Delhi District Court
State vs . Rajeev @ Rajesh And Others on 24 August, 2011
State Vs. Rajeev @ Rajesh and Others
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 40/2011
State Vs. : 1. Rajeev @ Rajesh @ Raj
Kumar
S/o Sh. Rajbir @ Hayat
R/o H15, Sec5, Noida, U.P.
2. P. Basanthan
S/o Ramdass
R/o H. No. 225, Andal Nagar,
Street No. VIII, Ala Bakum,
Dist. Poru, Chennai116.
3. Manoj Dhondial
S/o Sh. Lakhpati Prasad
Dhondial
R/o 290B, Shakti KhanIst,
Indirapuram, Ghaziabad, U.P.
FIR No. 560/2005
P.S. Kotla Mubarak Pur
U/s 397/392/34 IPC
Date of Institution : 17/12/2005
SC No. 40/2011 1/30
State Vs. Rajeev @ Rajesh and Others
Date when arguments
were heard : 09/08/2011
Date of Judgment : 24/08/2011
JUDGMENT
BRIEF FACTS:
The factual matrix of the prosecution case is as follows: On 13.10.05, Nazmuddin (herein after called complainant/victim) was driving his TSR on rent in the night at 12.30am, dropped the passenger at Sec2, R.K. Puram, thereafter getting CNG filled at CNG Pump Ring Road, Sarojini Nagar side, moved out just ahead from the pump where three boys were standing.
Those boys stopped the complainant, asked him to leave them at INA Market. The three boys then sat in the TSR. The complainant drove the TSR from Aurobindo Marg, thereafter under the flyover towards INA Market. Before INA Market, where the road moved towards inside from the left side, there those boys asked the complainant to stop the TSR. The complainant stopped the TSR. Amongst the three SC No. 40/2011 2/30 State Vs. Rajeev @ Rajesh and Others boys, one fat boy, blackish complexion; second slim boy of wheatish complexion and third slim boy of fair complexion who were of heights around 5 feet 8 inches and 5 feet 9 inches. The boy having blackish complexion held the complainant from back, made him alight from TSR. The slim boy of wheatish complexion took out a knife. The slim boy of fair complexion pushed the complainant in the TSR, said "
agar halla machaega to tera pait phaad denge". Those three boys snatched the purse of complainant, made him sit in the TSR under fear. The fat boy started driving TSR, took it on the wrong side, brought it back to the other side of flyover towards DDA, Vikas Sadan. At a lonely place, the complainant was pushed outside from the TSR and his TSR number DL1RH2362 was snatched away by those three boys. After taking lift, the complainant reached Aurobindo crossing PCR base. On receiving copy of DD no. 55B, SI Rajnish Kumar with Ct. Naveen reached there. SI Rajnish recorded statement Ex. PW1/A of PW1, complainant scribed tehrir Ex. PW11/A, got case FIR no. 560/05 U/s 392/34 of IPC registered at PS Kotla Mubarak Pur. Officials of PS Kotla Mubarak Pur received information of apprehension and arrest of accused Manoj; Rajiv and P. Basanthan in SC No. 40/2011 3/30 State Vs. Rajeev @ Rajesh and Others case FIR no. 606/05; FIR No. 605/05 and FIR no. 604/05, PS Connaught Place. The robbed TSR was recovered from the accused persons which had been then allegedly driven by accused Rajiv; from the possession of Manoj and P. Basanthan one button actuated knife each were recovered for which separate proceedings were conducted against them. The grey colour purse of complainant was also recovered from accused Rajiv @ Rajesh. In the course of investigation, Test Identification Parade of accused Manoj was organized and he was identified in the course of proceedings by the complainant while other two accused Rajiv @ Rajesh and P. Basanthan refused to join Test Identification Parade.
2. After completion of the investigation, charge was filed against the accused persons for offences under Section 392/397/411/34 IPC. On completion of requirements under Section 207 IPC, the case was committed to the Court of Sessions.
