Delhi District Court
State vs Mahender @ Minder Etc. on 9 May, 2019
1
IN THE COURT OF MS. NIRJA BHATIA
ADDITIONAL SESSIONS JUDGE03, (WEST)
TIS HAZARI COURTS, DELHI
SC No. 57734/2016
State Vs Mahender @ Minder etc.
FIR No. 225/2011
PS Tilak Nagar
U/s. 392/394/397/411/201/34 IPC
JUDGEMENT
1 Sl. No. of the case 57734/2016
2 Date of Committal to Sessions 31.10.2011
3 Name of the complainant Avdesh Kumar
4 Date of commission of offence 15.07.2011
5 Name and Parentage of 1. Mahender @ Minder
accused S/o Sh. Trilok Singh,
R/o A596, 12.5 Yard,
Raghubir Nagar, Tilak Nagar,
Delhi.
2. T. T. S/o Sh. Nikka Singh
R/o K40, Shyam Nagar, Tilak
Nagar, Delhi.
3. Raja S/o Sh. Bhola Singh
R/o 383, TC Camp, Raghubir
Nagar, New Delhi.
6 Offence complained of Under Section
392/394/397/411/201/34 IPC
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2
7 Offence charged Under Section
392/394/397/411/201/34 IPC
8 Plea of guilt Pleaded Not Guilty
9 Final order Acquitted
10 Date on which order reserved 09.05.2019
11 Date on which order 09.05.2019
announced
BRIEF FACTS:
1. Brief facts of the case have been detailed by complainant Avdesh Kumar stating that he is the resident of WZ 796, Vishnu Garden, Tilak Nagar, Delhi and had been employed as Electrician on contract at DDU hospital, and that on 15.07.2011, after finishing his work was going to his home on bicycle when at about 12.20 am, while had had reached near BSES office, at K Block, Shyam Nagar, Tilak Nagar, Main Road, two boys came in front of him and held his cycle. Out of the two, one boy who appeared to be aged 2223 years, thin built, dark complexion, medium height and was clean shaven held him by his neck, in which while two more boys came out SC No. 57734/2016 State vs. Mahender @ Minder etc. 2 of 50 3 of which, one held him and the other struck him by knife, towards right side of his back and also made him fall on the road. His brown color purse, on which 'Lee' was incripted in english which contained cash of Rs. 8,000/(Rupees eight thousand), his driving license, one photo of complainant, one photo I Card and few visiting cards, was removed from the right side pocket of his worn pant. The accused also removed from him his two mobile phones with SIM numbers 9990813273 and 9268507269. With all above, accused fled from the spot.
2. He then called his brother on phone who took him to DDU hospital, where the IO SI Surender Kumar met him alongwith Ct. Sunil Kumar and recorded his statement during which, he also stated that he can identify the accused persons if they are brought before him.
3. In the background of aforesaid revelation, IO got the FIR u/s 392/394/34 IPC registered through Tehrir sent through Ct. Sunil Kumar.
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4. Efforts to search eye witness were made, however, none was found.
5. At hospital, IO received one sealed pullanda containing blood stained 'Vest' of Avdesh which was sealed with the seal of DDU, CMO hospital which was seized by IO. He also received one blood stained shirt from complainant Avdesh at DDU hospital itself which was bearing cut on the back due to knife which was seized with the seal of SK.
6. No independent public witness could be found and no information qua the accused was received, and as complainant was discharged from hospital on 19.07.2011, IO prepared site plan on pointing out the complainant and also asked for call detail through the office of ACP/TN office and on receiving the information through secret informer, it was found that one Akash @ Noni, S/o Bijender was in possession of the phone, and as it was revealed that Akash @ Noni happens to be a juvenile, SI Devender was called for carrying further investigation from juvenile, during which, it was SC No. 57734/2016 State vs. Mahender @ Minder etc. 4 of 50 5 revealed that Juvenile Akash @ Noni had received the phone from one T.T.. The mobile phone was seized and the apprehension intimation of the juvenile was sent to JJB, Kingsway Camp.
7. That on 17.08.2011, IO SI Surender Kumar received information from ASI Pradeep Rathi that in case FIR No. 265/11, u/s 186/353/324/332 IPC under jurisdiction of PS Tilak Nagar, one accused namely Mehender @ Minder has made a disclosure statement about having committed of offence of this case, the copy of which disclosure was sent by ASI Pradeep Rathi, where after it was revealed that the aforesaid occurrence is caused by accused Mahender @ Minder alongwith accused Raja @ Tidda and T.T. Accused Mehender @ Minder was arrested and in his disclosure, he revealed and pointed the place of incident on which, a separate pointing memo was made. The accused Mehender @ Minder was produced in muffled face before the court for getting the date for TIP fixed and the accused was remanded SC No. 57734/2016 State vs. Mahender @ Minder etc. 5 of 50 6 to JC for a day. On 18.08.2011, the Link MM fixed 25.08.2011 for TIP and the remand of the accused was got extended till 26.08.2011. On 25.08.2011, the TIP could not be conducted due to Ld. Link MM being on leave which was again fixed for 29.08.2011 on which date, TIP was refused by accused Mehender @ Minder.
8. That on 26.08.2011, HC Surender No. 629/W informed the IO that he has arrested accused T.T. in another case bearing no. 282/15, u/s 25/54/59 of PS Tilak Nagar. In which, he had made disclosure and has stated to have committed offence u/s 392/394/411/34 IPC registered under this FIR No. 225/11. He also handed over the necessary papers to IO who carried out the arrest of the accused and recorded his separate disclosure. Accused T.T. also pointed out to the place of occurrence for which, a pointing out memo was made. Accused T.T. was produced before the court in muffled face and the date for TIP was fixed for 29.08.2011 on which date, accused refused to participate in the TIP proceedings.
