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Delhi District Court

State vs . 1. Guru Sewak Singh @ Happy on 5 October, 2013

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


Sessions Case No. 18/2013
Unique Case ID: 02404R036692012


State                   Vs.     1.      Guru Sewak Singh @ Happy
                                        S/o Gurmukh Singh
                                        R/o B­4/287­C, Lawrance Road,
                                        Keshav Puram, Delhi. 
                                        (Convicted)

                                2.      Birj Mohan
                                        S/o Balram
                                        R/o G & JU­40 D, 
                                        Pitam Pura, Delhi. 
                                        (Acquitted)

FIR No.                 :       271/2012
Police Station          :       Ashok Vihar 
Under Section           :       392/397/201 Indian Penal Code.

Date of committal to Sessions Court  : 06.02.2013
Date on which orders were reserved  : 09.09.2013
Date on which judgment pronounced : 25.09.2013

JUDGMENT

Brief Facts:

(1) As per the allegations, on 28.10.2012 the accused Guru Sewak Singh @ Happy and Brij Mohan hatched a criminal conspiracy pursuant to which at about 6:45 PM at H. No. H­96, Ashok Vihar, State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 1 Phase­I, the accused Guru Sewak Singh @ Happy committed robbery of a gold chain and gold ear rings from the possession of complainant Usha Madan on the point of screw driver. It is further alleged that thereafter on 29.10.2012 at Shop No. 1638­B, Mor Wala Phatak, Dariba Kalan, Chandni Chowk, the accused Brij Mohan converted the robbed articles i.e. gold chain and gold ear rings into another jewelry items after melting the same.

Case of Prosecution in brief:

(2) Brief case of the prosecution is that on 28.10.2012 on receipt of DD No. 19A the Investigating Officer SI Ajay Kumar along with HC Umed Singh reached at H. No. H­96, Ashok Vihar, Phase­I where he met the complainant Usha Madan who made her statement alleging that on that day (i.e. 28.10.2012) at about 6.45 PM she was present in her house when a person aged about 35 years came and asked her about her servant on which she replied that her servant was not at home. On hearing this the assailant took out a screwdriver and threatened her saying that he would insert the screwdriver into her stomach (tere pet me ghused dunga) on which she raised an alarm and on hearing noise her husband came out of his room and he asked the assailant what was the matter but in the meantime the said person snatched the gold chain from her neck and thereafter on hearing the noise her servant who was in the bathroom also rushed to there and he State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 2 tried to overpower the assailant but the assailant also snatched her ear rings from her ears and ran away from the spot but in that process the part of the gold chain fell in the room itself. (3) On the basis of the above statement, a rukka was prepared and FIR was registered. During investigations the accused Guru Sewak Singh and Brij Mohan were arrested and after completing the investigations, the charge sheet was filed in the court.

CHARGE (4) Charge under Section 392 read with 120­B and 201 read with 120­B were settled against the accused Guru Sewak Singh @ Happy and Brij Mohan. Further, charge under Section 397 IPC was also settled against the accused Guru Sewak @ Happy. Both the accused pleaded not guilty and claimed trial.

EVIDENCE (5) In order to discharge the onus upon it, the prosecution has examined as many as seven witnesses:

Public Witnesses:

(6) PW3 Smt. Usha Madan is the victim / complainant. She has deposed that on 28.10.2012 at about 6.45 PM she was sitting in the outer room of their house on the Sofa and one male aged about 30­35 State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 3 years entered their house and came to her and he asked her about his servant and she informed him that her servant was not there.

According to her, this person was holding a screw driver in his hand and he threatened her that he would stab her with the screw driver in her stomach. In the meanwhile her husband also came there and after hearing their voices her servant Umesh Dass also came there but the above person / assailant snatched her gold chain from her neck and also snatched her gold ear ring from her right ear. However, the larger portion of the chain fell down in the room but the assailant ran away with the remaining small part of the gold chain and one gold ear ring. Witness has further deposed that her servant Umesh Dass tried to apprehend that person but the assailant ran away from there and she received some injury on her right ear. Their neighbourhood persons made call at 100 number and police of PCR and the local police reached at their house within 5­6 minutes. Witness has further deposed that she informed all these facts to the police and police recorded her statement which is Ex.PW3/A bearing her signatures at point A. According to her she can identify the assailant who had committed robbery.

(7) Witness has pointed out towards accused Guru Sewak Singh and identified him as the assailant who had shown the screw driver to her and snatched her gold chain and ear ring. Witness has correctly identified one screw driver as the same shown to her by the accused State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 4 Guru Sewak. The screw driver is Ex.P­1.

(8) During her cross­examination by Ld. Defence Counsel, witness has deposed that accused Guru Sewak asked her about her servant and she informed him that the servant was not present there and has voluntarily explained that her servant Umesh Dass was present in her house but she deliberately to the assailant said that her servant is not present in the house. According to her, their neighbour residing in front of their house made call to the police at 100 number and she along with her husband were present in the house at the time of incident and their servant was also present in the house. Witness has further deposed that police reached their house and recorded her statement and she do not know whether police recorded statement of her husband and servant Umesh Dass. According to her, 2­4 public persons who heard their voices reached at her house and they were present when the police reached there and police recorded her statement verbatim as told by her to them. Witness has further deposed that police also read over her statement to her after recording the same and she identified the screw driver as she had seen the same in the hand of accused but she is unable to tell whether such kind of screw driver are easily available in the market or not. Witness has denied the suggestion that police did not read over her statement to her or that she put her signatures on a blank paper and police met her only once. Witness has denied the suggestion that accused Guru State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 5 Sewak was brought at her house by the police. Witness has denied the suggestion that no such incident took place with her or that the accused did not show any screw driver to her or that her gold chain and ear ring were never snatched by anyone. Witness has denied the suggestion that she was deposing falsely.

(9) PW4 Sh. Baldev Raj Madan is the husband of complainant Usha Madan. This court has observed that the witness Baldev Raj Madan is extremely old, unable to walk without help, hard of hearing with a weak eye sight. According to the witness on 28.10.2012 at about 6.45 PM he was inside his house while his wife who is unable to walk without help on account of her age related problems, was sitting in the outer room of their house on the Sofa. He further deposed that he suddenly heard voice of his wife from the other room on which he went to that room and found one male person was standing next to his wife and he saw that he (assailant) suddenly snatched her gold ear ring and chain which she was wearing. According to him, at that time the assailant was holding a screw driver in his hand and on hearing their voices, his servant Umesh Dass also came there and started chasing the assailant but the assailant ran away. The witness has further deposed of having noticed a larger portion of gold chain which the assailant had snatched had fallen down while the assailant was running and with the remaining small part of the gold chain and one gold ear ring. He has also State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 6 deposed that his servant Umesh Dass tried to apprehend that person but the assailant ran away from there. Witness has further deposed that he cannot identify the said person because he could not see his face properly.

(10) During his cross­examination by Ld. Defence counsel, witness has denied the suggestion that no incident of robbery took place at their house with his wife or that no screw driver was shown by any assailant to his wife. Witness has further denied the suggestion that no incident took place in his presence or that what he was deposing was according to the version given by his wife to him. Witness has denied the suggestion that he was deposing falsely. (11) PW5 Umesh Dass is the servant of the complainant. He has deposed that he has been working at H. No. H­96, Ashok Vihar, Phase­I, Delhi in the house of Baldev Raj Madan and Usha Madan since five years as a domestic servant. According to him, on 28.10.2012 at about 6.45 PM, he was present in the bath room of the house and he heard the loud voices/cries of Baldev Raj Madan and came out of the bathroom and he saw that in the drawing room one person was snatching ear ring and chain of Usha Madan and he was also holding a screw driver in his hand. Witness has further deposed that he tried to apprehend that person but he ran away from there and he apprehended that person outside the gate but he told him that he would stab him by the screw driver in his stomach if he tried to State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 7 apprehend him but due to fear he left his hand and thereafter he ran away from there. According to him, he had also previously seen that assailant about five to six days before the incident outside the house at the place where one dhobi was doing the work of ironing the clothes. Witness has further deposed that the larger portion of chain fell down at the spot whereas the smaller portion of the chain and the ear ring were taken away by the assailant whom he can identify. (12) The witness thereafter pointed out towards the accused Guru Sewak Singh and identified him as the assailant who committed robbery of gold chain and ear ring from Usha Madan and holding screw driver in his hand. Witness also identified one screw driver as the one which was the assailant was holding at the time of incident which screw driver is Ex.P­1.

