Delhi District Court
State vs 1 Nitesh @ Lala, (A-1) on 13 October, 2015
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
Unique Identification No. 02404R0409952014 Digitally
Sessions Case No. 07/1/15 signed by
FIR No. 749/14
MANOJ MANOJ JAIN
Date:
PS Subhash Place JAIN 2015.10.13
U/s 392/394/397/411/34 IPC 15:44:04
+0530
State versus 1 Nitesh @ Lala, (A-1)
Son of Sh. Kaushal Kumar
Resident of H.No.G-414,
JJ Colony, Shakur Pur, Delhi.
2 Nazir, (A-2)
Son of Sh. Aslam
Resident of H.No. G-454,
JJ Colony, Shakur Pur, Delhi.
3 Sunil @ Mamaria, (A-3)
Son of Sh. Nateshan
Resident of H.No. F-585,
JJ Colony, Shakur Pur, Delhi.
Date of institution in Sessions Court: 21.02.2015
Date of conclusion of arguments : 01.10.2015
Date of pronouncement of judgment: 13.10.2015
Memo of Appearance:
Sh. Sanjay Jindal, learned Addl. P.P. for State
Sh. Uday Pratap, learned defence counsel for A1.
Sh. Himanshu Buttan, learned defence counsel for A2.
JUDGMENT
1 All the three accused have been sent-up to face trial for commission of offences u/s 392/394/397/411/34 IPC.
2 Case of the prosecution, briefly stated, is to the effect that on 21/08/2014, complainant Vinod (PW2) and his three friends i.e. Ranjan Kumar FIR No. 749/14 PS Subhash Place (State Vs. Nitesh @ Lala etc) Page 1 of 13 (PW4), Chandan (PW3) (son of Chitranjan Thakur) and Chandan (son of Nagender Mehto) had come to Shakur Pur. From there, they came to Ambedkar Park. While they were sitting in said park, at about 4.30 p.m., accused Sunil @ Mamaria (A3) came there and demanded Rs. 50/- from complainant Vinod on the pretext of buying liquor. When Vinod refused to accede to such request, he threatened him by claiming that he did not know him and that he was a ruffian of the area. He then called his three other friends i.e. accused Nitesh @ Lala (A1) and Nazir (A2) and Chhotu. A3 took out one chhura (knife) from his pocket and complainant and his three friends were threatened and robbed as under:
S.No Articles robbed From
.
1 Mobile phone make Micromax PW2 Vinod
2 Mobile phone make Karbon PW4 Ranjan
3 Mobile phone make Karbon and cash PW3 Chandan
amount of Rs. 1,000/-
4 Cash amount of Rs. 1,000/- Chandan son of
Nagender Mehto
3 Thereafter, all the accused gave them slaps and fled away with the
booty.
4 Quite surprisingly, complainant Vinod was, somehow, still able to
inform the police by making a call from his mobile no. 8510836320 which otherwise had been looted away. On the basis of said information, SI Baljeet along with Ct. Ajay Kumar reached said park and met complainant Vinod and his friends who claimed that they could identify all those four robbers. On the basis of report of complainant, FIR No. 749/14 was recorded by PS Saraswati Vihar.
5 As per the case of prosecution, on 24/08/2014, all the aforesaid public witnesses met SI Baljeet and other police officials near Samrat Cinema. They all reached same Park where at the instance of complainant party, A1 Nitesh @ Lala and A2 Nazir were apprehended. From the possession of A1 Nitesh @ Lala, Karbon mobile belonging to PW4 Ranjan was recovered. Micromax mobile phone of complainant Vinod was recovered from the possession of A2 Nazir.
FIR No. 749/14 PS Subhash Place (State Vs. Nitesh @ Lala etc) Page 2 of 136 As far as A3 Sunil @ Mamaria is concerned, he moved an application before the Court and desired to surrender. He was accordingly, with the permission of the Court, arrested on 02/09/2014 and pursuant to his police custody remand, one mobile phone Karbon K9 was recovered on 04/09/2014 from his H.No. E-585, JJ Colony, Shakur Pur, Delhi. Chhura was also recovered.
