Delhi District Court
S.C. No. 26/12 : Fir No. 188/12 State vs . Vicky @ Rajkumar Etc. 1/56 on 18 December, 2014
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
SC No. : 26/12
(Unique ID No. 02406R0227512012)
FIR No. 188/12
PS: Hauz Khas
U/S: 395/397/34/412 IPC
and 25/27 Arms Act
State
Vs
(1) Vicky @ Raj Kumar @ Mukesh @ Vaqil
S/o Kamleshwari Yadav,
R/o Village-Bhalwa, PS-Katoria,
Distt. Banka (Bihar)
(2) Mohd. Sabir @ Sonu
S/o Mohd. Rahisuddin
R/o A-176, J.J. Camp, Tigri,
New Delhi.
(3) Vijay Shukla
S/o Siya Ram Shukla,
R/o Village- Raniyapur,
PS-Bishesar Ganj, Distt. Bahraich
(U.P.)
(4) Chandan Kumar
S/o Sukh Dev Mahto
R/o Village- Matihari,
Distt. Begu Sarai (Bihar)
S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 1/56
(5) Raju Singh @ Sunny
S/o Vijay Singh,
R/o 874, Vinay Nagar,
Village-Avaanpur, PS-Palla,
Distt. Faridabad (Haryana)
Date of Institution : 11.09.2012
Date of Institution in Session Court : 29.09.2012
Date of Pronouncement Order : 18.12.2014
JUDGMENT
1. The case of the prosecution as per the charge-sheet, is that on receipt of an information on 17.07.2012, Police reached at House No. D-30, Gulmohar Park, New Delhi and met complainant Mrs. Ritu Singhal there, who got her complaint recorded that on 17.07.2012, she was in her room with her son. At about 8:30 p.m, somebody rang the door bell and her servant Chandan, who was in the kitchen, opened the door and three young persons entered the house and put a knife on her servant. They entered her room and also put a knife on her neck and closed her mouth with hand. A gun was also put on her son Mehul. She was warned not to raise alarm, lest her son would be killed. They ransacked the entire house and took away Rs. 20,000/- cash, her jewellery, two mobile S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 2/56 phones (Samsung and Nokia), one Cannon Camera, one Sony Camcorder and Sony Laptop etc. She stated that she would later on give the complete details about the articles taken away by them. She stated that all three of them were slim and were in the age group of 20-25 years and one of them was of dark complexion. Before leaving, they tied their hands and feet with plastic and cloth ropes. She stated that she could identify them.
2. On this complaint, FIR No. 188/12 was registered under Section 397/34 IPC. Servant Chandan was interrogated by the Police and he confessed his role in the offence, and told that Vijay Shukla had got him employed as a servant in the house of the complainant, on the condition that Chandan will give him information about the jewellery and cash and absence of the employer, and he gave information by telephone to Vijay Shukla regarding these. Thereafter, the other accused persons were arrested, and recoveries were effected from them.
3. Section 412 IPC and 25 of the Arms Act were also invoked. On completion of the investigation, charge-sheet was S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 3/56 filed. Since the offence under Section 397 IPC is exclusively triable by the court of Sessions, this matter was committed to this court.
4. On 19.02.2013, charge under Section 395/34 IPC was framed against all the accused persons. Charge under Section 412 IPC was framed against accused Vicky, Mohd. Sabir and Raju Singh. Separate charge under Section 397 IPC and 25/27 of the Arms Act was also framed against the accused Mohd. Sabir. All the accused persons pleaded 'not guilty' and claimed trial.
5. In order to prove its case, prosecution examined 11 witnesses.
5.1 PW-1 Mrs. Ritu Singhal is the complainant. She deposed on the lines of her complaint, which she proved as Ex. PW1/A. She proved the seizure memo of the ropes as well as cloth pieces as Ex. PW1/B. She further stated that next day, she came to know that the assailants had been apprehended and some recoveries had been made from them. She was called subsequently S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 4/56 in Saket Court for identification of the valuables which she identified and took them on superdari vide superdiginama Ex. PW1/C. The articles were released to her vide Panchnama Ex.PW1/D. She identified accused Vijay Shukla to be a servant in her neighborhood, who had suggested her to engage Chandan as servant and told her that he was a good boy. She also identified Chandan by name in the court, to be her servant. She identified the other three accused persons to be those, who had entered her house on 17.07.2012. She further stated that she had also gone to Tihar Jail for identification of the three accused persons, who had entered her house but she felt scared and intimidated in the atmosphere and hence could identify anyone of them. She stated that in the court, she was not feeling scared and she identified all the three accused persons in court. She also identified the nylon rope and cloth strips in court which were exhibited as Ex. PW1/P1 to P4 (nylon ropes) and Ex. PW1/P5 to Ex. PW1/12 (cloth strips). She also identified a saw and a kitchen knife to have been used during crime and they were exhibited as Ex. PW1/P13 (saw), and Ex. PW1/P14 (kitchen knife). She also identified a Dessi Katta Ex. PW1/P15 to be the S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 5/56 same which was put on the head of her 11 ½ years old son Mehul. She also produced two ladies wrist watches - Tissot and Espirit (Ex.PW1/P18 collectively); Cannon digital camera (Ex.PW1/P19) ; Samsung Galaxy S-2 mobile phone (Ex.PW1/P20); Apple I-pod (Ex.PW1/P21); one artificial golden colour Kara (Ex.PW1/P22); one artificial Jhummer (Ex.PW1/P23); one artificial silver Kara (Ex.PW1/P24); one pair ear studs (Ex.PW1/P25); one hair clip (Ex.PW1/P26); 96 Indian and Foreign coins (Ex.PW1/P27 colly.) ; one pair gold bangles (Ex. PW 1/P-28); one gold chain (Ex. PW 1/P-29); one pair silver cuff links (Ex. PW 1/P-30); hair clutcher (Ex. PW 1/P-31); one chain (Ex. PW 1/P-32); cash Rs. 14,200/- (Ex. PW 1/P-33); ladies wrist watch Titan (Ex. PW 1/P-34); Sony handycam (Ex. PW 1/P-35); Seagate external hard disk (Ex. PW 1/P-36); Sony PSP (Ex. PW 1/P-37); mobile phone make FIVE (Ex. PW 1/P-38); Map My India device (Ex. PW 1/P-39); Nokia mobile phone (Ex. PW 1/P-40); four artificial Karas (Ex. PW 1/P-41); two gents wallets (Ex. PW 1/P-42); four ladies rings (Ex. PW 1/P-43); Sony Vaio notepad (Ex. PW 1/P-44). In her cross- examination for accused Chandan, she stated that Vijay Shukla S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 6/56 had brought Chandan to her house about two months prior to the incident and no Police verification was got done by her before employing Chandan. She stated that Chandan used to have a mobile phone and the mobile phone Ex. PW1/P38 was perhaps used by Chandan. She could not tell the mobile number of that phone nor could she tell, if the said phone had Airtel sim card. She admitted that Chandan never remained alone in the house in their absence. She admitted that Chandan had not pointed out to the assailants the place where the articles were kept. She also stated that she never doubted the intention of Chandan when he lived in their house as servant. In her cross-examination for accused Raju Singh, she could not tell as to who intimated the Police about the incident. She stated that Police remained in her house till about 4:00 a.m of 18.07.2012 and her statement Ex. PW1/A was written in their house. She denied the suggestion that she was not perplexed at the time of judicial TIP. She also denied the suggestion that she identified the accused persons in court at the instance of the Police. In her cross-examination for accused Vijay Shukla, she stated that Vijay Shukla only recommended S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 7/56 Chandan and she had to decide to engage or not to engage Chandan. She stated that Vijay Shukla was working with her neighbour Sh. R.D. Joshi, who was perhaps residing in House No. B-90. In her cross-examination for accused Mohd. Sabir, she could not tell as to which accused carried which weapon. In her cross-examination for accused Vicky @ Rajkumar, she stated that she does not remember, if she had stated to the Police that third assailant was holding a big saw like weapon in his hand. A suggestion was put to her that she did not state so to the Police as no such incident had taken place, but she denied the suggestion. She stated that there were various articles laid on the table of the Ld. Judge and she identified the articles belonging to her. She denied the suggestion that only the case property was brought by the IO and they were not mixed up with other articles. She also denied the suggestion that she had given her own articles to the IO to falsely implicate accused Vicky @ Rajkumar. She stated that she did not tell to the Presiding Officer in Tihar Jail that due to fear, she could not identify the accused nor she told the reason of non- identification of the accused to the IO. She denied the suggestion S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 8/56 that she did not identify the accused in TIP as he was not involved in the offence; and that she identified the accused in the court at the instance of the IO .
