Delhi District Court
State vs Beer Sain on 14 October, 2009
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IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 119/06
Date of Institution: 08/12/06
Arguments heard on:22/09/09 & 25/09/09
Date of Decision: 12/10/09
State
Versus
1. Beer Sain
S/o Sh. Hardayal Singh
R/o RZB-1560, Gali No.6,
Sagarpur, Delhi
2. Devender
S/o Ram Devi
R/o RZB-1560, Gali No.6,
Sagarpur, Delhi.
3. Hakim singh @ Raju
S/o Rajji
R/o Jhuggi No. F-226,
Mangol Puri, Delhi
4. Raj Kumar
S/o Banke Lal
R/o Amrit Dharam Kanta
Saraf Bazar, Meerut, U.P.
5. Hardayal Singh @ Ratan Singh (since expired)
S/o Inder Singh
R/o RZB-1560, Gali No.6,
Sagarpur, Delhi
FIR No. 368/98
PS - Shalimar Bagh
U/s. 392/342/506 of IPC
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JUDGMENT
The brief facts of the case are that on the statement of one Balraj Singh, this case was registered, who has stated that he resides with his family in village Mohanpura, PS Sadar, District Gaganagar, Rajasthan and used to drive a private taxi. On 08/06/98, he came to Delhi in his Commander jeep taxi with Sh. Kashmiri Lal, who was staying at the upper floor of A-6, Shalimar Bagh, J.D. Jewellers shop and he was sleeping in his taxi and at about 3.00 am night, he got up to urinate and after urinating, he saw that a Maruti Esteem Car was standing near the shop. He could not see anything inside the car because the windows were closed and there was no sufficient light. After urinating, when he came to his jeep, then security guard Daulat Singh, who was standing outside the shop asked him as to why he was not sleeping then he told that he got up to urinate. Meanwhile, one person from the said car came and asked him about the way to Pitampura on which he told that he was new in the city hence is not aware of the same. The guard came there and asked as to where he had to go and started telling him the way. In the meantime, two more -:3:- persons came from behind and asked the guard about drinking water and guard pointed out the tap on the other side of the road. During this period, one of those persons caught hold his neck and other two persons caught hold the gun of the guard and snatched the same. He and the guard were forced to sit on the back seat of the said car and two persons sat on their left and right side at the back seat. Those persons threatened them that if they would raise the alarm they will be killed. One person along with the driver went towards the shop. The noises of breaking the shutter was heard by the complainant & guard in the car. After about half an hour they both came and started the car and at the red light of Ashok vihar, he and guard were asked to got down and the gun of the guard was returned to him and accused persons asked them to go away. So they both came back and narrated the facts to PCR van which was passing through from the shop at that time. PCR van took the guard to hospital. This was recorded by the police.
On the statement of the Balraj Singh, SI Ravi Kant got registered the case u/s 392/342/365/411/34 IPC. During investigation, site plan was prepared and statement of -:4:- witnesses were recorded.
The Meerut police officials were searching some wanted criminals and they received the information about the above robbery committed within the area of PS Shalimar Bagh and also received the information that those accused persons were coming towards Meerut in Maruti Esteem car of coca cola colour bearing no. DL-6C-5434 to sell the jewellery and utensils in Meerut. So they reached near Delhi Chungi in front of Allahabad Bank and started searching for about Maruti Esteem car. At about 1.45 pm, this Maruti Esteem car came there and they gave signal to stop the car. The car was stopped by its driver. Two criminals in the car who were holding country made katta asked the police to run away from there otherwise they would be killed, but they all four persons with car were apprehended and they disclosed their names as Devender, Bir sain, Hakim and Hardayal. Besides the arms from the accused persons, one polythene was also recovered from accused Bir sain which was containing 5 gm charas along with 11 silver spoon, 5 big bowls, 10 small bowls, 5 photos, 17 coins of 10 gms, 7 pairs of anklets, 17 coins of 10 gms chutki weighing 300 gm, 4 jhunjhun small -:5:- and big umbrellas were recovered from the accused Bir Sain. From the possession of Hakim also one polythene bag was recovered containing several utensils, jewellery including 14 glasses, 4 religious articles, 8 bowls, 6 non bowls, 2 small plates, one singardan, one milk bottle, one small pot, coins of silver, 8 pairs of of anklets, silver chain etc. From the possession of accused Hardayal, one polythene from his right hand was recovered which was containing 12 glasses, 5 pairs of anklets, 9 bowls, 6 small bowls, one water bottle, 11 coins, 6 small and big plates, 7 idols and one umbrella.
During inquiry, accused also disclosed that they had robbed these articles on 11.06.98 from J.D. Jewellers and also disclosed that some of the articles had already been sold by them to one Raj Kumar jeweller.
9 silver coins, 3 small and big glasses, 10 bowls, 3 plates, one small plate, 4 silver spoon, umbrella, 9 lamps, idols, one sliver box containing one silver coin, 5 pairs of anklets, one Kanthi, one neck chain, one bracelet were recovered from accused persons and were sealed at Meerut after converting the same into parcel.
