Delhi District Court
State vs . 1. Umesh S/O Kanshi Ram on 10 May, 2007
Sessions Case No. 142/2006 1
IN THE COURT OF SHRI NEERAJ KUMAR GUPTA:
ADDL. SESSIONS JUDGE: DELHI
S.C. No. 142/2006
State Vs. 1. Umesh S/o Kanshi Ram
2. Subhash S/o Babu Lal
3. Devender alias Ram S/o Surat Singh
4. Nirbhay Kumar alias Boby S/o Bhunesh Rai
5. Deepak Kumar S/o Krishan Lal
6. Rajesh Kumar alias Tinku
FIR No. 708/2000
PS Ashok Vihar
U/s 395 r/w 397 &
307/34 IPC
JUDGMENT
Charge U/s 395 readwith Section 397 IPC and U/s 307/34 IPC were framed by my Ld Predecessor against the accused persons for committing dacoity of Rs. 10,25,000/- belonging to Rajiv Bansal from Rakesh and while committing this dacoity using fire arm and firing bullet upon Rakesh with such intention and knowledge and under such circumstances that if by that act they have caused death, they would be guilty of murder, on 20.11.2000 at about 7.40 PM at a place opposite building A-127 (G) Wazirpur Industrial Area.
2. The prosecution case is that on receipt of DD No. 16, SI Parveen Kumar reached premises bearing No. A-127 (G) WPIA, the place of incident, where it transpired that Rakesh, the injured had been removed to Sessions Case No. 142/2006 2 D.R. Nursing Home and eye witness Rajeev Bansal who was present made statement to the effect that at about 7.30 PM, he had gone to the office of Ved Garg at A-127 and has collected money from him and alongwith Rakesh came out from the building carrying a black colour brief case and a thaila of yellow colour containing Rs. 10,25,000/- which brief case and the money he had handed over to Rakesh but when they came out from the building, a maruti car was found standing there from which three persons between the age group of 25 to 30 years, got down and on the point of countrymade revolver tried to snatch the bag and brief case and when it was objected to by Rakesh, then, one of them fired at Rakesh from the countrymade revolver and ran away after robbing them of the brief case as well as the bag containing the money. He has also made statement that he can identify the persons if they are produced before him and also the cash if produced before him the number of which they could not note down.
3. It is the case of the prosecution that on the statement of Rajeev Bansal a case U/s 394,397/34 IPC was registered and accused Devender alias Raman, Nirbhay Kumar alias Bobby, Rajesh Kumar alias Tinku and Deepak Kumar were apprehdned by CIA Staff, Gurgaon in a case U/s 399/402 IPC & Section 25 Arms Act wherein they made disclosure statement regarding their involvement in the present case and they were Sessions Case No. 142/2006 3 arrested in the present case.
4. It is further the case of the prosecution that Test Identification Proceedings were got conducted in respect of the accused persons and out of the robbed amount, a sum of Rs. 30,000/- was recovered from Nirbhay and the cloth thaila was recovered from Devender. Accused persons made disclosure statement in this case.
5. It is also the case of the prosecution as per charge sheet that no direct recovery could be effected from accused Umesh in whose respect also Test Identification Proceedings were got conducted.
6. It is further the case of the prosecution case that other accused persons were also arrested in other cases and they made disclosure statement regarding this case.
7. I have heard the ld APP and ld defence counsel and gone through the entire record carefully.
8. PW Rakesh who is the injured has not been examined in the present case by the prosecution despite availing number of opportunities and ultimately statement was given that he is not available and cannot be produced.
9. Rajeev Bansal had been examined as PW1 and he has supported the version only with regard to the coming down from the office and being brought and his statement being recorded. He has not identified any of the Sessions Case No. 142/2006 4 accused persons present in the court being one of the persons who had robbed them and rather in his cross-examination, he has stated that due to darkness, he was not able to see anything. The fact also remains that the the case property was not shown to him nor was got identified by him in the court. So, the star witness has not deposed anything against any of the accused persons nor had identified them properly.
10. PW Neeraj Mittal who is also a witness to the incident as per case of the prosecution in his examination in chief has stated that he had only heard the voice of thaila Chor and gunshot and when he came down stairs, the persons had already fled away. He has also stated that he did not see in what mode of transportation, those persons had left the spot or that their office is at first floor. The witness was declared hostile by the prosecution but in his cross-examination also, he denied that he had seen any maruti car at the spot. He also denied that he saw three persons running away from the spot or that he saw one of the persons firing at Rakesh. He had also denied that he had told the police that Rakesh resisted the attempt of robbery and has categorically stated that he cannot identify any of the accused persons and the accused persons present in the court were not the persons who had committed robbery.
11. Shri Ved Garg from whose office, the complainant has come down has been examined as PW4 and so far as the role played by the accused Sessions Case No. 142/2006 5 persons is concerned, he has stated that he cannot identify anyone of them and the police did not bring anyone of the accused in his office for the purpose of identification. He was also declared hostile by the prosecution. This witness was specifically put the currency notes which were infact given by him to Rakesh but he denied that the notes produced before him are the same. He has also stated that Rajeev Bansal has come only to pay a casual visit. He denied that on 21.12.2000, police brought Nirbhay and Rajesh in his office or that he identified Nirbhay. He also denied that accused Rajesh was having a fire arm or it is he who had fired the same. He also denied that on 27.12.2000, he joined the investigation or accused Devender led the police party to the Petro Pump, Anand Super Service Station, Malka Ganj and got recovered one bag from there. So, the recovery of bag at the instance of accused Devender is also not proved as public witness has not supported the case of the prosecution. This witness has also denied that on 25.1.2000, he identified accused Deepak in court complex being the person who had pointed out a pistol towards the complainant.
