Delhi District Court
State vs 1) Prem Singh @ Prem on 25 August, 2012
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In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
I) Sessions Case No. : 150/2009 & 154/2009
Case arising out of:
FIR No. : 72/05
Police Station : Karol Bagh
Under Section : 395/412/397/34 IPC
State versus 1) Prem Singh @ Prem
S/o Sh. Ram Prasad
R/o 57/1726, Naiwalan
Karol Bagh, New Delhi
2) Sachin Verma @ Ashu
S/o Sh. Pawan Kumar
R/o D29, Ranpratap Road
Adarsh Nagar, New Delhi
Also at: A32 Majlis Park
Adarsh Nagar, New Delhi
3) Tarkeshwar @ Bittoo
S/o Sh. Jagpati
R/o C152 Sarai Peepal
Pala
Adarsh Nagar, New Delhi
4) Ravi Gupta @ Ravi
S/o Late Sh. Devnandan
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Gupta
R/o C152 Sarai Peepal
Pala
Adarsh Nagar, New Delhi
5) Gopal
S/o Sh. Arjun Singh
R/o Bapa Nagar, Padam
Singh Road V & PO
Lakhmohna
Nemdarganj Police Station
Akbarpur Distt. Nabadar,
Bihar
6) Bharat
S/o Sh. Tuka Ram
R/o A31, Shastri Nagar
Police Station Sarai
Rohila, Delhi
7) Ravinder Singh
S/o Sh. Devtadeen Singh
R/o H. No. J34/41 Beadon
Pura Karol Bagh, New
Delhi
Also At: V & PO Belma
Mohd. Pur Police
Station Gambhir Pur
Distt.
Azamgarh, UP
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8) Rambishan @ Vishnu
S/o Sh. Dhaniram Singh
R/o H. No. J34/41 Beadon
Pura Karol Bagh, New
Delhi
Also At: V & PO Belma
Mohd. Pur Police
Station Gambhir Pur
Distt.
Azamgarh, UP
9) Ram Singh
S/o Sh. Bindeshwari Singh
R/o Basement Stuti
Building
Bank Street, Karol Bagh
Also At: V & PO Srijan
Pur
Bishaham Police Station
Gambhir Pur Distt.
Azamgarh, UP
10) Bhim @ Sagar
S/o Sh. Rajdev
R/o Village Ubarpur
Police Station Gambhir
Pur
Distt. Azamgarh, UP
AND
II) Session Case No. : 151/09
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Case arising out of:
FIR No. : 86/05
Police Station : Karol Bagh
Under Section : 25 Arms Act
State Versus Ram Singar @ Ram Singh
S/o Sh. Bindeshwari Singh
R/o 1210, Stuti Building
Basement, Bank Street
Karol Bagh, New Delhi
AND
III) Session Case No. : 152/09
Case arising out of:
FIR No. : 85/05
Police Station : Karol Bagh
Under Section : 25 Arms Act
State Versus Ravi Gupta @ Ravi
S/o Late Sh. Devnandan
Gupta
R/o C152 Sarai Peepal Pala
Adarsh Nagar, New Delhi
AND
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IV) Session Case No. : 153/09
Case arising out of:
FIR No. : 84/05
Police Station : Karol Bagh
Under Section : 25 Arms Act
State Versus Prem Singh @ Prem
S/o Sh. Ram Prasad
R/o 57/1726, Naiwalan
Karol Bagh, New Delhi
Judgment reserved on : 24.7.2012
Judgment pronounced on : 25.8.2012
JUDGMENT
By this common judgment, I shall dispose of the aforesaid cases registered against the above mentioned Accused at Police Station Karol Bagh, being case FIRs No. 72/05, 84/05, 85/05 and 86/05. Case of the Prosecution: The case of the Prosecution commences with the registration of case FIR bearing No. 72/05 Police Station Karol Bagh :6: on the basis of complaint dated 03.2.05 lodged by Saroop Santra. The said complaint is Ex. PW1/A. The chargesheet discloses that on 03.2.05 at about 8.45 PM, an information regarding incident of robbery was received at Police Station Karol Bagh which was recorded vide DD No. 40A. On receipt of the said information, SI Baljeet Singh and Ct. Kundan Singh reached at place of occurrence i.e. shop at 36/3089, Karol Bagh where one iron safe (tijori) was lying open and the articles were scattered here and there. The said shop was in the name and style of Vishwakarma Jewellers where Complainant Saroop Santra informed the police about the incident. His complaint about the incident, Ex. PW1/A was recorded at the spot.
The Complainant stated that he is running the aforesaid shop in the name of Vishwakarma Jewellers along with his partner Sh. Gopi Chand Patra. On the day of the incident, he was present at his shop along with his worker Anant Bera and brother of his partner namely Ram Krishan. At about 8.158.30 PM, two persons one about 5' 9"5' 10" in height and other who was little short in height entered :7: the shop. Complainant further alleged that one of them slapped him and made him fall down while the other person slapped Anant Bera. In the meantime, two more associates of the Accused entered the shop and opened the iron safe (tijori) in which keys were already hanging. They took out jewellery articles from the safe/locker. The Complainant further alleged that the tall person was having an iron rod in his hand with which he caused injuries to him and they all fled away from the spot. He also stated that he can identify all the four Accused persons upon seeing them. It is further the case of the Prosecution that on the next date i.e. 04.2.05, partner of the Complainant namely Sh. Gopi Kishan Patra stated that 3993 grams of gold jewelley have been stolen from their shop.
The case was registered on the basis of the aforesaid complaint and during the course of investigation, on the basis of a secret information, Accused Prem Singh was apprehended and one desi katta was recovered from his possession. Accordingly, case FIR bearing No. 84/05 Police Station Karol Bagh under Section 25 Arms Act was registered against him. During the course of interrogation, his :8: disclosure statement was recorded. He disclosed about his involvement in the commission of the aforesaid offence along with other coAccused namely Ram Singh, Sachin, Tarkeshwar, Ravi Gupta, Bhim, Ram Bishan @ Vishnu, Bharat, Ravinder Singh and Gopal. He further disclosed that they all committed aforesaid robbery and some of the gold was given to Bharat by Accused Ram Singh which he can get recovered. Further, at instance of Accused Prem Singh gold weighing worth 119 grams and gold karas weighing 122 grams were recovered. Accused Ashu @ Sachin was also apprehended on 10.2.05 and at his instance 60 grams gold articles were recovered during the investigation.
It is further the case of the Prosecution that upon apprehension of Accused Tarkeshwar @ Bittoo on 10.2.05, gold jewellery weighing 120 grams were recovered from his possession.
On 10.2.05 Accused Ravi Gupta was also apprehended during the course of investigation and one desi katta was recovered at his instance for which separate case FIR bearing No. 85/05 Police Station Karol Bagh under Section 25 Arms Act was registered against him. Further, at the instance of Accused Ravi Gupta, gold jewellery :9: weighing 187 grams was recovered.
The chargesheet further discloses that looted jewellery weighing about 55 grams was recovered at instance of Accused Gopal while at the instance of Accused Bharat, who was also apprehended during investigation, jewellery weighing 172 grams was recovered.
The Investigating Agency also apprehended Accused Ravinder Singh from whose possession one desi katta besides 56 grams of gold ornaments were recovered. On 10.2.05 Accused Ram Bishan was also apprehended during investigation and jewellery weighing 55 grams were recovered at his instance. A case under Section 25 Arms Act bearing FIR No. 86/05 was also registered against Accused Ram Singh who was found in possession of one desi katta besides jewellery weighing 364 grams.
An application for TIP of Accused persons were filed before the concerned court. However, Accused Ram Singh and Ravi Gupta refused to participate in TIP proceedings. Accused Prem Singh was correctly identified in TIP proceedings by the Complainant. It is also the case of the Prosecution that Accused Ram Singh and Ravi :10: Gupta were subsequently identified by Complainant during the course of investigation. The Complainant also identified the recovered jewellery articles during the TIP of the case property, which was subsequently released to the Complainant on supardari.
After completion of investigation, chargesheet was submitted before the court. During the course of proceedings, all the connected FIRs were also committed to this court as the said cases were vide order dated 23.11.05.
Charges: Charges for offence punishable under Section 25 Arms Act was framed against Accused Prem Singh, Ram Singh and Ravi Gupta to which the said Accused pleaded not guilty and claimed trial. Charge for offence punishable under Section 411 IPC was framed against Accused Ram Singh, Tarkeshwar, Sachin Verma, Prem Singh, Ravi Gupta, Ram Bishan @ Vishnu, Bharat and Gopal to which the said Accused pleaded not guilty and claimed trial. Accused Ravinder Singh was also charged for offence punishable under Section 25 Arms Act besides charge for offence punishable under Section 411 IPC to which :11: he pleaded not guilty and claimed trial. Accused Ram Singh, Sachin, Tarkeshwar, Ravi Gupta, Gopal, Bharat, Ravinder Singh, Ram Bishan @ Vishnu and Ram Singh were charged for offence punishable under Section 395/397 IPC to which they pleaded not guilty and claimed trial. It was also directed vide order dated 23.11.05 that evidence in all the cases, shall be recorded jointly in case FIR No. 72/05.
