Delhi District Court
State vs Santosh Nayyar @ Nepali Etc. on 26 March, 2011
IN THE COURT OF SHRI SANJAY SHARMA
ADDITIONAL SESSIONS JUDGE - I (EAST)
KARKARDOOMA COURTS : DELHI
SC No. 16/2010
Unique Case ID No. 02402R0421932007
FIR No. 209/2007
PS Shakarpur
Under Section 394/397/34 IPC
State Versus Santosh Nayyar @ Nepali etc.
1. Santosh Nayyar @ Nepali S/o Vitthal Nayyar
(since declared P.O)
2. Kamlesh Mishra S/o Bharat Mishra
R/o Village Akhenia , PS Mufasil,
District Siwan , Bihar
3. Ramesh S/o Kunwar Bahadur
R/o Rao Colony, Ballabh Garh ,
Faridabad, Haryana
Date of Institution of Case : 21.7.2007
Date on which judgment Reserved : 17.3.2011
Date on which judgment delivered : 26.3.2011
J U D G M E N T :
The case of the prosecution in brief is that a DD No. 71B was received at PS Shakarpur on which SI Bhanu Pratap alongwith Ct. Yogender reached Vikas Marg, near ITO bridge, Thokar No. 8, Laxmi Nagar, Delhi where he found one motor cycle No. DL7S X5022 make TVS parked there. On inquiries he came to know that injured has gone to Walia Nursing Home. SI FIR No. 209/2007 1 of 13 Bhanu Pratap reached there and met complainant Virender Barwa who was posted as SubInspector, Radio Technician in Delhi Police and he stated that on 13.3.2007 at about 9.15 PM he was returning to his house at Shakarpur after finishing his duties on his motor cycle No. DL7S X5022 make TVS Victor and when he reached near Rainy Well Bus stop, he stopped his motor cycle for urinating and went towards railing for it. He further stated that in the meanwhile, one boy came from behind and pushed him towards railing after putting his hand between his legs and when he was about to fall, three other boys surrounded him out of whom one was having a knife, who threatened him on the knife point and asked him to give his belongings and that boy snatched his gold chain from his neck and another boy removed his gold ring from his right hand finger while the third boy took out his purse which was containing his ICard and another documents along with cash Rs.400/. Complainant further stated that those boys further demanded his belongings and when he tried to escape, the boy who was having a knife, gave a knife blow on his right hand and left leg near the knee and took his search and removed his mobile phone make Motorola along with its leather case. He further stated that thereafter those boys demanded key of his motor cycle but it went missing during the scuffle on which they asked him to run towards Shakarpur Chungi which he did and informed the PCR on duty there and thereafter PCR officials took him to LBS Hospital from where he was discharged after first aid and for better treatment, he reached Walia Nursing Home himself.
2. On the basis of said statement, present case was registered for the offence punishable under Section 394/34 IPC and portraits of the accused were got prepared. On 20.3.2007 accused Santosh Nayyar @ Nepali (since P.O) was FIR No. 209/2007 2 of 13 arrested in case FIR No. 246/2007 by AntiSnatching Cell, West District, Paschim Vihar and he made disclosure statement regarding his involvement in the present case. A country made pistol was recovered from him in the said case. On receipt of DD No. 50B , SI Bhanu Pratap arrested the said accused and he disclosed the names of Kamlesh Mishra , Ramesh Mishra and one Madan as his associates involved in the present incident.
3. Accused Ramesh Mishra and Kamlesh Mishra were arrested in this case on 09.6.2007 in pursuance to their disclosure statements made by them after their arrest in case FIR No. 207/2007 of PS Shakarpur U/S 394/34 IPC. One knife and a mobile phone make Motorola were got recovered by accused Kamlesh Mishra from the house of his fatherinlaw at Village Behrampur, PS Vijay Nagar, Ghaziabad, UP. Accused Ramesh Mishra got recovered two purses from the house of one Neeley, where he used to reside, at Rao Colony, Ballabhgarh , Faridabad, Haryana and out of one purse, Icard of complainant along with a cash memo, some slips of ATM Card, some visiting cards and a small Hanuman Chalisa were recovered. The recovered articles were identified by the complainant.
4. After conclusion of investigation, charge sheet was firstly filed against accused Santosh Nayyar @ Nepali (since P.O) for the offences punishable under Section 394/397/34 IPC and then supplementary charge sheet was filed against accused Ramesh Mishra and Kamlesh Mishra for the said offences.
5. After both the charge sheets were committed to the court of FIR No. 209/2007 3 of 13 Sessions and on considering the material on record, charge dt. 07.12.2007, was framed against all the three accused for the offences punishable under Section 394/34 IPC r/w Section 397 IPC and a separate charge against accused Santosh Nayyar @ Nepali (since P.O) was framed for the offence punishable under Section 397 IPC, to which they pleaded not guilty and claimed trial. An additional charge for the offence punishable under Section 411 IPC was framed against each of the accused Ramesh Mishra and Kamlesh Mishra for the recoveries effected from them, vide order dt. 01.6.2010, to which they both pleaded not guilty and claimed trial.
6. 16 witnesses were examined by the prosecution at the trial. PW1 Virender Kumar Barwa was the complainant who deposed the above facts and identified all the three accused in Court. He proved his statement/complaint as Ex.PW1/A . He further proved the TIP proceedings of accused Santosh Nayyar @ Nepali (since P.O), Kamlesh Mishra and Ramesh Mishra as Ex.PW1/B, PW1/C and PW1/D respectively. He further identified his mobile phone as Ex.P1 and his purse along with its contents as Ex.P2 and the superdarinama vide which he obtained these articles on superdari as Ex.PW1/E. He further proved the photograph of his motor cycle as Ex.PW1/F and that of his purse, I Card and mobile phone as Ex.PW1/G. He also identified his woolen glove as Ex.P3, his pant as Ex.P4, his shirt as Ex.P5 and his jacket as Ex.P6.
PW2 ASI Yashpal was a witness to the pointing out of the place of occurrence by accused Santosh Nayyar @ Nepali (since P.O) and proved its memo as Ex.PW2/A . PW2(A) (wrongly numbered as PW2 again) Ct. Ranvir from AntiSnatching Cell, West District, joined the investigation of case FIR No. 246/07 U/S 411 IPC of PS Paschin Vihar registered against accused FIR No. 209/2007 4 of 13 Santosh Nayyar @ Nepali (since P.O) and his associate Ajay, on 20.3.2007 and he proved the disclosure statement of accused Santosh Nayyar @ Nepali (since P.O) as Ex.PW2/A in which he disclosed about his involvement in the present case.
PW3 Shri Sameer Bajpai, Ld. MM proved the TIP proceedings of accused Santosh Nayyar @ Nepali (since P.O) as Ex.PW3/A and PW3/B . PW3(A) (wrongly numbered as PW3 again) HC Davinder Kumar was the Duty Officer who proved the copy of FIR as Ex.PW3/A and his endorsement on the ruqqa as Ex.PW3/B .
PW4 SI KP Singh of PS Kamla Market deposed that accused Kamlesh and Ramesh were arrested in case FIR No. 189/2007 U/S 302/393/397/34 IPC of PS Kamla Market in which they made disclosure statement regarding their involvement in the present case, in pursuance of which accused Kamlesh got recovered one knife and a mobile phone from the house of his fatherinlaw at Behrampur Village, PS Vijay Nagar, Ghaziabad, UP and were seized vide memo Ex.PW4/A . PW4 further deposed that accused Ramesh got recovered two purses of brown colour from his house, one of which was containing ICard in the name of complainant, some slips of ATM Card, visiting card and one small Hanuman Chalisa which were seized vide memo Ex.PW4/B . PW4 further proved the disclosure statement of accused Kamlesh as Ex.PW4/C and of accused Ramesh as Ex.PW4/D. PW5 SI Raj Mal proved the copy of FIR No. 246/2007 of PS Paschim Vihar as Ex.PW5/A . PW6 Ct. Yogender accompanied IO/SI Bhanu Pratap on receipt of DD No. 71B regarding the present incident and was a witness to the seizure memo of motor cycle No. DL7S X5022 and proved it as Ex.PW6/A . PW7 HC Ajay Kumar was the MHC(M) of PS Kamla Market FIR No. 209/2007 5 of 13 and he proved the entry made in Register No. 19 as Ex.PW7/A regarding deposit of case property, i.e. mobile phone, Icard, purse. PW8 HC Subhash Chand was the photographer who took 14 photographs at the spot and he proved their negatives as Ex.PW8/1 to 14. He further proved the photographs of the motor cycle and the spot as Ex.PW1/F and PW1/G. PW9 HC RT Narayan proved the copy of FIR No. 189/2007 of PS Kamla Market as Ex.PW9/A .
PW10 Shri Naresh Kumar - Ld. MM proved the TIP proceedings in respect of accused Ramesh and Kamlesh as Ex.PW10/A to PW10/B and Ex.PW1/D to PW1/E respectively. PW11 ASI Shiv Kumar arrested accused Santosh Nayyar @ Nepali (since P.O) and his associate Ajay in case FIR No. 246/07 of PS Paschim Vihar and recorded the disclosure statement of accused Santosh Nayyar @ Nepali (since P.O) which is Ex.PW2/A .
PW12 SI Bhanu Pratap was the IO of this case and he deposed about the proceedings conducted by him. He proved the ruqqa as Ex.PW12/A and the site plan as Ex.PW12/B . He further proved the seizure memo of the blood stained clothes of the complainant as Ex.PW12/C and his gloves as PW12/D and also the seizure memo of blood samples lifted from the spot as Ex.PW12/L, PW12/M, PW12/N and PW12/O. He also proved the arrest memo of accused Santosh Nayyar @ Nepali (since P.O) as Ex.PW12/E and his disclosure statement as Ex.PW12/F, arrest memo of accused Ramesh and Kamlesh as Ex.PW12/G and PW12/H respectively and their disclosure statements as Ex.PW12/J and PW12/K respectively. He further proved the other relevant documents as stated herein above and identified the case property, i.e. blood stained clothes of the complainant and his gloves and blood samples lifted from the spot, as Ex.P1 to P10.
FIR No. 209/2007 6 of 13 PW13 Ins. Rakesh Giri was posted as SHO, PS Kamla Market on 17.5.2007 and he deposed about the arrest of accused Kamlesh Mishra and Ramesh Mishra in case FIR No. 189/2007 U/S 302 IPC PS Kamla Market and the recoveries effected at their instance in pursuance of their disclosure statements. PW14 SI Sharad Kohli was from AntiSnatching Cell, West District, Paschim Vihar and he deposed regarding the arrest of accused Santosh Nayyar @ Nepali (since P.O).
PW15 Dr. MN Singh proved the MLC of injured Virender as Ex.PW15/A . PW16 Shri Vikas Kumar - Asstt. Ahlmad from the Court of Shri OP Gupta - Ld. ASJ, brought the original case file of case FIR No. 189/2007 U/S 302/392/394/397/34 IPC of PS Kamla Market and proved the original seizure memo of mobile phone and purse as Ex.PW16/A and Ex.PW16/B respectively.
7. Statement of accused all the three accused were recorded under Section 313 Cr. PC and the entire incriminating evidence was put to them which they denied and pleaded innocence. They claimed to have been falsely implicated in this case. All the three accused chose to lead evidence in their defence. However, only accused Santosh Nayyar @ Nepali (since P.O) examined one Mahesh Kumar as DW1 who deposed that he was lifted by three persons in the way on 19.3.2007 at about 11.30 PM on the pretext that they were police officials and they would release him later. The other two accused did not examined any witness despite availing opportunity for the purpose.
8. It is pertinent to mention here that thereafter accused Santosh Nayyar @ Nepali started evading his appearance in the Court and he was FIR No. 209/2007 7 of 13 ultimately declared "Proclaimed Offender" vide order dt. 31.1.2011.
9. I have heard Ld. APP for the State, Shri LMS Bisht - Adv. for the accused persons and have carefully gone through the case file.
10. In the instant case, three accused were arrested on the basis of the disclosure statement made by them in different cases. Pursuant to their said disclosure statements, no article pertaining to this case were recovered from accused Santosh Nayyar @ Nepali (since P.O), while accused Kamlesh Mishra got recovered the mobile phone of the complainant from the house of his fatherinlaw and accused Ramesh Mishra got recovered the purse of the complainant from his house. All the three accused were identified by the complainant during his testimony recorded in the Court. Ld. Counsel for the accused pointed out various contradictions in the testimony of the complainant as well as the other witnesses of recovery to show the innocence of the accused.
11. According to the complainant/PW1, he was robbed by four boys. However, only three accused have been arrested and there is absolutely no whisper in the entire evidence about the fourth boy. Though the name of fourth boy was mentioned in the charge sheet as Madan which was disclosed by accused Santosh Nayyar @ Nepali (since P.O) in his disclosure statement, but there is no mention as to whether any effort was made by the IO to trace him. Hence, the presence of the three accused at the time of alleged incident becomes doubtful. There are material contradictions in the testimony of PW1 which requires mention . PW1 deposed that he was pushed from the flyover as a result of which he fell down in the fields below wherein he was accosted by FIR No. 209/2007 8 of 13 three more boys. On his protest, one boy having knife attacked upon him and he sustained injury on his right hand and left knee. As per the testimony of PW15, who had medically examined the complainant, no injury on his knee was observed by him.
12. In his examinationinchief, PW1 deposed that those boys had broken the diggi of his motor cycle and searched the same. But in his cross examination he deposed that it was not broken in his presence and he found it broken when he received it on superdari. The fact and the manner of his approaching the PCR at the Chungi Shakarpur is also recorded differently. In his examinationinchief, he deposed that he ran and reached at the Chungi where he met the PCR. In his crossexamination he deposed that since he was injured, he walked to some distance and then he took lift on a 2wheeler scooter and reached Shakarpur Chungi. He was confronted of his improvement with his statement Ex.PW1/A where this fact was not recorded.
13. According to the complainant, he on his own went to Walia Nursing Home from LBS Hospital where his statement was recorded. No medical record from Walia Nursing Home has been proved on record. There is further contradiction regarding the manner in which his statement was recorded. PW1 deposed that the IO was accompanied by one constable and one other official and all three were in uniform, whereas according to PW6, who reached the spot with the IO, only IO/SI Bhanu Pratap had gone to the hospital for recording the statement of PW1. PW12/IO also deposed likewise deposing that he alone went to the hospital and recorded the statement. There is also contradiction regarding the manner in which the motor cycle was taken to the FIR No. 209/2007 9 of 13 PS, as PW4 deposed that since the keys of the motor cycle could not be found and its engine was also found to be off, hence he took the motor cycle to the PS manually. If the motor cycle was locked, its handle could not be moved and in that position it was not at all possible for anyone to move the motor cycle physically anywhere.
