Delhi District Court
State vs . (1) Rohit Soni @ Ajay on 28 March, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 69/2013
Unique Case ID: 02404R0163862012
State Vs. (1) Rohit Soni @ Ajay
S/o Suresh Chand
R/o H. No. A341, Block No. 4.
Jwalapuri, Nangloi Depot, Delhi.
(Convicted)
(2) Sanjay Kumar @ Vicky
S/o Mahender Kumar
R/o A342, Block No. 4.
Jwalapuri, Nangloi Depot, Delhi.
(Convicted)
FIR No. : 483/2011
Police Station : Subhash Place
Under Section : 392/397/411/34 Indian Penal Code
Date of committal to Sessions Court : 23.07.2012
Date on which orders were reserved : 06.02.2014
Date on which judgment pronounced : 19.03.2014
JUDGMENT
Brief Facts:
(1) As per the allegations on 15.12.2011 at about 9:30 PM at Shop No. 164, Kapil Vihar, Pitampura, Delhi, the accused Rohit Soni State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 1 of 103 @ Ajay and Sanjay @ Vicky in furtherance of their common intention entered the shop of complainant Umesh Yadav and robbed cash amount of Rs.42,364/ from the cash counter along with one Samsung Galaxy Mobile bearing phone No. 7503087799, on the point of pistol. It is further alleged that during the commission of robbery, the accused Rohit Soni had used deadly weapon i.e. pistol which he showed to the complainant. It is also alleged that during investigations, the accused Sanjay Kumar @ Vicky got recovered the robbed mobile phone make Samsung Galaxy from his residence which mobile was robbed by them from the complainant Umesh Yadav.
Case of Prosecution in brief:
(2) The case of prosecution in brief is that on 15.12.2011 on receipt of DD No.37A regarding snatching of Rs.42,000/ and a motorcycle, SI Sandeep Singh along with Ct. Baldev Raj reached at the spot i.e. 164, Kapil Vihar, Pitam Pura, Delhi, where they met the complainant Umesh Yadav who made his statement before the police stating that he was working as Store Manager in the Showroom of American Tourister Company, at 164, Kapil Vihar, Pitam Pura, Delhi. Umesh Yadav has stated that apart from him, Shiv Sahay and Arun Sagar were also working in the showroom and they used to work from 9:30 AM and till 9:00 PM. Thereafter they used to keep State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 2 of 103 the amount of daily sale in the cash counter before closing the showroom. Umesh Yadav alleged that on 15.12.2011 at about 7:30 PM Arun Sagar went to another showroom at Sector8, Rohini while at about 9:30 PM, Shiv Sahay also went home after which he (Umesh Yadav) was alone in the showroom. Umesh Yadav alleged that at about 9:30 PM, he counted the cash amount of daily sale which was Rs.42,364/ and kept the same in the cash counter when two boys, who were wearing winter caps and had covered their faces with handkerchief, came inside the showroom and removed the cash from the counter and also removed his mobile phone make Samsung Galaxy Pop No. 7503087799 after which he got nervous and the assailants left the spot in their motorcycle. The complainant also gave the description of the assailants. (3) Thereafter, during the investigations, on 26.2.2012 pursuant to a secret information, the accused Rohit Soni @ Ajay and Sanjay @ Vicky were arrested from near the ganda nala pullia, Chirag Delhi Village by the Special Staff, South District, in some other case. It is alleged that on formal search of accused Rohit @ Soni, one country made katta along with two live cartridges were recovered. It is also alleged that on formal search of accused Sanjay @ Vicky, one loaded katta and one more live cartridge were recovered. It is also alleged that the accused Sanjay got recovered four mobile phones from his house at A342, Jwalapuri, Nangloi, out State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 3 of 103 of which one mobile phone make Samsung Galaxy Pop bearing IMEI No. 357863/04/272471/6 was belonging to Umesh Yadav who is the complainant in the present case. It is further alleged that both Rohit Soni and Sanjay disclosed their involved in the commission of robbery in the present case. Thereafter, information was received at Police Station Subhash Place pursuant to which the accused Rohit Soni and Sanjay were arrested in the present case as well. (4) On the basis of the statement of complainant, a rukka was prepared and FIR was got registered. During investigations, the accused persons were arrested and after completing the investigations, the charge sheet was filed in the court.
CHARGE:
(5) Charge under Section 392/397/34 Indian Penal Code was settled against the accused Rohit Soni @ Ajay and Sanjay @ Vicky.
Charge under Section 411 Indian Penal Code was also settled against the accused Sanjay @ Vicky. Both the accused have pleaded not guilty and claimed trial.
(6) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 4 of 103
List of witnesses:
Sr. PW No. Name of the Details of the witness
No. witness
1. PW 1 HC Rohtash Police witness - Duty Officer
2. PW2 Umesh Yadav Public witness Complainant / victim
3. PW3(A) HC Vikram Police witness MHCM
4. PW3 HC Narender Police witness - MHCM/ Duty Officer
5. PW4 Ranjeet Singh Public witness - owner of the mobile
shop
6. PW5 Vikas Chikara Public witness - employer of the victim
7. PW6 Ms. Mamta Official witness - Assistant Ahlmad
Chaudhary
8. PW7 HC Vijay Kumar Police witness who has proved the arrest
of accused
9. PW8 Ct. Ganga Singh Police witness who had joined
investigations with the IO of present case
10. PW9 Ct. Mukesh Police witness who had joined
Kumar investigations with the IO of present case
11. PW10 SI Ajit Singh Police witness Investigating Officer
12. PW11 HC Surender Police witness who has proved the arrest
of accused
13. PW12 HC Baldev Police witness who had gone to the spot
along with SI Sandeep
14. PW13 HC Ashok Kumar Police witness who has proved the arrest
of accused
15. PW14 SI Sandeep Police witness - Initial Investigating
Officer
16. PW15 Ct Jaswant Police witness who has proved the
recovery of motorcycle from the house
of accused Rohit
State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 5 of 103
17. PW16 Ct. Iqbal Police witness who has proved the
recovery of motorcycle from the house
of accused Rohit
18. PW17 SI Lalit Kumar Police witness - Investigating Officer of
the present case
19. PW18 SI Narsi Prashad Police witness who has proved the
recovery of motorcycle from the house
of accused Rohit
20. PW19 Sh. Sunil Kumar Official witness Ld. MM who has
proved the TIP proceedings of both the
accused
Note: Inadvertently both HC Vikram and HC Narender were
examined as PW3, hence in order to avoid confusion and for the sake of convenience HC Vikram shall henceforth be read as PW3(A) and the documents exhibited by him shall be accordingly read as PW3(A)/1 and PW3(A)/A whereas HC Narender shall be continued to be read as PW3 (no change).
List of the documents exhibited Sr. No. Exhibit No. Details of documents Proved by
1. PW1/A FIR HC Rohtash
2. PW1/B Endorsement on Rukka
3. PW2/A Statement of Umesh Umesh
4. PW2/B Site plan
5. PW2/C Cash memo
6. PW3A/1 Affidavit of evidence of HC Vikram HC Vikram
7. PW3A/A Copy of Reg no. 19 Sr. No. 2909
8. PW3/1 Affidavit of evidence of HC Narender HC Narender
9. PW3/A Copy of FIR No. 64/12 PS Malviya Nagar
10. PW3/B Endorsement On Rukka State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 6 of 103 11. PW3/C Copy of FIR No. 65/12
12. PW3/D Endorsement on rukka
13. PW3/E Copy of Reg no. 19 Sr. No. 2116
14. PW3/F Copy of RC 36/21/12
15. PW3/G Copy of Reg No. 19 Sr. No. 2117
16. PW3/H Copy of RC 37/21/12
17. PW3/I Copy of Reg No. 19 Sr. No. 2118
18. PW5/A Complaint of Vikas Vikas
19. PW5/B Cash Balance Report
20. PW6/A Arrest memo of Sanjay Mamta Chaudhary
21. PW6/B Personal search memo Sanjay Kumar
22. PW6/C Disclosure Statement of Sanjay
23. PW6/D Seizure memo of mobile phone 24. PW6/E Copy of FIR 65/12 25. PW6/F Copy of FIR NO. 64/12
26. PW6/G Arrest memo of Rohit Soni
27. PW6/H Personal search memo
28. PW6/I Sketch of Katta
29. PW6/J Seizure memo of Desi Katta
30. PW6/K Disclosure statement of Rohit Soni
31. PW6/L CFSL Receipt
32. PW6/M CFSL Receipt 33. PW6/N Copy of FIR NO. 57/12
34. PW6/O Copy of Arrest memo of Rohit Soni
35. PW8/A Arrest memo of Rohit Ct. Ganga Singh
36. PW8/B Disclosure Statement of Rohit
37. PW8/C Pointing out memo of Rohit State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 7 of 103
38. PW8/D Arrest memo of Sanjay
39. PW8/E Disclosure statement of Sanjay
40. PW 8/C Pointing out memo of Sanjay
41. PW10/A Application for TIP SI Ajit Singh
42. PW10/B TIP proceedings (refusal by both accused)
43. PW10/C Application for copy of TIP
44. PW12/DX1 Confronted statement of HC Baldev HC Baldev Singh Singh
45. PW14/A DD NO. 37A SI Sandeep
46. PW14/B Rukka
47. PW17/A Documents showing the employment SI Lalit of Umesh Yadav and letter of Kumar appointment EVIDENCE:
(7) In order to discharge the onus upon it, the prosecution has examined as many as Nineteen witnesses:
Public Witnesses:
(8) PW2 Umesh Yadav has deposed that in the year 2011, he was working as Store Incharge in the showroom of American Tourister, at 164, Kapil Vihar, Pitam Pura, Delhi. According to him on 15.12.2011 at about 9.30 PM, he was alone in the store and it was time to shutter down the store. They used to keep the cash amount of the daily sale in the cash counter. The witness has deposed that at State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 8 of 103 that time he was having two mobile sets, one was Samsung Galaxy and the other was older one and both the said mobile sets were kept near the keyboard of cash counter. He has further deposed that at that time, he was busy on the system when in the meantime, one boy who was slip and tall "patla sa lamba sa", entered the store, who was wearing a woolen jacket and there was a cap on his head and behind the said boy, another short and healthy boy, "chhota sa" also entered the store. In the court, the witness has identified both the accused Rohit and Sanjay by pointing out towards them i.e. lamba sa and the other boy chhota sa.
(9) He has further deposed that he is residing at the given address for the last more than ten years. According to the witness, on the date of the incident, initially the short height boy whose name he later on came to know was Sanjay (correctly identified by the witness in the court) entered the shop at about 9:30 PM when he was closing the shop and came and stood near his chair on the side of the cash counter. Witness has deposed that in the meanwhile the other boy who followed him whose name later on he came to know Rohit came and stood in front of the cash counter. Witness has further deposed that the boy who was standing in front of the cash counter i.e. Rohit (correctly identified by the witness in the court) took the pistol from the pocket of his jacket and pointed the same on him from the front side and said "jo bhi hai, woh jaldi se nikal do". State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 9 of 103
According to the witness, the cash counter at that time was locked and the key of the same was under the dash board and he then took out the key and opened the cash counter and as soon as he did that, the second boy who was standing adjoining the cash counter i.e. Sanjay immediately picked up the currency notes which were tied with the rubber band and on this Rohit told him that there were more currency notes "yahi nahi ismei aur bhi hai woh bhi nikal". According to the witness, he told him there was no other cash and this was the only cash in the counter. He has deposed that his mobile make SAMSUNG Galaxy Pop in which he was using a SIM which he had recently taken whose number he does not recollect at present which was also kept on the cash counter which Sanjay picked up while leaving. The witness has deposed that while leaving the two boys threatened him and asked him to stay where he was and not to move "Yahi bethe rehna aur hilna mat". Witness has further deposed that he saw that these boys then went out and ran away on the bike which was parked outside on the right side. According to the witness, after these boys had left, he came out of the shop but he could not find anybody so he came back inside the shop and made a call on 100 number from the land line phone installed in the shop. Witness further deposed that after about 1015 minutes the police came at the spot and he informed them of all the details of what had happened. According to the witness, when the police came, he was State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 10 of 103 extremely scared and threatened because of the threat of the accused so he did not gave the complete details to the police and his statement was recorded on 15.12.2011 which is Ex.PW2/A bearing his signatures at point A. The witness has deposed that again on 17.12.2011 his detailed statement was recorded by the Investigating Officer when he provided him with all the details. He has deposed that the total amount of cash robbed by the accused was Rupees Forty Two Thousand, Three Hundred Sixty Four. According to the witness, the site plan was prepared by the Investigating Officer on his pointing out which is Ex.PW2/B. The witness has deposed that on 20.03.2012 both the accused were brought to the shop and he identified both of them i.e. Rohit and Sanjay as the persons who had committed robbery in the shop. He had also handed over the purchase receipt of his mobile phone to the Investigating Officer and his statement was thereafter recorded. The witness has deposed that he handed over the cash memo of his mobile phone to the Investigating Officer on 03.05.2012 which mobile phone had been robbed on 15.12.2011 which cash memo is Ex.PW2/C which was seized by the Investigating Officer vide Ex.PW2/D bearing his signatures at point A. (10) On leading question put to the witness by Ld. Addl. PP for the State, witness has admitted that he had given the SIM number which he was using at the time of the incident to the police in his State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 11 of 103 statement made to them, which number is 7503087799. (11) Witness has identified the case property i.e. one mobile phone make SAMSUNG GALAXY as the one belonging to him bearing IMEI No. 357863/04/272471/6 and was robbed from him. The same is EX P1. He has also identified the one country made pistol Ex.P2.
