Delhi District Court
Sc No. 28/12. State vs . Darvesh Kumar & Others. on 15 April, 2014
SC No. 28/12. State Vs. Darvesh Kumar & Others.
IN THE COURT OF SH. ASHUTOSH KUMAR :
ADDL. SESSIONS JUDGE3 : DWARKA COURTS : DELHI.
In the matter of:
Sessions Case No. 28/2012.
FIR No. 25/2009.
PS Dwarka.
U/s 392/397/120B/34 IPC and
U/s 25/54/59 Arms Act.
State
Vs.
1.Darvesh Kumar @ Devraj, S/o Subhash Chander, R/o H. No. 278, Village Rasulpur, PO Rani Khera, PS Kanjhawla, Delhi.
2. Manoj Kumar, S/o Mahavir Singh, R/o H. No. 283, VPO Rani Khera, PS Kanjhawla, New Delhi.
3. Manish Saini, S/o Bodhan Singh, R/o H. No. 8A, Brij Vihar, Paparawat Road, Najafgarh, New Delhi.
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4. Sanjeev Kumar @ Sanju, S/o Nathu Ram Sharma, R/o Gali No. 4, Dichoun Enclave, Shashi Park, Najafgarh, Delhi. ... Accused.
Date of Institution. : 7.2.2011.
Arguments Advanced On. : 9.4.2014.
Date of Judgment. : 15.4.2014.
:: JUDGMENT ::
1. The brief facts of the case of the prosecution are that on 12.1.2009, one PCR call was received at police station Dwarka that "in front of Plot No. 24, Sector 6, Dwarka, I was in vehicle bearing registration no. DL4CAJ1743 and 34 boys came on Pulsar bike and snatched my vehicle by showing gun9911359316". The said information was reduced into writing vide DD No. 14A dated 12.1.2009 Ex PW4/A and entrusted to SI B.S. Gulia (PW15). He reached at the place of occurrence i.e. in front of Plot No. 24, Sector 6, Dwarka, where complainant (PW1) Gorakh Nath Ojha S/o late Sh. Brij Shankar Ojha R/o A186, Shyam Vihar, Goyala Road, Najafgarh, New Delhi, aged 47 years, alongwith his driver met him. Smelling something Page No. 2. Contd... ... ...
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foul both were taken separately. Complainant Gorakh Nath Ojha and his driver Sanjeev Kumar explained different versions regarding the incident and complainant was in trauma and did not furnish his written statement for legal action. After discussion with SHO, the call was kept pending to verify the facts. On 14.1.2009 (i.e. two days after the incident) in police station, complainant Gorakh Nath Ojha having become normal, got recorded his statement (Ex PW1/A) as under: "I am residing with family at the aforesaid address. I am working as Government Contractor and my office is situated at T10, Manish PlazaIII, Plot No. 10, Sector 10, Dwarka. On 12.1.2009 at about 2.00 pm, I left my office with my driver Sanju and was going to Palam Printing Press (Air Force) by my car Hyundai I10, registration no. DL4CAJ1743 of champion gold colour. At about 2.20 pm, when we reached at Plot No. 24, Sector 6, 3 boys came on one Pulsar motorcycle of black colour and got stopped our car and told that we had an accident. Thereafter, I and my driver came out of said car and had arguments with the said 3 boys and in between, one healthy boy, ran away with my car and remaining two boys also ran away from there on their abovesaid Pulsar motorcycle. There were Rs. 52,000/, one mobile phone of Samsung model SGHI 450, IMEI No. 359081012527898 having sim Page No. 3. Contd... ... ...
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card of phone no. 9810263514, which were kept in my aforesaid car. However, the aforesaid sim card from the said mobile phone was taken out by me. I can identify the said boys, if they come in front of me, who had committed theft of my aforesaid amount and mobile. Action may be taken. I have heard and understood my statement."
2. It is further the case of the prosecution that on this statement, SI B.S. Gulia (PW15) handed over rukka (Ex PW/C) to duty officer for registration of case u/s 379/34 IPC and departed for the place of incident for investigation of the case with the complainant. IO prepared site plan on the instance of complainant. On the same date i.e. 14.1.2009 in the evening when complainant completely came out of grief and again furnished his another statement as real version of the incident, wherein he stated that his vehicle was stopped by the three boys, who came on the aforesaid motorcycle, by obstructing their way and one of them pulled out the driver on the pretext of accident, another struck some revolver type weapon on the chest of complainant and snatched his mobile phone and asked him for money. On being told by complainant that money is kept on rear seat, he (assailant) checked the same and threatened the complainant for dire Page No. 4. Contd... ... ...
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consequences, if he (complainant) told about the incident to anyone, the two ran away with his car and the third one ran away on his motorcycle. On emerging of these new facts, this case was discussed with SHO and he recommended for invoking Section 392/34 IPC instead of 379/34 IPC. On 15.1.2009, the car was found abandoned in front of water taken near Sai Baba Mandir. The same was taken to police station, which was subsequently released to the complainant on superdari. On 20.1.2009, an information was received from Inspector AATS, South West District, regarding arrest of accused persons namely Sanjeev Kumar @ Sanju, Manish Saini, Manoj Kumar and Darvesh Kumar @ Devraj, by their team in another case FIR No. 26/09, u/s 25/54/59 Arms Act of PS Dabri and the accused persons also confessed their involvement in this case. On this information, IO went to them and collected the copies of documents of the abovesaid other case FIR in which accused Darvesh Kumar @ Devraj was arrested on 19.1.2009 with the country made katta and motorcycle bearing registration no. HR36L0558, which was also used by the accused persons to rob the complainant in this case. On his (accused Darvesh Kumar @ Devraj) instance only, the other three accused Page No. 5. Contd... ... ...
