Delhi District Court
St. vs . Sunil Kumar Singh & Ors. on 1 April, 2015
IN THE COURT OF SH. SANDEEP YADAV,
ADDITIONAL SESSIONS JUDGE5, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
SC No. 11/14
ID No. 02403R0947172008
FIR No. 302/08
PS. Mehrauli
U/s. 395/412 IPC
State
Vs.
1. Sunil Kumar Singh
S/o. Sh. Foran Singh
R/o. Vill. Narhauli
PS Bah, District Agra, U.P. .... Accused
2. Pratibhan Sikarwar
S/o. Matadin,
R/o. Village. Nanglaby
PS Samsabad, District Agra,
U.P. .... Accused
3. Jitu @ Jitender
S/o. Sh. Shiv Singh
R/o. Vill. Narhauli
PS Bah, District Agra, U.P. .... Accused
4. Rajjuddin @ Raja
FIR No. 302/08 1/19
St. Vs. Sunil Kumar Singh & Ors.
S/o. Sh. Nizamuddin
R/o. Vill. Chamroha,
PS Bah, District Agra, U.P. .... Accused
Date of Institution : 01.10.2008
Final arguments heard on : 12.03.2015
Judgment pronounced on : 01.04.2015
Final Order : Acquitted
JUDGMENT
Prosecution version unfolded during trial is as under :
1. PW2 Shiv Pujan was employed as driver with Chaudhary Transport Cargo, B39, Vishwakarma Colony, Pul Prahladpur, Badarpur, New Delhi. On 13.06.08, at about 11.45 pm, PW2 Shiv Pujan was taking the truck bearing no. DL1LK 1565 loaded with paint from Okhla to Gurgaon. At about 12.15 am, when complainant while driving the aforesaid truck reached red light Lado Sarai, he noticed in the side mirror that one Maruti Van is following his truck. When the PW2 Shiv Pujan/complainant reached Sultanpur with the truck, the Maruti Van which was chasing the truck, stopped in front of the truck being driven by PW2 Shiv Pujan and PW2 Shiv Pujan also stopped the truck.
One boy from the Maruti Van came to PW2 Shiv Pujan and told FIR No. 302/08 2/19 St. Vs. Sunil Kumar Singh & Ors.
him that complainant has hit a vehicle and asked him to come to Police Station. When PW2 Shiv Pujan told him that he has not hit any vehicle, the boy who came out from Maruti Van, started beating the complainant and pulled him out of the truck. That boy slapped PW2 Shiv Pujan, snatched the key of the truck and chased the complainant away. PW2 Shiv Pujan started searching for telephonic means to contact his employer. When PW2 Shiv Pujan came to the spot after speaking to his employer on phone, the truck was found missing. Complainant expressed suspicion that the boy who had slapped him and other boys who were sitting in Maruti Van have taken the truck bearing no. DL1LK 1565. On being further inquired by the Investigating Officer, PW2 further told that the boys who were sitting in Matuti Van had pulled him into the Maruti Van and dropped him after driving the Maruti Van for some distance. PW2 Shiv Pujan further told that seven more boys were sitting in the Maruti Van and he can identify those boys. Information about the incident was recorded in Police Station vide DD No. 73A. On the statement of PW2 Shiv Pujan/complainant, a case u/s. 307/379 IPC was registered and investigation started. On 02.07.08, Investigating Officer received information from Police Station Etmaddoula District Agra that in case Nil/08, under section 412 IPC/102 Cr.PC, accused Jitu, Pratibhan Sikarwar, Sunil FIR No. 302/08 3/19 St. Vs. Sunil Kumar Singh & Ors.
