Delhi District Court
State vs . Rahul Jain @ Rohan @ Sonu Etc on 17 December, 2012
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS)
DWARKA COURTS, NEW DELHI
SC No.13/01/10
FIR No.284/08
U/s 392/397/411/34 IPC
PS Naraina
State
Vs.
1. Rahul Jain @ Rohan @ Sonu s/o Ajit Kr Jain
2. Rattan @ Bittoo s/o Sh Mithu Nath
3. Sanjay Yadav s/o Sh.Kedar Nath
.......... Accused
Challan filed on 21.03.2009
Reserved for order on : 11.12.2012
Judgment delivered on :17.12.2012
JUDGMENT
Briefly stated the facts of the prosecution case are that on 18.11.08 on receipt of DD no.32A copy of which is Ex.PW7/A, ASI Om Prakash reached at Brar Square, Ring Road, Naraina where complainant Arvind Kumar met him. He was brought to PS where he State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.1 of 56 came &written complaint Ex.PW2/A alleging that he deboarded from Shatabadi Express at Delhi Cantt Station with ExMember of Parliament Dr. Mahesh Chander Sharma on 18.11.2008. Dr. Sharma dropped him in his car while going to his house at Brar Square, Ring Road, Naraina, Near Uturn. He was dropped on other side of the road and he was crossing the road at about 10.30 p.m. At that time two young boys aged about 25 years came to him after getting down from a car. One of the boy put a pistol on his waist and another snatched his suitcase, HCL laptop, purse, gold chain and NOKIA N72 mobile. Two bikers who were coming from behind saw this incident and took him to the other side of road. Thereafter police van removed him to PS Naraina. He can identify those boys. On this complaint, the present case was registered. On the basis of secret information accused persons were arrested in FIR no.312/08 PS Vikaspuri from GT Karnal Road and they made disclosure statement about the commission of offence of the present case. They were formally arrested in this case. The investigation was done and after completion of the investigation, accused persons were challaned to the court.
2. This case being triable by the court of session, after State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.2 of 56 committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 01.04.09.
3. The charge against the accused Rattan @ Mintu was framed u/s 397 IPC and Rahul Jain @ Rohan @ Sonu and Sanjay Yadav were charged u/s 392/34 IPC on 20.08.2009 by my Ld. Predecessor Ms. Ravinder Kaur, the then Ld. ASJ to which all the three accused persons pleaded not guilty and claimed trial.
4. The prosecution to prove its case against the accused persons, in all has examined as many as 11 witnesses.
5. PW1 HC Amar Singh has deposed that on 02.01.2009 he came to Dwarka with IO to arrest accused Sanjay Yadav and Rattan. He does not remember from which court both the accused were arrested by IO. Both the accused were summoned by the concerned court on production warrants. IO had only prepared the arrest memos of the accused persons and he signed on them. The arrest memo of accused Rattan is Ex.PW1/A and arrest memo of Sanjay Yadav is Ex.PW1/B. He could not correctly identify the accused persons. He was declared hostile by the Ld. Prosecutor and on the pointing out State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.3 of 56 of Ld. Prosecutor he identified both the accused.
6. PW2 Arvind Singh is the complainant in this case and he has stated about the incident which had taken place with him. He proved his statement Ex.PW2/A. He handed over the cash memo of mobile to IO vide seizure memo Ex.PW2/B. He identified the accused persons and stated that after about one month of the incident, he was informed by the police about the recovery of his strolley, bag, laptop and mobile phone which he got released on superdari.
7. PW3 ASI Malkiat Singh has deposed that on 18.11.08 a PCR call through wireless operator was received at about 10.47 p.m on the basis of which he recorded DD no.32A copy of which is Ex.PW3/A. He has further stated that on 19.12.08 he received rukka on the basis of which he recorded FIR no.284/08 u/s 392/34 IPC. The FIR was recorded on computer.
8. PW4 SI Bir Pal Singh has deposed that on 19.12.08 at about 10 a.m, a secret information was received by ASI Manoj to the effect that the looted car which was case property of FIR no. 312/08 State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.4 of 56 PS Vikaspuri would be used by the robbers for commission of some crime and to sell the same in Haryana via Singhu Border and if nakabandi is made the robbers can be apprehended alongwith car. On the direction of SI Rajkumar raiding party was formed consisting of SI Manoj, SI Bir Singh, ASI Nirakar, ASI Balvinder, Singh, HC Ved Parkash, HC Jai Bhagwan, Ct. Pawan Kumar, Ct. Jogender, Ct. Dharmender and on another constable and after recording the secret information in DD registered the raiding party reached at the spot. On the way 78 passersby were requested to join the raiding party but none was ready. At about 12 noon, one I10 car bearing registration no. DL3C ND 6075 was spotted which was pointed out by the secret informer. It was stopped and five persons were found traveling, the names of whose revealed as Rajesh Kumar @ Vijay and the person sitting on adjoining seat to the driver seat was Rahul Jain @ Sonu. The persons sitting in the rear seat was Rattan @ Mintoo, Ravikant and Junaid Qureshi. He has further deposed that from the personal search of accused Rattan @ Mintoo, one loaded desi katta of .315 bore was recovered from his left dub of his pant with one live cartridge of .315 bore from right pocket. From the personal search of Junail one desi katta,from accused Ravi Kant one buttondar knife and from personal search of accused Rahul Jain one State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.5 of 56 dagger was recovered. The sketch of the weapons were prepared and these were sealed with the seal of MKY. All the accused persons were arrested. They were interrogated and their disclosure statements were recorded wherein they had disclosed that they had robbed and stolen many articles and Rahul Jain had given the said vehicle to one Raghubir Singh @ Sahil. All the accused had further disclosed that even today they were going to give I10 car to Raghubir Singh @ Sahil tenant at the house of Rajender jat of Peepli, Kurukshetra. They led the police party to Peepli where at the pointing out of Rahul Jain, Raghubir Singh was apprehended who got recovered one motorcycle parked outside his house which was sold to him by Rahul Jain after theft. Accused Rahul Jain pointed out his house at Jain Nagar, Karala and produced one laptop of HCL which was lying in one black colour bag and one strolley bag of black colour made of rexine having sticker of American Tourist from the box of his bed. It was seized u/s 102 Cr.PC. The accused disclosed that these items were looted from one person at Naraina when they had come to the said place from Faridabad in one stolen car and at that time Rattan, Rahul and Sanjay were present. Other items like several mobiles, keys of vehicles, credit cards, laptops were seized u/s 102 Cr.PC which were not belonging to the present case. He has further State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.6 of 56 deposed that accused Rattan @ Minto led the police party to his house at G361 Mangolpuri and produced one rexine bag containing one mobile phone make N72 Nokia and disclosed that it was robbed from one person at Naraina. The same was seized vide memo Ex.PW/K and seizure memo of desi katta is Ex.PW6/A. The seizure memo of mobile phone is Ex.PW6/L. The seizure memo of strolley bag is Ex.PW6/J. He has further deposed that accused Rahul and Rattan were arrested vide memo Ex.PW6/C and D and their personal search were conducted vide memo Ex.PW6/E and F. The disclosure statements are Ex.PW6/G and H. The case property was deposited in malkhana. He again joined the investigation on 20.12.08 of FIR no. 312/08 with SI Manoj Kr. On that day accused Rattan and Rahul led them to JJ Colony Jhuggies at Wazirpur, Shahid Sukhdev Nagar and pointed out jhuggi no. 372 and on their pointing out accused Sanjay was apprehended. He was arrested vide memo Ex.PW6/M and his personal search was conducted vide memo E.PW6/N. He got recovered four credit cards from the almirah. The said cards were seized in FIR no. 312/08. The disclosure statement of accused Sanjay Ex.PW6/P. The accused pointed out the spot vide memo Ex.PW6/R. The pointing out was prepared on 20.12.08 but IO inadvertently mentioned the date as 19.12.08. In cross examination State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.7 of 56 he has deposed that the secret information was received at 10/10.05 a.m and they left the office at about 10.20 a.m and reached Narela more at about 11.30 a.m. At Singhu border they reached at 11.45 a.m. The members of the raiding party were in two vehicles. As soon as he saw the kattas and the cartridges, he came to know that they were of .315 bore being police officials and also because he was posted in armory during his service. He denied the suggestion that no katta, dagger and knife were recovered. He denied the suggestion that accused persons were beaten up and forced to given their disclosure statements. The disclosure statements of all the five persons apprehended there, were recorded between 2.35 p.m to 3 p.m. The accused were apprehended at 12 noon. They remained at Singhu border till about 2.45/3 p.m. He cannot tell in whose handwriting the disclosure statement of accused persons in case FIR no.312/08 was recorded. He cannot say if some of the disclosure statements were written by IO and some were written by other police officials. He cannot tell the distance between Pipli, Kurukshetra and Singhu Border. They left Singhu Border at about 3/3.30 p.m. They reached Pipli at about 6 p.m. They had not made entry in the