Delhi District Court
Sc No. 58038/16 Fir No. 391/12 Ps. Narela ... vs . Rajnish Kumar & Ors. Page No. 1 Of 32 on 8 February, 2018
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IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
STATE CASE No........................................... 58038/16
FIR No. 391/12
PS Narela
U/s: 395/397/412 IPC
State
Versus
1.Rajnish Kumar S/o. Ramender Prakash R/o. Vill. Paliya Kalan Dist. Lakhmipur Kheri, (U.P.)
2. Ravi S/o. Bed Prakash R/o. Vill. Povaya, PS Povaya Dist. Sehjanpur, (U.P.)
3. Salim S/o. Murtza R/o. Walahu Wali Masjid Purana Baghpat, (U.P.) (At present H. No. 20, E20, Gali No. 2, 5th Pusta, Sonia Vihar Karawal Nagar, North East Delhi Delhi94)
4. Sumit @ Bangali S/o. Mahipal R/o. Vill. Grash More PS Nagar Gatta, PO Alipur Dist. Jalpaigudi (W.B.) SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 1 of 32 -2-
5. Ganga Ram @ Ganga Parsad @ Anand S/o. Mohan Lal R/o. Village Povaya, District Shahjahanpur, (U.P.) (At present R/o. Vill. Sikhrana, PP Balram Pur, PS Puran Pur Distt. Pilibhit, (U.P.) Date of institution : 26.10.2012 Judgment reserved on : 31.01.2018 Judgment delivered on: 08.02.2018 ORDER/JUDGMENT: Accused persons namely Ravi, Salim, Ganga Ram @ Ganga Prasad and Sumit @ Bengali are acquitted of the offence(s) u/S. 395 & 395 r/w 397 IPC.
Accused Rajnish Kumar is acquitted of the offence(s) u/S. 395 & 395 r/w 397 & 412 IPC.
J U D G M E N T
1. Brief facts, as stated in the charge sheet are that on 27.07.2012 SI Pappu Lal received a DD No. 6B, dated 27.07.2012 which was an information that in factory no. 1464, H Block, DSIDC, Bhorgarh, Narela, some persons had intruded into the factory. The said information was passed on to SI Pappu Lal Meena by telephone about above DD, who reached the said factory premises, where he was informed that the injured had been shifted to SRHC Hospital, Narela. The other injured Purshottam was found in the factory. The blood was lying in the office and on the upper floor, the grill of the room and latch was found broken. Thereafter, the aforesaid SI after SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 2 of 32 -3- leaving Ct. Manoj at the spot, reached the above hospital and obtained the MLC of injured Inshwar Singh, who had been admitted into the hospital with the history of physical assault by unknown persons who made following statement to SI P. L. Meena :
"That he was working in factory no. H1464, DSIDC Narela for the last two years as a guard and his real brother Purshottam was also working in the same factory as a guard, Purshottam was working in the day shift, whereas he was working in the night shift. That he comes for work at 7:00 pm and leaves at 7:00 am in the morning and Purshottam usually stays in the factory in the night time.
On 27.07.2012, he was sitting in the office of his factory, at around 3:00 am, some persons intruded into the factory having dandas, sariyas, who started beating him immediately and tied his hand with the cloth from behind and put him into a bathroom. After 1015 minutes, they brought his brother Purshottam who was sleeping on the above floor and they snatched their two mobile phones, Rs. 2,500/, thereafter, there was a noise from the gate of the factory and due to this all these persons ran away after leaving them. They also took away their motorcycle bearing no. DL8SAG5130 Splender. He called the police after taking the mobile phone from co worker. Police came to the spot and took him to SRHC SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 3 of 32 -4- Hospital however, his brother remained in the factory as there was nobody in the factory."
2. SI P. L. Meena prepared a rukka and got the present FIR registered through Ct. Manoj u/s 394/397/34 IPC.
3. Thereafter, the IO prepared the site plan at the instance of the complainant. The crime team had inspected the spot and took the photographs and also lifted the chance prints. The injured Purshottam was also medically examined. The relevant exhibits were lifted from the spot. The broken / cut Harrison Lock which was lying near the gate was also seized. The blood stained cloths of the injured persons were also seized. From the first floor of the factory, one 'lohey ki kati hui jali' was also seized. Thereafter, Section 395 IPC was also added. The injured Purshottam also stated that one Lemon phone which his friend Rajpal Singh had given him for repairing was also missing.
4. On 04.08.2012, on the information of the secret informer, IO arrested accused Rahul @ Ali and accused Rajnish Kumar along with the stolen motorcycle DL8SAG5130 Splender. They disclosed in their disclosure statement that they had committed the dacoity in present case along with their companions Ravi, Ganga Prasad, Santosh, Monu @ Totla, Bengali, Sunil @ Kala and two other friends of Monu.
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5. During investigations, from the room of Rahul @ Ravi, the mobile phone looted from the room of Purshottam belonging to Rajpal, was recovered.
