Delhi District Court
State vs . 1. Bhanu Pratap S/O Sh. Sompal R/O on 7 February, 2012
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : North East /
KARKARDOOMA COURTS: DELHI.
Case ID Number. 02402R0258992010
Sessions Case No. 51/2011
Assigned to Sessions. 01.10.2010
Arguments heard on 03.02.2012
Date of Judgment 07/02/12
FIR No. 341/2010
State Vs. 1. Bhanu Pratap s/o Sh. Sompal r/o
A22, Gali No.1, Pusta Road, West
Karawal Nagar, Delhi.
2. Dharam Veer s/o Banwari Lal r/o
A24, Gali No.1, Pusta Road,
West Karawal Nagar, Delhi.
Police Station Bhajanpura
Under Section 392/394/397/120B IPC
JUDGMENT
1. Present challan had been filed by Station House Officer of Police Station Bhajanpura vide FIR No. 341/2010 dated 26.06.2010 u/s 393/398/120B/34 IPC for the prosecution of accused persons namely Bhanu Pratap and Dharamveer in the court of Ld. Metropolitan Magistrate and Ld. MM after compliance of section 207 Cr. PC committed this case for trial before the court of Sh. B.S. Chumbak, Ld. ASJ and this court had received this case by way of transfer. SC No.51/2011
State Vs. Bhanu Pratap and another 1/24
2. In brief, facts of the case are that on 26.06.2010 a DD No.16A Ex.PW4/A was recorded at police station Bhajanpura regarding stabbing a man, near SBI Branch North Ghonda and Jai Durga trading company. This DD was assigned to ASI Raghuraj Singh to take action in the matter. On receipt of said DD, ASI Raghuraj Singh along with Ct. Pradeep reached at aforesaid spot i.e. in Gali, in front of aforesaid SBI Branch, Delhi where they came to know that injured had already been shifted to GTB Hospital by PCR officials. Thereafter, ASI Raghuraj Singh along with Ct. Pradeep reached at GTB Hospital and collected MLC of injured Pankaj Goel Ex.PW6/A. Injured was not present in the GTB Hospital. Injured Pankaj Goel came at police station at about 07:00 p.m. and recorded his statement Ex.PW1/A wherein he has disclosed that three robbers committed robbery on the points of countrymade pistol and knife, and they ran away after causing injuries to him during the commission of robbery and one mobile phone belongs to robbers had fallen at the place of robbery which he had produced before ASI Raghuraj Singh. ASI Raghuraj Singh had made endorsement Ex.PW8/A upon the statement of injured for registration of FIR. Accordingly, FIR No. 341/2010 Ex.PW2/A u/s 393/298/120B/34 IPC was registered and during the course of investigation, accused persons namely Bhanu Pratap and Dharamveer were arrested. CHARGE:
3. On the basis of material available on record Sh. B.S. Chumbak, ld. ASJ, Karkardooma Court vide order dated 18.10.2010 framed a charge against accused SC No.51/2011 State Vs. Bhanu Pratap and another 2/24 Bhanu Pratap for the offences punishable u/s 394/397 IPC and against accused Dharamveer for the offences punishable u/s 120B/392 IPC to which accused persons did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
4. In order to prove its case prosecution has examined 08 witnesses namely PW1 Pankaj Kumar Goel complainant/injured, PW2 HC Yashvir Singh, PW3 Sh. Kapil Aggarwal (eyewitness), PW4 HC Sandeep Tyagi, PW5 Sh. Vishal Gaurav, PW6 Dr. Ravinder Singh, PW7 Ct. Pradeep Rangi and PW8 ASI Raghuraj Singh.
5. PW1 Pankaj Kumar Goel is a material witness being complainant/injured. This witness has deposed that on 26.06.2010 at about 12:00 noon he along with his nephew Kapil were going to SBI with Rs. Three lacs which were kept in a cloth bag and when they reached near SBI, Ghonda branch 50 mtrs., prior to the bank one Pulsar Motor Cycle having three persons came in front of his motorcycle, two persons from that motorcycle got down and came near them and they tried to snatch the cloth bag containing three lacs. This witness has further deposed that one of those person was armed with knife and other was armed with katta and when he had not given the bag, person having knife had stabbed him over his hand and person who was having katta, kept the katta near the head of his nephew Kapil. Thereafter, this witness had raised alarm, public from the nearby placed gathered there and by seeing the public all the three persons had left the place with their motorcycle. This witness had informed police on number 100, PCR came and SC No.51/2011 State Vs. Bhanu Pratap and another 3/24 shifted him to GTB Hospital. This witness has proved his statement Ex.PW1/A.
