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Delhi District Court

State vs . (1) Rajesh on 23 February, 2013

      IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
       JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI


Session Case No. 23/2012
Unique Case ID No.02404R0068072012
State            Vs.      (1) Rajesh 
                               S/o Raj Singh
                               R/o Village Holambi Khurd,
                               PS Metro Vihar, Narela,
                               Delhi
                               (Convicted)

                                               (2)     Raj Kumar
                                                       S/o Shyam Lal
                                                       R/o Village Saro,
                                                       Distt. Etah , U.P.
                                                       (Convicted)

                                               (3)     Vinod Kumar @ Laddu @ Kalu
                                                       S/o Ghanshyam
                                                       R/o House No. 34/1, C­Block,
                                                       Shahbad Dairy, Delhi
                                                       (Convicted)

                                               (4)   Mahender Singh @ Munna
                                                     S/o Ram Mehar
                                                     R/o C­278, Old Shahbad Dairy,
                                                     Delhi.
                                                     (Convicted)
FIR No.:                                       05/2012
Police Station:                                Shalimar Bagh
Under Sections:                                393/398/452/120­B IPC 
                                               & 27/54/59 of Arms Act


St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh                          Page No. 1
 Date of committal to Sessions Court: 27.3.2012

Date on which orders were reserved: 23.1.2013

Date on which judgment announced: 12.2.2013


JUDGMENT:

(1) As per allegations on or before 5.1.2012 all the accused namely Rajesh, Raj Kumar, Vinod and Mahender hatched a criminal conspiracy to commit a robbery pursuant to which on 5.1.2012 at 10:45 AM all the accused committed house trespass in House No. BK­1/187, Shalimar Bagh, Main Road, Kela Godown, Delhi (belonging to Baldev Ram) after being armed with deadly weapons i.e. knife and country made pistol and having made preparation for causing hurt to family members of Baldev Ram or assaulting them or wrongful restrain them or putting them in fear of hurt or of assault. It is also alleged that all the four accused in pursuance of their criminal conspiracy attempted to commit robbery at the said house of Baldev Ram.

BRIEF FACTS / CASE OF THE PROSECUTION:

(2) The case of the prosecution is that on 5.1.2012 pursuant to DD No.16A SI Rajan Pal reached House No. BK­1/187, East Shalimar Bagh, Main Road, Kela Godown, where he found HC Rajesh and Ct.

Dalip who had apprehended one person namely Rajesh as one of the assailants who had been apprehended by the public persons. SI Rajan Pal also met Baldev Ram, his wife Lajwanti and his grand­daughter St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 2 Maina. Baldev Ram gave his detailed statement to the police wherein he informed that he is having a shop in Adarsh Nagar and on 5.1.2012 he along with his son Suresh went to their shop at about 9:00 AM. According to Baldev Ram at about 10:45 AM he returned to his house to take his meals but found the door of the house closed from inside and heard some noises from inside. He further informed the police that he knocked the door on which the door was opened from inside and one person came out followed by another person who ran towards outside. Baldev Ram also informed that he tried to catch those persons but in the meanwhile two other persons came from inside his house one by one and started running on which he tried to catch hold of the fourth person who was having a pistol in his hand but the said person pushed him and ran away. According to Baldev Ram the monkey caps of two of these persons fell down in the scuffle and in the meanwhile his wife Lajwanti and grand­daughter Maina raised an alarm. He further informed the police on hearing the alarm HC Rajesh and Ct. Dalip who were passing through the area with the help of public persons caught hold of one of the boys whose name they later on came to know was Rajesh. On seeing the said person namely Rajesh, Smt. Lajwanti informed that he was the person who was having a torch in his hand and had entered their house pretending himself to be a Meter Reader and thereafter his three associates also entered the house and tried to commit robbery on the points of knives and pistol.

St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 3 (3) On the basis of the said statement of Baldev Ram the present FIR was got registered and the accused Rajesh who was apprehended at the spot itself was arrested. On 8.2.2012 on the pointing out of accused Rajesh his associate Raj Kumar was also apprehended from near the liquor vend, Haiderpur and was also identified by Baldev Ram in the Police Station. The accused Raj Kumar was arrested who got recovered Santro Car bearing No. DL­2CW­4374 and disclosed that they had kept a watch on the house of Baldev Ram and used the said car in the commission of crime. On 11.1.2012 the accused Raj Kumar got recovered a country made pistol from the bushes backside of the garden of Sai Baba Mandir, Mohan Nagar, Ghaziabad. On the same day at about 4:30 PM the complainant Baldev Ram came at the Police Station and informed that two assailants were sitting near the railway line, Kela Godown on which the accused Mahender @ Munna and Vinod @ Ladoo @ Kalu were apprehended and arrested on the pointing out of the complainant. After completion of investigations charge sheet was filed against all the accused persons.

CHARGE:

(4) Charges under Sections 120­B/452/393 Indian Penal Code were settled against all the accused namely Rajesh, Raj Kumar, Vinod and Mahender to which they pleaded not guilty and claimed trial.

Further, charges under Sections 397/398 Indian Penal Code were settled St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 4 against the accused Mahender Singh @ Munna and Vinod @ Kalu to which they pleaded not guilty and claimed trial. Also, charges under Sections 397/398 IPC and 25 of Arms Act were settled against the accused Raj Kumar to which he pleaded not guilty and claimed trial. EVIDENCE:

(5) In order to prove its case the prosecution has examined as many as Twelve Witnesses as under:

Public witnesses/ victims:

(6) PW3 Sh. Baldev Ram is the complainant who has deposed that he is a retired Delhi Govt. Servant from LNJP hospital. According to the witness, he does not remember exactly the date, month and year of the incident but it was seven­eight months prior to the date of his deposition that at about 9:00 AM he had gone to the shop with his son namely Suresh and at about 10.30-11:00 AM he returned to his house from his shop when he heard some noises from inside on which he knocked the doors of his house. Witness has further deposed that he heard a voice from inside that Chor Aa Gaye Hain. In the meanwhile door was opened from inside by his wife and one person came out from the house whom he tried to catch. According to the witness, the said person pushed him and meanwhile, another person came from inside the house who also pushed him on which he (witness) started shouting and raised an alarm of Pakro­Pakro. The witness has testified that St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 5 meanwhile, third person and then fourth person came out from inside the house and public persons gathered there. One of the assailant was apprehended by the public persons from behind a van. According to the witness, his wife Lajwanti and his grand daughter Maina who were initially inside the house then informed him that the person who had been apprehended by the public persons was the same person who had entered their house and they identified him. Witness has testified that his grand­daughter Maina also told him that the person who was apprehended by the public had entered their house along with three other persons who were armed with knives and pistols. According to him, somebody made a call to the police and police came there and took away the person apprehended by public persons. Witness has also deposed that he noticed that two police personnels who were on patrolling also came running to the spot when the accused was apprehended by public. He has proved that when the police came to the spot he informed them of whatever had happened and in the evening he went to the police station where his detailed statement was recorded which is Ex.PW3/A. According to him, there he again identified the same boy who had been apprehended at the spot and had also been identified by his grand­daughter as the person who had entered their house. The witness has pointed out towards the accused Rajesh as the person who had entered their house and had been apprehended by the public persons. He has proved that the accused Rajesh was arrested in St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 6 his presence vide memo Ex.PW3/B and states that Rajesh is the same person who was having a torch in his hand when he entered their house claiming himself to be a Meter Reader / Checker who had come for checking. According to the witness at the time when they caught hold of accused Rajesh one monkey cap had fallen down on the ground in front of their house which was carried by the accused Rajesh which he pointed out to the police and handed over to them on which police seized both the torch and the monkey cap vide memo Ex.PW3/C. According to the witness two more monkey caps were recovered which had fallen from the hands of the other accused a little ahead of their house which were also seized by the police vide memo Ex.PW3/D. (7) The witness Baldev Ram has further deposed that after three­ four days he had gone to the police station where he found another accused in the police station and identified the other person who had entered their house whose name he come to know as Raj Kumar. He has proved that the accused Raj Kumar was arrested by the police vide memo Ex.PW3/E and his personal search was carried out vide Ex.PW3/F. According to the witness on seeing him the accused Raj Kumar whom the witness has correctly identified in the Court disclosed the police that he was working as an electrician in the same area and when he (witness) asked him (accused Raj Kumar) in the police station how he could reach his house, he (accused) disclosed to the police that they used to pass his house in the evening / night and had St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 7 kept a watch.

(8) According to Baldev Ram after about a week two more boys had been apprehended by the police and he went to the police station to identify them where he identified two boys who were arrested in his presence. The witness has pointed out towards accused Vinod as the person whom he earlier identified in the police station and was arrested vide memo Ex.PW3/G and his personal search was conducted vide memo Ex.PW3/H. He has also correctly identified the accused Mohinder @ Munna by pointing out as the fourth boy whom he had identified in the police station. The witness further proved that the accused Mahender @ Munna was arrested vide memo Ex.PW3/I and his personal search was conducted vide memo Ex.PW3/J. (9) He has also correctly identified the case property i.e. one torch which the accused Rajesh was carrying at the time of checking the meter as a Meter Reader which torch is Ex.P1; monkey cap as the one which was in possession of accused Rajesh and had been dropped in front of his house at the time when Rajesh was apprehended, which monkey cap is Ex.P­2; two caps one of grey black colour and the other which is a monkey cap of brown colour which are collectively Ex P3. (10) Leading questions were put to the witness by the Ld. Addl.

PP for the State wherein the witness has admitted that the incident pertains to 05.01.2012 i.e. the same day on which his statement was St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 8 recorded. Witness has also admitted that he had told the police everything which was disclosed to him by his wife and his granddaughter; that he had identified the accused Raj Kumar on the same day on which he had signed the arrest memo i.e. 08.01.2012 and that he had told the police that Raj Kumar was the same person who had pushed him and had shown the katta to him. He has voluntarily explained that he had fallen down because of the push the accused Raj Kumar gave to him. The witness has further admitted that he had identified the accused Vinod and Mohinder on the day on which he had signed their arrest memos and other documents pertaining to them i.e. 11.01.2012; that he had seen the accused Vinod and Mohinder sitting near the railway line kela godown near the phatak while he was coming back on his scooter and thereafter, he made a call to the police and they had been apprehended on his pointing out.

(11) In his cross examination by the Ld. Defence Counsels the witness has deposed that police recorded his statement on four to five occasions. According to him, his shop is about three to four km. from his residence and it is his daily routine that he comes home to have his lunch. He has testified that on the date of the incident he had left his house at about 7:30 AM and has voluntarily explained that he normally opens his shop at 9:30 AM. The witness has further deposed that he had returned to his house on the date of the incident at about 10:30 AM and has voluntarily explained that it was only by­chance that he had St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 9 come home for some private work or else normally he only comes during the lunch time. Witness has testified that the shop is being run by his son and he is only assisting him. The witness has further deposed that he had told the police that when he came back to his house and knocked he heard the voice of his wife Chor Aa Gaye Hain. However, when confronted with statement Ex.PW3/A the said fact has not been specifically mentioned. It has been observed by this Court that the words Darane Dhamkane Ki Awaje Aa Rahe Thee were mentioned. According to him he had told to the police that first person who had come out pushed him but when confronted with statement Ex.PW3/A the said fact was not found so specifically mentioned. This Court has observed that it is only mentioned that one person came out of the house with the knife in his hand and started to run outside and other person followed him and thereafter the third person also came out followed by a fourth boy with a pistol in his hand who had pushed him as a result of which he fell down. The witness has also deposed that when he knocked the door, it is his family members who opened the door from inside and when the persons were running he tried to stop them and it was then that he pulled the monkey cap which fell outside his house. According to him, when he noticed the beat constables who had come running on hearing the alarm and cries they were on foot. He has also deposed that the police force came to the spot after about 10­15 minutes in their official vehicle but he is unable to tell the exact time St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 10 when he reached the police station on the date of incident i.e. 08.01.2012. Witness has denied the suggestion that the police had taken his signatures on blank papers and has voluntarily explained that all the papers were written and he had signed after reading the same. He has testified that after he had given the information to the police regarding the accused Vinod and Mohinder sitting at the railway line, he stayed there till the time the police came and took them and has voluntarily explained that he was called by the police to the police station again on the same day to confirm if the accused who had been apprehended from the railway lines were the same persons who had committed the incident at his house and it was for this reason that he went to the police station. He has denied the suggestion that he had created this story of the accused sitting at the railway lines and his informing the police since the accused Vinod and Mohinder had been illegally detained in the police station or that he was asked by the police to identify them as assailants only to legalize their detention despite the fact that they had nothing to do with the incident. According to the witness, he had a made a telephone call to the police station to inform them about the accused sitting on the railway lines which number of the police station was with him because it was given to him by the local police. He has further deposed that the school van behind which the accused Rajesh was hiding was parked on the side of his house and it was the public persons who caught hold of accused Rajesh who was hiding behind the St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 11 van. According to the witness nothing was stolen from his house. The witness has testified that one Chura was recovered from behind the van which the accused Rajesh had thrown on seeing the public persons and pretended to them that he was a meter reader by showing his torch. Witness has denied the suggestion that there was no chura in possession of Rajesh which he had thrown behind the van or that accused Rajesh had been apprehended on account of mistaken identity and had never entered his house. Witness has further deposed that when he was pushed by the accused he was at the main gate of his house and he fell over there but did not receive any injuries and has voluntarily explained that people had helped him to get up. He is unable to tell who was the first accused who had come out of his house while trying to flee and has voluntarily explained that he had been pushed and he had fallen down and perplexed on account of the incident.

(12) PW4 Smt. Lajwanti @ Laj is the wife of complainant Baldev Ram (PW3). She has deposed that she is a housewife and in her house, her husband, son Suresh, daughter in law namely Neeraj and grand­daughter Mehak and Mahima @ Maina are residing. According to her, on 05.01.12 at about 10:00­10:30 AM, she alongwith her grand­ daughter Mahima @ Maina was present at her house and her daughter in law Neeraj had gone to her parental house at that time and her husband Baldev Ram and her son Suresh had gone to the shop at about 9:00 AM on that day. Witness has further deposed that on 05.01.2012 at St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 12 about 10:00­10:30 AM someone pressed their call bell at the door and her grand daughter Maina saw the outsider from inside the house and informed her that some persons came there for taking the electricity meter readings. According to the witness, thereafter she opened the door and found four persons who told her that they had come for taking the electricity meter reading and one person was checking the electricity meter by his torch. Witness has also deposed that she was standing there and suddenly he caught hold of her by her neck and brought her in the room where Maina was standing. According to the witness, the said person also pressed her mouth by his hand and the other persons also took out their knives and pistols. She has testified that Maina tried to save her (witness) but the above said assailants also caught hold her and pressed her mouth and put knives on her neck and also on the neck of Maina and bolted the door from inside. Witness has further deposed that the assailants were saying something but due to nervousness, she could not hear the same and in the meanwhile, there was a knocking on the door from outside and the assailants opened the door from the inside. According to the witness, the above said four assailants went towards the door and the two assailants pushed her husband who was knocking on the doors and one of the assailants showed a pistol to her husband. She has further deposed that one of the assailant who was having torch was apprehended by the public persons and three monkey caps were also found outside of their house. According to her, Police St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 13 also reached at the spot and the person who was apprehended by public was arrested by the police. She has correctly identified the accused Rajesh by pointing out towards him as the person who was having a torch in his hands and entered the house for taking the reading of the electricity meter. She has also identified the case property i.e. one torch and one monkey cap as the torch used by the accused Rajesh and recovered from him which are Ex.P1 and Ex.P2; one cap and one monkey cap recovered from outside of the house and used by the assailants which are Ex.P­3 collectively.

