Delhi District Court
Special Judge : Ndps2 : (Central) vs Durgesh Chobey on 6 August, 2016
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IN THE COURT OF SH. NARINDER KUMAR
SPECIAL JUDGE : NDPS2 : (CENTRAL)
TIS HAZARI COURT:DELHI
SC No. : 61/12
FIR No. : 87/12
PS : Kotwali
U/s. : 392, 395, 398, 411 r/w Sec.34 IPC
State
Versus
1. Durgesh Chobey
S/o Sh. Janardhan Chobey
R/o E19/24, Swami Shardhanand Colony,
Bhalswa Dairy, Delhi
2. Anil Gautam
S/o Sh. Rakesh Gautam
R/o C62, Swami Shradhanand Colony,
Bhalswa Dairy, Delhi
3. Ajay Saini @ Sunny
S/o Sh. Kamal Kumar
R/o B117, Rajiv Nagar,
Swami Shradhanand Colony,
Bhalswa Dairy, Delhi ...(Proclaimed offender)
SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016
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4. Arif
S/o Sh. Kasim
R/o F104, Gali No. 3,
Swami Shradhanand Colony,
Bhalswa Dairy, Delhi
5. Deepak @ Deepu
S/o Sh. Subhash
R/o Jhuggi No. 114/52, Kabari Wali Gali,
Bhalswa Dairy, Delhi
6. Samreesh Singh @ Prince
S/o Sh. Manmohan Singh
R/o H.No. 44, Yograj Colony
near Nirankari Sarovar, Delhi
...Accused persons
Date of Institution : 19.07.2012
Date of Judgment : 06.08.2016
JUDGMENT
All the six accused, named above, have been facing trial for offences under Section 395 read with Section 120B IPC, on the accusation that on 03.04.2012, at about 5.30 pm, in the area of Shyam Market, Kucha Ustad Dag, Chandni Chowk, Delhi, all SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 3 of 28 of them, in furtherance of criminal conspiracy to commit dacoity, committed dacoity at the shop of Pawan Sethi S/o Sh. Desh Raj Sethi, R/o Saharanpur (U.P).
Deepak (accused) is alleged to have used knife at the time of commission of dacoity and as such, he is alleged to have committed an offence under Section 397 IPC.
Arif, Ajay Saini @ Sunny, Durgesh and Anil (accused) are alleged to have dishonestly retained a sum of Rs.3,70,000/ and got recovered the same in pursuance of disclosure statement.
2. Case of prosecution, in brief, is that Pawan Sethi, R/o Saharanpur (U.P) runs a cloth shop in Shyam Market, Kucha Ustad Dag, Chandni Chowk, Delhi. Rohit Kashyap was his employee. On 03.04.2012, both of them came to Delhi from Saharanpur to buy Sarees and Lehangas. They reached their shop in Shyam Market, at about 5 am. After having opened the shop, Rohit Kashyap started cleaning it, whereas Pawan Sethi took bath and went to temple. In this way when Rohit Kashyap was present at the shop alone, 34 boys, all of a sudden came SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 4 of 28 there, hurled abuses at him and enquired as to where was Pamma.
One of the boys gagged the mouth of Rohit Kashyap with a Saree and the other commanded him to keep quite whereas the third took out a knife and after breaking the lock of the cash box removed cash lying in it. Thereafter, all of them ran away, while putting the shutter of the shop down.
When Pawan returned from the temple, Rohit Kashyap narrated him the occurrence. Both of them then reached police post of police station Kotwali, but being afraid of and in perplexed state of mind, they are alleged to have left for Saharanpur, without reporting the matter to the police.
Case of the prosecution is that Rohit Kashyap and Pawan Sethi went to police station Kotwali on 07.04.2012 and reported the matter to police. Rohit Kashyap made statement which led to registration of case initially for offence under Section 392 read with section 34 IPC.
3. SI Vikram Singh took over investigation and accompanied by Pawan Sethi and Rohit Kashyap reached their SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 5 of 28 shop and at the pointing out of Rohit Kashyap, he prepared rough site plan of the place of occurrence.
