Indian Kanoon - Search engine for Indian Law

Delhi District Court

State vs . 1. Jitender @ Pinki on 7 August, 2013

       IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
        JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI

Sessions Case No. 135/2012
Unique Case ID: 02404R0317192012

State                           Vs.        1.         Jitender @ Pinki
                                                      S/o Lt. Moti Ram
                                                      R/o Jhuggi No. N­28/B­507,
                                                      Gali No. 6, CSA Colony WPIA,
                                                      Ashok Vihar, Delhi. 
                                                      (Convicted)

                                           2.         Mohan Paswan
                                                      S/o Lt. Prakash Paswan
                                                      R/o Jhuggi Plot B­46/2, Satsung 
                                                      Colony, WPIA Ashok vihar, Delhi. 
                                                      (Convicted)

                                           3.         Atul @ Chawal
                                                      S/o Ved Prakash
                                                      R/o Vill. Gadha Oriya, PS Ajeetmal
                                                      Distt.: Oriya, U. P.
                                                      (Convicted)

                                           4.         Arun @ Bhoot
                                                      S/o Ashok 
                                                      R/o Jhuggi Opp. Factory C­58,
                                                      Railway Line, CSA Colony, WPIA
                                                      Ashok Vihar, Delhi.
                                                      (Convicted)

FIR No.                                    :          237/2012
Police Station                             :          Ashok Vihar 
Under Section                              :          395/397/412/34 Indian Penal Code
                                                      & Section 25// Arms Act.


State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar                            Page 1
 Date of committal to Sessions Court : 22.12.2012

Date on which orders were reserved : 06.06.2013

Date on which judgment pronounced : 30.07.2013


JUDGMENT

Brief Facts:

(1) As per the allegations on 22.9.2012 at 7:00 AM in front of Marry Makers Banquet Hall, Wazirpur Industrial Area the accused Jitender @ Pinki, Mohan Paswan, Atul @ Chawal and Arun @ Bhoot along their associate Babloo (since not arrested) committed dacoity of Rs.47,000/­ from the possession of Bijender in a truck Turbo bearing No. RJ­11­GA­5893 and two bags of steel utensils from the possession of Lal Chand in the truck TATA 407 bearing No. RJ­02G­6954, Rs.

4,700/­ from the possession of Om Prakash in a truck bearing No. HR­73­1066.

(2) It is alleged that while committing the aforesaid dacoity, the accused Jitender @ Pinki was found in possession of a buttondar knife which he had used upon the victims Om Prakash, Lal Chand and Bijender.

(3) It is further alleged that on 22.9.2012 at Jhuggi Plot No. B­46/2, Satsang Colony, WPIA, Ashok Vihar the accused Arun @ Bhoot dishonestly received or retained the stolen amount Rs.2,000/­ belonging to Bijender; the accused Atul @ Chawal dishonestly received or retained the stolen amount Rs.30,000/­ belonging to Om Prakash and State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 2 the accused Mohan Paswan dishonestly received or retained the stolen amount of Rs.10,000/­ belonging to Bijender.

Case of Prosecution in Brief:

(4) The case of the prosecution in brief is that on 22.09.2012 on receipt of DD No. 8 PP, SI Ved Prakash along with Ct. Sanjay reached the spot i.e. Merry Makers Banquet Hall and came to know that the victims along with HC Ashok had gone towards Fish Market on which they also reached at Fish Market where they met HC Ashok and the victims Om Prakash, Bijender and Lal Chand along with one Jitender @ Pinki who was apprehended by them and from his possession a buttondar Knife was recovered. SI Ved Prakash came to know that the other assailants had gone towards the Satsang Colony Jhuggi area and hence SI Ved Prakash along with his staff, victims and accused Jitender reached at Satsang Colony jhuggi area where at the instance of the accused Jitender @ Pinki the accused Mohan Paswan was apprehended and Rs.10,000/­ were recovered from his possession belonging to the victim Bijender.

(5) SI Ved Prakash then recorded the statement of complainant / victim Om Prakash who informed him that on 18.9.2012 he was driving his truck bearing No. HR­73 ­1066 and at about 8 PM he parked his truck in front of Marry Maker Banquet Hall, Main Road, Wazirpur Industrial Area. He further informed the police that in the intervening night of 21­12/9/2012 he was sleeping in his aforesaid truck and at about State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 3 7:00 AM one person whose name he later on came to know as Jitender @ Pinki entered into his truck from the window after which his three to four associates also came inside the truck and Jitender put a knife on his (Om Prakash's) chest and robbed Rs.47,000/­ from his pocket and ran away. Om Prakash further told the police that he thereafter raised an alarm on which one Bijenderthe driver of truck bearing No. RJ­11 GA 5839 and one Lal Chand the driver of another truck bearing No. RJ 02G 6954 who had also parked their trucks behind his (Om Prakash's) truck came and informed him (Om Prakash) that they were also robbed of Rs.

47,000/­ and two bags of steel utensils respectively by the assailants. The victims informed the police that all the assailants after committing the dacoity had run away towards the Machhli Market. (6) SI Ved Prakash thereafter prepared rukka and got the present FIR recorded. During the investigations, the co­accused Arun @ Bhoot and Atul @ Chawal were also apprehended and stolen cash recovered from their possession. After completing the investigations, the charge sheet was filed in the court.

CHARGE (7) Initially on 21.01.2013 common charge under Section 395 Indian Penal Code was settled against all four accused namely Jitender @ Pinki, Arun @ Bhoot, Atul @ Chawal and Mohan Paswan. Further, charge under Section 397 IPC and Section 25/27/54/59 Arms Act was settled against the accused Jitender @ Pinki and charge under Section State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 4 412 IPC was settled against the accused Arun @ Bhoot, Atul @ Chawal and Mohan Paswan to which the accused pleaded not guilty and claimed trial. However, after the examination of the victims Om Prakash and Bijender Singh, this Court vide order dated 19.3.2013 observed that three different incidents of robbery had taken place which had been clubbed and consolidated in one FIR. Therefore, in of this fact that the incidents of robbery which took place with Om Prakash, Bijender Singh and Lal Chand were separate and independent of each other and in which three separate persons were robbed of their belongings, the charges so settled were amended and separate charges in respect of these separate incidents were framed to which all the accused pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE (8) In order to discharge the onus upon it, the prosecution has examined as many as ten witnesses:

Public Witnesses:

(9) PW5 Om Parkash is the main complainant in the case and has supported the version given by him to the police. He has deposed that he was residing at Village Karman, Tehsil Horal, District Palwal, Haryana along with his family comprising of his father, wife, three daughters and one son. According to him he is an agriculturist but also into transport business and was plying two trucks under the name and State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 5 style of Om Parkash Transport which business was running from his residential address itself and his vehicles were plying in Delhi, Indoor, Bhopal, Pitampur (all in MP).

(10) He has further deposed that in the intervening night of 21/22.09.2012 he was in his vehicle i.e. truck make TATA 2518 PC bearing No. HR­73­1066 which was a ten tyre truck and he was present in the truck along with his conductor Vineet Sharma and had come from MP. According to him, the vehicle was attached to Delhi ­ MP ­ Bombay Fright Carriers and they had parked the vehicle at Wazirpur at JP Dharamkanta, WPIA, near a Banquet Hall. Witness has further deposed that while they were sleeping inside the vehicle, at about 7:00 AM one person entered the vehicle after breaking the side window from the side of conductor and kept a knife on his chest while he was still sleeping and told him to hand over all his belongings "paisa nikal kya hai tere pas" and in the meanwhile three more persons entered into the truck.

He has further deposed that out of these persons, somebody held his hand, somebody held him by foot and someone removed his belongings including cash to the tune of Rs.4,700/­ from the pocket of his pant. He has explained that out of these currency notes, most of them were of the denomination of Rs.500/­ only two currency notes were in the denomination of Rs.100/­. According to the witness one of the persons while going had threatened him (witness) not to come out from the vehicle"gari se nikalna nahi, nahi to mar denge" and these threats were State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 6 given to him by one person who was having a knife in his hand. (11) On Court question the witness has clarified that out of these four boys, only one was carrying a knife with which he had threatened him whereas other three were unarmed. Witness has further deposed that after 15 minutes when he came out from his truck, he found that there was another truck parked behind his truck which was a 12 tyre TATA truck, make of which he does not recollect but its number was 5839. He has further deposed that when he came out and raise an alarm that his belongings had been taken, the driver of the said truck which was parked behind his truck also came out and told him that even he had also been robbed of his belongings and cash to the tune of Rs.47,000/­. The witness has deposed that he came to know that the name of the said driver was Bijender who was a resident of district Mathura, UP. According to him, then Bijender made a 100 number call to the police and the police gypsy came and they informed them about the incident. The witness has deposed that they also told the police officials that the said persons had gone towards the Machhli Market, WPIA and in the mean while the local police had also come. He has deposed that he and Bijender then joined the police officers in the search of the accused and they went to Machi market WPIA which was adjoining the railway lines. According to him, some boys were sitting on the railway lines and on seeing them with the police, they suddenly started running on which they chased those boys and out of those boys he (witness) could State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 7 identify one boy who had put a knife on his neck and after a short chase, they were able to apprehend the said boy. The witness has deposed that after the said boy was apprehended, the police interrogated him and he gave his name as Pinki and he also disclosed that he was residing at Wazirpur. According to him, from the search of Pinky, one knife was recovered and during interrogation he also disclosed that they were four boys and the name of his other three associates who had committed the robbery were Mohan Paswan, Arun and Chawal. He has deposed that the police in his presence prepared the sketch of the knife and thereafter measured the same after which the accused Jitender @ Pinki was arrested vide memo Ex.PW5/A, his personal search was taken vide Ex.PW5/B and the sketch of the knife is Ex.PW5/C and thereafter Investigating Officer seized the said knife after converting the same into a pullanda and the same was seized vide memo Ex.PW5/D. According to him, the disclosure statement of the accused Jitender @ Pinki was also recorded vide Ex.PW5/E. (12) The witness has correctly identified the accused Pinki (Jitender) by pointing out towards him and also by name. Witness has further deposed that the accused Jitender @ Pinki told them that Mohan Paswan was living in the jhuggie cluster near the Machhli Market and he led them to the Machhli market Juggies and then he led them inside the jhuggie of Mohan Paswan who was found present there and identified him as one of the persons involved in the incident and had State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 8 held his hands. Thereafter, the police apprehended Mohan Paswan and conducted his personal search and from the pocket of his pant, currency notes to the tune of Rs.10,000/­ were recovered. According to him, the accused Mohan Paswan was arrested vide Ex.PW5/F, his personal search was conducted vide memo Ex.PW5/G and the currency notes recovered from his possession were converted into pullanda with the help of cloth and were seized vide memo Ex.PW5/H. The witness has further deposed that the accused Mohan Paswan was interrogated by the police and he disclosed about the incident and his disclosure statement was recorded by the police vide Ex.PW5/I. The witness has correctly identified the accused Mohan Paswan in the court. (13) The witness has deposed that thereafter both Jitender @ Pinki and Mohan Paswan took them to village Burari where they pointed out towards one boy sitting in front of a shop as Chawal as one of their associates who was involved in the crime on which the said boy was apprehended by the police and he (witness) identified him (Chawal) as one of the assailants who had caught hold of his hands and legs at the time of the incident after which the accused Chawal was arrested vide memo Ex.PW5/J and his persons search was conducted vide memo Ex.PW5/K. It is further deposed that from his personal search Rs. 30,000/­ were recovered, i.e. from one pocket Rs 4,700/­ were recovered and from the other pocket the remaining amount would recovered. Witness has further deposed that the said amount was converted into a State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 9 pullanda and seized vide memo Ex.PW5/L and on interrogation he disclosed his involvement in the crime and also disclosed that the said amount was the one which they had robbed from Bijender the driver of the other truck and his disclosure statement is Ex.PW5/M. The witness has correctly identified the accused Chawal @ Atul by pointing out towards him and also by the name. According to the witness thereafter they returned to the spot of the incident at about 1­ 1:30 PM where his truck was parked and the Investigating Officer recorded his statement vide Ex.PW5/N which bears his signatures at point A after which the Investigating Officer prepared the site plan at his (witness's) instance which is Ex.PW5/O. He has deposed that on the asking of the police, he had also handed over the documents of his truck i.e. copy of the RC, photocopy of receipt, photocopy of builty and copy of the bill which was seized vide memo Ex.PW5/P. According to the witness after two days, he was called to the Police Chowki Wazirpur where one boy was present and he identified that boy as the fourth assailant who had caught hold of his hands and legs. The witness has correctly identified the accused Arun @ Bhoot by pointing out towards him in the court. The witness has deposed that later on he had got released the recovered currency notes on superdari from the court. The witness has correctly identified the case property i.e. one button dar knife as the same which was used by accused Jitender @ Pinki during the incident and the said knife is Ex.P1. This Court has also observed that the knife is matching State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 10 with the sketch Ex.PW5/C. The witness has also identified the currency notes from their photographs of the pullandas vide Ex.P2 and Ex.P3 and the photograph of the currency notes which he has taken on Superdari are Ex.P4.

(14) On leading questions put by Ld. APP for the State, the witness has admitted that Vineet Sharma was not the conductor of his truck and was the owner of the company with which the truck was attached with its office at BG­562, Sanjay Gandhi Transport Nagar. He has admitted that he was bringing iron plates loaded in the truck from MP Mittal Transport Company which he was to deliver at A­96 Group WPIA, Ashok Vihar and has explained that he had forgotten these facts on account of lapse of time.

(15) In his cross examination by Ld. Defence Counsels, the witness has deposed that he has studied upto 8th standard. According to him his statement was recorded thrice in the present matter but he had not given description of accused persons in his statement. According to him, at the time of incident 4­5 vehicles were also parked there in a row and on every vehicle there were 2­3 persons employed as cleaner, helper and driver. He has explained that besides him, two other persons were present in his vehicle namely Sharma and Naresh. According to him, at that time Sharma and Naresh did not raise any alarm and has voluntarily explained that they were sleeping in the cabin of the truck. He has further deposed that the vehicle of Bijender and Lal Chand were parked State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 11 behind his vehicle. He has denied the suggestion that there were security guards at the gate of the Marry Maker Banquet Hall but he admits that the place of incident is surrounded by industrial area. Witness has admitted that many public persons were passing through the place of incident. He has deposed that he had told in his statement to the police that after breaking the side window pane, the accused entered the vehicle from conductor side but when he was confronted with his statement Ex.PW5/N it is not found so recorded. The witness has deposed that he had also shown the broken window of his truck to the police officials but police had not taken any photographs of the truck in his presence. Witness has further deposed that in the process of snatching his clothes were not torn and has explained that at first three boys had not let him stand and they over powered him while he was in lying position. According to the witness, he only raised an alarm after about 10­15 minutes of the incident when he came outside from his vehicle but he (witness) did not hear any other noise during this 10­15 minutes. Witness has further deposed that they made a call at 100 number after half an hour of the incident. Witness has admitted that on his call he had informed that some goods has been stolen from their vehicle. The witness denied the suggestion that he had called at 100 number only once. Witness has further deposed that he had only shown the place of incident to the Investigating Officer but how the site plan was prepared he does not aware. He has further deposed that he had State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 12 stated to the police in his statement that after two days from the incident he was called at Police Chowki where one boy was present and he identified as the fourth assailant but when the witness was confronted with his statement Ex.PW5/N it was not found so recorded. According to him, the Investigating Officer had recorded his statement on the day when he reached the Police Chowki and identified the fourth assailant. Witness has admitted that Investigating Officer had obtained his signatures on some papers after about 4­5 days of the incident and has voluntarily explained that all the documents which were prepared at the spot, he signed on the same day, the other documents pertaining to the accused Arun who was later on arrested were signed by him later. Witness has admitted that he was not aware of the contents mentioned in the papers and he had only signed the same on the asking of the Investigating officer.