(13) Leading questions were put by Ld. APP for the State, wherein the witness has admitted that the accused Rajesh who came at their house for taking meter reading and at his instance, she opened the door and he pressed her mouth and his another associate put a knife on her neck and they demanded keys of almirah from her and told her that they would assault her by knives if she raised alarm. Witness has also admitted that the third assailant caught hold her grand daughter Maina and pressed her mouth and also put a knife on her neck and that fourth assailant who was having pistol in his hand bolted the door from the inside and he threatened them.

(14) In her cross examination by Ld. Defence counsel, witness has deposed that she cannot identify the assailants other than the accused Rajesh. According to her, police did not inquire any fact from her nor the police recorded her statement and has voluntarily explained St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 14 that they had only questioned her husband. She has testified that she was present in her house along with her grand­daughter at the time of the incident and one person had knocked the door of her house. She does not remember about the clothes of the accused which he was wearing and has voluntarily explained that they were wearing pant shirt, monkey caps but their faces were visible through the cap. She has further deposed that when she asked the accused Rajesh who he was, he told her that he was a meter reader and was having a torch in his hand. Witness has admitted that the torch which he was carrying is easily available in the markets being a article of domestic use. According to her, the person who was having a torch in his hands showed her the knife after he entered the house. She has denied the suggestion that the Rajesh was not carrying any knife and has been apprehended on the basis of mistaken identity because the incident had taken place inside the house or that Rajesh has nothing to do with the other accused or the incident. According to the witness, accused Rajesh was caught by the public persons and has voluntarily explained that she identified him as the person who had entered their house after he was caught by the public. She has further denied the suggestion that she is a tutored witness and whatever she have deposed is on the asking of the Investigating Officer or that she had identified the accused in the court on the pointing out of the Investigating Officer or that the accused is innocent.

St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 15 (15) PW5 Ms. Mahima @ Maina a student of Class XI is the grand­daughter of Baldev Ram (PW3) and Smt. Lajwanti (PW4). She has deposed that she is residing along with her family comprising of her parents, grandparents and her elder sister. According to the witness on 05.01.2012 her school was closed on account of winter vacations and around 10:30 AM she came downstairs to her grandmother to have her breakfast when she heard a knocking on the door. Witness has further deposed that she inquired as to who was on the door when somebody from outside told her that they had come to check the meter but she did not open the door when they asked her to do so and in turn told her grandmother that there were some people who had come to check the meter. According to the witness, her grandmother opened the door when initially one person entered their house followed by three more persons who entered their house one by one. Witness has also deposed that the first person pretended as if he was reading the meter while the other persons in the meantime came inside and suddenly one of the persons caught hold of the hand of her grandmother and gestured to them to keep silent. She has testified that one person took out a knife and kept the same on her grandmother while another person took out a knife and kept the same on her and two other persons went upstairs where her sister was sleeping and she shouted on which her sister got up and came down after which there was a scramble in the house with everybody running. According to the witness, she kicked the person St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 16 who had put the knife on her and slapped him and opened the door and when she opened the door her grandfather was there. She has also deposed that all the four persons rushed out of the house one by one and then she noticed her grandfather lying on the ground. Witness has further deposed that outside one of these persons was apprehended by public persons and she could identify the assailants who had entered their house. She has pointed out towards the accused Rajesh who entered in their house for taking meter reading and was the person who had put the knife on the neck of her grandmother. She has further identified by pointing out towards the accused Raj Kumar as the person who had put a knife on her and pressed her mouth and to whom she had given a slap and kick. She has further identified the accused Vinod as the other assailant. However, she has not been able to identify the fourth accused Mohinder. (16) She has also correctly identified the case property i.e. one torch as the same which the accused Rajesh was carrying at the time of checking the meter as a meter reader, which torch is Ex.P1; monkey cap which was in possession of accused Rajesh and was dropped in front of her house at the time when Rajesh was apprehended which Ex.P2; two caps one of grey black colour and the other which is a monkey cap of brown colour which are collectively Ex.P3.

St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 17 (17) Leading questions were put by Ld. Addl. PP for the State wherein the witness has admitted that the third assailant who was having a pistol in his hand bolted the door from inside; that the person who was having pistol in his hand was demanding the keys of the almirah from her grand mother; that suddenly there was a knocking of the door from outside and the assailants running towards the door and after opening the door from inside they started to run away from there. (18) In her cross examination by the Ld. Defence Counsels the witness has deposed that police recorded her statement after making enquiries from her after the accused Rajesh was apprehended. She does not recollect if she had told to the police that two other persons went upstairs where her sister was sleeping and she shouted on which her sister got up and came down after which there was a scramble in the house with everybody running. According to the witness, she had told the police that she had kicked and slapped the person who had put the knife on her. She also states that she told the police that when she opened the door her grandfather was there and all the four persons rushed out of the house one by one and then she noticed her grandfather lying on the ground. However, when confronted with her statement under Sectin 161 Cr.P.C. which is Ex.PW5/DX1 the said fact is not found so recorded. She has voluntarily explained that at the time when her statement was being recorded she was in a mentally disturbed state of mind. Witness has further deposed that at the time of incident they St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 18 (i.e. family members) were three persons in the house and has voluntarily explained that her sister was sleeping while she came downstairs to her Dadi. According to her, their house is constructed upto two floors i.e. ground, first and second. She has testified that the incident took place between 10.30 to 10.45 AM and has voluntarily explained that it lasted for about 10­15 minutes. She has further deposed that at the time of incident she was inside the house on the ground floor and the main door leading to the room was closed and the person who knocked the door and come first was accused Rajesh who was having a torch and wearing a normal cap on her head, khaki pant, jacket and sweater and other persons were wearing monkey caps. On a specific Court Question the witness has explained that they could see their faces through the monkey caps as they were not covered. She has denied the suggestion that accused Rajesh had been apprehended on the mistaken identity or that she deposed in the court on the tutoring of the Investigating Officer. She has further denied the suggestion that she had identified the accused persons on the pointing out of the Investigating Officer outside the court or that accused persons have been falsely implicated in this case.

Forensic Experts:

(19) PW6 Sh. K.C. Varshney, Deputy Director, FSL, Rohini has deposed that on 16.03.2012 one sealed parcel, duly sealed with the St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 19 seal of RPS was received in FSL pertaining to the present case along with forwarding letter which was marked to him for examination and opinion and the seals on the parcel were intact. According to him, on opening the parcel, one country made pistol of .315 inch bore and one cartridge of 8 mm/.315 inch were taken out and marked as Ex.F1 and A1 respectively. Witness has further deposed that on examination of aforesaid exhibits, he found that the country made pistol Ex.F1 was in working order and test fire was conducted successfully and the cartridge Ex.A1 was live and was test fired through the country made pistol Ex.F1 and the country made pistol Ex.F1 was fire arm and the cartridge Ex.A1 was ammunition as defined in the Arms Act. He has proved his detailed report dated 06.07.2012 in this regard which is Ex.PW6/A and the exhibits were sent back with the seal of KCV FSL, Delhi after examination. This witness has not been cross examined by the Ld. Defence counsel despite opportunity in this regard and hence his testimony gone uncontroverted.

Police / Official witnesses :

(20) PW1 HC Mukesh Chand is a formal witness being the MHCM who has been examined by way of affidavit Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the entry in register no. 19 vide number 3710/12 copy of which is Ex.PW1/A; St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 20

entry no. 3716/12 copy of which is Ex.PW1/B; entry no. 3698­A/12 copy of which is Ex.PW1/C; entry in register no. 21 vide RC No. 22/21/12 copy of which is Ex.PW1/D and receipt of FSL copy of which is Ex.PW1/E. The witness has been cross­examined by the Ld. Defence Counsels wherein he has stood by his version. (21) PW2 HC Yog Raj is also a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the copy of FIR which is Ex.PW2/A and his endorsement on rukka which is Ex.PW2/B. The witness has been cross­examined by the Ld. Defence Counsels wherein he has stood by his version. (22) PW7 Ct. Bhupender has deposed that on 11.01.2012 he was posted at police station Shalimar Bagh and on that day, he joined the investigations along with SI Rajan Pal and HC Rajesh when they along with the accused Raj Kumar went to Etah U.P. in a private car in search of the co­accused Mahender and Vinod. According to him when they reached Etah, the secret informer informed that both these accused Mahender and Vinod who were previously in Etah had left for Delhi one day prior. Witness has further deposed that thereafter they returned to Delhi and accused Raj Kumar had earlier in his disclosure disclosed that he had hidden a country made pistol behind a Sai Temple at Mohan Nagar Gaziabad near the Hindon Pul. According to the witness on their way back to Delhi, Raj Kumar took them to said temple near the Hindon St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 21 Pul and got recovered a desi katta / country made revolver from the bushes which katta was kept in a white colored polythene. Witness has further deposed that Investigating Officer opened the said plastic bag and found a katta / country made revolver in it which on opening was found to contain a live cartridge. He has proved that the Investigating Officer prepared the khaka of the said katta on a white paper and also the khaka of the cartridge which had been recovered from the said katta which khaka is Ex.PW7/A. Witness has further deposed that the katta and cartridge were measured by the Investigating Officer and the length of the barrel of said katta was found to be 12.5 cm. The witness was permitted to see the khaka and to refresh his memory and after seeing the same the witness has deposed that the length of the butt was 7 cm and that of the body was 11 cms. He has deposed submits that length of the cartridge was 7.5 cm, out of which its body was 5.5 cm and diameter of the round was 1.3 cm. According to him, the Investigating Officer converted the same into pullanda after putting the katta in the same polythene and putting the same in a cloth after which he sealed the same with the seal of RPS which seal was handed over to HC Rajesh after use. According to him the seizure memo of the katta and the cartridge were prepared, which is Ex.PW7/B. He has testified that his statement was recorded by the Investigating Officer and from there he was relieved.

St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 22 (23) He has correctly identified the accused Raj Kumar in the Court and also identified the case property i.e. one desi katta along with one cartridge which was got recovered by the accused Raj Kumar which Katta is Ex.P4 and cartridge is Ex.P5.

(24) In his cross examination by Ld. Defence counsels, the witness has deposed that they started from the police station at about 2:30 AM (midnight) and Investigating Officer had made the departure entry. According to him they stared from the police station in a Santro car but is unable to tell from where it was arranged. He has also deposed that SI Rajan Pal had driven the Santro Car and reached Etah (UP) at about 9­10AM. Witness has further testified that the secret informer met them at a colony but he is unable to tell the name of the colony or the area from where the secret informer met the Investigating Officer. He has explained that at the most they stayed there not more than half an hour. According to him on that day accused Raj Kumar did not make any disclosure statement in his presence. He does not remember the time when they reached at Mohan Nagar, Gaziabad. Witness has further deposed that the vehicle was parked at the service road near the side of Sai Baba Temple which is about 50­60 meters from the temple. He has further explained that the place from where the country made pistol was recovered is about 50­60 meters from the temple and none of the police officials went inside the temple. Witness has admitted that there were public persons present at the temple and St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 23 has also deposed that Investigating Officer did not ask any public person to join the investigations. He has testified that the recovered katta is of 315 bore but he does not remember whether the Investigating Officer had mentioned the bore of the katta in the seizure memo and in the sketch of the katta. On seeing the sketch and seizure memo of the katta the witness has deposed that the bore is not mentioned on the same. He has also deposed that the pullanda of the said katta was prepared and all documentation was done while standing near the bushes from where the katta was recovered. He does not remember the time spent in preparing the pullanda of the katta but states that it took about one hour in doing the writing work and they remained at the spot for about one hour. The witness also does not remember whether the site plan of the place of the recovery was prepared by the Investigating Officer or not. According to him, till the time of their stay at the spot no one from the public came to them nor the Investigating Officer joined any public person in the proceedings in his presence. He also does not remember if the Investigating Officer had informed the local police station in whose jurisdiction, the place of recovery falls. The witness has further deposed that he he did not make any separate DD entry and has voluntarily explained that the combine entry had been made by the Investigating Officer. He has denied the suggestion that he did not join the investigations of this case or that no katta was recovered from the accused Raj Kumar or that the alleged recovery was planted upon him. St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 24 Witness has also denied the suggestion that all the writing work was done while sitting in the police station and he have signed the same on the asking of the Investigating Officer or that the signatures of accused Raj Kumar was obtained on blank papers which were later on converted into certain incriminating documents.

(25) PW8 HC Rajesh has deposed that on 05.01.2012 he was posted at police station Shalimar Bagh and on that day he along with Ct. Dalip were on patrolling duty in the area and at about 10:30 AM when they reached in front of BK­1/187, East Shalimar Bagh they heard the voice of "chor chor" and saw one person was running towards them on which he along with the help of Ct. Dalip apprehended that person who disclosed his name as Rajesh. According to the witness, meanwhile Baldev Ram also reached there and alleged that accused Rajesh along with other three associates entered in his house for committing robbery. He has further deposed that meanwhile SI Rajan Pal also reached the spot on which they produced the accused Rajesh before SI Rajan Pal Singh. He has proved that SI Rajan recorded the statement of Baldev Ram and Ct. Dalip went to the police station for registration of the FIR along with rukka who returned back to the spot and handed over the copy of the FIR and original rukka to SI Rajan. He has proved that thereafter SI Rajan arrested the accused Rajesh vide memo Ex.PW3/B and his personal search was conducted vide memo Ex.PW8/A and recorded his disclosure statement vide Ex.PW8/B. Witness has further St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 25 deposed that one torch and three monkey caps were also seized from the spot and two monkey caps were seized vide seizure memo Ex.PW3/D and one torch and one monkey cap were seized vide seizure memo Ex.PW3/C. According to the witness, Investigating Officer sealed these articles in a cloth pullanda and sealed with the seal of RPS and handed over the seal to him after use. He has testified that he took accused Rajesh to BJRM hospital for medical examination and after his medical examination he handed over the accused and the MLC to the Investigating Officer.

(26) He has further deposed that on 11.01.2012 he again joined the investigations of the present case along with SI Rajan Pal, Ct. Bhupender when they along with the accused Raj Kumar went to Etah U.P. in a private car in search of the co­accused Mahender and Vinod and when they reached Etah, the secret informer informed that both the accused Mahender and Vinod who were previously in Etah had left for Delhi one day prior and thereafter they returned to Delhi. According to him, accused Raj Kumar had earlier in his disclosure disclosed that he had hidden a country made pistol behind a Sai Temple at Mohan Nagar Gaziabad near the Hindon Pul and on their way back to Delhi, Raj Kumar took them to said temple near the Hindon Pul and got recovered a desi katta / country made revolver from the bushes which katta was kept in a white colored polythene. Witness has further deposed that Investigating Officer opened the said plastic bag and found the katta / St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 26 country made revolver in it which on opening was found to contain a live cartridge. He has proved that the Investigating Officer prepared the khaka of the said katta on a white paper and also the khaka of the cartridge which had been recovered from the said katta which khaka is Ex.PW7/A. According to him the katta and cartridge were measured by the Investigating Officer. After refreshing his memory by seeing the khaka, the witness has deposed that the length of the butt was 7 cm and that of the body was 11 cms; length of the cartridge was 7.5 cm, out of which its body was 5.5 cm and diameter of the round was 1.3 cm. According to him thereafter the Investigating Officer converted the same into pullanda after putting the katta in the same polythene and putting the same in a cloth after which he sealed the same with the seal of RPS which seal was handed over to him after use and the seizure memo of the katta and the cartridge were prepared, which memo is Ex.PW7/B. Witness has further deposed that thereafter they returned to Delhi at the police station and the pullanda was handed over to the MHC(M) by the Investigating Officer and the accused was thereafter got medically examined and given food after which he was put in the lock up by the Investigating Officer and his statement was recorded by the Investigating Officer.