Kumar and Khem Singh, have been arrested and they have admitted their involvement in the present case and the looted truck has been recovered from those accused persons. On receiving this information, Investigating Officer got issued production warrants against accused persons from the concerned Court. On 08.07.08, all the aforesaid four accused persons were produced before the Court and with the permission of the Court, they were arrested in this case. Complainant Shiv Pujan immediately on seeing four accused persons recognized /them saying that these boys were involved in the incident. Section 327/379 IPC were replaced by section 395/412 IPC in the FIR. On 13.07.08, accused Rajjuddin was arrested and pursuant to his disclosure statement, 10 buckets of paints which were part of goods loaded on the aforesaid truck were recovered. Accused Khem Singh was declared juvenile and separate proceedings were conducted against him at Juvenile Justice Board. Other accused persons whose names were disclosed by accused arrested in this case were Bhutto and Vicky, who could not be arrested.
2. After completion of investigation, charge sheet was filed in the Court. Accused Sunil Kumar Singh, Pratibhan Sikarwar, Jitu @ Jitender and Rajjuddin were charged u/s. 395 IPC and u/s. 412 IPC. Accused Rajjuddin was separately charged u/s. 412 IPC as FIR No. 302/08 4/19 St. Vs. Sunil Kumar Singh & Ors.
well. All the accused persons pleaded not guilty and claimed trial. Test identification parade proceeding of accused Rajjuddin was conducted. However, he refused to participate in test identification parade proceedings.
3. Prosecution examined 10 witnesses to prove the charges against the accused persons. Accused persons were examined u/s. 313 Cr.PC. Accused persons denied their involvement in the present case and claimed that they have been falsely implicated in this case. One defence witness namely Suresh Singh was examined by accused persons.
4. PW1 HC Kanwar Singh, PW2 Shiv Pujan, PW7 SI Santosh Kumar and PW9 Inspector Ajay Kumar Singh, are the material witnesses in this case. PW1 HC Kanwar Singh visited Agra on 05.07.08 as per the direction of Investigating Officer and seized the truck bearing no. DL1LK 1565 which was deposited in PS Etmaddoula vide seizure memo Ex. PW1/A, on 08.07.08. PW1 HC Kanwar Singh accompanied the Investigating Officer Inspector A.K. Singh to Patiala House Courts where accused Jitu, Pratibhan and Sunil, were arrested. PW1 HC Kanwar Singh also deposed about recovery of 10 buckets of paint at the instance of accused Rajjuddin from the godown of the brother of accused Rajjuddin.
5. PW2 Shiv Pujan inter alia deposed that in the year 2008, he FIR No. 302/08 5/19 St. Vs. Sunil Kumar Singh & Ors.
was residing at D11, PhaseI, Okhla, Delhi and was working as driver at Choudhary Transport Cargo, B39, Vishwakarma Colony, Pul Prahladpur, Badarpur, New Delhi. PW2 Shiv Pujan further deposed that on the intervening night of 1314.06.08, he left from Okhla with vehicle bearing no. DL1LK 1565 and the said vehicle was loaded with paints and he was going towards Gurgaon, Haryana and at about 1212.15 am when PW2 Shiv Pujan reached near Sultanpur, he saw through back mirror of the vehicle that one van was following his vehicle. PW2 Shiv Pujan further deposed that suddenly the said van over took his vehicle and driver of van obstructed him by placing his vehicle in front of the vehicle of PW2, one person came out of the said vehicle and blamed PW2 Shiv Pujan of having collided with his vehicle which was not true. All the four occupants came out and pulled PW2 out of his vehicle and started beating him and then pushed him into their vehicle and made him lie on the floor and then took him around for 11 ½ hours, when PW2 Shiv Pujan asked them as to where they were taking him, those boys told him that they were taking him to 'Sahab' in the Police Station. PW2 Shiv Pujan further deposed that those boys dropped him at Dwarka, accused persons snatched the key of vehicle and mobile phone and they had stripped him off his clothes and had tied his hands at the back and FIR No. 302/08 6/19 St. Vs. Sunil Kumar Singh & Ors.
