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Delhi District Court

Tiwari vs . The State Of Madhya Pradesh Reported As ... on 29 March, 2022

               IN THE COURT OF MS. HEMANI MALHOTRA
       ADDL.SESSIONS JUDGE-09 (WEST), TIS HAZARI COURTS, DELHI


CNR NO.DLWT01-000406-2013
Sessions Case No.56479/2016
FIR No.164/13
PS Nangloi
Under Sections 392//// IPC
and Sections 25/ of Arms Act


STATE

VERSUS

    1. PRADEEP MITTAL @ CHHOTU @ ANUJ
       S/O HARISH CHAND MITTAL
       R/O H.NO.C-62, EXTENSION-II,
       NANGLOI,
       DELHI

    2. ZAKIR HUSSAIN @ KANA @ SALIM
       S/O BABU KHAN
       R/O H.NO.X-241, CAMP NO.1,
       NANGLOI,
       DELHI

    3. PURAN @ SUMIT
       S/O BHIKHAM SINGH
       R/O H.NO.D-183, EXTENSION-II D,
       NANGLOI,
       DELHI
                                                .....ACCUSED PERSONS



            Date of institution             :   23.09.2013
            Date of receiving by this Court :   19.04.2021
            Date of conclusion of arguments :   23.03.2021
            Date of announcement of judgment:   29.03.2022




S.C. No.56479/16                                     Page 1 of 12
 JUDGMENT

1. Accused Pradeep Mittal @ Chhotu @ Anuj, Zakir Hussain @ Kana @ Salim and Puran @ Sumit were committed to the Court of Sessions to stand trial under Sections 392/394/397/411/34 IPC and Sections 25, 27/54/59 of Arms Act for allegedly having robbed Rs.1.50 lakhs from the plastic godown of complainant Baldev Krishan on gun point at about 12 noon on 29.05.2013.

FACTS OF THE CASE

2. Briefly stated, the facts of prosecution case are that on 29.05.2013, DD No.21A was recorded regarding robbery of Rs.1.5 lakhs on gun point. On receipt of said DD, ASI Rajbir/PW7 along with Ct. Ramesh/PW5 reached the spot i.e. Plastic godown at Swarn Park near Saini Dharamkanta, Nangloi, Delhi. In the meantime, other senior officers and staff also reached there, where complainant Baldev Krishan (PW3) along with his brother Sanjay/PW14 and nephew Dheeraj/PW12 met them. ASI Rajbir/PW7 recorded the statement (Ex.PW3/A) of complainant Baldev Krishan/PW3 wherein he stated that at about 12 noon on 29.05.2013, he along with Sanjay, Dheeraj and Munim Ramesh was present at his Plastic scrap godown. Suddenly, two armed boys entered into the office of his godown holding their other Munim Anil at gun point. Both the boys threatened them and demanded the complainant/PW3 to hand over all the money. Out of fear, complainant/PW3 took out Rs.1.5 lakhs from almirah and put the money in an empty bag. When Munim Ramesh/PW13 tried standing up, one of those boys who had covered his mouth with a cloth, hit Ramesh with the butt of his weapon due to which Ramesh sustained injuries. Thereafter, both of them picked the bag containing money and left the office. They also heard gun shots being fired from outside. When complainant/PW3 and the others came out of the office to chase them, S.C. No.56479/16 Page 2 of 12 the robbers along with another accomplice (driver of the motorcycle) escaped on a motorcycle which had its engine running. Although, complainant and the others chased the robbers, but to no avail.

3. The complainant in his First Information Statement (Ex.PW3/A) described the age of robbers as between 20-25 and stated that due to fear, he could not note their description. He further stated that the entire incident was recorded in the CCTV camera and the identity of robbers could be ascertained from there.

4. On the basis of the First Information Statement (Ex.PW3/A) of the complainant/PW3, FIR under Sections 392/394/397/34 IPC and Sections 25/27/54/59 of Arms Act was got registered and injured Ramesh Kumar/PW13 was removed to government hospital for treatment. After registration of FIR (Ex.PW1/A), further investigation of this case was handed over to PW15/Insp. Balbir Singh, the then SI.