(27) He has correctly identified the accused Rajesh and Raj Kumar in the Court and also identified the case property i.e. one torch and one monkey cap which are Ex.P1 and Ex.P2 respectively; two St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 27 monkey caps, one of grey black color and other is of brown color which are Ex.P3 collectively; one desi katta along with one cartridge as the same as got recovered by the accused Raj Kumar which Katta is Ex.P4 and cartridge is Ex.P5.

(28) In his cross examination by Ld. Defence counsels, the witness has explained that they started from the police station at about 10:30­11:00 AM and the Investigating Officer had made the departure entry. According to the witness, they stared from police station in a Santro car of SI Rajan Pal Singh who himself was driving the Santro Car. He has testified that they reached Etah (UP) at about 8:30­9:00 PM and the secret informer met them at bus stand Etah. Witness has further deposed that at the most they stayed there for about one and a half hour. According to him, on that day accused Raj Kumar did not make any disclosure statement in his presence. He has also deposed that they reached at Mohan Nagar, Gaziabad in the early morning, however he cannot tell the exact time. According to him the vehicle was parked on the main road, Hindon which is about 500 meters from the temple and the place from where the country made pistol was recovered is about 10­15 steps from the temple but he does not remember whether the Investigating Officer or any police official went inside the temple. He has further deposed that no public person was found present there at the temple. The witness has testified that the pullanda of the said katta and all documentations was done while standing near the Santro Car. St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 28 According to him, it took about 25­30 minutes in preparing the pullanda of the katta and about 25­30 in doing the writing work and they remained at the spot for about 1­1:15 hours. According to the witness, the Investigating Officer had prepared the rough site plan of place of the recovery and till their stay at the spot, no one from the public came to them nor the Investigating Officer joined any public person in the proceedings in his presence. Witness has further deposed that in his presence Investigating Officer did not inform the local police station in whose jurisdiction, the place of recovery falls nor did he make any separate DD entry and has voluntarily explained that the combine entry had been made by the Investigating Officer. According to the witness they reached police station Shalimar Bagh in the afternoon. He has also deposed that the Investigating Officer did not made any arrival entry in his presence. He is unable to tell who accompanied the accused Raj Kumar to the hospital for his medical examination. Witness has denied the suggestion that he did not join the investigations of this case or that no katta was recovered from the accused Raj Kumar and the alleged recovery was planted upon him. Witness has further denied the suggestion that all the writing work was done while sitting in the police station and he had signed the same on the asking of the Investigating Officer or that the signatures of accused Raj Kumar was obtained on blank papers which were later on converted into certain incriminating documents. He has denied the suggestion that accused Rajesh has been St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 29 falsely implicated in the present case after the actual person had been let off or that the case of Rajesh was that of mistaken identity. (29) PW9 Sh. Rajeev Ranjan has deposed that on 19.07.2012 he was posted as Addl. DCP (North west) and on that day investigating officer of this case had placed before him the report U/s 173 Cr. P.C, statements of the prosecution witnesses U/s 161 Cr. P.C, seizure memos and the ballistic examination report dated 06.07.2012 which he has duly perused. The witness has proved that after due application of mind and having been satisfied, pursuant to the power delegated to him vide order dated 09.11.2000 he accorded the sanction under Section 39 Arms Act to prosecute the accused Raj Kumar S/o Shyam Lal U/s 25 Arms Act which sanction is Ex.PW9/A. (30) In his cross examination by the Ld. Defence counsel, the witness has denied the suggestion that he has accorded the sanction on the asking of the investigating officer without any application of mind. Witness has admitted that the fire arm was not produced before him at the time he considered the application for grant of sanction and has voluntarily explained that the ballistic report had been placed before him which he duly perused.

(31) PW10 HC Pratap Singh has deposed that on 11.01.2012 he was posted at police station Shalimar Bagh and on that day he was on patrolling in the area. According to him at about 5­5:30 PM he received information from SI Rajan Pal that two persons would be coming from St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 30 phatak No. 7, near the railway line from the Kela godown side. Witness has further deposed that Ct. Suresh was accompanying him at that time and he shared this information with him on which both of them reached near phatak No. 7 where they met SI Rajan Pal and Baldev Ram and in his presence Baldev Ram pointed out towards two persons sitting near the railway line as the assailants who had come to his house and had committed the incident. According to him on this he along with Ct. Suresh apprehended the said two boys whose name they later on came to know was Vinod and Mahender. The witness has testified that SI Rajan Pal thereafter interrogated these persons and it was then that their names were disclosed as Vinod S/o Ghanshyam resident of C­13/4, Shahbad Dairy and Mahender, S/o Ram Mehar, resident of C­278, Shahbad Dairy. According to the witness, the complainant Baldev Ram who was with them identified both these boys as the assailants and the Investigating Officer thereafter carried out the personal search of the accused and arrested them. He has proved the arrest memo of the accused Vinod which is EX PW3/G; his personal search memo which is Ex.PW3/H; arrest memo of accused Mahender which is Ex.PW3/I and his personal search memo which is Ex.PW3/J. The witness has testified that the accused persons also made their disclosure statements which disclosure statement of accused Vinod is Ex.PW10/A and that of accused Mahender is Ex.PW10/B. According to him, in pursuance of their disclosure statements the accused persons led the police party to St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 31 the place of incident i.e. BK1/187, East Shalimar Bagh near Kela godown where the Investigating Officer prepared the pointing out memos which are Ex.PW10/C and Ex.PW10/D. Witness has further deposed that in their disclosure statements the accused had disclosed that they had collected the prior information regarding the complainant who was a business having a burtan / utensil shop at Adarsh Nagar and was residing at BK­1/187, East Shalimar Bagh and normally had eight­ ten lacs rupees at his house which could easily be robbed / looted. The witness has also deposed that the accused further disclosed that they had hatched this plan of robbing / looting the family of the complainant by entering his house by pretending to be NDPL employees and decided that in case of any resistance from the family, they would tie them up and also used force. According to the witness the accused also disclosed that one of them was carrying a fire arm and the other were carrying other weapons during the incident. He has deposed that after recording the disclosure statements of the accused their medical examination was got conducted and they were put in the lock up and the case property was deposited in the malkhana and his statement was recorded by the Investigating Officer. He has correctly identified the accused Vinod and Mahender in the Court.

(32) In his cross examination by Ld. Defence counsel, the witness has deposed that he left the police station at about 10­11AM on foot. According to the witness, he received telephonic call at about 5:00 St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 32 PM and he reached the spot within five­ten minutes. He has testified that after his reaching the spot the Investigating Officer and the complainant came there subsequently on the motorcycle of the Investigating Officer and the complainant pointed out towards the accused persons from a distance of 5­10 steps. Witness has admitted that all the police officials were in police uniform. He has also deposed that accused persons did not try to escape on seeing the police party and also states that the Investigating Officer did not brief them as to how the accused persons were to be apprehended. He is unable to tell which police official had apprehended the accused Mahender and accused Vinod. The witness has deposed that the uniform of the police officials were not torn at the time of apprehension of accused persons. Witness has further deposed that no public person was found present at the spot. Witness has admitted that there is a kela godown and states that no security guard of the Kela godown was asked to join the investigations. He does not remember if complainant Baldev Ram had told about the weapons carried by these two accused persons on the date of incident nor is he able to tell the place where the writing work was done at the spot. Witness has further deposed that it took about half an hour in doing the writing work and they remained at the spot for about 30­35 minutes. According to the witness no public person came there at the spot till they remained there. He is unable to tell whose disclosure statement was recorded first. The witness has deposed that when the St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 33 disclosure statement of one accused was recorded the other was being sited there at a distance of 5­7 steps. According to him it took about 20­25 minutes in recording the disclosure statements of both accused persons. According to him, he along with Ct. Suresh and the Investigating Officer took the accused persons for the pointing out on foot and the motorcycle of the Investigating Officer remained parked at Kela Godown. He has testified that the signatures of accused persons were obtained on the pointing out memos prepared by the Investigating Officer. However, after seeing the pointing out memos the witness has admitted that the said memos does not bear the signatures of the accused persons. According to him, they remained at the house of the complainant for about 10­15 minutes and the pointing out memos were prepared while sitting in the house of the complainant. Witness has further testified that his statement was recorded by the Investigating Officer on the same day at about 9­10 PM. Witness has denied the suggestion that he did not join the investigations of this case or that accused persons were not apprehended in the manner as stated by him or that they were lifted from their respective houses and falsely implicated in this case. Witness has further denied the suggestion that accused persons did not make any disclosure statement or that their signatures were obtained on blank papers which were later on converted into certain incriminating documents against them. He has also denied the suggestion that all writing work was done while sitting in the police St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 34 station and he had signed the same on the asking of the investigating officer.

(33) PW11 SI Rattan Kumar has deposed that on 08.01.2012 he was posted at police station Shalimar Bagh and on that day he along with Ct. Dalip and accused Rajesh who were on police custody remand conducted the investigations in the present case and went to Shahbad Dairy for search of the co­accused. According to the witness while they were returning from Shahbad Dairy at 5:30 PM, they met SI Rajan Pal and Ct. Gopal at red light of Samaipur Badli and SI Rajan Pal interrogated the accused Rajesh who informed that accused Raj Kumar, Mahender @ Munna and Vinod @ Kalu often came to the alcohol theka at Haiderpur in the evening and could be apprehended. The witness has also deposed that thereafter they went to the theka (liquor vend) at Haiderpur where the accused Rajesh pointed out towards one person who was standing at the theka as the accused Raj Kumar who was involved in the incident in the present case. He has testified that they apprehended that person who had been identified by Rajesh as Raj Kumar but when he was interrogated Raj Kumar refused to acknowledge and identify Rajesh stating that he did not know who Rajesh was. Witness has also deposed that still since he was a suspect, they apprehended him and brought him to the police station and in the meantime the complainant of this case who was a senior citizen also came to the police station and identified accused Raj Kumar as one of St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 35 the assailants. He has also deposed that thereafter the accused Raj Kumar was again interrogated by the Investigating Officer and thereafter he disclosed his identity as Raj Kumar, resident of Bhalswa Dairy. He has also deposed that the accused Raj Kumar admitted his involvement in the present case and also informed that he was a co­ accused along with Rajesh in another matter and after they had been released from the jail, he was involved in another incident along with Rajesh. The witness has further deposed that the accused Raj Kumar also disposed that thereafter they also met Vinod and Mahender and ganged up along with them and committed the various incidents. He has proved that Investigating Officer arrested the accused Raj Kumar vide memo Ex.PW3/E after that his personal search was taken vide memo Ex.PW3/F and his disclosure statement was recorded which is Ex.PW11/A. According to him, the accused Raj Kumar further disclosed that all of them i.e. Rajesh, himself, Vinod and Mahender had planned a bigger incident/vardat and further disclosed that Rajesh had called him one week prior to the incident and informed him that he had information that there is a businessman/lala residing near Kela Godown, who was running a utensil/bartan shop at jahangirpuri and during the day both he and his son leave for the shop and only the ladies and children remains at home and therefore if robbery is committed during the day then there are chances that they could rob/loot around 8­10 lacs from the house. Witness has further deposed that accused Raj Kumar St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 36 also disclosed that Rajesh took him in his Santro car to the house of this lala and showed him the place where they stood and kept a watch over the house of this businessman and observed the people coming and going and thereafter they also went to the shop of this lala/ businessman. The witness has testified that the accused Raj Kumar also disclosed that he realized that this lala/ businessman was having his shop near the shop of an electrician where he was previous employed at Jahangirpuri. He has also deposed that it was disclosed by the accused that one day prior to the incident Raj Kumar called all of them at his house where they took snacks and consumed alcohol after which made plans for giving effect to the robbery and who would do what which was then materialized at the house of Raj Kumar and it was planned that Rajesh would wear a khaki pant and go to the house of the said businessman with a torch pretending to be an NDPL official after which the others will follow him with their weapons and in case of any resistance they would use the same. The witness has further deposed that on the next date as per the planning they executed their plan but the plan went wrong as the businessman/ senior citizen returned home and Rajesh was apprehended at the spot itself whereas they escaped. He has proved that the accused Raj Kumar then took them to the spot of the incident and pointed out the place i.e. house No. BK1/187, East Shalimar Bagh, near Kela Godown vide memo which is Ex.PW11/B and his statement was thereafter recorded by the Investigating Officer. St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 37 (34) In his cross examination by the Ld. Defence Counsel, the witness has deposed that on 08.01.2012 he left police station at about 4:30 PM in a TSR along with Ct Rajesh and he made the DD entry at the time of his departure. According to him, Investigating Officer met him at Badli red light on Haiderpur side. He has admitted that public persons were present at the wine shop, however he is unable to tell their number. According to him, the accused Raj Kumar came to the wine shop within five­ten minutes of their reaching there and all the police officials were standing jointly near the vehicle when accused Raj Kumar came there. Witness has admitted that the accused Raj Kumar did not try to flee from the spot on seeing the police officials. Witness has also deposed that they remained at the wine shop for about five­seven minutes. He has testified that the accused Raj Kumar was brought to the police station in the Santro Car of the Investigating Officer and he along with the Investigating Officer and two accused were in the said car when they returned to the police station. He has also deposed that the complainant came to the police station at about 7­7:15 PM of his own and it took about 30­45 minutes in recording the disclosure statement of accused Raj Kumar and the complainant was not present at the time when disclosure statement of accused was recorded. Witness has further deposed that they left police station for the pointing out of the place at about 8:30 PM in a government gypsy and reached the house of complainant within ten minutes and they did not enter the St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 38 house of complainant and conducted proceedings outside the house. According to him Investigating Officer did not call any person from the house of complainant and no public person was present there at the spot and they remained at the spot for about 20­25 minutes. Witness has further deposed that his statement was recorded at police station in the night hours. He has testified that he did not state to the Investigating Officer in his statement recorded U/s 161 Cr. P.C. that accused Raj Kumar led police party to the place of incident. According to him the information regarding the arrest of Raj Kumar was conveyed to his friend Babloo after being called him at the police station. He has also deposed that they returned back to the police station at about 10:15­10:30 PM. Witness has denied the suggestion that he did not join the investigations of the present case or that accused Raj Kumar did not make any disclosure statement. He has also denied the suggestion that signatures of Raj Kumar were obtained on blank papers which were later on converted into various documents or that accused Raj Kumar did not led police party to the place of the incident. (35) PW12 SI Rajan Pal Singh is the subsequent Investigating Officer who has deposed that on 05.01.2012 he was posted at Police Station Shalimar Bagh and on that day on receipt of DD No.16A which is Ex.PW12/A he reached the spot i.e. BK­1/187, East Shalimar Bagh, Main Road, Kela Godam, Delhi where he found HC Rajesh, Ct. Dalip who had apprehended one person Rajesh as one of the assailants who St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 39 had been apprehended by the complainant and other public persons at the spot. According to the witnes he also found the complainant Baldev Ram, his wife Lajwanti and his granddaughter Maina and Baldev Ram informed him that he had gone to his shop alongwith his son in the morning at 9.00AM and had returned to his house at 10.30AM for having his breakfast when he found that there were voices coming from inside his house which was locked from inside. Witness has further deposed that Baldev Ram also informed him that when he (Baldev Ram) repeatedly knocked the door of his house he heard noises and then suddenly somebody opened the kundi and he heard cries of "Chhoro­ chhoro, Bhago­Bhago" and saw one man coming from inside his house who ran outside the house. According to him, Baldev Ram further informed that the man was followed by another person who was also having a knife in his hand and in the meanwhile when he tried to catch them third person came out from house with a knife and ran towards outside followed by a fourth person who was having a pistol in his hand and he further informed him that this fourth person who was having a pistol in his hand pushed him as a result of which he fell down but in the meanwhile his wife and granddaughter also came out form the house raising an alarm "chor chor, pakro ­pakro". The witness SI Rajan Pal has testified that Baldev Ram also informed him that on hearing this alarm and commotion the passer­byes and neighbours collected at the spot and two policemen who were also passing through the area came St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 40 there and in the meanwhile public persons along with the police officials had apprehended one person who had come outside form his house at the spot whose name was later disclosed as Rajesh S/o Raj Singh R/o of Udai Vihar, Near Shiv Mandir, Kanjhawala, Delhi. According to him Baldev Ram also told him that this Rajesh was the same person who was carrying a torch in his hand and was wearing a monkey cap. He has further deposed that Lajwanti who was also present at the spot pointed out towards the Rajesh as the person who had first entered their house pretending to be an employee of the NDPL with a torch in his hand saying that he wanted to take the reading of the meter and when he was permitted inside, he opened the door and three more persons followed him with arms. According to him, Lajwanti also informed him that it was Rajesh who had first press her mouth with his hand while his associate had put a knife on her neck while the third person put a knife on her granddaughter Maina and pressed her mouth with his hand and the fourth person who was having a pistol in his hand had threatened them to keep silent and hand over the key of almirah to them and while they were about to go inside the room, there was knocking from outside they panicked and therefore ran out of the house. The witness has proved that he immediately recorded statement of Baldev Ram which is Ex.PW3/A and attested the same after which he prepared a rukka which is Ex.PW12/A which was sent to Police Station through Ct. Dalip for registration of the FIR. According to the St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 41 Investigating Officer after some some Ct. Dalip came back to the spot and handed over copy of FIR and original rukka to him. He has proved having arrested the accused accused Rajesh vide Ex.PW3/B; conducted his personal search vide Ex.PW8/A and recorded the disclosure statement of accused Rajesh which is Ex.PW8/B. The witness has further deposed that one torch and one monkey cap recovered from the possession of accused Rajesh, were kept in a cloth pullanda and sealed with the seal of RPS and seized the same vide seizure memo vide Ex.PW3/C. He has further proved that the complainant also produced two monkey caps which were left by the assailants at the spot, which caps were also kept in a cloth pullanda by him and sealed the same with the seal of RPS and seized the same vide seizure memo Ex.PW3/D. He has proved having prepared the site plan at the instance of the complainant vide Ex.PW12/B. According to him he handed over the seal to HC Rajesh and thereafter they along with accused Rajesh reached at A 171, Bhalsawa Dairy but co­accused Raj Kumar was not found there and thereafter accused Rajesh was taken to BJRM Hospital for medical examination. According to the witness, he collected the MLC of the accused and thereafter they reached at the Police Station where he deposited the seized articles in the Malkhana and recorded statement of the police officials. Witness has further deposed that on the next day at the instance of accused Rajesh they reached Bhalsawa Dairy but Raj Kumar was not present there and thereafter the accused St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 42 Rajesh was produced before the court and he was sent to Judicial Custody and SI Rattan took the Police Custody remand of accused Rajesh in case FIR No. 189/11 Police Station Shalimar Bagh for seven days.