I have heard detailed arguments advanced by Ld. APP as well as by respective Defence Counsels representing the Accused and I have also carefully gone through the evidence on record.
The Prosecution in order to establish its case examined 28 witnesses on record. In their statement under Section 313 CrPC, all Accused stated that they have been falsely arrested in this case and identified by witnesses at the instance of IO. Nine Witnesses were examined in their defence by Accused Prem Singh, Gopal, Sachin, Bharat and Vishnu.
Prosecution Evidence And Arguments: Complainant Swaroop Santra was examined as PW1 who deposed that on 03.2.05 while he was present at his shop at 36/3089, :12: Karol Bagh, at about 8.15 PM, two persons came to the shop and started beating him and he fell down. He further stated that they removed the gold chain, kare and other jewellery from the shop. After sometime when he regained consciousness, he saw that all jewellery articles had been removed from the iron safe.
PW1 further deposed that he had identified Accused Ram Singh, Ravi Gupta and Prem Singh at Tihar Jail and correctly identified Accused Gopal present in the court as the person who had entered the shop and gave him beatings. In his crossexamination, the witness deposed that Accused Ram Singh was the first person to be seen when he entered the shop and Accused Ravi Gupta was also with him. He further deposed that Accused Gopal Singh and Prem Singh had also came there simultaneously. Despite his lengthy crossexamination conducted by Ld. APP, PW1 failed to identify Accused Bhim Singh as one of the offender.
Ram Kishan who as per case of the Prosecution was present at the shop of Complainant on the day of incident was examined as PW3. He deposed that on the day of incident i.e. 03.2.05 between :13: 8.30 to 8.45 PM, three persons entered the shop one by one, out of which two were having revolvers and they slapped Swaroop Santra and Som Nath and made them to fall on the floor. He also identified the tall person having revolver in his hand who had hit him on his head as Accused Ram Singh and deposed that he is unable to identify the other Accused persons. He categorically deposed in the crossexamination by Ld. APP that he is unable to identify Accused Ravi Gupta and Prem Singh.
PW4 Sh. Somnath, who as per case of the Prosecution had seen the incident, turned hostile and failed to identify any of the Accused persons.
PW5 Sh. Anant Bera deposed that at about 8.158.30 PM, two persons suddenly entered the shop and started beating them and they fell down on the floor. Thereafter, 24 more persons entered the shop and opened the locker with the help of the key lying inserted in the locker and took out all the jewellery items lying in the locker and ran away from there. He identified Accused Ram Singh, Prem Singh and Ravi Gupta as the assailants and further stated that Accused Ram Singh :14: was having katta with him and that he gave him beatings and hit him on his head with the help of said katta.
The partner of the Complainant Sh. Gopi Krishan Patra was brought into the witness box as PW6 who deposed that he was not present in shop at the time of the incident and on going to the shop, he found that about 4 kgs of jewellery articles were stolen from his shop.
PW7 Sh. Manu Karan, working as a Karigar of gold jewellery at Vishwakarma Jewellers, Karol Bagh deposed that on 03.2.05 at about 88.30 PM when he was coming down from the shop after finishing his job, he noticed four persons were going up and he saw them in the stairs. He later came to know that shop had been looted and jewellery articles were taken away. He further deposed that after 34 days, police had taken him to Tihar Jail for identification of those persons. He deposed that he identified one Prem Singh, whom he also correctly identified in court. He also identified Accused Ram Singh and Ravi Gupta stating that they have been identified by him in Police Station . He identified his signatures on the TIP proceedings. He deposed that TIP proceedings of Accused Prem Singh bears his :15: signatures and the same is Ex. PW7/A. Apart from the aforesaid witnesses, Prosecution also examined several witnesses to prove the arrest of the Accused and the various recoveries effected from their possession. PW8 SI Baljeet Singh deposed that on receipt of secret information, he along with Ct. Kundan reached the place of occurrence where statement of the Complainant Ex. PW1/A was recorded which bears his attestation at point B. He deposed that Ex. PW8/A bears his signatures at point A and gave rukka to Ct. Kundan Lal for registration of the case. He also deposed that he had called the crime team for lifting the finger prints from the spot but no chance prints were found. He prepared site plan at the instance of Complainant Saroop Santra Ex. PW8/B and on 04.2.05 he recorded statement of Sh. Gopi Kishan Patra who informed him that the jewellery articles of weight 3993 grams were taken away from the spot. PW8 further deposed regarding arrest of Accused Ravi Gupta on 10.2.05 on receipt of secret information and deposed that on search of Accused Ravi Gupta, one desi country made katta of .315 bore loaded with a cartridge was recovered from his possession. He prepared sketch :16: of the katta Ex. PW8/C and seized the same after sealing it vide seizure memo Ex. PW8/D. The seal after use was handed over to HC Kamal Singh (PW18). He further deposed that he prepared tehrir Ex. PW8/E and got case bearing FIR No. 85/05 registered against Accused Ravi Gupta for offence punishable under Section 25 Arms Act. He identified the katta stated to have been recovered from Accused Ravi Gupta upon seeing the same in court. He also correctly identified the empty cartridges when produced in court.
PW9 SI Lekh Singh deposed about apprehension of Accused Prem Singh on 10.2.05 on receipt of secret information. He stated that at that time he was accompanied with SI Yashwant, ASI Vijay, HC Krishan, HC Shashi and Ct. Vijender and deposed that countrymade katta recovered from Accused Prem Singh was seized vide seizure memo Ex. PW9/D. He further deposed that Accused Prem Singh was arrested vide memo Ex. PW9/B and his disclosure statement is Ex. PW9/C. PW9 also deposed that Accused Prem Singh made disclosure statement regarding looted articles and pursuant to his disclosure statement, one bunch of gold chains and one gold kara were :17: recovered from fifth floor of H. No. 57/1726, Naiwalan, Karol Bagh. He deposed that chains and kara were bearing Mark GS and 22 C. The recovered articles were kept in two separate pullandas and sealed with the seal of 'YS' vide seizure memo Ex. PW9/D and Ex. PW9/E respectively.
PW9 further deposed that Accused Sachin was also called upon by giving notice by IO/SI Yashwant. He further deposed that Accused Sachin made disclosure statement regarding this case Ex. PW9/H. PW9 further deposed that Accused Ravi Gupta was also apprehended at the instance of secret informer and from his possession one countrymade katta was recovered and case FIR bearing No. 85/05 was got registered. Accused Ravi Gupta also made disclosure statement regarding present case Ex. PW9/K and from his possession one jewellery article of present case i.e. kara was recovered having mark GS and 22 C was recovered. The same were seized vide memo Ex. PW9/L. PW9 also deposed that at the instance of Accused Prem Singh, another Accused Tarkeshwar was apprehended and from his :18: possession one gold kara was recovered which was seized vide memo Ex. PW9/N. He further deposed that Accused Prem Singh, Ravi Gupta and Tarkeshwar had pointed out place of occurrence Ex. PW9/Q, PW9/R and PW9/S respectively. He also correctly identified the aforesaid articles stated to have been recovered from the above named Accused.
PW10 ASI Ratan Singh deposed that on 11.2.05 he along with Ct. Bijender were investigating case FIR No. 72/05 and were present at Bank Street, Ajmal Khan Road when a secret information regarding Accused Ram Singh was received. On the basis of said information, Accused Ram Singh was apprehended and one country made katta of .315 bore which was loaded with one cartridge was recovered. The sketch of the katta and cartridge is Ex. PW10/A and aforesaid articles were seized vide seizure memo Ex. PW10/B. Case FIR No. 86/05 Police Station Karol Bagh was accordingly registered on the basis of tehrir Ex. PW10/C. PW10 correctly identified katta and cartridge when produced before court and deposed that Accused Ram Singh made disclosure statement Ex. PW10/D. PW10 deposed that :19: Accused Ram Singh led them to basement of Stuti Building, Bank Street from where he took out wooden box containing two gold kara and 10 chains of gold and on weighing they were found 364 grams in weight. The said articles were sealed with the seal of 'YS' and seized vide memo Ex. PW10/E. Accused Ram Singh was formally arrested in case FIR No. 72/05 Police Station Karol Bagh vide arrest memo Ex. PW10/F. PW10 correctly identified 10 gold chains and 2 gold kara produced by Complainant/supdar during the course of trial.
PW11 HC Shashi Kumar who had accompanied SI Yashwant, SI Lekh Singh, ASI Vijay Kumar, HC Krishan and Ct. Bijender in investigation proceedings on 10.2.05 deposed regarding apprehension of Accused Prem Singh and recovery of countrymade katta from his possession and recovery of one gold chain of about 119 grams and one bracelet of about 122 grams. Pursuant to the disclosure of Accused Prem Singh, he deposed that said articles were seized vide seizure memo Ex. PW9/D and PW9/E and Accused Prem Singh was arrested vide arrest memo Ex. PW9/B. He further deposed that on going back to the Police Station Karol Bagh, Accused Sachin made :20: disclosure statement Ex. PW9/H and was arrested in this case. He further deposed that Accused Prem Singh informed regarding involvement of Accused Tarkeshwar and Ravi Gupta in the present case and Accused Tarkeshwar was apprehended and from his possession one bracelet of 120 grams was recovered and seized vide memo Ex. PW9/O. Accused Tarkeshwar was arrested vide arrest memo Ex. PW9/N. PW11 HC Shashi further deposed arrest of Accused Ravi Gupta and recovery of one bracelet of 187 grams from his possession which was seized vide memo Ex. PW9/L and Accused Ravi Gupta was arrested vide arrest memo Ex. PW9/J. He deposed that thereafter Accused Ravi Gupta, Tarkeshwar and Prem Singh took them to the place of occurrence and pointed out the place of incident. Thereafter, they came back to Police Station and all the three Accused persons were sent to court.
