Delhi District Court
Sc No. 57828/16; Fir No.27/12; Ps. ... vs . Rajesh Kumar @ Toni & Ors. Page No. 1 Of 47 on 29 January, 2019
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IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
STATE CASE No..........................57828/16
FIR No. 27/12
PS Sultan Puri
U/s: 307/392/394/397/411/34 IPC
State
Versus
1. Rajesh Kumar @ Toni
S/o Sh. Ramesh Kumar,
R/o H. No. 1A/364, Indira Jheel,
Sultan Puri, Delhi.
2. Rajeev Kumar @ Appu
S/o Sh. Ramesh Kumar,
R/o H. No. 1A/364, Indira Jheel,
Sultan Puri, Delhi.
3. Surender Kumar @ Sonu
S/o Sh. Raghubir Singh
R/o H. No. S/17, Friends Enclave,
Near G Block, Sultan Puri, Delhi.
Also at;
Flat No. 473/24, Sector20,
MCD Flat, Rohini Extn., Delhi.
4. Alam @ Parvez Ahmad
S/o Sh. Aziz Ahmad,
R/o H. No. A564, Camp No. 2
Nangloi, Delhi.
SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 1 of 47
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Date of institution: 05.06.2012
Judgment reserved on: 10.01.2019
Judgment delivered on: 29.01.2019
ORDER/JUDGMENT: All the accused persons namely Rajesh
@ Toni, Rajiv @ Appu, Surender @
Sonu and Parvez Alam stand convicted
u/S. 394 read with Section 392/34 &
307/34 IPC. In addition to that, accused
Rajesh @ Toni is also individually
convicted u/S. 397 IPC. Similarly, the
accused Parvez Alam is also
individually convicted u/S. 397 IPC.
JUDGMENT
1. Brief facts, as stated in the chargesheet are that on 17.01.2012, DD No. 31A was marked to SI Badami Lal. The contents of the said DD are as under:
"That at about 10:40 pm, SI Kishan Lal from PS Aman Vihar has given information over telephone that at near Hari Singh Gas Agency, Kirari, Aman Vihar police station, two boys over bike robbed godown keeper and snatched his bag and ran away and also made firing, there is no injured".
2. Accordingly, SI Badami Lal alongwith Ct. Kailash went to the place of occurrence, where they found one motorcycle no. DL8SAG 4532, one mirchi powder packet lying at near B58, Suleman Kirari, SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 2 of 47 -3- the broken helmet of victim was also found lying over there. It was revealed to the aforesaid police officials that injured Surjan Singh had been taken to SGM hospital in a PCR van.
At the spot, they met caller Joginder Singh, the gas agency owner. SI Badami Lal left Ct. Kailash at the spot and went to SGM hospital, Mangol Puri, where he collected the MLC of Surjan Singh, who was opined unfit for statement. No eye witness met SI Badami Lal at the said hospital. Thereafter, SI Badami Lal returned back to the spot and on the basis of contents of DD No. 31A and MLC, he prepared rukka for the offences punishable u/s 307/392/394/397/34 IPC and handed over the said rukka to Ct. Kailash, who got the FIR registered. SI Badami Lal also called the crime team at the spot and got the spot inspected from crime team officials. He also recorded the statement of eye witness Saroj Kumar Mishra.
3. During investigation, SI Badami Lal also recorded the statement of Surjan Singh. On 20.01.2012, accused Rajesh @ Toni and Rajeev @ Appu were arrested in case FIR No. 31/12 u/s 186/353/307/34 IPC & 25/27 Arms Act registered at PS Sultan Puri and both the said accused persons made disclosure statements thereby disclosing their involvements in the commission of offence(s) in the present case.
During investigations IO SI Badami Lal, effected the arrest of aforesaid accused persons in the present case and also effected the SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 3 of 47 -4- arrest of accused Surender Kumar @ Sonu. During investigation, robbed calculator was recovered from the possession of accused Suender Kumar @ Sonu. All the aforesaid three accused persons refused to participate in judicial TIP and after completion of investigation, chargesheet was filed against them.
4. During the course of further investigation, accused Parvez Alam @ Parvez Ahmad was declared proclaimed offender on 25.07.2012 and he was arrested as proclaimed offender on 14.04.2013 by PO staff. IO has effected the arrest of accused Parvez Alam in the present case. During police custody remand, the keys of godown were got recovered by accused Parvez Alam from his house. Accused Parvez Alam also refused to participate in judicial TIP and accordingly supplementary charge sheet qua him was also filed.
5. On committal of the case to the Court of Sessions, vide detailed order dated 06.07.2012, a charge(s) for offence(s) u/s 392/394/307/34 IPC were framed against accused Rajesh @ Toni, Surender Kumar @ Sonu and Rajiv Kumar @ Appu. An alternative charge(s) for offence(s) u/s 411 IPC was also framed against accused Surender @ Sonu to which they pleaded not guilty and claimed trial.
Thereafter, on 19.12.2013, separate charge(s) for offence(s) punishable u/s 392/394/307/34 IPC as well as a separate charge(s) SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 4 of 47 -5- for offence(s) u/s 397 IPC was also framed against accused Parvez Alam @ Parvez Ahmed to which he pleaded not guilty and claimed trial.
6. Thereafter, prosecution in support of its case has examined 28 witnesses :
a) PW1 is Sh. Saroj Kumar Mishra who has deposed that he was a permanent resident of village Akhtiyarpur, PS Sarai Ranjan, Distt.
Samastipur, Bihar and he was still working as cashier and godown incharge at RZ914, Hari Singh Gas Agency, Kirari, Suleman Nagar, Prem NagarI. He was working there since 2000. He also deposed that on 17.1.2012, after finishing their work, he along with Surjan Singh who was working as delivery man in their godown had left their godown on the motorcycle make Splender of Surjan Singh.
He also deposed that the said motorcycle was being driven by Surjan Singh and he was pillion rider. He has also deposed that he was having his office bag containing three registers of their office, one calculator make Citizen, one spectacle, key of godown and cash of Rs.17001800. At about 9.45 pm, when they reached in front of Dhakkan Factory, they saw 4 boys standing outside that factory.
He has also deposed that when their motorcycle passed through, the said four boys all of sudden came near to them and SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 5 of 47 -6- one of those boys threw chilly powder in the eyes of Surjan Singh and the other boy pushed their motorcycle due to which they fell down and the third boy hit a piece of brick on the head of Surjan Singh who was wearing helmet at that time. Due to the pelting of piece of brick the helmet was broken. He has also deposed that when they fell down, one of the boy fired targeting Surjan Singh and the fourth boy who was armed with knife pointed knife towards him and the said fourth boy snatched the bag from him. Thereafter, all the four boys ran away from the spot.
He has also deposed that he saw that Surjan Singh was bleeding and on seeing the same, he informed from his mobile to Manager Sh. Joginder Singh and agency owner Sh. Ranbir Singh Dabas. After some time PCR van came to the spot and took them to SGM hospital. Surjan Singh was admitted into the hospital, whereas he was not admitted in the hospital, as he had not sustained any injury and he came to his house. He has also deposed that on the next date at about 3 pm police came to his godown and took him to the spot, where police prepared the site plan Ex. PW1/A of place of occurrence at his pointing out and police also recorded his statement.
