Delhi District Court
State vs 1. Suresh S/O Sada Shiv R/O B1/493, Nand ... on 4 March, 2015
IN THE COURT OF SH. DINESH BHATT, ASJ06 (CENTRAL)/ TIS
HAZARI COURTS, DELHI
Sessions Case No.:73/14
Unique ID no.:02401R0402032006
State Vs 1. Suresh S/o Sada Shiv R/o B1/493, Nand Nagari, Delhi
2. Rakesh S/o Jeet Singh R/o D1/503, Nand Nagari, Delhi
3. Suresh Kumar S/o Shyam Singh R/o Sector20, Jhuggi Janakpuri, Delhi
4. Akashdeep @ Babli S/o Ami Chand R/o C1/48, Harsh Vihar, P.S. Nand
Nagari, Delhi
5. Shailender @ Pehalwan @ Papu S/o Shiv Poojan Thakur R/o 20 Feeta
Road, Lal Mandir, Harsh Vihar, Delhi
6. Dharam Singh @ Chiman S/o Ram Swaroop R/o H. No. 845, Gali No. 11,
Meet Nagar, Nand Nagari, Delhi
7. Yashpal @ Sunny S/o Nannu R/o A1, Jhuggi No. 30, Nand Nagari, Delhi
8. Chhaila S/o Kanti R/o Sansi Mohalla, Sarghana, Distt. Meerut U.P.
Case arising out of:
FIR no. : 41/06
Police Station : Timarpur
Under Section : 395/397/412 IPC
Date of Institution : 02/05/2006
Date on which order was reserved : 03/03/2015
Date of Decision : 04/03/2015
J U D G M E N T:
1. This is a case U/s 395/397/412/34 IPC.
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2. The case of the prosecution is that on the night of 27/01/2006 accused persons armed with pistol, knives and fawda entered the house of complainant where complainant along with his wife, mother and Avinash nephew of his friend were present. Accused entered the house and committed dacoity of their articles including cash, gold articles, camera, DTH system, Nokia phone, purse, driving license, etc. Accused persons also threatened the complainant and his family and fled from the spot. Complainant telephoned on 100. Police arrived at the spot. Complainant had given description of 06 accused boys as one being 3435 years 5'9" inches round face, 2nd being 25 years, 5'3" inches medium built, shallow complexion, having knife in his hand, 3rd being 3035 years, 5'6" inches, strong built wearing monkey cap and having knife in his hand, 4th having fawda in his hand, 2830 years, 5'4" inches, sanvla complexion, medium buit and was wearing while colour muffler, 5th being 25 years, 5'6" inches, medium built, shallow complexion, 6 th boy also about 5'6"
inches, about 25 years, medium built and of shallow complexion. Complainant as per supplementary statement disclosed one accused was present at the door. Police arrived on the spot and statement of complainant was recorded. Crime team was called, statement of witness was recorded. Accused could not be found. Therefore, some of the accused persons were arrested in FIR no. 112/06 Punjabi Bagh where they made disclosure statements about their involvement in the present case and also got recovered some robbed articles of this case. Information of the same was received. All accused persons were arrested and all refused their TIP. Disclosure statements were recorded, case property was transferred to the IO. Further case property was recovered at the instance of one accused. Complainant identified accused Chhaila when he had gone to the Court of Ld. MM/ Delhi. After completion of investigation, charge sheet was filed.
3. Prosecution has examined 29 witnesses.
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4. PW1 on receiving information about dacoity had reached the spot where he found complainant and his family members. Complainant had disclosed that 56 persons at about 01:30 a.m. knocked the door and they thinking the same to be chowkidar opened the same but accused armed with katta, knives and fawda entered their house and robbed them. Chowki Incharge had also arrived. IO recorded statement, rukka was handed over to Const. Rajinder who returned back with the copy of FIR. His statement was recorded. On 24/03/2006 he had again joined investigation and had gone in search of accused Chhaila but Chhaila could not be found.
5. PW2 is the complainant who stated that on the intervening night of 2627/01/2006 at about 01:30 a.m. while he was working on his computer, somebody knocked his door. He questioned the identity and the said person who answered that he was Chowkidar. He opened the door and found 56 persons were standing on the door armed with katta, knives and fawda. They forcibly entered the house, tied their hands and feet of all the members present in the house. He also noticed 7th member of dacoits keeping a watch on the door. The accused persons looted their house and he had given the list of looted articles to the Police. He had called Police and PCR with local Police reached their house. Statement was recorded. He had gone for preparing of sketch of the dacoits. Through Police Post and through newspaper came to know that most of the persons involved in dacoity had been apprehended. He had gone for TIP of the accused but was told that all accused had refused to participate in TIP. He had seen the 7th accused in Police custody. He stated that all the accused persons present in the Court except Suresh Yadav who was wearing spectacles in the court had entered in his room situated inside the school on the day of incident in question. Two more persons who were not present in the Court had also entered his room. He identified his mobile phone Ex. P1, Sony Handicam Ex. P2, one digital camera of SC no.:73/14 Page 3/23 Techcom Ex. P3, 03 cameras of Canon Ex. P4 to Ex. P6, one blue colour denim jacket Ex. P7.
