Delhi District Court
Fir No. 918/04; State vs . Rajeev @ Rinku & Ors. Page 1 Of 30 on 23 December, 2014
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE No. 56/13
FIR No. : 918/04
P.S. : Shalimar Bagh
U/S: : 392/397/412/34 IPC
STATE
Versus
(1) RAJEEV @ RINKU
s/o Sh. Kishan
r/o VPO Kundal,
PS Khan Khoda,
Distt. Sonipat, (Haryana)
(2) OM PARKASH (PO)
s/o Sh. Inder Pal Singh
r/o VPO Sisoli, PS Bhaira Kallan
Distt. Mujaffar Nagar (UP)
Date of Institution : 28042007
Date of arguments : 18122014
Date of judgement : 23122014
JUDGMENT
1. The case of the Prosecution, in brief, is that on 26102004 on receipt of DD no. 24, PP Pitam Pura, SI Ramesh Dutt, SI Sanjay Nagpal and Ct. Meghpal reached BD68, Pitampura, Delhi where Smt. Pushpa Bhatia gave her statement to SI Ramesh Dutt that she resides FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 1 of 30 at BD68, Pitampura, Delhi with her son Vishu and daughter Kanchan. Her son Vishu was running a jewellers shop by the name of Surabhi Jewellers in gali no. 9, Bidanpura, Karol Bagh. At about 11:30 am, her son went to the shop from the house. At about 12 noon, four young boys in the age group of 2526 years rang the door bell and when they told Kanchan that they had come to check the sewer of the house, she opened the door. All of them came inside the house. One of them of fair complexion having height of 5' 11'' wearing blue jeans and yellow T shirt was having a diary in his hand and he had come earlier also about 15 days back for sewer checking. The other three boys were of wheatish complexion and looking like labour and wearing pantsshirts. After entering the house, they checked the drains for about 5 to 7 minutes and asked the maid Sunita to pour water in the drains. After checking the drains, they asked for signatures in the diary. When she along with her daughter Kanchan and maid Sunita gathered there, they took out two big knives (Chhure), one katta and one saria which were wrapped in newspaper and made all of them to sit on the sofa in the living room and gave threats. They tied their hands behind with the chunnies. They forcibly took out two bangles kadatype, two sleek bangles, two rings and a chain with pendant (of Baba Lalji), two rings (of Pukhraj and Panna) and one chain from the complainant and her FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 2 of 30 daughter and also two rings from maid Sunita. Thereafter, they asked the key of the almirah kept in the bedroom and about the remaining jewellery. When Smt. Pushpa refused to disclose about the same, they threatened her and told that her son Vishu who had went outside the house, had already been kidnapped by them and if they do not reach to their associates with the robbed articles in half an hour then her son would be killed. Due to fear, they handed over the keys of the almirah to them. In the meantime, sweeper Smt. Saroj also came to the house whose hands were also got tied with the chunni and she was made to sit with them. After opening the almirah, they took out Rs. 40,000/ 45,000/ cash, one diamond pendant and some silver coins of Laxmi Ganesh and thereafter they ran away from the back door of the house. Complainant and other victims somehow managed to untie themselves and talked to her son Vishu on telephone who had reached at his shop and was fine. In their conversation, besides the boy of fair complexion, other three boys were speaking Jat type language and were using abusive language. On checking almirah, it was found that four-five chains were also missing.
2. It is further the case of the prosecution that on 26.10.2004, Crime Team along with Dog Squad were called at the spot and it was photographed. FIR u/s 392/397/34 IPC was got registered and further FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 3 of 30 investigation was assigned to SI Sanjay Nagpal who prepared site plan and recorded the statements of witnesses and also made efforts to trace out the accused persons. After the transfer of SI Sanjay Nagpal, the investigation was assigned to Inspector P.K. Sharma. On 15.02.2005, Inspector R.A. Meena, Addl. SHO from PS Bawana informed through telephone at PP Pitampura that accused arrested in FIR no. 57/05 u/s 186/353/307/34 IPC and 25/27 of Arms Act PS Bawana, disclosed about their involvement in the present case. Thereafter, IO collected the copies of disclosure statements of accused Som Pal, Rajeev @ Rinku, Raj Bahadur, Om Prakash and Mukesh in case FIR no. 57/05. The accused persons also disclosed that they committed the crime along with their associates Krishan Pal and Dharmesh. Further investigation was assigned to SI Mohar Singh who on 18.02.2005 after taking permission of Ld. MM, arrested the accused Rajeev @ Rinku, Mukesh, Om Prakash, Sompal and Raj Bahadur in this case. Accused Dharmesh could not be traced out in absence of his complete address. Accused pointed out the place of occurrence and they disclosed that accused Krishan Pahalwan was having katta and accused Rajeev @ Rinku was having knife at the time of commission of offence and they distributed the booty among themselves. Four coins robbed by the accused persons in this case were recovered from the house of the FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 4 of 30 accused Mukesh in case FIR no. 57/05. Accused persons refused to join TIP proceedings. Accused Krishan Pahalwan who was running in J/C in case FIR no. 40/05 u/s 18/20 of NDPS Act, PS Adarsh Mandi, Distt. Mujaffar Nagar, UP was produced on production warrants and with the permission of court, he was arrested in this case. During judicial TIP, complainant could not identify accused Krishan Pahalwan. After completion of the investigation, chargesheet was filed against accused Rajeev @ Rinku and Om Prakash u/s 392/397/34 IPC while accused Krishan Pahalwan, Mukesh, Sompal and Raj Bahadur were kept in column no. 2.
3. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 395 IPC was framed against the accused Rajeev @ Rinku and Om Prakash and notice u/s 397 IPC was also framed against accused Rajeev @ Rinku separately to which they pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined 17 witnesses. PW1 Ct. Rajesh & PW3 Ct. Vinod Kumar in their testimonies exhibited pointing out memos of accused persons vide Ex. PW1/A1 to A5. PW4 Smt. Pushpa Bhatia, in her testimony exhibited her statement Ex. PW4/A. PW5 Ms. Kanchan, in her testimony identified four silver coins having LaxmiGanesh engraved on as Ex. P1 FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 5 of 30 (colly.). PW7 HC Vikas Kumar, in his testimony exhibited the copy of DD no. 24 as Ex.PW7/A. PW8 Inspector Sanjay Nagpal, in his testimony exhibited the site plan as Ex.PW8/A, crime team report as Ex. PW8/B and the photographs as Ex.PW8/C1 to C10. PW9 ASI Rajender, in his testimony exhibited the copy of FIR as Ex. PW9/A and rukka as Ex. PW9/B. PW12 Ct. Dalbir Singh, in his testimony exhibited the negatives of photographs of the spot as Ex. PW12/A1 to Ex. PW12/A10 and photographs as Ex.PW12/B1 to Ex.PW12/B10. PW13 Ct. Krishan Kant and PW14 ACP Ram Avtar Meena in their testimony exhibited the disclosure statement of accused Rajeev @ Rinku as Ex.PW13/A and disclosure statement of accused Om Prakash as Ex.PW13/B. PW15 SI Mohar Singh, in his testimony exhibited the arrest memos of accused Om Prakash, Rajeev @ Rinku, Mukesh, Sompal and Raj Bahadur as Ex.PW15/A to PW15/E respectively; personal search memos of accused Om Prakash, Rajeev @ Rinku, Raj Bahadur, Mukesh and Sompal as Ex. PW15/F to PW15/K respectively. PW15 also exhibited the disclosure statements of accused Om Prakash, Rajeev @ Rinku, Raj Bahadur, Sompal and Mukesh as Ex. PW15/L to Ex. PW15/P respectively and arrest memo of accused Kishan Pahalwan as Ex.PW15/Q. PW17 Ms. Archana Sinha, Ld. ADJ, Rohini Courts, Delhi, in her testimony exhibited her endorsement on the application for FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 6 of 30 TIP of accused Kishan Pahalwan as Ex. PW17/A moved by IO SI Mohar Singh, TIP of accused Kishan Pahalwan as Ex.PW17/B, her certificate as Ex.PW17/C, application of IO for supply of copies of TIP vide her endorsement as Ex.PW17/D. PW17 also exhibited her endorsement on the application for TIP of accused Rajeev @ Rinku, Mukesh, Som Pal, Om Prakash and Raj Bahadur as Ex. PW17/E and she proved the TIP proceedings as Ex. PW17/F, PW17/G, PW17/H, PW17/J and PW17/K respectively; certificate in this regard as Ex. PW17/F1, G1, H1, J1 and K1 respectively and her endorsement as Ex. PW17/L vide which she allowed the copies of the TIP proceedings for IO.
5. Statements of both the accused persons were recorded u/s 313 Cr.P.C. therein they denied all the allegations made against them. Both accused opted to lead defence evidence. Accused Om Prakash in his defence, examined Sh. Kiran Pal as DW1 and Sh. Jialuddin as DW2 and thereafter accused Om Prakash absconded and was declared PO vide order dt. 17.10.2014. Accused Rajeev @ Rinku in his defence, examined Sh. Rajesh Kumar as DW3 and Sh. Sunil Aggarwal as DW4.