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persons namely Sanjeev Kumar @ Sanju, Manish Saini and Manoj Kumar were arrested on 20.1.2009 by AATS, South West District, u/s 41.1 CrPC. AATS, South West District, also recovered cash Rs. 8,000/ (Ex P4) as booty and copy of registration certificate (Ex P3) of robbed car no. DL4CAJ1743 from the possession of accused Manish Saini, cash Rs. 10,000/ (Ex P5) and a cheque book (Ex P2) of complainant from the possession of accused Manoj Kumar. After taking permission from the concerned Court, IO interrogated all the abovesaid four accused persons and recorded their confession statements and finding sufficient evidence, IO arrested all the aforesaid four accused persons in this case u/s 392/34 IPC. On the request of IO, judicial TIP was conducted by the concerned ld. MM. Accused Darvesh Kumar and Manoj Kumar, who had undergone judicial TIP, were correctly identified by the complainant, whereas accused Manish Saini refused the TIP, but was identified subsequently by the complainant, while he was being produced from JC in the Court. As per the contents of FIR, supplementary statements and recoveries, Section 27/54/59 Arms Act was also added in this case. There was sufficient evidence to charge sheet all the aforesaid accused persons Page No. 6. Contd... ... ...
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in this case. Hence, charge sheet u/s 392/397/34/120B IPC r/w/s 27/54/59 Arms Act was prepared and filed before the concerned Court against all the aforesaid four accused persons.
3. After filing of the charge sheet, cognizance was taken by the concerned ld. MM and complete copies were supplied to the accused persons and since the offence u/s 397 IPC was sessions triable, therefore, the case was committed to the Court of Sessions.
4. Vide order dated 10.2.2011, Sh. Virender Bhat, ld.
Predecessor, had framed the charge u/s 392 r/w/s 34 IPC against all the aforesaid four accused persons and additional charge u/s 397 IPC against accused Darvesh Kumar @ Devraj, to which they pleaded not guilty and claimed trial.
5. The prosecution has examined 16 witnesses in support of its case.
6. PW1 Gorakh Nath Ojha (complainant) was the most material and eye witness of this case, who has described Page No. 7. Contd... ... ...
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the incident in detail. He has deposed about his statement Ex PW1/A recorded by the police, written application Ex PW1/B to the SHO PS Dwarka on the date of incident stating that he was not in a fit state of mind to make a statement, seizure memo Ex PW1/C regarding recovery of his car, his superdarinama Ex PW1/D for released of his aforesaid car, said car Ex P1 in his testimony, his cheque book issued by Punjab National Bank in respect of saving bank account no. 4447000100020266 containing 13 blank cheque leaves as Ex P2 (allegedly recovered from the possession of accused Manoj Kumar), registration certificate of said Hyundai I10 car as Ex P3 (photocopy of which was allegedly recovered from the possession of accused Manish Saini), 16 currency notes of Rs. 500/ denomination (totaling to Rs. 8,000/) (allegedly recovered from accused Manish Saini), which were handed over to the accused after taking out from his (complainant) pocket as Ex P4, 20 currency notes of Rs. 500/ denomination (totaling to Rs. 10,000/) (allegedly recovered from the possession of accused Manoj Kumar), which were handed over to the accused after taking out from his pocket as Ex P5 and four photographs of aforesaid car of complainant taken by the complainant Page No. 8. Contd... ... ...
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from different angles as Ex P6.
7. PW2 HC Vijay Singh has deposed that on 14.1.2009, duty officer handed over to him copy of FIR and original tehrir for handing over to IO and he took the same at the spot and handed over the same to IO.
8. PW3 HC Ravinder Pal has deposed that on 20.1.2009, he joined the investigation of case FIR No. 26/09, u/s 25/54/59 Arms Act of PS Dabri alongwith IO SI Virender Kumar and accused Darvesh already in the custody of IO, made disclosure statement about the present case and involvement of other accused. He has further deposed that he disclosed that his (accused Darvesh) other associates Sunil Kumar and two other (whose names he did not recollect) could be arrested from Dhansa Stand, Near Wall of Suraj Cinema, Najafgarh. Thereafter, he alongwith SI Virender, HC Rajender, Const. Zafar, Const. Vijay, HC Manoj and accused Devraj reached at Dhansa Stand, Najafgarh, Suraj Cinema and from there at the instance of accused Devraj, the other three accused were apprehended. (PW3 did not identify the accused correctly by their names.) He further deposed that the accused Page No. 9. Contd... ... ...
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persons were interrogated and arrested and they made disclosure statements about the present case. He further deposed that he prepared the arrest memos of accused Manish Saini, Manoj Kumar and Sanjeev Kumar, vide Ex PW3/A, Ex PW3/B and Ex PW3/C respectively and their personal searches were got conducted vide memos Ex PW3/F, Ex PW3/E and Ex PW3/D respectively and their disclosure statements were recorded vide Ex PW3/G, Ex PW3/J and Ex PW3/H respectively. He further deposed that he does not remember what was recovered at the instance of the accused. He further deposed that accused Manish Saini had got recovered one photocopy of registration certificate of vehicle no. DL4CAJ1743 and Rs. 8,000/ consisting of currency notes of Rs. 500/ denomination from the almirah lying on the ground floor of his house no. 8A, Brij Vihar, Paprawat Road, Najafgarh and the same were seized vide memo Ex PW3/K. He has also deposed that accused Manoj had got recovered cheque book of Punjab National Bank having account no. 4447000100020266 (belonging to the complainant) and Rs. 10,000/ from the almirah lying in the bedroom of his house no. 283, Village Rani Hera, Delhi, and the same were seized vide memo Ex PW3/L. He has further Page No. 10. Contd... ... ...
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deposed that he had prepared a kalandra u/s 41.1.D CrPC Ex PW3/M. This witness had correctly identified the case properties allegedly recovered at the instance of accused Manoj and Manish.
9. PW4 HC Vinod Kumar has deposed that on 12.1.2009, he was working as duty officer and at about 2.32 pm, he received a call from PCR, which was recorded by him vide DD No. 14A, photocopy of same is Ex PW4/A. He further deposed that on 14.1.2009, he was working as duty officer and at about 10.40 pm, SI B.S. Gulia handed over to him a rukka and on the basis of said rukka vide kaymi entry no. 32A, he (PW4) registered the case vide FIR No. 25/09 u/s 379/34 IPC and made endorsement on the rukka Ex PW4/C and handed over the copy of FIR Ex PW4/B and original rukka to Const. Vijay.
10. PW5 ASI Rajender Singh has deposed that on 19.1.2009, since there had been frequent incidents of robbery and dacoity in Dwarka area, senior police officials had deployed secret informers for getting clue about the culprits and it came to knowledge through secret informers that Devraj and Manoj are involved in these Page No. 11. Contd... ... ...