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9. Thereafter, IO obtained one day PC remand of both the accused and on 31.08.2011, both accused were interrogated and made their disclosures. At the instance of accused Mehender @ Minder, one Election Identity Card of complainant Avdesh, S/o Prem Singh was recovered from an Iron box kept in the house of accused Mehender @ Minder on which, Election Commission of India MWW0661017 of Avdesh, S/o Prem Singh was found written which was produced by the accused Mahender @ Minder as the one to have been looted about one month back from a cyclist with the help of his accomplices/other accused. The Election I Card was seized, the recovery site plan was made. Accused Mehender @ Minder and T.T. also revealed about the involvement of accused Raja @ Tidda who was living at H. No. 585, 12.5 yards, T.C. Camp, Raghubir Nagar and identified his house, the seizure of identification of the house of accused Raja @ Tidda was also made and his search was carried out, however, he could not be located and his NBWs SC No. 57734/2016 State vs. Mahender @ Minder etc. 7 of 50 8 were obtained.
10.IO collected the blood sample of victim/complainant Avdesh after moving application in DDU hospital which was obtained by the doctor at DDU hospital and handed over to IO in sealed pullanda with the seal of DDU, CMO hospital and also gave sample seal to IO which were seized and deposited in Malkhana.
11.IO obtained the opinion regarding consistency of weapon of offence from DDU hospital, Forensic Laboratory and certified copy of IP address and CDR of SIM number 8860049650 and thereafter, deposited the sealed parcels for FSL report. Subsequent to receiving the charge sheet on 15.10.2011, the Ld. MM took cognizance on 17.10.2011. At this stage, the charge sheet was filed qua accused Mahender @ Minder and T.T. The bail application of accused persons was rejected vide this order of 17.10.2011. The copies of Challan were supplied and as they were stated to be complete by the counsel supporting to the accused, the case was committed to SC No. 57734/2016 State vs. Mahender @ Minder etc. 8 of 50 9 the case of sessions for accused Mahender @ Minder and T.T.
12.The IO thereafter forwarded the supplementary charge sheet of accused Raja @ Tidda on 20.03.2012 before the Sessions court which was tagged.
13.The charge against the accused Mahender @ Minder and accused T. T. was framed on 13.12.2011 u/s 392/397/397/201/34 IPC, separate charge u/s 411 IPC was also framed against accused Mahender @ Minder and charge against accused Raja @ Tidda was framed on 24.05.2012 u/s 392/397/397/201/34 IPC as well as u/s 411 IPC.
14.In support of the case, prosecution examined 22 witnesses.
15.ASI Rambir Singh deposed as PW1. He was the duty officer on the relevant day of 15.07.2011 and had recorded the FIR at about 02.40 am on the basis of Tehrir sent by IO SI Surender Kumar which was brought to him by Ct. Sunil. He exhibited the original FIR, the copy of which is he exhibited vide Ex.PW1/A. The endorsement made by him is exhibited as SC No. 57734/2016 State vs. Mahender @ Minder etc. 9 of 50 10 Ex.PW1/B. He also brought the DD register containing DD entry 5A and 6A of 15.07.2011 and DD NO. 8A of 21.07.2011 which entries were exhibited as Ex.PW1/C, 1/D and Ex. PW1/E respectively. He was not examined.
16.PW2 ASI Pradeep had brought the original DD register containing DD NO. 28A of 25.08.2011 which entry he exhibited as Ex.PW2/A. He was not cross examined.
17.Complainant Avdesh Kumar was examined as PW3. He narrated that the occurrence is of the month of August, 2011. On the day of occurrence, he was going to his residence from his office and at about 11.3011.45 am when he reached at K Block, near BSES Office, Shyam Nagar, four accused persons came, one of the accused stabbed him on his back. The accused had taken away his purse containing Rs. 8000/ (Rupees Eight thousand), Voter I Card, Driving License etc. alongwith two mobile phones, the number of one which was 9990813273 and other phone was of TATA the number of which he did not remember completely and revealed last four SC No. 57734/2016 State vs. Mahender @ Minder etc. 10 of 50 11 digits as "9268". He stated that after the incident the accused fled from the spot while he remained lying on the road and after getting up, he went to the nearby shop and informed his brother Bhupender Singh through someone's mobile phone. After about 10 minutes, his brother Bhupender Singh reached and he was removed to DDU hospital where he was admitted. He made his statement to police from DDU hospital which he exhibited as Ex.PW3/A bearing his signature at point A. His blood stained shirt was taken by police in possession vide seizure memo Ex.PW3/B bearing his signature at point A. He stated to have shown the place of occurrence to the police officials. He also stated that he did not participate in other proceedings in connection of this case and as the occurrence took place at the time of dark, he could not identify the accused persons who stopped him, stabbed him and robbed him of his two mobile phones and purse at which stage, he was declared hostile and was cross examined by Ld. Addl. PP for the State. During which cross examination, he stated that SC No. 57734/2016 State vs. Mahender @ Minder etc. 11 of 50 12 he was got admitted to DDU hospital by his brother Bhupender Singh. The MLC dated 15.07.2011 of DDU hospital was shown to him which he admitted, however, he denied to have told the police officials that he can identify the accused persons if they are shown to him. He stated that while his statement Ex.PW3/A was recorded, he was in semi conscious condition and the statement Ex.PW3/A was not read over to him. The suggestions that he had put the signatures after the same was recorded at his version which was read over to him and the contents of which he acknowledged to be correct was denied. He further denied that in process of present proceedings, he went to Police Station on 30.08.2011 and saw the accused whom he identified to be the same who caused the incident dated 14/15.07.2011 and their names were reveled as Mehender @ Minder and T.T. He further denied that they were the same accused who were present at the time of his statement being recorded in court and were standing in dock. He further SC No. 57734/2016 State vs. Mahender @ Minder etc. 12 of 50 13 denied that he was not identifying the accused deliberately as having been won over by their friends and relatives. He admitted the Election I Card and driving license which were robbed from him. He stated that he can identify his clothes which were shown to him which he identified and were exhibited as Ex.P1. His vest kept in another sealed parcel was also shown to him which he identified as Ex.P2. The counsels appearing for accused Raja, Mahender @ Minder and T.T. did not cross examine him despite opportunity.
