Delhi District Court
) 397 Ipc Seven Years Rs.2 vs Unknown on 28 March, 2008
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IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE, FAST TRACK COURTS,
ROHINI : DELHI
SC No. 30/06
Date of institution of the case: 19/01/2006
Date for reservation of Order: 27/03/2008
Date of Conviction: 27/03/2008
State
Versus
1) Uma Shankar
Son of Sh. Laxman
R/o Village Kathnaiya,
PS Ramkola, Post Pakhriyal,
Distt. Khushi Nagar,
Gorakhpur, UP.
2) Raja Ram
S/o Sh. Syurya Maan
R/o H.No. C-402,
Kirti Nagar, Delhi.
3) Sagir Ahmed
S/o Sh. Amin Ansari
R/o H.No. WZ-565A,
Village- Naraina, Delhi
4) Uday Singh @ Uday Raj
S/o Sh.Chhaibar Ram,
R/o H.No. 1596, Krishi Kunj,
Pusa Campus, Delhi.
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5) Mohd. Ifthkar
S/o Sh. Mohd. Karim,
R/o H.No. D-132, J.J. Colony,
Inder Puri, Delhi.
FIR No. 519/2003
P.S. Patel Nagar
U/s 392, 393, 412, 120-B, 34 IPC
JUDGMENT
First the Facts In this case, Uma Shankar and Raja Ram accused have been facing trial for offences U/s. 120B read with Section 395 IPC, 395 and 3 and 4 of Explosive Substances Act; Mohd Ifthkar accused has been facing trial for offfences U/s. 120B read with Section 395 IPC and Section 5 of Explosive Substances Act; and Sagir Ahmed and Uday Singh accused have been facing trial for an offence u/s. 412 IPC.
In brief, case of prosecution is that Uma Shankar, Raja Ram and Mohd. Ifthkar accused hatched a criminal conspiracy alongwith their companions (since not arrested) to commit dacoity in respect of money of Jitender Singh which he used to withdraw from Jammu & Kashmir Bank, Loha -:3:- Mandi, Naraina, Delhi, and even used to bring the same to premises No. Y-180, Loha Mandi, Naraina, Delhi. In furtherance of the said conspiracy, Uma Shankar, Raja Ram and Mohd. Ifthkar and their companions (not arrested) robbed a sum of Rs. 19 Lacs from Jitender Singh on 01.11.2003, while the money was being carried to the office of said Jitender Singh by his employees Shiv Kumar, Maan Singh and Inderjit. At the time of commission of robbery, Uma Shankar and Raja Ram and their companions (not arrested) are stated to have exploded a bomb which was prepared by Mohd. Ifthkar (accused).
Sagir Ahmed (accused) is alleged to have dishonestly received a sum of Rs. 3500/- ( Thirty five hundred only) out of the stolen property, referred to above. Uday Singh @ Uday Raj (accused) is alleged to have dishonestly received a sum of Rs. 1,90,000/-(Rupees One lac and ninety thousand only) from Uma Shankar (accused) out of the aforesaid stolen property.
Case of prosecution is that Shiv Kumar complainant was working as attendant in the office of Sh. Jitender Singh at Y-180, Loha Mandi, Naraina, Delhi, who deals in iron. Jitender Singh used to withdraw money in bulk -:4:- from Jammu & Kashmir Bank, Naraina, Delhi. He used to bring money in a bag, keep the same in his car and drive the car to Loha Mandi, and park it in the parking of Loha Mandi in front of premises no. Y-7/Y-8 Loha Mandi. Whenever Jitender Singh used to bring money from the bank, he would make a telephone call to Shiv Kumar and other employees whereupon they used to reach main road and collect the bag containing money and then transport it to the office i.e. Y-180, Loha Mandi, Naraina, Delhi.
On 01/11/2003 at about 2 p.m., Jitender Singh made a telephonic call which was received by Inderjeet Singh. Thereupon his employees Inderjeet Singh, Shiv Kumar and Maan Singh reached in front of Y-9, Loha Mandi, Narain, Delhi, where they found Jitender Singh present in his car. Jitender Singh directed them to collect the bag containing Rs.19,00,000/- (nineteen lakhs) from the dicky of the car and take the same to the office i.e Y-180, Loha Mandi, Naraina, Delhi. Shiv Kumar then picked up the bag from the dicky of the car, whereas Inderjeet Singh lifted the tiffin carrier from the said car. Then they started climbing the stairs of premises Y-9, Loha Mandi, Naraina, so as to reach Y-180, Loha Mandi Naraina, Delhi.
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Shiv Kumar was ahead of Maan Singh and Inderjeet Singh . When Shiv Kumar covered half of the way, Uma Shankar and ¾ others accused came from the front side. Uma Shankar accused placed a gun at the chest of Shiv Kumar, hurled abuses and then directed him to handover the bag containing money. The accused also threatened Shiv Kumar with death in case he did not handover the bag containing Rs.19 lakhs. Thereafter Uma Shankar accused started snatching the bag but Shiv Kumar resisted. At that time, one of his companions exploded a bomb. As a result grip of Shiv Kumar on the bag became loose. Uma Shankar and his companions fled away towards Inder Puri with the bag containing currency notes.
Shiv Kumar telephonically informed Jitender Singh about robbery of the bag containing the currency notes. Police was informed. Police party headed by ASI Sudesh Pal reached the spot. at about 02:35 p.m. On reaching there they found many persons present there including Shiv Kumar, Maan Singh, Inderjeet Singh and Jitender Singh. Shiv Kumar made statement before the police which led to registration of the present case.
Crime team and dog squad were requisitioned. -:6:- After registration of this case, SI Suresh Kaushik, Constable Sanjeev Kumar reached the spot. ASI Sudesh Pal narrated to the SI entire facts. At the pointing out of PW Shiv Kumar, SI Suresh Kaushik prepared rough site plan of the place of occurrence.
From the spot, stones and iron nails were picked up. They were found smeared with some explosive substance. These were seized. Statements of other persons were also recorded. Police went in search accused persons but they were not traceable.
Police party reached near flyover in the area of Naraina and found a TSR No. DL-1RG-7066 lying parked there . It was seized. This TSR was of PW8 Raman Kumar Sethi. Raman Kumar had engaged one Subedar as driver in the TSR and the Subedar used to ply the same on rent basis. Said Subedar was resident of J-68/D, Bunderwali Khoi, Ramesh Nagar, Delhi, as tenant. Trilok Singh PW sold above referred to TSR to one Bunty, resident of Beriwala Bagh in the year 2000.
On 18/12/2003, police party headed by ASI Suresh Kaushik reached the area of Inder Puri. At about 11 a.m., they received secret information that the boy being -:7:- searched by the police was present near Jhuggies by the side of railway track, in the area of Naraina, and he could be apprehended in case raid was conducted. Police party headed by SI Suresh Kaushik was then led by the secret informer to the disclosed place and pointed out towards Uma Shankar. That is how he was apprehended and interrogated in connection with this case. Uma Shankar accused produced before the police a mobile phone make Nokia 2100 and a sum of Rs. 7850/- in cash. These were seized.
Uma Shankar accused made disclosure statement and in pursuance thereof led the police party headed by SI Suresh Kaushik to house no. 1556, Krishi Kunj, JJ Colony, Inder Puri, where Udai Raj accused was found present. He was interrogated. Uday Raj made disclosure statement. A sum of Rs. 1,30,000/- was produced by Uday Raj accused and the same was seized. Pass book and FDRs were also seized from his possession.
