Delhi District Court
State vs . Ajay @ Raju & Ors. on 1 September, 2018
IN THE COURT OF MS ANJANI MAHAJAN METROPOLITAN
MAGISTRATE02 (SOUTH DISTRICT), SAKET COURTS COMPLEX,
NEW DELHI
STATE Vs. AJAY @ RAJU & ORS.
FIR No. 102/08
U/s : 392/411 IPC
P.S. : Malviya Nagar
Date of Institution : 19.12.2008
Date on which case reserved for Judgment : 13.08.2018
Date of judgment : 01.09.2018
JUDGMENT
1.FIR No. of the case : 102/08
2.Date of the Commission : 03.02.2008 & 12.02.2008
of the offence
3.Name of the accused : 1. Rajesh Parcha,
: S/o Sh. Rishi Nath,
: R/o H.No. 12/34,
: Ambedkar Nagar,
: New Delhi.
: 2. Ajay @ Raju
: S/o Sh. Ram Singh,
: R/o H. No. 99, H Block,
: Sangam Vihar, Gali No. 16,
: New Delhi
: 3. Sanjeet @ Sanjeev,
: S/o Sh. Anoop,
: R/o H. No. H 263,
: Dakshinpuri,
: New Delhi
4.Name of the complainant : Sh. Vijay Kumar,
: S/o Sh. Ram Asre Mehto,
: R/o H. No. 626/8, Gali No. 10,
: Pehla Pusta, Usman Pur, Delhi.
FIR No. 102/08 State Vs. Ajay @ Raju 1 of 10
5.Offence complained of : U/s 392/411/34 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : All three accused persons acquitted for the
: offences alleged (Accused Ajay @ Raju
convicted on his plea of guilt for the
offence u/s 174A IPC).
BRIEF FACTS:
1. Briefly stated the case of the prosecution is that on 12.02.2008 at J.J. Colony, Tigri Khanpur, near Tikona Park, New Delhi, accused persons Rajesh Parcha and Sanjeet @ Sanjeev were found in possession of Tata Qualis No. HR55 CT6385 which was robbed on 03.02.2008 between 09:30 pm to 11:15 pm from Lado Sarai Bus Stand, New Delhi which the accused persons in furtherance of their common intention retained dishonestly knowing and having reasons to believe the same to be stolen property and thereby they committed the offence punishable under sections 411/34 IPC. It is further alleged by the prosecution that accused Ajay @ Raju alongwith his coassociates Rajesh Parcha and Sanjeet @ Sanjeev in furtherance of their common intention committed robbery of Tata Qualis No. HR 55CT6385 belonging to the complainant/PW1 Sh. Vijay Kumar and thus thereby committed offence punishable U/s 392/34 IPC.
2. Further it is alleged against the accusedAjay @Raju that on 28.02.2012 he failed to appear before the Court despite proclamation for him to appear being published U/s 82 Cr.P.C. and thus the accused committed the offence U/s 174A IPC.
3. FIR No. 102/08 was registered at police station Malviya Nagar on the FIR No. 102/08 State Vs. Ajay @ Raju 2 of 10 basis of aforesaid allegations.
4. After completion of investigation charge sheet under sections 392/411/34 IPC was filed before the court on 19.12.2008.
5. On the basis of prima facie material available on the record charge for the offence punishable under section 392/411/34 IPC was framed against Rajesh Parcha and Sanjeet @ Sanjiv to which the accused persons pleaded not guilty and claimed trial on 10.05.2012. Charge U/s 392/411/34 IPC and Section 174A IPC is framed against the accused Ajay @ Raju on 02.12.2015 to which the accused pleaded not guilty and claimed trial. However vide the order dated 30.08.2018 the accused Ajay @ Raju was convicted on his plea of guilt for the offence U/s 174 A IPC and was sentenced to the period already undergone by him in judicial custody.