(12) In his crossexamination by Ld. Defence Counsels, the witness has deposed that his shop does not have any CCTV camera installed and has voluntarily explained that There is a CCTV camera installed in the adjoining jewelry shop which is focused in such a manner that only the persons entering the shop can be noticed but not the ones who are walking on the road outside. According to the witness, they open the shop at about 10:30 AM and closed the shop at about 9:30 PM. He has deposed that on the one side of their shop is a jewelery shop and the other side is garments shop. Witness has admitted that the entire area is commercial. According to him, most of the shops start closing by 9 PM and other shops also closed by 9:30 PM. Witness has admitted that the adjoining jewelery shop security guards posted there around the clock. According to him he could not find any security guard in the adjoining shop when he went out. Witness has admitted that he did not raise any alarm. Witness has denied that there is a police picket and regular barricading done near his shop. Witness has denied that in the first statement made by State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 12 of 103 him to the police he did not give the details of the assailants to them. According to him, he had told the police in his statement that both the assailants had covered their faces with handkerchief and has voluntarily explained that he was very scared at that time on account of the threat given to him by the assailants and therefore out of fear he did not provide the details to the police but soon thereafter when he was taken to the police station and he was composed he gave them the details. He has deposed that he did not know the assailants previously nor he had seen them. He further deposed that the police did not show any photograph of the suspect nor got any sketch of the assailants prepared at his instance. According to the witness, apart from himself, there were two more boys employed in the shop namely Arun Sagar and Shiv Sahay and they were not present in the shop at the time of the incident. He has deposed that on the date of the incident Arun Sagar had been sent to the other shop at Rohini, Sector8 because of shortage of staff where he was sent in the evening at about 77:30 PM and the other boy Shiv Sahay used to come from Trans Yamuna therefore he was left by him at around 9:00 PM. The witness has deposed that daily attendance register is maintained in the shop which all the employees are required to sign at the time of arrival in the morning and also at the time of departure but the police did not take the register from him and has voluntarily explained that they had only seen the same. He deposed that he did State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 13 of 103 not give the name of the owner of the shop to the police and has voluntarily explained that he only gave them the name of the branch manager. The witness has deposed that this fact regarding the name of the branch manager is not mentioned in his statement. According to the witness, he had informed his boss about the incident soon after making a call on 100 number and he also informed the police about the same but did not get this fact recorded in his statement made to the police. He deposed that his branch Manager or owner never came to meet the police after the incident. According to him, the amount Rs forty two thousand three hundred sixty four was of two days sale. He has deposed that he told the police in his statement that the afore said amount was of two days sale. Witness was confronted with the statement Ex.PW2/A where it was not found so recorded. According to the witness, he did not show the record of the said two days sale to the police. He has deposed that the police did not record the statement of the persons present / working in neighbouring shops. The witness states that at present he is having mobile set which is make NOKIA and he is using at present but he is unable to give its model and the number which he is using at present. (13) The witness has further deposed that seven to eight police personals came on the spot on the day of incident and stayed there for about 15 minutes and has voluntarily explained that afterwards they took him to the Police Station, Saraswati Vihar where he State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 14 of 103 remained for more than 1½ to 2 hours. According to him, his statement was recorded at police station on 15.12.2011 but at that time no public person was present there except SI Ajeet Singh and one constable. He has deposed that he left the police station at about 12:301:00 AM on intervening night of 15/16.12.2011. He has further deposed that the site plan was prepared after recording his statement in the police station and has voluntarily explained that they had already seen the spot on that day. According to him, no paper work was done on the spot by the police. He deposed that the police came at the spot on next day also but police did not record the statements of his coworkers Shiv Sahay and Arun Sagar or the neighbors. Witness has denied that no robbery ever took place at his working place/ shop and that is why there are no statements of the neighbors and the coworkers. He has denied that in order to grab the money of his company of amount Rs. 42 thousand, three hundred sixty four he had intentionally fabricated a false story and implicated the accused persons falsely in connivance with the police. Witness has further denied that the whole story was concocted while sitting in the police station to grab the money by him and that is why in his first statement he was not able to give the descriptions of the accused persons. Witness has denied that he was not knowing the make and model of the mobile phone which he was using at the time of alleged incident and has clarified that even now he is not aware of the make State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 15 of 103 and model of the mobile being used by him presently. He has denied that no such incident happened and that is why neither owner / branch Manager and the coworkers reached at the spot on the day of the incident or that no such incident happened and that is why no register/ entry record of attendance or sale amount was given to the police. Witness has denied that the mobile phone has been planted upon the accused persons by him in connivance with the police or that it was in his possession when he was sitting in police station on the day of alleged incident or that pistol has been planted upon accused persons at his instance by the police and that is why he have not mentioned about pistol in his first statement Ex.PW2/A. Witness has also denied that 23 days after the alleged incident the police show him the photographs of the accused persons. (14) PW4 Ranjeet Singh has deposed that he is residing at the given address along with his family and he is running a mobile shop at 4/66, Shop No. 6, near Gurudwara, Ramesh Nagar under the name and style of Hemkunt mobile shop. He has deposed that on 20.05.2012 the police had come to his shop and showed him a bill bearing No. 255 dated 17.09.2011 of his shop. According to the witness, he confirmed that a phone make SAMSUNG GALAXY had been sold to a customer Ramesh Yadav for a sum of Rs.1800/ (wrongly typed as Rs.1,800/ whereas it should be Rs.8,300/ and is henceforth liable to be read as such) bearing the IMEI number State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 16 of 103 whose sticker was pasted on the receipt. Witness has brought the duplicate copy of the said bill which is on his record which bill is Ex.PW2/C bearing his signatures at point A. Counsel for the accused has raised an objection on the exhibition of this document as the copy is not readable. This court has observed that the date is visible from the original copy though it is blur. Further the receipt No. 255 is tallying with the original copy. The receipt prior of the said receipt is dated 254 is dated 17.09.2011 and the receipt subsequent thereof i.e. 256 onwards is dated 19.09.2011. (15) In his cross examination, the witness has admitted that the duplicate receipt on his receipt book does not have a sticker pasted on the receipt. Witness has voluntarily explained that in cases where two receipts are available on the box of the mobile phone, one is pasted on the duplicate receipt. Court has observed that many of the duplicate receipts do not have a sticker pasted and confirm the statement made by the witness. According to the witness, when the Investigating Officer had come to him, he had shown him the original receipt. Witness has admitted that there are some of the receipts i.e. at serial No. 232 and 250 which are unwritten and has voluntarily explained that no receipts are unwritten but some time due to inadvertence due to non placing of carbon they are left blank. According to him, he did not show the purchase bill regarding the State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 17 of 103 aforementioned item to the Investigating Officer. Witness has admitted that at the time of the mobile the identity proof of the customer is not taken by him. Witness has denied that there are two stickers on the above mentioned SAMSUNG mobile and he have deliberately not pasted the said sticker because no such transaction had taken place. Witness has denied that he have fabricated the above receipt Ex.PW2/A on the asking and at the instance of the local police and the complainant.
(16) PW5 Vikas Chikara has deposed that in the year 2012, he was working as Manager of the American Tourister, 164, Kapil Vihar, Pitumpura, Delhi, which is a showroom of the American Tourister. According to the witness, Umesh Yadav had been working in the above said American Tourister at 164, Kapil Vihar, Pitumpura, Delhi since 4.6.2011 and on 15.12.2011 he was working as a Store Manager at the above said place. The witness has deposed that on 15.12.2011, store opening amount was Rs.19,590/ cash and the sale was Rs.22,774/ and total Rs.42,364/ was in the cash box in the above said showroom and the same was robbed by the assailant on 15.12.2011 from the showroom. The witness has deposed that he gave a written statement to the police which is Ex.PW5/A bearing his signature and stamp at point A. According to the witness, he also handed over the cash balance report to the police which is Ex.PW5/B bearing his signature and stamp at point A. State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 18 of 103 (17) In his crossexamination, the witness has admitted that he had not given or been asked by Investigating Officer or the police officers regarding his appointment letter or ID Card with the American Tourister. Witness has admitted that no police verification of any of the employee working at American Tourister situated at 164, Kapil Vihar, Pitum pura, Delhi. He admits that no police verification of Mr. Umesh Yadav working as Store Manager had been done. Witness has admitted that the American Tourister at above said address is situated in the highly populated area adjacent various showrooms and shops. He further admits that usually there are lots of public persons roaming around till 10 PM. He further deposed that as per their company policy, the timing of opening is 10 AM and closing is 9.00 PM. According to him, usually three employees are working at the said showroom but he does not know how many employees were working there on 15.12.2011. (18) This court has observed that witness is confused thoroughly in the manner in which the question is being put. The counsel was directed to put the question again. The witness has deposed that Umesh Yadav was working in the store before and even on 15.12.2011 he was working as a store manager. Court has further observed that witness has already stated this in the chief. (19) A question was put to the witness that he had not handed over any appointment letter to the investigating officer, but this court State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 19 of 103 has disallowed the question being irrelevant as the witness was only the Store Incharge and not Incharge of handling appointments and other documents of the employees.
(20) The witness has admitted that on 15.12.2011, he was not working with the American Tourister. The witness has deposed that when the Investigating Officer had come to the store and asked for the statement of account, his other colleagues who were present told him that he could handover the statement of account to the Investigating Officer. He has deposed that the name of the colleague who asked him to handle the statement of account was Sh. Shiv Sahai. According to him, this employee Shiv Sahai was working in the store on 15.12.2011 and has voluntarily explained that he was working as his subordinate as a customer care executive. The witness has deposed that he only read the details from the records and handed over the statement of account but not the invoices. According to him, not all transactions take place by cash and has voluntarily explained that some are by Debit Card etc. The witness has deposed that they did not hand over any register of the daily transactions to the Investigating Officer and has voluntarily explained that they only saw the transactions from the system and after reading the same gave the details to the Investigating officer. He has deposed that no CCTV cameras were installed at American Tourister situated at 164, Kapil Vihar, Pitumpura, Delhi. According State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 20 of 103 to the witness, they do not have an exclusive security guard in the above said showroom. He has deposed that he is not aware if there is any Police Chowki near the said Show Room and has voluntarily explained that he has not seen any. According to the witness, the police did not make any investigations from the neighboring shopkeepers/ employees in his presence. He has deposed that they have an automatic system of data entry in their office and not manual and has admitted that present incident did not take place in his presence. Witness has denied that he is deposing falsely at the instance of Investigating Officer as well as his employees. Witness has further denied that the statement which he handed over to the Investigating Officer was fabricated later on the instructions of his senior officers only to connect the accused with the offence. Witness has admitted that he did not handover any detailed statement of the transaction dated 15.12.2011 to the Investigating Officer. Witness has denied that he did not handover the above statement because there was no such statement as there was no such transaction. According to the witness, he has not given any other record to the Investigating Officer except as deposed by him as above. Witness has admitted that an attendance register of employees is being maintained in the showroom. He has deposed that Shiv Sahai was interrogated by the police in his presence and his statement was recorded but he can not tell the details. Witness has denied that he is State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 21 of 103 deposing falsely at the instance of the Investigating Officer. Police / Official Witnesses:
(21) PW1 HC Rohtash has deposed that on 15.12.2011 he was posted as Duty Officer at Police Station Saraswati Vihar from 5:00 PM to 1:00 AM on 16.12.2011. According to him at about 11.15 PM, he received a rukka from Ct. Baldev Raj sent by SI Sandeep on the basis of which he got recorded the present FIR copy of which is Ex.PW1/A. He also made endorsement upo rukka which is Ex.PW1/B and after registration of FIR, handed over the copy of the same and original rukka to Ct. Baldev Raj.
(22) In his cross examination, the witness has admitted that prior to registration of FIR, an information was received in the police station which was recorded vide DD NO. 37A and was passed over to SI Sandeep however he is not aware if SI Sandeep went to the spot or not. He has denied that SI Sandeep had gone to the spot to verify the facts but no such incident was found to be occurred. (23) PW3A HC Vikram has tendered his examination in chief by way of affidavit Ex.PW3A/1 wherein he has relied upon the document i.e. entry in register no. 19 vide S. No. 2909 dated 19.4.2012 copy of which is Ex.PW3A/A. In his cross examination, the witness has deposed that the above entry is antedated and ante timed at the instance of the Investigating Officer. State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 22 of 103 (24) PW3 HC Narender has also tendered his examination in chief by way of affidavit Ex.PW3/1 wherein he has relied upon the documents i.e. FIR No. 64/12 of Police Station Malviya Nagar copy of which is Ex.PW3/A, endorsement on rukka Ex.PW3/B, copy of FIR No. 65/12 Ex.PW3/C and endorsement on rukka Ex.PW3/D. He has also relied upon the entry in register no. 19 vide S. No. 2116 copy of which is Ex.PW3/E, entry in register no. 21 vide RC No. 36/21/12 copy of which is Ex.PW3/F, entry in register no. 19 vide S. No. 2117 copy of which is Ex.PW3/G, entry in register no. 21 vide RC No. 37/21/12 copy of which is Ex.PW3/H and entry in register no. 19 vide S. No. 2118 copy of which is Ex.PW3/I. (25) PW6 Mamta Choudhary has brought the summoned file relating to FIR No. 64/12 S/V Rohit Soni @ Ajay and FIR No. 65/12 S/V Sanjay @ Vicky FIR No. 57/12 S/v Ajay @ Rohit Soni, police station Malviya Nagar. In case FIR No. 65/12, PS Malviya Nagar, S/v Sanjay @ Vicky, U/S 25/54/59 Arms Act, copy of arrest memo of accused Sanjay Kumar @ Vikky is Ex.PW6/A, copy of personal search of accused Sanjay Kumar @ Vikky is Ex.PW6/B, copy of disclosure statement of accused Sanjay Kumar @ Vikky is Ex.PW6/C, copy of pointing out memo and seizure memo of mobile phone is Ex.PW6/D and copy of FIR No. 65/12 PS Malviya Nagar is Ex.PW6/E. In case FIR No. 64/12, PS Malviya Nagar, S/v Rohit State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 23 of 103 Soni @Ajay, U/S 25/54/59 Arms Act, copy of FIR No. 64/12 is Ex.PW6/F, copy of arrest memo of accused Rohit Soni @ Ajay is Ex.PW6/G, copy of his personal search memo is Ex.PW6/H, sketch of desi katta and live cartridge is Ex.PW6/I copy of seizure memo of Desi katta and live cartridge is Ex.PW6/J, copy of disclosure statement of accused Rohit Soni @ Ajay is Ex.PW6/K, copy of CFSL Receipt vide No. CFSL2012/F263 dated 12/03/12 is Ex.PW6/L. Copy of CFSL report No. CFSL2012/F262 dated 16.03.2012 in case FIR No. 65/12 PS Malviya Nagar is Ex.PW6/M. The witness has also brought the case file of case FIR No. 57/12 PS Malviya Nagar, copy of FIR No. 57/12 is Ex.PW6/N, copy of the arrest memo of accused Rohit Soni @ Ajay in case FIR No. 57/12 PS Malviya Nagar is Ex.PW6/O and copy of the seizure memo of the motorcycle No. DL 9S AE 5800 in the above said case FIR is Ex.PW6/P. He has not been cross examined on behalf of the accused despite opportunity in this regard.
(26) PW7 HC Vijay Kumar has deposed that on 26.02.2012 he was posted in the Special Staff, South District, Delhi and on that day he along with SI Jeet Singh, SI Gyanender, ASI Ashok, HC Ashok, HC Surender, Ct. Yashbir reached at ganda nala pullia near Chirag Village, Delhi where at the instance of the secret informer and at about 4:35 PM they apprehended two persons on a motorcycle State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 24 of 103 which came from the outer Ring Road area. According to the witness, the motorcycle driver disclosed his name as Vikky and the pillon rider disclosed his name as Rohit Soni @ Ajay. He has deposed that on the formal search one loaded katta and one more live cartridge recovered from the possession of accused Rohit Soni. According to the witness, he conducted the proceedings against the accused Rohit Soni under Section 25 Arms Act. He has deposed that he unloaded the katta and found one live cartridge in the katta after which he prepared the sketch of the katta and both live cartridges vide Ex.PW6/I and kept the katta and cartridges in a cloth pullanda and sealed the same with the seal of VKH and seized the same vide seizure memo Ex.PW6/J and thereafter he filled the FSL form. The witness has deposed that he prepared the rukka and the same was sent to the PS Malviya Nagar through HC Ashok for registration of the FIR and FIR number 64/12 was registered at PS Malviya Nagar and he returned back and handed over the copy of the FIR and original rukka to him. Copy of the FIR is Ex.PW6/F. According to the witness, he arrested the accused Rohit vide Ex.PW6/G, his personal search was taken vide Ex.PWE6/H and his disclosure statement was recorded vide Ex.PW6/K. According to the witness, the accused Rohit made disclosure of the offence of case FIR No. 483/11 PS Subhash Palace and he disclosed that he had committed the robbery of that case and the robbed mobile phone was concealed State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 25 of 103 by the coaccused Sanjay @ Vikky and he also further disclosed that the recovered katta was used by him while committing the robbery of the case FIR No. 483/11 PS Subhash Palace. The witness has deposed that the motorcycle driver was also formally searched and katta was also recovered from his possession and the proceedings was conducted by HC Surender U/s 25 Arms Act and FIR No. 65/12 of PS Malviya Nagar was registered against the accused Sanjay @ Vikky. According to the witness, he gave information about the arrest of the accused Rohit Soni to the police of Police Station Subhash Palace after which the Investigating Officer of this case contacted him and obtained the photocopies of the relevant documents of case FIR No. 64/12 PS Malviya Nagar.
(27) The witness has identified the accused Rohit Soni @ Ajay and Sanjay @ Vikky. He has also identified the case property of case FIR No. 64/12 i.e. one country made pistol and one live cartridge and one empty fired cartridge as the same as recovered from the possession of accused Rohit Soni @ Ajay. Pistol is Ex.P2 and the cartridges are collectively Ex.P3.