3. Vide orders dated 21.03.06 charges for offence 397 IPC against accused Manoj; under Section 392/34 IPC against accused SC No. 40/2011 4/30 State Vs. Rajeev @ Rajesh and Others Rajiv @ Rajesh and P. Basanthan were framed by my Ld. Predecessor to which the accused persons pleaded not guilty and claimed trial. WITNESSES:
4. In order to connect the accused with the offences charged, the prosecution has examined in all 19 witnesses namely PW1, complainant/victim Nazmuddin; PW2 HC Shamsher Singh; PW3 Ct. Upender Kumar; PW4 Ct. Pawan Kumar; PW5 Mohd. Hafiz; PW6 HC Babu Lal; PW7 SI Naresh Malik; PW8 Ct. Rajender Singh; PW9 Sh. Vinod Kumar; PW10 Ct. Shambhu Tiwari; PW11 SI Rajnish; PW12 Ct. Mahesh Chand; PW13 HC Rambir Singh; PW14 Ct. Mohan Singh; PW15 Ct. Satender Kumar; PW16 Ct. Brijender; PW17 SI Fateh Singh; PW18 Ms. Barkha Gupta, the then Ld. M.M. and PW19 HC Satpal.
STATEMENT OF ACCUSED:
5. Thereafter the accused persons were examined under Section 313 Cr.P.C wherein they pleaded innocence and false implication.
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State Vs. Rajeev @ Rajesh and Others
6. Accused Rajiv stated that on 11.10.05, he was lifted from his house from Noida, U.P. and falsely implicated in this case.
7. Accused P. Basanthan stated that he was in private employment with parking contractor Anna at Yashwant Place in Chanakya Puri from where he was lifted and falsely implicated in this case though he had not committed any offence as alleged.
8. All the accused person denied to enter upon their defence and/or to lead any defence evidence.
ARGUMENTS:
9. I have heard the arguments of Ld. Addl. PP for the State, Ld. Defence counsel and have perused the material on record and given my thoughtful consideration.
10. Ld. Addl. PP argued that the robbed articles were recovered on the day of occurrence from the accused persons; the SC No. 40/2011 6/30 State Vs. Rajeev @ Rajesh and Others recovery witnesses were consistent with regard to the manner of recovery, time of recovery and had identified the case property, the robbed property as well as the accused persons; since the recovery was soon after the occurrence, the presumption envisaged under Section 114 (a) of Evidence act is to be invoked. Ld. Addl. PP argued that the victim, illiterate TSR driver, who as per evidence, appeared a little bit confused with regard to the roles of accused and though his testimony embodies some contradictions and omissions but the same did not go to the root of the matter and considering educational background and occupation, in the backdrop of the identification of the case property and the accused, these can not be attached with undue importance nor in themselves would be sufficient for accused to seek acquittal. Ld. Addl. PP submitted that prosecution has been able to prove its case against the accused persons beyond reasonable doubt.
11. Ld. Defence counsel argued that the complainant/victim did not identify accused P. Basanthan as the offender of robbery; having studied in Madrasa, complainant was not aware of the contents of his complaint Ex. PW1/A, PW1 had testified that he remained in SC No. 40/2011 7/30 State Vs. Rajeev @ Rajesh and Others police station till 5.00am, which would be the fact which would entirely demolish the put forth prosecution version; the version of the prosecution witnesses is not only embedded with material contradictions and severe infirmities going to the root of the matter but they also check the basic version and core of the prosecution case. Also it was argued by Ld. Defence counsel that the complainant admitted of having seen the accused in police station before the Test Identification Parade, meaning thereby that the organization of the Test Identification Parade was a farce when the accused were shown to the witnesses at police station before the organization of Test Identification Parade; no independent witness had been joined at any stage of investigation to lend credence to the version of the alleged apprehending police witnesses of alleged recovery of robbed articles allegedly from the accused. Ld. Defence counsel prayed for the acquittal of the accused since, the star witness, PW1 Complainant and the investigating officer gave contradictory version and it was a case of planting of case property as well as knife upon the accused persons and falsely implicating them.
SC No. 40/2011 8/30
State Vs. Rajeev @ Rajesh and Others APPRECIATION OF EVIDENCE
12. The prosecution case primarily hinges on the ocular version of complainant/victim PW1 Nazmuddin. Plurality of the evidence is not the necessity of law. It is the quality not quantity of evidence which matters.
13. In Vadivelu Thevar v. The State of Madras AIR 1957 SC 614 oral testimonies have been classified into three categories, namely :
(1)Wholly reliable.
(2)Wholly unreliable.
(3)Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for SC No. 40/2011 9/30 State Vs. Rajeev @ Rajesh and Others corroboration in material particulars by reliable testimony, direct or circumstantial.
