Delhi District Court
State vs 1. Raju @ Hakla on 17 April, 2010
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In the Court of Ms. Shalinder Kaur
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 95/09
State versus 1. Raju @ Hakla
S/o Om Prakash
R/o T313/06
Baljeet Nagar, Delhi
2. Bijendra @ Lala @ Pahalwan
S/o Radhey Shyam
R/o RZA39, Shama Colony
Mubarakpur Nagar, Delhi
Case arising out of:
FIR No. : 89/04
Police Station : Patel Nagar
Under Section : 392/394/397/411/34 IPC
Judgment reserved on : 06.04.10
Judgment pronounced on : 17.04.10
JUDGMENT
Case History:
1. Accused Raju @ Hakla Bijendra @ Lala @ Pahalwan stand trial before this Court for the offences punishable U/s 392/394/397/411/34 IPC.
2. Prosecution in brief has alleged against the accused persons that on 29.02.04, DD No. 18 D was recorded at 11:30 AM in police station Patel nagar to the effect; near police station West Patel Nagar, 34 boys had SC:95 /09 State vs. Raju @ Hakla & Anr.:2:
stabbed whose identity not known. The said DD said was handed over to ASI Somvir who alongwith Constable Lal Babu reached the place of occurrence. There he met the complainant, Kishan Lal Nagpal and recorded his statement Ex.PW 5/A. The complainant stated that around 11 AM, he was going from his house to Punjab National Bank, Patel Road to deposit Rs. 50,000/. The said he had wrapped in an old shirt of his child alongwith a paper slip in his handwriting mentioning about the denomination of the currency notes. He was carrying the money in his right hand while in his left hand he was holding the passbook of Punjab National Bank. Around 10:10 AM, he reached at the back side of cottage no. 56. Three boys came from front and stopped near him. They asked him what was in his hand. He told them that he had a pass book. The boys asked him to handover everything to them. On his refusal, one of the boy took out a knife and put it on his waist and the other boy gave a blow to him with a sharp thing like a knife but he saved it with his left hand, due to which his left hand got injured and the passbook fell down. The third boy snatched the money from his right hand. When he raised alarm the boy who had snatched his money ran towards Aggarwal Sweets and his both accomplices ran towards the back side in a gali. At the corner of the gali their another accomplice was sitting on a black colour motor cycle and waiting. Those two boys sat on the motor cycle and ran away. The complainant could not note the number of the motor cycle and stated that he could identify all the three boys if brought before him. The complainant has mentioned the age, height and built of the three boys but could not tell about the appearance of the 4th boy as he was at a distance from him whom he could not see properly. The complainant requested for a SC:95 /09 State vs. Raju @ Hakla & Anr.
:3:legal action.
3. On the basis of the said complaint, rukka Ex.PW 5/A was prepared and FIR Ex.PW 2/A was registered. During investigations the site plan was prepared, On the arrest of accused Raju @ Hakla, recovery was affected and statements of witnesses were recorded. On completion of the investigations, charge sheet for offence punishable U/s 392/394/397/411/34 IPC was laid.
4. After the case was committed for trial to the Sessions, vide orders dated 08.10.04, Charge for offences punishable U/s 392/394/397/34 IPC was framed against both the accused persons. Accused Raju @ Hakla in addition was charged for offences punishable U/s 411 IPC. The accused persons pleaded not guilty to charge. Accused Ganga Prasad @ Chatpatiya @ Bittu was discharged by the Learned MM at the stage of investigations vide order dated 11.06.04 as he was not identified in the Test Identification Parade (TIP) proceedings. The State did not file any appeal against the said order.
5. The prosecution examined 22 witnesses in order to substantiate the charge against the accused persons.
Evidence:
6. PW1 Dr. Amit Rajpal Anand deposed that he was working as ACMO in DDU Hospital on 29.02.04. In casualty he had examined Kishanlal Nagpal and had found abrasion on his left hand. He had opined the injuries to be simple. The witness proved the MLC of the complainant as Ex.PW 1/A. The SC:95 /09 State vs. Raju @ Hakla & Anr.
