Delhi District Court
State vs . on 14 December, 2013
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL SESSIONS
JUDGE02, CENTRAL, DELHI
FIR No.: 44/2009
PS: Karol Bagh
U/s: 392/397/34 IPC
S.C. No.: 73/09
Case ID No. : 02401R0279792009
In the matter of:
State
Vs.
1. Praveen @ Sonu S/o Ram Dhan
R/o House No. C1/55, Ram Vihar, Delhi
2. Shakil S/o Shabbir Ahmad
R/o House no. 331, Jakir Colony
Rasidi Masjid, Meerut , U.P. (Discharged)
3. Arun Kumar @ Kalu S/o Diwan Chand
R/o V& PO Pandwalakalan, Delhi
4. Dharamveer @ Dhammi S/o Brahm Prakash
R/o V& PO Pandwalakalan, Delhi
Date of Institution : 04.11.2009
Arguments Heard : 03.09.2013, 19.11.2013,
3.12.2013 & 07.12.2013
Date of Judgment : 14.12.2013
JUDGEMENT
Case Of Prosecution:
1. In terms of case of prosecution, on 24.3.2009, DD no. 17A was S.C. No.: 73/09 1/12 marked to ASI Deshpal Singh for necessary action in the matter. On that day complainant/victim Major Singh met the IO and informed him with respect to snatching of his Innova vehicle at the point of revolver by three boys but refused to give his statement on the ground that his owner had told him to give statement only in his presence. On 1.4.2009, complainant alongwith owner of the vehicle came to police station and got his statement recorded.
After registration of FIR, IO prepared the site plan, arrested all the accused persons in the instant matter on receipt of the information with respect to arrest of accused persons in another case FIR no. 17/2009 and their disclosure statements having been made with respect to involvement in the present case, got the TIP of all the accused persons conducted and after completion of investigation filed the instant charge sheet u/s 392/397/34 IPC in the court.
2. Since the offence u/s 397 of IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to the court of sessions.
Charge Against The Accused:
3. Accused Shakil was discharged vide order order dated 27.7.2010, whereas prima facie case u/s 392/34 of IPC r/w section 397 IPC was made out against the remaining accused persons. Charge was framed against them accordingly, to which they pleaded not guilty and claimed trial. Witnesses Examined:
4. In support of its case, prosecution has examined 14 witnesses.
5. The brief summary of deposition of prosecution witnesses is as under:
S.C. No.: 73/09 2/12
6. PW1 is WASI Chanchal, the duty officer who registered the FIR and proved the same as Ex. PW1/A.
7. PW2 is H.C. Parveen Gautam who took the rukka to police station for registration of FIR and handed over the copy of FIR and original rukka to H.C. Shiv Vir Singh.
8. PW3 is SI Ranbir Singh who recorded DD no. 11A and proved the same as Ex. PW3/A.
9. PW4 is Major Singh, victim of the case who besides stating about the incident of robbery also identified all the accused persons present in the court as the assailants.
10. PW5 is H.C. Manoj Kumar who is a witness to arrest of accused Shakil.
11. PW6 is Ct. Ram Sagar who is a witness to arrest of accused Arun and Dharamveer.
12. PW7 is Rakesh, Assistant Ahlmad from the court of Ms. Santosh Snehi Man, Ld. ASJ who brought the record pertaining to case FIR no. 17/09, P.S. Special cell and proved the same as Ex. PW7/A.
13. PW8 is Sh. Siddharth Mathur, Ld. MM who proved the TIP proceedings of accused Arun, Dharmbir and Parveen as Ex. PW8/B, Ex. PW8/D and Ex. PW8/F respectively.
14. PW9 is Resham Singh, owner of Innova vehicle who proved the documents of ownership of the vehicle as mark PW9/A1 to Ex. PW9/A3.
15. PW10 is ASI Surender Kumar, PW11 is H.C. Vinay Tyagi and PW12 is Inspector Praveen Kumar who are witnesses to apprehension and S.C. No.: 73/09 3/12 arrest of accused persons in case FIR no. 17/09, P.S. Special Cell.
