Delhi District Court
State vs Inderjeet Singh Chaudhary @ on 17 July, 2023
IN THE COURT OF SH. SACHIN SANGWAN :
ADDITIONAL SESSION JUDGE (FAST TRACK COURT - 01): SOUTH-
EAST DISTRICT : SAKET COURTS : NEW DELHI
SC No.1269/2016
STATE Vs INDERJEET SINGH CHAUDHARY @
RAJU & ORS
FIR No.: 77/2010
U/S 394/397/411/414/120B/34 IPC & 25/54/59 Arms
Act
PS : C. R. Park
Particulars of the case
1. Date of offence : 15.04.2010
2.Offence complained of : u/s 394/397/411/414/120B/34 IPC & 25/24/29
Arms Act
3.Name of the complainant : Kishan Lal
4. Name of the accused no.1 : Inderjeet Singh Chaudhary @ Raju
his parentage s/o Sh. Talewar Singh,
his residential address R/o: H. No.305, gali no.4,
Govind Puri, New Delhi.
Name of the accused no.2 : Mahavir Singh Rawat
his parentage s/o Sh. Pitamber Singh Rawat
his residential address R/o: H. No.27, Subash Khand,
Giri Nagar, New Delhi.
Name of accused no.3 : Trilochan Dhyani
his parentage s/o Sh. Ram Charan Dhyani
his residential address R/o: 124, Subash Khan,
Giri Nagar, Kalkaji, New Delhi.
Name of accused no.4 : Dilshad
his parentage s/o Sh. Idris,
his residential address R/o: G12/278, Sangam Vihar,
New Delhi.
SC No. 1269/2016
FIR No.77/2010 Pages 1 of 40
Name of accused no.5 : Karambir Thapa
his parentage s/o Sh. Tulbir Thapa,
his residential address R/o: Volongi, District Palpa,
Ward No.9, Anchal-Lumbani,
West Nepal.
Name of accused no.6 : Monu Thapa @ Chotey
his parentage s/o Sh. Ram Bahadur
his residential address R/o: E-72, Navjeevan Camp,
Govind Puri, New Delhi.
(Proceedings against Monu Thapa @ Chotey
already abated vide order dated 24.03.2022)
Name of accused no.7 : Mintu @ Mustafa
his parentage s/o Sh. Rukkan Singh,
his residential address R/o: F-21, Raghuvir Nagar,
New Delhi.
Name of accused no.8 : Rajan Singh
his parentage s/o Sh. Hayat Singh,
his residential address R/o: H. No.125, Malli Tal,
Nainital, Uttrakhand
Name of accused no.9 : Bir Singh @ Babu
his parentage s/o Sh. Tara Singh,
his residential address R/o: Jhuggi No. D-399,
Navjeevan Camp,
Govind Puri, New Delhi.
5. Plea of accused : Pleaded not guilty
6.Final order : All eight accused acquitted.
Date of Institution : 18.09.2010
Date of Judgment reserved on : 05.07.2023
Date of Judgment : 17.07.2023
SC No. 1269/2016
FIR No.77/2010 Pages 2 of 40
JUDGMENT
1. CHARGESHEET 1.1 As per chargesheet, the present case was registered on the statement of complainant Kishan Lal recorded by PSI Rajeev Kumar. As per the complainant, he was working as a delivery man at Karni Tele Communication at Sant Nagar, New Delhi for the last few years and his work was to deposit/withdraw the money in the banks. On 15.04.2010 at about 12.15-12.30 pm he went on his motorcycle bearing no.DL3SBF0719 from his office at Sant Nagar to Corporation Bank, GK-II for depositing the money and for other office work. He kept cash amount of Rs.12,84,000/- (twelve lakh eighty four thousand only) in bundles of denominations of thousand, five hundred and hundreds in his black bag besides the cheque books, official documents and his own papers of motorcycle. At about 12.40-12.45 pm when he reached at E Block GK II suddenly three boys on another motorcycle hit his motorcycle from the backside and made him fall along with his motorcycle. On his falling down, one fat boy got down from his motorcycle, tried to snatch his black colour bag while beating him. On his resistance, the said boy took out a knife and hit on his left leg below the knee and also attacked on his head with handle of said knife 2-3 times. Meanwhile, his another associate also got down from the motorcycle, took out a pistol (desi Katta) and put the same on his chest and told him to leave the bag else he will kill him. Meanwhile, their third associate, sitting on the motorcycle started shouting and prompting him to shoot the complainant with pistol. Thereafter they all after snatching his black colour bag fled away from the spot on their pulsar motorcycle. He was unable to see the number of the motorcycle. Many public persons were present at the spot but nobody helped him. Fat and dark complexion boy was aged about 35/36 years and his height was about 5'6" and other two boys were aged about 25-26 years and both of them were of medium built. He stated that he can SC No. 1269/2016 FIR No.77/2010 Pages 3 of 40 identify all of them. He was taken to the Private Nursing home by the public persons and police was informed by someone later on. Then PCR vehicle came and took him to AIIMS Trauma Center where he got treatment and during this period, his statement was recorded by the IO. Aforesaid three boys snatched his bag containing Rs. 12,84,000/- and necessary documents by showing knife and pistol (desi katta) while beating him. He prayed that legal help shall be provided to him and all three boys shall be punished for their crimes.
1.2 The IO/Inspector Sanjay Kumar Singh took up the investigation and during the course of investigation, he deployed the secret sources and technical analysis of mobile phone numbers of employees of Karni Communication Private Limited was done. Convicts/accused with same modus operandi were interrogated. After analysis of call details of employees of Karni Communication, one employee Inderjeet Singh Chaudhary was interrogated and during his interrogation, when he was asked about mobile no. 99900027878, he became evasive. When he was strictly confronted, he confessed about his involvement in the crime and stated that he was in debt and the creditors were pressing him hard for the money. He stated that for settling his dues and for making arrangement for the payments, he contacted his friend Mahabir Singh Rawat about two months before the incident and told him that one of his colleague namely Kishan Lal carries heavy cash from his office on motorcycle almost on daily basis for depositing the same in various banks in Delhi and if he could be robbed, his dues could be settled and Mahavir Singh Rawat would also get enough money. Thereafter, Mahavir Singh Rawat and Inderjeet Singh Choudhary shared this information with Trilochan Dhyani, who was quite senior to them and was from the same locality and had a clout in the locality. Then, Trilochan Dhyani summoned one Dilshad of Sangam Vihar for arranging the hitmen/striker for the job and discussed the entire plan. Dilshad asserted that Karambir Thapa @ chacha could arrange for the SC No. 1269/2016 FIR No.77/2010 Pages 4 of 40 hitmen/strikers for carrying out the job. Thereafter, Karambir Thapa was called in a meeting at Subhash Khand, Giri Nagar and he assured that he would arrange for the hitmen/strikers very soon. Initial criminal conspiracy was hatched in the said meeting and finally a meeting was held 3-4 days prior to the incident in the evening at Giri Nagar which was attended by Mahabir Singh Rawat, Trilochan Dhyani, Dilshad, Karmbir Thapa and himself. In the said meeting, Karambir Thapa assured that hit men/strikers had been arranged for carrying out the robbery and the entire plan was checked out. As per the said plan, Mahabir Singh Rawat and Dilshad reached at the office of Karni Communication at 70, Sant Nagar, New Delhi where Inderjeet Singh was introduced to Monu Thapa, one of the strikers/hitmen. Then Inderjeet Singh showed the complainant Kishan Lal's motorcycle, which was supposed to carry cash to the bank. Inderjeet Singh Chaudhary then went upstairs to his office. On 15.04.2010 at about 1.00 pm he learnt from Mahabir Singh Rawat that the job had been accomplished as per the plan. Thereafter, Inderjeet Singh Chaudhary went to see the victim/complainant at AIIMS Trauma Center to ascertain the complainant Kishan Lal's statement, complainant's condition and also to confirm whether everything went as per their plan. Inderjeet Singh Chaudhary further discussed that he did not receive his share in the booty and was assured that he would get the same in due course of time as and when the matter settles down. Finally Inderjeet singh Chaudary was arrested in the present case on 11.05.2010 at 03.00 pm. 1.3 During course of further investigation, Mahabir Singh Rawat was interrogated and he confessed to the crime. He seconded what Inderjeet Singh Chaudhary had disclosed. He stated that both of them had shared this information with Trilochan Dhyani, who in turn, summoned Dilshad from Sangam Vihar. Dilshad had roped in Karamvir Thapa @ chacha as he was known to many snatchers/robbers. He also stated that he participated in meetings held at Subhash Khand, Giri Nagar to chalk out SC No. 1269/2016 FIR No.77/2010 Pages 5 of 40 the plan. He further asserted that Dilshad had introduced him to Monu Thapa on the day of incident, who was supposed to reach at Karni Communication Private Limited along with other gang members. He further added that he was introduced to Rajan, who had given him his mobile number 9811742113 and asked him to remain in touch with him on said number only. He also disclosed that Inderjeet Singh Chaudhary had shown them the motorcycle on which complainant Kishan Lal had to carry cash to the banks. Mahavir Singh Rawat and Dilshad had followed Monu Thapa and his gang members on a separate bike while one another person also followed them on a bullet motorcycle. He asserted that Monu Thapa, Rajan and their associate assaulted Kishan Lal with a butt of desi katta and knife before snatching the bag containing money and fleeing away. During all this time, he was in constant touch with Trilochan Dhyani on his mobile number 9968214110 through his mobile number 9990027878 and the location of his mobile number was of Sant Nagar, area of C. R. Park i.e. the office of Karni Communications Pvt. Ltd. and the place of incident. Mahavir Rawat stated that he was given Rs.65,000/- as his share in the booty by Dilshad in the evening. Further, at about 4.15 pm he was arrested in the present case and Rs. 50,700/- (fifty thousand seven hundred only) was recovered from the almirah in his house. The recovered bundle of notes having a slip of Corporation Bank and stamp of Karni Communication Private Limited were taken into possession vide seizure memo.