also tied his legs. PW2 Shiv Pujan further deposed that he somehow managed to untie his legs and went to a tanker parked nearby, the driver of tanker was sleeping in the said tanker, PW2 Shiv Pujan woke him up and he untied the hands of PW2. PW2 Shiv Pujan further deposed that he was going towards the Police Station and on the way he met a person who made call to employer of PW2 from his mobile phone, employer of PW2 Shiv Pujan then called to PCR. PW2 Shiv Pujan further deposed that the person who had helped him received a call from PS Mehrauli on his mobile phone asking him not to worry and that help would be reaching soon and PW2 Shiv Pujan was asked to wait there. Employer of PW2 reached there at about 45 am and they then came to PS Mehrauli. Statement of PW2 Shiv Pujan Ex. PW2/A was recorded in the Police Station. PW2 Shiv Pujan further deposed that during investigation, he disclosed to the police that total six persons were involved in the incident and two were sitting inside the van. PW2 Shiv Pujan further deposed that he later on came to know that his vehicle bearing no. DL1LK 1565 was recovered in the area of Agra, U.P. At that time, it was empty. PW2 Shiv Pujan further deposed that an application was moved by vehicle owner Surender Singh Chaudhary for release of vehicle and the vehicle was released from the Police Station. FIR No. 302/08 7/19 St. Vs. Sunil Kumar Singh & Ors.
6. PW2 Shiv Pujan identified accused Rajjuddin as the same person who told him at the place of incident and stated that PW2 has hit against his vehicle and gave beating to him. PW2 Shiv Pujan also identified accused Jitender @ Jitu in the Court. PW2 Shiv Pujan was not able to identify remaining two accused and he was allowed to be cross examined by learned Additional Public Prosecutor for the State. During cross examination by learned Additional Public Prosecutor for the State, PW2 Shiv Pujan identified the remaining two accused persons.
7. PW4 Surender Chaudhary is the owner of truck no. DL1LK 1565 and deposed that he has got the aforesaid truck released on supardari vide supardarinama Ex. PW4/A and the said witness produced the truck in the parking of the Court and the truck was identified as Ex. P1.
8. PW5 HC Satbir Singh is the Duty Officer who registered the FIR in this case. PW6 Shri Pritam Singh, learned ACMM, South East District, proved the test identification parade report as Ex. PW6/A with respect to accused Rajjuddin.
9. PW7 SI Santosh Kumar PS Shergarh, Mathura, U.P., deposed that on 01.07.08, he was posted at PS Etmaddoula District Agra and all the four accused persons were arrested in case u/s. 307 IPC & Section 25 Arms Act and accused persons FIR No. 302/08 8/19 St. Vs. Sunil Kumar Singh & Ors.
disclosed that they have also committed dacoity of truck no. DL1A 1565 loaded with paint. PW7 SI Santosh Kumar further deposed that accused Jitender, Pratibhan, Sunil and Khem Singh were found in possession of robbed truck and they were also found in possession of 10 buckets of paint from Shiv Pujan. PW7 SI Santosh Kumar further deposed that accused Rajjuddin disclosed that they had sold the paint in Neb Sarai. PW7 SI Santosh Kumar further deposed that they were checking vehicles in front of RBS College, Sau Foota Road, Kalindi Road, Agra and they had secret information about the robbery of truck loaded with paint from Delhi, the truck was stopped but the truck was empty and accused had already sold out the paint and all the accused persons were in the truck.
10. PW8 Ct. Deepak accompanied the Investigating Officer at the time of arrest of accused Rajjuddin. PW9 Inspector Ajay Kumar Singh who is the Investigating Officer of this case inter alia deposed that investigation of this case was handed over to him on 14.06.08 and he prepared the site plan Ex. PW9/A on the pointing out of complainant. PW9 Inspector Ajay Kumar Singh further deposed that on 02.07.08, he received information vide DD No. 15B from PS Etmaddoula District Agra to the effect that four accused persons had been arrested along with looted truck FIR No. 302/08 9/19 St. Vs. Sunil Kumar Singh & Ors.
