Delhi District Court
State vs 1. Bharat Bhushan on 6 August, 2012
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Versus 1. Bharat Bhushan
S/o Sh Harbans Lal
R/o SFS Flat No. 200
Pocket 2, Sector-1
Dwarka, Delhi.
2. Mohd Asif
S/o Sh Mohd Salim
R/o C-456 Navjeevan Camp
Govindpuri, Kalkaji
New Delhi.
3. Mohd Aftab
S/o Sh Mohd Isrile
R/o C-299 Navjeevan Camp
Govindpuri, Kalkaji
New Delhi.
4. Bajrang @ Sandeep
S/o Sh Kishan Lal
R/o B-210 Navjeevan Camp
Govindpuri, Kalkaji
New Delhi.
SC No. 98/07
FIR No. 298/07
U/S: 392/397/34 IPC
PS: Sriniwaspuri
Date of institution : 21.09.2007
AND
State Vs. Mohd Aftab
S/o Sh Mohd Isrile
R/o C-299 Navjeevan Camp
Govindpuri, Kalkaji
New Delhi.
SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
2
SC No. 106/07
FIR No. 312/07
U/S: 25 Arms Act
PS: Sriniwaspuri
Date of institution : 16.10.2007
Date of reserving judgment : 30.07.2012
Date of pronouncement : 06.08.2012
Computer ID Number :02403R0501692007
J U D G M E N T
1. The case FIR No. 298/07 pertains to an armed robbery committed at about 03:00 AM on 11.06.2007, i.e. in the night of 10/11.06.2007 between the Ashram Chowk and the Moolchand Flyover on the Ring Road, New Delhi. The facts of the case as per the chargesheet, in brief, are that the complainant/PW1 Sh Ganesh Bera and one Sh Jadav, who both are the employees of Bikaner Sweets, had boarded a bus from Agra on 10.06.2007 and had reached at the Ashram Chowk at around 03:00 AM on 11.06.2007. After getting down from the bus, they both had turned towards Lajpat Nagar and were waiting for some conveyance when a white colour Qualis Vehicle had reached and stopped there SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
3on being signaled by the complainant/PW1. Besides, the driver of the above vehicle three other persons were sitting in the vehicle and on being asked by the complainant/PW1, they had replied that they were going towards Dhaula Kuan and they had agreed to give lift to the complainant/PW1 and Sh Jadav. One of the two persons sitting on the seat behind the driver's seat had got down from the vehicle and the complainant/PW1 and his above companion were both made to sit between the two persons sitting on that seat as the above person had gone to sit on that seat towards the window/door. One other person was also sitting in the vehicle on the seat behind their seat.
2. When the vehicle had started moving and a flyover had started, one person sitting by the side of the complainant/PW1 had started slapping the complainant/PW1 and had told him that they will have to accompany them. The person sitting on their back seat had taken Sh Jadav on the point of some weapon and had asked both of them to handover their belongings to them. It is alleged that one of them had robbed the complainant/PW1 of a cash amount of Rs. 25000/-, two mobile phones make Nokia having Sim No. 9810786995 & 9871903319, one wrist watch of make Titan, one bag of earth colour, one diary, one register, one shirt, some documents, driving license and ID-Card of the complainant/PW1. One other person had also robbed Sh Jadav of Rs. 2000/- in cash and his wrist watch and they both were made to get down from the vehicle near a bus stand SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
4after crossing the Mool Chand Flyover. They could not note down the number of the above vehicle due to the presence of something on the number plate of the vehicle.
3. On receiving a call about the incident, PW2/HC Surender Singh of PS Lajpat Nagar had arrived there and the statement Ex. PW1/A of the complainant/PW1 was recorded. Since the above instance of robbery had taken place within the jurisdiction of PS S.N. Puri, PW2/HC Surender Singh had taken the complainant/PW1 to PS S.N. Puri where the rukka Ex. PW9/A on his statement was endorsed by the IO/PW9 SI Sunil Kumar and the FIR Ex. PW3/A of this case was registered U/S 392/34 IPC. It is also found recorded in the above statement Ex. PW1/A of the complainant/PW1 that the person driving the above vehicle was having long hair tied with a rubber band and the other three persons were having thin built, dark complexion and small hair and all of them were aged about 25-26 years and he can identify them.