6. PW3 wife of complainant also supported the prosecution's case and identified all the accused as the persons who had robbed their articles on pointing out of katta on the day of incident in question.
7. PW4 on request of IO on 27/01/2006 had visited the spot where IO along with other police staff were also present. He had taken photographs of the room Ex. PW4/1 to Ex. PW4/6 and negatives were Ex. PW4/7 to Ex. PW4/12.
8. PW5 was posted at Mobile Crime Team, North District. He had seen the report of crime team dated 27/01/2006 prepared by ASI Pradeep Verma. On 27/01/2006 he was posted at dog squad at North District. On that day he was summoned by SHO PS Timar Pur to reach at a school at Burari. He along with dog squad reached the said school. He tried to make dog to smell but the dog could not smell anything incriminating.
9. PW6 on 08/02/2006 received secret information that 56 persons had gathered at Punjabi Bagh and planned to commit dacoity. A raiding party was organized. They reached under the flyover near TPT Center, Punjabi Bagh where 56 persons were found. SI Ishwar Singh went near the place to hear conversation and thereafter, made signal. They raided Punjabi Bagh and apprehended 56 persons. Accused Suresh fired towards Const. Ramesh but fortunately did not hit him. Accused were arrested and made their disclosure statements about involvement in the present case. Accused Rakesh had got recovered one mobile phone Nokia from his house.
10. PW7 had joined investigation of the case FIR no. 112/06 PS Punjabi Bagh along with IO and raiding team. On 08/02/2006 at 11:30 a.m. had apprehended accused SC no.:73/14 Page 4/23 Akashdeep, Shailender, Rakesh, Yashpal, Dharam Singh and Sureh who were planning dacoity and arms were recovered from them. Accused persons made disclosure statements. Accused Yashpal was apprehended by him and he had signed on Ex. PW7/A. Other accused were apprehended by other Police officials. Accused Yashpal lead to Jhuggi situated at Nand Nagari and one Canon camera lying under the cot of jhuggi has been recovered. He identified the camera Ex. P4 recovered from accused Yashpal.
11. PW8 was on petrolling duty in the area of Punjabi Bagh and reached at underpass towards Rani Bagh and saw Police personnels of PS Pujabi Bagh. SI Surender Singh handed one accused Akashdeep to him. There 05 accused persons were apprehended by SI Surender Singh besides accused Akashdeep who was interrogated in his presence.
12. PW9 had also joined investigation of FIR no. 112/06. He has signed on disclosure statement Ex. PW9/A of Shailender who got recovered digital camera from his house which was taken into possession.
13. PW10 stated that on 08/02/2006 he had joined investigation and apprehended the accused persons. He has signed on disclosure statement Ex. PW10/A of Dharam Singh. No recovery of this case was effected at the instance of accused Dharam Singh in his presence.
14. PW11 received rukka at 04:25 a.m. and had recorded FIR. Copy of FIR being Ex. PW11/A. He had handed over original rukka to Const. Rajbir.
15. PW12 produced register no. 19 as per which at serial no. 4040 and 4054 case property had been deposited and had been released on superdari. Copy being Ex. PW12/A & Ex. PW12/B.
16. PW13 stated that on 04/03/2006 he had joined investigation. On that day SC no.:73/14 Page 5/23 accused Shailender @ Pehlwan was produced before the Court of Ld. MM/Delhi and was arrested who made disclosure statement Ex. PW13/B.
17. PW14 on 04/03/2006 had joined investigation with IO and other official and produced accused Suresh Kumar S/o Shyam Singh and Suresh S/o Sadashiv before the court of Ld. MM/Delhi and were arrested. Both accused made disclosure statements. On 10/03/2006 he had again gone to Tis Hazari Court where accused Dharam Singh @ Chaman was taken on PC remand. Accused led to the spot and pointed out the house where he along with coaccused entered the house and looted the valuable on the point of weapon. The pointing out memo being Ex. PW14/E. On 11/03/2006 accused Suresh led to various places for recovery but nothing was recovered and could not point out any jeweler from whom recovery could be effected. IO again interrogated the accused who told that the jewellery articles were melted and were given to coaccused Akashdeep.
18. PW15 deposited 06 pulandas duly sealed with seal of SS with MHC (M) Timar Pur. On 10/03/2006 accused Suresh Kumar S/o Shyam Singh led to the spot and pointed out the house where he along with coaccused looted the valuables on point of knife and katta.
19. PW16 on 10/03/2006 had joined investigation and gone to Tis Hazari Court where police remand of accused Yashpal @ Sunny was sought and accused led them to spot. Accused Dharam Singh made disclosure statement Ex. PW16/A.
