State vs . Rajesh Kushwaha Etc. on 10 February, 2012

[Cites 17, Cited by 0]

Delhi District Court

State vs . Rajesh Kushwaha Etc. on 10 February, 2012

                                      State Vs. Rajesh Kushwaha  etc.

         IN THE COURT OF SHRI GURVINDER PAL SINGH 
         ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
                      SAKET COURTS, NEW DELHI


Session Case No. 23/2011
ID No. 02403R0094352009



State            Vs.          :   1. Rajesh Kushwaha  
                                  S/o Sh. Jai Parkash
                                  R/o H.No. 251, Gali No. 7, 
                                  BlockA, Rahul Vihar, 
                                  Ghaziabad, U.P 

                                  2. Sunil Kumar Gupta 
                                  @ Shammi
                                  S/o  Sh. S.C Gupta,
                                  R/o RC120+722, Bharat Nagar,
                                  Khoda Colony, Ghaziabad, U.P

                                  3. Uma Shanker @ Shanker
                                  S/o Sh Ram Dev
                                  R/o 29/285, Trilok Puri, 
                                  New Delhi

FIR No. 81/2007
P.S. Sarojini Nagar
U/s 392/397/170/120B/411IPC

SC No. 23/2011                                                   1/69
                                                   State Vs. Rajesh Kushwaha  etc.

Date of Institution           :              04/05/2007

Date when arguments 
were heard                    :              21/01/2012 & 06/02/2012

Date of Judgment              :              10/02/2012

JUDGMENT

BRIEF FACTS:

Adumbrated in brief the facts of the prosecution case is as follows:

At 10.50 am on 13/2/07 information was received at police station Sarojini Nagar and recorded in DD No. 16A by wireless operator that from house no. I509, Sarojini Nagar, New Delhi, Vijay Kumar Aggarwal has informed that at his house four persons had come, one was wearing police uniform and three were in civil clothes; three were having revolver and one person was having knife and after advancing threat at their house they had taken away golden chain and Rs 5,000/. SI Narender Kumar (PW23) departed from police station Sarojini Nagar vide DD No. 17A, copy Ex PW11/C, on 13/2/07 and reached at the aforesaid house, met HC Suresh and Ct Sish Ram (PW8) as well as first informant/complainant Vijay Kumar SC No. 23/2011 2/69 State Vs. Rajesh Kushwaha etc. Aggarwal. First informant/complainant Vijay Kumar Aggarwal (now deceased) gave statement Ex PW5/A that he was resident of I509, Sarojini Nagar, New Delhi and was working as General Manager in S.V.S Prop. Mart Pvt. Ltd. At 7.45 on 13/02/2007 am he was sleeping at his house. Someone knocked at the door of the house. Kamlesh Aggarwal(PW5), wife of Vijay Kumar Aggarwal told him that someone was knocking the door, calling his name. Vijay Kumar Aggarwal opened the door. At the door two persons of age about 2530 years were standing, of which one person was wearing police uniform who told that they had come from police station Malviya Nagar, there was complaint of their vehicle, upon which Vijay Kumar Aggarwal called them inside the room, asked them to sit and enquired about the complaint. Vijay Kumar Aggarwal also tried to enquire from his office about his vehicle by his mobile phone but then those aforesaid persons took mobile phone Nokia N 73 having number 9810615707 from Vijay Kumar Aggarwal and kept it with them, asking him to keep quiet. In the meanwhile, two other companions of aforesaid two persons, whose age were about 2025 years, came. One of those persons had wrapped camel colour shawl. SC No. 23/2011 3/69

State Vs. Rajesh Kushwaha etc. Wife of Vijay Kumar Aggarwal also came from bedroom to the room towards outside and she was also asked by those persons to keep quiet and sit besides Vijay Kumar Aggarwal. The person wearing police uniform took out countrymade pistol and other person who had earlier come took out out a knife and made Vijay Kumar Aggarwal and his wife to sit keeping quiet. From amongst those two persons who came later, one who was wearing shawl, went inside the bed room, opened the almirah, locker and bed, searched them. After sometime said person with plastic bag came out having goods filled in it. On coming out the said person laid hand on black briefcase put on the table saying, "Isme Paanch Peti Hai". Said person tried to open the bag but when could not succeed then one amongst those persons asked Vijay Kumar Aggarwal to open the bag upon which Vijay Kumar Aggarwal opened the said bag by setting the number of the lock. Those persons took out Rs. 5 Lakhs kept in the bag, out of which Rs 90,000/ were in denomination of Rs 100/ currency notes and remaining were in denomination of Rs 500/ currency notes. The money was taken out from the bag and were filled in the pockets by the robbers and they demanded key of the car from Vijay Kumar SC No. 23/2011 4/69 State Vs. Rajesh Kushwaha etc. Aggarwal who picked it up and gave it to them. Rado wrist watch lying on the table was picked by the robbers and they threatened Vijay Kumar Aggarwal and his wife as, "Agar Tumne Shor Machaya Yaa Police Ko Bataya To Tumhey Wa Tumhare Baccho Ko Jaan Se Maar Denge". While leaving, the robbers bolted the door from outside. After sometime, wife of Vijay Kumar Aggarwal called the maid residing in neighborhood and got the door opened. Thereafter Vijay Kumar Aggarwal made telephone call to his fatherinlaw, called him and on his arrival made phone call to police. Vijay Kumar Aggarwal also stated that after checking his jewellery and goods, he will tell the details of the articles robbed, also stated that he can identify the four robbers. SI Narender Kumar (PW23) prepared tehrir Ex PW23/A, gave it to Ct Shish Ram (PW8) who went to police station Sarojini Nagar and gave it to duty officer ASI Asha Sinha (PW11) who recorded the FIR No. 81/07, under Sections 392/397/170/34 IPC. After registration of the FIR, investigation was entrusted to SI Rajesh Shukla (PW24) who reached at the spot with Ct Shish Ram (PW8). Crime Team was called at the spot who prepared report and took photographs. Site plan Ex PW24/A was SC No. 23/2011 5/69 State Vs. Rajesh Kushwaha etc. prepared by SI Rajesh Shukla (PW24). Black umbrella, Ex C2 and Pee cap, Ex C1 lying at the spot, stated by complainant Vijay Kumar Aggarwal to be belonging to the accused persons were seized. Invoice Ex PX of two robbed mobile phones was also seized vide memo Ex PW5/D. SI Rajesh Shukla (PW24) recorded statements of witnesses. On 22/02/2007, complainant Vijay Kumar Aggarwal came to police station and handed over the detailed list Ex PW5/E of the robbed articles to SI Rajesh Shukla (PW24) which was seized vide memo Ex PW5/B. Investigation was conducted by SI Rajesh Shukla (PW24). From the call details record of the robbed mobile phone the investigating officer SI Rajeesh Shukla (PW24) obtained the clue and did analysis of the call details of the telephone number. Accused Rajesh Shukla, employee in the company of complainant Vijay Kumar Aggarwal, was apprehended and arrested on 06/03/2007 from Petrol Pump near Trilok Puri. His disclosure statement was recorded and he led the police party to house of his inlaws at 14/87, Trilok Puri from where he got recovered black coloured mobile phone of Nokia 6030 make Ex P1 with the SIM having telephone number 9999679005 from the top of the fridge kept in the house. Said mobile SC No. 23/2011 6/69 State Vs. Rajesh Kushwaha etc. phone was seized vide memo Ex PW9/A. Accused Rajesh Kushwaha led the police party to place of occurrence and pointed out the spot vide memo Ex PW24/C. Pursuant to disclosure statement of accused Rajesh Kushwaha, in the course of his police custody remand he was also taken to UP. On 08/03/2007, police team brought accused Sunil Kumar Gupta and Uma Shanker after arresting them. Accused Uma Shanker and Sunil Kumar Gupta gave disclosure statements. They were kept in muffled face and they were produced for Test Identification Parade but both of them refused to participate in Test Identification Parade proceedings on 13/03/2007.

2. On 09/03/2007, accused Rajesh Kushwaha led the police party to Ghaziabad and later to a Market held at pavement on the road leading from Esplanade Road, Cycle Market to Jama Masjid and pointed out the place from where he with accused Sudhir Chauhan @ Abhay Chauhan (alleged to be killed in an encounter on 09/03/2007 in Meerut) had purchased police uniform comprising two pants and one khaki shirt from a shop. Statement of shopkeeper Brijesh Kumar Porwal was recorded. Accused Rajesh Kushwaha also SC No. 23/2011 7/69 State Vs. Rajesh Kushwaha etc. revealed that he had received his share of Rs 40,000/ from robbed money which he gave to his brother Ajay Kumar who further had deposited it in his post office account in Okhla. SI Rajesh Shukla (PW24) moved an application to seize/freeze the said account at the said post office in Okhla.

3. After refusal of accused Sunil Kumar Gupta and Uma Shanker to participate in Test Identification Parade on 13/3/07, on the next day i.e 14/3/2007 three days police remand of these accused were obtained. On 15/03/2007, said accused Uma Shanker and Sunil Kumar Gupta gave disclosure statements. On 16/3/2007 accused Uma Shanker and Sunil Kumar Gupta led the police party to their respective houses. At house bearing no. 120+722, Khoda Colony, Ghaziabad U.P of accused Sunil Kumar Gupta, he got recovered cash amount of Rs 2,000/ comprising four currency notes of Rs 500/ denomination collectively Ex P5 and two voter I cards issued in the name of complainant and his wife Ex P3 and Ex P4 respectively from small pooja place built up in his house. Said articles were seized vide memo Ex PW20/A. Thereafter accused Uma Shanker led the SC No. 23/2011 8/69 State Vs. Rajesh Kushwaha etc. police party to his rented room in Indira Vihar, Khoda Colony, Ghaziabad U.P and got recovered cash amount of Rs 3,000/ comprising 30 notes of Rs 100/ denomination, collectively Ex P6 kept in purse Ex PW24/L; Nokia mobile phone Ex P7 with SIM no. 9818322895 from under the mattress of the bed. These articles were seized vide memo Ex PW13/E. Said recovered amounts of money were stated to be the share of money received by the accused Uma Shanker and Sunil Kumar Gupta. Accused Uma Shanker also got recovered a metallic gold colour WagonR from a vacant plot ahead of his said house at Ghaziabad which was seized vide memo Ex PW13/A, though said car had no concern with this case. SI Rajesh Shukla (PW24) also obtained the copy of FIR and inquest papers relating to encounter of coaccused Sudhir Chauhan @ Abhay Chauhan.