:4:testimony of the witness is unchallenged.
7. PW2 HC Suresh Kumar had recorded the FIR of the case while working as a Duty Officer on 29.02.04 in police station Nangloi. He deposed that the rukka was brought by Constable Lal Babu. The witness proved the FIR as Ex.PW 2/A and the endorsement made by him on the rukka as Ex.PW 2/B. The witness was cross examined on behalf of accused to show that there has been some manipulation in the FIR as the list of witnesses written in the FIR was not in his handwriting but nothing material could be brought through the cross examination of the witness. Constable Lal Babu has been examined as PW11. He has corroborated the testimony of PW2 to the effect that he had taken the rukka sent by SI Somvir for registration of the FIR to the police station. The witness was declared hostile by Learned Addl. PP as due to lapse of time he could not tell about all the facts of the case. During cross examination by Learned Addl. PP, the witness deposed about the investigations conducted by the Investigating Officer on 29.02.04 while he was with him. While being cross examined, on behalf of accused persons, the witness stated that they had gone to the place of occurrence on foot and 1015 public persons were present at the spot when the complainant had met them. He did not remember whether Investigating Officer had made any inquiries from any public persons at the spot.
8. PW5 Kishan Lal Nagpal is the complainant of the case. His testimony shall be adverted to subsequently in detail.
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9. PW4 W/ASI Pushpa had deposed that on 20.04.04 while she was posted as Duty Officer in police station Patel Nagar. She has received an information from SI Randhir Singh of police station Moti Nagar on the telephone to the effect that accused Raju @ Hakla was arrested in case FIR No. 224/04, U/s 25 Arms Act, police station Moti Nagar who had disclosed for having committed the offence in the present case. She had recorded the said information as DD No. 24 B which she proved as Ex.PW 4/A. Though the witness was cross examined on behalf of the accused persons but nothing much could be brought from the testimony of this witness during crossexamination.
10. PW6 HC Rajguru had recorded DD No. 9A on 07.05.04 which is Ex.PW 6/A. This DD was recorded on the basis of information received from SI Pradeep of Special Crime Team of Prashant Nagar regarding arrest of accused Bijender @ Lala @ Pahalwan in case FIR no. 517/04, U/s 186/535/307/34 IPC and 25/27/54 Arms Act.
11. PW 8 Constable Dilawar has deposed that on 06.05.04 he was posted at Special Team of Crime Branch, Prashant Vihar and had joined the investigations of case FIR No. 517/04, U/s 186/353/307 IPC police station Sultanpuri. Accused Bijender @ Lala was interrogated by ASI Pradeep Kumar and his disclosure statement Ex.PW 8/A was recorded. In cross examination the witness deposed that accused had disclosed his involvement in 89 cases. But the witness could not give details of all those cases. PW12 Constable Krishan Kumar and PW 16 SI Manish Mehta have SC:95 /09 State vs. Raju @ Hakla & Anr.
:6:corroborated the testimony of PW8 qua recording of disclosure statement Ex.PW 8/A of accused Bijendra @ Lala. During cross examination, PW12 deposed that the accused was arrested at the instance of a secret informer. However, PW16 could not tell about the contents of the disclosure statement. PW19 Inspector Pradeep Kumar deposed that on 06.05.04, he was posted at Special Team, Crime Branch, Prashant Vihar and he was the Investigating Officer of the case FIR No.517/04 police station Sultanpuri. He has proved the investigations conducted qua the case which shall be adverted to in detail subsequently.
12. PW9 Constable Ram Vilas deposed that while he was posted as Constable in police station Moti Nagar on 19.04.04 he had joined the investigations of case FIR no. 225/04, U/s 25 Arms Act with SI Suresh Chand Kaushik. In his presence accused Ganga Prasad was interrogated who had disclosed the involvement of accused Raju @ Hakla and Vijay in committing robbery of the present case i.e. case FIR no. 89/04. In crossexamination the witness could not tell the number of case FIR in which accused Ganga Prasad and other accused persons had revealed their involvement. He could not tell that on which day the Investigating Officer of the present case had met him.
