Delhi District Court
State vs . 1. Dilshad @ Sonu S/O Ramjani R/O on 28 January, 2013
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 0I : North East / KARKARDOOMA
COURTS: DELHI.
Case ID Number. 02402R0315642008
Sessions Case No. 53/2008
Assigned to Sessions. 26.05.2008
Arguments heard on 19.01.2013
Date of Judgment 28.01.2013
FIR No. 22/2008
State Vs. 1. Dilshad @ Sonu S/o Ramjani R/o
Village Akondha, PS Chandpur, Distt.
Bijnour, U.P.
2. Fazlu S/o Jamshed R/o C307, Gali
No.16, Old Mustafabad, Delhi.
3. Sunil Kumar S/o Mohan Lal R/o Budh
Bazar Wali Gali, Chaman Vihar, Loni,
Ghaziabad, U.P.
Police Station Gokalpuri
Under Section 392/397/34 IPC
JUDGEMENT
1. Vide this judgment I shall dispose off the present case in which Station House Officer of Police Station Gokalpuri had filed a challan vide FIR No.22/2008 dated 21.01.2008 u/s 392/397/34 IPC for the prosecution of accused persons namely Dilshad @ Sonu, Fazlu and Sunil Kumar in the court of Ld. MM and Ld. Metropolitan Magistrate after compliance of section 207 Cr. P.C. committed this case for trial before this court.
SC No.53/2008
State v. Dilshad @ Sonu and others 1/29
2. Facts of the prosecution case are that on 21.01.2008 a DD No.40A Ex.PW7/A was recorded at police station Gokalpuri regarding forcefully taken away the money from the cash box (gala) from premises i.e. D10/239, Main Road, Brijpuri, Delhi. On receipt of said DD, SI B.D. Meena along with HC Ashok reached at the spot, where complainant Pradeep Kumar Arora met them. SI B.D Meena had recorded statement of complainant Pradeep Kumar Arora Ex.PW1/A and made endorsement upon the same Ex.PW7/B and got registered FIR Ex.PW7/C u/s 392/397/34 IPC through HC Ashok. S.I. B.D. Meena had inspected the place of occurrence i.e. Chawla Store, premises No.D10/239, Main Road, Brij Puri, Delhi and prepared site plan at the instance of complainant Ex.PW10/A. During the course of investigation, accused persons were arrested for the offences u/s 392/397/34 IPC. CHARGES:
3. On the basis of material available on record ld. predecessor of this court had framed a charge, vide order dated 09.07.2008 against accused persons namely Dilshad @ Sonu, Fajlu and Sunil Kumar for offences punishable u/s 392/34 IPC and another charge for the offence punishable u/s 397/34 IPC against accused Dilshad @ Sonu to which accused persons did not plead guilty and claimed trial. PROSECUTION WITNESSES:
4. In order to prove its case prosecution has examined 13 witnesses namely PW1 SC No.53/2008 State v. Dilshad @ Sonu and others 2/29 Pradeep Arora, PW2 Ct. Shyam Lal, PW3 HC Ashok Kumar, PW4 S.I. E.S. Yadav, PW5 Ct. Rajesh Kumar, PW6 HC Anil, PW7 ASI Duli Chand, PW7 HC Surender Kumar, PW8 HC Gajraj, PW9 Sh. Vipin Kumar Rai, PW10 S.I. B.D. Meena, PW11 HC Rohtash Kumar and PW12 Ms. Anuradha Shukla, Ld. ASJ.
5. PW1 Pradeep Arora is a material witness being complainant. This witness has deposed that he is running a kiryana shop by the name of Chawla Store at premises No. D10/239, Main Road, Brijpuri, Delhi. On 21.01.2008 at around 8:00 p.m. one boy came to his shop and demanded a packet of gold flake cigarette and he handed over rupees one hundred to him. This witness has pointed the said boy as Sunil. This witness has further deposed that as soon as he turned towards his shop for picking up cigarette packet from his shop, one other boy came to his shop and pointed out weapon towards him and asked him not to raise alarm otherwise they will kill him. The third boy after jumping his counter entered his shop and he had taken away cloth bag which was lying on his cash box and it was containing Rs.7,000/ to Rs.8,000/ in cash and some documents of his shop. This witness had correctly identified accused Dilshad who carried away cloth bag containing cash amount and documents. This witness has further deposed that thereafter, accused persons ran away via street going towards Mustafabad and made fire in the air when he raised alarm. This witness had pointed out third accused Fazlu who pointed out weapon.
6. This witness has proved his statement Ex.PW1/A. This witness has further SC No.53/2008 State v. Dilshad @ Sonu and others 3/29 deposed that he had given description of the accused persons to the police and they prepared sketch of one of the accused and same identified by the witness from the judicial file Ex.P1. This witness had identified all the accused persons in the police station who were involved in the aforesaid incident. This witness has also identified his theft articles during judicial TIP proceedings got conducted by the police. This witness has correctly identified bag Ex.P1 and documents Ex.P2 belonging to him.