4. On 17/03/2007, complainant Vijay Kumar Aggarwal and his wife Kamlesh Aggarwal (PW5) went to police station Sarojini Nagar to find out the progress of the case and then accused Uma Shanker and Sunil Kumar Gupta were in the room of SI Rajesh SC No. 23/2011 9/69 State Vs. Rajesh Kushwaha etc. Shukla (PW24) and there complainant and his wife identified these accused to be the same persons who committed robbery at their house. On completion of investigation, charge sheet was filed.

5. After completion of requirements of under Section 207 Cr.P.C., matter was committed to the court of Sessions. CHARGE

6. On 05.09.07, charge for offences under Sections 120BIPC read with Section 392 IPC; 392 IPC read with Section 120B IPC; 392 IPC read with Section 397 IPC was framed against all accused persons by my Ld. Predecessor. Also charge for offence under Section 170 IPC and 411 IPC was framed against accused Sunil Kumar Gupta on 05/09/2007 and also on the same day charge for offence under Section 411 IPC was framed against accused Uma Shanker by my Ld. Predecessor to which the accused persons pleaded not guilty and claimed trial.

SC No. 23/2011 10/69

State Vs. Rajesh Kushwaha etc. WITNESSES:

7. To connect the accused with the offences charged, prosecution has examined in all 24 witnesses namely Smt Jharna Das (PW1); Sh. Ramneet Singh (PW2); Sh Shehzad (PW3); Sh Aanchal Kumar Verma (PW4); Smt Kamlesh Aggarwal (PW5); Sh Surender Sharma (PW6); Sh Ravinder Nath Rana (PW7); Ct Shish Ram (PW8);

HC Hanuman Singh (PW9); Sh. Jagdish Shah (PW10); SI Asha Sinha (PW11); Sh D.D Sharma (PW12); Ct. Dharam Dev (PW13); Sh Ajit Singh (PW14); Sh Brijesh Kumar (PW15); Sh Satish Kumar, Metropolitan Magistrate (PW16); HC Atar Singh (PW17); Sh Vishal Gaurav (PW18); Sh Sumit Kumar Grover (PW19); ASI Sunil Minz (PW20); Sh Israr Babu (PW21); Sh Vikrant Chauhan (PW22); SI Narender Kumar (PW23) and SI Rajesh Shukla (PW24). STATEMENTS OF ACCUSED:

8. Thereafter accused persons were examined under Section 313 Cr.P.C. All incriminating material in evidence was put to the accused persons. All accused pleaded innocence and false implication. SC No. 23/2011 11/69

State Vs. Rajesh Kushwaha etc.

9. Accused Rajesh Kushwaha stated that in the office where he and complainant Vijay Kumar Aggarwal were working, occasionally altercation used to take place between him and Vijay Kumar Aggarwal and due to that he had been falsely implicated in this case. Accused Rajesh also stated that accused Uma Shanker was not his relative.

10. Accused Sunil Kumar Gupta stated that he was lifted from his house at Khoda Colony Ghaziabad. He also stated that Rs 2,000/ recovered were belonging to him and were in his purse on 08/03/2007 when police seized it from him, while no voter identity card of Kamlesh Aggarwal and Vijay Aggarwal were recovered from his house. Also, accused Sunil Kumar Gupta stated that he was shown to Kamlesh Aggarwal by police at police station Sarojini Nagar on 13/02/2007 because of which he refused to participate in test identification parade and he had not given any disclosure statement to the police.

11. Accused Uma Shanker stated that 4/5 police officials SC No. 23/2011 12/69 State Vs. Rajesh Kushwaha etc. apprehended him on 06/03/2007 from his home and Rs 3,000/ and his mobile whose last number was 95 was taken away by them and the SIM card was in his name. Accused Uma Shanker also stated that as he was shown to 4/5 persons including ladies on 06/03/2007 at police station Sarojini Nagar, so he refused to participate in Test Identification Parade. Accused Uma Shanker also stated that he had not given any disclosure statement to the police. Accused Uma Shanker stated that he met Sunil Kumar Gupta for the first time in police station Sarojini Nagar on 06/03/2007 and before that accused Sunil Kumar Gupta was not known to him. Also accused Uma Shanker stated that SI Rajesh Shukla (PW24) told him not to participate in Test Identification Parade, he would be left within 2/3 days. Accused Uma Shanker also stated that in 2005 or 2006, once or twice he had seen accused Rajesh Kushwaha when he traveled in the bus on route no. 118 driven by him from Mayur Vihar PhaseIII to ISBT ; later he had seen him on 07/03/2007 in police station. Accused Uma Shanker stated that accused Rajesh Kushwaha was neither his brotherinlaw nor related to him or his wife.

All accused denied to lead defence evidence.

SC No. 23/2011 13/69

State Vs. Rajesh Kushwaha etc. ARGUMENTS

12. I have heard the arguments of Ld. Addl. PP for the State, the defence counsel and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.

13. Ld. Addl. PP argued that investigating agency obtained clue from the call details record of the robbed mobile Nokia N73 and in the robbed instrument SIM card used was 9897521834; said mobile was recovered from Sartaj, brother of Shehzad (PW3); Shehzad (PW3) had purchased the mobile from Ramneet Singh (PW2) while Vikrant Chauhan (PW22) had sold the robbed mobile to Ramneet Singh (PW2) and it was the accused (now deceased) Abhay Chouhan @ Sudhir who had sold the robbed mobile to Vikrant Chauhan (PW22). Ld. Addl. PP argued that there was conspiracy between the accused persons and the accused Rajesh Kushwaha spilled out the beans against his fellow coaccused; accused Sunil and Uma Shanker were arrested on 07/03/2007 from Sultanpur, U.P, brought to Delhi where they subsequently refused to participate in Test Identification Parade; later accused Sunil got recovered voter SC No. 23/2011 14/69 State Vs. Rajesh Kushwaha etc. cards i.e election card of Election Commission of India of Kamlesh Aggarwal (PW5) and her husband Vijay Kumar Aggarwal, cash Rs 2000/ viz., part of robbed case property from his house at Ghaziabad; also accused Uma Shanker got recovered Rs 3000/, stated to be part of robbed case property, from his house at Ghaziabad pursuant to disclosure statement; Brijesh Kumar (PW15) identified accused Rajesh Kushwaha to be the person who had purchased from him two old pants and a shirt from pavement at Red Fort; accused Rajesh Kushwaha deposited cash Rs 40,000/ out of the robbed sum in the post office account of his brother Ajay, as per statement of account Ex PW10/A brought by Sh. Jagdish Shah (PW10) on record; even accused Rajesh Kushwaha did not go to his office on the day of occurrence as well as on the subsequent day of occurrence and in his examination under Section 313 Cr.P.C tendered false plea that he had to go for blood tests on the day of occurrence, the explanation given by him as the reason for not attending the office. Ld. Addl. PP for the State has prayed for the conviction of the accused persons.

14. Ld. Counsel for accused Sunil argued that names of SC No. 23/2011 15/69 State Vs. Rajesh Kushwaha etc. offenders do not find mention in the lodged FIR; in initial report lodged in the DD No. 16, the information recorded is of the robbery of Rs 5,000/ and one chain while since thereafter gradually the complainant improved upon his version time and again, subsequently submitting Rs 5 lakh and a watch in the FIR to be the robbed articles; later on 22/2/07 furnishing detailed list also detailing two mobile phones of Nokia but in all his lodged report there is no whisper of any voter card robbed; alleged recovery of two voter cards and Rs 2,000/ allegedly from accused Sunil was one month later to occurrence and voter cards and said cash was planted upon the accused and the cited and examined recovery witnesses have narrated contradictory versions; no independent witness had been joined in such recovery and their testimonies lack credence, are not trustworthy to rest conviction thereon. Also, was argued that even the local police of the area of recovery was neither joined in investigation prior to recovery nor was even informed post recovery; it was against human conduct for any thief/robber to retain voter cards of the owners one month later to alleged offence of robbery/theft and it only projects that the voter cards were planted SC No. 23/2011 16/69 State Vs. Rajesh Kushwaha etc. articles and the alleged recovery was shrouded with suspicion and there was no clinching evidence that alleged recovered Rs 2,000/ were part of the robbed property. Also was argued that it is the admitted case of prosecution witnesses that the accused Sunil and Uma Shanker were brought in the police station on 08/03/2007 in between 8 to 9 am and from that time till 2 pm before their production in court, there was ample time with the arresting officers, officers of investigating agency to show these accused persons to Smt Kamlesh Aggarwal (PW5) residing in the vicinity of less than 500 metres from police station; no copy of daily diary has been placed on record to prove that these accused were kept in muffled face before their production in the court and there was every reasonable possibility of the accused persons having been shown to Smt Kamlesh Aggarwal (PW5). It was argued that on account of having been shown to Smt Kamlesh Aggarwal (PW5) accused had refused to participate in the Test Identification Parade. Also, was argued that the alleged lodged report by complainant or statement given by Smt Kamlesh Aggarwal (PW5) to investigating officer in the course of investigation did not embody any details of features of the accused, SC No. 23/2011 17/69 State Vs. Rajesh Kushwaha etc. but it was simply mentioned that the two offenders were in the age group of 2025 years and the other offenders were in the age group of 2530 years.

