Delhi District Court
State vs . (1) Balram on 21 November, 2007
IN THE COURT OF SMT. PRATIBHA RANI,
ADDL. SESSIONS JUDGE, TIS HAZARI COURTS,
DELHI
SC No.93/07
State Vs. (1) Balram
S/o Sh. Brij Lal,
R/O Vill. Rivara, PS & PO
Kabrai, Distt. Hamidpur,
UP.
(2) Brij Mohan
S/o Sh. Ram Prashad
R/o Vill. Bicpari,
PS Jagatpur, PO Thularai,
Distt. Rai Bareilli, UP.
(3) Raju S/o Sh. Badri Prasad,
R/o Vill. & PO Mahui,
PS Tindwari, Distt.
Bandra, UP.
(4) Sabhajit
S/o Sh. Badri Prasad,
R/o Vill. & PO Mahui,
PS Tindwari, Distt.
Bandra, UP.
(5) Shiv Prakash
S/o Sh. Ram Raj,
R/o Vill. Nanda Dev, PO
Jaspura, Distt. Bandra, UP.
(6) Naeem S/o Sh. Najeed,
R/o Vill. Goyera, PO
Matond, Distt. Bandra, UP.
(7) Jageshwar @ Raju,
S/o Sh. Maiyadin
R/o Vill & PO Khapriya
Kalan, PS Pellani, Distt.
Bandra, UP.
(8) Brij Bhushan @ Veeru
1
Srivas S/o Sh. Badri Prasad
R/o Vill. Mahui, PS Tindwari,
Distt. Bandra, UP.
FIR No.176/96
Under Sec.395/412/120B IPC
and Sec. 27 Arms Act IPC
PS : Sadar Bazar
Date of Institution : 18.9.96
Arguments heard on : 16.11.07
Order pronounced on : 21.11.07
***
JUDGMENT
Accused Balram, Brij Mohan, Raju, Sabhajit, Shiv Prakash, Naeem, Jageshwar and Brij Bhushan have been sent to face trial for the offences punishable under Section 395/412/120B IPC and under Section 27 Arms Act. As per the case of prosecution on 2.5.2006 Sh. Ashok Mandowara came to PS Sadar Bazar and handed over the written complaint mentioning therein that he was carrying on the business of copper and brass at Sadar Bazar, Basti Harphool Singh, Delhi. On 25.4.1996 he had to go to his native place, village Ganga Pur, Rajasthan and before leaving Delhi he instructed his employee Jeev Raj to collect the money from the shopkeepers of Shahdara for the material sold to them and keep the same with Sh. Pukhraj, his friend because some renovation work was going on in the office of the complainant and it was not safe to keep the money 2 there. After he reached Jaipur, he received the information about telephone call received from Sh. Pukhraj asking him to return to Delhi immediately. He telephoned Sh. Pukhraj from Jaipur Railway Station to inquire about the matter and was informed that the money kept by Sh. Jeev Raj had been looted from his office. He immediately left for Delhi and reached on 26.4.1996 at about 10.00 am and contacted Sh. Pukhraj who briefed him about the factual situation and he became nervous. He requested Mr. Pukhraj to get him returned the money entrusted to him and Sh. Pukhraj assured to prevail upon Sh. Piyush Jain to whom the money was entrusted and Sh. Beeru, the employee. Both Piyush and Beeru were persuaded by him, Sh. Pukhraj and the friends but they did not agree and at his own level when he examined the situation and tried to ascertain the facts, he came to know that there was no dacoity in the office and a story has been concocted to misappropriate his money and till that day they had been making false stories but did not return the money, hence this complaint. On the basis of this complaint FIR No. 176/96 PS Sadar Bazar was registered and when the complainant received the copy of FIR, immediately he found that inadvertently the entrusted amount has been mentioned as Rs.87000/- instead of Rs.8,87,000/- so he immediately corrected the amount and got the necessary correction done vide his 3 another application.
