Delhi District Court
State vs (1) Deepak Pathak on 10 July, 2023
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IN THE COURT OF MS. SHEFALI SHARMA:
ADDL. SESSIONS JUDGE-02( NORTH ):
ROHINI DISTRICT COURTS : DELHI
In the matter of:-
(Sessions Case No. 58240/2016)
FIR No. 97/2013
Police Station Mahendra Park
Charge sheet filed Under Section 395/397/392/34 IPC
Charge framed Under Section 397/395/34 IPC
State V/s (1) Deepak Pathak
S/o Dharambir Pathak
R/o D-1/61, Pratap Vihar,
Part-III, Kirari, Suleman Nagar,
Delhi.
(2) Vicky
S/o Ram Chander
R/o D-755, Gali No.30,
Amar Colony, Gokulpur,
Delhi - 110095.
(3) Chand @ Raj Kumar
S/o Ravi Shankar
R/o D-874, Gali No.31-32,
Amar Colony, Gokulpur,
Delhi - 110095.
(4) Shiv Shanker @ Shanker
S/o Kanwar Pal
R/o House No. 21, Pushpa Garden,
Bheta, Hazipur, Loni,
Ghaziabad, UP.
SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park
State Vs. Deepak Pathak Etc.
Page No. 1 of 34
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(5) Surender @ Judi
S/o Ramesh Ram
R/o Gali No.2, Som Bazar,
Tilak Ram Colony,
Bheta, Hazipur, Loni,
Ghaziabad, UP.
......Accused persons
Date of institution 10.09.2013
Arguments concluded on 10.07.2023
Judgment Pronounced on 10.07.2023
Decision Acquitted
JUDGMENT
BRIEF FACTS
1. Events which set the prosecution machinery into motion are that on 15.04.2013, the complainant, who was a police official/Naib Court and was going towards Rohini Courts for his duty and was travelling in a DTC bus route no. 254 when he was surrounded by four boys, who robbed him of Rs.40,000/- which he was having in his pant by pointing a knife on his stomach. It is alleged that one boy cut his pocket and forcefully removed Rs.40,000/-. Thereafter, two of accused persons ran away towards Azadpur Railway Line and other two accused on a black Pulsar motorcycle. Thereafter, information was recorded vide DD No.13A and one HC Suraj Bhan reached at the spot and met the complainant and recorded his statement and eventually the present FIR was registered.
SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 2 of 34 -:3:- After recording the statement of other witnesses and on completion of the investigation, the charge sheet had been filed under Section 395/397/392/34 IPC by the IO.
CHARGE
2. On committal of the case to the Court of Sessions, vide order dated 28.10.2013 charge under Section 397 IPC against accused Chand and charge under Section 395/34 IPC against other remaining accused persons was found to be made out. The formal charge as above was framed against the accused persons on the said date to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. Thereafter, prosecution in support of its case have examined 12 witnesses in all.
PW1 is HC Sudesh Kumar. He deposed that on 09.05.13 he was posted as HC in PS Mahendra Park and on that day, at about 5.00 p.m. he along with Ct. Sanjeev, Ct. Suresh Chand, Ct. Dilawar and SI Devender were doing the vehicle checking at Mukaraba Chowk, Flyover towards Madhuban Chowk. That at about 6.00/6.15 p.m. one secret informer informed the IO that incident of robbery which was occurred on 15.04.13 at 10.00 a.m. at DTC Bus, and the accused involved in that incident came from Burari side on a Pulsar motorcycle. That on this information, IO asked public persons to join the raiding SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 3 of 34 -:4:- party but none agreed and went away without telling their names and addresses and thereafter, they started doing the vehicle checking after putting barricades. That at about 6.45 p.m. one person came from Burari side on Pulsar motorcycle and at the instance of secret informer he was apprehended and his name was revealed as Deepak Pathak. He further deposed that said person was interrogated and arrested vide arrest memo Ex.PW1/A and his personal search was conducted vide memo Ex.PW1/B. He further deposed that accused Deepak made disclosure statement Ex.PW1/C and Motorcycle no. DL 8S BD 2166 was also seized vide memo Ex.PW1/D. He further deposed that accused pointed out the place of occurrence i.e. Mukarba Chowk vide pointing out memo Ex.PW1/E. That after the completion of investigation, they came back to police station and deposited the case property in the malkhana. He further deposed that the motorcycle was got released on superdari by the wife of accused Deepak.
PW2 is Sh.Ram Chander/complainant. He deposed that on 15.04.13 at about 9.35 a.m. he was coming to my duty at Rohini Court where he was working as Naib Court. He further deposed that he boarded bus plying on route no. 254 from Bhalaswa Crossing Stand, Near Mukarba Chowk. That four boys in the bus encircled him and with the help of blade Rs.40,000/- which he kept in front pocket of his pant. That he raised noise and one of the boy had put a knife on his stomach and asked him to keep mum otherwise "Chaaku Aar Paar Kar Dunga". He SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 4 of 34 -:5:- further deposed that the co-passengers also become frightened due to the act of those boys and had not done anything. That when the bus reached at the bus stand above the railway bridge before Badli bus stand, those four boys got down from the bus and started fleeing away. That he also got down from the bus and chased the aforesaid boys and managed to catch hold of one boy. That one of the boy accompanying the boy to whom he caught hold came and made him freed from him by putting knife on me and two of the boys ran away towards railway track and other boys ran towards other side. He further deposed that he called at 100 number and PCR when arrived there. That local police reached there and recorded his statement Ex.PW1/A. He further deposed that he showed the place of incident and further investigation after registration of the case was assigned to ASI Jaswinder Singh. That he further showed to ASI Jaswinder Singh site plan in detail and site plan ExPW1/B was prepared.
