Delhi District Court
State vs . Suresh @ Kukku Etc. on 30 July, 2014
FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc.
IN THE COURT OF SH.AMIT BANSAL, ADDITIONAL SESSION JUDGE04
(NORTHWEST DISTRICT) ROHINI COURTS, DELHI
IN THE MATTERs OF :
S.C. No. 166/07
FIR No. 178/05
U/S 392/397/411/120 B/34 IPC
P.S. Narela
State Vs. Suresh @ Kukku etc.
STATE VERSUS 1. Suresh @ Kukku S/O Sh. Daya
Ram, R/O H.No.76, Gali No.1, Nai
Basti, Bankner, Narela, Delhi.
2. Robin @ Pushi S/O Late Sh. Indra
R/O H.No.72, Gali No.1, Bankner,
Narela, Delhi.
3. Anil @ Abja @ Parva S/O Late Sh.
Dharampal, R/O Chottu Ram
Colony, Village Kundli, Distt.
Sonepat, Haryana.
4. Sanjay @ Chamta S/O Late Sh.
Chottu, R/O H.No.11 B, Swatantar
Nagar, Narela, Delhi.
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FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc.
Date of receipt of file in this Court: 01.02.14
Date when arguments were heard: 22.07.14
Date of judgment : 30.07.14
JUDGMENT
1. All the above said four accused persons have been charge sheeted by P.S. Narela for commission of offences U/S 392/397/411/120B/34 IPC and 25/27 Arms Act, 1959.
2. Copies of charge sheet were supplied by the Ld. Metropolitan Magistrate to all the four accused persons. After complying with the provisions of Section 207 CrPC, the present case was committed to the Court of sessions as the offence U/S 397 IPC is exclusively triable by the Sessions Court.
3. All the four accused persons are facing trial on the allegations of the prosecution that on 14.04.05 at 7.15 p.m. on road near Basanti Dal Mill , Village Kureni, Narela,Delhi they all along with their accomplice Parveen( Juvenile in conflict with law) in furtherance of their common intention committed robbery and robbed the complainant Sh. Surender Kumar @ Bittoo (PW1) while he was going on his car make Honda City bearing No. DL7CF0598 and snatched keys of the car, Page 2 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. one briefcase containing Rs.1,90,000/, some cheques and a demand draft amounting about Rs. 1 lac, Driving License, RC, Ledger and cash book etc. of the mill and they all thereby committed an offence punishable U/S 392/34 IPC.
Accused Anil @ Abja @ Parva is further facing trial on the allegations of the prosecution that on 17.04.05 at unknown time from bushes near the back wall of a godown situated near FCI godown on Bawana Road towards Bhor Garh, Narela, Delhi he was found in unlawful possession of one desi katta and two live cartridges which he had used in the commission of the case robbery on 14.04.05 at 7.15 p.m. on road near Basanti Dal Mill, Village Kureni, Narela, Delhi without any permit or license in contravention of Arms Act, 1959 and thereby committed the offences punishable U/S 25/27 of the Arms Act, 1959. He is also facing trial on the allegations of the prosecution that on 14.04.05 at 7.15 p.m. at the above said date, place and time while committing the above said robbery he used the above said katta i.e. a deadly weapon by putting the same on the person of complainant and thereby committed an offence punishable U/S 397 IPC.
Accused Anil @ Abja @ Parwa is also facing trial on the Page 3 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. allegations of the prosecution that on 17.04.05 he dishonestly received or retained Rs.5,000/ cash knowing or having reason to believe the same to be stolen property from the possession of complainant Surender Kumar @ Bittoo and thereby committed an offence punishable U/S 411 IPC.
Accused Sanjay @ Chamta is further facing trial on the allegations of the prosecution that on 17.04.05 he dishonestly received or retained Rs.15,000/ cash and the keys of the car with keyring knowing or having reason to believe the same to be stolen property from the possession of complainant Surender Kumar @ Bittoo and thereby committed an offence punishable U/S 411 IPC.
Accused Suresh @ Kukku is further facing trial on the allegations of the prosecution that on 16.04.05 he dishonestly received or retained Rs.84,000/ cash knowing or having reason to believe the same to be stolen property from the possession of complainant Surender Kumar @ Bittoo and thereby committed an offence punishable U/S 411 IPC.
Accused Suresh @ Kukku is also facing trial on the allegations of the prosecution that on 17.04.05 he along with Parveen ( JICL) dishonestly received or retained two registers of the firm of the Page 4 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. complainant, knowing or having reason to believe the same to be stolen property from the possession of complainant Surender Kumar @ Bittoo and thereby committed an offence punishable U/S 411 IPC.
4. The prosecution in support of its case examined total 18 witnesses and thereafter the prosecution evidence was closed.
5. Statements of all the accused persons were recorded U/S 313 CrPC in which they denied all the incriminating prosecution evidence on record appearing against them and stated that they have been falsely implicated in the present case.
Accused Suresh @ Kukku admitted that he was working for the complainant Surender Kumar @ Bittoo, however, no altercation had taken place between them. He also stated that no recovery was effected at his instance by the police and all the recovered articles had been planted upon him.
