Delhi District Court
State vs . 1) Dinesh on 28 January, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST) : ROHINI COURTS: DELHI
Sessions Case No. 163/2013
Unique Case ID: 02404R0217372013
State Vs. 1) Dinesh
S/o Sh. Bijender Singh
R/o H. No. 843, Panna Satghara
VPO : Karala, Delhi.
(Acquitted)
2) Sachin @ Monu
S/o Sh. Rajbir Singh
R/o H. No. 954, Panna Satghara
VPO : Karala, Delhi.
(Acquitted)
FIR No. : 184/2013
Police Station : Begumpur
Under Section : 386/387/397/392/506/34 Indian Penal Code
Date of Institution in Sessions Court : 06.09.2013
Date when judgment reserved : 28.01.2014
Date when judgment pronounced : 28.01.2014
JUDGMENT (ORAL)
BRIEF FACTS:
(1) The case of the prosecution in brief is that on 01.06.2013 to 03.06.2013 from 3:00 PM to 4:00 PM at C2/10, Rama Vihar, Delhi, the State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.1 of 39 accused Dinesh and Sachin in furtherance of a common intention put the complainant Laxman Dass, his nephew Ravi Kumar and his son Nishant, in fear of his death while committing extortion of Rs.70,000/.
It is also alleged that on the above said date time and place, the accused persons again attempted to commit extortion to the complainant, his nephew and son named above putting them in fear of death or grievous hurt and put them to hand over Rs.50 lac in cash to them (accused) on 03.06.2013.
(2) Alternatively, it is alleged that on 01.06.2013 to 03.06.2013 from 3:00 PM to 4:00 PM at C2/10, Rama Vihar, Delhi, the accused Dinesh and Sachin in furtherance of a common intention committed robbery to the tune of Rs.70,000/ from the complainant and at that time the accused persons used deadly weapon i.e. pistol. It is also alleged that on the above said date, time and place, both the accused in furtherance of a common intention threatened to kill the complainant Laxman Dass, his nephew Ravi Kumar and his son Nishant, if their demand of Rs.50 lac is not fulfilled upto 3.6.2013 and if the matter was reported to the police.
CASE OF THE PROSECUTION IN BRIEF:
(3) The case of prosecution in brief is that on 4.6.2013 the complainant Laxman Dass came at Police Station and made his State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.2 of 39 statement wherein he has stated that he was running a Hardware Shop by the name and style of Shakti Store at C2/10, Rama Vihar Delhi, for about eight years. He further stated that on 1.6.2013 as usual, he, his nephew Ravi Kumar and son Nishant were sitting in the shop and at about 3:00 to 4:00 PM two boys aged between 3035 years one of whom disclosed his name as Dinesh Karala, came at his shop asked for money or else they would kill them and thereafter Dinesh Karala took out a pistol and put the same on his chest and told him to give Rs. one lac immediately while the other one put a pistil on the chest of Ravi Kumar and threatened to kill them. The complainant further told the police that being scared, they handed over Rs.60 to 70 thousand to Dinesh Karala who while leaving the shop again threatened him that by 3.6.2013 at 2:00 PM he (complainant) should given him Rs.50 lacs if he want his son Nishant alive and also threatened him not to inform the police about it or else they would kill them and thereafter they went away in a Swift Maruti Car in which two boys were already sitting.
The complainant Laxman Dass further informed the police that thereafter on 3.6.2013 at about 12:50 PM his nephew Ravi received a call on his mobile no. 9811925748 from phone no. 9250645782 and the caller disclosed his name as Dinesh Karala who demanded Rs.50 lacs but Ravi refused to give on which the caller again threatened them. State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.3 of 39 (4) On the basis of the statement made by Laxman Dass, a rukka was prepared and FIR was registered. During investigations, the accused persons were arrested and after completing the investigations the charge sheet was filed in the court.
CHARGE:
(5) Charge under Sections 386/387/34 IPC; alternatively under Section 392/397/34 IPC and under Section 506/34 IPC were settled against both the accused namely Dinesh and Sachin to which they pleaded not guilty and claimed trial.
EVIDENCE:
(6) In order to prove its case the prosecution has examined as many as Fifteen Witnesses as under :
Public Witness:
(7) PW5 Laxman Dass is the complainant. He has deposed that on 1.6.2013 he was sitting at his shop as per routine and in between 3 to
4.00 pm, two persons came at his shop, out of them one was wearing pant and shirt and another was wearing kurta pyjama and was bald headed and one of them was in muffled face and only his eyes were visible. According to the witness the person who was wearing kurta State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.4 of 39 pyjama exhorted " Mujhe kharcha pani do" on which he (witness) asked "Kis baat ka" then he (assailant) took a pistol and pointed on his chest and also exhorted "mujhe janta nahi mera naam Dinesh Karala hai". The witness has explained that at that time he used to run the hardware shop under the name of Shakti Store at C2, Rama Vihar, Delhi and is his nephew who was also present there at that time resisted and asked for what purpose he had to pay on which the person who was wearing kurta pyjama told "ek lakh rupee abhi ke abhi do". According to the witness the person who was wearing pant and shirt put pistol on his nephew Ravi Kumar and thereafter his (witness) condition became deteriorated as he is patient of blood pressure and of depression and due to fear of accused he panicked and handed over Rs.70,000/ to the assailants which he was having at that time. The witness has deposed that thereafter both the persons exhorted "3.6.2013 tak Rs.50 lakh humey de dena" after which the person who was in muffled face threatened "agar kisiko bataya to hum tumhe jaan se maar denge, agar apne bete ko jinda dekhna chahte ho to chup rehna". The witness has deposed that after taking the robbed amount the assailants went out from the shop and they walked at a some distance from his shop and sat in a white swift car wherein on the rear seat two other persons were also sitting and they fled away and thereafter,due to fear, his nephew Ravi State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.5 of 39 and his son Nishant took him to the house due to his deteriorating condition.
