Delhi District Court
The State vs 1. Praveen Kumar @ Sonu S/O Sh on 12 November, 2014
D.O.D 12.11.2014 FIR No. 155/2005
P.S Rajouri Garden
u/s 395/120B/412 IPC
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 53/2014
UID NO . : 02404R01287332005
FIR No : 155/2005
P. S : Rajouri Garden
u/s 395/120 B/412 IPC.
The State versus 1. Praveen Kumar @ Sonu S/O Sh
Ramphal R/O C-1/55, Rama Vihar
Sultan Puri Delhi.
2. Laxman S/O Sh Bhagwat Singh
R/O RZ G 285 ,Raj Nagar Part
II nd Palam Colony, Delhi.
3. Shiv Kumar @ Sibu
S/O Ram Charan
R/O Jhugi NO.234, C Block ,
Mansarovar Garden , Maya Puri,
Delhi.
4. Kamlesh S/O Mewa Lal
R/O Jhuggi NO.A 11,12 Phase Ist
Mayapuri, Delhi.
5. Mukesh @ Raju S/O Sumer Singh
R/O E 171/1 Vijay Vihar, Phase -
IInd , Rohini Delhi.
SC No. 53/14 State vs Praveen @sonu & ors (Page 1 of 41 )
D.O.D 12.11.2014 FIR No. 155/2005
P.S Rajouri Garden
u/s 395/120B/412 IPC
6. Raja Ram S/O Sureman R/O
H.NO C-402, Chunna Bhatti ,
Furniture Market, Kirti Nagar,
Delhi.
7. Sanjay Pandey S/O Manoj
Pandey R/O A-5, Jaitpur,
Hari Nagar Extn, Badar Pur,
Delhi.
Date of committal to session court : 20.09.2005
Date of argument : 12.11.2014
Date of order : 12.11.2014
JUDGMENT
1. Facts and circumstances giving rise to the present case, as per the story of the prosecution are that on 24.2.2005, Umesh Paswan(PW4) who was driver with M/S Bharat Distributor Pvt Ltd had taken one cartoon containing cash Rs 1241970/-( Rs Twelve lac forty one thousand nine hundred and seventy) from cashier Anuj(PW3) which he had to deliver at the house of Balbir Singh Sethi (PW5) owner of M/S Bharat Distributor Pvt Ltd. The said cash was in bundles of notes of different denomination, which were wrapped with the slip of Bharat Distributor Pvt.Ltd. Umesh Paswan put the said cartoon in Santro Car bearing no. DL-4CM-7742 and when he reached in front of Rajouri Garden Apartment , one Zen SC No. 53/14 State vs Praveen @sonu & ors (Page 2 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC Car bearing no. DL-8CE-8214 came from his back side and overtook from his right side and hit against his car. Two persons aged about 20-22 years got down from the said Zen Car . Two more persons were sitting in the said Zen Car .One was sitting at the back seat and other was sitting at the driver seat and kept the Zen Car on. It is alleged that one of the aforesaid persons who came to Umesh Paswan(PW4) was having "Panna" in his hand and broke both the side glasses of Santro Car and took away the Cartoon containing the aforesaid cash . When Umesh Paswan(PW4) tried to stop them, they gave him blow on his face .
2. It is further case of the prosecution that Balbir Singh (PW5) on receipt of the information from Umesh Paswan(PW4) about the aforesaid incident, reached at the spot and came to know that Umesh Paswan(PW4) has been removed to Deen Dayal Upadhyay Hospital. A call was made to the police. Police reached at the spot and seized the Santro Car . In the hospital police recorded statement of Umesh Paswan on the basis of which present FIR was registered.
SC No. 53/14 State vs Praveen @sonu & ors (Page 3 of 41 )
D.O.D 12.11.2014 FIR No. 155/2005
P.S Rajouri Garden
u/s 395/120B/412 IPC
3. It is the further case of the prosecution that accused Praveen was arrested in FIR no. 391/03 P.S Adarsh Nagar wherein he disclosed that on 24.2.2005, he along with co-accused persons had committed robbery of Rs 12.41 lacs kept in a cardboard box in Rajouri Garden after breaking window panes of a Santro Car. Information was given to P.S Rajouri Garden and accused Praveen was arrested in the present case. During investigation other co-accused persons namely Laxman, Kamlesh, Sanjay Pandey, Mukesh and Raja Ram were also arrested. During investigation accused Raja Ram , Laxman , Mukesh , Sanjay and Praveen were put to TIP proceedings . All the accused persons except Laxman refused to join the TIP proceedings. Accused Laxman is shown to have been identified during TIP.
4. According to the prosecution accused Praveen got recovered Rs 5000/-, accused Shiv Kumar Rs 3000/-, accused Laxman Rs 10,000/-, and accused Kamlesh Rs 1000/- out of the robbed cash which was seized by the police vide separate seizure memo's. On completion of investigation accused persons were chargesheeted for the offences u/s 395/394/412/120 B/34 SC No. 53/14 State vs Praveen @sonu & ors (Page 4 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC IPC
5. Chargesheet was filed before the Ld Trial Court. Ld MM took the cognizance of the offences and subsequently, since the offences u/s 395/412 IPC were exclusively triable by the court of sessions, therefore, case was committed to the court of sessions .
6. Vide order dated 09.02.2007, ld predecessor of this court decided the charges and accordingly, charges for the offences u/s 120 B/395 IPC were framed against all the accused persons and accused Shiv Kumar, Kamlesh , Laxman and Praveen Kumar were additionally charged for the offence u/s 412 IPC. All the accused persons pleaded not guilty and claimed to be tried.
7. In support of its case prosecution has examined Twenty witnesses . Here it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record .