On the way when police party headed by SI Suresh Kaushik reached main road Loha Mandi, Naraina, secret informer informed to have seen Raja Ram accused soon before that, in front of Y-8. It was thereupon that SI Suresh Kaushik and others reached in front of Y-8 and -:8:- apprehended Raja Ram accused at the pointing out of secret informer. He too was arrested.
Raja Ram accused was interrogated and thereupon he made disclosure statement and in pursuance thereof lead to his jhuggi in the area of Jhuggi Chuna Bhati, Kirti Nagar. From that jhuggi Raja Ram took out two bundles of currency notes (each of Rs.5000/-) of the denomination of Rs.50/-. These currency notes were worth Rs.10,000/- and taken into possession.
At about 08:25 p.m., the police party headed by SI Suresh Kaushik reached jhuggi no. D-132, in the area of Inder Puri where Iftkar accused was found present. Inquiries were made from him. He made disclosure statement and then led to house no. WZ-565A, Naraina. At the said house no. WZ- 565A, Sagir Ahmad was found present. He also made disclosure statement and also produced currency notes worth Rs.2000/- which were seized.
On 21/12/2003, the police party headed by SI Suresh Kaushik reached Village Chuhil Babu in the company of Raja Ram accused. Raja Ram accused took out four bundles of currency notes which were seized.
On 08/1/2004 Mrs. Archana Sinha, learned -:9:- Judicial officer called Uma Shankar accused for test identification parade, but he refused to participate in the parade.
Uday Raj accused was having Saving bank account No. 17832 in Syndicate Bank, Branch Pusa Campus, Delhi. As per entries in the statement of account, on 05.11.03 and 06.11.03, a sum of Rs. 10,000/- each was deposited in this account. On 06.11.2003, Uday Raj accused got prepared two FDRs each of Rs. 5000/-, in the name of Ram Yadav and Ravi Yadav, his minor sons.
Sealed parcels were sent to CFSL for analysis. Reports were received. Sh. Kewal Singh, the then Deputy Commissioner of Police (HQ) accorded sanction for prosecution of Uma Shankar accused and for prosecution of Raja Ram, Ifthkar, Uday Singh and Sagir Ahmed accused for the offences U/s. 3 & 5 of Explosive Substances Act.
On completion of investigation challan was put in court.
Copies of documents relied on by the prosecution were supplied to the accused persons in compliance with provisions of Section 207 CrPC.
-:10:-Charge Prima facie case having been made out, vide order dated 18.08.2004, Mr. R.K. Yadav, learned Additional Sessions Judge, Delhi, framed charge against the accused persons,namely, Uma Shankar, Raja Ram and Mohd. Ifthkar for offences U/s. 120B read with Section 395 IPC; against Uma Shankar and Raja Ram for offences U/s. 395 IPC and 3 & 4 of Explosive Substances Act; against accused Sagir Ahmed and Uday Singh @ Uday Raj for an offence U/s. 412 IPC; and against Mohd. Ifthkar for an offence u/s. 5 of Explosive Substances Act.
Since the accused persons pleaded not guilty and claimed trial, prosecution was called upon to lead evidence. Prosecution Evidence In order to prove its case, prosecution examined following 17 witnesses in addition to tendering into evidence report dated 30.04.2004 received from CFSL:
PW1 Shiv Kumar is one of the employees of Jitender Singh, who is stated to have reached in front of premises No. Y-9, Loha Mandi, Naraina, Delhi, on 01.11.2003 at about 2.00 p.m. to collect the bag containing money withdrawn by Jitender Singh, the owner, from Jammu & -:11:- Kashmir Bank, Naraina Branch, Delhi. He also deposed about the manner in which the occurrence took place and that Uma Shankar (accused) placed a gun against his chest and snatched the bag containing currency notes from him, while one of his associates exploded a bomb. The witness then proved his statement Ex. PW1/A made before the police.
PW2 Inderjit is another employee of Jitender Singh. He has also been examined to prove the manner in which the occurrence took place and that Uma Shankar (accused) was one of the 3/4 robbers, who snatched the bag from the hands of PW Shiv Kumar.
PW6 Jitender Singh is the victim who was dealing in iron and steel and was running his business in premises No. Y-180/4, Loha Mandi, Naraina, Delhi. He has deposed about withdrawal of a sum of Rs. 19 Lacs from Jammu & kashmir Bank, Naraina Branch, Delhi, on 01.11.2003, about his arrival at Loha Mandi, Naraina, Delhi, with the money contained in a bag kept in his car, and the manner in which his three employees Shiv Kumar, Maan Singh and Inderjit reached there. He also deposed about receipt of a telephonic call from Shiv Kumar that the bag containing the money had been snatched. He also deposed to have reached the place -:12:- where the bag was stolen and the manner in which the matter was reported to the police. He also identified the case property i.e. the currency notes.
PW4 Smt. Shashi Rani has deposed that one Subedar occupied one of her rooms in her house, as a tenant, and that he lived there for two months, and further that he used to drive a three wheeler . She also deposed that the Subedar moved out of the tenanted accommodation clandestinely on 01.11.2003.
PW5 Sh. Sunil Kumar has deposed that one Subedar hired three wheeler scooter No. DL-1RG-7066 from Raman Sethi and that said Subedar was resident of jhuggies of Block No.2, in the area of Kirti Nagar.
PW8 Sh. Raman Kumar Sethi has been examined to prove that he had engaged one Subedar driver on his TSR No. DL-1RG-7066.
PW3 Dr. A.K. Jha has been examined to prove medico legal examination of Raja Ram, Uday Singh @ Uday Raj, Uma Shankar, Sagir Ahmed and Mohd. Ifthkar on 18.12.2003.
PW12 Trilok Singh has deposed to have sold TSR No. 7066 to one Bunty of Beriwala Bagh, in the year 2000. -:13:-
PW10 Sh. K.I. Swamy has deposed about saving bank account of Uday Singh @ Uday Raj accused for the period from 05.11.2003 to 06.11.2003 maintained by him in Syndicate Bank, Branch Pusa Campus, Delhi.
PW15 Sh. Praveen Mohan, Manager of Jammu & Kashmir Bank, Naraina Branch, Delhi, has deposed in respect of account pertaining to V.K. Enterprises of Loha Mandi, M/S. R.N. Trading of Faridabad and of Manish Steel Suppliers of Rajouri Garden, Delhi, and proved copies of statements of accounts.
PW15 Ms. Archana Sinha, learned Judicial Officer, has been examined to prove that Uma Shankar accused refused to participate in test identification proceedings on 08.01.2004, when produced at Tihar jail.
PW16 Sh. Kewal Singh, Additional Commissioner of Police has deposed about sanction Ex. PW16/A accorded by him for prosecution of Uma Shankar, Raja Ram, Mohd. Ifthkar, Sagir Ahmed and Uday Singh @ Uday Raj accused for offences U/s. 3 & 5 of Explosive Substances Act.
PW7 HC Mumtaz Ali has deposed about recording of FIR of this case and also DD No. 12A.,arrest of accused and recoveries from their possession. -:14:-
PW9 Constable Sanjeev Kumar, PW11 Constable Balwan Singh, PW13 ASI Sudesh Pal and PW17 Inspector Suresh Kaushik have deposed about the investigation part of the prosecution story.
Defence Plea When examined U/s. 313 CrPC, the accused persons denied all the incriminating circumstances appearing in evidence against them and claimed false implication.
In defence, Uma Shankar accused has examined DW1 Dr. M.P. Arora and DW2 Dr. Punit Chaudhary to prove that because of physical disability he could not commit any such crime.