7. This witness was cross examined by ld. APP for the State on some material facts. In his cross examination by ld. APP for the State, this witness has deposed that he cannot tell the name of accused who had pointed weapon towards him, however, he has identified him today in the court. This witness denied to the suggestion that he had stated to the police in his statement on 28.01.2007 u/s 161 Cr.P.C. Ex.PW1/B in which he had stated that accused Dilshad pointed out weapon towards him.
8. In his cross examination by ld. counsel for accused Fazlu and Dilshad, this witness denied to the suggestion that he had identified the accused persons in the court on the last date of hearing at the time of recording his statement as police had shown him photographs of accused persons. This witness admits that articles were not recovered from the accused persons in his presence.
9. In his cross examination by Md. Hassan, ld. Amicus Curiae for accused Sunil, this SC No.53/2008 State v. Dilshad @ Sonu and others 4/29 witness admits that site plan was not prepared in his presence and he had not mentioned in his statement to the police about the description of currency notes.
10.PW2 Ct. Shyam Lal. This witness has proved photographs Ex.PW2/A1 to Ex.PW2/A7 and negatives Ex.PW2/D1 to Ex.PW2/D7 which are depicting the scene of crime of present case.
11.PW3 HC Ashok Kumar who accompanied S.I. B.D. Meena to the spot after receiving of DD No. 40A. In his presence, I.O. had recorded statement of complainant. This witness had got recorded FIR of the present case from the police station.
12.In his cross examination by ld. defence counsel, this witness denied to the suggestion that he has not visited the spot and made all the proceedings in the police station.
13.PW4 S.I. E.S. Yadav. This witness along with crime team had reached at D 10/239, Main Brijpuri road, Delhi and inspected the spot and photographer had taken photographs from various angles on the request of I.O. This witness had searched for chance prints from spot but they did not get any chance print.
14.PW5 Ct. Rajesh Kumar. This is the witness of arrest and recovery. This witness has proved joint disclosure statement of accused persons vide Ex.PW5/A. SC No.53/2008 State v. Dilshad @ Sonu and others 5/29 This witness has proved arrest memo Ex.PW5/B and personal search memo Ex.PW5/C of accused Fazlu, arrest memo Ex.PW5/D and personal search memo Ex.PW5/E of accused Sunil Kumar and arrest memo Ex.PW5/F and personal search memo Ex.PW5/G of accused Dilshad @ Sonu.
15.This witness has deposed that accused persons led them in a jungle, near nasbandi colony, Ghaziabad, U.P. to get recover case property, all three accused persons picked up one white cloth bag from the bushes of jungle near Nasbandi Colony which was produced before the I.O. and same was having print mark of Hariyali Premium Basmati Chawal and it was containing one envelope in the name of Anil Arora and 4 or 5 slips bearing the name of Arora General Store and same were seized vide seizure memo Ex.PW5/H.
16.This witness has correctly identified on cloth bag with mark of Hariyali Premium Basmati Chawal vide Ex.P1 and one ICICI Bank Credit Card documents in the name of Rajiv Arora and four cash memos in the form of slips in the name of Chawla Stores, Brij puri vide Ex.P2 collectively.This witness has been cross examined at length by ld. defence counsel.
17.PW6 HC Anil. This witness has deposed that accused persons namely Dilshad @ Sonu, Fazlu and Sunil Kumar were apprehended and arrested by ASI Duli Chand in case FIR No.25/2008 of police station Gokalpuri and they had made their disclosure statement one by one in case FIR No.25/2008 of police station SC No.53/2008 State v. Dilshad @ Sonu and others 6/29 Gokalpuri disclosing their involvement in the incident of case FIR No.22/2008 of police station Gokalpuri and accused Fazlu made disclosure statement regarding his involvement in case FIR No.781/07 of police station Gokalpuri. This witness has proved copy of disclosure statement of accused Dilshad @ Sonu vide Ex.PW5/DA, of accused Sunil Kumar vide Ex.PW6/A and of accused Fazlu vide Ex.PW6/B of case FIR No.25/2008.
18.This witness has deposed that in his presence, I.O./S.I. B.D. Meena had recorded disclosure statement of all three accused persons vide Ex.PW5/A. This witness has proved seizure memo vide Ex.PW5/H. This witness has also correctly identified the case property.
19.In his cross examination by ld. defence counsel, this witness has deposed that ASI Dulichand had recorded disclosure statement in case FIR No.25/2008 and S.I. B.D. Meena had recorded disclosure statement in case FIR No.22/2008.