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Accused Raju was also arrested. Delhi police was informed about the arrest of the accused persons. Accused persons were arrested in this case. During investigation, accused Devender got recovered one iron rod from his house which was used in breaking the shutter and locks of the shop. Accused Devender also made disclosure statement. Accused Devender also pointed out the place where they committed robbery. Accused Hakim, Bir Sain and Devender refused to join the TIP. On completion of investigation, chargesheet was filed against accused Bir Sain, Devender, Hakim and Rajkumar and Hardayal u/s 392/352/411/34 IPC.
Vide order dated 14.10.03, an application u/s 323 Cr.PC of Ld APP for State was allowed as the facts of the case attracts the alleged commission of offence under section 397 of IPC also in addition to other offences. Hence the case was committed to the court of Sessions and received on 28.10.03.
Vide order dated 16.01.04, charge was framed u/s 397/34 IPC against accused Bir Sain, Hardayal, Hakim and Devender. Charge u/s 411 of IPC was also framed against accused Hardyal, Hakim, Raj Kumar and Bir Sain to which all -:7:- the accused persons pleaded not guilty and claimed trial.
To prove its case prosecution has examined 22 witnesses in total.
PW1 is Sh. K.N. Singh, finger print expert. He has proved his report Ex. PW1/A. PW2 is ASI Ranbir Singh. He recorded the FIR of this case.
PW3 is complainant Balraj. He has not identified the accused persons.
PW4 is Ct Deepak Kumar. He accompanied SI Suresh who took two sealed pullandas with the seal of UPP from the Mohrarir of PS Transort Nagar in this case.
PW5 is HC Nagender Singh. He was in the PCR van and removed the gunman of J.D. Jewellers to the hospital.
PW6 is Ct Om Parkash. He is the witness to the recovery of iron rod from the house of one accused Birsain.
PW7 is Ct Sandeep. He joined the investigation with other police officials and went PS Transport Nagar in Meerut and taken into possession two sealed pullandas in this case.
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PW8 is Ct Raghnath. He is the witness to the recovery of iron rod from the house of accused Devender.
PW9 is Parvesh Arora. He is owner of J.D. Jewellers.
PW10 is Daulat Singh. He was serving as gunman at J.D. Jewellers. He has not supported the case of the prosecution regarding the identification of the accused persons.
PW11 is Shyamlal. He has also not identified the accused persons.
PW12 is Inspector Manohar Singh. He collected the relevant papers from the PS Transport Nagar, Meerut and recorded the statement of UP police officials.
PW13 is Ct Het Ram. He joined the investigation of this case with the IO.
PW14 SI Ravi Kant is IO of the case. He got registered the FIR of the case.
PW15 is Dr. P.R. Oberoi. He has proved the MLC of Daulat Singh.
PW16 is SI Amleshwar Rai. He has formally arrested the accused Hakim Singh in this case and got -:9:- conducted the TIP of accused Hakim Singh but accused refused to join the TIP proceedings.
PW17 is SI Suresh Kumar. He collected the case property from PS Transport Nagar, Meerut. He arrested the accused Hardayal in this case. He also arrested the accused Raj Kumar in this case.
PW18 is SI Inder Lal. He arrested the accused Devender and Bir sain in this case. He also got conducted the TIP of both these accused persons but they both refused to join the TIP proceedings.
PW19 is Inspector Jagat Ram. He was posted at PS Transport Nagar, District Meerut. He conveyed the information of the arrest of the accused persons at PS Shalimar Bagh in writing.
PW20 is Station officer Sh. Rishi Ram. He was posted with UP police at the time of the apprehension of the accused persons.
PW21 is Sh. D.S. Sidhu Ex. Metropolitan Magistrate. Accused Hakim was produced before him for TIP but he refused to join the TIP. He recorded his statement. He also conducted the TIP of accused Devender and Bir Sain -:10:- also produced before him but they also refused to join the TIP.
PW22 is Sh. Bijender Kumar Juyal. He is the witness of the apprehension of the accused persons.
On completion of the prosecution evidence, statement of accused persons recorded. Accused persons have denied the case of the prosecution and has stated that they have been falsely implicated in this case and nothing was recovered from them or at their instance.
Accused Raj Kumar has stated that no recovery was ever effected from him and he does not know the other accused persons. He further stated that he was apprehended from his house and he has been falsely implicated in this case.
Accused Devender has stated that he was not present in Meerut at relevant time. He was forcibly taken from his residence and was falsely implicated in this case.
Accused Hakim has examined one DW Parmod in his defence. Accused Raj Kumar also examined one DW Jaipal Verma in his defence.
I have heard Ld APP for State and defence -:11:- counsel.
Ld defence counsel has pointed out that PW1 has not compared the finger prints of the accused persons as finger prints of the accused persons were not supplied to him by the IO. He has further contended that PW3 Balraj has not identified any of the accused persons. He has further contended that there is no list on record of the robbed articles. He has further contended that iron rod was produced in unsealed pullanda. He has further contended that Kashmiri Lal has not been examined and photographs also have not been placed on record. He has further contended that it is not known whether broken locks were sealed or not. Witness has contradicted whether it was Maruti Esteem or Tata Sumo car. The recovery of the jewellery and utensils articles is doubtful from the accused persons. There is not seizure memo of Esteem Car. Hence prosecution has not been able to prove its case in any manner. He has further requested that accused persons be acquitted.
