Delhi District Court
State vs . 1) Devraj Singh Yadav on 28 July, 2016
IN THE COURT OF SH. REETESH SINGH, ASJ-02/FTC
NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
Case ID No. 02403R0103482012
Sessions Case No. 63 of 2013
State vs. 1) Devraj Singh Yadav
Son of Sh. Jaipal SIngh
Resident of B-48, Gali No.8,
Shalimar Gaon, Shalimar Bagh,
Delhi.
(Presently in Judicial Custody)
2) Deepak Kumar @ Panditji
Son of Sh. Narender Dev
Resident of H.No. Z-18, Sahipur
Village, Shalimar Bagh, Delhi.
(Presently in Judicial Custody)
3) Nirbhay Thakur @ Bobby
Son of Sh. Bhubneshwar Rai
Resident of H.No. SD-464,
Pitampura, New Delhi.
(Presently in Judicial Custody)
4) Shekhar Chaudhary
Son of Sh. Baldev Raj
Resident of H. No. 115D, PD-Block,
Pitampura, New Delhi.
(Presently in Judicial Custody)
5) Narender @ Chotu
Son of Om Parkash
Resident of Village Gangana
PS Gohana, District Sonepat
Haryana.
(Presently in Judicial Custody)
6) Vijay Kumar Yadav @ Babu
Son of Sh. Ajit Singh
Resident of H.No. 47,
Mohalla Pipalwala,
Village Badli, New Delhi-42.
(Presently in Judicial Custody)
State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 1/55
FIR No. 127 of 2012
PS: Special Cell (Hauz Khas)
U/s: 392/365/395/397/34 IPC
Date of institution of the case : 15.09.2012
Date when the case reserved for judgment : 13.07.2016
Date of announcement of judgment : 28.07.2016
JUDGMENT
1. Devraj Singh Yadav, Deepak Kumar @ Panditji, Nirbhay Thakur @ Bobby, Shekhar Chaudhary, Narender @ Chotu and Vijay Kumar Yadav @ Babu are facing trial in this Court for several offences as follows:-
(a) All the six accused i.e. Devraj Singh Yadav, Deepak Kumar @ Panditji, Nirbhay Thakur @ Bobby, Shekhar Chaudhary, Narender @ Chotu and Vijay Kumar Yadav @ Babu are jointly charged for the offences punishable under Sections 365, 395 and 34 of the Indian Penal Code (IPC);
(b) Narender @ Chotu and Vijay Kumar Yadav @ Babu are separately charged for the offence punishable under Section 397 of the IPC;
(c) Nirbhay Thakur @ Bobby, Devraj Singh Yadav, Deepak Kumar @ Panditji Shekhar Chaudhary, Narender @ Chotu and Vijay Kumar Yadav @ Babu are individually charged for the offence punishable under Section 412 of the IPC.
2. The case set up by the prosecution as explained in the Police Report under Section 173 (2) of the Code of Criminal Procedure (Cr.P.C.) is Sukanto Ray and Sanjay Mishra were working as employees of Ashish Begwani. Ashish Begwani had instructed them to collect a carton and a bag containing cash of Rs.1,60,00,000/- (Rs. One crore and six lacs only) from the house of one Mr. Malu from E-48, Lajpat Nagar, Part - III and to come Vasant Vihar. Sanjay Mishra, driver of State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 2/55 Ashish Begwani left along with Sukanto Ray from the house of Ashish Begwani at Jain Colony Rana Pratap Bagh Delhi in a Chevrolet Beat car bearing registration number DL-4CAN-8535 and reached the house of Mr. Malu at Lajpat Nagar. Sukanto Ray went inside the house of Mr. Malu and collected a carton and a rice gunny bag and he along with Sanjay Mishra then left for Vasant Vihar. The cash bundle notes were in the denomination of Rs.500/- with each bundle having the stamp of AXIS Bank and of SEBI registration number INF 231241838 affixed on both sides of the slip of each bundle. Just when their car reached Panchsheel Flyover, their car was hit by a Toyota Corolla vehicle bearing registration no. DL-4CR-2033. The said Toyota Corolla vehicle then stopped in front of the Chevrolet vehicle and blocked its path. Three person came out of that Toyota Corolla vehicle. One person entered the Chevrolet Beat vehicle from the side of Sanjay Mishra and one person entered their car from the side Sukanto Ray was sitting and the third person sat in the car on the rear seat. The fourth person remained inside the Toyota Corolla vehicle. The person who sat on the rear seat pulled Sanjay Mishra to the rear seat and put a pistol on him. The person who sat from the side of Sukanto Ray also pointed a pistol to Sukanto Ray. In the meanwhile, one TATA Indigo vehicle had stopped at the place. Thereafter, Sanjay Mishra and Sukanto Ray along with the Beat car were driven ahead and when they reached the Munirka Flyover, Sanjay Mishra and Sukanto Ray were pushed out of the Chevrolet Beat vehicle and those persons fled with the said vehicle and the cash in it.
3. Sukanto Ray made a call to Ashish Begwani informing him about the incident. Ashish Begwani then reached and met Sukanto Ray and Sanjay Mishra and called the police. DD No. 30A was recorded in State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 3/55 PS Vasant Vihar which was assigned to SI Gopi Ram who reached and met Sukanto Ray and Sanjay Mishra. SI Gopi Ram found that the incident had taken place on Panchsheel Park Flyover which fell in the jurisdiction of PS Hauz Khas and accordingly informed the said police station. DD no.38A was recorded at PS Hauz Khas which was assigned to SI Saroj Tiwari who along with Ct Sandeep reached the place. He recorded the statement of Sukanto Ray and sent the rukka to the police station through Ct Sandeep for registration of the FIR. SI Saroj Tiwari prepared the site plan, went to Munirka Flyover with the complainant and returned to the police station. Sukanto Ray and Sanjay Mishra were shown photographs of history sheeters but they were not able to recognize any of those photographs. In the meanwhile, investigation of the case was transferred to the Special Cell of Delhi Police and assigned to Insp. Rajendra Singh for investigation.
4. Insp. Rajendra Singh recorded the statement of Ashish Begwani on 11.05.2012. That day, an informer met Ct Ankit Deshwal in the office of the Special Cell and gave information regarding the said robbery. The information was shared with Insp. Rajendra Singh. On the instructions of senior police officers, a police team comprising of Insp. Rajendra Singh, SI Ravinder Tyagi, SI Yudhvir Singh, HC Gurmeet, HC Hansraj, HC Arvind, HC Parvesh, Ct Ankit Deshwal and other officials was formed. On 12.05.2012 at about 4pm, accused Devraj Singh was apprehended at Shalimar Village at the instance of the secret informer. He admitted his involvement in the incident and was arrested. His disclosure statement was recorded. In pursuance of his disclosure statement, the vehicle Mahindra Scorpio DL-2CFY-0076 stated to be purchased from the looted amount, was recovered and seized. On the pointing out of Devraj Singh, accused Deepak Kumar was apprehended State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 4/55 at Shalimar Bagh. He admitted his involvement in the incident and was arrested. His disclosure statement was recorded and at his instance, TATA Indigo vehicle bearing registration no.DL-8CM-1567 used in the incident was recovered and seized.
5. As per the disclosure statement of Deepak Kumar, the police team then went to Pitampura SD Block from where Nirbhay Thakur was apprehended. He admitted his involvement in the case and was arrested. His disclosure statement was recorded. In pursuance of the disclosure statement of Nirbhay Thakur, Shekhar Chaudhary was apprehended from PD Block Pitampura who also confessed to his involvement. Shekhar Chaudhary was arrested and at his instance, Toyota Corolla vehicle bearing registration number DL-4CR-2033 used in the incident was recovered and seized. All the accused were brought to the office of Special Cell.
6. Upon further interrogation, supplementary disclosure statements of Devraj Singh, Deepak Kumar and Shekhar Chaudhary were recorded. In pursuance of the supplementary disclosure statement of Devraj Singh, Rs.5,00,000/- were recovered on 14.05.2012 from his house at B-48, Shalimar Village which were found to be having the slip of AXIS Bank and stamp of SEBI. The same was seized.
7. In pursuance of the supplementary disclosure statement of Deepak Kumar, Rs.8,50,000/- were recovered on 14.05.2012 from his house at A-18, Shahipur Village. The bundles of currency notes were found to be having the slip of AXIS Bank and stamp of SEBI. The same were seized.
State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 5/55
8. In pursuance of the supplementary disclosure statement of Shekhar Chaudhary, Rs.3,50,000/- were recovered on 14.05.2012 from his house at 115D, PD block, Pitampura which were found to be having the slip of AXIS Bank and stamp of SEBI. The same was seized.
9. On 15.05.2012, Nirbhay Thakur was put under further interrogation and he gave another disclosure statement which was recorded. In pursuance thereof, Nirbhay Thakur on 15.05.2012 led the police team to 3/17, Rana Pratap Bagh which was the rented accommodation of Chander Prakash. On the asking of Nirbhay Thakur, Chander Prakash took out a polythene bag which was found to be containing Rs.48,00,000/- in cash. All the bundles had the slip of AXIS Bank and stamp of SEBI. The same were seized.
10. On 20.05.2012, secret information was received about Narender @ Chotu. A trap was laid and he was apprehended at Bakoli Modh NH-1, Delhi and he also accepted his involvement in the incident. He gave a disclosure statement on 20.05.2012 and led the police team on the same day to the house of one Titu at Hamid Pur Village from where the accused took out a bag which was found to be containing Rs.25,00,000/-. All the bundles had the slip of AXIS Bank and stamp of SEBI. The same were seized.
11. On 08.06.2012, secret information was received about Vijay Kumar Yadav that he would be coming to Sector-9 Rohini, Delhi. A police team comprising Insp. Rajendra Singh, HC Gurmeet, HC Parvesh, Ct Ankit Deshwal and others reached Japani Park. The accused Vijay Kumar Yadav was pointed out by the informer and apprehended. He admitted his involvement in the case. He was State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 6/55 arrested. His disclosure statement was recorded. In pursuance to the same, the Chevrolet Beat car DL-4CAN-8535 was recovered and seized. On 14.06.2012 upon interrogation, Vijay Kumar Yadav gave another disclosure statement and led the police team on the same day to village Badali Peeplewala Mohalla, Delhi and got a bag recovered from a vacant plot in which Rs.38,00,000/- were found. All the bundles had the slip of AXIS Bank and stamp of SEBI. The same were seized.