(36) He has further deposed that on 08.02.2012 he alongwith Ct. Gopal during the investigation of this case reached at Badli Red light where SI Rattan met him alongwith Ct. Dalip and accused Rajesh after which they reached at the local wine shop (Theka) at Haiderpur where at the instance of accused Rajesh the co­accused Raj Kumar was apprehended. According to the witness, thereafter accused Raj Kumar was taken to the police station Shalimar Bagh and meanwhile Baldev Ram came at the Police Station and identified the accused Raj Kumar as one of the assailants who was having a pistol in his hand. He has testified that the accused Raj Kumar confessed about his involvement in this case after which the accused Raj Kumar was arrested vide Ex.PW3/E; his personal search was conducted vide Ex.PW3/F; his disclosure statement was recorded vide Ex.PW11/A and accused Raj Kumar pointed out the place of occurrence vide memo Ex.PW11/B. The witness SI Rajan Pal has further deposed that on the next day on 09.01.2012 they along with accused Raj Kumar reached at his house i.e. A­171 Bhalsawa Dairy where at his instance one Santro Car bearing no. DL­2CW­4374 was seized vide seizure memo Ex.PW12/C and the accused Raj Kumar disclosed that he prepared the reiki / watch St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 43 alongwith co­accused Rajesh in the car and used the same on the day of incident for the commission of crime. He has proved that thereafter accused Raj Kumar was produced before the court and four days Police Custody remand was obtained.

(37) According to the witness, on 11.01.2012 he alongwith HC Rajesh, Ct. Bhupender and accused Raj Kumar went to Etah in a private vehicle but nothing was recovered there and when they were returning back then at Mohan Nagar Ghaziabad, near Hindon Bridge from the bushes backside of the garden of Sai Baba Mandir, one country made pistol and one live cartridge were got recovered by the accused Raj Kumar. He has proved having prepared the sketch of the pistol and cartridge vide Ex.PW7/A and having taken the measurements of pistol and cartridges after which he kept the pistol and cartridge in a cloth and sealed the same with the seal of RPS and seized the same vide seizure memo Ex.PW7/B which seal after use was handed over to HC Rajesh. According to the witness, thereafter they reached at the Police Station where he deposited seized articles in the Malkhana and recorded the statement of the witnesses. He has testified that on the same day at about 4.30PM Baldev Ram came at the Police Station and informed him that two assailants were sitting near the railway line, Kela Godam on which he along with HC Pratap, Ct. Suresh and the complainant reached the above said place where at the instance of complainant two accused Mahender @ Munna and Vinod @ Laddoo @ Kalu were apprehended St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 44 who were having knives at the time of incident. The witness has proved that both the accused were interrogated by him and they confessed about their involvement in this case. He has also proved having arrested the accused Vinod @ Laddo vide Ex.PW3/G; having taken his personal search vide Ex.PW3/H and having recorded disclosure statement of Vinod vide Ex.PW10/A. He has further proved having arrested the accused Mahender vide Ex.PW3/I; having conducted his personal search vide Ex.PW3/J and having recorded his disclosure statement vide Ex.PW10/B. According to him accused Vinod and Mahender pointed out the place of incident vide memo Ex.PW10/C and Ex.PW10/D respectively and after medical examination of the accused they returned back to the police station and recorded statement of witnesses. Witness has further deposed that during the investigation case property of this case was sent to FSL and after completion of investigation he submitted charge sheet against the accused persons and he collected the ballistic report and obtained the sanction under Section 39 of Arms Act against accused Raj Kumar and submitted supplementary charge sheet.

(38) Witness has correctly identified all the accused Rajesh, Raj Kumar, Vinod and Mahender in the Court and also the case property i.e. the torch which is Ex.P1; monkey cap which is Ex.P2; cap and one monkey cap which are Ex.P3 collectively; desi katta and one cartridge St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 45 as the same as recovered at the instance of accused Raj Kumar which are Ex.P4 and Ex.P5 respectively.

(39) In his cross examination by Ld. Defence counsels, witness has deposed that he reached at the spot at about 11.15AM. He has admitted that signatures of accused Rajesh were taken on the seizure memo of torch and monkey cap. However, when confronted with Ex.PW3/C the same does not bear the signatures of accused Rajesh. According to him he did not collect the ownership documents of the above said Santro car recovered at the instance of accused Raj Kumar and has voluntarily explained that the RC of car was in the name of wife of accused Raj Kumar. Witness has further deposed that all the written work was done by him and he also took the help of his staff for preparation of the documents. He has admitted that no weapon was recovered from the accused Rajesh. According to the witness, he had not shown the electricity meter in the site plan nor did he obtain the signatures of the family members of the victim at the spot while the accused persons pointed out the place of incident. He has further deposed that he he did not obtain the signatures of the accused Mahender and Vinod in their pointing out memo and has voluntarily explained that their signatures could not be obtained by mistake. He has testified that on 11.1.2012 they proceeded towards Etah at about 2:30 AM (midnight) and they reached Mohan Nagar at about 12:30 PM on 11.1.2012 when they returning back from Etah. According to him the St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 46 place of recovery of katta is about 110­150 meters from the temple and the vehicle was parked on the service road. Witness has further deposed that there were shops and rehris at a little distance from the place of recovery of the katta but he did not call any person from the shops, rehris and the temple while the katta was recovered. According to him he did not prepare the site plan of the place of recovery of the katta. He has testified that the writing work and the preparation of pullandas were done at the stairs of temple. The witness has further deposed that they did not inform the local police about the recovery of the katta and the cartridge and they remained at the spot for about one hour. Witness has also deposed that he only made a departure entry when the complaint gave information that two assailants were sitting at railway line Tilak Godown and he did not mention all the information given by the complainant in the DD. According to him the said DD is not submitted by him along with the charge sheet. Witness has denied the suggestion that the accused Mahender and Vinod were not arrested at the instance of the complainant or that both the accused were shown to the complainant at the police station. Witness has further deposed that he did not serve any notice to the accused persons to conceal their face and to claim TIP proceedings. Witness has denied the suggestion that he did not conduct the investigations of this case in a fair manner or that all the written work was done while sitting at the police station after obtaining the signatures of the accused persons on blank papers. Witness has St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 47 further denied the suggestion that the accused persons were falsely implicated in the present case due to their previous involvements or that nothing was recovered from any of the accused and the alleged recoveries were planted upon them. Witness has denied the suggestion that the accused persons did not suffer any disclosure statement or that he was deposing falsely being the Investigating Officer of this Case. STATEMENT OF ACCUSED / DEFENCE EVIDENCE:

(40) After completion of prosecution evidence the statements of all the accused persons were recorded under Section 313 Code of Criminal Procedure wherein all incriminating material was put to them which they have denied.

(41) The accused Rajesh has stated that he is innocent and has been falsely implicated by the police in connivance with the complainant Baldev Ram due to previous animosity. According to the accused, he has nothing to do with the alleged incident and nothing was recovered from his possession or at his instance. He has denied having made any disclosure statement to the police.

(42) Similarly the accused Raj Kumar has stated that he is innocent and has been falsely implicated by the police on account of his previous criminal record. According to the accused, he has nothing to do with the alleged incident and nothing was recovered from his possession or at his instance. He has denied having made any St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 48 disclosure statement to the police. According to him, he was lifted from his house and falsely implicated in the present case. (43) The accused Vinod has similarly stated that he is innocent and has been falsely implicated by the police on account of his previous criminal record. According to the accused, he has nothing to do with the alleged incident and nothing was recovered from his possession or at his instance. He has denied having made any disclosure statement to the police. According to him, he was lifted from his house and falsely implicated in the present case.

(44) Similarly the accused Mahender @ Munna has stated that he is innocent and has been falsely implicated by the police on account of his previous criminal record. According to the accused, he has nothing to do with the alleged incident and nothing was recovered from his possession or at his instance. He has denied having made any disclosure statement to the police. According to him, he was lifted from his house and falsely implicated in the present case. (45) The accused Rajesh, Raj Kumar and Vinod have chosen not to examine any witness in their defence. However, the accused Mahender @ Munna has examined one Ashok Kumar his neighbour in his defence as DW1.

(46) DW1 Ashok Kumar has deposed that he knew the accused Mahender @ Munna being his neighbour and residing in the same gali. According to the witness the house of Mahender @ Munna St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 49 is situated at a distance of about seven­eight houses from his house. He has further deposed that on 10.1.2012 at about 5:15 - 5:30 PM four­five police officials came to their gali and they apprehended accused Mahender @ Munna and took away him from there. According to the witness, on inquiry they told them that they were taking accused Mahender for some inquiry and they would leave him after some time.

He has further deposed that after two­three days he went to his village and when he came back after 15 days, then he came to know that accused Mahender @ Munna was falsely implicated in this case. (47) In his cross­examination the witness has deposed that previously he was running a shop of ration and now he is running a shop of ready­made garments. According to the witness he used to open his shop at around 5:30 AM and closed the same at around 9­9:30 AM. He has further deposed that three persons were in civil clothes and two were in police uniform. The witness has also deposed that he could only notice the name of one police official and has voluntarily explained that it was Rattan Singh since it was written in Hindi and he was lightly limping. He has testified that he had studied till class 7th and did not give any information regarding the false implication of the accused to any senior officers, Court or any other authority. According to the witness, accused Mahender is not related to him and has voluntarily added that he is a Baniya whereas the accused is a Kumhar. He has denied the suggestion that they have family relations with each other for St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 50 the last seven­eight years or that he has deposed falsely only to save the accused from penal consequences.

FINDINGS:

(48) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsels. I have also gone through the written memorandum of arguments filed on behalf of the parties and the records of the case. My findings are as under:

Identity of the accused:

(49) The case of the prosecution is that pursuant to the incident dated 5.1.2012 the accused Rajesh was apprehended at the spot of the incident itself by the public persons. On 8.2.2012 the accused Raj Kumar had been apprehended by the police on the pointing out of accused Rajesh near the wine shop at Haiderpur. Thereafter on 11.1.2012 i.e. after about a week of the incident the complainant had seen the accused Mahender @ Munna and Vinod @ Laddoo @ Kalu sitting near the railway line, Kela Godown and informed the police pursuant to which the accused Mahender @ Munna and Vinod were apprehended and arrested.

(50) The complainant in the present case namely Baldev Ram (PW3), his wife Lajwanti (PW4) and his grand­daughter Mahima @ Maina (PW5) all of whom are eye witnesses have identified the accused St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 51 Rajesh as the person who had entered their house pretending himself to be the Meter Reader dressed in Khaki pants, carrying a torch in his hand after which he caught hold the neck of Smt. Lajwanti while the other three accused also entered the house. They have all identified him as the person who was apprehended outside their house by public persons with the help of beat officials.

(51) Baldev Ram has identified the accused Rajesh as the first person who came out of the house while he was standing on the door who had given him a push when he tried to catch him. Smt. Lajwanti (PW4) who is the wife of Baldev Ram has only been able to identify only one accused i.e. Rajesh as the person who was having a torch in his hands and entered the house for taking the reading of the electricity meter and had pressed her mouth and put a knife on her neck. Similarly Ms. Mahima @ Maina (PW5) has also identified the accused Rajesh as the person who had come inside the house claiming himself to be the meter reader and had pressed the neck of her grand­mother. The accused Rajesh having been apprehended at the spot of the incident itself and the victims having identified him there itself, there can be no dispute of his identity and that too after he had been correctly identified by the victims even in the Court.

