Delhi District Court
State vs . Rama Shanker @ Pappu Etc. on 25 March, 2022
IN THE COURT OF MS. CHARU AGGARWAL
ADDITIONAL SESSION JUDGE-02: CENTRAL DISTRICT:
TIS HAZARI COURT: DELHI.
STATE VS. Rama Shanker @ Pappu etc.
CNR No. DLCT01-002141-2014
FIR No. 19/2014
PS: Old Delhi Railway Station
U/s: 392/394/395/397/412/34 IPC
(i) SC No. of the case : 28144/2016
(ii) Date of commission of offence : 16.01.2014
(iii) Name and address of accused : (I) Rama Shanker @ Pappu
S/o Sh. Sukhi Bhagat R/o
Village Baluai, Alani, Tehsil
Kashiya, Distt. Khushi Nagar,
U.P.
( Declared P.O. Vide order
dated 06.02.2021.)
(ii) Shokeen S/o Sh.
Salamuddin R/o Village
Khaliya, Distt. Bulandsher,
U.P. (Facing trial before this
Court)
(iii) Sarafat @ Bhoora S/o Sh.
Aziz R/o Village Dothal, PS
Gharmukteshwar, Distt.
Digitally signed by
CHARU
CHARU AGGARWAL
AGGARWAL Date: 2022.03.28
16:26:18 +0530
State Vs. Rama Shanker @ Pappu etc. --Page 1 of 16--
Hapur, U.P.
( Declared P.O. Vide order
dated 25.02.2019.)
(iv) Offence complained of : 392/394/395/397/412/34 IPC
(v) Plea of accused : Pleaded not guilty
(vi) Final order : Acquitted
(vii) Date of institution : 08.05.2014
(viii) Date of such order : 25.03.2022
JUDGMENT
1. Three accused namely Rama Shanker @ Pappu, Shokeen and Sarafat @ Bhoora have been sent to face trial for committing offence u/s 392/394/395/397/412/34 of Indian Penal Code (hereinafter referred to as "IPC"). During trial accused Rama Shanker @ Pappu and Sharafat were declared proclaimed offender vide order dated 06.02.2021 and 25.02.2019 respectively, passed by this Court. Now, the Court only has to examine the case qua accused Shokeen.
2. The case of the prosecution is that on 16.01.2014 complainant Manoj alongwith his friend Akhilesh was travelling in "Muradabad passenger train" from Gajrola U.P. to Delhi. 10 to 12 passengers were also travelling in the same compartment in which complainant alongwith his friend was travelling. On that day at about 11 p.m., while train was standing at Yamuna Iron Bridge, Delhi, 4-5 boys armed with knives in their hands entered in the said train and robbed the passengers. They robbed the Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date:
2022.03.28 16:26:29 +0530 State Vs. Rama Shanker @ Pappu etc. --Page 2 of 16-- complainant at the point of knife with his one black colour wallet containing some documents & cash of Rs.500/- and complainant's friend Akhilesh was also robbed with his mobile phone make LAVA & his wallet having cash of Rs.1800/-, ATM card, Voter ID card. Other passengers of the compartment/train were also looted by those boys by using criminal force and knives. Complainant said that he can identify those boys if shown to him. On these allegations, FIR of the case was registered on the same date of incident.
3. On 25.01.2014, vide DD No. 28, information was received at police station Old Delhi Railway Station (hereinafter referred to as "ODRS") regarding arrest of three accused, facing trial before the Court, u/s 41.1 D and u/s 102 Criminal Procedure Code (hereinafter referred to as "CrPC") in which they disclosed their involvement in the present case. IO of the present case with the permission of the concerned Court arrested the accused persons and completed the formalities of their arrest. On 29.01.2014, TIP of accused persons was conducted in which complainant Manoj and his friend Akhilesh correctly identified all three accused in Tihar jail. During investigation, mobile phone of victim Akhilesh(complainant's friend) was recovered from the possession of accused Rama Shanker. Statements u/s 161 CrPC of other passengers of the train were recorded.