6. I have heard the Ld. Counsel for the accused Rajeev @ Rinku and Ld. Addl. PP for the State and have perused the entire records.
7. The Ld. Counsel for the accused Rajeev @ Rinku argued FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 7 of 30 that as per FIR, there were four persons. Twenty one witnesses have been cited and four had been dropped. If the four witnesses already dropped would have been produced by the prosecution, they could not support the case of the prosecution. PW1 Ct. Rajesh is a formal witness, according to him, no public witness was joined by the IO. This is a game plan of PS Shalimar Bagh and Bawana. No pointing out memo was even made by the complainant or by the accused. The place of occurrence was situated in thickly populated area but no efforts were made to join the public witnesses. PW1 & PW3 have given contradictory statements for recording of statements by the IO. PW2 stated that site plan was prepared at the instance of Smt. Pushpa Bhatia. Whereas, PW Smt. Pushpa Bhatia has never stated that site plan was prepared at her instance. Seizure memo of Hindi newspaper "Amar Ujala" is nowhere on record meaning thereby the said newspaper was not found at the spot. IO does not say that the seizure memo of the newspaper was prepared. PW3 Ct. Vinod Kumar is the witness of pointing out memo. This is no identification as stated by PW3 in the eyes of law. PW4 is the complainant and she is very important witness in this case. After tying the hands behind, bangles and rings could not be removed. The statements of PW4, PW5 and PW6 are contradictory to each other. If PW4, PW5 and PW6 could have been present at the time of incident, FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 8 of 30 then such major contradictions would not have been there. The Ld. Predecessor court raised the objection why person already known was kept in column No. 2. Showing of the knife in the statement of PW4 is the improvement which was not mentioned in the FIR. Wire of telephone connection was disconnected and broken is also an improvement from previous statement. There were four persons in all as per the case of the complainant. After 7 years of the incident, the statement of PW4 was recorded in the Court. She has neither told anything specific about the accused Rajeev @ Rinku nor identified him. Court observation is also there in this regard. Mere stating that she had undergone eye operation is not sufficient but the prosecution has to place documents of treatment, meaning thereby inference can be drawn that this witness did not see this accused at the time of occurrence. The Ld. Counsel for the accused also argued that the prosecution has not proved any seizure memo of the coins. Even, silver coins have not been identified by any witness. Therefore, there is no evidence to the silver coin. The accused was shown to PW4, PW5 and PW6 in the PS. In the FIR, it is stated that after half an hour of leaving her brother but in her statement in the court, PW5 stated that after about 4/5 minutes of leaving her brother. The whole case hinges on the point of identification but there is no identification of the accused. PW5 specifically stated FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 9 of 30 about Mukesh but no descriptions were stated in the FIR, then identification of the accused Rajeev @ Rinku after seven years has no meaning. PW5 is silent about what the said accused did at the time of incident. There is also contradiction of cash amount of Rs. 50,000/ and Rs. 1,13,000/. In every house, such silver coins are available. There is no evidence of entry in register No. 19 about the said four coins. PW6 stated that she was outside the house whereas PW4 stated that she was inside the house. There are contradictions between the testimonies of PW4, PW5 and PW6 regarding what was wrapped in the newspaper. None of other witnesses have stated that all the four persons took out the weapon. All the three witnesses PW4, PW5 and PW6, in their statements before the police, did not specify about the role of the accused Rajeev @ Rinku.
