Delhi District Court
State vs . (1). Pintu on 27 February, 2016
FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 61/15 Unique Case ID No. 02404R0302552012 State Vs. (1). Pintu S/o Sh. Balram Singh R/o P1/389, Sultan Puri, Delhi. (2) Lalit @ Guddu S/o Sh. Mahesh Chand R/o H. No. 5/50, Friends Encalve, Near GBlock, Sultan Puri, Delhi. (3) Sonu @ Chamra S/o Sh. Subhash R/o H. No. W116A26, HMB Jhuggi Camp No. 4, Jwala Puri, Nangloi, Delhi. (4) Naresh @ Nakli @ Ravi @ Rinku S/o Sh. Mohan Lal R/o H. No. 6/20, Friends Enclave, Near F Block, 80 Gazz, Sultan Puri, Delhi. FIR No. : 289/12 Police Station : Mangol Puri Under Sections : 395/397/412 IPC & 25 Arms Act Date of committal to Sessions Court : 09.11.2012 Date on which judgment was reserved : 24.02.2016 Date on which Judgment pronounced : 27.02.2016 State Vs Pintu etc. Page 1 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 JUDGMENT
BRIEF FACTS OF THE CASE
1. The case of the prosecution as mentioned in the chargesheet is as under:
(i). That on 06.08.2012 at about 11.15 am, SI Surender (PW16) alongwith Ct. Ashok (PW10) had been returning back to PS Mangolpuri after attending the call vide DD No. 34B and had reached at Main Road, near Navriya Park, Mangol Puri Industrial Area, PhaseI, when they noticed a lot of commotion and gathering of public persons near DTC bus bearing registration no. DL1PC8715. When SI Surender Kumar made enquiries from public persons, it was revealed that few assailants had committed robbery of valuable belongings from passengers of said bus at the point of knives;
(ii). It is further the case of prosecution that complainant Dharmender Arya (PW2) came forward and made statement (Ex.PW2/A) before SI Surender Kumar, wherein he claimed that on 06.08.2012 at about 11 am, he had boarded the aforesaid DTC bus plying on route no. 944 from Sultan Puri to Central Secretariat. Within few minutes after the bus reached at turn of TBlock, Mangolpuri, PhaseI, Industrial State Vs Pintu etc. Page 2 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 Area, 810 boys stood up from their seats and 45 boys took out knives from their pockets and committed robbery of valuable articles of some of the bus passengers at the point of knives. He also claimed that one of the assailants had committed robbery of cash amount of Rs. 8000/ against him, one of the assailants had also removed gold chain worn by passenger namely Renu (PW6) and they also committed robbery of mobile phone of another passenger namely Anoop Kumar (PW3). After committing the robbery, the assailants forced bus driver to stop the bus at the point of knife, deboarded from the said bus and fled away from there. He could identify the assailants if shown to him;
(iii). It is further the case of prosecution that on the basis of said statement (Ex.PW2/A), FIR in question was got recorded for the offences punishable U/s 395/397 IPC through Ct. Ashok and investigation was entrusted to Inspector Gajender Kumar (PW14);
(iv). It is further the case of prosecution that IO Inspector Gajender Kumar prepared rough site plan at the instance of complainant and recorded statements U/s 161 Cr.P.C. of the victims who were traveling in the aforesaid bus as well as of bus driver and bus conductor;
(v). It is further the case of prosecution that on 08.08.2012, State Vs Pintu etc. Page 3 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 accused Pintu was apprehended on the basis of secret information and one knife was recovered from his possession.
Cash amount of Rs. 775/ was also recovered from him at that time. He disclosed the names of coaccused persons during his interrogation. Accordingly, he was arrested in this case and relevant proceedings were carried out in this regard;
(vi). It is further the case of prosecution that on 10.08.2012, JCL Vijay @ Sudama was apprehended on the identification of complainant Dharmender and cash amount of Rs. 400/ was recovered from his possession. On the same day, accused Lalit @ Guddu was also apprehended in this case on the basis of secret information and robbed chain and weapon of offence i.e. knife was also recovered from his possession.
(vii). It is further the case of prosecution that JCL Kamal @ Harish was also apprehended at the instance of complainant. Accused Pintu and Lalit refused to participate in judicial TIP during the investigation.
(viii). It is further the case of prosecution that on 22.09.2012, intimation was received from HC Mahavir Singh vide DD No. 29A regarding apprehension of accused Sonu @ Chamra U/s 41.1(a) Cr.P.C. and said accused having disclosed his involvement in the present case. Accordingly, said accused State Vs Pintu etc. Page 4 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 was formally arrested in this case and he refused to participate in his judicial TIP. Judicial TIP of recovered chain was also got conducted and thereafter, same was released on superdari.
(ix). It may be mentioned here that while keeping further investigation pending, chargesheet was filed before the Court of MM. During further investigation, accused Naresh @ Nakli was arrested on 14.12.2012 and he also refused to participate in his judicial TIP. However, said accused was subsequently, identified by complainant Dharmender Arya on 17.12.2012 to be amongst the assailants. After completion of investigation qua said accused, supplementary chargesheet was also filed before the Court of Ld. MM.
