Delhi District Court
State vs . (1) Vijay Kumar on 28 April, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 143/2011
Unique Case ID: 02401R0322872005
State Vs. (1) Vijay Kumar
S/o Bhola Ram
R/o N30/C46, H3 Block
Jahangirpuri, Delhi.
(Convicted)
(2) Manoj Kumar
S/o Ram Babu
R/o N30/D, H3 Block
Jahangirpuri, Delhi.
(Convicted)
(3) Ram Janam Pandey @ Janma
S/o Angad Pandey
R/o H. No. 719, Jeewan Park
Samaipur Badli, Delhi.
(Convicted)
(4) Islam
S/o Masoom
R/o Jhuggi No. H4, ND232
Jahangirpuri, Delhi.
(Convicted)
(5) Vicky S/o Sant Ram
R/o A178, DDA Flats,
Jahangirpuri, Delhi.
(Acquitted)
State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 1 of 81
FIR No. : 526/2004
Under Section : 394/397/120B/411/34 IPC
25/27/54/59 Arms Act
Police Station : Adarsh Nagar
Date of committal to Sessions Court : 11.04.2005
Date on which orders were reserved : 28.03.2012
Date on which judgment pronounced : 19.04.2012
JUDGMENT
Brief Facts:
1. As per the allegations, on 1.12.2004 at about 10:40 AM at main GTK Road near Panchwati, Adarsh Nagar, the accused Vijay Kumar, Manoj Kumar, Ram Janam @ Janma, Islam and Vicky in pursuance to the agreement and conspiracy, committed robbery of Rs.5,40,000/ from the victim Jagdev Singh, Cashier of Libra Filling Station, Gurmandi, Jahangirpuri, when he was going to deposit the said amount in a bank. It is further alleged that the accused Vijay Kumar, Manoj Kumar, Ram Janam @ Janma, Islam and Vicky while committing the above robbery in furtherance of their common intention also voluntarily caused hurt on the person of victim Jagdev Singh by using deadly weapon i.e. country made pistol and knife.
Case of prosecution in brief:
2. The case of the prosecution in brief is that on 1.12.2004 at about 10:30 PM, the complainant Jagdev Singh who was working as State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 2 of 81 a cashier at Libra Filling Station was going to the bank on his scooter for depositing cash amount of Rs.5,40,000/ kept in a bag along with payin slip of the bank. He was also accompanied by another employee of the same filling station namely Hardeep Singh in a separate scooter but when they reached at 100 number red light, due to heavy traffic they separated from each other. When Jagdev Singh reached near the Punjab National Bank, GTK Road, one motorcycle on which three boys were riding, came near his scooter and they stopped his scooter near the road divider and out of those three boys, two boys came to Jagdev Singh and one of them showed a revolver to him while the other one who was having a knife in his hand cut the rope of the bag and removed the bag from the scooter of Jagdev Singh. When Jagdev Singh tried to resist, the said boy gave knife blows on the right wrist and left thigh of Jagdev Singh and thereafter all three boys ran away from the spot on their motorcycle. In the meanwhile, Hardeep Singh, the colleague of Jagdev Singh, also reached the spot thereafter and tried to chase the assailants but could not succeed. Thereafter, the public persons took the Jagdev Singh to nearby Sehgal Nursing Home in an injured condition where he was treated and the police also recorded his statement. On the basis of the statement made by the complainant Jagdev Singh the present FIR was registered and investigations was initiated and during the investigations, the accused persons were arrested and after State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 3 of 81 completing the investigations the charge sheet was filed in the court.
CHARGE:
3. Ld. Predecessor of this court settled charges under Sections 120B/394 read with 120B/397 read with 120B Indian Penal Code against the accused Vijay Kumar, Manoj Kumar, Ram Janam @ Janma, Islam and Vicky. Further, charge under Section 25/27 Arms Act was also settled against the accused Islam. All the accused have pleaded not guilty and claim trial.
EVIDENCE:
4. In order to discharge the onus upon it, the prosecution has examined as many as nineteen witnesses.
Public Witnesses:
5. PW1 Sh. Jagdev Singh has deposed that on 01.12.2004 he was working as cashier at Libra Filling Station, Fruit Mandi, Jahangirpuri. He has further deposed that he used to collect all the cash from the Petrol Pump and deposit the same in the UCO Bank, Bank Complex, Azadpur, New Subzi Mandi. On the day of incident at about 10.30 he left the petrol pump with a sum of Rs. 5,40,000/ for depositing the same in the UCO Bank. According to the witness, he was on his scooter bearing No. DL 4S S 51879 and he was also having payin slip booklet and some visiting cards with him. He has State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 4 of 81 deposed that the money and the papers were kept in a green colour raxine bag which bag was lying in the front bucket of the scooter tied with the sutli. The witness has further deposed that one boy namely Hardeep who was also an employee of the said filling station was also behind him on another scooter for his safety and when he reached at Red Light of 100 number bus stand, there was some traffic on account of red light and when they reached at the cut of Indira Nagar, near PNB bank, one motorcycle came there and tried to hit him. The witness had further deposed that he tried to save himself but the three boys riding on the motorcycle put their motorcycle in front of his scooter and stopped him. According to the witness, he was stopped near the road divider and the boy who was sitting at the end, took out a revolver and pointed the same towards him and asked him to give the bag on which he (witness) caught hold the bag by his left hand and from right hand caught hold the scooter and refused to give the bag. The witness has further deposed that the boy gave butt blow of the revolver on his right hand of the witness but he resist and did not give the bag, when the boy who was sitting in the middle of the motorcycle, also came there and showed him the knife. Witness has stated that when he further resisted, the said boy gave knife blow on his right thigh at two places. As per the witness he again resisted, on which the third boy who was driving the motor cycle, removed his motorcycle to a distance and came to him and used force on him and State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 5 of 81 looted the bag containing the cash, visiting card and pay in slips and all the boys after looting the bag ran away on their motorcycle towards red light side. The witness has further deposed that his other companion boy namely Hardeep Singh, who was coming on a scooter for his safety came to him on which he (witness) asked him not to see him but to chase those three boys and thereafter he requested one public person to inform the filling station about the occurrence and he himself made a call to the filling station from his mobile phone after which he was removed to the Sehgal Nursing for treatment. The witness has further deposed that police met him in the hospital and narrated the entire incident to them.
6. The witness has identified the accused Vijay in the court (by pointing out towards him not having aware of his name) as the boy who was sitting on the last of the motorcycle and showed him revolver and threatened him to give the bag and also caused injuries on his right hand with the butt of the revolver. The witness has further identified the accused Manoj (by pointing out towards him not having aware of his name) as the boy who had showed him the knife and stabbed his left leg twice and caused injuries. The witness has also identified the third accused Vicky as the boy who according to him was perhaps the one who was driving the motor cycle and snatched the bag. According to the witness, he had remained in the hospital for one day and has also proved his statement Ex.PW1/A State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 6 of 81 which he had given to the police. The witness has explained that the incident had occurred in the year 2004 and now (in the year 2010) due to lapse of time he was confused about the identity of the accused.
7. Ld. APP also crossexamined the witness on the point of identity of the accused and the witness has clarified that it was the accused Islam who had snatched the bag from him by cutting the rope by a knife but he did not inflict any injuries upon his person by the knife. He has however denied that due to lapse of time he does not remember the fact that accused Islam also inflicted injury on her person. However, he has admitted that due to lapse of time of about 6 years, he could not explain the role properly during his examination inchief. The witness has specifically denied that accused Vicky was driving the motorcycle and voluntarily added that it was the accused Manoj who was driving the motorcycle. The witness has further denied the suggestion that due to lapse of time of about 6 years he was not able to explain the role of accused Vicky properly and has voluntarily pointed out towards the accused Islam, Manoj and Vijay as the three boys who were present at the spot and had committed the robbery with him. The witness has again denied that he is not identifying the accused Vicky deliberately and not explaining proper role due to lapse of time. The witness has also identified the country made pistol Ex.P1 as the same which was State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 7 of 81 pointed out towards him by the accused Vijay at the time of committing of robbery and he also pointed out correctly towards accused Vijay. In his further cross examination by the Ld. Addl. PP for the State, the witness further deposed that on two occasions, he went to the jail with the investigating officer for purposes of identification of the accused persons which Test Identification Parade could not be conducted as the accused refused to join the TIP proceedings. The witness has further identified the buttondar knife Ex.P2 as the same by which accused Islam cut the rope of the bag and looted the same. The witness has deposed that the police got recovered the money and the same was released to him on superdari and prior to taking the superdari the photographs of all the three parcels were taken which vide Ex.PW1/PA. After opening the sealed parcels three photographs with the currency notes were also taken which photographs are Ex.PW1/PB, Ex.PW1/PC and Ex.PW1/PD.
The witness has further identified the photocopies of the currency notes which are collectively Ex.PX. totalling to Rs.90,000/ running into 180 pages on both sides of each page. Witness has explained that due to lapse of time he could not state all the facts during his examination in chief.
8. In his crossexamination by Ld. Defence Counsels, the witness has admitted that there were several persons present at the time when the incident took place and the road was jammed. He has State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 8 of 81 further deposed that the incident of snatching occurred within three four minutes. The witness has further deposed that he can identify the accused by face but he is unable to give their exact names. He has further deposed that he was called by the police at the police station after arrest of accused persons and they were shown to him. He could not tell the make of motorcycle and its registration number. He has further deposed that he did not disclose any special mark of the country made pistol and knife to the police. The witness has admitted that he did not know the accused persons prior to the incident and has deposed that he was called to the police stated twice in respect of the present case. According to the witness at the time of incident he used to wear spectacles and has explained that the persons coming behind him took him to Sehgal Nursing Home for medical treatment and futher voluntarily explained that Hardeep Singh immediately arrived there but he (witness) told him to follow the boy who snatched the bag. He has further deposed that the person who was coming behind him on scooter asked him whether he had met with an accident on which he told the said persons that no accident occurred but the boys snatched the money bag from him and he had received injuries and also requested the said person to call at Petrol Pump though he did not ask the person his name. The witness has further deposed that on 07.07.2010 when his statement was recorded in the court he was confused about the identity of only one State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 9 of 81 person who was driving the motorcycle and further deposed that at the time of incident accused persons were having only one motorcycle and all the three accused persons were riding on it. He has further deposed that two persons got down and one person had shifted the motorcycle nearby. The witness has deposed that he came to know about the names of accused persons only after their arrest. He has denied the suggestion that he has named the accused Manoj and Islam at the instance of Ld. APP or that he has deposed falsely about the identity of accused Manoj and Islam or that they were not involved in the incident.
9. The witness has further deposed that he had already given details about the denomination of currency notes of Rs.5,40,000/ and he does not remember the exact denomination of currency notes. He has further deposed that each bundle of currency notes was having stamp of his petrol pump. He has further deposed that one person who was driving the motorcycle was wearing helmet and remaining two persons had covered their head with handkerchief. He has further deposed that the police recorded his statement once at the hospital and thereafter they came for enquiry at petrol pump and subsequently at police station. Witness does not remember how many documents he had signed during the investigations and has further deposed that police did not take his signatures on blank papers. According to the witness, the police called him at the police State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 10 of 81 station and told him the names of accused persons involved in the incident and explains that at the time of incident and when he was called at police station he did not know the name of accused persons. The witness has admitted that the currency notes which were released to him on superdari are not the same which were carried out by him on the day of incident and has further deposed that he was told that from the snatched money a car was purchased by the accused persons and thereafter the said car was sold and the money which was received is the same which was released to him on superdari. The witness has further deposed that he had seen the country made pistol at the time of incident as he was concentrating on it but he did not tell the measurement and make of country made pistol to the police. He has further deposed that he has identified the country made pistol in the court and has specified that it was the same country made pistol used in the incident whether it is called desi katta or revolver. He has denied the suggestion that in order to grab Rs.5,50,000/ he made out a false story of snatching or that no such incident took place with him in which motorcycle and country made pistol were used. The witness has further deposed that he had stated to the police the body description of three persons of medium height and medium built body.