18.PW 4 Ct. Rajbir Singh had joined the investigation with IO SI Surender and had witnessed that accused Mehender @ Minder and T.T. were taken out from lock up where after, accused Minder led them to Jhuggi No. 596, 12.5 Gaj, (sq. yards) Raghubir Nagar and got recovered one Voter ICard in the name of Avdesh, S/o Prem Singh from inside one iron box which was seized in his presence vide seizure memo Ex.PW4/A bearing his signature at point A. Thereafter, accused Mahender @ Minder pointed to the house of accused SC No. 57734/2016 State vs. Mahender @ Minder etc. 13 of 50 14 Raja @ Tidda i.e. 383 and 585. IO prepared the pointing out memo as Ex.PW4/B and Ex.PW4/C bearing the signature of this witness on both at point A. The pointing out memo at the instance of accused T.T. bearing his signature was also exhibited as Ex.PW4/D and Ex.PW4/E. He also deposited the exhibits with FSL Rohini vide RC No. 127/21/11 on 12.10.2011 and handed over the receipt to MHC(M). He stated that case property was not tampered. He identified the accused. In his cross examination, he admitted that he made no DD entry at the PS when he joined the IO in investigation. He further admitted that he had received no directions from SHO for joining the investigation of this case. He claimed that when they reached at the house of accused at about 02.15 am, no public person could be joined as it was late night. The IO knocked 23 gates in his presence but no one came out. The seizure memo was stated to have been prepared at the house of accused while the other documents were made at the respective houses. He could not detail any arrival entry SC No. 57734/2016 State vs. Mahender @ Minder etc. 14 of 50 15 having been made at PS as no number could be divulged.
19.He further admitted that interrogation of accused Minder was made at PS and the disclosure was also recorded at the PS at about 02.00 am in the room of IO where no other person was present. He admitted that the proceedings were done within the jurisdiction of PS Raghubir Nagar however, no attempt was made to join any police official of the said PS. He could not detail the number of the houses knocked by the IO for seeking their assistance for joining them in investigation. He admitted that aged persons were present in the house of accused Minder. Despite the recovery, IO made no attempt to take signatures or thumb impression of those persons or from any other person as the house of the accused is surrounded by other jhuggies. The suggestion that the accused was lifted from his home and has been falsely implicated in the present case and that he made no disclosure statement and or pointing of the house of other accused and that the documents were prepared at the PS were denied.
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20.The brother of victim Bhupender appeared as PW5. He narrated that at about 11.30 pm as he could not detail the date, month and year of the occurrence, he received the phone call from his brother Avdesh narrating that he had been stabbed by some boy and his purse and mobile phone is taken away where after, he rushed the victim/complainant to DDU hospital and also made a PCR call from his mobile. He was not cross examined.
21.W/ASI Sushila deposed as Duty officer on 25.08.2011, she received telephonic information through Ct. Harish that accused T.T. S/o Nikka Singh is apprehended from whose possession, a knife has recovered which was recorded against DD No. 28A which was already exhibited as Ex.PW2/A. She was not cross examined.
22.Ct. Daya Ram was examined as PW7. He jointed the investigation on 17.02.2011 and had seen the apprehension, arrest and interrogation of accused Mahender @ Minder. He exhibited the arrest memo as Ex.PW7/A. The disclosure SC No. 57734/2016 State vs. Mahender @ Minder etc. 16 of 50 17 statement was exhibited by this witness Ex.PW7/B and the pointing out memo by accused, was exhibited as Ex.PW7/C, which all were bearing his signatures.
23.Ct. Sunil Kumar was examined as PW8, on 15.07.2011, while being posted at Tilak Nagar, he went with SI Surender Kumar at KBlock, Shyam Nagar in front of BSES office(spot), on receipt of DD No. 5A in which while, DD No. 6A was received by SI Surender telephonically. Whereafter they both left for the DDU hospital where they met complainant. IO recorded the statement of complainant after him being declared fit by doctors and also obtained in sealed pullandas blood stained Banyan (vest) and sample seal from doctor which were seized as Ex.PW8/A. He took the Rukka prepared by IO to PS and came back to the spot with the copy of FIR and original Rukka and handed over the same to IO.
24.He joined the investigation in this case on 26.08.2011 with IO SI Surender Kumar, on which day, another accused TT was formally arrested against Ex.PW8/B. His disclosure was SC No. 57734/2016 State vs. Mahender @ Minder etc. 17 of 50 18 signed by this witness and was exhibited as Ex.PW8/C. Pointing out memo of spot by accused TT was exhibited as Ex.PW8/D.
25.HC Surender Singh was examined as PW9. On 16.08.2011, during his posting at PS Tilak Nagar, he participated in raid for arresting accused Mahender @ Minder alongwith HC Devender, HC Bijender, HC Jai Bhagwan, Ct. Vinod, Ct. Harish and Ct. Ranbir. The raiding team received secret information that accused Mahender @ Minder can be apprehended as he will come at a liquor shop situated at Khyala road, NBlock, Shyam Nagar. The raiding party made efforts for joining public persons, however, none agreed, whereafter, at about 9.15, the raiding party reached the spot and at about 9.30 saw accused Mahender @ Minder, reached at the liquor shop. He was overpowered in which process, accused Mahender @ Minder took out a surgical blade and assaulted Ct. Harish. Whereafter he was again overpowered. Ct. Harish was admitted at DDU hospital. ASI Pradeep Rathi, SC No. 57734/2016 State vs. Mahender @ Minder etc. 18 of 50 19 IO of FIR of assault on Ct. Harish reached at DDU hospital where the statement of Ct. Harish was recorded and his blood stained shirt was seized. Thereafter, IO ASI Pradeep Rathi alongwith Ct. Harish who was discharged from the hospital reached the spot (liquor shop) where accused Mahender was handed over to him. An FIR No. 265/2011 at the instance of Ct. Harish was registered in which case, accused Mahender was interrogated during which accused made a disclosure regarding his involvement in this case.
