Delhi District Court
State vs . (1) Ravi on 30 April, 2015
IN THE COURT OF SH. REETESH SINGH, ASJ-02/FTC
NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
Case ID No. 02403R0104502011
Session Case No. 51/13
State vs. (1) Ravi
S/o. Sh. Shyam Thakur,
R/o. Z-99, Dayalsar Road,
Uttam Nagar, New Delhi.
(2) Kamal Kishore Sabharwal
S/o. Sh. Tevender Sabharwal
R/o. H. No. 77A, Shiv Puri, Deenpur,
Najafgarh, Delhi.
FIR no. 406/2010
PS: Bindapur
U/s: 392/397/411/482/34 IPC
Date of institution of the case : 17.09.2011
Date on which judgment reserved : 29.04.2015
Date of announcement of judgment : 30.04.2015
AND
Case ID No. 02403R0103322012
Session Case No. 52/2013
State vs. Kamal Kishore Sabharwal
S/o. Sh. Tevender Sabharwal
R/o. H. No. 77A, Shiv Puri Deenpur,
Najafgarh, New Delhi.
FIR no. 33/2011
PS: Special Cell
U/s: 411/34 IPC & 25 Arms Act
Date of institution of the case : 31.01.2012
Date on which judgment reserved : 29.04.2015
Date of announcement of judgment : 30.04.2015
State vs. Ravi & Anr, FIR No. 406/10, PS Bindapur and
State vs. Kamal Kishore Sabharwal, FIR No. 33/11, PS Special Cell 1/19
JUDGMENT
1. This judgment shall decide the trials arising out of two FIRs viz. FIR No. 406 of 2010, PS Bindapur in which charges have been framed against the accused Ravi and Kamal Kishore Sabharwal @ Prince under Sections 392/397/411/482 and 34 of Indian Penal Code (hereinafter referred to as 'IPC') and FIR No. 33 of 2011, PS Special Cell in which charge has been framed against the accused Kamal Kishore Sabharwal @ Prince under Section 25 of the Arms Act.
2. Upon completion of investigation of FIR No. 406 of 2010, PS Bindapur, charge-sheet was filed in the Court of Sh. Sushant Changotra, MM, Dwarka Courts on 22.07.2011. Upon committal, the charge-sheet was received by way of allocation in the Court of Sh. Virender Bhatt, Ld. ASJ Dwarka Courts on 17.09.2011.
3. Charge-sheet in respect of FIR No. 33 of 2011, PS Special Cell was filed in the Court of Sh. Vinod Yadav, then CMM, Delhi. As the said matter was connected with FIR No. 406 of 2010, PS Bindapur, the Ld. District & Sessions Judge vide order dated 24.01.2012 directed that the trial of FIR No. 33 of 2011 be proceeded in the same Court where the trial of FIR No. 406 of 2010 was pending. Hence, the file of FIR No. 33 of 2011 was sent to the Court of Sh. Virender Bhatt, ASJ for trial along with FIR No. 406 of 2010.
4. It is in this manner that both the FIRs are before this Court and are therefore being decided by a common judgment. It may be however be noted that evidence in both matters has been recorded separately.
State vs. Ravi & Anr, FIR No. 406/10, PS Bindapur and State vs. Kamal Kishore Sabharwal, FIR No. 33/11, PS Special Cell 2/19 FACTS IN FIR NO. 406 OF 2010 PS BINDAPUR
5. The case of the prosecution is that on 30.12.2010 the complainant Dinesh Kapoor, a resident of Uttam Nagar, Delhi gave a hand written complaint to the SHO PS Bindapur stating that was going at night at 11pm from Uttam Nagar Terminal in his white coloured Maruti Suzuki Swift Desire Car bearing registration no. DL-9CY-0683. He stated that when he reached near JJ Colony Primary School, he stopped his car to urinate and started talking on his mobile phone. He left the keys of his car inside the car. In this midst, two unknown persons fled with his car from that place. On the basis of the complaint dated 30.12.2010 FIR No. 406 of 2010 was registered in PS Bindapur under Section 379 of the IPC.
