Delhi District Court
State vs 1. Sunil on 20 September, 2019
IN THE COURT OF ADDITIONAL SESSION JUDGE 03
NORTHWEST : ROHINI : DELHI
Session Case No. 52166/16
CNR No. DLNW010006632012
FIR No. 170/2012
PS Bharat Nagar
Under Section 392/397/411/34 IPC
State Versus 1. Sunil
S/o Tulsi Ram
R/o H.No. 10685, Gali No. 8,
Andha Mughal, Pratap Nagar,
Delhi
2. Rajender Kumar @ Kallan
S/o Sh. Suresh Chand
R/o H.No. B2/255256,
Sector20, Rohini, Delhi
3. Sonu @ Kaliaya
S/o Sh. Dharam Singh
R/o H.No. 10613, Gali No. 6,
Andha Mughal, Pratap Nagar,
Delhi
Date of Institution of chargesheet : 23.11.2012
Date of Institution in Sessions Court : 22.12.2012
Date of arguments : 04.09.2019
Date of Judgement : 20.09.2019
JUDGEMENT
1. Brief facts leading to the trial of the accused persons for offence under Section 392/397/34 and 411/412 IPC as disclosed in the Chargesheet is that on 24.07.2012 complainant Raibral Soloman FIR No. 170/2012 State v. Sunil Kumar etc. Page No. 1 of 22 David (PW3) came to police station Bharat Nagar and got recorded his statement to the ASI Arvind Kumar (PW9) to the effect that while he was going from his house to his office at Raj Niwas Marg, at about 9:30 AM on the Gulab Singh Marg when he was near MontFort School, Ashok Vihar, two grey color scooter borne person came parallel to his car on the left hand side and told him aloud that tyre of his car had got punctured and then slowed down their scooter to come behind his car. He in order to check puncture in the tyre drove his car to the left side of the road and stopped it. No sooner did he stop his car when said two scooterist stopped their scooter by the side of front right side door of his car and the pillion rider quickly got down of the scooter and entered in his car from front left door of the car and sat on the front left side seat.
2. Complainant could not come out of the car because scooter was stopped very close to car. The person who entered and sat on the front left side seat of the car, took out a pistol and put on his stomach and asked him to handover whatever he had otherwise he would be shot. He informed that he is Father in church and they should not behave with him like this. But that person told him in Haryanvi dialect that he should handover his purse which he did out of fear. Said person took out about Rs 13,000/ from the said purse and threw the purse in the car thereafter robbed him of his gold chain with cross pendant, ring studded with diamond and wrist watch of make Titan of silver color, thereafter they fled from the spot with the booty towards Keshavpuram side. As the number plate of the scooter was rusted he could not note down the registration number of the scooter.
FIR No. 170/2012 State v. Sunil Kumar etc. Page No. 2 of 22
3. The person who had entered into the car was aged about 3035 years, of fair complexion, of average built and was having beard. He was wearing orange cap, blue jeans and light blue color Tshirt. The person who stood outside on scooter was also aged about 3035 years, of average built, of wheatish complexion and was wearing brown color pant and soiled shirt.
4. On the statement of the complainant ASI Arvind Singh (PW9) endorse the same and took the rukka to the DO HC Vir Sen (PW1) to register FIR. HC Vir Sen (PW1) registered the FIR and handed over the rukka and copy of FIR to ASI Arvind Singh. ASI Arvind Kumar along with the complainant went back to the spot near Montfort School and at the instance of the complainant prepared the site plan of place of incident. Thereafter accused were searched but no clue of them could be traced.
5. During investigation, on 27.09.2012 SI Ranbir Singh (PW7) informed that accused Sunil who was arrested in FIR No. 220/2012 dt 27.09.2012 U/s 25 Arms Act PS Bharat Nagar had disclosed about his involvement along with his friend Sonu, in the present case. He also told that a loaded pistol and motorcycle was recovered from him. Necessary document was taken from SI Ranbir Singh. SI Ranbir Singh handed over the custody of the accused to ASI Arvind Kumar (PW9) and interrogation from accused Sunil was carried out. Accused Sunil admitted of having carried out the robbery along with his friend Sonu @ Kalia. He was arrested in the present FIR No. 170/2012 State v. Sunil Kumar etc. Page No. 3 of 22 case and his disclosure statement was recorded. He also admitted that the loaded pistol recovered from him was used by him in carrying out the robbery of the present case. After recording statement of the witnesses accused was produced before Duty MM in muffled face and application for conducting Test Identification Parade (in short TIP) was filed but accused refused to participate in the TIP. He was taken into two days police remand.