14. In Ex. PW1/A, the complainant/victim, PW1 made it vivid and clear that the alleged offenders were not previously known to him while he has given the description of their physical appearance and ascribed the role of them in accordance thereof.
15. On record is DD No. 55B, copy Ex. PW3/A finding mention the date 12.10.05, time as 1.25am and the matter that the complainant/victim, PW1 having informed HC Bal Krishan, Incharge of PCR vehicle V97 based at Aurobindo Marg that after getting CNG filled in TSR no. DL1RN2362, three boys boarded in his TSR and at Safdarjung fly over snatched the TSR showing knife, ran towards AIIMS hospital, one of them wearing green Tshirt, second wearing black Tshirt. Copy of said daily diary was entrusted to PW11 for proceeding to spot with Ct. Naveen
16. Altogether different description of the accused given in SC No. 40/2011 10/30 State Vs. Rajeev @ Rajesh and Others Ex. PW1/A has been herein before elicited at the outset in para1, which is not repeated again for the sake of brevity. In the information recorded in DD No. 55B, Ex. PW3/A, there is no mention of snatching/robbery of purse by the offenders but in Ex. PW1/A, there is mention of snatching of the purse as well by the offenders.
17. When examined in court, PW1 further improves upon his version saying he was robbed of a green colour purse containing ten new currency notes of Rs. 100/ denomination, which he had borrowed from one acquaintance namely Shamim on 10.10.05. PW1 made further improvements that on the night of occurrence, he also had Rs. 500/ with him, which he earned that day which was also robbed from his possession but the accused has spent that amount. Within minutes, in the course of the crossexamination, PW1 somersaulted from his aforesaid version by saying he earned approximately Rs. 475/ that day, which amount was not in his purse but was in his shoe and he had saved that amount from the culprits. Immediately, thereafter PW1 elicited that when the incident took place, he had left the place of occurrence where one of his chappals was also left behind while the SC No. 40/2011 11/30 State Vs. Rajeev @ Rajesh and Others other chappal he was wearing. PW1 described his chappals (sleepers) as of yellow colour rubber. If PW1 was wearing the sleepers (chappals), how could he keep the earnings of the day amounting to Rs. 475/ in it? Also, PW1 belies himself on this count by aforesaid contradictory version.
18. PW1 testified that the three boys who had boarded his TSR on the fateful night asked him to take a turn under the flyover near INA market, when he took turn under the flyover then they asked him to stop the TSR. It was at that place, when he stopped the TSR, then a boy caught hold of his neck with his arm from behind; other boy took a knife and the third boy started searching PW1, took out his purse containing his driving license and Rs. 1,000/ from the back pocket of his pant. PW1 also testified that one fat boy asked him if he had more money, he should handover it to them or they would kill him upon which PW1 told them that he had no more money, pursuant to which the other boy who was tall told PW1 to sit in the TSR but PW1 refused; said tall boy forced PW1 to sit in the TSR in the back seat, one tall and one slim boy sat by the side of PW1 in the rear seat and SC No. 40/2011 12/30 State Vs. Rajeev @ Rajesh and Others the fat boy started driving the TSR. Here also there are considerable improvements in the version of PW1 testified in court, since in Ex. PW1/A there is no version of such fat boy asking PW1 that if he had more money, he should handover it to those boys or they would kill him. In Ex. PW1/A, the version mentioned is that the black complexioned boy held PW1 from behind and alighted him from the TSR, the wheatish complexioned slim boy took out a knife and fair complexioned slim boy pushed PW1 in TSR and said, " agar halla machaega to tera pait phaad denge", then purse of PW1 was snatched and PW1 was made to sit in the TSR under fear. As per Ex. PW1/A, the place of occurrence where the purse was robbed from PW1 is stated to be the left side road, before INA market, so described as point A in site plan, Ex. PW17/A. Per Contra, PW1 testified that he was made to stop the TSR when he took turn under flyover and the occurrence took place at that place.
