Delhi District Court
State vs Rahul on 13 April, 2017
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
Sessions Case No. 53637/16
CNR No:-DLNW01-009177-2016
FIR No. 425/16
PS Begum Pur
U/s 392/397/34 IPC & u/s 25/27Arms Act
State Versus Rahul
Son of Sh. Anil Kumar
Resident of Village-Bhadani,
Jhajjar, Haryana.
Date of institution in Sessions Court: 16/11/2016
Date of conclusion of arguments : 13/04/2017
Date of pronouncement of judgment: 13/04/2017
Memo of Appearance:
Sh. A.B. Asthana, learned Addl. P.P. for State
Sh. Ashok Chikara, learned defence counsel for accused
JUDGMENT
1 Accused Rahul has been sent-up to face trial for commission of offences u/s 392/397/34 IPC and u/s 25/27 Arms Act.
2 Case of the prosecution, briefly stated, is to the effect that on 18/06/2016, Ajay Dabas (PW1) and his elder brother Sachin Dabas (PW2) were going towards their village in white coloured Swift car bearing registration no. DL- 6CN-4922. At about 2.30 a.m., when they reached near Rama Vihar Road and little ahead of Cygnus hospital, one Kwid car overtook them and blocked their Swift car. Two persons alighted down from that Kwid car. They both were armed with pistols and one such person came towards the side of Ajay Dabas and the other towards the side of Sachin. Both such robbers asked Dabas brothers to hand over their mobile phones and wallets, which they did. It will be worthwhile to mention that the person, who was standing near the side of Sachin Dabas, had even fired two shots FIR No. 425/16 PS Begum Pur (State Vs. Rahul) Page 1 of 7 towards the leg space area where Sachin was seated. Fortunately, such bullets did not hit Sachin. Both the aforesaid robbers were accompanied by one more person who remained seated in Kwid car and did not alight down. Ajay Dabas and his brother were made to alight down from the Swift car and thereafter both the aforesaid accused fled away while driving the same. Their third accomplice also left the spot while driving away Kwid car.
3 Police was informed and this is how, FIR came to be registered. Both Ajay and Sachin claimed that they could identify those two robbers who had alighted down from Kwid and had shown them pistols.
4 Police later on learnt that accused Rahul had been arrested in case FIR No. 83/16 registered u/s 25 Arms Act by PS Line Par, Bahadurgarh. Besides one firearm and one live cartridge, accused Rahul was found in possession of said robbed swift car which was, at that time, bearing a fake number plate. Police officials of PS Begum Pur contacted the officials of PS Line Par, Bahadurgarh and collected relevant documents and got the vehicle transferred to PS Begum Pur.
5 Accused Rahul was interrogated and arrested with the permission of the Court. Other robbed articles could not be recovered during the investigation. Accused Rahul refused to participate in TIP though later when Ajay had come to PS in order to ascertain the progress of his matter, he happened to see accused Rahul and identified him as the one who had committed robbery and had shot twice with pistol.
6 Police could not get any clue about the other two accomplices and it is in these circumstances that accused Rahul has been charge-sheeted.
7 Charge-sheet was submitted before the concerned Magisterial Court on 05/10/2016 and since offence u/s 397 IPC was triable exclusively by the Court of Sessions, the case was committed.
FIR No. 425/16 PS Begum Pur (State Vs. Rahul) Page 2 of 78 Case was received on allocation by this Court on 16/11/2016.
9 Accused was charged u/s 392/34 IPC and u/s 397 IPC and sec 27 Arms Act. He pleaded not guilty and claimed trial.
10 Prosecution was directed to adduce evidence and has examined eight witnesses viz PW1 Ajay Dabas (complainant/eye-witness), PW2 Sachin Kumar (eye-witness), PW3 Sh. Prakash Chandra (FSL-photographer), PW4 ASI Jaibir Singh (MHC(M)), PW5 Sh. R. Eniyavan (FSL expert who had examined the holes in Swift car caused on account of gunshot), PW6 HC Lokesh (official of CIA staff Bahadurgarh who apprehended the accused while he was driving Swift car), PW7 Ct Satender (official of CIA staff Bahadurgarh who apprehended the accused while he was driving Swift car) and PW8 SI Rajesh Kumar (Part IO).
