Sandeep vs State Of Maharashtra on 25 July, 2013

[Cites 12, Cited by 0]

Delhi District Court

Sandeep vs State Of Maharashtra on 25 July, 2013

                IN THE COURT OF SH. NARINDER KUMAR
            ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI

SC No.42/10
FIR No.132/09
PS ODRS
U/s 395, 397, 412 IPC

State

Versus

1.      Sandeep, 
        S/o Bhoop Singh, 
        R/o Tihar Kalan, 
        PS Sonepat Sadar, 
        Distt. Sonepat, Haryana.

2.      Ashok Kumar, 
        S/o Dharma Pal, 
        R/o Vill. Badwashni, 
        PS Sonepat Sadar, 
        Distt. Sonepat, Haryana.

3.      Rakesh Kumar, 
        S/o Anand Singh, 
        R/o Vill. & PO Baghru, 
        Distt. Sonepat, Haryana.

4.      Parveen Malik, 
        S/o Jagminder, 
        R/o Vill. Riwara, PS Gohana, 
        Distt. Sonepat, Haryana.


                                        1
 5.     Mehfuz @ Monu, 
       S/o Noora, 
       R/o Vill. Hathwala, 
       PS Samalkha, 
       Distt. Panipat, Haryana.

6.     Sanjay, 
       S/o Krishan, 
       R/o Vill. & PO Bhagru, 
       Distt. Sonepat, Haryana.

7.     Rohit, 
       S/o Subhash Chand, 
       R/o Vill. Badshah Pur Machari, 
       PS Gohana, Distt. Sonepat, Haryana.                         ......Accused persons

Date of institution : 16.02.2010
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. Sandeep and Ashok Kumar have also been facing trial for an offence U/s 412 IPC.

2. In brief, accusation levelled against the seven accused persons is that on 27.09.09 in between 7.30 p.m. to 8.15 p.m. near railway station Holambi Kalan all of them in furtherance of their common intention committed dacoity in Himalayan Queen train and robbed Sh. Shashi Kant, Sh. Anil Kumar Jha and Smt. Bimla at the point of weapons.

On 29.09.09, Sandeep, accused is alleged to have got recovered some of the stolen property from the tenanted room of H.No.C246, J.J. Colony, Shahbad Dairy, Delhi, whereas Ashok Kumar allegedly got recovered a part of the stolen property i.e. one mobile phone make Nokia from the tenanted room in the aforesaid house.

It is case of prosecution that Shashi Kant, complainant boarded general coach of Himalayan Queen train from Kurukshetra. PW Udhal Singh boarded the general compartment of said train at Kalkaji. PW Ashutosh Trivedi, PW Hem Vardhan and PW Prince Gupta also boarded general coach of the said train at Kalkaji. PW Smt. Bimla also boarded the same coach.

At about 9.00 p.m., the train reached railway station Sonepat. At that time, two police officials alighted from the general compartment and boarded the next compartment.

When the train departed from railway station Sonepat, 67 boys in the age group of 20 - 30 years boarded the train from the other side of the platform. When the train reached near railway station Narela, those 6 - 7 boys covered the general compartment. Some took out knives and razors while one of them took out country made pistol. Then they started robbing the passengers in general compartment.

Above referred to Udhal Singh pulled the chain. As a result, the train reached railway station Holambi Kalan and stopped there. Passengers travelling in the general compartment raised hue and cry. The culprits alighted from the compartment and made their good escape, taking advantage of darkness. 3

It is case of prosecution that Shashi Kant was robbed of Rs.8000/ at the point of country made pistol; Hem Vardhan was robbed of mobile phone S3310 make Samsung; Smt. Bimla was robbed of her gold chain and Rs.10,000/; PW Prince Gupta was robbed of his mobile phone make Nokia 1650; PW Anil Kumar Jha was robbed of mobile phone make Sony Erricson and Rs.2000/; PW Ram Bisht was also robbed of gold chain, gold ring and currency notes worth Rs.6000/.

