Delhi District Court
State vs (1) Amit Lohia @ Sonu on 17 January, 2014
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI
State Versus (1) Amit Lohia @ Sonu
S/o Sh Shyami
R/o 150, Near Water Tank
Villate Ghitorni
New Delhi
(2) Suni Kumar @ Don
S/o Sh Sukhbir Singh
R/o Baba Mohalla
V & P.O. Aya Nagar
New Delhi
SC No. 02/11
FIR No. 70/11
U/S: 365/392/397/411/34 IPC and 25 & 27 Arms Act
PS: Fatehpur Beri
Computer ID No.: 02406R0188342011
Date of institution : 18.07.2011
Date of reserving judgment : 06.01.2014
Date of pronouncement : 17.01.2014
Decision : Accused no. 1 convicted
for offence U/S 392/34
IPC only and accused
no. 2 acquitted.
J U D G M E N T
The accused persons have been sent to face trial by the SHO, PS Fatehpur Beri for commission of the offences punishable U/S 365/392/397/411/34 IPC and 25 and 27 of the Arms Act on allegations that on 05.04.2011, the complainant/PW2 Sh Ravi Verma of this case was driving his taxi/car make Toyota Innova having registration number DL 1YA 9374 and was returning back from Gurgaon to SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
2his house in Sangam Vihar, Delhi after finishing his duties. The above car was owned by a travel company named Ten Travels, Mahipalpur and the complainant/PW2 was working as a driver with them. When the complainant/PW2 had reached below the Arjangarh Metro Station at around 10:15 PM, a boy standing there had asked for a lift and the complainant/PW2 had stopped the vehicle and had given lift to the above boy, who had requested him to be dropped at a short distance.
2. It is alleged that when the above vehicle had reached near the Sultanpur Metro Station and the complainant/PW2 had stopped it there at the instance of the above boy, the above boy had pointed a katta (country made pistol) on the temple of the complainant/PW2 and suddenly another boy standing there had opened the driving side door of the vehicle and had occupied the driving seat of the vehicle, by pushing the complainant/ PW2 inside. The complainant/PW2 was made to sit between the above two boys and was also threatened to remain silent, otherwise he will be fired. The above second boy had then driven the vehicle and had taken a U-turn from the Sultanpur Metro Station towards Gurgaon and the vehicle was driven towards the farm house area near the above Sultanpur Metro Station and the complainant/PW2 was pushed out of the vehicle on the road of the farm houses and both the above boys had taken away his vehicle.
3. It is alleged that thereafter the complainant/ SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
3PW2 had given a call to the police on 100 number and had further intimated the above fact in his company. The above information was further conveyed at PS Fatehpur Beri through the PCR officials and one DD No. 34A was recorded at the PS, which was kept pending enquiry. On the next day of the incident, i.e. on 06.04.2011, in the early hours of morning, the complainant/PW2 had visited the PS, alongwith his employer, and had given his statement Ex. PW2/A before the IO/PW10 SI Karamvir Singh and the SHO of the PS had assigned the pending enquiry on the above DD No. 34A to the above IO/SI Karamvir Singh, who had then endorsed a rukka on the above statement of the complainant/PW2 for registration of a case U/S 392/397/34 IPC and had sent it to the DO of the PS at around 10:30 AM on that day, i.e. on 06.04.2011, and FIR Ex. PW3/A of this case was registered.
4. It is also alleged in the charge sheet that thereafter, the IO/PW10 had visited the above spot, alongwith the complainant/PW2 and some other police officials, and had made some enquiries and prepared the site plan Ex. PW10/A of the spot and had also recorded some supplementary statement of the complainant/PW2. During the search of the offenders and the above robbed vehicle, the IO/PW10, alongwith PW6 HC Yatender Malik and PW7 Ct. Moinuddin, had reached on the Club Drive Road, from the M.G. Road, when they had noticed one Innova car of white colour without a number plate in a farm house and on the back rear glass of the vehicle, 'Ten' was SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
4found written. Two persons were also found sitting on the front seats of the said car and they both were apprehended by the police party on suspicion and during enquiry, it was revealed that the above car was the same car which was robbed from the complainant/PW2. The name of the above two persons found in the said vehicle were revealed as accused Amit Lohia @ Sonu, a resident of village Ghitorni and Sunil @ Don, a resident of Aya Nagar, New Delhi.
5. The above two accused persons were arrested in this case vide arrest memos Ex. PW6/F and PW6/G, their personal search was conducted vide memos Ex. PW6/H and PW6/I and their disclosure statements Ex. PW6/J and PW6/K respectively were also recorded. During the personal search of the accused Amit Lohia @ Sonu, one katta and two live cartridges were also recovered and the IO/PW10 had prepared the sketch Ex. PW6/A thereof and one daav (an agricultural instrument) was also recovered from the possession of the other accused Sunil @ Don and a sketch Ex. PW6/C thereof was also prepared. Two separate parcels of the above katta and cartridges as well as of the above daav were also prepared and the same were seized vide memos Ex. PW6/B and PW6/D respectively and the above Innova car, alongwith its key, was also seized vide a separate memo Ex. PW6/E and thereafter Sections 25 and 27 of the Arms Act and Section 411 IPC were also added in the case by the IO/PW10.
SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
56. It is further alleged that in pursuance of their above disclosure statements, both the accused persons had also led the police party and had pointed out the place of robbery vide memo Ex. PW6/L and in pursuance of their above statements, they had also led the police party to some jungle area by the side of the wall of SSB on 07.04.2011 and from there, they both had got recovered two broken number plates of the above Innova vehicle no. DL 1YA 9374 and the same were seized vide memo Ex. PW6/P. Further, on that day, the accused persons had also led the police party to the parking area of Ghitorni Metro Station and from where they had got recovered one Maruti car bearing registration number HR 26Z 5083, which according to them was being used in commission of the offences and for keeping the booty. The above Maruti car was seized vide memo Ex. PW6/N. One mobile phone of make Nokia 5130 was also recovered from the above car and seized vide another memo Ex. PW6/O and some documents of the above robbed Innova car were also recovered from the dash board of the above Maruti car and the same were taken into possession vide memo Ex. PW6/M, which documents are now Ex. PW10/D, PW10/E and PW10/F on record. The accused Amit Lohia @ Sonu had also disclosed that the above mobile phone was taken by him from a shop of village Ghitorni on the pretext of seeing it for the purposes of purchase, but he had neither paid its amount nor returned the same to the shopkeeper.
7. It is further alleged in the charge sheet that SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
6during the investigation, both the accused persons had refused to join the TIP proceedings, but thereafter, they were identified by the complainant/PW2. The above katta and cartridges recovered in this case were subsequently sent to FSL, Rohini for expert opinion and pending the receipt of the FSL report, after recording the statements of witnesses and completing some other formalities of investigation, a charge sheet for commission of the above said offences was ultimately filed in the court of concerned Ld MM.
8. The charge sheet was filed in the court of Ld MM concerned on 27.05.2011 and cognizance of the said offences was taken. After compliance of the provisions of Section 207 Cr.P.C., the matter was committed to the Sessions Court vide order dated 08.07.2011 of the Ld MM as the offence U/S 397 IPC was exclusively triable by a Court of Sessions.
9. A prime facie case for commission of the offences punishable U/S 392/34 IPC and in the alternative a prima facie case for commission of the offence punishable U/S 411/34 IPC was found to be made out against both the accused persons and a prima facie case for commission of the offences punishable U/S 397 IPC and 25 of the Arms Act was also found to be made out by this court against the accused Amit Lohia @ Sonu vide order dated 17.08.2011 and charges against them for the above said offences were also framed on the same day.
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710. The prosecution in support of its case has examined on record total 10 witnesses and their names and the purpose of examination is being stated herein below:-
11. PW1 Mrs Sunita is the wife of accused Sunil Kumar and she is the registered owner of the above Maruti car no. HR 26Z 5083 and it was released to her on superdari vide superdiginama Ex. PW1/A. Her testimony is not relevant to the charges framed against the accused in this case.
12. PW2 Sh Ravi Verma is the complainant of this case and he has deposed in detail regarding the above incident, almost on the above lines of the prosecution story, and his testimony will be discussed and appreciated in detail in the later part of this judgment.
13. PW3 W.SI Surekha is the Duty Officer of this case and she has only proved on record the FIR Ex. PW3/A and the endorsement Ex. PW3/B made by her on the original rukka and she is also formal witness.
14. PW4 W.Ct. Rukhsana was working in PCR Headquarters at the relevant time and she had filled up the PCR proforma pertaining to the above call of robbery made by the complainant/PW2 and has brought on record a computerized copy thereof as Ex. PW4/A and thus she is also a formal witness of record.
SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
815. PW5 Sh Surender Singh is the registered owner of the above Innova vehicle bearing registration no. DL 1YA 9374 and has taken the same on superdari vide superdiginama Ex. PW5/A, on the basis of the authority letter Ex. PW5/B given by the registered owner of the said vehicle Sh Satish Sherawat, and his testimony is also not relevant to the charges framed against the accused.
16. PW6 HC Yatender Malik was with the IO/PW10 SI Karamvir Singh in investigation of this case dated 06.04.2011, when the the IO/PW10 had visited the spot, alongwith the complainant/PW2, and the complainant had pointed out the place of occurrence and they both, alongwith Ct. Moinuddin, had also subsequently recovered the above Innova vehicle, weapons and had arrested the accused persons. He had also participated in the further investigation dated 07.04.2011 leading to the recovery of the above Maruti car and number plate etc. of the Innova vehicle, is a witness of the documents prepared during the investigation and has further identified the accused persons and the case property.
17. PW7 Ct. Moinuddin had taken a copy of the FIR and rukka from the PS to the spot and had handed over the same to the IO/PW10 and had further participated in the investigation dated 06.04.2011, as stated above. He has deposed regarding the preparation of the above documents in his presence by the IO/PW10, but he is not a signatory SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
9to the above documents, though he claims that the same were prepared in his presence. He has also identified the accused persons as well as the case property.
18. PW8 Sh Surender Kumar is the concerned Additional DCP at the relevant time and he has only granted the sanction U/S 39 of the Arms Act Ex. PW8/A for prosecution of the accused Amit Lohia @ Sonu under the Arms Act.
19. PW9 Sh Puneet Puri is the concerned ballistic expert of FSL who had examined the above katta and cartridges recovered from the accused Amit Lohia @ Sonu and had found the same to be arms and ammunition vide his report Ex. PW9/A.
20. PW10 SI Karamvir Singh is the IO and he has also deposed on the above lines of the prosecution story, regarding the investigation done by him, the arrest etc. of the accused persons, the recovery of the above vehicles and weapons etc and the documents prepared by him.
