Indian Kanoon - Search engine for Indian Law

Delhi District Court

State vs . on 29 May, 2012

   IN THE COURT OF SH. RAKESH TEWARI  ASJ­VI(OUTER), 
                 ROHINI COURTS, DELHI

SC NO.15/11
FIR NO. 319/05
U/S 392/397/411/34 IPC
PS Paschim Vihar
Unique Case ID No. :02404R0266422006

              State 

              Vs. 

   1. Rajesh Kumar @ Rajesh Dalal @ Raj @ Jaat

      s/o Dhara Singh, r/o A­72, Swaran Park,

      Nangloi, Delhi.

   2. Raj Kumar @ Pappu s/o Chander Pal

      r/o H.No.61, Village Kirari, PS Sultan Puri, Delhi.

   3. Ram Kishore @ Rame s/o Lachho Ram

      r/o B­22, Ram Gali North Ghonda, Delhi­110053.



                       AND



SC NO.16/11
FIR NO. 118/11
U/S 174­A IPC
PS Paschim Vihar
Unique Case ID No. : 02404R0269622011


SC No.15/11 & 16/11                                         Page 1/59
               State 
               Vs. 

Rajesh Kumar @ Rajesh Dalal @ Raj @ Jaat

s/o Dhara Singh, r/o A­72, Swaran Park,

Nangloi, Delhi.



Date when committed to the court of Sessions :20.12.2005 & 06.09.2011
Date when case reserved for judgment        : 16.05.2012
Judgment pronounced on                        : 29.05.2012

JUDGMENT:

1. By this common judgment, I shall dispose of the said two cases which are connected in the sense that in case FIR No. 118/11, u/s 174A IPC in which accused Rajesh was arrested, having been declared Proclaimed Offender in the other case FIR no.319/05, which is punishable u/s 174A IPC.

2. The case of the prosecution in brief as per FIR no.319/05, is that on 21.04.2005, HC Ved Prakash received DD No.11 of PP Miyan Wali Nagar, PS Paschim Vihar and he along with Ct. Jagpal Singh reached the spot at Allahabad Bank, Outer Ring Road, Bhera Enclave, where one Sh. Chand Kumar Dham met him, who got recorded his statement with regard to the incident. SC No.15/11 & 16/11 Page 2/59

3. As per statement of the said complainant, he was residing at A­2B/140C, Paschim Vihar, New Delhi and was working as In charge of M/s R.N. Motors Petrol Pump situated at Outer Ring Road, Peera Garhi, New Delhi and he used to deposit the daily cash received from the said petrol pump with Group IV security at the said Allahabad Bank and till he used to receive the deposit slip from the bank, the said security guard used to remain with him and that on 21.04.2005, as usual, he went to deposit the cash amounting to Rs.7,10,000/­ contained in a briefcase of black colour along with the said security guard to the said bank and at the gate of the said bank, security guard requested him that he wanted to go earlier on the said day and thereafter the said security guard went away after leaving him at the gate of the said bank and he went inside the bank, filled up the form and took scroll no.12, deposited four cheques amounting to Rs.70852/­ and the lady clerk sitting at the cash counter of the bank requested him to wait for sometime as she wanted to deposit the money of the customer who had come earlier for the said purpose and after sometime, at about 10.05 a.m., one young boy wearing white colour shirt and jeans pant of blue colour by the height of 5'10"/11" and was having trimmed beard came and stood by his side and took out a revolver or pistol like weapon from his pant and pointed the same towards him and started snatching the said briefcase containing the said cash amount from his hand, to SC No.15/11 & 16/11 Page 3/59 which he protested and thereafter the said boy uttered in English language that he would shoot him (the complainant) and he (the accused) pressed his pistol against his (the complainant) neck and snatched the said briefcase containing money and went out of the bank and closed the shutter of the gate of the bank and when he (the complainant) came out back of the bank, he came to know that one maruti car of white colour having the number plate as 2442 was there in which two boys boarded and ran away and he could identify, if the said person snatching the said briefcase of money, brought before him and on the basis of the said statement, the FIR no.392/397 IPC was got registered by the said HC.

4. The subsequent investigation was entrusted to SI Vijay Singh, who prepared the rough site plan at the instance of the said complainant, recorded the statements of the PWs, searched for the accused and on 24.04.2005, the said SI received a secret information and at the pointing out of the secret informer, from Peera Garhi Chowk, Rohtak Road, near M/s Aggarwal Sweets, one maruti car of white colour having no number plate on the front side but was having the number plate at the back side with the number DL4CF­ 4520 was stopped wherein two boys were sitting on the front seat, who were overpowered and the person who was sitting at the driver seat came to be known as accused Rajesh Kumar @ Raj, from whose search, from the right dub of the pant, one pistol loaded was SC No.15/11 & 16/11 Page 4/59 recovered and the person who was sitting by his side, came to be known as Raj Kumar @ Pappu, from whose search, from the right dub of his pant, one country made revolver loaded was recovered and thereafter the said maruti car was searched and from the back seat, a briefcase of grey colour was found containing packets of the currency notes and every packet was having a slip of M/s R.N. Motors and said currency notes were counted which came to be Rs.4,25,000/­ and thereafter the dicky of the car was searched from where two registration number plates bearing number HR­13A­2442 and DL4CF­4522 were recovered.

5. On interrogation of the accused persons, they disclosed that the said money in the briefcase and the said car were stolen and the said amount of Rs.4,25,000/­ is the part of the stolen money which they looted along with their third associate namely Ram Kishore @ Rame on 21.04.2005, from the said Allahabad Bank and thereafter the said two accused namely Rajesh Kumar @ Raj and Raj Kumar @ Pappu were arrested and the said fire arms recovered from them were seized after preparing the sketch of the same and FSL form was filled up and the said amount along with the briefcase was seized and the car was also seized and the said two number plates recovered were also seized vide separate seizure memos and disclosure statements of the accused were also recorded and the accused Rajesh @ Raj produced one cash deposit slip of the Bank of SC No.15/11 & 16/11 Page 5/59 Punjab Ltd., Punjabi Bagh West, Delhi, vide which he had deposited Rs.49,000/­ in cash at the said Bank of Punjab on 23.04.2005, which was also seized.

6. From further interrogation of accused Raj Kumar @ Pappu, it transpired that one packet containing the currency notes of the denomination of Rs.100/­ each numbering 100, the amount being Rs.10,000/­ having the slip of M/s R.N. Motors, was kept by him at his house which were got recovered by accused Raj Kumar from his house and the said amount was also seized and thereafter accused Rajesh Kumar was put to TIP by way of judicial proceedings wherein the said accused refused to join the TIP proceedings on the grounds mentioned in the same and thereafter, one day's PC remand of accused Rajesh Kumar @ Raj was obtained, who took the police party to his rented premises at RZE­110, Gali No.4, Nihal Vihar, from where he got recovered Rs.1,15,000/­ more which were also seized and during further investigation, the said account of accused Rajesh Kumar @ Raj in Bank of Punjab bearing no.11071057 was got sealed and the third accused Ram Kishore @ Rame was searched, who could not be found and the said firearms were sent to FSL and the charge sheet was filed against accused Rajesh Kumar @ Raj and Raj Kumar @ Pappu and the said currency notes were handed over to its owner on superdari.

SC No.15/11 & 16/11 Page 6/59

7. Subsequently, the CFSL result from Chandigarh with regard to said firearms was placed on record and sanction u/s 39 of the Arms Act against both the accused to prosecute them under the Arms Act was placed on record and thereafter a supplementary charge sheet against accused Ram Kishore @ Rame was filed, who also got recovered on 11.06.2005, a sum of Rs.5,000/­ from his residential house no.B­22, Ram Gali, North Gonda, Delhi, which were seized.

8. Regarding the facts of the charge sheet in FIR no.118/11, u/s 174A IPC, against accused Rajesh Kumar @ Raj, it is mentioned that on 11.04.2011, SI Jogender Singh received a DD no.38B marked to him from the SHO having the information that SI Harjender Singh from PS Vivek Vihar, Delhi, had informed the PS Paschim Vihar on telephone that accused Rajesh Dalal @ Raj, involved in FIR no.319/05 of PS Paschim Vihar, who was on parole by the order of Hon'ble High Court of Delhi, was arrested on 10.04.2011, in FIR no.121/11 of PS Vivek Vihar and who was being produced before the Duty MM on 11.04.2011 and the said SI Jogender Singh came to know that said accused was declared PO by the court of concerned ASJ on 17.08.2010, in the said FIR no.319/05 and thus, the said accused was found to have committed an offence u/s 174A IPC and accordingly, the FIR No.118/11 was got registered at PS Paschim Vihar and the said FIR was entrusted to SI SC No.15/11 & 16/11 Page 7/59 Surender Singh for further investigation, who recorded the statements of PWs and arrested the accused on 18.04.2011 in the court of concerned MM and he obtained the order declaring him as PO and filed the charge sheet u/s 174A IPC.

