Delhi District Court
State vs . Subramanyam Yadav Etc Sc No. 30/14 Page ... on 5 May, 2014
(1)
IN THE COURT OF SH. GIRISH KATHPALIA, ASJ05,
SOUTH EAST DISTRICT, SAKET, NEW DELHI
SC NO. 30/14
STATE
vs
1. Subramanyam Yadav @ Rahul Madrasi,
S/o Sh. S. Narsingha Rao,
R/o Gali No. 8, Ajanta Park, Khoda Colony,
Ghaziabad, UP. (proclaimed offender)
2. Ramesh Kumar S/o Sh. Netrapal,
Gali No. 5, Prakash Nagar,
Khoda Colony, Ghaziabad, UP &
3. Daya Nand S/o Shri Khem Chand,
R/o village Rajokri Pahadi,
New Delhi
FIR No. 473/06
PS Hazrat Nizamuddin
Offence under Section 392/397/411/34 IPC
Unique ID : 2403RO493582006
Date of Committal : 15.01.2007
First Date in this Court : 22.01.2014
Date of conclusion of arguments: 30.04.2014
Date of decision : 05.05.2014
JUDGMENT
1. The case brought by the prosecution is as follows.
2. On 03.07.2006 at about 11:30 am, DD No. 7A was recorded at State vs. Subramanyam Yadav etc SC No. 30/14 Page 1 of 46 Pages (2) PS Hazrat Nizamuddin to the effect that as informed by the operator, 1012 men took away money and jewelery from premises no. C33A, Ground Floor, Hazrat Nizamuddin East at gun point. A copy of DD No.7A was delivered to SI Harbir Singh through Ct. Sunil. Upon receipt of copy of DD No. 7A, SI Harbir Singh accompanied with Ct. Dilip reached the spot, house no. C33A, Hazrat Nizamuddin East, New Delhi, where they met Smt. Preeti Paliwal, a resident of that house who gave her statement.
3. In her said statement, Smt. Preeti stated that she had been residing in the said house with her family and her husband is engaged in the business of wall paintings under the name of Decor India in Greater Kailash I; that during the previous Diwali season, they got doors of their house polished from the labour of contractor Rangi Lal and one of the labours was a South Indian who worked in their house for many days, so she could identify him well and his name was Rahul; that at about 10:30 am after her husband had left for his office, the door bell rang and her maid Urjila on seeing Rahul Madrasi opened the door; that Rahul was accompanied with many persons; that Rahul Madrasi suddenly took out a State vs. Subramanyam Yadav etc SC No. 30/14 Page 2 of 46 Pages (3) country made pistol and placed the same on the head of her child, threatening to kill and, thereafter, from her bedroom almirah took out cash Rs.50,000/ alongwith her gold and diamond jewelery and ran away; that she could identify the accomplices of Rahul Madrasi if shown; that the details of jewelery would be furnished by her after checking the house properly; that though none of the occupants of her house suffered any injury but Rahul Madrasi and his companions looted her house.
4. On the above said statement of Smt. Preeti, SI Harbir Singh prepared a rukka and after getting the FIR registered, investigated the case. In the course of investigation, SI Harbir Singh (IO) prepared the site plan after inspecting the spot and recorded statements of witnesses. IO also called the crime team to the spot and got the spot inspected.
5. Thereafter, in the course of investigation on 05.07.06, the IO received a copy of DD No. 4A of PS Hazrat Nizamuddin to the effect that as per information conveyed by SI Rajesh of New Ashok Nagar over telephone, accused Ombir and Ramesh of FIR No. 286/06 of PS New Ashok Nagar, arrested on 04.07.06 had given disclosure statement State vs. Subramanyam Yadav etc SC No. 30/14 Page 3 of 46 Pages (4) pertaining to the present case and they would be produced in Karkardooma. The IO upon receipt of DD No. 4A contacted SI Rajesh and proceeded with further investigation.
6. On 06.07.06 on the basis of a secret information, the IO arrested accused Govind Singh Bhandari from Mayur Vihar bus stand and recovered from him some jewelery articles, looted in the present case.
7. Thereafter, on 10.07.06 on secret information, the IO arrested accused Subramanyam Yadav @ Rahul Madrasi from the booking hall of New Delhi Railway Station and recorded his disclosure statement on the basis whereof few jewelery articles, looted in the present case were recovered. In his disclosure statement, Rahul Madrasi informed that some of the looted articles had been illegally taken away from them by a police official who could be got arrested by him. After further investigation from police control room on the basis of the disclosure statement of Rahul Madrasi, the IO arrested accused Ct. Dayanand on the pointing out of Rahul Madrasi. Thereafter, on the basis of disclosure statement of accused Ct. Dayanand, some jewelery articles allegedly State vs. Subramanyam Yadav etc SC No. 30/14 Page 4 of 46 Pages (5) looted in the present case were recovered.
8. Thereafter, on 18.07.06 accused Ombir and Ramesh Kumar were arrested by the IO and cash and jewelery was recovered from them. During investigation, IO applied for test identification parade of Ombir, Ramesh Kumar and Govind Singh Bhandari but all of them refused to join TIP.
9. After completion of investigation, police filed charge sheet against accused Subramanyam Yadav @ Rahul Madrasi, accused Ramesh Kumar and accused Dayanand for offence under Section 392/397/411/34 IPC. The remaining two accused persons namely Ombir and Govind Singh Bhandari were found to be minor in age, so their case was separately sent to the children court.
10. Upon committal of the case, my predecessor court framed charge against all the three said accused persons for offence under Section 392/34 IPC and Section 397/34 IPC and also framed charge against accused Subramanyam Yadav @ Rahul Madrasi and accused Dayanand for offence under Section 411 IPC. All the accused persons pleaded not State vs. Subramanyam Yadav etc SC No. 30/14 Page 5 of 46 Pages (6) guilty and claimed trial.