2. After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
CHARGES FRAMED AGAINST THE ACCUSED PERSONS
3. After hearing arguments on the point of charge, Ld. Predecessor of this Court framed charge for the offence punishable U/s 395 read with Section 397 IPC against accused Pintu, Lalit @ Guddu and Sonu @ Chamra and also framed separate charge in respect of offence State Vs Pintu etc. Page 5 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 punishable U/s 412 IPC and separate charge in respect of offence punishable U/s 25 Arms Act against accused persons namely Pintu and Lalit @ Guddu vide order dated 06.05.2013, to which they pleaded not guilty and claimed trial. Ld. Predecessor also framed separate charge for the offence punishable U/s 395 read with Section 397 IPC against accused Naresh @ Nakli @ Rinku vide order dated 21.12.2013, to which he pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined fourteen witnesses namely PW1W/SI Somna, PW2 Sh. Dharmender Arya, PW3 Sh. Anoop Kumar, PW4 Ms. Preeti Arora, PW5 Sh. Manjit, PW6 Mrs. Renu, PW7 Sh. Pawan Kumar, PW8 W/Ct. Alka, PW9 Ms. Rajni Ranga, PW10 Ct. Ashok Kumar, PW11 Ct. Surender Kumar, PW12 W/SI Krishan, PW13 Ct. Dinesh Kumar, PW14 Inspector Gajender Kumar, PW15 HC Mahavir and PW16 SI Surender during trial.
5. It may be mentioned here that Ld. Additional PP dropped PWs namely HC Sunil Kumar and Ct. Gopal Krishan from the list of witnesses on 27.05.2015 on the ground that they were the witnesses of repetitive facts in respect of which other prosecution witness namely PW15 HC Mahavir had been examined in this case.
6. It is also pertinent to note that the accused persons namely Pintu, Lalit @ Guddu and Sonu @ Chamra made joint statement during trial on 07.05.2015 and accused namely Naresh @ Nakli also made statement on 07.05.2015 that they were not disputing the contents of State Vs Pintu etc. Page 6 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 judicial TIP conducted by Ld. MM during the course of investigation and they had no objection in case said witness may not be summoned during trial. In view of said statements made by accused persons, TIP proceedings of all the four accused persons were exhibited as Ex. PX. Ld. Additional PP also dropped PW namely Ms. Rachna Tiwari Lakhanpal, the then Ld. MM from the list of witnesses.
7. Thereafter, statements U/s 313 Cr.P.C. of all the four accused persons were recorded, during which all the incriminating evidence which came on record, were put to them which they denied. All the accused persons claimed that they are innocent and have been falsely implicated in this case. However, all the accused persons opted not to lead any evidence towards their defence.
8. I have already heard Sh. Pankaj Bhatia, Ld. Additional PP on behalf of State and Ld. defence counsel Sh. Sudhir Kumar Adv. for accused Pintu, ld. counsel Sh. Vijay Kumar Adv. for accused Lalit @ Guddu, ld. counsel Sh. N.S. Malik Adv. for accused Sonu @ Chamra and ld. counsel Sh. Altaf Alvi Adv. on behalf of accused Naresh. I have also gone through the material available on record.
9. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under: State Vs Pintu etc. Page 7 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 PUBLIC WITNESSES:
10. PW2 Sh. Dharmender Arya, PW3 Sh. Anoop Kumar and PW4 Ms. Preeti Arora: All these three witnesses were traveling as passengers in DTC Bus bearing no. DL1PC8715 at the time of incident in question. According to the case of prosecution, PW2 is the complainant and all these three witnesses are victims against whom dacoity was committed by the offenders during the incident in question. Although, the aforesaid three witnesses have supported the case of prosecution to the extent that robbery of their valuable articles was committed by offenders during incident in question on 06.08.2012 while they were traveling in the said bus. However, none of these three public witnesses identified any of the accused herein to be amongst those offenders.
PW2 categorically testified during chief examination that none of the offenders involved in the robbery, was present in the Court on the day when his testimony was recorded during trial. Despite the fact that attention of said witness was drawn towards accused persons during trial, he failed to identify any of the accused herein. He denied to have identified any of the accused before police during investigation. He categorically deposed that none of the accused was arrested at his instance. He also expressed his inability to identify the case property. He deposed that police official had obtained his signatures on some papers on the pretext that some persons had been arrested and his signatures were State Vs Pintu etc. Page 8 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 required on those papers.
Same is the position with PW3 and PW4 as both the said public witnesses also deposed during chief examination that they are not in a position to identify the assailants. They also failed to identify any of the accused herein during trial.
All these three witnesses were also cross examined at length by Ld. Additional PP and all the relevant suggestions on the issue of identity of accused as well as on other relevant points were put to them but same were denied. All the three witnesses have not been cross examined on behalf of accused persons despite grant of opportunity.
11. PW5 Sh. Manjit: This witness was working as driver in DTC. On 06.08.2012 at about 10.50 am, he was plying the bus bearing registration no. DL1PC8715, on route no. 944 from Sultan Puri to Kendriya Terminal. He deposed that conductor of said bus was also alongwith him in the said bus. When said bus reached at TBlock, Phase Industrial Area, Mangolpuri Mor at about 11.00 am, all of a sudden, one boy put knife on his neck and threatened him 'Gaadi Ko Side Me Laga De, Aur Dauno Gate Khol De', due to which he stopped the said bus. The said boys got down from the bus and ran away. He had come to know that one of the assailants had snatched gold chain from one lady passenger and those boys had also robbed mobile phone from one passenger and cash amount from other passenger. However, he categorically deposed that since he could not see the faces of assailants, he cannot identify them. He State Vs Pintu etc. Page 9 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 also failed to identify any of the accused persons during trial.
Said witness was also cross examined at length by Ld. Additional PP and all the relevant suggestions on the aspect of identity of accused as well as on other relevant points were put to him but same were denied. He denied to have made statement Ex.PW5/A before the police.
