Delhi District Court
1 State vs Omvir Etc. on 8 August, 2007
1 State vs Omvir etc.
IN THE COURT OF SHRI S. P. GARG: ADDITIONAL SESSIONS
JUDGE: NEW DELHI
1. Sessions Case No: 580/96
State Vs. 1. Omveer Singh s/o Khacheru
R/o 307, Jud Bagh, KM Pur
New Delhi (A--1)
(Since dead)
2. Ashok Kumar s/o Babu Lal
R/o 799, Gautam Puri, New Delhi (A--2)
3. Rajiv Paul s/o B D Paul
R/o 208A/6A Savitri Nagar
New Delhi (A--3)
4. Babu Ram s/o lakhi Singh
R/o Dadupur, Gautambudh Nagar
Noida (A--4)
5. Babu Lal s/o Sheetal
R/o M-605, Sewa Nagar.
New Delhi. (A----5)
(Since dead)
6. Arvind Kumar s/o Keshu Singh
R/o H No. F 304/305, Old Seema Puri,
Delhi (A--6)
2 State vs Omvir etc.
7. Rattan Lal s/o Bishambhar Dass
R/o F 267, Old Seema Puri
Delhi (A--7)
8. Girja Devi w/o Shiv Kumar
R/o F-304/305 Seema Puri,
New Delhi (A---8)
9. Omesh Sharma s/o Sita Ram
R/o RC/9, Sarojini Nagar,
New Delhi. (A---9)
(Since PO)
FIR NO : 38/82
PS : Lodhi Colony
U/ S : 395/397 IPC
2. Sessions Case No : 183/91
State Vs. Omveer Singh s/o Khacheru
R/o 307, Jud Bagh, KM Pur
New Delhi (A--1)
(Since dead)
FIR NO : 326/82
PS : Defence Colony
U/ S : 25/54/59 Arms Act
3. Sessions Case No : 19/83
State Vs. Babu Ram s/o lakhi Singh
R/o Dadupur, Gautambudh Nagar
Noida (A--4)
3 State vs Omvir etc.
FIR NO : 327/82
PS : Defence Colony
U/ S : 25/54/59 Arms Act
JUDGMENT
All the above three cases are being disposed off by this common judgment as they are interconnected. All these oldest cases pending before this court are being disposed off together.
2. Accused Omvir (A-1) (since dead), accused Ashok Kumar (A-2), accused Rajiv Lakhanpal (A-3), accused Babu Ram (A-4) along with one accused Omesh (since PO) and accused Baljinder (turned approver) were challaned by the police of PS Lodhi Colony vide FIR NO:38/82 for the commission of offences punishable U/S 395 IPC r/w section 379 IPC. Accused Babu Lal (A-5) (since dead), accused Arvind Kumar (A-6), accused Ratan Lal (A-7) and accused Girija Devi (A-8) were challaned for the commission of the offences punishable U/S 414 IPC. In nut shell, the case of the prosecution case in FIR No. 38/82 is as under:-
3. Present case was registered by the police of PS Lodhi Colony on 9.3.82 on the statement of Rameshwar Dyal sharma. In his complaint, complainant Rameshwar Dyal Sharma disclosed to the police that on 9.3.82 he was working as Assistant Post Master at Head Post Office, Lodhi colony. On that day Sohan Lal, Head Cashier ; Shambhu Nath and Lallan Prasad, 4 State vs Omvir etc. cashier were also present on their work. When they were checking the accounts, at about 8.45 PM, 7/8 intruders entered inside the treasury of the Post Office threatening to kill. They had brought Ram Pal Singh and Jai Prkash, Packers there by catching them by their necks. One of the intruders having 'Sawala complexion' was armed with a long and naked sword. Three intruders were having open long knives. One intruder was having an iron pistol. Another person was having one egg like object (hathgola). The complainant further disclosed that Ram Pal and Jai Prakash were made to sit in one corner of the treasury. The intruders demanded keys of the cash chest. He further disclosed that the intruders took the keys hanging there and opened the cash chest. They took out cash and filled it in a bag. They were threatened with the swords, knives, pistol and 'Hathgola'. After committing robbery at the Post Office, the intruders went away from the rear side of the Post Office. When the intruders were leaving the Post Office, Madan Lal, Head Post Master came there. The intruders fled away after bolting the door of the Post Office from outside.
4. The complainant further disclosed that thereafter efforts were made to make telephone call to the police. On checking, it was found that the intruders had in all committed robbery of a sum of Rs. 12,30,121.82. The 5 State vs Omvir etc. details of the currency notes robbed by the intruders were also disclosed in the complaint. The complainant also gave description of the intruders in the complaint. It was also revealed that cash of Rs.460912.95 remained lying at the Post Office and could not be robbed. It was also revealed that Rampal Singh had sustained minor injury on his back when knife was placed at him.
5. During investigation, the police reached at the spot and prepared site plan. Necessary proceedings were conducted at the spot. Statements of the concerned witnesses were recorded. Efforts were made to trace the offenders.
6. Further case of the prosecution is that on 6.6.82 Insp. S. D. Sharma was posted as SHO PS Defence Colony. On that day, he along with his police staff was on patrolling duty. At about 9 PM, he received a secret information regarding activities of A-1. Raiding party was organized. At about 9.30 PM to 10 PM, two persons came on a motorcycle bearing No. DEB 9692 make 'Yezdi' from Ring Road and at the pointing out of the secret informer, the motor cycle was got stopped. The motor cycle was being driven by A -1 and A-4 was sitting as pillion rider. On search of A- 1, one buttandar knife was recovered from his possession. IO conducted necessary proceedings and got a case U/ S 25 of the Arms Act vide FIR 6 State vs Omvir etc. NO. 326/82 was registered. On search of A-4, one knife was recovered for which a case under the Arms Act vide FIR NO. 327/82 was got registered against him. Both the accused A-1 and A-4 were interrogated. On personal search of A-1 Rs. 8753/- were recovered from the left side pocket of his pant. Currency notes recovered from the possession of A-1 were bearing the seal of Lodhi Road Post Office dated 9.3.82. One 'Titan' watch, automatic, golden colour was also recovered from the possession of A-1. A-1 failed to explain the ownership of the motorcycle and 'Titan' watch. SHO S. D. Sharma seized the motor cycle and 'Titan' watch U/ S 102 CrPC. Both A-1 and A-4 were interrogated and they disclosed their involvement in this case FIR No. 38/82 PS Lodhi Colony. Insp. S. D. Sharma informed the police of PS Lodhi Colony.
7. On 7.6.82 Insp. Sita Ram was working as SHO at PS Lodhi Colony. On that day at about 12.05 mid night, Duty Officer informed him regarding apprehension of both accused A-1 and A-4 by the police of PS Defence Colony in cases under Arms Act. Insp. Sita Ram collected disclosure statements of both the accused persons. He interrogated both accused A-1 and A-4 at PS Defence Colony. Thereafter both A-1 and A-4 were arrested in this case and their personal searches were conducted.
8. Further case of the prosecution is that as per his disclosure statement, A-1 7 State vs Omvir etc. led the police party to H. No. MPT, Sewa Nagar, Kotla Mubarakpur and pointed out the house of A-2. IO prepared necessary pointing out memo. A-2 was arrested from his house and was interrogated. On search of the house of A-2 Rs.79,950/- were recovered along with one chain, one ring and new cloth pieces, stitched and unstitched, one tape recorder and one cassette. A-2 disclosed that all these articles had been purchased by him with the robbed money. IO seized all these articles and prepared necessary seizure memos. The currency notes were also put in a pulanda and sealed with the seal of MS. Some of the currency notes recovered from the house of A-2 were bearing the seal of Lodhi Road Post Office with date 9.3.82 along with initials. A-2 was arrested and his personal search was conducted.
9. Further case of the prosecution is that thereafter A-1 took the police party along with other accused to H. No. MPT 449, Sarojini Nagar house of accused Baljinder Singh (since approver). IO prepared the pointing out memo. Accused Baljinder Singh was arrested. He was interrogated. Accused Baljinder Singh handed over Rs.20,050/- to the IO who seized the same vide seizure memo. Accused Baljinder Singh was arrested and his personal search was conducted.
10.Further case of the prosecution is that thereafter accused Baljinder (now 8 State vs Omvir etc. PW 1) took the police party to H. No. MPT 303, Sarojini Nagar i.e the house of A-3. IO prepared pointing out memo. A-3 was apprehended and was interrogated. A-3 voluntarily produced a sum of Rs.8750/- consisting of different denomination. IO seized the same after preparing its sealed pulanda. A-3 was arrested and his personal search was conducted. The bundles of cash of Rs.10/- and Rs. 5/- recovered from A-3 were also having the seals of Lodhi Road Post Office and initials on it.
11.Thereafter the police party along with accused persons returned at the PS. A-2 and A-3 were directed to keep their faces muffled. The accused persons were produced before the Ld. MM. From there they were sent to JC as TIP proceedings were to be got conducted. IO moved application for TIP of the accused persons which was fixed for 9.6.82.
12.Further case of the prosecution is that on 8.6.82, IO Insp. Sita Raam received secret information that A-5 (since deceased), father of A-2 would pass through Sewa Nagar, Railway Crossing with part of the robbed money. He along with his staff apprehended A-5 and Rs 2,00,450/- were recovered from him along with nine items of gold and silver ornaments. A-5 was interrogated and his disclosure statement was recorded. IO seized the cash and ornaments and prepared necessary seizure memos. Again the currency notes recovered from the possession 9 State vs Omvir etc. of A-5 were having seals of Lodhi Road Post Office with initials. A-5 was arrested and his personal search was conducted. He was produced before the court and from there he was sent to JC.
13.On 9.6.82 TIP was conducted in Tihar Jail. On the same day, IO Insp. Sita Ram moved an application for PC remand of A-1, A-2, A-3, A-4 and accused Baljinder (since approver).
14.Accused Baljinder Singh was interrogated on 12.6.82 and his disclosure statement was recorded. A-1 and A-2 were also interrogated and their disclosure statements were recorded.
15.On 17.6.82, as per disclosure statement of A-2, he pointed out the house of A-8 but the house was found locked.
16.On 19.6.82, IO along with staff reached at the house of A-8. She was apprehended and interrogated. IO recorded the statement of A-8. On search of the house of A-8, Rs.150000/- were recovered from her house along with twenty other items of stitched and unstitched cloth material purchased by her with the robbed money. The currency notes and the jewellery articles were sealed in a pulanda and necessary seizure memos were prepared. The currency notes recovered from the house of A-8 were in the shape of bundles and were bearing seal and initials of Lodhi Road Post Office.
10 State vs Omvir etc.
17.Further case of the prosecution is that on the pointing out of A-8, A-6 and A-7 were apprehended. They were interrogated and their personal searches were conducted. A-6 got recovered Rs.9,200/-. Most of the currency notes were in the shape of bundles bearing the seal of Lodi Road Post Office. The currency notes were seized after preparing its sealed pulanda.
18.A-7 got recovered Rs.9000/- which were bearing the seal of Lodhi Road Post Office. Again all these articles were seized in a sealed pulanda.
19.During further investigation, the IO seized the books of the Post Office Lodhi Road vide seizure memo. He also seized the copies of daily cash register from Post Office Defence Colony. TIP of the currency notes were got conducted. Sh. S. M. Chopra, the then Ld. MM conducted the TIP pertaining of the case property.
20.During investigation, the case property was sent to CFSL and IO subsequently collected CFSL report. IO got transferred the money recovered from A-1 and A-2 lying in Defence Colony Malkhana to the Malkhana of PS Lodhi Colony.
21.During further investigation accused Baljinder Singh was made approver. Sh. J. M. Malik the then Ld. ACMM granted pardon to accused Baljinder Singh and he was made an approver in this case.
11 State vs Omvir etc.
22.During investigation the IO recorded the statements of concerned witnesses at different stages of investigation and after completion of the investigation filed challan against all the accused persons for the commission of the offences punishable U/S 395 IPC read with Section 397/411/412 IPC in the court of ld. MM.
23.After completion of investigation case FIR No. 326/82 U/s 25 Arms Act against A-1 was filed in the court of ld MM. Similarly after completion of investigation case vide FIR No.327/82 against A-4 U/s 25 Arms Act was filed. Since both these cases were connected with the main case, the ld MM committed both these cases to the court of sessions.
24.Accused Omesh could not be arrested during investigation. Challan against him was filed as PO. Cases vide FIR No : 326/82 and 327/82 were also filed U/s 25 Arms Act against A-1 and A-4 in the court of Ld. MM. Both these cases were also committed to the court of sessions as they were connected with main case FIR No : 38/82.
25.After complying with the provisions of Section 207/208 CrPC, the Ld. MM committed the case to the court of sessions.
26.After hearing the ld. Addl. PP for the State and Ld. Defence Counsels for the accused persons, charge U/S 395 IPC was ordered to be framed by my ld Predecessor against A-1 to A-4 in case FIR No : 38/82 PS Lodhi 12 State vs Omvir etc. Colony. Separate charge U/s 412 IPC were ordered to be framed against A-5 to A-8. All the accused persons pleaded not guilty to the charges and claimed trial.
27.Separate charge U/s 25 Arms Act was ordered to be framed against A-1 in case FIR No : 326/82 PS Defence Colony by my ld Predecessor vide order dt 12.8.83 . Accused pleaded not guilty to the charge and claimed trial.
28.Separate charge U/s 25 Arms Act was ordered to be framed against A-4 in case FIR No : 327/82 PS Defence Colony by my ld Predecessor vide order dt 31.7.82. Accused pleaded not guilty to the charge and claimed trial.