involved in this case, PW9 Inspector Ajay Kumar Singh got issued production warrants against accused persons from the concerned Court in Delhi, on 08.07.08, accused Sunil Kumar Singh, Pratibhan Shikarwar, Jitender @ Jitu and one Khem Singh (later on declared JCL) were produced in the Court and with the permission of the Court, accused Sunil Kumar Singh, Pratibhan and Jitender @ Jitu were arrested and their disclosure statements were recorded. PW9 Inspector Ajay Kumar Singh further deposed that accused Rajjuddin @ Raja was arrested on 13.07.08 on the pointing out of accused Jitu from Bandh Road, Sangam Vihar and he made disclosure statement Ex. PW8/B wherein he disclosed that he can get recovered the paint which was robbed from the truck from the godown of his brother at Faridabad. PW9 Inspector Ajay Kumar Singh further deposed that on 14.07.08, accused Rajjuddin was produced in the Court and he moved an application for conducting the TIP of accused Rajjuddin, however, accused Rajjuddin refused to participate in TIP. PW9 Inspector Ajay Kumar Singh further deposed on 14.07.08, accused Rajjuddin took police party to the godown of his brother at Faridabad and got recovered 10 canes/buckets of 20 liter each of ICL Acrolic Distemper, all the 10 buckets were taken into possession vide seizure memo Ex. PW1/I. PW9 Inspector Ajay Kumar Singh FIR No. 302/08 10/19 St. Vs. Sunil Kumar Singh & Ors.
further deposed that he searched for other accused persons and the remaining case property but he could not trace those persons as their parentage and addresses were not available.
11. I have heard learned Additional Public Prosecutor for the State as well as learned counsel for accused persons and carefully considered the rival submissions. A careful reading of the deposition of PW2 Shiv Pujan and his statements given to police would show that there is great variation between his deposition in the Court and his police statement. PW2 Shiv Pujan nowhere mentioned in his police statement that occupants of Maruti van kept him in the vehicle for about 1 - 1 ½ hour and had tied his hands at the back and also tied his legs. PW2 Shiv Pujan has also not stated in his police statement that he somehow managed to untie his legs and went to tanker parked nearby, woke up the driver of the tanker and thereafter, moved towards the Police Station and in the way, he met a person who made call to his employer. Similarly, PW2 Shiv Pujan has also not stated in his statement given to the police that the person who had helped him received call from PS Mehrauli to the effect that the help would be reaching soon and his employer reached there at about 45 am and then they went to PS Mehrauli. In other words, there is major improvement in the testimony of PW2 Shiv Pujan over his police statement. In FIR No. 302/08 11/19 St. Vs. Sunil Kumar Singh & Ors.
his police statement, PW2 Shiv Pujan told that total number of persons involved in the incident were eight while in his deposition before the Court, he deposed that total six persons were involved in the incident. PW2 Shiv Pujan has not explained as to why he has not stated all these facts to police nor has PW2 Shiv Pujan come out with the plea that police has not recorded his statement correctly. Therefore, it will be risky to rely on the deposition of PW2 when there are so many improvements therein. In view of the aforesaid variations and improvements, it will not be safe to rely on the testimony of PW2 Shiv Pujan to convict accused persons.
12. The next important point to be noted in this case is that no investigation was conducted nor any evidence was led to prove the quantity of goods loaded in the truck at the time when it was robbed. PW2 Shiv Pujan in cross examination deposed that consignor gave him three copies of consignment note when goods were loaded in the truck and that consignment note was not shown to police officials as the document had been taken away with the vehicle. PW2 Shiv Pujan further deposed in cross examination that when he started the truck loaded with the goods, he was given invoices of goods transport builty and sales tax form and when the truck was looted, these aforesaid papers remained in the truck. FIR No. 302/08 12/19 St. Vs. Sunil Kumar Singh & Ors.
Investigating Officer deposed in cross examination that he did not check whether papers of the truck were in the truck or not. Investigating Officer made no effort to trace or find out these vital documents which could have been thrown some light on the quantity of goods loaded on the truck. PW4 Surender Chaudhary who is the owner of the truck as well as employer of complainant deposed in cross examination that police never demanded any document like builty i.e, bill of transport, invoice or road certificate. This is a vital lapse on the part of Investigating Officer.