11. In the beginning itself of the trial, accused Subramanyam Yadav @ Rahul Madrasi became absent and after necessary proceedings was declared proclaimed offender by my learned predecessor on 28.05.08.
12. In support of its case, prosecution examined 20 witnesses, whereafter the entire prosecution evidence was put to the two accused persons namely Dayanand and Ramesh Kumar in their statements under Section 313 Cr.P.C. Both the accused denied the truthfulness and correctness of prosecution case and pleaded that they are innocent but opted not to lead any evidence in defence. I have heard Sh. R.K. Gurjar, Additional Public Prosecutor for State and Sh. K.S. Khatri, counsel for accused, who also submitted the written arguments.
13. A brief conspectus of the evidence brought on record is as follows.
14. PW1 Ms. Veena Rani, Metropolitan Magistrate proved the TIP proceedings of the accused persons as Ex.PW1/AG, stating that the accused persons refused to join TIP.
State vs. Subramanyam Yadav etc SC No. 30/14 Page 6 of 46 Pages (7)
15. PW2 Sh. Lalit Kumar, Metropolitan Magistrate proved the TIP proceedings of the articles allegedly recovered in this case as Ex.PW2/A & B.
16. PW3 Ct. Dilip deposed having accompanied the IO upon receipt of DD No. 7A on 03.07.06 followed by recording of the statement of Smt. Preeti and about his having got the FIR registered from police station.
17.1 PW4 Smt. Preeti Paliwal deposed that her husband is a painter, running business in the name of Decor India from Greater KailashI; that in 2005 Diwali, some polish work was done at her residence through contractor Rangi Lal who had employed two labourers namely Subramanyam @ Madrasi and another one, whose name she did not know; that after finishing the polish work, the said labourers left her premises; that accused Subramanyam @ Rahul visited her house many days for polish work; that on 03.07.06 her husband left for his office at about 10:00 am and she was alone at home with her kids and maid; that at about 10:30 am, upon the door bell being rung, her maid opened the State vs. Subramanyam Yadav etc SC No. 30/14 Page 7 of 46 Pages (8) door and found four persons present there; that all those four persons entered her house and one of them was Rahul Madrasi; that Rahul Madrasi was carrying a country made pistol; that the two other accused persons took her child and the maid in the room and accused Rahul Madrasi put pistol on the head of both her kids threatening to kill them if she made any noise; that accused Rahul and Ramesh took her inside her room and asked her to open the almirahs and hand over the cash and other articles; that she opened the almirah and after taking out Rs. 70,000/ and all her jewelery she handed over the same to accused Rahul @ Subramanyam and Ramesh; that the accused persons also demanded a bag from her to keep the jewelery and cash and also directed her to place some more money at a particular place near Ashram Chowk which would be collected by them in the evening, failing which they would kill her kids; that thereafter the accused persons disconnected the door bell wire and went away; that she immediately called up her husband and father who reached the spot within 15 minutes and informed the police; that police came and recorded her statement Ex.PW4/A and prepared the site plan; State vs. Subramanyam Yadav etc SC No. 30/14 Page 8 of 46 Pages (9) that subsequently she gave to the police complete detailed list Ex.PX of her jewelery articles; that on 31.07.06 she identified the recovered jewelery articles in Tihar Jail and subsequently got the same released on superdari vide Ex.PW4/B. PW4 produced her jewelery articles which were allegedly looted and recovered and released to her on superdari as Ex.P1 to Ex.P27 and as regards the cash, PW4 stated that she had already spent the same, so could not be produced.
17.2 In her cross examination, PW4 admitted that the jewelery articles in question did not have any specific description or mark of identification and similar articles are easily available in the market; that she could not produce the invoices of the said articles; that she could not tell the number of similar articles which were mixed up with the recovered articles at the time of TIP; that about recovery of the looted articles she was informed by the police about 56 days after the incident; that she did not know if her husband, who had gone to the police station had been shown the recovered articles; that prior to the incident she knew only accused Subramanyam but was confident that accused Ramesh had State vs. Subramanyam Yadav etc SC No. 30/14 Page 9 of 46 Pages (10) accompanied Subramanyam since after the incident police had shown Ramesh to her twice in the court, in order to identify him and she had been shown the accused Ramesh before being produced in the court; that after about 45 days of the incident, she got telephone call from police station informing about the recovery of her jewelery, whereafter her husband and father went to the police station and they were shown the recovered jewelery; that after returning from police station, her husband told that some of the looted jewelery articles had been recovered and shown to him in the police station; that though there was no special identification mark on her jewelery items, she was certain that the jewelery allegedly recovered belonged to her and she identified the same because of her belief; that at the time of identification of the jewelery articles, no similar articles were put before her alongwith the allegedly recovered articles; that one golden necklace type article was shown to her but the same was smaller and lighter than her necklace; that the articles obtained by her on superdari were not tested to ascertain if the same were of gold or silver or diamond or any other stone; that the accused Ramesh State vs. Subramanyam Yadav etc SC No. 30/14 Page 10 of 46 Pages (11) was shown to her without muffled face at Patiala House Court when she was called upon to identify him in the court; that she never saw accused Ramesh with Subramanyam on any other day except on the day of incident; that the accused Ramesh did not enter her house with Subramanyam and did not rob the jewelery.
18. PW5 Sh. Alok Paliwal deposed that upon receiving the telephonic information of the incident at about 11:00 am on 03.07.06, he immediately rushed to his home and informed the police, who came and recorded their statement and prepared site plan; that about 23 days after the incident, some of the jewelery articles and cash were recovered by the police which he got released on superdari. PW5 identified the photocopies of currency notes, allegedly involved in the present case as Ex.PW5/B (Colly). Before my learned predecessor, in his statement PW5 described the supardarinama as Ex.PW5/A but it was recorded by my predecessor that the said superdarinama was not traceable on record. In his cross examination, PW5 stated that the currency notes robbed from his house were in a wad tied with the rubber band and the same were State vs. Subramanyam Yadav etc SC No. 30/14 Page 11 of 46 Pages (12) total 100 notes of Rs.500 denomination each. PW5 admitted that there is no specific mark of identification by which he could say its certainty that the currency notes belonged to him.
