Delhi District Court
State vs . on 28 May, 2013
1
IN THE COURT OF SH. DHARMESH SHARMA,
ASJ01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI.
Date of filing of charge sheet : 26.02.2010
Date of framing of charge : 23.03.2010
Date of final arguments : 08.05.2013
Date of judgment : 28.05.2013
SC No. 05/13
FIR NO. 194/2009
PS : Chanakya Puri
U/s 395/397/411/412 of IPC
STATE
Vs.
1. Parveen Kumar Shah @ Bhuppi
S/o Sh. Pratul Chander Shah
R/o A111, M. S. Flats Staff Quarter
B.K.S Marg New Delhi.
2. Sachin
S/o Kishan Lal
R/o 1/352, Trilok Puri, Delhi.
3. Jamuna @ Tarzon
S/o Late Sh. Mangat Ram
A211, M. S. Flats,
Baba Kharak Singh Marg
New Delhi.
FIR No. 194/09 State v. Parveen Kumar Shah & Ors. 1 / 15
2
4. Ravi Verma
S/o Ram Murti Verma
C33/6, Kali Bari Marg
GPoint Mandir Marg, New Delhi.
5. Anoop Kumar Chawla
S/o Vinod Chawla
R/o 38/62, Sector3, R. K. Ashram Marg
New Delhi.
APPEARANCES
Present : Mr. Salim Khan, Ld. Addl. PP for the State
Mr. Rahul Dabas, Ld. Counsel for accused Parveen Kumar
Shah and Jamuna @ Tarzon.
Mr. Ravi Qazi, Ld. Amicus Curiae for accused Sachin
Ms. Tabassum, Ld. Counsel for accused Anup Kumar
Chawla.
Mr. R. P. Yadav, Ld. Counsel for accused Ravi Verma.
28. 05. 2013
JUDGMENT
1. This common judgment shall decided the above noted three cases involving the same five accused persons who allegedly committed three separate dacoity at three different places during the intervening night of 29th and 30th November2009. As per order dated 15.04.2010 of my ld predecessor the cases were clubbed and the witnesses have been examined in the main case in FIR No. 209/2009 of PS Mandir Marg. The judgments in the three FIR are being rendered separately one by one dealing with the matters in issue for the purposes of clarity and avoid miscarriage of justice. FIR No. 194/09 State v. Parveen Kumar Shah & Ors. 2 / 15 3 FIR NO. 194/2009
2. This was the first incident that was allegedly reported. Five accused persons namely Parveen Kumar Shah S/O Shri Pratul Chand Shah (A1), Sachin s/o Shri Kishan Lal (A2), Jamuna @ Tarzon s/O Shri Mangat Ram (A3); Ravi Verma s/o Shri Ram Moorti (A4) and Anoop Kumar Chawla s/o Shri Vinod Chawla (A5) have been arraigned for trial by the State jointly on the charge that on 30.11.2009 at about 1.30 AM at Race Course Road near PM office they committed dacoity and robbed the complainant Pawan and Guddu who were passengers in the TSR being driven by Sandeep Yadav who was also robbed at point of knife and depriving them of their cash and their mobile sets and decamping with the same and thereby committing offences punishable U/s 395 and 397 of IPC.
3. It may be indicated that accused Sachin was separately charged u/s 397 IPC for using buttondar knife during commission of dacoity while Jamuna @ Tarjan and Ravi Verma were also charged separately U/S 412 of IPC for having been found in possession of the stolen/ robbed properties pertaining to the victims of crime.
4. Needless to state that the accused persons pleaded not guilty and claimed trial.
FIR No. 194/09 State v. Parveen Kumar Shah & Ors. 3 / 15 4 FACTS
5. The case of the prosecution unfold in the charge sheet to the effect that in the intervening night of 29th and 30th November 2009 DD no. 21 was lodged at 1:30 am that at Race Course near petrol pump one Sandeep and his companion have been robbed by 34 boys after a scuffle; that on the said information, ASI Suresh Pal(PW2) along with Ct. Manohar Lal(PW38) reached the spot where they met one Pawan Kumar Sharma who made a statement to him as under: "that he is working as salesman in M/s Manglam Fire works shop 31C SC II DDA Market Depali, Pitampura, New Delhi and on 30.11.2009 he was coming back along with his colleague Kanan S/o Sh. Raj Gopal in a TSR bearing registration no. DL1RH 1819 which was being driven by Sandeep Yadav S/o Sh. Ram Dutt Yadav and there was another passenger Guddu Babu S/o Darwali and they were coming from Kapashera going towards ISBI and when they reached Race Course near P. M. House at 8:45p.m one Indica car bearing registration no. DL 6CK 9000 in which three boys were seen travelling came in front of their TSR after over taking and blocked its way; that as soon as TSR stopped, two boys came out from the Indica car one boy aged around 2526 years old thinly built having a height 5'10'' wearing jeans and black colour jacket put a FIR No. 194/09 State v. Parveen Kumar Shah & Ors. 4 / 15 5 knife on the hand of the driver Sandeep while another boy aged 2425 years old having a height of 5'3''hit the wind screen of the TSR with a dunda; that the boy who had put the knife on the hand of driver asked him to take out whatever he was having and robbed Sandeep of Rs.700/ a a mobile make Nokia no. 978655482 and the boys robbed him off Rs.13,500/ and mobile phone of reliance Classic no. 9313584928 and a TATA sim no. 9254436173 apart from an ATM card of Federal Bank Rohtak besides three SIMs; and the other passengers Guddu Babu was robbed of Rs. 450/ and mobile having no.9999184381 and during the scuffle driver Sandeep suffered injuries on his hand and that a third boy who were about 2022 years of age sitting on the driver seat of the black colour Indica car also came out and punched Sandeep and thereafter the three boys fled in the Indica towards Tughlak road."
6. On the said complaint which is Ex.PW10/A ASI Suresh Pal made his rukka endorsement and the present FIR Ex. PW27/A was recorded; that during the investigation, the accused was taken to RML hospital where his medical was conducted and statement of other complainant / victims were recorded and information was sought about Indica car bearing registration no. DL 6CK 9000 and TSR 1RH 1879 was seized. It is then the case of the State that on 02.12.2009 information was received by SI FIR No. 194/09 State v. Parveen Kumar Shah & Ors. 5 / 15 6 Bhanu Pratap that four boys have been caught in case FIR No. 209/09 U/s. 392/34 IPC PS Mandir Marg namely Praven Kumar Shah, Sachin, Ravi Verma and Jamuna Ram who on interrogation confessed to have been involved in a commission of the present robbery near the Petrol pump at Race Course road; that the four accused persons were formerly arrested in this case and accused persons were sent for judicial TIP. During investigation, on 20.01.2010 the 5th accused Anup Kumar Chawla was also arrested and formally interrogated in this case as well as and he was also sent for judicial TIP; during investigation the Indica car and stolen mobile phones were recovered at the instance of the accused persons and on completion of the investigation the present charge sheet was filed against the accused persons. PROSECUTION EVIDENCE
7. PW1 SI Bhanu Pratap posted at PS Mandir Marg testified that on 01.12.2009 a secret information was received that the criminals who had committed robbery / dacoity in the night of 30.11.2009 would assemble near jungle of Ravinder Rung Shala. He testified that a raiding team was constituted and accused persons were surrounded who were sitting in a Maruti Van bearing registration no. DL1V 3525 and the team was able to apprehend accused Praveen Kumar Shah , Ravi, Sachin and FIR No. 194/09 State v. Parveen Kumar Shah & Ors. 6 / 15 7 Jamuna Ram.
8. It is pertinent to mention here that after partly recording the testimony of PW1, at the cost of repetition, Ld. Predecessor vide order dated 15.04.2010 with the consent of the accused persons and their counsel directed that evidence shall be recorded in connecting/ main case in FIR 209/09 of PS Mandir Marg for disposal of the case of FIR no. 195/09.
9. Accordingly, during the course of trial, so far as the present case is concerned, the following witnesses were examined:
10. The key witnesses for the prosecution were: PW9 Guddu Babu and PW10 Pawan Kumar Sharma. Suffice to state that although they elaborated the manner in which dacoity was committed , they did not support the prosecution case when it came to the identification of the accused persons as the real offenders. PW46 Mr. Sandeep Yadav was the driver of TSR who supported the prosecution case while PW49 was third passenger Mr. Kanon who did not support the prosecution case on which I would dwell later on in this judgment.
11. PW12 was Ct. Sandeep who testified that he took five photographs of the TSR no. DL1RH 1819 that are Ex. PW 12/6 to Ex. PW 12/10 with negatives Ex. PW 12/1 to Ex. PW 12/5. FIR No. 194/09 State v. Parveen Kumar Shah & Ors. 7 / 15 8
12. PW13 was ASI Ramesh Turkry at PS Tuglak Road who recorded DD no. 27 Ex. PW 13/A regarding the incident.
13. PW14 was HC Ramesh Kumar who was posted at PS Chanakya Puri and recorded DD no. 21 at 2:15 a.m which is Ex. PW 14/A regarding the incident.
