Delhi District Court
State vs 1. Rohit @ Ravit, S/O Surender on 25 August, 2023
IN THE COURT OF MS. KIRAN BANSAL
ADDITIONAL SESSIONS JUDGE-04: SHAHDARA:
KARKARDOOMA COURT: DELHI.
SESSIONS CASE No. 53/2020
Unique Case ID No. 700/2016
FIR No.373/2014
U/S: 395/397/412/34 IPC
P.S: Nand Nagri
State Versus 1. Rohit @ Ravit, S/o Surender
R/o. Village Gadhi, Distt. Bhagpat,
U.P.
(discharged vide order dated
17.10.2015)
2. Ajay @ Fauji, S/o Rakesh
Village Gadhi, Distt. Bhagpat,
U.P.
3. Sunil @ Kale, S/o Bijender
R/o Village Gejha, Distt. Bhagpat,
U.P.
Date of Institution : 13.10.2014
Date of Arguments : 21.08.2023
Date of Judgment : 25.08.2023
FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.1 of 35
JUDGMENT
1. The brief facts of the case, as per charge sheet are that on 14.04.2014, a DD No.3B was assigned to ASI Suphal Ram who along with Constable Vikas reached at the spot and met complainant Shri Pramod Kaushik who gave his statement that he had come with his vehicle No. DL 8C AE 4064 Santro GL+ white colour model 2014 for CNG filling at Nand Nagri and after getting the CNG filled by about 12.15 AM, he stopped his vehicle on the Wazirabad road in front of CNG Pump and was speaking on a mobile phone, when a Swift Car of white colour having UP number came and four boys came out of the said car and knocked the window of his car. The complainant rolled down the window and the said persons asked him the route of Mahrani Bagh. The complainant tried to tell them the route but one of the said boys told him to come out and explain the way. Then the complainant came out from his vehicle. Two boys then pointed pistol towards him and told him to sit in the car quietly otherwise he would be killed and he was made sit in the back side of the said car. Two boys sat on the back seat of the car with him and the two other sat on the front and they started driving the car. While driving the car, they took Rs.3,000/- and one gold ring and one silver ring from the complainant and took a U-turn after the bridge. Again, they came below the bridge and took another U-turn towards Wazirabad. He was dropped by them from the vehicle and those four boys fled away along with Santro car of the complainant. The complainant has further stated that he can recognize the four persons on FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.2 of 35 seeing them. He has further stated that his vehicle be traced and the documents of his car were also kept in the said vehicle itself. On his complaint, FIR was registered. The matter was investigated.
2. During investigation, complainant gave statement that when he was dropped by the said four persons, he saw that the white swift car was following his car and it was revealed that five persons were involved in the incident, therefore, chargesheet was filed under Section 395/397/34 IPC. Three accused persons were apprehended. However, as accused Rohit @ Ravit was not identified by the complainant during TIP, but vehicle of complainant was recovered from him, therefore, against him chargesheet was filed under Section 412/34 IPC. One more alleged person Sunil Dhaka was reported to be involved in the incident but expired on 07.07.2014 and thus, was not chargesheeted.
3. On appearance, in compliance of Section 207 Cr.P.C, copies were supplied to accused persons and after considering the material placed on record, ld. MM vide order dt. 29.09.2014 observed that Section 395/397/412/34 IPC is made out and the present case was committed to Sessions Court.
4. It is pertinent to mention that vide order dated 17.10.2015, charge order was passed qua accused Rohit @ Ravit, Ajay @ Fauji and Sunil @ Kake and it was observed that as far as role of accused Ravit is concerned, IO has chargesheeted him for offence under Section 412 IPC, however, admittedly, FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.3 of 35 accused Ravit was not found in possession of the robbed Santro Car within jurisdiction of this court and he was found in possession of this car at Rohtak, while committing certain other alleged offences, in respect of which already one FIR No. 135/14 was registered in PS Kala Naur, Rohtak, thus, charge under Section 412 IPC, Ravit should not be tried before this court. Though, as per FIR, there were four accused persons, however, this situation was clarified by complainant in his supplementary statement stating that the Swift car was being driven by fifth person, who followed them, thus, it is apparent that five persons had formed common intention to commit robbery, and even if some persons out of five robbers are not traceable by the IO, the remaining accused persons are to be chargesheeted and it was observed that charged for offence under Section 395 IPC on the basis of involvement of unknown persons along with accused persons in the robbery is made out. In the charge order dated 17.10.2015, it was directed that charge under Section 397 IPC is made out against Sunil @ Kale and charge under Section 395 IPC is made out against Ajay @ Fauji. Charge was framed on 18.12.2015 under Section 395 IPC against accused Ajay @ Fauji and under Section 395 IPC read with Section 397 IPC against accused Sunil @ Kale to which they pleaded not guilty and claimed trial.
5. After the framing of the charge complainant was examined as PW-2 and after the examination of the complainant, an application under Section 216 Cr.PC for amendment of the charge was filed by ld. Addl. PP for State on 23.05.2016 for addition of charge under Section 397 IPC against accused FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.4 of 35 Ajay @ Fauji on the basis of the testimony of PW-2/victim. This application was allowed vide order dated 25.05.2016 and an amended charge under Section 395 IPC read with Section 397 IPC was framed against Ajay @ Fauji to which he pleaded not guilty. Vide the same order, it was directed that to avoid any prejudice to the accused Ajay @ Fauji, victim/PW-2 be recalled for cross examination. PW-2 was summoned and was again cross examined on 27.09.2016 after the framing of the amended charge against Ajay @ Fauji, under Section 395 IPC read with Section 397 IPC.