9. On the basis of the said evidence and the charge sheet of FIR no.319/05, my Ld. Predecessor, vide his order dated 11.03.2008, framed charges u/s 392/397 IPC against accused Rajesh Kumar @ Raj and further, vide his said order of the day, a separate charge for the possession of Rs.1,15,000/­ at his house on 02.05.2005 as stolen property and Rs.49,000/­ having been found deposited with Bank of Punjab which was also part of the stolen property was framed u/s 411 IPC against the said accused and again, on 24.04.2005, Rs.4,25,000/­ were found in a Maruti Car bearing No.DL4CF­4520 in his possession as stolen property for which a separate charge u/s 411 IPC was framed against accused Rajesh Kumar @ Raj and accused Raj Kumar @ Pappu and similarly, Rs.10,000/­ were found in possession of accused Raj Kumar @ Pappu as stolen property on 25.04.2005 for which a separate charge u/s 411 IPC was framed against him and further, against accused Ram Kishore @ Rame a separate charge u/s 411 IPC for the possession of Rs.5,000/­ at his house on 11.06.2005 as stolen property was framed and against accused Raj Kumar @ Pappu a separate charge u/s 25 of the Arms Act for the unlawful possession of a country made revolver with SC No.15/11 & 16/11 Page 8/59 three live cartridges was framed, to which they pleaded not guilty and claimed trial and in FIR no.118/11, vide my order dated 22.09.2011, a charge u/s 174A IPC was framed against accused Rajesh Kumar @ Raj to which he pleaded not guilty and claimed trial.

10. During the perusal of the file, it transpired that the charge u/s 25 of the Arms Act could not be inadvertently framed by my Ld. Predecessor against accused Rajesh Kumar @ Raj, from whose possession a loaded pistol was recovered on the said day vide FIR no.319/05. From the perusal of the deposition of the witnesses and their cross examination, I am of the considered opinion that the said accused very well knew the case against him and there was no violation of the principles of natural justice by not framing a formal charge u/s 25 of the Arms Act against him and no prejudice was caused to the said accused. The said conclusion reached by me is further fortified by the fact that the said accused was otherwise charged u/s 392/397 IPC wherein it is specifically mentioned that in committing the said robbery the said accused used the said pistol, a deadly weapon, and thus, he rendered himself liable to be punished with minimum mandatory punishment u/s 397 IPC. In these circumstances, the charge u/s 25 of the Arms Act against accused Rajesh Kumar @ Raj is deemed to have been framed and denied by him as such.

SC No.15/11 & 16/11 Page 9/59

11. The prosecution, in order to prove its case, has produced as many as 16 witnesses in case FIR no.319/05 and 5 witnesses were examined in case FIR no.118/11, relevant of which have been discussed below.

12. The statements of the accused u/s 313 Cr.PC were recorded wherein they pleaded their innocence and denied the incriminating evidence against them as false and accused Rajesh Kumar @ Raj tendered the certified copies of the order of acquittal of accused Rajesh by the Hon'ble High Court in case FIR No.1059/99 of PS Paschim Vihar which is Ex.D1, the certified copy of the judgment of acquittal of accused Rajesh in FIR no.303/05 of PS Paschim Vihar which is Ex.D2, order of the Hon'ble High Court dated 17.02.2005 with regard to grant of parole to the accused Rajesh which is Ex.D3 and extension order of the parole vide order dated 15.04.2005 which is Ex.D4 and death certificate of Sh. Jogender Rana, the relative of accused Rajesh which is Ex.D5 and examined Sh. Shesh Narain Mishra as DW1 in his defence, being the neighbour of accused Rajesh residing in front of his house qua the offence u/s 174A IPC in case FIR no.118/11, who deposed that no process u/s 82 Cr.PC was ever executed at the residence of accused Rajesh.

13. I have heard Ld. APP for the state, Sh. D.S. Dalal, Advocate for accused Rajesh Kumar and Sh. Rajesh Kumar Sharma, Adv. for SC No.15/11 & 16/11 Page 10/59 the remaining two accused and perused the record.

14. Taking the evidence recorded in FIR no.319/05 first, PW3 Smt. Pushpa Rani was the concerned lady clerk on the relevant day of robbery in the said Allahabad Bank, to whom the complainant Chand Kumar Dham wanted to hand over the cash for depositing the same in the bank, turned hostile qua the identity of the accused and the role played by the accused in robbing the said complainant Chand Kumar Dham, as is mentioned in the charge sheet narrated above and she was extensively cross examined on behalf of the State by the Ld. Addl. PP, but nothing came on the surface connecting the accused Rajesh Kumar @ Raj as the person who robbed the said complainant and in her cross examination on behalf of the accused, she admitted that neither accused Rajesh nor any person for him ever met her or attempted to influence upon her to make a deposition in the court.

15. PW5 Satnam Singh was the owner of H.No.RZE­110, Gali No.4, Nihal Vihar, Delhi, in whose premises the accused Rajesh stated to be a tenant in one room and from where Rs.1,15,000/­ were got recovered, again turned hostile with regard to the identity of the accused Rajesh as the person who was his tenant or he got recovered any amount from the said premises and he was again extensively cross examined by Ld. Addl. PP on behalf of the State and was SC No.15/11 & 16/11 Page 11/59 confronted with his previous statement but he denied to have made any such statement to the police and he volunteered that he had seen the accused Rajesh present in court for the first time in the court.

16. PW6 Smt. Durgesh was again the clerk cum cashier of the said Allahabad Bank, who noticed that Mr. Chand of M/s R.N. Motors had come to the bank and later on, she came to know that cash of Mr. Chand was snatched, again she was declared hostile by the prosecution and was cross examined on behalf of the State by the Ld. Addl. PP, wherein she admitted that Sh. Chand Kumar Dham was a regular customer of the said branch of bank and used to visit the bank almost daily to deposit the cash in the bank from his petrol pump known by M/s R.N. Motors and that she had seen Sh. Chand Kumar Dham on the day of incident standing in the queue for depositing the cash in the said branch. She replied that she did not know whether accused Rajesh present in court was standing in the queue behind Sh. Chand Kumar Dham or that accused pointed a pistol on his neck and snatched the briefcase containing cash from his hand or that the accused went out of the bank after pulling down the shutter. She further replied that police came on the following day and police had not interrogated her on the day of occurrence. Thus, nothing came on the surface from the mouth of this witness also against accused Rajesh @ Raj.

SC No.15/11 & 16/11 Page 12/59

17. PW7 Smt. Sneh Goyala, the Assistant Manager of the said Allahabad Bank, deposed that Sh. Chand Kumar Dham of R.N. Motors had come to the branch on the day of incident in the year 2005 and who was having a current account in the said branch in the name of M/s R.N. Motors and as per banking practice, a pre­scroll number was issued to Sh. Chand for depositing the cash on the pay in slip and she did not remember which she gave to Mr. Chand on that day but the said scroll number was registered in the scroll register maintained in the bank in the official course of business and same number was given to the customer. She further deposed that she had issued the scroll number to Sh. Chand but she was busy in her work since it was morning and rush hours and suddenly, after sometime, she heard the noise of somebody running away and shutter was pulled down and after sometime they realized that something was wrong and Mr. Chand also, after sometime, told them that his cash bag had been snatched away and that she had not seen the person who had snatched the cash bag of Mr. Chand and again she was declared hostile by the prosecution and was cross examined on behalf of the State by the Ld. Addl. PP wherein she replied that she had not seen the person who had snatched the cash bag of Sh. Chand and as such, she cannot admit or deny the suggestion that accused Rajesh present in court was the same person and again she volunteered that she had not seen anyone. In her cross SC No.15/11 & 16/11 Page 13/59 examination on behalf of the accused, she replied that she did not know as to whether police had seized the scroll register kept by her and the same was not taken from her nor the police interrogated her.

18. PW8 Sh. Prem Chand was a mechanic with M/s R.N. Motors Petrol Pump, Peera Garhi, Delhi, and was also a driver who deposed regarding Sh. Chand Kumar Dham being the supervisor of the said petrol pump and as the person going to deposit the cash in the bank along with the security of Group IV and that he had not gone with Mr. Dham on 21.04.2005 for depositing the cash to the said bank. Again he was declared hostile by the prosecution and was extensively cross examined on behalf of the State by the Ld. Addl. PP, wherein he was confronted with his previous statement Ex.PW8/A which he denied to have made to the police.

