Delhi District Court
State vs . Ajay & Anr. on 19 November, 2015
1
IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE
(SOUTHWEST)02, DWARKA COURTS:DELHI
(Sessions Case No. 17/12)
Unique ID case No.02405R019382012
State Vs. Ajay & Anr.
FIR No. : 247/11
U/s : 302/307/392/397/411/34 IPC
P.S. : Sagarpur
State Vs. Ajay
S/o Sh. Ram Avtar
R/o C18, Syndicate Enclave,
Near Subzi Mandi, Dabri
Delhi.
Also at:
Village Paroli, PO: Bisoli
PS: Bisoli, District Badaiun (UP)
Deepak Singh
S/o Sh. Vikram Singh
R/o RZ69, Chanakya Palace, PartII,
Gali No. 2, Uttam Nagar,
New Delhi.
Date of institution of case31.01.2012
Date on which, judgment have been reserved16.10.2015
Date of pronouncement of judgment09.11.2015
JUDGEMENT:
In the present case on 11.10.2011, on receipt of DD No. 12A regarding the serious condition of labourer at H. No. RA7A, Gali No. 3, Raghu Nagar, ABlock, Dabri, SI Pramod Kumar alongwith Ct. Bhupesh reached at the spot at SC No. 17/12 1/22 2 36A, Gali No. 3, Raghu Nagar, New Delhi, where they came to know that one Nagesh was working as a Chowkidar at the above said under construction house and he had sustained injuries during the night and had been removed to DDU hospital by PCR vehicle. Accordingly, leaving the Ct. Bhupesh at the spot, SI Pramod went to DDU hospital, where injured Nagesh was found admitted in unconscious state. No eye witness was found and accordingly, SI Pramod came back at the spot, where he came to know that other Chowkidars Santosh and Ramu have also been injured at under construction houses bearing H.No. 29A and 30, gali no. 4, Raghu Nagar, Delhi. At the above under construction houses, blood was found scattered on the cot and nearby and no eye witness was found. Thereafter, SI Pramod Kumar prepared a tehrir (Ex. PW10/A) and sent the same to PS Sagarpur through Ct. Bhupesh for registration of the case and accordingly the present case bearing FIR No. 247/11 u/s 308 IPC was registered at PS Sagarpur and the investigation was assigned to SI Pramod Kumar. On 13.10.2011, injured Nagesh died and after further investigation, Section 302/397/412/34 were added in this case and the investigation was assigned to Insp. Kamaldeep Singh. After completion of investigation, the chargesheet was filed before the court concerned.
In brief, case of the prosecution is that in the night intervening 10/11.10.2011, at H. No. 28A, gali no. 4, Raghu Nagar, Delhi within the jurisdiction of PS Sagarpur, accused Ajay alongwith his coaccused Vicky (JCL) and Satish (JCL) {since both reported to be facing trial before the Juvenile Justice Board}, in furtherance of their common intention, committed murder of Santosh. It is further stated that in the night intervening 10/11.10.2011, at H. No. 36, gali no. 3, Raghu Nagar, Delhi within the jurisdiction of PS Sagarpur, accused Ajay alongwith his coaccused Vicky (JCL) and Satish (JCL), in furtherance of their common intention, also committed murder of one Nagesh. It is also stated that in the night intervening SC No. 17/12 2/22 3 10/11.10.2011, at H. No. 30A, gali no. 4, Raghu Nagar, Delhi within the jurisdiction of PS Sagarpur, accused Ajay alongwith his coaccused Vicky (JCL) and Satish (JCL), in furtherance of their common intention, caused such bodily injuries on the person of injured Ram Lochan @ Ramu with such intention or knowledge and under such circumstances that if by that act, they had caused death, they would have been guilty of murder. It is stated that on the above said date, time and place, accused Ajay alongwith his coaccused Vicky (JCL) and Satish (JCL), in furtherance of their common intention, robbed deceased Santosh and Nagesh and injured Ram Lochan @ Ramu and while committing the said robbery, they used deadly weapons and committed murder of Santosh and Nagesh and also attempted to commit murder of Ram Lochan @ Ramu. It is also stated that on 17.10.2011, accused Deepak was found in possession of one mobile phone set make Nokia Express, which was robbed from deceased Santosh in the night intervening 10/11.10.2011 and accused Deepak dishonestly received or retained the said mobile handset knowing or having reason to believe the same to be stolen/robbed property.
2. On completion of the investigation, the charge sheet was filed. After committal, the arguments on the point of charge were heard and on the basis of the material on record, charge for committing the offence punishable u/s 302/34 IPC, u/s 307/34 IPC, u/s 392/34 IPC and u/s 397 IPC was framed against accused Ajay by the Ld. Predecessor of this court, to which the said accused pleaded not guilty and claimed trial. In addition to this, charge for committing the offence u/s 411 IPC was also framed against accused Deepak by the Ld. Predecessor of this court, to which the said accused pleaded not guilty and claimed trial.