6. The said FIR was assigned for investigation to SI Devender Singh. Wireless message of the theft was flashed, information given to NCRB and Zipnet and site plan prepared. After about three months of the registration of the said FIR, on 08.03.2011 a supplementary statement of Dinesh Kapoor was recorded by SI Devender Singh and Section 379 of the IPC was substituted with Section 392 / 34 of the IPC. In his supplementary statement dated 08.03.2011, Dinesh Kapoor stated that his earlier statement / complaint given on 30.12.2010 was not correct and he stated that in the night of 30.12.2010 when he reached Uttam Nagar Terminal at about 10:30-10:45pm in his car, he stopped at a fish vendor (fish rehri) and ate fish and then proceeded towards his factory. When he reached near Primary School JJ Colony on Himalaya Sagar Restaurant Road, he stopped his car for two minutes. The window driver's side was open and he kept his mobile phone on charging. In this midst two unknown persons came and one person put a gun on his head and the other person opened the door of his car by putting his hand inside. Both these persons State vs. Ravi & Anr, FIR No. 406/10, PS Bindapur and State vs. Kamal Kishore Sabharwal, FIR No. 33/11, PS Special Cell 3/19 threatened him with their pistol and forced him to sit on the front passenger seat. One of the persons sat on the rear seat of the car and the other person sat on the driver's seat and started driving the car.
7. Dinesh Kapoor further stated in his supplementary statement that the person sitting on the rear seat put a gun on his head and the car was driven to Mayapuri. On the way the said two persons snatched Rs.6,000 to Rs.7,000/- from him and also took his wallet which contained his ATM card and Voter I-Card. On the way they stopped the vehicle at a PNB ATM in Mayapuri Junk Market and tried to take out money from the ATM but came back as the said ATM was not working. These two persons then took the car to the ATM of HDFC Bank where the person on the rear seat with the gun took the complainant inside the ATM and forced him to withdraw Rs.15,000/- and took the same. Thereafter that person ran back inside the car and both the persons fled with the car. Dinesh Kapoor further stated that the person sitting on the rear seat was aged about 22- 23 years, of short height and dark complexion. The person who was sitting on the driver's seat was aged about 30 years, average height and fair complexion. Both the persons were clean shaved and Dinesh Kapoor said that he could recognize them if they were brought in front of him.
FACTS IN FIR No. 33 of 2011 PS SPECIAL CELL
8. In the meanwhile on 18.05.2011 at 4:15pm information was received by SI Ramesh Dabas of Special Cell Rohini from a secret informer that two boys with a looted white coloured Maruti Swift car no. 2577 would be coming with the car from D-Block Vikas Puri at about 5- 6pm via ganda nalla Road and would be going towards Najafgarh and who may also be in possession of illegal arms. This information was recorded by SI Ramesh Dabas vide DD No. 23 dated 18.05.2011 and was State vs. Ravi & Anr, FIR No. 406/10, PS Bindapur and State vs. Kamal Kishore Sabharwal, FIR No. 33/11, PS Special Cell 4/19 discussed with ACP Special Cell before whom the secret informer was produced. On the directions of the ACP a police team under the supervision of Insp. Upender Solanki and comprising of SI Ramesh Dabas, ASI Naresh Kumar, HC Krishan Kumar, HC Anil Kumar, HC Preet Singh, HC Vinod Kumar, Ct Rakesh and Ct Harminder Singh was constituted. Information received was shared by Insp. Upender Solanki with the police team and about 4:45pm, the police team left the office of the Special Cell by Government Gypsy DL-1CM-1346 driven by HC Anil Kumar and Government Motorcycle DL-1SS-3732 driven by Ct Krishan Kumar with pillion Ct Harminder Singh along with arms and ammunition issued as per the Malkhana register. DD Entry No.25 regarding the departure of the police team was recorded and the secret informer accompanied the police team. At about 5:40pm, the police team reached near Keshopur Bus Depot and 4-5 persons of the public were tried to be associated with the police team but all of the them refused.