26.PW9 HC Surender Singh on receiving DD No. 28A on 25.08.2011, reached at DESU office, near Shyam Nagar Jhuggi where he found HC Jai Bhagwan and Ct. Harish where one person was handed over to him by HC Jai Bhagwan whose name was revealed as TT Singh. HC Jai Bhagwan also made over one push button knife which he stated to have been recovered from accused TT. There was bandage on forehead of accused at that time. The witness thereafter prepared the sketch of the knife and sealed the same in Pullanda with the SC No. 57734/2016 State vs. Mahender @ Minder etc. 19 of 50 20 seal of SS which was handed over to Ct. Harish after use. He carried out personal search of accused TT after his arrest. The disclosure statement made by accused was recorded wherein he disclosed about his involvement in the present FIR. At his instance, FIR No. 282/2011 u/s 25 Arms Act at PS Tilak Nagar was registered. He thereafter informed SI Surender Kumar, IO In this case about the arrest of the accused and after medical examination of accused TT, he was brought to PS Tilak Nagar and kept in lockup. During his examination, request was made for summoning of case file of FIR No. 265/2011 of PS Tilak Nagar. Whereafter his further examination in chief was deferred. During his further examination on 27.07.2017, the original record of case file of 265/11 and 282/2011 of PS Tilak Nagar was produced by PW17 Sh. Bhupesh Kumar and PW18 Sh. Amit Kumar Sehrawat. The witness stated that if produced before him, he can identify the case property. However, same could not be produced as the same had already been deposited with SC No. 57734/2016 State vs. Mahender @ Minder etc. 20 of 50 21 District Nazir.
27.In his cross examination, he admitted that no written direction from SHO for searching of accused was made. He did not call any local resident to join the investigation. The liquor shop was opened. No employee from the liquor shop was asked to join the investigation. He made no information at PS regarding constituting a raiding team and that he had not brought any record of departure entry. In his further cross examination on 24.03.2018, he stated that no secret information was transmitted to any senior official. The name and address of public person who refused to join the investigation were not noted down. He stated that no public person was standing at the liquor shop. The shopkeeper and employee of the shop were present. He further admitted that the liquor shop was surrounded by other shops. At this stage, he was given suggestion that the accused had been lifted from home or that no surgical blade in his possession and that he did not cause any injury to Ct. Harish. Other suggestion SC No. 57734/2016 State vs. Mahender @ Minder etc. 21 of 50 22 regarding apprehension of accused Mahender @ Minder were denied. In his further cross examination, qua the proceedings of 25.08.2011 of apprehension and arrest of accused TT, he admitted that no public person joined the proceedings. He stated that he left the PS at about 3.45 and got prepared the seal of 'SS' from market. He did not make any entry in Rojnamcha of the aforesaid proceedings. The suggestion that accused TT was falsely implicated and apprehended from his home were denied.
28.Ct. Harish deposed as PW10. He stated on 16.08.2011, during his posting at PS Tilak Nagar, he was part of raiding team with HC Devender, HC Vijender, HC Jai Bhagwan, HC Surender, Ct. Vinod and Ct. Ranbir who all were directed by the then SHO, PS Tilak Nagar to trace the suspect wanted in present FIR. They all left the PS and met secret informer near Shyam Nagar Jhuggi, Tilak Nagar, who informed about the possibility of apprehension of accused at liquor shop khyala road. Whereafter, under supervision of HC Saurender Singh, SC No. 57734/2016 State vs. Mahender @ Minder etc. 22 of 50 23 raiding party was formed which reached the liquor shop at 9.00 PM and at about 9.30 PM, accused Mahender @ Minder reached the shop where he was overpowered in which he assaulted witness Ct. Harish qua which occurrence FIR No. 265/2011 was recorded against accused Mahender @ Minder and his disclosure was obtained in which he revealed about his involvement in the present FIR.
29. This witness again participated in investigation on 25.08.2011 as he accompanied HC Jai Bhagwan and they both reached DESU office, Shyam Nagar, Jhuggi Tilak Nagar where they both found one boy coming from the side of DESU office and on seeing HC Jai Bhagwan and Ct. Harish, the said boy immediately took turn and started walking sharply. On suspicion he was chased and apprehended after a distance of 1520 steps. He was interrogated in which he revealed his name as TT Singh. During his personal search, one pushbutton knife was recovered and information of this occurrence were made over at PS Tilak Nagar by HC Jai SC No. 57734/2016 State vs. Mahender @ Minder etc. 23 of 50 24 Bhagwan. In which duration, HC Surender Singh from PS Tilak Nagar reached the spot to whom the accused TT Singh was handed over. On recovery of push button knife, case FIR No. 282/2011 u/s 25 Arms Act was registered against accused TT Singh. The accused made his disclosure statement and confessed his involvement in this case. His further examination in chief was deferred for want of original record of case FIR No. 265/2011 and 282/2011 which resumed again ton 09.01.2017 on which date, he further testified that on 11.07.2011, he received information while he was at PS Tilak Nagar that the mobile phone, wanted in this case could be found at N79, Raghubir Nagar, Delhi. Thereafter, he alongwith SI Surender Kumar and secret informer went to this address. SI Sreunder Kjumar knock the entrance of the house No. N798 which was opened and was responded by one lady and a boy. The by Akash @ Noni was enquired about the robbed mobile phone. However, no satisfactory reply was received. IO took his cursory search and mobile SC No. 57734/2016 State vs. Mahender @ Minder etc. 24 of 50 25 phone Micromax Q7 black colour was recovered from the left side pocket of the pant. On which the juvenile officer SI Devender was called from PS by SI Surender Kumar. The mobile phone was seized against seizure memo (photocopy) Mark X. The mobile phone was produced in a polythene which was shown to the witness. He identified the same. He also stated that he can identify the knife if the same is shown to him. However, same could not be produced as it was deposited with District Nazir. In his cross examination, he stated that though the departure entry was made he did not remember whether the purpose of leaving the PS was specifically entered therein. He admitted that the names of public persons were not recorded and no notice to the public persons refusing to join the investigation was served. He admitted that the liquor shop was open and some people were present. He further admitted that the owner of the liquor shop was not joined in the investigation. The suggestion that the injuries were self inflicted were denied. However, he admitted SC No. 57734/2016 State vs. Mahender @ Minder etc. 25 of 50 26 that he was not aware as whether his blood stained shirt was taken in possession by IO ASI Pradeep Rathi and was further handed over to the doctor concerned. The suggestion that accused Mahender @ Minder was falsely implicated was denied.