1.4 During further investigation, Trilochan Dhyani was also interrogated and he supported the version of Inderjeet Singh Chaudhary and Mahavir Singh Rawat regarding the meetings held at Subhash Khand, Giri Nagar to chalk out the plan. He added that he had roped in Dilshad, who in turn, had called Karambir Thapa. He stated that he had gone to court on the day of incident i.e. on 15.04.2010 but was in constant touch with Mahaveer Singh Rawat through mobile number 9968214119 on SC No. 1269/2016 FIR No.77/2010 Pages 6 of 40 his mobile number 999027878 and was taking the stalk of the situation. He also asserted that he was given Rs. 70,000/- as his share in the booty. Trilochan Dhyani got Rs.52,000/- recovered from his house. The recovered money/bundle had slip of Corporation Bank and stamp of Karni Communication Private Limited. 1.5 During investigation, accused Dilshad was nabbed at Okhla and he disclosed about his involvement in the crime and supported the fact that he was roped in by Trilochan Dhyanai and that he further roped in Karambir Thapa. He also supported that he participated in the meetings held at Giri Nagar, Subhash Khand along with Inderjeet Singh Chaudhary, Mahaveer Singh Rawat, Trilochan Dhyani and Karamveer Thapa. He disclosed that on 15.04.2010 he introduced Inderjeet Singh Chaudhary to Monu Thapa and they were shown the motorcycle by Inderjeet Singh Chaudary on which the money was to be carried. He also confirmed that Monu Thapa was introduced to him by Karambir Thapa. He pointed out the spot from where Monu Thapa and gang members assaulted Kishan Lal with butt of desi katta and knife and snatched the bag. He was also arrested in the case. He got Rs.10,200/- out of his share of Rs.50,000/- recovered from his house at Sangam Vihar. The recovered/bundle had a slip of Corporation Bank and stamp of Karni Communication Pvt. Ltd.
1.6 During investigation, Karambir Thapa was also interrogated and he confessed his involvement in the crime. He supported the earlier versions of Inderjeet Singh Chaudhary, Mahavir Singh Rawat, Trilochan Dhyani and Dilshad. He admitted that he had roped in Monu Thapa as a hit man to carry out the robbery. He was also arrested on the same day i.e. 11.05.2010. He got Rs.10,600/- recovered which was buried in a plot behind Naveen Tea Shop, Okhla Phase II, News Delhi. The recovered money/bundle had slip of Corporation Bank and stamp of Karni Communication Pvt. Ltd.
SC No. 1269/2016FIR No.77/2010 Pages 7 of 40 1.7 During further investigation, search for Monu Thapa was made and he was finally apprehended on 14.05.2010 and he confessed his involvement in the crime. He supported the fact that he was roped in by Karambir Thapa in the first week of April, 2010 and he contacted his friend Rajan to carry out the job. Rajan confirmed that he would arrange for the hit men. Rajan roped in Billu @ Balwinder @ Punjabi. He admitted that he was introduced to Mahavir Singh Rawat and Dilshad by Karambir Thapa earlier in the morning of the day of the incident i.e. on 15.04.2010. He admitted that he carried out the robbery along with Rajan and Billu @ Balwinder and assaulted the man carrying the bag with butt of desi katta at E Block, GK-II, New Delhi. He also asserted that during this time, Mahavir Singh Rawat and Dilshad kept on following them on a separate bike while Mintu @ Mustafa also followed them on a bullet motorcycle. He confirmed that during those days he was in touch with Rajan on his mobile number 9811742113 through his mobile number 9910670108 that he took from his neighbour Sher Bahadur. He further stated that in those days, after hatching the conspiracy, he also remained in touch with co-accused Dilshad and Mintu @ Mustafa on their mobile numbers 9999032369 and 9873587047. He was arrested at 10.30 am from his jhuggi in Govindpuri. Out of his share of Rs.1,00,000/-, he got Rs.27,200/- recovered from his jhuggi in Nav Jeevan Camp, Govindpuri. The recovered money/bundle had slip of Corporation Bank and stamp of Karni Communication Private Limited. He also pointed out the place of incident. Monu Thapa also refused to participate in the TIP proceedings before the Hon'ble Court. 1.8 During course of further investigation, search for Rajan, Billu @ Balwinder and Mintu @ Mustafa was made and finally a message was received from Special Cell, Rohini that they have arrested Mintu @ Mustafa @ Mintu Baba, who confirmed his involvement in the present robbery. Mintu @ Mustafa was interrogated after seeking permission from the Hon'ble Court on 15.05.2010 and he confirmed his SC No. 1269/2016 FIR No.77/2010 Pages 8 of 40 involvement and asserted that he was the man who was on bullet motorcycle and that he was following Monu Thapa, Rajan and Billu and he was to act in case if anything went wrong. He stated that he was using mobile number 9873587047 and was in touch with Rajan on his mobile n umber 9811742113 and with Monu Thapa on his mobile number 9910670108 and with Dilshad on his mobile number 9999032369 in those days. He also disclosed that Rajan used to carry SIM cards and used to give the same to them and also advised them to change the SIM card frequently. The SIM cards were purchased from pickpockets and second hand mobile dealers and they ensured that it was never in their names. He received only Rs. 25,000/- as his share in the booty. He was arrested in the case and his PC remand was sought wherein he pointed out the place of incident.
1.9 During investigation, search for remaining accused Rajan and Billu @ Balwinder @ Punjabi was made and an information was received from PS K. M Pur that Rajan Singh and Beer Singh @ Baba were arrested u/s 41.1D/102 CrPC and they disclosed their role in the present robbery and they were being produced in the court on 15.07.2010. Rajan Singh and Beer Singh were interrogated after seeking permission from the Hon'ble Court. Rajan Singh confessed to the crime and he was arrested in the case at Patiala House Court. He disclosed that he hired his jail friends Billu @ Punjabi and Mintu @ Mustafa, who were serving sentence together in Tihar Jail when Monu Thapa had approached him for the job. He disclosed that Mahavir Singh Rawat and Dilshad had called a fat man who showed them the bike on which the money was to be carried. He also confirmed that he had assaulted the man with a knife at E Block, GK-II and Monu Thapa assaulted him with butt of desi katta before snatching money. He further disclosed that he got Rs.3 lacs as his share in the robbery and had spent the money. He also purchased a motorcycle in the name of his friend Beer Singh @ Babu from the looted money. He also confirmed that he was SC No. 1269/2016 FIR No.77/2010 Pages 9 of 40 using mobile number 9811742113 and was in touch with Monu Thapa on mobile number 9910670108 and with Mintu @ Mustafa on mobile number 9873587047 and with Mahavir Singh Rawat on his mobile number 99900027878. Rajan refused to participate in TIP proceedings before the Hon'ble Court. During the police custody remand, he pointed out the place of incident. The motorcycle number DL3SBG-7295 was also taken into possession from PS K. M. Pur. During PC remand, on his pointing out a desi katta was recovered from Jahanpanah Forest behind Narmada Apartment. The recovered katta was sent to FSL for examination vide RC No. 16/21/10 on 26.07.2010. The result of the same shall be filed through supplementary challan.