local PS at Pipli. Raghubir Singh met them on road in front of liquor shop and was pointed out by accused Rahul Jain. He was pointed out since he was State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.8 of 56 present there to take the delivery of looted i10 car as already pre decided by accused persons. After apprehension of accused Raghubir he got recovered the motorcycle on which he had reached there. Thereafter one car was recovered which was parked infront of his house and disclosed that it was purchased from Rahul Jain for Rs. 30,000/. They left Pipli at 7 p.m on 19.12.2008 and reached at the house of Rahul at 10 p.m via Singhu border. He does not recollect at that time they reached at Singhu border. He cannot admit or deny if distance between Karala and Nangloi is 12 km. When they reached at the house of Rahul Jain, he got recovered as stated by him in his examination in chief. No body was present in his house.Accused Rahul was arrested from Singhu border and information about arrest was given to his father. He admitted that the time of arrest of accused is 2.35 p.m and they left Singhu border at about 3/3.30 p.m. The case property of the present case was also recovered from the house of accused i.e. HCL laptop with charger, laptop bag and strolley bag. They reached at the house of accused Rattan at 11 p.m at Mangolpuri. They remained there for 1015 minutes and only one mobile was recovered from accused Rattan. No one was present at the house of Rattan. The house was found locked and he had opened the same. The seizure memo was signed by him, ASI Nirakar and State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.9 of 56 accused. No independent witness was joined in the proceedings as none was available. Accused Rattan was arrested from Singhu Border and IO had given information regarding his arrest to someone but he does not know to whom. Several articles were recovered from the possessions of accused in FIR no.312/08. .They left the house of Rattan at 11/11.15 p.m and went to Malkahna where the IO deposited the case property. They reached in their office at about 11.55 p.m. ON 20.12.08 they went to the house of Sanjay yadav at about 7 a.m and arrested him. No one else was present at his house His father was informed about his arrest. Some credit cards were recovered from the house of accused Sanjay Yadav. Again said four credit cards and two mobile phones were got recovered from the almirah of his house. 8 credit cards were recovered from the pocket of his pant which were relating to two different cases registered in PS Keshav Puram. He denied the suggestion that all the three accused persons were lifted on 18.12.08 from Jaipur Golden Hospital where the wife of accused Rahul Jain was admitted. He denied the suggestion that the articles which were recovered has been planted upon them. He denied the suggestion that pointing out memo Ex.PW6/R was prepared on 19.12.08 vol. The same was prepared on 20.12.08 but the date was wrongly mentioned as 19.12.08.
State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.10 of 56
9. PW5 HC Subhash Chander has deposed that on 19.12.09 he was posted as MHCM and on that day SI Manoj Kumar had deposited the case property in malkhana vide various seizure memos including the case property of present case FIR no. 284/08 PS Naraina vide seizure memo of mobile phone make NOKIA N72 u/s 102 Cr.PC. One laptop of HCL in a rexine bag was also deposited. He made entry Ex.PW5/A. He has further deposed that on 20.01.2009 the said laptop and mobile phone was sent to ASI OM Prakash vide RC no.4/21. In cross examination he has stated that the case property was sealed with the seal of MKY and he does not know if the same was counter sealed by ASI Om Prakash or not. He admitted that entry no.3882 Ex.PW5/A does not bear his signature VOL. the MHCM do not sign the relevant entries. The seal of MKY was not deposited in his custody. He admitted that signatures of ASI Om Prakash was not obtained on register no.21. He admitted that vide the aforesaid entry the case property recovered from the accused persons arrested in case FIR no. 312/08 PS Vikas Puri was deposited. Signatures of SI Manoj was not obtained against the said entry.
10. PW6 ASI Nirakar Kaushik has deposed that on19.12.08 State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.11 of 56 secret information was received by SI Manoj regarding robbers of FIR no.312/08 and raiding party was constituted and reached at the spot. At about 12 noon i10 car bearing registration no. 4C ND 6075 came which was stopped on the pointing out of secret informer and on driver one boy Rajesh @ Vijay was sitting. On adjoining seat Rahul Jain and three persons were sitting at the rear seat named Rattan, Ravi Kant and Junaid Quereshi. He has further deposed that loaded kattas from accused Rattan, and Junaid were recovered and one dagger and buttondar knife were recovered from Rahul and Ravikant. The sketch of the same were prepared and the same were seized alongwith car i10. The seizure memos are Ex.PW6/A and B. The copy of the arrest memos of accused Rattan and Rahul are Ex.PW6/C and D and personal search memos are Ex.PW6/E and F. Their disclosure statements are Ex.PW6/G and H. He has further deposed about going to Pipli from where one accused Raghubir @ Sahil was arrested and one Skoda car and pulsar motorcycle was recovered. He further deposed about coming back to Delhi and reaching at the house of accused Rahul and recovery of one stroller bag, one HCL Laptop with charger from his house which was seized u/s 102 Cr.PC. The seizure memos are Ex.PW6/J and K. He further deposed about recovery of one mobile Nokia N72 from the house of State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.12 of 56 accused Rattan. The same were sealed and seized vide memo Ex.PW6/L. The case property was deposited in malkhana. On 20.12.08 accused Rahul and Rattan took the police party to the house of accused Sanjay Yadav who was arrested vide memo Ex.PW6/M and his personal search was conducted vide memo ex.PW6/N. His disclosure statement is Ex.PW6/P. From the search of accused Sanjay yadav one mobile phone and eight credit cards in different names were recovered. He identified all the accused persons present in the court. He identified the stroller bag Ex.P1, laptop with charger Ex.P2, mobile phone make Nokia Ex.P3. On 19.12.08 accused persons had pointed out the place of incident. In cross examination he has stated that they left office at about 10.20 a.m. DD no.3 was recorded They went in two vehicles. They reached Narela more at about 11.30 a.m and after 15 minutes reached at Singhu Border. IO asked 56 persons to join at Narela more but they refused. IO had not tried to include public witnesses at Singhu Border. Accused persons were apprehended at 12 noon. They remained at Singhu border till 2.30 p.m - 2.45 p.m. At Singhu border they prepared seizure memos of golden kada, rolex watch and i10 car. It was observed in the cross examination of this witness that document ex.PW6/A could not have been exhibited in his testimony as it does not bear his signature. The State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.13 of 56 disclosure statements were recorded by different police officials. Again said SI Manoj had interrogated all the accused persons and had noted down whatever had disclosed by them and thereafter he dictated the disclosure statement of the accused persons one after another. SI Manoj did not write in his hand so far he remember. The registration number of i10 car was DL 4C ND 6075 which was got stopped about 100 meters before Singhu Border. He does not recollect exactly which car of the police party was put in front and which in the back side of i10 car. He denied the suggestion that no car was stopped by the police party on that day near Singhu Border. Accused Sanjay was not present in i10 on that day. NO guardian or parents of accused Rattan Kumar and Rahul Jain were called at the spot at that time. Vol. They were telephonically informed. So far as he remember, father of accused Rahul Jain had reached there on being informed. Perhaps his name is Sh Mithan Singh. The disclosure statements of the accused persons were recorded then and there and he signed on them. They reached Pipli at about 5.45 - 6 p.m. They went in three cars. No assistance of local police was taken. No entry was made in any PS for carrying out raid. Raghuvir Singh was arrested from Pipli. They left Pipli at about 7 - 7.30 p.m. They reached back at Delhi at 10 p.m From the house of accused Rahul State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.14 of 56 Jain Laptop, stroller bag, keys, mobile phone, debit/credit car and PAN Card were recovered. He does not remember if any relative, neighbour or friend of Rahul met them there. Again said his father had reached there after some time. He does not remember if he had signed on any seizure memo. From the house of Rattan, one mobile phone relating to the present case and 12 debit cards were recovered. Only landlord of accused was present downstairs but he refused to sign on any paper. He further stated about recovery effected from each accused, weapons recovered as well as recovery effected from Pipli. They went to the house of Junaid from the house of Rattan. SI Manoj had deposited the case property in malkhana and no body else had accompanied him. On 20.12.08 he alongwith IO and accused Rahul and Rattan went to the house of Sanjay and remained there for 1015 minutes where some neighbourers, friends and relatives gathered. From his house 78 debit cards were recovered. He does not recollect whether anyone had signed on the arrest memo, seizure memo, personal search memo and disclosure statements of accused. The pointing out memos were prepared in this case on 20.12.08.