12. PW6 Mrs. Renu: According to the case of prosecution, this witness was also travelling as passenger in the bus at the time of incident in question. She has supported the case of prosecution by narrating the sequences of facts which led to the incident in question on 06.08.2012 in DTC bus plying on route no. 944. She categorically deposed that 78 boys sitting in the said bus, stood up from their seats and came around her. One of them showed knife to her and another assailant who came from her back side, snatched her gold chain from her neck. They might have shown knives to driver of the bus and after getting the bus stopped, they alighted from the said bus and fled away. She had made call at 100 number, on which police officials reached there. She also called her husband and father in law at the spot.
She further deposed that she had identified one of the assailants who had snatched her gold chain, from the photographs shown to her in PS. She also identified accused Lalit during trial to be said assailant who had snatched her gold chain. However, she could not identify other accused persons during trial.
She also deposed that on 28.08.2012, she had visited Rohini State Vs Pintu etc. Page 10 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 Court and had identified her gold chain from amongst 810 similar chains shown to her by Magistrate. Thereafter, she got the said chain released on superdari, vide superdarinama Ex.PW6/A. She also produced said gold chain (Ex. P1) during trial.
This witness was also cross examined by Ld. Additional PP on certain points, during which her statement Mark PW6/A was read over and explained to her. She admitted that out of 810 assailants, 45 of them were having knives in their hands and they had threatened the passengers at the point of knives not to move from their seats and in case of resistance, they would be killed. She also admitted that some of the assailants took positions at front gate and some of them took positions on rear gate of the bus. She also admitted that the passenger of the bus were got frightened due to said conduct of the assailants. She also admitted that assailants had committed robbery of mobile phone from another passengers and robbery of cash amount from yet another passenger of the said bus. However, she expressed inability to identify remaining accused persons by explaining that due to lapse of considerable time, she was not able to do so.
In her cross examination made on behalf of accused persons, she clarified that police officials had shown one album containing number of photographs without disclosing their names and addresses and out of said photographs, she had identified accused Lalit to be amongst the culprits involved in the commission of offence. She admitted that her State Vs Pintu etc. Page 11 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 chain was shown to her by police officials at PS after about 34 days of the incident.
13. PW7 Sh. Pawan Kumar: This witness was running jewellery shop in the name and style of Durga Jewellers at 1129, Mangol Puri, Delhi. He deposed that on 29.08.2012, police officials of PS Mangol Puri had visited his shop for verification of bill no. 140 with regard to selling of one gold chain to one Hari Shankar R/o U164, Mangol Puri, Delhi. He had verified the said fact from his record. He proved the said bill as Ex.PW7/A. During cross examination, he deposed that bill Ex.PW7/A was a kacha bill, upon which no tax had been paid. He used to file ITR at that time but he had not mentioned the sale of chain in his ITR. POLICE WITNESSES
14. PW1 WSI Somna: This witness was working as Duty Officer at PS Mangol Puri on 06.08.2012. She proved factum of recording of FIR in question on the basis of rukka sent by SI Surender Kumar, on 06.08.2012 at 4.00 pm. She proved computerized copy of FIR as Ex.PW1/A and his endorsement on the rukka as Ex.PW1/B. This witness has not been cross examined by accused persons despite grant of opportunity.
15. PW8 L/Ct. Alka: She was working as DD Writer in PS Mangolpuri on 06.08.2012. She deposed that on 06.08.2012 at about 9.28 State Vs Pintu etc. Page 12 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 am, she had received information from wireless operator regarding accident at Parmarth Road, near Anukampa CNG Pump. Accordingly, she had recorded said information vide DD no. 34B and had telephonically informed contents thereof to SI Surender for appropriate action. She proved attested copy of said DD entry as Ex.PW8/A. This witness has not been cross examined by accused persons despite grant of opportunity.
16. PW10 Ct. Ashok Kumar : This witness was posted at PS Mangol Puri and was on emergency duty. On 06.08.2012 at about 11.15 am, when he alongwith SI Surender after attending DD no. 34B, reached at Main Road, Mangol Puri Industrial Area, PhaseI, Navriya Park, they found one DTC Bus bearing no. DL1PC8715 stationed near the side of the road and noises were coming from inside the said bus. It was informed to them by passengers of the said bus that robbery had been committed by offenders at the point of knife. He got the FIR registered in the present case and handed over rukka of copy of FIR to IO Inspector Gajender Kumar for investigation. Nothing material came on record during his cross examination made on behalf of accused persons.
17. PW11 Ct. Surender Kumar and PW16 SI Surender: Both these witnesses joined investigation with IO Inspector Gajender Kumar on 08.08.2012 when accused Pintu was arrested in this case on the basis of secret information from near Church of UBlock, Mangol Puri, Delhi vide seizure memo Ex.PW11/A. They deposed on identical lines State Vs Pintu etc. Page 13 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 that cash amout of Rs. 775/ and one closed buttondar knife was recovered from the possession of accused Pintu who also made disclosure statement Ex.PW11/C. After preparing sealed pullanda of currency notes, same was seized vide memo Ex.PW11/D. Likewise, after preparing rough sketch Ex.PW11/E and sealed pullanda of said knife, same was seized vide memo Ex.PW11/F. Pointing out memo Ex.PW11/G was also prepared at the instance of said accused. They also identified knife as Ex.P11/1 and currency notes amounting to Rs. 775/ as Ex.P11/2 during trial.
