Delhi District Court
State vs . (1) Jitender @ Jittu on 31 March, 2022
FIR No. 363/2014 P.S. Dwarka South U/s 392/397/34 IPC DOD: 31.03.2022 IN THE COURT OF SHRI VISHAL GOGNE: ADDL. SESSIONS JUDGE-04 : SOUTH-WEST DISTRICT, DWARKA COURTS: NEW DELHI Registration No. 440421/2016 CNR No. DLSW01-000398-2014 State Vs. (1) Jitender @ Jittu S/o Sh. Kanwar singh RZ-243/244, East Krishna Vihar, Najafgarh, New Delhi (2) Ram Parvesh @ Lala S/o Sh. Virender Singh VPO Khaira, PS Chhawla Najafgarh, New Delhi (3) Rajesh @ Bharti (since deceased) FIR No. : 363/2014 Police Station : Dwarka South Under Sections : 392/397/34 IPC Date of committal to Sessions Court : 11.12.2014 Date on which judgment was reserved: 30.03.2022 Date on which Judgment pronounced : 31.03.2022 JUDGMENT
BRIEF FACTS OF THE CASE:
1. The present trial relates to sections 392/397 and 174A IPC. The allegations emerging from the charge sheet may be State V/s Jitender @ Jittu & Ors. Page 1 of 24 FIR No. 363/2014 P.S. Dwarka South U/s 392/397/34 IPC DOD: 31.03.2022 noted at the outset.
2. On receipt of a DD entry No. 19A (Ex. PW17/A) by ASI Daya Ram (PW-17) on 13.06.2014 regarding robbery of a vehicle, he reached the main road outside Aggarwal Sweets, Sector 12, Dwarka where he met complainant Mohd. Salim Ansari (PW-4).
3. The FIR (Ex.PW11/A) came to be recorded on the statement dated 13.06.2014 (Ex.PW4/A) made by the complainant to ASI Daya Ram.
4. The allegations recorded in the FIR are as under.
5. The complainant stated that he was a driver by profession and had taken Ms. Shashi Mittal (PW-3) who is the wife of his employee namely Parveen Mittal (PW-2) in car bearing No. DL-
9CAB-5659 (silver colour, make Swift) to Sector 10 Dwarka market at about 12:30 pm. When he reached opposite Aggarwal Sweets, he parked his car in the shade under a tree. Ms. Shashi Mittal left for purchasing some articles at Sector 12 Dwarka. At about 12:50 pm, three boys came towards the car in which the complainant was sitting. One of them opened the front left door of the car while another assailant approached from the driver side and asked him to get out of the car after questioning him about the reason for sitting in the same. The same assailant (the one who approached the complainant from the driver side) started beating him. The assailant who had entered from the front left State V/s Jitender @ Jittu & Ors. Page 2 of 24 FIR No. 363/2014 P.S. Dwarka South U/s 392/397/34 IPC DOD: 31.03.2022 door then placed a pistol on the head of the complainant and threatened to kill him if he did not get out of the car. The third assailant sat on the back seat of the car. The complainant got out of the car due to fear and the three assailants escaped in his vehicle.
6. Two of the purported assailants namely Jitender @ Jittu and Ram Parvesh @ Lala came to be arrested on 29.08.2014 by the officials of the Crime Branch, Prashant Vihar in FIR No. 81/2014 dated 28.08.2014 under sections 411/482/34 IPC and 25 Arms Act. The car robbed from the complainant was allegedly recovered from them while they disclosed their involvement with accused Rajesh @ Bharti in the incident of robbery upon the complainant in the present FIR.
7. Accused Jitender and Ram Parvesh were then formally arrested in the present matter. Both of them refused to participate in the TIP proceedings. However, they were purportedly identified by the complainant during their police custody remand. The complainant purportedly stated to the IO (PW-21) in his supplementary statement under section 161 Cr.PC dated 15.08.2014 that accused Jitender @ Jittu assaulted him from the driver side whereas accused Ram Parvesh had threatened him in order that he would remain quite while also assaulting him. The complainant further stated to the IO that a third assailant had threatened him with a pistol from the conductor side of the car.