(16) On a Court question the witness has explained that he is totally illiterate and he can only sign in Hindi but cannot read or write anythings and he cannot produce any certificate of any class including class 7th or 8th and has voluntarily explained that he was a wrestler in the school and his teacher used to pass him in every class but he never seriously attended the classes therefore he is unable to read or write. (17) The witness has further deposed that the PCR came to the spot after 10­15 minutes of their call and he went to Machhli market on the motorcycle. According to him the accused persons were sitting at a State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 13 distance of 200 meters when they had seen them and there were three of them chasing these boys near railway line i.e. HC Ashok, PW5 and Bijender. He has deposed that the officials of the gypsy remained standing on the main road and has voluntarily explained that they had gone inside the jhuggi cluster where the gypsy could not reach and only they could reach on the motorcycle. According to him, he had not stated to the police in his statement that accused Jitender and Mohan had climbed the roofs of the jhuggies and during this process they sustained injuries on their hands and on their legs but when confronted with his statement Ex.PW5/N it was found recorded. The witness has further deposed that the accused Mohan Paswan was apprehended from his jhuggi and all the officials had entered the jhuggi along with him however he does not recollect whether it was left or right side pocket of the pant from where the recovery of the cash made from Mohan Paswan. According to him, from the Jhuggi from which Mohan Paswan was apprehended, there were other persons also present there. He has deposed that they reached Burari much earlier to 1:00 PM and stayed there hardly for 15­20 minutes but is unable to tell the details of the owner of the shop or the house in front of which Atul @ Chawal was apprehended. The witness has denied the suggestion that no cash was recovered either from Mohan Paswan or from Atul @ Chawal or that no knife was recovered from Jitender @ Pinki or that the knife and the cash were planted on Jitender @ Pinky, Mohan Paswan and Atul @ Chawal. State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 14 The witness has denied the suggestion that he had signed all the documents on the directions of the senior officers while sitting in the police station or that the entire incident of robbery has been concocted only to falsely implicate the accused persons because of their previous antecedents. He has further denied the suggestion that he along with the other truck drivers had been stopped by the police and were being booked for traffic violations but they were let off after they agreed to become police witnesses in the present case. Witness has denied that the accused Mohan Paswan was called to the police station by the police where he went with his mother and there he was falsely implicated in the present case. He has further denied the suggestion that accused Atul @ Chawal was himself called to the police Chowki through his Jija namely Mohit and he went there he was falsely implicated in the present case. The witness has denied the suggestion that accused Jitender @ Pinki was called by HC Ashok to the police Chowki where he was falsely implicated in the present case. He is unable to tell if after two days the accused Arun was also called to the police Chowki and falsely implicated in the present case and has voluntarily explained that he was not arrested in his presence. He has further denied the suggestion that he is a planted witness and the entire incident has been allegedly concocted and stage managed only to implicate the accused persons. (18) PW6 Bijender Singh is also a victim of this robbery. He has deposed that he is an agriculturist but also into transport business State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 15 and used to ply his truck Turbo Truck 3118 bearing no. RJ 11GA 5839. According to him on 18.90.2012 his driver Hans Raj loaded the above said truck at Pitampur, Distt. Indore, MP with Iron Strips and handed over the truck to him on 21.09.2012 at Mathura and thereafter he drove the above said truck to WPIA, Ashok Vihar, Delhi. He has deposed that on 22.09.2012 at about 4.30 AM, he reached at Delhi and parked his above said truck infront of Merry Maker Banquet Hall, Wazirpur Industrial Area, at a distance of 100 feet from the JP Dharam Kanta. According to him thereafter he slept in the truck and his conductor also slept backside of the truck over the iron strips and at about 7 AM one person entered the vehicle from the conductor side window and he kept knife on his chest while he was still sleeping. He has deposed that one more person also entered the truck from conductor side window and two more persons entered the truck from driver side and they caught hold him by his hands and legs and told him to give him all his belongings by saying"paise nikalo" and when he protested, the person who was holding the knife, threatened to kill him if he raised any alarm or he protested and they took out his Rs. 47,000/­ from inside of his pant out of which currency notes 43,000/­ were in the denomination of Rs.500/­ and four currency notes of Rs.1000/­. According to the witness, after committing the robbery of his above said Rs.47,000/­ the said persons went on the back side of his truck and told him not to raise any alarm and also not to come out of the truck otherwise they would kill him. State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 16 The witness has deposed that thereafter all the above said assailants went towards one TATA 407 which was parked behind his truck and they also entered in the TATA 407 after which they overpowered the truck driver of TATA 407 and robbed two bags of steel utensils and ran away towards the Machchi Market Jhugies Area. The witness has further deposed that he then came to know that the truck driver Om Prakash was also looted by the above said persons. He has further deposed that the truck of Om Prakash was parked ahead of his Truck. The witness has deposed that thereafter he spoke to Om Prakash and Lal Chand driver of TATA 407 vehicle and also made a 100 number call to the police from the mobile phone of the another person who was present there after which the police gypsy came to the spot and they informed them about the incident. The witness has further deposed that they also told the police officials that the said persons had gone towards the Machhli market, WPIA and in the mean while the local police had also come when he, Om Prakash and Lal Chand joined the police officers in the search of the accused persons. According to the witness, they had seen the assailants on the fly over but on seeing the police, assailants ran towards the Machchli market WPIA which and thereafter they went to Machchi Market Jhuggie area adjoining the railway lines. The witness has deposed that some boys were sitting on the railway lines and on seeing them with the police, they suddenly started running on which they all also ran after them and out of them he could identify one boy State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 17 who had put knife on his chest and after a short chase they were able to apprehend the said boy, whose name they later on came to know was Jitender @ Pinki who was the same boy who had put the knife on his chest. The witness has deposed that after he was apprehended the police interrogated him and gave his name as Jitender @ Pinki and he also disclosed that he was residing at Wazirpur and from his search, a buttondar knife was recovered. The witness has deposed that during interrogation Jitender also disclosed that they were four boys and the name of his other three associates who had committed the robbery were Mohan Paswan, Arun @ Bhoot and Atul @ Chawal. According to the witness the police in his presence prepared the sketch of the knife and thereafter measured the same and the accused Jitender @ Pinki was then arrested vide memo Ex.PW5/A his personal search was taken vide memo Ex.PW5/B and the sketch of the knife is Ex.PW5/C and thereafter the Investigating Officer seized the said knife after converting the same into a pullanda and the same was seized vide memo Ex.PW5/D. The witness has deposed that disclosure statement of the accused Jitender @ Pinki was also recorded vide Ex.PW5/E. The witness has correctly identified the accused Jitender @Pinky by pointing out towards him and also by name. The witness has deposed that the accused Jitender @ Pinki told them that Mohan Paswan was living in the jhuggie cluster near the Machchi market and he led them to the Machhli market Juggies. He has deposed that there the accused led State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 18 the police inside the jhuggie of Mohan Paswan where he was present and he (witness) identified him as one of the boys who was involved in the incident and had held his legs. According to the witness from the pocket of his pant currency notes to the tune of Rs.10 thousand were recovered and thereafter he (Mohan Paswan) was arrested vide Ex.PW5/F and personally searched vdie memo is Ex.PW5/G. The witness has deposed that the currency notes which were recovered from the possession of the accused Mohan Paswan were duly converted into pullanda with the help of cloth and thereafter seized vide memo Ex.PW5/H. According to the witness the accused Mohan Paswan was interrogated by the police and he disclosed about the incident vide memo Ex.PW5/I. The witness has correctly identified the accused Mohan Paswan. According to the witness, on the same day in the evening time he along with Om Prakash and Lal Chand reached at the police post WPIA, Ashok Vihar, Delhi and thereafter at the instance of the accused Mohan Paswan and Jitender @ Pinki one person, was apprehended near Burari who disclosed his name as Atul @ Chawal who took away his money forcibly from inside of his pant. The witness has deposed that the police interrogated him and he confessed about his involvement and he identified him as the person who had removed his money from inside of his pant at the time of incident. The witness has deposed that the accused was thereafter arrested vide memo Ex.PW5/J and his persons search was conducted vide memo Ex.PW5/K and from State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 19 his personal search Rs.30 thousand total were recovered, i.e. from one pocket Rs 4,700/­ were recovered and from the other pocket the remaining amount of Rs. 25,300/­ was recovered and the said amount was converted into a pullanda and seized vide memo Ex.PW5/L. The witness has deposed that on interrogation he disclosed his involvement in the crime and also disclosed that the said amount was the one which they had robbed from him which disclosure statement is Ex.PW5/M. Witness has correctly identified the accused Chawal @ Atul by pointing out towards him and also by the name of Chawal. The witness has deposed that he was then relieved and he returned back to his truck and on the asking of the police he had also handed over the documents of his truck i.e. copy of the RC, photocopy of receipt, photocopy of builty and copy of the bill which was seized vide memo Ex.PW6/A and the documents are Ex.PW6/B­1 to Ex.PW6/B­5. He has deposed that thereafter they unloaded their truck in the night of 23.09.2012. (19) The witness has deposed that on 24.09.12 he went to the police post Wazirpur Ashok Vihar, Delhi where he along with the police officials, Om Parkash and three accused persons namely Jitender @ Pinky, Mohan Paswan and Atul @ Chawal reached near a bagh near railway line and at the instance of three arrested accused, accused Arun @ Bhoot was apprehended and who was interrogated by the Investigating Officer and the accused confessed about his involvement in the present case. The witness has further deposed that he identified State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 20 the accused Arun @ Bhoot who caught hold him by his legs. According to the witness Rs.2,000/­ were recovered from the possession of accused Arun after which he was arrested accused Arun vide Ex.PW6/C and his personal search was also conducted vide memo Ex.PW6/D after which his disclosure statement was recorded vide Ex.PW6/E. According to the witness Rs.2000/­ were sealed in a cloth pullanda by the police and seized the same vide seizure memo Ex.PW6/F. The witness has identified the accused Arun @ Bhoot by pointing out towards him. (20) The witness has deposed that he had received Rs.37,000/­ thousand three hundred from the robbed money on Superdari from the court. The witness has correctly identified the knife Ex.P1 as the same which was used by accused Jitender in the incident. Court has observed that the knife is matching with the sketch Ex.PW5/C. The witness has further identified the photographs of the pullandas Ex.P2 and Ex.P3, the photograph of the currency notes which were recovered from the accused persons and taken on Superdari by Om Parkash is Ex.P4, photograph of currency notes which were recovered from the accused persons and taken by him on Superdari EX P5.

(21) In his cross examination, the witness has deposed that he is only 6th standard passed. He has deposed that the police recorded his statement two times i.e. on 22.09.2012 and on 24.09.2012. He deposed that he had not given description of the fourth assailant on 22.09.2012 to the police in his statement. The witness has deposed that many vehicles State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 21 i.e. about 15 vehicles were parked at the place of incident. He admits that the driver, conductor and helper usually remain in the truck and has explained that his conductor Naresh was sleeping on the back side of the truck on the iron plates. He admits that he did not raise alarm when accused persons entered inside his truck and states that the conductor Naresh did not know about the incident. He deposed that truck of Om Parkash was parked ahead of his truck at a distance of 5­6 feet but his truck was not face to face with the truck of Om Parkash and has voluntarily explained that his truck was parked behind the truck of Om Parkash. The witness has deposed that two to three Chowkidars were present at the gate of banquet hall. He admits that the place of incident is a industrial area but states that he did not see any security guard or Chowkidar at the gates of the factories situated there. The witness has deposed that the accused persons did not cause any damage to his vehicle as well as to the vehicle of Om Parkash. Witness is not aware whether any damage was done to the vehicle of Lal Chand or not. He deposed that his pant was torn while the above said incident robbery was committed with him. Witness has deposed that he did not raise alarm when accused persons steped down from his truck and has voluntarily explained that he was under fear due to threat of the accused. According to him he did not hear any noise of bacho­bacho. He has deposed that he made call to the police at 100 number after 45 minutes of incident committed against him and within 10­15 minutes police State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 22 reached at the spot. According to him, he inform the police at 100 number that his money has been snatched by putting a knife on him. The witness ha deposed that Lal Chand also made a call at 100 number. The witness has deposed that at the instance of accused Jitender they all reached at the place from where accused Arun @ Bhoot was arrested. The witness has deposed that one of the police officials had apprehended Arun but he does not know his name. According to the witness, residential jhuggies are situated at a distance of 100 feet from the place of arrest of accused Arun. The witness has deposed that the police has not obtained any signatures from Om Parkash on 24.09.2012. The witness has denied that the accused Arun was shown to him by the Investigating Officer outside the Court Room and due to this reason he had identified him as the fourth assailant. Witness has further denied that accused Arun was falsely implicated in the present case at the instance of the Investigating Officer or that Arun has not committed any robbery on him. The witness has further deposed that he had first seen Mohan Paswan on 24.09.2012. He has denied that no knife was recovered from Jitender @ Pinki or that the knife and the cash were planted on Jitender @ Pinki Mohan Paswan and Atul @ Chawal. He has denied that he along with the other truck drivers had been stopped by the police and were being booked for traffic violations but they were let off after they agreed to become police witnesses in the present case. The witness has further denied that the accused Mohan Paswan was State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 23 called to the police station by the police where he went with his mother and there he was falsely implicated in the present case. Witness has denied that accused Atul @ Chawal was himself called to the police chowki through his Jija Mohit or that after he went there he was falsely implicated in the present case or that accused Jitender @ Pinki was called by HC Ashok to the police Chowki where he was falsely implicated in the present case.