Accused Robin @ Pushi further stated that he was not apprehended in the manner as alleged by the prosecution, he was kept in wrongful confinement after taking him from his house and was forced to sign various blank papers and forms at the police station which were later on converted into various memos and documents including the disclosure statement. He stated that the scooter bearing Page 5 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. registration No. DL8SQ 5003 was not seized in the manner as alleged by the prosecution. He stated that nothing was recovered from him or at his instance and the alleged recovery has been planted upon him. He stated that he was kept in wrongful confinement at the police station and was shown to various public persons after being mercilessly beaten up there.
Accused Sanjay @ Chamta further stated that he was forced to sign various blank papers and forms at the police station which were later on converted into various memos and documents including the disclosure statement. He stated that he was shown to be public persons in the police station as well as during the course of his police custody remand and his photographs were also taken in the police station. He stated that nothing was recovered from him or at his instance and the alleged recovery was planted upon him. He stated that he was kept in wrongful confinement at the police station and was shown to various public persons after being mercilessly beaten up there.
Accused Anil @ Abja @ Parwa further stated that he was lifted from the outside area of his house by the police and later on was falsely implicated in this case. He stated that he has nothing to do with Page 6 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. the present case and was wrongly arrested in this case. He stated that his signatures were obtained forcibly on blank papers at the police station which were later on converted into various memos as per the convenience of the police. He stated that nothing was recovered from him or at his instance as the alleged recovery was planted upon him. He stated that he was shown to be public persons in the police station as well as during the course of his police custody remand and his photographs were also taken in the police station. He stated that the sanction U/S 39 of the Arms Act, 1959 was given by Additional DCP in a mechanical manner without application of mind. He stated that he was kept in wrongful confinement at the police station and was shown to various public persons after being mercilessly beaten up there.
Accused Anil @ Abja @ Parwa preferred not to lead any defence evidence in this case, whereas, the remaining three accused persons preferred to lead defence evidence in support of their defence.
6. As mentioned above, accused Suresh @ Kuku, Robin @ Pushi and Sanjay @ Chamta preferred to lead defence evidence in support of their case, however, as per record, no accused actually lead any defence evidence and the defence evidence was closed vide order Page 7 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. dated 22.5.2012.
7. I have heard the final arguments of Ld. Addl. PP for State and also the Ld. Defence Counsel of all the accused persons. I have also perused the record including the written arguments on behalf of accused Robin @ Pushi, Sanjay @ Chamta and Suresh @ Kuku.
8. Ld. Addl. PP for State has argued that PW1 (complainant) has correctly identified accused Anil @ Abja @ Parwa, Sanjay @ Chamta and Robin @ Pushi in the court as the persons who actually robbed him and has also mentioned their role in his testimony. He argued that accused Anil @ Abja @ Parwa was the person who had put desi katta on the head of PW1, accused Sanjay @ Chamta was the one who was having iron rod with him and had broken the glasses of windows of the door of the car and the accused Robin @ Pushi was the one who came on the scooter along with the above said two accused persons at the spot, was driving the scooter, stopped the scooter in front of the car of PW1 and after committing the robbery, the said three accused ran away on the same scooter along with the robbed money and articles. He argued that accused Suresh @ Kukku was earlier the driver of PW1, who had conspired with other three accused persons as an altercation had earlier taken place between him and Page 8 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. PW1. He argued that accused Anil @ Abja @ Parwa, Sanjay @ Chamta and Robin @ Pushi refused to participate in judicial TIP proceedings despite warning and an adverse inference can be drawn against them. He also referred to the testimonies of PW1, PW3, PW11 and PW15 and argued that the accused persons are liable to be convicted in this case for the offences under which charges have been framed against them. He argued that accused Suresh @ Kukku and Praveen ( JICL) were standing near Munim Ji Ka Bagh with scooter No. DL 1 SB 7555 ( Ex. P10) as got recovered by accused Suresh @ Kukku and accused Suresh@ Kukku was having mobile phone No. 9312439251 ( as got recovered by accused Suresh @ Kukku), while they were waiting for PW1, whereas, the accused Robin, Sanjay and Anil were waiting for PW1 for committing the robbery near Village Kureni with scooter No. DL8SQ5003 ( as got recovered by accused Robin), accused Robin was having mobile phone No. 9350077886 (as got recovered by accused Robin) and both the groups of accused persons were in contact with each other through above said two mobile phones which is corroborated by the Call Details Record of both the mobiles and referred to the testimony of PW12 in this regard.
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FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc.
