Delhi District Court
State vs . 1. Ajay Kashyap on 28 September, 2013
SC No. 97/08
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS: NEW DELHI
SC No. 97/08
ID No. 02403R0170142008
FIR No. 1186/07
PS Malviya Nagar
u/s 395/412 IPC
State Vs. 1. Ajay Kashyap
S/o Sh. Prem Shankar
R/o H.No. 2, Baba Lucky Nath ki
Kutiya, Ward No.3, Mehrauli,
New Delhi.
2. Sri Krishan
S/o Sh. Brij Mohan
R/o D75, J.J. Colony,
Khan Pur, New Delhi.
3. Bhupinder Kumar
S/o Sh. Jaswant Singh
R/o 551/5, Mehrauli,
New Delhi.
4. Jaipal
S/o Sh. Babu Lal
R/o Rajinder ka Makan,
Near Church Bandh Road,
Aya Nagar, New Delhi.
FIR No.1186/07 PS Malviya Nagar Page 1 of 37
SC No. 97/08
5. Bikram @ FM
S/o Sh. Karodi Singh
Vagabond, Patri Mehrauli,
New Delhi.
6. Salimuddin @ Netaji
S/o Sh. Babu
R/o H.No. 43, Husainabad
Perova Firoza Ali, PS Delhi Gate
Meerut, UP.
Date of Institution : 03.03.2008
Judgment reserved on : 19.09.2013
Date of pronouncement : 28.09.2013
JUDGMENT
1. The present chargesheet has been filed against the aforementioned accused persons u/s 395/412 of the Indian Penal Code (hereinafter referred to as 'IPC').
2. Briefly stated, the case of the prosecution that can be culled out from the allegations in the chargesheet and the documents filed therewith is as follows:
(a) At about 0420 hours on 02.12.2007, one person namely Sunil Kumar came to PS Malviya Nagar and gave a complaint that he has been robbed by 34 boys. As per the complaint given by the said Sunil Kumar, he was working as a driver for one Pramod Kumar Sharma and that he FIR No.1186/07 PS Malviya Nagar Page 2 of 37 SC No. 97/08 was driving his Indica car bearing no. DL 1YB 0426 for the last two months and that on the night of 01.12.2007, he started for Noida from Tivoli Garden and at about 01.30 AM while he was passing by M.B. Road, 34 boys standing by the bus stand signaled him to stop his car and when he did so, they requested him to take them to Batra Hospital. He demanded Rs.10/ per passenger and when they agreed, he allowed them to sit in the car. He further informed the police that on the way, out of the boys sitting on the rear seat, two of them caught hold of his neck and pulled him behind and the car had to be stopped. Thereafter, one of the boys got down from the car and sat on the driver's seat and drove the car towards the forest near Shamshan Ghat, Lado Sarai. As per the complainant Sunil, on reaching far into the Shamshan Ghat, the said boys then tied his hands with his socks and his legs with the seat belt of the car and took away the car and they also took away his mobile phone bearing no. 9968385195, Rs. 450/ and his driving license.
(b) On the basis of the complaint filed by the complainant, the FIR in the present case was registered u/s 392/34 IPC and investigation was handed over to SI Jitender Kashyap. The said police official alongwith the complainant went to Shamshan Ghat, Lado Sarai, inspected the said spot, prepared the site plan and also took into possession one pair of chappals, one waist belt and one car seat belt alongwith one pair of brown colour FIR No.1186/07 PS Malviya Nagar Page 3 of 37 SC No. 97/08 socks which the complainant at the spot produced before him and informed him that his hands and legs had been tied by the said boys using the said articles and that the chappals were of one of the said boys.
(c) During further investigation, the sketch of the suspects was got prepared as per the information supplied by the complainant and the IMEI number of the mobile phone of the complainant bearing no. 9868385195 was got obtained and the said number was put on grey list and it was revealed during investigation that the SIM that was currently being used on the said mobile was 9873635898. The matter was further investigated and it was found that the phone number 9873635898 was subscribed in the name of one Sunil Kumar Gupta r/o Panchsheel Garden, Shahadara. The said person was then joined in the investigation and he informed the investigating officials that he had purchased the said mobile and had given the same to his driver, one Sriniwas @ Sunil, for his use. Thereafter, the said Sriniwas @ Sunil was joined in the investigation and he informed that the mobile phone given to him by his employer had got damaged after falling in water and that on 02.12.2007, the son of his mama, one Ajay Kashyap who resides with him in his jhuggi gave him an instrument make Nokia 1600 for use and that he therefore had been using his SIM in the Nokia mobile instrument which had been given to him by his cousin Ajay Kashyap. He further informed the investigating agency that he returned FIR No.1186/07 PS Malviya Nagar Page 4 of 37 SC No. 97/08 the said mobile instrument to Ajay on 06.12.2007 and on the said day, Ajay informed him that he alongwith his associates Bhupender, Sri Krishan, Bikram and Jaipal had robbed an Indica car on the intervening night of 0102.12.2007 and had snatched the mobile instrument of its driver.
(d) Pursuant to receiving the aforementioned information, search was then made for the suspects Ajay Kashyap, Bhupender, Sri Krishan, Bikram and Jaipal and on 09.12.2007, a secret information was received that Ajay Kashyap alongwith his associates is present in his house. A raiding party was constituted and the said team then reached H.No. 2, Baba Lucky Nath ki Kutiya, Ward No.3, Mehrauli and accused Ajay, Sri Krishan and Bhupender Kumar were apprehended. All the three accused persons admitted their involvement in the robbery and informed the investigating officer that they had sold the Indica car to one Salimuddin r/o Meerut, UP for an amount of Rs.26,000/ and that since the said person had only paid them an advance amount of Rs.3000/, Bikram and Jaipal had gone to Meerut to collect the balance amount. Thereafter accused Bhupender led the raiding team to his house and got recovered a belt from his house and Sri Krishan got recovered the stereo of Indica car from his premises. All the three accused persons were arrested and were sent to judicial custody after production in the court.