(28) In his crossexamination, the witness has deposed that his duty hours were 24 hours on 26.02.2012. he deposed that they made DD No. 7 while departed from their office and has voluntarily explained that they recorded the DD No. 6 regarding receiving the secret information. He has deposed that the DD No. 6 was recorded State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 26 of 103 at about 2:30 PM and after ten minutes DD No. 7 was recorded and it was mentioned in the DD No. 7 that they were going to Triveni, Malviya Nagar regarding that 45 persons would gathered there. The witness has deposed that they reached Triveni, Malviya Nagar by government vehicle and reached there within 30 minutes. The witness has deposed that they gathered at Triveni Malviya Nagar near MCD office at a some distance. According to the witness, the public persons were passing through from there but he cannot say whether is was a public holiday or not but they were on duty. Witness has admitted that the Triveni Malviya Nagar near MCD Office is a residential area. Witness has denied that shops and offices are situated at the said place. According to him, he remained at near MCD Office for about 30 minutes upto 3:30 PM but no police officials from local Police Station Malviya Nagar joined with their team. He deposed that he had not given information to the local police regarding their raid and arrival. According to the witness, they asked public persons to join their raiding party but none agreed and they did not disclosed their names and addresses. He has deposed that they did not serve any notice upon them for their refusal to join the police party. Witness has admitted that the local of the said MCD Office is after coming from Chirag Delhi fly over towards IIT, at some distance at left the MCD office is situated. He has denied that near the pullia, the spot as stated there is a police picket maintained State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 27 of 103 by Police Station Malviya Nagar. He has stated that there are no street hawkers or shops situated towards Chirag Delhi village from Malviya Nagar pullia or that the pullia is a thickly populated and number of persons passing through said pullia every time. According to the witness, they apprehended three persons Virender, Rajesh and Narender at Triveni Malviya Nagar and they disclosed about their two associates and thereafter they reached at the pullia of Malviya Nagar towards the Chirag Village and meanwhile the motorcycle of the accused persons came there and they apprehended them. The witness has deposed that they apprehended Virender, Narender and Rajesh at about 3:153:30 PM. He further deposed that SI Jeet Singh conducted proceedings against them but he is unable to tell the name of the police officials specifically who apprehended the Virender, Narender and Rajesh. Witness has deposed that 34 police officials amongst them who apprehended the above said three persons. According to him, no written work was done by SI Jeet Singh in his presence regarding the arrest of above said persons. He as deposed that SI Jeet Singh along with above said three apprehended persons remained at Triveni near MCD office and he along with SI Gayanender, HC Surender, HC Ashok, Ct. Yashbir, Ct. Sandeep and two other police officials were present at the pullia towards the Chirag Delhi village where the above said two accused Rohit and Sanjay were apprehended by them. According to him, they did not State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 28 of 103 offer their personal search to the accused persons or to any other persons before taking the search of accused persons. He has deposed that they did not serve any notice to the public persons who refused to join their proceedings at the pullia and has voluntarily explained that as there was no time to serve such notice. According to him, they did not ask any public persons from the taxi stand, shops and the rehris to become the witness of the proceedings. He has deposed that they left the spot at about 7:45 PM. He further deposed that he prepared the documents while sitting in their official bus which was called by them at the spot and send the rukka at about 6 PM. According to him, he prepared the sketch and seizure memo of the country made pistol and cartridges before sending the rukka. He has deposed that HC Ashok returned back at the spot with copy of the FIR at about 7:15 PM. According to him, HC Surender was present there but he had conducted his proceedings regarding the accused Sanjay @ Vikky. He has deposed that HC Surender was also preparing his documents in the same bus. He does not know who took the rukka from HC Surender. Witness has denied that they obtained the finger prints of the accused persons at the spot or that the sketch Ex.PW6/I is not of the case property of this case which was recovered from accused Rohit Soni. He has deposed that he filled the FSL Form at the spot. According to him, he did not arrest the accused Rohit Soni at about 7:45 PM and he had not joined any State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 29 of 103 public person.
(29) The witness has further deposed that the loaded Katta was recovered from the possession of right side dub of accused Rohit Soni and one more live cartridge was recovered from his left pocket of pant however he is unable to give the description of the clothes worn by Rohit at that time. He has deposed that the secret informer pointed out the accused persons at a distance of about 2025 paces. He deposed that the accused persons were medically examined but he does not remember whether they were examined on the same day or on the next day. He has denied that he has not prepared any documents at the spot in the bus, that is why he has not mentioned the same in his case diaries. Witness has admitted that no written documents were prepared against the accused Sanjay @ Vikky in his presence. He deposed that he informed the Police Station Subhash Palace on 27.02.2012. He has denied that nothing was recovered from the accused persons or that they had not been arrested at the spot as stated by him or that accused persons were picked up from their houses or that as the accused has been falsely implicated in the present case and that is why no public person has been joined. He has further denied that as the accused were falsely implicated in this case that is why no finger prints has been taken or sent for FSL to authenticate the authorship of the case property or that all proceedings has been taken place at special staff office. He further State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 30 of 103 denied that SI Jeet Singh, SI Gyanender, HC Ashok, ASI Ashok, HC Surender, Ct. Yashbir along with him did not conduct any raid or that the case property has been planted by him upon the accused or that no disclosure has been recorded. Witness has denied that on account of his ill will he falsely implicated the accused persons in the present case as nothing has ever been occurred.
(30) PW8 Ct. Ganga Singh has deposed that on 20.3.2012, he was posted at Police Station Subhash Place and on that day he along with Investigating Officer SI Ajit Singh and Ct. Mukesh came to Rohini Court No. 102 where the accused Rohit @ Ajit and Sanjay @ Vicky were produced pursuant to the production warrant. According to him, After obtaining permission from the Ld. MM, Investigating Officer interrogated both the accused outside the court and formerly arrested both the accused and thereafter, one day PC remand of both the accused were taken and they were taken to shop no. 164, Kapil Vihar, Pitumpura, Delhi which is the showroom of mobile phones whose name he does not recollect. The witness has deposed that there the complainant had identified both the accused and thereafter Investigating Officer recorded his statement and thereafter, both the accused were taken to Bhagwan Mahavir Hospital where the medical examination was got conducted. According to the witness, they were taken to the Police Station and accused were put in lockup. The witness has deposed that the arrest State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 31 of 103 memo of the accused Rohit is Ex. PW8/A, disclosure statement of Rohit is Ex.PW8/B and pointing out memo of accused Rohit is Ex.PW8/C. The witness has proved the arrest memo of the accused Sanjay is Ex.PW8/D his disclosure statement Ex.PW8/E and pointing out memo of accused Sanjay Ex.PW8/C. He has identified both accused Sanjay and Rohit by pointing out towards them. (31) In his cross examination, the witness has deposed that they have reached the Rohini Court at 12.30 pm but he did not make his separate departure entry and has voluntarily explained that Investigating Officer had made a combined entry but he can not tell its contents. According to him, he had also not made any separate arrival entry on his return and has voluntarily explained that it was a combine entry by the Investigating Officer therefore he can not tell its contents and whether the Investigating Officer had mentioned about what ever had transpired during the day. He has deposed that the accused were produced in the court at around 11.10 pm. Witness has admitted that there was a large crowd outside the court room where the accused were interrogated which included public persons, litigants, lawyers, court staff etc. Investigating Officer did not ask any public person to join the proceedings of interrogation of accused. He has deposed that when the accused were produced in court, they were not in muffled face. According to him, he did not hear the Investigating Officer telling the accused to keep their faces muffled if State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 32 of 103 they wanted. He has deposed that they had left the court premises at around 2.30 pm and it took about 10 to 15 minutes to prepare the memo of arrest and write the disclosure statement of the accused. Witness has denied that the accused Rohit and Sanjay did not make any disclosure statements or that the Investigating Officer had recorded the same of his own after taking the signatures of accused on blank papers. Witness is unable to tell what the accused Rohit and Sanjay had told the Investigating Officer in their disclosure statement. He has deposed that they reached at the said showroom at Kapil Vihar at around 3.00 pm but he does not recollect the exact time however they remained there for about one hour. Witness has admitted that there are lot of shops in area at Kapil Vihar and other employees were present in the shop. He has deposed that the Investigating Officer did not ask any public witness to join the proceedings when the accused were taken there and has voluntarily explained that Only the complainants statement regarding identification was recorded. Witness has denied that the entire proceedings regarding the identification by the complainant have been fabricated by the Investigating Officer in connivance with the owner of the shop and senior officers.
(32) PW9 Ct. Mukesh Kumar has deposed that on 20.3.2012, he was posted at police station Subhash Place and on that day, he along with Investigating Officer SI Ajit Singh and Ct. Ganga State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 33 of 103 Singh came to Rohini Court No. 102 where the accused Rohit @ Ajit and Sanjay @ Vicky were produced pursuant to the production warrant where after obtaining permission from the Ld. MM on application, Investigating Officer interrogated both the accused outside the court and formerly arrested both the accused and recorded their disclosure. He has deposed that the accused were then put in muffled faces and an application was filed by the Investigating Officer before Ld. MM for conducting TIP which was marked to Ld. Link MM and the accused were taken to the court of Ld. Link MM where the accused refused for conducting TIP. According to the witness, thereafter, one day Police Custody remand of both the accused were taken to Kapil Vihar where they pointed out shop no. 164, Kapil Vihar, Pitampura, Delhi which is the showroom of tourist bag whose name he does not recollect. The witness has deposed that there one person whose name he later came to know was Umesh Yadav had identified both the accused and thereafter Investigating Officer recorded his statement. According to the witness, thereafter, both the accused were taken to Bhagwan Mahavir Hospital where the medical examination was got conducted. The arrest memo of the accused Rohit is Ex.PW8/A, his disclosure statement is Ex.PW8/B and the pointing out memo of accused Rohit is Ex.PW8/C. The arrest memo of the accused Sanjay is Ex.PW8/D, his disclosure statement of Sanjay is Ex.PW8/E and pointing out memo of accused State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 34 of 103 Sanjay is Ex.PW8/C. He has identified both accused Sanjay and Rohit by pointing out towards them and also by name. (33) In his cross examination, the witness has deposed that they reached the Rohini Court at 12.45 pm. in I10 car belonging to Investigating Officer SI Ajit. According to him, he did not make his separate departure entry and has voluntarily explained that Investigating Officer had made a combined entry but he does not recollect its number but he is aware that Investigating Officer had mentioned that he had come to the court for production and arrest of the accused. He has deposed that he had also not made any separate arrival entry on his return and has voluntarily explained that it was a combined entry by the Investigating Officer but he can not tell its number and says that he is aware that Investigating Officer had mentioned all that had transpired regarding the arrest of the accused and identification by the complainant. Witness has admitted that there was a large crowd outside the court room where the accused were interrogated which included public persons, litigants, lawyers, court staff etc. Investigating Officer did not ask any public person to join the proceedings of interrogation of accused. He has deposed that when the accused were produced in court, they were in muffled faces. He has further deposed that they had left the court premises at around 1.30 pm and it took about 3045 minutes to prepare the memo of arrest and write the disclosure statement of the accused. Witness State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 35 of 103 has denied that the accused Rohit and Sanjay did not make any disclosure statements or that the Investigating Officer had recorded the same of his own after taking the signatures of accused on blank papers. He is unable to tell what the accused Rohit and Sanjay had told the Investigating Officer in their disclosure statement and has voluntarily explained that he did not hear the said disclosure statement because he was at some distance. He has deposed that they reached at the said showroom at Kapil Vihar at around 1.45 pm and remained there for about 10 minutes. He has further deposed that the statement of Umesh Yadav was recorded in the Police Station after he was called there and they reached back to the Police Station at about 2.15 pm. The witness has deposed that when the accused were taken to the shop they were unmuffled. Witness has admitted that there are lot of shops in area at Kapil Vihar and other employees were present in the shop. He is not aware if Investigating Officer had asked any public witness to join the proceedings when the accused were taken there. He is also not aware if Investigating Officer obtained the signatures of the other employees on the pointing out memo. Witness has denied that the complainant Mr. Umesh Yadav did not identify the accused as alleged by him. Witness has denied that both the accused were shown to the complainant in the Police Station and tutored into identifying the accused by the Investigation Officer. Witness has denied that the entire proceedings regarding the State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 36 of 103 identification by the complainant have been fabricated by the Investigating Officer in connivance with the owner of the shop and senior officers.
(34) PW10 SI Ajit Singh has deposed that on 20.3.2012, he was posted at Police Station Subhash Place. According to the witness, earlier on 17.12.2011, the investigation file of the present case was handed over to him by SI Sandeep after which he had recorded the supplementary statement of the complainant and added Section 392/397/34 IPC in the FIR and also the stolen mobile phone of Umesh was put on search of IMEI. The witness has deposed that the application for seeking production of the accused was filed before the Ld. MM and pursuant to the same the accused Rohit and Sanjay were to be produced before the Ilaka Magistrate on that day and hence he along with Ct. Mukesh and Ct. Ganga Singh came to Rohini Court No. 102 where the accused Rohit @ Ajit and Sanjay @ Vicky were produced pursuant to the production warrant. The witness has deposed that he moved an application before the Ld. MM for interrogation of both the accused and after obtaining permission from the Ld. MM, he interrogated both the accused Rohit and Sanjay outside the court and formerly arrested both the accused Rohit and Sanjay and he recorded their disclosure statement. According to the witness, both the accused were already in muffled faces and he filed an application before Ld. MM for conducting TIP which was marked State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 37 of 103 to Ld. Link MM and the accused were produced before the Ld. Link MM where the accused refused for TIP. The said application is Ex.PW10/A and TIP proceedings conducted by the Ld. Link MM is Ex.PW10/B wherein both the accused Rohit and Sanjay had refused to participate in TIP proceedings. The witness has deposed that he also moved an application before the Ld. Link MM for copy of the above proceedings which Ex. PW10/C which was duly allowed by Ld. MM. The witness has further deposed that thereafter, both the accused were produced before Ld. MM and one day Police Custody remand of both the accused was taken after which both the accused were taken to Kapil Vihar where they pointed out shop of American Tourister at Kapil Vihar, Pitampura, Delhi, where the complainant Umesh Yadav and on seeing both the accused had identified both the accused assailants who had committed the robbery incident on 15.12.2011 and pursuant to the same he recorded his statement. The witness has further deposed that thereafter, both the accused were taken to Bhagwan Mahavir Hospital where their medical examination was got conducted after which they were taken to the Police Station and accused were put in lockup and he recorded statements of both the constables and relieved them. He also proved the arrest and personal search of the accused and has also identified both the accused i.e. Rohit Soni @ Ajay and Sanjay @ Vicky in the court.
State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 38 of 103 (35) In his cross examination, the witness has deposed that after he had put the stolen mobile of Umesh on IMEI search, no lead had been obtained by him till such time the accused were apprehended by the members of special staff, South Distt., Malviya Nagar. According to him, he did not get prepared any sketch of the suspects from the complainant Umesh Yadav. Witness has admitted that between December, 2011 and February, 2012, he had not got any lead with regard to the accused involved in the present case. According to him, on 20.3.2012, they reached the Rohini Court at 12.30 pm in his personal I10 car after making departure entry at police station regarding the court proceedings and production of the accused but he does not recollect whether the details regarding the other staff was also mentioned by him. He has deposed that he had made a separate arrival/ wapsi entry on his return to Police Station but he had not mentioned the entire details of the proceedings at length in the said wapsi. Witness has voluntarily explained that he had mentioned about informing the senior officers about whatever had transpired. Witness has denied that the above entries were fabricated. He has deposed that the accused were produced in the court at around 12.45 pm. Witness has admitted that there was a large crowd outside the court room where the accused were interrogated which included public persons, litigants, lawyers, court staff etc. He has deposed that he did not ask any public person to State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 39 of 103 join the proceedings of interrogation of accused. According to him, they had left the court premises at around 1.30 pm and it took about 30 minutes to prepare the memo of arrest and write the disclosure statement of the accused. Witness has denied that the accused Rohit and Sanjay did not make any disclosure statements or that the he had recorded the same of his own after taking the signatures of accused on blank papers. He has deposed that they reached at the said showroom at Kapil Vihar at around 2.00 pm and remained there for about 3045 minutes. He has deposed that he recorded the statement of Umesh Yadav within 05 minutes at the spot itself and then they reached back to the Police Station at about 4.305.00 pm. Witness has voluntarily explained that it was after getting the medical examination of the accused conducted. He has deposed that when the accused were taken to the shop they were unmuffled and has voluntarily explained that they had removed their muffled. Witness has admitted that there are lot of shops in area of Kapil Vihar and other employees were present in the shop but he did not join any public witness in the proceedings which took place in the shop nor he obtained the signatures of other employees in the pointing out memo prepared by him. The witness has deposed that he had received the entire information regarding the accused persons including the documents of their arrest and disclosures from the officials of special staff on 27.02.2012 i.e. prior to 26.03.2012 and DD entry in this State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 40 of 103 regard has been made. Witness has admitted that prior to 20.03.2012 the accused were in judicial custody and has voluntarily explained that he had moved an application for production of accused persons. Witness has denied that the accused had not appeared in muffled face before the illaka magistrate in pursuant to his production warrant or that he had shown the accused persons to the complainant in the court even prior to their formal arrest in the present case or that the complainant was present with him in the court on 20.03.2012. Witness has further denied that the complainant had identified the accused in the court on his pointing out in tutoring or that he has not joined any person from the market and showroom despite their availability. He further denied the suggestion that the complainant Umesh Yadav did not identify the accused as alleged by him or that the accused were shown to the complainant in the Police Station and tutored into identifying the accused by him only to work out the present case. Witness has further denied the suggestion that the entire proceedings regarding the identification by the complainant have been fabricated by him in connivance with the owner of the shop and senior officers or that the supplementary statement of the complainant dated 17.12.2011 regarding use of fire arm was recorded by him of his own only to aggravate the offence or that the complainant had not mentioned this fact earlier as there was no use of fire arm.
