Delhi District Court
State vs Sandeep on 25 July, 2013
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No. 41/2010
FIR No.131/09
U/s 395/397/412/34 IPC
PS ODRS
In the matter of:
State
Versus
1. Sandeep,
S/o Bhoop Singh,
R/o Tihar Kalan, PS Sonepat Sadar,
Distt. Sonepat, Haryana.
2. Ashok,
S/o Sh. Dharam Pal,
R/o Village Badwasni, PS Sonepat,
Haryana.
3. Mehfooz,
S/o Mohd. Noora,
R/o Village Hatwalal, PS Smalka,
District Panipat, Haryana.
4. Parveen Malik,
S/o Sh. Jagminder Singh,
R/o Village Riwara PS Gohana,
District Sonepat Haryana.
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5. Rakesh,
S/o Sh. Anand Singh,
R/o Village and PO Bhagru,
District Sonepat, Haryana.
6. Rohit,
S/o Sh. Subhash Chand,
R/o Village Badhshahpur,
District Sonepat, Haryana.
7. Sanjay,
S/o Sh. Kishan Lal,
R/o Village Gorad, District Sonepat,
Haryana. .....Accused persons
Date of institution : 02.01.2010
Date of Judgment : 25.07.2013
J U D G M E N T
Sandeep, Ashok Kumar, Rakesh, Parveen Malik, Mehfuz @ Monu, Sanjay and Rohit have been facing trial for offences U/s 395 and 397 read with Sec.34 IPC, on the accusation that on 24.09.09 in between 8.30 p.m. to 1.40 p.m., between Narela railway station and Badli railway station, all of them, in furtherance of their common intention committed dacoity in the general compartment of Uchahar Express train and robbed many passengers, travelling in it, of their valuables.
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Sandeep accused has also been facing trial for an offence U/s 412 IPC, on the accusation that on 29.09.09, he got recovered a part of the stolen property i.e. 6 mobile phones, two gold chains, one camera make Yashika and one black colour purse containing photocopy of driving license and two visiting cards of Nagpur Freight Carriers. The driving license and the visiting cards belonged to Naresh Kumar, complainant.
2. Present case came to be registered on the statement of Sh. Naresh Kumar, one of the passengers who boarded Uchahar Express train from Narela for Subzi Mandi railway station on 24.09.09, at about 8.30 p.m. He occupied a seat towards the front gate of general compartment. The moment the train departed from Narela railway station, four boys came to the complainant - Naresh Kumar. All of them were armed with razors. One of them placed a razor against the neck of the complainant whereas an other took out his mobile phone make Nokia 6070 having connection no.9968244137. The third boy took out his purse from the rear pocket of his pant. The purse was containing Rs.700/, some visiting cards of Nagpur Freight Carriers and photocopy of his driving license.
Naresh Kumar further told the police in his statement that some passengers sitting near the door of the general compartment were also robbed of.
When train reached Badli railway level crossing , the assailants pulled chain and the train stopped. As regards identity of the assailants, the complainant told the police that they were in the age group of 2025 years and 3 that he could identify them.
It is case of prosecution that PW Smt. Saraswati, her daughter - Ms. Preeti and soninlaw Sh. Ram Bali boarded the said train from Ambala. They were to go to Nagpur. Smt. Saraswati was also robbed of Rs.10,000/ at the point of weapons.
On reaching Police Post Subzi Mandi, complainant Naresh Kumar narrated the occurrence by making aforesaid statement before ASI Rameshwar Dass. The ASI appended endorsement and sent rukka to PS ODRS through HC Ram Nath. That is how, present case came to be registered.
After registration of the case, ASI Rameshwar Dass and HC Ram Nath reached near Badli railway station, but no one was available. The ASI prepared rough site plan of the place of occurrence. Ultimately, investigation was assigned to SI Rajinder Dabas. Further, it is case of the prosecution that on 28.09.09, SI Rajinder Dabas accompanied by ASI Rameshwar Dass, HC Ram Nath and Ct. Vikas reached Subzi Mandi railway station. At about 6.50 p.m., SI Rajinder Dabas received secret information that persons involved in commission of dacoity in train were going to assemble at Narela railway station.
On receiving information, SI Rajinder Dabas accompanied by other members of the party and the secret informer reached railway station Subzi Mandi. From there, they boarded train and reached Narela railway station. There ASI Rameshwar Dass and HC Ram Kumar were sent towards Bakner 4 railway level crossing. Secret informer pointed towards some persons present there. SI Rajinder Dabas and Ct. Vikas also started heading towards the place pointed out by the secret informer. At some distance, accused Sandeep, Ashok and Parveen Malik were found sitting towards Swatantar Nagar. On seeing the police party accused Sandeep, Parveen and Ashok Kumar tried to escape, but they were apprehended.
It is prosecution case that from possession of Sandeep accused, one toy pistol was recovered, from possession of Ashok Kumar and Parveen, one razor each was recovered. These were seized by SI Rajinder Dabas, after the same were turned into separate parcel.
Further, it is in prosecution evidence that Sandeep, Ashok Kumar and Parveen were then brought to Subzi Mandi railway station and ultimately taken to PS ODRS. There all of them were interrogated. During interrogation, these three accused made disclosure statements and offered to get recovered from H.No.C246, J.J. Colony, Shahbad Dairy, Delhi stolen property robbed from the passengers travelling in Himalayan Queen Express and Unchahar Express. Further it is case of prosecution that accused Parveen, Sandeep and Ashok Kumar led the police party headed by SI Rajinder Dabas to the aforesaid house belonging to PW Ramesh Kumar.
