Delhi District Court
State vs . 1. Ravi Kant on 11 December, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST) : ROHINI COURTS: DELHI
Sessions Case No. 16/2013
Unique Case ID: 02404R0368102012
State Vs. 1. Ravi Kant
S/o late Sh. Komal Singh
R/o B207, Moji Wala Bagh,
Azadpur, Delhi.
(Acquitted)
2. Deep Narayan
S/o Chaman Prakash
R/o B228, Lal Bagh, Azadpur, Delhi.
(Acquitted)
FIR No. : 242/2012
Police Station : Adarsh Nagar
Under Section : 392/397/411/34 Indian Penal Code
Date of committal to Sessions Court : 29.01.2013
Date on which orders were reserved : 09.12.2013
Date on which judgment pronounced : 11.12.2013
JUDGMENT
BRIEF FACTS:
(1) The case of the prosecution is that on 28.9.2012 at about 10:00 PM at Service Lane, opposite Hans Cinema, GTK Road, Lal Bagh, the accused Ravi Kant and Deep Narayan in furtherance of their common intention State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 1 of 34 committed robbery of Rs.100/ and mobile phone make Micromax with Mobile No. 9654759731 from the possession of Mohd. Akhtar, one mobile phone make Le Phone with Mobile No. 8447426189 from the possession of Mohd. Hazrat and mobile phone make Karbon with Mobile No. 9953575599 from the possession of Mohd. Mahram. It is alleged that while committing the said robbery, the accused Deep Narayan used deadly weapon i.e knife which he put on the neck of Mohd. Akhtar. It is further alleged that the robbed mobile make Micromax belonging to Mohd. Akhtar and another mobile make Le Phone belonging to Hazrat and mobile make Karbon belonging to Mohd. Mahram were recovered from the possession of accused Ravi Kant.
CASE OF PROSECUTION IN BRIEF:
(2) The case of the prosecution in brief is that on 28.9.2012 on receipt of DD No. 34A, SI Rakesh Kumar along with Ct. Parvinder reached at the spot i.e. Service Road, opposite Hans Cinema, Lal Bagh, Azadpur where Ct.
Rahul, Ct. Kamlesh and Ct. Krishan met him and they produced two persons namely Deep Narayan @ Sanjay @ Sanju Baba and Ravi Kant before him along with recovered articles. The victims Mohd. Akhtar, Mohd. Hazrat and Mohd. Mehram were also present there and Ct. Krishan informed him that the above said two apprehended persons committed robbery with victims on the pointing of knife. SI Rakesh Kumar recorded the statement of Mohd. Akhtar who alleged that he along with Mohd. Hazrat and Mohd. Mehram were State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 2 of 34 robbed of their belongings i.e. mobile phones etc., by the accused persons on the point of knife. SI Rakesh Kumar prepared a rukka on the basis of statement of Mohd. Akhtar, made his endorsement on the same and got the FIR registered through Ct. Parvinder. He thereafter prepared the site plan of the spot, took the recovered articles into possession and prepared the seizure memos after which the accused persons were arrested. After completing the investigations, the charge sheet was filed in the court. CHARGE:
(3) Charge under Section 392/411/34 Indian Penal Code was settled against the accused Ravi Kant and charge under Section 392/397/34 Indian Penal Code was settled against the accused Deep Narayan. Further, charge under Section 25/54/59 Arms Act was also settled against the accused Deep Narayan. Both the accused pleaded not guilty and claimed trial.
EVIDENCE:
(4) In order to discharge the onus upon it, the prosecution has examined as many as Ten Witnesses:
Public Witnesses:
(5) PW4 Deepak is the Nodal Officer, Vodafone Mobile Services Ltd., C45 Okhla Industrial Area, Phase II, New Delhi who has brought the State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 3 of 34 summoned record pertaining to number 9654759731. As per the customer application form, copy of which is Ex.PW4/A the said number has been alloted to Maha Misaruddin S/o Safid Sabaji, R/o B5181, Lal Bagh Azadpur, Delhi. The copy of the election I card which is attached as identity proof is Ex.PW4/B, the call details record pertaining to the period 15.9.2012 to 29.9.2012 is Ex.PW4/C (running into two pages) and certificate U/S 65B of Indian Evidence Act is Ex. PW4/D. The witness has also brought the summoned record pertaining to number 9953575599. As per the customer application form, copy of which is Ex.PW4/E, the said number has been alloted to Mohd. Chhedi, S/o Mohd. Rasid, R/o A99, Lal Bagh, Delhi. The copy of the election I card which is attached as identity proof is Ex.PW4/F. The call details record pertaining to the period 15.9.2012 to 29.9.2012 are Ex.PW4/G (running into one page on both sides) and the certificate U/S 65 B of Indian Evidence Act is Ex.PW4/H. The witness has brought the summoned record pertaining to number 8447426189 and as per the customer application form, copy of which is Ex.PW4/I, the said number has been alloted to Mohd. Chhedi, S/o Mohd. Rasid, R/o 164, Lal Bagh, Delhi. The copy of the election I card which is attached as identity proof is Ex.PW4/J. The call details record pertaining to the period 15.9.2012 to 29.9.2012 are Ex.PW4/K (running into one page on both sides) and the Certificate U/S 65 B of Indian Evidence Act is Ex.PW4/L and the the cell ID Chart is Ex.PW4/M (running into 108 pages).