6. On 29.09.2012 on the identification of accused Sunil, accused Rajender @ Kallan of M/s Baba Jewellers and Properties Shop No. B2/255256 Sec20 Rohini, Delhi to whom accused Sunil had sold the robbed gold chain and ring, was arrested and from his locker two chain which were kept hidden were recovered. One of the chain was found broken into two pieces and another chain was with Cross pendant. Both were taken into possession. Accused Rajender was arrested and his disclosure statement was recorded. After that case properties were deposited in maalkhaana.
7. On 30.09.2012 on the identification of accused Sunil, accused Sonu @ Kalia was apprehended from Bus stop Chowki No.2 Near Ganda Nala and later arrested after interrogation along with his Yamaha motorcycle DL1SN8218. His disclosure statement was recorded and accused produced his wrist watch make Titan with square dial and of steel color, as the one which was robbed in the present case. Accused Sonu @ Kalia in muffled face identified the place of incident. He was produced before the Ld. MM. His TIP was conducted and accused Sonu was identified by the complainant. In FIR No. 170/2012 State v. Sunil Kumar etc. Page No. 4 of 22 Judicial TIP of the articles complainant identified his chain and wrist watch.
8. After completion of investigation chargesheet was filed against all the three accused persons. Ld MM took cognizance of the offense and after complying with the provision of Section 207 CrPC, committed the case to the Session Court and was finally assigned to this court. Ld. Predecessor of this Court prima facie finding case against accused persons being made out, was pleased to frame requisite charges against the accused persons i.e. Accused Sunil and Sonu @ Kalia was charged with offence under Section 392/34 IPC, accused Sunil was charged with offence under Section397 IPC, accused Sonu @ Kalia was also charged with offence under Section 411 IPC and Accused Rajender was charged with offence under Section 411 IPC. All the accused persons pleaded not guilty to their respective charges and claimed trial.
9. In order to prove its case, prosecution has examined ten witnesses out of which one is the complainant and one is Ld. MM who conducted judicial TIP of the accused Sonu @ Kalia. Rest all are the police witnesses.
10. PW1 W/HC Surender Kaur sought to prove registration of the FIR bearing no. 170/2012 i.e. the present case.
11. PW2 HC Veer Sain sought to prove the registration of FIR bearing no. 220/2012 u/s 25 of the Arms Act against the accused FIR No. 170/2012 State v. Sunil Kumar etc. Page No. 5 of 22 Sunil Kumar following which he was arrested in the present case.
12. PW3 Rev Solomon David is the complainant. He sought to prove his complaint by detail account of the incident, preparation of site plan at his instance, his identification of the accused Sunil Kumar in the police station, his identification of the accused Sonu @ Kalia in judicial TIP and his identification of the robbed articles i.e. chain with pendant and his wrist watch and superdarinama.
13. PW4 HC Rajeev Kumar sought to prove how accused Sunil Kumar was arrested in routine checking of vehicle by putting barricades on the road. He also sought to prove recovery of loaded pistol and motorcycle from the possession of the accused Sunil Kumar, his arrest in FIR No. 220/12, his arrest in the present case, his personal search, disclosure statement, how accused Sunil took the police party to Baba Jewelers, how accused Rajender was arrested, how at his instance two gold chains one broken and one attached with pendant was recovered and seized. He also sought to prove that accused Sunil was identified by the complainant in the police station. He also sought to prove the arrest of accused Sonu @ Kalia from the bus stand, Chowki No. 2 near ganda nala and recovery of wrist watch and motorcycle from him and disclosure statement, arrest memo and personal search memo etc.
14. Testimony of PW5 Ct. Darvesh is also to the same effect as that of PW4.
FIR No. 170/2012 State v. Sunil Kumar etc. Page No. 6 of 22
15. PW6 Sh. Sewa Ram, Ahlmad/JJA in the Court of Sh. Vijay Shankar, Ld. ACMM had brought the judicial file of the case titled "State vs. Sunil" arising out of FIR No. 220/12 PS Bharat Nagar.