19. PW6 Ms. Urshila, the maid of the complainant deposed that on 03.07.06 after Sh. Ashok Paliwal went to his office and she was in the house of the complainant with the complainant and her two kids, door bell rang and when she opened the door, she found four boys who entered the house; that one of those boys put pistol on the kids and two boys took her and the kids to another room, leaving behind the complainant Smt. Preeti with the remaining two boys; that one of those four boys was Subramanyam Madrasi who had worked as polish man at their house prior to the incident. PW6 identified the accused Ramesh in the court as one of the robbers. In her cross examination, PW6 stated that she personally did not see the accused robbing the complainant and taking away the cash and jewelery; that it is Rahul Madrasi who was in possession of the pistol; that she was not aware as to where the jewelery and cash had been kept in their house prior to the robbery; that the State vs. Subramanyam Yadav etc SC No. 30/14 Page 12 of 46 Pages (13) accused persons present in the court were not those two boys who had taken her to the other room; that prior to the incident she had never seen the other three boys who accompanied Rahul Madrasi; that she was not certain if the accused Ramesh had entered their house on the day of incident and was involved in the alleged robbery; that she had never seen the accused Ramesh prior to the day of her testimony in the court; that the persons who had earlier worked as polish men had not accompanied Rahul Madrasi on the day of incident; that she cannot recognize a face if shown after gap of time if the said face does not belong to Darjeeling from where she belonged and had different features; that if any person other than Madrasi came before her, she would not be able to identify him as the person seen by her before or during the incident; that it is possible that she had never seen the accused Ramesh and Dayanand prior to the day of her testimony; that after the incident she had never seen those four accused persons till date of her testimony.
20. PW7 ASI Sushila proved a copy of the FIR as Ex.PW7/A and her endorsement on the rukka as Ex.PW7/B and copy of DD no. 7A as State vs. Subramanyam Yadav etc SC No. 30/14 Page 13 of 46 Pages (14) Ex.PW7/C.
21. PW8 HC Parmanand proved the copy of relevant entry of Malkhana record register no.19 as Ex.PW8/A.
22. PW9, HC Charan Das deposed that on 04.07.06 while posted as head constable at PS Ashok Nagar, he was in the staff of SI Rajesh Dangwal involved in checking the vehicles in front of St. Mary School at about 10:00 am and at that time SI Rajesh received secret information that two persons involved in robbery in the area of Nizamuddin would come on Bajaj Platinum red motorcycle from the side of Khoda to go towards Kondli and would be in possession of illegal arms; that the IO SI Rajesh shared the secret information with the SHO and members of the raiding team; that the IO contacted 45 public persons to join as witness but none agreed; that at about 10:50 am, one red Bajaj Platinum motorcycle without a number plate with two persons on it came at a fast speed and on seeing the police team the motorcycle rider tried to accelerate by taking Uturn but was chased and apprehended on the pointing out of secret informer; that on interrogation, driver of the State vs. Subramanyam Yadav etc SC No. 30/14 Page 14 of 46 Pages (15) motorcycle disclosed his name as Ombir and the pillion disclosed his name as Ramesh; that from personal search of accused Ombir, carried out by Ct. Dev Vrat, one country made pistol and a live cartridge were recovered; that IO recorded statements Ex.PW9/A and Ex.PW9/B respectively of accused Ombir and Ramesh; that accused Ombir and Ramesh took out one pearl necklace each and handed over the same to the IO which were seized by the IO after placing the same in plastic containers sealed with the seal of RD vide seizure memos Ex.PW9/C and Ex.PW9/D; that the IO seized the motorcycle of the accused persons vide memo Ex.PW9/E and arrested the accused persons; that in pursuance of the disclosure statement of accused Ombir and Ramesh, the police team went to the house of accused Ramesh from where a sum of Rs.20,000/ and jewelery were recovered which were kept in polythene and containers by the IO sealed with the seal of RD and seized vide memo Ex.PW9/F. PW9 also narrated the manner of recovery conducted from the house of accused Ombir and identified the case property as Ex.P1 to Ex.P27. In his cross examination, PW9 stated that to the house of accused Ramesh, State vs. Subramanyam Yadav etc SC No. 30/14 Page 15 of 46 Pages (16) they went on foot and it took about 1015 minutes to reach there; that the house of Ramesh consists of single storey with 23 rooms of medium size and the recovery was effected from a room which was in front of the gate; that at the time of recovery mother of accused Ramesh and some children also were present in the house, which was surrounded by public; that the currency notes recovered from accused Ramesh were 20 notes of Rs.500 denomination and 10 notes of Rs.100 denomination; that the containers in which the recovered articles were packaged had been brought from a nearby scrap dealer shop and the containers were transparent but he did not know as to who had brought the same from the scrap dealer.
23. PW10 Ct. Pramod Kumar deposed about the manner of arrest of accused Subramanyam Yadav @ Rahul Madrasi, who as mentioned above is now a proclaimed offender. Further, PW 10 deposed that after arrest of accused Subramanyam on 10.7.2006, the police party alongwith the accused went to police post Sarai Kale Khan, from where the IO collected the information as regards the policemen who were on duty on the day shift of 03.7.2006; that accused constable Dayanand also State vs. Subramanyam Yadav etc SC No. 30/14 Page 16 of 46 Pages (17) reached the police post and accused Rahul Madrasi immediately identified Dayanand; that the IO interrogated the accused Dayanand and recorded his disclosure statement Ex.PW 10/F and arrested Dayanand vide memo Ex.PW 10/G and took his personal search vide memo Ex. PW 10/H; that thereafter, the police party alongwith accused Rahul and Dayanand reached at the place where the accused Dayanand had taken search of Rahul and taken away the jewelery from the latter and the IO prepared the pointing out memo; that thereafter some officials of the police party took the accused Dayanand to his house for recovery of the jewelery.