He further deposed that on 06.05.13 he again joined the investigation of this case and visited the police station Mahendra Park and met SI Devender and with him accompanied to the spot again and narrated the sequence of events and showed him the place of incident and further told him that he chased the boys and two boys fled on a black colour motorcycle driven by a boy.
He further deposed that on 29.05.13 he joined the TIP proceedings and visited the Rohini Jail and identified two accused. TIP proceedings of accused Vicky is Ex.PW1/C. TIP SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 5 of 34 -:6:- proceedings of accused Surender @ Judi and Shankar are Ex.PW1/D and Ex.PW1/E, respectively. TIP proceedings of accused Chand @ Rajkumar is Ex.PW1/F. Judicial TIP proceedings of accused Deepak Pathak is Ex.PW1/G. He has pointed out accused Deepak, Chand @ Rajkumar and Shiv Shankar saying that they all three along with other two accused persons were involved in the incident of robbery. He has pointed out towards accused Surender @ Judi, Vicky, Shiv Shankar and Chand who were involved in the robbery and were present in the bus. He further deposed that he cannot tell the exact roles of the accused persons and he also cannot tell which of them put knife on them. He apprehended accused Shiv Shankar after getting down from the bus. He cannot tell which of the accused got accused Shiv Shankar released from my custody. He further deposed that accused Chand had removed his Rs.40,000/- from his pocket. He pointed out towards accused Deepak being the person who was on Pulsar and took away two accused with him but he cannot tell which of two accused fled away on his motorcycle. He further deposed that he identified remaining three accused persons in Rohini Court when they were present outside room no. 19 but the date he do not remember. It is correct that on 16.05.2013 while visiting the Rohini Court.
On being a leading question put to him by Ld. Addl. PP for the State, he deposed that he identified accused Deepak Pathak, being the accused who took away on his motorcycle his two accomplices after committing robbery with him and on SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 6 of 34 -:7:- 03.06.2013 at Rohini Court, he explained the roles of other accused persons namely Chand, Vicky, Shankar and Surender.
He has identified the motorcycle of accused Deepak as the motorcycle was got released on superdari by wife of accused Deepak as is Ex.P-1.
PW2 was cross examined by Ld. Addl. PP for the State on some aspects.
PW3 is HC Jitender. He deposed that on 15.04.2013, he was posted at P.S. Mahendra Park, Delhi and on that day, he recorded DD No. 13 A and 14 A and attested copies of the same are Ex.PW3/A and Ex.PW3/B respectively. He further deposed that on the same day while posted as duty officer, Ct. Maninder brought a rukka sent by HC Suraj Bhan on which basis, he registered the FIR EX.PW3/C and made endorsement on the rukka Ex.PW3/D. That the Certificate U/s 65B of Indian Evidence Act for the correctness of FIR is Ex.PW3/E. PW4 is Sh. Maninder. He deposed that on 15.04.2013, he was posted at P.S. Mahendra Park and on that day, on receipt of DD No. 13A he alongwith HC Suraj Bhan reached Mukarba Chowk Fly Over, near Railway Line Bus stand, and met with complainant Ram Chander to got his statement recorded. He further deposed that HC Suraj Bhan prepared rukka and handed over to him and he went to the police station and got the present case registered and returned to the spot alongwith ASI Jasvinder to whom further investigation was assigned. He further deposed that at the instance of the complainant Ram Chander site plan SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 7 of 34 -:8:- was prepared and efforts were made to search the accused persons but without success.
PW5 is Ct. Ghanshyam. He deposed that on 15.4.13 he was posted at Police Control Room, ITO and on that day he was working on extension no. 140 and received information from one Ravi Chandra s/o Sh. Bhim Singh from mobile number 9213853956 whereby he had informed 'Mukarba Chowk fly over par bus stand par meri jeb se 40,000/- nikal liye hai. He further deposed that he filled up the form and passed on the information on the channel. That the PCR form consisting of 2 pages is collectively Ex. PW 5/A. The attested copy of the said PCR form is Ex.PW5/B. PW6 is HC Suraj Bhan, who has deposed that on 15.04.2013 he was posted at PS - Mahendra Park and on that day, on receipt of DD No.13A Ex.PW3/A, he alongwith Ct. Mahender reached at Bus Stand, Mukerba Flyover before Railway Line Flyover, where complainant Ram Chander met and got recorded his statement Ex.PW1/A. He further deposed that he prepared the rukka Ex.PW6/A and handed over the same to Ct. Maninder, who went to the Police Station and got the present case registered and returned back to the spot alongwith ASI Jaswinder Singh to whom further investigation was assigned. He further deposed that ASI Jaswinder Singh at the instance of the complainant prepared the site plan.