12. On 16.06.2012, Narender @ Chotu and Vijay Kumar Yadav were interrogated again in Tihar Jail where they gave further disclosure statements. Police custody remand of Vijay Kumar Yadav was granted on 17.06.2012 and he led the police team to House No.635, Udyan Panna Bagari Mohalla, Narela. One Amit Kumar came out on being called by Vijay Kumar Yadav and brought a locked laptop type bag. From the said bag, Rs.17,00,000/- were recovered. All the bundles had the slip of AXIS Bank and stamp of SEBI. The same were seized.
13. During the course of investigation, all the accused persons refused to participate in Test Identification Parade (TIP) as and when they were arrested. On 05.07.2012, Sukanto Ray and Sanjay Mishra identified all the accused persons when they were being produced during extension of judicial custody and they specified the role of each of the accused. After completion of investigation, the charge-sheet was filed in the Court.
14. It may be noted that out of the looted amount, Rs.1,45,00,000/- (Rs. One crore and forty five lacs only) were recovered. An application had been filed by Sukanto Ray for release of State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 7/55 the cash amounts so recovered. The said application was considered on 05.06.2012 by the court of Ld. CMM, New Delhi. Accused persons were put to notice and heard. None of the accused made any claim to the recovered amounts. On the other hand, they claimed that the recoveries had been planted upon them. By order dated 05.06.2012, it was directed that the recovered cash of Rs.90,00,000/- be released to the applicant subject to the conditions that the IO should get the currency notes photocopied, retain the slips of AXIS Bank and execution of an indemnity bond by the applicant / claimant. In accordance to the directions issued, the currency notes were photocopied and the original recovered currency notes were released to the applicant. Subsequently anther application was moved for release of further recovered cash of Rs.55,00,000/- which was allowed by the Court of Ld. CMM, New Delhi by order dated 02.07.2012 on the same terms and conditions as contained in the order dated 05.06.2012. This amount of Rs.55,00,000/- was also released to the applicant.
15. By order dated 04.12.2012, charges as above were framed against the accused persons to which they pleaded not guilty and claimed trial. During the pendency of the trial Nirbhay Thakur was granted interim bail on 20.10.2014 with effect from 23.10.2014 to 29.10.2014. Upon being released on interim bail, the accused did not surrender within time and declared a proclaimed offender on 05.01.2015. He was apprehended and produced vide Kalandra under Section 41.1 Cr.P.C. before the Court on 22.01.2015. Additional charge for the offence under Section 174A of the IPC was framed against him on 13.02.2015 to which he pleaded not guilty and claimed trial. In all the prosecution has examined 17 witnesses to bring home its charges against the accused persons. The brief description of witnesses State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 8/55 examined in the course of the trial are tabulated as under:-
SRL. NO. NAME RELEVANCE
PW1 HC Ghanshyam He is the Duty Officer of PS Hauz Khas
who registered the FIR Ex.PW1/A on the
basis of the rukka sent by SI Saroj Tiwari
and made his endorsement on the rukka
Ex.PW1/B.
PW2 Sukanto Ray He is an eye-witness to the incident dated
10.05.2012 and is the complainant on
whose statement the FIR was registered.
PW3 Sh. Aashu He conducted the TIP of Nirbhay Thakur
Garg, Ex.PW3/B on 26.05.2012 and TIP of
the then Ld. Shekhar Chaudhary @ Shekhar
MM, Tis Hazari Ex.PW3/G and Dev Raj and Deepak vide
Courts, Delhi. Ex. PW3/F on 28.05.2015.
PW4 Sh. Munish He conducted the TIP of Narender @
Markan, the Chotu vide Ex.PW4/B on 05.06.2012 and
then Ld. MM, TIP of Vijay Kumar Yadav vide Ex.PW4/F
Tis Hazari on 26.06.2012.
Courts, Delhi.
PW5 Pawan Kumar He is the owner of Toyota Corolla vehicle
bearing registration no. DL-4CR-2033.
PW6 Sanjay Mishra He is an eye-witness to the incident dated
10.05.2012.
PW7 SI Gopi Ram DD No.30A PS Vasant Vihar dated
10.05.2012 was assigned to him for
inquiry.
PW8 Chander Rs.48,00,000/- of the looted amount was
Prakash recovered from his house.
PW9 Ashish Begwani He is the employer of PW1 Sukanto Ray
and PW6 Sanjay Mishra.
PW10 Ct Sandeep He had accompanied SI Saroj Tiwari to
whom DD no.38A PS Hauz Khas was
marked for inquiry.
PW11 Kamal Kumar He is the owner of Mahindra Scorpio
vehicle bearing registration number DL-
2CFY-0076 which he had given to accused
State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 9/55
Devraj.
PW12 HC Pravesh He was part of the investigation on
Kumar 11.05.2012, 12.05.2012, 14.05.2012,
15.05.2012, 20.05.2012, 26.05.2012,
08.06.2012, 09.06.2012, 14.06.2012,
16.06.2012 and 17.06.2012.
PW13 Ct Ankit He was part of the investigation on
Deshwal 11.05.2012, 12.05.2012, 14.05.2012,
15.05.2012, 20.05.2012, 26.05.2012,
08.06.2012, 09.06.2012, 14.06.2012,
15.06.2016 and 16.06.2012.
PW14 Insp. Rajendra He is the IO of this case w.e.f. 11.05.2012
Singh Sehrawat till filing of the charge-sheet. PW15 HC Sanjeev He is the MHCM of PS Special Cell who produced registers 19 and 21.
PW16 SI Saroj Tiwari DD no.38A PS Hauz Khas was marked for inquiry to him and he had prepared the rukka on the basis of which the FIR was registered.
PW17 ASI Om He had executed the process under
Prakash Sections 82 and 83 of the Cr.P.C. qua
accused Nirbhay Thakur @ Bobby when
he had absconded.
16. Statements of the accused persons under Section 313 of the Cr.P.C. were recorded. The accused denied the incriminating evidence put to them. Devraj Yadav claimed that the money recovered from him had been given to him by his brother. Three of the accused namely Devraj Singh, Vijay Kumar Yadav and Shekhar Chaudhary desired to lead evidence in defence. ASI Om Parkash, RTI Cell, PCR, Naveen Kataria, PIO, Superintendent, Central Jail No.1, Tihar, Delhi were examined as DW1 and DW2 respectively on behalf of the accused Vijay Kumar Yadav. DW3 A.K. Sharma, Deputy Manager, SBI Bank Jammu Cantonment, Jammu and DW4 Dalbir Singh and DW5 Neelam Yadav were examined on behalf of the accused Devraj Singh. Accused State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 10/55 Shekhar Chaudhary did not examine any witness in defence.
17. On behalf of accused Narender @ Chotu, Vijay Kumar Yadav and Nirbhay Thakur, Sh. R. P. Tyagi made submissions. He argued that DD no. 30 dated 10.05.2012 was recorded on a PCR call made from the mobile phone of Ashish Begwani, which was for a complaint of theft of a car. This call has been made by Ashish Begwani after speaking to PW2 and PW6. PW16 SI Saroj Tiwari had stated that he did not find Ashish Begwani present. He further submitted that on 11.05.2012 investigation of this FIR was transferred from PS Hauz Khas to Special Cell, Delhi Police on oral order. PW8 had stated that the recovery of the money was made on the next day i.e. 12.05.2012, while as per the recovery memo it was done on 15.05.2012. He further submitted that in cross-examination PW8 has stated that Nirbhay Thakur had not delivered the money at his house. Sh. Tyagi submitted that the accused persons were shown to PW2 and PW6 in the police station itself on 11.05.2012 itself and they were therefore fully justified in refusing to participate in the TIP proceedings. He submitted that the recoveries made from the accused persons were planted. The identification of the accused persons in the Court has no value since the accused persons were exposed to the witnesses prior to the TIP proceedings.
18. On behalf of Dev Raj and Deepak Kumar, Sh. Siddharth Yadav, Advocate made submissions. He submitted that the case of the prosecution was that these two accused persons were simply sitting in the TATA Indigo vehicle. No overt act has been attributed to them. He submitted that PW2 has not mentioned anything about the presence and use of the TATA Indigo vehicle in the offence. PW 2 had stated so State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 11/55 only when he was cross examined by the Ld. Addl. PP for the State. He submitted that PW2 has stated that he identified one person in the TATA Indigo car after seeing of the CCTV footage of the BRT. He further submitted that PW2 had stated that cartons were sealed and therefore they could not see what was inside the carton. PW 2 has not even stated the cash amount. He submitted that PW6 Sanjay Mishra has deposed that he had not seen any person putting cash in the carton and that PW2 had come with the carton and sat in the car. PW6 has stated that he had seen TATA Indigo vehicle outside the house of Mallu, but this part of his statement is not found recorded in his statement under section 161 of the Cr. P.C. He further submitted that no public witnesses were associated with the recovery of cash from both these accused persons. He had submitted that the presence of the TATA Indigo vehicle and two other persons is not mentioned in the FIR. The presence of the TATA Indigo vehicle is mentioned for the first time in supplementary statements dated 05.07.2012 of PW2 and PW6. Sh. Siddharth Yadav further submitted that Dev Raj Singh was claimed to have been apprehended from outside his house on 12.05.2012 at 4 pm. No public witness is associated with the same. No recovery was made from the home of Dev Raj on 12.05.2012. The recovery is claimed to have been made only on 14.05.2012, even though the disclosure statement of the accused is stated to have been recorded on 12.05.2012. He further submitted that the Mahindra Scorpio vehicle is claimed to have been recovered on 12.05.2012 and purchased from looted money but PW11 stated that he had given it only for a test drive. In addition to oral submissions written arguments have filed on behalf of Dev Raj Singh and Deepak Kumar.