5.2 PW-2 HC Sushil Sharma is the Duty Officer, who recorded a call on 17.07.2012 at 10:15 p.m, which he received through S-50 that some persons had come with knife at D-31, Gulmohar Park, near Yusuf Sarai and were quarrelling there. He recorded this message vide DD No. 39A and proved the same as Ex. PW2/A. He stated that he handed over the message to Ct. Ram Rattan for giving it to SI Nihal Chand for investigation. 5.3 PW-3 ASI Kashmiri Lal is the Duty Officer, who proved recording of FIR No. 188/12 under Section 397/34 IPC on 18.07.2012 at 12:05 a.m on the Rukka received by him from Ct. Ram Rattan which was sent by SI Nihal Chand. He proved the FIR as Ex. PW3/A and his endorsement on the Rukka as Ex. PW3/B. 5.4 PW-4 HC Ishwar Chand is witness of arrest and recoveries. He stated that on 18.07.2012, he joined investigation of S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 9/56 the present case with SI Nihal Chand. They, alongwith SI Sanjay had brought servant Chandan in the Police Station. IO interrogated Chandan Singh, and during interrogation, he confessed to have committed this offence alongwith Raj Kumar @ Vaqil, Raju Singh @ Sanny, Sabir and Vijay Shukla. SI Nihal Chand recorded the disclosure statement of accused-Chandan, which he proved as EX.PW4/A. His arrest memo was proved as EX.PW4/B and his personal search memo was proved as EX.PW4/C. Thereafter, at the instance of accused Chandan, co-accused Vijay Shukla was arrested from U-13, Main Green Park, New Delhi, vide arrest memo EX.PW4/D, and his personal search memo was proved as EX.PW4/E. IO also recorded disclosure statement of accused Vijay Shukla, which was proved as EX.PW4/G. IO also prepared pointing out memo of the house of accused Mohd. Sabir at the instance of accused Vijay Shukla, which was proved as EX.PW4/F. Accused Chandan Singh pointed out the House No. B-120, Shakti Vihar, Meethapur, New Delhi of accused Raju Singh and Vicky @ Raj Kumar and the said pointing out memo was proved as Ex. PW4/BB. Thereafter, at the instance of accused-Chandan, other co- S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 10/56 accused persons - Vicky @ Raj Kumar @ Vaqil and Raju @ Sunny were arrested from B-120, Shakti Vihar, Meethapur, New Delhi vide arrest memos EX.PW4/H and EX.PW4/I respectively. Their personal search memos were proved as EX.PW4/J and EX.PW4/K respectively. The IO also recorded their disclosure statements EX.PW4/L and EX.PW4/M respectively. Accused Vicky @ Raj Kumar @ Vaqil got recovered 15 different articles i.e. mobile phones, chain, camera, gold items, etc, from the room of H. No. B-120, Shakti Vihar, Meethapur, New Delhi, which were seized after being converted into pullanda and sealed with the seal of 'NC', vide seizure memo of recovery-cum-pointing out memo EX.PW4/N. Similarly, accused Raju Singh got recovered total 11 articles i.e. mobile phone, wrist watches, gold items, etc., and cash of Rs.14,200/- from the same room of H. No. B-120, Shakti Vihar, Meethapur, New Delhi, which were seized by the IO after being converted into pullanda and sealed with the seal of 'NC', vide seizure memo of recovery-cum-pointing out memo EX.PW4/O. IO also prepared site-plan of the place of recovery, which was proved as EX.PW4/P. Accused persons also got arrested another co- S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 11/56 accused Mohd. Sabir, from A-176, Har Govind Enclave, Chhattarpur, New Delhi, where, accused Mohd. Sabir was living on rent. IO interrogated him and recorded his disclosure statement which was proved as EX.PW4/Q. He was arrested vide arrest memo EX.PW4/R and his personal search memo was proved as EX.PW4/S. Accused Mohd. Sabir got recovered total 06 robbed articles i.e. one iron rod (saria), one iron blade (aari), notepad, vegetable knife, screwdriver, etc which were seized by the IO vide seizure memo Ex. PW4/T after being converted into pullanda and were sealed with the seal of 'NC'. Accused Mohd. Sabir also got recovered one country-made katta alongwith two live cartridges from his rented room. He proved sketches of the said recovered katta and live cartridges as EX.PW4/U. They were seized vide seizure memo Ex. PW4/V after being converted into pullanda and sealed with the seal of 'NC'. He proved sketch of recovered iron blade (aari) and site-plan of place of recovery as EX.PW4/W and Ex. PW4/X respectively. All these three accused persons also pointed out the place of occurrence i.e D-30, Gulmohar Park and their separate pointing out memos were proved as Ex. PW4/Y, Ex. S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 12/56 PW4/Z and Ex.PW4/AA respectively. He identified all the accused persons in the court. In his cross-examination for accused Vicky @ Raj Kumar, he stated that on 18.07.2012, they left the police station at about 7.00 AM. Chandan was interrogated at about 4.30 to 5.00 AM, at the PS on 18.07.2012, by SI Nihal Chand. From the police station, they went to Green Park, where, they reached at 10.00 AM, in a Govt. vehicle. Vijay Shukla was taken from G-13 or G-14, Green Park. They stayed with Vijay Shukla for about 10-20 minutes. They reached Shakti Vihar, Meethapur, at about 11:00-11:15 AM. Vicky was arrested from B-120, Shakti Vihar. No family member of Vicky, was present in his house, but other public persons were present. No public persons agreed to join the investigation. No notice was given by the IO. He stated that B-120 was a big double-storeyed house of about 200-250 Sq. Yards. Accused Vicky was found on the first floor. No public person agreed to join the recovery proceedings. IO had made inquiries from the accused, on the first floor itself, in open area, which was not covered. They stayed at the place of recovery for about 30 minutes, and thereafter, they went to Har Govind Enclave through S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 13/56 Tigri. They came back at the police station at about 1.30 PM. In his cross-examination for accused Raju Singh, he stated that no photographs of the place of recovery, were got clicked by the IO, before effecting the recovery. He admitted that the complainant did not give any proof of ownership of the recovered articles, to the IO, in his presence. In his cross-examination for accused Chandan, he stated that Chandan was arrested at about 6:15 a.m from the place of occurrence, where, he was working as servant. In his cross-examination for accused Mohd. Sabir, he stated that accused Mohd. Sabir was arrested on 18.07.2012 at about 12.30-12.45 PM. They reached Har Govind Enclave at about 11.45
- 12.00 Noon. They remained there for about half an hour. Two- three local residents also accompanied them in the house. Accused Mohd. Sabir was identified by Chandan and others, as Mohd. Sabir. Mobile phone, knife, katta, saria, saw, two cartridges were recovered from that house. The saw was recovered from outside his room, while katta, knife, saria, mobile phone, cartridges were recovered from a bag below his bed. They left the spot at about 1.15 PM. The disclosure statement of accused Mohd. Sabir was S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 14/56 written at the first floor, at the place of arrest, by the IO. 5.5 PW-5 Ct. Ram Rattan stated that on 17.07.2012 at about 10:15 p.m, SI Nihal Chand received DD No. 39A and they both reached at second floor of D-30, Gulmohar Park, New Delhi. One lady Ritu met them. IO recorded her statement and prepared Rukka which was handed over by the IO to him at about 11:45 p.m for registration of the FIR. He came back at the spot at about 12:30/12:45 a.m (18.07.2012) and handed over the copy of the FIR and original Rukka to the IO. At that time, Crime Team had already reached there. From the spot, servant Chandan was brought to the Police Station. He identified accused Chandan in the court.