As per prosecution version, accused Parveen and Sandeep were living as tenants in one of the rooms of the said house on the second floor, whereas Ashok 5 Kumar, accused was living as a tenant in another room of the same house on the same floor. Ashok Kumar, accused took out one Nokia 1650 mobile phone from under the pillow in the room under his tenancy and produced the same before SI Rajinder Dabas. It was found to be mobile phone of one Prince Gupta (a victim in case FIR No. 132/09 of PS ODRS.) Accused Ashok and Sandeep led to the room under their tenancy and took out a polythene containing six mobile phones, one camera make Yashika, two chains of gold colour, one purse containing driving license and visiting cards of Nagpur Freight Carriers and photocopy of documents of PW Naresh. Mobile phone S3310 make Samsung was found to be of Ashutosh Trivedi (a victim in case FIR No. 132/09 of PS ODRS.) This stolen property was seized by SI Rajinder Dabas. After the recoveries, SI Rajinder Dabas returned to PS ODRS and deposited the case property in the malkhana.
Further, it is in prosecution evidence that on 29.09.09, Sandeep, Ashok Kumar and Parveen were produced in court. During disposal of application for holding of their Test Identification Proceeding on the same day, all of them refused to participate in the proceeding.
Further, it is case of prosecution that on 22.10.09, Rakesh, accused surrendered before the court and that is how he was arrested in connection with this case. He also refused to participate in Test Identification Proceedings on 6 20.11.09 when produced in court.
On 23.11.09, accused Sanjay was produced before the court on production warrants and he too was arrested in connection with this case. On the same date, Sanjay accused also refused to participate in Test Identification Proceedings.
Accused Mehfuz produced on production warrants on 20.11.2009 also arrested in connection with this case and on the same day, he refused to participate in Test Identification Proceedings.
Rohit accused was produced before Metropolitan Magistrate on 14.01.2010 on production warrants. On 14.01.2010, he also refused to participate in Test Identification Proceedings.
3. On completion of investigation, challan was put in court. Copies of documents relied upon by the prosecution were supplied to the accused persons free of costs U/s 207 Cr.P.C. Case came to be committed to the Hon'ble Court of Session.
Charge
4. Prima facie case having been made out, charge for an offence U/s 395, 397 read with Sec.34 of IPC was framed against all the accused persons on 30.03.2010. Additional charge for an offence U/s 412 IPC was framed against accused Sandeep. Since they pleaded not guilty and claimed trial, prosecution was called upon to lead evidence.
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Prosecution Evidence
5. In order to prove its case prosecution examined, following 15 witnesses: PW1 HC Ved Parkash To prove recording of FIR Ex.PW1/A of this case and its endorsement on the rukka Ex.PW1/B in proof thereof.
PW2 Sh. Naresh Kumar, Complainant One of the victims.
complainant
PW3 HC Ram Nath Who collected rukka from ASI
Rameshwar Dass and got this case
registered.
PW4 Smt. Saraswati One of the victims.
PW5 Ms. Preeti, daughter of Smt. Eye witness to the occurrence. Saraswati PW6 Sh. Ram Bali, soninlaw of Another eye witness to the occurrence. Smt. Saraswati PW7 Sh. Manohar Lal To prove employment of PW Naresh with Nagpur Freight Carriers and issuance of mobile phone make Nokia bearing no.
9968244137 and that on 24.09.09 at about 2.00 a.m. on reaching the office he apprised him of the incident of robbery in the train while he was travelling from Sonepat to Delhi for duty.
PW8 Sh. Dinesh Kumar To prove employment of PW Naresh with Nagpur Freight Carriers PW9 Sh. Ramesh Singh, Owner of To prove factum of tenancy of the two H.No.C246, J.J. Colony, Shahbad rooms of his house and recoveries at the Dairy, Delhi, where Ashok Kumar, instance of accused Ashok Kumar and Parveen and Sandeep accused were Sandeep.
putting up as tenants 8 PW10 Sh. Gaurav Rao, To prove refusal by accused Rakesh, Metropolitan Magistrate Mehfuz, Sanjay, Sandeep, Ashok Kumar, Parveen and Rohit to participate in TIP.
PW11 HC Ram Kumar Witness to recovery of stolen property. PW12 Ct. Vikas Kumar Another witness to recovery of stolen property.
PW13 SI Rajender Dabas Investigating Officer of the case. PW14 ASI Rameshwar Dass Who got the case registered on the statement of PW Rameshwar Dass and witness recovery of stolen property.
PW15 SI Suresh Kumar Who partly investigated the case since 03.10.09.
Statement of Accused
6. When examined U/s 313 Cr.P.C., the accused persons denied their involvement in commission of crime and claimed false implication.
Sandeep accused, however, admitted that he lived as a tenant as H. No. C246, J. J. Colony, Shahabad Diary for a month i.e. in July 2009 under Sh. Ramesh Singh. According to him, it is on 30.09.2009, he was taken by the police to the said house.
Only Mehfooz examined DW1 Sh. V. S. Raja, from Sentinels Security. None of the other accused persons led evidence in their defence.
7. Arguments heard. File perused.
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Discussion
8. This case pertains to dacoity alleged to have taken place on 24.09.2009 in the generalcompartment of moving train - "Unchahar Express". As per prosecution version, occurrence took place at about 8.30 pm, when the train was in between Narela and Holambi Kalan railway station.
Naresh Kumar, one of the victimspassengers came to the PP Subzi Mandi railway station and reported the matter to police, SI Ramehwar Dass accompanied by HC Ram Nath took up the matter. Case was got registered on the statement of Naresh Kumar wherein he narrated the manner in which the occurrence had taken place in the moving train.