24. PW 11 HC Surya Prakash deposed about the formal arrest of accused Omvir and Ramesh from the court of learned Magistrate vide arrest memos Ex. PW 11/A and Ex. PW 11/B.
25. PW 12 Ct. Kanwarpal Singh narrated the above mentioned facts as regards constitution of a raiding party upon receipt of secret information followed by the arrest of accused Omvir and Ramesh and the articles recovered from their personal search followed by articles State vs. Subramanyam Yadav etc SC No. 30/14 Page 17 of 46 Pages (18) recovered at their instance in pursuance to their disclosure statements. In his cross examination, PW 12 stated that he had no idea as regards the direction of opening of the house of accused Ramesh; that he could not tell as to what jewelery was recovered from the house of accused Ramesh; that he could not tell the denomination of the currency notes alleged recovered from the residence of accused Ramesh; that the jewelery recovered from the house of accused Ramesh was certainly not of silver or pearl but he could not tell the number of jewelery articles recovered; that at the time of seizure, the jewelery articles and currency notes were lying in a corner of the house packed in a cloth parcel; that the recovered articles were packaged by the IO in plastic boxes which were already with him in the IO bag.
26. PW 13 ASI Anoop Kumar Singh, finger print expert proved his report as Ex.PW 13/A.
27. PW 14 ASI Virender Singh deposed that on 03.7.2006 he was posted as ASI in PCR unit as incharge of Eagle 7 PCR Van from 8:00am to 8:00pm and gunman HC Parshu Ram and Ct. Dayanand also were with State vs. Subramanyam Yadav etc SC No. 30/14 Page 18 of 46 Pages (19) him on duty, that at about 11:30am on that day, accused Dayanand went away to attend a call of the nature and returned after some time; that on 10.7.2006 he was informed by the IO about involvement and arrest of accused Dayanand in the present case. PW 14 could not produce the call book and duty register as the same had been destroyed by orders Ex.PW 14/A and Ex.PW 14/B.
28. PW 15 HC Satya Parkash proved a copy of FIR against accused Omvir and Ramesh as Ex. PW 15/A and his endorsement on rukka as Ex. PW 15/B.
29. PW 16 HC Satender Singh narrated the above mentioned facts as regards constitution of a raiding party upon receipt of secret information followed by the arrest of the accused Omvir and Ramesh and the articles recovered from their personal search followed by articles recovered at their instance in pursuance to their disclosure statements. In his cross examination, PW 16 stated that both the accused persons namely Omvir and Ramesh were on black motorcycle when they were apprehended and at that time the secret informer was not with them; that State vs. Subramanyam Yadav etc SC No. 30/14 Page 19 of 46 Pages (20) the articles recovered from the house of accused Ramesh were kept in an iron box in a corner.
30. PW 17 HC Jai Parkash proved the information recorded by him in PCR form as Ex.PW 17/A and stated that the original record of PCR has been weeded out vide orders Ex.PW 17/B1 and Ex.PW 17/B2.
31. PW 18 Ct. Dev Vrat Singh narrated the above mentioned facts as regards constitution of a raiding party upon receipt of secret information followed by the arrest of accused Omvir and Ramesh and the articles recovered from their personal search followed by articles recovered at their instance in pursuance to their disclosure statements. In his cross examination, PW 18 stated that after arrest they went to the house of the accused on motorcycle and another vehicle called from the police station; that the articles recovered from the house of accused Ramesh were gold like and silver like which were kept in a box handed over by accused Ramesh to the IO; that all the jewelery articles so recovered were placed in a white cloth pullanda and the same were sealed with the seal of RD.
State vs. Subramanyam Yadav etc SC No. 30/14 Page 20 of 46 Pages (21) 31.1 PW 19 SI Harbir Singh deposed that on 03.07.06 while posted as sub inspector at PS Hazrat Nizamuddin, on receipt of DD no. 7A, he reached the spot and recorded statement of the complainant Smt. Preeti Paliwal and sent the same for registration of FIR after preparing rukka Ex.PW19/A and he also prepared site plan Ex.PW19/B and got the spot inspected by crime team; that on 05.07.06 he received information that some of the accused persons wanted in the present case had been arrested by the police of PS Ashok Nagar in case FIR No. 286 for offence under Section 411 IPC; that on 06.07.06 he arrested accused Govind Singh from the bus stand near Mayur Vihar and subsequently it was revealed that Govind Singh was a juvenile; that on 10.07.06 he alongwith Ct. Vinay and Ct. Pramod, upon information, reached New Delhi Railway Station and at the instance of secret informer arrested the accused Subramanyam Yadav @ Rahul, from whose bag two gold necklace, one anklet and one ear gold chain were recovered, which he seized vide seizure memo Ex.PW19/D after converting the same into a sealed pulanda; that he arrested the accused Subramanyam Yadav who disclosed that when the State vs. Subramanyam Yadav etc SC No. 30/14 Page 21 of 46 Pages (22) accused persons were going with the robbed articles, PCR personnel met them on the way and took away from them all the robbed articles; that thereafter, he inquired from the PCR zonal office regarding the duty of the police personnel on 03.07.06 at the PCR Van and was informed that the concerned police official would again be posted on 10.07.06 at night; that when at the time of change of duty, Ct. Dayanand reached the police post Sarai Kale Khan, the accused Subramanyam Yadav identified Dayanand as the PCR personnel who had taken away the robbed articles, so Dayanand was interrogated and taken to the place where the robbed articles had been kept; that the accused Dayanand was arrested and in pursuance of the disclosure statement got recovered from his house one pair of loops, one pendant and one ring which were seized by him; that on 13.07.06 he formally arrested the accused Ramesh and Ombir who had been produced in the court; that on 31.07.06 TIP of the accused persons was conducted, in which they refused to join; that on 01.08.06 TIP of case property was conducted in which the complainant identified the case property and the same was released to her on superdari. State vs. Subramanyam Yadav etc SC No. 30/14 Page 22 of 46 Pages (23) 31.2 In his cross examination, PW19 admitted that accused Subramanyam had not given the description of the jewelery which he had shared with the coaccused; that he arrested the accused Dayanand at about 09:00 pm from police post Sarai Kale Khan where other police officials also were