PW16 also deposed that on 06.08.2012 at about 11.15 am when he alongwith Ct. Ashok were returning back to PS after attending call vide DD no. 34B, they noticed DTC bus no. DL1PC8715 parked at the side of the road and lot of commotion coming from the said bus. They accordingly, went there and came to know on enquiry that offenders had committed robbery from passengers of the said bus at the point of knives. He recorded statement Ex.PW2/A of complainant Dharmender and prepared rukka Ex.PW16/A and got the FIR in question registered through Ct. Ashok. IO Inspector Gajender Kumar had recorded statements of the relevant witnesses and also prepared site plan at the instance of complainant Dharmender.
PW16 further deposed that he had produced accused Pintu in muffled face on 09.08.2012 and moved an application for conducting judicial TIP of said accused. He also joined investigation on 10.08.2012, when complainant Dharmender was also joined during investigation, State Vs Pintu etc. Page 14 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 whereafter, JCL Vijay @ Sudama was apprehended and thereafter, accused Lalit, who was arrested from SBlock Chowk on the basis of secret information. He deposed that one gold chain and one button actuated knife was also recovered from the possession of said accused Lalit and was arrested vide memo Ex.PW13/A and also made disclosure statement Ex.PW13/B. After preparing rough sketch vide memo Ex.PW13/D and sealed pullanda of said knife, same was seized vide memo Ex.PW13/E and also prepared sealed pullanda of chain and then seized the same vide memo Ex.PW13/F. Pointing out memo Ex.PW13/F was also prepared at the instance of said accused. He also identified knife as Ex.P11/1 and currency notes amounting to Rs. 775/ as Ex.P11/2 during trial.
He also deposed that on 11.08.2012, he had produced accused Lalit in muffled face for conducting his judicial TIP. Accused Pintu refused to participate in judicial TIP on 21.08.2012, accused Lalit also refused to participate in judicial TIP. On 28.08.2012, judicial TIP of case property was got conducted, during which PW Renu had correctly identifed her gold chain. He further deposed that on 22.09.2012, he had visited PS S.B Dairy on receipt of information vide DD no. 29A from HC Mahavir regarding arrest of accused Sonu @ Chamra and collected relevant documents from HC Mahavir. On 24.09.2012, he formally arrested accused Sonu @ Chamra in the present case vide memo Ex.PW13/H and produced the said accused in muffled face. On State Vs Pintu etc. Page 15 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 27.09.2012, accused Sonu @ Chamra also refused to participate in judicial TIP. He also identified the relevant case property during trial.
PW11 has not been cross examined on behalf of accused Lalit @ Guddu, Sonu @ Chamra and Naresh @ Nakli. However, in his cross examination on behalf of accused Pintu, PW11 deposed that there was a Church and Market near the place of apprehension of accused Pintu. Despite the fact that IO had requested 45 passersby to join the investigation but none agreed. No effort was made to call any person from inside the Church for joining the investigation. He could not tell if IO had requested any of the shopkeepers for joining the investigation. He admitted that there is no identification mark om recovered currency notes. He could not disclose if judicial TIP of said currency notes was got conducted during investigation or not. However, he denied the suggestion that no knife was recovered from the possession of accused Pintu and the currency notes were infact belonging to accused Pintu but same were wrongly shown to be part of the robbed amount.
In his cross examination, PW16 deposed that he alongwith Ct. Dinesh had gone to SBlock on his private motorcycle. At SBlock, Inspector Gajender Kumar met them in government gypsy. He admitted that there were shops near the place of apprehension of accused Lalit. He further deposed that IO had requested few shopkeepers to join the investigation but none agreed. Complainant Dharmender was also present with them at that time. Accused Lalit was arrested at about 10.20 pm. He State Vs Pintu etc. Page 16 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 denied the relevant suggestions put to him on behalf of accused persons.
18. PW12 W/ASI Krishna: This witness was working as Duty Officer at PS Mangol Puri. On 22.09.2012 at about 3.45 pm, she received information through telephone from HC Mahavir regarding arrest of accused Sonu @ Chamra vide DD no. 17/A U/s 41.1 Cr.P.C. She lodged DD no. 29A dated 22.09.2012. She proved attested copy thereof as Ex.PW12/A. This witness has not been cross examined by the accused persons despite grant of opportunity.
19. PW13 Ct. Dinesh Kumar: This witness alongwith IO Inspector Gajender Kumar had joined investigation of this case on 10.08.2012. He deposed on identical lines with regard to apprehension of JCL Vijay @ Sudama and arrest of accused Lalit @ Guddu and recovery of knife and gold chain from the possession of said accused, as deposed by PW 16 whose testimony has already been discussed herein above. He again joined investigation with IO on 11.08.2012, when JCL Harish @ Kamal is claimed to have been apprehended. He also deposed on identical lines to the testimony of PW16 in this regard. He also remained associated during investigation on 24.09.2012 and deposed on identical lines as testified by PW16 with regard to the proceedings carried out on that day.
In his cross examination, he deposed that he alongwith SI Surender had gone to S Block on private motorcycle. At S Block, they had met IO Inspector Gajender Kumar alongwith his driver, operator and State Vs Pintu etc. Page 17 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 complainant Dharmender who had come in government gypsy. IO had requested few shopkeepers to join the investigation but none agreed. He denied the suggestion that no knife or gold chain were recovered from the possession of accused Lalit @ Guddu and accused persons were not arrested in the manner or from the place as deposed by him during chief examination.