As per version narrated by Naresh Kumar before ASI Rameshwar Dass on that day i.e. 24.09.2009, he boarded Unchahar Express from Narela railway station for Subzi Mandi railway station. He occupied a seat near the front gate of general compartment. When the train left Narela Station, four boys armed with razors came to him. One of them aimed his neck with a razor whereas his companion removed from the right side pocket of his pant mobile phone make Nokia 6070 having connection no. 9968244137 while third companion removed his purse containing a sum of Rs.700/, visiting cards of Nagpur Freight Carriers and photocopy of his driving license which he was carrying in rear pocket of his pant. He also told the police officer that other passengers in the rear portion of the general compartment were also robbed. The culprits alighted from the train 10 at railway level crossing of Badli railway station after pulling chain.
As regards identity of the the accused persons, the complainant told the police officer that they were in the age of 2025 years. He also offered to identify them.
ASI Rameshwar Dass appended his endorsement to the aforesaid statement of Naresh Kumar complainant which is Ex PW2/A and sent the same to PS ODRS which led to registration of this case.
While appearing in Court as PW14 ASI Rameshwar Dass stated about arrival of Naresh Kumar complainant at PP Subzi Mandi, on 24.09.2009, at about 10/10.15 pm. He further deposed to have recorded aforesaid statement Ex PW2/A of Naresh Kumar and sent the same to PS ODRS vide his endorsement Ex PW14/A therefore HC Ram Lal.
In order to prove registration of FIR, prosecution has examined PW1 HC Ved Prakash, the concerned Duty Officer as well. According to PW1, he was on duty at PS ODRS, from 8 pm to 8 am on the night intervening 24/25.09.2009. At about 2 am, he received rukka from ASI Rameshwar Dass through HC Ram Lal and on its basis recorded FIR Ex PW1/A.
9. Perusal of FIR Ex PW1/A would reveal that it was recorded at about 2 am. Rukka was despatched from the PP Subzi Mandi at about 1.40 am through HC Ram Lal. As PW3 HC Ram Lal has supported the statement of ASI Rameshwar Dass about despatch of rukka from PP Subzi Mandi and PS ODRS. This shows 11 the promptness with which FIR came to be registered. This fact rules out possibility of concoction of story narrated by PW2 in his statement made to police and then in Court.
10. Learned Defence counsel has pointed out that in his chief examination PW3 HC Ram Nath did not state about recording of statement of Naresh Kumar, at PP Subzi Mandi but he stated about recording of statement of one Sandeep and that too at railway level crossing no. 9 of Badli and then to have taken rukka to the police station. The contention is that this contradicts creates doubt in the prosecution version, as according to ASI Rameshwar Dass it is on the statement of Naresh Kumar recorded at police station Subzi Mandi that present case was got registered.
It is true that in his statement recorded in Court as PW3 HC Ram Nath stated to have reached railway levelling crossing no. 9 of Badli Railway station on receipt of call at PP Subzi Mandi and further that statement of one Sandeep was recorded there by ASI Rameshwar Dass, but a further perusal of statement of this witness would reveal that learned Addl. PP put the leading questions to the witness after seeking permission of the Court regarding the name of the complainant and he corrected himself.
Thereupon, witness stated that it was statement of Naresh Kumar that was recorded by IO and that thereafter rukka was prepared and handed over to him. In his cross examination by learned defence counsel, the witness denied that in 12 his presence statement of Sandeep was recorded and that neither he was present at PP Subzi Mandi nor he joined investigation of the case or that he did not take rukka from ASI Rameshwar Dass.
Prosecution has examined Naresh Kumar complainant as PW2. According to him, after the occurrence, he lodged complaint Ex PW2/A at PP Subzi Mandi. Nowhere in his cross examination by learned defence counsel, the witness was suggested that he had not made statement Ex PW2/A before the police at PP Subzi Mandi or that the same was recorded at railway level crossing no. 9.
From the above evidence, it stands established that case came to be registered at about 2 am on the night intervening 24/25.09.2008 on the basis of rukka despatched from PP Subzi Mandi at about 1.40 am through HC Ram Nath, after Naresh Kumar made statement before the police about the occurrence.
Version narrated by PW2 Naresh Kumar in Court
11. According to PW2 Naresh Kumar occurrence took place at about in the moving train after he boarded the train from Narela Railway station at about 8.30 pm. When the train reached railway station Subzi Mandi, he and others alighted from the train.
So, presence of PW2 Naresh Kumar in train on the given date and time of occurrence stands duly established.
As noticed above, in his statement made before police Naresh Kumar 13 specifically stated that other persons present in rear portion of the compartment were also robbed. Prosecution has examined some of those passengers as PW4, 5 & 6.
PW4 Ms. Saraswati
12. PW4 Ms. Saraswati is another victim, who boarded the train from Ambala alongwith her daughter Ms. Preeti and soninlaw Ram Bali to go to Nagpur. According to PW4, they boarded the train at about 3 pm and the incident took place at 9/9.30 pm when train reached Narela. She her daughter and soninlaw were in general compartment. There was some commotion and some persons armed with big knife came there and at the point of knife robbed her of Rs. 10,000/, which she was carrying in a bag. Further according to the witness, many other passengers in the compartment were also robbed.
In her statement, witness was not subjected to cross examination on the point of her presence in general compartment of the train, commission of robbery of Rs.10,000/ at the point of knife and that other passenger travelling in the compartment were also robbed.
So prosecution version regarding presence of this witness on the given date and time and place of occurrence goes unchallenged and stands established.
PW5 Ms. Preeti and PW6 Sh. Ram Bali
13. PW5 Ms. Preeti and her husband PW6 Sh. Ram Bali have also supported the version narrated by PW Smt. Saraswati by stating that all of them boarded 14 the train from Ambala Cant. They were to change train at Delhi. According to Ms. Preeti and Sh. Ram Bali, when the train reached Narela, some boys got into the compartment. She further stated that one of them was carrying a knife. Those persons robbed her mother at the point of knife.
According to PW6, when train reached Narela some boys got into the compartment with knife and robbed his mother in law Smt. Saraswati of Rs. 10,000/ at the point of knife.