(22) PW7 Lal Chand is also a victim of this robbery. He has deposed that he is a driver by profession and used to drive TATA 407 bearing No. RJ02 G 6954 owned by one Subhash who is a resident of his village. He has further deposed that on 21.09.2012 they proceeded towards Delhi from Neerana with goods containing steel utensils and on 22.09.2012 they reached at Delhi at early morning time. According to him at about 5.00 AM they parked their vehicle at Wazirpur Industrial Area in front of the Merry Maker Banquet Hall, Ashok Vihar Delhi. Witness has further deposed that he was sleeping in the vehicle at that time when one person whose name he came to know later on was Pinki, came inside of the vehicle and put knife on his neck and his two­three associates were standing outside of his vehicle and Pinki demanded money from him. Witness has further deposed that he informed that person that he was not having any money and also told them that steel utensils have been loaded in his vehicle but thereafter accused Pinki told his associates to take away the steel utensils from the vehicle. Witness State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 24 has further deposed that Pinki and his associates took away two bags of steel utensils from his TATA 407 and ran away towards Machhli Market. According to the witness he thereafter made call at 100 number and one police official came at the spot. The witness has deposed that two to three other truck drivers were also robbed by Pinki and his associates at the spot. According to the witness, thereafter he along with victim Om Prakash and one other victim and the police official followed the above said assailants and Pinki was apprehended by them at Machhli Market. Witness has further deposed that one knife was recovered from the possession of the accused Pinki which was used by him while putting the same on his neck. He has stated that in the meanwhile other police officials also reached there and thereafter at the instance of accused Pinki, accused Mohan Paswan was apprehended from the nearby jhuggi and Rs.10,000/­ were recovered from his possession and thereafter they returned back at the spot. According to him, the police seized the knife and also seized Rs.10,000/­ recovered from Mohan Paswan and both the accused were arrested. The witness has deposed in the evening time, the third accused namely Chawal was arrested from Sant Nagar, Burari and Rs.30,000/­ were recovered from his possession and the same were also seized by the police. Witness has further deposed that the sketch of the knife Ex.PW5/C was prepared in his presence and the knife was seized by police vide Ex.PW5/D. According to him, the accused Jitender @ Pinki was arrested vide Ex.PW5/A and his personal search State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 25 was taken vide Ex.PW5/B, accused Mohan Paswan was arrested vide Ex.PW5/F and his personal search was taken taken vide Ex.PW5/G. Witness has further deposed that accused Jitender was interrogated and his disclosure statement was recorded vide Ex.PW5/E, Rs.10,000/­ were recovered from accused Mohan Paswan vide Ex.PW5/H, and his disclosure statement was recorded vide Ex.PW5/I and accused Atul @ Chawal was arrested vide Ex.PW5/J and his personal search was taken vide Ex.PW5/K and Rs.30,000/­ were recovered from his possession vide Ex.PW5/L. Witness has correctly identified the accused Arun @ Bhoot, Jitender @ Pinki, Mohan Paswan and Atul @ Chawal. He has also correctly identified the case property i.e. one buttondar knife as the same used by accused Pinki and recovered from his possession and the said knife is Ex.P­1, photographs of pullandas Ex.P­2 and Ex.P­3 and photographs of currency notes Ex.P­4 as the same prepared in his presence. He has also identified the currency notes in the photographs. (23) In his cross­examination, the witness has deposed that only the accused Jitender @ Pinki entered in his cabin in the morning time at about 7.00 AM from the side of conductor and put the knife on his neck but he (witness) had no time to raise an alarm and no helper was with him at that time. He has further deposed that he made call to the 100 number by his mobile phone number 9250650738 and it was after about fifteen­twenty minutes of the incident and one police officials came at the spot. According to him, the accused Jitender was apprehended in State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 26 the Machhli market at a distance of 150­200 paces from the spot of incident and only one police official was with them when they apprehended accused Jitender @ Pinki and he was apprehended by the police. Witness has further deposed that they were four persons when the accused Jitender @ Pinki was apprehended. According to him, the knife was recovered from the right pocket of pant of accused Jitender and the accused Jitender did not try to show or use his knife against them when he was apprehended. Witness has admitted that he has seen the said knife when the police took the formal search of the accused Jitender. Witness has further deposed that he has seen Mohan Paswan when he took away the utensils from his truck along with other accused persons. He has clarified that the police only took about 2­3 minutes while seizing the knife and has stated that the writing work was done by the police while sitting in the official vehicle. He has further deposed that he does not know what were the documents prepared by the police officials and states that he had put his signatures on the documents on the asking of police officials. Witness has admitted that he had mentioned in his statement to the police about the name of the accused Jitender @ Pinki and Mohan Paswan and Atul @ Chawal and also stated about fourth accused, however, when the witness was confronted with his statement Ex.PW7/DX­1 it was not found so recorded. According to him, his statement was recorded at Police Chowki at about 10.00­11.00 PM on 22.09.2012. Witness has further deposed that accused Atul @ State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 27 Chawal was arrested in the evening time at about 8.30­9.00PM. He has denied the suggestion that he has identified the accused Arun @ Bhoot as the fourth assailant only at the instance of the Investigating Officer. He has further denied the suggestion that the accused Arun @ Bhoot was not even present at the time of incident or that for this reason he had not mentioned about the same in his previous statement. He has further denied the suggestion that police officials tutored him outside the court room or that he is deposing falsely at their instance. He has denied the suggestions that the accused persons did not commit any offence or that nothing was recovered from their possession or that the knife has been planted upon the accused Jitender. He has further denied that the alleged recovery has been planted upon the accused persons namely Mohan Paswan and Atul.

Police / Official Witnesses:

(24) PW1 Ct. Amit Kumar has tendered his examination­in­ chief by way of affidavit which is Ex.PW1/1 wherein he has relied upon the documents i.e. DD No. 7 copy of which is Ex.PW1/A and DD No. 8 copy of which is Ex.PW1/B. The witness has not been cross­examined on behalf of the accused and the entire testimony has gone uncontroverted.

(25) PW2 HC Ravinder Kumar has tendered his examination­ in­chief by way of affidavit which is Ex.PW2/1 wherein he has relied State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 28 upon the documents i.e. FIR No. 237/12 copy of which is Ex.PW2/A which bears his signatures at point A (original seen and returned) and endorsement on rukka which is Ex.PW2/B. The witness has not been cross­examined on behalf of the accused and the entire testimony has gone uncontroverted.

(26) PW3 HC Rishi Raj has tendered his examination­in­chief by way of affidavit which is Ex.PW3/1 wherein he has relied upon the documents i.e. entry in Register No. 19 vide S. No. 3345/12 copy of which is Ex.PW3/A (three pages) and S.No. 3347/12 copy of which is Ex.PW3/B. In his cross­examination he has deposed that the Investigating Officer had deposited the sample seal with him on the same day in the evening.

(27) PW4 Ct. Amit has tendered his examination­in­chief by way of affidavit which is Ex.PW4/1 wherein he has relied upon the document i.e. PCR form which is Ex.PW4/A. The witness has not been cross­examined on behalf of the accused and the entire testimony has gone uncontroverted.

(28) PW8 HC Ashok has deposed that on 22.09.2012 he was posted at Police Post WPIA, Ashok Vihar, Delhi and on that day at about 7.25AM he received a DD No. 7PP regarding the theft of utensils from the vehicle, near the Merry Makers Banquet Hall and the said DD is Ex.PW1/A. According to him, he immediately reached near the Merry Maker Banquet Hall, WPIA, Delhi where three victim persons State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 29 namely Om Prakash, Bijenderand Lal Chand met him and they alleged that three to four assailants committed robbery with them and they also informed him that the assailants ran away towards the Fish Market.

Witness has further deposed that he parked his motorcycle there and a he along with above said three victim persons went towards the fish market and four to five persons were present under the Azadpur Bridge and the victim persons identified them as assailants who ran away from there after seeing him in police uniform. According to him, they chased them and apprehended one of the assailant who disclosed his name as Jitender @ Pinki whereas the other three four assailants ran away from there and on formal search one buttondar knife was recovered from the right pocket of his pant and all three victim persons identified the knife as the same one which was used by the accused Jitender in the incident of robbery with them. Witness has further deposed that meanwhile SI Ved Prakash came there with Ct. Sanjay and they informed SI Ved Prakash that other assailants had run towards the Satsang Colony Jhuggi area. He has further deposed that they went towards the Satsang Colony jhuggi area alongwith accused Jitender @ Pinki and at the instance of Jitender @ Pinki they apprehended accused Mohan Paswan from the jhuggi and on formal search Rs.10,000/­ were recovered from his possession. According to him, Bijender identified the currency notes of Rs.10,000/­ as belonging to him and robbed by the assailants and all three victims identified accused Mohan Paswan and they again reached State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 30 at the Machhli Market with both accused Jitender and Mohan Paswan but no other assailants could be apprehended there. Witness has further deposed that SI Ved Prakash prepared the pullanda of Rs.10.000/­ and sealed the same with the seal of VP and seized the same vide memo Ex.PW5/H and thereafter SI Ved Prakash prepared the sketch of knife vide Ex.PW5/C. According to him, SI Ved Prakash took measurement of the knife and mentioned the same in the sketch and the knife was kept in a cloth pullanda and sealed with the seal of VP and seized vide memo Ex.PW5/D. The witness has deposed that SI Ved Prakash recorded the statement of Victim Om Prakash in detail and prepared the rukka and handed over the same to Ct. Sanjay for registration of the FIR. Witness has further deposed that accused Jitender was arrested vide Ex.PW5/A, his personal search was taken vide Ex.PW5/B, his disclosure statement was recorded vide Ex.PW5/E all these documents bears his signatures at point D. According to the witness the accused Mohan Paswan was arrested vide Ex.PW5/F, his personal search was taken vide Ex.PW5/G, his disclosure statement vide Ex.PW5/I and thereafter they reached at the place of incident. Witness has further deposed that SI Ved Prakash prepared the site plan at the instance of the victim and meanwhile Ct. Sanjay reached at the spot and handed over the copy of FIR and original rukka to SI Ved Prakash and thereafter they went to the police station and the case property was deposited in the malkhana and the police officials reached at the Rohini court with accused persons State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 31 and two days Police Custody Remand was granted to both accused. He has further deposed that they again went in the search of the remaining assailants and three victims were also included in the investigation and they reached at Sant Nagar Burari, Gali No. 82 and both accused pointed out the accused Atul @ Chawal. According to him all three victims identified accused Atul @ Chawal that he was one of the assailants who robbed them and on formal search Rs.30,000/­ (i.e. Rs. 25,300/­ in one packet and Rs.4,700/­ from another pocket) were recovered from his possession and the same were sealed in a cloth pullanda with the seal of BP and seized the same vide Ex.PW5/L. Witness has further deposed that accused Atul @ Chawal was arrested vide Ex.PW5/J and his personal serach was taken vide Ex.PW5/K and his disclosure statement was recorded vide Ex.PW5/M. Thereafter, the accused persons were kept in lock up after their medical examination after which the Investigating Officer recorded his statement at the Police Post. The witness has correctly identified the accused Jitender @ Pinki, Mohan Paswan and Atul @ Chawal. He has also correctly identified one buttondar knife as the same as recovered from possession of accused Jitender @ Pinki and the said knife is Ex.P­1, the photographs of pullandas Ex.P­2 and Ex.P­3 and photographs of currency notes Ex.P­4 as the same which were prepared and seized in his presence and also identified the currency notes recovered in his presence from the photographs.

State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 32 (29) In his cross­examination, the witness has admitted that the accused Arun @ Bhoot was not arrested in his presence. According to him, he had reached at the spot within five minutes. He has explained that the distance between the place of incident and Azadpur Bridge is about 150­200 meters. He has deposed that he along with the help of Om Prakash and Bijender apprehended the accused Jitender @ Pinki and Dal Chand who was also with them and had come there. The witness has deposed that they remained at the spot for about 7­8 minutes while the knife was recovered from the possession of accused Jitender and the victim had identified him. He has further stated that SI Ved Prakash had reached there with Ct. Sanjay and after reaching of SI Ved Prakash, they remained there only for five minutes whereas SI Ved Prakash did not prepare any document there. He has deposed that he handed over the recovered knife to SI Ved Prakash who kept the same in his pocket. According to him, no knife pullanda and seizure memo of the said knife was prepared by SI Ved Prakash at that place. The witness has deposed that they did not call any independent public witness when the knife was recovered from the possession of the accused Jitender. Witness has further deposed that the accused Mohan Paswan was apprehended at about 8.30­8.45 AM from his jhuggi. According to him, the accused Mohan Paswan was apprehended from the ground floor of Jhuggi and Rs.10.000/­ were recovered from the right pocket of his pant and all the currency notes were in denomination State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 33 of Rs.500/­. Witness has further deposed that Bijender identified the currency notes belonging to him. He has stated that Bijender did not disclose the number of the currency notes and also the denomination of the currency notes before the recovery of said Rs10,000/­ . Witness has further deposed that there was no specific identification mark on the said currency notes and Investigating Officer also did not put his identification marks on the said currency notes after the recovery. Witness has denied the suggestion that nothing was recovered from accused Mohan Paswan or that Rs.10,000/­ were taken from his family members and falsely planted upon him. He has further denied the suggestion that no document was prepared at Fish Market or that he had put his signatures on the documents at police station at the instance of the Investigating Officer. According to him, they took the accused persons to Rohini Court in an ERV i.e. official vehicle. Witness has denied the suggestion that nothing was recovered from the possession of accused Atul @ Chawal or that Rs.30,000/­ were produced by the relative of the accused Atul @ Chawal at their police post on the asking of the Investigating Officer or that the same was planted upon the accused Atul @ Chawal as the robbed money. Witness has further denied the suggestion that he did not join the investigation at any time. (30) PW9 Ct. Sanjay has deposed that on 22.09.2012 he was posted at PP WPIA, Ashok Vihar, Delhi and on that day at about 8.00AM he along with SI Ved Prakash went to the Merry Makers State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 34 Banquet Hall after receiving the DD No. 8. According to him they reached at Merry Makers Banquent Hall and thereafter they reached at Fish Market where HC Ashok with three persons namely OM Prakash, Bijender and Lal Chand met them with accused Jitender @ Pinki. Witness has further deposed that HC Ashok produced the buttaondar Knife allegedly recovered from the possession of accused Jitender @ Pinki and HC Ashok and three victims disclosed all the fact to SI Ved Prakash and thereafter they went towards the Satsang Colony jhuggi area alongwith accused Jitender @ Pinki. According to him at the instance of Jitender @ Pinki they apprehended the accused Mohan Paswan from the jhuggi and on formal search Rs.10,000/­ were recovered from his possession and Bijender identified the currency notes of Rs.10,000/­ as belonging to him and robbed by the assailants. Witness has further deposed that all three victims identified accused Mohan Paswan. The witness has further deposed that they again reached at the Machhli Market with both accused Jitender and Mohan Paswan but no other assailants could be apprehended there. According to the witness, SI Ved Prakash prepared the pullanda of Rs.10.000/­ and sealed the same with the seal of VP and seized the same vide memo Ex.PW5/H and thereafter SI Ved Prakash prepared the sketch of knife vide Ex.PW5/C. He has deposed that SI Ved Prakash took measurement of the knife and mentioned the same in the sketch and the knife was kept in a cloth pullanda and sealed with the seal of VP and State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 35 seized vide memo Ex.PW5/D bearing his signatures at point E and SI Ved Prakash recorded statement of victim Om Prakash in detail and prepared the rukka and handed over the same to him for registration of the FIR. Witness has further deposed that he went to the police station and got the FIR registered and returned back at the spot and handed over the copy of FIR and original rukka to SI Ved Prakash. According to him, the accused Jitender was arrested vide Ex.PW5/A, his personal search was taken vide Ex.PW5/B, his disclosure statement was recorded vide Ex.PW5/E and all these documents bears his signatures at point E. He has further deposed that the accused Mohan Paswan was arrested vide Ex.PW5/F, his personal search was taken vide Ex.PW5/G, his disclosure statement vide Ex.PW5/I. According to him, thereafter they reached at the place of incident and SI Ved Prakash prepared the site plan at the instance of the victim and thereafter they went to the police station and the case property was deposited in the malkhana and the police officials reached at the Rohini court with accused persons and two days Police Custody Remand to both accused was granted. According to him they again went in search of the remaining assailants and three victims were also included in the investigation and they reached at Sant Nagar Burari, Gali No. 82 and both accused pointed out the accused Atul @ Chawal. Witness has further deposed that all the three victims identified accused Atul @ Chawal that he was one of the assailants who robbed them and on formal search Rs.30,000/­ (i.e. Rs. State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 36 25,300/­ in one packet and Rs.4,700/­ from another pocket) were recovered from his possession and the same were sealed in a cloth pullanda with the seal of BP and seized the same vide Ex.PW5/L. Witness has further deposed that accused Atul @ Chawal was arrested vide Ex.PW5/J and his personal search was taken vide Ex.PW5/K and his disclosure statement was recorded vide Ex.PW5/M and there accused persons were kept in lock up after their medical examination and Investigating Officer recorded his statement at the police post. (31) According to the witness on 24.09.2012 he again joined the investigation with SI Ved Prakash and HC Badar Singh and Bijender were also included in the investigation and they along with the three arrested accused persons reached at DDA Flats, Jailor Wala Bagh, Ashok Vihar, Phase­II Delhi at about 11.00AM. According to him at the instance of the accused persons, accused Arun @ Bhoot was apprehended and on the formal search four currency notes in denomination of Rs.500 (Total Rs. 2000/­) were recovered from his possession and the same were kept in a cloth pullanda and sealed with the seal of VP and seized the same vide seizure memo Ex.PW6/F. Witness has further deposed that accused Arun @ Bhoot was arrested vide Ex.PW6/C and his personal search was taken vide Ex.PW6/D and his disclosure statement was recorded vide Ex.PW6/E. According to the witness, the accused Jitender @ Pinki, Mohan Paswan, Atul @ Chawal and Arun @ Bhoot were present in the court. Witness has correctly State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 37 identified all the accused persons in court. He has also correctly identified knife Ex.P­1, photographs of pullandas Ex.P­2 and Ex.P­3 and photographs of currency notes Ex.P­4.