19. PW1 deposed that while the fat boy started driving the TSR, the TSR was reversed and then a road which goes towards Kotla Mubarak Pur was taken and from the circle, the offenders took a right SC No. 40/2011 13/30 State Vs. Rajeev @ Rajesh and Others turn which goes towards INA market near the drain, at which place, PW1 was asked to get out of the vehicle, where his TSR was taken away by the offenders. In Ex. PW1/A, PW1 had narrated that fat boy drove the TSR, took it from the wrong side back to the other side of the flyover towards DDA, Vikas Sadan and at the lonely pace, he was pushed from the TSR and the TSR was snatched by the boys, then it was taken away. PW1 testified that after his TSR was robbed, he came to the main road, from there he proceeded to AIIMS hospital, then went towards side of PS Lodhi Road but on way found PCR Van near Madrasa traffic signal where he narrated the occurrence to PCR officials who asked him to wait for ten minutes. It was at that place where police was called from concerned police station. As per PW1, he was taken to police station in a gypsy by police from Madrasa, his statement was recorded around 12.45am by ASI Fateh Singh and PW1 remained in police station till 5.00am on 13.10.05. PW1 in his cross examination stated that after 5.00am on 13.10.05, he was asked by the police officials to leave the police station and he was then informed that his TSR had already been intercepted by the police of Connaught Place. PW1 clarified that he was detained in police station till 5.00am SC No. 40/2011 14/30 State Vs. Rajeev @ Rajesh and Others by police. Per Contra PW11 SI Rajnish testified that he with Ct. Naveen reached INA Market Road, towards left side at 12.50am on 13.10.05 where PW1 met them and gave statement Ex. PW1/A upon which PW11 scribed Tehrir, Ex. PW11/A, sent Ct. Naveen at about 1.20am to get FIR registered at PS Kotla Mubarak Pur. PW11 stated that after 45 minutes approximately i.e. around 2.00am, Ct. Naveen and PW17 SI Fateh reached there. PW17 deposed he alongwith Ct. Naveen reached near Safdarjung flyover; INA Market at about 3.20am, remained there for 45 minutes, met PW1 there and came to PS at about 4 or 4.15am. PW17 stated that PW1 was released from the spot and he did not come with them at PS.
20. Though PW1 claimed that the purse which was robbed was of green colour containing ten new currency notes of Rs. 100/ denomination but when the allegedly seized purse, Ex. P1 of light grey colour was shown to PW1, he stated the colour of the purse as firozi, saying it belonged to him which was robbed from him. When the seized currency notes, Ex. P3/1 to 9 of Rs. 100/ denomination and two currency notes, Ex. P3/10 11 of Rs. 50/ denomination, observed SC No. 40/2011 15/30 State Vs. Rajeev @ Rajesh and Others by my Ld. Predecessor as none of them to be new notes, were shown to PW1 in the course of examination before my Ld. Predecessor, PW1 stated that due to confusion, he forgot to depose that there were two currency notes of Rs. 50/ denomination robbed from his possession but claimed these currency notes to be those which were robbed from his possession.
21. I advert to Ex. PW7/C, the seizure memo of the case property viz. said purse and the currency notes. Though, there are only eleven currency notes mentioned as seized but yet in the seizure memo, the numbers of these currency notes are not mentioned. Even in Ex. PW1/A, there is no mention of what the purse allegedly robbed from PW1 actually contained. In Ex. PW1/A, PW1 claimed of snatching of his purse but did not make it vivid and clear as to how much amount actually either the purse was containing or was so robbed from his person. On being shown the case property, Ex. P3/1 to 11, to have been recovered allegedly in purse, Ex. P1, PW1 simply claimed those articles to be belonging to him.
SC No. 40/2011 16/30
State Vs. Rajeev @ Rajesh and Others
22. In Ex. PW1/A, PW1 had mentioned that the slim boy, wheatish in complexion had taken out the knife. The complainant/victim PW1 testified that accused Rajiv whipped out a knife and showed him. In terms of the supplementary statement of PW1 under Section 161 Cr.P.C. dated 28.10.05, it was accused Manoj who had taken out the knife and brandished it and advanced threat as, " agar shor machaya to tera pait phaad dunga". PW1 had also testified that it was accused Rajiv who had removed his purse and had drove the TSR. As per aforesaid supplementary statement dated 28.10.05 of PW1, it was accused P. Basanthan who had snatched the purse and money in it from PW1, while there the role ascribed to accused Rajiv was that he apprehended neck of PW1 from back.
23. PW1 testified that accused P. Basanthan was not present at the place of occurrence with the other two accused. Despite cross examination by Ld. Addl. PP for State on resiling of PW1, PW1 stated that neither P. Basanthan was the offender nor was present at the place of occurrence accompanying other two accused persons. PW1 stated that there was a confusion, third boy was taller than accused P. SC No. 40/2011 17/30 State Vs. Rajeev @ Rajesh and Others Basanthan.