5. It is further the case of prosecution that during investigation, DVR containing footage of CCTV camera installed in the office of complainant was taken into possession by the police. On 06.06.2013, on the basis of a secret information received by the IO/SI Balbir Singh/PW15, a raiding team was prepared and accused Puran @ Sumit was apprehended with one country made pistol and live cartridge. During interrogation of accused Puran @ Sumit, roles of accused Pradeep Mittal and Zakir Hussain were disclosed.

6. During further investigation, IO/PW15 received an information regarding arrest of accused Zakir Hussain in case FIR No.344/13, PS Sultan Puri u/ss 379/411 IPC. Thereafter, accused Zakir Hussain was also arrested in the present case and subsequently, accused Pradeep Mittal @ Chhotu was arrested in case FIR No.145/13 PS Shahajahan Pur District Alwar, Rajasthan who confessed his involvement in the present case FIR.

7. After completion of investigation, charge-sheet under Sections S.C. No.56479/16 Page 3 of 12 392/394/397/411/34 IPC and Sections 25/27/54/59 of Arms Act was filed.

CHARGE

8. Vide order dated 21.02.2014, learned Predecessor of this Court framed charge under Sections 392/34 IPC and 394/34 IPC against all the three accused, whereas, a charge u/s 397/411 IPC and 25 of Arms Act was framed against accused Puran @ Sumit. Similarly, a separate charge u/s 411 IPC was framed against accused Zakir Hussain @ Kana @ Salim. All the accused persons pleaded not guilty and claimed trial. PROSECUTION WITNESSES

9. In support of its case, the prosecution examined as many as fifteen witnesses.

MATERIAL WITNESSES

10. Baldev Krishan, complainant was examined as PW3; Dheeraj Pawar, nephew of complainant was examined as PW12; Ramesh Kumar, employee/accountant of complainant was examined as PW13 and Sanjay, (brother of complainant) was examined as PW14. FORMAL WITNESSES

11. SI Satpal Singh who proved copy of FIR as Ex.PW1/A and original rukka as Ex.PW1/B was examined as PW1; HC Mukesh, IO of case FIR No.344/13 PS Sultan Puri was examined as PW2; Sh.Satbir Singh Lamba, learned MM who conducted TIP proceedings of accused Pradeep Mittal @ Chhotu as Ex.PW4/A to C was examined as PW4; PSI Sunil Kumar, Incharge I.T. Cell/IO of case FIR No.198/13, PS Sampla was examined as PW6 and ASI Rajveer Singh who proved copy of DD No.46 as Ex.PW7/A was examined as PW7.

MEDICO WITNESSES

12. Dr. Nageshwar Kumar Nagar, Medical Officer, Bhagwan Mahavir Hospital, Delhi who proved MLC of Ramesh Kumar/PW13 as Ex.PW10/A was examined as PW10.

INVESTIGATIONAL WITNESSES

13. Ct. Ramesh Kumar, who reached the spot along with ASI Rajbir Singh was examined as PW5; HC Sudesh Kumar and ASI Bhawnesh Kumar, who participated in the raiding team to arrest accused Puran @ Sumit, were examined as PW8 and PW11 respectively; ASI Rajbir Singh, initial IO was examined as PW9 and Inspector Balbir Singh/IO was examined as PW15.

VERSIONS OF ACCUSED PERSONS

14. After completion of prosecution evidence, statements of accused persons u/s 313 Cr.P.C. were recorded separately vide which they denied allegations levelled against them and claimed to be innocent. The claimed that all the witnesses were interested witnesses.

15. In his statement u/s 313 Cr.P.C., accused Pradeep Mittal stated that he was already shown to the witnesses and therefore, he refused to join the TIP proceedings.