(13) During his cross examination by Ld. Defence counsel, witness has deposed that he has been residing in Delhi since five years and he has been working in the above said house since then and his police verification had also been done on the request of Baldev Raj Madan. According to him, during the incident the screw driver fell down on the ground from the hands of the accused Guru Sewak near the gate of the house when he was following him but he again held the screw driver in his hand. Witness has further deposed that he had stated to the police that after hearing the voices / cries of Baldev Raj Madan he came out from the bath room. When confronted with State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 8 Ex.PW5/DX­1 it was not found so recorded. Witness has further deposed that police reached at the spot within five minutes and recorded his statement and also of Baldev Raj Madan and Usha Madan. According to him, his statement was read over to him by police after recording the same at the spot and statement of Usha Madan was recorded by the police in his presence. Witness has admitted that Usha Madan had stated to the police that he was not present in the house and has voluntarily explained that Usha Madan felt that perhaps he was out of the house whereas he was present in the bathroom. Witness has denied the suggestion that he was not present in the house at the time of incident or that no such incident took place in his presence. Witness has further deposed that police conducted the proceedings for about one hour and also remained at the spot upto 10.00 PM. He has also denied that he did not give the description of the assailant to the police or that he had not stated to the police that he had seen the assailant about five to six days before the day of incident at the place where the dhobi / washerman used to iron the clothes in front of the house of Baldev Raj Madan. However, when the witness was confronted with the statement Ex.PW5/DX­1 it was not found so recorded in the aforesaid manner, where it was only recorded that on the same day morning he had seen the assailant in front of their house at the stand of Dhobi. Witness has further explained that during the incident the accused Guru Sewak was State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 9 standing just near Usha Madan and he was holding hand of Usha Madan. According to the witness he did not know the accused Guru Sewak before the day of incident but states that he had seen him at the taxi stand as he (Guru Sewak) was working there. Witness has admitted that a quarrel had taken place between him and Guru Sewak when he was urinating at the gate of their house on which he protested the same. Witness has further deposed that accused Guru Sewak was not arrested in his presence. Witness has denied the suggestion that accused Guru Sewak was brought to their house after he was arrested. Witness has further denied the suggestion that accused had pointed out their house. Witness has further deposed that he went to the Police Station only once for recording of his statement in this case and had informed the police about the description, size and colour of the screw driver though he did not tell the police if the screw driver was rusted or not. He has explained that he had raised an alarm when the incident was committed on which two persons came to their house after hearing their cries. (14) According to him, police recorded his two statements i.e. one at his house and another at the Police Station. Initially the witness stated that he never came to the Rohini Court but thereafter again explained that he came to the Rohini Courts once to meet his friend but he does not remember the date when he came to Courts Complex and has voluntarily explained that it may be 6th day of month. State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 10 Witness has further deposed that in the Rohini Courts, one police official SI Ajay Kumar met him alone at the main gate of Rohini Court Complex. According to him, accused Guru Sewak was with another police official and he identified him as the assailant and also the smaller portion of the gold chain and the ear ring which were allegedly kept in the pocket by the accused Guru Sewak Singh after the incident. Witness has further deposed that he had not stated to the police that the accused kept the gold chain piece and ear ring in his pocket. Witness has denied the suggestion that no such incident took place in his presence or that he was deposing falsely. Police / Official Witnesses:

(15) PW1 HC Hukum Singh has tendered his examination­in­ chief by way of affidavit which is Ex.PW1/1 wherein he has relied upon copy of FIR No. 271/12 Ex.PW1/A bearing his signatures at point A (Original seen and returned) and endorsement on rukka which is Ex.PW1/B. (16) In his cross examination by Ld. Defence counsel, witness has deposed that HC Umed came at the Police Station at about 8.15 PM and he took about 10­15 minutes for registration of FIR and HC Umed Singh went away with copy FIR and original rukka at about 8.30PM and he does not remember the name of the computer operator who recorded the FIR in the computer. Witness has denied the suggestion State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 11 that he recorded the FIR later on and ante timed at the instance of the Investigating Officer. Witness has denied the suggestion that he was deposing falsely. According to him copy of the FIR was sent to the concerned MM on the next day through the Naib Court. (17) PW2 HC Rishi Raj has tendered his examination in chief by way of affidavit which is Ex.PW2/1 wherein he has relied upon document i. e. entry in register no. 19 vide S.No. 3381/12 copy of which is Ex.PW2/A and S.No. 3382/12 copy of which is Ex.PW2/B. (Original register seen and returned).

(18) In his cross examination by Ld. Defence counsel, witness has admitted that about the fourth para having been mentioned in the verification of the affidavit though there are only three paragraphs in the affidavit. According to him he does not remember the time when the above said exhibits were deposited in the malkhana and he has not mentioned the time in the register no.19 when the above said case property were deposited in the Malkhana. Witness has denied the suggestion that he has mentioned the entries in the register no.19 later on at the instance of the Investigating Officer.

(19) PW6 HC Umed Singh Dabas has deposed that on 28.10.2012 he was posted at Police Station Ashok Vihar and on that day at about 6:55 PM after receiving the DD No. 19A, he along with SI Ajay reached at H­96, Ashok Vihar, Phase I, Delhi where Usha Madan met them who alleged that she was robbed by a person on the State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 12 point of screw driver and took away one piece of gold chain and one gold ear ring. The witness has deposed that SI Ajay recorded her statement in detail and also prepared the rukka on the same and got the FIR registered through him (Witness).

(20) Witness has further deposed that on 30.10.2012 he again joined the investigations with SI Ajay and Ct. Narsi and on that day at about 8:45 PM they reached at Prerna Chowk, Keshav Puram, Delhi where one person was coming out from the park and who was running after seeing the police party and he was apprehended by them. According to him, that person disclosed his name as Guru Sewak Singh @ Happy and he was interrogated by SI Ajay and Guru Sewak confessed about his involvement in the robbery of house No. H­96, Ashok Vihar, Phase I, Delhi. Witness has further deposed that Investigating Officer arrested accused Guru Sewak vide arrest memo Ex.PW6/A and on his formal search Rs 1,020/­ were recovered from his possession and he disclosed that he had sold the robbed articles to Brij Mohan at Daribakalan for Rs 5,050/­ and he spend the money and the above said Rs 1,020/­ were the remaining amount. According to him. the Investigating Officer kept Rs 1,020/­ in a cloth pullanda and sealed the same with the seal of AKM and the said money was in the form of one currency note in denomination of Rs 500/­, five currency notes in denomination of Rs 100/­ and one currency note in denomination of Rs 20/­. Witness has further deposed that State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 13 Investigating Officer seized the pullanda vide seizure memo Ex.PW6/B and disclosure statement of accused was recorded vide Ex.PW6/C. (21) According to the witness he again joined the investigation with the Investigating Officer and Ct. Narsi on 31.10.2012 and they along with accused Guru Sewak reached at H Block park at about 10.00AM and at the instance of the accused Guru Sewak one screw driver, weapon used in this case from the corner of the park in the bushes after which the Investigating Officer took the measurement of the screw driver and the total length of the screw driver was found to be 19cm, the length of iron rod of the screw driver was 9.5cm and the handle was of 9.5cm and Investigating Officer sealed the screw driver in a cloth pullanda and sealed the same with the seal of AKM. The witness has deposed that at about 9.00 AM on 31.10.2012 and Investigating Officer seized the pullanda vide Ex.PW6/D. (22) Witness has further deposed that thereafter they along with the accused Guru Sewak reached at Dariba Kalan and accused Guru Sewak pointed out a Shop No. 1638/B, Phatak Wala More, Dariba Kalan as the shop where he had sold the robbed gold articles and the Investigating Officer made inquiries from the shopkeeper who disclosed his name as Brij Mohan. Thereafter, Brij Mohan confessed that he had purchased the gold articles from accused Guru Sewak for the less money and Brij Mohan was arrested by the Investigating State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 14 Officer vide memo Ex.PW6/E and his personal search was also taken vide Ex.PW6/F and his disclosure statement was also recorded by the Investigating Officer vide Ex.PW6/G. (23) Witness has correctly identified both the accused as well as the screw driver Ex.P­1 and also the currency note of Rs.500/­, five currency notes of Rs.100/­ and one currency note of Rs.20/­ as the same as recovered from the possession of accused Guru Sewak and the same are collectively Ex.P­2.