Thereafter, he along with SI Yashwant Singh and Accused Sachin went to the house of Sachin at Adarsh Nagar at first floor and from his house, he got recovered one bracelet of about 60 grams under the cushion. Same was seized vide memo Ex. PW11/A. PW11 further :21: deposed that at 6.30 PM, he along with SI Hari Bhushan had gone to Beadon Pura along with a secret informer and Accused Ram Bishan @ Vishnu was apprehended along with Accused Ravinder Singh. Both the said Accused persons were correctly identified by the witness. He further deposed that they made their respective disclosure statements Ex. PW11/B and PW11/C, and were accordingly arrested vide arrest memo Ex. PW11/D and PW11/F. He further deposed that Accused took them to J34, Gali No. 41, Beadon Pura, Karol Bagh and from the loft of his room, Accused Ram Bishan got recovered one kara of about 55 grams which was seized vide seizure memo Ex. PW11/H. He further deposed that Accused Ravinder who was staying in that house with Accused Vishnu, got recovered one kara of about 56 grams which was seized vide memo Ex PW11/I. Accused Ravinder also got recovered one katta loaded with one cartridge from his house. The sketch of katta and cartridge is Ex. PW11/J. PW11 further deposed that on returning to the Police Station , Accused Vishnu and Ravinder Singh were left in the Police Station and they again left for Ajmal Khan Road and from near Gali No. 5, Beadon Pura, Ajmal Khan Road, Accused :22: Bharat Singh was apprehended. The said Accused took them to his shop at 2600, Gali No. 5, Beadon Pura and from the drawer of table, he got recovered one bracelet of about 172 grams which was seized vide memo Ex. PW11/M. Accused Bharat was arrested vide arrest memo Ex. PW11/O. PW11 also deposed that thereafter they came to Saraswati Road where one Accused Gopal was apprehended who led them to his shop at 3154, Gali No. 34, Beadon Pura, Karol Bagh and from there he got recovered one bracelet of about 55 grams which was seized vide memo Ex. PW11/Q. Accused Gopal was arrested vide arrest memo Ex. PW11/S. He further deposed that on the next morning i.e. No 11.2.05 they reached at Bank Street from where Accused Ram Singh was apprehended and one countrymade katta was recovered from his possession. Pursunt to his disclosure statement Ex. PW10/D, he led them to Stuti Building, Bank Street in a basement and got recovered two bracelets and a bunch of 10 gold chains which were seized at the spot vide memo Ex. PW10/E. PW11 correctly identified the jewellery articles got recovered from Accused Ram Singh, Prem Singh, :23: Tarkeshwar, Ravi Gupta, Ravinder Singh, Ram Bishan, Bharat and Gopal. He also identified the katta and cartridge recovered from possession of Accused Ravinder Singh. HC Hari Bhushan who had accompanied SI Yashwant and HC Shashi in investigation conducted on 10.2.05 was brought into the witness box as PW12. All the aforesaid witnesses deposed regarding apprehension of Accused Ram Bishan, Ravinder Singh, Bharat and Gopal and also correctly identified case property recovered from their possession when produced before the court.
PW18 HC Kamal Singh deposed about having joined the investigation along with SI Baljeet Singh and apprehension of Accused Ravi Gupta and the recovery of katta along with cartridge from his possession and registration of case FIR No. 85/05 Police Station Karol Bagh against the said Accused. He also correctly identified countrymade katta when produced before the court.
PW22 SI Yashwant deposed that on 06.2.05, investigation of the case was handed over to him. He recorded the statement of PW Manu Karan under Section 161 CrPC. He further deposed that on :24: 10.2.05, he along with SI Lekh Singh, HC Shashi, ASI Vijay Kumar, HC Kishan Kumar and Ct. Bijender apprehended Accused Prem Singh, from whose possession one desi katta was recovered. He further deposed that Accused Prem Singh led them to his house at Naiwalan, Gali No. 57 and got recovered one gold chain and one gold kara.
The witness further deposed regarding interrogation and his arrest. He further deposed that Accused Tarkeshwar and Ravi Gupta were also arrested on the basis of secret information and deposed regarding recoveries of jewellery articles and arms effected from possession of Accused Ram Bishan, Sachin, Ravinder Singh, Bharat, Gopal and Ram Singh, he further deposed that moved an application for TIP of Accused Ram, Prem Singh and Ravi Gupta. Accused Ram Singh and Ravi Gupta refused to participate in the TIP proceedings whereas TIP of Accused Prem Singh was conducted at Tihar Jail. He further deposed that he got the case property identified by the Complainant in TIP proceedings and sent the parcel of country made pistol and cartridge to FSL, Rohini. He also correctly identified jewellery articles recovered from various Accused persons when :25: produced before the court.
Apart from the aforesaid witnesses, the Prosecution also examined various formal witnesses including PW13 Duty Officer who registered the case FIR No. 72/05, PW19 Duty Officer who registered case FIR No. 84/05 and 85/05 Police Station Karol Bagh, PW26 HC Hans Raj was examined to prove the registration of case bearing FIR No. 86/05 Police Station Karol Bagh, PW16 took the rukka for registration of case FIR No. 72/05 Police Station Karol Bagh, PW14 took the case property in sealed pulanda to FSL for examination. In order to prove the TIP of the case property, Prosecution relied upon deposition of PW21 Sh. Paramjit Singh, the then Ld. MM/Delhi. TIP proceedings of Accused Ram Singh and Ravi Gupta were got proved by PW20 Ms Archna Singh, the then Ld. MM/Delhi. Besides this, Prosecution relied upon deposition of PW23 HC Jitender, PW24 ASI Vijay Kumar, PW25 SI Mahipal Singh and PW27 HC Krishan Kumar. PW28 the then DCP was examined to prove sanction under Section 39 Arms Arm in respect of unlawful arms allegedly recovered from possession of Accused Prem Singh, Ram Singh and Ravi Gupta. The :26: said sanctions are Ex. PW23/B, PW28/A and PW28/B respectively.
On the basis of evidence led by the Prosecution, Ld. APP strongly argued that the allegations against all the Accused persons stand proved beyond reasonable doubt.
Defence Evidence And ArgumentsAnalysis & Findings: On the other hand, Ld. Defence Counsels representing different Accused strongly opposed the case of the Prosecution. Accused Ram Singh and Bhim Singh: It was contended by Ld. Amicus Curiae appearing for Accused Ram Singh and Bhim Singh that Accused Bhim Singh has not been identified by any of the witnesses. Moreover, no recovery of either any stolen article or any unlawful arm is proved to have recovered from his possession.
It was further argued that Prosecution has also failed to prove its case under Section 394/397 IPC against Accused Ram Singh. It was contended that though as per PW1 Saroop Santra, he identified Accused Ram Singh. However, in his crossexamination dated 09.12.09, the witness deposed that he had seen the Accused persons at :27: the time of incident and thereafter he was called in the Police Station to identify the Accused and he had identified them in the Police Station before their TIP was conducted in Tihar Jail.
Ld. Amicus Curiae also pointed out that there are material contradictions in the deposition of the remaining Pws relied upon by the Prosecution. It was contended that though PW3 deposed that there were three persons who had entered the shop of the Complainant, it is own case of the Prosecution that even as per deposition of PW2, initially two persons had entered in the shop. It was further contended that PW4 deposed that offenders were in muffled face.
With regard to the alleged recovery of stolen articles, Ld. Amicus Curiae argued that in absence of any independent public witness, the deposition of the police officials cannot be accepted. It was further argued that alleged recovery of jewellery articles at the instance of Accused Ram Singh is stated to have been effected from an open place i.e. Basement of Stuti Building, Bank Street, Karol Bagh and in absence of any independent public witness to the alleged recovery, no reliance can be placed upon the sole testimony of police officials :28: who are interested witnesses.
Extending his arguments further, Ld. Amicus Curiae also contended that alleged recovery of katta with live cartridge from possession of Accused Ram Singh also does not stand proved on record in absence of any independent public witness examined by the Prosecution and that Accused deserves to be acquitted.
I have considered the aforesaid arguments of Ld. Amicus Curiae in support of Accused Bhim Singh and Ram Singh.
In so far as Accused Bhim Singh is concerned, I find myself in agreement with Ld. Amicus Curiae that there is no incriminating evidence on record against Accused Bhim. Neither any of the Prosecution witness identified him during entire length of trial nor any recovery of stolen articles or any firearm is alleged to have been effected from his possession. Accordingly, in the light of the aforesaid circumstances, Accused Bhim Singh is hereby acquitted of the alleged offences.