State V/s Jitender @ Jittu & Ors. Page 3 of 24FIR No. 363/2014 P.S. Dwarka South U/s 392/397/34 IPC DOD: 31.03.2022
8. The purported third accused namely Rajesh @ Bharti was traced after he was arrested in FIR No. 304/2014 (Ex.PW18/A) at PS Rohtak City and produced through production warrants on 29.09.2014 before the court of the Ld. MM at Dwarka. Accused Rajesh @ Bharti, upon being formally arrested, had disclosed that he had committed the robbery along with accused Jitender and Ram Parvesh relating to the Swift car in question on 13.06.2014. Further, that after using the said car, he had handed over the same to accused Ram Parvesh and Jitender @ Jittu while the pistol in question was seized from him on 19.07.2014 as he was preparing to commit robbery at Petrol Pump at Rohtak, Haryana.
9. Accused Rajesh @ Bharti also refused to participate in the TIP. However, the IO could not secure the presence of the complainant to identify him during investigation.
10. The charge sheet was filed against all three accused persons. While accused Jitender @ Jittu and Ram Parvesh @ Lala were forwarded for trial under sections 392/34 IPC, accused Rajesh @ Bharti was forwarded for trial under sections 397/392/34 IPC.
11. Charge was framed against all accused persons namely Jitender @ Jittu, Ram Parvesh @ Lala and Rajesh @ Bharti under sections 392/34 IPC as under.
"That on 13.06.2014, at about 12.50 pm, in front of Aggarwal Sweets, Main Road, Sector-12 Dwarka, New Delhi, within the State V/s Jitender @ Jittu & Ors. Page 4 of 24 FIR No. 363/2014 P.S. Dwarka South U/s 392/397/34 IPC DOD: 31.03.2022 jurisdiction of P.S. Dwarka South, you all in-furtherance of common intention committed robbery of a Silver colour Swift Maruti Car no. DL-9C-AB-5659 from the possession of complainant Md. Saleem Ansari son of Md. Mohim Ansari and thereby you all committed the offence punishable under Section 392/34 IPC and within my cognizance.
ASJ-04/ Dwarka Courts"
12. Charge was separately framed against accused Rajesh @ Bharti under section 397 IPC as under:
"That on 13.06.2014, at about 12.50 pm, in front of Aggarwal Sweets, Main Road, Sector-12 Dwarka, New Delhi, within the jurisdiction of P.S. Dwarka South, you while committing robbery with the complainant Md. Saleem Ansari, used deadly weapon that is a pistol and thereby you committed the offence punishable under Section 397 IPC and within my cognizance. And I hereby direct that you all to be tried for the above said offence.
ASJ-04/ Dwarka Courts"
13. A separate charge under section 397 IPC was subsequently also framed against accused Jitender @ Jittu as under:
"That on 13.06.2014, at about 12.50 pm, in front of Aggarwal Sweets, Main Road, Sector-12 Dwarka, New Delhi, within the jurisdiction of P.S. Dwarka South, you while committing robbery with the complainant Md. Saleem Ansari, used deadly weapon that is a pistol and thereby you committed an offence punishable under section 397 IPC and within my cognizance.
And I hereby direct that you be tried for the above said offence by this Court.
ASJ-04:Delhi/08.01.2015"State V/s Jitender @ Jittu & Ors. Page 5 of 24
FIR No. 363/2014 P.S. Dwarka South U/s 392/397/34 IPC DOD: 31.03.2022
14. As accused Jitender absconded during trial, a proclamation under section 82 Cr.PC came to be initiated against him and he was declared a proclaimed offender on 04.07.2017. Accused Jitender was subsequently apprehended and has since faced trial from judicial custody. Consequently, an additional charge under Section 174A IPC was framed against him on 19.02.2020 as under:
"That, you accused, on or before 08.03.2017, failed to appear in the Court, as required by the proclamation published u/s 82(1) Cr. P.C. against you at your house at RZ-243/244, East Krishna Vihar, Najafgarh, New Delhi and you were consequently declared proclaimed offender on 02.05.2017 by the Predecessor of this Court and thus, you thereby committed an offence punishable under section 174-A IPC and within the cognizance of this Court.
And I hereby direct that you accused be tried by this Court for the aforesaid charge.
ASJ-3 & Special Judge (Companies Act)"
15. Upon an application moved by the State under section 216 Cr.PC for amendment of the charge to incorporate sections 411/482/34 IPC in the charge, the Ld. Predecessor Court further framed an additional charge against accused Ram Parvesh @ Lala and Jitender @ Jittu under sections 411/482 IPC on 19.02.2020 as under:
That on 28.07.2014 in front of Vasudha Apartment, Sector-11, Rohini, near Metro Walk, both of you were found in the possession of robbed vehicle i.e. Swift Car bearing registration No. DL-9C-AB-5659 with fake number plate i.e. HR-26-BU-5937, which both of you retained knowing or having reason to believe that the same had been robbed, and thus, you State V/s Jitender @ Jittu & Ors. Page 6 of 24 FIR No. 363/2014 P.S. Dwarka South U/s 392/397/34 IPC DOD: 31.03.2022 both thereby committed offences punishable u/s 411/482 IPC and within the cognizance of this Court.
And I hereby direct that you both accused be tried by this Court for the aforesaid charge.
ASJ-3 & Special Judge (Companies Act)
16. Accused Rajesh @ Bharti expired during the course of trial and proceedings stand abated qua him vide order dated 19.02.2020 recorded by the Ld. Predecessor of this court.
17. The prosecution examined 21 witnesses in support of the various articles of charge.
18. The deposition of these witnesses is discussed in brief as under.
19. The owner of the vehicle in question namely Pramod Kumar Mittal and his wife Ms. Shashi Mittal were examined as PW-2 and PW-3 respectively. PW-2 identified the vehicle from photographs Ex.PW2/B1 to Ex.PW2/B5 whereas PW-3 deposed that her driver namely Mohd. Salim had informed her on 13.06.2014 that three persons had robbed the vehicle from him on gun point.
20. The complainant namely Mohd. Salim deposed as PW-4. His deposition shall be discussed at greater length when the court takes up the issue of identification of the accused persons as the purported assailants.
21. The police official who received the DD entry No. 19A State V/s Jitender @ Jittu & Ors. Page 7 of 24 FIR No. 363/2014 P.S. Dwarka South U/s 392/397/34 IPC DOD: 31.03.2022 regarding the incident of robbery of the car on 13.06.2014 was PW-17 (ASI Daya Ram) who proved the said entry as Ex.PW17/A and also his endorsement on the complaint made by Mohd. Salim (PW-4) as Ex. PW17/B. He then dispatched the rukka for registration of the FIR.
22. Another police officer i.e. Ct. Chand deposed as PW-6 to the effect that he had accompanied PW-17 to the place of incident i.e. in front of Aggarwal Sweets, Sector 12 Dwarka where they met complainant Mohd. Salim Ansari. PW-6 carried the rukka prepared by PW-17 to the police station and got recorded FIR No. 363/2014 PS Dwarka. The FIR was proved as Ex.PW11/A by the Duty Officer (PW-11) who also identified the endorsement on the rukka as Ex.PW11/B.
23. The next category of witnesses who deposed regarding the circumstances of arrest of accused Jitender and Ram Parvesh were PW-10, PW-14, PW-16 and PW-17.
24. Two elaborate on their statements, PW-10 (HC Lakhwinder) deposed that on 28.07.2014 while he was present with Ct. Ravinder and SI Surender Dalal (PW-14) at the office of the Crime Branch, Prashant Vihar, Ct. Ravinder received secret information regarding the suspects namely Ram Parvesh and Jitender coming near Sector 9 Metro Station, Rohini. As these officers went to the said location, they noticed one silver colour Swift car bearing a Haryana registration plate approaching them State V/s Jitender @ Jittu & Ors. Page 8 of 24 FIR No. 363/2014 P.S. Dwarka South U/s 392/397/34 IPC DOD: 31.03.2022 at about 12:15 pm. As the car stopped and two persons got out of the same, they were identified by the secret informer. The police team apprehended them both and their names were revealed to be Ram Parvesh and Jitender.
25. PW-10 identified these two accused persons during his deposition and further stated that one pistol and cartridge were purportedly recovered from accused Ram Parvesh whereas one country made pistol was recovered from accused Jitender. The pistol with accused Jitender was found to be loaded with three live cartridges. Verification by the police officials revealed that the car in question related to registration at Delhi and was the subject of robbery.
26. PW-10 proved the seizure memo of the car as Ex.PW7/B and also deposed that the IO (PW-14) got registered FIR No. 81/2014 apart from recording disclosure statements of both accused as (Ex.PW/C and Ex.PW7/D respectively).
27. PW-10 identified the car from the photographs already Ex.PW2/B-1 to Ex.PW2/B-4 and the chassis number already Ex.PW2/B-5.
28. The first IO of FIR No. 81/2014 was Inspector Surender Dalal (PW-14) who, apart from corroborating the statement of PW-10, clarified the number recorded on the registration plate of the Swift car when stopped by the police team as HR-26BU- 5937. He also revealed the original registration number as DL-
State V/s Jitender @ Jittu & Ors. Page 9 of 24FIR No. 363/2014 P.S. Dwarka South U/s 392/397/34 IPC DOD: 31.03.2022 9CAB-5659.
29. The two number plates bearing the registration No. HR- 26BU-5937 were identified by him as Ex.P-1 and Ex.P-2.
30. PW-14 corroborated PW-10 in the matter of recovery of the pistols and cartridges from the accused persons. However, these pistols and cartridges were not produced during the examination in chief of PW-14. Yet, at the end of his cross examination, the MHC(M) produced two pistols. The court observed that one pistol was having a black plastic butt whereas the country made pistol/katta was having a wooden butt.
31. The second IO from FIR No. 81/2014 i.e. PW-16 (SI Sanjay) also asserted the factum of arrest and the purported disclosure statements of accused Ram Parvesh and Jitender as Ex.PW7/C and Ex.PW7/D apart from affirming the seizure memo Ex.PW7/B.
32. The Duty Officer who recorded FIR No. 81/2014 was examined as PW-11 and proved a copy of the FIR as Ex.PW11/A.
33. To complete the evidence regarding FIR No. 81/2014, the original judicial record of the said charge sheet was produced by the concerned Ahlmad (PW-7). This witness too affirmed documents Ex.PW7/A to Ex.PW7/D.
34. This brings the court to the police witnesses relating to investigation of the present FIR inter alia PW-8, PW-13 and PW-
State V/s Jitender @ Jittu & Ors. Page 10 of 24FIR No. 363/2014 P.S. Dwarka South U/s 392/397/34 IPC DOD: 31.03.2022
21. While PW-21 was the Investigating Officer, PW-13 and PW-8 accompanied him during various investigative processes.
35. PW-21 deposed that after investigation of the present FIR was handed over to him on 13.06.2014, he collected the FIR and original rukka and thereafter reached the place of incident with Ct. Chand. ASI Daya Ram (PW-17) was also present at the spot with complainant Mohd. Salim (PW-4) and Ms. Shashi Mittal (PW-2). PW-21 proved the site-plan Ex.PW21/A, application for judicial TIP of accused Jitender and Ram Parvesh (Ex.PW21/B), an application seeking their police custody (Ex.PW21/C) and the previously exhibited documents inter alia:
(i) Pointing out memo of the place of incident (Ex.PW5/A);
(ii) Seizure memo of the car (Ex.PW12/A);
(iii) Photographs of the car (Ex.PW2/B-1 to Ex.PW2/B-5);
(iv) Disclosure statements of accused Rajesh @ Bharti
(Ex.PW13/F);
(v) Documents of the FIR No. 304/2014 (Ex.PW18/A) against
Rajesh @ Bharti i.e. Mark 19/A and 19/B.
36. PW-13 deposed that he had joined investigation with the IO SI Rakesh Kumar (PW-21) on 12.08.2014. This witness proved the arrest memos of Jitender and Ram Parvesh as Ex.PW13/A and Ex.PW13/B apart from their disclosure statements (Ex.PW13/C and Ex.PW13/D). He also proved the State V/s Jitender @ Jittu & Ors. Page 11 of 24 FIR No. 363/2014 P.S. Dwarka South U/s 392/397/34 IPC DOD: 31.03.2022 arrest memo of accused Rajesh @ Bharti as Ex.PW13/E and his purported disclosure statement Ex.PW13/F.
37. The last witness relating to the present charge sheet was PW-8 (Ct. Kuldeep Singh) who deposed that he had joined investigation with PW-12 and PW-13 on 14.08.2014 when accused Jitender and Ram Parvesh were taken into police custody and then pointed out the place of occurrence through pointing out memo Ex.PW5/A.
38. Besides, three witnesses of a formal nature were examined as PW-9, PW-12 and PW-20.
39. PW-9 (HC Rajender Sharma) proved the entry in register No. 19 relating to deposit of five pullandas of accused prepared by ASI Ramphal (PW-19) in FIR No. 304/2014.
40. PW-12 (Ct. Satpal) was the police official who collected the number plates having No. HR-26BU-5937 and DL-9CAB-
5659 from the Malkhana of PS Crime Branch Nehru Place on 19.08.2014. He then handed over the articles to the IO of the present case and proved the memo Ex.PW12/A through which these were taken into possession by the IO.
41. The last formal witness was HC Surender (PW-20) who tendered the dossier (Ex.PW20/A) of accused Jitender showing 11 cases against him and the previous involvement list of accused Ram Parvesh @ Lala (reflective of eight cases) as Ex. PW20/B.
42. The two accused persons denied the incriminating State V/s Jitender @ Jittu & Ors. Page 12 of 24 FIR No. 363/2014 P.S. Dwarka South U/s 392/397/34 IPC DOD: 31.03.2022 evidence projected to them during their statements under section 313 Cr. PC and did not lead any evidence in defence.
43. During the course of final arguments, it was submitted by Mr. Yogendra Adari, Ld. Additional Public Prosecutor that the principal eye witnesses i.e. PW-4 had cogently established the offence of robbery by identifying the two accused namely Jitender @ Jittu and Ram Parvesh @ Lala. Also, that the recovery of the car had been proved beyond doubt by three police witnesses inter alia, PW-10, PW-14 and PW-16. Further, that the recovery of the fake number plates affixed on the car had been proved by PW-14. The Ld. Prosecutor thus prayed for conviction of the two accused persons under sections 397 and 482 IPC.
44. In defence, Mr. A S Bhullar, the ld counsel for both accused agitated that PW-4 had expressed a material contradiction in his deposition when compared with his supplementary statement to the IO dated 14.08.2019 viz wrongly describing accused Jitender @ Jittu as the accused who had threatened him with a pistol from the left side of the car. The counsel submitted that in his statement dated 15.08.2014, complainant Salim (PW-4) had rather stated that it was the third accused (deceased accused Rajesh @ Bharti) who had threatened him with a pistol from the conductor side of the car.
45. The ld. Counsel for the accused persons next contested the purported recovery of the stolen car from the accused persons on State V/s Jitender @ Jittu & Ors. Page 13 of 24 FIR No. 363/2014 P.S. Dwarka South U/s 392/397/34 IPC DOD: 31.03.2022 the submission that no public witnesses were joined to the said proceedings and that the IO (PW-14) could not recall as to which accused out of Jitender @ Jittu and Ram Parvesh @ Lala had been driving the car when intercepted by the police team on 28.07.2014. The counsel thus prayed that the accused persons be acquitted of all articles of charge.
46. The court would first take up the charge under sections 392/397 IPC.
47. It may be highlighted at the inception of the discussion to follow that the purported pistol used by one of the assailants in the incident dated 13.06.2014 to threaten complainant Salim (PW-4) was not cited as having been recovered. Since the police witnesses related to arrest of the two accused namely Jitender @ Jittu and Ram Parvesh @ Lala only alluded to recovery per se of pistols from these two accused persons and did not even contend that the same were used in the incident dated 13.06.2014, the use of a pistol by either assailant remains not proved.
48. To elaborate, PW-10 HC Lakhwinder deposed regarding recovery of a pistol each, alongwith cartridges, from both accused while PW-14 (Inspector Surinder Dalal) reiterated the same. At the end of the cross examination of PW-14, two pistols were produced but the witness did not assert that the same were used in the incident dated 13.06.2014. Besides, no forensic evidence was even cited to draw a link between these two pistols State V/s Jitender @ Jittu & Ors. Page 14 of 24 FIR No. 363/2014 P.S. Dwarka South U/s 392/397/34 IPC DOD: 31.03.2022 and the offence in question. The pistol purportedly recovered from co-accused Rajesh @ Bharti (since deceased) was not produced either.
49. Hence, the aggravated form of robbery, punishable under section 397 IPC, is not under consideration against either of the two accused persons.
50. The charge under consideration effectively is section 392 IPC.
51. Here, the sole eye witness i.e. PW-4 deposed with certainty that the robbery had been committed by the three accused persons (including the since deceased accused Rajesh @ Bharti. He identified both - accused Jitender @ Jittu and Rajesh @ Bharti as the assailants who had committed the robbery of vehicle No. DL 9CAB 5659 from him at about 12:50 pm on 13.06.2014 in front of Aggarwal Sweet Shop, Sector-12, Dwarka Market.
52. Since PW-4 specifically testified that one of the assailants had slapped him and pulled him out of the car while another threatened him with a pistol, the element of hurt or instant hurt as well as the threat of instant hurt, which are all elements of robbery (as the aggravated form of theft defined under section 390 IPC), is established beyond doubt. The non recovery of the pistol does not indicate that the complainant was not put to fear of instant hurt. The deposition of PW-4 did not suffer from any State V/s Jitender @ Jittu & Ors. Page 15 of 24 FIR No. 363/2014 P.S. Dwarka South U/s 392/397/34 IPC DOD: 31.03.2022 lack of assertion or positive identification.
53. The Ld. Counsel for the accused persons had pointed to the seeming contradiction in the account given by PW-4 regarding the identity of the assailant who threatened him with a pistol. It is indeed the case that while PW-4 claimed that accused Jitender @ Jittu had threatened him with a pistol from the left side of the car, the confrontation of this witness with his previous statement dated 15.08.2014 (Ex. PW4/D1) did reveal that the said statement recorded accused Jitender to have come from the driver side of the car.
54. The court would observe that it is the substance of the examination of a witness which must convince the court towards a finding of guilt or otherwise of the accused. What emerges as the substance of the deposition of PW-4 is that he could confidently identify accused Jitender, Ram Parvesh and Rajesh as the three assailants. He did not depart from the essential content of his original complaint (Ex. PW4/A) to the police which had alleged that three assailants had robbed the car. The witness repeated the same account in court and also specified that one accused had slapped him while the other pointed a pistol at him. He then stated that the third accused had opened the back door of the car. Hence, the gist of the allegations has been sustained in the deposition of PW-4 and he has identified each of the accused persons as the assailants in the incident dated 13.06.2014.
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55. In this view, the court is not persuaded to treat the seeming contradiction regarding only the direction from which each accused entered the car as a ground to doubt the substance of the deposition rendered by PW-4. A person suddenly subjected to the trauma of a concerted attack by three persons, possibly using a pistol and certainly having assaulted him, is not expected to remember each detail of the incident after the passage of even a reasonable period of time. The witness had no particular motive to falsely implicate the accused persons either. The court would thus trust the deposition in court as the correct recollection and depiction of the incident by PW-4.
56. The deposition of PW-2 i.e. the owner of the car and PW-3 who was travelling with PW-4 to the market serves as an ancillary proof of the chain of events which led to the robbery.
57. The court thus records it as a finding that the deposition of PW-4 establishes the commission of robbery of car No. DL 9CAB 5659 by accused Jitender @ Jittu and Ram Parvesh @ Lala alongwith accused Rajesh @ Bharti (since deceased) beyond any reasonable doubt.
58. Since both accused persons are proved from the deposition of PW-4 to have acted in concert with each other and Rajesh @ Bharti (since deceased) to enter the car of PW-1 from different directions, having threatened him and then escaping with the car, State V/s Jitender @ Jittu & Ors. Page 17 of 24 FIR No. 363/2014 P.S. Dwarka South U/s 392/397/34 IPC DOD: 31.03.2022 it also stands proved that they acted with a common intention to commit robbery. Both accused are thus liable to be convicted under section 392 IPC read with section 34 IPC.
59. While the proof of the robbery and the conviction it shall entail under section 392 IPC obviates the prospect or necessity of any conviction under section 411 IPC, which is the other charge against the two accused persons, the deposition of the police witnesses regarding the recovery of the car in question from the said two accused persons does serve as corroborative evidence of the culpability under section 392 IPC itself.
60. PW-10 (HC Lakhwinder) deposed that the police team from the crime branch had apprehended accused Jitender and Ram Parvesh with the car in question on 28.07.2014 at the Rohini Sector-09, Metro Station upon secret information being received. This witness identified both accused persons and also identified the car i.e. Maruti Swift from its photographs Ex. PW2/B1 to PW2/B4. He further identified the photographs of the chassis number of the car as Ex. PW2/B5.
61. The ld. Counsel for the accused had confronted this witness with his statement under section 161 Cr.PC (Ex. PW10/D1) which had recorded only the partial engine number and chassis number. The court does not find the same to be a material aspect as the witness identified the two accused, deposed regarding the recovery of the car from them and also State V/s Jitender @ Jittu & Ors. Page 18 of 24 FIR No. 363/2014 P.S. Dwarka South U/s 392/397/34 IPC DOD: 31.03.2022 identified the car as well as its chassis number/engine number from the photographs.
62. Infact, the witness also affirmed his signatures on the recovery memo of the car (previously exhibited as Ex. PW7/B). This recovery memo records the correct details of the registration number, engine number and chassis number of the car.
63. The court does not doubt the deposition of PW-10 only because he was a police official.
64. The next witness related to the recovery of the car was PW-14 (Inspector Surender Dalal). This witness also identified the two accused persons as having been apprehended with the car of the make Swift and which was silver in colour. Though this witness could not initially recall as to which of the accused were driving the car, he did depose that both accused persons viz Ram Parvesh and Jitender were present in the car when it was intercepted near the Rohini West Metro Station. This witness also recounted the last digits of the engine number and chassis number correctly when cross examined by the counsel for the accused.
65. In sum, the deposition of PW-14 does not suffer from any material infirmity either. The court is not inclined to cast doubt on the version of recovery only because PW-10 and PW-14 are police witnesses. While corroboration may be a requirement in prudence, there is no rule in law requiring that police witnesses State V/s Jitender @ Jittu & Ors. Page 19 of 24 FIR No. 363/2014 P.S. Dwarka South U/s 392/397/34 IPC DOD: 31.03.2022 must always be corroborated by public witnesses.
66. As noted earlier, the court is not examining the deposition of PW-10 and PW-14 in the prism of section 411 IPC but rather treating it as additional evidence of a corroborative nature with respect to the principal charge under section 392 IPC itself.
67. Seen in this template and reading the deposition of PW-4 with the account given by PW-10 and PW-14, the account of robbery of the car from PW-4 followed by its recovery from accused Jitender and Ram Parvesh by PW-10 and PW-14 together constitutes proof beyond doubt regarding the culpability of accused Jitender and Ram Parvesh under section 392 IPC.
68. The next article of charge is section 482 IPC.
69. The court has already recorded a finding that the recovery of the car in question from the above two accused stands proved beyond any doubt. The same witnesses who established the recovery inter alia PW-10 and PW-14 also deposed regarding the car having borne a Haryana registration number when it was stopped at the Rohini Metro Station on 28.07.2014. While PW- 10 deposed that the car was bearing a Haryana registration number, PW-14 deposed that the number plate on the car read HR 26BU 5937. PW-14 also identified the two number plates bearing the said number as Ex. P1 and P2 and deposed that these two were affixed on front and rear side of the car.
