Delhi District Court
Sessions Case No. 33/10 (State vs . Anil @ Kallu Etc) Page No. 1 Of 29 on 29 October, 2018
IN THE COURT OF SH. M.R. SETHI
ADDL. SESSIONS JUDGE - 03 : NORTH WEST:
ROHINI COURTS : NEW DELHI
In the matter of:
Sessions Case No. 33/10
Case ID No. : 02404R0245812010
FIR NO. : 76/10
Police Station: Swaroop Nagar
Under Section: 356/379/392/397/411/34 IPC
STATE
V/S
1.Mukesh S/o Sh. Ran Singh R/o H. NO. B26, Gali no. 1, Raja Vihar, Badli, Delhi.
2. Neeraj Kumar S/o Sh. Kamal Singh R/o 752, MCD Colony, Samai Pur Badli, Delhi.
3. Sunny S/o Sh. Sohan Lal R/o H. NO. C10/115, Sultan Puri, Delhi.
4. Sachin Sharma S/o Sh. Chandra Prakash, R/o A355, Raja Vihar, Badli, Delhi.
Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 1 of 29
5. Rakesh Sharma S/o E552/512, Gali no. 8, Jeevan Park, Siraspur, Delhi. [.... Accused persons] Date of Institution of the case in Sessions Court : 27.09.2010 Date of conclusion of arguments : 29.10.2018 Date of Judgment : 29.10.2018 JUDGMENT
1. Succinctly state d, allegations against the accused persons were to the effect that on the intervening night of 19 & 20.06.2010 at about 2.30 am at service lane near ganda nala Mukarba Chowk, (GT Karnal Road), they all along with one Anil (since PO) had committed dacoity and had looted the complainant Bunty of his purse containing some money and documents and also music system. On basis of aforesaid allegations, charges were framed against the accused persons for having committed offences punishable u/s 395/411 IPC by my ld. Predecessor on 05.09.11. As accused Sachin Sharma absconded and was subsequently declared PO on 08.04.11, charge was also framed against him for having committed an offence punishable u/s 174A IPC. Similar charge was also framed against accused Rakesh Sharma who had been declared PO on 15.11.2010. All the accused persons pleaded not guilty and claimed trial.
Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 2 of 29
2. During course of trial prosecution examined PW1 Bunty who claimed that on the day of incident, he was driving delivery van no. DL1LL9143 and was going from Cannaught Place towards Swaroop Nagar. He further claimed that at about 2.30 am, he took a Uturn near Gurudwara and proceeded to service lane for going to Libas Pur. He claimed having stopped his vehicle in the service lane for urinating. Witness claimed that a Maruti Car of cherry colour came from side of GT Karnal Road and five boys came out of the car, while 5th kept sitting in the car. He claimed that those boys snatched his purse containing Rs. 400 and also removed USB music system from the van and fled away in their car. Witness claimed that he noticed a police gypsy and informed the gypsy officials who chased the maruti car. Witness also claimed having chased them in his delivery van. He further claimed that the car was intercepted at Karnal bypass on road going towards ISBT, but occupants of the car fled away. Music system and empty purse were claimed to be found lying in the maruti car. As per the witness, a mobile phone of occupants was lying in dash board of the car. He claimed that his statement Ex.PW1/A was recorded by police. He identified his signatures at point A on the same. He specifically claimed that he could not identify the assailants who had robbed him. Witness also identified the music system Ex.P1, purse Ex.P2, documents found in the purse as Ex.P3 and the mobile phone Ex.P4.