2. The matter was investigate by SI Dhani Ram who inspected the spot, conducted the investigation but nothing happened in the case till 20.6.1996 The accused Beeru was arrested under Section 25 Arms Acts in FIR No.376/96 PS Shalimar Bagh where he made disclosure statement about the conspiracy and dacoity committed at Basti Harphool Singh which fact was informed to PS Sadar Bazar. On 21.6.1996 IO received secret information about two persons who had shared the booty and on the basis of secret information he arrested accused Balram and Brij Mohan from Pitam Pura near Wazir Pur Depot, recorded their disclosure statements and recovered two transistors from their house at KP-14, Pitanm Pura, Delhi but no money was recovered. Subsequently IO SI Dhani Ram obtained the copy of disclosure statement made by accused Beeru in the case under Arms Act of PS Shalimar Bagh and his further disclosure statement was recorded which did not lead to any recovery. On 24.6.1996 on the basis of secret information, IO arrested accused Raju, Shiv Prakash, Naeem and Sabhajit from ISBT while they were alighting from a bus coming from Banda, UP and Piyush Jain was accompanying the police team at that time. Disclosure statement of these four persons were also recorded. On 24.6.1996 Rs.10,000/- were recovered from KP- 4 14, Pitam Pura at the instance of accused Raju, Rs.16,500/- were recovered at the instance of Naeem from one jhuggi and on 26.6.1996 Rs.4,000/- were recovered from KP-14 Pitam Pura, Delhi on the disclosure of accused Balram. Rs.1000/- were shown to have been recovered at the instance of accused Jageshwar on 27.6.1996 and on 11.7.1996 another disclosure statement of accused Beeru was recorded and recovery of another Rs.1000/- was made from KP-14 Pitam Pura at his instance. On the basis of investigation, it was considered to be a case of dacoity hence Section 395/120B IPC were added. Section 27 Arms Act was also added as katta was used at the time of dacoity and Section 412 IPC was added for receiving the property stolen in the commission of dacoity.
3. After compliance of provisions of Sec. 207 CrPC, the case was committed to the Court of Sessions.
4. After hearing on the point of charge, all the accused were charged on 12.10.1999 for the offence punishable under Sec.120B/395 IPC to which they pleaded not guilty and claimed trial. Accused Balram, Brij Mohan, Raju, Sabhajit, Shiv Prakash, Naeem, Jageshwar, Brij Bhushan were also separately charged for the offence punishable under Section 412 IPC to which they pleaded not guilty.
4. Prosecution has examined 12 witnesses in support of 5 its case. All the accused persons were also examined under Sec. 313 CrPC to enable them to explain about the evidence appearing against them. They have stated that they are innocent and they have not committed any offence. Accused Sabajit has also stated in his statement under Sec. 313 CrPC that on the day of alleged offence, he was posted on election duty at Village Mataun, Distt. Banda, U.P. in his capacity as Daftri, being an employee of Govt. Inter College, Mataun, Distt. Banda, UP and he could not have left that place due to his engagement in the election duty. Accused Sabhajit has examined Sh. Bhawani Deen Kuthar Shekhar as DW-1 to prove that on the day of alleged offence, accused Sabhajit was on election duty at Village Mataun, Distt. Banda, UP.
5. I have heard Addl. PP for the State and Sh. Mukul Sharma, ld. counsel for the accused persons. I have also carefully gone through the record.