16. Testimony of PW7 SI Ranbir Singh is to the same effect as that of PW4 and PW5.
17. PW8 Ms. Rachna Tiwari Lakhanpal is Ld. MM who sought to prove judicial TIP of accused Sonu.
18. PW9 ASI Arvind Kumar is the investigating officer who sought to prove his investigation.
19. PW10 HC Niyzuden is the MHC(M) who sought to prove the depositing of the case property in the maalkhana and sending of pullindas for judicial TIP.
20. After completion prosecution evidence, all incriminating material as appearing in evidence was put to respective accused persons and their responses under Section 313 CrPC was recorded. Accused Sonu @ Kalia sought to lead evidence and he got examined 4 defense witnesses.
21. DW1 HC Naresh Kumar sought to prove DD No. 7registered with PS Gulabi Bagh on 30.09.2012 at 6:20 am following the PCR call given by the wife of the accused Sonu @ Kalia when he was lifted from his house at 6:15 AM by the person appearing like FIR No. 170/2012 State v. Sunil Kumar etc. Page No. 7 of 22 police.
22. DW2 SI Rajinder Singh sought to prove that accused Sonu @ Kalia was the informer for the police and at his instance accused Sunil was arrested in robbery case on 02.03.2011.
23. DW3 ASI Anand Singh sought to prove PCR call made by wife of accused Sonu @ Kalia on 30.09.2012 at 6:16 am.
24. DW4 is retired SI Shiv Raj sought to prove the arrest of accused Sunil on 02.03.2011 by Special Team Crime Branch and kalandra thereof.
25. After conclusion of defense evidence both side addressed their respective arguments in support of their case.
26. Ld. APP for the State has submitted that prosecution has successfully proved its case beyond reasonable doubts. He has drawn attention of the court to the testimony of the complainant who has repeated the detail account of the incident and the manner in which it took place without any discrepancy or improvement. He has further drawn attention of the court to the fact that accused persons particularly accused Sunil and Sonu @ Kalia were duly identified not only in the judicial TIP (in respect of accused Sonu @ Kalia) and in police station but also before the court. He has further argued that prosecution successfully proved that gold chain with pendant was recovered from accused Rajender to whom accused has sold it and FIR No. 170/2012 State v. Sunil Kumar etc. Page No. 8 of 22 that wrist watch was recovered from accused Sonu @ Kalia. He has further submitted that complainant identified the recovered articles in the judicial proceedings. He has further submitted that defense has not been able to elicit any material discrepancy or improvement in the testimony of witnesses which could demolish the case of the prosecution. Hence, he has prayed for returning the finding of conviction against all the accused persons.
27. Per contra, Ld. Defence counsel for the accused persons have submitted that prosecution has miserably failed to prove its case beyond reasonable doubts.
28. Shri Rajesh Tanwar, Ld. Counsel for the accused Sonu and Rajedner has drawn attention of the court to the testimony of complainant PW3 wherein he specifically testified that out of the two assailants, one had entered into his car, put pistol on his stomach and had robbed him of Rs. 13,000/, gold chain with cross pendant and diamond studded ring. He has submitted that complainant/witness PW3 Rev Solomon David had described the complexion of the said assailant who entered into his car as per him was a man of fair complexion whereas the other assailant who was standing outside the car on the scooter was described to be man of wheatish complexion. He has submitted that PW3 in his examinationinchief have identified the accused Sonu @ Kalia as the one who had entered into the car whereas he had identified the accused Sunil Kumar as the one who had put pistol on the stomach of the complainant. He submitted that this is the material discrepancy and due to that identification carried FIR No. 170/2012 State v. Sunil Kumar etc. Page No. 9 of 22 out by the complainant cannot be believed at all. He submitted that based on statement of complainant it is the case of the prosecution that the person who entered into the car of the complainant was the one who had put pistol on his stomach but complainant in his examinationinchief caused severe dent to the case of the prosecution when he deposed that accused Sonu @ Kalia was the one who entered into his car and accused Sunil was the one who had put pistol on his stomach.
29. Shri Rajesh Tanwar, Ld. Counsel for the accused Sonu and Rajedner has further argued that admittedly the complexion of the accused Sonu @ Kalia, as per the complainant is black and as per the court observation it is dark but as per complainant the person who had entered into car was of fair complexion and the one who was waiting outside on scooter was of wheatish complexion. Therefore, accused Sonu @ Kalia who is of black complexion as per complainant and of dark complexion as per court observation cannot be either of the two assailants who robbed the complainant on 24.07.2012 near Montfort School Ashok Vihar.