8. The Ld. Counsel for the accused Rajeev @ Rinku further argued that there is a gap of 4/5 months in the arrest of accused. The case has been made out against the accused on the basis of disclosure statement Ex.13/A at PS Bawana. The other disclosure statement Ex. PW15/M dt. 31.05.2013 of the accused which was recorded in this case PS Shalimar Bagh. Both the witnesses are the constables and they have not signed it. It is a false document. If the disclosures statement has not led any recovery then it has no evidentiary value in the eyes of FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 10 of 30 law and the same is hit by Section 25 of the Evidence Act. There is nothing on record that the disclosure statements of PS Bawana were handed over to IO of this case. DD no. 13 has not been proved on record which is very important. PW15 nowhere mentioned that from PS Bawana to Tis Hazari Courts, the accused persons were in muffled faces meaning thereby they were unmuffled and eyewitness Sunita was with PW15. In TIP Ex.PW17/F, accused was produced in unmuffled face. During PC remand, it was the duty of the IO to keep the accused in muffled face. Nothing was recovered from the accused. The accused was not identified by Smt. Pushpa Bhatia. First time identification in the court is no identification. The accused was taken unmuffled by Bawana police. PW6 accompanied every time with PW4 and even in the PS and the accused Rajeev @ Rinku was shown to PW6 in the PS, therefore, accused refused to join the TIP since he was already shown in the PS. PW6 went twice outside the house. PW6 stated that Mukesh was not among four persons. Whereas, other witnesses have stated something else. There are improvements in the testimony of PW6. PW6 is a false witness since she was not the eyewitness. PW8 SI Subhash never appeared before the court since he expired. Crime team report is Ex. PW8/B which was wrongly exhibited. Ct. Dalbir Singh has not singed it. Negatives are not on record, therefore, exhibits of the photographs FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 11 of 30 cannot be read in evidence. There are contradictions in the testimony of PW8 and PW2 regarding newspaper. PW6 Sunita and PW5 Kanchan nowhere stated that sketches were prepared. Only sealed pullanda was received and not the seizure memo. Further, no road certificate was issued for carrying the pullanda. As per FIR, there is no recovery from accused in this case. The Ld. Counsel for the accused further argued that there is no public witness to the site plan, disclosure statements, pointing out memos. Section 391 IPC itself is clear that five persons should have been there and conjointly committed the offence of dacoity or aided such offence. In the present case, only two persons were facing trial and by no stretch of imagination, the ingredients of section 395 IPC are attracted since no role of the accused has been ascribed. In the absence of any specific act or aid, the accused cannot be convicted. The accused is an innocent person and he has been victimised by the Bawana police. Vide judgement dated 14012011, accused Rajeev @ Rinku, Raj Bahadur, Mukesh, Om Prakash and Sompal have been acquitted by the court of Ms. Barkha Gupta in case FIR no. 57/05, PS Bawana. In the present case, the IO has not conducted fair investigation and the accused Rajeev @ Rinku has been falsely implicated in this case. In support of his arguments, Ld. counsel for accused relied upon the judgements reported in the case of Subhash FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 12 of 30 and Shiv Shankar Vs. State of UP, AIR 1987 SC 1222; Prabhoo Vs. State of Uttar Pradesh, AIR 1963 SC 1113 (V 50 C 167); Balappa Vs. State of Karnataka, 2005 CRI.L.J. 2346; Lila Ram Vs. State, 1990 (2) CC Cases 402 (HC); Ramjan Vs. The State of Haryana, 1988 CC Cases 334 (HC); Habal Shaikh and another Vs. The State, 1991 CRI.L.J 1258; Sukhbir Singh and another Vs. State of Punjab (2011) 11 SC Cases 436; Molhay and Anr. Vs. State of UP, 2011 CRI.L.J 535; Mohd. Abdul Hafeez Vs. State of Andhra Pradesh, AIR 1983, SC 367; Kanan and others Vs. State of Kerala, 1979 CRI.L.J. 919; Latel Vs. State of MP, 1994 CRI.L.J. 1122 and Reechchoo Hemraj Vs. State of MP, 1981 MPLJ 457.
9. The Ld. APP for State argued that the FIR is not an encyclopaedia which may narrate each and every fact of the case. The accused along with his associates in broad daylight entered in the house of complainant with weapons. They tied hands of complainant, her daughter and maid and then took out jewellery worn by them forcibly. Thereafter, accused persons threatened that if keys of almirah were not given, they would kill complainant's son on the false pretext that he was kidnapped. The accused persons took out Rs. 40,00045,000/ cash, one diamond pendant and some silver coins of LaxmiGanesha and ran away from there. The accused were arrested in FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 13 of 30 some other case and they disclosed about their involvement in the present case. Accused persons pointed out the place of occurrence. Silver coins were recovered from the house of accused Mukesh. Accused persons refused for TIP. The PWs have supported the prosecution case. There are minor contradictions in the testimonies of PWs which do not go to the root of the case. The accused persons cannot take benefit of minor contradictions or faulty investigation, if any. Public persons generally do not come forward to become part of criminal cases. The prosecution has been able to prove its case by way of ocular and documentary evidence. There is sufficient material on record against the accused persons to convict them. Ld. APP for the State, in support of her arguments, relied upon the judgements reported in the cases of Paramjeet Singh @ Pamma Vs. State of Uttarakhand, AIR 2011 SC 200 and Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920.