6. After trial, all the accused persons are acquitted of the charge due to following reasons :-
In the instant case, Sh. Ashok Mandowara, the complainant had immediately returned to Delhi and visited the place where the dacoity was allegedly committed and was satisfied that it was a case of misappropriation and not dacoity as claimed by Sh. Piyush Jain and others. After considering the 6 statement of complainant Sh. Ashok Mandowara, Sh. Pukhraj, Sh. Piyush Jain and IO SI Dhani Ram, the only conclusion that can be drawn is that it is a case where the real culprits have been protected by the Investigating Officer/SHO, PS Sadar Bazar by making the real culprits as prosecution witnesses and accused persons have been made scapegoat by chargesheeting them as dacoits or receiver of money looted in dacoity. Piyush Jain and Pukhraj who were suspects from the very beginning have been cited as a witness to prove the guilt of accused persons but the record is ample clear that out of the misappropriated money by these two witnesses i.e. PW-2 Sh. Pukhraj and PW-4 Sh. Piyush Jain, some money had been given to the police and planted on the accused persons to solve the case and show the recovery of the part money from them. The evidence on record conclusively prove these facts pointing the needle towards Pukhraj and Piyush Jain to be the persons who in collusion with the police had successfully not only evaded their arrest and prosecution in this case but also successfully manged to prosecute eight innocent persons and stand against them as witnesses, though they were the persons who misappropriated the amount belonging to Sh. Ashok Mandowara. In this regard, it is relevant to mention the statement of PW-4 Sh. Piyush Jain to whom the money was handed over by Sh. Vikram and Sh. Jeevraj i.e. PW-5 and PW-7 7 respectively. Statement of PW-5 and PW-7 is to the effect that after collecting the money from different shopkeepers which was Rs.8,87,000/-, it was handed over to Sh. Piyush Jain who was present in his office and thereafter they left that place. It is also relevant to mention here that Sh. Piyush Jain admitted that PW-7 Sh. Jeevraj after confirming from him telephonically that he was present in his office, he alongwith PW-5 Sh. Vikram came to his office at 9.45 pm. Sh. Piyush Jain has stated that Sh. Jeevray handed over Rs.8,87,000/- to him telling that his Master Sh. Ashok Mandowara had asked him to keep the money in his (PW- 4 Piyush Jain) office and the money was containing in two bags i.e. one is plastic kata and one is cloth bag. He took the money and kept the same in a cupboard covered in a wooden almirah.
After keeping the money, he went down alongwith Jeevraj and Jeevraj left in his car. After sometime when he alongwith Beeru was about to start the dinner, in the meanwhile five persons entered his office and started beating both of them and asked for the money. They were having knives and desi kattas. When he refused to divulge the information about money, two out of those five persons started searching money. The almirah in which he had kept the money was the only almirah which was locked and those persons broke open the lock of that almirah, took out the money and the remaining associates gagged them, tied their 8 hands and legs and locked them in the toilet. He was put inside the toilet while Beeru was near the door of the toilet. Their hands and legs were tied with the telephone wire and on his asking Beeru untied the legs of Piyush Jain with his mouth. Piyush Jain called out Pandit Ji, the watchman who came and untied his hands. He told the watchman everything and thereafter telephoned Sh. Pukhraj who reached there. He also narrated the incident to him and thereafter he went to the Police Station and lodged the FIR. He has further stated that on 20/21.6.96 accused Beeru was apprehended in some other case by the Police of PS Shalimar Bagh wherein he made disclosure statement about this occurrence also. He was called to PS Sadar Bazar and taken to ISBT by the police officials from where four accused persons namely Raju, Sabhajit, Shiv Parkash and Balram were apprehended while they were getting down from the UP Roadways bus. They were arrested and their personal search was conducted vide memos Ex.PW4/A to C and Mark-A and these accused persons also made their disclosure statements Ex.PW4/D to F and on the basis of these disclosure statements, house searches of all these accused persons were conducted and from the house of Raju Rs.10,000/- were recovered and seized vide memo Ex.PW4/G, from the house of accused Sabhajit, Rs.30,000/- were recovered and seized vide memo Ex.PW4/H 9 and from the house of accused Shiv Prakash Rs.4,000/- were recovered and seized vide memo Ex.PW4/J. On 21.6.96 house of accused Naeem was also searched and Rs.16,000/- were recovered and seized vide memo Ex.PW4/K. He has further stated that he had seen servant Beeru talking to accused Sabhajit twice before the incident. He has stated that Rs.60,000/- were recovered but he could not say which currency notes were recovered from which accused.
