Delhi District Court
State vs Hardev And Ors. on 18 December, 2017
State Vs Hardev and ors.
FIR no. 93/13
PS Ashok Vihar
IN THE COURT OF SHRI DEEPAK GARG :ADDL.SESSIONS JUDGE
II (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 51613/16
Unique Case ID: 02404R0378362013
State
Vs.
1. Hardev
s/o Sh. Chaman Lal
R/o H.No. 1547, Sector4
Gurgaon, Haryana
2. Monu @ Raju
S/o Mahi Pal
R/o: Village Tihdi
Gurgaon, Haryana
3. Deepak
s/o Sh. Chander Pal
R/o Village Paachi, Dikoli,
PS Chander Nagar,
District Bagpat, UP
4. Aabid
s/o Sh. Irfan
R/o Kasba Shahpur,
District Muzafarnagar, UP
FIR No. : 93/13
Police Station : Ashok Vihar
Under Section : 395/397/412/34 IPC
Date of committal to Sessions Court : 09.02.2015
Date on which orders were reserved : 18.12.2017
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State Vs Hardev and ors.
FIR no. 93/13
PS Ashok Vihar
Date on which judgment pronounced : 18.12.2017
JUDGMENT
1. This case is under sections 395/397/412/34 of Indian Penal Code, 1860 (IPC).
CASE OF THE PROSECUTION
2. Present FIR was registered on the complaint of Sh. Rajeev Aggarwal. He has alleged in his complaint that he is into the business of manufacturing of mattresses and having business dealing with Hardev who was running a shop in Gurgaon, Haryana. On 30/3/2013 at about 8:30 a.m. he, his son Mohit and Shivangi, daughter of his brother in law were present at the house and on that day, Hardev and one lady who was appearing to be his wife and some other persons/boys aged about 2223 years came to his house. Hardev demanded Rs.5,00,000/ which was due towards the complainant but complainant told that he had already supplied the goods worth Rs. 3,00,000/ and asked him to come over on some other day. In the meantime, son of complainant namely Mohit Aggarwal also came there. One of the boy who had come with Hardev took out a revolver and knife and complainant and his son were forcibly made to sign on certain stamp papers. Thereafter, they compelled complainant to open his briefcase and when he was opening it, Page no. 2/15 State Vs Hardev and ors.
FIR no. 93/13PS Ashok Vihar someone hit on his head. When his son Mohit tried to intervene, they also started beating Mohit and rammed his head on the glass table as a result of which he received injuries. During the said period, one of the accused fired from the revolver in order to threaten them and they robbed Rs. 17,00018,000/ from complainant's purse. Complainant and his son raised alarm due to which assailants ran away. Complainant and his son were taken to Maharaja Aggarsain Hospital by neighbours. Someone dialled 100 number. Police recorded the statement of complainant.
3. On the complaint of the complainant, present FIR was registered. Investigation was carried out. The accused persons were arrested. Some of the robbed articles were recovered from accused Hardev. On completion of the investigation, charge sheet was filed in the Court.
4. On compliance of Section 207 Cr.P.C, the chargesheet was committed to this Court by the Court of Ld. MM.
5. Charge under Sections 395/34 IPC was framed against all the accused persons and accused Deepak and Monu @ Kaju were additionally charged under Sections 397 IPC and accused Hardev was additionally charged under Sections 412 IPC, by my Ld. Predecessor court vide order dated 07/07/2015, to which they pleaded not guilty and claimed trial.
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6. In order to prove its case, the prosecution has examined in total 13 witnesses.
PUBLIC WITNESSES
7. Complainant Rajiv Aggarwal, Shivangi and Mohit Aggarwal (victim) have been examined as PW5, PW6 and PW8 respectively. Their testimony shall be discussed in the later part of the judgment.
POLICE WITNESS
8. PW1 HC Sushma Chauhan is the duty officer who proved the copy of FIR and endorsement on rukka as Ex.PW1/A and Ex.PW1/B respectively.
9. PW2 SI Nand Kishore is the Crime Team Incharge, who visited the spot on the date of incident and proved the Crime Team Report as Ex.PW2/A.
10. PW3 Ct. Narshi has deposed in sync with PW13 SI Ram Kumar with whom he remained in the investigation.
11. PW4 HC Baljeet has deposed in sync with PW13 SI Ram Kumar with whom he went to Rohini Jail and IO arrested accused Hardev, Aabid, Deepak and Monu vide arrest memos ExPW4/A to ExPW4/D. Page no. 4/15 State Vs Hardev and ors.