10. The witness has deposed that he has been doing the job of cashier about 25 years prior to the incident and it was now (at the State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 11 of 81 time of deposition) about 40 years. He has further deposed that he used to go daily for depositing the cash. According to the witness, he was only cashier employed by the petrol pump and everyday he used to leave for deposit of cash between 10.00 AM and 10.30AM and daily one person used to accompany him on a separate vehicle. He has further deposed that on the day of incident Hardeep Singh was accompanying him on a separate two wheeler scooter but he does not remember its number. He admits that the incident took place during the day hours and at the time of incident there was a lot of traffic near the red light. According to the witness the person on two wheeler was just behind him prior to red light and has explained that he was at a distance of about 10 feet and in between there were two cars at red light. He has further denied that three persons had not come on one motorcycle at the time of incident or that no such robbery incident took place with him.
11. PW4 Hardeep Singh has deposed that he was working as Clerk at Libra Roadways Old Subzimandi and Jagdev Singh was working as Manager and used to deposit the cash amount in the bank. He has deposed that on 1.12.2004 Jagdev Singh was going to deposit the cash amount of Rs.5,40,000/ to the bank at about 10:30 AM on his scooter. According to the witness, he accompanied Jagdev Singh on separate scooter as usual and was following him but he did not see the incident since prior to his reaching the spot, the assailants had State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 12 of 81 already left the spot and when he reached near Jagdev, he (Jagdev) informed him (witness) saying "paiso wala bag chheen ke le gaye"
and also pointed out the way on which those persons ran after snatching the bank. According to the witness, he tried to chase the assailants but could not trace them and thereafter returned back at the spot and came to know that Jagdev Singh was already removed to Sehgal Nursing Home but the scooter of Jagdev was still lying on the road. According to the witness, he also went to the Sehgal Nursing Home and found Jagdev admitted there.
12. Addl. PP has cross examined this witness Hardeep as the witness was found relising from his previous statement. In the cross examination of Addl. PP, the witness has denied that his statement was recorded by the police on 1.11.2004 or that he had stated to the police that he reached at red light and saw Jagdev was injured by some boys who were on motorcycle. He admits that the boys after snatching the bag were running towards Azadpur side. He has denied that he stated to the police that he could identify the boys who had snatched the bag from Jagdev. When Addl. PP pointed out towards the accused Vicky, Islam and Vijay and suggested to the witness that these are the persons who were committing the robbery with Jagdev and also caused injuries to him, on which the witness has stated that he could not see all the above three at the spot and is unable to identify them. He has denied the suggestion that he has State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 13 of 81 deliberately not identified the accused in the court. The witness has not been cross examined on behalf of the accused persons.
13. PW6 Partap Singh has brought the vehicle registration file regarding the Maruti car bearing No. DL 6C 5643 showing that the said car was initially in the name of Anuradha Enterprises, 794, Joshi Path, Kaorl Bagh, Delhi and was sold and transferred in the name of Sh. R. C. Kohli S/o Sh. J. S. Kohli, 16D, Maurice Nagar, Delhi on 14.5.1999. The witness further deposed that on 29.6.2003, the said car was again transferred in the name of Jitender Khanna and thereafter on 14.10.2005 it was transferred in the name of Masoom S/o Mohd. Rafik, 795, THuts, Block H2 and H3, Jahangirpuri and presently is registered in the name of Masoom. The witness has also brought the record pertaining to the car which is Ex.PW6/A. The witness has not been cross examined on behalf of the accused and the evidence has gone uncontroverted.
14. PW10 Rajesh Kumar has deposed that in the year 2004 he had purchased a black color Pulsor motorcycle bearing No DL4SAQ0716 through one dealer and after about some time he had sold the said motorcycle to some dealer. He further deposed that the police made inquiries from him regarding the said motorcycle and he had handed over the documents i.e. delivery receipt which is Ex.PX, copy of RC which is Ex.PY and copy of ration card which is Ex.PZ, to the police which were taken into possession by the police vide State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 14 of 81 memo EX PW 10/A. According to him, the name mentioned on the document was the purchaser of the motorcycle but he does not recollect his name due to lapse of time. He has not been cross examined on behalf of the accused and the entire evidence has gone uncontroverted.
15. PW11 Pappu has deposed that he had produced the motorcycle of black color of his brother Vickey before the police which was taken into possession by the police vide seizure memo Ex.PW11/A. He does not recollect the number and make of the said motorcycle due to lapse of time. In his cross examination, the witness has admitted that his signatures were obtained by the police in the police station.
Medical Evidence:
16. PW2 Dr. Ruchi Malhotra has proved the handwriting and signatures of Dr. Mukund Khetan having worked with him during official duties. The witness after seeing the MLC of the victim Jagdev Singh deposed that he was brought to the hospital on 1.12.2004 at about 11:20 AM with alleged history of assault by four persons while he was on his scooter at around 11 AM and was examined by Dr.Mukund Khetan. The witness has proved that on local inquiry, following injuries were found:
State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 15 of 81
1. Sharp cut wound on left thigh anterior aspect measuring about 10 x 4 x 4 cm with artery bleeding deep. No nuerological defect.
2. Sharp cut wound over left thigh at anterior aspect near knee joint, measuring 8 x 4 x 4 cm, deep facia opened with arterial bleeding.
3. Abrasion over left shoulder.
4. Abrasion on right wrist lateral aspect.
17. The witness has proved the cause of injury as sharp inflicted woulds, suturing under general anesthesia. The witness has proved that the MLC Ex.PW2/A bears the signatures of Dr. Mukund at point A.
18. In her cross examination, the witness has deposed that the MLC was prepared under her supervision. She has denied the suggestion that the MLC was manipulated or that she has deposed falsely.
Police Witnesses:
19. PW3 W/ASI Radha Rani has deposed that on 1.12.2004 she was working as duty officer from 9 am to 5 pm and at about 12:15 pm, Ct. Jai Narayan brought a rukka on the basis of which he registered the present FIR copy of which is Ex.PW3/A. He further deposed that at about 11:15 am, wireless operator informed that two State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 16 of 81 boys on a motorcycle looted Rs.4,70,000/ from a person near Libra Filling Station Azadpur and the said entry was made vide DD No. 6A copy of which is Ex.PW3/C.
20. In her crossexamination by Ld. Defence Counsel, the witness has denied that the FIR is antetimed or that FIR has been manipulated at the instance of Investigating Officer. Witness has admitted that the entry no. 7 and DD No. 6 are written in the same ink.
21. PW5 W/ASI Seema has deposed that on 19.12.2004 she was posted at police station Saraswati Vihar and was working as duty officer from 9 AM to 5 PM and at about 1:55 PM, she recived a rukka from Ct. Rishi and registered the FIR No. 1151/04 under Section 25/54/59 Arms Act, copy of which is Ex.PW5/A. The witness has not been cross examined on behalf of the accused and the evidence has gone uncontroverted.
22. PW7 SI Rajesh Kumar has deposed that on 1.12.2004, he was posted as Incharge Mobile Crime Team (North/West) and on that day he along with member of the team reached the spot and inspected the scene of crime but no physical evidence was found.
According to him Ct. Chunni Lal took the photographs of the scene of crime from different angles. He prepared his detailed report which is Ex.PW7/A. He has not been cross examined on behalf of the accused and the entire evidence has gone uncontroverted. State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 17 of 81
23. PW8 HC Jai Narain has been examinedinchief by way of affidavit which is Ex.PW8/1. In his cross examination he has deposed that he left the spot with the rukka after 12 noon and it took him about 2025 minutes in the police station and thereafter he returned to the spot at around 1:00 PM. He is unable to tell whether anybody from the family of the injured was present in the hospital and has voluntarily added that he had seen one person Hardeep Singh who was there with him but he does not know if he was relative or not.
24. PW9 HC Chunni Lal has been examinedinchief by way of affidavit which is Ex.PW9/1. He has proved the negatives of the photographs which are Ex.PW9/B. (court observation: the positives are not on record). He has not been crossexamined on behalf of the accused and the entire evidence has gone uncontroverted.
25. PW12 HC Naresh has deposed that on 19.12.2004 he was posted at Special Staff, North West, Sector 17, Rohini and that day he along with SI Yuvraj Kishan, Ct. Vijay, Ct. Rishi and Ct. Arun went to Shah Alam Bandh, Jahangirpuri in a government vehicle bearing No. DL1LD5019 and accused Vijay @ Pahari was also with the who pointed out towards a maruti car of white color bearing No. DL6C5643 coming from Azadpur side. According to the witness the accused Vijay told them that his coaccused Ram State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 18 of 81 Janam Pandey and Manoj Gupta were present in the said car and thereafter the said car was stopped and both the persons sitting in the car were apprehended and after interrogation the person who was driving the car was found to be the accused Manoj and the other person sitting besides him was accused Ram Janam Pandey. The witness has deposed that the accused Ram Janam Pandey was arrested vide memo Ex.PW12/A and his personal search was conducted vide memo Ex.PW12/B. According to him the arrest memo and personal search of accused Manoj Gupta was also prepared and both the accused persons made their disclosure statements. The witness has deposed that pursuant to his disclosure statement accused Ram Janam Pandey got recovered one bundle of currency notes having a stamp of Libra petrol pump of denomination of Rs 100/ (total Rs ten thousand) from a box lying in a room of his house No. 719, gali No. 12, at Jeevan Park, Samaipur Badli which notes were kept in a polythene and was sealed in a white cloth pullanda with the seal of YK and thereafter were seized vide seizure memo Ex.PW12/D. The witness has deposed the accused Manoj also got recovered four bundles of currency notes of denomination of Rs 100/ (total forty thousand) and on three bundles recovered at the instance of accused Manoj and the stamp of Libra Petrol Pump was present on the same whereas the fourth bundle was stated to have been looted from A Block, Jahangirpuri by the accused Manoj. State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 19 of 81 According to the witness, the bundle recovered from the possession of the accused Manoj was also sealed and seized and further the maruti car was also taken into possession. The witness has correctly identified the accused Manoj, Vijay and Ram Janam Pandey in the court. He has also identified the case property i.e. photocopies of the currency notes placed on the judicial file collectively Ex.PX.
26. In his cross examination by Ld. Defence Counsel, the witness has deposed that the seizure memo of said car was prepared in his presence. According to him since accused Ram Janam was in his custody, Investigating Officer, did not ask him to sign other documents / memos. He has deposed that jhuggies were situated at a distance of about 100200 yards from the spot and public persons were asked to join the proceedings but they refused. According to him the house of the accused Ran Janam was constructed upto two story. He has further deposed that the box from which the notes were recovered was not locked and was only bolted and 34 persons were present in the house. According to the witness, the house of accused Manoj was constructed upto double storey on a plot of 2225 sq. yards but he is unable to tell the names of the persons present in the said house. He admits that the box from which the notes were recovered was not locked and has clarified that it was bolted and at that time 34 persons were present in the house. The witness has deposed that the photostate copies of the currency notes Ex.PX was State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 20 of 81 got done by the Investigating Officer in his presence and admits that from Ex.PX it cannot be differentiated as to which of the currency notes were recovered from the accused Ram Janam Pandey and which from the accused Manoj Gupta.