On the other hand Ld APP has contended that recovery of stolen articles has been effected from the accused persons and the owner of the stolen articles has -:12:- identified the articles during the TIP. Accused persons have not claimed the ownership of stolen articles in any manner as the accused persons have been apprehended on the same night after the robbery. Hence the prosecution has been able to prove the offence against the accused beyond reasonable doubt. Accordingly they be convicted.
To prove the offence of robbery and kidnapping of Balraj and Daulat Singh, prosecution has examined PW3 Balraj Singh and PW10 Daulat Singh in this case. PW3 has stated that on 08/06/98, he had come to Delhi from Ganga Nagar as he was a driver and had come with some passengers and they were staying in the shop of a jeweller who was known to the passengers. He has further stated that on 11/06/98, he was sleeping in his car and at about 3.00 am night, when he got up for urinating, he saw one Esteem Car, parked behind his car. The gunman asked him whether he was not feeling sleepy, on which he told that he had got up for urinating. One man came from back side and asked him the way for going to Pritam Nagar. He came down from his car and the gunman also came there. At that time, three more persons came from their back side and caught hold of -:13:- him and the gunman. They took both of them and forced them to sit in the Esteem car. Someone looted the jewellery shop. They both were taken away from the spot in the car and were dropped after some distance. He came back and told the fact to passengers who had come with him. Thereafter, they were taken to police station and his statement was recorded.
PW3 has further stated that police has also obtained his signatures on certain documents which he could not read as he is illiterate. He has not identified those persons who had caught hold him and kidnapped him and further dropped him at some distance. He has resiled from his statement and has been cross examined by Ld APP. Even in the cross examination conducted by Ld APP, he has not identified those persons as accused persons in the court and has denied the suggestion that accused persons present in the court had abducted him or had looted the jewellery shop.
PW3 has admitted some facts in the cross examination conducted by Ld APP that two persons came from behind and asked gunman about drinking water. He has further admitted that gunman pointed towards tap across the -:14:- road to those persons. He has further admitted that one of them caught hold of his neck. He further admitted that other two persons overpowered the gun man and snatched his gun from him. He further admitted that they both were threatened to be killed by those persons. He has further admitted that the three persons along with the driver of the car went towards the jewellery shop and thereafter he heard the noise of shutter being broken. The witness has not been cross examined by Ld counsels for the accused persons.
PW10 Daulat Singh has stated that in the year 1998, he was serving as gunman in the jewellery shop of Mr. Arora. He has further stated that on the relevant day, he was on duty outside the shop and at about 4.30/5.00 am two persons came there. One of them came to him and asked the location of Sona jewellers and even then he remained there and in the meantime another person came and he demanded water from him, but he refused to serve the water to other person. Thereafter, that persons started moving towards the road and at that time, all of sudden someone came from behind and placed hands on his eyes and there was total darkness. His gun was also snatched. One handkerchief -:15:- was placed at his face and he became unconscious and when he regained his consciousness, he found himself in a Tata Sumo. At that time, driver of the relatives of Mr. Arora was sleeping in a vehicle in front of said jewellary shop. 5 persons were sitting in that Tata Sumo. Tata Sumo was parked in front of the above mentioned jewellery shop. He saw a person keeping watch taking his gun in front of the aforesaid shop. The person who was keeping watch fired two shots from his gun and then occupied a seat in the same Tata Sumo in which he was present. Thereafter the Tata Sumo was taken away and he was not permitted to lift his head as the persons siting in the Tata Sumo had placed two knives and another weapon like country made pistol towards him. On reaching the crossing of Ashok Vihar, he was pushed out of the vehicle by giving kick blows on his back and then the accused persons sped with the vehicles and at a distance had thrown his gun out of the vehicle. He reached that place and picked up his gun . No cartridge was thrown at the place where he was kicked out and there was not cartridge in the gun also when it was thrown. Thereafter, he reached at jewellery shop of Shri. Arora where police had also reached -:16:- there. He found that the shutter of the shop lying broken. Owner of the shop was present there who accused him of getting the shop robbed. He was taken to the hospital by the police. He has further stated that driver of the relatives of Sh. Arora was also in Tata Sumo. Similarly PW10 has also not identified the accused persons as the same persons who had kidnapped him and robbed the jewellery shop. He has also been cross examined by Ld APP. He has not supported the case of the prosecution regarding the identification of the accused persons as the same persons who had robbed the jewllery shop at that time.
PW11 is Shyamlal. He is brother of Bhupinder Dass Arora. He visited the jewellery shop on 10.06.98. He has stated that on that day, he stayed on the first floor of the said shop. On the night intervening 10/11.06.98, he stayed there with three other persons who accompanied him from Shri Ganga Nagar. He has further stated that at about 3/3.15, am he heard the noise as someone was breaking the shutters of the jewellery shop. He got up and also made other to get up. He and his companion Kashmiri Lal started coming downstairs, while they were still in the stairs, a person -:17:- standing on the ground floor aimed a gun at them and threatened them saying that they should run away or he would shoot them. So he and his companion Kashmiri Lal climbed upstairs. They closed the doors of the room where they were staying and he informed his brother on telephone. He has further stated that the person who aimed at them was having his face muffled and that is why he could not identify that person. His brother reached at the shop. Police also came there.PW11 has also not identified any of the accused persons as the same persons who had aimed gun on them on that day.
