Delhi District Court
State vs . on 3 September, 2014
FIR No.23/11
IN THE COURT OF SH.PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
FIR No. : 23/11
Under Section : 395/397/412 IPC
Police Station : M.S. Park
Sessions Case No : 82/14
Unique I.D. No. : 02402R0184172011
In the matter of :
STATE
Vs.
1. Jahangir Ekka,
S/o. Sh. Abdul Hakim,
R/o. H.No.D-3/402, Nand Nagri, Delhi.
Also
R/o.Village-Modelganj, PS Badarhaat,
District-Khulna Bangladesh.
2. Md. Karim @ Rahul,
S/o Sh. Abdul Kadir,
R/o. H.No.A-2/158, Nand Nagri, Delhi.
Also
R/o.Village-Modelganj, PS Badarhaat,
District-Khulna Bangladesh.
3. Jagdish @ Lachhu,
S/o. Sh. Binu Dass,
R/o. Vill : Sakara, PS : Garhpura,
District : Begusarai, Bihar.
Date of Institution : 16.06.2011
Date of Committal : 20.07.2011
Date of receiving in this Court : 07.02.2014
Date of reserving judgment : 14.08.2014
Date of pronouncement : 03.09.2014
Decision : All are acquitted
Page no. 1 of 20
(Pulastya Pramachala)
Addl. Sessions Judge (Shahdara)
Karkardooma Courts / Delhi
FIR No.23/11
JUDGMENT
Case set up by the prosecution :-
1. On 13.02.2011, on the receipt of information vide DD No.12-A, ASI Ved Prakash and Ct. Om Prakash reached the spot i.e. H.No.B-122, 100 foota road, Hardevpuri, Delhi, where complainant Sh. Ramesh Chand Sharma met them and ASI Ved Prakash recorded the statement of complainant, which is to the effect that he was present in the office situated in his house at B-122, Hardev Puri, Shahdara. At about 08:00 PM, two boys came to his office and asked for an address and by the time he could say anything, one of them took out the pistol and another took out the knife and pointed the same on him. They asked him to take them inside the house and when they were going towards inner part of his house, two more boys joined them. They were also having a pistol and knife. When they were climbing the stairs, his nephew namely Anurag Sharma was coming down stairs, who was also overpowered by those boys and thereafter, they took them to the residential part of his house. His wife along with his children namely Ashish, Dimple and Ronit were present in the house. All the culprits assembled them and on the point of weapons, they took the keys of self (Almirah). They took away Rs.2.6 lacs, six gold bangles, three gold chains, four gold rings, two gold ear tops and two gold ear rings from the self (Almirah). All these articles and cash were kept in bag. The bag was also containing other documents viz bank pass book, PAN card etc. Thereafter, all of them were locked in the bathroom. The robbers had also searched other rooms of the house and they had also taken Nokia mobile phone Page no. 2 of 20 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.23/11 of the complainant and Samsung mobile phone of his son. When they left the house, the complainant came out from the bathroom and made a call at 100 number. On the basis of statement of complainant, rukka was prepared and FIR was registered under Section 392/397/34 IPC.
2. After completion of the investigation, charge-sheet under Section 395/397/412 IPC was filed against the accused persons.
3. On 02.09.2011 charges were framed against accused Jahangir @ Ikka, Mohd. Karim and Jagdish for offence under Section 395 IPC. On the same day, charge was also framed under Section 412 IPC against accused Jahangir and Mohd. Karim, to which they also pleaded not guilty and claimed trial.
4. Prosecution examined 24 witnesses in support of its case.
Prosecution Evidence :-
5. PW-1 Smt. Sushila Sharma deposed that on 13.02.2011, she was present at her house on 1st floor with her children namely Ashish, Dimple and Rohit. Her husband Sh. Ramesh Chand Sharma (PW-3) was present on the ground floor i.e. office of building material on the ground floor. She further deposed that at around 08:00 PM, 5-6 persons brought her husband after making him captive on the 1 st floor, who were armed with knives and pistols and asked for keys of the safe (Almirah). Her nephew namely Anurag (PW-4) was also brought in captivity from downstairs, who was going to ground floor from 1st floor.