State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 4 of 34 (6) PW5 Akhtar Ali has deposed that five to six months before i.e. the day of his deposition in the court, he was residing at Delhi at C14, Lal Bagh, Azadpur Delhi on rent basis and was working as helper in a building material supply shop. According to him, Mohd. Hazrat and Mohd. Mehram are his cousin brothers. Has has deposed that on 28.09.2012 at about 10 PM he was going to Roshanara road along with his cousin Mohd. Hazrat and Mohd. Mehram for their work at their work place and when they reached at the Main Road near Hans Cinema and were waiting for the bus, two boys came from the Lal Bagh area. According to the witness, the assailant who was taller put knife on his neck and asked him to hand over them what they had or otherwise he would kill them after which he (assailant) took out his currency notes of one hundred and his mobile phone from the pocket of his shirt and also took out the mobile phone of Mohd. Hazrat and them the mobile phone of Mohd. Mehram. After committing robbery they ran away towards the liquor shop area. The witness has deposed that his mobile phone was of MICROMAX of green color and bearing the SIM but he does not remember his mobile number though he had noted down the said number. He has further deposed that his robbed amount was Rs.100/ i.e. one currency note of Rs 50/, one currency note in denomination of Rs 20/ and three currency notes in denomination of Rs 10/. The witness has deposed that thereafter they proceeded towards their work and at about 1:00 AM he made a call on his mobile phone number by taking the mobile phone of his co worker and the person on the line called him at the Petrol Pump Lal Bagh but State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 5 of 34 due to fear he did not go there. Thereafter the said person on the other side of the line got furious and told him that he was a police man. The witness has stated that he was busy in his work when the said person again called him on the mobile phone of his coworker and asked him to come at the Police Station at about 8:30 AM on the next morning but he did not go to the Police Station on which the police reached at his house and took him to the police station and inquired about the facts and recorded his statement vide Ex.PW5/A. He has stated that thereafter he saw the assailants in the police station and identified them. According to the witness, he has seen the knife and the robbed mobile phones and his robbed amount of Rs 100/ at the police station. He has identified both the accused in the court by pointing out towards the accused Deep Narain and Ravi Kant as the assailants who committed the above said incident. Witness has further pointed out that the accused Deep Narain is the person who was holding the knife and put the same on his neck and threatened him and committed robbery on the point of knife. Witness has identified the case property i.e. the knife- dagger as used by the accused Deep Narain at the time of incident and same is Ex.P1, the mobile phone of MICROMAX along with SIM and battery collectively Ex.P2, the mobile phone of KARBONN along with SIM, memory card and battery is collectively Ex.P3, mobile phone of make of Le Phone along with two SIMs, battery and memory card is collectively Ex.P4 and currency notes collectively Ex.P5.
State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 6 of 34 (7) In leading questions put to PW5 Akhtar by the Ld. APP, the witness has deposed that his mobile phone number was 9654759731 and he had given the mobile phone number of Hazrat to the police as 8447426189.
He has stated that the mobile phone number of Mohd. Mehram was 9953575599 and when accused i.e. one of the assailants put the knife on his neck he told that "tum logo ke pass jo kuch hai, nikal kar hame de do warna teri gardan isi chaku se kaat dunga". According to him, other assailant took out Rs100/ and his mobile phone of MICROMAX from the pocket of his shirt while the other assailant also took out the mobile phones of Hazrat and Mehram. He has denied that after the incident of robbery they raised an alarm as "chor chor" or that the three police officials were coming from the area of Lal Bagh and they apprehended the above said two assailants and thereafter they came to know the name of the assailant who put the knife on his neck as Deep Narain @ Sanju @ Sanjay @ Baba and the name of the other person as Ravi Kant. He has further denied that the knife /dagger was recovered from the possession of the Deep Narain in his right hand in a cover or that their robbed mobile phones and his Rs 100/ were recovered from the possession of accused Ravi Kant. He has further denied that SI Rakesh Kumar reached at the spot as the police staff called him and the recovered articles were produced before SI Rakesh Kumar or that the police recorded his statement at the spot at about 1:10 AM on 29.09.2012. He has also denied that the sketch of the recovered knife was prepared by SI Rakesh Kumar at the spot in his presence or that he put his thumb impressions on Ex.PW5/B or that SI State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 7 of 34 Rakesh kept the knife recovered in a cloth pullanda and sealed the same with the seal of RKD at the spot which after he put his thumb impressions at point A on Ex.PW5/B. He has also denied that he put his thumb impressions at point A on Ex.PW5/C or that the police sealed the recovered mobiles of MICROMAX, KARBONN and lephone in a cloth pullanda with the seal of RKD and also sealed the Rs 100/ in an envelope with the seal of RKD and seized the same vide seizure memo Ex.PW5/C then he put his thumb impressions at point A. He has denied that the accused Deep Narain was arrested by the police on 29.09.2012 at about 2:05 AM (midnight) and thereafter his personal search was taken or that the accused Ravi Kant was arrested on 29.09.2012 at about 2:20 AM (midnight) and his personal search was taken. The witness has voluntarily explained that the accused persons were not arrested in his presence.