30. He has further argued that accused Sonu @ Kalia had examined 4 witnesses in defence, who proved on record that accused Sonu @ Kalia was working for the police as informer and at his instance accused Sunil was arrested in Karol Bagh robbery on 02.03.2011 and it is because of this enmity accused Sunil named the accused Sonu @ Kalia in the present crime. He has further submitted that even if it is held that he was not working as informer for police FIR No. 170/2012 State v. Sunil Kumar etc. Page No. 10 of 22 then at least it stands proved that he was lifted from his house and was not arrested the way prosecution has projected. He has further argued that the standard of prove in the case of defence is not as that of proof beyond reasonable doubts. Accused has got to prove his case on preponderance of probability, hence he has argued that accused Sonu @ Kalia be acquitted in the present case.
31. Sh Rajesh Tanwar has further argued that recovery of gold chain from accused Rajender is not believable for the reason that if accused Rajender knew that he was buying robbed article or had reason to believe that same is robbed article, then it could not be accepted that he would keep the chain in nonmelted condition for 45 days. He has further argued that if at all it is taken that chain was recovered from him then it goes to show that he was not aware that the said chain was robbed or had no reason to believe that it was robbed article otherwise he would not have kept it in intact condition and therefore, it is contended that offence u/S 411 IPC is not made out against the accused Rajender. Hence, he had prayed that both accused Sonu @ Kalia and Rajender be acquitted of the offense charged against.
32. Sh. Sunil Kumar, Ld Counsel for accused Sunil has also highlighted discrepancies in the testimonies as noted above terming them as material one and has contended that in the said background identification by the complainant either in police station or in court has no value in the eyes of law and accused Sunil is entitled to be acquitted. He has further submitted that it is the case of the FIR No. 170/2012 State v. Sunil Kumar etc. Page No. 11 of 22 prosecution that complainant had identified accused Sunil in the PS but complainant himself did not depose to this effect in his examination in chief. In any case, this goes to show that accused Sunil was shown to the complainant and therefore his identification in the court is of no value. He has further submitted that prosecution did not confront the complainant with alleged recovered pistol nor did complainant claim that he would identify the weapon nor prosecution produced the gold chain which was recovered from accused Rajender to whom gold chain was allegedly sold. Neither the alleged recovered articles were produced in the court nor did prosecution examine the Ld. MM before whom article was identified by the complainant. Hence, he has prayed that accused Sunil be acquitted of the all the charges.
33. Having heard rival submission it is noticed that prosecution is attempting to prove its case through an eye witness coupled with recovery of articles. So far as offense under Section 392/397 is concerned complainant PW3 Rev Solomon David is the star witness. If complainant remains successful in identification of the two accused who robbed him then more than half of the job of the prosecution would stand done.
34. Complainant PW3 Rev Solomon David in his examination inchief gave detail account of the incident as noted above in the brief facts. He in his complaint Ex PW3/A had given physical description of the assailants particularly in terms of their complexion. He had stated in his complaint that the person who had entered into his car was of FIR No. 170/2012 State v. Sunil Kumar etc. Page No. 12 of 22 fair complexion and the one who stood outside on scooter was of wheatish complexion. Even in his examinationinchief he deposed to the same effect. He then identified accused Sonu @ Kalia who is of dark complexion as the one who had entered into the car. He then identified accused Sunil as the one who had put pistol on his stomach. Complainant in his complaint Ex PW3/A as well as in his examinationinchief had stated/deposed that the person who entered into his car had put pistol on his (complainant) stomach. Now if Sunil was the one who had put pistol on his stomach then he was the one who had entered into his car but PW3 Rev Solomon specifically deposed that it was accused Sonu who had entered into his car.
35. This two facts that accused Sonu entered into his car and accused Sunil put pistol on his stomach are in sharp contradiction to the case of the prosecution and are irreconcilable. Further complexion of Sonu @ Kalia is also not going down well with specific observation by the complainant that the person who entered into his car was of fair complexion. Hence, on the point of participation of the accused in the crime and on the point of identification of accused Sunil and Sonu @ Kalia, corroboration from other sources is needed but except for PW3 no other person had witnessed the incident.