He has also deposed that on 22.1.2012 he had reached at PS Sultanpuri after coming to know that the accused persons who had caused the occurrence with them had been apprehended and at that time, three persons were present in the PS and they were SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 6 of 47 -7- taking meals. On seeing those persons, he told the police that those three persons were amongst those four persons who were involved in the incident. He has also deposed that at that time on seeing one of them, he also told to the police that he was the same person, who threw chilly powder into the eyes of Surjan Singh and he came to know his name as accused Rajiv Kumar. On seeing the other boy he told to police that he was the same person who had pushed their motorcycle, and later on had fired upon Surjan Singh when he fell down and his name was revealed as accused Rajesh Kumar.
On seeing the third boy he told to police that he was the same person who had hit with a piece of brick on the head of Surjan Singh and his name was revealed as accused Surender Kumar @ Sonu. He also identified accused persons during his deposition. He has also deposed that on 18.03.12, in pursuance of notice u/s 91 Cr.P.C. issued by police to him, he had given reply to the police in writing and at that time he had also submitted the photocopies of his Icard as well as of Surjan Singh. He exhibited the said reply as ExPW1/B. He also identified the photocopies of I Cards as Mark A and Mark B which he had handed over to the police. He has also deposed that on 26.3.12, as per direction of IO, he had reached at Rohini court before a Magistrate, where he had identified his calculator among many other calculators. At that time he had also SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 7 of 47 -8- signed the TIP proceedings. He exhibited the said proceedings as Ex. PW1/C. He has also deposed that after the arrest of accused Parvez Alam, he visited the Rohini Jail to participate in TIP proceedings, but he came to know that accused Parvez Alam had refused to participate in TIP proceedings. He also deposed that once he appeared before Ld. MM, where he identified the bunch of keys in the TIP proceedings.
He exhibited the said proceedings as Ex. PW1/B. He also identified accused Parvez Alam being the same person, who had used the deadly weapon i.e. knife at the time of commission of robbery on 17.01.2012 along with accused persons Rajesh, Rajiv @ Pappu and Surender @ Sonu.
b) PW2 is Ct. Nagraj, who was a member of raiding party constituted on 20.01.2012 by SI Dhirender. He deposed that on that day, accused Rajesh @ Toni, Rajeev @ Appu were apprehended and then arrested in case FIR No. 31/12, PS Sultan Puri for offence(s) u/s 186/353/307/34 IPC & 25/27 Arms Act. He also deposed that both the said accused persons got arrested. Accused Surender @ Sonu whose arrest was effected vide memo Ex. PW2/A and his personal search was conducted vide memo Ex. PW2/B. He also deposed that accused Rajeev @ Appu and Rajesh @ Toni were arrested by IO SI Badami Lal vide arrest memo Ex.
SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 8 of 47 -9- PW2/C and Ex. PW2/D and their personal search were conducted vide memos Ex. PW2/E and Ex. PW2/F and their disclosure statements Ex. PW2/G and Ex. PW2/H were recorded. He also exhibited the place where accused Rajeev and Rajesh burnt three registers, chashma and bag and IO had seized the tasla vide memo Ex. PW2/I. He also deposed that accused Surender @ Sonu got recovered one black colour calculator make Citizen from inside his house which was seized vide seizure memo Ex. PW2/J.
c) PW3 is Dr. S. K. Jain who deposed that on 18.01.2012 he had medically examined patient Surjan Singh, who was diagnosed with bullet injury left side chest. He exhibited the discharge summary of Surjan Singh prepared by Dr. Sanjeev as Ex. PW3/A. He also opined the nature of injuries on MLC Ex. PW3/B as dangerous.
d) PW4 is Dr. Binay Kumar, who deposed that on 17.01.2012 he had medically examined injured Surjan Singh vide MLC No. 0694 Ex. PW4/A. After examination, he had referred the patient to SR surgery for further opinion and management.
e) PW5 is Sh. Surjan Singh, who has deposed that he was working in Hari Singh Gas Agency at RZ914, Kirari, Prem Nagar as delivery man and was also looking after godown. On 17.1.12, he along with cashier Saroj Kumar Mishra were going on his SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 9 of 47 -10- motorcycle bearing no.DL8SAG4532. He was driving and Saroj Kumar Mishra was sitting on pillion seat. He has also deposed that at about 9.45 pm when they reached at a distance of about 100 mts. from the gas agency, on the turn they saw four persons were standing, drizzling was going on at that time and he was driving the motorcycle slowly. One of the four boy who was standing there had put something on him and he felt that it was chilly powder. One of them had pushed his bike. He and Saroj Kumar Mishra fell down, he tried to stand up. One of them had given brick blow on his head.
He has also deposed that he again fell down and one of them had fired upon him and bullet hit near his chest. Thereafter, he became unconscious. He regained his consciousness in the Maharaja Agarsen Hospital. He also pointed out towards accused Rajiv and deposed that accused Rajiv had put chilly powder in his eyes. He also pointed out towards accused Rajesh and deposed that accused Rajesh had pushed his bike and also fired upon him. He has also pointed out towards accused Surender and deposed that accused Surender had given brick blow on his head.
He has also deposed that after the arrest of accused Parvez Alam, he visited the Rohini Jail to participate in TIP proceedings, but he came to know that accused Parvez Alam had refused to participate in TIP proceedings. He also identified accused Parvez Alam being one of the associate of accused Rajesh, Rajiv @ SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 10 of 47 -11- Pappu and Surender @ Sonu and deposed that on the day of incident when Rajesh @ Toni fired a bullet upon him and robbed the articles from Saroj Kumar Mishra. He also deposed that after receiving the bullet injury on his left side chest, he fell unconscious.
f) PW6 is Dr. Brijesh, who had examined injured Surjan Singh and took blood samples and sealed the said blood samples of Surjan Singh with the seal of SGMH and handed over the same to IO. He also prepared MLC Ex. PW6/A in this regard.
g) PW7 is HC Yashpal, who deposed to have joined investigation on 20.01.2012 along with HC Narender Singh, ASI Jagdish Singh and SI Dhirender and has also deposed that on the basis of secret information apprehended accused persons Rajesh @ Toni and Rajiv @ Pappu and thereafter both accused persons were arrested in case FIR No. 31/12, PS Sultan Puri u/s 307/186/353/34 IPC and 25 Arms Act by SI Sandeep.
He also deposed that accused Rajesh @ Toni made disclosure statement Ex. PW7/K, and accused Rajiv @ Pappu made disclosure statement Ex. PW7/L as well as disclosure statements Ex. PW7/M and Ex. PW7/N respectively. He also deposed that on 20.01.12 it was informed to SI Badami Lal that accused Rajesh @ Toni and accused Rajiv @ Pappu had been arrested in case FIR No. 31/12 u/s. 186/353/307/34 IPC and 25/27 Arms Act registered at PS Sultan Puri. On the same day, SI Badami Lal had collected SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 11 of 47 -12- the relevant documents from SI Sandeep and SI Badami Lal had interrogated accused Rajesh @ Toni and accused Rajiv @ Pappu at PS Sultan Puri and effected the arrest of accused Rajesh vide arrest memo Ex.PW2/D and of accused Rajiv @ Pappu vide arrest memo Ex.PW2/B and recorded disclosure statements Ex.PW7/M and Ex.PW7/N, respectively.