3. In support of its case, the prosecution has examined witnesses i.e PW1 SC No. 17/12 3/22 4 to PW28.
PW1 Ct. Satyaveer Yadav deposed that on 11.10.2011, he was posted at Police Control Room, PHQ and on that day at about 7:09 AM, he received a call regarding seriously injured labourer at under construction building and he recorded the said information and filled up PCR form and he has proved the same as Ex. PW1/A. PW2 Dr. Mukul Kumar Mangla has proved the MLC No. 180150/11 in respect of one Santosh Kumar prepared by Dr. Purnendu Deo as Ex.PW2/A. PW3 Dr. Chetan Kumar conducted the postmortem on the body of one Nagesh and he was of the opinion that cause of death was due to cranio cerebral injury as a result of blunt force impact and he has proved his report in this regard as Ex. PW3/A. PW4 Sh. Devender Ahuja deposed that in October, 2011, some construction work was going on at H. No. 36A, gali no. 3, Raghu Nagar, New Delhi, where he had deputed watchman Nagesh (since deceased) and at about 6:006:30 a.m, he received information that some one had hit Nagesh and accordingly he reached at the spot and PCR van had already came there and injured was taken to DDU hospital in PCR and he had accompanied him and after primary checkup, Nagesh was referred to Safdarjung hospital. PW4 further deposed that he does not know who had caused injuries to Nagesh, however Nagesh had told him that he had objected to some boys who were stealing the goods from the plot.
PW5 Sh. Pawan Singh, Nodal Officer, Idea Cellular Ltd produced the relevant record in respect of mobile phone no. 9990431011 & 9990324480 for the period of 01.10.2011 to 17.10.2011 and 01.10.2011 to 15.10.2011 and he deposed that as per their record, the above said mobile phone no. 9990431011 was issued in the name of Deepak S/o Sh. Bhikam Singh and mobile phone no. 9990324480 was SC No. 17/12 4/22 5 issued in the name of Santosh S/o Sh. Thakur Prasad and he has proved Customer Application Form and ID proof in respect of the said mobile phones as Ex. PW5/A, Ex. PW5/B, Ex. PW5/C and Ex. PW5/D respectively. PW5 has further proved the call detail record for the above said period as Ex. PW5/E and certificate u/s 65B of Indian Evidence Act in respect of the said call details as Ex. PW5/G and Ex. PW5/H respectively.
PW6 Sh. Bhushan Goyal deposed that in the month of October, construction was going on at his house at RZ30A, Raghu Nagar, New Delhi and watchman Ramu was looking after the site. He further deposed that on 11.10.2011, he came to know that someone has caused injuries on the head of Ramu and he was unconscious and accordingly he reached at the spot and took him to DDU hospital in his car. He also deposed that he does not know who had caused injuries to watchman Ramu, however Ramu had told him on the previous day of the incident that some hot conversation had taken place between him and some boys.
PW7 Dr. Deepshikha examined the patient Ramu on 11.10.2011 vide MLC No. 20958 and has proved copy of the same as Ex. PW7/A. PW8 Sh. Rajeev Kakkar deposed that on 11.10.2011, his brother Sh. Pawan Kakkar had returned afer morning walk at about 7:00 AM and he informed him that some injured person was lying on a cot in an under construction plot and accordingly, he alongwith his brother reached there and found that one unknown person was lying on a cot and was having injury mark in his head. PW8 further deposed that he informed the police on 100 number from mobile phone of his brother and the owner of the plot had also come there and PCR van shifted the injured to the hospital.
PW9 Sh. Pradeep Kumar Jha deposed that deceased Santosh was his cobrother and working as a watchman in the area of Raghu Nagar on an under SC No. 17/12 5/22 6 construction plot and on 11.10.2011, Santosh was got admitted in the hospital after being injured in some quarrel and at that time, he was in Bihar. PW9 further deposed that on 16.10.2011, he came to know on telephone regarding the death of deceased Santosh and he went to DDU hospital and other relatives of the deceased were also present there and doctor handed over the dead body of deceased to them. He further deposed that doctor had not informed the police about the death and thereafter they took the dead body for cremation and photocopy of the receipt of cremation registration was given by him to the IO.
PW10 SI Pramod Kumar is the initial IO of this case and he has deposed about the investigation carried out by him till the time the investigation was assigned to the main IO Insp. Kamaldeep Singh.
PW11 Sh. Laxminnarayan deposed that he does not remember the exact date and month, however about two years earlier at about 9:0010:00 AM, he saw that many public persons had gathered in gali no. 4 near under construction house near Raghubir Nagar, Delhi and the said house was belonging to Sh. S.P.Bhalla. He further deposed that he saw that the watchman namely Santosh was lying in injured condition and he was having injuries on his head and was unconscious. PW11 also deposed that someone has informed the ambulance and an ambulance van came at the spot and injured Santosh was taken to DDU hospital and he accompanied him and from DDU hospital, he was referred to Safdarjung hospital and was got admitted there.