8. PW 1 Constable Naresh Kumar was posted SC No. 53/14 State vs Praveen @sonu & ors (Page 5 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC as DD writer at PP MIG Flat during relevant time and he recorded DD no. 24 ExPW1/A .
9. PW2 Constable Naresh Kumar accompanied the IO during investigation and in his presence Santro vehicle bearing no. DL-4CM-7742 was seized vide memo ExPW2/A .
10. PW3 Anuj deposed that on 24.2.2005, he was working with Bharat Distributor Pvt Ltd owned by Balbir singh , as cashier and on that day at about 8:30 pm, he handed over one cartoon containing Rs 12,41,970/- to Driver Umesh Paswan(PW4) to be handed over to Balbir Singh at his residence. The notes of different denominations were wrapped with a slip of Bharat Distributer Pvt Ltd. He came to know that the cartoon containing above said amount had been looted from Umesh Paswan. He was called by Sh Balbir Singh at Raja Garden.
11. PW4 Umesh Paswan is the victim in the present case. He deposed that on 24.2.2005 at about 8:45 pm, he was handed over the card board carton SC No. 53/14 State vs Praveen @sonu & ors (Page 6 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC containing money by the cashier Anuj(PW3) for delivering the same at the house of Balbir Singh Sethi(PW5). He took the cartoon and put the same in the car make Santro bearing no. DL-4CM-7742 and went towards the house of Sh Sethi. When he reached in front of Rajouri Garden Aptts, one Zen Car without head light on, came from the back side and overtook from his right side and hit against his car. There were 4-5 persons in the said Zen Car and one of the person was having "panna" in his hands and came outside the said car and broke the both sides glasses of his car and pick up the cartoon, containing money from the car. PW4 further deposed that when he tried to stop him, he gave him a fist blow on his face. One another person also got down from the said car with the person who had picked up the cartoon box and gave fist blow to him. Two more persons were sitting in the said Zen Car and kept the Zen Car on . Thereafter, they ran way. Someone made a call at 100 number. Police took him to the hospital where he was medically examined and his statement ExPW4/A was recorded by the police. Santro car was seized vide memo ExPW2/A . PW4 was cross examined by the ld Adll PP for state as he was resiling from his previous SC No. 53/14 State vs Praveen @sonu & ors (Page 7 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC statement regarding identity of the accused persons.
12. PW5 Balbir Singh is the owner of Bharat Distributor . He deposed that on 24.2.2005, at about 8:45 pm he received a call from Umesh Paswan that the cash which was given to him by the cashier, has been looted from the Santro Car. He immediately went to the spot where he was informed by the police present over there that his driver has been taken to DDU. His Santro Car found stationed there and its glass were found broken. He further deposed that as per record Rs 12,41,970/- was looted which was in a carton box.
13. PW6 HC Ranbir Singh deposed that he was posted as crime team proficient in the West Zone of Delhi on 24.2.2005. He along with photographer HC Vijay Kumar(PW9) reached at the spot and inspected the scene of crime . He also developed three prints from the Santro Car and prepared his report ExPW6/A.
14. PW7 Ct. Satish was with IO S.I Sudhir Kumar during investigation in case FIR no 391/2003 P.S Adarsh Nagar. In that case accused Praveen Kumar is shown to SC No. 53/14 State vs Praveen @sonu & ors (Page 8 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC have confessed about his involvement in present case and his disclosure statement was recorded vide ExPW9/A and his pointing out memo of place of occurrence ExPW9/B was also prepared by S.I Sudhir Kumar. Accused was arrested and IO prepared kalandra U/s 41.1.(A) CrPC and information was given to P.S Rajouri Garden.
15. PW8 Ct. Surjeet is the witness in whose presence accused Praveen got recovered Rs 5000/- and one carton which were seized by the IO vide seizure memo ExPW10/A and ExPW10/B respectively. He was with S.I P.C Yadav (PW11).
16. PW9 HC Vijay Kumar is the witness who was posted as photographer with Crime team and on 24.2.2005, on the instruction of his crime team Incharge, he took photographs of the car which are ExPW9/B-1 to B-3 and negatives are ExPW9/A1 to ExPW9/A-3.
17. PW10 S.I Ranbir Singh is the duty officer who proved the registration of FIR vide ExPW10/A and his endorsement ExPW10/B on rukka .
SC No. 53/14 State vs Praveen @sonu & ors (Page 9 of 41 )
D.O.D 12.11.2014 FIR No. 155/2005
P.S Rajouri Garden
u/s 395/120B/412 IPC
18. PW11 S.I P.C Yadav deposed that on
27.3.2005, pursuant to the directions of ACP Rajouri
Garden, he took out accused Parveen Kumar @ Sonu
from the lockup and recorded his disclosure statement
Vide ExPW11/A. He further deposed that accused
Praveen Kumar led the police party to H.NO C1/55 , Rama Vihar, Delhi and from the inner room of the said house accused Praveen Kumar took out the packet of Rs 100 X 50 notes from the locker of the almirah . The recovered notes were having slip of Bharat Distributors (P) Ltd. The recovered cash was converted into a pullanda and the same was sealed with the seal of PCG and the pullanda was taken into police possession vide seizure memo ExPW10/A . Accused Praveen handed over one empty cartoon and same was kept in the white cloth and turned in to a pullanda and sealed with the seal of PCG and seized vide seizure memo ExPW10/B.