(24) In leading questions put by Ld. APP for the state, witness has admitted that the Investigating Officer prepared the pointing out memo of the shop No. 1638/B, Dariba Kalan, More Wala Phatak, the shop of accused Brij Mohan at the instance of the accused Guru Sewak which pointing out memo is Ex.PW6/H bearing his signatures at point A. (25) In his cross examination by the Ld. Defence counsel, witness has denied the suggestion that they did not reach the shop no. 1638/B Dariba Kalan, Mor Wala Phatak or that accused Brij Mohan did not make any disclosure statement in his presence. Witness has further denied the suggestion that all the written work was done in the Police Station or that he put his signatures on the documents at the instance of the Investigating Officer. Witness has denied the suggestion that signatures of accused Brij Mohan were obtained on the blank papers State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 15 at the Police Station or that he was forced to write an application in the police station. Witness has denied the suggestion that he was deposing falsely against the accused Brij Mohan or that accused Brij Mohan is innocent and falsely implicated in this case. (26) Witness has further deposed that the DD No. 19­A was handed over to him by the Duty Officer which he handed over to the Investigating Officer in the Central Market Police Booth, Ashok Vihar, Delhi at about 7.00 PM. According to him, he along with SI Ajay reached at H Block H.No.96, Ashok Vihar. He has explained that the distance between police booth and the H.No.96, H Block is about 1½ kilometer where they reached on their own private motorcycle. Witness is unable to tell the time when they reach there and states that no other public person accompanied them when they proceeded towards the spot but there were 5­6 public persons at the spot when they reached there. The witness has also deposed that after reaching the spot Investigating Officer recorded statement of complainant Ms. Usha Madan. Witness has further deposed that he left the spot for the Police Station with the rukka at about 8.00 PM and he handed over the rukka the Duty Officer at about 8.10­8.11 PM but he does not know the name of computer operator who recorded the FIR No. 271/13 in the computer nor he can tell the time when he left the Police Station after registration of FIR and he left the Police Station with rukka and copy of FIR. According to him, he reached at State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 16 the spot at about 9.00 PM by his own motorcycle and after handing over the copy of FIR and rukka to the investigating officer they both returned to the Police Station. He is unable to tell the time when they reached back to the police station. Witness has further deposed that no statement was recorded by Investigating Officer in his presence of any witness who were present there and his statement was recorded in the police station. Witness has denied the suggestion that all the writing work was done while sitting in the Police Station and he only signed the documents at the instance of the Investigating Officer. (27) Witness has further deposed that accused Guru Sewak was identified at the instance of secret informer and accused Guru Sewak was apprehended by Ct. Narsi. He is unable to tell the serial number of the currency notes recovered from the possession of accused Gursewak. According to him, no public persons had gathered there and has denied the suggestion that public persons gathered at the spot of apprehension of accused Gursewak. Witness has further deposed that the proceedings and written work was done by the Investigating Officer while sitting on the chabootara near the park and thereafter they came back to the Police Station with the accused Guru Sewak and the disclosure statement of accused Guru Sewak was recorded at Prerna Chowk and he cannot tell to whom the pullanda was handed over by the Investigating Officer. Witness has denied the suggestion that all writing work was done while sitting in the Police Station and State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 17 he only signed the documents at the instance of the Investigating Officer. Witness has also denied the suggestion that Investigating Officer had obtained the signatures of accused Guru Sewak on blank papers or that later on they were converted into various documents like disclosure statement and other incriminating documents. (28) Witness has further deposed that on 31.10.2012 they started from the Police Station for recovery of screw driver on the basis of disclosure statement and they reached at H Block park at about 10.00 AM and they used official gypsy for this purpose. According to him, accused Guru Sewak was with them and he was wearing only pant and shirt with no other cloth was over his body. He is unable to tell the exact place of the park from where the screw driver was recovered. Witness has admitted that being the public place the park is accessible to general public. Witness has deposed that he does not remember as to how many public persons present there in the park when they reach there and no person came to them at that time. Witness has denied the suggestion that accused Guru Sewak was not with them at that time. According to him, it took about 30­45 minutes for conducting the proceedings in the park and from there he along with SI Ajay, Ct. Narsi and accused Guru Sewak Singh proceeded for Dariba Kalan after which they reached Dariba Kalan after about two hours and in Dariba Kalan accused Guru Sewak took the police party directly to the shop No. 1638/B. He has explained that they took State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 18 about 1 - 1 ½ hours in proceeding at Dariba Kalan. Witness has further deposed that no statement was recorded there except the disclosure statement of accused Brij Mohan and thereafter they reached at the Police Station at about 3.45 PM and stayed there for about 5­10 minutes and thereafter they left for Rohini court and he cannot tell the time when they reached at Rohini Court. Witness has denied the suggestion that nothing was recovered from the personal search of accused Guru Sewak or that no screw driver was recovered at the instance of accused Gursewak.

(29) PW7 SI Ajay Kumar has deposed that on 28.10.2012 he was posted at Police Station Ashok Vihar and on that day after receiving DD No. 19A he along with HC Umed Singh reached at H 96, Ashok Vihar, Phase­1 and the said DD is Ex.PW7/A. According to him, on reaching at the spot complainant Usha Madan met them and she alleged that a robbery took place with her on the point of screw driver and the assailant had taken away one ear ring and the piece of gold chain from her possession. Witness has further deposed that he recorded her statement in detail vide Ex.PW3/A and Usha Madan put her signatures at point A and he attested the same with his signatures at point B and he made endorsement upon her statement which is Ex.PW7/B bearing his signatures at point A and he handed over the tehrir to the HC Umed Singh who went to Police Station for registration of FIR and he prepared site plan at the instance of Usha State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 19 Madan which is Ex.PW7/C bearing his signatures at point A. Witness has further deposed that he recorded statement of Baldev Raj Madan (husband) and Umesh Dass (domestic servant).

(30) Witness has further deposed that on 30.10.2012 at about 8 PM he received a secret information that assailant of this case was present near Prerna Chowk Keshav Puram in a park and he along with HC Umed and Ct. Narsi reached Prerna Chowk and at about 9­9.15 PM, one person came from the park and after seeing the police party tried to run away but he was overpowered by them and he disclosed his name as Guru Sewak Singh @ Happy and he was interrogated by him on which he confessed about his involvement in the present incident. According to the witness he thereafter arrested him vide memo Ex.PW6/A and on formal search Rs.1,020/­ was recovered from the possession of accused Guru Sewak and he disclosed that he sold the robbed articles at Dariban Kalan Chandini Chowk Delhi for Rs.5050/­ and that he had spent the money and the above said Rs. 1020/­ was the remaining amount. The witness has further deposed that the recovered amount Rs.1020/­ was in the form of one currency note of Rs.500/­ and five currency notes of Rs.100/­ and one currency note of Rs.20/­ and he sealed the above Rs.1,020/­ in a cloth pullanda and seized the same vide memo Ex.PW6/B. Witness has further deposed that he recorded the disclosure statement of accused Guru Sewak vide memo Ex.PW6/C. State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 20 (31) Witness has further deposed that on next day on 31.10.2012 at about 10 AM, he along with HC Umed, Ct. Narsi and the accused Guru Sewak reached at the H Block Park, Ashok Vihar Phase­1 at the instance of accused Guru Sewak and at the instance of accused Guru Sewak on screw driver was recovered from the corner of the park in the bushes. According to him, the handle was made of plastic of green color and the rod of screw driver was made of iron and on the measurement total length of the screw driver was 19 cm and the rod and handle was of length of 9.5 cm each. The witness has deposed that he sealed the screw driver in a cloth pullanda with the seal of AKM and seized the same vide memo Ex.PW6/B. (32) Witness has further deposed that thereafter, at the instance of the accused Guru Sewak they reached at Dariban Kalan, Chandini Chowk, Phatak Wala Mor at Shop No. 1638 B and accused Guru Sewak pointed out the shop where he had sold the robbed gold articles for Rs.5050/­ and he prepared the pointing out memo Ex.PW6/H. The witness has deposed that he made inquiries from the shop keeper who disclosed his name as Brij Mohan who confessed that he had purchased the gold articles from accused Guru Sewak for Rs.5050/­ for the less amount, pursuant to which he arrested the accused Brij Mohan vide Ex.PW6/E and his personal search was taken vide Ex.PW6/F. According to him, the accused Guru Sewak was produced before the court and was sent to JC in muffled face and State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 21 he also moved an application for TIP of accused Guru Sewak vide PX2 bearing his signatures at point A and the TIP was fixed for 2.11.2012.