27. PW13 HC Rishi has deposed that on 19.12.2004 he was posted at Special Staff, North West, Sector 17, Rohini and on that day he along with SI Avinish Tyagi, Ct. Arun, Ct. Vijay and Ct. Naresh had left the said office in government vehicle bearing No. DL1LD5019 which was being driven by HC Shankar and at about 11:45 AM they reached at Mahendra Park, Rani Bagh where a secret information was received to SI Avinish Tyagi that one boy was standing with a motorcycle near Jheel Wala Park with an intention to commit an offence, who as per information was having illegal arms with him. According to the witness, on this information the said SI Avinish Tyagi asked 34 public persons to join the raiding party but none agreed and thereafter they all along with secret informer went to Jhil Wala Park, Harsh Vihar where on the pointing out by the secret informer accused Vijay @ Pahari was apprehended and from his formal search a country made pistol with two live cartridges (one was loaded in the pistol and the other was found from his pocket) were recovered. The witness has further deposed that the sketch of the said pistol and cartridges were prepared by SI Avnish Tyagi, carbon copy of which is Ex.13/A. (original is placed on judicial State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 21 of 81 case file FIR No. 1151/04, PS Saraswati Vihar). According to the witness, the said pistol and cartridges were kept in a cloth pullanda and were sealed with the seal of AKT and was seized vide seizure memo photocopy of which is Ex.PW13/B (Original is placed on judicial case file of FIR No. 1151/04, PS Saraswati Vihar). The witness has further deposed that thereafter SI Avnish Tyagi prepared rukka and handed it over to him at about 1:35 PM and he took the rukka to the police station and got the case registered vide FIR No. 1151/04 Police Station Saraswati Vihar. The witness has further deposed that thereafter he came back to the spot along with a copy of the FIR and original rukka and handed over the same to SI Yuvraj Kishan to whom further investigations of the case was entrusted. He has further deposed that SI Avnish Tyagi handed over the seizure memo and case property to SI Yuvraj Kishan who prepared the site plan at the instance of SI Avnish Tyagi and the statement of SI Avnish Tyagi was recorded by SI Yuvraj Kishan after which he was discharged. According to the witness, the accused Vijay @ Pahari was arrested vide his arrest memo, copy of which is Ex.PW13/C and his personal search was conducted vide personal search memo copy of which is Ex.PW13/D. He has further deposed that the said motorcycle was also seized vide seizure memo copy of which is Ex.PW13/E and the accused made his disclosure statement wherein he had disclosed about his involvements of robbery and looting the State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 22 of 81 petrol pump at Jahangirpuri and Azadpur Mandi with his associates. The witness has deposed that the disclosure statement was recorded by the IO and the carbon copy of which is Ex.PW13/F (All above original documents are placed in judicial case file of FIR NO. 1151/04 PS Saraswati Vihar). According to the witness, on the same day pursuant to the disclosure statement of accused Vijay SI Yuvraj Kishan, Ct. Vijay, Ct. Rishi, Ct. Naresh and Ct. Arun and himself went to Shah Alam Bandh, Jahangirpuri in the said government vehicle bearing NO. DL1LD5019 which was being driven by the said driver HC Shankar. He has further deposed that accused Vijay @ Pahari was also with them who pointed out towards a maruti car of white color bearing No. DL6C5643 which was coming from Azadpur road side and accused Vijay told them that in the said car his coaccused Ram Janam Pandey and Manoj Gupta were present. The witness has further deposed that he said car was got stopped and both the said persons sitting in the car were apprehended whose names on interrogation were revealed as Manoj and Ram Janam Pandey and they both were arrested. The accused Manoj was arrested vide memo Ex.PW13/G and his personal search was also conducted vide memo Ex.PW13/H and his disclosure statement was recorded vide memo Ex.PW13/J. The witness has deposed that pursuant to his disclosure statement accused Ram Janam Pandey got recovered one bundle of currency notes having a stamp of Libra petrol pump of State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 23 of 81 denomination of Rs 100/ (total Rs ten thousand) from a box lying in a room of his house No. 719, gali No. 12, at Jeevan Park, Samaipur Badli. The witness has deposed that the said notes were kept in a polythene and was sealed in a white cloth pullanda with the seal of YK and thereafter were seized vide seizure memo Ex.PW12/D. According to the witness, the accused Manoj also got recovered four bundles of currency notes of denomination of Rs 100/ (total forty thousand) and out of them three bundles recovered at the instance of accused Manoj had the stamp of Libra Petrol Pump was present and fourth was stated to be looted from A Block, Jahangirpuri by the accused Manoj. He has further deposed that the bundles recovered from the possession of accused Manoj were also sealed and seized vide seizure memo Ex.PW13/K and the maruti car was also taken into possession by the IO vide seizure memo Ex.PW13/L. According to the witness, the accused Vijay also got recovered six bundles of currency notes of 100 denomination each (out of which five bundles were having slip and stamp of Libra filling station and one was not having any slip and the same was stated to have been looted from the accused Manoj at Jahangirpuri). The witness has further deposed that the said currency notes which were having slip of the said filling station were given serial No. 1 and the other one bundle was given serial No. 2 and the polythene in which it was lying was given serial No.3. He has further deposed that the said polythene State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 24 of 81 with the currency notes were kept in a cloth pullanda and was sealed with the seal of YK and the said sealed parcel was taken into possession vide seizure memo Ex.PW13/M. The witness has deposed that accused Vijay and Manoj pointed out the place of incident vide pointing out memo Ex.PW13/N and Ex.PW13/O and on the pointing out by accused Ram Janam Pandey a bundle of currency notes of 100 denomination was also recovered from his residence which was having a slip of Libra filing station. The witness has correctly identified accused Manoj, Vijay and Ram Janam Pandey in the court. He has also identified the case property i.e. photocopies of the currency notes placed on the judicial file which are collectively Ex.PX.
28. In his cross examination by Ld. Defence Counsel, the witness has deposed that they had made a departure entry in writing but he did not make any separate entry as it was a common entry nor he recollected the number of the departure entry at the time of examination. He has further deposed that after starting from the office of Special Staff NW, he does not recollect where they went first nor he recollects the route taken for reaching to Rani Bagh. According to him in his presence SI Avnish Tyagi did not give any notice to any person for refusal to join the police party. He admits that the place where the accused was found sitting on the motorcycle is a thickly populated area with large no. of houses and has State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 25 of 81 voluntarily added that he does not remember if there were shops. Witness has denied that the types of katta as Ex.P1 area easily available in the market and also in the malkhana of the police station. According to him, the seizure memo of said car was prepared in his presence and the said memos were prepared while standing on the road at the Shah Alam Bandh area. The witness has also deposed that the house of accused Ram Janam was constructed upto two story but he is unable to tell the names of the persons present in the said house. He admits that the box from which the notes were recovered was not locked and adds that it was bolted. He has deposed the house of accused Manoj was constructed double storied on a plot of 2225 sq. yards. Witness has denied that the accused persons were not arrested in the manner deposed by him in his examination in chief. He has denied that no disclosure or recovery were effected in his presence from the accused persons or that that accused Vijay was not accompanying them to Shah Alam Bandh and he never pointed out towards any car wherein the other accused persons were sitting.
29. PW14 HC Vijay has deposed that on 19.12.2004 he was posted at Special Staff, North West, Sector 17, Rohini and on that day along with SI Yuv Raj Kishan, Ct. Naresh, Ct. Rishi and Ct. Arun went to Sha Alam Bandh, Jahangirpuri in a government vehicle bearing No. DL1LD5019 which was being driven by driver HC Shankar. According to the witness, the accused Vijay @ Pahari was State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 26 of 81 also with them who pointed out towards a maruti car of white color bearing No. DL6C5643 coming from Azadpur Road side and accused Vijay told them that in the said car his coaccused Ram Janam Pandey and Manoj Gupta were present. The witness has deposed that the said car was got stopped and both the said persons sitting in the car were apprehended and they were interrogated after which they came to know that the person who was driving the same was accused Manoj and the other who was sitting besides him was accused Ram Janam Pandey. The witness has deposed that both the accused persons were arrested and he had signed the arrest memo of accused Ram Janam Pandey which is Ex.PW12/A. He has deposed that his personal search was also conducted vide memo Ex.PW12/B and the arrest memo and personal search of accused Manoj Gupta was also prepared and their disclosure statements were recorded. According to the witness, pursuant to his disclosure statement, the accused Ram Janam Pandey got recovered one bundle of currency notes having a stamp of Libra petrol pump of denomination of Rs 100/ (total Rs ten thousand) from a box lying in a room of his house No. 719, gali No. 12, at Jeevan Park, Samaipur Badli which were seized vide seizure memo Ex.PW12/D. The witness has further deposed that the accused Manoj also got recovered four bundles of currency notes of the denomination of Rs 100/ (total forty thousand) and on three bundles recovered at the instance of the accused Manoj State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 27 of 81 stamp of Libra petrol pump was present and fourth was stated to be looted from A Block, Jahangirpuri by the accused Manoj. He further deposed that the bundle recovered from the possession of accused Manoj were also sealed and seized and the said maruti car was also taken into possession by the IO vide seizure memo. Witness has identified the accused Manoj, Vijay and Ram Janam Pandey in the court. He has also identified the case property i.e. the photocopies of the currency notes are Ex.PX collectively.
30. In his cross examination by Ld. Defence Counsel, the witness has deposed that the seizure memo of said car was prepared in his presence and this memo was prepared separately during the same proceedings while standing on the road at the Shah Alam bandh area. He admits that the spot was surrounded by jhuggies which jhuggies were situated at a distance of about 100200 yards from the spot. According to him, the house of accused Ran Janam was constructed upto two story but he is unable to tell the names of the persons present in the said house. He has further deposed that the house of accused Manoj was constructed double storied on a plot of 2225 sq. yards but he is unable to tell the names of the persons present in the said house. The witness has also deposed that the photostate copies of the currency notes Ex.PX was not got done by the IO in his presence. He has denied that he was made to sign certain papers by the IO or that no disclosure or recovery were State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 28 of 81 effected in his presence from the accused persons.