(32) In his cross­examination the witness has admitted that vehicles of victim were found in the Wazirpur Industrial Area. The witness is unable to tell whether all the factory premises were guarded by the security guards. According to him, no Security Guard or Chowkidar of the Merry Makers Banquet hall were called by the Investigating Officer in his presence. Witness has deposed that 5­7 vehicles were found on the road in front of Merry Makers Banquet Hall but he did not notice any broken glass of the vehicle of victims and has explained that it was because they had proceeded further immediately and public persons who had gathered there informed them that the victim and the HC Ashok had gone towards the Machchi Market area. He is unable to tell the name and description of the person who informed them about the same. He has explained that the shirt of Om Prakash was found torn when they met him and states that the Investigating Officer did not seize the said shirt in his presence. The witness has denied the suggestion that nothing was recovered from any of the accused persons or that the alleged recovery is planted upon the accused persons. He has further deposed that on 24.09.2012 Bijender met them at the police post but he is not aware whether he was called by the Investigating Officer or he came at the police post himself. State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 38 According to him they proceeded from police post in the official vehicle (ERV) at about 11.00 AM and they reached at the DDA park at about 11.30 AM and one or two public persons were present in the park. Witness has further deposed that he does not know whether SI Ved Prakash had asked them to become the witness of the proceedings. He has explained that Bijender had pointed out the accused Arun @ Bhoot from a distance of about fifty meters but does not recollect if they all were in police uniform at that time. Witness has admitted that there is a residential area near the park and also that there was a boundary wall of the DDA Park but is unable to tell its height. He has stated that he did not notice any specific identification marks on the recovered currency notes of Rs.2000/­ and the currency notes belonging to victim Om Prakash. He has further deposed that Om Prakash did not disclose the currency notes numbers or any specific identification mark to the Investigating Officer before any recovery. He has further explained that accused Arun was not able to run away from the spot since he was overpowered by them. He does not recollect where the writing work was done regarding the accused Arun @ Bhoot but states that the disclosure statement of Arun @ Bhoot was recorded in the DDA Park while sitting in the vehicle. According to him the vehicle was parked outside the park at a distance of about ten feet and has voluntarily explained that the park is open area having broken boundary wall in some area. Witness has further deposed that he does not remember if State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 39 Investigating Officer had put his specific mark on the recovered currency notes and states that it took about five minutes in preparing the pullanda of currency notes. According to him, they remained at the DDA Park for about 30 to 45 minutes and states that he did not notice whether Bijender had gone away from the DDA park or accompanied them to the police station. Witness has denied the suggestion that he did not join investigations of this case. He has further denied the suggestion that accused Arun was not arrested in a manner stated by him or that he was called at police station after two day of incident and falsely implicated in this case due to his previous involvements. He has further denied the suggestion that nothing was recovered from accused Arun @ Bhoot.

(33) PW10 SI Ved Prakash has deposed that on 22.09.2012 he was posted as Incharge of the PP WPIA, Ashok Vihar, Delhi and on that day at about 7.45 AM he along with Ct. Sanjay went to the Merry Makers Banquet Hall after receiving the DD No.8PP which is Ex.PW1/B. According to him, they reached at Merry Makers Banquent Hall where they came to know that the victims and HC Ashok went to the Fish Market Area and thereafter they reached at Fish Market where HC Ashok with three persons namely Om Prakash, Bijender and Lal Chand met them along with accused Jitender @ Pinki. According to him HC Ashok produced the buttondar Knife allegedly recovered from the possession of accused Jitender @ Pinki and HC Ashok and three State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 40 victims disclosed all the fact to him and accused Jitender and HC Ashok told him that other assailants had gone towards the Satsang Colony Jhuggi area. Witness has further deposed that thereafter they reached at Satsang Colony jhuggi area along with accused Jitender @ Pinki and at the instance of Jitender @ Pinki they apprehended accused Mohan Paswan from the ground floor of the jhuggi and on formal search Rs. 10,000/­ were recovered from his possession and Bijender identified the currency notes of Rs.10,000/­ as belonging to him and robbed by the assailants. Witness has further deposed that he took possession of the currency notes and all three victims identified accused Mohan Paswan. According to him, they again reached at the Machhli Market with both accused Jitender and Mohan Paswan but no other assailants could be apprehended there. He has proved having prepared a pullanda of Rs.10,000/­ and sealed the same with the seal of VP and seized the same vide memo Ex.PW5/H. Witness has further deposed that he prepared the sketch of knife vide Ex.PW5/C and seized vide memo Ex.PW5/D. According to him, he recorded statement of Victim Om Prakash in detail vide Ex.PW2/N. Witness has further deposed that he prepared the rukka Ex.PW10/A and handed over the same to Ct. Sanjay for registration of FIR and thereafter they all reached the place of incident. He has further stated that he prepared the site plan at the instance of victims which site plan is Ex.PW5/O. According to him, meanwhile Ct. Sanjay reached at the spot and handed over the copy of FIR and original State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 41 rukka to him for further investigation and he interrogated the accused persons and thereafter accused Jitender was arrested vide Ex.PW5/A, his personal search was taken vide Ex.PW5/B, his disclosure statement was recorded vide Ex.PW5/E. Witness has further deposed that accused Mohan Paswan was arrested vide Ex.PW5/F, his personal search was taken vide Ex.PW5/G, his disclosure statement vide Ex.PW5/I. According to him, the victim were left there and thereafter they went to the police station and the case property was deposited in the malkhana and police officials reached at the Rohini court with accused persons and two days Police Custody Remand of both accused was granted after which they again went in the search of the remaining assailants when the three victims were also included in the investigation. According to him, they reached at Sant Nagar Burari, Gali No. 82 and both accused pointed out the accused Atul @ Chawal and all three victims identified accused Atul @ Chawal as one of the assailants who had robbed them. Witness has further deposed that on formal search Rs.30,000/­ (i.e. Rs.25,300/­ in one packet and Rs.4,700/­ from another pocket) were recovered from his possession and the same were sealed in a cloth pullanda with the seal of VP and seized the same vide Ex.PW5/L. According to the witness, the accused Atul @ Chawal was arrested vide Ex.PW5/J and his personal search was taken vide Ex.PW5/K and his disclosure statement was recorded vide Ex.PW5/M. The witness has deposed that he also seized the photocopy of RC, receipt of weight, State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 42 photocopy of the bilty and bill of Mittal Transpoort corporation from Om Prakash vide Ex.PW5/P and documents are Ex.PW10/B­1 to Ex.PW10/B­4. According to him, he also collected the photocopy of the RC, photocopy of the weight, photocopy of the bill of Mittal Transport vide Ex.PW6/A and the documents are Ex.PW6/B­1 to Ex.PW6/B­5. The witness has deposed that he also seized the photocopy of bilty, photocopy of RC and insurance, photocopy of permit and photocopy of pollution certificate from victim Lal Chand vide memo Ex.PW10/C and documents are Ex.PW10/D­1 to Ex.PW10/D­9. Thereafter, he recorded statement of victim and the police officials. The witness has deposed that on 23.09.2012 the accused Atul was produced before the court and one day Police Custody Remand was granted by the court. On 24.09.2012 he again conducted the investigation with HC Bhadar Singh, Ct. Sanjay and Bijender and they along with the three arrested accused reached at DDA Park, Jailor Wala Bagh, Ashok Vihar, Phase­II Delhi at about 11.00 AM and at the instance of the accused persons, accused Arun @ Bhoot was apprehended. According to him, on the formal search four currency notes in denomination of Rs.500 (Total Rs.2000/­) were recovered from his possession and the same were kept in a cloth pullanda and sealed with the seal of VP and seized the same vide seizure memo Ex.PW6/F. Witness has further deposed that accused Arun @ Bhoot was arrested vide Ex.PW6/C, his personal search was taken vide Ex.PW 6/D and his State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 43 disclosure statement was recorded vide Ex.PW6/E. According to him, he recorded the statement of witnesses and he collected the PCR form which is Ex.PW4A. The witness has identified the accused Jitender @ Pinki, Mohan Paswan, Atul @ Chawal and Arun @ Bhoot. He has also identified the knife is Ex.P­1, photographs of pullandas Ex.P­2 and Ex.P­3 and photographs of currency notes Ex.P­4. (34) In his cross­examination the witness has admitted that vehicles of victim persons were found in the Wazirpur Industrial Area. Witness is unable to say whether all the factory premises were guarded by the security guards and has explained that no security guard was found in the nearby factories. He has stated that he did not make any inquiry from the security guard or Chowkidar of the Merry Makers Banquet hall. According to him, three to four vehicles were found on the road in front of Merry Makers Banquet Hall and the window of vehicle of Om Prakash was found damaged. The witness has further deposed that the public persons gathered there informed that the victim and the HC Ashok had gone towards the Machhli Market area however he is unable to tell the name and description of the person who informed them about the same. Witness has further deposed that shirt of Lal Chand was found torn when they met him. He has admitted that he did not seize the said shirt and has explained that he did not seize the said shirt because there was no other shirt for Lal Chand to wear. The witness has deposed that on 24.09.2012 Bijender was called by sending State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 44 a constable to him and he did not serve any notice to Bijender for joining the investigation proceedings from police post in the official vehicle (ERV) at about 10.00 AM and reached at the DDA park at about 10.45 AM. Witness has further deposed that 5­7 public persons were present in the park and he did not ask those public persons to join the investigations. According to him, Bijender pointed out the accused Arun @ Bhoot at a distance of about 20 meters and all the police officials were in police uniform. Witness has admitted that there is a residential area near the park and has further deposed that there was a boundary wall of about 3­4 feet of the DDA Park. He has also admitted that there was no specific identification mark on the recovered currency notes of Rs.2000/­ and also the currency notes belonging to victim Bijender. Witness has further deposed that Bijender did not disclose the currency notes numbers or any specific identification mark to the Investigating Officer before any recovery. According to him, accused Arun @ Bhoot ran upto a distance of about 5­7 steps when he was overpowered by them. He has explained that the writing work was done regarding the accused Arun @ Bhoot while keeping the papers on bonnet of vehicle. Witness has further deposed that disclosure statement of Arun @ Bhoot was recorded while sitting inside the vehicle which was parked in DDA Park. According to the witness the vehicle was parked inside the park and he did not make any specific identification mark on the recovered currency notes and it took about State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 45 five minutes in preparing the pullanda of currency notes. According to him, they remained at the DDA Park till 2.00 ­2.15PM. He has denied the suggestion that he did not conduct the investigation in this case in a fair and proper manner. The witness has further denied the suggestion that signatures of public witnesses were obtained on various documents subsequently or that they had not join the investigation. Witness has further deposed that they reached at the house of accused Mohan Paswan on foot at the instance of accused Jitender at about 8.15AM and Chacha of accused Mohan Paswan was found present at his house and one or two family members were also present there but he did not know their names. According to him, he had asked some neighbours to join the investigation but they refused and he did not serve any legal notice and the house of Mohan Paswan was a pucca and was double storied and he alongwith HC Ashok apprehended accused Mohan Paswan. (35) Witness has denied the suggestion that accused Mohan Paswan has been falsely implicated in this case or that the alleged recovery of the currency notes has been planted upon him. He has further denied the suggestion that Rs.10,000/­ were taken from the family members of the accused or that the same were planted upon him. Witness has further denied the suggestion that nothing was recovered from accused Arun @ Bhoot or that the thumb impression of Arun @ Bhoot were obtained on the blank papers which were later on converted into incriminating documents.

State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 46 STATEMENT OF ACCUSED & DEFENCE EVIDENCE (36) After completion of the prosecution evidence, the statement of the accused Jitender @ Pinki, Mohan Paswan, Atul @ Chawal and Arun @ Bhoot was recorded under Section 313 Cr.P.C. wherein all incriminating evidence was put to them which they denied. All the accused have stated that they are innocent and falsely implicated. According to them they have nothing to do with the alleged incident and nothing was recovered from their possession. None of the accused have examined any witness in defence.

FINDINGS:

(37) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsels. I have also considered the testimonies of various witnesses examined by the prosecution and memorandum of arguments filed on behalf of the accused. My findings are as under:

Promptness in Registration of FIR:

(38) The case of the prosecution is that three incidents of recovery took place in quick succession one after the other on 22.9.2012 at around 7:00 AM when three truck drivers parked their trucks in the area were robbed of their cash by the accused persons on the point of knife. It is alleged that soon after the incident the PCR call was made and after the statement of Om Prakash was recorded after which the State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 47 victims along with the police officials went towards the area where the accused had escaped i.e. to Machhli Market, Wazirpur Industrial Area.

It is there that the accused were spotted by the victims and pointed out to police and while other managed to escape one of them i.e. accused Jitender @ Pinki was apprehended after a chase and soon after the other accused Mohan Paswan, Atul @ Chawal and Arun @ Bhoot were also apprehended by the police and the robbed amount recovered from their possession. All this happened immediately after the incident within a matter of few hours and hence there being no chances of any manipulation & fabrications.

(39) Before coming to the facts of the case in hand, I may observe it is a settled law that the promptness in lodging report justifies the inference in the circumstance of the case that the report was not a concocted story. Prompt lodging of FIR is supposed to be true version without any addition, embellishment and concoction. The chances of missing links, outside influence, after thought and additions are removed where memory is fresh and information is given without any loss of time. Where soon after occurrence FIR is lodged, it is difficult to believe that false story was cooked up (Ref.: Bhag Singh Vs. State of Punjab reported in 1971 Cri. LJ 903).

(40) Applying the above settled principle of law to the facts of present case, it is evident that the incident took place on 22.9.2012 at around 7:00 AM and PCR call was made at around 7:24 ­7:25 AM and State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 48 then information was passed on to the local police at about 7:45 AM vide DD No. 8 PP and the police immediately reached the spot and accompanied the victims to the area where the accused had run away from where two accused were apprehended (i.e. Jitender @ Pinki and Mohan Paswan) on pointing out of victims and pursuant to the same FIR was registered at about 12:15 hours. The names of accused Jitender @ Pinki and Mohan Paswan find specifically mention in the FIR and after the registration of the FIR, the police along with the victims went to search the other accused and soon thereafter within a fee hours the accused Arun @ Bhoot and Atul @ Chawal were apprehended and Rs. 30,000/­ and Rs.2,000/­ respectively were recovered from their possession belonging to the victims. It is this promptness in registration of the FIR coupled with the apprehension of the accused immediately after the incident along with stolen property which lends authenticity and credibility to the prosecution version.

Ocular Evidence:

(41) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspect connected with the offence, there is no reason to reject their testimonies. State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 49 (42) The present case of the prosecution rests upon the testimonies of victims namely Om Prakash (PW5), Bijender (PW6) and Lal Chand (PW7) who are the drivers of the three trucks which were parked within the jurisdiction of Police Station Ashok Vihar in front of Merry Maker Banquet Hall and when the incident of armed robbery had taken place.

(43) Coming first to the testimony of Om Prakash (PW5). He is the driver of truck bearing No. HR­73­1066. In his testimony not only he proved the incident, but also identified the accused persons and the recovery effected from their possession. The relevant portion of his testimony is as under:

"........ I am residing at the aforementioned address along with my family comprising of my father, wife, three daughters and one son. I am an agriculturist but I am also into transport business and I am plying two trucks under the name and style of Om Parkash Transport which business I am running from my residential address itself. My vehicles are plying in Delhi, Indoor, Bhopal, Pitampur all in MP. In the intervening night of 21/22.09.2012 I was in my vehicle i.e. truck make TATA 2518 PC bearing No. HR­73­1066 which is a ten tyre truck. I was present in the truck along with my conductor Vineet Sharma and had come from MP. The vehicle was attached to Delhi MP Bombay fright carriers. We had parked the vehicle at Wazirpur at JP Dharamkanta, WPIA, near a banquet hall. While we were sleeping inside the vehicle at about 7 AM one person entered the vehicle after breaking the State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 50 side window from the conductor side and he kept knife on my chest while I was still sleeping and told me to give him all my belongings "paisa nikal kya hai tere pas". In the meanwhile three more persons entered into the truck. Out of these persons somebody held my hand, somebody held me by foot and some person removed my belongings including cash to the tune of Rs 4700/­ from the pocket of my pant. Out of these currency notes most of them were of the denomination of Rs 500/­ only two currency notes were in the denomination of Rs 100/­. One of the persons while going had threatened me not to come out from the vehicle"gari se nikalna nahi, nahi to mar denge". These threats were given to me by one person who was having a knife in his hand. On court question : Out of these four boys only one was carrying a knife with which he had threatened me, other three were unarmed.