7 As per the investigation, the name of fourth accomplice was Chhotu but there was no clue about him and he could not be apprehended for want of complete particulars and identity details.
8 Curiously enough, TIP of accused and of case property could not be conducted as all the said four public witnesses, who had been working as casual workers at Lawrence Road, left their last known address and were not even found available at their native address of Bihar.
9 It is in these circumstances that charge-sheet was filed before the concerned Magisterial Court on 25/11/2014. Case was ordered to be committed to the Court of Sessions vide order dated 16/02/2015.
10 Case was received on allocation by this Court on 21/02/2015.
11 Arguments on charge were heard and all the three accused were charged u/s 392/34 IPC. Simultaneously, all the three accused were also separately charged u/s 411 IPC. As far as accused A3 Sunil @ Mamaria was concerned, he was also, additionally, charged u/s 397 IPC. All the three accused pleaded not guilty and claimed trial.
12 Prosecution was directed to adduce evidence and has examined eight witnesses who can be categorized as under:-
Public witnesses:
i) PW2 Vinod (complainant/victim)
ii) PW3 Chandan son of Sh. Chitranjan Thakur (victim) FIR No. 749/14 PS Subhash Place (State Vs. Nitesh @ Lala etc) Page 3 of 13
iii) PW4 Ranjan (victim) Police witnesses
i) PW1 SI Baljeet Singh (Investigating Officer)
ii) PW5 Ct Ajay Kumar (who got registered the FIR)
iii) PW6 Ct Parvesh (witness to recovery dated 24.08.2014)
iv) PW7 HC Ram Pal (witness to recovery dated 24.08.2014)
v) PW8 HC Santosh Kumar (Duty Officer)
13 All the accused, in their respective statements u/s 313 Cr.P.C., pleaded innocence and claimed that they had been falsely implicated. They did not desire to lead any evidence in defence.
14 I have heard learned Addl. P.P. and learned defence counsels and carefully perused the entire material available on record.
15 Sh. Jindal has contended that prosecution has been able to prove its case to the hilt. He has contended that the testimony of all the three public witnesses clearly indicate the complicity and involvement of all the three accused persons. He has also contended that even the robbed mobiles phones were recovered during the investigation and there is no reason whatsoever to disbelieve them. He has contended that minor contradictions and infirmities can appear in any criminal trial and there is no material infirmity or grave contradiction which may create any sort of doubt or distrust in the case of the prosecution.
16 Sh. Himanshu Buttan has defended A2 Nazir and Sh. Uday Pratap Singh has defended A1 Nitesh @ Lala. They both have claimed that prosecution case is completely false and manufactured and accused persons have been falsely implicated.
17 As per defence counsels, there is nothing on record which may suggest that accused had been apprehended at the instance of complainant party. They have claimed that there is no judicial TIP either and, therefore, all the FIR No. 749/14 PS Subhash Place (State Vs. Nitesh @ Lala etc) Page 4 of 13 accused persons cannot be said to be connected with the incident of robbery in question. It has also been claimed that complainant party has not given any ownership proof with respect to the mobile phones in question. They have also expressed their surprise as to how these mobile phones did not contain any SIM card at all. It has also been argued that no independent witness was joined during the investigation and it is quite evident from the evidence appearing on record that when A1 Nitesh @ Lala and A2 Nazir were allegedly apprehended on 24/08/2014, neither the complainant nor his said three friends were with the police party.
18 Defence has also claimed that there are material contradictions which go to the root of the matter. Sh. Buttan has also supplemented that IO SI Baljeet Singh has shown audacity of maneuvering with various documents even after the same were filed in the court.
19 I have carefully scrutinized the testimony of all the aforesaid public witnesses and also of SI Baljeet Singh in particular.