After seeking permission from the court, witness was Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 3 of 29 crossexamined by ld. PP for State and during course of such cross examination, he admitted that the incident took place during intervening night of 19 & 20.06.2010. He further admitted that colour of maruti car was slati. He could not say if the exact amount lying in the purse was Rs. 410. He admitted that the purse and music system were seized by police vide memo Ex.PW1/B and C respectively. He identified his signature on the same. He claimed that he could not say if police had also seized bunch of keys. He was duly confronted with statement mark PX where it was so recorded at point A to A. Mobile phone was claimed to have been seized vide memo Ex.PW1/D. He admitted that at the time of incident, one of the assailants had slapped him and when he cried another assailant pressed his mouth with hand. He denied the suggestion that one of the assailant was having a katta. He was duly confronted with statement mark PX where it was so recorded at point B to B. He volunteered that the assailant was having a knife. He admitted that while leaving, the assailants had threatened that in case he narrated the incident to anyone, he would loose his life. He denied the suggestion that on 20.07.2010 he had come to Rohini Court for some personal work or that at about 2.15 pm police officials had produced four accused in room no. 103 or that one of the associates of those persons came and talked to them or that he himself identified them as being the culprits of his incident. He was duly confronted with statement mark PY where it was so recorded at point A to A. He further Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 4 of 29 denied the suggestion that on asking he came to know their names as Sunny, Neeraj, Anil, Mukesh and Sachin. He was duly confronted with statement mark PY where it was so recorded at point B to B. He further denied the suggestion that family members of Anil, Mukesh and Sachin came to his house and had threatened that if he identified them in jail, it would not be good for him or that due to this fear, he did not identify Mukesh and Anil in Jail on 03.07.2010 and Sachin on 07.07.2010. He was duly confronted with statement mark PY where it was so recorded at point C to C. He denied the suggestion that accused Anil, Mukesh, Neeraj and Sunny present in court were the same boys who were involved in the incident. Witness volunteered that the assailants were having muffled face at the time of incident. While admitting that police had fired in air to stop the Maruti car, witness identified his signature on seizure memo Ex.PW1/E, but claimed that he could not say if it was with regard to seizure of the empty round. He claimed that he could not identify the empty round even if shown to him and denied the suggestion that he was deliberately not identifying the accused out of fear.
During course of crossexamination, witness admitted that he had been shown one stereo and not the music system. He claimed that he did not hand over bill of the music system to police. He could not tell name of the police official who fired in air. He denied the suggestion that assailants were not armed with knife. He claimed that he was not medically examined by police from any Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 5 of 29 hospital. He further admitted that police had obtained his signatures on blank papers as he was illiterate. He denied the suggestion that he was not robbed of his purse or music system. Witness was again summoned after arrest of accused Sachin and Rakesh wherein he denied the suggestion that accused Sachin or Rakesh had robbed him on the day of incident. He further denied having identified Sachin in Rohini Court along with other accused. He denied the suggestion that he was deliberately not identifying them out of fear.
3. PW2 Amit Kumar claimed that accused Mukesh was working as a servant in his factory during January, February 2010. He claimed that he had to pay Rs. 8000 to Mukesh towards arrears of salary but as he could not pay the same, Mukesh took his mobile phone which ws handed over to Mukesh after taking out the sim. Witness claimed that as he had purchased the phone from Grey market Karol Bagh. He did not have any cash memo for the same. He further claimed that on 20.06.10 police officials came to his factory and had shown him the mobile phone. Witness claimed having identifed the same to be his. He also identified the mobile phone already Ex.P4.
During course of crossexamination, witness claimed that 78 persons were working in his factory when Mukesh was employed with him. He claimed that he was not maintaining any attendance sheet of his workers. While admitting that his factory Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 6 of 29 was registered Trade mark factory having TIN number, witness claimed that he was not aware if details of workers was to be maintained by such factories. He claimed that he did not issue any receipt to Mukesh while hading over mobile to him. It was claimed to have been handed over in presence of worker Manoj. He denied the suggestion that police had obtained the mobile phone from him after the day of incident. He denied the suggestion that he was deposing at instance of police.
4. PW3 Manoj Kumar claimed that he was working as supervisor in B3 Phase 1, Industrial Area. He claimed that on 20.06.2010 at about 1.30 pm while he was present in the factory, police officials made a telephone call to him and thereafter met him at gate no. 3 of the factory. He claimed that the police officials showed him a mobile phone which was in the name of his employer Amit Kumar. Witness claimed that owner of the factory had given the mobile phone to foreman Mukesh in lieu of payment of Rs. 8000 and thereafter it was being used by Mukesh. He also identified the mobile phone already Ex.P4.
During course of crossexamination, he claimed that there were 1415 employees at his place of work and that no attendance register was being maintained. He admitted that they did not sign any voucher or receipt in acknowledgment of receipt of salary. He admitted that owner of the factory had not given anything to any other employee in lieu of salary. He claimed that no other person Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 7 of 29 was present when mobile was given to accused Mukesh by the owner. No receipt was claimed to have been obtained from Mukesh. He denied the suggestion that police had obtained the mobile phone from them to solve the case or that he had identified it having seen it with the factory owner. He claimed that owner had brought the mobile phone in a packed box and had used it for 67 months. He denied the suggestion that the mobile phone had not been handed over to accused in his presence or that he was deposing falsely at instance of police.