After 15 minutes when I came out from my truck I found that there was another truck parked behind my truck which was a 12 tyre TATA truck, make I do not recollect but its number was 5839. When I came out and raised an alarm that my belongings had been taken, the driver of the said truck which was parked behind my truck also came out and told me that even he had also been robbed of his belongings and cash to the tune of Rs 47 thousand. I came to know that the name of the said driver was Bijender who was a resident of district Mathura, UP. Then Bijender made a 100 number call to the police and the police gypsy came and we informed them about the incident. We also told the police officials that the said persons had gone State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 51 towards the Machhli market, WPIA. In the mean while the local police had also come. I and Bijender then joined the police officers in the search of the accused and we went to Machhli market WPIA which is adjoining the railway lines. Some boys were sitting on the railway lines and on seeing us with the police, they suddenly started running and we all ran after them. Out of them I could identify one boy who had put knife on my neck. After a short chase we were able to apprehend the one boy which is the said boy, whose name we later on came to know was Pinki and was the same boy who had put the knife on my neck. After he was apprehended the police interrogated him and he gave his name as Pinki and he also disclosed that he was residing at Wazirpur. From his search, a knife was recovered. During interrogation he also disclosed that they were four boys and the name of his other three associates who had committed the robbery were Mohan Paswan, Arun and Chawal. The police in my presence prepared the sketch of the knife and thereafter measured the same. The accused Jitender @ Pinki was then arrested vide memo EX PW 5/A bearing my signatures at point A. His personal search was taken vide EX PW 5/B bearing my signatures at point A. The sketch of the knife is EX PW 5/C and thereafter Investigating Officer seized the said knife after converting the same into a pullanda and the same was seized vide memo EX PW 5/D bearing my signatures at point A. The disclosure statement of the accused Jitender @ Pinki was also recorded vide EX PW 5/E bearing my signatures at point A. I can identify the accused Pinki if shown to me.

State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 52 At this stage, witness has correctly identified the accused Pinki (Jitender) by pointing out towards him and also by name, who is present in the court today in judicial custody.

The accused Jitender @ Pinki told us that Mohan Paswan was living in the jhuggie cluster near the Machhli market and he led us to the Machhli market Juggies. There the accused led us inside the jhuggie of Mohan Paswan where he was present and I identified him as one of the boys who was involved in the incident and had held my hands. The police apprehended the said boy and conducted his personal search. From the pocket of his pant currency notes to the tune of Rs.10 thousand were recovered. The arrest memo of the accused Mohan Paswan is EX PW 5/F bearing my signatures at points A. The personal search memo of the accused Mohan Paswan is EX PW 5/G bearing my signatures at point A. The currency notes which were recovered from the possession of the accused Mohan Paswan were duly converted into pullanda with the help of cloth and thereafter seized vide memo EX PW 5/H bearing my signatures at point A. The accused Mohan Paswan was interrogated by the police and he disclosed about the incident. His disclosure statement was recorded by the police vide EX PW 5/I bearing my signatures at point A. I can identify accused Mohan Paswan, he is present in the court (correctly identified by the witness).

Thereafter both Jitender @ Pinki and Mohan Paswan took us to village Burari where he pointed out towards one boy sitting in front of a shop as Chawal as one of their associates who was State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 53 involved in the crime. The said boy was apprehended by the police and I identified him as one of the assailants who had caught hold of my hands and legs at the time of the incident. The accused was thereafter arrested vide memo EX PW 5/J bearing my signatures at point A and his persons search was conducted vide memo EX PW 5/K bearing my signatures at point A. From his personal search Rs.30 thousand total were recovered, i.e. from one pocket Rs 4,700/­ were recovered and from the other pocket the remaining amount would recovered. The said amount was converted into a pullanda and seized vide memo EX PW 5/L bearing my signatures at point A. On interrogation he disclosed his involvement in the crime and also disclosed that the said amount was the one which they had robbed from Bijender the driver of the other truck. His disclosure statement is EX PW 5/M bearing my signatures at point A. I can identify the accused Chawal. At this stage has correctly identified the accused the accused Chawal @ Atul by pointing out towards him and also by the name of Chawal.

Thereafter we returned to the spot of the incident at about 1­ 1:30 PM where my truck was parked. The Investigating Officer recorded my statement vide EX PW 5/N bearing my signatures at point A, he then prepared the site plan at my instance which plan is EX PW 5/O. I was then relieved and I went back to my house. On the asking of the police I had also handed over the documents of my truck i.e. copy of the RC, photocopy of receipt, photocopy of builty and copy of the bill which was seized vide memo EX PW 5/P State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 54 bearing my signatures at point A. After two days I was called to the police chowki Wazirpur where one boy was present and I identified as the fourth assailant who had caught hold of my hands and legs. I can identify him in the court. At this stage, the witness has correctly identified the accused Arun @ Bhoot by pointing out towards him.

I had received back the currency notes from the court. I can also identify the knife if shown to me.

At this stage the MHC(M) has produced one sealed pullanda duly sealed with the seal of VP. Same is opened after breaking the seal and one button dar knife is taken out and shown to the witness who has correctly identified the same which was used by accused Jitender @ Pinki during the incident. The said knife is EX P1. Court observation : The knife is matching with the sketch EX PW 5/C. At this stage the photographs of the two sealed pullandas and currency notes are shown to the witness. The witness has identified the pullanda as having been prepared in his presence. The photographs of the pullandas are EX P2 and EX P3. The photograph of the currency notes which he has taken on superdari is EX P4.

At this stage, Ld. APP for the state, seeks permission to put leading questions to the witness as he is not giving the complete details.

Heard, Permission granted.

It is correct that Vineet Sharma is not the conductor of the truck and is the owner of the company with which the truck was attached with its State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 55 office at BG­562, Sanjay Gandhi Transport Nagar. It is correct that I was bringing iron plates loaded in the truck from MP Mittal transport company which I was to deliver at A­96 group WPIA Ashok Vihar. Vol. I have forgotten these facts on account of lapse of time......."

(44) The above witness has been exhaustively cross examined at length. He has conceded that there were two to three persons who were with him in the truck which includes his conductor and cleaner namely Sharma and Naresh. He admits that they did not raise any alarm and has explained that these persons were sleeping in the cabin of the truck and were hence not aware of the happening with the victim. He has also explained that in the process of snatching, his clothes had not been torn because three of these boys did not allow him to stand and had over powered him while he was in a lying position. He has further explained that it was after 10­15 minutes of the incident when he came to know that the other persons had also been similarly robbed. He has further claimed that the call on 100 number was made after about half an hour. (45) Bijender Singh (PW6) has corroborated what has been stated by the complainant Om Prakash (PW5). He is the driver of truck Turbo 3118 bearing No. RJ 11GA 5839 which was parked behind the truck of Om Prakash. According to him, on 22.9.2012 at about 4:30 AM he reached Delhi and parked the truck in front of Merry Maker Banquet Hall, Wazirpur Industrial Area after which he slept in the truck and his conduct also slept backside portion of the truck over the iron State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 56 strips. In his testimony he has not only proved the incident but has also identified the accused persons who were apprehended at his instance and pointing out and has also identified the currency notes recovered from the possession of the accused. The relevant portion of his testimony is as under:

"....... I am residing at the aforementioned address along with my family comprising of my mother , wife, four daughters and two sons. I am a agriculturist but I am also into transport business and I used to ply truck. I used to drive my Turbo Truck 3118 bearing no. RJ 11GA 5839.

On 18.09.2012 my driver Hans Raj loaded the above said truck at Pitampur, Distt. Indore, MP with iron strips and handed over the truck to me on 21.09.2012 at Mathura and thereafter I drove the above said truck to WPIA, Ashok Vihar, Delhi. On 22.09.2012 at about 4.30AM I reached at Delhi and parked my above said truck infront of Merry Maker Banquet Hall, Wazirpur Industrial Area, at a distance of 100 feet from the JP Dharam Kanta. Thereafter I slept in the truck and my conductor also slept on the backside of the truck over the iron strips. At about 7 AM one person entered the vehicle from the conductor side window and he kept knife on my chest while I was still sleeping. One more person also entered the truck from conductor side window and two more persons entered the truck from driver side. They caught hold me by my hands and legs and told me to give him all my belongings by saying"paise nikalo"

and when I protested, the person who was holding the knife, threatened me to be killed if I raised any State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 57 alarm or I protested. They took out my Rs. 47,000/­ from inside of my pant. Out of these currency notes 43,000/­ were in the denomination of Rs.500/­ and four currency notes of Rs.1000/­ and after committing the robbery of my above said Rs.

47,000/­ and went back side of my truck and they told to me not to raise any alarm and not to come out of the truck otherwise they would kill me.

Thereafter all the above said assailants went towards one TATA 407 which was parked behind my truck and they also entered in the TATA 407 and they also overpowered the truck driver of TATA 407 and robbed two bags of steel utensils and ran away towards the Machchi Market Jhugies Area.

Then I came to know that the truck driver Om Prakash was also looted by the above said persons.Truck of Om Prakash was parked ahead of my Truck. Thereafter, I talked with Om Prakash and Lal Chand driver of TATA 407 vehicle. I made a 100 number call to the police from the mobile phone of the another person who was present there and the police gypsy came and we informed them about the incident. We also told the police officials that the said persons had gone towards the Machhli market, WPIA. In the mean while the local police had also come. I, Om Prakash and Lal Chand joined the police officers in the search of the accused and we had seen the assailants on the fly over but on seeing the police, assailants ran towards the Machchli market WPIA which and thereafter we went to Machchi Market Jhuggie area adjoining the railway lines. Some boys were sitting on the railway lines and on seeing us with the police, they suddenly started running and we all State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 58 ran after them. Out of them I could identify one boy who had put knife on my chest. After a short chase we were able to apprehend the one boy which is the said boy, whose name we later on came to know was Jitender @ Pinki and was the same boy who had put the knife on my chest. After he was apprehended the police interrogated him and he gave his name as Jitender @ Pinki and he also disclosed that he was residing at Wazirpur. From his search, a buttondar knife was recovered. During interrogation he also disclosed that they were four boys and the name of his other three associates who had committed the robbery were Mohan Paswan, Arun @ Bhoot and Atul @ Chawal. The police in my presence prepared the sketch of the knife and thereafter measured the same. The accused Jitender @ Pinki was then arrested vide memo already EX PW 5/A bearing my signatures at point B. His personal search was taken vide memo already EX PW 5/B bearing my signatures at point B. The sketch of the knife is already EX PW 5/C and thereafter Investigating Officer seized the said knife after converting the same into a pullanda and the same was seized vide memo already EX PW 5/D bearing my signatures at point B. The disclosure statement of the accused Jitender @ Pinki was also recorded vide already EX PW 5/E bearing my signatures at point B. I can identify the accused Pinki if shown to me.

At this stage, witness has correctly identified the accused Jitender @Pinky by pointing out towards him and also by name, who is present in the court today in judicial custody.

State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 59 The accused Jitender @ Pinki told us that Mohan Paswan was living in the jhuggie cluster near the machchi market and he led us to the Machhli market Juggies. There the accused led us inside the jhuggie of Mohan Paswan where he was present and I identified him as one of the boys who was involved in the incident and had held my legs. The police apprehended the said boy and conducted his personal search. From the pocket of his pant currency notes to the tune of Rs. 10 thousand were recovered. The arrest memo of the accused Mohan Paswan is already EX PW 5/F bearing my signatures at points B. The personal search memo of the accused Mohan Paswan is already EX PW 5/G bearing my signatures at point B. The currency notes which were recovered from the possession of the accused Mohan Paswan were duly converted into pullanda with the help of cloth and thereafter seized vide memo already EX PW 5/H bearing my signatures at point B. The accused Mohan Paswan was interrogated by the police and he disclosed about the incident. His disclosure statement was recorded by the police vide already EX PW 5/I bearing my signatures at point B. I can identify accused Mohan Paswan, he is present in the court (correctly identified by the witness). Thereafter we returned back at the spot and police recorded the statement of Om Prakash and police also made inquiries from me and Lal Chand and an FIR was got registered.

On the same day in the evening time I alongwith Om Prakash and Lal Chand reached at the police post WPIA, Ashok Vihar, Delhi and thereafter at the instance of the accused Mohan State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 60 Paswan and Jitender @ Pinki one person, was apprehended near Burari who disclosed his name as Atul @ Chawal who took away my money forcibly from inside of my pant. Police interrogated him and he confessed about his involvement and I identified him as the person who had removed my money from inside of my pant at the time of incident. The accused was thereafter arrested vide memo already EX PW 5/J bearing my signatures at point B and his persons search was conducted vide memo already EX PW 5/K bearing my signatures at point B. From his personal search Rs.30 thousand total were recovered, i.e. from one pocket Rs 4,700/­ were recovered and from the other pocket the remaining amount of Rs. 25,300/­ was recovered. The said amount was converted into a pullanda and seized vide memo already EX PW 5/L bearing my signatures at point B. On interrogation he disclosed his involvement in the crime and also disclosed that the said amount was the one which they had robbed from me. His disclosure statement is already EX PW 5/M bearing my signatures at point B. I can identify the accused Chawal. At this stage has correctly identified the accused the accused Chawal @ Atul by pointing out towards him and also by the name of Chawal.

I was then relieved and I returned back to my truck. On the asking of the police I had also handed over the documents of my truck i.e. copy of the RC, photocopy of receipt, photocopy of builty and copy of the bill which was seized vide memo EX PW 6/A bearing my signatures at point A and the documents are EX PW 6/B­1 to EX PW 6/B­5.

State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 61 Thereafter we unloaded our truck in the night of 23.09.2012.

On 24.09.12 I went to the police post Wazirpur Ashok Vihar, Delhi where I along with the police officials, Om Parkash and three accused persons namely Jitender @ Pinky, Mohan Paswan and Atul @ Chawal reached near a bagh near railway line and at the instance of three arrested accused, the accused Arun @ Bhoot was apprehended and who was interrogated by the IO.

He also confessed about his involvement in the present case. I identified the accused Arun @ Bhoot who had caught hold me with my legs. Rs.

two thousand were recovered from his possession. Investigating Officer arrested accused Arun vide arrest memo EX PW 6/C bearing my signatures at point A. His personal search was also conducted vide memo EX PW 6/D bearing my signatures at point A. His disclosure statement was recorded by the police vide EX PW6/E bearing my signatures at point A. Rupees two thousand were sealed in a cloth pullanda by the police and seized the same vide seizure memo EX PW 6/F bearing my signatures at point A. I can identify him in the court. At this stage, the witness has correctly identified the accused Arun @ Bhoot by pointing out towards him.

I had received Rs.37 thousand three hundred from the robbed money from the court. I can also identify the knife if shown to me.

At this stage the MHC(M) has produced one unsealed pullanda which was already opened during the examination of previous witness and one buttondar knife is taken out and shown to the State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 62 witness who correctly identified the same which was used by accused Jitender @ Pinki during the incident. The said knife is already EX P1. Court observation : The knife is matching with the sketch EX PW 5/C. At this stage the photographs of the two sealed pullandas and currency notes are shown to the witness. The witness has identified the pullanda as having been prepared in his presence. The photographs of the pullandas are already EX P2 and already EX P3. The photograph of the currency notes which were recovered from the accused persons and taken on superdari by Om Parkash is already EX P4. The photograph of currency notes which were recovered from the accused persons and taken by me on superdari are shown in the EX P5.........."