19. PW9 HC Ved Prakash deposed in his examination in chief with regard to recording the said statement of Sh. Chand Kumar Dham Ex.PW9/B and he prepared the rukka Ex.PW1/B and handed over the same to Ct. Jagpal for registration of FIR and further investigation was entrusted to SI Vijay Singh and the SI prepared the site plan at the instance of the said complainant and one deposit slip was handed over by the complainant to the SI which was seized and on 24.04.2005, he along with SI Vijay Singh, HC Ashok Kumar, Ct. Dharambir, Ct. Sunder Lal, Ct. Suresh Kumar, Ct. Mahavir, Ct. SC No.15/11 & 16/11 Page 14/59 Umesh and Ct. Pradeep were on checking duty at N.S road, Miyan Wali Nagar, after barricading the road from 2.30 a.m onwards and from 6.30 a.m to 8 a.m, they started checking near Sai Baba Mandir after barricading the road and thereafter they came to National Market, Peera Garhi, where SI Vijay Singh received a secret information regarding the culprits of this case and public persons were requested to join the raid party, but none obliged and thereafter they reached at Peera Garhi Chowk, near Aggarwal Sweet Corner and at about 11.15 a.m, one white colour maruti car, without any number plate on the front, came from the side of Outer Ring Road, Vikas Puri side, and stopped near Aggarwal Sweet Corner and the same was having rear number plate as DL4CF­4520 and in the meantime, one boy came from Mangol Puri side and after crossing the road, sat inside the maruti car adjacent to the driver seat on the front portion and thereafter, at the pointing out of secret informer the car was cordoned and the person who was sitting on the driver seat was apprehended by the SI and he apprehended the other boy, sitting on the adjacent seat of driver seat and the person who was sitting on the driver seat was accused Rajesh Dalal @ Raj and the person apprehended by him came to be known as Raj Kumar @ Pappu and search of both the accused was taken and from the right side dub of the pant of accused Rajesh Dalal @ Raj, one automatic pistol was recovered loaded with six rounds in the magazine and from the SC No.15/11 & 16/11 Page 15/59 search of accused Raj Kumar @ Pappu, one country made revolver was recovered loaded with three rounds in the cylinder and sketch of the same were prepared which are Ex.PW9/C and Ex.PW9/D and thereafter the said pistol and country made revolver and cartridges were sealed with the seal of VS and were seized vide memo Ex.PW9/E and Ex.PW9/F respectively and FSL form was filled up and thereafter the said maruti car was searched and one grey colour suitcase was found on the rear seat of the car containing currency notes amounting to Rs.4,25,000/­, out of which five bundles of the denomination of Rs.500/­, 13 bundles were of the denomination of Rs.100/­ and 45 loose notes were of the denomination of Rs.1000/­ each and all the said packets of the currency notes were having slips of M/s R.N. Motors, Peera Garhi, with signature, which were kept in the said suitcase, seized vide seizure memo Ex.PW9/G and on checking the dicky of the maruti car, two registration number plates having numbers HR13A­2442 and DL4CF­4522 were found which were seized vide memo Ex.PW9/H and maruti car was seized vide memo Ex.PW9/J and both the accused were arrested vide memos Ex.PW9/K and Ex.PW9/L and Ex.PW9/K1 and Ex.PW9/L1 and that during the personal search of accused Rajesh, one deposit slip of Rs.49,000/­ of Bank of Punjab Ltd., Punjabi Bagh was recovered which was seized vide seizure memo Ex.PW9/M and both the accused made their disclosure statements which are Ex.PW9/N and SC No.15/11 & 16/11 Page 16/59 Ex.PW9/N1 and they pointed out the place of occurrence vide memos Ex.PW9/O and Ex.PW9/O­1. He further deposed that on the same day, the registration number of maruti car was verified with the help of engine number and chassis number from the PCR and it was found on inquiry that the said car was stolen from the area of Paschim Vihar.

20. PW9 further testified that on 25.04.2005, he again joined the investigation with IO and Ct. Mahavir and accused were taken out from the lock up and accused Raj Kumar @ Pappu took them at H.No.61, Village Kirari, and produced one packet of the currency notes containing of the denomination of Rs.100/­ each, the total being Rs.10,000/­, from the almirah lying in the room and the packet was having slip of M/s R.N. Motors and the same were sealed with the seal of VS and seized vide memo Ex.PW9/P and that on 02.05.2005, he again joined the investigation with IO SI Vijay and Ct. Pradeep and reached Tis Hazari Courts and SI Vijay obtained one day PC Remand of accused Rajesh who was interrogated and his disclosure statement was recorded and thereafter accused Rajesh @ Raj took them at RZE­110, Gali No.4, Nihal Vihar, house of Satnam Singh, where he was residing as a tenant and from the room, he had produced Rs.1,15,000/­ in two packets of the denomination of Rs.500/­ and 30 loose currency notes of Rs.500/­ from the pillow cover at the bedding having the slips of R.N. Motors and the same SC No.15/11 & 16/11 Page 17/59 were sealed with the seal of VS and seized vide memo Ex.PW9/Q and that on 10.06.2005, he again joined the investigation along with SI Vijay and Ct. Surender and reached Tis Hazari Courts where accused Ram Kishore @ Rame present in court was produced, who was interrogated and arrested vide memo Ex.PW9/R and he made his disclosure statement Ex.PW9/S and one day's PC remand was obtained and on 11.06.2005, he again joined the investigation and accused Ram Kishore @ Rame pointed out the place of occurrence vide memo Ex.PW9/T and thereafter the accused led them to H.No. B­22, Ram Gali, North Ghonda, Delhi and produced Rs.5,000/­ in the denomination of Rs.100/­ each from the almirah lying in the room which were sealed with the seal of VS and seized vide memo Ex.PW9/U and he identified the deposit slip book seized by the IO on 21.04.2005 as Ex.P1 and country made revolver and two live cartridges, one empty cartridge used in the test fire recovered from the possession of accused Raj Kumar, as Ex.P5 and cartridges collectively as Ex.P5A and he identified the country made pistol recovered from the possession of accused Rajesh Dalal as Ex.P6 and six cartridges collectively as Ex.P7, the grey colour briefcase recovered from maruti car as Ex.P3 and the said two number plates collectively as Ex.P8 recovered from the dicky of the car and one deposit slip of Rs.49,000/­ recovered from the personal search of accused Rajesh as Ex.P9 and photocopies of 13 bundles of currency SC No.15/11 & 16/11 Page 18/59 notes of the denomination of Rs.100/­ each as Ex.PW9/R1 to R13, photocopies of the five bundles of currency notes of the denomination of Rs.500/­ each as Ex.PW9/R14 to R18 and photocopies of 45 currency notes of the denomination of Rs.1000/­ as Ex.PW9/R19 which were recovered from the said grey colour briefcase from the maruti car. PW9 further identified photocopies of 100 currency notes of the denomination of Rs.100/­ each as Ex.PW9/R20, got recovered by accused Raj Kumar and photocopies of two bundles of currency notes of the denomination of Rs.500/­ each as Ex.PW9/R21 and R22 (the total being Rs.1,15,000/­) recovered from accused Rajesh Dalal. He further identified 50 currency notes of the denomination of Rs.100/­ each got recovered by accused Ram Kishore which are Ex.PW9/R23 and thereafter he identified 20 yellow slips bearing stamp of R.N. Motors, Peera Garhi as the slips on the said bundles of currency notes which are collectively Ex.P2.

21. In his cross examination on behalf of the accused, PW9 answered that on 21.04.2005, there were 20 persons inside the bank when they reached there and he was not acquainted with the complainant prior to 21.04.2005 and officials of PCR van were already at the spot and they introduced the complainant to him. He further replied that he reduced into writing the version of the complainant ad verbatim mentioned in the rukka Ex.PW1/B which SC No.15/11 & 16/11 Page 19/59 was sent for registration of FIR and the said recording of statement of the complainant took 1 or 1.4 hours. He further replied that SHO and some senior police officials came at the spot. He further answered that they remained at the bank after the arrival of SI Vijay Singh for 1 or 1½ hour during which the said SI recorded the statements of bank officials. He further answered that on 24.04.2005, he was posted at PP Miyan Wali Nagar and on the night intervening between 23/24.04.2005, they had gone to N.S. Road, Miyan Wali Nagar, in a routine check. He further answered that distance between the place of secret information at National Market and the spot where the accused along with the said maruti car was apprehended at Peera Garhi chowk may be 1 or 1½ kms and distance between Peera Garhi Chowk and PP Miyan Wali Nagar may be about 500 meters to 1 kilometer. He admitted that at Peera Garhi chowk there were number of shops in L­shape near Aggarwal Sweets and that it was a busy public place and public persons were available there and IO made request to 5/6 persons to join the raid party but they refused. He replied that his statement was recorded by the IO on the same day after completion of proceedings of that day. He replied that he had stated to the IO in his statement dated 21.04.2005 that IO prepared the site plan at the instance of Chand Kumar Dham, the complainant and that one deposit slip was handed over by the said complainant to SI Vijay Singh who seized that slip SC No.15/11 & 16/11 Page 20/59 or that they made a search for the culprits, which was confronted with his previous statement Ex.PW9/DA where the said facts were not found so recorded. He further replied that the car number was mentioned in DD No.11 as per narration of the complainant in his statement and as mentioned in the PCR call and that was why, it is mentioned only as 2442. He further answered that the number plates recovered from back portion of the said car were not sealed. He did not know as to where the number plate No.DL4CF­4520 has gone because it was seized with the said vehicle and was deposited in the Malkhana as it is. He further answered that he had stated to the IO in his statement that 6 cartridges were recovered from the pistol in the possession of accused Rajesh and he was confronted with his previous statement dated 24.04.2005 Ex.PW9/DB where five cartridges were mentioned. He again replied to have stated to the IO that IO also gave the signal besides the secret informer at the time of apprehension of the accused and he was confronted with his previous statement Ex.PW9/DB where the signal of the IO is not mentioned and he could not say if the IO had recorded in his statement that all the bundles of the currency notes were having yellow slips and he was again confronted with his said previous statement where the yellow slips and contents thereof were not mentioned. Again the fact that currency notes were kept in the suitcase and were sealed with the seal of VS was not found recorded SC No.15/11 & 16/11 Page 21/59 in his previous statement Ex.PW9/DB where sealing of the currency notes is missing. The facts regarding personal search conducted of the accused and memo prepared to that effect and during the personal search of accused Rajesh the bank deposit slip of Rs.49,000/­ stated to have recovered, both the accused pointed out the place of occurrence and as per disclosure statement of accused the said car was stolen from the area of Paschim Vihar, all these facts were not found recorded in his previous statement Ex.PW9/DB dated 24.04.2005. Here a court observation was made that in the certified copy of the statement dated 24.04.2005, which is Ex.PW9/DC, at point A to A on the last page, it is mentioned that 45 currency notes were of the denomination of Rs.100/­ each and the statement has been exhibited on behalf of the accused and on the other hand, Ld. Addl. PP submitted that in the said statement dated 24.04.2005 on the judicial record which has already been exhibited as Ex.PW9/DB on the last page from point B to B it is mentioned that 45 currency notes were of the denomination of Rs.1000/­ each.