19. Sh. K. K. Manan, Ld. Senior Advocate made submissions State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 12/55 on behalf of Shekhar Chaudhary. He argued that the case of the prosecution was that Shekhar Chaudhary was driving the Toyota Corolla vehicle which had over taken that Chevrolet Beat vehicle of the victim. He submitted that PW 2 and PW 6 were not joined in the arrest and recovery made from Shekhar Chaudhary. As per these two witnesses Shekhar Chaudhary did not get down from the vehicle, but had over taken the vehicle of PW 2 and PW 6 and therefore there could not be any occasion for them to have seen his face. He submitted that the registration number of the Toyota Corolla vehicle was not given to the police. No mechanical inspection of the vehicle had been conducted, even though there was allegation that the vehicle was collided. No chance prints were admitted to be lifted. He further submitted that the disclosure statement Ex.PW12/L-3 mentions two witnesses but their signatures are not there whereas Ex.PW12/M-4 mentions names of witnesses with their signatures. There were cuttings and interpolation on both the disclosure statements of Shekhar Chaudhary. He further submitted that no public witness or local police were associated in the recoveries made from the accused. Chance prints from the currency notes and bag had not been lifted. The Toyota Corolla vehicle is claimed to have been recovered on 12.05.2012 from the house of Shekhar Chaudhary. He further submitted that PW9 in cross-examination had not disclosed the source of looted cash. It was not withdrawn from any bank. The recovery of such a huge amount after two days is improbable. As per the disclosure statement part of the money was in Punjab but no investigation was made in Punjab to establish that the disclosure statement was false. He submitted that Ct. Ankit Deswal PW13 has not talked anything about any recovery on 12.05.2014. There is no explanation as to from where the key of Toyota Corolla vehicle was found.
State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 13/55
20. I have heard Ld. Counsels for the parties and have perused the record of this Case. My findings are as under:-
INCIDENT OF ROBBERY DATED 10.05.2012
21. The witnesses pertaining to the incident of robbery are Sukanto Ray PW2 and Sanjay Mishra PW6.
22. PW2 in his examination in chief has deposed that he looks after the bank dealing and cash transactions of Ashish Begwani. He stated that on 10.05.2012 at about 2:15pm, he had left from Lajpat Nagar with cash in a Chevrolet Beat vehicle and when he reached Panchseel Club his car was hight with a Toyota Corolla vehicle from which three persons came out of which two were carrying pistols in their hands while third person did not have anything in his hands. He stated that one person armed with a pistol came towards his side whereas other two went towards the side of the driver. They opened the gate of their Chevrolet Beat vehicle. He stated that his driver Sanjay Mishra thought that these persons had come to confront them because of the accident. He stated that person who came towards his side, poked a pistol in his ribs and driver Sanjay Mishra was sent on the rear seat. One of the assailants sat on the driver seat and another person came inside the car sat with PW2 on the front passenger seat. The third person sat on the rear seat with the driver pointing with a gun. He stated that the person sitting with him claimed himself to be an income tax officer who had been following them for several days and stated that they will take him i.e. PW2 to their office to inquire from them about the source of their money. They then proceeded from the spot in their car and these persons kept abusing PW2 and his driver Sanjay Mishra.
State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 14/55 When they reached Vasant Vihar Flyover, PW2 and his driver pushed out of their vehicle. By then these persons had taken out the SIM cards of the mobile phones of PW2 and driver Sanjay Mishra.
23. PW2 further deposed that they came back running and he made a call to his employer Ashish Begwani from a mobile phone which he borrowed from a passerby and informed him about the incident. Ashish Begwani asked him to wait at the spot and saying that he would reached there. After 15-20 minutes, Ashish Begwani reached and informed police and PCR van also came to the spot. He deposed that police from PS Hauz Khas and Vasant Vihar reached there and they then asked PW2 to point out the place where the incident had taken place. PW2 took them to the place of he incident and from there they were taken to PS Hauz Khas. He deposed that the officials of PS Hauz Khas made inquiries from them and they were kept in the police station for the entire night. They were asked about the registration number of the Toyota Corolla vehicle but they could not remember it. They were asked about the appearance of the persons involved and they gave it to the police. They were allowed to leave in the morning with the instructions to come back. He deposed that thereafter he along with driver Sanjay Mishra reached the PS where they were shown several photographs till night but they could not identify any person. They were relieved at about 10pm and then asked to come PS Kamla Market at 11am on next day.
24. PW2 further stated that on next day, they went PS Kamla Market where they were shown some photographs entire day till 6pm but they could not identify any person from those photographs. He stated that on the instruction of the police, they then went to the office of State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 15/55 Special Cell at Lodhi Road at 6:30pm and they were shown some persons who had been apprehended. PW2 stated that he identified four persons, two of whom were in his car and other two persons who were in a separate car which was following them.
25. PW2 further deposed that after 15-20 days, one more person who had been apprehended was shown to him and he identified him. He deposed that after 20-30 days, one more person was apprehended and shown to him to whom he also identified. He deposed that on 10.07.2012, he went to Tis Hazari Courts and identified all six accused persons in the compound of Tis Hazari Courts. He then identified all the six accused persons present in the Court that day i.e. on the date of recording of his examination in chief i.e. 19.01.2013. It is recorded in the evidence sheet that PW2 identified all the accused persons in the Court by pointing out with finger. He identified four persons separately to whom he identified first and then fifth and sixth person. He identified all the accused by name except two accused persons whose names were Vijay and Devraj.
26. Ld. Addl. PP for the State at that stage had sought and was granted to put some leading questions to PW2. In response to the leading questions, PW2 had deposed that he had taken cash from the office of Mallu Sahab and reached Panchsheel Flyover between 2:45pm-2:50pm. There was another TATA Indigo vehicle which was following them which he came to know about seeing the CCTV footage of BRT and identified a person in that car who had earlier been working as a driver with Atul Goel at Ashok Vihar. He did not remember exact date whether he had gone to Tis Hazari on 05.07.2012 or 10.07.2012.
State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 16/55
27. In cross-examination on behalf of the accused Shekhar Chaudhary, PW2 stated that his statement was recorded on three occasions. He had not stated in his statement dated 10.05.2012 that he could identify driver of Toyota Corolla vehicle. He had stated that he had seen the driver of Toyota Corolla vehicle at the spot but when confronted with his statement dated 10.05.2012 Ex.PW2/A it was not found so recorded. He further deposed that he did not state in his statement dated 05.07.2012 that he had seen Shekhar Chaudhary at the spot. He had not identified Shekhar Chaudhary on 10.05.2012 in the PS. He deposed that he was shown Shekhar Chaudhary by the police in the PS on 10.05.2012 and had identified him there.
28. In cross-examination on behalf of the accused Devraj Singh, PW2 deposed that on 12.05.2012, he was shown Nirbhay Thakur, Deepak Paliwal and Devraj in the police station by the police. Devraj was not the person who had come in Toyota Corolla vehicle that day. He deposed that their Chevrolet Beat car had been touched on the left side of the Toyota Corolla vehicle. He had noticed a white coloured Indigo car following them but he could not remember its registration number. He deposed that Chevrolet Beat car was not mechanically inspected. He deposed as correct that the word 'cash' did not mention in his complaint Ex.PW2/A. Voluntarily, he deposed that at that time he did not know that there was cash in the car. His statement was recorded on 11.05.2012. He deposed that he was in PS Hauz Khas from 10am to 10pm on 11.05.2012. He was shown accused persons on 05.07.2012 in Tis Hazari Courts. He deposed that he had seen Devraj in Indigo vehicle on 10.05.2012 which was following them. He was shown CCTV footage of BRT but it was not clear but he could not identify anybody in the said CCTV footage. He could not identify Devraj in the footage. The State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 17/55 said CCT footage was shown to him in PS Hauz Khas in the night of 11.05.2012. He had never seen Devraj before the incident. He came to know about his name after his identification. He did not remember the mobile number of the passerby from whom he made a call. Ashish Begwani had called the PCR by dialling no.100 but he did not know as to how the police reached. The police had come to the spot and prepared some sketch at the spot but he did not sign on the same.
29. In cross-examination on behalf of the accused Narender, Nirbhay Thakur and Vijay Yadav, PW2 deposed that he had told the police in his statement Ex.PW2/A that on 10.05.2012 they had left from Lajpat Nagar with cash and reached near Panchsheel Club when his car hit by Corolla Car; that two persons who alighted from the Corolla vehicle were carrying pistols in their hands; that one person armed with a pistol came to his side; that his driver Sanjay Mishra thought that because of the incident, those persons had come to confront him; that the person who had come to his side put a pistol on his ribs; that one person entered the car and sat with him on that seat; that those persons pushed him and Sanjay and seated him on the back seat of the car; that the third person sat with the driver at the back seat of the car with a gun; that the person who was sitting with him claimed himself to be an Income Tax Officer who was following them for few days; that the said person told him that they will take him to their office and that they started abusing them in the car but these statements were not found to be so recorded when confronted with his statement Ex.PW2/A. He stated that he had not told the police that they had taken out SIM card from their mobile phones. He also stated that he had told the police that he came back running and made a call to Ashish Begwani from a mobile phone taken from a passerby but when confronted with his State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 18/55 statement Ex.PW2/A the same was not found to be so recorded. He further deposed that he reached house of Ashish Begwani at about 11:30/12noon on 10.05.2012. He deposed that there was no bank work of Ashish Begwani after 12 noon on 10.05.2012. He deposed that he left the house of Ashish Begwani between 12:30-12:45pm. They had parked the Chevrolet Beat vehicle outside the house of Mallu and both they went inside the house and took out one carton and a bag and kept them in the Beat vehicle. It was a cardboard carton secured with tapes. The same was lifted by Sanjay Mishra and 'Jagat Basmati Rice' was printed on both the sides of the bag. The incident took place within half an hour of leaving Mallu's house. He admitted as correct that there was no dent in their Beat car. He did not remember the person from whose mobile phone he made a call. Sanjay Mishra with him when he asked for the mobile phone. They remained near Munirka Flyover for about 15 minutes and thereafter they were taken to Panchsheel Flyover from where all three of them were taken to PS Hauz Khas. Sketch of the culprits were prepared by the police at his instance. He remained in the police station till 5am on the next day. He had gone to the office of Special Cell for the first time on 05.07.2012. After being telephonically called by the SHO of PS Special Cell. His statement was recorded on 05.07.2012. His statement was recorded on 05.07.2012. He was not shown any cash or any accused or any other thing that day. He had identified the accused persons on 05.07.2012 and not on 10.07.2012 as stated by him in his examination in chief. Voluntarily, he deposed that he was not very sure about the date. He had not seen the accused persons before the incident. He had not identified any accused from the computer photographs shown to him. He along with Sanjay Mishra were asked for TIP at Tihar Jail where they me Ld. Judge. He stated that the Ld. Judge told him that the accused refused to participate in the TIP State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 19/55 proceedings. He deposed that on 11.05.2012, he had not gone to the Special Cell office to identify or was shown four persons. Voluntarily, he deposed that on 11.05.2012 from PS Kamla Market, he had gone to PS Hauz Khas and not to the office of Special Cell Lodhi Colony.