Arguments heard. File perused.
Discussion Prompt reporting of matter to police Dacoity is stated to have been committed on 01.11.2003 at about 2 p.m., in the gallery of Y-9, Loha Mandi, Naraina, Delhi. A sum of Rs. 19 Lacs was taken away, while committing dacoity, according to PW6 Jitender Singh. Present case was registered on the statement made by Shiv Kumar, an employee of Jitender Singh, who was running his business at Y-180, Loha Mandi, Naraina, Delhi. Case was -:15:- registered without any delay on the basis of ruqqa sent from the spot at 4.35 p.m., vide FIR Ex. PW7/B. Withdrawal of money by Jitender Singh from Jammu & Kashmir Bank on 1.11.2003 Learned Addl. PP has referred to the statement of PW15 Sh. Praveen Mohan, Manager of Jammu and Kashmir Bank, Naraina Branch, New Delhi, and submitted that withdrawal of a sum of Rs. 21,85,000/- ( Twenty one lacs eighty five thousand) on 01.11.2003 by Jitender Singh, stands duly proved.
On the other hand, learned defence counsel contended that from the statement of PW15, it does not stand established that this amount was withdrawn by Jitender Singh. It has also been submitted that there is discrepancy regarding the amount withdrawn, as according to Jitender Singh, a sum of Rs. 19 Lacs was withdrawn, whereas according to PW15, a sum of Rs. 21,85,000/- was withdrawn. So, it has been argued by learned defence counsel that prosecution case regarding withdrawal of any such amount by Jitender Singh, becomes doubtful.
According to PW6 Jitender Singh, who used to deal in iron and steel, and was running his business in -:16:- premises No. Y-180/4, Loha Mandi, Naraina, Delhi. On 01.11.2003, he withdrew money from Jammu & Kashmir Bank, Naraina Branch, New Delhi. Although in his statement made in court, PW6 did not specifically state the amount withdrawn from the bank, it is available from his statement that he kept in his car a sum of Rs. 19 Lacs and then reached in front of premises No. Y-8, Loha Mandi, Naraina, Delhi, but this money was robbed after the bag was collected by Shiv Kumar, his employee, from the dickey of the car, and he himself went to park the car in the nearby parking lot.
PW15 Praveen Mohan, Manager of Jammu & Kashmir Bank, Naraina Branch, New Delhi, has deposed from the statements of accounts of V.K. Enterprises, Y-247, first floor, Room No.5, Loha Mandi, Naraina Delhi; M/s. R.N. Trading, B-257, Nehru Garden, Faridabad and Manish Steel Suppliers, C-3/17, Rajouri Garden, Delhi. According to PW15, on 01.11.2003, a sum of Rs. 21,85,000/- was withdrawn from the three accounts of these concerns bearing No. 2055, 1994 and 1825 respectively. To support his version, the witness has proved on record copies of statements of accounts Ex. PW15/A, Ex. PW15/B and Ex. PW15/C. PW15 has also proved photocopies of bearer cheques Ex. PW15/D1 to Ex. -:17:- PW15/D10 on the basis of which a sum of Rs. 21, 85,000/- was withdrawn from the above referred to three accounts on 01.11.2003. It is true that PW15 deposed in his cross examination that he could not tell as to who withdrew this amount from the three accounts on 01.11.2003, and for this he has furnished explanation that it is difficult to identify the bearer. There is nothing on record to disbelieve the bank record proved by PW15.
From the above material proved on record by the prosecution, it stands established that Jitender Singh was carrying approximately Rs. 19 Lacs in his bag, when he started from Jammu & Kashmir Bank, Naraina Branch, New Delhi, and reached in front of Y-8, Loha Mandi, Naraina, Delhi. He might not calculated the total amount withdrawn on that date at the time he reported the matter to police, but the same does not adversely affect the case of prosecution regarding withdrawal of the amount.
Place of Occurrence:
According to PW6 Jitender Singh, on reaching in front of Y-8, Loha Mandi, Naraina, Delhi, he handed over his tiffin to his employee, Inderjit and asked other employee Shiv Kumar to take out the bag containing money from the dickey -:18:- of the car. Shiv Kumar took out the bag containing the money. According to PW6, thereafter, he took his car towards parking lot, which was at a distance of about 500 metres whereas his employees went upstairs towards premises No. Y-9, Loha Mandi, Naraina, Delhi, to reach the premises of his office. It is also in his statement that he was telephonically informed by Shiv Kumar that the bag containing money had been snatched. He reached the place of occurrence and found that there was smoke and that splinters in the form of pieces of glass and nails scattered there. There is nothing in the statement of PW6 to disbelieve his version in this regard.
Statement of PW6 finds corroboration from PW1 Shiv Kumar, complainant.
PW1 Shiv Kumar was serving as an Attendant in the Office of Jitender Singh. According to him, on 01.11.2003 at about 2 p.m., Jitender Singh made a telephonic call whereupon he accompanied by other employees,namely, Inderjit Singh and Maan Singh reached in front of Y-9, Loha Mandi, Naraina, Delhi, and as directed by Jitender Singh, lifted the bag from the dickey of the car whereas Inderjit lifted tiffin carrier and thereafter he and his colleagues started climbing the stairs of Y-9 to reach Y-180 i.e. the office of -:19:- Jitender Singh. It is in his statement that when they had covered half of the way in front of premises No. Y-9, five or six persons came from the front side and took away the bag. It is in his cross examination that his office was situated at a distance of 30 metres from the place of occurrence.
PW2 Inderjit has supported the statement of PW1 Shiv Kumar regarding the place of occurrence by stating that he, Shiv Kumar and Maan Singh started climbing stairs of Y- 8, so as to reach Y-180 and when they were to climb down the stairs of Y-8, three or four persons came from the side of Loha Mandi, Naraina, and took away the bag. There is nothing in the cross examination of PW2 to doubt his testimony regarding the place of occurrence.
Case of prosecution is that immediately after receipt of the information regarding commission of dacoity, ASI Sudesh Pal reached the spot. ASI Sudesh Pal was given copy of DD No. 12A Ex. PW7/C. This DD entry was recorded at PS Patel Nagar at 2.34 p.m. SI Suresh Kaushik has proved rough site plan Ex. PW17/A depicting the place of occurrence. The version narrated by PW1 Shiv Kumar and PW2 Inderjit finds corroboration from the site plan Ex. PW17/A. -:20:- From the evidence led by the prosecution, it stands established that the occurrence took place in the gallery of Y-9, Loha Mandi, Naraina, Delhi and I do not find any merit in the contention of learned defence counsel that prosecution has failed to pinpoint the place of occurrence. How many persons were involved in committing the crime in the gallery of Y 9:
As per prosecution version, Shiv Kumar was holding the bag containing the currency notes. According to PW1 Shiv Kumar, when he and his colleagues Inderjit Singh and Maan Singh climbed the stairs of premises of Y-9, Loha Mandi, five or six persons came from the front side. According to PW2 Inderjit, at that time, three or four persons came from the side of Loha Mandi, Naraina, Delhi, when they were to climb down the stairs of Y-8.
According to PW1 Shiv Kumar, one of the assailants was having a gun which he placed against his chest. He further stated that the assailant hurled abuses at him and directed him to hand over the bag. He was criminally intimidated that he would be killed in case he did not hand over the bag. That assailant then started snatching the bag, but he (PW6) resisted. At that time, one of the associates of -:21:- the aforesaid person exploded a bomb, as a result whereof his grip on the bag became loosened and the robbers went away with the bag.
