Delhi District Court
S.C. No.11/10 Fir No. 836/08 State vs . Mohd. Ishtiyak Etc. 1/58 on 20 August, 2014
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No.11/10
(Unique ID No.02403R0096672009)
FIR No.836/08
PS: Malviya Nagar
U/S: 302/392/397 IPC
State
Versus
(1) Mohd. Ishtiyak
S/o Sh. Julfikar
R/o Village Shivalkhas,
Mohalla Dharapatti, P.S Jani,
District Meerut, U.P.
(2) Majid Ali
S/o Sh. Mohabbat Ali
R/o Village Shivalkhas,
Mohalla Dharapatti, P.S Jani,
District Meerut, U.P.
(3) Ahmed Sahid
S/o Sh. Rasid
R/o Village Shivalkhas,
Mohalla Dharapatti, P.S Jani,
District Meerut, U.P.
(4) Mohd. Meenu
S/o Sh. Noor Mohd.
R/o Village, Khanpur,
P.S. Jani, Distt. Meerut, U.P.
S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 1/58
Date of Institution : 09.04.2009
Date of Institution in Session Court : 17.09.2010
Date of Pronouncement of Order : 20.08.2014
JUDGMENT
1. Shorn of unnecessary details, case of the prosecution is that accused persons conspired together to rob UCO Bank, Sheikh Sarai, Part I, New Delhi and in pursuance to such conspiracy, on 8.12.2008 accused Mohd. Ishtiyak and Mohd. Meenu reached outside the bank on a motorcycle. Mohd. Meenu remained sitting on the bike while accused Mohd. Ishtiyak entered the bank with two guns, fired fatally on Bank Peon Jitender and robbed Rs. 2,81,000/- from the bank cashier. Mohd. Ishtiyak then came out of the Bank, wore helmet, sat on pillion of motorcycle on which Mohd. Meenu was already on driving seat and fled away from there. Other two accused persons namely Mazid Ali and Ahmad Shahid also reached outside the Bank. Then they threw one blue colour CBZ motorcycle in Gang Nahar while black Pulsar motorcycle was abandoned near ISBT. The robbed amount was shared between the four and they spent the entire amount. The accused persons were S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 2/58 arrested on 5.1.2009 where they made disclosure about their involvement in this case as well as in other cases. One pistol each was recovered from accused Mohd. Ishtiyak, Ahmad Sahid and Majid Ali. Accused Mohd. Meenu was arrested on 11.01.2009.
2. The State machinery came into motion on receipt of an information regarding an incident at UCO Bank, Sheikh Sarai I New Delhi on 8.12.2008. Insp. Satender Singh reached the spot where SI OP Sinha, SI Ajay Kumar and ASI Jagar Pal were already present. Blood spots, two empties, one live cartridge and one fired lead of cartridge were lying at the spot. Crime Team was called at the spot and it was got photographed. Statement of Ramesh Kumar was recorded wherein he stated that he was working as Assistant Manager in the said Bank. At about 3 pm., when he was working on his seat, suddenly, a young man of 25/30 years of age, of medium built, light beard, fair complexioned about 5' 7'' tall, wearing a black jacket, entered the bank with weapons in his both hands. He was carrying a black colour bag. When peon Jitender tried to catch him, he fired twice, at which, Jitender ran out of the S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 3/58 bank in injured condition. The culprit then entered the cabin of Cashier Jaipal after opening the cabin door with his leg and looted Rs. 2,81,000/- from the bank and after keeping the cash in the bag, he went out of the bank, swaying the weapons. He further stated that at that time, besides 5-7 customers of the bank, bank staff, namely, Cashier Sh. Jaipal, K.R. Saini, N.K. Pashricha, Kamal Kishore, Smt. Ranjeet Kaur and Sr. Manager R.C. Chaudhary were also present in the bank, in their respective seats. Due to firing, all others left the bank except he himself (Ramesh Kumar), Jaipal and R.C. Chaudhary. Injured Jitender was taken to hospital by K.R. Saini, N.K. Pashricha and Kamal Kishore. It is also recorded that two empties, one unused cartridge and one fired lead alongwith blood were found at the spot, which were seized by the IO. Injured
- Jitender was taken to AIIMS Hospital where he died. FIR No. 836/08 was registered at 7:30 p.m on 08.12.2008 u/s 302/392/397 IPC.
3. From the statements of eye-witnesses, portraits of assailants were got prepared and CCTV footage of State Bank of India, S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 4/58 Malviya Nagar regarding FIR No. 739/08, was also developed and after showing the same to the eye-witnesses, it was found that both the robberies were committed by the same persons. The accused persons were arrested in FIR No. 5/09 of P.S. Kalkaji on 5.1.2009 wherein they made disclosure regarding their involvement in the present case i.e FIR No. 836/08 and FIR No. 739/08, P.S. Malviya Nagar. The accused persons were thus arrested with permission of the court, when they were in muffled face.
4. After completion of the investigation, charge-sheet was filed on 09.04.2009 but since the offences were exclusively triable by the court of Sessions, this matter was committed to this court on 25.04.2009. On 24.07.2009, charges under Section 302/392/397/34 IPC were framed against all the four accused persons, to which they pleaded not guilty and claimed trial.
5. Prosecution examined 33 witnesses in support of its case. 5.1 PW-1 Ramesh Kumar is the Assistant Manager of UCO Bank, Sheikh Sarai. He stated that on 08.12.2008, at about 3:00 S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 5/58 p.m., a person entered the bank and pushed the cash cabin. He did not notice any weapon in his hand. Poen Jitender tried to stop him at which he fired and thereafter he ran outside. Jitender received gun shot injury. Robber again reached to the cashier and robbed Rs. 2,91,000/- from the Cashier. Thereafter, he left the bank. Jitender was taken to hospital but after sometime, he was declared dead. Police recorded his statement which he proved as Ex. PW1/A. Police also lifted blood from the bank vide memos Ex. PW1/B and Ex. PW1/C. A lead and cartridge were also seized vide memo Ex. PW1/D. Sketches of the articles were prepared and were proved as Ex. PW1/E. He also proved the site plan Ex. PW1/F. He, however, could not identify the person, who had robbed the bank. On the point of identification of the accused, he was cross-examined by the Ld. Addl. PP. However, he stated that he cannot say if accused Ishtiyak was the person, who committed robbery in the bank and killed Peon Jitender. He also could not admit or deny if accused Ishtiyak was the person, who committed robbery in the bank. He denied the suggestion that due to fear or having been won over by the accused, he could not identify the accused in the court. His S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 6/58 further examination-in-chief was deferred on 01.12.2009. On 31.05.2013, the witness was recalled for his further examination-in- chief wherein he admitted that on 17.01.2009, police had brought four persons to the bank and he had identified one person on that day and he was also present in the court on that day but on the last date of hearing, i.e on 01.12.2009, he could not identify that person as he was threatened outside the court by some persons. He identified Mohd. Ishtiyak as the person, who had fired at Jitender and had robbed cash. He stated that other three accused persons, who were present in the court, had also come alongwith Mohd. Ishtiyak. He proved the pointing out memo of accused Mohd. Ishtiyak was proved which was already exhibited as Ex. PW28/J. His disclosure statement was proved which was already exhibited as Ex.PW28/F. Pointing out memo -cum- disclosure statement of accused Mohd. Minu was proved which was already Ex. PW28/G; pointing out -cum-disclosure statement of accused Majid Ali was proved which was already exhibited as Ex. PW28/H and pointing out -cum - disclosure statement of accused Ahmad Shahid was proved which was already exhibited as Ex.PW28/I. He identified S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 7/58 one live cartridge, two empty cartridges and one lead cartridge to be seized from the spot, which were exhibited as Ex. PW1/P1 (one live cartridge and two empty cartridges) and Ex. PW1/P2 (lead cartridge). In his cross-examination for all the accused persons, he stated that he had come to court on 01.12.2009 for deposing and thereafter he came to the court after about 4 years. During those 4 years, he did not inform the court or police or the IO that he was threatened outside the court by some persons on 01.12.2009. He denied the suggestion that he did not inform the court or police or IO in this regard since he was not threatened on 01.12.2009. He also denied the suggestion that he identified accused Mohd. Ishtiyak due to pressure of the IO. He further stated that police officials came on 17.01.2009, to their bank at about 2:00 p.m but then he stated that they came at about 3:00 p.m. Only one police official came in the bank but he could not tell as to how many were present outside the bank. The only police official came alongwith four accused persons in the bank. All those four accused persons were handcuffed. He could not tell which accused entered the bank first or whether the said police official entered the bank first. Police S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 8/58 remained in the bank for about half an hour but no public person from nearby DDA Market, was called in the bank. He did not sign any paper in the bank during that half an hour on 17.01.2009 but he had signed the papers on 08.12.2008. He denied the suggestion that no police official visited the bank with the four accused persons on 17.01.2009.