present but he did not record their statements and did not even remember their names; that accused Dayanand also did not give any description of the articles received by him from accused Subramanyam; that he took accused Dayanand to the residence of the latter in a TSR but did not join the TSR driver as a witness to recovery and did not remember having paid even the fare; that he had asked 34 witnesses from neighborhood of Dayanand but they refused to join investigation and did not disclose their names and addresses; that there were family members of accused Dayanand in that house but he did not remember their names or relationship with the accused; that in the first complaint, the complainant had not given any specific description or weight of the allegedly robbed articles and had not mentioned even the articles allegedly recovered from the house of accused Dayanand; that the State vs. Subramanyam Yadav etc SC No. 30/14 Page 23 of 46 Pages (24) complainant had not even disclosed as to from where the allegedly robbed articles had been purchased nor produced any receipt; that he had collected similar articles from jewelers for mixing up with the case property at the time of TIP but did not remember the names or addresses of the jewelers or the particulars of the articles used for mixing up during TIP; that he also did not remember as to how many articles were collected by him for the purposes of mixing up with the case property during TIP; that the list of the allegedly robbed articles was provided to him by the complainant on 04.07.06 but the said list did not mention the six jewelery articles shown at serials no.16 in the seizure memo of the articles allegedly recovered from accused Ramesh; that the list of the allegedly robbed articles did not mention the amount or denominations of the currency notes; that he never asked the complainant to submit any photograph showing the allegedly looted articles; that during the investigation, although he came to know that the articles allegedly recovered from accused Ramesh did not match with the list of the looted articles, and he brought this to the notice of the complainant, but she State vs. Subramanyam Yadav etc SC No. 30/14 Page 24 of 46 Pages (25) stated that she did not remember the exact items as so many articles of jewelery were looted, so he insisted on the complainant to provide the list of remaining robbed articles but she did not do so; that even before TIP he had disclosed to the complainant that the articles recovered from accused Ramesh did not match with the list of robbed articles but the complainant stated that she would identify her articles as and when shown and she did not remember about every article; that prior to the TIP, the complainant had never disclosed to him in writing or otherwise the articles which were her own.
32. PW20 SI Rajesh Dangwal narrated the above mentioned facts as regards constitution of a raiding party upon receipt of secret information followed by the arrest of the accused Omvir and Ramesh and the articles recovered from their personal search followed by articles recovered at their instance in pursuance to their disclosure statements. In his cross examination PW20 stated that he did not share the secret information with his superior officer; that he did not verify the ownership of the motorcycle nabbed by him; that he did not join any public person at State vs. Subramanyam Yadav etc SC No. 30/14 Page 25 of 46 Pages (26) the time of arrest of the accused; that to the house of accused Ramesh they went on foot and also carried alongwith them the motorcycle of the accused; that house of accused Ramesh consisted of 23 rooms; that some of the containers in which the case property was packaged were got arranged by him through HC Charan Das, though he did not pay for the same; that he did not match the articles recovered from the house of accused Ramesh with the list of articles provided by complainant and he seized the articles merely because the accused provided the same.
33. The entire above described evidence was put to both the accused persons in their statements under Section 313 Cr.P.C. Both the accused persons denied the correctness and truthfulness of the prosecution evidence and pleaded innocence but opted not to lead any evidence in their defence.
34. During final arguments, learned Additional Public Prosecutor argued that prosecution has successfully proved its case beyond reasonable doubt. It was argued by learned prosecutor that the accused Ramesh was duly identified during trial by the complainant, State vs. Subramanyam Yadav etc SC No. 30/14 Page 26 of 46 Pages (27) though he had refused to join TIP; even the stolen articles were recovered from the possession of accused Ramesh, which articles were identified by the complainant during TIP. It was further argued that as regards accused Dayanand, there is a clear evidence of the recovery of stolen articles from his possession, which articles were identified by the complainant during TIP. Hence, as per prosecution, both the accused are liable to be convicted.
35. Per contra, learned defence counsel filed written arguments and also submitted orally contending that prosecution has miserably failed to prove its case beyond reasonable doubt. It was argued that since no public witness was joined at the time of the alleged recovery of articles from the accused persons, the recovery becomes doubtful. It was also contended that even as per the investigating officer PW19, accused Subramanyam had told that all the allegedly robbed articles had been taken away by the PCR officials, so there was no scope for any recovery from any of the accused persons. Learned defence counsel also submitted that there are large number of major contradictions in the testimony of State vs. Subramanyam Yadav etc SC No. 30/14 Page 27 of 46 Pages (28) witnesses related to the recovery and arrest of the accused persons.
36. As mentioned above, the present trial pertains only against two accused persons namely Ramesh and Dayanand. Therefore, the discussion as regards the remaining accused persons is not being gone into details.
37. As also described above, the accused Dayanand was admittedly not involved in the incident of the alleged robbery, so there was never any occasion for the complainant to see Dayanand; whereas accused Ramesh, as per prosecution was involved in the alleged robbery but was not previously known to the complainant and was not arrested from the spot. Therefore, the entire prosecution case hinges upon the factum of identification of accused Ramesh; the factum of recovery of the allegedly looted articles; and identification of the allegedly looted articles by the complainant to be her articles.