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incidents. He further deposed that on 19.1.2009 at 8.15 pm, secret informer informed him (PW5) that Devraj would arrive at Jindal Public School, Dabri, at about 9.30 or 10.00 pm and he (PW5) apprised Inspector Ranjit Singh about the said information and after making entry in the daily diary, a raiding party was formed comprising of HC Ravinder Pal, HC Manoj, Const. Zafar, Const. Amit besides him, under the supervision SI Ashok Kumar. He further deposed that they left the office in a government gypsy bearing registration no. DL1CJ3561 driven by Const. Anand. He further deposed that secret informer was also with them and at 9.00 pm, they reached Dabri, Pankha Road and asked 56 passerby to join the raiding party, but all of them refused to do so. He also deposed that at 9.15 pm, they laid siege near Jindal Public School and a person came on a motorcycle towards that place and was stopped in front of the gate of Jindal Public School. Secret informer informed them that he is Devraj. Thereafter they waited for 10 minutes and when he (Devraj) was about to leave that place, he (PW5) alongwith HC Manoj, apprehended him (accused Devraj). He has further deposed that on taking cursory search of Devraj, a desi revolver (katta) was recovered from his left dub (pant Page No. 12. Contd... ... ...
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pocket) and a live cartridge was also found inside the katta and the sketch of katta Ex PW8/A as well as cartridge, were prepared. He proved the photocopy of seizure memo of country made revolver as Ex PW8/B. This witness had correctly identified the accused Devraj during his testimony. He further deposed that he was member of raiding party, which arrested accused Manish, Manoj and Sanjeev u/s 41(1) CrPC on 20.1.2009. He also deposed that on 20.1.2009, accused Manish had got recovered the registration certificate of Hyundai I10 car and Rs. 8,000/ from his house and accused Manoj had got recovered Rs. 10,000/ in cash and a cheque book of Punjab National Bank from his house. He further deposed that thereafter, three accused were got medically examined and produced before the concerned ld. MM and has correctly identified the accused Manoj, Manish and Sanjeev during his deposition.
11. PW6 Sr. V.R. Anand, Sr. Scientific Officer (Bullistic), FSL, Rohini, Delhi, has deposed that on 28.5.2009, he examined the country made pistol .315 inch bore Ex F1 and one cartridge of 8 mm/.315 inch Ex A1, which are the case property. He further deposed that country made Page No. 13. Contd... ... ...
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pistol Ex F1 was in working order and test fire was conducted successfully. He further deposed that the cartridge Ex A1 was live one. He further deposed that the cartridge Ex A1 was test fired through the country made pistol .315 inch bore marked Ex F1. He further deposed that the Ex F1 and Ex A1 were firearm/ammunition as defined in the Arms Act, 1959. He further deposed that all these exhibits were sealed with the seal of "VRA, FSL, Delhi" after examination. He proved the photocopy of his detailed report Ex PW6/A, bearing his signature at point A (original of the report was seen in file pertaining to case FIR No. 26/09 of PS Dabri, which was summoned for that date of evidence and compared with the photocopy).
12. PW7 Const. Amit Kumar has deposed that on 20.1.2009, accused Darvesh was in the custody of HC Ravinder Kumar and on that day, he (accused Darvesh) disclosed that accused Manoj, Manish Saini and Sanjeev would come at Suraj Cinema, Najafgarh, and they (police officials) can be apprehended if the raid is conducted and he (accused Darvesh) further disclosed that they (Manoj, Manish and Sanjeev) were also involved with him (Darvesh) in the present case. He further deposed that Page No. 14. Contd... ... ...
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thereafter, on this information, Inspector R.S. Dhaka formed a raiding party consisting himself (PW7), SI Ashok Kumar, HC Ravinder Kumar, HC Manoj Kumar, HC Rajinder Singh, Const. Zafar Khan and driver Anand and they left office at 5.20 pm in the morning in a government vehicle for the spot. He further deposed that accused Darvesh was also with them and at about 6.15 pm, they reached at Dhansa Stand, Near Surat Cinema, Najafgarh, where all the three accused Manish Saini, Manoj and Sanjeev were already standing near the adjoining wall of Surat Cinema. He further deposed that at the instance of accused Darvesh, accused Manish, Manoj and Sanjeev were apprehended and HC Ravinder made inquiries from accused Manish, Manoj and Sanjeev and they were arrested vide Ex PW3/A, Ex PW3/B and Ex PW3/C respectively and their personal search were got conducted vide memos Ex PW3/D, Ex PW3/E and Ex PW3/F and their disclosure statements were recorded vide Ex PW3/G, Ex PW3/J and Ex PW3/H respectively. He further deposed that accused Manish Saini had got recovered one photocopy of registration certificate of vehicle no. DL4CAJ1743 and Rs. 8,000/ from his house and the same were seized vide memo Ex PW3/K. He has also Page No. 15. Contd... ... ...
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deposed that accused Manoj has got recovered cheque book of Punjab National Bank and Rs. 10,000/ from his house at Village Rani Khera, Delhi, and the same were seized vide memo Ex PW3/L. He proved the cheque book pertaining to account no. 4447000100020266 issued by Punjab National Bank as Ex P2, 20 currency notes of Rs. 500/ denomination totaling to Rs. 10,000/, recovered from the house of Manoj as Ex P5, 16 currency notes of Rs. 500/ denomination totaling to Rs. 8,000/, recovered from the house of Manish as Ex P4 and photocopy of registration certificate in the name of complainant Gorakh Nath Ojha in respect of car bearing registration no. DL4CAJ1743 as Ex P3.
13. PW8 HC Manoj Kumar has deposed that on 19.1.2009 at about 8.008.15 pm, HC Rajender received a secret information and on the basis of the same, SI Ashok Kumar formed a raiding party including HC Rajinder, HC Ravinder Pal, Const. Zafar, Const. Amit and him (PW8). He further deposed that they all were in civil dress and left the office at about 8.008.45 pm, in a government vehicle. He further deposed that secret informer was also with them and at about 9.15 pm, they reached Pankha Page No. 16. Contd... ... ...
