Delhi District Court
State vs . Rajesh @ Prem @ Pawa on 28 November, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 04/2011
Unique Case ID: 02404R0338382010
State Vs. Rajesh @ Prem @ Pawa
S/o Sh. Mange Ram
R/o DBlock, Shardhanand
Colony, Bhalaswa Dairy, Delhi.
(Convicted)
FIR No. : 535/2009
Under Section : 395/397 Indian Penal Code.
Police Station : Maurya Enclave
Date of committal to Sessions Court : 17.2.2011
Judgment reserved on : 14.11.2011
Judgment pronounced on : 17.11.2011
JUDGMENT
Brief Facts:
As per the allegations on 20.10.2009 at around 7.50 PM in front of gate of House No. TU70, Pitampura, Delhi, the accused Rajesh @ Pawa @ Prem committed robbery of Rs.39.19 lacs on the point of pistol from Mahavir Saini and Ramesh Mittal while they were coming back after taking the cash amount from one Sawar Mal Goel on motor cycle and two wheeler respectively. State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 1 of 51 Case of prosecution in brief:
The case of the prosecution in brief is that on 20.10.2009 on the receipt of DD No. 25A SI Naresh Kumar along with Ct. Amarjeet reached at the spot i.e. TU70, Pitampura, Delhi, where one Mahavir Saini met them and has given his statement to the police. The complainant Mahavir Saini told the police that he was working at Gee Ispat Pvt. Ltd. where his duty was to collect cash. On 20.10.2009 at about 5:30 PM his owner Vijay Pal Garg called him and Ramesh Mittal and asked them to bring the cash from Wazirpur.
He further told the police that he took his motorcycle whereas Ramesh Mittal took his scooter and reached at A48 where they came to know that cash would come after some time and hence they went to another office at A52, Wazirpur but no cash was handed over to them there and thereafter they came back at A48 where Ramesh Mittal took Rs. 39.19 lacs cash from Sawar Mal and put the cash into two separate bags. He further informed the police that he was having a bag containing Rs.14.44 lacs. Thereafter, at about 7:50 PM they both along with their respective bags containing the cash amount reached at the house of Vijay Pal Garg at TU - 70, Pitampura and stopped their respective vehicles when suddenly three persons came on pulsor motorcycle and two persons came on scooter and stopped their vehicles and one of those five persons was having pistol while another snatched the bag from him and at the same time the third State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 2 of 51 person snatched the bag from Ramesh Mittal. The complainant further told the police that they raised alarm on which Vijay Pal came out from his house and thereafter they all went towards the accused persons but they left on their vehicles along with both bags containing the cash and while they left the spot, one of them fired towards them as a result they scared and they stopped chasing the accused persons. Thereafter, Vijay Pal made call at 100 number and police reached at the spot. On the basis of statement of complainant, rukka was prepared and FIR was got registered. During investigations on 19.09.2010 the present accused along with his associates were arrested by Inspector Attar Singh of Special Cell in another case where the accused Rajesh @ Prem disclosed his involvement in the present case and therefore he was arrested in his case also. After completing the investigations, charge sheet was filed in the court.
CHARGE:
Charges under Section 392/397 Indian Penal Code were settled against the accused to which he pleaded not guilty and claimed trial.
EVIDENCE:
In order to discharge the onus upon them, the prosecution has examined as many as sixteen witnesses:
State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 3 of 51 Public Witnesses:
PW5 Ramesh Chander Mittal has deposed that he is in service for last 67 years at G. Ispat Pvt. Ltd. situated at A28, Sector19, Rohini of which Vijay Pal is the owner. He has deposed that his duty is to collect the cash and a banking transaction on behalf of the company. According to him on 20.10.09, Vijay Pal called him and Mahavir Saini and asked him to bring the cash from the office of Sanwar Mal Goel, Wazirpur Industrial Area. He has deposed that he left his office on his scooter along with Mahavir Saini who was on his motorcycle. According to the witness, first they went to the office of Sanwer Mal Goel at A48, Wazirpur Industrial Area where one Vinod met them who asked them to wait as the cash had to come after sometime. Thereafter, they both left the office of Sawar Mal at A48 and reached at another office which is situated at A52, Wazirpur, but no cash was given to them there also. According to the witness, they left the said office and again came at A48 when Sanwar Mal Goel met them and he (witness) asked for the cash as directed by Vijay Pal on which Sanwar Mal Goel handed over them Rs. 39.19 lacs which they kept in two bags. He kept the bag in which Rs.24.75 las were kept whereas Mahavir Saini took the bag in which Rs.14.44 lacs Lacs were kept and they both left the office of Sanwar Mal on their respective vehicles for the house of Vijay Pal and when they reached near the gate of house of Vijay Pal in between 7:45 or 8 State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 4 of 51 p.m., i.e. at TU70, Pitam Pura and stopped their vehicles, at the same time one Pulsar motorcycle came there on which three persons came and two boys on the scooter came there. According to the witness, out of those five persons two persons snatched the bag from the motorcycle of Mahavir Saini on the point of pistol and one of remaining three persons pushed him (witness) as a result of which he fell down on the ground after which all the three persons from those five persons started beating him with kicks and fist blows and removed the bag from his scooter on which they both (victims) raised an alarm and on hearing their cries, Vijay Pal came out of his house. The witness has deposed that they both along with Vijay Pal tried to chase them but one of the assailants who was having pistol fired towards them (victims). According to the witness, all the five persons ran away from the spot on their motorcycle and scooter along with both the bags containing Rs.39.19 Lacs. The witness has deposed that due to fire, they stopped chasing the assailants due to which they succeeded in running away with the aforesaid cash, after which Vijay Pal made the phone call to the police and police came to the spot and they were interrogated and his statement was recorded by the police. The witness has further deposed that on 04.10.2010, he had gone to the police station to know the progress of the investigation and on that day he had seen one person sitting in the police station when he had identified him as one of those five persons State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 5 of 51 who had snatched the bags on the point of pistol. The witness has seen towards the accused Rajesh in the court and identified him as the same person who had snatched the bag from him and Mahavir Saini on the point of pistol.
