Delhi District Court
2003(3) Jcc 1358 Titled As Mousam Singha ... vs . State Of West Bengal, on 11 July, 2013
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 137/1
Unique Identification No. 02404R01001842003
State
Versus
1) Prem Singh @ Babloo
S/o Sh. Bhim Singh
R/o VilDhanana
PS Baroda, District Sonepat,
Haryana,
At Present: VillRangpuri,
near Mahipal Pur, New Delhi.
2) Rajesh @ Guddu
Son of late Sh. Amar Singh
R/o H.No. 253/14, Old Subzi Mandi,
Bombay Wali Gali, Chameli Mkt.
Bahadurgarh, Haryana.
(Since proclaimed offender)
3) Amrish Rana @ Gullu
Son of Sh. Bijender Rana
R/o Vill Sahiba, PSBalachor,
District Nava Sahar, Punjab.
4) Nazim Hussain Qureshi
Son of Sh. Sabir Hussain Qureshi
R/o H.no. B104, JJ colony,
Hastsal, Uttam Nagar,
New Delhi.
5) Rajeev Tyagi @ Sonu
Son of late Sh. Rajender Prasad Tyagi
R/o WZ18, Village Bodhella,
Vikaspuri, New Delhi.
SC No. 137/1 1/26
6) Gurjant Singh @ Kewal
S/o Sh. Nazir Singh
R/o VPO. Bulnoh, PS Una,
District Una, Himachal Pradesh.
FIR No. 270/03
PS - Janak Puri
U/s. 395/397/120B/420/412 IPC
Date of institution of the case: 28/08/2003
Arguments heard on: 05/07/2013
Date of reservation of order: 05/07/2013
Date of Decision: 11/07/2013
JUDGMENT
This case was registered on the statement of one Pradeep Tyagi dated 09/05/2003 U/s. 392/397/34 IPC. Prior to that, DD No. 8A was recorded on 09/05/2003 at 11.35 a.m., according to which, information was received that in front of Bharti College, one Pradeep Tyagi had told that Indica Car No.HR26, sky colour and scooter LML NV, grey colour, after hitting them, robbed Rs. 6 lacs. The said DD was handed over to SI Sultan Singh, who left for the spot with constable Subhash.
Statement of complainant was recorded by SI Sultan Singh. Crime team was called and report of the same was collected. Motorcycle No. DL4SV3364 was taken into possession. Car No. HR02G6060 was also taken into possession, which was also found lying abandoned in front of DESU office. Certain articles were also recovered from the said car alongwith number plate of HR02G0660, which were also taken into possession. Rough site plan of the place of occurrence was prepared. Rough site plan of the place, where Indica Car no. Hr02G6060 was lying abandoned was also prepared.
DD No. 4A was recorded on 02/06/2003 on receipt of information from PS Janak Puri, according to which, some persons were arrested in case FIR no. 272/03, U/s. 399/402 IPC and 25 of Arms Act in PS Mehrauli. These were Amrish SC No. 137/1 2/26 Rana @ Gully, Rajesh @ Guddu, Prem Singh @ Babloo and Nazim and they had made disclosure statements of this case. This DD was handed over to SI Devender Singh for necessary action. Accused Rajeev Tyagi was arrested on 02/06/2003, whereas accused Prem Singh @ Babloo, Amrish Rana @ Gullu, Nazim Hussain Qureshi and Rajesh @ Guddu were arrested in this case on 05/06/2003. Personal search memo of accused Rajeev Tyagi was also prepared. Disclosure statements made by the accused persons in the said case i.e. of accused Amrish Rana, Prem Singh, Nazim and Rajesh @ Guddu were collected. One seizure memo of chain seized U/s. 102 Cr.P.C.was also collected. Currency notes of Rs. 15,000/ were taken into possession from accused Amrish Rana @ Gullu, which were seized U/s. 102 Cr.P.C. Photocopy of the same was collected. Copy of FIR was also collected with rough site plan and copies of the statements of witnesses.
In this case also, accused Amrish Rana @ Gullu, Rajesh @ Guddu, Prem Singh, Nazim and Rajeev Tyagi made disclosure statements. Accused Prem Singh also pointed out one shop, which he had taken on rent and where they had entered into criminal conspiracy to commit robbery. Pointing out memo of the same was prepared. Pointing out memo, as pointed out by accused Prem Singh of the place of robbery, was also prepared. Accused Prem Singh also pointed out the place, where Indica car was abandoned. Accused Amrish Rana, Nazim and Rajesh @ Guddu also pointed out the shop, where they had entered into the criminal conspiracy and about the place of robbery and also office of Indtek Cellular Company.
During investigation, statement of account from the bank was collected. Documents from the Indtek Cellur Company, Janak Puri, were also collected.
On 12/06/2003, accused Nazim got recovered two wheeler scooter No. DL3SS2303, LML Select, which was taken into possession in this case by preparing a memo. On the same day, from one Sanjay Yadav, Rs. 35,000/ were recovered, which were taken into possession by preparing a seizure memo. On 13/06/2003, Rs. 1.20 lac were recovered from one Ashok Kumar, which were taken SC No. 137/1 3/26 into possession in this case by preparing a seizure memo. On 17/06/2003, owner Sanjay Bhagat had handed over appointment letter of Rajeev, which was taken into possession. Photocopy of cashbook was collected.
Finger print report was also collected. Accused Amrish Rana, Prem Singh, Nazim and Rajesh @ Guddu refused to join the TIP proceedings, so, copies of the TIP proceedings were also collected. On completion of investigation, charge sheet was filed against accused Prem Singh @ Babloo, Rajesh @ Guddu, Amrish Rana @ Gullu, Nazim Hussain Qureshi and Rajeev Tyagi @ Sonu. Accused Gurjant Singh was declared proclaimed offender.
Case was committed to the Court of Session on 24/08/2004 and was received on 02/09/2004.