30. In cross-examination on behalf of the accused Deepak, PW2 deposed that he did not know any businessman by the name of Atul Goel or Nawal Goel. There was no chowkidar at the entrance gate of Malluji's office. No staff was present when he had visited the office of Malluji on 10.05.2012. Malluji told him that a carton and a bag had been taken. Malluji did not say anything else to him. Malluji had come to PS Hauz Khas and was remaining there for about 2-2½ hours. He did not whether his statement was recorded. He had noticed a Indigo vehicle behind them in stationery position when their car was on Panchsheel Flyover. It was of while colour but he could not recollect its registration number. Two persons sitting in the said vehicle but none of them came out.
31. PW6 in his examination in chief stated that he was working as a driver with Ashish Begwani and on 10.05.2012, he reported for duty at 10am at his house. Sukanto Ray another worker with Ashish Begwani came and told him to accompany him to Model Town in a Beat car. On the way to Model Town, Sukanto Ray received a call after which he stated that they would have to go to Lajpat Nagar. They reached Lajpat Nagar to the house of Malluji. Sukanto Ray went inside that house and he i.e. PW6 parked the car near his house. After sometime Sukanto Ray telephoned PW6 asking him to come with the car in front of house of Malluji. Sukhnto Ray had brought a cardboard carton and a rice gunny bag outside the house of Malluji which PW6 State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 20/55 picket up and put them in the boot of the vehicle. Sukanto Ray then asked him to go to Vasant Vihar. Sukanto Ray sat on the backside of the car and ate lunch in the car while he was driving the car. When they reached Mool Chand Flyover, a Toyota Corolla vehicle went past his car with a very narrow gap. They then went BRT corridor and when he was to take right turn to Vasant Kunj, Sukanto Ray finished his lunch and came on the front seat of the vehicle. When they reached Panchsheel Flyover, the said Toyota Corolla vehicle overtook his car and stopped in front of their car. Three persons came out of the said Corolla vehicle, one person entered their car from his side i.e. side of PW6, another entered from the side of Sukanto Ray and third sat on the rear seat and one person remained in the Toyota Corolla vehicle, that person had long hair. The person sitting on the rear seat pulled PW6 from driver seat and poked a revolver in his ribs. The person who sitting with Sukanto Ray also had a revolver. They told them that they were from Income Tax department and they would be taken them to the police station. They then moved towards the direction of Airport. When they reached in the middle Munirka Flyover, Sukanto Ray and he were pushed out of the Beat car. Both of them then ran down towards the beginning of Munirka Flyover. He deposed that the said person had taken away the battery from his mobile phone but had returned the mobile phone instrument to him before pushing him outside the car. Sukanto Ray demanded a mobile phone from a passerby and made a call to Ashish Begwani who reached there. Police also reached and took them to Panchsheel Flyover where their vehicle had been snatched from them. They went to PS Hauz Khas where his statement had been recorded. He and Sukanto Ray were remained in the police station in the night as they were being interrogated. In the morning, he went to the house of Ashish Begwani and after having rest, they again State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 21/55 went to PS Hauz Khas where they were shown some photographs but they could not identify any person. On next day, he and Sukanto Ray were called to visit in the office of police near New Delhi Railway Station where they had seen photographs but they could not identify any person.
32. PW6 in his examination in chief further deposed that on 05.07.2012, he and Sukanto Ray were called in Tis Hazari Courts where he identified all the six accused persons standing outside the Court no. 38. Three of them entered Chevrolet Beat car while the fourth sitting in the Toyota Corolla vehicle who previously had long hair and two persons were in the Indigo vehicle. He had seen these two persons in the Indigo car which had been parked near the house of Malluji on the date of the incident. He had seen that Indigo vehicle at Panchsheel Flyover which had stopped ahead. From Tis Hazari Courts, they were taken to the office of Lodhi Colony of the police where he identified Toyota Corolla vehicle and Indigo vehicle. His statement was recorded to this effect by the police. In the Court PW6 identified Devraj and Deepak stating that they were sitting in the Indigo vehicle, Shekhar Chaudhary was sitting in the Toyota Corolla vehicle and other three persons were also pointed by finger by PW6 as the persons who had entered his Chevrolet Beat vehicle. He identified Toyota Corolla vehicle by its colour which was cream and Indigo vehicle which was white. He had not seen the registration number of the Toyota Corolla vehicle.
33. In cross-examination on behalf of the accused Nirbhay Thakur, Narender @ Chotu and Vijay Kumar, PW6 deposed that he has been working with Ashish Begwani for 1½ years prior to the incident but he had brought any proof of his employment. Police had taken his State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 22/55 mobile phone on 10.05.2012 of which battery had been taken away. The mobile phone of Sukanto Ray had also been taken by the police. He had parked his car on the left side to the house of Malluji at a distance of about 8-10 paces. He could not state whether it was his office or his house. He had not stated to the police that he was asked to bring the car inside the house or that he took the car inside the house; he had stated that Sukanto Ray had told him to go to Vasant Kunj; he had told to the police that when he entered Moolchand Flyover, a Toyota Corolla vehicle had gone past over his car at a narrow distance; he had stated to the police that the person sitting on the back seat, pulled him from driver seat of the car; that a revolver was poked on his left rib and that the person sitting with Sukanto Ray also had a revolver. He was confronted with his statement Ex.PW6/DA where these facts were not found to be so recorded.
34. PW6 in his cross-examination on behalf of the accused Nirbhay Thakur, Narender @ Chotu and Vijay Kumar further deposed that Chevrolet Beat was taken by Corolla vehicle at Panchsheel Flyover at about 3pm. They were pushed out of the Beat vehicle after stopping the car. He could not identity the person whose phone was used by on behalf of the accused Nirbhay Thakur, Narender @ Chotu and Vijay Kumar to call Ashish Begwani. First police reached the spot and then Ashish Begwani reached. They had been taken to PS Hauz Khas on a motorcycle of the police person. He did not know how Sukanto Ray reached PS Hauz Khas. Ashish Begwani also reached PS Hauz Khas. He had never seen Malluji. His statement was recorded by SI Saroj Tiwari. Immediately after he identified the accused persons outside Court No.38 Tis Hazari Courts, they went to the office of police at Lodhi Colony. Only two vehicles were parked in the office of police at Lodhi State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 23/55 Colony i.e. Toyota Corolla and TATA Indigo which he identified by seeing their colours. His statement was not recorded in Tis Hazari Courts on 05.07.2012. He had not talked with Ashish Begwani about the incident and Ashish Begwani had not informed the police in his presence from Munirka Flyover. He denied the suggestion that he had visited PS Lodhi Colony on 12.05.2012 and identified some persons there.
35. In cross-examination on behalf of the accused Deepak, PW6 deposed that he did not know the profession of Ashish Begwani. He did not know names of visitors of Ashish Begwani. He had gone to the house of Malluji at Lajpat Nagar about 15-20 days prior to the incident as well. He had never went to Panchsheel Club. There were 20-30 cars in the street where the house of Malluji was located. The white Indigo car was at a distance of 10-12 cars which were standing on the left side from the house of Malluji. There was no driver in those cars except in the Indigo car in which two persons were sitting. He could not say who was sitting where. He admitted as correct that nobody got down from Indigo vehicle at Panchsheel Flyover.
36. In cross-examination on behalf of the accused Shekhar Chaudhary, PW6 stated as correct that he was called by the police on 2-3 dates after the incident and on all three occasions Sukanto Ray was also called and they were shown photographs. He had stated to the police that he could identify driver of Toyota Corolla vehicle but this statement was not found to be so record when confronted with his statement Ex.PW6/DA. The Chevrolet Beat vehicle was not touched by Toyota Corolla vehicle and there was no impact.
State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 24/55
37. In cross-examination on behalf of the accused Devraj Singh, PW6 has stated that he did not remember as to what time Sukanto Ray reported for duty on 10.05.2012. He himself reported at 10:30am. He deposed that Toyota Corolla vehicle had not touched when their car was overtaken. The persons who get down from Toyota Corolla vehicle did not quarrel with him. At that stage he was confronted with his statement Ex.PW6/DA where it was recorded that the Toyota Corolla hit his vehicle on the left side. He started shouting and then three persons came out of the said Toyota Corolla vehicle. He deposed that Devraj was not one of those three persons who came out of Toyota Corolla vehicle.
Involvement of the TATA Indigo vehicle bearing registration no. DL-8CM-1567
38. The submission of the counsel for the accused persons Devraj Yadav and Deepak Kumar was that the story of involvement of the said vehicle was introduced later on by the Special Cell in connivance with PW2 Sukanto Ray and PW6 Sanjay Mishra.