15. Ld. Counsel for accused Uma Shanker also argued that there was no compliance of mandate of law embodied in Section 100 Cr.P.C; no investigation was carried about the source of money looted, even the briefcase was not seized from the spot qua which it was alleged that Rs 5 Lakhs were looted after being taken out of said briefcase; two children of age 15/16 years who were present inside the house, the place of occurrence, were not examined in investigation nor cited or examined as prosecution witnesses; none of the alleged recovered articles were sealed in any parcel; no independent witnesses or neighbors from the places of recoveries were called to join the recovery; accused Uma Shanker was of age 50 years plus as on the date of occurrence, not fitting in the age group of any of the offenders described in the lodged report; organization of Test Identification Parade was farce since accused persons were shown to Smt Kamlesh Aggarwal (PW5) at police station; receipt Ex SC No. 23/2011 18/69 State Vs. Rajesh Kushwaha etc. PX of mobile phones placed on record was a forged document and even Ld. Addl. PP for the State suggested to Ramneet Singh (PW2) in the course of cross examination that IMEI number of mobile purchased by Ramneet Singh (PW2) and sold to him by Vikrant (PW22) was 359400005838410 and not 359400005838411.

16. Ld. Counsel for accused Rajesh Kushwaha argued that there was no cogent evidence on record against accused Rajesh Kushwaha of having sold the robbed mobile phone; accused Rajesh Kushwaha even, as per case of prosecution, had not participated in robbery; no cogent evidence has been led on record to prove the complicity of accused Rajesh Kushwaha in conspiracy with arrayed coaccused; even Brijesh Kumar (PW15) merely stated of purchase of two pants and a shirt (not police uniform), old clothes sold by him at pavement at Red Fort to accused Rajesh Kushwaha; there being no receipt for the same and even said Brijesh Kumar (PW15) was an unauthorized person to sell such clothes on pavement and there was all probability of his dancing on the tunes of the police under compulsion to carry on his unauthorized trade; there was no cogent SC No. 23/2011 19/69 State Vs. Rajesh Kushwaha etc. evidence led on record that it was accused Rajesh Kushwaha who had deposited Rs 40,000/ in the post office account of his brother or that such deposited amount was part of the looted case property since no writings of the slip of deposit were obtained, sent for any handwriting expert opinion of FSL; call detail records of phone no. 9999358818 brought on record were in the name of Dinesh Kumar Kushwaha, not in any manner connected with accused Rajesh Kushwaha and even the parentage and address of registered consumer of said mobile phone was not matching with the address of accused Rajesh Kushwaha. Also was argued by Ld. Defence counsel that there was no meeting of minds inter se accused for the commission of the crime charged. Also was argued that since accused Rajesh Kushwaha was employee in the company of complainant, had some previous altercation with complainant, so he was falsely implicated by the police at the behest of complainant.

17. Ld Defence Counsels have argued for acquittal of the accused persons since prosecution has failed to prove its case against the accused beyond reasonable doubt and the case properties have SC No. 23/2011 20/69 State Vs. Rajesh Kushwaha etc. been planted upon the accused; accused Sunil and Uma Shanker were shown to material witness Smt Kamlesh Aggarwal (PW5) on 08/03/2007.

18. Smt Jharna Das (PW1) is the maid who had opened the bolt of the flat of Smt Kamlesh Aggarwal (PW5) from outside at about 8.45 am on the day of occurrence when she was called by Smt Kamlesh Aggarwal (PW5) later to the occurrence and Jharna Das (PW1) had found the articles in the house of Smt Kamlesh Aggarwal (PW5) lying scattered post robbery.

19. Smt Kamlesh Aggarwal (PW5) testified that on 13/2/2007 at about 7.45 am while she alongwith her husband/complainant Sh Vijay Kumar Aggarwal (now deceased) and her two children was sleeping in her house somebody had knocked the door of the house, Kamlesh Aggarwal (PW5) enquired who was there; the person knocking the door called her husband's name as Vijay Kumar Aggarwal and asked her if he is present or not; on this Kamlesh Aggarwal (PW5) woke up her husband and asked him that somebody SC No. 23/2011 21/69 State Vs. Rajesh Kushwaha etc. is calling him by his name; on this husband of Kamlesh Aggarwal (PW5) went to open the door but when he did not return for quite sometime Kamlesh Aggarwal (PW5) came out in the outer room of her house to check the same; there Kamlesh Aggarwal (PW5) saw her husband was sitting and four persons were standing in front of him; these four persons also called Kamlesh Aggarwal (PW5) and made her to sit with her husband (now deceased); at that time Kamlesh Aggarwal (PW5) further saw that two persons amongst the said four persons were aged about 20 to 25 years and two of them were aged about 2530 years; among the said persons one was wearing police uniform and he had kept knife on the neck of the husband (now deceased) of Kamlesh Aggarwal (PW5) and other three persons were having kattas in their hands and one of them who was wearing camel colour shawl went inside the bedroom of Kamlesh Aggarwal (PW5); thereafter Kamlesh Aggarwal (PW5) heard some noise from her bedroom, as if that person was opening all her almirahs, bed and lockers inside the said almirah of her bedroom; during the course of said incident when said person, who had gone inside the bedroom of Kamlesh Aggarwal (PW5), came out from there, he was having one SC No. 23/2011 22/69 State Vs. Rajesh Kushwaha etc. big plastic bag in his hand in which he had put all the articles which he had taken out from almirah etc.; when the said person came out of the bedroom to the room where Kamlesh Aggarwal (PW5) alongwith her husband (now deceased) were detained by his other associate, one office briefcase of black colour of husband of Kamlesh Aggarwal (PW5) was lying on the table; said person said that Rs 5 Lakhs are lying in the said briefcase and he further said, "Briefcase Ko Haath Marte Huye Isme Panch Lakh Rupey Hai" and thereafter that person tried to open the said briefcase but when he failed to open the same, he asked the husband (now deceased) of Kamlesh Aggarwal (PW5) to open the same; as soon as the husband (now deceased) of Kamlesh Aggarwal (PW5) opened the briefcase having a number lock, the said robbers took out the said amount of Rs 5 Lakhs from briefcase of deceased and they had kept the same in their pocket; also during the course of that incident when the person who was wearing camel colour shawl and had robbed Rs 5 Lakhs from the briefcase of husband (now deceased) of Kamlesh Aggarwal (PW5) asked for the key of car of husband of Kamlesh Aggarwal (PW5); husband (now deceased) of PW5 gave the keys of the car to the said person and SC No. 23/2011 23/69 State Vs. Rajesh Kushwaha etc. while leaving, the said person also lifted the wrist watch of Rado make of husband of Kamlesh Aggarwal (PW5) which was lying on the table; before leaving, the said robbers threatened Kamlesh Aggarwal (PW5) and her husband Vijay Kumar Aggarwal that "Agar Tumne Shor Machaya Yaa Police Ko Bulaya To Hum Aapke Bachho Ko Jaan Se Maar Denge"; these robbers also bolted the latch of the door of the house of Kamlesh Aggarwal (PW5) from outside and then they went away; when during the course of said incident when the said robbers left the house, Kamlesh Aggarwal (PW5) opened the back door of her house where a maid namely Jharna Dass (PW1) was residing in jhuggi near the wall of the garden; Kamlesh Aggarwal (PW5) called her and told her about the incident and asked her to open the door from outside; the said maid namely Jharna Dass (PW1) opened the door of house of Kamlesh Aggarwal (PW5) from outside; after sometime the husband (now deceased) of Kamlesh Aggarwal (PW5) telephoned her father and thereafter the father, brother and sisterinlaw (bhabhi) of Kamlesh Aggarwal (PW5) came to her house; thereafter they called police when the father of Kamlesh Aggarwal (PW5) directed Kamlesh Aggarwal (PW5) to do so and made her SC No. 23/2011 24/69 State Vs. Rajesh Kushwaha etc. understand; when police came at the spot after said call, statement Ex PW5/A of husband (now deceased) of Kamlesh Aggarwal (PW5) namely Sh Vijay Kumar Aggarwal was recorded; police had also seized a police Pee cap Ex C1 and one black colour umbrella Ex C2 from the spot and when the said robbers left the place of incident, Kamlesh Aggarwal (PW5) and her husband checked the house and found that the jewellery, cash, credit cards, debit cards, hotel cards, photocopy of election card, PAN cards of Kamlesh Aggarwal (PW5) and her husband (now deceased) were robbed by the said robbers; the said robbers had also robbed the purse of Kamlesh Aggarwal (PW5) containing items of day to day use; debit/credit cards alongwith her salary Rs 40,000/ and one diamond ring; one small purse belonging to children of Kamlesh Aggarwal (PW5) containing cash amount Rs 2,500/ were also taken away by said robbers in addition to Rs 21,000/ approximately which were lying in the almirah of Kamlesh Aggarwal (PW5) in the Shagun envelopes and one Nokia N72 mobile phone which was also in the said purse and one mobile phone Nokia N73 make of husband of PW5 was also taken away by the said robbers and all the said jewellery which were robbed by said SC No. 23/2011 25/69 State Vs. Rajesh Kushwaha etc. robbers was purchased by Kamlesh Aggarwal (PW5) from Tanishq; Sh Vijay Kumar Aggarwal, now deceased, later on had also given the detailed list Ex PW5/B mentioning all the robbed articles including seven jewellery articles, the said cash, two mobile phones, one Rado wrist watch, eight debit/credit cards belonging to Kamlesh Aggarwal (PW5) and her husband; seven debit cards belonging to Kamlesh Aggarwal (PW5) and her husband; two PAN cards one each of Kamlesh Aggarwal (PW5) and her husband and five hotel cards.