30.Qua his participation on 25.08.2011, he stated that he does not remember whether the DESU office was opened at that time, where from, accused TT Sing was nabbed. He further admitted that no public person from DESU officer was called to join the proceedings. The contrary suggestion that no recovery of knife from accused TT Singh was denied and it was further denied that the recovery was planted on accused.
31.Ct. Ranbir Singh was examined as PW11. He revealed that on 16.08.2011, he was part of raiding team with HC Surender, Ct. Harish, HC Jai Bhgwan, HC Vijender, HC Devender and Ct. Vinod who all reached at liquor Shop, NBlock where secret informer told them about the accused wanted in this case coming to liquor shop whereafter raiding party was SC No. 57734/2016 State vs. Mahender @ Minder etc. 26 of 50 27 constituted and at about 9.00 PM a person was seen coming who was apprehended by Ct. Harish at the instance of secret informer. The person apprehended, took out blade from his mouth and caused injuries on Ct. Harish. Whereafter, Ct. Harish was taken to hospital and they returned with ASI Pradeep Rathi. The FIR No. 265/2011 was made against the accused whose name was revealed as Mahender @ Minder. The witness could not identify the accused Mahender @ Minder and in his place identified accused Raja as accused Mahender @ Minder. Whereafter, he was cross examined by the Ld. Addl. PP and explained during cross examination that he could not identify the accused earlier as at the time of arrest accused Mahender @ Minder was clean shaven and was not carrying mustaches, beard and Pagri (Head Gear). In cross examination, he stated that the IO prepared a site plan about disclosing the position of the raiding team. He claimed that HC Surender had asked 45 persons to join the proceedings. However, none agreed. The IO made over no SC No. 57734/2016 State vs. Mahender @ Minder etc. 27 of 50 28 notice on such refusal. The suggestion that he was not part of the raiding team and not proceedings in his presence was conducted were denied.
32. Ct. Narender was examined as PW12. He accompanied ASI Pradeeep Rathi to the liquor shop N Block, Shyam Nagar with he DD NO. 70B where we met the police officials of raiding team and was told that the injured Harish was already removed to hospital. He accompanied the ASI Pradeep Rathi to hospital where the stament otef Ct. Harish was obtained. He witnessed the arrest of accused Mahnder @ Minder. His disclosure statement and also proved the proceedings through case file No. 265/2011. In his cross examination he admitted no person from the public was joined in the entire proceedings.
33.HC Jai Bhagwan was examined as PW13. He had participated in investigation with Ct. Harish on 25.08.2011 and had apprehended accused TT. He made the statement in sync with the statement of Ct. Harish examined as PW10. In SC No. 57734/2016 State vs. Mahender @ Minder etc. 28 of 50 29 his cross examination he admitted that no public persons was joined in the proceedings.
34.IO of this case retired SI Surender Kumar was examined as PW14. As per his narration, he went to the spot on the night of 1415.07.2011 after receiving DD No. 5A. The spot was detailed as near the office of BSES, Shyam Nagar, Tilak Nagar where the occurrence of robbery was informed to him vide aforesaid DD. When he reached the spot he found no one but was informed vide DD No. 6A that injured had been removed to DDU hospital. Where he reached and found injured Avdesh hospitalized and fit for statement on whose statement Ex.PW3/A, he made endorsement Ex.PW14/A bearing his signature at point A. After the aforesaid he reached the spot. However, no eye witness was found. In the meanwhile Ct. Sunil reached at the spot with copy of FIR and Rukka. Whereafter he again went to the hospital where the doctor gave him the sealed pullanda containing blood stained banyan of injured avdesh against seizure memo Ex.PW8/A. SC No. 57734/2016 State vs. Mahender @ Minder etc. 29 of 50 30 The shirt worn by injured was seized by him. He identified his signature on seizure memo of Ex.PW3/B. On discharge of complainant / victim on 19.07.2011, the site plan Ex.PW14/B was drawn by him.
35.He received secret information on 21.07.2011 about the house of receiver of robbed mobile phone whereafter he alongwith Ct. Harisah went to N Block Raghbubir Nagar and the phone was found from the search of a boy occupant of the aforesaid house whose name was revealed as Akash @ Noni who was disclosed to be a juvenile. Whereafter its proceedings was handed over under the provisions of JJ Act to Juvenile officer SI Devender Kumar.
36.He further revealed in his examination that the blood sample of Avdesh were collected and deposited in Malkhana against Ex.PW15/B. The arrest of accused Mahender @ Minder was made on 17.08.2011 by ASI Prsadeep in another case of PS Tilak Nagar during which proceedings, under disclosure statement he confessed his involvement in this case. Where SC No. 57734/2016 State vs. Mahender @ Minder etc. 30 of 50 31 after, the arrest of Mahender @ Minder was made in this case.
37.At the pointing of accused Mahender @ Minder, search for other accused namely TT and Raja @ Tidda was carried out.
38.The application of TIP of accused Mahender @ Minder was moved before the court which he exhibited Ex.PW14/A. He further stated that the PC of accused was received during which accused made another disclosure and led to his house fromwhere the Voter I Card of the complainant from the iron box was recovered.