20.PW7 ASI Duli Chand. This witness has deposed that on 27.01.2008, further investigation of case FIR No.25/2008 had been assigned to him and he reached at the spot i.e. Gokalpuri Gas Godown, Nala Road, Delhi where HC Rohtash along with other police officials and three accused persons was present and he had produced three accused persons and relevant document of case FIR No.25/2008 of police station Gokalpuri. This witness has proved disclosure statement of accused persons namely Dilshad @ Sonu, Fazlu and Sunil Kumar vide SC No.53/2008 State v. Dilshad @ Sonu and others 7/29 Ex.PW5/DA, Ex.PW6/B and Ex.PW6/A respectively and all the aforesaid three accused persons had disclosed their involvement in present case i.e. FIR No.22/2008. This witness had handed over copy of disclosure statements and copy of statements of PWs Ct. Anil, Ct. Virender and Ct. Rakesh to I.O./S.I. B.D. Meena at police station.
21.In his cross examination by ld. defence counsel, this witness denied that he had recorded disclosure statements as per the choice of I.O./S.I. B.D. Meena or that no disclosure statements were made by accused persons.
22.PW7 HC Surender Kumar. This witness is a formal witness being duty officer. This witness has proved DD No.40A vide Ex.PW7/A. This witness has also proved copy of FIR Ex.PW7/C u/s 392/397/34 IPC which was recorded on the basis of rukka Ex.PW7/B presented through HC Ashok. This witness has also recorded DD No.42A regarding registration of FIR.
23.PW8 HC Gajraj. This witness has deposed that on 13.04.2008 he along with Ct. Swaroop had gone to Amroha and Chandpur, U.P. in search of accused Arshad and Shamim @ Chhanga on the direction of SHO. They had made efforts in search of them at aforesaid places but their presence could not be procured.
24.PW9 Sh. Vipin Kumar Rai, Add. Coordinator, Delhi High Court Arbitration Centre, High Court of Delhi. This witness has proved TIP refusal of accused Sunil SC No.53/2008 State v. Dilshad @ Sonu and others 8/29 Kumar and accused Dilshad vide Ex.PW9/B and Ex.PW9/D respectively.
25.PW10 S.I. B.D. Meena is material witness being I.O. This witness has deposed that on 21.01.2008, he was on night emergency duty at P.S. Gokal Puri, Delhi and on that day, at about 08:20pm copy of DD No.40A was assigned to him to take action into the matter. This witness has further deposed that he along with HC Ashok reached at the spot i.e. premises no.D10/239, Main Road, Brij Puri, Delhi in pursuance of DD No.40A, Ex.PW7/A, where, complainant Pradeep Kumar Arora met them and he had recorded his statement EX.PW1/A and complainant had stated that he was robbed at the point of weapon by four persons and they took cash from the cash box, some documents and clothes bag etc. Thereafter, this witness had made endorsement Ex.PW7/B to get registered FIR for offences u/s 392, 397, 34 IPC, which bears his signature at point X.
26.During the course of investigation, this witness had inspected the place of occurrence i.e. Chawla Store, premises no. D10/239, Main Road, Brij Puri, Delhi and prepared site plan at the instance of complainant, Ex.PW10/A. This witness has further deposed that HC Ashok Kumar came at the spot and delivered rukka EX.PW7/B along with copy of FIR, EX.PW7/C for investigation and firstly, he had mentioned the particulars of case on the site plan and made interrogation nearby the spot. This witness had made search of robbers here and there but in vain on that day.
SC No.53/2008
State v. Dilshad @ Sonu and others 9/29
27.During the course of investigation, on next day, this witness along with staff reached at the spot and he called crime team official, where, photographer/Ct. Shyam Lal took seven photographs of the spot from different angles which are Ex.PW2/A1 to Ex.PW2/A7, which are depicting the scene of crime. This witness had recorded statement of photographer and S.I. E.S. Yadav, who had inspected the spot but no clue came forward. This witness had made search of robbers but in vain till 27.01.2008.
28.During the course of investigation, on 28.01.2008, ASI Duli Chand had arrested three accused whose names came into notice as Dilshad @ Sonu, Fazlu and Sunil Kumar in Case FIR No.25/2008 of PS Gokalpuri, Delhi. They had made disclosure statements in connection of present case. ASI Duli Chand produced aforesaid three accused persons along with copy of disclosure statement EX.PW5/DA, EX.PW6/B and Ex.PW6/A respectively. This witness formally arrested them in the present case at PS Gokalpuri and he directed them to keep their faces muffled. This witness had prepared arrest memo Ex.PW5/F and personal search memo Ex.PW5/G of accused Dilshad @ Sonu, arrest memo Ex.PW5/B and personal search memo Ex.PW5/C of accused Fazlu and arrest memo Ex.PW5/D and personal search memo Ex.PW5/E of accused Sunil Kumar. This witness had interrogated aforesaid accused persons and recorded their joint disclosure statement Ex.PW5/A which bears his signature at point C and Ct. Anil and Ct. Virender were also present at the time of arrest and disclosure statement. SC No.53/2008
State v. Dilshad @ Sonu and others 10/29
29.This witness has further deposed that accused persons led police party in jungle in the area of Alvi Nagar, Nasbandi Colony, Ghaziabad, U.P. to get recovered the robbed articles of this case in pursuance of disclosure statement and all the three accused persons lifted one white cloth bag upon which words in Hindi as "Hariyali premium basmati chawal" were printed in green colour and bag was checked in which some cash memos issued in favour of one Rajeev Arora, one envelope of ICICI bank, some receipts upon which Chawala Store was printed. This witness had converted aforesaid articles into one cloth parcel, which was sealed with the seal of BD and seized vide seizure memo EX.PW5/H in the presence of ct. Anil Kumar and ct. Virender Kumar and aforesaid, accused persons were produced before concerned court in muffled faces after their medical examination and from there, they were sent to JC by the court. This witness had recorded statements of Ct. Anil Kumar, Ct. Virender and Ct. Rajesh.