19. PW12 Insp. Sudhir Kumar was posted as S.I in Operation Cell North west. He deposed that on 14.3.2005, while during interrogation of accused Praveen in FIR no. 391/03 P.S Adarsh Nagar, he disclosed SC No. 53/14 State vs Praveen @sonu & ors (Page 10 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC that on 24.2.2005, he along with co-accused person Mukesh, Laxman, Raj Kumar and Sanjay had committed robbery of Rs 12.41 lacs kept in a cardboard box in Rajouri Garden after breaking window panes of a Santro Car. He prepared Kalandra u/s 41.1(A) CrPC ExPW12/A and made DD no.12 ExPW12/B in this regard . He further deposed that accused Praveen led them to the place where he committed robbery and he prepared his pointing out memo ExPW9/B and recorded his disclosure statement ExPW9/A.
20. PW13 HC Naresh is a formal witness who was with IO S.I Satish during investigation.
21. PW14 S.I Puran Chand is another formal witness who on 25.3.2005 is shown to have taken accused Praveen to Uttranchal for recovery and arrest of another co-accused persons.
22. PW15 Inspector Avdesh Kumar on 2.3.2005, was posted at Finger Print Bureau, Malviya Nagar as finger print expert. He deposed that on that day , he received three chance prints marked Q1, Q2 and Q-3 SC No. 53/14 State vs Praveen @sonu & ors (Page 11 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC along with specimen slips of four suspected persons i.e Umesh Paswan, Manoj @ Jittu , Sanjay Kumar and Rajesh Aggarwal for comparison. On 26.4.2005, he received specimen slips of four suspected persons i.e accused Praveen Kumar @ Sonu , Laxman Singh, Kamlesh and accused Shiv Kumar@ Sibu for comparison. On 20.5.2005, he again received specimen palm prints of accused Parveen Kumar @ Sonu. On 4.7.2005, after comparing the chance prints and palms prints along with specimen slips of suspected persons, he prepared report ExPW15/A. As per the aforesaid report chance prints marked Q1 was identical with the left palm print marked S 1 on the palm impression print of accused Laxman Singh.
23. PW16 Inspector Jagdish Rai is the witness to the arrest of accused Mukesh in FIR no. 480/2005 P.S S.P Badli .
24. PW17 Ms Deepa Verma Deputy Director , FSL , Rohini on 09.5.2005 received questioned handwritings marked Q1 ExPW17/A , Q 2 ExPW17/B, Q3 ExPW17/C and specimen handwritings of accused persons namely S-1 & SC No. 53/14 State vs Praveen @sonu & ors (Page 12 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC S2 of accused Kamlesh Kumar , ExPW17/D1 and ExPW17/D2 respectively , S-3 and S-4 of of accused Shiv Kumar ExPW17/E1 & E2 and S-5 & S-6 of accused Laxman ExPW17/F1 & F2 respectively, for analysis . She compared the handwriting and found that writing ExPW17/A are in the handwriting of accused Kamlesh and writing ExPW17/B is in the hand writing of accused Shiv Kumar and writing ExPW17/C is in the hand writing of accused Laxman and gave detailed opinion ExPW17/G .
25. PW18 Retd ASI Rampat is the witness who on 24.2.2005 was posted at PCR West Zone . He deposed that on receipt of the information of the incident, he reached at the spot and had removed the injured Umesh Paswan(PW4) to DDU Hospital and also informed the control room.
26. PW19 Retd S.I Ram Niwas is the witness who arrested accused Mukesh Kumar in FIR no. 480/2005 P.S S.P Badli and recorded disclosure statement of accused Mukesh regarding his involvement along with other co- accused persons in the robbery of present case.
SC No. 53/14 State vs Praveen @sonu & ors (Page 13 of 41 )
D.O.D 12.11.2014 FIR No. 155/2005
P.S Rajouri Garden
u/s 395/120B/412 IPC
27. PW20 Insp. Satish Kumar is the IO of the present case. He deposed that On 24.02.05, on receipt of information regarding robbery he reached at the spot where ASI Sohan Lal along with Ct. Naresh were already present. A Santro car bearing no.DL4CM 7742 was also lying parked there on the road. Both the mirrors of the front gates were broken and pieces of glass were lying scattered on the road and also inside the car. He came to know that injured has already been removed to the DDU hospital. He along with Ct. Naresh went to DDU hospital leaving ASI Sohan lal at the spot to look after the spot. In the hospital, he found one Umesh Paswan injured present. He recorded the statement of Sh. Umesh Paswan and made endorsement Ex.PW20/A and prepared the rukka and got registered the FIR. He collected the MLC of injured Umesh Paswan and returned at the spot.
28. PW20 further deposed that he seized Santro Car vide memo Ex.PW2/A and got the spot inspected through Crime Team and finger print proficient. Three chance print were lifted from the vehicle. The finger print proficient report is Ex.PW6/A, He sent the said car to finger print bureau for further expert opinion from finger SC No. 53/14 State vs Praveen @sonu & ors (Page 14 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC print bureau Malviya Nagar on the next day and finger print expert report in this respect is Ex.PW20/B. He prepared the site plan Ex.PW20/C, at the instance of Sh. Umesh Paswan.
29. PW20 Insp. Satish Kumar further deposed that on 14.03.05, on receipt of DD no.11A, PS Rajouri Garden Ex.PW20/D, regarding arrest of accused Praveen @ Sonu s/o Ramfal u/s.41.A Cr.P.C. in which he had disclosed about his involvement in the present case, he along with Constable Vijay reached the office of Operation Cell, N/W Distt. and obtained copy of the disclosure statement of accused Praveen @ Sonu Ex.PW9/A. On the same day i.e on 14.03.05, he moved an application before the Ld. MM, for interrogation of accused Praveen @ Sonu in view of the above said disclosure statement Ex.PW9/A and after interrogation he was arrested vide arrest memo Ex.PW20/E, in the present case also. He moved an application before the Ld. MM for conducting the TIP of accused Praveen @ Sonu but accused Praveen @ Sonu refused to take part in the TIP. He obtained the copy of TIP proceedings Ex.PX2.