14. The most important aspect of the case is the identity of the three accused. All three of them were identified by the complainant during the judicial TIP as well as in the Court. This would apparently lead to a conclusion that the identity of the accused has been established by the prosecution beyond any doubt. However, the crossexamination of the complainant is suggestive of something else. Firstly, he could not produce any receipt of having purchased the gold chain and ring allegedly robbed by the accused. Secondly, he also could not identify specifically as to which accused robbed which of his article. In his examinationinchief, he deposed that one boy snatched his ring, another his wallet and another his mobile phone. In the crossexamination he deposed that he could not say which of the accused snatched which of his article as it was dark. In case it was dark at the time of incident and he could not see the faces, how could he identify the accused Kamlesh Mishra and Ramesh Mishra in the TIP on 27.6.2004, i.e. after about three months and 14 days of the incident. This clearly raises a doubt that the accused, who were already arrested in some other case, had already been shown to him. This argument is fortified by the further crossexamination of PW1 when he deposed that though he was not formally informed about the arrest of accused persons, however, he had gathered this information (mujhe pata lag gaya tha). It is not to be forgotten that the complainant himself is a police official of the rank of SubInspector FIR No. 209/2007 10 of 13 and thus, the possibility of the accused having been shown to him before the TIP could not be ruled out altogether, considering the fact that the accused were arrested on the basis of their disclosure statement and there was no other eye witness to the alleged incident. Hence, to my mind, despite the identification of the accused by the complainant during the TIP as well as before the Court, the same is highly doubtful.
15. Once the identity becomes doubtful, the only incriminating evidence against the accused remains the recovery effected from them. The mobile phone of the complainant was allegedly recovered on 17.5.2007 from accused Kamlesh when he was arrested in case FIR No. 189/2007 of PS Kamla Market. It was found kept in the bed of the room of the house of his fatherin law. There are sufficient contradictions in the testimony of the recovery witnesses. According to PW4, who was one of the recovery witness, five police officials went to the said house in a white colour Qualis while PW13, who was also a member of the raiding party, deposed that they were seven police officials and went in a blue colour Qualis. They deposed about the location and direction of the said house differently. PW4 deposed that the motherinlaw and wife of accused Kamlesh were present in the house with one elderly lady, while PW13 deposed that wife, motherinlaw and fatherinlaw of Kamlesh were present. Similar contradictions have appeared regarding the recovery effected from accused Ramesh about the purse of the complainant. PW4 deposed that the gali in which the said house was located, was 2025 feet wide while PW13 deposed that it was 1012 feet in width. The purse was recovered from an iron box. Its dimension was deposed by PW4 to be 3/3½ feet, while PW13 deposed it to be 2 X 3 feet. PW4 deposed that it was lying in the NorthEast direction in FIR No. 209/2007 11 of 13 the room while PW13 deposed that it was lying in the SouthWest corner. PW4 deposed that the parents and wife of accused Ramesh were present in the house while PW13 deposed that the wife, mother and sister of Ramesh were present. Admittedly none of them were joined in the investigation . These are material contradictions which make the recovery doubtful.
16. Apart from the aforesaid, the identity of the mobile phone could also not be established. In the complaint on which the present case was registered, PW1 did not even mentioned the SIM card number of his phone nor its IMEI number. The said phone was never subjected to judicial TIP. Hence, its identity could not be established on record and accordingly this recovery also becomes doubtful. Similarly, the purse allegedly recovered from accused Ramesh was also never subjected to any judicial TIP. It is hard to believe that the accused would retain the purse with the ICard of the complainant and his personal belongings after removing the cash for more than two months with him, only to be nabbed by the police.
17. Hence, in my opinion the prosecution has failed to establish the identify of accused Kamlesh Mishra and Ramesh Mishra and has further failed to link them with the alleged incident. The recoveries allegedly effected from the said accused are also highly doubtful and no reliance can be placed upon them. An amended charge U/S 411 IPC was also framed against each of accused Kamlesh and Ramesh but in view of the aforesaid, the said charge could also not be proved by the prosecution. Accordingly, both the accused namely Ramesh Mishra and Kamlesh Mishra are hereby acquitted of the offences punishable under Section 394/397/34 IPC and Section 411 IPC. They FIR No. 209/2007 12 of 13 are set at liberty. They be released from custody if not wanted to be detained in any other case.
File be consigned to Record Room and be summoned again as and when accused Santosh Nayyar @ Nepali appears or is otherwise arrested as P.O. ANNOUNCED IN OPEN COURT ON 26th day of March 2011 (SANJAY SHARMA) ADDL. SESSIONS JUDGE(EAST) I KARKARDOOMA COURTS : DELHI FIR No. 209/2007 13 of 13