(8) In crossexamination, he has deposed that he never went to the police station to make any complaint nor he made any call to the PCR and has voluntarily added that it was the police who contacted him. According to him, on 29.09.2012 the police officials came to his house at 11 AM to take him to the police station along with his brother Hazrat and Mehram and they remained in the police station from 11 AM to 5 PM and at 6 PM they were again called to the police station and remained there till 1 AM. He admits that no recoveries were made in his presence and he was only informed and asked to identify his articles and has voluntarily explained that when he went to the police station, he was asked if the mobile phone and currency notes belonged State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 8 of 34 to him "mujhse poocha yeh saman tumahara hai". According to him, his statement was recorded at about 10:00 PM to 1:00 AM in the intervening night of 29/30.09.2012. He has deposed that he is totally illiterate and when he was putting his thumb impressions on various papers, he was told about the contents of some of the papers but not of all "kuch ka bataya tha, kuch ka nahi bataya tha". According to him, he was the first person to put the thumb impressions on the papers and has voluntarily explained that he had not seen any other person putting signatures or thumb impressions on the same prior to him. He has deposed that the papers on which he had put his thumb impressions were written in his presence. He has denied that he knew Deep Narain prior to this incident or that he knew that Deep Narain was residing in the gali adjoining the house where he was residing at Lal Bagh and prior to this incident there was a verbal arguments i.e. kahasuni between them or that even outside the court, he was told by the police officers what to say. On court question, he has explained that whatever he has told the court is what he had told the police officers in the police station.
(9) He has admitted that the spot of the incident is thickly populated and lot of people visit the area and at the time of the incident also a large number of vehicles were passing through the area but there was no body on foot. He has deposed that the petrol pump was hardly about five minutes walking across the road and the incident took place just near Hans Cinema but there were no rickshaw walas or rehri walas standing near the Hans Cinema at that time. He has deposed that after the incident he went for his State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 9 of 34 duty and remained there from 11 PM to 9 AM and reached his house at 10 AM. According to him, at night when the police officer had picked up his phone, he only informed him about the address where he was staying but not the details of his duty. He has denied that he is identifying both the accused at the instance and directions of the police or that he deliberately withholding the name, address and details of the land lord where he was staying at Lal Bagh or that no incident as mentioned by him in his examination in chief took place or that he had connived with the local police to implicate the accused falsely in the present case.
(10) PW6 Mohd. Mohram has deposed that in the month of October, 2012 he had gone away to their village and residing there thereafter but before that he was residing at Delhi at Lal Bagh, Azadpur, Delhi on rent basis and was working as helper in a building material supply shop. According to him, Mohd. Hazrat is his real brother and Mohd. Akhtar is his cousin brother. He has deposed that he is illiterate and cannot read or write. According to him, on 28.09.2012 at about 10 PM he was going to Roshanara Road along with his brother Mohd. Hazrat and his cousin Mohd. Akhtar for their work at their work place when they reached at the main road near Hans cinema and they were waiting for the tempo vehicle, meanwhile two boys came from the Lal Bagh area. The witness has deposed that the assailant who was taller put knife on the stomach of Mohd. Akhtar and asked him to hand over them whatever he had otherwise he would kill them and thereafter he took out a Rs.one hundred currency note and the mobile phone of make MICROMAX State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 10 of 34 from the pocket of shirt of Mohd. Akhtar and also took out the mobile phone of white color Mohd. Hazrat and also took out his mobile phone of make KARBONN and after committing robbery with them they ran away towards the other side of the road. According to him, his mobile phone was of KARBONN of red and black color and bearing the SIM but he does not remember his mobile number. The witness has deposed that in the meanwhile one person came there and told them that the mobile phone could be recovered at the residence of the assailants and informed the address to them and thereafter they all went to the house of assailants at Lal Bagh and the parents of the assailants told them that their mobile phone will be handed over to them the next morning and thereafter they went for their work. According to the witness, at night Akhtar made a call on his mobile number but the caller was the police official who was talking from PS Adarsh Nagar. He has deposed he called them at the police station at the night time but they did not go there and thereafter at the morning they went to their house at Lal Bagh and the police again called them and met them on the road near their house and he also ask them to make the complaint at police station and thereafter the mobile will be handed over to them and hence they all went to the police station. According to the witness, the police made inquiries from them in the police station and recorded their statements and he also found their mobile phones and the knife in the police station and he identified his mobile phone and the knife and also saw the assailants in the police station at the evening time and identified them. The witness pointed out towards State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 11 of 34 accused Ravi Kant and Deep Narain and identified them as the assailants. Witness further states that Deep Narain was holding the knife at the time of the incident. He has also identified the case property in the court. (11) In leading questions put to the witness by Ld. Addl. PP after taking permission from the court, the witness has denied that the assailants put the knife on the neck of the Akhtar and voluntarily added that the assailants put the knife on the stomach of Akhtar or that the assailants was saying that "jo kuch hai, nikal kar hame de do nahi to iski gardan kat dunga"and has further voluntarily explained that the assailants were saying that "jo kuch hai nikal kar hame do no nahi to chaku pait mein ghuser dunga". He has admitted that the mobile phone number of Akhtar was 9654759731 and he has stated the mobile phone number of Hazrat to the police as 8447426189. He further admitted that he has stated that his mobile phone number was 9953575599. He has denied that after the incident of robbery they raised alarm as "chor chor" or that the three police officials were coming from the area of Lal Bagh and they apprehended the above said two assailants and thereafter they came to know the name of the assailant who put the knife on the neck of Akhtar as Deep Narain @ Sanju @ Sanjay @ Baba and the name of the other person as Ravi Kant. He further denied that the knife dagger was recovered from the possession of the Deep Narain in his right hand in a cover or that their robbed mobile phones and Rs.100/ of Akhtar were recovered from the State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 12 of 34 possession of accused Ravi Kant or that SI Rakesh Kumar reached at the spot as the police staff called him and the recovered articles were produced before SI Rakesh Kumar. The witness has further denied that police recorded his statement at the spot at about 1:10 AM on 29.09.2012 or that sketch of the recovered knife was prepared by SI Rakesh Kumar at the spot in his presence. He has admitted that he put his thumb impressions on Ex.PW5/B at point B. He has denied that SI Rakesh kept the knife recovered in a cloth pullanda and sealed the same with the seal of RKD at the spot and thereafter he put his thumb impressions at point B on Ex.PW5/B. He has admitted that he put his thumb impressions at point B on Ex.PW5/C. He has denied that the police sealed the recovered mobiles of MICROMAX, KARBONN and lephone in a cloth pullanda with the seal of RKD and also sealed the Rs 100/ in an envelope with the seal of RKD and seized the same vide seizure memo Ex.PW5/C then he put his thumb impressions at point B. He has further denied that accused Deep Narain was arrested by the police on 29.09.2012 at about 2:05 AM (midnight) and thereafter his personal search was taken or that the accused Ravi Kant was arrested on 29.09.2012 at about 2:20 AM (midnight) and his personal search was taken. The witness has voluntarily explained that the accused persons were not arrested in his presence.