5.2 PW-2 Dr. Surjit deposed on behalf of Dr. Rawanane and identified his handwriting and signatures. He proved the MLC of Jitender as Ex.PW2/A. As per the MLC, after giving all life saving measures, patient could not be revived and was declared brought dead. The injuries were opined to be 'dangerous'. In his cross- examination for accused Majid Ali, he stated that he deposed on the basis of record and Dr. Rawanane worked with him for about one year.
5.3 PW-3 Jaipal stated that on 08.12.2008, he was sitting in his cash cabin in UCO Bank, DDA Market, Sheikh Sarai, where he worked as Clerk-cum-Cashier. At about 3:00 p.m., he heard a gun shot fire and immediately a person kicked the door of the cash room S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 9/58 and came inside. He was having two pistols in his hand. After entering, he placed the pistol on his temple. He got frightened. Thereafter, the said person robbed an amount of around Rs. 2,90,000/- from the cash drawer. He pointed out towards accused Mohd. Ishtiyak as the person, who had entered his cabin forcibly and had robbed a sum of Rs. 2,90,000/- on gun point from him. He further stated that accused Ishtiyak was also having blood on his clothes which also spread in his cabin as, before entering the cabin, he had fired upon Peon Jitender. Later on, police arrived at the bank and conducted the proceedings. He stated that the police was called by the senior Manager Ramesh. In his cross-examination, he stated that he had only turned up his face when he heard the gun shot and before that, he was dealing with customers for paying and receiving cash. He could not see who entered the bank and what happened before he heard the gun shot. He could not tell if the blood on the clothes of the person, who entered his cabin, was his own blood or of somebody else. He stated that he could not see if the person, who entered his cabin, was injured or not. He stated that police came in the bank after about 25 minutes of the incident. He S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 10/58 stated that other customers were present in the bank when the incident took place. In his presence, police did not make inquiries from those customers as they had left from the bank. He stated that he was shown the photographs of suspects on the day of incident in the evening hours for the first time and second time, after 3-4 days of the incident. He was not taken to Tihar Jail by the police. He denied the suggestion that he identified Ishtiyak at the instance of the police or that Ishtiyak did not enter the bank or that he had not seen the incident taking place.
5.4 PW-4 Dr. Sushil Sharma proved his postmortem report as Ex.PW4/A of Jitender Singh which he had carried out alongwith Dr. D.N. Bhardwaj. The cause of death was opined as 'Haemeragic shock' due to fire arm injury in abdomen. Another fire arm injury was noted on right ankle. The opinion was proved as Ex.PW4/B. Clothes of the deceased were sealed by him and were given to the IO wherein holes were found present in the shirt, belt and pant corresponding to the fire arm injury in abdomen.
S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 11/58 5.5 PW-5 Dr. D.N. Bhardwaj stated that on 09.12.2008, he alongwith Dr. Sushil Sharma had conducted postmortem on the dead body of Jitender. The Postmortem Report was prepared by Dr. Sushil as Ex.PW4/A. The clothes were examined and unanimous opinion Ex.PW4/B was given.
5.6 PW-6 Ct. Anand stated that on 08.12.2008, he alongwith SI Nafe Singh went to UCO Bank, Sheikh Sarai. At the directions of Incharge Crime Team, he took 23 photographs of the place of incident. The photographs were developed and given by him to the IO. 22 photographs were proved as Ex.PW6/A-1 to Ex.PW6/A-22. He also brought negatives of those photographs which were exhibited as Ex.PW6/B-1 to B-23. In his cross-examination, he stated that he reached the spot at about 3:15 p.m. He did not observe, if any other public person was present in the bank or not. 5.7 PW-7 SI Nafe Singh is the Incharge Mobile Crime Team. He stated that on 08.12.2008, he visited the UCO Bank, Sheikh Sarai, Phase-1 where a bank dacoity had taken place. He proved his report as Ex.PW7/A. In his cross-examination, he stated that there S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 12/58 were three persons in the team. They reached the spot at about 3:30 p.m. He did not advise IO to lift fingerprints.
5.8 PW-8 Ct. Janardan stated that on 08.12.2008, Duty Officer gave copy of DD No. 24B which he took from UCO Bank, Sheikh Sarai and gave its copy of ASI Jagarpal.