(33) Witness has further deposed that on 1.11.2012 accused Brij Mohan was produced before the court and one day PC remand was obtained and accused Brij Mohna was interrogated by him and his disclosure statement Ex.PW6/G. Witness has further deposed that on 2.11.2012 accused Brij Mohan was again interrogated by him and he was taken to the shop for the recovery of robbed articles but nothing was recovered and accused gave a written confessional statement to him which is Ex.PW7/C. According to him, thereafter accused Brij Mohan was produced before the court and was sent to JC. On 2.11.2012 accused Guru Sewak refused for TIP proceedings and he obtained the copy of the TIP on his application which is Ex.PX4 bearing his signatures at point A. (34) Witness has further deposed that on 6.11.2012 he was present at the Rohini Court Complex and Umesh Dass met him in the court complex and he identified the accused Guru Sewak as the assailant who was coming to the court for JC remand and he recorded the statement of Umesh Das.

(35) Witness has correctly identified the accused as well as the screw driver Ex.P­1 and one currency note of Rs.500/­, five currency notes of Rs.100/­ one currency note of Rs.20/­ as the same as State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 22 recovered from the possession of accused Guru Sewak which are collectively Ex.P­2.

(36) In his cross examination by Ld. Defence counsel, witness has denied the suggestion that they did not reach the shop no. 1638/B Dariba Kalan, Mor Wala Phatak or that accused Brij Mohan did not make any disclosure statement in his presence or that all the written work was done in the police station. Witness has denied the suggestion that signatures of accused Brij Mohan were obtained on the blank papers at the Police Station or that he was forced to write an application in the police station. Witness has denied the suggestion that he was deposing falsely against the accused Brij Mohan or that accused Brij Mohan is innocent and falsely implicated in this case. Witness has denied the suggestion that he has not carried out the investigation fairly. Witness has denied the suggestion that he has prepared and filed the charge sheet in a routine manner. (37) Witness has further deposed that he received the information in writing as DD No. 19A in which a knife was mentioned for snatching and the telephone number mentioned in the DD No. 19A is belonging to the complainant and Complainant did not inform me who made the call from her land line phone to the police and he was present at Central Market, Ashok Vihar where he received the DD No. 19A at about 7PM and thereafter they proceeded towards the place of incident. According to him, HC Umed was with him at that State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 23 time and they reached at the spot on his private motorcycle and the distance between the place of incident and central market is around 700­800 meters and he made inquiries from the complainant first of all after reaching at the spot and he recorded the statement of complainant before registration of the case and he recorded the statement of Baldev Raj and Umesh Dass after he sent the rukka for registration of the FIR. Witness has further deposed that he recorded the statement of complainant on two occasions and statement of Umesh Dass and Baldev Raj only once and he send the rukka at about 8:05 PM and he received the original rukka with copy of the FIR from HC Umed at about 9 PM and he recorded the statement of complainant as stated by her. He has deposed that they reached the spot at about 7:10 PM and they reached at Police Station at about 10:30­11 PM and he prepared the documents at the spot i.e. at the house of the complainant. Witness has further deposed that 5­7 public persons were present at the spot when they reached there and he did not record the statement of said public persons as they did not disclose anything about the incident. According to the witness, he did not record the statement of the person who made call from the land line telephone of the complainant to the police and has voluntarily explained that complainant did not name the person who made call from her telephone to the police. Witness has further deposed that he did not make inquiry from the washerman who used to iron the State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 24 clothes in front of the house of the complainant and has voluntarily explained that at the time of incident he was not doing any work at the said place. According to him, he did not make any inquiry from the said Washerman at any time and he recorded the statements of witnesses himself. He has deposed that he did not obtain the signatures of the complainant and HC Umed Singh on the site plan and has voluntarily explained that HC Umed was not present when he prepared the site plan as he had gone for registration of the FIR with rukka. Witness has further deposed that when they reached at place of incident it was little dark and he prepared the documents and the site plan under the electricity lights of the house of the complainant. Witness has admitted that he had not shown the source of light in the site plan. According to him, he has not shown any other house near to the house No. 96. Witness has admitted that there is no mention of Kitchen, Bathroom, Drawing room or any other structure in the site plan. Witness has denied the suggestion that he did not prepare the site plan at the spot or that he has prepared the same while sitting in the police station. Witness has denied the suggestion that he has conducted all the proceedings while sitting in the police station. Witness has further explained that no special features/ description of the assailant was disclosed by the complainant at the first instance and the information regarding the accused Guru Sewak being one of the assailant was first disclosed to him by the secret informer. Witness State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 25 has admitted that Prerna Chowk is a place with a heavy traffic and large number of people passing through the said area. According to him he did not make any public person a witness to the arrest of the accused Guru Sewak and has voluntarily explained that it was night time and no passerby stopped. Witness has further deposed that he recorded the disclosure statement of the accused Guru Sewak at Prerna Chowk and deposited the pullanda in the malkhana at about 11:30 PM on 30.10.2012. Witness has denied the suggestion that the accused was taken to the house No. 96 H Block, Ashok Vihar and shown to Umesh Dass (domestic servant of complainant) for the purposes of getting him identified him in the TIP proceedings. According to him, he cannot tell the number of the currency notes recovered from the possession of accused Guru Sewak nor he has mentioned the same in the personal search of the accused. He has stated that the sealing material including the cloth, seal etc always remained with him in the investigations kit. Witness has further deposed that the screwdriver had been recovered from near the gate of the H block from near the corner of the park and when they entered the H Block gate and the park falls on the left side but he cannot tell the directions of the corner as to whether it was east, west, north or south and has explained that it was in front of PNB Bank. According to him, he had left the Police Station in the morning at about 9:30 AM for going to the H Block on 31.10.2012 and reached the spot within ten State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 26 minutes. Witness has further deposed that only one pullanda of the screwdriver was prepared and he only deposited one pullanda of the screwdriver in the malkhana. According to him the screwdriver was deposited after the accused Brij Mohan was apprehended and brought to the police station.

(38) Witness has further deposed that they reached Dariba Kalan at around 2 PM and accused Guru Sewak had taken them there and he was the one who led him while they only followed him. Witness has denied the suggestion that Guru Sewak did not take them to Dariba Kalan. According to him, they remained at Dariba Kalan for about two hours but he did not join any public witness at Dariba Kalan. Witness has denied the suggestion that Guru Sewak did not point out any shop to the co­accused Brij Mohan at Dariba Kalan. Witness has denied the suggestion that Guru Sewak had never told them that he was known to Brij Mohan. According to him, TIP application was moved in the evening before the court at 4:30 PM. He does not recollect in whose court the application was filed. He states that the application was in his own handwriting but he cannot tell at which place this application was written by him. Witness has denied the suggestion that he took the photographs of the accused at the time of his arrest for the purpose of his identification during the TIP proceedings. According to him, Umesh Dass was taken for the purposes of TIP proceedings to the Rohini Jail but he did not take State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 27 complainant for TIP Proceedings and has explained that she was unable to move. Witness has denied the suggestion that he did not take complainant deliberately as she could not identify the accused. Witness has further deposed that he did not seize the piece of the golden chain which was left at the spot while the robbery was committed and he did not obtain the other piece of ear ring from the complainant for comparison with robbed ear ring. Witness has denied the suggestion that no piece of gold chain and ear ring was snatched or robbed by accused. According to him he does not remember how many times the accused was produced from JC before the court. He has also stated that the accused was produced before the court on 06.11.2012 from Judicial Custody and he had not moved any production warrant/ application for production of the accused and has voluntarily explained that the accused was produced before the court for extension of Judicial Custody by the order of the court. Witness has admitted that application for production warrant for 03.11.2012 was moved by him which is Ex.PW7/DX1 bearing his signatures at point A. Witness has further deposed that Umesh Dass met him at central hall of Rohini court complex on 06.11.2012 and he had recorded the statement of Umesh Dass in the court premises. Witness has admitted that neither in the statement of the complainant nor in the FIR there is mention of identification of the accused by the complainant if produced before her. Witness has denied the State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 28 suggestion that he did not carry out fair and proper investigations. Witness has denied the suggestion that accused Guru Sewak has been falsely implicated in the present case.