(8) The witness has deposed that on 3.6.2013, his nephew Ravi Kumar received a telephone call on his mobile from the person who disclosed his name as Dinesh Karala, had demanded Rs.50 lakhs from Ravi but Ravi told him that they were not in a position to hand over Rs. 50 lakhs and shows their inability to hand over the same and exhorted "jahan tak bhag sakte ho bhag lo, tumhe chhodenge nahi. According to the witness thereafter on taking courage, he went to Police Station Begumpur and reported the matter to the police where his statement was recorded which is Ex.PW5/A bearing his signatures at point A. (9) The witness has further deposed that on 14.6.2013 he was called by IO who asked him for the collection of Rs.70,000/ which he had handed over to the assailants out of which Rs.29,000/ in cash was already with him in his cash box and remaining was the sale consideration of the day. According to the witness, he handed over the copy of bills to the IO which are Ex.PW5/B and Ex.PW5/C and also made statement in this regard which is Ex.PW5/D. Witness has deposed that the mobile number of his nephew Ravi Kumar on which he had received the call from Dinesh Karala is 9811925748. He has further stated that the number from which the caller had made the call State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.6 of 39 started from 92 but the complete number he does not remember. (10) The witness has stated that he could identify those persons if shown to him. When the witness was asked to inform whether the said persons were present in the court, the witness after seeing the various persons present in the court, stated that said persons are not present in the court. Thereafter, Ld. Addl. PP for the State with permission of the court specifically put the accused Dinesh and Sachin to the witness but the witness failed to identify the accused Dinesh and Sachin by saying that they were not those persons who had come to his shop.
(11) In his cross examination by Ld. Addl. PP for the State, the witness has denied that as he had been threatened by the accused persons therefore he is deliberately not identifying the accused persons in the court or that he is deposing falsely on the point of identity of accused persons. He has also denied that the accused Sachin was in muffled face at the time of incident or that the accused Dinesh was bald at that time. The witness has further denied that both the accused persons put the pistol on his chest and on his nephew Ravi. He has also denied that he intentionally concealing on this material aspect due to fear of accused. This witness has in fact turned hostile on the identity of both the accused.
State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.7 of 39 (12) This witness has not been crossexamined on behalf of the accused despite opportunity in this regard.
(13) PW8 Ravi Kumar has deposed that on 1.6.2013 he was sitting at the hardware shop of his chacha Laxman Dass as per routine at C2/10 Rama Vihar which was in the name & style of Shakti Store. According to him, in between 3 to 4.00 pm, two persons came at the shop, out of them, one was wearing pant and shirt and another was wearing kurta pyjama and he was bald and one of them was in muffled face and only his eyes were visible. The witness has deposed that the person who was wearing kurta pyjama exhorted them "Mujhe kharcha pani do". According to the witness his chacha asked "Kis baat ka"
then he took out a pistol and pointed on his chest and also exhorted to my uncle "mujhe jante nahi mera naam Dinesh Karala hai". The witness has deposed that when his uncle resisted for what purpose he had to pay, then the person who was wearing kurta pyjama told them "1 lakh rupee abhi ke abhi do". The witness has deposed that the person who was wearing pant and shirt put pistol on him and thereafter, condition of his uncle became deteriorated being patient of blood pressure and of depression. The witness has further deposed that due to his said condition and fear of accused, his uncle handed over Rs. 70,000/ at that time to those persons. According to the witness State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.8 of 39 thereafter, both the persons exhorted " 3.6.2013 tak Rs.50 lakh humey de dena" after which the person who was in muffled face threatened him uncle "agar kisiko bataya to hum tumhe jaan se maar denge, agar apne bete ko jinda dekhna chahte ho to chup rehna". The witness has deposed that thereafter, after taking the robbed amount they went out from their shop and they walked at a some distance from the shop and sat in a white swift car wherein on the rear seat two other persons were also sitting and they fled away. According to the witness thereafter, due to fear, he and his cousin Nishant took his uncle to his house due to his deteriorating condition.
(14) The witness has deposed that on 3.6.2013, he received a telephone call on his mobile No. 9811925748 from the person who disclosed his name as Dinesh Karala, had demanded Rs.50 lakhs from them but he told him that they are not in a position to hand over Rs.50 lakhs and showed their inability to hand over the same and the caller exhorted "jahan tak bhag sakte ho bhag lo, tumhe chhodenge nahi. The witness has deposed that he received the said call from mobile number 9250645782 which he informed to his uncle. The witness has further deposed that thereafter, on gathering courage, his uncle went to Police Station Begumpur and lodged the complaint against those persons. State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.9 of 39 (15) The witness has stated that he can identify those persons.