5.9 PW-9 Kamal Kishore stated that on 08.12.2008, he was working as Clerk in UCO Bank, Sheikh Sarai, Phase-1, and was sitting at the counter. At about 3:00-3:15 p.m, he saw a quarrel between one person and a bank Peon Jitender and both of them were grappling with each other. That person was having a bag with him and was also having pistol in his both hands. That person fired 2-3 cartridges. Jitender received injury on his leg and body. When that person fired, he (witness) got scarred and ducked under the counter. For a little while, it was silent and thereafter, there was a forceful sound as that person kicked the cash cabin's door. That person entered the cash cabin and kept the pistol on the cash counter in front of a Cashier. From the cash drawer, he took out the entire cash and put the same in his bag and after picking up his pistol, he S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 13/58 went away from there. Jitender was lying in an injured condition and was removed to the hospital by him, N.K. Pashricha and K.R. Saini. He identified the accused Ishtiyak as the person, who had come to the bank on that day. On 17.01.2009, he was present at the bank when Police came alongwith four accused persons, including Ishtiyak. He stated that he identified only accused Ishtiyak out of those persons. In his cross-examination, he stated that at the time of incident, about 8-10 persons were present. No guard was posted at the main gate. Grill gate was slightly open through which one person could easily pass at one time. When he came back from the hospital to the bank, police showed photographs of the accused persons to him and to N.K. Pashricha and K.R. Saini. On 17.01.2009, police brought the accused in the branch. Before 17.01.2009, he and Ramesh were taken to Tihar Jail for identifying the accused. Police had shown photographs of the accused in P.S. Malviya Nagar and after that he went to Tihar Jail. After about 15 days of the incident, accused was arrested by P.S. Kalkaji Police and there also he identified the accused. He denied the suggestion that he identified accused Ishtiyak at the instance of the IO. S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 14/58 5.10 PW-10 K.R. Saini stated that on 08.12.2008, he was working as Manager at UCO Bank, Sheikh Sarai, Phase-1. On that day at about 3:00-3:30 p.m, accused Mohd. Ishtiyak, towards whom he pointed out by finger, came in the bank having pistol in his both hands. He kicked the door of the Cashier. In the meantime, one Peon Jitender came there and he caught hold of him from behind. Some scuffle took place between them. Accused fired towards Jitender, who ran outside the Branch and fell down there. Accused broke the door of the Cashier cabin with kick and took cash about Rs. 2,91,000/- from the Cashier and he kept the same in a black colour bag which he was carrying with him and ran away from there. He alongwith other bank employees, namely, Kamal and N.K. Pashricha took Jitender to AIIMS Hospital. Jitender died on the way. Police met them in the hospital on the same day and later on recorded his statement. In his cross-examination, he stated that accused remained present in the bank for about 10 minutes. Police was already present when he came back to bank from the hospital but no customer was present. Police had already lifted fingerprints from the spot. Police showed them photographs of the accused in S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 15/58 the hospital on the day of incident. He could not tell, if police had shown photographs of the accused to other employees or not. Police had brought the accused in the Branch on 07.01.2009. Police took Kamal Kishore and Ramesh Kumar to Tihar Jail but they did not ask him to come to Tihar Jail. He denied the suggestion that he identified the accused at the instance of the police. 5.11 PW-11 R C Choudhary deposed that on 08.12.2008 he was working as Branch Manager in UCO Bank at Sheikh Sarai, New Delhi. At about 2.45 PM on that day he heard voice of gun fire shots and saw stampede inside the customer hall of the branch. He tried to come out of his cabin but two-three customers entered his cabin and told him not to go outside. On being asked, they informed 'Goli Chal Gayi Hai'. He alongwith other customers concealed themselves beneath the table in the cabin. After about one minute other staff members came inside the cabin and informed him 'Daka Pad Gaya Hai, Cash Lut Gaya Hai'. They further informed that all miscreants had run away and their daily wage worker Jitender @ Jitu had been heard by the gun shot. They all S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 16/58 came out from the cabin and tried to manage the scene in the customer hall. He informed police at 100 number. He also came to know that Jitender had run outside the branch after sustaining gun shot. They went out of the branch and found him to be lying under a tree in front of the branch. At his instructions, K R Saini, N K Pashricha took Jitu to AIIMS hospital. He also informed his seniors. Within five minutes, PCR van reached at the bank and within ten minutes local police also reached the bank. He narrated the incident to police which recorded his statement. FIR was lodged on the statement of another bank employee namely Ramesh Kumar who was present in the customer hall at the time of incident. Crime Team also reached the spot and photographed it. DCP also visited the bank within half an hour of the incident. Police also lifted exhibits from the spot. He was cross-examined by the Ld. Addl. PP wherein he agreed that police recorded his statement on 08.12.2008. He denied the suggestion that he had stated in his statement that at about 3 PM a youngster having arms in his both hands and one black colour bag entered the bank and had a scuffle with Peon Jitender when Jitender tried to resist the said miscreant. S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 17/58 He also denied the suggestion that he had heard two gun shots and saw Jitender running outside and the said miscreant also went out having revolvers in his both hands. He however admitted that the miscreant had taken away Rs.2,91,898/- from the Cashier of the bank. A suggestion was put to him that he was deposing falsely due to pressure and coercion and was not identifying that person deliberately but he denied the same. The witness was cross examined by counsel for the accused wherein he stated that he does not remember as to exactly how many customers were present in the bank at that time he stated that he did not see Jitender running out of the branch as he was busy in doing work in his cabin. The police officials did not record statement of any customer in the branch as none of them was present at that time due to night. Generally two wheelers were parked in front of the premises of the bank. From inside the shops of DDA market main gate of the bank is not visible. His statement was recorded by the police within two hours of the incident while sitting in his cabin. Police did not record statement of any nearby shopkeeper.
S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 18/58 5.12 PW -12 Mahavir Singh is uncle of deceased Jitender who identified the dead body of Jitender on 09.12.2008 at AIIMS Mortuary. He proved his identification statement to this effect as Ex. PW12/A and delivery memo of the dead body as Ex. PW 12/B. 5.13 PW-13 Mohd. Anish is an employee in a shop opposite the bank. He stated that on 08.12.2008 at about 3 PM he was present outside the shop Hotspot where he was working. The said shop is opposite to UCO bank. In the mean time, he heard voice of crying which was coming from inside the UCO bank. He also heard voice of glass breaking. He saw one person coming out of the bank having pistol in his right hand and a bag was hanging on his shoulder. He sat on a motorcycle which was parked in front of his shop on which his associate was waiting and they fled away from there. He went inside the bank alongwith his senior and saw bank peon in injured condition. Police came at the spot and injured was taken to the hospital. Media persons also reached there and many persons gathered there. Police made inquiries from his and recorded his statement. He was cross examined by Ld. Addl. PP on some S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 19/58 material points wherein he admitted that he had stated to police that he saw that there was commotion in the bank and the bank employees as well as customers were rushing out of the bank and that he heard a voice of bullet shot and bank peon Jitender who was in injured condition ran towards Bengali Sweets and fell down. He also admitted to have stated to police that the said motorcycle was of black colour and was of Pulsar make. He stated that he can identify only one person as the other person was wearing helmet at that time. He admitted that police had shown him a photograph and he had identified one person who had fired. He could not tell whether the said person was having pistols in his both hands or not. In his cross-examination, he stated that on the day of the incident, police did not come to their shop to inquire about the incident but next day, one police official came to him and asked him to come to the PS. He stated that on the day when his statement was recorded, no photograph was shown to him but he volunteered to state that he was shown the CCTV footings, copy of which was marked 'X' and he told the police officials that he was unable to identify the accused as the photograph was not clear. Police met him regarding this S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 20/58 incident for about 7-8 times. On the day when he went to Tihar Jail, some photographs were shown to him by the police. He further stated that it might have taken one minute for the accused to come out of the bank and to sit on the bike and to go. He told the police after seeing the photographs that the person, who is in the photograph, is the same, who had come out of the bank. He stated that he was also shown the sketch of the person but the said sketch was not on court record. He denied the suggestion that he identified the accused Mohd. Ishtiyak on the pointing out of the IO. He stated that he did not see anybody entering the bank but only saw one person coming out of the bank.