6. This witness has further deposed that one mobile phone make Micromax of the accused who was having katta had fallen at the spot and later on handed over the same to the IO who had seized the same vide seizure memo Ex.PW1/B. This witness had correctly identified the accused Bhanu Pratap who had stabbed him and tried to snatch his cloth bag containing Rs. Three lacs.
7. This witness has further deposed that accused Dharamveer was his driver. This witness has proved arrest memo Ex.PW1/C, personal search memo Ex.PW1/D and disclosure statement Ex.PW1/E of accused Dharamveer. In pursuance of disclosure of accused Dharamveer, accused Bhanu Pratap was arrested from his house vide arrest memo Ex.PW1/F, his personal search was conducted vide personal search memo Ex.PW1/G and his disclosure statement was recorded vide Ex.PW1/H. In pursuance to his disclosure statement, accused Bhanu Pratap got recovered the knife from his house used in the crime. I.O. had prepared the sketch of the knife/dagger vide memo Ex.PW1/J and seized the same vide seizure memo Ex.PW1/K. This witness has correctly identified the knife/dagger recovered from accused Bhanu Pratap vide Ex.P1. This witness has correctly identified the mobile phone Micromax vide Ex.P2.
8. This witness was cross examined by ld. Defence counsel at length. During his cross examination by ld. defence counsel, this witness has deposed that Sh. Rajesh Aggarwal who is proprietor of Garg Enterprises which is their sister firm pays the remuneration to accused Dharamveer and accused Dharamveer was working with SC No.51/2011 State Vs. Bhanu Pratap and another 4/24 the said firm for the last two years and no appointment letter was given to him. This witness has deposed that he cannot say if the firm maintain the attendance register or not as he does not deal in that firm. In his cross examination after seeing the phone made up of Micromax Co., this witness had deposed that it appears to be same which was left by the accused at the spot but he cannot say it with surety.
9. In his cross examination, this witness has deposed that from police station he along with the police and Dharamveer went to the house of Dharamveer and then to the house of Bhanu Pratap. This witness has further deposed that he had signed all the memos Ex.PW1/B, PW1/K, PW1/H, PW1/E and PW1/J at the police station on the next morning i.e. on 26.06.2010 at about 8 a.m. His statement Ex.PW1/DA was confronted by ld. Defence counsel.
10.PW2 HC Yashvir Singh. This is the witness of recording of FIR. This witness has proved copy of FIR vide Ex.PW2/A and his endorsement Ex.PW2/B on the rukka.
11.PW3 Sh. Kapil Aggarwal is a material witness being eyewitness. This witness has deposed on the same footing as deposed by PW1 Pankaj Kumar Goel regarding incident but this witness could not identify the accused persons involved in the incident. This witness was declared hostile by the Ld. APP for the State. Even in his cross examination by Ld. APP for the State this witness has not supported the SC No.51/2011 State Vs. Bhanu Pratap and another 5/24 case of prosecution.
12.In his cross examination by ld. defence counsel, his statement Ex.PW3/DA was confronted. During his cross examination, this witness has deposed that he knows accused Dharamveer but he does not know whether he was working as a driver with his uncle or not. Further, this witness has deposed that when he had handed over the mobile phone to the I.O., his uncle was in the hospital.
13.PW4 HC Sandeep Tyagi is a formal witness. This witness had recorded DD No.16A on 26.06.2010 at about 01:05 p.m. on receipt of information from PCR regarding stabbing near Jai Durga Trading Co. This witness has proved the same vide Ex.PW4/A.
14.PW5 Sh. Vishal Gaurav is a Nodal Officer of M/s. Bharti Airtel Ltd. This witness has proved the call details of mobile No.9818951600 from 15.06.2010 to 30.06.2010 consisting of twelve pages vide Ex.PW5/A (collectively). This witness has also proved the EMail send by his office to ACP Gokalpuri regarding ownership of the mobile number vide Ex.PW5/B and certified copy of the customer application along with proof of ID submitted by the customer Dharambeer at the time of issuance of mobile number vide Ex.PW5/C.