She handed over the keys. She further deposed that those 5-6 persons removed her gold jewelleries i.e. six bangles, three gold chain, two ear rings, four rings, Rs. 2.60 lacs, mobile of PW-3 and her son, documents Page no. 3 of 20 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.23/11 viz voter I-card, PAN, Gas papers etc. She also deposed that she, her husband (PW-3), children and nephew (PW-4) were confined by those 5-6 persons in the bathroom and bathroom was closed through latch. She further deposed that they threatened them to kill, if police would be informed. Her wearing gold chain, ring, wrist watch and purse of PW-4 were also taken by them. She further deposed that she could not identify them as they all had covered faces with handkerchief. She did not give purchase bills of jewelleries as the same were not asked by the IO.
6. PW-3 Sh. Ramesh Chand Sharma, deposed that on 13.02.2011, he was present at his shop on the ground floor. At around 07:45 PM-08:00 PM, two boys entered his shop. One of them was showing a slip to ask an address and in the meantime second boy took out a pistol and pointed out the same and threatened not to raise alarm. Two more boys came there and one of them was having knife and other was have a pistol. He further deposed that one of them removed Nokia mobile phone from table and switched off the same and took it away. They asked to handover all cash. They tied the hands on back side with his muffler and took him to back side of shop to take him upstairs. He further deposed that his nephew i.e. PW-4 was coming down and two of them overpowered him and his hands were also tied. He along with PW-4 were taken to 1st floor. Two more boys joined them and forced him and PW-4 to get the door opened. PW-3 further deposed that his wife and three children were present at the 1 st floor. His wife (PW-1) handed over the keys of self (Almirah) to those boys. He further Page no. 4 of 20 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.23/11 deposed that two black bags having label of 'Bansal' had been taken out. One bag was having six bangles, three chains, two ear tops, four rings, two ear rings and another bag was having two 2.6 lac and documents. They also robbed two wrist watches make of Titan (one was lady wrist watch and other was gent wrist watch) and one mobile make of Samsung belonging to his son. They also removed two rings, brown coloured RADO wrist watch and chain from his nephew (PW-4). He further deposed that he along with his wife, children and nephew were locked in the bathroom by them. He further deposed that after leaving those boys, he came out of bathroom and called at 100 number and local police reached there. IO recorded his statement, which is Ex.PW-3/A. Crime team was also called and photographs of the place of incident were taken by the photographer. He further deposed that first two boys were with unmuffled face and later on, two boys with muffled face came there. He further deposed that he went to Tihar Jail for TIP with his nephew (PW-4). He could not identify anyone, but PW-4 could identify one or two accused. He identified the black coloured bag, on which a word 'Bansal' was written. He also identified accused Jagdish as one of the culprits. In his cross-examination, he deposed that landline number of his office was 22803992. He further deposed that IO did not ask him to furnish the telephone bills. He also deposed that the jewelleries were given by parents in the marriage and this fact was not stated before IO because he did not ask the same. According to him, Rs.2.6 lac was the sale amount of bricks, which was to be paid to the supplier. He did not give any description of accused to police in Page no. 5 of 20 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.23/11 his statement i.e. Ex.PW-3/A. On 27.03.2011, he came to know about arrest of accused and IO brought three accused persons to his house, who were in unmuffled face. He again said that he did not remember whether they were with muffled or unmuffled face as it was a matter of about one year back. He further deposed in his cross-examination that at the time of TIP of accused persons, he was under pressure due to atmosphere of Tihar Jail as it was his first visit to Tihar Jail. He denied the suggestion that the IO had shown the accused persons to him at the police station during their police custody remand. He admitted that none of the stolen articles were recovered in his presence. He admitted that he did not give any bill to the IO with respect to mobile phone make Nokia and Samsung as IO never asked him for the same. IO did not call him for TIP of the recovered articles, which were stolen.