20. PW14 Inspector Gajender Kumar: He is the IO of this case. He has deposed about the entire investigation carried out by him during investigation. He deposed on identical lines as deposed by PW11 Ct. Surender Kumar, PW13 Ct. Dinesh Kumar and PW16 SI Surender whose testimonies have already been discussed in the preceding paras. He deposed that he had prepared rough site plan Ex. PW2/B at the instance of complainant Dharmender. He also deposed about the arrest and consequent recovery of knife and cash amount of Rs. 775/ from the possession of accused Pintu and arrest and consequent recovery of knife and gold chain from the possession of accused Lalit @ Guddu and the relevant proceedings including preparation of rough sketch, sealed pullandas and seizure memos, conducted by him on the relevant dates. He also deposed that during investigation, one of the victims namely Renu had produced bill regarding purchase of gold chain and another victim namely Anup Kumar had produced bill regarding purchase of mobile phone. He had got the bill of chain verified from the shopkeeper namely Pawan Kumar.
State Vs Pintu etc. Page 18 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 In his cross examination on behalf of accused persons, he deposed that Ct. Dinesh and SI Surender had come to S Block on private motorcycle and met him at said place. He did not make driver and operator as witnesses in the present case as they were present in government gypsy which was parked at some distance away from the place of apprehension of accused Lalit @ Guddu. He admitted that there were shops near the place of apprehension of said accused and deposed that he had requested few shopkeepers to join the investigation but none agreed. However, no legal action was taken against them. Complainant Dharmender was also with them when they had gone to S Block. He denied the suggestion that no knife and chain were recovered from the possession of accused Lalit @ Guddu.
21. PW15 HC Mahavir: On 22.09.2012, he alongwith Ct. Gopal Krishan and HC Sunil were on patrolling duty. On the basis of secret information, he had prepared raiding party and had apprehended accused Sonu @ Chamra and also conducted his personal search. He proved arrest memo in respect of accused Sonu @ Chamra as Ex.PW15/A and his personal search memo as Ex.PW15/B. He had also recorded disclosure statement of said accused and proved the same as Ex.PW15/C and also proved DD no. 17A as Ex.PW15/D and kalandara U/s 41.1.(A) Cr.P.C. as Ex.PW15/E. During cross examination, he deposed that he had requested public persons present near the spot of apprehension of accused Sonu @ State Vs Pintu etc. Page 19 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 Chamra but none of them joined the proceedings.
FORMAL WITNESS:
22. PW9 Ms. Rajni Ranga: On 14.08.2012, she while working as Link MM, had conducted judicial TIP of accused Pintu. She proved application for conducting TIP as Ex.PW9/B, TIP proceedings as Ex.PW9/A and the application for obtaining copy of TIP proceedings as Ex.PW9/C. She also exhibited the envelope containing the said TIP proceedings as Ex.PW9/D. She testified that accused Pintu had refused to participate in judicial TIP.
On 21.08.2012, she had also conducted judicial TIP of accused Lalit @ Guddu. She proved application for conducting TIP as Ex.PW9/F, TIP proceedings as Ex.PW9/E and the application for obtaining copy of TIP proceedings as Ex.PW9/G. She also exhibited the envelope containing the said TIP proceedings as Ex.PW9/H. She testified that accused Lalit @ Guddu had refused to participate in judicial TIP.
On 27.09.2012, she had also conducted judicial TIP of accused Sonu @ Chamra. She proved application for conducting TIP as Ex.PW9/K, TIP proceedings as Ex.PW9/J and the application for obtaining copy of TIP proceedings as Ex.PW9/L. She also exhibited the envelope containing the aforesaid TIP proceedings as Ex.PW9/M. She testified that accused Sonu @ Chamra had refused to participate in judicial TIP.
State Vs Pintu etc. Page 20 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 On 28.08.2012, she had also conducted judicial TIP of case property i.e. Gold coloured chain. She proved application for conducting TIP as Ex.PW9/O, TIP proceedings as Ex.PW9/N and the application for obtaining copy of TIP proceedings as Ex.PW9/P. She also exhibited the envelope containing the aforesaid TIP proceedings as Ex.PW9/Q. The accused persons preferred not to cross examine her despite grant of opportunity.
ARGUMENTS ADVANCED AND CASE LAW CITED
23. At the very outset, Ld. Additional PP fairly conceded that charge in respect of offence punishable U/s 395 read with section 397 IPC framed against accused Pintu, Sonu @ Chamra and Naresh @ Nakli could not be proved during trial as none of the victims/public witnesses examined during trial, has identified said three accused during trial to be amongst the dacoits or having committed dacoity against any of them at the point of knives. However, he vehemently argued that charge framed against accused Lalit @ Guddu has been duly proved as he has been identified by one of the public witnesses i.e. PW6 Renu during trial. He further argued that offence U/s 25 Arms Act is also proved against accused Pintu and accused Lalit @ Guddu, in view of recovery of two separate button actuated knives from their respective possession on 08.08.2012 and 10.08.2012 respectively. For the said purpose, he also relied upon the testimonies of relevant recovery witnesses i.e. PW12, State Vs Pintu etc. Page 21 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 PW13, PW14 & PW16. He also argued that there is recovery of cash amount of Rs. 775/ which is part of the amount in respect of which dacoity had been committed, from possession of accused Pintu. Thus, even if charge for the offence punishable under Section 412 IPC could not be proved against said accused but offence punishable U/s 411 IPC is proved against accused Pintu. He therefore, urged that said accused persons should be convicted accordingly.
24. On the other hand, Ld. defence counsels appearing on behalf of accused persons namely Pintu, Sonu @ Chamra and Naresh @ Nakli vehemently argued that the prosecution has failed to establish the charges levelled against accused persons beyond reasonable doubt. For the said purpose, they relied upon testimonies of public witnesses i.e. PW2 to PW6 examined during trial. They argued that none of the said public witnesses has identified said three accused during trial to be amongst the offenders and therefore, they are entitled to be acquitted in this case.