39. He further stated about the arrest of TT on 26.08.2011 in another case of 25 Arms Act where accused TT made disclosure and thereafter, pointed out the place of occurrence. Application for his TIP was also made. The accused TT led to the house of other associate Raja @ Tidda. However, accused Raja @ Tidda was not found there.
40.The TIP of accused Mahender @ Minder and that of TT were fixed. However, both accused refused top join the TIP proceedings.
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41.He further revealed that on 11.01.2012, he alongwith Ct. Jagdish went to Subhash Nagar to apprehend another accused Raja @ Tidda where, from the public urinal, accused Raja @ Tidda was arrested at the instruction of secret informer who made disclosure statement Ex.PW14/C. He was arrested and his personal search was carried out. IO exhibited the arrest memo Ex.PW14/D and personal search Ex.PW14/E both bearing his signature at point A. he further stated that accused Raja @ Tidda pointed out to the place of occurrence at which pointing out memo Ex.PW14/F was made. During cursory search of Raja @ Tidda driving license of complainant was recovered from the right side pocket of his blue colour jeans which was seized against seizure memo Ex.PW14/G. He kept in muffled face and led to the house of coaccused. The TIP was refused by accused Raja @ Tidda and after preparing the chargesheet the same was filed. However, till then the FSL result could not be obtained, he revealed that during investigation he collected the CDR of mobile of complainant SC No. 57734/2016 State vs. Mahender @ Minder etc. 32 of 50 33 and CDR of mobile number found working in the mobile phone of complainant was placed and marked as Mark B. The site plan of recovery of voter I Card was exhibited by him as Ex.PW14/H. He stated to have prepared the pointing out memo at the instance of Mahender @ Minder and TT.
42.During his cross examination, he admitted that all the three accused had refused the TIP on the ground that they had been shown in the police station. He revealed that complainant did not provided any purchase bill of his robbed mobile phone which was stated to have been given as a gift to the complainant. He admitted that he did not record the statement of the lady relative at the time of recovery of mobile from accused Akash @ Noni.
43.In his further cross examination, he admitted that when he went to the house of accused Mahender @ Minder one lady and one gents was present. However, they were not joined in investigation/proceedings of recovery of voter I card. In his further cross examination he denied that the accused person SC No. 57734/2016 State vs. Mahender @ Minder etc. 33 of 50 34 did not make any disclosure statement on his own and false disclosure were recorded. Apart from making document of arrest and other documents such as seizure memo and pointing out memo which all are prepared at the PS.
44.IO was put a specific question as whether the secret informer was an eye witness of the occurrence to which no clear reply was offered by IO to stated that the secret informer knew about the location of accused and was having knowledge of the incident. Regarding not joining any public persons, IO made the reply that none agreed to participate. The suggestion that no driving license was recovered from accused Raja @ Tidda was denied. IO admitted that no proceedings in writing were drawn to record that accused Raja @ Tidda was kept muffled face. Regarding the knife from the possession of accused TT not showing any blood stained. IO claimed that the same had already been cleared and due to this reason, sketch of knife did not reveal any blood stains marks. Though admittedly, the knife was not cleaned in his presence. The rest SC No. 57734/2016 State vs. Mahender @ Minder etc. 34 of 50 35 of the suggestions were denied by the IO.
45.Dr. Deep Shikha, SR DDU hospital was examined as PW15. She has examined victim Avdesh on 09.10.2011 vide Ex.PW15/A on which date, no external injuries were found on him. His blood sample were collected. She was not cross examined.
46.Israr Babu Alternate Nodal Officer, Vodafone Mobile Services Ltd. was examined as PW16 and stated that the mobile No. 8860049650 was allotted in name of Ajay Kumar S/o Sh. Krishna. He proved the CAF and exhibited the election I card collectively Ex.PW16/A. He had brought the CDR of this number from 15.07.2011 to 25.07.2011, which was computer generated record. No cross examination of this witness was made.
47.Bhupesh Kumar, Ahlmad was examined as PW17. He had brought the record of case FIR No. 265/2011 u/s 186/353/323/332 IPC and photocopies of accused Mahender @ Minder. During cross examination he admitted that none of SC No. 57734/2016 State vs. Mahender @ Minder etc. 35 of 50 36 the document was prepared in his presence.
48.Amit Kumar Sehrawat, JJA record Room was examined PW
18. He has brought the original record of case FIR NO. 282/2011 PS Tilak Nagar u/s 25 Arms Act containing photocopy of disclosure of accused TT. Besides site plan, seizure memo of buttondar knife, sketch of knife, arrest and personal search memo of accused TT, he exhibited the disclosure statement Ex.PW18/A. The FIR was exhibited as Ex.PW18B. The site plan Ex.PW18C and seizure memo of knife is Ex.PW18/D/. The sketch of knife was Ex.PW18/E, arrest and personal search memos Ex.PW18/F and Ex.PW18/G respectively. In cross examination he admitted that none of the proceedings were done in his presence.
49.HC Sudhir was examined as PW19. He produced the record of Register No. 19 and showed the entry at Sr. No. 5519 of pullanda of knife deposited by HC Surender Singh which was Ex.PW19/A. The said pullandas was sent to DDU hospital for opinion on 10.10.2011 against endorsement at Sr. No. SC No. 57734/2016 State vs. Mahender @ Minder etc. 36 of 50 37 5519 from portion A to A1. On 12.10.2011, the knife was sent to FSL through Ct. Rajbir vide RC No. 127/21/11 qua which the endorsement was made from portion B to B1. The FSL result received on 29.09.2012 was deposited in Malkhana against endorsement at portion C to C1. The knife was deposited with District Nazir against the order dated 13.11.2014 through RC No. 202/21/15 which photocopy was marked as Mark B. He admitted in cross examination that entries were not in his handwriting and the signature against entries in register No. 19 were not made.
50. Dr, Maninder Kaur Chhabra, Specialist Surgery DDU hospital was examined as PW20. She made her statement on behalf of Dr. Rajvansh Sood, SR Suregery, who had left the hospital. She identified his handwriting and signature since she had worked with Dr. Sood. She narrated that on 15.07.2011, patient Avdesh was referred from casualty to Dr. Rajvansh Sood for further management and was referred to Surgery Department with alleged history of assault. Dr. SC No. 57734/2016 State vs. Mahender @ Minder etc. 37 of 50 38 Rajvansh Sood examined the patient and made endorsement on MLC from portion A to A1 bearing his signature at point A. The MLC is Ex.PW20/A. The nature of injury was opined as dangerous as there was deep injury in pleural cavity causing pneumothorax on the right side of chest which required surgical intervention. She had brought the record. In her cross examination, nothing material could be revealed and the suggestion that she had not work with Dr. R V Sood was denied by her.
51. Sh. Hem Raj, Principal Magistrate, JJB2 was examined as PW21. He revealed that application for TIP was received on 26.08.2011 from Sh. Rajesh Malik the then ACMM and TIP of accused Mahender @ Minder and TT was fixed for 29.08.2011 against his order Ex.PW21/A and Ex.PW21/A1. On 29.08.2011, he went to Tihar Jail where both accused Mahender @ Minder and TT refused to participate in TIP proceedings. They were warned of an adverse inference which might be drawn against, despite which they persisted. SC No. 57734/2016 State vs. Mahender @ Minder etc. 38 of 50 39 Thereafter, the TIP proceedings with certificate were drawn. The TIP of accused Mahemder @ Minder is Ex.PW21/B and the certificate is Ex.PW21/C. The TIP of accused TT was exhibited as Ex.PW21/C1 and certificate in this regard is Ex.PW21/C2. An application Ex.PW21/D on 30.08.2011 was made by IO for supply of copy which was allowed against endorsement Ex.PW21/E. On 12.01.2012, the application for TIP of accused Raja was marked by Sh. Rajesh Malik, the then Ld. ACMM which was fixed for 16.01.2012 against endorsement Ex.PW21/F. Ld. MM visited Tihar Jail on 16.01.2012 where accused Raja @ Tidda refused to participate in proceedings. He was warned of adverse inference. The TIP proceedings were Ex.PW21/G bearing the signature of accused Raja @ Tidda at point A. the certificate of proceedings was exhibited as Ex.PW21/H. The IO moved an application for supply of copy on 20.01.2012. He was not cross examined.
52.Dr. B N Mishra, HOD, Department of Forensic Medicine, SC No. 57734/2016 State vs. Mahender @ Minder etc. 39 of 50 40 DDU Hospital was examined as PW22. He had received an application for subsequent opinion regarding nature of injury on MLC No. 14099/11 on 10.10.2011. IO also produced a Pullanda sealed with seal of SS containing weapon of offence., the pullanda was opened and one knife was taken out for examination. Whereafter on examining the MLC, and the weapon, it was opined that the injury No. 1 mentioned in MLC could have been inflicted by produced weapon of offence. After examination and opinion, weapon of offence was packed and resealed with the seal of DFMT, DDU H and handed over to IO. The witness exhibited his opinion/ report as ExPW22/A bearing his signature point A.
53. In his cross examination, he stated the injury mentioned at Sr. No. 1 on MLC Ex.PW20/A could be possible by any other similar knife.
54. After closure of the PE Ld. APP dropped PW SI Devender Kumar from array of witnesses vide statement dated 29.11.2014.
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55.The statement of accused Mahender @ Minder, TT and Raja @ Tidda were recorded on 03.05.20198. In their statement they denied the incriminating evidence put to them and claimed to have been falsely implicated at the instance of IO. The recoveries alleged from their possession, i.e. the voter I Card, driving license both belonging to victim Avdesh and mobile phone etc. were denied.
56.The matter was thereafter fixed for final arguments.
57.Ms. Chitra Mal, Ld. Amicus Curiae on behalf of accused persons vehemently argued that the prosecution failed to prove its case and all the accused deserves acquittal whereas Ld. APP Sh. Jitender Sharma has argued that prosecution has proved its case beyond reasonable doubts and there is sufficient mater in view of the statement of the witnesses presented by prosecution to hold accused guilty of offence charged.
58.I have heard the submissions and perused the record.
59.From the testimony made by all the witnesses, the prosecution SC No. 57734/2016 State vs. Mahender @ Minder etc. 41 of 50 42 has miserably failed to prove its case beyond reasonable doubt against all the accused person for the reasons below. IDENTITY OF ACCUSED PERSONS
60.The star witness of prosecution PW1 Avdesh Kumar who had suffered the occurrence on 15.07.2011, during his examination in chief did not identify any of the accused. He stated that since it was dark at the time of occurrence, he could not identify the accused persons who stopped him, stabbed him, and robbed him of his two mobile phones and purse. He was cross examined on the point of identity by Ld. APP but he refused the identification of accused person despite being led to the identity of each accused. He further stated that he had not made any statement to police (Ex.PW3/A) that he can identify the accused persons if they are shown to him. He claimed that while his statement Ex.PW3/A was recorded, he was in semiconscious state and the statement was not read over to him. He further denied that he went to PS on 30.08.2011 where he identified the accused SC No. 57734/2016 State vs. Mahender @ Minder etc. 42 of 50 43 persons as Mahender @ Minder and TT. He denied that accused Mahender @ Minder and TT were the same accused and further denied that he was not revealing their identities as he was won over by friends and relatives of accused persons. With this statement the prosecution failed to establish any link of thee accused persons with the occurrence and their involvement in the occurrence became doubtful. INCONSISTENCY IN THE STATEMENTS OF WITNESSES
61.In the present case, victim / complainant Avdesh Kumar refused his statement Ex.PW3/A being the correctly recorded version of his statement to the IO. In his examination, he claimed that he was in semi conscious state when his statement was recorded by IO who even did not read over the same to him. The veracity of the statement and its contents, thus became doubtful.