On 22/03/2005, charge U/s. 120B and U/s. 395 read with Section 120B of IPC was framed against all the accused persons to which they pleaded not guilty and claimed trial. Charge U/s. 412 IPC was framed separately against accused Nazim Hussain Qureshi and Rajeev Tyagi @ sonu, to which, each pleaded not guilty and claimed trial. Charge U/s. 395 read with Section 397 of IPC was framed against accused Rajesh @ Guddu, to which, he pleaded not guilty and claimed trial.
To prove its case, prosecution has examined PW1 to PW35 in all. Statements of accused persons recorded. They have denied the case of the prosecution and have stated that they are innocent and have been falsely implicated in this case.
In defence, accused Rajeev Tyagi examined DW1 Dayal Kumar Tyagi. During the proceedings, it was brought to the notice of the Court by accused Rajeev Tyagi @ sonu that accused Gurjant Singh, who was declared proclaimed offender in this case, has been arrested and lodged in District Jail Dharamshala, Kangra, Himachal Pradesh. So, SHO was directed to take necessary steps and supplementary chargesheet was filed, which was committed to this Court on 20/12/2011. Charge U/s. 120B and U/s. 395 read with Section 120B of IPC was SC No. 137/1 4/26 framed against accused Gurjant Singh, to which, he pleaded not guilty and claimed trial. The witnesses already examined were recalled and were examined and cross examined against accused Gurjant Singh.
During the proceedings, accused Rajesh @ Guddu was declared proclaimed offender.
I have heard learned APP for the State, learned defence counsel for the accused persons and have gone through the material placed on record with evidence adduced.
Findings qua offence U/s. 120B IPC and U/s. 395 read with Section 120B of IPC against accused Prem Singh, Amrish Rana, Nazim Hussain Qureshi, Rajeev Tyagi and Gurjant Singh:
Complainant Pradeep Tyagi has been examined as PW1. He has stated that in the year 2003, he was working in Indtek Cellular, who were distributors of Hutch company and their company was having office at C3/14, Janak Puri. He was working there as Marketing Executive. Sanjay Bhagat was the owner of the said company. On 09/05/2003, at about 11 a.m., their owner handed over a sum of Rs. 6,10,000/for depositing in Bank of Baroda, Community Centre, Janak Puri. So, he alongwith one of his colleague Rupender Sardarji started from their office on a motorcycle, which was being driven by Rupender and he was sitting as pillion rider. The currency notes were in a bag and he was holding the said bag. When they reached near Bharti College at about 11.30 a.m., one scooter make LML came from their right side and on the said scooter, there were two persons. Pillion rider of said scooter told them that they had hit the motorcycle with the Indica car. They told them that they had not hit any Indica car and while they were just again to start from there, one Indica car came from behind and the said car hit their motorcycle, due to which, they fell down. The bag containing currency notes also fell down at some distance from them.
SC No. 137/1 5/26
PW1 Pradeep Tyagi has further deposed that they immediately got up. The person, who was pillion rider on LML scooter, showed a gun and demanded the bag containing currency notes from him and threatened him to shoot them. Then the said person snatched the bag from him and threw the said bag containing currency notes in Indica car, which had hit their motorcycle. There were three persons in the Indica Car and one of them was driving the Indica car and one was sitting beside the driver seat and one of them was sitting in the rear seat. The bag was thrown in the rear seat of the Indica car.
PW1 Pradeep Tyagi has further deposed that Indica car left the spot and both the persons, who came on two wheeler scooter, also ran away from the spot in the same two wheeler scooter. He made a call to PCR. Police came there.
PW1 has further deposed that on 10/06/2003, he was called at Tihar Jail . He alongwith Rupender reached there but no TIP was held in Tihar Jail. PW1 Pradeep Tyagi has identified accused Nazim and Amrish Rana before the Court as the same persons, who had come in two wheeler scooter and had told that they had hit the Indica car. PW1 Pradeep Tyagi has further told that accused Nazim was driving the two wheeler scooter and accused Amrish Rana had shown pistol to them and had snatched the bag containing currency notes, which he had further thrown in the Indica car. PW1 Pradeep Tyagi has further identified accused Rajesh and Prem Singh as the same, who were present in the Indica car.
PW1 Pradeep Tyagi has further deposed that on 03/06/2003, he was present in his house and he was called in the PS. He pointed out the house of accused Rajeev Tyagi and has also identified him in the court. He has further deposed that accused Rajeev Tyagi is resident of his village.
As PW1 Pradeep Tyagi has not supported the case of the prosecution on all aspects, so, he has been cross examined on certain aspects by learned APP, wherein he has stated that sometimes, owner Sanjay Bhagat used to sign on the packets of currency notes, which had to be deposited in the bank and has further SC No. 137/1 6/26 admitted that currency notes recovered were sealed in a pullanda with the seal of "BSA" and were seized vide memo Ex.PW1/A. PW1 has stated that he does not remember whether the currency notes of Rs. 50/ amounting to Rs. 5000/ were recovered from the steel almirah on the pointing of accused Rajeev Tyagi from his house or whether the packet of said currency notes was bearing signatures of their owner Sanjay Bhagat.
PW1 Pradeep Tyagi has further admitted that at that time, owner Sanjay Bhagat was with them and his statement was recorded by the police Ex. PW1/B on 09/05/2003.
PW1 Pradeep Tyagi has denied the suggestion of Ld. APP that accused Rajesh is the same person, who had shown the gun and snatched the bag of currency notes and had thrown the same in the Indica car. PW1 has also denied that accused Amrish Rana is the same, who was sitting on the backseat of the Indica car. He has further stated that he cannot identify accused Prem Singh as to whether he was driving the Indica car on the day of occurrence. He has also not been able to identify the currency notes, which were recovered on the pointing of accused Rajeev Tyagi. Regarding the two wheeler scooter, he has stated that two wheeler scooter shown to him in the Court resembles the scooter, on which, accused persons came at the spot and snatched the bag from him.