4. After completion of investigation, chargesheet was filed by the IO in the court of concerned Ld. Metropolitan Magistrate (MM), who after compliance of Section 207 IPC, committed the case to Sessions Court which was marked to this Court.
5. Vide order dated 07.07.2014, Charge u/s 395/34 IPC was Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.28 16:26:37 +0530 State Vs. Rama Shanker @ Pappu etc. --Page 3 of 16-- framed against all the accused persons, Charge u/s 397/34 IPC was framed only against accused Shokeen AND Charge u/s 412 IPC was framed only against accused Rama Shanker, to which the accused persons pleaded not guilty and claimed trial. Thereafter, matter was fixed for Prosecution Evidence.
6. Prosecution, in order to prove its case, has examined as many as 20 witnesses.
PUBLIC WITNESSES
7. PW-1 is complainant/victim Manoj, who has stated that in the month of January, 2014 he was travelling in "Muradabad Passenger Train" from Gajrola to Old Delhi Railway Station, while the train was stationed at Lohe Ka Pul, Yamuna Bridge,Delhi, 8-10 persons entered into the train and robbed him with cash of Rs.500/-. This witness has not identified accused Shokeen. Ld. Addl. PP cross-examined the witness on the point of identification of the accused persons but despite specific suggestion to the witness by Ld. APP he could not identify them. During his cross-examination conducted by Ld. Addl. PP he voluntarily stated that at the time of incident all the assailants were wearing monkey caps. PW1 has stated that he alongwith his friend Akhilesh went to Delhi Jail for identifying the accused persons but prior to going to jail, photographs of the accused persons were shown to them in the police station and they were asked to identify the accused persons as assailants.
8. PW2 is Akhilesh, complainant's friend, the other victim of the crime, who has also stated that in the year 2014 he alongwith his friend Manoj was coming to Delhi via "Muradabad Passenger express". Apart Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.28 16:26:46 +0530 State Vs. Rama Shanker @ Pappu etc. --Page 4 of 16-- from them, 10-15 other passengers were also travelling in the same compartment. On the date of incident at about 11 p.m., while the train was stopped at Yamuna iron bridge, 4-5 persons aged about 20-30 years wearing monkey caps entered in the train having knives with them. Out of those boys, some boys snatched the mobile phone make of LAVA having SIM of Airtel No. 96342061 from this PW Akhilesh. They also snatched his wallet containing ATM card, ID card, cash of Rs.1500/- to Rs.2000/- . Other passengers were also looted by those boys. He has further stated that after 10-15 days of the incident his friend Manoj received a phone call from police that mobile phone of this PW has been recovered. Thereafter, this PW alongwith Manoj went to PS ODRS and on the same day they were taken to Tihar Jail for identification of the accused persons where he identified them. He has stated that all the assailants acted immediately, therefore, he only could had fleeting glance of the assailants thus, he stated that he can not identify accused Shokeen in the Court. He has correctly identified his mobile phone produced in the Court. He has admitted that the TIP proceedings of accused persons bear his signatures. He was also cross-examined by Ld. APP on the point of identification of the accused persons but despite cross-examination he could not identify the accused Shokeen.
9. PW3 is Mohd. Sajid, another victim of the crime, who has stated that on 15.01.2013 he was travelling in "Muradabad Passenger train"
to Delhi. At about 11 p.m., while the train stopped at Yamuna Bridge, 4-5 boys boarded the train/compartment in which they were travelling. Out of those boys, three were having knives in their hands and some were wearing Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.28 16:26:54 +0530 State Vs. Rama Shanker @ Pappu etc. --Page 5 of 16-- masks. Two boys came near to this PW and tried to drag him. On resistance, one came from behind, caught his neck and gave knife blow on left side of his waist. Thereafter, he became unconscious and after few minutes when he regained his consciousness he found his mobile phone make Samsung Galaxy Note II and another Chinese mobile phone were missing. Those boys also robbed other passengers of the train. This PW has also not identified accused Shokeen in the court, therefore, he was cross-examined by Ld. APP but despite cross-examination he could not identify him.