30.During the course of investigation, on 13.02.2008, this witness had moved application for judicial TIP of accused persons EX.PW9/A which was marked to Sh. Vipin Kumar Rai, ld. link MM for 16.02.2008 and on that day, accused Sunil Kumar and Dilshad @ Sonu refused to participate in TIP proceeding. Their refusals Ex.PW9/B and EX.PW9/D were recorded. This witness had collected copy of TIP proceedings vide application Ex.PW10/B.
31.During the course of investigation, on 16.02.2008, this witness had visited the Tihar Jail Hospital where accused Fazlu was admitted and he had moved SC No.53/2008 State v. Dilshad @ Sonu and others 11/29 application for further JC remand of accused Fazlu before ld. MM and on that day, complainant Pradeep Kumar Arora also reached there following him and he had identified accused Fazlu before him. This witness had moved application for judicial TIP of accused Fazlu which was declined by ld. MM.
32.During the course of investigation, on 05.04.2008, this witness had moved application for judicial TIP of case property of this case which was fixed for 11.04.2008. Carbon copy of the same is Ex.PW10/C. On that day, this witness had produced sealed parcel of case property and some similar articles for mixing before court for the purpose of TIP. This witness had also produced and identified complainant. On that day, Ms. Anuradha Shukla, ld. MM conducted TIP of case proceeding as per law and complainant identified his cloth bag, cash memo etc. This witness had collected copy of TIP proceeding of case property, Ex.PW10/D through application Ex.PW10/E. This witness had made search of coaccused Arshad whose name came on record from the disclosure statement of accused persons, namely, Dilshad, Fazlu and Sunil Kumar, present in court (correctly identified) and coaccused Arshad could not be traced and his name was put in column no.2 in the chargesheet as PO. This witness had completed the investigation and prepared chargesheet.
33.This witness had correctly identified the case property vide Ex.P1 and Ex.P2 which were recovered at the instance of accused persons. SC No.53/2008
State v. Dilshad @ Sonu and others 12/29
34.This witness has been cross examined at length by ld. defence counsel. In his cross examination, this witness has deposed that he had requested public persons to join the proceeding but they did not ready and he had recorded statement of complainant at the spot. This witness has deposed that site plan was prepared at the instance of complainant Sh. Praveen Kumar Arora and he does not remember whether he had obtained his signature thereon or not. This witness has deposed that he had not any knowledge about the recovery of case property at the time of receiving disclosure statements etc. from ASI Duli Chand in the present case.
35.This witness has further deposed that he had not called any person from population to join the recovery proceeding and he does not remember how many parcels were prepared by him there. This witness denied to the suggestion that aforesaid cash memo has been planted upon the accused persons or that no recovery of any case property was effected from accused persons at any point of time. This witness denied to the suggestion that recovery of bag and cash memo etc. has been planted upon accused persons after arranging from complainant being the wholesale dealer of same brand.
36.PW11 HC Rohtash Kumar. This witness has deposed that on 27.01.2008, he was posted at police station Gokalpuri and on that day, he along with Ct. Anil Kumar, Ct. Virender Kumar and Ct. Rajesh were on evening patrolling duty in the area of Gas Godown, Ganda Nala, Gokalpuri Gaon, Delhi. This witness has further deposed that they had noticed three persons coming on bike without helmets, then SC No.53/2008 State v. Dilshad @ Sonu and others 13/29 he had given signal them to stop, immediately bike rider increased the speed of motorcycle. This witness has further deposed that the person who was sitting in the middle, opened fire upon police team at the instance of person won was sitting in the last and bullet went away without causing injury to them. This witness has further deposed that they had overpowered all three bikers and their names came into notice as Sunil Kumar (bike rider), Fazlu who was sitting in the middle and third was Dilshad @ Sonu and he had recorded rukka and got registered FIR No.25.2008 at police station Gokalpuri for offence u/s 307/186/353/34 and 25/27 Arms Act.