In his cross examination by Ld. defence counsel, the witness has deposed that normally they go to office at about 9 a.m. and there is no fix time to leave the office in the evening. He is not aware if any official in the firm of Vijay Pal is dealing with cash and has voluntarily added that he used to hand over the cash to Vijay Pal. According to him, whatever dealing is done by him is not being maintained by him in the form of any pocket diary and voluntarily added that the same was being maintained by Vijay Pal. He has deposed that he is having his mobile phone having its number as 9560590769. According to him the most of the transaction is done by cheques and sometime Vijay Pal deals with cash in his business and he (witness) dealt with cash on almost ten to twenty occasions in the last year. The witness has deposed that the scooter on which he had gone to the office of Sanwer Mal Goel is registered in his name and they left the office of Vijay Pal at about 430 or 445 p.m. and first they reached at A48 at about 530 p.m. and thereafter, they reached at A52 at about 6 p.m. (again said 630 p.m.) but they could not meet Sanwar Mal and he was told by the Munim to come later and therefore they returned after about 2025 minutes. The witness has State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 6 of 51 deposed that they left the office of Sanwar Mal Goel at about 7 p.m. He has deposed that they did not count the total amount handed over to them and they left the Wazirpur Industrial Area at 730 p.m. and reached the house of Vijay Pal at 8 p.m. The witness has further deposed that he was on the scooter whereas Mahavir was on the motorcycle. He himself was having the bag containing cash amount Rs.24.75 lacs which he had put on the hook under the seat of the scooter whereas Mahavir was having Rs.14.44 lacs which he had put in a bag and hung the same on the handle in front of the motor cycle. According to the witness, the snatching from him was done by a different boy and the snatching done from Mahavir was done by a different person. He has deposed that one boy was driving the scooter and one boy was driving the motorcycle and it was three boys who came to them. He has deposed that his (victim's) helmet had fallen down when he was pushed and the person (assailants) who pushed him his helmet also fell down at the time of snatching the money bag. He has admitted that he did not receive any evident injury and has voluntarily added that he was hit on the kulla but the injury was not evident. According to him on 04.10.2010 he had gone to the police station to find out the fate of the case where he saw the accused. He has deposed that prior to 4.10.10, he had gone to the police station on 23 occasions and had also gone to Tihar Jail on three occasions for judicial TIP but there he could not identify the accused. He admits State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 7 of 51 that he has identified the accused after he had seen him at the police station. (Here, I may observe that the accused Rajesh had refused to participate in the Judicial Test Identification Parade proceedings and the witness could not identify the other suspects who participated in the TIP). He has deposed that he was not told by the IO that the accused was the one who had committed the incident and has voluntarily added that he saw the accused sitting outside the room of the SHO. According to him there were 23 other boys with the accused but he did not see any handcuffs on the accused when he saw him outside the room of the SHO which room is just on the entry after the reception counter opposite the passage. The witness has deposed that it was only when he saw the accused then he recollected the accused that he was the same person. According to him he had gone to the police station after the TIP proceeding. He has denied the suggestion that he was shown the photographs of the accused and also shown the accused and asked to identify them. He has denied the suggestion that no incident had taken place and the entire story is concocted and they had stage managed the entire incident only to mislead the Govt. authorities.
PW6 Sawar Mal Goel has deposed that he is into the business of stainless steel under the name of Ananya Foils Pvt. Ltd. situated at A48, Wazirpur Industrial Area,Delhi 52. According to him he regularly purchase material from Vijay Gupta resident of State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 8 of 51 TU70, Pitampura, Delhi, having its factory at Bahalgarh, Sonipat under the name of Gee Espate Pvt. Ltd. He has deposed that on 20.10.2009 Vijay Gupta had given him sum of Rs 39.19 lacs and asked him to keep the same and hand over the payment to his person/ employee who would be coming in the evening. According to the witness, in the evening at about 6:306:45 PM the employees of Vijay Gupta namely Mahabir and Mittal came to him and he handed over the sum of Rs. 39.19 lacs to Mr. Mittal. Thereafter, he informed Vijay Gupta on telephone that he had handed over the amount to Mittal. According to him they kept the payment into thelas and took it from his house and his statement was recorded on the same day of the incident at night.
In his cross examination by Ld. defence counsel, the witness has deposed that he is having business dealing with Vijay since 78 years. According to him, Vijay Gupta is not related to him but his other director Sh. Kishan Basia is in his relation. He has deposed that prior to this incident, Vijay had never entrusted to him with any cash amount previously. He has further deposed that during the course of business dealing he makes payment on check and there was no occasion for him to except any cash amount or money form Vijay since he is the one who purchasing the material from Vijay. He has denied the suggestion that Vijay Gupta had not handed over any cash amount to be handed over to his employees. He is unable to tell State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 9 of 51 the reason why Vijay entrusted him with a heavy amount of Rs.39.19 lacs only for handing over the same to his employee when he himself was residing at Pitampura, Delhi and has voluntarily added that since Vijay was their principal from whom they used to make purchases, he did not question him. He also did not ask Vijay from where this amount had come. According to the witness, Mr. Mittal and Mr. Mahavir came to him in the evening at about 7:30 PM but he is unable to tell their mode of conveyance in which they had come i.e. whether it was a scooter or bike or a car. Witness has further deposed that he had informed Mr. Vijay regarding handing over of the amount on his mobile phone bearing No. 9811205115 at about 7 PM that he had handed over the amount to his employees. He has denied the suggestion that he had made no telephone call to Mr. Vijay as there was no occasion of doing so. He has further denied that he had given a false statement at the instance of Vijay and no such amount was either entrusted to him or handed over by him to his employee.
PW7 Vijay Pal Garg has deposed that he is doing the business of stainless steel which is under the name and style of Gee Espate Pvt. Ltd. with his corporate office at plot No. 28A, sector 19, Rohini, Delhi. According to him he had kept some amount of Rs.39.19 lacs with Sawar Mal his distributor. He has deposed that on 20.10.2009, he asked his employees Ramesh Mittal and Mahavir to collect the amount kept with Sawar Mal at his office at A48, Second State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 10 of 51 floor Wazirpur industrial area and thereafter come to his house. He has further deposed that at about 7 PM Sawar Mal gave him a telephone call and informed him that he had handed over the amount to Ramesh Mittal and Mahavir who were doing the work of cash collection and banking for him. According to the witness, at about 7:307:45 PM Ramesh Mittal and Mahavir came to his house and he heard an alarm/ hue and cry outside. He further deposed that when he came out of his house he saw that Mahavir and Ramesh Mittal were running after some boys. According to the witness, he is not very sure but he had seen three boys on motorcycle and two boys on scooter and then he suddenly saw that there was a firing from the side of these boys. He could not see the faces of these boys but he came to know that they had snatched the sum of Rs 39.19 lacs which Ramesh Mittal and Mahavir had brought from Sawar Mal. According to the witness, he had made a call to police after which police came and recorded his statement.
In his cross examination by Ld. defence counsel, the witness has deposed that he is having business dealing with Sawar Mal since last about 67 years. Rames. According to him, Ramesh Mittal is working with him for last four years and Mahavir is working with him for the last about one year prior to the incident. According to the witness, on previous occasion he had not entrusted any cash amount to Sawar Mal since he (Sawar Mal) used to State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 11 of 51 purchase material from him and make payment for the same. The witness has deposed that he had kept the amount of Rs 39.19 lacs with Sawar Mal since he had withdrawn this amount from the bank for use in his factory. However, since his factory was closed on account of Deewali he had kept the same with Sawar Mal. The witness has further deposed that he is not very sure but Deewali was one or two days prior to the incident. According to the witness he can show the withdrawal of the amount from the bank if given time but he had not brought the same to the court. Witness has admitted that he did not hand over the IO any documents showing the withdrawal of the amount from the bank and that he did not see the face of any of the boys and has voluntarily added that the scooter had already gone ahead and motorcycle was at the back. According to him the boys on the motorcycle had fired a shot but he could not see their faces. He has deposed that, at the time of the incident there were not many people but after the incident a large number of persons had gathered. He has denied the suggestion that no incident had taken place and he along with his employees had stage managed the incident.
