Delhi District Court
State vs Sameer S/O Manak Ram on 23 July, 2014
IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS)
NORTH DISTRICT:ROHINI COURTS:DELHI
SC No.07/2013
FIR No.188/2012
PS Bawana
u/s 392,397,411,365/34 IPC
State
Vs.
1. Sameer s/o Manak Ram
R/o H. No.940, Pana Rann,
Nakshe wali gali, Bawana, Delhi.
2. Sumit s/o Dharambir Rathi
R/o VPO Bhaproda, District Jhajjar,
Haryana.
Date of institution :08012013
Date when arguments concluded:23072014
Date when Judgment pronounced:23072014
Appearances: Mr. Ashok Kumar, APP for the State.
Mr. Pradeep Rana counsel for accused Sameer
Ms. Neelam Singh, Amicus Curiae for accused
Sumit
JUDGMENT
1. Both accused have been forwarded by police to face trial u/s 392, 397,411, 365/34 IPC and 27 Arms Act.
St. v. Sameer etc.188/12 1 of12
2. Facts are that DD No.43 A was registered in PS Bawana on 07062012 at 11.40 PM on receipt of information that Maruti Swift Dzire car No.DL2CAK1245 had been robbed by two boys on gun point. Inquiry of DD was marked to SI Narender who reached the spot with Ct. Amit and recorded the statement of Yogesh Sharma to the effect that on that day he was returning home from factory and at about 9.15 PM, when he reached wine market, SectorI, DSIDC, Bawana, two boys, who had covered their faces with handkerchiefs, boarded his car forcibly. One of the boy was having a pistol. He was forced to sit on the front left seat with the second boy and one of them drove away the car. Battery of his both phones were removed and hand sets were returned to him. He was alighted from the car at a distance of 100200 meters and the boys ran away with the car.
Police developed the case that both the accused were identified by the complainant in police custody. Accused Sumit got recovered the burnt car from the fields of village Behrana, District Jhajjar on 18082012.
3. Charge u/s 365,392/34 of IPC was framed against both accused. Additional charges against accused Sumit @ Kala are u/s St. v. Sameer etc.188/12 2 of12 397 and 411 IPC. Both accused claimed trial.
4. In order to substantiate the charge, prosecution examined ten witnesses. Accused did not examine a single witness in defence.
5. PW10 SI Narender is the IO. He deposed that on 07062012, on receipt of DD No.43 A, he alongwith Ct. Amit reached DSIDC, Sector1, Bawana and rang up the caller who told his location in front of the liquor shop. He reached there and met the complainant Yogesh Sharma and recorded his statement Ex.PW7/A, prepared rukka Ex.PW3/B and sent Ct. Amit to PS who got the case FIR Ex.PW3/A registered. Thereafter he prepared rough site plan Ex.PW7/B at the instance of complainant. He further deposed that accused Sameer was apprehended and interrogated on receipt of secret information on 06082012 and he was arrested vide arrest and personal search memos Ex.PW6/A and Ex.PW6/B respectively and his disclosure statement Ex.PW6/C was recorded. He was taken on two days police custody and during said PC, second accused Sumit Rathi was arrested on 09082012. Accused Sumit pointed out the place of robbery on 09082012 and pointing out memo Ex.PW6/F was prepared. Accused Sameer also St. v. Sameer etc.188/12 3 of12 pointed the place of robbery on 09082012 and pointing out memo was prepared. He further deposed that accused Sumit got the robbed car recovered from the fields of PW1 in village Behrana, District Jhajjar and at that time it was in burnt condition. The car is Ex.P1.
PW4 Ct.Amit was with PW10 SI Narender during the inquiry of DD No.43 A. He deposed that IO recorded statement of the complainant and he took rukka to PS and got the FIR registered and returned to the spot at 2.50 AM and handed over the copy of FIR and rukka to the IO.
PW3 HC Dharam Singh was duty officer in the night intervening 07/08062012. He deposed that on 08062012 at 2.00 AM he registered case FIR Ex.PW3/A on receipt of rukka sent by SI Narender Singh through Ct. Amit and after registration of FIR, he made endorsement Ex.PW3/B regarding registration of FIR.
