Delhi District Court
State vs . (1) Prem @ Rajesh @ Pawa on 25 April, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 09/2011
Unique Case ID: 02404R0025682011
State Vs. (1) Prem @ Rajesh @ Pawa
S/o S. Mange Ram
R/o D Block Bhalswa Dairy
Shardha Nand Colony, Delhi.
(Acquitted)
(2) Mohd. Afsar @ Ashok,
S/o Sh. Mohd. Akhtar,
R/o Village Sultanpuri, Delhi.
(Already discharged)
FIR No. : 230/10
Under Section : 392/397/34 IPC Indian penal
Code.
Police Station : Ashok Vihar
Date of committal to Sessions Court : 22.02.2011
Judgment reserved on : 25.04.2011
Judgment pronounced on : 25.04.2011
JUDGMENT
Brief Facts: The case of the prosecution in brief is that on 19.08.2010 at about 850 P.M. at Factory No. 4, Wazirpur Industrial Area, Ashok St. V. Prem @ Rajesh, FIR 230/10, PS: Ashok Vihar Page 1 of 18 Vihar, Delhi,the accused Rajesh @ Pawa @ Prem along with his associates (not arrested), committed robbery of Rs.80,000/, one gold ring from one Laxmi Chand and Rs.70,000/, one gold chain, one gold kara and one wrist watch from one Om Parkash. It is further alleged that while committing robbery as above, the accused also used pistol and knife which pistol was recovered in another case bearing FIR No. 191/10 Police Station Patel Nagar. CHARGE The accused Rajesh @ Pawa @ Prem has been charge sheeted for the offence under Section 392/397/34 Indian Penal Code and also for the offence under Section 25/275459 Arms Act, to which the accused pleaded not guilty and claimed trial. PROSECUTION EVIDENCE In order to prove its case, prosecution has examined ten witnesses.
Public Witnesses:
PW7 Ram Lakhan has deposed that on 19.08.2010 he was working as driver in M/s Asrani Steel, having its office at A4, Wazirpur Industrial Area and on that day at about 8.50PM when he was on overtime and was sitting at the gate of the factory on a chair and the gate was open, two boys came to him one of whom showed St. V. Prem @ Rajesh, FIR 230/10, PS: Ashok Vihar Page 2 of 18 him a knife and one boy showed him a revolver. According to the witness, both those boys were wearing helmets and had covered their faces with a scarf. He has deposed that one person had put a knife on his back while other caught his collar and threatened him saying that in case he raised an alarm he would be killed by saying Kuchh bologe to goli maar doonga. According to the witness, in the meanwhile two other boys came who were also wearing helmets and had covered their faces with scarfs and caught the guard and threatened to kill him and all the four boys took him and the guard inside the cabin where Lachhmi Chand and Om Prakash were sitting. According to the witness, the boy who had caught him thereafter threatened Lachhmi Chand and Om Prakash stating "Kuchh bologe to goli maar doonga," and in the meanwhile two boys who had caught the guard, went outside and stood near the gate of the factory. The witness has deposed that within one / one and a half minute, the said boys removed the rings worn by Lachhmi Chand and Om Prakash and the chain of Om Prakash and also cash lying in the drawer and thereafter both the boys went out. According to the witness, they all got scared and did not follow these boys and thereafter somebody from inside called the police and after the police came to the spot, they carried out investigations and took him and the guard to the police station where they interrogated them. He was left on the asking of his employer at 2.00 midnight and the guards was St. V. Prem @ Rajesh, FIR 230/10, PS: Ashok Vihar Page 3 of 18 left at 2.00 PM on the next day.
According to this witness, on 11.11.2010 the police called him to Tihar Jail and he was taken to Jail No. 3, 5 and 7 where he could identify only one boy on the basis of height and built/ profile. Thereafter, he left the employment of Lachhmi Chand. On being asked the court question How could you identify the accused in the TIP when he did not see the face of the accused during the incident ? This witness deposed that it was only on the basis of guess work and approximation but he was not sure. Witness is unable identify the accused in the court since according to him he had never seen him.