4. During the investigation of the case, the IO/PW9 Inspector Sunil Kumar (SI at the time of incident) had got prepared the portraits of the offenders on 13.06.2007, as per the descriptions given by the complainant/PW1 and Sh Jadav, and the complainant/PW1 had also given one written complaint/statement Ex.PW1/F addressed to the SHO of the above PS wherein it was stated by him that the vehicle used by the offenders in the above incident was not of SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
5make Qualis but the same was of make Tavera and his wrist watch robbed in the above incident was also not of make Titan but the same was of make Tata Sonata. Similarly, one written statement was also given by the above Sh. Jadav regarding the vehicle used in the above incident and also regarding the articles robbed from him.
5. On 15.06.2007, the above four accused persons facing trial in this court were apprehended by the special staff officials of the Delhi Police in a Tavera vehicle No. DL 1YA 6528 on the basis of some secret information and they had disclosed their involvement in this case. On being informed about the same, the IO/PW9 Inspector Sunil Kumar had reached the office of the special staff and had arrested them in this case as on enquiry the involvement of the accused persons in this case was confirmed.
6. It is also alleged that the above Tavera vehicle was the same vehicle which was used by them in commission of the alleged offence of robbery of this case and at the time of his apprehension the accused Bharat Bhushan was also found to be in possession of one mobile phone make Nokia and the above vehicle and mobile phone were seized by the IO/PW9 Inspector Sunil Kumar vide seizure memos Ex. PW4/A and Ex. PW9/B respectively, both dated 15.06.2007. Subsequently, in pursuance of their disclosure statements, the accused Mohd. Asif and Bajrang @ Sandeep had also got recovered one stolen wrist watch each of make Sonata vide SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
6seizure memos Ex. PW7/B and Ex. PW7/C respectively and the accused Mohd. Aftab had also got recovered one stolen mobile phone of make Nokia vide seizure memo Ex. PW7/A and also one country made pistol which was allegedly used in commission of the offence of robbery of this case.
7. It is also alleged in the chargesheet that subsequently all the four accused persons had refused to join the TIP proceedings. However, the complainant/PW1 and Mr. Jadav had both identified their wrist watches in the judicial TIP proceedings. After the recording of the statements of witnesses and the completion of the other formalities of investigation, a chargesheet for commission of the offences punishable U/S 392/397/34 IPC was filed against all the four accused persons. One separate FIR NO. 312/07 against the accused Mohd. Aftab with regarding the above illegal weapon recovered from him was also registered and a separate chargesheet against him was also prepared and filed in the court.
8. The chargesheet in this main case FIR No. 298/07 was filed against the accused persons in the court of the Ld MM concerned on 20.07.2007 and cognizance thereof was taken on the same day. After the compliance of the provisions of Section 207 Cr.PC., the case was committed to the Sessions Court vide order dated 18.09.2007 of the Ld MM concerned. The chargesheet in the connected case FIR No. 312/07 U/S 25 Of the Arms Act was filed against the SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
7accused Mohd. Aftab in the court of the Ld MM concerned on 14.08.2007 and vide subsequent order dated 11.10.2007, the Ld MM had forwarded the same to the Sessions Court for trial thereof along with this main case. Both the above cases were subsequently consolidated for trial vide order dated 11.03.2008 of this court for the purposes of evidence and adjudication.
9. A prima facie case for commission of the offence punishable U/S 392/34 IPC was found to be made out against all the four accused persons and a charge for the said offence was also framed against them by this court on 19.12.2007. A prima facie case for commission of the offences punishable U/S 397 as well as Section 25 of the Arms Act was also found to be made out against the accused Mohd. Aftab regarding the use of a deadly weapon at that time of the commission of the offence of robbery and also regarding the recovery of the above country made pistol from his possession and separate charges for the above said offences were also framed against him by this court on the same day.
10. The prosecution in support of its case has examined on record total 15 witnesses in both the cases and their names and the purpose of examination is being stated herein below:-
11. PW1 Sh Ramesh Bera is the complainant/PW1 of this SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
8case and he has deposed regarding the commission of the offence of robbrey and the manner etc. thereof. His depositions will be discussed and appreciated in detail subsequently.
