Delhi District Court
State vs . on 5 August, 2013
IN THE COURT OF SH. T.S. KASHYAP
ADDITIONAL SESSIONS JUDGE-01/SPECIAL JUDGE (NDPS)
SHAHDRA DISTRICT, KARKARDOOMA COURTS, DELHI
FIR No. : 271/11
Under Section : 392/397/34 IPC
Police Station : Gokalpuri, Delhi
Sessions Case No. : 75/2011
Unique I.D. No. : 02402R0304032011
In the matter of :
STATE
Vs.
1. Jitender @ Jeetu
S/o Govind Ram Sharma
R/o Gali No. 5, Tilak Ram Colony
Behta Hajipur, Loni, Ghaziabad, U.P
2. Ajay Kumar
S/o Laxmi Narayan
R/o Tilak Ram Colony
Behta Hajipur, Loni
Ghaziabad, U.P . . . Accused Persons
Date of Institution : 13/10/11
Date of committal : 15/10/11
Date of reserving judgment : 05/08/13
Date of pronouncement : 05/08/13
JUDGMENT
Brief facts of the prosecution case are that on 07/08/11 complainant Salman S/o Taj Mohammed R/o C-59, Gali No. 14, Munga Nagar, Delhi, aged about 19 came at the police station Gokalpuri and got his statement recorded as under :-
"I, alongwith my parents reside at the aforesaid address, am doing the work of mobile repairing at NOIDA. Yesterday i.e 06/08/11, I took a bus from NOIDA and got down from it at Loni FIR No. : 271/11 Page 1 of 16 Goalchakkar and was waiting for TSR for going to my house. After sometime, one TSR stopped near me which came from Ashok Nagar and driver of the said TSR asked me BHAJANPURA CHALNA HAI. Two young boys were already sitting in the TSR at back seat and I also sat in the TSR with those two boys. When at about 10:40 p.m TSR reached over Gokalpur flyover then TSR was stopped by its driver and one of the boys sitting at the back seat put the knife on my neck and told SHOR MACHAYA TO TERA KAM TAMAM KAR DUNGA. Other boy took out from the pocket of my pant one mobile phone No. 9650123245- 8520 Blackberry, ATM card of PNB bank and cash Rs. 500-600/- and I was thrown away from the TSR but I noted down the registration number of running TSR as DL-1RK-2191. All the three boys robbed me on the point of knife. I can identify them, if shown to me. Action be taken against all of them".
2. On the basis of facts and circumstances and statement of complainant a case U/s 392/397/34 IPC was found to be made out and accordingly FIR of the present case was got registered.
3. After completion of the investigation, charge-sheet was filed against accused persons namely Jitender @ Jeetu and Ajay Kumar U/s 392/397/34 IPC. During investigation accused Deepak @ Changa was declared juvenile and his case was referred to Juvenile Justice Board for trial.
4. Ld. Metropolitan Magistrate after supplying the necessary copies to the accused persons namely Jitender @ Jeetu and Ajay Kumar committed the case to the court of Sessions vide order dated 13/10/11.
5. My Ld. Predecessor vide order dated 02/11/11 charged both the accused persons for the offences punishable U/s 392/397/34 IPC, to FIR No. : 271/11 Page 2 of 16 which they pleaded not guilty and claimed trial.
6. The prosecution in support of its case examined as many as 14 witnesses.
(a) The prosecution examined following material witnesses :-
i) PW1 Salman is the complainant of the present case. He deposed that on 06/08/11 he was returning from NOIDA and going to his house and reached at Loni Goalchakkar at about 10:40 p.m from where he took auto for going to Bhajanpura.