(52) In so far as accused Raj Kumar is concerned he has also been identified by Baldev Ram and his grand­daughter Mahima @ Maina. Baldev Ram (PW3) has identified Raj Kumar as the person St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 52 who came out of the house after the first person had given him a push. According to Baldev Ram the accused Raj Kumar was having a Katta in his hand and when he tried to stop this second person (Raj Kumar) who came out of his house, he was given a push by him. Mahima @ Maina (PW5) has identified the accused Raj Kumar as the person who had put a knife on her and pressed her mouth and while resisting Mahima @ Maina had given him a slap and thereafter kicked him. Further, after his apprehension when Raj Kumar was taken to Police Station, Baldev Ram has proved having identified him there in the Police Station as one of the assailants whom he had seen coming out of his house having a desi katta in his hand which he showed to him when he (Baldev Ram) tried to catch him. This being the background, I hold that the identity of the accused Baldev Ram also stands established.

(53) In so far as the accused Vinod is concerned, he has been correctly identified by Mahima @ Maina as one of the assailants who had entered their house duly armed with knife which he had shown to them along with the other assailants. Baldev Ram (PW3) has also identified Vinod as one of the assailants whom he had seen coming out of their house and whom he had himself got apprehended and arrested from Kela Godown on 11.1.2012.

(54) Coming now to the accused Mahender @ Munna the victim / eye witness Mahima @ Maina has not been able to identify him in the Court though she is very categorical that there were four persons St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 53 who had entered their house, all armed with knives. It is in fact Baldev Ram (PW3) has also identified Mahender @ Munna as one of the assailants whom he had seen coming out of their house and whom he had himself got apprehended and arrested from Kela Godown on 11.1.2012.

(55) I may observe that Smt. Lajwanti has only been able to identify Rajesh as the person who had caught hold of her. She is an old lady who has explained that on seeing the incident she became extremely nervous and scared so much so that she could not even recollect anything what the assailants were saying. This explains why Lajwanti has not been able to identify the other accused though she is categorical that four persons had entered the house duly armed. Similarly, Mahima @ Maina (PW5) has despite being very specific that four persons had entered the house could not identify the fourth accused Mahender @ Munna. She has explained that she was resisting the intruders and on seeing one person pressing the mouth of her grand­ mother and the other one holding her while the other two trying to go upstairs where her elder sister was sleeping, she not only raised an alarm but started giving fist and kick blows to the assailants. This being the situation it is only natural that the witness may not be able to recollect the details of the fourth intruder / assailant whom Baldev Ram who was outside at that time has identified. Had the eye witnesses / victims been tutored as alleged by the Ld. Defence Counsels they would St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 54 all have unanimously identified all the assailants without any difficulty which is not the case. The complainant and his family have no history of any previous animosity with the accused rather none of the victims were known to the accused nor there is any reason why they would falsely implicate the accused one of whom was apprehended at the time of the incident itself and hence, I hereby hold the testimonies of the victims / eye witnesses Baldev Ram (PW3), Lajwanti (PW4) and Mahima @ Maina (PW5) reliable and trustworthy on the aspect of identification of the accused and in this view of the matter I hereby hold that the identity of all the four accused i.e. Rajesh, Raj Kumar, Vinod and Mahender stands established and proved.

Allegations against the accused/ use of arms by the accused at the time of the incident:

(56) As per the allegations of the prosecution, on 5.1.2012 all the four accused namely Rajesh, Raj Kumar, Vinod and Mahender entered the house of the complainant Baldev Ram pretending themselves to be officials of NDPL and attempted to commit armed robbery. The three public witnesses including the complainant Baldev Ram aged around 65­66 years, his wife Smt. Lajwanti aged around 55 years and their grand­daughter Ms. Mahima @ Maina a young girl of 16 years put a brave resistance to the intruders / armed robbers who had entered their house. It was only on account of their alertness that they had been able St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 55 to ward off a bigger incident. Even in the Court, given the circumstances when most of the victims reel under pressure when faced with such situations where they are confronted with criminals, the entire family has bravely stood by their version very consistently and identified the accused. In fact Baldev Ram (PW3) has identified all the four accused whereas Smt. Lajwanti (PW4) has identified only the accused Rajesh whereas Ms. Mahima @ Maina (PW5) has identified three accused i.e. Rajesh, Raj Kumar and Vinod. They have also confirmed the incident and placed on record all that had transpired. (57) It is alleged by the prosecution that all the accused had hatched a criminal conspiracy with each other and after making preparation entered the property No. BK1/187, Shalimar Bagh, Near Kela Godown by pretending themselves to be the officials from the electricity department in order to commit an armed robbery. They were carrying weapons like knives and country made pistol. According to prosecution, a watch had been kept at the house of Baldev Ram prior to the incident and it was pursuant to the same that the incident was planned and given effect. In this regard the prosecution has placed its reliance on the testimonies of the victims and the disclosure statements of the accused themselves which according to the prosecution finds due corroboration from the circumstantial evidence showing that the accused had come armed with the weapons and were wearing monkey caps indicating that the incident had been carefully planned. St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 56 (58) Ld. Addl. PP for the State has placed its reliance on the testimony of SI Rattan Kumar (PW11) and also on the disclosure statement of the accused persons. It is submitted that after their arrest the accused Rajesh, Raj Kumar, Vinod and Mahender had during the interrogation disclosed that a week prior to the incident they had an information that there is a businessman/ Lala residing near Kela Godown who was running a utensil shop at Jahangir Puri and during the day both he and his son used to remain at the spot and only the ladies and children remain at home and there are chances that if robbery is committed they can rob about eight to ten lacs from the house. The accused further disclosed to the police that the accused Rajesh took Raj Kumar to the house of said Lala in his Santro Car and showed him the place where they stood and kept a watch / recce over the house of the said businessman and observed people coming and going after which they also went to the shop of said businessman. The accused Raj Kumar has disclosed that when they went to the shop of this businessman he realized that this businessman was having his shop near the shop of an electrician where he (accused Raj Kumar) was previously employed. The accused also disclosed that one day prior to the incident accused Raj Kumar called all of them at his house where they took snacks and alcohol and made a plan that Rajesh would wear a khaki pant and would go to the house of business with a torch pretending to be NDPL official after which the other would follow him with their St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 57 weapons and in case of any resistance they would use the same. (59) The defence of the accused is that they are innocent and have been falsely implicated by the police only to work out the present case and that the public witnesses have wrongly identified them on the tutoring of the local police. An objection has been raised by the defence that the above disclosure of the accused is hit by Section 27 of Indian Evidence Act and would not be admissible in evidence, which of course is a valid objection. Only the portion of the disclosure statements of the accused leading to the discovery of fact which includes discovery of person, place, event or any object is admissible in evidence. (60) I have considered the rival contentions and I may observe that the manner in which the offence has taken place when the accused Rajesh entered the house of the complainant pretending himself to be an official of NDPL and the manner how he opened the door for others to follow him, all of them duly armed after which they threatened the victims to handover the keys of almirah and valuable to them, reflect a pre­planning and premeditation. Though the entire disclosure statements of the accused would be hit by Section 27 of Evidence Act yet the testimonies of the victims confirming the manner in which the entire episode took place i.e. the accused Rajesh entering the house with a torch in his hand & apparently dressed as a Meter Reader and having told the victims that he had come to take the reading of the meter and thereafter the other accused following him wearing monkey caps, proves St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 58 the existence of premeditation and pre­planning prior to the incident.

Further, being armed with deadly weapons after which they asked the victims to handover their valuable belongings to them, are all reflective of the criminal intent, prior meeting of mind, acting in concert to attain a common object and conspiracy. Also, the fact that accused Raj Kumar was an electrician and was previously working in another shop situated in the same area where Baldev Ram had his shop was a fact which was not within the knowledge of any person including Baldev Ram and came to the knowledge of the police only thereafter. Hence, his disclosure to this extent would be incriminating. (61) Coming first to the witness Baldev Ram (PW3), the relevant portion of his testimony is as under:

"........ I am a retired Delhi Govt. Servant from LNJP hospital. I do not remember exactly the date, month and year of the incident but seven - eight months prior from today at about 10­30 - 11 a.m. I was coming back to my house from my shop. On that day at about 9 a.m. I had gone to the shop with my son namely Suresh. I heard some noise when I reached at my house at about 10­30 - 11 a.m. I knocked on the doors of my house. I heard the noise from inside that Chor Aa Gaye Hain. Meanwhile, door was opened from inside by my wife when one person came out from the house. I tried to catch this person. He pushed me. Meanwhile, another person came from inside the house. He also pushed me and I shouted and raised an alarm Pakro­Pakro. Meanwhile, third person and fourth person came from inside of the St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 59 house. Public persons gathered there and one of the assailant was apprehended by the public persons from behind a van. My wife Lajwanti and my grand daughter Maina was inside the house and they informed me that the person who had been apprehended by the public persons was the same person who had entered our house and she identified him. Maina also told me that the person who was apprehended alongwith three other persons who had entered our house were armed with knives and pistols. Somebody had made a call to the police and police came there and took away the persons apprehended by public persons. I noticed that two police personnels who were on patrolling also came running to the spot when the accused was apprehended by public. When the police came to the spot I told whatever had happened.

In the evening I went to the police station where my detailed statement was recorded which statement is Ex.PW3/A bearing my signatures at point A which I identify. There I again identified the same boy who had been apprehended at the spot and had been identified by my grand daughter as the person who had entered our house. At this stage the witness has pointed out towards the accused Rajesh as the person who had entered their house and had been apprehended by the public persons. The accused (Rajesh) was arrested in my presence vide memo Ex.PW­3/B bearing my signatures at point A. Rajesh is the same person who was having a torch in his hand when he entered our house and claimed himself to be a Meter Reader/checker who had come for checking. At the time when we caught hold of St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 60 accused Rajesh one monkey cap had fallen down on the ground in front of our house which was carried by the accused Rajesh which I pointed out to the police and handed over to them. They seized both the torch and the monkey cap vide memo Ex. PW­3/C bearing my signatures at point A. Two more monkey caps were recovered which were fallen from the hands of the other accused a little ahead of our house which were also seized by the police vide memo Ex. PW­3/D bearing my signatures at point A. After 3­4 days I had gone to the police station there I found another accused in the police station and identified the other person who had entered our house it was there he disclosed his name as Raj Kumar. He was arrested by the police vide memo Ex. PW­3/E bearing my signatures at point A and his personal search was carried out vide Ex. PW­3/F bearing my signatures at point A. I may add that on seeing me this accused Raj Kumar present in the court today (correctly identified) disclosed the police that he was working as an electrician in the same area and when I asked him in the police station how he could reach my house he disclosed to the police that they used to pass my house in the evening/night and had kept a watch.

After about a week two more boys had been apprehended by the police and I went to the police station to identify them. There I identified two boys who were arrested in my presence. At this stage the witness had pointed out towards accused Vinod (correctly identified by pointing out) as the person whom he earlier identified in the police station and was arrested vide memo Ex. PW­3/G bearing my St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 61 signatures at point A and took his personal search vide memo Ex. PW­3/H bearing my signatures at point A. I also identified another boy. At this stage witness had pointed out towards the accused Mohinder @ Munna (correctly identified) as the fourth boy whom he had identified in the police station. The said accused was arrested vide memo Ex. PW­3/I bearing my signatures at point A. His personal search was taken vide memo Ex. PW­3/J bearing my signatures at point A. I can identify the torch and the monkey caps so recovered from the possession of the accused....."

(62) Leading questions were put to the witness Baldev Ram by the Ld. Addl. PP for the State wherein he has deposed as under:

"....... At this stage Ld. APP for the State wants to put some leading questions on the dates of incident and of the arrest of the accused. Permission granted.

It is correct that the incident pertains to 05.01.2012 i.e. the same day on which my statement was recorded. It is correct that I had told the police everything which was disclosed to me by my wife and my granddaughter. It is correct that I had identified the accused Raj Kumar on the same day on which I had signed the arrest memo i.e. 08.01.2012. It is also correct that I had told the police that Raj Kumar is the same person who had pushed me and had shown the katta to me vol. I had fallen down because of the push he gave to me.

It is correct that I had identified the accused Vinod and Mohinder on which day on which I had signed their arrest memos and other documents pertaining to them i.e. 11.01.2012. It is correct that I St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 62 had seen the accused Vinod and Mohinder sitting near the railway line kela godown near the phatak while I was coming back on my scooter and thereafter, I made a call to the police and they had been apprehended on my pointing out. I could not tell these facts previously because I had forgotten the same . Vol. whatever I was asked by the prosecutor I was answering and there was no other opportunity...."

(63) It is writ large from the aforesaid that Baldev Ram has explained how he could identify the accused and that is because he had seen them i.e. accused Rajesh followed by other three assailants one by one when he could see all of them. In fact he was pushed to ground by the first person who came out (Rajesh) and when he tried to catch him in the meanwhile the second accused (Raj Kumar) came out carrying a katta which he showed to him while pushing him. The incident took place in broad day light and there was sufficient opportunity for the complainant to see the faces of the assailants. He has identified the accused Rajesh as the person who was apprehended at the spot by the public persons with the help of beat officials who had also reached the spot. He has also explained that the monkey caps which fell down while the assailants were running, were found lying near his house which caps he has duly identified in the Court.

(64) Coming now to the testimony of Smt. Lajwanti (PW4), the relevant portion of her testimony is as under:

St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 63

"........ I am a housewife. In my house, my husband, my son Suresh, my daughter in law namely Neeraj and grand daughter Mehak and Mahima @ Maina are residing. On 05.01.12 at about 10:00­10:30 am, I alongwith my daughter in law Mahima @ Maina was present at my house. My daughter in law Neeraj had gone to her parental house at that time. My husband Baldev Ram and my son Suresh had gone to the shop at about 9:00 am on that day.

On 05.01.2, at about 10:00­10:30 am, someone pressed our call bell at the door. My grand daughter Maina saw the outsider from the inside and told me that some persons came there for taking the electricity meter readings. Thereafter, I opened the door and I found four persons who told me that they had come for taking the electricity meter reading. One person was checking the electricity meter by his torch. I was standing there and suddenly he caught hold me by my neck and brought me in the room where Maina was standing and he also pressed my mouth by his hand. The other persons also took out their knives and pistols. Maina tried to save me but the above said assailants also caught hold her and pressed her mouth and they put knives on my neck and also on the neck of Maina. The above said persons also bolted door from the inside. The above said assailants were saying something but due to nervousness, I could not hear the same but meanwhile, there was a knocking on the door from outside and the assailants opened the door from the inside. The above said four assailants went towards the door. The two assailants pushed my husband who was knocking on the doors and one of the assailants had shown the pistol to my St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 64 husband. One of the assailant who was having torch was apprehended by the public persons and three monkey caps were also found outside of our house. Police also reached at the spot and the apprehended person was arrested by the police. Witness has correctly identified the accused Rajesh by pointing out towards him as the person who was having a torch in his hands and entered the house for taking the reading of the electricity meter....."