11 Accused, in his statement u/s 313 Cr.P.C., pleaded innocence. According to him, he was consuming alcohol with his friends in Bahadurgarh when police picked him and falsely implicated him in the present case. He did not lead any evidence in his defence.
12 Learned Addl. PP has contended that though both the spot witnesses have not been able to identify accused Rahul during trial, yet in view of the fact that he was found driving same Swift car, he should, necessarily, be presumed to be robber or at least receiver of stolen property.
13 Sh. Ashok Chikara has, on the other hand, contended that accused has been falsely implicated in the present matter. He has argued that the testimony of both the spot witnesses deflates the case of prosecution and even the recovery of Swift car from accused is highly skeptical and suspicious.
14 I have given my thoughtful consideration to the rival contentions and carefully gone through the material available on record.
FIR No. 425/16 PS Begum Pur (State Vs. Rahul) Page 3 of 715 Undoubtedly, PW1 Ajay Dabas and his brother PW2 Sachin Kumar are the most material prosecution witnesses. Of course, they have stuck to the prosecution version and have deposed about the incident of robbery. They both have claimed that one Renault Kwid vehicle overtook them when they had reached near Rama Vihar Road. They both have also claimed that two persons alighted down from said Kwid car and both such persons were carrying pistols. It has also been claimed by them that those robbers asked them to hand over their mobile phones as well as wallets and then sped away in their Swift car and third accomplice who remained seated in Kwid car also left the spot while driving that Kwid. They also corroborated about the fire made by one such robber.
16 PW1 Ajay Dabas deposed that after the incident, he signaled one vehicle to stop and with the help of the mobile given by the driver of that vehicle, he informed the police about the incident. Police came at the spot and recorded his statement. He proved his such statement as Ex. PW1/A. 17 In such statement Ex. PW1/A, Ajay Dabas emphatically claimed that he could identify both the said robbers, if shown to him. However, on this crucial aspect of identification, both the aforesaid material public witnesses have faltered.
18 According to PW1 Ajay Dabas, the first robber who had alighted down from Kwid car and had come towards his driver side window was not having his face covered but simultaneously also claimed that the accused present in the Court was not that person. I would hasten to add right here that even as per the case of prosecution, accused Rahul was the other robber who had alighted down and reached towards the side where PW2 Sachin was sitting and he was the one who had fired towards the legs of Sachin. However, according to Ajay Dabas, such other robber was having his face covered and, therefore, he was in no position to identify him. He out rightly denied that he ever gone to PS Begum Pur on 21/07/2016 and had identified accused Rahul as that other robber. He was duly confronted with his previous statement and despite cross-examination by prosecution, he did not say anything against accused Rahul.
FIR No. 425/16 PS Begum Pur (State Vs. Rahul) Page 4 of 719 Similarly, PW2 Sachin Kumar has claimed that the person who had come towards his side was having his face covered and, therefore, he was in no position to identify that robber. As regards accused Rahul, he claimed that he could not say whether he was one of those robbers. His cross-examination conducted by prosecution also did not yield any result.
20 Thus, in light of the hostile and un-supportive testimony of PW1 Ajay Dabas and PW2 Sachin Kumar, there is hardly any material to hold accused Rahul as one of those robbers.
21 Fortunately, for the prosecution, there is one more crucial circumstance. As per prosecution case, on 23/06/2016, on the basis of secret information, a nakabandi was laid in Bahadurgarh and accused was found driving same Swift car and he could not explain about his such possession. In this regard, reference be made to the testimony of PW6 HC Lokesh and PW7 Ct Satender.
22 PW6 HC Lokesh has deposed that on 23/06/2016, he along with Ct Satender, HC Pradeep and other staff were on patrolling duty near Chor Pyau, Bamdoli, Bahadurgarh, Haryana. A secret informer met HC Pradeep and told them that a person would come from the side of Bamdoli in a Swift car bearing No. DL- 12CG-0194 and that car might be a stolen one. They accordingly laid nakabandi on the main road and started checking the vehicles passing through that area. After sometime, while colour Maruti Swift car bearing same number was seen coming from the side of Bamdoli. They gave signal to stop the car and asked the driver to alight down but driver of such car i.e. accused Rahul tried to run away. He was overpowered and on search, one katta .32 bore was recovered which was further found containing one round. Necessary documentation, in respect to such firearm and cartridge, was done and those were taken into possession. Testimony of PW7 Ct Satender is also virtually at par.
23 I have seen their cross-examination very carefully. Though according to defence, accused Rahul was picked-up from somewhere else in Bahadurgarh and FIR No. 425/16 PS Begum Pur (State Vs. Rahul) Page 5 of 7 had been falsely implicated, yet I have no cogent reason to discard and disbelieve the testimony of PW6 HC Lokesh and PW7 Ct Satender. Minor contradictions can always appear in any case as no criminal case would ever be fool-proof. Court is not required to give undue weightage to minor contradictions and insignificant omissions. Undoubtedly, no independent witness was joined despite the fact that police was acting on a tip-off but such fact, by itself, would not mean that the testimony of said two police officials is false particularly when no animosity has been suggested to them. Defence has not elucidated as to why both these police officials would unnecessarily drag accused Rahul in the present case with whom they had no enmity.
24 The vehicle was later on got transferred and was released on superdari to Ajay. Reference in this regard be made to the testimony of PW8 SI Rajesh Kumar. He has deposed that when he contacted the complainant on 30/06/2016, he learnt that his robbed car had already been recovered by the police staff of PS Line Par, Bahadurgarh. He then collected relevant documents and got the vehicle transferred. He made request for issuance of production warrants and after seeking permission of the Court, accused was interrogated and formally arrested. He also deposed that Swift car was brought to FSL for forensic examination.
25 Such forensic report has also been duly proved by PW5 R. Eniyavan. He has deposed that on 08/07/2016, Maruti Swift car of white colour bearing registration no. DL-6CN-4922 was brought to FSL Rohini, Delhi, for inspection as there was suspicion of firing in the vehicle. He deposed that joint team comprising of ballistic expert and photography staff had carried out the inspection and he directed Assistant Chemical Examiner (Photography) to take photographs who took 20 photographs. Such photographs have been proved as Ex. PW3/A to A20. He further deposed that on through examination, he found three holes in linear pattern and the trajectory showed these to be the path of one single bullet and such bullet first pierced front seat (adjacent to the driver seat) and then hit gear console and then foot mat. Such holes were marked as H3, H1 and H2 respectively. He further deposed that one slightly deformed bullet of 7.65 mm was lying beneath the said FIR No. 425/16 PS Begum Pur (State Vs. Rahul) Page 6 of 7 foot mat. Swab samples were also lifted from all the three holes for the purpose of enabling the concerned expert to go for GSR test. Control samples were also lifted and IO had taken control of all said articles including the bullet. He proved his report as Ex. PW5/A. 26 Such forensic report is also found to be in synchronization with the ocular version. Though forensic reports regarding GSR and bullet have not been placed on record, fact remains that these, if placed, would have paled into insignificance as complainant and his brother have failed to identify Rahul. Police officials of PS Line Park, Bahadurgarh, should have noted down the engine number and chassis number of Swift car but nonetheless, there is no doubt about the fact that the car recovered from the possession of accused Rahul is the same which had been robbed on 18/06/2016.
27 Section-114 of Indian Evidence Act comes into play. As per Section 114(a) of Indian Evidence Act, the Court may presume that a person who is in possession of stolen goods soon after the theft is either the thief or has received goods knowing the same to be stolen unless he accounts for its possession. Thus, as per said Section, the accused can either be presumed to be the robber or receiver of stolen property. I am conscious of the fact that accused has not been identified by the eye-witnesses during trial. Keeping in mind the hiatus between the date of incident and the date of recovery, I hereby presume accused Rahul to be mere receiver of stolen property.
28 As regards possession of firearm, I would refrain myself from commenting any thing as such matter is within domain of other Court.
29 Accordingly, while I acquit accused Rahul of offences u/s 392/34 IPC, sec 397 IPC and sec 27 of Arms Act, he is hereby held guilty for offence u/s 411 IPC and convicted thereunder.
Announced in the open Court (MANOJ JAIN)
On this 13th day of April 2017 Addl. Sessions Judge (FTC)
North-West District, Rohini: Delhi
Digitally signed
FIR No. 425/16 PS Begum Pur (State Vs. Rahul) MANOJ by7MANOJ
Page of 7 JAIN
JAIN Date: 2017.04.13
15:49:31 +0530