36. It is the case of the prosecution that during routine checking after putting barricades on 27.09.2012 near Picnic Hut on road leading to Sunder Lal Jain Hospital, Ashok Vihar at about 12:35 PM accused Sunil was apprehended with loaded pistol and motorcycle and then FIR bearing No. 220/12 PS Bharat Nagar was registered FIR No. 170/2012 State v. Sunil Kumar etc. Page No. 13 of 22 under Section 25 Arms Act and was arrested in the said case. In the disclosure statement he admitted of having committed many crimes including the present one. Then such information was passed on to present ASI Arvind Kumar(PW9) who after interrogation arrested accused Sunil in the present case and his disclosure statement Ex PW4/B was recorded.
37. It is the case of the prosecution that accused Sunil had disclosed that the loaded pistol Ex P3 which was recovered from him was used by him during the course of robbery in the present case. But despite that said pistol was not put before complainant PW3 Rev Solomon David when he was in witness box so as to find out if he could confirm the same by identifying it. In fact said pistol was even not made case property in the present case.
38. It is further the case of the prosecution that accused Sunil had disclosed in his disclosure statement Ex PW4/B that he had sold the robbed gold chain with Cross pendant and diamond studded gold ring to Kallan, the goldsmith and the owner of Baba Jwellers, B Block, Sector 20, Rohini. It is further the case of the prosecution that during police remand accused Sunil on 29.09.2012 took the police party to Baba Jewellers and got the gold chain with pendant recovered.
39. Witness to this recovery are PW4 HC Rajeev Kumar, PW5 Ct. Darvesh and IO PW9 ASI Arvind Kumar. It is the case of defense that recovery of gold chain from accused Rajinder at the instance of FIR No. 170/2012 State v. Sunil Kumar etc. Page No. 14 of 22 accused Sunil is planted. Neither accused ever pointed out to Baba Jewelleres nor to any of its owner nor was anything recovered from him.
40. All three witness i.e. PW4, PW5 and PW9 consistently deposed in their respective examinationinchief that on 29.09.2012 accused who was in police custody took them to various place i.e. Andhamugal, Pratap Nagar, Mangolpuri etc but nothing could be recovered from these places at his instance. Thereafter he took them to B255,256, Sector20, Rohini, Delhi at Babaji Jewellers and Properties and accused Sunil while pointing out towards the person who was sitting in the shop stated that he was the one to whom he used to sell the stolen properties/goods. Said person namely Rajender @ Kallan was interrogated and from his possession IO had recovered two gold chains. One of the chain had Cross pendant and another chain was broken. ASI Arvind took into possession the chain with Cross pendant, in sealed cloth pullinda sealed with seal of 'AK' vide seizure memo Ex PW4/E. Gold Chain were identified by these witnesses in photographs Ex P5 and Ex P6
41. PW4 HC Rajeev and PW5 Ct. Darvesh had deposed that two gold chains were recovered from his (Rajender) possession. However, PW9 IO ASI Arvind Kumar deposed that accused Rajender himself took out two chains from locker out of which one was having a locket and another chain was found broken into two pieces. He had further deposed that after seeing the chains accused Sunil had pointed towards a chain with locket as the one which was robbed by him from FIR No. 170/2012 State v. Sunil Kumar etc. Page No. 15 of 22 the possession of a person in front of Montfort School.
42. In cross examination PW4 deposed that they had left PS on 29.09.2012 at about 12:00 noon. PW5 deposed that on 29.09.2012 he had joined investigation at about 11:00 AM - 12:00 noon. He deposed that they had reached Rohini in evening time. However, PW9 on his cross examination deposed that on 29.09.2012 he had left police station for the purpose of investigation in the morning itself. PW9 further deposed in cross examination that they had gone in Govt Gypsy of the SHO and SHO was sitting alongside the driver and they were sitting on back seat of the gypsy. PW4 and PW5 did not remember where they were sitting in the Gypsy. PW9 deposed in cross examination that they had reached Rohini at about 6:00 6:30 PM.