13. The proper procedure was not followed by the Investigating Officer in getting the accused persons identified by complainant/PW2 Shiv Pujan. It has come in cross examination of PW9 Inspector Ajay Kumar Singh (Investigating Officer) that three of accused persons namely Sunil Kumar, Pratibhan and Jitu were produced by Agra Police in unmuffled face in the Court on 08.07.08 and he was aware that application of complainant for release of case property on supardari was also listed on 08.07.08. PW9 Inspector Ajay Kumar Singh further deposed in cross examination that he was also aware that complainant will also be present in the Court in connection with his application for supardari. PW9 Inspector Ajay Kumar Singh further deposed in cross examination that complainant/informant Shiv Pujan was FIR No. 302/08 13/19 St. Vs. Sunil Kumar Singh & Ors.
present in the concerned Court when he obtained the custody of accused persons from the Court. Investigating Officer made no request to the concerned Court while obtaining production warrants against accused that Agra Police be directed to produce the accused with muffled faces. It is mentioned in the charge sheet that three accused persons were identified by PW2 Shiv Pujan in the Court. The proper course for the Investigating Officer was to ensure that accused persons are produced with muffled face in the Court and thereafter, complainant is asked to identify them in test identification parade conducted before Metropolitan Magistrate. However, no such steps were taken by the Investigating Officer. Hence, accused persons were not properly identified by PW2 Shiv Pujan.
14. Accused Rajjuddin refused to participate in test identification parade proceeding on the ground that he was shown to the complainant in Police Station. The justification given by accused Rajjuddin for not participating in test identification parade cannot be brushed aside keeping in view the conduct of the Investigating Officer in getting accused persons identified in the Court.
15. The Investigating Officer in cross examination deposed that complainant Shiv Pujan has given description of accused persons in his complaint but he has not recorded the description of accused FIR No. 302/08 14/19 St. Vs. Sunil Kumar Singh & Ors.
persons in writing given by PW Shiv Pujan. PW9 Inspector Ajay Kumar Singh volunteered to deposed that he get prepared portraits of accused persons on the basis of description given by complainant Shiv Pujan. However, there is no mention of any portrait of accused persons being prepared by the Investigating officer in the entire charge sheet.
16. In any case, complainant has not given any description of person who looted the truck in his complaint and therefore, refusal of accused Rajjuddin to not participate in test identification parade proceeding is of no consequence.
17. It has come in the evidence that looted truck was recovered by police officials of PS Etmaddoula District Agra and was seized by PW1 HC Kanwar Singh from PS Vasant Kunj and was brought to Delhi. It was incumbent upon the Investigating Officer to make complainant Shiv Pujan or owner of the said truck as a witness at the time of seizure of truck at PS Etmaddoula District Agra. However, neither PW2 Shiv Pujan nor owner of truck i.e, PW4 Surender Chaudhary, was made witness in the seizure memo Ex. PW1/A of truck. Hence, even the seizure of truck at PS Etmaddoula District Agra becomes seriously doubtful in the absence of any independent witness.
18. PW9/Investigating Officer Inspector Ajay Kumar Singh also FIR No. 302/08 15/19 St. Vs. Sunil Kumar Singh & Ors.
deposed in cross examination that he has not annexed any memo or document showing that he has flashed message to all police circles about the truck being looted. This shows that investigation was not conducted in an effective manner. Even there is no document to show that the truck after it was brought from Agra, was deposited in the malkhana of PS Vasant Kunj nor there is any statement of concerned MHC(M).
19. There are other various lacunae and loopholes in the entire prosecution story. The person from whose mobile phone, PW2 Shiv Pujan made call to his employer after the truck was looted was neither examined by the Investigating Officer nor cited as a witness. Officials from ICL Acrolic Distemper who is the owner of the goods that were loaded in the truck were examined. At least they could have cleared the air about the quantity of goods loaded in the truck. The said persons were vital link in the entire chain of circumstance and his omission from the list of witnesses weaken the case of prosecution.