10. In view of the above arguments of the Ld. counsel and Ld. Addl. PP for State, let us examine the evidence led in this case as to whether the accused had committed the offence as charged or whether he has been falsely implicated. As per chargesheet filed by the IO, there were four boys who entered in the house of complainant and made the complainant, her daughter and maid servant sitting on the FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 14 of 30 sofa and tied their hands behind with the chunnies. Currency of Rs. 40,00045,000 along with the jewellery items and coins were taken away by the accused. PW4 Smt. Pushpa Bhatia/ complainant, in her examination in chief stated that on 26102004, she was present at her house bearing no. BD68, Pitampura, Delhi with her daughter Kanchan and her maid servant. At about 11/ 11:30 am, her son Vishu Bhatia went to his jewellery shop at Karol Bagh and after about two minutes of his leaving, four boys in the age group of 2527 years knocked the door of the gate. Her daughter Kanchan opened the door and those boys told her that they had come to check and clean the sewer. The daughter of PW4 opened the door and those four boys entered in the house. PW4 further stated that about ten days prior to the incident, two of those four boys had also visited her house on account of checking the sewer. One of those boys was working as sweeper in their gali and he used to clean their bathroom also. After entering the house, they pretended to check the sewer. PW5 Ms. Kanchan stated that after about 4/5 minutes of leaving of her brother, four persons came and rang the bell of their house. PW5 opened the door and they asked her to check the sewer and drains. PW5 allowed them to enter the house. PW5 along with her mother were busy in household work and those persons started checking the sewer etc. in the house. PW6 Sunita FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 15 of 30 stated that she was present outside the house where the sweeper of the house namely Saroj was found present. PW6 started talking with her for two minutes. In the meanwhile, four persons came and rang the bell of said house. The daughter of Mrs. Pushpa Bhatia namely Kanchan opened the door and they asked her to check the sewer and drains. She allowed them to enter the house. PW6 also entered in the house and started working. PW6 stated that one of those boys was Mukesh who was working as a sweeper in their galli and used to clean bathrooms etc. the said Mukesh was son of their Sweeper Saroj with whom she was talking. PW6, in her cross examination, deposed that she had stated to the police that Kanchan had opened the door. PW6/Sunita also stated that she was sitting with Saroj outside the main gate of the said house on a platform constructed there. PW6 further stated that she had seen those four persons for the first time on the said date and they were not known to her previously. PW6 admitted in her cross examination that her statement was not recorded and even she had not signed or thumb marked any document before the police. PW6 further stated in her cross examination that the son of Saroj namely Mukesh was not among the said four intruders. However, Mukesh was outside the house at that time. PW4 stated in her examination in chief that the four boys who entered their house were having weapons wrapped in newspapers. FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 16 of 30 One of the boys showed PW4 a knife and asked for the keys of the almirah where jewellery was kept. PW5 Ms. Kanchan stated that one of those boys asked her to sign some papers and he was having newspaper in his hand and when it was opened, one pistol wrapped in the newspaper was taken out by him. PW5 also stated that those persons were having rod, knives (one big knife) and acid with them. PW5 in her crossexamination stated that the accused present in the court did not take out knife. It was taken out by other accused. PW6 stated that one of those boys was having newspaper in his hand and when it was opened, one pistol wrapped in the newspaper was taken out by him. All the four persons took the said weapons in their hands.
11. PW2 HC Meghpal stated that from the spot, one Hindi newspaper "Amar Ujala" was taken into possession by the IO. PW8 stated that PW Kanchan handed over total five pages of Hindi newspaper "Amar Ujala" of Muzzaffar Nagar edition dated 25102004 stated to be brought by accused persons for wrapping the weapon of offence and the same was taken into possession by him. It is the admitted fact that the knife was not shown by the accused Rajiv @ Rinku. PW4 stated in her examination in chief that the four boys took out gold jewellery worn by PW4 and her daughter and seven silver idols, silver coins on which Laxmi and Ganesh were engraved, cash amount FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 17 of 30 of Rs. 1,13,000/, gold chains and karras, diamond ring and diamond pendent. PW5 stated that they took out their wearing jewellery i.e. bangles, rings, chains, ear rings, locket of her mother. Two rings of maid servant were also taken by them. PW5 stated that they also took out silver coins of Ganesh and Laxmi, cash amount of more than Rs. 50,000/, some gold ornaments and other articles which she did not recall. PW6 stated in her cross examination that she did not know as to by what mode and in what manner, the accused took away the looted articles. PW4 in her examination in chief stated that those boys tied the mouths of her daughter and her maid servant also with the dupattas. PW5 stated that when she started raising alarm, the other boy shut her mouth from behind and they all made her, her mother and maid servant to sit on a sofa and they tied their hands with their dupattas. PW5 also stated that in the meanwhile, bell of house rang and PW5 was asked to see as to who had come and also warned her not to disclose about them otherwise, her mother would be killed. PW5 went at the main door and saw the mother of accused Mukesh, namely Saroj, standing on the door. She was also taken inside the house and one of the boys, tied her hands also. They also tied their mouth and hands after taking a bag from them. PW5 stated in her crossexamination that accused persons gave beatings to her mother. PW5 also stated that accused Om FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 18 of 30 Parkash demanded the keys from her mother and these accused persons tied their mouth also. PW6 stated that all the boys made her, Ms Pushpa and Ms Kanchan to sit on a sofa and they tied their hands with their dupattas. PW6 stated in her crossexamination that her hands and legs were tied and she was made to lie in the room. PW4 stated in her crossexamination that those boys left from the back door of their house. PW6 in her cross examination stated that the accused left the house after closing the door, after the incident. PW4 stated that after the four boys left from the back door of their house, they untied their mouth and PW4 raised alarm of "chorchor". PW4 called her son on telephone from the neighbourhood as wires of their telephone were broken by those persons after entering into the house. PW4 again said that her daughter had talked with her son.