9. Ld. counsel for accused persons referred to rukka and testimony of PW1 and argued that Sh. Ram Avtar would have been a material witness for the prosecution, however, he has not been examined by the prosecution and a important link in this regard is missing. It was also argued that PW13 Mohd. Mustafa should have been an accused in this case as the doubt has been raised over him by complainant in rukka in this case. He argued that the case property i.e. currency notes, cheque books, registers, key of the Honda City car etc. were not produced or proved by PW1 and even details of the cheque books, currency notes, registers etc. have not been mentioned in the statement or even deposed by PW1. They argued that the prosecution has failed to show as to how PW1 could have identified the case property i.e. currency notes without any distinct identification mark on them and even no TIP of case property was done by PW1. It was argued that even the Honda City car of PW1 was not got proved by PW1 and in the absence of proving of said vehicle on record, the prosecution has failed to prove that the window pane glasses of said vehicle were broken during the incident. It was argued that even the rod as allegedly got recovered by accused Sanjay or the alleged katta as got recovered by accused Anil were not shown to Page 10 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. PW1 during his testimony and not got proved by him. They argued that PW13 has also not supported the case of prosecution against the accused persons and the prosecution has failed to prove beyond reasonable doubt the incident itself. It was further argued that no public witnesses were joined during the entire investigation and also during the arrest of accused persons or during alleged recovery from them. It was argued that the original of CDRs have not been proved on record by the prosecution, the location of the accused persons have not been proved by the prosecution and the prosecution has miserably failed to show that the accused persons were in contact with each other while committing robbery through the said two mobile phones. It was argued that the katta and two live cartridges were falsely planted upon accused Anil @ Abja @ Parwa, the alleged recovery was effected in the year 2005, whereas the sanction U/S 39 of the Arms Act, 1959 was given by Additional DCP on 16.06.08 despite the FSL report having date of 29.09.06. It was argued that no reliance can be placed upon above said recovery and even no finger prints could be found on said katta. It was argued that the katta was not proved or shown to PW1 and PW13 during their testimony and thus it could not be proved by the prosecution that the said katta or Page 11 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. any other katta or deadly weapon was used by accused Anil while commission of the case robbery. The Ld. Counsel for the accused persons prayed that the accused persons be acquitted in the present case as the prosecution has failed to prove its case beyond reasonable doubt against the accused persons.
10. As mentioned above, the prosecution in support of its case has examined total 18 witnesses.
PW1 Surender Kumar @ Bittoo is the most material witness for the prosecution being the complainant/ victim of the case incident. The statement of PW1 as recorded by the police on 14.04.05 upon which the case FIR was registered has been proved as Ex. PW 1/A bearing the signatures of PW1 at point A. PW1 also correctly identified all the four accused persons as present in the court.
PW2 Shahbaz Khan is only a formal witness who deposed that the mobile No. 9350077886 never stood in his name nor the said number belonged to any member of his family.
PW3 HC Ved Parkash is a material witness who along with HC Joginder Pal ( PW11) and SI Sanjay Nagpal ( PW15) i.e. IO of the case joined the investigation of the case. The arrest memo of accused Suresh Kumar @ Kukku has been proved as Ex. PW 3/A. Page 12 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. The disclosure statement of said accused has been proved as Ex. PW 3/B. PW3 has deposed that they went to Village Bakner along with accused Suresh Kumar @ Kukku and the accused got recovered Rs.84,000/ from his house and also a scooter bearing No. DL 1SD 7555. The said scooter was taken into possession vide memo Ex. PW 3/C and the currency notes were taken into possession vide memo Ex. PW 3/E. The total recovered currency notes of Rs.1,39,000/ as recovered from all the four accused persons along with one Parveen ( JICL) have been collectively proved as Ex. P9. The arrest cum personal search memo of accused Robin @ Pushi has been proved as Ex. PW 3/F. PW3 deposed that the accused Robin @ Pushi also got recovered cash amount of Rs. 12,000/ in the denomination of Rs. 100/ each and also got recovered one mobile phone of Reliance with number 9350077886. The seizure memo of said currency notes and mobile phone have been proved as Ex. PW 11/C. The seizure memo of two wheeler scooter No. DL 8SQ 5003 as got recovered at the instance of accused Robin @ Pushi has been proved as Ex. PW 11/D. PW3 deposed that thereafter Praveen ( since JICL) was arrested from his house and he got recovered a cash amount of Rs. 23,000/ in the denomination of Rs. 100/ each and also got recovered one key of Page 13 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. a car on which H was engraved. The seizure memo of said currency notes and key has been proved as Ex. PW 11/E. The arrest cum personal search memo of accused Sanjay @ Chamta has been proved as Ex. PW 3/G. PW3 deposed that the said accused also got recovered a cash amount of Rs.15,000/ in denomination of Rs. 100/ each and also got recovered one aluminum rod. Seizure memo of said currency notes and aluminum rod has been proved as Ex. PW 11/F. PW3 deposed that accused Sanjay @ Chamta also got recovered one key of a car Honda City on which word H was engraved from bushes behind the FCI godown. He deposed that the said key was sealed in a cloth parcel sealed with the seal of 'VP' and was taken into possession vide seizure memo Ex. PW 11/L. He deposed that thereafter the accused persons led them to Village Kundli at the house of accused Anil from where accused was arrested vide arrest cum personal search memo Ex. PW 9/H. He