On 08.04.2012, SI Vikram Singh received information from police station Kotwali to the effect that 4 offenders involved in commission of present crime had been arrested by Head Constable Suresh Kumar of police station Timarpur. Arif and Durgesh Chobey (accused) are stated to have been apprehended by police of police station Timarpur on 07.04.2012 at about 6.15 pm. Head Constable Suresh Kumar arrested both of them in case FIR No. 70/12 of that police station, at about 6.30 pm. The Head Constable interrogated both of them, recorded their disclosure statements at Sankalap Bhawan, near ITI Dhirpur Ground. Thereafter, the Head Constable, accompanied by Head Constable Narayan Dass, Constable Rajesh and Constable Gaurav and both these accused, reached house no. 44, Second floor, Yograj Colony. The room was found lying locked. On search, the other two accused were not traceable.
At about 12.30, on the same night, one Santro car no. 1718 is stated to have arrived near Sankalap Bhawan. At the pointing out of Arif and Durgesh Chobey and with the help of SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 6 of 28 other police officials, Head Constable Suresh Kumar apprehended Arjun @ Ajju, Ajay Saini and Anil from the said car. They were interrogated and arrested.
Further, it is case of prosecution that all the above named four accused took Head Constable Suresh Kumar and his companions to house no. 44, second floor, Yograj Colony. On reaching there, Ajay Saini (accused) opened lock of the room with the help of a key and Durgesh Chobey (accused) got recovered a sum of Rs.3,70,000/ lying in a bag in the said room. One bill in the name of Pawan Kumar of Saharanpur was also recovered from the bag. Another bill was also in it. These were seized and sealed. The case property was deposited in the Malkhana. That is how, police of police station Kotwali was apprised of arrest of the four accused.
On 09.04.2012, SI Vikram Singh reached police Station Timarpur and collected some documents from Head Constable Suresh Kumar. All these four accused were arrested by SI Vikram Singh when produced under orders of the court. The SI interrogated all of them, recorded their disclosure statements, formally arrested them and thereafter moved an application for SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 7 of 28 holding of test identification parade. These four accused are stated to have refused to participate in the parade.
On 18.04.2012, SI Vikram Singh received information regarding presence of fifth accused Samreesh Singh @ Prince, in the area of Yograj Colony and that he could be apprehended. It was thereupon that the SI apprehended Samreesh Singh @ Prince, interrogated and arrested him in this case. Identity of this accused was verified by Pawan Sethi at police station Kotwali on the same day.
When it transpired that sixth accused Deepak @ Deepu was in custody in some other case registered at police station Bhalswa, SI Vikram Singh filed an application and got issued his production warrants. Accordingly, on 23.04.2012, Deepak @ Deepu was also arrested and interrogated. When the SI moved an application for his test identification parade, on 27.04.2012, the accused refused to participate in the parade.
Case property was got transferred from police station Timarpur to police station Kotwali. Rohit Kashyap is also said to have verified the identity of four accused Arif, Anil, Deepak and Ajay.
SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 8 of 28 On completion of investigation, challan was put in court.
4. Prima facie case having been made out, charge for an offence u/s 395 read with Section 120 B of IPC was framed against all the six accused; charge for offence u/s 397 IPC was framed against accused Deepak @ Deepu. In the alternative, charge for an offence u/s 412 read with Section 34 IPC was framed against Arif, Ajay Saini @ Sunny, Durgesh Chobey and Anil. Since the accused pleaded "not guilty" and claimed trial, prosecution examined following witnesses : PW1 : Ct. Mukesh To prove recording of FIR at PS Kotwali PW2 : HC Kirpal Singh To prove recording of FIR of this case PW3 : W. Ct. Sunita To prove recording of DD no. 41 B dated 08.04.2012 at PS Kotwali and its assignment to SI Sanjay Goswami PW4 : Pawan Sethi Owner of the shop, where the occurrence is alleged to have taken place.