PW12 Sh. Satya Pal Bhalla deposed that in the year 2011, his house was under construction and deceased Santosh was working as watchman in the said under construction house and one day in the month of October 2010 his said watchman told him that some boys came at his house and an altercation took place between him and those boys on the issue of keeping some goods and he made him SC No. 17/12 6/22 7 understand not to quarrel with those boys and instructed him to tell him, if they come again. PW12 further deposed that on 11.10.2011, he alongwith one rickshaw puller namely Jeet Ram went to his under construction house and on reaching there, he came to know from some public persons that some boys gave beatings to Santosh and he had been shifted to DDU hospital by some person and accordingly he went to DDU hospital and at that time Santosh was unconscious and after sometime he received message regarding his death.
PW13 ASI Yad Ram recorded DD No. 26A and DD No. 28A at PS Sagarpur on 11.10.2011 and deposed that both the said DDs were handed over to SI Pramod Kumar, who was the IO of this case.
PW14 Sh. Pradeep Kumar deposed that he was working as helper at plot No. 29A, gali no. 4, Raghu Nagar and deceased was working as watchman and on 11.10.2011 when he came to the plot, he found that Santosh was lying on the cot having injuries in his head and ambulance came and deceased was taken to DDU hospital and from there he was taken to Safdarjung hospital, where he was got admitted. PW14 also deposed that on 16.10.2011 he came to know that Santosh has expired and he reached hospital and other relatives of the deceased were also present there and after postmortem, the dead body was received by the relatives of the deceased and he was cremated at Nigam Bodh Ghat.
PW15 Ct. Hardeep Singh deposed that on 23.11.2011, he prepared the scaled site plan at the instance of SI Pramod Kumar and Insp. Kamaldeep Singh and he has proved the same as Ex. PW15/A. PW16 HC Dashrath deposed that on 11.10.2011, IO SI Pramod Kumar deposited 10 to 12 pullandas alongwith two folding cots in sealed condition with the seal of PK in the Malkhana vide entry no. 683/11 in register no. 19 and he has proved the said entry as Ex. PW16/A. PW16 further deposed that on 13.10.2011, SI SC No. 17/12 7/22 8 Pramod Kumar deposited the blood gauze and sample seal of Safdarjung hospital in the Malkhana vide entry no. 690/11 in register no. 19 and he has proved copy of the same as Ex. PW16/B. He further deposed that on 17.10.2011, Insp. Kamal Deep deposited three blood sample duly sealed with the seal of CMO DDU hospital alongwith three sample seals and one iron rod, one blood stained diary, one voucher delivery challan, seven receipts of Shiv Shakti material duly sealed with the seal of KD and he deposited all these items against entry no. 695 A in register no. 10 and he has proved copies of the same as Ex. PW16/C. PW16 also deposed that on 19.10.2011, Insp. Kamal Deep also deposited one sealed pullanda of clothes duly sealed with the seal of KDS in the Malkhana vide entry no. 699/11 and he has proved the copy of the same as Ex. PW16/D. He further deposed that on 03.01.2012, he sent all the pullandas to FSL, Rohini through SI Pramod Kumar vide RC No. 90/21/12 and he has proved copy of the said RC as Ex. PW16/E. PW16 also deposed that on 09.12.2011 on the instructions of the IO, he sent the recovered rod to the hospital through HC P. Puttannja vide RC No. 82/21/11 and he has proved copy of the same as Ex. PW16/F. PW17 Dr. Arun Singh has proved the MLC No. 20956 of one Nageesh, prepared by Dr. Narender as Ex. PW17/A. PW18 HC Kehari Singh had recorded DD No. 12A and has proved copy of the same as Ex. PW18/A. PW19 HC Kishsore Kumar has recorded the formal FIR No. 247/11 of this case and he has proved copy of the FIR as PW19/A and endorsement on the rukka as Ex. PW19/B. He has also proved the DD No. 26A and DD No. 28A as Ex. PW19/C and Ex. PW19/D respectively.
PW20 Ct. Dharam Raj joined the investigation of this case alongwith SI Pramod Kumar and his testimony is almost on the similar lines as that of PWIO SC No. 17/12 8/22 9 SI Pramod Kumar.
PW21 ASI Khazan Singh from mobile crime team inspected the spot on 11.10.201 and has proved his report in this regard as Ex. PW21/A. PW22 SI Krishan Kumar deposed that on 17.10.2011, Insp. Kamal Deep handed over the custody of one juvenile Satish to him and he conducted inquiry in connection with the juvenile and prepared documents and after getting him medically examined, he lodged him in Sewa Kutir.
PW23 Sh. Sachin Nagwanshi identified the dead body of his uncle Sh. Nagesh vide identification statement Ex. PW23/A. PW24 Sh. Ganesh Nagwanshi identified the dead body of his brother Nagesh on 13.10.2011 and after postmortem, the dead body was handed over to him for cremation.
PW25 Sh. Ram Lochan is injured in this case and he resiled from his earlier statement and does not support the case of the prosecution.