Ld. Counsel of accused Pintu further argued that prosecution has also failed to prove charge in respect of offence punishable U/s 25 Arms Act against said accused beyond reasonable doubt. He argued that no independent public witness is shown to have been joined at the time of recovery of said knife despite their availability and thus, the possibility of planting of knife against said accused cannot be ruled out. He therefore, urged that benefit of doubt should be given to the accused on said ground.
25. Ld. Counsel of accused Lalit @ Guddu also argued that the State Vs Pintu etc. Page 22 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 entire burden to prove its case was upon the prosecution but prosecution failed to discharge the said burden against accused Lalit @ Guddu as well, beyond pales of reasonable doubt. In order to buttress said submission, he referred to the testimonies of PW2, PW3, PW4 and PW5 in order to bring home his point that said public witnesses turned hostile to the case of prosecution on the aspect of identity of all the accused persons including accused Lalit @ Guddu and thus, said accused is also entitled to benefit of doubt.
26. It is well settled principle of law that an essential element of offence of dacoity is that five or more persons must conjointly commit or attempt to commit robbery (Reliance placed on AIR 1957 SC 320, 1992 Cr.L.J. 3819 and AIR 1962 Manipur 7). It also needs no emphasis that actual participation by every one of the five or more persons in commission of the robbery whether as major actors or aiders, is necessary for the purpose of attracting offence U/s 395 IPC. Still if any authority is required then reference with advantage can be made to the judgment of Hon'ble Apex Court reported at AIR 1973 SC 760. In other words, there must be some material available on record in order to show that there was assembly of atleast five persons in order to constitute the offence of dacoity.
27. Before dealing with the rival submissions made on behalf of both the sides, it may be reiterated that all the four accused persons were charged with the offence punishable U/s 395 read with Section 397 IPC. State Vs Pintu etc. Page 23 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 Accused Pintu and Lalit @ Guddu were also charged for the offence punishable U/s 412 IPC and Section 25 Arms Act. Firstly, I shall take the case of accused persons namely Pintu, Sonu @ Chamra and Naresh @ Nakli. As already mentioned above, none of the public witnesses i.e. PW2 to PW6 has identified said three accused persons during trial, to be amongst the offenders who had committed dacoity of their valuable articles. All the said public witnesses failed to support the case of prosecution on the aspect of identity of said accused persons during trial, despite the fact that their attention was specifically drawn towards said accused persons.
28. The prosecution had produced and examined only aforesaid five public witnesses during trial and the case of prosecution was rested upon the testimonies of said five public witnesses, in order to bring home the guilt of aforesaid three accused persons for the offence punishable U/s 395 read with Section 397 IPC. Thus, said five witnesses alone could have proved the case of prosecution qua said three accused in respect of the said offence by deposing on the lines of prosecution story and by identifying them during trial. Since none of them has been able to identify the aforesaid three accused persons during trial, Court finds considerable force in the submission made on their behalf that the prosecution has been unsuccessful in connecting said three accused with the offence of dacoity at the point of knives punishable U/s 395 read with section 397 IPC. There is no iota of evidence available on record that said State Vs Pintu etc. Page 24 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 three accused were amongst the dacoits who had committed dacoity of the valuable articles belonging to PW2, PW3, PW4 and PW6. Thus, said three accused persons namely Pintu, Sonu @ Chamra and Naresh @ Nakli are entitled to be acquitted for the said offence, for want of sufficient evidence against them on record. It is held accordingly.
29. Although, cash amount of Rs. 775/ is claimed to have been recovered from the possession of accused Pintu at the time of his arrest and prosecution story claimed that said amount was part of the robbed amount. However, there is no cogent evidence available on record to prove the said fact. The incident in question is shown to have taken on 06.08.2012, while accused Pintu is shown to have been arrested on 08.08.2012. It has been admitted by one of the alleged recovery witnesses i.e. PW11 Ct. Surender Kumar, PW16 Surender and PW14 Inspector Gajender Kumar that no particular identification mark was put on the said recovered currency notes. Moreover, PW2 Dharmender Arya (complainant) himself has not been able to identify the said currency notes during trial. Furthermore, no judicial TIP of currency notes is shown to have been got conducted through complainant Dharmender Arya (PW2) during investigation. Thus, there is no iota of evidence to show that recovered currency notes of Rs. 775/ were part of the amount in respect of which dacoity had been committed against PW2 Dharmender Arya.
30. This brings me down to the offence punishable U/s 25 Arms Act charged against accused Pintu. As rightly argued by Ld. defence State Vs Pintu etc. Page 25 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 counsel of said accused, recovery of knife from said accused could not be proved beyond doubt. PW11 has admitted during his cross examination that there was a Church and also Market near the place of apprehension of said accused. However, no effort was made to join either Priest or any other person from inside said Church during investigation. From the testimony of PW11, it is also manifestly clear that no sincere effort was made by IO to join any of the nearby shopkeepers for joining the recovery proceedings at that point of time. In view of these facts and circumstances, the possibility of planting of knife against accused Pintu cannot be ruled out. Thus, accused Pintu is entitled to benefit of doubt. It is well settled law that whenever two views are possible on the basis of evidence available on record, the view which goes in favour of accused, should be accepted by the Court. Thus, Court is of the view that prosecution has failed to prove the charge regarding recovery of button actuated knife from the possession of accused Pintu punishable U/s 25 Arms Act, beyond pales of reasonable doubt.