So the prosecution version regarding presence of these two witnesses on the given date and time and place of occurrence also goes unchallenged and stands established.
On the point of identity, learned defence counsel have argued that prosecution has miserably failed to establish that the accused persons present in Court were involved in commission of the crime in the moving train.
On the other hand, learned Addl. PP has contended that prosecution has duly established on record that the all these accused persons were involved in commission of dacoity in the moving train when they were armed with deadly weapon.
Learned defence counsel has pointed out that as per prosecution version 7 accused persons were involved in commission of the crime but PW2 Naresh Kumar stated only about 4 persons, which creates doubt in the version of the prosecution regarding number of culprits in commission of crime. It is true that 15 PW2 stated before the police and also in the Court that only about four persons but he volunteered that he had given number of the culprits as four as only four boys had come to him.
Learned defence counsel has referred to statement of PW4 Smt. Saraswati, one of the passengers travelling in the general compartment of the train and pointed out on the point of identity she did not support the case of prosecution as according to her, none of the accused persons, present in court, were amongst the person involved in the incident. Furthermore when learned Addl. P.P. put leading question to the witness after seeking permission from the court she did not give support to the prosecution version on the point of identity as according to her, the accused persons, present in court, were not involved in the incident. Therefore, the contention is that no reliance should be placed in the prosecution version on the point of identity so far as the accused persons present in court.
Reference has also been placed on statement of PW5 Ms. Preeti and PW6 Sh. Ram Bali, daughter and soninlaw of Smt. Saraswati respectively, who also did not support the prosecution version on the point of identity of accused.
As noticed above, present case came to be registered on the statements of PW Naresh Kumar. That statement is Ex PW2/A. It was recorded at PP Subzi Mandi Railway Station, after the occurrence. As discussed above, presence of PW2 Naresh Kumar on the given date time in Unchahar Express train at the time 16 of occurrence stands duly established.
According to PW2 Naresh Kumar, he saw four boys boarding the train. Those 4 boys came to him and placed razor on his neck and removed his belongings i.e. mobile phone make nokia 6070 and purse which contained currency notes worth Rs.700/, copy of driving license and visiting card of Nagpur Freight Carrier.
PW2 specifically stated that all those persons were holding razors in their hands. Those boys pulled the chain at railway level crossing near Badli alighted from the train and then ran away. During trial, the witness identified all the accused persons.
The aforesaid version stated by the witness in Court is in consonance with his statement Ex PW2/A made before the police wherein he stated that out of the four boys, who were armed with razors, one placed a razor against his neck.
As regards identify of the accused persons, the witness was subjected to cross examination, he offered to identify the persons who had come to him. But on seeing accused persons in Court, he expressed his inability to point out those 4 persons. He tried to explain that he was unable to identify them because of passage of time and that it was late in the evening when the occurrence took place. In the next breath he stated that since time has elapsed he could not admit or deny that accused persons present in Court were involved in occurrence or not.
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PW4 Smt. Saraswati, PW5 Ms. Preeti and PW6 Sh. Ram Bali
14. As regards identity of the accused persons prosecution also examined PW4 Smt. Saraswati, PW5 Ms. Preeti, her daughter and PW6 Sh. Ram Bali, her soninlaw.
It may be mentioned here that according to PW4 Smt. Saraswati, some persons armed with big knives entered the general compartment and robbed her of Rs.10,000/ and also robbed other passengers in the compartment. But she clearly stated that none of the accused persons present in Court was amongst the robbers in train. She was put leading by learned Addl. PP but even then she did not raise any accusing finger towards any of the accused.
Similarly, PW6 Sh. Ram Bali, his wife PW4 Ms. Preeti stated about robbery and Rs.10,000/ from PW3 Ms. Saraswati when some boys entered the compartment with knives robbed her. They did not identify any of the accused present in Court as the robbers. They too were put leading questions by Addl. PP but nothing useful to the prosecution could be elicited on the point of identity of accused.
15. From the evidence of PW4, 5 & 6, this Court finds that prosecution has failed to establish identity of any of the accused persons as the robbers, who committed robbery in moving train Unchaar Express on 24.09.2009. However, from the evidence discussed above, it stands established that Sandeep and Ashok accused led the police party headed by SI Rajinder Dabas from PS ODRS to 18 Shahabad Diary and Sandeep accused got recovered purse containing visiting card of Nagpur Freight Carrier, copy of Driving license of Naresh Kumar from the room under the tenancy. It does stand establish that beyond doubt that Parveen accused also accompanied the police party headed by SI Rajinder Dabas to C246, Shahabad Diary and got recovered any such stolen property. Simple from the fact that they were apprehended near Swantantar Nagar on 28.09.2009 and from the recovery of toy pistol from Sandeep and razor from Ashok and parveen, it is difficult to believe that these three accused were involved in commission of robbery.
Identification of recovered stolen property of Naresh Kumar
16. In his statement Ex PW2/A, witness has specified that he was carrying mobile phone make nokia 6070 having connection no. 9968244137 and that his purse containing Rs.700/, visiting cards of Nagpur Freight Carrier.
He denied in his cross examination that neither his mobile phone nor purse or documents were snatched from him. It is true that the witness in his cross examination admitted to have not been called any connection with identification of his purse and other items and that he had seen these items for the first time in Court on that date (i.e. when his statement was recorded in Court) but the same does not create doubt in his testimony about his travel in the train and commission of robbery at the point of razors. Identification during investigation is only for the satisfaction of the IO that the investigation is 19 heading in the right direction.
Herein prosecution has examined PW7 Mahonar Lal and PW8 Dinesh Kumar employees from the same company where PW Naresh Kumar was serving. It is in their statements that mobile phone no. 9868244136 was being used by PW Naresh Kumar and set of nokia 6070 was gifted to him by the company.
