Delhi District Court
State vs . on 27 January, 2011
1
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE -II, OUTER DISTRICT
ROHINI COURTS : DELHI
IN RE : Sessions Case No. : 783/06
ID No. : 02404R0314782006
FIR No. : 84/06
P.S. : Kanjhawala
U/s : 392/397/34 IPC
Date of registration : 30-10-2006
Reserved for Judgment on: 06-01-2011
Judgment Announced on : 27-01-2011.
State
Vs.
Narender @ Nandan
S/o Satbir Singh
R/o Village Prahlad Pur Kidoli,
P.S. Kharkhoda,
District Sonepat Haryana.
JUDGMENT
1. Briefly stated the present case was registered on the statement of complainant Ishwar Dass S/o Sh. Ram Prasad who on 22-06-2006, at about 5:30 a.m was laying on a takhat at his dhaba at near Kali Mandir, Village Punjabkhod, Delhi. Three boys reached at his dhaba on a motorcycle from Kutubgarh side. One of those boys came to his dhaba and he asked his wife Smt. Shakuntala to give him a packet of cigarette make Gold Flake and he also handed over Rs. 50/ - to his wife. His wife Shakuntala gave cigarette packet and balance amount of Rs. 30/- to that boy. Thereafter that boy again returned the said packet of Contd....
2cigarette to his wife and asked her to give packet of Navy cut cigarette and he also gave Rs. 10 more for the same. After taking the cigarette that boy came back towards his motorcycle and thereafter he lighted one cigarette. The remaining two boys asked from the complainant to give them an empty bottle as they wanted to go to ease themselves. Complainant gave the bottle filled with water to those two boys. Thereafter, all the three boys went towards fields to ease themselves.
2. In meantime one boy came back and after 5 / 6 minutes those two boys also came back. Out of those three boys two boys pointed a country made revolver on the complainant and asked him to hand over the key of his car, he told those boys that he is not having the key. Thereafter one of the two boys put his hand in pocket of kurta of the complainant which he was wearing and took out the key of his car and proceeded towards the car. The third boy started the motorcycle towards the direction of Kutubagarh side. In the meantime complainant asked his wife about the mobile phone then both the said boys threatened them and thereafter they drove Maruti car No. D-8C-H3380 of metallic green colour towards Kugbagarh side and went away.
3. F.I.R. bearing No. 84/06 U/s 392/397/34 IPC was registered against the accused persons and investigation went underway. Accused were arrested. After completion of investigation final report U/s 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.
Contd....
34. On 24/05/2008, a charge U/s 411 IPC was framed against accused Randip Singh who has already been discharged in this case by my Ld. Predecessor vide order dated 07-07-2009) and a separate charge U/s 392/34 IPC read with section 397 IPC was framed against accused Narender @ Nanda to which he pleaded not guilty and claimed trial.
5. In order to prove the guilt of the accused persons, the prosecution examined as many as 12 witnesses.
6. PW 1 Smt. Shakuntala is the wife of complainant Ishwar Dass. This witness did not support the case of the prosecution and turned hostile. In her examination in chief she deposed that the accused was not the person who came at her dhaba on motorcycle and he was not the assailant. They were some other persons.
7. This witness was cross examined by the Ld. APP for the State but nothing material could be extracted from her cross examination. However, in her cross examination Ld. APP for the state put a question to her that : Whether it is correct that out of the said three boys who had robbed you and pointed katta, one of the accused was Narender @ Nande, as pointed out in Court to you by me. What have you to say? To which she replied that "Baat To Theek He Hai". (It is correct). She also Voluntarily said since two years elapsed "Khyal Mein Itna Nahin Aata Hai."(memories have fade away owing to time gap.)
8. PW 2 H.C. Rajinder is the duty officer. He recorded the FIR of the present case and proved on record the carbon copy of Contd....
4the FIR as Ex. PW 2/A.
9. PW 3 is Kuldeep Singh, L.D.C. from the office of State Transport Authority, Ashok Vihar, Delhi. He deposed that as per their record Car Maruti 800 bearing No. DL-8C-H-3380 is in the name of Sh. Ishwar Dass and he proved on record the copy of the registration certificate as Ex. PW 3/A.
10. PW 4 is SI Ram Rattan. He proved on record the photocopy of FIR No. 141/2006 recorded by him as Ex. PW 4/A as he was working as MHC(M) at P.S. Sity Gohana at that time.
11. PW 5 Ishwar Dass is the complainant. He deposed on the lines of his statement given to the police on the basis of which the present case was registered. His testimony would be discussed in the later part of the judgment.