7. PW-4 Sh. Anurag Sharma deposed that on 13.02.2011, he came to house of his uncle (phoophaji) at Hardevpuri. At about 07:30-08:00 PM, when he was coming down from 1st floor to ground floor, he saw that four persons had apprehended his uncle Sh. Ramesh Chand Sharma (PW-3). Out of them, two persons were having pistol and one was having knife, which were pointed on PW-3. Two persons apprehended him and pointed pistol and knife on him. He further deposed that they removed two gold rings, RADO wrist watch having metallic coloured chain and black dial and one gold chain from him. Letter 'A' was engraved on the back side of the dial of RADO wrist watch. He further deposed that accused persons took him along with his uncle (PW-3) on 1st floor. Two more persons joined them. PW-3 opened the door of 1 st Page no. 6 of 20 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.23/11 floor, where PW-1 and three children were present. All of them were asked to keep face downwards. PW-1 handed over the keys of self (Almirah). He further deposed that two bags of black colour were taken by those persons. One bag was having jewelleries and other bag was having cash of Rs.2.6 lac and documents. Two wrist watches of Titan and mobile of Ashish (PW-13) make of Samsung were taken from the bed. They had also removed the Nokia mobile phone belonging to PW-3. He also deposed that all of them were locked in the bathroom by those persons. PW-3 untied himself and then him (PW-4) and came out of bathroom and made a call at 100 number. He further deposed that accused, who met him on stairs were with unmuffled face, but before entering room on 1st floor, they covered their faces. He and PW-3 went to Tihar Jail for TIP and he identified one of those accused persons. He could not identify another, while other one had refused to participate in TIP. During his examination in chief, he identified one black Bansal Bag, one RADO watch (on which letter 'A' was engraved on the back of dial). He also identified all three accused persons in the Court and pointed towards accused Jagdish as identified in TIP. He further deposed that stolen wrist watch was not recovered in his presence and he was never called by IO for TIP of wrist watch.
8. PW-5 Ct. Sanjay took five photographs and proved the same as Ex.PW-5/P-1 to Ex.PW-5/P-5 and negatives as Ex.PW-5/P-6 to Ex.PW-5/P-10.
9. PW-6 HC Ramesh was MHC(M) on 24.03.2011 and received two sealed parcels sealed with the seal of 'AK'.
Page no. 7 of 20 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.23/11
10.PW-7 SI Ashok Kumar produced judicial file of FIR no.76/11, PS Anand Vihar containing original disclosure of accused Jagdish, Karim and Jahangir.
11. PW-8 Sh. Gyan Singh was sweet maker and resident of D-3/405, Nand Nagri. He deposed that on 27.03.2011, he was present in front of his house in evening and SI Ashok (PW-24) joined him in the investigation of the present case. He further deposed that accused Jahangir was also with them and they went inside house of Smt. Ram Beti (PW-10) on 1st floor. From a room, accused Jahangir took out a wrist watch and produced to IO. Accused Jahangir was tenant in that house. During his examination in chief, he identified the watch. He denied the suggestion that he falsely identified accused Jahangir and no recovery was effected from accused Jahangir.
12.PW-9 W/Ct. Meena received information regarding dacoity at H.No.V-122, Hardev Puri by five persons on 13.02.2011 and forwarded message to NET of M.S. Park. She filled form i.e. Ex.PW-9/A.
13. PW-10 Smt. Ram Beti was landlady of Jahangir. She deposed that on 27.03.2011, police brought her tenant Jahangir to her house in the evening and he got recovered a wrist watch kept under the cloth from the room on 1st floor. She further deposed that she did not remember the name of tenant but identified accused Jahangir and wrist watch. She deposed that neither rent agreement was executed, nor rent receipt was shown. She further deposed that accused resided there for one month. In cross-examination, she told that police came at 11 PM at her house.
Page no. 8 of 20 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.23/11
14. PW-11 Sh. Amitabh, ld. MM conducted TIP of all three accused persons. He deposed that accused Jahangir refused to participate in TIP. Accused Jagdish was identified by Anurag (PW-4) but PW-3 did not identify anyone. PW-3 and PW-4 did not identify accused Karim. He had told witnesses that he was judicial officer and asked them, if they were under any pressure.