20. PW17 was MHC (M) PS Timar Pur and produced the record relating to 06 sealed pulanda from PS Punjabi Bagh. The relevant entry being at serial no. 4040 in register no. 19. On 11/03/2006 one sealed pulanda was also deposited in malkhana PS Timarpur. The relevant entry being 4054 in register no. 19 Ex. PW17/A. On 20/03/2006 the said 06 sealed pulandas dated 06/06/2006 had been sent to the court for TIP and in the evening with seal of SC no.:73/14 Page 6/23 court were received back in malkhana. On 27/03/2006 all the case property were released on superdari.
21. PW18 had conducted TIP proceedings and witness Ajeet was produced. Accused Suresh Kumar S/o Shyam Lal, Shailender @ Pappu, Rakesh, Suresh Kumar Yadav, Akashdeep @ Babli, Dharam Singh, Yashpal @ Sunny had refused to join TIP proceedings. The proceedings being Ex. PW18/F to Ex. PW18/J.
22. PW19 conducted the TIP proceedings of (07 articles) case property and witness Ajeet Kumar correctly identified his belongings.
23. PW20 on 27/01/2006 was Incharge of Police Post Burari and on information had gone to the spot and called crime team and dog squad. Rukka was prepared and handed over to Const. Rajender for registration of FIR. Crime team reached the spot where photographs were taken. On 09/02/2006 he received information about arrest of some persons in FIR no. 112/06 PS Punjabi Bagh wherein they had disclosed about their involvement in the present case and some of the robbed articles were also reported to be recovered from those persons.
24. PW21 stated that on 08/02/2006 he was posted as MHC (M) PS Punjabi Bagh and had received 11 sealed pulandas. 06 pulandas were sealed with seal of IS and 05 were sealed with seal of SS. On next day i.e. 09/02/2006 SI Surender had handed over one pulanda with seal of SS for depositing in malkhana. On 06/03/2006 06 pulandas of this case were transferred to malkhana PS Timar Pur. The copy of original entries being Ex. PW21/A & Ex. PW21/B.
25. PW22 was posted as duty officer at PS Punjabi Bagh. On 08/02/2006 at 03:10 p.m. on receiving rukka and had recorded FIR. Copy being Ex. PW22/A. He had handed SC no.:73/14 Page 7/23 over the copy of FIR and original rukka to Const. Harjeet.
26. PW23 on 23/07/2006 had joined investigation and accused Chhaila led Police party to the spot R.K. Public School, Kamalpur near pump house and identified place of occurrence. IO prepared pointing out memo.
27. PW24 on 30/06/2006 received information that accused Chhaila was to surrender before court of Ld. MM/Delhi as such he reached court and with the permission of the court arrested accused Chhaila. Accused made disclosure statement Ex. PW24/B but refused to sign the same. Efforts to recover DTH box were made but the same could not be recovered. Accused refused to participate in TIP proceedings.
28. PW25 had formally arrested accused Suresh Kumar S/o Shyam Singh, Rakesh Kumar, Shailender, Suresh S/o Sada Shiv, Akashdeep & Dharam. He had moved application for judicial TIP. On 06/03/2006 he had got case property of the present case transferred from PS Punjabi Bagh and recorded statement of HC Vikram Singh. On 07/03/2006 he had formally arrested accused Yashpal and requested for his judicial TIP. On 09/03/2006 he along with complainant had gone to Tihar Jail for TIP of accused but all the accused refused their TIP proceedings. On 10/03/2006 accused had identified the place of occurrence. He had prepared the pointing out memo. On 11/03/2006 in pursuance to disclosure statement Ex. PW25/X accused Dharam Singh led Police party to his residence H. No. 845, Gali No. 11, ABlock, Meet Nagar, Nand Nagari, Delhi and got recovered one jacket of blue color make denim. On 12/03/2006 he had got judicial TIP of recovery and obtained copy of the same. All accused except accused Chhaila had been arrested. Charge sheet for all accused except Chhaila was filed. He identified denim jeans jacket Ex. P7 recovered from the house of accused Dharam Singh.
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29. PW26 produced the record relating to case file FIR no. 112/06 PS Punjabi Bagh and exhibited the copy of FIR, documents relating to disclosure statement of Suresh Kumar, Yashpal, Sunny, Shailender, Akashdeep, Rakesh Kumar, Dharam Singh and Suresh Chand and recovery memo of Suresh Kumar with seizure memos.
30. PW27 was the IO of FIR no. 112/06 PS Punjabi Bagh and stated that he had investigated the matter. He had arrested accused persons Suresh Kumar, Yashpal, Shailender, Akashdeep, Rakesh, Suresh and Dharam Singh who had made disclosure statements and had prepared pointing out memo, seizure memo and recovery memo. On 09/02/2006 he had handed over the copy of the documents along with copy of FIR to IO, SI Arvind Sharma. Accused Suresh had led them to residential room situated at Rohini where one camera of black colour having DX and SM111 recovered. The same was seized and sealed. Pointing out memo Ex. PW7/B at the instance of Yashpal and got recovered one camera of Canon Zen Motorized. Accused Shailender led them to residential room situated at Harsh Vihar and got recovered one camera of silver colour. Accused Akashdeep had led them to his house at Harsh Vihar where one camera of make Sony Handicam Digital8 with remote was recovered. Accused Rakesh Kumar led to his house and got recovered one mobile phone Nokia. Accused Suresh led to his house and got recovered one Canon camera. All the recoveries articles were sealed with seal of SS and identified case property as Ex. P1, Ex. P4, Ex. P5 & Ex. P6.