22. PW9 further answered in his cross examination that on 02.05.2005, no public person was joined in the proceedings at Nihal Vihar also and that no disclosure statement of the accused was recorded on the said day and accused was interrogated only. He replied that he had stated to the IO in his statement that accused Rajesh was tenant in the house of one Satnam Singh and he was SC No.15/11 & 16/11 Page 22/59 confronted with his statement Ex.PW9/DD where name of Satnam Singh was not found mentioned. He answered that he himself did not verify if the said maruti car was stolen from the area of PS Paschim Vihar. He admitted that no site plan of the place of recovery at the Peera Garhi chowk was prepared by the IO nor the site plan of the place of recovery at Nihal Vihar was prepared. He admitted that accused Rajesh was on parole in some other case at the time of his apprehension in the present case. He further admitted that the IO did not record the statement of any PCR official in his presence. He admitted that there was a traffic booth across the road underneath the flyover and no traffic policemen was joined in the investigation. He answered that the stolen car recovered was also taken along with the police officials and the accused to the PS but he did not remember as to who drove the said stolen car to the PS. In his further cross examination on behalf of accused Raj Kumar and Ram Kishore, he admitted that on 24.04.2005, the boy who came crossing the road and reached near M/s Aggarwal Sweets was empty handed and was not having any article in his hand and that on 25.04.2005, they reached H.No.61, Kirari Village, at 10 or 10.30 a.m., but he did not know about its owner and at that time, father of the accused Raj Kumar and some lady related to him were present. He replied that on 11.06.2005, at the house of accused Ram Kishore at Ram Gali, his family members were present there and there were SC No.15/11 & 16/11 Page 23/59 houses near the house of accused Ram Kishore and he could not tell as to how many stories were there in the house and he admitted that no neighbour or family member was made a witness of recovery of Rs.5,000/­.

23. PW10 Sh. Chand Kumar Dham deposed regarding his supervisorship at the said petrol pump and routine deposit of the cash with the said Allahabad bank with the security Group IV and he further deposed that on 21.04.2005, he was carrying black colour briefcase in the morning hours containing Rs.7,10,000/­ which he took to the said bank with the said Group IV security and the security job of the guard was over when one reached the branch of the bank and after getting his signatures on their booklet, they left and thereafter he entered in the aforesaid branch with the briefcase and the cash and reached the cash deposit counter and one customer was already present before him depositing his cash and he was second in the queue and when his turn came and was about to deposit the cash, at that time, one person caught hold of his bag and told him to handover the said bag to him and at that time his face was towards the counter and second time, he (the person) again said that bag should be given to him and by that time the said person had put a pistol on his neck below right temple and when he turned to see, the said person threatened him to shoot in case he did not hand over the said bag to him and for 30/40 seconds, he had seen the face SC No.15/11 & 16/11 Page 24/59 of the said person and thereafter he got scared and handed over the bag to him and he could not speak anything due to fear and the said person walked towards the main gate of the bank and shutter was down thereafter and the witness pointed out towards accused Rajesh Kumar @ Raj present in court, identifying the said person who had snatched the said bag containing cash from him in the bank on the date of incident by pointing out the pistol on his neck. He further testified that immediately thereafter the bank officials made a call to the PCR and police reached there, recorded his statement which is Ex.PW9/B and later on, he received money in two parts by the order of the court, once he had received perhaps Rs.3.5 lacs and once he had received more than Rs.1.5 lacs and the indemnity bond is Ex.PW10/A and his authority letter is Ex.PW10/B and he also identified his signatures on the indemnity bond Ex.PW10/C and authority letter in this regard is Ex.PW10/D and that he had handed over the deposit slip book to the police and same is Ex.P1 and the relevant slip, which he filled up on the day of depositing the cash, which was actually not deposited, is Ex.PW10/E wherein he had mentioned the details of the cash which he was carrying on that day and IO seized the same vide memo Ex.PW10/F. He further testified that after going through the deposit slip Ex.PW10/E, he was carrying 45 currency notes of the denomination of Rs.1000/­ each, 730 notes of the denomination of Rs.500/­ each, 2700 notes of the SC No.15/11 & 16/11 Page 25/59 denomination of Rs.100/­ each and 600 currency notes of the denomination of Rs.50/­ each and the cash bundles were covered by yellow slips and signed by the Head Salesman and the said cash bundles were stamped with the stamp of R.N. Motors and he identified the 20 deposit slips having the stamp of R.N. Motors collectively as Ex.P2 and he identified the signatures of Head Salesman Sh. Bhola Dutt at point A on each slip Ex.P2 and he deposed that salesman Bhola Dutt has now expired and he identified the briefcase as Ex.P3 and photocopies of the currency notes in 715 sheets as Ex.P4 and total comes to Rs.5.5 lacs.

24. In his cross examination on behalf of the accused, PW10 replied that 2/3 security persons used to come daily for providing security. He further answered that his working hours at the petrol pump were from 9.30 a.m to 8 p.m. and there is one more supervisor deputed in petrol pump namely Ramesh Chand, who was his senior. He replied that the petrol pump was operational for 24 hours. He could not tell the capacity of the basic fuel tank where M/s R.N. Motors preserved fuel for the purpose of disbursing to the customers. He answered that receipts of the money at the petrol pump included the cash component as well as cheque component. For keeping the cash amount a safe was maintained by the petrol pump as per his further reply, which could be operated by use of two keys, out of which one was kept with Sh. Ravi Nath, proprietor of SC No.15/11 & 16/11 Page 26/59 M/s R.N. Motors and another was kept in his possession. He admitted that receipts at the petrol pump comprises of currency notes of different denomination of Rs.5, 10, 20, 50, 100, 500, 1000 and it also includes the coins of different denomination from Rs.1/­, Rs.2/­, Rs.5/­ and Rs.10/­. The said currency received was being kept by him in the said safe and the cash used to be deposited in the bank on the following day. He further replied that the average sale for a day in the month of April 2005 was approximately Rs.10,000/­ which comprised of currency of different denomination i.e. 10, 20, 50, 100 etc. and major receipts used to be of the denomination of smaller currency. He further answered that safe was there in which the salesmen keep on pouring the money received by them. He admitted that the said safe was not in the form of drop box, on the contrary it could only be operated by use of key as it carried a lock on it. He further answered that the sale proceeds from In and Out, outlet was kept in the safe once in a day i.e. after the closure of the outlet at about 10 p.m. He further replied that safe used to be opened on the next day at about 9.30 a.m by him and Sh. Ravi Nath was never involved in the process of opening the same. He further answered that safe was opened in the morning and the receipted money was counted by the Head Salesman deputed at the petrol pump and there was one Head Salesman for the 24 hours and on the next day, some other Head Salesman substituted him. He answered SC No.15/11 & 16/11 Page 27/59 that in the month of April 2005, there were two Head Salesmen namely Bhola Dutt, who has expired, and Rajender and Bhola Dutt had expired 2/3 years ago and during the investigation of the case, Bhola Dutt was alive. He further answered that Head Salesman used to prepare a chart for the total receipt and same was tallied by him (the witness) in the morning in the presence of Mr. Ramesh Chand, before taking the same for depositing with the bank.

25. In his further cross examination, PW10 admitted that whatever cash collection was being made at the petrol pump included the collection of the petrol pump as well as In and Out, outlet. He further replied that same procedure was adopted in the morning of 21.04.2005 and the entire process of counting cash collection consumed approximately 15/20 minutes and immediately after arrival of Group IV security man, the cash was being taken to the bank for depositing. He answered that on 21.04.2005, the Group IV security man reached petrol pump between 9.45 a.m to 9.50 a.m comprising of two guards along with a supervisor therein and that he accompanied the Group IV security men and headed for the bank and reached there at 10 a.m and thereafter the security guards dropped him inside the said Allahabad Bank and left the branch of the bank thereafter. He further answered that from the time of departure of Group IV security guards, it took approximately 5 to 8 minutes before the entire incident took place. He answered that SC No.15/11 & 16/11 Page 28/59 before the incident, he had also consumed some time in obtaining scroll number. He admitted that before the said person standing behind him had demanded the bag from him, he was facing towards the cash counter and the entire incident of handing over the bag to the person standing behind him was over in 30/40 seconds and he volunteered that second time, when the pistol was put on his neck, he turned his head and on the third time the person said that he would shoot him if he did not hand over the bag to him (the person). He further answered that there was no security guard in the branch of the bank, who was on leave, as revealed to him later on. He answered that police had reached the bank within 10/12 minutes of the call and the PCR officials and police officials from PP Miyan Wali also came there and at that time, SI Vijay Chandel did not come with police officials of PP Miyan Wali but one HC Ved Prakash came there along with three other police officials. HC Ved Prakash, as per his answer, took 1½ or 2 hours in recording his statement and making inquiry from him and during this span of time, SHO and DCP also came to the spot and SI Vijay Chandel also came to the spot during the said time interval. He further answered that thereafter all the police officials left for the PS and he also accompanied them to the PS and remained there till the evening. He answered that his only one statement was recorded on the said day, on which the FIR was lodged. He answered that he had stated to the SC No.15/11 & 16/11 Page 29/59 police in his statement Ex.PW9/B that the currency notes were covered with yellow slips and it was signed by the Head Salesman and it was confronted with Ex.PW9/B where it was not found so recorded. (It was pointed out by Ld. Addl. PP that same was recorded in the supplementary statement dated 21.04.2005). He further claimed to have stated to the police in his statement Ex.PW9/B that the job of Group IV security was over when he reached the bank branch and he was confronted with the said statement where it was not found so recorded. He further answered that he had stated to the police that the security personnel of Group IV were in hurry and therefore, they left him inside the branch and went away from the premises of the bank with his permission. He was confronted with the statement Ex.PW9/B where it was not so recorded in the said manner from portion A to A but it is stated in the manner, "he (the security guard) left after leaving him at the gate of the bank". He further answered that he told to the police that security persons of Group IV had left after getting his signatures on their booklet and he was confronted with statement Ex.PW9/B where it was not found so recorded. The fact that one customer was already depositing the cash at the said cash counter before him and he was the second one in the queue, was also not found so recorded in the statement Ex.PW9/B, when confronted. Again the fact that when his turn came and was about to deposit the cash after lifting his SC No.15/11 & 16/11 Page 30/59 briefcase for the said purpose, at that time, before he could do so, one person caught hold of his bag, was not found recorded in his statement Ex.PW9/B on confrontation. He answered that he had stated to the police in his said statement that he had seen the face of the person for 30/40 seconds but the said fact was not found recorded on confrontation in his statement Ex.PW9/B. He further replied that he did not tell to the police in his statement Ex.PW9/B that as he was scared, he handed over the bag to the said person.