15.PW-12 Sh. Gaurav Gupta, ld. MM conducted TIP of Shafiqul, who refused to participate.
16.PW-13 was Sh. Ashish (son of PW-1 and PW-3). He deposed on the same lines as deposed by PW-1 and PW-3. He further deposed that all accused persons were with muffled faces and he could not see them. The jewelleries were purchased by PW-3 for PW-1. One accused was brought to their house. He deposed that his mobile phone i.e Samsung was having prepaid mobile number. He had given mobile number and IMEI number of the said Samsung mobile phone from the box of said mobile. He further deposed that his father had postpaid connection. Generally Rs.50,000/- to Rs.1 lac used to remain in the house. At that time, loan amount was lying for payment to bricks supplier. He further deposed that the bolt of bathroom was partly broken and it was broken to come out, by his father (PW-3).
17.PW-14 Ct. Om Prakash accompanied ASI Ved Prakash (PW-21) on receipt of DD No.12-A to B-122, Hardev Puri. PW-3 gave statement. He took rukka to PS for registration of FIR and came back along with copy of FIR and original rukka to the spot. IO had called crime team at the spot. IO prepared site plan at the instance of complainant and Page no. 9 of 20 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.23/11 recorded statement of PW-1, PW-3, PW-4 and PW-13.
18. PW-15 SI Shahid Khan was ASI in Anand Vihar police station on 09.03.2011. He deposed that at 08:35 PM, a raiding team under supervision and control of SI Bhim Sen reached Anand Vihar Metro Station and at the instance of informer, the raiding team overpowered four persons, who were planning to commit dacoity along with other three associates. Those three associates ran away from there.
19. PW-16 HC Umesh was the member of the same raiding team of Anand Vihar police station.
20.PW-17 SI Vijay was IO in FIR no.76/11, Anand Vihar police station, who recorded disclosure statement of all accused persons and informed IO of this case.
21.PW-18 ASI Shahid was also the member of the raiding team of Anand Vihar police station.
22.PW-19 SI Chet Ram was finger print expert in crime team. He deposed that he took three chance prints from wooden Almirah, iron Almirah and iron main gate of 1st floor. He sent chance prints to finger print bureau.
23.PW-20 Ct. Hari Om joined investigation on 27.03.2011 in this case along with Ct. Dinesh and IO. He deposed that they visited house of complainant with all three accused persons. Complainant also met them. He further deposed that nothing was recovered from the house of Jagdish. They went to house of Jahangir and PW-10 and Ram Singh joined the investigation in the present case. From the house of Jahangir, one wrist watch was recovered. Thereafter, they went to Karim's house at A-2/158, Nand Nagri and met Suraj Pal. Karim took Page no. 10 of 20 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.23/11 out one black coloured bag with two rings of rubber. They left PS at around 04:00 PM. He further deposed that they left Hardev Puri at around 05:30 PM and reached room of accused Jagdish at around 06:00 PM at Jhilmil. They went to some shops of Jewellers, but shops were locked in Nand Nagri. They reached house of PW-10 at 06:00 PM at Nand Nagri and left at 06:30 PM-07:00 PM. He further deposed that at Karim's place Suraj Pal and 2-3 other persons were present and some neighbourers were requested to join the investigation, but they refused. He further deposed that he did not sign any seizure memo. They left the spot at around 08:15 PM.
24.PW-21 SI Ved Prakash was 1st IO, who visited place of occurrence, recorded statement of complainant and prepared rukka Ex.PW-21/A. He further deposed that further investigation of the present case was marked to SI Ashok (PW-24). According to him, family members of complainant were present, besides public.
25.PW-22 Ct. Om Pal Singh came to Karkardooma Court on 10.05.2011 with IO/PW-24. Accused Shafiqul was arrested and taken on police custody.
26.PW-23 Ct. Dinesh came with PW-24 to Karkardooma Court on 19.03.2011, when all three accused persons were arrested.