5. PW4 Ct. Mahavir deposed about arrest of accused Mukesh, Sachin, Neeraj, Sunny & Anil and identified his signatures on the arrest documents Ex.PW4/A to R. He also identified the car from photographs of the car Ex.P5/A1 to A4 and the motorcycle through photographs Ex.P4/X1 to X3. During course of crossexamination by ld. Counsel for accused, witness claimed that he did not remember the DD number vide which police party left the police station on 21.06.10. He claimed that all of them left in maruti gypsy and had left the PS at about 2 pm. Public persons were claimed to have been called upon to join investigation, but they refused and went away. He claimed that the secret informer met the IO at Raja Vihar. He further claimed that after arrest all the accused were taken to spot in Maruti gypsy but he did not remember the time when they reached the spot for preparation of pointing out memo. He denied the Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 8 of 29 suggestion that he had not joined the proceedings or that he was deposing falsely.
6. PW5 Pramod Kumar claimed that he was owner of car DL1C3624 having purchased the same from one Satish in 2003. he claimed that the said car was stolen during intervening night of 17/18.06.2010 and FIR in that regard was got registered by him in PS Mangol Puri on 20.06.10. He identified the car from the photographs Ex.P5/A1 to A4.
7. PW6 Ct. Mohinder claimed that on the intervening night of 19/20.06.10, he was on night patrol duty along with Insp. Satender Dhull in official gypsy along with two home guards. He claimed that during patrolling, at about 2.30 am, they reached service lane near Swaroop Nagar Bus Stand, Ganda nala where one Dvan was found stationed. He claimed that on seeing the police party, 23 boys started running towards Maruti 800 car leaving the Dvan. He claimed that those boys fled in the car. He further claimed that one Bunty who was driver of the Dvan told them that the said boys ran away after robbing him. He claimed that thereafter they chased the maruti car in official gypsy and had signaled the boys to stop the car, but they increased speed of the car. He claimed that the car was DL1C3624. Control room police was claimed to have been alerted and at Mukarba chowk, they overtook the maruti car towards left side of road leading to ISBT.
Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 9 of 29 Witness claimed that he stopped his car in front of the maruti car and the six boys got down from the car and ran towards Swaroop Nagar. He further claimed that they chased those boys but could not apprehend them due to darkness. One mobile phone make Nokia was found lying on the dashboard of the car, one music system and a black purse were claimed to have been found lying on back seat. He claimed that in the meantime, Bunty also reached there and identified the music system and the purse. He claimed that at that time, there were no cash in the purse and Bunty told them that it contained Rs. 450. Witness claimed that statement of Bunty was recorded and rukka handed over to him which he took to the PS and got FIR registered. Purse was claimed to have been seized vide seizure memo Ex.PW1/B, music system vide memo Ex.PW1/C, mobile vide memo Ex.PW1/D and a fired cartridge vide memo Ex.PW1/E. Witness claimed that he drove the maruti car to PS Swaroop Nagar. He further claimed that case property was deposited in the malkhana but the mobile phone was kept by Insp. Satender. Witness further stated about arrest of the accused persons on 21.06.10 and identified his signatures on the arrest documents. He further claimed that on 18.08.12 he had gone to Rohini Jail where he identified one of the accused. Witness identified his signatures on TIP proceedings in that regard (Ex.12/B, C & E). He also identified all the accused persons and the case property.
During course of crossexamination, witness claimed that Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 10 of 29 during course of patrol duty he along with Insp. Satender Dhull and two home guard officials only were present in the gypsy driven by him and had left at about 12 midnight. He claimed having seen 23 persons standing near the Dvan. It was claimed that the accused were chased for a distance of about 1 km and that vehicles were passing by on road at that time. He claimed that none of the public persons in their car had chased car of the accused. He further submitted that after getting down, the accused were chased for about 100150 meters. He claimed having left the spot with rukka at about 4.15 am and returned back at about 6.156.30 am. He claimed that some other police officials had also reached the spot by the time he came back. As none of the public persons were present at the spot, none was claimed to have joined proceedings while the car was searched. He did not remember if Bunty had left from the spot or had accompanied them to the PS. Ownership of mobile phone was claimed to have been traced on 20.06.2010 after taking details from the service provider. He claimed that Manoj did not show any document regarding sale of mobile to Mukesh in his presence to the IO. He further claimed that in his presence, IO had not collected documents regarding Mukesh's employment. He further claimed that on 21.06.10, they had left the police station at 2.30 pm in Maruti gypsy. Mukesh was claimed to have met them on ground floor of his house and his brother and mother were also present in the house. House of Mukesh was claimed to be at a distance of 810 km from the PS. He did not remember whether IO Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 11 of 29 had requested public persons or the neighbours to join proceedings. All members of the raiding party were claimed to have gone inside house of Mukesh who was apprehended at about 33.30 pm. He claimed that they had remained in house of Mukesh for about 30 minutes. He claimed that they had reached the railway phatak MCD colony at about 6 pm and public persons were present in the park. He denied the suggestion that no mobile phone was recovered from the maruti car or that the same was taken into possession from house of Mukesh and falsely planted as if it was recovered from the car. He further denied the suggestion that accused Anil and Sunny were not apprehended in the manner stated by him. He denied the suggestion that he had not joined investigation or that none of the accused made any disclosure statement.