deposed that accused Anil got recovered cash amount of Rs. 5,000/ in the denomination of Rs. 100/ each and the said currency notes were taken into possession vide seizure memo Ex. PW 11/H. PW3 deposed that thereafter the accused Anil led them towards the bushes behind FCI godown in Narela from where he got recovered one county made pistol and two Page 14 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. live cartridges. IO prepared the sketch of country made pistol and live cartridges Ex. PW 11/M and thereafter the country made pistol and live cartridges were sealed in a cloth parcel which was sealed with the seal of 'VP' and was taken into possession vide seizure memo Ex. PW 11/N. The pointing out memo at the instance of all the accused persons has been proved as Ex. PW 11/K. PW3 deposed that during the police custody remand the accused Suresh and Praveen ( since JICL) led them near ganda nala in front of Gador Factory and got recovered two registers of K.L. Industries, which were taken into possession vide seizure memo Ex. PW 11/O. The said two registers i.e. one register and one challan book have been proved as Ex. P1 and Ex. P2 . The above said country made pistol and cartridges as got recovered by accused Anil have been proved as Ex. P3 and Ex. P4 ( collectively) respectively. The above said aluminum rod as got recovered by accused Sanjay, produced by MHC(M) in the court in unsealed condition, has been proved as Ex. P5. The two mobile phones as got recovered by accused Suresh @ Kukku and Robin @ Pushi have been proved as Ex. P6 ( collectively). The above said two keys as got recovered by accused Sanjay and Praveen ( since JICL), produced by MHC(M) in unsealed cloth parcels, have been proved as Page 15 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. Ex. P8 and Ex. P12 respectively. The scooters as got recovered by accused Suresh and Robin have been proved as Ex. P10 and Ex. P
11. The disclosure statements made by accused Robin @ Pushi, Sanjay @ Chamta and Anil @ Abja @ Parwa have been proved as Ex. PW 3/J, Ex. PW11/G and Ex. PW 11/J respectively. PW3 in his crossexamination has inter alia deposed that he was not aware whether the alleged recovered keys were chekced to be belonging to Honda City car.
PW4 Ct. Atam Dev has deposed to the effect that on 14.04.05 after receiving DD No. 23 A, P S Narela by ASI Dharamvir Singh he along with ASI Dharamvir Singh reached the place of occurrence i.e. on road near Basanti Dal Mill, Village Kureni where they found a Honda City car bearing No. DL7CF 0598 parked with glasses of windows of driver seat as well as cleaner side found broken. He deposed that IO recorded the statement of PW1, made endorsement on the same, handed over the same to him, PW4 took the same to P.S. Narela and got the case FIR registered, Duty Officer handed over the copy of FIR and rukka to him and he handed over the same to IO SI Sanjay Nagpal at P.S. and accompanied him to the spot.
PW5 HC ( retired) Harkesh Singh was working as a Duty
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FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc.
Officer on 14.04.05 at P.S. Narela and registered the case FIR which has been proved as Ex. PW 5/A. PW6 Dharampal deposed that in the year 1992 he purchased a Bajaj scooter with registration No. DL 1SD - 7555 and sold the same after the use of 910 years to Sh. Bhagat Singh, however, the ownership of the said scooter was not got transferred in the name of said Sh. Bhagat Singh.
PW7 Pramod Kumar was running a photo studio in the name and style of ' P.K. Films' at Narela and on 14.04.05 upon asking of IO ( PW15) went to the place of occurrence and took photographs of the above said car. The photographs and negatives have been proved as Ex. PW 7/A1 to Ex. PW 7/A6 and Ex. PW 7/B1 to Ex. PW 7/B6.
PW8 Vijay deposed that he was having a Reliance phone connection No. 9350077886. He deopsed that he knew accused Robin @ Pushi as he used to visit his workshop prior to 14.04.05. He deposed that on 14.04.05 the accused Robin @ Pushi asked him to give his mobile phone to him on some pretext to make a phone call but he did not met him thereafter on that day nor he returned his phone on that day and prior to that day also he gave his phone to him 23 times on his request. The said mobile phone has been proved by Page 17 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. him as Ex. PX1.
PW9 Lalit Sharma deposed that he had no connection with the mobile No. 9312439251, had never given any application to any mobile company for the purpose of subscribing the said telephone number in his name, never used any mobile with said number and also did not know as to who had been using the said telephone number.
PW10 ASI Dharambir Singh has deposed on the lines of PW 4 . The rukka prepared by PW10 has been proved as Ex. PW 10/A. PW10 deposed in his crossexamination that he had not asked any public person to join the investigation.
PW11 HC Joginder Pal deposed on the lines of the testimony of PW3. He further deposed that the mobile phone which was used at the time of committing robbery was recovered from the possession of accused Suresh and was seized vide memo Ex. PW 11/A. The disclosure statement of accused Robin @ Pushi has been proved as Ex. PW 11/B. He deposed that the country made pistol and two live cartridges which were recovered at the instance of accused Anil were measured, the length of barrel was 23 cms, length of body was 10 cms, length of butt was 8 cms and the length of cartridges was 7.5 Page 18 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. cms.
PW12 Colonel A.K. Sachdeva, Nodal Officer, Reliance Communications Ltd. deposed that as per his company record the mobile No. 9312439251 i.e. a prepaid mobile was issued in the name of Sh. Lalit Sharma and another mobile No. 9350077886, a prepaid connection, was issued in the name of Shahbaj Khan and on asking of the IO he handed over the computer generated copy of call details of said mobile numbers to the IO. The true copy of the computer generated call details of aforesaid mobile numbers have been proved as Ex. PW 12/A ( collectively). In crossexamination, PW12 deposed that he had not brought the original record in respect of said mobile numbers as the original record was not preserved beyond 1 year.