31. PW28 stated that on 08/02/2006 accused Suresh Kumar, Shailender, Yashpal, Akashdeep, Rakesh and Dharam were apprehended in FIR no. 112/06 PS Punjabi Bagh. He apprehended accused Suresh who had made disclosure statement and has disclosed that he alongwith Rakesh, Shailender, Yashpal, Dharam Singh, Akashdeep and Chhaila had SC no.:73/14 Page 9/23 committed robbery at Kamal Vihar, R.K. Public School and disclosed about the camera robbed by him at his house. He led the Police to Sector 20, Janakpuri Camp, Rohini from where one camera Ex. P5 was recovered.
32. PW29 was finger print expert and had visited the spot on 27/01/2006 and prepared report Ex. PW29/A.
33. Thereafter, statement of accused under 313 Cr. PC were recorded.
34. Accused Suresh Kumar denied his involvement in the incident and stated that he was wrongly arrested. He had refused to participate in TIP as he was shown to the witness in Police Station itself. He was lifted by the Police from his house at Meet Nagar and thereafter, taken to Police Station Punjabi Bagh and falsely implicated in the case.
35. Accused Dharam Singh also stated that he was wrongly arrested in the case. He had refused to participate in TIP as he was shown to the witness in Police Station itself. He was lifted by the Police from his house, taken to PS Punjabi Bagh and arrested in this case.
36. Accused Yashpal also stated that he was wrongly arrested in the case. He had refused to participate in TIP as he was shown to the witness in Police Station itself. He was lifted by the Police from his house, taken to PS Punjabi Bagh and falsely implicated in this case.
37. Accused Chhaila also stated that he was wrongly arrested in the case. He had refused to participate in TIP as he was shown to the witness in Police Station itself. He was lifted by the Police from his house, taken to PS Punjabi Bagh and falsely implicated in this case.
38. Accused Suresh also stated that he was wrongly identified, nothing was recovered at his instance and has been falsely implicated in the case. SC no.:73/14 Page 10/23
39. Accused examined DW1 on their behalf who produced the case file of FIR no. 112/06 U/s 399/186/332/353/307/34 IPC & 25/27 Arms Act. As per which vide order dated 27/09/2012 Ld. ASJ03, North West Rohini, Delhi, had acquitted accused Suresh, Dharam Singh and Yashpal.
40. The allegations against the accused persons are that on the night of 27/01/2006 they in furtherance of their common intention armed with knives, pistol, and other deadly weapon committed dacoity of Rs. 30,000/, one gold ring, two gold chain, two camera, one DTH system, two gold bangles, some other jewellery, mobile phone Nokia, purse containing some documents, driving license, mobile, pager, two parker pen, one pair of shoes, one walkman, two ear phone, two key sets and clothes of complainant at R.K. Public School, Kamal Vihar, Kamal Pur, Burari and one Canon camera robbed in the incident was recovered from accused Suresh S/o Sadav Shiv. One Canon camera black colour was recovered from accused Yashpal. One digital camera of silver colour was recovered from Shailender. One Black colour camera was recovered from Suresh S/o Shyam Singh and at the time of commission of the offence, accused Rakesh was carrying knife, Suresh Kumar S/o Shyam Singh was carrying pistol and Yashpal was carrying knife.
41. PW2 is the complainant who stated that in the intervening night of 2627/01/2006 at about 01:30 a.m. when he was working on his computer, someone knocked the door. He asked the identity of the person who answered 'Chowkidar'. The moment he opened the door, 56 persons were found standing at the door. One was carrying katta, two were having knives and one was having fawda. They forcibly entered the house and tied hands and feet of all the persons present in the house. He had noticed 7th member of dacoits keeping watch on the door. Accused persons looted their house for 4045 minutes and after SC no.:73/14 Page 11/23 looting them and threatening them left. On casual inspection he noted cash of Rs. 20,000/, one Sony Handycam, one Tech Com Digital camera, 03 cameras of Canon, one Nokia mobile, one pager, one walkman, one gold ring, two gold chain, some other gold and silver ornaments, one denim jacket, one purse containing some cash, driving license, and other documents, one black bag containing documents and some documents of school, shoes, clothes and some other articles had been robbed by the accused persons. Accused had also taken receiver of their landline phone by cutting its wire but they were unaware that he could call from the phone without receiver. He untied his hands, called the Police. Police reached the house. His statement and statement of his wife and mother were recorded. He had signed on the statement Ex. PW2/A. Crime team had reached on the spot. Later he came to know from newspaper/Police Post that most of the accused had been arrested. He had gone to Tihar Jail for TIP but accused persons refused their TIP. At a later date he had gone to the Court of Ld. MM/THC/Delhi where he saw 7th person in Police custody. The said accused was the person who was keeping watch at the door. He had identified his articles before the Ld. MM which were released to him on superdari. He identified his signatures at point A on TIP proceedings Ex. PW2/C. He stated that all accused except Suresh Yadav had entered his room on the intervening night and besides the said persons two more persons who were not present in the court had also entered his room. He had gone to Tihar Jail for participation in TIP. He identified the recovered case property as Ex. P1 to Ex. P6 and the denim jacket Ex. P7.