5.6 PW-6 Dr. Kuldeep Singh proved the Age Estimation Report of accused Chandan and Vijay Shukla as Ex. PW6/A and Ex. PW6/B respectively, according to which, Chandan was between 19-20 years and Vijay Shukla was between 18-19 years. S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 15/56 5.7 PW-7 Dr. Shabnam Bhandari Grover proved the X- ray of accused Chandan and Vijay Shukla for the purpose of their bone age determination. She proved the X-ray report of accused Chandan as Ex. PW7/A and report of accused Vijay Shukla as Ex. PW7/B, according to which, accused Chandan was found to be between 19-20 years of age and accused Vijay Shukla was found to be between 18-19 years of age.
5.8 PW-8 SI Sanjay Sharma deposed that on 18.07.2012, he joined investigation of present case with SI Nihal Chand, and at that time, IO/SI Nihal Chand was interrogating accused-Chandan in the PS itself, who was the servant at the house of the complainant. He identified the accused Chandan in the Court. Accused was interrogated and he confessed that he conspired alongwith his associates, namely Vijay Shukla, Vicky @ Vaqil @ Raj Kumar, Raju Singh, Mohd. Shabir and got committed the crime from them, in the house of the complainant. He also proved his disclosure statement, arrest memo and personal search memo as EX.PW4/A to Ex. PW4/C respectively. The accused S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 16/56 Chandan then took them to U-13, Main Green Park, New Delhi, for the arrest of co-accused Vijay Shukla, and from there, at his instance, Vijay Shukla was apprehended. He was also interrogated by the IO, and he also confessed his involved in the crime, and his disclosure statement was proved as EX.PW4/G. He identified accused Vijay Shukla in the Court. He also proved his arrest memo and his personal search memo as EX.PW4/D and EX.PW4/E respectively. He further stated that accused Chandan and Vijay Shukla then took them to House No. B-120, Shakti Vihar, Meethapur, New Delhi, where their associates, Vicky @ Vaqil @ Raj Kumar and Raju Singh were apprehended at their instance. He proved their disclosure statements as EX.PW4/L and EX.PW4/M respectively. He also proved their arrest memos as EX.PW4/H and EX.PW4/I respectively. Their personal search memos were also proved by him as EX.PW4/J and EX.PW4/K respectively. He stated that accused Vicky @ Vaqil got recovered about 15 articles i.e. Canon camera, mobile phone, golden colour chain, earrings, bangles etc, which were seized by the IO after converting them into pullanda and sealing them with the seal of S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 17/56 'NC' vide seizure memo EX.PW4/N. He stated that similarly, accused Raju Singh also got recovered about 11 robbed articles i.e. bangles, silver colour chain, mobile phone, video game player etc., and cash about Rs. 14,000/-, from the said house, which were seized by the IO after converting them into pullanda and sealing them with the seal of 'NC' vide seizure memo EX.PW4/O. He stated that all the four accused persons then took them to House bearing No. A-176, Har Govind Enclave, near Rajpur Khurd, where, they identified co-accused Mohd. Sabir. He proved his disclosure statement as EX.PW4/Q wherein he confessed his involvement in the crime. He proved his arrest memo and his personal search memo as EX.PW4/R and EX.PW4/S respectively. Accused Mohd. Sabir produced one black colour bag, which contained about 06 articles i.e. deshi katta with two live cartridges, screwdriver, saw (aari), one kitchen knife, one iron rod, one notepad etc. All the articles, except deshi katta and live cartridges, were kept in the said bag and converted into pullanda, sealed with the seal of 'NC' and seized vide seizure memo EX.PW4/T. Before seizing the deshi katta and live cartridges, IO prepared sketch of S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 18/56 the same which he proved as EX.PW4/U. The deshi katta and the live cartridges were kept in a separate pullanda, which was duly sealed with the seal of 'NC' and seized vide seizure memo EX.PW4/V. Thereafter, they all alongwith accused persons and case property, came to PS. Case property was deposited in the Malkhana. He identified accused Vicky @ Vaqil @ Raj Kumar, Mohd. Sabir and Raju Singh in the Court. He also proved separate pointing-out-memos of the occurrence, at the instance of accused Raju Singh, Vicky @ Vaqil @ Raj Kumar and Mohd. Sabir as EX.PW4/Y, EX.PW4/Z and EX.PW4/AA respectively. IO also prepared site-plans of the places of recoveries as EX.PW4/P and EX.PW4/X. In his cross-examination for accused Vicky @ Raj Kumar, he could not tell as to how many members were there in the raiding party. He joined the investigation with SI Nihal Chand at about 3.30-4.30 AM (early morning) and at that time, IO was interrogating accused Chandan. At that time, IO had not recorded his disclosure statement, only oral interrogation was being conducted. They left PS at about 5.15-5.30 AM and went to Gulmohar Park where they reached within 10-15 minutes and S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 19/56 remained there for about 30-45 minutes. They stayed at the house of the complainant for about one hour. He could not tell the specific time, when they left the house of the complainant for going to the house of co-accused Vijay Shukla at Green Park, and it took about 2 - 3 hours in locating the house of accused Vijay Shukla, as accused Chandan was not aware about the exact location of that house. They finally reached at the house of accused Vijay Shukla, at about 9.00 AM, and remained there for about 1 hours 45 minutes. They left the house of accused Vijay Shukla at about 10.50 AM, and it took about 30 minutes in reaching the house of co-accused persons Vicky @ Vaqil and Raju Singh at Meethapur, New Delhi. Both the said accused met them in a room. At that time, no family member of the said accused persons, was present there. He could not tell as to whether the said house was built up in 50 Sq. Yrd, or 100 Sq. Yrd or 150 Sq. Yrd. IO had asked the adjacent neighbourers to join the investigation, but none had agreed. Both the accused were interrogated in the said room itself. They left that place at about 12.00 Noon, for A-176, Har Govind Enclave, and remained there till about 1.00-1.15 PM, and they S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 20/56 finally reached PS at about 1.45 - 2.00 PM. In his cross- examination for accused Raju Singh, he could not tell as to how many persons were present inside the house. IO had not taken any photographs at the time of effecting recovery. In his cross- examination for accused Vijay Shukla, he could not tell the time when they reached at the house of accused Vijay Shukla. At the time of arrest of accused Vijay Shukla, IO had asked the public persons to join the investigation, but none had agreed. In his cross- examination for accused Mohd. Sabir, he stated that they reached at the house of accused Mohd. Sabir at about 12.00-12.15 PM. At that time, complainant was not present there.