6. To substantiate the charge, prosecution has examined seven witnesses:
7. PW-1 HC Hari Mohan deposed that on 14.04.2014 he was posted as Duty Officer at PS Nand Nagri from 12:00 midnight to 8:00 am and on that day at about 03:00 am, Ct. Vikas handed over one rukka, sent by ASI Suphal Ram, on the basis of which he got registered FIR No.373/2014 and handed over copy of FIR and original rukka to Ct. Vikas for handing over the same to ASI Suphal Ram for further investigation. The copy of FIR is Ex.PW1/A. PW-1 HC Hari Mohan further deposed that he made endorsement on the back side of the rukka under his hand writing and same is Ex.PW1/B. After registration of FIR, he made relevant entry in DD register vide DD No.4-A, copy of same is Ex.PW1/C. FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.5 of 35
8. PW-2 Sh. Pramod Kaushik complainant/victim deposed that on 14.04.2014 at about 12-12.15 am, he had gone to CNG Pump Station at Wazirabad Road, Nand Nagri, Delhi in his Santro Car bearing registration No.DL- 8CAE-4064 and after filling CNG in his car, he had came to main road and parked his car on the road side for talking on mobile phone to his friend Jyoti Pawar. He further deposed that one white colour Swift car came there and stopped in front of his car, five persons came out from the said car and went to the road side for easing themselves. He further stated that while he was busy on his phone, the said five persons took round of his car, out of which one of them knocked window of his side i.e. driver's seat and that person/boy asked him about route of Maharani Bagh. He further deposed that he told that boy while sitting inside his car to go straight and take left turn from T-Point, however that boy told him (PW-2) that he was not able to hear him (PW-2) and as such, he (PW-2) came out of his car to explain the route. PW-2 further deposed that at that moment when PW-2 started narrating the route, accused Ajay put a pistol on his right side and another boy came there and caught hold of his collar. He further deposed that accused Ajay @ Fauji, who had knocked his window of car and had put pistol upon him, asked him keys of the vehicle. He further deposed that one more boy was standing behind him and another boy was standing on the left side of front seat of his car. He also deposed that at that time, when he came out of his car, he did not notice 5 th boy. PW-2 further deposed that he gave keys of his vehicle to accused Ajay and thereafter, they made him to sit on the rear seat of his car. He further FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.6 of 35 deposed that two boys sat along with him on his both sides and one of them kept pistol on him. He also deposed that two boys sat on the front side and one of them drove the vehicle in the direction of Wazirabad and they moved the vehicle ahead and rode over the Flyover (Mandoli Chungiwala) and after coming down from the Flyover, they took left turn beneath the Flyover and again took left U-turn and came on the other side of the road. PW-2 Sh. Pramod Kaushik deposed that there was main showroom of T.R.Sahni and they stopped the vehicle at the corner of Flyover and in the meantime, accused Sunil sitting beside him took away his two rings. He further deposed that there was one gold ring with Pukhraj stone and another silver ring with Gomade stone. He also deposed that they had taken his purse and took out Rs.3000/- in cash and returned the purse to him. PW-2 Sh. Pramod Kaushik further deposed that he was having two mobile phones, one of Micromax company and make of other one was not remembered to him. He further deposed that they took out battery of other phone and left the phone with him. He also deposed that they also tried to take out battery of Micromax phone as well but could not succeed and that phone remained with him. He also deposed that at the corner of Flyover, they asked him to get down from the vehicle and he requested them to give him atleast Rs.200/- to reach his place but they did not accede to his request and while he was getting down from the vehicle, they threatened him not to look back, also abused him. He deposed that he looked back and saw that his vehicle was being taken towards the direction of Bhopura and that Swift car was also FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.7 of 35 following it. PW-2 Sh. Pramod Kaushik deposed that he reached on the opposite side of the road and made call on 100 number from his phone. Police reached at the spot after about 15-20 minutes and made inquiries from him. He took them to the place near CNG Pump where incident had taken place and after inquiries police recorded his statement Ex.PW2/A. Police prepared site plan Ex.PW2/B at his instance. PW-2 further deposed that on 28.06.2014, he had visited Tihar Jail for TIP of accused where he identified two accused persons who were the same who were present in court when evidence of PW-2 was being recorded i.e. Ajay and Sunil. The TIP proceeding of accused Ajay @ Fauzi is Ex.A1 and of accused Sunil @ Kale is Ex.A2 and order of Ld. MM dated 24.06.2014 is Ex.A3. PW-2 Sh. Pramod Kaushik further deposed that later on his vehicle was recovered and information was given to him by police, which was released to him on Superdari from PS Nand Nagri and Superdarinama is Ex.PW2/C. He produced RC, which is Ex.PW2/D, also produced photographs of his car, which are Ex.PW2/E1 to Ex.PW2/E4. He also deposed that one more accused had put pistol on him, when he got down from his car to tell way for Maharani Bagh, that boy was finally driving the car, however that boy was not produced in TIP proceedings.