In crossexamination he produced the receipt of the mobile phone Ex. PW2/DA. He admitted that Ex. PW2/DA was not bearing signatures of receiver or the signatures of dealer and no tax was mentioned on the same. He denied that the said receipt was fabricated. He stated that he did not remember the detail as to from which accused SC no.:73/14 Page 12/23 which articles were recovered. His first statement was recorded on 27/01/2006 in the school. He reiterated that there were 07 persons involved in the incident. 06 had entered the room. He admitted that in his first statement he had not mentioned that one person was standing outside the room as he was nervous at the said time. He was also confronted with the statement Ex. PW2/A where the fact that the accused persons had tied their hand and feet had not been recorded. He stated that he was capturing video recording from his Sony handicam on his computer at the time of incident. He was also confronted with the statement wherein the fact that the accused persons had threatened them by showing them arms uttering that if they did something wrong, they would kill them was not mentioned. He denied that they used to give forms filled up of CBSE and open school and as they had not submitted the forms in time, guardians of the students were protesting and in order to protect themselves from those guardians they have registered a false case against the accused persons. In July, 2006 he had come to meet his advocate friend and found 7 th accused Chhaila in the court of Ld. MM/Delhi. He stated that he was not aware as to on whose instance the site plan was prepared. He had handed over the list Ex. PW2/B after about one month from the incident in question. He stated that two articles i.e. Sony Handicam and Digital camera make Techcom Ex. P2 & Ex. P3 had again been robbed from him and he had filed complaint in respect of the same. The copy being Ex. P8 & Ex. P9. He admitted that no particulars of case were mentioned on Ex. P1, Ex. P4 to Ex. P7. He denied that none of the articles were robbed from him. He denied that no money was stolen. He denied that none of the jewellery articles had been stolen or that he had deposed falsely and the recovered articles were planted. Offenders had tied his hands and feets of all the persons with chunni and the piece of rope which was available in the house but he had not handed over chunni and piece of rope to the IO. He denied that he had got CBSE filled form of accused SC no.:73/14 Page 13/23 Akashdeep and received Rs. 10,000/ from him and when accused Akashdeep demanded money from him he falsely implicated him in the case. He admitted that he had not seen receiver of his telephone and volunteered it was found outside his house immediately after incident therefore, was not made case property. He denied that he had falsely implicated Akashdeep and other accused in the case. In crossexamination by accused Suresh Yadav he stated that he was owner of R.K. Public School and was also residing in the same. He was Graduate. He had given the complete list of stolen articles on 25/02/2006 but admitted that it was not bearing any date. He had consulted family members at the time of preparing Ex. PW2/B. All the 05 cameras involved in the case were gifted to him. He stated that cameras were open i.e. not sealed. But again said that it was sealed at the time of superdari but did not remember the seal. He admitted that there was no seal on the cameras when examination was done. He had seen 15 cameras out of which he had identified his camera on the basis of pattern of colour, repair marks, wear and tear. No recovery from accused Suresh Yadav was effected in his presence. He denied that he had prepared the list of stolen articles after the recovery at the instance of Police of PS Punjabi Bagh. He had got prepared sketches of Suresh and Rakesh but due to discrepancy in the system sketch of remaining persons had not been prepared. He stated that accused who was handing knife was not wearing any monkey cap. He volunteered that the name of the said person was Shailender. Confronted with statement wherein he stated that said accused was wearing monkey cap. The other person who was also carrying knife was Rakesh. He denied that he had falsely implicated the accused persons or that he had been shown accused persons in the Police Station. He denied that he had wrongly identified case property or that the same was not belonging to him.
42. PW3 is the wife of complainant who deposed on similar lines that while sleeping in the house, she heard noise and found 56 persons present in the house. They were SC no.:73/14 Page 14/23 carrying arms. They started ransacking their house and took out all goods from almirahs. They collected gold jewellery articles, Rs. 40,000/ cash, mobile phone, music system, purse and documents of the school. Accused had shown katta to her husband and stayed till 03:30 a.m. Her husband had called the Police. Crime team had visited the place. Witness correctly identified all the accused persons present in the court.