SC No. 53/14 State vs Praveen @sonu & ors (Page 15 of 41 )
D.O.D 12.11.2014 FIR No. 155/2005
P.S Rajouri Garden
u/s 395/120B/412 IPC
30. PW20 further deposed that he obtained two days PC remand of accused Praveen @ Sonu and on 24.03.05, recorded the disclosure statement of accused Praveen @ Sonu Ex.PW13/A, in which accused disclosed that he could get "paana" ie., weapon of offence recovered and that he could get his co accused arrested. On the same day, accused Praveen @ Sonu led them to a road between block no.12 & 13, Subhash Nagar, on the round about (gol chakkar) and got recovered a wheel "paana" with which he had broken the glasses of the window of the Santro Car mentioned above. That "paana" was converted into a parcel with the help of white cloth and sealed with the seal of SK and seized vide seizure memo Ex.PW13/B. On 24.03.05, he got PC remand of the accused Praveen extended for four more days .
31. On 27.03.05, another team led by SI P.C. Yadav took accused Praveen @ Sonu to his house at L-1/55, Rama Vihar, Delhi and that team got recovered Rs.5,000/- and an empty cartoon vide seizure memos Ex.PW10/A & Ex.PW10/B respectively and SI P.C. Yadav handed over these original documents to him On SC No. 53/14 State vs Praveen @sonu & ors (Page 16 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC 26.03.05, he along with ASI Geeta Ram, HC Naresh Kumar reached at residence of accused Laxman ie., H.No.RZG-285, Raj Nagar, Part-II and accused Laxman was arrested vide arrest memo PW13/C, and his personal search was conducted vide memo Ex.PW13/D. Accused made a disclosure statement vide memo Ex.PW13/E. Accused Laxman got recovered one bundle of currency notes of Rs.100/- having slip of Bharat Distributor Pvt. Ltd. the bundle was kept in the pulanda and the pulanda was selaed with the seal of SK and the same was taken into possession vide seizure memo Ex.PW13/F . Accused Laxman also got recovered one packing box of mobile make Nokia-2300 and same was kept in pulanda and pulanda was sealed with the seal of SK and taken into possession vide memo Ex.PW13/Q.
32. PW20 Inspector Satish Kumar further deposed that on that day, accused Laxman led them to jhuggi no. 234, C-Block, Mansarovar Garden, Mayapuri Chowk and pointed out towards accused Shiv Kumar who was involved in this case and accused Shiv Kumar was over powered and he was arrested vide arrest memo Ex.PW13/G and his personal search was carried out SC No. 53/14 State vs Praveen @sonu & ors (Page 17 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC vide memo Ex.PW13/H. Pocket diary recovered from personal search was also taken and the same was placed on the file. Accused made a disclosure statement which is Ex.PW13/J accused got recovered thirty currency notes of denomination of Rs.100/- from under the mattress and a slip of Bharat Distributor Ltd. was affixed on the bottom of recovered last currency notes. Same was kept in a pullanda and sealed with the seal of SK and taken into possession vide memo Ex.PW13/I.
33. PW20 further deposed that accused Shiv Kumar also disclosed that accused Kamlesh who was employee of Bharat Distributor Pvt. Ltd. informed him and other accused regarding transaction of the cash. Thereafter, accused Shiv Kumar led them to the Jhuggi of accused Kamlesh ie., A-11,12, Phase-I, Maya Puri, Delhi and accused Kamlesh was interrogated and was arrested vide arrest memo Ex.PW13/K, and his personal search was carried out vide memo Ex.PW13/L. Pocket diary was recovered from his personal search and same was taken and placed on the file and accused Kamlesh also got recovered Rs.1,000/- of denomination of Rs.100/- of robbed amount and the same was kept in a pullanda and SC No. 53/14 State vs Praveen @sonu & ors (Page 18 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC the same was sealed with the seal of SK and taken into possession vide seizure memo Ex.PW13/N. Accused made a disclosure statement Ex.PW13/M. Thereafter, accused Shiv Kumar and Laxman led them to the spot and pointed out the place of incident. He prepared the pointing out memo Ex.PW13/O & Ex.PW13/P.
34. PW20 Inspector Satish Kumar further deposed that during investigation, they came to know that accused Laxman had noted down his number in the diary of accused Kamlesh and accused Shiv Kumar had also noted down his mobile number in the diary of accused Kamlesh. It also came to their knowledge that accused Kamlesh had noted down the address & phone number of the company in the diary of Shiv Kumar. He obtained the specimen handwriting of accused Laxman, Kamlesh and Shiv Kumar and the same were sent to the FSL with diary recovered from personal search of accused. He also moved an application for getting conduct TIP of accused Laxman and accused Laxman was correctly identified by witness Umesh during the TIP proceedings. He obtained the copy of TIP proceeding Ex.PX3 (admitted vide statement Dated 07.05.2014). He obtained the finger SC No. 53/14 State vs Praveen @sonu & ors (Page 19 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC prints and palm prints of all the accused persons and the same were sent to Finger Print Bureau, Malviya Nagar, Delhi for comparison with chanceprint lifted by Mobile Crime Team from the car. On 09.05.2005, after completion of the investigation, He filed the chargesheet against the accused Praveen, Laxman, Shiv Kumar and Kamlesh and remaining four accused persons were kept in column no.2.