PW8 Mahavir Saini has deposed that he is working at Shree Hans Steel situated at Wazirpur and prior to this he was working at Gee Espate Pvt. Ltd situated at sector 19 Rohini, Delhi and his duty was to collect cash and bank dealing. According to him State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 12 of 51 on 20.10.2009 he had gone to his office situated at A28, Sector 19, Rohini at about 9:30 AM as usual. He has deposed that at about 5:30 PM the owner of Sh. Vijay Pal Garg called him and Sh. Ramesh Mittal and asked them to bring the cash from the office of Sh. Sawar Mal situated at Wazirpur Industrial area. He has further deposed that he took his motorcycle whereas Sh. Ramesh Mittal took his scooter and reached at A48, where they came to know that cash would come after some time on which they went to another office at A52, Wazirpur but no cash was handed over to them there. Thereafter they came back at A48, i.e. at the office of Sh. Sawar Mal where one Vinod Kumar employee of Sh. Sawar Mal met them. According to the witness, Sh. Sawar Mal Goyal was also present in the office who handed over Rs 39.19 lacs to both of them which they kept in two bags. The witness has further deposed that he kept Rs 14.44 lacs in his bag whereas Sh. Ramesh Mittal kept the balance amount and they both left the office of Sh. Sawar Mal Goyal on their respective vehicles for the house of Sh. Vijay Pal Garg at TU - 70, Pitampura and stopped their respective vehicles. According to the witness, three persons came on their in a pulsor motorcycle and two persons came on scooter and stopped their vehicles. Witness has further deposed that, one of those five persons was having pistol and first they came to him with a pistol and put the pistol on him and snatched the bag. According to the witness, at the same time the remaining accused State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 13 of 51 persons pushed Sh. Ramesh Mittal as a result of which he (Ramesh Mittal) fell down and they started beating him and they removed the bag from his scooter on which they (victims) raised alarm and on hearing their hue and cry Sh. Vijay Pal came out from his house. Thereafter they both and Sh. Vijay Pal went towards the accused persons but they left on their vehicles along with money bags containing the cash and while escaping from the spot those persons also fired towards them (victims) as a result they got scared and stopped chasing them. According to the witness, thereafter, Sh. Vijay Pal made the call telephonic call to the police and police came to the spot and interrogated them when his statement was recorded by the IO which is Ex.PW8/A bearing my signature at point A. According to the witness, he had also gone to Tihar Jail to participate in Test Identification Parade where he could not identify the remaining accused persons whereas one accused had refused to participate in the Test Identification Parade. On 04.10.2010, he had gone to the police station to know the progress of the case and on that day he saw one person sitting in the police station and he had identified that person as the same person who had snatched the bags on the day of the incident on the point of pistol along with other four persons. The witness has correctly identified the accused Rajesh.
In his cross examination by Ld. defence counsel, the witness has deposed that he reached at the office of Sawar Mal Goyal State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 14 of 51 on motorcycle which is registered in his name. They reached at Wazirpur at about 5:30 PM. His duty was to collect the cash from the parties and dealing with banks and was having his mobile phone bearing No. 9313763026. According to him, Sh. Sawar Mal Goyal handed over the cash to him and Sh. Ramesh Mittal collectively but his signature was not taken by Sh. Sawar Mal Goyal on any document regarding receiving the cash. He is not aware of the reason why money was to be collected from Sh. Sawar Mal Goyal. He has deposed that they did not count the notes however they counted the bundles of cash and thereafter they left the office of Sh. Sawar Mal Goyal at about 7:30 PM. According to the witness he used to hand over the cash to Sh. Vijay Pal, as there was no other person and used to go almost daily to collect the cash on behalf of Sh. Vijay Pal. According to him, they left the office of Sh. Vijay Pal at about 5 PM and reached the house of Vijay Pal at 7:45 p.m. He has deposed that the accused before this court (Rajesh) had put the pistol on his chest and also that while the accused persons were running away from the spot one of them i.e. the present accused had fired. According to the witness, the son of Sh. Vijay Pal had also come out from his house and he also chased the boys along with them. He deposed that the accused persons had come from the side of Wazirpur towards Pitampura. He admits that the spot of incident is a thickly populated area. According to him the police came to the spot State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 15 of 51 after about 1520 minutes after the call was made, firstly PCR came and thereafter the local police arrived. He did not make any call to the police. His first statement was recorded in the police station. They had gone to the police station about 34 times whenever they were called. He admits that he did not sustain any injury. He had given the description of the boy who had snatched the money bag from him. When the witness was confronted with his statement Ex.PW8/A, the description is not found mentioned. He deposed that police had taken him to Daryaganj for preparing of the sketch. Witness has admitted that the sketch EX PW8/DX1 had been prepared at his instance of the assailant who had put the pistol on him and snatched the amount. He also admits that the sketch EX PW 8/DX1 did not tally with the profile of the accused Rajesh. The witness has deposed that whatever he could recollect and understand, the sketch was prepared on that basis. He has also deposed that he is not related with Sh. Vijay Pal Garg. According to him he had gone to Tihar Jail on three occasions for judicial TIP but the accused refused to participate in the Test Identification Parade. He has denied the suggestion that he has identified the accused after he had seen him at the police station. He has deposed that he was not told by the IO that the accused was the one who had committed the incident. According to him the accused was sitting opposite the reception and also 34 other boys were also with him and a police officer sitting State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 16 of 51 along with him. He has denied the suggestion that he had gone to the police station before the TIP proceeding and has voluntarily added that it was after the proceedings. He has denied that he was shown the photographs of the accused and also shown the accused and asked to identify them. The witness has further denied that no incident had taken place and the entire story is concocted. He has denied that they had stage managed the entire incident only to mislead the Govt. authorities.
Police Witnesses:
PW1 SI Matadin has proved the finger print proficient report prepared by Ct. Ramesh Chander in his presence which bears his signatures at point A. In his cross examination by Ld. defence counsel, the witness has deposed that they reached from police station Maurya Enclave at about 1045 p.m. and reached at the spot at about 11 p.m. He did not prepare the crime team report in this case, however, Ct. Ramesh Chander prepared the proficient report in his presence. He deposed that the IO was also present at the spot at that time and they remained at the spot upto 1145 p.m. According to him the DD entry regarding the departure and arrival in the office was made in the rojnamacha but he did not remember the number of either DD. He has denied the suggestion that he did not go to the spot, therefore, he did not prepare the crime team report. State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 17 of 51
PW2 HC Mahinder Singh has proved the photographs which are 18 in numbers Ex.PW2/A1 to Ex.PW2/A18. He has brought the CD of the said photograph which is Ex.PW 2/B. In his cross examination by Ld. defence counsel, the witness has deposed that he has experience as photographer of about three and a half years. According to him they reached at the spot at about 11 p.m. and left from police station Maurya Enclave but he does not remember the time. The reached at the spot on Govt. vehicle a Mini TATA belonging to crime team office. According to him the public persons were present at the spot on one side of the scene of crime. He has denied the suggestion that he did not go to the spot or that he did not take photographs at the scene of crime.
