Delhi District Court
State vs . on 21 February, 2018
IN THE COURT OF SHRI M.R. SETHI: ASJ-03: NORTH-WEST,
ROHINI COURTS, DELHI.
Case ID 02404R0331792015
SC No. 54/15
FIR No. 497/15
U/s 395/34 & 412 IPC
PS Subhash Place
State
Vs.
1 Sonu,
S/o Rajender Bharat,
R/o Village Sabdarpur,
PS Chand Purm, Gandhaur,
Distt. Bijnaur, UP.
2 Faizan,
S/o Mohd. Iddu,
R/o Village Kasour, PS Kiratpur,
Tehsil Nazimabad,
Distt. Bijnaur, UP.
3 Aftab,
S/o Mohd. Hamid,
R/o Village Sabdarpur,
PS Chand Purm, Gandhaur,
Distt. Bijnaur, UP.
Date of institution of the case : 14.10.2015
Date when final arguments concluded : 20.02.2018
Date of pronouncement of judgment : 20.02.2018
State vs. Sonu etc.
(FIR no. 497/15 PS Subhash Place) 1 of 17
JUDGMENT
1 Succinctly stated, allegations against the accused persons were to the effect that on the intervening night of 6 & 7, June, 2015 at about 3.30 AM accused Sonu had committed dacoity in PWD Office, Pump House, Office of Contractor Vijay Khanna near Prem Bari bridge Delhi in furtherance of common intention with Nadeem, Irfan, Salman, Usman, Umar and Islam and had robbed the employees there. Accused Salman, Usman, Umar and Islam could never be arrested in this matter while Nadeem and Irfan were declared proclaimed offenders. It was further alleged that on 8.6.15 part of looted property was recovered from premises of accused Aftab and part of the property from premises of accused Faizan. On basis of aforesaid allegations, charge was framed against accused Sonu on 1.2.16 for having committed offences punishable U/s 395/34 IPC and against Aftab and Faizan for offence punishable U/s 412 IPC. All the three accused pleaded not guilty and claimed trial. 2 During course of trial prosecution examined as many as 14 witnesses to prove its case against the accused persons. Thereafter statements of accused persons were recorded U/s 313 Cr. P.C. 3 PW-1 examined by prosecution was Ms. Sushil Bala Dagar, ld. MM who proved on record TIP proceedings Ex. PW-1/A,B,C,D & E in respect of accused Sonu who refused State vs. Sonu etc. (FIR no. 497/15 PS Subhash Place) 2 of 17 to participate in TIP proceedings. She also proved on record TIP proceedings in respect of case property as Ex. PW-1/F,G,H,I,J,K & L wherein case property had been correctly identified by the witness Raj.
4 PW-2 Pratap Chand produced in court file from the Transport Department in respect of vehicle bearing No. DL-1LQ-0532 and claimed that as per record the said vehicle was registered in the name of Sonu s/o Rajinder. Relevant documents in that regard were proved as Ex. PW-2/A,B & C. 5 PW-3 Ct. Awdesh claimed that on 7.6.15 on receipt of information in respect of DD 7A, he alongwith SI Parmod reached the spot i.e. PWD Office, Prem Bari Pul where they met the two chowkidars. He claimed that statement of one Raj was recorded on basis of which SI Parmod prepared rukka. Witness claimed having taken the rukka to PS and having brought back the rukka and copy of FIR to the spot. He claimed that search was made of the accused persons but none was found.
During course of cross examination he denied the suggestion that he had not visited the spot with SI Parmod or that no statement of any complainant was recorded in his presence. He denied the suggestion that the records were subsequently manipulated or that he was deposing falsely. 6 PW-4 Vikas was one of the eye witnesses projected by prosecution. He claimed that he used to work with Contractor Vijay Khanna and Raj and Virender also worked with him. He claimed that on 6.6.15 he was present in the office and was sleeping alongwith Raj and Virender when he woke up in the State vs. Sonu etc. (FIR no. 497/15 PS Subhash Place) 3 of 17 morning hours on or about 5.30 AM and found Raj and Virender present there alongwith police officials who informed him about the incident. He claimed that while police was conducting proceedings at the spot, he left for his duty. He claimed that he did not know anything else and police never recorded his statement.