PW1 has identified the Indica car No. HR02G0607 as Ex. P1. PW2 is Raja Rupender Singh. He has stated that in the year 2003, he was working as Marketing Executive in Intek Cellular, Janak Puri. On 09/05/2003, he was present in his office and owner of their company told them to deposit the cash amount in a bank at B1 Block, Janak Puri. So, he alongwith PW1 Pradeep Tyagi started from their company office with cash of Rs. 6,00,000/, which was in a handbag. It was being carried out by PW1 Pradeep Tyagi, who was working with him in the company. PW2 has further deposed that they started from their company office on a bullet motorcycle, which was belonging to him and he was driving the SC No. 137/1 7/26 same. PW1 Pradeep Tyagi was sitting behind with the bag. At about 11/11.15 a.m., when they reached on the road, near the district park of Janak Puri, two persons came on a two wheeler scooter and told them to stop the motorcycle as they had hit the Indica car and the said scooter had overtaken them and they slowed down their motorcycle,but he had not stopped his motorcycle and in the meanwhile, one Indica car hit his motorcycle from behind, due to which, motorcycle fell down. One of the occupant of the two wheeler scooter reached near them and had shown pistol to them. He threatened to fire on them, if they will not handover the bag containing the cash amount to them. The said person, who had shown the pistol to them, took the bag containing cash amount from PW1 Pradeep Tyagi and kept the same in Indica car. The occupants of the Indica car fled away from the spot with the cash. The scooterist also fled away from the spot on the same two wheeler scooter.
PW2 Raja Rupender Singh has further deposed that accused Nazim, present in the Court, was driving the said two wheeler scooter at the time of incident and accused Amrish Rana had shown pistol to them and snatched the bag containing the currency notes and kept the same in the Indica car. PW2 has not been able to identify the occupant of the Indica car, but has stated that so far as he recollects, accused Prem Singh was driving the Indica car at the time of occurrence. Again, this witness has also been cross examined by learned APP as he has not supported the case of the prosecution on certain aspects. In the cross examination conducted by Ld. APP, PW2 Raja Rupender Singh has denied that accused Rajesh, present in the court, was present at the time of incident and was seen by the witness. In further cross examination conducted by Ld. APP, PW2 has stated that accused Rajeev Tyagi was not present at the spot, at the time of incident. He was knowing accused Rajeev Tyagi, who used to work with them in the same company. PW2 has identified the Indica car No. HR02G0660 as Ex. P1 and his motorcycle bearing No. DL4SV3364 as Ex. P2.
So, according to PW1 Pradeep Tyagi, on two wheeler scooter, accused SC No. 137/1 8/26 Nazim and Amrish Rana came and he has identified accused Rajesh and Prem Singh as the same,who were present in the Indica car, but in the cross examination, PW1 has denied that accused Rajesh is the same, who had shown him gun and snatched the bag of currency notes and further, thrown the same in the Indica car and has further denied that accused Amrish Rana was sitting on the backseat of Indica car. Again, PW1 Pradeep Tyagi refused to identify accused Prem Singh, although earlier, he had identified accused Prem Singh as the same, who was sitting in the Indica car.
According to PW2 Raja Rupender Singh also, on two wheeler scooter, accused Nazim and Amrish Rana came. Accused Nazim was driving the two wheeler scooter. Accused Amrish Rana had shown the pistol to them and had snatched the bag containing currency notes and had kept the same in the Indica car. PW2 Raja Rupender Singh has stated that accused Rajeev Tyagi was not present at the spot. He has also not identified any other persons present at the spot or in the Indica car and has stated that he is unable to recollect as to whether accused Prem Singh was driving the Indica car at the time of occurrence.
Regarding the identification of accused Gurjant, PW1 Pradeep Tyagi has stated that he does not remember whether accused Gurjant Singh was sitting in the Indica car at the time of incident.
Learned defence counsel has contended that from the depositions of both these PW1 and PW2, prosecution has not been able to prove the identity of the accused persons as the same beyond reasonable doubts. It is further contended that PW2 Raja Rupender Singh has stated in the cross examination that he had come 45 times before the Court to depose in this case before 23/05/2005 and he had also seen the accused persons before his statement dated 23/05/2005. Learned defence counsel has further contended that in such circumstances, it was not the first time for PW2 Raja Rupender Singh to see the accused persons and he had seen the accused persons before 23/05/2005 also, so, after the incident, he had not seen and identified the accused persons before the Court for the first time during his examination. Learned SC No. 137/1 9/26 defence counsel has further contended that PW2 Raja Rupender Singh has stated in the cross examination that he did not see, who had lifted the bag after it had fallen down on the road and has further stated that he did not see, who was driving Indica car as he was concentrating on his driving, but when the money bag was snatched from him and was thrown in the car, he had seen accused Prem Singh in the car. Learned defence counsel has further contended that witnesses have given contradictory statement regarding the snatching of the bag and also about the identity of accused persons. Learned defence counsel has further contended that in his examination in chief and also in the cross examination, PW2 Raja Rupender Singh has stated that he did not see, who had lifted the bag after it had fallen down on the road. So, later on saying that the bag was snatched by accused Prem Singh is of no consequence. Learned defence counsel has further contended that PW2 Raja Rupender Singh in the examination in chief has stated that accused Prem Singh was driving the Indica car at the time of occurrence, whereas in the cross examination, he has stated that he had seen accused Prem Singh in the car, so witness is not inspiring confidence about the facts, as to who had snatched the bag and by whom, it was thrown in the Indica car. Learned defence counsel has further contended that accused Gurjant Singh has not been identified by PW2 Raja Rupender Singh in any manner.
PW1 Pradeep Tyagi has not identified accused Prem Singh as the same, who was driving the Indica car at the time of incident, so, identity of accused Prem Singh has not been proved beyond reasonable doubts.
PW1 Pradeep Tyagi has stated that two wheeler scooter was of chocolate colour, whereas PW2 Raja Rupender Singh has stated that two wheeler scooter was LML scooter of brown colour. So, identity of LML scooter, which has been identified by PW1 Pradeep Tyagi, resembling the same, on which, accused persons had come at the spot, is not proved.