31. Now, I shall take up the case of accused Lalit @ Guddu. So far as the offence punishable U/s 397 IPC is concerned, same could not be proved against said accused during trial. Out of five key public witnesses examined during trial, PW2 to PW5 have not deposed anything against said accused. Even PW6 namely Renu has not deposed during trial that said accused was either armed with any deadly weapon or that he had used any deadly weapon at the time of committing the incident against State Vs Pintu etc. Page 26 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 her. That being so, Court is of the view that offence punishable U/s 397 IPC could not be established against said accused beyond reasonable doubt.
32. Nevertheless, the prosecution has been successful in bringing home the guilt of accused Lalit @ Guddu for the offence punishable U/s 395 IPC. No doubt, PW2 to PW5 have not identified said accused during trial to be amongst the dacoits but nevertheless, PW6 Renu who is also one of the victims, has identified accused Lalit @ Guddu during trial to be one of the assailants having committed dacoity of her wearing gold chain.
33. There is no merit in the argument advanced on behalf of said accused that the testimony of PW6 is not reliable as she is an interested witness or that reasonable doubt is created in the case of prosecution merely because other public witnesses i.e. PW2 to PW5 have failed to identify him during trial.
34. All the relevant public witnesses i.e. PW2 to PW6 have deposed on identical lines that the offenders were more than five in number. Some of them have been categorical in their depositions that they were between 810 in number and some of them were armed with knives and all of them have committed dacoity of valuable articles of some of the passengers at the point of said knives. All the said public witnesses have supported the case of prosecution to the extent that incident of dacoity had been committed by assailants who were more than State Vs Pintu etc. Page 27 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 five in number on alleged date, time and place. It may be noted that all the accused persons including accused Lalit @ Guddu preferred not to cross examine PW2 to PW5. They have cross examined only PW6 Renu who has not only identified accused Lalit @ Guddu during trial amongst one of the offenders but has also identified recovered gold chain (Ex.P1) during trial.
35. It is well settled law that even the testimony of hostile witness can be considered by the Court to the extent whereby witness has supported the prosecution story. Still if any authority is required then reference with advantage can be made to the judgment in the matter titled as "Bhajju @ Karan Singh Vs. State of M.P" reported at 2012 STPL (Web) 173 SC, wherein it has been held as under:
19. Now, we shall discuss the effect of hostile witnesses as well as the worth of the defence put forward on behalf of the Appellant/accused. Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 of the Code of Criminal Procedure., the prosecutor, with the permission of the Court, can pray to the Court for declaring that witness hostile and for granting leave to crossexamine the said witness. If such a permission is granted by the Court then the witness is subjected to crossexamination by the prosecutor as well as an opportunity is provided to the defence to cross examine such witnesses, if he so desires. In other words, there is a limited examinationinchief, cross examination by the prosecutor and cross examination by the counsel for the accused. It is admissible to use the examinationinchief as well as the crossexamination of the said witness in so far as it supports the case of the prosecution. It is settled law that the evidence of hostile State Vs Pintu etc. Page 28 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Act enables the Court, in its discretion, to permit the person who calls a witness, to put in crossexamination by the adverse party. The view that the evidence of the witness who has been called and cross examined by the party with the leave of the Court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The Courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be crossexamined can also be relied upon by the prosecution.
36. Moreover, it is the quality of evidence which is material and not the quantity of evidence. Same is also the mandate of the law as provided in Section 134 of Indian Evidence Act, which expressly provides that no particular number of witness shall in any case be required for proving any fact. In the matter titled as "Sheelam Remesh & Anr. Vs. State of A.P." reported in JT 1999 (8) S.C. 537, it was observed by Hon'ble Apex Court as under: "Courts are concerned with the quality and not quantity of evidence and in a criminal trial, conviction can be based on a sole evidence of a witness, if it inspire confidence".
37. Ld. Defence counsel of accused Lalit @ Guddu assailed the testimony of PW6 Renu by arguing that photographs of said accused were State Vs Pintu etc. Page 29 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 shown to her in the police station and thus, the identification of said accused by said witness during trial, is of no use. Therefore, accused should not be convicted on the basis of such identification. He also referred to the relevant portion of the testimony of PW6 in this regard. However, said argument is found to be totally misconceived and is liable to be rejected. PW6 deposed during chief examination that police officials had shown photographs of some criminals to her and she had identified one of them as the offender who had snatched her gold chain. After deposing so, she also pointed out towards accused Lalit @ Guddu during trial to be the same person who had removed her gold chain at the time of incident in question. She further clarified during her cross examination on behalf of accused persons that police officials had shown her album containing number of photographs without disclosing names and addresses of the persons whose photographs were there in the said album and after going through the same, she had identified one of those persons as culprit who was involved in the commission of crime. PW6 reiterated that she had identified the same person to whom she had identified before the Court during trial. Thus, there is no reason to disbelieve the testimony of PW6 or to overlook the identification of accused Lalit @ Guddu by her during trial.
38. Ld. Defence counsel argued that accused Lalit @ Guddu was not having any criminal record in PS Mangolpuri prior to the registration of FIR in question and thus, there was no occasion for photograph of said State Vs Pintu etc. Page 30 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 accused being available in the record of said police station. Therefore, the testimony of PW6 is liable to be disbelieved. However, said argument is totally misconceived and cannot be appreciated by the Court in the absence of any material being brought on record by the said accused. It was the duty of said accused to put relevant questions during cross examination of relevant witnesses so that it could come on record that accused Lalit @ Guddu was not having any FIR registered against him at PS Mangolpuri prior to the registration of FIR in question. No such material or record has been brought on record in this regard.