It is case of prosecution that information about the occurrence reached PP Subzi Mandi railway station vide DD no.20PP from PCR. The caller calling from phone no.23366543 informed that some bad elements were committing robbery in Himalayan Queen train in between Narela and Holambi Kalan. This information was received at the police post at about 10.00 p.m. Copy of DD n o. 20 was communicated to ASI Rameshwar Dass through Ct. Vikas and also telephonically. Thereupon, ASI Rameshwar Dass and Ct. Vikas reached Subzi Mandi railway station where Himalayan Queen train was present. In and outside the compartment adjoining the coach of the guard many persons were found present out of them Shashi Kant came forward and made statement.

ASI Rameshwar Dass appended endorsement to the statement of Shashi Kant and sent rukka to PS ODRS. On its basis, present case came to be registered.

It may be mentioned here that in the statement Shashi Kant narrated the manner in which occurrence took place in the moving train. As regards identity of the culprits, the complainant described that out of the 6 - 7 boys, who were in 4 the age group of 20 - 30 years, one was a fat boy, wearing white colour shirt and blue colour jeans, having sanwala complexion and a cut mark on his right cheek. The other boys were of normal physique and of wheatish complexion. They were wearing shirt and jeans.

ASI Rameshwar Dass also recorded statements of other witnesses including Udhal Singh, Ashutosh Trivedi, Prince Gupta, Smt. Bimla and Anil Kumar Jha. He took into possession travelling tickets from some of the passengers. During investigation by ASI Rameshwar Dass, no clue about the culprits could be gathered. Further investigation of the case was assigned to SI Rajinder Dabas.

It is in prosecution evidence that on 28.09.09 at about 6.20 p.m., SI Rajinder Dabas accompanied by SI Rameshwar Dass, HC Ram Kumar and Ct. Vikas left PS ODRS and reached Subzi Mandi railway station. There, a secret informer met SI Rajinder Dabas and disclosed secret information. On the basis of secret information, the party headed by SI Rajinder Dabas reached Narela railway station. From there ASI Rameshwar Dass and HC Ram Kumar were sent towards Bakner railway level crossing. The ASI and HC Ram Kumar after having covered some distance found accused Sandeep, Ashok and Parveen Malik sitting towards Swatantar Nagar. SI Rajinder Dabas and Ct. Vikas also started heading towards the place pointed out by the secret informer. 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 5 pistol was recovered; from possession of Ashok Kumar and Parveen; and 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. 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 Singh. 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 Kumar, accused was living as a tenant in another room of the same house on the same floor.

As per prosecution version - Parveen and Ashok Kumar, accused took out one Nokia 1650 mobile phone from under a pillow lying in the room under his tenancy and produced the same before SI Rajinder Dabas. It was found to be mobile phone of PW Prince Gupta.

Then Sandeep led to the room under his 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 6 make Samsung was found to be of PW Ashutosh Trivedi.

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 with muffled faces. During disposal of application for holding of their Test Identification Proceeding, all of them refused to participate in the proceeding.

Further, it is case of prosecution that on 22.10.09, Rakesh, accused was produced before the court and that is how he was arrested in connection with this case.

On 20.11.09, accused Sanjay surrendered before the court and he too was arrested in connection with this case.

Accused Mehfuz was also arrested in connection with this case and produced in court with muffled face. ON 20.11.09, Mehfuz accused refused to participate in Test Identification Proceedings.

Similarly, Rakesh accused also refused to participate in Test Identification Proceedings on 20.11.09 when produced in court.

On 23.11.09, Sanjay accused also refused to participate in Test Identification Proceedings when produced in before Metropolitan Magistrate with muffled face.

Rohit accused was produced before Metropolitan Magistrate on 14.01.2010. He also refused to participate in Test Identification Proceedings. 7

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 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 and Ashok Kumar. Since they pleaded not guilty and claimed trial, prosecution was called upon to lead evidence.

Prosecution Evidence

5. In order to prove its case prosecution examined, following 24 witnesses: PW1 Sh. Udhal Singh Victim PW2 Sh. Ramesh Singh Owner of the H. No. C246, Shahabad Diary, Delhi and witness to recoveries.