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(e) On 10.12.2007, on the basis of a secret information, accused Jaipal and Vikram were apprehended from Mehrauli bus stand and they also, after their apprehension, disclosed about robbing the car. Jaipal also further disclosed that though he alongwith Bikram had gone to UP to collect the balance payment from Salimuddin, he did not make any payment and to meet their expenses, he sold the mobile phone of the complainant which was given to him by Ajay Kashyap for Rs.400/ to Salimuddin. The said two accused persons were also then arrested and were produced before the court and were sent to judicial custody.
(f) During further investigation, Test Identification proceedings of the accused persons were held and during the said proceedings, the complainant Sunil was able to only identify the accused Jaipal. Thereafter the police custody of all the accused persons was again taken and at the police station, the complainant was again called and he there identified all the accused persons and in particular stated that it was Bikram and Sri Krishan who had caught hold of his neck, accused Bhupender had driven the car towards Shamshan Ghat, Jaipal had restrained him on the back rear seat and Ajay Kashyap had snatched away the keys of the car. The investigating team then tried to trace out the suspect Salimuddin but he could not be traced out. NBW were then obtained against him from the concerned court and though Salimuddin could not be arrested in execution FIR No.1186/07 PS Malviya Nagar Page 6 of 37 SC No. 97/08 of the warrants, he himself surrendered before the court of Ld. MM. He was then formally arrested and his police custody was taken. He then inter alia disclosed that he had sold the Indica car in question to one Shamsher for Rs.50,000/ and that he can get the said person Shamsher arrested and can also get recovered the mobile phone which he had purchased from Jaipal. This accused Salimuddin then led the investigating team to the residence of Shamsher at Saharanpur but he could not be apprehended as he had absconded. Thereafter at the pointing out of accused Salimuddin, the mobile phone make Nokia of the complainant was recovered from a tea stall/jhuggi on the Delhi Meerut Road.
3. Based on the aforementioned evidence collected during investigation, chargesheet was filed against all the aforementioned accused persons on 03.03.2008. Thereafter on 06.03.2009, a supplementary chargesheet was again filed against accused Shamsher and he is shown to have been arrested on 19.06.2008. Pursuant to his arrest, this accused inter alia disclosed that though he had purchased the Indica car in question from Salimuddin for Rs.50,000/, after coming to know of the arrest of Salimuddin, he got scared and sold the same as scrap.
4. Taking into consideration that no recovery was effected from accused Shamsher and the only material against him was the disclosure of accused FIR No.1186/07 PS Malviya Nagar Page 7 of 37 SC No. 97/08 Salimuddin, this accused was discharged by one of the Ld. Predecessors of this court vide order dated 06.06.2009. Vide the same order, charges were framed against the remaining accused persons except accused Salimuddin for the offences punishable u/s 395/34 IPC. In the alternative, charges u/s 411 IPC were also framed against all the accused persons for having been found in possession of stolen property. All the accused persons pleaded not guilty to the charges framed against them and claimed trial. The prosecution in order to prove its case has examined 21 witnesses.
5. Complainant Sunil Kumar has been examined as PW3. In his deposition, except the time of incident, he has reiterated the assertions made by him in the complaint filed by him at PS Malviya Nagar. According to his examination in chief before the court, the incident happened at about 10.3011.00 PM and not at 01.30 AM. During trial he identified the accused Sri Krishan, Bikram and Jaipal as the persons who sat on the back seat of the car and caught hold of his neck from behind. He further identified accused Bhupender as the person who came to the front seat after he (the complainant) was pulled behind to the rear seat.
6. PW1 Sunil Kumar Gupta is the person in whose mobile instrument the SIM card of the complainant's phone was being used after being stolen. This witness has inter alia deposed that he had given a Vodafone phone FIR No.1186/07 PS Malviya Nagar Page 8 of 37 SC No. 97/08 bearing SIM no. 7873635898 to his driver, one Sriniwas in the year 2006 for use. The said driver Sriniwas has been examined as PW2 and he has inter alia deposed that the Vodafone mobile given to him by his owner was being used by him in the year 2007 and that the screen of the said phone got damaged after the mobile fell down in water and that accused Ajay Kashyap on 02.12.2007 gave him a mobile instrument and told him that he can use the said mobile till his mobile gets repaired. According to this witness, accused Ajay Kashyap used to reside near his house at Mehrauli and that w.e.f 02.12.2007 to 05.12.2007 he had used the mobile instrument given to him by accused Ajay Kashyap by inserting his SIM card therein.
7. PW4 ASI Komal Singh is the Duty Officer who registered the FIR in the present case and he has produced the original FIR and the DD register before the court as per which the copies of relevant DD and FIR have been duly exhibited.
8. PW5 Ct. Yogender is the DD writer who has placed before the court the DDs recorded by him with respect to the departure and arrival entry of the raiding team.
9. PW6 Israr Babu, an official of the Vodafone Essar Mobile has filed on record the Customer Application Form of Sunil Kumar Gupta as per FIR No.1186/07 PS Malviya Nagar Page 9 of 37 SC No. 97/08 which he was the the subscriber of mobile number 9873635898. He has also produced on record the call details of the said number for the period 03.12.2007 to 06.12.2007.
10.PW7 Vinod Kumar, an official of MTNL has placed on record the Customer Application Form of Sunil Kumar Sharma i.e. the complainant as per which he was the subscriber of mobile number 9968385195.