9. Without wasting further time, the police team along with informer reached DAV School near Ganda Nalla D-Block Vikas Puri and barricaded the spot at the corner of DAV School. The the police gypsy was concealed behind the wall of the school. As per the information at about 6:30pm, one white coloured Maruti Swift car was seen coming from the direction of Vikas Puri which was identified by the secret informer. The said vehicle was blocked in its path by use of the government gypsy vehicle. The Maruti Swift vehicle was found to be having number plate of no. DL- 3CBL-2577 and both the persons in said vehicle were identified by the informer. Both these persons were apprehended by member of the police team and taken out of the said vehicle.
10. One of these persons was Kamal Kishore Sabharwal. His State vs. Ravi & Anr, FIR No. 406/10, PS Bindapur and State vs. Kamal Kishore Sabharwal, FIR No. 33/11, PS Special Cell 5/19 cursory search was conducted by HC Vinod Kumar who found one country made loaded pistol from the right 'dubh' of the trouser of this accused and one live cartridge was also found from the left pocket of his trouser. The cursory search of the other accused Ravi was taken by Ct Harminder Singh. The country made pistol and live cartridge recovered from the accused Kamal Kishore Sabharwal was handed over by HC Vinod Kumar to SI Ramesh Dabas. SI Ramesh Dabas checked the pistol and found one live bullet inside the pistol. The sketch of the pistol and bullets was prepared, their dimensions measured and characteristics noted. Thereafter they were kept in one plastic jar and sealed with the help of tape and upon which the seal of 'RD' was affixed and seized vide seizure memo. Requisite FSL form was filled. The seal after use was handed over HC Vinod Kumar. Both the accused persons were questioned separately in which they disclosed that at about five months ago they had looted a car at Pankha Road JJ Colony Primary School Uttam Nagar Delhi by threatening the occupant with a pistol. The chassis number and engine number of the Maruti car with the accused persons was verified on number 100 from which it came to light that FIR No. 406 of 2010 PS Bindapur had been registered regarding its theft.
11. Rukka about the apprehension of the accused persons and recovery of weapons and the car was prepared by SI Ramesh Dabas and was sent to PS Special Cell Lodhi Colony for registration of FIR through Ct Harminder Singh. Further investigation of the case was assigned to SI Dharmveer Singh. On the basis of the said rukka, FIR No. 33 of 2011 was registered in PS Special Cell. The accused persons were arrested and their disclosure statements recorded. Statements of the witnesses were also recorded and the case property was deposited in the Malkhana of the PS Special Cell. The accused persons were produced before the State vs. Ravi & Anr, FIR No. 406/10, PS Bindapur and State vs. Kamal Kishore Sabharwal, FIR No. 33/11, PS Special Cell 6/19 concerned Court their police custody remand obtained. On the pointing out of Ravi, one Pulsar Motorcycle DL-4SBK-1464 recovered which as per the accused was stolen from District Centre Janakpuri. However no FIR in PS Janakpuri was found registered in respect of this motorcycle and thus the same was seized. The owner of the motorcycle was traced whose statement was recorded who stated that he had made a PCR call regarding the theft of his motorcycle. As no FIR had been registered in PS Janakpuri regarding the said motorcycle, Section 411 IPC was added in this FIR and the motorcycle was deposited in PS Special Cell. Information about the recovery of the white coloured Maruti Suzuki Swift Desire Car bearing registration no. DL-9CY-0683 was passed on to PS Bindapur.
12. The Pulsar Motorcycle DL-4SBK-1464 was released on superdari by the Court to its owner. As the Maruti Swift car was involved in FIR No. 406 of 2010 Sections 411 / 34 IPC were removed from the FIR. The report of the FSL Rohini was obtained as per which the firearms recovered were 'firearms' as defined under the Arms Act, 1959. After obtaining Sanction under Section 39 of the Arms Act charge-sheet was filed against the accused Kamal Kishore Sabharwal under Section 25 of the Arms Act and Section 411 of the IPC.