This witness was declared hostile on the identity of the accused thereafter during crossexamination by Ld. APP this witness deposed that he had told the police that the accused had scarves on their faces and were wearing helmets. He had denied that he had been won over by the accused and was deposing falsely to the extent that he had told the police that the accused were wearing helmets and had covered their faces with the scarfs. This witness was confronted with his statement Ex.PW7/PX1 where it is not so recorded. He had denied that he had told the police that he can identify the accused in case they were shown to him. This witness was confronted with the portion A to A1 of the statement Ex.PW7/PX1 where it is so recorded. He had told the Ld. MM when Judicial TIP was conducted St. V. Prem @ Rajesh, FIR 230/10, PS: Ashok Vihar Page 4 of 18 that he can only identify the accused by approximation but not with certainty since he was in muffled face. He has denied that he had not told Ld. MM about the fact of wearing helmet and he was deposing falsely today because he had been won over by the accused.
During his crossexamination by Amicus Curiae for accused, this witness has admitted that he was called to Sector 7, Office of the Police / Police Station and shown some boys for identification and informed that these were the boys who had committed the offence. He has also voluntarily stated that he had told the police that he cannot identify them. He had admitted that the person whom he had identified in the Judicial TIP was also present there. He had denied that he identified the accused in Judicial TIP on the asking of the IO. He voluntarily deposed that it was only on his approximation and even as on date he cannot definitely identify the accused.
PW8 Om Prakash deposed that in the month of August, 2010, date he did not recollect, at about 9.00PM was sitting in his office at A4, Wazirpur Industrial Area where he was running a business under the name and style of Asrani steel industries. His brother Sh. Lachhmi Chand was also with him, when two boys suddenly entered his office. According to him both those boys were wearing helmets and had covered their face with the vizer of the helmet and one of them had a revolver in his hand which he showed St. V. Prem @ Rajesh, FIR 230/10, PS: Ashok Vihar Page 5 of 18 to him (witness) and other boys was having a knife. The witness has deposed that he told the boy who had put the revolver on him to put the revolver down and take whatever he wanted. According to the witness, he had cash of Rs. 70 to 80 thousand in his drawer which he handed over to that boy. The witness has deposed that the said boy also asked him to remove his gold kara, chain and watch on which he removed the same and handed over these articles to the boy who was carrying the revolver. According to the witness, he also removed the gold ring of his brother and the cash which was kept in his drawer to the tune of 70 to 80 thousand and thereafter those boys went away. According to the witness, somebody from his factory called his nephew to inform him about the incident and he called the police and after the police came to the spot, investigations were carried out at the spot and the spot of incident was also photographed. According to the witness, his statement was also recorded by the investigating officer. He deposed that he cannot identify the accused as they were wearing helmets.
Ld. APP with permission of court has put leading questions to the witness in order to refresh his memory wherein witness has admitted that incident is dated 19.08.2010 and that he had told police that there were four persons involved in the incident and that the other two boys were standing outside and he had seen them through the glass and they were having scarfs on their faces. St. V. Prem @ Rajesh, FIR 230/10, PS: Ashok Vihar Page 6 of 18
This witness was declared hostile on the identity of the accused and during crossexamination by Ld. Addl. Prosecutor, he has deposed that he had told the police that the accused had scarfs on their faces and were wearing helmets. He has denied that he had been won over by the accused and was deposing falsely to the extent that he had told the police that the accused were wearing helmets and had covered their faces with the scarfs. This witness was confronted with the statement Ex.PW8/PX1 where it was not so recorded. He had denied that he had told the police that he can identify the accused in case they are shown to him. This witness was confronted with the portion A to A1 of the statement Ex.PW8/PX1 where it is so recorded. He has denied that he deliberately not identifying the accused due to fear or for any other reason or that accused persons were not wearing helmets and scarfs and he had seen them by face at the time of commission of offence. This witness was not cross examined by Sh. Aseem Bharadwaj, Amicus Curiae for accused Rajesh @ Pawwa.