PW26 Ct. Bhupesh deposed that on 11.10.2011 on receipt of one call , he alongwith SI Pramod Kumar went to the spot i.e. RZ7, Gali lNo. 3, H. no. 36, Raghu Nagar, where crowd was gathered. He further deposed that on local inquiry, they came to know that injured Nagesh had already been taken to DDU hospital by the PCR and after sometime he returned from the hospital and Insp. Anil Kumar, Insp. Kamal Deep and Insp. Renu Sharma and ACP M.S. Dabas had already reached there and SI Pramod Kumar gave him a tehrir and sent him to PS for getting the case registered and returned to the spot and handed over copy of the FIR and original rukka to SI Pramod Kumar. PW26 further deposed that the crime team had reached at the spot and ASI Khazan Singh, Incharge of crime team inspected the spot and Ct. Arun Kumar, photographer of the crime team took the photographs. PW26 also deposed that thereafter he alongwith SI Pramod Kumar went to H. No. 36A, 28A SC No. 17/12 9/22 10 and 30A, gali no. 3, Raghu Nagar, where IO seized one folding cot and blood stained earth and earth control, blood stained shirt, two lungis ( wrapper ) vide seizure memo Ex. PW10/C, Ex. PW10/D and Ex. PW10/E to Ex. PW10/K and thereafter they returned to the PS and case property were deposited in the Malkhana and his statement was recorded by the IO.
In the instant case, the perusal of the record reveals that three witnesses i.e. HC P. Puttananja, ASI Jitender Prakash and Insp. Kamal Deep Singh have been inadvertently numbered as PW27 in this case by the Ld. Predecessor of this court. In these circumstances, in order to avoid any confusion, hereinafter HC P Puttananja is being referred as PW27A, ASI Jitender Prakash is being referred as PW27B and Insp. Kamal Deep Singh is being referred as PW27.
PW27A HC P.Puttananja deposed that on 09.12.2011, on the directions of the IO Insp. Kamal Deep Singh, he received one sealed parcel through RC No. 82/21 from the MHC (M) for depositing the same with the concerned authority at Safdarjung hospital and brought copy of RC from Safdarjung hospital and deposited with the MHC (M). He further deposed that on 13.12.2011 on the directions of Insp. Kamal Deep Singh, he went to Forensic Department of Safdarjung hospital, where the official handed over to him the sealed parcels alongwith sample seal and expert opinion qua the iron rod and he brought the said articles and handed over the same to the MHC (M) and also handed over expert opinion to the IO.
PW27B ASI Jitender Prakash produced the negatives of the photographs, taken in this case by Ct. Anil Kumar and proved the photographs as Ex. PW27/A1 to Ex. PW27/A13 and negatives as Ex. PW27/B (colly.).
PW27 Insp. Kamal Deep Singh is the main IO of the case and he has deposed about the investigation carried out by him in this case.
PW28 Ms. Manisha Upadhyaya, Sr. Scientific Officer (Biology), FSL SC No. 17/12 10/22 11 examined the exhibits of this case biologically as well as serologically and she has proved her biological report of analysis as Ex. PW28A and serological report as Ex. PW28/B.
4. After recording of prosecution evidence, statement of accused Ajay and Deepak u/s 313 Cr.PC were recorded, wherein all the incriminating evidence was put to the accused persons, which they denied as incorrect. Accused Ajay and Deepak claimed to be innocent and stated that they have been falsely implicated in this case. Accused Deepak stated that he does not want to lead any DE and accused Ajay stated that he wants to lead evidence in his defence.
5. In his DE, accused Ajay has examined himself as DW1. He has also examined DW2 Sunita and DW3 Akash in his defence.
6. I have heard the arguments put forward by Ld. Addl. PP and Ld.defence counsels for the accused persons and have carefully gone through the record of the case. I have also carefully considered the evidence adduced on behalf of the prosecution in support of its case and by the accused Ajay in his defence.
7. It has been submitted by Ld. Addl. PP that in view of the evidence adduced on record, the prosecution has been successful in proving on record the guilt of the accused persons beyond the reasonable doubt. It is further submitted that prosecution has been successful in proving on record that in the night of the incident , accused Ajay alongwith his coaccused Vicky (JCL) and Satish (JCL) , in furtherance of their common intention, committed murder of Santosh and Nagesh and they also attempted to commit the murder of Ram Lochan @ Ramu. It is submitted that SC No. 17/12 11/22 12 prosecution has also been able to establish on record that at that time , accused Ajay alongwith his coaccused Vicky (JCL) and Satish (JCL), in furtherance of their common intention, robbed deceased Santosh and Nagesh and injured Ram Lochan @ Ramu and while committing the said robbery, they used deadly weapons and committed murder of Santosh and Nagesh and also attempted to commit murder of Ram Lochan @ Ramu. It is submitted that prosecution has also been successful in proving on record that on 17.10.2011, accused Deepak was found in possession of one mobile phone set make Nokia Express, which was robbed from deceased Santosh in the night intervening 10/11.10.2011 and the said accused dishonestly received or retained the said mobile handset knowing or having reason to believe the same to be stolen/robbed property. Ld. Addl. PP also submitted that in view of the evidence and material brought on record by the prosecution, the guilt of the accused persons have been proved beyond the reasonable doubts and he prayed that both the accusedAjay and Deepak may be convicted of the respective charged offences.