27.PW-24 SI Ashok conducted remaining proceedings on 13.02.2011. On 11.03.2011 Duty Officer informed him about information from Anand Vihar police station. He moved application for production of all accused and they were produced in muffled face on 19.03.2011 and were arrested. He moved application for TIP, which was fixed for 22.03.2011.
Page no. 11 of 20 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.23/11 On 26.03.2011, he took police custody of all accused for two days. On 27.03.2011 accused Jagdish led him to his house at Jhilmil Colony, but he could not find anything there. Accused Karim led to place between 1st and 2nd floor and got recovered a bag. He received an information of accused Safiqul on 03.05.2011 and arrested this accused on production in the court on 10.05.2011. This accused was taken to GTB hospital for his medical examination and he escaped from there from custody. He filed chargesheet. He further deposed that no TIP of case property was conducted, because their details were already on record.
Arguments of prosecution :-
28.Ld. CPP submitted that all three accused persons had committed dacoity along with their accomplishes. They were duly identified by PW-3 and PW-4 in the Court. PW-4 had also identified accused Jagdish during his TIP. Accused Jahangir had refused to participate in TIP. These witnesses could not identify accused Karim during his TIP because these witnesses might not have seen his face very clearly. He further submitted that the recovery of robbed articles at the instance of accused Jahangir and Karim leave no doubt that they were involved in this dacoity. Therefore, all accused persons are liable to be convicted for dacoity or in alternate accused Jahangir and Karim are liable to be convicted under Section 412 IPC.
Arguments of defence :-
29.Ld. Amicus Curiae for the accused submitted that accused persons were falsely implicated in this case though they were not involved in Page no. 12 of 20 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.23/11 this crime. He further submitted that these accused persons were arrested by police in a different case i. e. FIR Number 76/2011, Police Station Anand Vihar Delhi. Police falsely implicated accused in this case for only purpose to solve this case. Articles allegedly recovered from the accused persons were planted upon accused Jahangir and Karim. Ld. counsel for the accused further submitted that complainant could not identify any accused during TIP. Accused Jahangir had refused to participate in TIP because admittedly their photographs, were taken by the police in preparation of dossier. These photographs were shown to complainant and PW4, due to which PW4 could identify accused Jagdish during his TIP. However even this witness could not identify accused Karim, which shows that these accused persons were falsely implicated in these cases. He further submitted that the prosecution did not prove any bill/invoice in respect of the alleged robbed articles and therefore the case of prosecution becomes doubtful. He further submitted that IO did not obtain any documents to show that the places allegedly visited by IO to recover the robbed articles were actually given on rent to accused Jahangir and Karim. He further submitted that PW-1, PW-3 and PW-4 made improvements in their testimony before the court, which was not so stated before IO. Therefore the case of the prosecution is not proved beyond all doubts. Findings :-
30. All three accused persons have been charged with the allegations that on 13.02.2011 they committed dacoity along with their accomplishes in the house of the complainant/PW-3. Against accused Jahangir and Page no. 13 of 20 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.23/11 Karim further allegations have been made that Jahangir got recovered one watch and Mohd. Karim got recovered one black bag, which were robbed in the aforesaid dacoity.
31. The prosecution has produced number of witnesses, however, PW-1, PW-3, PW-4 and PW-13 are the witnesses, who were the eyewitnesses of the alleged dacoity. PW-14 and PW-21 had visited the place of occurrence immediately after receiving the information of this dacoity. They were officials of local police station i.e. M.S. Park. PW-19 was the expert in crime team, which had visited the place of occurrence and PW-19 had taken three chance prints from wooden Almirah, Iron Almirah and iron main gate. For this case, it is not much relevant to discuss the testimony of other police witnesses, who were the part of the team, which had actually arrested all three accused persons in a different case i.e. FIR no.76/11, PS Anand Vihar. They are PW-15, PW-16, PW-17 and PW-18.