He also deposed that on the same day at the instance of accused Rajesh @ Toni and accused Rajiv @ Pappu, SI Badami Lal along with police officials managed to apprehend accused Surender @ Sonu from Shani Bazar Road, G Block Sultan Puri. After interrogation, SI Badami Lal effected the arrest of accused Surender vide arrest memo Ex.PW2/A and his personal search was conducted vide Ex.PW2/B and recorded his disclosure statement Ex.PW7/O. He further deposed that during investigations accused Rajesh @ Toni, Rajiv @ Pappu and Surender @ Sonu lead them to the place of occurrence and pointed out the said place vide pointing out memo Ex.PW7/P. Thereafter, all three accused persons lead them to the house of accused Surender i.e. at H.No. 5/17, Friend Colony, Near G Block, Sultan Puri and accused Surender Kumar picked up one calculator from the bed of room of his house. SI Badami Lal had kept the said calculator in a cloth pullanda and said pullanda sealed with the seal of BL and seized the same vide memo Ex.PW2/J. He also deposed that during police custody remand SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 12 of 47 -13- accused Rajesh @ Toni, Rajiv @ Pappu and Surender @ Sonu on 22.01.12 lead them to the roof of house no. 1A364, Indira Jheel, Sultan Puri and pointed out towards one iron tasla and stated that they burnt the registers etc. in the said tasla. SI Badami Lal had seized the same vide seizure memo Ex.PW2/I.
h) PW8 is HC Narender who deposed to have joined investigations on 20.01.2012 along with HC Yashpal, ASI Jagdish Singh and SI Dhirender and has also deposed that on the basis of secret information apprehended accused persons Rajesh @ Toni and Rajiv @ Pappu and thereafter both accused persons were arrested in case FIR No. 31/12, PS Sultan Puri u/s 307/186/353/34 IPC and 25 Arms Act by SI Sandeep. He also deposed that accused Rajesh @ Toni made disclosure statement Ex. PW7/K, and accused Rajiv @ Pappu made disclosure statement Ex. PW7/L.
i) PW9 is ASI Jagdish who deposed to have joined investigation on 20.01.2012 alongwith HC Yashpal, HC Narender and SI Dhirender and has also deposed that on the basis of secret information apprehended accused persons Rajesh @ Toni and Rajiv @ Pappu and thereafter both accused persons were arrested in case FIR No. 31/12, PS Sultan Puri u/s 307/186/353/34 IPC and 25 Arms Act by SI Sandeep. He also deposed that accused Rajesh @ Toni made disclosure statement Ex. PW7/K, and accused Rajiv @ SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 13 of 47 -14- Pappu made disclosure statement Ex. PW7/L.
j) PW10 is Ct. Prakash Chand, who on 27.03.2012 took the exhibits I.e two sealed pulandas sealed with the seal of SGMH Mangol Puri alongwith one sample seal vide RC No. 51/21/12 and deposited the same at FSL Rohini.
k) PW11 is SI Ranbir who deposed that on 17.01.2014 he was posted as incharge L41 PCR Van with driver ASI Manoj Kumar. On receipt of information from the control room, he reached D58, Kirari near Suleman Nagar and found injured Surjan, who was shifted to SGM hospital and was admitted there.
l) PW12 is Ct. Lalit Kumar i.e. CIPA Operator who deposed to have typed FIR Ex. PW12/A on a computer and also issued certificate Ex. PW12/B u/s 65B of Indian Evidence Act.
m) PW13 is Ct. Kailash Chand who deposed to have joined investigations with SI Badami Lal on 27.01.2012 and accompanied SI Badami Lal to the place of occurrence on receipt of DD No. 31A Ex. PW13/A. He also deposed that in his presence SI Badami Lal seized broken helmet and motorcycle no. DL8SAG4532 vide seizure memo Ex. PW13/B and chilly powder packet after sealing vide seizure memo Ex. PW13/C. He also deposed to have got the SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 14 of 47 -15- FIR registered.
n) PW14 is Inspector Anil Kumar i.e. incharge Mobile Crime Team who on 17.01.2012 had inspected the spot and prepared crime team report Ex. PW14/A.
o) PW15 is HC Devender Singh i.e. Duty Officer, who recorded the information regarding the occurrence vide DD No. 31A Ex. PW13/A.
p) PW16 is HC Hardev i.e. duty officer who on 17.01.2012 recorded DD No. 38A, 39A and 40A respectively Ex. PW16/A, Ex. PW16/B and Ex. PW16/C respectively.
q) PW17 is HC Harish Kumar I.e Mobile Crime Team photographer who on 17.01.2012 had taken 11 photographs of the place of occurrence and exhibited the said photographs as Ex. PW17/A (colly) and their negatives as Ex. PW17/B (colly).
r) PW18 is SI Dhirender who deposed to have joined investigations on 20.01.2012 alongwith HC Yashpal, HC Narender and ASI Jagdish and has also deposed that on the basis of secret information, they apprehended accused persons Rajesh @ Toni and Rajiv @ Pappu and thereafter both accused persons were SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 15 of 47 -16- arrested in case FIR No. 31/12, PS Sultan Puri u/s 307/186/353/34 IPC and 25 Arms Act by SI Sandeep.
He also deposed that accused Rajesh @ Toni made disclosure statement Ex. PW7/K, and accused Rajiv @ Pappu made disclosure statement Ex. PW7/L. He also exhibited the sketch of country made pistol and knife as Ex. PW7/A and Ex. PW7/B and their seizure memos Ex. PW7/E and Ex. PW7/F and their sketches as Ex. PW7/C and Ex. PW7/D. He also exhibited the seizure memo of the country made pistol, live cartridge and knife as Ex. PW7/G and Ex. PW7/H. He also exhibited the seizure memo of black colour bag and some clothes recovered from the possession of accused Rajeev @ Appu as Ex. PW7/J.
s) PW19 is HC Gobind Singh i.e. MHC(M) who has exhibited entry in register no. 19 at serial no. 11385/12 as Ex. PW19/A, at serial no. 11392/12 as Ex. PW19/B, entry at serial no. 11458/12 as Ex. PW19/C. He also produced register no. 21 and exhibited RC No. 51/21/12 as Ex. PW19/D and acknowledgment as Ex. PW19/E.
t) PW20 is SI Sandeep, who deposed that on 20.01.2012, after the registration of FIR, the investigations of the case FIR No. 31/12, PS Sultan Puri was marked to him and he along with Ct. Yashpal reached at the spot, where he met SI Dhirender and other police officials. SI Dhirender produced accused Rajesh @ Toni and Rajiv SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 16 of 47 -17- @ Pappu before him and also handed over exhibits in sealed condition as well as memos to him. He recorded the disclosure statement Ex. PW7/K of accused Rajesh @ Toni, Ex. PW7/L of accused Rajiv @ Pappu.