5.9 PW-9 Shri Rajender Singh, M.M proved the TIP application of accused Mohd. Sabir, Vicky and Raju Singh on 25.07.2012 as Ex. PW9/A which was marked to him by Sh. Ankit Singla, Ld. M.M, for TIP. He stated that he (witness) fixed the application for TIP for 03.08.2012. He proved the TIP of accused Mohd. Sabir as Ex. PW9/B; of accused Raju Singh as Ex. PW9/C and of accused Vicky as Ex. PW9/D. He stated that the S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 21/56 complainant Ritu Singhal could not identify the accused persons. He allowed the copy of the TIP proceedings to the IO vide his endorsement Ex. PW9/E. He further stated that on 04.08.2012, Sh. Ankit Singla, Ld. M.M marked another application for TIP of the case property, to him. He fixed the said proceedings for 13.08.2012 vide his endorsement Ex.PW9/F. He stated that the complainant Mrs. Ritu Singhal identified all the articles which he proved as Ex. PW9/G. He proved the TIP proceedings of the case property as Ex. PW9/H. He allowed the copy of the proceedings to the IO vide his endorsement Ex. PW9/I. In his cross-examination for accused Vicky, he could not tell, if the complainant was under
fear at the time of TIP or not. He stated that in case, anything unusual in the behaviour of the witness is noticed, the same is generally mentioned in the TIP proceedings. He stated that he conducted the proceedings in proper legal manner.
5.10 PW-10 Retd. SI Nihal Chand is the IO. He stated that on 17.07.2012 at about 10.15 PM, he received DD No. 39-A (EX.PW2/A). Thereafter, he alongwith Ct. Ram Ratan reached at S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 22/56 place of incident i.e. D-30, Gulmohar Park, New Delhi, where complainant-Smt. Ritu Singhal met them alongwith her 10-12 years' old son and her servant - Chandan. He recorded her statement (EX.PW1/A), and he prepared rukka on it, which he proved as EX.PW10/A. The rukka was handed over to Ct. Ram Ratan for registration of FIR. He made inquiries from the servant -
Chandan and suspected him. Ct. Ram Ratan returned back at the spot and he handed over copy of FIR and original rukka to the IO. They brought Chandan to Police Station, after midnight i.e. on 18.07.2012, and he was arrested there vide arrest memo EX.PW4/B and his personal search was conducted vide memo already EX.PW4/C. Chandan revealed that he was engaged as servant in the house of Smt. Ritu Singhal, by Vijay Shukla, and one day, he alongwith his associates-Vijay Shukla, Mohd. Sabir, Raju Singh and Vicky @ Raj Kumar had met with each other and made planning for committing robbery in the house of Ritu Singhal, as earlier, he was directed by Vijay Shukla at the time of engaging him as servant, to give the information about the movement of the owner of the house. As per planning, accused Chandan had made S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 23/56 call to Vijay Shukla on 17.07.2012, and other accused persons came at the house of Ritu Singhal and committed robbery. He recorded his disclosure statement (EX.PW4/A). In pursuance of his disclosure statement, they reached at U-13, Green Park, New Delhi, and accused Vijay Shukla was arrested from there vide arrest memo (Ex.PW4/D) and his personal search was conducted vide memo EX.PW4/E and his disclosure statement was proved as Ex. PW4/G. Thereafter, both the accused persons took them to House No. B-120 Shakti Vihar, Meethapur, New Delhi, from where, they apprehended accused Raju Singh and Vicky @ Raj Kumar @ Vaqil, from a room which they had taken on rent. The IO also prepared pointing-out memo (Ex. PW4/BB) of the house of accused persons at the instance of accused Chandan. IO also made inquiries from both of them and also recorded their disclosure statements (EX.PW4/L of Vicky @ Raj Kumar @ Vaqil) and (EX.PW4/M of accused Raju Singh). Both the accused persons also produced robbed articles. Accused Vicky @ Raj Kumar @ Vaqil produced about 15 articles and accused Raju Singh @ Sunny produced about 12 articles including cash of Rs. 14,200/- from the S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 24/56 said room itself. He seized them vide seizure memos EX.PW4/N of accused Vicky @ Raj Kumar @ Vaqil and EX.PW4/O of accused Raju Singh. Both the said accused persons were arrested and searched vide arrest memos EX.PW4/I (of accused Raju Singh) and EX.PW4/H (of accused Vicky @ Raj Kumar @ Vaqil), and personal search memos EX.PW4/K (of accused Raju Singh) and EX.PW4/J (of accused Vicky @ Raj Kumar @ Vaqil). IO also prepared site plan of the place of recovery, and the same was proved as EX.PW4/P. Thereafter, accused persons led them to Har Govind Enclave, where, accused Vijay Shukla pointed out the house of their co-associate, namely Mohd. Sabir and from there, accused Mohd. Sabir was apprehended, and he was also interrogated, in which, he confessed his guilt. He recorded his disclosure statement (EX.PW4/Q). He also produced a bag which contained one Katta, one Saw, knife, screwdriver, iron rod and notepad which were seized by him vide seizure memo EX.PW4/T after sealing them with the seal of 'NC'. He proved the sketch of Saw, Katta, Cartridges as EX.PW4/W and EX.PW4/U respectively. He proved the seizure memo of Katta and live cartridges as S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 25/56 EX.PW4/V. The site plan of the place of recovery was proved as EX.PW4/X. Arrest memo of accused Mohd. Sabir was proved as EX.PW4/R and his personal search memo was proved as EX.PW4/S. He also proved the pointing-out memo of the house of accused Mohd. Sabir at the instance of Vijay Shukla as EX.PW4/F. Case property was deposited in the Maalkhana. He identified all the accused persons in the court. In his cross-examination for accused Raju Singh, he stated that he did not consider it necessary to obtain call details of mobile of accused persons. He stated that he did not ask the complainant as to how she untied herself. At the time of recording statement of the complainant, she was perplexed and she had not disclosed about the details of all the articles, but later on, she had submitted a list of articles, which were looted in the present incident. He could not tell whether the complainant had given any receipt of ownership of stolen articles or not. He had made local enquiries from nearby neighbourers, and they confirmed about the incident. They reached Methapur on 18.07.2012 at about 11-11.30 AM. He alongwith SI Sanjay, HC Ishwar Singh and two Constables alongwith Driver of Govt. Gypsy S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 26/56 had gone to Meethapur. The distance between Green Park to Meethapur is about 12-15 Kilometers. The accused persons had kept the looted articles in two Potlies separately, and the cash was also recovered from one of the Potlies, which was recovered from the possession of accused Raju Singh. They remained at Meethapur for about one hour and left from there at about 12-12.30 PM. From there, they went to Rajpur Khurd, Har Govind Enclave, and from there, accused Mohd. Sabir was arrested, and from there, they came back to PS at about 2.00 PM. On the same day i.e. 18.07.2012, accused Raju Singh also pointed out the place of occurrence i.e. D-30, Gulmohar Park. In his cross examination for accused Vijay Shukla, he stated that he did not make any inquiry from the caller of DD No. 39-A. The complainant employed accused Chandan through accused Vijay Shukla, as servant, about one or two months prior to the incident. He stated that he did not consider it necessary to inquire from accused Chandan as to from which mobile, he used to talk with accused Vijay Shukla. He admitted that nothing was recovered at the instance of accused Vijay Shukla. In his cross-examination for accused Mohd. Sabir, S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 27/56 he stated that he saw accused Mohd. Sabir for the first time at Har Govind Enclave from where he was arrested at about 12.30-12.45 PM. He stated that from accused Mohd. Sabir, one Notepad alongwith charger, which was stolen, was recovered, alongwith knife, saw, saria and screwdriver, etc. He stated that he did not record the statement of the son of the complainant, as he did not feel it necessary, as he was minor. The Katta from the accused Mohd. Sabir was recovered alongwith two cartridges. In his cross- examination for accused Vicky @ Raj Kumar, he stated that the accused Chandan was brought to PS from the house of the complainant at about 5.30-6.00 AM, in the morning. He was interrogated in the police station at about 5.30-6.00 AM. He recorded his disclosure statement in the PS at the same time. He alongwith SI Sanjay and HC Ishwar left for Green Park in between 9-10 AM in Govt Gypsy. They reached G-13 or U-13, Green Park at about 10.00 AM, to arrest accused Vijay Shukla. There, they remained for about 30-35 minutes. They left Green Park in between 10.30-11.00 AM. The distance between Green Park and Shakti Vihar is about 12-15 Kilometer, and they reached there in 20-25 S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 28/56 minutes. There were two Potlies lying towards their bed, and some household articles were also lying in the room. The TIP of the all the recovered articles was got conducted. He admitted that at the time of TIP of the accused persons, the complainant was afraid and due to this, she refused to identify the accused. However, he did not record her any supplementary statement in this regard. 5.11 PW-11 HC Umed Singh is the MHC(M). He proved the depositing of four pullandas by SI Nihal Chand on 18.07.2012 which contained recovered articles like knife, saw, blade of saw, screwdriver, iron saria, note-pad, a Dessi Katta, two live cartridges and pieces of clothes and strings. He proved the entries to this effect vide Entry No. 1734 as Ex. PW11/A1 to Ex.PW11/A4. He also proved the deposit of personal search of the accused persons in the same Entry as Ex. PW11/A5 to A7. He stated that on 23.08.2012, he sent one sealed pullanda containing pistol and two live cartridges to FSL, Rohini through Ct. Purshotam vide RC No. 30/21/12 and proved the same as Ex. PW11/B. S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 29/56