20 I am of the definite opinion that SI Baljeet Singh did not show the requisite seriousness in the matter and the investigation is palpably lackluster and slipshod. I.O. should have shown extra concern particularly keeping in mind the poor economic condition of the complainant party. Needless to say that because of the faulty and casual investigation, I am left with not much of the options. Reasons would become evident once I discuss the evidence of said public witnesses and also of SI Baljeet Singh.
21 Complainant i.e. PW2 Vinod has deposed that he along with his three friends were sitting in Ambedkar Park, Shakur Pur and at about 4.00 PM/4.30 PM, one person came near to them and asked them to give Rs. 50/- as he wanted to consume liquor. When they refused, that person threatened them claiming that "aap mujhe jaante nahi ho, main abhi do din pehle hee jail se chootkar aaya hoon". Thereafter, said person called 5-6 persons who were sitting in another side of the park and then they all started beating them and took away his mobile FIR No. 749/14 PS Subhash Place (State Vs. Nitesh @ Lala etc) Page 5 of 13 phone of Micromax and cash amount of Rs. 2,000/-. He also deposed that one Karbon mobile and Rs. 1,000/- were taken by those persons from the pocket of Chandan and one mobile phone make Karbon was taken out by them from the pocket of Ranjan. After committing robbery, all those persons fled away from the spot. Police came at the spot and made inquiries from him and also recorded his statement. He has proved his statement as Ex. PW1/B. 22 So far so good.
23 PW2 Vinod further deposed that he was joined in the investigation subsequently and was called at PS where he identified all the accused persons who had committed robbery. He deposed that SI Baljeet had apprised him that his robbed mobile had also been recovered and he also identified the same at police station. When he was asked to identify those accused persons, he could identify only one person i.e. accused Nazir (A2) and claimed that Nazir was the one who had demanded money from him and had shown them knife. He was found unsure about other persons. Surprisingly, he claimed that he could only tell about that person who had committed robbery on his person and he could not see other persons because when his other friends were robbed, he had come out of the park. Certain Court questions were also put to him in order to ascertain as to whether his mobile phone was having any SIM card or not but he claimed that his mobile was not containing any SIM car and he only used the same for listening songs/music. Mobile phone of Micromax was also produced during the trial and shown to him and he identified the same as Ex. P1. Naturally, since his evidence was not in consonance with the case of prosecution, he was cross- examined by the prosecution. However, before referring to such cross- examination, I would like to highlight some of the incongruous points:-
a) Firstly, as per the case of prosecution, it was accused Sunil @ Mamaria (A3) who had demanded Rs. 50/- and then had shown the knife but according to PW2 Vinod, it was accused Nazir (A2).
b) Secondly, as per the case of prosecution, there were four persons involved in the incident of robbery but if PW2 Vinod is to be believed, then there were seven persons.FIR No. 749/14 PS Subhash Place (State Vs. Nitesh @ Lala etc) Page 6 of 13
c) Thirdly, during the investigation, PW2 Vinod had claimed that he could identify all the accused persons but in his deposition before the Court, he claimed that he could identify only that person who had robbed him and he did not see other robbers as by that time, he had come out of the park.
d) Finally, as per the case of prosecution, two of the robbers i.e. A1 Nitesh @ Lala and A2 Nazir were apprehended on 24/08/2014 when all the said four public persons and police party had apprehended them from same Ambedkar Park but as per PW2 Vinod, nothing of that sort had happened and rather they were called at the PS where they had identified all the accused persons as well as mobiles.
24 Obviously, all the aforesaid deviations are very material and have created a doubt in the authenticity of the case of prosecution.
25 Let me now see as to what PW2 Vinod has to offer when he was cross examined by State. In his such cross-examination, when he was read over his statement Ex. PW1/B, he admitted that it was correct that he had told the police that he could identify all the accused persons and he also confirmed that there were total four such persons who had committed robbery. To my surprise, he also claimed that due to lapse of time, he had forgotten the details in this regard. When leading questions, one after the other, were put to him by prosecution, he instantly got wisdom from somewhere and admitted that two accused persons i.e. A1 Nitesh @ Lala and A2 Nazir had been apprehended from a park. However, despite such cross-examination, he failed to identify any other accused except for A-3 Sunil.