FURTHER INVESTIGATION IN FIR NO. 406 OF 2010 PS BINDAPUR
13. On 12.05.2011 the investigation of the FIR 406/2010 PS Bindapur was handed over to Insp. Subash Chand under the directions of the SHO. On 19.05.2011 information was received in PS Bindapur vide DD No. 26A about recovery of the Maruti Swift Car of the complainant Dinesh Kapoor in FIR No. 33 of 2011 PS Special Cell. On 22.05.2011 both the State vs. Ravi & Anr, FIR No. 406/10, PS Bindapur and State vs. Kamal Kishore Sabharwal, FIR No. 33/11, PS Special Cell 7/19 accused persons were arrested in FIR No. 406 of 2010 and the Maruti Swift car was sent to PS Bindapur vide Road Certificate No. 77/21/2011. Both the accused persons were interrogated by Insp. Subhash Chand and were remanded to judicial custody in FIR No. 406 of 2010. TIP proceedings in respect of both the accused were conducted where accused Ravi was identified but accused Kamal refused to participate. Insp. Subhash Chand obtained the police custody of the accused persons and recorded their disclosure statements. They pointed out the place of the incident which was recorded through a separate memo. The fake number plates used by the accused persons were seized. The IO recorded the statements of Rajeev, brother-in-law of Dinesh Kapoor who stated that he had given his ATM card to the complainant Dinesh Kapoor which had been used by the accused persons to withdraw Rs.15,000/-. Bank statement was collected by the IO. After recording of statements of the witnesses, the IO filed charge-sheet in this FIR.
CHARGES AND EVIDENCE IN FIR NO. 406 OF 2010 PS BINDAPUR
14. By order dated 03.10.2011, charges were framed in FIR No. 406 of 2010, PS Bindapur by the Court of Sh. Virender Bhatt, ASJ under Sections 392, 397, 411, 482 all read with Section 34 of the IPC against both the accused Ravi and Kamal Kishore Sabharwal to which they pleaded not guilty and claimed trial.
15. In order to bring home the charges against the accused persons the prosecution examined a total of 13 witnesses. The details of the witnesses are given in tabulated form as under:-
Serial No. Name Relevancy PW1 Dinesh Kapoor Complainant
State vs. Ravi & Anr, FIR No. 406/10, PS Bindapur and State vs. Kamal Kishore Sabharwal, FIR No. 33/11, PS Special Cell 8/19 PW2 HC Vinod Kumar Was posted in PS Special Cell and had apprehended the accused persons in FIR No. 33 of 2011, PS Special Cell on 18.05.2011.
PW3 ASI Omveer Singh He is the Duty Officer, PS Bindapur who recorded the FIR.
PW4 Rakesh Nanda He is Assistant Manager, ICICI Bank who proved the statement of account of Rajeev Kumar Malik.
PW5 HC Jai Singh He was posted as MHCM, PS
Bindapur
PW5 Ct Harminder Singh Was posted in PS Special Cell and
had apprehended the accused
persons in FIR No. 33 of 2011, PS
Special Cell on 18.05.2011.
PW6 Rajeev Kumar Malik Brother-in-law of the complainant
who as per the prosecution had
given his ATM Card to the
complainant on the date of the
incident.
PW7 HC Subhash Chand He was working as Duty Officer on
19.05.2011 in PS Bindapur and
recorded DD No. 26A.
PW8 SI Dharamveer He is the IO of FIR No. 33 of 2011,
PS Special Cell.
PW9 SI Davender He was the IO of FIR No. 406 of
2010 till 12.05.2011.
PW10 Dr. Jagminder Singh, He had conducted the TIP
MM Dwarka Courts. proceedings in respect of both the
accused persons.
PW11 SI Ramesh Dabas He was posted as SI in PS Special
Cell and had prepared the rukka of
FIR No. 33 of 2011 PS Special Cell.
PW12 Insp. Subhash Chand He is the IO of this Case.
PW13 Ct Sunil Kumar He had accompanied the IO during
investigation.
16. After completion of prosecution evidence, statement of the State vs. Ravi & Anr, FIR No. 406/10, PS Bindapur and State vs. Kamal Kishore Sabharwal, FIR No. 33/11, PS Special Cell 9/19 accused persons was recorded under Section 313 of the Cr.P.C. Both accused persons claimed false implication. They stated that they wanted to lead evidence in their defence. Matter was fixed for defence evidence on 07.04.2015 but counsel for the accused on that day stated that the accused did not wish to lead any defence. Statement of counsel for the accused to this effect was recorded.