21. After the conclusion of the prosecution evidence, all the incriminating evidence brought on record was put to them in their separate statements recorded U/S 313 Cr.P.C. and the same was denied by them either to be incorrect or beyond their knowledge. They both have claimed the prosecution story and the evidence SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
10to be false while saying that they have been falsely implicated in this case after they both were picked up by the police from their respective houses and their signatures were forcibly taken by the police on some blank documents. They have also denied the recovery of the above weapons, vehicles or the number plate etc from their possession or at their instance and the accused Sunil @ Don has also claimed that his above Maruti car was also taken away by the police from his house. They both have further claimed that their photographs were taken in the PS and they were also shown to several persons in the PS and the accused Sunil @ Don has also stated that he had refused to join the TIP proceedings only because he was asked and threatened by the IO not to participate in the said proceedings. However, none of the accused had chosen to lead evidence in his defence.
22. I have heard the arguments advanced by Sh. Inder Kumar, Ld Additional PP for the State, Sh Amit Khatana, Ld counsel for the accused Amit Lohia @ Sonu and Sh L.K.Verma, Ld counsel for the accused Sunil @ Don and have also perused the evidence led and the other record of the case.
23. While appreciating the evidence led by the prosecution on record charge-wise, it is already stated above that a charge for commission of the offence punishable U/S 392/34 IPC pertaining to robbery of the SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
11above Innova vehicle of the complainant/PW2 was framed against both the accused persons and in the alternative, a charge for commission of the offence punishable U/S 411/34 IPC was also framed against them for recovery of the above robbed vehicle from their possession. Besides the above, a charge for commission of the offence punishable U/S 397 IPC was framed only against the accused Amit Lohia @ Sonu, which pertained to use of a country made pistol/desi katta in commission of the above offence of robbery.
24. The star witness of the prosecution story regarding the above charges is the complainant/PW2 Sh Ravi Verma himself as no eye witness of the above incident of robbery was available at the relevant time of the incident. He in his statement made in this court has sated that on 05.04.2011, he was working as a driver with M/s Ten Travels having their office at Mahipalpur, Delhi and on that day at about 10:00/10:15 PM, he was coming in an Innova car bearing registration number DL 1YA 9374 from Gurgaon and was going to Sangam Vihar. He has stated that when he had reached near the Arjangarh Metro Station, he had received one call on his mobile phone and had stopped his vehicle on the roadside for hearing of the above call. When after hearing the call, he had started his vehicle, one person had stopped him and asked to drop him on the way and though initially he had refused to give lift to that boy, but since that boy was also a driver by profession, he had allowed that boy SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
12to sit in the vehicle on the front seat by his side.
25. He has further stated in his above statement that on the way the above boy had started conversating with him and had asked from him about his place of residence etc and then that boy had asked him to stop the vehicle at the Sultanpur Metro Station. As soon as he had stopped the vehicle for dropping that boy, one other boy had come there from the driver side and had pushed him inside the vehicle and the above other boy himself had occupied the driving seat of the vehicle. At this point of time, the boy who had first taken the lift from him had threatened him to be killed in case he (complainant/PW2) raised any noise and then both the above boys had taken him in the Ghitorni farm house near the Metro terminal and he was thrown out of the vehicle and the boys had fled away, while taking his vehicle with them. The complainant/PW2 has also identified the accused Amit Lohia @ Sonu as the boy who had taken lift from him, but he has not identified the other accused Sunil @ Don while saying that he cannot identify the other person as he could not see that person properly.
26. He has further claimed in his examination in chief that subsequent to the above incident, he had called the PCR on 100 number and had also made a call in the office of his company regarding the above incident and many officials from the PCR as well as the local police station had reached there and made enquiries from SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
13him. He claims that he was given beatings by the police officials as well as by his owner Sh Satish Sehrawat, who had also arrived at the spot, while saying that the vehicle had been sold by him and he was taken to the PS Fatehpur Beri and was freed only at 5:00 AM with directions to come again at 10:00 AM. He also claims that the police officials had made enquiries from him and recorded his statement Ex. PW2/A and then he was also taken by the police officials to the place where his vehicle was robbed and he had pointed out that place to the police. He was again taken back to the PS and was allowed to leave only at around 10:30/11:00 PM and after the above, he was called in the PS only once when he was asked to sign some documents with regard to the filing of the challan. He has also stated that besides his above statement Ex. PW2/A, no other statement of him was recorded by the police and he has also identified the above Innova vehicle as Ex. P2.
27. At the request of Ld Additional PP, the complainant/PW2 was also permitted to be cross examined as it was stated that he was resiling from his previous statement on some material aspects with regard to the identity of one of the offenders and also about the use of the weapon and during his such cross examination conducted by Ld Additional PP, the complainant/PW2 has admitted it to be correct that the person who had taken lift from him had also put a katta on his temple (kanpatti) when that person had asked him to stop the SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
14vehicle. However, he has denied the suggestion given to him that the accused Sunil @ Don was the second person who had forcibly entered in his above vehicle when he had stopped the same and has further volunteered that there was no sufficient light at that place and there was some darkness and hence he could not properly see the face of the above second person. He has also stated it to be correct, when suggested, that since he was very much afraid at that time, he could not see properly the above person, but he has denied a suggestion that he was not intentionally identifying the accused Sunil @ Don as a robber as he had been won over by him. He has further stated it to be correct that the site plan Mark A (subsequently exhibited as Ex. PW10/A during the statement of the IO) was prepared by the police at his instance.