9. PW-3 ASI Jai Prakash deposed that on 23.05.2014 he was posted in PS Kalanaur, District Rohtak as MHC(M) and on that day PSI Naveen Kumar deposited one Santro Car of white colour in Malkhana in FIR No.135/14, FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.8 of 35 PS Kalanur. He also deposed that on 05.06.2014, SI Gaurav Kumar from PS Nand Nagri, Delhi handed over copy of an Order Mark-PW3/A passed by Ld. ACJM, Rohtak, vide which Santro car was ordered to be handed over to SI Gaurav. He further deposed that he had handed over aforesaid Santro car to SI Gaurav, who seized the same vide seizure memo Ex.PW3/A. He also deposed that there was no number plate affixed to that Santro car, however engine number as well as chasis number were mentioned in seizure memo.
10.PW-4 ASI Suphal Ram deposed that he was on duty in the intervening night of 13/14.04.2014 in PS Nand Nagri, Delhi and at about 12.45am, one DD No.3-B was assigned to him, on which he along with Ct Vikas reached in front of Swagat Palace, situated after crossing the flyover of Nand Nagri, where complainant Pramod Kaushik met them, who told them that some persons had committed offence with him at CNG Pump, Near Nand Nagri, main Wazirabad Road. He further deposed that complainant told that accused left him at Swagat Palace and complainant showed the place of incident to him and after detailed inquiry, statement of complainant was recorded. PW-4 further deposed that he made endorsement on the statement of complainant and prepared rukka Ex.PW4/A and handed over the same to Ct Vikas, who took the same to PS Nand Nagri for registration of FIR. He prepared site plan Ex.PW2/B at the instance of complainant. Ct Vikas returned at the spot along with rukka and copy of FIR, which were handed over to him. Thereafter, they came back to PS where statement of FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.9 of 35 Ct Vikas was recorded. PW-4 deposed that he made efforts to trace accused persons but could not succeed and during investigation, complainant gave him a receipt Mark-PW-4/A in his name of vehicle No. DL-8CAE-4064 and copy of insurance Mark-PW-4/B of the said vehicle.
11.PW-5 SI Nitin deposed that on 23.06.2014 he was posted as SI at PS Nand Nagri and on that day investigation of this case was assigned to him by SHO, PS Nand Nagri. He collected the case file from MHCR and he along with Ct Mool Chand reached at Karkardooma Court where both accused Ajay @ Fauji and Sunil @ Kala were produced on production warrants from Rohtak in muffled face. He interrogated accused vide application Ex.PW5/A and formally arrested them vide memos Ex.PW5/B and Ex.PW5/C respectively and their disclosure statements were recorded vide memos Ex.PW5/D and Ex.PW5/E respectively. He moved an application Ex.PW5/F for TIP of both accused persons. On 28.06.2014, TIP of all three accused persons namely Ajay, Sunil and Rohit were conducted, in which complainant identified accused Ajay and Sunil but Rohit was not identified. TIP proceedings of Ajay are Ex.A-1, of Sunil @ Kale are Ex.A2 and order dated 24.06.2014 of ld. MM are Ex.A3 (as per order dated 27.09.2016, and are admitted documents). During cross, he denied the suggestion that he had shown photographs of the accused person to the complainant on the way to Tihar and he deposed that he had not shown the photographs of the accused persons to the complainant during his investigation.
FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.10 of 35
12.PW-6 Ct Vikas Singh deposed that in the intervening night of 13/14.04.2014 he was posted as Constable at PS Nand Nagri and on that day on receiving DD No.3B, he along with ASI Suffal Ram went to CNG Pump, Wazirabad Road, where complainant met them. IO asked him to search for accused persons and van and IO talked to complainant. IO recorded statement of complainant and prepared a Tehrir and handed over it to him for registration of case. He went to PS for registration of FIR and got registered the present case and came back at the spot and handed over copy of FIR and original Tehrir to the IO and thereafter, he returned back to PS and IO recorded his statement.
13.PW-7 Inspector Naveen, Posted at Rapid Metro, Gurugram, Haryana. (HAP Ambala) deposed that on 15.05.2014 he was posted as SI/PSI, CIA Staff, Rohtak, Haryana and on that day accused Rohit was arrested in case FIR No.135/2014, U/s 364-A/387/120-B IPC and 25/54/59 Arms Act, PS Kalanaur, Haryana, in which he confessed that he along with co-accused person looted the Santro Car of the present case and in pursuance of his disclosure statement, accused Rohit @ Ravit got recovered Santro Car bearing registration No.DL8C-AE-4064 which was parked in front of his house i.e. Village Gadi, District Baghpat, U.P. on 23.05.2014. He seized the said car through seizure memo which is Mark-PW7/A and on the basis of registration number of the said car, they came to know the name of owner as Pramod Kaushik resident of House No.WS-18A, Gali No.2, Gali FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.11 of 35 Bhagat Singh West, Babarpur, Shahdara, Delhi. He had talked with the complainant on his mobile phone bearing No.9873653900 and came to know that he got registered the FIR regarding robbery of the said car at PS Nand Nagri vide FIR No.373/2014, U/s 392/34 IPC. He informed PS Nand Nagri regarding recovery of said car on 03.06.2014 and later on, IO of this case SI Gaurav Kumar met him in his office and recorded his statement. He identified the Santro Car of white colour bearing registration No.DL- 8CAE-4046 from the photographs Ex.PW2/E1 to Ex.PW2/E4 which was recovered by him at the instance of the accused Rohit which was parked outside of his house.