In crossexamination stated that her statement was recorded on the day of incident itself after that no statement was recorded. She was not having any proof of ownership of robbed articles. She denied that no such incident had taken place. She had not stated to the Police that their hands were tied by the accused as she was perplexed. She herself woke up and witnessed the incident. Her husband had told exactly which articles had been robbed. She stated that she had told that accused persons were carrying arms but perhaps had not stated about gun. All accused were carrying some arms but could not say which arm was carried by which accused. Witness correctly identified accused Suresh stating that he was carrying gun in his hand. They were forced to sit by the side so that accused could do whatever they wanted. In her presence Police had not recovered any 'rassa'. She was not aware of the documents of the school which were also robbed in the incident. She denied that she was sleeping therefore, she was not aware as to what had happened. She denied that her husband used to get forms filled of open school or that he had taken money from students and when guardians of children started harassing her husband a false case was lodged. She denied she was deposing falsely on behalf of her husband.
43. These are the only two eye witness of the incident in question. PW2 stated that there were 07 people, out of which 06 had entered the room, one was standing on the gate but he had not mentioned about the said 7th accused (Chhaila) in his first statement dated 27/01/2006. PW2 in his 4th supplementary statement dated 23/03/2006 had stated that he had SC no.:73/14 Page 15/23 noticed 7th accused who was on the gate keeping vigil. He had identified the said 7th accused when he had gone to meet his advocate friend at the court of Ms. Nirja Bhatia, Ld. MM/THC, Delhi but the said explanation of he being present by chance at the said court when the accused chhaila was being produced also does not inspire confidence as the witness has not only omitted to mention the name of his advocate friend but has also not disclosed the purpose for which he had come to the court on the said day. He specifically stated that he was not called by the IO but he had informed the Police about the same. In this respect, PW24 stated that accused Chhaila had filed application and surrendered before the Court. On 19/07/2006 accused Chhaila had refused to participate in TIP and on 22/07/2006 accused Chhaila was identified by the complainant and he had recorded the statement of complainant to the said effect. Complainant has admitted he had gone to Tihar Jail for TIP of accused. There is thus reasonable probability that complainant was either aware that the accused would be produced before the concerned court on the (22/07/2006) said day or he had been informed by the IO about the same. PW2 had also given 03 supplementary statements on 27/01/2006, 25/02/2006 & 11/03/2006 prior to the supplementary statement in question, but did not mention about 7th accused in any of those 03 statements and there is no explanation for omission of the same. Further in respect of the specific place where Chhaila was present at the spot in question. PW2 stated that he was standing outside his house while other 06 accused persons had entered the house and committed robbery. One was armed with katta, two with knives and one with fawda while PW3 stated that all the accused persons were armed with weapon (including accused Chhaila) were present at the time of incident and had robbed their house on gun point. There is thus, contradiction between the statement of PW2 & PW3 in regard to the role and the place of presence of accused Chhaila at the spot in question. These facts therefore, create doubt about presence of accused Chhaila SC no.:73/14 Page 16/23 at the spot on the date of incident in question. There is further no recovery of case property effected from accused Chhaila. As per prosecution's story Suresh Yadav was not part of the dacoites but had only received the looted property and the same was recovered at his instance from his residence.
44. In this respect PW2 stated that except accused Suresh Yadav all had entered his house at the time of offence in question and Chhaila was the person who was standing outside keeping watch but PW3 stated all accused including Suresh Yadav and Chhaila had entered their house and looted their articles. Thus, the identification by PW3 of all the accused, particularly, Suresh Yadav and Chhaila appears to be doubtful and would be contrary even as per the prosecution's version.
45. PW2 further improved his statement that after the accused entered their room, accused tied hands and feet of all persons present at the house i.e. he, his wife, his mother and Avinash and after they left, they untied their hands and had telephoned the Police. Accused persons before leaving had also cut the receiver of their phone and took the same with them. The receiver was found outside their house. Admittedly IO had not seized any rope or telephone receiver in question. Except PW2 none of the other witnesses have deposed that complainant or his family had been tied by the accused persons. PW3 wife of complainant omitted to mention this fact and there is also no explanation as to why this important fact, if it actually had taken place had not been disclosed either by PW2 in his statement Ex. PW2/A or in supplementary statements or by PW3 to the IO. Thus, these improvements by PW2 are substantial unexplained material improvements. As per complainant besides he, his wife, his mother and one Avinash were present at the spot at the said time but except PW3, no other eye witness i.e. complainant's mother and Avinash have been examined by the prosecution. In regard to accused being armed with weapon. PW2 SC no.:73/14 Page 17/23 stated one was armed with katta, 2 with knives and one with fawda but PW3 stated all accused i.e. 06 accused were armed with weapons. There is therefore, variations between PW2 & PW3 on this aspect of the number of accused being armed with weapons.