11. PW7 ASI Om Prakash is the first IO of this case and he State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.15 of 56 has deposed that on 18.11.08 on receipt of DD no.32 Ex.PW7/A he alongwith Ct. Lallan reached at Brar Square, Ring Road, Naraina and found complainant Arvind Singh in disturbed condition. He was brought to PS. He gave written complaint Ex.PW2/A and it was kept pending vide DD no.38B as the complainant was in confused state of mind. On 19.11.08 he prepared rukka Ex.PW7/B and got FIR no. 248/08 registered. In answer to court question, on the same complaint after the complainant had added one line on 19.11.08, the case was registered. He recorded supplementary statement of complainant and he also handed over a slip of Citi bank dated 18.11.08 against said on 19.11.08 he recorded supplementary statement. Again on 27.11.08 he recorded supplementary statement as he had handed over the slip of Citibank dated 18.11.08 as through credit card the patrol was filled by accused persons from Chankyapuri Service Station, District Centre Road no.24 Paschim Vihar. The said slip was obtained by the complainant from citibank. The complainant also handed over bill of his Nokia Mobile phone. The same were seized vide memo Ex.PW2/B. The sketch of two persons Ex.PX and PX1 whose description was given by the complainant who had robbed him was got prepared on 15.12.08 from the State Crime Record Bureau. In answer to court question the State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.16 of 56 complainant had disclosed the description of robbers on 18.11.08 itself which was not recorded by him anywhere. He searched the accused persons but they could not be traced out. He has further deposed that on 20.12.08 an information was received that three boys who had robbed someone at Uturn, Naraina were arrested in case FIR no. 312/08. It was recorded in DD no.19A Ex.PW6/D. He obtained the production warrants from the concerned court vide application Ex.PW7/E which was allowed on 2.1.09. He collected the documents of FIR no.312/08 mark PX2 and seizure memo of car is mark PX3 and in which accused had filled petrol from credit card.The copy of seizure memos is Ex.PW6/J,L,K and copy of seizure memo of desi kata with two cartridges is Ex.PW6/A and B. The arrest memo and personal search memo is Ex.PW6/C,D, M, E,F and N and disclosure statements are Ex.PW6/GH and P. The pointing out memo of the present case prepared by SI Manoj Kumar at the instance of accused persons is Ex.PW6/R. ON 2.1.09 he moved an application for interrogation and arrest of accused persons and he arrested them vide memo Ex.PW1/A. Accused Rahul was not produced and Ld.MM Sh Sumit Das directed him to arrest accused Rahul from Jail. He went to jail and arrested accused vide arrest memo ex.PW7/H. Ct.Jai Singh of Tihar Jail was present at the time State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.17 of 56 of arrest of accused Rahul Jain. He collected the case property on 20.1.09 and deposited the same in malkhana. The case property was one rexine bag, laptop make HCL, Nokia Mobile phone N72. He deposited the same in the custody of MHCM HC Ramesh. He was declared hostile by the Ld. APP for the State and cross examined wherein he has admitted that he had moved an application for obtaining the mobile call record of phone no. 9953075633 belonging to Arvind Singh, complainant and the computerized copy of the same is Ex.PW7/A1 to Ex.PW7/A2. He served notice u/s 91 Cr.PC to the complainant. He admitted that on 14.1.09 he recorded the disclosure statements of accused persons which are Ex.PW7/K, L and M. He volunteered that complainant came to PS and identified the accused and had specifically assigned specific role to each of them and he recorded his supplementary statement. He admitted that he moved an application for TIP of accused and also for TIP of case property vide application Ex.PW7/O and P. He admitted that he got the TIP of accused Sanjay Yadav conducted on 7.1.09 and complainant identified the accused in TIP. He has further deposed that accused Rahul and Rattan have refused to participate in the TIP. He admitted that he recorded the statements of witnesses. In cross examination he has stated that they reached at the spot within 15 State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.18 of 56 minutes of receipt of call. Except complainant none was present. At the direction of SHO he took written complaint from complainant. SHO directed him to keep the complaint pending. No proceedings were conducted during the period he returned to PS from the spot on 18.11.08 till 5.05 p.m on 19.11.08. Site plan was prepared on 19.11.08 at 6 p.m at the instance of complainant. He denied the suggestion that he had wrongly shown the place of incident in the site plan Ex.PW7/C. The incident had taken place at U turn as shown in the site plan. Complainant disclosed him that two persons had robbed him. He has further stated that on 18.11.08 complainant had disclosed that he was robbed by two persons. On 19.11.08 he further informed that one more person was there who was sitting in the car. There was street light on the road at the spot and spot was clearly visible. Complainant also disclosed him that there was Rs.2200/ in the stroller bag. The complainant could not furnish the receipt of gold chain. He does not remember as to when the complainant had furnished the slip issued from Citibank. The said slip pertains to filling of petrol in car no. DL 6 CH 2041. The complainant did not inform him from where he arranged the said slip. He did not get the signatures at point B verified from anywhere. He does not know who had signed the slip. The complainant informed him that citibank State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.19 of 56 officials informed him that his card was used at petrol pump at Chankyapuri Service Station Paschim Viihar in the night of 18.11.2008. He had tried to obtain the CCTV footage of the relevant time from the petrol pump but they refused to provide the same and informed him that their CCTV camera was out of order for the last 10 days. He did not try to very the authenticity of the photocopy of mobile bill of complainant. He had taken the complainant to police Headquarter NCRB for the purpose of making the sketch of the accused persons. He received the information on 20.12.08 regarding arrest of present accused in FIR no. 312/08 and DD entry was made in this respect. He admitted that before applying for production warrants he obtained the copies of the relevant documents of FIR no. 312/08. He interrogated the accused after production for 10 minutes and then arrested. He admitted that two different pens were used for preparing the arrest memos but both the arrest memos are in his handwriting. Some of the columns of the arrest memos were filled up at the PS and rest in the court at the time of arrest and that is the reason why two pens were used. Vol. Generally they have very little time to complete the formalities in the court. Accused Rahul was arrested from Tihar on 6.1.2009. He does not remember the jail number. He has not moved any application before the Jail State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.20 of 56 Superintendent nor sought any permission from him to arrest the accused. Jail Superintendent called accused Rahul in his office. He simply noted the name of Ct. Jai Singh on arrest memo as witness. He signed the register of malkhana at the time of taking the articles of present case. On showing the document, he admitted that his signatures are not there on the register. He has further stated that the call details relating to the mobile of the complainant had already been obtained by SI Manoj Kumar, Special Staff in FIR no. 312/08 PS Vikaspuri. He obtained the said call details from SI Manoj Kumar and from call details it was revealed that the complainant had used the said mobile before the incident. Call details did not reveal as to when the said mobile was used after the incident. He denied the suggestion that he tortured and forced the accused to give their disclosure statements. The complainant had first time seen the accused persons on 13.1.09 in PS Naraina after the incident. The link MM had refused to conduct the TIP of the Case property. He had moved an application for TIP before Sh. Sumit Dass Ld.MM which was marked to Sh Rajender Kumar Ld.MM but orally he refused to conduct the TIP of the case property. Ld. Link MM had not given any reason for refusal.