28. During his cross examination conducted on behalf of accused Sunil @ Don, he has also stated that the above call to the police at 100 number was made by him from his mobile phone, the PCR officials who had reached there had met him at a distance of about 300/350 yards from the spot where he was thrown out of the vehicle, the distance between the place where the second person had entered in the vehicle and the above place where he was thrown out of the vehicle was about 1-1½ km, some senior officers from the PS and his owner had also reached there at the spot and he had accompanied the police officials to the PS and he remained in the PS SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
15throughout the night of the incident. He has also admitted it to be correct that he had told the PCR officials that three 'badmash' had come on a motorcycle and one of them had shown a gun and had taken away his above Innova vehicle and he has further volunteered that since he was very much afraid at that time, he could not tell the truth to the police officials. He has also stated further that when in the morning he was taken away from the PS by his owner, he was taken to their office and was confined in the office and then again brought to the PS at around 10:30/11:00 AM on that day, i.e. the next following day of the incident, and they both had remained in the PS till about 9:30/10:00 PM. He has further stated that when they both had reached the PS on the next day at around 10:30/11:00 AM, they had come to know that the police officials had gone to recover their vehicle and the vehicle was brought after recovery in the PS, after about 1/1½ hour of their reaching in the PS.
29. He was also cross examined at length on behalf of accused Amit Lohia @ Sonu and he has stated further in his such cross examination that his statement was recorded by the police in the PS itself during the night of the incident and he had told the police in his above statement that he had received a call on his mobile phone, when he had reached at the Arjangarh Metro Station, and he had stopped his vehicle on the roadside for hearing the above call, he had also told the police SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
16in his statement that he had initially refused to give lift to the above boy and had given the same only when the above boy had told him that he was a driver by profession and he had also told the police in his statement that on the way, the said boy who had taken lift from him had started talking with him and had also asked his place of residence etc and he was duly confronted on these aspects by Ld defence counsel representing the accused Amit Lohia @ Sonu as the same were not found to be recorded in his above statement Ex. PW2/A, which is the basis of this FIR.
30. He has also stated in his cross examination conducted on behalf of the above accused that he had also told the physical description of the above two boys/persons to the police in his statement and the same was recorded by the police at the instance of his owner, but he has volunteered further that the statement was made by him only, though it was got recorded by his owner. He has stated again on this aspect that in the night he had given his statement to the police, but in the morning his owner had got the above statement changed and has further volunteered that he had given his statement in this case on being asked by his manager to give such statement otherwise the blame of robbing of the vehicle would be shifted on him. He has also stated that his statement Ex. PW2/A was recorded on the next day of the night of the incident and the same was not given by him in the PS in the night of the incident and SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
17it is not his statement which was made by him or recorded by the police in the night of the incident. He has also denied a suggestion given to him by Ld defence counsel that his above statement Ex. PW2/A was made or signed by him only on being asked to do so by his owner or under the influence of the police. He has further stated that he had not told the truth to the PCR officials about the incident when he had stated it to them that three robbers had come on a motorcycle and had taken away his vehicle on a gun point.
31. Regarding the identity of the accused Amit Lohia @ Sonu also, who was identified by him during his examination in chief itself as one of the offenders, he was questioned at length by Ld defence counsel and he has stated that the travel time between the place where the above first person had taken lift in his vehicle and the place where he was thrown out is hardly 1-2 minutes on a vehicle and it is correct that keeping in view the above short travel time for which the above first person had remained seated with him in the vehicle, he could not have been in a position to properly identify him or see his face. He has also volunteered that he had identified him subsequently in the PS when some persons were produced by the police before him for identification and the accused Amit Lohia @ Sonu was identified by him as his physical description was matching with the above person, who had taken lift in his vehicle. He has also stated it to be correct that SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
18he had identified the accused Amit Lohia @ Sonu as he was asked to do so by the police as well as by his owner. He has further stated it to be correct, on being suggested so by Ld defence counsel, that even on the previous date of his examination, the police officials and his owner had asked him outside the court to identify the accused Amit Lohia @ Sonu in his statement made in the court.
32. He has further stated on record during his above cross examination that his above vehicle was recovered by the police as one driver of Orange Cab Company, which is situated nearby their office, had telephoned their manager that their vehicle was standing somewhere in Ghitorni and he had seen the stickers of their company on the vehicle, though it was not having a number plate. He has also stated it to be correct that thereafter the owner of their company had informed the police that their vehicle was standing at the above place and the same was recovered by the police and brought to the PS.
33. The complainant/PW2 was also permitted to be re-examined by Ld Additional PP on the above aspect of identity of the accused Amit Lohia @ Sonu and during his such examination he has denied a suggestion given to him by the Ld Additional PP that previously he had correctly identified the accused Amit Lohia @ Sonu on his own. Though he has admitted during his such re-examination SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
19that earlier the accused Amit Lohia @ Sonu had come to his house, but he has denied that the accused had come to threaten him and has volunteered that the above accused had come only to have some talks and to make a request for not to identify him in the court during his statement. He has also denied the suggestion of Ld Additional PP that he was not identifying the accused Amit Lohia @ Sonu in his cross examination due to some compromise arrived at between them.