10. PW4 is Mohd. Zulfikar, one of the victim of the incident. He has stated that on 15.01.2013 he was travelling in "Muradabad Passenger Train" from Gajrola, U.P. To Delhi. At about 11/11.30 p.m., when the train reached at Yamuna Bridge, Delhi, 7-8 persons in muffled face armed with chhuri and knives entered into the coach and asked the passengers to give the articles they were having with them otherwise, they would kill them. On resistance they stabbed on the left hand of this PW with knife, therefore out of fear, he and other passengers handed over their articles to those boys. The mobile phone of Micromax of this PW was robbed by the assailants. This PW has also not identified accused Shokeen, therefore, he was cross- examined by Ld. APP but during cross-examination also he failed to identify him.
11. PW5 is Dev Raj, victim of the crime, who has stated that on 15.01.2014 he alongwith other passengers was travelling in "Muradabad passenger train" from Gajrola, U.P. On that day, at about 11.10 p.m., when the train reached at Yamuna Bridge Delhi, 5-6 other boys boarded the train, Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.28 16:27:02 +0530 State Vs. Rama Shanker @ Pappu etc. --Page 6 of 16-- out of whom two were having knives in their hands. Those boys robbed Rs.350/- from this PW at the point of knife and they also robbed other co- passengers. He has stated that the accused present in the Court has similar physique as of accused persons. He has identified accused Sharafat (P.O.) as one of the offender but failed to identify other accused persons. He was also cross-examined by Ld. APP on the identity of the accused Shokeen but he could not identify him.
12. PW15 is Jai Shanker, father of PW Akhilesh Kumar, who has stated that on 15.01.2014, his son Akhilesh alongwith his friend Manoj was travelling in train. Later on, this PW came to know from his son that his mobile phone has been robbed in train at Yamuna Bridge, Delhi. The said mobile phone was in the name of this witness.
13. PW16 is Sh. Muzaffar Ali, the seller of mobile phone make LAV who has proved the original bill of the said mobile as Ex. PW16/A. Police witnesses
14. PW6 is SI Suresh Kumar who on 21.03.2014 was posted at police station ODRS, to whom the investigation of this case was handed over. He has stated that earlier the case was being investigated by SI Bhim Sain. This PW got transferred the case property from police station Crime Branch to police station ODRS. He collected the CDR of mobile phone bearing No. 9810646135 of Airtel. The said mobile was found in the name of father namely Jai Prakash of victim Akhilesh. He made enquiries regarding the ownership of the said mobile. He recorded the supplementary statement of victim Dev Raj who was called by this PW to Tis Hazari Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.28 16:27:10 +0530 State Vs. Rama Shanker @ Pappu etc. --Page 7 of 16-- Courts for identification of accused persons. He tried to trace other assailants also but could not be succeeded.
15. PW7 HC Naresh who on 25.01.2014 was posted at Police station ODRS and joined the investigation with IO ASI Bhim Sain and constable Amit. He has stated that he reached at room No. 367, Tis Hazari Courts where all the three accused were produced and in the presence of this PW accused persons were arrested and their arrest memos Ex. PW7/D to Ex. PW7/F were prepared. Their disclosures were recorded vide memo Ex. PW7/A to Ex. PW7/C.
16. PW8 is HC Jag Narayan who deposed that on 24.01.2014 he was posted at police station Crime Branch. He has stated that on the said day, ASI Mukesh Tyagi deposited five mobile phones in the Malkhana of police station Crime Branch vide entry No. 1881 in register No. 19 (Ex. PW8/A). On 12.04.2014 mobile phone make LAVA was sent to police station ODRS through constable Ram Lal vide RC No. 103/21 (Ex. PW8/B).
17. PW11 is HC Surender Singh who on the date of incident was posted as duty officer in police station ODRS. He registered the FIR of this case on computer Ex. PW1/A on the basis of ruqqa Ex. PW11/B.