20. Smt Kamlesh Aggarwal (PW5) also testified that she was using SIM card bearing no. 9810368782 in the robbed Nokia N72 mobile phone.

21. SI Rajesh Shukla (PW24) testified that during the course of investigation it was found that robbed mobile phone make Nokia N72 having IMEI no. 359400005838411 was being used on Airtel connection bearing no. 9897521834 and the name of the user was found to be one Sartaj, resident of H. No. 240, Mohalla Khairat Ali, Islamia Madrasa Mawana, UP.

SC No. 23/2011 26/69

State Vs. Rajesh Kushwaha etc.

22. The call details record, Ex PW18/H of phone no. 9897521834 proved on record in the course of testimony of Vishal Gaurav (PW18) depict that with effect from 23/02/2007, 131749 hours, the phone instrument of IMEI no. 359400005838410 was used till 26/02/07, 205326 hours for said number. No cogent evidence has been led on record that mobile phone with IMEI no. 359400005838411 was ever used for no. 9897521834. There is no cogent evidence on record that user of aforesaid phone was Sartaj (brother of Shehzad, PW3). Ex PW18/J, the subscriber details of mobile no. 9897521834 proved on record by Vishal Gaurav (PW18) depict the said number to be in the name of Mohan Singh, son of Sh Sujan Singh, Village Nagla Gurmyal, PO Etmadpur, Agra, U.P. Said Mohan Singh has neither been cited nor examined as prosecution witness.

23. In the course of evidence when mobile phone make Nokia N72 having IMEI no. 359400005838411 was shown to Shehzad (PW3) then Shehzad (PW3) stated that it was not the mobile phone purchased by his brother Sartaj from Aanchal Kumar Verma SC No. 23/2011 27/69 State Vs. Rajesh Kushwaha etc. (PW4). Sartaj brother of Shehzad (PW3) was not examined by prosecution. Aanchal Kumar Verma (PW4); Ramneet Singh (PW2) and Vikrant Chauhan (PW22) were not shown the aforesaid mobile phone instrument Nokia N72 with IMEI no. 359400005838411 in the course of prosecution evidence to elicit and identify as to whether it was the same which was purchased as well as sold by them.

24. SI Rajesh Shukla (PW24) testified that the aforesaid mobile phone instrument make Nokia N72 bearing IMEI no. 359400005838411 was seized on 26/02/2007 vide memo Ex PW3/A from Shehzad, S/o Late Sh Babu Khan, R/o Mohalla Khairat Ali, Mawana, District Meerut, UP by SI Virender Prakash (now deceased). Ex PW3/A finds mention of the name of Ct Hanuman Singh (PW9) as the sole witness to aforesaid seizure.

25. On account of expiry of SI Virender Prakash, he could not be examined. I advert to the testimony of HC Hanuman Singh (PW9). In his entire version, HC Hanuman Singh (PW9) did not whisper a word of having gone to Meerut on 26/02/2007 and on that SC No. 23/2011 28/69 State Vs. Rajesh Kushwaha etc. day Shehzad (PW3) produced any such mobile phone with IMEI no. 359400005838411 or then it was seized by SI Virender Prakash (now deceased). HC Hanuman Singh (PW9) inter alia testified that N72 mobile was recovered which was being used by accused Uma Shanker vide memo Ex PW3/A bearing his signature at point A. In the course of cross examination, HC Hanuman Singh (PW9) stated that no mobile phone was recovered from accused Uma Shanker and he identified Ex P1 as the mobile phone recovered from one Shehzad. Yet, HC Hanuman Singh (PW9) did not whisper a word as to when and where such mobile phone Ex P1 was recovered from said Shehzad.

26. SI Rajesh Shukla (PW24) testified that he had examined witness Vikrant Chauhan (PW22) to ascertain how the robbed mobile reached to him and recorded his statement. Vikrant Chauhan (PW22) testified that he gave to police the mobile phone numbers 9990200355 and 9971457317 as the mobile phone numbers of Abhay Chauhan @ Sudhir (deceased accused) by which he used to call him (PW22). SI Rajesh Shukla (PW24) testified that he obtained call SC No. 23/2011 29/69 State Vs. Rajesh Kushwaha etc. detail records of aforesaid mobile phone numbers 9990200355 and 9971457317 belonging to Abhay Chauhan @ Sudhir on 02/03/2007 and analyzed them, found location of 9990200355 to be in the area of Sarojini Nagar. Sh Ajit Singh (PW14), Assistant Nodal Officer of Idea Cellular Company has proved on record the form, Ex PW14/A of mobile no. 9990200355 to be in the name of Sanno, W/o Nazru and further stated that the call details record were not available. No cogent evident has been led nor any call details record of the mobile phone numbers 9990200355 and 9971457317 nor any customer application form with supporting documents of the mobile phone no. 9971457317 have been proved to be belonging to said Abhay Chauhan @ Sudhir . It is not proved on record that the location of mobile phone no. 9990200355 was in the area of Sarojini Nagar at the time of occurrence. It has also not been proved on record that the said mobile phone numbers 9990200355 and 9971457317 were being used by the deceased accused Abhay Chauhan @ Sudhir, since registered consumers of these mobile numbers have neither been examined in the course of investigation nor cited nor examined as prosecution witnesses to testify of the fact as to whether they were themselves SC No. 23/2011 30/69 State Vs. Rajesh Kushwaha etc. using the said mobile phone numbers registered in their name or else they had given any of such numbers to said Abhay Chauhan @ Sudhir for use.

ARREST OF ACCUSED RAJESH KUSHWAHA

27. SI Rajesh Kushwaha (PW24) testified that on 06/03/2007, he arrested accused Rajesh Kushwaha from Petrol Pump near Trilok Puri vide arrest memo Ex PW9/C. At 8 pm on 06/03/07 is the time of arrest mentioned in memo Ex PW9/C. SI Rajesh Shukla (PW24) further testified that after arrest of accused, his personal search was conducted vide memo Ex PW9/B and at that place he was accompanied by Ct. (now HC) Hanuman Singh (PW9) and Ct Kartar and at that place disclosure statement Ex PW24/B of accused Rajesh Kushwaha was recorded; pursuant to disclosure statement, accused Rajesh Kushwaha led the police party to the house of his inlaws at 14/87, Trilok Puri, Delhi from where accused Rajesh Kushwaha got recovered the black colour mobile phone of Nokia 6030 Ex P1 from the top of the fridge, kept in the said house; said mobile phone was seized vide memo Ex PW9/A. Also, SI Rajesh Shukla (PW24) SC No. 23/2011 31/69 State Vs. Rajesh Kushwaha etc. testified that he even requested the inmates of said house as well as neighbors to become witness of the proceeding, but none agreed; SI Rajesh Shukla (PW24) could not elicit the names of the relatives of accused found present at that time in the house.

28. HC Hanuman Singh (PW9) testified that on 06/03/2007, accused Rajesh Kushwaha was arrested from near the Petrol Pump, Trilok Puri by the IO and at that time the Nokia mobile phone was in the hand of accused Rajesh Kushwaha, which was recovered and seized vide seizure memo Ex PW9/A, prepared at the spot i.e place of his arrest. In his entire testimony, HC Hanuman Singh (PW9) did not whisper a word of either accused Rajesh Kushwaha having given any disclosure statement Ex PW24/B at the place of his arrest or having led the police officials to the house of his inlaws bearing no. 14/87, Trilok Puri or any search having been conducted there or IO having made any request to the inmates of the house or neighbors to join proceedings, search or seizure or from over the fridge there, said mobile having been so recovered at the house of inlaws of accused Rajesh Kushwaha.

SC No. 23/2011 32/69

State Vs. Rajesh Kushwaha etc.

29. Accordingly, there are different and contradictory versions of alleged recovery of mobile phone Ex P1 make Nokia 6030 allegedly with SIM no. 9999679005 from or at instance of accused Rajesh Kushwaha.

30. Falsity in version of SI Rajesh Shukla (PW24) on this aforesaid count is apparent on the face of record. Sh Israr Babu (PW21), Alternative Nodal Officer, Vodafone, proved on record that one Sh Shrikant Shah, R/o 14/87, Block14, Trilok Puri, New Delhi was the registered owner of mobile phone no. 9999679005 from 05/02/2007 to 25/02/2007, in terms of the records of ownership Ex PW22/B1 and Ex PW22/B2 (collectively). Also, Sh Israr Babu (PW21) proved on record that Jai Prasad, S/o Ram Bharose, R/o 251, A Block near Santosh Medical College, Gali No. 7, Rahul Vihar1, Ghaziabad was the registered consumer of aforesaid mobile no. 9999679005 as per documents Ex PW21/A1 to A6, with effect from 25/02/2007 till 17/09/2007. Neither SI Rajesh Shukla (PW24) has examined in the course of investigation aforesaid Shrikant Shah and Jai Prasad, registered consumers of mobile phone no. 9999679005 nor SC No. 23/2011 33/69 State Vs. Rajesh Kushwaha etc. recorded their statements as to whether during their period of ownership of said mobile number they were using said phone number or they had given it to any person including accused Rajesh Kushwaha. It also does appeal to reason that after the mobile number is discontinued on 25/02/2007 by resident of Trilok Puri (exactly 14/87, Block 14, Trilok Puri) then another consumer is alloted the same number with effect from 25/02/2007 and who is native of Ghaziabad and is the registered consumer of the same number till September, 2007 and the said call details records of said mobile number reflect it to be in working order, then why, how and in which manner such mobile number could be related back to previous registered consumer as on 06/03/2007. So, by no figment of imagination, the stated recovery of mobile phone make Nokia having SIM card of number 9999679005 could have been effected from 14/87, Block14, Trilok Puri, since on that day itself, registered consumer namely Jai Prasad, was the native of Ghaziabad. On this count accordingly the version of SI Rajesh Shukla (PW24) is per se improbable. There is also no cogent evidence led on record to prove the tower location of said SIM no. 9999679005 as on 06/03/2007 or a SC No. 23/2011 34/69 State Vs. Rajesh Kushwaha etc. day before to be in the vicinity of the alleged place of recovery at Trilok Puri.