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Road, Near Dabri Mor and on reaching there, HC Rajinder requested 45 passerby to join the investigations, but all of them refused to joint the same. He also deposed that at about 9.30 pm, they reached in front of the main gate of Sanjay Jindal Public School at Dabri Palam Road and after about 15 minutes of their reaching, accused Darvesh was seen coming from Pankha Road on a motorcycle and stopped his motorcycle in front of the gate of Sanjay Jindal Public School. He further deposed that they were standing at the distance of 4050 yards away from main gate of Sanjay Jindal Public School. Secret informer pointed out towards accused Darvesh and at his (secret informer) instance, they apprehended accused Darvesh. He has further deposed that HC Rajinder took a formal search of accused Darvesh and during formal search one country made pistol was recovered from the possession of accused Darvesh. HC Rajiner prepared sketch memo Ex PW8/A of the country made pistol and the said pistol was unloaded and one live cartridge was taken out from it. He further deposed that the said pistol was seized vide memo Ex PW8/B and the said motorcycle was seized vide Ex PW8/C. He further deposed that HC Rajinder prepared rukka, which was handed over to him (PW8) for Page No. 17. Contd... ... ...
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registration of the case and from the spot, he (PW8) went to police station and got FIR No. 26/09 Ex PW8/D registered. He further deposed that after registration of the case, he (PW8) taking copy of FIR and original rukka, came back at the spot and handed over the same to HC Rajinder. He also deposed that accused Darvesh was arrested vide memo Ex PW8/E and his (accused Darvesh) personal search was got conducted and thereafter, disclosure statement Ex PW8/F of accused Darvesh was got recorded and investigation of this case was entrusted to SI Virender. He further deposed that pursuant to disclosure statement of accused Darvesh, he (accused Darvesh) led them (police officials) to Dhansa Road, Near Suraj Cinema, Najafgarh, where other three accused Manoj, Manish and Sanjeev were already standing, who were arrested u/s 41.1.(a) CrPC vide arrest memos Ex PW3/A, Ex PW3/B and Ex PW3/C. He further deposed that personal searches of said accused persons were got conducted at the spot. He further deposed that from the spot, they went to house of accused Manish, where he (accused Manish) got recovered a photocopy of registration certificate and Rs. 8,000/ in cash from an almirah, where were seized vide seizure memo Ex PW3/K. Page No. 18. Contd... ... ...
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Thereafter, they went to house of accused Manoj, where he (accused Manoj) got recovered a cheque book of Punjab National Bank and Rs. 10,000/ in cash, which were seized vide seizure memo Ex PW3/L. He deposed about the cheque book pertaining to account no. 4447000100020266 issued by Punjab National Bank as Ex P2, 20 currency notes of Rs. 500/ denomination totaling to Rs. 10,000/ recovered from the house of Manoj as Ex P5, 16 currency notes of Rs. 500/ denomination totaling to Rs. 8,000/ recovered from the house of Manish as Ex P4, photocopy of registration certificate in the name of complainant Gorakh Nath Ojha in respect of car no. DL4CAJ1743 as Ex P3, pistol of silver colour recovered from the possession of accused Darvesh as Ex P6 and motorcycle of make Bajaj Platina of black colour bearing registration no. HR36L0558 as Ex P7.
14. PW9 SI Virender Kumar has deposed that on 19.1.2009, on the direction of Inspector AATS, he reached the spot i.e. Palam Dabri Road, Near Jindal Public School at about 10.30 pm, where HC Rajender alongwith other police staff were found present and had already apprehended accused Darvesh Kumar @ Devraj. He further deposed that HC Page No. 19. Contd... ... ...
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Manoj handed over to him (PW9) the copy of FIR and original endorsement in respect of case FIR No. 26/09, u/s 25/54/59 Arms Act, PS Dabri for further investigation. He further deposed that HC Rajender handed over to him (PW9) the sealed pullanda containing country made pistol and the relevant documents including seizure memo and also handed over to him (PW9) the accused Darvesh Kumar. He further deposed that he arrested the accused Darvesh Kumar vide arrest memo already Ex PW8/E, bearing his signature at point B. (The original of the said arrest memo is placed in case file FIR No. 26/09, PS Dabri, u/s 25/54/59 Arms Act, which was produced by the Ahlmad of the concerned Court, (original was seen and returned)). He further deposed that the accused was interrogated, who admitted his (accused) guilt about the involvement in case FIR No. 25/09, PS Dwarka i.e. the present case and also disclosed the name of coaccused persons. He further deposed that he recorded the disclosure statement Ex PW8/F of the accused Darvesh Kumar @ Devraj. (The original of the said disclosure statement is placed in case file of FIR No. 26/09, PS Dabri, u/s 25/54/59 Arms Act, which was produced by the Ahlmad of the concerned Page No. 20. Contd... ... ...
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Court, (original was seen and returned)). He further deposed that the accused Darvesh Kumar @ Devraj thereafter voluntarily led the police party consisting of him (PW9), HC Ravinder, SI Ashok Kumar, Const. Amit, Const. Jafar and HC Manoj to Suraj Cinema, Dhansa Stand, Najafgarh, and got apprehended the other three accused persons Sanjeev Kumar, Manoj Kumar and Manish Saini. He further deposed that all the aforesaid three accused persons were arrested by HC Ravinder u/s 41 (1) CrPC. He further deposed that he recorded DD No. 2 dated 20.1.2009 regarding departure for the further investigation of FIR No. 26/09, PS Dabri with accused Darvesh Kumar @ Devraj and other police staff. He proved the attested copy of DD No. 2 as Ex. PW9/A.
15. PW10 Sh. Vishal Gogne, the then ld. MM, Karkardooma Courts, Delhi, has deposed that on 23.1.2009, he was posted as Metropolitan Magistrate3, Dwarka Courts, New Delhi, and on that day, he was working as second link MM to the Court of Sh. Sanjay Jindal, ld. ACMM, Dwarka Courts. He further deposed that application for TIP of accused Manish Saini, Manoj Kumar and Darvesh Kumar @ Devraj moved by SI B.S. Gulia of PS Dwarka Courts, in Page No. 21. Contd... ... ...
