the details. He has also deposed that first of all they had gone to Andha Mugal at gali No. 6, gali No. 8 and many other places where accused Sunil took them and he did not meet any person there specifically and therefore he cannot tell any body's name. Witness has denied the suggestion that chowki No. 2 is a congested area and has voluntarily explained that it is an open area with moving traffic on both sides of the road. Witness has also deposed that the spot where the accused Sonu was apprehended does not have a school or residential houses and has voluntarily explained that it is a road with moving traffic. According to him, he had tried to join some passer byes in the proceedings but they refused and he cannot tell their names and details because they did not disclose nor did he give any notice to these public persons. The witness has admitted that the accused Sunil was not apprehended in his presence and has voluntarily explained that he was handed over to him on police remand after he had made a disclosure regarding his involvement in the case which he was investigating. He has admitted that no public witness was joined at the time of alleged apprehension of Sonu and Rajender @ Kallan. He has denied the various suggestions put to him by the Ld. Defence Counsels. (53) PW19 Ct. Babu Lal has deposed that on 03.10.2012 he was posted in Police Station Ashok Vihar and had come to the Rohini Court Room No. 102 along with SI Ved Prakash as the accused Sunil S/o Tulsi St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 51 Ram had to be produced in the Court. According to the witness, after taking permission from the Court, the accused Sunil was interrogated in the Court itself and thereafter the accused was arrested vide memo Ex.PW19/A and SI Ved Prakash recorded his disclosure statement vide Ex.PW19/B. He has further deposed that thereafter accused Sunil was put in muffled face and was sent to the lock up after which his statement was recorded by SI Ved Prakash. The witness has testified that on 10.10.2012, he accompanied SI Ved Prakash to Rohini Court Complex at Room No. 201 where the accused Sonu @ Kalia and Rajender were being produced pursuant to the production warrants and after taking the permission from the Court, both the accused persons were interrogated in the Court, after which, they were arrested and their disclosure statement were recorded by SI Ved Prakash. He has proved the arrest memo of accused Sonu @ Kalia which is Ex.PW19/C, disclosure statement of accused Sonu which is Ex.PW19/D; arrest memo of accused Rajender which is Ex.PW19/E and disclosure statement of accused Rajender which is Ex.PW19/F. He has correctly identified the accused Sunil, Sonu and Rajender in the Court. (54) In his cross examination by Ld. Defence counsel, the witness has deposed that they had reached the Court around 2:00 PM and it was after 1520 minutes that the permission to interrogate the accused was given. According to him, the interrogation of the accused was conducted while sitting in the Court Room and in his presence SI Ved Prakash did not St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 52 join any Court Staff or litigant/public person or advocate during the interrogation of the accused. According to the witness, the disclosure statement of the accused was recorded by the Investigating Officer in the Court Room and it took around 15 minutes to record the statement by the Investigating Officer. Witness has denied the suggestion that no interrogation was conducted by the Investigating Officer inside the Court Room as claimed by him or that Investigating Officer of his own recorded the disclosure statement of the accused Sunil. Witness has also denied the suggestion that the signatures of the accused were taken on the blank papers which were converted into various memos later on. According to the witness, he did not make any separate ravangi in the Police Station and has voluntarily explained that combined entry was made by SI Ved Prakash but he is unable to tell the number or the details of the said entry. Witness has denied the suggestion that while accompanying SI Ved Prakash the complainant Praveen Parashar also accompanied him. According to him Information regarding arrest of accused Sunil was given to his wife Babita. He has further deposed that on 10.10.2012 they had reached the Court around 12:30 PM and it was after ten minutes that the permission to interrogate the accused persons was given and the interrogation of the accused was conducted while sitting in the Court Room. According to the witness in his presence SI Ved Prakash did not join any Court Staff or litigant/ public person or Advocate during the interrogation of the accused Sonu and Rajender. Witness has further deposed that the disclosure St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 53 statement of the accused Sonu and Rajender was recorded by the Investigating Officer in the Court Room and it took around 1520 minutes to record the statement by the Investigating Officer. Witness has denied the suggestion that no interrogation was conducted by the Investigating Officer inside the Court Room as claimed by him. Witness has also denied the suggestion that Investigating Officer of his own recorded the disclosure statements of the accused Sonu and Rajender or that the signatures of the accused persons were taken on the blank papers which were converted into various memos later on. According to him, he did not make any separate ravangi in the Police Station and has voluntarily explained that a combine entry was made by SI Ved Prakash. He is unable to tell the number or the details of the said entry. Witness has denied the suggestion that while accompanying the SI Ved Prakash the complainant Praveen Parashar also accompanied him and the accused were shown to him. He has also deposed that the information regarding the arrest of accused Sonu was given his wife Seema and the information regarding the arrest of accused Rajender was given to his wife Shalu, both of whom had come to the Court. (55) PW20 SI Ved Prakash has deposed that on 08.09.2012 he was posted as SI in Police Station Ashok Vihar and was Incharge Police Post WPI and on that day, he was marked a call bearing DD No. 9 PP which is Ex.PW1/A. Witness has further deposed that on receipt of the same, he along with Ct. Amit reached in front of Richi Rich Banquet Hall where the complainant Praveen Parashar met him along with his vehicle AStar black St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 54 colour car and he informed him that a robbery had taken place with him at red light of Richi Rich Banquet Hall, Ring Road in which two boys had come on a two wheeler scooter and after compelling him to stop one boy came towards him and put a katta on his chest whereas the other boy covered him from the other side of the car by coming towards the front gate of the seat next to the driver seat. According to the witness the complainant further informed that the person who had put the katta on his chest, snatched his gold chain and removed Rs.21,000/ from the pocket of his pant. He has proved having recorded the statement of Praveen which is Ex.PW11/A on which he made his endorsement vide Ex.PW20/A and converted the said statement into a rukka which he handed over to Ct. Amit with directions to take the same with Police Station to register the FIR. Witness has further deposed that he then prepared the site plan at the instance of victim Praveen Parashar which is Ex.PW20/B and in the meanwhile, Ct. Amit returned back to the spot and handed over the copy of FIR and original rukka to him. The witness has also deposed that the complainant Praveen Parashar informed him that the persons who had committed the incident with him had gone to the Azad Pur side on which he alongwith Ct. Amit and complainant Praveen Parashar went to the Azad Pur side to search for the accused but could not locate them. He has testified that he he then took the complainant to the Police Station and showed him the dossiers of the various criminals of the area and from the said dossiers/ photographs, the complainant Praveen Parashar could identify the accused St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 55 Sunil as one of the assailants. According to the witness, Sunil is having large number of involvements and his dossier is available on the system. He has proved having recorded the supplementary statement of complainant Praveen Parashar and the statement of Ct. Amit and relieved them. He has further deposed that on 14.09.2012, the complainant Praveen Parashar came to him and informed him that in his initial statement given to him he had mentioned the weight of the gold chain snatched by the accused as 10 gms whereas it was actually 16 gms which fact he came to know after the discussion with his family on which he (witness) recorded his supplementary statement in this regard.
(56) The witness has further deposed that on 28.09.2012 SI Ranbir Singh of Police Station Bharat Nagar gave information to their Police Station vide DD No. 43B that Sunil had been apprehended in one Arms Act case and during investigations had disclosed his involved in the present case of robbery. According to the witness, he then went with SI Ranbir Singh and took the photocopy of disclosure statement of the accused Sunil in the said case alongwith the copies of FIR, seizure memos and statements of the other witnesses of the raiding party. The witness has also deposed that he also recorded the statement of SI Ranbir Singh and on 29.09.2012 he recorded the statements of other persons of the raiding party in the FIR of Police Station Ashok Vihar. He has further deposed that on 30.09.2012 ASI Arvind from Police Station Bharat Nagar vide DD No.18A which is Ex.PW7A informed that the case property i.e. gold chain stolen in the St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 56 present case had also been recovered accused Rajender @ Kallan and on 07.10.2012 he recorded the statements of ASI Arvind and other witnesses connected with the recovery. The witness has testified that on 01.10.2012 he filed an application before the Area MM for production of the accused Sunil which application was allowed for 03.10.2012 and on 03.10.2012, he moved an application before the Area MM for interrogation of accused Sunil which was allowed. He has also deposed that thereafter he interrogated the accused Sunil in the Court Complex itself outside the Court Room while sitting on the benches lying on the corridor and after interrogation, he arrested the accused Sunil vide memo Ex.PW19/A and also recorded his disclosure statement vide Ex.PW19/B. On a specific Court question the witness has deposed that the accused Sunil was produced in the Court in muffled face. He has further deposed that thereafter the accused got remanded for Judicial Custody and he moved an application before the Area MM for conducting his judicial TIP which was fixed at Tihar Jail for 04.10.2012. Witness has further deposed that on 04.10.2012, he went to the Tihar Jail along with complainant whereas the complainant correctly identified the accused Sunil in the TIP proceedings. He has proved the application filed by him for conducting the TIP which is Ex.PX1 and the TIP proceedings are Ex.PW11/C. According to him after the TIP, he moved an application before the Area MM to supply the copy of the same which is Ex.PX2 which application was allowed and he obtained the copy. He has testified that he thereafter moved an application before the St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 57 Area MM seeking production of the accused Sunil and Rajender who were already in Judicial Custody in some other case and initially, on the date fixed by Ld. MM the accused did not appear and hence, he had to again move a request for the same and it was on 10.10.2012 when the accused Sonu and Rajender were produced before the Area MM in muffled face and he then obtained the permission from the Ld. Magistrate to interrogate them and after the permission was granted, he interrogated both accused Sonu and Rajender in Court complex and got recorded their disclosure statement. He has proved the arrest memo of the accused Sonu @ Kalia which is Ex.PW19/C; disclosure statement of Sonu which is Ex.PW19/D; arrest memo of the accused Rajender which is Ex.PW19/E and his disclosure statement which is Ex.PW19/F. According to him the accused Rajender was got remanded to Judicial Custody whereas the accused Sonu was produced before the Area Magistrate in a muffled face and he made a request to conduct the judicial TIP but the accused Sonu refused for the same. He has proved his request to the Ld. Area Magistrate which is Ex.PX6 and the TIP proceedings regarding the refusal are Ex.PX7 (not disputed by the accused Sonu) and his request for obtaining the copy of the same which is Ex.PX8 and during the proceedings, the accused Sonu @ Kalia had unmuffled himself in the Court and he was then got remanded to JC. Witness has further deposed that as soon as he came out the Court Room, the complainant who had come to the Court to meet him, informed St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 58 him that the accused Sonu whom he had produced in the court was the same boy who was driving the scooter. According to him thereafter, the complainant was relieved from the Court itself and he then returned to Police Station Bharat Nagar and got the recovered gold chain transferred from Police Station Bharat Nagar to Police Station Ashok Vihar vide a road certificate.