PW-2 Sh. Pukhraj has stated that he was carrying on business in partnership with Piyush Jain (PW-4) at H.No. 5625/26, Basti Harphool Singh, Sadar Bazar under the name of Avis Overseas. On 25.4.96 in the night PW-4 Piyush infomed him on telephone that Rs.8,87,000/- sent by Ashok Madowara had been looted by some dacoits. On this, he immediately sent the message to Ashok Mandowara regarding the incident and he himself went to Basti Harphool Singh to know about the circumstances and Piyush and Beeru told about the incident to him. On 21.6.96 he came to know that Beeru had been arrested in Shalimar Bagh and later on he came to know that his servant Beeru was involved in this incident.
This witness was cross examined at length by ld. Defence counsel Sh. Mukul Sharma wherein he has admitted that Piyush used to live at the same place and Beeru used to cook 10 food and do other works meaning thereby that accused Beeru was a servant in that shop for cooking food and doing other works for Piyush Jain, the partner of PW-2 Sh. Pukhraj. The cross examination of Sh. Pukhraj reveals that there was s concealed 'safe' in that shop. There were two-three telephone connections in that office lying on the table of Piyush (PW-4) and other staff with parallel lines. Further that whatever cash used to be collected, it was kept in the safe and the most important fact revealed by this witness is that on the day of incident, there was an amount of Rs.10 Lacs to Rs.15 lacs lying in iron 'safe' belonging to Pukhraj and key of that iron 'safe' used to remain with Piyush Jain, the other partner. He has also revealed that he reached the office within 45 minutes or one hour of receiving information from PW-4 Piyush alongwith police and at that time accused Beeru and PW- Piyush met them in the office. He could not recollect whether he had taken the cash lying in the iron 'safe' immediately after the incident but admitted as correct that whatever amount was lying in the iron 'safe' was not touched by the looters. He volunteered that the looters had taken the money which was lying in the office and stated that the amount of Rs.8,87,000/- of Ashok Mandowara was kept in the wooden almirah.
Now the statement of IO SI Dhani Ram (PW-12) is to 11 be considered. As per him, he has visited the place of occurrence for the first time on 2.5.96 when the complaint was lodged by Sh. Ashok Mandowara (PW-1). At the spot, he met Pukhraj, the owner alongiwth his partner Piyush and two-three other persons. He has further stated that he inspected the room and found the 'Tijori' (safe) locked. He got the 'Tijori' opened by Pukhraj and the same was empty. He prepared the site plan of said room, made inquiries from Piyush and Pukhraj and recorded the statement of Pukhraj and complainant at the same time outside the office. Thereafter he returned to the police station. Complainant followed him shortly and at the police station he gave the copy of the FIR to the complainant. After that complainant told him that he has wrongly mentioned the amount in nervous condition as Rs.87,000/- instead of Rs.8,87,000/- and gave another application Ex.PW1/B making the correct figure. He also expressed suspicion on the employees of the firm and on 21.6.96 at about 8.00 pm on the basis of secret information, he apprehended Balram, Brij Mohan from Pitam Pura in the presence of complainant and his friend Satish Maheshwari who made disclosure statement about this occurrence. They were arrested in this case but nothing was found during their personal search. However at their pointing out, from KP-14, Pitam Pura, two transistors were recovered which they had purchased out of 12 their share in the dacoity and seized vide memo Ex.PW1/E and F. He has further stated that on 21.6.96 itself, he received the information vide DD No.26-B from PS Shalimar Bagh about the arrest of accused Brij Bhushan @ Beeru under Arms Act where he made disclosure statement of this case also. Thereafter PW-12 deposed about the arrest of remaining accused persons and recovery of currency notes at their instance. He has also stated about the arrest of four accused persons namely Raju Naeem, Shiv Parkash and Sabhajit from ISBT in presence of Piyush which was obviously for the reason to avoid the TIP of those arrested persons. The material on record clearly suggest that these four accused persons who were allegedly shown apprehended while they were alighting from UP Roadways Bus in presence of PW-4 Piyush who was specially joined to arrest these persons was to only help the real suspect i.e. Piyush Jain. Since beginning the complainant suspected Piyush Jain to be the person who had misappropriated the amount kept in that shop. The arrest of four accused persons from ISBT is doubtful as the persons coming by a UP Roadways bus would have atleast their travelling tickets and luggage. Their personal search memos reveal recovery of Rs.35/- from accused Naeem, of Rs.30/- from accused Shiv Parkash, of Rs.40/- from accused Raju and nothing was recovered from accused Sabhajit. The amount shown to 13 have been recovered from these accused persons would not have been sufficient even for their return journey what to talk of their expenses for boarding and lodging in the Capital. It is also relevant to mention that Ct. Kishan Singh has deposed that they were carrying luggage however, he could not tell what happened to that luggage. Witness Piyush and IO SI Dhani Ram also could not explain whereabouts of their luggage.