On 04.08.2012, the accused Salim was arrested in this case at the instance of accused Rahul @ Ali and he got recovered one rod used in the above incident of dacoity. Thereafter, on 04.08.2012 accused Ravi was also arrested at the instance of coaccused Rajnish and at whose instance another rod used in the above incident was got recovered.
6. Accused Rahul @ Ali, Salim, Rajnish, Ravi were produced for TIP in the concerned court. However, they refused to undergo TIP. However, accused persons Ganga Prasad, Monu, Salim @ Kala and Santosh could not be arrested. On 07.08.2012, accused Rahul @ Ali, Salim, Rajnish, Ravi were identified by both the injured persons as the persons who had committed dacoity. The injured persons also stated that at the time of the incident, accused Rahul @ Ali, Ravi and Salim were all having iron rods and they had beaten up the complainant and had also tied him up. After 1015 minutes, thereafter accused Rajnish along with his companies brought down his brother Purshottam downstairs. The injured Purshottam stated in his statement that Rajnish along with his other companions came in his room, at that time he was having iron cutter in his hand, with which he struck on his head and thereafter he was brought down.
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7. On 10.08.2012 another accused Sumit @ Bengali was arrested at the information of secret informer. The danda used by him could not be recovered. Thereafter, on 18.08.2012 the accused Sumit @ Bengali also refused to undergo TIP proceedings. Thereafter, on 18.08.2012, during the police custody remand, the said accused Sumit @ Bengali was identified by both the injured persons and Purshottam, who further stated that he was the person who had brought him downstairs along with his coaccused persons and had hit him with the danda.
8. Thereafter, on 03.09.2012 the TIP of the case property i.e. mobile was got done qua the witness Rajpal Singh.
9. The accused persons Ganga Prasad, Sunil @ Kala, Monu and Santosh could not be apprehended and proclamation(s) u/S. 82,83 CrPC were obtained against them and it was stated that a supplementary charge sheet will be filed against them as and when they will be arrested. The chance prints lifted from the spot along with the finger prints of the accused persons were sent to Finger Print Bureau for comparison on 07.09.2012. The relevant exhibits were also sent to FSL for forensic evaluation after completion of investigations, a charge sheet u/S. 394/395/397/412/34 IPC was filed against accused Rajnish and u/S. 394/395/397/34 IPC against accused Salim, Ravi and Sumit @ Bengali.
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10. On committal of the case to the Court of Sessions, vide order dated 22.12.2012, charge(s) u/s 395 r/w 397 IPC were framed against accused persons namely Rajnish Kumar, Ravi, Salim and Sumit @ Bengali, whereas a separate charge u/S. 412 IPC was framed against accused Rajnish. After filing of supplementary charge sheet, vide order dated 22.03.2013, charge(s) u/s 395 r/w 397 IPC was also framed against accused Ganga Ram @ Ganga Prasad. Accordingly, formal charge(s) for the said offence(s) were framed on the said dates to which the accused persons pleaded not guilty and claimed trial.
11. Thereafter, prosecution in support of its case has examined 29 witnesses :
a) PW1 is Ishwar, complainant / injured, who has deposed about the date, time and manner of the incident dated 27.07.2012 as well as the identification of the accused persons. He has proved his complaint Ex. PW1/A given to the police. He has also proved the seizure of his blood stained clothes vide memos Ex. PW1/B and Ex. PW1/C. He has also correctly identified the case property Ex. P1 to P6 in the court.
b) PW2 is Purshottam, another victim, who has also deposed on the same lines as has been deposed by PW1. He has also proved the seizure of electric wire by the police vide memo Ex. PW2/B. He has also correctly identified the case SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 7 of 32 -8- property in the court.
c) PW3 is Ct. Manish, photographer who took photographs from different angle of the spot and proved the same in the court as Ex. PW3/A1 to A16 and the negatives as Ex. PW3/B1 to B17.
d) PW4 is Ct. Ajay, who was called by SI Mahavir Singh at the spot on 27.07.2012. He took the injured Purshottam to SRHC Hospital for medical examination.
e) PW5 is Ct. Deepak, Finger Print Proficient, Crime Team, who deposed that on 27.07.2012 they developed five chance prints from the table lying in the office on the ground floor at the spot and same were sent to Finger Print Bureau subsequently.
f) PW6 is Ratan Lal Gupta, who was running the factory in question and who was informed about the incident by his supervisor Premvir Singh.
g) PW7 is Surender Singh, who was working as Foreman in factory no. H1465, DSIDC Narela. He deposed that he provided his mobile phone no. 9990645845 to Ishwar and Purshottam to make call to the police at 100 number.
h) PW8 is Premvir Singh, another Foreman working in factory no. H1465, DSIDC, Narela. He deposed regarding seizure of blood from the spot vide memo Ex. PW8/A, as also seizure of grill vide memo Ex. PW8/B and cut lock vide memo SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 8 of 32 -9- Ex. PW8/C.