38. At this stage, it would be apposite to traverse through the legal position, relevant to the present case.
39. In the case of Sahib Singh vs State of Punjab, reported as State vs. Subramanyam Yadav etc SC No. 30/14 Page 28 of 46 Pages (29) 1997 (1) CC Cases 13 SC, the Hon'ble Supreme Court held that where IO made no attempt to join public witnesses before conducting the search, the consequent recovery loses its credence. In the case of Sadhu Singh vs State of Punjab, reported as 1997 (2) CC Cases 8, the Hon'ble High Court held that stereotyped statement of nonavailability of public witnesses is not enough when at the relevant time it was not difficult to arrange for independent public witnesses to join recovery or arrest.
40. In the case of Balbir Singh vs State of Punjab, reported as 1997 (1) CC Cases 136 SC, the Hon'ble Supreme Court held that where there were no specific marks on the recovered articles, the recovery becomes a weak piece of evidence.
41. In the case of State vs Maqsood Ahmed reported as 163(2009) DLT 39 DB, a Division Bench of the Hon'ble Delhi High Court held that although refusal to participate in TIP without sufficient reason goes adverse to the accused, but conviction cannot be done on the sole ground of refusal to join TIP.
42. In the case of Leela Ram vs State, 1990 (2) CC cases 402, State vs. Subramanyam Yadav etc SC No. 30/14 Page 29 of 46 Pages (30) the Hon'ble Delhi High Court held as under:
"27. Evidence of identification is to be regarded as inherently weak, least to be relied upon and in itself an unsafe basis for conviction. Even a mere possibility that the accused was or could have been shown would be sufficient justification for refusal to participate in identification proceedings and to reject identification evidence."
43. In the case of Parmod Kumar vs The State 1990 CrLJ 68 the Hon'ble Delhi High Court held:
"The witnesses who are examined by the prosecution should have been asked as far as possible to give broad description of the accused while recording their statement under Section 161 CrPC........In our view therefore, the appellant was justified in refusing to join the test identification parade as he has clearly established the possibility of his being shown to the eye witnesses during the course of the alleged recovery of the alleged weapon of offence. "
44. In the case of Tain Singh vs State, 1987 CrLJ 53, the Hon'ble Delhi High Court held:
"4. It is settled law that the accused is not to prove conclusively that he was shown to the prosecution witnesses before he declined to participate in the identification parade. State vs. Subramanyam Yadav etc SC No. 30/14 Page 30 of 46 Pages (31) It is enough if he brings on record cogent circumstances to show that he was or could have been shown to prosecution witnesses while he was in police custody or when he was produced in court for remand."
45. In the case of Kanan & Ors. vs. State of Kerala, reported as 1979 Crl. LJ 919, the Hon'ble Supreme Court held that where a witness identifies an accused who is not known to him, in the court for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his powers of observation. If no TIP is held, then it will be wholly unsafe to rely on the bare testimony of the witness as regards the identification of the accused for the first time in court.
46. In the case of Budh Sen vs State of UP, reported as AIR 1970 SC 1321, the Hon'ble Supreme Court observed that it is considered safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses as to identity of the accused who are strangers to them, in the form of earlier identification proceedings and the person required to identify an accused should have had no opportunity of seeing State vs. Subramanyam Yadav etc SC No. 30/14 Page 31 of 46 Pages (32) him after the commission of the crime and before identification; observing that possibility of the witnesses having seen the accused whom they were supposed to identify subsequently, the test identification parade could not be considered to provide safe and trustworthy evidence to convict the accused.
47. Falling back to the present case, refusal of accused Ramesh to participate in the Test Identification Parade was pressed as an important incriminating circumstance by the prosecution. It certainly is so, provided there was no justification for such refusal. If the overall evidence on record read in its entirety, reflects that accused Ramesh was justified in refusing to participate in TIP, then such refusal cannot be taken to be an incriminating circumstance.
48. So far as the identity of the accused Ramesh as one of the robbers is concerned, as mentioned above, even as per prosecution case, accused Ramesh was not previously known to the complainant Smt. Preeti Paliwal nor did she even describe the physical features of any of the robbers in her statement. As regards identification of accused Ramesh, State vs. Subramanyam Yadav etc SC No. 30/14 Page 32 of 46 Pages (33) prosecution solely relies upon his refusal to participate in TIP proceedings. Therefore, it would be necessary to examine as to whether the refusal of accused Ramesh to participate in TIP proceedings was for any justified reason. Even as per prosecution case, as borne out from testimony of PW 9 HC Charan Dass, PW 12 Ct. Kanwar Pal Singh, PW 16 HC Satender Singh, PW 18 Ct. Dev Vrat and PW 20 SI Rajesh Gangwal, accused Ramesh was arrested on 04.7.2006 on the basis of secret information and on the same day the accused was taken for recovery of the allegedly looted articles. As per Ex. PW 1/F, the IO applied for TIP proceedings as belatedly as on 31.7.2006. In other words, accused Ramesh was taken out for recovery of the allegedly looted articles much prior to the TIP. As also was the situation in the case of Parmod Kumar (supra), possibility of the accused having been shown to the complainant cannot be ruled out and in such circumstances, the Hon'ble Delhi High Court held the refusal to join TIP as justified.
49. Further, as per TIP proceedings Ex. PW 1/E, accused Ramesh refused to join the proceedings clearly stating that he had been State vs. Subramanyam Yadav etc SC No. 30/14 Page 33 of 46 Pages (34) shown to the witnesses in the police station and his photograph also was taken in the police station prior to the day of TIP. This statement of accused Ramesh stands corroborated by the testimony of the complainant PW 4, who stated in her cross examination that she was confident about involvement of accused Ramesh since after the incident police had shown Ramesh to her twice in the court in order to identify him and that she had been shown the accused Ramesh even before being produced in court and that accused Ramesh was shown to her without muffled face at Patiala House Courts when she was called upon to identify him. Rather, PW 4 in her cross examination even stated that accused Ramesh did not even enter her house with accused Subramanayam and as such, identification of Ramesh by PW 4 in the course of her testimony for the first time is worthless. In fact the complainant, PW 4 went a step further in her cross examination and categorically stated that the accused Ramesh did not rob any article.