12. PW4 also stated that she cannot identify the said persons as she lost vision of her right eye due to operation otherwise, her eyesight was weak. PW4, however, told the name of the person who used to clean their bathrooms and was one of the four persons as Mukesh. The Ld. Court also observed at that time that PW4 was unable to identify the accused as well as case property. During crossexamination, PW4 stated that in the PS, her son had identified one boy namely Mukesh who used to clean over the bathroom. At the time of incident, her FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 19 of 30 eyesight was perfect and she could see each and every person and their activity. PW5 stated that one of those boys was Mukesh, who was working as a Sweeper in their gali and used to clean their bathrooms etc. and other must be his friends. PW5 identified accused Rajeev @ Rinku and Om Prakash by face in the Court but PW5 stated in her crossexamination that Mukesh was standing outside their house and he was not one of the four persons who had entered in the house.
13. DW1 Kiran Pal stated in his examination in chief that on 13022005, accused Om Prakash was lifted from his house by the police at about 11 pm. DW1 along with 1020 persons from the village came to PS Bhorakallan and they asked from the police of PS Bhorakallan the whereabouts of Om Prakash and they informed them that accused Om Prakash was sent to Delhi with Delhi Police. DW1 stated that on 14022005, they came to PS Bawana where they saw 56 persons with Om Prakash and they were shown to some ladies by the police in the PS. They made inquiry from the police who informed that accused Om Prakash was arrested in the case and they were informed that they can tell about this fact in the court. DW1 stated that accused Om Prakash was an agriculturist and he was got lifted from his house by one person namely Ompal who was also resident of their village. During crossexamination, DW1 denied that accused Om FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 20 of 30 Prakash was not lifted from his house by the police. DW2 Jialuddin stated in his examination in chief that accused Om Prakash was his neighbour. DW2 also deposed on the similar lines as deposed by DW1.
14. DW3 Rajesh Kumar stated in his examination in chief that he knows accused Rajiv @ Rinku from the last 1516 years as his father and father of Rinku were employed in DTC and they have family relations since long. Accused Rajiv @ Rinku was doing the business of properties and agriculture and resides at village Kundal, Distt. Sonepat, Haryana about 5 kms. away from his village. DW3 and accused Rajiv th @ Rinku were 12 pass. On 24102004 at about 7 pm, DW3 along with accused Rajiv @ Rinku went to Rewari district to meet Sh. Snil Aggarwal in relation to tea business of Sunil Aggarwal under the name and style "Karak Chai" and also for training purpose and to do tea distribution business in Haryana. They remained there at Rewari till 28102004. on 25102004, DW2 was with accused Rajiv @ Rinku whole day and nearby Rewari area and he did not leave him on 2510204. on 26102004, DW3 and accused Rajiv @ Rinku were together at Rewari. No outsider came to meet them at Rewari. On 27102004, DW3 and accused Rajiv @ Rinku were also present at Rewari. DW4 Sunil Aggarwal stated in his examination in chief that he knows accused Rajiv for the last 1012 years and he also knew father of FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 21 of 30 Rajiv namely Shri Krishan as he was driver in DTC and they were having good relations. DW4 was doing the tea business with the brand name "Kadak" tea. DW4 also stated that father of accused Rajiv informed that accused Rajiv was implicated in a false case and he went to PS where he told IO that accused Rajiv and his friend Rajesh were with him at Rewari from 24102004 to 28102004. During that period, they were sent to market for marketing and advertisement and there was no chance to leave the market for them to go to Delhi.