6. Statements of all the five accused persons were recorded under Section 313 Cr.P.C and the incriminating circumstances were put to them. Accused Vikcy @ Raj Kumar denied his involvement in the case. He stated that he has been falsely implicated in this case. He stated that he was brought to the Police Station from his house by a Constable and thereafter, he was falsely arrested. Regarding recoveries, he stated that nothing was recovered from his possession or at his instance. Regarding his identification in court by the complainant, he stated that he was wrongly identified by the complainant at the instance of the IO. Accused Mohd. Sabir stated that he was lifted by the Police from Arjun Nagar and was falsely implicated in this case. He also stated that nothing was recovered from his possession or at his instance. He also stated that he was identified by the complainant at the instance of the IO. He stated that IO had asked him to become a Mukhbir (secret informer) and when he denied, he was falsely implicated in this case by the IO. Accused Chandan Kumar stated that inquiries were made from him by the Police but he was falsely arrested in this case. He denied to have made any disclosure to the S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 30/56 IO and stated that his signatures were obtained by the IO on some blank papers. He denied to be present at the time of the incident and stated that on that day, he had gone to his servant quarter, which was situated at the terrace after finishing his domestic work, when the incident took place. Accused Raju Singh also stated that he was lifted from his house by the Police and nothing was recovered from his possession or at his instance. He also stated that he was wrongly identified by the complainant at the instance of the IO and that he has been falsely implicated in this case. Accused Vijay Shukla stated that nothing was recovered from him or at his instance. He stated that he has been falsely implicated in this case.
7. None of the accused persons desired to bring any evidence in their defence.
8. Sh. Tariq Hashmi, Ld. Legal Aid Counsel for accused Vicky and Chandan argued that the call at 100 number, after the incident, was received with respect to robbery at House No. D-31, Gulmohar Park, New Delhi, whereas no such robbery had taken S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 31/56 place at House No. D-31 and as per the prosecution case, the incident in question had taken place at House No. 30. He argued that although son of the complainant is also stated to be present in the house at the time of robbery but he was not examined by the prosecution. He stated that the TIP proceedings were carried out before the Ld. Metropolitan Magistrate after 15 days of arrest and in that TIP proceedings, the accused persons could not be identified by the complainant. She did not make any complaint of threat and intimidation to the Ld. Metropolitan Magistrate which shows that she bonafidely did not identify the accused persons as they were not involved. It has been stated that the complainant appeared before this court after 11 months and there, she identified the accused persons which is nothing but at the instance of the IO. He has placed reliance of a judgment of the Hon'ble Supreme Court in the case of Ravi @ Ravi Chandaran vs. State 2007(3) RCR (Criminal) 97, to say that delay in holding the TIP loses its significance. He further argued that accused Chandan was working as a servant in the house of the complainant but there is no call record to prove that he called the other co-accused persons in the S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 32/56 house to commit the robbery. It is stated that the recoveries which have been shown from the accused Vicky, are planted and even their identification by the complainant in TIP is doubtful as the IO had not mixed those articles with other articles. It has been argued that there are material contradictions in the depositions of the witnesses which cast serious doubts about the prosecution case. On these grounds, acquittal has been prayed for the accused persons.
9. Sh. A.K. Tiwari, Ld. Counsel for accused Mohd. Sabir argued that the arrest of the accused and the alleged recoveries are doubtful as no public person was involved in the investigation of the case by the Police. He has stated that the accused was not identified in the judicial TIP. He further argued that the accused was arrested at the disclosure of co-accused and the recovery of weapon from him is planted. He also argued that there is no recovery of any robbed article from him. It is stated that the accused has been falsely implicated in this case only to crack the robbery and since the accused has no previous involvement, he S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 33/56 may be acquitted.
10. Sh. S.K. Singh, Ld. Counsel for accused Vijay Shukla argued that the accused Vijay Shukla was working as a servant in a nearby house of the complainant and on her asking, he had only suggested the name of Chandan whom he knew only by face and he had no other acquaintance with Chandan. He argued that there is no recovery of any robbed article from him and he has been falsely implicated in this case. Acquittal has been prayed for him also.
11. Shri T.S. Pandey, Ld. Counsel for accused Raju Singh also stated that the accused was not identified in the judicial TIP by the complainant which shows that the accused was not involved in this case. He further stated that the recoveries from the accused are planted and since the recoveries were not made in the presence of any independent public witness, the same has no value.
12. On the other hand, Sh. S.K. Kain, Ld. Addl. PP stated that the prosecution has been able to prove its case beyond all S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 34/56 reasonable doubts. He stated that the robbery, in this case, took place on the night of 17.07.2012 and on the very next day in the early morning, accused Chandan was arrested and he disclosed the role of other accused persons, who too were arrested and the robbed articles were recovered. So far as non-identification of the accused persons by the complainant in judicial TIP is concerned, he argued that the same was due to the reason that the complainant felt intimidated. Thereafter, she gathered courage and identified all the accused persons in court which was on oath and hence the same should be given weightage. He stated that the deposition of various witnesses corroborate with each other and hence the accused persons may be convicted.
13. I have heard both the sides and have perused the records of the case.
14. Accused Vicky @ Raj Kumar, Mohd. Sabir and accused Raju Singh were charged for the offences under Section 395/34 and Section 412 IPC. Since no robbed article was recovered from accused Vijay Shukla and Chandan, who are S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 35/56 servants, they were only charged under Section 395/34 IPC. Accused Mohd. Sabir was additionally charged under Section 397 IPC and under Section 25/27 of Arms Act as he had used Katta and knife in the offence and the same were recovered.
15. An argument has been made that the initial call was with respect to robbery at House No. D-31, Gulmohar Park and not at D-30, Gulmohar Park, where the complainant was residing and where the robbery is stated to have taken place. The argument is bereft of merit. A perusal of Ex. PW2/A, which is DD No. 39A, shows that the call was that a few persons, who had come with knives, are giving beatings near D-31, Gulmohar Park, Yusuf Sarai. Hence, the call was regarding the incident near D-31, Gulmohar Park and not at D-31, Gulmohar Park. There is a difference in 'near' D-31 Gulmohar Park and 'at' D-31 Gulmohar Park. Once the caller says that the incident was near D-31, Gulmohar Park and the incident of robbery was found to have taken place at D-30, Gulmohar Park, there is no contradiction in the prosecution case, which calls for harboring any doubt about the S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 36/56 prosecution case.