29.To bring home its case, prosecution examined PW 1 Baljinder Singh, PW 2 Rameshwar Dyal Sharma, PW 3 SI Shyam Dass, PW 4 ASI Harpal Singh, PW 5 HC Kamal Dev, PW 6 SI Shish Ram, PW 7 Ct. Ramesh Chand, PW 8 HC Sukhpal Singh, PW 9 Ct Subedar, PW 10 Lacchi Singh, PW 11 Samuel, PW 12 R K Syed, PW 13 Ramesh Gaur, PW 14 Lallan Prasad, PW 15 Madan Lal, PW 16 Sohan Lal, PW 17 Ram Pal Singh, PW 18 Jai Prakash Sharma, PW 18A Sh. S M Chopra, PW 19 Gurmukh Singh, PW 19A Sh. M L Sahni, PW 20 Hargovind, PW 21 Daulat Ram, PW 22 Yashpal Gupta, PW 22A Shambhu Nath, PW 23 Baldev Kishen, PW 24 13 State vs Omvir etc. Surender Singh, PW 25 S K Nanda, PW 26 Ved Pal, PW 27 Sh. J M Malik, PW 28 SI Chetan Dass, PW 29 Joginder Ahlawat, PW 30 Insp. Daya Nand, PW 31 Insp. Narender Pal Singh, PW 32 ACP S D Sharma and PW 33 Insp. Sita Ram Mangai.
30.The prosecution failed to complete its evidence despite various opportunities granted. Hence, vide order dated 19.4.01, the Ld. Predecessor closed further evidence of the prosecution.
31.Statements of accused persons were recorded U/S 313 CrPC. The accused persons denied their involvement in the commission of the offences. Their plea is that they have been falsely implicated in this case.
32.Plea of A-2 is that he had a quarrel with secret informer of police namely Bandar in Sewa Nagar who threatened to get him implicated in some case. On the day of his marriage, he was lifted by the police and got implicated in this case. His father moved an application in this regard to the police. Nothing was recovered from him or at his instance. The clothes, tape recorder, one ring and chain etc were gifted to him by his in-laws before marriage at the time of 'Tilak'.
33.Plea of A-3 is that he is innocent. He was known to approver Baljinder. So he was falsely roped in this case. He was called to the PS. When he was taken to PS, his father was called and was asked by the police to 14 State vs Omvir etc. return Rs.8750/- which were spent by approver Baljinder on him. On this, his father gave them this amount after bringing it from the house. But later on he came to know that this amount has been planted on him by affixing seals of Lodhi Road Post Office and by getting date put on its through Post Office officials. Nothing was recovered from him or at his instance.
34.Plea of A-4 is that he has been falsely implicated in this case.
35.Plea of the accused A-6 is that he is innocent. Nothing was recovered from him. He has been falsely involved in this case.
36.Plea of accused A-7 is that he is innocent and has been falsely implicated in this case.
37.Plea of A-8 is that she is innocent and has been falsely implicated in this case. She had come to attend marriage of her brother Ashok Kumar (A-
2). Her children were with her and she was carrying clothes of her children and her jewellery for attending the marriage. She was picked up by police from Sewa Nagar and falsely involved in this case. Police took her chain, ring, two tabij, key ring and clothes belonging to her and her children.
38.Accused persons examined DW 1 Balli, DW 2 Ram Chand and DW 3 Gian Singh in their defence evidence.
15 State vs Omvir etc.
39.I have heard ld. Addl. PP for the State and Ld. Defence Counsels for the accused persons and have gone through the file.
40.At the outset it may be mentioned here that A-1 has already expired. Accused Omesh is already PO. A-5 has also expired during the pendency of the trial. Accused Baljinder Singh (PW 1) was made approver.
41.Contention of the ld. Addl PP for the State is that the prosecution has established its case against all the accused persons beyond the shadow of reasonable doubt. PW 1 Baljinder Singh, the approver in this case has fully connected all the accused persons with the commission of the offence. The currency notes robbed from the Post Office were recovered from the possession of the accused persons. A-5 to A-8 have failed to explain the possession of the robbed currency notes. There is nothing to disbelieve positive testimony of the prosecution witnesses.
42.On the other hand, contention of ld. defence counsels of the accused persons is that the prosecution has failed to prove its case against any of the accused person beyond the shadow of reasonable doubt. There are material contradictions, discrepancies and improvements in the testimonies of the prosecution witnesses which make it unsafe to convict the accused persons. The testimony of PW 1 Baljinder Singh as an 16 State vs Omvir etc. approver is very weak piece of evidence to connect the accused persons with the commission of offence. Material prosecution witnesses have turned hostile and failed to identify the accused persons before the court. The description of the intruders was not given by the complainant in his complaint to the police. No weapon of offence was recovered from the possession of any of the accused persons. The prosecution witnesses have deposed falsely at the instance of police. They have made vital improvements in their deposition before the court for which they have been confronted with the their statements recorded U/S 161 CrPC. The accused persons were not identified in TIP proceedings. There are contrary versions given by the prosecution witnesses regarding the number of persons who had entered inside the Post Office. PW 1 Baljinder Singh was made approver in this case under pressure. A-4 got his statement recorded U/ S 164 CrPC implicating him. To save himself from the implication of the statement made by A-4 U/S 164 CrPC, accused Baljinder Singh offered to become approver. Earlier before becoming an approver, approver Baljinder Ssingh and his moved the Ld. MM alleging torture at the hands of police to him in the jail.
43.It is further argued that nothing was recovered from the possession of the accused persons. The currency notes allegedly recovered from the 17 State vs Omvir etc. possession of the accused persons were not having any seal of Lodhi Road Post Office. The seals were affixed subsequently by the police to create evidence against the accused persons. The accused persons arrested in this case were shown by the police to the prosecution witnesses at the post office. Accused Omesh has not been arrested in this case and nothing has come on record to show if any person with the name of Omesh ever existed.
44.I have considered the arguments of the Ld. Addl PP for the State and Ld. Counsels for the accused persons and have gone through the file.
45.Case of the prosecution is being discussed as under:-
A INCIDENT OF ROBBERY/DACOITY The incident whereby robbery/dacoity was committed at Post Office Jor Bagh, Lodhi Road, New Delhi on 9.3.82. has not been controverted as such by the ld. Defence Counsel for the accused persons. Their only plea is that the accused persons were not involved in the said incident.
II. Prosecution has examined number of witnesses to prove commission of robbery/dacoity at Post Office, Jor Bagh on 9.3.82. Material testimony on this aspect is that of PW 2 Rameshwar Dyal Sharma. In his testimony before the court, PW 2 disclosed that on 9.3.82 at about 8.45 PM he , 18 State vs Omvir etc. Head Cashier Sohan Lal, Treasurer Shambhu Nath and Lallan Prasad Treasurer were present in the Treasury. On mail receiving gate, one packer and mail clerk were also present. The gate of the Treasury was half ajar at that time. Dacoits accompanied by mail clerk and packer came inside the Treasury. The dacoits were armed with daggers and knives. One of them was having a round 'object'. There were five dacoits in all. The dacoits pushed the mail clerk, packer Jai Prakash and Lallan Prasad, head cashier under the table. Three other persons were also pushed under the table. The dacoit who was having sword in his hand and was standing over his head, commanded him to hand over keys. The dacoits saw the key hanging in the key hole of the cash chest and took the key from there. There was a spare blue bag lying in the treasury. It contained stamps. One of the dacoits picked up the blue bag and filled the cash from the first cash chest in that bag in which the key was handing in the key hole. One of the dacoits with the help of those keys, opened the second cash chest. Rs.6,27,000/- were there in the blue bag in the second cash chest. This blue bag , containing the said amount was put in the blue bag containing stamps. Four sealed bags of different post offices, which were lying near the cash chest, were also put in the bigger blue bag which contained stamps. These sealed bags pertained to post 19 State vs Omvir etc. offices Lajpat Nagar, Kalkaji, Defence Colony and Jangpura. There were cheques and cash in those four sealed bags. At first he had assessed that there were five dacoits but later on when he turned aside, there were two persons standing near the safe and he concluded that they were also companions of the first batch of five. Mail Clerk Rampal Singh sustained minor injury on his back. One dacoit who was having a 'churra' put the same inside the bag. Two dacoits carried away the bag containing 'churra' and cash etc. The dacoits after committing dacoity went away threatening them not to disclose the incident. The witness further stated that the total amount taken away by the robbers was Rs.12,30,121.82. III.This witness was cross-examined at length by the ld. defence counsel. However, the testimony of this witness regarding the incident to have taken place at the Post Office has remained unchallenged. IV.This witness has no ulterior motive to falsely fake the incident of dacoity at the Post Office.
V. PW 3 SI Shyam Dass in his testimony before the court also supported the version of this witness and stated that on 9.3.82 he was posted at PCR and was on duty from 8 PM to 8AM. At 9.03 PM, he received an information from R. K. Syed, Post Master General regarding this incident. DD NO. 131 which is Ex. PW 3/A was recorded in this connection.
20 State vs Omvir etc. VI.This witness was not cross-examined by the ld. defence counsel for the accused persons. So the testimony of this witness has also remained unchallenged. This witness had also no motive to falsely record DD entry regarding the incident in question. This DD entry was recorded soon after the occurrence.
VII.PW 8 HC Sukhpal Singh working as Duty Officer also talked about the incident and stated that on 9.3.82 at about 11.35 PM on receipt of ruqqa through Ct. Kaka Ram, he recorded formal FIR Ex. PW 8/A. He had also recorded information at serial No. 14 of register 'A' on 9.3.82, the copy of which is Ex. PW 8/B, at about 9.07 PM on receipt of information from PCR regarding the incident. Contents of the FIR have not been controverted in the cross-examination.
VIII.PW 12 R. K. Syed working as Post Master General on 9.3.82 in his deposition before the court stated that on 9.3.82 at about 9 PM, he received telephonic message at his residence from Post Master, Lodhi Road, Post Office and was informed that a dacoity had taken place at the Post Office and the dacoits had taken away cash. After receiving this message, he informed the police at number 100 regarding the information. Testimony of this witness also talks about the commission of incident at the Post Office.
21 State vs Omvir etc. IX.PW 14 Lallan Prasad has supported the prosecution and has corroborated the version of PW 2 Rameshwar Dyal Sharma regarding the incident. He has also stated that dacoity took place at the Post Office. The dacoits were 5/6 persons and they had taken him towards treasury by pushing him. The dacoits brought him inside the treasury. The dacoits were armed with weapons. The dacoits committed robbery at the Post Office. X. PW 15 Madan Lal working as Chief Post Master at Lodhi Road Post Office also stated that on 9.3.82 at about 8.45 PM,he was sitting in his office room in Lodhi Road, Post Office. Ajaypal Singh, chowkidar of Post Office came to him and told him that the cash and accounts were ready and he was called by Assistant Post Master, R. D. Sharma and Head Cashier Sohan Lal. When he reached near the treasury, he found some persons armed with sword, churras, pistols carrying a blue bag belonging to the Post Office. The person having a pistol with him kept it on his temple and threatened him not to speak. All the five persons thereafter ran away with the bag outside the Post Office. Thereafter PW 2 Rameshwar Dyal Sharma came out of the treasury. He informed him that the dacoits had looted the currency notes. He immediately ran to his office to rang up the police. He tried to contract the police on telephone no. 100 repeatedly. Thereafter he rang up the local police and his officers. He also sent driver 22 State vs Omvir etc. of the van to go and bring the police immediately. Police reached at the Post Office within minutes. This witness further stated that on checking they found that total amount looted was about Rs. 12 lacs 13 thousand and odd.
XI.Similarly PW 16 Sohan Lal, PW 17 Rampal Singh and PW 18 Jai Prakash Sharma all have narrated as to how and under what circumstances, dacoity took place at the Post Office on 9.3.82 at about 8.45 PM. XII.The testimony of all these prosecution witnesses coupled with the testimony of the police witnesses whereby the present case was registered and subsequently investigation was carried out and number of accused persons were arrested and challaned, show that incident of dacoity had taken place at Post Office, Lodhi road whereby dacoits committed dacoity to the tune of cash Rs.12,30,121.82.
XIII.PW 1 Baljinder Singh who turned approver has also supported the prosecution on material facts and has categorically stated commission of dacoity at the said Post Office by him along with his associates. XIV.There is nothing to disbelieve the testimony of all these prosecution witnesses. All these prosecution witnesses were not going to be benefited to fake the incident of robbery/dacoity at the Post office. The subsequent recoveries of the looted amount also substantiate the plea of the 23 State vs Omvir etc. prosecution witnesses regarding commission of dacoity at the Post Office. So I am of this view that the prosecution has established that dacoity took place on 9.3.82 at about 8.45 pm at Post office Lodhi Road where the dacoits fled away with cash, cheques, stamps etc. to the tune of Rs. 12,30,121.82/-.
B. TESTIMONY OF APPROVER
Main reliance of the prosecution to connect the accused persons
with the commission of the offence is on the testimony of PW 1 Baljinder Singh who turned approver subsequently.
II. It is not disputed that PW 1 Baljinder Singh was given pardon by Sh. J.M Malik, the then Ld. ACMM. PW 1 was made approver by the police;. He has appeared as a witness and has deposed that accused Omesh (since PO ) was known to him. A-3 was his neighbour and was residing in H. No. LPT 303, Sarojini Nagar, New Delhi. He and A-3 had gone to see posters at Kamal cinema. When they were returning, accused Omesh (since PO ) met them near Raj Nagar bus stop. A-1 and A-2 were with accused Omesh at that time. Omesh introduced A-1 and A-2 to him and A-3. Thereafter, they became on visiting terms with each other. A-4 was also known to him. He was residing near the house of A-1. III.PW 1 Baljinder Singh further deposed that about 20 or 25 days prior to 24 State vs Omvir etc. 9.3.82, A-2 saw cashier counting the cash at the counter of Lodhi Road, Jor Bagh post office where he had gone to send a telegram. A-2 told about that to A-1 and they both told that fact to Omesh. A-1, A-2 and Omesh went to Jor Bagh Post Office and made a plan to rob the Post Office. Thereafter they all talked with him and A-3. IV.Further deposition of PW 1 Baljinder Singh is that A-1, A-2 and Omesh asked him and A-3 to meet them at Raj Nagar bus stand on 8.3.82. They reached there at 6:00 P.M. There they found A-1, A-2 and Omesh present. Then they all made preparation and Omesh told them that there would be no hitch in looting the Post Office.