PW7 is Retd. SI Jaswinder. He has deposed that on 15.04.2013, he was posted at PS Mahendra Park and on that SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 8 of 34 -:9:- day the investigation of the present case was assigned to him after the registration of the case FIR of the present case on the basis of the rukka prepared by HC Suraj Bhan, on the statement of complainant Ram Chander and Ct. Maninder handed over to me copy of FIR and original rukka and he alongwith Ct. Maninder reached at Mukerba Chowk Flyover, near Railway Line, where HC Suraj Bhan and complainant Ram Chander met him and he prepared the site plan Ex.PW1/B. He further deposed that he made efforts for the search of the accused persons, but without success and recorded the statement of the witnesses.
PW8 is Ct. Dilawer. He deposed that on 09.05.2013, he was posted at PS Mahendra Park and on that day, at about 5.15 p.m., he alongwith HC Sudesh, Ct. Sanjeev, Ct. Shule Chand. Ct. Satyawan alongwith SI Devender were doing vehicle checking at Mukerba Chowk Flyover road going towards Madhuban Chowk by putting barricades. At about 6:30 p.m., secret informer came and informed SI Devender that one robber out of the robbers who on 15.04.2013 at about 10 a.m. at Mukerba Chowk in DTC Bus by using knife robbed the money from a person would come from the Burari side. That several passersby were asked to join the investigation, but none of them had joined the investigation and they thereafter, on barricades started checking and at about 6:45 p.m. accused Deepak Pathak came from the side of Burari on a motorcycle and he was apprehended at the instance of the secret informer and inquiries made from him, who disclosed that the names of the co-accused SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 9 of 34 -:10:- Judi, Vicky, Shankar and Chand. He further deposed that accused Deepak Pathak was arrested vide arrest memo Ex.PW1/A and his personal search was carried out vide personal search memo Ex.PW1/B, who made the disclosure statement Ex.PW1/C. He further deposed that accused Deepak Pathak kept in muffled face vide memo Ex.PW8/A. That the motorcycle number DL-8S-BD- 2166 was taken into possession vide seizure memo Ex.PW1/D. That accused Deepak Pathak pointed out the place of the incident vide pointing out memo Ex.PW1/E. He further deposed that on 26.05.2013, he again joined the investigation in this case with SI Devender and alongwith HC Sudesh, Ct. Shule Chand, Ct. Satyawan, Ct. Sanjeev in two private vehicles reached Amar Colony, Gokulpuri, Delhi at about 3:40 p.m., where secret informer met and passed on the information about the accused Vicky involved in this case that he would come shortly to his house No.D-755, Gali No.30, Amar Colony, Gokulpuri, Delhi. He further deposed that several passersby were asked to join the investigation, but none of them joined the investigation and they thereafter on briefing by the IO SI Devender about 4 p.m. accused Vicky was apprehended at the instance of secret informer, who was arrested vide memo Ex.PW8/B. That his personal search was carried out vide memo Ex.PW8/C. His disclosure statement Ex.PW8/D. He further deposed that accused Vicky was kept in muffled face vide memo Ex.PW8/E. He further deposed that on the asking of the IO, SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 10 of 34 -:11:- accused Vicky had called his other co-accused persons Shankar, Chand and Surender @ Judi at Bhajanpura Petrol Pump. That at about 5:00 p.m., they alongwith accused Vicky went to Bhajanpura Petrol Pump and at the instance of accused Vicky, accused Shankar, Chand and Surender @ Judi were apprehended when they were coming from the side of Yamuna Vihar. He further deposed that SI Devender, HC Sudesh and Ct. Satyawan apprehended the aforesaid accused persons and he alongwith Ct. Shule Chand and Ct, Sanjeev were with accused Vicky. He further deposed that accused persons Shankar, Chand and Surender @ Judi were arrested vide arrest memos Ex.PW8/F, Ex.PW8/G and Ex.PW8/H. Their personal search were conducted vide memos Ex.PW8/J, Ex.PW8/K and Ex.PW8/L. Accused persons Shankar, Chand and Surender @ Judi made their disclosure statements Ex.PW8/M, Ex.PWS/N and Ex.PW8/O. He further deposed that ccused persons Shankar, Chand and Surender @ Judi were kept in muffled face vide memos Ex.PW8/P, Ex.PW8/Q and Ex.PW8/R and accused persons Vicky, Shankar, Chand and Surender @ Judi had pointed out the place of incident vide pointing out memos Ex.PW8/S, Ex.PW8/T. Ex.PW8/U and Ex.PW8/V. He further deposed that accused persons were medically examined and thereafter they were kept in lock up and the lock up was covered with white cloths. He further deposed that they returned to the police station and his statement was recorded. He has also identified the motorcycle Ex.P1.
SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 11 of 34 -:12:- PW9 is Ct. Satya Prakash. He has deposed that on 15.04.2013, he was posted at PCR, Police HQ on channel no. 133 and on that day, at about 10.30 a.m. information was received from mobile no. 9213853056 "Mukarba Chowk Flyover par bus stand par chaku dikha kar Rs. 40000/- ki robbery hai". 4-5 lakre hein. He further deposed that he filled the PCR form Ex.PW9/A and passed on the information on channel. He had also brought the certificate U/s 65 B of Indian Evidence Act given by Nodal Officer SI Harish Chander Pathak.