He boarded the auto and sat at the back seat. There were already two passengers sitting on the back seat. When the auto reached at the Gokalpuri Flyover, one person took out knife and put the same on his neck and other started searching his pocket. Both of them threatened him not to raise alarm and to hand over whatever cash he was carrying. That boy removed his ATM card of PNB Bank, cash Rs. 600/- and his mobile phone of Blackberry model No. 8520 from the pocket of his pant. Thereafter, they threw him from the auto on Gokalpuri flyover. He also proved his statement Ex. PW1/A, arrest memo of accused Ajay Kumar Ex. PW1/B, his personal search memo Ex. PW1/C. He also identified his robbed mobile phone Ex. PW1/Art. 1, his ATM card of PNB Bank Ex. PW1/Art. 2, cash Rs. 600/- Ex. PW1/Art. 3, retail invoice of his mobile phone mark PA and its seizure memo Ex. PW1/D. He further stated that he had also visited Tihar Jail for FIR No. : 271/11 Page 3 of 16 the TIP but accused persons had refused to participate in the TIP.
ii) PW4 Bali Ram is the registered owner of TSR bearing registration No. DL-1RK-2191 and brought the same to the court premises. He further deposed that original RC of the said TSR is lying in the judicial file of Juvenile Justice Board (JJB). He also proved the photocopy of said RC Ex. PW4/A. He further deposed that on the date of incident, the said TSR was being driven by driver Deepak.
(b) The prosecution also examined following formal witnesses : -
i) PW2 ASI Rajender Prasad deposed that on 07/08/11, he was posted at PS Gokalpuri as Duty Officer and on the basis of rukka received from ASI Sona Ram recorded the FIR of the present case. He also proved the copy of FIR Ex. PW2/A. His endorsement on rukka Ex. PW2/B. After registration of the FIR, he sent the copy of the FIR and rukka to ASI Sona Ram through Ct. Rakesh for investigation.
ii) PW5 Varun Aggarwal, Assistant Ahlmad in the court of Sh. Shailender Malik, Ld. ACMM/NE has brought the original judicial record of case FIR No. 244/11, U/s 25/54/59 Arms Act, PS Shahdara containing disclosure statement of accused Jitender @ Jeetu, seizure memo of knife which was recovered from accused Jitender @ Jeetu, sketch memo of knife, arrest memo of accused FIR No. : 271/11 Page 4 of 16 Jitender @ Jeetu and site plan vide Exs. PW5/A, PW5/B, PW5/C, PW5/D and PW5/E respectively.
iii) PW6 Ct. Munish Kumar brought the original record pertaining to DD No. 15B dated 08/08/11 made by SI Balwan Singh of PS Shahdara regarding arrest of accused Jitender @ Jitu and Deepak in case FIR No. 244/11 U/s 25 Arms Act and Sec. 41.1(d) Cr.PC and making of their disclosure statements about their involvement in the present case and their production before the court. He proved the copy of DD No. 15B as Ex. PW6/A.
iv) PW7 HC Sardar Singh deposed that on 07/08/11 he was posted as MHCM at PS Shahdara and on that day SI Kapil Kumar had deposited one auto rickshaw bearing registration No. DL-1RK-2191, one parcel sealed with the seal of KK and one mobile phone model No. 8520 Blackberry having IMEI No. 359430032981942 and one ATM card and articles recovered from the personal search of accused Deepak @ Changa. He also made entry of the same at Sl. No. 2781/11 in register No. 19. He further deposed that on 21/08/11, the above said articles were taken by IO/ASI Sona Ram of PS Gokalpuri.
v) PW13 Ms. Shuchi Laler, Metropolitan Magistrate, Karkardooma Courts, Delhi deposed that on 12/08/11, she visited Tihar Jail for conducting TIP of accused Jitender @ Jeetu and Deepak @ Changa but both the accused persons refused to participate in the TIP despite her warning. She FIR No. : 271/11 Page 5 of 16 also proved TIP proceedings of accused Jitender and Deepak @ Changa Ex. PW13/B and PW13/C respectively.