16. It has been next argued that son of the complainant was also present in the house at the time of robbery but he has not been cited as a witness by the prosecution, which shows that there is no corroboration to the event of robbery as stated by the complainant. Initially, Ld. Counsel for accused Vicky and Chandan even doubted the robbery having taken place but subsequently, he admitted that a robbery did take place at the house of the complainant on the date and time mentioned in the FIR, but he maintained that the accused persons are innocent and have been falsely implicated in this case. Hence, the incident of robbery having taken place at the house of the complainant on the date and time mentioned in the FIR is not disputed. So far as non- examination of son of the complainant as a witness is concerned, it is seen that the said son of the complainant was about 10 years of age at the time of the incident. He being too young to depose in court and the circumstance that the incident of robbery is not disputed, non citing of the said son of the complainant as a witness, S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 37/56 is not fatal to the prosecution case. In Krishna Mochi vs. State of Bihar 2002(6) SCC 81, it was held that it is the quality of evidence that matters and not the number of witnesses. Credible evidence of even a solitary witness can form basis of conviction. As such, nothing turns on due to non- citing and examination of 10 years old son of the complainant as a witness in this case. So far as the plea of innocence is concerned, the same shall be considered in following paras of this judgment.
17. Out of the eleven witnesses which were examined by the prosecution, only one witness is an independent public person and she is the complainant of the case. She fully supported the prosecution case. She narrated the incident of robbery on the same lines as was recorded in the Asal Tehrir Ex. PW1/A. She stated that three boys had entered her house and after tying her and her 10 years old son and her servant, they ransacked her house and took away jewellery articles, two mobile phones make Samsung and Nokia, Rs. 20,000/- cash, a Cannon camera, a Sony Camcorder and a Sony laptop. She also stated that one of the accused put a S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 38/56 Katta on the temple of her son and she was threatened with knife. Police interrogated her servant Chandan, whom she had employed about 2-3 months prior to the incident on the recommendation of another servant Vijay Shukla, who was working in her neighbourhood in a house as a servant. During Police interrogation, Chandan confessed his involvement in the crime and disclosed the involvement of other accused persons. At his instance, other servant Vijay Shukla was apprehended and he too confessed his involvement in the crime that he had got employed Chandan in the house of the complainant with the instructions to inform him about the jewellery etc. and non-availability of the owner of that house. He then got arrested accused Vicky @ Rajkumar. From him, various robbed articles viz. Wrist watches, Cannon digital camera, Samsung mobile phone, Apple I-pod, 70 Indian and Foreign coins and eight jewellery articles, were recovered. Thereafter, the accused persons led Police to the house of accused Raju Singh and from Raju Singh, robbed articles, namely, wrist watches, Sony handicam, Seagate external hard disk, Sony PSP, Nokia mobile phone, mobile phone make - FIVE, MAP MY INDIA device, a few S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 39/56 jewellery articles etc. were recovered. Then, they led Police to the house of co-accused Mohd. Sabir, from whom, the robbed Sony VAIO notepad was recovered. A knife, a saw, a katta (all of which were used in the present case) were also recovered, besides two blades of saw, a screwdriver, a saria and two live cartridges. All this was done before 2:00 p.m on 18.07.2012 i.e within about 18 hours from the time of the incident.
18. It has been argued on behalf of the accused persons that the accused persons are innocent and that they have been falsely implicated in this case. However, no plausible explanation is coming forth either from the facts of the case or from the accused persons as to why the accused persons would be falsely implicated in this case. In the absence of any plausible explanation in this regard, coupled with the circumstance that no evidence was brought on record by the accused persons in their defence by way of defence evidence, the said claim of the accused persons that they have been falsely implicated in this case, would only be an after thought and nothing more than that.
S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 40/56
19. It has been argued that the TIP proceedings of the accused persons were conducted after 15 days of their arrest and it thus loses its significance. Reliance was placed in this regard on the judgment in Ravi vs. Ravi Chandaran's case (Supra). The argument is self contradictory. It is not denied by the Ld. Counsels for the accused persons that the complainant had not identified the accused persons in judicial TIP. When the accused persons were not identified by the complainant in the judicial TIP, where is the question of any significance of such a TIP? It was argued that the complainant could not identify the accused persons in the judicial TIP, which is a circumstance in favour of the accused persons. Regarding non-identification of the accused persons in the TIP, the complainant had stated in her examination-in-chief that "I was too scared on that day and was feeling intimidated in the atmosphere and hence could not identify them." The explanation given by the complainant for non-identification of the accused persons in judicial TIP is that she was feeling intimidated in the jail atmosphere. This explanation is not absurd as it so happens with the complainant, particularly, when the complainant is a lady that S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 41/56 she feels insecure in the hostile atmosphere in the jail and hence may not identify the persons, who had robbed her in her own house on the point of weapons. Weapons were put not only on the complainant, but also on her 10 years old son. She had come to know that the robbers were let in her house by her own servant and hence the feeling that the accused persons may cause more harm to her and her family members, would always be in her subconscious mind which will overpower her faculties and will compel her not to identify the accused persons in jail. The TIP was sought to be conducted on 03.08.2012 i.e after 15 days of the incident and hence the incident of the robbery committed in her well lit house by the accused persons with weapons, being fresh in her memory, cannot be ruled out. The complainant identified all the accused persons in court and she also gave reason for identifying the accused persons in court by saying that "today I am not feeling that scared and I can identify the accused persons in this court." The complainant, while in the witness box, felt assured that the accused persons have been in custody for quite sometime and by that time, she would have gathered courage to identify the accused persons in the court S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 42/56 and hence, she identified the accused persons. This behaviour of the witness is quite natural and the prosecution case cannot be doubted on this circumstance alone.
20. It has been argued that sufficient number of articles were not brought by the IO for mixing with the recovered articles for the purpose of their identification in TIP by the complainant. The TIP proceedings of articles is Ex. PW9/H, in which it is clearly mentioned that seven articles each for mixing up with the case property have been arranged. Even in the cross-examination of the complainant carried out on behalf of accused Vicky @ Rajkumar, she stated that there were various articles which were laid on the table of the Ld. Judge and she had identified her articles out of those. She denied the suggestion that only the case property was brought by the IO and it was not mixed up with other articles. She had stated that at the time of identification of the case property, she was alone in the Chamber of the Ld. Judge and the Police official had gone out of the room after bringing the articles. In this view of the matter, the argument that the case properties were not mixed up S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 43/56 with sufficient number of articles is devoid of merit.
21. Accused Chandan is the own servant of the complainant and accused Vijay Shukla is another servant, who was working in the neighbourhood of the complainant, at whose recommendation, the complainant had engaged accused Chandan as her servant. The engagement of accused Chandan at the recommendation/suggestion of co-accused Vijay Shukla in the house of the complainant, is not disputed. The other three accused persons, namely, Vicky, Mohd. Sabir and Raju Singh entered her house and robbed her using knife and gun and took away jewellery and other articles from her house. In the complaint given by her to the Police immediately after the incident, she mentioned that she has been robbed of her jewellery articles, cash Rs. 20,000/-, two mobile phones - Samsung and Nokia, a Cannon camera, a Sony Camcorder and a Sony laptop etc. From accused Vicky @ Rajkumar, Cannon camera, Samsung mobile and various jewellery articles were recovered. From accused Raju Singh, amongst other things, Sony Camcorder, Nokia phone, cash Rs. 14,200/- and some S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 44/56 jewellery articles, were recovered. From accused Mohd. Sabir, Sony notepad was recovered. All these articles were identified by the complainant in the TIP which was held on 13.08.2012 (Ex. PW9/H) and thereafter, they were handed over to her on the directions of the court on 24.08.2012 (Ex.PW1/D), on her execution of a superdarinama Ex. PW1/C. Although, no independent public person was associated in the recovery of these articles by Police, but this circumstance in itself cannot go against the prosecution as there is no law that any recovery effected by the Police, without involving any independent public person is to be doubted (reference Karamjeet Singh vs. NCT of Delhi AIR 2003 SC 1311). In Madhu vs. State of Karnataka 2013 SCC Online 1048 held that a witness is normally considered to be independent unless he springs from sources which are likely to be tainted and this usually means that the said witness has cause to bear such enmity against the accused so as to implicate him falsely. In view of the above, there can be no prohibition to the effect that a policeman cannot be a witness or that his deposition cannot be relied upon if it inspires confidence. Similarly, in Pradeep S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 45/56 Narayan Madgaonkar v. State of Maharashtra, AIR 1995 SC 1930 it was held that the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigation or in the prosecution. However, as far as possible the corroboration of their evidence on material particulars should be sought.