PW10 is Sh. Deepak Dabas, the then Ld. M.M. He has deposed that on 10.05.2013, TIP application Ex.PW10/A of accused Deepak Pathak S/o Dharmender Pathak in this case was marked to him by his link MM and he fixed the same for 14.05.2013. He further deposed that on 14.05.13, he conducted the TIP proceedings of accused Deepak Pathak at Distt. Jail Rohini who was identified by Sh. Sachin Rana, Asstt. Supdt. Rohini Jail but the accused did not want to join TIP proceedings. That the statement of accused has been separately recorded whereby he has refused to join the TIP proceedings despite warning. He further deposed that in view of the refusal of accused to join the TIP, the TIP proceedings Ex.PW1/G were concluded and he appended the certificate Ex.PW10/B. He further deposed that IO SI Devender Kumar moved an application Ex.PW10/C for providing the copy of TIP which was allowed and the TIP proceedings in a sealed cover sent to the concerned court vide his order Ex.PW10/D. SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 12 of 34 -:13:- PW11 is Ct. Sanjeev Kumar. He has deposed that on 09.05.13, he was posted at PS Mahendra Park and on that day, he joined the investigation in this case alongwith HC Sudesh, Const. Satyawan, Const. Sule Chand, Const. Dilawar alongwith IO SI Devender and they all were checking the vehicles while on picket duty at Mukarba Chowk, Flyover, road going towards Rohini. That one secret informer met and informed that the accused involved in the robbery incident dt. 15.04.13 whereby committing robbery in DTC bus on the point of knife, one of the accused involved in the aforesaid incident of robbery would come from the side of Burari on a black colour pulsar motorcycle. IO informed the aforesaid secret information to them and passersby were asked to join the investigation but none of them have joined the same. That on the instruction of the IO, they started checking the vehicle on barricade and at about 6.45 p.m. one motorcycle rider coming from the side of Burari, was stopped at the instance of secret informer, whose cersury search was carried out. That the name of the said motorcycle rider was revealed as Deepak Pathak. That accused Deepak Pathak on interrogation, admitted his guilt in the incident of robbery committed on 15.04.13 and disclosed the name of other co- accused persons namely Judi, Vicky, Shankar and Chand and further admitted that Rs. 40000/- cash was robbed from the pocket of one person in the aforesaid incident of robbery on 15.04.13 by showing knife to that person in DTC bus. He further deposed that accused Deepak Pathak was arrested, his personal SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 13 of 34 -:14:- search was carried out, who made the disclosure statement. He further deposed that accused Deepak Pathak was immediately kept in muffled face vide memo Ex.PW8/A and the motorcycle of accused Deepak no. DL-8S-BD-2166 was seized vide seizure memo Ex.PW1/D and accused Deepak was medically examined. He further deposed that they thereafter returned to the police station.
He further deposed that on 26.05.2013, he again joined the investigation in this case alongwith SI Devender Kumar and alongwith HC Sudesh const.Sule Chand, Const. Dilawar and const. Satyawan reached Amar Colony, Gokulpur at about 3.40 p.m. where secret informer met and told that accused Vicky involved in this case would come to his house at D-755, Gali No. 30, Amar Colony, Gokulpur, Delhi. The said information was given to SHO and on his instruction, a raiding party was constituted consisting of aforesaid officials including him and several passersby were asked to join the raiding team but none has joined the same. They thereafter went to Gali No. 30, Amar Colony and took our position there and started waiting of accused Vicky and at about 4 p.m., at the instance of secret informer, accused vicky was apprehended from Gali No. 30, Gokulpur, Delhi. He further deposed that accused Vicky was arrested, his personal search was carried out, who made the disclosure statement. He further deposed that accused Vicky was immediately kept in muffled face vide memo exhibited as Ex.PW8/E. He further deposed that accused Vicky telephonically SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 14 of 34 -:15:- called his other associates namely Chand, Judi and Shankar near Bhajanpura, Petrol Pump and IO at that place, also asked several passersby to join the raiding party but none of them have joined the same. That at about 5.10p.m. at the instance of accused Vicky, 3 boys coming from the side of Yamuna Vihar were apprehended by the IO with the help of HC Sudesh and const. Satyawan. Accused Vicky was in the custody of const. Sule Chand, Const. Dilawar and myself. That the name of the aforesaid three persons revealed as Chand @ Raj Kumar, Shankar @ Shiv Shankar and Surender @ Judi. He further deposed that accused Chand @ Raj Kumar, Shankar & Surender @ Judi were arrested, their personal search were carried out and they all made the disclosure statements. He further deposed that accused Chand @Raj Kumar, Shankar & Surender @ Judi were immediately kept in muffled face. He further deposed that mobile phone of accused Judi, Vicky, Chand and Shankar were taken into possession vide seizure memo Ex.PW11/A, EX.PW11/B, EX.PW11/C & Ex.PW11/D respectively. That accused Deepak Pathak had already pointed out the place of incident on 09.05.13 vide pointing out memo Ex.PW1/E i.e. near Mukarba Chowk bye pass. Accused Vicky, Chand, Shiv Shankar @ Shankar and Surender @ Judi on 26.05.13, also pointed out the aforesaid place of incident vide pointing out memo Ex.PW8/S, EX.PW8/U, EX.PW8/T and Ex.PW8/V respectively. He further deposed that accused persons were medically examined and were kept in lock up at PS Shalimar Bagh. He has also identified the motorcycle SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 15 of 34 -:16:- No. DL-8S-BD-2166 Ex.P1.