5.14 PW-14 Prabhat Kumar is the Chief Manager, State Bank of India. He stated that he was working as Branch Manager at SBI, Malviya Nagar from June 2008 to October 2010. On 29.10.2008, police came to his Branch and obtained CCTV footage. On 31.03.2009, Inspector Satender recorded his statement. Photograph mark 'X' and 'X1' were shown to the witness and he had identified the said photographs to be of his Branch. In his cross-examination, S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 21/58 he stated that 5-6 CCTV Cameras were installed in the SBI Branch at Malviya Nagar. All the footage of CCTV Cameras had been saved in the hard disk of the computer. Police official had copied the footage of the CCTV Cameras recorded on 20.10.2008. 5.15 PW-15 Santosh Kumar stated that on 08.12.2008, he was working as Technician in Triveni Cables. On that day, at about 3:00 p.m when he was outside his office, there was a commotion. At that time, he noticed that one Jitender came out from UCO Bank, who had an injury and he fell down near Bengal Sweet. After about 1 and 1 ½ minute, one more person rushed out from UCO Bank and he had a pistol in his hand and a bag in his shoulder. One person was sitting on a Pulsor motorcycle and the person, who came out from the UCO Bank, sat behind that person on Pulsor motorcycle and fled away. The person, who came out with a pistol from UCO Bank was aged about 26-27 years and was of about 5 feet 6 inches height. The person sitting on the motorcycle outside the bank was wearing a helmet. He only saw side face of the person, who came out from the Bank. On the same day, police made inquiry from S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 22/58 him and recorded his statement. The witness identified accused Mohd. Ishtiyak by looking at him from side pose to be the person whom he had seen him on 08.10.2008 coming out from the bank. This witness was cross-examined by the Ld. Addl. PP wherein he stated that he never stated to the police that he saw the face of the person, who was waiting outside the bank on Pulsor motorcycle. He also stated to have not heard the noise of bullet shots. In his cross-examination, he stated that one cannot see the front gate of UCO Bank while sitting in the shop Triveni Cables. The distance between the front gate of the Bank and his shop is about 10-15 meters. He stated that he had seen the person coming out from the bank from a distance of about 15 yards for a period of about 10-15 seconds. Police recorded his statement outside his shop at about 3:30/3:45 p.m. He again went to the Police Station at the asking of the police to get prepared sketch of the culprit but he told that he had only seen the side face of the culprit and was thus not able to get the sketch prepared. Police had shown some photographs to him in the PS but none of the photographs was of the accused person. Police took him to Tihar Jail for TIP of the accused after S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 23/58 about 15-20 days of the incident whereas the photographs were shown to him next day of the incident i.e 09.12.2008. He denied the suggestion that photographs of accused Ishtiyak was shown to him in the PS and after that he was taken to Tihar Jail for TIP or that accused Ishtiyak was shown to him in the PS prior to TIP. 5.16 PW-16 SI Ajay Kumar stated that on 08.12.2008 when he was posted at P.S. Malviya Nagar as Sub Inspector, at about 3:00 p.m, he received an information about a dacoity having taken place at UCO Bank, DDA Market, Sheikh Sarai. He alongwith SI O.P. Sinha reached the spot where ASI Jagar Pal and Ct. Jagdish were already present. Immediately thereafter, SHO/Inspector Har Pal Singh and Inspector Satender Singh - IO also reached there. Inquiries revealed that a person aged 25-30 years having light beard with a height of about 5 feet 7 inches entered the bank carrying arms in his both hands. When he was tried to be stopped by bank peon Jitender, that person shot at him. Jitender ran outside the bank in injured condition. The assailant entered the cash cabin by kicking open the gate and looted Rs.1,81,000/- on gun point from S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 24/58 the cashier and thereafter he escaped from the spot. Crime Team and Photographer reached the spot. The cartridges, which consisted of empty as well as live and lead were seized by the IO. Blood was also lifted by the IO. Blood stains were found on the floor of the bank at different places, which were also lifted by the IO. The seizure memo was prepared and samples were sealed with the seal of 'SS'. Thereafter, statement of Ramesh - Assistant Manager of the Bank was recorded by the IO and after making endorsement on the same, Rukka was prepared and handed over to HC Hari Ram for registration of the FIR. The witness and Ct. Jagdish then left the spot while Inspector Satender Singh, SI O.P. Sinha and ASI Jagar Pal went to hospital. The site plan was prepared by the IO. In his cross-examination, he stated that he remained at the spot for about 3-4 hours. During this period, he remained inside as well as outside the bank. He did not make inquiries from any particular shop- keeper by going to his shop.
5.17 PW-17 SI Jagar Pal stated that on 08.12.2008, at about 3.20pm, he received DD No. 15-A at Begumpur, EX.PW17/A, S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 25/58 which pertained to a dacoity in UCO Bank, Sheikh Sarai, Phase-I, in which, 8-10 Badmaash had entered in the said Bank, in Akab through HC Hari Ram. He alongwith HC Hari Ram and Ct. Jagdish reached at UCO Bank. SI O.P. Sinha and SI Ajay Kumar also reached at the spot just immediately thereafter. After some time, SHO/Insp. Harpal Singh and Insp. Satender Singh also reached at the spot. He came to know that one person had injured through a bullet shot and the injured was a Bank Peon, and the dacoits had fled away from the spot after committing dacoity in the said Bank. Injured had been shifted to an unknown hospital, by the Bank staff. Asst. Manager/Ramesh Kumar informed that one person who was carrying two pistols in his both the hands, had entered the Bank and when, he was tried to be stopped by Jitender/Bank Peon, he was shot at. The assailant went to the Cabin of the Cashier, which he opened by his leg and entered in his Cabin. From the Cashier, he looted Rs. 2,81,000/-, which he put in the bag and escaped from the spot, waiving the pistol. The Crime Team and photographer were called at the spot. IO/Insp. Satender Singh lifted two empty cartridges, one lead cartridge and one live cartridge from the Bank S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 26/58 premises, which were seized by a Seizure Memo. Some blood was there on the floor of the Bank, which was also lifted by the IO. The blood lying on the paper in the Cabin of the Cashier was also lifted by the IO. DD bearing No. 30-B was received in Akab regarding death of Jitender, in AIIMS hospital. IO recorded the statement of Asst. Manager/Ramesh Kumar and after making endorsement on the same, the rukka was prepared, which was sent to PS, for registration of FIR, through HC Hari Ram. He alongwith IO, and SI O.P. Sinha left the spot for AIIMS hospital, while, SI Ajay and Ct. Jagdish were left at the spot. IO collected MLC No. 105974 of injured/Jitender and according to the MLC, the injured was brought- dead to the hospital. IO also collected a pullanda, which contained the cloths of the deceased/Jitender, which were seized by the IO through Seizure Memo, EX.PW17/B. All three then returned back to the spot. The IO prepared the site plan on the basis of the statement of the witness i.e. Asst. Manager/Ramesh Kumar. Statements of 4-5 persons who were Bank employees were recorded by the IO. Search was made for the accused, but, he could not be found. Since, it had turned dark, they came back to the PS, and the S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 27/58 case property was deposited in the Maalkhana. In his cross examination he stated that SI Ajay made inquiries from Asst. Manager/Ramesh Kumar. When, SI Ajay was making inquiries from Asst. Manager/Ramesh Kumar, IO/Insp. Satender Singh had not come to the spot. IO/Insp. Satender Singh was reducing the statement of Asst. Manager/Ramesh Kumar in writing. The IO/Insp. Satender Singh recorded the statement of Asst. Manager/Ramesh Kumar after 8-10 minutes of his reaching at the Bank. First, verbal inquiries were made by SI Ajay from Asst. Manager/Ramesh Kumar. They had left for the hospital after remaining at the spot for about 2-3 hours. During this period of 2-3 hours, the IO had not made inquiries from other persons except Asst. Manager/Ramesh Kumar. IO had not made any inquiries during this period, even from the persons outside the Bank, or from the nearby shops situated in DDA Market.
5.18 PW-18 HC Pawan Kumar stated to have deposited exhibits at FSL Rohini.
S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 28/58 5.19 PW-19 HC Hari Ram stated that Inspector Satender handed over Rukka to him for registration of FIR and after getting the case registered, he handed over a copy of the FIR alongwith Rukka to Inspector Satender. In his cross-examination stated that he remained at the spot for about 4-5 hours and during this period, he did not enter the bank premises. He noticed that IO made inquiries about the incident from public persons. He received Rukka from the IO at about 7:15 p.m and reached back alongwith copy of the FIR and Rukka after about one hour.
5.20 PW-20 Ct. Kuldeep deposed about depositing exhibits of Ballistic Division at FSL, Rohini on 25.2.2009. He however stated that exhibits of Biological Division were not received in office of FSL, Rohini.