(46) In his cross­examination this witness has admitted that his conductor was present in the back side of the truck and was sleeping. He has explained that Om Parkash had parked his truck ahead of his truck at a distance of 5­6 feet and his truck was not parked face to face with the truck of Om Prakash and behind his truck was the truck of Lal Chand. He has explained that his pant was torn during the incident which pant he had also shown to the police. According to him he had made call at 100 number after about 45 minutes of the incident. (47) Similarly, Lal Chand (PW7) is the third truck driver who had parked his truck Tata 407 bearing No. RJ 02­G­6954 behind the truck of Bijender(PW6). He has corroborated the testimonies of Om State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 63 Prakash (PW5) and Bijender(PW6) to the extent that on 22.9.2012 at about 5:00 AM he had parked his truck in front of Merry Maker Banquet Hall, Ashok Vihar, Wazirpur Industrial Area, and was sleeping in the truck itself when the accused persons entered his truck and asked for money. However, since he was not carrying any money with him they took two bags of steel utensils and ran away. In his testimony he has not only proved the incident but has also identified the accused persons. The relevant portion of his testimony is as under:

"......... I am a driver by profession and used to drive TATA 407 bearing No. RJ02 G 6954 owned by one Mr. Subhash who is a resident of my villag. On 21.09.2012 we proceeded towards Delhi from Neerana with goods containing steel utensils and on 22.09.2012 we reached at Delhi at early morning time. At about 5.00AM we parked our vehicle at Wazirpur Industrial Area in front of the Merry Maker Banquet Hall, Ashok Vihar Delhi. I was sleeping in the vehicle at that time. One person whose name I came to know later on as Pinki, came inside of the vehicle and put knife on my neck and his two­three associates were standing outside of my vehicle. Pinki demanded money from me. I told that I was not having any money and told them that steel utensils have been loaded in our vehicle. Thereafter accused Pinki told to his associates to take away the steel utensils from our vehicle. Pinki and his associates took away two bags of steel utensils from my TATA 407 and ran away towards Machhli Market. I made call at 100 number. One police official came at the spot. Two­three other State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 64 truck drivers were also robbed by Pinki and his associates at the spot. Thereafter I alongwith two other victims namely Om Prakash and other victim and police official followed the above said assailants and Pinki was apprehended by us at Machhli Market. One knife was recovered from the possession of accused Pinki which was used by him while putting the same on my neck. Meanwhile other police officials also reached there. Thereafter at the instance of accused Pinki, accused Mohan Paswan was apprehended from the nearby jhuggi and Rs.10,000/­ were recovered from his possession and thereafter we returned back at the spot. Police seized the knife and also seized Rs.10,000/­ recovered from Mohan Paswan and both accused were arrested. In the evening time third accused namely Chawal was arrested from Sant Nagar, Burari and Rs.30,000/­ were recovered from his possession and the same were also seized by the police. The sketch of the knife Ex.PW5/C was prepared in my presence and the knife was seized by police vide Ex.PW5/D bearing my signatures at point C. Accused Jitender @ Pinki was arrested vide Ex.PW5/A bearing my signatures at point C and his personal search was taken vide Ex.PW5/B bearing my signatures at point C. Accused Mohan Paswan was sarrested vide Ex.PW5/F bearing my signatures at point C, his personal search was taken taken vide Ex.PW5/G bearing my signatures at point C. Accused Jitender was interrogated and his disclosure statement was recorded vide Ex.PW5/E bearing my signatures at point C, Rs.10,000/­ were recovered from accused Mohan Paswan vide Ex.PW5/H bearing my signatures at point C. His State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 65 disclosure statement was recorded vide Ex.PW5/I bearing my signatures at point C. Accused Atul @ Chawal was arrested vide Ex.PW5/J bearing my signatures at point C, his personal search was taken vide Ex.PW5/K bearing my signatures at point C. Rs. 30,000/­ were recovered from his possession vide Ex.PW5/L bearing my signatures at point C. Third associate of accused Pinki is also present in the court today. Witness pointed out towards accused Arun @ Bhoot and identified him correctly.

I can identify the accused said Pinki, Mohan Paswan and Chawal if shown to me.

At this stage witness correctly identified accused Jitender @ Pinki, Mohan Paswan and Atul @ Chawal.

I can identify the seized articles if shown to me.

AT this stage MHC(M) produced one sealed pullanda sealed with the seal of court and the same is opened and one buttondar knife is taken out and the same is shown to the witness who identified the same used by accused Pinki and recovered from his possession. The knife is already Ex.P­1 and the photographs of pullandas Ex.P­2 and Ex.P­3 and photographs of currency notes Ex.P­4 are shown to the witness who identified the pullandas prepared in his presence and also identified the currency notes in the photographs recovered in his presence........"

(48) In his cross examination this witness Lal Chand has explained that there was no helper with him at the time of incident. He has also explained that the accused Jitender entered in the cabin from State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 66 side of conduct and put the knife on his neck and he had no time to raise an alarm. He has further explained that he made call at 100 number from his mobile bearing no. 9250650738 after about fifteen to twenty minutes of the incident and informed the police and after about 15­20 minutes of his call, the accused Jitender was apprehended by the police after a short chase from the Machhli Market at a distance of 150­200 paces from the spot of the incident.

(49) All the three victims have corroborated each other on material particulars. They have identified the accused Jitender @ Pinki as the boy who was carrying a knife. Om Prakash has identified the accused Jitender @ Pinki as the boy who had kept the knife Ex.P1 on him and Mohan Paswan as the person who was found in possession of currency notes of Rs.10,000/­, Atul as the person who had caught hold of his hands and legs and had been apprehended after few hours of the incident at the instance of Jitender and Mohan and from his possession Rs.30,000/­ were recovered. He has also identified the accused Arun @ Bhoot as one of the assailants who caught hold of his neck. (50) Similarly, Bijender (PW6) has identified the accused Jitender @ Pinki as the boy who had kept knife on his chest. Victim Lal Chand (PW7) too has identified the accused Jitender @ Pinki as the boy who had put knife on his neck. According to Bijender, the accused Mohan Paswan and Arun were the person who had caught hold of his legs. All the three witnesses have identified and confirmed the recovery State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 67 of knife from the possession of Jitender Ex.P1 as the same which was used by Jitender during commission of the offence. They have corroborated each other on recovery of Rs.10,000/­ from Mohan Paswan who had been apprehended at the instance of accused Jitender. They have further corroborated each other on the apprehension of accused Atul @ Chawal and also to the extent of recovery stolen amount of Rs. 30,000/­ from his possession which they identified as the robbed amount. Both Bijender and Lal Chand have identified the accused Arun as the assailants who was apprehended at the instance of Mohan, Jitender and Atul and from whose possession Rs.2,000/­ were recovered.

(51) Further, the disclosure statements made by the accused persons on their apprehension and the recovery of the stolen amount at the time of their apprehension within few hours of the incident stands established and finds due corroboration and confirmation from the testimonies of HC Ashok (PW8), Ct. Sanjay (PW9) and SI Ved Prakash (PW10). There are no material contradictions in the testimonies of victims which find due corroboration and support from the testimonies of police officials in respect of the identity of the accused persons and also in respect of the recovery of the stolen amount. All the victims are truck drivers and were unknown to each other prior to the incident. They had parked their respective trucks in the same area i.e. Wazirpur Industrial Area Opposite Merry Maker Banquet Hall one behind the State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 68 other and it was only after the incident of robbery when the accused persons robbed them of their belongings on the point of knife, that they came to be known to each other and collectively made a call to the police and also assisted the police in tracing out and in identifying the accused.

(52) It stands established that from the testimonies of the victims that they had identified all four persons involved in the incident who were apprehended on pointing out of the victims. Further, the prosecution has not been able to confirm and establish the involvement of the fifth person (Babloo). It is only the accused persons who in their disclosure statements talk about the involvement of one Babloo which disclosure is not admissible in evidence to that extent. Further, I may note that all the victims only talk about involvement of three to four persons and to not confirm the presence of fifth person. Hence, in this background only the provisions of Section 392 Indian Penal Code would apply and not the provisions of Section 395 Indian Penal Code. (53) Further, use of knife while committing the robbery is by the accused Jitender @ Pinki and not by other accused namely Mohan Paswan, Atul and Arun who were unarmed and hence only the accused Jitender @ Pinki is liable for the offence under Section 392 read with 397 Indian Penal Code whereas the other accused namely Mohan Paswan, Atul and Arun would be liable for the offence under Section 392 Indian Penal Code.

State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 69 (54) In so far as the charge under Section 412 IPC against the accused Arun @ Bhoot, Atul @ Chawal and Mohan Paswan is concerned, since they have been identified as the assailants and were apprehended within hours of the incident soon thereafter hence technically the provisions of Section 411 or Section 412 Indian Penal Code would not be separately made out as the ingredients of Section 411 / 412 Indian Penal Code are covered within the offence of Robbery as defined under Section 390 Indian Penal Code, for which the accused have been held guilty.

Charge under Section 25/54/59 Arms Act against Jitender @ Pinki:

(55) Case of the prosecution is that it is the accused Jitender @ Pinki who had used the knife upon the victims while committing the robbery and this fact stands established from the testimonies of all three victims i.e. Om Prakash (PW5), Bijender (PW6) and Lal Chand (PW7), which knife Ex.P1 was recovered from the possession of accused Jitender @ Pinki minutes after the incident and all three victims have identified the same. The sketch of the knife Ex.P1 prepared by the Investigating Officer matched with the knife produced before the court.

The measurement of the knife Ex.P1 shows that its total length was 23.5 cms, length of blade was 11 cms, width of blade was 2.5 cms and length of handle was 12.5. cms. It is writ large that the mere possession of the same is violative of the Gazette Notification of the Government of NCT State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 70 of Delhi and hence the accused Jitender @ Pinki is also liable for the offence under Section 25/54/59 Arms Act. Further, since the use of knife stands covered under Section 397 IPC for which the accused Jitender @ Pinki has already been held guilty and hence is not being separately held guilty for the offence under Section 27 Arms Act. Recovery pursuant to the disclosure statements of the accused:

(56) The case of the prosecution is that after committing the incident the assailants ran away towards Fish Market on which call was made to the police. Pursuant to DD No. 7PP HC Ashok reached the spot and he along with the victims namely Om Prakash, Bijender and Lal Chand went towards Fish Market in search of the assailants. There four­five persons were present under the Azadpur Bridge and the victims identified them as the assailants who ran away from there. HC Ashok and the victims chased the said persons and apprehended one of the assailant who disclosed his name as Jitender @ Pinki from whose possession a buttondar knife was recovered from the right pocket of his pant which was identified by the victims as the same which the accused used in the incident of robbery with him. Further, pursuant to the disclosure statement of the accused Jitender @ Pinki they all went towards the Satsang Colony jhuggi area alongwith accused Jitender @ Pinki and at the instance of Jitender @ Pinki the accused Mohan Paswan was apprehended from whose possession Rs.10,000/­ were State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 71 recovered which the victim Bijender identified as belonging to him and robbed by the assailants and all three victims identified accused Mohan Paswan. Thereafter pursuant to the disclosure statements of accused Jitender @ Pinki and Mohan Paswan, the police officials along with the victims at Sant Nagar Burari, Gali No. 82 where at the instance of both the above accused, the accused Atul @ Chawal was apprehended from whose possession Rs.30,000/­ (i.e. Rs.25,300/­ in one packet and Rs.

4,700/­ from another pocket) were recovered. Further, on 24.09.2012 the Investigating Officer SI Ved Prakash, HC Badar Singh, Ct. Sanjay and the victim Bijender along with the three arrested accused persons reached at DDA Flats, Jailor Wala Bagh, Ashok Vihar, Phase­II Delhi at about 11.00AM where at the instance of the accused persons, accused Arun @ Bhoot was apprehended from whose possession four currency notes in denomination of Rs.500 (Total Rs. 2000/­) were recovered. The Ld. Addl. PP for the State has vehemently argued that the disclosure statements of the accused persons are admissible in evidence whereas according to the Ld. Defence Counsels the same are inadmissible in evidence being hit by Section 25 of Indian Evidence Act. (57) I have considered the rival contentions. Before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of information State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 72 received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.

(58) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:

(a) Anything, state of things, or relation of things, or capable of being perceived by the senses,

(b) Any mental condition of which any person is conscious. (59) It further provides five illustrations as to what would constitute a fact which are as under:

1. That there are certain objects arranged in a certain order in a certain place, is a fact

2. That a man heard or saw something, is a fact.

3. That a man said certain words, is a fact.

4. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.

5. That a man has a certain reputation, is a fact.

(60) A co­joint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 73 discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles". (61) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under Section 27 of Evidence Act or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. King­ Emperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered Section 27 of the Indian Evidence Act, as under:­ State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 74 "..... Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......"

"... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S. 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information. . . .. ...... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."

"........Information as to past user, or the past history of the object produced is not related to its discovery State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 75 in the setting in which it is discovered.

This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"

(62) After considering the settled principles the Hon'ble Apex Court observed as under:

"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 76 statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 77 Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence.

(63) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:

"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.

The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence....."

State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 78 (64) In the said case the Hon'ble Supreme Court further went to explain that "..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"

(65) In the recent past the Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact"

should be read with the definition of "fact" as contained in Section 3 of State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 79 the Evidence Act which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be confirmatory in character guaranteeing the truth of the information given to which facts the police officer had no access earlier which also includes recovery of material object. The Hon'ble Court further observed that so much of the information as relates distinctly to the fact thereby discovered is admissible. (66) Applying the settled principles of law to the facts of the present case it is evident that none of the victims namely Om Prakash (PW5), Bijender (PW6) and Lal Chand (PW7) were previously known to the assailants nor aware of their addresses. Therefore, the Investigating Agency was not aware of the identity of the assailants and the places where they could be located and found. It was only when HC Ashok along with the victims went towards Fish Market that the victims pointed out towards four­five boys on which first of all the accused Jitender @ Pinki was apprehended from under the Azadpur Bridge near railway lines from whose possession a buttondar knife was recovered after the victims identified him as one of the assailants. It was also not within the knowledge of the Investigating Agency that four persons were involved in the robbery nor the names, addresses or other details of the State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 80 assailants were known. It was only on the basis of the disclosure statement of accused Jitender @ Pinki which is Ex.PW5/E wherein he stated that he could get apprehend the other assailants and could also get recover the robbed money and utensils from them, that these details came to be known. It is this, which is discovery of the relevant fact.

For the first time the Investigating Agency came to know about the names and addresses of the various assailants after Jitender @ Pinki was apprehended and he informed them of the same. At the instance of accused Jitender @ Pinki, the accused Mohan Paswan was apprehended from Satsang Colony Jhuggies and Rs.10,000/­ recovered from his possession which the victim Bijender identified as belonging to him. It was the accused Jitender @ Pinki who led the police and victims to the house of Mohan Paswan who was identified there itself by the victims who were accompanying the police and accused Jitender @ Pinki. Further, pursuant to their disclosure statement both the accused Jitender @ Pinki and Mohan Paswan got the accused Atul @ Chawal apprehended from Sant Nagar Burari, Gali No.82 and Rs.30,000/­ (i.e. Rs.25,300/­ in one packet and Rs.4,700/­ from another pocket) were recovered from his possession which the accused Atul @ Chawal disclosed to be the robbed money which cash was duly identified by the victims at the spot itself as the stolen amount. Neither the police nor the victims were aware either aware of the details relating to identity and whereabouts of the accused Atul @ Chawal and it is only after the State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 81 accused Jitender @ Pinki and Mohan Paswan disclosed about the same and led them to Atul @ Chawal that he could be apprehended after he was identified by the victims as one of the assailants. This is a disclosure of fact as contemplated under Section 27 of the Evidence Act. Again, on 24.09.2012 all the above arrested accused i.e. Jitender @ Pinki, Mohan Paswan and Atul @ Chawal got arrested their fourth associate namely Arun @ Bhoot from DDA Flats, Jailor Wala Bagh, Ashok Vihar, Phase­II Delhi and from his possession Rs.2,000/­ (four currency notes in denomination of Rs.500/­) were recovered. Neither the police nor the victims were aware of the details regarding the identity and whereabouts of the accused Arun @ Bhoot unless it was so disclosed to them by the accused Jitender @ Pinki, Mohan Paswan and Atul @ Chawal and the victims confirmed him to be the fourth assailant. This again is discovery of fact as contemplated under the Evidence Act and is admissible in evidence.