Thereafter the witness has been asked to inform whether the said persons are present in the court but after seeing the various persons present in the court, on which the witness stated that said persons are not present in the court.
(16) Leading questions were put by Ld. Addl. PP for the State to the witness wherein the accused Dinesh and Sachin were specifically pointed out and shown to the witness, but the witnesses have failed to identify the accused Dinesh and Sachin by saying that they are not those persons who had come to the shop of his uncle on the day of incident.
(17) In his cross examination by Ld. Addl. PP for the State the witness has admitted that he was interrogated by the police. He further admits that on 3.6.2013, he received a telephone call from mobile no. 9250645782 and the caller told his name as Dinesh Karala. He has denied that as he had been threatened by the accused persons therefore he has deliberately not identified the accused persons in the court or that he is deposing falsely on the point of identity of accused persons. He has further denied that the accused Sachin was in muffled face at the time of incident or that the accused Dinesh was bald at that time. He has also denied that both the accused persons put the pistol on his chest State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.10 of 39 and on the chest of his uncle or that he was intentionally concealing on this material aspect due to fear of accused.
(18) He has not been crossexamined on behalf of the accused despite opportunity in this regard.
(19) PW9 Ajay Kumar has deposed that he is residing at the given address along with his family and is running a paint and hardware shop at A13/A, Main road, Budh Vihar. The witness has deposed that the Mobile Number 9811925748 is his SIM alloted on his name of Vodafone and he had given the same to his brother Ravi Kumar for use. According to the witness, he is using the said number for the last 78 years and even on 03.06.2013 his brother Ravi Kumar was using the said number.
(20) He has not been crossexamined on behalf of the accused despite opportunity in this regard.
(21) PW10 Deepak Mathur has deposed that he is residing at the given address along with his family and he is doing the business of property dealing business which he is running from shop No. E12, Shiv Vihar, Karala. According to the witness, the Mobile Number 9212278040 is on his name of TATA Teleservices Ltd. but he had given the same to his employee Anchil, who is using the same for the last few months ever since he had taken this number. The witness has State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.11 of 39 deposed that in the month of June, 2013 Anchil was using this number and he had informed the police about the same who had recorded his statement. According to the witness he is personally using mobile Number 9212404467.
(22) He has not been crossexamined on behalf of the accused despite opportunity in this regard.
(23) PW11 Anchil has deposed that he is residing at the given address along with his family and he is into property dealing business along with Deepak Mathur which he is running from shop No. E12, Shiv Vihar, Karala, Delhi for the last 1 ½ years. According to the witness, he is using mobile Number 8447362364 and also 9212278040. He has deposed that the mobile number 9212278040 is in the name of Deepak Mathur and on 03.06.2013 he was using this number which is now closed. According to the witness, the accused Sachin @ Monu is his real brother. He has deposed that the police had made inquiries from him regarding mobile number 9250645782 but he had told them that he had not made any call to the said number. On court question, the witness has explained that when he used to sit in the shop somebody had must have made a call from his number on this number but he cannot tell the details.
State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.12 of 39 (24) He has not been crossexamined on behalf of the accused despite opportunity in this regard.
(25) PW12 Pardeep Yadav has deposed that he is residing at the given address along with his family and he is a driver by profession and used to ply an RTV which he take on rent and was also using mobile Number 9213764595. He has deposed that he was using this mobile phone for about 1½ months but now he had stopped using the same. Witness has deposed that the Delhi police had made inquiries from him in the month of July, 2013. According to him the police had made inquiries from him in respect of mobile number 9250645782 and he told them that he did not know as he was receiving large number of calls.
(26) In leading questions put to the witness by Ld. APP for the State, the witness has deposed that he knew Sachin (correctly identified) who is also residing in village Karala. Witness has denied that he had told the police that number 9250645782 was being used by Sachin and he used to call him up from the same. According to the witness, Dinesh S/o Late Sh. Bijender Singh R/o village Karala is also his friend. Witness has denied that the accused Dinesh (correctly identified) also make frequent call to him from his mobile. He has denied that he has been won over by the accused Sachin and Dinesh State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.13 of 39 who are both residents of his village i.e. Karala and who are his closed friends and it is for this reason that in order to save them he is denying the user of the mobile phone by the accused Sachin and Dinesh. (27) He has not been crossexamined on behalf of the accused despite opportunity in this regard.
(28) PW13 Nishant has deposed that on 1.6.2013, he was present inside the hardware shop of his father Laxman Dass at C2/10 Rama Vihar which was in the name & style of Shakti Store. According to the witness in between 3.00 to 4.00 pm, two persons came to the shop, out of them, one was wearing pant and shirt and another was wearing kurta pyjama and he was bald and one of them was in muffled face and only his eyes were visible. The witness has deposed that the person who was wearing kurta pyjama exhorted them "Mujhe kharcha pani do". According to the witness his father asked "Kis baat ka" then he took out a pistol and pointed on his chest and also exhorted to his father "mujhe jante nahi mera naam Dinesh Karala hai". The witness has deposed that when his father resisted for what purpose he had to pay, then the person who was wearing kurta pyjama told them "One lakh rupees abhi ke abhi do". According to the witness the person who was wearing pant and shirt put pistol on Ravi and thereafter, condition of his father deteriorated being patient of blood pressure and State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.14 of 39 depression. The witness has deposed that due to his said condition and fear of accused, his father handed over Rs.70,000/ at that time to those persons and thereafter, both the persons exhorted "3.6.2013 tak Rs.50 lakh humey de dena" after which the person who was in muffled face threatened his father "agar kisiko bataya to hum tumhe jaan se maar denge, agar apne bete ko jinda dekhna chahte ho to chup rehna". According to the witness, after taking the robbed amount they went out from their shop and they walked at a some distance from the shop and sat in a white swift car wherein on the rear seat two other persons were also sitting and they fled away and thereafter, due to fear, he and his cousin Ravi took his father to their house due to his worsening condition.