State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 41 of 103 (36) PW11 HC Surender has deposed that on 26.02.2012 he was posted in Special Staff, South District, Delhi and on that day secret information was received in their office that 45 assailants were coming at Triveni Malviya Nagar near MCD office and they were going to commit robberies in the show room. He has deposed that SI Jeet Singh was informed about the same and thereafter with the directions of higher officials, he along with SI Jeet Singh, SI Gyanender, ASI Ashok, ASI Ram Kishan, HC Ashok, HC Vijay Hooda, HC Shyamveer, Ct. Amreesh, Ct. Jasbir and other police officials went to Triveni MCD office, Malviya Nagar and reached there at about 3:00 PM by their TATA Mini bus. According to him, SI Jeet Singh asked 45 public persons to join police raiding party but none agreed and left the place without informing their names and addresses. He deposed that Narender, Virender and Rajesh were came there and at the instance of secret informer they were apprehended. According to him, SI Jeet Singh interrogated them and they disclosed that their two other associates also coming near the ganda nala pullia, Chirag Delhi village and thereafter he along with SI Gyanender, HC Vijay Hooda, HC Ashok, Ct. Yashbir and one or two police officials reached at above said pullia. He has deposed that HC Vijay Hooda asked 45 passerbys to join the police proceedings but none agreed and left the place without disclosing their names and addresses. According to him, at about 4:35 PM one motorcycle came State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 42 of 103 from the outer ring road area and at the instance of secret informer they apprehended both persons who were sitting on the motorcycle. He has deposed that the motorcyclist disclosed his name as Sanjay @ Vikky and pillion rider disclosed his name as Rohit Soni @ Ajay. According to him, he took the formal search of the accused Sanjay @ Vikky and one loaded katta and one more live cartridge recovered from his possession. Witness has deposed that on the formal search of accused Rohit Soni one country made katta and cartridges were recovered and proceedings under the Arms Act was conducted by HC Vijay. He also conducted the proceedings of accused Sanjay @ Vikky. According to him, he checked the katta recovered from the accused Sanjay and one live cartridge was found in the katta and prepared the sketch of katta and both live cartridges and he sealed the same in a cloth pullanda with the seal of SS and seized the same vide seizure memo. He also filled the FSL Form and the seal was handed over to Ct. Yashvir after use. According to him, he prepared a rukka and handed over the same to Ct. Yashvir for registration of the FIR and he went to PS Malviya Nagar and FIR No. 65/12 was registered at Police Station Malviya Nagar, copy of the said FIR is Ex.PW6/E. The witness has deposed that Ct. Yashvir came at the spot and handed over the copy of FIR and original tehrir to him. According to him, he arrested the accused Sanjay @ Vikky vide Ex.PW6/A took his personal search vide memo Ex.PW6/B and recorded his State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 43 of 103 disclosure statement vide Ex.PW6/C. The witness has deposed that the accused Sanjay @ Vikky disclosed in his disclosure statement that he had committed the robbery of this case FIR No. 483/11 Police Station Subhash Palace along with accused Rohit and he also disclosed that the robbed mobile phone was kept by him at his house. According to the witness, thereafter he along with Ct. Yasvir and some police officials with accused Sanjay @ Vikky reached at his house at A342, Jawalapuri, Nangloi and at the instance of the accused four mobile phones were recovered from his possession. He has deposed that he mentioned the IMEI number of all mobile phones in the seizure memo and he prepared the seizure memo of the same vide Ex.PW6/D. According to the witness, the mobile phone of SAMSUNG of black color GTS 5570 was a case property of this case. He has deposed that thereafter they returned back to the Police Station Malviya Nagar and he deposited the case property in the malkhana of Police Station Malviya Nagar and also recorded the statements of witnesses. The witness has deposed that he also informed the police of Police Station Subhash Place about the arrest of accused Sanjay @ Vikky and about the recovery of their case property, the mobile phone pursuant to which the Investigating Officer of the said case contacted him and he handed over relevant copies of documents of his case to the said Investigating Officer. Witness has identified the accused Rohit Soni and Sanjay @ Vikky State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 44 of 103 in the court. He has also identified the mobile phone make SAMSUNG GALAXY as same as recovered from the possession of the accused Sanjay @ Vikky having IMEI No. 357863/04/272471/6 which is Ex.P1.
(37) In his cross examination, the witness has deposed that the Secret informer came to them at about 2.30PM on 26.02.2012 but the secret informer did not tell the description of the accused persons, their age and physique etc. According to the witness, they reached near the MCD office at Malviya Nagar at about 3.10 PM and Narender, Virender and Rajesh were apprehended at about 3.35PM by SI Jeet Singh but he did not sign on the arrest memo of the above said persons. Witness has admitted that he was not present there at the time of arrest of above said persons. He has deposed that the public persons were passing bye's as it was a running road, there were shops and bus stand near the spot of their arrest but no public person was made witness of arrest of above said persons. Witness has voluntarily explained that he was not there as he had gone to pulia to search for another two persons as told by the above said accused persons. Witness has admitted that he had not given the number of the alleged motorcycle on which the accused Sanjay @ Vicky and Rohit @ Ajay were allegedly come. Witness has denied that he was not present there and he had not seen any motorcycle or motorcycle riders. According to the witness, accused Sanjay @ State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 45 of 103 Vicky was arrested by him at about 7.50PM and accused Rohit Soni @ Ajay was arrested by HC Vijay but he cannot say at what time accused Rohit Soni @ Ajay was arrested. Witness has denied that accused Rohit Soni @ Ajay was not arrested in his presence and that is why he cannot tell the time of his arrest. The witness has deposed that he did not use any cloth, gloves or paper etc. to lift the loaded katta and one cartridges allegedly recovered from the possession of accused Sanjay @ Vicky. Witness has denied that the said loaded katta and cartridges have been planted upon the accused Snajy @ Vicky and that is why the clothes, gloves and paper were not used while lifting the katta and cartridges. According to the witness, he is not aware whether any cloth or gloves were used while lifting the alleged country made katta and cartridges allegedly recovered from Rohit Soni. He has deposed that no finger prints were lifted from the above said both katta and cartridges. Witness has denied that no katta or cartridges were ever recovered from the possession of the accused Sanjay and Rohit and that is why no finger prints have been lifted from the said weapons. According to the witness, he prepared the sketch of katta and live cartridges immediately after recovery of the same i.e. at about 5.00PM. Witness has admitted that no public persons was made witness at the time of recovery of weapons. Witness has denied that no weapon was ever recovered from the possession of accused persons and that is why no public person was State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 46 of 103 made witness.
(38) The witness has further deposed that Ct. Yashvir went for registration of FIR alongwith rukka prepared by him after sealing and seizing of katta and cartridges allegedly recovered from the possession of accused Sanjay @ Vicky. He does not know whether the katta and cartridge was recovered from accused Rohit after leaving of the spot by Ct. Yashvir for registration of FIR or thereafter. According to the witness, Ct. Yashvir came at the spot after registration of FIR at about 7.30 PM but he did not record statement of any witness at the spot on that day. He does not know whether HC Vijay arrested accused Rohit Soni before registration of FIR or after registration of FIR. According to the witness, the disclosure statement of accused persons were not taken at the spot and has voluntarily explained that they were only verbally interrogated at the spot. He has deposed that he wrote down he disclosure statement of accused persons after reaching at the office of Special Staff, South District, at about 8.00 8.15PM. He is unable to tell the total number of the papers on which Investigating Officer had obtained the signatures of accused Sanjay prior or after registration of FIR. He has deposed that FIR No. 65/12 was registered only against accused Sanjay but he does not have any personal knowledge about the involvement of accused Rohit Soni @ Ajay in the present case and has voluntarily explained that he just know this much that State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 47 of 103 HC Vijay also brought accused Rohit to his house for some recovery on the same day i.e. the day of arrest of the accused Rohit Soni @ Ajay. According to him, he and HC Vijay alongwith other staff went together in the same government vehicle i.e. Mini bus for the recovery at the houses of Rohit Soni and Sanjay @ Vicky and has voluntarily explained that he went to the house of Sanjay @ Vicky and HC Vijay went to the house of Rohit Soni @ Ajay for the purpose of recovery that is why he do not know what was recovered from accused Rohit. Witness has admitted that they all police officials including HC Vijay along with both accused persons came back to the police station and thereafter to the office of Special Staff together in the same bus. Witness has admitted that no police official was left at the houses of accused persons. According to him, after arresting of accused persons they first went to the police station Malviya Nagar to deposit the allegedly recovered kattas and cartridges from both the accused persons and thereafter went to the office of special staff and thereafter they came to the houses of accused persons. He has deposed that they reached at Police Station Malviya Nagar for depositing the kattas and cartridges at about 8.058.10 PM. According to him, he did not inform PS Malviya Nagar about the above said recoveries or about arrest of both the accused persons. Witness has denied that he did not inform about the above said recoveries and arrest because the said kattas and State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 48 of 103 cartridges have been planted upon the accused persons prior to coming to the police station, to falsely implicate them. (39) Witness has further deposed that they remained at the house of accused persons for about 15 to 20 minutes and reached at police station Malviya Nagar at about 10.3011.00PM and thereafter to the office of the Special Staff at about 11.30PM. According to him, he recorded statement of witnesses i.e. of police officials in the office of Special Staff at about 11.45 PM till 12.00 midnight. He has deposed that he recorded the statement of two witnesses i.c. Ct. Yashvir and other's name he do not remember. Witness has denied that no disclosure statement was recorded by him of accused Sanjay or of accused Rohit Soni @ Ajay by HC Vijay or that both the accused persons were forcibly made to sign on some blank papers and later on the same were converted into several incriminating documents such as recovery memos, seizure memos, pointing out memos and disclosure statements etc. Witness has further denied that both the accused persons have been falsely implicated in this case to solve the blind case at the instance of Investigating Officer of the present case of PS Subhash Place or that the accused Rajender, Narender and Virender had not tell the names of the accused Rohit Soni and Sanjay or that Rohit and Sanjay have been shown arrested intentionally in those cases i.e. FIR No. 65/12 and other one to falsely implicate them.
State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 49 of 103 (40) PW12 HC Baldev Raj has deposed that on 15.12.2011 he was posted as a constable at Police Station Subhash Place and on that day he was on emergency duty from 15.12.2011 8.00 PM to 15.12.11 8.00 AM. According to the witness, a call had been received by SI Sandeep at about 9.309.45 PM vide DD No. 37A and on receipt of the same he along with SI Sandeep reached at the spot i.e. shop No.164, Kapil Vihar, Americal Tourister where they met one Umesh Yadav S/o Shatrughan who appeared to be scared, nervous and fearful (dara hua, ghabraya hua tha). The witness has deposed that the Investigating Officer interrogated him and recorded his statements and prepared rukka and handed over the same to him to take the same to Police station for the registration of the FIR and after the registration of the FIR, the Duty officer handed over to him the original tehrir and copy of FIR which he carried back to the spot and handed over the same to SI Sandeep. The witness has deposed that thereafter he along with the Investigating Officer and the complainant made a search for the assailants in the area but could not succeed and returned to the police station where SI Sandeep also showed dossiers of some criminals of the area to the complainant Umesh Yadav but he could not identify anybody.
(41) In his cross examination, the witness has deposed that he had gone to the spot with SI Sandeep in his car as they were already on patrolling duty in the area when they received the call of DD No. State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 50 of 103 37 and they reached the spot within 10 to 15 minutes i.e. around 10.00 PM and there were just one or two public persons along with Umesh Yadav. He is unable to tell whether those public persons were employee of the same shop or of the neighbouring shop. He has deposed that Investigating Officer took about 30 to 40 minutes to record his statement. According to the witness, Umesh Yadav had no injuries nor there was any damage to the shop. According to the witness, he did not check whether a CCTV camera had been installed in the shop of American Tourister and only saw the Investigating Officer talking to the complainant. According to the witness, he is aware that Investigating Officer SI Sandeep had tried to find out if there were any guards in the adjoining shops or CCTV camera installed in the adjoining shops but he am not aware of the details of the inquiry being made by SI Sandeep. He has deposed that he reached at the police station at about 11.00 PM . According to the witness, it took him about more than 30 minutes to get the FIR Registered. He has deposed that he reached back to the spot about 12.0012.15 AM and searched the area for the accused for about half an hour. According to the witness, they had searched the road and the parks in the area but could not find anybody. The witness has deposed that there is a police picket in the area and has voluntarily explained that there is one picket called the Safeda Picket which is about one kilometer away from the shop. Witness has denied that State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 51 of 103 there is a police picket near the shop. According to the witness, he had told the Investigating Officer while recording his statement that when they reached the spot the complainant seems to be scared and feared. Witness was confronted with statement Ex.PW12/DX1 where it was not so recorded. He has deposed that his statement was recorded by the Investigating Officer on 16.12.2011. He is unable to say whether any CCTV camera had been installed by the market association or by the police in the nearby locality of the shop / spot. According to the witness, no senior officer of the complainant was there with the complainant.
(42) PW13 HC Ashok Kumar has deposed that on 26.02.2012 he was posted in the Special Staff, South District, Delhi and on that day he along with SI Jeet Singh, SI Gyanender, ASI Ashok, HC Ashok, HC Surender, Ct. Yashbir, HC Vijay, HC Hawa Singh, HC Shyamvir, HC Veer Singh, HC Rajinder, Ct. Sandeep, Ct. Amreek, Ct. Vijay reached at the MCD office, Triveni, Malviya Nagar, Delhi, as according to a secret information 45 assailants were going to assemble there and would commit robbery in the show rooms. The witness has deposed that Virender, Naresh and Rajesh were apprehended there and SI Jeet Singh conducted the proceedings against them and they disclosed that their associates Rohit @ Soni @ Ajay and Sanjay@ Vicky would come at Chirag Delhi Pulia. According to the witness, he alongwith SI Gyanender, ASI Ashok, State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 52 of 103 HC Vijay, HC Surender, Ct. yashbir, Ct. Sandeep reached at Pulia of Chirag Delhi. He has deposed that at the instance of the secret informer and at about 4:35 PM they apprehended two persons on a motorcycle of Platina which came from the Outer Ring Road area. According to the witness, the motorcycle driver disclosed his name as Sanjat@ Vikky and the pillion rider disclosed his name as Rohit Soni @ Ajay and on the formal search one loaded katta and one more live cartridge recovered from the possession of accused Rohit Soni. According to the witness, HC Vijay conducted the proceedings against the accused Rohit Soni U/s 25 Arms Act. He has deposed that he unloaded the katta and found one live cartridge in the katta and one more live cartridge was recovered from the pant of the accused Rohit Soni @ Ajay. According to the witness, he prepared the sketch of the katta and both live cartridges vide Ex.PW6/I. He has deposed that he kept the katta and cartridges in a cloth pullanda and sealed the same with the seal of VKH and seized the same vide seizure memo Ex.PW6/J and the seal after use was handed over to him. The witness has deposed that HC Vijay prepared the rukka and the same was handed over to him and he went to the Police Station Malviya Nagar for registration of the FIR and FIR number 64/12 was registered at Police Station Malviya Nagar. According to the witness, he returned back and handed over the copy of the FIR and original rukka to HC Vijay, copy of the FIR is Ex.PW6/F. He has State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 53 of 103 deposed that the Investigating Officer thereafter arrested the accused Rohit and took his personal search after which they went to Police Station Malviya Nagar and deposited the case property in the Malkhana and there they returned back to their office where disclosure statement was recorded vide Ex.PW6/K. He has deposed that accused Rohit also made disclosure regarding many cases including the present case. According to the witness, HC Surender conducted the proceedings against the accused Sanjay @ Vicky i.e. motorcycle driver. Witness has identified the accused Rohit Soni @ Ajay and Sanjay @ Vikky in the court. He has also identified the one country made pistol and one live cartridge and one empty fired cartridge as the same as recovered from the possession of accused Rohit Soni @ Ajay. Katta is Ex.P2 and the cartridges are collectively Ex.P3.