46. All the accused persons had refused their TIP on the ground that they have been shown to the complainant prior to TIP. PW2 had stated that he had come to know through newspaper and Police Post that most of the accused of the present case had been apprehended by Police of PS Punjabi Bagh. He also stated that he had gone to meet his advocate friend in the court premises when he had identified accused Chhaila. This shows that complainant had been closely following his case. PW25 stated that all accused persons except accused Yashpal had been produced before the court on 04/03/2006 and accused Yashpal was produced on 07/03/2006, on production warrants as they had been arrested in case registered at PS Punjabi Bagh. Thereafter, TIP was conducted. The TIP proceedings being Ex. PW18/C, Ex. PW18/D, Ex. PW18/E, Ex. PW18/F, Ex. PW18/G, Ex. PW18/H & Ex. PW18/I. Though no evidence has been led to show that accused had been shown to the witness prior to their TIP but in view of the above stated facts there could be reasonable probability of complainant having seen the accused prior to their TIPs.
47. In the present case besides the two eye witnesses of the incident, the other material evidence linking the accused to the present case is the recovery of the case property from them.
48. As per prosecution's story after FIR, accused persons could not be found but later were apprehended in FIR no. 112/06 PS Punjabi Bagh wherein 06 accused persons, namely, Suresh, Yashpal, Shailender, Rakesh, Askashdeep, Dharam Singh were apprehended and had disclosed about their involvement in the present case. Disclosure SC no.:73/14 Page 18/23 statement of accused Suresh being mark P6/A. Accused Rakesh (PO) had got recovered one mobile Nokia Ex. P6.
50. PW7 stated that on 08/02/2006 at about 11:30 a.m. on the basis of secret information, the above said 06 accused persons were apprehended and FIR 112/06 was lodged. All the accused persons made disclosure statements. Accused Yashpal had disclosed about his involvement in the present case as per Ex. PW7/A and had led the Police party to his jhuggi situated at Nand Nagari from where Canon camera Ex. P4 was recovered and seized vide memo Ex. PW7/B. Other accused also had got recovered the robbed articles of the case but he was signatory to only recovery of Yashpal.
In crossexamination stated that jhuggi of Yashpal was at a distance of 20 km. from the spot and the said road was busy. There were many jhuggies near the jhuggi of Yashpal. No family member of accused Yashpal met them in the jhuggi. He denied that no recovery was effected at the instance of accused Yashpal. The seizure memo Ex. PW7/B relating to recovery of camera from Yashpal is signed by HC Harender PW7 and IO of the FIR 112/06 PS Punjabi Bagh. No independent witness was associated in recovery of the same.
49. PW8 stated that accused Akashdeep had made disclosure statement Ex. PW9/A in regard to involvement in the present case.
50. PW9 stated he along with other Police officials had apprehended the accused persons in FIR no. 112/06 and accused Shailender had made disclosure statement Ex. PW9/A and got recovered digital camera Ex. P3.
51. PW10 stated accused Dharam Singh had made disclosure statement Ex. PW10/A regarding involvement in the present case. However, no recovery was effected SC no.:73/14 Page 19/23 from the said accused.
52. PW14 stated that Suresh Kumar S/o Shyam Singh and Suresh S/o Sada Shiv had been arrested. On 10/03/2006 accused Dharam had led the Police party to the spot and on his pointing out, the pointing out memo Ex. PW14/E was prepared. On 11/03/2006 accused Suresh S/o Sada Shiv had led them to various places for recovery of jewellery but no jewellery could be effected from any jeweller. Accused had later told that he had melted the jewellery articles and had given to coaccused Akashdeep.
53. PW25 stated that on 11/03/2006 accused Dharam Singh made disclosure statement Ex. PW25/X and led the Police party to his house at Nand Nagari from where one blue colour jeans (denim) Ex. P7 was recovered. The same was seized and sealed vide Ex. PW25/G. In crossexamination admitted that the said Ex. P7 was not bearing any particulars like, FIR, case no., etc. He also denied that no recovery had been effected from the accused.
54. PW27 stated that accused Suresh Kumar had led them to his residential room at Rohini and produced one camera of Black colour Ex. P5 which was stated to be robbed from the house of complainant. The same was seized and sealed. Accused Yashpal had got recovered one Canon camera Ex. P4, accused Shailender got recovered one digital camera, accused Akashdeep got recovered one camera, one Sony handicam digital 8 camera. Accused Rakesh got recovered one Nokia mobile phone from his residential room at Nand Nagari. Accused Suresh S/o Sada Shiv got recovered one Canon camera Ex. P5 from his residential house Nand Nagari. Ex. P6 recovered at the instance of accused Suresh. Ex. P3 recovered at the instance of accused Shailender and Ex. P2 Sony handicam recovered at the instance of accused Akashdeep. In crossexamination stated that none of the case property produced by the superdar was having details of the case mentioned on the same. They had SC no.:73/14 Page 20/23 taken the case property in sealed pulanda. He admitted that the said pulandas in which respective articles were seized were not shown to him. He denied that no robbery had taken place at the house of complainant or that no recovery had been effected from the accused persons. He also stated he had not recorded statement of any public persons at the time of recoveries. He also denied that accused had been falsely implicated in the case.