15.PW6 Dr. Ravinder Singh. This witness has proved MLC No. A2860 dated 26.06.2010 of injured Pankaj Goel vide Ex.PW6/A on behalf of Dr. Vashistha. SC No.51/2011
State Vs. Bhanu Pratap and another 6/24
16.PW7 Ct. Pradeep Rangi. This witness had remained with the I.O. during the investigation. This is the witness of arrest of accused persons and recovery of knife from accused Bhanu Partap. In his presence I.O. had prepared sketch of dagger Ex.PW1/J and seized the same vide seizure memo Ex.PW1/K. In his presence, ASI Raghuraj had recorded statement of injuredPankaj Kumar Goel Ex.PW1/A.
17.This witness has proved arrest memo Ex.PW1/F and personal search memo Ex.PW1/G of accused Bhanu Pratap and arrest memo Ex.PW1/C and personal search memo Ex.PW1/D of accused Dharamveer. In his presence I.O. had recorded disclosure statement of accused Bhanu Pratap vide Ex.PW1/E and of accused Dharamvee vide Ex.PW1/E. In his presence, I.O. had prepared pointing out memo Ex.PW7/A. This witness was cross examined by ld. defence counsel at length. In his cross examination by ld. defence counsel, this witness has deposed that complainant met them at police station in between 2:00 p.m to 3:00 p.m. and he does not remember whether complainant was having mobile phone in his hand when he had met them at police station. This witness has further deposed that proceedings of sealing of knife had been done at the house of accused Dharamveer which was produced by accused Dharamveer from his house.
18.PW8 ASI Raghuraj Singh is a material witness being I.O. On 26.06.2010 at about 01:15pm, copy of DD No.16A, Ex.PW4/A was assigned to this witness to take action into the matter, which was in connection of stabbing a man, near S.B.I. SC No.51/2011 State Vs. Bhanu Pratap and another 7/24 Branch North Ghonda and Jai Durga trading company. This witness along with Ct. Pradeep reached at aforesaid spot i.e. in Gali, in front of aforesaid SBI Branch, Delhi where it came into his notice that injured had already been removed to GTB Hospital by PCR officials. Thereafter, they reached in GTB Hospital and collected MLC of injured Pankaj Goel, Ex.PW6/A, upon which he had been declared fit by the doctors to make statement but injured was not present in the GTB Hospital. This witness searched him here and there in the GTB Hospital but in vain.
19.This witness has deposed that injured Pankaj Goel came at P.S. at about 07:00pm on 26.06.2010 and recorded his statement Ex.PW1/A wherein it was disclosed by him that three robbers committed robbery on the points of countrymade pistol and knife, and they ran away after causing injuries to him during the commission of robbery. It was also disclosed by him that one mobile phone, belongs to robbers, had fallen at the place of robbery which was produced by him before this witness. This witness had made endorsement Ex.PW8/A and got registered FIR of present case Ex.PW2/A, for offence u/s 393/398/120B/34 IPC. This witness had taken into possession, aforesaid mobile phone vide seizure memo Ex.PW1/B.