(c) The prosecution has examined the following witnesses of investigation :-
i) PW3 Ct. Rakesh Kumar deposed that on 07/08/11 he was posted at PS Gokalpuri and after registration of FIR, he took copy of FIR and original rukka at the spot i.e Gokalpuri flyover and handed over the same to the IO. He further deposed that on 17/08/11, he again joined the investigation of this case and he alongwith the IO came at Karkardooma Court in Room No. 63 where accused Jitender was produced from judicial custody and IO took one day police custody remand of accused Jitender. Thereafter, he alongwith IO and accused Jitender reached at the spot and accused pointed out the place of occurrence. IO prepared the pointing out memo Ex. PW3/A. He further deposed that when they reached at the PS where complainant Salman who was already present there identified the accused Jitender @ Jeetu as one of the accused persons who alongwith his other two associates had committed robbery upon him.
ii) PW8 SI Balwan deposed that on 07/08/11 he was posted at PS Shahdara and on that day accused Jitender @ Jeetu and Deepak were arrested in case FIR No. 244/11, U/s 25/54/59 Arms Act, PS Shahdara wherein accused Jitender had disclosed regarding his involvement FIR No. : 271/11 Page 6 of 16 in the present case and made his disclosure statement in this regard, copy of which already Ex. PW5/A. He also proved arrest memo of accused Jitender Ex. PW5/D. He further deposed that accused Jitender was found in possession of knife which was seized by him in case FIR No. 244/11 vide seizure memo Ex. PW5/B. He had also prepared the sketch of knife Ex. PW5/C. Accused Jitender had also disclosed that he had used the said knife while committing the offence of the present case. Thereafter, he had given information in this regard to PS Gokalpuri vide DD No. 15B. Thereafter, IO of this case met him and collected the copy of above-said documents from him. IO also recorded his statement.
iii) PW9 HC Satish Chander deposed that on 07/08/11 he was posted at PS Shahdara and on that day he was on duty of vehicles checking and he alongwith Ct. Lokesh was present at barricade picket at Shyam Lal College. At about 7:45 p.m, one TSR bearing registration No. DL-1RK-2191 came there from the side of Seelampur and when they tried to stop the TSR, the driver of TSR did not stop the TSR and tried to run away from there but they got stopped the TSR by pushing the barricade in front of TSR. There were two persons sitting in the TSR and one of them got down from the TSR and ran away from there but they apprehended the other persons who were sitting in the TSR on back seat and the driver of the TSR. On interrogation FIR No. : 271/11 Page 7 of 16 name of the driver was revealed as Deepak @ Changa and the name of the person who was sitting in the TSR was known as Jitender Sharma @ Jitu. On taking the formal search of accused Jitender @ Jitu, one buttondar knife was recovered from him. He proved the sketch of knife Ex. PW5/C, its seizure memo Ex. PW5/B, disclosure statement of accused Jitender Ex. PW5/A, arrest memo of accused Jitender Ex. PW5/D.
vi) PW10 SI Kapil deposed that on 07/08/11 he was posted at PS Shahdara and on that day on receipt of DD No. 18A, he alongwith Ct. Kishan reached at the spot i.e near Shyam Lal College near police picket, Shahdara where he met with SI Balwan and HC Satish and conducted investigation of this case. He arrested the accused Deepak @ Changa U/s 41.1 (d) Cr.PC and on the next day he produced the accused before the concerned court where ASI Sona Ram met him and he handed over him photocopies of the relevant documents.
v) PW11 Ct. Kishan deposed that on 07/08/11 he was posted at PS Shahdara and on that day he alongwith SI Kapil reached at G.T. Road near Shyam Lal College and took part in the investigation of this case alongwith SI Kapil.
vi) PW12 Ct. Munesh Kumar deposed that on 30/09/11 he was posted at PS Gokalpuri and on that day he was alongwith IO and complainant were present at Loni Goalchakkar for FIR No. : 271/11 Page 8 of 16 investigation of this case where on the pointing out of secret informer IO arrested accused Ajay vide arrest memo Ex. PW1/B. He also proved personal search memo of accused Ajay Ex. PW1/C, his disclosure statement Ex. PW12/A, pointing out of memo of place of occurrence Ex. PW1/E.