       PW3 Sh. Ashutosh Trivedi              Victim
       PW4 Sh. Shashi Kant                   Victim

PW5 HC Ved Parkash, Duty To recording of FIR Ex PW5/A on the Officer basis of rukka Ex PW5/B. PW6 HC G. Raja Kumar To prove arrest of Rakesh accused from the Court vide arrest memo Ex PW6/A and also his personal search memo Ex PW6/B PW7 SI Prem Chand To proved arrest of Sanjay accused from the Court vide arrest memo Ex PW7/A and also his personal search memo Ex PW7/B PW8 Smt. Bimla Devi Victim 8 PW9 Sh. Prince Gupta Victim PW10 Sh. Tarun Khurana, Nodal To prove documents Ex PW10/A, B, C & Officer, Bharti Airtel Ltd. D pertaining to mobile phone no.

9805871907 PW11 Sh. Shishir Malhotra, Nodal To prove document Ex PW11/A pertaining Officer, Aircel Ltd. to mobile phone no. 9716871166 PW12 HC Ram Kumar Witness to recovery of stolen property. PW13 Sh. Gaurav Rao, To prove refusal of accused Rakesh, Metropolitan Magistrate Mehfuz, Sanjay, Sandeep, Ashok Kumar, Parveen and Rohit to participate in TIP.

PW14 Sh. Hemwardhan Singh Victim PW15 HC Dharambir, Duty Officer To prove DD entry Ex PW15/A PW16 Ms. Twinkle Wadhwa, To prove refusal of accused Sandeep, Principal Magistrate, Juvenile Ashok Kumar and Parveen Malik to Justice Board participate in TIP.

PW17 Sh. Pankaj Kumar, To prove document Ex PW17/A & Ex Authorized Representative of Idea PW17/B pertaining to mobile phone no.

Cellular Ltd. 9891925491 PW18 Sh. Israr Babu, Nodal To prove documents Ex PW18/A, B & C Officer, Vodafone Mobile Service pertaining to mobile phone no.

     Ltd.                                    9805871907
     PW19 Ct. Vikas Kumar                     Witness to arrest and recovery
     PW20 SI Rajender Dabas                   Investigating Officer of the case.
     PW21 Sh. Anil Kumar Jha                  Victim
     PW22 ASI Rameshwar Dass                  Who   got   the   case   registered   on   the 
                                              statement   of   PW   Udhal   Singh   and 
                                              witnessed recovery of stolen property.

PW23 HC Bharampal Singh, To prove the manner in which he dealt concerned MHC(M) with the case property.

     PW24 Sh. Ram Briksh                      Another victim

     Statement of Accused

6. When examined U/s 313 Cr.P.C., the accused persons denied their 9 involvement in commission of crime and claimed false implication. Sandeep accused however admitted that he lived as a tenant at H.No.C246, J.J. Colony, Shahbad Dairy for a month i.e. in July,09 under Sh. Ramesh Singh. According to him, it is on 30.09.09, that he was taken by the police to the said house.

7. Accused have not led any evidence in defence despite opportunity.

8. Arguments heard. File perused.

Contentions

9. One of the contention raised by learned defence counsel is that police did not join any witness from public at Narela Railway Station before or after the alleged arrest of Ashok, Sandeep and Parveen. Further, it has been submitted that at the time of alleged recovery from H.No.C246, J.J. Colony, Shahbad Dairy, Delhi, IO SI Rajinder Dabas did not associate any person from the locality which creates doubt in the prosecution version regarding recoveries alleged to have been made at the instance of Ashok, Sandeep and Parveen.

Contentions raised by learned defence counsel is that as per prosecution version occurrence took place. It has been submitted that according to witnesses from public occurrence took place at about 8.30 or 9.00 p.m. The contention is that this difference in time of occurrence creates doubt in the prosecution version regarding presence of PWs at the spot.