PW5 is HC Nagender Singh, who, on the intervening night of 10/11.06.98, was posted in PCR Van and at about 3.00 am, when he was going towards Shalimar Bagh, two men stopped them on the way and one of them disclosed his identity as being gunman of J.D. Jewellers and told that 4-5 persons came in a car at the shop and had left after looting and beating them. He further told that he received injuries and was in pain. He took him to HRH hospital in the Van and informed the control room. So PW5 has corroborated with PW3 and PW10 to the extent that both -:18:- were kidnapped by those persons who committed robbery in the J.D. Jewellers shop and threw them from the car at a distance. The only contradiction which has appeared in the testimonies of witnesses is that PW3 has stated about the Esteem car whereas PW10 has stated about Tata Sumo and PW5 has stated about the car as stated by PW10 to him.
FIR of this case was recorded by PW2 ASI Ranbir Singh . He has proved the copy of same as Ex.PW2/A. Finger prints which was taken during the investigation of this case was examined by PW1 Sh. K.N. Singh and he has given his report as Ex.PW1/A. PW13 Ct Het Ram and PW14 SI Ravi Kant are the witnesses to the investigation. PW14 has stated that on 11.06.98, he was posted at PS Shalimar Bagh and on receipt of DD no. 4A Ex. PW14/A, he along with Ct Het Ram reached at AB-6, JD Jewellers shop and met with the complainant Balraj. He recorded the statement of the Balraj and prepared the rukka Ex.PW14/B and handed over the same to the Ct Het Ram for getting the case registered. He also made the request for calling the crime team and dog squad at the spot. He then prepared the site plan Ex.PW14/C. Crime team also -:19:- reached at the spot. The crime team inspected the spot and gave a report Ex.PW3/A. He recorded the statement of other witnesses who were present in the shop. He also found the shutter of the shop broken and belongings were lying scattered inside the shop. He also came to know that Security Guard, Daulat Ram was removed to HRH hospital. So he reached there and collected the MLC of Daulat Ram and then again, he came back to the spot and recorded the statements of the other witnesses.
PW13 Ct Het Ram has been cross examined by Ld APP on some aspect. But PW13 has denied the suggestion that IO recorded his statement on 11.06.98. Ld defence counsel has contended that both PW13 and PW14 have contradicted each other. PW13 has stated entry was made regarding their departure from police station, but it was not signed. Whereas on the other hand PW14 has admitted in his cross examination that he did not make any departure entry in DD register as it was not necessary. Ld defence counsel has further contended that both the witnesses have admitted that they had refreshed their memories by going through the police file before deposing in the court. So both -:20:- these witnesses cannot be believed and relied upon in any manner.
The accused persons were apprehended by the police of Meerut. To prove this fact, prosecution has examined PW20 Station Offcer Sh. Rishi Ram Katheria and PW22 Bijender Kumar Juyal, DSP, Dehradun, Uttarakhand. On 12/06/98, PW22 was posted as Inspector Special Squad, Meerut. On that day, he along with SI Rishi Ram i.e. PW20, SI Sh. Arya and other constables was on Government vehicle and were present in Meerut in search of the accused persons. At about 12.30 pm, one secret informer informed that some accused persons were coming from Delhi to Meerut in a Maruti Esteem Vehicle no. DL-6C-5434 and were having in possession of illegal weapons and also jewellery which was looted by them from PS Shalimar Bagh, Delhi and they were going to sell the silver jewellery in the market of the Meerut. On this information, all the police officials took personal search of each other and ensure that all were not having any incriminating articles with them. Thereafter, they reached near Allahabad Bank and hidden the government vehicle towards the side of the road and started waiting for Maruti -:21:- Esteem. At about 01.45 pm, they saw on Maruti Esteem of Coca-cola colour coming towards the Meerut side. At the instance of the secret informer they gave a signal ot the Maruti Esteem bearing no. DL-6C-5434 to stop the vehicle. That Maruti Esteem stopped at their signal and when they reached near the Maruti Esteem, its occupants opened fire. They fired two shots, immediately they reached near the Maruti Esteem and overpowered the occupants. Bir Sain accused was found sitting by the side of the driver, whereas accused Hakim and Hardayal were found sitting on the rear seat. Personal search of all the accused were taken.
Accused Devender was found in possession of one country made pistol and 12" bore loaded with one empty whereas three live cartridges of same bore were recovered from his right side pocket of his pant.
Accused Bir Sain was found in possession of a polythene which led to recovery of silver jewellery, silver utensils like glass, spoons etc. and 500 gms Charas. Separate proceedings were conducted against Bir Sain accused in respect of 500 gms Charas.
Accused Hakim was found in possession of .315 -:22:- bore pistol contlaining an empty. Three live cartridges were recovered from the side pocket of his pant. From the polythene, which accused was holding in his right hand, silver utensils, silver coins and silver jewellery were recovered.
Accused Hardayal was found in possession of one polythene containing Silver Utensils, silver coins and silver jewllery. During interrogation it was revealed that accused persons had committed robbery at J.D. Jewellers, Shalimar Bagh, Delhi. Their disclosure statements were recorded. They further disclosed that they has sold some of the jewellery to one Saraf of Meerut. They also offered to get recovered the jewellery from the said jeweller of Meerut.