vii) PW14 SI Sona Ram is the IO of the present case. He deposed that on 07/08/11, he was posted at PS Gokalpuri and on that day complainant Salman came to the PS and gave him oral complaint regarding robbery committed in a TSR at Gokalpur flyover. He recorded his statement vide Ex. PW1/A and after endorsing the same vide Ex. PW12/A, he got the FIR of this case lodged through Duty Officer. He also prepared site plan Ex. PW14/B. He also proved DD No. 15 Ex. PW6/A, arrest memo of accused Jitender Ex. PW14/C, his personal search memo Ex. PW14/D, his disclosure statement Ex. PW14/E, arrest memo of accused Ajay Ex. PW1/B, his personal search memo Ex. PW1/C, his disclosure statement Ex. PW12/A, pointing out memo of place of occurrence by accused Ajay Ex. PW1/F, seizure memo of receipt of mobile phone Ex. PW1/D. He further deposed that after completion of investigation, he prepared the charge-sheet and the same was sent to the court.
7. After closure of the Prosecution Evidence, all the incriminating evidence against both the accused persons was put to them FIR No. : 271/11 Page 9 of 16 in their statement U/s 313 Cr.PC recorded on 17/04/13 wherein both the accused persons pleaded that the witnesses are false and interested and they have been falsely implicated in this case even though they have no concern with the case in any manner. However, they have not opted to adduce evidence in defence despite opportunity.
8. I have heard the submissions from Ld. Chief Public Prosecutor for the State and Sh. Gautam Pal, Ld. LAC for both the accused persons. I have also gone through the record.
9. Ld. Chief Public Prosecutor for State submitted that the complainant Salman PW1 has supported the prosecution case and has identified both the accused persons in the court. His mobile phone was recovered from accused persons and the same was also identified by the complainant PW1. His statement appears to be natural. The accused persons had robbed him at the point of a knife (deadly weapon) and the case is proved against the accused persons and they be convicted as per law.
10. Ld. Defence Counsel has submitted that as per the story of the prosecution, the present case was registered on the complaint of one Salman on the basis of which the present FIR has been registered. In his said complaint Ex. PW1/A, he has stated that on 06/08/11 when he got down the bus at Loni Goal Chakkar he was waiting for the TSR whereas in his cross-examination he has stated that he had come to Shahdara from NOIDA in a Metro and took auto to go to Loni Goal Chakkar. In his chief- examination he has stated that after the accused had thrown him from the auto on Gokalpuri flyover, he got stopped another auto coming from the side of Loni Goalchakkar and disclosed the entire incident to the said auto driver and the passenger sitting in the said auto and requested them to chase the auto in which the alleged accused persons were travelling.
FIR No. : 271/11 Page 10 of 16Initially the driver of the said auto refused to do so but on the insistence of the passengers the driver agreed to chase that auto. In the meantime, two police officials came there on motorcycle on patrolling and the complainant disclosed the entire incident to the said patrolling police officials and also the registration number of auto in which the alleged accused persons were sitting. Thereafter, the complainant alongwith the police officials searched that auto but the same could not be found. Thereafter, the said police officials took him to police station and gave message to control room about the incident. He further stated in his examination that he called his parents at the police station. All these submissions do not find mention in his complaint Ex. PW1/A and if that is so the said patrolling police officials should have been made witness in the present case and also the driver and the passengers of the auto which had chased the auto of accused persons. The IO has not filed the message which was flashed to the control room about the incident and if the message was flashed by the said patrolling police officials, the FIR should have been registered on the complaint of the said police officials rather than on the complaint of complainant Salman. The passengers were also not made witness by the police. The story which is put forth by the complainant Salman is against the story of the police whereas police has stated that the present case has been registered on the complaint of Salman who has come to the PS Gokalpuri and made a complaint in this regard. As per the story of police the accused Ajay was arrested on 30/09/11 on the secret information and if that is so the statement of the complainant that he has identified the accused Ajay in the PS on the next day of the incident is a mystery and goes against the story of the prosecution.