However, in so far as Accused Ram Singh is concerned, I find on going through the evidence on record that PW1 Saroop Santra :29: categorically identified Accused Ram Singh before the court. He also deposed that he saw the face of Accused Ram Singh when he entered the shop and Accused Ravi Gupta was also with him. As regards his crossexamination dated 09.12.09 to the extent that he deposed that he had seen the Accused persons at the time of the incident and thereafter he was called in the Police Station to identify the Accused persons and he identified them in the Police Station before their TIP was held in Tihar Jail. I find that same cannot be fatal to the Prosecution case, in view of the fact that immediately after deposing that PW1 had identified the Accused persons in the Police Station before TIP, the witness denied the suggestion that since he had seen Accused persons in the Police Station , therefore, he identified them in Tihar Jail. In other words, the witness has categorically and consistently taken the stand that he had seen Accused Ram Singh, Prem Singh and Ravi Gupta at the time of incident after which he identified them at Police Station , in the TIP proceedings and ultimately before court.
In these circumstances, the mere deposition in his cross examination to the effect that he had identified the Accused at the :30: Police Station would not be fatal to the case of the Prosecution and the deposition of PW1 cannot be discarded merely on this score.
Moreover, Accused Ram Singh was also categorically identified by PW3 as the person who had entered the shop and hit him with the back of revolver. Despite crossexamination, the testimony of PW3 to this effect remained unimpeached. It is also borne out from the deposition of PW1, as stated by him in his crossexamination on 09.12.09 that a tall person who had firstly entered the shop was carrying pistol in his hand. Further, PW7 Manu Karan also deposed that he had identified Accused Ram Singh at the Police Station . He also correctly identified him before the court stating that he was one of the four person whom he had noticed going up in the staircase. As per the deposition of PW7, he had seen four persons going up to the shop in question while he was coming down from the shop of Complainant after finishing his job. The deposition of PW7 remained unimpeached and it must, therefore, be accepted without any iota of doubt.
I am, however, in agreement with the arguments of the Defence that deposition of PW5 cannot be relied in so far as identity of :31: Accused persons is concerned in view of the fact that in his examination in chief dated 14.3.06, the witness deposed that he cannot identify any of the Accused persons who had entered the shop. His further examination was deferred at request of Prosecution and the fact that on the very next date i.e. 30.6.09 witness identified three Accused persons, makes it difficult to rely upon his testimony. Moreover, in his crossexamination dated 09.12.09, PW5 categorically admitted that he had identified Accused in court on 30.3.06 at the instance of other persons who had worked with him in the shop. Testimony of PW5 himself, therefore, must be discarded, and is totally unworthy of reliance.
Be that as it may, I find on going through the deposition of Prosecution witnesses including PW1, 3 and 7 that Prosecution has been able to establish its case beyond reasonable doubt as regards Accused Ram Singh. Prosecution witnesses have been able to bring out from their deposition that Accused Ram Singh was one of the persons who had entered the shop of the Complainant on the fateful day.
It has also come on record that he was carrying weapon :32: with him at that time and he also gave beatings to the Complainant while committing robbery. The recovery of 365 grams of stolen jewellery articles from the possession of Accused Ram Singh also also been duly proved on record.
I am unable to subscribe to the arguments of Defence that since jewellery articles were not weighed or got certified from a jeweller or from a 'Dharam Kanta' that they were gold articles, charge for offence punishable under Section 411 IPC does not stand proved on record. I find myself in agreement with the Prosecution to the extent that jewellery articles were clearly identified by the Complainant. It is also pertinent to take note of the fact that stolen jewellery articles were bearing mark GS 22C and in these circumstances they require no further certificate from any jewellery in view of their identification by the Complainant before the court.
Further, the mere fact that recovery of jewellery articles effectetd at the instance of Accused Ram Singh from basement of Stuti Building, Bank Street, Karol Bagh cannot be said to be doubtful since it is the case of the Prosecution that Accused Ram Singh led the police :33: party to the basement of the aforesaid building and got recovered stolen articles from the wooden box which was within his exclusive knowledge.
The Prosecution, in my view, has also been able to establish its case with regard to recovery of country made katta of .315 bore along with one live cartridge from possession of Accused Ram Singh though it has been contended that absence of public witness to the said recovery, makes case of the Prosecution doubtful, I find on going through the testimonies of the above mentioned recovery witnesses examined by the Prosecution that Prosecution has also been able to prove its case to this extent beyond reasonable doubt. It is well settled law that merely because no independent public witness has been examined, it would not per se make the deposition of the police officials doubtful. Reference in this regard may be placed on Gurjinder Singh Vs State of Punjab 2011 Crl. L. J. 1693 wherein it has been held that "fact that recovery was made in presence of policemen does not make it unreliable. Police officer can be reliable witness, if Court finds him to be truthful."
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Further, the Accused has not brought out any reason in his statement under Section 313 CrPC for his false implication. It is not his plea that police officials had any previous enmity with him nor he has cited any reason for his false implication. Consequently, in the light of aforesaid discussion, I find that the Prosecution has been able to prove its case against Accused Ram Singh for offence punishable under Section 394/411 IPC & 25 Arms Act. However, the Prosecution, in my view failed to prove the charge of Section 397 IPC against Accused as there is no material whatsoever to show that any deadly weapon was "used" within the meaning of Section 397 IPC by any of the Accused, nor any grievous hurt is proved to have been caused to any of the victims.
Ld. Amicus Curiae further contended that charge for offence punishable under Section 395 IPC cannot be said to be made out against any of the Accused in absence of any evidence regarding presence of 5 or more assailants present at the time of incident in question. My attention was drawn to the definition of 'dacoity' as defined in Section 391 IPC, as per which it is an essential ingredient to :35: constitute commission of offence of dacoity that 5 or more persons should be present or aiding in the commission of offence or any attempt to commit it. It was contended that none of the Prosecution witnesses deposed regarding presence of 5 or more Accused persons at any given point of time and charge for offence punishable under Section 395 CrPC does not stand proved.
Upon considering the submissions and on going through the deposition of Prosecution witnesses, I find myself in agreement with the submissions of Ld. Amicus Curiae. As none of the PWs deposed regarding presence of 5 or more persons at the time of commission of offence, offence under Section 395 IPC cannot be said to be made out against any of the Accused persons.
Accused Gopal: Ld. Counsel for Accused Gopal also argued that offence punishable under Section 395 IPC cannot be said to be made out in the facts of the present case as the presence of five offenders at the given point of time has not been established by any of the Prosecution witnesses nor it is the case of the Prosecution that five or more persons :36: entered the shop of Complainant for committing offence in question.
In so far as the allegations for charge under Section 394/397 IPC are concerned, Ld. Counsel for Accused Gopal pointed out that although PW1 identified Gopal as one of the persons who had entered the shop and given him beatings, PW1 himself has clearly deposed in his crossexamination dated 09.9.05 that he did not see any arm in the hands of Accused Gopal. Further, it was contended that as per crossexamination of PW1 dated 09.2.09, the Complainant knew Accused Gopal by his name as he had seen him coming to his partner Gopi Kishan since about 02 years prior to the incident. It was contended that despite the fact that Complainant knew Gopal prior to the incident, he admittedly did not disclose name of Accused Gopal at the time of lodging of FIR and in these circumstances apparently Accused Gopal has been falsely implicated in this case.
My attention was drawn to the testimony of PW3 Ram Kishan who has not identified any Accused except Accused Ram Kishan. Ld. Counsel for Accused Gopal also contended that PW4, being a hostile witness, cannot be relied upon and testimony of PW5 is :37: unworthy of reliance in view of the admission in his crossexamination that he had identified Accused persons at the instance of other persons. In so far as PW7 is concerned, he has not deposed anything about Accused Gopal. In the light of the aforesaid, it was argued that Accused Gopal cannot be convicted for offence punishable under Section 394/397 IPC on the basis of deposition of PW1 for the aforesaid reason.
Ld. Counsel appearing for Accused Gopal argued that as per case of the Prosecution had the Complainant Swaroop Santra had identified Accused Gopal in court on 25.2.05, accordingly his statement under Section 161 CrPC was recorded to this effect. It is also not in dispute that it did not mention the name of Accused Gopal in the complaint Ex. PW1/A. It was further pointed out that as per cross examination of PW1 Swaroop Santra recorded on 09.12.09, Complainant knew Gopal by his name and had seen him coming to the shop of his partner since about 02 years prior to the incident.
It was argued that despite the fact that Accused Gopal was known to the Complainant, he did not state his name in his complaint :38: Ex. PW1/A wherein he has specifically stated that he can identify the persons who had entered his shop, if shown to him. It was argued that in these circumstances, it is apparent that implication of Accused Gopal is an afterthought and the Accused is innocent.
I have considered the aforesaid submissions and gone through the record of the case. In view of the same, particularly, on going through the complaint Ex. PW1/A and the crossexamination of Complainant PW1 recorded on 09.12.09, I find force in the arguments of Ld. Defence Counsel that since as per Complainant, he knew Accused Gopal since about 02 years prior to the incident, he would have clearly identified him if he had seen him in his shop at the time of incident in question. The fact that same was not mentioned by him in the complaint Ex. PW1/A which even does not finds mention of name of Accused Gopal, certainly makes it deposition before the record regarding presence of Accused Gopal at the time of the incident doubtful.