39. The record reveals that there are three statements of PW2 Sukanto Ray, two of which are dated 10.05.2012 and the third which is dated 05.07.2012. There are two statements of PW6 Sanjay Mishra, one dated 10.05.2012 and another dated 05.07.2012. Ex.PW2/A is the first statement of PW2 Sukanto Ray dated 10.05.2012. It is on the basis of this statement that the FIR has been registered. This statement does not contain any reference to any TATA Indigo vehicle bearing registration no. DL-8CM-1567 being occupied by two persons having been noticed by PW2 Sukanto Ray either outside the house of Mallu at Lajpat Nagar or the said vehicle being present behind their Chevrolet State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 25/55 Beat vehicle on the flyover at the time of the incident of loot. Similarly, the supplementary statement also dated 10.05.2012 of PW2 Sukanto Ray does not mention anything about the said TATA Indigo vehicle or any person having been noticed as its occupants at Lajpat Nagar or on the flyover at the time of the incident of loot. It is only the third statement of Sukanto Ray dated 05.07.2012 which mentions that Sukanto Ray had noticed the said vehicle outside the house of Malluji with two occupants in Lajpat Nagar as well as the said vehicle having stopped a little ahead of their Chevrolet Beat vehicle at the time of the incident.
40. Now coming to the statement of PW2 made in the Court, the initial examination in chief of PW2 does not make any reference of the involvement of the said TATA Indigo vehicle at the time of the incident. There is no mention by PW2 of having noticed the said vehicle outside the house of Mallu at Lajpat Nagar. Before the conclusion of the examination in chief of PW2, the Addl. PP for the State was permitted to put certain leading questions to PW2. The same is reproduced as under:-
"At this stage, Ld. Addl. PP wants to ask some leading questions from the witness. Heard. Allowed.
I had taken the cash from the office of Mallu Sahab. We had reached Panchsheel Flyover at about 2:45pm to 2:50pm. There was another Tata Indigo Car which was following us which I came to know after seeing the CCTV Footage of BRT and I identified a person in that car who had earlier been working as a Driver with Atul Goel at Ashok Vihar. I do not remember the exact date when I had gone to Tis Hazari as to whether it was 05.07.2012 or 10.07.2012."
(emphasis supplied)
41. The examination in chief of PW2 reveals that he has been put specific leading questions which he has answered. Even then he State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 26/55 has not stated that he had noticed the TATA Indigo vehicle at the residence of Mallu at Lajpat Nagar or at the time of the incident. PW2 has made reference of having seen CCTV footage of BRT through which he came to know that a TATA Indigo vehicle was following them and that he identified an occupant of the TATA Indigo car as the driver of one Atul Goel from the said footage. In cross-examination PW2 again stated that he had been shown CCTV footage of BRT but the same was not clear and he could not identify any person including Devraj Yadav in that footage. He has stated that the CCTV footage was shown to him in PS Hauz Khas in the night of 11.05.2012 at 9:30pm and Sanjay Mishra was present with him. He further stated that he did not know any businessman by the name of Atul Goel or Nawal Goel.
42. The prosecution has not produced any CCTV footage of BRT as a piece of evidence in this case. In fact the police report does not mention anything about any CCTV footage of BRT having been retrieved and shown to PW2. There is no statement of PW2 under Section 161 of the Cr.P.C. making reference to having been shown any CCTV footage at any point of time. There is no witness by the name of Atul Goel examined during the course of investigation mentioned in the police report. There is no reference to any person by the name of Atul Goel in any of the three statements of PW2 recorded under Section 161 of the Cr.P.C. Even the statement dated 05.07.2012 in which the story of the involvement of TATA Indigo vehicle and the two accused persons Devraj Yadav and Deepak Kumar is mentioned for the first time does not state anything about any CCTV footage of BRT having been shown to PW2.
43. There are two statements of PW6 Sanjay Mishra recorded State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 27/55 under section 161 of the Cr.P.C., one dated 10.05.2012 Ex.PW6/DA and another dated 05.07.2012. The statement dated 10.05.2012 of Sanjay Mishra does not make any reference with respect to the TATA Indigo vehicle or any of its occupants at the house of Mallu at Lajpat Nagar or at the time of the loot. Reference of the involvement of the said vehicle is made only in the supplementary statement dated 05.07.2012 as per which Sukanto Ray noticed the said vehicle and its occupants outside the house of Mallu in Lajpat Nagar and the said vehicle having stopped a little ahead of the Chevrolet Beat vehicle of the complainant on the flyover.
44. PW6 in his examination in chief in his narration about the incident initially does not state anything about the TATA Indigo vehicle having been seen by him at Lajpat Nagar or at the time of the incident. It is only on the fourth page of his examination in chief when there is a reference of PW2 going to Tis Hazari Courts on 05.07.2012 does PW6 make a reference about the Indigo vehicle having been seen parked near the house of Mallu at Lajpat Nagar. He then states that the said vehicle was seen by him on Panchsheel Flyover which had stopped ahead of them at some distance.
45. In cross-examination PW6 reiterated that he had seen the said TATA Indigo vehicle outside the house of Mallu at Lajpat Nagar and denied suggestions to the contrary.
46. Having considered the statements of Sukanto Ray and Sanjay Mishra recorded under Section 161 of the Cr.P.C. prior to 05.07.2012, it is clear that there is absolutely no mention of the involvement of TATA Indigo vehicle in the offence. The mention of the State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 28/55 involvement of said vehicle has surfaced for the first time in the supplementary statements dated 05.07.2012 of both these witnesses. In the court PW2 in answer to leading questions has mentioned the involvement of the said vehicle but only after he saw CCTV footage of the same. In other words PW2 had not noticed the said vehicle at the time of the incident. In addition, he has stated that he was shown CCTV footage of the BRT Corridor in PS Hauz Khas at 9:30pm on 11.05.2012. There is absolutely no whisper in the police report about any CCTV footage of the BRT having been shown to PW2 in the presence of PW6 in PS Hauz Khas. If the same was done then it has been concealed from the Court. Initially PW2 stated that he had recognized a driver of one Atul Goel but in cross-examination he stated that he did not know any person by the name of Atul Goel. In cross-examination PW2 has further stated that he could not identify Devraj Yadav from the CCTV footage as it was not clear.
47. In these facts and circumstances, a serious doubt has arisen about the involvement of the said TATA Indigo vehicle and accused Devraj Yadav and Deepak Kumar in the incident of loot on 10.05.2012. The only inference which arises from the evidence and testimonies of PW2 and PW6 is that the story about the involvement of the TATA Indigo vehicle and accused Devraj Yadav and Deepak Kumar in the incident of loot has been introduced later on.
Identification of Devraj Yadav, Deepak Kumar, Nirbhay Thakur, and Shekhar Chaudhary by PW2 and PW6 as the persons involved in the loot
48. Submission had been made that on behalf of these State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 29/55 accused persons that they had been shown to the witnesses before them having refused to participate in their TIP.
49. PW2 Sukanto Ray in his examination in chief has stated that after the incident of loot took place on 10.05.2012, he and Sanjay Mishra PW6 called Ashish Begwani PW9 who then called the police. Police from PS Hauz Khas and PS Vasant Vihar came and they took PW2 and PW6 to the place of the incident and thereafter they were taken to PS Hauz Khas. They were then kept in PS Hauz Khas through the entire night and then allowed to go in the morning with instructions to come back at 10am. Then PW2 and PW6 came to the police station at 10am and they were shown many photographs till night but they could not identify any person. They were relieved at 10pm and then asked to come to Kamla Market police station on the following day at 11am. PW2 stated that on the next day they reached Kamla Market police station where they were shown photographs till 6pm but they could not identify any person. Thereafter they went to the office of the Special Cell at 6:30pm and were shown some persons who had been apprehended. PW2 stated that he identified four of these persons two of whom were in his car and other two who where in a separate car following them.
50. These four accused persons who were so identified in the office of the Special Cell would be Devraj Yadav, Deepak Kumar, Nirbhay Thakur and Shekhar Chaudhary because as per the case of the prosecution they were apprehended on 12.05.2012. The same is confirmed by the statement made by PW2 in cross-examination where PW2 has stated that he was shown Shekhar Chaudhary, Nirbhay Thakur, Deepak Paliwal and Devraj in the police station on 12.05.2012.
State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 30/55
51. Perusal of the TIP record reveals that a joint application Ex.PW3/E for conducting TIP with respect to Shekhar Chaudhary and Devraj was moved on 21.05.2012. A separate application also dated 21.05.2012 was moved for TIP qua Deepak Kumar. Devraj Yadav and Deepak Kumar refused to participate in their TIP on 28.05.2012 vide Ex.PW3/F and Shekhar Chaudhary also refused to participate in his TIP on 28.05.2012 vide Ex.PW3/G. Further the application Ex.PW3/A for conducting TIP qua Nirbhay Thakur was moved on 26.05.2012 and the proceedings in which Nirbhay Thakur refused to participate in the TIP were recorded on 26.05.2012 itself vide Ex.PW3/B.
52. Devraj Yadav, Deepak Kumar, Nirbhay Thakur and Shekhar Chaudhary were apprehended on 12.05.2012. PW2 identified them in the office of the Special Cell at Lodhi Road on 12.05.2012 with PW6. The TIP proceedings of these four persons were held on 26.05.2012 and 28.05.2012. Therefore it is evident that PW2 with PW6 were exposed to Devraj Yadav, Deepak Kumar, Nirbhay Thakur and Shekhar Chaudhary on 12.5.2012 before conducting their TIP.
53. One aspect of the case which falls for consideration is that when Devraj Yadav, Deepak Kumar, Nirbhay Thakur and Shekhar Chaudhary were already in the custody of the police, what was the reason for the IO to have delayed their TIP. Ideally the TIP of the accused persons should have been conducted immediately when the incident was fresh in the minds of the witnesses but the applications for the TIP were moved only on 21.05.2012 and 26.05.2012.