11.PW18 Pramod Kumar Sharma is the owner of the car that was stolen and he has inter alia deposed that during the relevant period, his Tata Indica car was being driven by his driver Sunil Kumar and that during investigation, his statement was recorded by the investigating officer and that he had handed over the photocopy of the RC and the insurance of his vehicle to the IO.
12.PW16 and PW17 are the Ld. Judicial Officers who had got conducted, the TIP of the accused persons and the case property respectively. The proceedings conducted by them have been duly exhibited on record.
13.PW21 Rakesh Soni is also an official of MTNL and he has inter alia deposed that on 03.12.2007, a mail was received in MTNL from Special Cell, South District requesting for the name and address of the subscriber of the mobile number 9968385195 pursuant to which the records of the said phone were supplied to the Special Cell.
FIR No.1186/07 PS Malviya Nagar Page 10 of 37 SC No. 97/08
14.PW10 ASI Devender Singh, PW11 Ct. Vijender, PW12 ASI Shiv Kumar, PW13 HC Ram Tek, PW14 HC Vikram, PW15 Aishvir Singh, PW16A Ct. Jitender, PW19 HC Jagdish Pal, PW20 SI Jitender Kashyap are the police officials who have participated in the investigation of the present case. Out of the same, it is PW20 SI Jitender Kashyap who is the main investigating officer. SI Jitender Kashyap has deposed in detail about the investigation that was carried out by him. He has exhibited on record the site plan, seizure memos and the recovery memos that were prepared by him during investigation.
15.The entire aforementioned evidence proved on record by the prosecution was put to all the accused persons and their statements u/s 313 Cr.PC were recorded wherein all the accused persons, except accused Jaipal denied their complicity in the present case. As regards accused Jaipal, he in his statement tendered u/s 313 Cr.PC, has inter alia admitted that accused Ajay Kashyap, Bhupender, Bikram and Sri Krishan were all known to him and that they used to consume liquor together and that the said four persons had told him on about 08.12.2007 or 09.12.2007 that they had robbed a Tata Indica car and that they are going to Meerut to sell the same. As per his statement, he had also accompanied them to Meerut where the deal of the car was finalized with accused Salimuddin. This FIR No.1186/07 PS Malviya Nagar Page 11 of 37 SC No. 97/08 accused had also filed an application u/s 315 Cr.PC and has stepped into the witness box and he has been examined as DW3. He was cross examined by the Ld. APP as well as on behalf of the other accused persons.
16.Accused Sri Krishan has produced his wife DW1 Smt. Amrita in the witness box and she has inter alia deposed that on 07.12.2007 at about 08.00 PM, 34 police officials had come to her house and had asked about her husband and that she had told them that he has gone out on work. According to her deposition, the police officials informed her that they are from Saket Chowki PS Malviya Nagar and told her to ask her husband to report to the Police Station. She has further stated that on return of her husband from work, she informed him about the visit of the police officials and that then he went to PS Malviya Nagar but thereafter did not return and she had been informed that he had been implicated in this case. DW2 Ms. Suman is the wife of accused Ajay Kashyap and she has inter alia deposed that he husband has been falsely implicated in this case at the instance of one Sunil who is the son of bua of her husband.
17.Final arguments have been advanced by the Ld. APP, Ld. Counsel Sh. D.C. Bharadwaj and Legal Aid Counsel Sh. Arvind Kumar for accused Jaipal. Ld. Counsel Sh. Bharadwaj has also filed written submissions on record.
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18.Ld. APP for State has mainly contended that the identification of the accused persons by the complainant in the court, the recovery of the articles belonging to the complainant and the stereo and jack of the stolen car from the possession of the accused persons and the statement of accused Jaipal given u/s 315 Cr.PC before this Court completely proves the case of the prosecution that it was the accused persons (except Salimuddin) only, who had robbed the complainant. He has further contended that the deposition of PW2 Sriniwas further proves that the mobile phone of the complainant was in the possession of accused Ajay Kashyap on the very next day of the incident and further the disclosure of accused Jaipal reveals that the said mobile phone was sold by the accused persons to accused Salimuddin, from whose possession the mobile phone was ultimately recovered. It is thus the contention of Ld. APP that accused Salimuddin is also liable to be convicted u/s 411 IPC.