37.In his cross examination by ld. defence counsel, this witness admits that there was no public witness in case FIR No.25/2008, u/s 307/186/353/34 IPC registered at police station Gokalpuri, Delhi in which all accused persons present in court had been involved. This witness has deposed that fact of present case regarding robbery was in his knowledge as case was registered at police station by that time he was not aware whether all the accused persons were involved in the present case.
38.This witness denied to the suggestion that accused Fazlu was not arrested from the spot or that he was lifted from 25 Futa Road, Mustafabad, Delhi or that accused Dilshad was not arrested from the spot or that he was lifted from his shop.
39.PW12 Ms. Anuradha Shukla, Ld. ASJ. This witness has conducted TIP of case SC No.53/2008 State v. Dilshad @ Sonu and others 14/29 property i.e. white cloth bag with the print of Hariyali Basmati Chawal and proved TIP proceedings vide Ex.PW10/D. STATEMENT OF ACCUSED PERSONS U/S 313 CR.P.C.:
40.After prosecution evidence, statement of accused persons u/s 313 Cr.P.C. were recorded wherein accused persons denied all circumstances and evidence were put to them and claimed to be innocent and have been implicated falsely after lifted by the police from their houses in the case FIR No.25/2008 by HC Rohtash, thereafter, they were also implicated in the presence case by the I.O. in connivance with HC Rohtash and they had refused TIP proceedings as they had been shown to witnesses at police station and I.O. had planted case property against them and had obtained their signatures on some blank papers forcibly. Accused persons had not preferred to lead any D.E.
41.Thereafter, case was fixed for arguments.
ARGUMENTS:
42.Ld. APP for the State submits that present case had been registered u/s 392/397/34 IPC against accused persons namely Dilshad @ Sonu, Fazlu and Sunil Kumar on the complaint of PW1 Pradeep Kumar Arora.
43.Ld. APP for the State further argued that all the accused persons had looted Rs.8,000/ from Pradeep Arora by using knife.
SC No.53/2008
State v. Dilshad @ Sonu and others 15/29
44.Ld. APP for the State argued that PW1 Pradeep Arora, complainant is a material witness. This witness had identified all the accused persons. This witness had also identified the bag printed with Hariyali. PW10 had arrested the accused persons.
45.Ld. APP for the State further argued that there is TIP refusal by accused Dilshad and Sunil.
46.Ld. APP for the State further argued that complainant had identified case property before PW12.
47.On these grounds, ld. APP for the State has prayed for maximum sentence to the accused persons for which they have been charged.
48.On the other hand, ld. counsel for accused persons submits that PW1 complainant had explained about two accused only and not corroborated with complaint. There are improvement in his deposition before the court and complaint. As per complaint, he deposed about the fire but it is not mentioned in his complaint. Complainant had identified the accused persons at police station and no purpose of TIP. PW1 in his examination in chief has stated that he had pointed out site to police but in his cross examination he states that he does not recollect whether police had prepared site plan or not.
SC No.53/2008
State v. Dilshad @ Sonu and others 16/29
49.Ld. counsel for accused persons further argued that as per examination in chief of PW1, he had pointed out the spot but there is no pointing out memo on record in this regard.
50.Ld. counsel for accused persons further argued that there is contradiction of statement of PW1. In his cross examination this witness had admitted that no recovery had been affected from the possession of accused. This witness further submitted that he had handed over bills to police.
51.Ld. counsel for accused persons further argued that no public person has been made witness despite their availability.
52.Ld. counsel for accused persons further argued that TIP in respect of Hariyali Basmati bag had been conducted but not in respect of bills and complainant had not accompanied the police to spot at the time of recovery.
53.Ld. counsel for accused persons further argued that photographs taken by PW2 Shyam Lal does not reflect that alleged shop is Chawla Store.
54.Ld. counsel for accused persons further argued that as per I.O. site plan had been prepared at the instance of Pardeep Kumar Arora but Pradeep Arora had not been made witness. I.O. is also not aware as to how many parcels he had prepared. SC No.53/2008
State v. Dilshad @ Sonu and others 17/29
55.Ld. counsel for accused persons further argued that material witnesses i.e. Ct. Anil Kumar, Rajesh and Ct. Virender, all these witnesses had admitted that they were aware about the recovery of present case property in case FIR No.25/2008.
56.Ld. counsel for accused persons further argued that as per complaint, complainant had described about only two boys but the police had prosecuted present all three accused persons.
57.Ld. counsel for accused persons further argued that no recovery of weapon is effected from accused persons. On these grounds, ld. counsel for accused persons has prayed for acquittal of accused persons from the charges. PERUSAL OF RECORD:
58.Arguments heard. Record perused. On perusal of record it is revealed that present case was registered on the statement of complainant PW1 Pradeep Arora and accordingly, FIR Ex.PW7/C u/s 392/397/34 IPC was registered at police station Gokalpuri against accused persons.