(12) In his crossexamination he has deposed that after this incident he never went to the police station to make any complaint nor he made any call State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 13 of 34 to the PCR and has voluntarily explained that it was the police who contacted him. According to the witness on 29.09.2012 the police official came to his home at 10:30 AM to take him to the police station along with his brother Hazrat and Akhtar were also taken to the police station and they remained there till about 12 noon and at 6:30 PM they were again called to the Police Station and remained there till 12:301:00 AM. The witness has deposed that the person from whose mobile phone Akhtar made a call on his mobile phone is Anwar but he is unable tell about the name of the father and his address, or can tell his mobile phone number. He has admitted that no recoveries were made in his presence and he was only informed and asked to identify his articles and has voluntarily explained that when he went to the police station, he was asked if the mobile phone belongs to him "mujhse poocha yeh saman tumahara hai". He has deposed that his statement was never recorded by the police. He has further deposed that he is totally illiterate. According to him, his thumb impressions were obtained on his statement. He has deposed that except his statement, he did not put his thumb impressions on any other document. He has deposed that he was the first person to put the thumb impressions on the papers and has voluntarily explained that he had not seen any other person putting signatures or thumb impressions on the same prior to him. He has denied that the suggestion that he knew Deep Narain prior to this incident or that he knew that Deep Narain was residing in the gali adjoining the house where he was residing at Lal Bagh and prior to this incident there was a kaha suni between them or that even outside the court, he State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 14 of 34 was told by the police officers what to say. He has admitted that the spot of the incident is thickly populated and large number of persons visit the area. According to him, at the time of the incident only two passerby and some vehicles passed through the area. He has further deposed that the liquor shop is situated about 100 meters from the spot and same was opened at that time. He does not know the number of persons present at the liquor shop and has voluntarily explained that he had not seen any person there. He has admitted that there are rehries near the liquor shops which sales cold drink, soda etc. He has deposed that two police personals were present at the Hans Cinema when this incident took place. He has admitted that the petrol pump is situated across the road but they did not went there. He has deposed that he did not notice any rickshaw walas or rehri walas standing near the Hans Cinema at that time. He has deposed that after the incident he went for his duty and remained there from 11 PM to 8:30 AM and reached his house at 10 AM. He does not remember his mobile phone number. He has denied that he was identifying both the accused at the instance and directions of his brother Akhtar and also of the police or that he is deliberately withholding the name, address and details of the land lord where he was staying at Lal Bagh or that no incident as mentioned by him in his examination in chief took place or that they had connived with the local police to implicate the accused falsely in the present case.
State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 15 of 34 Police / Official Witnesses:
(13) PW1 HC Suresh Chand has tendered his examinationinchief by way of affidavit Ex. PW1/A wherein he has relied upon the copy of FIR Ex.PW1/A and endorsement on rukka Ex.PW1/B. (14) PW2 HC Rakesh has tendered his examinationinchief by way of affidavit Ex.PW2/1 wherein he has relied upon documents i.e. Entry in Register No. 19 vide S.No. 4086/12, copy of which is Ex. PW2/A (four pages).
(15) PW3 HC Ved Pal has tendered his examinationinchief by way of affidavit Ex.PW3/1 wherein he has relied upon document i.e. DD No. 34A Ex.PW3/A. (16) PW7 Ct. Parveder Kumar has deposed that on 28.09.2012, he was posted at police station Adarsh Nagar and in the intervening night of 28/29.09.2012, he was on emergency duty from 8PM to 8AM. He has deposed that at about 10:25 PM after receiving the DD No. 34A, he along with SI Rakesh Kumar reached at service road near Petrol pump Azadpur village, Delhi where Ct. Rahul, Ct. Kamlesh and Ct. Krishan met them.