PW2 Inderjit has also made statement in consonance with the statement made by PW1 Shiv Kumar by stating that out of the 3/4 persons, one was armed with a pistol, and that he placed the pistol against the chest of Shiv Kumar and directed him to hand over the bag. PW2 further stated that one of the offenders exploded a bomb and that the assailants then snatched away the bag containing the money from Shiv Kumar and ran towards the road in front of Y-8, Loha Mandi, Naraina, Delhi.
Even in his statement Ex.PW1/A made by Shiv Kumar before the police immediately after the occurrence, it stands recorded that a boy, aged about 20/25 years, with 5 feet 4 inches height and having wheatish complexion came to him and directed that he should deliver the bag to him. The aforesaid boy then started snatching the bag from him, but he resisted. At the same time, one of his companions exploded an explosive as a result whereof there was smoke in the gallery and the assailants managed to escape with the bag containing money. In that statement, PW Shiv Kumar stated -:22:- that there were three boys who ran away with the bag.
From the material available on record, it appears that although according to PW1 and PW2 there were more than ¾ persons involved in commission of the crime, it cannot be said with certainty that they were five in number, particularly when they have narrated the role played by two of them and had the opportunity to see atleast two of them attentively.
Identity of the robbers So far as identity of the accused is concerned, according to PW1 Shiv Kumar, accused Uma Shankar had placed a gun against his chest and snatched away the bag from his hand. While stating so in court, the witness pointed out towards Uma Shankar accused, though without naming him. In his cross examination, PW Shiv Kumar denied to have identified Uma Shankar, as tutored by the police or that he could not identify the culprits. The witness further denied that he had wrongfully identified Uma Shankar as the culprit in place of real culprits.
It was for Uma Shankar accused to prove on record that he has been substituted for any such culprit. -:23:- However, there is nothing on record to suggest that PW1 Shiv Kumar falsely deposed regarding identification of Uma Shankar accused as the assailant who snatched the bag containing currency notes from him, at the point of weapon. The explosive was used when Shiv Kumar resisted. The explosive led to smoke only after Shiv Kumar had refused to part with the bag. The circumstances reveal that before the explosion, Shiv Kumar and Inderjit had ample opportunity to see the person, who was trying to snatch away the bag containing the currency notes. There is nothing on record to suggest that Shiv Kumar or Inderjit or their employer Jitender Singh was having any enmity with Uma Shankar accused, so as to falsely implicate him in a case like the present one.
Statement of PW2 Inderjit lends complete corroboration to the statement of PW1 so far as identity of Uma Shankar accused is concerned.
According to PW2, it was Uma Shankar accused, who snatched the bag from the hands of Shiv Kumar. He categorically stated that he had seen Uma Shankar accused grappling with Shiv Kumar, while snatching the bag containing money. Presence of PW Inderjit and Shiv Kumar on the given date, time and place stands fully established. -:24:- Uma Shankar refused to participate in Test Identification Parade It is case of prosecution that investigating officer filed applications for holding of test identification parade in respect of Uma Shankar accused. The applications are Ex. PW14/C and Ex. PW14/D. According to PW14, the learned Judicial Officer, application was moved by SI Suresh Kaushik before learned Link MM on 18.12.2003. On 08.01.2004, Uma Shankar accused was produced before the learned Metropolitan Magistrate at Tihar Jail, but he refused to participate in test identification proceedings, although he was explained that an adverse inference might be drawn against him for refusal to participate in the test identification proceedings. In this regard, proceedings Ex. PW14/A have been duly proved.
Uma Shankar accused has not led any evidence to justify his refusal to participate in the test identification proceedings. The accused made statement before learned Judicial Officer refusing to participate in the parade on the ground that he was working with the owner of the shop in Loha Mandi. However, there is nothing in his statement to suggest as to who was his employer and as to what led him to -:25:- refuse participation in the parade.
Therefore, an adverse inference has to be drawn against him from his refusal to participate in the test identification proceedings that had he participated in the proceedings, PW Shiv Kumar, Maan Singh and Inderjit, who went to Tihar Jail on 01.08.2004, would have identified him as one of the culprits.
Defence plea of Uma Shankar Uma Shankar accused has led defence evidence by examining DW1 Dr. M.P. Arora and DW2 Dr. Punit Chaudhary to prove that in the year 2003, his health would not permit him to commit any such crime. According to DW1 Dr. M.P. Arora, as per admission ticket Ex. DW1/A, one Shankar came to Dr. Ram Manohar Lohia Hospital with history of pain in abdomen and constipation for the last seven days prior to his admission. On examination, Dr. Rahul, who attended said Shankar, observed tenderness in the abdomen of the patient amd that there was guarding and rigidity. Further according to DW1, the case was investigated and treatment was started. X-ray of abdomen of said Shankar revealed free gas under diaphram which confirmed the diagnosis of perforation. Accordingly, said patient was -:26:- operated on 10.04.2003. Second operation of the patient was conducted on 17.04.2003 and a loop of intestine was brought out as the patient developed some complications after the operation. Further according to DW1, as per medical record Ex. DW1/B, recovery of the patient was slow but ultimately he was discharged from the hospital on 31.05.2003.
It is in cross examination of DW1 that at the time the patient was discharged from the hospital, he could move and walk properly.
DW2 Dr. Punit Chaudhary is from Kapoor Medical Centre, Naraina, Delhi. According to him, on 04.06./2003, patient,namely, Shankar was attended by Dr. Rajiv Gurmukhi, when he came to their hospital with history of surgical operation at RML hospital. The patient was admitted in the hospital and surgically operated upon on 05.06.2003 for Exploratory Laprotomy with illeostomy closure done under G.A and ultimately the patient was discharged from the hospital on 13.06.2003.
It is in cross examination of Dr. Punit Chaudhary that the patient must have taken about one month for full recovery of his health with effect from 05.06.2003. It is also in his cross examination that stitches were removed on -:27:- 17.06.2003. He further stated that the patient did not require any further surgical operation after the operation conducted at their hospital.
From the above medical evidence, it cannot be said that as on 01.11.2003 i.e. the day of commission of the present crime, Uma Shankar accused could not move or walk, so as to show that he was suffering from any disability making it impossible for him to commit any such crime. Therefore, I do not find any merit in the contention of learned defence counsel that Uma Shankar accused has been falsely implicated or wrongfully identified by Shiv Kumar and Inderjit as one of the culprits.
To connect the co-accused of Uma Shankar, prosecution has further relied on:
(i) recovery of a sum of Rs. 1,30,000/- from Uday Raj accused in addition to seizure of two FDRs, each worth Rs. 10,000/- (ten thousand) and his passbook on 18.12.2003;
(ii) recovery of Rs. 7,850/- (seven thousand and eight hundred fifty only) from Uma Shankar accused from his house on 18.12.2003;
(iii) recovery of Rs. 10,000/- (ten thousand) at the instance of Raja Ram accused from his jhuggi C-402, Chuna -:28:- Mandi, Kirti Nagar, Delhi, on 18.12.2003;
(iv) recovery of Rs. 45,000/- (forty five thousand) from the house of Raja Ram accused situated in Village Chuhil Babu, District Basti (U.P.) at his instance, on 21.12.2003 and;
(v) recovery of Rs. 2000/- (two thousand) from Sagir Ahmed accused from his tenanted room i.e. WZ-565A, Naraina, on 18.12.2003.