17. The case of the prosecution has already been noted above. The complainant Dinesh Kapoor was examined as PW1. His first hand written complaint dated 31.12.2010 Ex.PW1/A does not state that he was robbed of his car at gun point by the accused persons. On the other hand it simply states that when he had gotten down from his vehicle at about 11pm to urinate he started talking on his phone and had left the keys in his car and two unknown persons fled with his car. There is absolutely no allegation of the complainant being forced into the car, looted of cash of Rs.6,000- Rs.7,000/- at gun point, taken to the HDFC ATM, made to withdraw Rs.15,000/- in cash after which the accused fled with his vehicle. These allegations have surfaced for the first time in his supplementary statement recorded on 08.03.2011.
18. In his examination in chief, complainant Dinesh Kapoor PW1 narrates something similar to the contents of his statement dated 08.03.2011. He however did not state that he had first stopped at a fish rehriwala to consume fish. He does not state that he could identify the accused. On the other hand he has deposed that he could not see the faces of the accused persons properly and therefore he could not recognize them. He thus failed to identify the accused persons in the Court. He did depose about Rs.15,000/- being withdrawn from HDFC ATM but does not state that the said ATM Card belonged to his brother-in-law State vs. Ravi & Anr, FIR No. 406/10, PS Bindapur and State vs. Kamal Kishore Sabharwal, FIR No. 33/11, PS Special Cell 10/19 Rajeev. He was cross examined by the Ld. Addl. PP for the State and in cross-examination he deposed that could not recollect whether he had stated that he could identify the accused persons if shown to him. He did however claim ownership of the said car which he had taken on superdari.
19. PW4 is Rakesh Nanda, Assistant Manager, ICICI Bank who produced the statement of record of Savings Bank Account No. 037801003652 of Rajeev Kumar Malik (PW6) w.e.f. 01.12.2010 to 31.01.2011 Ex.PW4/A. As per Ex.PW4/A, Rs. 10,020/- and Rs.5020/- were withdrawn in cash on 31.12.2010. Although the said document does not mention the time of withdrawal of any other transaction of the said period, the time of these two transactions are written in hand as 00:40:21 and 00:42:54. PW6 Rajeev Malik, brother-in-law of the complainant deposed that on the request of the complainant, he had handed over his ATM Card to the complainant in December, 2010. However, PW6 could not recollect the exact date on which he handed over his ATM Card to the complainant.
20. As per the record produced by PW4, Rs.15,000/- had been withdrawn on 31.12.2010 at 00:40:21 and 00:42:54 hrs in two transactions. Ex.PW4/A is a typed computer generated record of ICICI Bank. The same is not accompanied with any certificate under the Bankers Book Evidence Act. Further, the time of the two transactions are written in hand on the said document although the time of the other transactions are not mentioned in the same either in hand or in typed format. As per PW1 the accused persons had forcibly taken him to the HDFC ATM. The time of the incident is mentioned as 10:30-10:45pm on 30.12.2010. PW6 does not remember the date on which he gave the ATM Card to PW1. PW1 did not mention anything in his original complaint Ex.PW1/A about the said incident. PW1 does not state in his examination in chief that the said ATM State vs. Ravi & Anr, FIR No. 406/10, PS Bindapur and State vs. Kamal Kishore Sabharwal, FIR No. 33/11, PS Special Cell 11/19 Card was given to him by his brother in law - PW6. Most significantly, PW1 has not offered any explanation as to why he had not mentioned anything in his first complaint Ext. PW1/A about him being robbed of his vehicle and cash by the accused persons.
21. In his complaint Ex.PW1/A Dinesh Kapoor had only stated that two persons had fled with his vehicle when he had stopped to urinate. I find it hard to believe that the complainant Dinesh Kapoor would not have remembered while giving his complaint Ex.PW1/A that he had been robbed of his vehicle and money at gun point by the accused persons. There is no explanation at all as to why the complainant has failed to state in his complaint Ex.PW1/A about the robbery. The complainant has also failed to identify the accused persons in the court. As far as the bank record Ex.PW4/A is concerned the said account belongs to PW6. In his examination in chief PW1 had deposed that it was his ATM Card which was taken by the accused persons and used to withdraw Rs.15,000/-. PW1 has not stated that the said ATM Card belonged to his brother-in-law PW6. In these facts and circumstances the version of the prosecution about the accused persons having robbed the complainant of his car and money is not believable.