Both the witness stated that they used to call PW2 Naresh Kumar on aforesaid phone number. That is how both of them have given the mobile phone number of PW Naresh Kumar. It is also in their statements that they came to know from PW2 Naresh Kumar about robbery which had taken place in train while he was coming from Sonepat to Delhi for his duty.
There is nothing in the statement of PW7 and PW8 to disbelieve their version that the nokia mobile phone had been gifted to him by the company and the after the occurrence PW Naresh Kumar apprised them about the occurrence of robbery.
He also identified the case property i.e. visiting cards collectively exhibited as Ex P1, photocopy of the driving license as Ex P2. However, as regards mobile phone he stated that none of the mobile phones produced in Court belonged to him.
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Arrest of accused persons Sandeep, Ashok and Parveen and recoveries from them
17. As per prosecution version, occurrence took place on 24.09.2009. Initially only three accused, namely, Sandeep, Ashok and Parveen were arrested from near Swatantar Nagar by police of PS ODRS on 28.09.2009 and from the possession of Sandeep one toy pistol and from the possession of Ashok and Parveen accused one razor each was recovered.
These three accused persons are then stated to have led the police party headed by SI Rajinder Dabas to house no. C246, Shahabad Diary, JJ Colony. At the instance of Ashok, one mobile phone was recovered. Sandeep accused got recovered six mobile phones, one camera and two gold chains. He also got recovered one purse containing two visiting of Nagpur Freight Carrier and photocopy of one driving license of PW Naresh Kumar.
PW13 SI Rajinder Dabas
18. While deposing about arrest of these three accused and recoveries from them. According to PW13 SI Rajinder Dabas, investigation of this case was assigned to him on 28.09.2009. On that date, SI Rajinder Dabas was serving at PS ODRS. He took alongwith HC Ram Kumar from PS ODRS and reached Subzi Mandi Railway Station. On that date, at about 6.50 pm, he received secret information to the effect that persons involved in commission of crime in 21 Himalayan Queen Express were going to assemble at Narela Railway station to commit dacoity in Unchahar Express.
PW12 Ct. Vikas
19. PW12 Ct. Vikas has deposed to have accompanied SI Rajinder Dabas from PS ODRS and reached Subzi Mandi. There a secret informer met and passed on secret information. So PW12 Ct. Vikas has made statement in line with statement of PW13 SI Rajinder Dbas regarding receipt of secret information at PS Subzi Mandi.
According to PW13, SI Rajinder Dabas, on receipt of secret information, he, ASI Rameshwar Dass of PP Subzi Mandi, HC Ram Kumar and Ct. Vikas accompanied by secret informer boarded a train from railway station Subzi Mandi and reached Narela Railway Station. On reaching there, they started heading towards Bakner Railway level crossing. When they covered some distance from the Narela railway station, secret informer pointed out towards some persons present at place between railway tracks and Swatantar Nagar. After having pointed out those persons, secret informer went away.
Further according to PW13 SI Rajinder Dabas, he then directed ASI Rameshwar Dass and HC Ram Kumar to go towards Bakner railway level crossing so as to prevent escape of those persons. Accordingly, ASI and the Head Constable started towards Bakner railway level crossing. 22
PW11 HC Ram Kumar
20. PW11 HC Ram Kumar stated that on 28.09.2009, he joined investigation of other case no. 132/09 of same police station. According to the witness, Sandeep, Ashok and Parveen were arrested from Narela railway station, at the pointing out of secret informer.
It is also in the statement of PW12 Ct. Vikas that ASI Rameshwar Dass and HC Ram Kumar were sent towards Bakner railway level crossing whereas he and SI Rajinder Dabas also started towards Banker railway level crossing. The witness further explained that ASI Rameshwar Dass and HC Ram Kumar then started returning from the side of Bakner Railway level crossing towards Narela Railway Station.
According to PW12 Ct. Vikas, he, ASI Rameshwar Dass and HC Ram Kumar and SI Rajinder Dabas reached Narela Railway Sation at 7.40 pm. Thereafter, all of them left for Bakner railway level crossing. Secret informer pointed out towards persons present near pole no. 9 in between Narela Railway Station and Bakner Railway level crossing. Further according to the witness, they found three boys present at that place. They were Sandeep, Ashok and Parveen. Witness correctly pointed out these accused persent in Court. By stating so PW12 Ct. Vikas has lent corroboration to the version narrated by PW13 SI Rajinder Dabas as to the manner in which three accused persons were apprehended while ASI Rameshwar Dass and HC Ram Kumar were returning 23 from the said of Bakner railway level crossing and he (PW13) and PW12 Ct. Vikas were heading towards that place.
Recoveries from Sandeep, Ashok and Parveen from near the railway tracks Swatantar Nagar
21. It is case of the prosecution that Sandeep, Ashok and Parveen were found in possession of weapons. PW13 SI Rajinder Dabas has stated that one countrymade toy pistol was recovered from left dub of Sandeep; that one razor was recovered from right side pocket of pant of accused Ashok and that one razor was recovered from the right side pocket of pant of Parveen.
PW 12 Ct. Vikas has made statement in consonance with the statement made by PW13 ASI Rameshwar Dass about recovery of toy pistol from Sandeep and one razor each from Ashok and Parveen.
PW12 and PW 13 have also deposed about preparation of rough sketches of toy pistol and two razors; that these were turned into separate parcels, sealed with seal bearing impression RD and then seized.