i) PW9 is Inspector Anil Kumar, Incharge, Mobile Crime Team, who had visited the spot on the day of incident and after inspecting the same, he had given his report and proved the same Ex. PW9/A.
j) PW10 is Ct. Samunder Singh, who had joined the investigations on 04.08.2012 along with SI Mahavir, Ct. Ravinder, Ct. Ajay and Ct. Gajender. He has proved the arrest memo Ex. PW10/A, personal search memo Ex. PW10/B and disclosure statement Ex. PW10/C qua accused Rajnish. He has also proved the seizure memo of motorcycle no. DL 8S6891 Ex. PW10/D. He has also proved the arrest memo Ex. PW10/F and personal search memo Ex. PW10/G of accused Salim. He has further proved the arrest memo Ex. PW10/H and personal search memo Ex. PW10J of accused Rajnish.
k) PW11 is Rajpal, who had identified his mobile during the TIP proceedings Ex. PW11/A before Ld. MM.
l) PW12 is Ct. Satbir, who took the injured persons Purshottam and Ishwar to SRHC Hospital. He has also proved the seizure memos Ex. PW12/A and Ex. PW12/B regarding seizure of blood sample of injured Purshottam and Ishwar respectively.
m) PW13 is HC Jasbir Singh, to whom six pullandas and SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 9 of 32 -10- two sample seals were handed over vide RC No. 180/21/12 and three pullandas vide RC No. 181/21/12 for depositing the same in FSL.
n) PW14 is Ct. Pradeep Kumar, DD Writer, who had recorded DD No. 6B, dated 27.07.2012, who proved the same vide Ex. PW14/A.
o) PW15 is HC Rajesh, MHC(M), with whom the case properties of this case were deposited by the IO and he had made relevant entries to that effect and had also sent them to FSL vide Ex. PW15/A to Ex. PW15/G.
p) PW16 is ASI Naresh Kumar, Duty Officer, who had registered the FIR Ex. PW16/A on the basis of rukka sent by SI P. L. Meena through Ct. Manoj. He has also proved the endorsement Ex. PW16/B made by him on the rukka and also the certificate u/S. 65B of Indian Evidence Act vide Ex. PW16/C.
q) PW17 is Dr. Rajesh Kumar, CMO, SRHC Hospital who has proved the MLC of injured Purshottam as Ex. PW17/A. He had opined the nature of injuries as simple blunt.
r) PW18 is Ms. Meenu Kaushik, Ld. MM, Rohini Courts, who has proved the TIP proceedings conducted by her vide Ex. PW18/A to Ex. PW18/E.
s) PW19 is Dr. Manoj, Medical Officer, SRHC Hospital, who has proved the MLCs, dated 27.07.2012 and 03.09.2012 of SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 10 of 32 -11- injured Ishwar vide Ex. PW19/A and Ex. PW19/B.
t) PW20 is Pramod Kumar, machine operator and helper in factory no. H1482, DSIDC, Narela. He has deposed that on the fateful night at around 3:43 am, he opened the gate of the factory and found that the guards of the factory H1464 were screaming that theft had taken place and they were asking for phone, so that they could contact the owner of their factory.
u) PW21 is Sh. Chanderjit Singh, Ld. MM, who has deposed regarding TIP proceedings conducted by him qua accused Ganga Prasad @ Anand vide Ex. PW21/A and Ex. PW21/B and qua accused Rahul @ Ali, Salim, Ravi and Rajnish Kumar vide Ex. PW21/C to Ex. PW21/G.
v) PW22 is Anil Kumar, who deposed that he was registered owner of motorcycle no. DL8SAG5130 and got the same released on superdari vide superdarinama Ex. PW22/A. w) PW23 is Ct. Manoj, who had joined the investigations along with SI P. L. Meena on the intervening night of 26/27.07.2012. He has deposed about the investigations conducted by the IO at the spot.
x) PW24 is SI P. L. Meena, initial IO in this case, who has deposed about the investigations conducted by him at the spot. He has proved the rukka Ex. PW24/A prepared by him on the basis of complaint Ex. PW1/A of Ishwar Singh. y) PW25 is Inspector Mahavir Singh, 2 nd IO in this case, to SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 11 of 32 -12- whom the further investigations of this case were handed over after registration of the case FIR, whereafter he reached the spot and conducted further investigations. He has proved the site plan Ex. PW25/A, his application Ex. PW25/B for providing copy of TIP proceedings and other memos on the record. z) PW26 is Ms. Sunita Gupta, Senior Scientific Officer, Biology, FSL, who has proved her report regarding the exhibits Ex. PW15/H and the serological report Ex. PW15/J. a1) PW27 is Sh. Sunil Kumar, Ld. JSCC/Addl. Sr. Civil Judge, Gudn. Judge, North, Rohini, who has deposed regarding the TIP proceedings conducted by him qua accused Ganga Prasad @ Anand vide Ex. PW27/A to Ex. PW27/D. b1) PW28 is Parshuram Singh, Assistant Director (Physics) FSL, Rohini, who has proved his report regarding three sealed parcel received by him vide Ex. PW15/K. c1) PW29 is Retired ASI Rajender, who had joined the investigations in this case along with IO SI Mahavir Singh on 22.12.2012. He has proved the arrest memo Ex. PW25/D of accused Ganga Prasad and also recording of his disclosure statement Ex. PW25/E.