u) PW21 is ASI Devender, who deposed that on 14.04.2013 while he alongwith Ct. Karan Singh were present at Inder Enclave Nithari Village, there one informer met him and gave an information regarding proclaimed offender i.e. accused Parvez Alam. They reached at shani bazar and on the pointing out of informer, apprehended accused Parvez Alam and effected his arrest vide arrest memo Ex. PW21/A and prepared kalandara Ex. PW21/B u/s 41.1(c) Cr.P.C.
v) PW22 is Ct. Karan Singh, who deposed that on 14.04.2013 while he alongwith ASI Devender were present at Inder Enclave Nithari Village, there one informer met ASI Devender and gave an information regarding proclaimed offender i.e. accused Parvez Alam. They reached at shani bazar and on the pointing out of informer, apprehended accused Parvez Alam and effected his arrest vide arrest memo Ex. PW21/A (PW22/A) and accused Parvez Alam made disclosure statement Ex. PW22/B. He also deposed that police custody remand of said accused was obtained and during police custody, accused Parvez Alam got SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 17 of 47 -18- recovered bunch of keys of big and small sizes which were seized after sealing vide seizure memo Ex. PW22/C. He also deposed that IO prepared memo Ex. PW22/D of the place of said recovery.
w) PW23 is Sh. Vipin Kharab, the then Ld. MM, Rohini Court, who deposed to have conducted judicial TIP of bunch of keys and exhibited the said proceedings as Ex. PW1/D. He also exhibited the certificate issued by him as Ex. PW23/A.
x) PW24 is Ms. Seema Nain, Assistant Director (Biology), who on 27.03.2012 examined the exhibits biologically and serologically and prepared reports Ex. PW24/A and Ex. PW24/B. y) PW25 is SI Kishan Lal, who deposed that on 17.01.2012 he was posted at PP Prem Nagar, PS Aman Vihar and at about 10:07 pm, he received a message on wireless that firing incident and snatching of bag had taken place at Hari Singh Gas Agency behind Hanuman Dharam Kanta. On receipt of said information, he reached there. He found the said area under the jurisdiction of PS Sultan Puri, hence he sent the message to the said PS. From the said PS, SI Badami Lal and one Ct. reached at the spot.
z) PW26 is Sh. M. A. Rizwi, the then Addl. DCP1, Outer District, who deposed to have accorded sanction u/s 39 Arms Act Ex.
SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 18 of 47 -19- PW26/A for prosecution of accused Rajiv @ Appu u/s 25 Arms Act.
a1) PW27 is Sh. Puneet Puri, who deposed to have examined the exhibits and prepared ballistic report Ex. PW27/A. He has also identified the signatures of Sh. N. P. Waghmare on FSL report Ex. PW27/B. a2) PW28 is SI Badami Lal, who is the IO of this case and has deposed regarding the investigations, as were carried out by him in the present case. PW28 has also exhibited the memos prepared by him during the course of investigation.
During the course of trial, the accused persons made a joint statement to the effect that they are not disputing the factum of judicial TIP conducted by Sh. Sachin Gupta, the then Ld. MM. Accordingly, Ld. Addl. PP for the State tendered the said TIP proceedings and exhibited the said proceedings as Ex. PX, PY and PZ.
7. Vide order dated 06.09.2018, the prosecution evidence was closed.
8. Thereafter, separate statements of all the accused persons u/s 313 Cr.P.C. were recorded in which the entire incriminating evidence appearing against the accused persons was put to them, in which the SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 19 of 47 -20- defence of the accused persons was that they had been falsely implicated in the present case in connivance with complainant and other public persons. However, all the accused persons chose not to lead any evidence in their defence.
9. I have heard Sh. Pankaj Bhatia, Ld. Addl. PP for the State and Sh. Gajraj Singh, Ld. Counsel for accused Parvez Alam and Sh. Rishipal Singh, Ld. Counsel for accused persons namely Rajesh Kumar @ Toni, Rajiv Kumar @ Appu and Surender Kumar @ Sonu.
10. It was contended by Ld. counsels that there are material contradictions in the testimonies of PW1 Saroj Kumar Mishra and PW5 Surjan Singh, injured, which are irreconcilable and this makes the case of the prosecution highly doubtful. They also submit that PW1 has admitted in his examination in chief itself that he reached the police station on 22.01.2012 and identified all the accused persons in the police station, which they say is not the proper procedure, as the identity of the accused should have been fixed by carrying out TIP proceedings.
They have further argued that admittedly PW5 Surjan Singh was wearing helmet at the time of the incident and the incident had taken place in the dark at around 9:45 pm, therefore, it was not possible for him to see the faces of the accused persons due to darkness, as it has come that there was no light near the place of the incident. They SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 20 of 47 -21- have further argued that no public witness from the nearby place, where the incident took place have been examined, which could lent support to the prosecution story.
Regarding the recovery part, they have argued that the recovery of bunch of keys, allegedly at the instance of accused Parvez Alam is planted. They further argued that alleged recovery of calculator from the bed room of accused Surender is also planted, as admittedly PW1 in his crossexamination had admitted that he could not produce any bill regarding the purchase of the said calculator, which makes the said recovery doubtful and planted.
They have further argued that recovery of katta, one live cartridge and one empty carrying from the possession of the accused Rajesh @ Toni in FIR No. 31/12, u/S. 186/353/307/34 IPC & 25/27 Arms Act is planted one and recovery of one knife from the possession of accused Rajiv @ Appu in the same FIR is also planted one.
They further submit that accused Rajesh @ Toni and Rajiv @ Appu have been acquitted by this Court vide judgment dated 21.12.2017, regarding which no appeal has been preferred by the State as per their knowledge therefore, since the recovery of katta / knife from the said accused persons is doubtful and the said case has direct nexus with the present case, therefore, as far as the recovery aspect is concerned, the same would have binding effect upon this Court with regard to this issue of recovery. Since the recovery is doubtful qua the said accused persons, the very case of SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 21 of 47 -22- the prosecution as a whole becomes doubtful.
They have further argued that DD No. 31A also supports and favours the case of the accused persons, which says that there were only two persons involved in the incident of robbery, whereas the prosecution has roped in four persons. Therefore, they submit that the prosecution case as a whole is highly doubtful and all the accused persons are liable to be acquitted.
11. On the other hand, Ld. Addl. PP for the State has strongly controverted the above contentions and has argued that prosecution witnesses have categorically deposed about the respective roles played by the accused persons during the commission of offences. Ld. Addl. PP has also argued that both the material witnesses i.e. PW1 and PW5 during their testimonies had identified all the accused persons being the culprits / robbers and the accused persons.
He further submits that all the accused persons had refused to undergo TIP on 21.01.2012, despite warning that such a course may go against them and therefore, identification of all the accused persons barring accused Parvez Alam in the police station on 22.01.2012 was correct procedure adopted as per law, otherwise, there was no course available with the prosecution to establish the identity of the accused persons.
Regarding the judgment rendered in FIR No. 31/12, dated 21.12.2017, he submits that even if the said recoveries are held to be SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 22 of 47 -23- doubtful, even then the prosecution has been able to establish the case of robbery / attempt to murder by use of deadly weapons in view of the testimonies of PW1 and PW5, which as testimonies are cogent and consistent. He further submits that as per the MLC of the injured Surjan Singh, the nature of injuries have been proved by PW3 Dr. S. K. Jain as Ex. PW3/B as dangerous being caused by gun shot injuries, which corroborates the prosecution version.