According to him, they produced two persons namely Deep Narain @ Sanjay @ Sanju Baba and Ravi Kant before them. He has deposed that Mohd. Akhtar was also present there with his two cousins namely Mohd. Hazrat and Mohd. Mehram. According to him, Mohd. Akhtar alleged that the above said two apprehended persons Deep Narain and Ravi Kant committed robbery State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 16 of 34 with him and his cousins on the pointing out of knife. The witness has deposed that Ct. Krishan produced three mobile phones and Rs 100/ recovered from the possession of accused Ravi Kant. According to the witness, the mobile phone and the currency notes were identified by Mohd. Akhtar and his cousins and thereafter SI Rakesh sealed the mobile phone in a cloth pullanda with the seal of RKD and also sealed the Rs 100/ (one currency note of Rs 50/, one currency note of Rs 20/ and three currency notes of Rs 10/) in a envelope with the seal of RKD and seized the same vide already Ex.PW5/C. The witness has deposed that Ct. Kamlesh also produced one knife in a cover allegedly recovered from Deep Narain and thereafter SI Rakesh prepared the sketch of the knife after taking out from the cover which is Ex.PW7/A and took measurements of the same and mentioned the same in the sketch. The witness has deposed that Akhtar identified the knife which was kept on his neck by the accused Deep Narain and thereafter SI Rakesh put the knife in a cover and prepared the cloth pullanda of the same and sealed the same with the seal of RKD and seized the same vide Ex.PW5/B. The witness has deposed that thereafter SI Rakesh recorded the statement of Mohd. Akhtar and prepared the rukka and handed over the same to Ct. Parvender and Ct. Parvender then went to the police station for registration of the FIR with rukka. The witness has deposed that SI Rakesh interrogated accused Ravi Kant and Deep Narain. He thereafter arrested accused Ravi Kant vide memo Ex.PW7/B, took his personal search vide memo Ex.PW7/C and his disclosure statement vide Ex.PW7/D. According to him, the accused State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 17 of 34 Deep Narain was arrested vide memo Ex.PW7/E his personal search was taken vide memo Ex.PW7/F and his disclosure statement was recorded vide memo Ex.PW7/G. Witness has identified the accused persons and also the case property.
(17) In his crossexamination, he has deposed that they departed from the police station in a private motorcycle of the investigating officer but he could not give the details of the same. He has deposed that when they reached the spot, there were one or two public persons there but they got them removed from the spot. He did not recollect after how much time of preparation of pullandas, he went to the police station for registration of the case. He has deposed that in his presence IO did not join any public witness at the time of preparation of the pullandas despite presence of public persons in the petrol pump. He has deposed that there was an M2K building and one Lal Bagh village adjoining the petrol pump and a road in front of the petrol pump with metro work going on there and a little ahead of that was Hans Cinema. He has admitted that he had gone to the spot along with the investigating officer on receipt of DD No. 34A. He has denied that all documentation were done while sitting in the police station or that he had signed the same on the asking of the senior officers. He has denied that the accused were not handed over by Ct. Rahul, Ct. Kamlesh and Ct. Krishan to the IO (SI Rakesh) in his presence. He has further denied that the accused were already present in the police station and had been illegal detained or that the above incident has been concocted by planting the victims, complainant and the weapon of State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 18 of 34 offence i.e. knife/dagger and currency notes.
(18) PW8 Ct. Krishan Kumar has deposed that on 28.09.2012, he was posted at police station Adarsh Nagar and in the intervening night of 28/29.09.2012 at about 10.00 PM, he alongwith Ct. Rahul and Ct. Kamlesh were on patrolling duty at Lal Bagh Petrol Pump. According to the witness they heard the noise ChorChor from Hans Cinema side and they saw that two persons were coming while running from the side of Hans Cinema and on seeing them in uniform they turned to the other side. He has deposed that they apprehended the above said two persons and they disclosed their names as Deep Narayan @ Sanjay @ Sanju Baba and Ravi Kant. According to him one knife with cover was recovered from the right hand of Deep Narayan and three mobile phones and Rs.100/ were found in the right hand of Ravikant. He has deposed that after ten minutes Mohd. Akhtar, Mohd. Mehram and Mohd. Hazrat also came there and they alleged that the above said two persons Ravi Kant and Deep Narayan committed robbery with them on the point of knife. He has deposed that Ct. Krishan made call to the police station and SI Rakesh with Ct. Parvinder came from the police station at the spot. The witness has deposed that the IO SI Rakesh seized all the recovered articles and also arrested accused persons, conducted their personal search and recorded their disclosure statements. He has identified the accused as well as the case property.
(19) In his crossexamination, he has deposed that when he left the police station in the evening, he made his departure vide DD No. 60B. He State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 19 of 34 has deposed that at the time, when he saw the boys running they were all at the petrol pump, Lal Bagh. According to him it was around 10 PM by that time and at that time the petrol pump was open. He has admitted that there were large number of vehicles passing through the road and there were large number of persons passing through the area. They did not see other people running after the accused when they heard the voices of chor chor and saw the accused running. He has admitted that the employees of the petrol pump were still there as the petrol pump remains open till 11 PM but they did not join the investigations. He has deposed that no memo regarding the handing over the seal was prepared by the IO in his presence. According to him, the place from where the accused persons were apprehended is about 100 meters from Hans Cinema. The witness has deposed that after the arrest of the accused persons, the information of arrest of accused Deep Narain was given to his father and information of accused Ravi Kant was given to his mother at the spot itself. Witness has denied that he along with Ct. Rahul and Ct. Krishan did not apprehended the accused persons or that all documentations were done while sitting in the police station or that he has signed the same on the asking of the senior officers or that the accused were already present in the police station and had been illegal detained or that the above incident has been concocted by planting the victims, complainant and the weapon of offence i.e. knife/dagger and currency notes.