PW9 Lakshmi Chand has deposed that on 19.08.2010 at about 8.50 he was sitting in his office at A4, Wazirpur Industrial Area with his brother Om Prakash where he was running a business under the name and style of Asrani steel industries when two boys suddenly entered his office who had brought the guard namely Ram Avadh and the driver Ram Lakhan whom they pushed inside the St. V. Prem @ Rajesh, FIR 230/10, PS: Ashok Vihar Page 7 of 18 room. One boy was wearing a helmet and the other had covered his face a scarf. According to the witness, one of them had a revolver in his hand which he showed to him and other boys was having a knife which he showed to his brother. The witness has deposed that those boys asked him to hand over the valuables to them. He has further deposed that a cash of about Rs. 80 thousand was in his drawer which he handed over this boy along with his gold ring which they took. The witness has deposed that the said boys also removed the gold Kara, Chain and watch of his brother and also about Rs.70,000/ which he had in a drawer and thereafter both of them went away. According to the witness somebody from his factory called the police and after the police came to the spot they recorded his statement which is Ex.PW9/A bearing his signatures at point A. The police thereafter carried out the investigations at the spot and also photographed the spot. According to him, he cannot identify the accused as they were wearing helmets.
At the request of Ld. APP for permission to put leading questions to the witness in order to refresh his memory, the permission was granted wherein this witness deposed that he was not sure if he had told the police that four persons were involved in the incident. He has voluntarily deposed that he had only seen two boys inside the room but twothree boys were standing outside whom he had seen through the glass of his office but he cannot identify them St. V. Prem @ Rajesh, FIR 230/10, PS: Ashok Vihar Page 8 of 18 as they had covered their faces with scarves.
This witness was declared hostile on the identity of the accused and during crossexamination by Ld. Addl. Prosecutor this witness deposed that he had told the police that the accused had scarfs on their faces and were wearing helmets. Witness has denied that he had been won over by the accused and has deposed falsely to the extent that he had told the police that the accused were wearing helmets and had covered their faces with the scarfs. This witness was confronted with the statement Ex.PW9/A and Ex.PW9/PX1 where it is not so recorded. He had denied that he had told the police that he could identify the accused in case they were shown to me. This witness was confronted with the portion A to A1 of the statement Ex.PW9/PX1 where it is so recorded. He had denied that he deliberately not identifying the accused due to fear or for any other reason or that accused persons were not wearing helmets and scarfs and he had seen them by face at the time of commission of offence. This witness was not crossexamined by counsel for the accused.
PW10 Ram Avadh has deposed that on 19.08.2010 he was working as guard in M/s Asrani Steel, having its office at A4, Wazirpur Industrial Area and on that day at about 8.50PM when he was on duty and was at the gate of the factory checking the labour who was going, which gate was open, when two boys came to him, St. V. Prem @ Rajesh, FIR 230/10, PS: Ashok Vihar Page 9 of 18 one boy had his face covered with a helmet and other had face covered with a scarf. According to the witness, one of the boy showed him a knife and one boy showed him a revolver. The said persons showed him knife and the revolver and said "abhi too choo karega to chala denge". He has deposed that the driver Ram Lakhan was with him and one third boy showed him a knife and threatened him and thereafter both these boys pushed both of them and dragged them to their office. According to the witness, in the meanwhile two three more boys came who were armed with revolver and knives while other boys stood outside. The witness has deposed that three boys took him and the driver inside the cabin where Lachhmi Chand and Om Prakash were sitting and threatened his employer saying shor sharaba kiya to goli chala doonga. According to the witness, the said boys removed the jewellery worn by his employers and the cash kept in the room and thereafter the boys went outside waiving the revolver. The witness has deposed that he was unarmed and did not follow the boys and it was his employer who called the police. According to the witness, after the police came to the spot, they carried out investigations and took him and the guard to the police station where they interrogated them. The witness has deposed that he was left by the police on the next day in the morning at about 9.0010.00 after interrogation. According to him he cannot identify the accused since all of them had covered their faces with helmets St. V. Prem @ Rajesh, FIR 230/10, PS: Ashok Vihar Page 10 of 18 and scarves.
The witness was declared hostile on the identity of the accused and during crossexamination by Ld. Addl. Prosecutor, he deposed that he had told the police that the accused had scarfs on their faces and were wearing helmets. He had denied that I had been won over by the accused and was deposing falsely to the extent that he had told the police that the accused were wearing helmets and had covered their faces with the scarfs. This witness was confronted with the statement Ex.PW10/PX1 where it was not so recorded. He had denied that he had told the police that he can identify the accused in case if they were shown to him. This witness was confronted with the portion A to A1 of the statement Ex.PW10/PX1 where it was so recorded. This witness was not crossexamined by counsel for accused.