The date of occurrence is 25.4.96 night time and SI Dhani Ram admits that he was on duty at the Police Station on 25/26.4.96 but he had shown ignorance if Piyush Jain had come to the police station before the complainant Ashok Mandowara came to the police station or his statement was recorded by some other police officer. Had there been any dacoity the entire staff of Sadar Bazar would have come into motion immediately. He has stated that one or two other persons including Pukhraj accompanied Ashok Mandowara to the police station and that when he asked the complainant about the delay in lodging the complaint, he revealed that he was out of station till that time and when he questioned the complainant as to where he was till that day, he replied that he was in his house in Delhi itself. He has stated that he alongwith Ashok Mandowara proceeded to the spot immediately after the investigation was marked to him. The spot was located at the first floor of building No.5625-26, Basti 14 Harphool Singh. He prepared the site plan Ex.PW12/A but no photograph was taken. There was only one 'safe' of metal which was used for custody of money in the entire office and Piyush Jain had told him during the investigation that he had kept the money in that 'safe' shown at point-AX. He has also stated that the door of the 'safe' was intact and the lock was not broken. At that time there was no cash in the 'safe'. It was opened by some employee for his inspection but he did not seize the keys of the 'safe' and when he questioned Piyush Jain about the other persons present on that day, he named Beeru only and none else. He has admitted that Piyush Jain had told him that only the cash personally belonging to Ashok Mandowara had been looted but did not tell him that besides the personal cash of Ashok Mandowara, there was an amount of Rs.15/20 lacs lying the same 'safe' on that day. He has also stated that PW-4 Piyush Jain had informed him that his own cash i.e. Rs.70,000/- had been given by him to the accused persons. He has admitted that he recorded the statement of Piyush Jain on 22.6.96 only which is Ex.PW12/DA. He has also denied that PW-2 Piyush Jain informed him that his own cash to the tune of Rs.15 to Rs.20 lacs was lying in the same 'safe' but not taken by the dacoits. He has also stated that 2-3 telephones were lying in the office but none of the instrument or wiring was found damaged nor any wiring 15 with which Piyush Jain and Beeru were tied, were produced or the clothes which was stuffed in their mouth was produced before him. IO SI Dhani Ram has further stated that he had asked Piyush Jain as to why he did not call the police immediately after the incident to which he replied that he had informed the owner and that was that and when he asked Pukhraj as to after how much time of being informed by Piyush Jain, he reached the spot, Pukhraj replied that he had called up the owner (Ashok Mandowara) and he decided to come only after the owner (Ashok Mandowara) arrived and that Piyush had not offered any explanation for all these delays in reaching the police station. PW-12 SI Dhani Ram has also admitted that he had interrogated accused Beeru but did not record his statement. He had interrogated 5-6 other employees but no statement was record and that Beeru had been arrested by him on 6.7.96 after obtaining permission of his arrest. As he was already arrested in a case of PS Shalimar Bagh. He has also admitted it to be correct that during interrogation of accused Beeru by him, he had not been able to extract any valuable information from him till he was arrested in another case of PS Shalimar Bagh and made disclosure there. He has also admitted that Piyush Jain had not given any description of the offenders and that no independent person was associated during the recovery of the currency notes 16 in this case. He has admitted that he had taken the search of KP- 14 Pitampura on 21.6.96 and no cash was recovered on that date but only transistors were recovered and cash had been recovered on 26.6.96 and thereafter on 11.7.96 at the pointing out of accused Beeru.