19.On the other hand, Ld. Defence counsel Sh. D.C. Bharadwaj has vehemently contended that the prosecution has utterly failed to prove its case against the accused persons beyond reasonable doubt and that the evidence on record is not at all sufficient to convict any of the accused persons. He has pointed out that the investigating agency could not even recover the car robbed. He has further pointed out that it is a matter of record that the complainant, during the TIP proceedings, was unable to FIR No.1186/07 PS Malviya Nagar Page 13 of 37 SC No. 97/08 identify accused Bikram, Ajay Kashyap and Bhupender and therefore submits that their identification in the court for the first time has no relevance in the eyes of law. Ld. Defence counsel has also pointed out various lacunae in the prosecution evidence which according to him throw a grave doubt on the recovery of articles from the accused persons. He has also submitted that none of the so called recoveries have been witnessed by an independent persons and that the investigating officials have simply planted some articles upon the accused persons to implicate them in the present case. As regards the testimony of accused Jaipal, the contention of the Ld. Defence counsel is that the said testimony cannot be at all relied upon by this court for this accused has very conveniently exculpated himself from the entire incident, though he is the sole accused who was identified by the complainant during TIP proceedings. His contention is that this accused was the only accused who remained in judicial custody for a period of almost three years and that apart from the present case, he is also involved in other theft cases and that it is his previous criminal antecedents coupled with the fact that he was identified by the complainant during TIP proceedings, which had prevented the Ld. Predecessor of this court from granting him bail. His submission is that the evidence of such a tainted witness should not be relied upon by this court to determine the guilt of the other accused persons. In support of his FIR No.1186/07 PS Malviya Nagar Page 14 of 37 SC No. 97/08 contentions, Ld. Defence counsel has relied upon the following judgment:
● Toran Singh Vs. State of Madhya Pradesh 2002 (6) CRJ 70 ● Mohan Lal Ganga Ram Gehani Vs. State of Maharashtra, AIR 1982 (SC) 839 ● State of U.P. Vs. Bhagwan and Ors 1997 JCC 653 (SC) ● Nanwar Dubey Vs. State of U.P. 1995 (3) Crime 694 (SC) ● Anmol Singh vs. Asharfi Ram 1998 JCC (SC) 12 ● Mohan Singh vs. State of Haryana 1995 (2) Crime (SC) 224 ● Kochu Matheen Kannu Salim vs. State of Kerala 1998 (2) JCC (SC) 168 ● Zwinglee Ariel Vs. State of Madhya Pradesh AIR 1954 S.C. 15 (Vol. 41 C.N. 6) ● Suresh Budharmal Kalani @ Pappu Kalani Vs. State of Maharahstra, AIR 1998 SC 3258 ● Bijara Panda @ Butia Vs. State of Orissa, 1996 (2) Crimes 351, Orissa High Court ● Dwarka Prasad Vs. State of Uttar Pradesh, Crime III1993 (1) S.C. 975 ● Koli Ramsing Gandabhai Vs. State of Gujarat, 1998 (2) Crimes 315, Gujarat High Court (DB) ● Kirpal Singh vs. Mst. Kartaro and others AIR 1980 Rajasthan 212 ● Ram Lakhan Singh and Ors. Vs. The State of Uttar Pradesh AIR 1977 SC 1936
20.Sh. Arvind Kumar Singh, Legal Aid Counsel for accused Jaipal has contended that the identification by the complainant of accused Jaipal during TIP proceedings should not be given much weightage by this court because the cross examination of the complainant has revealed that accused persons were shown to him at the police station before the TIP FIR No.1186/07 PS Malviya Nagar Page 15 of 37 SC No. 97/08 proceedings. As regards the statement tendered by this accused u/s 313 Cr.PC and his deposition u/s 315 Cr.PC, Ld. Counsel Arvind Kumar Singh has submitted that in the said statement this accused has not admitted at all that he was one of the persons who had robbed the complainant and his further submission is that in case this court is not inclined to believe his statement that the other accused persons had also accompanied him to Meerut to dispose the stolen car, then this Court cannot by only relying upon a part of the said statement convict him for the offence u/s 411 IPC.
21.In rebuttal Ld. APP has submitted that the Hon'ble Supreme Court has repeatedly made it clear that the identification tests during investigation do not constitute substantive evidence and that the said tests can only be used as corroborative evidence before the court. In this regard, he has specifically referred to the judgments of Hon'ble Supreme Court pronounced in case titled as State of Maharashtra Vs. Suresh JT 1999(9) SC 513 and Matru Vs. State of UP AIR 1971 SC 1050. Ld. APP has further submitted that the mere fact that public witnesses were not joined during the recovery of stolen articles from the accused persons is not a ground to doubt the testimony of the police officials. He has pointed out that the investigating agency could crack the present case only due to the scientific evidence i.e. the mobile call records of the phone of FIR No.1186/07 PS Malviya Nagar Page 16 of 37 SC No. 97/08 the complainant and that this scientific evidence cannot be doubted by this court. He has also contended that the statement of the accused Jaipal tendered u/s 315 Cr.PC on oath corroborates the case of the prosecution at least with respect to the disposal of the stolen car by the accused persons. He has contended that the court must disbelieve the part where the accused Jaipal has deposed that he along with the other coaccused persons had not robbed the complainant and his contention is that if the statement as a whole is considered it is clear that all the accused persons except Salimuddin, had robbed the complainant and thereafter had sold the stolen car to accused Salimuddin. In support of his contentions, Ld. APP has also relied upon the following judgments:
● Ronny @ Ronald James Alwaris etc. vs. State of Maharashtra 1064 of 1997 with Cr. No. 106566 of 1997 ● Sanjay @ Kaka Vs. State of NCT of Delhi (2001) 3 SCC 190 ● Staila Sayyed Vs. State Manu/DE/1424/2008 ● Jarnail Singh vs. State of Punjab 2011 Crl. L.J. 1738 (SC)
22.I have carefully considered the submissions made by Ld. Counsels and have gone through the record of the entire case and the judicial dicta referred to by the Ld. Counsels. No doubt, the Hon'ble Supreme Court in the judgments relied upon by the Ld. APP has categorically held that identification tests do not constitute substantive evidence and it is the identification in the court which is the substantive evidence. However in FIR No.1186/07 PS Malviya Nagar Page 17 of 37 SC No. 97/08 the very said judgments, the Hon'ble Supreme Court has also observed that the purpose of prior test identification, is to test the memory of the witnesses based upon first impression and it is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court, as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. Now in the present case when the complainant failed to identify the accused Bhupender, Bikram and Ajay in the test identification parade which was held soon after the apprehension of the accused persons and within two weeks of the incident, the identification of these accused persons in the court by the complainant, in the considered opinion of this court cannot be treated of much value more so when the testimony of this witness has not inspired much confidence. He has categorically admitted in his cross examination that he had met the accused persons in the police station and he was told their names by the police officials. In view of the such categorical statement given by the complainant during trial, in the considered opinion of this Court the identification of the accused persons in Court by the complainant is to be considered valueless. The Hon'ble Supreme Court in Mohan Lal's case (Supra - a judgment relied upon by the Ld. Defence Counsel) after taking note of the fact that the complainant during trial admitted that the names of the accused persons were told to him by the FIR No.1186/07 PS Malviya Nagar Page 18 of 37 SC No. 97/08 police, held that the identification of such accused persons by the complainant was valueless. It is also to be taken note of that in the first complaint filed by the complainant in the police station, he had described the persons who had robbed him to be 34 boys, and not five men, as has been deposed by him in the Court. Further the age of accused Bhupender and Sri Krishan as per the own documents filed by the prosecution was about 30 years on the date of the alleged incident and it is indeed difficult to imagine that the complainant would have referred to them as boys, more so looking into their physical appearance. It is also relevant to mention herein that as per the assertions made in the charge sheet the sketches of the suspects were got prepared, based on the description given by the complainant, however it is a matter of record that none of the said sketches have been proved before this Court. The only inference that can be drawn in such circumstances is that the sketches drawn on the basis of description given by the complainant, did not later match with the description of the accused persons and that is the reason the prosecution has not chosen to rely upon them. In view of the discussion herein above this Court is of the considered opinion that mere fact that the complainant identified the accused persons in the court as being the assailants cannot be made the sole basis for determining the guilt of the accused persons, particularly in view of the fact that the complainant in his cross FIR No.1186/07 PS Malviya Nagar Page 19 of 37 SC No. 97/08 examination has admitted that after he had failed to identify the accused persons in the test identification proceedings, he was shown the accused persons in the police station and was informed about their names.