8. PW7 ASI Shri Pal proved on record copy of DD no. 3A dtd.
20.06.2010 as Ex.PW7/A. He also proved on record copy of FIR Ex.PW7/B and his endorsement on rukka Ex.PW7/C.
9. PW8 Ct. Sukhbir claimed having joined investigation on 21.06.2010. During course of his examination in chief, he deposed about apprehension and arrest of accused Mukesh, Neeraj, Sunny and Anil. He also identified his signatures on documents already exhibited by PW4. Pointing out memo of the spot prepared at instance of Mukesh and Neeraj was proved as Ex.PW8/A and Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 12 of 29 pointing out memo in respect of the place where they had left the car as Ex.PW8/B. He also identified accused Mukesh, Neeraj, Sachin and Sunny.
During course of crossexamination, he claimed having left the police station at about 2.15 PM. Distance between house of Mukesh and the PS was claimed to be about 34 km. No public person/ neighbour was claimed to have been requested to join proceedings. Mukesh was claimed to have been apprehended at about 33.30 pm. No public person was claimed to have been requested to join proceedings at house of Sachin. He claimed having reached railway phatak at about 55.30 pm. He did not remember the time when they had reached the spot for pointing out memos. He claimed having signed the pointing out memos in the police station. He did not remember as to how many documents were signed by him there. He denied the suggestion that he had not joined the proceedings or that nothing took place in his presence. He denied the suggestion that no accused was apprehended in his presence or that none had made any disclosure statement.
10. PW9 Ct. Shiv Kumar claimed that on 21.06.2010, he and other staff members were briefed by Insp. Satender in respect of incident of the present case. He claimed that Insp. Satender had further informed that a mobile phone was found in the car from which he had traced one accused namely Mukesh. Thereafter Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 13 of 29 witness deposed about arrest of Mukesh and at his instance about apprehension of Sachin. He also identified his signatures on arrest documents.
After seeking permission from the court, witness was crossexamined by ld. PP for State and during course of such cross examination, he admitted that accused Neeraj had also shown them the place from where Maruti car had been stolen and that all accused had pointed out the place where they had abandoned the Maruti car. He identified his signature on the pointing out memos in that regard. He also identified the accused persons. During course of crossexamination, witness claimed that he did not know the DD number vide which they had left the PS on 21.06.10. He claimed that they had left the PS in Maruti gypsy at about 2 pm. House of Mukesh was claimed to be at a distance of about 6 km from the police station. Public persons and neighbours were claimed to have been asked to join investigation, but none agreed. He claimed that IO and Ct. Mahender had gone inside house of Mukesh while other members of raiding party remained standing outside. Mukesh was claimed to have been apprehended at about 2.152.30 pm and they remained at his house for about 30 minutes. House of Sachin was claimed to be at a distance of 2 2.5 km from house of Mukesh. He claimed that they remained at house of Sachin for about 2025 minutes. He claimed that he did not remember as to who had gone inside house of Neeraj along with them. He did not remember the time when they reached the Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 14 of 29 spot for preparation of pointing out memos. Witness claimed having signed the documents at the spot where writing work was done. However, he did not remember how many documents were signed by him. He denied the suggestion that he had not joined the proceedings or that nothing took place in his presence.
11. PW10 Ct. Sanjay during course of his examination in chief reiterated facts stated by PW9. He also deposed about arrest of accused persons and identified his signatures on some arrest documents. He also identified the accused persons. During course of crossexamination, he claimed that he did not know the DD number vide which they had left the police station on 21.06.10 at 2.15 pm. Distance between PS and house of Mukesh was claimed to be 67 km. Public persons were claimed to have been requested to join proceedings, but none agreed. He claimed that only the IO and Ct. Mahender had gone inside house of Mukesh and that Mukesh was apprehended after 2.30 pm. He claimed that houses of Mukesh and Sachin were at a distance of 2 2.5 km from each other. He did not remember as to who had gone inside house of Neeraj. (Rest of the cross examination of the witness appears to be carbon copy of crossexamination of PW9.)