FIR no. 93/13PS Ashok Vihar
12. PW7 Ct.Vijendra has deposed in sync with PW13 SI Ram Kumar and PW4 HC Baljeet with whom he remained in the investigation.
13. PW11 HC Subhash has deposed that on on 10/9/2013 he had joined investigation of FIR no. 222/13 PS Rajendra Park, Gurgaon with ASI Harbir, Ct. Bheem and SI Rajesh and in his presence accused Hardev made disclosure statement regarding his involvement in the present case.
14. PW13 SI Ram Kumar has deposed that on 30/3/2013 on receipt of DD no. 15A he along with Ct. Narsi reached the spot i.e. H.No. E162, 3rd floor, Ashok Vihar, Delhi where Shivangi, niece of complainant Rajiv Aggarwal met them and informed that injured were taken to Maharaja Aggarsen Hospital Ashok Vihar. He proved DD no. 15A as ExPW13/A. He obtained the MLC of both the injured and recorded statement of Rajeev Aggarwal. He proved rukka as ExPW13/B. Crime team was called and blood, some pieces of blood stained glass, one blood stained white pant, one matmaila colour cloth lying on the spot were lifted and taken into possession after sealing them with the seal of RS vide seizure memo ExPW3/A. He also seized two pairs of slippers, one broken table lying in the gallery. He proved seizure memo as ExPW13/B1. During the investigation, an information was received regarding arrest of accused persons in a case FIR no. 222/13. He proved the arrest memos Page no. 5/15 State Vs Hardev and ors.
FIR no. 93/13PS Ashok Vihar and disclosure statements of accused as ExPW4/A to ExPW4/H. Accused persons led the police party to the place of occurrence. He proved pointing out memo regarding place of occurrence i.e. H.No E162, third floor, Ashok Vihar, Phase I, Delhi as ExPW4/J. Accused Hardev also led the police party to his house i.e. Sector 4, Gurgaon, Haryana where he got recovered certain robbed articles which were seized vide seizure memo ExPW4/K. OTHER WITNESS
15. PW9 Sh. Krishan Gopal Monga has deposed that on 30/3/2013 at about 9:00a.m.his servant, who was cleaning the car, had called him and informed him that his neighbour Rajeev Aggarwal is calling him. Hearing this, he came outside from his house and found that Rajeev Aggarwal and his son Mohit Aggarwal were present at his gate and blood was oozing out from the foot of Mohit Aggrwal. On their request he had taken both of them to Maharaja Aggarsen Hospital, D Block, Ashok Vihar, through his car.
MEDICAL EVIDENCE
16. PW10 Dr. Sharad Chandra, CMO, Maharaja Agarsen Hospital, has proved MLCs of Mohit Aggarwal and Rajiv Aggarwal as ExPW10/A and ExPW10/B respectively. He has stated that after initial examination both the patient were referred to Ortho Department to Dr. Anil Dogra.
Page no. 6/15 FIR no. 93/13PS Ashok Vihar SCIENTIFIC EVIDENCE
17. PW12 Sh. Naresh Kumar has analysed the exhibits sent to the FSL, Rohini and proved his detailed report as ExPW12/A and serological report as ExPW12/B. STATEMENT OF ACCUSED PERSONS
18. After completing the prosecution evidence, statement of accused persons were recorded under Section 313 Code of Criminal Procedure, in which all the incriminatory facts and circumstances appearing in evidence against them were put to them, which have been denied by them in toto. All the accused persons have stated that they are innocent and falsely implicated in this case and they have nothing to do with the offence in question. They have not led any evidence in defence.
ARGUMENTS FROM BOTH SIDES
19. I have heard the Ld. Addl. PP for the State and Sh.
B.L.Madhukar, Ld. Counsel for the accused persons and have perused the material available on record.
20. It is argued by the Sh. B.L. Madhukar, Ld. Defence counsel that the prosecution has miserably failed to prove its case beyond reasonable doubts. It is stated that all the public Page no. 7/15 State Vs Hardev and ors.
FIR no. 93/13PS Ashok Vihar witnesses have not supported the case of prosecution at all and there is nothing on record to connect the accused persons with the offence in question. It is further argued that the alleged recovery of articles was planted on them.
21. Per contra, Ld. Addl. PP for the State has argued that atleast the recovery of the robbed articles from accused Hardev have been proved by the police witnesses and it shows his involvement in the commission of the robbery in question.
FINDINGS OF THE COURT
22. As stated above, the accused persons are facing trial for the offence of dacoity punishable u;s 395/34 IPC and there is separate charge against accused Deepak and Monu u/s 397 IPC and against accused Hardev u/s 412 IPC.