15. It is evident from the testimonies of PWs and DWs discussed above that PW4/complainant stated that one of the boys entered in the house was Mukesh son of sweeper Saroj. PW4 neither said about the accused Rajeev @ Rinku nor identified him. Neither any description nor any role assigned to the accused Rajeev @ Rinku stated in the FIR. In Kanan and others Vs. State of Kerala, 1979 CRL.L.J. 919, it was held that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to test his powers of observations. The idea of holding T.I. parade u/s 9 is to test the veracity of the witness on the question of capability to identify an unknown person whom the witness may have seen only once. If no T.I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 22 of 30 the identification of an accused for the first time in Court. In Reechchoo Hemraj Vs. State of MP, 1981 MPLJ 457, it was held that mere presence of an accused amongst the robbers is not sufficient. The accused must be shown to have conjointly committed robbery or aided such commission. In Atum Lengmel Vs. Manipur Administration, 1962 (1) Crl.L.J. 168 it was held that "Mere presence of the accused among the raiders who visited the village at night is not sufficient. It is necessary that the accused must be shown to have conjointly committed the robbery or aided such commission. Unless, therefore, it was shown that the accused were in the body of persons who actually went to the houses of persons concerned and extorted money or at least aided in extorting the money, they could not be said to be guilty of dacoity."
16. In Mohd. Abdul Hafeez Vs. State of Andhra Pradesh, AIR 1983 Supreme Court 367, the victim gave no description of accused in FIR. Even, no test identification parade was held. Accused was convicted on his identification in Court by victim four months after offence. It was held that conviction on such evidence was unsustainable. In Subash and Shiv Shankar Vs. State of UP, AIR 1987 Supreme Court 1222, the test identification parade held after delay of four months. Witnesses had not given any description of FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 23 of 30 accused either in FIR or in their statements during investigation. It was held that conviction could not be based solely on such identification and accused was given benefit of doubt. In Lila Ram Vs. State, 1990 (2) CC Cases 402 (HC), it was held that evidence of identification is to be regarded as inherently weak, least to be relied upon, and in itself, an unsafe basis for conviction. Even a mere possibility that the accused was or could have been shown, would be a sufficient justification for refusal to participate in identification proceedings or to reject identification evidence.
17. In Habal Shaikh and another Vs. The State, 1991 CRI.L.J. 1258, it was held that where the witnesses in their statements or in oral evidence neither give any description of the accused whom they alleged to have identified in the commission of crime, nor do the witness give any identification marks, viz stature of the accused or whether they were fat or thin or of a fair or black complexion, it will be unsafe to convict any accused on the basis of a single identification as in such case the reasonable possibility of mistake in identification cannot be excluded. In Molhay and Anr. Vs. State of UP, 2011 CRI.L.J. 535, the accused persons arrested after six months of occurrence and their identification was arranged more than sixty days of their arrest. Delay was not explained. There was no recollection by witnesses of any special FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 24 of 30 identifying feature or any specific role played by each of suspects. Further, there was nothing to show that accused were kept beparda after their arrest. It was held that evidence of identification could not be relied upon and accused were acquitted. In Sukhbir Singh and another Vs. State of Punjab, (2011) 11 Supreme Court Cases 436, there was identification of the accused for the first time in court after about 9 months of occurrence. It was held that though there is no inflexible rule that identification made for first time in court has to be always ruled out of consideration but broad principle is that in absence of no other evidence against accused, identification in court made long after the event is clearly not acceptable. It was further held that description of appellants given in FIR as two Sikh youths 25/30 years of age wearing kurtapajamas would fit millions of youth in Punjab, and could not by itself pin murder on them.
18. PW13 Ct. Krishan Kant stated that in case FIR no. 57/05, PS Bawana, accused Mukesh Kumar, Raj Bahadur, Sompal with accused Rajeev @ Rinku and Om Prakash were apprehended by Inspector Ram Avtar Meena, Addl. SHO, PS Bawana. All accused persons made disclosure statements regarding their involvement in the present case and disclosure statements of accused Rajeev @ Rinku and Om Prakash have been Ex. PW13/A and PW13/B. Nothing was recovered on the FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 25 of 30 basis of the disclosure statements. PW15 SI Mohar Singh stated during TIP, eyewitness failed to identify accused Kishan Pahalwan. In the present case, Krishan Pahalwan was not identified by the complainant during TIP. Even, in the FIR nos. 57/05, 58/05, 59/05 and 60/05 of PS Bawana u/s 307/353/186/34 IPC, the accused namely Rajeev @ Rinku, Raj Bahadur, Mukesh, Om Prakash and Sompal were acquitted vide the judgement dated 14012011 passed by Ld. ASJIV, Outer District, Rohini, Delhi. In Prabhoo Vs. State of Uttar Pradesh, AIR 1963 Supreme Court 1113, it was held that incriminating statements made to a police officer are hit by Section 25 and 26 of the Evidence Act. It is, therefore, wrong to admit in evidence the alleged statement of the accused that the axe had been used to commit murder or the statement that the blood stained shirt and dhoti were his.