I also find myself in agreement with the arguments of Ld. Defence Counsel representing Accused Gopal that offence punishable :39: under Section 395 IPC cannot be said to be made out against him as well as other Accused, as already observed hereinabove. Further, the fact that Complainant who knew him from two years prior to the incident did not name him while lodging FIR is certainly material aspect which clearly points towards false implication of Accused Gopal. There is no explanation as to why Complainant who already knew Accused Gopal failed to take his name before police officials and named him at the time of registration of case. In these circumstances, Accused Gopal is certainly entitled to benefit of doubt in so far as offence punishable under Section 394 IPC is concerned. Moreover, with regard to offence punishable under Section 397 IPC, I also find that there is no iota of evidence of use of any deadly weapon by Accused Gopal and he cannot be convicted for said offence also.
Insofar as the offence punishable under Section 411 IPC is concerned, it is the case of the Prosecution that Accused Gopal got recovered one gold kara belonging to Complainant on 10.2.05 from shop at 3154, Gali No. 34, Beadon Pura, Karol Bagh and thereby committed offence punishable under Section 411 IPC. In order to :40: prove this charge, Prosecution relied upon deposition of PW11 HC Shashi Kumar who deposed that Accused Gopal got recovered one bracelet weighing 55 grams from his shop which was seized vide memo Ex. PW11/Q. The disclosure statement of Accused Gopal is Ex. PW11/R. Accused Gopal was arrested vide arrest memo Ex. PW11/S. Personal search of Accused Gopal was conducted vide memo Ex. PW11/T and his pointing out memo is Ex. PW11/U. The Prosecution also relied on the deposition of PW12 HC Hari Bhushan who deposed that on 10.2.05 when they reached near Gali No. 5, Ajmal Khan Road, Karol Bagh along with secret informer and from the corner of street No. 5, Accused Gopal was apprehended who took them to his house at 2600/5 Beadon Pura 2nd Floor and got recovered one kara of about 55 grams which was taken into police possession and Accused was arrested. It was further contended by the Prosecution that said kara recovered at the instance of Accused Gopal was correctly identified by Prosecution witnesses and the charge for offence punishable under Section Gopal stands duly proved on record.
On the other hand, Ld. Defence Counsel contended that in :41: his examination in chief PW11 deposed regarding recovery of one bracelet at the instance of Accused Gopal whereas it is the case of the Prosecution that kara had recovered at his instance. It was further pointed out that as per PW12 HC Hari Bhushan, recovery was effected at the instance of Accused Gopal from H. No. 2600/5, 2nd Floor, Beadon Pura while as per PW1 recovery was effected from Gali No. 34/3154, Beadon Pura, Karol Bagh.
I have considered the said argument. A bare perusal of crossexamination of PW12 recorded on 18.8.06 would reveal that the place of recovery of kara weighing 55 grams at the instance of Accused Gopal was clarified by means of court question put to the witness to which he replied that infact recovery was effected from Gali No. 34/3154, Beadon Pura, Karol Bagh and he stated the address as 2600/05, Beadon Pura, due to confusion. In view of the said explanation on record, I find that said argument of the Defence regarding the place of recovery has been properly explained on record. Insofar as the argument of Defence regarding place of arrest of Accused is concerned, I am of the opinion that same is not fatal to the case of the :42: Prosecution since it is not in dispute that Accused Gopal was arrested during the course of investigation. Recovery of gold kara at his instance has been proved by the deposition of the aforesaid Prosecution witnesses.
I am further not able to subscribe to the arguments of Defence that recovery does not stand proved on record on account of nonjoining of public witnesses in view of the recent pronouncements of Hon'ble Apex Court in case titled as Gurjinder Singh (Supra) Further in C. Ronald & Anrs. (Supra), Hon'ble Supreme Court has held that "No principle of law that a statement made in Court by a police personnel has to be disbelievedPolicemen having no enmity with AccusedNothing on record to show that policemen were deposing falselyReliance can be placed on their statement." I am also unable to subscribe to the arguments of the Defence that Prosecution has failed to prove recovery of gold kara at the instance of Accused Gopal since admittedly after the recovery it was not taken to any dharamkanta or any gold smith to ascertain that same is made of gold.
I find on going through the material on record that :43: Prosecution witnesses have categorically identified the recovered articles which bear mark of GS 22C which as per PW4 and PW5 was used to be put on all ornaments of the shop of Complainant. Hence, the fact that Prosecution has failed to establish that recovered articles are made of gold is immaterial in view of the aforesaid.
In the light of the aforesaid, I am of the opinion that Prosecution has been able to establish its charge for offence punishable under Section 411 IPC against Accused Gopal.
Accused Prem Singh and Ravi Gupta: Ld. Counsel for Accused Prem Singh opposed the case of the Prosecution contending that Accused have been falsely implicated and charges against them have not been proved on record by the prosecution.
Ld. Defence Counsel on behalf of Accused Prem Singh contended that though Complainant PW1 in his deposition identified Prem Singh as one of the persons who had committed the robbery on the night of 03.2.05, yet it is a matter of record that Complainant Swaroop Santra had not identified Accused Prem Singh in the TIP :44: proceedings (Ex. PW7/A). It was argued that when the Accused Prem Singh was not identified by witness in TIP, then how he can identify him before the court implying thereby that deposition of PW1 is not believable.
I have considered the aforesaid submissions. However, I am unable to agree with the arguments of Ld. Defence Counsel. The mere fact that witness was unable to identify the Accused in TIP proceedings is not sufficient in my opinion to discard the identification of the Accused by the witness during his deposition made before the court on oath. The witness was subjected to crossexamination by the Defence and despite his crossexamination, his testimony regarding identification of Accused Prem Singh remained unimpeached. It is not the plea of the Defence that the witness was either tutored at the time of his deposition or that Accused was shown to him outside the court as no suggestion to this effect was put to the witness during the course of crossexamination of PW1. Accordingly, since PW1 Prem Singh categorically identified Accused Prem Singh during his deposition before the court which remained unimpeached despite his cross :45: examination, I am of the opinion that his testimony is worthy of reliance and cannot be thrown out merely on the fact that he did not identify Accused in the TIP proceedings.
It was further contended that though as per Prosecution case PW7 Manu Karan identified Accused Prem Singh as one of the persons whom he had seen going up on the shop in question on the night of the incident, yet his testimony cannot be accepted in view of the fact that other Prosecution witnesses namely PW3 Ram Kishan and PW4 Somnath who allegedly remained with the Accused for a long time were not able to identify him. The said argument of the Defence, in my opinion, cannot be accepted under any circumstances. The fact that one witness could not identify Accused Prem Singh before the court cannot be a ground to conclude that deposition of the other witnesses who identify him should be rejected. It is also pertinent to mention at this juncture that deposition of PW7 is unrebutted and he was not crossexamined by the Defence and accordingly the prosecution, in my opinion, has been able to establish the presence of Accused Prem Singh in the shop in question at the time of the incident. :46: PW1 Swaroop Santra has also deposed that persons who had entered his shop which included Accused Prem Singh, gave him beatins due to which he fell down and the Accused persons removed jewellery articles from his hop and when he regain consciousness, he found gold jewellery from his shop missing. Further, PW7 has also deposed that he saw Accused Prem Singh going up to the shop of Vishkarma Jewellery at 36/3089, Beadon Pura, Karol Bagh and identified Accused Prem Singh as one of the said persons. Accordingly, in the light of deposition of aforesaid witnesses, offence punishable under Section 394/34 stands proved against Accused Prem Singh.
Accused Prem Singh has also been charged for offence punishable under Section 25 Arms Act and Section 411 IPC. With regard to the allegations of recovery of countrymade katta with one live cartridge and part of stolen jewellery articles from possession of Accused Prem Singh, Prosecution relied upon deposition of PW9, 11, 17, 22 24 and 27. It was contended by Ld. APP that on the basis of deposition of aforesaid witnesses, Prosecution has been able to establish that on 10.2.05 PW SI Lekh Singh along with HC Shashi, SI :47: Yashwant, ASI Vijay, HC Krishan and Ct. Vijender were present at bus stand route No. 522, Arya Samaj Road. A secret information regarding presence of Accused Prem Singh near corner of gali 57, Naiwalan, Karol Bagh. Accused was apprehended on the basis of said secret information and desi katta was recovered from his possession. Pursuant to his disclosure statement Ex. PW9/C, Accused led police party to his house at 1726, Gali No. 57, Naiwalan, Karol Bagh and got recovered one gold chain and one gold kara from underneath the mattress. They were separately sealed vide seizure memo Ex. PW9/D and PW9/E. The case property i.e. jewellery articles as well as katta and cartridge were correctly identified by the Prosecution witnesses. The Complainant also correctly identified the recovered jewellery articles when produced before the court. It is also a matter of record that entire recovered case property was also correctly identified by Complainant in TIP proceedings which was proved by PW1 Swaroop Santra.
Ld. Counsel for Accused Prem Singh, however, opposed the Prosecution case contending that no independent public witness was joined during the entire proceedings.