31. HC Hanuman Singh (PW9) was emphatic in course of his cross examination saying he did not visit the house of accused Rajesh Kushwaha; that the mobile was recovered from the hand of accused at the place of his arrest and on arrest, the seizure memo of mobile phone was prepared at the place of arrest. Ct Kartar, signatory as a witness to Ex PW9/A has not been brought into witness box by the prosecution, instead was dropped as prosecution witness by Ld. Addl. PP for the State on 24/08/2009 before my Ld. Predecessor.

32. Account statement Ex PW10/A and specimen signature sheet Ex PW10/B of Ajay Kumar, S/o Sh Om Parkash brought on record by Sh Jagdish Shah, of Postal Department, in no way can prove that Rs 40,000/ allegedly deposited in the said account in post office were so deposited by accused Rajesh Kushwaha and/or were part of robbed amount. Deposit slips of said amount have not been SC No. 23/2011 35/69 State Vs. Rajesh Kushwaha etc. seized to match its writing with writing of accused Rajesh Kushwaha. Account holder Ajay Kumar has neither been cited nor examined as prosecution witness.

ARREST OF ACCUSED SUNIL AND UMA SHANKER

33. SI Rajesh Shukla (PW24) testified that on 07/03/2007 pursuant to disclosure statement made by accused Rajesh Kushwaha, the team comprising SI Virender Prakash (now deceased), HC Atar Singh (PW17), Ct Hanuman Singh (PW9) and Inspector S.S Rana had gone to UP to arrest accused Sunil and Uma Shanker. SI Rajesh Shukla (PW24) further testified that on 08/03/2007 at about 8 or 9 am accused Sunil and Uma Shanker were produced before SI Rajesh Shukla (PW24) by the police team who had brought them there after arrest. Arrest memos Exts PW9/F, PW9/G and personal search memos Exts PW9/D and PW9/E were also handed over to SI Rajesh Shukla (PW24).

34. Senior most amongst the alleged members of the police party having gone to arrest accused Sunil and Uma Shanker namely SC No. 23/2011 36/69 State Vs. Rajesh Kushwaha etc. Inspector S.S Rana was neither cited nor examined as a prosecution witness. Arrest memos Exts PW9/F and PW9/G of accused Sunil and Uma Shanker respectively find mention, "Ram Bahadur Kaa Makaan, Krishna Colony, Panch Rastaa, Sultanpur (UP)", as the place of arrest of these two accused persons and the time of arrest to be 5.30 pm on 07/03/2007, arresting officer being SI Virender Prakash (now deceased). Even these arrest memos find no mention of Inspector S.S Rana to be witness of such arrest nor signatures of Inspector S.S Rana do appear there. No copies of daily diary entries of departure of any of aforesaid members of police party to Sultanpur (UP) or their arrival back in Delhi have been filed alongwith the chargesheet nor have been proved.

35. HC Hanuman Singh (PW9) testified that on 07/03/2007 they visited Sultanpur from where accused Sunil and Uma Shanker were arrested and one N72 mobile phone was recovered vide memo Ex PW3/A, which was being used by accused Uma Shanker. HC Hanuman Singh (PW9) blowed hot and cold in the same breath saying in his cross examination that in his presence no mobile phone was SC No. 23/2011 37/69 State Vs. Rajesh Kushwaha etc. recovered from accused Uma Shanker. HC Hanuman Singh (PW9) says that they remained at the house of accused Uma Shanker for about one hour but he did not remember, (1) the number of house of accused Uma Shanker, (2) whether accused Uma Shanker was alone or his family members were present, (3) whether any person of family of accused Uma Shanker signed any document prepared by IO, but he specified that accused Uma Shanker was arrested from his home from ground floor which was kacha pucca makaan having three rooms on ground and first floor. HC Hanuman Singh (PW9) also specified that the place of arrest of accused Sunil fell under jurisdiction of police station Kotwali, at which police station they had informed and the local police staff was also with them in the course of apprehension of accused Sunil, but he did not remember their names, who were 34 in numbers. As per HC Hanuman Singh (PW9), they had started from Delhi on 06/03/2007 at 9 pm and reached at Sultanpur (UP) on 07/03/2007 at 3.30 pm after having covered the distance of about 800 kms. HC Hanuman Singh (PW9) stated that they took intervals to have meals, rests during journey. HC Hanuman Singh (PW9) further stated that secret informer SC No. 23/2011 38/69 State Vs. Rajesh Kushwaha etc. identified accused Sunil before arrest but he did not remember who over powered accused Sunil. Further HC Hanuman Singh (PW9) elicited that he did not visit the local police station of place of apprehension of accused Sunil; IO might have made entry at local police station; they had tried to join public witness but in vain. HC Hanuman Singh (PW9) also stated that they had left Sultanpur on 07/03/2007 at 6/7 pm. HC Hanuman Singh (PW9) did not whisper of arrest of accused Sunil and/or Uma Shanker from, "Ram Bahadur Kaa Makaan, Krishna Colony, Panch Rastaa, Sultanpur (UP)".

36. HC Atar Singh (PW17) has a different tale to tell in respect of visit to Sultanpur, UP, inconsistent as well as in contradiction with the version of HC Hanuman Singh (PW9). HC Atar Singh (PW17) deposed that he (HC Atar Singh) (PW17), SI Virender Prakash (now deceased), Ct Hanuman Singh (PW9) and Inspector S.S Rana had gone to Sultanpur, UP on 07/03/2007, where an informer met them who informed them that accused Uma Shanker and Sunil may be available at the house of Ram Bahadur; then they went to kucha colony namely Krishna Colony in Sultanpur and SC No. 23/2011 39/69 State Vs. Rajesh Kushwaha etc. informer pointed out the house; on seeing police party, both accused Sunil and Uma Shanker started running but both of them were apprehended. Not a single word of the version of HC Hanuman Singh (PW9) and HC Atar Singh (PW17), witnesses of arrest of accused Uma Shanker and Sunil, is corroborated by each other amongst them qua the sequence of events of their visit to Sultanpur, UP, the manner and place of apprehension of the accused, time of their leaving Delhi and their reaching Sultanpur, UP. HC Atar Singh (PW17) testified that they left the police station at about 12.20 am (night) and reached Sultanpur on 07/03/2007 in the morning. HC Atar Singh (PW17) also stated that he did not know if any IO had informed any local police station in Sultanpur but was emphatic to say that no police official from Sultanpur was joined nor any public witness was joined at the time of making raid at the house of 'Babu'. HC Atar Singh (PW17) also was not knowing if IO had recorded any statement of any public person regarding identity of house of 'Babu'. HC Atar Singh (PW17) did not clarify about any such 'Babu' or the raid at house of such 'Babu'. Discrepant versions of HC Hanuman Singh (PW9) and HC Atar Singh (PW17) qua manner, sequence and place SC No. 23/2011 40/69 State Vs. Rajesh Kushwaha etc. of arrest of accused Sunil and Uma Shanker and even visit of the stated police party to Sultanpur, UP being in contradiction inter se, make the projected arrest of accused Sunil and Uma Shanker suspicious. The officers of investigating agency have not placed on record nor proved any copies of any daily diaries of mention of their such visit to Sultanpur, UP prior or later to apprehension and arrest of accused Sunil and Uma Shanker nor cited or examined any police officials of the local police station of Sultanpur (U.P) to that effect. No independent witness has been joined in the apprehension or arrest of accused Sunil and Uma Shanker. It adds dimensions to the shadow of doubt casted over the alleged arrest of accused Sunil and Uma Shanker.

RECOVERY OF CASE PROPERTIES ON 16/03/2007

37. SI Rajesh Shukla (PW24) testified that pursuant to their disclosure statements, accused Uma Shanker and Sunil Kumar Gupta led the police party comprising him (PW24), Ct Dharam Dev (PW13) and HC Sunil Minz (PW20) on 16/03/2007 to their respective houses; firstly they went to house of accused Sunil bearing no. SC No. 23/2011 41/69

State Vs. Rajesh Kushwaha etc. 120+722, Khoda Colony, Ghaziabad, UP from where accused Sunil got recovered four currency notes of denomination of Rs 500/ i.e cash amount of Rs 2,000/, collectively Ex P5 and two Voter Identity Cards of complainant Vijay Kumar Aggarwal (now deceased) and his wife, Exts P3 and P4 respectively, from small pooja place built up in his house which were seized vide memo Ex PW20/A. Aforesaid articles Exts P3, P4 and P5 were not sealed. SI Rajesh Shukla (PW24) deposed that before recovery of Exts P4,P5 and P6, he had requested persons from neighborhood and family members in the house to join proceedings but none had agreed. SI Rajesh Shukla (PW24) elicited that door of house of accused Sunil was open but he was unable to tell the topography of said house, which room, toilet or kitchen were on which side of the house. SI Rajesh Shukla (PW24) further elicited that parents of accused Sunil were present there but he was not knowing who else were present there while no neighbor was made witness.