(20) PW9 Ct. Kamlesh Ram has deposed that in the intervening night of 28/29.09.2012 he was posted at police station Adarsh Nagar as constable State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 20 of 34 and was on beat duty from 9 PM onwards and on that day at about 9:00 PM he left for patrolling in the area along with Ct. Rahul and Ct. Krishan. The witness has deposed that they were on foot patrolling and when they reached near petrol pump, Lal Bagh, Azadpur, Delhi, near Hans Cinema when they heard the voices of chor chor from said directions and saw towards that direction and saw two boys were running from that directions and on seeing them they started to turn away. The witness has deposed on this, he along with Ct. Rahul and Ct. Krishan apprehended said two boys and on interrogation they came to know their names as Deep Narain @ Sanjay @ Sanjay Baba and Ravi Kant and Ct.Rahul had apprehended Deep Narain and at that time he was holding a knife in his right hand and Ct. Krishan had apprehended Ravi Kant who was holding currency notes in the right hand along with the mobile phones totaling Rs 100/ i.e. one currency note of Rs 50/, one of currency note of Rs 20/ and three currency notes of Rs 10/. The witness has deposed that Ct. Krishan in the meanwhile send information in the police station and after some time SI Rakesh came to the spot along with Ct. Parvender and the said boys along with mobile, knife and currency notes were handed over to him. According to the witness, SI Rakesh made inquiries from these boys and thereafter searched them and from the Jamatalashi of accused Ravi Kant a brown colored purse Rs 35/ were recovered and from the personal search of accused Deep Narain Rs 50/ were recovered and sketch of the knife was then prepared vide Ex.PW7/A after which the knife was taken into possession vide seizure memo Ex.PW5/B. State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 21 of 34 The witness has deposed that thereafter all the recovered articles were taken into possession. The witness has deposed that while the said proceedings were going on the complainants Akhtar, Hazrat and Mehram also reached the spot and informed the boys whom they apprehended i.e. Ravi Kant and Deep Narain are the same persons who had committed the robbery on them. He has deposed that Akhtar identified the knife as the one which the accused Deep Narain had showed to Akhtar and Mehram and Hazrat also identified the currency notes totaling 100 as the one which Ravi Kant had robbed from Mehram. SI Rakesh recorded the statements of Akhtar, Hazrat and Mehram and converted the statement of Akhtar into tehrir by making endorsement on the same and handed over the same to Ct. Parvender for taking the same to the police station for getting the FIR recorded. According to the witness, SI Rakesh thereafter arrested the accused persons. He has identified the accused persons and also the articles alleged seized in his presence. (21) In his crossexamination the witness has deposed that he along with Ct. Rahul made their departure entry vide DD No. 33A and at the time, when he saw the boys running they were all at the petrol pump. He has admitted that at that time there were large number of vehicles passing through the road and there were large number of persons passing through the area. According to him they did not see other persons running after the accused when they heard the voices of chor chor and saw the accused running. He has admitted that the employees of the petrol pump were still there as the petrol pump remains open till 11 PM but they did not join the investigations. The State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 22 of 34 witness has deposed that the memo regarding the handing over the seal was prepared by the IO but this court has observed that No such memo is present on the judicial record. According to the witness, the place from where the accused persons were apprehended is about 3040 steps to the south from Hans Cinema. He is unable to tell as to how much time Ct. Parvender took to get the FIR registered. He has deposed that his statement was recorded at the spot but he cannot tell the time. He has denied that he along with Ct. Rahul and Ct. Krishan did not apprehend the accused persons or that all documentations were done while sitting in the police station or that he has signed the same on the asking of the senior officers. He has denied that the accused were already present in the police station and had been illegal detained or that the above incident has been concocted by planting the victims, complainant and the weapon of offence i.e. knife/dagger and currency notes.
(22) PW10 SI Rakesh Kumar has deposed that on 28.9.2012 he was on emergency duty from 8.00 pm to 8.00 am and at about 10.24 pm he received DD No. 34 A and thereafter he alongwith Ct. Parvinder reached at service road, Opposite Hans Cinema, Lal Bagh, Azadpur where Ct. Rahul, Ct. Kamlesh and Ct. Krishan met him. They produced two persons namely Deep Narayan @ Sanjay @ Sanju Baba and Ravi Kant before him. According to the witness, Md. Akhtar, Md. Hazrat and Md. Mehram were also present there and Ct. Krishan informed him that the above said two apprehended persons committed robbery with Md. Akhtar and his cousins Hazrat and State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 23 of 34 Mehram on the pointing of knife. The witness has deposed that Ct. Krishan produced three mobile phones and Rs. 100/ before him and he informed him that the said Rs. 100/ and the mobile phones were recovered from the possession of accused Ravikant. The witness has deposed that Ct. Kamlesh also produced one knife with cover allegedly recovered from the possession of Deep Narayan @ Sanjay @ Sanju Baba. According to the witness, he made inquiries from Md. Akhtar and recorded his statement vide Ex.PW5/A. The witness has deposed that thereafter he sealed and seized all the recovered articles produced before him by Ct. Krishan. The witness has further deposed that he prepared the sketch of the knife vide Ex.PW7/A and seized the same vide seizure memo Ex.PW5/B He made endorsement on the statement of Md. Akhtar vide Ex.PW10/A and got the FIR registered through Ct. Parvinder. He has deposed that he prepared the site plan at the instance of the victim vide Ex.PW10/B and thereafter he interrogated the accused persons and arrested them. The witness has deposed that thereafter he arrested the accused Ravi Kant and Deep Narayan, their personal search was conducted and their disclosure statements were recorded. He has further deposed that during the course of investigations, he recorded the statements of witnesses collected the call details of mobile phones of the victims and prepared the charge sheet and filed the same in the court. He has identified the accused persons and also the case property.