8. On the other hand, it has been submitted by the Ld. defence counsel for accused Ajay that the prosecution has miserably failed to prove the guilt of the said accused beyond the reasonable doubts. It is further submitted that accused Ajay was innocent and have been falsely implicated in this case, although he has nothing to do with the offences alleged in the instant case. It is submitted that the material prosecution witness i.e PW25 Ram Lochan does not support the case of the prosecution and the remaining witnesses were interested witnesses being the police officials. It is further submitted that the evidence brought on record by the prosecution was self contradictory and there were various loopholes and contradictions/discrepancies in the testimonies of various prosecution witnesses, which were fatal to the case of the prosecution. It is submitted that nothing was SC No. 17/12 12/22 13 recovered from or at the instance of accused Ajay and the alleged recovery have been planted upon him. Ld. defence counsel also submitted that prosecution has miserably failed to bring home the guilt against the accusedAjay and he prayed that the accusedAjay may be acquitted of the charged offences.
Further, Ld. Defence counsel for accused Deepak submitted that the prosecution has failed to prove the guilt of the said accused on record, beyond the reasonable doubt. It is further submitted that prosecution has failed to bring on record any evidence, circumstantial or otherwise, to show that accused Deepak had dishonestly received or retained the mobile hand set in question knowing or having reason to believe the same to be the stolen property . It is submitted that the guilt of the accused Deepak has not been conclusively proved on record by the prosecution and it has been prayed that accused Deepak may be acquitted of the charged offences.
9. I have carefully considered the submissions made by Ld. Addl. PP for the State and Ld. defence counsels for the accused persons and have carefully gone through the record of the case. I have also carefully considered the evidence adduced on behalf of the prosecution in support of its case and by the accused Ajay in his defence.
10. In the present case, accused - Ajay have been charged for committing the offences punishable u/s 302/34 IPC, u/s 307/34 IPC , u/s 392/34 IPC & U/s 397 IPC and accused Deepak have been charged for committing the offence punishable u/s 411 IPC by the Ld. Predecessor of this court.
In brief, the case of the prosecution is that in the night intervening 10/11.10.2011, at H. No. 28A, gali no. 4, Raghu Nagar, Delhi within the jurisdiction SC No. 17/12 13/22 14 of PS Sagarpur, accused Ajay alongwith his coaccused Vicky (JCL) and Satish (JCL) {since both reported to be facing trial before the Juvenile Justice Board}, in furtherance of their common intention, committed murder of Santosh. It is further stated that in the night intervening 10/11.10.2011, at H. No. 36, gali no. 3, Raghu Nagar, Delhi within the jurisdiction of PS: Sagarpur, accused Ajay alongwith his coaccused Vicky (JCL) and Satish (JCL), in furtherance of their common intention, also committed murder of one Nagesh. It is also stated that in the night intervening 10/11.10.2011, at H. No. 30A, gali no. 4, Raghu Nagar, Delhi within the jurisdiction of PS Sagarpur, accused Ajay alongwith his coaccused Vicky (JCL) and Satish (JCL), in furtherance of their common intention, caused such bodily injuries on the person of injured Ram Lochan @ Ramu with such intention or knowledge and under such circumstances that if by that act, they had caused death, they would have been guilty of murder. It is stated that on the above said date, time and place, accused Ajay alongwith his coaccused Vicky (JCL) and Satish (JCL), in furtherance of their common intention, robbed deceased Santosh and Nagesh and injured Ram Lochan @ Ramu and while committing the said robbery, they used deadly weapons and committed murder of Santosh and Nagesh and also attempted to commit murder of Ram Lochan @ Ramu. It is also stated that on 17.10.2011, accused Deepak was found in possession of one mobile phone set make Nokia Express, which was robbed from deceased Santosh in the night intervening 10/11.10.2011 and accused Deepak dishonestly received or retained the said mobile handset knowing or having reason to believe the same to be stolen/robbed property.
11. In the present case, accused - Ajay have been charged for committing the offences punishable u/s 302/34 IPC, u/s 307/34 IPC , u/s 392/34 IPC & U/s 397 IPC by the Ld. Predecessor of this court.
SC No. 17/12 14/22 15The main witness examined by the prosecution in this case is PW25 Sh. Ram Lochan, who was injured in this case and this witness i.e PW25 resiled from his earlier statement and does not support the case of the prosecution and was cross examined by the Ld. Addl. PP for State.
In his cross examination by the Ld. Addl. PP, PW25 stated that he do not know whether police had recorded his statement . He denied the suggestion that IO had recorded his statement on 28.12.2011. PW25 stated that he did not tell the police that during those days he was working as guard at RZ30A, Gali No.4 Raghu Nagar, Sagar Pur and his known persons namely Nagesh and Santosh were also working as guard in adjoining plots. He further stated that he did not tell that about 3:00 a.m , he felt some noise and he woke up and he saw that two persons namely Ajay and Satish were checking his pockets and one Vicky was standing near them or that all of whom, he knew previously as they used to roam in the area and they used to commit theft of small items and were habitual of taking drugs or that he had already scolded them earlier for their such activities and they had threatened him. PW25 stated that he did not tell the police that when he inquired from them as to why they were there, the boys namely Satish and Ajay pushed him and Vicky gave a blow of iron rod on his head and he was stating that as he used to scold them so they had to finish him. He further stated that he did not tell the police that when he was in the process of being unconscious, they took out his money from his pocket and when ran away from there, he became unconscious and was taken to the hospital and on 28.12.2011, IO recorded his statement.