34. It has been argued by Ld counsel for the above accused Amit Lohia @ Sonu that the evidence and story of the prosecution, as well as the statement of the complainant/PW2, are full of material contradictions and the complainant/PW2 also stands confronted on some material aspects. It has also been submitted that the testimony of the complainant/PW2 clearly shows that his statement Ex. PW2/A was recorded after a delay of about 12 hours from the alleged incident of robbery and the same was also made at the instance of the owner and manager of their company and further it is not the statement which was made by him during the night of the incident, as the same was got changed by his owner. It has also been argued that the complainant/PW2 has made contrary depositions on record on the point of identity of the above accused Amit Lohia @ Sonu as though in his examination in chief, he has identified the above accused to be the same boy who had taken a lift in his vehicle and had subsequently robbed the same, but during SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
20his cross examination, he has clearly stated on record that due to the short travel distance and lack of sufficient time, it was not possible for him to identify the above accused and on the previous date, he had only identified the above accused as he was asked to do so by his owner and police officials, who were present outside the court. It has also been pointed out that the complainant/PW2 has admitted on record that he had told the PCR officials regarding the participation of three 'badmash' in the alleged robbery and this fact is also reflected in the PCR form Ex. PW4/A, and hence it is argued that in view of all the above contradictions, confrontations and discrepancies in the case of the prosecution, it will not be safe to rely upon the testimony of the complainant/PW2 for conviction of the above accused. Ld counsel for accused Sunil @ Don has also supported the above arguments of Ld counsel for accused Amit Lohia @ Sonu from the record and has submitted that since the accused Sunil @ Don was not identified by the complainant/PW2 in the court, he cannot be convicted simply on the basis of his refusal to participate in the TIP proceedings during the investigation.
35. When the testimony of the complainant/PW2 is appreciated in entirety, it is observed that he had given a truthful account of the above incident of robbery, which had taken place with him. Though, he has been confronted in the court on certain aspects as to SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
21the stopping of his car on a roadside for hearing of a call received on his mobile phone, giving of the lift to the first boy by him only when he was told by that boy that the above boy was also a driver by profession and further regarding some conversation between him and the said boy on the way, but it is observed that the above confrontations have not come on any material aspect and as far as the manner in which the above incident of robbery had taken place and its place or time etc., there are not found to be any confrontations between his previous statement Ex. PW2/A as well as his statement as made in this court.
36. In his previous statement Ex. PW2/A as well as in his statement made in this court, he has clearly deposed that on the above day at around 10:00/10:15 PM, he was coming to Sangam Vihar from Gurgaon in his above Innova Car when he was asked for lift by one boy and he had given lift to him. He has also specifically deposed in the court, and also stated in his above previous statement, that when he had stopped his vehicle for dropping the boy taking lift, one other boy had suddenly surfaced there and had pushed him inside the vehicle, after opening the door of the vehicle, and thereafter the above second boy had driven the vehicle for some distance and both the above boys had pushed him out of the vehicle and had taken away the said vehicle. He has also stated in both of his above statements that he was also extended the threats of death by the boy taking the SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
22lift, though in his examination in chief recorded in the court, he was silent regarding the pointing out of a katta by that boy at him, as was stated in his previous statement Ex. PW2/A, and he has also stated about the use of katta by that boy only when he was cross examined by Ld Additional PP on the above aspect.
37. Though, it is observed from the record that there is a delay of about 12 hours in recording of his statement Ex. PW2/A as the incident had taken place at around 10:20 PM on 05.04.2011 and the rukka was endorsed on the above statement by the IO/PW10 at 10:30 AM on 06.04.2011, but there was no delay on the part of the complainant/PW2 in reporting the matter to the police as the call regarding the incident was made by him almost immediately after the incident. As per the PCR form Ex. PW4/A, the call was recorded in the PCR office at around 10:37 PM and the complainant/PW2 has also deposed in this court that the PCR officials as well as the local police had arrived at the spot. This fact is further found to be corroborated from the endorsement recorded on the above call on the basis of the information furnished by the PCR officials who had reached at the spot, as recorded in the above document Ex. PW4/A. The complainant/PW2 has also stated specifically that from the spot, he was taken to the PS by the local police and hence, there was no delay at all on his part in reporting the matter to the police and the delay, if any, in recording of his statement was caused by the SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
23local police and the complainant/PW2 cannot be faulted for the same.
38. Though, as per the reporting made in the above PCR form Ex. PW4/A, the complainant had told the PCR officials who had reached at the spot that three 'badmash' had come on an unknown motorcycle and had snatched away his above Innova car and further though even during his statement made in this court, he has stated to have earlier stated the number of the offenders/robbers to be three to the PCR officials, but the above contradictions cannot be given much weight as the complainant/PW2 during his statement made in this court has clearly stated that he was much afraid at that time and he could not tell the truth to the police officials. During his examination in this court, he has clearly stated that his statement Ex. PW2/A recorded by the police, which is the basis of the FIR, is his true statement and the incident mentioned in the above statement had actually happened with him and the above statement is correct as per the incident, except that something further stated by him to the police was not recorded in his above statement.
39. Though, Ld defence counsels have also argued that the above statement Ex. PW2/A was made by the complainant/PW2 under the influence of police officials as well as his owner, but the above depositions made by the complainant/PW2 in this court clearly bely any such SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
24pressure or force upon him for making the said statement and rather the same appears to be his true statement as has also been specially claimed by him on record. Though, he has stated that the owner of the vehicle was there at the time of making of the above statement and his manager had also told him to give a statement on the above lines to avoiding the shifting of blame upon him, but it cannot be ignored, as also discussed above, that he had stated again and again during his cross examination that his above statement Ex. PW2/A was a correct statement as per the incident which had actually happened with him and the same was not made under any sort of pressure or influence etc. and is thus found to be his voluntary statement as per the incident which had actually taken place with him.