14. PW16 was Ajit Singh, Nodal Officer from Idea Cellular who produced the Customer Application Form in respect of mobile no. 9718655422 Ex. PW 16/A and the call data records from 25.11.2009 to 29.11.2009 Ex. PW 16/B in the name of Ramesh Kumar that was being used by PW46 Mr. Sandeep Yadav.
15. PW11 was Ct. Ganga Ram snf PW19 was Ct. Narender who were associated in the raiding team that apprehended the four accused persons on 01.12.2009 and so also were PW31 Inspector Madhukar Rakesh, PW37 HC Krishan Kumar, PW40 B. M. Bahuguna, PW 41 Bhanu Pratap and PW 42 ASI Sant Ram.
16. PW24 Shri Saurabh Kulsheshtra MM, South East, Patiala House Courts who conducted TIP proceedings on 10.2.2010 where accused Anoop Kumar Chawla refused to participate in the TIP proceedings which proceedings are Ex.PW24/A to PW24/E.
17. PW30 was HC Rajinder who was Malkhana Incharge who deposed that on 30.11.2009 the TSR bearing no. DL1RH 1819 was FIR No. 194/09 State v. Parveen Kumar Shah & Ors. 8 / 15 9 deposited with him by the IO.
18. PW32 was Mr. Ajab Narain Pandey who deposed that his sister was the registered owner of TSR No. DL1RH 1819 and he produced the TSR during the course of evidence which was identified.
19. PW38 was Ct. Manmohan who was associated with ASI Suresh Pal and took the rukka on the complaint Ex. PW 1/A to the police station and got the FIR recorded.
20. PW44 Mr. Devender Kumar who testified that he mechanically inspected the TSR bearing no. DL1RH 1819 and gave the report Ex. PW 44/A regarding damage on the front wind screen.
21. PW47 was Jitender Mishra, Ld. Judge, Small Cause Courts Dwarka, New Delhi who testified that on 04.12.2009 he conducted TIP of accused Sachin in terms of application Ex. PW 47/A and the TIP was fixed for 28.01.2010 at Tihar Jail in which accused Sachin refused to participate and he proved the proceedings which are Ex. PW 47/L. Similarly, he deposed that accused Jamuna , Parveen Kumar Shah and Ravi Verma were also put up for judicial TIP and they refused to participate in the same which proceedings are Ex. PW 47/D to Ex. PW 47/F. FIR No. 194/09 State v. Parveen Kumar Shah & Ors. 9 / 15 10
22. Lastly, it was PW45 SI Mithlesh Mishra who conducted the investigation of this case.
STATEMENT OF ACCUSED PERSONS
23. On the close of the prosecution evidence, since the three cases had been clubbed in terms of order dated 15.04.2010, the five accused persons were examined u/s 313 Cr.P.C thereby putting them conjointly the incriminating facts and circumstances brought by the prosecution against each of them on the judicial record. Suffice to state that each of the accused persons denied the prosecution case and denied that they committed or participated in the commission of dacoity as alleged by the witnesses and also denied that any of the stolen property / robbed property was recovered at their instance. None of the accused persons elected to lead any evidence in their defence.
ARGUMENTS
24. I have heard Ld. APP for the State and Ld. Defence counsel for the accused persons and I have also gone through the relevant oral and documentary evidence on the record of the case.
APPRECIATION OF EVIDENCE
25. Without much ado, PW 9, PW10 and PW 49 although FIR No. 194/09 State v. Parveen Kumar Shah & Ors. 10 / 15 11 testified about the gory details in which the offence was committed, they put the prosecution case on the back foot when it came to the identity of the accused persons as the real offenders. Though the said set of witnesses were treated hostile and examined by the prosecution, their version in such cross examination on identity of the accused does not inspire confidence since the testimony of PW9 and Pw10 in their cross examination admitting the suggestion of the Ld.APP for the State on identity of accused persons as the real offenders can not be given credence.
26. Further, although PW46 Sandeep Yadav was able to identify the accused Sachin as the offender who had shown him a knife, accused Parveen as the one holding a baseball bat and accused Anoop holding a hockey, it is also clouded since he further stated that he had come to know about the arrest of the accused persons and had seen them in Patiala House Courts after 57 days of the incident. PW46 during the interregnum had also collected his TSR from PS Mandir Marg when released on superdari.