31. PW15 Ct. Arun has deposed that on 19.12.2004, he was posted at Special Staff, North West, Sector 17, Rohini and on that day he along with SI Avinish Tyagi, Ct. Rishi, Ct., Vijay and Ct. Naresh had left the said office in government vehicle bearing No. DL1LD5019 which was being driven by HC Shankar. He has further deposed that at about 11:45 AM, they reached at Mahendra Park, Rani Bagh where a secret information was received by SI Avinish Tyagi that one boy was standing with a motorcycle near Jhil Wala Park with an intention commit an offence and who was having illegal arms with him. According to the Witness, on this information the said SI Avinish Tyagi asked 34 public persons to join the raiding party but none agreed and thereafter they along with the secret informer went to Jhil Wala Park, Harsh Vihar where on the pointing out by the secret informer accused Vijay @ Pahari was apprehended and from his formal search a country made pistol with two live cartridges (one was loaded in the pistol and the other was found from his pocket) were recovered. The witness has deposed that the sketch of the said pistol and cartridges were prepared by SI Avnish Tyagi, carbon copy of which is Ex.13/A and the said pistol and cartridges were kept in a cloth pullanda and were sealed with the seal of AKT and was seized vide seizure memo photocopy of which is Ex.PW13/B. (originals are placed on judicial case file FIR No. State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 29 of 81 1151/04, PS Saraswati Vihar). The witness has deposed that thereafter SI Avnish Tyagi prepared rukka and handed it over the same to Ct. Rishi and after registration of the case the further investigation of the case was entrusted to SI Yugraj who also reached the spot SI Avnish Tyagi thereafter handed over the seizure memo and case property to SI Yuvraj Kishan who prepared the site plan at the instance of SI Avnish Tyagi. The witness has further deposed that the statement of SI Avnish Tyagi was recorded by SI Yuvraj Kishan after which he was discharged. He has further deposed that the accused Vijay @ Pahari was arrested vide his arrest memo, copy of which is Ex.PW13/C and his personal search was conducted vide personal search memo copy of which is Ex.PW13/D and thereafter the motorcycle was also seized vide seizure memo copy of which is Ex.PW13/E. According to the witness, the accused made his disclosure statement wherein he had disclosed about his involvements in robbery and looting the petrol pump at Jahangirpuri and Azadpur Mandi with his associates vide Ex.PW13/F. (all above original documents are placed in judicial case file of FIR No. 1151/04 PS Saraswati Vihar). The witness has further deposed that on the same day pursuant to the disclosure statement of accused Vijay SI Yuvraj Kishan, Ct. Vijay, Ct. Rishi, Ct. Naresh and himself went to Shah Alam Bandh, Jahangirpuri in the said government vehicle bearing No. DL1LD5019 which was being driven by the State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 30 of 81 said driver HC Shankar and accused Vijay @ Pahari was also with them and on his pointing out the maruti car of white color bearing No. DL6C5643 was stopped and the Ram Janam Pandey and Manoj Gupta were apprehended, arrested and personally searched and thereafter their disclosure statements were recorded. The witness has deposed that pursuant to his disclosure statement, the accused Ram Janam Pandey got recovered one bundle of currency notes bearing a stamp of Libra petrol pump of denomination of Rs 100/ (total Rs ten thousand) from a box lying in a room of his house No. 719, gali No. 12, at Jeevan Park, Samaipur Badli which notes were kept in a polythene and given serial no. 7 was sealed in a white cloth pullanda with the seal of YK and thereafter were seized vide seizure memo Ex.PW12/D. According to the witness, the accused Manoj also got recovered four bundles of currency notes of denomination of Rs 100/ (total forty thousand) out of which three bundles recovered at the instance of accused Manoj stamp of Libra petrol pump was present and the fourth was stated to have been looted from A Block, Jahangirpuri by the accused Manoj and the said bundles were sealed and seized vide seizure memo Ex.PW13/K and the maruti car was also taken into possession by the IO vide seizure memo Ex.PW13/L. The witness has further deposed that the accused Vijay also got recovered six bundles of currency notes of 100 denomination each (out of which five bundles were having slip and stamp of Libra filling State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 31 of 81 station and one was not having any slip and the same was stated to be looted from accused Manoj at Jahangirpuri). The witness has deposed that the said currency notes which were having slip of the said Libra filling station were given serial No. 1 and the other bundle of Jahangir Puri was given serial No. 2 and the polythene in which it was lying was given serial No.3 and the said polythene with the currency notes were kept in a cloth pullanda and was sealed with the seal of YK and was taken into possession vide seizure memo Ex.PW13/M. The witness has deposed that thereafter the accused Vijay and Manoj pointed out the place of incident vide pointing out memo Ex.PW13/N and Ex.PW13/O. Witness has identified the accused Manoj, Vijay and Ram Janam Pandey in the court. He has also identified the case property i.e. the photocopies of the currency notes are Ex.PX collectively.
31. In his cross examination by Ld. Defence Counsel the witness has deposed that they had made a departure entry in writing but he had not made any separate entry as it was a common entry. According to him there was a time gap of one hour since they started from the office of Special Staff till the secret informer met them. According to him in his presence SI Avnish Tyagi did not give any notice to any person for refusal to join the police party. He is unable to tell if SI Avnish Tyagi had called any persons from the houses to join the police party after the apprehension of the accused. He also State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 32 of 81 does not recollect if before searching the accused SI Avnish Tyagi had offered his search to accused. He has denied that the types of katta as Ex.P1 area easily available in the market and also in the malkhana of the police station. He has also denied that the cartridges have been planted upon the accused. He has deposed that the seizure memo of said car was prepared in his presence and states that the memos were prepared while standing on the road at the Shah Alam Bandh area. According to the witness, the house of accused Ram Janam was constructed upto two stories and he resided at the ground floor but he is unable to tell the names of the persons present in the said house. He has further deposed that the house of accused Manoj resides in the single storied jhuggi constructed on 2025 sq feet but he does not recollect who were present at the house of accused Manoj nor can he tell their names. The witness has further deposed that the jhuggi of Vijay is single story situated at 2025 sq. feet area but he does not recollect how many persons were present in his house. He admits that the bundles of currency notes were not locked in any box or Almirah. The witness has denied that suggestion that the accused persons were not arrested in the manner deposed by him in his examination in chief or that he was made to sign certain papers by the IO. He further denied that no disclosure or recovery were effected in his presence from the accused persons or that the accused Vijay was not accompanying them to Shah Alam Bandh and he never State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 33 of 81 pointed out towards any car wherein the other accused persons were sitting.
32. PW16 Ct. Harender has deposed that on 27.05.2005 he was posted at special staff and on that day he along with SI Bhatia, HC Baljeet and Ct. Satish Kumar were present at about 4 PM at Mangal Bazar Chowk, Jahangirpuri, when a secret informer informed them that Islam involved in this case will come at Libra petrol pump. According to the witness, the Investigating Officer asked public persons to join the raiding party but none agreed to join the raiding party and went away without disclosing their names and addresses. At about 6:30 PM on the pointing out of the secret informer they apprehended one person who was going towards Mahendra Park side who was interrogated and he disclosed his name Islam after which he was arrested vide memo Ex.PW16/A and his personal search was conducted vide memo Ex.PW16/B and on interrogation he made his disclosure statement vide memo Ex.PW16/C. The witness has further deposed that in pursuance of his disclosure statement he led the police party to his jhuggi and got recovered one knife which was lying under a box and the investigating officer prepared a sketch of the knife vide memo Ex.PW16/D and it was taken into possession vide memo Ex.PW16/E. He has correctly identified the accused Islam and the State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 34 of 81 knife Ex. PW16/1.
33. In his cross examination by Ld. Defence Counsels, the witness has admitted that the place of arrest of the accused is a residential area and many public persons were passing through the way and at the time of arrest, IO asked public persons to join the investigations but none agreed. He has denied hat he did not join the investigations of the case or that accused did not make any disclosure statement or that no knife was recovered at his instance.
34. PW17 Insp. Yugraj Krishan Bhatia has deposed that on 19.12.2004, he was posted at special staff as SI, North West district and on that day he went on the call to Harsh Vihar Jheel wala Park in the area of PS Saraswati Vihar. According to the witness, SI Avnish Tyagi along with Ct. Arun, Ct. Rishi, Ct. Vijay, Ct. Naresh were present. He has further deposed that Ct. Rishi handed over to him the copy of FIR No. 1151/04 PS Saraswati Vihar with original rukka for further investigation and SI Avnish Tyagi handed over to him over sealed parcel containing country made pistol and two live cartridges sealed with the seal of AKT, copy of seizure memo, Form FSL, the accused Vijay and the silver motorcycle bearing No. DL 8S AC 1765 was taken into possession. According to the witness, he recorded statement of SI Avnish Tyagi and relieved him and thereafter accused was interrogated wherein the accused disclosed his involvement in this case the copy of disclosure statement is State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 35 of 81 Ex.PW13/F. The witness has deposed that the accused Vijay Kumar was arrested copy of memo is Ex.PW13/C and his personal search was conducted by him copy of memo is Ex.PW13/D. (Original memos are placed in judicial case file of FIR NO. 1151/04 PS Saraswati Vihar). According to the witness, in pursuance to the disclosure statement of accused Vijay, he led the police party to Shah Alam Bandh, Jahangirpuri where accused Vijay pointed out towards a maruti car of white color bearing No. DL6C5643 coming from Azadpur road side and the accused Ram Janam Pandey and Manoj Gupta were apprehended, arrested, personally searched and their disclosure statements were recorded. According to the witness disclosure statement of accused Ram Janam Pandey was recorded vide memo Ex.PW12/C and accused Manoj also made his disclosure statement vide memo Ex.PW13/J. Witness has further deposed that pursuant to his disclosure statement accused Ram Janam Pandey got recovered one bundle of currency notes having a stamp of Libra petrol pump of denomination of Rs 100/ (total Rs ten thousand) from a box lying in a room of his house No. 719, gali No. 12, at Jeevan Park, Samaipur Badli which were seized vide seizure memo Ex.PW12/D. Witness has further deposed that the accused Manoj also got recovered four bundles of currency notes of denomination of Rs 100/ (total forty thousand) out of which three bundles recovered at the instance of accused Manoj stamp of Libra petrol pump was State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 36 of 81 present and fourth was stated to be looted from A Block, Jahangirpuri by the accused Manoj. According to the witness, the bundle recovered from the possession of accused Manoj were also sealed and seized vide seizure memo Ex.PW13/K and the said maruti car was also taken into possession by him vide seizure memo Ex.PW13/L. Her further deposed that all the two accused persons namely Vijay and Manoj pointed out the place of occurrence and he prepared pointing out memo in this regard vide memo Ex.PW13/N and Ex.PW13/O. The witness has deposed that on 31.01.2005 as per the directions of the Hon'ble court regarding release of money of Libra Petrol pump, he got photographed the sealed parcels and thereafter photocopies of all the currency notes were got done and they were kept in the judicial file.
35. The witness has further deposed that on 27.05.2005, he along with Ct. Harender, HC Baljeet and Ct. Satish Kumar were present at about 4 PM at Mangal Bazar Chowk, Jahangirpuri. According to him, one secret informer informed them that Islam involved in this case would come at Libra petrol pump on which he asked public persons to join the raiding party but none agreed to join the raiding party and went away without disclosing their names and addresses. The witness has further deposed that at about 6:30 PM on the pointing out of the secret informer they apprehended one person who was going towards Mahendra Park side at Mangal Bazar State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 37 of 81 Chowk. According to the witness, the person was interrogated and he disclosed his name Islam and thereafter he was arrested vide memo Ex.PW16/A and his personal search was conducted vide memo Ex.PW16/B and on interrogation he made his disclosure statement vide memo Ex.PW16/C. According to the witness, in pursuance of his disclosure statement, the accused Islam led the police party to his jhuggi and got recovered one knife which was lying under a box sketch of the knife vide memo Ex.PW16/D and taken into possession vide memo Ex.PW16/E.
36. According to the witness, on 28.06.2005 accused Vickey surrendered before the court and was arrested vide memo Ex.PW17/B and His personal search was also conducted vide memo Ex.PW17/C and he made disclosure statement vide memo Ex.PW17/D. The witness has deposed that the accused was directed to be muffled and he moved an application vide Ex.PX 7 for TIP of the proceedings but accused Vickey refused to join the TIP proceedings vide Ex. PX 6. According to the witness, during investigations he also collected the proof of ownership of motorcycle and the car vide Ex.PX, Ex.PY and Ex.PZ and the said documents were seized vide seizure memo (photocopy of RC, Delivery note and photocopy of ration card) which is Ex.PW10/A. The witness has correctly identified the accused as well as the case property in the State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 38 of 81 court.
37. In his cross examination by Ld. Defence Counsel, the witness has deposed that they had informed the family members of the accused Vijay on his arrest. Witness has denied the suggestion that the accused had been lifted from his house and has voluntarily added that he was handed over to him by SI Avnish Tyagi. He has deposed that he had made an entry before going to the spot but he cannot tell the details of the entry. He further deposed that he had only sent the documents to the DCP (NW) for grant of sanction under Section 39 of Arms Act but did not sent him the weapon i.e. the katta nor the same was demanded from him. Witness has denied that the katta and the cartridges have been planted upon the accused in connivance with SI Avniash Tyagi only to falsely implicate the accused in the present case. He has further deposed that he had made inquiries about the ownership of the pulsar motorcycle and it was not a stolen motorcycle and has voluntarily added that the said motorcycle belong to the accomplice of Vijay namely Islam. He is unable to tell how the motorcycle had been released to one Mohd. Wakil S/o Kalu nor can he give the details of the ownership of the same. According to the witness, the seizure memo of said car was prepared in his presence. The witness has deposed that he spot was surrounded by jhuggies which jhuggies were situated at a distance of about 100200 yards from the spot. He has deposed that the secret State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 39 of 81 informer was not with them and states that the respective houses of both the accused persons was opened when they reached there. The witness has further deposed that the house of accused Manoj was constructed double storied on a plot of 2225 sq. yards but he is unable to tell the names of the persons present in the said house. Witness has denied the suggestion that the accused persons were not arrested in the manner deposed by him in his examination in chief. He has also denied that accused persons had not pointed out any place of occurrence or that he was made to sign certain papers by the investigating officer or that no disclosure or recovery were effected in his presence from the accused persons.
