Delhi District Court
State vs . (1) Arjun on 30 April, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 142/2013
Unique Case ID: 02404R0201512013
State Vs. (1) Arjun
S/o Late Sh. Gulab Chand
R/o Katra No. 54, Inidra Market
Subzi Mandi, Ghanta Ghar, Delhi
Also at: Village Aasauji Bazar,
Distt.: Gorakhpur, Uttar Pradesh.
(Convicted)
(2) Dharmender
S/o Ganga Ram
R/o T85 and T41 Sita Saran Colony,
Sabzi Mandi, Ghanta Ghar, Delhi.
Also at: VPO & PS : Chhapia,
Distt.: Gonda, Uttar Pradesh.
(Convicted)
FIR No. : 358/2012
Police Station : Keshav Puram
Under Section : 392/397/411/120B Indian Penal Code
Date of committal to session court: 24.7.2013
Date on which orders were reserved: 25.3.2014
Date on which judgment pronounced:23.4.2014
St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 1
JUDGMENT:
(1) As per the allegations, on 26.12.2012 at Delhi the accused Arjun and Dharmender hatched a criminal conspiracy to commit robbery of cash of Rs.4,15,000/ belonging to PP Jewellers and thereafter at about 5:30 PM at Railway Bridge, Road No. 37, Keshav Puram, Delhi, and thereafter in pursuance of the above said conspiracy, the accused Arjun committed robbery of Rs.4,15,000/ belonging to the PP Jewellers from the possession of complainant which was facilitated by Dharmender an employee of PP Jewelers. It is also alleged that the accused Arjun used a pistol while committing the robbery on the above said date, time and place. It is further alleged that on 12.04.2013 at T85, Sita Saran Colony, Subzi Mandi, Ghanta Ghar, Delhi, the accused Dharmender dishonestly received or retained a stolen property i.e. Rs.1,60,000/ knowing or having reasons to believe the same to be stolen property belonging to PP Jewellers. It is further alleged that on 12.04.2013 at Katra No. 54, Indra Market, Subzi Mandi, Ghanta Ghar, Delhi, the accused Arjun dishonestly received or retained a stolen property i.e. Rs.1,00,000/ knowing or having reasons to believe the same to be stolen property belonging to PP Jewellers.
CASE OF PROSECUTION IN BREIF:
(2) The case of prosecution in brief is that on 26.12.2012 on receipt of DD No. 2 A, SI Devi Lal along with Ct. Sanjay reached at the spot i.e. Railway Bridge Road No. 37, Keshav Puram Delhi where they met the St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 2 complainant Mukesh along with Dharmender. SI Devi Lal recorded the statement of Mukesh who informed that he was working in PP Jeweller Karol Bagh as field boy and his duty was to serve order upon the customers and to collect the payment. He further stated that on 26.12.2012 he along with Dharmender left the office in motorcycle bearing No. DL 6SQ 6373 for serving an order and collecting the payment. He has further stated that they collected the payment of Rs.3 lacs 64 thousands from a customer at CP109, Pitam Pura and kept the same in a black coloured raxine bag and thereafter they collected another payment of Rs.51,000/ from PP Jewellers Pitampura Branch and kept the said payment also in the same raxine bag and thereafter were going towards Karol Bagh when Mukesh was driving the motorcycle and the bag containing money was also with him while Dharmender was sitting on the back sheet. At about 5:30 PM when they reached at Road No. 37 towards Inderlok and crossed the Railway Bridge, one person came on a pulsar motorcycle and hit their motorcycle from side on account of which he (Mukesh) as well as Dharmender fell down along with their motorcycle and simultaneously the said motorcycle rider also fell down. Thereafter, the said person came towards them, and pulled out a pistol from his pocket and threatened him (Mukesh) and asked to handover the bag to him or else he would shoot him and then he put the pistol on his stomach. According to Mukesh, he got frightened on which Dharmender insisted upon him and told him (Mukesh) to handover the bag to the assailant or else he (assailant) would shoot him, on which he (Mukesh) handed over the bag containing St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 3 money to the assailant after which the assailant fled from the spot in his pulsar motorcycle and went towards Kanhaiya Nagar Metro Station.
(3) On the basis of the above statement of complainant Mukesh, SI Devi Lal prepared a rukka and got the present FIR registered. Thereafter, during investigation, the accused Dharmender and his associate i.e. accused Arjun were apprehended who allegedly admitted their involvement in the present incident. After completing the investigations, the charge sheet was filed in the court.
CHARGES:
(4) Charges under Sections 120B, Section 392 r/w 120B and Section 411 Indian Penal Code were settled against both the accused Arjun and Dharmender to which they pleaded not guilty and claimed trial. Further a charge under Section 397 Indian Penal Code was settled against the accused Arjun to which he pleaded not guilty and claimed trial. (5) Before coming to the testimonies of individual witnesses, the details of the witnesses examined and the documents proved by them are hereby put in a tabulated form as under:
List of Prosecution Witness:
Sr. PW No. Name of the Details of the witness No. witness 1. PW1 HC Raj Kumar Police witness MHCM 2. PW2 Ct. Sanjay Police witness who had got the FIR registered St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 4 3. PW3 HC Ram Singh Police witness - DD Writer 4. PW4 Ajeet Kumar Nodal Officer Reliance Communications 5. PW5 Mukesh Victim/ eye witness to the incident 6. PW6 Shishir Malhotra Nodal Officer Aircel Ltd. 7. PW7 Saroj Bansal Customer of PP Jewelers 8. PW8 Manoj Saini Public witness who had given his bike to accused Dharmender 9. PW9 Anil Bhandari Cashier of PP Jeweler, Pitampura 10. PW10 Sunil Taneja Manager of PP Jewelers 11. PW11 Ct. Jaiveer Singh Police witness who had joined investigations with IO 12. PW12 Ct. Jogender Singh Police witness who had joined investigations with IO 13. PW13 SI Devi Lal Police witness / initial IO 14. PW14 ASI Ashok Kumar Investigating Officer of the present case List of documents exhibited: Sr. Exhibit No. Details of documents Proved by No. 1. PW1/1 Affidavit of evidence of HC Raj Kumar HC Raj Kumar 2. PW1/A Copy of Reg NO. 19 Sr No. 2645 3. PW1/B Copy of Reg NO. 19 Sr No. 2653 4. PW2/1 Affidavit of evidence of Ct. Sanjay Ct. Sanjay 5. PW3/1 Affidavit of evidence of HC Ram Singh HC Ram Singh 6. PW3/A DD No. 24A 7. PW3/A1 Copy of FIR 8. PW3/B Endorsement on rukka 9. PW4/A Customer Application Form of mobile No. Ajeet Kumar 8468812029 10. PW4/B Copy of DL 11. PW4/C CDRs of mobile No. 8468812029 St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 5 12. PW4/D Certificate U/s 65B 13. PW5/A Statement of Mukesh Mukesh 14. PW5/B Seizure memo of one key and mobile phone 15. PW5/C Sketch of pistol 16. PW5/D Seizure memo of Pistol 17. PW 6/A Customer Application Form of mobile No. Shishir Malhotra 7503954643 18. PW6/B Copy of Election card 19. PW6/C CDRs of mobile No 7503954643 20. PW6/D Cell ID Chart 21. PW6/E Certificate U/s 65 22. PW8/A Copy of RC Manoj Saini 23. PW11/A Arrest memo of Arjun Ct. Jaibir Singh 24. PW11/B Personal search memo of Arjun 25. PW11/C Disclosure statement of accused Arjun 26. PW11/D Arrest memo of Dharmender 27. PW11/E Personal search memo of Dharmender 28. PW11/F Disclosure Statement of Dharmender 29. PW11/G Seizure memo of Currency Amount 30. PW11/H Seizure memo of Currency Amount 31. PW11/I Pointing ed out memo 32. PW11/J Seizure memo of Debit card and PNB receipt 33. PW14/A Seizure memo of bill ASI Ashok Kumar 34. PW14/1 & Bills PW14/2 35. PW14/3 Biodata 36. PW14/4 Bio data 37. PW14/5 Registration book of motorcycle St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 6 EVIDENCE (6) In order to discharge the onus upon it, the prosecution has examined as many as fourteen witnesses: Public witnesses/ victim: (7) PW5 Mukesh has deposed that he is residing at the given address
along with his family. According to him, on the day of the incident i.e. on 26.12.2012 he was working with PP Jewelers Karol Bagh as a field boy but now he is working with PC Jewelers, Karol Bagh. He has explained that the nature of his job as a field boy was to collect payment and serve the orders.
He has deposed that on that day he had gone to Karol Bagh for official work, when he received a call from Dharmender that he was called back because he was to accompany Dharmender to Pitampura. According to him, when he came back he accompanied Dharmender on his bike CVC of red color whose number he does not recollect now. He has deposed that Dharmender only told him that they had to go to the house of customer at Pitampura for delivery of some order at Pitampura and for collecting payment of Rs 3 lacs 64 thousand. According to him, normally Dharmender used to carry two phones but on that day he was only carrying one mobile phone. He has deposed that Dharmender also gave him carry bag of the company of black color which was like a school bag which he handed over to him and compelled him to carry the same on his back and asked him to drive the motorcycle. When they left the showroom and reached almost half the way, St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 7 he received a call from the showroom. According to him, since he was driving the bike, he handed over his mobile phone to Dharmender and asked him to receive the call and he heard him telling the other person on the line that after going to the house of customer, they were also to go to the showroom at Pitampura. He deposed that he was repeatedly asking Dharmender about the details of the house of the customer but he did not disclose the same to him and told him to move on stating that he would keep giving him the directions and thereafter they went to the house of the customer at CP109 Pitampura and gave him the order and collected the payment of Rs 3 lacs 64 thousand. According to him, while he was counting the money, he noticed that Dharmender went to washroom and in the meanwhile he kept the money in the bag after counting the same and the customer was made to talk to the showroom on the telephone of Dharmender for confirming that the delivery had been made and the payment collected and thereafter they left the house of the customer that he was told by Dharmender that they had to go to Pitampura showroom. He has deposed that when they reached the Pitampura showroom and he was parking the bike Dharmender took the bag containing the payment from him. He has deposed that while they were entering the showroom together, he saw that Dharmender had already entered inside while he stopped for few seconds to wash his face outside. According to him, when he reached the cash counter, he found that Dharmender had already collected the payment from the cash counter to the tune of Rs 51 thousand which he had already kept in the carry St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 8 bag. He has deposed that when he went to the cash counter, he spoke to Mr. Anil at the cash counter regarding the billing when Dharmender suddenly came from behind and told him that he had already collected the payment and they should move and thereafter they left the showroom. He has further deposed that he showed his reluctance to Dharmender to drive the motorcycle since he was carrying the payment in the bag but Dharmender insisted that he should drive the motorcycle and also carry the payment bag and he forcibly made him to carry the bag on his back. Witness has deposed that thereafter when they started from the showroom and reached near the red light, he told Dharmender that they can move from the left side as there was a residential colony and it would be safer but he insisted that he turn on the right side. According to him, during this period Dharmender also received a call from somewhere and he thinks it was from his uncle / chachaji because he was addressing the other person as Chachaji and saying that he had just reached Kohat Enclave. The witness has deposed that he then told him (witness) that there was no petrol in the bike and they should go to the petrol pump for getting the petrol but he told him that the person who had given them his bike i.e. Manoj who is also a field boy had told him (witness) that there was sufficient petrol for moving up and down. According to him, Dharmender still insisted that they go to the petrol pump on which he (witness) told him that he had only thirty rupees and they can only fill the petrol for thirty rupees and they then went to the petrol pump in the same area. He has deposed that at about 55:30 PM after taking the St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 9 petrol they then went towards the Prembari Pull and while they were on the pull itself, a black color Pulsor bike came from behind and hit him from the side as a result of which he became unbalanced but still managed to be stable on the bike. Witness has explained that the said person on the bike again hit him from the side but he was again stable but third time when he hit him, the motorcycle became totally unbalance and both of them fell down and his bike hit the wall on the front side and the head light etc were broken and while he was on the bike and had fallen on the ground, Dharmender had got up. The witness has deposed that the person who had hit them with the bike had fallen down a little ahead from their bike. According to him, he was wearing a helmet at that time. He has deposed that the boy of the other bike in the meanwhile got up and took out his helmet and started hitting him on his head with his helmet as a result of which the helmet which he was wearing also broke. He has deposed that the said boy showed him his hand saying that he had been hurt and thereafter there were arguments between them. According to the witness, the said boy then asked him to hand over his bag to him which he refused. He has deposed that during this period while there was an argument Dharmender did not help him at all. According to him, he became apprehensive on seeing the aggressive behaviour of the said boy and therefore he backed out a little, when the said boy then suddenly took out a gun from under his shirt which he had tucked in the front side of his pant. According to him, he then pointed the said gun on his stomach and in order to save himself there was an altercation between him. St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 10 He has deposed that it was thereafter some time Dharmender intervene and asked the boy not to put the gun on him. He has further deposed that the said boy then pulled the bag from his back when one of the grips of the bag broke. According to him, Dharmender kept on telling the boy not to shoot while he was struggling to free himself and then Dharmender then took out the bag from his shoulder and gave it to the boy asking him not to shoot him (witness) "gole mat mariyo". The witness has deposed that the said boy took the bag and went away on his bike. Witness has deposed that he asked Dharmender as to what he had done and told him that in case he had cooperated with him, the said boy would not have taken his bag. He has further deposed that while the said boy was escaping, he tried to note down his number and only remember the few digits which were DL ....19 but Dharmender then told him that the last digits were 78. He has deposed that Dharmender asked him to start the bike and follow the said boy in the direction in which he had gone on which he immediately started the bike and went towards the red light. According to him, there they found two traffic police officials at the red light and he told them that a boy on a black pulsor had run away from the said direction with a bag on which they told him that they (traffic policemen) had not seen anybody. The witness has deposed that he asked them as to what he should do under these circumstances and they advised him to make a call on 100 number by going a little ahead where there was police barricading/ barrier. The witness has deposed that when he reached near the barricades, he asked the police officials the way to the St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 11 police station and they guided him, then they went to Keshavpuram Police Station where he gave them his complaint with regard to the incident. His statement in this regard is Ex.PW5/A bearing his signatures at point A. According to him, he also told the police that he could identify the boy who was on the bike. Witness has pointed out towards the accused Arjun as the boy who had come on the motorcycle and snatched his bag and the accused Dharmender who was his coemployee and was present with him.