V. The witness further stated that on the very day, A-1, A-2 and Omesh asked him and A-3 to meet them again at Raj Nagar bus stand on 9.3.82 at about 6:00 P.M. Again he and A-3 reached at Raj Nagar bus stand at about 6:00 PM on 9.3.82. They found Omesh and A-2 present there. From there they all took a bus and reached at South Extension. Omesh asked him, A-2 and A-3 to go to the house of A-1 and he was going to bring some other vehicle. Thereafter he along with A-2 and A-3 reached at the house of A-1 where they found a motorcycle make Yezdi parked outside his house. Its number was DHT 4481. Omesh then came there with another motorcycle bearing No. DEX2890. Omesh parked the 25 State vs Omvir etc. motorcycle outside the house. Thereafter they four i.e he himself, A-2, A- 3 and Omesh went inside the house of A-1. A-1 and A-4 were already present in the house and they inquired from them as to why they were late. It was about 7 P.M. Thereafter A-1 bolted the door of the room from inside and Omesh told them that he would give them arms on reaching at Post Office Jor Bagh.
VI.Further deposition of the witness is that thereafter they all six came out. He was to drive the motorcycle bearing No. DHT4481. A-3 and A-4 sat behind him as pillion riders. Second motorcycle was driven by Omesh. A- 1 and A-2 sat behind him as pillion riders. They all stopped near Dyal Singh College at the petrol pump. There, Omesh got his petrol tank of the motorcycle filled. Then they all reached behind the back of the Post Office in Jor Bagh. They parked their motorcycles near the Post Office. Thereafter Omesh handed over one knife and one hand grenade to A-2. He handed over one knife to A-1. Omesh kept two hand grenades in his pocket. He was also armed with a pistol and sword. He handed over to him one grass cutter (iron strip). A-2 gave one danda to A-3 and one danda to A-4.
VII.The witness further narrated the incident that thereafter they all six jumped over the wall and went inside from a place where the barbed 26 State vs Omvir etc. wires affixed on the wall were already cut. Omesh knocked at the door of the Post Office. One person opened the door and came out. Omesh inquired from his as to how many persons were there inside the Post Office. The said person told Omesh that there were 5/6 persons inside the Post Office. Then taking that man, they all entered the door of the Post Office. They found a man sitting there. They took that man also with them. The said man sitting inside the post office was taken under threat as A-1 put a knife on his back. On the back door, A-3 and A-4 were left. The remaining four i.e PW1, A-1, A-2 and Omesh took those persons inside the cash cabin of the Post Office and got them seated in the corner of the cash cabin. Then they all abused the remaining persons hurling filthy abuses. Omesh and A-1 threatened to shot dead those persons that if they tried to be clever. Those five persons were forced to sit under the tables. Thereafter A-1 demanded keys of the cash cabin. An elderly man sitting on the chair asked that the man with the keys had gone out. Just then, A-4 came in with a man whom he had secured. That man was also made to stand in a corner. Just then, A-1 noticed that the keys of the cash cabin were hanging with the safe. A-1 opened the cash safe and A-2 picked up a blue coloured bag and opened the bag. A-1 took out the cash from the safe and put it in the bag. 3 or 4 27 State vs Omvir etc. leather sealed bags were lying outside the safe. Feeling those to be heavy, those were also put in the bag which had been picked up by A-2. Then A-2 put his knife in the bag. During that period, he along with Omesh kept those other persons at bay by brandishing their arms. Then Omesh handed over his sword to A-1. A-2 dragged that blue coloured bag towards the exit side on the back. He and A-1 followed him. They all came out of the cash cabin and Omesh bolted the door of the cash cabin from outside. From the cash cabin, they came out to the back entrance of the Post Office from where they had entered it. When they came out, A-2 handed over his hand grenade to A-4 and stated ''Bhag chalo''. Then they all the six persons jumped over the wall and came near the motorcycles. When they all reached near the motorcycles, Omesh took back the arms from all of them which he had given to them. Then he started driving the same motorcycle on which he had come there. A-3 and A-4 sat behind him as pillions. The other motorcycle was driven by Omesh while A-2 with the money bag and A-1 sat on his back. When they started, the hand bomb fell from the hands of A-4 and there was a loud explosion. After going to some distance, he and Omesh stopped their motorcycles. Omesh took out both hand bombs from his pocket and handed over them to A-3 and asked them to reach at the park 28 State vs Omvir etc. near Laxmi Bai Nagar bus stop and they would reach there. From there Omesh, A-1 and A-2 went to the house of A-1 while they remaining three went to the park. When they reached Laxmi Bai Nagar, the hand bomb slipped from the hands of A-3 causing an explosion. He became afraid. A-3 threw the other bomb which was in his hand in a ''nala''. Then they left motorcycle at the back of Laxmi Bai Nagar bus stop. They went to the park and waited for their associates to reach there but they did not come. Thereafter they left A-4 in the park and he along with A-3 came out of the park and started searching for them but could not find them. Then he alone went inside the park and brought A-4 with him. He gave Rs.5/- to A-4 and asked him to go to his house and that he would consider the matter when they meet Omesh etc. VIII.Further plea of the witness is that thereafter he and A-3 engaged a three wheeler scooter and came to their houses. Then on the very night at about 11 PM, A-3 came to his house and told him that Omesh, A-1 and A-2 had come to his house and had fixed a meeting at the house of A-1 on the next morning at about 7AM. On the next morning, he along with A-3 reached at the house of A-1. A-2 and Omesh were also present there. He was handed over a briefcase containing Rs.46,000/- and he was asked to pay Rs.14,000/- as share of A-3 reaching his house. Omesh also told 29 State vs Omvir etc. them that remaining amount about himself and A-3 would be settled later on. Then he and A-3 came to his house where A-3 took Rs.14,000/- from him as his share.
IX.Further plea of the witness is that on that very day, he, A-3 and one Atul, friend of A-3 hired a private car for going to Chandigarh from Ashoka Hotel. The number of the car was DEA513. The driver booked a girl whose name was Baby for them from G.B. Road. Thereafter they all with that girl reached at Chandigarh in that car. At Chandigarh, they stayed at Maharaja Guest House till morning of 11.3.82. At the guest house, he disclosed his name as Arun Kumar and that of lady as Mrs. Arun Kumar with family. On the morning of 11.3.82 at about 10 AM, they got sent that girl to Delhi in a bus. After about 1 ½ or 2 hours, A-3 and Atul also took a bus for Delhi. Thereafter he along with the driver of that car came to Delhi by that car after roaming for some time at Chandigarh.
X. Further deposition of the witness is that thereafter he had been meeting with Omesh, A-1 and A-3 in Delhi. A-1 and A-2 told him that they had taken Rs.3 lacs each of their share from Omesh. Thereafter he demanded his share from Omesh. Omesh told him that they would start a factory in partnership and he would keep him as a partner. When Omesh told him 30 State vs Omvir etc. that fact, he gave him Rs.3,000/-.
XI.Further case of the witness is that on 7.6.82, A-1 and A-4 came to his house along with the police at 5 or 5.15 A.M. He was interrogated by the police at his house. He handed over Rs.20,000/- to the police which were concealed by him in his books and which were remaining amount of his share with him. That amount consisted of two bundles of Rs.100/- each on which there were slips with seal of Jor Bagh Post Office. Then he along with police reached at the house of A-3. A-3 was found standing in the gallery of the house. A-3 was interrogated by the police. On interrogation, A-3 also took out Rs.8750/- and handed over to the police. On that bundle also, there was a slip on which there was seal of Jor Bagh Post Office with date 9.3.82 affixed. The police converted the money into a sealed parcel and seized the same.
XII.This witness further stated that he was produced before Sh. J.M. Malik, the then Ld. ACMM who recorded his statement Ex. PW1/A. He accepted the pardon Ex. PW1/B. XIII.The witness identified the currency notes and slips Ex. P1 to P15 recovered from his possession as well as from the possession of A-3 to be the same which were seized in this case and which were part of the money robbed from Post Office Lodhi Road.
31 State vs Omvir etc. XIV.This witness was cross examined at length by the Ld. counsels for the accused persons. In the cross examination on behalf of A-3, the witness stated that he was in service at ITDC for about 1 ½ years. In June, 1982, he did not attend to his duties at all. The witness denied the suggestion that he was arrested by the police in 1.6.82. The witness denied the suggestion that A-3 was taking yearly test in March 1982 and did not meet him at all. The witness further denied the suggestion that he did not hand over any money to A-3. The witness denied the suggestion that the amount alleged to have been given by A-3 to the police belonged to his father and he had noted down the numbers of seven notes of Rs.50/- which were included in Ex. P5.
XV.The witness further stated in his cross examination that A-3 was never his class mate. Rather they were school mates and A-3 was junior to him by one or two classes. The witness denied the suggestion that A-3 was never friendly with him. The witness further denied the suggestion that his brother helped the police for making him approver. XVI.On behalf of A-1 again this witness was tested at length. In the cross examination, the witness stated that at the time of incident, he was getting about Rs.800/- per month as salary. Sometimes A-1, A-2 and Omesh used to accompany (A-3) at the time of his(A-3) visits to 32 State vs Omvir etc. Hyderabad House. Once or twice, A-1 and A-3 visited him during his duty hours from 10 AM to 5 PM. He had never any talk with A-1 etc about this dacoity at Hyderabad House. The witness, however, asserted that they had gone to Kamal cinema to see cinema posters in January 1982. When they were coming back from there, then for the first time, A- 1 etc met them. A-1 sometimes used to demand money from him. He had given him Rs.10/- or Rs.15/- sometimes. Sometimes he used to see cinema show with A-3. A-1 used to say that he was employed with ESI Dispensary. He visited A-1 at his house 10 or 15 times in all. The witness denied the suggestion that A-1 was never known to him and had never any connection with him.
XVII.The witness deposed that he met A-4 for the first time when he went at the house of A-1. He met A-4 in the month of January 1982 for the first time. A-4 never visited him at Hyderabad House. House of A-3 was at a distance of 2-3 houses from his house. He had relations with family of A-3 also.
XVIII.The witness further clarified that when the police came in the morning, his elder brothers were not present in the house but his father was present in the house. On that day, he was kept at PS Lodhi Road and was produced before the court where his PC remand for 9 or 10 33 State vs Omvir etc. days was given. For the flirt time, when he was produced before the ld. M.M, he did not give any application to the Ld. MM that he wanted to confess. During police custody, he used to be interrogated daily by the police for 1 ½ or 2 hours. He was first remanded to custody for 14 days. He did not recollect the date when he gave confessional statement to the Ld. M.M. However, it was in the month of June, 1982. From Tihar Jail, he had written to the Ld. MM that he wanted to give confessional statement. He was summoned and was given time to think over before recording his statement. The police officials of PS Lodhi Road did not meet him on that day. First he was produced before the Ld. MM at about 11 AM. Thereafter he was produced after lunch . Sh. S.K. Aggarwal, Adv was looking after his interests in the court. On the day, his statement was recorded by the Ld. MM, he never met Sh. S.K. Aggarwal, Advocate. The witness denied the suggestion that the police had detained his eldest brother to pressurize him to give statement as desired by the police. He denied the suggestion that on 7.6.82 he made an application before the court that the police had tortured him. The witness further denied the suggestion if he had made any application mark 'B' dated 10.6.82 to the court. The witness, however, admitted that under directions of the court, he was got medically examined at AIIMS. The witness expressed his 34 State vs Omvir etc. ignorance that police used fraud etc to coerce and prompt A-4 to make a statement as desired by them and they would get a pardon for him. XIX.The witness further stated that he did not visit Jor Bagh Post Office before 9.3.82 along with Omesh, A-1 or A-2. House of A-1 was in the village abadi and there were number of house adjacent to his house. A-1 and Omesh had told him that the arms would be arranged by them but they had not told the details of the arms. While going to commit dacoity, they all had proceeded from the room of A-1. The firm arms were kept in the bag and two 'dandas' and one sword were kept wrapped in paper. The witness denied the suggestion that he had not gone at the house of A-1 and had not seen the arms.
XX.The witness further stated that both the motorcycles were parked at a distance of 50/60 yards from the Post Office and they were parked by the side of public park. It was dark there and arms were distributed there When the arms were distributed, the bag was with Omesh. They remained at the place of parking of motorcycles for about 15-20 minutes. XXI.The witness further stated that the person who had opened the door at the Post Office had come to identify them in the jail at the time of identification parade. The second man had also come in the jail for test identification parade. There were 2-3 tables in the cash cabin. The 35 State vs Omvir etc. dimensions of the cash cabin was about 12 x 12 ft.
XXII.The witness further stated that when A-4 had brought the Post Office man inside, at that time, he was holding a 'danda'. While escaping from the scene of occurrence, A-4 was having 'danda' and a bomb given by A-
2. A-2 had given the bomb to A-4 while he was still inside the Post Office.
XXIII.Further plea of the witness in cross examination is that A-3 was present when he was instructed to hand over Rs.14,000/- to him. Amount of Rs.14,000/- given by him to A-3 consisted of some 100/- rupees notes, some 10/- rupees notes, some 5/- rupees notes and some other notes as well. He kept remaining amount of Rs. 32,000/- in the briefcase with him at his house. The witness volunteered to add that the briefcase was, however, taken away from him by Omesh, A-1 and A-2. They took away the briefcase after 4/5 days. He kept the amount of Rs.32,000/- in the books after the briefcase was taken away by Omesh etc. The police officials recovered Rs. 20,050/- from his books later on. This was the amount left out of Rs.32,000/-. Writing work was conducted regarding recovery of RS.20,050/-. The witness denied the suggestion that he did not hand over Rs.14,000/- to A-3.
XXIV. This witness fairly admitted that A-3 did not enter from the rear door 36 State vs Omvir etc. of the Post Office. The witness explained that it was due to the reason that the elderly man whom they found sitting in the Post Office was neighborer of A-3 and as such he had stated that he would not enter the Post Office lest he might be recognized. The witness denied the suggestion that there were 6/7 dacoits who had entered the Post Office from where the cash was looted. This witness further stated that they were not having muffled face when they entered the cash cabin. They did not make any effort to cover their faces inside the cash cabin or at any time while they remained at the Post Office. The witness denied the suggestion that he made tutored statement before the court. XXV.In the cross examination on behalf of A-2, the witness denied the suggestion that A-2 was not present at the spot.