38. PW19 SI Anuj Nautiyal has deposed that on 1.12.2004 he was posted as SI at Police Station Adarsh Nagar and on that day vide DD No. 6A which Ex.PW3/C, he was directed to reach the spot at Panchawati Adarsh Nagar, Sehgal Nursing Home. According to him, when he reached there he found the injured Jagdev Singh admitted in the ICU and he collected his MLC and the doctors declared him fit for statement on which he recorded his statement which Ex.PW1/A on the basis of which he prepared rukka Ex.PW3/B and go the case registered through Ct. Jag Narain. The witness has deposed that he also found one public witness Hardev Singh in the hospital who claimed himself to be eye witness and he accompanied Hardev Singh to the spot. According to the witness, in State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 40 of 81 the meanwhile Ct. Jag Narain reached the spot i.e. main road Azad Pur Mandi near Sehgal Nursing Home Original rukka and the copy of the FIR. The witness has deposed that thereafter he prepared the site plan at the instance of Hardev Singh which is Ex.PW19/A after which he recorded statement of Hardev Singh and relieved him. The witness has further deposed that he had also called the crime team who in the meantime came at the spot and after inspecting the spot of the incident prepared the report Ex.PW7/A. He also recorded statement of the incharge and also the photographer of the crime team and thereafter he reached Libra filling station Jahangir Puri and made inquiries but he could not find any leads. According to the witness, in the evening they returned to the police station and recorded the statement of Ct. Jagnarain and relieved him. He further deposed that on 16.12.2004 the investigations of the case were handed over to Special staff N/W and he therefore deposited the file with MHC(R).
39. In his cross examination by Ld. Defence counsel, the witness has deposed that he reached the hospital at 11.25 AM and at that time he found the victim conscious, oriented and was fit to make a statement. According to him the spot of the incident is hardly 100 meter from Sehgal Nursing Home. He has admitted that apart from the complainant and Hardev Singh there were other employees in the petrol pump. He has denied that he did not record the other State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 41 of 81 independent employees of the petrol pump. He has admitted that between the spot and the hospital a few rehriwalas stand there but he has denied that there is large number of offices in the area. According to the witness, the victim/eye witnesses did not tell him how many boys were wearing helmets and has voluntarily added that they were not remembering the same but only told him that they could identify the accused on seeing them.
Statement of Accused:
40. After completing the prosecution evidence, statements of accused were recorded under Section 313 Code of Criminal Procedure, in which all the incriminating evidence / material was put to them which they denied. According to the accused Vijay he is innocent and has been falsely implicated by the police. He stated that nothing was recovered from his possession or at his instance and the recovery has been planted upon him by the police officials. He has denied of having made any disclosure statement and stated that the various memos and proceedings have been conducted by the police of their own and he has nothing to do with the alleged incident. According to him, he was initially implicated in case FIR No. 1151/04 of Police Station Saraswati Vihar under Arms Act after which the present case was foisted upon him. The accused Manoj has stated that he is innocent and has been falsely implicated by the State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 42 of 81 police after lifting from his residence. He stated that nothing was recovered from his possession or at his instance and the recovery has been planted upon him by the police officials. He has denied of having made any disclosure statement and stated that the various memos and proceedings have been conducted by the police of their own and he has nothing to do with the alleged incident. The accused Ram Janam Pandey has also stated that he is innocent and has been falsely implicated by the police after lifting from his residence. According to him, nothing was recovered from his possession or at his instance and the recovery has been planted upon him by the police officials. He has denied of having made any disclosure statement and stated that his signatures had been obtained by the police on some blank papers which were later on converted into various memos. According to accused Islam he was lifted from his house and falsely implicated in this case. According to him, nothing was recovered from his possession or at his instance and the recovery has been planted upon him by the police officials. He has stated the his signatures were taken by the police on some blank papers forcibly. The accused Vicky has stated that he is innocent and has nothing to do with the alleged incident and has been falsely implicated by the police. According to him nothing was recovered from his possession or at his instance. He has denied of having made any disclosure statement.
State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 43 of 81 FINDINGS:
41. I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also considered the testimonies of various witnesses examined by the prosecution and also the written memorandum of arguments filed on behalf of the accused. My findings are as under:
Identity of the accused:
42. The case of the prosecution is that on 1.12.2004 at about 10:30 AM the victim Jagdev Singh (PW1) the cashier of Libra Filling Station was going to deposit the cash from the Petrol Pump to UCO Bank, Bank Complex, Azadpur, New Sabzi Mandi, on his scooter bearing No. DL4S51879 and when he reached at Red Light of 100 number stand, near Punjab National Bank, one motorcycle came there and tried to hit him but he managed to save himself but again the said motorcycle in which three boys were riding came in front of his scooter and forcibly stopped his scooter near the road divider. The boy who was sitting on the end, took out a revolver and pointed towards Jagdev Singh and asked him to hand over the bag to him but he caught hold of the bag by his left hand and from right hand he caught hold of the scooter. According to the victim Jagdev Singh, the said boy gave butt blow of the revolver on his right hand and then the boy who was sitting in middle of the motorcycle also came there State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 44 of 81 and showed him a knife and when he resisted, the said boy gave a knife blow on his left thigh at two places and when he again resisted, the third boy who was driving the motorcycle removed his motorcycle at a distance and came to him and used force on his person and looted the bag which was containing the cash, visiting cards and pay in slips and thereafter all three boys ran away on their motorcycle towards red light side.
43. The victim Jagdev Singh (PW1) has correctly identified the accused Vijay Kumar as the boy who was sitting last on the motorcycle and was carrying revolver and has threatened him to handover the bag to him and also shown to him the revolver and also caused injuries on his right hand by the but of the revolver. He has further identified the accused Manoj Kumar as the boy who showed him a knife and gave knife blow on his left thigh at two places. However, in so far as the boy who was driving the motorcycle is concerned, the victim is not confirmed and submits that he was a tall boy. Initially he pointed out toward the accused Vicky stating that he could be the same boy but he is not sure but later confirmed that it was not Vikcy who was driving the motorcycle. He has specifically identified the accused Islam as the same person who had snatched (used force) the bag by cutting the rope of bag by knife but has denied the suggestion of the Ld. Addl. PP that Islam has also inflicted injury upon him with a knife and has identified him as the boy who State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 45 of 81 had only cut the rope by the knife.
44. Here I may observe that the incident is of the year 2004 and the victim who is in his sixties, had been examined in the year 2010 i.e. after a gap of almost six years. Therefore, under these circumstances, the possibility of the witness not recollecting who did what, cannot be ruled out. It is further evident from the record that the accused Vijay, Vicky and Islam had all refused to participate in the Judicial Test Identification Parade proceedings and therefore under these circumstances, their identification in the Court will hold good. The witness Jagdev Singh is very categorical about the identity of the accused when he was examined in the court, there is no reason to treat his testimony with suspicion more so as the accused being not known to the victim previously and the victim Jagdev Singh had seen them for the first time during the incident. Ld. Defence Counsel has pointed out that the witness Jagdev Singh has admitted that at the time of incident, he used to wear spectacles and therefore it is impossible that he could have clearly seen the accused the time of the incident. In this regard, I may observe that though this question was put to the witness, yet it is evident that this question is highly vague and misleading because it was never specified to the witness whether the spectacles about which the question was being put was of distance or near vision and hence the victim/ witness Jagdev Singh has not clarified whether the spectacles State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 46 of 81 which he was using were of Distant Vision or Near Vision nor the number of the spectacles has been got ascertained. I may further observe that when this question was put there was no specific observation made by the Ld. Predecessor Court before whom the witness was examined that the witness at the time of the examination was wearing any spectacles, indicating that there was no problem with at least the distance vision of the victim. It is for this reason that the witness gave a general answer to a vague and general question put to him. Even otherwise assuming for a moment that the spectacles were of distance vision, the fact that the incident took place in broad day light (around 10:30 AM) and the accused would have been extremely close to the victim when they snatched his bag and inflicted injuries upon him with butt of the revolver and the knife while snatching the bag and it is certain that during this process when the victim gave a stiff resistance to the assailant, he had sufficient time to clearly observe them so as to identify them later in the Court. Further, it is scientifically and medically proven fact that human being tend to remember facts and details of incidents which suddenly take place unexpectedly causing emotions like stress, fear, anxiety or even happiness to occur. Hence, under these possibilities, the victim who had bravely resisted and fought the assailants would not have forgotten the faces of his assailants so easily. The other reason why the testimony of victim Jagdev Singh is worthy of credit is because, State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 47 of 81 had it been so that he wanted to implicate one and at the instance of the police, he would also have identified Vikas and also identified the accused Islam as the boy who stabbed him which he did not do and rather, chose to depose independently of what was suggested to him. This being the background, I hereby hold that the identity of the accused Vijay, Manoj and Islam stand conclusively established as the persons who had participated in the offence.
45. Further, in so far as the accused Ram Janam Pandey is concerned, he along with accused Manoj had been apprehended by a team of Special Staff, (North West) headed by SI Avnish Tyagi on 19.12.2004 (i.e. after 19 days of the incident), on the basis of the disclosure statement made by accused Vijay who also pointed towards the white colour Maruti Car bearing No. DL6C5643 which was coming from the Azadpur road side which car was stopped and accused Manoj and Ram Janam were apprehended. It is further evident that during interrogation they disclosed their involvement in the offence and they also led the police party to their respective residences from where they got recovered currency notes which were robbed from the victim Jagdev Singh which currency notes were bearing seal of Libra Petrol Pump. From the possession of accused Ram Janam Pandey one bundle of currency notes of 100 denomination to the tune of Rs.10,000/ were recovered which notes were having the slip bearing the stamp of Libra Filling Station vide State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 48 of 81 memo Ex.PW12/D and Ram Janam Pandey has not been able to explain the possession of these currency notes. Further, from the possession of accused Manoj four bundles of currency notes of 100 denomination totalling to Rs.40,000/ were recovered with a slip bearing the stamp of Libra filling Station vide memo Ex.PW13/K and Manoj is unable to explain the possession of the said currency notes. The accused Manoj and Ram Janam have also been identified by the members of the police party i.e. HC Naresh (PW12), HC Rishi (PW13), Ct. Vijay (PW14), Ct. Arun (PW15). In view of the above, I hereby hold that the identity of Manoj and Ram Janam Pandey also stands established.
Arrest of the Accused and Recovery of Currency Notes/ Country made Revolver:
46. Case of the prosecution is that none of the accused could be apprehended after the incident but thereafter on 19.12.2004 a secret information had been received by Special Staff of North West District that one boy was sitting in a pulsar motorcycle near Harsh Vihar Jheel Wala Park near Fawara Chowk who was carrying illegal arms and could commit some offence. Pursuant to this information, a police party comprising of Ct. Arun, Ct. Naresh, Ct. Vijay and Ct.