(8) The witness has deposed that after recording his statement and the FIR, the police went with them at the place where the incident had taken place and he showed them the exact place where the bike had hit his motorcycle and police found some pieces of broken head lights. The police stopped him and Dharmender at the Police Station and did not permit them to contact anybody and thereafter they were taken around the area for search of the accused but they could not locate anybody. According to him, he had shown the exact site to the police and also showed them the place and the directions from where the accused had come and the spot where the incident had taken place. The witness has deposed that he also showed them the house of the customer at CP109, Pitampura from where they had collected the payment and the petrol pump from where they had collected the petrol and the show room of the PP Jewelers. He has deposed that the police had interrogated various persons at all these places and at the house of customer at Pitampura, the police had spoken to one lady whose name he does not St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 12 recollect. The witness has deposed that the police also checked the petrol pump for CCTV footage but the camera had not caught the visuals from the spot from where they had come as it was installed at other side. According to him, the police then saw the CCTV footage of the camera installed outside the PP Jewelers showroom at Pitampura which confirmed his presence along with Dharmender on which they then returned to the police station and thereafter he used to regularly go the PS Keshavpuram to find out the progress of the case.
(9) The witness has further deposed that date he does not recollect but it was in the month of April, 2013 that he was called to the PS as there was information that perhaps the police had apprehended some persons in the case. He has deposed that he went to the police station, where he saw one boy who was sitting in the police station and he confirmed that the said boy was the same person who had committed the incident of robbery of Rs 4 lacs 15 thousand with gun on 26.12.2012 by putting a gun/ pistol on him. The witness has deposed that after he identified the said boy and he was informed by the police that the name of the said boy was Arjun and his the accused who was present in the court. According to him, he also saw Dharmender sitting in the police station and it was then that he was informed by the police that Dharmender was mixed up with the said boy Arjun and the entire incident had been preplanned.
(10) The witness has deposed that he was again called to the PS on 17.04.2013 when he joined the investigations along with police. He has St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 13 further deposed that he was taken to Pull Bangash i.e. Roshanara road to the shop of Arjun and from a peti kept inside his shop, the police recovered one key and one mobile phone and took the same into possession by converting the same into pullanda with the help of a while cloth and sealed the same, the details of which he cannot tell and he thereafter seized the same vide memo Ex.PW5/B bearing his signatures at point A. He has deposed that the police then took him to Roshanara Park and from the bushes they recovered one pistol and he identified the said pistol as the one which the accused has shown to him. According to him, they prepared the sketch of the same vide Ex.PW5/C bearing his signatures at point A. He has deposed that thereafter they took the pistol into possession with the help of a white cloth and sealed the same with the seal whose details he does not recollect and seized the pistol vide memo Ex.PW5/D bearing his signatures at point A and thereafter he was relieved from the spot.
(11) In leading questions put to the witness by Addl. PP, the witness has admitted that the bike on which he and Dharmender had gone to receive the payment was bearing No. DL6SQ6373. He further admits that after he had shown the spot of the incident to the police the site plan Ex.PW5/E was prepared. He also admits that when he went to the PS on 17.04.2013, he had seen the accused Arjun sitting in the Police Station where he had identified him and also has voluntarily explained that he had earlier identified him in the PS on 12.04.2013. Witness has however denied that when they went to the shop of Arjun at Roshanara road, Arjun had accompanied the police St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 14 party along with him and has voluntarily explained that he did not see Arjun. Witness has denied that the NOKIA phone and the key was got recovered by the accused Arjun from his peti and has voluntarily explained that he did not see Arjun present at the spot. Witness has denied that the pistol was got recovered from the park by the accused Arjun and has voluntarily explained that Arjun was not with them when they went to the park. He admits that the key recovered from the peti was of the motorcycle driven by the accused Arjun on which he had fled after the incident. He does not recollect whether the seal put by the Investigating Officer on various pullandas was of AKS and has voluntarily explained that he was extremely disturbed on account of the incident. Witness has denied that he had been won over by accused Arjun on account of which he is deliberately now trying to protect him. (12) Witness has identified the Air Gun / Toy Pistol Ex.P1 as the one which the accused Arjun had pointed towards him and recovered from the peti kept in the shop of Arjun by the police. Court has observed that the pistol in question is not a toy pistol but is an improvised version of the country made pistol in which the cartridge can be put manually i.e. one at a time but cannot be operated as the trigger is not working. (13) Witness has also identified mobile phone make NOKIA of red and black color without SIM bearing IMEI No. 358290/03/354981/2 as the one which was recovered from the the peti kept in the shop of Arjun by the police. Same is Ex.P2. He has also identified the key Ex.PW3 as the one which was recovered from the shop of accused Arjun from a peti. St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 15 (14) In his cross examination by Ld. Defence Counsels, the witness has deposed that the police had recorded his statement a large number to time but he cannot tell how many times. He has deposed that the police recorded the statement of a lady customer at Pitampura whose name he does not recollect in his presence. He has deposed that the incident was occurred at about 55:30 PM. He has further deposed that they reached the police station at about 6 PM. According to the witness, many police officials accompanied them to the spot. He has deposed tht they reached at the spot at about 7 PM hut he does not recollect the exact time when they reached at the house of the customer at Pitampura and at PP Jewelers along with police officials. According to the witness, they accompanied the police to Pitampura in police gypsy. He has deposed that he gave the description of the accused to the police officials. He has deposed that he does not recollect the mobile number of accused Dharmender and has voluntarily explained that he normally used two mobile phones. He has deposed that he made 100 number call from his mobile phone and Dharmender made a call at showroom of PP Jewelers from his mobile phone. He has further deposed that he does not recollect whether the peti was locked or in open condition at the time of recovery. According to the witness, he was accompanied with 23 police officials. Witness has denied that he has identified the accused Arjun on the tutoring of the police officials or that accused Arjun was not involved in the present incident. He admits that he had not visited the house of accused Arjun as well as the house of accused Dharmender. He has St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 16 deposed the Police officials had not got prepared the sketch of the assailant and has voluntarily explained that he had only told them orally about the description of the assailant. He has deposed that at the time of the incident assailant was not wearing any mask on his face. According to the witness, he was not known to Arjun prior to the present incident. Witness is not aware if Dharmender has left the services after the incident and has voluntarily explained that the owner did not allow them to work with the showroom. Witness has denied that at the first instance he had refused to identify the accused Arjun in the police station and has voluntarily explained that he had identified him in the police station at the first instance itself and he had also shown injury mark on his hand to the police officials. He admits that Arjun was not present with them when the mobile, key and also the pistol was got recovered and has voluntarily explained that it was got recovered by the police themselves but he did not see any public person including Arjun at that time. Witness has denied that he am deposing falsely only to connect the accused Arjun with the present offence or that he is deposing falsely on the asking and tutoring of the IO.
(15) PW7 Saroj Bansal has deposed that she is the chairperson of Abhinav Global School Dwarka, Delhi. According to the witness, she had purchased some jewelry from PP Jewelers on 25.12.2012 for Rs.4,49,000/ and out of the said amount she paid Rs.85,000/ cash on 25.12.2012 itself. According to the witness, the delivery was to be made on 26.12.2012 when she was required to make the payment of remaining amount. She has St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 17 deposed that on 26.12.2012 at around 4 4:30 PM, two boys had come to her house to make the delivery of the purchased jewelry. She has further deposed that after the said delivery she made the payment to them of remaining amount of Rs.3,64,000/ in cash out of which some currency notes were in the denomination of Rs.1,000/ some were of 500/ and some of 100/ but she does not recollect their correct numbers. She has deposed that she can identify these two boys who had come to make the delivery and collect the amount. She has further deposed that after she received the delivery and made the payment she spoke to the owner of the showroom and confirmed the delivery and the payment. Witness has correctly identified the accused Dharmender as the boy who had come to her house. She has also identified the other boy from amongst the persons present in the court i.e. witness Mukesh by pointing out towards them (16) In her cross examination, the witness has deposed that she did not sign any document in token of receipt of the jewelry and making of payment and has voluntarily explained that she only gave the confirmation on telephone. She has deposed that they do not have a CC TV installed at their house. According to the witness, the boys had come to his house at around 4 - 4:30 PM. She is unable to give the detail of the currency notes which he handed over to the boys. Witness has admitted that she was not known to these boys prior to this incident and has voluntarily explained that she came to know about incident later.
St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 18 (17) PW8 Manoj Saini has deposed that he is residing on the given address along with his family and he is working with PP Jewelers Karol Bagh. According to him, on 26.12.2012 he was being sent for making official purchases at Lajpat Nagar M Block Market, however, since the items to be carried were very heavy and it was not possible to carry on the bike therefore he took the official scooter for purposes of taking the same to M Block Market and he left his bike at Karol Bagh office. According to him, while he was leaving another field boy working in their office requested him for his motorcycle make CBZ Hero Honda of red colour bearing No. DL 6SQ 6373 which is in the name of his father Sh. Rajinder Kumar Saini and he gave him the key of his motorcycle and told him that there was sufficient patrol in the same but later in the evening when he came back to office, he came to know about the incident after which he was called to the police station on two or three occasions along with his motorcycle. He has deposed that his motorcycle was at the police station for about one month after which he got the same released. He produced the original RC of the motorcycle copy of which is Ex.PW8/A. Court has however observed that the first Investigating Officer SI Devi Lal had kept the bike in the police station without either getting any mechanical inspection of the same conducted and thereafter released the same to the witness without any formal document. SI Devi Lal was asked by the court to explain the same when he admitted the same and simply stated that the bike was kept in the police station and thereafter handed back to the complainant. He also stated that the witness St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 19 had himself kept the bike in the Police Station and thereafter collected the same which explanation this court found is totally unbelievable given the circumstances of the case. This witness has not been cross examined on behalf of the accused despite opportunity.
(18) PW9 Anil Bhandari has deposed that he along with his family is residing on the given address and working as a cashier with PP Jeweler Pitampura for the last 8 years and his duty normally is at the cash counter. According to him, on 26.12.2012 at about 4:30 PM Dharmender and Mukesh had come he had handed over Rs.51,000/in cash to Dharmender for depositing in the Karol Bagh showroom which were in the currency notes of denomination of 1000 and 500. He has deposed that later on in the evening he came to know about the incident. According to him, he can identify both Dharmender and Mukesh. The witness has correctly identified the accused Dharmender and also Mukesh who is the witness in the present case. (19) In his cross examination, the witness has deposed that he does not recollect whether Dharmender and Mukesh had come together and has voluntarily explained that he only remember that he had given cash to Dharmender. He admits that they have CCTV camera installed in the premises but he cannot tell the position of the same and has voluntarily explained that he only know that there is one CCTV camera installed at the cash counter also. He has deposed that he is not aware if the police had collected the CCTV footage of the camera installed at the cash counter. He further states that he cannot tell the details of the currency notes i.e. how St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 20 many notes were in what denomination. He has deposed that he was only called by the police on one or two occasions but he cannot recollect when his statement was recorded by the police.
(20) PW10 Sunil Taneja has deposed that he is residing at the given address along with his family and he am working with PP Jewelers as a Manager since 1994. According to him, on 26.12.2012 they had deputed their field boys namely Mukesh and Dharmender to make the delivery of the order at CP109, Pitampura, Delhi from Mrs Saroj Bansal and to collect the payment of Rs 3 lacs 64 thousand from that address after which they were required to collect the some payment from their showroom at Pitampura to the tune of Rs 51 thousand. He has deposed that these boys had left their showroom at Karol Bagh on the motorcycle of another field boy namely Manoj. He has further deposed that at about 55:30 PM a telephone call was received in the showroom at Karol Bagh about the incident of robbery which had taken place with Mukesh and Dharmender at the pull on the fly over adjoining the Punjab Keshri office while they were returning from Pitampura to Karol Bagh. According to him, on coming to know of the same, he instructed both Mukesh and Dharmender to immediately inform the local police about the same and get an FIR registered. He has further deposed that a total of Rs 4 lacs 15 thousand cash was robbed from these boys on 26.12.2012. According to him, Mukesh had left the job on 31.12.2012 and Dharmender did not return/report to their office after 26.12.2012. He has identified Mukesh, (who is witness) and accused St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 21 Dharmender.
(21) In his cross examination, the witness has admitted that he is not an eye witness to the incident and he only told the police what was told to him by both Mukesh and Dharmender.
Nodal Officers:
(22) PW4 Ajeet Kumar has produced the summoned record pertaining to mobile No. 8468812029 issued in the name of Naveen Yadav, S/o Ranbir Singh, R/o Village Baitha, tehsil Naruli, PS Kaishan, District Imphal, Manipur, copy of which is Ex.PW4/A, copy of driving licence in support of residence proof is Ex.PW4/B, call details record from the period 01.12.2012 to 26.12.2012 along with the column showing the locations/ area detail are Ex.PW4/C. Certificate U/s 65 B of Indian Evidence Act is Ec.PW4/D bearing his signatures and office seal at point A. (23) In his cross examination, the witness has deposed that their main server is situated at Bombay. According to him, he has retrieved the call details from his personal computer set as he had a direct access to the main server at Mumbai through the pass word given to him. Witness has denied that there is no system of regular power backup in their office resulting into a data loss. He has stated that the entire data relating to Delhi is saved in the systems in Delhi for one year. Witness has denied that the above calls details have been fabricated on the directions and at the instance of the IO. St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 22
(24) PW6 Shishir Malhotra has brought the summoned record pertaining to mobile No. 7503954643 which is issued in the name of Satyawati Raj W/o Hans Raj R/o 134, Kabir Basti, Nehru Kutia, Malka Ganj, Delhi. Copy of customer application form is Ex.PW6/A and copy of election ID Card is Ex.PW6/B in support of residence proof. The call detail record from the search period 1.12.2012 to 31.12.2012 is Ex.PX6/C. The cell ID chart is Ex.PW6/D. Certificate U/S 65B of Indian Evidence Act is Ex.PW6/E bearing his signatures and official seal at point A. (25) In his cross examination by Ld. Defence counsel, the witness has deposed that their main server is situated at Gurgaon and he has retrieved the data from his official computer set. Witness has denied that there is no system of regular power backup in their office resulting into a data loss. Witness has denied that the above calls details have been fabricated on the directions and at the instance of the IO.
Police/ official witnesses:
(26) PW1 HC Raj Kumar has tendered his examinationinchief by way of affidavit which is Ex.PW1/1 bearing his signatures at points A and B. He has relied upon documents i.e. entry in register no. 19 vide S.No. 2645/13 copy of which is Ex.PW1/A, S.No. 2653/13 copy of which is Ex.PW1/B. In his cross examination, the witness has deposed that he does not recollect the exact time when ASI Ashok Kumar deposited the sealed St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 23 pullandas in the malkhana on 12.04.2013 and on 17.04.2013 but it was in evening time. He has denied that suggestion that he has deposed on the tutoring of the Investigating Officer.