23. In the circumstances of the case, it is only complainant Rajiv Aggarwal (PW5), his son Mohit Aggarwal (PW8) and Ms.Shivangi (PW6) who could have deposed in court as to what had actually happened on the fateful day because they were present in the house in question where the offence was allegedly committed. However, all the said witnesses have not supported the case of prosecution. They have been cross examined at length by Ld. Addl PP for the State but nothing has come out in their cross examination.
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24. Complainant Sh. Rajiv Aggarwal (PW5) has deposed that on 30/3/2013 at about 8:00 a.m. while he and his son Mohit Aggarwal were present at his house, Hardev came to his house and when he and his son were having conversation with Hardev, in the meantime 34 persons entered his house out of which one was armed with revolver and one was having a knife and the said assailants started beating him and his son Mohit as a result of which he sustained injuries on his chest and his son sustained injuries on his legs. The said assailants took his wallet and robbed him of Rs.30,000/ 40,000/ and they also robbed the wallet of his son containing his driving license, credit cards etc. Matter was informed to police and they were shifted to Maharaja Agarsen hospital.
25. Since this witness did not support the case of prosecution he was cross examined at length by Ld. Addl. PP for the State in which he denied the suggestion that Rs.5 lakhs was due towards accused Hardev and on the fateful day Hardev had demanded back the said amount but he told him that he had already supplied the goods worth Rs. Three lakhs and asked him to come over on some other day. He further denied the suggestions that in the meantime, his son Mohit also came there. He further denied the suggestion that the boys who had come with Hardev sat on a sofa and he took out a revolver and a knife and put them on a table or that he and his son Mohit were forcibly made to sign on stamp papers by Hardev and his associates. He further denied the suggestions that he was Page no. 9/15 State Vs Hardev and ors.
FIR no. 93/13PS Ashok Vihar compelled to open the briefcase and when he was opening it someone hit on his head and when his son Mohit tried to save him, they all started beating Mohit and rammed his head on the glass table. He further denied the suggestion that someone fired from the revolver in order to threaten them or that someone tried to open LPG gas cylinder in order to put them on fire. He further said that his son was beaten by the assailants who had come after Hardev and his associates had left. He further denied the suggestion that on 1/10/2013 he visited the court premises and identified accused Deepak, Aabid and Monu who was involved with accused Hardev in committing robbery. He further denied the suggestion that Hardev had taken out cash from his wallet and RC, driving license, debit card from the wallet of his son or that they had also robbed the jewellery articles. Ld. Addl. PP for the state drew the attention of the witness to all the accused, Hardev, Monu, Deepak and Aabid but the witness failed to identify them.
26. PW6 Ms. Shivangi deposed that on the fateful day while she was present in the house of his uncle Rajiv Aggarwal. 34 persons entered the house and she had not seen them prior to that day and thereafter she went to bathroom. While she was in bathroom, she heard noise of breaking of glass and also heard her cousin Mohit crying and when she came outside she came to know that her uncle Rajiv Aggarwal and her cousin Mohit had been taken to hospital and subsequently police came there and inquired from her and she told the police that she had not seen Page no. 10/15 State Vs Hardev and ors.
FIR no. 93/13PS Ashok Vihar anything as she was in bathroom.
27. PW8 Sh. Mohit Aggarwal has deposed that on 30/3/2013 he was sleeping in his house and at about 8:00 a.m. 9:00 a.m. when he heard the hue and cry and he found that 45 persons were abusing his father and he was assaulted by someone as a result he fell down on the table and sustained fracture on his left foot and he started feeling dizziness and subsequently he was shifted by his neighbour to Maharaja Agarsen Hospital.
28. Since both the said witnesses i.e. PW6 Ms. Shivangi andPW8 Sh.Mohit Aggarwal were also not supporting the case of prosecution, they have also been cross examined at length by Ld. Addl. PP for the State in which they had denied the suggestions of the court that accused Hardev and his associates had committed robbery and had caused injuries on the person of Rajiv Aggarwal and Mohit Aggarwal. Both the said witnesses have failed to identify the accused persons even their attention was drawn to the accused by Ld. Addl. PP for the State.
RECOVERY OF CERTAIN ROBBED ARTICLES FROM ACCUSED HARDEV
29. As per the case of the prosecution, after his arrest in this case, accused Hardev led the police party to his house bearing no. 1547, Sector 4, Gurgaon, Haryana and got recovered one card of CA membership, one driving license, one RC, one credit card Page no. 11/15 State Vs Hardev and ors.