19. PW6 also stated that one of those boys was Mukesh. PW6 admitted that neither her statement was recorded nor she signed or thumb marked any document before the police. PW5 admitted that the accused Rajeev @ Rinku did not take out knife. Whereas PW6 stated that all the four persons took the weapons in their hands. PW4 stated that four boys took out cash amount of Rs.1,13,000/ along with other items. Whereas PW5 stated that they took amount of more than Rs. 50,000/ with the other items. PW6 who is stated to be the eye witness FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 26 of 30 could not tell by what mode and in what manner, the accused took away the looted articles. PW5 stated that Ms Saroj mother of accused Mukesh was also taken inside the house and one of the boys tied her hands and her mouth but Ms Saroj has neither been cited as witness nor she has been examined by the prosecution. Further, PW5 stated that accused persons gave beatings to her mother/PW4 but there is no document of her medical treatment. PW4 stated that wires of their telephone were broken by the said persons whereas PW5 stated that wires of telephone were cut by the accused persons. The telephone wires broken/cut have neither been recovered nor proved on record. There are contradictions in the testimonies of PW4,PW5 and PW6. It has not been proved on record that the accused Rajeev @ Rinku was in muffled face from PS Bawana to Tis Hazari Courts.
20. PW11 SI Rakesh Kumar stated that complainant was not traceable for identification of the case property i.e. four silver coins as she had left the house at that time due to said incident. PW6 admitted in her cross examination that police did not seize her chunni. Seizure memo of the said newspaper, coins and chunri of PW6 have not been proved on record. There is no recovery from the accused Rajeev @ Rinku. Case property was neither identified nor placed on record. In Ramjan Vs. The State of Haryana, 1988 CC Cases 334 (HC), it was FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 27 of 30 held that the attesting witnesses gave different version contradicting the articles written in the recovery memos. The presence of the attesting witnesses at the time of alleged recovery held to be doubtful and appellant was acquitted. In Latel Vs. State of MP, 1994 CRI.L.J. 1122, it was held that accused persons alleged to have committed dacoity by causing injuries. There was no material that they participated in dacoity or caused injury to inmates of house including witnesses. Nor any recovery was effected from them. The order of acquittal by trial court was held proper.
21. PW6 stated in her cross examination that Pushpa Bhatia was informed regarding the incident and other neighbours were also outside there respective houses at that time. PW6 admitted that police did not make inquiries from the said neighbours in her presence. In this context, I would place a reliance upon the judgement reported in the case of State of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, the Hon'ble Supreme Court held that the failure of the prosecution to examine independent witnesses though available is fatal for their case. In the present case, DW3 and DW4 stated that accused Rajeev and his friend Rajesh were at Rewari for marketing and advertisement from 24.10.2004 to 28.10.2004. Meaning thereby, the accused Rajeev @ Rinku was not in Delhi at the time of incident. In Vikramjit Singh @ FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 28 of 30 Vicky Vs. State of Punjab, 2007 (1) CC Cases (SC) 35, it was held by the Hon'ble Supreme Court that where two views of a story appeared to be probable, the one that was contended by the accused should be accepted. In Sadhu Singh Vs. State of Punjab, 1997 (3) Crimes 55, the Hon'ble Punjab & Haryana High Court held that in a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbably or lacks 'credibility', benefits of doubt necessarily has to go to accused.
22. In view of my above discussions, I am of the considered opinion that Prosecution has failed to prove its case against accused Rajeev @ Rinku beyond reasonable doubt. I, therefore, give benefit of doubt to the accused. Accordingly, accused Rajiv @ Rinku is acquitted. His bail bonds are extended for a period of six months u/s 437A Cr.P.C. File be consigned to Record Room with liberty to prosecution to revive the case file as and when PO accused Om Prakash and absconding accused Dharmesh @ Pappu are arrested and produced before the court.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:
NW03:ROHINI:DELHI. ANNOUNCED IN THE OPEN COURT FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 29 of 30 on 23122014 FIR No. 918/04; State Vs. Rajeev @ Rinku & Ors. Page 30 of 30