12. PW2 HC Surender Singh is an official of PS Lajpat Nagar who had only recorded the statement Ex. PW1/A of the complainant/PW1 and had taken him to PS S.N. Puri where the FIR of this case was got registered.
13. PW3 ASI Shiv Kumar is the Duty Officer of this case and he has proved on record the FIR of this case as Ex. PW3/A.
14. PW4 SI Dalip Kumar was posted in the Special Staff of the Distt. South on 15.06.2007 and on the basis of a secret information he had apprehended all the four accused persons on that day at about 09:30 AM from in front of Tara Apartments, in a Tavera car bearing the registration No. DL 1YA 6528 while it was coming from the side of Tuglakabad Extn. On enquiry, the accused persons had disclosed their involvement in this case and hence he had given intimation to the DO of PS S.N. Puri and the IO/PW9 Inspector Sunil Kumar had arrived there. He is also a witness of the arrest memos Ex. PW4/F, Ex. PW4/C, Ex. PW4/B, Ex. PW4/D, personal search memos Ex. PW4/G4, Ex.PW4/G2, Ex. PW4/G1, Ex. PW4/G3 and disclosure statements Ex.PW4/L, Ex.PW4/H, Ex. PW4/J and Ex. PW4/K. He SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
9has further witnessed the seizure memo of the above Tavera vehicle Ex. PW9/B and of the mobile phone recovered from the accused Bharat Bhushan vide memo Ex. PW4/A.
15. PW5 Sh Vijay Pal is the registered owner of the above Tavera car No. DL 1YA 6528 and he has stated that on 10.06.2007, the accused Bharat Bhushan, who was driver on the above vehicle, had informed him that the brakes of the above vehicle had failed and he had directed the accused to get it repaired. He had also stated that he could not contact the accused for few days and the car had also not reached the office of the Dish TV, where it was going on hire basis, and subsequently on 15.06.2007, he came to know that his car was seized in this case by the police and he had subsequently obtained it on superdari vide superdarinama Ex. PW5/A.
16. PW6 HC Gian Chand was posted as MHC(M) on 25.06.2007 and he had only taken the two sealed pullandas of the above wrist watches from the malkhana of PS to the court of Ld MM concerned for TIP proceedings thereof and had brought the same back and deposited in the malkhana.
17. PW7 Ct. Mahender Nagar had participated in the investigation of this case on 15.06.2007 with the IO/PW9 Inspector Sunil Kumar and had gone to the office of the Special Staff of Distt. South and he is a witness of arrest and interrogation of the accused persons and the SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
10documents prepared in connection with the same and has further witnessed the seizure memo of above vehicle Ex. PW 9/B and the seizure memo Ex. PW4/A of the mobile phone recovered from accused Bharat Bhushan at the time of his apprehension. He had also participated in the investigation of this case on 16.06.2007 with the IO/PW9 when the accused Mohd. Aftab had got recovered one stolen mobile phone vide seizure memo Ex. PW7/A, accused Mohd. Asif and Bajrang @ Sandeep had got recovered one stolen wrist watch each of make Sonata vide seizure memos Ex. PW7/B and Ex. PW7/C respectively and the above country made pistol was also got recovered by the accused Mohd. Aftab vide seizure memo Ex. PW7/E. He is a witness of the above documents and also the sketch of the above katta Ex. PW7/D and had further identified the above articles and the accused.
18. PW8 Sh Sanjay Bansal, Ld. ACMM was working as a Link MM to the court of the concerned MM and he had conducted the TIP proceedings Ex. PW1/G dated 22.06.2007 of all the four accused persons in which they had refused to join the proceedings. On 23.06.2007, he had also conducted the TIP proceedings Ex. PW8/A of the above two wrist watches in which the complainant/PW1 Sh Ganesh Bera and Sh Jadav had both identified their respective watches.
19. PW9 Inspector Sunil Kumar is the investigating officer of this case and he has broadly deposed on the SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
11above lines of the prosecution story and has proved on record the various documents prepared by him and has also identified the accused and the exhibits.