Companions of Uma Shankar So far as companions of Uma Shankar, who participated at the time of commission of the offence in the gallery of Y-9, Loha Mandi, Naraina, are concerned, neither Shiv Kumar nor Inderjit named any of the accused present in court as the culprits. It is in their statements that they could not see the companions of Uma Shankar accused, and as such, they were not in a position to identify his co-accused present in the dock.
Involvement of Mohd. Ifthkar accused So far as Mohd. Ifthkar accused is concerned, case of prosecution is that he manufactured the bomb using explosive and handed over the same to one Ehsaan and Doma, companions of Uma Shankar accused ( who could not -:29:- be arrested). However, prosecution has not led any cogent and convincing evidence that any such bomb or explosive substance was prepared by Mohd. Ifthkar and delivered to Doma or Ehsaan, companions of Uma Shankar. Mohd. Ifthkar was arrested on 18.12.2003. Furthermore, search of his jhuggi No. 132, D-Block, Inder Puri, did not lead to recovery of any explosive material.
Prosecution has relied on the disclosure statement of his co-accused Uma Shankar, Raja Ram, Uday Singh @ Uday Raj, Sagir Ahmed and that of Mohd. Ifthkar recorded on 18.12.2003. But there is nothing on record to suggest that anyone saw these accused persons conspiring with each other or with Mohd. Ifthkar at any point of time.
At the time of spot inspection, some pieces of glass and nails were picked up from the spot on 01.11.2003, turned into a parcel and sent to CFSL for analysis. Case of prosecution is that on analysis of the contents of the sample, the expert opined vide report Ex. PX that Physico chemical examination of parcel were found to be exploded countrymade bomb and confirmed the presence of explosive mixture based on Chlorate, Arsenic and Sulphide; that nails and small stones were used as missiles; and that the -:30:- exploded bomb was explosive substance.
It was for the prosecution to establish that the explosive bomb was prepared by Mohd. Ifthkar. However, prosecution has not led any evidence to suggest that the bomb which was exploded at the time of commission of the crime, was prepared by Mohd. Ifthkar. In absence thereof, prosecution cannot take any advantage of report Ex. PX received from CFSL, so as to connect Mohd. Ifthkar with commission of the present crime.
Recovery of TSR Case of prosecution is that Uma Shankar and his companions made good escape from the spot after snatching the bag containing money from Shiv Kumar, in a TSR which was sped away towards Naraina Bridge. While appearing in court as PW2 Shiv Kumar stated that after committing robbery the offenders ran away with the bag towards Inder Puri, Delhi However, in his cross examination he stated that he personally could not see the culprits running away because of smoke. According to the witness, when he came out of the building he learnt from the persons present on the road that culprits had gone towards Inder Puri in an auto rickshaw. So in this regard his evidence is inadmissible in evidence. -:31:- Investigating Officer did not join anyone else from the public to record their statements in this regard.
PW2 Inderjit also deposed to that culprits ran awar towards the road in front of premises No. Y-8, Loha Mandi, Delhi, after the bag was snatched. It is in his cross examination that he had seen the culprits running away towards the main road. But he could not see if they went towards Naraina or Shadipur Depot.
According to PW6 Jitender Singh on receipt of telephonic call from Shiv Kumar that bag containing money had been snatched, he left the car and rushed to the spot. At that time his employee shouted while pointing out towards someone, that offenders were running there. Since there was heavy traffic on the road, PW6 could not notice physical features of the persons pointed out by his employee. Then he returned to the spot and found crowd of people present there. Further according to PW6 some of the persons present there told him that offenders had run away with a scooter by the side of a Flyover whereas some of them were saying that they had run away in a three wheeler from underneath the Flyover.
The fact remains that neither PW1 nor PW2 or PW6 could notice the registration number of the TSR in which -:32:- the robbers are stated to have made good their escape after the robbery.
According to PW13 ASI Sudesh Pal, after registration of the case, SI Suresh Kaushik and Constable Sanjeev Kumar reached the spot and they were apprised of all the facts. PW13 further deposed that after seizure of stones and iron nails from the spot, all of them left in search of accused when they reached near Flyover in the area of Naraina. TSR No. DL-1RG-7066 was found lying parked and that it was seized vide memo Ex.PW9/A. Seizure memo would reveal that it bears attestation of ASI Sudesh Pal and Constable Sanjeev Kumar. PW17 Inspector Suresh Kaushik also deposed about seizure of TSR from near the Flyover on 01/11/2003, vide memo Ex.PW9/A. The factum of seizure of TSR stands established from the evidence led by the prosecution.
PW4 Smt. Shashi Rani, PW8 Sh. Raman Kumar Sethi and PW12 Trilok Singh have been examined in respect of TSR and that the said TSR was being driven by one Subedar who was living on rent in a jhuggi in the area of Kriti Nagar. However, prosecution could not apprehend the said Subedar despite efforts and he was found absconding. -:33:-
But there is nothing on record to suggest that any finger or foot print was lifted from the said TSR found lying abandoned near the Flyover so as to show that this very TSR was used in commission of the crime so as to connect the co accused of Uma Shankar with the crime.
Arrest of Uma Shankar accused and recoveries made from him Case of prosecution is that first of all Uma Shankar accused was arrested on 18/12/2003; that he made disclosure statement and then disclosed about participation of his co accused in the crime. In this regard, prosecution has examined PW11 Constable Balwan Singh, PW13 ASI Sudesh Pal and PW17 Inspector Suresh Kaushik and the documentary evidence in the shape of arrest memo Ex.PW11/A, personal search memo Ex.PW11/B and disclosure statement Ex.PW11/C. PW17 Inspector Suresh Kaushik deposed that when Mohd. Javed @ Subedar was found absconding he and other members of raiding party returned to Delhi. Local inquiries were made about the occurrence and associates of Mohd. Javed @ Subedar. Inquiries revealed involvement of -:34:- Raja Ram, Uma Shankar, Doma and others in commission of the crime. He further deposed to have taken steps to trace out Uma Shankar and Raja Ram, who were not traceable. In December, 2003, he and other members of the police reached native place of Uma Shankar in Uttar Pradesh and returned to Delhi on 17/12/2007. Inquiries made at the villages of Uma Shankar and Raja Ram revealed that both of them had visited their villages, but then left for Delhi.
It is further in the statement of PW17 Inspector Suresh Kaushik that on 18/12/2003 he alongwith SI Sudesh Pal and others, while present in the area of Inderpuri in connection with investigation of this case received secret information about presence of Uma Shankar near the Jhuggi by the side of Railway Track in the area of Naraina. The witness further stated that he tried to associate 3/4 persons from the public but they did not join. On reaching the disclosed place in the company of the secret informer they found Uma Shankar present by the side of Railway Track near the jhuggies and as such Uma Shankar accused was apprehended. The witness then deposed about disclosure statement made by Uma Shankar and that he produced Rs.7850/- in cash and a mobile phone make Nokia while -:35:- stating that he had purchased the mobile phone in the name of his friend Uday Singh @ Uday Raj with the amount of booty which had fallen to his share. The cash and the mobile phone were seized vide memo Ex.PW13/A and PW13/B. The witness then identified currency notes Ex.P5/1 to 25 and Ex.P6/1 to P6/107 and the mobile phone Ex.P8.
It is in cross examination of PW13 that Uma Shankar accused was arrested on 18/12/2003 at about 11:30 a.m. This version narrated by PW17 finds corroboration from the arrest memo Ex.PW11/A and personal search memo Ex.PW11/B prepared by the witness on 18/12/2003 in presence of Head Constable Rajender Singh and Constable Balwan Singh. PW11 Constable Balwan Singh has deposed about arrest of Uma Shankar accused from near the Railway Track in the area of Loha Mandi, Naraina, on 18/12/2003 on the basis of secret information.