13. PW13 Constable Ashok Kumar deposed that on 19.04.04 while he was posted in police station Moti Nagar as Constable he had joined the investigations of the case FIR no. 224/04 of the police station Moti Nagar with SI Randhir Singh. Accused Raju @ Hakla was interrogated by SI Randhir SC:95 /09 State vs. Raju @ Hakla & Anr.
:7:Singh who made disclosure statement Ex.PW 13/A (Ex.PW 4/A). In cross examination the witness could not remember the time when Investigating Officer had started recording the disclosure statement or finished the same. He deposed that he knew accused Raju @ Hakla earlier and except recording of the disclosure statement no other document was prepared before him.
14. PW10 ASI Suresh Chand has proved the arrest of accused Ganga Prasad in FIR No.225/04 under Arms Act on 19.04.04. In crossexamination, the witness deposed that no recovery was effected in pursuance of the disclosure statement made by the accused. The witness could not give the details of the cases which were disclosed by accused Ganga Prasad.
15. PW17 SI Ram Narayan was the Investigating Officer of case FIR No.172/04 police station Moti Nagar. He deposed that accused Raju @ Hakla and Ganga Prasad were arrested by SI Tribhuvan Negi on 01.05.04. Disclosure statement of accused Raju @ Hakla Ex.PW14/A was recorded by the witness. In pursuance to the said disclosure statement, the accused led the witness and ASI Zile Singh for recovery to his house bearing H.NO.1, Gali No.1, Nehru Nagar, Anand Parbat and pointed out towards one room located at first floor of the house. He took out one dharidar shirt of a child in green, yellow, maroon and white color. In the shirt, ten notes of 100 denomination each and one slip having details of the money were wrapped. PW14 sealed the shirt with the seal of 'RM' and seized it vide seizure memo Ex.PW14/B. The seal after use was handed over to ASI Zile Singh. He SC:95 /09 State vs. Raju @ Hakla & Anr.
:8:informed the Investigating Officer of case FIR NO.89/04 of police station Patel Nagar about the recovery as the said recovery pertained to this case. When ASI Somveer Singh Investigating Officer of this case met him, he had handed over the copies of all the relevant documents to him. The witness identified the case property in the Court. The shirt is Ex.P1, the paper slip is Ex.P2 and ten currency notes are Ex.P3 (collectively). The witness was crossexamined at length on behalf of the accused persons. He deposed that accused Raju @ Hakla had made disclosure statement while he was in police custody in case FIR No.172/04. He had informed the Investigating Officer of case FIR No.89/04 police station Patel Nagar on 02.05.04. The witness was elaborately crossexamined qua the place of recovery. PW20 ASI Zile Singh has deposed on the same lines as testified by PW14. The said witness was also crossexamined at great length qua the place of recovery.
16. PW15 HC Karan Singh had accompanied SI Somveer on 24.05.04 to Tis Hazari Court where the accused Raju @ Hakla was formally arrested vide memo Ex.PW15/A and accused Bijender @ Lala @ Pahalwan was arrested vide memo Ex.PW15/B. The witness has proved the disclosure statement made by both the accused persons recorded vide Ex.PW15/C and Ex.PW15/D. The testimony of this witness is unchallenged.
17. PW17 Ms. Archana Sinha, Learned MM (as she then was) had conducted the Test Identification Parade (TIP) of accused Raju @ Hakla, Bijender @ Lala @ Pahalwan and Ganga Prasad @ Chatpatiya @ Bittu. The witness has proved the proceedings conducted by her as Ex.PW17/A, SC:95 /09 State vs. Raju @ Hakla & Anr.
:9:Ex.PW17/B & Ex.PW17/C respectively and the certificate of correctness to the proceedings given by her as Ex.PW17/D, Ex.PW17/E & Ex.PW17/F. The testimony of this witness is unchallenged.
18. Sh. Kanwaljeet Arora, Presiding Officer, MACT has been examined as PW18 who had conducted the Test Identification Parade (TIP) of the case property which he proved as Ex.PW18/B. The certificate of correctness regarding the proceedings is proved by the witness as Ex.PW18/C. The suggestions given to the witness during crossexamination that sample shirts similar to case property shirt or only the case property shirt was put up for TIP have been refuted by him.