39. Moreover, the gold chain of PW6 is also proved to have been recovered from the possession of accused Lalit @ Guddu at the time of his arrest on 10.08.2012. Said recovered gold chain has been identified by PW6 during judicial TIP held before PW9 on 28.08.2012 vide TIP proceedings Ex.PW9/N.
40. Furthermore, the prosecution has also examined PW7 Sh. Pawan Kumar who was running jewellery shop. Said witness has also affirmed during trial that he had sold one gold chain vide receipt/ cash memo dated 19.07.2011 (Ex.PW7/A) to one Hari Shankar, R/o U164, Mangol Puri, Delhi. PW6 is also shown to be R/o U164, Mangol Puri, Delhi. Accused Lalit @ Guddu could not demolish the testimony of PW7 during cross examination. The presence of PW6 in the bus in which incident is shown to have been committed, is also proved beyond doubt in view of the fact that accused themselves have given suggestion in State Vs Pintu etc. Page 31 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 affirmative manner her cross examination that the incident was committed within 34 minutes and PW6 admitted the said suggestion to be correct. Same shows that accused themselves are not disputing the presence of PW6 at the scene of crime by giving said suggestion.
41. Had it been the situation for PW6 would have been an interested witness, nothing had prevented her from identifying remaining accused persons during trial. In case PW6 would have been tutored by IO or any other police official, it was not difficult for them to ensure that PW6 also identify remaining accused persons during trial. However, PW6 fairly testified during trial that she was not able to identify other assailants due to lapse of considerable time. Thus, the testimony of PW6 is found to be quite natural, reliable and trustworthy.
42. There is one more reason for taking the aforesaid view by the Court. PW6 Renu herself is a victim at the hands of offenders. There is no reason as to why she would allow actual offenders to go scotfree and would falsely depose against accused Lalit @ Guddu in order to implicate him in this case. It is nowhere the case of said accused that he was previously known to PW6 or they were having any kind of enmity prior to the incident in question. If the said accused wants this Court to believe that he has been implicated falsely, the least which was expected from him was to at least come out as to what could have been the motive for PW6 Renu to depose falsely against him. But no such reason is even mentioned or suggested to her. The accused Lalit @ Guddu cannot expect State Vs Pintu etc. Page 32 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 this Court to believe his version by simple bare allegation that he is falsely implicated. At least some reason should have been put forth by him to suggest as to what could have been motive of the police in implicating him. In the absence of this, I do not find any reason to throw out the testimonies of the prosecution witnesses.
43. After considering the evidence, oral as well as documentary, which has come on record during trial, there is no scope of doubt that the prosecution has proved beyond pales of reasonable doubt that accused Lalit @ Guddu was amongst the dacoits who had committed dacoity on 06.08.2012 in moving bus bearing registration no. DL1PC8715 plying on route no. 944 from Sultan Puri to Central Secretariat and thus, said accused is liable to be convicted for the offence punishable U/s 395 IPC.
44. Likewise, the recovery of button actuated knife from the possession of accused Lalit @ Guddu is found to have been duly proved by prosecution during trial. In order to prove said recovery, the prosecution has examined PW13 Ct. Dinesh Kumar, PW14 Inspector Gajender Kumar and PW16 SI Surender. All the said three witnesses consistently deposed regarding recovery of gold chain ( Ex. P1) and knife ( Ex. P13/1) from the possession of accused Lalit @ Guddu immediately after his arrest on 10.08.2012 from S Block Chowk. Although, Ld. counsel of said accused also tried to create doubt in the testimonies of said witnesses by contending that on the one hand, PW13 and PW16 have claimed that they had gone to S Block on private motorcycle but on the State Vs Pintu etc. Page 33 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 other hand, said witnesses have deposed that the police officials had come in government gypsy. The said argument is totally devoid of any merit. It has been duly explained by all the said three witnesses in their respective testimonies that PW13 and PW16 had gone to S Block on the motorcycle of PW16. PW14 alongwith his driver and operator had gone to S Block in government gypsy. At S Block, PW13 and PW16 met with PW14 and from there, they went to S Block Chowk alongwith secret informer and apprehended accused Lalit @ Guddu. Nothing contradictory could be elicited during cross examination of said three police witnesses as regards the recovery of gold chain and knife from the possession of accused Lalit @ Guddu during their respective cross examination. Moreover, it has been consistently explained by said witnesses that despite the fact that some of the nearby shopkeepers were requested to join the investigation but none agreed. Said portion of their respective depositions has not been disputed by accused Lalit @ Guddu during cross examination. Thus, there is no reason to disbelieve the testimonies of said three police witnesses on the aspect of recovery of knife and gold chain from said accused. Thus, it is held that prosecution has proved the guilt of accused Lalit @ Guddu in respect of offence punishable U/s 25 Arms Act beyond shadow of doubt.
45. In the light of aforesaid discussion, accused persons namely Pintu, Sonu @ Chamra and Naresh @ Nakli @ Ravi @ Rinku are hereby acquitted for the offence punishable U/s 395 read with Section 397 IPC. Accused Pintu is also acquitted for the offence punishable U/s 25 of Arms State Vs Pintu etc. Page 34 of 35 FIR No. 289/12; U/s 395/397/412 IPC & U/s 25 Arms Act; PS Mangol Puri D.O.D. 27.02.2016 Act. Accused Lalit @ Guddu is also acquitted for the offence punishable U/s 397 IPC. However, he is convicted for the offence punishable U/s 395 IPC as also for the offence punishable U/s 25 Arms Act.
Announced in open Court today (Vidya Prakash)
On 27.02.2016 Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State Vs Pintu etc. Page 35 of 35