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case FIR No. 25/09, u/s 392/34 IPC/120B IPC of PS Dwarka, New Delhi, which was marked to him. He further deposed that the said application was put up before him as the second link MM and he fixed the date of TIP as 28.1.2009 at 2.00 pm at Tihar Jail, as accused persons were stated to be in JC at Tihar Jail. He further deposed that on 28.1.2009 and further on next date i.e 29.1.2009, TIP of accused Manish Saini could not be conducted and he fixed the next date of conducting TIP of accused Manish Saini as 2.2.2009 and on 2.2.2009, he visited Central Jail No. 5, Tihar for conducting TIP of accused Manish Saini. He further deposed that accused was identified by Sh. Krishan Kumar, Assistant Superintendent, Jail No. 5, Tihar and he (PW10) explained the meaning of TIP in Hindi to the accused and accused submitted that he does not want to join the TIP proceedings. He further deposed that he had warned and cautioned the accused that if he does not join the TIP proceedings and refused, than adverse inference may be drawn against him (accused) during the trial, but the accused persisted to not joining of the TIP and the statement of accused Manish Saini was recorded and as such TIP proceedings were concluded. He further Page No. 22. Contd... ... ...
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deposed that he annexed the certificate to the TIP proceedings. He proved the TIP proceedings of accused Manish Saini as Ex PW10/A. He further proved the application for the TIP proceedings moved by IO is Ex PW10/B and the order sheet by which the date was fixed for the TIP is Ex PW10/C. He further deposed that another application dated 3.2.2009 was moved by the IO to provide copy of TIP proceedings of accused Manish Saini and the same was allowed as per rules and the said application is Ex PW10/D. He further deposed that on 28.1.2009, he conducted the TIP proceedings of accused Manoj Kumar at Central Jail, Tihar and the accused Manoj Kumar was duly identified by Sh. Badri Datt, Assistant Superintendent, Jail No. 7, Tihar. He further deposed that he had explained the meaning of TIP in Hindi to the accused Manoj Kumar and accused showed his willingness to join the TIP proceedings and he conducted the TIP proceedings in which witness complainant Gorakh Nath Ojha, has confidently and correctly identified accused Manoj Kumar. He further deposed that he annexed the certificate to the TIP proceedings and the TIP proceedings of accused Manoj Kumar is Ex PW10/E. He further deposed that the IO Page No. 23. Contd... ... ...
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moved an application dated 28.1.2009 to provide copy of TIP proceedings, which was allowed. He proved the said application as Ex PW10/F. He further deposed that on 28.1.2009, he also conducted TIP of accused Darvesh Kumar @ Devraj by visiting Central Jail, Tihar. He further deposed that on 28.1.2009, he recorded the TIP proceedings Ex PW10/G of accused Darvesh Kumar @ Devraj.
16. PW11 Const. Jitender Singh has deposed that on 20.1.2009, he joined the investigation in this case with IO SI B.S. Gulia and reached at Dwarka Courts. He further deposed that the accused persons Manoj Kumar, Darvesh Kumar @ Devraj, Manish Saini and Sanjeev Kumar @ Sanju, who were already arrested by the AATS, South West District, and were produced in the Court, were interrogated after taking permission from the Court and were formally arrested in the present case, vide arrest memos Ex PW11/A, Ex PW11/B, Ex PW11/C and Ex PW11/D respectively. He further deposed that disclosure statements Ex PW11/E, Ex PW11/F, Ex PW11/G and Ex PW11/H respectively of said accused persons were recorded. He further deposed that all the aforesaid four Page No. 24. Contd... ... ...
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accused persons were produced in muffled face in the Court.
17. PW12 Naresh Kumar has deposed that complainant Gorakh Nath Ojha was his neighbor and he (PW12) knew him (complainant) well. He further deposed that he knew his (complainant) driver Sanjeev Kumar @ Sanju, who was driving the vehicle of complainant since last 45 years prior to the incident and he (PW12) identified the accused Sanjeev Kumar @ Sanju, who was residing in Shyam Vihar Colony. He further deposed that he saw accused Sanjeev Kumar @ Sanju alongwith accused Manish Saini on many occasions prior to the incident. He identified the accused Manish Saini. He further deposed that they were having talking terms with each other prior to the incident.
18. PW13 Sanjeev Kumar has deposed that he is a driver by profession and residing at D154, Shyam Vihar, Deenpur, Najafgarh, Delhi43 since last about 1718 years. He further deposed that he knew accused Sanjeev Kr. @ Sanju, who was also residing in his colony. He further deposed that he also knew accused Manish Saini, who was running a CD shop at the time of incident. He Page No. 25. Contd... ... ...
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further deposed that he had seen once or twice, the accused Sanjeev Kr. @ Sanju and accused Manish Saini, meeting and talking with each other. He further deposed that after the incident, he came to know from Ojha uncle (complainant) that accused Sanjeev Kr. @ Sanju had snatched his (complainant) vehicle and they have been arrested by the police in the said case.
19. PW14 SI Suresh Kumar has deposed that on 4.4.2010, further investigation of this case was entrusted to him by the SHO concerned by way of handing over the case file through MHC(R) and after going through the case file, further investigation was done by him. He further deposed that during investigation, public witnesses Naresh Kumar and Sanjeev Kumar were examined about this case and their statements u/s 161 CrPC were recorded and after completion of investigation, charge sheet was filed in the Court through SHO concerned.
20. PW15 SI B.S. Gulia has deposed that he is IO of the present case and has deposed about the investigation carried out by him in the present case and the said deposition is as per the prosecution version. Page No. 26. Contd... ... ...
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21. PW16 Ravi Shankar has deposed about the summoned original judicial file of case FIR No. 26/09 u/s 25/54/59 Arms Act, PS Dabri, pending before the Court of Dr. Jagminder Singh, the then ld. MM, Dwarka Courts, Delhi, for trial. He further deposed about some of the original documents placed in that case file, which were relevant in this case also. He further deposed that the original computerized copy of FIR, copy of which was already Ex PW8/D, the original disclosure statement of accused Darvesh Kumar @ Devraj, dated 20.1.2009, copy of which was already Ex PW8/F, original arrest memo of accused Darvesh Kumar @ Devraj, copy of which was already Ex PW8/E, original seizure memo of motorcycle bearing no. HR36L0558, copy of which was already Ex PW8/C, original seizure memo of seized desi katta (country made pistol), copy of which was already Ex PW8/B, original sketch of desi katta (country made pistol), copy of which was already Ex PW8/A, were available in the judicial file brought by him. (Original were seen and returned).