(57) The witness has also deposed that on 11.10.2012 he moved an application Ex.PX3 for getting conducting the TIP of the case property which was allowed and the TIP proceedings of the gold chain are Ex.PW11/D in which the complainant correctly identified the case property. According to him he then moved before the Ld. MM to obtain the copy of the same which was allowed, which application is Ex.PX4 and he then returned to the Police Station and deposited the case property in the malkhanana. Witness has further deposed that he collected the PCR Form and also added Section 413 against accused Rajender and after completion of investigation, he filed the charge sheet in the Court. He has correctly identified the accused persons Sunil, Sonu and Rajender in the Court and also identified the case property i.e. the gold chain from the photograph Ex.PW15/F1 & PW15/F2 which chain is Ex.P1.
(58) In his cross examination by Ld. Defence counsels, the witness has deposed that on 08.09.2012 after receiving DD No.9 PP, he went for its compliance and at 9:40 AM, he received DD No. 9 PP he proceeded to Richi Rich in a government gypsy but he is not aware the number of gypsy. St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 59 According to him there were three gypsy with Police Station Ashok Vihar and he went by own driving gypsy. Witness has further deposed that he did not make any entry in log book of gypsy and about fiveseven minutes, he reached at Richi Rich where he found complainant with his vehicle (car) only. According to him the first underpass which comes on the Ring Road while coming from Richi Rich towards Wazirpur is on the left side which is called the Prembadi Underpass which is hardly 300400 meters away from Richi Rich. He has admitted that this road from Richi Rich to Prembadi Underpass had curved and that the road is elevated on the canal before the Prembadi Underpass. He has however denied the suggestion that the Prembadi Underpass is slightly visible from the Richi Rich red light. Witness has further deposed that after his reaching at Richi Rich, he did not record statement of any other person and remained there till 11:40 AM and has voluntarily clarified that he had left the spot but was present in the area. According to the witness, they checked Azad Pur Flyover and Prembadi Underpass and he went there in his gypsy and complainant and Ct. Amit were with him and he inquired about the culprits on both the places. He is unable to tell the name, designation, address of any person, he found at Azad Pur Flyover or Prembadi Underpass. Witness has admitted that Adarsh Nagar Police Station is situated at Azad Pur Chowk and that a traffic booth is situated at Prembadi Underpass. He has also admitted that police officials are deputed on these places and that the signature of complainant is not mentioned in site plan. He has denied the suggestion that St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 60 he has prepared the site plan later on while sitting in Police Station on his own. Witness has further deposed that in site plan, on North direction he has mentioned the road which leads Kela Godown and Fortis Hospital and situated opposite All Heaven Restaurant. He has also admitted that no crossing (chowk) is mentioned at point B in site plan. Witness has further deposed that at 11:30 AM, Ct. Amit proceeded to Police Station Ashok Vihar with rukka for getting the FIR registered and after 40 minutes of his departure, he returned. According to him Ct. Amit went and returned on his bike but he can not tell the number of bike of Ct. Amit and he even does not know the make of bike. He is unable to tell the name of family members from whom complainant asked the weight of alleged gold chain and states that the complainant did not give him any receipt/ bill of his alleged gold chain and he asked the complainant about the bill but he said that it is untraceable at this time. According to the witness, perhaps the said chain was given to him by his any relative but he does not given the name and relation of the said relative and he never met the said relative of complainant. Witness has denied the suggestion that the complainant had not alleged gold chain or that no chain was robbed from the complainant. He has admitted that he did not send the alleged gold chain of complainant to FSL for establishing the fact whether it was broken by snatching or cut with the plier or there is any tension in the chain as the sign of snatching. Witness has denied the suggestion that the alleged chain of the complainant has been cut with the plier or that the alleged gold chain has been planted St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 61 upon the accused after manipulation only work out the present case. He has further deposed that the complainant did not tell the denomination of the alleged currency notes and he also did not inquire from the accused about the denomination of the currency notes. Witness has denied the suggestion that no alleged currency notes were robbed from the complainant. He has admitted that he did not seize the car of the complainant and that he had not called the crime team on spot to detect the finger prints from the car of the complainant. Witness has further deposed that accused Sunil was arrested first time in case FIR No. 220/12 U/s 25 Arms Act of Police Station Bharat Nagar and accused Sonu @ Kalia and accused Rajender were arrested vide FIR No. 170/12 U/s 392/34 IPC at Police Station Bharat Nagar. According to the witness, accused Sunil was arrested by SI Ranbir Singh on 27.09.2012 and the arrest of accused Sunil was carried out near the park situated near Sunder Lal Jain Hospital in the jurisdiction of Police Station Bharat Nagar. He is not aware from where the accused Sunil was coming and in which direction he wanted to go. Witness has further deposed that accused Sunil was apprehended by HC Rajiv, Ct. Jitender and Ct. Darvesh of Police Station Bharat Nagar. According to him accused Sunil Kumar was riding a bike but he can not tell the number of bike. He is unable to tell the date on which accused Sonu was arrested in case FIR No. 170/12 of Police Station Bharat Nagar and states that he was arrested by ASI Arvind of Police Station Bharat Nagar. He is not aware the place from where the arrest of accused Sonu was carried out. Witness has admitted that he had St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 62 not visited the place from where the arrest of accused Sonu was carried out and that he did not record the statement of any independent witness of this alleged arrest. Witness has denied the suggestion that the arrest of accused Sonu is manipulated or that the accused Sonu was arrested from his house. (59) Witness has further deposed that he is not aware the place from where the arrest of accused Rajender was carried out. He has admitted that he had not visited the place from where the arrest of accused Rajender was carried out and that he did not record the statement of any independent witness of this alleged arrest. He has denied the suggestion that the arrest of accused Rajender is manipulated or that accused Rajender was arrested from his house. He is unable to tell the dates on which the recovery of alleged gold chain was carried out and the date of arrest of accused Rajender. Witness has further deposed that at the time of TIP of gold chain, the complainant was directed to come to the Court and he along with case property went to the Court at about 12:30 PM for TIP of case property and the complainant was already present there in the Court Complex outside the Court. He has denied the suggestion that at that time, he had shown the case property to the complainant. According to him at the time of TIP of case property, he was having alleged gold chain of complainant with five six artificial chains and about 50% of the chains which were given for mixing up with the original case property during the judicial property of the case property were in broken condition. He has denied the suggestion that only the gold chain is broken and could have been easily identified and St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 63 hence identified by the complainant in the judicial TIP because of this reason. Witness has admitted that the dossier of accused Sonu might be available at the site of Delhi Police. He has denied the suggestion that accused Sonu was already shown to the complainant in dossier. He has admitted that on 10.10.2012 at the time of production of accused Sonu in the Court on his production application, several persons, advocates and court staff were available. Witness has further deposed that the interrogation of the accused was conducted while sitting outside the Court Room in the Corridor and the disclosure statement of the accused was recorded by him in the corridor and it took around ten minutes to record the statement by him. Witness has denied the suggestion that he of his own recorded the disclosure statement of the accused Sunil or that the signatures of the accused were taken on the blank papers which were converted into various memos later on. According to him information regarding arrest of accused Sunil was given to his wife Babita and he had also interrogated accused Sonu and Rajender outside the Court Room on 10.10.2012. Witness has further deposed that on the said day also no public witness, litigant or court staff was joined during the investigation. Witness has also deposed that he had given the information regarding the arrest of accused Sonu and Rajender to their wives and he had not given any prior notice to the families of accused Sunil, Sonu or Rajender regarding their production in the Court. Witness has denied the suggestion that no information was given to the family members of the accused as claimed by him as they were St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 64 never present in the Court. According to the witness he did not cross check the version of the complainant whether he was telling truth or telling lie. Witness has admitted that he was not aware about the Delhi High Court Rules regarding criminal investigation. He has denied the suggestion that all the proceedings were conducted in Police Station after due manipulation or that the facts and evidence favouring the accused did not place on record by him. He has denied the various suggestions put to him by the Ld. Defence Counsels.
STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:
(60) After completion of prosecution evidence the statements of the accused persons have been recorded under Section 313 Code of Criminal Procedure wherein all the allegations have been put to them which they have denied. The accused Sunil Kumar has stated that he is innocent and has been falsely implicated in the present case. According to the accused nothing was recovered from his possession or at his instance and did not make any disclosure statement. He has further stated that the alleged recovery has been planted upon him by the police to falsely implicate him. (61) The accused Sonu @ Kaliya has also stated that he is innocent and has been falsely implicated in the present case after lifting him from his house. According to the accused, he was earlier shown to the complainant and his dossier was also shown to the complainant. He has denied having made any disclosure statement to the police.
St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 65 (62) The accused Rajender Kumar @ Kallan has similarly stated that he is innocent and has been falsely implicated by the police. According to him, at the time of his arrest he was at Paschim Vihar area and was called by the police after which he reached here and then took him to his house from where they arrested him. He has denied having made any disclosure statement to the police. According to him, the alleged recovery has been planted upon him.
(63) The accused have examined as many as Four Witnesses in their defence. DW1 HC Ghanender Prasad has brought the original Rojnamcha register with effect from 16.09.2012 to 14.10.2012, the copy of DD No. 7A dated 30.09.2012 at 6:20 AM with regard to PCR call and also DD No. 8A regarding arrival of ASI Surender Singh in connection of DD No 7A which is Ex.DW1/A. According to him both the said DDs are in the handwriting of HC Naresh Kumar, No.336/N. This witness has not been cross examined by Ld. Addl. PP for the state.
(64) DW2 Ct. Madhusudan has brought the original Delhi Police Control Room Form 1 (PartII) regarding PCR call from mobile number 9250257497 made at 6:16 AM on 30.09.2012 which PCR Form is Ex.DW2/A. He has not been cross examined by Ld. Addl. PP for the State. (65) DW3 Deepak Singh Ahlmad has brought the summoned record i.e. DD No. 8 dated 02.03.2011 Kalandara U/s 41.1(a&b) Cr. P.C. Police Station Bharat Nagar against accused Sunil Kumar, S/o Late Sh. Tulsi Ram, St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 66 R/o 10685/8, Andha Mugal, Partap Nagar, Delhi copy of which is Ex.DW3/A (running into 48 pages). This witness has not been cross examined by Ld. Addl. PP for the state.
(66) DW4 ASI Ravinder has deposed that on 02.03.2011 he was posted in Special Team Crime Branch, Parshant Vihar and on that day at about 2 PM, a secret information was received from their informer in regard of a case committed in DBG Road area prior to 2½ months which was a case of robbery of Rs. Five lacs in one TSR committed by one person namely Sunil Kumar S/o Tulsi Ram. According to him it was informed by their informer that the above said Sunil Kumar would come at about 4 PM at Y block, near bus stand ganda nala, Mangolpuri to meet his associate Jarnail Singh and pursuant to this information he along with SI Shiv Raj, ASI Jai Singh proceeded towards Y block, near bus stand ganda nala, Mangolpuri and after reaching there they asked some public persons to join the raid but they refused. According to the witness, at about 4:30 PM one person came on silver color pulsor motorcycle bearing No. DL6SAF6288 on which their informer pointed out towards him and they apprehended the said boy who on interrogation disclosed his name as Sunil Kumar S/o Tulsi Ram and also disclosed his involvement in above noted case along with other cases of different Police Stations. Witness has further deposed that he was arrested vide DD No. 8 dated 02.03.2011 Special Team Crime Branch and later on he was produced before the concerned court. The witness has pointed out towards the accused Sonu @ Kaliya, S/o Dharam St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 67 Singh in the Court as the above mentioned secret informer. He has admitted that his name and signatures are present on page No. 9 at point A, on page No. 10 at point B, on page No. 11 at point C, on page No. 16 at point D on Ex.DW3/A. He has not been cross examined by Ld. Addl. PP for the state.
FINDINGS:
(67) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsels. I have also gone through the memorandum of arguments filed by the parties and the evidence on record. My findings are as under:
Identity of accused Sunil Kumar and Sonu @ Kaliya:
(68) The case of the prosecution is that on 8.9.2012 at about 9:15 AM while the complainant Parveen Parashar a businessman by profession was going to his shop he was robbed on the point of a katta by two persons who had come on a scooter and snatched his gold chain and Rs.21,000/ from the pocket of his pants, after which the victim made a call at 100 number to the police. It is further the case of the prosecution that soon thereafter the complainant was shown the photographs/ dossiers of the various criminal/ suspects of the area and from the dossier he was able to identity one person from the said photographs i.e. accused Sunil Kumar who was sitting on the pillion seat of the scooter and had put the katta on St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 68 his chest and had snatched his gold chain and removed Rs.21,000/ from the pocket of his pants. On the basis of the same the police for the first time came to know the accused Sunil Kumar, who is involved in large number of other criminal cases and has a record with the police, was involved in the incident. Thereafter pursuant to the arrest of the accused Sunil Kumar, when his Judicial Test Identification Parade was conducted on 4.10.2012 the complainant/ victim was able to correctly identify the accused Sunil Kumar as the pillion rider who had put a katta on his chest stands established.
(69) In so far as the accused Sonu @ Kaliya is concerned the first time the complainant was able to identify him on 10.10.2012 when he came to Rohini Court Complex and saw one person in muffled face going inside the court room and after some time the said person came out from the court room and removed the cover from his face and the complainant could identify him as the person who was driving the scooter on the date of incident along with coaccused Sunil Kumar.
(70) In the Court the complainant Parveen Parashar has identified the accused Sunil Kumar as the person who was sitting on the pillion seat and the accused Sonu @ Kaliya who was driving the scooter. In this regard the testimony of Parveen Parashar (PW11) is most relevant. He has proved the mini dossier Ex.PW11/B from which he could identify the accused Sunil Kumar as the person who had put the pistol on his chest and snatched St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 69 his gold chain and removed Rs.21,000/ from his pants when this mini dossier was shown to him soon after the incident when he went to the Police Station. He has also proved having identified the accused Sunil Kumar in the Judicial Test Identification Parade conducted before the Ld. MM on 4.10.2012 in Jail which proceedings are Ex.PW11/C. This being the background, I hold that there is no reason to doubt this identification of accused Sunil Kumar by the complainant since according to the complainant the accused Sunil Kumar was sitting behind the scooter on the pillion seat and did not have his face covered and hence there was sufficient time for the complainant Parveen Parashar to have closely observed the accused Sunil Kumar when the Katta was put on his chest after which the accused Sunil Kumar removed his gold chain and also removed the cash from the pocket of his pants. The identification of the accused Sunil Kumar from the mini dossier is of the same day when the details of the assailants were fresh in his mind cannot be doubted. He was able to identify him from the many photographs (on the dossiers) shown to him when the face of the assailant was still fresh in his mind. This being the background, I hereby hold that in so far as the accused Sunil Kumar by the complainant firstly from the dossier Ex.PW11/B on the same date of incident i.e. 8.9.2012;
then during the Judicial Test Identification Parade proceedings on 4.10.2012 which is Ex.PW11/C and thereafter in the Court on 14.3.2013, cannot be doubted and stands established.
St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 70 (71) However, in so far as the accused Sonu @ Kaliya is concerned, he is also involved in large number of cases and also has a police record whose dossier would be available in the same district. When this suggestion was put to the Investigating Officer (regarding availability of dossier of Sonu in the District) he did not deny the same. I am sure that when the photographs of many suspects/ criminal including Sunil Kumar were put to the complainant/ victim Parveen Parashar, the dossier of the accused Sonu @ Kaliya would also have been put to him and in case if it was done, just as he had identified Sunil, I am sure he would also have identified the accused Sonu @ Kaliya from the said dossier which he did not do. It does not appear possible that this dossier of accused Sonu @ Kaliya would not have been put to the complainant. Further, in so far as the Judicial Test Identification Parade proceedings is concerned, the accused Sonu @ Kaliya had refused to participate in the same on the round that his photographs had been shown to the witness by the police and the possibility of the same cannot be ruled out in view of the fact that the dossier of the various suspects including Sunil Kumar had already been shown to the complainant from which he could identify the accused Sunil Kumar. Therefore, no adverse inference can be drawn against the accused Sonu @ Kaliya for this reason. Further, in so far as the identification of the accused in the Court on 10.10.2012 is concerned, it is writ large that the complainant was with the Investigating Officer SI Ved Prakash at that time and the possibility of his having identified the accused Sonu @ Kaliya as the person St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 71 who was sitting on the driver seat of scooter, at the instance and pointing out of the Investigating Officer cannot be ruled out. Here, I may observe that in his crossexamination when the complainant/ victim Parveen Parashar was asked to give the details of the person who was driving the scooter, he has admitted that the said person was wearing a cap type helmet which did not have a front visor whereas the boy who was sitting on the pillion seat was not wearing any helmet. He has explained that the driver of the scooter had not got down and has also explained that when the scooter hit his vehicle compelling him to stop his car, the rear tyres of the scooter were adjoining his door implying that the back of the person driving the scooter was towards him. It is writ large that under these circumstances the entire attention of the victim would have been on the person who was the pillion rider right next to his door and holding a katta which he put on his chest. Witness has admitted that he was extremely scared and nervous at that time. Hence, apparently there was an element of surprise, shock and nervousness and the possibility that the complainant had not closely observed the driver of the two wheeler scooter as closely as he had observed the pillion rider who had put the pistol on his chest, cannot be ruled out. In his first statement to the police which is Ex.PW11/A on the basis of which the present FIR was registered, the complainant has explained that the person who was driving the scooter was having a height of 5' 7'' and wheatish complexion whereas the boy who was sitting on the pillion set was 5' 6'' in height with fair complexion. This description of the St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 72 pillion rider matches with that of the accused Sunil Kumar who was sitting on the pillion seat as the accused Sunil Kumar is confirmedly having a height about 5' 6'' in height with fair complexion but in so far as the accused Sonu @ Kaliya is concerned the description does not match at all. The complexion of the accused Sonu @ Kaliya is strikingly dark and by no stretch of imagination it could have been mistaken as wheatish and he is much shorter and his height is around 5' 5'' and not 5' 7'' as mentioned in the FIR. Therefore, under these circumstances, the identification of the accused Sonu @ Kaliya by the complainant Parveen Parashar at the first instance on 10.10.2012 i.e. after about one month of the incident and thereafter in the Court, does not inspire confidence and his identity as the driver of the offending two wheeler scooter and one of the assailant does not stand established beyond doubt.