XXVI.In the cross examination conducted on behalf of A-4, the witness was confronted on some facts with the statements recorded before the police and U/S 164 Cr.P.C i.e Ex. PW1/DA, Ex.PW1/DB and Ex.PW1/A. The witness denied the suggestion that marriage of A-2 was fixed for 5.6.82. He further denied the suggestion that he was apprehended by the police along with A-1, A-2 and A-3 on 1.6.82 and for that reason, the marriage party of A-2 could not proceed to Nagpur. The witness denied the suggestion that all five of them were remanded to police custody on 37 State vs Omvir etc. 10.6.82. The witness denied the suggestion that on 13.6.82, the police took them to Post office building in Jor Bagh and showed them to the Post Office employees. The witness denied the suggestion that A-4 had never met him prior to the incident or that he did not participate in the dacoity. The witness further denied the suggestion that no person with the name of Omesh ever existed or that his name was given at the instance of the police.
XXVII.Overall testimony of this witness reveals that this witness fully implicated himself along with Omesh (since PO), A-1, A-2, A-3 and A-4 to have committed dacoity at the Post Office on 9.3.82. This witness gave graphic details as to how the planning to commit dacoity at the Post Office was made prior to 9.3.82. The witness further detailed the account as to how the planning to commit dacoity was executed and how the looted amount was subsequently shared along them. The witness attributed specific role to each of the accused in the commission of the dacoity.
XXVIII.No material discrepancies or contradictions have been elicited in the lengthy cross examination of this witness to disbelieve the version given by him before the court. This witness has stood test of cross examination and no major discrepancies or contradictions have come in his cross 38 State vs Omvir etc. examination to infer that he has falsely implicated the accused persons in the commission of the offence. No motive has been imputed to this witness in the cross examination for falsely implicating A-1 to A-4 along with one Omesh in the commission of the serious offence. Nothing has come on record to show if all these accused persons were having any enmity or ill-will against this witness to rope them in the commission of the dacoity. This witness has categorically asserted his association prior to the incident with A-3. He has also narrated as to how he came into contact with other co-accused persons prior to the commission of the offence. In the absence of any ulterior motive, this witness is not expected to let innocent persons falsely implicated in this case simply because he was granted pardon U/s 306 Cr.P.C.
XXIX.It has come on record that even A-4 had opted to become approver in this case. PW 19 Sh. M.L. Sahni, Ld. M.M in his deposition before the court has stated that on 15.6.82 he had received a letter from Suptd. Central Jail along with an application of A-4 whereby he had requested to record his statement concerning the offence for which he was kept in Tihar Jail. The letter is Ex. PW19/A and the application of A-4 is Ex. PW19/B. A-4 was produced in his court on 17.6.82 and after recording his observation on Ex. PW19/D. PW-19 Sh. M.L. Sahni, Ld. M.M 39 State vs Omvir etc. recorded his statement Ex. PW19/E. The same was also signed by A-4. He also appended his certificate as required u/S 164 Cr.P.C which is Ex. PW19/F. XXX.This witness PW 19 Sh. M L Sahni was not cross examined by the Ld. counsels for the accused persons. So the testimony of this witness regarding recording of the statement of A-4 U/S 164 Cr.P.C has remained unchallenged and unrebutted.
XXXI.A-4 did not deny that he did not move application Ex. PX before the Ld. MM on 15.6.82. I have gone through the application Ex. PX received by the court on 17.6.82. This application during testimony of PW19 was exhibited as Ex. PW19/B. This application is in the handwriting of A-4. In this application, A-4 categorically stated that he was aware about the facts regarding the dacoity committed at Post Office Jor Bagh. A-4 requested the ld. MM to record his statement.
XXXII.It has further come on record that PW 19 Sh. M.L. Sahni, the then Ld. MM recorded the statement of A-4 which is Ex. PW19/D. A-4 himself gave detailed account as to how and under what circumstances, the dacoity was committed at the Post office on 9.3.82. In his statement ExPW19/E recorded U/s 164 CrPC A-4 stated that A-1 was relation of his widowed sister Bhagwati where he used to reside. Omvir (since PO), A-2, 40 State vs Omvir etc. A-3 and PW 1 Baljinder used to visit the house of A-1. This witness also stated that Omesh, A-1, A-2, A-3 and PW 1 Baljinder had gone on motorcycle make Yezdi. They were armed with various weapons. While giving detail of the incident of dacoity, he had attributed specific role to himself as well as to his associates. He also specifically deposed that the cash lying in the Post Office was put in a bag and robbed. He also stated that on the next day of the incident, A-1 met him at his residence and handed over to him a wad of currency notes of Rs. 10/- denomination which were in all Rs. 850/-. Thereafter A-1 left along with one lady Kamlesh to Nepal. A-4 further narrated the circumstances how he along with A-2 were arrested when they were present on motorcycle and how one knife each was recovered from their possession. He also stated how recovery of Rs. 8753/- was effected from the possession of A-1 and Rs. 512/- from his possession.
XXXIII.In this statement ExPW19/E recorded on 17.6.82 A-4 confessed his guilt and intended to seek pardon. He further stated that he made that statement before the ld. MM without any fear or coercion. XXXIV.This statement of A-4 fully corroborates the version given by PW 1 Baljinder Singh in his testimony before the court. Material facts proved on record by PW 1 Baljinder have been admitted by A-4 in his statement 41 State vs Omvir etc. recorded U/s 164 CrPC before the Ld. MM. A-4 did not retract his confession and at no stage during trial showed that this statement was made by him under fear or pressure. The contents of the statement made by A-4 in his statement /s 164 CrPC lends credence to the facts proved on record by PW 1 Baljinder who turned approver in this case and makes his testimony reliable.
XXXV.PW 15 Madan Lal in his deposition before the court also identified PW 1 Baljinder Singh to be among the dacoits who had committed dacoity at the time of incident. There is nothing to disbelieve the positive testimony of PW 15 Madan Lal regarding identification of PW 1 Baljinder Singh to be one of the dacoits. Identification of PW 1 Baljinder Singh makes the version given by him more reliable.
C. IDENTIFICATION OF A-1 and A-4 Besides the above said testimony of approver, PW1 Baljinder Singh, testimony of PW2 Rameshwar Dayal Sharma corroborates his version regarding involvement of A-1 and A-4 in the commission of the offence. II. PW2 Rameshwar Dayal Sharma was posted in Lodhi Road (Jor Bagh) Post office for the last about six years. In his testimony before the court he asserted his presence at the spot at the time of incident. He further gave graphic detail as to how and under what circumstances, dacoits 42 State vs Omvir etc. numbering seven happened to enter inside the Post office and how they were armed with different weapons and how they committed dacoity of cash amounting to Rs. 12 lacs in all. The witness detailed description of the entire incident showing his presence at the spot at that time. In his deposition before the court, this witness further revealed that one of the dacoits was having a naked sword with him. Two dacoits were having knives/daggers. One of them was having a pistol and the other was having a round object. He had seen the dacoits at the spot. The witness pointed out towards A-1 and A-4 and asserted that the two were among those five dacoits who had committed dacoity at the Post office. This witness further proved his statement Ex PW2/A lodged by him with the police soon after the incident.
III.In the cross examination on identification of A-1 and A-4, the witness stated that those dacoits entered the Post office. He had told the police in his statement that the dacoits were 7/8 in number. Only one or two dacoits had wrapped mufflers on their heads. The witness denied the suggestion of the ld counsel for A-1 that all the dacoits were in muffled faces. The witness volunteered to add that in his statement Ex PW2/A, he had told to the police regarding the colour of the dacoits, regarding their clothes and the fact that one of the dacoits was having thin hair on his 43 State vs Omvir etc. head. This witness further stated that he had told the police in his statement Ex PW2/A that muffler of one of the dacoit was little bit displaced around the back and hence he had seen that he was having bald head (baal ude hue). This witness fairly admitted that he had gone to Tihar Jail in connection with identification of the dacoits. During identification proceedings, he could not identify any dacoit, who were put for test identification. This witness further stated that in his presence police had not brought any dacoit in the Post office but he had come to know that the police had brought the dacoits under arrest to the Post office. The witness denied the suggestion that A-1 was brought to the Post office and was shown to him by the police there. The witness denied the suggestion that he identified A-1 and A-4 in the court as he was so directed to help the prosecution. The witness further denied the suggestion that he was not present at the time of incident and had not seen the occurrence.
IV.Overall testimony of this witness reveals that this witness categorically identified A-1 and A-4 to be the persons before the court who were among the dacoits at the time of commission of dacoity. No material discrepancies or contradictions have been elicited in the cross examination of this witness to disbelieve him. This witness has no 44 State vs Omvir etc. personal interest to falsely identify A-1 and A-4 to be among the dacoits. This witness was not known to A-1 and A-4 prior to the occurrence and was having no ill will or ulterior motive to let the real culprits go scot free and to falsely rope in these accused persons. Present FIR was registered on the statement Ex PW2/A made by this witness soon after the occurrence. The incident took place on 9.3.82 at about 8.45 pm. Rukka was sent on the same night at about 11.30 pm. So there was least possibility of concoction by this independent public witness who was performing his duty in the Post office. In the complaint Ex PW2/A, this witness gave description of the assailants/dacoits and categorically asserted to identify them if produced before him. Since the dacoits had remained present for sufficient time at the spot and this witness was confronted and threatened directly with deadly arm on his head, had an opportunity to see the dacoits.
V. A-1 has already expired. So identification of this witness qua A-1 has become redundant and is not being discussed at length. VI.In the cross examination on behalf of A-4, identification by this witness was not challenged. Only suggestion was put on behalf of A-4 that the statement of this witness was tutored one. No suggestion was put to this witness in the cross examination that A-4 was not present at the spot at 45 State vs Omvir etc. the time of incident or that PW2 Rameshwar Dayal Sharma was not present at the spot at the time of occurrence and had no occasion to see A-4 there. No suggestion was put to this witness if A-4 was present on that day at any other specific place. So testimony of this witness regarding identification of A-4 has remained uncontroverted and unchallenged in the cross examination.
VII.PW15 Madan Lal has corroborated the version given by PW2 Rameshwar Dayal Sharma and has supported the prosecution qua involvement of A-1,A-4 and PW1 Baljinder Singh who turned approver subsequently in the incident.
VIII.In his deposition before the court also this witness gave graphic details regarding the incident and stated that when he reached near the treasury, he found some persons who were armed with sword, churras and pistols. Two out of them were carrying blue colour bag belonging to the Post office. They used filthy language and threatened him. The person who was having a pistol with him kept it on his temple and threatened him not to speak. All the five persons thereafter ran away with the bag outside the Post office.
IX.This witness in his deposition before the court pointed out towards A-1, A-4 and PW1 Baljinder Singh (who turned approver subsequently) and 46 State vs Omvir etc. stated that these were the persons among those five persons. This witness gave sequence of the events that happened subsequent to that. This witness was also tested in the cross examination on this circumstance of identification. In the cross examination the witness stated that he had sent written report to the senior officers regarding this dacoity. This report was sent by him either on 11.3.82 or 12.3.82 as 10.3.82 was Holiday. Senior officers had come in the Post Office on the night in which the dacoity had taken place. The report sent by him is Ex. PW15/DA. The Police had examined finger prints on the locks, handles etc of the treasury but he could not say if finger prints were lifted. In the further cross examination, the witness stated that the dacoits were not in muffled faces. They were having mufflers etc around their necks. The witness further stated that he had given description of dacoits in his statement given to the police. He fairly admitted that he had not mentioned in his report Ex. PW15/DA, the details of the clothes of the dacoits. This witness explained that he had not considered it necessary to mention it in this report. This witness answered in affirmation to the question of the Ld. counsel for A-4 that in his statement he had given description of the dacoits to be in the age group of 30 years wearing shirts, pants and sweaters of different colours and one of them was of 47 State vs Omvir etc. wheatish complexion. This witness admitted that Police had brought some dacoits in the Post Office. However, he clarified that the dacoits were brought after the identification proceedings. He had gone in connection with the identification to Tihar Jail after about three months from the dacoity. When the dacoity was committed, he had seen the dacoits but they had hurriedly gone away. The witness denied the suggestion that just after the recovery of the money, he was called by the police in the PS and there the culprits were shown to him or that A-4 was specifically shown to him in the PS. This witness further asserted that the dacoits were having mufflers etc around their necks but they were not wearing mufflers. The witness denied the suggestion that he identified A- 4 in the court at the instance of the Police.
X. Entire testimony of this witness shows that this witness also identified A-1, A-4 and PW 1 Baljinder Singh to be among the dacoits who had committed robbery at the spot. Presence of this witness being working as Post Master is quite natural and probable at the time of occurrence. This witness has given detailed description of the incident showing his presence at the spot. No suggestion was put to this witness in the cross examination that this witness was not expected to remain present at the spot at the time of incident. Other prosecution witnesses examined by the 48 State vs Omvir etc. prosecution have also asserted presence of PW 15 Madan Lal at the spot at the time of occurrence. There is nothing to disbelieve the positive testimony of the prosecution witnesses in this regard. PW15 Madan Lal, a Government servant is not imagined to fake his presence at the spot to involve him in this serious offence.
XI.No motive has been imputed to this witness also to falsely or wrongly identify A-1, A-4 and PW 1 Baljinder Singh to be the persons among the dacoits at the time of occurrence. Again all these accused persons were not known to this witness prior to the occurrence and were having no ill- will against him prompting him to falsely identify them before the court. Even during test identification proceedings, this witness had identified one dacoit in TIP conducted at Tihar Jail. This witness categorically asserted that he had the opportunity to see the faces of the dacoits when they were going out after committing the dacoity with the robbed amount. This witness was threatened by one of the dacoits having pistol in his possession. So this witness had sufficient opportunity to see the assailants and no fault can be found regarding his identification of A-1, A-4 and PW 1 Baljinder Singh to be present at the spot. PW1 Baljinder Singh who turned approver in this case and appeared as prosecution witness as PW 1 categorically stated his presence along with these 49 State vs Omvir etc. accused persons A-1 and A-4 at the time of occurrence. Identification of PW 1 Baljinder Singh by this witness further lends credence to his story as his identification supports the version given by PW 1 Baljinder Singh regarding his being a member of the team of the dacoits. XII.Lengthy cross examination has been conducted on behalf of A-1 who has since expired. So no detailed discussion is being made regarding his presence at the spot. So far as A-4 is concerned, again this witness was not confronted in the cross examination regarding his identification. Simple suggestion was put to this witness in the cross examination that the witness gave false statement because he was employee of the Postal Department. In my view this suggestion has no bearing and PW 15 Madan Lal being a responsible Government servant is not expected to falsely implicate any innocent person. This witness fairly did not identify other dacoits. Had this witness been giving a false statement, being an employee of Postal Department, he must have identified the other dacoits also in his testimony before the court. There is nothing to disbelieve the positive testimony of this witness regarding involvement of A-1, A-4 and PW 1 Baljinder Singh showing their involvement in the commission of the offence.