22. Thereafter, separate statements of accused persons u/s 313 CrPC were recorded and all the incriminating Page No. 27. Contd... ... ...
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circumstances were put to the accused persons, to which stand of the accused persons was of general denial and they stated that they are innocent and have no concern with the present case and that they have been implicated falsely in the present case.
23. The accused persons have examined 2 witnesses in support of their defence.
24. DW1 WConst. Anu Kumari has deposed that as per the summons received, the record to be brought was pertaining to the call detail dated 17.1.2009 made from mobile no. 9350116462 on 17.1.2009 at phone no. 100, but no such record pertaining to said call is available in her office and she had received a call on 17.1.2009 from mobile no. 9350110462, the record of which has has brought on the basis of photocopy of CPCR form, attached with the summons. She further deposed that on 17.1.2009 at about 12.30 pm, she had received a phone call from mobile no. 9350110462, which was made by Dr. B.R. Saini, who informed that 1012 persons, came to his house i.e. House No. 8/A, Durga Vihar Phase 1, Najafgarh, and lifted his two boys and three mobile Page No. 28. Contd... ... ...
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phones. She further deposed that it was further informed by said caller that he does not know the said 1012 persons. She further deposed that she forwarded the said message to concerned net/PCR van, through CPCR form Ex DW1/A and in reply to the said call, PCR official informed "special staff wale utha kar le gaye. Pata nahi kon the.".
25. DW2 Bodan Ram has deposed that on 17.1.2009 at about midnight, some persons knocked the door of his house and forcible entered into his house. He further deposed that his sons Manish and Raj Kumar were sleeping in their home and were forcibly take with them and the said person, who forcibly entered into his home, were in civil dress and they did not disclose their identity. He further deposed that he immediately called at phone no. 100 and PCR reached at his home and after inquiry, PCR officials informed him that his aforesaid two sons were lifted by the police officials of Special Staff. He further deposed that on next date i.e. 18.1.2009, he visited office of Special Staff at Dhaula Kuan, where his aforesaid two sons and other two accused Manoj and Darvesh, were also present there. He further deposed that all the aforesaid four Page No. 29. Contd... ... ...
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persons, Mr. Ojha (complainant), Const. Naresh Kumar and other police officials, were present in one room at the office of Special Staff at Dhaula Kuan. He further deposed that he knew Mr. Ojha and Const. Naresh Kumar, as they were residing in his locality and he is having a clinic in the same locality. He further deposed that on inquiry from the police officials of Special Staff, he came to know that his sons were booked in a criminal case and the police officials cannot help him. He further deposed that on the same day i.e. 18.1.2009, the police officials released his son Raj Kumar and the police officials directed him to file bail application in appropriate Court for release of his son Manish.
26. I have heard Sh. Pramod Kumar, ld. Addl. PP for State and Sh. Mahipal Singh, ld. counsel for accused persons. I have carefully perused the entire record including written submissions filed on behalf of the accused persons and the following case laws relied upon by the ld. Counsel for accused persons:
1. Suresh @ Bona Vs. State, 2013 (4) JCC 2876. Page No. 30. Contd... ... ...
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2. Montu @ Bahadur Vs. State (NCT of Delhi), 2009 (4) JCC 3074.
3. Nadeem Vs. State, 2010 (4) JCC 2842.
4. Sonu Arora Vs. State, 2010 (3) 2354.
5. Ten Singh Vs. State (Delhi Admn.), 1995 JCC 585.
27. The most important and the only eye witness regarding factum of incident to the case of the prosecution is complainant/PW1 Gorakh Nath Ojha. PW1 has deposed that on 12.1.2009 at about 2.00 pm, he was going from his office to one of his sites and was traveling in his Hyundai I10 car bearing registration no. 1743 of golden colour, which was being driven by his driver Sanju (one of the accused, who was correctly identified during deposition of PW1). He has further deposed that when they just left his office, he realized that the driver was driving the vehicle very slowly and he (complainant) asked him (driver) why he (driver) is driving slowly to which he (driver) replied that he (complainant) had asked him (driver) to drive slowly. He also deposed that at the same Page No. 31. Contd... ... ...
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time, he (driver) was looking again and again in the rear view mirror of the car and when they took left (turn) at Sector 6 crossing, the other three accused came on a motorcycle and stopped the same right in front of his car. The driver (accused Sanju) of his car stopped the car and came out of it and accused Manoj and Darvesh came inside the car and accused Darvesh sat on the rear seat besides him (complainant) and accused Manoj sat on the driver seat and accused Manoj started the car and drove it very fast. He further deposed that the accused Darvesh tried to beat him and thereafter, he (accused) pointed a pistol on his (complainant) head and demanded money or whatever he (complainant) had in his possession. He further deposed that he (complainant) had a packet of Rs. 500/ notes (totaling to Rs. 50,000/) in the front pocket of his pant, which he took out and handed over to accused Darvesh. Accused Darvesh told him (complainant) to handover whatever else he had in his possession. He further deposed that he (complainant) had around Rs. 2,000/ in his other pockets, which he also handed over to him (accused). Meanwhile, accused Manoj took the vehicle towards a drain near Sector 21, Dwarka. He further deposed that on the way Darvesh Page No. 32. Contd... ... ...
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was telling Manoj that he (accused Darvesh) will shoot him (complainant) with the pistol (Ex F1), but Manoj told him (accused Darvesh) to leave him (complainant) as he (complainant) appeared to be a gentleman. Thereafter, he (complainant) requested them to leave him (complainant) with his vehicle, but they told him (complainant) how they (accused Manoj and Darvesh) will go if they (accused Manoj and Darvesh) handed over the vehicle to him (complainant). He further deposed that he (complainant) had a mobile phone also with him (complainant). They (accused Manoj and Darvesh) took out the sim card from the mobile phone, handed over it to him (complainant) and kept the mobile phone in the vehicle. The mobile phone was of make Samsung and was of dark red colour. They (accused Manoj and Darvesh) threw him (complainant) out of the vehicle near the drain at Sector 21, Dwarka and fled alongwith his (complainant) car. He further deposed that he (complainant) went to the police picket near CRPF Camp, Sector 19, Dwarka, which was nearby and informed about the incident to two police persons present there. After requesting them, he (complainant) took the mobile phone of one of the police man and made a call at telephone no. 100. He Page No. 33. Contd... ... ...