14. On the submission of ld. Addl. PP for State four witnesses were dropped on 25.05.2016 as it was stated by the then ld. Addl. PP for State that the examination of IO would be sufficient, however, later on SI Gaurav Kumar could not be examined and was dropped from the list of witnesses vide order dated 07.02.2020. Ld. Addl. PP for State then submitted that in such circumstances, Ct. Rajeev needs to be examined as prosecution witness. However, ld. counsel for accused Ajay @ Fauji and accused Sunil @ Kale submitted that they are not disputing the three applications dated 19.06.2014, 24.06.2014 and 01.07.2014 of IO filed by SI Gaurav, Ex.A1 to A3, Arrest Memo of accused Rohit @ Ravit, Ex.A4, Disclosure statement of accused Rohit @ Ranvit, Ex.A5 and application of IO regarding arrest and interrogation of accused persons, namely, Ajay @ Fauji and accused Sunil @ Kale Ex.A6. Separate statement of both the counsels for the FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.12 of 35 accused Ajay @ Fauji and Sunil @ Kale recorded to this effect and in view of their statement, examination of Ct. Rajiv was dispensed with as per order dated 20.07.2023.
15. Inadvertently, three more documents i.e. request of IO dated 19.06.2014, 24.06.2014 and 01.07.2014 were also marked as A1, A2 nad A3 respectively. Though, A1 was already marked on the TIP of Ajay, A2 was already marked on TIP of Sunil @ Kale and A3 was already marked on order dated 24.06.2014 of Ld. MM.
16.Thereafter statement of accused was recorded u/s. 313 Cr.P.C. wherein they denied the allegations against them and stated that they have been falsely implicated by the police and they were not present at the spot and the vehicle was not recovered from their possession. Accused Ajay @ Fauji had taken the defence that he has been falsely identified by the complainant at the instance of IO as his photographs were already shown to complainant on mobile phone and he was produced in court room without muffled face and he had been called in the police station by the IO and booked by IO. Accused Sunil @ Kale has taken the defence that he was already shown to the witness during production in court and he has been identified wrongly. He stated that he was brought from Rohtak and he did not give any disclosure statement and the same has been recorded by the IO on his own and he was produced in the court in unmuffled face and has been wrongly identified by complainant. He further taken the defence that complainant FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.13 of 35 was demanding Rs.1,50,000/- for repairing of his santro car and his family could not afford the said amount and he had been called in the police station by the IO and booked by IO.
17.Arguments have been advanced by Sh. Virender Kumar, Ld. Addl. PP for State and Sh. Sanjay, ld. Counsel for accused Sunil @ Kale and Sh. Priyanshu Sharma, Ld. Counsel for accused Ajay @ Fauji. I have perused the record.
18. Ld. Addl. PP for the State argued that complainant has supported the case of prosecution and has identified both the accused persons. His testimony is consistent and trustworthy. The complainant has identified both the accused persons even during TIP proceedings and thus, prosecution has proved its case against the accused persons for the charges framed against them beyond reasonable doubt and the accused persons be convicted and punished accordingly.
19.Per contra, ld counsel for the accused persons argued that this is a false case against the accused persons and that nothing has been recovered from any of the accused persons. It is further argued that there is material contradictions with regard to the identification of the accused persons and that evidence is not sufficient to reach at a conclusion that any of the accused was involved in the commission of the offence and further that the FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.14 of 35 accused persons have been implicated in the case because that some other cases were pending against them.
20.Accused persons are facing trial for the offences u/s 395/397/34 IPC. From the case of the prosecution, as set up by the prosecution, following two issues need to be adjudicated:
(i) Whether dacoity took place on the gun point on 14.04.2014 and accused persons robbed the complainant?
(ii) If the answer to the first question is in affirmative, whether the accused persons were involved in the commission of the offence ?
21.The present case of the prosecution mainly depends on the sole testimony of victim/complainant. In Jagdish Prasad Vs. State of M.P. (AIR 1994 SC 1251), Hon'ble Supreme Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872. But, if there are doubts about the testimony, the courts will insist on corroboration. It is not the number, the quantity, but the quality that is material. The time honored principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise. The position has been reiterated in large number of cases. Reference may be made to Joseph V. FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.15 of 35 State of Kerala (2003 (1) SCC 465), Yakub Ismailbhai Patel Vs. State of Gujarat (2004 (12) SCC 229), Bhimapa Chandappa Hosamani & Ors. Vs. State of Karnataka 2006 (11) SCC 323 and Kunju @ Balachandran Vs. State of Tamil Nadu 2008 (2) SCC 151.