54. In this regard it is also to be considered that in his State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 31/55 examination in chief, PW2 stated that out of the four persons he identified in the office of Special Cell, two of them were in his car and other two persons were in a separate car which was following them. This particular part of the examination in chief of PW2 is prior to his statement made during examination in chief after leading questions were put to him. In answer to the leading questions, PW2 has only stated that he had come to know after seeing the CCTV footage of the BRT that a TATA Indigo vehicle was following him and he identified a person in that car who was earlier working as a driver with Atul Goel. Thus PW2 knew that person in the Indigo vehicle from before, PW2 did not state that the person he recognized from the CCTV footage was one of the six accused of the case. In fact in cross examination he stated that as the CCTV footage was not clear he could not identify Devraj Yadav from the same. In these circumstances, when PW2 did not notice the TATA Indigo vehicle at the spot and was unable to identify anyone from the CCTV footage, how would it have been possible for PW2 to have identified the occupants of the said vehicle either on 12.5.2012 or in the Court?
55. Now coming to the manner in which PW2 has identified the accused persons in the Court, the examination in chief dated 19.01.2013 records as under:-
"On 10.07.2012, I went to Tis Hazari Courts and I identified all six accused persons in Tis Hazari compound. I identify all the six persons present in the court today. The witness has identified the accused persons today in the court by pointing them out with finger and has told about the four persons, whom he had identified first, and then the fifth person whom he had identified and also the sixth person. He has identified the accused persons by name except two accused persons whose names are Vijay and Dev Raj. Police had recorded my statement which is Ex.PW2/A which bears my signatures at point A."
State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 32/55
56. Going by the above examination in chief of PW2, he has not clearly identified the accuse persons as per their respective roles in the incident of loot. He has not separately identified the four persons who had come in the Toyota Corolla vehicle and the other two persons who were in the TATA Indigo vehicle.
57. PW6 in his examination in chief has stated that after the incident took place on 10.05.2012, he along with PW2 Sukanto Ray was taken to PS Hauz Khas and they were kept in the police station for the entire night. The next morning i.e. 11.05.2012, they went to the house of Ashish Begwani and after taking rest for 2-3 hours they went back again to the Hauz Khas police station where they were again shown photographs but they could not recognize anybody. The next date i.e. 12.05.2012, they went to an office of police near New Delhi Railway Station (Kamla Market police station as per PW2) where they were shown photographs but they could not identify any person. PW6 has not stated that he had gone to the office of Special Cell Lodhi Road in the evening of 12.05.2012 where PW2 identified four persons who were in the custody of the police. PW6 further stated that he identified all the six accused on 05.07.2012 when they had gone to Tis Hazari Court outside court no.38 when they passed in front of him.
58. PW6 identified Devraj Singh and Deepak Kumar as the persons who were in the TATA Indigo vehicle. He identified Shekhar to be the person who was sitting in the Toyota Corolla vehicle and the remaining three accused persons namely Nirbhay Thakur, Narender @ Chotu and Vijay Kumar Yadav to be the persons who had got into their Chevrolet Beat vehicle.
State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 33/55
59. In cross-examination PW6 has stated that he identified the six persons on 05.07.2012 in Tis Hazari Courts and immediately thereafter he then went to the office of Special Cell Lodhi Road where he identified both the vehicles used in the incident. In cross- examination, PW6 remained steadfast with his version.
60. PW6 has identified all the six accused persons and has ascribed specific roles to each of the accused persons. However what is to be considered is that as per PW2, he i.e. PW2 was present with PW6 when he identified four of the accused persons in the office of the Special Cell at 6:30pm on 12.05.2012. Therefore as per PW2 even PW6 was shown the above mentioned four accused persons in the office of the Special Cell at 6:30pm on 12.05.2012 prior to their refusal to take part in their TIP. Further, the first statement of PW6 recorded under Section 161 of the Cr.P.C. Ex.PW6/DA dated 10.05.2012 does not make any mention of any TATA Indigo vehicle with two persons involved in the incident. There is no explanation as to why PW6 had failed to mention the involvement of TATA Indigo vehicle in his first statement. It is only in his second statement dated 05.07.2012 which was recorded almost after two months of his first statement that he has mentioned the use of a TATA Indigo vehicle and two more persons in the incident.
61. Hence for the reasons recorded above, the identification of Devraj Yadav, Deepak Kumar, Nirbhay Thakur and Shekhar Chaudhary by PW6 in the Court as having been involved in the incident of loot cannot be relied upon.
State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 34/55 Testimony of PW2 and PW6 qua Narender @ Chotu and Vijay Kumar Yadav
62. The next question which arises now is whether the versions of PW2 and PW6 can be relied upon qua accused Narender @ Chotu and Vijay Kumar Yadav?
63. The involvement of Devraj Yadav and Deepak Kumar seems to have been introduced subsequently. Devraj Yadav and Deepak Kumar along with Nirbhay Thakur and Shekhar Chaudhary were shown to PW2 and PW6 in the office of the Special Cell much prior to their TIP. There is also the aspect of BRT footage having been shown to the witnesses from which PW2 recognized one person as a driver one Atul Goel being in the TATA Indigo vehicle but this person is not amongst the accused persons. That part of the investigation, if any, where CCTV footage of BRT was used is not at all part of the police report. If there is any such CCTV footage of the BRT then the same has been concealed from the Court. PW2 has identified Devraj Yadav and Deepak Kumar as well as the TATA Indigo car even though he deposed that he came to know about them only after viewing the CCTV footage of BRT but then in cross-examination stated that he could not identify Devraj Yadav from the footage as it was not clear. It appears that PW2 at no point of time saw Devraj Yadav and Deepak Kumar but still identified them in the Court.
64. In these facts and circumstances, it will not be safe to rely upon the testimonies of PW2 and PW6 with respect to identification of Narender @ Chotu and Vijay Kumar Yadav as the persons involved in the incident of loot on 10.05.2012.
State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 35/55
65. Defence evidence had been led by Vijay Kumar Yadav who had summoned the RTI Record through DW1 and DW2 regarding PCR Form of DD No.30 and record of visitors qua Vijay Kumar Yadav in Tihar Jail. However since the statements of PW2 and PW6 have not been believed by this Court, I do not consider it necessary to deal with the defence evidence led by Vijay Kumar Yadav.
RECOVERIES MADE FROM THE ACCUSED PERSONS
66. As per case of the prosecution, Devraj was apprehended on the basis of secret information on 12.5.2012 and on his disclosure and pointing out, accused Deepak was apprehended; thereafter on the disclosure of Deepak, accused Nirbhay Thakur was apprehended; on the disclosure of Nirbhay Thakur, Shekhar Chaudhary was apprehended. Further on 20.05.2012 Narender @ Chotu was apprehended on secret information and on 08.06.2015 Vijay Kumar Yadav was apprehended also on secret information. The looted money was recovered from all the accused persons in different amounts.
Recovery of Rs.5,00,000/- from the house of Devraj Singh Yadav from house at B-48, Shalimar village, Delhi on 14.05.2012
67. As per the prosecution on 14.05.2012, Devraj Yadav gave a disclosure statement Ex.PW12/M1 and on the basis of the same, the police team went to the above premises of Devraj Yadav and he produced a bag from the said premises which was found to be containing Rs.5,00,000/- in the form of ten bundles of notes of Rs.500/- denomination. All the bundles had the stamp of AXIS bank and serial number of SEBI. The bag was sealed and seized vide seizure memo Ex.PW12/N. State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 36/55 Recovery of Rs.8,50,000/- from the house of Deepak Kumar at A- 18, Shahipur Village on 14.05.2012
68. As per case of the prosecution, in pursuance of a supplementary disclosure statement of Deepak Kumar Ex.PW12/M2, the said accused led the police to the above premises from where he produced a yellow coloured bag containing Rs.8,50,000/- in the form of seventeen bundles of Rs.500/- denomination each. All the bundles were having the stamp of AXIS Bank and serial of SEBI. The same were sealed and seized vide memo Ex.PW12/O. The witnesses to the same are PW12, PW13 and PW14 who are consistent in their version in their examination in chief and cross-examination.
Recovery of Rs.3,50,000/- from the house of Shekhar Chaudhary at 115D, PD Block, Pitampura, New Delhi on 14.05.2012
69. As per case of the prosecution, in pursuance of a supplementary disclosure statement of Shekhar Chaudhary Ex.PW12/ M4, the said accused led the police to the above premises from where he produced a polythene bag from a bed box from the second room of the third floor of the premises containing Rs.3,50,000/- in the form of seven bundles of Rs.500/- denomination each. All the bundles were having the stamp of AXIS Bank and serial of SEBI. The same were sealed and seized vide memo Ex.PW12/P. Recovery of Rs.48,00,000/- from the house of Chander Prakash at 3/17, Rana Pratap Bagh on 15.05.2012 at the instance of Nirbhay Thakur
70. As per the case of the prosecution on 15.05.2012 Nirbhay State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 37/55 Thakur was interrogated and he gave a disclosure statement Ex. PW 12/M-3 and led the police team to the house of Chander Prakash at 3/17, Rana Pratap Bagh, Delhi. On the direction of Nirbhay Thakur Chander Prakash took out a polythene bag from a bed box in room from the ground floor of the said house in which Rs. 48,00,000/- were found. All the bundles, 96 bundles of Rs. 500/- denomination each had the stamp of Axis Bank and serial number of SEBI. They were seized vide memo Ex. PW 8/B which had been signed by Chander Prakash.
71. Chander Prakash was examined as PW 8. He has stated in his examination in chief that he had received a call from the wife of his friend named Roy on 10/11/12.05.2012 who stated that two boys would come and deliver a bag to them. He stated that in the evening two boys came and delivered a bag at his house and on the next day the police came and made inquiries and took the bag and him to the police station. In the police station the bag was opened and was found to be containing Rs. 48,00,000/-. He signed some papers in the police station. The Addl. PP for the state at that stage first permitted to put leading questions to PW 8. In answer to the leading questions PW 8 stated that the name of wife of Roy was Renu. He did not know Nirbhay Thakur but he knew that the name of brother of Renu was Bobby (Nirbhay Thakur) but he had never met Nirbhay Thakur. He denied the suggestion that it was Nirbhay Thakur who had delivered the bag to him on 11.05.2012 or that Nirbhay Thakur had come with the police to his residence and at his instance he had given the packet containing money to the police. PW 8 however admitted his signature on the seizure memo Ex. PW 8/B of the currency notes at point A. He then correctly identified Nirbhay Thakur in the Court as the person who had come to his house with the police. In cross-examination PW 8 State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 38/55 stated that he had seen Nirbhay Thakur for the second time in Court that day and that the police told him that the person they had brought was Nirbhay Thakur.
72. From the statement of PW8 it is apparent that the recovery was effected from the house of PW8 at the instance of Nirbhay Thakur as it was the said accused who had led the police to the house of PW8. Even though PW8 claimed that Nirbhay Thakur was not the person who had given him the packet on 11.05.2012, the fact that the recovery was made at the instance of Nirbhay Thakur reveals that Nirbhay Thakur was aware about the place where the said currency had been concealed. Moreover PW8 was known indirectly to Nirbhay Thakur through his sister Renu.
73. Thus, the recovery of Rs.48,00,000/- at the instance of Nirbhay Thakur from the premises of PW8 stands proved.
Recovery of Rs.25,00,000/- from the house of Titu at Hamid Pur Village on 20.05.2012 at the instance of Narender @ Chotu
74. As per case of the prosecution, in pursuance of a secret information Narender @ Chotu was apprehended on 20.05.2012 at Bakoli Modh, NH-1. Upon interrogation, he admitted his involvement and gave a disclosure statement Ex.PW12/Q3. In pursuance of the said disclosure statement, Narender @ Chotu led the police to the house of one Titu, son of Baljeet and Narender @ Chotu took out a blue coloured bag from a bed box on the ground floor which was fund to be containing Rs.25,00,000/- in the form of fifty bundles of Rs.500/- denomination each. All the bundles were having the stamp of AXIS Bank and serial of SEBI. The same were sealed and seized vide memo Ex.PW12/Q4.
State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 39/55 Recovery of Rs.38,00,000/- from Village Badali Peeplewala Mohalla, Delhi on 14.06.2012 at the instance of Vijay Yadav
75. As per case of the prosecution, in pursuance of a secret information Vijay Yadav was apprehended on 08.06.2012 at Japani Park Sector-9 Rohini. Upon interrogation, he admitted his involvement and gave a disclosure statement Ex.PW12/R3 and in pursuance of the said disclosure statement, Vijay Yadav led the police and got a Chevrolet Beat vehicle bearing registration no. DL-4CAD-8535 recovered. The same was seized vide memo Ex.PW12/R4.
76. On 14.06.2012, Vijay Yadav gave a supplementary disclosure statement upon interrogation which was recorded vide memo Ex.PW12/R6. In pursuance of the same, Vijay Yadav led the police team to village Badali from where he got recovered a green coloured bag concealed in wooden planks in the corner of a vacant plot which was found to be containing Rs.38,00,000/- in the form of seventy six bundles of Rs.500/- denomination each. All the bundles were having the stamp of AXIS Bank and serial of SEBI. The same were sealed and seized vide memo Ex.PW12/R7.
Recovery of Rs.17,00,000/- from the house of Amit Kumar at house no.635, Udyan Panna Bagari Mohalla, Narela on 17.06.2012 at the instance of Vijay Yadav
77. As per the prosecution, Vijay Yadav gave supplementary disclosure statements upon interrogation. In pursuance of the same, Vijay Yadav led the police team to Narela on 17.06.2012 at House No.635, Udyan Panna Bagari Mohalla and called out one Amit Kumar who on the direction of Vijay Yadav produced a laptop bag which was found to be containing Rs.17,00,000/- in the form of thirty four bundles State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 40/55 of Rs.500/- denomination each. All the bundles were having the stamp of AXIS Bank and serial of SEBI. The same were sealed and seized vide memo Ex.PW12/T. The witnesses to the same are PW12, PW13 and PW14 who are consistent in their version in their examination in chief and cross-examination.
Submissions made regarding the recoveries by the Ld. Counsel for the accused persons
78. The witnesses to the apprehension of these accused persons and recoveries effected from them are PW12 HC Pravesh Kumar, PW13 Ct Ankit Deshwal and PW14 Insp. Rajendra Singh Sehrawat. In addition PW8 Chander Prakash is the recovery witness with respect to Rs.48,00,000/- recovered from his house at the instance of Nirbhay Thakur. I have already dealt with the testimony of PW8 and have returned a finding that the recovery made from his house at the instance of Nirbhay Thakur stood proved.
79. As far as the remaining recoveries are concerned, the witnesses to the same are PW12, PW13 and PW14. There are no public witnesses to the said recoveries. I have gone through the testimonies of PW12, PW13 and PW14. These three police witnesses have deposed in their examination in chief as per version set up by the prosecution. The cross-examination of these witnesses is voluminous. The counsel for the accused persons had attacked the recoveries made mainly on the ground that there were no public witnesses associated. They had submitted that these three witnesses in their cross- examination have deposed that public witnesses were available which would mean that public persons were available but no attempt was made by the members of the police team to associate such public State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 41/55 persons with their proceedings. It had also been submitted that one of the disclosure statements of the accused were not signed by the witnesses.
80. Before dealing with these submissions, I may note after going through the examination in chief and cross examination of these three police witnesses, I do not find any material contradictions or inconsistencies in the version of these three police witnesses. It is to be kept in mind that accused persons were apprehended in May, 2012. The examination in chief and cross-examination of these witnesses were going on till June, 2015. There are total of six accused persons in this case and these witnesses have been subjected to repetitive cross examined on each and every aspect by counsel for the accused persons. In these facts and circumstances, there are bound to be minor contradictions in their versions. However all three police witnesses are consistent in the manner in which the accused have been apprehended and recoveries effected from them.
81. So far as question of non joining public witnesses in the apprehension of the accused persons is concerned, in the case of Gian Chand v. State of Haryana reported in (2013) 14 SCC 420 the Hon'ble Supreme Court was pleased to refer to the law on the said question and hold as under:-
"The wise principle of presumption, which is also recognised by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through cross-examination of witnesses or through other materials, to show that the State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 42/55 evidence of the police officer is unreliable. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action is unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
82. It was further observed by the Hon'ble Supreme Court in the case of Gian Chand v. State of Haryana that:-
"37. Section 114 of the 1872 Act gives rise to the presumption that every official act done by the police was regularly performed and such presumption requires rebuttal. The legal maxim omnia praesumuntur rite it dowee probetur in contrarium solemniter esse acta i.e. all the acts are presumed to have been done rightly and regularly, applies. When acts are of official nature and went through the process of scrutiny by official persons, a presumption arises that the said acts have regularly been performed."
83. In the case of Gian Chand v. State of Haryana (supra) the Hon'ble Supreme Court was pleased to hold that not joining a public witness by the police would not be fatal to the case set up regarding recoveries from the accused. It was held that the presumption prescribed under section 114 of the Evidence Act regarding official acts having been performed regularly attaches to the acts of the police. Such a presumption was rebuttable and the onus to rebut the same would be on the accused.
84. Applying ratio of above case in the present case, I do not find anything in cross-examination of PW12, PW13 and PW14 by which the presumption raised under Section 114 of the Indian Evidence Act regarding their official acts could be demolished. Thus in the opinion of State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 43/55 this Court, apprehension of the accused persons in the manner as claimed by the prosecution and recoveries effected from them cannot be doubted.
85. Submission had been made as to why the recovery from the premises of Devraj Yadav was effected on 14.05.2012 when he had been apprehended on 12.05.2012 itself. The explanation to the same is that on 12.05.2012 Devraj Yadav had given a disclosure statement Ex.PW12/C in which he had falsely disclosed that he had sent the looted money to his village which he could get recovered.
86. It had also been submitted that Devraj Yadav is claimed to have been apprehended from his residence as his arrest memo Ex.PW12/A mentions the place of his arrest as B-48, Shalimar Village, Delhi and therefore it was not understood as to why his house was not searched at that time. In this regard, PW12 HC Parvesh in his cross- examination had explained that Devraj was the first person to be apprehended and the priority was to apprehend the other persons involved in the loot as disclosed by him. The explanation of PW12 seems to be plausible and acceptable.
87. On behalf of Shekhar Chaudhary it was submitted that his disclosure statement Ex.PW12/L-3 was not signed by PW12 and PW13 whereas the others had been signed. In this regard it is to be seen that all disclosure statements other than Ex.PW12/L-3 has been signed and thus the said witnesses not having signed the same may have been an oversight on the part of the IO.
88. Devraj Yadav has led evidence in defence. He has State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 44/55 examined his brother Dalbir Singh DW4 and Neelam Yadav DW5 who is wife of DW4. Both have stated that DW4 who is employed in the Indian Army had taken a loan of Rs.2,00,000/- from SBI which DW4 transferred to the joint account with his wife DW5. DW5 withdrew the amount of Rs.2,00,000/- from the joint account. Both had saved Rs.1,50,000/- from agricultural income and DW5 handed over Rs.3,50,000/- in cash to Devraj Yadav for the purposes of purchasing a flat in Delhi / NCR. In cross-examination both DW4 and DW5 stated that they did not have any documentary evidence of agricultural income. They did not know the particulars of any flat which had been arranged by Devraj Yadav for purchase. They had not claimed the amount of Rs.3,50,000/- either from the police or from the Court. They had not made any such statement before any authority prior to deposing in Court.
89. As recorded above, the recovered currency was released to the complainant on an application filed after notice of the same had been given to the accused persons. None of the accused persons claimed any amount of the recovered currency nor did they raise any objection for release of the recovered currency. The same is recorded in the orders dated 05.06.2012 and 02.07.2012 of the Ld. CMM, New Delhi. If Devraj Yadav had any defence and any claim regarding the amount recovered from him, logically he would have raised an objection before the Ld. CMM when notice of the application for release of the recovered currency was given to the accused persons including Devraj Yadav. Not having done so and DW4 and DW5 not having made any claim to the alleged amount of Rs.3,50,000/- at any point prior to deposing as defence witnesses in this Court, it is apparent that the defence raised by Devraj Yadav regarding the amount of Rs.3,50,000/-
State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 45/55 is false.
STATEMENTS OF THE ACCUSED PERSONS UNDER SECTION 313 OF THE CR.P.C.