(27) PW2 Ct. Sanjay has also tendered his examinationinchief by way of affidavit which is Ex.PW2/1 bearing his signatures at points A and B wherein he has stated that on instructions of the Investigating Officer, he took the rukika to the Police Station and after registration of the FIR, came back to the spot along with copy of FIR and original rukka and handed over the same to the Investigating Officer.
(28) In his cross examination, the witness has deposed that they reached at the spot at about 6:30 PM. According to him, the rukka was handed over to him by the Investigating Officer for registration of the FIR at about 7:30 PM and he reached the police station at about 7:50 PM and returned back to the spot along with copy of the FIR and original rukka at about 8:358:40 PM. He has deposed that in his presence the Investigating Officer recorded the statement of Mukesh and thereafter of Dharmender and thereafter he along with the Investigating Officer had left for Pitampura.
According to him, apart from Mukesh and Dharmender the statement of no other public witness was recorded in his presence by the IO. (29) PW3 HC Ram Singh has also tendered his examinationinchief by way of affidavit which is Ex.PW3/1 bearing his signatures at points A and B. He has relied upon documents i.e. DD No. 24A, copy of which is Ex.PW3/A, FIR No. 358/12 copy of which is Ex.PW3/A bearing his St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 24 signatures at point A and endorsement on rukka which is Ex.PW3/B bearing his signatures at point A. In his cross examination, he has denied that he recorded the DD No. 24A and the FIR ante datedly on the directions of the senior officers.
(30) PW11 Ct. Jaiveer Singh has deposed that on 12.04.2013 he was posted at Police Station Keshavpuram and on that day he along with ASI Ashok Kumar and Ct. Jitender were on patrolling and were present in the area of C Block, Keshavpuram when a secret informer met and informed that accused wanted in the present case which was committed about four months ago was standing near metro station Keshavpuram. According to him, in pursuance of the said secret information all the police officials along with secret informer reached near Keshavpuram metro station and secret informer pointed out towards one person standing there and told that he is the same person in respect of whom he had given the secret information. The witness has deposed that the said person was apprehended by them and his name was revealed later on as Arjun, S/o Late Sh. Gulab Chand and he was thoroughly interrogated by the Investigating Officer ASI Ashok Kumar in which he confessed regarding the incident of robbery dated 26.12.2012, i.e. of present case FIR No. 358/12. According to him, accused Arjun disclosed that he had committed the offence along with his coaccused Dharmender after hatching conspiracy. The witness has deposed that thereafter accused Arjun was arrested vide arrest memo Ex.PW11/A, his personal search was conducted vide memo Ex.PW11/B and his disclosure St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 25 statement was also recorded vide memo Ex.PW11/C. (31) The witness has deposed that the accused Arjun disclosed that he could get his coaccused Dharmender arrested from Sita Saran Colony, Ghanta Ghar, Delhi and thereafter in pursuance of the said disclosure, they proceeded in official vehicle for Sita Saran colony at the instance of accused Arjun and when they reached near the gate of above said colony accused Arjun pointed out towards one person who was standing near the gate and told that he is the same person namely accused Dharmender who had committed the incident dated 26.12.2012 after hatching the conspiracy along with him. The witness has deposed that on seeing the police party and accused Arjun, accused Dharmender tried to flee away from the spot, but he was apprehended by him and ASI Ashok Kumar. He has further deposed that Investigating Officer made inquiries from him and verify his name which was found Dharmender S/o Ganga Ram. According to him, the accused also confessed regarding the incident dated 26.12.2012. The witness has deposed that accused Dharmender was arrested vide memo Ex.PW11/D, his personal search was also conducted vide memo Ex.PW11/E and after interrogation, Investigating Officer also recorded his disclosure statement vide memo Ex.PW11/F. (32) The witness has deposed that in pursuance of his disclosure statement, accused Dharmender led them to his house i.e. T85, Sita Saral colony and got recovered currency amount Rs one lac 60 thousand from a box kept in a room. He has deposed that the said currency amount was kept St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 26 in a cloth parcel and sealed with the seal of AKS and same was seized vide seizure memo Ex.PW11/G which currency amounts were in the denomination of Rs.500/ and of Rs.100/ the details of which are mentioned in the seizure memo.
(33) The witness has deposed that thereafter in pursuance of his disclosure statement accused Arjun led them to his house i.e. Katra No. 54, Indira Market, Subzi Mandi, Ghantaghar and got recovered currency amount Rs. One Lac from the dewan/ single bed kept in his room. The witness has deposed that the said currency amount was found kept in a handkerchief. He has further deposed that the above said currency notes were kept in a cloth parcel and sealed with the seal of AKS and thereafter seized vide memo Ex.PW11/H and the details of the currency amount is mentioned in the seizure memo. The witness has deposed that thereafter the accused Arjun led them to the parking of the Pullbangash metro station for affecting the recovery of Pulsor motorcycle of black color but the same could not be recovered as the registration number of the motorcycle was not known. According to him, from there accused Arjun led them to a park of Roshanara road for affecting the recovery of racksene bag of black and red color and toy pistol but the same could not recovered at that time. The witness has deposed that thereafter both the accused led them to the spot of incident i.e. Prem Bari Pull, road No.37, near railway bridge and pointed out the place of incident and pointing out memo was prepared which is Ex.PW11/I. According to him, both the accused were medically examined from BJRM St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 27 Hospital and thereafter they returned to the police station and accused were put in the lockup and case property were deposited in the malkhana. (34) The witness has deposed that when accused Dharmender was arrested from his personal search PNB ATM and shopping card master card, Karur Vyas bank international Debit card and PNB receipt branch Subzi Mandi dated 17.01.2013 were also found which were separately seized vide seizure memo Ex.PW11/J. (35) Witness has identified the the accused Arjun and Dharmender in the court. He has also identified currency amount Rs one lac 60 thousand (311 notes of Rs 500/ and 45 notes of Rs 100/) as the same as recovered at the instance of accused Dharmender which are Ex.P4, currency amount Rs one lac ( 25 notes of Rs 1000/, 150 notes of Rs 500/) as the same as recovered at the instance of accused Arjun and are collectively Ex.P5. He has also identified that ATM and shopping card of PNB master card, International Debit card of Karyur Vyas Bank and PNB receipt dated 17.01.2013 which were on judicial file were also shown to the witness who correctly identified the same as recovered in the personal search of accused Dharmendera and the same are collectively Ex.P6.
(36) In his cross examination, the witness has deposed that they reached at Keshavpuram metro station at about 8:35 PM. According to him, accused Arjun was found standing there. He has deposed that accused was standing on the road which was leading towards Prem Bari Pull. According to him, they reached Sita Saral colony gate at about 10:20 PM. The witness St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 28 has deposed that the documents of arrest and disclosure statement of accused Arjun were recorded near the Keshavpuram Metro Station. Witness has further deposed that they reached at the house of accused Dharmender at about 12 midnight. She has also deposed that firstly accused Dharmender led them to his house and thereafter accused Arjun led them to his house. He has deposed that they reached at the house of Arjun at about 1:00 AM (midnight) and the Investigating Officer tried to join the public witnesses but they did not join the investigations after showing their inability. He has stated that the mother of accused Arjun was present at his house and the information regarding the arrest of accused Arjun was given to his mother after reaching his house. Witness has denied that he is deposing falsely on this aspect. He has deposed that they reached at the house of accused Arjun from the house of Dharmender on foot. He has further deposed that the arrest memo of accused Dharmender was prepared at the place from where he was apprehended.
(37) The witness has deposed that they they reached at the place of incident at about 3 AM when the pointing out was made by the accused persons. According to him, his statement was recorded on 13.04.2013 after completing the investigations on that day which runs from 12.04.2013 to 13.04.2013. The witness has denied that accused Arjun and Dharmender were not arrested in the manner mentioned above or that they were called in the police station and falsely implicated in the present case. Witness has denied that currency amount of Rs. one lac 60 thousand recovered at the St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 29 instance of accused Dharmender and currency amount Rs one lac recovered at the instance of accused Arjun were not the robbed amount or that same belongs to accused and their family members. Witness has denied that he had not joined the investigations or that he had not visited the place of arrest of accused persons and place of recovery. Witness has denied that he had signed all the documents while sitting in the police station. Witness has denied that he is deposing falsely at the instance of the investigating officer. (38) PW12 Ct. Jogender Singh has deposed that on 17.04.2013 he along with ASI Ashok Kumar, SI Sandeep and Ct. Sanjay (No. 751/NW) reached at Rohini courts where two days PC remand of accused Arjun and Dharmender was obtained. Thereafter, witness Mukesh met them in the police station and he on seeing the accused Arjun told that he was the same boy who on 26.12.2012 put the pistol on his stomach and snatched his bag containing currency amount. According to him, Mukesh on seeing accused Dharmender told that he is the same boy who was doing work with him at PP Jewelers as a field boy and was with him on the date of incident. (39) The witness has deposed that the accused Arjun led them to his motorcycle repairing kiosk and got recovered one duplicate key and one NOKIA mobile phone and the accused disclosed that with the help of above said duplicate key, he had lifted one motorcycle pulsor from the parking of Metro station Pullbangash. According to him, he also disclosed that he had used the said phone at the time of committing the offence dated 26.12.2012. The witness has deposed hat the above said key and the mobile phone were St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 30 kept in separate cloth parcels and sealed with the seal of AKS and seized vide seizure memo Ex.PW5/B. According to him, thereafter accused Arjun led them to the park at Roshanara Road for effecting the recovery of air gun (toy pistol) and got recovered the said air gun (toy pistol) from under the garbage and leaves near the boundary wall of the park. The witness has deposed that on seeing the said air gun, Mukesh informed them that the said pistol was the same pistol which accused had used on the date of incident while committing the offence. The witness has deposed that Investigating Officer prepared the sketch of the same vide Ex.PW5/C, the measurement of the air gun is mention in the sketch. According to him, the said air gun was put in the cloth parcel and sealed with the seal of AKS and seized vide seizure memo Ex.PW5/D. The witness has deposed that they tried to search the SIM card and the racksene bag with the help of accused but the same could not recovered.
(40) The witness has identified the Air Gun / Toy Pistol Ex.P1 as the one which was got recovered by the the accused Arjun. This Court on seeing the pistol observed that the pistol in question is not a toy pistol but was an improvised version of the country made pistol in which the cartridge could be put manually i.e. one at a time but it cannot be operated as the trigger was not working. He has also identified mobile phone make NOKIA of red and black color without SIM bearing IMEI No. 358290/03/354981/2 Ex.P2 as the one which was recovered by accused Arjun. He has also St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 31 identified the key Ex.P3 as the one which was recovered from the shop of accused Arjun from a peti.
(41) In his cross examination, the witness has deposed that Police Custody remand was obtained in the afternoon by the IO and thereafter from the court they returned to the PS at about 3:30 PM and thereafter they reached at the kiosk of motorcycle repairing of accused Arjun at about 66:30PM in private vehicle (car). Witness is unable to tell to whom the said car belongs. He does not recollect whether Investigating Officer had prepared any site plan of place of recovery of key and mobile phone. He also does not recollect whether site plan of place of recovery of air gun (toy pistol) was prepared by the Investigating Officer or not. The witness has deposed that they reached at the park at Roshanara Road at about 7:30 PM and they used the same vehicle for going there. He is unable to tell the distance between the motorcycle repairing kiosk and park at Roshanara road, however they reached there in 1520 minutes. Witness has denied that the accused Arjun and Dharmender were falsely implicated in the present case or that the accused Arjun did not got recovered the key, mobile phone and air gun or that same were planted upon him. Witness has further denied that he had not joined the investigations or that signed the documents while sitting in the police station.
(42) PW13 SI Devi Lal has deposed that on 26.12.2012 he was posted at P.S Keshav Puram and received DD No. 24A on which he reached on the spot i.e railway bridge road no. 37 along with Constable Sanjay. he St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 32 found there complainant Mukesh with his associate namely Dharmender and recorded the statement of Mukesh and prepared a rukka which is Ex PW 5/A and sent Constable Sanjay for registration of the case. According to him, he prepared site plan on the instance of complainant Mukesh which is Ex PW 5/E and thereafter, he searched the accused persons in the nearby area. The witness has deposed that thereafter, he went to CP109 Pitampura, Delhi along with Mukesh, Dharmender and Constable Sanjay and recorded the statement of Saroj Bansal from whom the complainant received cash. He has deposed that thereafter, he check the CCTV footage of P.P Jewellers at Netaji Subhash Place and CCTV footage of petrol pump but he did not find any clue of the accused. According to him, thereafter, he came back to the spot and recorded the statement of Mukesh and Dharmender. The witness has deposed that he discharged both of them from the investigation and came back to the Police Station where he recorded the statement of Constable Sanjay. According to him, thereafter, he interrogated the complainant Mukesh and Dharmender on the other day. On 06.02.2013 he was transferred to Police Station Model Town, therefore, he handed over the case file to MHCR.
(43) In his cross examination, the witness has deposed that they reached at the spot of incident at about 6.30 p.m. and that no other police official was present at the spot. According to him, he asked about the description of assailant from complainant Mukesh. Mukesh failed to give the description of the assailant however he stated that he can identify the St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 33 assailant. He admits that no sketch of the assailant was prepared. According to him, the accused Dharmender also stated that he cannot give the description of the assailant however he stated that he can identify the assailant. He has deposed that he sent Constable Sanjay to get registration of FIR after preparing the rukka at 7.30PM. According to him, Ct. Sanjay returned back at the spot at about 8.15PM with copy of FIR and original rukka. The witness has deposed that first of all he recorded statement of Mukesh, thereafter he recorded statement of Dharmender and thereafter he recorded supplementary statement of complainant Mukesh in presence of Ct. Sanjay. According to him, thereafter Ct. Sanjay was present in the entire investigation on that day. He has deposed that he also recorded the statement of Smt. Saroj Bansal in presence of Constable Sanjay. According to him, he reached the house of Saroj Bansal at about 8.45 p.m. He has deposed that he came to know about the incident from the DD entry. He admits that there was PCR call also. he did not get the CCTV footage converted into CDs nor the same has been placed on the judicial file. According to him, he did not record the statement of the cashier of P.P Jewellers on the aspect of seeing the CCTV footage. He has deposed that he did not seize the mobile phones of complainant Mukesh and accused Dharmender. he relieved the complainant Mukesh and accused Dharmender from the spot. The witness has further deposed that he interrogated the complainant and accused Dharmender next day from the incident again next day. According to him, he did not know anything else about this case except St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 34 as stated above.