24. PW1 testified that he never had been to school but having studied in Madrasa, he knew Urdu, could sign in Hindi but could not read and write Hindi. PW1 further stated that he was not aware of the contents of Ex. PW1/A, which he had signed at PS Kotla Mubarak Pur and even he had signed 2/ 3 such likes forms when his statement was recorded. PW1 elicited that these forms were already written when he had signed them and he was not aware of their contents. Thus Ex. PW1/A was brainchild of someone else. PW1 also clarified that purse like Ex. P1 was easily available in the market. No specific identification mark of purse Ex. P1 or any peculiar feature of the purse was elaborated by PW1 by which he could identify it. Instead in his testimony, initially PW1 claimed that the purse robbed was of green colour but identified the light grey colour purse, Ex. P1 saying its colour to be firozi. PW1 even claimed that it was he who had got released the TSR on Supardari. Fact remains, as per court record and the version of PW5, the registered owner of TSR, DL1RH2362, Ex. P3, the said vehicle was got released on Supardari by PW5 and not SC No. 40/2011 18/30 State Vs. Rajeev @ Rajesh and Others PW1. Falsity in evidence of PW1 is writ large on the face of record.
25. PW1 also admitted in the course of his crossexamination that he had seen all the culprits in PS Connaught Place before he had gone for Test Identification Parade in Tihar Jail.
26. It is trite to say that the substantive evidence is the evidence of identification in court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of Evidence Act. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of the witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings.
27. Accused Rajiv as well as accused P. Basanthan refused to SC No. 40/2011 19/30 State Vs. Rajeev @ Rajesh and Others join Test Identification Parade proceedings before PW18 Ms. Barkha Gupta, the then Ld. MM on 26.10.05. The statements of the accused, Ex. PW18/C and Ex. PW18/F find mention that these accused had been shown to witnesses in the police station and police officials having taken their photographs also. Accused Manoj participated in the Test Identification Parade and was identified on 26.10.05 in the Test Identification Parade organized by PW18 and PW1 then identified him as offender. As per own version of PW1, he had been shown the accused persons at PS Connaught Place before he had gone for Test Identification Parade in Tihar Jail. Showing of the accused in police station to the witness, PW1 before organization of Test Identification Parade has accordingly made the such organized Test Identification Parade a meaningless exercise, a farce. The stance of refusal of accused Rajiv and P. Basathan to participate in Test Identification Parade accordingly stands vindicated and has been proved to be justified and no adverse inference can be carved out against these accused.
28. Adverting to the testimonies of the cited and examined SC No. 40/2011 20/30 State Vs. Rajeev @ Rajesh and Others alleged witnesses of recovery of the alleged robbed case property namely PW6, PW7, PW15, PW16 and PW19 reveals that they are telling different tales not only inconsistent with each other but also in material contradictions with each other with respect of the sequence of occurrence, the manner of recovery and the time of recovery of the allegedly robbed TSR, purse, cash as well as the apprehension of the accused persons.
29. PW6 HC Babu Lal testified that on 13.10.05 at about 3.40pm when he was present at police picket at Atul Grover Road, Connaught Place with PW7, PW15, PW16, PW19, Ct. Suresh and Ct. Mohan, then a TSR no. DL1RH2362 came from K.G. Marg, on seeing the police party, driver of TSR took Uturn and accelerated his TSR upon which they chased the TSR. PW6 stated that the TSR driver, Rajiv was apprehended by PW7; the two boys accused P. Basanthan and accused Manoj were sitting in the TSR who were also apprehended by the police officials and a button actuated knife was recovered from accused P. Basanthan whose proceedings were drawn separately in case FIR No. 606/05, PS Connaught Place. SC No. 40/2011 21/30
State Vs. Rajeev @ Rajesh and Others
30. PW7 SI Naresh Malik testified that on 13.10.05, he was performing picket duty with other staff at Atul Grover Road around 3.45pm when TSR, DL1RH2362 driven by accused Rajiv came, on seeing the police, accused Rajiv took Uturn and tried to flee. Accused Rajiv and the other two accused in the TSR were apprehended.