Police Witnesses:
PW1 HC Mahender Singh has tendered his examination in chief by way of affidavit which is Ex.PW1/1 bearing his signatures at points A and B, wherein he has stated that on 19.8.2010 he was posted as Duty Officer from 1600 hours to 2400 hours at Police Station Ashok Vihar and on that day on receipt of rukka from Ct. Mohd. Afjal, he recorded the present FIR and thereafter handed over the copy of FIR and original rukka to Ct. Mohd. Afjal to further St. V. Prem @ Rajesh, FIR 230/10, PS: Ashok Vihar Page 11 of 18 deliver the same to IO, SI Nawal Singh. He relied upon the documents i.e. FIR computerized copy of the which is Ex.PW1/A bearing his signatures at point A. He also made endorsement on the rukka which is Ex.PW1/B which bears his signatures at point A. He also recorded one DD entry which is Ex.PW1/C. (Originals of above documents seen and returned). During his cross examination by Ld. defence counsel/ Amicus Curiae for accused, PW1 has deposed that Ct. Afzal remained in the duty room for about half an hour and he left the duty room at about 11.30PM. He recorded the departure entries of police officials involved in the present case. He had denied that the FIR is antedated and anti timed or that he had not recorded the FIR as deposed. He had further denied that DD entries were also ante dated and ante timed or that the same had been manipulated at the instructions of the IO. He had deposed that he had been deposing falsely.
PW2 HC Surender Dutt has tendered his examination in chief by way of affidavit which is Ex.PW2/1 bearing his signatures at points A and B, wherein he has deposed that on 30.10.10 he along with IO/SI Nawal Singh was present in the Court Room No. 102, Rohini Court, Delhi when the IO sought permission from the Court for interrogation and formal arrest of the accused persons and after obtaining the permission, the accused persons were arrested in his St. V. Prem @ Rajesh, FIR 230/10, PS: Ashok Vihar Page 12 of 18 presence. He relied upon the documents i.e. arrest memo of accused Sunny @ Rakesh which is Ex.PW2/A bearing his signature at point A, arrest memo of accused Rahis @ Ganja which is Ex.PW2/B bearing his signature at point A arrest memo of accused Prem @ Rajesh @ Pawwa which is Ex.PW2/C bearing his signature at point A, arrest memo of accused Ajay @ Payyu which is Ex.PW2/D bearing his signature at point A. According to the witness, the investigating officer also recorded disclosure statements of above named accused persons vide Ex.PW2/E, Ex.PW2/F, Ex.PW2/G and Ex.PW2/H respectively all bearing his signatures at point A. During his crossexamination by Sh. Aseem Bharadwaj, Amicus Curiae for accused, this witness denied that signatures of accused were obtained on blank papers or that they had not made the disclosure statements as alleged. He had denied that he was deposing falsely.
PW3 Ct. Naveen has tendered his examinationinchief by way of affidavit which is Ex.PW3/1 bearing his signatures at points A and B, wherein he has deposed that on 13.11.10, he along with Ct. Satender and Si Nawal Singh was present in the court of Ld. Duty Magistrate, Rohini when the IO sought PC remand of accused Rahish and Prem @ Rajesh, He has further deposed that medical examination of both the accused was got conducted at BJRM St. V. Prem @ Rajesh, FIR 230/10, PS: Ashok Vihar Page 13 of 18 Hospital and the IO thereafter prepared the pointing memo of the place occurrence at the instance of the accused which he has also signed as a witness. He has also relied upon the documents i.e. pointing out memo Ex.PW3/A bearing his signature at point A. During hs crossexamination by Ld. defence counsel, this witness denied that he had not visited the spot along with the accused or that he had signed memo Ex.PW3/A at police station later on at the instance of the investigation. He had denied that he had not joined the investigation as deposed or that he was deposing falsely.