22. Ld. counsel for accused persons have argued that the incident is of dated 14.04.2014 and the complainant has stated that he has purchased the vehicle on 4th April, 2014, but, as per RC Ex.PW2/D, the registration date of the vehicle is 13.04.2014 and thus, the complainant has been changing his stands and is giving wrong versions regarding purchase of the vehicle and thus, is not a reliable witness. The incident occurred on the intervening night of 13.04.2014 and 14.04.2014. As per Registration Certificate, the registration date of the vehicle is 13.04.2014, however, the complainant during his cross has stated that he has purchased the santro car bearing no. DL 8CAE 4064 from Himgiri Hyundai Showroom on 04.04.2014. The complainant when cross examined on this aspect, he has denied that he has not purchased the vehicle on 04.04.2014 as the registration date on the RC is 13.04.2014. The testimony of PW-2 on this aspect cannot be doubted in, as much as, copy of insurance of the vehicle Mark Ex.PW4/B reveals that vehicle was insured from 04.04.2014 (14.06) to 03.04.2015 (midnight). In view of the insurance policy of the vehicle which shows the period of insurance from 4th April, 2014 onwards, it cannot be said that complainant is deposing falsely or is not a reliable witness in as much as from the insurance policy Mark 4/B, it is clear that the complainant had FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.16 of 35 purchased the vehicle on 04.04.2014 as deposed by him during his cross examination. Also, the registration of a new vehicle sometimes takes few days and therefore, merely because on the RC Ex.PW2/D, the registration date is 13.04.2014, it cannot be said that the vehicle was not purchased by the complainant on 04.04.2014 or that he is deposing falsely in this regard. Even, if we assume that the complainant had purchased the vehicle on 13.04.2014 then also the incident is of the intervening night of 13 th April and 14th April, 2014 and thus, complainant was in possession of the vehicle bearing no. DL 8CAE 4064, at the time of incident i.e. on 14.04.2014 at 12.15 am. This argument of the ld. defence counsels is thus rejected being frivolous.
23.It is also argued that the complainant has stated that his statement was recorded in the police station, whereas, as per testimony of the IO/PW-4, his statement was recorded at the spot and thus, there is contradiction in the testimony of the complainant and the IO PW-4 ASI Suphal Ram. The court has perused the testimony of PW-2 in this regard to find as to whether the complainant has stated that his initial statement i.e. the complaint made on the day of incident was recorded in the PS. His relevant testimony and cross examination is reproduced hereinbelow:
Relevant portion of examination in chief dated 18.05.2016 ".......Thereafter, I reached on the opposite side of the road. Thereafter, I made call on 100 number from my phone. Police reached that place after about 15-20 minutes of my FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.17 of 35 call. In between, I had made 2 -3 calls on 100 number. Police made inquiry from me and thereafter, I took them to the place near CNG pump, where this incident had taken place. After inquiry from me, police recorded my statement regarding the incident narrated by me. I can identify my signature on my statement. The statement, which was recorded by police, is exhibited as Ex.PW2/A, bearing my signature at point X. I had narrated the place of incident to the police. Perhaps, police had prepared he site plan on my narration. I can identify that document by my signature....."
Relevant portion of cross examination dated 20.05.2016 "I was called in the PS for about 8-10 times in connection of investigation of present case. I do not remember all those dates today. On 2 or 3 occasions, my statements were recorded. However, on other occasions only inquiries were made from me. I do not remember the exact dates of those 2
- 3 occasions, when my statements were recorded. My statements in the PS, were recorded in the area where Duty Officer sit. At that time, apart from police official who made inquiries from me, some other police officials were also present.......
Cross examination dated 20.05.2016 after lunch FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.18 of 35 ....... On 14.04.2014, I went to PS Nand Nagari at about 1 am. My statement was recorded in the PS on 14.04.2014 by ASI Suphal Ram......."
24.Perusal of the file shows that apart from the complaint of the complainant Ex.PW2/A, one statement under Section 161 Cr.PC of the complainant was also recorded by ASI Suphal Ram on 14.04.2014. Prima facie, it appears that it was statement of the witness under Section 161 Cr.PC which was recorded in the PS and not the initial complaint. The initial complaint was written at the spot. ASI Suphal Ram has denied the suggestion that he had prepared the statement of complainant, rukka and site plan while sitting in the PS. Moreover, even if for the sake of arguments, it is accepted that the initial complaint of the complainant was recorded at the PS by the IO and not at the spot, that would not make any difference to the prosecution case and the entire prosecution case cannot be brushed aside only because the complaint of the complainant was written at the PS and not at the spot. The complainant had immediately dialed 100 number after the incident and the police had reached to the complainant within 15-20 minutes and thereafter, the complainant and police had also went to the spot i.e. from where the accused persons had taken the complainant in his car at gun point. The FIR Ex.PW1/A was lodged on the same day at about 3 am and thus, there was no delay in reporting the incident to police by complainant or in lodging of FIR.
FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.19 of 35
25.The next argument of ld. Defence Counsel is that complainant has stated that there was an arrangement for Bhagwati Jagran Chowki in front of Swagat Palace and some persons were present there but despite that neither complainant called anybody for any help and nor he has raised hue and cry at that place. It is also argued that no independent or public persons were joined in investigation. Swagat Palace is the place where the complainant/victim was dropped by the accused persons after the incident. The witness has already stated that he has crossed the road and made a call at 100 number immediately. Merely because he has not raised hue and cry, it cannot be said that incident of dacoity has not happened with him. Moreover, it was night time and complainant has stated that there was only some persons present and only one or two persons were awake at that time.
26. As far as non joining of those public persons who were making preparation of Bhagwati Jagran Chowki in front of Swagat Palace is concerned the same does not cast any dent on the prosecution version as it is common experience that public persons are generally reluctant to join police proceedings. As observed in Aslam & Ors. Vs. State, 2010 III AD (Delhi) 133, reluctance of the citizens to join police proceedings is well known and needs to be recognized. It cannot be ignored that public does not want to get dragged in police and criminal cases and avoids them because of long drawn trials and unnecessary harassment. The Hon'ble Supreme Court also observed in Manish v. State, 2000(8) SC 29 and in Appabhai and Anr. vs. State of Gujarat, AIR 1998 SC 696 that the courts FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.20 of 35 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 Court umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit. Moreover, in the instant case where complainant was dropped from the vehicle and those four boys fled away along with Santro car of the complainant and another associate of them was following the Hyundai car of the victim/complainant, in a swift car, the court is of the view that no public person would give any statement to the Investigating Officer to avoid giving an impression to any party that the said public person had taken any particular side. In these circumstances, non-joining of independent witness by the IO does not create any doubt on the case of the prosecution. Moreover, non-joining of any independent witness is absolutely no ground to throw away the testimony of the injured who stood the test of cross examination and whose testimony is consistent, trustworthy and reliable.