According to statement of Pradeep Tyagi, on which, this case was registered, he had not named any accused persons and had told to the police that he SC No. 137/1 10/26 could identify the accused persons, if shown to him.
PW7 HC Kamlesh Kumar has stated that on 02/06/2003, he was posted at PS Janakpuri. On that day, he joined investigation of this case with SI Devender, Pradeep Tyagi and Sanjay Bhagat. They reached at PS Mehrauli, where four accused persons i.e. Prem Singh, Rajesh, Amrish Rana and Nazim Hussain were in custody. They were interrogated by the IO.
Learned defence counsel has further contended that according to the documents brought on record, accused persons were formally arrested in this case on 05/06/2003, whereas according to PW7 HC Kamlesh Kumar, accused persons had already been interrogated on 02/06/2003 in presence of PW1 Pradeep Tyagi and at that time, he came to know about the identity of the accused persons and accused persons were put to join TIP on 10/06/2003, which they refused. So, the identity of accused persons before the Court as the same by PW1 Pradeep Tyagi is of no consequence as he had already seen the accused persons in PS Mehrauli on 02/06/2003.
PW25 is SI Devender Singh. On receiving information regarding arrest of accused persons, he reached at PS Mehrauli and collected photocopies of disclosure statements of accused persons and seizure memos.
In the cross examination, PW35 SI Devender Singh has stated that he had gone to PS Mehrauli on 02/06/2003 after receiving the information about arrest of accused persons. He had seen the accused persons formally in muffled face, while they were being taken to produce before the Court on 02/06/2003. PW7 HC Kamlesh Kumar has nowhere deposed that he had seen the accused persons in muffled face in PS Mehrauli. Even PW7 HC Kamlesh Kumar and PW35 SI Devender Singh have contradicted as to who else had gone with them in PS Mehrauli. According to PW7 HC Kamlesh Kumar, PW1 Pradeep Tyagi and Sanjay Bhagat also accompanied them, which has not been stated by PW35 SI Devender Singh, which shows that accused persons were shown to them in PS Mehrauli after their arrest, so, their identity is not SC No. 137/1 11/26 proved beyond reasonable doubts in any manner and witnesses cannot be relied upon in any manner.
According to the depositions of the witnesses, two of the accused had come on two wheeler scooter, which has been identified by one of the witness i.e. PW1 Pradeep Tyagi resembling the same with the two wheeler scooter, on which, accused persons had come at the time of committing robbery, whereas PW2 Raja Rupender Singh has not been able to identify the two wheeler scooter.
According to PW14 Virernder Singh, Record Clerk, Transport Department, Sheikh Sarai, New Delhi, scooter LML No. DL3SS2303 is registered in the name of Zakir Hussain, son of Sh. Shabir Hussain and the particulars of the scooter are Ex. PW14/A. This witness Zakir Hussain has not been examined by the prosecution in any manner before the court to the extent that at any time, he had handed over this scooter to accused Nazim. During the course of arguments, learned APP has stated that said Zakir Hussain seems to be brother of accused Nazim. In my view, whatsoever it may be, but prosecution has to prove beyond reasonable doubts that at the time of incident, the scooter was in possession of accused Nazim, which the prosecution has not been able to prove in any manner. According to Ex.P W8/G, accused Nazim got recovered this two wheeler scooter from his house No. B104, J.J. Colony, Uttam Nagar, which was taken into possession in this case. There is no public witness to the seizure of the two wheeler scooter from the house of accused Nazim. According to the cross examination of PW8 HC Mahavir Singh, there were other houses of other persons in the gali, where the scooter was parked. Persons from those houses were called to join the investigation but they refused.
From this cross examination, it is clear that scooter was seized from the gali and not from the house of accused Nazim, as per seizure memo Ex. PW8/G. So, accused Nazim was not having any possession of the same in any manner, hence, it cannot be treated as recovery of two wheeler scooter , which was used in the robbery, at the instance of accused Nazim.
SC No. 137/1 12/26
One Indica car No. HR02G0607 was also taken into possession from the spot. According to statement of PW10 HC Ranbir, on 04/05/2003, he had inspected the scene of crime. He had also inspected the said Indica car and lifted eight chance prints from the spot. He also prepared his report Ex. PW3/A in this respect. Summoned record of that Indica car has been produced by PW15 Dinesh Kumar, Clerk SDM office, Registration Authority Jagadhari, Haryana. He has produced the record of TATA Indica car No. HR02G0660. According to the record, it was in the name of Veena Dutta, wife of sh. Shakti Dutta, R/o 1269, Professor Colony, Yamuna Vihar. It was transferred in the name of Jaswinder Singh and again, it was transferred in the name of Tayub and lastly on 22/02/2006, it was transferred in the name of Jaswinder Singh. Report in this respect is Ex. PW15/B. According to PW28 Jaswinder Singh, he used to drive taxi and on 06/05/2003, three boys hired his taxi i.e. Indica car No. HR02G0660 from Jagadhari to go to Pajokhara Sahab. He accompanied all the three boys and in the Indica Car, after reaching Barnala, they asked him to stop the car. Thereafter, they went by saying that they had to bring money from somebody. They were calling one of them in the name of "Keval". After about half an hour, those persons came back and again sat in his Indica car and asked him to leave at Ambala Cantt. When they again reached at Panjokhara Sahab near Asharam Bapu Ashram, he stopped the car and got down and started urinating. In the meanwhile, those persons took away his Indica car. He lodged the report at PS Panjokhara, District Ambala.
PW28 Jaswinder Singh has further deposed that on 10/05/2003, he came to know that his car was recovered from Janak Puri. On receipt of this information, he reached at PS Janak Puri on 13/05/2003 and identified his Indica car. His statement was recorded. PW28 has identified one of the accused, who had taken the car with his two other associates, as accused Amrish Rana. He has also produced the car and has identified the same as Ex. P2. PW28 has not been able to identify the remaining two boys, out of any of the accused persons, as the same, who had taken SC No. 137/1 13/26 his Indica car and even after further examination, after the arrest of accused Gurjant Singh as proclaimed offender, he has not been able to identify accused Gurjant Singh as one of the boy, who had taken the Indica car with other two persons and in the cross examination, he has stated that he had seen accused Gurjant Singh for the first time before the Court. He had not taken his taxi on hire.