22. I, therefore, do not have any hesitation in acquitting both the accused persons of the charges framed against them under section 392/34 IPC and section 397/34 IPC. The accused persons thus stand acquitted of the said charges. As regards the charges under section 411/34 IPC and 482/34 IPC, the same have been framed in pursuance of their apprehension in FIR 33 of 2011 PS Special Cell in which the said car was recovered from them. I shall deal with the evidence in this regard in my latter part of this judgment pertaining to FIR No. 33/2011 PS Special State vs. Ravi & Anr, FIR No. 406/10, PS Bindapur and State vs. Kamal Kishore Sabharwal, FIR No. 33/11, PS Special Cell 12/19 Cell.
CHARGES AND EVIDENCE IN FIR NO. 33 OF 2011 PS SPECIAL CELL
23. By order dated 10.02.2012, charge was framed in FIR No. 33 of 2011, PS Special Cell by the Court of Sh. Virender Bhatt, ASJ under Section 25 of the Arms Act against the accused Kamal Kishore Sabharwal to which he pleaded not guilty and claimed trial.
24. It may be noted that the chargesheet in this FIR pertained to the illegal fire arm recovered from the accused and a motorcycle Pulsar bearing registration number DL-4SBK-1464 recovered at his instance which the accused had disclosed that he had stolen the same from Janakpuri District Center. However, it seems that no charge in this respect was framed against the accused. Rajesh PW9 and owner of this motorcycle was examined as a witness in this case. He was duly cross- examined by the Counsel for the accused. Thus the accused was aware about the case of the prosecution in respect of the said motorcycle and no prejudice can be said to have been caused to the accused in the absence of any specific charge being framed in this regard.
25. In order to bring home the charges against the accused persons the prosecution examined a total of 9 witnesses. The details of the witnesses are given in tabulated form as under:-
Serial No. Name Relevancy
PW1 SI Ramesh Dabas He is part of the police team which
apprehended the accused persons
on 18.05.2011. He also prepared the
rukka.
PW2 SI Dharamveer He is IO of this case.
PW3 HC Vinod Kumar He is part of the police team which
apprehended the accused persons
State vs. Ravi & Anr, FIR No. 406/10, PS Bindapur and State vs. Kamal Kishore Sabharwal, FIR No. 33/11, PS Special Cell 13/19 on 18.05.2011.
PW4 Ct Harminder He is part of the police team which apprehended the accused persons on 18.05.2011. He took the rukka from PW1 to the PS for registration of the FIR.
PW5 Satyaprakash, LDC He produced the record of Transport Department motorcycle DL-4SBH-3115 and DL-
4SBK-1464.
PW6 Dr. K.C. Varshney, He examined the country made pistol Deputy Director FSL and cartridges and submitted his Rohini report dated 06.07.2011.
PW7 ASI M. Baxla He is the MHCM of PS Special Cell.
PW8 Arun Kampani, Addl. He had granted the sanction under
CP, Legal Cell Section 39 of the Arms Act.
PW9 Rajesh He is the owner of the motorcycle
DL-4SBK-1464.
26. The version of the prosecution has already been recorded above. PW1, PW2, PW3 and PW4 are the witnesses relating to the apprehension of the accused persons and recoveries of the fire arm, Maruti Swift Car and Pulsar Motorcycle. The Ld. Counsel for the accused had argued that the contradictions in the versions of these prosecution witnesses would reveal that the case of the prosecution that the accused persons were apprehended on 18.05.2011 in the manner as claimed was not free from doubt. He further submitted that no public witness was associated with the proceedings of the police team and the same also cast a doubt on the version of the prosecution. He submitted that in these circumstances it would not be safe to rely on the versions of the prosecution witnesses who were police officials.