(23) In his cross examination, the witness has deposed that at about 10.30 PM the complainant Mohd. Akhtar met him first time at the spot along State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 24 of 34 with two of his cousins. According to him, he recorded the statement of Mohd. Akhtar and thereafter prepared the seizure memos and the rukka was prepared thereafter which was sent at about 1.10 AM. He has deposed that Ct. Parvinder took about 3040 minutes for going to the police station along with rukka and reaching back at the spot and during this period he (witness) prepared the site plan and interrogated the accused persons. He has deposed that the information about the arrest of accused Ravi Kant and Deep Narayan was given to the mother and father respectively in the night at about 3:00 AM. He has denied that the investigations have not been carried out in the manner as deposed by him or that the accused persons have been falsely implicated or that nothing was recovered from the possession or at the instance of the accused persons.
STATEMENT OF THE ACCUSED & DEFENCE EVIDENCE:
(24) After completion of prosecution evidence the statement of the accused was recorded under Section 313 Cr.P.C. wherein all the incriminating evidence was put to him which he has denied. Both the accused have stated that they are innocent and have been falsely implicated in this case by the police after lifting them from their respective houses. According to the accused, they did not make any disclosure statement and the alleged recovery has been planted upon them by the police in order to implicate them in this case.
State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 25 of 34
FINDINGS:
(25) I have heard the arguments advanced before me by the Ld. Addl.
PP for the State and the Ld. Defence Counsel. I have also gone through the written memorandum of arguments filed by the parties and the evidence on record. My findings are as under.
(26) The case of the prosecution is that on 28.9.2012 at about 10:00 PM at Service Lane, opposite Hans Cinema, GTK Road, Lal Bagh, the accused Ravi Kant and Deep Narayan in furtherance of their common intention committed robbery of Rs.100/ and mobile phone make Micromax with Mobile No. 9654759731 from the possession of Mohd. Akhtar, one mobile phone make Le Phone with Mobile No. 8447426189 from the possession of Mohd. Hazrat and mobile phone make Karbon with Mobile No. 9953575599 from the possession of Mohd. Mahram. It is alleged that while committing the said robbery, the accused Deep Narayan used deadly weapon i.e knife which he put on the neck of Mohd. Akhtar. It is further alleged that the robbed mobile make Micromax belonging to Mohd. Akhtar and another mobile make Le Phone belonging to Hazrat and mobile make Karbon belonging to Mohd. Mahram were recovered from the possession of accused Ravi Kant.
(27) Thereafter on receipt of DD No. 34A regarding the incident of robbery as aforesaid, SI Rakesh Kumar along with Ct. Parvinder reached at the spot i.e. Service Road, opposite Hans Cinema, Lal Bagh, Azadpur where Ct. Rahul, Ct. Kamlesh and Ct. Krishan met him and they produced two State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 26 of 34 persons namely Deep Narayan @ Sanjay @ Sanju Baba and Ravi Kant before him along with recovered articles. The victims Mohd. Akhtar, Mohd. Hazrat and Mohd. Mehram were also present there and Ct. Krishan informed him that the above said two apprehended persons committed robbery with victims on the pointing of knife. SI Rakesh Kumar recorded the statement of Mohd. Akhtar who alleged that he along with Mohd. Hazrat and Mohd. Mehram were robbed of their belongings i.e. mobile phones etc., by the accused persons on the point of knife. SI Rakesh Kumar prepared a rukka on the basis of statement of Mohd. Akhtar, made his endorsement on the same and got the FIR registered through Ct. Parvinder. He thereafter prepared the site plan of the spot, took the recovered articles into possession and prepared the seizure memos after which the accused persons were arrested and after completing the investigations, the charge sheet was filed in the court. (28) It is submitted by the Addl. PP that in so far as the public witnesses i.e. Mohd. Akhtar (PW5) and Mohd. Mehram (PW6) are concerned, they have corroborated each other on material particulars i.e. identity of the accused and also the manner in which the offence has been committed and have also identified the robbed articles i.e. Mobile Phones and hence under no circumstances they can be doubted. He has pointed out that the victims were put into fear and hence the provisions of Section 397 Indian Penal Code are also liable to be invoked against the accused Deep Narayan. (29) On the other hand the Ld. Defence Counsel has submitted that there is a long delay in registration of FIR and the entire story put forwarded State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 27 of 34 by the prosecution has not been proved and confirmed by the public witnesses including the complainant. It is submitted that the alleged recoveries so effected by the investigating agency have not been carried out in a legal manner and point towards the fact that they have been planted upon the accused. It is further pointed out that the preparation of seizure memos of the mobile phones and knife including the apprehension and arrest of the accused persons, had taken place much prior to the registration of the FIR and despite the same, the various witnesses of the prosecution i.e. Ct. Parvinder Kumar (PW7) and Ct. Krishan Kumar (PW8) have stated that none of the documents including the seizure memos have been changed and are in the same position as they were originally written.
(30) In this regard Ld. Defence Counsel has placed in reliance in the case of Lalji Shukla Vs. State, Crl. Appeal No. 124/95 dated 29.10.2099 in support of his averments that an inference can be drawn when the FIR had already been recorded and all the documents were created much later by the investigating agency benefit of which should be given to the accused. He has further pointed out that all the public witnesses have denied the recovery of the stolen articles in their presence.