PW12 is SI Devender Kumar. He has deposed that on 04.05.2013, he was posted at PS Mahendra Park as SI and on that day, he joined investigation of this present case FIR as third IO on the direction of the then SHO. That on 06.05.2013, complainant came at PS and he recorded his supplementary statement U/S 161 Cr.P.C. He further deposed that on 09.05.2013, in the evening time, he conducted vehicle checking duty at Mukarba Flyover alongwith const. Sanjeeve, const. Dilawar, Const. Satyawan, const. Sule Chand and HC Sudesh. At that time, one secret informer met him and informed him that one person who has involved in the present case FIR would come towards Madhuban chowk side from Burari Chowk via Mukarba Flyover. Then, he formed a raiding party including aforesaid police official and briefed about the secret information to them and request passersby to join the raiding party but none agreed. Then, he started waiting alongwith raiding party and secret informer for the target. That at about 6.30 p.m. - 6.45 p.m., one person came towards their position on a motorcycle bearing no. DL8S-BD-2166 Black color Pulsar Motorcycle. That the said person was spotted by secret informer as a culprit involved in the present case FIR. Then, they got stopped said person alongwith motorcycle by putting barricades on the road and thereafter, overpowered him. He further deposed that upon enquiry, said person revealed his name as Deepak Pathak. That he interrogated accused Deepak Pathak wherein he confessed his involvement in SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 16 of 34 -:17:- the commission of offence in present case FIR. Then he arrested accused Deepak Pathak vide arrest memo Ex.PW1/A, personally searched vide memo Ex.PW1/B and recorded disclosure statement of accused vide memo Ex.PW1/C, seized aforesaid motorcycle which was recovered from the possession of accused vide seizure memo Ex.PW1/D bearing my signatures at point "E". He further deposed that he got covered the face of the accused Deepak Pathak with the help of muffle and prepared pointing out memo Ex.PW1/E. That thereafter, accused was brought to PS alongwith motorcycle and motorcycle was deposited in the malkhana and he again interrogated accused Deepak Pathak. That thereafter, accused was sent to police lock up after his medical examination.
He further deposed that on next day, he produced accused Deepak Pathak before the concerned court of Ld. MM in muffled face and took his four days PC remand. That during PC remand, he conducted several raids at the hide out of associates of accused Deepak Pathak but none could be apprehended at the instance of accused Deepak Pathak. That thereafter, he produced accused Deepak Pathak before the concerned court of Ld. MM in muffled face for conducting his TIP vide application EX.PW12/A and accordingly, TIP of accused Deepak Pathak was fixed for 14.05.2013 and on that day, accused Deepak Pathak refused to participate in TIP proceedings. That thereafter, accused was sent to judicial custody by the order of Ld. Court and he again took PC remand of Deepak Pathak on 18.05.2013 vide application SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 17 of 34 -:18:- Ex.PW12/B but nothing could be recovered. That he also recorded supplementary disclosure statement Ex.PW12/C. He further deposed that on 26.05.2013, he led the police party in the search of co-accused persons alongwith HC Sudesh Kumar, Const. Sanjeev, const. Sule Chand, const. Satyawan and const. Dilawar and they reached in the colony where house of accused vicky was situated and started searching accused Vicky and during search, accused Vicky was passing through the gali. He further deposed that with the help of police staff, he overpowered accused Vicky. He interrogated accused Vicky wherein he confessed his involvement in the commission of offence. Then he arrested accused Vicky vide arrest memo ExPWB/B, personally searched vide memo Ex.PWB/C. Then he got covered the face of accused Vicky with the help of handkerchief and prepared muffled face memo Ex.PW8/E. He further deposed that upon their asking, accused Vicky made call to his other three associates through his mobile phone and called them at Bhajanpura red light for meeting. Thereafter, they alongwith accused Vicky reached near the Bhajanpura red light and took position. That at about 5 p.m., all three associates / co- accused persons namely Chand @ Raj Kumar, Surender Judi and Shiv Shankar came at Bhajanpura red light together and as soon as, all three co-accused person reached at red light, he with the help of other police staff overpowered them at the instance of accused Vicky. He interrogated all three co-accused persons namely Chand @ Raj Kumar, Surender @ Judi and Shiv Shankar SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 18 of 34 -:19:- wherein all three co-accused persons confessed their involvement in the commission of offence. Then, he arrested all three co- accused persons namely Chand Raj Kumar, Surender @Judi and Shiv Shankar vide their respective arrest memos Ex.PW8/G, EX.PW8/F & Ex.PWB/M, personally searched all three accused persons vide memos EX.PW8/K, EX.PW8/J & Ex.PW8/L. He further deposed that he got covered faces of all three co-accused persons with the help of handkerchief vide muffled face memos Ex.PW8/O, EX.PW8/P & Ex.PW8/R respectively. He then prepared pointing out memo of the place of incident at the instance of accused persons namely Vicky, Chand @ Raj Kumar, Surender @ Judi and Shiv Shankar one by one at their instance vide respective pointing out memos Ex.PW8/S, Ex.PWB/U, Ex.PWB/T & PW8/V. He further deposed that then he recorded disclosure statements of all four accused persons Ex.PW8/D, Ex.PW8/N, Ex.PW8/M & EX.PW8/O. He further deposed that he seized mobile phones of all four accused persons vide respective seizure memos Ex.PW11/A, EX.PW11/B EX.PW11/C & Ex.PW11/D. That thereafter, accused persons were sent to police lock up after their medical examination and he deposited seized mobile phones in the malkhana of police station.