1.10 During investigation, Beer Singh @ Babu was also interrogated and he confessed that he was given Rs. 70,000/- of the looted money by his friend Rajan to purchase a motorcycle in his name after about a week from the day of robbery. He purchased motorcycle bearing no. DL3SBG 7295 from a showroom in Okhla from the looted money. He was arrested in the present case. He further disclosed that he had carried out many crimes along with Rajan Singh. However, he was directly not involved in carrying out the present robbery, but had committed the offence u/s 414 IPC for knowingly using the looted money for purchase of motorcycle. One of the accused Billu @ Balvinder @ Punjabi was still at large and efforts were made on to arrest him.
1.11 During investigation, TIP of the case property i.e. the looted bundles of currency notes was got conducted on 31.07.2010 and Dhiraj Mani Senwal, cashier of the Karni Communication Private Limited correctly identified the said bundles that were recovered from the accused persons. Accordingly, accused Inderjit Chaudhary, Mahavir Singh Rawat, Rilochan Dhyani, Dilshad and Karambir Thapa hatched a criminal conspiracy to carry out the robbery in the meeting held at Subhash Chand, SC No. 1269/2016 FIR No.77/2010 Pages 10 of 40 Giri Nagar, New Delhi. Thereafter, these conspirators roped in hit men/strike man Monu Thapa, Rajan Singh, Mintu @ Mustafa and Billu @ Balwinder for the job and eventually they were successful in committing robbery after voluntarily causing hurt to the complainant Kishan Lal. Thus, the perpetrators of hurt and conspirators are jointly concerned in commission of robbery as the perpetrators had associated themselves with the conspirators.
1.12 From the investigation, MLC of the complainant Kishan Lal, recovery of Rs.1,50,700/- and motorcycle, recovery of desi katta, refusal of TIP by hitmen Rajan Singh and Monu Thapa, TIP of case property, statement of witnesses u/s 161 CrPC, call detail record analysis of mobile phones, disclosure statements of accused persons, ample written and oral evidence have come on record to prosecute all nine accused persons. Hence, after completion of investigation, chargesheet was filed against the accused persons u/s 394/397/411/414/120B/34 IPC by the IO. 1.13 After filing of the chargesheet, the FSL report regarding the pistol was also filed by the IO.
2. CHARGE 2.1 On the basis of the chargesheet, charge u/s 120-B (1) IPC was framed against all nine accused persons. Further, charge u/s 414 IPC was framed against accused Bir Singh @ Babu whereas charge u/s 411 IPC was framed against accused Trilochan Dhyani, Dilshad, Monu Thapa, Mahavir Singh Rawat and Karamveer Thapa. Further charge was framed u/s 397/34 IPC against accused Monu Thapa and accused Rajan Singh. Charge was framed against accused Monu Thapa, Rajan Singh, Inderjeet Singh Chaudhary and Mahavir Singh Rawat u/s 394/34 IPC also. Further, charge u/s 25 Arms Act was also framed against accused Rajan Singh. All accused pleaded not guilty to the charges and claimed trial. Accordingly, prosecution was directed to lead SC No. 1269/2016 FIR No.77/2010 Pages 11 of 40 evidence in support of the chargesheet. However, during trial accused Monu Thapa expired and proceedings against him were abated vide order dated 24.03.2022. Accordingly, the present judgment is against the remaining eight accused persons.
3. PROSECUTION EVIDENCE 3.1 In support of its case, prosecution has examined 30 witnesses.
S. No. Name of the witnesses Nature of the evidence
PW-1 Madan Proposed Eye witness
PW-2 Kishan Lal Complainant/eye witness of the incident
PW-3 Anil Subscriber of mobile number
9999032369
PW-4 HC Rameshwar MHC(M) of the case
PW-5 Sukhdev Chauhan Proposed Eye witness
PW-6 HC Nahar Singh Duty Officer
PW-7 Constable Manoj Witness to the seizing of motorcycle and
clothes of complainant
PW-8 Dr. Dheeraj Jawada Doctor who examined the complainant
Kishan Lal
PW-9 Constable Birender Witness to seizing of complainant's
motorcycle
PW-10 SI Rajiv Kumar Witness to recording of statement of
injured Kishan Lal, to the seizing of
motorcycle and the blood stained clothes
of the injured Kishan Lal
SC No. 1269/2016
FIR No.77/2010 Pages 12 of 40
PW-11 ASI Vedveer Singh Witness to the arrest of accused
Inderjeet, Mahavir Singh Rawat,
Trilochan Dhyani, Dilshad, Karamvir
Thapa and Monu Thapa and the
recoveries effected from them.
PW-12 Dheeraj Mani Semwal Cashier in Karni Communication Pvt.
Ltd. who identified recovered currency
PW-13 HC S. N. Raj Witness to the arrest of accused Rajan
and Bir Singh
PW14 Ashok Kumar Record Keeper in Sheikh Sarai
Transport Authority
PW15 HC Lile Singh Witness to seizing of motorcycle no.
DL3SBG 7295 along with its keys by
the IO
PW16 Krishan Kumar Witness regarding usage of mobile
number 9873587047 by accused Rajan
PW17 R. K. Singh Nodal Officer, Bharti Airtel Ltd.
regarding record of mobile number
9910670108
PW18 Ram Hari Singh Nodal Officer, MTNL regarding record
of mobile no.9968214119
PW19 O. P. Baheti Director of Karni Communication Pvt.
Ltd.
PW20 SI Sunil Kumar Witness to arrest of accused Rajan and
Bir Singh u/s 41.1(d) CrPC
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FIR No.77/2010 Pages 13 of 40
PW21 Surendra Kumar Nodal Officer, Idea Cellular Ltd.
regarding record of phone
no.9990027878
PW22 Pawan Singh Nodal Officer, Idea Cellular Ltd.
regarding record of phone
no.9990027878
PW23 SI Bhushan Azad Witness to arrest of accused Mintu @
Mustafa vide kalendra u/s 41 CrPC
PW24 Sanjeev Kumar Judicial Officer, Patiala House Court
who conducted TIP of the case property
PW25 Rajeev Ranjan Nodal Officer, Tata Teleservices Ltd.