(65) Smt. Lajwanti (PW4) has been cross­examined at length and it is evident that she has stood her ground. She has corroborated the testimony of her husband Baldev Ram (PW4) to the extent that four persons had entered their house of which one was the accused Rajesh who had entered first followed by another man who was carrying knives and country made pistol in their hands. She has explained that when she asked the accused Rajesh as to who he was, he told her that he was a Meter Reader and was having a torch in his hand. She has further explained that due to extreme fear and nervousness she could only identify the person who had caught hold of her.

(66) Coming now to the testimony of Ms. Mahima @ Maina (PW5), the relevant portion of the same is reproduced as under:

"....... I am a student of class XI. I am residing at the aforementioned address alongwith my family comprising of my parents, grandparents and my elder sister. On 05.01.2012 my school was closed on account of winter vacations. Around 10­30 a.m. I came downstairs to my grand mother to have my St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 65 breakfast when I heard a knocking on the door. I enquired who was on the door when somebody from outside told me that they had come to check the meter.

I did not open the door when they asked me to do so and I told my grand mother that there was some people who had come to check the meter. My grandmother opened the door when initially one person entered our house . He was then followed by three more persons who entered our house one by one. The first person pretended as if he was reading the meter while the other persons in the meantime came inside . Suddenly one of the persons caught hold of the hand of my grandmother and gestured to us to keep silent . One person took out a knife and kept the same on my grand mother and another person took out a knife and kept the same on me. Two other persons went upstairs where my sister was sleeping and I shouted on which my sister got up and came down after which there was a scramble in the house with everybody running. The person who had put the knife on me I kicked him and slapped him and opened the door. When I opened the door my grandfather was there and all the four persons rushed out of the house one by one and then I noticed my grandfather lying on the ground. Outside one of these persons was apprehended by public persons. I can identify the assailants who had entered our house. At this stage the witness pointed out towards the accused Rajesh who entered in our house for taking meter reading and he is the person who had put the knife on the neck of her grandmother. She has further identified by pointing out towards the accused Raj Kumar as the person who had put a knife on her and pressed her mouth and to whom she had given a slap and kick.

St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 66 She has further identified the accused Vinod as the other assailant. Court observation : The witness has not identified the fourth accused Mohinder......"

(67) Ms. Mahima @ Maina (PW5) was a student of Class XI at the time of incident and was present at home preparing for her examinations. She has corroborated the testimony of Lajwanti (PW4) to the extent and the manner in which the incident took place. She has identified three accused persons i.e. accused Rajesh who had entered in their house for taking meter reading and had put the knife on the neck of her grandmother; accused Raj Kumar as the person who had put a knife on her and pressed her mouth and to whom she had given a slap and kick and the accused Vinod as the other assailant. It was Mahima @ Maina (PW5) who had given a stiff resistance to the intruders particularly when she saw them pressing her grand­mother's mouth and had slapped and kicked the accused Raj Kumar who had caught her and put a knife on her. This she had done when she heard a knocking on the door (which was by Baldev Ram who had incidentally came home that day) and then raised an alarm. Here, I may observe that in so far as the accused are concerned they had left no stone untouched. The robbery would have succeeded but for the fact that unprecedentedly by sheer chance Baldev Ram came back home that day thereby ruining the plans made by the accused persons. From a combined reading of the testimonies of the witnesses Baldev Ram (PW3), Smt. Lajwanti (PW4) St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 67 and Ms. Mahima @ Maina (PW5), the following facts emerge:

➢ That Baldev Ram is a retired Delhi Government Servant from LNJP Hospital and is residing at BK­1/187, Shalimar Bagh, Near Kela Godown, Delhi along with his family comprising of wife Lajwanti @ Laj, son, daughter in law and grand­daughters one of whom is Mahima @ Maina another eye witness to the incident.

➢ That Baldev Ram used to help his son Suresh in his shop of utensils which shop is situated at Adarsh Nagar. ➢ That on 5.1.2012 as usual Baldev Ram had gone to the shop along with his son at about 9:00 AM and Smt. Lajwanti along with their grand­daughters remained at home (the daughter in law having gone to her parental house).

➢ That while Smt. Lajwanti and Ms. Mahima @ Maina were present at home, at about 10:30 AM someone pressed the door bell of their house and the accused Rajesh who was having a torch in his hand, entered the house pretending himself to be the Meter Reader.

➢ That the accused Rajesh was then followed by three more persons who entered the house one by one and the accused pretended as if he was reading the meter while the other persons (Raj Kumar, Vinod and Mahender) in the meantime came inside.

St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 68 ➢ That suddenly one of the accused Rajesh caught hold the hands of Smt. Lajwanti and then shut her mouth by pressing it with his hand and put a knife on her neck and gestured her to keep quiet.

➢ That another accused caught hold the hands of Ms. Mahima @ Maina and put a knife on her and pressed her mouth and gestured them to keep silent.

➢ That other assailants also took out the knives and pistol and asked the victims to handover their belongings. ➢ That there was a scramble in the house and two accused were trying to move up the staircase while two of them held on to the victims.

➢ That in the meanwhile there was a knocking on the door as the complainant Baldev Ram unexpectedly had come home. ➢ That on hearing the knocking and finding an opportunity Ms. Mahima @ Maina kicked the assailant (Raj Kumar) and also slapped him.

➢ That the accused / assailants shocked at the reaction of the victims and with the turn of events, started rushing out to save themselves for the fear of being caught.

➢ That the accused / assailants started to rush out from the house in which process Baldev Ram was pushed by the first person who came out i.e. Rajesh and then also by second person St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 69 pursuant to which he fell down while the third and fourth persons also followed them and rushed out.

➢ That while the three assailants managed to escape the accused Rajesh hid himself behind a van.

➢ That as soon as the alarm was raised by the victims, a large number of public persons gathered and noticed the accused Rajesh hiding and was apprehended and was immediately recognized and identified by first Baldev Ram and then by Smt. Lajwanti and Mahima on which he was apprehended. ➢ That a PCR a call was made and in the meanwhile HC Rajesh and Ct. Dalip who were passing through the area (being on patrolling duty) also reached the spot and apprehended Rajesh and information was given to the local police regarding the incident.

➢ That on checking the spot the monkey caps which the accused were wearing and the torch which the accused Rajesh was carrying, were lifted which have been duly identified by all the three victims in the Court.

➢ That the accused while running away from the spot also threw their monkey caps which were recovered.

(68) It is writ large from the above that the manner in which the witnesses / victims have narrated the entire incident appears to be truthful and credible. There is no reason to disbelieve the same. There St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 70 is nothing on record to show that the victims / witnesses were known to each other. Rather, it was only the accused Raj Kumar an electrician by profession who was previously working in a shop situated in the same area where Baldev Ram had his shop.

(69) The victims have proved that first the accused Rajesh had entered the house followed by three others. It was only on account of the resistance put forth by the victims specifically the young girl / grand­daughter of the complainant namely Mahima @ Maina who resisted the accused never expected that they could not succeed in actually committing the theft and carrying away the property. (70) Further, there was also a turn of events when the complainant Baldev Ram who unprecedentedly chose to come back home and knocked at the door of his house virtually at the same time when there was a scuffle going on inside the house between the assailants and the victims, that the accused panicked and started to run outside the house.

(71) There cannot be a bigger dis­service to the community than to disbelieve those who are victims of crime particularly those who have stood by the Law and taken pains to appear in the Court and assist the Court in bringing out the truth. On one side the innocent victims and on the other hand the accused who are dreaded criminal with large number of cases against them. Of course, the Courts of Law will stand by the people who are on the right side of law.

St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 71 (72) The manner in which the accused secured entry into the house of the complainant / victims by pretending to be persons from the NDPL after dressing up in Khaki pants and carrying a torch as if taking meter readings; after securing their entry the threats executed by the accused to the victims to handover their valuable belongings' and the use of dangerous weapons i.e. show of country made pistol and knives to the victims which stand established from the testimonies of Smt. Lajwanti (PW4) and Mahima @ Maina (PW5) coupled with the fact that the accused Rajesh was apprehended at the spot of the incident itself outside house of the victims with the help of public persons and beat constables when he was immediately identified by the complainant Baldev Ram and his family members i.e. Lajwanti and Mahima @ Maina at the spot, lends authenticity and credibility to the version put forth by the victims and confirms the existence of premeditation and pre­planning. It conclusively establishes the prior meeting of mind, premeditation, pre­planning and existence of the conspiracy to commit armed robbery in the house of the complainant. (73) Further, in so far as the arrest of the accused is concerned the same has been established because the accused Rajesh Kumar was apprehended at the spot itself and the accused Raj Kumar had been apprehended pursuant to the disclosure and pointing out of the accused Rajesh. In so far as the accused Vinod @ Kalu and Mahender @ Munna are concerned it was the complainant Baldev Ram who had St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 72 noticed them sitting near railway line, Kela Godown and identified them as the boys who had come to his house on which he informed the Investigating Officer SI Rajan Pal who thereafter apprehended both Vinod and Mahender @ Munna.

(74) It is writ large that the accused had actually entered the house of the victims and had used the weapons carried by them for threatening them and had also asked them to handover their belongings including the keys of Almirah to them thereby proving that in order to commit robbery they had wrongfully restrained the victims Lajwanti @ Laj and Mahima @ Maina under the fear of instant death or hurt. The act of the accused was not of an attempt but they had crossed the stage of attempt to robbery and actually completed the robbery as contemplated under Section 390 Indian Penal Code (punishable under Section 392/ 397 Indian Penal Code). Though the charges framed against the accused are under Sections 393 & 398 Indian Penal Code, however since the provisions of Section 221 (2) Code of Criminal Procedure provides that if in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub­section (1), he may be convicted of the offence which is shown to have committed, although he was not charged with it, hence despite the fact that no charge under Section 392 & 397 IPC have been framed yet it appears from the evidence on record that the accused have actually St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 73 crossed the stage of attempt and committed the substantive offence of robbery I hold them (accused Rajesh, Raj Kumar, Vinod and Mahender) guilty of having committed armed robbery punishable under Sections 392 & 397 Indian Penal Code.

(75) This being the background, I hereby hold that the prosecution has been able to prove and substantiate the allegations made against the accused Rajesh, Raj Kumar, Vinod @ Kalu and Mahender @ Munna of having hatched a criminal conspiracy to commit robbery at house bearing No.BK­1/187, Shalimar Bagh, Main Road, Kela Godown Road belonging to Baldev Ram; having committed house trespass at the abovesaid house having made preparation for causing hurt to family members of Baldev Ram for assaulting them or wrongful restrain them or for putting them in fear of hurt or of assault or of wrongful restrain and having committed robbery at the said house with Smt. Lajwanti and Ms. Mahima @ Maina duly armed with deadly weapons i.e. knives and pistol. Further, the accused Raj Kumar is also liable for using the country made pistol (by showing the same to the victim Baldev Ram) during the incident.

Recovery of country made pistol pursuant to the disclosure statement of the accused Raj Kumar - established:

(76) The case of the prosecution is that pursuant to his arrest on 8.2.2012 the accused Raj Kumar made a disclosure statement to the police wherein he had disclosed that they had kept a watch on the house St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 74 of Baldev Ram and a day prior to the incident he along with accused Rajesh had gone to the area in his Santro Car bearing No. DL­2CW­4374 and planned to commit robbery. Pursuant to the same he got recovered the Santro Car bearing No. DL­2CW­4374 from his house i.e. A­171, Bhalswa Dairy which car was seized vide memo Ex.PW12/C. Thereafter during the Police Custody remand on 11.1.2012 when the police party comprising of HC Rajesh, Ct.

Bhupender and SI Rajan Pal went to Etah in search of accused Mahender & Vinod and on the way back to Delhi when they reached at Mohan Nagar, Ghaziabad, near Hindon Bridge the accused Raj Kumar pointed out the bushes on the backside on the garden of Sai Baba Mandir from where he got recovered a country made pistol. On checking a live cartridge was found inside it. The accused Raj Kumar disclosed that it was the same country made pistol which was used in the commission of the offence in the present case. The said country made pistol and the cartridge was thereafter sealed and seized vide memo Ex.PW7/B. In this regard the prosecution has placed its reliance on the testimonies of Ct. Bhupedner (PW7), HC Rajesh (PW8) and SI Rajan Pal (PW12). The Ld. Defence counsel on the other hand has vehemently argued that the said country made pistol has been planted upon the accused Raj Kumar only to connect him with the present offence.

St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 75 (77) Before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.

(78) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:

1. Anything, state of things, or relation of things, or capable of being perceived by the senses,

2. Any mental condition of which any person is conscious.

(79) It further provides five illustrations as to what would constitute a fact which are as under:

(a) That there are certain objects arranged in a certain order in a certain place, is a fact

(b) That a man heard or saw something, is a fact.

(c) That a man said certain words, is a fact.

(d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 76 specified time conscious of a particular sensation, is a fact.

(e) That a man has a certain reputation, is a fact. (80) A co­joint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles".

(81) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)"

and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. King­ Emperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 77 held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under:­ "Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......"

".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S. 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information. . . .. ...... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 78 place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."

"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.

This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"

(82) After considering the settled principles the Hon'ble Apex Court observed as under:

"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 79 not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 80 are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence. (83) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:

"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.

The essential ingredient of the Section is that the information given by the accused must led to the St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 81 discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence.

(84) In the said case the Hon'ble Supreme Court further went to explain that:

"..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place"

where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"

St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 82 (85) In the recent past the Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact" should be read with the definition of "fact" as contained in Section 3 of the Evidence Act which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be confirmatory in character guaranteeing the truth of the information given to which facts the police officer had no access earlier which also includes recovery of material object. The Hon'ble Court further observed that so much of the information as relates distinctly to the fact thereby discovered is admissible. (86) Applying the settled principles of law to the facts of the present case, it is evident that the place of incident was already within the knowledge of the police. However, it was not within the knowledge of the police that prior to the incident the accused had kept a watch in the area and had come to the area in a Santro Car. Further, it was already within the knowledge of police that a pistol was used in the offence (Raj Kumar was the person who had shown the pistol to victims) but the place where he had hidden the firearm was not in St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 83 anybody's knowledge except the accused. It was the accused Raj Kumar who pointed out to the police the place where he had thrown the said country made pistol and also got recovered the same from the bushes on the backside on the garden of Sai Baba Mandir, Mohan Nagar, Ghaziabad, near Hindon Bridge. What turns on the fact that accused Raj Kumar pointed out the place where he had thrown the country made pistol which place was not in the knowledge of the police and got recovered the country made pistol used in the present offence. The fact that Raj Kumar pointed out the said places and got recovered the Santro Car and country made pistol makes his disclosure statement admissible to that extent and is a strong pointer towards the guilt of accused Raj Kumar.

Forensic evidence:

(87) PW6 Sh. K.C. Varshney, Deputy Director, FSL, Rohini has proved that on 16.03.2012 he examined one country made pistol of .315 inch bore and one cartridge of 8 mm/.315 inch and having opined that the country made pistol Ex.F1 was in working order and test fire was conducted successfully and the cartridge Ex.A1 was live and was test fired through the country made pistol Ex.F1 and the country made pistol Ex.F1 was fire arm and the cartridge Ex.A1 was ammunition as defined in the Arms Act. He has proved his detailed report dated 06.07.2012 in this regard which is Ex.PW6/A. St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 84 (88) In view of the above, I hereby hold that the country made pistol got by the accused Raj Kumar is a firearm as defined under the Arms Act.