(29) The witness has deposed that on 3.6.2013, his cousin Ravi received a telephone call on his mobile No. 9811925748 from the person who disclosed his name as Dinesh Karala, had demanded Rs.50 lakhs from them but he told him that they were not in a position to hand over Rs.50 lakhs and shows their inability to hand over the same and the caller exhorted "jahan tak bhag sakte ho bhag lo, tumhe chhodenge nahi. According to the witness thereafter, on taking courage, his father went to Police Station Begumpur and lodged the complaint against those persons.
State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.15 of 39 (30) The witness has stated that he could identify those persons. The witness has been asked to inform whether the said persons were present in the court and after seeing the various persons present in the court, witness states that said persons are not present in the court. The accused Dinesh and Sachin were specifically pointed out and shown to the witness, but the witness has failed to identify the accused Dinesh and Sachin by saying that they are not those persons who had come to their shop on the day of incident.
(31) In his crossexamination by Ld. Addl. PP for the State, the witness has admitted that he was interrogated by the police and that on 3.6.2013, he received a telephone call from mobile no. 9250645782 and the caller gave his name as Dinesh Karala. The witness has denied that as he has been threatened by the accused persons on account of which he was deliberately not identifying the accused persons in the court or that he is deposing falsely on the point of identity of accused persons. He has further denied that the accused Sachin was in muffled face at the time of incident or that accused Dinesh was bald at that time. He has further denied that both the accused persons put the pistol on his cousin Ravi and on the chest of his father or that he was intentionally concealing on this material aspect due to fear of accused. He has also denied that he was not inside the inner part of their shop at the time State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.16 of 39 when those persons came to their shop.
(32) In his crossexamination by Ld. Defence Counsel, the witness has stated that he was present at the inner side of his shop at that time when those persons came to their shop and therefore he did not see what had happened there.
Electronic Evidence:
(33) PW6 Rajeev Ranjan has brought the record pertaining to mobile No. 9250645782 which is issued in the name of Mohd. Fahim, S/o Mohd. Yameen, R/o 832/1, Gali Sheesh Mahal, Teliwara, Delhi, copy of which is Ex.PW6/A, copy of voter ID Card in support of residence proof is Ex.PW6/B, call details from the period 01.05.2013 till 25.06.2013 are Ex.PW6/C, cell ID chart is Ex.PW6/D and certificate U/s 65 B of Indian Evidence Act is Ex.PW6/E. (34) This witness has also brought the record pertaining to mobile No. 9212278040 which is issued in the name of Deepak, S/o Ajeet Singh, R/o 185, Koko Bagri MS Model School, Village Karala, Delhi, copy of which is Ex.PW6/F, copy of PAN Card and driving licence in support of residence proof are Ex.PW6/G and Ex.PW6/H respectively.
State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.17 of 39 (35) This witness has also brought the record pertaining to mobile No. 9213765495 which is issued in the name of Seema W/o Rajesh, R/o 1016, P1, Sultanpuri, Delhi, copy of which is Ex.PW6/I, copy of Voter ID Card and driving license in support of residence proof were Ex.PW6/J. This court has observed that the numbers 9212278040 and 9213765495 do not appear have been used and therefore there are no call details for the period demanded by the investigating officer in respect of the said numbers. (36) In his crossexamination by Ld. Defence Counsel, the witness has deposed that their main server is situated at Hyderabad.
According to the witness he has retrieved the call details from his official computer alloted to him from which he has a direct access from the main server. Witness has denied that there is no system of regular power backup in their office resulting into a data loss. He has also denied that the above calls details have been fabricated on the directions and at the instance of the IO.
(37) PW7 Deepak has brought the record pertaining to mobile No. 9811925748 which is issued in the name of Ajay Kumar S/o Sh. S.K. Arora, R/o F24/139, Sector 3, Rohini, Delhi, copy of which is Ex.PW7/A, copy of driving Licence in support of residence proof is Ex.PW7/B, call details from the period 01.05.2013 to 21.05.2013 are State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.18 of 39 Ex.PW7/C, cell ID chart is Ex.PW7/D and the certificate U/s 65 B of Indian Evidence Act is Ex.PW7/E (38) In his cross examination by Ld. Defence Counsel, he witness has deposed that their main server is situated at Pune. According to the witness he has retrieved the call details from his official computer alloted to him from which he has a direct access from the main server. The witness has denied that there is no system of regular power backup in their office resulting into a data loss or that the above calls details have been fabricated on the directions and at the instance of the IO.
