Delhi District Court
State vs . Parveen Etc. on 29 June, 2013
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IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 14/11)
Unique ID case No. 02404R0000712011
State Vs. Parveen etc.
FIR No. : 414/10
U/s : 392/397/201/34 IPC
P.S. : Model Town
State Vs. 1. Parveen
S/o Sh. Suresh
R/o H. No. 411, Balmiki Chowk
Azadpur, Delhi.
2. Ashraf
S/o Azaz Khan
R/o N9, B25, Lal Bagh,
Azadpur, Delhi.
Date of institution of case 08.04.2011
Date on which, judgment has been reserved 23.05.2013
Date of pronouncement of judgment - 29.06.2013
S. C No. 14/11 : State vs. Parveen etc. : 1/38
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JUDGMENT:
1. The case of the prosecution is that on the night intervening 05/06.11.2010, information was received at PS Model Town regarding theft of motorcycle, which was reduced to writing vide DD no. 12 A. The same was marked to PW8 SI Anil Kumar and PW2 Ct. Vijay Kumar for investigation. They both went to the spot i.e. House no. E218, Model TownIII, MCD Colony and met PW6 Joginder, who told them that his motorcycle bearing registration no. DL8SAC6827, which was parked by him outside his house, had been stolen by someone. The PW6 Joginder, however stated that he would get his statement later on and accordingly DD no. 12A was kept pending. On 06.11.2010, PW8 SI Anil Kumar was on patrolling duty with PW2 Ct. Vijay Kumar and when they reached Hans Cinema at about 4.00 pm, they noticed that complainant Devender and his friend Sanjay Singh had caught hold of one person, whose name was revealed as Parveen, and were taking him towards Police station. When, said Devender and Sanjay Singh saw PW8 SI Anil Kumar and PW2 Ct. Vijay Kumar, they produced accused Parveen before them and stated that accused Parveen along with his three associates had robbed them off motorcycle near Shiv Mandir, MCD colony, Model TownIII. The PW8 recorded statement of complainant Devender Singh vide Ex. PW3/A, prepared rukka Ex. PW8/A thereupon and sent PW2 Ct. Vijay Kumar to PS for registration of the case. The PW2 Ct. Vijay got case FIR Ex. PW1/B registered through PW1 HC Naresh Kumar and returned to spot S. C No. 14/11 : State vs. Parveen etc. : 2/38 3 with copy of FIR and original rukka and handed them over to PW8 SI Anil Kumar.
The accused Parveen was interrogated and his disclosure statement Ex. PW3/D was recorded and thereafter, he was arrested and personally searched vide memo Ex. PW3/B and Ex. PW3/C, respectively. Thereafter, accused Parveen led the police party to the house of his coaccused Asraf at Lal Bagh, Azadpur. The said accused was identified by PW Devender and Sanjay Singh and was thereafter, arrested vide arrest memo Ex. PW3/J and was personally searched vide memo Ex. PW3/K. During the course of further investigations, accused Parveen and Asraf led the police party to G116, in front of Victoria Garden, M2K block, to a building under construction and pointed out towards one motorcycle, which was lying there in burnt condition and disclosed that they had burnt the motorcycle robbed by them from the complainant. IO got spot of recovery of motorcycle inspected through crime team. He also compared the chasis number and engine number of the burnt motorcycle from R.C, which was produced by complainant Devender and after verification, he seized the motorcycle, vide seizure memo Ex. PW3/E. The pointing out memo and the site plan of the said place were prepared at the instance of both the accused persons vide Ex. PW3/F and Ex. PW3/M respectively. Thereafter, both the accused led the police party to the spot in front of Shiv Mandir at E block, MCD Colony, Azadpur, from where they had robbed the motorcycle along with their other coaccused and at their instance pointing out memo Ex. PW3/G and site plan Ex. PW3/N were prepared.
S. C No. 14/11 : State vs. Parveen etc. : 3/38 4 The RC of the motorcycle was seized vide memo Ex. PW3/H. When, Sh. Joginder, brother of the complainant reached the said place, his statement was also recorded by the IO. Thereafter, accused Parveen was remanded to J.C, while accused Ashraf was taken on one day PC remand, during which, efforts were made to trace and apprehend other accused persons, but all in vain. After completing investigations, charge sheet was prepared and filed the same in the court.
2. After committal, arguments on the point of charge were heard and on the basis of the material on record, the charges for committing the offences punishable u/s 392/201/34 were framed against both the accused and a separate charge u/s 397 IPC was also framed against accused Parveen by the Ld. Predecessor of this Court. Accused persons pleaded not guilty to the charges framed against them and claimed trial.
3. In support of its case, prosecution has examined eight witnesses i.e PW1 to PW8.
4. The PW1, HC Naresh Kumar was working as duty officer at PS Model Town at the relevant time. He proved the endorsement made by him on the rukka as Ex.
PW1/A and computerized copy of FIR as Ex. PW1/B. S. C No. 14/11 : State vs. Parveen etc. : 4/38 5
5. The PW3, Devender Singh Bisht is the complainant in the present case. He deposed that on the day of the incident, which had taken place in the year 2010, on day of Diwali Festival (the witness could not tell the exact date and month of the incident), his friend/PW7 Sanjay Singh Rawat had come to his house to exchange gifts/sweets for Diwali Festival and that at about 12:00 midnight, he along with his friend/PW7 Sanjay Singh Rawat came on motorcycle bearing registration no. DL 8SAC 6827 at bus stoppage opposite metro station Azadpur to drop his friend/PW7 and that after waiting for considerable time, when the bus did not come, he asked PW7 Sanjay to accompany him to his house, to which PW7 Sanjay agreed and accompanied him to his house. The PW3 Devender further stated that while they were coming back to his house on motorcycle, they reached near Shiv mandir, which was situated in their locality, at about 12:30 AM/1:00 AM and he stopped his motorcycle and they both started talking with each other there. The PW3 further deposed that while they were talking to each other, 45 persons came there and asked them, "Jo Kuch Hai Tumhare Paas, Nikal Do" and when PW3 objected to the same, one of them, whose name was later on revealed as Praveen, showed them countrymade pistol, which was kept by him in the dub of his wearing pant by removing his shirt upward and that while showing the countrymade pistol, he (Parveen) again reiterated, "Tumhare Pass Jo Kuch Hai, Nikal Do" and while saying these words, he pushed both of them. The PW3 further stated that thereafter, they both ran away from there after leaving their S. C No. 14/11 : State vs. Parveen etc. : 5/38 6 motorcycle as they were scared at that time and thereafter they returned to their house. The PW3 then stated that though the motorcycle was of his brother, due to fear, he did not disclose anything either to his family members or his brother and that on the same night, his brother made complaint to the police regarding missing of motorcycle and that in the morning, he narrated all the facts to his brother and later he and his friend Sanjay went in search of motorcycle.