27. The Hon'ble Supreme Court in Nebi Dusadh Vs. State, Criminal Appeal No. 498 of 1953, decided on 5 th April, 1953 observed in para no. 6 and 7 that "6. On the board principle, whether it is either legal or proper to base a conviction on the sole testimony of one witness, there appears to be no difference. Indeed, the rule of law has been expressed in Section 134 of the Evidence Act which says that no particular number of witnesses shall, FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.21 of 35 in any case, be required for the proof of any fact. The result is that in any case the testimony of a single witness, if believed, is sufficient to establish any fact. The section merely follows the maxim that evidence is to be weighed and not counted.
7. As a rule of prudence, however, a judge should seek for corroboration to fortify himself about the guilt of the accused if there is a speck of doubt in his mind relating to the testimony of that particular witness. One can visualise cases where it is impossible to expect any witness other than the complainant, and it would be unwise and against public policy for any court to insist on the production of more witnesses."
28.In the present case, the incident happened after mid night and the complainant was robbed of his articles i.e. cash, jewellary and car and was then left on the road. In such circumstances, it would not be prudent on the part of court to expect any more public persons as witnesses.
29.In the present case, both the accused persons have been identified during TIP proceedings by complainant and subsequently they were identified before the court also and this aspect of the case cannot be ignored. In the opinion of the court, identification of accused persons who are not known FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.22 of 35 to the victims or witnesses during TIP proceedings coupled with their identification before the court becomes a substantial piece of evidence against the accused persons for the purpose of fixing their identity as a person involved in the commission of the crime.
30.Ld counsel for the accused further argued that only on the basis of test identification parade and identification of the accused before the court, accused cannot be convicted. Ld. defence counsels have and pointed out that during the cross examination of PW2, it has come on record that photographs of the accused persons were shown to him therefore, identification of accused by PW2 losses its value.
31.On the issue of TIP, Hon'ble Supreme Court in Ram Babu v. State of Uttar Pradesh (2010) 5 SCC 63 observed "14. As per Section 9 of the Evidence Act, facts which establish the identity of an accused are relevant.
Identification parade belongs to investigation stage and if adequate precautions are ensured, the evidence with regard to the test identification parade amy be used by the court for the purpose of corroboration. The purpose of test identification parade is to test and strengthen trustworthiness of the substantive evidence of a witness in court. It is for this reason that test identification parade is FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.23 of 35 held under the supervision of a Magistrate to eliminate any suspicion or unfairness and to reduce the chances of testimonial error as the Magistrate is expected to take all possible precautions.
15. In the present case, PW 14 supervised the test identification parade held in District Jail, Mathura on 4- 6-1980. He proved identification memos in his deposition. He deposed that all possible precautions were taken in conduct of the test identification parade held on that date. As a matter of fact, there is no challenge to his testimony.
16. Insofar as substantive evidence is concerned, all the three appellants (A-2, A-4 and A-5) have been identified by PW 3 and PW 9 in the court. A-2 and A-4 were also identified by PW 2 in the court."
32.The Hon'ble Supreme Court in the above case of Ram Babu, further observed that the identification of the appellants is thus established by substantive evidence duly corroborated by test identification parade which does not suffers from any undue or unexplained delay and upheld the conviction of the appellants for the offence under Section 395 IPC. In the present case, also the TIP proceedings were not disputed by both the accused persons and are admitted documents.
FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.24 of 35
33. Hon'ble Supreme Court in Suresh Chandra Bahri v. State of Bihar 1995 SCC (Cri) 60 observed-
"22. This Court held that it is well settled that substantive evidence of the witness is his evidence in the court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on the right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a matter of great importance, both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused. It is in adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution."
34.Ld. counsel for the accused has argued that as the complainant during his cross examination has admitted that he was shown the photographs of accused persons by the IO and therefore, the TIP proceedings are illegal and not valid. It is argued that in such circumstances, even the identification of FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.25 of 35 the accused by complainant in court should not be relied upon, as there is no recovery of robbed articles from the accused persons.
35.As far as identification of accused by complainant/victim and showing of photographs by the IO to the accused persons etc. is concerned, the relevant portion of examination dated in chief 18.04.2016 and cross examination dated 20.05.2016 is reproduced hereinbelow:
"The boy who had put pistol on me and who had knocked the window, had sat beside me. I can identify that boy and the boy sitting on other side beside me. I had seen partially the face of the boy sitting on left front seat but I could not see the face of the boy, who was driving my car. Witness had pointed out to accused Ajay, stating that he had put pistol on him and had knocked window of his car. He had pointed out to accused Sunil, stating that he was sitting beside him and had taken away all his belongings as stated hereinabove.