Case of prosecution is that travelling tickets only of some of the passengers were taken into possession in the investigation. Learned defence counsel contended that prosecution has failed to establish beyond doubt of traveling ticket of the passengers including PW9 Prince Gupta. 10

On the point of identity, learned counsel for Parveen & Sanjay accused has contended that according to some of the witnesses, only four boys boarded the general compartment and committed the crime which creates doubt in the prosecution version about involvement of 67 persons and as such, the accused persons are entitled to acquittal.

As regards refusal of the accused persons to participate in Test Identification Proceeding, learned defence counsel contended that no cogent and convincing evidence has been led by the prosecution to prove that after the arrest, the accused persons were directed to keep their faces muffled and as such it can safely be said that during investigation the accused persons were shown to the witnesses and that they were justified in the refusal to participate in Test Identification Proceedings.

On the point of identity of accused Ashok, the contention is that except complainant and PW Prince Gupta, no witness from the public identified him as one of the assailants.

It has been contended that since accused Ashok was shown to the witness at PS ODRS, accused was justified in refusing to participate in Test Identification Proceedings and as such, no adverse inference can be drawn against him from his refusal. Learned counsel has referred to chief examination of PW4 Shashi Kant, wherein he stated that once he was called by police of PS ODRS in connection with identification of the accused and the accused was shown to him there. So the contention is that prosecution has failed to connect Ashok accused with present crime.

Learned Defence counsel has referred to statement of PW1 Udal Singh wherein he could not identify the accused persons and contended that prosecution has failed to establish identity of the culprits involved in commission of dacoity in train. On the other hand, Addl. PP has submitted that although initially the complainant did not specifically identify the accused persons as the accused involved in the commission of crime, but in the next breath, he emphatically stated that accused persons present in Court were also involved in the commission of crime. Therefore, the contention is that prosecution has fully established identity of the accused persons as culprits.

Another contention raised by learned defence counsel is that although according to PW4 Shashi Kant, all the accused persons present in Court were involved in crime but his statement is of no avail to prosecution because he did not specifically point out the role played by each accused to establish their identity as culprits.

On the other hand Ld. Addl. PP has submitted that since according to the witness, countrymade pistol was pointed towards him at the time of commission of crime, nothing more could be expected from the witness on the points of identity of the accused persons.

Learned defence counsel has referred to statements of PW8, 9 and 10 who have not supported the case of the prosecution on the point of identity of the accused persons, which creates doubt in the prosecution version.

On the other hand, Ld. Addl. PP has submitted that statement of PW Bimla Devi cannot be thrown away in its entirety and accused cannot be allowed 12 to take advantage on the point of identity as the witness explained that she was not wearing spectacles at the time of incident and as such she could not identify the culprits.

So far as Rohit accused is concerned, the contention raised by learned defence counsel is that nothing incriminating was recovered from him. Further none of the prosecution witnesses identified him as one of the culprits involved in commission of dacoity.

On the other hand, Ld. Addl. PP has referred to statements of Udal Singh and Anil Kumar, who identified the accused as culprits involved in commission of crime.

Learned defence counsel has submitted that according to PW1 Udal Singh, it is Sanjay accused who was equipped with fire arm at the time of commission of crime in train but by stating so he contradicted the prosecution version, which is to the effect that a toy pistol was recovered at the instance of "Sandeep" accused from the near Swantantar Nagar.

Learned Addl. PP has referred to the statement of PW Ashutosh Tiwari, who specifically named Sandeep accused as one of the culprits who was armed with fire arm at the time of commission of crime and argued that there is no merit in the contention of learned defence counsel that prosecution has failed to prove the identity of the Sandeep accused as one of the culprits.

Learned defence counsel for Mehfooz accused has referred to the statement of PW14 Hemvardhan wherein he stated in his chief examination that he pointed out towards Mehfooz accused and identified him as one of the 13 robbers but no reliance can be placed by his testimony on the point of identification as he is stated to have seen and identified the accused who was present at PS Subzi Mandi, on 05.10.2009.