43. PW4 HC Rajeev Kumar and PW5 Ct. Darvesh did not depose that SHO was also with them. SHO has also not been cited as witness. It is not the case of the ASI Arvind Kumar that SHO had got down from the Gypsy at any particular point before reaching Rohini. Further, PW4 HC Rajeev Kumar and PW5 Ct. Darvesh deposed that they join investigation in the noon on 29.09.2012 but IO PW9 ASI Arvind Kumar deposed that they had left PS in the morning itself. Moreover, PW3 Rev Solomon though had got released the chain on superdari but sold it without producing it in the court at the time of recording of evidence and without seeking permission of the Court. Further, photographs of the gold chain Ex P5 and P6 were not shown to PW3 Rev Solomon for his identification. Neither negative of the FIR No. 170/2012 State v. Sunil Kumar etc. Page No. 16 of 22 photographs, if any, nor the photographer nor certificate under Section 65 B of Evidence Act was produced in respect of photographs Ex P5 and Ex P6. These discrepancies and deficiencies do not inspire confidence of the Court that accused Rajender was arrested in the manner prosecution has projected nor it inspire the confidence of the Court to hold that the gold chain with Cross pendant was recovered from accused Rajender and was the one robbed from complainant. Thus, accused Sunil and Sonu @ Kalia were the one who had carried out the robbery in the present case is not corroborated from above noted alleged fact of recovery of robbed gold chain with pendant from accused Rajender at the instance of accused Sunil.
44. It is the case of the prosecution that on 30.09.2012 accused Sonu @ Kalia was arrested at the instance of accused Sunil from Bus Stand, Chowki No.2 near Ganda naala alongwith his motorcycle and from him wrist watch Titan make was recovered. The Titan watch was the one which was robbed of the complainant and complainant identified the same in TIP and got released on superdari. It is further the case of the prosecution that accused Sonu @ Kalia was identified by the complainant in judicial TIP and in the court also.
45. Witness to arrest of accused Sonu @ Kalia and recovery of wrist watch from him, are PW4 HC Rajeev Kumar, PW5 Ct. Darvesh and IO PW9 ASI Arvind Kumar.
46. Both PW4 HC Rajeev Kumar and PW5 Ct. Darvesh in their respective examinationinchief deposed that on 30.09.2012 they FIR No. 170/2012 State v. Sunil Kumar etc. Page No. 17 of 22 left PS with accused Sunil in search of the case property and accused Sunil again took them to Andhamugal, Shastri Nagar, Pratap Nagar and when they were near Bus Stand, Chowki No.2, near Ganda Naala there a person was standing. Accused Sunil pointed towards said person and disclosed to ASI Arvind Kumar that the person standing near Ganda naala was Sonu @ Kalia who was his coaccused. ASI Arvind then apprehended said Sonu @ Kalia and made enquiries from him. Accused Sonu was wearing a watch make Titan. The said watch was involved in the present case and same was taken into possession vide seizure memo Ex PW4/J. Motorcycle which accused Sonu @ Kalia was having was seized vide seizure memo Ex PW4/K. His disclosure statement Ex PW4/L was recorded.
47. PW9 ASI Arvind Kumar in his examinationinchief deposed that on 30.09.3012 he alongwith HC Rajeev Kumar, Ct, Darvesh and Ct. Jitender left the PS with accused Sunil in search of other accused. They reached Chowki No.2, Bharat Nagar near Ganda Naala and there accused Sunil pointed towards one persons who was sitting on Yamaha motorcycle and told them that he was Sonu Kalia who was involved in commission of robbery with him. Said person was overpowered by police party and he disclosed his name as Sonu @ Kalia. He was interrogated and arrested in this case vide arrest memo Ex PW4/M and his personal search was conducted vide memo Ex PW4/N. Disclosure statement Ex PW4/O was recorded and Sonu also got recovered a Titan watch which he was wearing at that time which was taken into possession vide seizure memo Ex Ex PW4/J. FIR No. 170/2012 State v. Sunil Kumar etc. Page No. 18 of 22
48. In his cross examination PW4 HC Rajeev Kumar deposed that accused Sonu @ Kalia had met them on pointing out of Sunil after about one hour of leaving police station. PW5 Ct Darvesh deposed that on 30.09.2012 they had searched for coaccused in Andhamugal, Pratap Nagar and other area but he did not remember the exact route which was taken by them after leaving the police station. PW9 ASI Arvind Kumar deposed that they had left police station on 30.09.2012 at 7:00 AM. He further deposed that they had left in police Gypsy and SHO Insp. Rajender Prasad was with them. They had searched for the accused Sonu in the area of Andhamugal for about one hour. They had visited the area of Andhamugal via Bharat Nagar Ganda Naala, Chowki No.2 and Gulabi Bagh. He however did not remember through whom motorcycle was sent to police station.
