Delhi District Court
State vs . 1. Davender on 20 July, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI.
Sessions Case No. 881/2007
Unique Case ID: 02404R0576142007
State Vs. 1. Davender
S/o Bhim Singh
R/o Village Gwalda,
Post Office: Ishrana
Distt. Panipat, Haryana.
(Convicted)
2. Surinder Kumar @ Nanhe
S/o Baljeet
R/o VPO : Mattan
PS: Bahadurgarh
Distt.: Jhajjar, Haryana
(Convicted)
3. Bijender Lochab
S/o Randhir Singh
R/o Village & PO : Bupania
PS: Bahadurgarh
Distt.: Jhajjar, Haryana
(Convicted)
4. Harish @ Kale
S/o Jagdish
R/o Village & PO : Bupania
PS: Bahadurgarh
Distt.: Jhajjar, Haryana
(Convicted)
SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 1 of 65
5. Rohan Arora
S/o Shri Krishan
R/o 219/7, Vivekanand Nagar,
Near Hanuman Properties
PS: Bahadurgarh
Distt.: Jhajjar, Haryana
(Already expired)
6. Ajit @ Master
S/o Ran Singh
R/o VPO : Barani, PS: Beri,
PS: Bahadurgarh
Distt.: Jhajjar, Haryana
(Discharged on 28.2.08)
FIR No. : 637/2007
Under Section : 392/397/411/34 Indian Penal Code.
Police Station : Nangloi
Date of committal to Sessions Court : 6.12.2007
Judgment reserved on : 23.5.2011
Judgment pronounced on : 13.7.2011
JUDGMENT:
Brief Facts:
As per the allegations on the intervening night of 6th & 7th of August, 2007 at 1:30 AM, near Abhinandan Vatika, Main Rohtak Road, Delhi, the accused Davender, Surinder, Bijender and Harish in furtherance of their common intention along with their coaccused Rohan Arora (expired) and Ajit @ Master (discharged) robbed SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 2 of 65 Ct. Shri Kishan of his mobile phone, motorcycle and purse containing cash and ICard and while doing the aforesaid robbery the accused Harish and Surinder used deadly weapon i.e. country made pistol. It is further alleged that the accused Surinder and Harish were found in possession of stolen motorcycle make Bajaj bearing No. DL4 SAY 7916 and the accused Bijender was found in possession of stolen Nokia 6600.
Case of prosecution in brief:
The case of the prosecution in brief is that on the intervening night of 6th & 7th August, 2007, on the receipt of DD No. 52 A, SI Sunil Kumar along with Ct. Sunil reached at main Rohtak Road in front of Abhinandan Vatika, Mundka, Delhi, and met the complainant Shri Kishan who gave his statement to the police stating that he was posted at Police Station Punjabi Bagh as Constable and on the intervening night of 06/07.08.2007 at about 1:30 AM he after finishing his duty was going to his house on motorcycle bearing No. DL4SAY7916 make Bajaj Discover owned by his brotherinlaw Ajay Kumar. According to him, at about 1:30 AM (night) when he reached at Mundka in front of Abhinandan Vatika, Rohtak Road, one Santro Car came from behind which forcibly stopped his motorcycle and four persons came down of the said Santro Car and they started beating him by giving him fist and leg blows. Complainant further SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 3 of 65 told the police that those boys thereafter took out his mobile phone make Nokia 6600 No. 9868704850 from the pocket of his shirt and also took his purse containing identity card, other important papers and Rs.3,000/ cash and thereafter one of the started his motorcycle and ran away from the spot. He further told the police that the other three boys out of whom two boys had shown him desi kattas, also started the Santro Car bearing No. DL8CG4984 of Chocolate colour and left the spot. The complainant further told the police that he could identify the assailants who according to him were aged between 2025 years.
Thereafter, SI Sunil Kumar prepared the rukka and got the case registered and prepared the site plan at the instance of complainant after which the complainant / Shri Kishan was sent to Maharaja Agarsain Hospital for medical aid and later on his MLC was collected from the hospital and also recorded his supplementary statement under Section 161 Cr. P.C. and added Section 395 IPC.
During in investigations on receipt of secret information the accused Davender, Surinder @ Nanhe, Bijender Lochab, Harish @ Kale, Rohan Arora and Ajit @ Master were arrested in the present case. The accused Harish @ Kalli and Surinder were arrested from Rani Khera Mor near Mundka along with stolen motorcycle bearing number DL4SAY7916 and one loaded desi katta each were also recovered from their possession. The accused Davender, Bijender and SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 4 of 65 Rohan Arora were arrested along with CBZ motorcycle and the mobile phone Make Nokia 6600 belonging to the complainant was got recovered from the possession of accused Bijender whereas one desi katta each were recovered from the possession of accused Davender and Rohan Arora and on their instance the coaccused Ajit @ Master was also arrested and the Santro car used in the incident bearing no. DL8CG4984 whose actual number was HR26 AH2752, was recovered from his possession. After completing the investigations, the challan was filed before the court. CHARGE:
Ld. predecessor of this court settled charges under Section 392/34 Indian Penal Code against the accused Davender, Surinder Kumar @ Nanhe, Harish @ Kale and Rohan Arora (expired). Charge under Section 397/34 Indian Penal Code was also settled against the accused Harish and Surinder. Further, charge under Section 411 Indian Penal Code was also settled against the accused Surinder, Harish and Bijender. All the accused have pleaded not guilty and claimed trial.
EVIDENCE:
In order to discharge the onus upon it, the prosecution has examined as many thirteen witnesses:
SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 5 of 65 Complainant and Public Witnesses PW2 Ct. Shri Kishan has deposed that on the intervening night of 6/7.08.2007, at about 1.30 am (Night), after finishing his duty, he was going to his house on motor cycle bearing registration No. DL 4SAY7916 make Bajaj Discover. The motor cycle was owned by his brotherinlaw Ajay Kumar. On his way back, when he reached Abinandan Vatika, on main Rohtak Road ahead of village Mundka, a Santro Car came from the back side and pushed him towards the right hand side verge of the road. Some time later, they made him stop the motor cycle and four boys alighted from the car. According to him, there were five occupants in the car, four of them came out and started beating him with kicks and fist blows and snatched his mobile phone make Nokia bearing No. 9868704850 from the pocket of his shirt and they also removed his purse from the pocket of his trouser containing his identity card, some papers and Rs. 3,000/ in cash. He has deposed that two of four boys were armed with Desi Kattas and they had pointed out katta towards him and then snatched the above said articles. One of them also snatched his motor cycle and drove away the same while the other three again boarded the car and all of them ran away towards Bahadur Garh. According to him, the registration number of said Santro car was DL 8CG 4984 and was of Chocolate colour. He has deposed that all of four boys were within the age group of 20 to 25 years and he is in a SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 6 of 65 position to identify them. He has deposed that the motorcycle contained his police uniform, cap and rain coat and states that he had also received injuries in the occurrence. Thereafter, he made a call at telephone number 100 from a nearby patrol pump and police reached at the spot and his statement was recorded by the police which is Ex.PW2/A bearing his signatures at point A and was taken to Maharaja Agersen Hospital for his medical examination. After his medical he returned to the spot and pointed out the place of occurrence to the IO SI Sunil Kumar who prepared rough site plan at his instance which is Ex.PW2/B. On 18.08.2007, he had gone to the Police Station Nangloi to collect his mobile phone, which had been ordered to be released on superdari where accused Harish, Rohan Arora and Surinder were present in the Police Station and on seeing them he identified them to be one of those four who had stopped his motor cycle and robbed him. He had pointed out and correctly identified accused Harish @ Kali, Rohan Arora and Surinder, in court. He had come to know the name of the accused persons at the Police Station. According to him, the accused Harish and Surinder were armed with Desi kattas at the time of occurrence. The mobile phone was released to him on superdari. According to the witness, on 19.08.2007, he was called by the IO to join the investigation. He has deposed that accused Rohan Arora, Harish and Surinder were present in the Police Station, whom he had identified on 18.08.2007. Witness SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 7 of 65 has further clarified that he had identified accused Rohan, Harish and Surinder in the Police Station on 18.08.2007 and not on 19.08.2007.
He has correctly identified the accused Harish, Surinder and Davender in the court also by pointing out towards them and also by name.
According to PW2 Ct. Shri Kishan on 19.08.2007, he along with IO and the four accused Rohan, Harish, Surinder and Bijender and the other police staff went to village Matan, kachi nahar, Distt. Jhajhar (Haryana) and all the four accused pointed out the same i.e. kachi nahar and took out his police uniform cap and rain coat lying in a polythene which he identified as his own and the Investigating Officer (IO) seized the same vide pointing out memo and seizure memo Ex.PW2/C having his signatures at point A. Thereafter, the accused pointed out the place of occurrence and IO prepared the separate pointing out memos. Again on 20.08.2007, Ct. Shri Kishan identified the accused Davender outside the court in the Rohini Court Complex in the presence of the IO and also identified Motorcycle No. DL 4S AY 7916 which was produced in the court by superdar Sh. Ajay Kumar which is Ex. P1. This witness has further deposed that his mobile phone having EMI No. 353798000856601 made Nokia 6600 was released on superdari to him by the order of the court but he has now lost the same on 28.02.2010 in the Central Market of Punjabi Bagh regarding which NCR No. 300/10 was SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 8 of 65 registered at Police Station Punjabi Bagh, due to which he is unable to produce the same. The witness has produced the computer generated copy of the NCR which is Ex.PW2/D bearing his signatures at point A. The witness has further identified the rain coat, one cap and one polythene containing the police uniform having the name plate on which Shri Krishan was engraved as the same which was recovered and seized vide seizure memo Ex.PW2/C same were collectively Ex.P2. The witness has further identified his I card which was on the file, same was Ex.P3. Accused Bijender was not present in the court and was exempted as his identity was not disputed.
In his cross examination by the Ld. defence counsel, the witness Shri Kishan has deposed that he made a call at No.100 on the intervening night 6/7.08.2007 at about 1.30 AM and states that he did not tell them the number of Santro Car when he made the call at 100 number. He does not remember whether he had informed them about the colour of the car or not and has denied that he had stated the number of two cars in his No. 100 call. He does not remember whether he informed that number of the car was either 4284 or 4849 when he made No. 100 call. He further states that on the date of the incident, his duty hours were from 5:00 pm to 1:00 am. He states that he did not make any departure entry / ravangi while leaving the police station and has denied that he was not on duty on that day or SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 9 of 65 that he had got a false case registered. He made call at No. 100 from a petrol pump near the place of incident which was situated towards Bahadurgarh side. The witness has stated that he does not remember whether the petrol pump was of Indian Oil or of Bharat Petroleum and admits that he normally used the same road i.e. from Bahadurgarh to Punjabi Bagh. According to him the place of incident was half a km. away from the petrol pump from where he made the PCR call. He has deposed that the petrol pump from where he made the call was situated on the left side of the road going from Delhi to Bahadurgarh and that he made the call from the land line. He did not notice how many persons were present in the petrol pump at the time but states that he had met only two persons in the petrol pump when he made the call but he could not tell the names or addresses of those persons. He is unable to tell the time when the police reached at the spot. He deposed that initially only two police officials had come to the spot on the call but he is unable to tell their names but according to him one of them was SI and other was constable and first his statement was recorded by those officials. He does not recollect the conveyance by which those police officials had come to the spot and states that he was interrogated for about one to one and a half hours. According to him, he went to the Maharaja Agarsen Hospital of his own and these police officials went away and explains that he had called his brother in law Ajay to the spot who took him to Maharaja SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 10 of 65 Agarsen Hospital. He has denied that he did not receive any injuries and it is for this reason that the police officials did not take him to the hospital and he deliberately went to the hospital of his own. He has denied that there was no such incident of snatching and the entire story had been concocted by him and it is for this reason that there was no departure entry / ravangi from police station. He has denied that he was never using the motor cycle belonging to his brother in law and has admitted that the motor cycle belonged to his brother in law and was not transferred in his name. According to the witness, he owned a two wheeler scooter on the date of incident and he was using the same for his private use. The uniform which he was wearing on the date of the incident was handed over to the IO on 19.08.2007. He has deposed that except for the name plate on the shirt there was no other specific identification mark to show that he was wearing the uniform on the date of incident and has admitted that the uniform was not torn from anywhere and was intact. He has deposed that he had visited the PS Nangloi 5 or 6 times regarding this case and has denied that neither any recovery was effected nor any seizure memos or pointing out memos were prepared in his presence. He is also not aware whether his signatures were obtained on the seizure memos or pointing out memos. He has also deposed that his statement was recorded by the IO five times. According to him, he had seen the accused first time at the time of incident and secondly on 18.08.2007 SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 11 of 65 in the Police Station. He has denied that he had managed the NCR No. 300/2010 Police Station Punjabi Bagh regarding loss of mobile as he was earlier posted in the same Police Station and has further denied that he had falsely implicated the accused Davender, Harish and Surinder or that he has deposed falsely.
PW6 Ajay Kumar is the brotherinlaw / Sala of the complainant. He has deposed that Motorcycle bearing DL 4SA Y7916 make Bajaj Discover had been purchased by him in his name and his brotherinlaw (Jija) was using this motorcycle. According to him on 6/7.08.2007 the above said motorcycle was stolen from his brotherinlaw (Jija) from Mundka, Rohtak Road. His brotherinlaw informed him that 45 boys had come in a Santro Car and robbed him of the said motor cycle. Further, on 18.08.2007 he had taken this motor cycle on superdari. The copy of the RC of this motor cycle was Ex.PW6/A. He has not been cross examined on behalf of the accused despite opportunity in this regard.
PW11 Satish Kumar has brought the summoned record pertaining to RC of vehicle Santro No. HR 26 AH 2752 which vehicle according to their record was in the name of Manoj Kumar Devgan R/o H. No. 1040, Second Floor, Sector14, Gurgaon, Haryana and the copy of the said RC was Ex.PW11/A. He has further deposed that the authority received the information regarding the theft of this vehicle on 02.08.2007 on the basis of which the SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 12 of 65 endorsement had been made in the register and the copy of the intimation was Ex.PW11/B and the copy of relevant page where the entry was made in the register was at point X on Ex. PW11/D. During crossexamination, he deposed that they did not get any verification done with regard to the factum of theft in respect of which the intimation Ex.PW11/B was given to them. He has denied that the entries were manipulated and have been made subsequently. Medical Evidence:
PW12 Dr. Anil Jindal, deposed that on 07/08/2007 Dr. Vijay was working as CMO at Maharaja Agarsain Hospital, Punjabi Bagh. On that day he examined the injured/ patient Shri Kishan, S/o Sh. Ram Singh, aged about 37 years, Male, with alleged history of assault by 56 persons vide MLC Ex.PW12/A which bears the signature of Dr. Vijay at point A. As per the said MLC the nature of MLC was Simple as was mentioned at point B. Dr. Vijay had left the services from the hospital and his whereabouts were not known. He was well conversant with the signature and handwriting of Dr. Vijay as he had seen him while writing and signing in his official course of duty as he had seen him while writing and singing. He had not been cross examined by defence counsel.
SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 13 of 65 Police / Official Witnesses:
PW1 HC Vijender has deposed that on the intervening night of 6/7.8.07 he was posted in police station Nangloi as duty officer from 1:00 a.m. To 9:00 a.m and on that day at about 130 a.m. he received the rukka sent by SI Sunil Kumar which was brought Ct. Sunil Kumar. On the basis of this rukka, he recorded FIR No. 637/07 for offences punishable u/s 394/397 r/w 34 IPC. He had brought computerized copy of the FIR, the copy of the FIR was Ex.PW1/A. An objection was raised on the ground that it was violative of Section 65 B of Indian Evidence Act. After registration of FIR, the witness has proved having made an endorsement on the rukka and the original rukka was retained in the police station. He had brought the original rukka bearing his endorsement which was Ex.PW1/B bearing his signatures at point A. Further on the same day he recorded DD No. 52 A at 224 a.m.(night) and the copy of the same was Ex.PW1/C. During crossexamination, he has deposed that he had not brought any certificate as contemplated under Section 65 B of Indian Evidence Act. He denied that FIR was not recorded at the time mentioned therein. I may observe in this regard that the objections raised by by Ld. defence counsel are unfounded and devoid of merits since the said document stands proved by the same person who had himself made an entry of the same in the computer. SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 14 of 65
PW3 Ct. Sunil Kumar has deposed that on the intervening night of 6/7.08.2007 he along with SI Sunil Kumar was on emergency duty at Police Station Nangloi. After receipt of DD No. 52 A, he accompanied SI Sunil to main Rohtak Road in front of Abhinandan Vatika, there they met Ct. Shri Kishan in an injured condition. He told the Investigation Officer about the occurrence after which the investigating officer recorded the statement of Shri Kishan and prepared rukka. He has deposed that he went at Police Station alongwith the rukka and after getting the case registered, he returned at the spot and the original rukka and copy of FIR were handed over to the IO. He has also deposed that the complainant was got medically examined at Maharaja Agarsen Hospital and the IO also prepared site plan at the instance of the complainant and which is his statement was recorded by the IO.
In his cross examination he stated that he had left the Police Station at about 2.25 am and reached the spot at about 2.35 AM. Entire, staff on night patrol duty numbering about 8 to 10 had reached the spot. He has stated that he had gone to the spot on the motor bicycle of the IO which spot was about five km. from the Police station. There was a petrol pump next to Abhinandan Vatika and the complainant met them about half a kilometer away at a spot which was about mid way between Abhinandan Vatika and Petrol Pump. The witness states that he did not notice the location of SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 15 of 65 injuries on the persons of Shri Kishan but he (complainant) seemed disturbed and was sitting on the road side, on the pavement when they reached there. He has deposed that he did not notice if his clothes were torn and the complainant was to the hospital in an official vehicle, in his presence by the IO, after he had returned to the spot with the rukka. According to the witness, he had gone to the Police Station on the motor cycle of a patrol duty staff and returned to the spot on his own motor cycle which was parked at the Police Station. He does not remember the name of official on whose motor cycle he had gone to the Police Station and is unable to tell if the Investigation Officer made inquiries from the officials of Petrol Pump or Abhinandan Vatika. He has denied that rukka was not prepared at the spot or that all proceedings were carried out at the Police Station. He further denied that he was deposing falsely being a police official.
PW4 HC Baljeet deposed that on 24.09.2007 he was posted at MHC (M) in PS Nangloi on that day on the instructions of IO he handed over four sealed pullandas alongwith FSL Form to Ct. Vijay for depositing in FSL Rohini vide RC No. 334/21. After depositing the same he had deposited the receipt with him. The sealed pullanda remained intact during his custody and he had made entry in the register No. 19 in this regard. He had brought the register No. 19 the copy of his endorsement in register No. 19 was Ex.PW4/A. He had also brought the register No. 21 the copy of the same was SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 16 of 65 Ex.PW4/B. In his cross examination he stated that he was not the regular MHC (M) and he was working as MHC (M) only on 24.09.2007. He denied that he was given that duty for some specific reasons. He further denied that he had manipulated this entry at the instance of IO.
PW5 HC Balwan Singh has deposed that on 09.08.2007 he was posted as MHC (M) at PS Nangloi and on that day SI Sunil Kumar had deposited the case property i.e. four pullandas sealed with the seal of SKR, two motor cycles one Discover and another was CBZ, one Santro bearing no. DL 8C G 4984, one mobile phone NOKIA 6600, one leather purse and one unsealed pulanda containing jamatalashi of the accused Ajeet, Davender Kumar, Bijender, Harish and Rohan and an FSL form, vide entry no. 5308 which is Ex.PW5/A. He has further deposed that on 18.08.2007 a motor cycle without number plate made Discover was given on superdari to one Ajay kumar vide Supurdginama. Further on the same day one mobile phone made NOKIA 6600 was given on superdari to one Shri Krishan. On 19.08.2007 SI Sunil Kumar also deposited a full Uniform including cap, raincoat, trousers, shirt vide entry no. 5339. He has further deposed that on 24.08.2007 Santro Car bearing no. DL8CG4984 was given on superdari to the owner Manoj Kumar and on 24.09.2007 four sealed pulandas were handed over to Ct. Ajay Kumar for taking the same to FSL Rohini vide road no. 334/21. SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 17 of 65 After depositing the same Ct. Ajay Kumar handed over to him the receipt dated 24.09.2007 which he had pasted on register no. 21 and the same was Ex.PW5/B. Further, on 18.09.2009 SI Sunil Kumar had taken one sealed pulanda for the TIP proceedings which was handed over to him on the same day after resealing the same with the seal of the court.
In his cross examination he has deposed that the signatures of the IO were not taken on the Register No. 19 at the time of deposit of the pulandas and case property. He has also deposed that the IO did not deposit his own seal with him and he was not aware if the uniform deposited by the IO on 19.08.2007 had already been seized by him on 09.08.2007. He has denied that the pulandas were tampered and manipulated by the IO. He has admitted that the uniform and other articles were deposited with him in unsealed condition. He denied that he was deposing falsely at the instance of the IO.
PW7 HC Surinder Singh has deposed that on 09.08.2007 he was posted as constable at PS Nangloi. On that day, he joined the investigation of this case with IO SI Sunil Kumar HC Subhash, Ct. Ajeet And Ct. Pradeep and went to Rani Khera Road. There they started checking the vehicles. While they were checking the vehicles, a motor cycle came and two boys were riding the same. It was stopped and checked by SI Sunil Kumar. On inquiry the name of one SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 18 of 65 rider was revealed as Harish and the name of other boy was Surinder. SI Sunil Kumar conducted their formal search. One katta each was recovered from both of them. SI Sunil handed over the custody of both the accused to HC Subhash and Ct. Ajeet. Another motor cycle and three boys were rididng the same and on the pointing out of both the accused it was stopped. That motor cycle was going towards Mundka Bus stand side. On enquiry the names of the boys was revealed as Bijender, Davender and Rohan. Accused Bijender was driving the motor cycle. Inquiries were made about motor cycle from them but they could not give any satisfactory answer. SI Sunil Kumar checked the engine and chasis number of the motor cycle and seized the same U/s 102 Cr. P.C vide seizure memo Ex.PW7/A bearing his signatures at point A. IO conducted the formal search of those three accused and recovered one katta each from accused Davender and Rohan. One mobile phone of make NOKIA 6600 having IMEI No. 3537, the full number, he does not remember was recovered from accused Bijender from his pocket. He has further deposed that SI Sunil Kumar seized the mobile phone by preparing seizure memo. SI Sunil Kumar also measured the katta and the live cartridge recovered from the possession of Rohan and the sketch of the same was Ex.PW7/B bearing his signatures at point A and thereafter the IO kept the katta and the live cartridge in a cloth piece and sealed the same with the seal of SKR and filled in FSL form and SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 19 of 65 seized the same by preparing seizure memo Ex.PW7/C bearing his signatures at point A. According to the witness, thereafter the IO checked the katta recovered from the accused Davender and on checking the same one live cartridge was found inside it. Thereafter, IO prepared the sketch of both on a piece of paper which is Ex.PW7/D bearing his signature at point and the IO kept the katta and the live cartridge in a cloth piece and sealed the same with the seal of SKR and filled in FSL form and seized the same by preparing seizure memo Ex.PW7/E bearing his signature at point A. According to the witness, all the five accused were arrested and their personal search was conducted by the investigating officer and arrest memo of accused Bijender, Rohan and Davender are Ex.PW7/F to Ex.PW7/H respectively bearing his signatures at point A. Their personal search memos were Ex.PW PW7/I to Ex.PW7/K respectively bearing his signatures at point A. I may observe that the accused Bijender was not present in the court being exempted and his identity was not disputed. The witness has correctly identified the accused accused Surinder, Davender and Harish in the court. According to the witness, on 19.08.2007 he again joined the investigations of that case along with the complaint and other police staff and IO and went to Kachchi Nahar Village Matan, Distt. Jhajjar, Haryana alongwith accused Surinder, Harish, Bijender and Rohan and the accused took out a polythene lying in between the bushes of "Keekar" containing rain SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 20 of 65 coat, cap and police uniform of complainant Shri Krishan and the same was identified by the complainant. Thereafter, the IO seized the polythene containing the raincoat, cap and police uniform vide seizure memo Ex.PW2/C bearing his signatures at point B. He has identified one rain coat, one cap and another polythene containing police uniform having name plate of Shri Krishan the same as recovered vide seizure memo Ex.PW2/C and the same is Ex.P2. He has also identified one katta and one test fired cartridge the same as recovered from accused Surinder and the same are Ex.P4 and P5. He has further identified that one katta and one test fired cartridge the same as recovered from accused Harish @ Kale as Ex.P6 and P7. He has further identified one katta and one test fired cartridge the same as recovered from accused Davender and the same were Ex.P8 and P9. He has also identified one katta and one test fired cartridge the same as recovered from accused Rohan and the same were Ex.P10 and P11. Witness has also identified motorcycle bearing No. DL 4S AY 7916, make Bajaj Discover the same was the one on which accused Surinder and Harish were riding and the same was Ex.P1.
With the permission of the court leading questions were put to the witness by the Addl. PP wherein the witness has deposed that IMEI No. of the mobile phone was 353798000856601. SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 21 of 65
In his crossexamination by Ld. defence counsel the witness HC Surinder has deposed that SI Sunil Kumar made the departure entry before leaving the police station on 09.08.2007. They reached at Rani Khera at about 12.00 noon and were checking the vehicles which they found suspicious which was done till 3.00 pm. He has deposed that the second motorcycle came after about 10 minutes of the first motorcycle and he is in a position identify this motorcycle on which the accused Bijender, Davender and Rohan were riding, if shown to him. He has deposed that they were checking the vehicles on the road and barricades had not been put. The witness is unable to tell the exact position of the members of the police party on the road but states that they all were in uniform. He has further deposed that the first motor cycle on which accused Surinder and Harish were riding was stopped by SI Sunil and the second motor cycle on which three accused was stopped by SI Sunil Kumar with the help of himself and Ct. Pradeep. Witness is unable to tell which accused was first interrogated by SI Sunil after stopping the first motorcycle and states that the first motorcycle was stopped on the left side of the road and they were not having any prior information about the accused persons coming on motor cycle. He has further deposed that it was his beat area but he does not remember the name of the Incharge of the beat area. He has denied that they had concocted a story of arrest of the accused persons or SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 22 of 65 that they were not arrested from Rani Khera Morh on the said motor cycles. He states that SI Sunil Kumar made enquiries from accused Surinder and Harish for about 10 minutes and thereafter the other three accused on other motorcycle were apprehended. He has further stated that SI Sunil conducted the formal search of accused Surinder, Harish, Bijender, Davender and Rohan and the details about motorcycle seized under section 102 Cr. P. C could not be found by contacting 100 number and hence that was seized U/s 102 Cr. P. C. He has further deposed that he along with SI Sunil Kumar and Ct. Pradeep were holding the accused Bijender while SI Sunil Kumar was having his custody. He has also deposed that accused Bijender was arrested at about 1.45 pm (Noon) and he has denied that the mobile phone was not recovered in his presence. He states that he signed on the seizure memo of mobile phone as a witness though when confronted with seizure memo of mobile phone, it was found that it did not bear his signatures. According to him, the proceedings were conducted at Rani khera More till about 3.00 pm. He has denied that Accused Davender was arrested from Mundka and voluntarily adds that he was arrested from Rani Khera Mor. He has also stated that SI Sunil Kumar conducted the personal search of accused Bijender. He has admitted that many vehicles passed through Rani Khera More where they had conducted the proceedings and he does not remember whether any vehicle was stopped and the riders SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 23 of 65 were asked to join the investigation or not. He has deposed that no site plan of Rani Khera More from where the accused were apprehended, was prepared and he does not remember as to whose personal search was conducted first in point of time and in last in point of time. He also does not remember from which pocket of accused Bijender, the mobile phone was recovered. He has denied that he was not present at Rani Khera More or that entire writing work was done while sitting in the police station or that no recovery was effected from the accused Bijender. He does not remember as to who was arrested first in point of time and last in point of time and he also does not recollect the colour of the mobile phone recovered from the possession of the accused Bijender. He has further denied that no recovery was effected from the accused Bijender and the mobile phone was planted upon him. He has also denied that all documentation was done while sitting in the police station and he had not joined any investigations due to which reason he is unable to given any details. He has denied that accused Bijender had been falsely implicated in that case. This witness has further denied that accused Davender, Surinder and Harish had been picked up from Sampla and falsely implicated in the present case. He has also denied that no recoveries of any katta was effected from the accused Davender, Surinder and Harish and that the same were planted upon those accused persons. He has also denied that the accused persons SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 24 of 65 had been shown to the complainant in the police station. He further denied that accused persons had been falsely implicated in the present case only to work out the same.
PW8 HC Subhash Chander has deposed that he was posted as Head constable at police station Nangloi. On that day he joined the investigations of this case with IO SI Sunil Kumar Ct. Surinder, Ct. Ajeet and Ct. Pradeep and went to Rani Khera Road, Mundka and there they were on vehicle checking duty on account of prior information with SI Sunil. He has deposed that while they were checking the vehicles, a motorcycle came and two boys were riding the same whose numbers on the number plate were illegible. The motor cycle was stopped by them and checked. On enquiry the name of one rider was revealed as Harish @ Kale and the name of other boy sitting on the pillion seat was Surinder. He has correctly identified the accused by pointing out towards them. He has also deposed that SI Sunil Kumar conducted their formal search and one katta of 12 bore was recovered from accused Surinder and one katta of 315 bore was recovered from accused Harish and both of the kattas were loaded. According to the witness, SI Sunil handed over the custody of the accused Harish to him and custody of accused Surinder to Ct. Ajeet. He further deposed that both these accused also disclosed during interrogation that their three associates had passed through this road ahead of them on a motorcycle and both SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 25 of 65 these accused took them towards the direction in which these boys had gone and they along with these boys went towards the direction. This witness has further deposed that after they had gone hardly 500 yds. ahead these boys pointed out a motor cycle coming out from the opposite direction on the wrong side of blue colour make CBZ on which three boys were riding. According to the witness, on the pointing out of both the accused the said motor cycle was stopped which motorcycle was going from Mundka side towards Bahadurgarh and they apprehended these three boys and duly interrogated by SI Sunil. He has deposed that during interrogation they disclosed their names as Davender, Bijender and Rohan. He has correctly identified accused Davender. The identity of accused Bijender is not disputed.
The witness HC Subhash Chander has further deposed that enquries were made from the accused regarding motorcycle on which they were riding and they disclosed that the said motor cycle CBZ had been snatched by them near Rohtak and the earlier motor cycle had been snatched by them from near Mundka. He has deposed that SI Sunil Kumar checked the engine and chasis number of the motorcycle make CBZ which the accused had disclosed had been snatched by them from Rohtak and seized the same U/s 102 Cr. P. C. vide seizure memo Ex.PW7/A. He has further deposed that SI Sunil also seized the motor cycle No. DL 4S AY 7916 make Discover vide seizure memo Ex. PW8/A bearing his signatures at point A and one SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 26 of 65 mobile phone of make NOKIA 6600 EMI number he did not remember was also recovered from the pocket of the shirt of accused Bijender. He has deposed that SI Sunil Kumar seized the mobile phone by preparing seizure memo Ex.PW8/B bearing his signatures at point A and thereafter SI Sunil Kumar thereafter measured both the kattas and the live cartridges recovered from the possession of accused Harish @ Kale and Surinder. The sketch of the Katta and the cartridge recovered from accused Surinder was Ex.PW8/C bearing his signatures at point A and katta and cartridge recovered from accused Harissh @ Kale was EX. PW8/D bearing his signatures at point A. IO converted these kattas into two separate pulandas with the help of cloth and thereafter sealed the same with the seal of SKR and filled up two separate FSL forms. This witness has further deposed that thereafter the IO recorded the disclosure statements of all the accused. The disclosure statement of Harish @ Kale is Ex.PW8/E bearing his signatures at point A. The disclosure statement of accused, Surinder was Ex.PW8/F bearing his signature at point A and disclosure statement of accused Rohan is Ex.PW8/G bearing his signature at point A, disclosure statement of Davender is Ex.PW8/H and accused Bijender is Ex.PW8/I bearing his signatures at point A. Thereafter, all the five accused were arrested and their personal search was conducted by the IO. The arrest memos of SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 27 of 65 accused Harish and Surinder are Ex.PW9/J and Ex.PW8/K respectively bearing his signatures at point A. Their personal search memos are Ex.PW8/L to Ex.PW8/M respectively bearing his signatures at point A. The witness has further deposed that on the same day i.e. 09.08.2007 pursuant to the disclosure of the accused they went to Jhajhar Haryana. According to the witness, the accused took them to petrol pump situated on the main road for the search of accused Ajeet and while they were standing at the petrol pump the accused pointed out towards a Santro car of grey colour coming from the bus stand side. On their pointing out the said vehicle was stopped and they identified the driver as their associate Ajeet who was in possession of the stolen car used in the incident of the snatching of motor cycle at Mundka and also of the articles snatched from the complainant in this incident. He has deposed that the accused Ajeet was interrogated and searched and from his search the I. Card, purse and other visiting cards were recovered which he disclosed had been snatched from the complainant in the present case. He has deposed that the IO seized the said articles vide memo Ex.PW8/N bearing his signature at point A and converted these articles into a pulanda with the help of cloth and duly sealed the same with the seal of SKR. The accused Ajeet was arrested vide memo Ex.PW8/O bearing his sign at point A and his personal search was conducted vide memo Ex.PW8/P bearing his signature at point A and his disclosure SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 28 of 65 statement Ex.PW8/Q bearing his signature at point A was recorded by the IO. He has deposed that the IO also seized the Santro car bearing No. DL 8CG 4984 vide memo Ex.PW8/R bearing his signature at point A. All the accused thereafter brought back to Delhi and after their medical conducted were produced before MM and remanded to JC. He has identified the case property i.e one motor cycle bearing DL 4S AY 7916 make Bajaj parked in the Rohini Court complex as Ex.P1 on which the accused Surinder and Harish were riding. He has also identified the case property i.e one katta and one test fire cartridge recovered from accused Surinder which were Ex.P4 and P5; one katta and one test fire cartridge recovered from accused Harish @ Kale which were Ex.P6 and P7; one brown colour empty purse recovered from accused Ajeet which was Ex.P12.
Leading questions were put by Ld. Addl. PP for the State to the witness regarding the IMEI number of the mobile phone make Nokia 6600 recovered from the possession of accused Bijender during which he had admitted that the IMEI no. of the mobile phone recovered from accused Bijender was 353798000856601.
In his cross examination by Ld. defence counsel this witness has deposed that there was secret information with SI Sunil regarding the accused persons. He deposed that the secret informer met the IO only but not in his presence and does not know if the IO had reduced into writing the secret information. They left the police SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 29 of 65 station at about 11 am and the informer was not with them. They reached at Rani Khera more at about 11.20 a.m. and started checking the vehicle after putting barricades on the road. He has deposed that the motor cycle came from the side of Bahadurgarh and the same was stopped by them after giving signal by the investigating officer at the spot at about 12 noon. He has also deposed that more than 100 vehicles passed through the road between 11.20 am to 12 noon and states that prior to the arrest of the accused no public person was asked to join the investigation by the IO however, after apprehending of the accused persons 34 persons were asked to join the investigation but they left the spot without disclosing their names and addresses. He has deposed that the 34 public persons or the passersby were on foot. He could not tell who was driving the second motorcycle on which three accused persons were apprehended. He has deposed that IO interrogated accused Harish first in time, however he did not remember who was interrogated last in time but states that the IO had made enquiries regarding the motorcycle at 100 number. He is unable to tell the colour of the mobile phone as well as of shirt and has deposed that the papers regarding the arrest of accused persons were prepared between 1 pm to 2 pm. He does not remember the exact time of arrest of accused Bijender. He also dose not remember who was holding the custody of accused Bijender at the time of conducting of the proceedings. He SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 30 of 65 has denied the suggestion that no recovery was effected from accused Bijender and the mobile phone was planted upon him. He has also denied the suggestion that all documentation was done while sitting in the police station and he had not joined any investigation due to which reason he was unable to provide any details. He does not remember who conducted the personal search of accused Bijender. He also does not remember the contents recovered from the personal search of the accused Bijender. He has denied the suggestion that accused Bijender had been falsely implicated in this case. The witness has also denied that accused Davender, Surinder and Harish had been picked up from Sampla and falsely implicated in the present case. He has denied that no recoveries of any katta was effected from the accused Davender, Surinder and Harish and that the same were planted upon these accused persons. He has denied that the accused persons had been shown to the complainant in the police station. He has denied the suggestion that accused persons had been falsely implicated in the present case only to work out the same.
PW9 Ct. Vijay has deposed that on 24.09.2007 he was posted at police station Nangloi and on that day he took four sealed parcels duly sealed with the seal of SKR from MHC (M) and took the same to FSL Rohini vide RC No. 334/21 and got deposited the same in the FSL office. He handed over the copy of receipt to MHC(M) after getting the same deposited in FSL, Rohini. No tampering was SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 31 of 65 done while same remained in his possession. His statement was recorded by IO U/S 161 Cr. P. C. In his crossexamination by Ld. defence counsel this witness has deposed that he was directed by the chitta munshi to take the pullandas to the FSL office which directions were oral. IO did not tell him directly to take the pullandas but he was communicated this direction by the chitta munshi. He has denied the suggestion that there were no such directions and the entire record with regard to taking of the pullandas to the FSL had been created later on.
PW10 Ct. Ravinder Kumar has deposed that he was working as chitta munshi at police station Punjabi Bagh and had brought the duty roaster of PS Staff dated 06.08.2007 and 07.08.2007, copy of which was EX PW 10/A running into two pages. During his crossexamination by Ld. defence counsel this witness has admitted that there was over writing in the column of date at point A on the duty roaster of both the dates.
During proceedings it was observed by the court that there is over writing on the dates of all the pages from 02.8.2007 till 08.08.2007. 02.08.2007 has been made into 03.08.2007, 03 has been made into 04 by putting white fluid, 04 has been made as 05 by putting white fluid, white fluid has been put into 05 which has been made into 06, 06 has been made into 07 by overwriting and 07 has been made into 08. There appears to be a general mistake in the dates which has been corrected. This being so, this will not prejudice the case of the prosecution.
SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 32 of 65
The witness has admitted that he was not the chitta munshi at that time when the aforesaid entries were made and has voluntarily stated that he had only brought the official record.
PW13 SI Sunil Kumar has deposed that on the intervening night of 06/07.08.2007 he was posted as SI at Police Station Nangoli. On that day on the receipt of DD No. 52A he along with Ct. Sunil reached at Main Rohtak Road in front of Abhinandan Vatika, Nangloi, Delhi where one Shri Kishan had met them. He recorded his statement vide Ex.PW2/A attested by him and bearing his signature at point A. He prepared rukka EX PW 13/A bearing his signature at point A. He handed over the rukka to Ct. Sunil for getting the case registered. He deposed that Ct. Sunil came to the spot and handed over the copy of FIR and original rukka to him. He has also deposed that Shri Kishan went to Maharaja Agarsain Hospital for medical aids and he received his MLC from Maharaja Agarsain Hospital and recorded his supplementary statement U/S 161 Cr. P.C. and added Section 395 IPC in this case. He also prepared site plan which was Ex.PW2/B bearing his signature at point A at the instance of complainant Shri Kishan. This witness has further deposed that on 09.08.2007 on the receipt of secret information he along with staff reached at Rani Khera More near Mundka and started checking of vehicles. In the meantime one motorcycle with an illegible registration number on the number plate came and two boys namely SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 33 of 65 Harish @ Kalli and Surinder had come on the said motorcycle. He deposed that during their formal search one desi katta was recovered from accused Surrender from his right dub of the pant and one desi katta was recovered from the dub of lower of accused Harish @ Kalli. He deposed that both the katta were opened and one live cartridge were recovered from each of them. On interrogation he came to know that the said motorcycle was robbed from the area of Nangloi. On detail interrogation both the accused persons have disclosed that their three other associates were present on motorcycle in area of Swaran Park, Mundka. He prepared sketch of both the kattas and recovered cartridges vide memo Ex.PW8/C and Ex.PW8/D bearing his signature at point B. He converted the same into parcels and sealed the same with the seal of SKR. The aforesaid parcels were taken into possession vide separate seizure memos Ex.PW8/A bearing his signature at point B and the aforesaid motorcycle was also taken into possession vide the same memo. He arrested both the accused persons in this case vide memos Ex.PW8/J and Ex.PW8/K bearing his signatures at point B and conducted their personal search which was Ex.PW8/L and Ex.PW8/M bearing his signatures at point B. According to the witness, thereafter both the accused persons took them to Swaran Park, Mundka where at the instance of these accused one motorcycle CBZ was stopped and three boys were apprehended. Their names were Vijender, Rohan Arora SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 34 of 65 and Davender. The aforesaid motorcycle was taken into possessions vide Ex.PW7/A bearing his signature at point B. The aforesaid persons were also formally searched and one desi katta was recovered from the right pocket of accused Davender. One desi katta was recovered from accused Rohan and one NOKIA mobile phone was recovered from accused Bijender which was found robbed in the present case. The katta recovered from Davender was found containing one live cartridge and the katta recovered from accused Rohan was also having live cartridge. He prepared the sketch of both the kattas vide Ex.PW7/D and Ex.PW7/B both bearing his signatures at point B. The aforesaid kattas were thereafter converted into parcels and sealed the same with the same seal and taken into possessions vide memo Ex.PW7/C and Ex.PW7/E in respect of accused Rohan and Davender respectively bearing his signatures at point B. The said mobile phone recovered from accused Bijender was also taken into possession vide seizure memo Ex.PW8/B bearing his signatures at point B. He thereafter arrested the aforesaid accused persons namely Bijender, Rohan Arora and Davender vide memos Ex.PW7/F, Ex.PW7/G and Ex.PW7/H bearing his signatures at point B and they were personally searched vide memos Ex.PW7/K, Ex.PW7/J and Ex.PW7/I bearing his signatures at point B. They were also interrogated and their disclosure statements were recorded SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 35 of 65 vide memo Ex.PW8/G, Ex.PW8/H and Ex.PW8/I in respect of accused Rohan Arora, Davender and Bijender, bearing his signatures at point B. Disclosure statement of Harish @ Kali and Surinder was also recorded which are Ex.PW8/E and Ex.PW8/F bearing his signatures at point B. Thereafter all the accused persons were brought to the police station.
The witness has further deposed that, one of the accused persons namely Davender took them near petrol pump in a gali, Jhajjar and pointed out towards the Santro car stationed in street with number plate as the same car which was used by these accused persons in the crime. The number plate was reflecting the number as DL 8CG 4984 and one Ajeet @ Master was present in the car and the said car was taken into possession vide seizure memo Ex.PW8/R bearing his signatures at point B. He has deposed that the aforesaid car was formally searched but nothing incriminating was recovered from the said case. The said Ajeet @ Master was apprehended and his formal search was conducted and one purse, Identity card of complainant Ct. Shri Kishan were recovered and sealed with the seal of SKR and taken into possession vide seizure memo Ex.PW8/N bearing his signatures at point B. The said Ajeet, accused Davender and they all came back to Delhi along with the car. He further deposed that all the aforesaid five accused persons were produced in the concerned court in muffled face and were sent to judicial custody. SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 36 of 65 He has deposed that accused Ajeet @ Master was interrogated and arrested in this case vide memo Ex.PW8/O and personally searched vide memo Ex.PW8/P. He recorded the disclosure statement of accused Ajeet @ MASTER vide Ex.PW8/Q bearing his signatures at point B. He also recorded statement of witnesses U/s 161 Cr. P. C. On the next day accused Ajeet @ Master was produced before the court. He thereafter moved an application for getting the TIP of accused Devenber, Surinder, Harish and Rohan Arora which was allowed and thereafter they were put for their TIP but all have refused to participate. Their Test Identification Parade proceedings are Ex.PW13/C, Ex.PW13/D, Ex.PW13/E and Ex.PW13/ F. According to the witness, on 18.08.2007 four accused persons namely Bijender, Harish @ Kali, Surinder and Rohan Arora were taken on police remand and they were interrogated thoroughly. He has deposed that on 19.08.2007 all the above said four accused took them to Village Matan, Distt. Jhajjar, Haryana, near Badro (Canal) and all the four accused persons pointed out a place near bushes where they had concealed one polythene containing Uniform, Barsati and one cap. They got recovered the said polythene containing the said articles. He took the aforesaid articles into possession vide seizure memo Ex.PW2/C bearing his signatures at point C. According to him, at that time complainant Shri Kishan was also present who had identified the aforesaid articles as belonging to SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 37 of 65 him. The signature of Shri Krishan was taken on the said memo at point A. All the four accused persons were brought to Delhi and they lead them to the place of incident. He thereafter prepared the memo of pointing out of the place of occurrence vide Ex.PW13/G, Ex.PW13/H, Ex.PW13/I to Ex.PW13/J bearing his signature at point A. The witness has further deposed that the complainant identified accused Harish @ Kali, Rohan Arora and Surinder. He recorded his supplementary statement regarding the identification and other witnesses. Case property was deposited in the Malkhana of the police station. He has further deposed that on 18.09.2007 the case property i.e. purse was put for TIP and the complainant identified the purse as belonging to him vide TIP proceedings Ex.PW13/A. He sent the exhibits to FSL for expert opinion through Ct. Vijay vide RC No. 334/21. He collected the sanction U/s 39 of Arms Act against the accused persons namely Davender, Surinder, Harish @ Kali and Rohan Arora vide Ex.PW13/K, Ex.PW13/L, Ex.PW13/M and Ex.PW13/N. Thereafter he collected the result from FSL which was Ex.PW13/O which was alongwith the covering letter Ex.PW13/P and submitted the same in the court vide his application Ex.PW13/Q. He submitted the charge sheet before the court after completing the investigation.
SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 38 of 65
In his crossexamination by Ld. defence counsel, he deposed that Shri Kishan had gone to Maharaja Aggarsen Hospital of his own. He collected the MLC from Maharaja Aggarsen Hospital before sending the rukka. He went to Maharaja Aggarsen Hospital himself. He further deposed that on 09.08.2007 after he received the secret information, he asked 34 persons at Rani Khera Road to join the police party but they refused and left away without telling their names and addresses. He has admitted that there was a petrol pump in the vicinity. He did not join any employee of the petrol pump in the police party. He has denied that he did not join any public witness since there was no secret information and accused Harish, Rohan, Surinder, Davinder and Bijender were already in their custody and they have falsely implicated them in the present case. He further denied that the accused Davinder was apprehended from Badli, from his sister's house, kept in the police station and a false case had been foisted upon him. He has further denied that the accused Bijender had been lifted from village Gupania, District Jhajjar, Haryana from his house and falsely implicated in the present case or that the accused Surinder and Harish were lifted from the market of Sampla, District Rohtak, Haryana and falsely implicated in the present case. He has denied that all the writing work was done in the police station and not at the spot or that the accused Bijender, Rohan, Surinder, Davinder and Harish did not make any disclosure statement and the SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 39 of 65 said statements were recorded of his own. He has further denied that the desi kattas have been planted on the accused Surinder, Davinder, Harish and Rohan. He has also denied that no mobile phone was recovered from the possession of the accused Bijender and the same had been planted upon him. He has admitted that accused Davinder never took them at petrol pump in Jhajjar and pointed out the Santro Car and states that it was the accused Surinder who took them to the petrol pump at Jhajjar and got recovered the said Santro. The name of Davinder as mentioned in his examination in chief dated 21.02.2011 was a typographical error and in fact it was Surinder who took them there. He has further denied that the name of Davinder was mentioned by him since there was no recovery as alleged and he was correcting his previous statement after going through the record. He has denied that he has deposed falsely.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
After completing the prosecution evidence, statement of accused under Section 313 Code of Criminal Procedure were recorded wherein all the incriminating evidence was put to them which they have denied. Accused did not lead any defence evidence.
Accused Davender has stated that he is innocent and has been falsely implicated by the police only to workout the present case. He has stated that he was lifted by the police from Badli. SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 40 of 65 According to him he has nothing to do with the alleged allegations and that nothing was recovered from his possession or at his instance and that the case property has been planted upon him.
Similarly, accused Bijender has deposed that he is innocent and has been falsely implicated by the police in the present case just to work out the same. He has stated that he was lifted by the police from his residence at village Bupania. According to him he has nothing to do with the alleged allegations. He has also stated that nothing was recovered from his possession or at his instance and the case property has been planted upon him.
Accused Surinder has also deposed that he has been falsely implicated in this case. He has stated that he was lifted by the police from Sapla, Distt. Rohtak. According to him he has nothing to do with the incident and nothing was recovered at his instance or from his possession and that the case property has been planted upon him by the police to work out the present case.
Accused Harish has stated that he is innocent and has been falsely implicated by the police in the present case just to work out the same. He has stated that he was lifted by the police from Sapla, Distt. Rohtak where he had gone to visit his relative. According to him he has nothing to do with the alleged allegations and nothing was recovered from his possession or at his instance and that the case property has been planted upon him. SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 41 of 65 FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel appearing on behalf of the accused. I have also considered the testimonies of the various witnesses examined by the prosecution and have gone through the written memorandum of arguments filed by the parties. My findings are as under:
Identity of the accused:
In so far as the identity of the accused is concerned, it is evident that the complainant PW2 Shri Kishan has identified all the accused Davender, Surinder, Bijender and Harish in the court. He in his deposition in the court has stated that on 19.8.2007 when had gone to Police Station Nangloi to collect his mobile phone, he found the accused Harish, Rohan and Surinder present in the police station and identified them as the persons amongst the assailants who had stopped his motorcycle and robbed him. According to him it was the accused Harish and Surinder who were having a desi katta each on the date of occurrence. Further, in his testimony before the court, he has identified the accused Davender both by pointing out and also by name and according to him. Earlier on 20.8.2007 he had identified the accused Davender outside the Court No. 10, Rohini Courts before the investigating officer. The identity of accused Bijender was not SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 42 of 65 disputed when this witness was examined as he was not present in the court and had been exempted through his counsel. In view of the above, I hereby hold that the identity of the accused Davender, Surinder, Harish and Bijender has been successfully established by the prosecution. (Case against the accused Rohan Arora has abated on account of his demise and the accused Ajit @ Master had already been discharged vide order of the Ld. Predecessor dated 28.2.2008.) Allegations against the accused:
The allegations against the accused are that on the intervening night of 6th & 7th August, 2007, the complainant Shri Kishan posted as constable with the Delhi Police at Police Station Punjabi Bagh was returning to his house at Bahadurgarh from Delhi at about 1:30 AM (night) after finishing his duty on motorcycle bearing No. DL4SAY7916 make Bajaj Discover belonging to his brotherinlaw (Jija) and when he reached near Abhinandan Vatika, Mundka, one Santro car pushed him right hand side verse of the road and make him stop his motorcycle, and four boys alighted from the siad Santro car out of the five occupants and started beating with fist and leg blows and snatched his mobile phone make Nokia bearing no. 9868704850 from his pocket and also removed his purse containing his identity card, some papers and Rs.3000/ in cash. According to SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 43 of 65 PW2 Shri Kishan, two of the boys were having desi katta and after snatching his motorcycle they ran away from the spot whereas the other three boys boarded the car and ran away towards Bahadurgarh. Further, according to the complainant Shri Kishan, the registration number the Santro Car was DL8CG4984 and it was of chocolate colour. He has further testified that his motorcycle which was taken away by the accused which motorcycle was also containing his uniform, cap and raincoat. According to him during this incident, he had sustained certain injuries and he thereafter went to nearby Petrol Pump and made a call at 100 number on which the police came to the spot and recorded his statement.
Further, the complainant PW2 Shri Kishan has proved his statement earlier made to the police which is Ex.PW2/A and the site plan Ex.PW2/B. He has identified the accused Davender, Surinder, Bijender and Harish in the court and specifically pointed out towards the accused Harish and Surinder as the boys who were armed with desi kattas. According to him, on 19.8.2007 after apprehension of accused, he along with investigating officer and accused Rohan Arora (expired), Harish, Surinder and Bijender went to village Matan, Kachi Nehar, Distt. Jhajhar, where accused had pointed out the place near Kachi Nehar from where they took out the police uniform, cap and rain coat lying in polythene which are identified by the complainant as Ex.PW2/C. He has also identified his motorcycle Ex.P1. SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 44 of 65
Further, the mobile phone make Nokia 6600 bearing IMEI No. 353798000856601, had been released to the complainant by the court on superdari which mobile phone he has misplaced on 28.2.2010 in the Central Market, Punjabi Bagh in respect of which he has placed on record the copy of NCR No. 300/10 registered at Police Station Punjabi Bagh as Ex.PW2/D. The uniform recovered at the instance of the accused also bears the name plate of the complainant as Shri Kishan which the witness has correctly identified in the court as Ex.PW2.
The complainant has been cross examined at length but nothing much has come of the same. A suggestion has been made to him by the Ld. defence counsel that the entire case had been fabricated which he has denied. It has also been suggested to him that in his 100 number call he had given numbers of two cars. The witness has stated that he does not remember if he had told number of the car to be 4284 or 4849 when he made 100 number call. He also does not recollect if he stated about the colour of the car or not. He has denied the suggestion that he was not on duty on the date of incident. Initially, the witness PW2 Shri Kishan has stated that he had gone to Maharaja Agarsen hospital on his own but later he deposed that after the incident he called his brotherinlaw Ajay to the spot who took him to the Maharaja Agarsen Hospital. He has denied the suggestion that no injuries were received by him. SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 45 of 65
Ld. defence counsel has vehemently argued that there are material discrepancies in the testimonies of PW2 Shri Kishan who had earlier while making 100 number call given two numbers of the car i.e. 4284 and 4849, whereas at the time of lodging the FIR the number of the car has been given as 4984 and no explanation is forthcoming for the same. It is pointed out that even the colour of the car as stated by the complainant in the FIR as well as in his statement before the court is Chocolate colour, while the car seized by the investigating officer is of gray (slight salety) colour. It is pointed out that the number plate of the car had been seized on 24.8.2007 whereas the car was seized on 9.8.2007 and that there is no witness to the seizure of the number plate which shows that the investigating officer has managed the number plate of the car later on just to tally the number of the car with the car mentioned in the FIR. It is further point out that the PCR call had been made at 2:24 AM vide DD No. 52 A and then the rukka could only be sent by the investigating officer thereafter, whereas PW1 HC Vijender has stated that he had received the rukka at about 1:30 AM.
Ld. counsel has also argued that admittedly there is no departure entry / ravangi made by Ct. Shri Kishan at Police Station Punjabi Bagh after he was allegedly relived from duty and returning home apparently showing that no such incident had taken place and it was falsely created.
SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 46 of 65
I have duly considered the submissions made by the Ld. defence counsel and the grounds raised. At the very outset, I may observe that the fact that Ct. Shri Kishan was posted at Police Station Punjabi Bagh is not disputed. What is disputed is the fact whether he was relieved from duty and was returning home from duty on the intervening night of 6th and 7th August, 2007 or not. No doubt, it is obligatory for a police officer to make an entry with regard to his movements in the daily diary register, yet merely because the ravangi / departure is not present, does not prove that the incident was created. Had this been the intention of the investigating agency to create a false incident, then I am sure that they are intelligent enough to have done so after competing the bare minimum formalities including filling up of the departure entries of the complainant which has not happened. Non mentioning of the departure / revangi could be due to inadvertence or for any other reason for which it is open to the department to take action against its official for the lapse but I do not find it a convincing enough reason to raise a suspicion of doubt on the incident. Why will a police official posted at Punjabi Bagh get an offence created in another Subdivision i.e. Nangloi. Moreover, the PCR call record coupled with the subsequent arrest of the accused and recovery, points towards the genuineness of the offence. Rather, on the other hand since the victim in the case was a police officer, it is all the more reason why investigations were seriously taken up and SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 47 of 65 not in a routine manner as is done in cases of ordinary victims and it is perhaps for this reason that the apprehension and arrest of the accused and recovery of the stolen motorcycle and other articles was prompt, since it was the department's reputation which was at stake before the public.
Further, with regard to the discrepancy in the time of registration of FIR, I may observe that the oral testimony of HC Vijender PW1 is liable to he discarded to this extent since the documentary evidence on record i.e. PCR call record shows the time as 2:24 AM which was recorded vide DD No. 52A at Police Station Nangloi, (Ref.: Section 92 of Indian Evidence Act, 1872). Therefore, under these circumstances the rukka could have been sent by the investigating officer only thereafter and not before 2:24 AM that.
Further, as per the allegations, the stolen motorcycle was recovered from the possession of accused Harish and Surinder and the stolen mobile phone was recovered from the possession of accused Bijender, and the polythene containing the dress of the complainant was got recovered by the accused pursuant to their disclosures and pointing out; which recoveries have been duly proved in accordance with law.
It is therefore evident that in so far as the accused Davender, Harish, Surinder and Bijender are concerned, it stands SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 48 of 65 established that the accused Harish and Surinder were the boys who were armed with desi kattas and had shown the fire arms to the victim/ complainant while the accused Davender, Harish and Surinder robbed the complainant of his belongings i.e. motorcycle, mobile phone and purse containing cash and Identity card. Recovery of stolen Motorcycle & Mobile Phone make Nokia 6600:
The case of the prosecution is that on 9.8.2007 while SI Sunil Kumar along with police party was on vehicle checking duty at Rani Khera Mor Road near Mundka, they noticed two boys riding on a motorcycle make Bajaj Discover who were stopped and on inquiry by SI Sunil Kumar and their identity was revealed as the accused Harish @ Kali and Surinder and on their checking one desi katta each were recovered from their possession and they also disclosed that they had robbed the said motorcycle from Nangloi area and thereafter the said motorcycle was taken into possession by the police vide memo Ex.PW8/A. Thereafter, the accused Harish and Surinder took the police party to Swaran Park, Mundka where at their instance one motorcycle CBZ was stopped by the police and three boys whose name later on were revealed as Bijender, Rohan Arora and Davender, were also apprehended and on inquiry regarding the motorcycle, no satisfactory answer was received and thereafter the motorcycle was also seized by the police vide memo Ex.PW7/A. Further, when the SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 49 of 65 accused Bijender was searched one mobile phone was recovered from the pocket of his shirt which mobile phone was also seized vide memo Ex.PW8/A and it was disclosed by the accused that the said mobile phone was robbed by them earlier in the intervening night of 6th & 7th August, 2007.
Thereafter, during investigations on 19.08.2007, the accused Rohan (now deceased), Harish, Surinder and Bijender pursuant to their disclosure statements took the police party and the complainant to village Matan, kachi nahar, Distt. Jhajhar (Haryana) from where the accused pointed out towards the kachi nahar and got recovered the police uniform, cap and raincoat lying in a polythene. The complainant Shri Kishan had identified the same as his own and the investigating officer seized the same vide pointing out memo and seizure memo Ex.PW2/C. On 20.08.2007 this witness had identified the accused Davender outside the Rohini court complex.
Thereafter, during investigations, the accused Davender took the police party to near a Jhajjar, Haryana when according to the investigating agency the accused Ajit (already discharged) was apprehended while he was in possession of the stolen car used in the incident of robbery of the motorcycle at Mundka, and on search of the car, one purse, identity card of the complainant were recovered which were taken into possession by the investigating officer vide memo Ex.PW8/N in the present case. The Ld. predecessor of this SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 50 of 65 court vide order dated 28.2.2008 had already discharged the accused Ajit on the ground that the arrest memo of accused Ajit reflects the arrest at 6:15 PM at Jhajjar whereas the recovery memo of the Santro car reflects his apprehension along with the car at Jhajjar and his first remand on the same i.e. 9.8.2007 reflects the presence of APP thereby showing that the accused were produced in the court and not at the residence of Ld. MM i.e. before 5:00 PM and therefore the accused could not have been present at Jhajjar at 6:15 PM and hence the recovery made at the instance of Ajit raised serious doubt at the authenticity of the prosecution case.
In so far as the motorcycle bearing No. DL 4SAY7916 make Bajaj Discover is concerned it was recovered from the possession of accused Harish and Surinder while they were riding on the same and were stopped by the police party. PW6 Ajay Kumar who is the brotherinlaw / Sala of the victim / complainant has duly identified the same as belonging to him. He has also proved that it has been registered in his name whereas his brotherinlaw (Jija) i.e. the present complainant Shri Kishan was using the same. He has further proved that on 6th & 7th August, 2007 his brotherinlaw i.e. Shri Kishan informed him that four - five boys had come in a Santro Car and robbed him of the said motorcycle from Mundka Rohtak Road. He has placed on record the copy of RC of the motorcycle which is Ex.PW6/A. SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 51 of 65 I have duly considered the testimony of Ajay Kumar (PW6) and the RC of the same proving that he is the registered owner of the same. He is not an employee of the Delhi Police and thee is no reason from him to depose falsely. His version independently corroborates the testimony of the complainant and the extend that he was in formed by the complainant about the robbery of the motorcycle by 4 to 5 boys in a Santro Car.
In view of the above, I hold that in so far as the recovery of the motorcycle make Bajaj Discover from the possession of accused Harish and Surinder is concerned, the same has been proved beyond reasonable doubt. Further, in so far as the mobile phone make Nokia 6600 bearing no. 9868704850 and bearing IMIE No. 353798000856601 is concerned, the same has not been produced in the court as the complainant has lost the same in respect of which he has placed on record the copy of NCR lodged at Police Station Punjabi Bagh which is Ex.PW2/D. In this regard, I may observe that in his first statement given to the police the victim Ct. Sri Kishan had given the details of the mobile phone i.e. Make - Nokia 6600, No. 9868704850 ad IMEI No. 353798000856601. Merely because the mobile phone has been subsequently misplaced would be no reason to suspect the recovery of the same. It stands established from the seizure memo of the mobile phone Ex.PW8/B that the IMEI No. of the mobile phone recovered from the accused Bijender tallies with SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 52 of 65 the IMEI No. given by the complainant in his first complaint to the police at the first instance and the accused Bijender has not been able to give any explanation with regard to the possession of the recovered mobile. Therefore, I hold that the recovery of the mobile phone belonging to the complainant from the possession of the accused Bijender stands established.
FINAL CONCLUSION:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 53 of 65 except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officer.
The identity of the accused Davender, Surinder, Bijender and Harish has been established. It has been established that on the intervening night of 6/7.08.2007, the complainant Shri Kishan after finishing his duty as constable in Delhi Police being posted at Police Station Punjabi Bagh was going to his house at Bahadurgarh on motorcycle bearing registration No. DL 4SAY7916 make Bajaj Discover and when he reached near Abinandan Vatika main Rohtak Road, a Santro Car came from the back side and stopped his motorcycle and four boys alighted from the car and robbed his motorcycle, mobile phone and purse. Further, the accused Davender, Bijender, Harish and Surinder have been identified in the court as the boy who had committed the robbery. The accused Harish and SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 54 of 65 Surinder have been identified by the complainant as the persons who were having fire arms which they had shown to him. The recovery of the motorcycle make Bajaj discover from the possession of accused Harish and Surinder has also been proved. The recovery of the police uniform at the instance of the accused Rohan, Surinder, Harish and Bijender has also been proved. However the recovery of the mobile phone make Nokia 6600 from the possession of accused Bijender has not been established.
There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by by each other and the witness of the prosecution have been able to built up a continuous link.
Technically, in so far as the provisions of Section 411 Indian Penal Code are concerned, in cases of robbery where the accused are identified the ingredients of Section 411 IPC are covered under the provisions of Section 392 Indian Penal Code and no separate conviction is required to be imposed for the said charge.