(43) In his cross examination, by Ld. Defence Counsel, the witness has deposed that he had disclosed the above said facts to the Investigating Officer of this case. He has deposed that the secret information was received their office at about 2.30 PM. He further deposed that all members of the raiding party were present in the office before their departure. He has deposed that they left their office at about 2.40 PM by their official bus bearing no. DL 1L E 4065 which was driven by Ct. Lakhminder and their departure DD was made. According to the witness, HC Surender and Ct. Yashvir State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 54 of 103 received the secret information and they informed SI Jeet Singh who briefed them about the information. He has deposed that SI Jeet Singh also informed their Incharge Inspector Ashbir Singh. According to the witness, secret informer was present in their office while the secret information was received and the secret information was recorded in the Daily Diary Register.
(44) The witness has deposed that they reached at the MCD Office, Triveni, Malviya Nagar at about 3.10 PM and SI Jeet Singh had briefed them about the location and according to the the direction they took position. He does not remember the exact location of each police official at MCD Office, Triveni, Malviya Nagar. He has deposed that Narender, Virender and Rajesh were apprehended by them at about 3.30 PM and these above said three persons were in the custody of SI Jeet Singh who were apprehended by HC Hawa Singh. He does not remember the name of the other police officials who apprehended them. He also does not remember as to how many police officials apprehended above said three accused namely Narender, Virender and Rajesh. According to the witness, SI Jeet Singh interrogated above said three persons who disclosed about their two associates who were coming at the PuliaChirag Delhi and on the direction of SI Jeet Singh, he along with other police officials went to the pulia of Chirag Delhi. He has deposed that no rukka was prepared by SI Jeet Singh in his presence. According to the witness, State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 55 of 103 SI Gyanender, SI Jeet Singh, ASI Mahender, ASI Ram Kishan, HC Hawa Singh, HC Shyamvir, HC Rajender, Ct. Vijay remained at the MCD Office, Triveni, Malviya Nagar. He has deposed that they left the MCD office at about 3.45 PM for Pulia of Chirag Delhi. Witness has admitted that both places MCD Office Triveni, Malviya Nagar and Chilrag Delhi Pulia are thickly populated area. According to the witness, Motorcycle came at the spot at the pulia Chirag Delhi while they reached there on foot along with secret informer and secret informer pointed out the accused Sanjay and Rohit. He has deposed that they took about 45 minutes to reach at the Pulia, Chirag Delhi from MCD Office Triveni at Malviya Nagar. According to the witness, the distance between above said two places is about 1½ kilometers. He has deposed that SI Gyanender asked 34 public persons at the pulia Chirag Delhi to join the raiding party but none agreed and left the place and it took about 23 minutes. According to the witness, SI Gyanender did not record the name of those persons and did not served any notice upon them. Witness has admitted that some Rehris and some houses with shops are situated near the pulia. He does not remember whether the Investigating Officer asked the shop keepers of the other side of the pullia to join the investigations. According to the witness, the distance between Pulia is about 20 meters however he did not measure the same. He has deposed that they did not offer their search to the accused or any other persons State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 56 of 103 before taking the search of the accused persons. Witness has admitted that accused persons were not searched in the presence of public persons. He does not remember the exact position of their team at Pullia of Chirag Delhi. He does not remember the registration number of the motorcycle on which the accused persons came at the pullia. According to the witness, HC Vijay did not inquire about the registration documents and the driving licence from the accused Rohit in his presence. He has deposed that both the accused persons were wearing helmet at that time. He does not remember whether the visor of the helmets was black or not. According to the witness, HC Surender conducted the proceedings separately and he did not join the investigation with him and no documents was prepared by HC Surender in his presence and has voluntarily explained that he join the investigation with HC Vijay who prepared the documents in his presence against the accused Rohit. According to the witness, HC Vijay prepared the sketch of the katta and cartridges first of all after sitting in the bus which was called at the spot. The witness has deposed that no barricades were lodged on the road by them and the local police for the above said raid. According to the witness, at the time of incident there was no police barricades put at the main road near the pullia by the police of Police Station Malviya Nagar. He has deposed that accused persons at a distance of 15 paces from them while the secret informer pointed State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 57 of 103 out the accused persons. He has further deposed that all the police officials were also accompanying them in the entire proceedings in the bus. According to the witness, no police official of Police Station Malviya Nagar had arrived at the spot nor they were informed by any of the team member. He has deposed that HC Vijay had prepared rukka, sketch which took 1½ hour. He has deposed that he left the spot at about 6 PM along with rukka to the police station in the TSR and reached at about 6:20 PM and he remained at police station till 7:30 PM and subsequently left the police station for spot in TSR. The witness has deposed that Ct. Yashbir had reached the Police station after about some time along with rukka sent by HC Surender. According to the witness, Ct. Yashbir remained at police station 7:30 PM onwards. He has deposed that he did not know what the other police officials were doing when he reached at the spot. He has also deposed that the entire team left the spot at about 7:45 PM. Witness has denied that no recovered articles were sealed at the spot. Witness has admitted that no memo of the handing over of the seal was prepared by the Investigating Officer in his presence. According to the witness, Investigating Officer was having the clothes for sealing the case property in his Investigating Officer kit bag. He has deposed that the dossier regarding the accused was not prepared in his presence. He further deposed that only the FSL form was filled up in his presence by the Investigating Officer and no other proceedings State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 58 of 103 relating to the same took place. Witness has admitted that he did not mention the exact details in his statement to the Investigating Officer that the accused was coming from the side of outer ring road. (45) According to the witness, he did not recollect if he had stated in his statement U/s 161 Cr. P.C. that the cartridges were taken out after unloading the katta. He has deposed that he also did not mention the details of having gone to the Police Station Malviya Nagar for registration of the FIR as deposed by him as aforesaid or regarding the deposition of the case property in the malkhana. Witness has denied that he has not mentioned these details because no such incident had taken place nor he had participated in any of the above proceedings as deposed by him. Witness has denied that all documentations were done while sitting in the office and he merely signed the same at the asking of the senior officers. Witness has denied that no accused had been arrested or that they did not make any disclosure statement as alleged by him or that the disclosure if any was recorded by the IO. He has further denied that nothing was recovered from the accused persons or that they had not been arrested at the spot as stated by him. He further denied that the accused persons were picked up from their houses or that as the accused has been falsely implicated in the present case that is why no public person has been joined. Witness has further denied that all proceedings has been taken place at special staff office or that that SI State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 59 of 103 Jeet Singh, SI Gyanender, HC Vijay, ASI Ashok, HC Surender, Ct. Yashbir along with him did not conduct any raid. He has also denied that the case property has been planted by Investigating Officer upon the accused and that no disclosure has been recorded. Witness has denied that with his ill will he has falsely implicated the accused persons in the present case as nothing has ever occurred. (46) PW14 SI Sandeep has deposed that on 15.12.2011 he was posted at Police Station Subhash Place and on that day he received a call from duty officer regarding DD No. 37 A when he was present on the road No.34 and attending some other call. He deposed that Ct. Baldev Raj was with him at that time. According to the witness, he went to the spot i.e. near 164, Kapil Vihar where Ct. Vijay handed over to him the copy of 37A regarding the robbery of Rs.4200/ and snatching a motorcycle and assailants ran away towards Madhuban Chowk. Attested copy of DD No. 37A is Ex.PW14/A. The witness has deposed that at the spot complainant Umesh Yadav, PCR Van was found present. According to the witness, he interrogated the complainant Umesh Yadav and in the mean time beat staff HC Parveen along with another constable whose name he does not recollect came there. He has deposed that he told to the beat staff that the assailants had gone towards Madhuban Chowk on a motorcycle and ask to trace out the assailants. According to the witness, at the spot he recorded the statement of Umesh Yadav State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 60 of 103 which is Ex.PW2/A on which he made endorsement which is Ex.PW14/B and the tehrir was handed over to Ct. Baldev Raj for registration of the case after which he prepared the site plan at the instance of complainant which is Ex.PW2/B. He also recorded the supplementary statement of Umesh Yadav and in the meantime Ct. Baldev Raj came at the spot and handed over to him computerized copy of FIR and original rukka. According to the witness, he again instructed to beat staff to trace the assailants in the nearby area and he along with Umesh Yadav try to search the assailants in the area but all in vain and reached at police station Subhash Place. He has deposed that he showed the dossier of different persons in the police Station to Umesh Yadav but he did not recognize any of the dossier. According to the witness, on the same day investigations was transferred to SI Ajeet by the order of SHO.
(47) In his cross examination, by Ld. Defence Counsel, the witness has deposed that he reached the spot at around 9:45 PM and at that time Umesh Yadav was alone along with the PCR van. According to the witness, he was inside the shop at that time but the adjoining shops were all closed and he did not find any guards at the adjoining shops nor he find any guards in the shop where Umesh Yadav was present. The witness has deposed he did not find anybody around the shop and therefore he did not interrogate any body else nor he called the Crime Team nor he preserve the scene of State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 61 of 103 crime or get any finger prints / chance prints lifted from the spot. Witness has denied that no incident had taken place in the manner as deposed by him or that he did not record the statement of Umesh Yadav as claimed by him because no such incident had taken place. According to the witness, he did not go to the Police Station personally to get the case registered and has voluntarily explained that the statement was sent through Ct. Baldev. Witness has denied that the FIR had been ante dated and ante timed to suit the prosecution case.
(48) PW15 Ct. Jaswant has deposed that on 04.03.2012 he was posted at Police Station Malviya Nagar and on that day he along with SI Narsi Parshad and accused Rohit @ Ajay went to house No. A341, Block No. 4, Jawalapuri in the investigations of the case FIR No. 57/12, U/s 392/34 IPC, PS Malviya Nagar where at the instance of accused Rohit a motorcycle bearing No. DL9SAE5800 of black color was recovered from outside the house of accused Rohit and also stated that the motorcycle was used in the commission of the present case. The witness has deposed that the said motorcycle was seized vide seizure memo Ex.PW6/P. Witness has identified the accused Rohit in the court.
(49) In his cross examination, the witness has deposed that SI Narshi and Ct. Iqbal were there with him in the investigations. Witness has admitted that when they left the police station State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 62 of 103 Investigating Officer was aware that the accused was to get the bike recovered pursuant to his disclosure. The witness has deposed that when they left the office Investigating Officer did not join any public person with him. According to the witness, in his presence the Investigating Officer did not ask any public person to join the police party when they reached Jawalapuri. Witness has admitted that the place where the residence of the accused Rohit is situated is a residential area and Investigating Officer had asked some neighbors to join the police party but they refused. He is unable to tell the details of the persons who were present in the house of accused Rohit at that time. Witness has denied that he cannot tell the details of the persons present in the house of Rohit because he did not go to the house of Rohit or because the motorcycle was planted on him. According to the witness, the house of Rohit is situated on the plot of 22 yards and it was of two floors and the entire house is occupied by the family of accused Rohit and states that the Investigating Officer must have checked the top floors to find out if there was anybody in the house apart from ladies and has voluntarily explained that accused was in his custody and therefore he remained on the ground floor. He has deposed that the motorcycle was parked in the gali outside the house. Witness has admitted that the gali was open street with free access to public and not a part of the private property of Rohit. According to the witness, the Investigating Officer must have State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 63 of 103 taken the keys of the motorcycle from the house of Rohit but he is unable to tell the details. Witness has denied that he is unable to give the details because Investigating Officer was already having the keys of the motorcycle which was planted on the accused Rohit or that he is deposing falsely at the instance of the senior officers. (50) PW16 Ct. Iqbal has deposed that on 04.03.2012 he was posted at Police Station Malviya Nagar and on that day he joined the investigations along with SI Narshi Parshad, Ct. Jaswant and took the accused Rohit @ Ajay to his house No. A341, Block No.4, Jawalapuri and at the instance of accused Rohit a motorcycle bearing No. DL9SAE5800 of black color make PULSOR was recovered from outside his above house and same was taken into possession vide memo Ex.PW6/P. According to the witness, the accused Rohit also disclosed that the above motorcycle was used in the present case and escaped from the spot on this motorcycle. He has identified the accused in the court.
(51) In his crossexamination by Ld. Defence Counsel, the witness has deposed that SI Narshi and Ct. Jaswant were there with him in the investigations and they left the police station at about 1010:30 AM. Witness has admitted that when they left the police station they were aware that the accused was to get the bike recovered pursuant to his disclosure. He has deposed that when they left the Police Station the Investigating Officer had joined the public State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 64 of 103 person with him but he is unable to tell its details and states that this pubic person also remained with them during the entire proceedings however he does not recollect if the said public person had signed any of the documents prepared by the Investigating Officer during the investigations which took place at Jawalapuri. Witness has denied that no public person had joined the investigations and that is why none of the documents bears his signatures. According to the witness, he does not recollect if the Investigating Officer had asked any public person to join the police party when they reached Jawalapuri. He states that they reached Jawalapuri after about 11 ½ hours of their leaving the police station and has voluntarily explained that it must be around 11:3011:45 AM. Witness has admitted that the place where the residence of the accused Rohit is situated is a residential area but he does not recollect if Investigating Officer had asked some neighbors to join the police party. He is unable to tell the details of the persons who were present in the house of accused Rohit at that time and has voluntarily explained that the accused was in their custody and they were standing outside and therefore he cannot tell who all were present in the house of accused Rohit. Witness has denied that he cannot tell the details of the persons present in the house of Rohit because he did not go to the house of Rohit or because the motorcycle was planted on him. He has deposed that the house of Rohit is situated on the plot of 22 yards and it was of two State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 65 of 103 floors and the entire house is occupied by the family of accused Rohit and the Investigating Officer had checked the top floors to find out if there was anybody in the house but he cannot tell if somebody was present there or not. The witness has deposed that the motorcycle was parked in the gali outside the house. Witness has admitted that the gali was open street with free access to public and not a part of the private property of Rohit. According to the witness, the Investigating Officer was having the keys of the motorcycle but he cannot tell from where he got the same. Witness has denied that he is unable to give the details because Investigating Officer was already having the keys of the motorcycle which was planted on the accused Rohit or that he is deposing falsely at the instance of the senior officers.
(52) PW17 SI Lalit Kumar has deposed that on 20.04.2012 he was posted at police station Subhash Place and on that day the investigations of the present case was handed over to him along with case file. According to the witness, on 03.05.2012 complainant Umesh Yadav came to the police station and he produced the bill of the robbed mobile phone and the same was taken into possession vide Ex.PW2/D and bill is Ex.PW2/C. Witness has deposed that he also collected the documents showing the employment of Umesh Yadav and the letter Ex.PW17/A was given by authorized signatory. According to the witness, Vikas S/o Virender, an employee of Bag State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 66 of 103 Zone Lifestyles Pvt. Ltd. has also given a letter which is Ex.PW5/A and Cash Balance report of the office of American Tourister which is Ex.PW5/B. According to the witness, he verified the bill of mobile phone Ex.PW2/C and recorded the statement of Hemkunt Mobile shop owner namely Ranjeet Singh. He has deposed that after completion of investigations, he filed the charge sheet in the court through SHO. Witness has identified both the accused in the court. (53) In his cross examination by Ld. Defence Counsel, the witness has denied that the bill of the mobile phone and Cash balance report has been fabricated only to create evidence in the case and to connect the accused persons with the present case. He has further denied that he is deposing falsely.