According to PW12 Ct. Vikas, copy of sketch of toy pistol is Ex PW12/B; copy of razor recovered from Ashok accused is Ex PW12/C and copy of razor recovered from Ashok accused is Ex PW12/E. The witness also proved his attestation on the seizure memos Ex PW12/D & F. Case property when produced in Court was identified by PW12 Ct. Vikas. He identified the toy pistol Ex P3 as the one recovered from Sandeep, razor Ex 24 P4 with words "gellato safe shaver" written on it as the one recovered from Ashok accused. He also identified razor Ex P5 as the one recovered from Parveen.
A perusal of sketches Ex PW12/B, C and E and recovery memos Ex PW12/D and F would reveal that all the sketches bear attestation of three witnesses, namely, ASI Rameshwar Dass, HC Ram Kumar and Ct. Vikas. Similarly, recovery memo Ex PW12/D and F bear attestation of these three police officials. However, prosecution has not produced on record any recovery memo in respect of toy pistol. Nonproduction of copy of recovery memo of the toy pistol (the same having been prepared in case FIR No. 132/09) does not create doubt in the version of the prosecution regarding arrest of Sandeep in the company of coaccused Ashok and Parveen accused on 28.09.2009 near Swantantar Nagar.
Learned defence counsel has referred to the seizure memo dt.29.02.09 prepared in case FIR no.132/09 of the same police station i.e. PS ODRS and submitted that in case any case property pertaining to the present case was also got recovered by the accused persons in case FIR no.132/09, the IO would not have mentioned at the top of the recovery memo that it was a case of recovery U/s 102 Cr.P.C. and rather the IO would have specified that such and such items. The contention is that since seizure was U/s 102 Cr.P.C. it an safely be said that recovery has been planted upon the accused.
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It may be mentioned here that SI Rajinder Dabas was investigating officer of case FIR No. 132/09 whereas ASI Rameshwar Dass was IO of the present case.
Since the case property belonging to Naresh Kumar was recovered by SI Rajinder Dabas during investigation of case FIR No. 132/09, he was justified in mentioning provisions of 102 CrPC at the top and by way of last sentence of this document Ex PW9/A, which is copy of seizure memo prepared in case FIR No. 132/09.
22. As regards the contention raised on behalf of the accused that no witness from the public was associated by SI Rajinder Dabas from Subzi Mandi Railway Station or on reaching Narela Railway Station, before the three accused were apprehended from near Swatantar Nagar, SI Rajinder Dabas deposed in cross examination that passengers were present at Subzi Mandi Railway Station but he did not disclose the secret information to any of them so as to join them in the party.
According to PW12 Ct. Vikas Kumar they had started from Narla Railway Station towards Bakner railway level crossing at about 7.50 pm. Accused persons were apprehended at about 8 pm. Nonjoining of witness from the public, in the given circumstances, at the given time, does not come to the aid of the accused. It is well settled that the absence of independent corroboration at the most puts the Court of guard to scrutinize statement of police official with 26 more care and caution.
On reaching Narela Railway Station he asked 45 passengers to join the party, but none of them came forward. According to SI Rajinder Dabas those passengers had travelled from Subzi Mandi to Narela. It is a matter of common knowledge that passengers seldom come forward to join the police party because of their own schedule of travel. Therefore. Even if no notice was issued by SI Rajinder Dabas to any of the passengers, who did not join the party, no adverse inference can be drawn against the prosecution on the point of nonjoining of persons from the public.
In his cross examination, PW 13SI Rajinder Dabas admitted to have not asked any railway employee or officer to join the party, the reason being that no one was available at platform no. 1. He further admitted to have not asked anyone from GRP Narela to join the party.
The explanation furnished by SI Rajinder Dabas in that regard is that the office was on the other side i.e. across the railway tracks. It was not suggested to the SI in his cross examination that the office of GRP Narela was not situated across the railway tracks. There is nothing in the cross examination of SI Rajinder Dabas to disbelieve this explanation about the location of the office of GRP Narela towards the other side of the railway track.
As regards any shop, SI Rajinder Dabas displayed ignorance if any shop was situated outside Narela railway station. According to the SI, houses near the 27 track in the area of Swatantar Nagar were having their doors towards other side. Although it was suggested to the witness that doors of those houses were towards the track, no cogent or convincing has been brought on record to suggest that anyone could be associated from those houses in the area of Swatantar Nagar, before or after these three accused Sandeep, Ashok and Parveen were arrested.
It has come in the statement of PW12 Ct. Vikas Kumar that they left Subzi Mandi Railway Station at about 7 pm and reached Narela Railway Station at about 7.40 pm. It is in prosecution evidence that the police party travelled by a passenger train. There is nothing to the contrary on record to suggest that no passenger train used to leave Subzi Mandi Railway Station during those days at about 7 pm and reach Narela Railway Station at about 7.40 pm. Therefore, there is not merit in the contention raised by learned defence counsel that prosecution has failed to prove departure of the police party headed by SI Rajinder Dabas from Subzi Mandi Railway Station to Narela.
It is in the statements of the witnesses that no writing work could be done at the place of arrest of accused Sandeep, Ashok and Parveen and that the writing work was done on reaching Narela Railway Station. Learned defence counsel have submitted that this fact creates doubt in the prosecution version about any such recovery.
A perusal of statements of prosecution witnesses, would reveal that their 28 statements are consistent on the point of arrest of Sandeep, Ashok and Parveen accused and recoveries made from them by the side of railway track from near Swatantar Nagar. When the recoveries had already been made near the railway track, nonjoining of any witness from the public at Narela Railway Station, after the recoveries and at the time when writing work was done, does not adversely affect the case of prosecution.
Recoveries from C246, Shahabad Diary, J. J. Colony, Delhi
23. It is case of the prosecution that during interrogation Sandeep, Ashok and Parveen accused made disclosure statements and then led to house no. C246, Shahabad Diary, J. J. Colony, Delhi and from tenanted portion, Ashok and Sandeep accused got recovered a part of stolen property of this case and major portion of the stolen property of case pertaining to case FIR No. 132/2009 PS ODRS.