On 28.06.2014, I had visited Tihar Jail for identification of the accused persons. There was one judge sahab probably name as Sumit. Three rounds of TIP were conducted before him. I had identified two accused persons, who are present today and who were identified by me on 18.05.2016 before this court. I could not identify 3 rd one with all conformity because I was in doubt.....
FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.26 of 35 ....... one more accused had put pistol on me, when I had got down from my car in order to tell them way for Maharani Bagh and that boy was finally driving my car. However, that boy was not produced for TIP before me nor he is present in the court today.
In my statement given on 25.08.2014, I had informed IO that accused Ajay and Sunil had shown pistol to me...... ...... It is wrong to suggest that in my statement dated 25.08.2014, I had mentioned name of Sunil @ Kali and Sunil Dhaka as the persons, who had shown pistol to me.
36.The accused persons had voluntarily participated in the TIP and had nowhere stated that their photographs were taken by the IO to Sh. Sumeet Anand, concerned Magistrate before the TIP. In fact, the said TIP was not even disputed by the accused persons and were exhibited as Ex.A1 and Ex.A2 vide order dated 27.09.2016. As both the accused persons had admitted their TIP proceedings, the witness ld. MM Sh. Sumeet Anand was dropped from the list of witnesses on 27.09.2016. If the accused persons apprehended that their photographs were taken by the IO they should have stated this fact before the conduct of the TIP to the concerned Magistrate. The TIP Ex.A1 and Ex.A2 reveals that ld. MM has explained the meaning of TIP in Hindi to the accused and the accused understood the same and thereafter stated that they wanted to join the proceedings of TIP. Each accused was directed to pick up 8 to 10 under trials of his age and of FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.27 of 35 similar structure. Each accused had picked up the under trials as per his choice and thereafter, the TIP was conducted by the Ld. MM, after observing all the necessary directions. When the accused persons had voluntarily participated in the TIP proceedings, they cannot later say that their photographs were taken by the IO before the TIP proceedings. Moreover, these accused persons were initially apprehended in the Rohtak and formally arrested in the present case by the IO on 23.06.2014 in Karkardooma Court and were immediately sent to judicial custody. The application for TIP proceedings was moved thereafter, and TIP proceedings was conducted on 28.06.2014. It cannot be said that there is any delay in conducting of TIP proceedings. The witness complainant was also given suggestion during his cross examination that he had seen the accused persons at PS Kalanor, District Rohtak but the witness had denied the suggestion.
37.As far as seeing of the accused by the victim/complainant PW-2 during investigation is concerned, the relevant portion of the cross examination dated 20.05.2016 is reproduced hereinbelow:
"......In connection of this case, I came to Karkardooma court only once for obtaining my car on superdari. I visited PS Kalanor, District Rohtak twice but I do not remember the exact date.......
.......I had not seen any accused at PS Kalanor.........
FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.28 of 35 ........I do not remember the exact date, however, I had come to Karkardooma court on demand of police official of Nand Nagri in June 2014 on one day. It is correct to suggest that in June 2014, police had shown photographs of both accused persons to me on mobile phone. Vol. I was shown photographs of 11 persons, out which two photographs were of the accused persons who are present in the court today........
........It is wrong to suggest that I had identified both accused persons in TIP at Tihar Jail at the instance of police and on the basis of photographs shown to me by the police on mobile phone. Vol. I had identified them on the basis of my own memory of the incident.........
........It is wrong to suggest that I have deposed falsely at the instance of police officials and Rohit @ Ravit. It is also wrong to suggest that accused Sunil @ Kale is not involved in the present case or that he was falsely implicated in the present case........
.........My 2-3 visits to PS Nand Nagri were frequent and in the month of April. Regarding other visits, I do not remember the exact date and month.........
........It is wrong to suggest that accused Ajay @ Fauji was falsely implicated in the present case or that I had falsely deposed that accused Ajay @ Fauji had used pistol at the time FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.29 of 35 of offence. At the time of judicial TIP, I did not mention the role of accused persons to the Ld. MM, who conducted the TIP.......
Cross examination dated 27.09.2016 .........It is wrong to suggest that I had falsely identified Ajay having shown pistol to me during my last deposition at the instance of police or that Ajay was involved in the robbery against me."
38. The above testimony of the witness shows that the witness / complainant PW-2 has admitted that he has visited in Karkardooma Courts in June only once i.e. at the time of obtaining his car on superdari. The superdarinama is Ex.PW2/C is dated 10.06.2014. The order of ld. MM releasing the vehicle of the complainant is of dated 10.06.2014 and thus, complainant and visited in Karkardooma Courts on 10.06.2014. The accused persons were produced in the Karkardooma Courts only once i.e. month of June i.e. 23.06.2014. As the complainant had come to Karkardooma Courts only one for obtaining the car on superdari which was 10.06.2014, it is clear that he had not visited on 23.06.2014 when the accused persons were produced in the court and they were formally arrested by the IO vide arrest memo Ex.PW5/B and Ex.PW5/C. PW5 SI Nitin has clearly stated in his testimony in chief that both the accused persons were produced in the court no. 56 from Rohtak in muffled face. No suggestion has been given to him during his cross examination that they have not produced in muffled face.
FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.30 of 35 Witness has also denied the suggestion that he had shown photograph to the complainant on the way to Tihar. It is not even suggested to this IO that at the time when accused persons were produced in the court from Rohtak on 23.06.2014, he had taken photographs of the accused persons in mobile.