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12. PW8 ASI Malkiat Singh has deposed that he received information at about 10.47 p.m that a laptop and a suitcase has been snatched from a person at Brar Square and there were four persons in the said car. He recorded DD no.32A which is Ex.PW7/A. The said DD was handed over to ASI Om Prakash who alongwith Ct. Lallan went to the spot. He further deposed that on 19.11.08 ASI Om Prakash handed over rukka Ex.PW7/B to him on the basis of which he recorded FIR Ex.PW8/A. In cross examination he has stated that the information was received by him from wireless operator. The FIR was registered on the next day of incident i.e. 19.11.08. DD no.32 is in his handwriting. He admitted that DD no.32A Ex.PW7/A does not bear his signatures.
13. PW9 Sh Rajender Singh, Ld. MM has conducted the TIP of the accused and stated that accused Rahul Jain refused to participate in the TIP on 7.1.09. He further stated that accused Sanjay Yadav was identified by complainant Arvind Kumar. He has further deposed that on 12.1.09 accused Rattan @ Bittoo refused to participate in the TIP. In cross examination he has stated that he cannot reply if the TIP was not conducted by him in the TIP room because today he does not recollect the place. He did not ask the IO State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.22 of 56 whether he exposed the accused persons to the witness. He did not ask the witness Arvind Singh whether he had seen the accused Sanjay Yadav after the date of incident and before his TIP. The witness only pointed out towards the accused Sanjay Yadav at the time of identifying him in the TIP proceeding, but he did not disclose him anything about his act. He did not check the identify of the witness.
14. PW10 SI Manoj Kumar has deposed that on 19.12.08 he was entrusted the investigation of FIR no. 312/08 and he received secret information which he brought in the notice of Insp.Raj Kumar and it was reduced into writing in DD no.3. A raiding party was formed and left the office at 10.20 a.m and reached police picket Narela at 11.30 a.m where 78 public persons were asked to join the raiding party but they refused. They laid trap on G.T. Karnal Road near DTC bus stand about 100 yards before Singhu Border and at about 12 noon one i10 car no. DL 3CND 6075 came and secret informer pointed out the said car . The car was intercepted and five persons were apprehended who were sitting in the car. He further deposed that Rajesh @ Vijay, Rahul Jain @ Sonu were on front seat and Rattan @ Mintu, Junaid Qureshi and Ravikant were sitting at the State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.23 of 56 rear seat. He further deposed about recovery of desi katta with one live cartridge from accused Rattan, one desi katta with one live cartridge from accused Junaid Qureshi, one daggar from accused Rahul and one buttondar knife from accused Ravikant. The same were seized and accused persons were interrogated. The disclosure statement of accused Rattan is Ex.PW6/G and of Rahul Jain is Ex.PW6/H. He has further deposed that accused Rahul Jain led the police party to his house at Karala and from 'diwan' bed he produced one strolley bag of rexin, one laptop having sticker of Compaq containing HCL laptop with charger and informed that these were robbed from U turn, infront of Brar Square, Ring Road, Naraina with the help of Rattan and Sanjay. The said articles were seized. Vide memo Ex.PW6/K. Accused Rattan also led the police party to his house where he produced one mobile phone make N72 and informed that it was robbed with his associates Rattan and Sanjay Yadav about one month ago from U turn of Brar Square. It was seized vide memo Ex.PW6/L. He has further deposed that on 20.12.08 in pursuance of the disclosure statement of accused Rahul and Rattan they reached at jhuggi at Shaheed Sukhdev Singh Nagar and on the pointing of the accused persons, accused Sanjay Yadav was apprehended and interrogated and some credit cards and mobile State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.24 of 56 phones were recovered which were seized vide memo Ex.PW6/P. Accused Sanjay was arrested and thereafter accused persons pointed out towards Uturn in front of Brar Square, Ring Road, Naraina where they robbed one person about one month ago. The pointing out memo is Ex.PW6/R. He has stated that inadvertently, he had mentioned the date on pointing out memo as 19.12.2008. He has further deposed that the accused persons have disclosed that they had robbed a man in maruti zen car stolen from Faridabad and put fake number plate as DL 5CH 2041 and after committing robbery at Vikaspuri they had left at outer ring road and from there they had robbed i10 car no. DL 3CND 6075. Maruti zen car bearing number plate DL 6CH 2041 had already been recovered from the spot of case FIR no. 312/08 and seized vide memo Ex.PW10/A. He informed PS Naraina regarding the arrest of accused persons and the recoveries made by him relating to case FIR no. 248/08. He handed over the copies of all the relevant documents to IO. His statement was recorded by the IO of this case He identified the case property. In cross examination he has stated that investigation was handed over to him on 18.12.2008 and secret information was received on 19.12.2008. They reached from their office at Tagore Garden to Singhu Border straight and did not stop on the way. He had asked the State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.25 of 56 public persons at Singhu border to join the proceedings but they refused. When the secret informer informed them that i10 car was coming from the side of Delhi, they placed the Innova car infront of i10 car and Maruti car behind the same. The seal of MKY belongs to him. The said seal remains with him generally but after its use it is handed over to some other police officials during investigation. After completion of the formalities of a particular case, the concerned official returns the seal to him. In seizure memo they mention that the seal is handed over to a particular official. Again said this fact is mentioned in the seizure memo or in the case diary. The impression of the seal is never put on seizure memo. The accused persons were apprehended at about 12 noon at Singhu Border. Arrest memo of Rahul Jain was prepared at 2.35 p.m and intimation of his arrest was sent to his father by phone. The father of accused had not visited the place of his arrest. He has stated that the signatures of father of accused Rahul Jain were obtained on the arrest memo when they had gone to his house for effecting the recovery. Information about arrest of accused Rattan was sent to his parents through concerned SSP, UP. They reached at the house of Rahul Jain at about 9.30 or 10 p.m. The seizure memos were prepared at his house. When they finished the proceedings, his father had come there. A strolley bag, laptop, State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.26 of 56 charger were recovered from the house of accused Rahul Jain. He did not find any independent witness or any relative at the house of accused Rattan. He recovered mobile phone pertaining to this case from the house of accused Rattan. He deposited eight sealed pullandas, three bags, two cars, three motorcycles, credit cum debit cards, mobiles phones etc in malkhana. He did not find any independent witness at the house of accused Sanjay. A mobile phone and some cash was recovered from the personal search of accused Sanjay. He denied the suggestion that all the three accused were lifted from Jaipur Golden Hospital Rohini at about 4 p.m on 18.12.08. He denied that all the documents were prepared in the PS and hence did not bear the signature of any independent witness. He denied the suggestion that the articles which he has deposed to have been recovered at the instance of accused persons, were planted upon them. He denied the suggestion that pointing out memo Ex.PW6/R was prepared on 19.12.08 vol. It was prepared on 20.12.08. He informed about the arrest of accused persons to the IO of the present case on 20.12.08
15. PW11 HC Ramesh Kumar has deposed that on 20.1.09 he was posted as MHCM with PS Naraina when ASI Om Prakash State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.27 of 56 brought the case property recovered in FIR no. 312/08 and deposited with him one mobile phone of make NOKIA, laptop HCL with charger, Rexine bag against which he made entry at sr.no.783 in register no.19, the copy of which is Ex.PW11/A. He has further deposed that on 5.2.09 the said items were released on superdari. In cross examination he has stated that entry no.783 was made by his munsi.