26 In his cross-examination conducted by defence, he claimed that there were other persons in the park but he did not raise any shouts at the time of incident. PW2 Vinod was found very specific and categoric and revealed that he had identified his mobile at PS only and SI Baljeet Singh had shown him 10 mobile phones, out of which, he was able to identify his mobile. Surprisingly, he also claimed in his such cross-examination that he did not know as to from where accused Nazir (A2) was arrested by the police. According to him, the police vehicle had come at the construction site where he used to work as labourer and took them to PS for identification of accused and then SI Baljeet had shown him 7-8 people and asked him to identify those persons who had robbed his mobile FIR No. 749/14 PS Subhash Place (State Vs. Nitesh @ Lala etc) Page 7 of 13 and then he had identified accused Nazir (A2). According to his deposition, he kept on going to PS for 10-15 days but since there was no progress in the matter, he stopped going to PS and returned to Bihar. Naturally, his deposition clearly indicates that the documents prepared by the prosecution on 24/08/2014 are nothing but bogus. According to these documents, A1 Nitesh @ Lala and A2 Nazir were apprehended by the police at the instance of complainant party and mobile phones were also recovered from their possession but complainant Vinod has belied such version altogether as according to him, he was shown the offenders as well as the mobiles at PS and he did not know from where those accused were apprehended and when.
27 Interestingly, PW2 Vinod had only one mobile which was robbed away but Vinod had also given his mobile number as 08510836320. His such mobile number is mentioned in the FIR itself. When he was robbed, he also informed the police and accordingly DD No. 30A was recorded. Such DD No.30A has been proved as Ex.PW1/A and even as per such DD, the police had been informed by the caller from said mobile number only i.e. 08510836320. It is quite perplexing. It rather shows that Vinod was having a mobile with SIM card whereas, he has point-blank refused to own and possess any SIM when a specific court question was put. It is thus quite bewildering as to how Vinod was able to make a call to the police, if his solitary mobile phone had been already robbed away. He never claimed that he possessed two mobiles. No call detail record of such mobile number was collected by the police. No ownership details of such alleged robbed mobiles have seen the light of the day. It is also not clear as to which accused had shown knife-whether it was A3 Sunil @ Mamaria or A2 Nazir as State did not make any endeavour to properly elucidate such fact.
28 I have also seen the testimony of other two victims i.e. PW3 Chandan and PW4 Ranjan. They both have pointed out towards all the three accused persons and have also identified them but there is a very big question mark over the crucial fact of apprehension of accused A-1 & A-2 at the instance of such public persons. As already noticed above, as per the explicit case of prosecution, A-1 & A-2 were arrested from the same park at the instance of said public persons. However, PW3 Chandan has categorically claimed that he did not know FIR No. 749/14 PS Subhash Place (State Vs. Nitesh @ Lala etc) Page 8 of 13 as to from where police had arrested accused. He has very firmly deposed that accused had not been arrested at his instance at all. He also damaged the case of prosecution by claiming that no mobile phone was recovered from the accused in his presence. He also deposed that at PS, all the three accused persons were shown to him one by one and then he identified them. Such claim of PW3 Chandan is very awkward.
29 All the three accused were not apprehended in one go.
30 A-1 & A-2 were allegedly arrested on 24.08.2014 and A-3 was arrested on 02.09.2014 when he surrendered before the court.
31 They all were never together at PS at any point of time and, therefore, testimony of PW3 Chandan has created a strong doubt in the case set up by the prosecution as he is, somehow, very sure that he had seen all the three accused at PS and then he had identified them.