18. PW12 is ASI Raj Bir Singh who on 24.01.2014 was posted at Crime Branch. He has stated that during the period of 2014 the police of Crime Branch was searching the assailants who used to commit robbery in trains. On 24.01.2014, secret information was received at Crime Branch office that some of those assailants would come at red light Kodia Pul to sell the stolen mobile phones can be apprehended. The information was Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date:
2022.03.28 16:27:21 +0530 State Vs. Rama Shanker @ Pappu etc. --Page 8 of 16-- given by this PW to inspector Sushil Kumar, who passed the information to concerned ACP. Inspector Sushil constituted a raiding party headed by ASI Mukesh Tyagi, this PW, HC Rishi Kumar, HC Shiv Charan, Constable Pradeep and constable Satbir (driver). 4/5 public persons were asked to join the raiding party but all refused to join the same. On that day, at the instance of secret informer all three accused were apprehended. From the personal search of accused Rama Shanker, one mobile phone make LAVA having sim card of Airtel was recovered. From accused Shokeen, one small mobile phone make Carlvo and one grey colour Samsung mobile phone were recovered and from accused Sharafat two mobiles of Samsung were recovered. The mobiles were seized by ASI Mukesh Tyagi vide seizure memo Mark PW12/A to Ex. PW12/C. The accused were arrested u/s 41 CrPC vide arrest memos Mark PW12/D to Mark PW12/E.
19. PW13 ASI Mukesh Tyagi who on 24.01.2014 was posted at Crime Branch. He has stated that during the period of 2014 the police of Crime Branch was searching the assailants who used to commit robbery in trains. On 24.01.2014, secret information was received at Crime Branch office that some of those assailants would come at red light Kodia Pul to sell the stolen mobile phones can be apprehended. The information was given to inspector Sushil Kumar, who passed the information to concerned ACP. Inspector Sushil constituted a raiding team headed by this PW and other members being PW12, HC Rishi Kumar, HC Shiv Charan, Constable Pradeep and constable Satbir (driver). 4/5 public persons were asked to join the raiding party but all refused to join the same. On that day, at the instance of secret informer all three accused were apprehended. From the Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.28 16:27:34 +0530 State Vs. Rama Shanker @ Pappu etc. --Page 9 of 16-- personal search of accused Rama Shanker, one mobile phone make LAVA having sim card of Airtel was recovered. From accused Shokeen, one small mobile phone make Carlvo and one grey colour Samsung mobile phone were recovered and from accused Sharafat two mobiles of Samsung were recovered. The mobiles were seized by this PW vide seizure memo Mark PW12/A to Ex. PW12/C. The accused were arrested u/s 41 CrPC vide arrest memos Mark PW12/D to Mark PW12/E.
20. PW14 HC Rishi Kumar, who on 24.01.2014 was posted at Crime Branch. He has stated that during the period of 2014 the police of Crime Branch was searching the assailants who used to commit robbery in trains. On 24.01.2014, secret information was received at Crime Branch office that some of those assailants would come at red light Kodia Pul to sell the stolen mobile phones can be apprehended. The information was given to inspector Sushil Kumar, who passed the information to concerned ACP. Inspector Sushil constituted a raiding party headed by ASI Mukesh Tyagi and other members being this PW, PW12, HC Shiv Charan, Constable Pradeep and constable Satbir (driver). 4/5 public persons were asked to join the raiding party but all refused to join the same. On that day, at the instance of secret informer all three accused were apprehended. From the personal search of accused Rama Shanker, one mobile phone make LAVA having sim card of Airtel was recovered. From accused Shokeen, one small mobile phone make Carlvo and one grey colour Samsung mobile phone were recovered and from accused Sharafat two mobiles of Samsung were recovered. The mobiles were seized by ASI Mukesh Tyagi vide seizure memo Mark PW12/A to Ex. PW12/C. The Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.28 16:27:41 +0530 State Vs. Rama Shanker @ Pappu etc. --Page 10 of 16-- accused were arrested u/s 41 CrPC vide arrest memos Mark PW12/D to Mark PW12/E.
21. PW18 is constable Amit Kumar who on 25.01.2014 was posted at police station ODRS and joined investigation with IO SI Bhim Sain. IO SI Bhim Sain interrogated all the accused persons in the presence of this PW and completed the formalities of their arrest.