STATEMENT OF ACCUSED AND DEFENCE EVIDENCE:

(39) After completing the prosecution evidence, statements of accused under Section 313 of Code of Criminal Procedure were recorded wherein all the incriminating evidence / material which has come on record were put to the accused which they have duly denied. (40) According to the accused Guru Sewak Singh he has been falsely implicated by the police in the present case due to his refusal for their free rides / fateek. He has further stated that he has not committed any offence as alleged and nothing was recovered from his possession or at his instance and the alleged recovery has been planted upon him by the police. According to him he did not make any confessional or disclosure statement. He has further stated that on the date of incident he had gone to Golden Temple at Amritsar in the morning and returned on next date. He has stated that his signatures were obtained by the police forcibly on blank papers. (41) The accused Brij Mohan has stated that he is innocent and has been falsely implicated by the police and that he has not committed any offence as alleged. He has stated that he did not make any confessional or disclosure statement and that his signatures were State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 29 obtained by the police forcibly on some blank papers which were converted later on into various memos including his disclosure statement. According to him he is old ailing person suffering from heart problem, sugar and high blood pressure.

FINDINGS (42) 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:

Ocular Evidence:

(43) 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. It is evident that the entire case of the prosecution rests upon the testimonies of eye witness / victim / complainant Smt. Usha Madan and her servant Umesh Das.

State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 30 (44) The case of the prosecution is that Smt. Usha Madan and her husband (both senior citizens aged 74 and 85 years respectively) are residing at H. No. H­96, Ashok Vihar, Phase­I. On the date of incident while they were alone at home the accused taking advantage of the vulnerable position of these senior citizens entered their house and robbed Smt. Usha Madan of her gold chain and ear rings which she was wearing at the time after threatening her with a screwdriver on which she raised an alarm. On hearing the alarm of Smt. Usha Madan their servant Umesh Das also came to her room but on seeing him the assailant ran away and during this process larger portion of the gold chain which the assailant had snatched fell down on the ground while the assailant ran away with the remaining smaller portion of the gold chain and one gold ear ring which he allegedly sold to the co­accused Brij Mohan.

(45) The prosecution in support of its case has placed its reliance upon the testimonies of complainant / victim Usha Madan (PW3), her husband Baldev Raj Madan (PW4) and their servant Umesh Das (PW5). Coming first to the testimony of Smt. Usha Madan relevant portion of which is reproduced as under:

"On 28.10.2012 at about 6.45PM I was sitting in the outer room of our house on the Sofa. One male person aged about 30­35 years entered in our house and came to me and he asked me about my servant. I replied him that my servant is not here. He was State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 31 holding a screw driver in his hand and he told me that he will stab the screw driver in my stomach and meanwhile my husband also came there. After hearing our voices my servant Umesh Das also came there but the above said person/assailant snatched my gold chain from my neck and also snatched my gold ear ring from my right ear. The larger portion of the chain fell down in the room but the assailant with the remaining small part of the gold chain and one gold ear ring ran away from there. My servant Umesh Das tried to apprehend that person but the assailant ran away from there. I received small injuries on my right ear. Our neighbourhood persons made call at 100 number and police of PCR and the local police reached at our house within 5­6 minutes. I told all these facts to the police and police recorded my statement which is Ex.PW3/A bearing my signatures at point A. I can identify the assailant who had committed robbery.

At this stage the witness jas pointed out towards accused Guru Sewak Singh and identified the assailant who had shown screw driver to her and snatched her gold chain and ear ring.

I cannot identify the said screw driver. Again Said I can identify the front portion of the said screw driver.

At this stage MHC(M) produced one cloth pullanda in sealed condition with the seal of AKM and the same is opened and one screw driver is taken out and the same is shown to the witness who has correctly identified the screw driver shown to her by the accused Guru Sewak. The screw driver is State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 32 Ex.P­1."

(46) Smt. Usha Madan has been exhaustively cross examined on behalf of the accused Guru Sewak wherein she had admitted that the accused Guru Sewak had asked her about her servant on which she told that her servant was not present and has voluntarily explained that though her servant Umesh was present at home but she deliberately told the accused that he was not present. She has further stated that at the time of the incident only her husband and her servant were present in the house and has also explained that when they raised an alarm, public persons had come and when the police came only about 2 to 3 public persons remained present there. In her cross­ examination she has also explained that the police had recorded her statement in verbatim as told by her to them which statement was also read over to her. She has further explained that she could identify the screwdriver as she had seen the same in the hand of the accused. (47) Coming next to the testimony of Sh. Baldev Raj Madan (PW4). He has not identified the accused as he could not see the assailant who had his back towards him but has proved the incident. This court has observed that the witness Baldev Raj Madan is extremely old, unable to walk without help and hard of hearing and has a weak eye sight. The relevant portion of his testimony is reproduced as under:

State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 33 "On 28.10.2012 at about 6.45 PM I was inside my house while my wife who is unable to walk without help on account of age related problems, was sitting in the outer room of our house on the Sofa. I suddenly heard voice of my wife from the other room on which I went to that room and found one male person was standing next to my wife and I saw that he suddenly snatched her gold ear ring and chain which she was wearing and at that time he was holding a screw driver in his hand. After hearing the our voices my servant Umesh Das also came there and stated to chase the assailant but the said man ran away. I noticed that larger portion of gold chain which the said person had snatched fallen down while the assailant was running and with the remaining small part of the gold chain and one gold ear ring ran away from there. My servant Umesh Das tried to apprehend that person but the assailant ran away from there.

I cannot identify the said person because I could not see his face properly."

(48) In his cross examination the witness Baldev Raj Madan has denied that no incident had taken place or that no screwdriver was shown to his wife Usha Madan by the assailant. (49) Coming next to the testimony of Umesh Das (PW5). The relevant portion of his testimony is reproduced as under:

"I have been working at the above said address of Ashok Vihar, Delhi in the house of Baldev Raj Madan and Usha Madan since five years as a State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 34 domestic servant. On 28.10.2012 at about 6.45PM I was present in the bath room of the house. I heard the loud voices/cries of Baldev Raj Madan and came out of the bathroom and I saw that in the drawing room one person was snatching the ear ring and chain of Usha Madan and he was also holding a screw driver in his hand. I tried to apprehend that person but he ran away from there. I apprehended that person outside the gate but he told me that he will stab me by the screw driver in my stomach if I tried to apprehend him but due to fear I left his hand and thereafter he ran away from there. I had also seen that assailant 5­6 days before the incident outside of the house at the place where one dhobi was doing the work of ironing the clothes. The larger portion of chain was fell down at the spot and the smaller portion of the chain and the ear ring were taken away by the assailant. I can identify the assailant if shown to me.

At this stage witness pointed out towards the accused Gurusewak Singh and identified him correctly as the assailant who committed robbery of gold chain and ear ring from Usha Madan and holding screw driver in his hand.

I can identify the screw driver if shown to me.

At this stage MHC(M) produced one cloth pullanda in opened condition which was opened during the testimony of the earlier witness. The same opened and one screw driver is taken out and the same is shown to the witness who correctly identified the screw driver was the State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 35 assailant was holding at the time of incident. The screw driver is already Ex.P­1."