20. Accused Rajjuddin has been implicated in this case on the premise that 10 buckets of paint which were loaded on the truck were got recovered by accused Rajjuddin from the godown of his brother at Faridabad. The Investigating Officer collected no material nor any evidence was led in the Court to connect the FIR No. 302/08 16/19 St. Vs. Sunil Kumar Singh & Ors.
aforesaid 10 buckets of paint recovered pursuant to the disclosure statement of accused Rajjuddin with the goods loaded on the truck. Infact PW1 HC Kanwar Singh in cross examination deposed that 10 buckets of paint which were recovered pursuant to disclosure statement of accused Rajjuddin were connected with the present case. In other words, there is no evidence or material to connect those 10 buckets of paint with total goods loaded on the truck.
21. PW7 SI Santosh Kumar deposed that accused Jitender, Pratibhan, Sunil and Khem Singh were found in possession of robbed truck and they were also found in possession of 10 buckets of paint. This part of the deposition of PW7 SI Santosh Kumar is patently wrong as 10 buckets of paint, as per the investigation, have been recovered pursuant to the disclosure statement of accused Rajjuddin. Therefore, PW7 SI Santosh Kumar deposed falsely on material aspect of the case. PW7 SI Santosh Kumar deposed about the disclosure of accused Rajjuddin to the effect that he has sold the paint in Neb Sarai. Accused Rajjuddin was not arrested by the police officials of Police Station Etmaddoula District Agra. One fails to understand as to how PW7 SI Santosh Kumar came to know about the disclosure statement of accused Rajjuddin.
FIR No. 302/08 17/19 St. Vs. Sunil Kumar Singh & Ors.
22. Prosecution has not proved as to who is the owner of go down from where 10 buckets of paint are shown to have been recovered pursuant to the disclosure statement of accused Rajjuddin. Brother of accused Rajjuddin who has been shown as the owner of godown was neither made witness nor accused in this case. It was also not proved as to who was in effective control of the godown.
23. Prosecution has also failed to prove that complainant was on duty as driver of truck at the relevant time. No duty roster of complainant or any other document to this effect has been placed on record to show that PW2 Shiv Pujan was deployed on truck bearing no. DL1LK 1565 by the owner of the said truck.
24. As per the prosecution version the information of the robbery of the truck was forwarded to the police within 11/2 hours. The concerned police officials at the Police station Mehrauli did not convey this information to all the check posts in Delhi or in surrounding area so that robbed truck can be intercepted at the earliest. It shows that investigation in this case was not quick and effective.
25. It has come in the evidence that apart from the paints other goods viz. television, telephones were loaded in the truck. IO made no efforts to recover these goods. Infact IO has not stated in FIR No. 302/08 18/19 St. Vs. Sunil Kumar Singh & Ors.
the entire charge sheet as to whether he took any steps for finding or tracing the aforesaid goods which were loaded in the truck.
26. It is clear from the above discussion that there are various lacunae and loopholes in the entire prosecution story. In other words, prosecution has failed to prove the charge u/s. 395/412 IPC against accused persons beyond reasonable doubt. Accordingly, accused Sushil Kumar Singh, Pratibhan Sikarwar, Jitu @ Jitender and Rajjuddin, are acquitted of the charge framed against them. Bail bonds furnished by accused persons earlier are cancelled. Their sureties are discharged. Original document, if any, of surety, be returned.
27. Accused persons seeks time to furnish bail bond and surety bond in terms of section 437A Cr.PC. Accused persons are directed to appear before this Court on 06.04.15 and furnish their personal bond in the sum of Rs. 20,000/ each with one surety of the like amount to the satisfaction of this Court for a period of six months for their appearance before Hon'ble High Court in event the State wishes to file the appeal challenging the present judgment.
Announced in open Court (Sandeep Yadav)
on 01.04.15 Additional Sessions Judge5 (South)
Saket Courts, New Delhi
FIR No. 302/08 19/19
St. Vs. Sunil Kumar Singh & Ors.