The PW3 further stated that when in the afternoon, they reached near Hans Cinema, they saw one boy, who had shown countrymade pistol to them, was standing there and that he along with his friend/PW7 Sanjay overpowered him and that in the meantime, police came there and they handed over said person, whose name was revealed as Parveen, to the police. He further stated that his statement Ex. PW3/A was recorded by the police, but he showed his lack of awareness about the contents of said statement. The PW3 further deposed that accused Praveen was arrested vide arrest memo Ex. PW3/B and that his personal search was conducted vide memo Ex. PW3/C and that during the course of interrogation, he made disclosure statement Ex. PW3/D and that thereafter, accused Praveen led them to an under construction building namely M2Kl and pointed out towards a motorcycle vide pointing out memo Ex. PW3/F, which was in burnt condition, while saying that he had set the motorcycle on fire and that the photographs of the said burnt motorcycle were taken by the police and that the said burnt motorcycle was taken into possession S. C No. 14/11 : State vs. Parveen etc. : 6/38 7 vide seizure memo Ex. PW3/E. The PW3 further stated that thereafter, accused also pointed out the place of occurrence vide pointing out memo Ex. PW3/G and thereafter, accused and case property were taken to PS, where on asking by the Police, he handed over the RC of the said motorcycle to the police and that the said RC was taken into possession vide seizure memo Ex. PW3/H. He showed his lack of awareness about what happened thereafter, however, he stated that another accused, whose name was revealed as Ashraf, was also apprehended at the instance of accused Praveen from his house at Lal Bagh and that said Ashraf was arrested vide arrest memo Ex. PW3/J and that his personal search was also conducted vide memo Ex. PW3/K. The witness identified the burnt motorcycle as Ex. P1.
This witness was crossexamined by Ld. Addl. PP as he failed to support the prosecution case as per his complainant and statement. During his said cross examination, he termed it correct that the incident had taken place on the night of Diwali i.e. 05/06.11.2010 and that when they reached near Shiv mandir MCD Colony on motorcycle, four boys stopped them and that the said four boys had run away from there along with their motorcycle after pushing and threatening them. During further crossexamination, he denied that he had stated in his statement to the police that accused Praveen had led them to the house of accused Ashraf, from the place of arrest, at about 7:00 PM. He also denied that he had stated in his statement to the police that when accused Praveen led them to the house of accused Ashraf, he S. C No. 14/11 : State vs. Parveen etc. : 7/38 8 (Ashraf) was also identified by him and his friend Sanjay Singh Rawat. The PW3 termed it correct that from the house of accused Ashraf, both the accused i.e. Praveen and Ashraf led the police party opposite to the gate of a under construction building at M2K block Victoria Garden and that they both pointed out the place where the motorcycle in question was lying in burnt condition and a pointing out memo was prepared by the IO at their instance and that they both put their signatures on it. He further termed it correct that accused Ashraf was also interrogated by the police and during that course his disclosure statement Ex. PW3/L was recorded and that IO had prepared the site plan Ex. PW3/M, of place of recovery of motorcycle. Though PW3 admitted that he had shown the place of occurrence to the police, he stated that he did not remember as to whether the site plan of said place was prepared or not. The PW3 denied that site plan of place of occurrence was prepared at his instance, however, when site plan Ex. PW3/N was shown to the witness, he identified his signatures thereupon. He also termed it correct that due to lapse of time, he had forgotten certain facts of the present case.
The PW3 was also crossexamined by the learned defence counsels for the accused persons and during the said crossexamination, PW3 stated that he did not remember whether he was having a mobile phone with him at that time or not and whether his friend Sanjay was having the mobile phone with him at that time or not. He further stated that he did not remember the time, when his friend Sanjay came to S. C No. 14/11 : State vs. Parveen etc. : 8/38 9 his house. The PW3 further stated that there was only one motorcycle in his house and that his brother was not at home, when he alongwith PW7 Sanjay left his house on his motorcycle, however, his other family members except his brother were present at home when they left the house on motorcycle. The PW3 further stated that none of his family members raised objection on their leaving the house on motorcycle at about 12:00 midnight and that the distance between the bus stoppage, where he had to drop his friend and his house was about ½ km and that they waited for bus for about 1015 minutes and when they reached near Shiv mandir, stopped their motorcycle and started talking with each other, the Shiv mandir was closed. He further stated that he did not remember whether there were 4 or 5 persons (assailants). He also stated that prior to the arrest of accused Praveen, he was not knowing that he was a resident of their locality. Though PW3 stated that he had gone to the house of accused Praveen along with police, he could not tell the distance between his house and house of accused Praveen. He termed that part of his statement correct wherein he had stated that as they were scared at that time, they both ran away from there after leaving their motorcycle and came to the said spot next day in the morning. He further termed it correct that he did not know by whom the motorcycle was taken away from the spot. He further stated that he did not make any complaint against this incident till the time of apprehension of the accused Praveen and that he did not remember the time, when his brother lodged complaint/reported the matter to the S. C No. 14/11 : State vs. Parveen etc. : 9/38 10 police regarding the missing of motorcycle. He further stated that when he told about the incident to his brother in the morning, his brother did not take him to the police. He also stated that he did not remember whether any FIR was registered on the complaint of his brother regarding missing of motorcycle. He shows his lack of awareness to the fact if his brother had claimed insurance regarding damage to the motorcycle. He further stated that he alongwith PW7 Sanjay overpowered accused Praveen with the help of public persons, who were present at Hans cinema.