26. In his further cross examination on behalf of the accused, PW10 replied that the briefcase, which he took to the bank on the day of incident containing the cash, was under lock and key and he was having the key of the same. He admitted that the key of the said briefcase remained with him while the accused ran away with the briefcase containing the cash and this fact he never told to the police in his statement. He further answered that he came to know about the recovery of the cash from the PP Miyan Wali after the arrest of accused persons and that he had personally gone to the said PP and verified and counted the currency notes. He answered that the incident had taken place on Thursday and he had gone to PP Miyan Wali on Sunday in the morning hours and accused Rajesh was also there at that time and he had told that he was the same person and that police officials had brought him (the accused) inside the PP and had shown accused Rajesh to him at the same time. He further SC No.15/11 & 16/11 Page 31/59 answered that after the order of the court, he received the currency notes on two different dates and it was HC Ved Prakash who delivered the amount on both the occasions. He further answered that currency notes were lying in a bag when he reached the PP, before receiving the same by him and the said bag was with HC Ved Prakash. He answered that he had not accompanied HC Ved Prakash for getting the photocopies of the currency notes made. He answered that he had also given receipt of the currency bundles with yellow slips after receipt of the same from HC Ved Prakash. He did not remember as to whether he put any counter sign on the photocopies of the currency notes.

27. In his further cross examination on behalf of the accused, PW10 replied that he did not know any person by the name of Vijay Kumar Avasthi residing in A­2 Block, Paschim Vihar. He admitted that his brother is ACP in Delhi Police.

28. PW12 Sh. Vikram Mehta is again the Senior Manager of the said Allahabad Bank, who came to know of the incident and gave an information to the police and claimed to have not seen the incident nor he had seen any person looting money from Sh. Chand or running after that and that security guard of the bank was on leave on that day and if the security guard happens to be on leave on particular day, then no other person is recruited and he had not SC No.15/11 & 16/11 Page 32/59 identified anyone in the PS on any date and he was declared hostile by the prosecution and in his cross examination on behalf of the Ld. Addl. PP, he could not remember the date and month as 21 st April and he could not say the time as 10.05 a.m. He admitted that his statement was recorded by the police on the day of incident but he denied to have made any such statement giving the date as 21st April and time as 10.05 a.m. in his statement. He was further confronted with his previous statement Ex.PW12/A, but he denied the suggestion that he was intentionally and deliberately avoiding the date, month and time of the incident. He denied to have made any such statement of his being an eye witness of the incident wherein he also gave the description of the accused. He further failed to identify the accused Rajesh Kumar @ Raj as the same person who was the accused of the incident.

29. In his further cross examination on behalf of the accused, PW10 answered that on the date of incident, Pushpa Rani was sitting on the cash counter and Smt. Durgesh was also on duty and sitting on some counter but he did not remember anything about one Sneh Goyala, who was posted as Assistant Manager in the branch on the said date of incident. He admitted that he had read his statement u/s 161 Cr.PC outside the court on the day of deposition and he was told to go through the said statement by the police official, but he could not tell the name of the said police official. He answered that he had SC No.15/11 & 16/11 Page 33/59 stated to the police in his statement Ex.PW12/A that he went to his chamber and made a call to the police, but the said fact was not found recorded in his said statement Ex.PW12/A. He did not remember as to whether any document was collected from him by the police on the day of incident. He was put with a question that in his statement Ex.PW12/A, at portion E to E it is mentioned that on that day he was on official leave, to which the witness replied that it was wrongly written in the said portion, since he made a call to the police. He could not tell as to whether he made a call to the police police or at phone number 100.

30. PW13 was the concerned then MM, who proved the TIP proceedings as Ex.PW13/C wherein accused Rajesh refused to join the same on the ground that he was shown to the witnesses in the PS and police had taken his photograph also.

31. PW14 HC Pradeep Kumar is the witness who joined the investigation on 02.05.2005, along with the IO and HC Ved Prakash and he is the witness of the recovery from H.No.RZE­110, Gali No.4, Nihal Vihar, from the house of Sh. Satnam Singh of Rs.1.15 lacs at the instance of accused Rajesh @ Raj and also of 11.06.2005, when accused Ram Kishore got recovered Rs.5,000/­ from the H.No. B­22, Ram Gali, North Ghonda, Delhi and on 29.06.2005, he took the exhibits of the case to CFSL Chandigarh and he identified the SC No.15/11 & 16/11 Page 34/59 said currency notes recovered at the instance of said two accused and also the said yellow slips of M/s R.N. Motors. However, in his cross examination on behalf of the accused, he admitted that no public witness was joined at the time of recovery of Rs.1.15 lacs and he admitted that signatures of the landlord were not obtained on the seizure memo nor any site plan of the place of recovery was prepared. He further answered that IO had not seized the pillow cover from which the currency notes were taken out by the accused.

32. PW15 Sh. Amit was the Manager of HDFC Bank, Punjabi Bagh, Delhi, who proved the S/B account of accused Rajesh Kumar by the documents Ex.PW15/A and the counter slip of cash deposit as Ex.PW15/B and later on, the Bank of Punjab was merged with Centurian Bank, the account was got changed and later on again the bank got merged with HDFC Bank, in the year 2008 and again, the said account number was changed and original statement of account regarding the bank account of the accused is Ex.PW15/C.

33. PW16 Inspr. Vijay Singh was the IO of the case who deposed the facts on the same lines on which PW9 and PW14 have deposed and he further proved his site plan as Ex.PW16/A. In his cross examination on behalf of the accused, he replied that he reached the said bank on 21.04.2005 at about 1 p.m, but he did not remember if any PCR vehicle or any employee of PCR were present at the bank SC No.15/11 & 16/11 Page 35/59 or not. He further answered that besides the bank employees and the complainant, 10/15 persons were also present at the spot. He did not serve any notice on the said public persons to join the investigation. He admitted that the said bank is surrounded by residential houses. He did not ask any resident or any chowkidar of the said houses to join the investigation. He further answered that he did not reduce into writing the secret information received at about 9.15 a.m on 24.04.2005 at National Market, Peera Garhi. He did not call any person from M/s Aggarwal Sweet shop at Peera Garhi. He did not call any Traffic Police Official from the Traffic Booth which was at a distance of 25 meters from Aggarwal Sweet shop. He did not search any other vehicle prior to the arrival of car of the accused persons. He did not join any public person as recovery witness of the said weapons, number plates, briefcase and currency notes from the said car. He admitted not to have cited owner of the said maruti car as a witness in the present case. He replied that the cash amount recovered from the suitcase was not separately sealed by him. He did not join any public person or family members of accused Raj Kumar and Ram Kishore at the time of effecting recovery of the said currency notes. He replied that probably he got his statement recorded in case FIR no.303/05 with regard to theft of the said car and when he was confronted with the certified copy of his statement in the said FIR, he replied in affirmative and the said statement is SC No.15/11 & 16/11 Page 36/59 Ex.PW16/DA.

34. PW1 W/ASI Nirmala proved the FIR as Ex.PW1/A. PW2 Ct.

Jagpal Singh took the rukka for registration of the FIR. PW4 ASI Dev Singh was the MHC(M) who deposed regarding deposit of the case property and sending the same to CFSL etc. PW11 W/Ct. Veena proved the DD no.11 already Ex.PW9/A.

35. In case FIR no. 118/11, PW1 SI Jogender Singh proved the DD no.38B as Ex.PW1/A which was received by him on 11.04.2011 regarding arrest of accused Rajesh @ Raj in FIR no.121/11, u/s 25 of the Arms Act and other sections of IPC, PS Vivek Vihar, who was wanted in the present FIR and was on parole and he absconded during the parole so he was declared PO by the then court of Ld. ASJ on 17.08.2010 and he made his endorsement on the said DD as Ex.PW1/B and prepared a rukka and got the FIR registered and subsequent investigation was entrusted to SI Surender Singh. In his cross examination on behalf of accused Rajesh, he replied that he did not have a talk with SI Harjender Singh of PS Vivek Vihar.