THE TRIAL PROCEEDINGS:
6. In order to establish its case, the prosecution has examined twelve witnesses.
a) PW1 was the complainant Sh. Vijay Kumar. He exhibited his written complaint as Ex. PW1/A.
b) PW2 was Ms. Monika Arora in whose name the sim no. 9958254991 was issued without her knowledge.
c) PW3 was the Duty Officer (DO) HC Charan Singh. He exhibited the FIR as Ex. PW3/A and his endorsement on the rukka as Ex. PW3/B.
d) PW4 was HC Satyapal. He exhibited the disclosure statement of accused Ajay @ Raju as Ex. PW4/A, arrest memo as Ex. PW4/B, arrest memo of accused Rajesh Parcha as Ex. PW4/C, personal search memo as Ex. PW4/D, disclosure statement of accused Rajesh Parcha as Ex. PW4/E, seizure memo of vehicle bearing no. HR55CT6385 as Ex. PW4/F, pointing out memo as Ex.
PW4/G and photographs of the case property as Ex. P5/1 to Ex.P5/8.
FIR No. 102/08 State Vs. Ajay @ Raju 3 of 10
e) PW5 was the registered owner of the vehicle in question i.e. Qualis
car bearing no. HR55CT6358 namely Sh. Dharambir Singh.
f) PW6 was ASI Charan Singh. He exhibited the DD No. 26 as Ex. PW6/A and arrest memo and disclosure statement of accused Sanjeev as Ex. PW6/B and Ex. PW6/C respectively.
g) PW7 was ASI Jagdish Pal. He was cross examined by Ld. Defence counsel.
h) PW8 was the Nodal Officer from Bharti Airtel Ltd. namely Sh. Surender Kumar.
I) PW9 was the Nodal Officer from Idea Cellular Ltd namely Sh. Pawan Singh.
j) PW10 was ASI Lav Kumar who arrested the accused Ajay @ Raju in kalandara U/s 41.1(C) Cr.P.C. He exhibited the kalandara U/s 41.1 (C) as Ex. PW10/A, arrest memo of accused Ajay @ Raju as Ex. PW10/B and DD No. 42B as Ex. PW10/C.
k) PW11 was the Investigating Officer (IO) of the present case SI Jitender Kashyap. He exhibited the site plan as Ex. PW11/A, recovery site plan as Ex. PW11/B, seizure memo of mobile phone as Ex. PW11/C, supplementary statement of accused Sanjeev as Ex. PW11/D, seizure memo of RC and copy of insurance as Ex. PW11/E, invoice of the mobile phone as Ex. PW11/F and the mobile phone as Ex. P1.
l) PW12 was ASI Ram Tek who accompanied the IO to the house of accused Sanjeet @ Sanjeev.
7. Prosecution evidence was closed on 12.03.2018. After conclusion of prosecution evidence, the statement of accused persons Rajesh Parcha, Sanjeet @ Sanjeev and Ajay @ Raju (SA) under section 313 r/w section 281 Cr.P.C were FIR No. 102/08 State Vs. Ajay @ Raju 4 of 10 recorded on 26.03.2018. Accused persons sought to lead defence evidence.
8. Accused persons examined Smt. Simantra Devi as DW1. Ld. APP for the State moved an application U/s 311 Cr.PC for recalling the PW1 Sh. Vijay Kumar for the purpose of identification of the accused Ajay @ Raju which was allowed and PW1 was recalled. PW1 was further examined and cross examined on 13.07.2018. Supplementary statements of the accused persons were then recorded.
FINAL ARGUMENTS:
9. Thereafter final arguments were advanced by Ld. APP for the State and Ld. counsel for the accused persons. I have heard the arguments and perused the record.
REASONS FOR DECISION:
10. The prosecution's onerous responsibility is to prove its case beyond reasonable doubt which responsibility cannot be shrugged off by the prosecution.