FIR no. 93/13PS Ashok Vihar of SBI, one card of Oriental Commerce, one debit card of PNB, one debit card of Union Bank of India, one card of HDFC bank and one card of J& K Bank, all belonging to Mohit Aggarwal and one sim card of Airtel and two sim cards of Reliance belonging to the complainant Sh. Rajiv Aggarwal which were allegedly the robbed articles. The said articles were seized by the police vide seizure memo ExPW4/K. It is the case of the defence that the said articles were planted upon accused Hardev and there was no recovery from his house as alleged. As discussed above, all the public witnesses including the complainant have not supported the case of the prosecution. Complainant Sh. Rajiv Aggarwal (PW5) has specifically deposed that accused Hardev had nothing to do with the incident in question and while he was present in his house at that time, certain assailants stormed his house and committed the offence in question. When the public witnesses have not alleged anything against accused Hardev, the recovery of the said articles become highly doubtful. Moreover, the alleged recovery took place after about 6 months of the incident. It is highly improbable that even after about 6 months of the incident, he would keep the said robbed articles including credit card etc. at his house. It is not the case of the prosecution that any of the said credit cards, debit cards were used by any person during this period. Further, no public witness was joined by the investigating agency inspite of knowing in advance that accused was leading the police party for making recovery of properties from his house. In Ritesh Chakarbarthy vs. State of Madhya Page no. 12/15 State Vs Hardev and ors.
FIR no. 93/13PS Ashok Vihar Pradesh 2006 (3) JCC (Narcotics) 150 Hon'ble Supreme Court had deprecated the practice of the investigating officials not joining the public persons in such proceedings. In two other judgments pronounced in cases titled as Anup Joshi vs. State 1992 (2) CC cases 314 and Roop Chand vs. State of Haryana 1991 (1) CLR 69 it has been observed by Hon'ble High Courts that the failure to proceed against the public persons who refused to join the investigation, in suggestive of the fact that the explanation of not joining of witnesses from the public is an after thought and is not worthy of credence. In the present case it is not even deposed by the police officials that they even made any effort to join the public witnesses when the accused was leading the police party to his house. In the totality of the circumstances, the chance of planting the said articles on accused Hardev cannot be ruled out.
CONCLUSION
30. The testimony of the remaining witnesses, apart from complainant and his relatives i.e. PW5, PW6 and PW8 as discussed above, only relates to the medical examination of the injured and the investigation conducted by the police officials and the testimony of the said witnesses is of no help to the prosecution, in view of the above, in proving its case.
31. In case titled Sohan and Another Vs. State of Haryana and Another (2001) 3 SCC 620 it has been observed by Page no. 13/15 State Vs Hardev and ors.
FIR no. 93/13PS Ashok Vihar Hon'ble Supreme Court that :
"An accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty, is on the prosecution and that the prosecution has to establish its case beyond all reasonable doubts. In other words, the innocence of an accused can be dispelled by the prosecution only on establishing his guilt beyond all reasonable doubts on the basis of evidence".
32. In case titled Sharad Birdhichand Sarda AIR 1984 SC 1622 it has been observed by Hon'ble Supreme Court that:
"Where on the evidence two possibilites were available, one which went in the favour of the prosecution and the other which benefited the accused, the accused was undoubtedly entitled to the benefit of doubt. The principle had special relevance where the guilt of the accused was sought to be established by evidence."
33. In AIR 1974 SC 21 Hon'ble Supreme Court while observing on appreciation of evidence ruled that "although court should disengage truth from falsehood but if they are so inextricably mixed up down to the core that disengagement is impossible, court can reject evidence in toto."
34. Applying the above principles of law to the facts of the present case, it is evident that the prosecution has failed to Page no. 14/15 State Vs Hardev and ors.
FIR no. 93/13PS Ashok Vihar prove and establish its case beyond reasonable doubt and hence all the accused are acquitted from the charges framed against them.
35. The accused persons were directed to furnish personal bond in the sum of Rs.10,000/ with one surety in the like amount u/s 437A CrPC. Accused Monu stated that he is in JC and he is not in a position to arrange surety u/s 437A CrPC and hence his personal bond may be accepted. Hence, his personal bond u/s 437A CrPC was furnished and accepted. The remaining accused persons have sought time to file bond u/s 437A CrPC and the matter be taken up on 19/12/2017 for the same.
Announced in the open court on this 18th day of December, 2017 (Deepak Garg) ASJII, NorthWest Rohini: Delhi Page no. 15/15