36. PW2 SI Surender Singh deposed that on 14.04.2011, he received the investigation of this case and he got issued a production warrant of the accused Rajesh for 18.04.2011 and when he was present at the concerned court of MM at Tis Hazari, under the permission from the said court, he interrogated and arrested the SC No.15/11 & 16/11 Page 37/59 accused vide memo Ex.PW2/A and he recorded the statements of PWs and collected the certified copies of the judicial orders which are Ex.PW2/B to Ex.PW2/F (originals of the same are on the judicial file of FIR no.319/05) and he prepared the challan. In his cross examination on behalf of the accused, he replied that he did not visit the premises personally on the address of which the process u/s 82/83 Cr.PC was taken. He did not record the statements of the said process servers in the present case.

37. PW3 HC Krishan Kumar proved the FIR as Ex.PW3/A. PW4 Ct. Sanjay proved the DD No.38B as already Ex.P1/A. PW5 Ct. Gajender joined the investigation on 18.04.2011 at the time of arrest of accused Rajesh Dalal vide memo Ex.PW2/A.

38. Taking the offence u/s 392/397 IPC against accused Rajesh @ Raj first, the star witness is PW10 Sh. Chand Kumar Dham, who stated that he saw the accused at the bank at the time of snatching of his briefcase containing the notes, specifically mentioned in his cross examination that entire incident of handing over the bag to the person standing behind him was over in 30/40 seconds, although the fact that he saw the face of the person for 30/40 seconds was confronted with his previous statement Ex.PW9/B where it was not found so recorded. The only inference, at best, can be drawn that he had only the glimpse of the person who snatched his bag. PW10 SC No.15/11 & 16/11 Page 38/59 further specifically admitted that incident had taken place on Thursday and he had gone to PP Miyan Wali on Sunday in the morning hours and accused Rajesh was also there at that time and he had told the police officials that he was the same person and that the police officials had brought the accused Rajesh inside the PP and had shown accused Rajesh to him at the same time. It is not disputed that accused Rajesh was apprehended on 24.04.2005. It is also not disputed and as per PW13 also, that accused Rajesh @ Raj was put to TIP on 28.04.2005 vide proceedings Ex.PW13/C wherein the accused refused to join the TIP proceedings on the ground that he was shown to the witnesses in the PS and police officials had taken his photograph also. The claim of PW10 that the accused was shown to him at PP Miyan Wali and he identified him as the same person who snatched his bag, go to establish that accused Rajesh was not in muffled face in the said PP. Thus, when he was put to TIP on 28.04.2005, it has been well established on the record that he was shown at least to PW10 at the said PP and in these circumstances the refusal of the accused Rajesh to join the TIP on the said ground becomes justified.

39. Although the judicial TIP is not a substantive piece of evidence and it carries a corroborative value only, but when an eye witness was not knowing the accused previously and he had only a bird's eye view of the accused at the time of the incident, the SC No.15/11 & 16/11 Page 39/59 proceedings of TIP becomes very important in order to establish the observation power and memory of the witness. In the present case, admittedly the incident was over in 30/40 seconds and the PW10 was claiming that initially his face was towards the cash counter and it was on the second time that he turned his face and could see the culprit and he got scared and he had to hand over the bag to him and he could not speak anything due to the fear and thereafter the said person walked towards the main gate of the bank and shutter was down thereafter and thus it is a case where the identifying witness had only a fleeting glimpse of the accused who was unknown to him and admittedly the occurrence was over within 30 or 40 seconds and in these circumstances, after the alleged arrest of the accused Rajesh, the police should have kept him in muffled face and showing him in the PP creates a reasonable doubt as to whether accused Rajesh was really seen by the PW10 at the time of the incident so as to identify him even otherwise at the PP after a gap of 3 or 4 days.

40. Otherwise surrounded circumstances, which have come on record, further creates a doubt as to the very presence of the PW10 in the bank and towards his having seen the culprit in the manner as claimed by him in his examination in chief. Almost all the witnesses including the police officials, who joined the investigation on 21.04.2005, admitted the presence of many public persons in the said bank at the relevant time. No such public witness/person was SC No.15/11 & 16/11 Page 40/59 produced in the witness box. The bank officials namely PW3, PW6, PW7 and PW12 have categorically denied to have seen any person snatching the bag of the PW10 at the point of pistol or they failed to identify the accused Rajesh in the court. Admittedly no security personnel of Group IV security has been produced as a witness despite the claim of PW10 that a substantial amount was being spent on keeping the said Group IV security for the said purpose. As per routine, the Group IV security persons remained present till the person on behalf of the said petrol pump used to come out after depositing the cash etc, but on 21.04.2005, there was a deviation from the normal routine that the Group IV security personnel left him at the gate of the bank and went away. Even PW8 Sh. Prem Chand, who was the driver on the vehicle in which PW10 went to the bank on 21.04.2005 and who was required to depose as per his statement recorded by the police to the effect that he remained outside the bank for waiting his supervisor, the PW10, and after sometime the accused Rajesh came out from the bank with a briefcase and he rushed towards a maruti car, stationed near the bank and ran away in that maruti car and accused Rajesh was accompanying with another boy namely accused Ram Kishore @ Rame and they both ran away in the maruti car which was already stationed outside the bank and accused Rajesh was driving the said maruti car, did not depose anything regarding the said facts and he SC No.15/11 & 16/11 Page 41/59 even denied before the court to have gone to the bank on 21.04.2005 along with PW10 or having seen anything. PW10 further identified the briefcase as Ex.P3, which was admittedly of the grey colour when produced in the court and identified by him, is in sharp contradiction to his statement given to the police on which the FIR was registered and same being Ex.PW9/B, wherein the briefcase was of the black colour. In the said circumstances and in the admitted position that PW10 was already shown accused Rajesh at PP Miyan Wali on 24.04.2005, the identification in the deposition before the court becomes useless and highly doubtful. Probably it was for this reason that neither PW10 claimed in his statement before the police or before the court that he could identify the pistol which was put at his neck by the said person, nor the prosecution put the already recovered pistol from the possession of accused Rajesh for its identification by him. Moreover, his examination in chief is full of material improvements so far as facts as to what happened in the bank are concerned, which were not found recorded either in his statement on the basis of which FIR was recorded or in his other supplementary statements, though he has denied his any second statement recorded by the police. The facts that the job of Group IV security was over when he reached the bank or that the security personnels of Group IV were in a hurry and therefore, they left him inside the branch and went away from the bank with his permission SC No.15/11 & 16/11 Page 42/59 or that Group IV personnels left after getting his signatures on their booklet or that one customer was already depositing the cash at the cash counter and he was the second one in the queue, were not found so recorded in his previous statement Ex.PW9/B. Again, the fact that when he was about to deposit the cash after lifting his briefcase for the said purpose and before he could do so, one person caught hold of his bag, was not found so recorded in his statement Ex.PW9/B nor the fact that he saw the face of the person for 30/40 seconds was found recorded in his previous statement nor the fact that he was scared, therefore, he handed over the bag to the said person was found so recorded in his previous statement Ex.PW9/B. He even did not disclose to the police the most important fact that after the briefcase was snatched, its key remained with him nor he handed over the said key to the police. All this go to show that the PW10 has tried to manipulate the story to fit in the same as per requirement of the charge sheet. Even otherwise, it does not appeal to the common sense and otherwise difficult to swallow that an accused, who has taken all the precautions of escaping from the bank after looting the person and already managed a maruti car with his associate, as has been alleged in this case, would not take any precaution at least to hide his identity by covering his face while giving effect to such a dastardly act of committing robbery of money from the possession of a person and that too in a bank premises. SC No.15/11 & 16/11 Page 43/59 Thus, the prosecution has miserably failed to bring home the guilt of the accused Rajesh @ Raj for the offence u/s 392/397 IPC beyond reasonable doubt.

41. Coming to the aspect of the charges u/s 411 IPC & 25 of the Arms Act. Admittedly, as per prosecution case, the initial recovery of the pistol from the possession of accused Rajesh @ Raj and a country made revolver from the possession of accused Raj Kumar @ Pappu along with cartridges, the briefcase containing Rs.4,25,000/­ and the registration number plates from the dicky of the car and one deposit slip of Bank of Punjab from the personal search of accused Rajesh, were from a maruti car on 24.04.2005, which was not having front number plate but the back number plate was showing the registration number of car as DL4CF­4520.

42. The said maruti car was admittedly the subject matter of theft in case FIR no.303/05, PS Paschim Vihar, u/s 379/411/482/34 IPC wherein accused Raj Kumar @ Pappu and accused Rajesh Kumar @ Raj were also the accused and certified copy of the order of acquittal of the said two accused in the said case has been placed on record in the defence during the statement of the accused u/s 313 Cr.PC and same is Ex.D2 and the date of judgment whereby the said two accused were acquitted is 03.08.2011 and charge was with regard to theft of car No.DL4CF­4522 belonging to the complainant Lekh SC No.15/11 & 16/11 Page 44/59 Ram Yadav. The facts alleged in the said FIR no.303/05 were that on the intervening night of 15th and 16th April, 2005, between 8.30 p.m to 7.30 a.m, in the parking of H.No.GH­10/111­C, Sunder Apartment, Paschim Vihar, Delhi, both the accused Raj Kumar and Rajesh Kumar, in furtherance of their common intention dishonestly committed theft of the maruti car bearing registration no.DL4CF­ 4522 belonging to the complainant Lekh Ram Yadav and on 24.04.2005, at Peera Garhi chowk, near Aggarwal Sweets, both the accused persons were apprehended in possession of the aforesaid stolen car with a fake number plate i.e. DL4CF­4520. It is not disputed that the said judgment of acquittal of the said two accused was passed by the court of concerned MM, a competent court of jurisdiction.