During his further crossexamination, PW3 stated that his statement was recorded in the PS on the next day of Diwali, in the afternoon, however he corrected himself by saying that same was recorded in the evening. The PW3 further stated that he did not remember as to how many papers and on what papers, he signed and what were the contents of the said documents. He further stated that he did not remember whether he had signed all the documents at one time or at different times and whether he had gone through the contents of the documents before signing them or not.
During his further crossexamination, PW3 stated that they i.e. himself, his brother, his friend Sanjay, police officials and accused persons, reached the place where the motorcycle was lying in burnt condition, in evening time in a government vehicle i.e. Qualis. He further stated that he did not remember whether any specific identification mark on the motorcycle was put by the police or not. He also stated S. C No. 14/11 : State vs. Parveen etc. : 10/38 11 that he did not check the said chasis and engine number when the said motorcycle was shown to him in the court complex. He also stated that he did not remember whether he had gone through the contents of the statement Ex. PW3/A when he put his signatures on it and he also did not remember, if whatever was deposed by him in the court had been stated by him in his statement Ex. PW3/A to the police. During his further crossexamination, PW3 stated that he had stated in his statement Ex. PW3/A that his friend Sanjay came to his house for exchanging the gifts/sweets for Diwali festival and that he had gone to drop his friend Sanjay at bus stoppage opposite metro station Azadpur, but despite their waiting for bus, it did not come or thereafter he asked Sanjay to accompany him to his house and on this Sanjay agreed to accompany him to his house. He was confronted with his statement Ex. PW3/A wherein, this fact was not found mentioned. The PW3 further stated that prior to recovery of motorcycle, accused Ashraf was arrested from Lal bagh, but he did not remember the address from where accused Ashraf was arrested.
As PW3 made contradictory statements in his examination in chief and cross examination, Ld. Addl. PP reexamined him and during his reexamination, he was questioned as under : Q.1. In your examination in chief, you have stated that you stopped your motorcycle and started talking with your friend, while S. C No. 14/11 : State vs. Parveen etc. : 11/38 12 in cross examination conducted on behalf of prosecution, you have stated that when you reached near Shiv mandir MCD colony on motorcycle, four boys stopped you. Which of these version is correct?
Ans. The version that I stopped my motorcycle and started talking with my friend, is correct.
Q.2 In your examination in chief, you have stated that you both ran away from there after leaving your motorcycle as you were scared and while in cross examination conducted on behalf of prosecution, you have stated that aforesaid four boys had run away from there alongwith your motorcycle.
Which of these version is correct?
Ans. The version that we both ran away from there after leaving our motorcycle as we were scared, is correct.
6. The PW4, Ct. Subhash Kumar is photographer of mobile crime team and he deposed that on 06.11.2010, he along with I/C, crime team/PW5 SI M.D. Meena went GTK Road in front of M2K block andin front of G116, GTK Industrial Area Building, where they found one motorcycle in burnt condition and he took seven S. C No. 14/11 : State vs. Parveen etc. : 12/38 13 photographs of the spot from his digital camera. He proved the said photographs as Ex. PW4/A1 to A7 and CD of the said photographs as Ex. PW4/B. During his crossexamination, PW4 deposed that apart from the members of crime team, IO and 2/3 police officials, and 34 public persons were also present at the spot.
7. The PW5, SI Matadin, Incharge of Mobile Crime Team, North West Distt. Pitam Pura, deposed that on 06.11.2010, on receipt of wireless message from Distt. Control Room, he along with photographer/PW4 Ct. Subhash and other staff reached at the spot i.e. i.e. GTK Road, Azadpur Industrial Area, in front of factory no. GI16, Delhi, where one motorcycle was found lying in burnt condition without its visible registration number and the Chasis number was also not decipherable due to burnt condition of the motorcycle and that the photographs of the said motorcycle were taken by the photographer on his directions. He further stated that he inspected the spot, prepared a detailed report Ex. PW5/A and handed it over to PW8 SI Anil Kumar.
During crossexamination by the learned defence counsels, PW5 deposed that he was not given the copy of the RC of the vehicle by anyone.