59.On perusal of record, it is revealed that as per statement of PW1 Pradeep Arora on 21.01.2008 at around 8:00 p.m. one boy came to his shop and demanded a packet of gold flake cigarette and he handed over rupees one hundred to him. This witness has pointed the said boy as Sunil. This witness has further deposed that SC No.53/2008 State v. Dilshad @ Sonu and others 18/29 as soon as he turned towards his shop for picking up cigarette packet from his shop, one other boy came to his shop and pointed out weapon towards him and asked him not to raise alarm otherwise they will kill him. The third boy after jumping his counter entered his shop and he had taken away cloth bag which was lying on his cash box and it was containing Rs.7,000/ to Rs.8,000/ in cash and some documents of his shop. This witness had correctly identified accused Dilshad who carried away cloth bag containing cash amount and documents. This witness has further deposed that thereafter, accused persons ran away via street going towards Mustafabad and made fire in the air when he raised alarm. This witness had pointed out third accused Fazlu who pointed out weapon.
60.On perusal of record, it is further revealed that during the course of investigation, I.O. had inspected the place of occurrence i.e. Chawla Store, premises no. D 10/239, Main Road, Brij Puri, Delhi and prepared site plan at the instance of complainant, Ex.PW10/A.
61.On perusal of record, it is further revealed that during the course of investigation, on the direction of I.O., photographer/Ct. Shyam Lal had taken seven photographs of the spot from different angles which are Ex.PW2/A1 to Ex.PW2/A7, which are depicting the scene of crime. This witness had recorded statement of photographer and S.I. E.S. Yadav, who had inspected the spot but no clue came forward. This witness had made search of robbers but in vain till 27.01.2008. SC No.53/2008
State v. Dilshad @ Sonu and others 19/29
62.On perusal of record, it is further revealed that during the course of investigation, on 28.01.2008, ASI Duli Chand had arrested three accused whose names came into notice as Dilshad @ Sonu, Fazlu and Sunil Kumar in Case FIR No.25/2008 of PS Gokalpuri, Delhi. They had made disclosure statements in connection of present case. ASI Duli Chand produced aforesaid three accused persons along with copy of disclosure statement EX.PW5/DA, EX.PW6/B and Ex.PW6/A respectively. I.O. had formally arrested them in the present case at PS Gokalpuri and he directed them to keep their faces muffled. I.O. had prepared arrest memo Ex.PW5/F and personal search memo Ex.PW5/G of accused Dilshad @ Sonu, arrest memo Ex.PW5/B and personal search memo Ex.PW5/C of accused Fazlu and arrest memo Ex.PW5/D and personal search memo Ex.PW5/E of accused Sunil Kumar.
63.On perusal of record, it is further revealed that I.O. had interrogated aforesaid accused persons and recorded their joint disclosure statement Ex.PW5/A.
64.On perusal of record, it is further revealed that in pursuance to their disclosure statement, accused persons led police party in jungle in the area of Alvi Nagar, Nasbandi Colony, Ghaziabad, U.P. to get recovered the robbed articles of this case and all the three accused persons lifted one white cloth bag upon which words in Hindi as "Hariyali premium basmati chawal" were printed in green colour and bag was checked in which some cash memos issued in favour of one Rajeev Arora, one envelope of ICICI bank, some receipts upon which Chawala Store was printed. I.O. had converted aforesaid articles into one cloth parcel, which was sealed with SC No.53/2008 State v. Dilshad @ Sonu and others 20/29 the seal of BD and seized vide seizure memo EX.PW5/H in the presence of ct. Anil Kumar and ct. Virender Kumar and aforesaid, accused persons were produced before concerned court in muffled faces after their medical examination and from there, they were sent to JC by the court. I.O. had recorded statements of ct. Anil Kumar, ct. Virender and ct. Rajesh.
65.On perusal of record, it is further revealed that during the course of investigation, on 13.02.2008, I.O. had moved application for judicial TIP of accused persons EX.PW9/A which was marked to Sh. Vipin Kumar Rai, ld. link MM for 16.02.2008 and on that day, accused Sunil Kumar and Dilshad @ Sonu refused to participate in TIP proceeding and their refusals Ex.PW9/B and EX.PW9/D were recorded. I.O. had collected copy of TIP proceedings vide application Ex.PW10/B.
66.On perusal of record, it is further revealed that during the course of investigation, on 16.02.2008, I.O. had visited the Tihar Jail Hospital where accused Fazlu was admitted and he had moved application for further JC remand of accused Fazlu before ld. MM and on that day, complainant Pradeep Arora also reached there and he had identified accused Fazlu before him. I.O. had moved application for judicial TIP of accused Fazlu which was declined by ld. MM.