PW4 SI Satpal has tendered his examinationinchief by way of affidavit which is Ex.PW4/1 bearing his signatures at points A and B, wherein he has deposed that on 19.8.2010 he was working as Incharge Crime Team, North West District and on that day on receipt of message from SI Nawal Singh, he along with finger print proficient HC Vikas No. 424/NW and photographer Ct. Dalbir reached at the spot and inspected the scene of crime and Ct. Vikas lifted the chance print from various places. He deposed that Ct.Dalbir took the photographs of the scene of crime from different angles. He thereafter handed over the crime team report to SI Nawal Singh. Witness has relied upon the documents i.e. his report which is Ex.PW4/A bearing his signature at point A. During his cross examination by Sh. Aseem Bharadwaj, Amicus Curiae for accused this witness deposed that he cannot admit or deny whether there is St. V. Prem @ Rajesh, FIR 230/10, PS: Ashok Vihar Page 14 of 18 cutting and overwriting at point X on Ex.PW4/A. He has denied that he had not visited the spot as deposed or that he had prepared the report later on in his office as per the instructions and as per the wishes of the investigating officer. He has denied that he was deposing falsely.
PW5 HC Vikas has tendered his examination in chief by way of affidavit which is Ex.PW5/1 bearing his signatures at points A and B, wherein he has deposed that on 19.8.2010 he was working as Finger Print Proficient, Crime Team, North West District and had joined the investigation in this case and lifted one chance print from office gate and one chance print from the glass of table inside the office and gave one report to the SI Nawal Singh and sent one report to Finger Print Bureau, Malviya Nagar. He relied upon the documents i.e. finger print proficient report which is Ex.PW5/A bearing his signature at point A. During crossexamination by Amicus Curiae for accused this witness had deposed that he had told the IO that he had lifted two chance prints. He had denied that he had prepared his report on the instructions of the IO. He had denied that he had not visited the spot.
PW6 Ct. Dalbeer has tendered his examination in chief by way of affidavit which is Ex.PW6/1 bearing his signatures at points A and B, wherein he has deposed that on 19.8.2010 he was working as photographer, Crime Team, North West District and had St. V. Prem @ Rajesh, FIR 230/10, PS: Ashok Vihar Page 15 of 18 joined the investigation in this case and on the instructions of the IO he took the photographs of the scene of crime from different angles. He relied upon the photographs Ex.PW6/A to Ex.PW6/E which were taken by him at the spot of incident with the help of a digital camera. The CD of the same is Ex.PW6/F. (objected to as to the mode of proof). During crossexamination by Amicus Curiae for accused this witness deposed that he signed the affidavit Ex.PW6/1 after reading the same. He has admitted that the fact of clicking the photographs by digital camera in his affidavit. He had not brought the negatives because there were no negatives and the photographs were taken by the digital camera. This witness had voluntarily deposed that the fact regarding the negatives had been mentioned in the affidavit inadvertently in routine. He had mentioned about the number of photographs clicked by him at the spot, to the Incharge of crime team. He had denied that he had not visited the spot as deposed or that he had not clicked the photographs. FINDINGS I have gone through the testimonies of the witnesses examined by the prosecution and it is evident that all the public witnesses have stated that they had been repeatedly telling the investigating officer and the SHO that they are not in a position to identify the accused as they were all in muffled faces having hidden St. V. Prem @ Rajesh, FIR 230/10, PS: Ashok Vihar Page 16 of 18 their faces by scarves or helmets despite which the investigating officer in the statements of these witnesses recorded under Section 161 Cr.PC has mentioned that they would be in a position to identify the accused, which appears to have been done deliberately.
Further, the investigating officer who was present in the court submitted that no recovery has been effected from the accused pursuant to disclosure statement. The present accused Prem @ Rajesh has not been identified by any of the public witnesses examined in the court. In the absence of any support from the deposition of the public witnesses particularly the complainant, the deposition of other prosecution witnesses who are yet to be examined would be insufficient to connect the accused with the offence in question. Addl. PP requested for another opportunity to examine other witnesses which request was turned down as no useful purpose would have been served in examining the remaining witnesses. No useful purpose would be served to continue with the evidence and the prosecution evidence has been closed.
In view of the above, when the prosecution has miserably failed in bringing on record any incriminating evidence against the accused which could entail recording of their statement u/s 313 Cr.PC, the recording of the same was accordingly dispensed with.
This being the background, the accused Prem @ Rajesh has been acquitted from the charges under Section 392/397/34 St. V. Prem @ Rajesh, FIR 230/10, PS: Ashok Vihar Page 17 of 18 Indian Penal Code and also for the offence under Section 25/275459 Arms Act.
Accused be released if not wanted in any other case. His bail bond stands cancelled and surety is discharged.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 25.04.2011 ASJ (NW)II: ROHINI
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