20. PW10 Sh Puneet Puri, Senior Scientific Officer of FSL, had examined the above country made pistol Ex. F-1, which was got recovered by the accused Mohd. Aftab, vide his report Ex. PW10/A and had found the same to be a firearm under the Arms Act, 1959.
21. PW11 ASI Mohan Lal is the Duty Officer of this case and he has proved on record the FIR of the case Ex. PW11/A and also his endorsement made on the original rukka as Ex. PW11/B.
22. PW12 HC Om Prakash is the MHC(M) of the above PS and he has deposed regarding the deposit of the case property in the Malkhana and sending of the above parcel of weapon to FSL for analysis and has proved on record the relevant entry no. 206 of the Register no. 19 as Ex. PW12/A, a copy of the RC no.65/21 as Ex.PW12/B and the FSL endorsement in this regard as Ex. PW12/C.
23. PW13 SI Ashok Kumar was posted as SO to Addl. DCP South on 23.08.2007 and he has identified the signatures of the then DCP Sh. Sanjay Kumar on the sanction Ex. PW13/A for the prosecution of accused Mohd. Aftab @ Guddu under the Arms Act.
SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
1224. PW14 SI Gajraj Singh is the IO of the case FIR no. 312/07, under section 25 of the Arms Act and he has deposed about the proceedings conducted and the documents prepared by him in the above said case, i.e. the site plan Ex. PW14/A and arrest memo Ex. PW14/A of the accused in that case. After completing the necessary formalities, he had also prepared and filed the charge sheet of that case.
25. PW15 Ct. Sanjay Kumar had taken the parcel of the above country made pistol to FSL on 25.06.2007 vide the Road Certificate Ex. PW12/B and he had handed over a copy of the above Road Certificate containing the acknowledgment of the receipt thereof to the MHC(M).
26. After the conclusion of the prosecution evidence, the statements of all the four accused persons under section 313 Cr.P.C were recorded by this court and the entire incriminating evidence brought on record by the prosecution was put to them and the same was denied by them to be incorrect. All of them have claimed themselves to be innocent and to have been falsely implicated in this case. However, none of them had chosen to lead any evidence on record in their defence.
27. I have heard the arguments advanced by Sh.R.K. Gujjar, Ld. APP for the State and Sh. A.K. Mishra, Ld. Defence Counsel for all the accused persons and have also SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
13perused the evidence led by the prosecution and the other record of the case.
28. As far as the charge for the offence punishable U/S 392/34 IPC framed against all the four accused persons is concerned, the first thing which the prosecution was required to prove is the identity of the accused persons as robbers. Out of the above two victims of the offence of robbery, the prosecution could only examine on record the complainant/PW1 Sh Ganesh Bera and the other victim, namely, Sh Jadav could not be examined as his presence in this court could not be secured despite giving a number of opportunities to the prosecution for this purpose. He was reported to have already left his given address and in the absence of examination of Sh Jadav on record, it is the complainant/PW1 Sh Ganesh Bera only who could have identified the accused as offenders.
29. However, on appreciation of the statement made by the complainant/PW1, it is found that in his chief examination itself, he has not identified the accused Mohd. Asif and Mohd. Aftab as robbers or offenders because he has specifically stated that out of those four accused persons, two persons, namely, Bharat Bhushan and Bajrang @ Sandeep are present in the court today and the remaining two accused persons present in the court were not present at that time in the vehicle. Even during his cross- examination conducted by Ld Addl. PP for the State, after SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
14the complainant/PW1 was got declared hostile, he had stood firm on his above stand and had denied the suggestions given to him by Ld. Addl. PP for the State that he was deliberately not identifying the accused Mohd. Asif or Mohd. Aftab or that he was won over by them. In the absence of identification of the above two accused by the complainant/PW1 as offenders, the refusal by both of them to join the TIP proceedings, along with the other two accused Bharat Bhushan and Bajrang @ Sandeep, vide Ex. PW8/A cannot establish the identity of the accused Mohd. Aftab and Mohd. Asif as robbers. There is also no other evidence or material on record to establish their identity as robbers. Hence, the charge for the offence punishable U/S 392/34 IPC framed against the above two accused Mohd. Aftab and Mohd. Asif has not been proved against them. Similarly, the charge for the offence punishable U/S 397 IPC framed against the accused Mohd. Aftab is also bound to fail as this offence is an aggravated form of the offence punishable U/S 392 IPC.