Learned counsel has referred to prosecution version which is not to the effect that Mehfooz was present at the PS Subzi Mandi on 05.10.2009 as he was actually arrested on 20.11.2009. Learned defence counsel has also submitted that witness PW14 identified Mehfooz accused at the time he was produced in Court for the purpose of remand. Then reference has been made to the cross examination of PW14 wherein he denied to have met police after 05.10.2009.

Learned defence counsel has submitted that when test identification of the accused was yet to be arranged, accused being unmuffled, there was possibility of PW Hemvardhan having seen Mehfooz at the police station and as such, no reliance can be placed on the identification of Mehfooz accused by PW Hemvardhan in court during trial. In this regard, learned defence counsel has referred to decision in Mohanlal Gangaram Gehani V. State of Maharashtra, AIR 1982 SC 839.

On the other hand, learned Addl. PP has submitted that PW14 Hemwardhan was robbed by Mehfooz accused while he was travelling in train and while appearing in Court he supported the prosecution version by pointing out towards Mehfooz accused and stated that he was the person who robbed him of his mobile phone N72. Therefore, the contention is that even if the witness stated in his cross examination to have met any police officer after 05.10.2009, same does not come to the help of the accused so far his identity is concerned. 14

As regards deposition by the witness in his cross examination that Mehfooz accused was present at PS Subzi Mandi on 05.10.2009, learned Addl. PP has submitted that while stating so he was actually referring to other accused persons Sandeep, Parveen and Ashok who were in custody of police on that date and this fact also does not come to help of the accused or create any doubt in the version of the prosecution on the point of identity of Mehfooz accused.

Learned defence counsel has further submitted that nothing incriminating was recovered from or at the instance of Mehfooz accused and that therein no other incriminating material against Mehfooz accused.

On the other hand, learned Addl. PP has referred to the statement of PW 21 Anil Kumar Jha, one of the passengers travelling in the train, who stated that all the accused persons were involved in commission of the crime in the general compartment of the train.

Reference has also been made to statement of PW1 Udhal Singh who clearly stated that there was no doubt that the accused persons present in Court were also involved in the occurrence and that he stated so specifically naming Sanjay accused who was armed with fire arm at the time of commission of crime.

But on the other hand while referring to the cross examination of PW1 Udhal Singh, learned defence counsel has submitted that no reliance can be placed on his statement in view of what he stated in cross examination that some of the culprits were having their faces muffled faces at the time of commission of crime. The contention is that when according to the witness some of the 15 culprits were having their faces muffled, how could he identify any of the accused.

Discussion

10. As noticed above, prosecution version is that occurrence took place in moving train - "Himalayan Queen" at about 9.30 p.m. near Railway Station Holambi Kalan Information that first reached PP Subzi Mandi at 10 p.m. was to the effect that some "bad elements" were committing robbery in Himalayan Queen train, in between Narela and Holambi Kalan railway stations. This information was received from PCR. It stands so recorded in DD No.20 (PP) dt. 27.02.09 Ex.PW19/A. Another entry i.e. DD no.21 Ex.PW19/G was recorded at PP Subzi Mandi at 10.10 p.m. on receipt of railway memo from Assistant Station Master, Subzi Mandi railway station about commission of robbery in train no.4096. The Assistant Station Master also asked the police to attend immediately and arrange for lodging of FIR.

On receipt of above mentioned DD no.20 (Ex.PW19/A), ASI Rameshwar Dass was apprised of it through Ct. Vikas and also telephonically. DD no.21 Ex.PW19/G was also dispatched to ASI Rameshwar Dass through Ct. Om Parkash.

According to PW22 ASI Rameshwar Dass, on 27.09.09, he received DD no.20(PP) and thereupon, accompanied by Ct. Vikas Kumar, reached platform no.2 of Subzi Mandi railway station where Himalayan Queen train was found present.

PW19 Ct. Vikas Kumar has supported the prosecution version by stating that when Duty Officer handed over to him copy of DD no.20 Ex.PW19/A, he delivered the same to ASI Rameshwar Dass and then both of them reached platform no.2 of Subzi Mandi railway station where Himalayan Queen train was present.