12. PW11 HC Arun produced records from office of ACP Sub Division in respect of mobile number 9971438366. Applications moved for obtaining details of the said mobile number were proved Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 15 of 29 as Ex.PW11/A & B. Copy of records received via Email from the Nodal Officer were proved as Ex.PW11/C & C1. Copies of diary register of correspondence were proved as Ex.PW11/D & E.
13. PW12 Sh. Bhupender Singh proved on record TIP Proceedings in respect of accused Rakesh as Ex.PW12/A to N. He further claimed that witnesses Ct. Mahender, TI Satender Dhull & Bharat Bhushan had correctly identified the accused on 18.08.12.
14. PW13 HC Vinod proved on record copies of entries of malkhana register as Ex.PW13/A, B & C.
15. PW14 ASI Naresh Pal was part IO of the case who claimed having recorded supplementary statement of Bharat Bhusan on 20.07.2010. He claimed that Bharat Bhusan who had come to Rohini Court had identified five accused persons has the ones who had robbed him. Witness further submitted that Bharat Bhushan also informed him about being under threat and hence could not identify Mukesh, Sachin and Anil. He further proved on record his application for obtaining NBW against accused Rakesh and for issuance of process u/S 82 and 83 Cr. P.C. as Ex. PW14/A, B C, and E. Orders for issuance of processes were proved as Ex. PW14/D and F. He claimed having recorded statements of Murti Devi and Raj Kumar and proved the same as Ex. PW14/G and H. Report in respect of process u/S 83 Cr. P.C was proved as Ex.
Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 16 of 29 PW14/I. His statement recorded in the court in respect of the process was proved as Ex. PW14/J. He claimed that the concerned court thereafter declared Rakesh as proclaimed offender. He also identified the accuseds, present in the court. During course of cross examination by ld. Counsel for accuseds, witness claimed that he did not visit native village of Rakesh for execution of warrant and processes u/S 82 and 83 Cr.P.C. He admitted that on inquiry he came to know that accused was not residing in Jeewan Park for past two years. He admitted that even thereafter he did not visit native village of accused Rakesh at Bhiwani. He claimed having recorded statement of Bharat Bhusan in court at 2:00 PM. He admitted that he himself had not called complainant in court on that day. He denied the suggestion that process u/S 82/83 Cr. P.C had not been executed properly or that he gave wrong report or that Rakesh was wrongly got declared as proclaimed offender in this case.
16. PW15 Sh. Neeraj Gaur proved on record TIP proceeding in respect of accused Mukesh, Neeraj, Sachin, Sunny and Anil as Ex. PW15/A, B, C, D, E F, G, H, J, K, L, M, N,O, P, Q, R S, T , U and V. He stated that the identifying witness Bunty could not identify accused Anil, Mukesh, Sachin and that Sunny and Neeraj refused to participate in TIP proceedings.
17. PW16 HC Rang Bahadur proved on record copies of Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 17 of 29 entries of Mal Khana Register as Ex. PW16/A, B and C and of road certificates as Ex. PW16/D, E and F.
18. PW17 SI Jhabbu Ram deposed about arrest of Sachin Sharma on 18.12.2012 u/S 41.1 Cr. P.C. and identified his signatures on arrest documents Ex. PW17/A, B, C and D.