30. Now, the evidence led by the prosecution on record regarding the identity of the other two accused Bharat Bhushan and Bajrang @ Sandeep is required to be appreciated. In this regard, it is observed that the complainant/PW1 has made detailed depositions on record regarding the manner in which he as well as his companion Sh Jadav were both robbed of the above cash amounts and other articles. As stated above, he has specifically SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
15stated on record that out of the above four persons/robbers, two persons, namely, Bharat Bhushan and Bajrang @ Sandeep are present in the court today. He has also stated in his chief examination itself that the accused Bharat Bhushan had asked the accused Bajrang @ Sandeep to take out a country made pistol and to point it towards them and thereafter the accused Bajrang @ Sandeep had taken out a country made pistol and had taken away Rs. 25000/-, mobile phones and a wrist watch from him and also Rs. 2000/- from Sh Jadav.
31. It has been argued by Ld Addl. PP for the State that the identification of the accused Bharat Bhushan and Bajrang @ Sandeep by the complainant/PW1 during his statement made in this court and the refusal by the above two accused persons to join the judicial TIP proceedings vide Ex. PW8/A, is sufficient to establish the identity of the above two accused as robbers and they both are liable to be convicted for the offence punishable U/S 392/34 IPC, for which charge was framed against them. It has also been stated by him that besides the above, the complainant/PW1 has also identified the above two accused on 22.06.2007 in the Patiala House Courts where he had seen them in unmuffled face, after their appearance in the court of Ld MM/PW8 in muffled face, where they had refused to join the judicial TIP proceedings, and the complainant/PW1 was also duly confronted with his supplementary statement dated 22.06.2007 Ex. PW1/J recorded by the IO/PW9 in this SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
16regard.
32. It is observed that though, the complainant/PW1 in his examination in chief has identified and specifically named the accused Bharat Bhushan and Bajrang @ Sandeep as two of the above four robbers, but when his statement is read in entirety the same cannot be acted upon by this court and made basis of conviction of the above two accused. It is a matter of record that none of the accused was named by the complainant/PW1 in his statement Ex. PW1/A, which is the basis of the FIR, as none of them was previously known to him. In his above statement Ex. PW1/A, the complainant/PW1 had only given the description of the offenders. The above two accused, as well as the other two accused named Mohd. Asif and Mohd. Aftab, had refused to join the judicial TIP proceedings vide their joint statements recorded as part of the above proceedings proved on record as Ex. PW8/A on the ground that they were shown to 2/3 persons by the police in the PS and some media persons were also present there at that time and even their photographs in unmuffled face were taken there.
33. The complainant/PW1 has not supported the prosecution case regarding seeing the accused persons in the Patiala House Courts on 22.06.2007 in unmuffled face, after they both had refused to join the TIP proceedings on that day, and he had denied the suggestions given by the Ld Addl. PP for the State on these lines during his cross-
SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
17examination conducted by Ld Addl. PP after he was got declared hostile. Though, the complainant/PW1 was confronted by Ld Addl. PP with his previous statement Ex. PW1/J dated 22.06.2007 on this aspect, but even this confrontation cannot be of any help for the case of the prosecution for establishing the identity of the above two accused as offenders. The complainant/PW1 has even denied the suggestion that on the above said date, he had reached the Patiala House Courts after he had first visited the PS to know the progress of their case. Rather, during his cross-examination conducted by Ld Defence Counsel for accused Bharat Bhushan, the complainant/PW1 has specifically admitted that he was called by the IO in the PS on 15.06.2007 when the above accused was arrested by the police and he had identified the accused Bharat Bhushan while he was in the custody of the police on that day. He has also admitted further that similarly the accused Bajrang @ Sandeep was also identified by him when the above accused was caught by the police for the first time and thereafter he had also seen him in the PS. On being questioned about the naming of these two accused in his examination in chief, he has stated that he do not now remember as to who disclosed to him the name of accused Bharat Bhushan or at whose instance he had named him in his examination in chief. He has also admitted in his cross-examination that in his previous statement Ex. PW1/A, he had not disclosed to the police that the accused Bharat Bhushan had asked the accused Bajrang @ Sandeep to SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
18take out the country made pistol and to point it towards them and this fact was disclosed by him for the first time only during his examination in chief. Hence, this can only be considered to be an improvement made by him which can be safely ignored.