27. PW46 further deposed that he went to Central Jail on 28.01.2010 where he had been called for judicial TIP of the accused persons and it is a matter of record that the five accused FIR No. 194/09 State v. Parveen Kumar Shah & Ors. 11 / 15 12 persons refused to participate in the judicial TIP proceedings. It is a matter of record that the TIP proceedings were conducted by PW47 the then Ld. MM and the proceedings in respect of accused Sachin, Jamuna Ram, Praveen Kumar and Ravi Verma are Ex. PW 47/C to Ex. PW 47/F respectively. Now, perusal of the said TIP proceedings would show that each of the accused persons refused to participate on the ground that their photographs had been taken during the period they were in custody and shown to the witnesses.
28. Thus, the defence version is quite plausible that PW46 had been shown the photographs of the accused persons prior to his deposition in the court. This inference is exemplified from the fact that it is admitted case of the prosecution that the four accused persons had been arrested on 01.12.2009 in FIR no. 209/09 of PS Mandir Marg and although during the police remand for two days were produced in the Court in muffled face but on subsequent production there was a possibility that accused persons were shown to the witnesses.
29. As regards recovery of stolen properties, PW10 Pawan Kumar Sharma testified that he was robbed of his mobile phone make Reliance Classic having no. 9313584928 besides another SIM Tata No.92544376173. Similarly, PW9 Guddu Baby was FIR No. 194/09 State v. Parveen Kumar Shah & Ors. 12 / 15 13 looted of his mobile phone make Nokia No.9999184388. PW46 Sandeep Yadav testified that he was robbed of his Nokia mobile set model 7320 having phone No. 9718655422. The case of the prosecution is that accused Sachin, Parveen Kumar Shah, Jamuna Ram @ Tarjan and Ravi Verma were apprehended in FIR No. 209/09 and at the time of personal search of accused Sachin a silver coloured mobile phone with IMEI No.65021/001136/2 was recovered vide personal search memo Ex.PW36/B; while one mobile Nokia with IMEI No. 356258/01/072885/9 was recovered from accused Praveen Kumar Shah vide memo Ex.PW36/B.
30. It further the case of the prosecution that accused Sachin, Parveen Kumar Shah, Jamuna Ram @ Tarjan and Ravi Verma during their interrogation made separate disclosure statements which are Ex.PW19A to PW19/D respectively pursuant to which at the instance of accused Praveen Kumar Shah one mobile green colour classic 2TE a CDMA phone was recovered vide memo Ex.PW9/N. Another CDMA phone of TATA Indicom was recovered at the instance of Ravi Verma vide memo Ex. PW19/O and a mobile phone at the instance of of accused Sachin vide seizure memo Ex.PW19/E with IMEI No.357569000102767 of Airtel vide memo Ex.PW19/P. Further, it is the case of the FIR No. 194/09 State v. Parveen Kumar Shah & Ors. 13 / 15 14 prosecution that at the instance of accused Jamuna @ Tarjan vide seizure memo Ex.PW19/M six mobile phones were recovered interalia a Nokia mobile with IMEI No.356915/03/809653/2 besides another Nokia mobile set model 2626 with IMEI No. 356395/02/318686/3 and the third mobile set 6600 with IMEI No. 356640/00/645724/9 vide memo Ex.PW19/M.
31. All the same, the mobile sets that were recovered at the instance of the accused persons collectively marked Ex.PW19/2. were not put to the witnesses nor identified by PW9 Guddu Babu, PW10 Pawan Kumar Sharma and PW46 Sandeep Yadav in their testimonies. As regards accused Anoop Kumar Chawla, no recovery of stolen property in the present case has been attributed to him except of cash amount which would be a long shot considering that he was arrested by the police on 25.12.2009.
FINAL ORDER
32. In the said view of discussion, I find that prosecution miserably fails to prove its case against the accused persons that they committed dacoity or were found in possession of stolen properties. Therefore, the five accused persons namely Sachin, Parveen Kumar Shah, Jamuna Ram @ Tarjan, Ravi Verma and Anoop Kumar Chawla are hereby acquitted of all the charges in FIR No. 194/09 State v. Parveen Kumar Shah & Ors. 14 / 15 15 the present case. Their Personal Bonds and Surety Bonds are cancelled. File be consigned to Record Room.
ANNOUNCED IN THE OPEN (DHARMESH SHARMA)
COURT TODAY i.e 28.05.2013 ASJ01,NEW DELHI DISTRICT
28.05.2013
.....
FIR No. 194/09 State v. Parveen Kumar Shah & Ors. 15 / 15