16. PW13 is SI Pankaj Kumar who conducted the investigation of case FIR no. 17/09, P.S. Special Cell and had informed P.S. Karol Bagh about the arrest of accused persons and their disclosure statements.
17. PW 14 is SI Deshpal Singh, IO of the case who conducted the investigation of present case and proved the memos in this regard.
18. Statements of all the accused u/s 313 Cr.P.C. were recorded wherein they denied the case of prosecution and stated that they are innocent and have been falsely implicated in the present case.
19. I have heard Ld. APP for the state as well as Ld. Defence counsel and have perused the record.
20. In terms of case of prosecution, PW4 who was working as driver in Kamal Tour & Travels had left from Punjab for Delhi in Innova car to drop three passengers. At about 10 p.m. on 23.3.2009, they reached at one hotel situated at Faiz Road, Karol Bagh where the passengers were dropped who went inside the hotel and PW4 in his vehicle went to meet his cousin brother . He came back to the hotel at about 1 a.m. and parked his vehicle in front of the hotel and slept at the back seat of his vehicle. At about 5 a.m. the passengers had to go to Canada Embassy. On 24.3.2009 at about 4 a.m. someone knocked the windowpane of the vehicle on which he opened the gate of vehicle thinking that his passengers had come but some other three persons entered inside the vehicle and started beating him. Two of them came to the rear seat whereas the third person took out one revolver and aimed at his chest as well as the other person who was at the rear seat S.C. No.: 73/09 4/12 slapped him. One of those accused picked up the key of the vehicle and started driving the vehicle. They also took out his mobile and removed the battery from his mobile and threw the same on the road from moving vehicle. They dropped the vehicle at some distance and brought him to Wazirpur and thereafter all the accused persons took away his vehicle. He went to nearby petrol pump at Wazirpur road and informed the police at 100 number. Police officials of P.S. Saraswati Vihar came there and brought him to Karol Bagh. Thereafter he informed regarding the occurrence to his owner Sh. Resham Singh upon which his owner asked him to come back to Punjab and accordingly he went to Punjab. In terms of deposition of this witness, further on 1.4.2009 he alongwith his owner came to police station Karol Bagh where his statement was recorded by the police officials . On 28.4.2009 he was called by the police officials to reach at Central Jail, Delhi where he was informed that the accused persons had refused to participate in TIP, however on 5.5.2009 he saw all the three accused persons in the police station and identified them as assailants. The witness further identified both the accused persons present in the court i.e. accused Dharamveer and Arun as the same persons who alongwith their third associate had entered inside his vehicle and had robbed him of his vehicle at the point of revolver after beating him. Third accused i.e. Parveen was not appearing at the time of recording of the statement of this witness on 8.2.2011 against whom the proceedings u/s 82 & 83 Cr.P.C. were pending. PW4 stated that he could identify third accused also. This witness was reexamined after accused Parveen was again apprehended and during the reexamination, the witness S.C. No.: 73/09 5/12 identified accused Parveen also in the court.
21. In terms of deposition of this witness, though he was abducted while taking away his Innova taxi by the accused persons at 4 a.m. in the morning of 24.3.2009 but he was left at Wazirpur at about 4 p.m. , contradicting his earlier deposition that he was dropped at some distance by the accused persons. He has not spoken about his having been been taken at any other place prior to reaching at Wazirpur from Karol Bagh . The time which may be consumed to cover distance from Karol Bagh to Wazirpur cannot be stretched upto 12 hours.