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(complainant) also informed his family members, who in turn informed his friends and police reached the aforesaid spot i.e. near police picket, Sector 19 and they (police) took him (complainant) to the police station Dwarka in their own vehicle and his statement was recorded in the police station. He further deposed that his (complainant) statement was again recorded after 23 days, on which he had put his signatures. He has further deposed that he has seen his statement Ex PW1/A in the Court file, which bears his signature at point A, but it is not factually correct and it does not contain the true version of events, which he (complainant) had told to the police. He further deposed that he (complainant) does not know whether any such statement of his was recorded by the police, which was true and correct. He has further deposed that he had submitted a written application Ex PW1/B to the SHO PS Dwarka on the date of incident stating that he was not in a fit state of mind to make a statement. He further deposed that he did not see the face of the third person, who was on the motorcycle besides accused Manoj and Darvesh and he cannot recognize him and cannot say whether fourth accused present in the Court is the same person or not. He also deposed that his car Page No. 34. Contd... ... ...
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was recovered near the water tank in Najafgarh on the third day of the incident and police had seized the same, vide memo Ex PW1/C. He (complainant) had identified the accused Manoj and Darvesh during judicial TIP proceedings and has also proved his aforesaid car as Ex P1. He has also deposed about his cheque book containing 13 blank cheque leaves relating to account no. 4447000100020266 as Ex P2, which was in the robbed car on the date of incident as the same was kept in the dash board of his car and the same was taken away by the accused from there. He has also proved the photocopy of registration certificate of his aforesaid Hyundai I10 car as Ex P3, which was produced by the MHC(M) and had stated that the same was taken out from the dash board by the accused persons. He had also identified the 16 currency notes of Rs. 500/ denomination (totaling to Rs. 8,000/) as Ex P4 and had stated that the same were handed over by him to the accused after taking out from his (complainant) pocket. He had also identified the 20 currency notes of Rs. 500/ denomination (totaling to Rs. 10,000/) as Ex P5 and had stated that the same were handed over by him to the accused after taking out from his (complainant) pocket. Page No. 35. Contd... ... ...
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28. Thus, as per the deposition of complainant (PW1), he was robbed by three persons of his Hyundai I10 car and aforesaid amounts, Samsung mobile handset and his cheque book containing 13 blank cheque leaves and registration certificate of vehicle were also in the dash board of the said car taken away by robbers and his statement was recorded in the police station on the date of incident itself and again after 23 days. Further, the said testimony of the complainant seems to be corroborated by DD No. 14A Ex PW4/A regarding the call of robbery by three boys, made by the complainant to PCR, after the incident from mobile phone of one of the two policemen present at the police picket at some distance from the spot. However, as per the story of the prosecution, the complainant was in trauma and did not got recorded his statement on the date of incident i.e. on 12.1.2009 and made the complaint only on 14.1.2009 vide Ex PW1/A. However, the said statement Ex PW1/A is regarding theft of the aforesaid I10 car by three boys in the guise of involving the complainant in arguments regarding having caused the accident. As per statement Ex PW1/A of complainant, Rs. 52,000/ and one mobile Page No. 36. Contd... ... ...
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phone of Samsung model SGHI 450 (IMEI No. 359081012527898 of which was taken out by complainant) kept in the dash board of aforesaid car, were taken by one healthy boy out of three robbers. Initially case u/s 379/34 IPC was registered against three unknown accused persons on the basis of initial statement Ex PW1/A dated 14.1.2009 of the complainant (after two days of incident), but as per the further story of the prosecution, the complainant came out of his grief in the evening on 14.1.2009 and then made another statement regarding actual incident, which appears broadly to be as per the testimony of the complainant/PW1. However, it has not been explained by the prosecution as to when complainant/PW1 had made statement (as per deposition of the complainant) on the same date of incident i.e. on 12.1.2009 regarding the incident, then why the said statement was not brought on record and case was not registered on that basis. If Ex PW1/A was the said initial statement of the complainant, then how it is bearing the date 14.1.2009 instead of 12.1.2009. Further, once as per the case of the prosecution the complainant was in trauma after the incident on 12.1.2009 did not get recovered his statement Page No. 37. Contd... ... ...
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on that day and came out of same on 14.1.2009 and then made the statement Ex PW1/A, then why Ex PW1/A was not regarding robbery, but is about theft. Further, how come the complainant having come out of trauma and making the first statement Ex PW1/A, again came out of grief in the evening on 14.1.2009 and made another statement regarding actual incident of robbery. Also, the complainant/PW1 Gorakh Nath Ojha has deposed that in his examination in chief that his statement Ex PW1/A bearing his signature, is not factually correct and it does not contain the true version of events, which he had told to the police. Further, in his cross examination, he has deposed that his statement Ex PW1/A is partly true and partly untrue, without specifying as to which part is true and which part is untrue. Also, he has stated in his testimony that he does not know whether his any statement regarding true and correct version was recorded by the police or not. He has further deposed in his cross examination that he does not recollect whether police has recorded his statement other than Ex PW1/A, although, he had visited the police station about 12 times after his aforesaid statement recorded. In view of the aforesaid discrepancies and in view of the fact that the Page No. 38. Contd... ... ...
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initial complaint Ex PW1/A of the complainant was recorded regarding theft of Hyundai I10 car, Rs. 52,000/ cash and Samsung mobile phone instrument, as mentioned above, there is doubt that the offence of robbery as per prosecution version had actually taken place. Since there is discrepancy between Ex PW1/A regarding theft and testimony of complainant/PW1 regarding robbery, therefore, either it was actually a case of theft as mentioned in Ex PW1/A as there was no justifiable reasons as to why the complainant would given a wrong complaint of theft as initial version after two days of incident on 14.1.2009 or it was actually a case of robbery as deposed by the complainant and the investigating agency goofed up the matter for the reasons best known to it and converted the case of robbery into the case of theft on the basis of statement of the complainant made on the date of incident itself and made the complainant sign his undated statement regarding theft after the incident on the same date and subsequently mentioned the date as 14.1.2009 and, accordingly, a case u/s 379/34 IPC was registered on 14.1.2009 initially. But due to some or the other reason on the same date on 14.1.2009 in the evening another Page No. 39. Contd... ... ...