19. PW18 Insp. Satinder claimed that on the intervening nigh tof 19 & 20 June 2010 he was on patrol duty along with staff and during course of paroling at about 2.30 am, they reached service lane near Swaroop Nagar where a Dvan was found stationed. Witness claimed that he noticed that 56 boys ran towards GT road on seeing the police gypsy after leaving the van there. He further claimed that they all ran towards Maruti 800 car lying parked at main GT road in the carriage way from Karnal to Delhi and ran in the said car. Witness further stated that they reached the van where they met one Bunty who informed that the boys had robbed him. He claimed that without wasting the time, they chased the Maruti car in official gypsy and on reaching near the car, he gave signal to the said boys to stop the car but instead they raised speed of the car. He further stated that he noted down registration number of the car DL1C3624 and flashed the registration number to control room and alerted the entire team. He claimed that he kept chasing the car and on reaching Mukarba Chowk Bypass, he fired in air and directed his driver Ct. Mohinder to forcefully block Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 18 of 29 the way of the running car to stop it. He claimed that his driver stopped the said car and the boys left the vehicle there and ran towards Swaroop Nagar. Witness claimed that they were six in number. He further claimed that he had seen all the six persons through the window while peeping outside. He further stated that despite chase, all the boys managed to escape. Witness claimed that on checking the car, one mobile phone was found lying on dashboard of the car and on the rear seat, one music system and black purse was found lying. He claimed that in the meanwhile Bunty also reached there and identified the music system and the pursue as belongings to him. Statement of Bunty Ex.PW1/A was claimed to have been recorded. Witness claimed having made his endorsement Ex.PW18/A and having sent rukka through Ct. Mohinder for registration of FIR. Site plan prepared was proved as Ex.PW18/B. Witness also claimed having drawn route of chasing of the car in the site plan. He claimed that after receiving copy of FIR, he mentioned FIR number on the site plan and also seized the Maruti car and the keys. Mobile phone found in the car was claimed to have been seized vide memo Ex.PW1/D and the music system vide memo Ex.PW1/C. Purse was claimed to have been seized vide memo Ex.PW1/B. Fired cartridge recovered from Mukarba Chowk was claimed to have been seized vide memo Ex.PW1/E. Witness identified his signatures on the memos. Witness claimed that he inspected the mobile phone and made a call from it on one number which was found in the phone. He Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 19 of 29 claimed that the called number belonged to one Manoj Kumar who informed that the recovered mobile having SIM no. 9971438366 belonged to one Mukesh who used to work in the factory where Manoj was supervisor. Witness claimed that Manoj was called to the police station and on seeing the mobile phone, he informed that the mobile set was handed over by his employer Amit to Mukesh around 11 ½ month back in lieu of salary. He claimed having verified the facts from Amit also. Witness claimed that on the next date i.e. 21.06.10 he received a call from Manoj to the effect that Mukesh had been traced at his house in Raja Vihar. Thereafter, witness stated about apprehension and arrest of Mukesh and identified his signatures of arrest documents. Accused Sachin was claimed to have been apprehended at instance of Mukesh. He identified his signatures on arrest documents of Mukesh. Sunny, Anil and Neeraj were claimed to have been apprehended at instance of Mukesh and Sachin. He identified his signatures on their arrest documents also. Witness also deposed about certain other recoveries made at instance of accused persons which were not related to the present case. He also identified his signatures on pointing out memos prepared by him at instance of accused persons. He also identified the accused persons and case property. During course of crossexamination, witness claimed having seen the accused persons from a distance of 4050 meters at the time of incident. He claimed that he also saw them while chasing them as during the chase, vehicle of accused persons came Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 20 of 29 parallel to his vehicle. Witness further submitted that after making short inquiry from the complainant, he immediately started chasing the accused persons. He claimed that he was on the service road when he saw the accused persons who were on the main road at a distance of 4050 meters. No public person was claimed to be present when he reached near the delivery van. Witness further claimed that cut from service road for coming on the main road was at a distance of about 400500 meters. He denied the suggestion that the accused were not arrested in the manner as stated by him. Witness further claimed that before starting the chase, he had given message on wireless set for about 12 minutes. Complainant was claimed to have reached the spot where accused had abandoned their car after about 510 minutes. He claimed that Amit could not produce any documents of ownership of the mobile phone and claimed that it had been given to Mukesh in lieu of his salary. He claimed that he did not conduct any investigation. He claimed that he did not collect any document regarding employment of Mukesh in factory of Amit. He denied the suggestion that Mukesh was not working in factory of Amit. He claimed that he himself did not collect call detail record of the mobile phone found in the car. He denied the suggestion that as the said mobile phone was never used by Mukesh, hence he deliberately did not collect the call detail records. He claimed that he had not requested occupants of adjoining houses at house of Mukesh to join the proceedings. He claimed that from there, they Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 21 of 29 went to house of Sachin on foot while the gypsy driver followed them in the car. No neighbours were claimed to have been requested to join proceedings there. He claimed that neighbours of Neeraj were requested to join proceedings but none agreed. He denied the suggestion that accused were not apprehended in the manner as claimed by him or were falsely implicated after lifting them from their respective houses. He denied the suggestion that no mobile phone was recovered from the Maruti car or had been planted. He denied the suggestion that he was deposing falsely. He denied the suggestion that Rakesh was wrongly identified by him during TIP proceedings. He denied the suggestion that he had never seen Rakesh in person prior to the day when he joined TIP proceedings.