S. C No. 14/11 : State vs. Parveen etc. : 13/38 14
8. The PW6 Joginder, is the brother of complainant/PW3 and he deposed that he had returned home at about 12.30 mid night on the night of Deewali in the year 2010, he did not remember the exact date and month of the incident, and that he did not find his motorcycle parked on patri outside his house, where he had parked it, and that when, despite search, he did not find his bike, he made call at 100 number about his missing bike at around 1.30/1.40 am and that at about 2.15 am, PCR officials as well as staff from the local PS reached his house. He further stated that in the morning, his younger brother/PW3 Devender Singh Bisht told him that he along with his friend Sanjay Singh Rawat had taken his motorcycle in the evening and had gone to Model Town to do some purchase and that thereafter, they had come towards Shiv Mandir and were talking to each other there, when three/four persons came there and snatched the motorcycle by showing them kattas and that his brother/PW3 also told him that he could identify one of the accused persons, as uncle of said accused was doing work of beating drums and that PW6 advised his brother to go to PS and tell the police about it and thereafter, he went to Ramprashth, UP and returned in the evening at about 8.00/8.15 pm. The PW6 further stated that at about 9.30 pm/10.00 pm, his brother gave him a call and told him that police had apprehended some accused persons at Shiv Mandir and PW3 asked him to reach there and that accordingly, he went there and found that police officials along with 2/3 accused persons and his younger brother were present there at that time. The PW6 failed to S. C No. 14/11 : State vs. Parveen etc. : 14/38 15 tell the names of the accused persons. He further stated that the police had already searched for his bike and found it in burnt condition and that his bike had been taken to PS by the police officials and he identified the same on the next day, when he visited the PS. During crossexamination, PW6 stated that normally, he used to park his motorcycle inside his house. He volunteered to state that since it was Deewali day and children wanted to burn crackers, he had parked it outside the house on patri. He further stated that there were only two male members in his house i.e. he and his younger brother, who could drive bike and that he had lastly seen his bike at about 9.30 pm, when he had parked it on the patri and that he had left the keys of the bike at his house, when he left. During his further crossexamination, the PW6 stated that he was not knowing that his brother had taken his bike and came to know about it only in the morning, when PW3 told him. He also stated that when he returned home at about 12.30 mid night and did not find his bike, he had inquired about its whereabouts from all his family members including his younger brother and that at that time, his younger brother/PW3 told him that he was not aware of the whereabouts of his said motorcycle. He further stated that when police officials from PCR and local police came to his residence, pursuant to his call at 100 number, they made inquiries from his family members including his brother about his bike and that his complaint was recorded at that time only. He further stated that PW3 S. C No. 14/11 : State vs. Parveen etc. : 15/38 16 told him at about 6.30/7.00 am that he had taken his bike and that he did not go to the place from where the motorcycle was recovered and he could identify his motorcycle despite the fact that it was badly burnt from its chasis number as well as welding of its broken silencer, which he had got repaired.
9. The PW7 Sanjay Singh Rawat, a friend of PW3 was put forth by the prosecution as an eye witness to the incident as he was accompanying PW3 at the relevant date and time of incident. The PW7 stated that 06.11.2010, he had come to Azadpur to meet his friend Devender Singh Bisht and to give him sweets on occasion of Diwali Festival and remained there till 10.30 pm and that when he expressed his desire to leave, his friend/PW3 told him that he would drop him at Bus Stand on the motorcycle, from where he would get bus for his home and that thereafter they reached bus stand on motorcycle of his friend Devender and there despite waiting for long time, he did not get bus. He further stated that as it was getting late, PW3 Devender offered him to stay back at his house on that night and that they started back for Devender's House and that on the way, they stopped at Shiv Mandir and started talking there. The PW7 further stated that in the meantime, four boys came there and asked them, "Tumahre pass kaya hai" and "Jo tumahre pass hai, yanhi chhod do" and that one of them took out a Katta and pointed towards them, on this, they (PW3 and PW7) got scared and after a S. C No. 14/11 : State vs. Parveen etc. : 16/38 17 "Dhaka Mukki", he and PW3 Devender escaped from the spot and returned to Devender's house and at that time, the accused took away their bike. The PW7 further clarified that by "Dhaka Mukki", he meant that when the accused had pointed out Katta towards them, he and PW3 pushed him.
The PW7 further stated that in the house, they did not disclose about the above said incident to anyone as they were afraid that Devender's elder brother/PW6 would scold them for going out at such late hour at night and that in the morning, when PW6 Joginder Singh asked them about whereabouts of the Bike, they told him about the incident and he (PW7) told PW6 that he could identify one of the accused as he had been residing in his locality in vicinity of his house and that thereafter, he and PW3 went in search of the said accused. He further stated that at about 4.30/5.00 PM, while they were searching for accused near Hans Cinema, they found accused Praveen roaming around in the colony of Hans Cinema and they caught hold of accused Praveen. He further stated that at that time, PW8 SI Anil Kumar along with one Constable were also passing through that way and that they stopped him and told him how the accused had snatched their motorcycle on the night before. The PW7 further deposed about the apprehension, arrest and personal search of the accused Praveen and about the disclosure statement made by the accused Parveen. He further stated about apprehension of accused Ashraf at the pointing out of accused Parveen ; arrest and S. C No. 14/11 : State vs. Parveen etc. : 17/38 18 personal search of the accused Ashraf and about the disclosure statement made by accused Ashraf. He further stated that thereafter both the accused persons led them to under construction building of M2K, Victoria Garden, and pointed out the motorcycle which was lying there in burnt condition vide pointing out memo Ex. PW3/F. He then deposed that the police officials asked them to identify the burnt motorcycle, but since it was in burnt condition, they could not identify it and that thereafter, its chassis and engine number were compared by the police with the RC and it was found to be the same motorcycle and that thereafter, the motorcycle was taken into possession vide seizure memo Ex. PW3/E. The PW7 further deposed about visit and inspection of the spot by crime team and about pointing out of the spot of incident at Shiv Mandir by accused persons. He further stated that IO had also prepared the site plan Ex. PW3/M of the place of recovery of motorcycle. The PW7 identified the accused persons as well as the burnt motorcycle as Ex. P1.
The PW7 was crossexamined at length by the learned defence counsels and during the said crossexamination, he stated that he was not knowing accused Parveen prior to the incident, but had seen him in his locality as he used to come to play drum (dhol). He further deposed that he was staying at Azadpur prior to the incident, but at the time of incident, he was staying at Rohini in connection with his job. He also stated that he had seen accused one or two year prior to the incident, when he had S. C No. 14/11 : State vs. Parveen etc. : 18/38 19 come to play Dhol in Dushara Function. He further stated that as on the date of incident, his family was staying in Azadpur MCD Colony but clarified that he was staying with his sister in Rohini as he was unmarried.