Allegations against the accused Sunil and Sonu @ Kaliya:
(72) The case of the prosecution is that on 08.09.2012 at about 9.00AM while the complainant was going to his shop at Mangol Puri in his Maruti car AStar of black colour bearing no. DL 8C Q 5613 and when he reached just ahead of Richi Rich Banquet Hall red light and hardly moved ahead by ten steps at about 9.15AM one two wheeler scooter of light blue colour stopped in front of his car and two persons were sitting on the scooter. Both the said boys were wearing Coca Cola shirt and blue coloured jeans pant and were in the age group of 2830 years. The boy who St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 73 was driving the scooter is stated to be having a height of 5' 7'' with wheatish complexion whereas the boy who was sitting on the back seat was 5' 6'' in height with fair complexion. The pillion rider of the scooter got down from the scooter and put a pistol upon the chest of the victim and said that hum chaudhary adami hai humara dimang ghuma hua hai or tera ghar se pichha kar rahe hai complaint ki to goli mara denge. Thereafter the said boy forcibly snatched the gold chain from the neck of the complainant and also removed Rs.21,000/ from his jeans pant. The victim was then compelled to open his briefcase lying on the backseat of the car and the said boy checked the same but did not find anything and thereafter both the said boys fled from the spot. The entire case of the prosecution is based upon the sole testimony of the victim Parveen Parashar (PW11).
(73) However, before coming to the merits of the allegations involved, I may observe that it is a settled law that the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 74 Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
(74) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at times under the stress of crossexamination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 75 to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965).
(75) Applying the settled principles of law to the facts of the present case, coming now to the testimony of victim Parveen Parashar (PW11), the relevant portion of the same is as under:
"......... I doing the business of marble stone and having shop No. 305 and 390 at Mangol Puri Marble Market.
On 08.09.2012 at about 9.00AM I was going to my above said shop from my house by my car Maruti A Star of black colour bearing no. DL 8C Q 5613. I was having a brief case which was kept on the rear seat of my car which containing some documents. When I reached just ahead of Richi Rich Banquet Hall red light and hardly moved ahead by ten steps at about 9.15AM one two wheeler scooter of light blue colour just stop in front of my car. Two persons were sitting on the scooter and both persons were wearing Coca Cola shirt and blue coloured jeans pant and both were about 30 years of age. The pillion rider of the scooter got down from the scooter and put a pistol upon me on my chest and he was saying that hum chaudhary adami hai humara dimang ghuma hua hai or tera ghar se pichha kar rahe hai complaint ki to goli mara denge and thereafter that person snatched my gold chain from my neck and the person who was driving the scooter came on the left side door of the car and the person who put pistol and snatched my chain from St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 76 neck also took my Rs.2,1000/ from my jeans pant and thereafter that person opened the brief case lying on the rear seat but nothing valuable was found in the brief case. Thereafter he threatened me do not make complaint. Thereafter both persons run away towards Azadpur with their scooter. Thereafter I moved forwarded upto half a Kilometer and parked my car at the corner of the road in front of Wazirpur Depot and made a call at 100 number. Vol. I was under fear that the abovesaid assailants might come again at the spot so I moved forward for about half a Kilometer. PCR gypsy reached there and two police officials also came from the Wazirpur police post at that place and thereafter we came at the place of incident with the police and I have shown the place of incident to the police. Police recorded my statement which is Ex.PW11/A bears my signatures at point A. Police prepared the site plan of place of incident at my instance.
On the same day I went to the police station Ashok Vihar with police and police officials had shown the mini dossier to me and I identified the photographs of the person who put pistol upon me and robbed my chain and Rs.2,1000/. The dossier is Ex.PW11/B with photograph which was identified by of the abovesaid person. I came to know name of this person as Sunil. The photograph is at point A. On 14/09/12 I again went to the Police Post Wazirpur, SI Ved Prakash met me there. I told him that my robbed chain was weight of 16gm instead of 10gm. I came to know that the weight of my chain of 16gm when I returned back to my house on the day of incident. St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 77
On 04/10/12 I reached at Tihar jail for identification of the abovsaid assailants. I identified the accused Sunil in the Tihar jail during the TIP proceedings before a Ld MM.
At this stage one envelop in the judicial file in sealed condition with the seal of SK is opened and TIP proceedings conducted by Shri Sunil Kumar, Ld MM, Rohini is opened and witness identified his signatures on the TIP proceedings which is Ex.PW11/C bearing my signatures at point A. On 10/10/12 I came to Rohini Court Complex and I saw one person who was muffled face while going inside of the court room and after some time he came out from the court room and removed the cover from his face and then I saw his face and identified him as a person who was driving the scooter on the day of incident and committed the incident with accused Sunil. I told this facts to the SI Ved Prakash.
On 11/10/12 I came at Rohini Courts and I identified my gold chain during the TIP proceedings in the chamber of the Ld MM.
At this stage one envelop in the judicial file in sealed condition with the seal of SK is opened and TIP proceedings of case property conducted by Shri Sunil Kumar, Ld MM, Rohini is opened and witness identified his signatures on the TIP proceedings which is Ex.PW11/D bearing my signatures at point A. I can identify the above said both persons who committed incident against me. Both persons are present in the court today, witness pointed out towards the accused Sunil Kumar and Sonu @ Kalia and identified the same as the person who committed abovesaid incident against me. Accused Sunil Kr is the St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 78 person who put the pistol upon my chest and snatched my gold chain and also robbed Rs.2,1000/ from my jeans pant. Accused Sonu @ Kaila is the same person who was driving the scooter on the day of incident and committed the incident alongwith accused Sunil Kr. Both accused threatened me to shoot me if I made complaint.
I have taken the abovesaid chain on Superdari from the court. I have brought the same before the court. At this stage witness produced one gold chain which was broken. (Court Observation: it is broken chain at the middle portion ). The same is Ex.P1...."
(76) The victim/ complainant Parveen Parashar (PW11) has been exhaustively crossexamined by the Ld. Counsels for the accused first on 14.3.2012 and thereafter specifically by the counsel for the accused Sunil Kumar on 6.8.2013. Ld. Counsels have vehemently argued that the incident in question does not inspire confidence and particularly the identification by the complainant. It is argued that the present case has been wrongly and improperly investigated by the Investigating Officer to avoid his duty without making efforts to catch the real culprits and the entire blame has been diverted upon the accused persons who were having a previous record in the District. It is also argued that the manner in which the incident took place shows that there was no possibility that the complainant could have closely observed the accused persons and identified them in which manner in which he has done. It is also argued that the complainant has not been able to give the details of the case property i.e. weight of the gold chain St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 79 which was allegedly robbed from his possession and it is alleged that the accused were in fact shown to the complainant prior to the Judicial Test Identification Parade on account of which the complainant was able to identity the accused Sunil Kumar in the Judicial Test Identification Parade and accused Sonu @ Kaliya had refused to participate in the same. It is further argued that the identification of gold chain Ex.P1 by the complainant during the Judicial Test Identification Parade also does not inspire confidence of the Court. The Ld. Counsel for the accused Sunil Kumar has argued that as per the statements of the Police Officers, the accused Sunil is a BC (Bad Character) of the area having a large number of criminal cases against him and therefore, under the given circumstances it is impossible that he would take such a step so as to expose his identity to the complainant who could have closely observed him. It is also argued that on the one hand the complainant says that he had become perplexed and scared and could not noted down the number of the scooter whereas on the other hand he could have closely observed the accused Sunil Kumar and Sonu and hence it is writ large that the entire case has been diverted upon the accused.