D. RECOVERY FROM PW 1 BALJINDER SINGH (ACCUSED BEFORE 50 State vs Omvir etc. TURNING APPROVER) Case of the prosecution is that PW1 Baljinder Singh, as associate of the accused persons in the commission of the dacoity was apprehended at the pointing out of A-1 and A-4 and subsequently on search, Rs. 20,050/- were recovered from him. This cash was part of the looted amount. II. In his testimony before the court, PW33 ACP Sita Ram deposed that A-1 and A-4 after their apprehension in this case led the police party to H.No. MPT 449,Sarojini Nagar. The said house was that of PW1 Baljinder Singh. Pointing out memo Ex PW33/H was prepared. PW1 Baljinder Singh was apprehended and he was interrogated. PW1 Baljinder Singh handed over Rs 20,050/- to him which he seized vide seizure memo Ex PW1/C. PW1 Baljinder Singh was arrested and his personal search was conducted vide personal search memo Ex PW33/I. III. In the cross examination, arrest of PW1 Baljinder Singh at the instance of A-1 and A-4 was not controverted. Again there is no worthwhile cross examination if Rs 20,050/- part of the looted amount were not handed over by PW1 Baljinder Singh to the IO who seized the same vide seizure memo Ex PW1/C. IV.PW1 Baljinder Singh in his testimony before the court also supported the prosecution on this aspect and testified that on 7.6.82 A-1 and A-4 came 51 State vs Omvir etc. to his house with the police at 5 or 5.15 am. He was interrogated at his house by the police. On that interrogation, he handed over Rs.20,050/- to the police which he had concealed with him in his books and which were the remaining amount of his share lying with him. This amount consisted of two bundles of Rs. 100/- each and there was a slip with the seal of Lodhi Road Post office. PW1 Baljinder Singh identified the notes Ex P1 to P3 recovered from his possession. The witness also identified the paper slip of Lodhi Road Post office with date 9.3.82 on the bundles of the currency notes. The witness further stated that Rs 20,050/- were handed over by him to the police. That was the same amount which was looted from Post office Lodhi Road and was given to him as his share. V. In the cross examination, the witness explained that he was given Rs, 46,000/- in all and out of that he had given Rs. 14,000/- to A-3. He had kept the remaining amount of Rs. 32,000/- at his house. The amount was kept by him in the books and the police officials recovered Rs. 20,050/- from his books later on. No suggestion was put to this witness in the cross examination that he had not handed over Rs. 20,050/- to the police or that the same was not part of the looted amount. The testimony of the witness regarding his apprehension at the instance of A-1 and A-4 was also not controverted in the cross examination.
52 State vs Omvir etc. VI.This witness turned approver. He is not expected to hand over from his own pocket of Rs 20,050/- to the police. In his statement before Sh. J M Malik, the then ld ACMM also while seeking pardon, the witness fully stated about his association with the accused persons in the commission of the dacoity and recovery of Rs 20,050/- from him. VII.Apprehension of PW1 Baljinder Singh on 7.6.82 at the instance of A-1 and A-4 and subsequent recovery of the part of the looted amount from his possession points an accusing finger against A-1 and A-4 as prior to that the factum of involvement of PW1 Baljinder Singh was not in the knowledge of the police. The factum was discovered only in the disclosure statement of A-1 and A-4 when they led the police party to his house and pointing out memo was prepared.
VIII.PW2 Rameshwar Dayal Sharma identified bundle Ex P12 consisting of 100 notes bearing seal of his Post office and the date 9.3.82. He further stated that This slip Ex P13 was signed by Lallan Parsad Cashier/treasurer. He further stated that all the bundles of currency notes seen by him before the court belonged to their Post office and were looted on the day of occurrence by the dacoits.
IX.PW14 Lallan Parsad also identified his handwriting and signatures on the bundles and the slip Ex P12 and P13.
53 State vs Omvir etc. X. Recovery of Rs. 20050/- from the possession of PW 1 lends credence to the facts deposed by him before the court and is a factor to consider him a reliable witness.
E. RECOVERY FROM THE POSSESSION OF A-2 To connect A-2 in the commission of the offence, prosecution has relied upon the recovery of part currency notes looted from the Post office from his possession. A-2 has denied the recovery of cash, clothes and golden articles seized in this case. Plea of A-2 in the statement recorded U/S 313 Cr. P.C. is that on the day of his marriage, he was lifted and falsely implicated in this case. Clothes, tape recorder, one ring and one chain etc. were gifted to him by his in-laws before marriage at the time of 'tilak'. II. Material testimony on this circumstance is that of PW-33 ACP Sita Ram.
In his statement before the court, PW-33 deposed that A-2 was arrested on 7.6.82. In pursuance of disclosure statement made by A-1 (Omvir) he took the police party to H.No. M-603, Sewa Nagar, Kotla Mubarakpur and pointed out the house of A-2 and pointing out memo Ex.PW33/E was prepared. A-2 was apprehended from his house and was interrogated. Search of his house was conducted and Rs.79,950/- were recovered from his house along with one chain, one ring, one tape recorder, one cassette, new cloth pieces, stitched and unstitched and other new clothes. A-2 54 State vs Omvir etc. disclosed that all these articles had been purchased by him out of the robbed money. All these articles were seized vide seizure memo Ex.PW33/F. The witness further stated that out of Rs.79,950/-, three bundles of Rs.100/- notes were found bearing the seals of Lodhi Road Post Office dated 9.3.82 as initials. Similarly four bundles of currency notes of Rs.100/- each were also having slip and stamp of Post office of Defence Colony. Currency notes Ex.P-26, P-27 and P-28 were bearing the seal of Defence Colony Post Office. Another three bundles Ex.P-23, P-24 and P-25 were having the seals of Lodhi Road Post Office. The other currency notes recovered at the house of A-2 were collectively Ex.PW28/1. Ex.P-114 to Ex.P-131 were the articles seized from the house of A-2.
III.This witness was cross examined by the Ld. Defence Counsel on this aspect. In the cross examination, the witness stated that he was assigned with the investigation of this case on 7.6.82 and before that the investigation was with Crime Branch, Delhi. The witness further stated that they had reached at the house of A-2 at about 4.00 a.m. It was early morning hours and no public person was joined in the investigation. They remained at the house of A-2 for about 1 or 1 ¼ hours. Memos were prepared at the residence of A-2 regarding recovery of cash, clothes 55 State vs Omvir etc. and jewellery. These documents were prepared under his supervision by ASI Mahender Singh who has since expired. They left the house of A-2 approximately at about 5/5.15 am. The witness denied the suggestion that slips from the Post Office were got affixed on the currency notes subsequently. The witness further denied the suggestion that A-2 was lifted from his house on 1.6.82.
IV.Entire testimony of this witness reveals that no material discrepancies have been elicited in the cross examination to doubt the veracity of his statement. The investigation of this case had been assigned to this witness only on 7.6.82, so there was no question of arrest of A-2 on 1.6.82. A-2 did not reveal as to how and under what circumstances and from where he was arrested on 1.6.82. PW-33 ACP Sita Ram, an Inspector from Delhi Police was not expected to plant huge amount amounting to Rs.79,950/- from his own pocket. No motive was imputed to this witness to falsely implicate A-2 by planting this huge currency which had substantial value in the year 1982. A-2 did not examine any witness from his neighborhood to falsify recovery of currency from his house. He did not even bother to examine his in-laws to establish his plea that the articles i.e. golden ornaments, tape recorder, clothes etc. were given to him by his in-laws at the time of `Tilak' ceremony. A-1 and 56 State vs Omvir etc. A-4 had been arrested earlier by the police of PS Defence Colony in a case under the Arms Act. Only after recording their disclosure statements in the said case, involvement of A-2 came to the knowledge of the police regarding the incident and A-2 was apprehended only in pursuance of the disclosure statement of A-1 and A-4. No motive could be imputed to the police for falsely implicating A-2 and showing false recovery from his possession.
V. PW-1 Baljinder Singh, approver and associate of A-2 at the time of incident besides deposing about the involvement of A-2 in the commission of the offence categorically stated in his examination that A- 2 had got Rs.3 lacs from A-1 as share out of the looted amount. This statement of PW-1 Baljinder before the court was not controverted in the cross examination. Mere non joining of public persons at the time of recovery from the residence of A-2 at odd hours is not an adverse circumstance to disbelieve the testimony of PW-33 ACP Sita Ram. VI.The currency notes recovered from the possession of A-2 were identified by the prosecution witnesses to be the same which were looted from the Post office on the day of incident. PW2 Ramesh Dayal Sharma in his testimony before the court identified the currency notes Ex P23, P24 and P25 to be the same currency notes which had been robbed on the day of 57 State vs Omvir etc. incident. He further stated that all these three bundles were bearing the stamps of the Post office on the slips. They were the same which were looted from their Post office on 9.3.82. They were also bearing the signatures/initials of the cashier of the Post office. This witness further deposed that currency notes Ex P26,P27 and P28 were bearing the seal of Post office Defence Colony depicting the date as 9.3.82. VII.This witness was not cross examined on this aspect by the ld defence counsel for A-2. So the testimony of this witness regarding identification of the currency notes ExP24 to P28 looted from the Post Office has remained unchallenged. The witness categorically denied the suggestion that the slips and the signatures on the currency notes were prepared later on and were affixed after recovery of the currency notes. In the absence of any ill-will or enmity, this independent public witness is not expected to oblige the police to put slips and signatures on the currency notes Ex P24 to P28 subsequent to its recovery.
VIII.PW14 Lallan Parsad working as cashier on the day of incident also in his testimony before the court deposed that three packets Ex P23,P24 and P25 were bearing the slips on which there were stamps of their Post office and the stamps were bearing dates 9.3.82. On each packet his endorsement was there at point A. He had given the denomination and 58 State vs Omvir etc. the number of the notes and the date as 9.3.82. This endorsement was bearing his signatures. He had given the dates as 9.3.82 on the date when these packets were reconstructed. The seals on the slips were of Lodhi Road Post office, New Delhi.
IX.Again this witness was not tested in cross examination on this aspect. So the testimony of this witness regarding identification of the currency notes looted from the Post office has remained unchallanged. X. PW23 Baldev Kishan Bhatnagar also supported the prosecution on this aspect and deposed that on the date of incident, he was posted at Post office, Defence Colony under Lodi Road Head Office. After day's transaction, the cash amount was kept in a bag by 4 PM and thereafter the bag containing cash was sent to Lodhi Road Post office. On the next day, he came to know that a dacoity had been committed at Lodi Road Post office and the cash had been looted.
XI.This witness identified the currency notes Ex P26,P27 and P28 and deposed that these bundles belonged to Post office Defence Colony. He further deposed that the slips on the bundles were bearing his signatures at point A, B and C. He had handed over the daily account dated 9.3.82 received in Post office Defence Colony to the police. The said entries were recorded in the photocopy which is Ex PW23/A. Police seized the 59 State vs Omvir etc. photocopy vide seizure memo Ex PW23/B. Police also seized book of Post mark vide memo Ex PW23/C. Currency notes Ex P26 to P28 were bearing his signatures.
XII.The witness in the cross examination denied that the stamps of their Post office were affixed on the currency notes at the Post office at the instance of the police. This suggestion of the ld defence counsel inspires no confidence as this witness was not going to be benefited to make false statement regarding identification of the currency notes Ex P26 to P28. XIII.PW15 Madan Lal working as Post Master at Post Office Lodhi Road on the day of incident explained the procedure and deposed that the bundles of currency notes used to be reconstructed in their Post office. On a bundle of 100 currency notes, a slip of the Post office was used to be affixed along with the currency notes and the person who had counted the same such as cashier etc. used to sign that slip. Post office stamp was also affixed on that slip. But sometimes such stamps were not affixed. XIV.This procedure explained by PW15 conducted at the time of reconstruction of the currency notes has not been controverted in the cross examination and there is nothing to disbelieve the positive testimony of this witness.
XV.Above discussion reveals that the prosecution has fully established 60 State vs Omvir etc. recovery of cash of Rs. 79,950/- Ex P23 to P28 from the house of A-2. A-2 has failed to explain how this huge currency came into his possession. He did not reveal his source of income to accumulate such huge amount. The prosecution has further established that these currency notes were the same which were looted from the Post Office on 9.3.82. XVI.Though the prosecution has not proved on record any cogent document to show that articles Ex P114 to P 131 recovered from the house of A-2 were purchased by him with the looted amount, at the same time A-2 has also failed to explain and prove that these articles were purchased by him with his own money. He has further failed to produce on record any evidence to show that these articles were gifted to him by his in-laws at the time of of ' Tilak'.
XVII.Recovery of the currency notes looted from the Post office is a very material incriminating piece of circumstance against A-2 to connect him with the commission of the offence.