(50) In his cross examination, Umesh Das has explained that he had been residing in Delhi for the last five years and working with the complainant and has also explained that the police verification had been got done on the request of Baldev Raj Madan. According to Umesh Das during the incident the screwdriver had fallen down from the hand of Guru Sewak but he again held the same in his hand. He has denied that he was not present at the house at the time of the incident or that no such incident had taken place in his presence. He has admitted he had told the police that he had seen the assailant 5 to 6 days prior to the incident at the same place where the Dhobi used to iron the clothes i.e. place in front of the house of Baldev Raj Madan. However, this aspect was found to be an improvement since in his first statement to the police, he had informed the police that he had seen the assailant in front of the house at the stand of the Dhobi on the same morning. According to him, he did not know the accused Guru Sewak prior to the incident and had seen him at the taxi stand where he was working. He has denied that after Guru Sewak was apprehended he was produced in their house. He has admitted that prior to this incident a quarrel had taken place between him and Guru Sewak when he (Guru Sewak) was urinating at the gate of their house and he protested on the same. He has further explained that he had State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 36 come to Rohini court on one occasion to meet his friend where he met SI Ajay Kumar and at that time he identified the accused Guru Sewak Singh who was present along with SI Ajay Kumar and other police officials.

(51) In so far as the accused Brij Mohan is concerned his counsel has argued that there is no direct eye witness count as against Brij Mohan he is not the person who was involved in the incident but as per the case of the prosecution Brij Mohan is the person to whom Guru Sewak had sold the stolen articles.

(52) Ld. Counsel for the accused Guru Sewak has pointed out that the entire FIR and the documentation relating to the registration of the same has been created at a much later stage which was ante­ dated and ante­timed to falsely implicate the accused Guru Sewak Singh. He has pointed out that the HC Hukum Singh (PW1) who was working as Duty Officer is unable to provide the name of the computer operator who had entered the FIR in the computer and hence the possibility of the FIR being ante­dated and ante­timed cannot be ruled out. It is further stated that even otherwise going by the testimonies of various police officials as it is deposed by the complainant Usha Madan (PW3) that the police reached after 5 to 6 minutes and and her statement was recorded and hence any investigation conducted prior registration of the FIR is inadmissible into evidence and in this regard he has placed his reliance in the case State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 37 of "Rishi Vs. State", reported in 1986 Cr. UJ, 1620 (P. 1623) and "Ganesh Bhawan Patel Vs. State of Maharashtra".

(53) I have duly considered the submissions made. At the very outset I may observe that soon after the incident of robbery an independent person had made PCR call and SI Ajay Kumar (PW7) has duly proved the DD No. 19A registered on the basis of the said PCR call at 6:55 PM from District Control Room according to which the following information was given :

"ittila di hai ke phone no. 27429166 H. No. H­96, Ashok Vihar, Phase­I, senior citizen ko chaku dikha kar chain aur bali cheen kar le gaye, information received from L/Ct. Sushma No. 8998"

(54) This document i.e. DD No. 19A has been duly proved by SI Ajay Kumar (PW7) vide Ex.PW7/A which has not been effectively controverted in his cross examination. This puts to rest the controversy regarding the FIR being fabricated and antedated. The PCR record is generated electronically and once it reflects that the first information received by the Control Room was regarding robbery upon senior citizens, there is no reason to doubt the subsequent versions given by the eye witnesses. Further, in so far as the versions given by Smt. Usha Madan and Baldev Raj Madan are concerned, the accused Guru Sewak was not known to these victims prior to this incident and there is no reason why they would falsely implicate him. State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 38 The first call to PCR having confirmed the incident of robbery, the issue regarding falsely implication on account of previous quarrel between the accused Guru Sewak and Umesh Das becomes irrelevant. (55) Further, the accused Guru Sewak had refused to participate in the judicial TIP which proceedings have not been disputed by him. Thereafter, he was identified by Umesh Das in the Rohini court in the presence of the Investigating Officer SI Ajay Kumar, a fact which Umesh has reaffirmed in his testimony in the court. Both the witnesses i.e. Smt. Usha Madan (Senior Citizen) and witness Umesh Das have correctly identified the accused Guru Sewak Singh as the assailant. The incident took place on 28.10.2012 in the evening hours at around 6:45 PM inside the house of the victim where there was sufficient light and while the assailant whose face was open (uncovered) approached the victim Usha Madan with a screwdriver and threatened her. There was sufficient opportunity for Usha Madam to have observed him and hence the identification of the accused Guru Sewak in the court by Usha Madan cannot be eyed with suspicion. Further, Umesh Das (PW5) has explained that on hearing the alarm raised by Usha Madan and Baldev Raj Madan, he came out of the bathroom and saw the assailant holding a screwdriver in his hand and he caught the assailant near the gate but since the assailant threatened him with the screwdriver which initially fell down near the gate from his hand he (Umesh) got scared and left his wrist. This State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 39 explains how Umesh had sufficient opportunity to observe the identity of the assailant whom he has identified as a person whom he had seen around / near his house even earlier. This court is not oblivious of this fact that crime against senior citizens is at rise on account of their vulnerable position i.e. weak physical disposition and none to care for them. Persons with criminal dispositions who become aware of senior citizens residing alone in the particular place are the one's who exploit this situation. In his cross examination a suggestion has been put on behalf of accused Guru Sewak that even couple of days earlier there was dispute between Umesh and Guru Sewak as he was urinating outside the house and Umesh has admitted that having seen Guru Sewak at prior occasion and it is this which indicates that the accused Guru Sewak was conducting a recce and keeping a watch over the house and the complainant on one pretext or the other and on finding a suitable occasion, he committed the incident. (56) The defence offered by the accused Guru Sewak regarding false implication due to prior dispute between Umesh and Guru Sewak, does not cut much ice since I find both Usha Madan and Umesh Das to be truthful and credible witnesses. They are neither related to Umesh having special interest in him so as to be taking specially interest in him for implicating Guru Sewak. They are also not inimical or averse to the accused Guru Sewak nor have any animosity with him. Further, the reason attributed to Umesh of a State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 40 previous incident of quarrel also shows that the dispute was only when Umesh found him loitering around the house and urinating in front of the house that he objected to it. This cannot be taken a strong enough reason why Umesh would falsely implicate Guru Sewak. (57) Hence in view of the above, I hereby hold that the identity of the accused Guru Sewak Singh @ Happy as the assailant who had entered in the house of victim Usha Madan i.e. H­96, Ashok Vihar, Phase­I, on 28.10.2012 at about 6:45 PM and robbed her gold chain and ear rings which she was wearing at that point of time, stands established and proved.

Recovery of the Weapon of Offence i.e. Screwdriver:

(58) The case of the prosecution is that pursuant to the arrest of the accused Guru Sewak Singh after interrogation he made a detailed disclosure statement admitting his involvement in the present case and thereafter he got recovered the weapon of offence i.e. screwdriver from the corner of the park. Ld. Defence Counsel has vehemently argued that the disclosure statement of accused Guru Sewak is not admissible into evidence being hit by Section 25 of Indian Evidence Act and in so far as the portion regarding recovery of weapon of offence, the same has been inserted later and fabricated and hence cannot be believed. In this regard, he has placed his reliance in following judgment :

State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 41 ➢ Rajeevan & Anr. Vs. State of Kerala, reported in 2003 Cr. LT, 1572 (SC).

➢ M. Abbas Vs. State of Karnataka, 1986, Cr.LJ, 317, Karnataka High Court.

➢ Malkiat Singh & Anr. Vs. State of H.P. reported in 2010 Crl.LJ 635 (D.B.).

➢ Aslam Parvej Vs. Govt. of NCT of Delhi, 2003 Cr.LJ 2525 (SC).

(59) It is vehemently argued that the story of recovery of weapon of offence is totally false as the same was not effected in the presence or at the instance of accused Guru Sewak Singh nor the said recovery has been witnessed by any independent public person. It is evident that the recovery has been effected from an open place i.e. corner of the park from bushes. It is also argued that there is no specific identification mark on the screwdriver which was identified by both Usha Madan and Umesh Das. There was sufficient opportunity for the Investigating Officer to have joined public witness and merely to say that despite efforts they could not join the said witness is not sufficient and hence the recovery of the screwdriver cannot be relied upon.

(60) I have considered the submissions made and at the very Outset I may observe that I find merit in the argument of the Ld. Defence Counsel. The screw driver is an item of common domestic State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 42 use and easily available in the market. No where in the complaint and the statement of the witnesses the specification or details of the screw driver have been given nor the witnesses highlighted any specific identification marks. Further, the place of alleged recovery is an open area i.e. corner of the park duly accessible by the public persons and the entire proceedings having not been witnessed by any independent credible witness. The Hon'ble Supreme Court in the case of Trimbak Vs. State of Madhya Pradesh reported in AIR 1954 SC 39 held that:

"........ The fact of recovery does not conclusively prove that the accused was in possession of these articles when the fields from where the recovery was made, was an open one and accessible to all and sundry. This fact of recovery is compatible with the circumstance of somebody else having placed the articles there. From the bare fact that the accused was residing in the complainant's village, his knowledge that the ornaments were stolen property, cannot legitimately be concluded. Therefore, the prosecution has failed to prove that the stolen property was in possession of the accused and that he had the knowledge that they were stolen articles...."