6. PW5 HC Pradeep Kumar deposed that on 06082012 he received information that accused Sameer, wanted in this case, would come from village Nangal and shall got to village Daryapur. He told the tip off to PW10 SI Narender who formed a raiding team of himself, PW5, Ct. Ravinder, Ct. Pawan and Ct. Rajbir and team St. v. Sameer etc.188/12 4 of12 reached Shani mandir, Nangal village and barricades were erected. He further deposed that a white Verna car coming from village Nangal was stopped at the barricades at 9.40 PM. The person who was sitting on the conductor side of the car rolled down the glass of the window and secret informer pointed him out as accused Sameer. He was arrested vide arrest and personal search memos Ex.PW6/A and Ex.PW6/B respectively and his disclosure statement statement Ex.PW6/C was recorded. Evidence of PW6 Ct. Pawan Kumar is slightly different from the testimony of PW5 only in the respect that accused Sameer led police party to sectorI, DSIDC Bawana in front of liquor vend and pointed out it as the same place where he alongwith coaccused had robbed the car of the PW7 and pointing out memo Ex.PW6/F was prepared.
PW9 Ct. Ravinder was with PW5, PW6 and PW10 on 07082012 when accused Sameer was arrested. He deposed that on 09082012, he was present in PS with PW10 SI Narender when accused Sumit Rathi was arrested vide arrest and personal search memos Ex.PW9/C and Ex.PW9/D respectively.
7. PW1 Phoolwati deposed that some police officials alongwith one accused came to her on 09082012 in village St. v. Sameer etc.188/12 5 of12 Behrana, District Jhajjar and the accused pointed out her fields in which he had burnt a vehicle. Pointing out memo Ex.PW1/A was prepared on which she put thumb mark. She deposed that the vehicle in question was burnt in her field about two months prior to 02082012. In leading questions by APP, PW1 replied that she cannot say if the accused Sumit Rathi was with the police officials at that time.
PW2 Jitender was working as driver of recovery van in M/s Pooja Crane company. He deposed that on 18082012 on the asking of police personnels, he alongwith police staff and accused Sumit Rathi reached village Behraja, District Jhajjar and a burnt vehicle was recovered from the fields which was taken into possession vide memo Ex.PW1/A. Photographs from Ex.PW2/A1 to A8 were clicked. He brought the burnt vehicle to Delhi with the help of his crane and charged Rs.2,000/ as towing charges and issued a receipt mark PW2/A.
8. PW7 Yogesh Sharma is the complainant. He deposed that he was running a factory at G9, Sector3, DSIDC, Bawana, Delhi. On 07062012 at 9.15 PM he was returning home from his factory in Swift Dzire car No.DL2CAK1245 and when he reached St. v. Sameer etc.188/12 6 of12 near the market DSIDC, Bawana and when he applied break, two boys came near the car. One of them showed him a pistol and forcibly made him to sit on the front left seat of the car. Other boy drove away the car. They snatched his both mobile phones, removed batteries from them and returned him the sets. He was alighted from the car about 100 meters away from there. He intimated PCR by dialing 100 number and PW10 SI Narender came there who recorded his statement Ex.PW7/A. Rough site plan Ex.PW7/B was prepared at his instance.
PW7 was declared hostile and he denied the suggestion that accused Sameer had snatched his mobiles and had removed battery on 07062012. He also denied the suggestion that accused Sumit had shown him pistol on 07062012 and had made him to sit on front left seat and had driven away the car.
PW8 Hariom is the statistical Assistant, Transport Department, New Delhi. He deposed that his office had authorised some car agencies to allot registration numbers to the cars sold by them. About this case, he stated that such authorisation had been given to M/s Competent Automobiles Company Ltd., Cannaught Place, New Delhi. Whenever any vehicle St. v. Sameer etc.188/12 7 of12 is sold by such agencies, they take papers from the buyers and allot registration numbers. After completion of process, they send the files of vehicles to the department and then the department prepares registration certificates i.e. RC. He brought the file of car No.DL2CAK1245 alongwith form nos.20,21,22 and 24 Ex.PW8/A to Ex.PW8/A3. He further deposed that as per their record, the vehicle was purchased by Yogesh Kumar and he was the registered owner. Copy of RC is Ex.PW8/B. He further deposed that Yogesh Kumar informed his department in 2010 vide application Ex.PW8/C that his vehicle had been stolen and he had filed copy of FIR also.
9. Even APP conceded that there is no material against of the accused u/s 392 and 365 IPC. He stressed that there are pointing out memos and recovery of robbed car at the instance of accused Sumit Rathi and that is sufficient to convict him u/s 411 IPC.