31. PW15 Ct. Satender testified that in the night of 1213/10/05, when he was present at picket at Atul Grover Road with PW6, PW7, PW16, PW19 and Ct. Suresh then at about 3.40am, TSR DL1RH2362 came from side of K. G. Marg, upon seeing the police picket the TSR started moving back but was stopped. The driver of the TSR was found to be accused Rajiv. Two boys sitting in the TSR started running , were apprehended, two knives were recovered from them. PW15 elicited that the said TSR was found to be snatched by them in the same night from area of INA market. PW15 also stated that he was unable to identify those three persons as he had forgotten their description due to lapse of time.
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32. PW16 Ct. Brijender testified that on 13.10.05 when he was on duty at picket at Atul Grover Marg with PW6, PW7, PW15, PW19, Ct. Suresh, Ct. Mohan Lal then at about 3.40pm, one TSR no. DL1RH2362 was found coming from the side of K.G. Marg, on seeing the police party the TSR started turning back but was stopped. Driver Rajiv and two persons sitting in TSR namely Manoj and P. Basanthan were inquired and from possession of P. Basanthan and Manoj, one button actuated knife each was recovered. PW16 stated that due to lapse of time, he could not identify all the accused persons. Despite crossexamination of PW16 by Ld. Addl. PP, he could not identify any of the accused as those persons apprehended with the TSR.
33. PW19 HC Satpal testified that on 13.10.05, at about 3.40pm, when he alongwith PW7 was present at the checking picket at Atul Grover Marg in area of PS Connaught Place then from the side of K.G. Marg, TSR DL1RH2336 came, upon seeing the police party the TSR turned back. The two persons sitting on the back seat of the TSR started running leaving behind the TSR and one amongst them SC No. 40/2011 23/30 State Vs. Rajeev @ Rajesh and Others was apprehended whose name was revealed as Manoj Kumar, from whom one button actuated knife was recovered from his right side pant pocket. PW19 did not say of PW6, PW15, PW16 to be present at picket, nor of the apprehension of the driver and the other person sitting on the back seat of the TSR nor has named or identified those two persons. Even PW19 did not say a word of any knife recovered from the possession of accused P. Basanthan.
34. PWs 6, 15, 16 and 19 did not whisper a word of recovery of purse Ex. P1 containing currency notes Ex. P3/1 to 11 from any or all accused. PW7 simply stated Ex. P1 containing Ex. P3/1 to 11 was recovered from personal search of accused but he did not specify the name of such accused.
35. I advert to Ex. PW12/A, the copy of DD no. 56B dated 13.10.05 where time of its recording mentioned is 10.30 hours and information recorded to be that duty officer Connaught Place informed of the TSR DL1RH2362 which was snatched by three boys on knife point, seized in FIR no. 604/05, under Section 411/34 IPC, PS Connaught Place and the three accused would be produced at SC No. 40/2011 24/30 State Vs. Rajeev @ Rajesh and Others 2.00pm in the Patiala House Court. The accused were produced before the link of the Area MM on 14.10.05.
36. PW7 testified that he did not remember which accused was sitting on the rear seat of the TSR and on which side when apprehended, stating however accused Manoj and P. Basanthan were sitting on the rear seat. PW7 also testified that rukka was sent around 4.15pm on the basis of which FIR no. 604/05 was registered with PS Connaught Place and at the time of apprehension of the accused, the traffic was moving though no public person was asked to join the proceedings. The case file of FIR no. 604/05 had been tagged with this case wherein under Section 411/34 IPC, the accused were discharged by the court of Metropolitan Magistrate. Bare perusal of the file of case FIR no. 604/05, PS Connaught Place reveals of the arrest memos of accused Basanthan, Manoj Daundial and Rajiv @ Rajesh finding mention the time of arrest as 6.35pm; 6.25pm and 6.00pm respectively at Atul Grover Road, Connaught Place.
37. PW1 has been vivid and clear in his testimony that on SC No. 40/2011 25/30 State Vs. Rajeev @ Rajesh and Others 13.10.05, he remained at police station till 5.00am and at that time when he was asked by the police to leave the police station, he was informed that his TSR had already been intercepted by the police of Connaught Place. PW15 Ct. Satender Kumar had twice said in his testimony that he as well as other members of police were present at the picket duty in the intervening night of 1213.10.05, specified the time as 3.40am when the said TSR was intercepted, seized and found to be snatched in the very same night from area of INA market. Followed by that is the afore elicited version contained in Ex. PW12/A, DD no. 56B, PS K.M. Pur dated 13.10.05 at 10.30 hours of receipt of information of said TSR interception, seizure and arrest of accused persons and the subsequent information of the production of the accused at 2.00pm at Patiala House Court. Ex. PW3/A, copy of DD no. 55B, the preceding daily diary of Ex. PW12/A finds mention the date 12.10.05 and the time as 1.25am, night. It also makes it vivid and clear that the subsequent DD viz. DD no. 56B dated 13.10.05, Ex. PW12/A would be of 10.30 hours i.e. before noon and not of any subsequent time or date.