34. In any case, once the complainant/PW1 has specifically admitted on record that both the accused Bharat Bhushan and Bajrang @ Sandeep were shown to him by the police at the time of their arrest in the PS, the subsequent identification of the above two accused by him in his statement made in this court is of no consequence. Even the refusal by the above two accused to join the judicial TIP proceedings cannot be considered against them because their grounds of refusal stand duly substantiated from the depositions made by complainant/PW1, who is the sole material witness of the prosecution on the point of identity of the accused persons, himself when he states and admits on record that these two accused persons were seen by him in the PS. Therefore, even these two accused Bharat Bhushan and Bajrang @ Sandeep cannot be held guilty and convicted for the charge for the offence punishable U/S 392/34 IPC on the basis of the depositions made on record by the complainant/PW1.
35. Charge for the offence punishable U/S 411 IPC was also framed against all the four accused persons as according to the prosecution story, the accused Bharat SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
19Bhushan was found to be in possession of one stolen mobile phone at the time of his apprehension by the officials of the Special Staff of Police, Distt. South on 15.06.2007 and the accused Mohd. Aftab had also subsequently got recovered one stolen mobile phone and the other two accused Mohd. Asif and Bajrang @ Sandeep got recovered a stolen wrist watch each.
36. PW4 SI Dalip Kumar of the Special Staff is the sole witness examined by the prosecution on record for proving the factum of apprehension of the accused persons leading to their arrest in this case. As per this witness, he was informed by some secret informer in his office on 15.06.2007 that 4-5 boys, who run Tavera Vehicle at night, board passengers in the car and commit loot with them, will pass from the road in front of Tara Apartments, Govind Puri at 09:30 AM. On above information and directions of the senior officers, he had constituted a raiding party comprising of SI Ashok, HC Ram Krishan, HC Shyambir and 2-3 other police officials and they all proceeded and had reached at the above spot in a Tata 407. At about 09:30 AM, a car bearing No. DL 1YA 6528 having four boys therein had come from the side of Tuglakabad and it was spotted on the pointing out of the secret informer and on enquiries, the above four persons, i.e. the accused herein, had disclosed their personal details and also their involvement in this case. PW4 has initially stated in his statement that the accused Mohd. Aftab had produced SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
20one Nokia Mobile and had given the same to him while stating that he, along with his above associates, had robbed the above mobile phone on 10.06.2007 at Ashram Chowk from a passenger. However, subsequently he had changed his stand by saying that the above mobile phone was recovered from the accused Bharat Bhushan and not from accused Mohd. Aftab. The above mobile phone has also been identified by him in his statement as Ex. P1. He then claims to have informed about the same to the duty officer of PS S.N. Puri and subsequently the IO/PW9 Inspector Sunil Kumar of this case had reached there and the above mobile phone was seized vide seizure memo Ex. PW4/A dated 15.06.2007 and the accused persons were also arrested in this case and interrogated. The above change in stand of the witness regarding the accused from which the above mobile phone was recovered is in itself a circumstances making his depositions on this aspect to be doubtful.
37. Further, no other member of the raiding team has been joined by the prosecution on record to substantiate the depositions made by this witness regarding the manner leading to the apprehension of the accused persons and their subsequent arrest in this case. Though the accused persons were allegedly apprehended at a busy public place, i.e. on the road in front of Tara Apartments which is a residential locality, but even then there is nothing on record to show that any public or independent person was joined by PW4 SI Dalip Kumar to substantiate or SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
21corroborate his claim regarding the arrest of the accused persons by him from the place and in the manner as stated above. Even, no attempt on his part is reflected from the evidence to join any such independent witness of the apprehension of the accused and the recovery of the above mobile phone from the accused Bharat Bhushan. It cannot also be just believed that the accused Bharat Bhushan had himself produced the above stolen mobile to him while admitting his involvement in the offence of robbery of this case, as deposed by this witness.