Rishi headed by SI Avnish Tyagi reached the spot and on the pointing out of the secret information the accused Vijay @ Pahari State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 49 of 81 was apprehended and on his personal search a country made pistol along with two live cartridges were recovered and after interrogation he disclosed his involvement in the present case along with his associates. Thereafter, the accused Vijay @ Pahari led the police party to Shah Alam Bandh, Jahangirpuri and pointed out towards a Maruti Car of white color bearing No. DL6C5643 which was coming from Azadpur road side and the said car was got stopped and the persons sitting therein were apprehended who disclosed their names as Ram Janam and Manoj Kumar who were arrested. Both Ram Janam and Manoj Kumar were interrogated and they disclosed their involvement in the present case. Thereafter, accused Ram Janam Pandey got recovered one bundle of currency notes having a stamp of Libra Filling Station of denomination of Rs 100/ totalling Rs. 10,000/. Similarly, the accused Manoj also got recovered four bundles of currency notes of denomination of Rs 100/ totalling Rs. 40,000/. The accused Vijay @ Pahari also took the police party to his house and got recovered six bundles of currency notes of 100 denomination and only one bundle was having the seal of Libra Filling Station and it was disclosed that the said currency notes were looted by them.
47. Before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 50 of 81 extent it is relevant, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
48. Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:
1. Anything, state of things, or relation of things, or capable of being perceived by the senses,
2. Any mental condition of which any person is conscious.
49. It further provides five illustrations as to what would constitute a fact which are as under:
(a) That there are certain objects arranged in a certain order in a certain place, is a fact
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a
State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 51 of 81
certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact.
50. A cojoint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles".
51. The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 52 of 81 admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. KingEmperor reported in 74 Ind App 65:
AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under: "Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......"
".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not"
which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S. 27. The Judicial Committee had in that case to consider how much of the information State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 53 of 81 given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information. . . .. ...... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."
"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered. This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
52. After considering the settled principles the Hon'ble Apex Court observed as under:
State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 54 of 81
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 55 of 81 inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence.
53. Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 56 of 81 Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.
The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence.
54. In the said case the Hon'ble Supreme Court further went to explain that "..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 57 of 81 the discovery of a fact that is keeping of the articles by the accused at the place mentioned.
However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place"
where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
55. Now applying the settled principles of law to the facts of present case, it is evident that the disclosure statements of the accused Vijay, Manoj and Ram Janam while they were in police custody, it is only that part of the disclosure statement which is admissible which led to the discovery of the facts. In the present case the police party was not aware of the mode of distribution of currency notes between the various accused and the place where the currency notes of 100 denomination bearing the seal of Libra Filling Station so looted / robbed from the victim Jadev Singh had been kept. It is only pursuant to the disclosure statements of accused State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 58 of 81 Vijay, Manoj and Ram Janam that the said recovery had been effected which currency notes have already been duly identified by the victim Jagdev Singh as the same which had been looted from him on 01.12.2004. The victim Jagdev Singh has further explained that the cash collected in the filling station used to be deposited in the bank on day to day basis and the same was taken after converting into bundles and after these currency notes were sealed and the stamp of Libra Filling Station were put on the same for the purposes of identity and therefore under these circumstances there is no reason to doubt the said recovery from the accused and this being the background I hold that the disclosure statements of accused Vijay, Manoj and Ram Janam would be admissible to the extent of recovery of the currency notes.
56. Ld. Defence Counsel for the accused has vehemently argued that the recovery has been planted upon the accused and in this regard has pointed out various discrepancies in the testimonies of various police witnesses who are the members of the raiding party and who have contradicted themselves with regard to the description of houses of the accused from where the recoveries were effected and on nonjoining of the independent witnesses. He has further argued that Judicial Test Identification of the currency notes has not been got conducted by the Investigating Officer and therefore under these circumstances no reliance can be placed on the identification of the State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 59 of 81 currency notes by the victim.
57. I have duly considered the submissions made before me and in this regard I may observe the bundles of the currency notes recovered from the various accused persons were bearing the seal and the stamp of the Libra Filling Station and have been specifically mentioned by the witness in his testimonies in the court which seals have been duly observed by the predecessor Court (as evident from the court observations). Therefore, the identity of the currency notes already being there on record, there is no requirement of Judicial Test Identification Parade. Further, all the currency notes recovered from the possession of accused Vijay, Manoj and Ram Janam Pandey totalling to Rs.90,000/ were having the seal and stamp of Libra Filling Station have been duly identified by the victim in the court as the same which were robbed from him on the date of incident. Here I may observe that, it is common experience that public persons are generally reluctant to join police proceedings. There is general apathy and indifference on the part of public to join such proceedings. This position of law was reiterated in Aslam and Ors. (Mohd.) Vs. State reported in 2010 III AD (Delhi) 133 wherein it was observed by Hon'ble High Court that reluctance of the citizens to join police proceedings is well known and needs to be recognized. It cannot be disputed that public does not want to get dragged in police and criminal cases and wants to avoid them, because of long drawn trials State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 60 of 81 and unnecessary harassment. Similar view was taken in Manish vs. State, 2000 VIII AD (Scheduled Caste / Scheduled Tribes (Prevention of Atrocities) Act, 1989) 29 and in A. Bhai vs. State, AIR 1989 SC 696, where it was held that we cannot be oblivious to the reluctance of the common man to join such raiding parties organized by the police, lest they are compelled to attend police station and Courts umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit. Moreover, there is no reason to disbelieve testimony of police officials regarding recovery of currency notes at the instance of accused Vijay, Manoj and Ram Janam. Their testimonies cannot be rejected merely because they happen to be police officers. As observed by the Hon'ble Supreme Court in Tahir vs. State, (1996)3 SCC 338, no infirmity attaches to the testimony of police officials merely because they belong to the police force. It was observed in Aner Raja Khimavs. The State of Saurashtra, AIR 1956 SC 217 that the presumption that a person acts honestly and legally applies as much in favour of police officers as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof.
State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 61 of 81
58. Applying the above principles of law to the facts of present case, it is evident that the amount of recovery is heavy (Rs.90,000/). It appears to be improbable that the police would have planted the same upon the accused, only to connect them to the offence or to workout the present case. More so, when the victim Jagdev Singh has correctly identified the accused Manoj as one of the person who had committed robbery upon him and also inflicted knife blows upon him, Vijay as the one who had shown him the revolver and hit him with the butt of the same and Islam as the person who cut the ropes and took away the bag containing the currency notes. There being no history of animosity between the victim and the accused Manoj there is no reason to disbelieve his testimonies. Further, because the incident is pertaining to the year 2004 whereas examination of the witnesses have taken place after about six years i.e. in the year 20102011, minor discrepancies with regard to the description of place of recovery, the number of the currency notes recovered, can be attributed to loss of memory and no benefit can be given to accused for the same. [Ref.: Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC:
AIR 1983 SC 7453 (1)].
59. Ld. Defence Counsel has also argued that apart from the fact that no judicial Test Identification Parade (TIP) of the currency notes/ case property has been got conducted. The victim Jagdev State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 62 of 81 Singh in his cross examination has admitted that the photocopies of the currency notes (Ex.PX) shown to him were not the same which had been stolen from him. In this regard, Addl. PP for the State, has pointed out that on the examinationinchief conducted on 15.3.2011, the victim Jagdev Singh has duly identified the photocopies of the currency notes (Ex.PX) shown to him as the one which were stolen from him but in his cross examination conducted on the same day he has turned hostile at on this aspect. Here, I may also observe that at the time of release of the currency notes on superdari, the Ld. MM vide his order on the application, which is part of the judicial record and admissible in evidence, has specifically observed that along with the currency notes, a paper slip showing the stamp of Libra Filling Station was also present. Further, it is evident from the recovery memos Ex.PW13/M; Ex.PW13/K and Ex.PW12/D that at the time of recovery of the currency notes the bundles were having a slip bearing the seal of Libra Filling Station. Further, it has also been specifically mentioned in the examinationinchief of the victim Jagdev Singh that the paper slips containing the stamps of the Libra Filling Station had been produced in the court and also the photographs of bundles of currency notes (Ex.PW1/PB, Ex.PW1/PC and Ex.PW1/PD) also showing the stamp of Libra Filling Station. [Ref.: Khujji Alias Surendera Tiwari Vs. State of Madhya Pradesh State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 63 of 81 reported in 1991 Crl.L.J. 2653(1)].
60. This being the background, it appears that this statement of the victim Jagdev Singh made in the crossexamination that the currency notes which were released to him on superdari were not the same which were stolen from him but it was those currency notes which were obtained by the accused after selling the car which car they had purchased from the stolen money, is not reliable. Even otherwise it is not the case of the prosecution that after the incident the accused had purchased a car from the currency notes which were stolen from the victim and the said notes recovered were those which were obtained was selling the said car.
Role Attributed to the accused:
61. The case of the prosecution is that it was the accused Vicky who was driving the motorcycle whereas the accused Manoj and Vijay were sitting on the motorcycle duly armed with a knife and katta and on 1.12.2004 when the victim Jagdev Singh was carrying cash of the Libra Filling Station for deposing the same in the UCO Bank, the said boys first tired to hit his scooter by their motorcycle and later on stopped his scooter near the road divider and robbed him on the point of knife and country made pistol and it was the accused who had actually looted the bag carrying cash by injuring the upon the victim with knife and later the booty was shared between the State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 64 of 81 various accused. It is alleged that all the accused have robbed the victim Jagdev Singh while Vijay, Manoj and Vicky were on the motorcycle and accused Islam and Ram Janam were also part of the conspiracy and it was Islam who had taken away the looted amount. In the court, the witness/ victim Jagdev Singh (PW1) has only identified the accused Vijay, Manoj and Islam as the persons who had committed the robbery and has denied having seen Vicky at the spot. The relevant testimony of PW1 Jagdev Singh, aged about 67 years is as under:
"On 1.12.2004 I was working as Cashier at Libra Filling Station, Fruit Mandi, Jahangirpuri. I was working there prior to the date of occurrence. I used to collect all the cashes from the petrol pump and deposited the same in the UCO Bank, Bak Complex, New Subzi Mandi. On that day at about 10.30 am I left the Petrol Pump with a sum of Rs.5,40,000/ for depositing the same in the UCO Bank. I was on my scooter number DL 4S 51879. I was also having payin slip booklet and some visiting cards with me. Money and the papers were kept in a green colour raxine bag and the bag was lying int he front bucket of the scooter tied with the sutli. One boy namely Hardeep who was also employee of the said Filling Station was behind me on another scooter for my safety. When I reached at the red light of 100 number stand. Some traffic was present there as there was red light. As the green light on we started and reached in the cut State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 65 of 81 of Indira Nagar, near PNB Bank, one motorcycle reached there and tried to hit me. I tried to save myself, but again they put their motorcycle in front of my scooter and stopped me. At that time three boys were riding on that motorcycle. I was stopped near the road divider. The boy, who was sitting on the last taken out a revolver and pointed towards me and said to give the bag. But I caught hold the bag by my left hand and from right hand caught hold the scooter. I refused to give the bag. That boy gave but blow of the revolver on my right hand, but I resist and did not give the bag, then the boy who was sitting in the middle of the motorcycle, also came there and showed me the knife and when I resist he gave a knife blow on my left thigh at two places. I again resist then the 3rd boy, who was driving the motorcycle, removed his motorcycle at a distance and came to me and used force on my person and looted the bag, which containing the cash, visiting cards and pay in slips. All the boys after looting the bag they ran away by that motorcycle towards red light side. The other my companion boy namely Hardeep Singh, who was coming on a scooter for my safety came to me, but I asked him not to see me and chase those three boys. I asked one public person and requested him to inform to the filling station about the occurrence and he made a call to the filling station by his mobile phone. Thereafter I was removed to the Sehgal Nursing Home for my treatment. Police met me in the hospital. I had narrated all the incident to them. They recorded State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 66 of 81 my statement. I cannot say if they obtained my signatures or not. I can identify the accused present today in the court today who was sitting on the last of the motorcycle and showed me revolver and threatened me to give the bag and also caused injuries on my right hand with the butt of the revolver. I am not aware about the name of the accused.