PW3 ASI Mathias Baxla has proved the entry No. 1617 dated 05.09.2010 which is Ex.PW3/A and receipt of FSL which is Ex.PW3/B. In his cross examination by Ld. defence counsel, the witness has admitted that the entry does not bear any signature of SI Bhushan Azad. He has denied the suggestion that the entry has been manipulated and has been written ante datedly or that record of the entry has not been properly maintained.
PW4 Ct. Ramesh Chand has proved the finger print proficient report prepared by him which is Ex.PW1/A bearing my signatures at point A. In his cross examination by Ld. defence State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 18 of 51 counsel, the witness has deposed that he reached the spot at about 11 PM and at that time SI Naresh Kumar along with his staff and public persons were present at the scene of crime. He lifted two finger prints from the helmet and one from the handle of the scooter. He admits that at the place where the scooter and the helmet were kept public persons were present. He has further admits that the scooter and helmet were not protected and there are chances that public might have touched the scooter and the helmet before he lifted the chance prints. According to him he had send the finger print report to finger print bureau Malviya Nagar. He has denied that he did not lift any chance prints from the spot or that the report Ex.PW1/A had been prepared at the instance of IO.
PW9 Ct. Amarjeet has deposed that on 20.10.09 he was posted at police station Maurya Enclave and on that day on the receipt of DD No. 25 A he alongwith SI Naresh reached at TU 70 Pitam Pura and reached near main gate where one Mahavir Saini met them who has given his statement vide Ex. PW8/A to SI Naresh after which SI Naresh prepared ruqqa and handed over the same to him. He has deposed that he got the case registered and came back to the spot with a copy of FIR and original ruqqa and same were handed over to the IO.
In his cross examination the witness has deposed that the rukka was handed over to him by SI Naresh at about 1030 p.m. and State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 19 of 51 he went to the police station in a bike. He had returned from the police station alongwith the original rukka and the copy of FIR and returned to the spot at about 1130 p.m. He has denied the suggestion that he had not taken the rukka for registration of FIR as deposed.
PW10 HC Rohtash has deposed that on 20.10.09 he was posted at police station Maurya Enclave as duty officer from 4 p.m. to 12 night. On that day at about 1040 p.m. const. Amarjeet brought the ruqqa sent by SI Naresh and on the basis of which he recorded FIR which is Ex.PW10/A which bears his signature at point A. He made endorsement on the rukka which is Ex. PW10/B which also bears his signature at point A. Witness has not been cross examined on behalf of the accused despite opportunity.
PW11 SI Naresh Kumar has deposed that on 20.10.09 he was posted at police station Maurya Enclave and on that day on the receipt of DD No. 25 A he alongwith const. Amarjeet reached at TU 70, Pitam Pura where one Mahavir Saini met him and gave his statement which is Ex.PW8/A and thereafter prepared ruqqa on the statement of Mahavir which is Ex.PW11/A got the case registered through Ct. Amarjeet. He has deposed that Inspector Yash Pal Singh also came to the spot who prepared the site plan in his presence which is Ex.PW11/B. According to him, one helmet was lifted from the road in front of main gate which was taken into possession vide State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 20 of 51 seizure memo Ex.PW11/C. The witness has correctly identified the helmet having brand name LOEAL as the same as lifted from the spot which is Ex. P1.
In his cross examination by Ld. defence counsel, the witness has deposed that he reached at the spot at about 8 p.m. He admits that the place of incident is a public thorough fare and there is movement of public persons and residents and many persons had collected at the spot. He has also deposed that he made preliminary enquires from the complainant before preparing ruqqa and also asked the complainant about the details of the assailants including the clothes they were wearing and has voluntarily added that the complainant was in a state of shock and could not tell. Witness has denied the suggestion that he did not make any preliminary enquiry from the complainant and he had recorded the ruqqa of his own. According to him the crime team officials had come to the spot in his presence. He has denied the suggestion that the entire proceedings were conducted while sitting at the police station later on and the same manipulated at the instance of the investigating officer.
PW12 Ct. Amar Nath has deposed that on 23.09.2010 he was posted at police station Maurya Enclave and on that day he alongwith inspector Yash Pal Singh were busy in the investigation of this case. During the investigation, he and inspector Yash Pal Singh came to the court of Sh. Niraj Gaur, MM Rohini where he moved an State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 21 of 51 application seeking interrogation of accused Rajesh @ Prem @ Pawa which was allowed by Ld. M.M. The accused Rajesh @ Prem @ Pawa was interrogated by the IO and he made disclosure statement which is Ex.PW12/A bearing his signature at point A. According to the accused, the accused was also formally arrested vide memo Ex.PW12/B bearing his signature at point A. In his cross examination by Ld. defence counsel the witness has deposed that they had reached the court of Ld. M.M. at about 1150 a.m. He admits that large number of public persons were also present in the court and outside the court. According to him the IO interrogated the accused outside the court by sitting on a bench placed in the corridor. He has denied the suggestion that no public person was joined by the IO. He has also denied that no disclosure statement was made by the accused and the IO had recorded the same of his own.
PW13 SI Raj Pal has deposed that on 02.10.10 he was posted at police station Maurya Enclave and on that day he alongwith Inspector Ram Sunder were busy in the investigation of this case. He deposed that the accused Sunny @ Rakesh S/o Jaswant Singh was produced before Ld. Duty Magistrate Sh. Bhupinder Singh and after taking permission from Ld. M.M. he was interrogated and his disclosure statement was recorded by the IO which is Ex.PW13/A. According to the witness thereafter the accused was arrested in this State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 22 of 51 case vide memo Ex.PW13/B. The witness has deposed that during this proceeding the accused Sunny remained in muffled face. According to the witness, at the same time the coaccused Rajesh S/o Mange Ram was also produced before Ld. M.M and he was also interrogated and IO inspector Ram Sunder took his police remand for two days and he was taken to the police station. The witness has correctly identified the accused Rajesh @ Prem @ Pawa S/o Mange Ram in the court.
In his cross examination by Ld. defence counsel, the witness has deposed that he is not aware if the complainant of the case also accompanied the IO when they came to the court. He has denied the suggestion that the complainant had come with him to the court and was shown the accused in the court or that he had not accompanied with the IO to the court as deposed or that he had not joined the investigation as deposed .
PW14 SI Bhushan Azad has deposed that on 5.9.2010 he was along with HC Suresh, HC Rajbir and other staff were busy in case FIR No. 191/10, under Section 394/397, Police Station Patel Nagar in which three accused namely Ajay @ Payyu, Rajesh @ Prem @ Pawa and Rahis @ Ganja were arrested. According to the witness, he recored their disclosure statement vide Ex.PW14/A (Rajesh), Ex.PW14/B (Rahis @ Ganja) and ExPW14/C (Ajay @ Payyu). According to the witness on 8.9.2010 he along with HC Dharambir State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 23 of 51 Singh, HC Anil Kumar and other staff were busy in the investigations of the above said case when the accused Sunny @ Rakesh was arrested. He has deposed that the information regarding the arrest of the accused persons were given to the police station Maurya Nagar. The witness has identified the accused Rajesh @ Prem in the court.