Recovered articles from the accused persons were sealed in the parcels with th seal of 'BK" and were seized and seizure memo was prepared by SI Rishi Ram Katheria on his dictation. Thereafter, the accused persons were taken to PS Railway Road and the case property was deposited with the MHCM. FIR was also got registered in this case. Esteem car was also seized. Certified copy of memos i.e. personal search, recovery of Maruti Esteem, weapons and Charas is Ex. PW20/A. Recovery of stolen -:23:- articles was also effected from Raj Kumar at the instance of the accused persons. The same were also turned into the parcel and was seized. Copy of the recovery memo Ex. PW20/B. The general diary was prepared regarding deposit of case property with the MHC(M). Certified copy of the contents of the Genral Diary are exhibited as Ex.PW22/A, Ex.PW22/D and Ex. PW20/E. PW22 has identified all the accused persons in Court. He has further identified the recovered articles produced by the owner Parvesh Arora during his examination from Serial no.1 to 36 which were recovered from the possession of accused persons.
PW20 SI Rishi Ram Katheria has deposed the same facts as of PW22 and has exhibited the proceedings, conducted interrogation of accused persons, prepared arrest memos, personal search memos Ex. PW20/B. Certified copies of FIR proved as Ex.PW20/C. General diary running in two sheets were proved as Ex.PW20/D and Ex.PW20/E. He has also identified the accused persons correctly in Court.
Ld defence counsel has contended that during the examination of PW20, Esteem Car was not produced. Ld Defence counsel has suggested to PW20 that accused -:24:- persons have acquitted in the said case which was got registered by the Meerut police. He has further contended that no driving licence was found from the possession of the accused Bir Sain at the time of his arrest so it cannot be said that he was driving the Maruti Esteem car as deposed by police officials. Ld defence counsel has further contended that no articles were recovered from the accused persons. He has further contended that PW20 had not handed over the seal to anyone else after using the same. From the deposition, it is clear that stolen articles was seized by the PW22 and not by PW20 so this fact is not of much relevancy in any manner. To my mind, if a person is not having any driving licence then it does not mean that he does not know driving a vehicle.
Ld defence counsel has further contended that document exhibited by both the witnesses are not certified copies of judicial record, hence it cannot be relied upon. It is not known whether copies of documents were supplied to Delhi Police before filing of that chargesheet or after filing of that Chargesheet. So this contention also has not force. There is no public witness to the recovery of proceedings nor -:25:- anyone was called. PW22 has stated that Station Officer is competent to attest the document of his police station. So this contention of the Ld defence counsel is not having much force to disbelieve the witness. PW22 has also stated in cross examination that he has seen the Maruti Esteem car in the court today, so this contention of Ld defence counsel is not forceful that Maruti Esteem Car was not brought during the evidence of both these witnesses.
To prove the ownership of recovered sealed articles, prosecution has examined PW9 Parvesh Arora. He has stated that in the intervening night of 10/11.06.98, at about 3.15 am, he received a telephone call from his relative kashimiri Lal who was staying at that time on the first floor of his shop. Sh. Kashmiri Lal, informed that he had heard noise of shutter being opened at down stairs and that there was some movement. So he along with his father reached at their shop and saw that shutter of his shop had been broken. Some police officials also reached there. On checking inside the shop, he found silver articles kept in the showcase were missing. These included utensils and jewelery and some silver coins, silver idols etc. The missing articles weighed -:26:- about 20 kg. His statement was recorded by the police. Thereafter, in the month of August and October, 1998, he had come to the Court and had identified the looted articles before the Court of Sh. D.S. Sidhu, the then Ld MM and took those articles on superdari. He had produced the articles as mentioned in his statement before the Court. He has been cross examined by Ld defence counsel wherein he had stated that he did not remember whether he had given the invoice of robbed articles to the IO during investigation. He has further deposed that they do not need licence from any Government Authority to run the business. During his cross examination this witness produced his I-card issued to him by Sarafa Association, Karol Bagh to prove his membership. Ld defence counsel has not objected to the non production of case property. Accused persons have not claimed ownership of the stolen articles recovered from them. More so this witness has identified the articles during the TIP conducted by Ld MM.
PW21 Sh. D.S. Sidhu, Ld MM has stated that on 17/02/99, he was posted as MM and was working as link MM of the court of Sh. Rajesh Kumar. He received the application for conducting TIP for accused Hakim Singh. But accused -:27:- Hakim Singh refused to join the TIP proceedings. His report is Ex.PW21/A. On 09/10/98, an application for conducting the TIP of the accused persons was marked to him which is Ex. PW21/D. He had fixed the date for TIP as 16.10.98. IO SI Suresh Kumar came to him and produced one plastic katta sealed with the seal of "SK" and also produced witness Parvesh Arora. He conducted the TIP of the articles. Articles were identified by the witness Parvesh Arora correctly. He prepared the TIP proceedings and same is Ex. PW21/E. On 01.12.99, an application for conducting TIP of accused Devender and Bir Sain was also moved before him. Both the accused produced before him on the same date. Accused Bir Sain refused to join the TIP. He recorded their proceedings which is Ex.PW21/J. Accused Devender also refused to join the proceedings. He recorded the proceedings vide Ex. PW21/L. So PW9 has also identified the stolen articles during the TIP of the case property.