27. I have gone through the evidence led by the prosecution. The rukka Ex.PW11/A was prepared by PW1 SI Ramesh Dabas. In his State vs. Ravi & Anr, FIR No. 406/10, PS Bindapur and State vs. Kamal Kishore Sabharwal, FIR No. 33/11, PS Special Cell 14/19 examination in chief he had deposed that the police team had asked four to five passers-by to join the investigation but all of them had refused. In cross-examination he deposed that no independent witness was called from DAV Public School as its gate was closed. He was not aware whether there was any watchman present in the school. He could not remember as to how many persons had passed the spot. He deposed that none of them were joined in the investigation. He deposed that DDA Janta Flats were about 300 yards away from the spot and that no-one was called from the said flat to join the investigation.
28. PW2 SI Dharamveer was assigned investigation of the matter. In cross-examination he deposed that he did not try to call any chowkidaar or any other person from the DAV School. He deposed that people were passing by the spot of apprehension but he did not try to join any public persons in the proceedings. PW3 HC Vinod Kumar has not deposed anything in his examination in chief regarding any attempt being made to join any public person in the proceedings of the police team. However in cross-examination he deposed that public persons were asked to join the raiding party at Keshopur Bus Depot. He deposed that no notice was given to any person of the public and he could not state anything about the age and description of public persons asked to join the proceedings of the police team.
29. PW4 Ct. Harminder has also not deposed anything in his examination in chief regarding public persons being sought to be associated with the proceedings of the police team. In cross-examination he deposed that no notice was served on any passers-by to join the police team and he could not recollect the description of any person tried to be associated with the police proceedings. He further deposed that no person State vs. Ravi & Anr, FIR No. 406/10, PS Bindapur and State vs. Kamal Kishore Sabharwal, FIR No. 33/11, PS Special Cell 15/19 from the school was called to join the proceedings and that no person had gone to see whether there was any guard present at the school gate. He deposed that persons were passing the spot when the police team was there but no such person was asked to join the raid.
30. From the version of PW1, PW2, PW3 and PW4 it is apparent that no attempt at all was made by the police team to associate any public person at the time of the apprehension of the accused persons. This was so even though there was a school building at the spot and several persons were passing by during the duration the police team remained at the spot.
31. PW1 Ramesh Dabas has deposed that he had prepared the rukka Ex.PW11/A and sent the same to the police station for registration of the FIR through Ct. Harminder PW4. PW1 has further deposed that after registration of the FIR SI Dharamveer PW2 after being assigned the investigation came to the spot and thereafter PW1 handed over the case property and the documents to PW2 who prepared the site plan Ex.PW8/A at his instance. In cross-examination PW1 deposed that PW4 had not come back to the spot in his presence and that he himself i.e. PW1 was relieved by PW2 after preparation of the site plan at about 8:40 pm.
32. PW2 SI Dharamveer has deposed that he reached the spot at about 8:15 pm after he was told that investigation of the case had been assigned to him. He deposed that PW1 handed over both the accused to him with the sealed pullanda and he prepared the site plan at the instance of PW1 who thereafter left the spot. PW2 deposed that he thereafter arrested the accused persons vide memos Ex.PW2/C and Ex.PW2/D and conducted their personal search vide memos Ex.PW8/B and Ex.PW8/C. State vs. Ravi & Anr, FIR No. 406/10, PS Bindapur and State vs. Kamal Kishore Sabharwal, FIR No. 33/11, PS Special Cell 16/19 He deposed that in the meantime Ct. Harminder PW4 reached the spot with copy of the FIR and original rukka which were handed over to him.
33. PW3 HC Vinod Kumar was also part of the police team on 18.05.2011. In his examination in chief PW3 deposed that the rukka was prepared by PW1 and sent to the police station through PW4. He deposed that in the meanwhile PW2 SI Dharamveer Singh reached the spot and at the same time PW4 came back to the spot and handed over the rukka and FIR to PW2.
34. From the deposition of PW1 and PW2 it appears that PW2 came to the spot at about 8:15 pm after being assigned the investigation. PW1 handed over the accused, documentation made by him and left the spot at about 8:40 pm. By that time PW4 Ct. Harminder had not come back to the spot from the police station with the rukka and copy of FIR. However as per PW3 SI Dharamveer Singh and Ct. Harminder had come to the spot together.