23.Coming now to the contention of Ld. APP that recovery of some of the articles of the stolen car and the complainant, from the accused persons corroborates the stand of the prosecution that it was the accused persons who had committed the offence in the present case, this court is constrained to observe that none of the recoveries shown to have been allegedly made by the investigating team, at the instance of the accused persons, has inspired any confidence in the mind of this Court. As narrated herein above present is a case where the stolen car could not be got recovered during investigation. However, as per the version of the investigating agency, each of the accused persons who had robbed the complainant chose to retain with himself, one or the other articles of the car or that belonging to the complainant. According to the version put forward before this Court, accused Ajay Kashyap chose to retain the car jack while accused Sri Krishan kept the car stereo with him, accused Bhupender kept the belt of the complainant in his possession, Bikram retained the purse and shoes of the complainant and finally Jaipal sold the mobile of the complainant to accused Salimuddin who during investigation got the said mobile recovered from a jhuggi on the Delhi FIR No.1186/07 PS Malviya Nagar Page 20 of 37 SC No. 97/08 Meerut road. It is a matter of record that none of the aforementioned recoveries is witnessed by any independent public witness. In Kochu Matheen's case (Supraa judgment relied upon by the Ld. Defence Counsel) the Hon'ble Supreme Court has observed that where no independent witness was joined by the investigating officials during asserted recovery proceedings, the recovery of the weapon of offence at the instance of accused becomes doubtful. No doubt in the judgments referred to by the Ld. APP Hon'ble Supreme Court has held that non examination of the independent witnesses by prosecution does not lead to the conclusion of false implication, yet in the very same judgments the Hon'ble Supreme Court has clearly held that as a rule of prudence it is desirable that the evidence of the police personnel should be corroborated preferably by a reliable witness unless the prosecution has been able to prove that despite their best efforts they could not make independent witnesses join the proceedings. Now in the present case the main investigating officer PW20 Jitender Kashyap in whose presence the stolen articles were assertedly recovered at the instance of accused persons has nowhere deposed that during any of the said recoveries he made any effort to join any public witness. Apart from the said lacuna in the investigation, none of the members of the investigating team who had assertedly participated in the recovery proceedings have deposed consistent facts FIR No.1186/07 PS Malviya Nagar Page 21 of 37 SC No. 97/08 with respect to the alleged recovery proceedings. First and foremost it is to be noted that in the chargesheet there is not a whisper that the car jack was got recovered from the house of accused Ajay Kashyap or that accused Bikram had got recovered the purse and shoes of the complainant. Further though it has been asserted in the charge sheet that the belt of the complainant was recovered from the house of Bhupender, PW11 Ct. Vijender, who is one of the police officials who assertedly witnessed the recovery proceedings, has deposed that the said belt was recovered from the house of Ajay Kashyap. Further though according to PW12 ASI Shiv Kumar, family members of the accused Bhupender were present when his house was searched and the belt of the complainant was recovered, PW19 HC Jagdish Pal has specifically deposed in his cross examination that the house of accused Bhupender was closed and Bhupender had himself opened the door of his house i.e. in other words according to him no family members of accused Bhupender were present at the time of recovery proceedings. Further, in the considered opinion of this Court the mere asserted recovery of a belt purportedly belonging to the complainant from underneath a cot in the house of accused Bhupender can hardly be held sufficient for convicting accused Bhupender u/s 411 Cr.PC for not only did the complainant never mention about the taking of his belt by the assailants, it is quite difficult to accept that an accused would for almost 10 FIR No.1186/07 PS Malviya Nagar Page 22 of 37 SC No. 97/08 days keep a stolen article and that too an innocuous article as a belt underneath a cot, for it to be conveniently recovered by any person. The recovery of the purse and the shoes assertedly belonging to the complainant, at the instance of Bikram, from the Shamshan Ghat has also hardly inspired any confidence in the mind of this Court for the said place of recovery is a place open to all public. Further, though according to PW13 accused Bikram had got recovered the purse and shoes of the complainant from his room situated near Khandhar, the main investigating officer PW20 Jitender Kashyap and PW14 HC Vikram have deposed that the said recovery was made from the bushes in the Shamshan Ghat. In view of such discrepancies in the depositions of the police officials, it can hardly be stated that the version put forward by the investigating agency is trustworthy and reliable. Further very interestingly the purse shown to have been recovered was found to contain only a photocopy of the driving license of the complainant, though as per the original complaint given by the complainant ExPW10/B, his purse had contained his original driving license. In such view of the matter it does appear that the said purse has only been planted in the present case and has been falsely shown to have been recovered at the instance of accused Bikram.