10. Section 365, 392& 397 IPC PW7 Yogesh Sharma supported the prosecution case by deposing that his Swift Dzire car No.DL2CAK1245 was robbed on 07062012 at 9.15 PM in Sector1, DSIDC, Bawana on the strength St. v. Sameer etc.188/12 8 of12 of a pistol like thing. He did not state it specifically that the accused were carrying the pistol. He admitted that IO recorded his statement Ex.PW7/A bearing his signature at point A. On the identity of the accused, he is mum. It was the prosecution case in the chargesheet that when accused Sameer and Sumit were in police custody, they were identified by PW7. He was declared hostile and was crossexamined by the APP and he spurned both the suggestions that accused Sumit had shown his pistol and had driven away his car and that accused Sameer had removed batteries of his both phones. So he is not supporting the prosecution case on the issue of identity of the accused. Evidence of PW7 is not sufficient to connect the accused with abduction and robbery on the gun point.
APP argued that both accused had pointed out the place of robbery. It has been deposed by PW6 and PW10 that accused Sameer pointed out the place of robbery on 07082012 and pointing out memo Ex.PW6/F was prepared. PW5 and PW10 deposed that accused Sumit Rathi pointed out the place of robbery on 09082012 and pointing out memo Ex.PW5/A was prepared.
It has been deposed by PW4 Ct. Amit and PW10 SI Narender St. v. Sameer etc.188/12 9 of12 that they reached the place of robbery on 07062012 at 9.15 PM on receipt of DD No.43 A. There they met the complainant and PW10 recorded his statement. Rukka was sent to PS through Ct. Amit. So PW4 and PW10 had become well aware of the place of incident on 07062012 and hence there was no discovery of any fact consequent to pointing out memos by both accused. So pointing out memos are inadmissible in evidence. In this regard case of the accused is well covered by Vijay Singh v. State and ors. Crl. Appeal No.819/12 decided on 030912. In the cited case, Hon'ble High Court of Delhi did not rely upon the pointing out memo holding that it was not admissible in evidence as it did not fall within the scope and ambit of section 27 of Indian Evidence Act 1872 because the place of occurrence was already known to the police. Hence, pointing out memos are not incriminating circumstance against any of the accused.
11. Recovery Prosecution case is that robbed car was recovered from the fields of PW1 situated in village Behrana, District Jhajjar at the instance of accused Sumit on 18082012 for which he made disclosure statement on 09082012.
St. v. Sameer etc.188/12 10 of12 PW1 Phoowati deposed that police officials alongwith one accused had come to her field on 09082012. She could not identify the accused and even in answer to leading questions by APP she deposed that she cannot say if it was accused Sumit who was with police on 09082012. She deposed that the said vehicle was lying in her field in burnt condition since two months prior to 09082012. PW2 Jitender is consistent on recovery.
Disclosure statement was made by accused Sumit Rathi on 09082012 that he had burnt the robbed car on 15062012 and that it was lying in the fields of village Behrana. Despite in existence of such a disclosure statement, the police did not seek his police custody and rather sought his judicial custody. He was sent to JC for 14 days. IO moved another application on 17082012 for the police custody of accused Sumit Rathi and it was granted. During police custody on 18082012, the recovery of burnt car was effected from the fields of PW1. Had accused Sumit made disclosure statement on 09082012 about the burnt car, the police should have taken him on PC on that very day and not would have asked for JC. It means that such disclosure statement was not in existence on 09082012. It means that recovery has been effected St. v. Sameer etc.188/12 11 of12 without any disclosure statement and hence it is not admissible u/s 27 of Indian Evidence Act. Moreover as per PW2 and PW10 recovery was effected on 18082012 but the version of PW1 is that one of the accused was taken to her field by police on 09082012. Photographs Ex.PW2/A1 to Ex.PW2/A8 of the fields and burnt vehicle show that the vehicle was lying in open field accessible to everybody. The incident had taken place on 07062012 and recovery was effected on 18082012 i.e. after about 2½ months. All these facts are making the recovery doubtful.
12. Conclusion In view of above discussion, prosecution has failed to prove its case. So, both the accused are acquitted of the charges levelled against him. Their bail bonds, if any, stand cancelled. Sureties, if any, discharged. Endorsement, if any, be cancelled. Accused Sumit be released, if not, wanted in any other case. File be consigned to recordroom.
Announced in the Open Court On day of 23rd July, 2014.
(UMED SINGH GREWAL)
ASJ/Special Judge (NDPS)
North Distt: Rohini Courts: Delhi
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