16. I have heard learned Addl. P.P. for the State and learned counsel for the accused persons and have perused the entire record with utmost care. APPRECIATION OF EVIDENCE

17. To bring home the guilt of accused persons, the prosecution placed reliance on the evidence of PW3/Baldev Krishan, PW12/Dheeraj Pawar, PW13/Ramesh Kumar and PW14/Sanjay who were all present in the office of godown when robbery had taken place in their presence. Unfortunately, PW12/Dheeraj Pawar, PW13/Ramesh Kumar and PW14/Sanjay, all turned hostile and failed to identify the accused persons.

18. In his testimony, PW12/Dheeraj Pawar narrated the entire incident and deposed that Rs.1,50,000/- was robbed by two masked robbers who were armed with revolvers, whereas, the third robber was sitting outside their office on a motorcycle. It was also testified by him that both the robbers had caused injury to their accountant Ramesh/PW13.

He, however, failed to identify accused persons as those robbers. In his cross-examination by learned Addl. PP for the State, although, it was admitted by him that only one of the robbers was masked, he stated that he was also wearing goggles and had caused injury to Ramesh/PW13. He categorically stated that he could not say if accused Pradeep Mittal and Zakir Hussain were the robbers who had entered their godown and had robbed them.

19. PW13/Ramesh Kumar, who was the Accountant in the godown and injured by one of the robbers deposed on the same lines, stated that two masked robbers who were armed had entered the godown on the fateful day. One of them who was not only masked but also wearing goggles had hit the butt of his pistol on his head and caused injury to him. When asked to identify the robbers, he failed to point finger at the accused persons. During his cross-examination by learned Addl.PP for the State, he negated the suggestion that he had identified accused Pradeep Mittal on 26.07.2013 i.e. at the time when accused Pradeep Mittal was in custody of the police. He further denied that at the time of incident, accused Pradeep Mittal was not wearing a mask.

20. PW14/Sanjay was another Accountant who had witnessed the incident.

He too deposed verbatim as PW12 and PW13 did and failed to identify accused Pradeep Mittal and Zakir Hussain as the robbers who had entered the office of godown. Qua the third robber i.e. accused Puran @ Sumit, he stated that he had not seen the third robber and it was only subsequent to the incident, he came to know that two robbers had escaped from the spot with the help of the third robber on a motorcycle. Since, PW14 also failed to identify the accused persons as robbers, permission was sought by learned Addl.PP for the State to cross- examine him, however, in his cross-examination, he stuck to his narration made in examination-in-chief and refused to identify the accused persons.

21. PW3/Baldev Krishan testified that at about 12:00 noon on 29.05.2013, when he along with PW14/Sanjay, PW12/Dheeraj and PW13/Ramesh Kumar, Accountant was present in the office of their godown, two persons came inside the office holding Anil who was another Accountant in their godown as captive. Both the robbers were carrying pistols in their hands and they demanded them to hand over whatever money they had. Fearing for his life, PW3/Baldev Krishan handed over Rs.1.50 lakhs to the robbers which they put in a bag. While going out of the office, they fired some shots in the air and fled on a motorcycle which was driven by a third person. One of the robbers who had covered his face with some cloth and was wearing goggles, had hit the butt of his pistol on the head of Ramesh/PW13. PW3 further stated that although, he had not seen the third person/driver of the motorcycle and would not be able to identify him, but he could identify the robbers who had robbed them. He then identified accused Zakir Hussain @ Kana as the robber who was wearing mask with goggles and accused Pradeep Mittal as the second robber. It was, however, stated by him that he had identified accused Zakhir Hussain when he was brought to his godown by the police some time prior to 23.06.2013. Regarding accused Pradeep Mittal @ Chhotu, it was testified by him that he had identified accused Pradeep Mittal @ Chhotu when the police had brought him to his godown after many days of 23.06.2013.