5.21 PW-21 Ct. Dinesh Kumar stated that on 08.12.2008 at about 6:45 p.m, Duty Officer handed over DD No. 30B to him with the direction to hand over the same to ASI Jagar Pal at UCO Bank, Sheikh Sarai -1. He did the same. The said DD pertained to information about death of one Jitender. In his cross-examination, S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 29/58 stated that he reached at UCO Bank at about 7:00 p.m. 5.22 PW-22 SI Mahesh Kumar - Draftsman, stated that on 02.03.2009, he visited UCO Bank, Sheikh Sarai -1, alongwith Inspector Satender Kumar. At the instance of Ramesh Chander, Sr. Manager, UCO Bank, he took rough notes and measurement of the spot. He proved the scaled site plan as Ex.PW22/A. 5.23 PW-23 Dr. Bageshwar Kumar deposed on behalf of Dr. Mukesh, who had left the AIIMS Trauma Centre. As per record, Dr. Mukesh had examined accused Mohd. Ishtiyak on 17.1.2009 and gave opinion that old scar marks present on left eye-brow (about 1 ½ months old). He proved the said opinion as Ex.PW23/A. Sh. Rajender Singh, Record Clerk, identified the signatures of Dr. Mukesh, as per the hospital record. In his cross-examination, he stated that Ex.PW23/A cannot be termed as MLC.
5.24 PW-24 SI A.K. Singh stated that on 05.01.2009, he was posted at P.S. Kalkaji. On that day, in FIR No. 05/2009, P.S. Kalkaji, he arrested accused Mohd. Ishtiyak, Ahmad Saheed and S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 30/58 Mohd. Majid. A pistol, two magazines and four live cartridges were recovered from the possession of the accused Mohd. Ishtiyak, and he proved the said seizure memo as mark 'A'. One pistol, one magazine and three live cartridges were recovered from accused Mohd. Majid and the said seizure memo was proved as mark 'B'. One pistol, one magazine and two live cartridges were recovered from accused Mohd. Saheed and the said seizure memo was proved as mark 'C'. Their disclosure statements were recorded and the same were proved as mark 'D', 'E' and 'F' of accused Mohd. Ishtiyak, Ahmad Saheed and Mohd. Majid. He identified all the three persons in the court and all the aforesaid recoveries. However, the witness stated that the pistol recovered from the Mohd. Ishtiyak was made in China but the pistol being shown on that day was made in USA. In his cross-examination, he stated that on all the envelopes, FIR No. 5/09 of P.S. Kalkaji and FIR No. 836/08, P.S. Malviya Nagar with other particulars have been mentioned. He denied the suggestion that he could identify the case properties only because of the FIR numbers. He further stated that the accused persons were apprehended on 05.01.2009 at about 5:00 S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 31/58 p.m from Krishna Market in front of 'Central Bank of India', Kalkaji. Public persons were present at that time. They joined the investigation but they did not take their signatures on the arrest memos of the accused persons or on the seizure memos. He stated that he did not inform the IO of FIR No. 836/08 of P.S. Malviya Nagar but knows that said information had been given to the IO of P.S. Malviya Nagar.
5.25 PW-25 ASI Kamal Singh, is the Duty Officer, who proved the recording of FIR No. 836/08 on receipt of Rukka at about 7:30 p.m from HC Hari Ram and he proved the same as Ex.PW25/A. He proved his endorsement on Rukka as Ex.PW25/B. In his cross- examination, he stated that it took about 40-45 minutes to get the FIR typed on computer.
5.26 PW-26 HC Mangal Ram stated that on 05.01.2009 SI A.K. Singh arrested accused Mohd. Ishtiyak, Ahmad Saheed and Mohd. Majid in FIR No. 05/09, P.S. Kalkaji and pistols, magazines and live cartridges were recovered from them. He also stated that two motorcycles No. DL 7S AG 6835, black colour Pulsor and DL 7S S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 32/58 AK 1284 black colour Discover Bajaj were also recovered from them. SI A.K. Singh prepared sketches of the recovered arms and seized them vide seizure memos mark 'A to C'. He further stated that on 11.01.2009, accused Mohd. Meenu was arrested at the instance of a secret informer from Satyam Cinema, Nehru Place and during interrogation, he disclosed that he was also associated with other three accused persons in bank dacoity of UCO Bank, Malviya Nagar. The disclosure statement of accused Mohd. Meenu was proved as mark 'X'. At the time of his arrest, he was present alongwith ASI Naresh Kumar and HC Harish Chander. He identified all the accused persons in the court. In his cross- examination, he stated that they reached Satyam Cinema at about 9:40 a.m. SI Naresh Kumar did not ask any public persons to join the raiding team in his presence. He denied the suggestion that accused Mohd. Meenu was picked up from his native village. He also stated that he did not join investigation of case FIR No. 836/08. 5.27 PW-27 SI Naresh Kumar stated that on 11.01.2009, he informed P.S. Malviya Nagar regarding production of four accused S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 33/58 persons of FIR Nos. 04/09 and 05/09 in which they had disclosed to have committed offences of P.S. Malviya Nagar. He handed over the photocopies of relevant documents to Inspector Satender Kumar of P.S. Malviya Nagar. He identified the accused Ahmad and Ishtiyak correctly by name but identified accused Meenu as Majid and accused Majid as Meenu. In his cross-examination, he stated that he did not give the information regarding involvement of the accused persons in FIR No. 836/08 directly to Inspector Satender Kumar. He handed over the photocopies of the relevant documents to Inspector Satender Kumar at Patiala House Courts after 12:00 noon.
5.28 PW-28 Inspector Om Prakash stated that on 08.12.2008, at about 3:00 p.m, he received a DD No. 24B regarding bank robbery. He alongwith Inspector Satender Singh reached UCO Bank, Sheikh Sarai, Phase-1. ASI Jagar Pal and Ct. Jagdish were already present there. Inquiries revealed that one boy of 30-35 years, 5 feet 7 inches tall, thin body, light beard, had entered the bank with pistols in his both hands. On being stopped by Chowkidar Jitender, he shot S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 34/58 him. He entered the room of Cashier of the Bank and robbed a sum of Rs. 2, 81,000/- from there. Crime Team was called at the spot. One empty cover of 7.65 mm, two leads, blood spots were found. An information was received regarding death of Jitender in hospital. IO seized the blood spot and cartridges etc from the spot. Seizure memos were prepared in this regard. IO recorded the statement of Ramesh Kumar, Asstt. Branch Manager of UCO Bank. Rukka was prepared which was given to HC Hari Ram for registration of FIR. After about half an hour, HC Hari Ram came back at the spot and handed over copy of the FIR and original rukka to IO/Inspector Satender Singh. IO recorded the statement of other bank employees as well as of two eye witnesses. Ld. Addl. PP put leading questions to the witness with the permission of the court whereupon, he stated that arrest memos and disclosure statements of all the accused persons also bear his signatures. He identified all the accused persons in the court. In his cross-examination, he stated that he reached the bank at about 3:00/3:15 p.m and public persons were present outside the bank although, no public person was inside the bank. Initially, they remained inside the bank for fifteen minutes S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 35/58 and came out of the bank at about 3:30 p.m. Till 4:30 p.m., he alongwith Inspector Satender Singh remained inside as well as outside the bank. From 3:30 p.m to 4:30 p.m, Inspector Satender Singh did not record statement of any public person. He did not tell as to where the statement of those two public persons were recorded by Inspector Satender Singh. He remained with Inspector Satender Singh till 7:30 p.m and till that time, Inspector Satender Singh did not record statement of those two public persons. He alongwith Inspector Satender Singh left the bank at about 4:30 p.m for hospital where they reached at about 5:00/5:15 p.m. 5.29 PW-29, Sh. Sanjeev Kumar, Metropolitan Magistrate, stated that on 14.01.2009, he went to Tihar Jail for conducting the TIP of the accused persons. Inspector Satender Singh and four witnesses, namely, Kamal Kishore, Ramesh Kumar, Mohd. Aneesh and Santosh Kumar met him outside the main gate of jail. All the accused persons refused to take part in TIP. The requests to conduct TIP was proved as Ex. PW29/A and the TIP proceedings were proved as Ex.PW29/B to Ex.PW29/E and his certificates were