In view of the above discussions, I hereby hold the accused Davender guilty of the offence under Section 392/34 Indian SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 55 of 65 Penal Code; the accused Surinder Kumar @ Nanhe and Harish @ Kale are held guilty for the offence under Section 392 read with Section 397/34 Indian Penal Code and the accused Bijender is held guilty for the offence under Section 411 Indian Penal Code. All the accused are accordingly convicted.
Be listed for arguments on sentence on 20.7.2011.
Announced in the open court (Dr. KAMINI LAU) Dated: 13.7.2011 ASJ (NW)II: ROHINI SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 56 of 65 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI. Sessions Case No. 881/2007 Unique Case ID: 02404R0576142007 State Vs. 1. Davender S/o Bhim Singh R/o Village Gwalda, Post Office: Ishrana Distt. Panipat, Haryana. (Convicted) 2. Surinder Kumar @ Nanhe S/o Baljeet R/o VPO : Mattan PS: Bahadurgarh Distt.: Jhajjar, Haryana (Convicted) 3. Bijender Lochab S/o Randhir Singh R/o Village & PO : Bupania PS: Bahadurgarh Distt.: Jhajjar, Haryana (Convicted) 4. Harish @ Kale S/o Jagdish R/o Village & PO : Bupania PS: Bahadurgarh Distt.: Jhajjar, Haryana (Convicted) SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 57 of 65 5. Rohan Arora S/o Shri Krishan R/o 219/7, Vivekanand Nagar, Near Hanuman Properties PS: Bahadurgarh Distt.: Jhajjar, Haryana (Already expired) 6. Ajit @ Master S/o Ran Singh R/o VPO : Barani, PS: Beri, PS: Bahadurgarh Distt.: Jhajjar, Haryana (Discharged on 28.2.08) FIR No.: 637/2007 Under Section: 392/397/411/34 Indian Penal Code. Police Station: Nangloi Date of Conviction: 13.7.2011 Arguments heard on: 20.7.2011 Date of sentence: 20.7.2011 APPEARANCE: Present: Sh. Taufique Ahmed, Addl. Public Prosecutor for the State.
Convicts Davender, Surinder, Bijender and Harish in judicial custody.
Sh. Vijay Dalal Advocate for the convict Bijender. SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 58 of 65 ORDER ON SENTENCE:
Vide my detailed judgment dated 13.7.2011, the accused Davender has been held guilty of the offence under Section 392/34 Indian Penal Code; the accused Surinder Kumar @ Nanhe and Harish @ Kale have been held guilty for the offence under Section 392 read with Section 397 Indian Penal Code and the accused Bijender Lochab has been held guilty for the offence under Section 411 Indian Penal Code.
As per the allegations on the intervening night of 6th & 7th of August, 2007 at 1:30 AM, near Abhinandan Vatika, Main Rohtak Road, Delhi, the accused Davender, Surinder, Harish and Rohan Arora in furtherance of their common intention along with their co accused Rohar Arora (already expired) and Ajit @ Master (discharged) robbed Ct. Shri Kishan of his mobile phone, motorcycle and purse containing cash and Identity Card and while doing the aforesaid robbery the accused Harish and Surinder used deadly weapon i.e. country made pistol. It is further alleged that the accused Surinder and Harish were found in possession of stolen motorcycle make Bajaj bearing No. DL4 SAY 7916 and the accused Bijender was found in possession of stolen Nokia 6600. On the basis of the testimonies of various witnesses examined by the prosecution, including the complainant/ victim this court vide detailed judgment SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 59 of 65 dated 13.7.2011, the accused Davender has been held guilty of the offence under Section 392/34 Indian Penal Code; the accused Surinder Kumar @ Nanhe and Harish @ Kale have been held guilty for the offence under Section 392 read with Section 397 Indian Penal Code and the accused Bijender Lochab has been held guilty for the offence under Section 411 Indian Penal Code.
I have heard arguments on the point of sentence. The convict Davender is a young boy aged about 25 years having a family comprising of father (farmer), mother (housewife) and one brother. He is fifth class pass and is a farmer by profession. He has already remained in judicial custody for a period of two years, nine months and twenty two days. The convict Davender is involved in the following cases:
1. FIR No.106/08, under Section 302/120B, Police Station Jafarpur Kallan.
2. FIR No.273/03, under Section 392/397 IPC, Police Station Udaypur.
3. FIR No.191/07, under Section 392 IPC, Police Station Sadar Bahadurgarh.
4. FIR No.176/07, under Section 392 IPC, Police Station Gannaur.
SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 60 of 65
5. FIR No.590/08, under Section 302/432/323/148/149 IPC, Police Station Jhajjar (Haryana).
Convict Surinder is also a young boy aged about 25 years, having a family comprising of father (labour), mother (labour), two brothers and two sisters (one of whom is married). He is a matriculate and is an electrician by profession. He is also involved in three other cases i.e. FIR No. 191/07, under Section 392 IPC, Police Station Sadar Bahadurgarh; FIR No.176/07, Police Station Gannaur, under Section 382 IPC and FIR No.273/07, under Section 392/397/412 IPC, Police Station Gurgaon. The convict Surinder has already remained in judicial custody for one year, eleven months and six days.
Convict Bijender is a young boy aged about 27 years, having a family comprising of father (farmer), mother (housewife), wife and one son aged three months. He is a matriculate and is a Driver by profession. He is also involved in two other cases i.e. FIR No.273/07, under Section 392/397/412 IPC, Police Station Gurgaon and FIR No. 196/09, Police Station Kanjhawala under Section 323/325 IPC. He has already remained in judicial custody for about one month and eight days.
SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 61 of 65
Convict Harish is also a young boy aged about 24 years, having a family comprising of father (labour), mother (housewife), two brothers and two sisters (one of whom is married). He is totally illiterate and is a Labour by profession. He is also involved in two other cases i.e. FIR No.273/07, under Section 392/397/412 IPC, Police Station Gurgaon and FIR No.191/07, under Section 392 IPC, Police Station Sadar Bahadurgarh. He has already remained in judicial custody for about two years, nine months and twenty days.
Ld. Counsel appearing on behalf of the convicts has vehemently argued that all the convicts are all young boys and are helping hands of their families. It is pointed out that though the convicts are involved in other cases yet they have not been convicted in any other case so far and they all have been acquitted in case bearing FIR No.273/07, under Section 392/397/412 IPC, Police Station Gurgaon. He requests that a lenient view be taken against the convicts. On the other hand, Ld. Addl. PP for the State has prayed that a strict punishment be awarded to the convicts keeping in view the allegations involved. He has argued that the convicts had robbed the victim who is a police official thereby showing scant respect to law due to which reason they do not deserve any leniency.
I have considered the rival contentions. Law and order situation has been deteriorating in the country and has worsen in the recent past. Instances of young persons getting involved in criminal SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 62 of 65 activities of robbing innocent persons by putting them under threat of death, are also on rise. Trigger friendly criminals unhesitatingly and indiscriminately use dangerous firearms on helpless victims who may or not offer any resistance thereby spreading terror in the society and adversely affecting social order and the faith of people in the system.
No leniency can be shown to persons who have no respect for life. Anyone who does not hesitate to take the law into his hands for pure monetary reasons does not deserve any leniency and any indulgence by the court, under these circumstances, can be misplaced. However, it is evident that all the convicts are young boys and at the time of incident they were in their early twenties. Though they are involved in other cases but they have not been convicted in any other case so far. The punishment prescribed for the offence under Section 392 Indian Penal Code is Rigorous Imprisonment for a term which may extend to Ten Years and fine and for the offence under Section 397 Indian Penal Code Rigorous Imprisonment not less than Seven Years. Therefore, in view of the aforesaid, I award the following sentences to the convicts:
The convict Davender is sentenced to Rigorous Imprisonment for a period of three years and fine to the tune of Rs. 2,000/ for the offence under Section 392 Indian Penal Code. In default of payment of fine the convict shall undergo Simple SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 63 of 65 Imprisonment for a period of two weeks.
In so far as the convict Surinder Kumar @ Nanhe is concerned, he is sentenced to Rigorous Imprisonment for a period of Seven years and fine to the tune of Rs.2,000/ for the offence under Section 392 read with 397 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of two weeks.
Further, I sentence the convict Harish Kumar @ Kale to Rigorous Imprisonment for a period of Seven years and fine to the tune of Rs.2,000/ for the offence under Section 392 read with 397 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of two weeks.
In so far as the convict Bijender Lochab is concerned, he is a young boy and the only allegations against him are of recovery of mobile phone belonging to the victim. He has no other case against him except a case of similar nature under Section 323/325 IPC bearing FIR No. 196/09 Police Station Kanjhawla which is still pending trial and has been acquitted in case FIR No.273/07, under Section 392/397/412 IPC, Police Station Gurgaon. Therefore, under these circumstances a lenient view is taken against him. I sentence the convict Bijender to Rigorous Imprisonment for a period of one month and eight days (already undergone) and fine to the tune of SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 64 of 65 Rs.5,000/ for the offence under Section 411 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of one month.
Benefit of Section 428 Code of Criminal Procedure shall be given to all the convicts for the period already undergone by them during the trial, as per rules.
The convicts have also been informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order of sentence be given to all the convicts free of costs and another be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 20.7.2011 ASJ (NW)II: ROHINI
SC No. 881/07, St. Vs. Davender etc., FIR 637/07, PS Nangloi Page 65 of 65