Police / Official Witnesses:
(39) PW1 HC Manoj Kumar has tendered his examinationin chief by way of affidavit which is Ex.PW1/1 wherein he has relied upon the DD No. 25A copy of which is Ex.PW1/A, copy of FIR which is Ex.PW1/B and endorsement on rukka which is Ex.PW1/C. (40) In his crossexamination by Ld. Defence Counsel, the witness has deposed that he entrusted the investigations of the present case to SI Mahavir Parshad at about 6 PM on 04.06.2013. He has deposed that he received the tehrir at about 5:30 PM on the same day as the complainant himself had come to the police station and lodged a State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.19 of 39 complaint. He has also deposed that he sent copies of the FIR through daily procedure to senior officers through dak in the morning of the next day i.e. 05.06.2013 at 2 AM. According to the witness he was on duty till 12 midnight on 04.06.2013.
(41) PW2 HC Ram Kumar has tendered his examinationin chief by way of affidavit which is Ex.PW2/1 wherein he has relied upon entry in register No. 21 vide RC No. 175/21/13 of PS Vijay Vihar , copy of which is Ex.PW2/A, entry in register No. 19 vide Mud No. 401/13, copy of which is Ex.PW2/B. (42) In his crossexamination by Ld. Defence Counsel, the witness has deposed that the case property was deposited with him at about 12 noon on 26.06.2013 by Ct. Jitender. He has deposed that he did not obtain the signatures of the depositor of the case property in register No. 19. The witness has denied that he entered the false entry in the register at the instance of the investigating officer just to help the investigation of the present case.
(43) PW3 Ct. Ajit Singh has tendered his examinationinchief by way of affidavit which is Ex.PW3/1 wherein he has relied upon arrest memo of accused Dinesh which is Ex.PW3/A, his disclosure statement which is Ex.PW3/B. The witness has also relied upon arrest memo of accused Sachin @ Monu which is Ex.PW3/C his disclosure State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.20 of 39 statement which is Ex.PW3/D. He has further relied upon the pointing out memo at the instance of accused Dinesh which is Ex.PW3/E, ointing out memo at the instance of accused Sachin @ Monu which is Ex.PW3/F, recovery memos in respect of accused Dinesh and accused Sachin @ Monu which are Ex.PW3/G and Ex.PW3/H. (44) In his crossexamination by Ld. Defence Counsel, the witness has deposed that he did not make any departure entry in any register when he accompanied the IO SI Mahavir Parshad. According to the witness the IO took the accused persons to the place of occurrence at about 5:00 PM on 07.06.2013 after obtaining one day PC remand from the court concerned. The witness has deposed that they had taken the accused persons in a car and the accused pointed out the place of occurrence from a distance and they did not go to the shop concerned. According to the witness on the front seat of the car IO was sitting and the accused persons were sitting on the back seat of the said car. Witness is unable to tell the registration number of the said car by which they went to the market. According to the witness he gave statement to the IO on 07.06.2013 and also on 08.06.2013 but he does not remember the time now. He has deposed that he gave the statement to the IO in the police station and signed the documents as required by the IO but he is unable to tell the number of those documents. Witness State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.21 of 39 has denied that the accused persons did not gave any disclosure statements or that the same were written by the IO of his own. The witness has also denied that the accused persons were compelled to sign certain blank papers which were later on converted into various memos.
The witness has deposed that they went to the house of accused persons at about 1:00 PM on 08.06.2013. According to the witness, the IO did not obtained the signatures of any public person at the time of search of houses of the accused persons. He has denied that accused persons did not point out the place of occurrence to the IO or that the same was prepared by the IO of his own. The witness has also denied that he is deposing falsely at the instance of investigating officer being an official witness.
(45) PW4 Ct. Jitender Kumar has tendered his examination in chief by way of affidavit which is Ex.PW4/1 wherein he has relied upon entry in register No. 21 vide RC No. 175/21/13, copy of which is Ex.PW2/A. This witness has not been crossexamined on behalf of the accused despite opportunity in this regard.