67.On perusal of record, it is further revealed that during the course of investigation, on 05.04.2008, I.O. had moved application for judicial TIP of case property of this case which was fixed for 11.04.2008. Carbon copy of the same is Ex.PW10/C. On SC No.53/2008 State v. Dilshad @ Sonu and others 21/29 that day, I.O. had produced sealed parcel of case property and some similar articles for mixing before court for the purpose of TIP and I.O. had also produced and identified complainant. On that day, Ms. Anuradha Shukla, ld. MM conducted TIP of case proceeding as per law and complainant identified his cloth bag, cash memo etc. I.O. had collected copy of TIP proceeding of case property, Ex.PW10/D through application Ex.PW10/E. I.O. had made search of coaccused Arshad whose name came on record from the disclosure statement of accused persons, namely, Dilshad, Fazlu and Sunil Kumar, present in court (correctly identified) and coaccused Arshad could not be traced and his name was put in column no.2 in the chargesheet as PO. I.O. had completed the investigation and prepared chargesheet.
68.On perusal of record, it is further revealed that I.O. had correctly identified the case property vide Ex.P1 and Ex.P2 which were recovered at the instance of accused persons.
69.On perusal of record, it is further revealed that I.O./PW10 S.I. B.D. Meena states that site plan was prepared at the instance of complainant and but site plan Ex.PW10/A does not bear signature of complainant.
70.On perusal, it is further revealed that accused persons in their statement u/s 313 Cr. P.C. have deposed that they are innocent and they had been lifted by the police from their houses and falsely implicated in the case FIR No.25/2008 by HC SC No.53/2008 State v. Dilshad @ Sonu and others 22/29 Rohtash, thereafter, they were also implicated in the presence case by the I.O. in connivance with HC Rohtash and they had refused TIP proceedings as they had been shown to witnesses at police station and I.O. had planted case property against them and had obtained their signatures on some blank papers forcibly.
71.Before reaching at the conclusion let the relevant sections be reproduced which are as under: Section 392 IPC "Punishment for robbery Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to find; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years."
Ingredients of offence. The essential ingredients of the offence under sec. 392 are as follows:
1) Accused committed theft as defined in sec. 378 in the process;
2) Accused caused or attempted to cause to some persons
i) death, hurt or wrongful restraint;
ii) fear of death or of instant hurt or instant wrongful restraint;
3) Accused did either act
a) in committing such theft, or
b) in order to commit theft, or
c) in carrying away or attempting to carry away the property obtained by such theft.
Section 397 IPC "Robbery, or dacoity, with attempt to cause death or grievous hurt - If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
SC No.53/2008
State v. Dilshad @ Sonu and others 23/29 Ingredients of offence. The essential ingredients of the offence under section 397 are as follows:
1) Accused committed robbery or dacoity;
2) While committing such robbery or dacoity the accused
a) used a deadly weapon;
b) caused grievous hurt to any person;
c) attempted to cause death or grievous hurt to any person.
Sec.34 IPC "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
72.It has been observed in 'Harish Chandra Vs State of UP - AIR 1976 SC 1430' that :
"Robbery The offence of robbery is defined in section 390 IPC. The robbery is punishable under section 392 IPC. When force is used to enable another to carry away the booty, it amounts to robbery."
73.Since in the present case recovery have been effected in pursuance of disclosure statement of accused persons but there is no independent witness of recovery. Hence, as to the matter of presumption no fact on record could be brought by prosecution to presume certain facts.
74.Hon'ble High Court of Delhi in case titled as 'Syam Sunder and others Vs. State, CRL. A. 233/2008', wherein it has held that :
In order to prove the offence under Section 397 IPC the prosecution must establish:
i) commission of robbery or dacoity;
ii) that the accused used the deadly weapon; or caused SC No.53/2008 State v. Dilshad @ Sonu and others 24/29 grievous hurt; or attempted to cause death or grievous hurt and
iii) the above acts were done during the commission of robbery or dacoity.
75.Since testimonies of complainant and other official witnesses are not corroborative and no weapon has been recovered in the present case. Hence, this court comes to the conclusion that prosecution has failed to lead any evidence to show that accused had used the "deadly weapon" while committing robbery, thus, in view of this court, ingredients of offence under Section 397 IPC are not attracted in this case. In the absence of necessary ingredients that have not been established by the prosecution, conviction of accused under Section 397 IPC cannot be awarded.
76.In reference to section 392 IPC, since ingredients of that section has also not been complied with, hence, it will not be safe to convict the accused persons merely on conjectures and surmises.
77.Further, story of prosecution is not corroborated with any of the PWs. Otherwise also, the prosecution has been unable to prove that it were the accused persons who committed robbery and while committing robbery accused Dilshad had used a deadly weapon i.e. Countrymade pistol.