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statement of complainant regarding robbery was recorded and offence was converted to u/s 392/397/34 IPC. In both the cases, in my view since there is discrepancy and it cannot be said as to which of the two version is correct, therefore, benefit regarding offence of robbery has to be given to the accused persons. However, robbery is either theft or extortion. Thus, every robbery can be theft, but vice versa may not be true. However, in view of the categorical deposition of complainant/PW1 as discussed above and in view of aforesaid discrepancies, it can be safely inferred that theft of his Hyundai I10 car, amount of Rs. 52,000/ and mobile phone of Samsung, was committed on the aforesaid date, time and place by three unknown assailants.
29. As regards the identify of the three accused persons, who had committed the theft, no description like age, complexion, features or any specific mark of any of the accused persons, was mentioned by the complainant in any of his statements to the police. As regards the identity of the three accused persons as perpetrators of the crime, the incident in question is dated 12.1.2009, the FIR was registered on 14.1.2009 and the aforesaid Page No. 40. Contd... ... ...
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Hyundai I10 car was recovered on 17.1.2009 and the accused Darvesh was arrested in another case bearing FIR No. 26/09 of PS Dabri on 19.1.2009 with country made pistol containing one live cartridge on secret information and on his disclosure statement, the other three accused persons were arrested on 20.1.2009 u/s 41.1 CrPC by AATS, South West District, and they also made their disclosure statements regarding involvement in this case and were arrested in this case. Although, the complainant/PW1 had identified the accused Darvesh in his judicial TIP and had also identified him during his testimony in the Court, but since in the judicial TIP of the said accused, which was conducted immediately after arrest of the said accused after few days of the incident and identity of the assailant may have been fresh in his mind, the complainant had stated that he was not completely sure about the identification of said accused, therefore, in my considered opinion the benefit of doubt regarding identity must be given to the said accused Darvesh.
30. However, the accused Manoj was identified by the complainant in the judicial TIP of the said accused as well Page No. 41. Contd... ... ...
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as in the Court and hence, the identity of the accused Manoj, as one of the assailants, who had committed the aforesaid theft, stands established.
31. As regards the accused Manish, he (accused Manish) had refused judicial TIP and adverse presumption was drawn against him, but since he was not identified by the complainant during his testimony as perpetrator of the crime, therefore, benefit of doubt must be given to the said accused Manish regarding his identity.
32. The fourth accused Sanjeev, the driver of the complainant was roped in view of Section 120B IPC on the ground that he was part of conspiracy to commit the said offence. However, no call details records of the accused Sanjeev with the other accused persons immediately prior to the incident or after the incident, has been brought or proved on record by the prosecution. It is well settled that a conspiracy is always hatched in secrecy and seldom there is direct evidence for the same, but the prosecution had to bring some admissible material on record from which it could be inferred that there was any conspiracy. The disclosure statements given by the accused Sanjeev is not Page No. 42. Contd... ... ...
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admissible in evidence, being statement given to the police. Since the slightest evidence from which it could be inferred that accused Sanjeev was also part of the conspiracy, has not been produced on record by the prosecution therefore, the benefit of doubt must be given to the said accused. Further, the testimony of PW12 and PW13 that they had seen this accused in the company of coaccused Manish Saini (whose identity as one of the robber has not been established), prior to incident, is not at all sufficient to incriminate this accused in any way regarding commission of crime.
33. Although, the prosecution has sought to connect that part of disclosure statement of accused Manish Saini given in police custody with the recovery of photocopy of registration certificate of aforesaid Hyundai I10 car of the complainant as per Section 27 of Indian Evidence Act and that part of the disclosure statement of accused Manoj given in police custody, pursuant to which recovery of 13 blank cheque leaves of the complainant's bank account were effected, still in my considered opinion the said recovery appears to be doubtful as admittedly they were not valuable goods/articles or could not have been Page No. 43. Contd... ... ...
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converted into valuable securities and it appears highly unlikely that any accused after committing the offence in question, would have kept the same in his possession after the incident as the same were not of any one of them and car in question was already recovered. Although, the prosecution witnesses have deposed that amount of Rs. 8,000/ in the currency notes of Rs. 500/ denomination, was recovered from the house of accused Manish and Rs. 10,000/ in the currency notes of Rs. 500/ denomination, was recovered from the house of accused Manoj, and same were part of the theft amount, but since the complainant had admitted that he cannot tell the serial numbers of said currency notes which were stolen from him and had not put any mark on the same and also in the absence of the same, it cannot be inferred with certainty that the currency notes recovered from the aforesaid accused persons are indeed the ones, which were stolen from the possession of the complainant at the time of incident or the same belonged to the accused persons or their family members.
34. Since neither the country made pistol allegedly recovered in another case FIR from the possession of accused Page No. 44. Contd... ... ...
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Darvesh after few days of incident, was produced in the testimony of complainant for identification nor the identity of the accused Darvesh Kumar @ Devraj has been established, therefore, no offence u/s 397/34 IPC is proved against him.
35. In view of the aforesaid discussions and in the totality of facts and circumstances, I am of the considered opinion that the prosecution has been able to prove its case u/s 379/34 IPC against the accused Manoj beyond reasonable doubt that he had committed the offence of theft of Hyundai I10 car, aforesaid cash amount and one mobile phone of Samsung, in furtherance of his common intention with his two other unidentified associates, as there is no reason as to why the complainant would identify him in TIP and incriminate him in his testimony specially when no animosity has even been alleged. Further, the recovery of case property is not necessary for proving the offence of theft u/s 379 IPC specially when said accused has been identified. However, since the identity of the two other associates as Darvesh and Manish being doubtful as discussed above and no offence of conspiracy being proved against the accused Sanjeev Page No. 45. Contd... ... ...
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(driver), all three are given benefit of doubt and are acquitted for the offences u/s 392/34 IPC. Accordingly, accused Manoj Kumar is held guilty for the offence us 379/34 IPC and remaining three accused Darvesh Kumar @ Devraj, Manish Saini and Sanjeev Kumar @ Sanju are acquitted.
Announced in the open Court on 15.4.2014.
(ASHUTOSH KUMAR) ADDITIONAL SESSIONS JUDGE3 :
DWARKA COURTS : DELHI Page No. 46. Contd... ... ...