35. PW20 further deposed that on 05.07.2005, he received information from PS S P Badli regarding the arrest of accused Mukesh in case FIR No. 480/05, U/s.25/54/59 A.Act and accused made a disclosure statement regarding his involvement in the case FIR no.155/05. On 06.07.2005, accused Mukesh was produced before the concerned court and after taking the permission, accused Mukesh was interrogated and arrested in the present case vide arrest memo Ex.PW20/H. Accused made a disclosure statement Ex.PW20/I, On 06.07.2005, He moved an application for getting conduct the TIP proceeding of accused Mukesh. On 14.07.2005, accused refused to participate in the TIP proceedings. Two days PC remand of accused SC No. 53/14 State vs Praveen @sonu & ors (Page 20 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC Mukesh was obtained and he led the police party to the place of incident and accused pointed out the place of incident the same is Ex.PW20/J . He obtained the FSL result and finger print result from Finger Print Bureau and filed the supplementary chargesheet against the accused Mukesh.
36. PW20 further deposed that on 21.11.05, he along with Ct. Bahadur Singh and HC Naresh went to Bhagat Singh Park, Rama Road, Kirti Nagar on receipt of information regarding the presence of accused Rajaram at Kirti Nagar. At the instance of the secret informer, accused Rajaram was arrested vide arrest memo Ex.PW20/K and his personal search was carried out vide Ex.PW20/L. Accused made a disclosure statement Ex.PW20/M. He moved an application for TIP vide application Ex.PW20/N, and got conducted the TIP proceedings PW20/O. He obtained the two days PC remand of accused Rajaram and after completion of the investigation, I filed the chargesheet against accused Rajaram.
37. Thereafter, prosecution evidence was closed and statement of accused persons u/s 313 CrPC SC No. 53/14 State vs Praveen @sonu & ors (Page 21 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC was recorded. During the statement u/s 313 CrPC, accused persons denied the allegations against them. They did not opt to lead any evidence in their defence .
38. I have perused the record and heard the ld Adll PP for the state and the ld counsel for the accused persons .
39. There are two sets of charges against the accused person. One set of charge is for the offence u/s 395/120 B IPC against all the accused persons alleging that they entered into a criminal conspiracy to commit dacoity and in pursuance of the said criminal conspiracy they committed dacoity of Rs 1241970/-( Rs Twelve lac forty one thousand nine hundred and seventy) belonging to M/S Bharat Distributer Pvt Ltd. Another set of charges is against accused Shiv Kumar, Kamlesh , Praveen and Laxman that they were found in possession of stolen property knowing or having reasons to believe that same had been transferred by commission of dacoity .
40. First of all take the offence u/s 395/120 B IPC. Although prosecution has examined twenty SC No. 53/14 State vs Praveen @sonu & ors (Page 22 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC witnesses but entire case of the prosecution rested upon the testimony of PW4 Umesh Paswan who is the victim of the incident. PW4 Umesh Paswan was working as driver in the company M/S Bharat Distributer Pvt Ltd and according to the case of the prosecution he had been handed over the cartoon having Rs 1241970/-( Rs Twelve lac forty one thousand nine hundred and seventy) to be delivered at the resident of PW5 Balbir Singh. PW4 Umesh Paswan completely turned hostile qua the identity of the accused persons. He could not identify any of the accused persons before the court.
41. PW4 Umesh Pawan deposed that on 24.2.2005 at about 8:45 pm, he was handed over the card board carton containing money by the cashier Anuj for delivering the same at the house of Balbir Singh Sethi at his residence. He took the cartoon and put the same in the car make Santro bearing no. DL-4CM-7742 and went towards the house of Sh Sethi. When he reached in front of Rajouri Garden Aptts, one Zen Car without its head light on, came from the back side and over took from his back side and hit against his car. There were 4-5 persons in the said Zen Car and one of the person was SC No. 53/14 State vs Praveen @sonu & ors (Page 23 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC having "panna" in his hands and came outside from the car and broke both sides glasses of his car and picked up the cartoon from the car. PW4 further deposed that when he tried to stop him, he gave him a fist blow on his face. One another person also got down from the said car with the person who had picked up the cartoon box and gave fist blow to him. Two more persons were sitting in the said Zen Car and kept the Zen Car on . Thereafter, they ran way . Someone made a call at 100 number. Police took him to the hospital where he was medically examined and his statement ExPW4/A was recorded by the police. He further depsed that Santro car was seized vide memo ExPW2/A but stated that he cannot identify the persons who had taken away the cartoon from his possession and had given beatings to him. He cannot tell the number of the Zen Car in which accused persons had come.
42. Even during cross examination by ld Addll PP for state, though PW4 Umesh Paswan admitted of having made the statement ExPW4/A and the facts mentioned therein but denied the suggestion that accused persons are the persons who are present in SC No. 53/14 State vs Praveen @sonu & ors (Page 24 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC the court and he is not identifying them deliberately. Somewhere during his cross examination, he admitted that he had identified accused Praveen on 25.3.2005 who had broken the glasses of his Santro car bearing no. DL-4CM-7742 and accused Laxman during the PC remand and during TIP as the same person who had taken the cartoon from his car and ran away. He has also identified accused Kamlesh as a person who was working in the same company where he was working. But he again denied the suggestion that he is not identifying the accused persons deliberately. The cross examination of PW4 by the state is very strange and confusing one. The entire cross examination of this witness appears to be intended to get admitted the averments made by the witness in his statement ExPW4/A which is shown to have made by him after the incident in the hospital, on the basis of which the present case was registered. A close scrutiny of testimony of PW4 Umesh Paswan would indicate that it is full of doubts, inconsistencies and material contradictions particularly regarding the identification of the accused persons. The testimony of PW4 would reveal that he himself is not sure as to who had committed the offence, whether the SC No. 53/14 State vs Praveen @sonu & ors (Page 25 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC accused persons were involved in the commission of offence or not etc,. That being so it would not be safe to place reliance on such testimony.