F. RECOVERY FROM THE POSSESSION OF A-1 & A-4 A-1 and A-4 were arrested by the police of PS Defence Colony on 6.6.82 in cases vide FIR No. 326/82 and 327/82 U/s 25 Arms Act. PW31 Insp Narender Pal Singh in his testimony before the court has deposed that on 6.6.82 he along with Insp S D Sharma. SI Dayanand etc. were on 61 State vs Omvir etc. patrolling duty and reached at Defence Colony Market at about 9.30 pm Insp S D Sharma received secret information regarding activities of A-1 as he was spending lavishly. Raiding party was organized and they all reached at Sukhdev Singh Market, Bisham Pitamah Marg along with secret informer. At about 10 pm two persons came on a motorcycle no. DEB-9692 make 'Yezdi' from Ring Road side and at the pointing out of secret informer, A-1 and A-4 were arrested. On their search one buttondar knife each was recovered from their possession. He prepared sketch of the knife Ex PW30/E and seized the same vide seizure memo ExPW30/F. A-4 was arrested and his personal search was conducted. On his personal search Rs. 512/- were recovered from his left side pocket of the pant. A-4 could not explain regarding possession of the same. Hence the cash was seized U/s 102 CrPC vide seizure memo Ex PW30/G. He prepared rukka Ex PW31/A and got the case vide FIR No. 327/82 registered. A-4 was interrogated and his disclosure statement Ex PW31/B was recorded. After completion of the investigation in case FIR No. 327/82, he filed challan. II. This witness further deposed that Insp S D Sharma investigated the case regarding recovery of knife from the possession of A-1. He also prepared sketch of the knife Ex PW30/A. knife was seized vide seizure memo ExPW30/B. A-1 was arrested and his personal search was conducted. On 62 State vs Omvir etc. his personal search, Rs 8953/- were recovered from his possession. The currency notes were having seal of Lodhi Road Post office dated 9.3.82. A-1 was unable to explain possession of the cash and the same was seized U/s 102 CrPC. One 'Titan' watch of golden colour was also recovered from the possession of A-1 and the same was seized vide seizure memo Ex PW30/C. The motorcycle was seized vide seizure memo Ex PW30/D. After completion of the investigation , Insp S D Sharma filed challan U/s 25 Arms Act against A-1. A-1 was interrogated and his disclosure statement Ex PW31/D was recorded in this regard. Knife Ex PA, currency notes Ex PB are the same which were recovered from the possession of A-
4. Knife Ex PC, currency notes Ex PD and gold colour watch make Titan Ex PE were the same which were recovered from the possession of A-1. III.In the cross examination this witness stated that they had left for patrolling duty from PS at about 9 pm. The information was received at about 9.30 pm. Secret information was received that A-1 was spending money lavishly and he had earned this money from some wrong method. A-1 and A-4 were apprehended at about 10 pm and they were brought to the PS at about 11 or 11.30 pm. No public persons was present at the spot at the time of apprehension of the accused persons. IV.PW32 Insp S D Sharma also supported the prosecution and corroborated 63 State vs Omvir etc. the testimony of PW31 Insp Narender Pal Singh on all material facts. This witness was not cross examined on behalf of the accused persons. V. PW30 Insp Dayanand also similarly deposed about the apprehension of A-1 and A-4 and recovery of knives and cash from their possession which were seized as referred above.
VI. In the cross examination this witness also stated that the secret information was received by the SHO at about 9.45 pm. They reached at Bisham Pitamah Marg at about 9.50 pm. VII.The testimony of all the above three witnesses regarding apprehension of A-1 and A-4 and recovery of the knives and cash from their possession reveals that no inconsistencies have come in their cross examination to discard their version. Material facts regarding apprehension and recovery of cash have remained unchallenged in the cross examination. The accused persons did not specifically deny their apprehension by these prosecution witnesses on 6.6.82. They did not explain how and under what circumstances they were apprehended by the police. They did not specifically deny that no such cash was recovered from their possession. VIII.A-1 has already expired. So no detailed findings regarding recovery of knife and cash are being recorded. However the unrebutted testimony of these prosecution witnesses establish beyond doubt that both these 64 State vs Omvir etc. accused persons were apprehended on 6.6.82 and separate cases under the Arms Act were got registered against them.
IX. A-4 in his confessional statement Ex PW19/E recorded by Sh M L Sahni, PW19 categorically admitted about his apprehension along with A-1 by the police of PS Defence Colony on 6.6.82. He further admitted about the recovery of knives from their possession. He further admitted about the recovery of Rs 8953/- from the possession of A-1 and Rs. 512/- from his possession. He categorically admitted that cash Rs 8953/- recovered from the possession of A-1 was the cash looted from the Post office. X. PW2 Rameshwar Dayal Sharma in his statement before the court identified this case Ex P17 to P19 recovered from the possession of A-1. He further stated that the three bundles Ex P17 to P19 were bearing seal of their Post Office ie Lodi Road. These were also bearing signatures of Sohan Lal, Head Cashier. This witness identified signatures/initials of Sohan Lal on these exhibits as he was familiar with his handwriting. This witness further stated that the three seals were bearing the date as 9.3.82. On Ex P17 and P18, the witness identified that the date 9.3.82 was written in the handwriting of Head Cashier Sohan Lal. Similarly Ex P20 was bearing the seal of their Post office depicting the date as 9.3.82 in the handwriting of Sohan Lal. Ex P21 and P22 were also bearing the 65 State vs Omvir etc. seal of their Post office and the date mentioned was 9.3.82. This witness further stated that these currency notes could not be available to the public because they were to be sent to Reserve Bank of India and after breaking these chits, news bundles were to be reconstructed by the Reserve Bank of India and thereafter issued to the other banks and the public with the seal of Reserve Bank of India.
XI. PW19 Sohan Lal was produced by the prosecution on 12.5.87 where in the examination in chief on Ex P119 and P20, the witness identified his signatures on the slips. The examination of this witness was deferred. It seems that this witness was not recalled by the prosecution thereafter for further examination. So the testimony of this witness can't be read into evidence.
XII.Recovery of Rs 8953/- from the possession of A-1(since dead) which was connected to the incident lends credence to the case of the prosecution and is an incriminating piece of circumstance against A-1 showing his involvement in the commission of the offence. XIII.Regarding recovery of Rs 512/- from the possession of A-4, no material has come on record to show if there was any special mark of identification on these notes showing that they they were robbed from the Post Office on the date of incident. These currency notes recovered 66 State vs Omvir etc. from the possession of A-4 were not bearing any seal of the Post office and were not identified to be the same currency notes looted from the Post office by the prosecution witnesses. So mere recovery of Rs. 512/- from the personal search of A-4 at the time of his arrest is not a incriminating piece of circumstance against him.
G. RECOVERY FROM THE POSSESSION OF A-3 The prosecution has relied upon the circumstance of recovery of robbed currency notes from the possession of A-3. Case of the prosecution is that Rs. 8750/-, part of the robbed amount, were recovered from the possession of A-3.
II. Material testimony on this aspect is that of PW 33 ACP Sita Ram. In his deposition before the court, he has deposed that on arrest of A-1 and A-4 and in pursuance of their disclosure statements, A-1 led the police party to H. No. LPT-303, Sarojini Nagar. The said house belonged to A-3. Pointing out memo Ex. PW33/J was prepared. A-3 was arrested at the pointing out of A-1. A-3 was interrogated and he voluntarily produced a sum of Rs.8750/-. The currency notes were put in a pulanda, sealed with the seal of MS and seized vide seizure memo Ex. PW33/K. A-3 was arrested and his personal search was conducted vide personal search memo Ex. PW33/A. The witness further deposed that the bundles of 67 State vs Omvir etc. Rs.10/- and 5/- recovered from the house of A-3 were having slips of Lodhi Road Post Office and initials on it.
III.This witness was cross examined on this aspect by the Ld. defence counsel for A-3. In the cross examination, the witness denied the suggestion of the Ld. defence counsel for A-3 that no money was recovered from A-3 or that A-3 was not present at his house and was away from Delhi on the said date or that father of A-3 was pressurized to part with Rs.8500/- given by PW1 Baljinder to A-3. The witness further denied that the sum of Rs.8500/- was given by father of A-3 from his pocket as he apprehended his involvement in this case. IV.Overall testimony of this witness reveals that recovery of Rs.8750/- has not been controverted by A-3. Only plea of A-3 is that this money was extracted by police from his father. In his statement recorded u/S 313 Cr.P.C also, plea of A-3 is that this money was given to the police by his father.
V. A-3 has failed to produce any evidence in defence to substantiate his plea that these currency notes seized vide seizure memo Ex. PW33/K consisting of various denominations were in-fact paid by his father. No complaint whatsoever was ever lodged against the police officials by A-3 or his father for pressurizing them to part with this cash. In the seizure 68 State vs Omvir etc. memo Ex. PW33/K, presence of father of A-3 at the spot does not find mention. A-3 did not examine any witness in defence to show as to under what circumstances these currency notes were handed over by his father to the police. A-3 did not lead any evidence to show that at the time of recovery on 7.6.82 vide seizure memo Ex. PW33/K, he was not present at the house or that he was away at some specific place as alleged by him. Seizure memo ex. PW33/K bears his signatures. A-3 did not explain how his signatures happened to appear on Ex. PW33/K when he himself was not allegedly present at his house at the time of recovery. VI.No motive has been imputed to this witness in the cross examination by A-3 for falsely planting Rs 8750/- upon him after extracting the same from his father. In the absence of any prior enmity or ill-will, PW33 ACP Sita Ram was not expected to falsely involve A-3 by creating false evidence. A-3 was apprehended at the pointing out of A-1 and prior to that PW33 was not aware about his involvement in this case. So there is nothing to disbelieve the positive testimony of PW33 Sita Ram regarding recovery of Rs 8750/- from the possession of A-3.
VII.Testimony of PW33 ACP Sita Ram has been corroborated by PW1 Baljinder Singh who turned approver in this case. In his deposition before the court, PW1 Baljinder Singh categorically stated that he had given Rs.
69 State vs Omvir etc. 14,000/- out of Rs. 46,000/- to A-3 after the incident. He and A-3 had spent some amount during their visit at Chandigarh. This witness further stated that on 7.6.82, A-1 and A-4 came along with the police at his residence and he handed over Rs. 20,050/- to the police which he had concealed in his books. Thereafter they went along with the police to the residence of A-3 and he was found standing in the gallery of his house. A- 3 was interrogated by the police and on his interrogation, A-3 also took out Rs. 8750/- and handed over the same to the police. On that bundle also a slip dt. 9.3.82 of Post office Jor Bagh was affixed. The police seized the currency notes handed over by A-3 after preparing its pulanda. This witness further gave the detail of the denomination of the currency notes recovered from the possession of A-3. The said notes were out of currency notes of booty. The witness identified the notes recovered from the possession of A-3 and also stated that the two bundles of 18 notes contained paper slips and two Post office slips of Lodhi Road, New Delhi dt 9.3.82 were also affixed on each. Bundle of Rs.5/- currency notes also contained the Post office seal of Lodhi Road dt 9.3.82. There was another bundle of Rs.5/- notes. There were no slip on it but a very small piece of paper still existed under the pin.
VIII.In the cross examination, the witness denied the suggestion of the ld 70 State vs Omvir etc. defence counsel for A-3 that the amount alleged to have been given by A- 3 belonged to his father or that this money was handed over to the police by his father. The witness further denied the suggestion of the ld defence counsel that father of A-3 had noted down the numbers of seven notes of Rs. 50/- which were included in Ex P5. The witness categorically stated that no numbers were noted down by father of A-3 in his presence and the amount was produced by A-3.
IX.No material discrepancies have been elicited in the cross examination to disbelieve the statement of this witness who was associate of A-3 at the time of commission of robbery. No motive was imputed again to this witness also for falsely dragging A-3 by creating false evidence of recovery of Rs 8750/- from his possession. No suggestion was put to this witness in the cross examination if A-3 was not present at his house at the time of recovery as suggested to PW33 ACP Sita Ram. Again no suggestion was put to this witness in the cross examination if A-3 was away to any particular place on the date of incident. It is also not clarified as to who forced the father of A-3 to part with this money to the police.
X. The currency notes are Ex P1 and P2 (two bundles of Rs.10 currency notes of 100 each) and Ex P3 and P4 (two bundles of 100 notes) each of 71 State vs Omvir etc. Rs. 5/- denomination. One slip recovered from the bundle Ex P15 and other currency notes collectively Ex PA were the same which were recovered from A-3.
XI.These currency notes having the slips of Post Office Lodi Road were identified by material prosecution witnesses to be belonging to the Post Office and were part of the robbed amount on the day of incident. XII.PW2 Rameshwar Dayal Sharma in his deposition before the court stated that he had gone before the Magistrate regarding the identification of notes which were taken by the dacoits. The witness in his deposition before the court as PW2 identified two bundles Ex P1 and P2 containing slips of his Post office depicting the date as 9.3.82 . He further stated that the slips on these exhibits were signed by Shambhu Nath Cashier with whose signatures he was familiar. The witness further identified the seal of the Post office and the date 9.3.82 in the handwriting of Shambhu Nath Cashier on Ex P3 consisting of 100 notes of Rs. 5/- denomination. This witness further identified the slip Ex. P15 to be belonging to their Post Office and the seal depicting the date 9.3.82. These slips were bearing signatures of PW Lallan Prasad who had also given the date as 9.3.82. The witness stated that the aforesaid amount was the same which was robbed from their Post Office.
72 State vs Omvir etc. XIII.In the cross examination, the witness denied the suggestion of the ld. defence counsel that the slips on these currency notes were affixed subsequently at the instance of the police.
XIV. I do not subscribe to this contention of the Ld. defence counsel that PW 2 Rameshwar Dyal, a responsible Govt. Official would succumb to the pressure of the police and shall permit them to affix slips of Post Office on the currency notes falsely after its recovery. This independent public witness was not going to be benefited by falsely putting the Post Office slips on the currency notes recovered by the police. Nothing has been suggested as to how and under what circumstances the slips on these currency notes happened to be put up by the police. The suggestion of the ld. defence counsel is based on no evidence.
XV.PW-14 Lallan Prasad, Postal Assistant at Lodhi Road Post Office working as Cashier on the date of incident also supported the prosecution on this aspect and corroborated the version given by PW-2 Rameshwar Dayal. He also identified the slip on the bundle of Rs.5/- currency note. He stated that endorsement at Point `A' was written and signed by him. The date was 9.3.82. The date was written by him on 9.3.82 itself. The bundle is Ex.P15.
XVI.Cross examination of this witness has not brought any discrepancy on 73 State vs Omvir etc. this aspect to disbelieve this witness. Only suggestion put to this witness in the cross examination that after recovery of the notes, the seals were put on the packets and the packet were prepared in the Post Office. Nothing was suggested as to how, when and why the seals on the currency notes recovered by the police, were put by independent post office employees. In the absence of any ulterior motive, PW-14 Lallan Prasad is not imagined to put post office seals on the currency notes recovered by the police after about three months of the incident. Material facts deposed by this witness that he himself had put the date etc. on the slips as 9.3.82 has not been controverted in the cross examination.