PW13 ASI Sudesh Pal has also deposed about receipt of secret information about presence of Uma Shankar near Jhuggi by the side of Railway Track in the area of Naraina and that it was at the pointing out of secret informer that Uma Shankar accused was apprehended and interrogated.
-:36:-
It is also in the statements of PW11 Constable Balwan Singh and PW13 ASI Sudesh Pal that Uma Shankar accused disclosed about his involvement and involvement of his companions and that the disclosure statement Ex.PW11/C made by him. They further deposed about recovery of a sum of Rs. 7850/- (Seven thousand eight hundred fifty only) from Uma Shankar accused and a mobile phone make Nokia from Uma Shankar accused in pursuance of his disclosure statement. Recovery memo Ex.PW13/B prepared by Inspector Suresh Kaushik bears attestation of ASI Sudesh Pal. Contents of Ex.PW13/B would reveal that Uma Shankar accused led to a jhuggi by the side of a temple and got recovered a sum of Rs. 7850/-.
The other recovery memo Ex.PW13/A is in respect of recovery of mobile phone from Uma Shankar accused. As per contents of recovery memo Ex.PW13/A the mobile phone was taken out by the accused Uma Shankar accused from pocket of his pant.
On the other hand Uma Shankar accused has come forward with the plea that he was picked up by the police on 16/12/2007 at about 7 a.m. from Platform No.12 of New Delhi Railway Station and that at that time he was found -:37:- in possession of Rs.7850/- and a mobile phone. Accused Uma Shankar has failed to lead any evidence to prove his arrest from New Delhi Railway Station. It was for the prosecution to establish that the currency notes recovered from him were part of stolen property and that mobile phone was purchased by him with the amount which is stated to have fallen to his share. In respect of mobile phone Investigating Officer could further interrogate Uma Shankar as to from where he had purchased the mobile phone and on which date. However, there is nothing on record to suggest that Investigation Officer tried to investigate as to from where and on which date this mobile phone was purchased by Uma Shankar accused so as to prove that it was purchased with any amount which is stated to have fallen to his share after the robbery. Case of prosecution is that a sum of Rs.3,80,000/- fell to the share of Uma Shankar. But during investigation no step appeared to have taken to investigate as to how only a sum of Rs.7,850/- was found in possession of Uma Shankar accused and as to where did he spent the balance amount. There is no convincing evidence that Rs.7850/- form part of case property robbed on 01/11/2003.
Although this court has not accepted the case of -:38:- prosecution that a sum of Rs.7850/- forms part of the case property and that the mobile phone was purchased with any amount said to have fallen to his share, this does not mean that this court has doubted the prosecution version regarding participation of Uma Shankar in commission of the robbery. Arrest of Uday Raj @ Uday Singh accused and Recovery of Rs.1,30,000/- from him at the instance of Uma Shankar Case of prosecution is that Uma Shankar disclosed about involvment of Uday Raj @ Uday Singh accused and that he had kept with him a sum of Rs.1,90,000/- (one lakh ninety thousand only) with him and that he could get the same recovered. In this regard, as noticed above, prosecution has proved making of disclosure statement Ex.PW11/C. According to PW11 Constable Balwan Singh, Uma Shankar accused led the police party to Krishi Kunj, Inder Puri, Delhi, and got arrested Uday Raj @ Uday Singh from there. In this regard memos Ex.PW11/D and PW11/E have been proved. Further according to PW11 Uday Singh made disclosure statement regarding his involvement by stating that a sum of Rs.1,90,000/- fell to his share; that a sum of Rs.1,30,000/- was lying with him; that he got prepared two FDRs each of Rs.5000/- and also deposited Rs.20,000/- in his -:39:- saving bank account and that he had spent the balance amount of Rs.30,000/-. PW11 Constable Balwan Singh then deposed that Uday Singh then got recovered a sum of Rs.1,30,000/- from Chuna Bhatti, Naraina. In this regard a recovery memo was prepared as further stated by PW11.
PW13 ASI Sudesh Pal is a witness to the recovery memo Ex.PW13/D prepared regarding recovery of Rs.1,30,000/- from the house of Uday Singh @ Uday Raj. He has also deposed about arrest of Uday Raj, his interrogation, making of disclosure statement Ex.PW13/C and recovery of Rs.1,30,000/- vide memo Ex.PW13/D. He has also proved memo Ex.PW11/D and PW11/E regarding arrest of Uday Raj accused. PW13 ASI Sudesh Pal further deposed about recovery of two FDRs Ex.PW10/B and PW10/C and Pass Book Ex.PW10/F vide memo Ex.PW13/E. PW17 Inspector Suresh Kaushik has also deposed about arrest of Uday Singh @ Uday Raj accused at the instance of Uma Shankar. Making of his disclosure statement Ex.PW13/C, preparation of arrest memo PW11/D and personal search memo Ex.PW11/E and also about recovery of Rs.1,30,000/- when produced by Uday Raj accused.
-:40:-
According to prosecution version, Uday Raj deposited in his account with Syndicate Bank Branch, Pusa Campus, Delhi, a sum of Rs.10,000/- on 05/11/2003 and similar sum of Rs.10,000/- on 06/11/2003 and that on 06/11/2003 he got prepared two FDRs each of Rs.5000/- in the name of his minor sons. It is true that Uday Singh @ Uday Raj deposited in his Account No.17832 a sum of Rs.20,000/- on 05/11/2003 and 06/11/2003 and also got prepared two FDRs each of Rs.5000/- in the name of his sons from the aforesaid amount of Rs.20,000/-, but in absence of any cogent and convincing evidence that this amount deposited by him with the bank formed part of the stolen property, this court comes to the conclusion that it is not safe to hold that Uday Singh shared the stolen property.
In view of the above discussion this court comes to the conclusion that prosecution has failed to substantiate the accusation levelled against Uday Raj @ Uday Singh accused.
Learned defence counsel contended that no reliance can be placed on the statements of the police officials regarding the alleged recoveries from Uday Raj @ Uday Singh accused at the instance of Uma Shankar, for want of -:41:- corroboration from independent source as the investigating officer did not join anyone from the locality to attest the recoveries, although, persons from the public were available.
House of Uday Raj @ Uday Singh accused is situated in Krishi Kunj, near JJ Colony, Inderpuri, Delhi. It is in the statement of PW13 ASI Sudesh Pal that investigation officer tried to associate persons from Krishi Kunj area but none came forward. It is in the statement of PW17 Inspector Suresh Kaushik that they left the house of Uday Singh @ Uday Raj at about 1 p.m. on 18/12/2003. According to him, on the way they tried to join persons from the locality but none joined. But it has appeared in his cross examination that on entering the house of Uday Singh they found ladies present there. It was duty of the investigating officer to associate atleast those two ladies found present at the house of Uday Singh @ Uday Raj. However, he did not join any of the two ladies during investigation or get any of the memos attested. They remained at the house of Uday Singh @ Uday Raj for an hour, as admitted by PW17. But he wants the court to believe that no one from the locality gathered near the house of Uday Singh @ Uday Raj. According to PW13 ASI Sudesh Pal, no one was found present at the house of Uday Raj @ Uday -:42:- Singh when they reached there. On the other hand, PW17 Inspector Suresh Kaushik has deposed about presence of two ladies at the house of Uday Raj @ Uday Singh accused. Surprisingly, PW11 Constable Balwan Singh displayed ignorance if any family member of Uday Raj @ Uday Singh was found present inside the house. He admits to have entered the house of Uday Singh. On the other hand, PW13 ASI Sudesh Pal deposed that he (PW13), Constable Baljeet and constable Balwan Singh stayed outside the house of Uday Raj for 15 minutes and that only Inspector Suresh Kaushik, Head Constable Mumtaz Ali and Head Constable Rajender Singh entered the house of Uday Raj @ Uday Singh. This version put forth by the prosecution in this regard becomes doubtful when the other two PWs namely PW11 Constable Balwan Singh and PW17 Inspector Suresh Kaushik have made statements in contradiction with the statement of the Investigating Officer.