43. PW4 Umesh Paswan was cross examined by the ld counsel for the accused persons. During his cross examination, he admitted that he does not remember the colour of Maruti Car and there was darkness at the spot. He further admitted that when ever the accused persons were arrested he was called at the police station for identification of the accused persons and he himself was kept in the police station by the police for three days even after recording his statement. PW4 also admitted that police was doubting him regarding the robbery. This has created further doubt in the story of prosecution.
44. Not only that, PW4 Umesh Paswan was recalled qua accused Praveen and he was examined again on 12.11.2014 . He stated that he cannot identify accused persons who had broken the glasses of his Santro Car. He further stated that he identified accused person before the police during investigation and not SC No. 53/14 State vs Praveen @sonu & ors (Page 26 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC before the court. He denied the suggestion put by the ld Adll PP for state that accused Praveen had broken the glasses of his Santro Car and committed robbery and he is not identifying accused Praveen deliberately and he has been won over by them. During his cross examination by ld counsel for the accused Praveen, PW4 replied that he had not seen accused Praveen at the time of incident and he had not identified him even before the police. He further admitted that his statement ExPW4/A was never read over to him and police officials simply obtained his signatures on the statement. He further replied that he has not seen any of the accused persons prior to the incident.
45. Since entire testimony of PW4 was doubtful and confusing one, this court deemed it appropriate to ask one question and the following question was put to him:-
Court Question : Whether any of the accused persons present in the court was involved in the commission of crime i.e dacoity of Rs 12,41,970/- which took place on 24.2.2005, at about 8:50 pm :
Ans. None of the accused persons present in the court was involved in the aforesaid incident .
SC No. 53/14 State vs Praveen @sonu & ors (Page 27 of 41 )
D.O.D 12.11.2014 FIR No. 155/2005
P.S Rajouri Garden
u/s 395/120B/412 IPC
(The attention of witness was drawn
towards the accused persons present in the court namely Praveen Kumar @ Sonu, Laxman, Shiv Kumar, Kamlesh Kumar, Raja Ram, sanjay Pandey and Mukesh but witness has failed to identify any of the accused persons)
46. In the light of aforesaid discussion, there is no difficulty in saying that testimony of PW4 is confusing one and he himself is not sure whether the accused persons have committed the offence in question or not. The defence has been able to dent the case of prosecution. PW4 was the only eye witness to the incident. None of the other prosecution witnesses are the eye witnesses. As stated herein above , he was the star witness whose testimony is not sufficient to convict the accused persons for the offence u/s 395/120 B IPC.
47. One of the circumstances against the accused Laxman is that as per the chance print report ExPW15/A, his palm print were matched with the chance print lifted from the Santro Car. This could have been an evidence to corroborate but only on the basis of the same accused Laxman cannot be convicted. There is no public witness SC No. 53/14 State vs Praveen @sonu & ors (Page 28 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC to the lifting of chance print. Chance print are shown to have been lifted on the day of incident ie 24.2.2005. PW15 Inspector Avdesh Kumar deposed that on 4.7.2005, he prepared report ExPW15/A and as per that report, chance print mark Q1 were identical with the left palm print S-1 on the palm impression print of accused Laxman . Other chance prints could not be identified. This is an admitted fact that chance print lifted from the spot till it were sent to the expert, were in possession of the police authorities. It is not clear as to who had taken the chance print to expert. In these circumstances the tempering with the chance print cannot be ruled out. Moreover, as stated herein above, it could have been corroborative piece of evidence but not a substantial piece of evidence to connect accused Laxman with the present crime.
48. By examining PW17 Deepa Verma, prosecution tried to bring on record one more circumstance against accused persons that on diary which was recovered from the possession of accused Kamlesh, some mobile numbers were written and it was in the handwriting of accused Shiv Kumar and Laxman. I SC No. 53/14 State vs Praveen @sonu & ors (Page 29 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC fail to understand how, this diary could be connected to the crime in question. Even if accused persons were known to each other prior to the incident and some mobile numbers were written in the diary of Kamlesh in the handwriting of other co-accused persons, it cannot be a ground to presume that they had entered into a criminal conspiracy to commit the offence as alleged.
49. One more evidence brought by the prosecution is the pointing out memo's regarding the place of incident but it would also not help the prosecution much for the simple reason that place of incident was already in the knowledge of the police authorities when the aforesaid pointing out memo's were got prepared at the instance of the accused persons.
50. According to the prosecution, "Panna"
which was used for breaking the glasses of the Santro Car, was recovered at the instance of the accused Praveen. PW13 HC Naresh deposed that accused Praveen was interrogated and his supplementary disclosure statement ExpW13/A was recorded. Accused Praveen led the police party to the circle 12/13 Block, Subhash Nagar SC No. 53/14 State vs Praveen @sonu & ors (Page 30 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC and got recovered one "Panna" from the fountain of gol chakar which was sealed with the seal of SK and was taken into possession vide seizure memo ExPW13/B. During his cross examination, PW13 admitted that place of recovery of "Panna" was a fountain situated at the middle of the road which was a thorough fair . He further admitted that the same kind of "Panna" is easily available in the market and the area where fountain is situated, is a residential area.
51. Meaning thereby, public persons were available but no public witness to the recovery of "Panna" is there. S.I Satish Kumar (PW20) during his cross examination also admitted that weapon of offence was not having any specific mark on it and such type of "Panna" is easily available in the market. He further admitted that passers by were there at the time of recovery of "Panna" and none of the said person were made witness to the recovery of said "Panna". Although it is alleged that "Panna" was sealed with the seal of SK but no handing over memo was prepared regarding the same. There is no record regarding departure or arrival of the police officials during the investigation and taking SC No. 53/14 State vs Praveen @sonu & ors (Page 31 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC the accused persons from the lockup for recovery of said "Panna". This all goes against the prosecution.