16. The evidence against the accused persons were put to them in their statements recorded u/s 313 Cr.P.C in which they have pleaded their innocence and deposed that they have been falsely implicated in this case after lifting from Jaipur Golden Hospital where the wife of Rahul Jain was admitted and booked them in various false cases.No incriminating articles was recovered from them. They opted to lead the defence evidence and examined five witnesses.
17. DW1 Dr.S.N.Basu has deposed that he has brought the summoned record of discharge summary of patient Kavita Jain w/o Rahul Jain who was admitted on 14.12.08 with 38 weeks pregnancy and she was discharged on 18.12.08. The photocopy of discharge State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.28 of 56 summary is Ex.DW1/A. He does not know if the husband of the said patient namely Rahul Jain was kidnapped from the premises of the hospital alongwith his two friends namely Rattan and Sanjay. In cross examination he has stated that he did not report any matter of any kidnapping or lifting of any person from hospital on 18.12.08
18. DW2 Dr.Seema Jain has also deposed about admission and discharge dates of patient Kavita Jain. She treated her. She has stated that since four years have passed, it is difficult for her to identify Rahul Jain. She is not aware if on 18.12.08 in her presence Rahul Jain and his two friends were kidnapped from hospital. She does not remember if she had heard that on 18.12.08 Rahul Jain alongwith his two friends were lifted by the police from the hospital premises. In cross examination she has stated that she did not lodge any report of lifting or kidnapping of any person on 18.12.2008.
19. DW3 ASI Jagat Singh has produced the certified copy of record of PCR form which was made after making call on 100 number on 19.12.2008 at 02.12.57 a.m/2.26.53 a.m made by one person namely Sajid from Mobile no. 9268335925 from S2 Market, Jahangirpuri. AS per record the said record has been destroyed by State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.29 of 56 the order of Addl.DCP(GA). In cross examination conducted by the Ld. Defence counsel he has denied the suggestion that summoned record is still lying in PCR record room, Mangolpuri. He admitted that the record produced by him today is not a certified copy of the original and it is also correct that it does not bear the seal of his department. He admitted that he did not search the aforesaid record in the office. Vol. As per order it has been destroyed.
20. DW4 HC Bhajan Lal has deposed that he was summoned to produce the certified copy of DD entries/rojnamcha dated 18.12.08 maintained in PS Rohini and more particularly the DD entry made on call received on 100 number from the vicinity of Jaipur Golden Hospital stating that some incident had taken place. He has brought DD no.19A dated 18.12.08. As per this DD it was informed from phone no. 27906127 from Jaipur Golden Hospital that one person has been lifted by vehicle no. UP 14 AH 1856 and it was not known who was the said boy lifted. It was further informed that when the said vehicle was stopped by guard, the said person disclosed themselves to be police officials from UP. The copy of DD is Ex.DW4/A and this information was given to SI Subhash telephonically. SI Subhash after arrival recorded DD no.26A at about State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.30 of 56 11.50 p.m copy of which is Ex.DW4/B . It was recorded by SI Subhash on his return that one person namely Rahul was lifted by some person and DD was lodged by Rakesh Ghera who had left after his off as he was working as security guard in the hospital. He has further deposed that from the reception of the hospital it was revealed that the lady Smt. Kavita w/o Rahul Jain who was lifted from the hospital, was admitted in the hospital and she had delivered a male child vide DD it was also report that the statement of said security guard was also recorded by SI Subhash mentioning the entire details of the incident recorded vide DD no.19A and 26A. In cross examination he has stated that he has no personal knowledge regarding the aforesaid DDs or their contents. Neither the said DDs were in his handwriting nor recorded in his presence or tenure.
21. DW5 Rahul Jain, accused himself has deposed that on 18.12.08 he was present near Jaipur Golden Hospital between 3 to 4 p.m and at that time some police officials came in civil clothes and took him. At that time his friends Rajesh, Ramnath, Rattan and Sanjay were with him and they were also lifted by the police. When alarm was raised by them and security guard, they disclosed that they are police personnels and they took in TATA vehicle no.407 and State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.31 of 56 took to PS Tagore Garden. They were told that they had snatched one Hyndai i10 and thereafter they were beaten and put up in the lock up. ON 20.12.08 they were produced in the court and remanded to JC. During their stay over there, the police officials obtained their signatures on some blank sheets and also took their photographs from their mobile phones. They had no knowledge about the present case and they have been falsely implicated in this case. In cross examination he has stated that he was present in the hospital for the delivery of his wife. No lady member was present in the hospital at that time. Vol. His mother in law was there. No action was taken by his mother in law at that time vol. Because she was upstairs and he does not know whether she had taken any action or not. He denied the suggestion that he had robbed someone at Brar square on 18.11.2008 with co accused Rattan and Sanjay. His wife was blessed with one male child on 14.12.08 and she was operated for the delivery. He admitted that he did not lodge any complaint to the senior police officers regarding his false implication in this case as he was in JC. His family members made complaint to PS Rohini. But he is unable to bring the copy of the said complaint today. He admitted that he was confined to jail for last about four years and it is the facility available in jail to send any bail application in the court State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.32 of 56 of law and other documents. No lawyer is provided by jail authority to the inmates who are lodged in high risk zone.
22. I have heard Ld APP for the State as well as Ld. defence counsel and perused the testimonies of all the PWS and exhibited documents carefully.