55. PW28 stated he had arrested accused Suresh in FIR 112/06 PS Punjabi Bagh and in his presence the said accused along with other accused Rakesh, Shailender, Yashpal, Dharam Singh, Akashdeep, Chhaila had admitted that they committed robbery at Kamal Vihar R.K. Public School on pointing out of weapons. Accused Suresh Kumar had made disclosure statement Ex. PW26/B and got recovered camera Ex. P5. In crossexamination he denied that no recovery was effected from accused Suresh or that accused had not made any disclosure statement.
56. The photographs of the spot in question along with its negatives are Ex. PW4/1 to Ex. PW4/12 and the case property i.e. recovered cameras are Ex. P3 to Ex. P5. The jacket being Ex. P7. Mobile phone being Ex. P6. As per the recovery witnesses, the accused persons were arrested in FIR no. 112/06 PS Punjabi Bagh for planning to commit dacoity and therein had made disclosure about involvement in the present case and accused had led to recovery of mobile phone, cameras and jacket of the present case. The said recovered articles were seized thereafter, handed over to IO of the present case. PW21 stated that on 08/02/2006, 05 sealed pulanda with seal of SS and on 09/02/2006 one sealed pulanda with seal of SS were issued and on 06/03/2006, 06 sealed pulandas with the seal of SS were transferred to PS Timar Pur through Const. Vikram. PW15 Vikram also corroborated the facts that he had taken 06 sealed pulandas vide RC for deposit with the PS Timar Pur. One jacket was recovered on the instance of accused Dharam thereby there were 07 recovered SC no.:73/14 Page 21/23 articles in the present case. As per PW19, IO had produced 07 sealed pulandas with the seal of SS and one with the seal of DSY.
57. TIP of the recovered articles were conducted and complainant had correctly identified his articles as per Ex. PW19/B and proved by PW19. The recovery memo Ex. PW26/E is relating to Suresh Kumar whereby one Canon camera was recovered. The same is signed by Const. Ramesh and IO of the FIR no. 112/06. The recovery memo Ex. PW7/B is relates to recovery of one Canon camera Black colour from accused Yashpal and is signed by HC Harender and IO of FIR 112/06. Ex. PW9/B relates to recovery of one digital camera of Silver colour from Shailender and is signed by HsC Labh Singh and IO of FIR 112/06. Ex. PW26/F relates to recovery of one camera Sony Handicam Digital8 with remote from Akashdeep and is signed by HC Harender and IO. Ex. PW26/B relates to recovery of one Nokia mobile from Rakesh Kumar S/o Jeet Singh and is signed by Const. Jeet Singh and IO. Ex. PW26/H relates to recovery of one Canon camera from Suresh S/o Sada Shiv stated to have been purchased by him from Dharam Singh and is signed by Const. Narain and IO. Vide Ex. PW25/G recovery of one jacket make Blue colour jeans/ denim from accused Dharam Singh is signed by Const. Manoj and Darshan Singh SI PS Timar Pur.
58. But in none of the recoveries any independent witness was associated. It was not explained as to why despite having time and opportunity no public witnesses were associated in recovery of the said articles. One of the most important fact in regard to recovery is that dacoity was committed on 27/01/2006, complainant submitted first list for robbed articles on the same day wherein one digital camera, one Sony handicam etc. were found to be missing and second list was submitted on 25/02/2006 as per which, 03 Canon cameras were reported to be missing/robbed in the dacoity. But articles in question Ex. P1 to P6 had already been shown to be recovered on 08/02/2006 i.e. much prior to the date of SC no.:73/14 Page 22/23 25/02/2006 when the second list disclosing the said cameras were submitted by PW2. Thus, in view of the facts and circumstances of the case, the possibility that the said list of robbed articles Ex. PW2/B were not prepared confirming with the recovery effected on 08/02/2006 cannot be ruled out.
59. There is also no recovery of the weapon used in the offence except for one katta but the same has also been not produced in the case though was stated to be recovered as case property in FIR no. 112/06 of PS Punjabi Bagh.
60. DW1 produced the case file relating to FIR no. 112/06 PS Punjabi Bagh U/s 399/402/186/332/352/307/34 IPC r/w 25 & 27 Arms Act. In the said case accused Suresh S/o Shyam Singh, Dharam Singh S/o Ram Swaroop, Yashpal @ Sunny were acquitted by the Court of Sh. Yashwant Kumar, Ld. ASJ03, North West Rohini, Delhi vide order dated 27/09/2012.
61. In view of the above said discussion, the prosecution's case against the accused has not been proved beyond reasonable doubt.
62. Accordingly, accused persons are acquitted for the offences u/s 395/397/412/34 IPC. Bail bonds of the accused persons shall however, remain in force for a further period of 06 months in terms of section 437(A) Cr. PC. File be consigned to Record Room.
Announced in the open court (DINESH BHATT)
on 04/03/2015 ASJ/Delhi/04/03/2015
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