(44) PW14 ASI Ashok Kumar Singh has deposed that on 22.02.2013 he was posted at P.S Keshav Puram and after registration of the case, the investigation of this case was handed over to him on 22.02.2013. According to him, on 12.04.2013 he was on petrolling along with his staff i.e Constable Jitender and Jaiveer at Cblock, Keshav Puram. He has deposed that he received a secret information there that a person who has committed robbery in this case might have come near Metro Station. He has further deposed that on this information, he went to the above spot along with his staff. According to him, at about 8.40 p.m, a person was seen coming towards metro station Keshav Puram and at the instance of secret informer, he was apprehended and arrested vide arrest memo Ex PW 11/A, his personal search was conducted vide memo Ex.PW11/B and his disclosure statement was recorded which is Ex.PW11/C wherein he confessed the commission of offence along with his associate Dharmender. The witness has deposed that the accused also disclosed that he could got recover the robbed cash from his house and pursuant to his disclosure statement, the accused taken the police party to Sita Saran Colony, Ghanta Ghar at the house of Dharmender and at the instance of accused Arjun, accused Dharmender was arrested who was also arrested vide memo Ex PW11/D, his personal search was conducted vide memo Ex PW 11/E and his disclosure statement was recorded vide Ex.PW11/F. According to him, St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 35 accused Dharmender got recovered cash amount of Rs. 1,60,000/ from the iron box lying in the room and there were different denomination of notes and the details of which was mentioned in the memo. The witness has deposed tht he cash notes seized in a pullanda and sealed with the seal of AKS and the same was taken into possession vide memo Ex.PW11/G an thereafter, accused Arjun led them to his house near Katra no. 54 Indira market, Sabji Mandi, Ghanta Ghar, Delhi and he got recovered cash of Rs. 1 lakh wrapped in the handkerchief from his residential room. The witness has deposed that cash was converted into pullanda and sealed with the seal of AKS and taken into possession vide memo Ex.PW11/H and they also searched raxine bag thrown by the accused persons in the park in front of the house of Dharmender and they tried to search the same but all in vain. The witness has deposed that similarly, accused taken them to Pul Bangash for recovery of the motorcycle used in the commission of the crime but the motorcycle was not traced out from there and thereafter, accused pointed out the place of incident i.e near Prem Bari Pul road no. 37 towards Inderlok and a pointing out memo was prepared which is Ex PW 11/I. The witness has deposed that hereafter, they returned to the police station after medically examined the accused persons.
(45) The witness has deposed that on 13.04.2013 the accused persons were produced before the concerned court and sent to judicial custody. He has deposed that he moved an application for TIP but accused persons refused to participate in the TIP. His application in this regard is Ex PX2 St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 36 and the TIP proceedings is Ex PX3. According to him, on 17.04.2013, the concerned court had granted two days P.C remand of both the accused persons. The witness has deposed that both were taken to the police station and complainant Mukesh also joined them and they went to Punjabi Basti in front of T150 Sabji Mandi Roshana Road, Delhi and recovered a key from the iron box and also recovered a mobile phone from the same box make NOKIA which was used in the commission of offence. According to him, both the above said articles were separated into pullanda and sealed with the seal of AKS and taken into possession vide memo Ex PW 5/B . The witness has deposed that as per the disclosure statement of accused persons, the toy pistol used in the commission of offence was thrown in the park at Roshana Road. According to him, both the accused led the police party and got recovered toy pistol from the park near Roshana Road under the dried leaves and other garbage and same was converted into pullanda and sealed with the seal of AKS and taken into possession vide memo Ex PW 5/D. The witness has deposed that before that he had prepared the sketch of the toy pistol which is Ex PW 5/C .The witness has deposed that he recorded the statement of witnesses, collected the CDR of mobile phone bearing no. 8468812029 which accused Arjun was carrying and also the CDR of mobile phone no. 7503954643 from dated 18.12.2012 to 26.12.2012. he also collected the bills of the P.P Jewellers by which the jewellery was sold and their employee were coming back after collecting the payment from respective party along with personal biodata of Dharmender and Mukesh St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 37 which bill was taken into possession vide memo Ex.PW14/A and the bills are Ex.PW14/1 and Ex.PW14/2. He has further deposed that the personal biodata of Dharmender is Ex.PW14/3 and personal bio data of Mukesh is Ex.PW14/4. According to him, he also collected the registration book of the motorcycle bearing no. DL6SQ6373 in the name of Rajender Kumar, same is Ex.PW14/5. According to him, he also seized the ATM and shopping card of PNB Master Card, international debit card of Krur Vasya Bank and PNB receipt dated 17.01.2013 and the same were seized vide seizure memo Ex.PW11/J. He has deposed that after completion of investigation, he filed the challan in the court through SHO.
(46) The witness has identified both the accused in the court. He has also identified that case property i.e. toy pistol Ex P1, mobile phone make NOKIA of red and black colour without SIM bearing IMEI no. 358290/03/354981/2 Ex P2, key Ex P3, cash of Rs.1,60,000/ i.e. 311 notes are of the denomination of Rs. 500/ and 45 notes of the denomination of Rs. 100/ collectively Ex P4, cash of Rs.1 lakh i.e 25 notes are of the denomination of Rs. 1000/ and 150 notes of the denomination of Rs. 500/ collectively Ex P5 and ATM, shopping card of PNB Master Card, international debiit card of Krur Vasya Bank and PNB receipt dated 17.01.2013 collectively Ex P6.
(47) In his cross examination, the witness has deposed that the secret informer met him personally and informed about the accused. According to St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 38 him, he arrested the accused on the road coming from Keshav Puram to Prem Bari Pul and at that time he was accompanied with his Constables namely Jaiveer and Jitender. He has deposed that he arrested the accused Arjun at about 8.40 p.m on 12.04.2013. He has further deposed that he reached Sita Saran Colony at about 10.15 p.m. and both of the above stated constables accompanied him and they reached Sita Saran Colony by a police gypsy. According to him, he prepared the arrest memo and search memo of accused Arjun at the place of his arrest. He recorded the statement of constable in the police station. According to him, the accused Dharmender was arrested at about 11.40 p.m on 12.04.2013. He has deposed that the recovery of cash was firstly from the house of Dharmender and then from the house of Arjun. According to him, they reached at the house of Dharmender within five minutes after his arrest. He has deposed that within 15 minutes they reached at the house of accused Arjun. According to him, he did not ask the accused Dharmender to join investigations since the investigations were handed over to him after the date of arrest but he did ask the complainant Mukesh to join the investigations on 23 occasions. He has deposed that he did not record the statement of complainant Mukesh when he was subsequently called to the police station for investigation purpose before the arrest of accused persons. He has further deposed that he had gone through the description of accused / assailant from the file only. The witness has gone through the file but the description of the accused is not found in the statement of complainant Mukesh. He has deposed that the St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 39 recovery of the article from the house of Dharmender was made within 30 minutes of his arrest and he did not join any public person in the investigation as it was night time. Witness has denied that the recovery of cash is planted upon the accused persons by him. The witness has admitted that he had not taken the description/ denomination of the notes from the complainant. According to him, they reached at the police station after completing entire investigations during the intervening night 12/13.04.2013 at about 5.00 a.m i.e on 13.04.2013.
(48) The witness has deposed that the pullandas were deposited with the MHCM on the intervening night on 12/13.04.2013 at 5.30 a.m. According to him, no information is required to be given to the local police in whose jurisdiction the investigations are being conducted. He has deposed that he had not called the complainant immediately after the arrest of accused Arjun and Dharmender. Witness has denied that photographs of accused persons were taken in the police station and were shown to the complainant. He does not remember the exact timing when Police Custody was granted and accused was taken to police station. He also does not remember the exact time but he come to kiosk of the accused Arjun in the evening time on 17.04.2013. According to him, they reached at the kiosk of accused Arjun by a private vehicle. He has deposed that he was accompanied by other police officials stated in his examination in chief on 17.04.2013. The witness has deposed that Kiosk of Arjun was about 5060 yards away from the Roshana Road. According to him, they reached from St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 40 Kiosk of Arjun to Roshana Road by foot. He has deposed that he inquired about the owner of mobile number 7503954643 and a lady was subscriber who has already expired. He has further deposed that he inquired about the owner of mobile number 8468812029 and during investigation it is found that it was a fake number. Witness has denied that both the mobile numbers were planted upon the accused persons. He has explained that he had taken the CDR of both the above said mobile numbers upto 30.12.2012 but both the mobiles were not in use after 26.12.2012 as per CDR. Witness has denied that all the proceedings were conducted in the police station or that no recovery of cash was taken place from the accused persons as alleged above. According to him, he had not recorded statement of any chowkidar or gardener of Roshana Park. Witness has denied that he called the accused Dharmender in police station and arrested him in this case. He does not remember the mobile number of accused Dharmender. He has deposed that after the arrest of accused Arjun he informed Vijay a relative of accused about the same. According to him, he does not remember as to who were present at the house of accused Arjun when they had gone there. He has also admitted that he had not conducted any investigation regarding footage of CCTV placed at P.P Jewellers.
STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:
(49) After completing the prosecution evidence, statement of accused under Section 313 Cr.PC was recorded wherein all the incriminating St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 41 evidence which has come on record was put to them which they have denied. (50) According to the accused Dharmender he is innocent. He has stated that he lives with his joint family and his father and brother are all working and his father is into the business of catering and the said amount was kept at their house for the business purposes. He has stated that the alleged recovery of money has been falsely planted upon him and he has not committed any offence as alleged. According to him, the entire allegations against him are incorrect and concocted by the police to falsely implicate him in this case. He has stated that the police had been harassing him from the date of alleged incident and on the day of his arrest, he was called by the police to the police station where he was detained for the whole day and thereafter he was made to sign forcibly some blank papers by the police which were later on converted into various memos in order to falsely implicate him in this case.
(51) The accused Arjun has stated that he was called at the Police Station in the morning on 12.4.2013 and was detained there after which he was falsely implicated in this case and his signatures were obtained forcibly on some blank papers by the police officials which were later on converted into various memos. He has further stated that the alleged recovery of money has been falsely planted upon him. He has stated that in fact his mother was HIV positive and was under treatment and the said amount was borrowed by him from his relatives including his Mama for the treatment of his mother. He has further stated that his mother has now died for the want St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 42 of proper treatment and care. According to him, he have not committed any offence as alleged and the entire allegations against him are incorrect and concocted by the police to falsely implicate him in this case. He has also stated that he was called by the police to the police station where he was detained for the whole day and thereafter he was made to forcibly sign some blank papers by the police which were later on converted into various memos in order to falsely implicate him in this case. He further stated that the toy pistol, key and the mobile phone have been planted upon him to falsely implicate him in this case.
(52) The accused have examined as many as two witnesses in defence. DW1 Vijay Gupta has deposed that accused Arjun is his nephew (bhanja). According to him, he gave Rs.75,000/ to Arjun on 6.4.2013, as his sister used to remain ill and was under treatment at Hindu Rao hospital but the Doctors at Hindu Rao hospital had denied to treat her by stating that her treatment is not possible at the said hospital and she be taken to some private hospital. The witness has deposed that on 24/25.3.2013, Arjun came to him and demanded some money for the treatment of her mother in private hospital. He has further deposed that he sought 34 days time for arranging the money. He has also deposed that he collected the money till 6.4.2013 and handed over Rs.75,000/ to Arjun. According to him, he used see his ailing sister at her house.
(53) In his cross examination, the witness has deposed that his bhanja Arjun is residing at Indira Market which is at distance of about 1015 St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 43 minutes on foot from his house. According to him the age of his sister was about 50 years. He has deposed that his brother in law (jija) i.e father of accused Arjun was working as junk dealer. He does not have any personal knowledge about this case and he was told by his sister about this case. The witness has deposed that he came to the court as he was called by counsel of Arjun. According to him, he is running a shop of spices and used to earn Rs.15,000/ to 20,000/ monthly. He has deposed that he is not an income tax assessee. He has further deposed that he had arranged the money from his shop and also by borrowing from his brothers and father. According to the witness, he had not executed any written document of giving loan to the accused and has voluntarily added that as he had given the money for treatment of his sister. He further deposed that he had taken Rs.20,000/ from his brother Parmod Gupta who is also running a spices shop, Rs.
35,000/ from his father who is aged about 82 years and does not work anywhere and has also voluntarily explained that they used to give their earnings to his father. The witness has deposed that he used to give Rs. 4500/ approximately to his father every month but is unable to produce any proof of his earning stating that his brother was maintaining the proof of earning. He has denied that as accused being his nephew he is deposing at his instance to save him from punishment or that he is deposing falsely. (54) DW2 Gangaram has deposed that Rs.1,60,000/ was taken by police officials in the night of 12th of the day, month and year he does not remember. According to him, his son Dharmender was called by the police St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 44 officials. The witness has deposed that he was called so many times by the police but he was not allowed to return and he was falsely implicated in a case. According to him, he had arranged the money for the construction of his house in Bengali Colony, Burari, Delhi.
(55) He has produced the documents with regard to purchase of the plot in Burari, Delhi in favour of his wife Geeta Devi. The GPA is Ex.DW2/A; Agreement to sell and purchase is Ex.DW2/B; Affidavit is Ex.DW2/C; Registered Will is Ex.DW2/D; possession letter is Ex.DW2/E; receipt is Ex.DW2/F and the Bayana Receipt/ part payments is Ex.DW2/G. (56) In his cross examination, the witness has deposed that he used to install rehri of golgappe, tikki and also used to work of catering. he used to earn Rs.10,000/ to 12,000/ monthly. According to him, he had saved Rs. 1,60,000/ for the last 23 years. He has stated that at that time, he was residing on rent of Rs.2000/ apart from electricity and water bills. According to him, he does not have any personal knowledge of this case. He has further deposed that he never asked from the police officials as to why they are time and again calling his son Dharmender. According to him, Dharmender used to work in PP Jewellers. The witness has deposed that he had not make any complaint to any senior police officers or to any other authority including the court with regard to taking of Rs.1,60,000/ by the police officials and has voluntarily explained that he was threatened by the police officials not to disclose this fact to anybody. He has deposed that his amount of Rs.1,60,000/ had been saved by him for purposes of constructing St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 45 his house at Gali No.28, Bengali colony, Burari, Delhi, but he is unable to tell the plot number. According to him, this land had been purchased in the name of his wife Geeta about 4/5 years back but he cannot tell the name of seller. The witness has deposed that he had not brought any document with regard to purchase of said plot. He has further deposed that he had paid the amount when he purchased the plot in cash and has voluntarily explained that it was for sum of Rs.4 lacs. He has deposed that he has an account in Nagrik Bank, Ghantaghar. He further deposed that he was to get his house constructed from the labour on daily wages basis and there was no contractor. Witness has denied that he have concocted a false story with regard to the giving of Rs.1,60,000/ to the police officials only to save his son Dharmender.