23. In the overall analysis of the testimonies of all the witnesses it is revealed that PW2 Arvind Singh is the complainant and he has stated that on 18.11.2008 he had come to Delhi from Jaipur via Shatabadi Express alongwith Dr. Mahesh Chander Sharma around 10 p.m and he accompanied in his vehicle which dropped him at Brar Square on the right side of the road and vehicle of Dr.Sharma went towards Dhaula Kuan. He crossed the road again said he was about to cross the road from the divider when a car came from the side of Naraina and it was stopped by its driver near him and two persons came out of the car. One such person came from the seat adjoining the driver seat and the other person was sitting at rear seat and he came out of the car from the right side door. The boy who came from the front seat of the car came near him and kept pistol on his left waist and the other boy stood on his other side. Both the boys State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.33 of 56 abused him and threatened to kill him and told him to hand over all his belongings to them. They snatched his strolley bag, the bag containing his laptop, his mobile phone Nokia N72 and his purse containing some cash, debit cards, pan card, driving licence and one of those boys pulled his gold chain which he was wearing at that time. Out of those two boys, he had later on identified one boy in TIP and his name was told to him as Sanjay Yadav. He can identify the other boy accompanying Sanjay Yadav at that time. There was one more person in the car who was sitting on the driver seat and he had also seen him at the spot and he can identify him if shown. Since he was perturbed he could not notice their height or other particulars. He had only seen the face of the boy who was sitting at the driver seat. He has further deposed that immediately after the accused had left, two person came on motorcycle from the side of Naraina and asked him about the incident as they had seen the two boys robing him. He alongwith those two persons came on the other side of the road. In the meantime he spotted a PCR van and he informed them about the incident and they took him to PS Naraina. He had given a written complaint which is Ex.PW2/A. He has further deposed that during investigation he handed over the self attested copy of cash memo of mobile phone to IO which was seized vide memo State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.34 of 56 Ex.PW2/B. He pointed out towards accused accused Rahul that he was sitting in the car at driver seat while other two accused present in the court today (correctly identified) had robbed him of his belongings. He pointed out towards accused Rattan that he had kept pistol on his waist and accused Sanjay had snatched his belongings. He has further deposed that after about one month of the incident he was informed by the police about recovery of his strolley bag, laptop and his mobile phone which he got released on superdari. He has brought the same. The strolley bag is Ex.P1, laptop is Ex.P2 and mobile phone is Ex.P3. He brought the mobile bill dated 26.5.08 vide which he had purchased mobile Ex.P3. The copy of bill is Ex.P4. The laptop bag is Ex.P5 in which laptop Ex.P2 was kept. In cross examination he has stated that he does not possess the ticket of the court (should be train) on which he had traveled from Jaipur to Delhi on the day of incident. Police never asked him to hand over the ticket. He is not very sure about the timing of the train leaving Jaipur and reaching Delhi but approx it starts from Jaipur between 5 to 6 p.m and reaches Delhi before 10.30 p.m. He had gone to Jaipur for official work as his branch office is there. He is working with Centre for Bhartiya Marketing Development) as Dy.Director. He does not recollect the speed of car of Dr. Mahesh Chander Sharma when he State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.35 of 56 was dropped. Vol. It was driven at fast speed and they were talking to each other. Before he could ask the driver to drop him, the vehicle had already taken U turn and for this reason he was dropped on the other side of the road. Dr. Mahesh is only an acquittance since he is one of the trustees where he is working. Today is is not in a position to recollect that the place where he was dropped,the construction work of flyover or the road was going on. He did not grappled with the robbers. There was no exchange of hot words as he was abused by them and threatened to be killed. He had requested them to leave him as well as the goods which he was carrying. He did not protest since they were armed. He was not in a fit state of mind due to the incident. He was not in a position to note down the number of the vehicle nor can tell its colour. Two persons came and asked as to what had happened. He had asked the names and addresses of those two boys and they told him that they were there for his help. When PCR came there, those two persons were present with him. When he was taken by PCR, those two boys did not accompany them. After he narrated the incident to PCR official, they gave some instructions to someone on the wireless. He had one another mobile phone besides the one of which he was robbed. He does not recollect if he had any call from the said mobile to anyone from the spot. Now he does not State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.36 of 56 recollect the number of the said mobile. He does not recollect when he had made last call from the mobile before the incident of which he was robbed. The laptop was officially given. He has further stated that after the day of incident, he visited the PS several times to know about the investigation and once or twice police had also called him for seeking details about incident. Before the incident, he does not recollect exactly at what time and date he had used his IDBI bank card. He received message through police official during Dec.2008 that accused persons were arrested and goods were recovered. He went to PS on receiving the message and accused persons were not present in the PS. He was not taken to any other place. He was not shown the goods recovered. He cannot tell when he visited the PS. He is not aware if Mahesh Chander Sharma was every called to PS. He informed Mr. Mahesh and his own family about the incident from his mobile. He does not know if the police had called the two persons who had come to the spot. He denied the suggestion that before he was called for TIP, he was shown the photographs of them by the police and for the reason accused Rahul and Rattan refused to participate in TIP. He was robbed by the accused persons on the road going towards Dhaula Kuan near divider from which he had to reach to other side of the road. The distance between his house and spot is State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.37 of 56 between 2.5 km to 3 km. He does not know if the site plan was prepared by the IO in his presence when he was taken to the spot from PS, however he pointed the spot to the police. He does not remember if on 19.11.08 he was again taken by the police for the preparation of the site plan. He did not inform PCR, however, one PCR was passing through. He prepared his written complaint in PS and handed over to police. VOL. After he gave his complaint, he was informed that first they would verify the incident and then the case would be registered. He admitted that the ink used from point A to A and B to B is different from the ink used in writing of rest of the complaint. He denied that these portions were not written on the same day but on next day. He denied the suggestion that he had not given the complaint Ex.PW2/A on his first visit. He denied the suggestion that there was no light and it was very dark night at that point of time at the place of incident. He does not remember the colour and number of car. He had only mentioned in his complaint that those persons were above 25 years of age and he gave no other description. He assisted the police in preparing the sketches but he was not satisfied fully with the same as they were not matching fully with the description. He admitted that there are two sketches on file which he got prepared. He denied the suggestion that he had not seen State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.38 of 56 the third person at the spot and for this reason his sketch was not got prepared. He denied the suggestion that he identified accused Rahul in the court at the instance of IO. He denied the suggestion that he identified accused Sanjay in TIP since he was already shown to him by the IO outside. He denied the suggestion that he had been shown all the three accused in the office of special staff Tagore garden on 19.12.08 and was told to identify them in TIP. He further stated that after the incident he saw all the three accused in PS Naraina may be on 14.1.2009.
COMPLAINANT'S EVIDENCE
24. In this case PW2 Arvind is the main star witness of the prosecution as he is the victim in this case. He has stated that he came from Jaipur to Delhi with Dr. Mahesh Chander Sharma on 18.11.2008 who dropped him at Brar Square. The IO of this case has not tried to make said Dr. Mahesh Chander Sharma as witness in order to prove that PW2 Arvind had come with him on the said date or not. It was imperative for the prosecution to prove this fact since PW2 has also not handed over any train ticket to the IO of this case and no such train ticket is filed on record.
State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.39 of 56
25. PW2 has stated that in the meanwhile (after incident) he spotted a PCR van and he informed them about the incident and they they took him to the PS Naraina where he gave his written complaint Ex.PW2/A. PW7 ASI Om Prakash who is the IO of this case has stated that he alongwith Ct. Lallan reached at the spot and found complainant Arvind Singh in a very disturbed condition. He brought the complainant to PS and produced before SHO. Both PW2 and PW7 have given contradictory versions regarding reaching of PW2 complainant at the PS as complainant has stated that he was taken by PCR and IO of this case has stated that he took him to PS and produced before SHO.
26. PW2 has further stated that he was about to cross the divider when a car came from the side of Naraina and it was stopped by the driver near him and two persons came out of the car. He has alleged that those boys snatched his strolley bag, the bag containing laptop, mobile phone N72 and purse containing cash, debit card, pan card, driving licence and gold chain. He identified one of the boy in TIP and his name was told to him as Sanjay Yadav. He has assigned the role of accused Rahul that he was sitting on the driver seat and other two accused persons robbed him. He pointed out State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.40 of 56 towards accused Rattan that he had kept pistol on his waist and other accused Sanjay Yadav had snatched his belongings. Considering the statement of PW2 Arvind he has stated that accused Rahul was sitting on the driver seat. Therefore it is crystal clear that accused Rahul did not participate in the commission of present case crime. He further stated that accused Rattan pointed pistol on him and Sanjay Yadav snatched his belongings. In view of the evidence on record, it is revealed that the prosecution did not produce any pistol in this case nor it was shown to PW2 to establish that it was the same pistol which was pointed towards him. The prosecution has failed to produce any pistol in this case. As far as allegation against accused Sanjay Yadav is concerned, there is no recovery of articles belonging to complainant effected from him but to the contrary it was shown to have been recovered from accused Rahul. There is no evidence led by the prosecution that the alleged articles were given to accused Rahul. Further the defence of accused Rahul is that he was picked up by the police from Jaipur Golden Hospital alongwith his friends Rattan, Rajesh and Sanjay. This defence of accused shall be discussed a bit later.