regarding record of phone number
9213988880
PW26 Inspector/ACP Sanjay Kumar IO of the case
Singh
PW27 Saurabh Agarwal Nodal Officer, Vodafone Mobile
Services Ltd. regarding record of phone
numbers 9999032369, 9873587047 and
9811742113
PW28 Raj Kumar Judicial Assistant, DSLSA, Patiala
House Courts who identified the
signatures of Sh. Gagandeep Singh,
Ld. MM on the TIP proceedings of
accused Rajan
PW29 Inspector D. P. Singh Police official who joined
investigation with IO of the case
PW30 P. K. Mishra Additional DCP, South East who
SC No. 1269/2016
FIR No.77/2010 Pages 14 of 40
accorded sanction u/s 39 of Arms
Act
3.2 The prosecution has exhibited following documents/objects in support of its case:-
No.of exhibit Nature of exhibit
Ex.PW2/A Statement of complainant
Ex.PW2/P-1 & Blood stained clothes of complainant
Ex.PW2/P-2
Ex.P-1 Photocopy of election card of PW3 Anil
Ex.PW4/A Entry in register no.19 at serial no. 682
regarding deposition of one motorcycle
bearing no.DL3SBF0719 and one parcel of
clothes in the malkhana
Ex.PW4/B & Entries in register no.19 at serial no.693
Ex.PW4/C regarding deposition of four pullandas on
11.05.2010 as well as deposition of one
pullanda on 14.05.2010, both having seal of
SKS in the malkhana
Ex.PW4/D & Entries in register no.19 at serial no.716
Ex.PW4/E regarding deposition of one motorcycle
bearing no. DL3SBG 7295 on 19.07.2010
and one sealed pullanda duly sealed with the
seal of SKS on 22.07.2010 in the malkhana
Ex.PW5/A Statement of PW5 Sukhdev Chauhan
recorded u/s 161 CrPC
Ex.PW6/A FIR
Ex.PW7/A Seizure memo of motorcycle of complainant
Ex.PW7/B Seizure memo of the clothes of complainant
Ex.PW8/A MLC of complainant Kishan Lal
Ex.PW9/A Seizure memo of complainant's motorcycle
Ex.PW10/A Endorsement made by PW10 SI Rajiv
Kumar on the statement of injured Kishan
Lal
Ex.PX Motorcycle bearing no.DL3SBF0719
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FIR No.77/2010 Pages 15 of 40
Ex.PW11/A, Arrest memo, personal search memo and
Ex.PW11/B disclosure statement of of accused Inderjeet
Ex.PW11/C
Ex.PW11/D, Arrest memo, personal search memo,
Ex.PW11/E, disclosure statement and seizure memo of
Ex.PW11/F Rs.50,700/- from accused Mahavir Singh
Ex.PW11/G Rawat
Ex.PW11/H, Arrest memo, personal search memo,
Ex.PW11/I, disclosure statement and seizure memo of
Ex.PW11/J Rs.52,000/- at the instance of accused
Ex.PW11/K Trilochan Dhyani
Ex.PW11/L, Arrest memo, personal search memo and
Ex.PW11/M disclosure statement of accused Dilshad and
Ex.PW11/N seizure memo of Rs. 10,200/- from said
Ex.PW11/S accused
Ex.PW11/O, Arrest memo, personal search memo,
Ex.PW11/P, disclosure statement and seizure memo of
Ex.PW11/Q Rs.10,600/- at the instance of accused
Ex.PW11/R Karamvir Thapa
Ex.PW11/T Pointing out memos of the place of incident
Ex.PW11/U prepared at the instance of accused Mahavir
and Dilshad
Ex.PW11/V, Arrest memo, personal search memo,
Ex.PW11/W, disclosure statement and seizure memo of
Ex.PW11/X, Rs.27,200/- and pointing out memo of place
Ex.PW11/Y of incident at the instance of accused Monu
Ex.PW11/Z Thapa
Ex.PW11/Z Pointing out memo prepared at the instance
of accused Mintu @ Mustafa
Ex.P3(colly), Case properties i.e. recovered currency notes
Ex.P4 (colly),
Ex.P5 (colly),
Ex.P6 (colly),
Ex.P7 (colly),
Ex.P8 (colly)
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FIR No.77/2010 Pages 16 of 40
ExPW13/A, Arrest memos, personal search memos,
Ex.PW13/B, disclosure statements of accused Rajan and
Ex.PW13/C, Beer Singh
Ex.PW13/D,
Ex.PW13/E,
Ex.PW13/F
Ex.PW13/G, Pointing out memo of the place from where
Ex.PW13/H, desi katta was recovered at the instance of
Ex.PW13/I accused Rajan, Sketch of the katta and
seizure memo thereof
Ex.PX (colly) Desi katta along with polythene
Ex.PW14/A Registration record of motorcycle bearing
no. DL3SBG 7295 in the name of accused
Bir Singh Thakur
Ex.PW15/A Seizure memo of motorcycle bearing no.
DL3SBG7295 along with its key
Ex.PW17/A, CDR/CAF etc. of mobile no.9910670108
Ex.PW17/B, with subscriber detail of applicant Sher
Ex.PW17/C, Bahadur s/o Mata Prasad
Ex.PW17/D &
Ex.PW17/E
Ex.PW17/F Certificate u/s 65B of Indian Evidence Act
regarding CDRs
Ex.PW18/A1 to Call details of mobile no.9968214119 for the
Ex.PW18/A8 period from 12.04.2010 to 17.04.2010
Ex.PW18/B Location chart of above mentioned mobile
number
Ex.PW18/C Certificate u/s 65B of Indian Evidence Act
regarding CDRs
Ex.PW18/D, CAF and related documents regarding
Ex.PW18/E subscriber Trilochan Dhyani
Ex.PW19/A Attendance register of Inderjeet Singh
Chaudhary
Ex.PW19/B1 to Salary statements of Inderjeet Singh
Ex.PW19/B4 Chaudhary from January, 2010 to April,
2010
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FIR No.77/2010 Pages 17 of 40
Ex.PW19/C Mobile Expenses Receipt of Inderjeet Singh
Chaudhary borne by the company Karni
Communication Private Limited
Ex.PW21/A & CAF and related documents of subscriber
Ex.PW21/B Mahavir Singh Rawat regarding mobile
number 9990027878
Ex.PW21/C Call details of above mentioned mobile
number for the period from 01.04.2010 to
30.04.2010
Ex.PW21/D Location chart showing the position of above
mentioned mobile phone
Ex.PW21/E Letter regarding handing over of customer
application form of applicant Mahavir Singh
Rawat along with relevant documents to
Inspector Sanjay Kumar Singh
Ex.PW21/F Certificate u/s 65B of Indian Evidence Act
regarding the above mentioned call details
Ex.PW22/A Certificate u/s 65B of Indian Evidence Act
regarding the above mentioned call details.
Ex.PW23/A, Arrest memo, personal search memo and
Ex.PW23/B, disclosure statement of accused Mintu @
Ex.PW23/C Mustafa
Ex.PW23/D (colly) Kalendra u/s 41 CrPC along with DD No.2 and 4 against the above mentioned accused Ex.PW24/A Application of the IO regarding TIP Ex.PW24/B TIP proceedings of the case property Ex.PW25/A Customer application form of applicant Inderjeet Singh regarding mobile no.
9213988880
Ex.PW25/B Call detail record of said mobile for the
period from 09.04.2010 to 16.04.2010
Ex.PW25/C Certificate u/s 65B of Indian Evidence Act
regarding call detail record
Ex.PW26/A Site plan of the place of occurrence at the
instance of the victim Kishan Lal
Ex.PW26/B and Arrest memo and disclosure memo of
Ex.PW26/C accused Mintu @ Mustafa
SC No. 1269/2016
FIR No.77/2010 Pages 18 of 40
Ex.PW26/D Pointing out memo of spot of occurrence at
the instance of accused Monu Thapa, Rajan
and Mintu @ Mustafa
Ex.PW26/E Disclosure statement of accused Rajan
Ex.PW27/A Customer application form of applicant
Shanta along with ID proof for obtaining
mobile no. 9811742113
Ex.PW27/B CDR details of the abovesaid number for the
period from 01.04.2010 to 09.05.2010
Ex.PW27/C Certificate u/s 65B of Indian Evidence Act
regarding the abovesaid CDR
Ex.PW27/D (colly) Customer application form alongwith related documents of applicant Anil for obtaining mobile number 9999032369 Ex.PW27/E (colly) CDR of abovesaid mobile number for the period from 01.04.2010 to 15.05.2010 Ex.PW27/F Certificate u/s 65B of Indian Evidence Act regarding CDR of above mentioned number Ex.PW27/G Customer application form along with ID proof of applicant Kishan for obtaining mobile number 9873587047 Ex.PW27/H (colly) CDR of above said number for the period from 01.01.2010 to 08.05.2010 Ex.PW27/I Certificate u/s 65B of Indian Evidence Act regarding CDR of abovesaid mobile number Ex.PW28/A TIP proceedings of accused Rajan conducted by Gagadeep Singh, Ld. MM, New Delhi Ex.PW30/A Sanction report u/s 39 of Arms Act 3.3 Though 30 witnesses have been examined by prosecution but the main witnesses of the case are:
i. PW-2 Kishan Lal, complainant/eye witness of the case, ii. PW-1 Madan, alleged eye witness of the case, iii. PW-5 Sukhdev Chauhan, alleged eye witness of the case, iv. PW-26 ACP Sanjay Kumar, IO of the case.SC No. 1269/2016
FIR No.77/2010 Pages 19 of 40 3.4 PW-2 Kishan Lal, complainant of the case deposed that he was working as Account Assistant/Cash Delivery man in Karni Tele Communication, Sant Nagar. On 15.04.2010 he was going to Corporation Bank, GK II from his office on his motorcycle to deposit sum of Rs.12,84,000/- kept in his bag. At about 12.40 pm when he reached near corner of E Block and M Block of GK II, suddenly one another motorcycle hit his motorcycle from back side. As a result thereof he fell down with his bag. Meantime, some person attacked on his face and hit him and also attacked on his head. PW2 made noise "MERA PAISA LOOT RAHA HAI MERA PAISA LOOT RAHA HAI BACHA" but nobody helped him. He caught hold his bag tightly and when he did not leave his bag, then one person caused injury on his left leg by knife and he was brutally beaten by the accused persons. Accused persons had suddenly attacked on his face and that is why he had not seen the accused persons.