S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 36/58 proved as Ex.PW29/F to Ex.PW29/I. Copy of the proceedings was allowed to the IO and the said application was proved as Ex.PW29/J. 5.30 PW-30 Inspector Sudesh Prakash stated that on 05.01.2009, an attempt of bank dacoity had taken place at Central Bank of India, Krishna Market, Kalkaji. During that investigation, this witness alongwith the then SHO/Insp. Jogender Singh, Inspector (Investigation)-Anil Kumar, SI A.K. Singh, SI Gajender Singh, HC Som Pal, HC Mangal, HC Harish, HC Ashok, etc., were present in Krishna Market, outside the said Bank. One Raju (Tea- Vendor), informed that the persons who had attempted to commit bank robbery, have left behind one motorcycle, which is parked outside the bank. Accordingly, a trap was laid and around 4.10 PM, accused Ishtiyak, Majid and Ahmad Sayyid were apprehended and SI A.K. Singh arrested the accused persons. From the possession of Mohd. Ishtiyak, one pistol with four live rounds, was recovered and pistol had a marking of '7111'. From the possession of Majid, a pistol with three live rounds, was recovered and the pistol had a S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 37/58 marking of '7111'. From the possession of Mohd. Sayyid, a pistol with two live rounds, was recovered, and the pistol had marking of '22200'. Two motorcycles were also recovered from the accused persons. The accused persons had disclosed their involvement robbery-cum-murder case of UCO Bank of PS-Malviya Nagar. SI A.K. Singh had got registered the case, and recorded the disclosure statement of the accused persons and he also seized recovered pistol as well as cartridges. He identified all three accused persons in the court. In his cross examination he stated that the IO/SI A.K. Singh had asked public persons to join the investigation before the arrival of the accused persons, but they refused to join the investigation. He could not tell as to where the disclosure statements of the accused persons, were recorded but they were recorded in his presence. 5.31 PW-31 Inspector Satender Singh stated that on 08.12.2008, while posted as Addl. SHO, PS-Malviya Nagar, at about 3.15 PM, vide DD No. 15-A, a call was received at PS, regarding dacoity at UCO Bank, Sheikh Sarai, New Delhi. He reached UCO Bank, DDA Market, Sheikh Sarai, where, other police officers were also S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 38/58 present at the Bank, and a lot of blood was lying inside the Bank in the lobby on the floor. Crime Team was also called at the spot. Photographs were taken of the spot. Blood sample was lifted from the spot on the cotton gauze, and seized vide seizure memo EX.PW1/B, and Ex. PW1/C. A live cartridge, one lead cartridge, and two used empty shells were found in the main Lobby of the Bank, and seized vide seizure memo EX.PW1/D. He recorded the statement of Ramesh Kumar, who was working as Assistant Manager in the said Bank, which was proved as EX.PW1/A. He prepared rukka on receipt of call vide DD No. 24-B and 30-B, regarding admission and death of Bank's Peon-Jitender. The DD No. 24-B was proved as EX.PW31/A, and DD No. 30-B was proved as EX.PW31/B. He proved rukka as EX.PW31/C, and stated that the same was handed over to HC Hari Ram, for registration of FIR, at 7.15 PM. HC Hari Ram returned back at spot at about 8.15 PM, and he handed over copy of FIR and original rukka to the IO. He alongwith his other staff-SI Om Prakash, ASI Jagar Pal, reached at AIIMS Casualty, and collected the MLC of deceased - Jitender. The doctor also handed over one sealed pullanda which was duly S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 39/58 sealed with the seal of 'AIIMS Hospital CMO, ND' containing the clothes of deceased-Jitender, one sample seal of the hospital, and the same were seized vide seizure memo already EX.PW17/B. The dead body of the deceased was got preserved in the mortuary, and thereafter, he alongwith his other staff, returned back at the spot. He prepared rough site plan of the spot, at the instance of Ramesh Kumar, which is already EX.PW1/F. He recorded the statements of Bank employees, u/s 161 Cr.PC, and also recorded the statements of public witnesses. After that, they returned back to PS, and the case property was deposited in the Maalkhana. On 09.12.2008, he alongwith SI O. P. Sinha went to AIIMS mortuary, for the purpose of postmortem of deceased. He proved his request to Autopsy Surgeon for postmortem of deceased-Jitender, as EX.PW31/D. The dead body of the deceased was identified by Gajender Singh (father of the deceased) and his relative. He also recorded their identification statements as EX.PW31/E and EX.PW12/A. After postmortem, the dead body was handed over to them, vide delivery memo already EX.PW12/B. He also seized one sealed envelope containing blood in gauze of deceased-Jitender, one parcel S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 40/58 containing blue colour underwear of deceased, one glass bottle containing blood/pallet (recovered from the body of deceased- Jitender), and two sample seals of 'Department of Forensic Medicine, AIIMS, New Delhi', vide seizure memo already EX.PW28/A. On 11.01.2009, vide DD No. 8-A, information was received from PS-Kalkaji, by SI Naresh Hooda, regarding arrest of four accused persons in case FIR No. 5/09, PS-Kalkaji, who had confessed their involvement in case FIR No. 836/08, PS-Malviya Nagar. He proved copy of DD No. 8-A, vide which, he received information from PS-Kalkaji, as EX.PW31/F. He also received an information that they would be produced before the concerned court on the same day and he alongwith his staff reached at Patiala House Courts, and there, SI Naresh handed over all the related documents pertaining to FIR No. 5/09, PS-Kalkaji, to him. He took the permission from the court, for the purpose of interrogation and arrest of the accused persons. He proved the arrest memos of the accused persons as - EX.PW28/B of accused Majid Ali, EX.PW28/C of accused Ahmad Sahid, EX.PW28/D of accused Mohd. Ishtiyak, and EX.PW28/E of accused Mohd. Meenu. All the S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 41/58 accused persons were produced in muffled face, by the IO of case FIR No. 5/09, PS-Kalkaji. The TIP proceedings were got conducted on 14.01.2009. On 17.01.2009, he obtained three-days police custody remand of all the four accused persons, for the purpose of recovery of cash, motorcycle, etc. All the accused persons were also got medically examined on 17.01.2009, and during medical examination, blood sample of accused Mohd. Ishtiyak, was also taken for the purpose of comparison of blood, which was lifted from the spot. The seizure memo alongwith sample seal of the hospital, in this regard was proved as EX.PW31/G. He also obtained opinion regarding old scar mark present on left eyebrow region of accused Mohd. Ishtiyak, and the said opinion was proved as already EX.PW23/A. On the same day, he recorded pointing out memo of accused Mohd. Ishtiyak, which he proved as already EX.PW28/J. He also recorded his disclosure statement already EX.PW28/F. He proved the pointing out memo-cum-disclosure statement of accused Mohd. Meenu, as EX.PW28/G, pointing out memo-cum-disclosure statement of accused Mohd. Majid, as EX.PW28/H and pointing out memo-cum-disclosure statement of accused Mohd. Sahid, as S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 42/58 EX.PW28/I. He also recorded statements of witnesses namely - Ramesh Kumar, and other bank employees. On 18.01.2009, all the four accused persons were taken to their native village i. e. Sival Khas, PS-Janni, Meerut, U.P. They made efforts to recover the cash as well as motorcycle, but could not succeed. He sent exhibits to FSL, Rohini. Scaled site plan was also got prepared from the Draftsman. He obtained CCTV footage from SBI, Malviya Nagar, New Delhi, pertaining to similar type of offences. The said CCTV footage was put Mark - X and X-1. He proved FSL result of Ballistic Division, as EX.PW31/H. After completing the investigation, he filed challan in the court. He identified all the accused persons in the court. In his cross-examination, he stated that he made inquiries from the public persons, from the nearby shops including Pappu Paanwala but he did not record his statement. There were no shops located in front of the gate of the bank. The disclosure statement was not recorded in case FIR No. 5/09, PS-Kalkaji, in his presence. He admitted that in pursuance of the disclosure statement made by the accused persons, no recovery had been effected at their instance.