32.Coming back to evidence of eye-witnesses, I find that PW-1 did not identify any of the accused persons. Similar was the situation with PW-13. According to these witnesses, the accused persons were with muffled faces, therefore they were unable to identify the accused persons. The remaining eyewitnesses i.e. PW-3 and PW-4 identified the accused persons in two stages. Both these witnesses had visited Tihar Jail to identify accused Jagdish and Karim. Accused Jahangir had refused to participate in TIP. However, PW-3 was not able to correctly identify accused Jagdish, though, PW-4 identified accused Jagdish in his TIP. Both of these witnesses were unable to identify Page no. 14 of 20 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.23/11 accused Karim during the TIP. When these witnesses came to the Court for their testimony, PW-3 identified accused Jagdish, but could not identify other accused persons stating that due to long gap of time, he could not recollect their faces. On the other hand, PW-4 identified all three accused persons to be culprits in this case. Now, it has to be seen whether such identification of accused persons by these two witnesses are worth reliance or not? ld. Defence counsel had argued that the changing stand of PW-4 to identify accused Karim before the Court, though he had failed to identify him during TIP and failure of PW-3 to identify any of the accused persons during TIP, but his identification of accused Jagdish before the Court, create a suspicious situation, which has not been satisfactorily explained by the prosecution. These two witnesses had visited Tihar Jail for identification of accused Jagdish as well as Mohd. Karim on 22.03.2011. As per normal human nature, if these witnesses had seen the culprits during the incident, then they would have fresh memory so as to be able to point out to those culprits, however these witnesses could not point out to Jahangir or Karim at that time to be the culprits in this case. Only accused Jagdish was identified at that time and that too only by PW-4. PW-3 had failed to identify him even at that time. Now, after a gap of one year from the incident, when these witnesses were examined before the Court they came up with the version that they were able to identify the accused persons. PW-3 who could not identify any accused after one month of the incident, was able to identify one accused namely Jagdish. On the other hand, PW-4, who was able to Page no. 15 of 20 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.23/11 identify only Jagdish during TIP, was able to identify all three accused persons to be the culprits. I am unable to accept such reverse order of ability to recollect the memory.
33. This would be relevant to mention that PW-3 and PW-13 deposed that the police officials had taken accused persons to their house, after arrest of the accused persons. This fact was disclosed during cross- examination by these witnesses, though other witness i.e. PW-24 i.e. IO of this case kept mum over this fact that each accused was taken before the family members of complainant. It is on the record that accused Jahangir and Karim were taken to house of complainant on 27.03.2011 by PW-24/IO for the purpose of pointing out of place of occurrence.
34. First of all, I find that this practice of preparing pointing out memo of place of occurrence on the basis of confession of accused is irrelevant procedure because IO knew the place of occurrence. Therefore, there was no discovery of new fact. Secondly, both these accused persons were already arrested by officials of Anand Vihar police station and PW-17 had already recorded disclosure statement of all three accused persons. In that disclosure statement, allegedly all these accused persons had made confessional statement to be involved in the crime of this case. Thereafter, PW-24/IO of this case arrested these accused persons on the basis of their previous disclosure statement. He did not mention in his application for production of the accused persons that they should be produced in muffled face. PW-24 admitted in his cross- examination that after arrest of the accused, their photographs were Page no. 16 of 20 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.23/11 taken in order to prepare dossier. In these circumstances, feeding PW-4 with the identification of accused Jagdish was not improbable. If PW-3 and PW-4 had actually seen the assailants/culprits, they would have identified those culprits during TIP itself. The explanation of PW-3, that he was under pressure and was nervous, does not appear to be a logical excuse for not identifying accused persons initially. Thereafter, accused persons had been produced before the Court without any muffled faces and it was duty of the IO to take such precautions in the initial stage. PW-4 did not explain that how could he identify all three accused persons in the Court, when he was unable to do so immediately after one month of the incident. Therefore, I find that such fluctuating identification of accused persons is not very convincing.
35. The another important evidence, produced by the prosecution against the accused Jahangir and Karim, is recovery of robbed articles from them. However, I find that out of so many valuables robbed in this case, the police had recovered one black bag with two rubber rings and one local made wrist watch. After alleged recovery of all these articles, IO/PW-24 did not apply for TIP of these case properties. IO gave explanation in his cross-examination that he did not apply for the TIP of the case properties because the details of the articles were already on the record.