In his cross examination by the Ld. Addl. PP, PW25 denied the suggestion that accused Ajay was amongst those three boys, who had assaulted on him or that he had seen the accused while taking out money from his pocket or that the associate of accused Ajay had assaulted on his head. He further denied the SC No. 17/12 15/22 16 suggestion that he was working as guard and Nagesh and Santosh were also working as guard. PW25 denied the suggestion that accused Ajay had assaulted him as well as Nagesh and Santosh in order to take out money from their pockets. He further denied the suggestion that he had seen the accused Ajay alongwith his associates at the spot while assaulting them. PW25 denied the suggestion that he was deposing falsely as he have been won over by the accused.
The important fact is that prosecution has been mainly relying upon the abovesaid witness i.e PW25 Sh. Ram Lochan to prove its case on record, however this witness PW25 resiled from his earlier statement and does not support the case of the prosecution and has infact, demolished the case of the prosecution. Further, the remaining public witnesses examined by the prosecution i.e PW4 Sh. Devender Ahuja, PW6 Sh. Bhushan Goyal, PW8 Sh. Rajeev Kakkar, PW9 Sh. Pradeep Kumar Jha, PW11 Sh. Laxminarayan, PW12 Sh. Satya Pal Bhalla, PW14 Sh. Pradeep Kumar, PW23 Sh. Sachin Nagwanshi, PW24 Sh. Ganesh Nagwanshi are formal witnesses and their testimonies are not of much use to the prosecution as admittedly none of these witnesses have deposed anything against accused persons. In fact, none of these witnesses were eye witness to the alleged incident and hence their testimonies are not of any use to the prosecution.
12. Further in view of the testimonies of various prosecution witnesses, the only other incriminating evidence appearing on record against the accused Ajay is that he got recovered one polythene which was containing one blood stained diary, voter I.D Card of deceased Santosh, one visiting card, one small envelope containing four passport size photographs, one delivery challan, seven receipts of Shiv Shakti Traders and said articles were seized by the IO vide memo Ex. PW20/G, as is evident from the testimony of, PW10 SI Parmod Kumar, PW20 Ct. Dharam Raj & SC No. 17/12 16/22 17 PW27 Insp. Kamal Deep Singh, however there are material contradiction/ discrepancies in the testimonies of the above said witnesses regarding the alleged recovery at the instance of accused Ajay and these contradiction/ discrepancies are fatal to the case of the prosecution .
PW20 Ct. Dharam Raj stated that accused Ajay out of the garbage near the mother diary had taken out one polythene . He do not remember whether IO prepared any site plan at the time of recovery of these articles. Whereas on the other hand, IO PW27 Insp. Kamal Deep Singh stated that he searched the garbage for the purpose of recovery of transparent poly bag containing blood stained diary, envelope containing the above said articles and he did not prepare any site plan of the place of recovery and no photographs were taken at the place of recovery. In these circumstances, there are material contradictions regarding the alleged recovery of polythene containing above mentioned articles as PW20 Ct. Dharam Raj stated that it was accusedAjay who tookout the polythene from the garbage near the mother diary, whereas PW27 Insp. Kamal Deep Singh stated that he searched the garbage for the purpose of recovery of transparent poly bag containing the said articles and PW10 SI Pramod Kumar stated that Insp. recovered the articles at the instance of accused, however this fact is not corroborated by the other prosecution witnesses.
In addition to above, it has been stated by the IO PW27 Insp. Kamal Deep Singh that no public person was present nearby at the time of said recovery and he admitted that there were residential houses at a distance of 500 mtrs from the place of recovery and he did not call any public person from those houses to join the investigation at that time. In these circumstances, it is evident that no efforts were made to join any public person at the time of alleged recovery and non joining SC No. 17/12 17/22 18 of any public person also vitiates the alleged recovery as has been laid down in the case reported as 1997 IX AD SC 361.
In the above said case, titled as " State of Punjab Vs. Sarup Singh (cited as 1997 IX AD SC 361)", it has been laid down by the Hon'ble Supreme Court of India that : " After going through the evidence what we find is that the recovery of money and the wrist watch stated to be of the deceased were recovered by the investigating Officer in presence of Amar Singh PW10 Maternal grandfather of the deceased. Thus , the recovery was not in presence of any independent person. It was for this reason that the High Court did not think it safe to place any reliance on the recovery evidence."