(77) After having given my careful consideration to the submissions made before me, I may observe that the in so far as the identity of the accused Sunil Kumar as the pillion rider is concerned, as discussed herein above, the same cannot be doubted. It was on the very same day soon after the incident that the complainant Parveen Parashar was taken to the Police St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 80 Station after registration of the case and he was shown the dossier of large number of criminals of the area and from the mini dossiers being put to him the complainant immediately identified the accused Sunil Kumar but not Sonu @ Kaliya (even though both are having a record in the District). It is borne out from the record that even the accused Sonu @ Kaliya is involved in large number of criminal cases and his dossier is available in the District and it does not appear probable under the given circumstances that the complainant would have been shown the dossier of the accused Sunil Kumar and not of accused Sonu @ Kaliya. Hence, for the reasons as already discussed above I hold that the identity of the accused Sunil Kumar by the complainant cannot be doubted. He has been identified as the person who was the pillion rider who got down from the Scooter and put a katta on the chest of Complainant by saying "hum chaudhary adami hai humara dimang ghuma hua hai or tera ghar se pichha kar rahe hai complaint ki to goli mara denge" and thereafter snatched his gold chain and also removed Rs.21,000/ from the pocket of his pants.
(78) Further, the argument of the Ld. Defence Counsel that the accused Sunil Kumar being involved in large number of robbery cases and would not have taken the risk of exposing himself to the victim, does not hold any merit. Firstly I may observe that robbery took place in broad day light in the morning between 9:0010:00 AM on the main Ring Road where large number of vehicle passed through the area. It is a matter of common knowledge that on a busy road people are slow to notice or stop even St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 81 noticing such incidents so as to risk their own lives or waste their times on police and legal formalities. For this mere public indifference or for the fact that no one stopped to help the victim, his version cannot be doubted. Secondly the fact that the accused Sunil Kumar is involved in large number of criminal cases, shows the extent of his desperation. The accused Sunil Kumar is a hardened criminal and the manner in which he had threatened the complainant a businessman after telling him that they had been following him from his house i.e. Ashok Vihar till the Ring Road shows the extent of his confidence which he apparently did to show the victim that despite his misdeeds law cannot catch on with him. It is well known that a large number of robbery/ dacoity cases go unreported either because the value of the robbed articles is very less or on account of fear of the victims who do not wish to expose themselves to these hardened and habitual criminals and also because they themselves do not wish to get involved in the legal intricacies of law and then face harassment of cumbersome court proceedings and crossexaminations. I find no merit in this argument raised by the Ld. Defence Counsel. Lastly there is also no reason to doubt the testimony of the victim/ complainant when he has specifically stated that while leaving both the accused had threatened him not to make any complaint to the police by saying "hum chaudhary adami hai humara dimang ghuma hua hai or tera ghar se pichha kar rahe hai complaint ki to goli mara denge" which again confirms the gross criminal confidence the assailants enjoyed that perhaps the Law can never catch on with them. St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 82 (79) In so far as the accused Sonu @ Kaliya is concerned, as observed herein above neither the description given by the complainant at the first instance matches with the accused Sonu @ Kaliya nor he has been identified in the dossier at the first instance and as noted herein above the possibility of the complainant having identified him at the instance of the Investigating Officer cannot be ruled out. Also, because as already observed in his crossexamination the complainant/ victim Parveen Parashar has admitted that the driver of the two wheeler scooter was wearing a cap type helmet without a front visor and has explained that the driver of the scooter had not got down. He has further explained that when the scooter hit his vehicle compelling him to stop his car, the rear tyres of the scooter were adjoining his door implying thereby that the back of the person driving the scooter was towards him. It is writ large that under these circumstances the entire attention of the victim would have been on the person who was the pillion rider right next to his door and holding a katta which he put on his chest. Witness has admitted that he was extremely scared and nervous at that time. Hence, apparently there was an element of surprise, shock and nervousness and hence there was a possibility that the complainant had not closely observed the driver of the two wheeler scooter as closely as he had observed the pillion rider who had put the pistol on his chest. In his first statement to the police which is Ex.PW11/A on the basis of which the present FIR was registered, the complainant has explained that the person who was driving the scooter was having a height of 5' 7'' and wheatish St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 83 complexion whereas the boy who was sitting on the pillion set was 5' 6'' in height with fair complexion. This description of the pillion rider matches with that of the accused Sunil Kumar who was sitting on the pillion seat as the accused Sunil Kumar is confirmedly having a height about 5' 6'' in height with fair complexion but in so far as the accused Sonu @ Kaliya is concerned the description does not match at all. The complexion of the accused Sonu @ Kaliya is strikingly dark and by no stretch of imagination it could have been mistaken as wheatish and his height is around 5' 5'' and not 5' 7'' as mentioned in the FIR.
(80) The only evidence on record against the accused Sonu @ Kaliya is the disclosure statement of the coaccused Sunil Kumar and in so far as that disclosure statement is concerned, not only because it is inadmissible in evidence being hit by the provisions of Section 25 of Evidence Act but also because the accused Sonu @ Kaliya has been able to establish his defence of his false implication by accused Sunil which cannot be ruled out. Sonu @ Kaliya has claimed that he was the secret informer of the Police and even previously had been giving important information to police on wanted criminal and even accused Sunil who was previously involved in many criminal cases was arrested on his information. In his defence he has examined DW4 ASI Ravinder of Crime Branch who has proved that on 2.3.2011 they had arrested the accused Sunil Kumar in a case of robbery of Rs.5 lacs committed in a TSR on the basis of the secret information. He has specifically identified the accused Sonu @ Kaliya as the person who St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 84 was their informer and had given the secret information in this regard. There is no reason to doubt this fact proved by ASI Ravinder since the accused Sonu @ Kaliya has exposed his secret nexus with the police and the information which he was providing to them at the cost of winning the hostilities of his rivals (whom he got arrested including Sunil Kumar). This being the background the possibility of the accused Sunil Kumar having implicated the accused Sonu @ Kaliya only to seek revenge in respect of his earlier arrest by Crime Branch, cannot be ruled out, rather appears possible or else there was no reason why the complainant could not have identified him at the first instance as he identified Sunil and also because his description does not match with the description of the driver provided in the complaint/ FIR. Therefore, benefit of doubt is liable to be given to the accused Sonu @ Kaliya.
Allegations against the accused Rajender Kumar @ Kallan:
(81) In so far as the accused Rajender Kumar @ Kallan is concerned, he is stated to be a jeweller to whom the stolen property had been allegedly sold by the accused Sunil and there was a recovery of gold chain Ex.P1 which has been duly identified by the complainant in Judicial Test Identification Parade as well as in the Court. In this regard the Ld. Defence Counsel has vehemently argued that the recovery of the gold chain Ex.P1 from the accused Rajender Kumar @ Kallan has not been duly proved in accordance with law in as much as there are material contradictions in the St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 85 testimonies of the members of the raiding party who had allegedly gone to the shop of accused, on the aspect of time and place where they had been taken by the accused Sunil and alleged recovery of gold chain. (82) I have considered the submissions made in this regard. At the very Outset I may hold that in so far as the recovery of the gold chain from the possession of accused Rajender is concerned, the same cannot be doubted since the details of the said gold chain find a mention in the first statement made to the police by the complainant. (83) Secondly it is argued by the Ld. Defence Counsel the details of the chain including its length and design etc. has not been given by the complainant to the police which raises a suspicion and hence benefit of doubt shall be given to the accused. Here, I may observe that the complainant Parveen Parashar (PW11) has explained that even today he cannot tell the exact weight of the chain and it is only by approximation that he identified the same. I may further observe that even in the Judicial Test Identification Parade from as many as eightten chains the complainant/ victim had identified his chain which is Ex.P1. Merely because the complainant has not been able to give the details of the same would not matter because it is a matter of common knowledge that most of the jewellery articles possessed by people are by way of inheritance and therefore it is not possible for them to explain the minute details of the same. The fact that in his first complaint the complainant had mentioned the aspect of robbery of gold chain, the same cannot be doubted. St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 86 (84) Thirdly it is argued that the chain produced in the Court was no doubt broken but the same appears to have been cut by a plier and not being pulled. I have considered the submissions and gone through the photographs of the chain present on the record. It is writ large that the gold chain is a machine made chain and not a handmade chain and therefore under the given circumstances on being pulled there may be no apparent signs of tension and the chain would appear to be cut. It would is only in hand made designs that depending upon the design of the chain, signs of pulling/ tension would be visible. It is a matter of common knowledge that if a chain is hand made, the signs of pulling/ tension would be visible but in a case where the design is made by machine particularly the design present on the chain of the complainant the signs of pulling/ tension would not visible. Even otherwise a careful perusal of the photographs Ex.PW15/F1 and Ex.PW15/F2 would show that there is an unclean tension mark on the upper side of the chain/ boarder indicating the pulling. Therefore, I find no merit in the arguments raised by the Ld. Defence Counsel. (85) However, legally in so far as the charge under Section 413 IPC against the accused Rajender Kumar @ Kallan is concerned, it was necessary for the Investigating Officer to have proved the receiving of the gold chain dishonestly from the accused Sunil. No receipt with regard to the sale of the same has been placed on record nor there is any witness to this dishonest transfer of possession of this gold chain to accused Rajender @ Kallan. There is no evidence whatsoever of receiving the gold chain and St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 87 the Investigating Officer has failed to place on record any evidence to show that the accused had even previously been receiving stolen property or is habitual in the same. The sole evidence in this regard is the disclosure statement of the accused Rajender Kumar @ Kallan and the coaccused Sunil Kumar both of which are inadmissible in evidence. Though the defence of the accused Rajender Kumar is that the said chain has been planted upon him but it does not inspire confidence as the various witnesses of the police have proved this recovery pursuant to disclosure statement of accused Sunil which was not known to police previously. Hence, I hereby hold that though the recovery of the gold chain from the accused Rajender Kumar has been duly proved by the prosecution but neither the dishonest intent of the accused as contemplated under Section 411 IPC has been proved nor it has been proved the accused Rajender Kumar habitually deals in property which he know or has reasons to believe to be stolen property.