32 PW3 Chandan also does not have any documentary proof to show that he was owner of mobile phone in question. Interestingly, PW3 Chandan was shown one mobile phone make Karbon K-9 and he identified the same. It was given exhibit number as Ex. P-2 but later on, on the verbal request of prosecution, this witness was permitted to be re-examined and then he identified another mobile phone as his. He claimed that he identified wrong phone as both the phones were of same model and colour. This also creates a doubt in the case of prosecution.
33 There is one atypical aspect of the case which I cannot resist commenting upon. As per the charge-sheet, TIP of the case property could not be held as all the four public witnesses had left their last known address and their present whereabouts were not known. If the prosecution case is to be believed then A-1 & A-2 had been apprehended at the instance of all such public witnesses and in their presence only, two such stolen mobile phone were recovered. Memos in this regard are Ex. PW1/E and Ex. PW1/F. When police seized those mobile and it merely mentioned its make and color. No necessity was felt of FIR No. 749/14 PS Subhash Place (State Vs. Nitesh @ Lala etc) Page 9 of 13 mentioning its IMEI numbers. Naturally, if the mobile is of same make and same color then it is virtually impossible for anyone to identify the mobile phone unless there is any other special identification mark. The only proper and logical mode of identification is to cross-check and tally the IMEI number. Here, nobody knows as to what was the IMEI number of said two mobile phones which were seized by the police on 24.08.2014. Moreover, if at all, these two mobile phones had been seized at the instance of complainant party then would someone explain as to where was the requirement of holding of any TIP of case property? Moreover, if these public witnesses were present with the police team at the time of such alleged recovery dated 24.08.2014 then surely IO should have obtained their signatures on the seizure memos as well as corroboration. Substantiation from independent corner always gives strong impetus to the case of prosecution. It is not comprehensible as to why IO did not ask these public witnesses to witness such seizure memos. Therefore also, I am not ready to buy the theory of apprehension of A-1 & A-2 at the instance of complainant party on 24.08.2014.
34 Similarly, PW4 Ranjan has though identified all the three accused persons yet fact remains that according to him, he had also seen the accused persons at PS only after the alleged incident. He claimed that no accused was ever arrested by the police at his instance. He also claimed that he did not know as to from where the police had recovered those mobile phones. When this witness was grilled by the prosecution, he claimed that on 24.08.2014, police had arrested accused Nazir and Nitesh from same park and he also admitted about recovery of mobile phones from them. He claimed that due to lapse of time, he was not able to recollect all the facts. His such answer does not inspire any confidence. Incident is of August 2014 and the witnesses were examined in April 2015 and all these witnesses are young persons and it is not believable that they would forget all these details in such a short span. Moreover, in cross- examination, PW4 Ranjan again claimed that he did not know whether police had arrested the accused in his presence. He also admitted that accused were shown to him by the police at PS. 35 As far as A-3 Sunil is concerned, he had surrendered before the Court and, therefore, he was arrested. SI Baljeet Singh had taken his police custody FIR No. 749/14 PS Subhash Place (State Vs. Nitesh @ Lala etc) Page 10 of 13 remand and as per his deposition, on 02.09.2014 he arrested accused in the Court after obtaining permission of the Court and recorded disclosure statement of accused Sunil and then he had obtained his police custody remand next day. During the police custody remand, accused Sunil led them to his house E-585, Shakur Pur J.J. Colony and got recovered one mobile phone Karbon K-9 without SIM vide Seizure memo Ex. PW1/R. Accused Sunil also got recovered one knife which was seized vide memo Ex. PW1/T. 36 Fact remains that Sunil had merely surrendered before the Court as he was allegedly being harassed by the police. After his arrest, police should have made sincere and earnest efforts to ensure TIP of accused. No application for holding of TIP of accused was ever moved by IO. SI Baljeet Singh claimed that TIP could not be conducted as complainants were not traceable. According to challan, they were even not available at their native address of Bihar. However, when process was sent to them, they all appeared before the Court and it is really mystifying as to on what basis, the IO has claimed that these witnesses were not available at their native address of Bihar.