PW5 : Rohit Kashyap Complainanteye witness to the SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 9 of 28 occurrence PW6 : HC Ramji Lal Witness to the pointing out of the place of occurrence by Anil, Deepak and two others.
PW7 : HC Hans Raj To prove release of sum of
Rs.3,70,000/ to Pawan Kumar under
orders of the court.
PW8 : HC Suresh Kumar Who arrested Arif, Durgesh Chobey, Ajay Saini and Anil.
PW9 : Ct. Mohd. Razaq Witness to the pointing out of place of occurrence by Ajay Saini (accused).
PW10: SI Surender Singh To prove preparation of charge sheet. PW11: Ct. Pankaj Witness to the arrest of Samreesh @ Prince by SI Vikram Singh and to the pointing out of place of occurrence by Arif, Durgesh Chobey and two others.
PW12: Sh. Sandeep To prove refusal of accused Durgesh Gupta - Metropolitan Chobey, Ajay Saini, Anil Gautam, Magistrate Deepak @ Deepu and Arif to participate in test investigation parade. PW13: HC Rajesh Kumar Who participated in investigation conducted by HC Suresh Kumar.
PW14: Sh. C.M Prasad To prove that Durgesh Chobey, Arif, Ajay Saini and Anil faced trial in FIR No. 70/12 of PS Timarpur.
PW15: SI Vikram Singh Investigating officer of this case.
SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 10 of 28 Statement of Accused
5. In their statement U/s.313 Cr.P.C., the accused persons denied all the incriminating circumstances appearing against them and pleaded false implications. Accused persons submitted that they are innocent and have been falsely implicated in the present case; they have played no role in the present case; that they did not commit any offence and no recovery was effected at their instance; that the case property has been planted against them; that police official obtained their signatures on blank papers and lateron converted those blank papers into documents to falsely implicate them in the present case; and that they did not make any disclosure statement.
Accused Durgesh Chobey submitted that he was picked up by police from playground from near his house.
Accused Anil Gautam pleaded that he was picked up by police from his house.
Accused Arif also pleaded that he was lifted from his house; that he was forced by Ct. Rajesh at police station to make SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 11 of 28 a call at his residence and ask for Rs.1015,000/ for his release.
Accused Deepak @ Deepu pleaded that he was picked up by police from Nand Nagri area.
Accused Samresh Singh @ Prince pleaded that he was picked up by police from Nirankari Colony and taken to the area of Chandni Chowk.
Accused Ajay Saini @ Sunny pleaded that he was picked up from his house and falsely roped in false cases and further that all the recoveries have been planted upon him.
6. In defence, DW1 Smt. Anisha Begum, DW2 Sh. Udendra Singh, DW3 Smt Jyoti, DW4 Smt. Asha, DW5 Smt. Meena Devi and DW6 Samresh (accused) have been examined.
7. Arguments heard. File perused.
8. Occurrence is alleged to have taken place on 03.04.2012 at about 5.30 AM, at the shop of Pawan Sethi, situated in Shyam Market, Kucha Ustad Dag, Chandni Chowk, Delhi. But, case was registered on 07.04.2012 on the statement SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 12 of 28 of Rohit Kashyap, employee of Pawan Sethi. Counsel for accused have submitted that prosecution has failed to explain delay in reporting of the matter to the police which creates doubt in the prosecution version and involvement of the accused persons.
9. On the other hand, learned Additional Public Prosecutor has submitted that on 03.04.2012 the complainant and his employer did not get the case registered as they were perplexed and that simply because the case was registered on 07.04.2012, accused persons cannot take any advantage.
10. In Ex. PW5/A i.e. the statement made by Rohit Kashyap, which led to registration of case on 07.04.2012, he stated that he and Pawan Sethi had gone to the police post of PS Kotwali, but returned without reporting the matter to the police, because they were afraid of and perplexed, and further that both of them left for Saharanpur. He also stated in Ex. PW5/A that he reported the matter to the police on 07.04.2012 after reaching PS Kotwali.
SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 13 of 28 However, while making statement in court as PW5, Rohit Kashyap did not state in chief examination to have visited police post of PS Kotwali in the company of his employer Pawan Sethi or to have returned due to the reason that they were in perplexed state of mind and afraid of.
11. In his crossexamination, PW5 displayed ignorance if his employer had made any call to PCR immediately after the occurrence. He admitted to have not informed police immediately after the occurrence. He further admitted to have not even raised alarm after the occurrence. According to PW5 on 03.04.2012, he returned to Saharanpur as suggested by Pawan Sethi.
12. It is not believable that any victim of or witness to such a crime would not lodge report with the police even after having visited a police post or police station, as PW4 & PW5 Pawan Sethi and Rohit Kashyap want the court to believe.
13. PW15 SI Vikram Singh has tried to help PW5 and his SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 14 of 28 employer PW4 by stating that on 03.04.2012 both of them had come to him at the police post in perplexed state of mind and when he enquired from Pawan Sethi about the facts, he told that he would reaffirm the things from Rohit Kashyap. Saying so, both of them left the police post and thereafter did not come to him.
Had PW4 & PW5 visited the police post on 03.04.2012 after the occurrence and met SI Vikram Singh, Rohit Kashyap (PW4) must have mentioned in Ex. PW5/A specifically to have met SI Vikram Singh, but this fact does not find mention in Ex. PW5/A. Even in the endorsement Ex. PW15/A appended by SI Vikram Singh while sending rukka, this fact does not find mention. Rather, from the version given by SI Vikram Singh, it appears that even if PW4 & PW5 happened to visit the police post on 03.04.2012, they were not aware of significant facts or otherwise they would have lodged the report then and there, and not left the police post without reporting the commission of such a serious offence.
SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 15 of 28
14. Case of prosecution is that PW4 & PW5 visited Delhi on 03.04.2012 after having come from Saharanpur. They so came to buy Sarees and Lehangas. According to PW5, they had brought cash worth Rs.4,50,000/ with them and that his employer Pawan placed money in the safe. Further, according to him on 03.04.2012 he and his employer left Saharanpur by train and reached Delhi at around 5 AM. However, in his cross examination PW5 could not tell the name or number of this train by which they traveled. He could not tell even the number of the seat or that of the coach of the train by which they traveled. He could not say if they had got their seats reserved. He even could not tell the railway station at which he and his employer alighted from the train.
15. PW4 Pawan Sethi is stated to have accompanied his employee Rohit Kashyap to Delhi from Saharanpur on 03.04.2012 for purpose of Sarees and Lehangas. They reached his shop in Shyam Market, Kucha Ustad Dag, Chandni Chowk, Delhi, at about 5 AM. According to PW4, after having opened the shop, Rohit started cleaning it, while he went to take bath SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 16 of 28 and thereafter left for temple. As regards cash, PW4 stated to have placed Rs.4,50,000/ in the cash box (safe) lying at the shop, before leaving for bath. When he returned to the shop, he saw that shutter of the shop was lying down. He lifted the shutter and found Rohit very nervous. Rohit then explained him the manner in which the crime was committed by 34 boys.
16. It is significant to note that in their statements made in court PW4 & PW5 have stated that cash to the tune of Rs.4,50,000/ was stolen by the 34 boys, but this amount was not at all mentioned by Rohit Kashyap in his statement Ex. PW5/A, although the same was made by him on the 5 th day of the occurrence. Even if he did not know about the total cash on 03.04.2012, by 07.04.2012 he must have learnt from Pawan Sethi that he had placed Rs.4,50,000/ in the safe/cash box, and then stated this amount in Ex. PW5/A. Since this amount does not find mention even in his statement made on the 5 th day of the occurrence, it creates doubt in the version of the prosecution, if it was actually a case of robbery of Rs.4,50,000/.
SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 17 of 28 Arrest of four accused and the recovery.