XVII.Testimony of all these witnesses referred above establish beyond doubt that Rs.8750/- were recovered from the possession of A-3 and these currency notes Ex.P-1 to P-4 were part of the robbed amount on the date of incident from the Post Office. Recovery of currency notes from the possession of A-3 is an incriminating piece of evidence connecting him with the commission of offence. A-3 failed to explain how and under what circumstances these currency notes happened to come in his possession. There is nothing on record to show if A-3 was not aware that these currency notes were not part of the robbed cash.
74 State vs Omvir etc.
H. RECOVERY FROM THE POSSESSION OF BABU LAL (A-5)
Accused Babu Lal has expired during the pendency of the trial. So no detailed findings regarding recovery of cash and ornaments are being recorded. Case of the prosecution is that A-5 was the father of A-2 and on 8.6.82 on the basis of secret information he was arrested while passing through Sewa Nagar Railway Crossing. Rs 2,45,000/- were recovered from him along with nine items of gold and silver ornaments. PW33 ACP Sita Ram in his testimony before the court deposed that A-5 was interrogated and his disclosure statement Ex PW33/M was recorded. The cash and ornaments were seized vide seizure memo Ex PW33/N. The bundles of currency notes recovered from the possession of A-5 were having stamps of Lodhi Road Post office with initials. A-5 was arrested and his personal search was conducted vide personal search memo Ex PW33/O. I. There is nothing to disbelieve the prosecution case regarding recovery from the possession of A-5 father of A-2. Such huge currency in the year 1982 can't be expected to be planted by the police on A-5. A-2 did not explain as to how and under what circumstances, his father deceased Babu Lal happened to retain the huge currency in his possession.
I. RECOVERY FROM THE POSSESSION OF A-6
75 State vs Omvir etc.
Case of the prosecution is that as per the pointing out of A-8, A-6 was apprehended and his personal search was conducted vide personal search memo Ex.pw22/X. He was interrogated. A-6 got recovered Rs.9200/- which were seized vide seizure memo Ex.PW33/L. II. A-6 has denied recovery of any cash from his possession. In his statement recorded U/S 313 Cr. P.C., A-6 claimed that nothing was recovered form his possession and he has been falsely implicated in this case. III.On scanning the testimony of the prosecution on this aspect, again, I am of the view that the prosecution has failed to establish beyond doubt that cash Rs.9200/- was recovered from the possession of A-6 or that he received or retained the same knowing or having reasons to believe the same to be robbed property. Prior to 19.6.82, A-6 was not at all in the picture. There was no incriminating circumstance against him. Only on 19.6.82 on arrest of A-8 her disclosure statement Ex.PW33/U was recorded in which she disclosed that Rs.9200/- were given by her to A-6 out of Rs.34,000/- entrusted to her by A-2 to conceal. No evidence was collected by the police during investigation to substantiate this disclosure statement of A-8. No evidence was collected by the police as to when A-8 handed over Rs.9200/- to him. Story presented by the prosecution on this aspect is contradictory as case of the prosecution itself is that out of 76 State vs Omvir etc. Rs.34,000/- entrusted to her by A-2, after retaining Rs.15,000/-, A-8 had spent the remaining amount in purchase of golden ornaments etc. So there was no question to hand over Rs.9200/- by A-8 to A-6. In the disclosure statement Ex.PW33/U, there is no mention regarding the denomination of the currency notes handed over by A-8 to A-6. A-8 to whom the cash was allegedly entrusted by her brother is not expected to part with Rs.9200/- without seeking permission of her brother A-2. A-6 is also not imagined to take Rs.9200/- from A-8 without specific purpose. There is nothing on record to show if A-6 was ever aware about involvement of A-2 in the commission of the dacoity. There is nothing on record to show if A-6 was aware about Rs.34,000/- to have been handed over by him to A-8 for concealment.
IV.No independent public witness was joined at the time of recovery from the possession of A-6. In the disclosure statement Ex.PW33/U there is no mention of the house of A-6 where the money recovered was kept. This disclosure statement does not bear signatures of A-6 when allegedly he was present at the time of recording the said disclosure statement. Again after coming to know about the arrest of A-2 about 12 days prior to the alleged recovery, A-6 was not expected to retain the robbed amount at their residence to create evidence against them. No disclosure statement 77 State vs Omvir etc. of A-6 was recorded in this case. Seizure memo Ex.PW33/Z contains the signatures of one Ram Kishan but he has not been examined to corroborate the version given by PW-33 ACP Sita Ram regarding recovery of this amount of Rs.9200/-. So I am of the view that the prosecution has failed to establish this circumstance also and to prove the recovery of Rs.9200/- from the possession of A-6 or that the same was received or retained by A-6 knowing or having reasons to believe the same to be robbed property.
J. RECOVERY FROM THE POSSESSION OF RATAN LAL, A-7.
Further case of the prosecution is that Rs.9000/- were recovered from the possession of A-7. PW-33 ACP Sita Ram in his deposition before the court has stated that A-7 was arrested at the pointing out of A-8 and his personal search was conducted vide personal search memo Ex.PW22/Y. A-7 was interrogated and he got recovered Rs.9000/- which were seized vide seizure memo Ex.PW33/Z. II. A-7 has denied any recovery of cash from his possession. His plea U/S313 Cr. P.C. is that he has been falsely implicated in this case being a neighbour of sister of A-2.
III.On scrutinizing the testimony of the prosecution on this aspect, again I am of the view that the prosecution has failed to establish if any cash of 78 State vs Omvir etc. Rs.9000/- was recovered from the possession of A-7 or that he received or retained the same knowing or having reasons to believe the same to be robbed property. Again involvement of A-7 was not in picture prior to 19.6.82. Only in the disclosure statement of A-8 it was recorded that she handed over Rs.9000/- to her neighborer A-7. There is no evidence on record as to when A-8 handed over Rs.9000/- to A-7. A-8 against whom there are allegations of retaining robbed property is not imagined to hand over the part of the currency notes bearing the seals of Post Office Lodhi Road to her neighborer to expose her brother. As observed above, the case of the prosecution itself is inconsistent when it is alleged that out of Rs.34,000/-, after retaining Rs.15,000/- A-8 had spent the remaining amount in purchasing golden ornaments etc. seized in this case. So there was no question to hand over Rs.9000/- by A-8 to A-7. A-7 was only neighborer of A-8 and A-8 is not expected to hand over the cash of Rs.9000/- only for the purpose of concealment and A-7 is not expected to oblige her without any ulterior benefit.
IV.Testimony of PW-33 ACP Sita Ram was not been corroborated by any other witness. No independent witness was joined at the time of search of the house of A-7. Seizure memo bears signatures of one Ram Kishen but he has not been examined by the prosecution. Adverse inference is to 79 State vs Omvir etc. be drawn against the prosecution for not examining the material witness. In the absence of any corroboration, I am of the view that the prosecution has failed to prove beyond doubt that A-7 was found in possession of any cash of Rs.9000/- which he received or retained knowing or having reasons to believe the same to be robbed property. The prosecution has failed to establish this circumstance. K. RECOVERY FROM THE POSSESSION OF GIRIJA DEVI, A-8 Case of the prosecution is that on 19.6.82 on search of the house of A-8 and on interrogation, pointing out memo regarding the money kept by her in the house was prepared. She was arrested and her personal search was conducted vide memo Ex.PW33/V. On search of the house of A-8, Rs.15,000/- were recovered in cash. 23 other items of gold and new clothes reported to have been purchased by her from the robbed amount were also seized. The currency notes were kept in a pulanda, sealed with the seal of MS and other jewellery articles were also kept in a pulanda, sealed with the seal of MS and seized vide memo Ex.PW33/W. II. A-8 has denied her involvement in the commission of the offence and has denied recovery of any such cash from her house. In her statement recorded U/S 313 Cr. P.C, she claimed that she was innocent and has been falsely implicated in this case. She had come to attend the marriage 80 State vs Omvir etc. of her brother A-2. Her children were with her and she was carrying clothes of her children and the jewellery for attending the marriage. She was picked up by the police from Sewa Nagar and falsely implicated in this case. Police took her chain, ring, two tabij, key rings and clothes belonging to her and her children.
III.On scrutinizing the testimony of the prosecution on this aspect, I am of the view that the prosecution has failed to establish if cash of Rs.15,000/- along with 23 other items of gold and new clothes allegedly purchased by her out of the looted amount were recovered from the possession of A-8 or that she received or retained the cash knowing or having reasons to believe the same to be robbed property.
IV.Prosecution has relied upon the testimony of PW-33 ACP Sita Ram who in his testimony before the court stated that on 19.6.82, these recoveries were effected. The prosecution failed to examine any other witness to corroborate the testimony of PW-33 ACP Sita Ram. Admittedly A-8 is the sister of A-2 against whom there are allegations of active participation in the commission of dacoity at the Post office on 9.3.82. A-2 was arrested on 7.6.82 and on the same day cash about Rs.79,950/- along with golden ornaments and clothes is alleged to have been recovered from his possession. At that time, A-2 did not reveal if he had handed over any 81 State vs Omvir etc. cash out of the looted amount to his sister A-8. No evidence has come on record to show as to when and for what purpose A-2 handed over Rs.34,000/- to A-8 to conceal. This fact finds mention only in the disclosure statement Ex.PW33/U of A-8 only. The prosecution has failed to establish any date on which Rs.34,000/- were entrusted to A-8 to conceal. Had it been so, A-8 must not have spent substantial amount in purchase of golden jewellery and clothes for herself. A contrary version finds mention in the disclosure statement Ex.PW33/U where it is recorded that she handed over Rs.9200/- to A-6 and Rs.9000/- to her neighbor Ratan Lal (A-7). In the disclosure statement Ex.PW33/U there is no mention if any amount out of Rs.34,000/- allegedly given to her by A-2 was spent by her in purchasing any golden article or piece of clothes. Again no evidence was collected by the prosecution as to when and from where A-8 purchased the golden ornaments and got her clothes stitched from one Vijay Tailor. Vijay tailor was no examined in this case to find out if on what date A-8 had got stitched the clothes recovered in this case from her.
V. This cash of Rs.15,000/- seized vide seizure memo Ex.PW33/W was not recovered from the possession of A-8 in pursuance of disclosure statement of A-2. PW-33 ACP Sita Ram has stated that on 17.6.82, A-2 82 State vs Omvir etc. had pointed out the house of A-8 as per his disclosure statement but the house of A-8 was found locked. There is nothing on record to show as to when A-8 came to the said house and if so from where. House of A-8 was not visited on 18.6.82. There is nothing on record to show if the house of A-8 was put on guard on 17.6.82.
VI.On 19.6.82, no independent public witness was joined at the time of search of the house of A-8. IO has failed to explain why no independent public witness from the neighborhood was joined at the time of search of house of A-8. There is nothing to infer if the said house was in exclusive possession of A-8 or if anybody else was also present in the house on 19.6.82.
VII.Father of A-2 i.e. A-5 was apprehended itself on 8.6.82 near Sewa Nagar Railway Crossing. A huge currency is alleged to have been recovered from his possession. After arrest of her brother and his father on 7.6.82 and 8.6.82, A-8 is not expected to retain the looted cash in her possession at her house to create evidence against herself. When A-2 had kept substantial amount of the looted cash in his possession, there was no sense to give only Rs.34,000/- to A-8 for the purpose of concealment only.
VIII.Moreover there is no evidence on record to show if A-8 was aware that 83 State vs Omvir etc. the cash allegedly recovered from her possession was part of the looted amount. The prosecution has failed to establish beyond doubt that A-8 received or retained the cash knowing or having reasons to believe the same to be robbed property.
IX.Recovery after about 12 days from the date of arrest of A-2 from the house of A-8 does not inspires confidence The prosecution has failed to establish this circumstance.
L. RECOVERY OF MOTORCYCLES Prosecution has further relied upon the recovery of motorcycles used in the commission of the offence. PW1 Baljinder Singh, approver in his testimony before the court disclosed used two motorcycles no. DHT-4481 make Yezdi and another motorcycle no. DEX-2890 in the commission of dacoity.
II. Both these motorcycles were recovered during the investigation of the present case.
III.PW4 ASI Harpal Singh in his testimony before the court stated that on 8.3.82 he was posted at PS Vinay Nagar. On that day investigation of case FIR No. 108/82 U/s 379 IPC regarding theft of motorcycle no. DHT 4481 was assigned to him. He went to the spot and prepared the site plan. This witness further stated that on 13.3.82 the aforesaid motor 84 State vs Omvir etc. cycle was recovered from near Madrasi School, Laxmi Bai Nagar as unclaimed. It was taken into possession and seizure memo was prepared. The motorcycle was deposited in the malkhana of PS Vinay Nagar. This motorcycle subsequently was given to one B B Chadha. This witness was not cross examined by the accused persons. So testimony of this witness regarding recovery of motorcycle on 13.3.82 has remained unchallanged. Similarly is the testimony of PW5 HC Kamal Dev who was present at the time of recovery of this motorcycle along with PW3 ASI Harpal Singh. IV.PW6 SI Shish Ram in his testimony before the court stated that on 9.3.82 he was posted as ASI at PS Defence Colony. Investigation of FIR No. 142 U/s 379 IPC regarding theft of motorcycle no. DEX-2890 was assigned to him. On 10.3.82 he was on patrolling duty along with Ct Ramesh Chand and Mahabir. He found that very motorcycle lying unclaimed outside kothi no. G-380, Defence Colony. He prepared seizure memo of the said motorcycle and deposited the same in the malkhana. On 12.3.82 motorcycle was given on superdari to its owner Ramesh Gaur. V. This witness was cross examined on behalf of A-3. However, nothing has come in the cross examination to disbelieve the testimony of the witness regarding recovery of motorcycle on 10.3.82.
VI.PW7 Ct Ramesh Chand has also supported the testimony of PW6 SI 85 State vs Omvir etc. Shish Ram regarding recovery of motorcycle no. DEX 2890 on 10.3.82. VII.PW11 Samuel from Transport Authority proved the record pertaining to both these motorcycles.