52. Moreover, the incident is dated 24.2.2005.
"Panna" in question is shown to have been recovered on 25.3.2005 i.e about after one month. It is not the case of the prosecution that accused Praveen was in exclusive possession of the said area or fountain from where the "Panna" is shown to have been recovered. Public were having access to the said area . In the background of the fact that the place from where the weapon of offence was recovered, was open place and was accessible and visible to general public, therefore, the recovery of "Panna" has become doubtful.
53. In view of my aforesaid discussion, I am of the opinion that evidence are not sufficient to conclude that prosecution has able to prove its case beyond reasonable doubt against the accused persons for the offence u/s 395/120 B IPC.
54. Now, let me advert to the charges for the offence u/s 412 IPC.
SC No. 53/14 State vs Praveen @sonu & ors (Page 32 of 41 )
D.O.D 12.11.2014 FIR No. 155/2005
P.S Rajouri Garden
u/s 395/120B/412 IPC
55. Accused Praveen, Shiv Kumar, Laxman and Kamlesh are facing trial for the offence u/s 412 IPC on the allegations that they were found in possession of stolen cash of Rs 5000/-, Rs 3000/- , Rs 10000/- and Rs 1000/- respectively knowing well that it was property transferred by the offence of dacoity.
56. The recovery from the aforesaid accused persons has become doubtful for the following reasons:-
a) PW7 Constable Satish deposed that on 12.3.2005, he had joined the investigation of case bearing FIR no.
391/2003 P.S Adarsh Nagar. Accused Praveen Kumar was interrogated by the IO in his presence in that case . On 14.3.2005, accused Praveen came to their office along with his father and admitted his involvement in the present case along with other accused persons. His disclosure statement ExPW9/A was recovered. IO had arrested the accused Praveen in his presence vide arrest memo ExPW9/C and his personal search ExPW9/D was carried out . He further deposed that IO prepared a kalandra u/s 41.1.(A) CrPC and informed the P.S Rajouri Garden regarding the disclosure statement of accused Praveen.
Inspector Sudhir Kumar PW12 , who was posted as S.I in Operation Cell deposed some what on the lines of PW7 Constable Satish. He also deposed that accused Praveen SC No. 53/14 State vs Praveen @sonu & ors (Page 33 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC disclosed about his involvement in the present case. He was arrested and his disclosure statement was recorded. PW12 further deposed that accused Praveen was produced before the court concerned and the IO of Rajouri Garden (IO of the present case) came in Rohini Court . Accused was interrogated by the IO of P.S Rajouri Garden in the court.
IO of the present case is Inspector Satish (PW20). He deposed that on 14.3.2005, on receipt of DD no.11 A regarding arrest of the accused Praveen in Kalandra 41.1.(A) CrPC , he along with constable Vijay reached at the office of operation cell but PW7 and PW12 are silent about this fact. According to them , accused was directly produced before the court where Inspector Satish had come and interrogated the accused.
Further, it has come on record that father of the accused was present on 14.3.2005 when accused is shown to have come to the office of Operation Cell. He was arrested vide arrest memo ExPW9/C but as per arrest memo the information was given to one Smt Sunita and not to his father. Even on the personal search there is no reference about the presence of his father. The copy of kalandra ExPW12/A , which was prepared by special staff by S.I Sudhir Kumar is on record and is also not having any reference that the father of the accused Praveen had also come their along with him. This has created doubt about the arrest of the accused Praveen by special staff SC No. 53/14 State vs Praveen @sonu & ors (Page 34 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC and of having made disclosure statement about his involvement in the present case.
b) Constable Surjeet(PW8) deposed that on 27.3.2005, accused Praveen was taken out from the lock up and he disclosed that he can get recovered the looted property amount of his share from his house. Accused Praveen led the police party to his house and pointed out on Almirah lying in his room located at ground floor and took out the looted cash from its locker and present before the IO. On counting these were found to be a sum of RS 5000/-( 50 notes of Rs 100/- denomination each). One slip was tagged on the currency notes upon which Bharat Distributor Pvt Ltd. IO seized the looted cash vide seizure memo ExPW10/A after sealing the same with the seal of PCG. Accused Praveen also got recovered one carton made of card board and told that he and his associates had robbed that carton which was having cash at that time. IO took into possession empty carton vide seizure memo ExPW10/B vide sealing the same with the seal of PCG.
S.I P.C. Yadav (PW11) have also deposed that aforesaid recovery was effected from the accused Praveen but there is material contradiction in their testimonies. During cross examination PW8 replied that accused Praveen had admitted that money is inside the Almirah and the keys of the SC No. 53/14 State vs Praveen @sonu & ors (Page 35 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC almirah was given by his Bhabhi(Sister-in-law). Meaning thereby , that almirah was locked but during his cross examination PW11 P.C Yadav replied that Almirah was in open condition and the same was not locked.
Further, when the keys of the Almirah was with the Bhabhi it cannot be presumed that accused Praveen was having exclusive possession over the Almirah. It has come on the record that there were other persons also in the family . It has not been brought on record that who is the owner of the said house . In the background of the fact that Almirah keys were with the Bhabhi it cannot be presumed that accused Praveen was having exclusive possession over the said Almirah.
Further, PW8 during his cross examination admitted that there were two bundles of currency notes and both bundles were counted together. He cannot tell how much money/ currency notes were there in the bundles. Both the bundles were almost identical . He further admitted that IO had made it only one which was stapled by the IO. But PW11 S.I P.C Yadav deposed that accused Praveen Kumar @ Sonu got recovered one packet of Rs 100/- having fifty notes. The recovered notes were having slip of Bharat Distributor Pvt Ltd. This has created a serious doubt about the recovery of currency notes at the instance of accused Praveen.