(57) In his further cross examination, the witness has admitted that the GPA, Agreement to sell and purchase, Affidavit, Possession letter, Receipt and the Bayana Receipt/ part payments are only notarized and not registered. Witness has denied that the Will Ex.DW2/D has not been registered in accordance with law.
FINDINGS:
(58) 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 memorandum of arguments filed by the parties and the evidence on record. My findings are as under:
St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 46
Electronic Evidence:
(59) The case of the prosecution is at that pursuant to his arrest the accused Arjun got recovered a mobile phone bearing IMEI No. 358290/03/354981/2 without SIM and at the time of incident he was using a SIM No. 8468812029 on the said mobile phone. Further, it is the case of the prosecution that at the time of the incident the accused Dharmender was using a mobile phone No. 7503954643.
(60) Ajeet Kumar (PW4) Nodal Officer from Reliance Communications has proved that mobile No. 8468812029 has been issued in the name of Naveen Yadav, S/o Ranbir Singh, R/o Village Baitha, Tehsil Naruli, PS Kaishan, District Imphal, Manipur vide Customer Application Form which is Ex.PW4/A, copy of driving licence in support of residence proof is Ex.PW4/B, call details record from the period 01.12.2012 to 26.12.2012 along with the column showing the locations/ area detail are Ex.PW4/C and certificate U/s 65 B of Indian Evidence Act which is Ex.PW4/D. (61) Sh. Shishir Malhotra (PW6) Nodal Officer from Aircel Ltd. has proved that mobile No. 7503954643 which has been issued in the name of Satyawati Raj W/o Hans Raj R/o 134, Kabir Basti, Nehru Kutia, Malka Ganj, Delhi vide Customer Application Form Ex.PW6/A and copy of election ID Card is Ex.PW6/B in support of residence proof. He has also proved the call detail record from the period 1.12.2012 to 31.12.2012 which is St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 47 Ex.PW6/C, Cell ID Chart which is Ex.PW6/D and certificate U/S 65B of Indian Evidence Act which is Ex.PW6/E. (62) I have gone through the call detail records of mobile no.
8468812029 (Ex.PW4/C) being used by accused Arjun and the call details record of mobile No. 7503954643 (Ex.PW6/C) being used by accused Dharmender and it is evident from the same that there were numerous calls between the above mobile numbers thereby establishing the close contact/ communication between both the accused Arjun and Dharmender. For the sake of convenience the relevant entries along with the location of the users of the above mobile phones for 26.12.2012 (date of incident) are being put in a tabulated form as under:
S. Calling No. Called No. Date Time Period Location of Location of No Dharmender Arjun
1. 7503954643 8468812029 26.12.12 12:15:32 135 Sec D.B.G. Road Subzi Mandi, (Dharmender) (Arjun) Ghanta Ghar 2 7503954643 8468812029 26.12.12 15:21:17 125 Sec D.B.G. Road Subzi Mandi, (Dharmender) (Arjun) Ghanta Ghar 3 7503954643 8468812029 26.12.12 15:30:37 46 Sec D.B.G. Road Subzi Mandi, (Dharmender) (Arjun) Ghanta Ghar
4. 7503954643 8468812029 26.12.12 17:02:06 94 Sec D.B.G. Road Vaishali (Dharmender) (Arjun) Pitampura 5 7503954643 8468812029 26.12.12 17:16:43 45 Sec JJ Colony, Netaji (Dharmender) (Arjun) Wazirpur Subhash Place 6 7503954643 8468812029 26.12.12 17:28:17 09 Sec Wazirpur Netaji (Dharmender) (Arjun) Indl. Area Subhash Place St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 48 (63) The aforesaid call details records of the mobile phone No. 7503954643 which was being issued by the accused Dharmender and that of mobile No. 8468812029 which was being used by accused Arjun, conclusively establishes that both of them were in regular touch with each other throughout the date of incident. From a joint reading and analysis of Call Detail Records of both the mobile phones, the following aspects are conclusively established:
➢ That on 26.12.2012 at 12:15:32 the accused Dharmender made a call to accused Arjun which call lasted for 135 Seconds and the location of accused Dharmender was in the area of D.B.G. Road whereas the accused Arjun was in the area of Subzi Mandi, Ghanta Ghar. ➢ That on 26.12.2012 at 15:21:17 the accused Dharmender made a call to accused Arjun which call lasted for 125 Seconds and the location of accused Dharmender was in the area of D.B.G. Road whereas the accused Arjun was in the area of Subzi Mandi, Ghanta Ghar. ➢ That on 26.12.2012 at 15:30:37 the accused Dharmender made a call to accused Arjun which call lasted for 46 Seconds and the location of accused Dharmender was in the area of D.B.G. Road whereas the accused Arjun was in the area of Subzi Mandi, Ghanta Ghar. ➢ That on 26.12.2012 at 17:02:06 the accused Dharmender made a call to accused Arjun which call lasted for 94 Seconds and the location of accused Dharmender was in the area of D.B.G. Road whereas the St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 49 accused Arjun was in the area of Vaishali Pitampura. ➢ That on 26.12.2012 at 17:16:43 the accused Dharmender made a call to accused Arjun which call lasted for 45 Seconds and the location of accused Dharmender was in the area of JJ Colony Wazirpur whereas the accused Arjun was in the area of Netaji Subhash Place (towers of the respective service providers covering the spot of incident). ➢ That on 26.12.2012 at 17:28:17 the accused Dharmender made a call to accused Arjun which call lasted for 45 Seconds and the location of accused Dharmender was in the area of Wazirpur Industrial Area whereas the accused Arjun was in the area of Netaji Subhash Place (towers of the respective service providers covering the spot of incident).
(64) A dispute has been raised by the Ld. Defence Counsels on the aspect of user of mobile phone by the accused Dharmender and Arjun and it is submitted that the Call Details have been fabricated only to work out the present case. It is submitted that the mobile phones have been planted upon the accused only to work out the present case.
(65) I have considered the rival contentions and I may observe that a joint reading/ analysis of the aforesaid call details of the above mobile phone numbers show that the entries of mobile phone numbers of the accused have come on the call details record and the accused have failed to adduce any evidence to establish any such fabrication and the submission of accused is St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 50 devoid of merit.
(66) I may observe that a joint reading/ analysis of the aforesaid call details of both mobile numbers show the close association and conduct of the accused Dharmender and Arjun. It establishes that before the incident both of them were constantly talking to each other and explains why Dharmender was trying to delay Arjun on the pretext of putting petrol in the motorcycle when there was no need for doing so. Apparently he was giving his locations to Arjun and also wanted to ensure that the place of the incident was such that the incident would go unnoticed by others. (67) Further the analysis of the location chart of the above mobile number establishes the location of the accused Arjun at the spot of incident at the time of the incident. The location chart of the above mobile phones also establishes the route taken by the accused Arjun and also by the accused Dharmender and finally both of them being together at the same place at the time of the incident.
(68) It also stands established that at the time of the incident the location of the accused Arjun was in the area particularly at the spot of incident, an aspect which finds independent confirmation from the version given by the eye witness Mukesh who had identified the accused Arjun as the person who had robbed him. When the aforesaid material was put to the accused under Section 313 Cr.P.C. they simply denied the same.
Dharmender was known to Arjun and was talking to him throughout prior to the incident and then pleaded ignorance about his identity. In view of the St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 51 above I hereby hold that the electronic evidence connects the accused Dharmender and Arjun with the offence and lends credence to the version of the eye witness Mukesh and the defence has not been able to successfully demolish the case so put forth by the prosecution as aforesaid. Criminal Conspiracy:
(69) The case of the prosecution is that both the accused Dharmender and Arjun had conspired with each other to commit robbery of the amount being collected by Mukesh and Dharmender both employees of PP Jewelers whose job was to collect money/ cash from customers and other Showrooms and to make deliveries. The accused Dharmender who was the employee of PP Jewelers had accompanied Mukesh for collection of amount on the date of the incident and for the said purpose had borrowed the motorcycle of another employee i.e. Manoj Saini (PW8) which bike was used by them to go to Pitampura from where the collected the amount from Smt. Saroj Bansal after which they went to PP Jewelers Showroom at Pitampura and on the way back to Karol Bagh, they had been robbed. This robbery was planned by Dharmender and Arjun according to which plan after the amount was collected the bag would be handed over to Mukesh who would also be driving the motorcycle so that Dharmender is away from suspicion and on the way back, they would take a lonely route where the accused would show the incident as an accident and roadrage and walk away with the bag of money. For giving effect to this plan Dharmender would throughout be in St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 52 touch with Arjun and keep informing him about his location at various points of time.
(70) Before coming to the evidence on merits, I may observe that since conspiracy is the primary charge against the accused, we first advert to the law of conspiracy - its definition, essential features and proof. (71) Section 120A IPC defines "criminal conspiracy" as under: "Definition of criminal conspiracy When two or more person agree to do, or cause to be done, (1) An illegal act, or (2) An act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object." (72) It is clear from the above noted definition of "criminal conspiracy" that the three essential elements of offence of conspiracy are (a) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished; (b) a plan or scheme embodying means to accomplish that object; (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means. Thus, the gist of offence of criminal conspiracy is St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 53 an agreement to break the law.
(73) Sections 120A and 120B were brought on the statute book by way of Criminal Law Amendment Act, 1913. Earlier to the introduction of Sections 120A and 120B, conspiracy per se was not an offence under the Indian Penal Code except in respect of the offence mentioned in Section 121A. In the Objects and Reasons to the Amendment Bill, it was explicitly stated that the new provisions (120A & B) were "designed to assimilate the provisions of the Indian Penal Code to those of the English Law...." Thus, Sections 120A & 120B made conspiracy a substantive offence and rendered the mere agreement to commit an offence punishable. (74) Proof of a criminal conspiracy by direct evidence is not easy to get and probably for this reason Section 10 of the Indian Evidence Act was enacted. It reads as under: "10. Things said or done by conspirator in reference to common design:Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
(75) Thus, the substantive section of the IPC i.e. Section 120A adumbrated thereon Section 10 of the Indian Evidence Act give us the St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 54 legislative provisions applicable to conspiracy and its proof. (76) After survey of the case law on the point, following legal principles pertaining to the law of conspiracy can be conveniently culled out: (A) When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy. (State v Nalini (1999) 5 SCC 253) (B) The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are coparticipators in the main object of the conspiracy. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 55 them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role. (Yash Pal Mittal v State of Punjab AIR 1977 SC 2433 and State v Nalini (1999) 5 SCC 253) (C) It is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the graham of the crime of conspiracy.
(D) The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 56 agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy. Since a conspiracy is generally hatched in secrecy, it would quite often happen that there is no evidence of any express agreement between the conspirators to do cause to be done the illegal act. For an offence under Section 120B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act; the agreement may be proved by necessary implication. The offence can be only proved largely from the inference drawn from acts or illegal omission committed by the conspirators in pursuance of a common design. The prosecution will also more often rely upon circumstantial evidence. It is not necessary to prove actual meeting of conspirators. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design is sufficient. Surrounding circumstances and antecedent and subsequent conduct of accused persons constitute relevant material to prove charge of conspiracy. (Shivnarayan Laxminarayan Joshi v State of Maharashtra AIR 1980 SC 439, Mohammad Usman Mohammad Hussain Maniyar v State of Maharashtra AIR 1981 SC 1062 and Kehar Singh v State AIR 1988 SC 1883) (E) A conspiracy is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts. So long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement is made, but it is not a thing of the moment. It does not end with the making of the agreement. It will continue so long as there are two or St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 57 more parties to it intending to carry into effect the design. Its continuance is a threat to the society against which it was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to do so. The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalized or done, attempted or even frustrated and vice versa.
(F) Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the coconspirators. In short, the section can be analysed as follows: (1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co conspirator and not in his favour. (See the decision of Supreme Court reported as Sardar Sardul Singh v State of Maharashtra AIR 1957 SC 747).
(77) As discussed in the foregoing paras, more often than not, the prosecution would adduce circumstantial evidence to prove the charge of conspiracy. The question which arises is that what should be the nature of St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 58 circumstantial evidence in a case of conspiracy to bring home the guilt of the accused persons.
(78) Applying these settled principles of law to the facts of the present case the electronic evidence on record (as discussed separately) establishes the close connection and communication between the user of mobile No. 8468812029 i.e. accused Arjun and user of mobile No. 7503954643 i.e. accused Dharmender. It also confirms the route taken by both the accused. In so far as the user of mobile No. 7503954643 i.e. Dharmender is concerned the route so taken is inconformity with the route as orally stated by the victim Mukesh lending support to his version and also confirming that on the date of incident Dharmender was using the above SIM. On the other hand the accused Arjun who is having a shop at Subzi Mandi started from Subzi Mandi and came towards the area of Prembari Pull which was the route taken by the victim for reaching Karol Bagh and is compatible to the time taken to reach this spot. The victim Mukesh (PW5) has explained throughout this period how Dharmender had made him to drive the motorcycle and also compelled him to carry the bag which was a sling bag on his back while he was driving the motorcycle though he felt uncomfortable while doing so and even at the time of the incident the accused Dharmender was the one who persuaded him to handover the bag to the alleged assailant and then himself took the bag and handed it over to accused Arjun while dramatizing the whole episode and shouting "Don't Shoot" (goli mat mariyo). The conduct of accused Dharmender throughout has been dubious. Mukesh (PW5) has St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 59 explained that when they went to the house of Smt. Saroj Bansal the accused Dharmender had gone to the washroom in the said house while he (Mukesh) collected the payment of Rs. 3,64,000/ from Smt. Saroj Bansal. Here, I may mention that Smt. Saroj Bansal (PW7) has also identified both the accused Arjun and Dharmender who had come to her house and had collected the payment from her. Mukesh has also proved that Dharmender had insisted that he (Mukesh) should carry the bag while also simultaneously drove the motorcycle and when they reached the showroom of PP Jewelers at Pitampura he (Dharmender) took the bag himself and obtained the payment from the Cashier Anil Bhandari (PW9). The Cashier Anil Bhandari (PW9) also confirmed that he had handed over an amount of Rs.51,000/ to the accused Dharmender. Thereafter Dharmender again made Mukesh to drive the motorcycle while the sling bag containing the cash was on his (Mukesh's) back, which conduct was again very unnatural because the victim Mukesh could have either drive the motorcycle or could have carry the sling bag and it would have been very difficult for him to do the both while the accused Dharmender did nothing except to sit on the pillion seat and receive/ make calls and inform about his location. His conduct is highly dubious and it is here that the provisions of Section 8 of Evidence Act which would come into operation.