35. PW2 has deposed that after reaching the spot at 8:15 pm he arrested the accused persons vide memo Ex.PW2/C and Ex.PW2/D. Ex.PW2/C pertaining to accused Kamal Kishore records his time of arrest as 9:30 pm and Ex.PW2/D pertaining to accused Ravi records his time of arrest as 9:45 pm. Both the arrest memos have the signature of PW3 HC Vinod Kumar as witness and the arrest have been effected by PW2. PW4 in his cross-examination has deposed that he came back to the spot from the police station at about 11:30 pm. PW2 has deposed that he came to the spot at 8:15 pm. PW3 in cross-examination has deposed that PW2 and PW4 came to the spot together. If as per PW3, PW2 and PW4 came together at the spot and as per PW4 he had reached at about 11:30 pm State vs. Ravi & Anr, FIR No. 406/10, PS Bindapur and State vs. Kamal Kishore Sabharwal, FIR No. 33/11, PS Special Cell 17/19 then it would not have been possible for PW2 to have arrested the accused persons at 9:30 pm and 9:45 pm as he would not have reached the spot at that time. It is also to be noted that PW-1 had deposed that he had left the spot at 8.40 pm after handing over the accused to PW-2 and by that time PW-4 had not come back from the police station with the copy of the FIR. However, PW-3 deposed that PW-2 and PW-4 came to the spot at the same time and PW-4 handed over the copy of the FIR and rukka to PW-2. If PW-3 is correct then PW-4 would have come back to the spot before PW -1 had left.
36. There are, therefore, material contradictions in the versions of PW1, PW2, PW3 and PW4 regarding the manner in which the accused persons Ravi and Kamal Kishore Sabharwal were apprehended and recoveries effected from them. These contradictions coupled with the fact that no attempt at all was made by the police team to join public witnesses casts a doubt regarding the version of the prosecution.
37. As recorded above, as per the prosecution a Pulsar Motorcycle bearing registration no. DL-4SBK-1464 was recovered at the instance of the accused Kamal Kishore Sabharwal belonging to Rajesh PW9. Admittedly no FIR in respect of this motorcycle has been registered. As per the disclosure statement of the accused this motorcycle was stolen by him from Janakpuri District Center. PW9 Rajesh, owner of this motorcycle has deposed that his motorcycle was stolen on 08.10.2010 after he had parked it in the District Center Janakpuri. He has further deposed that he made a call on number 100. He deposed that he did not know who stole the motorcycle and from whom it was recovered. It is hard to believe that a person who has lost his motorcycle will not make any effort to have an FIR registered so as to make an attempt to ensure its State vs. Ravi & Anr, FIR No. 406/10, PS Bindapur and State vs. Kamal Kishore Sabharwal, FIR No. 33/11, PS Special Cell 18/19 recovery. PW9 has deposed that he has made a PCR call on number 100. The prosecution has not produced any record of the said PCR call to even establish that any such call was made.
38. In view of the inconsistencies in the version of the prosecution which have cropped up during cross-examination of the prosecution witnesses, the accused Kamal Kishore Sabharwal is entitled to benefit of doubt which is writ large in this matter. He is therefore acquitted of all charges framed against him in FIR 33/2011 PS Special Cell.
39. Since the prosecution has failed to prove, beyond reasonable doubt, that the accused persons Ravi and Kamal Kishore Sabharwal were apprehended with the Maruti Car and illegal fire arm by the police team on 18.05.2011 in FIR 33/2011, the recovery of the said car alleged to have been robbed by them in respect of which FIR no. 406/2010 PS Bindapur was registered has also not been proved beyond reasonable doubt. The accused persons Ravi and Kamal Kishore Sabharwal are acquitted of the charges framed under section 411/34 IPC as well as 482/34 IPC in FIR no. 406/2010 PS Bindapur.
CONCLUSION
40. The net result of the above discussion is that the accused persons are acquitted of all the charges framed against them in FIR no. 406/2010 PS Bindapur as well as FIR No. 33/2011 PS Special Cell.
41. File be consigned to record room.
Announced in the open court (REETESH SINGH)
on 30th April, 2015 ASJ-02/FTC, PHC/ND
30/04/2015
State vs. Ravi & Anr, FIR No. 406/10, PS Bindapur and State vs. Kamal Kishore Sabharwal, FIR No. 33/11, PS Special Cell 19/19