He further submits that all the accused persons admitted their TIP refusal vide their statements recorded in the court on oath on 08.10.2018 Ex. PX, PY, PZ. Though, it appears that inadvertently in his statement recorded above, the exhibit mark could not be put on his refusal of the TIP proceedings. Therefore, he submits that all the accused persons are liable to be convicted, as per charge(s) framed against them.
12. I have gone through the rival contentions. I have also gone through the written arguments filed by Ld. Counsel Sh. Gajraj Singh on behalf of accused Parvez Alam, wherein he has also relied upon the judgment cited as Mohan Lal Versus The State of Punjab, Criminal Appeal No. 1880 of 2011 and also State of Rajasthan Vs. Netrapal & Ors. 2007 Cri.L.J. 1783.
13. PW5 Surjan Singh, injured has deposed in his testimonial deposition i.e. in his examination in chief recorded on 17.10.2012 as SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 23 of 47 -24- under :
"I am working in Hari Singh Gas Agency at RZ 914, Kirari, Prem Nagar as delivery man and also looking after the godwon. On 17.1.12, I along with cashier Saroj Kumar Mishra were going on my motorcycle bearing no. DL8SAG4532. I was driving and Saroj Kumar Mishra was sitting on pillion seat. At about 9.45 pm when we reached at a distance of about 100 mts. from the gas agency, and on the turn we saw that four persons were standing, drizzling was going on at that time and I was driving the motorcycle slowly. One of the four boy who was standing there had put something on me and I felt that it was chilli powder. One of them had pushed my bike. We fell down, I tried to stand up. One of them had given brick blow on my head. I gain fell down and one of them had fired upon me and bullet hit near my chest. Thereafter, I became unconscious. I regained my consciousness in the Maharaja Agarsen Hospital. I can identify those boys if shown to me. Witness has pointed out towards accused Rajiv that he had put chilli powder in his eyes; witness further pointed out towards accused Rajesh who had pushed his bike and also fired upon him. Witness further pointed out towards accused Surender and told that he had given brick blow on his head. There was fourth accused who is not present in the court today.
At this stage Ld. APP seeks permission to ask leading question as witness has not disclosed the complete facts. Heard. Allowed.
It is correct that I was wearing the helmet at SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 24 of 47 -25- the time of incident. It is also correct that when accused gave brick blow on my head at that time I was wearing the helmet. I can identify the helmet if shown to me.
At this stage MHC(M) produced pieces of helmet of black colour on which Hero Honda is written, in unsealed condition. Same is shown to the witness. The witness identify (sic.) the same as correctly belonging to him which was broken when the accused hit him on his head. The broken pieces are already Ex. P2.
Today I have not brought the motorcycle bearing no. DL8SAG4532 which I had taken on superdari. Witness identified the motorcycle from the photograph markPX and markPX1 on the judicial file."
Later on he was again recalled for further examination in chief after the arrest of accused Parvez Alam on 22.11.2017, wherein he deposed as under :
"I had already deposed in the court on 17.10.2012 and 20.03.2013 and my said statement be read in the evidence in part and parcel of the same against the accused Parvez Alam and in continuation to the said statement I further depose.
During the course of investigation, after the arrest of accused Parvez Alam, I was called at Rohini Jail to participate in the TIP proceedings but I came to know from the IO that accused had refused to participate in TIP proceedings. Thereafter, I came back from the jail.
At this stage, witness pointed towards accused SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 25 of 47 -26- Parvez Alam who is present in the court today and stated that he is one of the associates of accused persons namely Raesh @ Toni, Rajiv @ Pappu and Surender @ Sonu on the day of incident when accused Rajesh @ Toni fired a bullet upon me and robbed the articles from Saroj Kumar Mishra who was pillion rider and I was driving the bike. After receiving the bullet injury on my left side chest, I fell unconscious."
14. PW5 in his crossexamination has stated that the accused did not try to snatch anything from him. He further stated that there was visor on his helmet and he had visor up, as it was drizzling. He admitted that it is correct that on 17.01.2012, at about 9:45 pm, it was raining, but no fog. He further deposed that it was dark, but there was street light. He further deposed that he was driving slowly since road was muddy. He further deposed that his speed was 1015 kmph. He further deposed that he was not called to police station after arrest of accused persons, he had identified the accused persons in the police station.
He further deposed that the police recorded whatever he told them. It was also read over to him. He further deposed that after the incident, he had seen the accused in Court. He further deposed that he cannot tell exact distance between accused and themselves, he did not try to accelerate after seeing the accused persons. He further deposed that there was no street light at that time, it was dark, one of the accused put chilly powder in his eyes, after that he could not see SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 26 of 47 -27- there was anything, three was visor on his helmet, but it was open due to rain.
15. PW1 who was riding on the pillion of the motorcycle driven by PW5 Surjan Singh on the date of the incident has corroborated the version of PW5 with regard to the time, place, the manner of the robbery, the putting of chilly powder into the eyes of PW5 and hitting of the brick on the head of Surjan Singh and firing with the katta / pistol towards Surjan Singh, as a result of which he sustained gun shot injury and fell down bleeding and use of the knife by one of the robber and that they were carrying at the time of the incident one office bag, containing three registers, one calculator make Citizen, one spectacle, keys of godown and cash of Rs. 1,700 - 1,800/.
He also identified the accused persons in his examinationinchief with their respective roles in the incident of robbery and that the accused Rajesh @ Toni had fired upon PW5. He also identified the calculator, which he had also identified in the TIP proceedings before the Ld. MM.
Thereafter, in his examination in chief carried out qua the accused Parvez Alam dated 22.09.2017, he identified the said accused as a person, who used knife at the time of robbery and also identified the bunch of keys belonging to the company, which he also identified in the TIP proceedings before the Ld. MM.
SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 27 of 47 -28-
16. During crossexamination, he has deposed that in his chief examination, he had wrongly pointed out towards accused Rajesh as Rajiv. He further deposed that there is electric pole near the mor near the place of incident. He further deposed that he made call to the employer and manager instead of police. He further deposed that call was made by Ranbir Singh or Joginder Singh. He further deposed that the light was coming from the pole near the mor (turn), which is point X in Ex PW1/A. He denied the suggestion that there was no pole there.
He further deposed that 45 persons came out of factory in his presence, but police did not interrogate those persons. He further deposed that he visited the PS on 22.01.2012 once and thereafter again date, he does not remember. He further deposed that first time, one accused, second time two accused persons were shown. He further deposed that neither he nor his employer claimed three registers. He further deposed calculator belongs to them, but no bill was produced.
He further deposed that on the date of incident, there was fog, but no rain. He further deposed that police did not make labourors or employees of factory as witness, his employer did not got release the keys on superdari.
17. Taking the testimonies of PW1 and PW5 collectively, PW1 in his crossexamination has stated that there is a electric pole near the place of the incident and the light was coming from the pole near the SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 28 of 47 -29- turn, which was at point X in site plan Ex. PW1/A and he denied that there was no pole. PW5 with regard to the identity part in his cross examination stated that though he was wearing helmet at the time of the incident, but his visor was up as it was drizzling. Though, it was dark, but there was street light and he was driving slowly, since the road was muddy and his speed was 1015 kmph.