37 Moreover, when accused Sunil was on police remand, police should have also made sincere and earnest efforts to join the independent witnesses before effecting any recovery from his house. No step in this regard was taken. Thus, IO-SI Baljeet Singh did not show any respect to the mandatory provision contained under Section 100 (4) Cr.P.C. Even when mobile phone was recovered from the house of accused Sunil, no necessity was felt in at least recording of IMEI number of such mobile phone. Moreover, there is no documentary proof on record which may show that said house i.e. H. No. E-585 belonged to accused Sunil.
38 If all these things were not sufficient to raise a strong wariness in the authenticity of the case of prosecution, SI Baljeet Singh went a step ahead. It seems that he has attempted to play with the documents after spare sets thereof had been prepared through photocopier. In his deposition, SI Baljeet Singh has claimed that he had filed the challan after going through the material and entire evidence collected during the investigation and he claimed that he had prepared FIR No. 749/14 PS Subhash Place (State Vs. Nitesh @ Lala etc) Page 11 of 13 the copies of documents after preparing the challan for the purpose of supplying the same to the accused persons. However, when original documents, as available on judicial file, were compared with the copies given to the accused, it was found that signatures of SI Baljeet Singh were not there on the photocopies of some of the important documents whereas these were found to be there on the documents available in judicial file. In order to be doubly sure in this regard, I called for the police file and in police file also, I came across a spare set of charge-sheet which contained photocopies of all such documents and it becomes manifest that signatures of SI Baljeet Singh are though present in some of the original documents i.e. Ex.PW1/D, Ex. PW1/F and Ex. PW1/N, these vanished from the photocopies. Conclusion is only one. These signatures on originals must have been put later on after preparing copies for accused and state. IO-SI Baljeet Singh had no business to tamper with the documents once he had prepared the spare sets for accused persons and for learned Prosecutor. Such addition at a belated stage is highly objectionable and definitely not in good taste.
39 Be that as it may, fact remains that investigation is not upto the mark. Normally, faulty investigation should not result in acquittal automatically but if it results in serious prejudice to the defence, then Court should invariably bestow benefit to the accused.
40 When such type of incident takes place and when there are multiple persons on both the sides, it is quite possible that all the witnesses may not come-up with the details with complete exactitude and precision. No criminal case is free from minor infirmities. Contradictions and inconsistencies are bound to surface in each and every criminal trial. It is the duty of the Court to see whether these infirmities go to the root of the matter and shake the foundation of the case or not. If the answer is in affirmative, then accused persons become entitled to benefit of doubt. Public witnesses have been examined without any delay and it cannot be said that they would have forgotten any material fact. Here, it is very much evident that accused persons were never apprehended at the instance of victims. It becomes very much obvious that no mobile phone was ever recovered from the accused in the presence of victims or at the instance of victims. It also becomes very much clear from the testimony of victims that accused were shown FIR No. 749/14 PS Subhash Place (State Vs. Nitesh @ Lala etc) Page 12 of 13 to them in the PS and they had identified them as well as mobile phone in the PS. Such identification was grossly against the law and unjustified. There are no ownership details of mobile phones. Even IMEI number is not known to correlate the same with the victims. Infirmities, noted above, are very significant and shake the foundation of the case. Interpolation of the documents has acted as catalyst and resultantly, I grant benefit of doubt to all the accused persons and acquit them of all the charges levelled in the present case.
41 They are, however, directed to furnish personal bonds and surety bonds in a sum of Rs. 10,000/- in terms of Section 437A Cr.P.C.
42 They be released from jail forthwith if not required in any other case.
43 File be consigned to Record Room.
Announced in the open Court (MANOJ JAIN) On this 13th day of October 2015. Addl. Sessions Judge (FTC) North-West District: Rohini: Delhi FIR No. 749/14 PS Subhash Place (State Vs. Nitesh @ Lala etc) Page 13 of 13