19. In the statement recorded U/s 313 Cr.P.C., the accused persons have denied the case of prosecution and claimed to be innocent. They submitted their false implication in this case. Both the accused persons have not led any evidence in defence.
Contentions:
20. On behalf of the State, Learned APP submitted that the accused persons are habitual offenders who have committed similar offences at different times. PW5 Krishan Lal is the complainant and the main witness of the prosecution who has consistently deposed about the incident. He has correctly identified the accused persons and as well as the case property. Accused Raju @ Hakla was correctly identified by the witness even during Test Identification Parade (TIP) which fact has also been established through SC:95 /09 State vs. Raju @ Hakla & Anr.
:10:the evidence of PW17. PW5 has deposed that he had become little confused and was also scared of the accused persons, therefore, out of the two persons lined up for TIP, he was not sure about the identify of the accused person out of those two persons. But the Learned Magistrate had observed in TIP proceedings that accused Bijender @ Lala @ Pahalwan was present amongst those two persons for whom PW5 had stated that accused was one of them. It was submitted that the accused persons were arrested in other cases. Accused Raju @ Hakla had made a disclosure statement, got the case property of the present case recovered and also got accused Bijender @ Lala @ Pahalwan arrested. As the identity of both the accused persons was thereafter established by PW5, the prosecution case has been proved beyond reasonable doubt. Moreover, the investigations of the present case as well as the arrest of both the accused persons in the other cases have been cogently proved by the police witnesses. The medical evidence adduced through the testimony of PW1 also corroborates the testimony of complainant PW5.
21. Coming to the submissions made on behalf of accused persons, though different Counsels had addressed arguments but it was mainly contended that the accused persons are not named in the FIR. Accused Raju @ Hakla was arrested in another case. He made a disclosure statement qua the present case and also regarding the coaccused Bijender @ Lala @ Pahalwan. The incident had occurred on 29.02.04 but accused Raju @ Hakla was arrested in another case on 20.04.04 whereas accused Bijender @ Lala @ Pahalwan was arrested on 06.05.04. The TIP of the accused persons was SC:95 /09 State vs. Raju @ Hakla & Anr.
:11:conducted on 05.06.04. Thus, the police had sufficient time to show the accused persons to the complainant. Moreover, the prosecution has not been able to assign any reason for not holding the TIP of the accused persons for such a long time after their arrest. The complainant has also admitted in his testimony that the accused persons were shown in the police station before TIP. Accordingly, the testimony of PW5 regarding the identity of the accused persons cannot be relied upon. It was contended that it has been mentioned in the TIP proceedings held by PW17 that the sample persons who were arranged for holding TIP of the accused persons were different looking, thus, this vitiates the very purpose of holding TIP of accused persons. Doubt was also raised even on the recovery of the case property. It was argued that in the statement of the complainant Ex.PW5/A, made to the police, it has been mentioned that the complainant had wrapped his currency notes in checkdar shirt but recovery of a dharidar shirt has been shown at the instance of the accused Raju @ Hakla.
22. It was further urged that the role assigned to accused Bijender @ Lala @ Pahalwan is the same as was assigned to accused Ganga Prasad i.e he was arrested on the disclosure statement made by coaccused Raju @ Hakla and no recovery was effected from him but accused Ganga Prasad was discharged and accused Bijender has faced trial. Still, there is no incriminating evidence even against accused Bijender @ Lala @ Pahalwan. It was submitted that a cursory reading of disclosure statement of accused Raju @ Hakla in itself shows that the accused persons have been falsely implicated in this case so as to work out the pending cases with the police.
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:12:He had made disclosure regarding 14 cases with all particulars which in itself shows false implication of the accused persons. As it is difficult for human memory to remember all the incidents with particulars of so many cases.