(61) Also, in the case of Mani Vs. State of Tamil Nadu reported in 2008 AIR (SC) 1021 it has been held that:

"....Where the discovery of the relevant articles have been made from the open ground though State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 43 under the bushes, that too after more than 10 days of the incident, such discovery would be without any credence...."

(62) Further, it is evident that no evidence has been led by the prosecution to show that the screwdriver which the accused possessed at the time of incident was a "deadly weapon". Section 397 IPC envisages that if at the time of robbery the offender uses any deadly weapon, the imprisonment with with such offender shall be punished shall not be less than seven years. Thus, what is essential to satisfy the word "uses" for the purpose of this Section, is that the robbery being committed by an offender, who was armed with a deadly weapon, which was within the vision of the victim, so as to be capable of creating terror in the mind of the victim. Screwdrivers are weapons available in various sizes and may just cause little hurt or may be the deadliest. They are not deadly weapons per se such as would ordinarily result to death by their use. What would make a screwdriver deadly is its design or the manner of its use such as it calculated to or is likely to produce death. This is a question of fact and it was required to be proved by the prosecution that the screwdriver used by the offender was a deadly one which onus they have not been able to discharge to the satisfaction of the Court. (Ref.:

Ramu @ Raju Vs. State, Crl. Appeal No. 874/2009 and Crl. State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 44 Appeal No. 4/2010, decided on 3.12.2010 by Hon'ble Mr. Justice A.K. Pathak.). Further, though Smt. Usha Madan alleges that she had received some injuries on her ears when her ear­rings were pulled yet she was not sent for any medical examination and there is nothing to substantiate the above.

(63) Applying the above settled principles of law to the facts of present case. It is evident that in so far as the screwdriver which is Ex.P1 is concerned, no evidence has been produced by the prosecution on record to prove that it is a dangerous weapon and hence under the given circumstances, benefit of doubt is liable to be given to the accused Guru Sewak Singh in this regard in so far as the charge under Section 397 IPC is concerned.

Charge against the accused Brij Mohan "Not Established":

(64) In so far as the accused Brij Mohan is concerned, the only evidence against him is the disclosure statement of co­accused Guru Sewak Singh to the extent that he had sold the stolen property to Brij Mohan pursuant to which Guru Sewak pointed out the shop of Brij Mohan to the Police but nothing incriminating was recovered from him. It is argued by the Ld. Defence Counsel that the said disclosure statement of Guru Sewak Singh is not admissible into evidence qua the accused Brij Mohan there being no recovery of stolen articles from the possession of accused Brij Mohan.

State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 45 (65) Further, in so far as the charge under Section 120­B IPC is concerned, it is argued that the prosecution has failed to bring on record any evidence to show any prior meeting of minds between Brij Mohan and Guru Sewak or there being any conspiracy for committing the robbery between both the accused.

(66) I have considered the rival contentions and the evidence on record and I find merits in the arguments of the Ld. Defence Counsel.

The disclosure statement of the accused Brij Mohan does not lead to any discovery of fact which could be held incriminating qua him. The fact that accused Guru Sewak had gone to Brij Mohan and then sold the stolen property is an aspect which has not been proved. No material has been placed before this Court to establish beyond reasonable doubt the aspect and allegations of the purchase of stolen property by Brij Mohan. Further, in so far as the aspect of conspiracy is concerned, except for the disclosure statement of the accused Guru Sewak and Brij Mohan themselves which is inadmissible in evidence, no evidence whatsoever has been brought before the Court to even remotely establish prior meeting of mind between the accused Guru Sewak Singh and Brij Mohan either for committing the robbery or for purchase of stolen property.

(67) This being the background, I hereby hold that benefit of doubt is liable to be given to the accused Brij Mohan for the same. State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 46 FINAL CONCLUSION:

(68) 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 consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

(69) Applying the above settled principles of law to the facts of present case on the basis of the testimonies of the various prosecution witnesses and the other evidence on record, the following facts stand established:

➢ That Smt. Usha Madan a senior citizen aged about 74 years is residing at House No. H­96, Ashok Vihar, Phase­I, Delhi along State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 47 with her husband Baldev Raj Madan aged 85 years and one Umesh Das is working as domestic help at their house. ➢ That on 28.10.2012 at about 6.45 PM Smt. Usha Madan was sitting in the outer room of her house on the Sofa when the accused Guru Sewak Singh entered her house and asked her about their servant on which she informed him that her servant was not there.

➢ That the accused Guru Sewak Singh was holding a screw driver in his hand and had threatened Smt. Usha Madan that he would stab her with the screw driver in her stomach. ➢ That in the meanwhile Baldev Raj Madan also came there and on hearing their voices their servant Umesh Das also came there.

➢ That the accused Baldev Raj snatched the gold chain from the neck of Smt. Usha Madan and also snatched her gold ear ring from her right ear.

➢ That the larger portion of the chain fell down in the room but the accused tried to ran away with the remaining small part of the gold chain and one gold ear ring.

➢ That the servant of the victims namely Umesh Das came out of the bathroom and saw the accused holding a screwdriver in his hand.

➢ That Umesh Das caught the accused Guru Sewak near the gate State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 48 but since the accused threatened him with the screwdriver which initially fell down near the gate from his hand he (Umesh) got scared and left his wrist.

➢ That some neighbour made a call at 100 number and police of PCR and the local police also reached at the house of the victims and recorded her statement on the basis of which the present FIR was registered.

➢ That on 30.10.2012 at about 9:00­9:15 PM pursuant to the secret information the accused Guru Sewak Singh was arrested from a park near Prerna Chowk Keshav Puram who disclosed his involvement in the present case.

➢ That pursuant to the disclosure and pointing out of accused Gurusewak Singh the accused Brij Mohan was apprehended from his Shop No. 1638 B Dariban Kalan, Chandni Chowk, Phatak Wala Mor.

➢ That on 2.11.2012 during Test Identification Parade proceedings the accused Guru Sewak refused for TIP proceedings. ➢ That on 6.11.2012 when the accused Guru Sewak was produced in the Rohini Court Complex, Umesh Das identified him as the assailant.

(70) The victim / complainant Smt. Usha Madan and her servant Umesh Das have duly identified the accused Guru Sewak Singh in the Court as the assailant and committed robbery upon Smt. Usha Madan. State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 49 (71) However, the prosecution has not been able to establish that pursuant to his arrest the accused Guru Sewak Singh got recovered a screwdriver nor any evidence has been produced by the prosecution to prove that the screwdriver Ex.P­1 so identified in the Court by the witnesses Usha Madan and Umesh Das was a dangerous weapon. Further, the conspiracy and prior meeting of minds of the accused Guru Sewak Singh and Brij Mohan to commit the offence of robbery has also not been proved beyond reasonable doubt.

(72) There are two stages in criminal prosecution. The first obviously is commission of the crime and the second is 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. (73) The prosecution has proved the identity of the accused, the manner in which the offence of robbery 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. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 50 any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witness of the prosecution have been able to built up a continuous link in so far as the offence of robbery is concerned.

(74) This being the background, the accused Guru Sewak Singh @ Happy, he is hereby held guilty of the offence under Section 392 Indian Penal Code and accordingly convicted. He is, however, acquitted of the charges under Section 120­B, 397 and 201 r/w 120­B Indian Penal Code.

(75) Further, in so far as the accused Brij Mohan is concerned, he was apprehended pursuant to the disclosure statement of accused Guru Sewak Singh and nothing incriminating material i.e. stolen articles could be recovered from his possession. No material has been placed before this Court to establish beyond reasonable doubt the aspect and allegations of the purchase of stolen property by Brij Mohan.