(67) Ld. Defence Counsels have vehemently argued that in so far as the the currency notes allegedly recovered from the possession of the accused persons is concerned, none of the victims have been able to tell the number of the said currency notes or the other details regarding identification marks etc. I have considered the submissions made before me and I may observe that it is a matter of common knowledge and experience that usually one does not even bother to check any serial numbers or identification marks and hence it is not possible to expect State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 82 people to remember the details and numbers of the currency notes in their possession or put a specific identity mark on each and every currency note in his possession in ordinary course. The victims have given the details of the denominations and have also identified the same immediately on this recovery soon after the incident and this in my view is sufficient.

(68) It has been established that the accused Mohan Paswan was found in possession of Rs.10,000/­; accused Atul @ Chawal was found in possession of Rs.30,000/­ and accused Arun @ Bhoot was found in possession of Rs.2,000/­ at the time of their apprehension. Considering the economic and financial background of the accused persons who are all the jhuggi dwellers belonging to poor families, it does not appear probable that they could have possessed the amount of cash as was recovered from their possession (particularly Mohan Paswan and Atul @ Chawal). They have failed to explain the possession of the cash amount allegedly recovered from their possession and in their statement under Section 313 Cr.P.C. they have simply denied the same. (69) The accused have no previous history of animosity with the victims nor they were known to the victims. Three robbery incidents had taken place and the victims are not known to each other previously. They have corroborated each other and assisted the police in search of the assailants and got them apprehended on the basis of their identity. Therefore, the possibility of the accused having been falsely implicated State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 83 appears to be remote.

(70) What turns on the fact that accused Jitender @ Pinki got apprehended his other associates who also got recovered the robbed amount, which was not in the knowledge of the police. This being the background I hereby hold that the discovery of the identity of the accused persons coupled with the recovery of the weapon of offence and the major portion of the robbed amount from their possession is a strong pointer towards the guilt of the accused persons. FINAL CONCLUSION:

(71) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre­requisites before conviction should be recorded, which are as under:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;

2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 84 consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

(72) Applying the above settled principles of law to the facts of present case, the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses. From the testimonies of the victims and other evidence on record the following facts stand established:

➢ That in the intervening night of 21­22.09.2012 the victim Om Prakash was in his truck make TATA 2518 PC bearing No. HR­73­1066 which was a ten tyre truck and was present in the truck along with Vineet Sharma who is the owner of the company with which the truck was attached with its office at BG­562, Sanjay Gandhi Transport Nagar. ➢ That they had parked their truck at Wazirpur at JP Dharamkanta, WPIA, near Merry Maker Banquet Hall. ➢ That while they were sleeping inside the vehicle, at about 7:00 AM one person entered the vehicle after breaking the side window from the side of conductor and kept a knife on the chest of Om Prakash while he was still sleeping and told him to hand over all his belongings "paisa nikal kya hai tere pas".

➢ That in the meanwhile three more persons entered into the truck and someone held his hand, someone held him by State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 85 foot and someone removed his belongings including cash to the tune of Rs.4,700/­ from the pocket of his pant. ➢ That while going one of the persons who was having a knife in his hand had threatened Om Prakash not to come out from the vehicle"gari se nikalna nahi, nahi to mar denge".

➢ That the victim Bijender Singh is into transport business and used to ply his Turbo Truck 3118 bearing no. RJ 11GA 5839.

➢ That on 18.90.2012 the driver of Bijender namely Hans Raj loaded the truck at Pitampur, Distt. Indore, MP with Iron Strips and handed over the truck to Bijender Singh on 21.09.2012 at Mathura after which Bijender Singh drove the above said truck to WPIA, Ashok Vihar, Delhi.

➢ That on 22.09.2012 at about 4:30 AM, Bijender Singh reached Delhi and parked his truck in front of Merry Maker Banquet Hall, Wazirpur Industrial Area, at a distance of 100 feet from JP Dharam Kanta.

➢ That Bijender Singh slept in the truck and his conductor also slept on the backside of the truck over the iron strips. ➢ That at about 7:00 AM one person entered the vehicle from the conductor side window and kept knife on the chest of Bijender Singh while he was still sleeping.

State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 86 ➢ That one more person also entered the truck from conductor side window and two more persons entered the truck from driver side and they all caught hold Bijender Singh by his hands and legs and told him to give him all his belongings by saying"paise nikalo".

➢ That when Bijender Singh protested the person who was holding the knife, threatened to kill him if he raised any alarm or he protested and they took out his Rs.47,000/­ from inside of the pant of Bijender Singh out of which currency notes 43,000/­ were in the denomination of Rs. 500/­ and four currency notes of Rs.1,000/­.

➢ That after committing robbery of Rs.47,000/­ the assailants went on the back side of the truck and asked Bijender Singh not to raise any alarm and also not to come out of the truck otherwise they would kill him.

➢ That thereafter all the assailants went towards one TATA 407 which was parked behind the truck of Bijender Singh and also entered in the said TATA 407 after which they overpowered the truck driver of TATA 407 and robbed two bags of steel utensils and ran away towards the Machchi Market Jhugies Area.

➢ That victim Lal Chand is a driver by profession who used to drive TATA 407 bearing No. RJ02 G 6954 owned by one State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 87 Subhash.

➢ That on 21.09.2012 Lal Chand and Subhash proceeded towards Delhi from Neerana with goods containing steel utensils and on 22.09.2012 they reached at Delhi at early morning time.

➢ That at about 5:00 AM they parked their vehicle at Wazirpur Industrial Area in front of the Merry Maker Banquet Hall, Ashok Vihar Delhi.

➢ That Lal Chand was sleeping in the vehicle at that time when one person whose name he came to know later on was Pinki, came inside of the vehicle and put knife on his neck and his two­three associates were standing outside of his vehicle and Pinki demanded money from him.

➢ That Lal Chand informed that person (Pinki) that he was not having any money and also told them that steel utensils have been loaded in his vehicle on which accused Pinki told his associates to take away the steel utensils from the vehicle.

➢ That Pinki and his associates took away two bags of steel utensils from the TATA 407 of Lal Chand and ran away towards Machhli Market.

➢ That after 15 minutes of the first incident when Om Prakash came out from his truck, the victim Bijender driver State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 88 of another truck bearing No. RJ­11GA­5839 which was parked behind his truck also came out and told Om Prakash that even he had also been robbed of his belongings and cash to the tune of Rs.47,000/­.

➢ That the driver of another TATA 407 bearing No. RJ­02G 6954 namely Lal Chand told them that the assailants had also taken two bags of utensils from his vehicle on the point of knife.

➢ That thereafter the victim Bijender made a call to the police at 100 number from the mobile phone of another person who was present there.

➢ That the police gypsy came to the spot and the victims informed them about the incident and also informed them that the assailants had gone towards the Machhli market, WPIA.

➢ That in the meanwhile local police had also come when Om Prakash, Bijender and Lal Chand joined the police officers in the search of the accused persons.

➢ That the victims along with the police reached at Machi market WPIA which was adjoining the railway lines where some boys were sitting on the railway lines and the said boys started running on seeing the police.

➢ That after a short chase one boy was apprehended whom State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 89 the victims identified as the boy who had put a knife on their neck.

➢ That on interrogation the said boy disclosed his name as Jitender @ Pinki and one knife was recovered from his possession which the victims identified as the same which was shown to them by Jitender @ Pinki.

➢ That during interrogation the accused Jitender @ Pinki disclosed the names of his other associates as Mohan Paswan, Arun @ Bhoot and Atul Chawal.

➢ That the knife recovered from the possession of the accused Jitender @ Pinki was thereafter seized.

➢ That the accused Jitender @ Pinki disclosed to the police that his associate Mohan Paswan was living in the jhuggi cluster near the Machhli Market after which he led them to the Machhli market Juggies from where the accused Mohan Paswan was apprehended at his instance.

➢ That the accused Mohan Paswan was identified by the victims Om Prakash, Bijender Singh and Lal Chand as one of the person involved in the incident of robbery. ➢ That from the from the pocket of the pant of Mohan Paswan, currency notes to the tune of Rs.10,000/­ were recovered which the accused disclosed to be the part of robbed amount, which currency notes were thereafter State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 90 seized.

➢ That on the basis of the statement of Om Prakash the present FIR was registered in which the accused Jitender @ Pinki and Mohan Paswan have been specifically named. ➢ That both Jitender @ Pinki and Mohan Paswan took the police and the victims to Sant Nagar Burari from where they pointed out towards one boy as Atul @ Chawal as one of their associates who was involved in the crime on which the accused Atul @ Chawal was apprehended.

➢ That the victims also identified the accused Atul @ Chawal as one of the boy who was involved in the incident.

➢ That from the personal search of accused Atul @ Chawal Rs.30,000/­ were recovered, i.e. from one pocket Rs.4,700/­ were recovered and from the other pocket the remaining amount was recovered which the accused disclosed to be the robbed amount on which the said amount was seized. ➢ That on 24.09.2012 the victim Bijender went to the police post Wazirpur Ashok Vihar, Delhi where he along with the police officials, Om Parkash and three accused persons namely Jitender @ Pinki, Mohan Paswan and Atul @ Chawal reached DDA Park, Jailor Wala Bagh, Ashok Vihar, Phase­II, Delhi and at the instance of three arrested accused, accused Arun @ Bhoot was apprehended.

State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 91 ➢ That during interrogation the accused Arun @ Bhoot confessed about his involvement in the present case. ➢ That from the possession of accused Arun @ Bhoot Rs.

2,000/­ were recovered which were seized by the police. ➢ That the victim Om Prakash also identified the accused Arun @ Bhoot in the Police Post Wazirpur Industrial Area. (73) All the victims have identified the accused persons in the Court and have attributed specific roles to them. The victim Om Prakash has identified the accused Jitender @ Pinki as the boy who had put the knife on his neck, the accused Mohan Paswan as the boy who had caught hold of his hands, accused Atul @ Chawal as the boy had caught hold of his legs and the accused Arun @ Bhoot who had caught hold of his hands and legs. The victim Bijender Singh has identified the accused Jitender @ Pinki as the boy who had put the knife on his chest, the accused Mohan Paswan as the boy who had caught hold of his legs, accused Atul @ Chawal as the boy who had removed his money from inside of his pant and the accused Arun @ Bhoot who had caught hold of his legs. The victim Lal Chand also identified the accused Jitender @ Pinki as the boy who had put the knife on his neck and the accused Mohan Paswan, Atul @ Chawal and Arun @ Bhoot as the other assailants.

(74) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 92 investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. The prosecution has proved the identity of the accused Jitender @ Pinki, Mohan Paswan, Atul @ Chawal and Arun @ Bhoot, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution in so far as the accused Jitender @ Pinki, Mohan Paswan, Atul @ Chawal and Arun @ Bhoot are concerned. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link in so far as the accused persons are concerned.

(75) In view of the above, in so far as the charge under Section 395 Indian Penal Code is concerned, all the four accused Jitender @ Pinki, Mohan Paswan, Atul @ Chawal and Arun @ Bhoot are hereby acquitted of the same the prosecution have failed to prove and State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 93 establish the involvement of the 5th boy namely Babloo. However, all the accused namely Jitender @ Pinki, Mohan Paswan, Atul @ Chawal and Arun @ Bhoot are held guilty for the lesser offence under Section 392 Indian Penal Code, for which they are accordingly convicted.

(76) Further, the accused Jitender @ Pinki is the one who had used the knife in committing the robberies and put the victims Om Prakash, Bijender Singh and Lal Chand in fear of instant death and hence he also held guilty for the offence under Section 397 Indian Penal Code read with Section 25/54/59 Arms Act, for which he is accordingly convicted.

(77) In so far as the charge under Section 412 IPC against the accused Arun @ Bhoot, Atul @ Chawal and Mohan Paswan is concerned, since technically the provisions of Section 411 or Section 412 Indian Penal Code are covered within the offence of Robbery as defined under Section 390 Indian Penal Code, the accused Arun @ Bhoot, Atul @ Chawal and Mohan Paswan are acquitted of the charge under Section 412 Indian Penal Code.

(78) Case be listed for arguments on sentence on 2.8.2013.

Announced in the open Court                                                         (Dr. KAMINI LAU)
Dated: 30.7.2013                                                                  ASJ (NW)­II: ROHINI



State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar                                   Page 94
        IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
        JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI

Sessions Case No. 135/2012
Unique Case ID: 02404R0317192012

State                           Vs.        1.         Jitender @ Pinki
                                                      S/o Lt. Moti Ram
                                                      R/o Jhuggi No. N­28/B­507,
                                                      Gali No. 6, CSA Colony WPIA,
                                                      Ashok Vihar, Delhi. 
                                                      (Convicted)

                                           2.         Mohan Paswan
                                                      S/o Lt. Prakash Paswan
                                                      R/o Jhuggi Plot B­46/2, Satsung 
                                                      Colony, WPIA Ashok vihar, Delhi. 
                                                      (Convicted)

                                           3.         Atul @ Chawal
                                                      S/o Ved Prakash
                                                      R/o Vill. Gadha Oriya, PS Ajeetmal
                                                      Distt.: Oriya, U. P.
                                                      (Convicted)

                                           4.         Arun @ Bhoot
                                                      S/o Ashok 
                                                      R/o Jhuggi Opp. Factory C­58,
                                                      Railway Line, CSA Colony, WPIA
                                                      Ashok Vihar, Delhi.
                                                      (Convicted)

FIR No.                                    :          237/2012
Police Station                             :          Ashok Vihar 
Under Section                              :          395/397/412/34 Indian Penal Code
                                                      & Section 25// Arms Act.


State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar                            Page 95
 Date of Conviction:                                   30.07.2013

Arguments heard on:                                   2.8.2013

Date of Sentence:                                     7.8.2013


APPEARANCE:

Present:             Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.

All the four convicts in Judicial Custody with Sh. Rajnish Antil Advocate / Amicus Curiae.

ORDER ON SENTENCE:

As per allegations on 22.9.2012 at 7:00 AM in front of Marry Makers Banquet Hall, Wazirpur Industrial Area the accused Jitender @ Pinki, Mohan Paswan, Atul @ Chawal and Arun @ Bhoot along their associate Babloo (since not arrested) committed dacoity of Rs.47,000/­ from the possession of Bijender in a truck Turbo bearing No. RJ­11­GA­5893; two bags of steel utensils from the possession of Lal Chand in the truck TATA 407 bearing No. RJ­02G­6954 and Rs. 4,700/­ from the possession of Om Prakash in truck bearing No. HR­73­1066. It has been alleged that while committing the aforesaid dacoity, the accused Jitender @ Pinki used a knife which he had showed to the victims Om Prakash, Lal Chand and Bijender Singh, which knife was recovered from his possession. It is further alleged that on 22.9.2012 at Jhuggi Plot No. B­46/2, Satsang Colony, WPIA, Ashok Vihar the accused Arun @ Bhoot dishonestly received / retained the State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 96 stolen amount Rs.2,000/­ belonging to Bijender; the accused Atul @ Chawal dishonestly received or retained the stolen amount Rs.30,000/­ belonging to Om Prakash and the accused Mohan Paswan dishonestly received / retained the stolen amount of Rs.10,000/­ belonging to Bijender.