12. Statement of all the accused persons u/S 313 Cr.P.C. were recorded separately, in which the entire incriminating evidence appearing against them was put to them, in which the defence of all the SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 12 of 32 -13- accused persons was that they had been falsely implicated in this case. They also stated that the entire evidence appearing against them was incorrect. However, they chose not to lead evidence in their defence.
13. I have heard Ms. Neelam Singh, Ld. Counsel / DLSA for accused persons namely Sumit @ Bengali, Rajnish Kumar and Ravi, Sh. Yashvir Singh, Ld. Amicus for accused Ganga Ram, Sh. Sunil Ojha, Ld. Counsel for accused Salim and Sh. V. K. Negi. Ld. Addl. PP for the State.
14. The Ld. Addl. PP for the State has argued that prosecution has been able to prove its case against all the accused persons, as PW1 Ishwar, complainant / injured and PW2 Purshottam have totally supported the prosecution story regarding the time, place and manner of the incident as well as identity of accused persons. He further submits that recoveries of weapons have been duly proved to have been recovered from possession of accused persons. He has also argued that from the testimonies of the prosecution witnesses, it has been proved that accused persons had used deadly weapons while committing dacoity of three mobile phones, currency amount of Rs. 2,500/ and motorcycle no. DL8SAG5130 at factory no. 1464, DSIDC, Narela. Therefore, they all are liable to be convicted.
15. On the other hand, Ld. DLSA Counsel Ms. Neelam Singh for SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 13 of 32 -14- accused Sumit @ Bengali, Rajnish Kumar and Ravi as well as Sh. Yashvir Singh, Ld. Amicus for accused Ganga Ram and Ld. Counsel Sh. Sunil Ojha for accused Salim have argued that as per the prosecution case, no common intention of the accused persons has been proved as no connection between the accused person has been proved on the record. It is also stated that no call details or the cell locations of the mobile phone of the accused or the complainant has been proved on the record to show that the PW1 and PW2 and the accused persons were indeed present at the spot at the time of the incident.
It is also stated that the relevant case properties were not sent to FSL for forensic evaluation and were planted upon accused persons. It is also stated that the chance prints were lifted from the spot, but the same did not match with any of the accused persons facing trial before this court. It is also stated that all the accused persons were shown to the witnesses in the police station and in these circumstances the accused persons refused to undergo TIP. As there was no purpose of TIP as the accused persons had already been shown to the witnesses during the investigations. It is also stated that the incident took place as per the prosecution story at about 3:00 am in the night. The prosecution has failed to prove that there was sufficient light available at the spot, whereby PW1 and PW2 could clearly see the accused persons.
It is also stated that no description of any of the accused persons had been mentioned in the complaint or in the statements of PW1 and SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 14 of 32 -15- PW2, therefore, all the accused persons were falsely implicated in the present case after showing them in the police station. It is also stated that the alleged recovery of iron rod and cutter has been planted upon the accused persons as well as the recovery of the motorcycle belonging to the complainant party.
It is stated that no public witnesses were joined in any of the recovery proceedings despite their availability. In the absence of independent witness being joined in the said recovery proceedings it creates doubt on the prosecution story. It is also argued that there are material improvements/contradictions in the testimonies of PW1 and PW2, which shows that they are planted witnesses.
It is also argued that as per owner of the factory PW6 and PW1 and PW2 nothing was looted from the factory, as no list of the looted articles was provided. It is also argued that costly copper wire bundles were lying in the said factory, yet they were not looted, which also casts doubt on the prosecution story. It is also argued that the accused Ganga Ram was not even identified by the complainant before Ld. MM. In these facts and circumstances, it is argued that there are lot of doubts in the prosecution story, which makes it highly improbable and the chances of false implication of the accused persons cannot be ruled out.
16. Ld. Counsel for accused Salim has relied upon the following judgments in support of his contentions; 1. 1988(2) RCR 421 (Delhi) SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 15 of 32 -16- Pawan Kumar Vs. Delhi Administration, 2. 1988 RCR 409 "Pradeep Vs. State of Haryana", 3. 1992(3) RCR 425 (P&H High Court Double Bench) and 4. Jagdish Raj Jaggi Vs. State, 1987(2) RCR (1) Delhi.