(79) As per the provisions of Section 8 of the Indian Evidence Act, 1872 Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 60 agent to any party, to any suit or proceedings, in reference to such suit or proceedings, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
(80) It is hardly said that there any action without a motive. Conduct of a person to proceedings in reference to any fact in issue or relevant fact is relevant. As per the provisions of Section 8 the conduct whether previous or subsequent an offence against whom is the subject of inquiry is relevant if the conduct influences or influenced by any fact in issue or a relevant fact as it throws light upon a person's motive, intention, goodfaith etc. Subsequent act of a person which is indicative of desire to avoid or stifle judicial inquiry into an offence of which the party doing the act is accused or suspected is relevant. The conduct of a person immediately after the offence is relevant under these circumstances and in the absence of any explanation for such act the presumption would be against such person.
(81) Applying these settled principles of law to the facts of the present case it is writ large that the conduct of Dharmender immediately before the incident was highly suspicious. He made Mukesh to drive the motorcycle while carrying the sling bag while he did nothing. The reason for the same was obvious. Dharmender was throughout in the contact of accused Arjun and passing on the information to him. Further, despite the St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 61 fact that the motorcycle did not require any petrol, Dharmender kept on insisting that they need to put some petrol in the motorcycle as they were running out of the fuel and this was despite the fact that Mukesh was aware that the person who had given them the bike i.e. Manoj Saini who was also a field boy had told him (Mukesh) that there was sufficient petrol for going up and down. This fact has been independently confirmed by Manoj Saini (PW8) who has stated that there was sufficient petrol in his motorcycle bearing No. DL 6SQ 6373 which he had given to Dharmender for purposes of driving. It was Dharmender who had borrowed the motorcycle from Manoj Saini and not Mukesh. The whole thing had been planned out in advance. While Arjun had stolen the motorcycle which he used at the time of incident, Dharmender had borrowed the motorcycle which they were using from Manoj Saini and he made Mukesh to drive this motorcycle and also made him (Mukesh) to carry the bag containing amount. This conduct of Dharmender in compelling Mukesh to stop the motorcycle on the petrol pump near Netaji Subhash Place to take the fuel, only reflects that he was doing so because he knew that Arjun was on his way and had not reached the spot on the route which was being taken by them and Dharmender wanted to gain time in the same in which he was successful. When Mukesh also told him on one occasion that they should take another route through the residential area as the main route was isolated with not much traffic and it was much safer to pass through the residential area, it was the accused Dharmender who insisted that they should take the main road which was an St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 62 isolated road, thereby establishing that Dharmender did not want to take any chance and insisted that they should take the isolated route away from the residential houses. Thereafter at Prembari Pull when Arjun had hit the motorcycle which was being driven by Mukesh on three occasions, initially on two occasions when the motorcycle was hit Mukesh was able to retain the balance of the same but on the third occasion not only did Mukesh fell down but also the motorcycle being driven by Arjun fell down which was done deliberately to create a pretext or ploy to create a quarrel at the spot. The entire thing thereafter was stagemanaged. By alleging that Mukesh was rashly driving the motorcycle, Arjun picked up the quarrel and during the quarrel Arjun snatched the sling bag containing cash amount from Mukesh which he resisted. During this process one of the handle of the bag had come out. It was then that Arjun took out a toy pistol which he showed to the victim as if it was a real pistol and threatened Mukesh with the same and it was then that Dharmender who did not intervene at any point of time during the dispute between Arjun and Mukesh, then jumped into the fray and started shouting at Arjun not to shoot Mukesh and snatched the bag containing the bag of cash from Mukesh and handed it over to Arjun. The whole thing had been dramatized in a totally filmy manner. The conspiracy is writ large on the face of it. An independent confirmation and corroboration is forthcoming from the electronic data which has been placed on record confirming the route taken not only by Arjun but also by Dharmender and Mukesh.
St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 63 (82) This being the background I hereby hold that the prosecution has been able to successfully prove and establish the Conspiracy so attributed to the accused Arjun and Dharmender.
Employment of Dharmender and Mukesh as Field Boys at PP Jewelers stands established:
(83) The case of the prosecution is that both the accused Dharmender and the victim Mukesh were employed as Field Boys at PP Jewlers whose job was to collect payment or transport various items from one place to another as per the directions issued to them. In this regard the testimony of Sunil Taneja (PW10) is most relevant. He is the Manager of PP Jewelers and has proved that both the boys i.e. accused Dharmender and victim Mukesh were their employees on the date of incident i.,e. 26.12.2012 and they were on duty to collect the payment from Pitampura area. In fact the cashier of PP Jewelers namely Anil Bhandari who has been examined as PW9 has also confirmed the presence of accused Dharmender and victim Mukesh at the Showroom of PP Jewelers at Pitampura on 26.12.2012 at about 4:30 PM and has proved that he had handed over a sum of Rs.51,000/ in cash to Dharmender for depositing the same in Karolbagh Showroom. Even the accused Dharmender does not dispute his employment as Field Boy and the fact that he was on duty and had gone out with Mukesh for purposes of collection which has not been controverted by the accused and hence this aspect stands established. I may also add that in so far as Sunil Taneja St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 64 (PW10) is concerned he has also corroborated the testimony of Mukesh (PW5) to the extent that a call had been received by him at about 5:005:30 PM informing him about the incident on which he had told the Field Boys to immediately inform the police and hence under the given circumstances I hold that he has independently confirms and corroborates the testimony of Mukesh Kumar as regards his employment with PP Jewelers and his being on duty on the date of incident and having gone with Dharmender to collect payment from customers.
Source of Rs.4,15,000/ i.e. robbed amount Established :
(84) The case of the prosecution is that at the time of the incident the Filed Boys had collected a sum of Rs.3,64,000/ from one client Smt. Saroj Bansal and Rs.51,000/ was collected from PP Jewelers Showroom at Pitampura and both these amount were collected and had to be brought back to the Head Office. In this regard the testimonies of Smt. Saroj Bansal (PW7) and Anil Bhandari (PW9) the cashier of PP Jewelers Showroom at Pitampura are most relevant. They have both corroborated the testimony of Mukesh (PW5) to the extent that the Customer Smt. Saroj Bansal had handed over a sum of Rs.3,64,000/ to the victim Mukesh after which Mukesh and Dharmender had both gone to the showroom of PP Jewelers at Pitampura where Anil Bhandari the Cashier had handed over Rs.51,000/ to Dharmender which he put in the hand bag and thereafter both Mukesh and Dharmender were supposed to report to the main Showroom at Karol St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 65 Baghand while they were on the way when they were crossing the Prembari Bridge the incident in question took place. This aspect has not been disputed or controverted nor the witness has been crossexamined on this aspect.
Rather on the contrary the accused Dharmender admits that he was with Mukesh at the time of the incident and hence under the given circumstances I hereby hold that the aspect of Rs.4,15,000/ being robbed from the possession of Mukesh which amount has been duly accounted for by the various witnesses stand established and proved.
Ocular Evidence:
(85) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspect connected with the offence, there is no reason to reject their testimonies.
(86) In the present case the prosecution has placed its reliance on the testimony of the victim/ sole eye witness Mukesh (PW5) who was working with PP Jewelers, Karol Bagh as a Field Boy and on the date of incident had gone out for purposes of collection along with the accused Dharmender. I may observe that since the prosecution is placing its heavy reliance on the testimony of Pradeep (PW15) and hence it is necessary for this Court to first St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 66 determine whether what they have deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.:
Krishnan Vs. State reported in AIR 2003 SC 2978).
St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 67 (87) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful cross examiner and at times under the stress of crossexamination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965).
(88) Applying these settled principles of law to the facts of the present case, coming now to the testimony of Mukesh (PW5). The relevant portion of the same is reproduced as under:
"........ I am residing at the aforementioned address along with my family. On the day of the incident i.e. on 26.12.2012 I was working with PP Jewelers Karol Bagh as a field boy. Today I am working with PC Jewelers, Karol Bagh. The nature of my job as a filed boy was to collect payment and serve the orders. On that day I had gone to Karol Bagh for official work, when I received a call from Dharmender that I was called back because I was to accompany Dharmender to Pitampura. When I St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 68 came back I accompanied Dharmender on his bike CVC of red color whose number I do not recollect today. Dharmender only told me that we had to go to the house of customer at Pitampura for delivery of some order at Pitampura and for collecting payment of Rs 3 lacs 64 thousand. Normally Dharmender used to carry two phones but on that day he was only carrying one mobile phone. Dharmender also gave me carry bag of the company of black color which was like a school bag which he handed over to me and compelled me to carry the same on my back and asked me to drive the motorcycle. When we left the showroom and reached almost half the way, I received a call from the showroom. Since I was driving the bike, I handed over my mobile phone to Dharmender and asked him to receive the call and I heard him telling the other person on the line that after going to the house of customer, we were also to go to the showroom at Pitampura. I was repeatedly asking Dharmender about the details of the house of the customer but he did not disclose the same to me and told me to move on stating that he would keep giving me the directions. Thereafter we went to the house of the customer at CP109 Pitampura and gave him the order and collected the payment of Rs 3 lacs 64 thousand. While I was counting the money, I noticed that Dharmender went to washroom. In the meanwhile I kept the money in the bag after counting the same and the customer was made to talk to the showroom on the telephone of Dharmender for confirming that the delivery had been made and the payment collected. Thereafter we left the house of the customer that I was told by Dharmender that we had to go to Pitampura showroom. When we reached the Pitampura showroom and I was parking the bike Dharmender took the bag St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 69 containing the payment from me. While we were entering the showroom together, I saw that Dharmender had already entered inside while I stopped for few seconds to wash my face outside. When I reached the cash counter, I found that Dharmender had already collected the payment from the cash counter to the tune of Rs.51 thousand which he had already kept in the carry bag. When I went to the cash counter, I spoke to Mr. Anil at the cash counter regarding the billing when Dharmender suddenly came from behind and told me that he had already collected the payment and we should move. Thereafter we left the showroom. I showed my reluctance to Dharmender to drive the motorcycle since I was carrying the payment in the bag but Dharmender insisted that I should drive the motorcycle and also carry the payment bag and he forcibly made me to carry the bag on my back. Thereafter when we started from the showroom and reached near the red light, I told Dharmender that we can move from the left side as there is a residential colony and it would be safer but he insisted that I turn on the right side. During this period Dharmender also received a call from somewhere and I think it was from his uncle/chachaji because he was addressing the other person as Chachaji and saying that he had just reached Kohat Enclave. He then told me that there was no petrol in the bike and we should go to the petrol pump for getting the petrol but I told him that the person who had given us his bike i.e. Manoj who is also a field boy had told me that there was sufficient petrol for moving up and down. Dharmender still insisted that we go to the petrol pump. I told him that I have only thirty rupees and we can only fill the petrol for thirty rupees. We then went to the petrol pump in the same area. St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 70 At about 55:30 PM after taking the petrol we then went towards the prembari pull and while we were on the pull itself, a black color Pulsor bike came from behind and hit me from the side as a result of which I became unbalanced but still managed to be stable on the bike. Again the said person on the bike hit me from the side but I was again stable but third time when he hit me, the motorcycle became totally unbalance and both of us fell down. My bike hit the wall on the front side and the head light etc were broken. While I was on the bike and had fallen on the ground, Dharmender had got up. The person who had hit us with the bike had fallen down a little ahead from our bike. I was wearing a helmet at that time. The boy of the other bike in the meanwhile got up and took out his helmet and started hitting me on my head with his helmet as a result of which the helmet which I was wearing also broke. The said boy showed me his hand saying that he had been hurt and thereafter there were arguments between me and him. The said boy then asked me to hand over my bag to him which I refused. During this period, while there was an argument, Dharmender did not help me at all. I became apprehensive on seeing the aggressive behaviour of the said boy and therefore I backed out a little. The said boy then suddenly took out a gun from under his shirt which he had tucked in the front side of his pant. He then pointed the said gun on my stomach. In order to save myself there was an altercation between me and him. It was thereafter some time Dharmender intervene and asked the boy not to put the gun on me. The said boy then pulled the bag from my back when one of the grips of the bag broke. Dharmender kept on telling the boy St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 71 not to shoot while I was struggling to free myself. Dharmender then took out the bag from my shoulder and gave it to the boy asking him not to shoot me. "gole mat mariyo". The said boy took the bag and went away on his bike. I asked Dharmender as to what he had done and told him that in case he had cooperated with me, the said boy would not take my bag. While the said boy was escaping, I tried to note down his number and only remember the few digits which were DL 19 but Dharmender then told me that the last digits were 78. Dharmender asked me to start the bike and follow the said boy in the direction in which he had gone. I immediately started the bike and went towards the red light. There we found two traffic police officials at the red light. I told them that a boy on a black pulsor had run away from the said direction with a bag on which they told me that they had not seen anybody. I asked them as to what I should do under these circumstances and they advised me to make a call on 100 number by going a little ahead where there was police barricading/ barriers. When I reached near the barricades, I asked the police officials the way to the PS and they guided me, then we went to Keshavpuram Police station where I gave them my complaint with regard to the incident. My statement in this regard is Ex.PW5/A bearing my signatures at point A. I also told the police that I could identify the boy who was on the bike. I can identify the said boy even today. At this stage the witness has pointed out towards the accused Arjun as the boy who had come on the motorcycle and snatched his bag and the accused Dharmender who was his coemployee and was present with him.
St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 72
After recording my statement and the FIR, the police went with us at the place where the incident had taken place and I showed them the exact place where the bike had hit my motorcycle and police found some pieces of broken head lights. The police stopped me and Dharmender at the PS and did not permit us to contact anybody. The police had taken me around the area for search of the accused but we could not locate anybody. I had shown the exact site to the police and also showed them the place and the directions from where the accused had come and the spot where the incident had taken place. I also showed them the house of the customer at CP109, Pitampura from where we had collected the payment and the petrol pump from where we had collected the petrol and the show room of the PP jewelers. The police had interrogated various persons at all these places. At the house of customer at Pitampura, the police had spoken to one lady who was the lady whose name I do not recollect. The police also checked the petrol pump for CCTV footage but the camera had not caught the visuals from the spot from where we had come as it was installed at other side. The police then saw the CCTV footage of the camera installed outside the PP jewelers showroom at Pitampura which confirmed my presence along with Dharmender. We then returned to the police station. Thereafter I used to regularly go the PS Keshavpuram to find out the progress of the case.