In the instant case, the alleged recovery was effected only in the presence of the police officials and no independent public person was not present at that time , which makes the alleged recovery all the more doubtful . Further, it is pertinent to note that in the instant case, the incident had taken place in the night intervening 10/11102011 and the alleged recovery has been effected on 17.10.2011 and that to from an open public place i.e garbage behind mother dairy booth no. 146 near Dabri Bus Stand and though the alleged articles were stated to be kept in a polythene bag, yet the recovery was effected from open and accessible public place and therefore, cannot be fastened upon the accused in robotic and mechanical manner. When the recovery of incriminating article is made from an open and accessible place with no corroboration from neutral corner, it is difficult to hold irrefutably that the accused was in possession of the same to the exclusion of all others. Even otherwise, no evidence whatsoever have brought on record to SC No. 17/12 18/22 19 prove that the articles of the deceased allegedly got recovered by the accusedAjay in fact belonged to the deceased and this fact again is fatal to the case of the prosecution.
13. Hence, in view of the above discussion & observations and having regard to the fact and circumstances of the present case, I am of the considered opinion that the prosecution has failed to prove the guilt of the accused Ajay on record, beyond the reasonable doubts. Accordingly , I acquit the accused Ajay of the charged offences, giving him the benefit of doubt.
14. Further as far as accused Deepak is concerned , this accused has been charged for committing the offence punishable u/s 411 IPC by the Ld. Predecessor of this court.
It is being submitted on behalf of the prosecution that accused Deepak was found retaining one mobile make Nokia hand set which was robbed from the deceased Santosh and he received or retained the said mobile hand set knowing or having reasons to believe the same to be a stolen property. Whereas on the other hand, it has been submitted on behalf of the accused Deepak that he has nothing to do with alleged offence and that alleged recovery was planted and that he was lifted on 12.10.2011 and was detained illegal custody by the ATS prior to alleged formal arrest in this case .
In regard to the above said recovery of the mobile, in his testimony PW20 Ct. Dharam Raj has stated that accused Deepak made disclosure statement Ex. PW20/J and mobile phone was recovered from the said accused vide memo Ex. PW20/P. Further, PW27 Insp. Kamal Deep Singh stated that accused Deepak was SC No. 17/12 19/22 20 found using mobile instruments pertaining deceased Santosh from 13.10.2011 onwards as was evident from the CDR of the said mobile numbers.
Further, the case of the prosecution regarding the recovery of mobile hand set from accused Deepak is also corroborated by the testimony of PW5 Sh. Pawan Singh, Nodal Officer, Idea Cellular Ltd., who had produced the relevant record in respect of mobile phone no. 9990431011 & 9990324480 for the period of 01.10.2011 to 17.10.2011 and 01.10.2011 to 15.10.2011 and he deposed that as per their record, the above said mobile phone no. 9990431011 was issued in the name of Deepak S/o Sh. Bhikam Singh and mobile phone no. 9990324480 was issued in the name of Santosh S/o Sh. Thakur Prasad and he has proved Customer Application Form and ID proof in respect of the said mobile phones as Ex. PW5/A, Ex. PW5/B, Ex. PW5/C and Ex. PW5/D respectively. PW5 has further proved the call detail record for the above said period as Ex. PW5/E and certificate u/s 65B of Indian Evidence Act in respect of the said call details as Ex. PW5/G and Ex. PW5/H respectively.
The important fact is that the aforesaid witnesses PW5 Sh. Pawan Singh, Nodal Officer, Idea Cellular Ltd has not been cross examined on behalf of the accused Deepak despite opportunity being given and the main recovery witnesses i.e PW10 SI Pramod Kumar , PW20 Ct. Dharam Raj and PW27 Insp. Kamal Deep Singh were cross examined by the ld. defence counsel, but nothing material has come on record which could assail the credibility or trustworthiness of these witnesses or which could be of any help to the accused Deepak.
In his cross examination by the ld. defence counsel, PW10 denied the suggestion that accused Deepak was not arrested in the manner as narrated in the chargesheet. He also denied the suggestion that recovery against the accused was SC No. 17/12 20/22 21 planted or that no recovery have been effected at their instance. Further in his cross examination by the ld. Defence counsel, PW20 Ct. Dharam Raj denied the suggestion that no recovery was effected at the instance of accused or from his possession or that he was deposing falsely. Apart from this, in his cross examination by the Ld. Defence counsel PW27 stated that accusedDeepak produced mobile phone and it was taken in to possession vide seizure memo and the said mobile phone did not from the part of personal search of accused Deepak. PW27 further denied the suggestion that mobile phone was not recovered from the possession of accused Deepak in the above stated manner or that accused Deepak was not arrested from his house. PW27 further stated that he got the mobile phone recovered from the accused Deepak verified from the concerned mobile phone company and came no know that the SIM card which was being used in the said phone was issued in the name of deceased Santosh. PW27 denied the suggestion that accused Deepak has been falsely implicated in this case . He further denied the suggestion that nothing was recovered from the accused and all the recoveries were planted upon him. PW27 also denied the suggestion that he was deposing falsely.