22. Since, the entire incident had been captured by a CCTV camera installed in the godown and the DVR of the same which was seized by the police on 23.06.2013, had not been received from FSL, further examination-in-chief of PW3/Baldev Krishan was deferred. During his further examination-in-chief, it transpired that as per the report of FSL, DVR could not be unlocked since it was password protected. Because, PW3/Baldev Krishan failed to identify accused Puran @ Sumit as the third robber who was outside the godown, learned Addl. PP for the S.C. No.56479/16 Page 7 of 12 State sought permission to cross-examine PW3. However, despite his cross-examination, PW3/Baldev Krishan failed to identify accused Puran @ Sumit and rather stated that he could not see the face of the driver of the motorcycle as at the time of incident, the motorcycle was parked outside the godown.

23. PW3/Baldev Krishan was cross-examined at length by learned counsels for accused persons. In his cross-examination, it was stated by him that when enquiries were made by the police, he had not only given the description of the height of the robbers but had also informed that they were wearing masks. Further, that one of the robbers was also wearing goggles. He was then confronted with his First Information Statement (Ex.PW3/A) and statement u/s 161 Cr.P.C. (Ex.PW3/DA) no description of heights of robbers was given. In his further cross- examination, he admitted that although, he had seen the robbers at the time of incident, but since they were masked, he could not give their precise description. It was also admitted by him that he had identified accused Pradeep Mittal and Zakir Hussain in the court when his examination-in-chief was recorded for the first time on the basis of arrest of accused persons in this case by the police. It was then clarified by him that he could not identify either accused Pradeep Mittal or Zakir Hussain in the court, on his own. On re-examination of PW3/Baldev Krishan by learned Addl. PP for the State, he refuted the suggestion that he had seen the faces of robbers clearly at the time of incident. He once again reiterated that both the robbers were masked at the time of the incident and hence, he could not state if the accused persons were the robbers who had committed robbery in his godown.

24. It was vehemently argued by learned Addl. P.P. for the State that even if in his cross-examination, PW3 turned hostile with respect to the identity of accused persons, the fact that he identified them in his examination-in-chief dated 03.09.2014 cannot be ignored especially S.C. No.56479/16 Page 8 of 12 when his further cross-examination was conducted on 11.10.2021 i.e. after a lapse of 7 years. To substantiate his contentions, he relied upon a decision of Hon'ble Supreme Court titled as KHUJJI @ SURENDRA TIWARI VS. THE STATE OF MADHYA PRADESH reported as 1991 AIR 1853.

25. Per contra, learned counsels for accused Pradeep Mittal and Zakir Hussain argued that PW3/Baldev Krishan had only identified Pradeep Mittal and Zakir Hussain in his examination-in-chief dated 03.09.2014 as the accused had been shown after their arrest to PW3 by the police stating that these were the robbers who had committed armed robbery in the godown of PW3. The same had also been testified by PW3 in his testimony.

26. The bare scrutiny of the testimonies of the eye-witnesses reflect that PW12/Dheeraj, PW13/Ramesh Kumar and PW14/Sanjay all turned hostile qua identification of the accused persons. Only PW3/Baldev Krishan identified accused Pradeep Mittal and accused Zakir Hussain as the armed robbers who had entered the godown and committed robbery at gun point. However, in his cross-examination, he admitted that he could only identify accused Pradeep Mittal and Zakir Hussain as the police had brought them to his godown after their arrest and informed him that these were the robbers who had committed robbery in his godown. Same was the stand taken by them in their statements recorded u/s 313 Cr.P.C.