When he was lying on the road, accused persons were beating him and he was not in a position to see them. Blood was oozing from his head and mouth and he received injuries on his eyes and his teeth were broken in the incident. Accused persons had snatched his bag with above said money i.e. sum of Rs. 12,84,000/- and succeeded to flee away from the spot. When he did not leave his bag, accused persons cut the handle of the bag with the help of knife and snatched the same. His clothes as well as shoes got stained with blood. He cried for help and asked the nearby people to help him as he could not see them. He asked them to make a telephone call at 100 number from his phone, but nobody came forward for his help and then after some time, he made a call at 100 number. Police gypsy came there and police took him to Trauma Center. His statement Ex.PW2/A was recorded by the IO at the Trauma Center and he put his signatures on the same and on the same day, he got discharged from the hospital in the evening time. Thereafter, he went to his house. He was called by the police officials of PS C R Park and he went to said PS along with his blood stained SC No. 1269/2016 FIR No.77/2010 Pages 20 of 40 clothes i.e. pant and shirt and handed over the same to the IO, who seized the same. His motorcycle bearing no. DL-S3-0719, exact number he do not remember, make Bajaj Discover was seized in this case and same was registered in his name. The above said motorcycle was received by him on superdari from the court.
During his testimony, PW2 identified the case property i.e. one shirt of light green and white check Ex.PW2/P-1 and a pant of grey colour having blood stains Ex.PW2/P-2. He deposed that he will not be able to identify the currency notes and the motorcycle on which the assailants came.
As the the witness was silent on material facts, he was duly cross examined by Ld. Additional PP for the State.
During his cross examination, he admitted that the currency notes were in denomination of Rs.1000/-, Rs.500/- and Rs.100/- and apart from money, the black colour bag also contained cheque books, official documents and documents of his motorcycle. He could not recollect whether he stated in his complaint that the three boys hit his motorcycle and that the shorter boy, who was on the motorcycle got down from the same and while beating him tried to snatch his black bag and on his resistance, the said boy took out a knife and hit on his left leg below the knee or that person also attacked on his head with the knife's handle 2-3 times. He denied the suggestion that in the meantime, another person who was on the motorcycle placed a pistol (country made) on his chest and told him to leave the bag or else he would kill him. He further could not recollect if the third person while sitting on the motorcycle was shouting "maar de saale ko goli". He even could do not recollect whether he had stated to the police in his complaint that the dark complexion boy was aged 35 to 36 years, height 5 feet 7 inches and other two boys were aged 25 to 26 years and were of medium built or that he could identify them if produced before him. He further SC No. 1269/2016 FIR No.77/2010 Pages 21 of 40 denied the suggestion that he was not identifying the accused persons as he was afraid of them.
PW2 was cross examined nil, by Ld. Counsels for the accused persons. 3.5 PW-1 Madan deposed that he do not remember the date or month but in the year 2010, in 4th or 5th month, he was going on his motorcycle to Bank situated at GK II from his office at C.R. Park. When he reached at turn of the G. K. Market, he saw a gathering of lot of persons. When he was crossing the same, one police man signalled him to stop. He stopped his motorcycle and said police man asked him to show the documents of his motorcycle. He requested the police official that relevant documents of the motorcycle were lying in the office and he told him that he can bring the same. Thereafter, police officials asked him to show his driving license. They even made inquiries from him if he had witnessed the incident. He told them that he had not witnessed the incident. Then they took him to the police station where SHO made inquiries from him. He told the SHO that he had not seen anything. He told them he had to go to his office. They threatened him to put behind the bars. He was again called in the evening. Accordingly, he went to PS in the evening wherein he was taken to PS Ambedkar Nagar and shown some photographs. He told them that he cannot identify the persons depicted in the photographs. They asked him to sign some papers, which he refused. He do not know if police had recorded his statement or not.
As the witness turned hostile to the case of prosecution, he was cross examined by Ld. Addl. PP for State.
During his cross examination, he denied that he had given statement u/s 161 CrPC dated 15.04.2010 Mark A from portion X to Y to the police. He admitted that on 15.04.2010 he was going towards G. K. by motorcycle and reached at the spot. He denied the suggestion that on 15.04.2010 he along with his friend Sukhdev SC No. 1269/2016 FIR No.77/2010 Pages 22 of 40 Chauhan was going towards E Block, GK II and at about 12.30 pm near E Block, GK II he saw a black colour motorcycle hit against one motorcyclist, due to which the motorcyclist fell down. Three persons were sitting on the black colour pulsar motorcycle. He denied the suggestion that one person aged about 30 or 32 years had tried to snatch the bag of the motorcyclist, who was lying on the road and when the said motorcyclist objected, he was stabbed with knife. He denied the suggestion that when he tried to intervene, one more person came and pointed out his country made pistol towards him and told him "BHAG JA NAHI TO GOLI MAAR DUNGA" . Thereafter, said person went near the injured and put the country made pistol on his chest and told him that if he did not leave the bag, said person will kill him. He denied the suggestion that one person who was sitting on the motorcycle, with ignition on, started crying loudly "GOLI MAAR DO GOLI MAAR DO" . He denied the suggestion that the above said persons snatched the bag of the injured and fled away from the spot. He further denied the suggestion that he along with Sukhdev took the injured to the nearest Private Nursing Home and he made a call to 100 number to the police by the phone of injured. He further denied the suggestion that during inquiry the name of injured was revealed as Kishan Lal and the bag which was snatched by the above said person were found containing about Rs.12 or 13 lacs. He further denied the suggestion that he had been won over by the accused persons and deposing falsely to save them. He further denied the suggestion that he had told the police that he can identify the accused persons. He denied the suggestion that he was deliberately not identifying the accused to save them. He denied the suggestion that on 15.04.2010 his statement Mark A was recorded by the IO.
PW-1 was cross examined nil, by Ld. Counsels for the accused persons. 3.6 PW5 Sukhdev Chauhan deposed that he do not recollect the exact date but it was 15th or 16th April, 2010. He along with his friend Madan were going to M SC No. 1269/2016 FIR No.77/2010 Pages 23 of 40 Block, Greater Kailash, on motorcycle in the afternoon at about 12.00/1.00 noon. He deposed that when they reached near Police Picket on their way to Greater Kailash, M. Block, the police officials stopped their motorcycle and his friend showed them the documents and thereafter he left him and went to his house. He deposed that no incident occurred in his presence nor he had seen anything. He had not given any statement before the police.
As the witness resiled from his earlier statement, he was cross examined by Ld. Addl. PP for the State.
During his cross examination by the prosecution, he denied the complete statement Ex.PW5/A from portion A to A made before the police. He denied the suggestion that he was deposing falsely and purposely not identifying the accused persons as he was afraid of them.
PW5 was cross examined nil, by Ld. Counsels for the accused persons. 3.7 PW26 Inspector Sanjay Kumar Singh deposed as per the contents of the chargesheet.
During his testimony, PW26 identified all the accused persons as well as case properties.