(54) PW18 SI Narsi Parshad has deposed that on 04.03.2012 he was posted at Police Station Malviya Nagar and on that day he along with Ct. Iqbal and Ct. Jaswant along with accused Rohit @ Ajay went to house No. A341, Block No. 4, Jawalapuri in the investigations of the case FIR No. 57/12, U/s 392/34 IPC, Police Station Malviya Nagar where at the instance of accused Rohit a motorcycle bearing No. DL9SAE5800 of black color was recovered from outside the house of accused Rohit and also stated that the motorcycle was used in the commission of the present case which motorcycle was seized vide seizure memo Ex.PW6/P. The witness has identified the accused Rohit in the court. The witness State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 67 of 103 has also identified the motorcycle make Pulsor of black color has produced by the MHC (M) bearing engine No. 25532, chases No. MD2JDJDZZTCD12290, as the same as got recovered at the instance of accused Rohit. Same is Ex.P4.
(55) In his crossexamination by Ld. Defence Counsels, the witness has deposed that Ct. Jaswant and Ct. Iqbal were there with him in the investigations. Witness has admitted that when they left the police station they were aware that the accused Rohit had offered to have the motorcycle recovered pursuant to his disclosure. He has deposed that when they left the police station one private person namely Rakesh who was driver was with them. Witness has admitted that Rakesh was not joined in any investigations and his signatures are not present on any of the documents. Witness has admitted that the place where the residence of the accused Rohit is situated is a residential area. According to the witness, he had asked the neighbors of Rohit to the police party when they reached Jawalapuri but they refused but he is unable to give their details. The witness has deposed that there 34 persons present in the house of accused Rohit when they reached there but he cannot tell their relationship with Rohit. Witness has denied that he cannot tell the details of the persons present in the house of Rohit because he did not go to the house of Rohit or because the motorcycle was planted on him. He has deposed that the house of Rohit is situated on the plot of 22 ½ yards State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 68 of 103 and it was of two floors but he is unable to tell if there are any tenants in the house or the entire property is occupied by the family of accused Rohit. According to the witness, the motorcycle was parked in the gali outside the house which gali was open street with free access to public and not a part of the private property of Rohit. He has deposed that the keys of the motorcycle were handed over to him by the family member of Rohit which he brought from first floor but he is unable to tell the details of the family members who had handed over the keys to him however he did not prepare any separate seizure memo of the keys. Witness has denied that the keys of the motorcycle were already with him or that the motorcycle was planted upon the accused Rohit or that he is deposing falsely at the instance of the senior officers.
(56) PW19 Sh. Sunil Kumar, the Ld. MM has deposed that on 20.3.2012 the application for conducting the TIP of accused Rohit Soni @ Ajay and Sanjay @ Vicky was marked to him by the Ld. Link MM. He has deposed that both the accused were produced before him by the Investigating Officer SI Ajit Singh in muffled face. According to the witness, both the accused were asked by him if they are ready to join the TIP proceedings or not and both the accused Rohit Soni @ Ajay and Sanjay @ Vicky refused to join the TIP proceedings which refusal statements of both the accused were recorded by him. The said TIP proceeding is Ex.PW10/B. This State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 69 of 103 witness has not been cross examined on behalf of the accused despite opportunity.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
(57) After completing the prosecution evidence, statement of accused was recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material was put to them which they have denied.
(58) According to the accused Rohit Soni @ Ajay he is innocent and has been falsely implicated by the police in this case.
He has stated that he has nothing to do with the alleged incident. He further states that after his arrest by the official of Police Station Saket / Malviya Nagar, he has been implicated in many cases of different police stations including the present case after which he was compelled to sign various blank documents which were converted into various memos. According to him in one of the case of Police Station Malviya Nagar, he has been already acquitted. He has stated that all the allegations made against him in the present case are false and fabricated and instead of searching the real culprits, the police has planted him in this present case.
(59) According to the accused Sanjay @ Vicky he is innocent and has been falsely implicated by the police in this case after lifting me from his house on 26.2.2012. He has stated that he has nothing to State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 70 of 103 do with the alleged incident. According to him, after his arrest by the official of Police Station Saket / Malviya Nagar, he has been implicated in many cases of different police stations including the present case after which he was compelled to sign various blank documents which were converted into various memos. He has further stated that in one of the case of Police Station Malviya Nagar he has been already acquitted. He has further stated that all the allegations made against him in the present case are false and fabricated and that instead of searching the real culprits, the police has planted him in this present case.
(60) In their defence, the accused have examined as many two witnesses i.e. DW1 Dilber Singh and DW2 Bimla.
(61) DW1 Dilber Singh has deposed that the accused Rohit along with his family is living in his neighborhood. According to the witness, Rohit was arrested from his house at about 1111:15 AM, about 1½ - 2 years before but the exact date he does not recollect now and states that he (Rohit) was taken by the police from the gali in front of their house, after his arrest from his house. (62) In his cross examination by Ld. Addl. PP for the State the witness has deposed that he is doing the job of printing at Deepashu Graphics at Jawalapuri and used to joined his duty at about 99:30 AM and returns back at around 99:30 PM. Witness has voluntarily explained that at the time of the incident he was not working any State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 71 of 103 where. According to him, he was not on job for only one month but he cannot tell for which month. He has deposed that Rohit used to work some where in a garments shop. Witness has denied that accused was not lifted from his house. Witness has denied that when accused was apprehended he made a disclosure statement in the present case. Witness has admitted that he have no personal knowledge of the present case. According to him, he made no complaint to any senior police officer or to the court when accused Rohit was lifted in his presence. Witness has denied that Rohit was not lifted in his presence from his house or that it is for this reason that he have not made any complaint to any senior police officer or to the court in this regard.
(63) DW2 Bimla has deposed that on 26th of about two years back accused Vicky was lifted from his house at about 7:30 AM by the police who were in civil dress and were taken from the gali in front of his house.
(64) In her cross examination, the witness has deposed that they were inside their house at that time and had just woke up when they heard some noise they came out. According to the witness, at that time there was a slight fog as the days were of winter. Witness has deposed that it his guess that these persons who had lifted Vicky were police officials but he cannot tell on what basis he made this guess but the said persons were not in uniform, nor he had seen them State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 72 of 103 before. Witness has admitted that he did not make any complaint to senior police officers or to the court about lifting of accused Vicky from his house. The witness deposed that he had good relations with the family of accused Vicky. Witness has denied that accused Vicky was not lifted from his house in his presence or that it is for this reason that he had not made any complaint to the senior police officers or to the court. Witness has denied that he is deposing falsely at the instance of family members of accused Vicky as they are his just neighbors and he is having good family relations with the family of accused Vicky.
FINDINGS:
(65) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel for the accused. I have also gone through the testimonies of various witnesses examined by the prosecution and the memorandum of arguments filed and my findings are as under:
Identity of the accused:
(66) The identity of both the accused Rohit Soni and Sanjay is disputed. They were not known to the victim previously nor they have been named in the FIR. In so far as the first statement of complainant to the police on the basis of which the FIR was State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 73 of 103 registered is concerned, he had only stated that both the assailants were wearing winter caps with their faces covered with the handkerchiefs but further in the same statement clarified that ".... in case if they come in front of him, he could identify them....". In the court, the victim Umesh has specifically identified both the accused persons namely Rohit Soni and Sanjay as the "Tall Boy" and "Short Boy". He has explained that soon after the incident initially when his statement was recorded, he was extremely shocked and nervous on account of which he told the police that the said boys had covered their faces with handkerchiefs though it was not the case but later on getting composed he told the police that he could identify both the assailants and thereafter in the court he has identified both the accused as the assailants. Here I may observe that initially in the part examination in chief of Umesh was recorded before the predecessor court on 11.2.2013 where he identified both the accused persons in the court as the slim tall boy (patla sa lamba sa) who according to him had entered the showroom wearing woolen jacket and "chhota sa" who was healthy and also entered the showroom. He has identified both the accused as "lamba sa" and "chhota sa". Later his examination in chief continued and completed before this court on 4.4.2013 and he explained that the short height boy by whom he identified as Sanjay and the tall boy as Rohit Soni whose name he came to know later.
State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 74 of 103 (67) Ld. Defence Counsel has vehemently argued that this identification is totally improvement made by the witness Umesh and he has identified the accused persons on the tutoring of the police since in his first statement to the police on the basis of which the present FIR was registered, these witness himself had stated that assailants had covered their faces with handkerchiefs and therefore under the given circumstances, there was no possibility of the witness having seen the assailants.
(68) Addl. PP for the State on the other hand has pointed out that the witness Umesh in the very same statement made to the police which is Ex.PW2/A had specifically told the police that he was in a position to identify the accused and hence under the given circumstances, the identification done by the victim Umesh cannot be doubted particularly in view of the fact that there was sufficient time and opportunity for him to have closely observed both the assailants who were standing right in front of him and had taken out the cash from the counter and also threatened him.
(69) I have considered the rival contentions and I find merits in the submissions made by Addl. PP. Firstly, because the victim was not known to the assailants prior to the incident and has no history of dispute or animosity with them and there is no reason why he would falsely implicate them. Secondly, the victim Umesh in his first statement made to the police on the basis of which the present State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 75 of 103 FIR was registered, had specifically stated that he was in a position to identify the assailants saying "...... jinko mai saamne aane par pehchan sakta hoon.....". Thirdly, though in his statement Umesh had initially stated that the assailants had their faces covered with handkerchief but later in the same statement told the Police that he could identify the assailants, he has in the Court offered a valid explanation for the said contradiction. He has in his cross examination explained that he had initially told the police that the boys had covered their faces with handkerchiefs and winter caps though they had their faces uncovered because he was extremely scared on account of the threats issued by the accused persons and hence when his statement was immediately recorded by the police soon after the incident, he deliberately being overcome by fear of the accused who had threatened him, told the police that the assailants had covered their faces with handkerchief but soon thereafter he regained his composure when his other colleagues also joined him and on becoming confident told the police that he could identify the assailants. Here I may observe that an ordinary person under the given circumstances who is threatened with a pistol and has faced the threats of death at close quarters, would also be similarly scared and nervous as was the complainant and hence when the victim has initially told the police that the faces were covered and also simultaneously told them that he could identify the assailants and State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 76 of 103 later explained to the court that it was out of fear that he initially told a lie to the police, I find his explanation convincing. In this regard reference is made to the observations made by the Hon'ble Apex Court in the case of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat reported in 1983 (CRI) GJX 0252 SC:AIR 1983 SC 7453 (1) and I find no reason to doubt the identification of the accused persons in the court by the victim Umesh. It is also evident that the accused themselves had refused to participate in the Judicial Test Identification Parade after which the victim had identified them when after their apprehension they were taken to the showroom.
The victim has been very consistent with regard to the identification of the accused persons and the description given by him in the FIR as regard the accused i.e. slim boy who was Rohit Soni and short boy as Sanjay actually matches with both the accused. Hence I hereby hold that the identity of the accused Rohit Soni @ Ajay and Sanjay @ Vicky as the persons who had robbed the victim Umesh of the cash amount of Rs.42,364/ and mobile phone make Samsung Galaxy Pop IMEI No. 357863/04/272471/6 after entering the showroom, stands proved and established.
Allegations against the accused persons:
(70) The case of the prosecution is that the victim Umesh was an employee of the showroom of American Tourister situated at 164, State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 77 of 103 Kapil Vihar, Pitam Pura, where he had been working as Store Manager and was on duty on the date of the incident i.e. on 15.12.2011 when as per the case of the prosecution, both the accused entered the showroom and committed the robbery of Rs.42,364/ kept in the cash counter along with the mobile phone make Samsung Galaxy Pop IMEI No. 357863/04/272471/6 belonging to Umesh after threatening him with a pistol. In this regard, the prosecution has placed its heavy reliance upon the testimony of Umesh Yadav the sole eye witness to the incident. However, before coming to the testimony of Umesh Yadav, I may observe that where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 78 of 103 independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy;
consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
(71) Applying the above settled law to the facts of present case, I may observe that the complainant Umesh is the employee of American Tourister showroom who was alone in the showroom at the time of the incident. The relevant portion of the testimony of victim Umesh (PW2) which was first recorded before the predecessor court on 11.2.2013 is reproduced as under:
"In the year, 2011, I was working as Store Incharge in the showroom of American Tourister, 164, Kapil Vihar, Pitam Pura, Delhi.
On 15.12.2011, at about 9:30 PM, I was alone in the store and it was time to shutter down the store and we kept the cash amount of the daily sale in the cash counter. At that time, I was having two mobile sets, one was Samsung Galaxy and the other was older one and both the said State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 79 of 103 mobile sets were kept near the keyboard of cash counter. At that time, I was busy in the system and in the meantime, one boy who was "Patla Sa Lamba Sa", entered the store, who was wearing a woolen jacket and was a cap on his head and behind the said boy, another boy, "Chhota Sa"
and healthy, also entered the store. Both the said boys are present in the court today and the witness correctly identified them by pointing out i.e. "Lamba Sa" and other boy "Chhota sa."
(72) The examination in chief of this witness could not be completed on 11.2.2013 and was thereafter deferred and completed on 4.4.2013. The relevant portion of his examination in chief dated 4.4.2013 is also reproduced as under:
"I am residing at the aforementioned address for the last more than ten years. On the date of the incident initially the short height boy whose name I later on came to know was Sanjay (present in the court and correctly identified by the witness) entered the shop at about 9:30 PM when I was closing the shop and came and stood near my chair on the side of the cash counter. In the meanwhile the other boy who followed him whose name later on I came to know Rohit came and stood in front of the cash counter. The boy who was standing in front of the cash counter i.e. Rohit (present in the court and correctly identified by the witness) took the pistol from the pocket of his jacket and pointed the same on me from the front side and said "jo bhi State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 80 of 103 hai, woh jaldi se nikal do". The cash counter at that time was locked and the key of the same was under the dash board. I took out the key and opened the cash counter and as soon as I did that, the second boy who was standing adjoining the cash counter i.e. Sanjay immediately picked up the currency notes which were tied with the rubber band. On this Rohit told me that there were more currency notes "yahi nahi ismei aur bhi hai woh bhi nikal". I told him there was no other cash and this was the only cash in the counter. My mobile make SAMSUNG Galaxy Pop in which I was using a SIM which I had recently taken whose number I do not recollect at present which was also kept on the cash counter which Sanjay picked up while leaving. While leaving the two boys threatened me and asked me to stay where I was and not to move "Yahi bethe rehna aur hilna mat". I saw that these boys then went out and ran away on the bike which was parked outside on the right side. After these boys had left, I came out of the shop but I could not find anybody so I came back inside the shop and made a call on 100 number from the land line phone installed in the shop. After about 1015 minutes the police came at the spot and I informed them of all the details of what had happened. When the police came, I was extremely scared and threatened because of the threat of the accused so I did not gave the complete details to the police. My statement was State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 81 of 103 recorded on 15.12.2011 which is Ex.PW2/A bearing my signatures at point A. Again on 17.12.2011 my detailed statement was recorded by the IO when I provided him all the details. The total amount of cash robbed by the accused was Rs 42 thousand, three hundred sixty four. The site plan was prepared by the IO on my pointing out which is Ex.PW2/B. On 20.03.2012 both the accused were brought to the shop and I identified both of them i.e. Rohit and Sanjay as the persons who had committed robbery in the shop. I had also handed over the purchase receipt of my mobile phone to the IO. My statement was thereafter recorded by the IO.
I handed over the cash memo of my mobile phone to the IO on 03.05.2012 with mobile phone was robbed on 15.12.2011. The said cash memo is Ex.PW2/C which was seized by the IO vide Ex.PW2/D bearing my signatures at point A. At this stage, Ld. APP for the state, seeks permission to put leading questions to the witness on the aspect of mobile phone number.