After seeking permission from the court, witness was cross examined by ld. PP and during course of such cross examination he denied the suggestion that on that day on or about 3.30 AM Raj and Virender woke him up and informed that some thiefs had entered inside the pump house or that he saw a green coloured Champion vehicle parked in front of the gate. He denied the suggestion that he saw 8 - 10 persons entering the pump house or that when they were challenged by Raj, two of the offenders caught hold of Raj and brought him near them and made him lie on floor or that the two offenders also took out knives and pointed the same towards them asking them to keep quite. He further denied the suggestion that in the meantime two of the offenders had tied their legs with wire or that they were beaten with wooden phattas. He further denied the suggestion that the offenders also broke gate of the office of the pump house and started robbing articles lying there. He further denied the suggestion that the culprits put the robbed articles in the champion vehicle and fled away. He further denied the suggestion that some how they managed to untie themselves or that in his presence Raj made a telephone call to Vijay Khanna and to the police. He denied the suggestion that the offenders had also robbed battery of his State vs. Sonu etc. (FIR no. 497/15 PS Subhash Place) 4 of 17 Micromax mobile phone or that he had told the police that he could identify the offenders if shown to him. He denied the suggestion that he was intentionally not supporting statement made to police under threat of accused persons. Attention of the witness was specifically drawn towards accused Sonu, but he failed to identify Sonu. Witness claimed that since the occurrence took place while he was sleeping and had not seen any of the offenders committing the offence, he could not identify Sonu. He denied the suggestion that he was intentionally not identifying Sonu. Witness specifically claimed that he could not identify any battery even if shown to him, as battery of his phone was never stolen. He denied the suggestion that he was deposing falsely.
7 PW-5 HC Ram Charan proved his endorsement on rukka Ex. PW-5/A, copy of FIR Ex. PW-5/B and certificate U/s 65 B Evidence Act as Ex. PW-5/C. He also proved on record copy of DD No. 7A dated 4.6.15, PS Saraswati Vihar as Ex. PW-5/D. 8 PW-6 HC Rajesh stated about apprehension of accused Sonu on 8.6.15 and about his disclosure statement and subsequent apprehension of accused Aftab and Faizan and recoveries effected from them. He claimed that Champion three wheeler of Sonu was seized vide memo Ex. PW-6/A. He also identified his signatures on arrest documents Ex. PW-6/B,C & D. Witness claimed that the other two accused had been apprehended on pointing out of Sonu. He claimed that 4 - 5 passersby were requested to join investigation but none agreed. He deposed about seizure of the recovered articles and vide State vs. Sonu etc. (FIR no. 497/15 PS Subhash Place) 5 of 17 seizure memos Ex. PW-6/E,F & G and his signatures on arrest documents of the two accused. He also identified the case property.
During course of cross examination witness denied the suggestion that Sonu had not made any disclosure statement or had not led them to any place or identified any accused. He denied the suggestion that Sonu had been falsely implicated in this case or was compelled to sign blank papers. Witness admitted that there were other shops situated near place of recovery and admitted that none was asked in writing to join investigation at the time of recovery. He volunteered that passersby were orally asked to join investigation. Witness admitted that names of public persons who refused to join investigation were not recorded. He further claimed that in his presence IO had not demanded documentary proof of shops from the accused persons. He admitted that the recovered articles could be purchased from market. He denied the suggestion that no recovery was effected from accused Aftab and Faizan or that they had not made any disclosure statement or their signatures were obtained on blank papers. He denied the suggestion that the case property had been falsely planted on the accused. 9 PW-7 was the complainant Raj. During course of his examination in chief he echoed allegation of prosecution in this case. He also proved on record his statement Ex. PW-7/A on basis of which FIR was registered. However, witness claimed that he could not identify the culprits as it was dark and they also were in muffled faces.
State vs. Sonu etc.
(FIR no. 497/15 PS Subhash Place) 6 of 17
After seeking permission from the court, witness was cross examined by ld. PP and during course of such cross examination he denied the suggestion of having told police in his statement Ex. PW-7/A that he could identify the culprits. He denied the suggestion that on 19.6.15 he was present in PWD office where SI Parmod came alongwith accused Sonu or that he identified Sonu as being one of the culprits. Witness was inter-alia confronted with his statements Ex. PW-7/A & B in that regard. He admitted having identified the stolen goods before Magistrate in Rohini Court. When accused Sonu was specifically pointed out to witness as being one of the offenders, witness claimed that he could not identify him. He claimed that the culprits were in muffled face when they entered the godown and that it was dark. He denied the suggestion that he was deliberately not identifying accused persons having been threatened by their family members. When photographs of champion vehicle were shown to the witness, he claimed that he could not identify the vehicle. He denied the suggestion that he was deposing falsely regarding identify of accused persons or the vehicle. Witness however correctly identified the case property Ex. P-1 to P-8.