40. Though, a contradiction has come of record during his statement on the point of identity of the accused Amit Lohia @ Sonu as though he has identified him as one of the robbers, who had initially taken lift in his vehicle, during his examination in chief, but during his cross examination, he has stated that the same was done by him at the instance of the police and his owner who were present on that day outside the court, but, however, the reasons for his making such contrary depositions in the court are only that he was pressurized or influenced by and on behalf of the above accused to make such depositions. It is a matter of record that when he was examined in chief for the first SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
25time in this court on 03.10.2011, his examination had to be deferred as the above Innova vehicle was not produced in the court on that day for identification by this witness and at that time, the complainant/PW2 had brought to the notice of this court that he was having some threats from the above accused Amit Lohia @ Sonu identified by him in the court on that day and the above accused and some persons had already visited his residence for influencing him. The observations, which were taken on record of the court on that day are being reproduced herein below:-
"At this stage, the witness has also stated that he is having some threats from the accused identified by him today in this court and the above accused and some other persons had also visited his house some days before the previous date fixed in this court, i.e. 01.09.2011, and had asked him not to identify him. The submissions of the witness have been taken on record and necessary directions are being given to the concerned DCP to ensure the protection of the witness".
41. Though certain directions were given by this court to the DCP concerned for ensuring the protection of the witness, but nothing material in this regard could be done before the next date as the order/ directions of this court sent to the DCP concerned were forwarded to the concerned DCP of the place of residence of the complainant/PW2 only at a belated stage when on the next adjourned date, i.e. on 21.10.2011, the compliance report was called from the concerned DCP.
SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
26Some enquiry in this regard was also subsequently directed by the DCP, South-East regarding the lapses on the part of the concerned police officials and the outcome of enquiry is also a matter of record. However, the fact which remains is that when the complainant/PW2 had appeared for his further examination in chief in this court on the next date, i.e. on 21.10.2011, and was further examined in chief and also cross examined, he had made the above depositions pertaining to the identity of the above accused Amit Lohia @ Sonu and also regarding the short travel time spent with the above accused. In the considered opinion of this court, these depositions were made by him only under the influence and having been won over by the above accused, who either directly or indirectly was able to prevail upon him and to make him to depose favourably in the court on the point of his identity.
42. It is well settled that the courts should not feel helpless in such a case where it appears to the court that such illegal and unethical practices have been adopted by the defence to win over a material witness of the case and it becomes the duty of the court to appreciate the statement of such a hostile witness with a caution so as to find out the truth in his statement. It is also well settled that simply because a witness has turned hostile and has not supported the case of the prosecution on certain aspects, his entire testimony made in the court cannot be discarded and he SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
27can still be believed while leaving apart his part depositions which appear to the court to have been made under the influence of the accused.
43. In this regard, reference can be made to a judgement of the Hon'ble Calcutta High Court in case Gobinda Chandra Singha Roy Vs. Haru Chandra Singha Roy, 1968 Crl. L.J. 1352 (Vol. 74, C.N.383) Calcutta High Court, wherein it was held that:
"A hostile prosecution witness who is
permitted to be cross-examined by the
prosecution does not necessarily loose his or her credibility because of that fact. The entire evidence of the hostile witness has to be considered on its merits and the Court would be perfectly entitled to accept as much of that evidence as it might find acceptable."
44. Reference can also be made to the judgment of the Hon'ble Supreme Court in case Sat Paul Vs. Delhi Administration AIR 1976 Supreme Court 294(1), wherein also it was held by their Lordships that:
"Even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.28
Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto."
45. Reference can also be made to another judgment of the Hon'ble Supreme Court in the celebrated case of Khujji @ Surendra Tiwari Vs. State of MP AIR 1991 SC 1853 wherein, after discussing the relevant law and existing decisions on the subject, their Lordships had observed that:
"The evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof."
46. Further, one other contention of Ld counsel for the above accused Amit Lohia @ Sonu is that the complainant/PW2 in his statement made in the court has also stated that he had already seen the accused in the PS when the accused was brought there by the police, SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
29after having been arrested in this case, and he had also identified the accused there and hence no reliance can be placed upon by this court on the refusal of the above accused to join his TIP proceedings got conducted by the IO/PW10 during the investigation of the case. In this regard, as discussed above, both the above accused persons had refused to join the TIP proceedings during the investigation and their TIP proceedings are Ex. AD on record, which have been admitted during the trial on behalf of both the accused persons. The reasons for refusal of the accused persons to join the TIP proceedings, as given in the said proceedings, is that they did not want to participate in the same as their photographs were taken by the complainant/PW2. However, even without placing any reliance upon the above TIP proceedings or the refusal of the accused to join the same, the evidence led on record is sufficient to establish the identity and participation of the accused Amit Lohia @ Sonu in the commission of the above robbery, which was committed by him alongwith his one other associate, as even if the above refusal of the accused to join the TIP proceedings is kept aside, his identification by the complainant/PW2 in the PS and also his subsequent identification in the court is sufficient to fix his identity in this case. Hence, there is sufficient evidence on record to substantiate the charge for the offence U/S 392/34 IPC against the accused Amit Lohia @ Sonu. However, as far as the other accused Sunil @ Don is concerned, his participation in the above SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
30robbery is not proved as the complainant/PW2 has not identified him in his statement made in this court as the second robber and he cannot be held to be so simply on the basis of his refusal to join the TIP proceedings.