39. As far as identification by photograph is concerned, the Hon'ble Supreme Court Umar Abdul Sakoor Sorathia Vs. Intelligence Officer, Narcotic Control Bureau, observed that " 11. It was contended that identification by photo is inadmissible in evidence and, therefore, the same cannot be used. No legal provision has been brought to our notice which inhibits the admissibility of such evidence.
12. In the present case prosecution does not say that they would rest with the identification made by Mr. Mkhatshwa when the photograph was shown to him. Prosecution has to examine him as a witness in the court and he has to identify the accused in the court. Then alone it would become substantive evidence."
40. The complainant has stated that he was shown 11 photographs out of which he has identified two photographs of the accused persons and thus, it is not the case that he has specifically shown the photographs only of the accused persons and was asked to identify the accused persons at the time of TIP or in the court. Complainant has clearly stated that he was identifying FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.31 of 35 them on the basis of his own memory of the incident. The complainant has been consistent in his stand and is reliable and trustworthy witness and in fact as he had doubts about 3rd person i.e. Rohit @ Ravit, he had not identified him in the TIP. Had the complainant been tutored by the IO or was identifying the accused persons on the asking of the IO, the complainant would have identified the 3rd person i.e. Rohit @ Ravit also.
41. In Umar Abdul Sakoor Sorathia Vs. Intelligence Officer, Narcotic Control Bureau, also it was observed that there was no legal provision which prohibits the identification by photograph and the only purpose of getting of accused when identified through photographs is to ensure that the investigation is proceeding in the right direction. Moreover, identification at the time of TIP or during investigation is only corroborated evidence and it is the only identification before the court which is substantive evidence. PW-2/complainant has identified both the accused persons in the court which is substantive evidence and have stated clearly about their roles also at the time of the incident and there is nothing on record to disbelieve the testimony of the complainant rather this stand of the complainant that he has shown 11 photographs out of which he had identified two accused persons clearly show that he has been truthful in the court.
42. Even if for the sake of arguments, it is accepted that IO had shown the photographs of the accused persons to the complainant, still the same is only an irregularity during investigation. Consequences of any irregularity FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.32 of 35 during investigation have been elaborated in Dhanaj Singh v. State of Punjab (2004) 3 SCC 654 and it was observed by Hon'ble Supreme Court that the case of a defective investigation, the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer.
43. In Paras Yadav v. State of Bihar (1999) 2 SCC 126) it was held that if any negligence, lapse or omission is committed by the investigating agency, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not, the contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
44. In Ram Bihari Yadav v. State of Bihar (1998) 4 SCC 517), Hon'ble Supreme Court observed that if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law-enforcing agency but also in the administration of justice.
45. During statement of accused under Section 313 Cr.PC, accused Sunil @ Kale has taken the defence that complainant was demanding Rs.1,50,000/- for repairing of his santro car, however, no such plea was taking FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.33 of 35 during the entire trial and this, plea of demand of Rs.1,50,000/- by the complainant has been taken at the time of statement of accused. No such suggestion has been put to the complainant during his cross examination. No evidence has been led on behalf of the accused to substantiate his defence that the complainant has demanded any amount from him. No such complaint regarding demand of amount was made by the accused to the concerned court also during the entire trial and therefore, this plea by the accused is clearly an after thought and sham. It rather gives an impression that the accused has no genuine defence to make and therefore, he is raising such kind of frivolous pleas. Complainant has clearly deposed that it was accused Ajay @ Fauji who had first knocked at his window on the pretext of asking the route to Maharani Bagh and thereafter had put pistol on his right side. He has thus, given clear role of the accused Ajay @ Fauji. He has further stated that the boy who had put pistol on him and had knocked his window had sat beside him. As far as accused Sunil @ Kale is concerned, witness after pointing towards accused Sunil @ Kale has stated that he also sat besides him and had taken away all his belongings i.e. gold ring, one silver ring, Rs.3,000/- and battery of his mobile phone and his purse and all the four persons had fled along with his car bearing no. DL 8CAE 4064, however, he has not stated that accused Sunil @ Kale had also pointed out any pistol towards him. The other three alleged persons have not been apprehended. However, it is clear from the testimony of the complainant that five persons have participated in the robbing of complainant at gun point and thus, offence under Section 395 IPC is made out.
FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.34 of 35
46. Moreover, it is also not the case of the accused persons that complainant inimical towards the accused persons. Accused persons have miserably failed to explain as to why complainant PW-2 would depose falsely against them in respect of their identification and will implicate them in a case of dacoity.
47. After considering the evidences of witnesses and material placed on record, the court is of the considered opinion that prosecution has successfully proved its case beyond reasonable doubt beyond reasonable doubt that on 14.04.2014 at around 12:15 am, accused persons along with thre more associates forcibly robbed the complainant and thus, committed offence under Section 395/34 IPC. Also, accused Ajay had used pistol at the time of commission of offence and thus, he also committed offence under Section 397 IPC.
48. In view of above discussion, accused Sunil @ Kale is held guilty and convicted for offence punishable under Section 395 IPC and Ajay @ Fauji is held guilty and convicted for offence punishable under Section 395 read with Section 397 IPC.
Announced in the open court (KIRAN BANSAL) on 25.08.2023 ASJ-04/ Shahdara/KKD/Delhi FIR No.373/2014, PS. Nand Nagri State Vs. Ajay @ Fauji & Anr. Page No.35 of 35