During his further crossexamination, PW7 stated that he had seen the person who took the motorcycle but he could not tell, which of the accused persons had taken the same as all of them were together and that he was not sure if number of accused persons was three or four. He further stated that he and PW3/Devender returned back to spot after some time i.e. after about half an hour and that during the intervening period of half an hour, he and PW3 did not go home and that he and Devender reached his home after midnight on the day of the incident. He further stated that he did not know, who had opened the door on their return back as Devender himself had gone to get the door of his house opened and had called him inside later. He further stated that he left Devender's house at about 8 / 9:00 AM in the morning and that Devender did not tell his brother about the snatching of motorcycle at night, in his presence. He further stated that he did not know what time Devender told his brother about the incident as he had left at about 8 / 9:00 AM, however, till the time, he remained in Devender's house, he did not tell his brother about the motorcycle. He further stated that he and PW3 Devender had gone in search of accused persons and that PW6 Joginder, brother of Devender, never asked him to accompany him to Police Station. The PW7 further stated that PW3 Devender did not inform him that S. C No. 14/11 : State vs. Parveen etc. : 19/38 20 his brother had filed a complaint with the Police nor did he ask him to accompany him to the Police Station. He also stated that accused Praveen was seen by PW3 Devender in the first instance and thereafter both of them apprehended Praveen together at about 4 / 4:30 Noon and that police officials reached that place simultaneously and that the accused Praveen was arrested by the two Police officials i.e. PW8 SI Anil Kumar and PW2 Ct. Vijay Kumar. During further cross examination, the PW7 stated that RC of motorcycle was at the house of PW3 Devender and he had asked for it by giving telephone call to his house, however, PW7 showed his lack of awareness about the name of the person, who had brought the RC of the motorcycle at M2K, Victoria Garden.
During further crossexamination, the PW7 stated that he had told the Police in his statement u/s.161 CrPC that accused had told them "Tumhare Paas Kaya Hai" and "Jo Tumhare Paas Hai, Yahi Chhod Do" and on this point, he was confronted with his statement u/s 161 Cr.P.C. Ex.PW7/A, where "Tumahare Paas Jo Kuch Hai, Nikaal Do" was found mentioned. He further stated that he had stated in his statement u/s. 161 Cr.P.C. that he and PW3 had not disclosed about the incident to anyone as they were afraid that Devender's brother would scold them, and that they informed Devender's brother Joginder in the morning and that when Joginder asked them about the whereabouts of the bike, he told PW6 that he could identify one of the accused as he had seen him residing in his locality in vicinity of his house. On this point, he S. C No. 14/11 : State vs. Parveen etc. : 20/38 21 was confronted with statement Ex.PW7/A, where this fact was not found mentioned. He further stated that after arrest of accused Parveen and Ashraf, police officials took them to Victoria Garden and that they remained at M2K, Victoria Garden for about 3045 minutes and that Police did writing work at M2K.
10. The PW8 SI Anil Kumar was the investigating officer of the present case and he deposed about the various investigation conducted by him in the present case. He proved the rukka as Ex. PW8/A, which was prepared by him on the basis of statement of PW3. He also deposed about apprehension and arrest of both the accused and recovery of the burnt motorcycle at the instance of accused persons. He further stated that he compared the chassis number and engine number of burnt motorcycle from the RC after taking the same from complainant/PW3 Devender and found the chassis number and engine number to be same.
The PW8 was crossexamined at length by the learned defence counsels and during the said crossexamination, PW8 stated that he had received DD No.12A and same was with regard to theft of motorcycle. He termed it correct that informer of DD No.12A was PW6 Joginder and that he had not placed the said DD on record. The PW8 also deposed that on receipt of said DD, he went to the house of Joginder and made inquiries from him and that Joginder refused to give any written statement as he wanted to search for his motorcycle on his own. He further stated that except for S. C No. 14/11 : State vs. Parveen etc. : 21/38 22 Joginder, he did not make any inquiry from other members of his family and that except for the oral inquiry, he did not make any effort to verify the contents of DD No. 12A and that at that time he did not take the RC of the motorcycle from Joginder. During his further crossexamination, PW8 deposed that he was given original RC of the motorcycle by PW3 Devender at the place where the said motorcycle was found in burnt condition. He termed it correct that when he saw the motorcycle, its number plate was burnt and was not visible. He further stated that the motorcycle was brought to spot as well as to the PS, from the place of recovery, in a riksha rehri and that the said rickshaw was being peddled by Sanjay Singh and that the said rickshaw was found parked in an abandoned condition. He further termed it correct that Ex.PW3/E, the recovery memo of the burnt motorcycle, was not signed by both the accused persons, but he denied that the same was not signed because the motorcycle was not recovered at the instance and in presence of the accused persons.
11. The PW2 Ct. Vijay Kumar remained in the investigation with PW8 and he deposed almost on the same line as of PW8.
During his crossexamination, PW2 stated that on inquiry, PW6 Joginder told them that motorcycle was stolen from Shiv Mandir. He further stated that he did not remember the house number of accused Asraf, but his house was situated near Noori S. C No. 14/11 : State vs. Parveen etc. : 22/38 23 Masjit and that it was a pucca two storied house, but he did not enter the house of accused Ashraf. He further stated that RC of motorcycle was with Devender and that IO/PW8 had collected the RC of the said motorcycle from Devender and prepared the pointing out memo in his presence. He further stated that at the place of occurrence, statement of Joginder was recorded and that Joginder was called to that place by the IO from his residence and that Joginder identified the place, from where the motorcycle was stolen.
12. After closing of prosecution evidence, statements of accused persons were recorded u/s 313 Cr.P.C, wherein they denied the allegations made against them by the prosecution and stated that they are innocent and had been falsely implicated in the case by the police at the instance of complainant and that they had nothing to do with the alleged offence. They further stated that complainant and his friend have deposed falsely against them as the complainant wanted to take revenge of an old quarrel. Both the accused did not lead evidence in their defence.
13. Arguments have been addressed by Ms. Urmila Yadav, learned Legal Aid counsel for the accused persons as well as learned Additional PP for the State.