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However, Ld. Defence Counsel for Accused Prem Singh submits that Prosecution has not been able to prove its case against Accused Prem Singh and drew my attention to the deposition of DW3 Gyan Wati. She deposed that in February, 2005 some police officials came to her house and enquired about her son and also gave beatings to her and her family members. DW3 also deposed that the police officials took Accused Prem Singh to Police Station Karol Bagh and they made oral complaint about beatings given to her and family members by police officials and also for lifting the Accused Prem Singh from his house but police officials did not listen them and turned them out of the Police Station . However, on going through her cross examination, it is apparent that DW3 admittedly did not make any written complaint to any higher police authorities or to the court against picking up of her son Accused Prem Singh from her house and her deposition regarding alleged false implication of Accused Prem Singh must, therefore, be discarded in view thereof.
I have considered the rival submissions in the light of evidence on record.
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PW9 deposed that on 10.2.05 on receipt of secret informtion, he along with SI Yashwant, ASI Vijay, HC Krishant, HC Shashi and Ct. Vijender apprehended Accused Prem Singh and from his personal search one countrymade katta loaded with cartridge was recovered from pocket of his pant. He further deposed that ASI Vijay carried out the investigation regarding the recovery of katta from Accused Prem Singh. SI Yashwant (PW22) interrogated the Accused who was arrested vide arrest memo Ex. PW9/B. His personal search was conducted vide memo Ex PW9/A. PW9 further deposed that Accused Prem Singh made disclosure statement Ex. PW9/C pursuant to which they went to the house of Accused Prem Singh at 5th floor, H. No. . 57/1726, Naiwalan and from below the cushion of bed, Accused got recovered one bunch of gold chains and one gold kara. The said jewellery articles were bearing mark GS 22 C. Recovered articles were sealed in two separate pulandas. All the gold chains and gold kara were seized vide memo Ex. PW9/D and PW9/E respectively. PW9 correctly identified the katta as well as jewellery articles recovered at the instance of Accused.
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PW11 HC Shashi Kumar also corroborated the deposition of PW9 and deposed regarding recovery of countrymade katta and the aforesaid jewellery articles at the instance of Accused Prem Singh. He also correctly identified aforesaid case property before the court. PW11 also deposed regarding apprehension of Accused Prem Singh and recovery of countrymade katta from possession of Accused Prem Singh and the aforesaid jewellery articles at his instance.
After going through the evidence on record, I find that Prosecution by way of deposition of above Prosecution witnesses has been able to prove beyond reasonable doubt that countrymade katta and aforesaid jewellery articles were recovered from the possession of Accused Prem Singh. The argument of the Defence regarding non joining of public witnesses also loses its relevance in view of the recent judgment of Hon'ble Apex Court titled as Gurjinder Singh (Supra) and C. Ronald & Anrs. (Supra). Accordingly, in view of the above discussion, Accused Prem Singh is found guilty for offence punishable under Section 394/34 IPC in addition to offence under Section 411 IPC and 25 Arms Act.
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PW1 also clearly identified Accused Ravi Gupta and deposed that he had identified him at Tihar Jail. In his cross examination, he deposed that first of all he saw face of Accused Ram Singh when he entered the shop and Accused Ravi Gupta was also with him. He also deposed that Accused Gopal and Prem Singh had also come there simultaneously. In his crossexamination dated 09.12.09, the witness also clearly deposed that he had seen the Accused persons at the time of incident after which he identified them at the Police Station before TIP was held. He further denied that he had seen the Accused persons in Police Station , therefore, he identified them in Tihar Jail. In these circumstances, keeping in view the fact that witness not only correctly identified Accused Ravi Gupta in court and Prem Singh in TIP proceedings clearly establishes the case of the Prosecution in so far as offence punishable under Section 394 is concerned. Further, PW7 also clearly identified Accused Prem Singh and Ravi Gupta as the person whom he had seen on the day of incident at the staircase of the shop. Accordingly, in the light of the deposition of PW1 and 7, as aforesaid, I find that Prosecution has been able to :52: establish its case against Accused Ravi Gupta and Prem Singh for offence punishable under Section 394 is concerned. However, since none of the Prosecution witnesses have deposed that Accused Ravi Gupta and Prem Singh were either armed with any deadly weapon at the time of commission of offence or that if any deadly weapon was used by them at the time of committing robbery in question, charge for offence punishable under Section 397 IPC cannot be sustained against them. In so far as Accused Ravi Gupta, Prosecution relied upon PW8 SI Baljeet Singh, PW9 SI Lekh Singh, PW11 HC Shashi Kumar and PW17 HC Sanwar Mal. All the said PWs deposed that pursuant to receipt of secret information on 10.2.05, Accused Ravi Gupta was apprehended and from his possession one katta having one live cartridge was recovered. Public persons were requested to join the proceedings. Pursuant to his disclosure statement Ex. PW9/A, one kara was recovered having mark GS 22C at the instance of said Accused, which was correctly identified by Complainant and other recovery witnesses during trial. The recovery of countrymade pistol and cartridge was also stated to be proved by the Prosecution from the :53: possession of Accused Ravi Gupta.
Accused Ram Bishan @ Vishnu, Tarkeshwar, Bharat, Ravinder and Sachin: As regards remaining Accused persons, it is clearly borne out on going through the deposition of PW1, 3 and 7 that none of the said witnesses have identified any other Accused person nor it is the case of the Prosecution that more than four offenders were present at the time of commission of offence. In these circumstances, there is no evidence whatsoever on record against remaining Accused persons to this extent. Charges for offence punishable under Section 394/397 IPC cannot be sustained against remaining Accused persons.
The above Accused persons besides the aforesaid charges have also been charged for offence punishable under Section 411 IPC for having been found in possession of the jewellery articles allegedly stolen from the shop of the Complainant.
In order to prove the recovery of one gold kara from possession of Accused Sachin, the Prosecution relied upon deposition of PW9 SI Lekh Singh, PW11 HC Shashi Kumar and PW22 Insp. :54: Yashwant. All the Prosecution witnesses deposed that pursuant to disclosure statement of Accused Sachin, he led the police party to his house at Adarsh Nagar at first floor and from his house from under the cushion, he got recovered one bracelet which was seized at the spot vide seizure memo Ex. PW11/A. The case property i.e. kara was correctly identified by the Complainant PW1 as well as by the aforesaid PWs namely PW9 SI Lekh SIngh, PW11 HC Shashi Kumar and PW22 Insp. Yashwant.
Further, the recovery of gold kara at the instance of Accused Tarkeshwar is stated to be proved by deposition of PW9 and
11. Both of them deposed that from the possession of Accused Tarkeshwar, one kara was recovered which was identified by the Complainant and other PWs.
At this stage, it is necessary to mention that I am not able to agree with the submissions of Ld. Defence Counsel that recovery of alleged gold kara at the instance of Accused Ravi Gupta has not been proved by Prosecution beyond reasonable doubt in view of the cross examination of PW8 who deposed in his presence no jewellery was :55: recovered from Accused Ravi Gupta or Accused Tarkeshwar. In view of the deposition of PW22 SI Yashwant that custody of Accused Ravi Gupta was handed over to him by SI Baljeet who was investigating another case against Ravi regarding recovery of katta. PW22 deposed that he interrogated Accused Ravi and arrested him vide arrest memo Ex. PW9/J. Accused Ravi produced a golden colour kara from the pocket of his wearing pant o which GS22C was written which was seized vide memo Ex. PW9/L bearing signatures of PW22 SI Yashwant and signatures of Accused Ravi at point D1. The said recovery memo does not bear signatures of SI Baljeet.
The recovered jewellery articles i.e. kara recovered from the possession of Accused Ravi Gupta and the countrymade pistol were correctly identified by the aforesaid recovery witnesses examined by the Prosecution at the time of their deposition before the court when the case property was shown to the said witnesses. The sanction for Prosecution in respect of countrymade pistol recovered from the possession of Accused Ravi Gupta was duly proved by PW8. The same is Ex. PW23/B. :56: In view of the above discussion, I am of the considered opinion that charge for offence punishable under Section 411 IPC and 25 Arms Act also stands duly proved on record as against Accused Ravi Gupta.
Reliance has been placed on deposition of PW11 HC Shashi Kumar and PW 12 HC Hari Bhushan in order to establish the recovery of stolen jewellery articles from Accused Ram Bishan, Ravinder and Bharat . It is contended by Ld. APP that PW11 categorically deposed that Accused Ram Bishan was apprehended at the instance of secret informer and he was at that time accompanied by Accused Ravinder who was also apprehended at the spot. Accused Ram Bishan made disclosure statement Ex. PW11/B while Accused Ravinder Singh made disclosure statement Ex. PW11/C. Accused Ram Bishan led the police party to his house at J34, Gali No. 41, Beadon Pura, Karol Bagh and from the loft of his room, Accused Ram Bishan got recovered one kara of 55 grams. He also got recovered one kara of about 56 grams at the spot. Seizure memo of both karas is Ex. PW11/H and PW11/I respectively.
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PW11 also deposed that Accused Ravinder got recovered one katta loaded with one cartridge. One gold kara is also stated to have been recovered from possession of Accused Ravinder as per deposition of PW10 and PW11. The aforesaid articles were correctly identified by the Complainant before court as well as during TIP proceedings. The countrymade pistol and cartridge was recovered from Accused Ravinder was correctly identified before court by PW11. PW11, 12 and 13 were also examined in order to establish recovery of one bracelet from Accused Ravinder at the instance of Accused Bharat. Relying on the deposition of aforesaid witnesses, Ld. APP strongly argued that allegations of offence under Section 411 IPC stands duly proved against above named Accused and the offence under Section 25 Arms Act was also established as against Accused Ram Bishan, Ravinder and Bharat.