38. Ct Dharam Dev (PW13) testified that he could not tell from which place at the house of accused Sunil aforesaid money and SC No. 23/2011 42/69 State Vs. Rajesh Kushwaha etc. Voter Identity Cards were found and in respect of the same only IO (PW24) may be knowing. Ct Dharam Dev (PW13) was candid in submitting that they spent one and half hour at the house of accused Sunil, that IO had kept currency notes and Identity Cards in a paper in his pocket, which were not sealed; he (PW13) was not knowing how many rooms were there in the house of accused Sunil. Also, Ct Dharam Dev (PW13) stated that information was given in concerned police station at Ghaziabad, the name of such police station was not stated by Ct Dharam Dev (PW 13) but he clarified that no police official of such police station of Ghaziabad was joined in their team for recovery. No document has been placed on record by the investigating agency of giving of any such information to the police station of the area of house of accused Sunil, alleged place of such recovery. As per Ct Dharam Dev (PW13), the constables namely Ct Hanuman Singh (PW9), Ct Kartar and other police officials were also with them. It has been not so said by SI Rajesh Shukla (PW24), HC Sunil Minz (PW20) or even Ct Hanuman Singh (PW9) that Ct Hanuman Singh (PW9), Ct Kartar and other police officials had accompanied Ct Dharam Dev (PW13), HC Sunil Minz (PW20) and SI SC No. 23/2011 43/69 State Vs. Rajesh Kushwaha etc. Rajesh Kushwaha (PW24) for such recovery at the place of accused Sunil. Even Ct Dharam Dev (PW13) could not specify the denomination of the currency notes allegedly seized at the house of accused Sunil or even their number.

39. HC (now ASI) Sunil Minz (PW20) testified that he with SI Rajesh Kushwaha (PW24), Ct Dharam Dev (PW13), accused Sunil and Uma Shanker had reached at house of accused Sunil on 16/03/2007 from where near the place of pooja in the house the said two Voter Identity Cards Exts P3 and P4 and Rs 2,000/, Ex P5, were seized vide memo Ex PW20/A. HC (now ASI) Sunil Minz (PW20) testified that he did not remember when they left the police station, was not knowing whether any departure entry was made or how many rooms were in the house of accused Sunil but stated that they had not joined any public witness in the search and seizure and even no police official of local police station of Ghaziabad was joined in such search or recovery proceedings.

40. SI Rajesh Shukla (PW24) testified that from the house of SC No. 23/2011 44/69 State Vs. Rajesh Kushwaha etc. accused Sunil, thereafter accused Uma Shanker led them to his rented room at Indira Vihar, Khoda Colony, Ghaziabad, U.P and got recovered cash amount of Rs 3,000/ comprising thirty notes of Rs 100/ denomination, collectively Ex P6; a Nokia mobile phone with SIM no. 9818322895, Ex P7 from under the mattress of bed which were seized vide memo Ex PW13/E. Aforesaid articles Exts P7 as well as P6 were not sealed in any parcel. SI Rajesh Kushwaha (PW24) did not note down the number of alleged recovered currency notes nor any identification mark was put on such notes. SI Rajesh Kushwaha (PW24) deposed that they reached the house of accused Uma Shanker at 3 /4 pm, remained there for 30 or 40 minutes, where only wife of accused Uma Shanker was present, houses were in vicinity of said house, he (PW24) made efforts to join neighbors in investigation but none agreed and no action under Section 187 IPC was taken by him against such refusing persons. SI Rajesh Shukla (PW24) elicited that he had not recorded statement of any person regarding status of accused Uma Shanker in said house to be tenant or owner.

SC No. 23/2011 45/69

State Vs. Rajesh Kushwaha etc.

41. As per Ct Dharam Dev (PW13), family members of accused Uma Shanker were present in his house at the time of alleged recovery, no public persons were joined from neighboring houses in the proceedings/recovery while the distance between accused Sunil and Uma Shanker was 500 metres. Also, Ct Dharam Dev (PW13) deposed that he was not knowing if IO had written any paper at the house of accused Uma Shanker but specified that number of currency notes were not noted nor currency notes were signed. Ct Dharam Dev (PW13) was not knowing whether IO (PW24) obtained any signature of any family member of accused Uma Shanker on any document. Said mobile phone and currency notes were not sealed but as per Ct Dharam Dev (PW13), they were kept by the IO (PW24) in his pocket. Further, Ct Dharam Dev (PW13) testified that he could not say from which portion of the house or from which table, almirah or drawer said mobile phone Ex P7 and currency notes Ex P6 were so recovered from house of accused Uma Shanker. As per Ct Dharam Dev (PW13), the information was given in concerned police station at Ghaziabad but he did not remember the name of said police station and no officials of said police station were joined in their SC No. 23/2011 46/69 State Vs. Rajesh Kushwaha etc. team for such recovery. Ct Dharam Dev (PW13) further deposed that they came in the police station in the evening of 16/03/2007 itself but he did not know how car was brought from Khoda Colony to police station. SI Rajesh Kushwaha (PW24) had elicited that even accused Uma Shanker had got recovered metallic gold colour WagonR car from a vacant plot, little ahead of his house which was seized vide memo Ex PW13/A, though said car has no concern with the present case.

42. HC (now ASI) Sunil Minz (PW20) testified that Nokia mobile phone 1110, Ex P7 and Rs 3,000/, Ex P6, were recovered from underneath the bed (not mattress) at the double storey house of accused Uma Shanker where no public witness was joined in the search and seizure. HC (now ASI) Sunil Minz (PW20) deposed that from Ghaziabad they had gone to Meerut to collect the copy of FIR and from Meerut they left at about 8 pm to Delhi on 16/03/2007. Such version is contrary to the version of Ct Dharam Dev (PW13) who stated of the police party having reached back to police station in the evening of 16/03/2007. Ct Dharam Dev (PW13) as well as SI SC No. 23/2011 47/69 State Vs. Rajesh Kushwaha etc. Rajesh Shukla (PW24) did not whisper a word that from house of accused Uma Shanker they had gone to Meerut for collecting any copy of FIR and had left that place at about 8 pm on 16/03/2007 for Delhi.

43. Investigating officer belonging to one police station is permitted to search any place falling within the limits of another police station in certain exigencies without making any requisition of the services of the police officer of the police station where the search is to be conducted in certain exigencies. One such exigency can be when there is possibility of delay in requisitioning the services of the police officer of another police station and such delay could defeat the very purpose of the search. In such circumstances, when search is conducted by the investigating officer without requisitioning the services of the officer incharge of the another police station within whose jurisdiction the search was conducted, under SubSection (4) of Section 100 Cr.P.C, he is required to forthwith send notice of the search to the officer incharge of the police station within the limits of which such place is situated, and is also required to send alongwith SC No. 23/2011 48/69 State Vs. Rajesh Kushwaha etc. such notice a copy of the list, if any, prepared under Section 100 Cr.P.C. He is also required to send to the nearest Magistrate empowered to take cognizance of the offence, copy of the records prepared by him under subSection (1) and (3) of Section 165 Cr.P.C.

44. The officers of investigating agency had the prior knowledge in terms of disclosure statements of accused Sunil and Uma Shanker about alleged presence of the part of the robbed case property in the premises of accused Sunil and Uma Shanker in Ghaziabad. No document has been placed on record by the investigating agency of having informed the local police station at Ghaziabad so as to search the alleged residences of accused Sunil and Uma Shanker falling within their jurisdiction or where the search was to be conducted. Also on record no document has been placed nor proved that any notice/information was sent to the officer incharge of police station concerned or the nearest Magistrate empowered to take cognizance, within whose jurisdiction the search of house of accused Sunil and Uma Shanker was so conducted and alleged recoveries, elicited herein above, effected. Even no copies of SC No. 23/2011 49/69 State Vs. Rajesh Kushwaha etc. daily diaries have been placed on record by the investigating agency to substantiate or prove the departure of said members of police party on 16/03/2007 to said places of accused Sunil and Uma Shanker at Ghaziabad and on return their such arrival back at police station. No independent witnesses or inhabitants of the locality of the house of accused Sunil and/or Uma Shanker or their neighbors have been joined in the investigation, search and seizure of such case properties to lend credence to such search and seizure allegedly effected by the officers of investigating agency.

45. Public persons were admittedly available at the elbow of officers of the investigating agency whom they could have joined in the search of premises of accused and seizure of the articles from such places. Despite availability of such public persons at their elbow, same feeble plea of refusal of some neighbors to join investigation has been churned which has seldom found favour with the Courts. The officers of investigating agency of the rank of Sub Inspector were conscious of the fact that case of robbery was being investigated wherein offenders were neither named nor described SC No. 23/2011 50/69 State Vs. Rajesh Kushwaha etc. (excepting age), in the statements of the eye witnesses. Yet, it is not apparent from the record that the investigation was fair. I say so, since no independent witness has been joined in the search and seizure of the articles viz. Exts P1,P2,P3,P4,P5 and P6 claimed to be part of the robbed articles, for which recoveries, the provisions of law and procedure have been kept at bay.

46. Smt Kamlesh Aggarwal (PW5) testified that no stolen article was recovered by the police. The alleged recovered articles Exts P3 to P6 , alleged to be part of the robbed case properties were not got identified by Smt Kamlesh Aggarwal (PW5) in the course of her examination by the prosecution.

47. Smt Kamlesh Aggarwal (PW5) testified that Rs 5 lakhs robbed from them were consisting of Rs 90,000/ in denomination of currency notes of Rs 500/ each and the remaining amount of currency was in the denomination of notes of Rs 100/ each. Lodged report Ex PW5/A, the basis of FIR and as per presented case of prosecution the stated robbed Rs 5 Lakhs were in the form of SC No. 23/2011 51/69 State Vs. Rajesh Kushwaha etc. currency notes of Rs 90,000/ in the denomination of Rs 100/ each and remaining currency notes i.e Rs 4,10,000/ in the form of currency notes of denomination of Rs 500/ each. The briefcase from which the said currency notes were removed was neither seized nor produced in evidence. Smt Kamlesh Aggarwal (PW5) also testified that four robbers in their house were all armed, saying, one wearing police uniform was having knife, other three robbers were having kattas (country made pistol) in their hands. In Ex PW5/A, lodged report of Vijay Kumar Aggarwal, complainant, it finds mention that from amongst the two persons who had come earlier in the house, one was having katta and the other was having knife but regarding the other two persons of age 2025 years who had entered the house of complainant later, there is no mention that any or both of them were having any weapon with them. It also finds mention in Ex PW5/A that the person wearing police uniform took out desi katta (countrymade pistol) and the other person accompanying him had taken out knife. Per contra, Smt Kamlesh Aggarwal (PW5) testified that the person wearing police uniform (accused Sunil) had kept knife on the neck of her husband, complainant Vijay Kumar Aggarwal. No SC No. 23/2011 52/69 State Vs. Rajesh Kushwaha etc. where it is mentioned in Ex PW5/A that any knife was kept on the neck of complainant Vijay Kumar Aggarwal (now deceased) by any of robbers.

48. To constitute a conspiracy, meeting of minds of two and more persons for doing an illegal act or an act by illegal means is the first and primary condition through it is not necessary that all the conspirators must know each and every detail of the conspiracy. The unlawful agreement inter se conspirators is sine qua non for constituting offence under Indian Penal Code. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express or partly implied.

49. For bringing home the charge of conspiracy, there must be some material from which it would be reasonable to establish connection between the alleged conspiracy and the act done pursuant to said conspiracy. See Vijayan vs State of Kerala, AIR 1999 SC 1086. For causing a conviction, the criminal conspiracy must be proved. See State of UP vs Sukhbari & Ors., AIR 1985 SC 1224. SC No. 23/2011 53/69

State Vs. Rajesh Kushwaha etc.

50. There is no material on record nor any cogent evidence has been led to prove any meeting of minds or entering into an illegal agreement or an act by illegal means viz a viz accused Sunil and his arrayed coaccused.

51. The call detail records Ex PW21/D4 of mobile phone no. 9999358818 in the name of Dinesh Kumar Kushwaha embodying the mention of call made with no. 9818322895 in the name of accused Uma Shanker on 08/02/2007, 09/02/2007, 10/02/2007, 11/02/2007, 12/02/2007 and 13/02/2007 (10.55 am) in no way by any figment of imagination can be held to prove that there had been any meeting of minds of accused Uma Shanker with accused Rajesh Kushwaha for the purposes of committing robbery under consideration. The registered consumer of mobile phone no. 9999358818 namely Dinesh Kumar Kushwaha was neither examined in the course of investigation nor cited or examined as a prosecution witness to cull out and prove the fact of said mobile conversation, having been done at any point of time by accused Rajesh Kushwaha SC No. 23/2011 54/69 State Vs. Rajesh Kushwaha etc. or said registered consumer Dinesh Kumar Kushwaha had himself not used his mobile connection for aforesaid conversation. Mere assertion of Surender Sharma (PW6) of having had conversation with accused Rajesh Kushwaha on number 9999358818 would not be a conclusive proof of any existence of talk of conspiracy of present offence inter se accused Rajesh Kushwaha and accused Uma Shanker. Even though not admitted, for the sake of arguments, even if it is assumed there had been some talks on mobile phone inter se accused Uma Shanker and Rajesh Kushwaha then also that will be short of bringing home the charge of conspiracy for the crime of robbery to establish connection between the alleged conspiracy and the act done pursuant to the said conspiracy. It would be absurd to nail any person whosoever has had any talks on mobile phone with any of the arrayed accused in the absence of any cogent evidence to establish connection between the alleged conspiracy and the act done pursuant to the said conspiracy. The material brought on record and evidence led falls short of proving by any cogent evidence the essence of criminal conspiracy existing inter se arrayed accused. Sh Brijesh Kumar (PW15), dealer of old/used clothes simply deposed SC No. 23/2011 55/69 State Vs. Rajesh Kushwaha etc. that on 05/02/2007 accused Rajesh Kushwaha purchased two pants and one shirt, the old clothes, for Rs 450/, sold by him on pavement at Red Fort. Brijesh Kumar (PW15) did not whisper of having either sold any police uniform or Pee cap Ex C1 to said accused.

52. Admittedly, excepting the mention of the age group 2530 years, of two robbers who initially entered the house of complainant and the age group 2025 years of the other two robbers who subsequently entered the house of complainant and thereby allegedly committed robbery, no specific identification features of such robbers are mentioned in the lodged report Ex PW5/A by complainant Vijay Kumar Aggarwal (now deceased) and/or in the statement under Section 161 Cr.P.C of Smt Kamlesh Aggarwal (PW5) or even so testified by Smt Kamlesh Aggarwal (PW5) in the witness box.

53. Occurrence was of 13/02/2007. Smt Kamlesh Aggarwal (PW5) was examined in chief before my Ld. Predecessor on 24/02/2009 and subsequently cross examined by the Ld. Defence SC No. 23/2011 56/69 State Vs. Rajesh Kushwaha etc. Counsels on 04/01/2010. Per contra, to the case of prosecution, Smt Kamlesh Aggarwal (PW5) testified of accused Sunil in police uniform had kept knife on the neck of her husband, complainant Sh Vijay Kumar Aggarwal (now deceased). As per presented case of prosecution and Ex PW5/A, the robber who had come in police uniform had with him countrymade pistol (desi katta) and it is not the case of prosecution that such robber had put any arm (knife) on any body part of complainant Vijay Kumar Aggarwal (now deceased). As per the conviction slip of accused Uma Shanker @ Shanker, prepared by SI Rajesh Shukla (PW24), dated 07/03/2007 his age specified is 50 years as on 07/03/2007. When examined under Section 313 Cr.P.C on 02/01/2012, accused Uma Shanker stated his present age to be 55/56 years. Two of the alleged offenders, as per presented case of prosecution, were in the age group of 20 to 25 years and the other two were in the age group of 25 to 30 years. I absolutely disagree with the contention of Ld. Addl. PP for the State that by dye of hairs on the head, there was every likelihood of complainant Vijay Kumar Aggarwal (now deceased) or his wife Smt Kamlesh Aggarwal (PW5) presuming the age group of accused Uma Shanker as 25 to 30 years. SC No. 23/2011 57/69

State Vs. Rajesh Kushwaha etc. Admittedly, as on date of occurrence Smt Kamlesh Aggarwal (PW5) had two adolescent children, the twins, of age around 15 years. On 24/02/2009, Smt Kamlesh Aggarwal (PW5) specified her age as 44 years. Accordingly, Smt Kamlesh Aggarwal (PW5) was of age around 42 years on the date of occurrence. Smt Kamlesh Aggarwal (PW5) was the middle aged lady, wife of complainant Vijay Kumar Aggarwal (now deceased), the General Manager of a Private Limited Company. It is not a case of a rustic lady misjudging age of the robbers who remained at the place of occurrence for nearly 15 minutes or so. There is a great difference from the appearance, including face of a young person of age group of 25 to 30 years and middle aged person of 50 years or more. I have no reason to believe that by any figment of imagination the eye witness Smt Kamlesh Aggarwal (PW5) could have misconstrued or misjudged the age group of robbers. Even on this count, nothing was elicited by the prosecution from Smt Kamlesh Aggarwal (PW5), which could may be made the basis to believe the abovesaid assertion of Ld. Addl. PP for the State.

SC No. 23/2011 58/69

State Vs. Rajesh Kushwaha etc.

54. Smt Kamlesh Aggarwal (PW5) was candid in the course of her examination by saying that prior to 17/03/2007 police did not inform them about arrest of any accused and when they reached in the police station on their own on 17/03/2007 to find if the police has been able to find out any clue in their case then the police asked them to identify two persons sitting in the room of investigating officer. Smt Kamlesh Aggarwal (PW5) stated that there on 17/03/2007 she identified accused Uma Shanker and Sunil Kumar as robbers. Smt Kamlesh Aggarwal (PW5) blowed hot and cold in the same breath saying few minutes later that she and her husband had gone to Tihar Jail on 13/03/2007 for identification of the robbers but accused refused to join Test Identification Parade proceeding.

55. Had Smt Kamlesh Aggarwal (PW5) not known prior to 17/03/2007 about arrest of any accused, how could she have gone to Tihar Jail for the identification of the stated robbers?

56. In the course of her examination, Smt Kamlesh Aggarwal (PW5) testified that she was told by the police that one offender had SC No. 23/2011 59/69 State Vs. Rajesh Kushwaha etc. died in the encounter, one offender could not be arrested. Also, Smt Kamlesh Aggarwal (PW5) testified that she was told by the police that accused Uma Shanker was brotherinlaw (Jija) of accused Rajesh Kushwaha and that accused Rajesh Kushwaha used to visit the house of accused Uma Shanker and accused Sunil and Uma Shanker were members of the gang of the fourth accused namely Sudhir Chauhan who was killed in the encounter. Also, Smt Kamlesh Aggarwal (PW5) deposed that she was told that Sudhir Chauhan and other accused persons used to visit the house of accused Uma Shanker where planning of robbery was made with the help of accused Rajesh Kushwaha, field boy in the company of her(PW5) husband. Facts aforesaid told by police officials to Smt Kamlesh Aggarwal (PW5), formed hearsay evidence and being hit by Section 60 of Evidence Act are inadmissible in evidence. Besides, to prove such facts, no cogent evidence has been led by prosecution.