20.This witness had inspected the place of occurrence and prepared unscaled site plan, Ex.PW8/B. This witness had recorded statement u/s 161 Cr. P.C. of one Kapil and checked the call details from aforesaid mobile phone i.e. Red and Black colour, Micromax mobile phone and one mobile number which belongs to one Dharamveer, was found in the phone book of aforesaid mobile phone. SC No.51/2011
State Vs. Bhanu Pratap and another 8/24
21.Thereafter, complainant led them at the house of Dharamveer, who was the driver of complainant. There, accused Bhanu Pratap was sitting with him. This witness had arrested accused Bhanu Pratap at the instance of complainant and recorded his disclosure statement Ex.PW1/H. It was disclosed by accused Bhanu Pratap that robbery was committed after receiving information from accused Dharamveer with the help of his two associates Jamil @ Javel and Sunil (not traced). It was also disclosed by him that he can get recovered weapon of offence i.e. dagger from his house. This witness has further deposed that thereafter, accused Bhanu Pratap led them at his house i.e. H. No. A22, Gali No.01, Pusta Road, West Karawal Nagar, Delhi and he took out one dagger, from wall fitted Almirah, of his room and produced the same before him and this witness had taken its measurements and prepared sketch of dagger Ex.PW1/J and converted the aforesaid dagger into a parcel, sealed with the seal of RS and seized vide seizure memo Ex.PW1/K. Thereafter, this witness had arrested accused Dharamveer as he had passed on information to accused Bhanu Pratap that complainant was having a bag containing a sum of Rs. 03 lacs, vide arrest memo Ex.PW1/C and Personal Search Memo Ex.PW1/D and recorded disclosure statement of accused Dharamveer Ex.PW1/E. Thereafter, both the accused persons led them at the place of occurrence and accused Bhanu Pratap pointed out the place of occurrence and this witness had prepared pointing out memo at his instance, Ex.PW7/A .
22.This witness had correctly identified the dagger which was got recovered by SC No.51/2011 State Vs. Bhanu Pratap and another 9/24 accused Bhanu Pratap and it had been identified by complainant saying that it was used by the accused Bhanu Pratap at the time of committing robbery vide Ex.P1.
23.This witness had also correctly identified mobile phone is Ex.P2. This witness had recorded statements of PWs time to time and collected CDRs of mobile phone connection number 9818951600 which belongs to accused Dharamveer vide Ex.PW5/A1 to Ex.PW5/A12. Documents of ownership of aforesaid mobile is Ex.PW5/B. The CDRs, reveal that accused Dharamveer had made calls on the phone which was produced before me by the complainant and he had lifted the same from the spot just after commission of robbery. This witness was cross examined by ld. defence counsel at length.
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
24.After prosecution evidence, statement of both the accused persons u/s 313 Cr. P.C. were recorded wherein both accused persons denied all circumstances, allegations and evidence put to them and they claimed to be innocent and have been implicated falsely. Accused Dharamveer has deposed that he is innocent and has been falsely implicated in this case. Accused Dharamveer has deposed that he was working with one Rakesh Jain, who is brotherinlaw of complainant Pankaj and was getting salary from Rakesh Jain @ Rs.5,500/ per month but on some occasion he was not paid his dues and salary in time and he had requested Rakesh Jain to give the due salary. Thereafter, his management reduced his salary and SC No.51/2011 State Vs. Bhanu Pratap and another 10/24 when he had made complaint in this regard to them, on this, his boss became angry and he warned him to leave the job and to file a case in the court against him. Accused Dharamveer has further deposed that he was the person who had taken injured to the hospital.
25.Accused Bhanu Pratap has deposed that he has been falsely implicated in the present case. In fact on 26.06.2010 he had come to his house and his father had asked him to accompany him to police station Bhajanpura as some policemen had come to him in connection with some inquiries and he went to police station with his father where the local police of police station Bhajanpura had falsely booked him in this case.
26.They had preferred to lead D.E. In his support accused persons has examined DW1 Sh. Sompal Singh, DW2 Sh. Chander Pal and DW3 Sh. Banwari Lal. DEFENCE WITNESSES:
27.DW1 Sh. Sompal Singh has deposed that accused Dharamveer is residing in Gali No.01/1 and his house and the house of accused Dharamveer are situated in two different galis. This witness has deposed that on 26.06.2010 at about 4:00 p.m. one policeman in civil dress came at his house on police motorcycle and asked about his son Bhanu Pratap and he had informed that Bhanu Pratap had gone to drop some Pepsi crates in his three wheeler to Maujpur and the said policeman SC No.51/2011 State Vs. Bhanu Pratap and another 11/24 asked him to produce his son Bhanu Pratap in police station Bhajanpura at about 05:30 p.m. and he took Bhanu Pratap to police station and he was detained there. In his cross examination by Ld. APP for the State, this witness had deposed that neither he had made any call at 100 number nor he had moved any complaints before any authorities nor he had filed any complaint against police regarding confinement of his son Bhanu Pratap at police station Bhajanpura.