17. As noticed above in the FIR statement Ex.PW5/A, made by Rohit Kashyap, none of the offenders was named. He did not give even their descriptions. Case of the prosecution is that on 07.04.2012 Arif and Durgesh Chobey were arrested by SI Vikram Dahiya, SI Arun Tyagi and Ct. Gaurav of PS Timarpur and it was on the basis of their disclosure statements made before HC Suresh of that police station that the coaccused Anil and Ajay Saini were arrested by HC Suresh Kumar of PS Timar Pur and at the instance of Arif, Durgesh Chobey, Anil and Ajay Saini accused, currency notes worth Rs.3,70,000/ were recovered from a room of House no.44, Second Floor, Yograj Colony where they allegedly used to reside as tenants.
18. DD No.41B dated 08.04.2012 was recorded at PS Kotwali at 12.35pm. It was to the effect that HC Suresh had informed from PS Timar Pur regarding arrest of four accused Arif, Durgesh Chobey, Ajay Saini and Anil in case FIR no.70/2012 of PS Timar Pur and further that they had disclosed their involvement in commission of the present crime. The SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 18 of 28 information further was that all the four accused were going to be produced before Metropolitan Magistrate, Tis Hazari Court.
19. As on 08.04.2012 SI Vikram Singh was serving as an Incharge PP Balimaran of PS Kotwali. According to him, on 08.04.2012 he received information from PS Kotwali that offenders wanted in this case had been arrested by HC Suresh of PS Timar Pur, and as such he reached PS Timar Pur, but did not find HC Suresh or accused there. On 09.04.2012 he again visited PS Timar Pur and collected from HC Suresh, copies of disclosure statements of Arif, Durgesh Chobey, Anil and Ajay Saini, seizure memos, pointing out memos, arrest memos, personal search memos and statements of police officials.
20. PW8 HC Suresh Kumar stated in his cross examination that Arif and Durgesh Chobey accused were apprehended by SI Anand, and on meeting near ITI, Dhir Pur Ground, near Burari Chowk, Delhi, the SI and others he arrested both of them in connection with case FIR No.70/2012. This statement of PW8 regarding the name of SI who initially arrested these two SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 19 of 28 accused is not in consonance with what he stated in chief examination. In chief examination, he stated that SI Vikram Dahiya, SI Arun Tyagi and Ct.Gaurav had arrested both these accused. Prosecution neither cited nor examined SI Anand to prove as to how and in what circumstances these two accused persons were arrested by them and as to how HC Suresh Kumar came to know about their arrest and happened to reach near Burari Chowk, Delhi.
21. Ex.PW13/C and Ex.PW13/D are photocopies of arrest memos of Arif and Durgesh Chobey accused, prepared by HC Suresh Kumar. As per these memos, these two accused persons were arrested on 07/04/2012 at about 8.30 pm by HC Suresh Kumar in presence of Ct.Rajesh, Ct.Gaurav and HC Narayan and from their possession one motor cycle i.e. stolen property of case bearing FIR no.70/2012 was recovered vide memo Ex.PW13/E.
22. According to PW8 HC Suresh Kumar, when he interrogated both these accused Arif and Durgesh Chobey, they made disclosure statements regarding their involvement in the SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 20 of 28 present case alongwith others namely Anil, Ajay Saini and Deepak @ Deepu and to have committed robbery. Ex.PW13/A and Ex.PW13/B are photocopies of disclosure statements said to have been made by Arif and Durgesh Chobey accused respectively, on 08/04/2012 before HC Suresh Kumar in presence of Ct.Rajesh, Ct.Gaurav and Ct.Narain Dass.
As per these disclosure statements pertaining to this case, Arif stated before HC Suresh Kumar that he (HC Suresh Kumar) had recovered a sum of Rs.3,70,000/ and that he could point out the place of occurrence in the area of Chandni Chowk. He did not offer to get recovered any amount or to get discovered any fact. To same effect is the disclosure statement said to have been made by accused Durgesh Chobey. But these disclosure statements are in contradiction with the version put forth by PW8 HC Suresh Kumar, as according to him (PW8) these two accused persons first made disclosure statements then got arrested their coaccused Ajay Saini and Anil on the same night at about 12.30 AM from a Santro car and thereafter led to Yograj Colony where Ajay Saini opened a room with a key whereas Durgesh Chobey picked up a bag containing SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 21 of 28 Rs.3,70,000/ and two bills.