S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 43/58 5.32 PW-32 HC Ravinder Kumar is the MHC(M). He stated that on 08.12.2008, Inspector Satender Singh deposited one pullanda duly sealed with the seal of AIIMS Hospital, CMO, New Delhi, containing the clothes of deceased Jitender. Two plastic containers duly sealed with the seal of 'SS' containing blood, one pullanda sealed with the seal of 'SS' containing one live cartridge, two empty cartridges and one loaded cartridge in FIR No. 836/2008 were also deposited. He made entries as per seizure memos at serial No. 3348 in Register No. 19 and proved the same as Ex. PW32/A. He further stated that on 09.12.2008, Insp. Satender also deposited three pullandas, which were duly sealed with the seal of 'Department of Forensic Medicines, AIIMS, New Delhi' alongwith two sample seals of the hospital, after the postmortem of deceased- Jitender and proved this entry as EX.PW32/B. On 17.01.2009, Insp. Satender also deposited one plastic jar which was duly sealed with the seal of NPNATC, AIIMS, New Delhi, containing the blood sample of accused-Mohd. Ishtiyak, and one sample seal of the hospital. The entry to this effect was proved as EX.PW32/C. On 16.12.2008, he handed over one sealed pullanda, which was duly S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 44/58 sealed with the seal of CMO, AIIMS Hospital, containing the clothes of deceased-Jitender, to Insp. Satender Singh, who had taken the same to AIIMS Hospital, vide RC No. 156/21/08. Copy of the said RC was proved as EX.PW32/D. On 25.02.2009, he sent exhibits alongwith sample seal of Department of Forensic Medicines, AIIMS, to FSL, Rohini, through Ct. Kuldeep, vide RC No. 12/21/09, and proved it as EX.PW32/E. Ct. Kuldeep also handed over receipt of giving pullandas at FSL, Rohini, and the same is EX.PW32/F. On 28.05.2009, Ct. Suresh brought the result from FSL. He further stated that he himself handed over the same to IO/Insp. Satender Singh and proved entry to this effect as EX.PW32/G. On 19.09.2012, he received DNA report and four parcels having Sl. Nos. 1, 2, 3 and 5, from FSL, through Ct. Shatrughan, and proved entry to this effect as EX.PW32/H. 5.33 PW-33 SI Dharam Pal is the Duty Officer of P.S. Kalkaji, who proved the registration of FIR No. 05/09 on 05.01.2009 at 7:20 p.m as Ex.PW33/A. S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 45/58
6. Statements of the accused persons were recorded u/s 313 Cr PC. Accused Mohd. Ishtiyak stated that he did not commit any dacoity or looted any cash or fired upon any person. He stated that photographs were wrongly identified by PW-14 Prabhaat Kumar. He denied to have been apprehended on 5.1.2009 while attempting to commit bank robbery of Central Bank of India, Kalkaji. He stated that no pistol or other arm was recovered from him. He stated that the disclosure was not voluntary. He stated that he was shown to the witnesses before the TIP proceedings. For the CCTV footage of SBI, Malviya Nagar, he stated that it was manipulated. He also stated that he was shown by the IO to witness PW-9 Kamal Kishore and PW-13 Mohd. Anish who identified him in court.
7. Accused Mohd. Meenu, Ahmad Shahid and Majid Ali denied all the circumstances and claimed themselves to be innocent. They stated that they were shown to witnesses before TIP proceedings. They denied the manner of their arrest and stated that their disclosure was not voluntary and nothing was recovered from them. None of them brought any defence evidence.
S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 46/58
8. Ld. Counsel for accused persons argued that there are discrepancies in the prosecution case. It has been stated that the accused persons were arrested in FIR No. 739/08 PS Malviya Nagar and they have been implicated falsely in the present case FIR No. 836/08 and FIR No. 4/09 PS Kalkaji. He stated that the accused persons have been acquitted in both these cases by the competent Courts and the time, place and manner of arrest was found to be doubtful. He stated that when the arrest becomes doubtful, the recovery and subsequent proceedings also become doubtful. He also argued that the identification of the accused in Court is not free from doubt as according to prosecution only two persons namely Mohd. Ishtiyak and Mohd. Meenu were available at the spot as Mohd. Ishtiyak is stated to have gone inside the Bank and Mohd. Meenu waited outside the Bank on a motorcycle and he was wearing a helmet. It has been stated that there is no recovery from any accused and they have been falsely implicated. Regarding identification of accused Mohd. Ishtiyak, it has been stated even his identification is doubtful as he took seconds in coming out of Bank and going away from there on a motorcycle and for such a short S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 47/58 duration, it is practically impossible for anybody to identify him. It is stated that there is no recovery of robbed money in this case. The accused persons are separately facing another trial in FIR No. 423/08 PS Malviya Nagar. On these grounds, acquittal has been prayed for the accused persons.
9. Ld. Addl. PP on the other hand has stated that the accused persons are gangsters, who commit Bank robberies. It was stated that the prosecution has been able to prove its case beyond all reasonable doubts. He argued that the accused Mohd. Ishtiyak was identified by many witnesses from Bank that he had entered the Bank with two pistols in his both hands and he also fired at a Bank employee Jitender, due to which he died. It was argued that two independent witnesses outside the Bank also deposed that they saw accused Mohd. Ishtiyak coming out of Bank with one pistol and both of them identified accused Mohd. Ishtiyak. He argued that the FSL result of Ballistic Division is in favour of the prosecution and hence the accused persons may be convicted.
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10. I have heard both the sides and have carefully perused records of the case. As noted in opening para of the Judgment, it is the own case of prosecution that only one accused namely Mohd. Ishtiyak had entered the bank with guns in his hands and committed robbery of Rs. 2,91,000/- and shot at Jitender, while other accused persons waited outside the Bank on two motorcycles. There is no recovery of the said two motorcycles on which all the four accused persons reached the Bank. There is no recovery of the robbed money. There is no identification of any other accused by any witness, except accused Mohd. Ishtiyak. There is no other legally admissible evidence on record which could show that the other three accused persons were also involved in the present case of murder and bank robbery which took place on 8.12.2008 at about 3 pm. The only piece of material available against these three accused persons is their disclosure statements. In the absence of any evidence against the accused persons Majid Ali, Ahmed Shahid and Mohd. Meenu, no conviction can be recorded against them for the offences u/s 302/392/397/34 IPC. As such, the accused persons Majid Ali, Ahmed Shahid and Mohd. Meenu are entitled to be S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 49/58 acquitted and they are so acquitted.
11. However, so far as accused Mohd. Ishtiyak is concerned, his case is different. He has been attributed with the overt acts of entering the bank with two guns, firing at Jitender and robbing Rs. 2,91,000/- from the cashier of the bank, by the prosecution. Prosecution has relied upon the depositions of bank employees PW-1 Ramesh Kumar; PW-3 Jaipal;, PW-9 Kamal Kishore and PW-10 K.R. Saini. They have also relied upon the testimony of two independent public witnesses namely PW-13 Mohd. Anish and PW-15 Santosh. All the Bank witnesses identified accused Mohd. Ishtiyak in court to be the person who entered the Bank with two guns, who fired at Jitender and who robbed Rs. 2,91,000/- from the cashier of the Bank. Independent public witnesses PW-13 Mohd. Anish and PW-15 Santosh also identified him as he came out of bank with one pistol in his hand.
12. The question which arises for consideration is as to whether the identification of accused Mohd. Ishtiyak by all these witnesses, is trustworthy.