22. Initially this witness stated about his leaving the territory of Delhi on 24.3.2009 itself when his owner asked him to come back to Punjab and his arrival to Delhi subsequently only on 1.4.2009 but in cross examination he again contradicted the said statement by submitting that his owner namely Resham Singh told him that he was coming to Delhi and thereafter Resham Singh came to P.S. Karol Bagh in the evening on the same day i.e. on 24.3.2009 when he was present in police station . Though he did know if Resham Singh again lodged any complaint or not but stated that his statement was recorded in the morning. He deposed that whatever he had told to the police, same was recorded and he had not lodged any complaint in the evening. Thereafter he alongwith Resham Singh went to Punjab in the night and after about one week, he again came to Delhi and on that day, he was taken to police station where three accused persons were present and were shown to him. It may be noted that this witness also admitted having lodged the complaint on 24.3.2009 itself which information S.C. No.: 73/09 6/12 pertaining to alleged offence was recorded vide DD no. 17A Ex. PW4/DA dated 24.3.2009 contents of which were also admitted by PW4 except for the line from point ' A' to 'A'. In terms of this DD no. 17A, the information which was given was only pertaining to his vehicle having been stolen exclusive of the information from point 'A' to 'A' according to which PW4 was not aware as to who had taken away his vehicle but it was also informed that he had been dropped at Wazirpur by three boys who were sitting in the car. During his cross examination, on the suggestion put to PW4, he stated that he had not lodged any complaint protesting the wrong recording of portion ' A' to 'A' to any higher police official.
23. Resham Singh was examined as PW9 and according to him the said Innova taxi was given to PW4 for dropping his relatives at Delhi on 23.3.2009. On 24.3.2009 he received a telephone call from PW4 that his Innova vehicle had been taken away by some boys and he alongwith 4/5 persons came to Delhi and went to police station where he gave photocopy of document of ownership of the vehicle to the police. According to this witness, his statement was recorded by the police on 24.3.2009 and the statement of Major Singh i.e. PW4 was recorded prior to recording of his statement on that day. Though surprisingly in cross examination he showed his unawareness with respect to many suggestions like by what time, he had received the telephone call regarding the incident. He was not aware as to S.C. No.: 73/09 7/12 whether he had received the telephone call before sunrise or after sunrise or even in noon time, evening time or night, though he reached at police station in evening time. He was not able to tell if PW4 had given his statement before his reaching in police station or not or whether statement of PW4 was recorded in his presence or at his instance. In terms of his deposition, from that day i.e. 24.3.2009 he reached in the court only for making the statement on the date of their deposition. However IO of the case again contradicted the statements of both these witnesses by stating that the complainant had reported that he was pushed out of the car at Saraswati Vihar . He was asked to give the statement but he told that he was driver and the owner of car had instructed him to make statement in his presence who was out of station at that time. It was only on 1.4.2009 that Major Singh and Resham Singh came to police station Karol Bagh and Major Singh i.e. PW4 got his statement recorded upon which endorsement was made and rukka was prepared followed by registration of FIR.
24. Further PW4 was not aware whether the police collected any record with respect to passengers who were travelling in his taxi on the date of incident and stayed at hotel. He even did not know the name of that hotel.
25. So much so, though this witness admitted that there was complete darkness where he had parked his vehicle and had slept at about 11/12 night , yet he was able to see the accused persons by their faces who sought to clarify that he had seen the faces of accused persons since he was pulled down by two of the accused persons and third was sitting on the driver seat. He was found to have improved upon in the statement pertaining S.C. No.: 73/09 8/12 to the facts that accused persons when entered in the car started beating him, that he was slapped by the person who was sitting on the rear seat of the car, that he was left by the accused persons at Wazirpur, that all the accused persons had taken his vehicle and he went to near by petrol pump at Wazirpur.
26. The fact remains on record that despite the information by PW4 with respect to his vehicle having been robbed, no complaint was recorded as well as no FIR was registered at the police station on 24.3.2009. Rather in terms of DD entry 17A , the information was pertaining to only vehicle having been stolen and not with respect to snatching of the same at the point of pistol or about any beatings having been given to the complainant i.e. PW4, besides the other contradictions as noticed in the statement of PW4 which also is not corroborated by PW9 and IO.