On 13/06/98, PW14 SI Ravi Kant accompanied PW12 Inspector Manohar Singh who was the SHO of PS Shalimar Bagh and at that time SHO to Special squad, -:28:- Kesarganj, Meerut for arrest of accused persons as information was received that the accused persons were out to sell the stolen property of this case and that stolen property had been recovered by them. By the time they reached there, accused persons had been Sent to judicial custody. After they came back to Delhi, production warrants were got issued for production of the accused and thereafter they were arrested. PW12 Inspector Manohar Singh has stated that he obtained the copies of the disclosure statement of accused persons and recovery memos and recorded the statement of SHO in this respect.
On 13/07/98, investigation of this case was received by PW17 SI Suresh Kumar. He went to PS Transport Nagar, Meerut with PW4 Ct Deepak Kumar and PW7 Ct Sandeep and collected the case property and prepared seizure memo exhibited as Ex.PW4/A. He got issued production warrants of accused Hardayal and Raj Kumar. He has also deposited the case property with MHCM of PS Shalimar Bagh. Accused Harydayal (since expired) was produced before the court. He arrested him with the permission of the Court and obtained two days PC remand of -:29:- accused. On 07/11/98 accused Rajkumar was also produced before the Court on production warrant. He was also arrested and his two days PC remand was also obtained. Nothing was recovered, hence accused Rajkumar was Sent to JC. He also got conducted the TIP of case property from the then Ld MM,Dr. D.S. Sidhu. In the cross examination, he has denied that he did not place on record copy of any application seeking permission or copy of the permission. He has further admitted that he seized the case property at PS Transport Nagar, Meerut and made entry GD no.44 about receiving of the case property. He proved the copy of the same as PW17/A. PW6 is Ct Omparkash. On 02/0299, he was posted at PS Shalimar Bagh and joined the investigation of this case with SI Inder Singh and Ct Rang Nath. Accused Devender and Bir Sain were taken out from the lockup at about 8.00 a.m. Then they all went to the house of Bir Sain from where he got recovered one iron samble from behind a box under charpai in the first room of the house number 1560. The iron samble was seized vide memo Ex.PW6/A. Thereafter, they came to AB block, Shalimar Bagh where Bir -:30:- Sain pointed out the shop where the incident had taken place. Pointing out memo Ex.PW6/B was prepared in this regard. Thereafter, they came to police station and accused were locked in the lock up. He has identified the iron samble as Ex.P1 before the court. He has been cross examined by Ld APP on some aspect. He has further admitted that both the accused had gone with them and got recovered the iron rod and also made disclosure statement Ex. PW6/C. Similar is the deposition of PW8 Ct Rang Nath. He has deposed the same facts and identified the iron rod as Ex.P1.
PW18 is Inder Lal. He has also deposed the same facts and has stated that he recorded the disclosure statement of accused Bir Sain and Devender PW6/C and in pursuance of their disclosure statement they led police party to RZB-1560, Gali No.6, Sagarpuri, Delhi and got recovered one iron rod kept in a box under a cot and told that iron rod was used in breaking open the locks and shutter. The iron rod was taken into possession Ex.PW6/A. Thereafter, both the accuesd led the police party to the place of occurrence i.e. shop and pointed out the shop of J.D. Jeweller and pointing out memo in this respect is Ex. PW6/B. Thereafter, -:31:- both the accused were again then locked up. After completion of investigation, he filed the challan. He has also identified the iron rod as Ex.P1.
Ld defence counsel has contended that during the examination of PW6 Ct Omparkash, no particulars on the pullanda of the rod was found written except no.1856/99. He has further contended that PW6 has improved his statement and he has not stated to the IO that accused persons were taken from lockup at about 8.00 a.m. He is also confronted with the place of recovery of iron rod which is different from the place which has been stated by the witness before the court. Ld counsel has further pointed out that PW6 has stated that the list of seized articles by the police also was prepared and signatures of accused were taken on the same, but the said list is not on record. He has further contended that this witness has also admitted that he has refreshed him memory from police file before deposing before the court. So witness cannot be believed regarding the recovery of iron rod Ex.P1 on the pointing out of accused Bir Sain and Devender. Ld defence counsel has further contended that after the cross examination of PW8, iron rod was produced before the court -:32:- in unsealed condition. He has further contended that witness cannot be relied upon as he has failed to describe the construction of the house which shows that police party had not visited the house of the accused and recovery of iron rod is false and fabricated. He has also contended that list of articles seized by the IO was prepared, but the same is not on record which creates doubt on the deposition of witness as to whether any such iron rod was recovered from the house of accused Bir Sain on the pointing out of accused Bir Sain and Devender.
He has further contended that no public person was called nor signatures of any public person has been obtained on the document prepared in this respect. He has further contended during examination of PW18 SI Inder Lal, iron rod was produced before the Court without any seal but was having case particulars. This shows that the case property has been tampered by the MHC(M) because at the time of examination of PW6 there were no particulars of the case mentioned on the iron rod and twice it has been produced before the Court in an unsealed condition. He has further contended that PW18 SI Inder Lal has contradicted -:33:- with both these witnesses and has stated that he had not prepared any list of any incriminatory material separately except the recovery memo which shows that the police party never visited the house of accused Bir Sain nor any such iron rod was recovered on the pointing out of accused Bir Sain from his house and the same was planted upon the accused persons.