12. PW 6 SI Azad Singh is the Incharge Police Post, Jharot P.S. Kharkhoda, District Sonipat, Haryana who had arrested accused Randeep who had already been discharged in this case. He also arrested accused Narender @ Nandan. This witness deposed that on 8-7-2006 he was posted at PS City Guhana as ASI and on that day he received a secret information through a secret informer and on the basis of which he apprehended accused Randeep (already discharged in this case) alongwith the Car No. DL 8C H 3380. He further deposed that on the search of the accused one loaded country made pistol 315 bore was recovered from his possession. Accused Randeep was interrogated by him who told that the said car mentioned above was robbed from one Dhaba Wala near Qutabgarh, Delhi and he Contd....
5also disclosed the name of their absconding associates as Rakesh, Narender and Ranbir. PW 6 took into possesison the maruti car bearing registration No. DL 8C H 3380 and prepared the memo in this regard. On the basis of the above facts he prepared a rukka and sent to PS city Guhana throiugh HC Harinder Singh on the basis of which case FIR No. 141 U/s 398/401/412 IPC and 25 Arms Act was registered against accused.
13. PW 6 also deposed that he searched for remaining accused persons and on 21-08-2006, accused Narender @ Nandan was arrested by him at Rohtak Court Complex while he was being produced in Rohtak Court in other case. Accused Narender made disclosure statement regarding his involvement in the present case FI No. 84/06 PS Kanjhawala. He gave information in this regard at PS Kanjhawala on wireless message and IO of the case came to met him at PS City Guhana. The name of IO he could not tell but deposed that perhaps IO was Inspector Baljeet Singh but he was not sure. He handed over the photocopies of disclosure statements of accused Narender @ Nandan and accused Randeep, copy of seizure memo of Maruti Car to the IO. He proved on record disclosure statement of accused Narender @ Nandan as Ex. PW 6/A. He also proved on record photocopy of disclosure statement of accused Randeep as Ex. PW 6/B. He also proved on record photocopy of seizure memo of the car as Ex. PW 6/C.
14. PW 7 is Sh. Rajesh Kumar, Ahlmad from the Court of Contd....
6Sh. Chander Has, Ld. Judicial Magistrate, Ist Class, Rohtak, Haryana. He produced the record of Crl. Case No. 523/06 tiled as State Vs. Narender @ Ninda bearing FIR No. 443/06 U/s 25 Arms Act, PS City, Rohtak. After seeing the photocopy of disclosure statement of accused Narender @ Ninda in the judicial file of the instant case he proved the same as Ex. PW 7/A. He also proved on record photocopy of seizure memo of country made pistol recovered form accused Narender as Ex. PW 7/B and photocopy of sketch of country made pistol as Ex. PW 7/C and also proved on record photocopy of personal search memo as Ex. PW 7/D.
15. PW 8 is H.C Subhash Kumar who on 22-6-2006 alongwith ASI Johar Singh PS Kanjhawala reached at the place of occurrence. ASI Johar singh recorded the statement of the complainant in his presence and prepared the ruqqa. PW 8 took the rukka to the police station for the registration of the case. After the registration of the case he came back to the spot and handed over the original rukka and copy of FIR to IO at the spot.
16. PW 9 ASI Jor Singh is the first IO of the case. He unfolded the sequence of investigation done by him. He proved on record DD No. 6 A which was marked to him as Ex. PW 9/A. He after reaching the place of occurrence recorded the statement of complainant Ex. PW 5/DB and prepared the rukka. He proved on record rukka as Ex. PW 9/B. He also prepared the site plan at the instance of complainant and proved the same as Ex. PW 9/C.
17. PW 10 is SI Ram Kishan, Incharge police post Arya Nagar, Contd....
7District Rohtak Haryana. He arrested accused Narender @ Nandan in FIR No. 443/06 U/s 25 Arms Act PS City Rohtak and interrogated him. Accused made a disclosure statement regarding his involvement in the present case. PW10 also gave information to PS Kanjhawala in this regard. He further deposed that SI Pooran Panth from PS Kanjhawala reached at out office in Rohtak and he handed over the photocopy of disclosure statement of accused Narender Ex. PW 7/A to him.
18. PW 11 ASI Jagbir Singh is also from PS City Gohana. He deposed that on 9-7-2006, ASI Azad Singh of PS City Gohana deposited 4 pullandas in sealed condition pertaining to DD No. 34 and case FIR No. 141/06 U/s 398/401/412 IPC and 25 Arms Act at PS City Gohana in the malkhana. He also deposited one Maruti Car No. DL 8-CH-3380 in the same case in the malkahna and entry in this regard was made at S. No. 62 by the then MHC Ram Mehar. He further deposed that as per their record the said car was released to superdar on 24-7-2006 as per the order of the Court and an entry was made in the regard in register No. 19. He proved on record the photocopy of relevant entry at serial No. 62 in register No. 19 as Ex. PW 11/A.