It is also in the statement of PW22 ASI Rameshwar Dass that on reaching platform no.2 of Subzi Mandi railway station, they found many persons present inside and outside the compartment adjoining the coach of the guard and that Shashi Kant made statement Ex.PW1/A before him.

Even according to PW19 Ct. Vikas Kumar, there was crowd of people in front of the coaches of the train and that ASI Rameshwar Dass recorded statement of one of them.

Further according to PW22 ASI Rameshwar Dass, he appended endorsement Ex.PW22/A to the statement Ex.PW4/A made by Shashikant and and sent the rukka to PS ODRS for getting the case registered. PW19 Ct. Vikas has supported this statement by stating that IO prepared rukka and handed over to him and on its basis case got registered. HC further deposed to have returned to platform no.2 of Subzi Mandi railway station and delivered to ASI Rameshwar Dass a copy of the FIR.

About recording of FIR, prosecution has also examined PW5. According to PW5, on 27.02.09, while serving as Duty Officer at PS ODRS, he received rukka sent by ASI Rameshwar Dass, at about 12.00 a.m. through Ct. Vikas and on its basis got recorded on computer FIR Ex.PW5/A. This version finds 17 support from documentary evidence in the form of statement Ex.PW4/A made by Shashi Kant with endorsement Ex.PW22/A appended thereto by ASI Rameshwar Dass, FIR Ex.PW5/A recorded at 0010 hrs, endorsement Ex.PW5/B in the margin of the rukka about recording of FIR no.132/09 and DD Ex.PW3/A in this regard.

PW4 Shashi Kant Complainant

11. While appearing as PW4, Shashi Kant stated the manner in which occurrence took place in the general coach of Himalayan Queen train on 27.09.09. He further proved his statement Ex.PW4/A made before the police. In his cross examination, witness stated to have made statement before the police, at about 9.30 p.m. at PS Subzi Mandi, where police was already present, after the train reached Subzi Mandi railway station. He clearly stated in his cross examination that police was already found present at the railway station. He explained that some enquiry and some writing work was done at the platform. He also explained that Ex.PW4/A was not recorded at the platform and that his statement was recorded after enquiry was made from 1012 co passengers. The witness gave the time of his arrival at PP Subzi Mandi at 9.40 p.m. He went on to state that 23 passengers including Udhal Singh, Smt. Bimla were also accompanying him at the time enquiry was made in a room at PP Subzi Mandi, by the Subzi Mandi and staff. According to the witness, he was relieved from Police Post at 10.45 p.m. Similarly other passengers also left the police post at about same time. According to the witness, police started doing work at 9.40 p.m. and continued for about half an hour. Statements of Udhal 18 Singh and Bimla were also recorded by the police, as further stated by the witness.

From the above evidence, it stands established that FIR Ex.PW5/A was recorded at about 0010 hours on 28.09.09 on the basis of rukka dispatched from PP Subzi Mandi by ASI Rameshwar Dass after he appended endorsement to statement Ex.PW4/A of Shashi Kant, which was recorded at about 9.40 p.m. Promptness in recording FIR is a pointer to genuineness of version narrated by PW4 in Ex.PW5/A and rules out possibility of concoction or deliberates.

The version which was made available by Shashi Kant to the police in his statement Ex.PW4/A contains the manner in which the occurrence took place, identifying marks of the perpetrators, the manner in which the assailants made good their escape and the property which was robbed from the complainant and copassengers namely Anil Kumar and Bimla. Name of Udhal Singh also finds mention in the statement as one of the copassengers who pulled the chain while the crime was being committed.

While appearing in court as PW4 Shashi Kant again narrated the manner in which occurrence took place. He stated that on 27.09.09 at 7.09 p.m. he boarded the general coach of Himalayan Queen train form Kurukshetra for Delhi. Further, according to PW4, at 9.00 p.m. train reached Sonepat railway station. There two policemen, who were present in the coach got down at the railway station. When the train started moving 67 boys entered the coach, from the opposite site of the platform, scattered in the coach, and then started moving around.

Further according to PW4, when train reached Narela, 67 boys started extorting money from passengers by threatening them showing revolver. He was robbed of Rs.8000/ at the point of country made pistol. He also stated that his copassengers, including Udhal Singh and Bimla, sitting by its side, were also robbed. About Udhal Singh, the witness further stated that he pulled the chain and stopped the train. So the train stopped at Holambi Kalan railway station, where the boys got down on the opposite direction of the platform and ran away towards fields. It is also in the statements of PW4 that when the train was taken to Subzi Mandi railway station, the police recorded his statement Ex.PW4/A. In his cross examination, the witness clearly stated that coach in which he was travelling was at the end, near coach of the guard. In this regard his statement finds support from the statement of PW22 ASI Rameshwar Dass, who stated that he found crowd of people present inside and outside the compartment adjoining the coach of the guard. According to PW4, when he was robbed. None of the passengers lodged any protest. Robbery was committed half an hour after the assailants boarded the train. Robbery took place for about 15 minutes.

On the point of identity, PW4 stated in court that robbers were 67 in number who started extorting money, mobile phone and other belongings from the passengers which was robbed by those boys at the point of a country made pistol. The other passengers whom the said robbers robbed were Udal Singh and Bimla Devi. On seeing the accused persons, present in court one by one, he 20 stated that all of them were involved in the commission of the train robbery.

Learned counsel has contended that according to PW4 all the accused persons present in court were involved in the crime, but this statement is of no avail to the prosecution as he did not specifically point out that as to what role was played by each of them, so as to establish their identity.

On the other hand, learned Addl. P.P. has submitted that since, according to witness, country made pistol was aimed at him at the time of commission of crime, nothing more could be expected from this witness on the point of identity of the accused person.

In his cross examination on behalf of accused Rakesh, the witness stated that this accused (Rakesh) did not personally rob him of money or threaten him, but he denied that accused Rakesh was not involved in the incident of robbery. He further denied that he had identified Rakesh accused at the pointing out of IO.

It is in the cross examination of this witness, (on behalf of Rakesh accused), that he (witness) was called once by the police to PS ODRS in connection with identification of accused. The witness volunteered that he was taken to lock up where four accused were kept and he told the police on seeing them that they were involved in the commission of offence of train robbery. The witness admitted that four accused were present at the police station, but he denied that Police had told him, while pointing out each accused that they were the persons involved in the robbery. It is significant to note that the witness was however not further cross examined as to on which date he so visited the lock up 21 and which of the four accused were found present at the lock up, whom he identified there. Rakesh accused was arrested on 29.09.09 itself, as per record these three accused refused to participate in Test Identification Proceedings when produced before Learned Metropolitan Magistrate. In absence of name of any of the four accused persons at the lock and the day when he so visited police station it cannot be said as to identification of which of the four accused he so stated in his cross examination. Therefore, there is no merit in the contention raised by learned Defence counsel that no reliance can be placed on statement of PW4 on the point of identity of accused.

Statement of PW1 Udhal Singh Victim

12. Prosecution has examined PW1 Udhal Singh, another eye witness to the occurrence. According to this witness, he boarded Himalayan Queen train at about 4.40 p.m. from Kalka for Delhi. When the train reached Sonepat railway station, police officials present in the compartment went to other compartment. By stating so, PW1 has supported the statement of PW4 Shashi Kant.

According to PW1, 1012 persons entered the compartment after the police officials went to other compartment. These 1012 persons were armed with fire arms and knives. As noticed above, even according to PW4 Shashikant, persons involved in commission of crime were armed with knives and revolver.

Further, according to PW1 Udhal Singh, aforesaid 1012 persons started snatching money and other articles including jewellery from passengers, while threatening them with weapons. He was present in the middle of the 22 compartment. He and other passengers made a call dialing no.100. Further according to him, he and other passengers pulled the chain and the train having slowed down near Holambi railway station, all those persons got down from the train and fled away. This version lends corroboration to the statement of PW4 Shashi Kant.