28.DW2 Sh. Chander Pal has deposed that he has been residing as a tenant at the ground floor of House No. A22, Gali No.01/2, West Karawal Nagar, Delhi for last 10 years which belongs to Sh. Sompal and the house of accused Dharamveer is situated in another gali i.e. Gali No.01/2. This witness has proved his ration card vide Ex.DW2/A.
29.DW3 Sh. Banwari Lal has deposed that his son Dharamveer was arrested by the police on 26.06.2010 from his office and police had never come to his house in search of Dharamveer at about 7:00 p.m. In his cross examination by Ld. APP for the State, this witness has denied that on the day of arrest and before his son Dharamveer was attached as driver of Jai Durga Trading Firm which belongs to Pankaj Kumar Goel.
30.Thereafter, case was fixed for arguments.
ARGUMENTS:
SC No.51/2011
State Vs. Bhanu Pratap and another 12/24
31.Ld. APP for the State has argued that on the statement of injured/complainant Pankaj Kumar Goel Ex.PW1/A, FIR No.341/2010 dated 26.06.2010 u/s 393/398/120B/34 IPC was registered against accused persons namely Bhanu Pratap and Dharamveer and they were arrested. Thereafter, charge was framed against accused Bhanu Pratap for the offences punishable u/s 394/397 IPC and against accused Dharamveer for the offences punishable u/s 120B/392 IPC.
32.As per prosecution story, three persons chased complainant on bike who was with his relative on other bike, accused snatched the bag from complainant, other accused pointed out a knife towards complainant, 3rd accused still standing with their motorcycle. One mobile phone was also recovered from the spot. Active role has been assigned to accused Bhanu Pratap Singh, bag was restored by complainant. Other accused Salim is absconding/not arrested.
33.Ld. APP for the State further argued that dagger/knife used in crime was recovered from accused Bhanu Pratap who was sitting with accused Dharamveer at his house who is driver of complainant - Pankaj Goel. PW3 Kapil Aggarwal - relative of complainant. PW8 I.O. ASI Raghuraj Singh and PW7 Ct. Pradeep Rangi, both accompanied the complainant while reaching at the house of accused Dharamveer.
34.Ld. APP for the State further argued that MLC of complainant is on record. Hence, section 394 IPC is also attracted. PW6 Dr. Ravinder Singh has proved the MLC of complainant on behalf of Dr. Vashistha. Hence, Ld. APP for the State has SC No.51/2011 State Vs. Bhanu Pratap and another 13/24 prayed to convict the accused persons under the section for which they have been charged.
35.On the other hand Ld. counsel for accused persons has argued that accused were not arrested at the spot and as per disclosure statement of accused Dharamveer, accused Dharamveer led the police to the house of accused Bhanu Pratap. Accused Dharamveer was interrogated on finding his number in mobile phone which was lifted by complainant from the spot. As per complainant Bhanu Pratap was the main accused who had robbed him.
36.Ld. counsel for accused persons further argued that accused Dharamveer had led the police team to the house of accused Bhanu Pratap whereas case of prosecution is that both the accused persons were present at the spot who had come on same motorcycle.
37.Ld. counsel for accused persons further argued that in his cross examination PW1 has deposed that he had handed over the Micromax mobile to the police which he had lifted from the spot, at his office at about 2:00 pm after returning from the hospital but in his cross examination this witness has deposed that he cannot tell the colour of the mobile without seeing the mobile phone and after showing the same mobile phone, he deposed that this mobile phone appears to be same which was left by the accused at spot but he cannot say it with surety.
38.Ld. counsel for accused persons further argued that PW1 has further deposed that SC No.51/2011 State Vs. Bhanu Pratap and another 14/24 from police station he along with the police and Dharamveer went to the house of Dharamveer and then to the house of Bhanu Pratap but later on he has deposed that he did not state in his statement u/s 161 Cr.P.C. that he along with police firstly went to the house of accused Dharamveer where he saw accused Dharamveer and accused Bhanu Pratap were sitting in the house of Dharamveer. The portion A to A of the statement Ex.PW1/DA was confronted by ld. defence counsel. Ld. counsel further submits that this witness has further stated in his statement to the police that from the house of Dharamveer they went to the house of accused Bhanu Pratap where he was arrested and at the pointing out of accused Dharamveer, accused Bhanu Pratap was apprehended and was arrested, the same was confronted with the statement Ex.PW1/DA.