22. PW19 is retired SI Rameshwar Dass who has stated that on 15.01.2014, he was posted at police station ODRS. On receipt of DD No. 22 A, he alongwith constable Balwinder went to platform No. 14 and 15 where complainant met him and gave his statement Ex. PW1/A. On the basis of said statement ruqqa Ex. PW19/A was prepared by this PW and handed over to constable Balvinder who accordingly went to police station and got registered the FIR from duty officer. Constable Balvinder came back to the spot and handed over copy of FIR and original ruqqa to this PW. He prepared site plan Ex. PW19/B. Further investigation is stated to have been handed over to IO SI Bhim Sain on 18.01.2014.
23. PW20 is SI Bhim Sain who has deposed that on 18.01.2014 further investigation was handed over to him. On 24.01.2014 he received information vide DD No. 8 A from police station Crime Branch regarding arrest of accused persons and their disclosure regarding their involvement in the commission of offence of this case. On 25.01.2014 constable Amit and HC Naresh joined the investigation of the present case with this PW in whose presence accused persons were arested by this PW. He moved an application for TIP of accused persons. He has stated that PW Manoj and Akhilesh identified all the three accused correctly during TIP proceedings.
Digitally signed by CHARU CHARU AGGARWAL
AGGARWAL Date:
2022.03.28
16:27:48 +0530
State Vs. Rama Shanker @ Pappu etc. --Page 11 of 16--
He got transferred the case property from Crime Branch to Malkhana of ODRS.
Formal witnesses :
24. PW9 is Sh. Ajay Kumar Malik, Ld. Metropolitan Magistrate (MM) in whose presence, TIP of the accused persons was conducted. He has stated that three accused were produced before him on 29.01.2014 in muffled face. He explained the meaning of TIP to them. PW Manoj and Akhilesh correctly identified all the three accused persons in the presence of this PW. The TIP proceedings/order of this PW is Ex. PW9/B to PW9/D.
25. PW10 is Surender Kumar, Nodal Officer, who brought the record of mobile bearing No. 963420610 and 9810646135. The customer application form and CDR of both the numbers brought by this PW are Ex. PW10/A to Ex. PW10/E. Medical witness
26. PW17 is Dr. Preeti Prabhakar, CMO, Aruna Asaf Ali Hospital who has proved the MLC of the injured as Ex. PW17/A. The witnesses of the prosecution were cross-examined by Ld. counsel for accused Shokeen.
27. After completion of prosecution evidence, statements U/s 313 Cr.PC of accused Shokeen was recorded in which he stated that during TIP proceedings he was identified by the victims since his photographs were shown to the victims prior to the TIP. He denied to give any disclosure statement to the police. He has stated about his false implication in the present case. Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date:
2022.03.28 16:27:58 +0530 State Vs. Rama Shanker @ Pappu etc. --Page 12 of 16--
28. I have heard the arguments of Ld. APP and Sh. Sandeep Gupta, Ld. LAC for accused Shokeen.
29. Ld. APP has argued that charge u/s 395/34 IPC and 397 IPC has been proved against the accused Shokeen since all the PWs have supported the case on the occurance and during TIP proceedings accused Shokeen was correctly identified by PW1 Manoj and PW2 Akhilesh. It is argued that PW1 and PW2 both have admitted during their chief examination that TIP proceedings bear their signatures, therefore, the case of the prosecution stands proved against accused Shokeen and he be accordingly convicted for the offence charged against him.
30. Sh.Sandeep Gupta, Ld. LAC has argued that prosecution has miserably failed to prove its case beyond reasonable doubt since none of the victim/public witness has identified the accused Shokeen as assailant of the crime. He has also argued that identification of accused Shokeen during TIP proceedings by no stretch of imagination can be made base to convict the accused since TIP is procedure of investigation and identification of the accused by the witness during investigation cannot be used by the Court at the final stage.