49. It is the case of accused Sonu @ Kalia that he was lifted from his house in the morning at about 6.15 AM on 30.09.2012. In order to prove the same accused Sonu examined DW1 HC Naresh Kumar who brought the DD Register containing DD entries with respect to PD Gulabi Bagh, recorded on 30.09.2012 and it contained DD No. 7 which was recored at 6:20 AM. Copy of said DD is Ex DW1/A. Its content shows that Police Control Room had transferred information received in PCR to the effect that some persons had taken away the husband of the caller of House No. 10643, Gali No.7, Andhamugal, Shani Bazar. Said information was passed on to ASI Sunder Singh for his appropriate action.
50. Vide DD No. 8 of the same day it is recored at 7:30 AM FIR No. 170/2012 State v. Sunil Kumar etc. Page No. 19 of 22 that ASI Sunder Singh after attending call vide DD No.7 had reported on his return that on reaching spot Smt Seema W/o Sonu @ Kalia met him that her husband had been lifted by some persons who appears to be police man. He later came to know that Sonu @ Kalia was the top BC of PS Gulabi Bagh and police personnel of some police station have taken him away for enquiries in respect of a case. Hence DD No.7A was closed after intimation to IO.
51. Accused Sonu also examined DW3 ASI Anand Singh and he produced the PCR form dated 30.09.2012 Ex DW3/A along with certificate Ex DW3/B under Section 65B of Evidence Act. Said PCR call was made by the wife of the accused when he was picked up from is house in the morning which information was given to PS Gulabi Bagh vide DD No. 7 as discussed above. These are police record and was recorded even before accused was arrested in the present case as set up by prosecution discussed above. There cross examination did not bring out any thing which could make the testimony of DW1 and DW3 untrustworthy.
52. Accused has to prove his defense on the basis of preponderance of probability whereas prosecution has to prove its case beyond reasonable doubt. Keeping in mind the evidence led by accused Sonu qua his arrest it does cast a serious doubt about the way prosecution has set up the case regarding apprehension and arrest of the accused Sonu @ Kalia. With the manner of arrest of the accused going into clouds of doubt, recovery of wrist watch also goes because accused Sonu @ Kalia was not arrested the way prosecution has FIR No. 170/2012 State v. Sunil Kumar etc. Page No. 20 of 22 projected. If watch was not planted upon him then there was no need to project the arrest in different manner than it actually took place. It cannot be said that he knew of his arrest in advance on 30.09.2012 and therefore had made prearrangement by getting falsely informed PCR etc. Hence, possibility of wrist watch being planted cannot be ruled out. Thus, accused Sunil and Sonu @ Kalia were the one who had carried out the robbery in the present case is not corroborated from above noted alleged fact of arrest of accused Sonu allegedly at the instance of accused Sunil and recovery of robbed wrist watch from accused Sonu @ Kalia as noted above.
53. There is no other evidence on record worth discussion for connecting the accused persons Sunil and Sonu @ Kalia with the robbery involved. Sunil was though identified as the person who had put pistol on his stomach but complainant himself split the act of putting pistol and robbing by one assailant entering the car, into two as already discussed above and thus thereby rendered himself unreliable for the Court to act on his sole testimony. Hence, benefits of doubt has got to be given to the accused persons. In the absence of sufficient evidence against accused persons, all the accused persons are hereby acquitted of all the charges they have been tried for in the present case.
54. Bail bonds and surety bonds of the respective accused persons are cancelled. Original documents, if any, of respective sureties be returned to them as per rules.
FIR No. 170/2012 State v. Sunil Kumar etc. Page No. 21 of 22
55. In terms of Section 437 A CrPC each of the accused persons are required to furnish bond of Rs 20,000/ each with one surety of like amount, which shall remain valid for a period of six months.
56. Nothing else remains to be adjudicated in the present, hence, present file be consigned to Record Room after necessary compliance.
Digitally signed by HARISH HARISH KUMAR
Date:
KUMAR 2019.09.23
14:54:50
+0530
Announced in open court (HARISH KUMAR)
(Judgement contains 22 pages) ADDL. SESSIONS JUDGE - 03,
NORTH WEST, ROHINI COURTS
NEW DELHI / 20.09.2019
FIR No. 170/2012 State v. Sunil Kumar etc. Page No. 22 of 22