57. Arrest of accused Sunil and Uma Shanker is shrouded with mystery. No cogent evidence has been led to prove the such arrest of the accused persons at Sultanpur, U.P, as per presented case SC No. 23/2011 60/69 State Vs. Rajesh Kushwaha etc. of prosecution. All the more it has been testified by SI Rajesh Shukla (PW24) that before him on 08/03/2007 accused Sunil and Uma Shanker were produced at around 8 or 9 am by the members of the police team who had arrested and brought them from Sultanpur, U.P. No copy of daily diary has been placed on record nor proved of keeping said accused Uma Shanker and Sunil in muffled faces on their arrival in Delhi and before their production in court on 08/03/2007. Therefore, possibility cannot be ruled out that during period of their detention, accused Uma Shanker and Sunil might have been shown by the investigating officer to the witnesses, which prompted them (accused Sunil and Uma Shanker) to refuse to join Test Identification Parade. The Court is under obligation to scrutinize the evidence carefully to satisfy its conscience that there are circumstances justifying in drawing of adverse presumption on account of refusal of accused persons to participate in Test Identification Parade.

58. Refusal of accused Sunil and Uma Shanker before Sh Satish Kumar, Ld. Metropolitan Magistrate (PW16) on 13/03/2007 SC No. 23/2011 61/69 State Vs. Rajesh Kushwaha etc. vide proceedings Exts PW16/A and PW16/B accordingly cannot be made basis for drawing any adverse inference against any of these accused Sunil and Uma Shanker since there was possibility of these accused having been shown by the IO to the witnesses after their apprehension and before their such refusal to participate in Test Identification Parade.

59. In the (1) absence of specific identification features of robbers, who entered the house and committed robbery, in the statements of the material eye witnesses; (2) discrepancies and material contradictions emanating from the testimony of Smt Kamlesh Aggarwal (PW5) regarding the alleged role of accused Sunil, the weapon used, considerable difference about the age of accused Uma Shanker, to be nearing double the age of the age group of alleged robbers; all when considered in totality in the back drop of the arrest of accused Sunil and Uma Shanker being shrouded in mystery and the tainted recoveries of the part of the case properties on account of an unfair investigation, the gamut of facts and circumstances proved on record brings in the element of serious doubt SC No. 23/2011 62/69 State Vs. Rajesh Kushwaha etc. against the reliability of dock identification of accused Sunil and Uma Shanker by Smt Kamlesh Aggarwal (PW5) as the robbers who entered the house and committed robbery. Reliance placed upon the pronouncements of Hon'ble Mr. Justice Ajit Bharihoke in the case of Vinod Singh vs Government of NCT of Delhi, decided on 04/07/2011, 2011 (3) JCC 2041.

60. Another facet of the matter is the considerable improvements regarding narration of the articles robbed. Initial information received and recorded in DD No. 16A, Ex PW11/B, dated 13/02/2007 at police station Sarojini Nagar at 10.50 am is that the complainant Vijay Kumar Aggarwal (now deceased) had given information that at his house four persons had come, one wearing police uniform and three wearing civil clothes, three having revolver and one person having knife and they had given threat at their house and taken away golden chain and Rs 5,000/.

61. The time of occurrence of robbery is 7.45 am.

Information of robbery is given at 10.50 am for the first time at police SC No. 23/2011 63/69 State Vs. Rajesh Kushwaha etc. station. It is the case of prosecution that only after fatherinlaw of complainant Vijay Kumar Aggarwal (now deceased) i.e father of Smt Kamlesh Aggarwal (PW5), arrived at the spot, and as per Smt Kamlesh Aggarwal (PW5), her father, brother and sisterinlaw (bhabhi) arrived there, then only phone call was made to police and subsequently when SI Narender Kumar (PW23) arrived, then statement Ex PW5/A was given by complainant and rukka Ex PW23/A was dispatched at 12.30 pm by SI Narender Kumar (PW23) from the spot. It is proved on record accordingly that aforesaid information given and recorded in Ex PW11/B and statement Ex PW5/A were so given after due deliberation and consultation. The delay in lodging the first information report appears to have resulted in embellishment, an element of creature of after thought has crept in on account of which it has got bereft of the advantage of spontaneity and there is every likelihood of introduction of the coloured version, exaggerated account or concocted story as a result of deliberation and consultation. Considering the text of Ex PW5/A, the question which immediately comes in the mind is how would a strange robber know that a closed briefcase would be containing Rs SC No. 23/2011 64/69 State Vs. Rajesh Kushwaha etc. 5 lakhs precisely as it is inter alia mentioned in Ex PW5/A, that a robber giving hand blow on closed briefcase and said, "Isme Panch Peti Hai". Even on opening the said briefcase, as per version of Smt Kamlesh Aggarwal (PW5), the total cash amount in said briefcase was Rs 5 lakhs, neither less nor more. In Ex PW11/B, the amount robbed reported is Rs 5,000/ and within a hour and half the amount robbed is escalated to Rs 5 lakh in the briefcase and more. In Ex PW11/B, Ex PW5/A and the list of articles Ex PW5/E given on 22/02/2007 by complainant Vijay Kumar Aggarwal (now deceased) to SI Rajesh Kushwaha (PW24) there is absolutely no whisper of any voter identity card of complainant Vijay Kumar Aggarwal (now deceased) and his wife Kamlesh Aggarwal (PW5) having been so robbed. In the present set of facts and circumstances there was every possibility of the officers of investigating agency having apprehended the arrayed accused on the basis of suspicion laid by virtue of alleged call details record and having made Smt Kamlesh Aggarwal (PW5) believe in the fact situation that, it were the arrayed accused who were responsible for the crime and there upon the Voter Identity Cards Exts P3 and P4 to have been planted upon the accused SC No. 23/2011 65/69 State Vs. Rajesh Kushwaha etc. Sunil to show recoveries of part of case properties having been effected from him as well as from accused Uma Shanker so as to solve the blind case of robbery. In the course of prosecution evidence the alleged recovered cash of Rs 2,000/, Ex P5 and Rs 3,000/ Ex P6 has not been shown or put to Smt Kamlesh Aggarwal (PW5) nor it is borne out in her (PW5) evidence that the same was belonging to Smt Kamlesh Aggarwal (PW5) or her (PW5) deceased husband to be the part of her (PW5) robbed case property. Per contra Smt Kamlesh Aggarwal (PW5) elicited in her cross examination that no stolen article was recovered by police.

62. From every act of investigating agency what the Court expects is the fairness. Fairness of investigation in this case is not apparent from the face of record. Not a single article alleged to have been recovered from any of the accused has been so recovered in the presence of any independent witness. Of course, police officers at the outset cannot be said to be untrustworthy but when in a serious case of robbery with use of weapons like countrymade pistol, knife is being investigated, suspicion is laid over the fellow employee of the SC No. 23/2011 66/69 State Vs. Rajesh Kushwaha etc. complainant and his other acquaintances, in the absence of any description of any specific identification features, excepting age group of robbers who entered the house and committed robbery, what is expected by a Court from an officer of investigating agency is firstly to collect the best possible incriminating, admissible and cogent evidence at the first instance and then joining independent witness(es) in recovery of articles from the place of abode of such suspects/accused, to lend credence and avoid criticism.

63. The entire chain of sequence of occurrence viz afore elicited considerable improvements, exaggerations and due deliberations in respect of reporting of the articles and quantum of the robbed articles, non collection of the cogent evidence in the form of statements of witnesses including of the registered consumers of mobile numbers allegedly used by the suspects/accused and the call detail records with requisite certificate under Section 65B of the Evidence Act in respect of the alleged mobile numbers used by the suspects/accused, non joining of the independent witnesses to the alleged search and tainted recovery of the part of the alleged looted SC No. 23/2011 67/69 State Vs. Rajesh Kushwaha etc. articles of complainant, allegedly recovered on alleged searches of premises of accused; doubtful dock identification of alleged robbers by Smt Kamlesh Aggarwal (PW5), conjointly make it difficult for the Court to accept the existence of the factum of conspiracy inter se arrayed accused; their participation in the crime alleged, their use of weapons alleged in the commission of robbery; personation as police officer by accused Sunil Kumar Gupta and alleged recovery of the alleged looted articles from the possession of the arrayed accused in the absence of any cogent scientific evidence on record. The report, copy dated 27/10/10, Ex AX1 of Finger Print Bureau; result of examination of the two chance prints lifted from the scene of crime on comparison with the specimen finger prints of accused Sunil and Uma Shanker was found not matching, also is a pointer to the factum of innocence of the accused. Recovery of the alleged looted articles from possession of the accused persons is highly doubtful and tainted. The facts so established by the prosecution on record are not consistent with the only hypothesis of the guilt of the accused, that is to say, they are explainable to innocence of the accused as well. SC No. 23/2011 68/69

State Vs. Rajesh Kushwaha etc.

64. Elicited discrepancies have corroded the reliability, credibility and trustworthiness of the material witnesses and hence forth the prosecution case. The substratum of the prosecution case has several holes which cannot be plugged. No new story can be reconstructed by this Court.

65. Suspicion howsoever, grave it may be, cannot be a substitute for proof. There is every reasonable possibility of false implication of the accused persons. I find that the prosecution has not been successful in proving its case against the accused beyond reasonable doubt. Accused persons deserve and are given benefit of doubt and are accordingly acquitted for the offences charged. Superintendent Jail be directed accordingly to release the accused persons, if not required to be detained in any other case in jail. File be consigned to record room.




Announced in the open court                    (GURVINDER PAL SINGH)
on date  10/02/2012                            ASJ (FTC)/SD/ NEW DELHI




SC No. 23/2011                                                                69/69

Legal Document View

Unlock Advanced Research with PRISMAI

Delhi District Court

State vs . Rajesh Kushwaha Etc. on 10 February, 2012