In his cross examination by Ld. defence counsel, the witness has deposed that at the time of arrest of accused in the office, there was no public person. According to him at the time of interrogation of the accused Rajesh, no public witness was joined. He has denied the suggestion that accused did not make any disclosure statement. He admits that there is no recovery pertaining to the present accused pursuant to his disclosure statement.
PW15 Inspector Ram Sunder has deposed that on 02.10.2010 he was posted as SHO Maurya Enclave and on that day he was handed over the file for further investigations of the present case. According to him on that day two accused Rajesh and Sunny who were already in judicial custody were to be produced before the Ld. MM. He appeared before the Ld. Duty MM and with the permission of the court, he interrogated accused Rakesh @ Sunny and thereafter arrested him. According to him, he had come from the judicial custody in a muffled face and he sought a two days JC remand for the accused Rakesh @ Sunny in order to get his judicial State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 24 of 51 TIP conducted and also took two days police custody remand in respect of Rajesh who was already in JC. He has deposed that during the police custody remand the accused Rajesh pointed out the place of occurrence and he prepared the pointing out memo which is Ex.
15/A. He has further deposed that during this period the victims namely Ramesh Mittal and Mahavir Saini also came to the police station and identified Rajesh as one of the assailants. He recorded their statements and also the statements of police witnesses who has participated in the investigations.
In his cross examination by Ld. defence counsel, the witness has deposed that the complainant/victim had come to the police station in the evening (afternoon). According to him there were no public persons in the police station at that time and he did not secure the presence of any other public witness from out side the police station at the time the victims identified the accused Rajesh in the police station. He has denied the suggestion that the victims did not identify the accused in the police station rather he had called them and shown them the accused and wrongly recorded their statement of identification.
PW16 Inspector Yashpal Singh has deposed that on 20.10.2009 he was posted at police staiton Maurya Enclave as Inspector investigations. On that day on the receipt of DD No. 25A SI Naresh Kumar along with staff reached at TU70, Pitampura, State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 25 of 51 Delhi. On the receipt of information regarding the incident, he also reached there where SI Naresh Kumar had already send the rukka to the police station for getting the case registered. On the directions of senior officers, the investigations was handed over to him after which he inspected the spot and prepared the site plan which is Ex.PW11/B. According to him the crime team had already reached the spot and inspected the spot and prepared its detailed report which is Ex.PW1/A and the photographer took the photographs at the spot. He thereafter took the helmet into possession from the spot vide seizure memo Ex.PW11/C and made efforts to trace the accused persons but they could not be traced. On 12.09.2010 Insp Attar Singh of special cell had given the information that four accused persons namely accused Ajay, Rajesh, Rahis and Sunny have been arrested by his raiding party in their case and they had made a disclosure statement with regard to their involvement in the present case. According to him he went to the office of special cell, northern range, Sector 6 Rohini and met SI Bhushan Azad. He handed over the photocopies of the disclosure statements of the aforesaid accused persons which are Ex.PW14/A to Ex.PW14/B and Ex.PW14/D and also other documents and memos. He thereafter recorded the statement of SI Bhushan Azad and also moved an application before Ld. MM on which accused namely Rajesh @Pahua was produced before Ld. MM pursuant to the production warrants. According to State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 26 of 51 the witness, he carried out the interrogation of accused Rajesh after taking permission from Ld. MM and also arrested him thereafter vide memo Ex.PW12/B and personally searched him vide memo Ex.PW16/A. According to him the accused also made his disclosure statement regarding his involvement in the present case vide memo Ex.PW12/A. He has further deposed that on the next day the judicial TIP of the accused Rajesh was got conducted but he refused to participate the same. Witness has deposed that on 28.09.2010 the co accused Ajay was formally arrested as he was produced in pursuant to the production warrants and his arrest memo is Ex.PW16/C and his personal search was conducted vide Ex.PW16/D. He deposed that the accused was also interrogated and his disclosure statement was also recorded which is Ex.PW16/E. He again joined the investigations on 16.10.2010 and prepared the charge sheet against the accused Rajesh. He has correctly identified the accused Rajesh who is present in the court.
In his cross examination by Ld. defence counsel, the witness has denied that the accused Rajesh @ Prem had been produced in the court of Ld. MM in an unmuffled face on 02.10.2010 and has voluntarily added that he was muffled. He admits that Rajesh is involved in other cases and had been appearing in Rohini court complex. He has denied that he had received the dozier and other documents along with the photographs of the accused and has State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 27 of 51 voluntarily added that he has only received the documents but not the dozier and the photographs.
Statement of Accused and Defence Evidence:
After completing the prosecution evidence, statement of accused was recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material was put to him which he has denied. However, he has not examined any witness in defence. According to the accused, the witness Ramesh Chander had not identified him and it was the police officials who pointed him out to Ramesh Chander. He has stated that Ramesh Chander had refused to identify him and told the police that he (accused) was not one of the assailants on which the police officials told Ramesh Chander that he had to identify him (accused) after which Ramesh Chander had identified him in the court. The accused has further stated that previously also when he was kept in the custody of Special Cell Northern Range and police officials of Police Station Patel Nagar, he was shown to various public persons after being beaten up mercilessly by the police officials. According to him, he did not make any disclosure statement and his signatures were obtained on various blank papers and forms which were later on converted into various memos including disclosure statement. He has stated that he was not even present at the spot and have no role to State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 28 of 51 play in the alleged incident and has been falsely implicated by the police after lifting from his residence.
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also considered the testimonies of various witnesses examined by the prosecution and have gone through the written memorandum of arguments filed by the parties.
Identity of the Accused:
The case of the prosecution is that the present accused Rajesh @ Prem @ Pawa is one of the five persons who had snatched the bags containing currency notes Rs.39.19 lacs from the possession of Mahavir Saini and Ramesh Chander Mittal on the point of pistol and ran away from the spot. PW5 Ramesh Chander Mittal who is one of the eye witnesses had identified the accused Rajesh as the person who had snatched the bags at the point of pistol from him and Mahavir Saini. PW8 Mahavir Saini has also correctly identified the present accused in the court as the person who had snatched the bags with cash along with four persons. Accused Rajesh @ Pawa had refused to participate in the Judicial Test Identification Parade on the pretext that he had already been shown to the witnesses, which allegation he has not been able to substantiate and hence an adverse State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 29 of 51 inference is taken against him for the same. Ld. defence counsel has submitted that the sketches of the assailants had also been prepared after the incident specifically of the boy who had pointed the pistol and snatched the bags containing cash amount which sketch Ex.PW8/DX1 does not resemble the present accused and therefore under these circumstances it is evident that the witnesses have deposed at the instance of the investigating officer and their testimonies in this regard cannot be believed. I have considered the submissions made by Ld. defence counsel and I may observe that the sketches had been prepared on the basis of the vague recollection of the assailants by the victims who at the time of the incident would have been under trauma and under such circumstances the possibility of accuracy or the sketch so prepared actually resembling the accused is remote. However, once the victims have actually identified the assailants, there is no reason to disbelieve them, more so, as there is no history of any kind of animosity of the alleged victims / witnesses with the accused who would have any reason to falsely implicate him. Therefore there is no reason to discard their testimony in this regard. In view of the above, I hold that identity of the accused Rajesh @ Prem @ Pawa as one of the assailants / persons who had committed the robbery of Rs.39.19 lacs on the point of pistol upon the victim Mahavir Saini and Ramesh Chander Mittal, stands established.