On the basis of the testimonies of the victims namely Om Prakash, Bijender Singh & Lal Chand and also on the basis of the testimonies of police witnesses, this Court vide a detail judgment dated 30.7.2013 held the accused Jitender @ Pinki, Mohan Paswan, Atul @ Chawal and Arun @ Bhoot guilty for the offence under Section 392 Indian Penal Code; the accused Jitender @ Pinki has also been held guilty for the offence under Section 397 Indian Penal Code read with Section 25/54/59 Arms Act. However, all the accused have been acquitted of the charge under Section 395 IPC and the accused Arun @ Bhoot, Atul @ Chawal and Mohan Paswan have been acquitted of the charge under Section 412 Indian Penal Code.

Vide the above judgment, it has been observed by this Court that it stands established that in the intervening night of 21­22.09.2012 the victim Om Prakash was in his truck make TATA 2518 PC bearing No. HR­73­1066 which was a ten tyre truck and was present in the truck along with Vineet Sharma who is the owner of the company with which the truck was attached with its office at BG­562, Sanjay Gandhi Transport Nagar; that they had parked their truck at Wazirpur at State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 97 JP Dharamkanta, WPIA, near Merry Maker Banquet Hall; that while they were sleeping inside the vehicle, at about 7:00 AM one person entered the vehicle after breaking the side window from the side of conductor and kept a knife on the chest of Om Prakash while he was still sleeping and told him to hand over all his belongings "paisa nikal kya hai tere pas"; that in the meanwhile three more persons entered into the truck and someone held his hand, someone held him by foot and someone removed his belongings including cash to the tune of Rs. 4,700/­ from the pocket of his pant; that while going one of the persons who was having a knife in his hand had threatened Om Prakash not to come out from the vehicle "gari se nikalna nahi, nahi to mar denge".

It has also been established that victim Bijender Singh is into transport business and used to ply his Turbo Truck 3118 bearing no. RJ 11GA 5839; that on 18.90.2012 the driver of Bijender namely Hans Raj loaded the truck at Pitampur, Distt. Indore, MP with Iron Strips and handed over the truck to Bijender Singh on 21.09.2012 at Mathura after which Bijender Singh drove the above said truck to WPIA, Ashok Vihar, Delhi; that on 22.09.2012 at about 4:30 AM, Bijender Singh reached Delhi and parked his truck in front of Merry Maker Banquet Hall, Wazirpur Industrial Area, at a distance of 100 feet from JP Dharam Kanta; that Bijender Singh slept in the truck and his conductor also slept on the backside of the truck over the iron strips; that at about 7:00 AM one person entered the vehicle from the conductor side window and State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 98 kept knife on the chest of Bijender Singh while he was still sleeping; that one more person also entered the truck from conductor side window and two more persons entered the truck from driver side and they all caught hold Bijender Singh by his hands and legs and told him to give him all his belongings by saying"paise nikalo"; that when Bijender Singh protested the person who was holding the knife, threatened to kill him if he raised any alarm or he protested and they took out his Rs.47,000/­ from inside of the pant of Bijender Singh out of which currency notes Rs.43,000/­ were in the denomination of Rs.500/­ and four currency notes of Rs.1,000/­; that after committing robbery of Rs.47,000/­ the assailants went on the back side of the truck and asked Bijender Singh not to raise any alarm and also not to come out of the truck otherwise they would kill him; that thereafter all the assailants went towards one TATA 407 which was parked behind the truck of Bijender Singh and also entered in the said TATA 407 after which they overpowered the truck driver of TATA 407 and robbed two bags of steel utensils and ran away towards the Machchi Market Jhugies Area.

It further stands established that the victim Lal Chand is a driver by profession who used to drive TATA 407 bearing No. RJ02 G 6954 owned by one Subhash; that on 21.09.2012 Lal Chand and Subhash proceeded towards Delhi from Neerana with goods containing steel utensils and on 22.09.2012 they reached at Delhi at early morning time; that at about 5:00 AM they parked their vehicle at Wazirpur State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 99 Industrial Area in front of the Merry Maker Banquet Hall, Ashok Vihar Delhi; that Lal Chand was sleeping in the vehicle at that time when one person whose name he came to know later on was Pinki, came inside of the vehicle and put knife on his neck and his two­three associates were standing outside of his vehicle and Pinki demanded money from him; that Lal Chand informed that person (Pinki) that he was not having any money and also told them that steel utensils have been loaded in his vehicle on which accused Pinki told his associates to take away the steel utensils from the vehicle; that Pinki and his associates took away two bags of steel utensils from the TATA 407 of Lal Chand and ran away towards Machhli Market.

It also stands established that after 15 minutes of the first incident when Om Prakash came out from his truck, the victim Bijender driver of another truck bearing No. RJ­11GA­5839 which was parked behind his truck also came out and told Om Prakash that even he had also been robbed of his belongings and cash to the tune of Rs.47,000/­; that the the driver of another TATA 407 bearing No. RJ­02G 6954 namely Lal Chand told them that the assailants had also taken two bags of utensils from his vehicle on the point of knife; that the victim Bijender made a call to the police at 100 number from the mobile phone of another person who was present there; that the police gypsy came to the spot and the victims informed them about the incident and also informed them that the assailants had gone towards the Machhli market, State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 100 WPIA; that in the meanwhile local police had also come when Om Prakash, Bijender and Lal Chand joined the police officers in the search of the accused persons; that the victims along with the police reached at Machi market WPIA which was adjoining the railway lines where some boys were sitting on the railway lines and the said boys started running on seeing the police; that after a short chase one boy was apprehended whom the victims identified as the boy who had put a knife on their neck; that on interrogation the said boy disclosed his name as Jitender @ Pinki and one knife was recovered from his possession which the victims identified as the same which was shown to them by Jitender @ Pinki; that during interrogation the accused Jitender @ Pinki disclosed the names of his other associates as Mohan Paswan, Arun @ Bhoot and Atul Chawal; that the knife recovered from the possession of the accused Jitender @ Pinki was thereafter seized; that the accused Jitender @ Pinki disclosed to the police that his associate Mohan Paswan was living in the jhuggi cluster near the Machhli Market after which he led them to the Machhli market Juggies from where the accused Mohan Paswan was apprehended at his instance; that the accused Mohan Paswan was identified by the victims Om Prakash, Bijender Singh and Lal Chand as one of the person involved in the incident of robbery; that from the from the pocket of the pant of Mohan Paswan, currency notes to the tune of Rs.10,000/­ were recovered which the accused disclosed to be the part of robbed amount, which currency State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 101 notes were thereafter seized; that on the basis of the statement of Om Prakash the present FIR was registered in which the accused Jitender @ Pinki and Mohan Paswan have been specifically named.

It further stands established that both Jitender @ Pinki and Mohan Paswan took the police and the victims to Sant Nagar Burari from where they pointed out towards one boy as Atul @ Chawal as one of their associates who was involved in the crime on which the accused Atul @ Chawal was apprehended; that the victims also identified the accused Atul @ Chawal as one of the boy who was involved in the incident; that from the personal search of accused Atul @ Chawal Rs. 30,000/­ were recovered, i.e. from one pocket Rs.4,700/­ were recovered and from the other pocket the remaining amount was recovered which the accused disclosed to be the robbed amount on which the said amount was seized; that on 24.09.2012 the victim Bijender went to the police post Wazirpur Ashok Vihar, Delhi where he along with the police officials, Om Parkash and three accused persons namely Jitender @ Pinki, Mohan Paswan and Atul @ Chawal reached DDA Park, Jailor Wala Bagh, Ashok Vihar, Phase­II, Delhi and at the instance of three arrested accused, accused Arun @ Bhoot was apprehended; that during interrogation the accused Arun @ Bhoot confessed about his involvement in the present case; that from the possession of accused Arun @ Bhoot Rs.2,000/­ were recovered which were seized by the police; that the victim Om Prakash also identified the accused Arun @ State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 102 Bhoot in the Police Post Wazirpur Industrial Area.

This Court has also observed that all the victims have identified the accused persons in the Court and have attributed specific roles to them. The victim Om Prakash identified the accused Jitender @ Pinki as the boy who had put the knife on his neck, the accused Mohan Paswan as the boy who had caught hold of his hands, accused Atul @ Chawal as the boy had caught hold of his legs and the accused Arun @ Bhoot who had caught hold of his hands and legs. The victim Bijender Singh identified the accused Jitender @ Pinki as the boy who had put the knife on his chest, the accused Mohan Paswan as the boy who had caught hold of his legs, accused Atul @ Chawal as the boy who had removed his money from inside of his pant and the accused Arun @ Bhoot who had caught hold of his legs. The victim Lal Chand also identified the accused Jitender @ Pinki as the boy who had put the knife on his neck and the accused Mohan Paswan, Atul @ Chawal and Arun @ Bhoot as the other assailants.

This being the background, all the accused Jitender @ Pinki, Mohan Paswan, Atul @ Chawal and Arun @ Bhoot are held guilty for the offence under Section 392 Indian Penal Code (not under Section 395 IPC since the prosecution has failed to prove and establish the involvement of the 5th boy namely Babloo). Further, the accused Jitender @ Pinki is the one who had used the knife in committing the robberies and hence he has been held guilty for the offence under State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 103 Section 397 Indian Penal Code read with Section 25/54/59 Arms Act. In so far as the charge under Section 412 IPC against the accused Arun @ Bhoot, Atul @ Chawal and Mohan Paswan is concerned, since technically the provisions of Section 411 or Section 412 Indian Penal Code are covered within the offence of Robbery as defined under Section 390 Indian Penal Code, the accused Arun @ Bhoot, Atul @ Chawal and Mohan Paswan have been acquitted of the charge under Section 412 Indian Penal Code.

Heard arguments on the point of sentence. The convict Jitender @ Pinki is stated to be a young boy aged about 22 years, having a family comprising of aged widow mother, wife and one son. He is 5th class pass and is a rickshaw puller by profession. The convict Mohan Paswan is stated to be a young boy aged about 24 years, having a family comprising of aged widow mother, one younger brother, one younger sister and wife. He is 8th class pass and was doing the work of polishing of utensils. The convict Atul @ Chawal is stated to be a young boy aged about 22 years, having a family comprising of aged parents, one elder brother, one younger sister, wife and one son aged about 15 days. He is totally illiterate and is a labour by profession. The convict Arun @ Bhoot is stated to be a young boy aged about 22 years, having a family comprising of aged parents, four younger brothers and two younger sisters. He is totally illiterate and is a waiter by profession.

Ld. Counsels appearing on behalf of the convicts have State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 104 argued that all the convicts are young boys and are helping hands of their respective families. It is further submitted that the convict Jitender @ Pinki is the sole bread earner of his family comprising of aged and ailing mother, wife and a small son. It is prayed that a lenient view be taken against the convicts.

On the other hand the Ld. Addl. PP for the State has prayed for a stern view against the convicts keeping in view the allegations involved. He has pointed out that the convict Mohan Paswan is also involved in another case bearing FIR No. 184/2011, under Section 356/379/34 IPC, PS Ashok Vihar and the convict Arun @ Bhoot is involved in case FIR No.302/09, under Section 399/402 IPC, PS Ashok Vihar.

I have considered the rival contentions. and I may observe that in the recent past Delhi has experienced a spurt and rise in the incidents of snatching, robbery, dacoity, murder and other kinds of crime. In the year 2012 alone, a total number of 54,287 cases were registered out of which 608 cases were of robbery; 28 cases were of Dacoity; 14,391 cases were of vehicular theft; 1,440 cases were of snatching and 521 cases were of murder.

The deteriorating law and order problem of the City is a matter of serious concern and immediate steps are required to be taken at all levels for ensuring security and safety of the citizens. Instances of young persons getting involved in criminal activities of robbing State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 105 innocent persons by putting them under threat of death, are also on rise. They unhesitatingly and indiscriminately use dangerous arms on helpless victims who may or not offer any resistance thereby spreading terror in the society and adversely affecting social order and the faith of people in the system. Under these circumstances the courts are required to find answers to the new challenges facing the society and to mould the sentencing system to meet these challenges. The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should be conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of the rime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is desirability to keep the offender out of circulation.

In the present case the convicts Jitender @ Pinki, Mohan Paswan, Atul @ Chawal and Arun @ Bhoot have committed three incidents of armed robbery on helpless truck drivers in a series. First they robbed driver Om Prakash of Rs.4,700/­ while he was sleeping in his truck bearing No. HR­73­1066 under threat of death by putting a knife on his neck; then they all robbed Rs.47,000/­ from the possession of victim Bijender Singh while he was sleeping in his truck Turbo State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 106 bearing No. RJ­11­GA­5893 under threat by use of knife and thereafter they robbed two bags of steel utensils from the truck TATA 407 bearing No. RJ­02G­6954 from the truck of victim Lal Chand which they did by putting him under the dear by showing him a knife. The manner in which the accused committed three incidents of robberies in quick sequence one after the other by putting the helpless drivers in fear of death which they did without any fear of law. Hence, I impose the following sentence upon them separately for each incident.

In so far as the incident of robbery committed by the convicts upon the victim Om Prakash, I hereby award the following sentences to the convicts:

1. The convict Jitender @ Pinki is sentenced to Rigorous Imprisonment for a period of Ten (10) Years and fine to the tune of Rs.5,000/­ for the offence under Section 392 r/w 397 Indian Penal Code r/w Section 25/54/59 of Arms Act. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one month.

2. The convicts Mohan Paswan, Atul @ Chawal and Arun @ Bhoot are sentenced to Rigorous Imprisonment for a period of Five (5) years (each) and fine to the tune of Rs.5,000/­ (each) for the offence State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 107 of Section 392 Indian Penal Code. In default of payment of fine the convicts shall further undergo Simple Imprisonment for a period of One Month (each).

Coming next to the incident of robbery committed upon the victim Bijender Singh, I award the following sentences to the convicts:

1. The convict Jitender @ Pinki is sentenced to Rigorous Imprisonment for a period of Ten (10) Years and fine to the tune of Rs.5,000/­ for the offence under Section 392 r/w 397 Indian Penal Code r/w Section 25/54/59 of Arms Act. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Month.

2. The convicts Mohan Paswan, Atul @ Chawal and Arun @ Bhoot are sentenced to Rigorous Imprisonment for a period of Five (5) Years (each) and fine to the tune of Rs.5,000/­ (each) for the offence of Section 392 Indian Penal Code. In default of payment of fine the convicts shall further undergo Simple Imprisonment for a period of One Month (each).

State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 108 Lastly, coming to the incident of robbery committed upon the victim Lal Chand, I award the following sentences to the convicts:

1. The convict Jitender @ Pinki is sentenced to Rigorous Imprisonment for a period of Ten (10) years and fine to the tune of Rs.5,000/­ for the offence under Section 392 r/w 397 Indian Penal Code r/w Section 25/54/59 of Arms Act. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Month.

2. The convicts Mohan Paswan, Atul @ Chawal and Arun @ Bhoot are sentenced to Rigorous Imprisonment for a period of Five (5) years (each) and fine to the tune of Rs.

5,000/­ (each) for the offence of Section 392 Indian Penal Code. In default of payment of fine the convicts shall further undergo Simple Imprisonment for a period of One Month (each).

Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period undergone by them during the trial as per rules. It is clarified that the sentences in respect of all the three incidents shall run concurrently.

The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar Page 109 they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34­37, Lawyers Chamber Block, High Court of Delhi, New Delhi.

One copy of the judgment and order on sentence be given to the convicts free of costs and one of order on sentence be attached with their jail warrants.

File be consigned to Record Room.

Announced in the open court                                              (Dr. KAMINI LAU)
Dated: 7.8.2013                                                        ASJ­II(NW)/ ROHINI




State Vs. Jitender @ Pinki etc., FIR No. 237/12, PS Ashok Vihar                        Page 110