Salman has further deposed in the examination-in-chief that on the next day of the incident in the morning at about 4:00 a.m, he received a telephone call from the PS : Gokalpuri and he went to the PS :
Gokalpuri where he saw two accused persons alongwith one more and FIR No. : 271/11 Page 11 of 16 identified them and told the IO that these are the same persons who had committed robbery on him and both of them were sitting on the back seat. The complainant has identified those two persons as Jitender and Ajay whereas as per the story of the police as per FIR No. 244/11, PS :
Shahdara the accused Jitender and Deepak were arrested on 08/08/11 at about 7:45 p.m. As per the statement PW3 Ct. Rakesh Kumar has stated in his examination-in-chief that on 17/08/11 he joined the investigation and he alongwith the IO came to the Karkardooma Court in Room No. 63 where the accused Jitender was produced from the judicial custody in the case FIR No. 244/11 and the IO took one day police custody in the present case for the first time and he was taken to the place of incident and prepared a pointing out memo and searched for the other accused persons and returned back to the PS where the complainant Salman was already present and he identified the accused Jitender as an accused who alongwith two other associates had committed robbery upon him and accused was sent to the lock up and IO recorded his statement.
The recovery has not been affected from the accused Jitender and Ajay and it is alleged to have been shown from Deepak. The ownership of mobile has not been proved. Accused persons were not arrested from the spot. As per the statement of PW4 who is registered owner of PCR he has stated that the auto was given to Deepak and not to the accused Jitender and Ajay. The knife has not been produced in the court in the examination of the complainant Salman and the same was also not shown to the witness. In the examination of PW1 Salman the mobile phone, the ATM card were produced in unsealed condition. Recovery was not affected in the presence of the complainant.
The seizure memo of mobile, the ATM and Rs. 600/- have been shown to have been recovered from Deepak on 21/08/11 whereas he was alleged to have been arrested in case FIR No. 244/11 on 08/08/11.FIR No. : 271/11 Page 12 of 16
The ownership of ATM card and the mobile phone has not been proved by the complainant in the case. The call details and the mobile tracking of the complainant's phone has not been done by the IO. There is a difference in the IMEI number of the alleged phone in the seizure memo dated 21/08/11 and in the slip of the mobile given by the complainant to the police. The complainant Salman has not been made a witness of the site plan alleged to have been prepared on 07/08/11. The sketch of the knife does not bear the FIR number and other details of the case.
11. As per prosecution case, PW3 Ct. Rakesh Kumar has deposed that on 17/08/11, accused Jitender was produced in the court whose one day police remand was taken and the complainant had identified this accused at the police station. PW4 Bali Ram has only deposed that on the date of incident TSR was being driven by Deepak but he is not an eye-witness. PW5 Varun Aggarwal, Assistant Ahlmad has proved the disclosure statement of accused Jitender, seizure memo of knife, its sketch memo, arrest memo and site plan with respect to FIR No. 244/11, U/s 25 Arms Act, PS Shahdara. PW6 Ct. Munish Kumar has proved the DD No. 15B dated 08/08/11 regarding arrest of accused Jitender and Deepak in the said FIR. PW7 HC Sardar Singh has deposed that on 07/08/11 he was posted as MHCM at PS: Shahdara when SI Kapil Kumar deposited one TSR No. DL-1RK-2191, one sealed parcel with the seal of KK, one mobile phone and one ATM card recovered from juvenile Deepak @ Changa whose case has been referred to Juvenile Justice Board for trial. PW8 SI Balwan has deposed that on 07/08/11 accused Jitender @ Jeetu and Deepak was arrested in case FIR No. 244/11, PS Shahdara wherein the knife used in the commission of offence in this case was seized but the said knife has not been produced in the court. PW9 HC Satish Chander deposed that one buttondar knife was recovered from accused Jitender who was apprehended alongwith accused Deepak @ Changa and they had disclosed the name of the accused Ajay.