No disclosure statement is alleged to have been made prior to Ex. PW13/A and Ex. PW13/B made before HC Suresh Kumar.
23. PW13 HC Rajesh Kumar is another witness to the disclosure statements made by Arif and Durgesh Chobey accused and also to the recovery of a sum of Rs.3,70,000/. HC Rajesh Kumar has stated about the arrest of Arif and Durgesh Chobey accused on 07.04.2012, then about disclosure statements Ex.PW13/C and Ex.PW13/D, then about arrest of coaccused Ajay Saini and Anil and further that all these five accused persons took them to House no.44, Yograj Colony where Ajay Saini opened the lock of the room whereas Durgesh Chobey accused took out a bag containing Rs.3,70,000/ and two bills in the name of Pawan. PW13 also proved memo Ex.PW13/F.
24. Having regard to the contents of disclosure statements said to have been made by Arif and Durgesh Chobey accused, as narrated by HC Suresh Kumar and HC Rajesh, when recovery of SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 22 of 28 Rs.3,70,000/ is said to have already been made, court finds that prosecution has failed to prove that recovery of Rs.3,70,000/ was made in pursuance of disclosure statements, as stated by HC Suresh Kumar and HC Rajesh Kumar. All this creates doubt in the prosecution version narrated by PW8 HC Suresh Kumar and PW13 HC Rajesh Kumar.
Even otherwise as per recovery memo Ex. PW13/F, only accused Anil, Durgesh Chobey, Ajay Saini and Arif are said to have led the party headed by HC Suresh Kumar to H.No.44, Second Floor, Yograj Colony, where Durgesh Chobey produced a bag, picked up from one of the rooms of the said house, stating that it was the stolen property.
There is no mention in this recovery memo that it was accused Ajay Saini, who opened the lock of the room in the said building with a key. No witness from the public was associated in the investigation to authenticate the recovery. There is no satisfactory explanation for nonjoining of independent witnesses or the owner of the house at the given time. HC Narain Dass and Ct. Rajesh are the only attesting witnesses to the recovery memo. Court finds that this is a case of noncompliance with SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 23 of 28 provision of 100(4) Cr.P.C. Even on this ground, recovery of the said amount and the two bills from the said room at the instance of Ajay Saini and Durgesh Chobey becomes doubtful.
25. Case of prosecution is that the currency notes and the two bills were turned into a parcel and sealed with the seal bearing impression ND. In order to rule out possibility of tampering with the case property, HC Suresh Kumar was required to deliver the seal of ND used in sealing the parcel either to other member of the party or to any independent witness, but no such step was taken by the Head Constable, as there is no mention in memo Ex. PW13/F about delivery of the seal by HC Suresh Kumar to anyone else. Therefore, prosecution has failed to rule out possibility of tampering with the case property, during investigation.
26. It is case of the prosecution that custody of all these accused namely Anil, Durgesh Chobey, Ajay Saini and Arif was obtained by PW15 SI Vikram Singh on 16.04.2012 at the time they were produced in the court. When they were produced in SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 24 of 28 court on 16.04.2012, they were produced with muffled faces. However, prosecution has not produced on record, record pertaining to remand proceedings of these accused in respect of case FIR No.70/12 (in which Anil, Durgesh, Ajay and Arif were initially arrested) so that the court could find out that at the time of their production in case FIR No. 70/12 of PS Timar Pur, all of them were being produced with muffled faces. In absence of any such record, possibility of the complainant Rohit and his employer Pawan having seen the four accused in unmuffled face, in the meanwhile, cannot be ruled out. In the given circumstances, when these four accused persons refused to participate in test identification proceeding, no adverse inference can be drawn against them and prosecution cannot take advantage of their refusal to participate in the parade.