(46) PW14 ASI Jagdish Singh has deposed that on 06.06.2013 he was posted in the special staff, Outer district as Head constable and on that day he was present in the office when at about 12 PM (afternoon) the secret informer came and informed him that persons State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.22 of 39 who had indulging into extortion in the Rama Vihar case would be coming in Swift Car of white color bearing No. DL2CAK0163 from the Kanjhawala road and would go towards C Block, Avantika, he shared this information with his senior officer and on the directions of senior officer i.e. Inspector Special staff he constituted a raiding party comprising of himself, SI Ajeet, HC Narender, HC Ashok, Ct. Bijender and Ct. Naveen. According to the witness, he shared the information with the members of the raiding party after which they left the office and reached the T point of Kanjhawla, Avantika road where they requested 45 passerbys / public persons to join the raiding party after sharing the secret information with them but they refused to join the police party. According to the witness, there was no time to give them any notice and therefore without wasting the time they took their positions at the T point Kanjhawla Avantika road by putting the barricading on the said road and Ct. Bijender was positioned on the T point on the road. The witness has deposed that they were checking the vehicles at the barricaders and after about 10 minutes i.e. at around 12:50 PM Ct. Bijender indicating to them towards one white color Swift car coming towards Kanjhawala side on which we indicated the car to stop by putting barricades on the road. The witness has deposed that the secret informer also confirmed the vehicle in which two persons were State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.23 of 39 sitting and he identified them and pointed out towards the Swift car and two boys as the same who were involved in the extortion, whom they were searching. According to the witness the vehicle stopped on their indication and one boy was sitting on the starting and the other was on the adjoining seat and the said boys were asked to come out of the car. The witness has deposed that they made inquiries from the said boys and they disclosed their names as Dinesh and Sachin. According to the witness, the accused Dinesh was the boy who was driving the vehicle and Sachin was the person who was sitting on the adjoining seat. (47) The witness has correctly identified both the accused Dinesh and Sachin by pointing out towards them as well by their names. According to the witness, they carried out the search of both the boys and one mobile was found from the search of Sachin make SAMSUNG of black color with red patti with words TATA INDICOM written on the same. He has deposed that when he carried out the interrogation of both the accused persons, they made their disclosure regarding their involvement in the extortion case of Rama Vihar wherein they had given threats to the owner of the Hardware shop. According to the witness, a Kalandara U/s 41.1 Cr. P.C. was prepared by him and both the accused were arrested in the same. He also conducted their personal search and also recorded their disclosure State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.24 of 39 statements. According to the witness the Swift vehicle and the mobile phone were taken into possession and were seized. He has deposed that the arrest memo of accused Sachin is Ex.PW14/A, his personal search was conducted vide memo Ex.PW14/B and his disclosure statement is Ex.PW14/C. The witness has further deposed that the arrest memo of accused Dinesh is Ex.PW14/D, his personal search memo is Ex.PW14/E and his disclosure statement is Ex.PW14/F. The witness has deposed that the seizure memo of mobile phone make SAMSUNG TATA INDICOM of black color with red patti is Ex.PW14/G and the seizure memo of Swift car of white color bearing No. DL2CAK0163 along with key is Ex.PW14/H and thereafter he prepared a Kalandra in this regard is Ex.PW14/I. (48) The witness has deposed that he then gave the information to the concerned IO at Police Station Begumpur and accused were taken to SGM hospital where they were medically examined, after which he produced them before Duty MM Rohini courts from where they were remanded to Judicial custody. According to the witness the case property were deposited in Police Station Vijay Vihar and after reaching to the Police Station Vijay Vihar he lodged DD No. 65 B dated 06.06.2013 regarding arrest of accused persons, true copy of which is Ex.PW14/J. Witness has explained that he may add here that while State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.25 of 39 leaving the special staff office, he made his departure entry vide DD No. 9 dated 06.06.2013, true copy of the same is Ex.PW14/K. Witness has deposed that on 27.06.2013 his statement was recorded by the concerned IO.
(49) The witness has identified the mobile phone make SAMSUNG TATA INDICOM of black color with red border in open condition having ID No. FCC ID A3LSCHB159 A00000244D4B98 along with SIM bearing No. 9250645782 the same as recovered from the possession of accused Sachin which is Ex.P1. He has also identified the Swift car from the photographs Ex.PW14/L1 to Ex.PW14/L3, CD of the same is Ex.PW14/M. (50) In his cross examination by Ld. Defence Counsel, the witness has deposed that he did did not give the secret information to senior officer in writing and has voluntarily stated that he lodged the DD entry. Witness has denied that both the accused Sachin and Dinesh had lifted from their houses and illegally detained in the office of the special staff and later when the family members complained about their detention in order to legalize the same the entire episode of secret information and arrest from T point Karala, Avantika road was created. The witness has deposed that he did not join any public person in the police party while leaving the office and has voluntarily explained that State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.26 of 39 he tried to join them at the spot only. According to the witness the spot in question is an isolated spot with a park on the one side and another green area / park is on the other side. The witness has deposed that the residential area is away from the park but he did not call anybody from the residential area or from the shops situated there to join the investigations in the case and he has mentioned this fact regarding no joining of public persons in the Kalandara.