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13. The incident in question took place on 8.12.2008. The accused persons Mohd. Ishtiyak, Saheed and Majid were arrested in FIR No. 5/09 PS Kalkaji on 5.1.2009. They made disclosure statement on 5.1.2009 itself about having robbed bank in the present case on 8.12.2008. However, intimation about arrest was given to PS Malviya Nagar only on 11.1.2009 vide DD No. 8A i.e. after 6 days. The TIP was sought to be conducted on 14.1.2009. There is thus enormous delay on the part of prosecution in this regard as the accused persons had been arrested on 5.1.2009, whereafter they had made disclosure about committing bank robbery in the present case. The delay goes against the prosecution and there is no explanation for this delay.
14. Apart from it, PW-1 Ramesh Kumar was examined firstly, in part on 1.12.2009. He stated that he did not notice any weapon in the hand of the person who entered the Bank on 8.12.2008 at about 3 pm. He could not identify the accused Mohd. Ishtiyak. He was cross examined by the Ld. Addl. PP that accused Mohd. Ishtiyak was the said person but he could not identify him. He also stated S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 51/58 that there was no CCTV camera in the Bank on that day. His further examination in chief was deferred on that for want of case property. He was further examined on 31.5.2013 when he identified accused Mohd. Ishtiyak as the person who had entered the Bank on 8.12.2008. He stated that on 17.1.2009 police had brought four persons in Bank and he had identified him. He further stated that on 1.12.2009 when he last deposed, he was threatened outside the court. However, in his cross examination he admitted that he deposed in court after more than 4 years in court and he did not make any complaint to police or court during this period of 4 years regarding the threat. Since this witness could not identify the accused in the first instance and identified him only after more than 4 years, without there being any TIP, and without there being any complaint that he was threatened outside the court, his identification of the accused Mohd. Ishtiyak in Court is not free from doubt. Much reliance thus cannot be placed on his identification of the accused Mohd Ishtiyak.
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15. Then, he was identified by PW-3 Jaipal, who is cashier in the bank. In his cross examination he had stated that being cashier, he was concentrating on payment and receipt and had turned up his face when he heard the gun shot. He stated that he did not see accused Mohd Ishtiyak firing at anybody. He also stated he does not remember if the person who entered his cabin had blood on his clothes or not or whether he was injured or not. It is very surprising that a person would not remember whether the person who entered his cabin to rob money was injured or not. He had also stated that he was not taken to Tihar Jail by police. In view of these replies, the identification of the accused Mohd Ishtiyak by this witness in Court does not inspire confidence.
16. The accused Mohd. Ishtiyak was then identified by PW-9 Kamal Kishore, Clerk of the Bank concerned. In his cross examination he stated that police had shown photographs of the accused to him, N.K. Pasricha and K.R. Saini. He also stated that even before going to Tihar Jail for TIP, he was shown the photograph of the accused in PS Malviya Nagar. When the S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 53/58 accused's photograph was shown to the witness in police station before taking him to Tihar for the purpose of TIP, the sanctity of identification gets obscure. Thus, much reliance cannot be placed on the identification of the accused by the witness in Court.
17. PW-10 K.R.Saini is the Manager of the Bank. He also identified accused Mohd. Ishtiyak. His identification of the accused is also not very emphatic. Although in his examination in chief he stated that Ishtiyak came in bank with pistols in his both hands. In his cross examination he stated that he came to know about the presence of the accused when he hit the cabin of the cashier. He stated that police had shown the photographs of the accused in the hospital and the accused was brought by police in bank on 7.1.2009. However, he was not taken to Tihar for TIP. It is not understood as to why this witness was not taken for TIP if was able to identify the accused. In any case since the photograph of the accused had already been shown by police to the witness, his identification of the accused in court, without being subjected to TIP, loses its sanctity.
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18. As such, identification of the accused by these four bank employees is not very very convincing and cannot be considered free from doubts.
19. Apart from these bank employees, accused Mohd. Ishtiyak was also identified by two independent public witnesses namely PW-13 Mohd. Anish and PW-14 Prabhat Kumar. Let me test their identification of the accused Mohd. Ishtiyak.
20. PW-13 Mohd. Anish stated that he saw a person with a pistol and identified Mohd. Ishtiyak to be the said person. He also stated that he was shown photographs of the accused but he could not tell whether the accused was holding two guns in his hands or one gun. In his cross examination, he stated that the distance between his shop and bank is about 40 feets. He also stated that police met him 7-8 times and photos were shown to him of the accused before he went to Tihar for TIP. He also stated that accused Mohd Ishtiyak took one minute in sitting on the bike and going away from there. Two things thus stand clarified from this deposition - one that the witness saw accused maximum for one minute and two, he was S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 55/58 shown the photographs. In these circumstances, when the witness saw the accused only for one minute, that too from a distance of 40 feet and was not even subjected to TIP, the identification is not too credible.
21. We now test the deposition of PW-15 Santosh. He deposed that one person came out of the bank with one pistol and saw only side face of him and identified accused Mohd. Ishtiyak to be the same person. In his cross examination he stated that he saw accused for only 10-15 seconds. He also stated that he was taken to Tihar after 15-20 days after the incident. This deposition is also not plausible as he himself stated that he saw the accused from side only for 10-15 seconds. The TIP was sought to be conducted on 14.1.2009 i.e. after more than a month of the incident whereas this witness claims to have been to Tihar for TIP after 15-20 days of the incident. The incident had taken place on 8.12.2008 and hence, as per this witness, he had been taken for TIP latest by 28.12.2008. This version is factually incorrect as the accused persons were arrested on 5.1.2009. If the arrests were made on 5.1.2009, how S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 56/58 can this witness be taken for TIP before that. Apart from it, it is hard to believe that a person having looked at a person for only 10-15 seconds would be able to identify him after about 3 years. For these reasons, even the deposition of this witness suffers from doubts.
22. There are also doubts in the prosecution story about the make of the pistol which was recovered from the accused Mohd. Ishtiyak. According to PW-24 SI A.K. Singh, one pistol of 'China' make was recovered from him at the time of his arrest on 5.1.2009 in FIR No. 5/09 PS Kalkaji and he seized the same by converting it into pullanda. However, when the pullanda was opened in Court, a pistol of 'US' make was found in that pullanda. As such, there is no coherence in the prosecution story regarding recovery of pistol.
23. According to prosecution, the robbery took place in the bank at about 3 pm. Many witnesses stated that at the time when the robber entered the bank, customers of the bank were also present in the bank. No customer of the bank has been examined. This circumstance is an important circumstance. There is no CCTV S.C. No.11/10 FIR No. 836/08 State vs. Mohd. Ishtiyak etc. 57/58 footage of the bank. Arrest of the accused persons was already doubted in judgment dt. 14.3.2012 in FIR No. 4/09 PS Kalkaji. It is settled law that prosecution is duty bound to prove its case beyond all reasonable doubts against the accused persons. When the initial arrest of the accused was not believed by a co-ordinate Court in FIR No. 4/09, when there is no CCTV footage of the bank showing involvement of accused Mohd. Ishtiyak, when there is no customer of the Bank it cannot be said that the prosecution has been able to prove its case beyond all reasonable doubts against the accused persons including accused Mohd. Ishtiyak. It is trite that in case there is any doubt in the prosecution story, its benefit has to go to the accused. Since the prosecution has failed to discharge its initial onus of proving its case beyond all reasonable doubt against the accused persons, the accused persons are entitled to be given the benefit of doubt. Hence, giving benefit of doubt to the accused persons, they are acquitted.
Announced in the open Court. (Rajeev Bansal)
Dated:20.08.2014 ASJ-3/South District
Saket Courts, New Delhi
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