27. The other relevant aspect is with respect to apprehension of accused persons who were apprehended by the officials of Special Cell on 1.4.2009 on receipt of the secret information followed by forming of the raiding party which stopped one Honda City Car and four occupants of the car were apprehended by the police team after their effort to escape and after one of the accused also opened fire on the police party and the occupants of the car including three accused persons of the instant case were booked in FIR no. 17/09 u/s 186/353/307/411/34 IPC and 25/27 Arms Act of P.S. Special Cell. The accused persons disclosed about their involvement in other cases including the case pertaining to instant FIR with respect to snatching of vehicle and in pursuance of their disclosure statements, some vehicles S.C. No.: 73/09 9/12 were recovered but the vehicle pertaining to instant case was not recovered. Admittedly, no public person was joined as witness in the investigation with respect to apprehension of accused persons. Be that as it may, the accused persons were booked in the instant case only on the basis of disclosure statements given by them which did not lead to recovery of either the stolen vehicle or the revolver allegedly used in commission of crime, whereas the disclosure statement remains inadmissible in evidence.
28. Besides the abovesaid, there is force in the argument of Ld. counsel for defence that as per normal human conduct if the disclosure statement is made accused persons will start narrating from the latest commission of offence and not from the series of incidents way back pertaining to many years ago. The instant matter is also mentioned at s.no. 33 in the disclosure statement of accused Parveen and at sno. 11 in the disclosure statements of accused Arun and Dharamveer. In the disclosure statement of accused Parveen, he started disclosing about his involvement w.e.f. June 2008 till the last entry mentioned as s.no. 33 pertaining to instant matter and similarly for the other accused persons, this was the last entry in their disclosure statements with respect to their involvement in the instant matter. The disclosure statement of accused of its own has no value. To have the disclosure statement of accused proved on record admitting their guilt, the investigating officer could have invoked section 164 Cr.P.C. if the accused persons had fairly conceded to having committed the offence which otherwise police wants to base with the attesting witnesses of their team and therefore the disclosure statement of accused is not admissible and is hit by S.C. No.: 73/09 10/12 article 23 of Constitution of Indian since such statement was obtained while the accused was in custody of police.
29. Despite the claim of PW4 with respect to recording of his statement on 24.3.2009 ( though contradicted subsequently ) which was corroborated by PW9, it was stated by the IO that their statements were recorded only on 1.4.2009 when based upon their statements, FIR was registered. Further the apprehension of accused persons on 1.4.2009 followed by their disclosure statements recorded on 1.4.2009 and the recording of statements of PW4 and PW9 by the police on 1.4.2009 itself followed by registration of FIR of the instant case on the same date despite the information having been received on 24.3.2009 itself apparently points out towards the anxiety of the police officials only to show the case having been solved. The information with respect to involvement of accused persons was delivered to P.S. Karol Bagh only on 14.4.2009 by the police officials of Special Cell despite disclosure statements in their hand on 1.4.2009 itself. Whereas PW4 had deposed with respect to refusal of TIP by accused persons on 28.4.2009 followed by their identification by him on 5.5.2009 in the police station, though on the similar breath had also stated that after recording of their statement on 24.3.2009, he alongwith Resham Singh went to Punjab in the night and after about one week, he again came to Delhi and on that day, he was taken to police station where three accused persons were present and were shown to him. Thereafter he again came to Delhi on 28.4.2009 when he was taken to Central Jail by police, meaning thereby that the accused persons were already shown to PW4 in the police S.C. No.: 73/09 11/12 station even prior to conducting their TIP, which also casts a doubt on the case of prosecution.
30. The fact remains that in the instant case which is merely based upon the disclosure statements of accused persons, having not led to any recovery of the vehicle or weapon of offence, prosecution case cannot succeed merely on the basis of identification of accused persons by PW4 in police station or in the court when his own statement is riddled with numerous inconsistencies, contradictions and lacks corroboration by the IO and other public witness on material points as well as is contrary to the first information given to the police on date of incident. In these circumstances, a doubt has emerged in the case of prosecution, benefit of which definitely shall accrue to the accused persons only. Accordingly, they are acquitted of the offence u/s 392/34 IPC r/w sec. 397 IPC.
(SAVITA RAO) Additional Sessions Judge02 (Central) Tis Hazari Courts, Delhi Announced in the open court today i.e. on 14.12.2013 S.C. No.: 73/09 12/12