27. So far as accused Samresh Singh @ Prince is concerned, he was arrested by SI Vikram Singh on 18.04.2012. According to PW15, on 18.04.2012 he received information regarding presence of this accused in the area of Yograj Colony so he accompanied by Ct. Pankaj another police official reached the said colony and apprehended Samresh from there. During SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 25 of 28 interrogation firstly, he is alleged to have made disclosure statement Ex. PW11/C and thereafter he was arrested. It is in the statement of PW15 that Pawan Sethi had come to the police post on 18.04.2012 and verified the identity of this accused as the person employed under him and that he used to visit the shop at Chandni Chowk.
It may be mentioned here that except disclosure statement, prosecution has not brought on record any cogent and convincing evidence that Samresh @ Prince was also involved in commission of the dacoity. No fact was discovered in pursuance of the disclosure statement of this accused. Therefore, simply on the basis of the disclosure statement made by this accused before the police, it cannot be said that he was also involved in commission of the dacoity.
28. As regards, Deepak @ Deepu, case of prosecution is that he is said to have been arrested when got produced on 23.04.2012 on production warrants on the basis of application filed by SI Vikram Singh. He is said to have been so arrested on the basis of disclosure statement attributed to Arif and Durgesh Chobey made on 08.04.2012.
SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 26 of 28 As discussed above, no recovery was made in pursuance of the disclosure statement made by the two accused Arif and Durgesh Chobey. Rather as per their disclosure statements, a sum of Rs.3,70,000/ is stated to have been recovered even prior to recording of disclosure statements. These two accused did not attribute any specific role to Deepak @ Deepu.
When SI Vikram Singh applied for test identification proceeding of Deepak @ Deepu, he was produced in court with muffled face, but prosecution has not produced on record any evidence to suggest that prior thereto, at the time of his production before the court in other matter, and soon before his production in this case, he was being produced in muffled face. Therefore, possibility of Deepak @ Deepu having been shown to PW5, prior to his production before the court on 23.04.2012, cannot be ruled out.
In view of the above discussion, identification of these five accused Durgesh Chobey, Anil Gautam, Arif, Deepak @ Deepu and Samresh Singh @ Prince in court by PW5, does not help the prosecution to connect them with the commission of the crime, particularly when PW5 Rohit Kashyap did not give SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 27 of 28 description of the 34 boys or their identifying marks while making statement Ex. PW5/A which led to registration of this case.
It is significant here to mention that PW5 Rohit Kashyap stated in crossexamination that he was working with Pawan Sethi for the last 89 years and accused Sunny and Anil were amongst persons who worked with him at the said shop of Pawan Sethi, before the present occurrence. Surprisingly, he did not disclose this fact to the police. In Ex. PW5/A none of the offenders was named by Rohit Kashyap, but while appearing in court he identified accused Anil as the offender who hurled abuses at him and enquired about Pawan Sethi. In case he knew Anil even prior to the occurrence, he could easily name him in his statement Ex. PW5/A specifying the role played by him, but in Ex. PW5/A he did not name Anil. This again creates doubt in the version submitted by PW5 on the point of identity of accused Anil.
29. As a result, court finds that prosecution has failed to prove its case against any of the five accused namely Durgesh SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016 28 of 28 Chobey, Anil Gautam, Arif, Deepak @ Deepu and Samresh Singh @ Prince, beyond shadow of reasonable doubt. Extending benefit of doubt, this court orders for acquittal of these five accused.
30. As regards accused Ajay Saini, Proclaimed Offender, file be consigned to Record Room U/s.299 Cr.P.C. and be produced as and when the accused is produced or appears in court.
Announced in the open Court on this 6th day of August, 2016.
(NARINDER KUMAR) SPECIAL JUDGE, NDPS02 (CENTRAL) TIS HAZARI COURTS, DELHI SC No. 61/12 State v. Durgesh Chobey & Ors. Dated 06.08.2016