State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 30 of 51 Refusal by accused to participate in Judicial Test Identification Parade:
The case of the prosecution is that after the arrest of the present accused, Judicial Test Identification Parade had been fixed by the Ld. MM but the accused had refused to participate in the same for which an adverse inference is liable to be drawn against him. Ld. Defence Counsel has submitted that since the accused had already been shown to the witnesses therefore under these circumstances the he did not participate in the Judicial Test Identification Parade. I may observe that the police witnesses have specifically denied the suggestion of having produced the accused in unmuffled face in the court and also that they had shown the accused to the witnesses prior to the identification.
In fact, there is a specific endorsement in the handwriting of Ld. MM on the application for Judicial Remand dated 28.9.2010 showing that the accused was produced in the court in muffled face. The identification of the accused Rajesh @ Pawa by the victims / public witnesses in the police station when he was sitting there was after the refusal of the accused Rajesh @ Pawa to participate in the Judicial Test Identification Parade and therefore there is no reason to discard their testimonies in this regard.
State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 31 of 51 Role Attributed to the Accused:
The case of the prosecution is that on 20.10.2009 PW7 Vijay Pal Garg who is the owner of the firm M/s Gee Espate Pvt. Ltd., had called his employee Ramesh Mittal (PW5) and Mahavir Saini (PW8) to collect the amount kept with Sawar Mal at his office at A48, 2nd Floor, Wazirpur Industrial Area, on which both Ramesh Mittal and Mahavir Saini went to the aforesaid place where they met Sawar Mal who handed over them cash amount of Rs.39.19 lacs which they kept in two bags. In one bag they kept Rs.24.75 lacs which was kept by Ramesh Chander Mittal whereas in the other bag containing Rs.14.44 lacs was kept with Mahavir Saini and they both left the office of Sawar Mal in their respective vehicles and when reached near the gate of the house of Vijay Pal at TU70, Pitam Pura and stopped their vehicles, at the same time one pulsar motorcycle came there on which three boys were riding and another scooter also came on which two boys were riding and out of those five boys, two persons snatched the bag from the motorcycle of Mahavir Saini on the point of pistol and one of the remaining three boys pushed Ramesh Chander Mittal on which he fell down on the ground and all the three assailants started beating him with kicks and fist blows and removed the bag containing cash from the scooter of Ramesh Chander Mittal and ran away on which both Ramesh hander Mittal and Mahavir Saini raised an alarm and on hearing the alarm Vijay State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 32 of 51 Pal came out of the house and they (Mahavir, Ramesh Mittal and Vijay Pal) started chasing the assailants but the assailants while running from the spot, one of them fired shots towards them (victims) and all the assailants succeeded in running away. The relevant portion of the testimony of PW5 Ramesh Chander Mittal is as under:
".... On 20.10.09 Sh. Vijay Pal called me and Mahavir Saini and asked me to bring the cash from the office of Sh. Sanwar Mal Goel which is situated at Wazirpur Industrial Area. I left on my scooter whereas Sh. Mahavir Saini left on his motor cycle. Firstly we reached in the office of Sh. Sanwer Mal Goel at A48, Wazirpur Industrial Area. One Vinod met us in the office who asked us to wait as the cash had to come after sometime. Thereafter, we both left the office at A48 and reached at another office which is situated at A52, Wazirpur but no cash was given to us there also. We left the said office also and thereafter we came again at A48. At that time Sh. Sanwar Mal Goel met us. He asked for the cash as directed by Sh. Vijay Pal. Sh. Sanwar Mal goel handed over Rs.39.19 Lacs which we kept in two bags. I kept the bag in which we kept Rs.24.75 Lacs State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 33 of 51 and Sh. Mahavir Saini took the bag in which we kept Rs.14.44 Lacs. We left the office of Sh. Sanwar Mal on our respective vehicles for the house of Sh. Vijay Pal. When we reached near the gate of house of Sh. Vijay Pal in between 745 or 8 p.m. i.e. at TU70, Pitam Pura and we stopped our vehicles. At the same time one Pulsar motor cycle came there on which three persons came and two boys on the scooter came there. Out of those five persons two persons snatched the bag from the motor cycle of Sh. Mahavir Saini on the point of pistol and one of remaining three persons pushed me as a result of which I fell down on the ground. All the three persons from those five persons started beating me with kicks and fist blows and removed the bag from my scooter. We both raised alarm. On hearing our cry Sh. Vijay Pal came out of his house. We both and Sh. Vijay Pal tried to chase them but one of them who was having pistol fired towards us. All the five persons ran away from the spot on both the motor cycle and scooter alongwith both the bags containing Rs.39.19 Lacs. Due to fire we State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 34 of 51 stopped chasing them, due to which they succeeded in running away with the aforesaid cash. Sh. Vijay Pal made the phone call to the police. ..."
Similarly, in his cross examination, the witness Ramesh Chander Mittal has stood his grounds. In fact, he has in his cross examination specifically explained that during the incident when he was being pushed by the assailants, the helmet of one of the assailants had fallen down who was in the process of snatching the money bag and it is for this reason that he could identify him. He has specifically stated that when he had gone to the police station he had seen the accused Rajesh @ Pawa sitting outside the room of the SHO along with two / three boys when he identified the present accused Rajesh as one of persons who had assaulted him. He has denied the suggestion that he was shown the photographs of the accused and hence he could identify the accused.
Further, the relevant portion of the testimony of PW8 Mahavir Saini is as under.
"I am working at Shree Hans Steel situated at Wazirpur. Prior to this I was working at Gee Espate Pvt. Ltd situated at sector 19 Rohini, Delhi. My duty was to collect cash and bank dealing. On 20.10.2009 I had gone to my office situated at A28, Sector 19, Rohini at about 9:30 AM as usual. At about 5:30 PM State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 35 of 51 the owner of Sh. Vijay Pal Garg called me and Sh. Ramesh Mittal and asked us to bring the cash from the office of Sh. Sawar Mal situated at Wazirpur Industrial area. I took my motorcycle whereas Sh. Ramesh Mittal took his scooter and reached at A48, where we came to know that cash will come after some time. Thereafter we went to another office at A52, Wazirpur but no cash was handed over to us there. Thereafter we came back at A48, i.e. at the office of Sh. Sawar Mal. One Vinod Kumar employee of Sh. Sawar Mal met us. Sh. Sawar Mal Goyal was also present in the office who handed over Rs 39.19 lacs to both of us which we kept in two bags. I kept Rs 14.44 lacs in my bag whereas Sh. Ramesh Mittal kept the balance amount. We left the office of Sh. Sawar Mal Goyal on our respective vehicles for the house of Sh. Vijay Pal Garg at TU - 70, Pitampura and stopped our respective vehicles. Three persons came to pulsor motorcycle and two persons came on scooter and stopped their vehicles. One of those five persons was having pistol. Firstly they came to me with a pistol and put the pistol on me and snatched the bag. At the same time the remaining accused State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 36 of 51 persons pushed Sh. Ramesh Mittal as a result he fell down and they started beating him. They removed the bag from his scooter. We both raised alarm. On hearing our hue and cry Sh. Vijay Pal came out from his house. We both and Sh. Vijay Pal went towards the accused persons but they left on their vehicles along with our both bags containing the cash. While they were escaping from the spot the person who snatched the bag from me fired towards us as a result we scared and we stopped chasing them. Sh. Vijay Pal made the call telephonic call to the police." He has further deposed as under :
"... On 04.10.2010 I had gone to the police station to know the progress of the case. On that day I saw one person sitting in the police station. I had identified that person as the same person who had snatched the bags on the day of the incident on the point of pistol along with other four persons. My statement was again recorded. The can identify the accused today.