VIII.The above evidence adduced on record by the prosecution reveals that both these motorcycles used in the commission of the offence were found during investigation. Recovery of both these motorcycles whose number were detailed by PW1 Baljinder Singh approver, during his deposition before the court lends credence to the story presented by him regarding commission of dacoity. Recovery of these motorcycles shows that both these motorcycles were in existence and were used after committing its theft. It further corroborates the version given by PW1 Baljinder and show that the number of motorcycles given by him in his testimony were not fake or fictitious. Recovery of both these motorcycles used in the commission of the offence lying unclaimed/abondened is an incriminating circumstances against the accused persons.
M. RECOVERY OF KNIVES FROM A-1 AND A-4 In the connected files under Arms Act against A-1 and A-4, the prosecution has proved beyond reasonable doubt regarding recovery of knives from their possession at the time of their apprehension by the police of PS Defence Colony. A-1 has already expired. A-4 in his statement before 86 State vs Omvir etc. the Ld. MM Sh M L Sahni U/s 164 CrPC admitted the recovery of knife from his possession. The witnesses effecting recovery of knives were also not cross examined. So the testimony of material prosecution witnesses on this aspect has remained unchallenged and proves the recovery of knife from the possession of A-4.
N. CONCLUSION Above discussion reveals that PW-1 Baljinder Singh who turned approver has fully supported the prosecution on all material facts. He has admitted his complicity in the crime. He himself was accomplice, was privy to of the offence and was directly involved in the transactions. He made full and true disclosure before the Ld. ACMM. There is nothing to disbelieve his testimony before the court qua his associates as PW-1 Baljinder Singh has no ulterior motive to falsely implicate them in the absence of prior enmity/ill will simply to save himself. II. Law regarding value to be attached to the testimony of an approver is well settled. Object of Section 306 Cr. P.C is to obtain true evidence of offences by the grant of pardon to accomplices so as to prevent the escape of the offenders from punishment for lack of evidence. Though an approver is particeps criminis as soon as a pardon is granted to him with a view to obtaining his evidence, he becomes witness qua the case in 87 State vs Omvir etc. which he is to be examined, and continues to assume that role up to the time when his failure to comply with the condition causes a forfeiture of the pardon.
III.An approver's evidence has to satisfy a double test:(i) His evidence must show that he is a reliable witness and that test is common for all. The second test of approver evidence is that it must be sufficiently corroborated.
IV.Section 114 Illustration (b) of Evidence Act is a rule of prudence and practice which practically amounts to a rule of law that the evidence of an accomplice ought not to be acted upon unless it is corroborated as against the particular accused in material respects. Corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused.
V. Presumption under illustration (b) of section 114 Evidence Act is in the nature of precautionary provision in cooperating the rule of prudence which is ingrained in the appreciation of approver's evidence. When the evidence of the approver is inculpatory and it is 88 State vs Omvir etc. corroborated by other ocular or medical evidence, the conviction of the accused on the basis of accomplice evidence is proper. (AIR 1997 Supreme Court 1074).
VI. Section 133 Evidence Act clearly states that accomplice is a competent witness against an accused person and his conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
VII. In case of Suresh Chand Bahri Vs. State of Bihar, AIR 1994 Supreme Court, 2420, Hon'ble Supreme Court has observed that a definite rule has become crystallized to the effect that though a conviction can be based on uncorroborated evidence of an accomplice, as a rule of prudence it is unsafe to place reliance on the uncorroborated testimony of an approver as required by illustration (b) of Section 114 of the Act. VIII. In case of Rameshwar Vs. State of Rajasthan AIR 1952 SC 54, the Hon'ble Supreme Court has laid down four principles with regard to the nature and extent of corroboration :
(1)that it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction; all that is required is that there must be some additional evidence rendering it probable that the story
89 State vs Omvir etc. of the accomplice (or complainant) is true and that it is reasonably safe to act upon it.
(2)That independent evidence must not only make it safe to believe that the crime was committed, but must in some way reasonable connect or tend to connect the accused, with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime, (3)that the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another, (4)that the corroboration need not be direct evidence that the accused committed the crime - it is sufficient if it is merely circumstantial evidence of his connection with the crime.
IX. In the case of State of T.N. Vs Suresh reported in AIR 1998 SC 1044, the Hon'ble Supreme Court has held as under :
The law is not that the evidence of an accomplice deserves outright rejection if there is no corroboration. What is required is to adopt great circumspection and care when dealing with the evidence of an accomplice. Though there is no legal necessity to seek corroboration of accomplice's evidence, it is desirable that the court seeks reassuring circumstances to satisfy the judicial conscience that the evidence is true.
X. In the present case the testimony of PW-1 Baljinder Singh, approver has fully implicated A-1 (since dead), A-2, A-3 and A-4 besides accused Omesh (since PO) for the commission of dacoity.
XI.Testimony of PW-1 Baljinder Singh has been corroborated qua A-1 and A-4 whereby both of them were identified by material prosecution witnesses as discussed above. Testimony of PW-1 Baljinder Singh has been corroborated qua A-2 and A-4 whereby huge recovery of robbed
90 State vs Omvir etc. cash was effected from their possession, as discussed above. XII.Confession made by A-4 before the Ld. MM Shri M.L. Sahani U/S 164 Cr. P.C. further corroborates the version given by PW-1 Baljinder Singh, approver. In his confession as discussed above, A-4 categorically confessed his involvement in the commission of offence along with his associates PW-1 Baljinder Singh, A-1, A-2, A-3 and Omesh (PO). XIII.Confession of an accused person against a co-accused is not evidence in the ordinary sense of the term. However, in the present case confession of A-4 was recorded U/S 164 Cr. P.C by the Ld. MM. Such a confession can be used to lend assurance to other evidence against a co- accused.
XIV.The proper way to approach a case of this kind is to marshal the evidence against the accused excluding the confession altogether consideration and whether it is believed; conviction can be sufficiently based on it. Even it is culpable of believe independently of the confession, then it is not necessary to qua the confession in aid. In such an event the Judge may call the aid in confession and use it the lend assurance and this fortify himself in believing what was the aid of the confession he could not be prepared to accept. (Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 129).
91 State vs Omvir etc.
O. RESULT
In view of my above discussion I am of the view that the prosecution has established beyond the shadow of reasonable doubt that on 9.3.82 accused Omesh (since PO) along with A-1 Ombir (since dead), Ashok Kumar (A-2), Rajiv Lakhanpal (A-3) and Babu Ram (A-4) all in furtherance of their common intention committed dacoity at Post Office, Lodhi Road. II. None of the accused persons has given plausible explanation to the incriminating circumstances appearing against them. They have not lead any worth while evidence on record to falsify the testimony of the prosecution witnesses. They have not lead any evidence in defence to show that they were not present at the place of occurrence at the time of incident or that they were present at a specific place at that time. III.The defence version given by the prosecution witnesses in defence does not inspire confidence. They did not examine any independent witness to show their innocence. A-2 did not examine any witness from his in- laws to show that he was to get married soon before the incident. A-3 did not adduce any evidence in defence to show that he was taking his yearly test in March 1982 as suggested in the cross examination. So much so A- 3 did not examine Atul who was alleged to have accompanied him to Chandigarh.
92 State vs Omvir etc. XV.Minor contradictions, discrepancies and improvements made by the prosecution witnesses are not fatal to the case as these do not go to the root of the case.
XVI.The prosecution has thus established commission of offence punishable U/s 395 IPC against accused Omesh (since PO), A-1, A-2, A-3 and A-4. The prosecution has further established commission of offence punishable U/s 395 IPC r/w section 397 IPC against Omesh (since PO), A-1, A-2 and A-4 as all of them were armed with weapons at the time of commission of offence and the weapons were used at the time of commission of dacoity. Since A-3 had remained outside the Post Office and was not armed with any deadly weapons, he can't be convicted U/s 397 IPC.
XVII.The prosecution has further proved the commission of offence punishable U/s 25 Arms Act by A-1 and A-4 in the cases under the Arms Act.
XVIII.Since A-1 has already expired, proceedings have already been dropped against him.
XIX.A-2 and A-4 are held guilty and convicted for the commission of offence punishable U/S 395/34 IPC r/w section 397 IPC.
XX.A-3 is held guilty and convicted for the commission of the offence 93 State vs Omvir etc. punishable U/s 395/34 IPC.
XXI.A-5 has also expired. Proceedings against A-5 has already been dropped.
XXII.Regarding accused Arvind Kumar (A-6), accused Rattan Lal (A-7 and accused Girija Devi (A-8) I am of the view that prosecution has failed to establish its case against them beyond the shadow of reasonable doubt. They are given benefit of doubt and are acquitted in this case. XXIII.Proceedings against accused Omesh (Since PO) are ordered to be consigned to record room U/s 299 CrPC.
Announced in the open court on 30/07/2007 Additional Sessions Judge New Delhi 94 State vs Omvir etc. IN THE COURT OF SHRI S. P. GARG: ADDITIONAL SESSIONS JUDGE: NEW DELHI
1. Sessions Case No: 580/96 State Vs. 1. Ashok Kumar s/o Babu Lal R/o 799, Gautam Puri, New Delhi (A--2)
2. Rajiv Paul s/o B D Paul R/o 208A/6A Savitri Nagar New Delhi (A--3)
3. Babu Ram s/o lakhi Singh R/o Dadupur, Gautambudh Nagar Noida (A--4) FIR NO : 38/82 PS : Lodhi Colony U/ S : 395/397 IPC
2. Sessions Case No : 19/83 State Vs. Babu Ram s/o lakhi Singh R/o Dadupur, Gautambudh Nagar Noida (A--4) FIR NO : 327/82 PS : Defence Colony U/ S : 25/54/59 Arms Act ORDER ON SENTENCE I have heard the convicts on the point of sentence.
95 State vs Omvir etc.
2. Convict Ashok Kumar (A-2) has prayed to take lenient view as he is the only earning member of his family. He has suffered trial in this case for about more than 25 years. He has remained in JC in this case for more than five years. He has a wife and three children including one daughter. He has no parents. he is not involved in any other criminal activity.
3. Plea of convict Rajiv Lakhanpal (A-3) is to grant him probation U/s 360 CrPC. He has remained in JC in this case for about one year. He was a school student at the time of incident. He did not actually participate in the commission of the dacoity and was not armed with any deadly weapon. He is the only earning member of his family consisting of his old ailing mother aged about 71 years and father aged about 84 years. He has two minor daughters aged about 14 years and 3 years. He has no criminal background. Ld. counsel for convict A-3 has relied upon the authority reported in AIR 1983 SC 654.
4. Plea of convict Babu Ram (A-4) is that he is not a previous convict. He is doing agricultural work at his village. He has two unmarried daughters. There is none else to look after them. He has also remained in JC in this case for more than five years.
5. I have considered the prayers of the convicts and have gone through the file.
96 State vs Omvir etc.
6. On perusal of the file, it reveals that the crime committed by the convicts is gruesome and heinous. The convicts pre-planned commission of dacoity at Post Office with intention to rob the public money. They acquired deadly weapons and committed broad day light dacoity. They criminally intimidated the Govt. officials performing their duties at the Post Office. Even one of them was slightly injured in the process. The convicts robbed huge amount amounting to more than Rs. 12 lacs from the Post Office and shared the booty. This robbed amount had substantial value in the year 1982. Instead of earning their livelihood by honest means, the convicts indulged in highly illegal activity to commit dacoity at Govt. Office. Convicts deserve no leniency as they were well aware about the consequences of their acts. In such cases of crime against society, deterrent sentences are called for. The mere fact that the incident took place in the distant past is no ground for leniency. There was no justification/compulsion whatsoever for the convicts to commit heinous offence.
7. No probation can be granted to A-3 as claimed by him as offence U/s 395 IPC is punishable with imprisonment for life.
8. Considering all the facts and circumstances of the case and considering the prayer of convict A-2, the fact that he has suffered trial for the last 97 State vs Omvir etc. more than 25 years and is not involved in any other criminal case of such nature and it was his maiden venture ; the fact that he has also remained in JC in this case for more than five years ; the fact that he is the only earning member of his family ; the fact that there is no involvement of the convict in any other case subsequent to the commission of dacoity in this case ; A-2 Ashok Kumar is sentenced to undergo RI for 10 years with fine of Rs. 2000/- and failing to pay the fine, to undergo SI for three months for the commission of the offence punishable U/s 395 IPC r/w section 397 IPC.
9. Regarding A-4, considering his prayer ; the fact that he is an aged person to look after his ailing mother and two minor sons ; the fact that he is not a previous convict ; the fact that he has already remained in JC in this case for more than 5 years and has suffered trial for about 25 years and considering other mitigating circumstances ; A-4 Babu Ram is sentenced to undergo RI for 10 years with fine of Rs. 2000/- and failing to pay the fine, to undergo SI for three months for the commission of the offence punishable U/s 395 IPC r/w section 397 IPC.
10.A-4 is further sentenced to undergo RI for one year with fine of Rs. 1000/- and failing to pay the fine to undergo SI for one month for the commission of the offence punishable U/s 25 Arms act in case FIR No :
98 State vs Omvir etc. 327/82 of PS Defence Colony.
11.Both these sentences qua A-4 shall run concurrently.
12.Regarding A-3, considering his prayer and role in the commission of the dacoity ; the fact that he is a young person having two minor kids to look after and old parents to take care of them ; the fact that he is not a previous convict and was a young man at the time of incident ; the fact that he has remained in JC in this case for about one year and has suffered trial for about 25 years ; the fact that he did not enter inside the Post Office to criminally intimidate the officials present there and was not armed with any deadly weapon ; A-3 Rajiv Lakhanpal is sentenced to undergo RI for seven years with fine of Rs. 5000/- and failing to pay the fine to undergo SI for four months for the commission of the offence punishable U/s 395 IPC.
13.The period already remained in JC by the convicts in this case shall be counted and set off against their substantive sentences U/s 428 CrPC.
14.Copy of judgment be given free of costs to the convicts.
15.File be consigned to record room.
Announced in the open court on 08/08/2007 Additional Sessions Judge New Delhi