36. From the perusal of the record, be it initial complaint i.e. Ex.PW-3/A or FIR or information given to police control room i.e. Ex.PW-9/A, I do not find any whisper of description of black bag. What was stated in the Page no. 17 of 20 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.23/11 complaint, was that the valuables were kept in the bag in the Almirah, but what was the description of this bag, was not so mentioned.
37.As far as RADO wrist watch is concerned, I find that there was no allegation initially about robbery of this wrist watch. The information recorded at police control room vide Ex.PW-9/A also provides the description of the articles which were allegedly robbed in this incident. In this information, it was stated that two rings of PW-4 were robbed. At that time, there was no whisper of RADO wrist watch being robbed from PW-4. After giving this information to police control room, PW-3 had made his complaint to the local police on same day and even in that complaint, there was no whisper of the robbery of RADO wrist watch. It is only in the statement recorded under Section 161 Cr.P.C. that the description of a RADO wrist watch was mentioned as one of the robbed articles.
38. Now, if I turn to the alleged disclosure statement of the accused persons namely Jahangir and Karim, I find that none of them had stated that they were in possession of a black bag or the wrist watch, which were robbed in this incident. Still IO could get a feeling that these two articles would be recovered at their instance. These accused persons did not disclose that they had kept any robbed article at a particular place or their residence, still IO took them to their respective residential place and recovered these undisclosed robbed articles. This whole scenario in itself is very fishy for want of sufficient clarification. On the other hand, the IO/PW-24 had recorded in the disclosure statement of these two accused persons that they had sold Page no. 18 of 20 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.23/11 the gold jewelleries to jeweller at Nand Nagri. Surprisingly, the case of prosecution is totally silent in respect of any recovery of such gold jewelleries from the shop of any Jeweller. In this respect, only statement came from the mouth of PW-20, who had accompanied IO/PW-24. This witness deposed that they had went to some shop of Jewellers in Nand Nagri, but the shops were locked. IO/PW-24 did not whisper anything about the attempt, if taken to recover jewellery or other articles. Thus, the record shows that IO went on to recover those articles, which were not disclosed by the accused persons to be in their possession, but IO did not recover anything, which were allegedly disclosed by the accused persons to be sold in Nand Nagri in the shop of some Jewellers. Obviously, the shop of jeweller could not have vanished for all times.
39. The aforesaid description of a suspicious recovery proceedings worsens the situation due to the fact that allegedly two working mobile phones were also robbed by the culprits. PW-13 deposed that he had given the mobile number as well as IMEI number to the IO. But on the record, I find that IO even did not bother to collect CDR or CAF or any other material in respect of these mobile numbers. If the accused persons were involved in this crime, then the location of any subsequent calls made through these two mobile numbers, could have a connection with the accused persons. Even otherwise, the location of any call made through these two mobile numbers subsequent to 13.02.2011 would have given a clue to reach the culprits, but he chargesheet as well as the statement of IO/PW-24 is totally silent in Page no. 19 of 20 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi FIR No.23/11 respect of the same.
40. If the accused persons were involved in this crime, then their finger prints should have matched with the chance prints lifted from the spot, but there is no such positive result placed and proved on the record, to connect the accused persons with the alleged crime.
41. Therefore, on the basis of a half heartedly conducted investigation and suspicious recovery proceedings as well as doubtful identification of the accused persons, I do not find it to be safe to raise presumption of guilt of the accused persons for alleged charges. Hence, all accused persons are acquitted of all the charges levelled against them. I have no hesitation to add here that this case was not solved nor properly investigated. Still, investigating agency as well as prosecution presented the case to show as if the case was solved. Hence, it is desirable that an appraisal of the work of related officials is made by the respective departments and needful is done accordingly.
File be consigned to record room, as per rules.
Announced in the open court (PULASTYA PRAMACHALA) today on 03.09.2014 Additional Sessions Judge (Shahdara), (This judgment contains 20 pages) Karkardooma Courts, Delhi Page no. 20 of 20 (Pulastya Pramachala) Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi