Delhi District Court
State vs . (1) Umed @ Monu on 18 April, 2022
FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 IN THE COURT OF SHRI VISHAL GOGNE: ADDL. SESSIONS JUDGE04 : SOUTHWEST DISTRICT, DWARKA COURTS: NEW DELHI Registration No.440899/2016 CNR No. DLSW0100011652014 State Vs. (1) Umed @ Monu S/o Sh. Ram Kumar R/o VPO Bhagalpur, Beri, PS Beri, Distt. Jhajjar, Haryana. (2) Sombir @ Bhero S/o Balbir R/o VPO Bhagalpur, Beri, PS Beri, Distt. Jhajjar, Haryana. (3) Vikram @ Vicky S/o Mohan Lal R/o VPO Bhagpur, Beri, PS Beri, Distt. Jhajjar, Haryana (4) Vishwanath S/o Ram Ajhor VPO Bhargawa PS Hariya Distt. Basti (UP) & R/o B61, Aggar Nagar Prem Nagar, PartIIIrd Delhi (5) Virender @ Binder (PO) (6) Jitender Thakur @ Chottu (PO) State V/s Umed @ Monu & Ors. Page 1 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 FIR No. : 208/2013 Police Station : BHD Nagar Under Sections : 395/397/412/34 IPC Date of committal to Sessions Court : 16.01.2014 Date on which judgment was reserved: 13.04.2022 Date on which Judgment pronounced : 18.04.2022 JUDGMENT
BRIEF FACTS OF THE CASE:
1. The present trial relates to offences punishable under sections 395/397 and 412 IPC.
2. The FIR in question was recorded on the statement (Ex.
PW1/A) made by complainant namely Krishan Major (PW1) with respect to the incident dated 28.08.2013 which occurred at the Ply factory, Surakhpur Road, Gopal Nagar, Najafgarh, Delhi at about 1:001:30 pm in the morning.
3. The complainant stated that he was a supervisor in the factory in question and the owner of the factory was Vinod Kumar Bansal (PW4). On the intervening night of 27.08.2013 and 28.08.2013, the complainant was present at the factory with other employees namely Nand Kishore, Ram Kumar and Chandan Kumar while the owner namely Vinod Kumar Bansal and other employees had left at about 9:30 10:00 pm. The above four employees slept after dinner at about 11:30 pm. At State V/s Umed @ Monu & Ors. Page 2 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 about 1:00 - 1:30 am, some persons threatened the complainant with a pistol like object and woke him up by threatening him. Four assailants armed with pistol like weapons entered the room, switched on the light and asked for the keys of the safe from the four employees. On their refusal, the assailants tied their hands and feet by gagging their face with torn bedsheets and mosquito nets. The assailants also parked a Canter of an unknown registration number outside the factory and started loading ply board and other articles. They kept threatening the four employees and escaped with the said articles. The complainant somehow untied himself and called the owner namely Vinod Kumar Bansal using the phone of Ram Kumar. The owner called PCR No.100 to then inform the police.
4. The complainant further specified that he had learnt that the four assailants escaped with 30 aluminum sheets measuring 8 x 4, 22 plies plus boards, one compressor, one cylinder, one TV (Samsung), Rs. 36,000/ in cash, one inverter, one motorcycle of the make Splendor bearing HR No. 42B 1684, six electric motors, six cutter boxes, some iron girders, pipes, angles, a mobile phone of the company Micromax belonging to Nand Kishore (No. 8802235602) and a mobile phone of the make Nokia bearing the number 971602037 State V/s Umed @ Monu & Ors. Page 3 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022
5. The complainant stated that he could recognise the assailants if brought before him.
6. The circumstances of the arrest of various accused persons, emerging from the chargesheet, is as under:
7. On receipt of information from PS Beri, Jhajjar, Haryana on 23.09.2013 that three accused namely Virender, Vikram and Sombir had been arrested in FIR No. 263/2013 under sections 399/402 IPC and section 25 Arms Act at the said police station, the said accused were arrested in the present FIR. These accused persons refused to participate in he TIP but during their police custody led the police to the godown of accused Vishwanath at Khasra No. 25/1/29, Village Tikri Kalan, Delhi. The robbed articles were purportedly recovered in the presence of the owner of the factory where the robbery was committed i.e. Vinod Bansal.
8. Coaccused Umed @ Monu was later learnt to have been arrested in FIR No. 322/2013 dated 11.09.2013 under section 25 Arms Act, PS Sampla, Rohtak. After the said accused was released from custody in the said FIR on 16.10.2013, he was later arrested on secret information in the present case on 24.10.2013 at Najafgarh, Delhi. Accused Vishwanath was arrested on 21.11.2013.
State V/s Umed @ Monu & Ors. Page 4 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022
9. Accused Jitender was declared a proclaimed offender on 29.01.2014.
10. The chargesheet was filed against accused Virender, Vikram, Sombir & Umed @ Monu under sections 392/395/397/34 IPC and against accused Vishwanath under section 412 IPC.
11. The four accused persons were tried upon the following articles of charge.
"That on 28.08.2013, between 01:00 AM to 02:00 PM, in ply factory, Sukhpur Road, Gopal Nagar, Najafgarh, ND within the jurisdiction of PS BHD Nagar, you all alongwith all your associates (since absconding) in furtherance of common intention committed dacoity with the aid of pistol in the said factory and thereby you all have committed the offence of dacoity punishable u/s 395 IPC and within my cognizance.
Secondly, on the above said date, time and place you all while committing dacoity used deadly weapons i.e. pistol and thereby all of you committed offence punishable u/s 397 IPC and within my cognizance.
And I hereby direct that you all to be tried for the abovesaid offence by this court.
ASJ04: DELHI/18.03.2014"
12. An additional charge was separately framed against accused Vishwanath under section 412 IPC as under: "That you dishonestly received and retained the possession of property contained in a canter which you knew or had a reason to believe that belonged to the gangs of dacoits State V/s Umed @ Monu & Ors. Page 5 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 (accused in the present case), and the said property was robbed by the accused on 28.08.2013, between 01:00 AM to 02:0 PM, in ply factory, Surakhpur Road, Gopal Nagar, Najafgarh, New Delhi, within the jurisdiction of PS BHD Nagar, hence, you have committed the offence punishable u/s 412 IPC and within my cognizance.
And I hereby direct that you all to be tried for the abovesaid offence by this court.
ASJ04: DELHI/02.05.2014"
13. Accused Virender stopped appearing in the proceeding during the course of trial and was declared a proclaimed offender vide order dated 07.08.2015.
14. The prosecution examined as many as 40 witnesses in support of the above articles of charge. However, it was agreed by the Ld. Prosecutor and the respective counsels for the accused persons that the material witnesses qua the charge under sections 395/397 IPC were the complainant namely Krishan Major (PW
1) and three other employees present at the time of incident viz Ram Kumar ( PW2 ), Nand Kishore (PW3), Chandan (PW5). The owner of the factory namely Vinod Bansal (PW4) was also cited as a material witness. While PW1, PW2, PW3 and PW5 were cited as eye witnesses, the deposition of PW4 was cited as a supporting account to the above witnesses.
15. It is also noted as a preface to the further discussion of evidence that PW3 and PW5 did not identify either accused State V/s Umed @ Monu & Ors. Page 6 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 person as being among the robbers and were indeed hostile witnesses. PW2 did not identify accused Sombir and Vikram and alluded to the identity of accused Umed but rendered a contrary account during his cross examination by the State.
16. The prosecution and the counsels for the accused were,however, at contention with each other regarding the deposition of PW1. While the Ld. APP stated that this witness had identified the four accused persons as the assailants, the defence counsels contended that the purported identification had been made only during cross examination of PW1 by the prosecution.
17. The deposition of PW1 and the other eye witnesses shall be discussed in greater detail in the later part of judgment. The role of the other witnesses may firstly briefly recounted as under.
18. The first category of bulk witnesses examined to explain the arrest and investigation regarding accused Sombir and Vikram as well as Virender (since PO) were PW12, PW14, PW15, PW19, PW20, PW28, PW29, PW30, PW36 and PW38.
19. The essential highlight of the deposition of these witnesses emerges from the account given by PW20 and PW29 i.e. HC Paramjeet Singh and SI Ravinder Kumar. PW20 deposed that on 23.09.2013, during patrolling duty at Bhagalpur Chowk, Beri, State V/s Umed @ Monu & Ors. Page 7 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 Jhajjar and upon secret information regarding six persons planning to commit a dacoity, accused Virender (since PO), Vikram and Sombir were apprehended by the police party. A country made pistol was recovered from accused Virender and an iron pipe was recovered from accused Sombir. The seizure memo and sketches of these purported weapons were Ex. PW19/F, PW19/H, PW19/I and PW19/K respectively. PW29 deposed in consonance with PW20.
20. The SHO from PS Beri, Jhajjar, Haryana (PW28) Inspector Ajay Kumar deposed that he himself had peeped into a room at Bakra Mor, Jhajjar to see six persons, in the light of a candle planning to commit a dacoity. It was upon his information that FIR No. 263/2013 under section 399/402 IPC and section 25 Arms Act was recorded by Duty Officer SI Rajinder Singh (PW12) who proved the said FIR as Ex. PW12/A. The MHCM from PS Beri, Haryana i.e. PW14 brought the iron rod and country made pistol for identification while PW15 (HC Jagdeep Kumar) and PW30 (HC Jaipan Singh) deposed that the three arrested persons were interrogated in their presence. They proved the disclosure statement of these three accused namely Virender, Vikram and Sombir as Ex. PW15/A to Ex. PW15/C respectively.
State V/s Umed @ Monu & Ors. Page 8 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022
21. HC Vijay (PW36) was the police official who gave the opinion (Mark 36/A) regarding the pistol found from accused Virender being in working order whereas PW38 was the Ahlmad from the office of the District Magistrate, Jhajjar, Haryana who brought on record the sanction order (Ex. PW19/C) under section 25 Arms Act in FIR No. 263/13, PS Beri.
22. The other set of bulk witnesses examined in the context of the apprehension of accused Umed were PW16, PW17, PW21, PW34, PW35, PW37 and PW40.
23. The circumstances of arrest of accused Umed were explained by PW17 SI (Manjeet) from PS Sampla, Rohtak, Haryana. This witness stated that during patrolling duty in the area of East Bypass, Rohtak, Sampla at about 5:15 pm on 11.09.2013, he had found a Swaraj Mazda Canter bearing registration No. HR 63 1370 and a person namely Umed @ Monu sitting on the driver seat. A pistol was recovered from him. The sketch of the pistol, its seizure memo and seizure memo of the canter were exhibited as Ex. PW17/A to Ex. PW17/C respectively. Upon rukka being sent by PW17 through HC Amarjeet, FIR No. 322/13 under section 25 Arms Act, PS Sampla, Rohtak, Haryana was recorded by duty officer SI Sunil Kumar (PW16) who proved the same as Ex. PW16/A. State V/s Umed @ Monu & Ors. Page 9 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022
24. The investigation was then marked to HC Sandeep (PW
21) who proved the arrest memo and disclosure statement of accused Umed in the said FIR as Ex. PW21/A and Ex. PW21/B respectively. The MHCM from PS Sampla was examined as PW34 and he proved the entries from Register No. 19 regarding the deposit of the said pistol as Ex. PW34/1 and Ex. PW34/2. He also identified the pistol and cartridge purportedly recovered from accused Umed as Ex. P11 and P12 respectively.
25. The police official from Rohtak, Haryana who proved his report regarding testing of the said pistol as Ex.PW35/A was HC Anil Kumar (PW35).
26. PW37 was the Malkhana Mohrrar who proved the copy of the entry regarding the redeposit of the pistol with the Malkhana, its examination and also a copy of the request for its preservation by the officials from PS BHD Nagar, Delhi as Ex. PW37/A and Ex. PW37/B respectively.
27. The last witness with respect to the FIR No. 322/2013, PS Sampla, Rohtak was the Record Keeper (PW40) from the Judicial Record Room, Rohtak. He again proved the sketch of the pistol and also the seizure memo of the same alongwith cartridges as Ex. PW17/A and Ex. PW17/B respectively. He also reasserted the already exhibited seizure memo of the Canter in question as Ex. PW17/C. State V/s Umed @ Monu & Ors. Page 10 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022
28. The police witnesses related to the present FIR, who were involved in the various investigative processes, were PW7, PW 8 and PW11. PW7 and PW8 proved the arrest memos and disclosure statements of accused Sombir, Vikram and Virender as Ex. PW7/A to Ex. PW7/F respectively. PW7 further proved the arrest memo and disclosure statement of accused Umed as Ex.PW7/G and Ex. PW7/I. The pointing out memo of the godown of accused Vishwanath, purportedly prepared at the behest of accused Umed, was Ex. PW7/J.
29. PW11 was the constable who had accompanied the IO (PW32) during the police custody remand of accused Vikram, Sombir and Virender.
30. The arrest memo and disclosure statement of accused Vishwanath were proved by constable Jaiveer (PW24)as Ex. PW24/A and Ex. PW24/B respectively.
31. Three witnesses were examined by the prosecution with respect to DD entry No. 7B regarding the present incident of robbery. On receipt of DD entry No. 7B, proved as Ex. PW10/A by the DD writer i.e. PW10, ASI Ramesh Kumar (PW25) and constable Ravi Kumar (PW23) reached the Ply factory, Surakhpur Road and found the articles at the premises to be scattered. PW25 made an endorsement (Ex. PW25/A) on the complaint made by Krishan Major (PW1).
State V/s Umed @ Monu & Ors. Page 11 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022
32. The owner of the godown from where accused Vishwanath was purportedly arrested was examined as PW18 and he proved a rent agreement between him and accused Vishwanath as Ex. PW18/A.
33. The Ld. MM who recorded the TIP proceedings with respect to accused Vikram, Virender, Sombir and Umed was examined as PW13 and he proved the said proceedings as Ex. PW3/A to PW3/H.
34. HC Krishan Lal (PW33) proved the entries in the malkhana register relating to deposit of various case properties with PS BHD Nagar as Ex. PW33/1 while PW39 was the Ahlmad from the court of JMIC, Bahadurgarh who proved certain ownership documents regarding the Canter in question from the judicial file in FIR No. 500/2013, PS Sadar, Bahadurgarh Ex. PW13/A to Ex. PW13/E respectively.
35. The last group of witnesses i.e. PW9, PW26, PW27 and PW32 related to the recovery of the purported robbed articles from accused Sombir, Vikram and Virender. Their deposition shall be discussed alongwith the evidence given by the public witnesses i.e. the victims in the incident in the later part of the judgment.
36. The only other remaining witness was PW31 i.e. the IO of the present FIR. He proved the site plan as Ex. PW31/1 and an State V/s Umed @ Monu & Ors. Page 12 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 application for production warrants of accused Virender, Sombir and Vikram as Ex. PW31/2.
37. Reverting now to the deposition of the principal witnesses inter alia PW1, PW2, PW3, PW4 and PW5, the court is inclined to describe PW1 as having rendered a stand alone deposition which was distinct from the account given by PW3 and PW5. The later two were hostile to the prosecution in entirety. PW2 was placed somewhat in between PW1 on the one hand and PW3 & PW5 on the other as far as the incriminatory potential of his testimony was concerned.
38. The court shall elaborate on the deposition of all these witnesses to reach a finding qua the credibility of their individual accounts as well as the effect of their testimony read in relation with each other.
39. Mr. Yogendra Adari, the Ld. Additional Public Prosecutor had relied very heavily on the statement of PW1 to contend that he had identified all four accused qua the respective articles of charge against them. He had submitted that while accused Umed had been identified by PW1 as the driver of the Canter which had been used by the robbers to travel to and from the place of incident, he had further identified accused Sombir and Vikram as being among the robbers.
State V/s Umed @ Monu & Ors. Page 13 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022
40. The respective counsels for the accused persons had contrarily agitated that the deposition of PW1 was vitiated by the element of prompting by the Ld. APP in the manner of cross examination and that the identification of the accused persons had been wrongly recorded as having been done during the examination in chief of this witness. The counsels agitated that the identification was rather made during cross examination by the State since the witness was essentially hostile to the prosecution.
41. The deposition of PW1 thus needs to be dwelt upon in detail.
42. PW1 described the incident largely in consonance with his original statement dated 28.08.2013 (Ex. PW1/A) to the police which he duly proved during his examination in chief. He specified that as he was sleeping in the factory on 27.08.2013 alongwith three other employees i.e. Ram Kumar, Nand Kishore and Chandan, four persons entered the room in which they were sleeping. The assailants were armed with pistols and proceeded to tie the hands, legs and face of the four victims. PW1 also saw a Canter standing outside the factory. The robbers took away various articles including aluminium plates, motor, compressor machine, board, motorcycle, inverter, iron channels, cash amount of Rs. 35,000/ to 40,000/, a Micromax mobile phone, TV, State V/s Umed @ Monu & Ors. Page 14 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 cylinder etc. PW1 further deposed that upon him managing to untie his hands after the robbers left, he had called the owner of the factory from the mobile phone.
43. PW1 further identified his signatures on the supplementary list of articles reported as missing to the IO as Ex. PW1/B.
44. The remainder of the examination in chief of PW1 (conducted on 25.07.2014) relates crucially to the identification of accused Umed and is reproduced as under:
"After 1 & ½ month I was called by the police and I alongwith the IO, Nand Kishore and Ram Kumar went to a godown near Tikari Border, where 3 persons were already in the custody of police. I do not remember their names. In the godown many scrap items were lying. I identified our articles which were mixed in the scrap. Our compressor, drums, one aluminum pot, cables, shaft of motor, phawada, cylinder, iron channels, etc., were recovered from there. Thereafter, police alongwith said accused persons came to our factory, where accused persons have pointed out he place of occurrence and sated the manner of committing robbery. After two months I alongwith IO, my associate Nand Kishore and Ram Kumar went to Bahadurgarh, where one Canter of red colour, number of which I do not remember, was parked. I had identified the said Canter which was used by the robbers for taking away the robbed items. The Driver of Canter was in the custody of police. I had identified the said driver also who was amongst the robbers as I had seen him while entering the State V/s Umed @ Monu & Ors. Page 15 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 factory at the time of the robbery.
At this stage, Ld. APP seeks permission for the Court to ask some leading questions regarding the investigation. (objected to Ld. Defence counsel)".
45. It is apparent that after the witness had stated that he had identified the driver among the robbers to the police on his visit to Bahadurgarh where a red colour canter was parked, the Ld. Prosecutor deemed it fit to ask leading questions regarding the investigation. These were evidently permitted by the court.
46. The court would pause here to record that the deposition of PW1 which followed the permission granted by the court to the prosecutor for asking leading questions is necessarily to be seen in the nature of cross examination.
47. The legislative scheme regarding leading questions, as postulated in the Indian Evidence Act, is required to be understood here.
48. Sections 141, 142, 143 and 154 of the Act are thus relevant and are reproduced below:
141. Leading questions.Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question.
142. When they must not be asked. Leading questions must not, if objected to by the adverse party, be asked in an examinationinchief, or in a re State V/s Umed @ Monu & Ors. Page 16 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 examination, except with the permission of the Court.
143. When they may be asked. Leading questions may be asked in cross examination.
154. Question by party to his own witness. [(1)] The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross examination by the adverse party.
[(2) Nothing in this section shall disentitle the person so permitted under subsection (1), to rely on any part of the evidence of such witness.]
49. To summarise the substance of a combined reading of these provisions in the context of the prosecutor's prayer for asking leading questions from PW1, a party which calls the witness may put any question akin to cross examination by the adverse party to such a witness if permitted by the court. Leading questions are certainly akin to cross examination in as much as they contain the answers to the question itself. Leading questions are permissible in cross examination and can be permitted to be asked by even the party which has called witness if permitted by the court. Seen in the above template, it must be highlighted that the status of a witness as a hostile witness (under section 154 of the Indian Evidence Act) is not dependent on description alone. To elaborate, even if the court does not State V/s Umed @ Monu & Ors. Page 17 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 declare a witness to be hostile and even if the statement of a witness does not bear an indicative heading inter alia cross examination by the State/Ld. Prosecutor, the witness may be treated as having been cross examined if leading questions akin to cross examination have been asked.
50. The court would caveat the above analysis with the observation that leading questions regarding matters which are introductory or undisputed or which have been already sufficiently proved (as provided under section 142 of the Act) are in a different class of questions. These lie in the mandatory zone of permission as evident from the use of the word 'shall' in section 142 when permission is to be granted for the asking of such questions.
51. The deposition of PW1 on 25.07.2014, subsequent to the intervention by the Ld. APP when permission was asked from the court for asking leading questions, was certainly not within the above caveated observation from the court. The witness had thus far not identified either accused person as being among the robbers. He had also not identified the driver of the Canter to the court. PW1 had only deposed till then that he had identified the driver of the canter to the IO when he had gone to Bahadurgarh with Nand Kishore and Ram Kumar where one canter of red colour was parked. He had also deposed till then only to the State V/s Umed @ Monu & Ors. Page 18 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 limited extent of stating that he had identified the canter used by the robbers. He had then stated that the driver of the canter was in the custody of the police and that he had identified the said driver as being among the robbers to the police.
52. The court must take a pause here as indeed the ld. Prosecutor did. At this point in the examination in chief, the witness had stopped short of either identifying any of the accused persons facing trial as being among the robbers or identifying accused Umed as the driver of the canter. Since the examination in chief is a voluntary and volitional account, it must remain unaided by suggestions or prompting. If then the party calling the witness viz the State intends to elicit any more incriminating material from the witness, the only choice is to cross examine and thus ask leading questions. To treat the asking of the leading questions by the Ld. Prosecutor from PW1 after permission was granted by the court as only a clarificatory exercise akin to what is permitted in the second paragraph of section 142 of the Indian Evidence Act would be to completely misunderstand the course of the examination in chief of PW1 on 25.07.2014.
53. The court thus records it as an assertive finding that PW1 was cross examined, as a hostile witness, by the prosecutor on 25.07.2014 after permission was granted by the court to the State for the asking of leading questions.
State V/s Umed @ Monu & Ors. Page 19 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022
54. The identification of accused Umed and the other two accused facing trial at present namely Sombir and Vikram by PW1 is therefore to be seen as identification during cross examination by the State.
55. Referring now to the said cross examination by the State, PW1 stated as under on 25.07.2014:
"The accused Umed present in the court (correctly identified) was the driver of the said canter".
56. The court is not inclined to place faith in this sudden and guided identification of accused Umed by PW1 as this identification did not emerge voluntarily during his examination in chief. The identification was made PW1 in a sequence of admitting various suggestions by the prosecutor regarding the seizure memo of the bedsheets used for tying up the victims, pointing out memo and recovery memo of the seized articles (Ex. PW1/C and Ex. PW1/D respectively).
57. The court thus disbelieves the identification of accused Umed by PW1.
58. After the said cross examination of PW1 by the State was deferred on 25.07.2014, the witness was recalled for further deposition on 12.08.2014. Though this deposition began by recording that PW1 had been recalled for examination in chief, the court has already found that PW1 was under cross State V/s Umed @ Monu & Ors. Page 20 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 examination by the State. The reference to further examination in chief in the statement of PW1 dated 12.08.2014 is thus to be read as further cross examination by the State.
59. The further statement of PW1 on 12.08.2014 was as under:
"On SA All the accused persons who had robbed us are present in the Court. The witness has pointed out towards accused Umed and submits that he was the person who was driving the Tempo and was frequently coming and going outside the factory (correctly identified).
The witness has pointed out towards accused Virender @ Binder, Sombir and Vikram and submits that these were the accused persons who were committing the robbery besides the other robbers who are not present in the Court (correctly identified).
60. The court shall maintain its lack of faith in the credibility of PW1 as far as his identification of accused Sombir and Vikram is concerned much in the manner the court has disbelieved his identification of accused Umed. The witness did not identify these two accused (or accused Virender who is since a proclaimed offender) at the first instance when he was examined in chief on 25.07.2014. The witness rather stated the identity of the accused as the robbers only upon being cross examined by the prosecutor. Moreover, accused Sombir and Vikram were identified after the interval of another date of State V/s Umed @ Monu & Ors. Page 21 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 hearing as the cross examination was deferred from 25.07.2014 to 12.08.2014. The intervening period available to a hostile witness is equally liable to be seen as time available for grafting improvements and preparing rehearsed answers to the questions from the State.
61. The identification of accused Sombir, Vikram and Umed @ Monu (as well as accused Virender) by PW1 is disbelieved by the court in toto.
62. The next witness for purpose of identification of the accused was PW2.
63. PW2 (Ram Kumar), one of the victims of the incident of robbery, corroborated the chain of events on 27.08.2013 as deposed by PW1 as far as the time and manner of the incident was concerned. He also deposed that four persons had entered the factory at about 1:30 am and threatened the employees with pistols. Further, that after tying up the hands, legs and face of the victims with mosquito nets and bedsheets, they started looting in the factory. PW2 also noted a Canter standing outside the factory. The witness described the articles of robbery in much the same manner as PW1. He admitted that the police had recorded his statement on 28.08.2013.
64. PW2 next deposed that after a few days, he had gone to the shop of a kabadi where three robbers were already present in State V/s Umed @ Monu & Ors. Page 22 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 the custody of the police. He stated that he could identify the persons who had committed the robbery but did not know the name of the kabadi in question.
65. PW2 lastly deposed that after another few days, he alongwith the police and the owner of the factory had gone to Bahadurgarh where he identified a Canter used for taking away the robbed articles. He also stated that the driver of the Canter was present near the Canter. The witness then identified accused Umed as the driver of the Canter.
66. After further examination in chief of the witness was deferred and the witness was recalled for further examination in chief on 27.10.2014, the witness deposed as follows:
"On SA The police officials visited the factory along with some persons and I was not able to identify the said persons as the robbers.
At this stage, the witness is asked to identify the robbers (accused persons) present in the Court today. The witness submits that none of them were amongst the persons who committed the robbery in the factory.
I did not go to any godown at Tikri Kallan Village and nothing was recovered in my presence including any vehicle.
At this stage, Ld. Addl. PP seeks permission of the Court State V/s Umed @ Monu & Ors. Page 23 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 to cross examine the witness as the witness has not supported the case of the prosecution as per his statements U/s 161 Cr. PC.
Heard. Allowed.
67. It is apparent that as in the manner of PW1, PW2 also had to be cross examined by the prosecutor for failing to support his purported previous statement under section 161 Cr. PC.
68. In the cross examination from the State which then unfolded, PW2 denied the suggestion that he had identified accused Sombir, Vikram and Virender (since PO) as the robbers brought to the factory by the police on 11.10.2013 or that he had identified accused Vikram as being the offender who was loading the looted articles in the Canter.
69. PW2 next denied the specific suggestion that on 13.10.2013, he alongwith his employer namely Vinod Bansal, police officials and the above three accused had reached the godown of coaccused Vishwanath (kabadi) at Tikri Kalan village where accused Vishwanath had got recovered some of the robbed articles.
70. PW2 lastly denied the suggestion that on 27.12.2013, he had correctly identified the Canter bearing registration No. HR 63 1370 purportedly used in the offence or that he had been won over by the accused persons to depose in their favour.
State V/s Umed @ Monu & Ors. Page 24 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022
71. The court is inclined to view the deposition of PW2 with the same doubtful lens which found the statement of PW1 to be unworthy of belief.
72. An infirmity emerged in the deposition of PW2 when at the inception of his examination in chief, he alluded only to a Canter standing outside the factory without mentioning who the driver was. Similarly, as the examination in chief progressed, he claimed that he could identify the persons who had committed the robbery. Yet, he did not point to any of the accused persons, including accused Sombir and Vikram as the robbers.
73. He rather asserted that he had subsequently accompanied the police to a factory at Bahadurgarh where he identified a parked Canter which had been used by the robbers for taking away the robbed articles. He also stated that the driver of the Canter was present near the Canter. He then identified the said driver as accused Umed.
74. After identifying certain case property including the bedsheets and mosquito nets (Ex. P1) used for tying up the victims and certain robbed articles (Ex. P2/4), the further examination in chief of the witness was deferred as accused Sombir, Vikram ad Virender (since PO) had not been produced from Bhondsi Jail.
State V/s Umed @ Monu & Ors. Page 25 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022
75. Hence, the examination in chief of PW2 on 25.07.2014 yielded only an identification of accused Umed. Yet, there is a critical nuisance to this identification. PW2 did not identify Umed as the driver of the Canter on the date of incident. He only stated in the later part of his examination in chief that when the Canter was recovered as being parked at Bahadurgarh, the driver of the Canter was standing near by and that the said driver was accused Umed. Hence, the deposition of PW2 only proves the presence of Umed at the time (many days later) of recovery of the Canter. The witness omitted to say that Umed was the same driver whom he had seen at the time of the robbery.
76. The court is inclined here to reel back to its observation at the beginning of the discussion upon the deposition of PW2 inter alia that he had seen a Canter standing outside the factory but had not identified any particular person as the driver of the same.
77. In effect, the seeming identification of accused Umed by PW2 is a fallacious conclusion to draw from his staccato examination in chief dated 25.07.2014.
78. The court does not find it imprudent to observe here that the unwritten subtext of any examination in chief (and indeed cross examination) lies in the sublime tactics adopted by either the examining or cross examining counsels. The court must State V/s Umed @ Monu & Ors. Page 26 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 therefore peep into the thinly disguised tactics visible from the examination in chief of PW2 too.
79. When deposing regarding the Canter, seen as standing outside the factory at the time of the robbery, the ld prosecutor quietly absorbed the want of identification of accused Umed by PW2. The witness was not declared hostile at this point. No permission was sought from the court to ask a leading question on the point of identity either. Even later, when PW2 stated that accused Umed was standing near the Canter at the time of its recovery at Bahadurgarh, the prosecutor did not seek liberty to ask a question regarding his identity as one of the robbers. Being content with correct identification of accused Umed as the driver at the time of recovery, the ld prosecutor did not treat this witness as hostile. Infact, the examination in chief was deferred to the next date.
80. It is only on the next date i.e. 27.10.2014 when PW2 failed to identify the accused persons as the robbers and even denied going to the godown at Tikri Kalan village that the witness was cross examined by the State as a hostile witness.
81. Interestingly, even on the aspect of recovery in the presence of the kabadi, as stated by PW2 on 25.07.2014, the State did not cross examine PW2 when he stated that he did not know the name of the kabadi. It was only on 27.10.2014 that the State V/s Umed @ Monu & Ors. Page 27 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 witness was declared hostile and questions asked regarding the identify of accused Vishwanath as the kabadi as well as the use of the canter in the offence.
82. The Ld. APP for the State, however, still did not put any question regarding identity of accused Umed to the witness.