On the other hand, Ld. Defence Counsels vehemently argued that case of the Prosecution has not been proved beyond reasonable doubt. Admittedly, no independent public witness was joined to the alleged recovery either of the jewellery articles or :58: unlicenced arms from possession of above named Accused has been examined.
Ld. Defence Counsel representing Accused Sachin argued that Prosecution has failed to establish that Accused Sachin Verma @ Ashu has dishonestly retained one gold kara belonging to the Complainant Swaroop Santra and same was recovered on 10.2.05. It was further contended that as no public witness was joined in the investigation nor produced in the witness box and hence, deposition of the police witnesses i..e PW9 to PW22 regarding recovery of said articles at the instance of Accused Sachin is liable to be rejected.
I have considered the aforesaid arguments and gone through the deposition of the relevant witnesses. PW9 deposed that Accused Sachin made disclosure statement Ex. PW9/H pursuant to which one gold kara was recovered from his house which was correctly identified by the witness. PW11 also corroborated the deposition of PW9 and deposed that one gold kara bearing mark GS22C was recovered at the instance of Accused Sachin. The deposition of PW22 SI Yashwant is also on similar lines. The case property recovered at the :59: instance of Accused Sachin was also produced before the court and correctly identified by other Prosecution witnesses. The arguments as regards nonjoining of public witnesses and reliance solely on police witnesses to prove of stolen articles must be rejected in view of the above discussion and judgments already cited herein above. In view of the deposition of said Prosecution witnesses, I am, thus of the considered opinion that Prosecution has been able to prove beyond reasonable doubt that one gold kara belonging to the Complainant was recovered from possession of Accused Sachin and hence charge for offence punishable under Section 411 IPC stands duly proved against said Accused.
It is also pertinent to note that Accused Sachin examined DW6 in his defence who stated that Accused Sachin is her husband. She deposed that in the first week of February, 2005 police officials came to her matrimonial house and told that they were taking Accused Sachin to Police Station Karol Bagh for some enquiry and after sometime, he would be released. However, no complaint against false implication of Accused was either produced or proved by witness. :60: Rather, she deposed in her crossexamination she made no complaint against the said alleged act on part of police officials. Thus, it is not the case of the Accused that he has been falsely implicated on account of any enmity with the police officials and the plea that he was picked up from his house thus cannot be accepted in the light of the cross examination of defence witness examined by him.
I have considered the arguments advanced on behalf of Accused Ram Bishan @ Vishnu, Ravinder, Tarkeshwar and Bharat. It was argued by Ld. Defence Counsels representing above named Accused that there is delay in recording of FIR and in this regard my attention was drawn to the crossexamination of PW8 who deposed that constable came after 1 ½ house after registration of the case though distance between Police Station and place of incident was 600 meters. It is also stated that no reason has been given by the Prosecution for the said delay in recording of FIR. It was contended by Ld. Counsel for above said Accused that as per Column No. 9 showing gold chain and gold jewellery 100 gms as stolen property.
I have considered the said submissions, However, it is well :61: settled law that FIR is not encyclopedia of the case and may not contain all the facts. In the present case, admittedly approximate weight of the stolen jewellery was informed to the police on next date by partner/Complainant Gopal Kishan Patra as per which 399.3 grams of gold jewelley have been stolen from their shop.
It was next contended by Ld. Defence Counsel representing above named Accused that though as per case of the prosecution, all the arrest were made during day time when public persons were present, despite the same no public person was joined in the investigation nor produced in the witness box. Reliance was placed on the following judgments in support of the arguments that when public persons are not joined in the investigation despite the fact that they are available, it is serious lapse in the case of the prosecution.
I have considered the said submissions, however, in view of the recent pronouncement of Hon'ble Supreme Court referred herein above i.e. Gurjinder Singh (Supra) and C. Ronald & Anrs. (Supra), I find that relying on police witnesses and nonexamination of public witnesses cannot be said to be fatal to the case of the prosecution, if the :62: deposition of the police witnesses is found to be credible and trusthworhty. In the present case, despite lengthy crossexamination, Defence has not been able to shake the deposition of the recovery and arrest witnesses examined by the Prosecution and hence, there is no ground to disbelieve their testimonies.
It was further contended that no steps were taken by Prosecution to ensure that alleged jewellery articles were made of gold. In this regard, I find that recovered jewellery articles were found bearing mark GS22C, which was mark of the jewellery shop of the Complainant and the argument that Investigating Agency did not confirm whether jewellery articles were infact of gold or not com completely loses its significance.
After considering the arguments advanced by Ld. Defence Counsel, Ld. APP and after going through the evidence on record, I am, therefore, of the opinion that Prosecution has been able to establish its case against Accused Ram Bishan @ Vishnu, Ravinder, Ravi Gupta, Tarkeshwar and Bharat.
Accused Tarkeshwar has been charged for offence :63: punishable under Section 411 IPC. The argument with regard to non examination of public witnesses at the time of alleged recovery of gold kara at the instance of Accused Tarkeshwar have already been dealt hereinabove. Recovery of gold kara at the instance of Accused Tarkeshwar have been proved by PW8 SI Baljeet Singh, PW9 SI Lekh Singh and PW11 HC Shashi Kumar who not only deposed regarding recovery of kara at the instance of Accused Tarkeshwar from possession of Accused, but also correctly identified the said kara when produced before the court.
In the light of the evidence on record, Accused Tarkeshwar is accordingly convicted for offence punishable under Section 411 IPC. Insofar as Accused Ram Bishan @ Vishnu, Ravinder, Bharat are concerned, the recovery of the respective jewellery articles at their instance has been established on record by the Prosecution witnesses including PW11 HC Shashi Kumar, PW12 HC Hari Bhushan and PW22 SI Yashwant. The aforesaid witnesses not only consistently deposed regarding recovery effected from possession of aforesaid Accused, but also correctly identified the recovered jewellery articles when shown to :64: them during their deposition before the court. The witnesses examined in their Defence by Accused Bharat, Ram Bishan @ Vishnu and Ravinder namely DW7 Dinkar Patil, DW8 Raj Kumar and DW9 Munna Singh.
I have also gone through the deposition of DW7 Dinkar Patil who deposed that Accused Bharat was picked up from his shop by 45 police officials about 56 years ago and they took Accused Bharat with them to Police Station Karol Bagh. In his crossexamination, he deposed that Accused Bharat had no enmity with police officials. He further stated that he did not make any complaint to either police authority or to the court regarding arrest of Accused Bharat in this case. Similarly, DW8 Raj Kumar who deposed regarding picking of his brother Ram Bishan @ Vishnu from his shop on the night of 05.2.05 also denied any previous enmity of Accused with police officials. He also stated that he did not make any complaint to either police authority or to the court regarding false implication of his brother in this case. Similarly, DW9 Munna Singh who also deposed that his brother Ravinder was taken to Police Station Karol Bagh along with him and :65: detained for the whole night clearly stated in his crossexamination that Accused Ravinder had no enmity with police officials nor he made any complaint to either police authority or to the court regarding apprehension of his brother by the police.
On going through the deposition of the aforesaid DWs, it is thus amply clear that no ground has been shown for alleged false implication of said Accused in the present case. Admittedly, there was no previous enmity with any of the police officials nor any other reason has been cited for their false implication. Further, the plea of the defence witnesses that Accused were lifted from their houses also cannot be accepted keeping in view their crossexamination as per which they chose to remain quiet till date regarding said alleged false implication of the Accused persons and did not even take any steps in this regard.
Hence, in view of the above discussion, I am of the considered opinion that offence under Section 411 IPC stands proved on record as against Accused Ram Bishan @ Vishnu, Ravinder, Bharat and Tarkeshwar beyond any reasonable doubt and they are accordingly :66: convicted for the same. Since sanction for Prosecution in respect of katta recovered from the possession of Accused Ravinder has neither been produced, nor proved, Accused Ravinder who has been charged for offence punishable under Section 25 Arms Act in addition to charge for offence punishable under Section 411 IPC, stands acquitted for offence punishable under Section 25 Arms Act. Further, Accused Sachin, Tarkeshwar, Gopal, Bharat, Ravinder, Ram Bishan @ Vishnu are also hereby convicted for offence punishable under Section 411 IPC.