20. PW19 SI Govind claimed that investigation of the present case was marked to him in the year 2012 as accused Rakesh had been arrested in some other matter. He claimed having moved application before court concerned seeking production warrant of accused Rakesh and proved the same as Ex.PW19/A. Rakesh was claimed to have been formally arrested vide memo Ex.PW19/D and his disclosure statement Ex.PW19/C recorded. He further claimed having moved application Ex.PW19/E for conduct of TIP of the accused. Application for PC remand was proved as Ex.PW19/H. Accused was claimed to have pointed out spot of incident vide memo Ex.PW19/J. He claimed having prepared the chargesheet Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 22 of 29 against accused Rakesh.
During course of crossexamination, he denied the suggestion that after arresting Rakesh, he took Rakesh's photograph. He further denied the suggestion of having shown the photograph to Insp. Satender, Ct. Mahender and the complainant. He further denied the suggestion that despite knowing that Rakesh was not connected with the present case, he had filed the chargesheet.
21. As no other witness remained to be examined, prosecution evidence was closed and thereafter statements of accused persons were recorded u/s 313 Cr.PC. Accused Sachin claimed that he was wrongly picked up by police and taken to the PS where he was kept in unmuffled face and shown to many persons including police officials. He claimed that he was innocent. Accused Neeraj claimed that he had been shown to police officials in the police station where he was kept in unmuffled face and had been falsely implicated. Sunny claimed that he had been identified in court by police officials as they had seen him in the police station when he was detained there. He claimed that he was innocent. Accused Rakesh also claimed that he was innocent and stated that he had been falsely implicated. Accused Mukesh claimed that he was innocent and had been falsely implicated.
22. During course of his submission, it was submitted by ld.
Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 23 of 29 PP that after incident wherein the accused persons had looted the complainant and had run away in Maruti car, some of the stolen articles were found in the abandoned Maruti car. It was further submitted that one mobile phone was also found in the car which led investigating agency to PW Manoj and Amit who disclosed that the said mobile phone had been given to Mukesh in lieu of his salary. It was further claimed that after Mukesh was apprehended, he got all other accused persons arrested in this case. It was further submitted that accused Rakesh had been identified during judicial TIP and that accused Sunny and Neeraj had refused to participate in judicial TIP proceedings. It was claimed by ld. PP that as such prosecution had proved its case to the hilt against all accused persons.
23. On behalf of accused persons, it was submitted that accused Neeraj, Sunny, Sachin and Rakesh had all been implicated in this case solely on basis of alleged disclosure statement of accused Mukesh. It was further submitted that besides statement of Mukesh, there was no other legally admissible evidence on record to connect any of the other accused with the alleged offence. Ld. Counsel further pointed out that the complainant when examined as PW1 had not identified any of the accused persons as being the culprit and rather had claimed that the assailants were in muffled faces at the time of incident. It was further submitted that he specifically denied the suggestion of ld. PP to the effect that Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 24 of 29 the accused were the culprits. As regards Mukesh, it was claimed that the entire story regarding Mukesh revolved around testimony of PW2 Amit and PW3 Manoj. It was submitted that no proof of employment of Mukesh or regarding ownership of mobile phone with Amit had been proved on record during course of trial. It was claimed that Mukesh had been falsely implicated in this case. It was p rayed that the accused persons be acquitted.
24. This court has given thoughtful consideration to arguments advanced and has also perused the records.
25. Perusal of record reveals that there was no documentary evidence to support case of prosecution regarding Mukesh being employed in factory of Amit or in respect of the mobile phone having been handed over to Mukesh by Amit in lieu of arrears of salary. Surprisingly, neither PW2 Amit nor PW3 Manoj have deposed about the date when the mobile phone (Ex.P1) was allegedly handed over to Mukesh. Although PW2 Amit claimed having purchased the mobile phone from Grey Market, Karol Bagh, PW3 Manoj claimed that Amit had got the phone in a packed box. Moreover while PW2 claimed that there were 78 workers in the factory, as per PW3, there were 1415 employees.
26. As per PW18 Insp. Satender, Mukesh was apprehended from his house at instance of PW3 Manoj. None of the neighbours Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 25 of 29 around house of Mukesh was claimed to have been called upon to join the proceedings there.
27. No nodal officer or any other officer from service provider has been examined in this case. Rather all documents pertaining to the CDR had been proved on record by PW11 HC Arun. Perusal of his testimony goes to show that record received from office of nodal officer Airtel had been proved on record by this witness who also proved the CDR and entries of the dak register. Significantly, no certificate u/s 65B Evidence Act was proved to substantiate truthfulness of the CDR. In considered opinion of this court, as the CDR has not been legally proved on record, it cannot be taken into consideration as a legal evidence to connect accused Mukesh with the said mobile phone. In absence of any legal proof regarding the CDR, case of prosecution in respect of the said mobile phone being used by Mukesh by inserting a new SIM and the investigating agency having given a call at a number stored in the mobile phone or having talked to Manoj or Amit in that regard is not substantiated. As per story put forth by the investigating agency, mobile no. 09971438366 was being used by Mukesh in the mobile phone which was found in the abandoned vehicle. As per testimony of PW11, record received from office of Nodal Officer Airtel revealed that Vinay Kumar was owner of the said mobile number. Now no connection between Vinay Kumar and Mukesh has been proved on record during course of trial. In that view of matter, this Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 26 of 29 court finds it difficult to place implicit reliance on the averment that the mobile phone found in the abandoned car was being used by Mukesh. As already observed herein above, allegations against the remaining accused persons emanate from the alleged disclosure statement of accused Mukesh. Consequently, the allegedly recovered mobile phone cannot be connected to Mukesh.
28. As regards identification of accused persons during judicial TIP proceedings, it has transpired during testimony of PW15 Sh. Neeraj Gaur that on 26.06.2010, complainant Bunty could not identify accused Anil or Mukesh and that on 03.07.2010 he could not identify accused Sachin. Accused Sunny and Neeraj refused to participate in TIP Proceedings. It further transpires that judicial TIP of accused Rakesh was got conducted on 16.08.12 by Sh. Bhupender Singh and Ct. Mahender correctly identified Rakesh. On 18.08.12, Rakesh was correctly identified by Insp. Satender Dhull and by Bharat Bhushan.
29. That being the position, it is apparent that except for accused Rakesh, no other accused had been identified by any of the witnesses during judicial TIP. As regards Rakesh, he was claimed to have been identified by witnesses on 18.08.12. It should not be lost sight of that the incident allegedly took place on 20.06.10 at night time. The only opportunity with the police officials to see the culprits was while they were chasing the culprits in the cars and Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 27 of 29 when the culprits left their car abandoned and fled away. In considered opinion of this court, claim of police officials of having identified the culprit Rakesh more than two years after the incident during which they only had a chance to have a fleeting look at the running culprit, is too much to be digested. Furthermore, it should not be lost sight of that the complainant during course of his testimony as PW1 had specifically claimed that the culprits were having muffled faces and hence he could not see them, and as per PW6, there was darkness at the spot from where the accused fled away.
Moreover while the complainant during course of his testimony in court claimed that four boys came near him while the fifth kept sitting in the car, the investigating agency has arrayed six accused persons. Interestingly, PW6 claimed that there were 2 3 persons present near the Dvan when police party reached the spot.
30. As regards charges framed against accused Sachin and Rakesh for having committed offences punishable u/s 174A IPC, as per testimony of PW14 ASI Naresh Pal, the witness who had executed process u/s 82 & 83 Cr.PC in respect of Rakesh, during course of inquiries he came to know that Rakesh was not residing in Jeevan Park for past two years. He claimed that address of native village of accused Rakesh at Bhiwani was available, but still he did not visit the said place. As regards accused Sachin, process Sessions case no. 33/10 (State Vs. Anil @ Kallu etc) Page No. 28 of 29 u/s 82 Cr.PC in respect of Sachin had been executed by one Ct. Anil Kumar. Surprisingly, during course of trial the said Anil Kumar was never examined to prove charges u/s 174A IPC against accused Sachin. That being the position, it is apparent that prosecution has failed to bring home guilt of accused Sachin and Rakesh in respect of their having committed offence punishable u/s 174A IPC. Both accordingly stand acquitted in that regard.
31. Consequently, this court is of considered opinion that no importance can be attached to refusal of some of the accused persons to join judicial TIP or regarding identification of accused Rakesh during judicial TIP conducted more than two years after the incident.
32. Resultantly, in considered opinion of this court, evidence which has been led on record is insufficient for passing an order of conviction against any of the accused persons. The story as put forth by the investigating agency and the evidence led during course of trial do no inspire any confidence. In that view of matter, all the accused persons facing trial are ordered to be acquitted in this case.
Announced in open court on 29th October, 2018. (M.R. SETHI) ADDL.SESSIONS JUDGE 03 NORTH WEST, ROHINI COURTS, NEW DELHI.
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