12. Another public witness who as per the prosecution case has also witnessed the incident has been examined as PW9. But PW9 Ajay Kumar has stated that he is not aware of any incident and at the relevant time, he had gone to a dhaba and when he came back, police persons were Sessions Case No. 142/2006 6 already there and he was driver there with Ved Parkash. He has denied that Rajeev Bansal and Ved Garg came down stairs in his presence or that Rakesh was carrying a bag. He has also denied that a white colour maruti car came there and three boys came out of the same. He has stated that he had identified one of the accused in the jail but today, he is not sure about the identity, of that man or whether accused Devender is present in the court or that he is the same person who had been identified by him. In his cross-examination on behalf of the accused, he has stated that Devender was seen by him before he went to Tihar Jail and his photograph was also shown to him and IO told him that he has to identify the person who appeared in the photograph as Devender but otherwise he do not know Devender and had not seen Devender earlier. So, TIP of accused Devender was otherwise of no use as not only the photograph of the witness was shown and the identification was done at the instance of IO but the fact also remains that the witness in the court had not identified the accused Devender to be the person present at the spot. The fact remains that all the public witnesses who were victims and have witnessed the incident have not stated anything against the accused persons nor have identified the case property. So, the recovery if any by the police which was otherwise not proved becomes meaningless.
13. So far as recovery of Rs. 30,000/- from accused Nirbhay in the Sessions Case No. 142/2006 7 shape of notes of denomination of Rs. 500/- each are concerned, PW8 had stated in his cross-examination that the place of recovery is in the residential area but he do not know whether any public witness was joined for recovery or not. It is also stated that the door of the house was open at the time of visit and he cannot tell the number of floors in that building. He has stated that he do not remember if in his statement made to the IO he had stated that recovery was effected or not from the first floor and he was confronted in this regard with his statement Ex. PW8/A where first floor is not recorded. This witness has also not stated as to how many rooms were there in the house. He has also stated that keys of the room or almirah were not seized. He has also stated that no mark of identification was put on the currency notes and the main gate was lying open and anybody could enter or leave the house, and the passage outside the main door was a thorough passage. As such, since this witness has feigned ignorance regarding the place from where recovery was effected, this witness cannot be said to have witnessed the recovery and in the alternative, it is apparent from the testimony of this witness that the place of recovery was a place which was accessible to all, and the version of keys being produced by the accused is not supported as key was not taken into possession. All the accused have denied that any recovery was made from them.
Sessions Case No. 142/2006 8
14. PW11 constable Sudhir in this regard has stated that three or four persons were there in the room from where recovery was effected and even one person met them in the room. So recovery, if any, from such a room which is in occupation of other becomes meaningless and cannot be considered as recovery from the accused. Moreover, PW1 constable Sudhir has stated that the almirah of room was locked and key was taken from the person present in the room at the instance of accused. So, as per him, key was not produced by the accused but by some other person. The fact remains that such person was not made a witness or was not made an accused. So, recovery from accused Nirbhay becomes absolutely meaningless.
15. So far as recovery of a bag at the instance of accused Ravinder Devender is concerned, as per PW12, Devender has led the police party to the place near Anand Service Station and he has produced the bag from the bushes and no public witness was joined. He has admitted that there was patrol pump but no person from petrol pump was joined. Even the bag has not been identified by any of the persons who was robbed or has witnessed the incident. As such the recovery otherwise becomes doubtful. In any case bag had not been identified by the relevant witnesses.
16. As per testimony of PW15 Shri A.S. Datir, who was Metropolitan Magistrate at the relevant time, accused Deepak Kumar was not identified Sessions Case No. 142/2006 9 by Rakesh Jain during TIPand accused Rajesh alias Tinka, Bobby alias Nirbhay and Devender alias Raman have refused TIP and the fact remains that these persons were not identified by the witness in the court. As such, they cannot be connected with the case.
17. PW17 shri Bhanu Partap has denied that he has witnesed the incident or had made statement before the police. He was declared hostile but still he has denied all the facts put to him by the ld APP.
18. PW19 Sushil Gupta has also stated that it was dark all around and he has not witnessed the incident. He was also declared hostile but he denied making any statement to the police or having witnessed the incident.
19. As per PW20 Ms Renu Bhatnagar who was MM at the relevant time, Rakesh Jain could not identify accused Devender during the TIP but, Ajay had identified. However Ajay had clearly stated that the accused was shown to him by the police and photograph of accused was also shown and he was directed by the police to identify a particular person. As such, identification of Devender during TIP becomes meaningless. Even otherwise Rakesh in his deposition has stated that he has not witnessed the incident and he cannot identify the accused persons including accused Devender.
20 In view of the above discussion, the prosecution has failed to Sessions Case No. 142/2006 10 establish its case against all the accused persons. Accordingly, they are acquitted. Their bail bonds stand released. Their sureties are discharged. File be consigned to record room.
Announced in open court on this (NEERAJ KUMAR GUPTA) 10 day of May, 2007 th ADDL. DISTRICT & SESSIONS JUDGE DELHI