During course of cross examination by ld. Counsel for accused he denied the suggestion that no incident as claimed ever took place. He denied the suggestion of having lodged a false complaint. He further denied the suggestion of having been called at the PS and having been shown the case property before being taken for TIP proceedings. He admitted that there was no State vs. Sonu etc. (FIR no. 497/15 PS Subhash Place) 7 of 17 specific mark of PWD Department on any of the case property produced. He denied the suggestion that he was identifying the case property at instance of police.
10 PW-8 Virender too was one of the alleged eye witnesses to the incident cited and examined by prosecution. While deposing about the incident, he claimed that the culprits had also thrown a blanket and covered him as well as his friends with the same and thereafter he could not see as to what had happened. He specifically claimed that he could not identify the accused persons as it was dark and they all were in muffled faces. He further claimed that as he was only working as a helper, he could not identify the stolen goods and had not seen the goods in the godown.
After seeking permission from the court, witness was cross examined by ld. PP and during course of such cross examination when attention of witness was drawn to accused Sonu, he claimed that he could not identify the accused. Witness specifically claimed that the culprits were in muffled face when they entered the godown and it was dark. He denied the suggestion that he was deliberately not identifying the accused persons having been won over or threatened by them. He denied having identified Sonu before police as being one of the culprits. He also could not identified photographs of the champion vehicle. He could not even identify battery of mobile phone. 11 PW-9 HC Chaman proved on record PCR form Ex. PW-9/B and certificate U/s 65 B Evidence Act as Ex. PW-9/A. State vs. Sonu etc. (FIR no. 497/15 PS Subhash Place) 8 of 17 12 PW-10 SI Manjit deposed about seizure of the champion three wheeler and apprehension of accused Sonu. He further deposed about apprehension of the other two accused and the recoveries made. Witness identified his signatures on seizure memos of the seized articles and also identified the case property.
During course of cross examination witness admitted that batteries of the types recovered could be purchased from the market. He claimed that he did not know as to from where IO had brought the plastic polythene nor could he remember size and colour of the same. He claimed that the police party first of conducted raid at shop of Faizan where they had gone in private vehicles. He did not remember registration number of the vehicles. He claimed that shops were open when they reached the spot. He did not remember colour of shutter of any of the shops but claimed that the same were around 10 ft. x 10 ft. He claimed having signed the seizure memo after having read the same. He claimed that he did not know from where IO had managed the plastic sacs and could not tell colour or size of the same. He claimed that he could not say if the same were old or new. Witness specifically claimed that IO had requested some passerby to join investigation but none agreed. He did not remember the mode of conveyance used by IO for bringing case property to the PS. He denied the suggestion that no recovery was effected from accused persons or that they had not made any disclosure statements. He denied the suggestion that their State vs. Sonu etc. (FIR no. 497/15 PS Subhash Place) 9 of 17 signatures were obtained on blank papers. He denied the suggestion that case property was falsely planted upon them. He denied the suggestion that he was deposing falsely. 13 PW-11 Hemraj claimed that he was employed with Pen Communications (Pvt.) Ltd. which had installed CCTV cameras at CNG Pump Station Prem Bari. He claimed that on receipt of call regarding preservation of CCTV footage of morning hours of intervening night of 6 & 7.6.15 in respect of camera No.2 & 4, he saved the footage in a pen drive which was handed over to police and seized vide memo Ex. PW-11/1. He also identified the pen drive Ex. P-11/A. During course of cross examination, witness claimed that he himself and Manager of the CNG Station were present when recording was converted into pen drive. He did not remember the date when the pen drive was handed over to police. He claimed that he had only signed one document in the PS. He denied the suggestion that recording in the pen drive was fabricated or manipulated or that he was deposing falsely. 14 PW-12 ASI Rajbir was Incharge Mobile Crime Team who proved on record report of Mobile Crime Team as Ex. PW-12/1.
During course of cross examination witness claimed that he was not informed about make or capacity of the motors found missing. He further claimed that no details about missing cable was told to him. He denied the suggestion that he had never gone to the spot or had merely prepared report in the office at instance of IO.
State vs. Sonu etc.
(FIR no. 497/15 PS Subhash Place) 10 of 17
15 PW-13 Ct. Sandeep was photographer with Mobile Crime
Team who proved on record positive print outs of photographs Ex. PW-13/A (1 - 10). Certificate U/s 65 B Evidence Act in respect of photographs was proved as Ex. PW-13/B. He claimed that the photographs had also been converted into CD Ex. PW- 13/C. During course of cross examination, witness claimed that he had noticed SI Pramod from local police station at the spot and had not noticed any other official there. Although he claimed that office chowkidar was present, he could not say if there were one or more chowkidars. He claimed that some public persons were also present there but he could not say anything about their identity. He denied the suggestion that the photographs had not been taken by him or had been taken by some other person. 16 PW-14 was investigating officer SI Pramod, who during course of his examination in chief reiterated allegations of prosecution. He proved on record his endorsement on Ex. PW- 7/A as Ex. PW-14/1 and also claimed having prepared site plan Ex. PW-14/2. He claimed having directly recorded statement of PW Vikas Ex. PW-14/3. He also deposed about apprehension and arrest of accused persons and the recoveries made.
During course of cross examination witness claimed that SI Manjit, HC Rajesh, Ct. Ajay and accused Sonu were with him when they went to shop of accused Aftab and Faizan in his personal car which was being driven by HC Rajesh. He claimed having reached the shop at around 7.30 - 8.00 PM. Witness claimed that nearby shops in the market were open when they State vs. Sonu etc. (FIR no. 497/15 PS Subhash Place) 11 of 17 went there. Witness claimed that no site plan was prepared in respect of spot of recovery nor any photographs were taken. He claimed that all the recovered articles had been sealed at the spot which seal of PK. He claimed that kattas used to prepare the pullandas were with him in his IO bag and all 8 - 9 kattas were of white colour. He did not remember name of the constable to whom seal was handed over after use. He did not remember if they had firstly gone to shop No.7 or to shop No.8. He claimed that there was no marking of government or any Department on the recovered articles. Witness claimed that some of the neighbouring shopkeepers had been called upon to join proceedings, but none agreed. No notice was claimed to have been served on any of them nor any action taken in respect of their refusal to join proceedings. Witness claimed that they had gone to the shops in his D zire. Although owners of the shop were claimed to have been interrogated, witness claimed that no rent receipt could be collected. He admitted that owners were not cited as witnesses. The recovered articles were claimed to have been brought from spot of recovery to the PS in D zire car. He claimed that all seven of them also travelled in the same car. Witness claimed that they had gone to shops of Aftab and Faizan immediately after apprehension of Sonu and the champion vehicle had been taken alongwith them to the shops. He did not remember as to who drove the same or as to how it was taken to the PS. Witness admitted that seizure memo of mobile phone battery Ex. PW-6/G did not mention about it being converted into a pullanda or being sealed. He denied the suggestion that State vs. Sonu etc. (FIR no. 497/15 PS Subhash Place) 12 of 17 nothing incriminating was recovered at instance of any of the accused persons or that they had been falsely implicated after being picked up from their respective houses. He denied the suggestion that he was deposing falsely.
17 As no other witness was left to be examined, prosecution evidence was closed. Thereafter statements of accused persons were recorded U/s 313 Cr. P.C. All claimed that they were innocent and had been falsely implicated in this case. 18 During course of his submission it was submitted by ld. PP for State that recoveries of the looted articles at instance of accused Faizan and Aftab had been duly proved during course of testimonies of HC Rajesh (PW-6), SI Manjit (PW-10) and the IO (PW-14) SI Parmod. It was claimed that the same had been duly identified by the complainant during course of judicial TIP. Ld. PP further submitted that although witnesses of the spot had not identified accused Sonu as being one of the culprits, CCTV recording wherein registration No. of the champion vehicle was clearly visible was enough circumstance to prove culpability of Sonu. It was pointed out that the CCTV recording at the CNG Pump Station was approximately of the same time when the dacoity had been committed. It was prayed that accused persons be convicted and sentenced accordingly.
19 Ld. Counsel for accused persons on the other hand submitted that none of the eye witnesses including the complainant had identified Sonu as being one of the culprits. It was further submitted that merely because Tempo of Sonu was seen at the CNG Pump Station, it cannot be said that it was State vs. Sonu etc. (FIR no. 497/15 PS Subhash Place) 13 of 17 involved in the incident. Ld counsel further submitted that there was no independent witness to the alleged recoveries and that there were inherent contradictions in testimonies of the witnesses of alleged recoveries which made their testimony doubtful. It was prayed that accused persons be acquitted.