14. Learned Additional PP has contended that in view of the testimony of PW3 and S. C No. 14/11 : State vs. Parveen etc. : 23/38 24 further testimony of PW7, prosecution has succeeded in proving that both the accused persons, along with their accomplices, had robbed PW3 of a motorcycle on the gun point. She further submitted that though, there are some minor omissions and contradictions in the testimonies of the witnesses, but same does not make testimony of those witnesses unreliable and as such, prosecution has successfully proved the guilt of the accused persons beyond reasonable doubt.
15. Learned defence counsel/LAC for both the accused persons has contended that accused persons are innocent and have been falsely implicated in the case. She has further contended that the drama of robbery of motorcycle had been staged by complainant along with his brother Joginder to obtain Insurance claim and that accused Parveen was falsely implicated in the case as he chanced to go to park, where complainant was gambling along with his 810 friends and that accused Asraf had intervened to rescue accused Parveen at that time and that due to this animosity, accused Parveen and Asraf were falsely implicated in the present case. Ld. LAC has further pointed out towards various contradictions in the statements of the PW3 Devender, PW6 Joginder and PW7 Sanjay Singh to contend that said contradictions are fatal to the prosecution case and in view of the said contradictions, the prosecution has completely failed to prove its case against the accused persons and it is prayed that both the accused be acquitted for the charged offence.
S. C No. 14/11 : State vs. Parveen etc. : 24/38 25
16. I have carefully considered the submissions made by Ld. Addl. PP for State as well as Ld. defence counsels/LAC for the accused persons and have carefully gone through the record of the case.
17. In the present case, accused are alleged to have robbed Devender Singh Bisht and Sanjay Singh Rawat of motorcycle bearing no. DL8SAC6827 on 06.11.2010 at about 1.00 am, along with their coaccused Jitender and Bunty, both of whom could not be apprehended. Accused Parveen is further stated to have been armed with a deadly weapon namely country made pistol at the time of commission of the said robbery. Further, it is alleged that after robbing the said motorcycle, the accused Parveen and Asraf along with their coaccused Jitender and Bunty (since not arrested) burnt the aforesaid motorcycle with intention to cause disappearance of evidence of commission of offence and thereby to screen themselves from the offence committed by them.
18. In order to prove its case the prosecution has examined complainant Devender Singh as PW3, his friend Sanjay Singh Rawat as PW7 and Jogender, brother of complainant as PW6. Testimonies of all these three material witnesses have been reproduced in details hereinabove.
S. C No. 14/11 : State vs. Parveen etc. : 25/38 26
19. In the present case, contents of DD no. 12 regarding first call made by Sh. Jogender to the police are very material, however, for some reasons best known to the IO, copy of said DD has not been placed on record. Further, there is no explanation forthcoming from the complainant as to why after having made call regarding missing of his motorcycle, he delayed to give statement for registration of the FIR in the case. This is against the normal course of human conduct, since owner of any vehicle would want prompt action from the police for recovery of his stolen vehicle/motorcycle and it is well known that without registration of the FIR, the police would not take further action in the matter.
20. Further from the statement of PW6, it appears that he had parked his motorcycle outside his house and has lastly seen at about 9.30 pm, but when, he returned home at about 12.30 mid night, on the night of Diwali in the year 2010, he did not find his motorcycle, which was parked on patri outside his house and he then made a call at 100 at about 1.30/1.40 am and by 2.15 am, PCR officials as well as staff from local police station had reached his house. It is further brought out from the statement of PW6 that he was informed by his brother Devender Singh in the morning that he and his friend Sanjay Singh had taken motorcycle of PW6 to market for some purchase and had been robbed of the said motorcycle by 3/4 persons at Shiv S. C No. 14/11 : State vs. Parveen etc. : 26/38 27 Mandir. The PW6 claims that his younger brother (PW3 Devender) also told him that he could identify one of the accused person, as the uncle of the said accused was doing work of beating drums and that PW6 told his brother to go to PS, while he himself went to Rama Prashtha, UP and returned back in the evening at about 8.00/8.15 pm and at about 9.30 pm/10.00 PM his brother gave a call and told him that police had apprehended some persons at Shiv Mandir and asked PW6 to reach there. When PW6 reached said place, he found police officials with 2/3 accused persons and his younger brother. He also stated that police had already searched for his motorcycle and found it in burnt condition and that he identified his motorcycle at PS on the next day. In his crossexamination, PW6 specifically stated that when he returned home and did not his motorcycle, he inquired about its whereabouts from all his family members, including his younger brother and further the police officials from PCR and local police, who came to his residence pursuant to his call at 100 number, had also made inquiries from his family members including his brother about his bike. The PW6 admitted that he had not visited the place, from where the motorcycle was recovered.
21. In contradiction, PW2 Ct. Vijay Kumar, who had joined the investigations of the case with the IO, has stated that when they reached house of Joginder on receiving DD no. 12, they met Joginder outside his house and he told them that his motorcycle S. C No. 14/11 : State vs. Parveen etc. : 27/38 28 was stolen from Shiv Mandir. He further deposed that they had remained outside house of Joginder for about one hour and that during that period, family member of Joginder did not come out and that IO did not inquire from any one except Joginder on that night and that no writing work was done by the IO at the house of Joginder at that time. During his further crossexamination, PW2 stated that the burnt motorcycle was found on road in front of factory no. G1/16 and from there, it was taken to the place from where, it was stolen i.e. Shiv Mandir, MCD Colony, Model Town on a rehri and at said place, Joginder was called and his statement was recorded and that Joginder identified the place from where, his motorcycle was stolen. Thus, there is a major contradiction in the testimony of PW6 Joginder and PW2 Ct. Vijay regarding the place, from where the motorcycle in question was stolen and the person who pointed out place from where the said motorcycle was stolen and these contradictions do not stand explained by the prosecution.