27. PW2 Arvind (complainant) has further stated that State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.41 of 56 thereafter those two boys went away in the same car and out of those two boys he had later on identified one of the boy in Judicial TIP in jail. PW2 himself is not sure as to how many persons were there at the time of incident. Somewhere he has stated that there were two boys and thereafter he has stated that there were three boys. I have also perused the documents on record in this respect. At first, DD no. 32 was recorded vide which it was reported that 'at 10.47 p.m, Wireless Operator of PS came to DO Room and got recorded that Z63 ASI Dharamvir Singh gave information stating one person was going from Brar Square on foot and he was robbed of his suitcase and laptop and Car Zen of Silver colour went towards Dhaula Kuan in which four boys were sitting.' DD no. 19A was recorded on 20.12.2008 allegedly after apprehension of accused persons which disclose that about 20/25 days back at ring road, near base hospital, three boys had snatched mobile N72, Laptap, Rs.2200/ and bag IO of which may be sent. Admittedly, PW4 Arvind has never alleged that a sum of Rs.2200/ was also snatched from him. In view of the contradictory version of complainant PW4 Arvind regarding number of accused at the time of incident and the number of accused mentioned in the above noted DDs create doubt in the case and in my view prosecution could not firmly establish as to how many State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.42 of 56 persons were involved in the incident.
28. PW2 Arvind has further stated that immediately after the accused had left the spot in the car, two persons came on motorcycle from the side of Naraina and asked him about the incident as they had also seen the two boys robing him. He alongwith two persons came on the other side of the road. PW2 Arvind has clearly stated that two persons had seen the incident of this case. But IO of this case has not made any effort to trace those two persons while PCR was also spotted by the complainant at that time and PW2 in his cross examination has admitted that those person were present there when PCR came and PCR official did not try to ask the names of those boys. He has also stated that he had asked their names and addresses but they told him that they are there for his help. PW2 has also even not disclosed the names of those persons in his examination in chief or to the IO. He has also not made it clear as to whether those persons disclosed the names to him or not. ARREST & PLEA OF ACCUSED PERSONS
29. In this case, allegedly accused persons were arrested on the basis of secret information received by PW10 ASI Manoj to the State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.43 of 56 effect of looted car which was case property of FIR no. 312/08 PS Vikaspuri. The prosecution has examined PW4 SI Birpal Singh, PW6 SI Nirakar Kaushik and PW10 ASI Manoj in this respect. All the PWS have deposed that secret information was received on 19.12.2008 and they reached at the spot of information where on car bearing no. DL3CND 6075 came which was intercepted and accused Rajesh, Rahul, Rattan, Ravikant and Junaid Queshi were apprehended. It is further alleged that desi katta was recovered from Junaida and Rattan, knife was recovered from Ravikant and dagger was recovered from Rahul. PW4 SI Birpal Singh and PW6 ASI Nirakar Kaushik have stated that after apprehension of accused persons they went to Pipli but PW10 ASI Manoj who was the IO of that case did not state that they ever went to Pipli to apprehend accused Raghubir Singh @Sahil as the car was to be handed over to him at Pipli. Further PW4 & 6 in their cross examination have stated that they do not know where the Pipli falls and whether it falls in Karnal or Kurukshetra.
30. All the witness of case FIR no. 312/08 PS Vikaspuri have stated that accused Rahul got recovered HCL laptop, strolley and mobile phone was got recovered by Rattan. The said articles State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.44 of 56 were seized u/s 102 Cr.PC. However, in this case no TIP of the case property was conducted by the Ld. MM considering the nature of articles and that IMEI number of the phone is on record. Considering the bill Ex.P4, the IMEI number of mobile is 353089023651330. However, in consideration of the evidence on record, there is no mention that the mobile phone with same IMEI number was produced in the court or that it was some other mobile as the IMEI number of the mobile produced in the court is nowhere mentioned. Accused Rahul has taken the plea that he was lifted from Jaipur Golden Hospital alongwith his friends. So, I have considered this plea of accused. The accused has examined five witnesses in his defence. DW1 Dr.SN Basu from Jaipur Golden Hospital has stated that as per record, Kavita w/o Rahul Jain was admitted in hospital on 14.12.2008 and discharged on 18.12.2008, the discharge summary is Ex.DW1/A. DW2 Dr. Seema Jain has supported the version of PW1. PW3 ASI Jagat Singh was summoned to produced the copy of PCR form, call made by one Sajid from mobile no. 9268335925 but the said record is stated to have been destroyed. He was cross examined by the defence counsel and he admitted that he did not search the aforesaid record in his office. PW4 HC Bhajan Lal has produced DD no.19A wherein an information was received from State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.45 of 56 phone no. 27906127 from Jaipur Golden Hospital that one person had been lifted by vehicle no. UP 14 AH 1856. The DD is Ex.DW4/A. I have perused the said DDs. It was recorded in DD no. 26A by SI Subhash who was given DD no.19A for investigation that one person namely Rahul was lifted by some person and the information in this respect was passed on by Rakesh Ghera, Security Guard of hospital. It is further revealed from reception that a lady Kavita w/o Rahul Jain, who was lifted from the hospital, was admitted in the hospital and she had delivered a male child. DW5 Rahul Jain himself has also deposed the facts recorded in DD no.19A and 26A.
31. In consideration of the plea taken by accused Rahul Jain that he was lifted from Jaipur Golden Hospital on 18.12.2008 it is manifest from DD no.19A and 26A that he was lifted from Jaipur Golden Hospital on 18.12.2008. Ld. Defence counsel has also put suggestion to the witnesses of prosecution regarding lifting of accused persons from Jaipur Golden Hospital. In consideration of the DDS exhibited on record, suggestion put by the Ld. Defence counsel, I am of the view that the accused has proved that he was lifted from Jaipur Golden Hospital on 18.12.2008 and when he was lifted on State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.46 of 56 18.12.2008, his arrest on the basis of secret information as per deposition of PW4,PW6 and PW10 from GT Karnal Road, Near DTC bus stand, Singhu Border seems to be doubtful. Further, the IO has not joined any public witness at the time of arrest of accused from Singhu Border or even at the time of recoveries effected. As per the case of the prosecution accused Rahul is stated to have been arrested with his co accused on 19.12.08 in case FIR no. 312/08 while as per the DDs exhibited on record in defence by the accused, it is manifest that he was lifted on 18.12.2008 from Jaipur Golden Hospital. Considering the above evidence on record, it is crystal clear that there are contradiction in the testimonies of witnesses regarding arrest of accused persons. Further no independent witness was associated at the time of arrest of accused persons and recovery effected from them. Reliance placed on case law 1997 IV AD (Delhi) 666 Pradeep Kumar Vs. State. Further, in Udal Vs. State of U.P., 2004 Crl. L.J. 2969, the Hon'ble Allahabad High Court has observed that shaky, suspicious and fragile evidence cannot be made the sound basis for conviction of the accused when the prosecution has failed in establishing the guilt of the accused convincingly. It is also well settled law that in case of secret information the investigating agency must join some State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.47 of 56 independent witnesses. This requirement of joining of independent witnesses is only to ensure that what the official witnesses are deposing is also supported by such independent witnesses, but in the present case, the police has failed to join any independent witnesses. In Asif Mamu v State of Rajasthan AIR 2009 SC 600, the Hon'ble Supreme Court had held that the circumstances surrounding arrest of the accused, and doubts emerging from the prosecution's case can be a ground for acquittal. In the present case, the aspect which injects suspicion and doubt is the conflicting evidence as to Rahul's arrest and this conflicting versions undermine the prosecution's version about arrest of Rahul. So, arrest as well as recovery in this case could not be duly established by the prosecution.