In the final analysis, in the light of the above discussion and the evidence on record, Accused Prem Singh, Ram Singh and Ravi Gupta are convicted for offence punishable under Section 394/411/34 IPC besides offence punishable under Section 25 Arms Act in cases FIR No. 84/05, 86/05 and 85/05 respectively. Accused Bhim Singh is hereby acquitted of all charges in view of the above discussion. Further, Accused Sachin, Tarkeshwar, Gopal, Bharat, Ravinder, Ram Bishan @ Vishnu are also hereby convicted for offence punishable under Section 411 IPC. Let Accused persons be heard on the point of sentence. :67: Announced in the Open Court on 25.8.2012 (Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
:68:In the Court of Ms. Kaveri Baweja Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
I) Sessions Case No. : 150/2009 & 154/2009
Case arising out of:
FIR No. : 72/05
Police Station : Karol Bagh
Under Section : 395/412/397/34 IPC
State versus 1) Prem Singh @ Prem
S/o Sh. Ram Prasad
R/o 57/1726, Naiwalan
Karol Bagh, New Delhi
2) Sachin Verma @ Ashu
S/o Sh. Pawan Kumar
R/o D29, Ranpratap Road
Adarsh Nagar, New Delhi
Also at: A32 Majlis Park
Adarsh Nagar, New Delhi
3) Tarkeshwar @ Bittoo
S/o Sh. Jagpati
R/o C152 Sarai Peepal
Pala
Adarsh Nagar, New Delhi
4) Ravi Gupta @ Ravi
S/o Late Sh. Devnandan
:69:
Gupta
R/o C152 Sarai Peepal
Pala
Adarsh Nagar, New Delhi
5) Gopal
S/o Sh. Arjun Singh
R/o Bapa Nagar, Padam
Singh Road V & PO
Lakhmohna
Nemdarganj Police Station
Akbarpur Distt. Nabadar,
Bihar
6) Bharat
S/o Sh. Tuka Ram
R/o A31, Shastri Nagar
Police Station Sarai
Rohila, Delhi
7) Ravinder Singh
S/o Sh. Devtadeen Singh
R/o H. No. J34/41 Beadon
Pura Karol Bagh, New
Delhi
Also At: V & PO Belma
Mohd. Pur Police
Station Gambhir Pur
Distt.
Azamgarh, UP
:70:
8) Rambishan @ Vishnu
S/o Sh. Dhaniram Singh
R/o H. No. J34/41 Beadon
Pura Karol Bagh, New
Delhi
Also At: V & PO Belma
Mohd. Pur Police
Station Gambhir Pur
Distt.
Azamgarh, UP
9) Ram Singh
S/o Sh. Bindeshwari Singh
R/o Basement Stuti
Building
Bank Street, Karol Bagh
Also At: V & PO Srijan
Pur
Bishaham Police Station
Gambhir Pur Distt.
Azamgarh, UP
10) Bhim @ Sagar
S/o Sh. Rajdev
R/o Village Ubarpur
Police Station Gambhir
Pur
Distt. Azamgarh, UP
AND
II) Session Case No. : 151/09
:71:
Case arising out of:
FIR No. : 86/05
Police Station : Karol Bagh
Under Section : 25 Arms Act
State Versus Ram Singar @ Ram Singh
S/o Sh. Bindeshwari Singh
R/o 1210, Stuti Building
Basement, Bank Street
Karol Bagh, New Delhi
AND
III) Session Case No. : 152/09
Case arising out of:
FIR No. : 85/05
Police Station : Karol Bagh
Under Section : 25 Arms Act
State Versus Ravi Gupta @ Ravi
S/o Late Sh. Devnandan
Gupta
R/o C152 Sarai Peepal Pala
Adarsh Nagar, New Delhi
AND
:72:
IV) Session Case No. : 153/09
Case arising out of:
FIR No. : 84/05
Police Station : Karol Bagh
Under Section : 25 Arms Act
State Versus Prem Singh @ Prem
S/o Sh. Ram Prasad
R/o 57/1726, Naiwalan
Karol Bagh, New Delhi
Judgment pronounced on : 25.8.2012
ORDER ON SENTENCE:
Vide judgment dated 25.8.12 Accused Prem Singh, Ram Singh and Ravi Gupta have been convicted for offence punishable under Section 394/411/34 IPC besides offence punishable under Section 25 Arms Act in cases FIR No. 84/05, 86/05 and 85/05 respectively. Further, Accused Sachin, Tarkeshwar, Gopal, Bharat, Ravinder, Ram Bishan @ Vishnu have been convicted for offence punishable under Section 411 IPC.
Ld. Counsels for the convicts submit that all the above named convicts are daily wagers and belong to poor strata of society.
It is submitted that convict Ravi Gupta had already remained in custody for 02 years 07 months and 08 days during investigation, :73: enquiry and trial of this case. He is stated to have two minor children besides old aged parents and is stated to be daily wager and sole bread earner of his family.
With regard to Accused Tarkeshwar, it is submitted by Ld. Defence Counsel that he has already remained in custody for about 02 years and 06 months in this case. It is stated that he has no previous conviction. He is working as a Waiter with a Caterer and has old aged parents and wife to support. It is stated that he is sole bread earner of his family and a prayer for lenient view is made.
With regard to convict Bharat, Ld. Defence Counsel submits that he is poor labourer and has already remained in custody for 25 days in the present case. He is stated to have sole bread earner of his family comprising of wife, three children and old aged parents.
Similarly, in respect of convict Ravinder, Ld. Defence Counsel submits that he has already remained in custody for 02 years, 03 months and 22 days. He is stated to be sole bread earner of his family comprising of old aged parents and four daughters.
Convict Ram Bishan @ Vishnu is stated to have already remained in custody for 02 years and 07 months during investigation, enquiry and trial of this case. It is further stated that he has one minor child, wife and old aged parents to support. He is working as a labourer on daily basis and submitted that lenient view be taken against him.
Convict Sachin is stated to be 35 years of age having no previous conviction. His family comprises of 02 children. :74:
Convict Ram Singh is stated to have remained in custody for approximately 05 years in this case. He has old aged mother to support.
Convict Prem Singh is stated to have remained in custody for 2 ½ years in this case. He is stated to be recently married (06 months) having wife, two sisters and old aged mother to support. It is stated that the convict has no previous involvement in any case. A prayer for releasing him for the period already gone by him in custody is made.
With regard to convict Gopal, Ld. Defence Counsel submits that he was 20 years old at the time of commission of offence. He is stated to be first time offender having no previous involvement.
Ld. Defence Counsel also relied upon several judgments including judgment titled as Sumer and Ors Vs State of Haryana 2009 (3) RCR (Criminal) 453 in support of his arguments that convict Gopal is statutorily entitled to be released on probation as he was below aged of 21 years at the time of commission of offence in question.
On the other hand, Ld. APP opposed the submissions of Ld. Defence Counsel stating that neither Probation of Offenders' Act nor Section 360 CrPC statutorily entitles convict Gopal to be released on probation on the ground that he was below 21 years of age at the time of commission of offence. He further argued that as per aforesaid provisions a convict is entitled to be released on probation only if at the time of conviction the convict was below age of 21 years. He further submitted that keeping in view the fact that the evidence on record and the allegations against accused Gopal are similar to the other accused :75: who have been convicted under Section 411 IPC, he must also be dealt with on the same lines as the other convicts.
I have considered the rival submissions made and have gone through the aforesaid judgment of Sumer and Ors (Supra).
A careful reading of the said judgment would reveal it has been held in the said judgment that "Keeping in view the facts and circumstances of the case and the factum that appellants were below 21 years 'at the time of conviction' as such statutorily entitled to be released on probation...."
Thus, in the light of the observations in the said judgment, provisions as contained under Section 360 CrPC and Section 6 of Probation of Offenders' Act, I am of the view that claim of convict Gopal to be statutorily entitled to be released on probation as he was below 21 years at the time of commission of the offence under Section 411 IPC, cannot be accepted.
Having regard to the facts and circumstances of the case, the nature and seriousness of offences proved to have been committed by the above named convicts, are hereby sentenced as under:
(i) Convict Prem Singh, Ram Singh and Ravi Gupta are hereby sentenced to Rigorous Imprisonment for a period of 07 years each in addition to payment of fine of Rs. 5000/ for offence punishable under Section 394 IPC. In default of payment of the fine, they shall undergo Simple Imprisonment for 06 months each.
(ii) For offence punishable under Section 411 IPC, convict Prem Singh, :76: Ram Singh and Ravi Gupta are hereby sentenced to Rigorous Imprisonment for a period of 06 months each in addition to payment of fine of Rs. 3000/, in default of payment of fine, they shall undergo Simple Imprisonment for 03 months each.
(iii) For offence punishable under Section 25 Arms Act, convicts Prem Singh, Ram Singh and Ravi Gupta, in view of the recent judgment of Hon'ble Supreme Court in case titled as State of Madhya Pradesh Vs Ayub Khan 2012 VIII SC 418 , are directed to undergo Rigorous Imprisonment for 03 years each in addition to payment of fine of Rs. 3000/. In default of payment of fine, they shall undergo Simple Imprisonment for 03 months each.
iv) Convicts Sachin, Tarkeshwar, Gopal, Bharat and Ram Bishan @ Vishnu who have been convicted for offence punishable under Section 411 IPC are hereby directed to undergo Rigorous Imprisonment for 06 months each in addition to payment of fine of Rs. 3000/. In default of payment of fine, they shall undergo Simple Imprisonment for 03 months each.
All the aforesaid sentences shall run concurrently. All convicts shall also be entitled to benefit of Section 428 CrPC. Copies of judgment and order on sentence be given to all convicts free of cost.
At this stage, Ld. Counsel for convict Gopal, Sachin and Bharat have filed application under Section 389 CrPC for suspension of sentence.
:77:
In view of the submissions made, order on sentence in respect of convicts Gopal, Sachin and Bharat is ordered to be suspended for a period of 60 days or till filing of appeal whichever is earlier subject to funishing personal bond to the tune of Rs. 15,000/ each with one surety in the like amount.
Announced in the Open Court on 14.9.12 (Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi