Delhi District Court
State vs . on 26 May, 2011
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 138/1
Unique Identification No. 02404R0498192002
State Vs.
1. Vijay Kumar
Son of Ram Chander
R/o Vill- Jahali Patti,
PO- Parsa, PS Ghugria,
District Madhubani, Bihar &
A-368 , JJ Colony, Shakurpur,
Delhi.
2. Neeraj Gupta
Son of Om Shankar Gupta
R/o H-322, JJ Colony,
Shakurpur, Delhi.
3. Vishnu @ Sonu
Son of Jagdish
R/o K-424, JJ Colony,
Shakurpur, Delhi.
4. Mohd. Niyamat Ali
Son of Mohd. Ali Hassan
R/o I-105, JJ Colony,
Shakurpur, Delhi.
FIR No. 700/2002
PS- Saraswati Vihar
U/s. 392/34 of IPC
Date of Decision: 24/05/2011
Date of Order on Sentence: 26/05/2011
SC No.138/1 1
ORDER ON SENTENCE
26/05/2011
Present. Ld. APP for the State.
Convict Vijay, Vishnu, Niyamat Ali and Neeraj are present from J.C.
with their counsel.
Heard on the point of sentence.
Learned defence counsels Sh. Amit Rao and Sh. Madan Mohan for
convict Vijay submit that convict Vijay is aged about 27-28 years. He is having two
small children. He is not a previous convict nor habitual offender. He has two
brothers, but he is eldest. He is a rickshaw puller and he has to maintain his family
and aged parents. Hence, a lenient view be taken.
Sh. J.S. Arya, counsel for convict Neeraj submits that convict Neeraj has
faced the trial since 2002. He remained punctual and regularly attended the court.
He is not a previous convict nor habitual offender. He is aged about 32 years. He
has two children. He is doing private job and has to maintain his old aged father.
Hence, a lenient view be taken.
Sh. J. S. Arya, proxy counsel for convict Vishnu submits that convict
Vishnu has faced the trial since 2002. He remained punctual and regularly attended
the court. He is not a previous convict nor habitual offender. He is aged about 27
years. He is unmarried. He is working as cable operator and has to maintain his old
aged father, who is T.B. Patient. Hence, a lenient view be taken.
Sh. J. S. Arya, proxy counsel for convict Niyamat Ali submits that
convict Niyamat Ali has faced the trial since 2002. He remained punctual and
regularly attended the court. He is not a previous convict nor habitual offender. He
is aged about 26-27 years. He is having two children. He is doing private job and is
the only earning member of the family. He has old aged parents to support. Hence,
a lenient view be taken.
On the other hand, learned Addl. PP for State submits that all the four
SC No.138/1 2
accused have been convicted for offence U/s. 392/34 of IPC. Hence, they be
punished appropriately.
U/s. 392 of IPC is punishable with imprisonment, which may extend to
10 years and shall also be liable to fine.
Convict Vijay Kumar remained in custody in this case from 20/09/2002
to 20/01/2005.
Convict Neeraj remained in custody in this case from 20/09/2002 to
11/02/2005.
Convict Vishnu remained in custody in this case from 08/10/2002 to
01/03/2005.
Convict Niyamat Ali remained in custody in this case from 08/10/2002
to 05/02/2005.
Considering the age, antecedents and character of the convicts and their
custody period during which they remained in jail, sentence of two years and three
months each is imposed upon the convicts U/s. 392 IPC read with Section 34 of
IPC with fine of Rs. 5000/- each. In defalult of payment of fine, they shall further
undergo S.I. for one year each.
Benefit of Section 428 of CrPC be given to each of the convict.
Fine deposited.
Announced in the open court (VIRENDER KR. GOYAL)
today on 26th of May 2011 ADDL. SESSIONS JUDGE
FAST TRACK COURT
ROHINI
SC No.138/1 3
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 138/1
Unique Identification No. 02404R0498192002
State Vs.
Mukesh Kumar
Son of Samay Singh
R/o I-374, JJ Colony, Shakurpur, Delhi.
FIR No. 700/2002
PS- Saraswati Vihar
U/s. 411 of IPC of IPC
Date of Decision: 24/05/2011
Date of Order on Sentence: 26/05/2011
ORDER ON SENTENCE
26/05/2011
Present. Ld. APP for the State.
Convict Mukesh from J.C. with counsel Sh. Anand Sharma.
Heard on the point of sentence.
Sh. Anand Sharma,counsel for convict Mukesh submits that convict
Mukesh has faced the trial since 2002. He remained punctual and regularly attended
the court. He is not a previous convict nor habitual offender. He is aged about 26
years. He is having three children. He is doing private job and is the only earning
member of the family. He has old aged father to support. Hence, a lenient view be
taken.
On the other hand, learned Addl. PP for State submits that accused
Mukesh has been convicted for offence U/s. 411 of IPC. Hence, appropriate
SC No.138/1 4
punishment be awarded.
U/s. 411 of IPC is punishable with imprisonment, which may extend to
three years or with fine or with both.
Convict Mukesh remained in custody in this case from 27/10/2004 to
19/11/2004 and 20/11/2004 to 08/02/2005.
Considering the age, antecedents and character of the convict Mukesh
and the value of the recovered stolen articles and his custody period during which
he remained in jail, sentence of one year and ten months is imposed U/s. 411 of
IPC upon convict Mukesh with fine of Rs. 5000/- each. In defalult of payment of
fine, he shall further undergo S.I. for nine months.
Benefit of Section 428 of CrPC be given to the convict.
Fine deposited.
Announced in the open court (VIRENDER KR. GOYAL)
today on 26th of May 2011 ADDL. SESSIONS JUDGE
FAST TRACK COURT
ROHINI
SC No.138/1 5
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 138/1
Unique Identification No. 02404R0498192002
State Vs.
1. Ram Ashish @ Manoj
Son of Mangan Mukhia
R/o Village Kadma,
PO Mungra, PS Marauna,
District Sipal, Bihar &
Jhuggi No.5, Lawrence Road, Delhi.
2. Vijay Kumar
Son of Ram Chander
R/o Vill- Jahali Patti,
PO- Parsa, PS Ghugria,
District Madhubani, Bihar &
A-368 , JJ Colony, Shakurpur,
Delhi.
3. Neeraj Gupta
Son of Om Shankar Gupta
R/o H-322, JJ Colony,
Shakurpur, Delhi.
4. Vishnu @ Sonu
Son of Jagdish
R/o K-424, JJ Colony,
Shakurpur, Delhi.
5. Mohd. Niyamat Ali
Son of Mohd. Ali Hassan
R/o I-105, JJ Colony,
Shakurpur, Delhi.
6. Mukesh Kumar
Son of Samay Singh
R/o I-374, JJ Colony, Shakurpur, Delhi.
SC No.138/1 6
FIR No. 700/2002
PS- Saraswati Vihar
U/s. 395/397/412 IPC &
25/27/54/59 Arms Act
Date of institution of the case: 16/12/2002
Arguments heard on: 02/05/2011
Date of reservation of order: 02/05/2011
Date of Decision: 24/05/2011
JUDGMENT
This case was registered U/s. 395/397 of IPC and U/s. 27 of Arms Act in PS Saraswati Vihar on the statement of one Trishpal Jain on 11/09/2002.
Rough site plan was prepared. On 12/09/2002, during investigation, one Fiat Palio car No. DL-8CG-9187 alongwith key was found abandoned in Sector-16 on the dividing road of B2-B3, Rohini, Delhi. Crime team was called. Car was inspected by crime team and dog squad was called. Photographs of the same were taken. It was seized by preparing a memo. Crime team report was taken. On the same day, from the car, one almond colour cloth and one knife were recovered. Sketch of the knife was prepared. Both the articles were sealed in a pullanda with the seal of OPY and were seized in this case. On 16/09/2002, report of finger print expert was also obtained. No chance prints were found on the keys recovered from the car.
Photographs of the house were taken. Seizure memo of key of the car No. DL-8CJ-9817 was also prepared separately.
On 20/09/2002, from one of the accused Ram Ashish, one gold Matarmala was recovered. It was sealed in a pullanda with the seal of OPY and was seized in this case in presence of complainant. Sketch of the same was prepared. Two gold bangles and one necklace weighing 36.700 gm and 54.640 gms respectively were also recovered from one of the accused Neeraj Gupta in presence of the complainant. These were sealed in a pullanda with the seal of OPY and were SC No.138/1 7 seized by preparing a memo. One necklace and four gold bangles were recovered from accused Vijay Yadav in presence of complainant. These were weighing respectively 33.260 gms and 41.690 gm. These were also sealed in a pullanda with the seal of OPY and were seized in this case. One loaded country made katta was also recovered from the possession of accused Vijay Yadav containing one live cartridge. These were sealed in a pullanda with the seal of OPY and were seized in this case. One camera make Canon was also recovered from accused Neeraj Gupta. It was seized in this case by preparing a memo.
Accused Ram Ashish, Neeraj Gupta and Vijay Kumar pointed out the place of robbery on 20/09/2002 separately. Disclosure statements of accused Ram Ashish, Neeraj Gupta and Vijay Kumar were also recorded on 20/09/2002. Accused Vijay Yadav also produced some articles, which he had purchased from share of robbed money, which were also seized in this case on 20/09/2002 by preparing a memo. Accused Ram Ashish, Vijay Yadav and Neeraj Gupta were arrested in this case on 20/09/2002. Their personal searched were also conducted on 20/09/2002.
One button actuated knife was recovered from accused Vishnu. Sketch of the same was prepared on 08/10/2002. Accused Mohd. Niyamat Ali and Vishnu also pointed out the place of robbery on 08/10/2002. Disclosure statements of accused Mohd. Niyamat Ali and Vishnu were recorded on 08/10/2002. Accused Vishnu got recovered one gold chain kept in a purse from his house in presence of the complainant. It was weighing 29.750 gms. It was sealed in a pullanda with the seal of "OPY" and was seized in this case. Accused Mohd. Niyamat Ali also got recovered on gold chain from his house alongwith purse of New Kailash Jewellery House, 2396 Hardhyan Singh Road, Karol Bagh, Delhi, weighing 14.920 gms. It was also sealed in a pullanda with the seal of "OPY" and was seized by preparing a memo on 08/10/2002. One button actuated knife recovered from accused Vishnu was also seized in this case after sealing the same in a pullanda with the seal of SC No.138/1 8 "OPY" in presence of complainant on 08/10/2002 by preparing a memo.
Accused Vishnu and Mohd. Niyamat Ali were arrested on 08/10/2002. Their personal searches were also conducted on the same day.
Accused Mukesh made disclosure statement on 20/02/2003 and 21/02/2003. Accused Mukesh also got recovered one gold chain weighing 23.5 gms, which was sealed in a pullanda with the seal of "RKS" and was seized in this case by preparing a memo. On 20/02/2003, accused Mukesh was asked to join the TIP proceedings, but he refused to join the same. TIP of case property was also got conducted i.e. one gold chain, sealed with the seal of "RKS" and the same was correctly identified by the complainant before the Ld. MM. Accused Mukesh was arrested in this case on 20/02/2003 and his personal search was also conducted. Accused Mukesh also pointed out the place of occurrence on 21/02/2003 and the pointing out memo was prepared in this respect. Sanction U/s. 39 of Arms Act was also obtained against accused Vijay Yadav regarding one country made katta and live cartridge.
On completion of investigation, charge-sheet was filed against accused Ram Ashish, Vijay Kumar, Neeraj Gupta, Vishnu and Mohd. Niyamat Ali U/s. 395/397/412 IPC & 25/27 of Arms Act. Supplementary Charge Sheet against accused Mukesh was also filed separately U/s. 395/397/412 of IPC and 25/27 of Arms Act.
During the proceedings, FSL report regarding country made katta and cartridge was also filed.
On 01/10/2003, case was committed to the Court of Session. It was received in the Court of Session.
On 22/11/2003, charge was framed against accused Mukesh, Ram Ashish, Vijay Kumar, Neeraj Gupta, Vishnu and Mohd. Niyamat Ali U/s. 395/34 of IPC to which they pleaded not guilty and claimed trial.
On the same day, charge U/s. 412 of IPC was also framed against accused Mukesh, Ram Ashish, Vijay, Neeraj Gupta, Vishnu, Mohd. Niyamat Ali SC No.138/1 9 separately to which they pleaded not guilty and claimed trial.
Charge U/s. 397 of IPC was also framed against accused Mukesh, Vijay Kumar and Vishnu separately to which they pleaded not guilty and claimed trial.
Charge U/s. 25 of Arms Act was also framed against accused Vijay Kumar and Vishnu separately to which they both pleaded not guilty and claimed trial.
To prove its case, prosecution has examined PW1 to PW21 in all. Statements of accused persons were recorded. They have denied the case of the prosecution.
Accused Ram Ashish has explained that he has been falsely implicated in this case as he demanded his monthly salary from complainant, who flatly refused to pay the same and got him falsely implicated in this heinous crime in connivance with the police.
Accused Vijay has pleaded that he has been falsely implicated in this case by the police.
Accused Neeraj Gupta has come forward with the plea that he is innocent and has been falsely implicated in this case. He has no connection with Ram Ashish or other accused persons. He was working as general merchant, at the time of his arrest..
Accused Vishnu has pleaded that he has been falsely implicated in this case in connivance with the police.
Accused Niyamat Ali has stated that he is innocent and has been falsely implicated in this case.
Accused Mukesh has pleaded that he is innocent and has been falsely implicated in this case.
In defence, accused Vijay Kumar has examined DW1 Trilok Singh. Accused Vishnu has examined DW2 Jagdish. Accused Neeraj has examined DW3 Pramod Gupta. Accused Mohd. Niyamat Ali has examined DW4 Rehmat Ali and SC No.138/1 10 accused Mukesh has examined DW5 Roop Singh Mahla.
I have heard Ld. APP for the State, learned defence counsel for the accused persons and have gone through the material placed on record with evidence adduced.
Identity of the accused Persons :
Complainant Trish Pal Jain has been examined by the prosecution as PW3. He has stated that on 11/09/2002 at about 7.15/7.30 p.m., he was present in his house alongwith his wife. He was attending a call. The door bell rang and it ran repeatedly. His wife went and opened the door. One of the person present at the gate told her that "Bauji ne hame kaam ke liye bulaya hai". His wife asked them to sit outside. As soon as his wife turned back, she was pushed by the said persons and they caught hold her mouth. His wife raised noise and started weeping. He put the telephone down and came out of the room and saw 4/5 persons had entered his house and they bolted the outer door from inside. They also broke the telephone wires. One of them was having a pistol like object or may be a katta in his hand. Two others were having Churas. One of the Chura was kept on his temple and they were brought inside. The said persons asked him that he had sold a factory for rupees one Crore and where was the said money. The person holding pistol pointed the same towards him. He told them that he was government employee and never had any factory. One of them slapped him and told that he was telling a lie. On his repeated refusals, the said persons asked him to take off his chain and his wife to take off her chain and bangles. Thereafter, the said persons started uttering foul words and also threatened them. The said persons took keys of their safe from them and opened the safe. They took out cash of Rs. 55,000/-, jewellery articles, one camera, one wrist watch and some silver coins lying in the safe. The jewellery articles were consisting of one Matarmala, two necklaces of gold, two gold bangles and one gold chain, one diamond set, two diamond bangles and two diamond rings. These were about 50-55 tolas. The said persons also checked their bed, but could SC No.138/1 11 not find anything in the same.
PW3 has further stated that he had a Fiat Pali car bearing No. DL-8CG- 9187 belonging to his son. The said persons took the keys of the said car from him and thereafter took Sarees and tied him and his wife. The said persons left thereafter. The Saree tied over the mouth of his wife was little loose and therefore after some struggle, she was able to take it off from her mouth. His wife also opened the saree, which was tying him by her mouth. Thereafter, he got her released. Their feet had also been tied by the culprits.
PW3 has further deposed that thereafter he went to the house of his neighbour in ND11 and called police at 100 number. Police came after about 15 minutes. They informed the local police and he also informed some of his known persons. Police looked around in his house and also recorded his statement Ex. PW3/A. Dog squad was also called. People from T.V. Channel also came to his house. The police officials made investigation at the spot and left after leaving two Constables at their house.
PW3 has further deposed that he had also told to the police that his servant Ram Ashish, who was earlier employed with him , had earlier committed theft in his house and had also told to the police that the present incident was also the work of Ram Ashish, who left his house about 10-12 days before the incident.
PW3 has further deposed that on the next day i.e. 12/09/2002, he went to PS alongwith some other persons and handed over list of jewellery articles to the police. On the same day, he received a telephone call from police that his car was found abandoned in Sector -16, Rohini. He reached there alongwith the police. The car was subsequently brought to PS and was taken on superdari by his son.
PW3 has further deposed that on 20/09/2002, one police official Mr. Yadav came to his house. He told that police had received some information and asked him to join the investigation. PW3 was taken to Lawrence Road, where they did not meet anyone. Thereafter, they went to Bihari Chowk, JJ Colony near Samrat Cinema. He saw Ram Ashish sitting there at Sharma Dhabha/Hotel. He SC No.138/1 12 identified him as Ram Ashish had worked with him earlier. Accused Ram Ashish was apprehended by the police. PW3 has also identified accused Ram Ashish before the Court. Thereafter, accused Ram Ashish took the police party accompanied with complainant to his jhuggi, from where, he got recovered one Matar Mala. He identified the same. Cash of Rs. 3000/- was also recovered from accused Ram Ashish. Matar Mala was sealed in a cloth pullanda and was seized by the police. He signed the seizure memo Ex. PW3/B. PW3 has further deposed that on being scolded by the police, accused Ram Ashish told that he could get arrested two other boys, who were involved in the incident. Thereafter, accused Ram Ashish took all of them to Ambedkar Park and pointed out towards two persons, who were apprehended and they disclosed their names as Vijay and Neeraj. PW3 has also identified accused Vijay and Neeraj before the court.
PW3 has further deposed that in search of accused Vijay, Rs. 2000/- were recovered, which were taken into possession vide memo Ex. PW3/C. He also signed the same at point X. Rs. 3000/- were also recovered from the search of accused Neeraj, which were seized vide memo Ex. PW3/D. It was also signed by him at point X. Thereafter, they all went to the house of accused Vijay. Four Churies and one necklace were recovered from the house of accused Vijay. The same were wrapped in a cloth. One pistol type katta was also recovered from accused Vijay. Sketch of the pistol was also prepared, which was signed by him at point X. The same is Ex. PW3/E. PW3 has further deposed that thereafter, they went to the house of accused Neeraj. During the search of accused Neeraj, two bangles, one necklace and one camera make Canon were recovered. The jewellery articles were wrapped in a cloth and put alongwith the camera in the camera bag. Thereafter, they all returned to his house. Both the accused identified his house. Accused Ram Ashish was also with them. The jewellery articles were shown to his wife, who identified the same. Thereafter, they all returned to the police chowki/PS and jewellery articles were seized and converted into pullandas. Cash and camera recovered from the SC No.138/1 13 accused persons were also sealed in the PS. Thereafter, documents in that regard were also prepared by the police. He had signed those documents. These are Ex. PW3/F to Ex. PW3/S. PW3 has further deposed that when they had gone to the house of accused Vijay, some other articles were also seized by the police and brought with them. He had told to the police that those articles were not belonging to him. Seizure memo regarding those articles was prepared Ex. PW3/T. Thereafter, he came back to his house.
PW3 has further deposed that on 08/09.10.2002, he received a telephone call from the police in his office. He came back to his house and was taken to Shakurpur by Mr. Yadav with 2-3 Constables. Two police officials were also taken by them from the park. They came towards Netaji Subhash Palace. Two boys were found sitting on the Golchakkar. He told to the police that the said two boys were appearing to be the culprits of this case. Police apprehended them. One of them disclosed his name as Vishnu and another was Niyamat Ali. PW3 has identified both of them before the court. During personal search of accused Niyamat Ali, Rs. 2050/- were recovered and Rs. 2500/- were recovered during the search of accused Vishnu. Personal search memos are Ex. PW3/U1 and Ex. PW3/U2.
PW3 has further deposed that thereafter, they all went to the house of accused Vishnu. During the search of house of accused Vishnu, one small cloth purse was recovered containing one chain. He identified the chain before the police. The chain was put in the purse and wrapped in a cloth. During the search of house of accused Vishnu, one knife was also recovered. Total length of the knife was 9". Sketch of the same was prepared Ex. PW3/U3. It was taken into possession by tying in a cloth. Thereafter, they went to the house of accused Niyamat Ali and a purse was recovered from his house containing one chain. The same was also tied in a cloth by the police. Thereafter, they came back to his house . Both the accused pointed out the place of incident vide memos Ex. PW3/U4 and Ex.PW3/U5. Both the chain were shown to his wife, who identified the same.
PW3 has further deposed that thereafter, they went to the PS, where SC No.138/1 14 statement of accused Vishnu and Niyamat Ali were recorded Ex. PW3/U6 and Ex. PW3/U7. His statement was also recorded. Recovered chains and the knife were converted into pullandas and were sealed. These were taken into possession vide memos Ex.PW3/U8 , Ex. PW3/U9 and Ex. PW3/U10. Thereafter, he came back to his house.
PW3 has further deposed that he kept on calling the PS regarding apprehension of other culprits and after about 3-4 months, he had come to Tis Hazari Courts regarding release of articles on superdari. He saw a person with police outside Court room No. 36. SI Ramesh was also there. The said person was appearing to be one of the culprit of this case. He told this fact to SI Ramesh. He did not take any action and he left for his job. After about 3-4 days, he received a telephone call that the said person had been arrested and a chain was recovered from him. He was told that said person had surrendered before the court and chain was recovered from him. On 11/03/2003, PW3 identified this chain during judicial TIP before Ld. MM. Subsequently, the chain was released to him on superdari.
PW3 has also proved the superdari bonds executed by him Ex.PW3/V, Ex. PW3/V1 and Ex. PW3/V2. PW3 has also identified accused Mukesh present in the court and has identified the case property i.e. katta as Ex. P1, knife as Ex. P2, Camera as Ex. P3, Matar Mala as Ex. P4, two necklaces as Ex. P5 and Ex. P6, three gold chains as Ex. P7 to Ex. P9, four bangles as Ex. P10 collectively, one pair of bangles as Ex. P11 collectively and car as Ex. P12.
As PW3 has not supported the case of the prosecution on some aspects, hence he has been cross examined by learned Addl. PP, wherein he admitted that 70 tolas of gold alongwith three diamond sets had been looted from his house alongwith other articles.
PW3 has further admitted that katta recovered from accused Vijay was loaded and one cartridge was also taken out from it and was sealed alongwith the katta. Knife recovered from accused Vishnu was recovered from his wearing clothes during his search. PW3 has further admitted that some other documents SC No.138/1 15 had been prepared at the spot, where accused were arrested or articles were recovered and some were prepared subsequently in the PS. PW9 is Smt. Ram Murti. She is wife of PW3 Sh. T.P. Jain. She has deposed that she does not remember the exact date or month of the incident, which took place one year back. At about 7.30 p.m. on that day, she was present at her house. Her maid had left after doing her work. The door bell rang at about 7.45 p.m. Her husband was attending a phone call. She went out. As soon as, she opened the door, she saw one boy. She asked "kya kaam hai". He replied that he had been called for some work by Jain Sahib. She asked him to sit outside. While he called her husband, the said person immediately pushed her. Four other boys entered her house alongwith the said boy. Two of the said boys were having knives in their hands, while one had a revolver. They all asked them to keep quiet. They cut the telephone wire. They all asked her to take off her chain and bangles. They also asked her husband to take off his chain. One almirah was lying open and the said boys took out articles lying in the almirah. The said persons also told her husband that he had sold a factory and asked for the keys of the Tijori containing Rs. One Crore. Her husband told them that he had no factory and had not sold any factory and was in service. Her husband took out all the money lying in the house and gave the same to the said boys. The said boys slapped her husband and asked him to handover the keys of the Tijori. Thereafter, on their asking, she handed over the keys of other almirah and the said boys took out jewellery from the same. Thereafter, the boys left after tying them and after taking away their jewellery, camera and car. PW9 has further deposed that said boys had taken away two diamond sets, two diamond bangles, gold jewellery weighing 70 to 75 tolas, some silver coins and silver articles. She became perplexed at that time, but as far as she remembered, the boys, who had entered her house on the day of the incident, are the boys present in the court and PW9 has identified accused Vijay, Vishnu, Neeraj, Ram Ashish and Niyamat Ali.
As PW9 has also not supported the case of the prosecution on some SC No.138/1 16 aspects, so, she has also been cross examined by learned Addl. PP. During cross examination by Ld. Addl. PP, PW9 has admitted that incident had taken place on 11/09/2002 and the culprits had pointed out the knife towards them and had taken them to a room. PW9 has further admitted that Fiat Palio car was taken, but PW9 has not stated anything about the identity of accused Mukesh.
In the cross examination, conducted on behalf of accused Mukesh, PW3 T.P. Jain has been confronted with certain facts with his statement Ex.PW3/A by learned defence counsel and also about certain facts, which, he had not stated earlier, but has deposed before the court. So, he made improvements. Learned defence counsel has contended that in these circumstances, PW3 T.P. Jain cannot be relied upon in any manner.
PW3 has denied the suggestion that he was called by SI Ramesh in Tis Hazari Court on the day, when accused Mukesh had surrendered before the court. PW3 has denied the suggestion that accused Mukesh was in unmuffled face and was seen by him. PW3 has also denied the suggestion that he had seen accused Mukesh for the first time, when he surrendered before the court and for the second time in the PS, when he was shown to him and he identified him before the police. PW3 has further denied the suggestion that accused persons present in the court had not reached his house or that a false case was made by the police against them or that he had deposed falsely. PW3 has also denied the suggestion that he had identified the accused persons present in the court as they had been shown to him by the police in the PS and asked him to identify them in the court.
On the other hand, learned Addl. PP has contended that accused Mukesh had surrendered before the court and he was put to Judicial TIP, wherein he refused to join the TIP proceedings on the ground that complainant was present in the court of Sh. A.K. Kuhar, the then Ld. MM and he was shown to him. The TIP proceedings were conducted on 20/02/2003 and PW3 has denied the suggestion regarding the identity of accused Mukesh in all respect. PW3 has identified accused Mukesh before the Court. Accused Mukesh was arrested in this case on 20/02/2003 SC No.138/1 17 and the testimony of PW3 is unrebutted and unshaken regarding the identity of accused Mukesh as one of the accused, who had committed robbery in his house and also PW3 has denied the suggestion that accused Mukesh was shown to him in the court. So the contention of Ld. Defence Counsel are not tenable in any manner that he cannot be relied upon.
Learned defence counsel has contended that PW9 Smt. Ram Murti Devi has not identified accused Mukesh. Neither she has admitted or denied the suggestion of learned APP that accused Mukesh was also amongst the culprits. So, identity of accused Mukesh is doubtful. PW9 has also been cross examined on behalf of accused Mukesh, wherein she has stated that her husband did not go to Tis Hazari Court earlier in connection with this case. She can neither admit or deny that her husband had gone to Court of Sh. A.K. Kuhar, Ld. MM, on 20/02/2003 after lunch. PW9 has further stated that she cannot say if accused Mukesh had been brought by SI Ramesh Kumar from their house to the Court Learned defence counsel for accused Ram Ashish and Niyamat Ali has contended that PW3 T.P. Jain has admitted in the cross examination that accused Ram Ashish had not entered inside his house alongwith other culprits, when they entered his house on the day of the incident. PW3 has further admitted that he had not lodged any report in the PS regarding the earlier theft committed by accused Ram Ashish in his house.
On behalf of accused Neeraj, PW3 T.P. Jain has not been cross examined in any manner. So, identity of accused Neeraj has not been questioned in any manner. Even during the cross examination of complainant on behalf of accused Mukesh, the witness was not cross examined regarding the identity of accused Neeraj.
Similarly, learned defence counsel for accused Vijay did not cross examine complainant PW3 T.P. Jain in any manner. So, identity of accused Vijay is not disputed in any manner. In the cross examination conducted on behalf of accused Vishnu, PW3 T.P. Jain has stated that he had not seen one boy entering his SC No.138/1 18 house and four boys entering his house behind him. He had only seen them after they entered his house.
PW3 has further stated in the cross examination that his wife and he had never gone together to PS in connection with investigation of this case. His wife had never been to the PS in connection with this case. His wife had never told him that she could identify any of the culprits. His wife had told that she could identify the culprits, if required. PW3 T.P. Jain has further deposed in the cross examination that in his presence, police had never come to his house to call his wife to identify the accused persons. His wife had never identified accused Vishnu in his presence. PW3 has denied the suggestion that accused Vishnu was already in the PS, when shown to him. In the cross examination, PW9 Ram Murti has stated that she did not know any of the accused persons prior to the day of the incident and had not mentioned the physical description of the culprits to the police in her statement. She had never seen the accused persons after the date of the incident till today. She has denied the suggestion that accused Vijay was not involved in the incident. Learned counsel for accused Ram Ashish and Niyamat Ali had adopted the previous cross examination. Similarly, learned defence counsel for accused Neeraj had also adopted the previous cross examination of PW9 Ram Murti. On behalf of accused Vishnu, PW9 has not been cross examined in any manner.
In the complaint Ex. PW3/A, complainant T.P. Jain has stated that his wife Smt. Ram Murti opened the door. One boy came inside the house and told that he was called by him for some work and entered in the house and behind him, four other boys came, it was further stated that out of those five boys. One was having revolver like object. Two were having knives. Complainant has also given the age of these persons and complexion alongwith height and in the last, he had stated that he can identify those boys, if shown to him. From complaint Ex.PW3/A, it is clear that complainant could have identified five persons only, who had entered his house and had committed robbery. PW3 has identified all the six accused persons, out of which, for accused Ram Ashish, he has deposed that accused Ram Ashish had not SC No.138/1 19 entered his house alongwith other culprits. PW3 has nowhere stated that accused Ram Ashish was seen by him standing outside the house, whereas PW9 Ram Murti has identified accused Vijay, Vishnu, Neeraj, Ram Ashish and Niyamat Ali as the same boys, so far as she remembered, who had entered their house on the day of the incident. So, the identity of accused Ram Ashish as well as accused Mukesh is doubtful as PW3 T.P. Jain has not named accused Ram Ashish as one of the person, who had entered his house at the time of committing robbery with other culprits, whereas PW9 Ram Murti has not supported the case of the prosecution regarding the identity of accused Mukesh as the same boy, who was also amongst the culprits.
From the statement of PW3 T.P. Jain and PW9 Ram Murti, as both were present in the house, who are trustworthy and have deposed fairly before the court regarding the identity of the accused persons, prosecution has been able to prove the identity of accused Vijay, Vishnu, Neeraj and Niyamat Ali as the same persons, who had entered the house of PW3 and PW5 and had committed robbery.
Neither PW3 T.P. Jain nor PW9 Ram Murti has deposed before the court as to which of the accused persons had pointed out the knife or the revolver towards them at the time of committing robbery.
Accused Ram Ashish has stated in his statement recorded U/s. 313 CrPC that he has been falsely implicated in this case as he demanded his monthly salary from complainant, who refused to pay the same, in connivance with the police. So, on the part of accused Ram Ashish, it is also not denied that he was working as servant with complainant T.P. Jain. PW3 T.P. Jain has also deposed that Ram Ashish had left 10-12 days before the incident, whereas in the statement, it is recorded 20 days before the incident. So, hardly there is any difference and this minor contradiction is not affecting the testimony of PW3. More so, PW3 has fairly stated in the cross examination that Ram Ashish was not present amongst the culprits, who had entered his house and he did not enter his house. According to the complaint Ex.PW3/A, accused persons after committing robbery left in Fiat Palio Car of the complainant. So, when complainant had come out of his house, then SC No.138/1 20 certainly, no one was present. Hence, it cannot be said that PW3 had seen accused Ram Ashish standing outside the house at any time nor he has deposed the same in any manner.
According to complaint Ex.PW3/A, the accused persons removed Rs. 55,000/- and their jewellery containing three diamond sets, two diamond karas, 70 tolas jewellery, his and his wife's gold chain, four gold bangles of his wife, which she was wearing, alongwith one wrist watch, one camera make Canon and took them in a white colour home stitched bag having zip. Before the Court, PW3 has deposed that accused persons asked him to take off his chain and his wife to take off chain and bangles. PW3 has further deposed that accused persons took keys of their safe and took cash of Rs. 55,000/-, jewellery articles, one camera, one wrist watch and some silver coins lying in the safe. The jewellery articles were consisting of one Matarmala, two necklaces of gold, two gold bangles and one gold chain, one diamond set, two diamond bangles and two diamond rings. These were about 50- 55 tolas, but in the cross examination conducted by learned Addl. PP, PW3 has admitted that 70 tolas gold alongwith three diamond sets had been robbed.
In the cross examination, PW3 T.P. Jain has been cross examined on the aspect that at that time, he was having salary of Rs. 26,000/- per month and a departmental inquiry was going against him. PW3 has further deposed that three diamond sets were worth about Rs. 70,000/- and two diamond bangles were worth about Rs. 30,000/-. PW3 has further deposed that neither three diamond sets nor two diamond bangles were recovered. 70 tolas gold was worth about Rs. 2.25,000/-.
Learned defence counsel has contended that PW3 T.P. Jain has not produced any documentary proof regarding ownership of robbed articles, so it cannot be said that such articles were robbed from his house.
In my opinion, PW3 has denied the suggestion that the stolen articles or the recovered articles do not belong to him, so he has no proof of ownership of the same. So, the contention of Ld. Defence Counsel is not material. Even no one could expect to retained the bills of such articles procured for the years. PW3 has been SC No.138/1 21 confronted with certain facts with his complaint Ex. PW3/A, after the incident of robbery, on the point of pistol and knives. It cannot be expected from a person to tell the police at his own each and every detail of the incident. Whatever, with a troubled mind, complainant was remembering at that time, he reported to the police and later on, he must have remembered certain other facts, which were not told to the police by him in complaint Ex.PW3/A. So, it cannot be termed as improvement in any manner. The testimony of PW3 is inspiring confidence regarding the robbery committed by the accused persons on the point of knives and pistol. At the time of such heinous crime, a layman, who had not seen any such incident face to face in his life, cannot be expected to narrate each and every small detail of the incident to the police, at first instance. He may remember the details later on after settling down from the grief of the incident.
The contradicted portions, as pointed out by learned defence counsel, are not of such nature to disbelieve the testimony of PW3 T.P. Jain in any manner to the extent that accused persons had not committed any robbery in his house. PW3 has also denied the suggestion that having salary of Rs. 26,000/- per month, he could not have cash of Rs. 55,000/- in his house. PW3 has stated that he was having other sources of income also. He has agricultural income as well as rental income. More so, in criminal cases, such questions have no relevancy unless accused persons are claiming the ownership of the same. Rs. 55,000/- was not a huge amount in the year 2002, which could not have been available in the house of a Joint Commissioner of Income Tax Department, which PW3 was at that time. PW3 complainant has further clarified in the cross examination that he had not handed over any written list of jewellery articles looted from his house and had verbally given the details.
PW9 Ram Murti has further corroborated with PW3 T.P. Jain and has stated that one almirah was lying open and accused persons took out articles lying in the almirah. Her husband took out all the money from the safe and gave the same to the accused persons and further she handed over the keys of the other almirah to the SC No.138/1 22 accused persons and they took out jewellery, camera and also took their car and left. The accused persons had also taken away gold jewellery weighing 70 to 75 tolas, some silver coins and silver articles.
PW9 has also been confronted with his statement Mark P9/A, wherein some facts are not recorded, but have been deposed by PW9 before the court. Again in my view, the same are not material in any manner as in the commission of such crime, at the time of recording of statement, no one can expect that the person will tell each and every small detail in his or her statement. Later on, the person may recollect the other details after settling down. So, it is not unnatural that in such circumstances, other details are appearing in the supplementary statements of the witnesses recorded by the police.
Learned defence counsel has contended that PW9 has been confronted with the fact that on the asking of the accused persons, she took off her chain and bangles and her husband also took off his chain, which is not appearing in statement Mark P9/A. It is not so as the same is appearing in Ex. PW3/A and PW3 T.P. Jain has deposed the same facts before the court. Hence, if the same is not appearing in the statement Mark P9/A of PW9, then the same is not material in any manner. The confrontations, as pointed out to PW3 or PW9 are not leading to the conclusion that accused persons had not committed the robbery on the point of revolver and knives.
PW9 has further explained in the cross examination that diamond bangles were belonging to her and same were received by her from her parental family about 10-12 years back. So, the minor confrontations, which can be termed as improvements or left over, are not material in any manner and are not leading to the conclusion that PW3 and PW9 cannot be believed and are not inspiring confidence. The contention of learned defence counsel regarding the conduct of PW3 and PW9 and the improvements made by them before the court in their statements is not tenable in any manner as both have corroborated each other correctly and also with Ex. PW3/A. So, prosecution has been able to prove beyond SC No.138/1 23 reasonable doubts that accused persons Vijay, Vishnu, Niyamat Ali and Neeraj had committed robbery in the house of PW3 complainant T.P. Jain on 11/09/2002 , as deposed by PW3 and PW9, on the point of revolver and knives.
As prosecution has been able to prove identity of accused persons i.e. Vijay, Vishnu, Niyamat Ali and Neeraj as the same persons, who had committed robbery in the house of complainant T.P. Jain on 11/09/02 but neither PW3 nor PW9 has been able to deposed as to which of the accused had pointed out the revolver and who had pointed out the knife towards them while committing robbery, so prosecution has been able to prove offence u/s 392/34 of IPC only against accused persons Vijay, Vishnu, Niyamat Ali and Neeraj for which they are held guilty and convicted for the same.
Prosecution has not been able to prove the identity of accused Ram Ashish as one of the co-accused involved in committing robbery on 11/09/02 in the house of complainant T.P. Jain, hence accused Ram Ashish is acquitted u/s 395/34 of IPC.
Accused Vishnu, Vijay, Niyamat Ali and Neeraj are also acquitted u/s 395/34 of IPC. PW3 T.P. Jain and PW9 Ram Murti have not corroborated regarding the identity of accused Mukesh, hence his identity is doubtful, so benefit of doubt is given to accused Mukesh, so he is acquitted for the offence u/s 395/34 of IPC. PW3 and PW9 had also not been able to deposed as to which of the accused had pointed out the revolver and who pointed out knife on them, while committing robbery. Accordingly, accused Mukesh,Vijay and Vishnu are also acquitted for the offence u/s 397/34 of IPC Registration of the Case.
On 11/09/2004, PW20 SI Ramesh Kumar was posted at PS Jahangir Puri. On that day, on receipt of DD no.26A, Ex. PW20/A, he alongwith PW5 SC No.138/1 24 Constable Braham Parkash reached at the spot i.e. ND-10 Pitampura, Delhi and met there with complainant. He recorded his statement Ex.PW3/A and prepared rukka on the same Ex.PW20/B and handed over the same to PW5 Constable Brahm Prakash for registration of the FIR. He also made request to call crime team, dog squad, photographer and Senior officers in the rukka. Crime team members reached at the spot and they inspected the scene of crime.
PW5 Constable Braham Parkash also deposed the same facts as of PW20 Ramesh Kumar and has further deposed that after registration of the FIR, he brought the rukka to the spot and handed over the same to SI Ramesh. Crime team also came to the spot and took photographs of the spot. Dog squad had also come there. His statement was recorded by the Investigating Officer.
In the cross examination, PW5 has deposed that he had left the spot with the rukka at about 9.30 pm and returned back to the spot at about 10-15 pm. PW1 HC Jeet Singh has further corroborated with these witnesses and has deposed that on 11/09/02, he was posted as duty officer at PS Saraswati Vihar and at about 9.50 pm, a rukka was produced before him by PW5 Constable Braham Parkash sent by SI Ramesh Kumar. On the basis of said rukka, he registered the FIR of this case, copy of which is Ex.PW1/A. He also made endorsement on the rukka at point encircled red PW1/B and handed over the copy to PW5 to further handover to the Investigating Officer.
In the cross examination, PW1 has stated that PW5 Constable Braham Parkash had left the DO room with copy of FIR at about 10.15-10.20 pm. So both PW1 HC Jeet Singh and PW5 Constable Braham Parkash have corroborated with PW20 regarding the registration of the FIR, on rukka Ex.PW20/B, which was prepared on the statement of complainant Ex.PW3/A. PW20 SI Ramesh Kumar has further deposed that crime team reached at the spot and they inspected the scene of crime. PW5 Constable Braham Parkash also deposed that he reached at the spot and handed over the rukka and copy of FIR to PW20. Crime team members handed over their report vide Ex.PW11/A and SC No.138/1 25 Ex.PW15/A. PW20 has further deposed that he also prepared rough site plan at the instance of the complainant vide Ex.PW20/C and recorded the supplementary statement of T.P Jain complainant and his wife. He tried to search the accused persons, but they were not traceable at that time.
PW20 has further deposed that on 12/09/2002, investigation of this case was handed over to Inspector O.P. Yadav. He deposited the case file with the MHC(R).
PW15 Rajesh Kumar has further corroborated with PW20 and have deposed that on 11/09/02, he was posted in the crime team, NW district and on that day, he reached at Block ND, Pitam Pura and inspected the spot. They lifted three chance prints and prepared report Ex.PW15/A in this respect and submitted the same to the Investigating Officer. Nothing came out from his cross examination to disbelieve his testimony, in any manner.
PW2 Constable Sushil has also corroborated with the above witnesses and has deposed that on 11/09/02, he was posted as photographer with the mobile Crime team, at PS Ashok Vihar. On receipt of information, he had gone to ND-10 Pitampura and took seven photographs of the spot as per directions of the Investigating Officer. He has also produced the negatives in the court. Positives had been handed over to the Investigating Officer earlier. His statement was recorded by the Investigating Officer. He has identified the positives as Ed.P.2A to G, which are on judicial record and also identified the negatives as Ex.P.2- H collectively.
PW2 has denied the suggestion in the cross examination that he had not done any diploma in photography. He has also denied that he has no experience of photography and hence can not produce the same in the court. He has also denied that photograph exhibited are not the photograph of the spot. So nothing came out from his examination to disbelieve him in any manner.
Recovery of the Car.
SC No.138/1 26PW4 SI Shamu Murmu has deposed that on 12/09/02, he was posted in PP Sector-16, Rohini. During the course of patrolling duty, he found a Fiat Palio car no. DL8CG-9187 lying parked at service road between B-2-B.3, Sector-16, Rohini. He already knew that said car was wanted in connection with a case of PS Saraswati Vihar. So he gave information to PS Saraswati Vihar and the crime team. After some time, crime team came at the spot. Additional SHO, alongwith staff also came there. The car was got photographed by the crime team. Finger prints were also lifted. On search of the car, one knife and a chunni like cloth were found on the back seat of the car. The crime team had also found key of the car in the ignition. The key was taken out by the crime team and was put in a packet of cigarette. It was sealed with the seal of OPY. The knife was also converted into pullanda and was sealed with the seal of OPY. PW4 has further deposed that he does not remember whether he signed the Seizure memo Ex.PW4/A and Ex. PW4/B, but later on he identified his signature at point B. His statement was recorded by the Investigating Officer.
PW4 has been cross examined by Ld APP, wherein PW4 admitted that he had been informed by the public persons that a car was lying parked at B-2/B-3, Sector, 16, Rohini. PW4 has further admitted that knife and the chunni type cloth were put in the same pullanda and same were seized.
In the cross examination, PW4 has stated that he does not remember that he had mentioned in his statement to the Investigating Officer that he knew that the car was recorded at the spot. His statement was recorded. He cannot say, if the document Ex.PW4/B is carbon copy of the same and not the original. He has further stated that seizure memo Ex.PW4/A and B had been written by Inspector O.P. Yadav. He has also admitted that both these memos are in different handwriting. He has further admitted that photocopies mark P.4-DA and DB do not bear his signatures.
Ld. Defence Counsel has contended that PW4 cannot be believed in any manner as case property i.e. knife and chunni were not produced before the court SC No.138/1 27 and were not shown to him.
In my opinion, PW4 had already deposed in the examination in chief that he cannot say if he would be able to identify the chunni or not, but he would be able to identify the knife and the key, as the knife and key were recovered from abandoned fiat Palio car, hence there was not need to show these articles for identification. Otherwise also the key was to be identified by the owner of the car, hence if the articles were not produced for identification to PW4 in his examination, then it does not mean that he has deposed falsely and cannot be believed in any manner.
PW4 has admitted that he had not mentioned the Engine Number of chesis number of the car in his statement to the Investigating Officer. PW4 has further denied the suggestion that he was not on patrolling duty on that day or that the recovery of car was not affected in his presence. He had also denied that he had no previous knowledge about the involvement of the car in a case of PS Saraswati Vihar.
Hence from the cross examination, in my view, nothing has come on record to disbelieve the testimony regarding the recovery of car, which was lying in abandoned with its key in ignition and also that knife and chunni lying in the car.
PW19 Inspector Om Parkash Yadav has deposed that on 12/09/09, he was posted as Additional SHO PS Saraswati Vihar and investigation of this case was received by him from SI Ramesh Kumar, as per directions of the Senior Officers. On that day, an information was received in the PS that the car of Sh. T.P. Jain bearing no. DL-8CG- 9187 was standing in Sector-16, Rohini in abandoned condition. He alongwith SI Ramesh and complainant T.P. Jain, HC Brij Pal, HC Brij Pal and other police staff reached there and found the car standing there. PW-19 has further deposed that crime team was called, who inspected the above car and took its photographs. The car was found open having the key in it. The said key was placed in a cigarette case and was converted into a pullanda, which was sealed with the seal of OPY and was seized vide memo SC No.138/1 28 Ex.PW4/A. During investigation, the car was inspected, one knife and a piece of cloth were recovered from the back seat of the car. Sketch Ex.PW19/A was prepared. The knife was converted into a pullanda. The knife and piece of cloth were seized vide memo Ex.PW4/B. During these proceedings, SI Shyamu Murmoo, i.e. PP, Sector-16, Rohini also came there. Car was seized vide memo Ex.PW19/B and was released on the same day.
In the cross examination, PW19 has stated that he received information through wireless. PW-19 has further stated in the cross examination that the place where the car was found parked abandoned was having public thoroughfare. He did not make efforts to join any public person in the investigation at the time of seizing car no. DL-8CG-9887. PW19 has further deposed in the cross examination that on his dictation HC Brij Pal had written seizure memo Ex.PW4/A and sketch of knife Ex.PW19/A was prepared by SI Ramesh, so from the cross of PW-19, it is clear as to why documents were in different handwritings.
Ld. Defence Counsel has contended that the signatures of PW4 SI Shamu Murmur are not appearing on Ex.PW4/A and sketch of knife Ex.PW19/A is also not bearing seizure of any witness, which shows that all the proceedings were conducted while sitting in the PS and none of the police official had joined the investigation. So PW19, cannot be believed regarding the recovery of car no.DL- 8CG-9887, which allegedly was found parked abandoned.
PW20 SI Ramesh Kumar has also deposed the same facts regarding the recovery of car found abandoned. In the cross examination of PW20 nothing came out to disbelieve his testimony in any manner. He has deposed that he had returned the seal to the Investigating Officer, on the same day. He has further deposed that he deposited the case property in the malkhana, which shows that there was no possibility of tampering of the case property.
PW3 Shri T.P. Jain has also deposed that on 12/09/02, he received information from police that car was found abandoned at sector-16, Rohini. He reached there alongwith the police and his car was recovered. The car was SC No.138/1 29 subsequently brought to PS and taken on superdari by his son.
PW3 has also admitted the seizure memo of the car does not bear his signature or of his son. Ld. Defence Counsel has contended that it shows that car was not recovered in presence of PW3 complainant T.P. Jain and because of this reason, his signatures are not appearing on the same.
PW5 Constable Braham Prakash has also the deposed the same facts regarding the recovery of car and other articles from the car, as deposed by other witnesses.
To further corroborate PW7 Constable Balram has been examined. He has deposed that on 12/09/02, he was posted as photographer with Crime Team North West. On that day, on receipt of call he went to Sector-16, Rohini Divider of B-2/B-3 and a Fiat Palio car no. DL-8CG-9187 was lying parked there. He took the photographs. One knife and a piece of cloth were lying on the back seat of the car. He has brought the negatives of the photographs and has proved the same as Ex.P.7-A,B and C, but positives of the same are not in the case file.
Ld. Defence Counsel has contended that PW7 has also been confronted with his statement that a knife and piece of cloth have been recovered from the rear seat of the car, which is not appearing in his statement mark P.7-A, so the recovery of car as deposed by the witness and other proceedings in this respect are fabricated.
PW11 inspector Rajesh Dahiya has deposed that on 12/09/02, he was posted as Sub Inspector with the crime team North west District with Delhi police. On that day, on receipt of a call, he reached sector-16, Rohini alongwith his crime team. A Fiat Palio was found lying parked on the dividing road of block B2 and B3, Sector-16, Rohini. The car was examined, but no chance prints were found. Key of the car, one knife and a piece of chunni were found inside the car. The same were handed over to local police, who sealed the same in a pullanda and seized the same. PW11 prepared his crime team report Ex.PW11/A and handed over the same to Inspector O.P. Yadav. In the cross examination, conducted by Ld APP, PW11 SC No.138/1 30 has stated that he cannot say if the complete number of the car was DL8CG-9187, but the same was mentioned in his report Ex.PW11/A. He further admitted that articles handed over to Sh.OP Yadav were converted into cloth pullanda and were sealed with the seal of OPY.
Ld. Defence Counsel has further contended that PW11 has also been confronted with the fact that as to whether he had stated to the Investigating Officer that Fiat Palio car was lying parked at the spot, which is not appearing in his statement mark P11A.
Seizure memo of the key of car is Ex.PW4/A. It is signed by SI Ramesh and SI Shamu Murmu as a witness. Seizure memo of the knife and cloth Ex.PW4/B, is also signed by SI Ramesh and PW4 as a witness. Crime team also inspected the car and the photographs of the car were also taken. So it cannot be said that car was not found abandoned. The car was seized vide memo Ex.PW19/B, which bears signature of SI Ramesh as a witness and the car was recovered abandoned, hence it has not served any purpose to the police, so there was no need for the witness to depose falsely in this respect nor there was any need to plant the car against the accused persons in any manner because the same was recovered abandoned. So the only fact, which prosecution has been able to prove from the deposition of this witness is that the car was found abandoned and was recovered with its key on 12/09/02 in sector 16 on the dividing road of B-2/B-3 in Rohini. Knife and the chunni type cloth have also not been connected in any manner with the accused persons, so the witnesses were not having any reason to depose falsely in this respect. Accordingly, the contention of Ld. Defence Counsel are not tenable in any manner, as case was registered in the year 2002, whereas witnesses have been examined later on, so certain shortcomings are bound to appear in the depositions of witnesses due to lapse of time.
Arrest of accused Ram Ashish and recovery of articles and cash PW-19 Inspector Om Parkash Yadav has further deposed that on SC No.138/1 31 13/09/02, he recorded supplementary statement of Sh. T.P. Jain, wherein he gave the details of the articles robbed from his house. Sh. T.P. Jain suspected the involvement of the Ram Ashish as he was working with him as servant and had left the job 20 days prior to the date of incident.
PW-19 has further deposed that on 20/09/02, he alongwith SI Ramesh, complainant T.P. Jain and other police staff was searching for Ram Ashish and at the instance of the complainant T.P. Jain, accused Ram Ashish was apprehended from Bihari Chowk, JJ Colony, Shakurpur. He was interrogated and his disclosure statement Ex.PW3/B was recorded. From his right pant pocket, one matar mala and Rs.3,000/- were recovered. On weighing, the said matar mala came, it out to be 25.40 gram. It was sealed in a pullanda with the seal of OPY and seized the same vide memo Ex. PW3/B. PW-19 has further deposed that accused Ram Ashish was arrested vide memo Ex. PW-3/R and his personal search was conducted vide memo Ex.PW3/V3, wherein the recovery of Rs.3000/- has been shown. Accused Ram Ashish pointed out the place of occurrence vide memo Ex.PW3/K and led the police party to a park near Samrat Cinema,where accused Vijay Kumar and Neeraj Gupta were apprehended on the pointing of accused Ram Ashish and also on identification of complainant T.P. Jain. Accused Vijay Kumar was arrested vide memo Ex.PW3/Q. His personal search was taken vide memo Ex.PW3/C , wherein Rs.2000/- were recovered. Disclosure statement of accused Vijay Kumar was also recorded vide memo Ex.PW3/O. Accused Vijay led the police party to his house at A-368, JJ Colony, Shakurpur and got recovered a counry made pistol from underneath the bed. Sketch of the same was prepared vide memo Ex.PW3/E and it was sealed with the seal of OPY and was seized vide memo Ex.PW3/H. Accused Vijay Kumar also got recovered one gold necklace and four gold bangles from inside a purse, which was taken out from the briefcase. On weighing, the necklace was found 33.260 grams and four bangles were found 41.960 grams. The necklace and four bangles were sealed in a pullanda with the seal of OPY and were seized vide memo Ex. PW3/G. Seal after use was handed over to HC Brij Pal. Accused SC No.138/1 32 Vijay Kumar also pointed out the place of occurrence vide pointing out memo Ex.PW3/M. PW-19 has further deposed that accused Neeraj Gupta was arrested vide memo Ex.PW3/S and his personal search was conducted vide memo Ex.PW3/D, wherein Rs.3000/- were recovered. He recorded the disclosure statement of accused Neeraj Gupta Ex.PW3/P. Accused Neeraj Gupta led the police party to his house at H-322, JJ Colony, Shakurpur and produced one Camera make Canon from a tand inside a room. The said camera was seized vide memo Ex.PW3/J. Accused Neeraj further produced two gold karas (bangles) and a gold necklace from a bag lying on a tand. On weighing, the karas were found of 36.700 grams and the necklace was of 54.60 grams. Both the karas and necklace were sealed in a pullanda with the seal of OPY and were seized vide memo Ex.PW3/F. Seal after use was handed over to HC Brij Pal. Accused Neeraj Kumar also pointed out the place of occurrence vide memo Ex.PW3/L. PW-19 recorded the statement of PWs. The case property was deposited in the malkhana. All the three accused persons were taken on one day PC remand and police tried to search the remaining accused persons.
PW3 Sh. T.P. Jain has also deposed the same facts regarding the arrest of accused Ram Ashish, Vijay Kumar and Neeraj Kumar and recovery of gold articles from the possession of accused persons.
Ld. Defence Counsel had contended that recovery is planted upon the accused persons as PW3 T.P. Jain has stated that articles, which were recovered were put in a cloth, which were seized by the police, but simultaneously he has deposed that the jewellery articles were shown to his wife. They returned to PS and after reaching PS, the jewellery articles were converted into parcel and were sealed by the police and thereafter documents in this respect were prepared by the police. He had admitted that the documents, which were prepared at PS, are Ex.PW3/F to Ex.PW3/S. Ld. Defence Counsel has further contended that according to PW3 when they had gone to accused house of accused Vijay, some speakers and other articles SC No.138/1 33 were also seized by the police and brought with them. He had told the police that the said articles did not belong to him. However, he has identified his signature at point X on seizure memo Ex.PW3/T, whereas PW-19 inspector O.P. Yadav has not deposed in this respect, so they have contradicted each other, which shows that witnesses cannot be relied upon in any manner.
Ld. Defence Counsel has further contended that according to the cross examination of PW3 Sh. T.P. Jain, list of articles recovered in his presence, had been prepared by the Investigating Officer. He does not remember whether or not a copy of list was handed over to Ram Ashish. He had signed the list of articles, but has further admitted that there is no such list of articles, which shows that the proceedings had been fabricated against the accused persons.
Ld. Defence Counsel has further contended that according to the cross of PW-19, Inspector O.P. Yadav, on 20/09/02, at about 12.00 pm, accused Ashish was arrested whereas PW3 T.P. Jain has stated that it might be 12.30 or 1.30 pm, when they had reached Bihari Chowk at about 1-30/2.00 pm. So there is difference of time of two hours regarding the arrest of Ram Ashish as to whether he was arrested at about 12.00 pm or at about 2.00 pm. Hence both PW3 and PW- 19 cannot be relied upon regarding the arrest of accused Ram Ashish.
Ld. Defence Counsel has further contended that PW-19 has stated in the cross examination that he took the signatures of SI Ramesh, HC Brij Pal and Complainant Sh. T.P. Jain, on the personal search of accused Ram Ashish whereas it does not bears the signature of HC Brijpal, hence witnesses cannot be relied upon.
PW8 HC BrijPal has also joined the investigation regarding the arrest of accused Ram Ashish. He had deposed that on 20/09/02, he left the PS alongiwth PW19 Inspector O.P. Yadav, PW20 SI Ramesh and Constable Satbir. First of all they reached at the house of Complainant T.P. Jain and thereafter, they reached at the Bihari Chowk, JJ Colony Shakur Pur. They overpowered one Ram Ashish near Sharma Hotel on being pointed out by secret informer. Complainant T.P. Jain identified hat he was the same person, who was working as his servant. On the SC No.138/1 34 search of accused Ram Ashish, one red colour Tibbi was recovered from the right side pocket of pant. On opening the same, it was found containing golden mutter mala. PW8 has also identified accused Ram Ashish before the court. He has further deposed that Rs.3000/- cash was also recovered from the right side pocket of Ram Ashish.
In the cross examination, PW8 HC Brij Pal has stated that they had left PS Saraswati Vihar at about 3.00 pm and reached at the house of complainant at about 3.15 pm. PW8 has denied the suggestion that accused Ram Ashish was not apprehended from the Sharma Hotel. He has further stated in the cross examination, that no separate list of recovered or seized articles was prepared by Inspector O.P. Yadav and that Matar Mala was of 92 gms.
Ld. Defence Counsel has contended that PW8 HC Brij Pal has admitted that FIR number or any particular of this case are not mentioned anywhere on the dibbi or that alleged mattar mala was recovered from the possession of accused Ram Ashish.
To my mind, contention of Ld. Defence Counsel is not tenable in any manner because the red colour dibbi was identified by witness as Ex.P15 and PW8 HC Brij Pal has denied the suggestion that Matar Mala could not have been put in this dibbi. Merely that such types of dibbi are easily available in the market, it cannot be said that matarmala was planted upon the accused. PW8 has also denied the suggestion that cash of Rs.3000/- was not recovered from accused Ram Ashish.
Another witness to the arrest of accused Ram Ashish is PW-13 Constable Satbir Singh. He has also deposed the same facts as of other witnesses. He has stated that on 20/09/02, he was posted at PS Saraswati Vihar and had gone d alongwith complainant and other police officials, to Lawrence road in connection with investigation of this case and while coming back, when they were passing by from Bihari Chowk, Shakurpur, JJ Colony, one person was found sitting and was pointed out by Sh. T.P. Jain, being the culprit. Complainant T.P. Jain told that the said person was earlier employed with him as a servant in his house. He was SC No.138/1 35 apprehended. On his casual search, one red dibbi was recovered from the right side pocket of his pant. The said dibbi was containing matar mala. He disclosed his name as Ram Ashish. Disclosure statement of Ram Ashish was recorded.
Ld. Defence Counsel has contended that PW13 Constable Satbir Singh has admitted in the cross examination that matar mala was not recovered from the possession of accused Ram Ashish in his presence, which shows that he is not the witness to the recovery and the same was fabricated against the accused.
The contention of the Ld defence counsel is forceful because PW13 was also with the police party and according to other witnesses, matarmala was recovered from the accused at the time of his arrest or from his jhuggi, so recovery of matarmala is doubtful.
Ld. Defence Counsel has contended that PW-19 has further stated in his cross examination that he took the signatures of HC Brij Pal on the personal search of accused Ram Ashish whereas the personal search of accused Ram Ashish is not bearing the signatures of HC Brij Pal, so the witnesses cannot be believed.
Ld. Defence Counsel has contended that in the cross examination PW-10 SI Ramesh Kumar has stated that complainant himself came in the PS on 20/09/02, after that they had proceeded towards their house whereas other witnesses have not stated so. Rather they have deposed that police party reached at the house of complainant, so witnesses cannot be relied upon. In my view, as it was suggested to PW-19, that accused Ram Ashish was already arrested and on 20/09/02, complainant was called in the PS and his signatures were obtained on the some blank papers which were fabricated against the accused and it is also suggested in the cross examination to PW20 SI Ramesh Kumar that accused Ram Ashish himself surrendered at PS Mangol Puri because his relatives were kept in PS Mangol Puri and subjected to beatings, are itself contrary to the facts suggested to the witnesses. Accused Ram Ashish has not explained in any manner as to whether he was lifted from his house by the police or he surrendered himself in PS Mangol Puri. Case is of PS Saraswati Vihar, hence there was no question of SC No.138/1 36 surrendering of accused Ram Ashish in PS Mangol Puri. Accused Ram Ashish has simply explained that he has been falsely implicated in this case as he had demanded his monthly salary from complainant and he flatly refused to pay the same and got him falsely implicated in this heinous crime in connivance with the police. So the defence regarding the arrest of accused Ram Ashish as suggested to the witnesses is not in consonance in any manner. Accused Ram Ashish has not examined any defence witnesses in this respect that he surrendered in PS Mangol Puri as his relatives were kept there and were subjected to beatings or that he was already arrested on 20/09/02 and complainant was called in the PS, wherein some documents were fabricated against him.
In such circumstances, the witnesses examined by the prosecution regarding the arrest of accused Ram Ashish on the pointing out of complainant PW3 T.P. Jain cannot be doubted in any manner. The witnesses have corroborated each other regarding the place of arrest, date and time of arrest of accused Ram Ashish on the pointing out of PW3 complainant T.P. Jain. The witnesses are inspiring confidence and the contradictions as pointed out by Ld. Defence Counsel are minor in nature and are not affecting the trustworthiness of witness examined in this respect. So the prosecution has been able to prove beyond reasonable doubts that on 20/09/02, the police party including PW-19 inspector O.P. Yadav and complainant, during the investigation of this case, arrested accused Ram Ashish from Bihari Chowk, Shakurpur, JJ Colony, on the pointing of complainant T.P. Jain.
PW3 has deposed that accused Ram Ashish took all of them to his jugghi from where Matar mala was recovered. Cash of Rs.3000/- also recovered from accused Ram Ashish. The matar mala was put in a cloth which was tied and seized by the police.
PW3 complainant has further deposed after conducting proceedings, they all came back to his house alongwith accused Ram Ashish and jewellery articles were shown to his wife, who had identified the same. Thereafter, they all SC No.138/1 37 returned to PS and those articles were sealed while converting into pullanda, which shows that the case property might have been tampered with, hence it cannot be said as to whether matarmala, which has been produced before the court, is the same which was recovered from the possession of accused Ram Ashish as deposed by the witnesses or it was tampered with, in the house of PW3 T.P. Jain or it was planted upon the accused, in the house of complainant T.P. Jain, or it was recovered at all from the accused Ram Ashish.
Even otherwise, PW8 HC Brij Pal has deposed that matarmala was recovered in the personal search of accused Ram Ashish at the time of his arrest. Similarly, PW13 Constable Satbir Singh has deposed that one red dibbi was found from the right side pocket of pant of accused Ram Ashish, which was found containing Matar mala.
PW-19 Inspector O.P. Yadav has also deposed that from the right side pant pocket of accused Ram Ashish one Matar Mala was recovered alongwith Rs.3,000/- and the same has been sealed in the pullanda with the seal of OPY. PW20 SI Ramesh Kumar has also deposed that one box was recovered from the possession of accused Ram Ashish, which was found containing golden matar mala. It was sealed in the pullanda with the seal of OPY and was seized.
In view of the above, the contradictions are material, which creates doubts in the deposition of witnesses as to whether matar mala and Rs.3000/- in cash were recovered from the possession of accused Ram Ashish on the spot, from where he was arrested or from his jugghi, as deposed by PW3 Complainant Sh. T.P. Jain, or if the same was recovered from accused at all. So, witnesses examined by prosecution, in this respect, are not inspiring confidence and they cannot be relied upon. So, prosecution has not been able to prove beyond reasonable doubts, recovery of Matar mala and cash of Rs.3000/-, from the possession of accused Ram Ashish at the time of his arrest. Accordingly accused Ram Ashish is acquitted for offence u/s 412 of IPC.
SC No.138/1 38Arrest of accused Vijay Kumar and Neeraj Gupta and recovery from their possession.
According to the deposition of PW-19 Inspector O.P. Yadav, after his arrest, accused Ram Ashish, led the police party to a park near samarat cinema and on his pointing out and identification of complainant T.P. Jain, accused Vijay Kumar and accused Neeraj Gupta, were apprehended. Accused Vijay Kumar was arrested vide memo Ex. PW3/Q. His personal search was taken vide memo Ex.PW3/C , wherein Rs.2000/- were recovered. He made disclosure statement vide memo Ex.PW3/O and led the police party to his house at A-368, JJ Colony, Shakurpur and got recovered a country made pistol from underneath the bed. Proceedings were conducted in respect of country made pistol, which was found containing live cartridges. Accused Vijay Kumar also got recovered one gold necklace and four gold bangles, which were sealed in a pullanda with the seal of OPY and were seized vide memo Ex. PW3/G. PW-19 Inspector O.P. Yadav has further deposed that accused Neeraj was also arrested vide memo Ex.PW3/S and his personal search was conducted vide memo Ex.PW3/D. His disclosure statement also recorded vide Ex.PW3/P. Accused Neeraj Gupta led the police party to his house at H-322, JJ Colony, Shakurpur and produced one Camera make Canon, which was seized vide memo Ex.PW3/J. Accused Neeraj further produced two gold karas (bangles) and a gold necklace, which were sealed in a pullanda with the seal of OPY and it was seized vide memo Ex.PW3/F. Seal after use was handed over to HC Brij Pal.
PW3 has also deposed the same facts regarding the arrest of accused Vijay and Neeraj and has deposed that after conducting proceedings regarding the recoveries, made from accused Vijay and Neeraj, they had returned to his house and both the accused had identified his house. Accused Ram Ashsih was also with them, at that time. The jewellery articles were shown to his wife, who identified the same. Thereafter, they reached at the PS and the jewellery articles were SC No.138/1 39 converted into pullanda and were sealed and seized by the police and thereafter documents Ex.PW3/F to Ex/PW3/S, in this regard were prepared by police and were signed by him.
PW8 HC Brij Pal has also deposed the same facts regarding the arrest of accused Vijay Kumar and Neeraj and recoveries effected from them, during police custody and has deposed that he had signed the seizure memo Ex. PW3/F, Ex.PW3/F.G.T.B and .J. In the cross examination, PW8 has deposed that katta was recovered from the house of Vijay and no separate list of articles recovered and seized from the house of accused Vijay was prepared by the Investigating Officer. They had left the house of Vijay Kumar at about 6.30 pm and reached at the house of accused Neeraj at about 7.00 pm. PW-13 Constable Satbir Singh has deposed nothing about the arrest and recoveries from accused Vijay Kumar and Neeraj. PW20 SI Ramesh Kumar has deposed the same facts as of PW-8 HC Brij Pal regarding arrest and recovery made from accused Vijay and Neeraj. Ex.PW3/F is seizure memo regarding necklace and bangles, recovered from accused Neeraj Gupta. Ex.PW3/G is seizure memo necklace and bangles recovered from accused Vijay Kumar. Ex.Pw3/H is desi katta and cartridges, Ex.PW3/J is seizure memo of canon camera, Ex.PW3/K is pointing out memo by accused Ram Ashish of the place of occurrence. Ex.PW3/L is pointing out memo by accused Neeraj of the place of occurrence and Ex.PW3/M is pointing out memo of accused Vijay Kumar of the place of occurrence. Ex.PW3/N is disclosure statement of Vijay Kumar and Ex. PW3/P is disclosure statement of accused Neeraj . Ex.PW3/Q is arrest memo of accused Vijay Kumar, Ex.PW3/R is arrest memo of accused Ram Ashish and Ex.PW3/S is arrest memo of accused Neeraj Gupta.
So, on the one hand, according to the complainant T.P. Jain, after the arrest of accused Ram Ashish and after the arrest of accused Vijay and Neeraj, on the pointing of accused Ram Ashish and also on the identification of complainant, SC No.138/1 40 recoveries were effected and according to the police witnesses all the proceedings were done at the spot. The case property was sealed with the seal of OPY and was seized, whereas according to the complainant PW3 T.P. Jain, the above memos Ex.PW3/F to Ex.PW3/S were prepared in the PS and the recovered case property was shown to his wife in his house, who had identified the same, which shows that either case property was recovered from the possession of accused persons, but was again got opened in the house of PW3 complainant and it was identified by PW9 Ram Murti, wife of the complainant T.P. Jain and it was again sealed and seized and documents were prepared in the PS or the same was fabricated against the accused persons So the contradictions appearing in the deposition of police witnesses on one hand and in the deposition of complainant T.P. Jain on the other hand are material in this respect and there was possibility of tampering of case property and it cannot be said that as to whether the same gold articles, which were allegedly recovered from accused Vijay were produced before the court or these were some other articles planted upon the accused persons in the house of complainant.
Prosecution has not been able to prove that the gold articles as deposed by the witnesses were recovered from the possession of accused persons are the same which were produced before the court, hence the witness cannot be relied upon in this respect. Accordingly prosecution, has not been able to prove beyond reasonable doubts that gold articles and cash were recovered from the possession of accused Neeraj and Vijay.
The arrest of accused Vijay and Neeraj is not disputed on the pointing out of accused Ram Ashish and both the accused were also identified by the complainant T.P. Jain. One country made katta with the live cartridges was recovered from the possession of accused Vijay Kumar and the sketch Ex.PW3/E of the same was prepared. It was sealed with the seal of OPY. All the police witnesses i.e. PW8 HC Brij Pal, PW-19 Sh.O.P. Yadav, PW20 SI Ramesh Kumar have corroborated in this respect. Even complainant T.P. Jain has not deposed SC No.138/1 41 anything contrary to these witnesses and has not deposed that proceedings regarding recovery of Katta and cartridges were conducted in the PS. PW3 complainant Sh.T.P. Jain has denied the suggestion in the cross examination that accused Vijay and Neeraj were not arrested in his presence. PW3 has further deposed that they had gone to ground floor and then to first floor of the house of accused Vijay and reached there at about 2.45/3.00 pm. PW3 has further stated in the cross examination that house of Neeraj was at the distance of one furlong from the house of accused Vijay and they reached there at about 3.15 pm, which shows that the police officials and complainant had visited the house of accused Neeraj.
PW8 HC Brij Pal has also deposed that in the cross examination that katta was recovered from the house of accused Vijay and they reached at about 5.00 pm. PW8 has further deposed in the cross examination that they had left the house of accused Vijay at about 6.30 pm and reached at the house of accused Neeraj at about 7.00 pm. Whereas PW3 T.P. Jain i the cross examination has stated that the reached at the house of accused Vijay at about 2.45/3.00 pm and they reached at the house of accused Neeraj at about 3.15 pm and they left the house of accused Neeraj at about 3.45 pm. So both PW3 Sh.T.P. Jain and PW8 HC Brij Pal have not corroborated each other as to at what time they had reached at the house of accused Vijay and Neeraj.
PW-19 has stated in the cross examination that they had gone to the third floor of the house of accused Vijay, which is contrary to the deposition of PW3 Sh. T.P.Jain. PW-19 has further deposed in the cross examination that investigation was conducted at the house of accused Vijay Kumar, during day time, at about 2.00 pm, so he has also contradicted with the other witnesses regarding the time as to at what time they had reached the house of accused Vijay Kumar and thereafter house of accused Neeraj Gupta and effected the recovery of country made katta and other gold articles.
PW20 SI Ramesh Kumar has also deposed that accused Vijay got SC No.138/1 42 effected recovery from the third floor. PW-20 has not been cross examined by Ld. Defence Counsel of accused Vijay and Neeraj regarding time, so nothing has appeared in his cross examination as to what time they reached at the house of accused Vijay and at what time they had left the house of accused Vijay and at what time they had reached at the house of accused Neeraj.
In defence, accused Vijay has examined Sh. Trilok Singh as DW-1, who has deposed that brother of accused Vijay i.e. Virender is his tenant residing at the first floor of the house. Accused Vijay was residing with his brother Virender. About 8/9 years back, he was sleeping, police came and took away accused Vijay. His mother was also present at that time in the house. He woke up at the instance of his mother who informed him that police had come. They had also done police verification of brother of accused Vijay as a tenant in their house. Accused was residing with his brother. Accused Vijay was lifted from the house in his wearing clothes and nothing more taken. In his presence, police did not recover any weapon from accused Vijay.
In my view, DW1 is not helpful to accused Vijay as neither accused Vijay was tenant nor accused has examined his brother Virender for the reasons best known to him. It is also not proved that Virender, brother of accused Vijay was residing in the house of DW1 as a tenant because the testimony of Virender could have been proved that accused Vijay was residing with him at the address given in the house of DW1. So DW1, cannot be relied upon in any manner and was lifted by the police from the house nor it has been suggested to any other witness.
In his defence, accused Neeraj has examined DW3 Pramod Gupta. He is the elder brother of accused Neeraj. He has deposed that before eight years back, accused Neeraj Gupta was running general merchant shop at their residence alongwith his parents. During those day, their shop used to open early in the morning at about 6.00 am and they used to close their shop at about 11.00 pm. Accused Neeraj Gupta had gone to purchase goods for the shop. He was sitting on the shop, some police officials came at the shop and made inquiries about Neeraj SC No.138/1 43 Gupta, he told them that he had gone to the market for purchasing some articles. They gave directions to DW3 that accused Neeraj Gupta be produced in the PS. On the next day, they produced accused Neeraj in PS Saraswati Vihar at about 10.00 am. Thereafter, no police officials visited their house for inquiries and nothing incriminating was recovered from their residence or at the instance of accused Neeraj Gupta.
DW3 has not given any date, when police visited their house or when he produced accused Neeraj before the police in PS Saraswati Vihar. In the cross examination, DW3 has admitted that after 2-3 days, they came to know that accused was implicated in this case. He did not inform any senior officers of the police or gave any telegram/application etc. to inform them about the false implication of accused by the police. So, in absence of any plea raised at that time or in absence of any suggestion to the witnesses that accused Neeraj was produced before the police by his elder brother, DW3, defence of accused Neeraj is not in consonance with the cross examination of witnesses hence it is just after thought, so DW3 cannot be relied upon.
In view of the depositions of police witnesses and complainant Sh.T.P. Jain, witnesses have contradicted about the time as to at what time they had reached at the house of accused Vijay and at what time they had left the house of accused Vijay and as to at what time they had had reached at the house of accused Neeraj and at what time they had left the house of accused Neeraj. Witnesses have also contradicted each other as to whether recovery was effected from the second floor of the house of accused Vijay or was effected from the third floor of the house. So the recovery of katta and cartridges from the possession of accused Vijay is also doubtful and the witnesses cannot be believed and relied upon in respect of these facts.
Accordingly, prosecution has not been able to prove beyond reasonable doubt that katta and live cartridges were recovered from the possession of accused Vijay as deposed by the witnesses.
SC No.138/1 44Hence, there is no need to discuss the deposition of PW18 K.C. Varshney, who had examined the country made pistol and cartridge, who has also proved the report Ex.PW18/A. Further there is no need to discuss the deposition of PW21 Sh. R.S. Yadav, who had gave sanction u/s 39 of Arms Act Ex.PW21/A against the accused Vijay Kumar Yadav. There is also no need to discuss the disposition of PW12 Constable Sunil Kumar, who deposited the pullandas and kattas to FSL vide RC no. 288/21 dated 29/11/02.
Accordingly, accused Vijay is acquitted for offence u/s 412 of IPC and also u/s 25 of Arms Act. Accused Neeraj Gupta is also acquitted for offence u/s 412 of IPC.
Arrest of accused Vishnu and Mohd Niyamat Ali PW-19 Inspector O.P. Yadav, has deposed that on 08/10/2002, on the identification of the complainant, accused Vishnu @ Sonu and Mohd Niyamat Ali, were arrested from Netaji Subhash Palace, Delhi. They were interrogated. Accused Vishnu @ Sonu was arrested vide arrest memo Ex.PW8/A. From his personal search, Rs. 2050/- were recovered vide memo Ex.PW3/U2 and from his right pant pocket, one buttondar knife was recovered. Sketch of the knife Ex.PW3/U3 was prepared and the same was converted into pullanda and was sealed with the seal of OPY. It was seized vide memo Ex.PW3/U1. Accused Vishnu also made disclosure statement Ex.PW-3/U6 and led the police party to his house in JJ colony, Shakurpur and produced a purse from a briefcase from inside a room. From that purse, one gold chain was found, weighing 29.750 grams. The said chain was placed in the said purse, which was converted into pullanda and sealed with the seal of OPY. It was seized vide memo Ex.PW-3/U8.
PW-19 Inspector O.P. Yadav has further deposed that accused Mohd Niyamat Ali was arrested vide arrest memo Ex.PW8/B. Rs. 25,00/- were recovered in his personal search vide memo Ex.PW3/U1. Accuesd made his disclosure SC No.138/1 45 statement vide Ex.PW3/U7. Thereafter accused led the police party to his house and produced one small purse from inside an iron box from a room. One gold chain of 14.920 gram was recovered from this purse. The gold chain was having a kunda in the shape of "S". This gold chain was put in the same purse and it was converted in a pullanda, which was sealed with the seal of OPY and seized vide memo Ex. PW3/U9. Accused Niymat Ali also pointed out the place of occurrence vide memo Ex. PW3/U4. He recorded the statement of witnesses. Case property was deposited in the malkhana and accused persons were sent to lockup.
PW3 Sh. T.P. Jain has deposed in this respect that on 8 or 9 October, 2002, he received a telephone call from the police in his office. He came back to his house. Thereafter, he reached at his house and was taken to Shakurpur by Sh. Yadav and two three other Constables. Two police officers were also taken by them from the park. They came towards Netaji Subhash Palace. Two boys were found sitting on the golchakkar. He told to the police that the said two persons appeared to be the culprits of his case. Police apprehended them. One of them disclosed his name as Vishnu and the other as Niymat Ali. PW3 has also identified both the accused before the court. Thereafter, PW3 complainant has deposed the same facts as of PW-19 and has further deposed that gold chain were recovered from the house of accused persons and thereafter they came back to his house. Both accused persons also pointed out the place of incident. Both the chains were shown to his wife, who identified the same. Thereafter, they returned to the PS. Statement of accused Niyamat Ali and Vishnu were recorded vide Ex.PW3/U-6 and Ex.PW3/U7. His statement was also recorded. The recovered chains as well as the knife and the cash were converted into pullanda and were sealed and seized vide memo Ex.PW3/U-8. And Ex.PW3/U-9. All the documents were prepared in the PS. Thereafter, he came back to his house.
In my view, PW-19 and PW-3 both have contradicted each other on material aspects as according to PW-19 Inspector O.P. Yadav, all the writing work was done at the time of arrest and recovery and the recovered articles were sealed SC No.138/1 46 and seized, whereas PW3 has also deposed the same facts, but has further deposed that in his house the sealed articles were shown to his wife and again there were sealed in the PS and seizure memos were prepared in the PS. So the testimony of both the witnesses cannot be relied upon, as the prosecution has not been able to prove that the recovered articles from the possession of accused persons as deposed by PW-19 are the same, which were produced before the court, during the examination of the witnesses, because the sealed pullandas were opened in the house of the complainant and again were resealed in the PS, so there was every possibility of the tampering of the case property and planting of the case property against the accused persons.
In the cross examination PW3 Sh. T.P. Jain has deposed that he had received a telephone call at about 12.00 noon and had left his house for Shakurpur alongwith the police at about 2.00 pm. PW3 has denied the suggestion that on 08/10/02, police had shown two persons in the PS and asked him to identify those persons as the culprit. They had reached at the house of Niyamat at about 3.45 pm. List of articles recovered from house of accused Niyamat had been prepared and he had signed it. They left the house of accused Niyamat Ali at about 4.15 pm. Some documents were prepared at the house of accused Niyamat and pointing out memo was prepared at his house on 8/10/02.
PW8 HC Brijpal, has also deposed the same facts i.e. of PW-19 regarding the arrest of accused Vishnu and Niyamat Ali and recovery effected on their pointing out. In the cross examination, PW8 HC Brijpal has deposed that no separate list of articles recovered from the house of Vishnu had been prepared by Inspector O.P. Yadav, which is contrary to the deposition of PW3 T.P. Jain, who has deposed that list of recovered articles were prepared and he had signed the same.
Ld. Defence Counsel has contended that PW8 HC Brijpal has stated in the cross examination that accused Niyamat Ali was arrested at about 3.30 pm whereas according to his arrest memo, he was arrested at about 7.00 pm, which shows that HC Brij Pal has deposed falsely in this respect and infact accused SC No.138/1 47 Vishnu was not arrested in his presence.
Ld. Defence Counsel has further contended that PW8 has further stated in the cross examination that disclosure statement had been recorded at the place of arrest. There was day light when the accused persons were arrested. The recovery memos in respect of Niymat had been prepared at the spot of recovery. No separate list of articles seized from Niyamat had been prepared, whereas according to the complainant PW3 Sh. T.P. Jain list of recovery articles was prepared and he had signed the same. PW3 T.P. Jain has further deposed that certain memos were prepared in the PS, after sealing and seizing the same recovered from the accused persons, so the contradictions appearing in the deposition of PW3 T.P. Jain and PW8 HC Brijpal are material, so witnesses cannot be believed relied upon in any manner.
Ld. Defence Counsel has further contended that except recovery memo, no other documents were prepared at the house of accused Niyamat, as deposed by PW8 HC Brijpal in his cross examination, which proves that documents were prepared or in the PS as deposed by PW3 complainant T.P. Jain.
PW13 Constable Satbir Singh has also deposed the same facts regarding the arrest of accused Vishnu and Niyamat and recovery effected thereafter from their possession.
Ld. Defence Counsel has contended that in the cross examination of PW- 13 Constable Satbir Singh, it has come that Investigating Officer had prepared list of articles recovered from the house of accused Niyamat Ali and he had signed the same also and has further admitted that the said list is not available in judicial file,which shows that all the recoveries were planted by the accused persons.
Ld. Defence Counsel has further contended that PW13 Constable Satbir Singh has further stated that after the arrest of accused Niyamat Ali, they went to Gol Chakkar, Subhash Palace, whereas the same has not been deposed by PW3 T.P. Jain or by PW19 Inspector O.P. Yadav, who further admitted that he did not go to the house of accused Niyamat Ali alongwith complainant T.P. Jain and a knife was SC No.138/1 48 recovered from the possession of accused Vishnu at Subhash Palace, which shows that neither he nor T.P. Jain is the witness to the alleged recovery made from the house of accused Niyamat Ali.
Ld. Defence Counsel has further contended that PW3 has deposed that during the course of house search of accused Vishnu, one knife was also recovered, whereas according to PW13 Constable Satbir Singh knife was recovered from the possession of accused Vishnu from Subhash Palace and it has also been deposed by PW-19 that knife was recovered from the personal search of accused Vishnu at the place from where he was arrested. So the witness cannot be relied upon in any manner.
Ld. Defence Counsel has further contended that in the cross examination, PW19 has stated that he arrested accused Vishnu and Niyamat Ali on 08/12/09 at about 4.00 pm, whereas according to the arrest memo Ex.PW8/A of accused Vishnu shows the time of arrest at about 7.00 pm and arrest memo of accused Niyamat Ali Ex.PW8/B shows the time at about 9 pm, so PW-19 cannot be believed in any manner.
Ld. Defence Counsel has further contended that PW19 has admitted in the cross examination that he did not prepare any separate list of article recovered nor the copy of the same was handed over to Vishnu, whereas PW3 T.P. Jain and PW13 Constable Satbir Singh have deposed contrary to this facts and have stated that list were prepared and they had signed the same, which is not on judicial file, so witness cannot be relied upon.
PW20 has deposed that on 08/10/02, he alongwith HC Brijpal and Constable Satpal left the PS and reached to the house of of the complainant, who joined them for the search of remaining accused persons and when they reached near Safeda Picket, one secret informer informed to the Investigating Officer that two other accused persons of this case were sitting at Gol Chakkar at Netaji Subhash Palace. PW13 Constable Satbir Singh also joined them and then they reached at Netaji Subhash Palace alongwith secret informer and at the instance of SC No.138/1 49 secret informer, two boys were apprehended and complainant T.P. Jain also identified both the boys as the accused who also robbed his house.
Ld. Defence Counsel has contended that other witnesses i.e. PW3 T.P. Jain, PW8 HC Brij Pal, PW13 Constable Satbir Singh have not deposed that secret informer was also with the police and they have not deposed that accused persons were pointed out by secret informer. PW13 Constable Satbir Singh has also not deposed that he joined the police party later on from the picket. Even PW13 Constable Satbir Singh has also not deposed that he joined the police party from Safeda Picket rather he had deposed that he joined the investigation with the police party from the PS. So the witnesses cannot be believed in any manner.
According to PW20, SI Ramesh Kumar, knife was recovered from the possession of accused Vishnu at the place of his arrest and they got recovered the gold articles,which were sealed and seized at the place of recovery. PW 20 has not been cross examined on the same lines, on which other witnesses have been cross examined hence it is difficult to say that he has contradicted with other witnesses, but he has certainly deposed contrary with the deposition of PW3 T.P. Jain, who had deposed that after the effecting the recovery, police party alongwith accused persons reached at his house and recovered articles were shown to his wife , who had identified the same and all the articles were again sealed in the PS and seizure memo was prepared.
Accused Vishnu has not explained as from where he was arrested nor he has raised any plea that he was lifted from his house. In defence, he has examined DW-2 Sh. Jagdish, who is his father, DW2 has deposed that police came to him at about 9.30 pm and they made inquiries about accused Visnu and he told them that he was on his work. On asking, police told him that Vishnu was called by their senior officer, so he produced accused Vishnu, on the next day at about 11 am in PS Saraswati Vihar. Later on, he came to know that accused Vishnu was implicated in some case. Police did not recover anything from his house. No such suggestion has been given to the witness nor it has been explained by the accused in SC No.138/1 50 his statement recorded u/s 313 Cr.Pc, so DW2 cannot be relied upon in any manner.
There is no evidence to prove that accused Vishnu was produced before the police on the next day at about 11.00 pm, by his father in PS Saraswati Vihar. As none of the witness has been cross examined on these lines, so there is no explanation as to whether, accused was produced on the next day at about 11.00 pm at PS Saraswati Vihar or not. Hence DW2 is not helpful to the accused and cannot be relied upon.
In his defence, accused Niyamat Ali has examined DW4 Rehmat Ali, who is his elder brother. He has deposed that accused Niyamat Ali was studying in 10th class. He also used to sit at their hard ware shop. About 8/9 years back, at the time of festival of Dussehra, one police official i.e. Constable Satyabir came out his house and asked for his younger brother Niyamat and told that he was called by his senior officers. He took Niymat Ali with him on the pretext of making some inquiries and also assured them that after making inquiries, Niymat Ali will be sent back. So, they allowed him. At that time, Constable Satyabir did not make any recovery from their house. Thereafter, no police officials visited their house nor his brother was sent back.
DW4 has further deposed that he made inquiries from the police by visiting the PS. It was told that and was implicated in some case and they could meet him in Tihar Jail. DW4 has further deposed that his brother did not go outside anywhere. Earlier DW4 used to work in attachi factory of one Om Parkash Jain, relative of complainant T.P. Jain. Om Parkash Jain suffered some loss due to his working in making attachis. It had happened about 11 years before. Due to loss, he was thrown out the factory. Sh.O.P. Jain, did not give his due salary, so some altercation had also taken place. At that time, O.P. Jain had threatened him to see him. Because of this reason, his brother might have been implicated in this case.
No such suggestion has been given to any of the witness nor accused has explained the same in his defence u/s 313 Cr.PC that he was falsely implicated in SC No.138/1 51 this case due to these reasons. So the deposition of DW4 Rehmat Ali is not in consonance with the cross examination of witnesses examined by the prosecution nor any complaint was made by DW4 regarding taking away of accused Niyamat Ali by the police, so it seems to be an thought, hence DW4 cannot be relied upon, in any manner.
In view of the above discussion, the contradictions appeared in the deposition of witnesses are material, regarding the recovery of gold articles and knife effected from the possession of accused Vishnu and Niyamat Ali. The contentions of Ld. Defence Counsel are forceful and considering the same, witnesses cannot be believed in any manner. So the prosecution has not been able to prove beyond reasonable doubts that gold articles were recovered from accused Vishnu and Niyamat Ali alongwith cash and one knife.
Accordingly, accused Vishnu is acquitted for offence u/s 412 of IPC and also u/s 25 of Arms Act. Accused Niyamat Ali is also acquitted for offence u/s 412 of IPC.
Arrest of accused Mukesh and recovery from his possession.
In this respect, PW20 SI Ramesh Kumar has deposed that on 20/02/03, accused Mukesh surrendered before the court at Tis Hazari. He reached there and moved an application for interrogation of accused Mukesh, which was allowed. He interrogated the accused and arrested him. Accused Mukesh made his disclosure statement Ex.PW13/X3. An application for permission for interrogation and formal arrest is Ex.PW20/M. Accused was sent in judicial custody and PW20 moved an application Ex.PW20/N, for judicial TIP of the accused. Accused Mukesh refused to join the TIP. PW20 has further deposed that on 20/02/2003, he identified the accused Mukesh before the court and accused refused to join the TIP vide Ex.PW17/A. He obtained one day PC remand of the accused vide his application Ex.PW20/O. During PC remand, accused Mukesh led the police party SC No.138/1 52 to various places, but nothing was recovered, then he was confined to lock-up. Thereafter, on the next day, after his medical examination, accused was interrogated and he again made a disclosure statement Ex.PW13/X5. Accused led to police party to his house no.I-374, JJ Colony Shakarpur, Delhi and took out a cigarette box from an iron box lying from inner room and got recovered one golden chain. It was about 23.5 gm. It was sealed in a pullanda with the seal of RKS and was seized vide memo Ex.PW13/X6. Accused also pointed out the place of occurrence vide Ex.PW13/X4. PW 20 has further deposed that he deposited the case property with the MHC(M) and accused was sent to JC after producing before the court. PW 20 has further deposed that he moved an application before the court for judicial TIP of the jewellery. Complainant identified the same before the court vide memo Ex.pW17/B. After completion of the investigation, he prepared the challan and filed before the Court.
PW13 Constable Satbir Singh has also deposed the same facts as of PW20 SI Ramesh Kumar. PW3 Sh. T.P. Jain has deposed that he kept on calling the police station regarding apprehension of the other culprit. After about 3 to 4 months, he had come to Tis Hazari Courts regarding release of articles on superdari, he saw a person with police outside the court no. 36. SI Ramesh was also there, the said person appeared to him to be one of the culprit. He told this fact to SI Ramesh, but he did not take any action and PW3 left for his job. Abour 3-4 days thereafter, PW20 SI Ramesh gave a telephone call to PW3 and informed him that the said person had been arrested and that a chain was recovered from him. PW3 identified the said chain in court during judicial TIP before Ld MM and got released the same on superdari.
In the cross examination, PW3 Sh. T.P. Jain has denied the suggestion that he was called by the SI Ramesh in Tis Hazari Court, when accused Mukesh had surrendered before the court. PW3 has further denied that accused Mukesh was unmuffled face and was seen by him, but PW3 has told that infact he had never come to court on that day and he did not know about surrender of accused Mukesh.
SC No.138/1 53PW3 has also denied that he had seen accused Mukesh for the first time when he surrendered in court and for the second time in the PS, when he was shown to him and got identified by police.
The identity point of accused Mukesh has already been discussed and regarding the recovery of chain, PW3 has stated that the said chain was not recovered in his presence. So the complainant T.P. Jain, is not helpful except the fact that he had identified the gold chain recovered from t he accused Mukesh during judicial TIP before the concerned MM.
In the cross examination, PW20 SI Ramesh has stated that he recorded the disclosure statement of accused Mukesh Ex.PW13./X3 outside the court. He has denied the suggestion that complainant T.P. Jain was also present, when accused Mukesh appeared before the court. He has also denied that accused was unmuffled. PW20 has specifically stated that after taking the custody of accused Mukesh, he was got muffled, but accused removed the handkerchief from his face.
On the other hand, Ld APP has contended that during examination of PW20, Ld. Defence Counsel has not objected to the case property, for not being produced before the court, so in the cross examination, there was no need to ask about the question of identity of case property and merely on this ground the witness cannot be disbelieved.
PW20 has also denied the suggestion that complainant had given a chain,which was planted upon the accused Mukesh, so in my view the contentions of Ld. Defence Counsel are not forceful.
Nothing came out from the cross examination of PW-13 Constable Satbir Singh regarding the recovery effected on the pointing out of accused Mukesh to disbelieve his testimony. Merely there was no public witness and ownership document of chain was not collected is no ground to disbelieve PW13 and PW20 to the fact that no recovery was effected on the pointing out of accused Mukesh, which was identified by complainant during TIP.
In defence, accused Mukesh has examined DW5 Roop Singh, who has SC No.138/1 54 stated that in the second week of September, 2002, police came in the house of his sister and made inquiries about Mukesh. His sister called him and he reached there and made inquiries from police as to what had happened. Police told him that Mukesh was to be implicated in a dacoity case. He told them that Mukesh was not involved in any such case and was not of this nature. Later on, Mukesh was produced before the Court in the year 2003. DW5 has further deposed that he made complaint to the senior police officials for conducting vigilance inquiry against the complainant, which is Ex.PW5/A and he has also produced postal receipt Ex.PW5/B. He also received a notice from Directorate of Income Tax (Vigilance). Photocopy of the same is Mark X. DW5 has further deposed that Mukesh used to work in a factory at Lawrence Road and he used to go to the factory at about 7.00 am and used to come back at about 9.00 pm. DW5 has himself admitted that Mukesh had appeared before the Court in the year 2003. So DW5 is not helpful in any manner as accused himself had surrendered before the court. DW5 has not deposed anything about the recovery. No reason has been given by him as to why accused Mukesh was falsely implicated by complainant T.P. Jain. DW5 has made a complaint against the complainant for having excess property and mis using his position for which he was also called by Income Tax officer Vigilance, but neither DW5 has deposed anything as to why complainant wanted to falsely implicate accused Mukesh nor he has given any such fact in the complaint Ex.PW5/A. Accused Mukesh has not claimed the gold chain as his own rather plea of accused is that it was planted upon him for which no valid reason has been given nor suggested to witnesses. PW13 and Investigating Officer have been cross examined regarding recovery of gold chain from the possession of accused Mukesh and testimonies of PW13 and PW20 are corroborating each other. Nothing came out from their cross examination to disbelieve that gold chain was not recovered from the accused Mukesh on his pointing out during his police custody. So the prosecution has been able to prove beyond reasonable doubt that one gold chain was recovered from the possession of SC No.138/1 55 Mukesh on his pointing out during his custody.
PW17 is Sh Rakesh Sayal, the then Ld MM. He has proved the TIP proceedings of accused Mukesh . Accused Mukesh had declined to participate in the TIP, on the ground that he was shown to the complainant. He has proved his certificate with proceedings Ex.PW17/A. PW17 has further conducted TIP of case property, which was conducted on 11/03/2003 and it was conducted on 13/03/11, wherein Complainant T.P. Jain had identified gold chain correctly. He has proved case property proceedings as Ex. PW17/B. PW17 has not been cross examined by Ld. Defence Counsel for accused Mukesh , so his proceedings have not been challenged in any manner and the prosecution has been able to prove that gold chain was identified by T.P. Jain correctly in the TIP proceedings.
PW-16 is Inspector Suresh Kumar. He has stated that on 27/10/02, investigation of this case was handed over to him by the SHO. He got sent the sealed parcel containing country made pistol to FSL, Malviya Nagar through Constable Sunil Kumar. He also recorded the statement of MHC(M) and Constable Sunil Kumar in this case. Thereafter, he completed the chargesheet and filed the same in the court against five accused except accused Mukesh. This witness has not been cross examined by Ld. Defence Counsel for accused persons in any manner.
PW14 is HC Tejvir Singh. He was working as MHC(M). He has deposed that on 12/09/02, he was posted as MHC(M) at PS Saraswati Vihar and on that day. PW19 O.P. Yadav deposited in the malkhana two pullandas with the seal of OPY and one car no. DL8CG-9187 and he made entry in this regard vide Sl. No. 2449, copy of which is Ex.PW14/A. He has further deposed that on 13/09/02, sealed pullanda containing key of the car was sent to FSL Malviya Nagar vide road certificate no. 239/21, copy of the same is Ex.PW14/C and entry was made in the malkahana registry, copy of which is Ex.PW14/B. Sealed pullanda of the key of the car was received from FSL on 16/09/02, copy of entry in this regard is Ex.PW14/C. PW14 has further deposed that on 20/09/002, PW-19 SC No.138/1 56 Inspector O.P. Yadav has deposited in the malkhana articles recovered during the personal search of three accused persons alongwith four pullanda having seal of OPY. PW-19 also deposited with PW-14 one camera in unsealed condition and two speakers in unseal condition and one bag containing a pair of sandels, tawa, imamdasta and three pents in unsealed condition. All the said articles were deposited vide entry at serial no. 2461 and copy of the same is Ex.PW14/D. PW14 has further deposed that on 29/11/02, one of those pulllanda containing seal of OPY was sent to FSL, Malviya Nagar vide road certificate number 288/21. It was containing desi katta and kartos. Copy of entry in this regard is Ex.Pw14/E. PW14 also produced the original road certificate register in respect of entry no.288/21, copy of same is Ex.PW14/F. He has further deposed that on 08/10/02, three pullandas bearing the seal of OPY along with personal search articles of two accused were deposited in the malkhana by Inspector O.P. Yadav and these were deposited vide entry no. 2496, copy of same is Ex.PW14/G. He has further deposed that on 21/02/03, SI Ramesh Kumar deposited a cloth pullanda bearing seal of RK and it was deposited vide entry no.2112. Copy of the same is Ex.PW14/H. He handed over the said pullanda to SI Ramesh Kumar on 13/03/03 for being taken to Court for TIP proceedings. Copy of entry in this regard is Ex.PW14/J. The pullanda was deposited back on the same day with the seal of RS and on 28/03/03, the chain was handed over on superdari to the superdar, copy of which is Ex.PW14/K. PW6 Constable Arvind Singh has further corroborated with PW14 and has deposed that he had obtained a pullanda from MHC(M) vide road certificate no. 239/21 and deposited the same in Finger Print Bureau Malviya Nagar. Thereafter, he handed over the receipt to the MHC(M). His statement was recorded by the Investigating Officer. He further deposed that nobody tampered with the exhibits as long as the same remained in his custody. On 16/09/02, he brought the result from FBP, Malviya Nagar and deposited the same with MHC(M) In view of the above discussion, prosecution has been able to prove SC No.138/1 57 beyond reasonable doubt that one gold chain belonging to T.P. Jain was recovered from the possession of accused Mukesh, which was dishonestly retained by the accused Mukesh knowing or having reason to believe the same to be stolen property, so accused Mukesh is convicted u/s 411 of IPC and he is acquitted u/s 412 of IPC as the prosecution has not been able to prove that the same was belonging to any dacoity, but was a robbed article, committed in the house of complainant T.P. Jain.
Announced in the open court (VIRENDER KR. GOYAL)
today on 24th of May 2011 ADDL. SESSIONS JUDGE
FAST TRACK COURT
ROHINI
SC No.138/1 58
SC No.138/1 59