It has come on record that no handing over memo of seal was prepared. It has also come on record that no site SC No. 53/14 State vs Praveen @sonu & ors (Page 36 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC plan of the place of recovery was prepared. One witness to the recovery is saying that there were two bundles and it were mixed by the IO but according to S.I P.C Yadav(Pw11) there was one bundle. It has also come on record that after recovery it was stapled.
c) PW13 HC Naresh deposed that on 26.3.2005, accused Laxman was arrested from his house no. RZ -285, Raj Nagar, Part II, Palam Colony and accused Laxman got recovered one bundle of Rs 100 currency note. On checking the bundle of currency notes, a slip of Bharat Distributor Pvt Ltd was found affixed on it. That bundle was kept in pullanda , sealed with the seal of SK and seized vide seizure memo ExPW13/F. PW13 further deposed that accused Laxman led the police party to Mansarovar park Jhuggies at the juggi of accused Shiv Kumar and accused Shiv Kumar was arrested. Accused Shiv Kumar got recovered thirty currency of Rs 100/- from underneath of his mattress on the bed and one slip of Bharat Distributor Pvt Ltd was found affixed on the bottom of the recovered currency notes. Currency notes were kept in pullanda , sealed with the seal of SK and seized vide seizure memo Ex PW13/I .
During his cross examination, he admitted that no public witnesses were joined during the investigation and at the time of recording disclosure statement of accused persons.
SC No. 53/14 State vs Praveen @sonu & ors (Page 37 of 41 )
D.O.D 12.11.2014 FIR No. 155/2005
P.S Rajouri Garden
u/s 395/120B/412 IPC
PW20 Insp Satish Kumar has also deposed more or less on the lines of PW13 regarding alleged recovery from the possession of the accused Laxman, Shiv Kumar and Kamlesh. The aforesaid recovery is doubtful for the reasons that the testimonies of police officials is of stereo type , it has not been explained that at the time of recovery effected from accused Shiv Kumar and Kamlesh whether accused Laxman was with them or not , what happened with accused persons at the time of recovery from accused Kamlesh. According to the prosecution, accused Shiv Kumar got recovered the money from underneath of the mattress . Recovery has been effected after about one month from the date of incident. It is highly unbelievable and improbable that a person would keep money under the mattress for about one month.
One more reason to disbelieve the testimony of these police officials is that in every recovery there was a slip of Bharat Distributor Pvt Ltd. This also cannot be accepted in the given facts and circumstances that in the loose currency notes one would keep the slip intact. The manner in which the recovery of currency notes is shown to have been effected, itself is sufficient to disbelieve the same and it would not be safe to place reliance on such testimonies.
d) Further, recovered currency notes were not put to the public witnesses for their identification. None of the owner SC No. 53/14 State vs Praveen @sonu & ors (Page 38 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC of the notes actually was there to identify the same. Only from the slips, on which doubt has already been created, it cannot be presumed that currency notes were the same which were stolen or looted . It has been shown that recovery of Rs 3,000/- from accused Shiv Kumar, of Rs 10,000/- from Laxman , Rs 1000/- from Kamlesh and Rs 5000/- from accused Praveen had been effected . It cannot be denied that normally such amount may be available in any house to meet day to day needs .
57. Moreover, in the present case prosecution tried to bring home guilt of the accused persons by relying upon the versions of 2-3 police officials regarding recovery of currency notes from their possession. Although, all these witnesses testified on the lines of the prosecution story but a bare perusal of their version clearly reflects the same to be of stereo type thus it will be highly unsafe to rely upon their version to pass the order of conviction against the accused. It has been held in 1975 CAR 309 (SC) that :
" Prosecution case resting solely on the testimony of Head Constable and three other police constables. No independent witness examined. Prosecution story appearing improbable and unnatural held that the prosecution case cannot be said to be free from SC No. 53/14 State vs Praveen @sonu & ors (Page 39 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC reasonable doubt and the accused is liable to be acquitted".
58. Further versions of aforesaid witnesses remained uncorroborated by an other independent witness to the recovery of currency notes from the possession of the accused persons. Moreover, neither any independent public witness to the recovery has been cited by the prosecution nor examined by the prosecution. The non -joining of the pubic witness creates doubt on the story of prosecution as held in -PAWAN KUMAR VS DELHI ADMINISTRATION 1987 CC Cases 585 HC by Hon'ble High Court of Delhi.
59. After having scrutinized the evidence on record very carefully , I am of the opinion that glaring feature of this case already indicated by me throws considerable suspicion on the prosecution version which have rendered the entire prosecution case doubtful regarding the recovery of currency notes at the instance of the accused persons.
60. In the present case, prosecution has miserably failed to prove the offence against the accused persons beyond shadow of doubt. Thus, I am left with no option SC No. 53/14 State vs Praveen @sonu & ors (Page 40 of 41 ) D.O.D 12.11.2014 FIR No. 155/2005 P.S Rajouri Garden u/s 395/120B/412 IPC but to acquit the accused persons. Accused Praveen Kumar @ Sonu, Sanjay Pandey , Laxman , Shiv Kumar @ Sibbu, Kamlesh, Mukesh @ Raju and Raja Ram ,therefore, stands acquitted from the charges u/s 120 B/395 IPC and accused Shiv Kumar @ Sibu, Kamlesh, Laxman and Praveen Kumar further stands acquitted from the offence u/s 412 IPC.
61. Their sureties stands discharged. Documents , if any be released after cancellation of endorsement.
62. In terms of section 437(A) CrPC, accused persons are directed to furnish bail bond in the sum of Rs 10,000/- each with one surety in the like amount.
63. File be consigned to record room.
Announced in the open (Rajesh Kumar Goel) Court today i.e 12.11.2014 ASJ-5, North Rohini Court SC No. 53/14 State vs Praveen @sonu & ors (Page 41 of 41 )