In order to prove disclosure statement and recoveries from H. No. C246, prosecution has examined PW11 HC Ram Kumar, PW12 Ct. Vikas and PW13 SI Rajinder Dabas.
According to PW13 SI Rajinder Dabas, during interrogation, accused Sandeep, Ashok and Parveen made disclosure statements. From the disclosure statements, it transpired that Sandeep accused was living as a tenant in one room wheres Ashok and Parveen were living as tenants in the other room of H. no. C246, Shahabad Diary, J. J. Colony, Delhi. All the three accused also offered 29 to got recovered robbed items from the aforesaid rooms.
Further according to PW13 SI Rajinder Dabas all the three accused then led them to H. No. C246 i.e. house of Ramesh Singh. At that time, Ramesh Singh, landlord was present there. He was joined in the investigation.
PW12 Ct. Vikas has also deposed about disclosure statement made by Sandeep, Ashok and Parveen and that they had kept all the items robbed from Himayalan Queen and Unchahar Express in room of C246, Shahabad Diary, J. J. Colony and that they could get same recovered. He also deposed that three accused then led to the said house where Ramesh, Landlord was found present.
Further according to PW12, two rooms were pointed out by the accused persons, which was on the second floor.
It is in the statement of PW13 SI Rajinder Dabas that Ashok, Sandeep and Parveen accused then led them and opened the room under their tenancy, on the second floor of the house. Ashok accused took out one nokia mobile phone 1650 from under a pillow an produced the same before him. This mobile, on checking IMEI number, was found to pertain to PW Prince Gupta (victim in case FIR No. 132/09).
Further according to PW13, Sandeep accused then led them to other room under his tenancy and took out a polythene containing six mobile phones, one camera, two gold chains, one purse containing two visiting of Nagpur Freight Carrier and photocopy of one driving license of PW Naresh Kumar. 30
It is in the statement of SI Rajinder Dabas that on checking the IMEI number of six mobile phones, one mobile phone make Samsung 3310 was of Ashutosh, one of the victim in case FIR No. 132/09 of PS ODRS.
PW12 Ct. Vikas has also deposed about recovery of mobile phone 1650 from behind the pillow when produced by Ashok accused and about its seizure.
PW12 has also deposed that Sandeep accused took out one polythene containing fix mobile phone, one camera, two gold chains, one purse containing two visiting of Nagpur Freight Carrier and photocopy of one driving license of PW Naresh Kumar.
Further according to him, out of the six mobile phones, one belonged to one of the passengersvictims in case FIR No. 132/09. PW12 then proved his attestation at point A on recovery memo Ex PW9/A. He also identified the case property i.e. Samsung phone Ex P6 got recovered by Sandeep accused, nokia mobile phone 1650 Ex P7 got recovered by Ashok, purse Ex P3, Yashica Camera Ex P8, five mobile phones Ex P9/1 to 9/5 and two gold chains Ex P10 (collectively exhibited).
It is in the statement of PW13 SI Rajinder Dabas that Samsung mobile phone was seized separately. Five mobile phones, gold chains, camera, purse and its contents were also seized. Gold chains were according to him turned into parcel and sealed with the seal bearing impression RD. It is in his statement that he apprised the IO of other case about recovery of case property in this case. 31
PW11 HC Ram Kumar is one of the witness to the recoveries from C246, J. J. Colony, Shahabad Diary. According to him, during investigation of case FIR No. 132/09, one purse containing copy of driving license, receipt of Nagpur Freight Carrier and two visiting cards pertaining to this case were recovered at the instance of Sandeep accused from H. No. C246, J. J. Colony, Shahabad Diary. He also deposed about recovery of mobile phones pertaining to case FIR no. 132/09 at the instance of Sandeep, Ashok and Parveen accused.
When the purse visiting card and photocopy of driving license were taken out of a sealed parcel bearing particulars of case FIR No. 132/09 PS ODRS, witness identified the same and those were exhibited as Ex P1, P2 and P3.
Statement of PW11 HC Ram Kumar was not subjected to any cross examination on behalf of any of the accused except Parveen accused.
In his cross examination, on behalf of Parveen accused, HC Ram Kumar stated that they reached Shahabad Diary in between 4.30 am to 4.45 am. H. No. C246, Shahabad Diary was on the road of the colony. He stood the test of cross examination about location of two rooms from where recoveries were made.
From the statement of PW12 Ct.Vikas Kumar it stands established that he was also member of the party headed by SI Rajinder Dabas, in whose presence, recoveries were made from H. No C246, in pursuance of disclosure statement.
In his cross examination, PW12 stated that they left PS ODRS and reached Subzi Mandi Railway Station at about 3.30 am 3.45 am by a private taxi and 32 reached Shahabad Diary at about 4.30 am. He further stated that no one except the landlord of the house no. C246 was available for being joined in the party. He further stated that the two rooms under the tenancy of the accused persons were lying locked from outside. Those rooms were not interconnected. He supported the prosecution version by stating that first of all the room in occupation of Ashok accused was opened with a key which was under a brick outside the room. This version is also in consonance with the version narrated by PW13 SI Rajinder Dabas.
It is also in the statements PW12 Ct. Vikas that key of the room, under tenancy of Ashok accused was under a brick and lying in front of the room.
In his cross examination PW13 SI Rajinder Dabas denied that the accused persons did not make any disclosure statements or that their signatures were obtained on blank papers. He also denied that he and other members of the party never visited Shahabad Diary and that no recoveries was made from Parveen accused.
While appearing in Court PW13 SI Rajinder Dabas was shown purse taken out of a parcel bearing particulars of this case and he identified the same as the one got recovered by Sandeep accused from the tenanted room. Purse was exhibited as Ex P3.