PW26 was duly cross examined by Ld. Counsels for accused persons.
4. EXAMINATION OF ACCUSED U/S 313 CrPC 4.1 After conclusion of prosecution evidence, accused were questioned u/s 313 CrPC regarding incriminating circumstances appearing against them. They stated that they are innocent and have been falsely implicated in the present case.
4.2 Accused Inderjeet Singh Chaudhary stated that all the allegations made against him are false. He is innocent and never worked with Karni Communication Private SC No. 1269/2016 FIR No.77/2010 Pages 24 of 40 Limited. He do not know PW19 O. P. Baheti. He stated that mobile no. 9213988880 was never issued in his name and he never used the same. He do not know anything about the salary statement or attendance register referred by PW19. He never gave any disclosure statement to the police admitting his guilt. He do not even know the other co accused of the present case. He was picked up by the police from road. 4.3 Accused Mahavir Singh Rawat stated that all the allegations against him are false. He had not given any disclosure statement to the police and no money was recovered from him or at his instance. The mobile number 9990027878 was never issued in his name nor he ever used it. He do not even know the other co accused persons.
4.4 Accused Trilochan Dhyani stated that all the allegations against him are false. No money was recovered from his possession as alleged. Mobile number 9968214119 was never issued in his name nor he used it. He did not even know any of the co-accused of the present case. He stated that he was using some other number and he was called by the police and picked from the road. He is innocent. 4.5 Accused Dilshad stated that all the allegations against him are false and nothing was recovered at his instance. He was not using any of the mobile numbers mentioned by the PWs. He is innocent.
4.6 Accused Karamveer Thapa stated that all the allegations against him are false. He used to reside at Naveen Tea Stall but no money was recovered from him. He had not given any disclosure statement to the police. He do not even know Sher Bahadur. He had no relation to any of the police numbers mentioned by the PWs. He do not even know the other co-accused of the present case.
4.7 Accused Mintu @ Mustafa stated that he had no role in the alleged incident. He is innocent and he was not using any of the phone numbers mentioned by the PWs.
SC No. 1269/2016FIR No.77/2010 Pages 25 of 40 4.8 Accused Rajan stated that he refused to participate in TIP since he was shown to the witness in the police station. He stated that he had not given any disclosure statement to the police and alleged motorcycle was not recovered from him. No arms or ammunition was recovered at his instance. He is innocent. 4.9 Accused Beer Singh stated that all the allegations against him are false. The motorcycle bearing no. DL3SBG7295 belonged to him. He do not even know the co- accused Rajan. It was purchased with cash amount of Rs.70,000/- but it was given by his mother from her committee. He had not given any disclosure statement to the police.
5. DEFENCE EVIDENCE 5.1 None of the accused persons chose to lead any defence evidence and, accordingly, matter was listed for final arguments.
6. ARGUMENTS 6.1 Thereafter, arguments of both parties were heard. Ld. Addl. PP for State has submitted that prosecution has proved recovery of robbed property from the accused persons in pursuant to their disclosure statements. Further, the call detail records prove that they were in touch with each other and the locations of their phones also corroborate the charge of criminal conspiracy against them. It is submitted that though eye witnesses have not supported the case of prosecution but cross examination of complainant shows that he has deposed falsely and has turned hostile to the case of prosecution deliberately. Accordingly, it is submitted that accused persons be convicted for the offences charged against them. 6.2 On the other hand, Ld. Counsels for accused have submitted that none of the eye witnesses have identified any of the accused as the perpetrators of the alleged SC No. 1269/2016 FIR No.77/2010 Pages 26 of 40 robbery and therefore, none of the accused can be convicted for the offence u/s 394/397/34 IPC. As far as the alleged recoveries are concerned, none of them are supported by any public witness. Further, there are inconsistencies in the statement of recovery witnesses also. Further, the recovered property is stated to be the robbed property on the premise that the bundles of currency notes were having the slip of Corporation Bank and seal of Karni Communication Private Limited. It is argued that said notes were not withdrawn from the Corporation Bank and rather were to be deposited in the said bank as per the case of prosecution. It is submitted that same shows that police officials in connivance with said company have planted the currency notes along with the slips of the banks so as to fabricate evidence and implicate the accused persons. Therefore, it is argued that it has not been proved beyond reasonable doubts that the alleged recovered property was indeed the robbed property. It is further submitted that in the absence of any ocular evidence of any eye witness and due to doubts in the alleged recovery, the prosecution has failed to prove any of the charges against the accused persons. Accordingly, it is prayed that all the accused are entitled to be acquitted.
7. POINTS FOR DETERMINATION 7.1 The relevant legal provisions applicable in the present case are reproduced herewith:
Section 394 IPC provides "if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 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 provides for minimum punishment for offence of robbery in certain cases i.e. "If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause SC No. 1269/2016 FIR No.77/2010 Pages 27 of 40 death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
Section 34 IPC provides "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."
Section 411 IPC provides "Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
Section 414 IPC provides "Whoever voluntarily assists in concealing or disposing of or making away with property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
Section 25 (1B)(a) Arms Act, 1959 provides that "Whoever acquires, has in his possession or carries any fire arms or ammunition in contravention of section 3 shall be punishable with imprisonment with a term which shall not be less than one year but which may extend to three years and shall also be liable to fine."
Section 120B IPC provides "Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
Criminal conspiracy is defined in section 120A of IPC. It provides "When two or more persons agree to do, or cause to be done,-- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof."
7.2 From the facts of the case, arguments of the parties and relevant provisions of law, the following points for determination arise:-
1. Whether the prosecution has been able to prove the offence u/s 394/397/34 IPC against the accused persons despite the eye witnesses turning hostile?
2. Whether the prosecution has been able to prove the recovery of the alleged amounts from the accused persons and has been able to link the same to the robbed property?SC No. 1269/2016
FIR No.77/2010 Pages 28 of 40
3. Whether the prosecution has led sufficient evidence to prove the offence of conspiracy against all or any of accused?
4. Whether the prosecution has been able to prove the recovery of firearm at the instance of accused Rajan?
5. Whether accused persons are liable to be convicted for alleged offences?
8. APPRECIATION OF EVIDENCE AND APPLICATION OF LAW 8.1 The star eye witness of the case is complainant PW2 Kishan Lal. However, he has deposed that assailants had suddenly attacked on his face so he had not seen them. He has deposed that when he was lying on the road and was being beaten, he was not in a position to see them. Though he has exhibited his complaint, however, in the said complaint, neither the names of the assailants have been mentioned nor their unique facial/physical description has been mentioned to pin-point the identity of the assailants. In the complaint, the age bracket, complexion, built of the assailants have been mentioned. However, same is not sufficient enough to conclude that the accused persons were the robbers. In his cross examination by the prosecution, he has given evasive answers by stating that he do not recollect having made the alleged statements in his complaint regarding the manner of incident. He even gave evasive answers by stating that he do not remember whether he stated the complexion, age, height and built of the robbers. It is hard to believe that a person will fail to remember such crucial facts if he had stated so to the police after such incident. However, the maximum the court can conclude is that the complainant has not deposed truthfully regarding the fact that he was not able to see the robbers, since some physical description of the robbers have been mentioned in the complaint. Despite the same, no further analogy can be drawn from the statement of PW2 and it cannot be concluded safely that any or which of the accused were the alleged robbers.
SC No. 1269/2016FIR No.77/2010 Pages 29 of 40 Besides the complainant, the other alleged eye-witnesses regarding the incident were PW1 Madan and PW5 Sukhdev Chauhan. However, even they have turned hostile to the case of prosecution. They were cross examined by Ld. Addl. PP for State after referring their 161 CrPC statements, however the same were denied by them. It is to be noted that Court cannot look into statement recorded u/s 161 CrPC by virtue of embargo u/s 162 CrPC. As per section 162 CrPC, the statements recorded u/s 161 CrPC cannot be looked into by the court except for the purpose of contradiction. However, another caveat is attached in said provision i.e., the statement u/s 161 CrPC has to be duly proved before it can be used for such contradiction. However, the prosecution has failed to prove said statements through the IO or any other witness. There is no other evidence to show that PW1 and PW5 have deposed falsely and they were the eye witness of the incident. Accordingly, nothing has come in the examination/cross examination of PW1 and PW5 qua any of accused persons.