83. In sum, the following conclusions are to be drawn from the deposition of PW2:
(i) The witness was, in effect, partially hostile to the prosecution even on the date of the first examination in chief i.e. 25.07.2014 notwithstanding him continuing to be examined as a supportive witness.
(ii) PW2 did not identify accused Sombir and Vikram as the robbers either in his examination in chief or cross examination by the State.
(iii) The identification of accused Umed by PW2 is not equivalent to identification as one of the robbers.
(iv) PW2 has also failed to identify accused Vishwanath as the kabadi from whom the robbed articles were seized.
84. Hence, similar to the cross findings qua PW1, PW2 is also found to be a witness with little credibility and his deposition does not constitute incrimination of either accused.
85. The remaining two eye witnesses i.e. the other two employees who had been bound and gagged by the robbers, were State V/s Umed @ Monu & Ors. Page 28 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 PW3 namely Nand Kishore and PW5 namely Chandan. These witnesses also described the manner of the incident but failed to identify any of the accused persons as the robbers. Both witnesses were cross examined by the State.
86. In his examination in chief, PW3 had claimed that he could identify the robbers if they were shown to him. However, upon being recalled for further examination in chief on the next date, he was unable to identify any of the accused persons as the robbers. Upon being cross examined by the Ld. APP, PW3 still denied that the accused persons were among the robbers.
87. Similarly, PW5 failed to identify any of the four accused persons. Infact, during his examination in chief, he had clearly stated that he would not be able to identify any of the robbers on account of lack of memory of the incident. When the prosecutor cross examined him, PW5 denied that he was refusing to identify the accused as he had won over by them.
88. To summarise the precise impact of the findings of the court regarding the deposition of PW1, PW2, PW3 and PW5, neither witness in isolation nor any of the witnesses in conjunction can be treated as having rendered a believable identification of either accused facing trial as the alleged robbers/dacoits. Accused Umed, Sombir and Vikram have not been cogently identified as being among the robbers and accused State V/s Umed @ Monu & Ors. Page 29 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 Vishwanath has not been proved to be the kabadi who received the purportedly robbed articles or from whom the same were recovered.
89. The twin articles of charge against accused Umed, Sombir and Vikram (alongwith Virender who is since PO), in the context of the robbery/dacoity, were sections 395 and 397 IPC.
90. Since the presence of neither of the above three accused as the robbers/dacoits at the place of incident has been proved and there is no evidence on record to establish the use of deadly weapons by them, both articles of charge remain unsubstantiated.
91. Accused Umed, Sombir and Vikram are thus entitled to acquittal under sections 395/397 IPC.
92. The State had agitated the purported recovery of a portion of the stolen property from accused Vishwanath, at the behest of accused Sombir and Vikram, as supplemental evidence of the commission of dacoity itself apart from constituting evidence qua the separate charge against accused Vishwanath under section 412 IPC.
93. The court shall therefore next examine the evidence regarding recovery from Vishwanath in the context of both articles of charge inter alia sections 395/397 IPC and section 412 IPC.
State V/s Umed @ Monu & Ors. Page 30 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022
94. The relevant document recording the purported recovery is Ex.PW1/E. This document dated 13.10.2013 was cited to establish that the following robbed articles had been recovered from the possession of accused Vishwanath:
(i) One iron girder (ii) Two iron panels (iii) 15 iron angles (iv) One iron pipe (v) One cooling plate (vi) one compressor gear box (vii) one half body motor (viii) one cable (ix) one compressor (used for purpose of paint) (x) one pipe (used for purpose of paint) (xi) One Indane gas cylinder (xii) Four old iron drums
95. It was the version of the prosecution that the scrap dealer was located on plot and khasra No. 25/21 out of 29 opposite Jai Mata Dharm Kanta Village, Tikari Kalan, Delhi, Shyam Gas Agency. Further, that accused Vikram, Sombir and Virender (since PO) had led the police team to this godown, operated by accused Vishwanath where the stolen property had been sold to the later for Rs. 59,000/.
State V/s Umed @ Monu & Ors. Page 31 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022
96. The seizure memo Ex. PW1/E had as many as six witnesses apart from the IO. There were three police witnesses and three public witnesses to this document.
97. The public witnesses included PW1 (Krishan Major), PW2 (Ram Kumar) and PW4 (Vinod Bansal). As noted in the preceding part of this judgment, the court has found PW1, PW2 to be completely unreliable witnesses.
98. Their deposition with respect to the recovery, however, still needs to be noted in detail.
99. PW1 made just a passing reference to this document by stating only during cross examination by the Ld. APP that it was bearing his signatures at point 'A'. However, during his examination in chief, PW1 could not recall the names of the persons in the custody of the police at the godown near Tikri border where some of these robbed articles were lying. Though PW1 asserted that some of these articles had been recovered from the godown, he did not proceed to cite the seizure memo. Thus, the reference to his signatures, only as an admission of the suggestion from the prosecutor, constitutes a very fragile incrimination of the accused persons in the purported recovery.