50. Even the maid PW 6 Ms. Urshila in her cross examination stated that she personally did not see accused Ramesh robbing the State vs. Subramanyam Yadav etc SC No. 30/14 Page 34 of 46 Pages (35) complainant. PW 6 further stated in her cross examination that accused Ramesh was not one of those robbers who had taken her to the other room and she was not even certain if accused Ramesh had entered their house. PW 6 further explained in her cross examination that since she belongs to Darjeeling, she cannot recognize faces with features different.
51. In view of the above mentioned testimony of PW 4 and PW 6, who were the only witnesses of the alleged robbery, it would not be safe to convict the accused Ramesh only on the basis of his refusal to join TIP.
52. The next incriminating evidence against accused Ramesh as per prosecution is the recovery of allegedly looted articles at his instance. Even on this count, the evidence adduced by the prosecution fails inspire confidence. As per prosecution, the allegedly looted articles were recovered from accused Ramesh in two installments - firstly at the time of his arrest and thereafter from his residence on the basis of his disclosure statement. As per prosecution, at the time of his arrest accused Ramesh took out one pearl necklace and handed over the same to the IO, who seized the same vide seizure memo Ex. PW 9/D. The seizure memo State vs. Subramanyam Yadav etc SC No. 30/14 Page 35 of 46 Pages (36) Ex.PW 9/D reflects that the said necklace was handed over by accused Ramesh to the IO after taking the same out of his neck. The said exercise was carried out by SI Rajesh Dangwal in FIR No. 286/06. One fails to understand why the accused would take out the necklace worn by him and hand it over to the IO, when the same was not even visible and SI Rajesh Dangwal was not even vaguely aware qua the allegedly robbed articles. More so, as would be further discussed, there was not even any identification mark on the said necklace. In the said exercise, the IO incorporated four witnesses, all of whom were police officials. No independent public person was joined in the alleged proceedings of arrest of accused Ramesh, which casts doubt on the alleged arrest and recovery proceedings.
53. As regards non joining of public persons at the time of arrest of accused Ramesh, the police witnesses in a stereotyped manner stated in cross examination that they had requested 45 public persons but none of them agreed to join as a witness; none of the police witnesses could disclose name or address of any of those public persons whom they had State vs. Subramanyam Yadav etc SC No. 30/14 Page 36 of 46 Pages (37) requested to join the proceedings. Such a farcical exercise throws doubts on the genuineness of the arrest and the recovery proceedings. The place where accused Ramesh was allegedly arrested was in front of a school and there is nothing on record to show that public persons with fixed place of residence or office or shop around that spot were not available.
54. Similarly, even as regards the alleged recovery of some jewelery and Rs. 20,000/ from the residence of accused Ramesh, no independent public witness was joined despite availability. As regards the said jewelery articles also, in the absence of specific marks of identification, in view of above cited legal position, the recovery becomes a weak piece of evidence.
55. Not only this, even as regards the manner of the arrest and the alleged recovery at the instance of accused Ramesh, there are number of contradictions in the testimony of the police officials who were the witnesses, for instance as per PW 12 constable Kanwar Pal Singh, the articles recovered from the residence of accused Ramesh were found kept in a cloth parcel in a corner of the house, whereas according to rest of the State vs. Subramanyam Yadav etc SC No. 30/14 Page 37 of 46 Pages (38) prosecution case, the same were found kept in an iron box kept in the room; similarly there are also contradictions as regards the mode by which the police party went to the residence of accused Ramesh and even as regards the number of rooms in the house of accused Ramesh. Even as regards the containers in which the allegedly looted articles were packaged to be sealed, there are contradictions in the statements of police witnesses in so far as one witness stated that the containers were in the IO kit while the other stated that the containers were bought from a scrap dealer shop; PW18 contrary to entire prosecution case stated that the allegedly recovered jewelery articles were packaged by the IO in a cloth pulanda. Contrary to the entire prosecution case that at the time of arrest accused Ombir and Ramesh came on red motorcycle and were identified by the secret informer, PW16 HC Satender Singh in his cross examination stated that the accused persons came on black motorcycle and at that time the secret informer had already left.
56. As regards the recovery of allegedly looted articles from the house of accused Ramesh, testimony of PW 20, the investigating officer State vs. Subramanyam Yadav etc SC No. 30/14 Page 38 of 46 Pages (39) SI Rajesh Dangwal is quite interesting. PW 20 in his cross examination stated that he did not match the articles recovered from the house of accused Ramesh with the list of looted articles supplied to him by the complainant and gullibly seized the same only because the accused provided the same to him. Such a statement, that too from the investigating officer puts the alleged recovery into serious doubt. Not only this, even the other investigating officer PW 19 SI Harbir Singh in his cross examination specifically stated that the list of the allegedly robbed articles supplied to him by the complainant did not mention any of the jewelery articles recovered from the house of accused Ramesh. In other words, even if it is believed that certain jewelery articles were recovered from the house of accused Ramesh, it is doubtful if the same were the looted articles.
57. As regards the articles allegedly recovered from both the accused persons, there is no reliable evidence that the same were the articles looted from the house of the complainant. The complainant Smt. Preeti Paliwal in her cross examination as PW 4 stated that the allegedly State vs. Subramanyam Yadav etc SC No. 30/14 Page 39 of 46 Pages (40) looted jewelery articles did not bear any specific description or mark of identification and such articles are easily available in the market; that she could not produce any document of her ownership or even possession over the allegedly looted jewelery articles.