17. I have gone through the rival contentions.
PW1 complainant Ishwar in his testimonial deposition in the court has deposed as under:
"I was working as a watchman in factory No. H1464, DSIDC Narela, Delhi since 2 years. At the time of incident, I and my brother Purshottam were working in the said factory. Purshottam is my real brother. He was also working as a watchman in the abovesaid factory. My brother Purshottam was working in day shift and I was working in the night shift. My duty hours were from 7:00 pm to 7:00 am. My brother Purshottam used to remain in the factory in night also. On 27.07.2012, at about 3:00 am, I was sitting in the office of the factory situated at the ground floor. In the meanwhile, four persons entered in the office and they were armed with saria (iron rod) and dandas and on entering in the office, they immediately started beating me with the rods and dandas. They also tied my hands from behind and put me in the bathroom. After putting the latches, the said persons went upwards where my brother Purshottam was present. After about 10 minutes, I heard the cries of my brother Purshottam and they brought my brother Purshottam on the ground floor while giving beatings to him. The said persons also tied the hands of my brother Purshottam and they covered his face and put him in the same bathroom in which I was confined after opening the latches. When the four accused persons were giving beatings to me and were tying my hands, at that time, 56 more persons also entered in the SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 16 of 32 -17- office of the factory and they also gave beatings to me. There was total 10 accused persons who gave beatings to me and my brother Purshottam. The accused persons robbed my mobile phone and currency amount of Rs.2500/ (which I had received as advance from my office), from my possession. The accused persons also robbed two mobile phones of my brother Purshottam (one was in working condition and another was not working). When the accused persons put my brother Purshottam in the bathroom, in the meantime, someone opened the door of the factory situated in front of our factory and on hearing the sound of opening of the door, the abovesaid 10 accused persons fled away and while fleeing away, they also took away my motorcycle having registration no. DL8SAG5130 make Splendour. When the accused persons fled away from our factory, then somehow, I managed to open my hands and thereafter, I also opened the hands of my brother Purshottam and after obtaining the mobile phone from the worker of the adjacent factory, I made a call at 100 number. Police reached at the spot. I was taken to Raja Harish Chand Hospital by the police. My brother Purshottam remained in the factory at that time despite injuries as there was no person in the factory to look after. Later on, my brother Purshottam was also taken to the hospital. Police had recorded my statement in the hospital which is Ex. PW1/A which bears my signature at point A. At about 8:30 am, I was taken to the spot by the police after treatment from the hospital where I pointed out the place of occurrence. IO prepared the site plan on my pointing out. I had given my blood stained clothes i.e. vest (baniyaan), pant and one gamcha, with which the accused persons had tied my hands, to the police. The vest and pant were taken into possession by preparing a sealed parcel and gamcha was kept in the separate sealed parcel. The abovesaid clothes were seized vide seizure memo Ex. PW1/B and Ex. PW1/C both bear my signature at point A. SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 17 of 32 -18- Three accused persons out of four accused persons (who had come first) are present in the court today. Other two accused persons (out of six accused persons, who came later on) are also present in the court today (Correctly identified by the witness).
I can identify the case property if shown to me. I have brought the motorcycle no. DLBSAG5130 which was robbed and later on recovered. The said motorcycle is parked outside the court premises (shown to Ld. Defence counsel). The same is Ex. P1.
At this stage, one sealed envelope having seal of court (J.J. Board) is opened, which is found containing one payjama, but the said case property is not related to the present witness. Hence be resealed.
Another sealed parcel, having seal of court (J.J. Board) is opened, which is found containing one Baniyan (Vest) and one pant which are blood stained. The same are shown to the witness, which he identifies correctly as the same clothes which he was wearing at the time of incident and seized by the police. The Vest (Baniyan) is Ex. P2 and Pant is Ex. P3.
At this stage, another sealed parcel having seal of court (J.J. Board) is opened, which is found containing one gamcha. The same is shown to the witness, which he identifies correctly as the same by which he was tied by the accused persons at the time of incident. The same is Ex. P4. Another two sealed parcels having seal of court (J.J. Board) is opened, which are found containing two iron rods separately. Iron rods are shown to the witness, which he identifies correctly as the same which were used by the accused persons. The same are Ex. P5 & P6".
18. PW1 had also identified the accused persons as the persons, who committed dacoity in the factory on the date of incident. He deposed SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 18 of 32 -19- that three of the accused persons out of four accused persons (who had come first are present in the court) and two other accused persons (out of six accused persons, who came later on) were also present in the court whom he duly identified. He also identified the blood stained clothes, which he was wearing at the time of incident and one gamcha with which he was tied and also the iron rods used by the accused persons at the time of commission of dacoity.
19. PW2 Purshottam, his brother, who was also working as a watchman in the same factory has fully corroborated the version of PW1 regarding the time, place and the manner of the incident as well as identity of the accused persons involved in the crime. He also identified the case property shown to him in the court including blood stained clothes of his brother and his paijama, which he was wearing at the time of incident as well as also the robbed motorcycle bearing no. DL8SAG5130 and iron rods and broken lock and the cutter as well as the broken iron grill and the pieces of electric wires.