19. PW 12 Inspector Pooran Panth is the second IO of the case. He unfolded the sequence of investigation done by him. He arrested accused Randeep (already discharged) in this case. He also arrested accused Narender in the instant case and proved his arrest memo as Ex. PW 12/A. He also proved on record disclosure statement of accused Narender as Ex. PW 12/B. He Contd....
8also proved on record disclosure statement of accused Narender recorded by him on 7-9-2006 as Ex. PW 12/C. PW 12 prepared pointing out memo of place of occurrence and proved the same on record as Ex. PW 12/D. PW 12 also collected the copy of TIP proceedings, recorded the statements of witnesses U/s 161 Cr.P.C, completed the investigation, prepared the charge sheet and filed the same in the Court through SHO.
20. After the closing of the prosecution evidence statement of accused U/s 313 Cr.P.C. was recorded and incriminating evidence was put to him. Accused denied the same and stated that he is innocent and has been falsely implicated. No evidence in defence was led by the accused.
21. I have heard Ld. CPP for the state, Ld. counsel for the accused and have also gone through the records of the case.
22. It is submitted by the Ld. CPP that on the basis of the evidence recorded and the material available on record, the accused be convicted.
23. On the other hand, it is submitted by the Ld. counsel for the accused that he has been falsely implicated . It is further submitted that a case U/s 398/401/412/216 IPC and 25/54/59 Arms Act bearing FIR No. 141/06, P.S. Gohana was registered against the accused alongwith other accused persons. It is further urged that the case was registered for the same incident which had taken place in Delhi and for which the present FIR was registered. It is further urged by the counsel for the accused that in the above said case the accused has been acquitted by the Contd....
9Court of Addl. Sessions Judge, F.T.C. Sonepat. It is further submitted that the complainant Ishwar Singh was unable to identify the accused in the Sonepat Court but he had identified him in this Court as there was only one accused.
24. The material witnesses of this case are PW 1 and PW 5. According to PW 1 her husband i.e PW 5 Ishwar Dass was running a Dhaba at Punjab Khore and she used to sit with her husband. She was unable to tell the date of the incident but deposed that on the said date at about 5:35 / 5:45 a.m when they had opened their dhaba, 3 boys came on a motorcycle. However she has failed to identify all the three boys.
25. This witness was declared hostile by the Ld. APP and the following questions were put by the Ld. APP :
Q. by CPP : I put it to you whether it is correct that out of the said three boys who had robbed you and pointed katta, one of the accused was Narender @ Nanda, as pointed out in Court to you by me. What have you to say?
Ans. "Baat To Theek He Hai'.(It is correct). Vol. Said since two years elapsed 'Khyal Mein Itna Nahin Aata Hai".(Memories have fade away owing to time gap.)
26. This witness was cross examined by the counsel for the accused. In her cross examination she stated that she had not told the number of the motorcycle to the police on which the accused had come. She has also deposed in her cross examination that she died not tell the description of the clothes of the accused which they were wearing on the day of the incident.
Contd....
1027. The other relevant witness is PW 5. According to this witness on 22-06-2006, at about 5:30 a.m he was lying on a thakat at his dhaba when 3 boys came on a motorcycle. One of the by came to him and asked his wife to give a packet of cigarette make Gold Flake. His wife gave the said boy packet of Gold Flake and thereafter the said boy again returned and said he only wanted the packet of Navy Cut cigarette. His wife gave the said boy packet of navy cut cigarette in exchange. He further deposed that other two boys asked for empty bottle from him and he gave one bottle filled with water to those boys. Thereafter all the 3 boys went inside the fields. After about 15 minutes 3 boys again came to his dhaba and out of them one pushed the revolver inside his mouth and the other had oput the revolver at his forehead and asked him to hand over the keys of his car. One boy took the keys from the packet of the kurta of the complainant and they took his Maruti Car.
28. This witness identified the accused Narender as one of the 3 boys who had come at his dhaba and had put revolver on his forehead while demanding the keys of his car. But he failed to identify the other accused Randeep Singh (discharged by the predecessor of this Court).
29. This witness was cross examined by the counsel for the accused. In his cross examination he stated that his statement was recorded in the Sonepat Court in respect of the same occurrence and further stated that his statement was recorded in the Sonepat Court and accused Narender @ Nandan was also Contd....