After considering the testimony of all the material witnesses especially PW-2 Sh. Pukhraj, PW-4 Sh. Piyush Jain and PW-12 SI Dhani Ram, the IO of the case, it is established on record that a sum of Rs.8,87,000/- was handed over by Sh. Vikram (PW-5) and Sh. Jeevraj (PW-7) to Sh. Piyush Jain, partner of Sh. Pukhraj on the night of 25.4.96 which fact has been admitted by Piyush Jain to whom the money belonging to Sh. Ashok Mandowara, the complainant was handed over by PW-5 and PW-7 and now the question arises where that money has gone and how it has happened that dacoity was committed in the premises but not even an abrasion appeared on the body of Piyush Jain, amount of Rs.15 to Rs.20 lacs lying in the safe belonging to Pukhraj and Piyush Jain remained untouched though its keys were with Piyush Jain and there was only one safe in which the amount of Pukhraj was kept, there was no wooden almirah or safe or any other place found by the IO in that premises where a sum of Rs.8,87,000/- belonging to the complainant could be kept by Piyush Jain. The status of accused 17 Beeru in that establishment was that of a servant only and neither the amount has been handed over to him nor recovered from him. Admittedly the police station Sadar Bazar is at a distance of less than half a kilometer from the place of occurrence, still no complaint was lodged with the police till 2.5.96. So far as the complainant is concerned, he has given a valid explanation that Pukhraj assured to persuade his man Piyush Jain to return the amount and Piyush Jain and Beeru were persuaded a lot to return the amount but they did not agree and at his own level he inquired and was satisfied that there was no dacoity committed in that office and a story has been concocted to grab his money. The circumstances explained in the complaint Ex.PW1/A and B clearly established that the complainant wanted his money back and continued making efforts through common friends to persuade Pukhraj and Piyush Jain to return his money and name of Beeru appears to have been mentioned just to put him under pressure to disclose the facts which might be in his knowledge as a servant and being present at the scene of occurrence. Again a clever game plan was thought and accused Beeru was shown arrested from Shalimar Bagh on 21.6.96 in case FIR No.376/96 under Sec. 25/54/59 Arms Act for recovery of a knife and under well thought plan his disclosure statement was recorded at PS Shalimar Bagh regarding this occurrence though PS Shalimar 18 Bagh had hardly any occasion to interrogate this accused in a case of recovery of knife. It appears that accused Beeru was made accused in a case under Arms Act so that one material witness who could dare disclose the true facts about the concocted story of dacoity and remain behind the bars not only in a case under Arms Act but also with allegation of dacoity and his statement could never be recorded against Pukhraj and Piyush Jain as witnesses. Had it not been so, when accused Brij Bhushan @ Beeru was interrogated at PS Sadar Bazar by SI Dhani Ram for number of days as claimed by him then that was the time when disclosure statement of Beeru could be recorded. It is also strange that SI Dhani Ram, the IO claims interrogation of Beeru at PS Sadar Bazar after lodging of the complaint Ex.PW1/A and B on 2.5.96 but till 21.6.96 though this accused was very much available for interrogation but for SI Dhani Ram he was a hard nut to crack and he could not extract any information from him in a heinous crime like dacoity. However, the accused Beeru was soft enough to make disclosure statement of his own about this occurrence in an unrelated case of recovery of knife by another police station. Here it is also relevant to mention that all the circumstances brought on record clearly point out that the entire amount money has been misappropriated by PW-4 Piyush Jain under the protection of PW-2 Pukhraj and 19 out of that amount only, some amount was given to the police to show the recovery from these accused persons. Had it not been so, how is that that during first search at KP-14, Pitampura only two transistors were recovered and then on every arrest, money is shown to have been recovered from KP-14, Pitampura at the instance of different accused persons but when produced in the court it is shown in bulk and not as separate recovery. It is also strange that PW-4 Piyush Jain has identified that money though he had