23. During the course of arguments, various contradictions, appearing in the testimony of prosecution witnesses as well as lacuna in the investigations were pointed out. It was submitted that the accused persons have been falsely implicated in this case. In defence of the accused persons, the following judgments were cited :
(i).State of Maharashtra vs. Arun Umaji Bansode 2004 Cri.LJ 9706.
(ii).Ghanshyam @ Bablu vs. State 2010 (1) JCC 240.
(iii).Mahabir vs. State of Delhi 2008 (2) JCC 1244.
Findings:
24. The principal contention raised on behalf of the accused persons is that the identity of the accused persons for having committed the offence has not been established by the prosecution. Doubt was thrown on the manner in which the Test Identification Parade (TIP) was conducted. It was contended that even the TIP proceedings were not conducted fairly as there has been a long delay in holding the TIP of the accused persons. In Mahabir vs. State of Delhi (supra), it was held : It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence SC:95 /09 State vs. Raju @ Hakla & Anr.
:13:of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of prior test identification, therefore, it to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration.
25. In the light of above cited law, let us examine the evidence of the prosecution witnesses qua the identification of the accused persons.
26. Accused Raju @ Hakla was arrested by the police of police station Moti Nagar in case FIR No.224/04 U/s 25/54/59 Arms Act on 20.04.04 whereas accused Bijender @ Lala @ Pahalwan was arrested on 07.05.04 in case FIR No.517/04 U/s 186/353/307/34 IPC & 25/27/54 Arms Act. The alleged incident of the case had taken place on 29.02.04. Both the accused persons were formally arrested in this case on 24.05.04 vide arrest memos SC:95 /09 State vs. Raju @ Hakla & Anr.
:14:Ex.PW15/A & Ex.PW15/B. The application for holding TIP of the accused persons was moved for the first time on 27.05.04. The prosecution has not been able to explain that even though the police of police station Patel Nagar was informed vide DD No.24B Ex.PW4/A on 20.04.04 regarding the arrest of accused Raju @ Hakla in case FIR No.224/04 and having disclosed about the commission of offence in the present case, and DD No.9A was recorded qua the information regarding the arrest of the accused Bijender @ Lala @ Pahalwan on 07.05.04 in case FIR NO.517/04 and for having disclosed about the commission of offence in the present case, still the Investigating Officer of the present case did not make any effort for arrest of both the accused persons in this case for such a long time. Even after the arrest of the accused persons on 24.05.04, the application for holding their TIP was not moved on the same day i.e on 24.05.04 itself but was moved on 27.05.04. The non explanation of these delays becomes a very important factor to demolish the prosecution case.
27. PW5 has deposed that he had gone in police station Moti Nagar once for identification. The accused persons were in the police station when he went there and the accused were made to sit on the floor when he visited the police station. He was asked to identity the accused persons and accordingly he had identified them. PW5 has further deposed that he had identified the accused Raju @ Hakla as he had already identified him in the police station. From this deposition, it emerges that PW5 complainant Krishan Lal Nagpal had already seen the accused persons in police station Moti Nagar. Thus, the purpose of holding the TIP thereafter becomes totally SC:95 /09 State vs. Raju @ Hakla & Anr.
:15:futile.
28. From the testimony of PW5, it further emerges that for holding TIP, the jail inmates who were to be mixed with the accused persons were of different heights and sizes. He deposed that there were nearly ten boys paraded during TIP who were of different age, height and all were looking differently. The witness has also improved his statement recorded in TIP proceedings Ex.PW17/B qua accused Bijender @ Lala @ Pahalwan. As per Ex.PW 17/B, PW5 had taken two separate rounds before the persons lined up for holding identification parade and informed PW17 that the accused was amongst two persons but he was in doubt that who was the actual accused out of the two. On the other hand, PW5 has deposed that he had intimated to PW17 during TIP that the accused persons were gazing at him furiously. She had not recorded the same but had asked him to keep a distance from them. He was assured that there is no fear of fret from the persons lined up for TIP. He trusted the words of Learned MM and had identified accused Bijender @ Lala @ Pahalwan after assurance given by the Learned MM. But in TIP proceedings Ex.PW17/B, no such fact has been mentioned although a detailed TIP proceedings had been drawn by PW17. Moreover, PW17 has not been cross examined on this fact that on the assurance given by PW17 the witness had identified the accused Bijender @ Lala @ Pahalwan Moreover, PW5 did not specifically identified the accused Bijender @ Lala @ Pahalwan before the Learned MM though he has deposed so in his testimony.