22. Similarly, very pertinent observation was made by the Hon'ble Supreme Court in this regard in NCT of Delhi vs. Sunil 2000 (8) AD-SC 613 in the following words:
"It is fallacious impression that when recovery is effected pursuant to any statement made by the accused, the document prepared by the IO, contemporaneous with such recovery, must necessarily be attested by independent witnesses. Of course, if any such statement leads to recovery of an article, it is open to the IO to take the signatures of any person present at that time on the document prepared for such recovery, but if no witness was present or if no person had agreed to affix his signatures on the document, it is difficult to lay down as a preposition of law that the document so prepared by the Police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the IO, who deposed to the fact of recovery based on the statement elicited from the S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 46/56 accused on its own worth."
23. The IO and other witnesses have stated that efforts were made to join the public persons in the arrest and recovery proceedings but none agreed for the same. It is common knowledge that the public persons do not come forward to join the proceedings conducted by the Police for their own beliefs and fears. In State of U.P. v. Anil Singh AIR 1988 SC 1998 the Hon'ble Supreme Court observed:
"In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable."
24. In such a situation when despite efforts, the public persons do not join the investigation, the recoveries effected by the Police, cannot be suspected to be actuated by malafide or malice. Since the recoveries have been effected from three accused persons S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 47/56 and they were also identified by the complainant in court and that the complainant had no enmity against the accused persons, the plea of false implication is nothing but a sham plea, which is required to be rejected.
25. Lastly, it has been argued that there are contradictions in the depositions of the witnesses. Ld. Counsels could not point out any material contradiction in the depositions of the witnesses so as to cast serious doubts about the prosecution case. It was stated that the witnesses have stated different timings for going to the houses of the accused persons. A perusal of depositions of witnesses PW-4 HC Ishwar, PW-8 SI Sanjay Sharma and PW-10 IO/SI Nihal Chand show that there are some differences in the timings deposed by them but the said differences are minor in nature and are not so material so as to cast doubts about the veracity of the prosecution case. The timings of going of the police officials at the houses of the accused persons for their arrest and recoveries are tabulated below for ready reference:
S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 48/56 Event PW-4 HC PW-8 SI Sanjay PW-10 SI Nihal Ishwar Sharma Chand Time when 5:30-6:00 AM brought Chandan to P.S. Time and duration 4:30-5:00 AM 3:30-4:30 AM 5:30-6:00 AM when Chandan for 1- 1 ½ hrs. for 1 hour for 1 hour was interrogated Time when 10:00 a.m 9:00 a.m 10:00 AM reached Green Park Duration for which 10-20 minutes 1 hr. 45 min. 30-35 minutes police officials Left at 10:50 AM Left at remained there 10:30-11:00 Time when 11:00-11:15 AM In 30 minutes 11:00-11:30 AM reached Meethapur Time when 11:45-12:00 12:15 PM reached Har Noon Govind Enclave Time when 2:00 PM 1:45-2:00 PM 2:00 PM reached P.S
26. One circumstance which cannot be ignored in this case is that the accused persons and the recoveries were all effected by 2:00 p.m of 18.07.2012 whereas the Police was informed about the incident on 17.07.2012 at about 10:00 p.m. In other words, in a span of 16 hours, five accused persons were arrested and the recoveries were effected from three accused persons. This short time span in which the accused persons were arrested and S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 49/56 recoveries were made, lend credence to the Police action.
27. In Rakesh vs. State of Madhya Pradesh 2011(10) AD
- SC 271, it was held as under:
"Even if , there are minor discrepancies between the narration of witnesses when they speak on details, unless such contradictions are of material dimensions, the same should not be used to discard the evidence in its entirety. The trivial discrepancy ought not to obliterate the otherwise acceptable evidence."
28. Similarly, in Takdir Shamsuddin Sheikh vs. State of Gujarat AIR 2012 SC 37, it was held as under:
"It is settled legal position that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions/improvements embellishments etc. had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistency, omission or improvements on trivial matters without affecting the case of the prosecution should not be made by the court to reject the evidence in its entirety. The court after going through the entire evidence must form an opinion about the credibility of the witnesses."
S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 50/56
29. In Bhajan Singh vs. State of Haryana 2011(8) AD - SC 203, it was held as under:-
" It is settled legal preposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, may not prompt the court to reject the evidence in its entirety. Irrelevant details which do not in any way corrode the credibility of a witness, cannot be lebelled as omissions or contradictions. Difference in some minor details, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witnesses. As the mental capabilities of a human being cannot be expected to be attuned to absorb all details, minor discrepancies are bound to occur in the statements of the witnesses."
30. Hon'ble the Supreme Court in State of H. P. v. Lekh Raj 2000 (1) SCC 247 on the aspect of discrepancy observed as under :
S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 51/56 "Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies such discrepancies in law may render credential to the depositions. Parrot-like statements are disfavoured by the Courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement."
31. Similarly, in Sucha Singh vs. State of Punjab AIR 2003 SC 3617, it was held that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish and innocent.
32. In view of the above authoritative judicial pronouncements, if the variations as noted above are tested, it is found that the same are only minor discrepancies of very very S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 52/56 trivial nature and do not amount to contradictions so as to have the potential of upsetting the prosecution case. None of the accused led any evidence in their defence to prove that they were falsely implicated in this case. Robbery becomes dacoity when it is done by five or more persons and is punishable under Section 395 IPC. Taking an overall view of the matter, the identification of the accused persons by the complainant in court and recoveries of the looted articles as well as weapons used in the offence, all the accused persons, (except accused Mohd. Sabir, who is convicted under Section 397 IPC) are guilty of the offence punishable u/s 395/34 IPC. Since recovery of looted articles were made from accused Vicky, Mohd. Sabir and Raju Singh, and the said recoveries have been duly identified by the complainant in TIP, these three accused persons namely Vicky, Mohd. Sabir and Raju Singh are also convicted u/s 412 IPC.
33. It was argued that no injury was caused by the accused persons to any person and hence it cannot be said that the weapons were 'used' so as to be covered by Section 397 IPC. Again, the S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 53/56 argument is bereft of merit. The complainant has stated in her deposition that the accused persons had put knife on her throat and a gun was put on the temple of her son. A 'saw' was also wielded by an assailant. All these weapons were recovered from accused Mohd. Sabir. The very fact that the weapons were wielded by the assailants at the time of dacoity and in the fear of the weapons, the belongings were taken away by the accused persons from the house of the complainant, the weapons were 'used' by them as their purpose of wielding the weapons was to commit robbery. It is, therefore, not necessary that the accused persons should have caused any injury to the victims from the said weapons so as to qualify the word 'use'. In a recent case titled as Seetal vs. State 2014 (7) AD Del 285, the Hon'ble Delhi High Court held as under:-
"The resultant position that emerges is that Section 397 would be attracted even if the accused, who possessed a knife during the robbery, does not actually use it to threaten the victim. A victim who has noticed the knife in the hand of the accused would undoubtedly feel threatened. It is possible that the victim may not have noticed what type of knife it is and whether it is S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 54/56 capable of causing actual harm. In other words, the actual size or length of the knife would not matter. In Phool Kumar, the Supreme Court noticed the observations of the Bombay High Court in Govind Dipaji More v. State AIR 1956 Bom 353 that if the knife "was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property, that would amount to using the weapon within the meaning of Section 397." Therefore, the fact that the knife was not recovered at all, or that the recovered weapon was not shown during the course of trial to the victim, would not matter as long as the eye witnesses to the crime are able to convincingly and consistently recount the fact that they were threatened by the sight of the accused wielding the knife into parting with their belongings."