Hence, in view of the above and in view of the material/evidence on record, the prosecution has been successful in proving on record beyond the reasonable doubt that on 17.10.2011, accused Deepak was found in possession of one mobile phone set make Nokia Express, which was robbed from deceased Santosh in the night intervening 10/11.10.2011 and accused Deepak dishonestly received or retained the said mobile handset knowing or having reason to believe the same to be stolen/robbed property.
15. Thus, in view of the above discussion & observations and having regard SC No. 17/12 21/22 22 to the fact and circumstances of the instant case, I am of the considered opinion that the prosecution has been successful in bringing home the guilt against the accused Deepak for committing the offence punishable u/s411 IPC, beyond the reasonable doubts. Accordingly, I hold the accusedDeepak guilty of the offence punishable u/s 411 IPC and convict him accordingly.
Now to come up for arguments on the point of sentence qua convict Deepak on 19.11.2015.
(Announced in the open ) (Paramjit Singh)
(court on 09.11.2015) Addl. Sessions Judge
(SouthWest)02
Dwarka Courts, Delhi
SC No. 17/12 22/22
23
FIR No.247/11
PS: Sagarpur
09.11.2015
Present: Sh. S.K.Berwal, Substitute Addl. PP for State Accused Ajay is present in JC Accused Deepak Singh is present on bail.
Vide separate judgment, announced in the open court, accused Ajay have been acquitted of the charged offences and accusedDeepak have been convicted u/s 411 IPC .
In accordance with Section437A Cr.PC, the acquitted accusedAjay have been directed to furnish PB & SB in the sum of Rs. 20,000/each and accordingly, the said PB & SB have been furnished on behalf of the accused and the same are considered and are accepted for six months in terms of the provisions of Section 437A of Cr.PC. Since, accusedDeepak has been convicted u/s411 IPC, now to come up for the arguments on the point of sentence qua said convict Deepak on 16.11.2015, as requested.
At this stage, the date is changed to 19.11.2015 at the request of convict Deepak . Accordingly, the date fixed earlier i.e 16.11.2015 stands canceled.
Now to come up for arguments on the point of sentence qua convict Deepak on 19.11.2015 at 2:00 p.m, as requested.
(Announced in the open ) (Paramjit Singh)
(court on 09.11.2015) Addl. Sessions Judge
(SouthWest)02
Dwarka Courts, Delhi
SC No. 17/12 23/22
24
IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE (SOUTHWEST)02, DWARKA COURTS:DELHI (Sessions Case No. 17/12) Unique ID case No.02405R019382012 State Vs. Deepak FIR No. : 247/11 U/s : 411 IPC P.S. : Sagarpur ORDER ON THE POINT OF SENTENCE In the present case, the convict Deepak have been convicted u/s411 IPC I have heard the arguments on the point of sentence put forward by Ld. Addl. PP for the state and Ld. Defence counsel for the convict.
2. It has been submitted by the Ld. Addl.PP that in view of the nature of offence, the convict do not deserve any leniency and he prays that maximum sentence prescribed by the law may be imposed upon the convict.
3. On the other hand, it has been submitted by the ld. Defence counsel that the convict Deepak belongs to a poor family and is the sole bread earner of his family and there is none else to look after his family. He further submits that the convict is not a previous convict and is having clean antecedents. Ld. defence counsel also submits that the convict Deepak has already remained in the custody for about two months during the investigation and trial of this case and he prays that a lenient view may be taken in this case.
SC No. 17/12 24/22 254. I have carefully considered the submissions made by Ld. Addl. PP and Ld. Defence counsel and have carefully gone through the record of the case.
5. In the present case, the convict has been convicted for committing the offence punishable u/s411 IPC. Keeping in view the fact and circumstances of the present case and having regard to the nature of offence and family circumstances of the convict, I hereby sentence the convictDeepak to undergo imprisonment for the period for which he has already remained in custody during the investigation and trial of this case and to pay a fine of Rs. 3000/ in default SI for one month u/s411 IPC, which sentence shall meet the ends of justice in this case.
Copies of the judgment and order on the point of sentence be supplied to the convict, free of cost.
File be consigned to the record room .
(Announced in the open ) (Paramjit Singh)
(court on 19.11.2015) Addl. Sessions Judge
(SouthWest)02
Dwarka Courts, Delhi
SC No. 17/12 25/22
26
FIR No.247/2011
P.S. Sagarpur
19.11.2015
Present: Sh. Pramod Kumar, Addl.PP for the State.
Convict Deepak in person with counsel Sh. Priyankar Tiwari.
Ld. Defence counsel has filed his vakalatnama and the same be placed on record.
Arguments on the point of sentence, heard.
Vide separate order on the point of sentence, announced in the open court, the convict Deepak have been sentenced to undergo imprisonment for the period for which he has already remained in custody during the investigation and trial of this case and to pay a fine of Rs. 3000/ in default SI for one month u/s411 IPC, which sentence shall meet the ends of justice in this case. Fine paid.
Copies of the judgment and order on the point of sentence be supplied to the convict, free of cost.
File be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(court on 19.11.2015) Addl. Sessions Judge
(SouthWest)02
Dwarka Courts, Delhi
SC No. 17/12 26/22