Court Question: The accused is asked to tell his name ?
Ans.: The accused told his name as Vijay Kumar.
At this stage, witness pointed out towards one another accused and saying that this boy had showed me the knife and stabbed my left leg twice and caused injuries. I do not know the name of this accused.
Court question: The accused is asked to tell his name ?
Ans.: He told his name as Manoj Kumar.
At this stage witness states that the third boy, who was driving the motorcycle and snatched the bag was of tall built boy and witness pointed out towards one another accused and saying that he is not confirmed but it may be the boy who had snatched the bag and driving the motorcycle.
Court question: The accused is asked to tell his name ?
Ans.: He told his name as Vicky. ....."
62. In his testimony when PW1 Jagdev Singh got confused about the identity of the accused persons, on the pointing out of State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 67 of 81 Addl. PP, he also identified the accused Islam. The relevant portion of testimony of PW1 Jagdev Singh is as under:
" At this stage, the witness is confused about the identity of the accused persons and learned APP wants to crossexamine the witness on the point of identity of accused persons. Heard. Allowed. "...... At this stage, learned APP pointed out towards Mohd. Islam and suggested that it is the same accused, who had snatched the bag by cutting the rope from the vehicle by a knife and also inflicted injuries, for which, witness states that it is correct that the accused Islam snatched the bag by cutting the rope by a knife but he did not inflicted injuries on my person by the knife......"
63. The witness further responded to the suggestions of the Addl. PP as under:
"........ It is wrong to suggest that accused Vikcy present in the court today was driving the motorcycle. (Vol. accused Manoj present in the court was driving the motorcycle). It is wrong to suggest that due to lapse of time of about 6 years, I am not able to explain the role of the accused Vicky properly. Voluntarily the witness has pointed out towards accused Islam, Manoj and Vijay and saying that these three boys were present at the spot and committed the robbery with him. It is wrong to suggest that I am deliberately not identifying the accused Vicky and not explaining proper role due to lapse of time. ..."
State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 68 of 81
64. It is evident from the above that in his examination, PW1 Jagdev Singh has denied that accused Vicky was driving the motorcycle and has thereafter stated that it was the accused Manoj who was driving the motorcycle but ultimately confirms to the court that it was the accused Islam, Vijay and Manoj who were present at the spot and committed the robbery.
65. Coming to the authenticity and credibility of the testimonies of victim Jagdev Singh (PW1) I may observe that he is 67 years old man and has been examined after six years of the incident indicating that at the time of incident he must be around 61 years of age. Jagdev Singh has very categorically told the Court that he was not known to any of the accused previously and had seen them at the time of incident for the first time and the accused on their part have not placed anything on record to prove that they were previously known to the victim or that the victim had any reason to falsely implicate the accused.
66. It is further evident that the victim Jagdev Singh has not been able to give the name of the accused Manoj, Vijay and Islam and has identified them only by pointing out which confirms that he did not know them previously and he is a truthful witness. Had he been tutored, he would definitely have identified Vicky as one of the assailants and also Islam as the person who used knife on him when so suggested by the Ld. Addl. PP, which he did not do. Rather, he State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 69 of 81 pointed out to the accused Manoj as the person who had stabbed him. He has very categorically stated that it was the accused Vijay who had shown him a revolver and when he tried to resist the accused Manoj had inflicted injures upon him with a knife. Jagdev Singh has further identified the accused Islam as the person who had cut the rope of the bag and looted the bag containing currency notes but has denied the suggestion of the prosecution that it was Islam who had given knife blow to him. In so far as the accused Vikas is concerned, initially the victim Jagdev Singh had suspected that perhaps he was the person who was driving the motorcycle as the said person was very tall but later he confirmed that it was not the accused Vicky. He has denied the suggestion of Addl. PP that Vikas was also involved in the incident.
67. The victim Jagdev Singh an old man aged about 67 years (at the time of his examination) conclusively identified all these boys i.e. Vijay, Manoj and Islam after about six years of the incident as the three boys who had come on the motorcycle and stopped his scooter and committed armed robbery with him. The incident took place in broad day light i.e. around 10:30 AM at a public place and the victim had offered stiff resistance to the assailants and hence the full possibility of having clearly seen the faces of the assailants at close angles. However, the entire incident having taken place suddenly and in quick succession, the possibility of the victim getting confused State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 70 of 81 with regard to the role of the accused i.e. as to who did what, cannot be ruled out and this being a minor contradiction the benefit of the same cannot be given to the accused. The Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1), the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses.
(a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(c) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(d) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 71 of 81 recorder.
(e) In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated lateron.
(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
68. This being the background, in so far as the accused Vicky is concerned, benefit of doubt is liable to be given to him, but in so far as the accused Vijay, Manoj and Islam are concerned, there is no reason to disbelieve the testimony of the victim PW1 Jagdev Singh State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 72 of 81 and therefore I hold the accused Vijay, Manoj and Islam guilty for the offence under Section 394 Indian Penal Code.
69. Further, the victim Jagdev Singh has also identified the accused Vijay Kumar as the person who was having a revolver in his hand and inflicted injuries upon him by the but of the revolver. He has also identified the accused Manoj Kumar as the person who was having a knife and who had given two knife blows on his thigh when he further tried to resist. Hence, under these circumstances, the accused Vijay Kumar and Manoj Kumar are also held guilty for the offence under Section 397 Indian Penal Code.
70. In so far as the accused Ram Janam Pandey is concerned, he has not been identified by the victim Jagdev Singh and the only allegations against him are that the currency notes stolen from the possession of victim Jagdev Singh on the date of incident which currency notes having the seal and stamp of Libra Filling Station were found in possession of the accused Ram Janam Pandey which possession he has not been able to explain in the court and therefore I hereby hold him guilty for the offence under Section 411 Cr.PC. Allegations of conspiracy :
71. The case of the prosecution is that all the accused namely Vijay Kumar, Manoj Kumar, Ram Janam Pandey, Islam and Vicky agreed to do an act of illegal act of robbery upon Jagdev Singh the State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 73 of 81 Cashier of Libra Filling Station.
72. Under Section 120A, IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is legal act by illegal means over act is necessary. Offence of criminal conspiracy is exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of intention, which is an offence. The question of consideration in a case is did all the accused had the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever, horrendous it may be, that offence is committed. Acts subsequent to the achieving of object of conspiracy may tent to prove that a particular accused was party to the conspiracy.
73. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. Conspiracy may, for example, be enrolled in chain A enrolling B, B enrolling C and so on and all will be the members of the single conspiracy if they so intend and agree, even though each member knows only the State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 74 of 81 person who enrolled him and the person whom he enrolls. Persons may be members of a single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same on an active role.
74. The Hon'ble Apex Court in (1996) 2 Crimes 64: 1996 Cr. L. J. 2448 (SC) observed as follows (at p.2453 of CrLJ): "
"To establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of lawful use being made of the goods or services in question may be inferred from the knowledge itself.......... Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use."
75. Applying the settled principles of law to the facts of the present case, it is evident that the prosecution has failed to place on record any material to show the prior meeting of mind or intention or agreement between the various accused i.e. Vijay Kumar, Manoj Kumar, Islam, Ram Janam Pandey and Vicky to do a particular thing in a particular manner. The prosecution has failed to prove when and State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 75 of 81 where this conspiracy, if any, was hatched and who was attributes what role with regard to its execution. Therefore, under these circumstances benefit of doubt is being to all the aforesaid accused who are acquitted of the charge under Section 120B Indian Penal Code.
Medical Evidence:
76. It is evident that in the incident the victim Jagdev Singh had also received injuries. PW2 Dr. Ruchi Malhotra has proved the MLC Ex.PW2/A showing that the victim Jagdev Singh was brought to the Sehgal Nursing Home on 1.12.2004 at about 11:20 AM with alleged history of assault by four persons while he was on his scooter at around 11 AM and was examined by Dr. Mukund Khetan and on local inquiry, following injuries were found:
1. Sharp cut wound on left thigh anterior aspect measuring about 10 x 4 x 4 cm with artery bleeding deep. No neurological defect.
2. Sharp cut wound over left thigh at anterior aspect near knee joint, measuring 8 x 4 x 4 cm, deep facia opened with arterial bleeding.
3. Abrasion over left shoulder.
4. Abrasion on right wrist lateral aspect.
77. The above injuries have been opined to be sharp inflicted wounds and suturing under general anesthesia. The medical evidence corroborates the oral testimony of the victim Jagdev Singh and State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 76 of 81 proves that the incident had taken place where four persons were involved and he has received injuries in the incident after which he was immediately taken to the Sehgal Nursing Home. FINAL CONCLUSION:
78. In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 77 of 81 conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
79. Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officers. It is evident that the in so far as the identity of the accused is concerned, the victim Jagdev Singh has correctly identified the accused Vijay, Manoj and Islam, however, he has not identified the accused Vikcy as one of the assailants. It stands established that on 1.12.2004 the victim Jagdev Singh (PW1) being the cashier of Libra Filling Station was going to deposit the cash amounting to Rs.5,40,000/ in the bank on his scooter and when he reached near cut of Indira Nagar, near PNB Bank, the accused Vijay, Manoj and Islam came on a motorcycle. It stands established that the accused Vijay was sitting in the last seat of the motorcycle and was having revolver in his hand which he shown to the victim Jagdev Singh and asked him to hand over the bag containing money but when Jagdev Singh resisted, the accused Vijay hit him with the butt of the revolver and in the meantime when victim Jagdev Singh further resisted the accused Manoj who was having a knife in his hand gave knife blows on the thigh of Jagdev State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 78 of 81 Singh and at the same time the accused Islam cut the rope of the bag and removed the bag containing the currency note bundles having the slip bearing the seal of Libra Filling Station from the scooter of Jagdev Singh which cash amount of Rs.5,40,000/ victim Jagdev Singh was going to deposit in the bank. It further stands established that thereafter all three accused i.e Vijay, Manoj and Islam ran away from the spot while the victim Jagdev Singh was removed to the nearby Sehgal Nursing Home by the public persons in an injured condition where he was treated. It further stands that Jagdev Singh had received four injures i.e. Sharp cut wound on left thigh anterior aspect measuring about 10 x 4 x 4 cm with artery bleeding deep; Sharp cut wound over left thigh at anterior aspect near knee joint, measuring 8 x 4 x 4 cm, deep facia opened with arterial bleeding; Abrasion over left shoulder and Abrasion on right wrist lateral aspect, thereby corroborating the oral testimony of the victim and establishing the incident. Further, it stands established that the accused Ram Janam Pandey, Vijay and Manoj got recovered the bundles of currency notes (totalling Rs.90,000/) having the slip bearing seal and stamp of Libra Filling Station.
80. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 79 of 81 which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. The prosecution has proved the identity of the accused Vijay, Manoj, Islam and Ram Janam Pandey, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
81. In view of the above discussions, the accused Vijay Kumar, Manoj Kumar and Islam are held guilty for the offence under Section 394 Indian Penal Code. Further, the accused Vijay Kumar and Manoj Kumar are held guilty for the offence under Section 394/397 IPC also. Further, the accused Ram Janam Pandey is held guilty for the offence under Section 411 IPC. However, the accused Vijay Kumar, Manoj Kumar, Islam and Ram Janam State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 80 of 81 Pandey are acquitted of the charges under Section 120B IPC.
82. In so far as the accused Vicky is concerned, he is hereby acquitted of the charges under Section 394 read with 120B and 397 read with 120B IPC. His surety be discharged as per rules.