According to PW11 Constable Balwan Singh, persons from the locality had gather at the spot. On the other hand PW17 Inspector Suresh Kaushik has come forward with the version that no one from the locality gathered outside the house of Uday Raj.
-:43:-
According to PW11 Constable Balwan Singh, the house of Uday Raj @ Uday Singh was a single story house. But according to PW17 house of Uday Raj @ Uday Singh was on the first floor.
PW7 Head Constable Mumtaz Ali was another member of the raiding party. He too has deposed about recovery of Rs.1,30,000/- from the house of Uday singh @ Uday Raj after Uma Shankar accused led the police party in the area of Krishi Kunj, Inderpuri, Delhi. It is in his cross examination that party reached the house of Uday Raj @ Uday Singh at about 01:30 p.m. Further according to the witness, he remained outside the house alongwith ASI Sudesh Pal. It is in his cross examination that house belonged to father in law and mother in law of Uday Raj but they were not present there and only wife of Uday Raj @ Uday Singh was present there. He further stated about presence of persons from the public in front of the house of Uday Singh @ Uday Raj. On the other hand as noticed above, Investigating Officer has denied that anyone from the public gathered in front of the house of Uday Singh.
A perusal of disclosure statement Ex.PW11/C stated to have been made by Uma Shankar would reveal that -:44:- it was to the effect that he had kept a sum of Rs.1,90,000/- with Uday Singh @ Uday Raj accused by way of entrustment. There is nothing in his disclosure statement that he distributed any sum, out of stolen property to Uday Singh @ Uday Raj by way of his share. Even otherwise, there is no evidence to suggest that Uday Singh @ Uday Raj took part in commission of the robbery on 01.11.2003. In such circumstances, it is not believable that Uma Shankar or any of his companions would have given such a huge amount to Uday Singh @ Uday Raj by way of his share.
If Uday Raj @ Uday Singh accused could deposit a sum of Rs.20,000/- in his account and out of that amount could get issued two FDRs each of Rs.5000/- in the name of his sons, he could also get the balance amount of Rs.1,30,000/- also deposited in his account or by way of fixed deposit in his name or in the name of his sons. But there is nothing on record to suggest that Uday Singh @ Uday Raj accused took any such step. From the material available on record, although no witness from the public was associated at the time of recovery of Rs.1,30,000/- (one lakh thirty thousand) from the house of Uday Singh @ Uday Raj, in view of the fact that prosecution has fully established making of -:45:- disclosure statement by Uma Shankar to the effect that he entrusted a sum of Rs.1,90,000/- to Uday Singh @ Uday Raj for safe custody, and in pursuance thereof led the police party to his house, recovery of Rs.1,30,000/- having wrappers of the Bank from the house of Uday Singh @ Uday Raj at the instance of Uma Shankar cannot be doubted simply because of non joining of a witness from the public. In the given facts and circumstances, when prosecution has not led any evidence of conspiracy between Uday Singh @ Uday Raj and Uma Shankar or any of his companions, simply from recovery of Rs.1,30,000/- from the house of Uday Singh @ Uday Raj , it cannot be said that he knew about commission of the robbery or that the amount entrusted to him by Uma Shankar was a stolen property. It appears that Uday Singh @ Uday Raj received the amount from Uma Shankar only by way of entrustment to him and for safe custody. Therefore, Uday Singh @ Uday Raj cannot be held liable for any of the offence.
Arrest of Sagir Ahmed and recoveries from him Case of prosecution is that on 18.12.2003, Sagir Ahmed accused was apprehended from WZ-565A, Naraina, on the basis of disclosure statement made by Uma Shankar -:46:- accused, and that he too made disclosure statement Ex. PW13/K that on 01.11.2003 when he reached his house, he found Uma Shankar and 4/5 others distributing money and at that time they asked him to stand outside the house and also undertook to pay him some money and that they paid a sum of Rs. 3500/-. Sagir Ahmed accused is stated to have produced a sum of Rs. 2000/- out of the amount of Rs. 3500/- paid to him.
In this regard, prosecution has examined PW7 HC Mumtaz Ali, PW13 ASI Sudesh Pal and PW17 Inspector Suresh Kaushik.
According to PW7 HC Mumtaz Ali, from the house of Mohd. Ifthkar accused, they reached the house of Sagir Ahmed accused in the area of Naraina where he was found present and where he made disclosure statement. Recovery memo Ex. PW13/L bears name of HC Mumtaz Ali and ASI Sudesh Pal as attesting witnesses. But PW7 did not depose about any such recovery. Had any recovery been made at the instance of and from the house of Sagir Ahmed, HC Mumtaz Ali would not have omitted to state about the same. This creates doubt in the version of of prosecution regarding any recovery of Rs. 2000/- from Sagir Ahmed on 18.12.2003. -:47:-
PW13 ASI Sudesh Pal deposed that from the house of Mohd. Ifthkar accused, they reached the house of Sagir Ahmed,who was found present there, and that Sagir Ahmed made disclosure statement Ex. PW13/L. The witness also deposed about recovery of Rs. 2000/-, when produced by Sagir Ahmed accused. It is in the cross examination of PW13 that they reached the house of Sagir Ahmed at about 10/10.15 p.m. and that IO requested persons from the surrounding houses to join the party but none came forward.
Learned defence counsel has contended that no reliance can be placed on the statements of the police witnesses in absence of corroboration from any independent source regarding making of any such disclosure statement or recovery of Rs. 2000/- from him.
PW17 Inspector Suresh Kaushik deposed that they reached the house of Sagir Ahmed at about 10.30 p.m. and found one lady also present there. According to PW17, some persons from the public gathered near the house of Sagir Ahmed but none of them joined the party. This version narrated by PW17 is in contradiction with the version narrated by PW13 ASI Sudesh Pal. According to PW13, the persons who were asked to join the party, were from the surrounding -:48:- houses whereas according to PW17, those persons were the persons who had gathered near the house. According to PW13, he did not notice any family member of Sagir Ahmed present at the house. Contrary to it, PW17 deposed that one lady was found present at the house of Sagir Ahmed accused.
It may be mentioned here that as per prosecution version, HC Mumtaz Ali was present at the time of recovery of Rs. 2000/- from Sagir Ahmed. But PW7 HC Mumtaz Ali stated in his cross examination that he remained outside the house of Sagir Ahmed. In case he remained outside the house, according to his version, recovery memo Ex. PW13/L could not be attested by him. However, memo Ex. PW13/L bears his attestation. This further creates doubt in the version of prosecution regarding recovery from the house of Sagir Ahmed, particularly when there is no corroboration from independent source and in view of the contradictions in the statements of the police officials.