38. The arrest memos of all the four accused persons, their personal search memos and their disclosure statements have also been duly proved on record from the depositions made by PW4, PW7 Ct. Mahender Nagar and the IO/PW9 Inspector Sunil Kumar. It is the case of the prosecution that further recoveries of one stolen mobile phone and two wrist watches were effected from the remaining three accused, in pursuance of their alleged disclosure statements, as stated above. The disclosure statements of accused Mohd. Asif, Mohd. Aftab and Bajrang @ Sandeep have been proved on record as Ex. PW4/H, Ex. PW4/J and Ex 4/K respectively.
39. PW7 Ct. Mahender and the IO/PW9 are the only two witnesses produced by the prosecution on record on the aspect of recovery of th above articles at the instance of the above three accused. However, the depositions made by SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
22the above two material witnesses on this aspect are found to be lacking in corroboration and reliability and are also contradictory on certain aspects. All the above recoveries have been allegedly effected on 16.06.2007 and the seizure memos of the wrist watches recovered at the instance of accused Mohd. Asif and Bajrang @ Sandeep are Ex.PW7/B and Ex. PW7/C respectively and the seizure memo of the recovery of the mobile phone at the instance of accused Mohd. Aftab is Ex. PW7/A. The depositions of PW7 Ct. Mahender Nagar suggest as if the recovery at the instance of accused Mohd. Aftab was effected first, whereas according to the IO/PW9 Inspector Sunil Kumar it was the accused Mohd. Asif who had first got recovered the stolen wrist watch from his house. As per the IO/PW9, one wrist watch make Sonata was got recovered by accused Mohd. Asif from his house at C-456 Navjeevan Camp, Govindpuri, Kalkaji, New Delhi from inside an almirah, whereas according to PW7 the above watch was taken out by the above accused from a box, which was of medium size and was opened by the accused himself. PW7 has also stated that the above stolen mobile phone was got recovered by the accused Mohd. Aftab from his house at Navjeevan Camp and the same was taken out by the accused from an almirah kept in the room, but according to the IO/PW9 the above mobile phone was got recovered by this accused from behind a photo frame lying on the table in the house. Further, as per PW7 the stolen wrist watch was got recovered by the accused Bajrang @ Sandeep from him house/jhuggi at SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
23Navjeevan Camp and his depositions also suggest that the above watch was got recovered from this accused from a trunk, as the witness has stated that he do not remember the colour of the trunk, but according to the IO/PW9, the same was recovered from a suitcase.
40. Though, the houses of all the above three accused persons were situated in a thickly populated locality, i.e. Navjeevan Camp, Govind Puri, New Delhi, but even that no neighbour of the accused persons or any public or independent witness was joined by the IO at the time of effecting the above recoveries. The IO/PW9 has even admitted that he has not asked any public person to accompany them for the said recoveries. Even the complainant/PW1 Sh Ganesh Beri or Sh Jadav were not asked or called by the IO/PW9 to accompany them at the time of effecting the said recoveries. The non-joining of a public or independent witness at the time of effecting of the above recoveries also gives a serious blow to the credibility of the prosecution story.
41. Moreover, it has also been admitted by the above two witnesses on record that some other family members of the above accused persons, mainly females, were also present in the houses of the above accused persons at the time of effecting recoveries, but even they were not asked to by the IO/PW9 witness the seizure documents. The depositions of PW7 or the IO/PW9 also do not suggest that SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
24the above three accused persons were having the exclusive possessions or exclusive domains over the above stolen articles, allegedly got recovered by them. Further, no bill or invoice of any of the above four stolen articles, allegedly recovered from the possession or at the instance of the above accused persons, has also been brought or proved on record as per the provisions of the Evidence Act. Though during the examination of the complainant/ PW1, the photocopies of three bills/invoices have been brought on record as Ex. PW1/C, Ex. PW1/D and Ex. PW1/E and all the above three bills are in the name of the complainant/PW1, but there is no explanation or evidence on record as to why the originals of these documents have not been produced on record or witheld from this court. Even no attempt was made by the prosecution to summon any record from the concerned shops regarding the issuance of these bills/invoices.