He further deposed that on 27.05.2013, he produced all four accused persons before the concerned Ld. MM in muffled face and moved an application Ex.PW12/E for their TIP and accordingly, TIP of accused persons were fixed on 28.05.2013 & 29.05.2013. He further deposed that on SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 19 of 34 -:20:- 28.05.2013, accused Surender and accused Shankar @ Shiv Shankar had refused to participate in their TIP proceedings. He further deposed that on 29.05.2013, TIP of accused Vicky and Chand @Raj Kumar were conducted in Rohini Distt. Jail wherein complainant identified both accused persons proceedings vide proceedings Ex.PW1/C & Ex.PW1/F. That thereafter, he took two days PC remand of all four accused persons for the recovery of case property but during PC remand of four accused persons, nothing could be recovered.
He further deposed that during course of investigation, complainant identified accused persons namely, Deepak Pathak, Surender @Judi and Shiv Shankar. That during investigation, he recorded the statement of witnesses and placed relevant documents with charge sheet and on completion of investigation, he prepared charge sheet and filed the same before the Hon'ble court.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
4. After closure of PE, the statement of the accused Deepak Pathak, Vicky, Chand @ Raj Kumar and Surender @ Judi was recorded u/s 313 Cr.P.C. on 25.11.2019 and that of accused Shiv Shanker @ Shanker was recorded on 29.11.2019 wherein they denied all the evidence put to them and stated that they have falsely implicated in the present case.
Accused Deepak Pathak submits that he was illegally and forcibly lifted from his house and falsely booked in this case and his motorcycle was also seized illegally from his SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 20 of 34 -:21:- house. Accused persons initially chose not to lead defence evidence in their defence and the matter was fixed for final arguments but subsequently upon application under Section 311 Cr.P.C. moved on behalf of accused Deepak Pathak, one witness i.e. DW1 Sh.Dharamvir Singh was examined.
DEFENCE WITNESS
5. In support of his case, accused Deepak Pathak has examined 01 witness.
DW1 is Sh. Dharamvir Singh, ATI, Token No.61282, Incharge Court and Accident of Peeragarhi Depot, DTC, New Delhi. He has brought the original Duty Officer Register of dated 15.04.2013 in respect of Red Colour buses of route no. 254 of Peeragarhi Depot. He further deposed that in the said DO Register, there is no complaint made by driver, conductor or by any police official in respect of any criminal incident on the red colour buses running on that day at route no.254 from Peeragarhi Depot. The attested copy of Duty Officer Register dated 15.04.2013 in respect of Red Colours buses of route no.254 of Peeragarhi Depot, running into 06 pages is Ex.DW1/A and attested copy of way bill (Marg Patra) dated 15.04.2013 running into 30 pages is Ex.DW1/2. He has further deposed that the said way bill register, there is no complaint made by driver, conductor or any other DTC official in regard of any criminal incident dated 15.04.2013 in any bus plying at route no.245 from Peeragarhi Depot.
SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 21 of 34 -:22:-
6. Thereafter, matter was fixed for final arguments.
ARGUMENTS
7. I have heard Sh. Harvinder Kumar Nar, Ld. Addl. PP for the State, Mr. Kashmir Singh, Ld. Counsel for accused Deepak Pathak and Mr. Shyamender Kumar, Ld. counsel for remaining all the accused persons.
8. It was argued by Ld. Addl. PP for State that the allegations levelled against the accused persons are of serious nature and the prosecution has proved its case vide the testimony of complainant, PW2, who was the material witness.
It was further argued that all the police officials have clearly proved the chain and the manner of investigation and merely because the witnesses are police officials their testimony cannot be disbelieved.
9. On the other hand, Mr. Kashmir Singh, Ld. Counsel for accused Deepak Pathak and Mr. Shyamender Kumar, Ld. counsel for remaining all the accused persons have argued that accused persons have been falsely implicated. It was further argued that the complainant was himself a police official/Naib Court and implicated the accused persons. That none of the accused persons were arrested from the spot. The alleged robbed money of Rs.40,000/- was never recovered. The weapon of SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 22 of 34 -:23:- offence i.e. the knife was also not recovered. There is no CCTV Footage of the incident which was seized nor the alleged torned pant of the complainant for the reasons best known to the investigating agency. It was vehemently argued that there is no public witness examined by the prosecution and the prosecution has failed to prove the case beyond reasonable doubt. Accordingly, all the accused persons deserve acquittal.
10. I have heard the arguments at length and perused the entire record.
FINDINGS
11. All the accused persons had been charged for the offence punishable under Section 395/34 IPC. In addition, accused Chand @ Raj Kumar had also been charged for the commission of offence punishable under Section 397 IPC.