90. The prosecution has been able to prove that recoveries of the looted amount had been made from the accused persons. When the said incriminating evidence was put to the accused persons at the time of recording of their statements under Section 313 of the Cr.P.C., the accused have simplicitor stated the same to be incorrect. Except for Devraj Yadav who claimed that the amounts were given to him by his brother for purchase of a flat, the remaining accused persons have not offered any explanation as to how such huge amounts came to be recovered at their instance. The defence of Devraj Yadav has been found to be false. With the other accused persons not having furnished any explanation as to how such amounts came into their possession, such false and incorrect answers are another circumstance which points towards their guilt.
RECOVERY OF MAHINDRA SCORPIO BEARING REGISTRATION NO. DL-2CFY-0076
91. As per the case of the prosecution, Devraj Singh had from the looted amount purchased this vehicle from Kamal Kumar for Rs.3,20,000/-. The same was seized vide Ex.PW12/H on 12.05.2012 at the instance of Devraj Singh.
92. The registered owner of this vehicle Kamal Kumar was examined as PW11. He has only stated that Devraj Singh had taken the vehicle from him on 11.05.2012 on trial as he wanted to purchase it. Later on, PW11 came to know that this vehicle had been seized by the State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 46/55 police and PW11 got the vehicle released on superdari.
93. There is no document of sale produced by the prosecution regarding the allegation of purchase of the said vehicle. The owner of the vehicle himself has taken it back on superdari. He has not stated that the sale of the vehicle stood effected. Therefore there is insufficient evidence to hold that this vehicle was purchased by Devraj Singh from the looted amount. Needless to state that the disclosure statement regarding purchase of the vehicle by Devraj Singh from the looted money is hit by Section 25 of the Evidence Act and is inadmissible in evidence. Therefore the prosecution has not been able to prove that the said vehicle was purchased by Devraj Singh from part of the looted amount.
FINDINGS WITH RESPECT TO CHARGE UNDER SECTIONS 365, 395 BOTH READ WITH SECTION 34 OF THE IPC QUA ALL THE ACCUSED PERSONS & CHARGE UNDER SECTION 397 IPC QUA NARENDER @ CHOTU AND VIJAY KUMAR YADAV
94. I have already rendered a finding that the involvement of the TATA Indio vehicle registration no. DL-8CM-1567 in the incident of loot by Devraj Singh and Deepak Kumar is doubtful. Hence both Devraj Singh and Deepak Kumar are acquitted of the charges framed against them under Sections 365, 395 both read with Section 34 of the IPC.
95. The identification of Nirbhay Thakur @ Bobby, Shekhar Chaudhary, Narender @ Chotu and Vijay Kumar Yadav by PW2 and PW6 has not inspired confidence. All these four accused persons are also given benefit of doubt and acquitted of the charges framed against them under Sections 365, 395 both read with Section 34 of the IPC. Consequently, Narender @ Chotu and Vijay Kumar Yadav are also State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 47/55 acquitted of the additional charge under Section 397 of the IPC.
CHARGE UNDER SECTION 412 OF THE IPC INDIVIDUALLY AGAINST ALL THE SIX ACCUSED PERSONS
96. The recoveries of the looted amount stand proved qua the accused persons. Charge under Section 412 of the IPC had been framed on the ground that they had retained looted cash in the commission of a dacoity. Dacoity is defined under Section 391 of the IPC to be robbery committed by five or more person together.
97. I have acquitted Devraj Singh and Deepak Kumar for the charges under Sections 365, 395 both read with Section 34 of the IPC on the ground that their involvement with the use of TATA Indigo vehicle was introduced and not believable. Excluding these two accused would leave only four persons to have been involved in the robbery. Thus the charge under Section 412 of having retained looted cash in the commission of a dacoity would no longer subsists and what would be attracted is the offence under Section 411 of the IPC which is dishonestly retaining stolen property.
98. Hence all the accused persons are convicted for the offence punishable under Section 411 of the IPC.
CHARGE UNDER SECTION 174A OF THE IPC QUA ACCUSED NIRBHAY THAKUR
99. Nirbhay Thakur was granted interim bail by order dated 20.10.2014 with effect from 23.10.2014 to 29.10.2014. He did not surrender after availing the period of interim bail. He was apprehended and produced before the Court vide a Kalandra under Section 41.1 of State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 48/55 the Cr.P.C. on 22.01.2015. By that time process under Section 82 of the Cr.P.C. stood executed through PW17 ASI Om Prakash and he had been declared a proclaimed offender vide order dated 05.01.2015. There is nothing in the cross-examination of PW17 regarding execution of the process under Section 82 of the Cr.P.C. from which any doubt could be raised regarding the same. The fact that Nirbhay Thakur absconded from the Court after being released on interim bail is a matter of record. The same has not been even challenged by Nirbhay Thakur. There is no explanation in his statement under Section 313 of the Cr.P.C. regarding his absence from the Court. He is therefore convicted for the offence punishable under Section 174A of the IPC.
100. At this juncture, I may note that the counsel for the accused persons had strenuously argued that no source of looted money was produced by Ashish Begwani. They had submitted that even in the initial statement of PW2 and PW6, there is no mention that money was there in their Chevrolet Beat vehicle and the said allegation of money in the vehicle was made only later on.
101. In the opinion of this Court, if there is no source of the looted money i.e. whether it was withdrawn from any bank account or simply kept or was unaccounted cash, the same will not entitle any other person to loot it. If the looted cash is unaccounted for then the owner of the said money will have to face consequences under the applicable laws but the same will not come to the benefit of any of the accused persons. Further, it does appear that the money which was looted may be unaccounted cash and it was only for this reason that initially PW2 and PW6 were cagey in revealing the presence of the said amount of money. However subsequently, they have revealed that the State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 49/55 said amounts were looted. A person who is dealing in transactions of unaccounted cash / money will definitely try to keep it under wraps lest he be intercepted by officials of the revenue department of the Government. However later on both the witnesses have stated that the cash was looted and the same have been recovered. Thus I do not find any merit in the submission made by counsel for the accused persons. The same is rejected.
CONCLUSION
102. The net result of the above discussion is as follows:-
(a) All the six accused i.e. Devraj Singh Yadav, Deepak Kumar @ Panditji, Nirbhay Thakur @ Bobby, Shekhar Chaudhary, Narender @ Chotu and Vijay Kumar Yadav @ Babu are acquitted for the offences punishable under Sections 365, 395 and 34 of IPC;
(b) Accused Narender @ Chotu and Vijay Kumar Yadav @ Babu are acquitted for the offence punishable under Section 397 of the IPC;
(c) Accused Nirbhay Thakur @ Bobby, Devraj Singh Yadav, Deepak Kumar @ Panditji Shekhar Chaudhary, Narender @ Chotu and Vijay Kumar Yadav @ Babu are acquitted for the offence punishable under Section 412 of the IPC.
(d) All the six accused i.e. Devraj Singh Yadav, Deepak Kumar @ Panditji, Nirbhay Thakur @ Bobby, Shekhar Chaudhary, Narender @ Chotu and Vijay Kumar Yadav @ Babu are convicted for the offence punishable under Section 411 of the IPC.
(e) Accused Nirbhay Thakur is convicted for the offence punishable under Section 174A of the IPC.
Announced in the open Court (REETESH SINGH)
on 28th July, 2016 ASJ-02/FTC, PHC/NDD
28.07.2016
State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 50/55
Sessions Case No. 63 of 2013
State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 51/55 State vs. 1) Devraj Singh Yadav
2) Deepak Kumar @ Panditji
3) Nirbhay Thakur @ Bobby
4) Shekhar Chaudhary
5) Narender @ Chotu
6) Vijay Kumar Yadav @ Babu FIR No. 127 of 2012 PS: Special Cell (Hauz Khas) U/s: 392/365/395/397/34 IPC 28.07.2016 Present: Sh. Irfan Ahmad, Ld. Addl. PP for the State.
All the above mentioned six accused are produced from JC.
Ld.Counsel for the accused persons.
Vide separate judgment, all the accused are convicted for the offence punishable under Section 411 of the IPC. Accused Nirbhay Thakur is convicted for the offence punishable under Section 174A of the IPC in addition to Section 411 of the IPC.
State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 52/55 Put up the matter for arguments on sentence at 4pm.
(Reetesh Singh) ASJ-02/FTC, New Delhi District, Patiala House Courts, New Delhi 28.07.2016 At 4pm Present: Sh. Irfan Ahmad, Ld. Addl. PP for the State.
All the convicts are produced from JC.
Ld. Counsel for the convicts.
ORDER ON SENTENCE Submissions addressed.
All the convicts have been convicted for the offence under Section 411 of the IPC. The maximum punishment prescribed under Section 411 of the IPC is imprisonment of either description of three years or with fine or both.
FIR No. 127 of 2012//2// State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 53/55 Keeping in view the facts and circumstances of this case, I hereby sentence all the convicts for a term of imprisonment of three years for the offence punishable under Section 411 of the IPC and a fine of Rs. 50,000/- each. In default of payment of fine, all the convicts shall undergo a further period of simple imprisonment of six months.
Nirbhay Thakur stands convicted for the offence under Section 174A of the IPC. After absconding, he was rearrested and is in custody since 22.01.2015. As he has been acquitted for the graver charges which had been framed against him, I impose upon him a term of imprisonment already undergone by him for the offence under Section 174A of the IPC.
It is noticed that all the convicts have already been in custody for a period more than four years as on date. They have undergone more than the maximum possible sentence which can be imposed upon them even if the period of further simple imprisonment of six months in default of payment of fine is included. They are therefore directed to be released immediately from JC if not required in any other case.
Convicts furnish bail bonds in terms of provisions of Section 437A of the Cr.P.C. for an amount of Rs. 25,000/- which are accepted. The same shall remain in force for a period of six months from today.
File be consigned to the Record Room.
(Reetesh Singh) State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 54/55 ASJ-02/FTC, New Delhi District, Patiala House Courts, New Delhi 28.07.2016 State vs. Devraj Singh Yadav & Ors.
FIR No. 127 of 2012, PS: Special Cell (Hauz Khas) 55/55