39.Ld. counsel for accused persons further argued that in his chief PW1 Pankaj Kumar Goel has deposed that he had informed police on number 100, PCR came and shifted him to GTB Hospital, local police came to GTB Hospital and recorded his statement Ex.PW1/A but in his cross examination he has deposed that he had got his statement recorded in the police station Ex.PW1/A when he visited the police station secondly at about 2:003:00 pm and accused Dharamveer had accompanied him to GTB Hospital and then to office.
40.Ld. counsel for accused persons further argued that date on memos Ex.PW1/B, PW1/K, PW1/H, PW1/E and PW1/J is different as mentioned by the injured in his statement.
SC No.51/2011
State Vs. Bhanu Pratap and another 15/24
41.Ld. counsel for accused persons further argued that complainant stated that he does not know about the house of accused Dharamveer prior to the incident whereas case of prosecution is that complainant had led the police at the house of accused Dharamveer.
42.Ld. counsel for accused persons further argued that MLC of complainant disclosed that injured was brought by Ajay Kumar whereas complainant states that accused Dharamveer had accompanied him to GTB Hospital.
43.Ld. counsel for accused persons further argued that PW3 has refused whether the accused Dharamveer was the employee/driver of complainant despite the fact the accused Dharamveer was known to him and this witness had picked up the mobile from the spot. This witness has further deposed that when he had handed over the mobile phone to the I.O., his uncle Pankaj was in the hospital and the statement of his uncle was not recorded in his presence. This witness could not identify the accused persons as culprits. No TIP of accused persons had been conducted.
44.Ld. counsel for accused persons further argued that details of recovered mobile phone from the spot has not been disclosed. PW5 is not much relevant witness. Identity of mobile phone of accused Dharamveer is not disputed but mobile phone No.9818951600 has not been disclosed by any of the PWs.
45.Ld. counsel for accused persons further argued that PW7 Ct. Pradeep Rangi has deposed in his examination in chief that injured met them at police station in SC No.51/2011 State Vs. Bhanu Pratap and another 16/24 between 2:00 pm to 3:00 pm but version of PW8 ASI Raghuraj Singh is different on this fact.
46.Ld. counsel for accused persons further argued that PW7 Ct. Pradeep Rangi has deposed in his examination in chief that accused Bhanu Pratap took out one knife used in crime from his house at Karawal Nagar whereas in his cross examination this witness has deposed that proceeding of sealing of knife had been done at the house of accused Dharamveer which was produced by accused Dharamveer from his house. This witness further deposed that the knife was recovered from the house of accused Dharamveer at the instance of accused Bhanu Pratap whereas PW8 ASI Raghuraj has deposed that accused Bhanu Pratap had led them at his house i.e House No.A22, Gali No.01, Pusta Road, West Karawal Nagar, Delhi and he took out one dagger from wall fitted almirah of his room and produced the same before him.
47.Ld. counsel for accused persons has further argued that no case is pending against any of the accused persons except the present case. On this ground, ld. counsel for accused persons prayed for acquittal of both the accused persons from the charges.
48.Arguments heard. Before reaching at the conclusion let the relevant sections i.e. 392/394/397/120B IPC be reproduced which are as under: Section 392 IPC "Punishment for robbery Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to find; and, if the robbery be SC No.51/2011 State Vs. Bhanu Pratap and another 17/24 committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years."
Section 397 IPC "Robbery, or dacoity, with attempt to cause death or grievous hurt - If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
Section 394 IPC "Voluntarily causing hurt in committing robbery." If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and other person jointly concerned in committing or attempting to commit such robber, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Punishment of criminal conspiracy.
(1)Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall,where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
PERUSAL OF RECORD AND OPINION:
49.Record perused. On perusal of record it is revealed that present case was registered on the statement of complainant/injured PW1 Pankaj Kumar Goel Ex.PW1/A and SC No.51/2011 State Vs. Bhanu Pratap and another 18/24 FIR Ex.PW2/A u/s 393/398/120B/34 IPC against the accused persons and they were arrested. Thereafter, vide order dated 18.10.2010 charge was framed against accused Bhanu Pratap for the offences punishable u/s 394/397 IPC and against accused Dharamveer for the offences punishable u/s 120B/392 IPC.