12. The relevant Sections are reproduced as under :
SECTION 395 IPC "Punishment for dacoity.--Whoever commits dacoity shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.".
SECTION 397 IPC "Robbery, or dacoity, with attempt to cause death or grievous hurt.--If, SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 23 of 34 -:24:- at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any per-
son, the imprisonment with which such offender shall be punished shall not be less than seven years.".
SECTION 34 IPC "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone".
PRESUMPTION OF INNOCENCE
13. It is a settled law of criminal jurisprudence that a person is believed to be innocent till the guilt is proved against him. This principle is called The Presumption of Innocence. In another words, the accused is entitled to take advantage of reasonable doubt in respect of his crime. The principle finds its genesis in the Declaration of Human Rights under Article 11 Section 1 incorporated by the United Nations in 1948. It is also mentioned in the European Convention for the Protection of Human Rights in Article 6 Section 2 and United Nations International Covenant on Civil and Political Rights under Article 14, Section 2.
Presumption of Innocence is a re-statement of the rule that in criminal matters the prosecution has the burden of proving guilt of the accused in order to be convicted of the crime SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 24 of 34 -:25:- of which he is charged.
In Chandrashekhar Vs. State of Himachal Pradesh decided on 06.07.2018 relying on judgment of Data Ram Singh Vs. State of UP passed by the Hon'ble Supreme Court on 06.02.2018, it was held that:
"the freedom of an individual is utmost important and cannot be curtailed specially when guilt if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he is deemed to be innocent........ A fundamental postulate of criminal juris prudence is a presumption of innocence meaning thereby that a person is believed to be innocent until found guilty..........
Thus, the inference which is culled out from the above is that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt.
14. In this backdrop, I proceed to delve upon the evidence adduced on behalf of the prosecution.
MATERIAL WITNESS
15. The prosecution has heavily relied upon the testimony of PW2 complainant Ram Chander.
PW2 deposed that on 15.04.13 at about 9.35 a.m. he was going to his duty at Rohini Court where he was working as Naib Court. He further deposed that he boarded bus plying on route no. 254 from Bhalaswa Crossing Stand, Near Mukarba Chowk. That four boys in the bus encircled him and with the help SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 25 of 34 -:26:- of blade robbed him of Rs.40,000/- which he kept in front pocket of his pant. That he raised noise and one of the boy had put a knife on his stomach and asked him to keep mum otherwise said "Chaaku Aar Paar Kar Dunga". He further deposed that the co- passengers also became frightened due to the act of those boys and had not done anything. That when the bus reached at the bus stand above the railway bridge before Badli bus stand, those four boys got down from the bus and started fleeing away. That he also got down from the bus and chased the aforesaid boys and managed to catch hold of one boy. That one of the boy accompanying the boy to whom he caught hold came and freed him by putting knife on him and two of the boys ran away towards railway track and other boys ran towards other side. He further deposed that he called at 100 number and PCR arrived there. That local police reached there and recorded his statement Ex.PW1/A. He further deposed that he showed the place of incident and further investigation after registration of the case was assigned to ASI Jaswinder Singh.
He further deposed that on 06.05.13 he again joined the investigation of this case and visited the police station Mahendra Park and met SI Devender and with him accompanied to the spot again and narrated the sequence of events and showed him the place of incident and further told him that he chased the boys and two boys fled on a black colour motorcycle driven by a boy.
He further deposed that on 29.05.13 he joined the SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 26 of 34 -:27:- TIP proceedings and visited the Rohini Jail and identified two accused. He pointed out accused Deepak, Chand @ Rajkumar and Shiv Shankar saying that they all three along with other two accused persons were involved in the incident of robbery. He pointed out towards accused Surender @ Judi, Vicky, Shiv Shankar and Chand who were involved in the robbery and were present in the bus. He further deposed that he cannot tell the exact roles of the accused persons and he also cannot tell which of them put knife on him. He apprehended accused Shiv Shankar after getting down from the bus. He cannot tell which of the accused got accused Shiv Shankar released from my custody. He further deposed that accused Chand had removed his Rs.40,000/- from his pocket. He pointed out towards accused Deepak being the person who was on Pulsar and took away two accused with him but he cannot tell which of two accused fled away on his motorcycle. He further deposed that he identified remaining three accused persons in Rohini Court when they were present outside room no. 19 but the date he do not remember.
However, from his cross-examination, it is revealed that the material prosecution witness/complainant could not prove the exact role played by each of the accused persons. He stated that he had apprehended one co-accused Shiv Shanker but could not prove who had got him released from his custody. He also stated that accused Chand had removed Rs.40,000/- from his pocket and accused Deepak was driving the Pulsar motorcycle but he could not tell which of the two accused fled away on his SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 27 of 34 -:28:- motorcycle. He was cross examined by Ld. Addl. PP for the State as he was resiling from his earlier statement and thereafter improvised that due to lapse of time, he could not explain the role of accused persons. However, in his cross examination by Ld. Counsel for accused persons, he again admitted that he cannot tell which of the accused person had shown him the knife. Thus, the essential ingredient to prove the specific allegation of using a weapon by a particular accused to constitute an offence under Section 397 IPC could not proved beyond doubt by the prosecution as the material witness i.e. complainant could not identify or explain who had used the alleged weapon i.e. the knife.