In the given circumstances, prosecution has failed to prove the alleged offences u/s 394/397 IPC against any of the accused.
8.2 The prosecution has relied on the recovery of different amounts of currency from the accused persons and has alleged that same was a robbed property since it was identified by an official of Karni Communications through a TIP. As per prosecution, following amounts were recovered from the accused persons:-
a. Accused Mahavir Singh Rawat -Rs.50,700/-
b.Accused Trilochan Dhyani- Rs.52,000/-
c.Accused Karambir Thapa Rs,10,600/-
d.Accused Dilshad- Rs.10,200/-
e.Accused Monu Thapa- Rs.27,200/-
f. Accused Mintu @ Mustafa -Nil
SC No. 1269/2016
FIR No.77/2010 Pages 30 of 40
g. Accused Rajan-Nil
h.Accused Bir Singh @ Babu- Nil
i. Accused Inderjeet Singh Chaudhary @-Nil
Further, the prosecution has alleged that from his share of the loot, the accused Rajan purchased a motorcycle in the name of co accused Bir Singh @ Babu.
As far as the recoveries are concerned, it is not the case of prosecution that all the recoveries were effected at the same time from the same place. However, despite the fact that the recoveries were effected from different places at different times, there is not a single public witness to support the case of prosecution regarding said recoveries. Though the testimony of police witnesses cannot be disbelieved merely on the absence of the public witness, however, it has to be proved that no public witness was available or if the public witnesses were available, they did not join the proceedings despite efforts by the police officers. Further, the testimonies of police witnesses shall be free from doubts. However, the scrutiny of the testimony of the recovery witnesses i.e. PW11 ASI Vedveer, PW29 Inspector D. P. Singh and PW26 Inspector Sanjeev Kumar Singh show lack of such efforts and expose various other deficiencies.
PW11 ASI Vedveer has deposed that he do not remember as to who opened the door at accused Trilochan's flat. He deposed that public had gathered at the house of said accused when they reached there, however, he did not ask any of said public persons to join the proceedings. He failed to tell if IO asked any of them to join the proceedings. In regard to proceedings at the house of Mahavir, he deposed that in his presence the IO did not ask local resident to join the proceedings to be carried out at the house of Mahavir. He also failed to tell as to who opened the house of Mahavir from inside when they reached there. Further, he failed to tell if the almirah from which the recovery was effected at the house of Mahavir was locked or was open. In SC No. 1269/2016 FIR No.77/2010 Pages 31 of 40 regard to recovery at the instance of accused Karamvir, he deposed that the Naveen Tea Stall was open when they reached there but the IO did not examine the owner of said shop. He admitted that public persons were present there, however, IO did not ask any of them to join the investigation. He even failed to tell as to with which implement they dug out money at the instance of accused Karamvir. In regard to recovery at the house of Dilshad he deposed that one or two men were present in the house of Dilshad but PW11 did not know who they were. He also deposed that IO did not join those persons in the proceeding as witnesses.
Further, PW29 Inspector D. P. Singh was also witness to said recoveries. During his cross examination, in regard to the recovery from the flat of accused Trilochan he failed to tell as to whether the police had rung the bell of the flat or the door was already open. In regard to recovery from the house of accused Monu Thapa, he failed to tell whether the main gate of his jhuggi was found open when they reached there. He admitted that 2-3 family members of accused were present there but he failed to tell how many were males/females. He also failed to tell whether IO requested passersby and neighbours to join the investigation before effecting the recovery. He also failed to tell whether the iron box from which Rs.27,200/- were recovered was locked or not. In regard to recovery from residence of accused Dilshad, he failed to tell the number of floors of the house and whether the gate of the house was found open when police reached there. He admitted that 2-3 family members of accused were present there but he failed to tell how many were females/males and how they were related to accused. He also failed to tell whether IO requested passersby and neighbours to join the investigation before effecting such recovery. He failed to tell whether the iron box from which Rs.10,200/- was recovered was locked or not. In regard to recovery from accused Karambir Thapa, he deposed that Rs.10,700/- were recovered at the instance of said accused from a pit SC No. 1269/2016 FIR No.77/2010 Pages 32 of 40 behind the tea stall and one polythene containing said amount was taken out after digging the soil. However, he failed to tell as to what means were used to dig out the soil. In regard to recovery from the house of accused Mahavir, he failed to tell as to who opened the door of his house. He failed to tell the colour of the house or the direction of face of the house.
Further, even the IO PW26 ACP Sanjay Kumar Singh deposed regarding the recovery from accused Dilshad that no public person was joined in the investigation before recovery of the currency notes. He failed to tell how many floors were constructed at the house of Dilshad. Regarding recovery from accused Karamvir, he deposed that 4-5 public persons were present at the Naveen tea stall but none of them have joined the recovery proceedings. In regard to the recovery proceedings at the house of Monu Thapa, he deposed that no public person from the neighbourhood was joined nor called. Likewise, he deposed that no public person from the neighouring houses of accused Trilochan were joined in the investigation. He deposed that 4-5 persons were present at the Trilochan's house but he failed to tell how many were males/females. He also failed to tell if the almirah from which recovery was effected was locked or open and what was its colour or make. In regard to recovery from accused Mahavir, he deposed that no public person was joined in the investigation before going to Giri Nagar (where house of accused was located). He failed to tell the colour of the house of the accused Mahavir or the exact number of storeys in the house. He further deposed that no public person was joined during the proceedings at the house of accused Mahavir but stated that public persons were present in the adjoining house.
Proceeding further, even if it is presumed that the alleged amounts were recovered from the accused persons, it is still doubtful whether the same was robbed property or not. The prosecution has relied upon the TIP proceedings wherein one SC No. 1269/2016 FIR No.77/2010 Pages 33 of 40 official of the Karni Communication identified the currency. However, all the currency notes are alike and cannot be distinguished from each other unless their serial numbers are known. Admittedly the serial number of the looted property were not known. It is the case of prosecution that wads of currency notes recovered from accused persons were bearing the slip of Corporation Bank and were bearing seal of Karni Communication. Thus, apparently the identification of the currency was done on the basis of such bank slip and stamp of the company. However, it is hard to believe that the currency was recovered from the accused persons along with such bank slips with seal of Karni Communication. First and foremost, the complainant of the case who was working as Account Assistant/Cash Delivery has not mentioned such fact in his complaint and has only mentioned about the total currency and the denomination thereof. Had there been such identification of the notes, same would have been mentioned in his complaint itself. Even if said fact was omitted in the complaint/FIR, the complainant did not whisper about such bank slip/stamp of Karni Communication on the wads/bundles of currency notes being carried by him, during his testimony also. Secondly, it is the case of prosecution that complainant was taking said notes for depositing the same with Corporation Bank at GK II from his office. Generally, the bundles of 100 notes of a denomination issued by a bank are wrapped or stapled with the bank slip of the concerned bank. However, in the present case, it was the opposite i.e. the notes were to be deposited in the bank and the same were not being withdrawn from there. Accordingly, it is surprising as to why the notes being sent to the bank by a private entity/company shall be wrapped with the bank slip. It is not the case that such slip was a cash deposit slip which is required to be filled when the cash is deposited in the bank and that such slip was filled in advance from the office for depositing the amount in question. Thirdly, the recovery was not effected within few hours or within 2-3 days. Rather all the accused were SC No. 1269/2016 FIR No.77/2010 Pages 34 of 40 arrested at least 25 days from the incident and thereafter the alleged recoveries were effected. It does not appear plausible that accused would have retained the currency with such slips bearing the seal of the company for so long as it could have connected them to the alleged offence and they could have easily done away with the same. Accordingly, considering the overall facts and circumstances, the prosecution has failed to prove the recovery of robbed property from the accused persons.