Heard, permission granted.
It is correct that I had given the SIM number which I was using at the time of the incident to the police in my statement made to them, which number is 7503087799.
I can identify the case property i.e. my stolen mobile phone and the pistol if shown to me.
At this stage, MHC (M) has produced one mobile phone make SAMSUNG GALAXY in unsealed condition and same is shown to the witness who has identified the same as the one State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 82 of 103 belonging to him bearing IMEI No. 357863/04/272471/6 and was robbed from him. The same is EX P1.
At this stage, MHC(M) has produced one sealed pullanda duly sealed with the seal of PSO(BALL)CFSL N Delhi. Same is opened after breaking the seal and one country made pistol is taking out and shown to the witness and witness says that the weapon shown to him by the accused appeared to be similar to this country made pistol. The said pistol is EX P2."
(73) This witness has been cross examined at length wherein he has explained that there is no CCTV camera installed in the showroom. He has stated that the CCTV camera is installed in the adjoining jewellery shop but has explained that it is installed in a manner that it focuses only on the person entering and leaving the shop but not on the persons walking on the road. He has admitted that they open the shop at about 10:30 AM and closed the shop at about 9:30 PM and has explained that the entire area is commercial. He has further explained that most of the shops start closing by 9:00 PM and other shops also closed by 9:30 PM. He has also admitted that security guard is posted in the adjoining jewellery shop. He has stated that he did not raise any alarm but has denied the suggestion that there was a police picket and regular barricading done near his shop. He has also explained that the police had not shown to him the photographs of the suspects or got prepared any sketch of the State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 83 of 103 suspects from him. He has stated that there are two to three persons employed namely Arun Sagar and Shiv Sahay in the showroom and has explained that they were not present at the time of incident. He has further explained that Arun Sagar had been sent to the other shop at Rohini Sector 8 at about 7 to 7:30 PM while the other employee Shiv Sahay who used to come from Trans Yamuna had left at around 9:30 PM. He has also stated that after the incident he had informed his boss / employer. He has further stated that the amount Rs. 42,364/ was the amount of sale which had taken place for two days. Further, in his cross examination, the witness Umesh has admitted that large number of police officials had come to the spot on the date of incident and thereafter they took him to the police station where he stayed for almost two hours when his statement was also recorded by the police. According to Umesh Yadav no paper work was done by the police at the spot and also stated that in his presence the statement of his coworkers namely Arun Sagar and Shiv Sahay were not recorded by the police. He has denied that no robbery had ever taken place in the showroom and the entire story has been created only to grab the cash amount belonging to the showroom. He has also denied that the mobile phone which he alleged to have been stolen from him and recovered from the accused, was in fact planted. (74) Apart from the victim Umesh Yadav, the prosecution has also examined one Ranjeet Singh (PW4) who has proved the sale of State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 84 of 103 the mobile phone make Samsung Galaxy to the customer Umesh Yadav (wrongly typed as Ramesh) bearing the IMEI number whose sticker was pasted on the receipt. The bill is Ex.PW2/C. (75) This witness has been exhaustively cross examined. Initially the Ld. Defence Counsel has raised an objection with regard to the exhibition of this document (Ex.PW2/C) on the ground that the copy is not legible which objection was found to be devoid of merits and this court confirmed that the receipt numbers of the bills both prior and later to the said bill in question were in proper sequence i.e. the receipt No. 254 was dated 17.09.2011 and the receipt subsequent thereof i.e. 256 was dated 19.09.2011 upwards, ruling out the possibility of fabrication of this record. Here I may observe that in the crossexamination, the Ld. Defence Counsel has pointed that there were many of the receipts on which stickers of the mobile phone sold were not pasted on the duplicate receipts, on which a valid explanation is forthcoming and the witness has explained that it is only in cases where there are two receipts are available on the box of the mobile phone, one is pasted on the duplicate receipt, which I find in the proper procedure because not all makes and models of mobile phones have the stickers pasted on the box in duplicate. The witness has confirmed that many of the duplicate receipts do not have a sticker pasted and confirm the statement made by him. State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 85 of 103 (76) Addl. PP for the State has further placed his reliance upon the testimony of Vikas Chikara (PW5) the Manager of the Showroom who has confirmed the employment of the victim Umesh Yadav as the Store Manager and the fact that he was on duty on the day of incident and also the cash balance present in the cash box of the showroom when the same was robbed by the assailants on 15.2.2011. The certificate with regard to the employment and posting and confirming the presence of Umesh in the showroom at the time of incident and the cash balance report are Ex.PW5/A and Ex.PW5/B. This witness has also been exhaustively cross examined by Ld. Defence Counsel and he has confirmed the opening and closing balance of the showroom at 10 AM to 9 PM respectively and has explained that some time the shop actually closes later as large number of shoppers keep frequenting the area. He has further confirms in respect of the report on transaction of cash balance he had given the bills from the system maintained in their office and has also explained that as per normal practice, some transaction takes place in cash and some in debit cards which they enter into daily transactions.
(77) A joint reading of the testimonies of Umesh and Vikas confirms, firstly that Umesh was working as Store Manager with the Showroom and on the date of incident i.e. 15.12.2011, he was present in the showroom situated at 164, Kapil Vihar, Pitampura and was in State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 86 of 103 the process of closing the showroom while there was no other employee in the showroom.
(78) Secondly, cash transaction report Ex.PW5/B prepared on the basis of official record again confirms that on 15.12.2011 the store opening amount was Rs.19,590/ and sale amount was Rs. 22,774/ and total cash amount of Rs.42,364/ was kept in the cash box of the showroom. The arguments of Ld. Defence Counsel that the entire amount had been misappropriated by Umesh Yadav and shown that the same has been robbed from him, does not inspire confidence. Had that been the case, I am sure that some other employee including the owner would have expressed their suspicion on him (Umesh Yadav), which is not the case. The Ld. Defence Counsel has argued that the entire record has been fabricated to create the incident of robbery whereas on the other hand it is alleged that Umesh himself had committed the theft, which are two contradictory facts. In case Umesh Yadav would have committed the theft, his other coworkers would not have fabricated the records for him and they would have rather preferred to make direct complaint to the police against him rather than concocting this incident of robbery, which is not the case.
(79) Thirdly along with the cash amount, the mobile phone make Samsung Galaxy Pop was also stolen, though the complainant has not mentioned the IMEI number and the SIM which he was using State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 87 of 103 on the same and has explained that he had recently purchased the said mobile phone yet the receipt Ex.PW2/C duly confirms that the said mobile phone had been sold to Umesh Yadav on 17.9.2011 and was bearing IMEI No. 357863/04/272471/6 which had been sold to him for Rs.8,300/ vide receipt No. 255. It is vehemently argued by the Ld. Defence Counsel that the said receipt does not bear the signatures of Umesh Yadav and hence does not prove the same. This argument does not inspire confidence because there is no provision on the said receipt whereby the signatures of purchaser is also required to be taken on the same and hence the question of the purchaser signing the same does not arise. Signatures of the person selling the mobile phone is duly present on the receipt and name of the purchase finds mention along with the IMEI details. In this background, there is no reason to disbelieve the said receipt, more so when the original bill book has been produced in the court by the witness. The argument of Ld. Defence Counsel that this receipt had been prepared at a later stage, also does not inspire confidence in view of the specific court observations made with regard to the immediately preceding and succeeding receipts in question which are found to be in proper sequence which would not be the case if it was a fabrication. Hence, the theory propounded by defence of the incident being concocted, is devoid of merits.
State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 88 of 103 (80) Fourthly it is also argued by the Ld. Defence Counsel that the behaviour and conduct of Umesh Yadav in not raising any alarm or seeking help from any person including the guards deployed in the adjoining shops is not above suspicion. She has argued that any other person in position of Umesh Yadav, would have screamed for help and raise an alarm and hence it is this behaviour which casts a serious doubt on the version given by Umesh Yadav. I have considered the submissions made before me and I may observe that different people react differently in the given set of circumstances and not every person would react similarly. It is clearly possible that while under a circumstances, a person may raise a hue and cry or an alarm, whereas another person in similar circumstances may not raise an alarm but only make a call to the police as the victim in the present case had done. [In this regard reference is being made in the case of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat reported in 1983 (CRI) GJX 0252 SC:AIR 1983 SC 7453 (1)]. (81) Lastly, as already discussed herein above, the victim did not know the assailants at any point of time prior to the incident and has no history of animosity with them. He has also explained the reasons how out of fear initially when he made first statement to the police he had wrongly told them that the assailants had covered their faces with handkerchiefs but had explained to the court that they were actually with uncovered faces and therefore he immediately State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 89 of 103 told the Investigating Officer that he could identify them and hence he identified the accused Rohit Soni and Sanjay as tall boy and short boy with the description which was matching and explained that initially it was the short boy i.e. the accused Sanjay who entered the showroom at about 9:30 PM and stood near his chair on the side of the cash counter and it was the tall boy i.e. the accused Rohit Soni who entered the showroom later and and stood in front of the cash counter and took out a pistol from his pocket of his jacekt and pointed the same on him (Umesh) from front side and said "jo bhi hai, who jaldi se nikal do" after which Sanjay immediately picked up the currency notes after he (witness) opened the counter and he (Sanjay) also removed the mobile phone of Umesh make Sumsung Galaxy Pop which was kept on the cash counter and thereafter threatened him while leaving saying "yahin bathe rehna aur hilna mat". The victim Umesh Yadav is very categorical and has stated that when these boys went outside the showroom and ran away on a bike which was parked outside.
(82) The sequence of evens when they emerged, are natural and probable and I find the testimony of the witness Umesh Yadav trustworthy and truthful which finds independent corroboration from the other circumstantial evidence brought on record and I find the version given by the victim Umesh Yadav truthful, natural, probable and authentic. Hence under the given circumstances I hereby hold State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 90 of 103 that the prosecution has been able to prove the manner in which the incident of robbery had taken placed wherein cash amount of Rs. 42,364/ along with mobile phone make Samsung Galaxy Pop, SIM No. 7503087799 bearing IMEI No. 357863/04/272471/6 were robbed which mobile phone Ex.P1 according to the prosecution case was got recovered by the accused Sanjay and has been duly identified by the victim Umesh Yadav in the court and also country made pistol Ex.P2 which according to Umesh Yadav was the same which was shown to him by the accused Rohit at the time of robbery. Arrest of the Accused and Recovery of the stolen Mobile Phone:
(83) Case of the prosecution is that during the course of investigations on 26.02.2012, a secret information was received by the officials of Special Staff (South District) that four to five assailants would be coming at Triveni Malviya Nagar near MCD office and they were going to commit robberies in the showroom.
Pursuant to the said secret information, a raiding party was constituted consisting of SI Jeet Singh, SI Gyanender, ASI Ashok, ASI Ram Kishan, HC Ashok, HC Vijay Hooda, HC Shyamveer, Ct. Amreesh, Ct. Jasbir and the said raiding party reached at Triveni MCD office, Malviya Nagar and on the way SI Jeet Singh asked 45 public persons to join police raiding party but none agreed and left the place without informing their names and addresses. Thereafter, State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 91 of 103 on the pointing out of the secret informer, three persons namely Narender, Virender and Rajesh were apprehended who upon interrogation disclosed that two of their other associates also coming near the ganda nala pullia, Chirag Delhi village. Thereafter, HC Surender, SI Gyanender, HC Vijay Hooda, HC Ashok, Ct. Yashbir reached at above said pullia and again asked four to five passerbyes to join the police proceedings but none agreed and left the place without disclosing their names and addresses and thereafter two persons sitting on a motorcycle came from Outer Ring Road area and at the instance of secret informer both persons on the motorcycle were apprehended who on inquiry disclosed their names as Sanjay @ Vikky and Rohit Soni @ Ajay, the accused before this court. On the formal search of the accused Sanjay @ Vikky, one loaded katta and one more live cartridge recovered from his possession and on the formal search of accused Rohit Soni one country made katta and cartridges were recovered. Thereafter, separate FIRs under Arms Act were registered at Police Station Malviya Nagar. On detailed interrogation, both Rohit Soni and Sanjay @ Vikky disclosed their involved in the present case FIR No. 483/11 Police Station Subhash Palace. The accused Sanjay also disclosed that the robbed mobile phone was kept by him at his house pursuant to which he led the police party to his house at A342, Jawalapuri, Nangloi from where he got recovered four mobile phones which were taken into State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 92 of 103 possession vide memo Ex.PW6/D and out of those mobiles phones, one Samsung Galaxy of black color GTS 5570 was the case property of present case. Thereafter, information was also sent to the SHO Police Station Subhash Place and the Investigating Officer of the present case was handed over the documents including the seizure memo of the mobile phone make Samsung Galaxy robed in the present case after which the accused Rohit and Sanjay were formally arrested in the present case also. The case property i.e. mobile phone make Samsung Galaxy having IMEI No. 357863/04/272471/6 (Ex.P1) got recovered by the accused Sanjay was found to be tallying with the stolen mobile of victim who had purchased the same vide receipt Ex.PW2/C. In this regard the prosecution has placed its reliance on the testimonies of HC Vijay Kumar (PW7), HC Surender (PW11) and Ct. Ashok (PW13).
(84) The defence of the accused is that they were lifted from their respective houses by the police and falsely implicated in this case as well as the other cases only to work out the blind cases. They have stated that they have already been acquitted in the case of Malviya Nagar and have also admitted that they have refused to participate in the Judicial Test Identification Parade after their apprehension in the case of Police Station Malviya Nagar. In his statement under Section 313 Cr.PC, the accused Sanjay is unable to explain the possession of the mobile phone Ex.P1 which was State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 93 of 103 recovered from his house and had been robbed from the victim Umesh in the month of December 2011, which Umesh has duly identified. It was for the accused Sanjay to have explained the possession of the said mobile phone which he is unable to do. (85) In so far as the defence witnesses namely Dalbir Singh and Bimla are concerned, they do not appear to be reliable and the accused have not been able to controvert the testimonies of the various police officials with regard to their apprehension and arrest of in the present case. Also, on mere because they have been acquitted in the Malviya Nagar case, does not imply perse that they have been falsely implicated. Rather it only shows that the prosecution has not been able to prove their case before the competent court. There is no findings by the competent court that their apprehension and arrest was not in the manner as alleged by these police witnesses namely HC Surender (PW11) and HC Ashok (PW13). In this background, I hereby hold that the formal arrest of the accused in the present case has been duly proved by Ct. Ganga Singh (PW8), Ct. Mukesh Kumar (PW9) and SI Ajit Singh (PW10) who have also proved the identification of the accused persons by the complainant Umesh Yadav during police custody remand when they were taken to the showroom where the robbery was committed. (86) Ld. Defence Counsel has also argued that no public witness was joined by the Investigating Officer despite opportunity State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 94 of 103 particularly during the proceedings regarding recovery of the mobile phone and hence the recovery becomes doubtful. In this regard, 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.
(87) 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 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.
(88) Moreover, there is no reason to disbelieve testimony of police officials regarding recovery of mobile phone at the instance of accused Sanjay @ Vicky. Their testimony cannot be rejected merely State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 95 of 103 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 Khima Vs. 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. These two authorities were also relied upon by Hon'ble High Court in Aslam & Ors (Mohd.) Vs. State, 2010 III AD (Delhi) 133.
(89) Applying the settled principles of law as aforesaid to the facts of the present case, it is writ large that both the accused are habitual offenders with large number of criminal cases pending against them and under the given circumstances it is only natural that the public persons would be slow to involve themselves in the criminal proceedings relating to the accused. Further, it is borne out from the testimonies of the officers investigating FIR No.64/2012 and FIR No. 65/2012 both of Police Station Malviya Nagar in which the arrest of both the accused was made and they disclosed their involvement in the present case pursuant to which the accused Sanjay led the police party to his residence and got the recovery of the State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 96 of 103 mobile phone belonging to the complainant of the present case effected, that they had made attempts to join public persons and both SI Jeet Singh and SI Gyanender had asked fourfive public persons to join the police party but none agreed. This fact has also been confirmed by the other members of the police team. Here, I may observe that merely because the public witnesses have not been joined cannot be the sole ground for disbelieving the recovery of the stolen mobile phone. The Investigating Officer in the cases relating to FIR No.64/2012 and 65/2012 who first apprehended the accused persons was not even aware of the facts of the present case and till it was so disclosed by the accused that they were involved in the robbery in the present case this fact was not known to anybody. Further, it was the accused Sanjay who pursuant to his disclosure statement actually got the stolen mobile phone recovered from his house (along with three other mobile sets which are not relevant to the present case). This is disclosure of material fact and admissible in evidence and the recovery of the stolen mobile at the instance of Sanjay coupled with the identification of the accused Rohit and Sanjay by the victim in the present case and the matching of the description of both the accused Rohit and Sanjay with the description first given by the victim Umesh Yadav to the police, leaves no reason to doubt the version put forth by the prosecution.