83. The accused Vijay Kumar, Manoj Kumar, Ram Janam and Islam are directed to be taken into custody.
84. Case be listed for arguments on sentence on 26.4.2012.
Announced in the open court (Dr. KAMINI LAU)
Dated: 19.04.2012 ASJ (NW)II: ROHINI
State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 81 of 81
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 143/2011 Unique Case ID: 02401R0322872005 State Vs. (1) Vijay Kumar S/o Bhola Ram R/o N30/C46, H3 Block Jahangirpuri, Delhi.
(Convicted) (2) Manoj Kumar S/o Ram Babu R/o N30/D, H3 Block Jahangirpuri, Delhi.
(Convicted) (3) Ram Janam Pandey @ Janma S/o Angad Pandey R/o H. No. 719, Jeewan Park Samaipur Badli, Delhi.
(Convicted) (4) Islam S/o Masoom R/o Jhuggi No. H4, ND232 Jahangirpuri, Delhi.
(Convicted) (5) Vicky S/o Sant Ram R/o A178, DDA Flats, Jahangirpuri, Delhi.
(Acquitted)
State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 82 of 81
FIR No. : 526/2004
Under Section : 394/397/120B/411/34 IPC
25/27/54/59 Arms Act
Police Station : Adarsh Nagar
Date of Judgment: 19.04.2012
Arguments heard on: 26.4.2012
Date of sentence: 28.4.2012
APPEARANCE:
Present: Sh. Sukhbir Singh, Additional Public Prosecutor for the
State.
All the convicts namely Vijay Kumar, Manoj Kumar, Ram Janam and Islam in judicial custody with Sh. Naveen Gaur, Sh. Suresh Tomar and Sh. Mohd. Haroon Advocates. ORDER ON SENTENCE:
Vide a detailed judgment dated 19.4.2012 this Court has held the accused Vijay Kumar, Manoj Kumar and Islam guilty for the offence under Section 394 Indian Penal Code. Further, the accused Vijay Kumar and Manoj Kumar have also been held guilty for the offence under Section 397 Indian Penal Code. The accused Ram Janam Pandey has been held guilty for the offence under Section 411 Indian Penal Code. However, the accused Vijay State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 83 of 81 Kumar, Manoj Kumar, Islam and Ram Janam Pandey have been acquitted of the charges under Section 120B Indian Penal Code whereas the accused Vicky has been acquitted of the charges under Section 394 read with 120B and 397 Indian Penal Code.
The case of the prosecution is that on 1.12.2004 at about 10:30 PM, the complainant Jagdev Singh who was working as a cashier at Libra Filling Station was going to the bank on his scooter for depositing cash amount of Rs.5,40,000/ kept in a bag along with payin slip of the bank. He was also accompanied by another employee of the same filling station namely Hardeep Singh in a separate scooter but when they reached at 100 number red light, due to heavy traffic they separated from each other. When Jagdev Singh reached near the Punjab National Bank, GTK Road, one motorcycle on which three boys were riding, came near his scooter and they stopped his scooter near the road divider and out of those three boys, two boys came to Jagdev Singh and one of them showed a revolver to him while the other one who was having a knife in his hand cut the rope of the bag and removed the bag from the scooter of Jagdev Singh. When Jagdev Singh tried to resist, the said boy gave knife blows on the right wrist and left thigh of Jagdev Singh and thereafter all three boys ran away from the spot on their motorcycle. In the meanwhile, Hardeep Singh, the colleague of Jagdev Singh, also reached the spot thereafter and tried to chase the assailants but could State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 84 of 81 not succeed. Thereafter, the public persons took Jagdev Singh to nearby Sehgal Nursing Home in an injured condition where he was treated and the police also recorded his statement.
Thereafter pursuant to a secret information on 19.12.2004 the accused Vijay Kumar was apprehended along with a country made pistol when he disclosed his involvement in the present case and also got arrested the other coaccused namely Manoj Kumar, Ram Janam, Islam and Vicky. The accused Ram Janam got recovered one bundle of currency notes having a stamp of Libra Filling Station of the denomination of Rs.100/ totalling Rs.10,000/. Similarly the accused Manoj also got recovered four bundles of currency notes of denomination of Rs.100/ totalling Rs.40,000/ and the accused Vijay @ Pahari also got recovered six bundles of currency notes of 100 denomination which were looted by them and a total sum of Rs.90,000/ was recovered.
The victim Jagdev Singh had appeared before the Court and correctly identified the accused Vijay Kumar as the boy who was sitting last on the motorcycle and was carrying revolver and threatened him to handover the bag to him. He had also identified the accused Vijay Kumar as the boy who had shown to him the revolver and also caused injuries on his right hand by the but of the revolver. Further, Jagdev Singh had identified the accused Manoj State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 85 of 81 Kumar as the boy who showed him a knife and gave knife blow on his left thigh at two places. He specifically identified the accused Islam as the same person who had snatched the bag by cutting the rope of bag with the help of knife.
On the basis of the testimony of the various witnesses examined by the prosecution including the complainant/ injured Jagdev Singh and also on the basis of the medical evidence on record this Court while acquitting the accused Vicky of the charges under Sections 394 read with 120B and 397 Indian Penal Code; held the accused Vijay Kumar, Manoj Kumar and Islam guilty for the offence under Section 394 Indian Penal Code. Further, the accused Vijay Kumar and Manoj Kumar have also been held guilty for the offence under Section 397 Indian Penal Code. The accused Ram Janam Pandey has been held guilty for the offence under Section 411 Indian Penal Code only and the accused Vijay Kumar, Manoj Kumar, Islam and Ram Janam Pandey have all been acquitted of the charges under Section 120B Indian Penal Code.
Heard arguments on the point of sentence. The convict Vijay Kumar a young boy of 25 years is 9th class pass and was doing the work of manufacturing the Chargers. He has a family comprising of aged widow mother, one illiterate younger brother, one younger unmarried sister, wife two sons and one daughter (who are school State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 86 of 81 going). He has already remained in judicial custody for ten months and seventeen days. He is also involved in following three other cases:
1. FIR No. 817/04, under Section 392/34 IPC, PS Jahangir Puri.
2. FIR No. 1151/04, under Section 25 Arms Act, PS Saraswati Vihar (wherein he has already been convicted).
3. FIR No. 245/06, under Section 395/397 IPC and 25 Arms Act, PS Adarsh Nagar.
The convict Manoj Kumar aged about 30 years, is 8th class pass and was working in a private company. He has a family comprising of aged parents, one younger brother, one younger married sister, wife and one school going son. He is also involved in another case bearing FIR No. 817/04, under Section 392/34 IPC, PS Jahangir Puri. He has already remained in judicial custody for four months and twenty nine days.
The convict Ram Janam aged about 32 years is 3rd class pass and is a fruit seller by profession. He has a family comprising of two brothers, wife, one son and one daughter. He is also involved in another case bearing FIR No. 526/04, PS Adarsh Nagar, under Section 394/397/34 Indian Penal Code. He has already remained in judicial custody for four months and twenty four days.
The convict Islam aged 30 years is 8th class pass and was State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 87 of 81 doing the work of steel scrap. He has a family comprising of aged parents, two married brothers, one unmarried sister, wife, two sons and two daughters (all are school going). He has already remained in judicial custody for about thirty two days. He is also involved in following other cases:
1. FIR No. 567/01, under Section 395/397 IPC, PS Narela.
2. FIR No. 236/04, under Section 411/34 IPC, PS Jahangir Puri.
3. FIR No. 354/03, under Section 379/411 IPC, PS Adarsh Nagar.
4. FIR No. 507/02, under Section 394/34 IPC, PS Adarsh Nagar.
5. FIR No. 340/11, under Section 454/380/34 IPC, PS Narela.
6. FIR No. 561/11, under Section 458/380/34 IPC, PS Shahbad Dairy.
Ld. Counsels appearing on behalf of the convicts have vehemently argued that all the convicts are young boys. It is submitted that though the convicts are involved in other cases but except for the convict Vijay Kumar who has been held guilty by this Court in the connected case bearing FIR No.1151/04, Police Station Saraswati Vihar, under Section 25 of Arms Act; the other convicts namely Manoj Kumar, Ram Janam and Islam have not been held guilty in any other case so far. It is argued that all the convicts are helping hands of their respective families and any harsh view of this Court would be prejudicial not only to the convicts but also to their State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 88 of 81 family members. They request that a lenient view be taken against all the convicts.
On the other hand the Ld. Addl. PP for the State has prayed that a strict punishment be awarded to the convicts keeping in view their other involvements. He has argued that the convicts do not hesitate in using dangerous weapons upon innocent victims and by their acts adversely affect social order for which reason they do not deserve any leniency.
I have considered the rival contentions. In the recent past Delhi has experienced a spurt and rise in the incidents of snatching, robbery, dacoity, murder and other kinds of crime. In the year 2010 alone, a total number of 48,161 cases were registered out of which 567 cases were of looting; 1,596 cases were of chain snatching and 318 cases were of dacoity. The deteriorating law and order problem of the City is a matter of serious concern and immediate steps are required to be taken at all levels for ensuring security and safety of the citizens. Under these circumstances the courts are required to find answers to the new challenges facing the society and to mould the sentencing system to meet these challenges. The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should be conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 89 of 81 warranting public abhorrence of the rime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175).
In the present case the medical evidence on record shows that the victim Jagdev Singh had received four injuries i.e. sharp cut wound on left thigh anterior aspect measuring about 10 x 4 x 4 cm with artery bleeding deep; sharp cut wound over left thigh at anterior aspect near knee joint, measuring 8 x 4 x 4 cm, deep facia opened with arterial bleeding; Abrasion over left shoulder and Abrasion on right wrist lateral aspect which corroborates his oral version and proved the incident. I may also mention that on 19.4.2012 after the judgment was announced in the Court and the convict Islam was taken into custody, he tried to escape from the custody of the police staff by using force but could be apprehended with the help of public persons and security personnels posted at main Gate of the Court after an alarm was raised. This conduct of the convict Islam is reflective of the extent of his desperation and shows that he has scant respect for law.
Keeping in view the previous criminal records of the convicts, I hold that undue sympathy shown to the convict to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society. I, therefore, award the following sentence to the convict Vijay State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 90 of 81 Kumar:
1. For the offence under Sections 394 read with 397 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Seven (7) years and fine to the tune of Rs.10,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one month.
The punishment shall run concurrent to the punishment imposed upon him in FIR No.1151/04, under Section 25/54/59 of Arms Act, PS Saraswati Vihar.
Further, I award the following sentence to the convict Manoj Kumar:
1. For the offence under Sections 394 read with 397 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Seven (7) years and fine to the tune of Rs.10,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one month.
In so far as the convict Islam is concerned, he is a desperate criminal and involved in as many as six cases. He is sentenced to Rigorous Imprisonment for a period of five (5) years State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 91 of 81 and fine to the tune of Rs.10,000/ for the offence under Section 394 Indian Penal Code the convict is sentenced to In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one month.
Further, in so far as the convict Ram Janam Pandey is concerned, his case is different from the other accused. He is not a previous convict and has involvement in only one other case. He has not been identified in the Court as one the assailants and the amount of alleged recovery is only Rs.10,000/ for which he has been held guilty of the offence under Section 411 Indian Penal Code only for the reason that he was unable to explain the possession of the said notes bearing slip bearing the stamp of Libra Filling Station. He is hereby sentenced to Rigorous Imprisonment for a period of four months and twenty four days (i.e. period already undergone) and fine to the tune of Rs.2,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 15 days.
Benefit of Section 428 Cr.P.C. shall be given to all the convicts for the period already undergone by them during the trial in the present case as per rules.
The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 92 of 81 case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order of sentence be given to all the convicts free of costs and another copy be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 28.04.2012 ASJII(NW)/ ROHINI
State Vs. Vijay Kumar etc., FIR No. 526/04, PS Adarsh Nagar Page 93 of 81