(51) According to the witness, it took them two hours to carry out the proceedings. He has deposed that he did not join any public person during this period of two hours nor joined the public persons when the disclosure statements of accused were being recorded. He has denied that he did not join any public person because the accused did not make any disclosure or that he recorded the same of his own only to connect them with this case. He has denied that the mobile Ex.P1 has not been recovered from the accused Sachin or that the same has been planted upon him only to connect him with the case. He has also denied that the actual accused had been let off by him and the case has been planted upon accused Sachin and Dinesh to show the work out of the same. He has further denied that the kalandara and entire proceedings has been falsely made by him only to legalize the illegal detention of Sachin and Dinesh who were lifted from their houses. State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.27 of 39 (52) PW15 SI Mahavir has deposed that on 4.6.2013, he was posted at Police Station Begumpur, Delhi and on that day, complainant Laxman Dass came to Police Station and made his statement Ex.PW5/A and he made endorsement Ex.PW15/A on the same and thereafter he prepared the rukka and got the registered directly. According to the witness, on next day i.e on 5.6.2013, he visited the spot and prepared the site plan at the instance of Laxman Dass. He has further deposed that on 6.6.2013, he received DD No.36A, true copy of same is Ex.PW15/B from Police Station Begumpur that accused Sachin and Dinesh (correctly identified) were arrested under Section 41.1 (b) and Section 102 Cr.PC vide DD No.65B, copy of proceeding of kalandra is Ex.PW14/I by special staff of Outer District. The witness has deposed that on this information, he moved an application before Ilaqua Magistrate with the request of production warrant and pursuant to his request, Ilaqua Magistrate issued the production of accused for 7.6.2013. According to the witness, on 7.6.2013, both the accused were produced before the Ilaqua Magistrate by the concerned authority and with the permission of the court, he formally interrogated both the accused persons and arrested them vide memo Ex.PW3/A and Ex.PW3/C respectively i.e of accused Sachin and Dinesh. The witness has deposed that both the accused persons i.e accused Dinesh and State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.28 of 39 Sachin made their disclosure statements which are Ex.PW3/B and Ex.PW3/D and thereafter, both the accused persons were produced before the court concerned for the purpose of judicial TIP and they were kept in muffled faces. During judicial TIP, both the accused refused to take participate in the TIP. The witness has deposed that thereafter both the accused persons were taken on one day Police Custody Remand and during PC remand, the accused persons, pointed out the place of incident i.e Shop No. C2/10 Rama Vihar and pointing out memo at the instance of both the accused Dinesh and Sachin were prepared same are Ex.PW3/E and Ex.PW3/F. The witness has deposed that during Police Custody Remand, i.e on 8.6.2013, he made efforts to get recover the weapon of offence and the extorted the amount i.e country made pistol but it could not be found and extorted amount and also could not be recovered. The witness has deposed that he made the non recovery memo of weapon and money vide memo Ex.PW3/G and Ex.PW3/H. According to the witness thereafter on 8.6.2013, the complainant Laxman Dass came to Police Station to know the progress of his case and he had identified both the accused persons. The witness has deposed that during investigation, he examined Laxman Dass, Ravi Kumar and Nishant and Ajay Kumar and thereafter he collected the call details of mobile number of Ravi and accused Sachin in and during the State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.29 of 39 call detail, it was found that there was a call on the mobile of Ravi from the mobile of accused Sachin which he was using the number of 9250645782 which was issued in the name of Mohd. Faeem and was of TATA Indocom. He has deposed that he collected the call details of mobile number of Ravi i.e 9811925748 which was found issued in the name of Ajay Kumar who is brother of PW Ravi.
(53) The witness has further deposed that during investigation, he made a detailed interrogation qua mobile no. 9250645782 and it was revealed that it was being used by accused Sachin to establish the use of said phone by accused Sachin as disclosed by Pradeep Yadav. According to the witness during investigation, he also collected the copy of proceedings of Kalandra under Section 41.1 Cr.PC dated 6.6.2013 from the concerned court which are Ex.PW14/I and copy of DD No. 65B dated 6.6.2013 is Ex.PW14/J. The witness has deposed that the DD No. 9 regarding departure dated 6.6.2013 is Ex.PW14/K, arrest memo of accused Sachin is Ex.PW14/A and of Dinesh is Ex.PW14/D, personal search memo of accused Sachin is Ex.PW14/B and of Dinesh is Ex.PW14/E, the seizure memo of Car No. DL2CAR0163 along with key is Ex.PW14/H and copy of disclosure statement of accused Dinesh and Sachin is Ex.PW14/F and State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.30 of 39 Ex.PW14/K. The witness has deposed that during investigation, both the accused were identified by Ravi and Nishant and complainant Laxman Dass handed over him the details of extorted amount. According to the witness during investigation, the Penal Section was changed to Section 387/392 and 397 IPC. He has deposed that during investigation, he recorded the statement of witnesses and prepared charge sheet.
(54) The witness has deposed that he also collected the case property i.e mobile phone from Police Station Vijay Vihar which was recovered by HC Jagdish being used by accused Sachin and also car used by accused Dinesh. The witness has deposed that after completion of charge sheet, he prepared the charge sheet. He has identified the Mobile phone is Ex.P1 and swift car is Ex.P2 which is on superdari and identity of same is not disputed.
(55) In his cross examination, the witness has deposed that he had recorded the statements of public witnesses. He has denied that he had recorded the supplementary statements of witnesses of his own only to work out the present case. He has further denied that the accused Sachin is not the user of mobile phone bearing No. 9250645782. The witness has deposed that when he received the above mobile set recovered from Sachin which is Ex.P1 was not working. He State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.31 of 39 has deposed that he did not open it to find out if there is any SIM in the same. The witness has denied that the mobile phone Ex.P1 was already in their possession and they have planted the same on Sachin to show its recovery from him and connect him with the case. Witness has admitted that he did not obtain the location chart of the user of the mobile phone No. 9250645782 but has denied that he did so deliberately as it would have expose the fact that Sachin was innocent and the actual offender had been shielded and has voluntarily explained that he did not carry out the analysis of location chart as the date of incident was 01.06.2013 whereas the threatening call was received on 03.06.2013.
(56) He is not aware if the complainant in the present case is related to the complainant of the case registered against the accused U/s 307 PS Kanjhawala i.e. FIR No. 15/13 PS Kanjhawala, U/s 307/308/323/452/34 IPC r/w Section 25/27 of Arms Act and therefore at his instance the present case was planted on the accused in connivance of the complainant of the present case. He has denied that the statements of witnesses namely Anchil Thakur, Deepak Mathur, Mohd. Fahim, Pardeep Yadav and Ajay Kumar are written by him of his own just to create an evidence against accused persons. State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.32 of 39 STATEMENT OF THE ACCUSED & DEFENCE EVIDENCE:
(57) After completion of prosecution evidence the statement of the accused were recorded under Section 313 Cr.P.C. wherein all the incriminating evidence was put to them which they have denied. (58) According to the accused Dinesh he has been falsely arrested in the case. He has stated that he did not make any disclosure statement and his signatures were obtained on blank papers. He has further stated that the car bearing No. DL2CAK0163 belongs to him and he had been falsely taken into custody by the police just to assist the prosecution case and falsely implicated him.