20. The other material prosecution witness PW7, who was the watchman of adjoining factory has deposed that on the night of the incident he was present in his factory and in the night at 4:00 am, both of them had knocked the door of his factory and he found complainant in injured condition and they also stated that their motorcycle, mobile phones and money had been stolen and that they had been given SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 19 of 32 -20- beatings by the assailants and they requested to provide a mobile phone, so that they can call at 100 number and one of them called at 100 number.
21. Similarly PW8 has deposed that he was working as a foreman in the factory in question and on the receipt of information regarding robbery he reached the place of incident at 5:00 am. He came to know that the guard of the factory Ishwar had already been removed to hospital and other guard Purshottam was present in the factory in injured condition, therefore, both these witnesses corroborated the presence of the PW1 and PW2 in the factory in question on the day of incident and their testimonies are relevant u/s 7 of the Evidence Act.
It is also proved from the MLC of complainant Ishwar Ex. PW19/C and that of Purshottam Ex. PW17/A that both of them had received injuries in the said incident.
22. Regarding the recovery part, IO PW25 has stated that on 04.08.2012, Ct. Samundar Singh, Ct. Ravinder, Ct. Ajay and Ct. Devender had joined the investigations with him and they reached at near round about Vijaya Bank, DSIDC Narela. There one secret informer met him and informed him that two persons would come from the side of Bhorgarh in a motorcycle and they were involved in the robbery case of PS Narela and they would go towards Vijaya Bank, if raided, they could be apprehended.
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23. On receiving this information, he requested 34 passersby to join the investigations, but none agreed and left the spot without disclosing their names and addresses. He passed the said information to the abovesaid constables. Thereafter, they put the barricades near the Vijaya Bank and took their positions and started waiting for the motorcyclists coming from the side of Bhorgarh.
24. At about 2:302:45 pm, one black motorcycle bearing no. DL 8S6891 came from the side of Bhorgarh on which two persons were sitting. The said motorcycle was asked to stop and same was stopped which was being driven by one Rahul and Rajnish was pillion driver, as their names were revealed to them after interrogation. Rahul is JCL, however Rajnish is present in the court today (correctly identified by the witness).
All the suspects were interrogated separately. At that time, it was not clear Rahul was JCL. Both the persons namely Rahul and Rajnish confessed their guilt as they were involved in the present incident. Accused Rajnish was arrested vide arrest memo already Ex. PW10/A and his personal search was conducted vide memo already Ex. PW10/B. Accused Rajnish was further interrogated and he made his disclosure statement which is already Ex. PW10/C. Rahul was arrested and his personal search was also conducted and he also made his disclosure statement.
SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 21 of 32 -22- On verification, the motorcycle no. DL8S6891 was found to be having fake number plate. The said motorcycle with fake number plate was taken into possession vide seizure memo Ex. PW10/D.
25. Thereafter, accused Rajnish lead them to road leading to the H Block, DSIDC Narela in a road side park and he dug the mud from the park and took out one cutter having a red grip. The said cutter was converted into a pulanda and sealed with the seal of MS and taken into possession vide seizure memo already Ex. PW10/E. Thereafter, Rahul (now JCL) lead them to his rented house no. 1182, gali no. 29A, Swatantra Nagar, Narela and from where he got recovered one mobile phone make Lemon of black colour without sim from an almirah from his room and the said mobile phone was converted into a pulanda and sealed with the seal of MS and taken into possession vide seizure memo.
Accused persons told them that their accomplice namely Salim would come at H Block, DSIDC Narela and as per their disclosure they started waiting for Salim. At about 5:456:00 pm, one person was seen coming and accused persons told that the said person was their accomplice Salim. The said person was apprehended and on interrogation he disclosed his name as Salim.
SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 22 of 32 -23-
26. Accused Salim was arrested vide arrest memo already Ex. PW10/F and his personal search was conducted vide memo already Ex. PW10/G. During his personal search, two mobile phones make Micromax having different sims were recovered. Accused Salim also made his disclosure statement which is already Ex. PW10/K. Accused Rajnish also disclosed that one of his associates namely Ravi was also involved in the robbery of the present case on 27.07.2012 and he further disclosed that the said Ravi was working in a factory at F Block, 1772, DSIDC, Narela. On this information, accused Rajnish lead them to abovesaid factory and outside the factory accused Rajnish pointed towards one person and told him that the said person was Ravi.