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29. PW5 has also deposed that he was taken to police station Rajouri Garden for showing the photographs of the persons but he could not identify from those photographs. His statement was also recorded by the police at Rajouri Garden, at Tihar and at DDU Hospital and also at his shop. In the statement Ex.PW5/A, the complainant has not given any physical description of the accused persons but has merely stated about their age group, height and built. Thus, it is evident from the testimony of PW5 that he was taken to different police stations before holding the TIP of the accused persons. in police station, Moti Nagar, he had seen the accused Raju @ Hakla.
30. PW5 has also testified that he was doing the business of tent house in West Patel Nagar under the name and style of Nagpal & Sons Tent House. He was doing the said business with his sons. The witness admitted that he used to put tents in the police station and also in jails. As the TIP of the accused persons was held after a very long time and the accused Raju @ Hakla was arrested after about one month 20 days from the date of incident and accused Bijender @ Lala @ Pahalwan was arrested after 20 days of the arrest of accused Raju @ Hakla, the possibility of having shown the accused persons to the complainant or photographs shown to him during the period intervening their arrest in this case cannot be ruled out.
31. PW5 Complainant Krishan Lal has deposed that on 29.02.04 at about 10.30/ 11 AM, he was going to Punjab National Bank to deposit Rs.50,000/. He had noted the description of currency notes on two parchies; one of which was with him and the other was in his thaila. He had wrapped SC:95 /09 State vs. Raju @ Hakla & Anr.
:17:the currency notes in old dharidar shirt of a child. One parchi was wrapped with currency notes and kept in the shirt of child and the other was in his pocket. He was holding the currency notes in his right hand whereas the bank passbook was in his left hand. When he reached in the middle of O & P Block near Cottage NO. 5 & 6, three boys came on motorcycle out of whom one boy remained sitting on the motorcycle whereas two boys came to him in the gali. They all asked him what was in his hand. He replied to them that he had kept old cloth in his hand, then all the three accused persons demand currency notes wrapped in the shirt from him. When he refused then one of them had put knife on his chest and another on his back. He had tried to kick one accused and continued to argue with them. Two accused persons asked the third one to give a knife blow to him but he stopped the blow with his left hand and in the process, his passbook and currency notes fell down. The accused persons snatched the shirt while the passbook remained lying there and that accused ran towards Aggarwal Sweet House and the other two accused persons ran on the motorcycle. The witness started weeping there.
32. There are major improvements made by the witness in his testimony. In his statement Ex.PW5/A, he had stated to the police that they were four boys out of which three had come to him and fourth one remained seated on the motorcycle which he had parked at the corner of the gali. Whereas in the Court, the witness has deposed that in all there were three boys and one of them ran towards the Aggarwal Sweet House whereas the other two left on the motorcycle. Moreover, the witness has deposed that he had wrapped currency notes of Rs.50,000/ in an old shirt of his child with SC:95 /09 State vs. Raju @ Hakla & Anr.
:18:which he had kept a slip of paper on which the denomination was mentioned but the witness had deposed in the Court that he had two paper slips; one was wrapped with the currency notes and the other he had kept in his pocket. The prosecution has failed to show what had happened to the other paper slip which was kept by the complainant in his pocket.