PW16 SI Amleshwar Rai was posted at PS Shalimar Bagh and on 17/02/99 he visited Tis Hazari Courts in connection with the formal arrest of Hakim Singh and he formally arrested the accused Hakim Singh. He also moved an application for TIP proceedings of accused Hakim Singh, but accused Hakim Singh refused to join the TIP proceedings. He also interrogated accused Hakim Singh outside the court and and accused also made his disclosure statement which is Ex.PW16/A. PW15 is Dr. P.R. Oberoi. He has deposed on behalf of Dr Subodh Kr. He has proved the MLC of Daulat Singh as Ex. PW15/A. In view of the above discussion and from the deposition of the prosecution witnesses, the prosecution has -:34:- been able to prove that shop of J.D. Jewellers was looted on 11.06.98 at about 3.05 am and silver articles were robbed, but prosecution has not been able to prove the identity of the persons who had robbed the shop as of accused persons.
PW3 Balraj, PW10 Daulat Singh and PW11 Shyam Lal have not identified before the Court, the accused persons as the persons who had robbed the shop of the J.D Jewellers on that day and at that time.
Prosecution has also not been able to connect the accused persons with the robbery as according to the report of PW1 Sh. K.N. Singh PW1/A, finger prints were not supplied by the IO to the expert for comparison with the finger prints which were lifted from the spot.
The prosecution has also not been able to prove/connect the recovery of the iron rod from the house of accused persons recovered on pointing out of accused Bir Sain and Devender to the extent that the same was used to broke open the shutter and locks of the shop of J.D. Jewellers. No expert opinion has been taken in this respect. Photographs have also not been placed/proved on record. Broken locks have not been produced during the examination -:35:- of the witnesses. Even from the cross of the witnesses in this respect, who have deposed about the recovery of iron rod on the pointing out of the accused Bir Sain and Devender on that day, have admitted that iron rod has been produced before the Court in unsealed condition. Accordingly prosecution has not been able to prove the offence u/s 397/34 of IPC against the accused persons in any manner. Accordingly accused Bir Sain, Hakim and Devender are acquitted from the offence punishable u/s 397/34 of IPC.
PW3 Balraj and PW10 Daulat Singh have not identified the accused persons as the same persons who had kidnapped both of them on that day at that time. Both witnesses also contradicted regarding the identity of the vehicle in which they were kidnapped as to whether it was esteem car or Tata Sumo. They both also contradicted each other whether any gun shots were fired or not. As the witness have not identified the accused persons as the same persons, hence prosecution has not been able to prove the offence u/s 365/34 of IPC against accused persons. Accordingly they are acquitted from the offence punishable u/s 365/34 of IPC.
-:36:-
The shop of J.D. Jewellers was robbed on 11/06/98 at about 3.05 am. According to the deposition of PW20 Sh. Rishi Ram Kahteria and PW22 Bijender Kr. Juyal, accused Hakim and Hardayal (since expired), Bir Sen and Devender were found sitting in coca-cola colour Esteem car. They were apprehended by the Meerut police.
Accused Bir Sain was found in possession of one polythene containing silver jewellery, silver utensils like glass, bowls etc. Accused Hakim was also found possessing one polythene containing silver coins, utensils, jewellery etc. Accused Hardayal died during the trial of the case.
These articles were sealed in pullanda and were seized by the Meerut Police. According to the Ex. PW20/A, the accused also led the police party to the house of one Raj Kumar, Jeweller to whom they sold the silver ornaments. These articles were recovered from the possession of accused Raj Kumar by the police party. These articles were also sealed in pullanda and were seized by the Meerut Police.
Thereafter Delhi Police was informed and this information was conveyed by PW19 Inspector Jagat Ram Joshi in writing to the police of PS Shalimar Bagh and the -:37:- same is PW19/A. According to the deposition of PW4 Ct Deepak Kr, PW7 Ct Sandeep with the IO, that the case property got transferred in sealed pullanda to Delhi. According to the deposition of PW21 Sh. D.S. Sidhy, the then Ld MM, he conducted the TIP of these articles and these were identified by PW9 Parvesh Arora being the owner of the same.
PW21 has not been cross examined by Ld defence counsel on any aspect that TIP was not conducted correctly and was not according to law. Accused have not claimed the ownership of the stolen articles in any manner. All the witnesses have corroborated each other and their deposition inspire confidence. They have completed the chain of evidence against the accused persons and have no reasons to depose falsely against the accused persons. From the deposition of PW9, prosecution has also been able to prove the ownership of the stolen articles of PW9.