70. The court has believed the recovery of the car by the State V/s Jitender @ Jittu & Ors. Page 20 of 24 FIR No. 363/2014 P.S. Dwarka South U/s 392/397/34 IPC DOD: 31.03.2022 police officials in question. On ordinary standards of consistent evaluation, the court must not doubt the police officials on the aspect of recovery of the fake number plates either. The recovery of the car having been proved from accused Jitender and Ram Parvesh @ Lala, there is no discernible facet of the cross examination of these witnesses which indicates that the number plates were not affixed on the car when seized on 28.07.2014.
71. Since a number plate is a property mark denoting ownership of movable property (the car in question in the present trial), the two accused are liable to be held guilty for using a false property mark which is a punishable offence under section 482 IPC. No evidence was led by the accused persons to establish either (as permitted as a defence under section 482 IPC) that they did not possess any intent to defraud while using these two number plates.
72. The two accused are liable for conviction under section 482 IPC.
73. The last article of charge was against accused Jitender and related to section 174A IPC.
74. Now, it is a matter of record that accused Jitender @ Jittu was declared a proclaimed offender on 02.05.2017 by the ld. Predecessor of this court after he failed to appear on or before 08.03.2017 in the court as required by the proclamation published under section 82 (1) Cr. PC.
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75. It is quite the circumstance, however, that no evidence has been led by the prosecution in support of the charge under section 174A IPC. While the Ld. Predecessor had recorded in the ordersheet for 02.05.2017 that the statement of ASI Tilak Raj qua the process under section 82 Cr.PC against accused Jitender @ Jittu had been recorded separately and that the proclamation was thus published in accordance with law, the said finding does not translate into a conviction under section 174A IPC only by necessary implication. The statement of a process server qua execution of process under section 82 Cr. PC is necessarily recorded without cross examination during miscellaneous proceedings and does not constitute evidence qua the charge under section 174A IPC.
76. The court would highlight that the provision under section 82 Cr. PC is procedural in nature while section 174A IPC is a substantive offence. The proof of an offence must be governed by its own ingredients. While the court is mindful that section 82 (3) Cr. PC renders a statement from the court regarding the due publication of the proclamation as conclusive evidence of compliance with the requirements of section 82, such a mandate does not translate into unequivocal conviction under section 174A IPC. If this State V/s Jitender @ Jittu & Ors. Page 22 of 24 FIR No. 363/2014 P.S. Dwarka South U/s 392/397/34 IPC DOD: 31.03.2022 construction were to be accepted, every allegation under section 174A IPC would be bereft of the need for evidence and the accused shall stand convicted almost by presumption and not by proof. Such an interpretation is beyond the rules of evidence which require each fact in issue to be proved by way of evidence on oath. The deposition of every witness must necessarily be permitted to be cross examined for it to constitute admissible evidence.
77. ASI Tilak Raj was, however, neither examined nor cross examined. The proclamation purportedly published by him thus never came on record. The circumstances of the issuance and confirmation of the proceedings under section 82 Cr.PC against accused Jitender @ Jittu are mired in doubt due to inadequate evidence. The court is unable to accept that the offence under section 174 A IPC, which requires it to be proved that the accused failed to appear at the specified place and time under a proclamation under section 82(1) Cr.PC can be proved only by the implication of the order dated 02.05.2017.
78. The court would observe that the benefit of competing interpretations in a criminal trial must accrue to the accused. The inadequate evidence does lead to an equal probability of the proclamation proceedings having remained on paper and State V/s Jitender @ Jittu & Ors. Page 23 of 24 FIR No. 363/2014 P.S. Dwarka South U/s 392/397/34 IPC DOD: 31.03.2022 not having been executed as required under section 82 Cr. PC.
79. The accused is thus entitled to the benefit of doubt and acquittal under section 174A IPC.
80. Accused Jitender @ Jittu and Ram Parvesh @ Lala are convicted under section 392 IPC read with section 34 IPC as well as under section 482 IPC.
81. Accused Jitender is acquitted under section 174A IPC.
Digitally signed by VISHAL VISHAL GOGNE
GOGNE Date:
Announced in open Court today 2022.04.02
12:55:19 +0530
On 31st March, 2022 (Vishal Gogne)
Additional Sessions Judge04
Dwarka Courts, SouthWest
New Delhi
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