The prosecution has also alleged that accused Rajan had purchased one motorcycle DL-3SBG-7295 from a showroom in Okhla in the name of co-accused Bir Singh by using the looted amount. However, besides the disclosure statement of accused persons, the prosecution has only proved the seizure memo of the alleged motorcycle. However, there is no other evidence to prove that whether such motorcycle was purchased using the money provided by accused Rajan. No person has been examined from the motorcycle agency selling the motorcycle. It has not been even proved whether the motorcycle was purchased on cash or otherwise. There is no witness to prove that said motorcycle was exclusively used by accused Rajan only. There is no witness to prove that said motorcycle was recovered from the exclusive possession of accused Rajan. Even IO/PW26 ACP Sanjay Kumar Singh has admitted in his cross examination that besides the disclosure statement no fact has come during investigation that same money was given as a payment for the said bike. He also deposed that he has not made any investigation regarding the fact whether accused Bir Singh was having capacity of buying a bike or not. Accordingly, prosecution has failed to prove that said motorcycle was a converted form of the robbed property.
8.3 Since prosecution has failed to prove physical involvement of any accused in the robbery and even the recovery of robbed property, the task of prosecution has become difficult to prove the charges of conspiracy also. As far as the offence of SC No. 1269/2016 FIR No.77/2010 Pages 35 of 40 conspiracy is concerned, there is no direct evidence to show that such conspiracy was hatched by the accused persons. There is no witness of the prosecution claiming that he saw, heard or was confided in by any accused that the accused persons had planned such conspiracy. There is no witness claiming that accused persons assembled together in any secret meeting. The prosecution has relied primarily upon the disclosure statements of the accused persons and have alleged that accused persons were in touch with each other on phone. As per prosecution, the accused were using the following phone numbers:-
a. Accused Inderjeet Singh Chaudhary @ Raju- 921398880 b. accused Mahavir Singh Rawat - 9990027878 c. Accused Trilochan Dhyani -9968214119 d. Accused Rajan -9811742113 e. Accused Monu Thapa -9910670108 f. Accused Mintu @ Mustafa-9873587047 g. Accused Dilshad-9999032319 A person can be said to be user of a particular mobile number if he is subscriber of the said phone number. In other cases, if the person is found in the possession of said SIM card/phone, it may be presumed that he is user of said phone number. In certain cases, if the subscribers of the phone numbers who were regularly called from a SIM number state that they received such calls from a particular person then such person may be presumed to be the user of such number.
In the present case, none of the accused persons were found in possession of any mobile phone/SIM card.
As far as the CAF/CDR is concerned, the prosecution has proved the CAF/CDR etc. of phone numbers 9811742113 and 9873587047. However, the subscriber of said phone numbers are shown to be Ms. Shanta and Mr. Kishan.SC No. 1269/2016
FIR No.77/2010 Pages 36 of 40 Hence, the alleged digital evidence does not prove that the said phone numbers were being used by accused Mintu and Rajan. Prosecution has failed to examine said subscriber Ms. Shanta. Though prosecution has examined PW16 Krishan Kumar regarding phone number 9873587047 and he has deposed that said mobile was taken from him by accused Rajan, however, it is not the case of prosecution that said phone was being used by Rajan. Rather the prosecution has claimed that it was being used by Mintu who was provided said phone by Rajan. However, same has been claimed on the basis of disclosure statements of accused persons and no phone with such SIM was recovered from accused Mintu.
Further, prosecution has proved the CAF/CDR details of the phone number 9910670108 allegedly used by Monu Thapa. However, said phone was not recovered from accused Monu Thapa nor he was subscriber of said mobile number. As per the evidence led through PW7, the subscriber of said number was one Sher Bahadur. However, said person was not examined by the prosecution to prove that said phone number was being used by accused Monu.
As far as the phone number 9999032319 allegedly used by accused Dilshad is concerned, the subscriber of said phone has been proved as one Anil. The prosecution has examined him as PW3. He has deposed that he never got issued said phone from the concerned mobile company. However, in the absence of the physical recovery of the SIM card from the accused Dilshad, it cannot be concluded that same was being used by him. Accordingly, prosecution has failed to prove that the alleged numbers were being used by accused Rajan, Mintu, Monu Thapa and Dilshad.
Nonetheless, the prosecution has proved that phone number 9213988880 was issued in the name of accused Inderjeet. Evidence has been led by examining Nodal Officer of the concerned mobile service provider as PW25 who proved the CAF and CDR details of said phone number. Even one office bearer of the Karni SC No. 1269/2016 FIR No.77/2010 Pages 37 of 40 Communication has been examined as PW19 to prove that said phone number was provided to said accused by the company. Further, the CDR/CAF of mobile no. 9990027878 has been proved through PW21 to be in the name of accused Mahavir. Likewise, the CDR/CAF of mobile number 9968214119 has been proved through PW18 to be in the name of accused Trilochan. Now we shall proceed further to examine whether said call details records and the locations thereof prove the allegations of conspiracy against said three accused.
Analysis of the CDRs of said three numbers show that there were ten calls between Mahavir and Trilochan on the date of incident from the morning till the time of incident and even subsequently eight calls were made. Further, four calls were made by accused Mahavir to accused Inderjeet on the date of incident. From the cell ID of the calls, the location of accused Mahvir Singh Rawat appear to be in the area around the office of complainant and the spot of incident. However, in the absence of any other supporting evidence, it cannot be concluded solely on the basis of said calls and their locations that said accused persons were acting in furtherance of a conspiracy to commit the alleged offence. Though the said calls/their locations do give rise to suspicion but said suspicion is not sufficient to prove the ingredients of section 120B IPC against said accused persons.
8.4 Prosecution has also alleged offence u/s 25 Arms Act against the accused Rajan. However, even said recovery of the alleged firearm is not free from doubt.
Firstly, there is no public witness to support the fact of recovery. Secondly, the testimonies of police witnesses regarding said recovery is seriously doubtful. Said recovery was allegedly effected from Jahapanah forest, Delhi. However, the recovery witness/PW29 Inspector D. P. Singh has deposed in his cross examination that he cannot tell how many gates are there of said forest. He failed to tell from which gate they entered said forest. He also deposed that the police team did not meet the SC No. 1269/2016 FIR No.77/2010 Pages 38 of 40 chowkidar of the forest. He deposed that there were public persons available on the way from police station to the forest and there were schools, banks and petrol pumps on the way. However, he failed to tell whether IO made any efforts to join any public person from any school, bank or petrol pump. He deposed that IO asked 2-3 public persons inside the forest to join investigation but they refused. However, he failed to tell whether IO recorded their names, numbers or not. He deposed that firearm was wrapped in two polythenes of blue and green colour. However, he failed to tell whether said polythenes were also seized with the firearm or not. Even the IO/PW26 ACP Sanjay Kumar Singh failed to tell the gate number from which they entered the forest. Interestingly, he deposed that there was chowkidar posted on the few gates of the forest but no chowkidar was called to join the investigation. As opposed to PW29 he deposed that no public witness was joined in the proceeding in the forest as none was present there. He also deposed that they remained there for one hour but no efforts were made by them to find any public person. Even the testimony of third recovery witness i.e. PW13 HC S. N. Raju is also doubtful. In his examination in chief, he identified the firearm produced by the MHC(M) as the one recovered from accused Rajan and exhibited it. However, in his cross examination, he deposed that firearm was recovered by accused under the soil near bushes but in the same breath he also deposed that he had not seen the firearm when it was got recovered by the accused as he was standing with accused Rajan just away from the place. Accordingly, it is doubtful whether genuine efforts were made to join any public witness and whether the recovery was effected under alleged circumstances.
9. CONCLUSION 9.1 Thus, in view of the above said discussion, all eight accused persons i.e. Inderjeet Singh Chaudhary, Mahavir Singh Rawat, Trilochan Dhyani, Dilshad, SC No. 1269/2016 FIR No.77/2010 Pages 39 of 40 Karambir Thapa, Mintu @ Mustafa, Rajan Singh and Bir Singh @ Babu are acquitted of all the charges framed against them.
Digitally signed by SACHIN(Announced in the Open Court on SACHIN SANGWAN
17th July, 2023) SANGWAN Date: 2023.07.17
16:30:06 +0530
(Sachin Sangwan)
Additional Sessions Judge (FTC-01): South East:
Saket District Court: New Delhi.
SC No. 1269/2016
FIR No.77/2010 Pages 40 of 40