33. Further more, the recovery of the case property is also doubtful. The investigating agency has shown the recovery of only Rs.1000/ out of the robbery of Rs.50,000/ and that too only at the instance of one accused. As per prosecution case, the complainant had wrapped the currency notes in a stripped old shirt but the seizure memo Ex.PW14/B, recovery of a checkdar shirt of a child has been shown. In the seizure memo, the numbers of the recovered Rs.1000/ currency notes in the denomination of Rs.100/ has not been mentioned. Accordingly, the prosecution has failed to prove that whether the ten currency notes recovered from the possession of accused Raju @ Hakla at his instance was actually the case property of this case. Also, no public witness has been joined during recovery which was made on 02.05.04. Moreover, PW14 SI Ram Narayan had recorded the disclosure statement of accused Raju @ Hakla on 01.05.04 and the said recovery was made on 02.05.04 in pursuance of the disclosure statement still SI Ram Narayan did not think it proper to join the Investigating Officer of the present case although an information regarding the arrest of accused Raju and the alleged disclosure statement made by him had already given in police station Moti Nagar on 20.04.04.
34. PW18 Sh. Kanwaljeet Arora, Learned Presiding Officer, MACT SC:95 /09 State vs. Raju @ Hakla & Anr.
:19:had conducted the TIP of the case property vide proceedings Ex.PW18/B. From the proceedings, it is evident that the TIP of ten currency notes as well as of paper slip was not conducted holding that no TIP of these articles can be conducted. Only the TIP of the shirt was got done. However, PW18 has not mentioned the description of the case property that whether it was stripped or a checkdar shirt. Neither the colour of the shirt which was produced by the Investigating Officer before the Learned MM is mentioned nor it has been mentioned that how many sample shirts were produced by the Investigating Officer for mixing with the case property. The placement of the case property amongst the sample shirts has also not been mentioned in the proceedings so as to ascertain that how the complainant had picked up the case property out of the sample shirts. The TIP of the case property has been conducted in very casual manner.
35. From the disclosure statement of accused Raju @ Hakla Ex.PW13/A recorded on 19.04.04 and his subsequent disclosure recorded on 01.05.04, it appears that on 19.04.04, the accused had made a disclosure of having committed as many as 15 cases before the Investigating Officer of the case FIR No.224/04 U/s 21/61/85 NDPS Act & Arms Act of police station Moti Nagar. In the disclosure statement, the accused had given the number of vehicles of which were stolen by him as well as the places where the offences were committed. The said incidents are ranging over a period of about 45 months prior to making the said disclosure statements. It seems that the accused was suffering from some kind of guilt conscious that he was eagerly waiting to disclose about the alleged offences to police after his arrest. Similarly, accused Bijender @ Lala @ Pahalwan vide Ex.PW8/A had SC:95 /09 State vs. Raju @ Hakla & Anr.
:20:made disclosure statement of as many as nine offences. It is highly improbable that accused persons who if actually were involved in so many crimes would suddenly confess about their involvement in so many cases on their arrest.
36. DD No.24B Ex.PW4/A reveals that while giving the information about arrest of accused Raju @ Hakla, the Duty Officer from police station Moti Nagar has also given the FIR number of the present case for which the accused Raju @ Hakla had made the disclosure statement before the police of police station Moti Nagar. It is beyond comprehension as to how the police of police station Moti Nagar came to know about the FIR number of the present case as in the disclosure statement, no FIR number or the offence has been committed under which Section by the accused is mentioned. The prosecution has not been able to explain the said fact. Thus, all these circumstances raise a very strong suspicion about the correctness of the prosecution case against both the accused persons.
37. To sum up, there are various major lacunas as pointed out above in the prosecution case, the benefit of which is necessarily is to be given to the accused persons. Accordingly, both the accused persons are acquitted from the charge as framed against them. Their bail bonds stand canceled. Sureties be discharged. File be consigned to Record Room. Announced in the Open Court On 17.04.10.
(Shalinder Kaur) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC:95 /09 State vs. Raju @ Hakla & Anr.
:21: State Vs Raju @ Hakla FIR No. 89/04 PS : Patel Nagar SC No. : 95/09 17.04.10 Present : Sh. Mohd. Iqrar, Learned APP for State. Both accused on bail.
Ms. Suman Kapoor - Counsel for accused Bijender @ Lala. Vide judgment announced of even date on separate sheets, both the accused persons are acquitted from the charge as framed against them. Their bail bonds stand canceled. Sureties be discharged.
File be consigned to Record Room.
(SHALINDER KAUR) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC:95 /09 State vs. Raju @ Hakla & Anr.