62. The correctness of the proceedings initiated on the statement Ex.PW3/A revealing about the occurrence became doubtful as the complainant doubted the veracity of the proceedings and SC No. 57734/2016 State vs. Mahender @ Minder etc. 43 of 50 44 denied that he ever participated in the investigation. He specifically admitted that after indicating the place of occurrence to the police, he never participated in any other investigation proceedings. Though he admitted that election I card and license shown to him were robbed from him, he stood firm on his assertion that he never participated in any of the proceedings leading to its recovery and release.
63.All the other witnesses were the officials police witnesses who were at different time has joined in investigation pertaining to the arrest of accused and their subsequent disclosure. However, the police proceedings also became doubtful as one of the member of raiding party, Ct. Ranbir Singh who was examined as PW11 was unable to detail the proceedings and even failed to identify the accused Mahender @ Minder and Raja @ Tidda. He brought out further lapses in the version of the statement made by the members of raiding team as it was disclosed by HC Surender Singh that the proceedings were initiated as the secret informer met at BSES SC No. 57734/2016 State vs. Mahender @ Minder etc. 44 of 50 45 Office, Shyam Nagar, Khyala, whereas Ct. Ranbir (PW11) did not make any such statement and contradicted the version of the other witness of raiding party stating that the secret information for the first time was received at the liquor Shop, N Block, Raghubir Nagar, Tilak Nagar where he met the IO. The entire proceedings regarding formation of raiding team comprising of HC Devender, HC Surender Singh, HC Jai Bhagwan, Ct. Harish, Ct. Vinod and Ct. Ranbir and their reaching the spot N Block, Liquor Shop, Raghuibir Nagar, thus, became doubtful. Even the presence of this witness being member of raiding team is doubtful in view of his failure to even identify the accused apprehended allegedly as collective effort of the raiding team.
64. Interestingly, the arrest of all the three accused, i.e. Mahender @ Minder, TT Singh and Raja @ Tidda is made at the instance of the secret informer. However, in response to a specific question as whether the secret informer had seen any of the accused and or had witnessed the occurrence himself SC No. 57734/2016 State vs. Mahender @ Minder etc. 45 of 50 46 was evasively concealed by IO PW14 retired SI Surender Kumar who made the statement only claiming that the secret informer was having the knowledge of occurrence. He admittedly made no effort to cull out information as to how the secret informer received the information of the incident and on what basis the identity / involvement of each accused was established. Thus, providing no link as how the accused came to be known to the IO of having committed the present offence.
65.Despite the presence of employees at liquor shop or other shops, no one was joined in investigation by the IO. In the testimony of police witnesses as well as IO, it is clearly mentioned that there were public persons present at the liquor shop and adjoining / nearby shops.
66.The only material left in this case to link the accused with the offence is their disclosure statements. There is again contradiction in mode and manner in which the disclosure have been obtained after the arrest of the accused persons. As SC No. 57734/2016 State vs. Mahender @ Minder etc. 46 of 50 47 per the statement made by Ct. Rajbir Singh, accused Mahender @ Minder were both in lockup when on 31.08.2011, they were taken out from the lockup and their interrogation was made at PS where their disclosure statements were recorded at 2.00 AM in the room of IO where no other witness or person was present at that time. Thus, belying the entire testimony pertaining to formation of raiding party leading to arrest of accused Mahender @ Minder on 16.08.2011 and his apprehension being made from the liquor shop, N Block, Raghubir Nagar and subsequent apprehension of accused TT Singh on 25.08.2011 from outside DESU office, near Shyam Nagar Jhuggi and the recovery of knife from his possession. Further, no link is established regarding the arrest of accused Raja @ Tidda who is arrested at the instance of other accused Mahender @ Minder and TT. There are further discrepancies in the investigation as no FSL report is brought and proved.
67.The opinion regarding the knife claimed to be seized from SC No. 57734/2016 State vs. Mahender @ Minder etc. 47 of 50 48 possession of accused TT to the nature of injuries inflicted upon victim Avdesh is inconclusive. The proceedings pertaining to FIR NO. 265/2011 and 282/2011 are also not duly proved as the JJA of the court is not competent to prove the investigation pertaining to Ex.PW18/A to Ex.PW18/G as he is neither the author of the proceedings nor has witnessed any such investigation.
RECOVERY
68.The recovery of voter I card, driving license and mobile phone are also not conclusively linked to the accused. It is improbable that accused persons would keep the driving license and voter I card days after occurrence hidden in their home which are of no utilization for them. There is no linkage that juvenile Akash @ Noni received the mobile phone running the SIM NO. 9990813273 from accused TT. From the CDR placed on record, no attempt is made to show that at any point of time, any call is made from the said phone by accused TT. Thus, his possession over the phone is not SC No. 57734/2016 State vs. Mahender @ Minder etc. 48 of 50 49 established.
69.Even the recovered phone running with the SIM No. 9990813273 was having different CAF and identity papers in the name of Ajay Kumar S/o Sh. Krishna. No efforts were made to link this SIM/CAF or phone whom IMEI number was also not proved to be that of victim Avdesh.
70.In view of the aforesaid discussions, I find that the entire investigation conducted by the IO establishes no linkage of accused having committed the offence for which they are charged. For the aforesaid, I find that the material placed on record is neither complete nor conclusive to record conviction against the accused. The accused deserves the benefit.
71. In view of the above discussions, accused persons namely Mahender @ Minder, T.T. and Raja @ Tidda are acquitted for the commission of the offence punishable under Section 392/394/397/411/201/34 IPC.
72.The bail bonds and surety bonds of the accused persons are extended for a period of 6 months in terms of Section 437A SC No. 57734/2016 State vs. Mahender @ Minder etc. 49 of 50 50 of the Cr. P. C.
73.File be consigned to record room after completion of the necessary formalities.
Announced in the open court today i.e. 09th May, 2019 (NIRJA BHATIA) ASJ03, WEST/DELHI SC No. 57734/2016 State vs. Mahender @ Minder etc. 50 of 50