STATUS OF FIR
32. As per testimony of PW2 the incident had taken place on 18.11.2008 at about 10.30 p.m. It is the case of the prosecution that on the same night the complainant was taken to PS where he gave his handwritten statement. DD no.32A was also recorded at 10.47 p.m. I have perused the FIR Ex.PW8/A and it is revealed that it was recorded on 19.11.2009 at 5.05 p.m. In Thanedar Singh v. State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.48 of 56 State of M.P.,(2002) 1 SCC 487,citing the previous judgment in Meharaj Singh v.State of U.P.1994 (5) SCC 188 the court had, in that case, held that: 'FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.49 of 56 fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then antetimed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been antetimed and had not been recorded till the inquest proceedings were over at the spot'.
33. In the present case the incident had taken place in the night at about 10.30 p.m and it was also reported immediately to the Police. But the FIR shows that it was recorded on next date that too at 5.05 p.m. PW7 ASI OM Prakash IO of this case has stated that in his examinationinchief that the complainant gave his written complaint which is Ex.PW2/A on 18.11.08. The complaint was kept pending vide DD no.38B as the complainant was in confused state of mind. On 19.11.08 he prepared rukka and got the case registered. It has come in his statement that complainant was in confused state of mind. But when he had already been the complaint in writing, it is not understandable as to what prevented the police to register FIR on his statement. There is no explanation offered by the prosecution in this respect. In consideration of the observations of case law and in the absence of any explanation from the prosecution, I am of the view that the present case FIR is antedated and ante time. State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.50 of 56 POINTING OUT MEMO
34. PW10 SI Manoj (IO of case FIR no. 312/08) has stated that accused Sanjay, Rahul and Ratted pointed out towards the U turn, in front of Brar Square, Ring Road, Naraina from where they had robbed one person about one month ago and he prepared the pointing out memo of the spot which is Ex.PW6/R (original seen from case File of FIR no. 312.08). He has further stated that he had mentioned the date on pointing out memo as 19.12.2008 however, the pointing out memo was prepared by him on 19.12.2008 since he continued conducting investigation of the case from 19.12.2008 to 20.12.2008. PW7 ASI OM Prakash who is the IO of this case has also stated that PW10 SI Manoj had prepared the pointing out memo Ex.PW6/R. It is admitted fact that PW10 was not the IO of this case and he was only the IO of case FIR no. 312/08 wherein the accused persons have allegedly made disclosure statement. It is not understandable as to why PW10 has investigated the present case by preparing pointing out memo. On perusal of the pointing out memo Ex.PW6/R, is revealed that it was prepared on 19.12.08 and in his examination in chief PW10 has admitted about preparing the same on 19.12.2008. Accused Sanjay Yadav is stated to have been arrested State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.51 of 56 on 20.12.2008. Other accused Rahul and Rattan were arrested on 19.12.08 at 2.35 p.m and thereafter allegedly police took them to Peepli and after coming from there recoveries were effected. It is not the case that the pointing out memo was prepared on the date of arrest of accused Rahul and Rattan. But the place was jointly pointed out by the accused persons. Considering the above discussions, the pointing out memos seems to be doubtful.
35. However, in case law Krishna Mochi v. State of Bihar 2002(6)SCC 81 : 2002(2) Crimes 326 (SC) : 2002(3) Supreme 369 Supreme Court held : "Even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other coaccused persons, his conviction can be maintained. It is the duty of the Court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove the guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim fallsus in uno, falsus in omnibus (false in one thing, false in everything) has not received general State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.52 of 56 acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is, that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in given set of circumstances, but it is not what may be called" a mandatory rule of evidence".
36. In view of the above observations, I have minutely considered this case. In this case, the complainant has stated that accused Rahul was sitting in the car and accused Rattan put pistol at his back and accused Sanjay snatched his belongings. He has not assigned any particular role of accused Rahul. On the other hand the plea taken by accused Rahul that he was picked up from Jaipur Golden Hospital seems to be true in view of the DD entries brought on record by him by way of adducing the evidence of DW4 HC Bhajan Lal as well as his own statement recorded u/s 315 Cr.PC.
37. Accused Rattan has allegedly put katta at the back of complainant. On perusal of the entire evidence, the prosecution has failed to produce the alleged katta in this present case. Though the katta has allegedly been recovered from accused case FIR no. 312/08 but the IO of this case has not tried to get the same State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.53 of 56 transferred and failed to produced the same in the court. The alleged recovered katta has not been shown to PW2 Arvind to establish that it was the same katta which was put on his back. There is no evidence regarding recovery of katta in the present case and therefore prosecution has failed to establish that katta was used in the commission of crime in the present case.
38. Both the accused Rahul and Rattan have refused to participate in the TIP in this case. DW5 Rahul examined u/s 315 Cr.PC has stated that during their stay in the PS their signatures were obtained on some blank sheets and their photographs were also taken from the mobile phones. I have perused the cross examination. But no suggestion has been put by Ld.APP for the State to DW5 that their signatures or photographs were not taken in the PS. In a judgment reported in Bal Kishan Vs. State & Anr. 1977 Crl. J. 410, it has been held by this Court that if there is a failure to cross examine a witness in respect of a material assertion, it is to be presumed that that assertion stands admitted. In view of this, I am of the view that adverse inference cannot be taken against the accused Rahul and Rattan for their refusal to participate in TIP. State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.54 of 56
39. Accused Sanjay Yadav has participated in the TIP and he was correctly identified by PW2 Arvind (Complainant). He was not arrested alongwith accused Rahul and Rattan on the basis of secret information. But he was arrested later on 20.12.2008. PW2 has also assigned his role that he snatched his belongings.
40. In this case accused Rattan @ Mintu has been charged u/s 397 PC only. But the prosecution has failed to produced the pistol in this case, nor any pistol was shown to the complainant.
41. Accused Rahul Jain @ Rohan @ Sonu and Sanjay Yadav have been charged u/s 392/34 IPC. The complainant has also identified accused Sanjay Yadav in TIP and he has assigned his role that he snatched his belonging. He was arrested later on. On the other hand accused Rahul has proved that he was lifted from Jaipur Golden Hospital on 18.12.2008 alongwith his associates. But accused Sanjay has not led any evidence in his favour to prove plea.
42. In view of my above discussions, I am of the view that prosecution has utterly failed to prove its case against accused Rahul and Rattan and they are entitled to be given the benefit of doubt. I therefore give the benefit of doubt to accused Rahul @Rohan @ State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.55 of 56 Sonu and Rattan @Mintu. Accused Rahul stand acquitted u/s 392/34 IPC and accused Rattan stand acquitted u/s 397 IPC.
43. Both the accused Rahul and Rattan are in JC. They are directed to furnish their bail bonds in a sum of Rs.25,000/ with one surety in the like amount in view of the provisions contained u/s 437A Cr.PC.
44. However, by separating the grain from the chaff and my discussions above, I am of the view the prosecution has successfully proved its case against accused Sanjay Yadav for the commission of offence punishable u/s 392/34 IPC and he is convicted thereunder. Announced in the open Court on 17.12.2012 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE/ SPECIAL JUDGE(NDPS) NEW DELHI State Vs. Rahul Jain @ Rohan @ Sonu etc FIR no. 284/08 Page No.56 of 56