no occasion to see it for the reason that the money was kept in two bags when handed over to him by PW-7 Sh. Jeevraj and as per Piyush Jain, after Jeevraj and Vikram left and he was about to start the dinner when the dacoity was committed. It is also relevant to mention here that the police officials of PS Sadar Bazar in collusion with Pukhraj and Piyush Jain preferred to help them in such manner that no occasion for TIP could ever arise, otherwise where was the need to take Piyush Jain while so called arrest of four accused persons on 24.6.96 from ISBT. Another point to be considered is that despite being three telephones available in the office, after arrival of Pukhraj within one hour of the alleged occurrence of dacoity, the police was not informed by them and if informed as claimed by PW-2 Pukhraj, there is not even a DD entry at PS Sadar Bazar or at Police Control Room about the information of dacoity given by Piyush Jain or 20 Pukhraj. Another point to be considered is that the safe was not found broken and telephone wires were not found snapped though Piyush Jain claimed that he called Pukhraj from outside since the wires of all the three telephones were snatched from the connecting point by the dacoits and this fact has not been corroborated by PW-2 Pukhraj. No cloth or the telephone wire with which Piyush Jain was allegedly tied was ever produced by Piyush Jain to the police. There is not even a whisper that even an alarm was raised by Piyush Jain after the dacoits left. What happened after the dacoits left, has been mentioned by Piyush Jain in the following manner :-
"When they demanded money from me, I refused to divulge the information about money. Two out of those 5 persons started searching money. Almirah in which I kept the money, was the only almirah which was locked and those persons broke-open the lock of that almirah. They took out the money and the remaining accomplishes including Naeem and Brij Mohan gagged us and tied out hands and legs and locked us in the toilet. While I was put inside the toilet, Beeru was left near the door of the toilet. Our hands and legs were tied with telephone wires and on my asking Veeru untied my legs with his mouth. Thereafter I stoop up and came out and called Pandit Ji, who was our watchman. He came and untied my hand. I told him everything. I thereafter telephoned Pukhraj. He reached there and I narrated the incident to him. Thereafter I went to PS and lodged the FIR."
A bare reading of the above statement brings out the contradiction in the prosecution theory. First of all when Piyush 21 Jain and Beeru were locked in the bathroom with both their hands and legs tied and mouth gagged, Beeru could not have come closer to Piyush Jain to open his hands with his mouth as he could not have opened his own mouth when his own hands were tied. Now assuming for the sake of arguments that Beeru was left at the door of the bathroom and Piyush Jain inside and Piyush Jain called Beeru who, assuming for the sake of arguments, had free mouth to open the legs of Piyush Jain, then with gagged mouth Piyush Jain could not have called Pandit Ji, the watchman to call him to open his hands and tell him about the occurrence. Strangely the Pandit Ji Sh. Basukhi Nath Dubey has not been examined by the prosecution, has been given up by Ld. Addl. PP as unnecessary by the prosecution vide statement dated 11.8.2005. If Piyush Jain is believed in this regard then Sh. Basukhi Nath Dubey, who was also the watchman, was the first person to reach the scene of crime. Even the watchman had to perform his utmost duty to raise alarm, collect the neighbouring persons and inform the police but nothing such has come on record. Even it has not come on record as to who opened the legs and hands of accused Beeru whethere it was Piyush Jain or the watchman Sh. Basukhi Nath Dubey who untied him. It is also relevant to mention that though Piyush Jain claims that after Pukhraj reached the spot and he narrated the 22 incident to him, he also went to Police Station and lodged the FIR as already mentioned. No such report was ever made either in the form of FIR or in the form of DD entry or even the police control room was not informed. Though Piyush Jain claims that he telephoned from outside meaning thereby that some other shop or office was open at that time from where the telephone call was made, even that place or person had not been named. There is nothing in the