58. As regards the identification of the allegedly looted articles by the complainant to be her articles, her testimony as PW 4 raises serious doubts even as regards genuineness of TIP proceedings. In her cross examination, PW 4 stated that at the time of identification of the jewelery articles, no similar articles were put before her alongwith the allegedly recovered articles; that after about 45 days of the incident she received a telephone call from police informing about recovery of her jewelery whereafter her husband and father went to the police station and were shown the recovered jewelery and after returning from the police station, her husband told that some of the looted jewelery had been recovered and had been shown to him in the police station. Most interestingly, PW 4 stated in her cross examination that there was no special mark of identification on her jewelery items but she was certain State vs. Subramanyam Yadav etc SC No. 30/14 Page 40 of 46 Pages (41) that the recovered jewelery belonged to her and she identified the same solely because of her belief.
59. Even as regards the money allegedly recovered and the money allegedly looted, the evidence brought by prosecution fails to inspire confidence. The list Ex. PX of the allegedly looted articles describes the money looted as cash Rs. 50,000/ plus Rs. 20,000/ without disclosing the numbers or denomination of the currency notes; in his testimony as PW 5, husband of the complainant described the looted money as a wad of 100 currency notes of rupees 500 denomination each; but as per PW 9, the money recovered from the house of accused Ramesh contained 20 currency notes of rupees 500 denomination and 10 currency notes of rupees 100 denomination. It remains unexplained as to from where the currency notes of rupees 100 denomination came out to be described as the looted money, since it is nobody's case that some amount of the looted money was spent or converted into smaller denominations by accused Ramesh.
60. As regards accused Dayanand, case of prosecution is that State vs. Subramanyam Yadav etc SC No. 30/14 Page 41 of 46 Pages (42) after arrest, accused Subramanyam Yadav @ Rahul Madrasi disclosed that when the accused persons were going with the robbed articles, PCR personnel met them on the way and took away some of the robbed articles; on the basis of the said disclosure statement, IO SI Harbir Singh carried out further investigation which led to the arrest of accused Dayanand who was identified at the time of arrest by accused Subramanyam Yadav; thereafter, at the instance of accused Dayanand, from his residence a pair of loops, a pendant and a ring were recovered.
61. Accused Dayanand was arrested, as per prosecution from police post Sarai Kale Khan at the time of change of duties of PCR personnel. If it was so, there must have been some documentary record in the form of entries in the daily diary register or any other record reflecting the arrest of accused Dayanand from or even near police post Sarai Kale Khan when Dayanand reached there to join duty. But no such record was produced by prosecution.
62. Even statement of any official of police post Sarai Kale Khan, what to say of Incharge police post, was recorded by the IO as admitted State vs. Subramanyam Yadav etc SC No. 30/14 Page 42 of 46 Pages (43) by PW 19 SI Harbir Singh in his cross examination.
63. Not just this, prosecution did not even place on record any document reflecting that on 03.7.2006 accused Dayanand was on duty on PCR, as alleged in the disclosure statement of accused Subramanyam Yadav. I am conscious that as per Ex. PW 19/F and Ex. PW 19/G, the PCR records were weeded out. But the said records were weeded out only after 10.6.2010. Having arrested constable Dayanand on 10.7.2006, the IO ought to have immediately seized the relevant duty records of constable Dayanand. Prosecution cannot be given benefit of their fault in not having seized the necessary documentary record at the earliest instead of waiting till the weeding out. Even photocopy of any duty record of constable Dayanand has not been filed by prosecution.
64. Like in the case of accused Ramesh, in the case of accused Dayanand also, no independent public witness was joined by the IO at the time of the alleged search and seizure at the house of accused Dayanand and a stereotyped explanation has been brought forth that 34 witnesses were requested to join the investigation but they refused, at the State vs. Subramanyam Yadav etc SC No. 30/14 Page 43 of 46 Pages (44) same time admitting that the IO did not even remember names or addresses of such persons and no action taken against them.
65. As regards the identification of the jewelery articles allegedly recovered from the house of accused Dayanand also, the evidence that the same were the articles owned or possessed by the complainant, the evidence as described above is absolutely unworthy of credence as even those articles form part of the TIP proceedings regarding which testimony of the complainant PW 4 has been described above at length.
66. As regards the articles used for mixing up with the allegedly recovered articles at the time of TIP, the investigating officer PW19 SI Harbir Singh stated in cross examination that in the first complaint or even the subsequent statement, the complainant had not mentioned the three articles allegedly recovered from the house of accused Dayanand; that even weight of those articles or even description of the shop from where the same were purchased was not given by the complainant. But despite that he weighed the said articles, for no reason. PW19 further stated that he had collected the similar articles from jewelers for mixing State vs. Subramanyam Yadav etc SC No. 30/14 Page 44 of 46 Pages (45) up with the allegedly recovered articles at the time of TIP but he did not remember as to how many articles were used for mixing up and also did not remember the names and addresses of the jewelers from whom the said articles for mixing up were obtained.
67. To summarize, there is no reliable evidence reflecting that accused Ramesh was one of the robbers involved in the alleged offence; there is no reliable evidence reflecting that the articles allegedly recovered from and at the instance of the accused persons are the articles that were owned or possessed by the complainant or the same were looted in the alleged incident; there is no reliable evidence reflecting that accused Dayanand was even involved in any manner in the alleged offence.
68. In view of above discussion, it is held that prosecution has failed to prove its case beyond reasonable doubt. Consequently the accused persons are held not guilty of the offence they were charged with and accordingly both the accused are acquitted.
69. However, as regards the accused Subramanyam Yadav @ State vs. Subramanyam Yadav etc SC No. 30/14 Page 45 of 46 Pages (46) Rahul Madrasi, the matter shall be taken up again as and when he is arrested. File be consigned to Records.
Announced in the open court (GIRISH KATHPALIA)
on 05.05.2014 ADITIONAL SESSIONS JUDGE05,
SOUTH EAST, SAKET, NEW DELHI
State vs. Subramanyam Yadav etc SC No. 30/14 Page 46 of 46 Pages