As noticed above, PW9 Sh. Ramesh Singh has clearly stated about tenancy of two rooms of his house under Sandeep, Ashok and Parveen. In his 33 cross examination, he stated that neither any rent agreement was executed nor any rent receipt was issued by him but none execution of any rent agreement or non issuance of any receipt does not adversely affect the case of prosecution regarding tenancy of two room.
There is nothing in the statement of PW9 Ramesh Singh that he had any motive to depose against the accused persons or that he was interested in the prosecution. In his statement under Section 313 CrPC, Sandeep accused admitted to have resided as a tenant at H. No. C246, Shahabad Diary, under Sh. Ramesh Singh, the landlord.
Parties do enter into oral agreement regarding tenancy. Ashok and Parveen accused could lead evidence in defence that they never resided at H. No. C246 as tenants at any point of time. Therefore, nonexecution of any rent agreement or issuance of any rent receipt does not adversely affect the case of prosecution, on the point of tenancy.
According to PW9 Ramesh Singh, there were 56 police persons in the party, out of whom some were in uniform and some were in civil clothes. Police took about 30 minutes in conducting search and other proceedings in the room.
It is true that the witness stated that there were only Sandeep and Ashok with the police party but the same does not create any doubt in the version of the prosecution regarding recovery of the mobile phone from one of the rooms, at the instance of Ashok and the other items i.e. 56 mobile phones, a purse, a 34 camera, two gold chains from the other room at the instance of Sandeep. Had no such recovery been got made by Ashok and Sandeep accused from the aforesaid rooms, PW9 would not have stated about these recoveries at their instance. At the cost of repetition, it may be mentioned that there is nothing in the statement of PW Ramesh Singh that he was inimical towards these accused so as to depose falsely against anyone of them.
As regards, nonjoining of any other person from the locality, it has come in evidence that no one was available for being associated. Even otherwise, police visited Shahabad Diary in the early hours of the morning. At that time, persons from the public could not be available for being associated in the party as explained by the police officials/officers. Even otherwise when the landlord of the house was very much available, nonjoining of any other person from the locality does not adversely affect the case of prosecution.
It has come in evidence that the police party travelled upto Shahabad Diary by a private taxi, and the taxi driver was available. But when the landlord of the house was available and he joined the investigation, nonjoining of the taxi driver does not create any doubt regarding visit of the police party to H. No. C246 and about the recoveries at the instance of Ashok and Sandeep accused.
It is true that departure entry is required to be recorded and proved on record so as to prove departure of police party from the police station. But in this case when SI Rajinder Dabas stated in his cross examination about 35 recording of departure entry at police station ODRS while leaving for Shahabad Diary, and from the statements of the prosecution witness, it stand proved that the party consisting the SubInspector, HC Ram Kumar, ASI Rameshwar Dass and Ct. Vikas kumar reached Shahabad Diary at about 4.30 am, nonproduction of departure entry on record does not create any doubt in the prosecution version narrated by the PWs, particularly when the same stands corroborated from the testimony of an independent witnessPW Ramesh Singh.
It is in the statements of police official that local police of the concerned police station within the jurisdiction of which the area of Shahabad Diary situated was not informed regarding arrival of the police party. Noninforming the local police also does not create doubt in the version of prosecution regarding arrival of the police party at H. No. C246, Shahabad Diary, when PW Ramesh Singh has supported the prosecution version regarding arrival of police party at his house on the give date in the company of Ashok and Sandeep accused and made the aforesaid recoveries.
24. In defence, on Mahfooz has examined as one DW1 Sh. V.S. Raja from Sentinels Security, in support of his defence plea that on the given date at 9 pm, he was present at the factory of Nestle at Samalkha (Haryana) for his job for the shift from 9 pm to 5 am.
According to DW 1 Sh. V.S. Raja, Mahfooz S/o Sh. Noora R/o Village Haathwala, PS: Samalkha, District Panipat (Haryana) was in their employment 36 from 29.7.2009 having posting with Nestle in Haryana as a Chowkidar/Security Guard. In this regard, he placed on record documents Ex.DW1/1.
From the statement of DW1, it stands proved that Mahfooz was employed with the aforesaid company from 29.7.2009 and his posted as Security Guard was with Nestle at Haryana. But it was for the accused to establish that on the night intervening 24/25.9.2009, he was present on his duty with Nestle at Samalkha. However, there is nothing in the statement of DW1 if on that night he was present on his duty with Nestle. DW 1 could not produce any such record, the reason being that the same stood destroyed.
25. Although Mehfooz accused has not been able to establish the plea of alibi, the initial onus to prove the accusation was on the prosecution. As discussed above, prosecution has failed to establish participation of Mehfooz accused in commission of the crime on the given date and time.
As discussed above, prosecution has also failed to establish participation of other accused persons in commission of robbery in Unchahar Express on the given date, time and place. Therefore, all the accused persons are acquitted of the offence under Section 395 & 397 IPC.
On the point of Offence proved on record
26. From the factum of recovery of purse containing visiting cards, copy of driving license of Naresh Kumar on 29.09.2009, at the instance of Sandeep accused from the tenanted room, although, as discussed above, it cannot be said 37 that he was involved in robbery which took place in Unchahar Express on 24.09.2009, but having regard to the factum of recovery of the stolen belonging of PW2 Naresh Kumar from his possession, it can safely be said that Sandeep accused dishonestly kept in possession this stolen property robbed from Naresh Kumar on 24.09.2009, knowing and having reasons to believe the same to be such stolen property and thereby he made himself liable for the offence under Section 412 IPC.
27. I thus hold accused Sandeep accused guilty of the offence under Section 412 IPC. Accordingly, he is convicted thereunder.
28. Let convict Sandeep be heard on the point of sentence.
Announced in Open Court
on 25.07.2013 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
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