Date I do not recollect but it was in the month of April, 2013, I was called to the PS as there was information that perhaps the police had apprehended some persons in the case. I went to the police station, there I saw one boy who was sitting in the police station and I confirmed that the said boy was the same person who had committing the incident of robbery of Rs 4 lacs St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 73 15 thousand with me on 26.12.2012 by putting a gun/ pistol on me. After I identified the said boy, I was informed by the police that the name of the said boy was Arjun. He is the same boy who is present in the court today. I also saw Dharmender sitting in the police station and it was then that I was informed by the police that Dharmender was mixed up with the said boy Arjun and the entire incident had been preplanned.
I was again called to the PS on 17.04.2013 when I joined the investigations along with police. I was taken to Pullbangash i.e. Roshanara road to the shop of Arjun and from a peti kept inside his shop, the police recovered one key and one mobile phone and took the same into possession by converting the same into pullanda with the help of a while cloth and sealed the same, the details of which I cannot tell and thereafter seized the same vide memo EX PW 5/B bearing my signatures at point A. The police then took me to Roshanara park and from the bushes they recovered one pistol and I identified the said pistol as the one which the accused has shown to me. They prepared the sketch of the same vide EX PW 5/C bearing my signatures at point A. Thereafter they took the pistol into possession with the help of a white cloth and sealed the same with the seal whose details I do not recollect. Thereafter they seized the pistol vide memo EX PW 5/D bearing my signatures at point A. Thereafter I was relieved from the spot.
At this stage, Ld. APP for the state, seeks permission to put leading questions to the witness as he is not giving complete details.
Heard, Permission granted.
It is correct that the bike on which I and Dharmender had gone to receive the payment was St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 74 bearing No. DL6SQ6373. It is correct that after I had shown the spot of the incident to the police a site plan EX PW 5/E was prepared (after seeing the site plan the witness had stated that it is correct as per the site shown by him). It is correct that when I went to the PS on 17.04.2013, I had seen the accused Arjun sitting in the PS when I had identified him. Vol. I had earlier identified him in the PS on 12.04.2013....."
(89) Mukesh has been crossexamined at length and in his cross examination he has reaffirmed that he has earlier stated in his examination in chief. He has also identified the mobile make Nokia of red and black colour having IMEI No. 358290/03/354981/2 as the one which was recovered from the peti kept in the shop of Arjun, which mobile phone is Ex.P2. He has also identified the air gun/ toy pistol which is Ex.P1 as the same which was shown to him by the accused Arjun. It has been observed by this court that the pistol in question is not a toy pistol but is an improvised version of the country made pistol in which the cartridge can be put manually i.e. one at a time but cannot be operated as the trigger is not working. Further, he has identified the key Ex.P3 which was recovered from the shop of accused Arjun from a peti. In his crossexamination Mukesh (PW5) has stated that he does not recollect the mobile number of the accused Dharmender but has voluntarily added that Dharmender normally used to keep two mobile phones and while he (witness) made a call at 100 number from his mobile phone, Dharmender make a call at showroom of PP Jewelers from his own St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 75 mobile phone and informed them about the incident. He has admitted in his crossexamination that he did not get any sketch of the assailants prepared but has voluntarily informed that he had told the police about the description of the assailant. He has also explained that when Arjun was apprehended by the police, he identified him in the Police Station and has stated that he had shown the injury mark on the hand of Arjun to the police. (90) It is writ large that the victim Mukesh has identified the accused Arjun in the case. Initially the accused Arjun had refused to take participate in Judicial Test Identification Parade but the witness Mukesh has proved that he had identified the accused Arjun later in the Police Station that he has admitted having gone to the shop of the accused Arjun along with the police officers from where the mobile, key and the toy pistol were got recovered though he does not admit the presence of accused Arjuna at the time of the alleged recovery which was pursuant to the disclosure of accused Arjun. I may observe that the accused Arjun was not known to the witness previously and there is no history of animosity between then and hence there is no reason to disbelieve the testimony of Mukesh in so far as the identification of accused Arjun as the assailant who had come on the motorcycle and hit him on three occasions and thereafter snatched his sling bag containing the cash amount of Rs.4,15,000/ is concerned. Here, I may also add that the testimony of this witness Mukesh (PW5) finds due corroboration from the Electronic Evidence which has been placed before this Court by the Investigating Agency (being discussed separately) which confirms the St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 76 location of not only of the accused Dharmender but also of the coaccused Arjun at the time of the incident and supports the oral testimony of witness Mukesh in so far as the incident is concerned and also lends credence to his testimony in so far as the identification of accused Arjun is concerned. In so far as the accused Dharmender is concerned there is no dispute to the same. He was working with PP Jewelers along with Mukesh and the fact regarding his employment and being on duty with Mukesh stands established which fact he does not himself dispute.
(91) Hence, under the given circumstances, I hereby hold that in so far as the Ocular Evidence is concerned the victim Mukesh has not only proved the manner in which the incident of robbery has taken place but has also explained the route taken by them at the time of the incident and also the specific conduct of the accused Dharmender from time to time which conduct was suspicious. He has also explained the proceedings which took place later as regards the registration of FIR and the proceedings relating to search of the accused and later after the accused Arjun was arrested the proceedings conducted by the police as regards the recovery of the mobile phone, toy pistol and key. There is no reason to doubt the version given by Mukesh. I find the testimony of this witness Mukesh reliable, credible and truthful and I hold that the prosecution has been able to successfully establish and prove the incident of robbery and the allegations against the accused Arjun of having committed robbery after keeping the victim Mukesh under fear of death.
St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 77 (92) In so far as the accused Dharmender is concerned, the allegations against him are of having conspired with Arjun. He was the one who had been passing information to Arjun throughout and informed him about the place and the route being taken by them and the spot where the incident had taken place and also facilitated the same when he took the bag from Mukesh and handed it over to Arjun. This fact finds due confirmation from the electronic evidence on record (being discussed separately). Hence, I also hold that the victim Mukesh has not only identified the accused Dharmender who was accompanying him at the time of the incident but also the specific allegations against him.
Arrest of the accused Arjun and Dharmender, Disclosure and Recovery:
(93) The case of the prosecution is that after the registration of the FIR the local police had tried to search for the assailant but they could not trace him. It was only pursuant to a secret information that the accused Arjun was apprehended on 12.4.2013 and pursuant to his sustained interrogation he disclosed about the involvement of the accused Dharmender whom nobody had suspected. Pursuant to his disclosure statement the accused Arjun got recovered the a sum of Rs.1,00,000/ from his house i.e. Katra No. 54, Indra Market, Subzi Mandi, Ghanta Ghar, Delhi which he disclosed was out of the robbed amount. Thereafter the accused Dharmender was also arrested and pursuant to his disclosure statement the accused Dharmender got recovered Rs.1,60,000/ from his house at T85, St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 78 Sita Saran Colony, Subzi Mandi Ghanta Ghar, Delhi which amount he disclosed was out of the robbed amount.
(94) Ld. Defence Counsel has vehemently argued that the disclosure statements of both the accused are inadmissible in evidence being hit by the provisions of Section 25 of Evidence Act. On the other hand the Ld. Addl.
PP for the State has argued that the disclosure statements of the accused are admissible in evidence as per the provisions of Section 27 of Evidence Act since it disclose the discovery of relevant facts.
(95) I have considered the rival contentions but before coming to the merits of the argument, it is necessary to first briefly discuss the relevant provisions of law. As per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer. (96) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:
a) Anything, state of things, or relation of things, or capable of being perceived by the senses,
b) Any mental condition of which any person is conscious. St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 79 (97) It further provides five illustrations as to what would constitute a fact which are as under:
1. That there are certain objects arranged in a certain order in a certain place, is a fact
2. That a man heard or saw something, is a fact.
3. That a man said certain words, is a fact.
4. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
5. That a man has a certain reputation, is a fact.
(98) A cojoint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles".
(99) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 80 place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. KingEmperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under: "Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......"
".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S. 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 81 much of such information........... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."
"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.
This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
(100) After considering the settled principles the Hon'ble Apex Court observed as under:
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 82 of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 83 this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence....."
(101) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.
The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 84 secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence..."
(102) In the said case the Hon'ble Supreme Court further went to explain that:
"..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
(103) In the recent past the Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 85 State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact" should be read with the definition of "fact" as contained in Section 3 of the Evidence Act which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be confirmatory in character guaranteeing the truth of the information given to which facts the police officer had no access earlier which also includes recovery of material object. The Hon'ble Court further observed that so much of the information as relates distinctly to the fact thereby discovered is admissible. (104) Applying the settled principles of law to the facts of the present case, I may observe that in so far as the apprehension and arrest of the accused Arjun is concerned the said fact has been duly proved by Ct. Jaiveer Singh (PW11), Ct. Jogender Singh (PW12) and ASI Ashok Kumar (PW14). No doubt, no public witness had been joined at the time of recording of his disclosure statement, yet I may observe that this will not be fatal to the case of the prosecution since it is common experience that public persons are generally reluctant to join police proceedings and there is general apathy and indifference on the part of public to join such proceedings. This position of law was reiterated in Aslam and Ors. (Mohd.) Vs. State reported in 2010 III AD (Delhi) 133.
St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 86 (105) It was observed by Hon'ble High Court that reluctance of the citizens to join police proceedings is well known and needs to be recognized. It cannot be disputed that public does not want to get dragged in police and criminal cases and wants to avoid them, because of long drawn trials and unnecessary harassment. Similar view was taken in Manish vs. State, 2000 VIII AD (Scheduled Caste/ Scheduled Tribes (Prevention of Atrocities) Act, 1989) 29 and in A. Bhai vs. State, AIR 1989 SC 696, where it was held that we cannot be oblivious to the reluctance of the common man to join such raiding parties organized by the police, lest they are compelled to attend police station and Courts umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit. (106) Moreover, there is no reason to disbelieve the testimonies of police officials regarding recovery of robbed amount at the instance of accused persons. Their testimonies cannot be rejected merely because they happen to be police officers. As observed by the Hon'ble Supreme Court in Tahir Vs. State, reported in (1996) 3 SCC 338, no infirmity attaches to the testimony of police officials merely because they belong to the police force. It was observed in the case of Aner Raja Khima Vs. The State of Saurashtra, reported in AIR 1956 SC 217 that the presumption that a person acts honestly and legally applies as much in favour of police officers as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof. These two St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 87 authorities were also relied upon by Hon'ble High Court in Aslam & Ors. (Mohd.) Vs. State, reported in 2010 III AD (Delhi) 133. (107) Therefore, I hold that the non joining of independent public witnesses at the time of recording the disclosure statement of the accused will not be fatal to the prosecution case. The perusal of the disclosure statement of the accused Arjun would show that prior to the accused Arjun having disclosed about the involvement of accused Dharmender none had any suspicion on him. It was not within the knowledge of the Investigating Agency or in the knowledge of victim Mukesh that Dharmender had anything to do with the offence. Rather, he himself was one of the eye witness to the incident but it was only pursuant to the disclosure made by accused Arjun when the Call Detail Records of the mobile numbers being used by the victim was obtained that the fact regarding the prior meeting of mind and the involvement of accused Dharmender came to light. The electronic evidence not only confirms the route taken by the accused Arjun but also confirms his location at various places at different point of time and confirms the oral testimony of Mukesh that at 17:28:27 the accused Arjun was in the are of Waziurpur Industrial Area covering the Prembari Pull where the incident in question took place. Similarly the Electronic Record of mobile phone used by accused Dharmender corroborates the oral version of Mukesh and confirms the route taken by him i.e. from Pitampura to Wazirpur Industrial Area and the time at which the location of Dharmender is shown at Wazirpur Industrial Area i.e. the area/ spot where in the incident had taken place is St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 88 coincides with that of Arjun. Throughout this period the accused Arjun and Dharmender were in constant touch with each other which confirms that Dharmender was passing on the entire information regarding the route being taken by them and their position to enable Arjun to stop them in the way. This in fact is the disclosure of relevant fact as contemplated under Section 27 of Evidence Act and is admissible in evidence. Not only was the identity of the coaccused Dharmender confirmed which finds independent confirmation from the electronic date but so also was his involvement and aspect of conspiracy independently established from the same. (108) Further, pursuant to his disclosure the accused Dharmender got recovered a sum of Rs.1,60,0000/ from the box kept in his room and the accused Arjun got recovered a sum of Rs.1,00,000/ from the single bed kept in his house i.e. Katra No. 54, Indira Market, Ghanta Ghar, Delhi. They disclosed that the said amount so got recovered by them was the amount out of the robbed amount. The recovery of this amount is again a discovery of relevant fact and is admissible in evidence as contemplated under Section 27 of Evidence Act. The defence so offered by the accused Dharmender and Arjun explaining the amount so recovered from this possession as belonging to them, does not inspire confidence of this Court and appears to have been created at a much later stage, which defence I hereby reject. (109) This being the background, I hereby hold that the disclosure statements made by the accused Dharmender and Arjun are admissible in evidence first qua the involvement of Dharmender as the person who was St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 89 constantly keeping a recce and passing on the information to the accused Arjun and second to the extent of recovery of the robbed amount. The same is highly incriminating qua the accused and is a strong pointer towards their guilt.
Charges established:
(110) In view of my discussion as aforesaid, I hereby hold that on the basis of the direct ocular evidence in the form of testimony of Mukesh, finding due confirmation from the electronic evidence and circumstantial evidence on record, the prosecution has been able to successfully prove and establish the charges against the accused Dharmender and Arjun of having conspired with each other to commit robbery for which both the accused Dharmender and Arjun are hereby held guilty of the offence under Section 120B r/w 392 IPC.
(111) The prosecution has further been able to prove and substantiate the allegations against the accused Arjun that pursuant to the criminal conspiracy he had committed robbery of Rs.4,15,000/ upon the victim Mukesh for which the accused Arjun is held guilty of the offence under Section 392 Indian Penal Code.
(112) The prosecution has also been able to prove and substantiate the allegations against the accused Dharmender of having dishonestly received or retained a stolen property i.e. Rs.1,60,000/ knowing or having reasons to believe the same to be stolen property belonging to PP Jewellers, for which St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 90 he is hereby held guilty of the offence under Section 411 Indian Penal Code.