The complainant in the original complaint Ex.PW1/A had stated that four boys had surrounded him in the bus and robbed away Rs.40,000/- which were in the pocket of his pant by pointing out knife at him. The said statement was attested by HC Suraj Bhan bearings his signatures at point B. The said HC Suraj Bhan also prepared the rukka Ex.PW6/A and handed over the same to Ct. Maninder, who got registered the FIR.
It is pertinent to mention that the said HC Suraj Bhan stood in the witness box as PW6 and admitted that there were many public persons, who were present at the spot but he did not make any inquiry or record their statements.
Coming to the factum of dacoity, it is pertinent to mention that PW2 had stated that he was robbed of Rs.40,000/-
SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 28 of 34 -:29:- from his pocket in a moving bus which he explained stopped only on the next bus stop despite his raising alram. Contrary to this, PW5 Ct. Ghan Shyam, who had received the call/first information at the PCR deposed that the caller informed that he was robbed of Rs.40,000/- on the bus stand and not in the moving bus. The said PCR form Ex.PW5/A was relied by the prosecution itself. This is a material contradiction in the story of the prosecution.
16. In this backdrop, I seek to analyse the other evidence adduced by the prosecution.
RECOVERY OF WEAPON OF OFFENCE/KNIFE
17. The alleged weapon of the offence is knife which was allegedly used, was never seized by the IO. It was the case of the complainant that the front side of his pant was cut by the blade. Even the said blade was never seized neither the alleged cut pant was seized by the IO for reasons best known to him, which could have been vital piece of evidence.
PUBLIC WITNESSES
18. Admittedly, the incident took place in broad day light at 9.35 a.m in a moving bus which was as per the version of complainant PW2 was completely full and he even did not get a seat and was standing in the bus at the time of incident in front of back gate. If version of the complainant is to be believed then, SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 29 of 34 -:30:- there must have been several persons on board. There was also the bus driver and the conductor of the bus who could have been the material public witnesses. However, the IO failed to join any such public witness at the vital stages of investigation.
Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages. In this regard reliance is being placed on the following judgments:-
(a) In case law reported as "Anoop Joshi Vs. State"
1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
(b) In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help.
SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 30 of 34 -:31:- The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner". "4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
Further, there is no CCTV footage of the alleged incident which the IO has procured which could have been a vital piece of evidence in the present case.
SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 31 of 34 -:32:- Further, it is pertinent to mention that interestingly two separate DDs i.e. 13A and 14A had been recorded that day regarding the incident. The original entries in the DD register were proved as Ex.PW3/A and Ex.PW3/B. The first entry DD No.13A is timed as 9.58 a.m Ex.PW3/A, according to which the money was robbed from the pocket of the caller at the bus stand. There is no mention of any knife being used at the first information received.
However, again at 10.38 a.m. i.e. after a gap of 40 minutes approximately, another call vide DD No.14A was made where an improvised version of the caller/complainant is made, where there is a mention of knife being used. It is pertinent to mention that the caller is a police official himself, who was a Naib Court and he forgetting such a vital information regarding use of a weapon and then mentioning the same in a subsequent call seems to be a very doubtful behaviour.
Further, PW5 had deposed that in the PCR Form information was recorded as received that robbery had taken on the bus stand, whereas the complainant in the original statement/ rukka Ex.PW1/A that he was robbed in the moving bus, which is a material contradiction in the story of the prosecution.
The accused in his defence had produced a duty officer register wherein the acts/information regarding any accident or incident is generally recorded through DW1 Sh. Dharamvir Singh, ATI, Token No.61282, Incharge Court and Accident of Peeragarhi Depot, DTC, New Delhi. He had brought SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 32 of 34 -:33:- the original Duty Officer Register of dated 15.04.2013 in respect of Red Colour buses of route no. 254 of Peeragarhi Depot.
He categorically deposed that in the said DO Register, there is no complaint made by driver, conductor or by any police official in respect of any criminal incident on the red colour buses running on that day at route no.254 from Peeragarhi Depot. Although, this alone may not be sufficient evidence in isolation to acquit the accused persons but considering it comprehensively along with the other evidence adduced by the prosecution, it surely creates doubt in the story of the prosecution.
19. The remaining witnesses were merely formal police witnesses who deposed regarding the manner of investigation.
CONCLUSION
20. The material prosecution witnesses specially PW2, who is the complainant could not bring home the guilt of the accused persons beyond reasonable doubt. There is no CCTV footage or any independent public person, who may have been present at the time of incident or even at the time of alleged robbery who have been examined and thus, in view of the aforesaid detailed findings, there is no hesitation in holding that the prosecution has failed to prove its case beyond reasonable doubts and accordingly accused persons namely Deepak Pathak, Vicky, Chand @ Raj Kumar, Shiv Shankar @ Shanker and SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 33 of 34 -:34:- Surender @ Judi, deserve a benefit of doubt and hence stand acquitted of the charges levelled against them.
Dictated and announced (Shefali Sharma) in the open Court on 10.07.2023 Addl. Session Judge-02 (running in 34 pages) (North), Rohini Courts/Delhi SC No. 58240/16/16, FIR No. 97/2013, PS Mahendra Park State Vs. Deepak Pathak Etc. Page No. 34 of 34