50.On perusal of record, it is further revealed that I.O. had arrested accused Dharamveer from his house vide arrest memo Ex.PW1/C and personal search memo Ex.PW1/D and recorded his disclosure statement vide Ex.PW1/E.
51.On perusal of record, it is further revealed that during course of investigation, I.O. had recorded statement of PWs time to time, collected MLC of injured Ex.PW6/A, collected CDRs Ex.PW5/A and Ex.PW5/B of mobile phone No.9818951600.
52.On perusal of record, FIR reveals that complainant and his nephew Kapil Aggarwal were going to S.B.I North Ghonda to deposit Rs. Three lacs which was in his bag and when they reached near Jai Durga Trading Company, three persons had stopped them and they tried to snatch the bag containing Rs. Three lacs from the complainant and on his objection one accused had inflicted injury upon his person by a knife/dagger. This fact shows that complainant was driving the motorcycle and bag was in possession of PW3 whereas in his statement before court he states that accused Bhanu Pratap had stabbed him with knife and tried to snatch his bag meaning thereby he has shown the possession of bag containing Rs. Three lacs was with him. Further, complainant in his statement described three persons and states before the court that accused Dharmaveer accompanied him to SC No.51/2011 State Vs. Bhanu Pratap and another 19/24 the hospital contrary PW1 states that at that time accused Dharamveer was in office and he has no knowledge about his address.
53.On other hand he states that he restored possession of his bag containing Rs. Three lacs from the accused persons and he further submits that accused persons were having katta and knife. It is unamazing that in the course of scuffle of bag accused did not fire, even in the air.
54.Complainant in his statement further states that he had led the police party to the house of accused Dharmaveer where accused Dharamveer and Bhanu Pratap were sitting. It is contrary to his statement that accused Dharamveer was sitting in his office. If Dharamveer was sitting in his office why he did not get him arrested from there and why he led police party to the house of accused Dharmamveer.
55.Further, PW1 states before this court that entire documents except sketch of dagger was prepared at the house of accused Dharamveer whereas on contrary he states that he had signed the documents at police station after releasing from hospital.
56.Similarly, PW3 in his statement submits that as per instruction of his uncle/complainant he had handed over mobile phone to I.O. whereas PW1 submitted that he had handed over mobile phone which he had lifted from the spot to the I.O. where his statement was recorded.
SC No.51/2011
State Vs. Bhanu Pratap and another 20/24
57.On perusal of record, It is also revealed that alleged phone number belong to accused Dharmaveer but that is not sufficient to connect the accused in absence of any call made in connection with present offence.
58.Further on perusal of record, MLC of injured Pankaj Kumar Goel shows that injury was simple in nature. MLC of complainant disclose that injured was brought by Ajay Kumar whereas complainant states that accused Dharamveer had accompanied him to GTB Hospital.
59.Further on perusal of record, it is also revealed that PW7 Ct. Pradeep Rangi has deposed in his examination in chief that accused Bhanu Pratap took out one knife used in crime from his house at Karawal Nagar whereas in his cross examination this witness has deposed that proceeding of sealing of knife had been done at the house of accused Dharamveer which was produced by accused Dharamveer from his house. This witness further deposed that the knife was recovered from the house of accused Dharamveer at the instance of accused Bhanu Pratap whereas PW8 ASI Raghuraj has deposed that accused Bhanu Pratap had led them at his house i.e House No.A22, Gali No.01, Pusta Road, West Karawal Nagar, Delhi and he took out one dagger from wall fitted almirah of his room and produced the same before him. Testimony of PW7 Ct. Pradeep Ragi and of I.O. PW8 is contrary to each other on the fact of recovery of knife.
60.It is further revealed that PW7 Ct. Pradeep Rangi has deposed in his examination in chief that injured met them at police station in between 2:00 pm to 3:00 pm but SC No.51/2011 State Vs. Bhanu Pratap and another 21/24 version of PW8 ASI Raghuraj Singh is different on this fact.
61.Moreover, there is no independent witness to the recovery of dagger from accused Bhanu Pratap despite the fact that some other persons were residing as tenants in the same premises. Hon'ble High Court of Delhi in judgment titled 'Pritam Singh Vs. State cited as 1998(1) JCC (Delhi) 94' where it has been observed that:
"the recovery should be made in presence of independent witnesses if available and the search and seizure in compliance of section 100 (4) of Cr. P. C., would vitiate the trial."