(31) I have considered the rival contentions and also the material which has come on record and at the very outset I may observe that all the star witnesses of the prosecution namely Mohd. Akhtar Ali (PW5) and Mohd. Mehram (PW6) have not supported their first version i.e. the prosecution story regarding the manner in which the entire episode had taken place. State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 28 of 34 They have only identified the accused as the persons who committed the robbery upon them and robbed them of their cash and mobile phones but does not support their earlier version to the effect that after committing the robbery while the accused were fleeing away, they raised a hue and cry on which the police officials who were coming from the opposite side apprehended the accused and the stolen articles were recovered from the possession of the accused persons after which FIR was registered. Rather, on the contrary, the entire story which has now emerged from the evidence on record raises a serious doubt with regard to actual happening of the event as claimed by the alleged victims. The eye witnesses / victims have stated that after the incident they were extremely perturbed that they went back home and it was Mohd. Akhtar whose mobile bearing no. 9654759731 had been robbed, who made a call on his mobile phone on which some police official spoke from the other side after which he went to the Police Station and FIR was registered and even identified the accused who were already present in the Police Station. The electronic record of these robbed mobile phones from the victims bearing nos. 9654759731, 8447426189 and 9953575599 do not corroborate and confirm the case so put forth by the prosecution. The electronic record has been proved by Deepak (PW4) who has proved that the above mobile numbers have been allotted in the name of Maha Misaruddin and Mohd. Chhedi. The CDRs of the above mobile numbers reveal that they were switched off and no calls were made at the time of the alleged incident or even thereafter raising a serious doubt on the happening of the actual State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 29 of 34 incident itself. In fact the perusal of the CDR of mobile no. 9654759731 shows that it was not operated after 28.9.2012; 8447426189 was not operated after 27.9.2012 and 9953575599 was not operated after 29.9.2012 after 1:10 PM i.e. afternoon and hence where is the question of these persons making a call or some police officer answering the same. Why these persons would carry switched off mobile phones in their pockets and in case Mohd. Akhtar claims that he made a call on his robbed mobile which was picked up by some police official from other side, why this call is not reflected in his call detail record. It all appears to be a Cock and Bull story. It is writ large that not only these witnesses have came up with a new story altogether but even the electronic record does not support the allegations made by the prosecution with regard to the recovery of the mobile phones robbed from the victims from the possession of the accused. Further, I may observe that the conduct of the victims / public witnesses is not above board. They have very conveniently concealed their correct addresses where they were residing on rent and details of their landlord at Lal Bagh. Not only this, even the Investigating Officer has most dubiously avoided to place the said details on record. In case if the accused were residents of Lal Bagh as claimed by them, why would they conceal the address. It is also apparent from the evidence on record that the victims claim that they left this address on the very next day and went to Bihar. Why was this sudden change of plan that within 24 hours of the incident, the witnesses who were otherwise residing at Lal Bagh on rent (as claimed by them) suddenly went away to Bihar after registration of State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 30 of 34 the police case. Also, Deep Narayan himself is a resident of Lal Bagh and under the given circumstances it is probable that the accused and eye witnesses were known to each other and perhaps this is the reason that the addresses of the said victims / eye witnesses has been deliberately withheld form the court. Further, no document regarding the purchase or user of above mobile phones by the victims have been placed on record to even remotely suggest that they were using the said mobile sets. Further, it borne out from the evidence on record that all three witnesses have turned hostile, none of the documents allegedly made at the spot bear the signatures by public persons and rather on the very next date after the incident, these persons (victims) had left Delhi for reasons best known to them and it is this which creates a doubt in the mind of the court and hence benefit of doubt is liable to be given to the accused persons. Hence in view of this background, I hereby hold that the prosecution has not been able to prove and substantiate that the accused were apprehended at the spot of incident itself in the presence of the three victims.
FINAL CONCLUSIONS:
(32) In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 31 of 34
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 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.
(33) Applying the above principles of law to the facts of present case, I hereby hold that the prosecution has not been able to prove and establish that on 28.9.2012 at about 10:00 PM at Service Lane, opposite Hans Cinema, GTK Road, Lal Bagh, the accused Ravi Kant and Deep Narayan in furtherance of their common intention committed robbery of Rs.100/ and mobile phone make Micromax with Mobile No. 9654759731 from the possession of Mohd. Akhtar, one mobile phone make Le Phone with Mobile No. 8447426189 from the possession of Mohd. Hazrat and mobile phone make Karbon with Mobile No. 9953575599 from the possession of Mohd. State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 32 of 34 Mahram. The prosecution has also failed to prove that while committing the said robbery, the accused Deep Narayan used deadly weapon i.e knife which he put on the neck of Mohd. Akhtar. It also does not stand proved that the robbed mobile make Micromax belonging to Mohd. Akhtar and another mobile make Le Phone belonging to Hazrat and mobile make Karbon belonging to Mohd. Mahram were recovered from the possession of accused Ravi Kant.
(34) In this background, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused persons. The materials brought on record by the prosecution are insufficient to hold that each of the accused was guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a court to cross, while finding the guilty of an accused, particularly in cases based on circumstances evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Ravi Kant and Deep Narayan beyond reasonable doubt and hence, benefit of doubt is being given to them. State Vs. Ravi Kant & Anr., FIR No. 242/12, PS Adarsh Nagar Page 33 of 34 (35) In view of my above discussions, the accused Ravi Kant is hereby acquitted of the charges under Section 392/411/34 Indian Penal Code. The accused Deep Narayan is hereby acquitted of the charges under Section 392/397/34 Indian Penal Code and under Section 27 Arms Act. (36) Both the accused are on bail. Their sureties stand discharged as per rules. File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 11.12.2013 ASJ (NW)II: ROHINI
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