A casual mention has been made in the charge sheet that the accused Rajender Kumar is involved in FIR No.170/12, U/s. 392/397/411/34 IPC, PS Bharat Nagar but there is no cogent evidence on record to establish that the accused Rajender is habitually dealing in stolen properties. Therefore, benefit of doubt is being given to the accused Rajender Kumar @ Kallan. Discrepancies and Contradictions:
(86) The Ld. Defence counsels have pointed out various contradictions and discrepancies in the testimony of the public witness St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 88 Parveen Parashar on the point of the place where the incident had happened, route which he had taken and the details of the assailants. They have also pointed out the various discrepancies in the testimonies of police witnesses with regard to the investigations conducted, the time and places where they have visited along with the accused Sunil and Sonu and also with regard to the present of the public witnesses etc. Ld. Addl. PP for the State has vehemently argued that the said contradictions are minor in nature and not material.
(87) I have considered the rival contentions and I may observe that in the case of State of H.P. Vs. Lekhraj and another reported in JT 1999 (9) SC 43 it was observed by the Hon'ble Supreme Court that: ".....In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.........
.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial....." (88) Further, in the case of Surender Singh Vs. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under : ".......It is wellestablished principle of law that every discrepancy in the witness statement cannot be treated as St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 89 a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity...."
(89) As far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish v.State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that when the discrepancies are comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also, in the case of State of Rajasthan Vs. Kalki, reported in (1981)2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
(90) Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 90 witness who is well tutored can successfully made his testimony totally nondiscrepant. Courts have to bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. Too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
(91) The Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. The observations made in the case of Tehsildar Singh Vs. State of UP reported in AIR 1959 SC 1012 were later on reaffirmed by the Hon'ble Supreme Court in the cases of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1) and Leela Ram Vs. State of Haryana reported in AIR 19997 SC 3717, wherein the Hon'ble Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses:
(a) While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 91 given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
(b) If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
(c) When eye witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
(d) Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
(e) Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 92
(f) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(g) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(h) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(i) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(j) In regard to exact time of an incident or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation and one cannot expect people to make very precise or reliable estimates in such matters.
Again it depends on the timesense of individuals which varies from person to person.
(k) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 93 rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(l) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment.
The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
(m) A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contraction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness. (92) It should be remembered that human behaviour varies from person to person and different people react and behaved differently in a different situation. How person can behave in a particular situation cannot be predicted. (Ref.: State of UP Vs. Devender Singh reported in AIR 2009 SC 3690).
(93) Applying the settled principles of law to the facts of the present case, it is evident that in so far as the complainant/ victim Parveen Parashar St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 94 is concerned, the incident had taken place after the complainant had left his house for his business and was casually moving towards his shop on the main road. Nobody could have expected that in broad day light on a busy road suddenly a scooter would stop before his car and a robbery would commit upon him on the point of dangerous weapon/ desi katta. The complainant/ victim could not have anticipated the occurrence which had an element of surprise and therefore it is only natural that his mental faculties are not expected to absorb minute details of whatever had transpired. He has explained that he was absolutely scared on seeing the katta which had been put on his chest. Under the given circumstances, the discrepancies are bound to occur in his statement. The incident, under no circumstances, can be doubted in view of the fact that there was no history of animosity between the complainant/ victim and the accused for any reason whatsoever. Rather, the accused Sunil Kumar is a Habitual Criminal/ Bad Character of the area and involved in large number of similar cases and having scant respect for law. Therefore, I find these discrepancies so pointed out by the Ld. Defence Counsel as immaterial. (94) In so far as the discrepancies and contradictions with regard to the identification of the accused Sonu @ Kaliya and with regard to the recovery of gold chain from the possession of accused Rajender @ Kallan are concerned, the same have already been dealt with by this Court and benefit of doubt has been given to both the accused persons. St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 95 (95) Further, as regards the contradictions in the timings, presence of a particular police official at a particular time, storeys of the house of the accused etc., I am of a considered view that the same are too immaterial and irrelevant and can be ignored attributing the same to the lapse of time as the material facts have been substantially proved by the prosecution. Merely due to the contradictions in the evidence regarding investigation or even if there is faulty investigation, the same do not absolve the accused of his liability as it is the evidence of the material and star witnesses which is more important than the evidence of the witnesses of the investigation. FINAL CONCLUSIONS:
(96) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 96 except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(97) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses. On the basis of the evidence on record the following aspects stand established:
➢ That Praveen Parashar is doing the business of marble stone and having a shop bearing No. 305 and 390 at Mangol Puri Marble Market.
➢ That on 08.09.2012 at about 9.00AM Praveen Parashar was going to his above said shop from his house by his car Maruti A Star of black colour bearing no. DL 8C Q 5613.
➢ That Praveen Parashar was also having a briefcase which was kept on the rear seat of his car which containing some documents. ➢ That when Praveen Parashar reached just ahead of Richi Rich Banquet Hall Red Light and hardly moved ahead by ten steps at about 9.15AM one two wheeler scooter of light blue colour on which two persons were sitting stopped in front of his car. St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 97 ➢ That both the persons aged about 30 years were wearing Coca Cola shirt and blue coloured jeans pant.
➢ That the pillion rider of the scooter got down from the scooter and put a pistol upon on the chest of Praveen Parashar and threatened that hum chaudhary adami hai humara dimang ghuma hua hai or tera ghar se pichha kar rahe hai complaint ki to goli mara denge. ➢ That the said person snatched the gold chain from the neck of Praveen Parashar and the person who was driving the scooter came on the left side door of the car.
➢ That the person who put pistol and snatched the chain from neck, also took Rs.21,000/ from the jeans pant of Praveen Parashar and thereafter the said person opened the brief case lying on the rear seat but nothing valuable was found in the brief case. ➢ That both the said persons threatened the complainant Praveen Parashar not to make any complaint and thereafter they drove away towards Azadpur with their scooter.
➢ That due to the fear of the assailants, Praveen Parashar moved forward for about half a kilometer and parked his car at the corner of the road in front of Wazirpur Depot from where he made a call at 100 number.
➢ That pursuant to the 100 number call, the police reached the spot and recorded the statement of Praveen Parashar on the basis of which the present FIR was registered.
St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 98 ➢ That the victim Praveen Parashar was then taken to the Police Station Ashok Vihar where he was shown a large number of mini dossiers with photographs of the various criminals of the area. ➢ That from the said mini dossiers the victim Praveen Parashar could identity the photographs of one of the person who had put pistol upon him and robbed his chain and Rs.21,000/ and came to know name of said person as Sunil.
➢ That on 14.09.2012 Parveen Parashar again went to the Police Post Wazirpur where he made a supplementary statement and informed the Investigating Officer SI Ved Prakash that his robbed chain was weight of 16gm instead of 10gm.
➢ That on 28.09.2012 SI Ranbir Singh of Police Station Bharat Nagar gave information vide DD No. 43B that Sunil had been apprehended in one Arms Act case and during investigations he had disclosed his involvement in the present case of robbery.
➢ That thereafter the Investigating Officer obtained the photocopy of disclosure statement of the accused Sunil in the said case alongwith the copies of FIR, seizure memos and statements of the other witnesses of the raiding party.
➢ That on 30.09.2012 ASI Arvind from Police Station Bharat Nagar vide DD No.18A informed that the case property i.e. gold chain stolen in the present case had also been recovered from the accused Rajender @ Kallan.
St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 99 ➢ That on 01.10.2012 the Investigating Officer moved an application before the Area MM for production of the accused Sunil pursuant to which on 03.10.2012, the accused Sunil was produced before the Area MM and after taking permission from the Court, the accused Sunil was arrested in this court.
➢ That on 04.10.2012 during Judicial Test Identification Parade the complainant/ victim Parveen Parashar identified the accused Sunil in Jail.
➢ That pursuant to the application of the Investigating Officer the accused Sonu and Rajender who were already in Judicial Custody in some other case, were produced before the Area MM in muffled face and after taking permission from the Ld. MM both the accused Sonu @ Kaliya and Rajender @ Kallan were arrested in this case. ➢ That the accused Sonu @ Kaliya refused to take participate in the Judicial Test Identification Parade.
➢ That on 11.10.2012 during Judicial Test Identification Parade of the case property the complainant/ victim Parveen Parashar identified his gold chain.
(98) The victim/ complainant Parveen Parashar has appeared in the Court and identified the accused Sunil Kumar as the boy who had put the pistol upon his chest and snatched his gold chain and also robbed Rs.