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State Vs. Rajeev @ Rajesh and Others
38. The allegedly seized currency notes, the stated robbed notes were eleven in numbers. Their quantity was not such for which much pains were required to be taken by the seizing police officials to record the number of those currency notes. Yet, for reasons best known to PW7, the numbers of the currency notes were not mentioned in seizure memo Ex. PW7/C. The said currency notes Ex. P3/1 to 11 were not having any specific identity marks to be identified by the victim. It was very easy for the complainant/victim to claim the currency notes shown as to be projected as one which were robbed. Even initially, PW1 claimed that the robbed currency notes were new, ten in number and of denomination of Rs. 100/ each while the recovered currency notes, interalia, containing two currency notes of denomination of Rs. 50/, Ex. P3/10 - 11 were observed by my Ld. Predecessor to be not new notes. In Ex. PW1/A, the only mention was purse having been robbed but PW1 had not specified as to what were the contents in the purse.
39. The exaggerations, embroideries, embellishments, material contradictions, severe infirmities embedded in the testimonies SC No. 40/2011 27/30 State Vs. Rajeev @ Rajesh and Others of complainant/victim, PW1 and the cited and examined alleged recovery witnesses PW6, PW7, PW15, PW16 and PW19 project not only the fact that embroidery has been given to the version of robbery of property from PW1 complainant and the alleged recovery of the TSR, purse and cash allegedly from accused but they also bring the version of these witnesses under cloud of doubt as they have corroded the reliability, credibility and trustworthiness of these witness. PW1 can be categorized as neither wholly reliable nor wholly unreliable witness as categorized in the case of V. Thevar (supra). PW1 did not identify accused P. Basanthan as the offender of offence of robbery or sharing common intention with other accused. PW1 also wrongly identified accused Rajiv to have brandished the knife in material contradiction to his previous version of knife been brandished by accused Manoj. Despite claiming the purse robbed to be of green colour, PW1 identified light grey colour purse Ex. P1 claiming it to be the robbed purse belonging to him saying it was of firozi colour. The presented case of prosecution including the version of PW15 of interception of the robbed TSR, apprehension of the accused, recovery of two knives from two of accused on the same night when TSR was SC No. 40/2011 28/30 State Vs. Rajeev @ Rajesh and Others snatched and the time of such interception to be 3.40am; the information received from PS Connaught Place scribed in DD no. 56B, PS Kotla Mubarak Pur on 13.10.05 at 10.30 hours, when all these facts are considered in totality on carefully screening of the afore elicited and appreciated evidence of witnesses then the possibility of false implication of the accused on planting of case property upon them, PW1 identifying accused on basis of having seen them at PS Connaught Place before organization of Test Identification Parade can not be ruled out.
40. It would be extremely hazardous to place implicit reliance on wavering testimony of PW1 and intra contradictory versions of witnesses PW6, PW7, PW15, PW16 and PW19 regarding the interception of alleged robbed TSR, apprehension of the accused and recovery of the alleged robbed purse and sum of money. The prosecution version on the face of record is full of doubts and unworthy of acceptance. From the evidence of prosecution, it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely SC No. 40/2011 29/30 State Vs. Rajeev @ Rajesh and Others new case has to be reconstructed by divorcing essential details presented by the prosecution completely different from the context and the background against which they are made. The only available course to be made is discard the evidence in toto. In my considerable opinion, the prosecution has not been successful in proving its case against the accused persons beyond reasonable doubt. Accused persons are held not guilty and are acquitted. Bail bonds of accused on bail are cancelled and their sureties are discharged. Superintendent Jail be directed to release accused Rajiv from JC if not required in any other case.
File be consigned to Record Room.
Announced in the open court (GURVINDER PAL SINGH)
on date 24/08/2011 ASJ (FTC)/SD/ NEW DELHI
SC No. 40/2011 30/30