State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 37 of 51
At this stage the witness has seen towards the accused and has correctly identified the accused Rajesh who is present in the court today in judicial custody. .."
In his crossexamination, the witness PW8 He has stood of his grounds and has denied the suggestion that he has identified the accused after the accused had been shown to him in the police station. I may observe that PW6 Sawar Mal Goyal who is into regular business dealings with PW7 Vijay Pal Garg, has also deposed before the court and has proved having handed over the cash amount Rs.39.19 lacs to Ramesh Chander Mittal and Mahavir Saini. Similarly, PW7 Vijay Pal Garg has also corroborated the testimonies of PW5 Ramesh Mittal and PW8 Mahavir Saini to the extent that on the date of incident at about 7:30 /7:45 PM Ramesh Mittal and Mahavir Saini came in front of his house and he heard an hue and cry and when he (Vijay Pal Garg) came out of the house he saw that Mahavir Saini and Ramesh Mittal were running after some boys who were vehicles (three in motorcycle and two in scooter) and he suddenly saw that there was firing from the side of those boys and thereafter he came to know that those boys were running after snatching Rs.39.19 lacs from Ramesh Mittal and Mahavir Jain which amount they had brought from Sawar Mal Goyel. I may further observe that the entire sequence stands proved and established. Ld. State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 38 of 51 Defence Counsel has tried to demolish the defence of PW7 Vijay Pal Garg by exhaustively crossexamining the witness on the aspect of obtaining the cash amount from Sawar Mal but nothing much has come out of the same. The source from where the cash belonging to Vijay Pal Garg had come and why he had kept the same with Sawar Mal Goyel is irrelevant for our purpose, once Sawar Mal Goel (PW6) has appeared in the court and proved the handing over of the cash amount to Ramesh Mittal (PW5) and Mahavir Saini (PW8). I, therefore hold that the prosecution has conclusively established the aspect that it was the accused Rajesh @ Pawa who was armed with fire arm / pistol and had snatched the bags containing Rs.24.75 lacs from Ramesh Mittal (PW5) and Rs.14.44 lacs from Mahavir Saini (PW8) and while running from the spot had fired towards the victims in order to prevent them in chasing him.
Arrest of the accused:
There is no dispute on the aspect that the accused was arrested by PW14 SI Bhushan Azad in case FIR No. 191/10, under Section 394/397 Police Station Patel Nagar wherein during interrogation the present accused Rajesh @ Prem disclosed his involvement in this case vide disclosure statement Ex.PW14/A pursuant to which PW16 Inspector Yaspal Singh formally arrested the present accused in this case in the court after summoning him State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 39 of 51 from judicial custody by of production warrants. This being the background, I hold that the arrest of the accused Rajesh @ Prem @ Pawa stands proved in accordance with law.
FINAL CONCLUSION:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 40 of 51 conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the above principles of law to the facts of present case, it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officer. It has been conclusively established that PW6 Sawar Mal Goyal and PW7 Vijay Pal Garg were having interse business transactions and Vijay Pal Garg had kept certain cash amount with Sawar Mal Goyal. It further stands established that on 20.10.2009 the employee of Vijay Pal Garg namely Ramesh Mittal (PW5) and Mahavir Saini (PW8) had gone to Sawar Mal Goyal and were handed over Rs.39.19 lacs which they were bringing back to the residence of Vijay Pal Garg in their respective vehicles (two wheeler scooters). It is further proved that when they (Ramesh Mittal and Mahavir Saini) reached in front of the house of Vijay Pal Garg i.e. TU70, Pitam Pura, the accused Rajesh @ Pawa along with his four associates came on motorcycle and scooters (three on motorcycle and two on scooter) outside the house of Vijay Pal Garg and snatched the bag from Ramesh Chand Mittal containing Rs.24.75 lacs and another bag containing Rs.14.44 lacs from Mahavir Saini (total Rs.39.19 lacs). It State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 41 of 51 has been further conclusively proved and established that Ramesh Mittal and Mahavir Saini tried to resist in which process the helmet of the accused Rajesh @ Pawa fell down and while running away the accused Rajesh @ Pawa fired towards the victims on which they got scared and stopped chasing them. It is further proved that both Ramesh Chand Mittal (PW5) and Mahavir Saini (PW8) have conclusively identified the accused Rajesh @ Pawa as the boy who had fired at them and had also snatched the bag from Mahavir Saini containing Rs.14.44 lacs.
The prosecution having proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
In view of the above, I hereby hold that the prosecution has been able to successfully prove the allegations under Section State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 42 of 51 392/397 Indian Penal Code against the accused Rajesh @ Prem @ Pawa. Therefore, I, hereby hold the accused Rajesh @ Prem @ Pawa guilty for the offence under Section 392 read with Section 397 Indian Penal Code and convict him accordingly.
Be listed for arguments on sentence on 23.11.2011.
Announced in the open court (Dr. KAMINI LAU) Dated: 17.11.2011 ASJ (NW)II: ROHINI State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 43 of 51 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 04/2011 Unique Case ID: 02404R0338382010 State Vs. Rajesh @ Prem @ Pawa S/o Sh. Mange Ram R/o DBlock, Shardhanand Colony, Bhalaswa Dairy, Dehli. (Convicted) FIR No. : 535/2009 Under Section : 395/397 Indian Penal Code. Police Station : Maurya Enclave Date of Conviction : 17.11.2011 Arguments heard on : 23.11.2011 Date of sentence: 28.11.2011 APPEARANCE: Present: Sh. Taufique Ahmed, Addl. Public Prosecutor for the State.
Convict Rajesh @ Prem @ Pawa in Judicial Custody with Sh. Aseem Bhardwaj, Advocate / Amicus Curiae. State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 44 of 51 ORDER ON SENTENCE:
Vide a detailed judgment dated 17.11.2011 the accused Rajesh @ Prem @ Pawa has been held guilty for the offence under Section 392/397 Indian Penal Code.