20 This court has given thoughtful consideration to arguments advanced and has also perused the records.
21 Perusal of record reveals that the complainant and the other alleged eye witnesses when examined as PW-7,4 & 8 respectively have not identified Sonu as being one of the culprits who had participated in the dacoity on the day of incident. The complainant specifically claimed that as it was dark and the culprits were in muffled faces, he could not identify any of the accused. When accused Sonu was specifically pointed out to him during course of cross examination by ld. APP for State, he specifically claimed that he could not identify him as being one of the culprits. To similar effect was testimony of PW-4 Vikas who claimed that as the occurrence took place while he was sleeping, he had not seen any of the offenders committing the offence and could not identify accused Sonu. PW-8 Virender also claimed that he could not identify the culprits as it was dark and they were in muffled faces. That being the position, it is apparent that none of the witnesses had identified Sonu as being one of the culprits. 22 As regards the champion vehicle, prosecution has sought to place reliance on the fact that the said tempo was seen at nearby CNG Pump Station around time of incident. No doubt, the said vehicle belongs to accused Sonu, but mere fact that it State vs. Sonu etc. (FIR no. 497/15 PS Subhash Place) 14 of 17 was found present at the CNG Pump Station around time of incident cannot lead this court to form an opinion regarding the vehicle having been used in the dacoity at the time of incident. Significantly no vehicle number was mentioned in statement of the complainant on basis of which FIR was registered and there is nothing to link the vehicle with the vehicle involved to the incident.
23 As regards the recoveries made, case of prosecution revolves around testimonies of PW-6 HC Rajesh, PW-10 SI Manjit and PW-14 SI Parmod. It may be mentioned that Ct. Ajay was dropped by prosecution after seeking permission of court. 24 The alleged recoveries of stolen property were claimed to have been effected from godowns of accused Aftab and Faizan at Nangloi, Prem Nagar, Kirari opposing liquor shop. Admittedly the said shops were situated in a crowded place but no other independent public person had been cited as a witness to the recoveries. No genuine attempt appears to have been made by the investigating agency to call upon any of the neighbouring shopkeepers or any other person to join the proceedings even after apprehension of the accused persons. In absence of any independent corroboration, bald testimonies of police officials have to be looked into with great care and caution. 25 As regard proceeding to the godown, it was claimed by PW-10 SI Manjit that they had gone to the shop in private vehicles. He did not remember registration number of vehicle and claimed that driver thereof had not been cited as witness as he remained present in the car. PW-14 SI Parmod on the other State vs. Sonu etc. (FIR no. 497/15 PS Subhash Place) 15 of 17 hand claimed that all of them had travelled together in his D zire car which was driven by HC Rajesh. This contradiction has not been reconciled by prosecution.
26 While PW-6 claimed that IO had not demanded documentary proof of Shop No. 7 & 8 from accused persons, IO had claimed that he did interrogate the shop owners but did not record their statements.
27 While PW-10 claimed that he did not know from where IO had managed the plastic bags and did not remember if the same were old or new, PW-14 SI Parmod claimed that all the kattas were with him in his IO bag and all were of white colour. 28 It was specifically claimed by the witnesses that none of the articles recovered had any stamp or marking of any Government Office or Department. As per allegations theft had been committed from PWD office. It is known fact that all Government properties kept in Government offices bear stamp/marking of the respective Departments. 29 A fanciful story had been put forth by IO PW-14 who claimed that after arrest of accused Sonu, the champion vehicle had been taken by the police party to the godowns. He claimed that he did not remember who drove the same till the godowns or back tot he PS. He also had specifically claimed that all seven of them i.e. three accused and four police officials had travelled in his D zire car. This by itself puts in doubt genuineness of story regarding the champion vehicle.
30 It would not be out of place to mention herein that the allegedly recovered property consisted of one ceiling fan, one State vs. Sonu etc. (FIR no. 497/15 PS Subhash Place) 16 of 17 grinder cutter machine, one big drill machine, one electronic drill hammer machine, one hand grinder machine, two rolls of aluminum wire, two bundles of copper wire, 11 small bundles of aluminum wire, one mini transformer and three cylinders of fire extinguishers. PW-14 wants this court to believe that all the said articles kept in kattas alongwith four police officials and three accused in custody had travelled in one car to the PS. In opinion of this court it is too much to be believed.
31 Be that as it may, fact remains that the alleged recoveries had been effected from public place i.e. Godowns situated in a place which was surrounded by other shops and there were public persons present there. Non joining of any independent public person at the time of alleged recovery and inherent contradictions in testimonies of the police officials make the allegations of recovery doubtful.
32 As there is no incriminating evidence on record against accused Sonu regarding his having committed dacoity and as allegations of recovery of looted property at instance of other two accused is doubtful, this court is of considered opinion that no order of conviction can be passed against any of the accused persons.
33 Consequently, all the three accused are ordered to be acquitted in this case.
Announced in open court (M.R. SETHI)
on 21.2.2018 ADDL.SESSIONS JUDGE - 03,
NORTH WEST, ROHINI COURTS,
NEW DELHI.
State vs. Sonu etc.
(FIR no. 497/15 PS Subhash Place) 17 of 17