78.Moreover, there is no public witness to the recovery except official witnesses and complainant. Therefore, conviction for the offences u/s 392, and 397 IPC solely SC No.53/2008 State v. Dilshad @ Sonu and others 25/29 on the testimony of police officials will result into miscarriage of justice. Hon'ble Supreme Court in case titled as 'Sans Pal Singh Vs. State of Delhi 1999 Cri. L.J.19' has held that :
"Recovery of country made pistol and live cartridge from the pocket of the accused based only on evidence of police - No public witnesses, even though available, associated to witness recovery Conviction Cannot be maintained. Inter alia, it has been urged by learned counsel for the appellant that it would not be safe to maintain the conviction because the recovery of the illicit arms did not inspire confidence, supported as it is, by the evidence of two police officials alone, unassociated by the testimony of any independent witness. It has also been urged that witnesses of the public were available and neither were they associated nor was any explanation given at the trial as to why they were not associated. From the evidence of PW5 HC Sat Pal singh, it is clear that the police party did not ask any public witness to be witness at the time of search of the accused. Likewise, PW6 SI Mahipal Singh has also stated that no public witness was joined at the time of the search of the accused even though a number of persons were passing through at the time when the recovery was being effected. It is thus evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different matter altogether had there been no public witness available or none was willing to associate. Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus, we got to the view that it would be unsafe to maintain the conviction of the appellant for the offence charged. We, therefore, order his acquittal. He is in jail. He be set at liberty forthwith."
79.Hon'ble High Court of Delhi in case 'Pritam Singh Vs. State cited as 1998(1) JCC (Delhi) 94' where it has been observed that: "the recovery should be made in presence of independent witnesses if available and the search and seizure in compliance of section 100(4) of Cr. P. C., would vitiate the trial."
SC No.53/2008
State v. Dilshad @ Sonu and others 26/29 In the case titled 'Nanak Chand vs. State of Delhi 1991Journal of Crl. Cases, Delhi High Court, page no.1(1991 JCC 1)' has been observed that : '...recoveries proved by the police official who differ on the timings ............................... the recovery was effected from the place that houses of both the sides and yet no witness from the public has been produced, not that in every case the police officials are to be treated unworthy of reliance but their failure to join witnesses from public special when they are available at their elbow, may, as in the present case cast doubt...'...officials have churned out a stereo typed version with material difference of timings, it is a rejection needs no Napaleon on the bridge at Arcola'
80.Further, accused persons were arrested on 28.01.2008 in case FIR No.25/2008 but in the charge sheet dated 16.04.2008 I.O. has no where mentioned that how the present accused persons were arrested and linked with the case FIR No.22/2008. Merely, mentioning in chargesheet that accused persons were arrested during investigation in case FIR No.25/2008 is not sufficient to link the accused persons with present case i.e. in case FIR No.22/2008.
81.Further, PW1 deposed in his testimony that accused persons had fired upon him while committing the crime but no recovery could be effected to this effect. Hence, it cannot be presumed that facts has been corroborated by circumstantial or ocular evidence.
SC No.53/2008
State v. Dilshad @ Sonu and others 27/29
82.Further as per complaint that accused persons had robbed his cash in Haryali Basmati Chawal whereas recovery bag was printed with Haryali Basmati Premium Chawal which also not corroborated with the fact of complainant.
83.Further, site plan Ex.PW10/A does not bear the signature of complainant whereas as per I.O. site plan was prepared at the instance of complainant. Moreover, complainant has also deposed in his testimony that site plan was not prepared in his presence.
84.Considering the entire material available on record, case of prosecution comes under the principle of possibility of two views. Since it is a settled law where two possible views and view support to the accused must be adopted as facts of present case story of prosecution is not corroborated with the testimonies of PWs and in absence of non examination of public witness, case of prosecution comes under the shadow of doubt.
85.In the facts and circumstances of this case, this court comes to the conclusion that prosecution has been failed to prove its charges against accused persons namely Dilshad @ Sonu, Fazlu and Sunil Kumar beyond reasonable doubt.
86.Hence, in the absence of sufficient evidence against the accused persons this court acquit accused Dilshad @ Sonu from the charges u/s 392/397/34 IPC by giving him benefit of doubt and also acquit accused persons namely Fazlu and Sunil SC No.53/2008 State v. Dilshad @ Sonu and others 28/29 Kumar from the charges u/s 392/34 IPC in absence of sufficient evidence by giving them benefit of doubt.
87.In terms of Section 437 (A) Cr. P.C. accused persons namely Dilshad @ Sonu, Fazlu and Sunil Kumar are directed to execute bail bond in sum of Rs.20,000/ each with one surety in the like amount for the period of six months. Order accordingly.
PRONOUNCED IN THE OPEN COURT ON THIS 28.01.2013.
(RAMESH KUMARII)
ASJ01/ NORTH - EAST
KARKARDOOMA COURTS, DELHI
SC No.53/2008
State v. Dilshad @ Sonu and others 29/29