11present there. He further stated in his cross examination that he had identified all the three accused persons in the Sonepat Court.
30. The certified copy of the judgment of the Sonepat Court was shown to this witness and this witness identified his signatures at point A and B and the said judgment was exhibited as Ex. PW 5/DA. This witness has himself improved in his examination in chief in the Court and was duly confronted with his statement U/s 161 Cr.P.C which is Ex. PW 5/DB.
31. The other relevant witness is PW 6 SI Azad Singh, in- charge police post Jharot. He deposed that on 8-7-2006 he was posted at PS City Gohana and on that day, he received a secret information that 4 persons were standing near canal at Baroda Road, Gohana with a stolen Maruti Car No. DL 8CH 3380 and were planning to commit robbery. He reached the spot and found 4 persons near the car. Only accused Randeep (who has been discharged) in this case was apprehended and on his search one loaded country made pistol was recovered from his possession. Remaining three accused persons had managed to escape and they were lateron arrested on the basis of the disclosure statement made by accused Randeep (since discharged in this case). On the basis of these facts PW 6 prepared the ruqqa and case U/s 398/401/412 IPC and 25 Arms Act was registered against the accused persons.
32. According to this witness on 21-08-2006, accused Narender @ Nandan was arrested and he made a disclosure statement regarding his involvement in the present case i.e. In Contd....
12the case FIR No. 84/06, P.S. Kanjhawala. IO of the present case i.e Inspector Baljeet Singh went to PS City Gohana and PW 6 handed over to him the photocopy of disclosure statement of accused Narender and accused Randeep, seizure memo of Maruti Car. He proved on record the disclosure statement of accused Narender as Ex. PW 6/A and seizure memo of the Car as Ex. PW 6./C.
33. This witness was cross examined by the counsel for the accused and he denied that the accused has been falsely implicated or no disclosure statement was made.
34. Now the picture which emerges is that the accused was arrested by Gohana police and there he made a disclosure statement regarding his involvement in the present case. So the present FIR No. 84/06, P.S Kanjhawala came into existence. The statement of Ishwar Dass (PW 5) was recorded in the Soneopat Court and in that Court the witness i.e. PW 5 had failed to identify the accused Narender.
35. I have perused the judgment of the Addl. Sessions Judge, Fast Tract Court, Sonepat. It has been observed in the said judgment which is Ex. E C-1 that the 4 accused persons namely Randeep, Narender, Rakesh and Ranbir have been alleged to have stolen the car of Ishwar Dass from Delhi but no identification Parade of the accused persons was ever held and only one accused i.e. Accused Ranbir was identified by Ishwar Dass owner of the stolen car first time in the Court i.e after 13 months of his car having been stolen.
Contd....
1336. The Fast Track Court had also observed that no explanation was forthcoming on the record on the part of the prosecution as to why the accused were not got identified when the owner of the car deposed in his cross examination while appearing as PW 3 that he had repeatedly gone to the police station about 4 times for identification of the accused. The Fast Track Court has further observed that the owner Ishwar Dass identified only one of the accused i.e. accused Ranbir which itself creates a doubt over the genuinity of the case. Although identification of the accused for the first time in the Court after a gap of 13 months itself could not be given much weightage. The fast tract Court of Soneopat had acquitted the accused Narender @ Nandan.
37. Now coming back to this case which is based on the same facts. PW 5 Ishwar Dass owner of the car was examined as PW 5 in this Court on 01-04-2009, whereas in the Sonepat Court he was examined on 12-07-2007 so for the first time, he identified accused Narender in this Court as one of the boys who had come to his Dhaba alongwith two other persons and took away his Maruti Car after showing pistol to him.
38. Now this witness when appeared in the Court at Sonepat failed to identify accused Narender after about 13 months of the incident and when he appeared in this Court by then 2 more years have elapsed from the date of the incident and it is quite strange when he had failed to identify the accused after 13 months of the incident how he could identify the accused after Contd....
14about 40 months of the incident. The contention of the Ld counsel for the accused that the complainant identified accused Narender in this Court as he was the only accused in the dock and it was very easy for the complainant to point finger at him.
39. So in view of the above discussions, in my opinion, the testimony of PW 5 Ishwar Dass regarding the identification of the accused is not believable and the benefit of the same has to go to the accused. Therefore, the prosecution has not been able to prove its case beyond reasonable doubt against the accused. Accused Narender @ Nandan is, therefore acquitted. File be consigned to Record Room.
(Announced in the open Court on 27-01-2011.) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE II, OUTER DISTRICT, ROHINI COURTS : DELHI Contd....