PW13 Mohd. Mustafa was the driver of PW1 on the date of the incident and was driving the car No. DL 7CF0598 of PW1 at the time of incident. Perusal of record shows that he has partially not supported the case of prosecution and was crossexamined by Ld. Addl. P P for the State, however, the accused persons preferred not to crossexamine him and his crossexamination by accused persons was nil, opportunity given.
PW14 Sh. Surender Kumar deposed that he had purchased Page 19 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. two wheeler scooter no. DL8SQ 5003 from one Sh. Ashok Kumar and after 6/7 months of its purchase had sold the same to one Smt. Munni Devi.
PW15 Inspector Sanjay Nagpal is the IO of the case. He has also deposed on the lines of testimonies of PW3 and PW11. The site plan prepared by PW15 has been proved as Ex. PW 15/A. He inter alia deposed that on reaching the spot, he found parked one Honda City car of golden color bearing No. DL7CF0598, one aluminum rod and one pair of chappals lying near the said car. The seizure memo of said pair of chappals has been proved as Ex. PW 15/B. He deposed that the crime team prepared the inspection report and handed over the same to him which has been proved as Ex. PW 15/C. PW15 inter alia further deposed that he had also moved an application for conducting the judicial TIP of accused Robin @ Pushi, Sanjay @ Chamta and Anil which was fixed for 23.04.05, however, on that day all the said three accused refused to participate in judicial TIP and he obtained the copies of said judicial TIP which are Ex. PW 15/F ( of accused Anil), Ex. PW 15/G ( of accused Sanjay @ Chamta) and Ex. PW 15/H ( of accused Robin @ Pushi). He deposed that during the investigation, he came to know that accused Suresh @ Page 20 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. Kukku and Praveen ( since JICL) were standing near Munim Ji Ka Bagh with scooter No. DL 1SD 7555 and accused Suresh was having mobile phone no. 9312439251 and they were waiting for the complainant. He further deposed that the other accused Robin, Sanjay and Anil were waiting for the complainant for committing the robbery near Village Kureni with scooter No. DL8SQ 5003, accused Robin was having mobile phone No. 9350077886 and both the groups of accused persons were in contact with each other through above said two mobile phones and the said fact was corroborated with call details of said mobile phones. He also correctly identified the accused persons as present in the court.
PW16 HC Satya Pal was working as MHC(M) at P S Narela on 16.04.05 and the deposed that the IO deposited the case property in malkhana vide Sl. No. 1805, register No.19 and the copy of the same has been proved as Ex. PW 16/A. He deposed that on 25.04.05 the cash of Rs.1,39,000/ was released to its owner Sh. Surender Kumar ( PW1) as per the order of Ld. Metropolitan Magistrate, the photocopies of the currency notes were retained and he made entry in register No.19 in that regard vide Ex. PW 16/B. PW17 Sh. B.R. Anand , SSO, Ballistic, FSL, Rohini, deposed Page 21 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. that the country made pistol ( got recovered at the instance of accused Anil) was in working order and test fire was conducted successfully and that the cartridges were live one. He also identified the said country made pistol and cartridges as Ex. P3 and Ex. P4 ( collectively) respectively.
PW18 Sh. B.K. Singh - Additional DCP deposed that on 16.06.08 he was posted as Additional DCP ( Outer District) and on that day he gave sanction U/S 39 of Arms Act, 1959 in respect of accused Anil @ Parwa which has been proved as Ex. PW 18/A bearing signatures of PW18 at point A. In his crossexamination, PW18 has deposed that the pistol and live cartridges in question were not produced before him when he granted the aforesaid sanction.
11. As far as Section 392 /34 IPC is concerned, the charge has been framed against all the four accused persons. The prosecution has examined two eye witnesses of the case incident i.e. PW1 Sh. Surender Kumar @ Bittoo ( complainant) and PW13 Mohd. Mustafa (driver of the car of PW1 at the time of incident). PW1 has deposed to the effect that he was the owner of Pulses Mill at Village Kureni, Narela, Delhi under the name and style of M/S K.L. Industries. He Page 22 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. deposed that on 14.04.05 at about 6.15 p.m., he left from Naya Bazar in his above said Honda City car being driven by his driver i.e. PW13 . He deposed that there was one other person (Dalal Ram Avtar as deposed by PW13) who took the lift but was dropped by him on the way to his factory. At about 7.15 p.m. when PW1 was nearing his factory, then one two wheeler scooter came in front of his car, two boys were riding on the scooter and the third one also came there and they parked their scooter in front of car of PW1. He deposed that one boy remained sitting on the scooter whereas the other two boys came by the side of the car and also on the other side of the car. He deposed that one boy who was on his side pointed a desi katta at him and the other boy placed an iron rod at PW13. He deposed that the boy who was having the rod broke the window of the door of the car by the side of PW13, the window of the door of the car on the side of PW1 was already open, PW1 was sitting on the back seat of the car, he grappled with the boy who placed katta on his head and the said boy exhorted that he would challenge him then he would kill him by firing. PW1 deposed that by the side of PW13 on the front seat, a briefcase was lying which contained Rs. 1,90,000/ cash, some cheques and some documents. PW1 deposed that the window of the Page 23 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. front door of the car was also broken by those boys and they fled away with the briefcase containing the above said cash and articles and the also the keys of the car. He deposed that the currency notes were in the denomination of Rs.100/ and there were also some drafts in the said briefcase along with cheques and documents. PW1 deposed that he raised hue and cry but no one came to his help, he made a call at 100 number and the police reached at the spot and recorded his statement Ex. PW 1/A. He further deposed that the amount of Rs.1,39,000/ ( out of Rs.1,90,000/) was later on recovered, he identified the said currency notes in the Police Station as belonging to him and took the said amount on superdari. PW1 also correctly identified all the four accused persons in the court. He identified accused Anil as the person who had put katta on his head, identified accused Sanjay as the person who was having rod with him and had broken the glasses of the windows of the door of the car, identified accused Robin as the person who came on scooter along with accused Anil and Sanjay at the spot, was driving the scooter and stopped the scooter in front of his car and after committing the robbery accused Anil, Sanjay and Robin ran away on the said scooter along with the above said briefcase along with its contents and identified Page 24 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. accused Suresh as the person who had earlier worked with him as a driver and some small altercation had taken place between them. PW13 although deposed that the incident took place on 14.04.05 ,however, was crossexamined by Ld. Addl. P P for the State as he only partially supported the case of prosecution. In examination in chief PW13 inter alia deposed that he was working as a Driver of PW1, correctly told the registration number of the above said car and also deposed that on the said date he along with PW1 and Dalal Ram Avtar were coming to Narela and Dalal Ram Avtar dropped at Libas Pur Mor. He deposed that PW1 was sitting on the back seat of the car and he has kept his briefcase on front left seat of the car, at about 7 p.m. when they reached near Village Kureni mor, one scooterist came from the gali, stopped his scooter in front of the car, one another boy suddenly appeared from the same side and hit a danda on the glasses of window of the driver and conductor side, broke the glasses, broken glasses hit him, he sustained injury, one person manhandled with PW1 who was sitting on the back seat of the car, one of them picked up the briefcase and when PW13 tried to apprehend them, they threatened him and thereafter all the three persons ran away from the spot on the same scooter which was Page 25 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. standing behind the car towards the Bhor Garh side. In the later part of his testimony he deposed that he had seen only one person coming on the scooter from the front side. It is evident from the testimony of PW13 that he has partially supported the case of prosecution and has at least deposed to the effect that on 14.04.05 he was the driver of the said Honda City car of PW1, was driving the said vehicle with PW1 sitting on the back seat of the car, the briefcase of PW1 was lying on the front non driving seat of the car and when they reached near Village Kureni road there car was stopped by a scooter, three boys robbed the said briefcase after breaking the glasses of window of driver and conductor side and thereafter fled on the same scooter. It is pertinent to note that PW13 was not crossexamined by Ld. Counsel for the accused persons and hence, the accused persons shall be deemed to admit the above said testimony of PW13. It is also a settled law that if a witness does not support the case of prosecution fully and is crossexamined by Ld. Addl. P P for the State then his whole testimony is not to be discarded but the portion of his testimony which is found reliable and trustworthy is relevant and can be looked into. In the present case, the above mentioned part testimony of PW13 corroborates the version of Page 26 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. testimony of PW1 and can be relied upon. As far as the identity of the accused persons is concerned, the accused persons were not shown to PW13 during his testimony to prove their role, however, as discussed above, PW1 has identified the accused Robin @ Pushi, Sanjay @ Chamta and Anil @ Abja @ Parwa and has also deposed regarding their respective roles in his testimony. Perusal of record also shows that all the above said three accused persons refused to participate in judicial TIP proceedings (Ex.PW15/F qua accused Anil @ Abja @ Parwa, Ex.PW15/G qua accused Sanjay @ Chamta and Ex.PW15/H qua accused Robin @ Pushi) as conducted on 23.4.2005 despite warning and as such an adverse inference can be drawn against them. The arguments of defence that Sh. Ram Avtar would have been a material witness for prosecution but was not examined carries no substance because as per testimony of PW1 and PW13, said Sh. Ram Avtar was dropped from the car before the case incident and as such is not an eye witness to case incident. The other argument of defence that PW13 should be an accused due to contents of FIR is also baseless because it is a settled law that FIR is only a starting point of investigation and is not an encyclopedia of entire case of prosecution. The prosecution has thus proved beyond Page 27 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. reasonable doubt that the accused Robin @ Pushi, Anil @ Abja and Sanjay @ Chamta on 14.4.2005 at about 7.15pm on road near Basanti Daal Mill, Village Kureni, Narela, Delhi in furtherance of their common intention committed robbery of cash and some documents while PW1 was going in his car make Honda City bearing No. DL 7CF0598. The said three accused persons i.e. Robin @ Pushi, Anil @ Abja @ Parwa and Sanjay @ Chamta are thus liable to be convicted and are convicted u/s. 392/34 IPC.