The case of the prosecution is that on 20.10.2009 the employee of Vijay Pal Garg namely Ramesh Mittal (PW5) and Mahavir Saini (PW8) had gone to Sawar Mal Goyal and were handed over Rs.39.19 lacs which they were bringing back to the residence of Vijay Pal Garg in their respective vehicles (two wheeler scooters). At about 7.50 PM when they (Ramesh Mittal and Mahavir Saini) reached in front of the house of Vijay Pal Garg i.e. TU70, Pitam Pura the accused Rajesh @ Pawa along with his four associates came on motorcycle and scooters (three on motorcycle and two on scooter) outside the house of Vijay Pal Garg and snatched the bag from Ramesh Chand Mittal containing Rs.24.75 lacs and another bag containing Rs.14.44 lacs from Mahavir Saini (total Rs.39.19 lacs). Ramesh Mittal and Mahavir Saini tried to resist in which process the helmet of the accused Rajesh @ Pawa fell down and while running away the accused Rajesh @ Pawa fired towards the victims on which they got scared and stopped chasing them.
Both Ramesh Chand Mittal and Mahavir Saini have appeared in the Court and have identified the accused Rajesh @ State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 45 of 51 Pawa as the boy who had fired at them and had also snatched the bag from Mahavir Saini containing Rs.14.44 lacs and whose associates had snatched the bag containing Rs.24.75 lacs from Ramesh Chand Mittal (total Rs.39.19 lacs). On the basis of the testimonies of the various witnesses examined by the prosecution, particularly the complainant/ victim Ramesh Mittal (PW5) and Mahavir Saini (PW8), vide a detailed judgment dated 17.11.2011 the accused Rajesh @ Prem @ Pawa has been held guilty for the offence Section 392/397 Indian Penal Code.
I have heard the arguments on the point of sentence. The convict Rajesh @ Pawa is a young boy aged 22 years, unmarried, having a family comprising of widow mother, one sister and brother. He is totally illiterate and is a driver by profession. He has remained in judicial custody for a period of one year two month and five days. He is involved in the following criminal cases:
1. FIR No. 243/11 under Section 379/411 IPC, PS Rani Bagh
2. FIR No. 250/10 under Section 394/397/304/34 IPC, PS Rani Bagh
3. FIR No. 328/10 under Section 395/397 IPC, PS Saraswati Vihar.
4. FIR No. 192/10 under Section 380/34 IPC, PS Adarsh Nagar
5. FIR No. 153/10 under Section 25/54/59 Arms Act, PS Dabri
6. FIR No. 192/10 under Section 379/411 IPC, PS Narela State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 46 of 51
7. FIR No. 270/10 under Section 392/397/34 IPC, PS Keshav Puram.
8. FIR No. 535/10 under Section 395/397 IPC, PS Maurya Enclave
9. FIR No. 191/10 under Section 307 / 185 / 120B /332 /395/ 397/398 / 402 IPC, PS Patel Nagar
10. FIR No. 254/10 under Section 395/397 IPC, PS S.P. Badali
11. FIR No. 96/10 under Section 392/395 IPC, PS Maya Puri
12. FIR No. 143/09 under Section 393/394/302/ 34 IPC and 25/54/49 Arms Act PS Bara Hindu Rao
13. FIR No. 52/10 under Section 392/397/34 IPC, PS Najafgarh
14. FIR No. 72/10 under Section 186/353/307 IPC, PS Keshav Puram.
15. FIR No. 163/10 under Section 302/34 IPC, PS Binda Pur.
16. FIR No. 163/10 under Section 382/34 IPC, PS S. P. Badali
17. FIR No. 08/10 under Section 392/394/397/34 IPC, PS Kirti Nagar
18. FIR No. 184/10 under Section 382/34 IPC, PS North Rohini.
19. FIR No. 248/10 under Section 38234 IPC, PS South Rohini
20. FIR No. 24/10 under Section 379/34 IPC, PS Dhaula Kuan
21. FIR No. 230/10 under Section 392/34 IPC, PS Ashok Vihar
22. FIR No. 40/10 under Section 392/34 IPC, PS Adarsh Nagar State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 47 of 51 Ld. Amicus Curiae for the convict has argued that the convict is young boy and at the time of the incident he was in his early twenties. He submits that the convict is only earning member in the family and any harsh view would be detrimental to the life of the convict and his family members as well. It is prayed that a lenient view be taken against the convict keeping in his family background.
On the other hand, the Ld. Addl. PP for the State has argued that the convict Rajesh @ Prem is a desperado and is involved in as many as 22 cases. He has argued that the gang of which convict Rajesh @ Prem is a member, is so desperate that public persons are afraid to depose against them in the Court. He therefore prays that keeping in view the aforesaid, a strict punishment be awarded to him.
I have considered the rival contentions and I may observe that in the recent past Delhi has experienced a spurt and rise in the incidents of snatching, robbery, dacoity, murder and other kinds of crime. The report of National Crime Records Bureau in the year 2010 alone, a total number of 51,292 cases were registered in Delhi out of which 507 cases were of rape; 599 cases were of looting/ robbery; 14,966 cases were of vehicular theft; 3,208 cases were of kidnapping & abduction; 1502 cases were of burglary and 565 cases were of murder. The deteriorating law and order problem in the Capital of the Country is a matter of serious concern and immediate State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 48 of 51 steps are required to be taken at all levels for ensuring security and safety of the citizens. Under these circumstances the courts are required to find answers to the new challenges facing the society and to mould the sentencing system to meet these challenges. The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should be conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of the rime and responding to the society's cry for justice against the criminal. (Ref. Rajiv vs State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is desirability to keep the offender out of circulation.
The victims Ramesh Chand Mittal and Mahavir Saini have identified the accused Rajesh @ Prem @ Pawa as the boy who had fired at them and had also snatched the bag from Mahavir Saini containing Rs.14.44 lacs. There is no previous history of animosity between the convict and the victim and the sole intent was monetary gain. It is, therefore, the duty of this court to award a sentence having regard to the nature of the offence and the manner in which it was executed or committed. (Ref: Sevaka Perumal Etc. vs State of Tamil Nadu reported in AIR 1991 SC 1463).
The convict Rajesh @ Prem @ Pawa is a desperado State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 49 of 51 having as many as 22 cases against him, all pertaining to theft, robbery and dacoties. The manner in which the convict had used dangerous weapon (pistol) upon the victims shows that he has no worth for human life and does not hesitate to take the life of another in case of any resistance. Therefore, under these circumstances, the convict does not deserve any mercy.
Keeping in view the previous criminal records of the convict Rajesh @ Prem @ Pawa I hold that undue sympathy shown to the convict to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society. I, therefore, sentence the convict Rajesh @ Prem @ Pawa to Rigorous Imprisonment for a period of Ten Years and fine to the tune of Rs.10,000/ for the offence under Section 392 read with Section 397 Indian Penal Code. In default of payment of fine the convict shall undergo a Simple Imprisonment for a period of one month.
Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him as per rules. The convict is already in judicial custody. He is sent to judicial custody for serving the remaining period of sentence.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 50 of 51 cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of costs and another be attached with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 28.11.2011 ASJ (NW)II: ROHINI
State Vs. Rajesh @ Prem @ Pawa, FIR No. 535/09 PS Maurya Enclave Page 51 of 51