According to PW27 retired SI Mahima Singh, he was working as duty officer on 09/05/2003 at PS Pajokhara, District Ambala and on receipt of rukka from HC Dhruv Singh, sent by ASI Satnam Singh, he recorded FIR No. 31/03, U/s 379 of IPC. Thereafter, he had handed over the copy of FIR to HC Dhruv Singh alongwith rukka to further handover the same to ASI Satnam Singh.
According to PW30 ASI Sukhdev Singh, on the said FIR no. 31/03, PS Panjokhara, District Ambala, on 07/05/2003, two of the accused persons have been chargesheeted, but third accused Gurjant Singh was declared proclaimed offender. On 05/04/2006, accused persons were convicted and released on the sentence already undergone by them. In further examination, PW30 has told the name of those two accused, who were convicted, as Rajesh @ Gullu and Amrish Rana. It is not known whether accused Gurjant Singh, who was declared proclaimed offender, was later on produced in the said case or not and what had happened to his case. Accused Rajesh @ Guddu is proclaimed offender in this case. So, only identity of accused Amrish Rana has been established to the extent that the said Indica car was taken by him with two other accused persons on 06/05/2003, which was found lying abandoned and was recovered on 09/05/2003.
Specimen palm print of accused Gurjant Singh, after his arrest as proclaimed offender, were taken by SI Narender Singh of PS Janak Puri. The same were sent to Finger Print Expert for examination with the questioned palm prints and according to PW22 SI Avdhesh Kumar, Finger Print Expert, S2 palm print of accused Gurjant Singh was identical with the chance print Q3 on the said Indica car, which was recovered from the spot on 09/05/2003.
SC No. 137/1 14/26
Assuming that accused Amrish Rana had taken the said Indica car on 06/05/2003 with other two associates from the possession of PW28 Jaswinder Singh and further assuming that one palm print of accused Gurjant Singh was also found in the Indica car, even then, it is not proved beyond reasonable doubts that the said Indica car was in possession of accused persons on 09/05/2003 at the time of robbery as depositions of PW1 Pradeep Tyagi and PW2 Raja Rupender Singh are not inspiring confidence about the identity of the accused persons because PW1 Pradeep Tyagi had seen the accused persons in PS Mehrauli, when they were arrested in some other case and PW2 Raja Rupender Singh had seen the accused persons 45 times in the Court during hearing of the case. It is not the case of the prosecution that for the first time, both witnesses have identified the accused persons before the Court and they had not seen the accused persons in between before identifying them before the Court during their depositions, so, they cannot be relied upon in any manner.
Accused Gurjant Singh has not been identified by PW1 Pradeep Tyagi as the same, who was sitting in the Indica car at the time of incident. PW2 Raja Rupender Singh has also not identified accused Gurjant Singh in any manner as one of the person sitting in the Indica car.
According to the judgment of learned ASJ dated 01/07/2004, in case FIR no. 272/03, PS Mehrauli, U/s. 399/402/34 IPC and 25 of Arms Act, accused Amrish Rana, Rajesh @ Guddu, Nazim and Prem have been acquitted, while observing that all the 9 witnesses were not present at the spot nor the accused persons were arrested in the manner described by the witnesses nor anything was recovered from the accused persons. Learned defence counsel has further contended that in such circumstances, the witnesses examined in this court regarding the arrest of accused persons in the said case of PS Mehrauli cannot be relied upon as Court has already disbelieved them and it has been observed that the accused persons were not apprehended and arrested in the manner, as deposed by the witnesses.
In support of his contentions, learned defence counsel has relied upon SC No. 137/1 15/26 2003(3) JCC 1358 titled as Mousam Singha Roy & ors. Vs. State of West Bengal, wherein it has been held that if the witnesses had improved their statements regarding identification of accused persons and if there were material contradictions and omissions in their depositions, then their depositions are liable to be discarded.
Learned defence counsel has further relied upon AIR 2005 Supreme Court 97 titled as State of Maharashtra Vs. Sanjay D. Rajhans, wherein it has been held that if there are two versions highly improbable and not inspiring confidence, then benefit of doubt has to be given to the accused.
Learned defence counsel has further relied upon 2007 (2) JCC 1003 titled as Surender Kumar & Anr. Vs. The State (NCT of Delhi), wherein it has been that where there is a reasonable doubt and when two incredible versions confront the Court, the Court should give benefit of the doubt to the accused and it is not safe to sustain conviction.
In view of above, the contentions of learned defence counsel are forceful and rendering the witnesses unreliable. Prosecution has not been able to prove the fact by leading any cogent evidence to the extent that all the accused entered into a criminal conspiracy to commit robbery. The accused persons are also not known to each other and there is no previous history of these accused persons having committed any crime together.
From the depositions of the witnesses, prosecution has also not been able to prove the identity of all the accused persons as the same, who had committed robbery on gun point and as testimonies of the witnesses regarding identity of the accused persons as the same are not inspiring confidence, they cannot be relied upon in this respect.
Accordingly, prosecution has not been able to prove offence U/s. 120B and U/s. 395 read with Section 120B of IPC beyond reasonable doubts, for which, accused Prem Singh, Amrish Rana, Nazim Hussain, Rajiv Tyagi and SC No. 137/1 16/26 Gurjant Singh are acquitted.
Findings qua offence U/s. 412 of IPC against accused Rajeev Tyagi:
According to PW1 Pradeep Tyagi, sometime Sanjay Bhagat, owner, used to sign on the packets of currency notes, which had to be deposited in the bank, but he does not remember whether currency notes of Rs. 50/, total Rs. 5000/, were recovered from the steel almirah on the pointing of accused Rajeev Tyagi from his house. He does not remember whether packet of said currency notes was bearing the signatures of their owner Sanjay Bhagat. PW2 Raja Rupender Singh is not a witness regarding recovery of Rs. 5000/ at the instance of accused Rajeev Tyagi.
According to PW7 HC Kamlesh Kumar, on 02/06/2003, he was posted at PS Janak Puri. On that day, he joined investigation with SI Davinder, PW1 Pradeep Tyagi and Sanjay Bhagat. They had gone to PS Mehrauli, where accused Prem Singh, Rajesh, Amrish Rana and Nazim Hussain were in custody. They were interrogated. Their disclosure statements were taken and IO came to know that main conspirator of the offence was accused Rajeev Tyagi. Then, they alongwith pubic witness PW1 Pradeep Tyagi and Sanjay Bhagat went to the house of accused Rajeev Tyagi at WZ18, village Budela, Vikas Puri, Delhi, where he was arrested vide memo Ex.PW7/A. His personal search was conducted vide memo Ex. PW7/B and he also made disclosure statement Ex.PW7/C. Thereafter, they came to police station via hospital. On the next day, accused was produced before the Court. He was taken into police custody. Accused Rajeev Tyagi led them to his house and got recovered Rs. 5000/ as his share from the robbed amount, from an almirah lying in the room of ground floor of his house. PW7 HC Kamlesh Kumar has further deposed that packet of currency notes was having one bank slip, on which, signatures of Sanjay Bhagat were available, which were identified by Sanjay Bhagat. The currency notes were seized vide memo Ex. PW1/A after sealing the same with the seal of DSO and on completion of proceedings, they came back to PS and accused was locked up and case property was deposited with MHC(M).
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According to cross of PW7 HC Kamlesh Kumar, when they reached at the house of accused Rajeev Tyagi, one person, aged about 5560 years, opened the door and none else was present except the said person. Arrest memo of accused was prepared at his house and he signed the same. Again, he has stated that family members of accused Rajeev Tyagi were present and after signing the arrest memo, he sat aside and IO had taken signatures of other family members on the arrest memo.
PW7 HC Kamlesh Kumar has not been able to state as to whether the lock of the almirah was opened by accused Rajeev Tyagi or not and if the almirah was lying unlocked, then the same cannot be treated as recovery on the pointing of accused Rajeev Tyagi. The family members of accused Rajeev Tyagi were present in the house and none of them has been examined as a witness to the recovery. During the examination of PW1 Pradeep Tyagi, these recovered currency notes have not been produced for identification as the same, which were recovered at the instance of accused Rajeev Tyagi, so, prosecution has not been able to prove the recovery of Rs. 5000/ on the pointing of accused Rajeev Tyagi.
PW35 SI Devender Singh has stated that in pursuant of his disclosure statement, he alongwith PW7 HC Kamlesh Kumar, complainant PW1 Pradeep Tyagi reached at the house of accused Rajeev Tyagi, where accused Rajeev Tyagi was identified by the complainant. He was arrested vide memo Ex. PW7/A. His personal search was conducted vide memo Ex. PW7/B. He also made disclosure statement Ex. PW7/C. Thereafter, accused was brought to PS Janak Puri and on the next day, he called Sanjay Bhagat, employer of Pradeep Tyagi and reached at the house of accused Rajeev Tyagi, who got recovered Rs. 5000/ after taking out from the almirah. The bundle of currency notes was having brown colour slip, on which, Sanjay Bhagat had put his signatures, at the time of handing over the notes to PW1 Pradeep Tyagi. On seeing the bundle of Rs. 5000/, Sanjay Bhagat had identified the bundle of notes as belonging to him, on the basis of signatures on slip. The pullanda of the recovered notes was prepared with the seal of DSO and was seized vide memo SC No. 137/1 18/26 Ex. PW1/A. PW7 HC Kamlesh Kumar and PW35 SI Devender Singh have not corroborated on certain material facts. PW7 HC Kamlesh Kumar has stated that on the next day, accused was produced before the Court and was taken into police custody, whereas PW35 SI Devender Singh has not stated that accused was produced before the court and police custody was obtained. PW7 HC Kamlesh Kumar has also not stated that Sanjay Bhagat was called on the next day. PW7 HC Kamlesh Kumar has also stated that currency note packet was having a bank slip, whereas PW35 SI Devender Singh has not stated so. He has stated that it was having some brown colour slip. So, the identity of currency notes as part of robbed amount itself is in dispute and the identity of the currency notes has not been proved beyond reasonable doubts.
In the cross examination, PW35 SI Devender Singh has stated that on 02/06/2003, in the evening time, complainant came in the PS to know about the progress of the case and he had called Sanjay Bhagat telephonically on 03/06/2003 at the PS. PW35 has further admitted that bundle of currency notes of Rs. 5000/ was having the slip of Bank of Baroda. The case of the prosecution is that PW1 Pradeep Tyagi and PW2 Raja Rupender Singh were going to deposit the amount in the bank, so, there could not be any bank slip on the currency notes before depositing the same in the bank and at the most, in house slip could be on the currency notes signed by the owner/employer and in the present case, the recovered currency notes were having slip of Bank of Baroda, which shows that the currency notes were not the same.
Owner/employer Sanjay Bhagat has been examined as PW19. He has stated that before depositing the cash, they used to fill up pay in slip and also used to affix slip on the packets of the currency notes with his signatures. He has further stated that accused Rajeev Tyagi was his employee and he had handed over the employment record to the police in this respect. PW19 has further deposed that on SC No. 137/1 19/26 03/06/2003, he joined investigation of this case with accused Rajeev Tyagi and PW1 Pradeep Tyagi and reached at the house of accused Rajeev Tyagi at Village Bhudela, from where, accused Rajeev Tyagi got recovered one packet of currency notes of Rs. 5000/, which were in the denomination of Rs. 50/. It was sealed in a pullanda with the seal of DSO and was seized vide memo Ex.PW1/A. PW19 has also identified the said currency notes of Rs. 50/ each, which were recovered from the possession of accused Rajeev Tyagi as Ex. P1.