12. As far as accused Suresh @ Kuku is concerned, PW1 never deposed that he was one of the assailants or the robbers who robbed him. Similarly, PW13 has also not taken the name of accused Suresh @ Kuku as perpetrator of the case crime. As per the case of prosecution, the accused Suresh @ Kuku and Robin @ Pushi were in conspiracy with each other and were in contact with each other during the commission of the case crime with the help of above mentioned recovered mobile phones ie. one got recovered at the instance of accused Suresh @ Kuku and another at the instance of accused Robin @ Pushi. The call detail records of both the mobile phones have been proved as Ex.PW12/A. Perusal of record however, shows that PW12 did not bring the original record and further the said call Page 28 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. detail records also did not show or prove the details of location of accused Suresh @ Kuku and Robin @ Pushi at the time of commission of alleged offence. The said call detail records thus become inconsequential and will not help the prosecution. The prosecution has thus not been able to prove beyond reasonable doubt that accused Suresh @ Kuku and Robin @ Pushi were in contact with each other in connection with case robbery at the time of commission of the offence through the above said mobile phones. Further, the scooter No. DL1SP 7555 as allegedly recovered at the instance of accused Suresh @ Kuku was not put or shown to PW1 during his testimony to prove that the said scooter was used in the commission of case crime, hence, the said recovery shall also become inconsequential. Further, as per the case of prosecution, the accused Suresh @ Kuku got recovered Rs.84,000/, out of total robbed amount. The prosecution has however, failed to show that the currency notes numbers were mentioned by PW1 during his complaint or whether the said currency notes bore any distinct marks on the basis of which PW1 was subsequently able to identify the said currency notes in the police station. The prosecution has thus failed to prove that the said currency notes were in fact the part of the robbed Page 29 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. amount, as robbed from PW1 by the accused persons. Similarly, the accused Suresh @ Kuku along with Praveen (JICL) are shown to have got recovered one register and one challan book of K.L. Industries, however, the same were not put to PW1 during his testimony to prove that the said register and challan book were part of the robbed articles. The prosecution has thus failed to prove beyond reasonable doubt that accused Suresh @ Kuku committed the case robbery in common intention with the other accused persons or that on 16.4.2005, he dishonestly received or retained Rs.84,000/ in cash or on 17.4.2005 along with Praveen (JICL) dishonestly received or retained one register and one challan book of the firm of the complainant knowing or having reasons to believe the same to be stolen property. The accused Suresh @ Kuku is thus liable to be acquitted and is thus acquitted u/s. 392/34 IPC and also u/s. 411 IPC.
13. One other charge against accused Anil @ Abja @ Parwa is that on 17.4.2005, he dishonestly received or retained Rs.5,000/ cash knowing or having reasons to believe the same to be stolen property from PW1. Similarly, the charge against accused Sanjay @ Chamta is that on 17.4.2005, he dishonestly received or retained Rs.15,000/ cash and keys of the car with keyring knowing or having reasons to Page 30 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. believe the same to be stolen property of PW1. As discussed above, the prosecution has failed to show that any recovered cash from any of the accused including Anil @ Abja @ Parwa or accused Sanjay @ Chamta had any specific identification mark or any distinct number of the robbed currency amount of PW1 were noted down to facilitate PW1 to identify the cash amount later on. In these circumstances, the prosecution has failed to prove that the said recovered cash amount was actually the part of the robbed amount of PW1 and thus has failed to prove that the said alleged recovery was stolen property with in the definition of section 410 IPC. As far as the key of the car with key ring is concerned, the same were never put to PW1 during his testimony to prove that the same were actually the key and key ring of the car of PW1 which were robbed on the fateful day of 14.4.2005. The said key and key ring thus also could not be proved as the stolen property of the case. The accused Anil @ Abja @ Parwa and Sanjay @ Chamta are thus acquitted u/s. 411 IPC.
14. The next charge to be considered is against the accused Anil @ Abja @ Parwa to the effect that on 14.4.2005 at 7.15pm on road near Basanti Daal Mill, Village Kureni, Narela while committing the case robbery, he used a katta i.e a deadly weapon by putting the same on Page 31 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. the person of PW1 and thereby committed an offence u/s. 397 IPC. He is also facing trial on the charge that on 17.4.2005 at unknown time from bushes near the back wall of a godown situated near FCI godown on Bawana Road towards Bhorgarh, Narela, Delhi, he was found in an unlawful possession of one desi katta and two live cartridges which he had used in the commission of the case robbery on 14.4.2005 without any permit or license in contravention of Arms Act, 1959 and thereby committed offence punishable u/s.25/27 Arms Act, 1959.