State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 97 of 103 (90) In view of the above discussions, the accused Rohit Soni @ Ajay is liable for the offence under Section 392 read with Section 397 Indian Penal Code the complainant Umesh Yadav having identified him as the boy who had taken out the desi katta (Ex.P2) which he showed to him while threatening him whereas the accused Sanjay Kumar @ Vicky is liable only for the offence under Section 392 Indian Penal Code. In so far as the charge under Section 411 IPC against the accused Sanjay @ Vicky is concerned, since he has been identified as the same persons who had committed robbery upon the complainant/ victim Umesh Yadav and therefore under the given circumstances technically the provisions of Section 411 Indian Penal Code is not separately made out as the ingredients of Section 411 Indian Penal Code is covered within the definition of offence of Robbery as provided under Section 390 Indian Penal Code.
FINAL CONCLUSION:
(91) In the case of Sharad Birdhichand SardavsState 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:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 98 of 103 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.
(92) Applying the above principles of law to the facts of 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. The identity of the accused Rohit Soni @ Ajay and Sanjay Kumar @ Vicky stands established and proved. The prosecution has been able to successfully establish :
➢ That on 15.12.2011 the victim Umesh Yadav was working as the Store Manager at American Tourister Showroom at 164, Kapil Vihar, Pitam Pura and was alone in the showroom.
➢ That at about 9:30 PM the victim Umesh Yadav after State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 99 of 103 counting the cash amount of daily sale to the tune of Rs. 42,364/, kept the same in the cash box and was preparing to close the showroom.
➢ That suddenly the accused Sanjay @ Vicky (the short person) entered the showroom and stood near the cash counter followed by the accused Rohit Soni who pulled out a pistol and pointed the same towards Umesh Yadav and asked him to hand over whatever he had. ➢ That being scared, Umesh Yadav handed over the key of the cash box to accused Sanjay who opened the cash counter and removed the entire cash amount of Rs. 42,364/ and also took the mobile phone of Umesh Yadav i.e. Samsung Galaxy Pop bearing SIM No.7503087799 and IMEI No. 357863/04/272471/6.
➢ That after committing the robbery, both the accused Rohit Soni and Sanjay again threatened Umesh not to raise an alarm and thereafter they ran away in the motorcycle which was parked outside the showroom (motorcycle recovered at the instance of accused Rohit Soni but not identified by the victim Umesh as the same in which the accused had fled).
➢ That thereafter, the victim Umesh Yadav made a call at 100 number and police reached to the spot and his State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 100 of 103 statement was recorded.
➢ That initially being terrified and scared of the threats extended to him, the victim Umesh did not give a complete information to the police regarding the identity details of the accused and wrongly told them that the assailants had handkerchief tied on their faces despite the fact that it was not so. However, as soon as he was composed, he told the police that he could identify the accused and this fact also finds a mention in his first statement to the police where he stated that he could identify the assailants.
➢ That on 26.02.2012 pursuant to a secret information received by the officials of Special Staff (South District), the accused Rohit Soni and Sanjay were apprehended near the ganda nala pullia, Chirag Delhi village and they disclosed their involvement in the present case.
➢ That on the formal search of the accused Sanjay @ Vikky, one loaded katta and one more live cartridge recovered from his possession.
➢ That on the formal search of accused Rohit Soni, one country made katta and cartridges were recovered from his possession.
➢ That the accused Sanjay got recovered the robbed mobile State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 101 of 103 phone make Samsung Galaxy Pop with SIM No. 7503087799 and IMEI No. 357863/04/272471/6 from his house at A342, Jawalapuri, Nangloi.
➢ That the formal arrest of the accused Rohit and Sanjay has been duly proved by the police witnesses.
➢ That case property i.e. mobile phone make Samsung Galaxy having IMEI No. 357863/04/272471/6 (Ex.P1) got recovered by the accused Sanjay has been duly identified by the victim Umesh Yadav as the same which was robbed in the incident.
➢ That the country made pistol (Ex.P2) recovered from the possession of accused Rohit Soni has been duly identified by the victim Umesh Yadav as the same as shown to him by the accused at the time of committing the robbery. (93) 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 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.
State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 102 of 103 (94) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, MLCs, 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 circumstantial evidence and the witness of the prosecution have been able to built up a continuous link.
(95) In this background the accused Rohit Soni @ Ajay is hereby held guilty for the offence under Section 392 read with Section 397 Indian Penal Code. In so far as the accused Sanjay Kumar @ Vicky is concerned, he is hereby acquitted of the charge under Section 397 Indian Penal Code but he is hereby held guilty for the offence under Section 392 Indian Penal Code. (96) Be listed for arguments on sentence on 24.3.2014.
Announced in the open Court (Dr. KAMINI LAU) Dated: 19.03.2014 ASJ (NW)II: ROHINI State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 103 of 103 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 69/2013 Unique Case ID: 02404R0163862012 State Vs. (1) Rohit Soni @ Ajay S/o Suresh Chand R/o H. No. A341, Block No. 4. Jwalapuri, Nangloi Depot, Delhi. (Convicted) (2) Sanjay Kumar @ Vicky S/o Mahender Kumar R/o A342, Block No. 4. Jwalapuri, Nangloi Depot, Delhi. (Convicted) FIR No. : 483/2011 Police Station : Subhash Place Under Section : 392/397/411/34 Indian Penal Code Date of conviction: 19.3.2014 Arguments concluded on: 24.3.2014 Date of Sentence: 28.3.2014 APPEARANCE: Present: Sh. Tofeeq Ahmed, Ld. Addl. Public Prosecutor for the State.
Both the convicts in Judicial Custody with DLSA Counsel State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 104 of 103 Ms. Neelam Singh.
ORDER ON SENTENCE:
As per the allegations on 15.12.2011 at about 9:30 PM at Shop No. 164, Kapil Vihar, Pitampura, Delhi both the accused Rohit Soni @ Ajay and Sanjay @ Vicky in furtherance of their common intention entered the shop of complainant Umesh Yadav and robbed cash amount of Rs.42,364/ from the cash counter along with one Samsung Galaxy Mobile bearing phone No. 7503087799. It is further alleged that during the commission of robbery, the accused Rohit Soni had used a deadly weapon i.e. pistol which he showed to the complainant. It is also alleged that the accused Sanjay Kumar @ Vicky got recovered the robbed mobile phone make Samsung Galaxy from his residence which mobile was robbed by them from the complainant Umesh Yadav.
On the basis of the testimonies of the various prosecution witnesses particularly the victim/ complainant Umesh Yadav and also on the basis of other evidence on record, this Court vide a detail judgment dated 19.3.2014 observed that the prosecution has been able to prove and establish that on 15.12.2011 the victim Umesh Yadav was working as the Store Manager at American Tourister Showroom at 164, Kapil Vihar, Pitam Pura, and was alone in the showroom. It has also been established that at about 9:30 PM the victim Umesh Yadav after counting the cash amount of daily sale to State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 105 of 103 the tune of Rs.42,364/, kept the same in the cash box and was preparing to close the showroom; that suddenly the accused Sanjay @ Vicky (the short person) entered the showroom and stood near the cash counter followed by the accused Rohit Soni who pulled out a pistol and pointed the same towards Umesh Yadav and asked him to hand over whatever he had; that being scared Umesh Yadav handed over the key of the cash box to accused Sanjay who opened the cash counter and removed the entire cash amount of Rs.42,364/ and also took the mobile phone of Umesh Yadav i.e. Samsung Galaxy Pop bearing SIM No.7503087799 and IMEI No. 357863/04/272471/6; that after committing the robbery, both the accused Rohit Soni and Sanjay again threatened Umesh not to raise an alarm and thereafter they ran away in the motorcycle which was parked outside the showroom; that thereafter, the victim Umesh Yadav made a call at 100 number and police reached to the spot and his statement was recorded.
This Court has further observed that the prosecution has been able to establish that initially being terrified and scared of the threats extended to him, the victim Umesh did not give a complete and correct information to the police regarding the identity details of the accused and wrongly told them that the assailants had handkerchief tied on their faces despite the fact that it was not so and as soon as he was composed, he told the police that he could identify State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 106 of 103 the accused and this fact also finds a mention in his first statement to the police on the basis of which the FIR was registered where he stated that he could identify the assailants; that on 26.02.2012 pursuant to a secret information received by the officials of Special Staff (South District), the accused Rohit Soni and Sanjay were apprehended near the ganda nala pullia, Chirag Delhi village and they disclosed their involvement in the present case; that on the formal search of the accused Sanjay @ Vikky, one loaded katta and one more live cartridge recovered from his possession; that on the formal search of accused Rohit Soni, one country made katta and cartridges were recovered from his possession; that the accused Sanjay got recovered the robbed mobile phone make Samsung Galaxy Pop with SIM No.7503087799 and IMEI No. 357863/04/272471/6 from his house at A342, Jawalapuri, Nangloi; that the formal arrest of the accused Rohit and Sanjay has been duly proved by the police witnesses.
It has also been observed by this Court that the mobile phone make Samsung Galaxy having IMEI No. 357863/04/272471/6 got recovered by the accused Sanjay has been duly identified by the victim Umesh Yadav as the same which was robbed in the incident (whose IMEI number also tallies with the number on the purchase receipt) and the country made pistol recovered from the possession of accused Rohit Soni has been duly identified by the victim Umesh State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 107 of 103 Yadav as the same as shown to him by the accused at the time of committing the robbery.
This being the background, the accused Rohit Soni @ Ajay has been held guilty for the offence under Section 392 read with Section 397 Indian Penal Code and the accused Sanjay Kumar @ Vicky has been held guilty for the offence under Section 392 Indian Penal Code, for which they have been accordingly convicted. However the accused Sankay @ Vicky has been acquitted of the charge under Section 397 IPC.
Heard arguments on the point of sentence. The convict Rohit Soni @ Ajay is stated to be a young boy aged about 27 years, having a family comprising of aged parents, two elder brothers and one elder sister. He is 9th class pass and was selling bags by putting a rehri. The convict Sanjay @ Vicky is stated to be a young boy of 24 years having a family comprising of aged parents, one elder & one younger brother and one younger sister. He is totally illiterate and was selling toys by putting a rehri.
It has been vehemently argued by the Ld. Amicus Curiae that both the convicts are young boys and considering their family background, a lenient view be taken against them. On the other hand the Ld. Addl. PP for the State has prayed that a stern view be taken against the convicts keeping in view the allegations involved. He has State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 108 of 103 pointed out that the convict Rohit Soni @ Ajay is involved in as many as Nine cases details of which are as under:
Sr. FIR Police Station Under Section Status of the case No. No.
1. 451/201 Maurya 380 IPC Pending trial 1 Enclave
2. 32/2012 Preet Vihar 392/34 IPC Pending trial
3. 37/2012 Preet Vihar 379 IPC Pending trial
4. 23/2012 Uttam Nagar 380 IPC Pending investigations
5. 28/2012 Gurgaon City 392/34 IPC Not known
6. 96/2012 Gurgaon City 392/34 IPC & Not known 25/ 54/59 of Arms Act
7. 9/2012 Neb Sarai 392/34 IPC Released
8. 64/2012 Malviya 25/54/59 of Pending trial Nagar Arms Act
9. 57/2012 Malviya 392/34 IPC Pending trial Nagar In so far as the convict Sanjay @ Vicky is concerned, the Ld. Addl. PP has pointed out that he is involved in as many as Eight other cases details of which are as under:
Sr. FIR Police Station Under Section Status of the case No. No. State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 109 of 103
1. 451/201 Maurya 380 IPC Pending trial 1 Enclave
2. 9/2012 Neb Sarai 392/34 IPC Released
3. 32/2012 Preet Vihar 392/34 IPC Pending trial
4. 28/2012 Gurgaon City 392/34 IPC Not Known
5. 96/2012 Gurgaon City 392/34 IPC & Not Known 25/ 54/59 of Arms Act
6. 65/2012 Malviya 25/54/59 of Pending trial Nagar Arms Act
7. 57/2012 Malviya 392/34 IPC Pending trial Nagar
8. 23/2012 Uttam Nagar 380 IPC Pending trial Ld. Addl. has argued that no leniency should be shown to the convicts keeping in view their above criminal background.
I have considered the rival contentions. In the recent past Delhi is experiencing a spurt and rise in the incidents of snatching, robbery, dacoity, murder and other kinds of crime. There has been a 43.6 percent increase in Delhi's crime graph in 2013 over 2012. A staggering 73,958 cases were registered under the Indian Penal Code in 2013 up from 51,479 in the previous year.
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. State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 110 of 103 Instances of young persons getting involved in criminal activities of robbing innocent persons by putting them under threat of death, are also on rise. Criminals are unhesitatingly and indiscriminately using dangerous firearms on helpless victims who may or not offer any resistance thereby spreading terror in the society and adversely affecting social order and the faith of people in the system. 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 warranting public abhorrence of the crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is desirability to keep the offender out of circulation.
There was no previous animosity between the convicts and the victim Umesh Pandey and the intent was solely monetary gain. Undue sympathy, under these circumstances, to impose inadequate sentence upon the convicts who are habitual and repeat offenders would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 111 of 103 endure under such serious threats. It is, therefore, the duty of this court to award a sentence having regard to the nature of the offence and the manner in which it was executed or committed. (Ref: Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463).
The convict Rohit Soni @ Ajay is involved in as many as Nine criminal cases whereas the convict Sanjay @ Vicky is involved in as many as Eight other criminal cases all of similar nature i.e. Theft, Robbery etc. The manner in which the offence has been committed coupled with their track record shows that both the convicts are desperadoes who have no respect for law and legal process of this Country and they have an impression that perhaps the Legal System of this Country is incompetent to hold them back for their illegal activities. No doubt, the Indian Legal System particularly the Criminal Justice Mechanism has certain practical failings which is highly disturbing and to some extent appears to have shaken the faith of the people resulting into emboldening of the wrong doers but still I hold that things are not as bad as they may appear.
Keeping in view the above criminal background of the convicts and the desirability and need to keep the convicts out of circulation, I award the following sentences to the convicts:
1. The convict Rohit Soni @ Ajay is sentenced to Rigorous State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 112 of 103 Imprisonment for a period of Seven (7) Years (maximum punishment provided for the offence under Section 397 IPC) and fine to the tune of Rs.5,000/ (Rs. Five Thousand) for the offence under Section 392 read with Section 397 Indian Penal Code. In default of payment of fine the convicts shall further undergo Simple Imprisonment for a period of fifteen days.
2. The convict Sanjay @ Vicky is sentenced to Rigorous Imprisonment for a period of Five (5) Years and fine to the tune of Rs.5,000/ (Rs. Five Thousand) for the offence under Section 392 Indian Penal Code. In default of payment of fine the convicts shall further undergo Simple Imprisonment for a period of fifteen days.
Benefit of Section 428 Cr.P.C. shall be given to both the convicts for the period already undergone by them, as per rules.
It is clarified that the sentence in the present FIR shall run CONSECUTIVELY to the sentences awarded to the convicts in other case.
The convicts have been informed that they have a right to prefer an appeal against the judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 113 of 103 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.
One copy of the judgment and order on sentence be given to both the convicts free of costs and one copy of order on sentence be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 28.3.2014 ASJ (NW)II: ROHINI
State Vs. Rohit Soni @ Ajay & Anr., FIR No. 483/11 PS Subhash Place Page 114 of 103