Arrest of Raja Ram and recovery from his possession Case of prosecution is that Raja Ram accused was arrested on 18.12.2003; that he made disclosure statement Ex. PW13/G and got recovered Rs. 10,000/- from his jhuggi No. C-402, Chuna Bhatti, Kirti Nagar, Delhi, on 18.12.2003, in -:49:- presence of ASI Sudesh Pal, and thereafter on 21.12.2003, he got recovered Rs. 45,000/- from his house situated in Village Chuhil Babu, District Basti (U.P.), in presence of ASI Suesh Pal, HC Mumtaz Aliand Inspector Suresh Kaushik.
According to PW13 ASI Sudesh Pal, after arrest of Uday Raj @ Uday Singh and Uma Shankar accused on 18.12.2003, their party reached in front of Y-8 where secret informer pointed out towards Raja Ram accused and that is how, he was arrested and memos Ex. PW11/F and Ex. PW13/F were prepared. He further deposed that disclosure statement Ex. PW13/G was made by Raja Ram; that out of the amount of his share, some was lying at his jhuggi whereas the remaining was lying at his house in Village Chuhil Babu. It is also in his statement that Raja Ram accused then led them to C-405, Chuna Bhatti, Kirti Nagar, and took out two bundles of currency notes of the denomination of Rs. 50/- which were seized vide memo Ex. PW13/H. He also deposed about having accompanied SI Suresh Kaushik, HC Mumtaz Ali and Constable Balwan to Village Chuhil Babu on 21.12.2003 and recovered four bundles of 100 rupee currency notes and fifty 100 rupee currency notes which were seized vide memo Ex.
PW7/C.
-:50:-
PW17 Inspector Suresh Kaushik has also
deposed about arrest of Raja Ram accused on 18.12.2003, while he was roaming in the area of Loha Mandi, Naraina, preparation of memos Ex. PW11/F and 13/F, recording of his disclosure statement Ex. PW13/G and recovery of Rs. 10,000/- from his jhuggi No. C-402, vide memo Ex. PW13/H. The witness then deposed about his visit to Village Chuhil Babu on 21.12.2003 in the company of Raja Ram accused and recovery of Rs. 45,000/- from there. The currency notes were exhibited as Ex.P4/1 to 200 and Ex. P3/1 to 450.
As noticed above, case of prosecution is that PW11 Constable Balwan Singh and PW7 HC Mumtaz Ali were also members of the raiding party which recovered a sum of Rs. 10,000/- on 18.12.2003 and a sum of Rs. 45,000/- on 21.12.2003 from Raja Ram accused.
PW11 Constable Balwan Singh, while appearing in court, did not depose about any such recovery from Raja Ram accused on 18.12.2003 or on 21.12.2003. It was only when leading questions were put by Ld. Addl. PP after seeking permission from the court that he admitted to have stated before the police that Raja Ram accused got recovered Rs. 10,000/- in the shape of two bundles. Had any such -:51:- recovery been made from Raja Ram accused on 18.12.2003 in presence of Constable Balwan Singh, he would not have omitted to state so of his own without being put leading questions. The fact remains that PW11 Constable Balwan Singh nowhere deposed about recovery of Rs. 45,000/- at the instance of Raja Ram from Village Chuhil Babu.
PW7 HC Mumtaz Ali deposed about making of disclosure statement by Raja Ram accused and production of Rs. 10,000/- on 18.12.2003 and Rs. 45,000/- from his house at Chuhil Babu on 21.12.2003. But a perusal of memo Ex. PW13/H would reveal that it does not bear attestation of HC Mumtaz Ali.
It has come in evidence that persons from the public were available for being associated in the party but there is nothing on record to suggest that any effort was made by the IO to associate anyone from the public to authenticate any such recovery. Non-joining of witness from the public in the given fact and circumstances of the case, creates doubt in the version of prosecution regarding any such recovery of Rs. 10,000/- and Rs. 45,000/-.
It has been rightly contended by learned defence counsel that disclosure statement Ex. PW13/G stated to have -:52:- been made by Raja Ram accused does not bear any date of its recording and that it becomes doubtful, if on 18.12.2003, Raja Ram accused made any such disclosure statement.
Furthermore, there is nothing on record to suggest that the currency notes stated to have been recovered from Raja Ram were the same currency notes which were robbed from Shiv Kumar PW on 01.11.2003, so as to connect him with the commission of the present crime. Conclusion:
In view of the above discussion, this court comes to the conclusion that prosecution has failed to substantiate the accusation levelled against any of the accused except Uma Shankar accused. Keeping in view the allegations which have been established on record that on 01.11.2003 Uma Shankar accused was armed with a weapon at the time he did commit robbery by snatching away the bag containing Rs. 19 Lacs from Shiv Kumar, and that prosecution has not been able to establish that at the time of commission of the offence, Uma Shankar accused was accompanied by 2/3 others, he made himself liable for an offence U/s. 397 IPC. Since Uma Shankar accused kept a sum of Rs. 1,30,000/- ( one Lac and thirty thousand) which formed part of stolen property, with -:53:- Uday Singh @ Uday Raj accused by way of entrustment, he made himself liable for the offence u/s. 411 IPC. Therefore, I hold Uma Shankar accused guilty of the offences U/s. 397 and 411 IPC and convict him thereunder. However, there is nothing on record to attract the provisions of Section 4 & 5 of Explosive Substances Act so far as Uma Shankar accused is concerned. Therefore, he is acquitted of the offences under the Explosive Substances Act.
All other accused are acquitted in this case. Be put up tomorrow for hearing Uma Shankar accused on the point of sentence.
Announced in the open court
On: 27th of March, 2003 ( NARINDER KUMAR)
ADDL. SESSIONS JUDGE
FAST TRACK COURTS
ROHINI: DELHI
27/03/2008
-:54:-
IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE, FAST TRACK COURTS, ROHINI : DELHI SC No. 30/06 Date of institution of the case: 19/01/2006 Date of Sentence: 28/03/2008 State Versus
1) Uma Shankar Son of Sh. Laxman R/o Village Kathnaiya, PS Ramkola, Post Pakhriyal, Distt. Khushi Nagar, Gorakhpur, UP.
FIR No. 519/2003 P.S. Patel Nagar U/s 397 & 411 IPC ORDER ON SENTENCE 28.03.2008 Present. Convict Uma Shankar, with counsel.
I have heard the convict, his counsel and learned Addl. PP for the state on the point of sentence.
The convict has prayed for leniency submitting that he has been facing trial in this case since long.
File reveals that Uma Shankar has been facing -:55:- trial, while in custody with effect from 18.12.2003.
Keeping in view all the facts and circumstances, the manner in which the robbery of a sum of Rs. 19 Lacs was committed in broad daylight, I hereby sentence the convict as:
S.N Offence Substantiative Fine Sentence I.D of Imprisonment in Rs. payment of fine u/s.
(R.I.) (R.I.) 1) 397 IPC Seven Years Rs.20,000/- Six months 2) 411 IPC Three Years Rs.10,000/- Three months
Both the substantive sentences of imprisonment shall run concurrently. Benefit of provisions of section 428 CrPC is given to the convict.
Case property i.e. the currency notes be delivered to the rightful claimant and rest of the case property be destroyed in accordance with rules on expiry of period of appeal/revision, if none is preferred or subject to decision thereof.
Copy of this order as well of judgment be supplied to convict free of cost.
File be consigned to record room.
Announced in the open court On: 28th of March, 2003 ( NARINDER KUMAR) ADDL. SESSIONS JUDGE FAST TRACK COURTS ROHINI: DELHI 28/03/2008