21,000/ from his jeans pant. The testimony of the victim Parveen Parashar St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 100 has been held to be authentic, credible and trustworthy qua the accused Sunil Kumar. This being the background, I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Sunil Kumar of having committed an armed robbery upon the complainant/ victim Parveen Parashar for which he is hereby held guilty of the offence under Section 392 r/w 397 Indian Penal Code. In so far as the charge under Section 27 of Arms Act is concerned, I may observe that the firearm in question has not been put to the victim in the court and a separate charge sheet has been filed against the accused Sunil in respect of having found in possession of the country made pistol. The ingredients of Section 27 of Arms Act i.e. use of the firearm upon the victim in order to create fear in the victim, are covered under the provisions of Section 397 Indian Penal Code and hence under the given circumstances the accused Sunil Kumar cannot be separately held guilty of the offence under Section 27 of Arms Act and hence he is acquitted of the charge under Section 27 of Arms Act. (99) Further, in so far as the accused Sonu @ Kaliya is concerned, neither the description given by the complainant at the first instance matches with that of the accused Sonu @ Kaliya nor he has been identified in the dossier at the first instance and the possibility of the complainant having identified him at the instance of the Investigating Officer cannot be ruled. Therefore, benefit of doubt is being given to the accused Sonu @ Kaliya who is hereby acquitted of the charges under Section 392 Indian St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 101 Penal Code.
(100) In so far as the accused Rajender Kumar @ Kallan is concerned, though the recovery of the gold chain from the accused Rajender Kumar has been duly proved by the prosecution but neither the dishonest intent of the accused Rajender @ Kallan as contemplated under Section 411 IPC has been proved nor it has been proved the accused Rajender Kumar habitually deals in property which he know or has reasons to believe to be stolen property. Therefore, benefit of doubt is being to the accused Rajender Kumar @ Kallan who is acquitted of the charge under Section 413 Indian Penal Code.
(101) Be listed for arguments on sentence qua the convict Sunil Kumar on 20.2.2014.
Announced in the open court (Dr. KAMINI LAU)
Dated: 15.2.2014 ASJII(NW)/ ROHINI
St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 102
IN THE COURT OF Dr. KAMINILAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 08/2013 Unique Case ID No.: 02404R0317012012 State Vs. (1) Sunil Kumar S/o Tulsi Ram R/o House No. 10685, Gali No.8, Andha Mugal, Pratap Nagar, Delhi (Convicted) (2) Sonu @ Kaliya S/o Dharam Singh R/o House No. 10613, Gali No.6, Andha Mugal, Pratap Nagar, Delhi (Acquitted) (3) Rajender Kumar @ Kallan S/o Suresh Chand R/o House No. B2/255256, Sector20, Rohini, Delhi (Acquitted) FIR No.: 223/2012 Police Station: Ashok Vihar Under Sections: 392/397/413/34 IPC & 25/54/59 of Arms Act St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 103 Date of Conviction: 15.2.2014 Arguments concluded on: 25.2.2014 Date of Sentence: 26.2.2014 APPEARANCE:
Present: Sh. Tofeeq Ahmed, Addl. PP for the State.
Convict Sunil Kumar in Judicial Custody.
ORDER ON SENTENCE:
As per the allegations on 8.9.2012 at 9:15 AM at Ring Road, Richi Rich Banquet Hall, towards Prembari Bridge, Ashok Vihar in furtherance of their common intention the accused Sunil Kumar and Sonu @ Kaliya committed robbery of a gold chain and Rs.21,000/ from the possession of the complainant Parveen Parashar. It has been alleged that while committing robbery, while the accused Sonu @ Kaliya was driving the two wheeler scooter on which the accused had come, it was the accused Sunil Kumar who showed a country made pistol to the victim. In so far as the accused Rajender Kumar @ Kallan is concerned it has been alleged that he habitually received or deal in property which he knew or has reasons to believe to be stolen property and dishonestly received or retained a stolen property i.e. gold chain belonging to the victim Parveen Parashar.
However, on the basis of the testimonies of the various prosecution witnesses particularly the victim Parveen Parashar and also on St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 104 the basis of other evidence on record, this Court vide a detail judgment dated 15.2.2014 held the accused Sunil Kumar guilty of the offence under Section 392 r/w 397 Indian Penal Code but acquitted of the charge under Section 27 Arms Act. Further, the accused Sonu @ Kaliya has been acquitted of the charge under Section 392 Indian Penal Code and the accused Rajender Kumar @ Kallan has been acquitted of the charge under Section 413 Indian Penal Code.
Vide the detail judgment this Court has observed that the prosecution has been able to prove and establish that Praveen Parashar is doing the business of marble stone and having a shop bearing No. 305 and 390 at Mangol Puri Marble Market; that on 08.09.2012 at about 9.00AM Praveen Parashar was going to his above said shop from his house by his car Maruti A Star of black colour bearing no. DL 8C Q 5613; that Praveen Parashar was also having a briefcase which was kept on the rear seat of his car which containing some documents; that when Praveen Parashar reached just ahead of Richi Rich Banquet Hall Red Light and hardly moved ahead by ten steps at about 9.15AM one two wheeler scooter of light blue colour on which two persons were sitting stopped in front of his car; that both the persons aged about 30 years were wearing Coca Cola shirt and blue coloured jeans pant; that the pillion rider of the scooter got down from the scooter and put a pistol upon on the chest of Praveen Parashar and threatened that hum chaudhary adami hai humara dimang ghuma hua hai or tera ghar se pichha kar rahe hai complaint ki to goli mara denge; that St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 105 the said person snatched the gold chain from the neck of Praveen Parashar and the person who was driving the scooter came on the left side door of the car; that the person who put pistol and snatched the chain from neck, also took Rs.21,000/ from the jeans pant of Praveen Parashar and thereafter the said person opened the brief case lying on the rear seat but nothing valuable was found in the brief case; that both the said persons threatened the complainant Praveen Parashar not to make any complaint and thereafter they drove away towards Azadpur with their scooter; that due to the fear of the assailants, Praveen Parashar moved forward for about half a kilometer and parked his car at the corner of the road in front of Wazirpur Depot from where he made a call at 100 number.
Further, it has also been established that pursuant to the 100 number call, the police reached the spot and recorded the statement of Praveen Parashar on the basis of which the present FIR was registered; that the victim Praveen Parashar was then taken to the Police Station Ashok Vihar where he was shown a large number of mini dossiers with photographs of the various criminals of the area; that from the said mini dossiers the victim Praveen Parashar could identity the photographs of one of the person who had put pistol upon him and robbed his chain and Rs. 21,000/ and came to know name of said person as Sunil; that on 14.09.2012 Parveen Parashar again went to the Police Post Wazirpur where he made a supplementary statement and informed the Investigating Officer SI Ved Prakash that his robbed chain was weight of 16gm instead of 10gm. St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 106
This Court has also observed that the prosecution has been able to establish that on 28.09.2012 SI Ranbir Singh of Police Station Bharat Nagar gave information vide DD No. 43B that Sunil had been apprehended in one Arms Act case and during investigations he had disclosed his involvement in the present case of robbery; that thereafter the Investigating Officer obtained the photocopy of disclosure statement of the accused Sunil in the said case alongwith the copies of FIR, seizure memos and statements of the other witnesses of the raiding party; that on 30.09.2012 ASI Arvind from Police Station Bharat Nagar vide DD No.18A informed that the case property i.e. gold chain stolen in the present case had also been recovered from the accused Rajender @ Kallan; that on 01.10.2012 the Investigating Officer moved an application before the Area MM for production of the accused Sunil pursuant to which on 03.10.2012, the accused Sunil was produced before the Area MM and after taking permission from the Court, the accused Sunil was arrested in this court; that on 04.10.2012 during Judicial Test Identification Parade the complainant/ victim Parveen Parashar identified the accused Sunil in Jail; that pursuant to the application of the Investigating Officer the accused Sonu and Rajender who were already in Judicial Custody in some other case, were produced before the Area MM in muffled face and after taking permission from the Ld. MM both the accused Sonu @ Kaliya and Rajender @ Kallan were arrested in this case; that the accused Sonu @ Kaliya refused to take participate in the Judicial Test Identification Parade; that on 11.10.2012 during Judicial Test St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 107 Identification Parade of the case property the complainant/ victim Parveen Parashar identified his gold chain.
Further, it has been observed by this Court that the victim/ complainant Parveen Parashar has identified the accused Sunil Kumar in the Court as the boy who had put the pistol upon his chest and snatched his gold chain and also robbed Rs.21,000/ from his jeans pant. The testimony of the victim Parveen Parashar has been held to be authentic, credible and trustworthy qua the accused Sunil Kumar. This being the background, it has been held that the prosecution has been able to prove and substantiate the allegations against the accused Sunil Kumar of having committed an armed robbery upon the complainant/ victim Parveen Parashar for which he has been held guilty of the offence under Section 392 r/w 397 Indian Penal Code and accordingly convicted. He has been acquitted of the charge under Section 27 of Arms Act.
Further, in so far as the accused Sonu @ Kaliya is concerned, it has been observed by this Court that neither the description given by the complainant at the first instance matches with that of the accused Sonu @ Kaliya nor he has been identified in the dossier at the first instance and the possibility of the complainant having identified him at the instance of the Investigating Officer cannot be ruled. Therefore, benefit of doubt has been given to the accused Sonu @ Kaliya who has been acquitted of the charges under Section 392 Indian Penal Code.