In the cross examination, PW19 has stated that he does not remember whether accused Rajeev Tyagi was present in the house at the time of recovery. He does not remember whether the seizure memo was prepared at the house of accused Rajeev Tyagi or in the PS. He is unable to tell the details of house of accused Rajeev Tyagi, so, he cannot be relied upon to the extent that he had gone with the police party to the house of accused Rajeev Tyagi and currency notes of Rs. 5000/ were recovered from the possession of accused Rajeev Tyagi in his presence. PW19 has nowhere deposed that they were having any tiup with the bank and bank was supplying their slips to them, to be affixed on the currency note packets for depositing the same in the bank, which clearly shows that packet of currency notes of Rs. 5000/ was not the same part of the robbed amount.
The contentions of learned defence counsel are forceful and the same leading towards the conclusion that witnesses cannot be relied upon in respect of the recovery of currency notes of Rs. 5000/ from the possession of accused Rajiv Tyagi as part of the robbed amount. The witnesses have not been able to corroborate and depose about the identity of currency notes of Rs. 5000/ as the same being part of the robbed amount, so, prosecution has also not been able to prove the identity of the alleged recovery of currency notes of Rs. 5000/ from the possession or on the pointing of accused Rajiv Tyagi as the same, hence, accused Rajiv Tyagi is acquitted for the offence U/s. 412 of IPC.
SC No. 137/1 20/26 Finding qua offence U/s. 412 IPC against accused Nazim Hussain:
According to PW7 HC Kamlesh Kumar, on 02/06/2003, he was posted at PS Janak Puri. On that day, he joined investigation of this case alongwith SI Davinder, Pradeep Tyagi and Sanjay Bhagat. They reached at PS Mehrauli. Accused Prem Singh, Rajesh, Amrish Rana and Nazim Hussain were in custody. They were interrogated by the IO. Copies of disclosure statements were obtained. Thereafter, accused Rajiv Tyagi was arrested, who also made disclosure statement.
PW7 HC Kamlesh Kumar has further deposed that thereafter, they came back to PS via hospital. Next day, accused persons were produced before the court and their police custody was obtained. Accused Rajiv Tyagi got recovered Rs. 5000/ from his house and on 05/06/2003, he again joined investigation of this case. On that day, accused Prem Singh, Rajesh, Amrish Rana and Nazim were formally arrested. So, this witness has not deposed anything about the recovery of currency notes from the possession or on the pointing of accused Nazim Hussain except his formal arrest in this case.
According to PW35 SI Devender Singh, after obtaining the PC remand of accused persons, during investigation, they reached at H.No. K733, Mahipal Pur Extension, New Delhi, where accused Nazim Hussain pointed out the said house and told that it was house of one Ashok Kumar, to whom, he had given Rs. 1,30,000/, out of his share from the robbed amount. Pointing out memo in this regard was prepared Ex. PW8/E15. Thereafter, they reached at the house of one karan Singh, situated behind DC office, at Kapashera and again, accused Nazim Hussain pointed out the said house and told that one Sanjay was living there, to whom, he had given Rs. 35,000/, out of his share. At that time, Sanjay was present there and PW35 SI Devender made inquiries from him. Sanjay had also produced Rs. 35,000/, which were in the form of seven bundles of Rs. 50/denomination, containing slip of Bank of Baroda and having signatures of Sanjay Bhagat. These were sealed. Serial No. 1 to 7 were given to the bundles of currency notes. He also seized the same vide memo SC No. 137/1 21/26 Ex. PW8/F and Sanjay also signed as a witness alongwith one Jaiveer Yadav and HC Mahavir. Thereafter, they came back to PS and accused persons were locked up.
PW17 Sanjay Yadav has stated that he was knowing accused Nazim, who was running a meat shop in Rangpuri, and he used to supply chicken to him. Accused used to make payment on weekly basis and was owing Rs. 65,000/ towards him. In the year 2003, accused Nazim had paid him Rs. 35,000/, while he was residing in the house of one Karan Singh. Accused Nazim had given him seven packets of Rs. 50/ currency notes amounting to Rs. 35,000/. After about two months of the payment, police came to his poultry farm with accused Nazim and told that said money was part of the stolen money and the currency notes of Rs. 35,000/ were sealed in a pullanda. PW17 Sanjay Yadav has identified the photocopies of said currency note packets of Rs. 50/ each as Ex. P3 before the Court.
In the cross examination, PW17 Sanjay Yadav has stated that currency notes, which were given by accused Nazim, were not retained by him and were utilized in the business. Police had seized the currency notes of Rs. 35,000/ from him and directed him to arrange currency notes of Rs. 35,000/ in the shape of seven packets of Rs. 50/ each and he handed over the currency notes of Rs. 50/ each to the police having slip of Canara Bank. Accused Nazim had given him the currency notes, which were not having any slip of bank. He was taken to PS Janak Puri and asked to produce the currency notes. His brother Jaiveer Yadav came and handed over currency notes of Rs. 50/ each in seven packets to the police. In further cross examination, PW17 Sanjay Yadav has stated that accused Nazim had given him payment in different denominations of currency notes of Rs. 1000/, Rs. 500/, Rs. 100/ and Rs. 10/.
Under such circumstances, recovery of Rs. 35,000/ on the pointing of accused Nazim from PW17 Sanjay Yadav is doubtful as payment was made on 11/05/2003 and the alleged recovery was effected on 12/06/2003. PW17 Sanjay Yadav has stated that he had utilized the payment made by accused Nazim, so, the SC No. 137/1 22/26 currency notes seized in this case as part of robbed amount are not the same, hence, it is not proved in any manner that recovered currency notes are the same, which were robbed as per the case of the prosecution.