31. I have considered the arguments advanced by Ld. APP for State and Ld. Legal Aid Counsel.
32. The star witness of the prosecution are PW1 to PW5 who are the victims of the crime. They all are consistent on the incident that in January, 2014 they were travelling in "Muradabad Passenger Train" and while the train was stationed at Yamuna Iron Bridge, Delhi, 4-5 boys boarded the train and robbed them. The testimony of these PWs on the Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.28 16:28:04 +0530 State Vs. Rama Shanker @ Pappu etc. --Page 13 of 16-- occurrence is consistent and stable, therefore, prosecution has succeeded in proving the occurrence of incident with PW1 to PW5.
However, in a criminal case the identification of accused persons facing trial before the Court also plays a vital role. In the case under disposal, none of the star witness/victim of the prosecution has identified accused Shokeen as assailant of the crime who robbed them. Ld. Addl. PP has cross-examined all these PWS on the identification of accused Shokeen but despite their cross-examination they all refused to identify accused Shokeen. Though, PW5 Dev Raj, has stated that the accused present in the Court has the same physic as the assailants of the crime but he also stated that except accused Sarafat @ Bhoora, he cannot identify other two accused. In view of the statement of PW5 that he cannot identify accused Shokeen, his statement that the accused has the same physic as of the assailants of the crime becomes inconsequential.
33. The argument of Ld. APP that accused Shokeen was correctly identified by PW1 Manoj and PW2 Akhilesh, both victims, during TIP proceedings has proved the case of the prosecution is not tenable. In "Umesh Chander and Others Vs. State of Uttrakhand SLP (Criminal) appeal No. 801/21" decided by Hon'ble Apex Court on 11.08.2021, it has been observed that mere identification of accused in TIP cannot form substantive basis for his conviction unless there are other facts and circumstances corroborating the identification. In the case in hand, all the victims have failed to identify accused Shokeen in the Court. Mere identification of accused Shokeen by PW1 and PW2 during TIP proceedings is not sufficient to record his conviction. Ld. LAC has rightly Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.28 16:28:13 +0530 State Vs. Rama Shanker @ Pappu etc. --Page 14 of 16-- argued that TIP is procedure of investigation only to ensure that investigation is going on in right way. Otherwise also, in the case in hand, accused Shokeen was arrested in pursuance of his disclosure statement recorded by the police of Crime Branch regarding his involvement in the present case. In pursuant his disclosure statement, nothing, be it robbed articles or the weapon of offence, was recovered from him, therefore, mere his identification by PW1 and PW2 during investigation, in TIP proceedings, is not sufficient to record his conviction.
34. It is also relevant to note here that in "Umesh Chander (supra)" , the Hon'ble Apex Court has also observed that if the prosecution succeeds in proving that the TIP has been held in accordance with law then the question of considering any objection to the same arises. In the present case before this Court, the testimony of PW9, Ld. MM, who conducted the TIP of accused persons proves that the TIP of accused persons was conducted in accordance with law but the said TIP cannot be used against the accused in view of the statement given by PW1 in his evidence to the effect that before going for TIP, the photographs of the accused persons were shown to him & his friend in the police station and they were asked to identify them in the jail as assailants of the crime. This statement of PW1 is duly corroborated with the testimony of PW2 who has also stated that prior to going for TIP to Tihar Jail, he & PW1 went to police station. Moreover, PW1 to 4, all have stated in one voice that at the time of incident all the assailants were wearing the masks/monkey caps. The prosecution has failed to prove the identity of the accused persons from the testimony of PW1 to PW5 against accused Shokeen and on this ground accused Shokeen Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.28 16:28:20 +0530 State Vs. Rama Shanker @ Pappu etc. --Page 15 of 16-- deserves benefit of doubt. Accordingly, he is acquitted for the offence u/s 395/34 IPC and 397 IPC charged against him. His bail bonds are cancelled. Surety is discharged. Accused is directed to furnish fresh bail bond to the tune of Rs.10,000/- in compliance of Section 437 A CrPC at the earliest.
File be consigned to record room.
Digitally signed by CHARU CHARU AGGARWAL
AGGARWAL Date: 2022.03.28
(Announced in the open court 16:28:27 +0530
on 25.03.2022) (Charu Aggarwal)
ASJ-02, Central,
Tis Hazari Courts, Delhi.
State Vs. Rama Shanker @ Pappu etc. --Page 16 of 16--