FIR No. : 271/11 Page 13 of 1612. As per statement Ex. PW1/A made by complainant Salman neither names of accused persons were stated nor their descriptions were given. As per the charge-sheet, on 08/08/11 vide DD No. 15B an information was received through SI Balwan Singh that accused Jitender @ Jeetu and accused Deepak in FIR No. 244/11, U/s 25 Arms Act, PS:
Shahdara were arrested in kalandra U/s 41.1(D) Cr.PC who made disclosure statements with respect to FIR No. 271/11, PS Gokalpuri who shall be produced in the court of Ld. ACMM, Karkardooma Courts, Delhi. IO concerned be informed. Accused Jitender @ Jeetu was arrested by SI Balwan Singh and juvenile Deepak was arrested by SI Kapil who made disclosure of the present case FIR. They were formally arrested on 12/08/11, both accused refused to join TIP. One day police custody remand of accused Jitender @ Jeetu was taken to search accused Ajay Kumar but he was not traced. Accused Jitender @ Jeetu was identified on 17/08/11 at police station. Accused Deepak was produced before juvenile court on 18/08/11.
13. On 21/08/11 ASI Sona Ram received TSR, ATM card, mobile phone and Rs. 600/- from PS Shahdara when these were allegedly recovered. RC of TSR was seized from registered owner Bali Ram.
14. On 30/09/11 an information was given by secret informer, accused Ajay Kumar was arrested in front of temple at Loni circle who was identified by Salman and accused Ajay Kumar was arrested.
15. As per seizure memo Ex. PW14/F, mobile phone, ATM Card and Rs. 600/-, recovered from juvenile Deepak U/s 102 Cr.PC were deposited with MHCM. None of the article was recovered on the basis of any disclosure from accused Deepak and therefore the said recovery was not admissible. PW1 Salman in his cross-examination admitted that he does not know the currency number of notes. He admitted that invoice of FIR No. : 271/11 Page 14 of 16 mobile was not issued in his name. He admitted that no recovery was affected in his presence. He does not remember the date of arrest of accused Ajay whereas as per charge-sheet he was identified by Salman and was arrested on 30/09/11.
16. As per PW9 HC Satish Chander recovery of mobile phone of Blackberry, one ATM card of PNB, one purse of black colour containing Rs. 600/-, one purse of black colour containing Rs. 100/- and some visiting card and license were affected from juvenile Deepak by SI Kapil. Seizure memo was not produced and proved in the court. SI Kapil has also not produced and proved the seizure memo in respect of mobile phone, ATM card and Rs. 600/- of complainant. No public person was joined in the alleged recovery. The complainant Salman has admitted that recovery was not affected in his presence. The alleged recovery is not admissible in evidence. Accused Ajay was arrested on 30/09/11 as per information given by secret informer. Salman does not remember the date of arrest of accused Ajay although as per charge-sheet Salman identified the accused Ajay at Goalchakkar Loni on that day where he was also arrested.
17. PW8 SI Balwan Singh has admitted that dossier cell took photographs of accused persons. Therefore, in view of the statement of accused before Ld. MM that he does not want to join TIP as he was shown to some persons and his photographs were taken, no adverse inference can be drawn against the accused Jitender @ Jeetu for refusing to join TIP. In respect of accused Ajay no TIP was conducted and he was allegedly arrested at the instance of secret informer and thereafter identified by Salman on 30/09/11 but Salman does not remember the date of arrest of accused Ajay. Salman had not given any description of accused persons in his statement as such the identification of accused Jitender @ Jeetu at PS and of accused Ajay on 30/09/11 cannot be believed. In my considered view the prosecution has failed to prove FIR No. : 271/11 Page 15 of 16 beyond reasonable doubt that the accused Jitender and Ajay had committed the offence for which they have been charged. As such both accused persons are entitled to benefit of doubt and acquittal and they are accordingly acquitted. Their bails bonds are cancelled. Sureties are discharged. However, both the accused are directed to furnish personal bond and surety bond in sum of Rs. 10,000/- each in terms of provision of Sec. 437-A Cr.PC within a week. Case property, if any, be destroyed as per rules after expiry of period of appeal/revision. File be consigned to Record Room.
Announced in the open court today i.e 5th August 2013 (T.S. Kashyap) ASJ-01/Spl. Judge (NDPS) Shahdra District Karkardooma Court, Delhi FIR No. : 271/11 Page 16 of 16