He apprehended accused Ravi who was present in the court. He also confessed to his guilt regarding the involvement in the present case and he was arrested vide arrest memo already Ex. PW10/H and his personal search was conducted vide memo already Ex. PW10/J and accused Ravi also made his disclosure statement which is already Ex. PW10/L. Thereafter, all the four accused persons lead them of place of occurrence and on their pointing out, he prepared the pointing out memos of place of occurrence vide memos already Ex. PW10/M, Ex. PW10/N and Ex. PW10/O. SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 23 of 32 -24-
27. Thereafter, as per the disclosure statement of accused Salim he lead them towards the park near Aggarwal Indicom Plaza, H Block, DSIDC, Narela and there inside the park he himself searched and got recovered an iron rod stated to have been used by him and his associates in the abovementioned incident on 26/27.07.2012. The said rod was converted into a pulanda and sealed with the seal of MS and taken into possession vide seizure memo already Ex. PW10/P. As per the disclosure statement of accused Ravi he lead them towards same park near Aggarwal Indicom Plaza, H Block, DSIDC, Narela and there inside the park he himself searched and got recovered an iron rod stated to have been used by him and his associates in the abovementioned incident on 26/27.07.2012. The said rod was converted into a pulanda and sealed with the seal of MS and taken into possession vide seizure memo already Ex. PW10/Q. All the accused persons were directed to remain in muffled face. Accordingly, they were kept in muffled faces. Thereafter, all of them came back to police station after their medical examination and they were kept in lockup. He deposited the case property with MHC (M) and he recorded the statements of witnesses.
28. The testimony of PW25 is corroborated by the testimony of PW10 Ct. Samunder Singh regarding the recovery part. However, the said recoveries does not inspire any confidence, as it has been admitted by PW25 that certain public persons were present at the spot. Yet they SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 24 of 32 -25- were not made to join the investigations. In fact, in all the chain recoveries, effected from one accused after another, no public witness had been joined, the disclosure statements of none of the accused persons bears the signature of independent witnesses. None of the rods were sent to FSL to find out the presence of any dust, blood or soil on them.
PW10 in his crossexamination has admitted that there was no specific mark of identification on the rods and same were easily available in the market.
29. It is hard to imagine that all the accused persons were arrested in series one after another on the same day and all of them made recoveries yet no public witness was ever joined in any of those recoveries. Nor any site plan of the place of recoveries was prepared by the IO to lend assurance to the said recoveries. The said rods/cutters were not such which were peculiar to the accused persons or to the modus operandi of the accused persons, such like rods and cutter were freely available in the market.
30. Further, the personal search memo of accused Salim Ex. PW10/G, shows recovery of so many mobile phones and another personal search memo of accused Sumit @ Bengali Ex. PW10/S shows recovery of one mobile phone. However, the IO had not collected the CDRs of those mobile phones seized during the personal SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 25 of 32 -26- search of the accused persons during investigations, in fact, he had admitted the same in his crossexamination, but he stated it was not relevant.
This non collection of CDRs of the mobile phones of the accused persons is an important omission on the part of the IO, as the same would have helped to find out the location of the accused persons at the time of the incident, if they had used the said mobile phones, as also their connection with each other.
Similarly, the CDRs of the robbed mobile phones would have also helped to point out the presence of the complainant party in the factory in question at the time of the incident, but the same was not done by the IO, as he considered it to be not relevant.
31. Further, though the chance prints were lifted from the spot, but chance prints only of one Rahul @ Ali, the JCL was found matching with the finger prints of all the accused sent for comparison, as per the report of the Finger Print Bureau proved by PW5, therefore, this also dents the prosecution story to large extent.
32. Regarding the identity of the accused persons, admittedly the accused persons were not known to PW1 or PW2 prior to the incident. In the present case, PW1 in his crossexamination with regard to the identity aspect, has stated that he was called in the police station after the arrest of the accused persons, he was shown the accused persons SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 26 of 32 -27- to identify them, he does not remember the date and exact duration when he was called in the police station, but it may be after 1015 days of the incident, when the motorcycle was recovered at that time he had seen the accused persons in the police station, thereafter also he was called by the police twice after the arrest of the other accused persons. He had seen four accused persons in the police station on the first occasion and one accused person on the second occasion after their arrest.
33. Further, PW25 IO in his crossexamination has stated that he recorded the supplementary statement of Ishwar in the Police Post on the same day, he cannot tell the exact time but he recorded the same after proceedings that is showing the dossiers etc.
34. Therefore, from the above testimonies, it appears that all the accused persons were shown to PW1 in the police station after their arrest, therefore, it is not clear for what purposes an application for conducting TIP was moved by the IO. Therefore, all the accused persons were fully justified in refusing to undergo TIP and their refusal in this regard cannot be read against them.
35. The greatest travesties that have taken place in criminal trials, have taken place on the point of identity of a person. In this case, the observational sensitivity of the complainant and PW2 should have been SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 27 of 32 -28- tested for the first time during TIP proceedings. The IO should not have shown the accused persons to them in the police station, as then the chances of false implication of the accused persons cannot be ruled out. Moreso, the complainant PW1 in his complaint or in the statement of PW2, no description of any of the accused persons had been mentioned.
36. PW25 has stated that all the accused persons were kept in muffled face in the police station and in the lockup and were also produced in the muffled face in the court and he also moved an application before Ld. MM for TIP of accused Ganga Prasad @ Anand on 04.01.2013, wherein witness Ishwar failed to identify the accused. Therefore, it appears that the only TIP conducted in proper manner by the IO after formally arresting the accused Ganga Ram failed, this also shows that other accused persons had already been shown to the PW1 and PW2 during the investigations, therefore, they were fully justified to refuse to undergo TIP.