PW20 Rishi Ram Katheria and PW22 Sh. B.K. Juyal have corroborated each other and have proved in their deposition that the articles, which were identified by the PW9 Parvesh Arora in his deposition, were recovered from the -:38:- possession of accused Bir Sain and Hakim at the spot on 12/06/98 when they were apprehended by the Meerut Police and further have proved that accused persons who have apprehended led the police party to Raj Kumar to whom they had sold the silver articles and these were recovered from him by the police on the pointing out of the accused persons, which were also taken into possession by the police. Accused Rajkumar has also not explained the possession of the stolen silver articles nor has claimed the ownership of the same in any way. Delhi Police was accordingly informed and sealed pullandas were transferred to Delhi. Nothing has been brought on record that the Meerut Police was having any reason to implicate the accused persons falsely in this case. PW22 Sh. B.K. Juyal has also identified the stolen articles which have been exhibited by him in his deposition.
The contention of Ld Defence counsel that accused persons have been acquitted in the case which was registered by the Meerut Police against them, is also not fruitful to the accused persons in any manner as neither the judgment has been placed on record nor for what reasons the accused persons were acquitted in that case if so in that -:39:- case, is before this court. Witnesses examined by the prosecution from the Meerut Police also have not admitted this fact that accused persons have been acquitted in the case which was got registered by the Meerut Police against the accused persons.
DW1 Pramod has been examined by accused Hakim, who has stated that he was lifted by the U.P. Police but the witness has not stated the date, month or year. Higher officials have not been informed at that time when accused allegedly was lifted by the U.P. Police, so this witness cannot be believed in any manner. More so no such suggestion has been given to the witnesses in their cross examination.
Similarly accused Raj Kumar has examined DW2 Jaipal Verma. He has stated that some years back some persons came to shop of Raj Kumar and asked them to accompany him with them. Rajkumar accompanied those persons outside the shop. He has further stated that later on they came to know, he was apprehended by the police in connection with some case. He has further stated that no recovery has been effected from the shop of accused.
DW2 has also stated that family of accused Raju -:40:- informed the police officials and made telegrams to police. No such telegram have been placed on record by accused Raj Kumar. Similarly no such suggestion has been given to the witness is that he was lifted from his house and nothing was recovered from him. Hence DW2 cannot be believed in any manner.
Accordingly, from the above discussion, prosecution has been able to prove offence punishable u/s 411of IPC against the accused Hakim, Raj Kumar and Bir Sain beyond reasonable doubt for which accused persons are held guilty and accordingly convicted for the offence punishable u/s 411 of IPC.
Announced in Open Court on dated 12/10/09 ( Virender Kr. Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi -:41:- IN THE COURT OF SH. VIRENDER KUMAR GOYAL ADDL SESSIONS JUDGE: FAST TRACK COURT ROHINI:DELHI SC No. 119/06 Date of conviction: 12/10/09 Date of order on sentence: 14/10/2009 State Versus
1. Beer Sain S/o Sh. Hardayal Singh R/o RZB-1560, Gali No.6, Sagarpur, Delhi
2. Hakim singh @ Raju S/o Rajji R/o Jhuggi No. F-226, Mangol Puri, Delhi
3. Raj Kumar S/o Banke Lal R/o Amrit Dharam Kanta Saraf Bazar, Meerut, U.P. FIR No. 368/98 PS - Shalimar Bagh U/s. 411 of IPC ORDER ON SENTENCE 14/10/2009 Present. Ld. Addl. PP for the state.
Convicts Hakim and Raj Kumar are present in person with counsel.
Convict Beer Sain is present from J.C. Heard on the point of sentence.
-:42:-Learned defence counsel submits that convict Beer Sain is in custody since the day of his arrest in this case and in between he remained on bail for some period. As on today, he remained in custody, two years and seven months and ten days in this case. He is not a previous convict. He has two children to support and he is the only earning member of his family. He is aged about 25 years.
Learned defence counsel further submits that convict Hakim Singh is aged about 48 years. His wife has recently died on 10/02/2009. He has five children to support and the youngest child is aged about 1½ years. He has three daughters of the marriageable age. He is a labourer. He remained in custody for four months and 18 days.
Learned defence counsel further submits that convict Raj Kumar is doing business of weighing of jewellery only. He has seven children. He has three daughters, who are still to be married. He is aged about 65 years. He is not a previous convict. learned defence counsel further submits that he is suffering from heart enlargement. He remained in custody for five days only.
On the other hand, learned Addl. PP has -:43:- submitted that considering the facts and nature of the case coupled with the value of the stolen articles recovered from the possession of the convicts, appropriate sentence be awarded.
As per the facts of the case about 20/22 kg of silver ornaments/articles were stolen and were recovered from the convicts. Considering the nature and gravity of the offence coupled with the value of the stolen silver articles and also considering the facts and family circumstances of all the convicts, sentence of two years S.I. is imposed upon all the convicts with fine of Rs. 5000/- (rupees five thousand only) each and in default of payment of fine, they shall further undergo simple imprisonment for a period of six months each for the offence U/s. 411 IPC.
Fine not deposited.
Benefit of provision of Section 428 CrPC be given to each of the convict.
All the convicts are remanded to serve the sentence.
A copy of this order be also given to the convicts free of cost.
-:44:-
Case property if any be destroyed in accordance with rules on expiry of period of appeal/revision, if none is preferred or subject to decision thereof. File be consigned to record room.
Announced in Open Court (Virender Kumar Goyal) on 14th of October, 2009 Additional Sessions Judge Fast Track Court Rohini : Delhi