100. As to PW2 Ram Kumar, he did identify his signatures on Ex. PW1/E during his examination in chief and submitted that some of the robbed articles had been recovered from the shop of State V/s Umed @ Monu & Ors. Page 32 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 a kabadi near Tikri. Yet, he neither identified the robbers nor the kabadi in his examination in chief and cross examination by the State. He rather denied the suggestions from the prosecutor that accused Sombir and Vikram had pointed towards the godown by stating on 13.10.2013 that they had sold the articles to accused Vishwanath. PW2 denied the seizure memo Ex. PW1/E as having been prepared by the police in his presence when he was cross examined by the State. He only admitted his signatures on the same.
101. The court has previously found PW2 to be unreliable on the point of identity. His deposition qua the recovery is also riddled with contradictions and essentially constitutes the dominant character of resiling from his purported initial version.
102. Neither PW1 nor PW2 are found to have incriminated accused Vishwanath under section 412 IPC. Their deposition regarding the recovery is not corroborative of the charge under sections 395/397 IPC against the other accused persons either.
103. The last public witness qua the recovery was Vinod Bansal (PW4) who was the owner of the factory where the incident had occurred. This witness identified a list of articles (Ex. PW1/B) which was reported by him as stolen to the police after the incident and had been handed over to the police by PW1. He also deposed that some of the stolen articles had been recovered State V/s Umed @ Monu & Ors. Page 33 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 from an open godown in presence of a person whose name he could not identify.
104. This witness too failed to support his previous purported statement and had to be cross examined by the State. During this cross examination, he denied that accused Vikram and Sombir were present at the godown where the recovery was made. Infact, he volunteered to state that he had gone to the spot in his own car and it were the police officials who pointed out the accused persons as the robbers. PW4 further stated that the accused had not disclosed in his presence that they had sold the robbed articles to accused Vishwanath. He further asserted that accused Vishwanath had not been identified in his presence and that he could not say whether the person present at the godown was Vishwanath or not.
105. Thus seen, even PW4 has failed to corroborate the recovery of the articles from accused Vishwanath. The picture which emerges from the statements of the public witnesses is that certain accused persons including Vikram and Sombir, already in the custody of the police, may have been pointed out as the robbers to this witness. However, much like PW1, PW2, PW3 and PW5, witness Vinod Bansal (PW4) has also failed to identify any of the accused persons especially accused Vishwanath who was the subject of the charge under sections State V/s Umed @ Monu & Ors. Page 34 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 412 IPC.
106. In this scenario, the mechanical identification of the case properties by PW4 as well as PW1, PW2 and PW3, on being shown the photographs of the same before the court (Ex. P2, P3 and P4), is completely incapable of being treated as incriminatory of the accused. Besides, the articles in question are of a commonly available nature and incapable of accurate identification of ownership. The stolen articles were in the nature of iron girders/drums/cylinders and it is impossible to reach a finding regarding them being the same articles as were robbed. When the identity of the robbers and the recovery of the articles itself have remained not proved, a mere claim of identification of the case property by these witnesses does not suffice as evidence of the offence punishable under section 412 IPC.
107. Essentially, none of the public witnesses to Ex. PW1/E are helpful to the prosecution in proving the charge under section 412 IPC or act as supporting evidence of the charge under sections 395/397 IPC.
108. In this context, the court is disinclined to trust the deposition of only the police witnesses to the seizure memo inter alia Const. Devender (PW9), Const. Ashok Kumar (PW26), Const. Joginder (PW27) and IO SI Ranbir Singh (PW32) who State V/s Umed @ Monu & Ors. Page 35 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 proved their respective signatures on this document.
109. While there is no rule of absolute operation requiring the court to seeks corroboration of police witnesses and conviction can be maintained on the deposition of police witnesses, corroboration through public witnesses is an exercise in prudence.
110. The present trial did not pertain to a case of non availability of public witnesses for substantiating the version of the police witnesses. The prosecution had rather relied strongly on public witnesses who were infact the victims of the crime itself. Yet, none of them inter alia PW1, PW2, PW3 and PW 5 supported the prosecution in material particulars. All of them were hostile on the aspect of identity and three of them i.e. PW 1, PW2 and PW4 were unhelpful on the question of recovery of the articles from accused Vishwanath at the behest of accused Vikram and Sombir. It is thus a case of public witnesses being at logger heads with the police witnesses.
111. The court is consequently confronted with not one version alone (as in cases based solely on police witnesses) but with too competing accounts. The second account emerges from the testimony of public witnesses and disfavours the theory of recovery from accused Vishwanath at the behest of accused Vikram and Sombir. The benefit of competing interpretations State V/s Umed @ Monu & Ors. Page 36 of37 FIR No. 208/2013 P.S. BHD Nagar U/s 395/397/412/34 IPC DOD:18.04.2022 should be afforded to the accused in a criminal trial.
112. The accused persons are entitled to the benefit of doubts having arising qua the articles of charge.
113. Accused Umed @ Monu, Sombir and Vikram are acquitted of the charge under sections 395 and 397 IPC.
114. Accused Vishwanath is acquitted of the charge under section 412 IPC.
115. All bonds except the bonds under section 437A Cr. PC are discharged.
116. File be consigned to Record Room.
Digitally signed by VISHAL VISHAL GOGNE
Date:
GOGNE 2022.04.18
Announced in open Court today
17:01:42
+0530
On 18.04.2022 (Vishal Gogne)
Additional Sessions Judge04
Dwarka Courts, SouthWest
New Delhi
State V/s Umed @ Monu & Ors. Page 37 of37