(59) According to the accused Sachin he has been falsely arrested in the case. He has stated that he did not make any disclosure statement and his signatures were obtained on blank papers. He has further stated that his brother Anchil is working with Deepak Mathur but he is not aware if the above number is being used by him or not.
According to the accused, the said mobile has been planted on him by the police and the proceedings of this case have been manipulated. He has stated that nothing was recovered at his instance or from his possession. According to him his signatures were obtained forcibly on blank papers which were later on converted into various memos including his disclosure statement.
State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.33 of 39 FINDINGS:
(60) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the the evidence on record. My findings are as under. (61) At the very outset I may observe that the start witnesses of the prosecution i.e. complainant / Laxman Dass (PW5) and the alleged eye witnesses Ravi Kumar (PW8) and Nishant (PW13) have turned hostile on the identity of the accused Dinesh and Sachin stating that they are not the persons who had come to the shop and extorted money.
They have in their testimonies supported their earlier versions in so far as the incident is concerned, but not on the identity of the accused. (62) Secondly the only other evidence on record is the electronic evidence. Ravi Kumar (PW8) is the brother of Ajay Kumar (PW9) and they have proved that the phone number which was being used by Ravi i.e. 9811925748 was in the name of Ajay (PW9) showing that actually it was Ravi who was the user of the same and this fact stands established from the testimonies of witnesses of the service provides Rajeev Ranjan (PW6) and Deepak (PW7).
(63) In so far as the phone number from which the alleged threatening call was received i.e. 9250645782, it is in the name of one Mohd. Fahim (as proved by PW6 Rajeev Ranjan). Further, the mobile State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.34 of 39 number 9212278040 is in the name of Deepak who is a property dealer by profession and has proved that his employee Anchil (PW11) was using the said number. Witness Anchil who is the real brother of accused Sachin has stated that police had made inquiries from him regarding mobile number 9250645782 but he had told them that he had not made any call to the said number. Further, Pardeep Yadav (PW12) has also turned hostile with regard to the user of mobile number 9250645782 and has denied that the accused Sachin was using this number and used to call him up from the said number. (64) In view of the above, it does not stand conclusively proved that the call from phone number 9250645782 had been made by the accused Sachin.
(65) Thirdly, it is also the case of the prosecution that the person who was using the said phone number was the accused Dinesh who while making the call had disclosed his name as Dinesh which fact has not been proved beyond reasonable doubt as all the witnesses have turned hostile on the identity of Dinesh. It therefore cannot be conclusively established that he was the person who was making calls, more so, it does not appear probable that any person who could indulge into extortionist activities would give his correct name. The possibility of some other person using the name of the accused Dinesh Karala, State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.35 of 39 cannot be ruled out.
(66) Fourthly, pursuant to the arrest, there is no recovery from the accused persons whosoever, to connect them to the incident of robbery.
(67) Lastly, in so far as the allegations of use of Swift car is concerned, it is writ large from the testimony of the victims that at no point of time they claim that they had noted down the number of the said Swift car and they only state that the accused went away in white coloured Swift car. This also is not sufficient to connect the accused with the offence.
(68) In view of the above discussions, I hereby hold that the victims having turned hostile on the identity of both the accused and there being no other evidence either electronic or forensic whatsoever to connect the accused Dinesh and Sachin @ Monu with the alleged offence, benefit of doubt is being given to them.
FINAL CONCLUSIONS:
(69) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.36 of 39
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(70) Applying the above principles of law to the present case it is evident that the the identity of the accused Dinesh and Sachin does not stands established and proved. It does not stands established that mobile number from which the alleged threatening call was received i.e. 9250645782 was either in the name of the accused Dinesh or Sachin. It does not stand established beyond doubt that it was either Dinesh or Sachin who had made the threatening call / extortion calls from mobile number 9250645782 on the mobile number 9811925748. State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.37 of 39 There is no recovery from the accused persons to connect them to the incident of robbery. The fact that the accused went away in a Swift car, also does not stands established and proved as even the number or identity of the said car has not been proved.
(71) In view of the above, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused persons. The materials brought on record by the prosecution is insufficient to hold that the accused persons guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused persons. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a court to see, while finding the guilty of an accused, particularly in cases based on circumstances evidence.
(72) This being the background, I hereby hold that the prosecution having failed to establish and prove the allegations against State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.38 of 39 the accused persons and having failed to bring on record any evidence against them (either ocular or circumstantial or medial or electronic or forensic or any other evidence), to connect them conclusively with the commission of the offence, benefit of doubt is being given to the accused Dinesh and Sachin @ Monu who are hereby acquitted of the charge under 386/387/392/397/506/34 Indian Penal Code. (73) Both the accused are in Judicial Custody. They be released if not required in any other case.
(74) File be consigned to Record Room. Announced in the open Court (Dr. KAMINI LAU) Dated: 28.01.2014 ASJ (NW)II: ROHINI State Vs. Dinesh, FIR No. 184/13, PS Begumpur Page No.39 of 39