42. The testimony of the complainant/PW1 regarding the articles robbed from him is also found to be contradictory as he had been shifting his stand on few occasions. Initially, in his chief examination, he has stated that he was robbed of Rs. 25,000/- in cash, 2 mobile phones and wrist watch and Mr. Jadav was robbed cash of Rs.2000/- and nothing else was available with them. However, during his cross-examination conducted by Ld Addl. PP, he had denied a suggestion given to him to be incorrect that the accused persons had also snatched his SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
25watch and even at the time of identification of the above two wrist watches as Ex.P3 and Ex.P4 during his such cross-examination he has stated specifically that both the wrist watches belonged to Sh Jadav. But, during his cross- examination conducted by Ld Defence Counsel for accused Bharat Bhushan, he has again stated that his wrist watch was also taken away from him. His above self contradictory stands regarding the above watches robbed in this incident has adversely effected the credibility of his testimony.
43. Again, in his statement Ex. PW1/A, which is the basis of the FIR, the make of the above vehicle used by the offenders was given as Quallis and the make of his wrist watch was given as Titan, but subsequently vide another writing Ex. PW1/F dated 13.06.2007 he had stated the make of the vehicle to be Tavera and the make of the wrist watch to be Sonata. Though, it can be admitted for a moment that he was not able to properly see or observe the make of the vehicle, but the above contradictions and shifting of stand by him regarding the make of his own watch cannot be digested.
44. Further, though, it is also the prosecution case that the above two recovered stolen watches were duly identified in the judicial TIP proceedings Ex. PW1/G, but the complainant/PW1 had even challenged the veracity of the above proceedings by stating that he was not aware as to on which document, his signatures were obtained in the SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
26said proceedings. Though, his depositions made in this regard cannot affect the admissibility or relevance of the above document, but his conduct and contrary stand on record force this court to arrive at a conclusion that he is not a mean of trust and credibility and his depositions cannot be acted upon safely.
45. Hence, the above evidence led by the prosecution on record regarding the recovery of the above stolen articles from the possession or at the instance of the above accused persons is not reliable or trustworthy enough for making it to be a basis for conviction of the accused persons for the offence punishable U/S 411 IPC.
46. Now, coming to the charge for the offence punishable U/S 25 of the Arms Act framed against the accused Mohd. Aftab, herein also there is no independent witness of recovery of the above illegal weapon at his instance. As per the prosecution case, subsequent to the recovery of the above stolen articles, the accused Mohd. Aftab had confessed regarding throwing away of the above illegal weapon, which was allegedly used in commission of the offence of robbery, and it was subsequently recovered at his instance.
47. However, it is found that the disclosure statement Ex.PW4/J allegedly made by this accused is silent with regard to the concealment of the above weapon and except SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
27the above disclosure statement, no other disclosure statement made by this accused leading to the recovery of the said weapon is a part of the evidence led on record. Even the depositions made by PW7 and the IO/PW9 regarding the place of recovery of the above weapon are found to be contradictory and not corroborative in nature as according to PW7 the accused Mohd. Aftab had led them to a place near the railway line at Sri Niwas Puri in the jungle and had got recovered a katta from under a stone under a tree, but the depositions of the IO/PW9 nowhere suggest that the above katta was got recovered from under any stone. Moreover, the katta could not have been concealed by the above accused under a stone when the confession of the accused, as per the depositions made by these witnesses, was that the same was thrown away by him.
48. In view of the above discussions, it is held that the evidence led on record by the prosecution lacks corroboration, consistency and reliability and the same is not sufficient to hold any of the four accused persons guilty of any of the offences for which charges were framed against them. All the four accused persons are, therefore, acquitted in the case FIR No. 298/07 and the accused Mohd. Aftab is also acquitted in the case FIR No. 312/07 giving benefit of doubt.
49. Their bonds U/S 437A Cr.P.C. have already been furnished on record. Hence, the previous personal and SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.
28surety bonds of the accused persons furnished on record are hereby cancelled and discharged.
Both the Files be consigned to record room.
Announced in the open
court on 06.08.2012 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. 98/07 and 106/07 State Vs Bharat Bhushan & Ors.