27. The reliance placed by learned Addl. PP for the State on KHUJJI (SUPRA) is, therefore, in my considered view, rather misplaced. In the said case, the eye-witness supported the case of prosecution in examination-in-chief but in his cross-examination, expressed some doubt regarding the identity of the assailants stating that he had seen their backs only. In the instant case, it is relevant to mention here that the witness PW3 was not confronted on 11.10.2021 with his S.C. No.56479/16 Page 9 of 12 examination-in-chief dated 03.09.2014 by learned Addl.PP for the State to ascertain as to which statement of PW3 was correct. More importantly, PW3/Baldev Krishan, in his testimony, admitted that in his First Information Statement (Ex.PW3/A), he had categorically stated that he could not note the description of the robbers due to fear. Rather, in his testimony before the court, it was testified by him that both the robbers were masked and one of them was also wearing dark glasses/goggles. In such circumstances, it is highly improbable that PW3/Baldev Krishan would have noted the facial features of the culprits and identify them subsequently. Admittedly, no recovery of robbed money was affected from accused Pradeep Mittal and Zakir Hussain. Also, the DVR in which the CCTV footage of the incident was recorded and on which the prosecution was heavily relying upon, could not be opened in the FSL as it was password protected. PW15/Insp. Balbir Singh who was the Investigating Officer, despite having the knowledge that the entire incident was recorded in a CCTV camera, seized the DVR only on 23.06.2013 i.e. almost after one month of the incident and further did not make any effort to collect the password from PW3/Baldev Krishan to unlock the DVR.

28. Thus, considering the testimonies of all the material witnesses i.e. PW12/Dheeraj Pawar, PW13/Ramesh Kumar, PW14/Sanjay and more importantly PW3/Baldev Krishan, it is crystal clear that prosecution miserably failed to prove that it was accused Pradeep Mittal and accused Zakir Hussain who had entered the office of the godown of PW3/Baldev Krishan and committed armed robbery.

29. So far as accused Puran @ Sumit is concerned, it is not the case of prosecution that he had entered the office of godown along with other accused persons to commit robbery. It is the case of prosecution itself that he was parked outside the godown on his motorcycle and had helped accused Pradeep Mittal and Zakir Hussain escape the place of S.C. No.56479/16 Page 10 of 12 incident. He was not seen by any of the witnesses and was only chased by them without any positive outcome. Accused Puran @ Sumit was not identified by any of the witnesses as the third robber. It was testified by all the material witnesses i.e. PW3/Baldev Krishan, PW12/Dheeraj Pawar, PW13/Ramesh Kumar and PW14/Sanjay that they had not seen the third robber as he was standing outside the godown with his motorcycle and had helped the other two armed robbers escape from the spot. Learned Addl.PP for the State stated that in view of the fact that a desi katta was recovered from accused Puran @ Sumit, the prosecution was successful in proving the offence of Section 25 Arms Act. It will not be out of place to mention here that although, a recovery of fire arm (desi katta) was shown to the affected from accused Puran @ Sumit, no sanction u/s 39 of the Arms Act was obtained by the prosecution to prosecute accused Puran @ Sumit under the Arms Act. A feeble attempt was made by the learned Addl. PP for the State after the final arguments to consider his plea to obtain sanction u/s 39 of the Arms Act but same, in the interest of justice, was declined by this court. The prosecution slept over the matter for 9 years and woke up from its slumber at the fag end. The lapse on the part of the IO to obtain sanction at the relevant time and the correct thereof cannot be permitted at this stage.

30. In view of the aforesaid discussion, I am of the considered opinion that prosecution has miserably failed to establish the guilt of accused persons beyond reasonable doubt. Accordingly, accused Pradeep Mittal @ Chhotu @ Anuj, Zakir Hussain @ Kana @ Salim and Puran @ Sumit are given benefit of doubt and are acquitted of the charge under Sections 392/34 IPC and 394/34 IPC framed against them. Accused Puran @ Sumit is also acquitted of the charge u/s 397/411 IPC and Section 25 of Arms Act framed against him. Accused Zakir Hussain and Puran @ Sumit are on bail in this case.

Their bail bonds are cancelled and sureties are discharged. They are, however, directed to furnish bail bonds u/s 437A Cr.P.C. in the sum of Rs.10,000/- each with one surety each of the like amount. Accused Pradeep Mittal be released from the jail, if not required in any other case.

File be consigned to record room.

Announced in the open court on 29th March, 2022 (HEMANI MALHOTRA) Addl.Sessions Judge-09/West, Tis Hazari Courts, Delhi $ S.C. No.56479/16 Page 12 of 12