(76) Therefore, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 51 the guilt of the accused Brij Mohan. The material brought on record by the prosecution is insufficient so as to hold that the accused Brij Mohan was guilty beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused Brij Mohan. Crucially, the material and evidence on the record do not bridge the gap between "may be true" and must be true" so essential for a court to record a finding of guilt of an accused, particularly in cases based on circumstantial evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Brij Mohan, beyond reasonable doubt and hence, benefit of doubt is being given to him who is acquitted of the charges under Section 120­B, 392 r/w 120­B and 201 r/w 120­B Indian Penal Code.

(77) Be listed for arguments on sentence qua the convict Guru Sewak Singh @ Happy on 30.09.2013.

Announced in the open Court                                  (Dr. KAMINI LAU)
Dated: 25.09.2013                                          ASJ (NW)­II: ROHINI




State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar              Page 52
    IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
    JUDGE­II (NORTH­WEST) : ROHINI COURTS: DELHI


Sessions Case No. 18/2013
Unique Case ID: 02404R036692012


State                   Vs.     1.      Guru Sewak Singh @ Happy
                                        S/o Gurmukh Singh
                                        R/o B­4/287­C, Lawrance Road,
                                        Keshav Puram, Delhi. 
                                        (Convicted)

                                2.      Birj Mohan
                                        S/o Balram
                                        R/o G & JU­40 D, 
                                        Pitam Pura, Delhi. 
                                        (Acquitted)

FIR No.                 :               271/2012
Police Station          :               Ashok Vihar 
Under Section           :               392/397/201 Indian Penal Code.

Date of conviction:                     25.09.2013

Arguments concluded on:                 5.10.2013

Date of Sentence:                       5.10.2013


APPEARANCE:

Present: Sh. Shiv Kumar, Ld. Addl. PP for the State.

Convict Guru Sewak Singh in JC with Sh. Azad Singh Advocate.

State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 53 ORDER ON SENTENCE:

As per the allegations, on 28.10.2012 the accused Guru Sewak Singh @ Happy and Brij Mohan hatched a criminal conspiracy pursuant to which at about 6:45 PM at H. No. H­96, Ashok Vihar, Phase­I, the accused Guru Sewak Singh @ Happy committed robbery of a gold chain and gold ear rings from the possession of complainant Usha Madan on the point of screw driver. It is further alleged that thereafter on 29.10.2012 at Shop No. 1638­B, Mor Wala Phatak, Dariba Kalan, Chandni Chowk, the accused Brij Mohan converted the robbed articles i.e. gold chain and gold ear rings into another jewelry items after melting the same.

However, on the basis of the testimonies of the various prosecution witnesses particularly Smt. Usha Madan, Baldev Raj Madan and Umesh Dass and also on the basis of the other circumstantial evidence on record, this Court has vide a detail judgment dated 25.9.2013 held the accused Gurusewak Singh guilty of the offence under Section 392 Indian Penal Code but acquitted of the charges under Section 120­B IPC, 201 r/w 120­B IPC and Section 397 IPC. Further, the accused Brij Mohan has been acquitted of the charges under Section 120­B IPC and 201 r/w 120­B IPC.

Vide the above judgment this Court has observed that the prosecution has been able to establish that Smt. Usha Madan a senior citizen aged about 74 years is residing at House No. H­96, State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 54 Ashok Vihar, Phase­I, Delhi along with her husband Baldev Raj Madan aged 85 years and one Umesh Das was working as domestic help at their house; that on 28.10.2012 at about 6.45 PM Smt. Usha Madan was sitting in the outer room of her house on the Sofa when the accused Guru Sewak Singh entered her house and asked her about their servant on which she informed him that her servant was not there; that the accused Guru Sewak Singh was holding a screw driver in his hand and had threatened Smt. Usha Madan that he would stab her with the screw driver in her stomach; that in the meanwhile Baldev Raj Madan also came there and on hearing their voices their servant Umesh Das also came there; that the accused Baldev Raj snatched the gold chain from the neck of Smt. Usha Madan and also snatched her gold ear ring from her right ear; that the larger portion of the chain fell down in the room but the accused tried to ran away with the remaining small part of the gold chain and one gold ear ring; that the servant of the victims namely Umesh Das came out of the bathroom and saw the accused holding a screwdriver in his hand; that Umesh Das caught the accused Guru Sewak near the gate but since the accused threatened him with the screwdriver which initially fell down near the gate from his hand he (Umesh) got scared and left his wrist; that some neighbour made a call at 100 number and police of PCR and the local police also reached at the house of the victims and recorded her statement on the basis of which the present FIR was State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 55 registered.

It has also been established that on 30.10.2012 at about 9:00­9:15 PM pursuant to the secret information the accused Guru Sewak Singh was arrested from a park near Prerna Chowk Keshav Puram who disclosed his involvement in the present case; that pursuant to the disclosure and pointing out of accused Gurusewak Singh the accused Brij Mohan was apprehended from his Shop No. 1638 B Dariban Kalan, Chandni Chowk, Phatak Wala Mor; that on 2.11.2012 during Test Identification Parade proceedings the accused Guru Sewak refused for TIP proceedings and that on 6.11.2012 when the accused Guru Sewak was produced in the Rohini Court Complex, Umesh Das identified him as the assailant.

This Court has also observed that the victim / complainant Smt. Usha Madan and her servant Umesh Das have duly identified the accused Guru Sewak Singh in the Court as the assailant and committed robbery upon Smt. Usha Madan.

However, the prosecution has not been able to establish that pursuant to his arrest the accused Guru Sewak Singh got recovered a screwdriver nor any evidence has been produced by the prosecution to prove that the screwdriver so identified in the Court by the witnesses Usha Madan and Umesh Das was a dangerous weapon. Further, the conspiracy and prior meeting of minds of the accused Guru Sewak Singh and Brij Mohan to commit the offence of robbery State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 56 has also not been proved beyond reasonable doubt.

This being the background, the accused Guru Sewak Singh has been held guilty of the offence under Section 392 Indian Penal Code only. However, he has been acquitted of the charges under Section 120­B, 397 and 201 r/w 120­B Indian Penal Code.

Further, in so far as the accused Brij Mohan is concerned, it has been observed by this Court that he was apprehended pursuant to the disclosure statement of accused Guru Sewak Singh and nothing incriminating material i.e. stolen articles could be recovered from his possession. No material has been placed before this Court to establish beyond reasonable doubt the aspect and allegations of the purchase of stolen property by Brij Mohan. Therefore, the accused Brij Mohan has been acquitted of the charges under Sections 120­B, 392 r/w 120­B and 201 r/w 120­B Indian Penal Code.

Heard arguments on the point of sentence in respect of the convict Guru Sevak Singh @ Happy who is stated to be a young boy of 25 years having a family comprising of aged parents, one younger brother, wife and a school going son who is studying in 5th class. Ld. Counsel for the convict submits that the convict is a first time offender and is not involved in any other case. He prays for a lenient view against the convict. On the other hand the Ld. Addl. PP State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 57 for the State prays for a stern view against the convict keeping in view the fact that the victims are senior citizens.

I have considered the rival contentions. I may observe that the maximum punishment prescribed for the offence under Section 392 Indian Penal Code is imprisonment for a term which may extend to ten years and fine. In the present case the victims Smt. Usha Madan and Baldev Raj Madan are senior citizens and while they were alone at home the convict taking advantage of the vulnerable position of these senior citizens entered their house and robbed Smt. Usha Madan of her gold chain and ear rings which she was wearing at the time. This court cannot overlook the fact that crime against senior citizens is at rise on account of their vulnerable position i.e. weak physical disposition and none to care for them. Persons with criminal dispositions who become aware of senior citizens residing alone at a particular place are the one's who exploit this situation and hence no mercy can be shown to such offenders. In this background, I hold that the convict Guru Sewak Singh @ Happy is not entitled to any leniency and is hereby sentenced to Rigorous Imprisonment for a period of Four (4) years and fine for a sum of Rs.5,000/­ for the offence under Section 392 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 15 days.

State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar Page 58 Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him, as per rules.

The convict has been informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he 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 convict free of costs and one copy of order on sentence be attached with his jail warrants.

File be consigned to Record Room.

Announced in the open Court                                   (Dr. KAMINI LAU)
Dated: 5.10.2013                                            ASJ (NW)­II: ROHINI




State Vs. Guru Sewak Singh & Anr., FIR 271/12, PS Ashok Vihar                   Page 59