PW3 ASI Ved Parkash has deposed that accused Anil @ Abja @ Parwa led them towards the bushes behind FCI Godown in Narela from where he got recovered one country made pistol and two live cartridges. PW11 HC Joginder Pal has also deposed that accused Anil @ Abja got recovered one country made pistol and two live cartridges from the bushes, the length of barrel was 23 cm., length of body was 10cm, length of butt was 8cm and the length of cartridge was 7.5cm. The seizure memo of said country made pistol and two live cartridges has been proved as Ex.PW11/N. PW15 Inspector Sanjay Nagpal has deposed that accused Anil @ Abja @ Parwa made disclosure statement which has been proved as Ex.PW11/J and also Page 32 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. led them behind the godown of FCI at Narela and got recovered one country made pistol and two live cartridges from the bushes nearby. The said country made pistol has been proved as Ex.P3 and the said two cartridges have been proved as Ex.P4(colly.) Nothing has appeared in the testimony or crossexamination of PW3, PW11 and PW15 to discredit their testimony. PW3, PW11 and PW15 are reliable witnesses and their testimony in this regard inspire confidence. Perusal of Ex.PW11/N i.e seizure memo of katta and two live cartridges also show that it bears the signatures of PW3 and PW 11 as witnesses whereas PW15 is the executant of the said document. PW17 ie Shri V.R. Anand, Senior Scientific Officer, Ballistics, FSL, Rohini, Delhi has proved that the said country made pistol was in working order, the said cartridges were live one and also test fired from the said country made pistol. His report has been proved as Ex.PW17/A. The sanction to prosecute the accused Anil @ Parwa as given u/s. 39 of the Arms Act, 1959 has been proved as Ex.PW18/A. Ld. Counsel for accused persons argued that the pistol and live cartridges were not produced before PW18 before the grant of above said sanction and contended that the said lacuna vitiated the sanction. There is no force in the said contention because the FSL Page 33 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. Report was before PW18 which clearly mentioned that it was a country made pistol .315bore, was in the working order, the test fire was conducted successfully, the two cartridges were live one and the country made pistol and cartridges were firearm / ammunition as defined in the Arms Act, 1959. The prosecution has thus proved beyond reasonable doubt that the accused got recovered the above said country made pistol (katta) and two live cartridges vide Ex.PW11/N and he was found in possession of the said country made pistol and live cartridges without any valid permit or license and in contravention of Arms Act, 1959. The accused Anil @ Abja @ Parwa is thus convicted u/s. 25 Arms Act, 1959.
As far as Section 27 of the Arms Act, 1959 is concerned, the said country made pistol Ex.P3 was never put to PW1 in his testimony and,therefore, the prosecution has not been able to prove that the accused Anil @ Abja @ Parwa used the said dessi katta while committing the case robbery. PW1 has deposed that the accused Anil had put a katta on his head while committing the case robbery, however, in the absence of identification of said recovered katta from PW1, the prosecution has not been able to prove beyond reasonable doubt that accused Anil used the said katta i.e. EX.P3 Page 34 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. during the commission of case robbery. The accused Anil @ Abja @ Parwa is thus liable to be acquitted and is thus acquitted U/S 27 of Arms Act, 1959.
As far as offence U/S 397 IPC is concerned, as discussed above, the prosecution has failed to prove that the accused Anil has actually used Ex.P3 i.e. the katta which was recovered from him during the commission of the case robbery. The weapon of offence i.e. the actual alleged katta stated to be allegedly used by accused Anil @ Abja @ Parwa ( in terms of testimony of PW1 ) thus could not be recovered from the said accused or any of the other accused. It is pertinent to note that PW13 i.e. the eye witness of the case incident did not support the case of the prosecution regarding the possession of any katta with any of the accused or assailants during the commission of the case robbery. In crossexamination by Ld. Addl. P P for the State, PW13 deposed that he could not say what was in the hands of the boy while he was threatening his employer. PW13 further denied the suggestion of Ld. Addl. P P for State that the said boy put country made pistol on his employer and threatened to kill his employer. The said story of accused Anil @ Abja @ Parwa of having a katta at the time of commission of robbery thus become highly Page 35 of 36 FIR No. 178/05 P.S. Narela S/V Suresh @ Kukku etc. doubtful and in these circumstances the prosecution has failed to prove beyond reasonable doubt that the accused Anil @ Abja @ Parwa used a katta i.e. a deadly weapon during the commission of the case robbery. The accused Anil @ Abja @ Parwa is thus acquitted U/S 397 IPC.
15. In view of the above said discussion, the accused persons i.e. Anil @ Abja @ Parwa, Robin @ Pushi and Sanjay @ Chamta are convicted U/S 392/34 IPC. The accused Anil @ Abja @ Parwa is also convicted U/S 25 of Arms Act, 1959. The accused Anil @ Abja @ Parwa is acquitted U/S 27 of the Arms Act, 1959, U/S 397 IPC and also U/S 411 IPC. The accused Sanjay @ Chamta is acquitted U/S 411 IPC. The accused Suresh @Kukku is acquitted of all the charges i.e. U/S 392 /34 IPC and also U/S 411 IPC.
Let the convict Anil @ Abja @ Parwa , Robin @ Pushi and Sanjay @ Chamta be heard on the quantum of sentence.
Announced in the open court ( Amit Bansal)
on 30.07.14 Addl. Sessions Judge04 ( N/W):
Rohini Courts: Delhi
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