34. A katta, knife and a saw were recovered from accused Sabir, which were used during commission of robbery and he is, therefore, convicted for the offence u/s 397 IPC.
35. Section 27 of the Arms Act makes use of any arm or any ammunition in contravention of Section 5, punishable. Since accused Mohd. Sabir had used the arms (katta, knife and saw) in the robbery which were got recovered from his house, he is also convicted for the offence under Section 27 of the Arms Act. However, the accused Mohd. Sabir is acquitted for the offence S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 55/56 under Section 25 of the Arms Act as the Notification which prohibits the possession of the arms was not produced or proved by the prosecution.
Announced in the open Court. (Rajeev Bansal) Dated:18.12.2014 ASJ-3/South District Saket Courts, New Delhi S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 56/56 IN THE COURT OF SHRI RAJEEV BANSAL, ASJ-03 (SOUTH DISTRICT), SAKET COURTS, NEW DELHI. SC No. : 26/12 (Unique ID No. 02406R0227512012) FIR No. 188/12 PS: Hauz Khas U/S: 395/397/34/412 IPC and 25/27 Arms Act State Vs (1) Vicky @ Raj Kumar @ Mukesh @ Vaqil S/o Kamleshwari Yadav, R/o Village-Bhalwa, PS-Katoria, Distt. Banka (Bihar) (2) Mohd. Sabir @ Sonu S/o Mohd. Rahisuddin R/o A-176, J.J. Camp, Tigri, New Delhi. (3) Vijay Shukla S/o Siya Ram Shukla, R/o Village- Raniyapur, PS-Bishesar Ganj, Distt. Bahraich (U.P.) (4) Chandan Kumar S/o Sukh Dev Mahto R/o Village- Matihari, Distt. Begu Sarai (Bihar) S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 57/56 (5) Raju Singh @ Sunny S/o Vijay Singh, R/o 874, Vinay Nagar, Village-Avaanpur, PS-Palla, Distt. Faridabad (Haryana) ORDER ON SENTENCE
1. Ld. Counsel, Sh. Tariq Hashmi for convicts Vicky and Chandan has argued that the convicts are first time offenders and have families to support. It has been stated that all the convicts, except convict Vijay Shukla, are in custody since 18.07.2012, a lenient view may be taken against them. For convict Vijay Shukla, it has been stated that he also suffered custody for about 10 months after his arrest. It has been stated that the convicts may be released on the period of custody already undergone by them.
2. On the other hand, the Ld. Addl. PP has argued that the convicts be given befitting punishment.
3. Heard both the sides and records have been perused.
4. The conviction of the accused persons is as under:-
Vicky @ Raj Kumar - Section 395/34 and 412 IPC. Mohd. Sabir - Section 397 & 412 IPC and 27 Arms Act. Vijay Shukla - Section 395/34 IPC.
Chandan Singh - Section 395/34 IPC.
Raju Singh - Section 395/34 and 412 IPC.
S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 58/56
5. Section 395 IPC provides for a punishment of imprisonment of life or rigorous imprisonment for a term which may extend to 10 years and also to fine. Section 397 IPC provides for a minimum punishment of 7 years. Section 412 IPC provides punishment with imprisonment for life or with R.I upto 10 years and fine. Section 27 of the Arms Act provides for a minimum punishment of 3 years with may extend to 7 years and fine.
6. In Shailesh Jaswantbhai vs. State of Gujarat 2006 (2) SCC 359, it was held that undue sympathy to impose inadequate sentence would do more harm to the justice system. It is the duty of every court to award proper sentence having regard to the nature of offence and the manner of its commission. In Ahmad Hussain Vali Mohd. Saiyed vs. State of Gujarat 2009 (7) SCC 254 and Jameel vs. State of U.P. 2010 (12) SCC 532, it was held that justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. Similarly, in Guru Basvaraj vs. State of Karnataka 2012 (8) SCC 734, it was held that it is the duty of the court to see that appropriate sentence is imposed, regard being had to the commission of the crime and its impact on social order. The cry of the collective for justice, which includes adequate punishment, cannot be lightly ignored. In Gopal Singh vs. State of Uttarakhand 2013 (3) SCC 444, it was held that just punishment is S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 59/56 the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously, the principle of proportionality between the crime and the punishment, cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of criminal offence.
7. In the present case, all the convicts jointly committed dacoity at the house of the complainant of cash, jewellery and other articles. Knife, gun and a saw were used in the offence. Some cash, some jewellery articles, mobile phones, cameras etc. were recovered from three convicts. Taking into consideration the nature of offence, the convicts cannot be released on the period of custody already undergone by them. Having regard to the extent of punishment provided in law and the circumstance that the convicts are first time offenders, I deem it appropriate to pass the following sentence against each convict:-
7.1 Vicky @ Raj Kumar is sentenced to undergo R.I of 7 years and fine of Rs. 7,000/- for the offence under Section 395 IPC and in default of payment of fine, the convict shall suffer further simple imprisonment for a period of 1 year. For the offence under Section 412 IPC, the convict is sentenced to R.I for a period of 3 years and fine of Rs. 3,000/- and in default of payment of fine, the convict shall suffer further simple imprisonment for a period of 9 months.
S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 60/56 7.2 Mohd. Sabir is sentenced to undergo R.I of 7 years for the offence under Section 397 IPC. For the offence under Section 412 IPC, the convict is sentenced to R.I for a period of 3 years and fine of Rs. 3,000/- and in default of payment of fine, the convict shall suffer further simple imprisonment for a period of 9 months. For the offence,under Section 27 Arms Act, convict Mohd. Sabir is sentenced to undergo 3 years of R.I with fine of Rs. 3,000/- and in default of payment of fine, the convict shall suffer further simple imprisonment for a period of 9 months.
7.3 Vijay Shukla is sentenced to undergo R.I of 7 years and fine of Rs. 7,000/- for the offence under Section 395 IPC and in default of payment of fine, the convict shall suffer further simple imprisonment for a period of 1 year.
7.4 Chandan Singh is sentenced to undergo R.I of 7 years and fine of Rs. 7,000/- for the offence under Section 395 IPC and in default of payment of fine, the convict shall suffer further simple imprisonment for a period of 1 year.
7.5 Raju Singh is sentenced to undergo R.I of 7 years and fine of Rs. 7,000/- for the offence under Section 395 IPC and in default of payment of fine, the convict shall suffer further simple imprisonment for a period of 1 year. For the offence under Section 412 IPC, the convict is sentenced to R.I for a period of 3 years and S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 61/56 fine of Rs. 3,000/- and in default of payment of fine, the convict shall suffer further simple imprisonment for a period of 9 months.
8. All the sentences shall run concurrently. The convicts shall be entitled to the benefit of Section 428 Cr.P.C.
9. Fine not paid.
10. A copy of the Judgment and this 'Order on Sentence' be provided to all the convicts free of cost.
11. File be consigned to Record Room.
Announced in the open court. (Rajeev Bansal)
Dated: 20.12.2014 ASJ-3/South District
Saket Courts, New Delhi
S.C. No. 26/12 : FIR No. 188/12 State vs. Vicky @ Rajkumar etc. 62/56