43. During the trial and as per holding of the said Metropolitan Magistrate in the said judgment Ex.D2, the complainant and owner of the car namely Lekh Ram Yadav as PW1 answered in the cross examination that he came to know regarding the recovery of said car from the newspapers and he identified the car at PP Miyan Wali as police told him that it was parked in the said PP and he saw the car parked at PP Miyan Wali on 20/21.04.2005. PW3 Ct. Mahavir, in that case, a witness of alleged recovery, even went to answer that he did not know as to who called the painter to prepare the fake number plates bearing no.HR13A­2442 and DL4CF­4520 and the Ld. SC No.15/11 & 16/11 Page 45/59 Magistrate held "meaning thereby that the fake number plates were got prepared from a painter". The Ld. Magistrate further held in his judgment, "as per complainant himself, the car was standing at PP Miyan Wali on 20/21.04.2005, but as per story of the prosecution, the accused persons were apprehended with the stolen car on 24.04.2005 and admittedly no public persons were joined in the investigation and thus, prosecution failed to prove its case against the accused persons beyond all reasonable doubt and consequently, both the accused persons namely Raj Kumar @ Pappu and Rajesh Kumar @ Raj were acquitted of the charges levelled against them".

44. Admittedly said Lekh Ram Yadav, the registered owner of the said maruti car, is not a witness in the present case and the issue with regard to possession of the car with the present accused Rajesh Kumar @ Raj and Raj Kumar @ Pappu was already held not proved by the said court of competent jurisdiction of the Ld. Metropolitan Magistrate vide judgment Ex.D2 in case FIR no.303/05 of PS Paschim Vihar itself and the basic ground was that said registered owner saw the car at PP Miyan Wali on 20/21.04.2005 and if it was so, how it could have been shown to have been recovered on 24.04.2005, as alleged in the present case and in that case also.

45. Now the question is that if an issue is already decided by a competent court of jurisdiction, can it be again raised subsequently SC No.15/11 & 16/11 Page 46/59 in time before another court. In my considered opinion, the doctrine of issue estoppel is applicable to the criminal law also as it is applicable in civil law along with doctrine of res­judicata. I am fortified in my view by the judgments of Hon'ble Supreme Court as discussed below.

46. Hon'ble Supreme Court, in case titled Piara Singh Vs. State of Punjab reported as AIR 1969 SC 961, held as follows:

"The principle of issue­estoppel is different from the principle of double jeopardy or autrefois acquit as embodied in S.403 of the Criminal Procedure Code. The principle of issue­estoppel is a different principle, viz. where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of S.403(2) Cr.PC. For issue­estoppel to arise, there must have been distinctly raised and inevitably decided the same issue in the earlier proceedings between the same parties."

47. Again, in the judgment titled Pritam Singh and another Vs. State of Punjab reported as AIR 1956 SC 415, it was held by Hon'ble Supreme Court as under:

"The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely SC No.15/11 & 16/11 Page 47/59 stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim 'res judicata pro veritate accipitur' is no less applicable to criminal than to civil proceedings. Thus an acquittal of an accused in a trial under S.19(f), Arms Act, is tantamount to a finding that the prosecution had failed to establish the possession of certain revolver by the accused as alleged. The possession of that revolver was a fact in issue which had to be established by the prosecution before he could be convicted of the offence under S.19(f). That fact was found against the prosecution and could not be proved against the accused in the subsequent proceedings between the Crown and him, under a charge of murder. The evidence against him in the latter proceedings would have to be considered regardless of the evidence of recovery of the revolver from him."

48. In a case decided by Hon'ble Andhra Pradesh High Court, titled D.R. Rao Vs. Somi Reddy and others reported as 1987 Crl. Law Journal 1629, it was held as follows:

"The rule of issue­estoppel can be taken advantage of in a situation when the finding in favour of the accused is arrived at on an appraisal of facts and circumstances of an identical issue in a former case. Whatever be the outcome in the prior case if the identical issue arises in both the cases the finding given in a prior case bars the adjudication of the same issue in a later case. The accused in whose favour the finding has been given in a former case can invoke rule of issue estoppel and the Court is barred from considering the issue again. The rule of issue estoppel bears the pattern of res judicata under S.11 C.P.C. Though the res judicata with all its ramifications may not apply but the essence of the doctrine applies and when the Court is seized of the matter the SC No.15/11 & 16/11 Page 48/59 finding in the issue cannot be reopened in a subsequent cause and the said finding is binding by operation of this doctrine. The operation of rule of issue estoppel is not linked with the outcome in the proceedings and the bar is confined to reagitate or adjudicate when a finding is already arrived on identical issue as distinct from autrefois acquit applicable to the interdiction of a trial in succession in respect of the same offence ending in acquittal."

49. Judging in the light of the said law laid down by the said Hon'ble Superior Courts, the finding on the issue with regard to possession of the said stolen maruti car by the accused Rajesh @ Raj and Raj Kumar @ Pappu on 24.04.2005 at Peera Garhi Chowk, near M/s Aggarwal Sweets, has already been held not proved by the said competent court of jurisdiction vide the said judgment Ex.D2 and the same cannot be allowed to be reagitated in the present case and consequently the possession of the car by the present two said accused is hereby held as not proved at all.

50. Although my said holding is sufficient to doubt the other alleged facts with regard to the accused Rajesh and Raj Kumar @ Pappu sitting in the said car, recovery of the said fire arms from their possession, the recovery of the alleged briefcase containing Rs.4,25,000/­ from the rear seat of the car and the recovery of said number plates from the dicky of the said car, but let me examine the recovery of the said currency notes from the said car and identity of the currency notes.

SC No.15/11 & 16/11 Page 49/59

51. PW10, the complainant, from whose possession the bag was snatched, did not mention about any denomination of the currency notes in his first statement, on the basis of which FIR was registered, Ex.PW9/B. He did not mention that the said bundles of currency notes were wrapped with a yellow colour slip of M/s R.N. Motors, allegedly signed by the Head Salesman namely Bhola Dutt. He admittedly saw the accused Rajesh in PP Miyan Wali on 24.04.2005 and counted the currency notes also allegedly recovered from the said car and at that time, the said yellow slips came into picture for the first time in the present case. He answered in his cross examination that said Bhola Dutt was alive during the investigation of the present case and he used to prepare a chart for the total receipt which was being tallied by him in the morning in the presence of Mr. Ramesh Chand, another supervisor, before taking the same for depositing in the bank. No such chart was proved on record. In his cross examination, he specifically admitted that his only one statement was recorded and the deposition before the court that currency notes were covered with yellow slips and it was signed by Head Salesman was confronted as an improvement with his previous statement Ex.PW9/B where the said fact was not found so recorded. Thus, the contention of the Ld. Addl. PP that there was a supplementary statement wherein the said fact was recorded becomes useless in view of the denial of the witness that his any SC No.15/11 & 16/11 Page 50/59 second statement was recorded on the same day. The most important fact that the said briefcase in which the said currency notes were snatched from his hand in the bank, was under lock and key and key of the bag was with him, was not disclosed by him to the police ever nor he gave the said keys to the police. He further admitted that when he had gone to take the currency notes on superdari, the same were lying in a bag in the possession of HC Ved Prakash and he also did not sign the photocopies of the currency notes nor accompanied HC Ved Prakash for getting the photocopies of the currency notes made. He further admitted that while receiving the currency notes on superdari, he had given a receipt for the same to HC Ved Prakash, but the said receipt has never been produced nor proved on the record. Admittedly, as per deposition of PW9, HC Ved Prakash and PW16, the IO of the case, the place from where the said recovery of the maruti car, firearms , the said currency notes in a bag and the number plates were seized, i.e. Peera Garhi Chowk near M/s Aggarwal Sweets, was a crowded place and no public person was joined despite their availability and further, the said witnesses have admitted that there was a Traffic Police Booth nearby but no traffic police official was joined in the investigation and admittedly the currency notes recovered from the said bag at the rear seat of the said maruti car were not separately sealed so as to put the same for any judicial identification by the PW10 or by any SC No.15/11 & 16/11 Page 51/59 other employee of the said M/s R.N. Motors Petrol Pump. Thus, it is highly doubtful as to whether the said articles were recovered in the manner as alleged in the charge sheet and in the deposition of PW9 and PW16 or the identity of the said currency notes has been established beyond reasonable doubt. So far as recovery of number plates was concerned, PW9 specifically answered that he did not know as to where the registration number plate bearing no.DL4CF­ 4520 has gone because it was also seized with the said vehicle and was deposited in the Malkhana as it is. Moreover, Ct. Mahavir, who appeared as PW3 in the said case FIR no.303/05, with regard to theft of the said car, admitted that a painter was called to prepare the fake number plates bearing no.HR13A­2442 and DL4CF­4520, although he did not know as to who called the painter and it was already held by the said Ld. Metropolitan Magistrate that fake number plates were got prepared from a painter. Even, in the cross examination of PW9, the recovery witness, he allegedly stated to the IO in his statement that six cartridges were recovered from the pistol in the possession of accused Rajesh, but he was confronted with his statement dated 24.04.2005, Ex.PW9/DB, where five cartridges were mentioned. Even the fact that yellow slips and contents thereof wherein the currency notes were wrapped, were not found mentioned in his said previous statement Ex.PW9/DB. The fact that currency notes were kept in the suitcase and were sealed with the SC No.15/11 & 16/11 Page 52/59 seal of VS was also not found recorded in the statement of PW9 Ex.PW9/DB. Again the fact that personal search of accused Rajesh was conducted and memo was prepared to that effect and during personal search of accused Rajesh a bank deposit slip of Rs.49,000/­ was recovered was also not found recorded in his said previous statement Ex.PW9/DB. The facts that both the accused Rajesh and Raj Kumar pointed out the place of occurrence or that the accused disclosed that the said car was stolen from the area of Paschim Vihar were also not found recorded in his said previous statement Ex.PW9/DB. Further, in the certified copy of the statement dated 24.04.2005, which is Ex.PW9/DC, recorded in trial of FIR no.303/05, it was found mentioned that 45 currency notes were of the denomination of Rs.100/­ each but in his said previous statement recorded in this case Ex.PW9/DB it is mentioned that 45 currency notes were of the denomination of Rs.1000/­ each. Thus, what happened on 24.04.2005 at Peera Garhi Chowk near Aggarwal Sweets, as alleged in the case, is difficult to be believed and is held as not proved at all.