22. Further, according to PW3 Devender Singh, on the day of incident he had gone to drop his friend Sanjay Singh at bus stop opposite metro station, Azadpur, but since his friend could not get a bus, he asked him to accompany him to his house. It is pertinent to note that PW6 does not mention about presence of Sanjay Singh Rawat, friend of his brother, at his house on the day of incident, or at the spot i.e. Shiv Mandir or thereafter. As per PW8 SI Anil Kumar, IO of the case, the case property S. C No. 14/11 : State vs. Parveen etc. : 28/38 29 i.e. burnt motorcycle was brought to the spot as well as to the PS, from the place of recovery, in a riksha rehri, which was peddled by PW7 Sanjay Singh. In these circumstances, omission on the part of PW6 Joginder to mention about presence of Sanjay Singh raises considerable doubt regarding the case put forth by the prosecution.
23. The PW3 further deposed that when they were returning to their house at about 12.00 am/1.00 am, he stopped motorcycle near Shiv Mandir and they started talking to each other and in the meantime, 4/5 persons came there and asked them "jo kuch hai tumahre pass, nikal do" and at that time, accused Parveen showed him a countrymade pistol kept by him in a dub of his wearing pant, by removing his shirt upwards and that accsued Parveen reiterated that "jo kuch hai tumahre pass, nikal do" and that they both ran away from there leaving the motorcycle as they were scared and thereafter, they went to the house of PW3. They did not inform about being robbed of the motorcycle to the brother and other family members of PW3, out of fear. The brother of PW3 made complaint to the police regarding missing of motorcycle on the same night and in the morning, PW3 narrated all the facts to his brother. He and his friend Sanjay also went in search of the motorcycle in the morning. The PW3 then deposed about the manner, in which, accused Parveen was apprehended and handed over to the police and about recovery of a burnt motorcycle at the instance of accused Parveen S. C No. 14/11 : State vs. Parveen etc. : 29/38 30 from an under construction building namely M2K1, where he had left it after setting it on fire. The PW3 further deposed about preparing of pointing out memo of the place of occurrence at the instance of accused Parveen and about arrest of accused Ashraf from Lal Bagh. This witness was crossexamined at length by the Ld. Addl. PP regarding the manner of arrest of accused Ashraf, however, he denied that accused Parveen had led them to the house of accused Ashraf, where on identification by PW3 and his friend Sanjay Singh, accused Ashraf was apprehended. The PW3 also denied that the site plan of the place of occurrence was prepared by the police at his instance. During his crossexamination, PW3 was asked as to the number of his assailants, however, he could not state, if there were 4 or 5 persons. He also stated that he was not knowing accused Parveen and the fact that he was resident of their locality, prior to his arrest. This is in contradiction of the statement made by PW6, who stated that he had been told by PW3 Devender that he could identify one of the accused persons as his uncle was doing work of beating drums. During his further crossexamination, PW3 stated that they had run away from the spot leaving the motorcycle as they were scared and they had returned back in the morning on the next day. He termed it correct that he did not know, who had taken away the motorcycle from the spot. As regards his statement to the police, the complainant stated that his statement was recorded in the PS on the next day of Diwali in the evening. In contradiction, IO PW8 SI Anil Kumar and PW3 Ct. Vijay stated that statement of S. C No. 14/11 : State vs. Parveen etc. : 30/38 31 complainant, Ex. PW3/A, had been recorded at Hans Cinema i.e the place from where accused Parveen had been apprehended by PW3 Devender and PW7 Sanjay Singh and was further handed over to PW8 and PW3. The PW3 further stated that they had gone to the place, where motorcycle was lying in burnt condition in evening in a govt. vehicle i.e. Qualis and that at that time, PW3, his brother Joginder, his friend Sanjay, police officials and accused had gone to the said spot. On the other hand, PW6 Joginder claims that he never went to the place from where the motorcycle was recovered.
24. The PW3 denied that any document was prepared by the IO at the place of arrest of accused Parveen, he rather, stated that accused Parveen was interrogated after they reached police station and thereafter, FIR was registered and proceedings were conducted and in the evening, he along with police officials and accused persons went to the place of recovery of the motorcycle. Considering the contradiction made by PW3 in his examinationinchief and crossexamination, PW3 was reexamined by ld. Addl. PP and during said reexamination, he stated that the version that he had stopped his motorcycle and started talking to his friend was correct and what he has stated in his crossexamination "When he reached near Shiv Mandir, MCD Colony, on motorcycle, he was stopped by four boys" was not correct. He also stated that the fact that they both ran away from the spot after leaving motorcycle, as they were S. C No. 14/11 : State vs. Parveen etc. : 31/38 32 scared was correct and the fact that the four boys had run away from the spot, with their motorcycle as stated by him in his crossexamination was not correct.
25. The statement of PW7 Sh. Sanjay Singh Rawat brings out further contradiction in the prosecution case. As far as the version that PW3 had gone to drop PW7 to the bus stop, remains unchanged, however, thereafter, there are several contradictions. The PW7 stated that while they stopped to talk outside Shiv Mandir, four boys came there and told them, "jo tumahre pass hai, yanhi chhod do" and that one of them, took out a katta and pointed towards them. The PW7 further stated that he and Devender got scared and that there was dhakamukki between them. The PW7 clarified his statement further to state that when accused pointed katta towards him and PW3, they pushed him and returnd to Devender's house.
26. Coming to the use of alleged country made pistol in the commission of offence by accused Parveen, alleged country made pistol was neither recovered from the possession of accused Parveen, nor was it shown to the material witnesses i.e. PW3 and PW7, nor PW3 given any description of knife in his statement made before the court and so it cannot be concluded that the country made pistol in question was used in commission of offence in the present case.