Sanction under Section 39 Arms Act:

(89) Addl. DCP (North­West) Sh. Rajeev Ranjan (PW9) has proved the sanction accorded by him under Section 39 of Arms Act to prosecute Raj Kumar S/o Shyam Lal. In his testimony before the Court he has proved that on 19.07.2012 the Investigating Officer of this case had placed before him the report U/s 173 Cr. P.C, statements of the prosecution witnesses U/s 161 Cr.P.C, seizure memos and the ballistic examination report dated 06.07.2012 which he has duly perused and after due application of mind and having been satisfied, pursuant to the power delegated to him vide order dated 09.11.2000 he accorded the sanction under Section 39 Arms Act to prosecute the accused Raj Kumar S/o Shyam Lal U/s 25 Arms Act which sanction is Ex.PW9/A. (90) The country made pistol Ex.P1 has been produced in the Court and the ballistic expert Sh. K.C. Varshney that it is a firearm and was in working order. In this background I hereby hold that the sanction under Section 39 of Arms Act to prosecute the accused Raj Kumar stands duly proved.

St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 85

Discrepancies and Contradictions:

(91) The Ld. Defence Counsels have pointed out certain contradictions and discrepancies in the testimonies of the various prosecution witnesses. It is pointed out that there are contradictions in the testimonies of the eye witnesses / victim with regard to the sequence of evidence which took place, the number of persons who had entered into their house, the role attributed to each of the accused and the nature of arm carried by which of the accused. It is also pointed out that in her testimony Mahima @ Maina has stated that her sister Neeraj was sleeping in the room upstairs but she (Neeraj) has neither been examined in the Court nor brought before this Court. Ld. Counsels have pointed out that even Smt. Lajwanti (PW4) did not corroborate this fact and she even did not affirm that her another grand­daughter was at home or that she came downstairs at the time of incident. It is further argued that according to Mahima @ Maina she had kicked and slapped the accused who had put a knife on her but Smt. Lajwanti is silent on this aspect. According to the Ld. Counsel, Mahima @ Maina (PW4) states that it was she who had opened the door whereas Smt. Lajwanti (PW4) stated that the assailants opened the door from inside and the complainant Baldev Ram has deposed that the door was opened from inside by his wife. It is further pointed out that Mahima @ Maina only deposed about two assailants who were carrying knives which they had put on her and her grand­mother but she has not stated that anyone of St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 86 them was carrying a pistol as stated by Smt. Lajwanti (PW5). It is also argued that the witness Mahima @ Maina has identified the accused Raj Kumar as the person who had put a knife on her and pressed her mouth on which she gave him a kick and slap whereas according to Baldev Ram the accused Raj Kumar was having a pistol in his hand at the time of the incident. Ld. Counsel has further pointed out that at one place Baldev Ram has stated that it was the accused Raj Kumar who had shown him the katta whereas in his earlier statement to the police he had stated that it was the 4th accused who have having a katta. Further, it is pointed out that there are contradictions the testimonies of the eye witnesses with regard to the presence of HC Rajesh and Ct. Dalip since Mahima @ Maina and Smt. Lajwanti have not stated anything about the presence of these two police officials at the spot prior to the arrival of local police. It is argued that the said contradictions are material which will fatal to the case of the prosecution.

(92) On the other hand the Ld. Addl. PP for the State has vehemently argued that the said contradictions are non material and would not be fatal to the case of the prosecution since the victims have not only identified the accused but have succinctly narrated the incident and corroborated each other on the same.

(93) I have considered the rival contentions. In the case of State of H.P. Vs. Lekhraj and another reported in JT 1999 (9) SC 43 it was observed by the Supreme Court of India as that:­ St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 87 "In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.........

.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial."

(94) Further, in the case of Surender Singh v. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under :­ "..... It is well­established principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity...."

(95) As far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish v.State of Madhya Pradesh reported in AIR 1981 SC 1167, the Supreme Court has held that When the discrepancies were comparatively of minor character and did not go to St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 88 the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also in the case of State of Rajasthan Vs. Kalki, reported in (1981) 2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.

(96) Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally non­discrepant. Courts should bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.

(97) The Hon'ble Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 89 judgment of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1), the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses.

(a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

(b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(c) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.

(d) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

(e) In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.

St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 90

(f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross­examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.

(98) Applying the settled principles of law to the facts of the present case it is evident that the complainant Baldev Ram is a senior citizen and his wife Smt. Lajwanti is an old lady. Lajwanti has explained that she had become extremely nervous at the time of the incident and naturally so. Any person in her place when suddenly confronted with armed intruders who caught hold of her young grand­ daughter would have been equally scared and nervous and over­taken by events which could not be contemplated or anticipated and which incident has an element of surprise and therefore her mental faculties cannot be expected to be attuned to absorb the details. This is also true for the witness Baldev Ram. He is an old man of 65 years and naturally St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 91 when he came back home and knocked the door he heard the voices "Chor Aa Gaye Hain" he could not have anticipated the occurrence and was taken by surprise when he saw the assailants / intruders coming out from his house one after the other. It is likely that all the three witnesses though wholly truthful have got confused with regard to who was holding what weapon and who come out of the house first. (99) Further, with regard to the contradictions in the testimonies of Baldev Ram, Lajwanti and Mahima @ Maina with regard to the sequence of events which took place in rapid succession, ordinarily the incident being unexpected and the sequence of events having taken place in a rapid succession in a short span of time, it is natural for the witnesses to have mixed up or confused when cross­examined on the same later on.

(100) Also, with regard to the discrepancies as pointed out by the Ld. Defence Counsel in the testimonies of Smt. Lajwanti and Mahima @ Maina are concerned, again as held by the Hon'ble Supreme Court in the case of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat (Supra) the same can be attributed to difference in perception and observation which may vary from one person to another. What Lajwanti has noticed, perhaps might have gone unnoticed by Mahima @ Maina while she was trying to resist the assailant who had held her and what object or movement was embossed in the mind of Mahima @ Maina, might have gone unnoticed by Lajwanti who as per her own St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 92 version was extremely nervous at that time.

(101) Further, in so far as the discrepancies in the testimony of Baldev Ram with regard to the assailant / intruder having a pistol, I may hold that before the Court Baldev Ram has specifically identified the accused Raj Kumar as the person who was having a pistol in his hand. Even otherwise whether it was the accused Raj Kumar who was holding a pistol and had shown the same to Baldev Ram or the 4th assailant becomes immaterial in view of the fact that three of the accused were carrying deadly weapons i.e. knives and the 4th assailant was having a pistol / desi katta. Therefore, under the given circumstances, the aforesaid aspect looses its relevance.

(102) All the witnesses being specific and consistent that four persons duly armed had entered the house and also with regard to the fact that they had actually caught hold of Lajwanti and Mahima @ Maina and restrained them from moving in any direction and also executed threats to them to handover their belongings and also the keys of almirah to them by using dangerous weapons, I hold that the contradictions and discrepancies are too immaterial and irrelevant. The evidence of the eye witnesses / victims regarding the commission of crime is most important. I do not find any force in the submission of the counsel for throwing out the case of the prosecution merely on the ground of certain discrepancies / contradictions in the deposition of various prosecution witnesses. I am of the considered view that such St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 93 discrepancies are bound to occur in the deposition of various witnesses being usual and natural and even otherwise as they are found to be formal in nature without striking at the root of the matter and the same cannot be treated as fatal for the prosecution.

FINAL CONCLUSIONS:

(103) In the case of Sharad Birdhichand Sarda ­vs­ State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre­requisites before conviction should be recorded, which are as under:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.

The circumstances concerned 'must or should' and not 'may be' established;

2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 94 (104) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. On the basis of the evidence on record the following facts stand established:

➢ That Baldev Ram is a retired Delhi Government Servant from LNJP Hospital and is residing at BK­1/187, Shalimar Bagh, Near Kela Godown, Delhi along with his family comprising of wife Lajwanti @ Laj, son, daughter in law and grand­daughters one of whom is Mahima @ Maina another eye witness to the incident. ➢ That Baldev Ram used to help his son Suresh in his shop of utensils which shop is situated at Adarsh Nagar. ➢ That on 5.1.2012 as usual Baldev Ram had gone to the shop along with his son at about 9:00 AM and Smt. Lajwanti along with their grand­daughters remained at home (the daughter in law having gone to her parental house).

➢ That while Smt. Lajwanti and Ms. Mahima @ Maina were present at home, at about 10:30 AM someone pressed the door bell of their house and the accused Rajesh who was having a torch in his hand, entered the house pretending himself to be the Meter Reader.

➢ That the accused Rajesh was then followed by three more persons who entered the house one by one and the accused pretended as if St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 95 he was reading the meter while the other persons (Raj Kumar, Vinod and Mahender) in the meantime came inside. ➢ That suddenly one of the accused Rajesh caught hold the hands of Smt. Lajwanti and then shut her mouth by pressing it with his hand and put a knife on her neck and gestured her to keep quiet. ➢ That another accused caught hold the hands of Ms. Mahima @ Maina and put a knife on her and pressed her mouth and gestured them to keep silent.

➢ That other assailants also took out the knives and pistol and asked the victims to handover their belongings.

➢ That there was a scramble in the house and two accused were trying to move up the staircase while two of them held on to the victims.

➢ That in the meanwhile there was a knocking on the door as the complainant Baldev Ram unexpectedly had come home. ➢ That on hearing the knocking and finding an opportunity Ms. Mahima @ Maina kicked the assailant (Raj Kumar) and also slapped him.

➢ That the accused / assailants shocked at the reaction of the victims and with the turn of events, started rushing out to save themselves for the fear of being caught.

➢ That the accused / assailants started to rush out from the house in which process Baldev Ram was pushed by the first person who St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 96 came out i.e. Rajesh and then also by second person pursuant to which he fell down while the third and fourth persons also followed them and rushed out.

➢ That while the three assailants managed to escape the accused Rajesh hid himself behind a van.

➢ That as soon as the alarm was raised by the victims, a large number of public persons gathered and noticed the accused Rajesh hiding and was apprehended and was immediately recognized and identified by first Baldev Ram and then by Smt. Lajwanti and Mahima on which he was apprehended. ➢ That a PCR a call was made and in the meanwhile HC Rajesh and Ct. Dalip who were passing through the area (being on patrolling duty) also reached the spot and apprehended Rajesh and information was given to the local police regarding the incident.

➢ That on checking the spot the monkey caps which the accused were wearing and the torch which the accused Rajesh was carrying, were lifted which have been duly identified by all the three victims in the Court.

➢ That the accused while running away from the spot also threw their monkey caps which were recovered.

➢ That on 8.2.2012 on the pointing out of accused Rajesh, the co­ accused Raj Kumar was arrested from near liquor vend Haiderpur.

St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 97 ➢ That pursuant to his arrest the accused Raj Kumar got recovered the Santro Car bearing No. DL­2CW­4374 which they had used in the commission of crime.

➢ That on 11.1.2012 the accused Raj Kumar got recovered a country made pistol from the bushes backside of the garden of Sai Baba Mandir, Mohan Nagar, Ghaziabad.

➢ That on the same day at about 4:30 PM the complainant Baldev Ram came at the Police Station and informed that two assailants were sitting near the railway line, Kela Godown on which the accused Mahender @ Munna and Vinod @ Ladoo @ Kalu were apprehended and arrested on the pointing out of the complainant. (105) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (106) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 98 witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by the circumstantial evidence on record and the witness of the prosecution have been able to built up a continuous link.

(107) In view of the above, I hereby hold that the prosecution has been able to prove and substantiate the allegations made against the accused Rajesh, Raj Kumar, Vinod @ Kalu and Mahender @ Munna of having hatched a criminal conspiracy to commit robbery at house bearing No.BK­1/187, Shalimar Bagh, Main Road, Kela Godown Road belonging to Baldev Ram; having committed house trespass at the abovesaid house having made preparation for causing hurt to family members of Baldev Ram for assaulting them or wrongful restrain them or for putting them in fear of hurt or of assault or of wrongful restrain and having committed robbery at the said house with Smt. Lajwanti and Ms. Mahima @ Maina duly armed with deadly weapons i.e. knives and pistol. Further, the accused Raj Kumar is also liable for using the country made pistol (by showing the same to the victim Baldev Ram) during the incident. Therefore, I hereby hold the accused Rajesh, Raj Kumar, Vinod and Mahender guilty for the offence under Section 452 r/w 120­B and 392, 397 r/w 120­B Indian Penal Code. Further, the St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 99 accused Raj Kumar is also held guilty of the offence under Section 25 of Arms Act (the offence under Section 27 of Arms Act being covered in the offence under Section 397 IPC). All the accused are accordingly convicted.

(108) Be listed for arguments on sentence on 15.2.2013. At this stage on request of the Ld. Amicus Curiae date is changed to 18.2.2013. The date of 15.2.2013 is hereby cancelled.

Announced in the open court                              (Dr. KAMINI LAU)
Dated: 12.2.2013                                       ASJ­II(NW)/ ROHINI




   




St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh                  Page No. 100
       IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
       JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI


Session Case No. 23/2012
Unique Case ID No. 02404R0068072012

State                       Vs.                (1)     Rajesh 
                                                       S/o Raj Singh
                                                       R/o Village Holambi Khurd,
                                                       PS Metro Vihar, Narela,
                                                       Delhi
                                                       (Convicted)

                                               (2)     Raj Kumar
                                                       S/o Shyam Lal
                                                       R/o Village Saro,
                                                       Distt. Etah, U.P.
                                                       (Convicted)

                                               (3)     Vinod Kumar @ Laddu @ Kalu
                                                       S/o Ghanshyam
                                                       R/o House No. 34/1, C­Block,
                                                       Shahbad Dairy, Delhi
                                                       (Convicted)

                                               (4)     Mahender Singh @ Munna
                                                       S/o Ram Mehar
                                                       R/o C­278, Old Shahbad Dairy,
                                                       Delhi.
                                                       (Convicted)


FIR No.:                                       05/2012
Police Station:                                Shalimar Bagh


St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh                          Page No. 101
 Under Sections:                                393/398/452/120­B IPC 
                                               & 27/54/59 of Arms Act

Date of Conviction:                            12.2.2013

Arguments concluded on:                        21.2.2013

Date of Sentence:                              23.2.2013


APPEARANCE:

Present:           Sh. Shiv Kumar Addl. Public Prosecutor for the State.

Convict Rajesh in Judicial Custody with Sh. Shiv Dhupia Advocate.

Convicts Raj Kumar, Vinod and Mahender are in Judicial Custody with Sh. Rajneesh Antil Advocate / Amicus Curiae.

ORDER ON SENTENCE:

As per allegations on or before 5.1.2012 all the accused namely Rajesh, Raj Kumar, Vinod and Mahender hatched a criminal conspiracy to commit an armed robbery pursuant to which on 5.1.2012 at 10:45 AM all the accused committed house trespass in House No. BK­1/187, Shalimar Bagh, Main Road, Kela Godown, Delhi (belonging to Baldev Ram) after being armed with deadly weapons i.e. knife and country made pistol and having made preparation for causing hurt to family members of Baldev Ram or assaulting them or wrongful restrain St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 102 them or putting them in fear of hurt or of assault. It is also alleged that all the four accused in pursuance of their criminal conspiracy attempted to commit robbery at the said house of Baldev Ram.