52. Coming to the recovery effected on 25.04.2005 at the instance of accused Raj Kumar @ Pappu from the H.No.61, Village Kirari of Rs.10,000/­ from the almirah lying in the room. Again the identity of the said currency notes recovered wrapped in a yellow slip is doubtful on the grounds mentioned above. In this regard, both the SC No.15/11 & 16/11 Page 53/59 recovery witnesses namely PW9 and the IO PW16 admitted that at that time father of accused Raj Kumar and some lady related to him were present and they were tenants in the said house, but no inquiry was made regarding house owner/landlord and no neighbour or the family members were made witnesses to the said recovery and no site plan of the said house was prepared. In view of the said position, the recovery at the instance of accused Raj Kumar cannot be said to have been proved of the said currency notes beyond reasonable doubt.

53. Coming to the recovery of Rs.1,15,000/­ at the instance of accused Rajesh @ Raj on 02.05.2005 from premises no.RZE­110, Gali No.4, Nihal Vihar, the house of one Sh. Satnam Singh where accused Rajesh @ Raj was allegedly a tenant in one room and the recovery was effected from a pillow cover from the bedding. Admittedly no pillow cover was seized in the case. When the IO can seize the said briefcase from the said maruti car, what stopped him in making seizure of the said pillow cover from which the said Rs.1.15 lacs were allegedly recovered. This recovery was totally demolished by Sh. Satnam Singh, who appeared as PW5, who disowned not only accused Rajesh as his tenant but also the recovery of the said amount at the instance of accused Rajesh. It is a surprising fact that in all the recoveries at the respective instances of the accused from different premises, even PW10, the complainant, SC No.15/11 & 16/11 Page 54/59 was not made a witness although he was available. It has been specifically admitted by the three recovery witnesses i.e. PW9, PW14 and PW16, IO of the case, in their respective cross examination that no public witness was joined at the time of recovery nor the signatures of the landlord were obtained on the seizure memo. PW9 answered in his cross examination that he stated to the IO in his statement that accused Rajesh was tenant in the house of one Sh. Satnam Singh and he was confronted with his previous statement Ex.PW9/DD where name of Sh. Satnam Singh was not found mentioned. He could not tell as to which of the yellow slip was fixed upon which of the bundles of the currency notes.

54. Coming to the recovery of Rs.5,000/­ from the premises no.B­ 22, Ram Gali, North Ghonda, Delhi, at the instance of accused Ram Kishore from the almirah lying in the room on 11.06.2005. Again, the same is not worth believing on the grounds stated above and in this regard again the three witnesses PW9, PW14 and PW16 admitted that no public person was joined in the investigation despite their availability. PW9 admitted that there were family members of accused Ram Kishore present at the said house at the time of recovery and there were houses near the house of the accused. Thus, the said recovery in the said manner is also doubtful at the instance of accused Ram Kishore.

SC No.15/11 & 16/11 Page 55/59

55. Even otherwise, the general impression coming to the judicial mind is that as to why after so many days accused would keep the said currency notes with the said yellow slips allegedly belonging to the said M/s R.N. Motors so as to be readily available to the police for the purpose of recovery and for the purpose of identification of the same. Further it is difficult to be swallowed that all the cases against accused Rajesh @ Raj were registered at PS Paschim Vihar and the investigation and facts were revolving around PP Miyan Wali, whether it be a case of kidnapping for ransom vide FIR no.1059/99 in which accused Rajesh was acquitted by the Hon'ble High Court vide judgment Ex.D1, or the case of the theft of the said maruti car vide FIR no.303/05 wherein accused Rajesh and Raj Kumar were acquitted vide judgment Ex.D2 or the present case. It is not at all worthy of any credit that accused would roam around within the same area of the PS Paschim Vihar, that too with the booty of the robbed money with yellow slips for identification of the currency notes, the firearms and the stolen maruti car so as to be conveniently available to the police of PS Paschim Vihar, particularly of PP Miyan Wali, as and when required. Moreover, the maruti car was not having its front number plate but despite so many PCR vans and otherwise availability of the traffic and other police on the road, nobody stopped the said car till it arrived at Peera Garhi Chowk, perfectly in accordance with the alleged secret information. SC No.15/11 & 16/11 Page 56/59 A fact not only strange but difficult to be believed. No documents were seized from the bank with regard to scroll number or otherwise cheques deposited allegedly by PW10, as deposed by him. In the said circumstances, the accused are acquitted of the respective charges u/s 411 IPC and 25 of the Arms Act and accused Rajesh @ Raj is given benefit of doubt and he is acquitted of the charge u/s 392/397 IPC also.

56. Coming to the case FIR no.118/11 wherein the charge against the accused is u/s 174A IPC. The accused Rajesh @ Raj was admittedly declared a PO by the then court of Ld. ASJ on 17.08.2010. The process server, who carried out the process u/s 82 and 83 Cr.PC, was SI Jogender Singh, whose statement was recorded by the then Ld. ASJ dated 17.08.2010 as CW1 in case FIR no.319/05, wherein CW1 mentioned that on 11.05.2010, he took the process u/s 82 Cr.PC of accused Rajesh who was not found residing at the address A­72, Swaran Park, Nangloi, Delhi, and the matter was made known to the public through loudspeaker and by beating of drums and one copy was pasted at the given address and another copy at the main road and at the notice board of the court premises and his report was Ex.CW1/A. He further narrated that on 17.06.2010, he again went to the aforesaid address of accused Rajesh to execute the process u/s 83 Cr.PC and the accused was not found residing there and no moveable or immovable property was SC No.15/11 & 16/11 Page 57/59 found in the name of said accused and he recorded the statement of Smt. Pyari Devi, mother of the said accused Ex.CW1/B and father of the accused Ex.CW1/C, one Amarjeet s/o Rattan Singh Ex.CW1/D and one Sh. Sat Prakash Vats Ex.CW1/E and he filed his detailed reports as Ex.CW1/F and Ex.CW1/G. But, what he narrated as CW1 was not deposed by him as PW1 in FIR no.118/11 before this court so as to give a chance to the accused to cross examine him on the said aspect. What he deposed that as per DD No.38B, he made his endorsement and got recorded the FIR No.118/11. No documentary evidence was proved by him or proved otherwise on the record that the public was made known by loudspeaker or beat of drums. No receipt for the payment of charges of the beat of drum or loudspeaker was ever produced on the record. No photo of the proclamation u/s 82 Cr.PC pasted at the house of the accused, at the main road or at the notice board of the court was produced in order to prove that it was so executed. Even otherwise, barring the parents of the accused, said Amarjeet, Sat Prakash Vats, were also not produced in the witness box nor they were examined u/s 161 Cr.PC. The satisfaction of the court concerned with regard to proclamation so made u/s 82 Cr.PC is a one sided and prima facie satisfaction, but in order to prove an offence u/s 174A IPC, it is for the prosecution to prove the same beyond reasonable doubt by producing all the relevant evidence. Thus, there is no evidence on the record whereby SC No.15/11 & 16/11 Page 58/59 it can be conclusively held that proclamation was duly published as required under sub clause (2) of Section 82 Cr.PC so as to attract the offence u/s 174A IPC. Hence, accused Rajesh Kumar @ Raj is also acquitted of the charge u/s 174A IPC.

57. The accused Rajesh Kumar @ Raj be set at liberty forthwith in both the said cases, if not wanted in any other case. The PBs and SBs of accused Raj Kumar @ Pappu and Ram Kishore @ Rame are hereby discharged. A copy of this order be placed on both the files. Both the files be consigned to the Record Room separately. (Announced in the open court on 29.05.2012) (RAKESH TEWARI) ASJ­06(OUTER) ROHINI COURTS, DELHI SC No.15/11 & 16/11 Page 59/59