47. Now coming to the charge for commission of the offence punishable U/S 397 IPC framed against the accused Amit Lohia @ Sonu, it is observed that the complainant/PW2 in his examination in chief has not made any depositions that either of the two robbers or the accused Amit Lohia @ Sonu had pointed out a katta on his temple (kanpatti), as was recorded in his previous statement Ex. PW2/A, and it is only in his cross examination conducted by Ld Additional PP that he has stated on record that the above accused had shown a katta to him, while extending the above threats of life. Hence, his above depositions made by him during his such cross examination are to be viewed with suspicion and even though the use of a katta is found recorded in the above PCR form Ex PW4/A and the above statement Ex. PW2/A of the complainant/PW2, the accused Amit Lohia @ Sonu is being given benefit of doubt in this regard, because of the absence of the depositions on this aspect in his examination in chief.
48. As far as the alternative charge for commission of the offence punishable U/S 411/34 IPC framed against both the accused persons is concerned, as is also stated above, the above charge was framed against the accused SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
31persons in alternative and since the substantial charge against the accused Amit Lohia @ Sonu for commission of the offence punishable U/S 392/34 IPC is being held as proved, this alternative charge U/S 411/34 IPC framed against him becomes irrelevant. However, the same is certainly relevant qua the other accused Sunil @ Don, as he cannot be held guilty for the above main charge for the offence U/S 392/34 IPC. Similarly, the evidence is also to be appreciated regarding the charge for the offence U/S 25 of the Arms Act as framed against the accused Amit Lohia @ Sonu.
49. When the evidence led on record is appreciated on this aspect, it is observed that the testimony of PW6 HC Yatender Malik, PW7 Ct. Moinuddin and the IO/PW10 SI Karamvir Singh are relevant on the above aspect as they all are the witnesses of the alleged recovery of the above stolen/robbed car make Innova from the possession of the accused persons. They all have almost made similar depositions that after the complainant/PW2 was freed from the investigation at the spot, they all had gone in search of the offenders as well as the robbed vehicle and had reached one farm house on Club Road, Ghitorni where they had seen the above vehicle parked and though it was not having a number plate, but they had identified it to be the same vehicle as the word 'Ten' was written on the rear wind screen of the said vehicle. They have also deposed that both the accused persons were sitting in the said vehicle at that time SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
32and they both were apprehended from the said vehicle itself. It is also stated by PW7 that the accused Sunil @ Don was sitting on the driving seat of the said vehicle at that time and the accused Amit Lohia @ Sonu was sitting on the adjacent seat of the driving seat of the said vehicle. It is also deposed by the above witnesses that after their apprehension, both the accused persons had disclosed their above names during enquiry and then the search of the accused Amit Lohia @ Sonu was conducted by the IO/PW10 and one country made pistol and two live cartridges were recovered from his possession and one 'daav' was also recovered in the search of the other accused Sunil @ Don. They all have also deposed regarding the preparation of the above documents pertaining to the above weapons, i.e. the sketches, seizure memo etc and also the arrest documents of the said accused.
50. However, when their testimonies are appreciated in entirety, and also in reference to some depositions made by the complainant/PW2 on record, it is observed that the same do not inspire much confidence and the apprehension of the accused persons from the above spot or the recovery of the above vehicle and weapons from their possession is highly doubtful. Firstly, the above vehicle was robbed by the accused persons at around 10:20 PM on 05.04.2011 and the same was allegedly recovered by the police party at around 6:30 PM on 06.04.2011, i.e. after about 20 hours from the time it SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
33was robbed from the complainant/PW2. It is highly doubtful that after the lapse of such a long time, the accused persons will remain sitting in the said vehicle itself or will park it at a place just adjacent to the main road, so as to be seen and intercepted by the police party and they will not make any attempt to take the vehicle beyond Delhi or to sell or disposed off the same.
51. There is nothing on record to suggest that the above farm house from where the above vehicle was recovered was a closed place or having a big wall, so as to make the accused persons to park the said vehicle there in some hiding. It is also on record that the above place where the above vehicle was found parked was hardly at any distance as all the above police officials have deposed that they all were on foot at that time, when they had gone in search of the offenders and the robbed vehicle, and the vehicle was found parked in the first farm house on the left side after they had entered the Club Road from the side of Ghitorni, as deposed by PW7. Moreover, the very fact that the police officers had left in search of the vehicle and offenders on foot also raises doubts regarding their above claim of recovery of the said vehicle from the accused persons as the same shows as if the police officials were aware that the accused and the vehicle were present at a short distance only to be caught or intercepted by the police.
SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
3452. Again, there are also found to be some contradictions in their testimonies on this aspect as according to PW6 HC Yatender Malik the accused Amit Lohia @ Sonu was apprehended by the IO/PW10 and he had apprehended the accused Sunil @ Don, whereas PW7 has stated that the accused Sunil @ Don was apprehended by him and the other accused Amit Lohia @ Sonu was apprehended by PW6. Further, according to PW6, the country made pistol was found from the right dub of the pant and two live cartridges were found in the left pocket of the wearing pant of accused Amit Lohia @ Sonu, whereas according to the IO/PW10, one katta, alongwith two live cartridges were recovered from the right dub of his pant and two live cartridges were found in the left side pocket of his pant and the depositions of the IO/PW10 suggest as if total four cartridges were recovered from the above accused, though only two cartridges were recovered. Again, according to PW6, the above 'daav' was recovered from the left back side of his wearing pant, which was concealed by the accused inside his wearing shirt, but according to PW7 and the IO/PW10, the same was recovered from the left dub of the pant of the above accused. On perusal of the sketch of the above 'daav' prepared by the IO/PW10, it is found that the length of its dasta/handle was 14.5 Cms and the length of its blade was 19.5 Cms and thus the total length of the 'daav' was 34 Cms, i.e. more than one feet, and it is highly improbable that the accused could have concealed such a long weapon or instrument, which SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
35is though an agricultural instrument, but is having a sharp edge, in the right dub of his pant or even on the back side of the pant and even if it is presumed that it can be concealed or kept inside the pant or shirt, but it was not possible to sit on the seat of a vehicle while keeping or concealing such an instrument in a pocket/dub or even on the back side of the pant.
53. Moreover, the above claim of the police witnesses is also made doubtful by the depositions made by the complainant/PW2 in this court when he has stated on record that the above vehicle was recovered as some official of one Orange Cab Company had seen the said vehicle parked somewhere and had told this fact to the officials of their company, who in-turn had informed the police. The above official of Orange Cab Company had identified the vehicle from a sticker of Ten Travel affixed on the said vehicle. The complainant/PW2 has also stated that when he and his owner had again reached the PS next day, the police officials had already gone to recover their vehicle and had also brought it in the PS after about 1/1½ hour. The above depositions clearly falsify the claim of the police officials that the same was recovered by them and the accused were apprehended by them inside the vehicle, when they had visited the said farm house in search of the vehicle and the offenders, after visiting the spot alongwith the complainant.
SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
3654. Further, the above police witnesses have also deposed that after the interception of the said vehicle, they had also identified the same from its chassis number and engine number and though the IO/PW10 has stated on record that he had obtained the above numbers from the owner of the vehicle telephonically, but strangely enough, PW6 and PW7 are both silent in this regard as they both have not even whispered anything in their statements on this aspect and the above depositions of the IO/PW10 made on this aspect only appear to be improvements made by him to cover up the lacunaes in their case. Certain other discrepancies and contradictions are also observed in the testimonies of the police officials as to how the other Maruti car was recovered and seized in this case and whether the above mobile phone, though not relevant for this case, was recovered from the said Maruti car or Innova car. It is also not believable that though the accused themselves were present in the robbed Innova car, but the documents of the said vehicle were kept or left by them in the other Maruti car.
55. Therefore, keeping in view the above discussion, it is held that the evidence led by the prosecution on record is though sufficient to prove the charge for commission of the offence punishable U/S 392/34 IPC framed against the accused Amit Lohia @ Sonu beyond reasonable doubts, but the same is not sufficient to prove the remaining charges framed against the SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
37accused Amit Lohia @ Sonu or the charge for the offence punishable U/S 411/34 IPC framed against the accused Sunil @ Don. With the result, the accused Amit Lohia @ Sonu is being held guilty and convicted for the above said offence punishable U/S 392/34 IPC only and he is being acquitted for the remaining offences and the accused Sunil @ Don is also being acquitted in this case.
56. Let the accused Amit Lohia @ Sonu be now heard on the point of sentence.
Announced in the open
court on 17.01.2014 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South District
Saket Court Complex
New Delhi
SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
38
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT SAKET COURT COMPLEX, NEW DELHI State Versus Amit Lohia @ Sonu S/o Sh Shyami R/o 150, Near Water Tank Villate Ghitorni New Delhi.
SC No. 02/11 FIR No. 70/11U/S: 365/392/397/411/34 IPC and 25 & 27 Arms Act PS: Fatehpur Beri Computer ID No.: 02406R0188342011 ORDER ON SENTENCE Present: Sh Inder Kumar Additional PP for the State.
Convict on bail with Sh Amit Khatana Advocate.
After having convicted the accused Amit Lohia @ Sonu for the offence punishable U/S 392/34 IPC vide my judgment dated 17.01.2014, arguments have been heard today as advanced by Sh Inder Kumar, Ld Additional PP for the State and Sh Amit Khatana, Ld counsel for the convict as well as the convict in person, on the point of sentence to be awarded to the convict.
2. The convict submits that he is aged about 26 years only and is having the liability to maintain his wife and three minor children, i.e. two daughters aged around 4 and 2 years and one son aged around 20 days only. It is hence requested that lenient view be taken SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
39in the matter of awarding sentence to the convict and his incarnation of any long term of imprisonment will not only ruin his entire life but will also make his wife and children destitute. It is also submitted that the convict has now reformed himself and is conducting his own business of security services in the name of Ishika Security Solutions (P) Ltd, 14/7, M Block, DLF Phase II, Gurgaon.
3. Keeping in view the totality of the facts and circumstances, and the submissions for leniency as made on behalf of the convict in view of his young age and family liabilities, the convict is being sentenced to rigorous imprisonment for a period of two years only and a fine of Rs 10,000/- and in case of non payment of fine, he shall further undergo simple imprisonment for a period of three months. He is being given the benefit of Section 428 Cr.P.C. for setting off the period of imprisonment already undergone by him in this case. Fine has been deposited by him in the court today.
4. The case property, i.e. the arms and ammunition as well as the other weapon seized in this case, be confiscated and disposed of as per law, after the expiry of the period of limitation for filing of the appeal and subject to the outcome of any appeal to be filed against this judgment and order on sentence.
5. A copy of the judgment and the order on SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.
40sentence be supplied to him free of cost.
Announced in the open
court on 23.01.2014 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South District
Saket Court Complex
New Delhi
SC No. 02/11 State Vs. Amit Lohia @ Sonu & Anr.