The complainant Baldev Ram, his wife Smt. Lajwanti and their grand­daughter Ms. Mahima @ Maina have appeared in the Court and have not only identified all the accused persons but also attributed specific roles to them. On the basis of the testimonies of the witnesses examined by the prosecution particularly Baldev Ram, his wife Smt. Lajwanti and their grand­daughter Ms. Mahima @ Maina and also on the basis of the other circumstantial evidence on record this Court vide its detail judgment dated 12.2.2013 has observed that Baldev Ram is a retired Delhi Government Servant from LNJP Hospital and is residing at BK­1/187, Shalimar Bagh, Near Kela Godown, Delhi along with his family comprising of wife Lajwanti @ Laj, son, daughter in law and grand­daughters one of whom is Mahima @ Maina another eye witness to the incident; that Baldev Ram used to help his son Suresh in his shop of utensils which shop is situated at Adarsh Nagar. It has further been observed that on 5.1.2012 as usual Baldev Ram had gone to the shop along with his son at about 9:00 AM and Smt. Lajwanti along with their grand­daughters remained at home (the daughter in law having gone to her parental house); that while Smt. Lajwanti and Ms. Mahima @ Maina were present at home, at about 10:30 AM someone pressed the door bell of their house and the accused Rajesh who was having a torch St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 103 in his hand, entered the house pretending himself to be the Meter Reader; that the accused Rajesh was then followed by three more persons who entered the house one by one and the accused pretended as if he was reading the meter while the other persons (Raj Kumar, Vinod and Mahender) in the meantime came inside; that suddenly one of the accused Rajesh caught hold the hands of Smt. Lajwanti and then shut her mouth by pressing it with his hand and put a knife on her neck and gestured her to keep quiet; that another accused caught hold the hands of Ms. Mahima @ Maina and put a knife on her and pressed her mouth and gestured them to keep silent; that other assailants also took out the knives and pistol and asked the victims to handover their belongings; that there was a scramble in the house and two accused were trying to move up the staircase while two of them held on to the victims; that in the meanwhile there was a knocking on the door as the complainant Baldev Ram unexpectedly had come home; that on hearing the knocking and finding an opportunity Ms. Mahima @ Maina kicked the assailant (Raj Kumar) and also slapped him; that the accused / assailants shocked at the reaction of the victims and with the turn of events, started rushing out to save themselves for the fear of being caught; that the accused / assailants started to rush out from the house in which process Baldev Ram was pushed by the first person who came out i.e. Rajesh and then also by second person pursuant to which he fell down while the third and fourth persons also followed them and rushed out; St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 104 that while the three assailants managed to escape the accused Rajesh hid himself behind a van; that as soon as the alarm was raised by the victims, a large number of public persons gathered and noticed the accused Rajesh hiding and was apprehended and was immediately recognized and identified by first Baldev Ram and then by Smt. Lajwanti and Mahima on which he was apprehended; that a PCR a call was made and in the meanwhile HC Rajesh and Ct. Dalip who were passing through the area (being on patrolling duty) also reached the spot and apprehended Rajesh and information was given to the local police regarding the incident; that on checking the spot the monkey caps which the accused were wearing and the torch which the accused Rajesh was carrying, were lifted which have been duly identified by all the three victims in the Court; that the accused while running away from the spot also threw their monkey caps which were recovered. It has also been established that that on 8.2.2012 on the pointing out of accused Rajesh, the co­accused Raj Kumar was arrested from near liquor vend Haiderpur; that pursuant to his arrest the accused Raj Kumar got recovered the Santro Car bearing No. DL­2CW­4374 which they had used in the commission of crime; that on 11.1.2012 the accused Raj Kumar got recovered a country made pistol from the bushes backside of the garden of Sai Baba Mandir, Mohan Nagar, Ghaziabad; that on the same day at about 4:30 PM the complainant Baldev Ram came at the Police Station and informed that two assailants were sitting near the St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 105 railway line, Kela Godown on which the accused Mahender @ Munna and Vinod @ Ladoo @ Kalu were apprehended and arrested on the pointing out of the complainant.

Therefore, it has been observed by this Court that the prosecution has been able to prove and substantiate the allegations made against the accused Rajesh, Raj Kumar, Vinod @ Kalu and Mahender @ Munna of having hatched a criminal conspiracy to commit robbery at house bearing No.BK­1/187, Shalimar Bagh, Main Road, Kela Godown Road belonging to Baldev Ram; having committed house trespass at the abovesaid house having made preparation for causing hurt to family members of Baldev Ram for assaulting them or wrongful restrain them or for putting them in fear of hurt or of assault or of wrongful restrain and having committed robbery at the said house with Smt. Lajwanti and Ms. Mahima @ Maina duly armed with deadly weapons i.e. knives and pistol. Further, the accused Raj Kumar is also liable for using the country made pistol (by showing the same to the victim Baldev Ram) during the incident. Hence, the accused Rajesh, Raj Kumar, Vinod and Mahender have been held guilty for the offence under Section 452 r/w 120­B and 392, 397 r/w 120­B Indian Penal Code. Further, the accused Raj Kumar has also been held guilty of the offence under Section 25 of Arms Act (the offence under Section 27 of Arms Act being covered in the offence under Section 397 IPC). All the accused have been accordingly convicted.

St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 106

Heard arguments on the point of sentence. The convict Rajesh is stated to be aged about 52 years having a family comprising of two married brothers, three married sisters, wife, one son and one daughter. He is 8th class pass and is a Driver by profession.

The convict Raj Kumar is stated to be aged about 50 years having a family comprising of five married brothers, two married sisters, wife, one son and two daughters. He is 7th class pass and is a Driver by profession.

The convict Mahender @ Munna is stated to be a young boy of 28 years having a family comprising of aged widow mother, one elder & one younger brother, two elder and one younger sister, wife, one son and two daughters. He is 8th class pass and is a Labour working in a Factory.

The convict Vinod @ Kalu is stated to be aged about 30 years having a family comprising of aged parents, four younger brothers, two married sisters, wife and two sons. He is 2nd class pass and is a Mason by profession.

Ld. Counsels for the convicts have prayed that a lenient view be taken against the convicts keeping in view their family background.

On the other hand the Ld. Addl. Public Prosecutor for the State has pointed out that the all the convicts are hardened and desperate criminals who are involved in large number of cases. He has St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 107 submitted that the convict Rajesh is involved in five other cases details of which are as under:

Sr. No.         FIR No.                Police Station         Under Sections
 1.          355/09                Burari                382/34 IPC
 2.          126/10                Burari                382/34 IPC
 3.          180/11                Nangloi               392/120­B IPC
 4.          270/90                S.P. Badli            379/411/34 IPC
 5.          226/11                Shalimar Bagh         420/34 IPC
 6.          189/11                Shalimar Bagh         420/34 IPC

He has further pointed out that the convict Raj Kumar is involved in the following cases:

Sr. No.         FIR No.               Police Station          Under Sections
1.           223/2012              Alipur                395/412/34 IPC
2.           478/2011              K.N. Katju Marg       457/380/411/34 IPC
3.           180/2010              Seemapuri             392/394/34 IPC
4.           34/2010               Special Cell          24/54/59 Arms Act
5.           436/2006              Kashmere Gate         398/34 IPC
6.           954/2006              South Rohini          25 Arms Act
7.           748/2005              Jahangir Puri         380/411/34 IPC
8.           750/2005              Jahangir Puri         160 IPC
9.           242/2004              Prashant Vihar        25 Arms Act
10.          12/2002               Jahangir Puri         411/34 IPC
11.          437/2001              Lahori Gate           379/411/34 IPC
12.          456/2001              Jahangir Puri         324/34 IPC
13.          594/2000              Model Town            379/411 IPC

St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh                         Page No. 108
 14.          32/1995               Jahangir Puri         324 IPC
15.          420/1994              Adarsh Nagar          302/394/397/120­B/34 IPC
16.          358/1986              Ashok Vihar           25 Arms Act
17.          302/1985              Adarsh Nagar          25 Arms Act
18.          250/1985              Adarsh Nagar          394/397/34 IPC

In so far as the convict Mahender @ Munna is concerned, he is involved in two other cases details of which are as under:

Sr. No.         FIR No.                Police Station           Under Sections
1.           478/11                K.N. Katju Marg        457/380/34 IPC
2.           71/2002               Bawana                 457/380/411/34 IPC

He has also pointed out that the convict Vinod @ Kalu is involved in the following cases:

Sr. No.         FIR No.              Police Station            Under Sections
1.           476/2006              S.P. Badli            380/411 IPC
2.           31/2012               K.N. Katju Marg       380/457 IPC
3.           791/2006              S.P. Badli            399/402   IPC   &   25/54/59 
                                                         Arms Act
4.           664/2006              Badli                 457/380 IPC
5.           478/2011              K.N. Katju Marg       457/380/34 IPC
6.           47/2010               Bawana                460 IPC
7.           81/2008               Kharkhoda             457/380 IPC
                                   (Sonipat)
8.           355/2005              Bawana                457/380/411/34 IPC
9.           144/2005              Bawana                25/54/59 Arms Act

St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh                          Page No. 109
 10.          378/2003              Bawana              394/397 IPC
11.          25/2002               Bawana              457/380/411/34 IPC
12.          123/2001              Bawana              308/34 IPC


                   Ld.   Addl.   PP   for   the   State   has   prayed   for   maximum 

punishment to the convicts keeping in view their criminal involvements.

I have considered the rival contentions and I may observe that law and order situation has been deteriorating in the country and has worsen in the recent past. Instances of persons getting involved in criminal activities of robbing innocent persons by putting them under threat of death, are also on rise. Trigger friendly criminals unhesitatingly and indiscriminately use dangerous firearms on helpless victims who may or not offer any resistance thereby spreading terror in the society and adversely affecting social order and the faith of people in the system.

The manner in which the convicts hatched a criminal conspiracy and tried to commit robbery in the house of the complainant in broad day light, reflect their scant respect for law. On their part the convicts made all attempts to succeed in their designs but it was on account of the brave resistance put­forth by the young girl Mahima @ Maina and sheer chance that Baldev Ram returned back home that ruined the plans of the convicts. There was no previous animosity between the convicts and the victims and the intent was solely monetary gain. Undue sympathy, under these circumstances, to impose St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 110 inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of this court to award a sentence having regard to the nature of the offence and the manner in which it was executed or committed. (Ref:

Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463).

The previous criminal involvements of the convict show that they are hardened criminals who are habituated to crime. No leniency can be shown to persons who have no respect for law. Anyone who does not hesitate to take the law into his hands for pure monetary reasons does not deserve any leniency and any indulgence by the court, under these circumstances, can be misplaced. I, therefore, award the following sentence to the convict Rajesh:

1. For the offence under Section 452 r/w 120­B Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Three (3) Years and fine to the tune of Rs.2,000/­. In default of payment of fine the convict shall further undergo Simple Imprisonment for One Week.

2. For the offence under Section 392 r/w 120­B Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Seven (7) Years and fine to the tune of Rs.5,000/­. In default of St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 111 payment of fine the convict shall further undergo Simple Imprisonment for Fifteen Days.

3. For the offence under Section 397 r/w 120­B Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Ten (10) years and fine to the tune of Rs.5,000/­. In default of payment of fine the convict shall further undergo Simple Imprisonment for Fifteen Days.

All the sentences shall run concurrently.

Further, I award the following sentence to the convict Raj Kumar:

1. For the offence under Section 452 r/w 120­B Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Three (3) Years and fine to the tune of Rs.2,000/­. In default of payment of fine the convict shall further undergo Simple Imprisonment for One Week.

2. For the offence under Section 392 r/w 120­B Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Seven (7) Years and fine to the tune of Rs.5,000/­. In default of payment of fine the convict shall further undergo Simple Imprisonment for Fifteen Days.

St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 112

3. For the offence under Section 397 r/w 120­B Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Ten (10) years and fine to the tune of Rs.5,000/­. In default of payment of fine the convict shall further undergo Simple Imprisonment for Fifteen Days.

4. For the offence under Section 25 of Arms Act the convict is sentenced to Rigorous Imprisonment for Two (2) years and fine to the tune of Rs.2,000/­. In default of payment of fine the convict shall further undergo Simple Imprisonment for One Week.

All the sentences shall run concurrently.

In so far as the convict Vinod @ Kalu is concerned, I award the following sentences to him:

1. For the offence under Section 452 r/w 120­B Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Three (3) Years and fine to the tune of Rs.2,000/­. In default of payment of fine the convict shall further undergo Simple Imprisonment for One Week.

2. For the offence under Section 392 r/w 120­B Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Seven (7) Years and fine to the tune of Rs.5,000/­. In default of St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 113 payment of fine the convict shall further undergo Simple Imprisonment for Fifteen Days.

3. For the offence under Section 397 r/w 120­B Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Ten (10) years and fine to the tune of Rs.5,000/­. In default of payment of fine the convict shall further undergo Simple Imprisonment for Fifteen Days.

All the sentences shall run concurrently.

Further, I award the following sentences to the convict Mahender @ Munna:

1. For the offence under Section 452 r/w 120­B Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Three (3) Years and fine to the tune of Rs.2,000/­. In default of payment of fine the convict shall further undergo Simple Imprisonment for One Week.

2. For the offence under Section 392 r/w 120­B Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Seven (7) Years and fine to the tune of Rs.5,000/­. In default of payment of fine the convict shall further undergo Simple Imprisonment for Fifteen Days.

3. For the offence under Section 397 r/w 120­B Indian Penal Code St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 114 the convict is sentenced to Rigorous Imprisonment for Ten (10) years and fine to the tune of Rs.5,000/­. In default of payment of fine the convict shall further undergo Simple Imprisonment for Fifteen Days.

All the sentences shall run concurrently.

Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period undergone by them during the trial.

The convicts are informed that they have has a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34­37, Lawyers Chamber Block, High Court of Delhi, New Delhi.

Copy of the judgment and order on sentence be given to the convicts free of costs and another be attached with their jail warrants.

Before ending, I shall be failing in my duty if I do not bring on record the valuable contribution made by the victims in the present case. "Witnesses" as Bentham has observed are the eyes and ears of justice and if the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed. Hence unless the witnesses come forward to inform the Court about the wrong which has been committed Justice cannot be done. Standing by Law fearlessly to ensure that the guilty or those who are on the wrong side of Law are St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh Page No. 115 brought to book, is not only a social and legal obligation of each individual but a part of our National Duty which the victims before this Court namely Baldev Ram, Smt. Lajwanti and Ms. Mahima @ Maina have conscientiously and effectively performed. The victims deserve to be commended and appreciated for the presence of mind and courage shown by them not only during the incident but also for taking pains to appear before the Court to effectively depose and inform the Court of the incident and also for fearlessly identifying the accused who are reported to be desperate criminals involved in many serious crimes for the last many years. Under the given circumstances when most of the victims reel under pressure and fear feeling intimidated, it is highly praiseworthy and laudable that the victims Baldev Ram, Smt. Lajwanti and Mahima @ Maina have boldly appeared in the Court and assisted this Court which is highly admirable.

File be consigned to Record Room.

Announced in the open court                                    (Dr. KAMINI LAU)
Dated: 23.2.2013                                              ASJ­II(NW)/ ROHINI




St. Vs. Rajesh Etc., FIR No. 05/12, PS Shalimar Bagh                          Page No. 116