With regard to the identity of the accused persons, from the testimonies of PW1 and PW5, it has been established that both of them had the occasions to see the faces of the robbers, as PW5 was driving the motorcycle very slowly since it was raining and the road was muddy and there was sufficient light / illumination near the place of the incident, as street light was there and the accused persons had confronted them from very close distance. Further, none of the accused persons were in muffled faces at the time of incident, which also gave full opportunity to PW1 and PW5 to observe their facial features, height, girth, clothes, colour, weight etc. Therefore, they had the occasion to see the faces of the accused persons from close quarters.
18. Regarding the fact that PW1 identified the three accused persons except Parvez Alam in the police station on 22.01.2012. it has been proved that the above three accused persons refused their TIP vide Ex. PX to PZ on 21.01.2012 and the fourth accused Parvez Alam refused his TIP on 20.04.2013. Therefore, there was nothing wrong SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 29 of 47 -30- in getting the identity of the accused persons, other than Parvez Alam fixed in the police station, as the endavour of the investigating officer was to rule out any observational error in the identification of above accused persons immediately after the incident, which took place on 20.01.2012 and since the above accused persons had refused to undergo TIP on 21.01.2012, therefore, the observational power of PW1 was tested at the earliest opportunity on 22.01.2012 to rule out any observational errors, which may have taken place due to time lapse, as at that time, the identities of the accused persons barring Parvez Alam must have been fresh in his memory, therefore, the IO had adopted the right course in getting the above accused persons identified in the PS, on 22.01.2012 after they had refused their TIP on 21.01.2012.
19. Regarding the fact that PW5 had seen all the accused persons in the court and not in the police station or anywhere else before that. In the present case, PW5 had received fire arm injuries, due to which he was hospitalized and suffered dangerous injuries and the identity of the accused persons had already been established through PW1 on 22.01.2012 and the accused Parvez Alam had also refused to undergo TIP on 20.04.2013.
Therefore, there was no alternative or way to identify the accused persons in the court only, which he did during his testimony in the court, as he had no other opportunity to see the accused persons, SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 30 of 47 -31- since by the time, he would have got well, the accused persons would have gone to judicial remand, after they had refused TIP, therefore, the only opportunity to identify was the identification in the court.
20. From the testimonies of PW1 and PW5, the prosecution has been able to establish that there was sufficient illumination at the spot at the time of the incident, as well as time and opportunity to see the faces of the robbers, as also the specific roles of all the robbers in executing the robbery and causing gun shot injuries to PW5.
21. As discussed above, the testimonies of PW1 and PW5 duly corroborate the version of the prosecution and both of them converge with each other with regard to the time, place, manner of the incident as also the identity of the accused persons and their specific roles in the incident in question. Further the very purpose of corroboration in any trial is to rule out any error which may have crept into the testimony of a sole witness on account of observational sensitivity, objectivity, veracity etc., as if two persons who have viewed the same incident from almost similar position are deposing about the same act in a same way then errors, if any in the testimony of a single witness are ruled out by the corroboration of another witness, due to the principle of confirmation of facts.
SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 31 of 47 -32-
22. Regarding the medical evidence, PW3 Dr. S. K. Jain has deposed as under :
"Patient Surjan Singh was examined by me in Maharaja Agarsen Hospital on 18.1.2012. He has visited to Maharaja Agarsen Hospital for further treatment from SGM Hospital. He was diagnosed with bullet injury left side chest. He was discharged from the hospital on 22.1.2012. The discharge summary is prepared by the Resident Dr. Sanjeev. I can identify his signature and handwriting as he has worked under me. The discharge summary is Ex. PW3/A which bears the signature of Dr. Sanjeev at point A. I also gave opinion on the MLC of the patient prepared at SGM Hospital encircled X. Same is Ex. PW3/B bearing my signature at point A."
23. The said MLC was in fact prepared at SGM Hospital on 17.01.2012 by PW4 Dr. Binay Kumar, as the injured was first of all taken to SGM Hospital on 17.01.2012 at 10:30 pm by SI Ranbir Singh, with alleged history of fire arm injury, where on local examination following injuries were found :
"1. Fresh lacerated punctured wound of 1.25 cm x 1.25 cm with inverted margin over left para sternal region at the level of nipple (no burning and blackening around the wound)
2. Fresh lacerated punctured wound of 1 cm x 1 cm with everted margin over left lateral side of chest at the level of nipple.
SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 32 of 47 -33-
3. Fresh lacerated wound of 3 cm x 0.5 cm x 0.5 cm over right eyebrow."
PW4 prepared the MLC Ex. PW4/A and referred the patient to SR Surgery for further management. Thereafter, he was taken to Maharaja Agarsen Hospital for further treatment, where he was examined and operated by Dr. S. K. Jain, PW3, whose deposition has been recorded above, who has opined the nature of injures as dangerous.
As per the discharge summary proved by PW3, the patient was admitted into the said hospital on 18.01.2012 with the history of gun shot injury at 9:30 pm with the loss of consciousness and after investigations, following procedure was done on him :
"Left exploratory thoracotomy, repair of lung injury, and repair of myocardium & pericardium under general anesthesia on 18.01.2012."
24. Regarding the receipt of the secret information on 20.01.2012 at about 9:30 am, which was recorded vide DD No. 28B and thereafter, a raiding party was organized consisting of HC Jagdish, HC Narender, HC Yashpal, Ct. Karambir, Ct, Naagraj and Ct. Parveen, where after, the accused Rajiv @ Appu and accused Rajesh @ Toni were arrested by the above police party, who had allegedly fired upon them, regarding which separate FIR No. 31/12 was registered. With regard to this aspect, prosecution in the present case has SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 33 of 47 -34- examined PW7 HC Yashpal, PW8 HC Narender, PW9 HC Jagdish and PW18 head of the raiding party SI Dhirender Singh.
25. PW7 HC Yashpal, was present throughout the arrest of accused Rajesh @ Toni and Rajeev @ Appu at the time of receipt of secret information, the alleged firing upon the police party by those accused persons, the alleged recovery of one country made pistol, one empty shell as well as a knife from the possession of accused Rajesh @ Toni and from the possession of accused Rajeev @ Appu from his search a bag containing country made pistol, one knife and one live cartridge were seized which were converted into pulandas and thereafter PW18 SI Dhirender prepared the rukka and further investigations were handed over to SI Sandeep Kumar of FIR No. 31/12 u/S. 186/353/307/34 IPC and Section 25 Arms Act and they also disclosed the involvement of other coaccused persons namely Surender @ Sonu and Parvez Alam.
The said witness has also deposed that thereafter on the same day, SI Sandeep handed over the custody of the above accused persons to SI Badami Lal, IO of the case.
26. SI Badami Lal had deposed that after the information was passed to him regarding the arrest of accused Rajesh @ Toni and Rajeev @ Appu in FIR No. 31/12, he collected the relevant documents from the SI Sandeep, who has been examined as PW20.
SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 34 of 47 -35- He interrogated the said accused persons in the present case and arrested them and also recored their disclosure statements Ex. PW7/M and Ex. PW7/N and thereafter at the instance of these two accused persons, they managed to apprehend accused Surender @ Sonu, who was also arrested and his disclosure statement Ex. PW7/O was also recorded and said accused Surender @ Sonu lead the police party to his House no. 5/17, Friend Colony, near G Block, Sulatan puri and he picked up one calculator from the bed of his room, which was seized and on 26.03.2012, he got conducted the TIP of the calculator, which PW1 correctly identified in those TIP proceedings and the said proceedings have been exhibited in the testimony of PW1 as Ex. PW1/C.
27. Regarding the accused Parvez Alam, the prosecution has examined PW21 Devender, who in his testimonial deposition in the court has deposed in his examination in chief as under :
"On 14.04.2013, I was posted at PS Sultan Puri as a Head Constable. On that day, I alongwith Ct. Karan Singh was present at Inder Enclavle, Nidhari Village in search of proclaimed offender. There one secret informer met me and informed that one person namely Parvez Alam, who was declared proclaimed offender in case FIR No. 27/12 of PS Sultan Puri was present at Shani Bazar, if raided, he can be apprehended.
SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 35 of 47 -36- On receiving this information, we reached Shani Bazar and on the pointing out of informer, one person was apprehended, who disclosed his name as Parvez Alam (accused) present in the court today (correctly identified by the witness). He was arrested vide arrest memo Ex. PW21/A which bears my signatures at point A and thereafter I prepared the kalandra u/s 41.1(c) Cr.P.C. which is Ex. PW21/B which also bears my signatures at point A. Thereafter, information was given at PS and the accused was produced in the concerned court in Rohini Court Complex, there IO, SI Dayanand appeared and I handed over the photocopies of kalandra to IO."
28. The prosecution has also examined PW22 Ct. Karan Singh, who was present with ASI Davinder at the time of arrest of accused Parvez Alam, who has also deposed that after his arrest, the accused was produced before the Rohini Court, where SI Daya Nand appeared to whom the copies of kalandara and accused were handed over and after taking permission from the court, the accused was apprehended in this case. His disclosure statement sas recorded Ex. PW22/B and thereafter he lead to his house and got recovered bunch of keys, which were seized vide seizure memo Ex. PW22/C. SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 36 of 47 -37- Regarding the TIP proceedings of the said keys, the prosecution has examined Sh. Vipin Kharab, the then Ld. MM, who had conducted the TIP proceedings of the said keys qua PW1 which are Ex. PW1/D and certificate regarding the correctness of the same has been proved as Ex. PW21/A.
29. Regarding the contention of the Ld. Counsel for the accused Rajesh @ Toni and Rajeev @ Appu that the said accused persons were acquitted by this very court in FIR No. 31/12, PS Sultan Puri vide judgment dated 21.12.2017, which is fact in issue in this trial with regard to the arrest of those accused persons in the present FIR and the alleged recovery of pistols and knifes and therefore the same would be binding upon this court in view of the provisions of Evidence Act.
30. The said assertion appears to be correct, as the relevant para(s) of the said judgment rendered in FIR No. 31/12, PS Sultan Puri, dated 21.12.2017 in which the accused persons were arrested and recoveries were made are reproduced as under :
"18. In the present case, no scientific evidence, whatsoever has been collected by the prosecution in the shape of finger prints from any of the weapons allegedly recovered from possession of the accused persons nor any gun shot residue test was conducted on the hands of the accused Rajesh @ Toni, who had allegedly SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 37 of 47 -38- fired on SI Dhirendra which could have clearly corroborated the prosecution story nor the empty lead cartridge was seized, which could have also proved that same had been discharged from the katta / pistol which was recovered from possession of the accused Rajesh @ Toni. In the present case, the incident is of the year 2012. At that time, mobile phones were freely available and were possessed by all common people including the police officials. In the present case, the best way for the prosecution to prove the location of crime was to prove the CDRs of all the members of the police party at the relevant time to show their location at the place of the incident which could have clearly proved their presence at the spot and would have duly corroborated the prosecution story regarding the time, place and manner of incident. As already discussed, no scientific investigations whatsoever has been carried out by the IO for the reasons best known to him despite the availability of the scientific evidence in the shape of gun shot residue test, finger prints and evidence that the fired lead was discharged from the weapon, which was found in the possession of accused Rajesh @ Toni.
Xxxxx xxxxxxxx
20. From the analysis of the above evidence, it appears that both the prosecution as well as defence are not putting forth the true genesis of the incident before the Court. The probative force of the prosecution evidence as a whole is of uncertain kind and similarly the defence version is also having very weak force not worthy of credence. The truth lies somewhere in between.
SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 38 of 47 -39- To convict any of the accused persons in any criminal trial, the probative force of the prosecution evidence as a whole must be almost touching the point of certainty. The accused persons cannot be convicted in a case, where the evidence lead by the prosecution is of uncertain / iffy nature."
31. The said finding by this Court is relevant being fact in issue in this trial u/S. 43 of the Indian Evidence Act, which is reproduced as under :
"43. Judgments, etc., other than those mentioned in sections 40 to 42, when relevant. Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of this Act."
It is not disputed that the said judgment with regard to FIR No. 31/12, PS Sultan Puri, u/S. 186/307/353/34 IPC and Section 25/27 Arms Act rendered vide judgment dated 21.12.2017 has not been challenged before any Superior Court as per the knowledge of this Court or the defence. The same has become final, as the same has not been challenged before any superior forum, as the prosecution has failed to bring on record any fact to the contrary.
SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 39 of 47 -40- Therefore, the said judgment with regard to the arrest and recoveries effected from the accused Rajesh @ Toni as well as accused Rajeev @ Appu, is admissible u/S. 43 of Indian Evidence Act being fact in issue in this trial, therefore, same would render their arrest and recoveries effected from them doubtful as held in the said case.
32. However, with regard to the recoveries of calculator and bunch of keys pursuant to the disclosure statement(s) of accused Surender @ Sonu and Parvez Alam which have also been duly identified in the TIP proceedings before the Ld. MM would stand as the said judgment has no applicability with regard to the fate of the above accused persons, who were not party in the FIR No. 31/12 nor the said judgment was passed in their favour. Therefore, the said recoveries can be taken as corroborative piece of evidence qua the accused Surender @ Sonu and Parvez Alam.
33. Regarding the plea of the Ld. Defence Counsels that PW1 has admitted that he could not produce any bill with regard to the calculator and his employer also did not get the keys released on superdari, which shows that the same were planted upon the above accused persons, as if the said articles had in fact belonged to the complainant party, then they would have got the said articles returned to them on superdari.
SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 40 of 47 -41- The said contention is without any substance as the said calculator was duly identified in the TIP proceedings held before the MM as well as the bunch of keys, as PW1 would have been using the said calculator day in and day out, as also the said keys for opening and closing the godown. Therefore, due to long association with those articles and the fact that those articles must have some peculiarities, which could only be noticed by PW1, he was able to identify those articles by long association. There is nothing unnatural about the same. In any case, the calculator is very low cost item and the keys by the time accused Parvez Alam was arrested in the year 2013 would have been changed by the complainant party as they would have lost the hope that the said keys would ever be recovered. In any case, if they would have harboured any such hope that the keys would be recovered, still even then in any case they would have changed the lock of the godown, so that it may not be used by any unscrupulous person.