S. C No. 14/11 : State vs. Parveen etc. : 32/38
33
27. Having this opinion, I am fortified by the judgment titled as "
Samiuddin @ Chhotu Vs. State of NCT Delhi ( cited as cited as 2010 (4) JCC 3091)", it has been laid down by the Hon'ble High Court of Delhi that : " Even in the present case, it is an undisputed fact that the knife in question was not recovered , much less produced in the course of trial. In such circumstances, this court is inclined to agree with the submissions of the counsel for the appellant that the appellant could be sentenced under section 392 IPC alone and the offence does not fall within the ambit of section397 IPC ."
28. Further, in the case titled as "Mohd. Dulal @ Fazal Karim Vs. State (cited as cited as 2010 (3) JCC 1724)", it has also been held by the Hon'ble High Court of Delhi that if the weapon, which the appellant is alleged to have used in the incident, had not been recovered during investigation, section397 IPC would not get attracted.
29. In the present case also, no weapon of offence has been recovered and in the absence thereof, the provisions of section397 IPC are not attracted as has S. C No. 14/11 : State vs. Parveen etc. : 33/38 34 been laid down by the Hon'ble High Court of Delhi in aforesaid cases cited as 2010 (4) JCC 3091 & 2010 (3) JCC 1724 .
30. Apart from the above, in the case titled as " Adesh Kumar and etc. Vs. The State" (reported as 1986 CRL.L.J. 233), it has been laid down by the Hon'ble High Court of Delhi that: " The weapon with which Jagdish appellant inflicted injury on the person of Dharam Singh PW was not recovered.
Dharam Singh did not state anything in his statement as PW5 as to what kind of knife was that which was used by Jagdish appellant, nor about the size of its blade etc. Under the circumstances it could not be held as proved on the record that the weapon used by Jagdish appellant in the commission of the robbery was a deadly 'weapon'. The trial Court was thus in error in convicting the appellant under S. 397 IPC."
31. In the instant case also, neither PW3 Devender Singh Bisht nor PW7 Sanjay Singh have given description of knifethe alleged weapon of offence nor was any such weapon recovered at the instance of accused Praveen or shown complainant/PW3 Devender and his friend/PW7 Sanjay. The PW7 also stated that when they informed S. C No. 14/11 : State vs. Parveen etc. : 34/38 35 Joginder Singh, PW3's brother about the motorcycle in the morning, he asked them about the whereabouts of the said motorcycle and he (PW7) told him that he could identify one of the accused as he had been residing in his locality in vicinity of his house. He also deposed about the arrest of accused Parveen and thereafter about the arrest of accused Ashraf and recovery of motorcycle from a underconstruction building at M2K, Victoria Garden. He also stated that police officials asked them to identify the burnt motorcycle, but since it was in burnt condition, they could not identify it and that thereafter chassis and engine number were compared by the police with RC and found that it was the same motorcycle. The PW7 also identified the motorcycle as Ex. P1 in the court at the time of his deposition.
32. From the crossexamination of PW7, it is brought out that on the day of incident, his family was staying in Azadpur, MCD Colony, while he himself claimed that at that time, he was staying at Rohini with his sister in connection with his job. During his further crossexamination, PW7 stated that he had seen the persons, who had taken his motorcycle, but he could not stated, which of the accused had taken the same. He clarified to state that it was so, as they all were together, but he was not certain, if the number of the accused persons, were three or four. He further added that he (PW7) and PW3 Devender returned back to the spot after after some time i.e. after about half an hour and during that intervening period, he did not go home S. C No. 14/11 : State vs. Parveen etc. : 35/38 36 and that they reached house of Devender after mid night. The PW7 could not state as to who had opened the door of the house, when they reached there and claimed that his friend (PW3) had gone first, got the door opened and then called him inside the house.
33. The PW7 also stated that he had left PW3's house at about 8/9 A.M in the morning and till such time, he remained at Devender's house, Devender did not tell his brother about the snatching of motorcycle at night. He also stated that Devender had not informed him that his brother had filed a complaint with the police. As regards, the RC of the motorcycle, PW7 stated that RC of the motorcycle was at house of Devender and he had asked for it by giving telephone call, but he did not know as to who had brought R.C of the motorcycle to Victoria Garden.
34. In contradiction, the PW5, SI Matadin, in his examinationinchief deposed that on being requisitioned, he along with photographer Ct. Subhash and other staff reached at the spot i.e. GTK Road, Azadpur, Industrial Area, in front of factory no. GI16, Delhi, where one motorcycle was found lying in burnt condition without its visible registration number and the chassis number was also not decipherable due to burnt condition of the motorcycle. The PW5 however does not clarify, if the engine number of the motorcycle was visible and how and by what means, he ascertained S. C No. 14/11 : State vs. Parveen etc. : 36/38 37 this fact and mentioned the chassis number as well as engine number of the motorcycle in his report Ex. PW5/A, if the chassis number was not decipherable.
35. Further, as per PW6 Joginder not only he but PCR officials and police officials had also made inquiry from his family member including his brother about his missing motorcycle, when they reached the house of PW6 Joginder, pursuant to his call at 100 number. However, neither PW3 Devender Singh, nor PW7 Sanjay Singh mentioned about meeting any police officials at night. Even, PW8 SI Anil Kumar and PW2 Ct. Vijay Kumar, who went pursuant to call made by PW6 Joginder at 100 number, do not state anything about meeting other family members of PW6 Joginder at that time.
36. Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that there are grave and serious contradictions in testimony of material witnesses examined by the prosecution and same cannot be relied upon to draw conclusion of guilt of accused persons. Accordingly, I acquit both the accused Parveen and Ashraf of charged offence by giving them benefit of doubt.
S. C No. 14/11 : State vs. Parveen etc. : 37/38 38 File be consigned to Record Room. (Announced in the open ) (Illa Rawat) (Court on 29.06.2013 Addl. Session Judge (NorthWest)01 Rohini/Delhi S. C No. 14/11 : State vs. Parveen etc. : 38/38