37. Admittedly, the incident took place at around 3:00 am (night), on 27.07.2012. It is nowhere clear from the testimonies of PW1 and PW2 if there was sufficient illumination at the spot, therefore, it is not clear that PW1 and PW2 had sufficient opportunity to see the accused persons or therefore could identify them.
In any case, the observational sensitivity of PW1 and PW2 having SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 28 of 32 -29- witnessed the incident dated 27.07.2012, should have been tested for the first time by keeping the accused persons in muffled faces and without showing them to PW1 and PW2, so as to rule out any errors of perception which may have crept in their observational powers. If the accused persons would have been kept in muffled faces in investigations and had not been shown to the PW1 and PW2, then it is reasonably possible, that PW1 and PW2 would not have identified the accused persons as PW1 had failed to identify accused Ganga Prasad in TIP proceedings conducted in proper manner, who had not been shown to the PW1.
38. Further, the attendance register Ex. PW10/N which has been collectively exhibited as Ex. PX1 shows that both the PW1 and PW2 were absent on 27.07.2012 from their work as against their attendance remarks SL is there. Though, PW1 has stated that he was working as a watchman in the factory and his duty hours were from 7:00 pm to 7:00 am and his brother was working in the day shift, but he used to remain in the factory in the night hours. However, at the same time, if PW2 had exhausted his work for 26.07.2012, then it is possible that his attendance for 27.07.2012 would not have been marked, however, PW1 in his crossexamination stated that he left the spot at about 12:0012:00 noon i.e. on 27.07.2012 after coming back from the hospital, therefore, since he was on night duty his attendance should have been marked for the 27.07.2012. Though, this fact makes the SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 29 of 32 -30- presence of PW1 and PW2 in the factory on the date of the incident doubtful, however, at the same time, they were stated to be there as by large number of witnesses namely PW7, PW8 and PW20.
39. Further, PW1 has admitted in his crossexamination that it was factory of electrical cables and many bundles of electric cable were lying in the factory, but no bundle was robbed by the accused persons. Further, PW2 has also admitted in his crossexamination that copper and cable wire were lying in the factory, but none of them was stolen. Further PW6, the owner of the factory stated that he did not personally prepared the list of robbed articles.
40. In these circumstances, it is not clear when nothing substantial was robbed by the dacoits, while committing the robbery in the factory of the complainant than under what circumstances, and for what they had barged into the factory and for what purpose they had incurred so much risk, when their only intention was to rob mobile phones of PW1 and PW2, which they could have easily done by robbing any passersby or person travelling in a vehicle.
41. Further, the motorcycle in question bearing no. DL8S6891, as per prosecution version was being driven by accused Rahul (JCL) and Rajnish was pillion rider on the same, this also shows that it was only the accused Rahul (JCL), who was riding the same, and one Lemon SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 30 of 32 -31- mobile phone was also recovered from the possession of accused Rahul (JCL), both being the robbed articles from the possession of PW1 and PW2 as per the prosecution story, therefore, no recovery of motorcycle or mobile phone was made from accused Rajnish, since no public witness had also been joined in those recovery proceedings to lend assurance to the same, therefore, chances of false implication of accused Rajnish cannot be ruled out in these circumstances.
42. Even then there are serious issues/doubts with regard to the identity of the accused persons being involved in the present case, therefore the chances of false implication of accused persons cannot be ruled out.
43. On the probative scales, prosecution case is equally balanced in favour of the accused persons, both versions are equally probable, therefore the accused persons cannot be convicted on such kind of evidence, standard of proof being beyond reasonable doubt that is on scale of 1 to 10, the probative force of the prosecution evidence should be touching on the point of near certainty or in the range of 7 to 8, one being the point of total disbelief and 10 being the point of total certainty.
44. To Sum Up:
The net result of above discussion is that the prosecution has failed to prove its case beyond reasonable doubt, as a resultant, SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 31 of 32 -32- accused persons namely Rajnish Kumar, Ravi, Salim, Ganga Ram @ Ganga Prasad and Sumit @ Bengali stand acquitted of the charge(s) u/S 395 & 395 read with 397 IPC, further accused Rajnish Kumar also stands acquitted of the charge(s) u/S 412 IPC.
Bail bonds of the accused persons stand cancelled and their sureties stand discharged. Original document(s), if any be returned after cancelling the endorsement(s), if any on the same, if the same are not resubmitted while furnishing bail bonds u/S. 437A CrPC.
Accused persons Sumit @ Bengali and Rajnish Kumar be released from JC, if not required in any other case.
File on completion be consigned to record room.
Announced in the open Court (Sanjeev Aggarwal) th on this 8 day of Feb. 2018 Addl. Sessions Judge02,North Rohini Courts, Delhi/08.02.2018 SC No. 58038/16 FIR No. 391/12 PS. Narela State Vs. Rajnish Kumar & Ors. Page No. 32 of 32