St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 108
In so far as the accused Rajender Kumar @ Kallan is concerned, it has also been observed by this Court that though the recovery of the gold chain from the accused Rajender Kumar has been duly proved by the prosecution but neither the dishonest intent of the accused Rjaender @ Kallan as contemplated under Section 411 IPC has been proved nor it has been proved the accused Rajender Kumar habitually deals in property which he know or has reasons to believe to be stolen property (as contemplated under Section 413 IPC). Therefore, benefit of doubt has been being to the accused Rajender Kumar @ Kallan who has been acquitted of the charge under Section 413 Indian Penal Code.
Heard arguments on the point of sentence qua the convict Sunil Kumar. He is stated to be aged about 38 years having a family comprising of aged widow mother, six brothers, one sister, wife and two sons. He is 5th class pass and is a salesman by profession. Ld. Counsel for the convict has vehemently argued that keeping in view the family background of the convict a lenient view be taken against him.
Ld. Addl. PP for the State on the other hand has argued that keeping in view the allegations involved a stern view be taken against the convict who does not deserve any leniency. He has pointed out that the convict Sunil Kumar is involved in Seventeen other cases details of which are as under:
1. FIR No. 220/12, u/s. 25 Arms Act, PS Bharat Nagar wherein he has St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 109 been convicted.
2. FIR No. 279/12, u/s. 392/447/341/34 IPC, PS Rani Bagh wherein he has been acquitted.
3. FIR No. 170/12, u/s. 392/397/34 IPC, PS Bharat Nagar which is pending trial.
4. FIR No. 163/12, u/s. 356/379/411 IPC, PS Bharat Nagar which is pending trial.
5. FIR No. 65/12, u/s. 356/379/34 IPC, PS Ashok Vihar wherein untrace report has been filed.
6. FIR No. 369/12, u/s. 379/356/34 IPC, PS Sultan Puri wherein untrace report has been filed.
7. FIR No. 207/12, u/s. 379/356/34 IPC, PS Keshav Puram wherein untrace report has been filed.
8. FIR No. 238/12, u/s. 356/379/34 IPC, PS Ashok Vihar wherein he has been acquitted.
9. FIR No. 73/11, u/s. 452/323/34 IPC, PS Ashok Vihar wherein he has been discharged.
10.FIR No. 251/10, u/s.394/34 IPC, PS DBG Road wherein he has been discharged.
11.FIR No. 260/10, u/s. 356/379/34 IPC, PS Sarai Rohilla wherein untrace report has been filed.
12.FIR No. 242/10, u/s. 356/379/34 IPC, PS Sarai Rohilla wherein he has been discharged.
St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 110
13.FIR No. 113/10, u/s. 356/379/34 IPC, PS Ashok Vihar wherein he has been discharged.
14.FIR No. 70/09, u/s. 324/34 IPC, PS Gulabi Bagh wherein he has been acquitted.
15.FIR No. 126/08, u/s. 392/379/34 IPC & 25 Arms Act, PS Punjabi Bagh wherein he has been discharged.
16.FIR No. 604/04, u/s. 379/411/34 IPC, PS Sarai Rohilla wherein he has been convicted.
17.FIR No. 766/04, u/s. 411 IPC, PS Okhla Industrial Area wherein he has been discharged.
Ld. Addl. has argued that no leniency should be shown to the convict Sunil Kumar keeping in view his above criminal background.
I have considered the rival contentions. I may observe that in the recent past Delhi has experienced a spurt and rise in the incidents of snatching, robbery, dacoity, murder and other kinds of crime. There has been a 43.6 percent increase in Delhi's crime graph in 2013 over 2012. A staggering 73,958 cases were registered under the Indian Penal Code in 2013 up from 51,479 in the previous year.
The deteriorating law and order problem of the City is a matter of serious concern and immediate steps are required to be taken at all levels for ensuring security and safety of the citizens. Instances of young persons getting involved in criminal activities of robbing innocent persons by St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 111 putting them under threat of death, are also on rise. Trigger friendly criminals unhesitatingly and indiscriminately use dangerous firearms on helpless victims who may or not offer any resistance thereby spreading terror in the society and adversely affecting social order and the faith of people in the system. The courts are required to find answers to the new challenges facing the society and to mould the sentencing system to meet these challenges. The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should be conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of the crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is desirability to keep the offender out of circulation.
There was no previous animosity between the convict and the victim Parveen Parashar and the intent was solely monetary gain. Undue sympathy, under these circumstances, to impose inadequate sentence upon the convicts who are habitual and repeat offenders would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of this court to award a sentence having regard to the nature of the offence and the manner in which it was executed or committed. (Ref: Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 112 AIR 1991 SC 1463).
The convict Sunil Kumar is a BC (Bad Character) of Police Station Gulabi Bagh and is involved in as many as Seventeen other criminal cases and the manner in which the offence has been committed in broad daylight shows that he has no respect for law and legal process of this Country and he has an impression that perhaps the Legal System of this Country is incompetent to hold him back for his illegal activities. No doubt, the Indian Legal System particularly the Criminal Justice Mechanism has certain practical failings which is highly disturbing and to some extent appears to have shaken the faith of the people resulting into emboldening of the wrong doers but still I hold that things are not as bad as they may appear. While committing robbery in broad daylight, a person who publicly and openly declares himself to be the Supremo of the area needs to know that it is not he but the Law which is Supreme and it is the Rule of Law which Reigns and not him as was declared by him to the victim. He is, therefore, not entitled to any leniency. Keeping in view the above criminal background of the convict and the desirability and need to keep the convict out of circulation, the convict Sunil Kumar is hereby sentenced to Rigorous Imprisonment for a period of Seven (7) Years (minimum punishment prescribed for the offence under Section 397 IPC) and fine to the tune of Rs.10,000/ for the offence under Section 392 read with Section 397 Indian Penal Code. In default of payment of fine the convict St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 113 shall undergo Simple Imprisonment for a period of One Month.
It is clarified that the sentence in the present FIR shall run CONSECUTIVELY to the sentences awarded to the convict in other cases including FIR No. 220/2012, PS Bharat Nagar.
Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him, as per rules.
The convict has been informed that he has a right to prefer an appeal against the judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
One copy of the judgment and order on sentence be given to the convict free of costs and one copy of order on sentence be attached with his jail warrants.
File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU) Dated: 26.02.2014 ASJ (NW)II: ROHINI St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 114 State Vs. Sunil Kumar Etc. FIR No. 223/12 PS Ashok Vihar 15.2.2014 Present: Ld. Addl. PP for the State.
Accused Sunil Kumar in JC with Sh. Kunal Rawat Advocate. Accused Sonu @ Kaliya in JC and Rajender Kumar on bail with Sh. Rajesh Tanwar Advocate.
Vide my separate detail order dictated and announced in the open court, the accused Sunil Kumar is held guilty of the offence under Section 392 r/w 397 IPC for which he is accordingly convicted. He is, however, acquitted of the charge under Section 27 of Arms Act.
Further, the accused Sonu @ Kaliya is acquitted of the charge under Section 392 IPC. He be released if not required in any other case. The accused Rajender Kumar @ Kallan is acquitted of the charge under Section 413 IPC. His surety be discharged as per rules.
Be listed for arguments on sentence qua the convict Sunil Kumar on 20.2.2014.
(Dr. Kamini Lau) ASJII(NW)/ 15.2.2014 St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 115 State Vs. Sunil Kumar Etc. FIR No. 223/12 PS Ashok Vihar 20.2.2014 Present: Ld. Addl. PP for the State.
Convict Sunil Kumar in JC with Sh. Diwakar Sharma Advocate.
Heard part arguments on sentence. IO is directed to file the details of previous involvements of the convict and the present status by 24.2.2014. Be listed for part heard arguments on sentence thereafter on 25.2.2014.
(Dr. Kamini Lau)
ASJII(NW)/ 20.2.2014
25.2.2014
Present: Ld. Addl. PP for the State.
Convict Sunil Kumar in JC.
The details of previous involvements of the convict have been filed by the IO. Be listed for orders on sentence on 26.2.2014.
(Dr. Kamini Lau) ASJII(NW)/ 25.2.2014 St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 116 State Vs. Sunil Kumar Etc. FIR No. 223/12 PS Ashok Vihar 26.2.2014 Present: Ld. Addl. PP for the State.
Convict Sunil Kumar in JC.
Vide my separate detailed order dictated and announced in the open court, the convict Sunil Kumar is sentenced to Rigorous Imprisonment for a period of Seven (7) Years (minimum punishment prescribed for the offence under Section 397 IPC) and fine to the tune of Rs.10,000/ for the offence under Section 392 read with Section 397 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Month.
It is clarified that the sentence in the present FIR shall run Consecutively to the sentences awarded to the convict in other cases including FIR No. 220/2012, PS Bharat Nagar.
Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him, as per rules.
The convict has been informed that he has a right to prefer an appeal against the judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 117 New Delhi.
One copy of the judgment and order on sentence be given to the convict free of costs and one copy of order on sentence be attached with his jail warrants.
File be consigned to Record Room.
(Dr. Kamini Lau) ASJII(NW)/ 26.2.2014 St. Vs. Sunil Kumar Etc., FIR No. 223/12, PS Ashok Vihar Page No. 118