62.It is further revealed that PW6 Dr. Ravinder Singh, CMO, GTB Hospital has proved MLC No. A2860 Ex.PW6/A of Pankaj Goel on behalf of Dr. Vashistha and opined the nature of injuries as simple by sharp object.
63.On perusal of record it is revealed that PW8 ASI Raghuraj states that he had prepared unscaled site plan at the instance of complainant Ex.PW8/B and he had arrested accused Bhanu Pratap on pointing out of complainant vide arrest memo Ex.PW1/F and personal search memo Ex.PW1/G. I.O. had also recorded disclosure statement of accused Bhanu Pratap vide Ex.PW1/H and in pursuance to his disclosure statement, accused Bhanu Pratap had got recovered dagger Ex.P1 used in the crime from the house of accused Dharamveer and I.O. had seized the the same vide seizure memo Ex.PW1/K after taking measurement and preparing sketch Ex.PW1/J. I.O. had prepared pointing out memo Ex.PW7/A at the instance of accused Bhanu Pratap.
SC No.51/2011
State Vs. Bhanu Pratap and another 22/24 64.Since it is revealed from the testimony of complainant that there are
contradictions in his statement before court and before the police, which shows improvements in the statement of complainant which is not reliable. In his examination in chief he has deposed that police officials had shifted him to GTB Hospital but in his cross examination he has deposed that accused Dharamveer accompanied him to GTB Hospital whereas in his MLC he had got mentioned that Ajay Kumar had brought him to GTB Hospital.
65.Moreover, PW3 Kapil Aggarwal, nephew of complainant who is also an eyewitness had not identified the accused Bhanu Pratap and Dharamveer as culprits. Even in his cross examination by Ld. APP for the State, this witness had not identified the accused Bhabu Pratap who had caused injury to his uncle/complainant Pankaj Kumar Goyal in the incident. Hence, testimony of PW1 is not corroborated by PW3 who is the eyewitness. Now only official witnesses left and their testimony cannot be relied unless circumstance are corroborated by them. Moreover, complainant had stated in his statement that he had deposited aforesaid Three lacs rupees with his banker but no receipt regarding deposit of Rs. Three lacs by the complainant has been placed on record which throw doubt on the version of complainant upto the extent of attempting of snatching of Rs. Three lacs from his possession by accused persons. Hence, fact of robbery of Rs. Three lacs cannot be said to be reliable.
66.On the point of major contradictions the Hon'ble Supreme Court of India in a case SC No.51/2011 State Vs. Bhanu Pratap and another 23/24 titled as 'Jaskaran Singh Vs State 1997 SCC (Crl) 651' has also observed the following facts that:
"When the evidence of first informant is found to be full of contradictions, exaggerations and improvements, he cannot be held to be a truthful witness".
67.After perusal of record and arguments, keeping in view facts and circumstances of the case at this stage, this court is of the opinion that prosecution has been failed miserably to prove the guilt of accused persons with the fact and circumstances of the case beyond reasonable doubt. Hence, prosecution could not prove its case either by ocular evidence or by circumstantial evidence to connect the accused persons. Hence, the case of prosecution does not inspire the confidence of this court.
68.Accordingly, in the absence of sufficient evidence against the accused persons, at this stage, this court acquit accused Bhanu Pratap from the charges u/s 394/397 IPC and accused Dharamveer from the charges u/s 392/120B IPC by giving them benefit of doubt.
69.In terms of Section 437 (A) Cr. P.C. accused persons namely Bhanu Pratap and Dharamveer are directed to execute bail bond in sum of Rs.20,000/ each with one surety in the like amount for the period of six months. Order accordingly, file be consigned to record room.
PRONOUNCED IN THE OPEN COURT
ON THIS 07.02.2012
(RAMESH KUMARII)
SC No.51/2011
State Vs. Bhanu Pratap and another 24/24
ASJ01/ NORTH - EAST
KARKARDOOMA COURTS, DELHI
SC No.51/2011
State Vs. Bhanu Pratap and another 25/24