PW18 Jaiveer Yadav has also stated that accused Nazim had paid Rs. 35,000/ on 11/05/2003 to his brother PW17 Sanjay Yadav and after about two months of the said payment, police came to their house on 12/06/2003 with accused Nazim and his brother produced seven packets of currency notes of Rs. 50/ each, which were taken into possession. PW18 has also identified the said currency notes as Ex. P3 before the Court. Again in the cross examination, PW18 has stated that he cannot say whether accused Nazim Hussain had given payment in the shape of seven packets of Rs. 50/ each. When police came with accused Nazim in their house, they took his brother Sanjay Yadav i.e. PW17 to PS Janakpuri. After sometime, he received message from PS Janak Puri to deposit the amount of Rs. 35,000/. He arranged Rs. 35,000/ from one of his relative and handed over the same to the police in the PS. So, again, PW18 Jaiveer Yadav has also not supported the case of the prosecution in any manner and has failed to prove the identity of the currency notes recovered from PW17 Sanjay Yadav as the same, which were robbed as per the case of the prosecution.
PW8 HC Mahavir Singh has deposed the same facts regarding recovery of Rs. 35,000/ as of PW35 SI Devender Singh. PW8 HC Mahavir Singh has stated in the cross examination that he cannot say as to from where the bundles of currency notes were produced by Sanjay. The notes were not in any bag or packet, but they were in loose condition. So, the cross examination of PW8 HC Mahavir Singh is also contradictory to the deposition of PW17 Sanjay Yadav, PW18 Jaiveer Yadav and PW35 SI Devender Singh, who have stated that currency notes in the form of seven packets of Rs. 50,000/ each were taken into possession. If the currency notes were in loose condition, then there could not be any slip of Bank on the currency note packets, so, it seems to be doubtful whether the currency notes of Rs. 35,000/ taken SC No. 137/1 23/26 into possession in this case from the possession of PW17 Sanjay Yadav stated to be given by accused Nazim to him, were part of the robbed amount. In the cross examination, PW35 SI Devender Singh has stated that as per the case, the currency notes were being taken to deposit in the bank, which were having bank slips on the packets. Again, it is not explained as to how the slips of Bank could appear on the currency note packets before depositing the same in the bank. Nothing has been brought on record to prove that slips of Bank of Baroda were available in advance with complainant Sanjay Bhagat and slips were being affixed on the currency note packets in his office and thereafter, the currency note packets were used to be deposited in the bank. Under such circumstances, the recovery of Rs. 35,000/ as part of the robbed amount from the possession of witness Sanjay Yadav i.e. PW17 cannot be relied upon due to the identity of the currency notes itself.
PW35 SI Devender Singh has further deposed that accused Nazim had also led the police party to the house of one Ashok Kumar at K733, Mahipal Pur Extension, New Delhi, where Ashok Kumar was found present, who told that on 11/05/2003, accused Nazim had given him Rs. 1,20,000/ from his share, from the robbed amount. Ashok Kumar had also produced the said currency notes in the denomination of one bundle of Rs. 500/, five bundles of Rs. 100/ and four bundles of Rs. 50/ and serial numbers were given to packets and were sealed in pullandas. Three bundles of Rs. 100/ denomination were containing slip of Bank of Baroda. The currency notes were taken into possession vide memo Ex. PW8/H. In this respect, PW24 Ashok Kumar has stated that about eight years back, two police officials came to his house. He was taken to PS Janak Puri. He was told that accused Nazim had committed robbery and he had given Rs. 1,20,000/ to him. He refused and told that accused Nazim had given nothing to him. He was asked to provide money of Rs. 1,20,000/ and was threatened to be implicated in the dacoity. He called his father in law and his father, who collected money from the relatives and some places and handed over Rs. 1,20,000/ to the police. Thereafter, he SC No. 137/1 24/26 was released. He was knowing accused Nazim as accused Nazim was having a meat shop in Mahipalpur and he used to purchase meat from his shop.
PW24 Ashok Kumar has not supported the case of the prosecution, so, he has been cross examined by learned APP, wherein again, he has refused that he was having any business relations with accused Nazim and has also denied that he had given any statement to the police to the effect that he had given a loan of Rs. 2 lacs to acused Nazim and accused Nazim had returned Rs. 1,20,000/ to him.
Another witness is PW20 Virender Singh. He has stated that he was knowing one Ashok Kumar, being his relative. On 13/06/2003, he was present with Ashok at his house in Mahipalpur. Police came to the house of Ashok Kumar with one or two accused persons and made inquiries. Ashok pointed out some money to the police, which was in the shape of one packet of Rs. 500/ denomination, some currency notes of Rs. 100/ and some currency notes of Rs. 50/, which were sealed in pullanda and were seized vide memo Ex. PW8/H. PW20 Virender Singh has also not supported the case of the prosecution, so, he has been cross examined by learned APP, wherein he has admitted the facts as per the case of the prosecution, but in the cross examination, he has stated that cannot identify the person, who was brought to the house of Ashok. He has further stated that Ashok had told to the police that he had given money to some meat seller. So, again, if the money was given to the meat seller, then the recovered money could not be the same, which the prosecution is relying as part of the robbed amount and again, the identity of these currency notes is also doubtful.
The contentions of learned defence counsel are forceful and the same leading towards the conclusion that witnesses cannot be relied upon in respect of the recovery of currency notes of Rs. 35,000/ and Rs. 1,20,000/ on the pointing of accused Nazim Hussain as part of the robbed amount. The witnesses have not been able to corroborate and depose about the identity of currency notes of Rs. 35,000/ and Rs. 1,20,000/ as the same being part of the robbed amount, so, prosecution has SC No. 137/1 25/26 also not been able to prove the identity of the alleged recovery of currency notes of Rs. 35,000/ and Rs. 1,20,000/ on the pointing of accused Nazim Hussain as the same, hence, accused Nazim Hussain is acquitted for the offence U/s. 412 of IPC.
Announced in the open court (Virender Kumar Goyal)
today on 11th of July, 2013 Additional Sessions Judge
Fast Track Court, Rohini Courts,Delhi.
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