24.It will also be relevant to mention herein that though as per the version of the investigating agency, both the car jack and the stereo recovered from FIR No.1186/07 PS Malviya Nagar Page 23 of 37 SC No. 97/08 Ajay Kashyap and Sri Krishan were identified by the owner of the stolen car during TIP proceedings before a Ld. MM, it is to be taken note of that as per the depositions of the police witnesses who had assertedly witnessed the said recovery proceedings both on the car stereo and on the car jack, the RC number of the car was printed in white paint. Now if such a distinguishing mark was already present on the said items at the time of their recovery, then their identification by the owner thereof in TIP proceedings can hardly be said of any relevance more so when the proceedings of the TIP conducted by the Ld. MM proved on record, show that no precautions were taken by the Ld. MM to conceal the said RC number of the car on the said two articles. Moreover it is also relevant to mention herein that the owner of the said two articles, PW18 Pramod Kumar Sharma in his cross examination, has categorically stated that during investigation he was called in the police station where he identified his stereo, by seeing the name of the company and model thereof and that he cannot tell any other specific mark of identification thereon. In other words as per his deposition, not only was the stereo shown to him in the police station, thereby defeating the very purpose of TIP, the stereo that was shown to him at the PS was not bearing the RC number of his vehicle in white paint thereon. In such view of the matter that only inference that can be drawn is that the police officials on their own wrote the RC number FIR No.1186/07 PS Malviya Nagar Page 24 of 37 SC No. 97/08 of the car on car jack and car stereo and then got it identified as the stolen articles before the Ld. M.M.
25.Similarly recovery of mobile phone of the complainant, at the instance of accused Salimuddin is fraught with suspect. The said phone has been shown to have been recovered from a jhuggi at the pointing out of accused Salimuddin. As per the members of the raiding team who had recovered the said mobile phone, accused Salimuddin had led the raiding team to one jhuggi type eating place on the Delhi Meerut road near Mayur Hotel. Now when PW16A Ct. Jitender is asked to describe the said jhuggi, he has evasively deposed that neither does he remember whether there was some light in the said jhuggi nor does he remember whether there was any place to sit or not in the said jhuggi. He is also unable to state as to from where in the said jhuggi had the accused Salimuddin taken out the said mobile. If this Constable was actually present during the asserted recovery, there is no reason why he could not point out the exact place of recovery of the mobile in question. Further though PW20, the main investigating officer, SI Jitender has deposed that the mobile was found in a chai ki dukan and it was concealed in a place under a shed in the said shop, he has not deposed a single fact as to what investigation was done by him with respect to the ownership/occupancy of the said jhuggi and has merely stated in his cross examination that the said shop was completely open and was like a shack FIR No.1186/07 PS Malviya Nagar Page 25 of 37 SC No. 97/08 structure. No site plan of the said jhuggi/chai ki dukan, showing its exact location, has been filed on record. In such circumstances, in the absence of public witness to the recovery proceedings of the mobile phone, it is indeed difficult to convict the accused Salimuddin for the recovery of the stolen mobile phone.
26.Coming now to the most important contention made by Ld. APP namely that in this case, the investigating agency was able to collect scientific evidence which shows the complicity of accused Ajay Kashyap it will be relevant to point out that the investigating officer failed to collect during investigation, any certificate u/s 65B of the Evidence Act to show the authenticity of the said scientific evidence collected by him. As narrated hereinabove, the version put forward by the IO is that he first gathered the information about the mobile phone of the complainant from the MTNL and that it was the MTNL officials which provided him the IMEI number of the phone of the complainant. Very interestingly, the said information purportedly handed over by the MTNL to the IO was not placed on record alongwith the chargesheet nor was proved by the IO when he was first examined in the court. The official from the MTNL, PW7 that was summoned by the prosecution also could not furnish the call detail records of the mobile phone of the complainant as according to him, the call detail records of a mobile are not retained after a period of one year. It is only FIR No.1186/07 PS Malviya Nagar Page 26 of 37 SC No. 97/08 during the final arguments when the Ld. Defence Counsel pointed out the said lacuna in the case of the prosecution, did it come to the notice of Ld. APP that the IO had retained a copy of the said records on the police file and thereafter an application was filed by the prosecution u/s 311 Cr.PC for proving the said mobile records of the phone in question. The said application was allowed by this court and IO SI Jitender Kashyap was recalled and he then deposed that he had got a mail sent to MTNL through Nodal Officer at the PS and had asked for the call detail records of mobile number 9968385195 for the period 25.10.2007 to 03.12.2007 and the said records Ex.PW20/X were forwarded to him. Another official from MTNL was also additionally summoned as PW21 and though he reiterated that the MTNL does not have in its office any call details pertaining to the mobile phone in question, he could verify that on 03.12.2007, a mail request had been received from Inspector Vijay Singh of South District pursuant to which certain mobile records were sent. He further deposed that Ex.PW20/X appear to be the said records as the time of procuring the said details from main server is mentioned on its last page.
27.Now the contention of the Ld. Defence counsel Sh. Bharadwaj is that the said mobile records, Ex.PW20/X cannot be at all read by this court in evidence for the following reasons:
● He has pointed out that no person has deposed that the said records are FIR No.1186/07 PS Malviya Nagar Page 27 of 37 SC No. 97/08 the true records of the mobile phone in question.
● He has further pointed out that in the said records the IMEI number of the mobile phone till 07.11.2007 is shown to be 351865014106920 while the IMEI number assertedly of the complainant namely 354574017533220 started appearing in the said records only w.e.f 08.11.2007. The contention therefore is that as per the asserted said records, the complainant would have purchased the said mobile instrument with the said IMEI number only w.e.f 08.11.2007 i.e. only a few days before the incident and would have therefore mentioned the said fact in his evidence or would have atleast remembered the name of the shop from where it was purchased. It is pointed out that however when the complainant was put questions in his crossexamination with respect to the said mobile phone, he did not at all say that he had purchased it only a few days before the incident but on the contrary, not only did he fail to produce the bill for the same, he was even unable to tell the name of the shop from where he had purchased it. It is also pointed out that though very interestingly PW20 SI Jitender Kashyap has deposed in his cross examination that the complainant had revealed to him that he had purchased a second hand mobile from Nikhil Communication and had even shown him the bill of the same, he is unable to explain why he did not retain a copy of the said bill and file it FIR No.1186/07 PS Malviya Nagar Page 28 of 37 SC No. 97/08 on record.
● It has also been pointed out by the Ld. Defence Counsel that as per the version put forward by investigating agency, the police had first questioned Sunil Kumar Gupta in whose name the SIM, which was assertedly found operating on the mobile phone of the complainant, existed and only thereafter did they come to know that the said mobile instrument was being used by the driver of Sunil Kumar Gupta namely Sriniwas and that thereafter on 07.12.2007 they recorded the statement of Sriniwas. Contrary to this version, the said Sunil Kumar Gupta in his crossexamination had stated that he was interrogated by the police for the first time in this case on 23.12.2007. Thus according to his deposition he had not informed the police about the mobile phone being used by Sriniwas prior to this date.
● It has also been pointed out that PW2 Sriniwas in his evidence has categorically deposed in his crossexamination that the mobile instrument that was given to him by accused Ajay Kashyap was Nokia 1100, though as per the version put forward by the prosecution, the robbed mobile phone was Nokia 1600.
● It has also been pointed out by the Ld. Defence Counsel that though as per the version put forward by the investigating agency, Sriniwas had informed them that Ajay Kashyap had told him on 6/12/2007 itself that FIR No.1186/07 PS Malviya Nagar Page 29 of 37 SC No. 97/08 he along with four of his friends i.e. coaccused persons in this case had robbed a person and had taken away his mobile and that therefore the investigating officer had put surveillance for the accused persons named by Sriniwas and had then finally apprehended them on the basis of secret information, this person Sriniwas in his deposition before the Court has categorically stated that it is only after the arrest of the accused persons did he come to know that the accused persons had committed a robbery. According to the Ld. Defence counsel this Court must also bear in mind that the wife of accused Ajay Kashyap has deposed on oath that this person Sriniwas had an enmity with her husband and that it cannot be ruled out that he colluded with the police officials to falsely implicate the accused Ajay Kashyap in this case.
28.In the considered opinion of this Court taking into consideration, the aforementioned discrepancies pointed out by the Ld. Defence Counsel in the evidence put forward by the prosecution, which remain unrebutted by Ld. APP, this Court cannot rely upon the mobile records produced by the prosecution, more so in the absence of a certificate issued u/s 65B of the Evidence Act.
29.Coming now to the contention of Ld. APP namely, that the deposition of one of the accused persons namely, Jaipal tendered before this court u/s FIR No.1186/07 PS Malviya Nagar Page 30 of 37 SC No. 97/08 315 Cr.PC completely corroborates the case of the prosecution in so far as this accused admits that he along with the accused persons Ajay Kashyap, Sri Krishan, Bhupinder Kumar and Bikram had gone to Meerut, U.P. to dispose off the stolen vehicle, the contention of the Ld. Defence Counsel Sh. Bhardwaj, (who was earlier representing all the accused persons but when the accused Jaipal took u/s 313 Cr.PC a stand contrary to the interests of the other accused persons, he withdrew his vakalatnama for this accused) is that this accused, under the impression that he has remained in custody in this case already for 3 years, which is the maximum punishment which can be imposed upon him for having dealt with a stolen car, has deliberately and out of spite, deposed false facts against his remaining coaccused persons so as to falsely implicate them in this case. He has pointed out that in his cross examination this accused has admitted that he has five cases registered against him four for theft and one for possessing a knife and has further volunteered to state that in one of the cases, Sri Krishan was arrested first and he had named him as his coaccused.
30.After carefully considering the submissions made by both the Ld. APP and the Ld. Defence Counsel, this Court is of the considered opinion that the testimony of accused Jaipal tendered u/s 315 Cr.PC cannot be made the sole basis for holding any of the accused person guilty even for the FIR No.1186/07 PS Malviya Nagar Page 31 of 37 SC No. 97/08 offence punishable u/s 411 Cr.P.C. As discussed herein above in the said statement the accused Jaipal has completely exculpated himself with respect to the alleged robbing of the complainant. Further there are two versions even with respect to the disposal of the stolen vehicle, put forward by this accused before this Court one given by him u/s 313 Cr.PC and other on oath u/s 315 Cr.PC. In his statement that was recorded by this Court u/s 313 Cr.PC he had stated that on 08.12.07 or 09.12.07, his friends Ajay Kashyap, Sri Krishan, Bhupinder Kumar and Bikram, gave him a telephone call and called him at ISBT and that when he reached there he saw all four of them sitting in a Tata Indica and that they told him that they had to go to Meerut. He went on to state that he accompanied them since even on earlier occasions they used to roam around together and after reaching Meerut, they first met one Abubakar who then introduced them to Salimuddin, who was his Chacha. He then further stated that Sri Krishan and Bhupinder had some talk with Salimuddin and that he does not know for how much was the deal of the car finalized for but all of them came back to Delhi via train after leaving the car at Meerut itself. He further specifically stated that he had not been paid any money by any of the accused persons nor had they told him how did they had got hold of the Tata Indica and that he did not at all know that they had committed dacoity. He further took a stand that he was arrested FIR No.1186/07 PS Malviya Nagar Page 32 of 37 SC No. 97/08 in this case while he was coming back from his duty with Sri Krishan and was kept at the police chowki for about 3 days. Now when he stepped into the witness box he makes very material contradictions to the said statement given by him u/s 313 Cr.PC. As per his deposition on oath, he did not at all meet Salimuddin or any Abubakar and that both Bhupender and Sri Krishan had, after reaching a Gym club at Meerut, telephoned a person and after a while had left the said club with a person and had returned after ½ an hour and had informed them that they had sold the car for Rs. 26,000/. He further makes an improvement by deposing that after they returned to Delhi, Sri Krishan again telephoned him next day and told him that that he has to accompany him to Meerut for collecting the payment and that he did so and they went to Gym club but the person who was to come to give them money did not turn up. He has further deposed on reaching Delhi from Meerut when he and Sri Krishan went to his room at Sangam Vihar the police officials caught hold of them. The aforementioned improvements were put to the accused by this court itself and it was put to him that he had initially in his statement u/s 313 Cr.PC informed this court that in his presence, one Abubakar had introduced Salimuddin to him and his other associates and further that he had taken a stand that he did not know for how much was the deal struck for and that he was apprehended when he had come back from work. Very FIR No.1186/07 PS Malviya Nagar Page 33 of 37 SC No. 97/08 interestingly the accused on being asked about the said contradictions, stated that he had never informed such facts to the Court. In the considered opinion of this Court, the manner in which this accused has tried to wriggle out of contradictions in his testimony, hardly makes him a credible or trustworthy witness, on the basis of whose testimony alone this court can determine his or the guilt of the other accused persons. His deposition has not at all inspired any confidence in the mind of this court and therefore this court is of the considered opinion that his deposition alone cannot be relied upon by this court to determine his own guilt or the guilt of other accused persons in this case, more so when it is apparent that the prosecution has otherwise failed to prove the complicity of the accused persons in this case. In a case titled as Mohan Singh Vs. Prem Singh and another reported in 2002 (8) SC 7, the Hon'ble Apex Court has categorically held that if the prosecution evidence does not inspire confidence to sustain the conviction of an accused, the inculpatory part of his statement u/s 313 Cr.PC cannot be made the sole basis of his conviction. In another judgment titled as Suresh Budharmal Kalani AIR 1998 SC 3258 the Hon'ble Supreme Court has categorically held that a self exculpatory confession made by an accused is absolutely inadmissible in evidence. In Hanumant Govind Nargundkar' case (supra judgment FIR No.1186/07 PS Malviya Nagar Page 34 of 37 SC No. 97/08 relied upon by the Ld. Defence Counsel) Hon'ble Supreme Court has also observed that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him, for an admission must be used either as a whole or not at all. Keeping in view the said judicial dicta and the facts and the evidence produced in the present case, which has been discussed in detail in the preceding paragraphs, this Court is of the considered opinion that the self exculpatory statement given by accused Jaipal u/s 315 Cr.PC cannot at all be made the basis for determining the guilt of the other accused persons, when the evidence produced by the prosecution has not inspired any confidence in this Court. In the considered opinion of this Court the contention of Ld. APP that the portion in which the accused has admitted that he had gone to Meerut to dispose off the vehicle in question should be relied upon by this Court to convict at least this accused for the offence punishable u/s 411 Cr.PC cannot be upheld for this court cannot split up the statement given by this accused so as to only rely upon a portion thereof to hold that at least he has admitted that he had gone to dispose off the stolen vehicle. When this court is not believing this accused Jaipal, that the other coaccused persons in this case had accompanied him to Meerut, this Court cannot rely upon the admission of accused Jaipal that he had gone to Meerut to dispose off the vehicle and simply presume that he would have gone to FIR No.1186/07 PS Malviya Nagar Page 35 of 37 SC No. 97/08 Meerut with some other persons to dispose off the stolen vehicle and thereby convict him. Though it has been rightly contended by the Ld. APP that this Court cannot without any proof thereof, accept that this accused has deposed false facts only under a false impression that he has already gone the maximum imprisonment that could have been imposed upon him, it is the discrepancies between the statements tendered by this accused u/s 313 Cr.PC and 315 Cr.PC, that have made this court doubt the veracity and credibility of this witness. As discussed herein above initially he categorically stated that the deal of the car was finalised with accused Salimuddin but later on he conveniently chose to exculpate this accused by stating that he had never even met him. Further though in his statement u/s 313 Cr.PC he took a stand that he was not aware for how much was the car sold and that he was apprehended when he came back from work, he changed the said version and to further inculpate Sri Krishan stated that he had gone to Meerut with Sri Krishan to collect the balance payment of the sold car and on their return both he and Sri Krishan were both apprehended by the police.
31.To summarise, neither the testimony of the complainant is found sufficient to convict the accused persons for the offence punishable u/s 395 IPC nor the depositions of the police officials is found credible and trustworthy to convict the accused persons for the offences punishable u/s FIR No.1186/07 PS Malviya Nagar Page 36 of 37 SC No. 97/08 411 IPC. In view of the detailed discussion herein above this court is of considered opinion that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt. The accused persons are therefore hereby acquitted of all the charges framed against them. Announced in open Court th on this 28 day of September, 2013 (Anu Grover Baliga) Special Judge NDPS : New Delhi Patiala House : New Delhi FIR No.1186/07 PS Malviya Nagar Page 37 of 37