(113) In so far as the charge under Section 397 Indian Penal Code against the accused Arjun is concerned, firstly the recovery of the toy pistol has not been proved by the prosecution but assuming that the toy pistol was got recovered by the accused Arjun as alleged, then even otherwise it is evident that the weapon used in the offence was an improvised version of the country made pistol in which the cartridge could be put manually i.e. one at a time but could not be operated as the trigger was not working and hence it cannot be termed as a 'deadly weapon'. That apart no evidence has been led by the prosecution to show that the pistol which the accused possessed at the time of incident was a "deadly weapon". Section 397 IPC envisages that if at the time of robbery the offender uses any deadly weapon, the imprisonment with with such offender shall be punished shall not be less than seven years. Thus, what is essential to satisfy the word "uses" for the purpose of this Section is that the robbery being committed by an offender, who was armed with a deadly weapon, which was within the vision of the victim, so as to be capable of creating terror in the mind of the victim. This is a question of fact to be proved by the prosecution that the pistol used by the offender was a deadly one. Reference in this regard is made to the case of Babulal Jairam Maurya & Anr. Vs. State of Maharastra reported in 1993 Crl. L.J. 281 (wherein under similar circumstances in case of a toy St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 91 pistol it was held that the provisions of Section 397 IPC do not stand attracted) and also to the case of Ramu @ Raju Vs. State, Crl. Appeal No. 874/2009 and Crl. Appeal No. 4/2010, decided on 3.12.2010 by Hon'ble Mr. Justice A.K. Pathak. This being the background, the accused Arjun is hereby acquitted of the charge under Section 397 Indian Penal Code. (114) In so far as the charge under Section 411 Indian Penal Code against the accused Arjun is concerned, he has been identified as the person who had committed the robbery and hence though legally and technically he is guilty of the offence under Section 411 IPC but the ingredients of Section 411 IPC being covered within the offence of Robbery as defined under Section 390 Indian Penal Code, the accused Raj Kumar having been identified as the person who committed the robbery, the same stands already covered under the definition of Robbery (under Section 390 IPC).
FINAL CONCLUSIONS:
(115) 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:
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 St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 92 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.
5. They should exclude every possible hypothesis except the one to be proved; and
6. 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.
(116) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. On the basis of the evidence on record the following aspects stand established:
➢ That Mukesh and the accused Dharmender were working as Field Boys with PP Jewelers Karol Bagh and their job was to collect payment and serve the orders.
➢ That on 26.12.2012 Mukesh received a call from Dharmender who told him that they had to go to the house of customer at Pitampura for delivery of some order at Pitampura and for collecting payment of Rs.3,64,000/.
➢ That Dharmender also gave his carry bag of the company of black color which was like a school bag to Mukesh and compelled him to St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 93 carry the same on his back and also made Mukesh to drive the motorcycle.
➢ That thereafter they went to the house of the customer Smt. Saroj Bansal at CP109 Pitampura and after giving the order, they collected the payment of Rs.3,64,000/ and while Mukesh was still counting the money, Dharmender went to washroom.
➢ That they left the house of the customer Smt. Saroj Bansal and he was told by Dharmender that they had to go to Pitampura Showroom. ➢ That when they reached Pitampura showroom and while Mukesh was parking the bike Dharmender took the bag containing the payment from him and entered inside while Mukesh stopped for few seconds to wash his face outside.
➢ That when Mukesh reached the cash counter, he found that Dharmender had already collected the payment from the cash counter to the tune of Rs.51,000/ which he had already kept in the carry bag. ➢ That when Mukesh went to the cash counter, he spoke to Mr. Anil at the cash counter regarding the billing when Dharmender suddenly came from behind and told him that he had already collected the payment and they should move after which they left the showroom. ➢ That Mukesh showed his reluctance to Dharmender to drive the motorcycle since he was carrying the payment in the bag but Dharmender insisted that he should drive the motorcycle and also carry the payment bag and he forcibly made him to carry the bag on St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 94 his back.
➢ That thereafter when they started from the showroom and reached near the red light, Mukesh told Dharmender that they can move from the left side as there was a residential colony and it would be safer but Dharmender insisted upon turning to the right side. ➢ That during this period Dharmender also received a call from somewhere and Dharmender was telling the other person that he had just reached Kohat Enclave.
➢ That Dharmender asked Mukesh that there was no petrol in the bike and they should go to the petrol pump for getting the petrol but Mukesh told him that the person who had given them his bike i.e. Manoj who was also a field boy had told him (Mukesh) that there was sufficient petrol for going up and down.
➢ That Dharmender still insisted that they should go to the petrol pump on which he (Mukesh) told him that he had only thirty rupees and they can only fill the petrol for thirty rupees after which they went to the petrol pump in the same area.
➢ That at about 55:30 PM after taking the petrol they then went towards the Prembari Pull and while they were on the pull itself, a black color Pulsor bike came from behind and hit him from the side as a result of which he became unbalanced but still managed to be stable on the bike.
St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 95 ➢ That the said person on the bike (i.e. accused Arjun) again hit him from the side but he was again stable but third time when the said boy hit him, the motorcycle became totally unbalance and both of them fell down and his bike hit the wall on the front side and the head light etc. were broken and while he was on the bike and had fallen on the ground, Dharmender had got up.
➢ That accused Arjun who had hit them with the bike had fallen down a little ahead from their bike.
➢ That the accused Arjun in the meanwhile got up and took out his helmet and started hitting Mukesh on his head with his helmet as a result of which the helmet which he (Mukesh) was wearing also broke.
➢ That the accused Arjun showed Mukesh his hand saying that he had been hurt and thereafter there were arguments between them. ➢ That the accused Arjun then asked Mukesh to hand over his bag to him which he refused and during this period while there was an argument Dharmender did not help Mukesh at all.
➢ That the accused Arjun took out a gun from under his shirt which he had tucked in the front side of his pant and pointed the said gun on the stomach of Mukesh and in order to save himself there was an altercation between them.
➢ That after some time Dharmender intervened and asked the boy (i.e. accused Arjun) not to put the gun on Mukesh and the accused Arjun St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 96 then pulled the bag from the back of Mukesh when one of the grips of the bag broke.
➢ That Dharmender kept on telling Arjun not to shoot while Mukesh was struggling to free himself and then Dharmender took out the bag from his shoulder and gave it to the boy asking him not to shoot him (witness) "gole mat mariyo" after which the accused Arjun took the bag and went away on his bike.
➢ That on the basis of the statement of Mukesh the present case was got registered and investigations were kicked of.
➢ That on 12.04.2013 pursuant to a secret information the accused Arjun was apprehended from CBlock, Keshav Puram and during interrogation he disclosed his involvement in the present case and also the involvement of his associate Dharmender.
➢ That at the instance of accused Arjun, the accused Dharmender was also arrested and on interrogation he disclosed his involvement in the present case.
➢ That pursuant the accused Dharmender got recovered cash amount of Rs.1,60,000/ from the iron box lying in the room. ➢ That thereafter, accused Arjun led the police party to his house near Katra no. 54 Indira market, Sabji Mandi, Ghanta Ghar, Delhi from where he got recovered cash of Rs.1,00,000/ from residential room. (117) The ocular evidence in the form of testimony of victim Mukesh which finds due confirmation and corroboration from the electronic St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 97 evidence and other circumstantial evidence on record conclusively connects the accused Dharmender and Arjun with the offence. (118) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
(119) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by electronic evidence and the witness of the prosecution have been able to built up a continuous link.
(120) This being the background, I hereby hold that on the basis of the direct ocular evidence in the form of testimony of Mukesh, finding due confirmation from the electronic evidence and circumstantial evidence on St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 98 record, the prosecution has been able to successfully prove and establish the charges against the accused Dharmender and Arjun of having conspired with each other to commit robbery for which both the accused Dharmender and Arjun are hereby held guilty of the offence under Section 120B r/w 392 IPC.
(121) The prosecution has further been able to prove and substantiate the allegations against the accused Arjun that pursuant to the criminal conspiracy he had committed robbery of Rs.4,15,000/ upon the victim Mukesh for which the accused Arjun is held guilty of the offence under Section 392 Indian Penal Code. The accused Arjun is however acquitted of the charge under Section 397 Indian Penal Code.
(122) The prosecution has also been able to prove and substantiate the allegations against the accused Dharmender of having dishonestly received or retained a stolen property i.e. Rs.1,60,000/ knowing or having reasons to believe the same to be stolen property belonging to PP Jewellers, for which he is hereby held guilty of the offence under Section 411 Indian Penal Code.
(123) Be listed for arguments on sentence on 28.4.2014.
Announced in the open court (Dr. KAMINI LAU)
Dated: 23.4.2014 ASJII(NW)/ ROHINI
St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 99
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 142/2013 Unique Case ID: 02404R0201512013 State Vs. (1) Arjun S/o Late Sh. Gulab Chand R/o Katra No. 54, Indira Market Subzi Mandi, Ghanta Ghar, Delhi Also at: Village Aasauji Bazar, Distt.: Gorakhpur, Uttar Pradesh.
(Convicted) (2) Dharmender S/o Ganga Ram R/o T85 and T41 Sita Saran Colony, Sabzi Mandi, Ghanta Ghar, Delhi.
Also at: VPO & PS : Chhapia, Distt.: Gonda, Uttar Pradesh.
(Convicted)
FIR No. : 358/2012
Police Station : Keshav Puram
Under Section : 392/397/411/120B Indian Penal Code
Date of conviction: 23.4.2014
Arguments concluded on: 28.4.2014
Date of Sentence: 30.4.2014
APPEARANCE:
Present: Sh. Tofeeq Ahmed, Ld. Addl. PP for the State.
Convicts Arjun and Dharmender in Judicial Custody with Sh. P. K. Singhania, Advocate.
St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 100 ORDER ON SENTENCE:
As per the allegations, on 26.12.2012 at Delhi the accused Arjun and Dharmender hatched a criminal conspiracy to commit robbery of cash of Rs.4,15,000/ belonging to PP Jewellers and thereafter at about 5:30 PM at Railway Bridge, Road No. 37, Keshav Puram, Delhi, and thereafter in pursuance of the above said conspiracy, the accused Arjun committed robbery of Rs.4,15,000/ belonging to the PP Jewellers from the possession of complainant which was facilitated by Dharmender an employee of PP Jewelers. It is also alleged that the accused Arjun used a pistol while committing the robbery on the above said date, time and place. It is further alleged that on 12.04.2013 at T85, Sita Saran Colony, Subzi Mandi, Ghanta Ghar, Delhi, the accused Dharmender dishonestly received or retained a stolen property i.e. Rs.1,60,000/ knowing or having reasons to believe the same to be stolen property belonging to PP Jewellers. It is further alleged that on 12.04.2013 at Katra No. 54, Indra Market, Subzi Mandi, Ghanta Ghar, Delhi, the accused Arjun dishonestly received or retained a stolen property i.e. Rs.1,00,000/ knowing or having reasons to believe the same to be stolen property belonging to PP Jewellers.
On the basis of the testimonies of the various prosecution witnesses particularly the victim Mukesh and on the basis of the testimonies of other witnesses, the electronic and other circumstantial evidence on record this Court vide a detail judgment dated 23.04.2014 held the accused Arjun and Dharmender guilty of the offence under Section 120B r/w 392 St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 101 Indian Penal Code. Further, the accused Arjun has been held guilty of the offence under Section 392 Indian Penal Code. The accused Dharmender has also been held guilty of the offence under Section 411 Indian Penal Code. The accused Arjun has however been acquitted of the charges under Section 397 and 411 IPC.
Heard arguments on the point of sentence. The convict Arjun is stated to be a young boy of 23 years. He is an Automobile Engineer by profession. The convict Dharmender is stated to be a young boy of 24 years of age having a family comprising of mother, father, three younger brothers. He is 9th class pass and was doing the job of field boy (mobile repairing) at the time of his arrest.
The Ld. Counsel for the convicts has vehemently argued that both the convicts are young boys and belong to poor families having no previous criminal involvements. It is prayed that a lenient view taken against the convicts. On the other hand the Ld. Addl. PP for the State has prayed for a stern view keeping in view the allegations involved.
I have considered the rival contentions. I may observe that in the recent past Delhi has experienced a spurt and rise in the incidents of snatching, robbery, dacoity, murder and other kinds of crime. There has been a 43.6 percent increase in Delhi's crime graph in 2013 over 2012. A staggering 73,958 cases were registered under the Indian Penal Code in 2013 up from 51,479 in the previous year.
St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 102
The deteriorating law and order problem of the City is a matter of serious concern and immediate steps are required to be taken at all levels for ensuring security and safety of the citizens. Instances of young persons getting involved in criminal activities of robbing innocent persons by putting them under threat of death, are also on rise. Criminals are unhesitatingly and indiscriminately using dangerous arms/ weapons on helpless victims who may or not offer any resistance thereby spreading terror in the society and adversely affecting social order and the faith of people in the system. The courts are required to find answers to the new challenges facing the society and to mould the sentencing system to meet these challenges. The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should be conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of the crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is desirability to keep the offender out of circulation.
This is a case where I find that it should be treated as an exception and a lenient view should be taken against both the convicts Arjun and Dharmender who are young hardworking boys self employed at the time of the incident belonging to poor families. They have no previous history of crime. They were good friends and the circumstances compelling both these St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 103 youngsters planning the offence was the life threatening condition of the mother of accused Arjun who is now no more and was suffering from HIV Positive and the doctors at Hindu Rao had referred to private hospitals where the doctors refused to treat her unless the family of Arjun was able to shellout money for the treatment and hence it was under these circumstances that he urgently required money for the treatment of his mother and his friend Dharmender assisted and facilitated him in the same. Poverty is a big curse for humanity and in my considered opinion these youngsters have already suffered enough on account of their continued incarceration after their arrest. There are strong chances of their reformation and any harsh view by this Court at this stage would spoil their entire future and hence a lenient view is taken against the convicts. I award the following sentences to the convict Arjun:
1. For the offence under Section 120B r/w 392 Indian Penal Code the convict shall undergo Rigorous Imprisonment for a period of One Year and Eighteen Days (i.e. period already undergone by him) and fine to the tune of Rs.500/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of Two Days.
2. For the offence under Section 392 Indian Penal Code the convict shall undergo Rigorous Imprisonment for a period of One Year and Eighteen Days (i.e. period already undergone by him) and fine to the St. Vs. Arjun & Anr., FIR no. 358/12, PS Keshav Puram Page No. 104 tune of Rs.2,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Week.
Both the sentences shall run concurrently.
In so far as the convict Dharmender is concerned, I award the following sentence to him:
1. For the offence under Section 120B r/w 392 Indian Penal Code, the convict shall undergo Rigorous Imprisonment for a period of One Year and Eighteen Days (i.e. period already undergone by him) and fine to the tune of Rs.500/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of Two Days.
2. For the offence under Section 411 Indian Penal Code the convict shall undergo Rigorous Imprisonment for a period of One Year.
Both the sentences shall run concurrently.
Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period already undergone by them, as per rules.
The convicts have been informed that they have a right to prefer an appeal against the judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
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One copy of the judgment and order on sentence be given to the convicts free of costs and one copy of order on sentence be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 30.04.2014 ASJ (NW)II: ROHINI
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