11. The sole eye witness of the alleged incident of robbery cited and examined by the prosecution is the complainant/PW1 Sh. Vijay Kumar. It is therefore his testimony which can make or break the prosecution's entire case. PW1 exhibited his complaint as Ex. PW1/A. He also deposed about the incident of robbery however it is pertinent to note that in his crossexamination conducted by ld. Counsel for accused Sanjeet @ Sanjiv dated 16.02.2013, PW1 clearly deposed that the IO had shown the accused to him in the police station but he did not know his name (i.e. the name of the accused) and also did not remember the date. This is contrary to the prosecution's case because as per the prosecution the complainant had come outside Patiala House Court on 26.03.2008 when the accused Ajay @ Raju had been produced before the Court and the coaccused persons Rajesh Parcha and Sanjeet @ Sanjeev had come to meet Ajay @ Raju and the complainant had FIR No. 102/08 State Vs. Ajay @ Raju 5 of 10 recognized them as being three of the assailants when they came out of the Court.
12. Further, in his crossexamination dated 17.05.2016 conducted by ld. Counsel for the accused Ajay @ Raju, PW1/ complainant again testified that the police officials showed him the accused persons Rajesh and Sanjeet@ Sanjeev in the police station a few days after the incident and further deposed that the police took him for the purpose of identification of the accused persons somewhere in ITO. The aforesaid deposition casts a cloud of suspicion over the prosecution's case because nowhere in the chargesheet has it been mentioned that the complainant was taken to ITO for the purpose of identification of the accused persons. Interestingly, while on both these occasions when the complainant/PW1 was crossexamined he maintained that the accused had been identified by him in the police station, he backtracked when recalled U/s 311 Cr.P.C. for the purpose of identification of the accused Ajay @ Raju on 13.07.2018 and admitted the suggestion put to him by Ld. APP for the State to the effect that on 26.03.2008 he went to Patiala House Courts for enquiring about the status of the present case and the accused persons had been identified by him when they came out of Court.
13. When crossexamined by ld. Counsel for the accused Ajay @ Raju, the complainant/PW1 testified that he had gone to Patiala House Court for the purpose of identification of the accused persons rather than saying that he had gone for enquiring about the status of the case which is the version of the prosecution.
14. Further, PW1/complainant deposed that there were four persons who were present for the purpose of getting the TIP proceedings conducted whereas the prosecution's version is that only the three accused persons namely Ajay @ Raju, Rajesh Parcha and Sanjeet @ Sanjeev were present.
15. The accused persons had refused to participate in the Test Identification Parade proceedings vide TIP refusal reports Ex. X1 to Ex. X3 inter FIR No. 102/08 State Vs. Ajay @ Raju 6 of 10 alia on the ground that they had been shown to the witness in the police station. The earlier depositions of the complainant/PW1 actually corroborate this plea making the refusal of the accused persons for participating in the TIP proceedings seem justified and so no adverse inference can be drawn against them for not participating in the TIP proceedings.
16. The inconsistent and rather confused testimony of the complainant/PW1 also creates a huge dent on the veracity of the complainant/PW1. Further going by the earlier stand of the complainant/PW1 that the accused persons were shown to him in the police station, it seems that the investigation was not conducted in a fair manner and the identification of the accused persons by the complainant/PW1 during trial in this background cannot be made the basis of their conviction.
17. Coming next to the aspect of recovery of the robbed vehicle bearing No. HR55CT6385, it is worthwhile to note that the alleged recovery took place from Tikona Park, JJ Colony, Tigri but no public person was joined to the recovery proceedings despite the place of recovery being a public place. PW7 ASI Jagdish Pal deposed in his cross examination that at the time of recovery of the case property IO asked some public persons to join the investigation but none agreed and left the spot without disclosing their names and addresses. PW11/IO SI Jitendra Kashyap admitted that the recovery place was a public place and deposed that he did not join any public witness at the time of recovery of the stolen case property. Apparently, no sincere effort was made by the IO to join public persons to the recovery proceedings. The DD entry of the police officials pertaining to departure to the spot of recovery has not been adduced in evidence by the prosecution which would have constituted the best evidence to prove the presence of the police officials at the place of alleged recovery.