34. Therefore, the present case can be bifurcated into two parts i.e. one pertaining to incident of robbery by using deadly weapons/ attempt to cause death of PW5 and the second part that of arrest and recoveries. The recoveries qua the accused Rajesh @ Toni and Rajeev @ Appu cannot be considered in view of Section 43 of the Evidence Act, as discussed above, whereas the recoveries qua the accused Surender @ Sonu and Parvez Alam of calculator and keys SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 41 of 47 -42- are admissible in evidence, as there is no bar to the same in view of their disclosure statements and recoveries pursuant thereto, as the same are admissible u/S. 27 of the Evidence Act, by confirmation of facts.
35. With regard to the fact that no independent witness was joined in the recovery proceedings of the nearby factory or any other passerby, it is settled law as has been held in Sanjay alias Kaka Vs. State of NCT of Delhi AIR 2001 SC 979 as under :
"That no independent witnesses were associated with recovery (discovery) under S. 27 Evidence Act is not sufficient to create doubt regarding truth of prosecution version."
In view of the said judgment the non joining of the public witnesses is not fatal to the prosecution case.
36. Regarding the contention of the Defence Counsel that the DD No. 31A Ex. PW13/P reveals that initial call was made by the informer that two persons who are on the bike had snatched the bag after firing, whereas in the present case the investigating officer has roped in four accused persons, which shows the falsity of the prosecution case. The said DD entry does not favour the accused persons or the defence, as it is just a call made by the informant to the police about SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 42 of 47 -43- an incident of robberycumattempt to murder and the same is not bound to contain the entire details of the incident. If that was so, then where was the need of lodging the FIR and carrying out the detailed investigations.
37. Further the prosecution case is corroborated by the photographs Ex. PW17/B (colly.) which depicts motorcycle as well as broken helmet as well as pouch of chilly powders (Cow Brand) as well as red chilly lying on the road at the spot, which also corroborates the version of PW1 and PW5 and the prosecution version making it more potent. In fact in one of the photographs half portion of the electric pole near the motorcycle bearing no. DL8SAG4532 is visible. Therefore, this also corroborates the version of PW1 and PW5 that there was light and illumination near the place of incident.
38. Now, what is net probative force of the prosecution case as a whole after this wholesome discussion. That is to say it is time to weight or analyze the probative force of entire mass of prosecution or defence evidence, which has been let in. Since the Evidence Act only speaks mainly about the rules of admissibility of evidence i.e what kind of evidence is safe, due to prudence and experience, therefore should be let in, or which is not, due to long drawn experience like hearsay which should be discarded. Therefore, Evidence Act mainly speaks about the admissibility or non SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 43 of 47 -44- admissibility of evidence. Now, once the entire evidence is let in, what is force or weight which has to be given to a particular piece or item of evidence. Then, to the entire cumulative force of evidence taken as a whole.
After considering the counter pulls or countervailing evidence which pulls down the weight of prosecution evidence or supports the defence evidence. The answer to the same can only be found in the principles of mathematical probability which are used to analyze the happening or non happening of any event on such probability scale.
39. From the analysis of the above evidence, it appears that since all the accused persons were armed to the teeth as one of them was carrying katta @ pistol, one of them was carrying knife, one was carrying chilly powder and one used the brick in the incident of robbery. They had the full knowledge as well as intention that in case anyone would resist them in carrying out the robbery in question, they would use the said deadly weapons and would not hesitate to cause the death of any person so resisting and one of them in furtherance of their common intention i.e. accused Rajesh @ Toni in fact fired upon PW5 Surjan Singh with such intention and knowledge and the said bullet so fired by him in fact struck against the chest of PW5 Surjan Singh thereby causing grievous gun shot injury upon his person.
Therefore, he and his coaccused persons were sharing common SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 44 of 47 -45- intention as well as knowledge that by doing so, they would cause the death of PW5 and their intention and knowledge can be said to be of the degree or scale as mentioned u/S. 300 IPC and it is only because of skillful medical aid and elaborative surgery that the life of PW5 could be saved.
The other accused persons also shared the common intention as well as meeting of mind in carrying out the said venture as all of them had carried out different acts and series of acts in furtherance of their common intention i.e. carrying out robbery by using deadly weapons, as also attempt to cause the death of PW5 Surjan Singh.
40. Therefore, all the accused persons are liable to be convicted u/S. 394 read with Section 392/34 & 307/34 IPC, whereas the accused Rajesh @ Toni, who had used the country made pistol in carrying out the said robbery and had actually caused fire arm injuries upon the body of PW5, which injury was opined to be grievous would also be individually liable to be convicted u/S. 397 IPC. Similarly, the accused Parvez Alam, who had used knife which is also a deadly weapon in the commission of the said robbery would also be individually liable to be convicted u/S. 397 IPC as well.
41. On the scale of 1 to 10, where happening of any event is measured the probative force of the entire mass of the prosecution evidence lead on record taken as a whole is touching the point of SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 45 of 47 -46- certainty. It can be given 8 or 9 points on such scale of '10' i.e 80% or 90% probability '1' being the certainty or 100% (which though can never be achieved in reality). On such kind of evidence, it can be safely concluded that it is the accused persons, who in furtherance of their common intention committed robbery upon PW1 and PW5 while armed with deadly weapons, as also attempted to cause death of PW5 Surjan singh by causing gun shot injuries upon his person, which injuries were opined to be dangerous. Therefore, they all are guilty of the offence(s) for which they have been charged. The prosecution had to prove its case beyond reasonable doubt and on said scales, therefore, it should be touching the point of certainty if not one, it should have been somewhere around 8 or 9 that is to say 80% and 90% which is the case in hand, as elaboratively discussed above.
To sum up :
42. From the aforesaid analysis of evidence, the probative force of the prosecution evidence as a whole is touching the point of certainty on the scales, where probability of happening of any event is assessed or measured, whereas the defence version is having very low probative force, which is almost touching the point of disbelief. As a consequence, all the accused persons namely Rajesh @ Toni, Rajiv @ Appu, Surender @ Sonu and Parvez Alam stand convicted u/S. 394 read with Section 392/34 & 307/34 IPC. In SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 46 of 47 -47- addition to that, accused Rajesh @ Toni, who had used the country made pistol in carrying out the said robbery and had caused fire arm injuries upon the body of PW5, which injury was opined to be dangerous would also be individually liable to be convicted u/S. 397 IPC. Similarly, the accused Parvez Alam, who had used knife which is also a deadly weapon in the commission of the said robbery would also be individually liable to be convicted u/S. 397 IPC as well.
Announced in the open Court (Sanjeev Aggarwal) th on this 29 day of January, 2019 Addl. Sessions Judge02,North Rohini Courts, Delhi 29.01.2019 SC No. 57828/16; FIR No.27/12; PS. Sultan Puri State Vs. Rajesh Kumar @ Toni & Ors. Page No. 47 of 47