statement of Pukhraj and Piyush Jain to even suggest that any complaint was ever made to MTNL to repair the snatched telephone wires. Even when the IO visited the spot, neither the handle or the safe was found broken nor there was any other visible sign to even suggest that dacoity was committed ther at any point of time. The dacoits could not have distinguished between the money belonging to Ashok Mandowara and Pukhraj as for them to have maximum amount in loot could be in mind but strangely only the amount belonging to the complainant was claimed to have been looted which again indicate that it was a game plan of Piyush Jain and Pukhraj to grab the money of Ashok Mandowara may be under the impression that this amount must be unaccounted and complainant may not dare report the police about this matter and that also appears to be the reason that in the first complaint Ex.PW1/A, the complainant mentioned the amount kept with 23 Piyush Jain as Rs.87,000/- but later on mentioned the correct amount as Rs.8,87,000/-. It is a case where Piyush Jain and Pukhraj could manage to misappropriate that amount under the nose and protection of police officials of PS Sadar Bazar parting with a petty amount to plant on the accused persons to falsely implicate them in this case and stand as a witness in this case against these innocent persons. PW-4 Piyush Jain has also been confronted with his statement recorded under Sec. 161 CrPC Ex.PW12/DA wherein he has stated that when he was sitting for taking dinner, about five strangers entered, threatened and started beating him inquiring about the keys. They all were armed. They forcibly took out the key from the drawer but forcibly opened the locker by giving a jerk and took out the money. First of all, if the dacoits had access to the keys, they had no occasion to break the locker by force and if locker was broken, then how when it was examined by the police, there was no sign of breaking and how that Pukhraj could not recollect the fact as to how and when he had removed Rs.15 to Rs.20 lacs belonging to him from that locker after this occurrence and how is that that after such a big dacoity in a congested area like Basti Harphool Singh, dacoits could manage to loot without the facts being noticed by even the close neighbourers and the matter remained un-reported for such a long time despite the fact that police 24 station was at a short distance and even SI Dhani Ram could not come to know about this dacoity till investigation was assigned to him.
Here it will not be out of place to mention that one of the accused Sabhajit has summoned Sh. Bhawani Deen Kuthar, Teacher at Government Inter College, Matuandh, District Banda, UP alongwith the original record showing that this accused was working as Peon in Government Inter College, Matuandh, District Banda, UP wherein accused has been marked present on 25.4.96, 26.4.96 and 27.4.96 and further that on 26.4.96 Sabhajit was attending the rehearsal for the election duty in relation to then notified Lok Sabha Elections. He has also stated that the attendance register is kept in the office of Principal and the employees sign the same in the presence of the Principal. He has also stated that the distance of Delhi from Banda, UP is 596 Km.
After carefully considering the testimony of the prosecution witnesses, I am of the considered view that accused persons have been falsely implicated in this case at the instance of Piyush Jain and Pukhraj who had an evil eye on the amount of Rs.8,87,000/- being kept in their office by the employees of the complainant Ashok Mandowara but when the complainant insisted for return of his money, under a well thought plan, innocent persons were falsely implicated in this case and the real 25 offenders i.e. Piyush Jain and Pukhraj were made witnesses to prove the guilt of the accused persons who had nothing to do with the money of Ashok Mandowara kept with Pukhraj. The conduct of the IO SI Dhani Ram and the then SHO PS Sadar Bazar in sheltering the real offenders and prosecuting the innocent persons needs to be probed into. Hence, a copy of this order be sent to DCP (North) for necessary action.
In the circumstances, all the accused persons are acquitted of the charge. Case property be returned to the rightful owner, after the expiry of period of appeal. File be consigned to Record Room.
Announced in the open Court ( PRATIBHA RANI ) 21.11.2007 Addl. Sessions Judge/Delhi 26