FIR No. 102/08 State Vs. Ajay @ Raju 7 of 10
18. It is of course true that nonjoining of public witnesses is not of itself fatal to the prosecution's case however when a doubt has been raised over the fairness of investigation, the relevant DD entries of the police officials have not been adduced in evidence and the IO has not deposed about any efforts at all made by him to join public persons to the recovery proceedings then the factum of non joining of public witnesses to the alleged recovery proceedings adds to the suspicion over the prosecution's case against the accused persons.
19. At this juncture, it is also important to note that the photographs of the case property i.e. vehicle no. HR55CT6385 Qualis were produced by the owner/PW5 Sh. Dharambir Singh as on 26.09.2016 it had been submitted by his counsel that the vehicle was not road worthy. The photographs were exhibited as Ex. P5/1 to Ex. P5/8 and a suggestion was put to PW5 that the number plate shown in the photograph Ex. P5/8 had been replaced with his vehicle's number plate and same was not the vehicle in question which the witness denied however a perusal of the photograph does in fact seem to show that a new number plate is affixed over an old one. Pertinently, even the ownership proof of the vehicle was never exhibited and proved in evidence. The very identity of the case property i.e. vehicle no. HR55CT6385 has not been established by the prosecution.
20. Furthermore, in the original complaint Ex. PW1/A no mention of the mobile phone of the complainant or other articles and documents also being in the car robbed by the assailants has been made has been made and the same was recorded only in the supplementary statement of the complainant. The invoice Ex. PW11/F is admittedly not in the name of the complainant. PW11 SI Jitendra Kashyap deposed that the mobile phone in question was purchased in the name of the complainant's friend however the same was used by the complainant by using his own sim card. PW11/IO admitted that the statement of the complainant's friend FIR No. 102/08 State Vs. Ajay @ Raju 8 of 10 was not recorded by him. PW11/IO voluntarily deposed that he did not record the statement of the complainant's friend as he had left his tenanted premises at New Usmanpur however this voluntarily statement of PW11 appears to be an afterthought as no such averment is contained in the chargesheet nor did the complainant/PW1 state so in his testimony.
21. Ms. Anju the person who purportedly purchased the mobile phone in question from the coaccused Rajesh and then returned it to him after one day as she did not like it remained untraceable during trial. Added to that is the fact that there was no public witness joined to the alleged recovery proceedings nor even was the site plan of the place of recovery of the mobile phone prepared by the IO/PW11.
22. PW11/IO testified during his crossexamination that when he reached the house of the accused Sanjeev he did not ask the neighbours or public persons to join the investigation. PW11/IO admitted that the recovery site plan of the mobile phone was not prepared but strangely PW12 ASI Ram Tek testified that the IO prepared the recovery site plan in his presence and that the same bore his signature. The DD entries of departure of PW11/IO and PW12 ASI Ram Tek regarding going for the investigation/recovery proceedings of the mobile phone in question have not been adduced in evidence. Thus, the chain of evidence connecting the mobile phone in question to the complainant is incomplete and there is a doubt over the recovery proceedings of the mobile phone in question from the house of the accused Sanjeet @ Sanjeev.
23. The prosecution's case is punctured with lacunae and loopholes. The identification proceedings of the accused persons are vitiated, the identity of the vehicle bearing no. HR55CT6385 has not been established and the recovery proceedings of the vehicle and mobile phone are also not free from suspicion. The prosecution has failed to successfully establish its case against the accused persons.
FIR No. 102/08 State Vs. Ajay @ Raju 9 of 10 The accused persons are entitled to the benefit of the doubt. Accordingly, all three accused persons are acquitted for the offences alleged.
24. The previous bail bonds of all three accused persons shall remain in force for a further period of six months from today u/s 437 A Cr.P.C.
25. File be consigned to record room after necessary compliance.
Digitally signed by ANJANI ANJANI MAHAJAN
MAHAJAN Date: 2018.09.06
17:00:43 +0530
Announced in the Court (ANJANI MAHAJAN)
on 01.09.2018 MM02(SD)/01.09.2018
Certified that this judgment contains ten (10) pages and each page bears my signatures.
(ANJANI MAHAJAN)
MM02(SD)/01.09.2018
FIR No. 102/08 State Vs. Ajay @ Raju 10 of 10