PW4 Shashi Kant no where stated that Udhal Singh was also robbed. Even according to PW1, he was not robbed of anything. So both the witnesses have made statements in line with each other regarding the manner in which occurrence took place.

Learned defence counsel has pointed out that no traveling ticket of PW1 Udal Singh was seized by the police and as such it is difficult to say that he was present on the given date, time and place.

In his cross examination the witness stated that police did not collect his ticket from him. He explained that he had offered and showed his railway ticket to the police, but they did not collect the same on the ground that tickets of passengers travelling in general compartment do not carry names of passengers and that same would be of no use. The explanation is satisfactory. The witness categorically stated that his presence in the train could be verified from the call details which he made from his mobile phone dialing no.100, but his statement was not subjected to cross examination in this regard or rebutted by leading evidence contrary to it.

In his cross examination PW4 stated that police recorded his statement at Subzi Mandi railway station, after the train reached there at about 11.00 p.m. He 23 remained at PP Subzi Mandi till about 4.00 a.m. He has supported the prosecution version by stating that besides recording his statement, police also recorded statement of Shashi Kant. About situation of general compartment in which he was travelling, the witness stated that he was towards the tail of the train, near guard's compartment.

It is in his cross examination that the robbers had boarded the left side middle gate of the general compartment while he was in its middle and occupying corner's seat i.e. touching the passage. So this witness had the opportunity to witness the manner in which the occurrence took place after the robbers boarded the compartment besides others. It is true that in his cross examination, the witness denied to have seen razor with anyone of robbers but same does not adversely affect the case of prosecution regarding use of razors. According to the witness, one of the robbers was armed with fire arm while 34 others were holding knife and remaining were snatching money and articles from the passengers. He clearly stated that passengers sitting in front of him were facing the place, where robbery was going on. Then, he turned back and witnessed that one of the robbers was standing in the passage holding firearm while few others were holding knives and robbing some others articles from the passengers who were raising alarm. It was thereafter that he and some of the passengers sitting with him got up and moved towards rear side of the compartment and pulled the chain to stop it.

It is true that in his cross examination PW1 stated that train had halted at Holambi Kalan due to chain pulling. The witness volunteered that it was night 24 time and he did not get time to go to the police to lodge complaint. So the witness has furnished reasonable explanation as to why nobody could be informed at Holabi Kalan, where the train had a halt. It is also in his statement that after the train halted because of pulling of chain the guard came and enquired about pulling of the chain. At that time, they told the guard that robbery had taken place. The guards then informed that the police could be informed at the next railway station.

There is nothing in the statement of PW1 to disbelieve the version regarding the manner in which the occurrence took place in the moving train and the role played by him.

As regards identity of the accused, PW1 stated that the accused persons were 1012 in number, armed with fire arms and knives and that they snatched money and other items from the passengers at the point of weapon. He then specifically deposed that one of the boys who robbed the passengers was having a fire arm and a cut on his face. He then looked at the accused persons, present in court, and immediately pointed out at accused Sanjay, who was having fire arm. The witness identified Sanjay confidently about his involvement in the occurrence. In his cross examination, he denied his suggestion that he was deposing falsely on the point of identity of accused Sanjay or that he had seen him for the first time in court. The witness volunteered that he had seen Sanjay first time in the train at the time of occurrence.

As regards other robbers PW1 stated that he could not specifically identify them as some of them had covered their faces with handkerchief. However, in 25 the next breath, he expressed no doubt that other six accused present in court were also involved in the occurrence. When he so stated that he had no doubt about the other six accused persons present in court regarding their involvement in the occurrence, it can safely be said that he was sure of their presence and their participation in the commission of the crime, in Himalayan Queen Express on 27.09.09. There is nothing in his statement that he was having enmity against any of the accused so as to falsely implicate them or that he was interested in the prosecution on any account. If others had their faces muffled his version about present accused cannot be doubted.

Although it is case of the prosecution that a toy pistol was recovered from near Swatantar Nagar from the possession of Sandeep accused, the same does not create doubt in the version narrated by PW1 Udal Singh. There is nothing on record to suggest that PW1 Udal Singh was referring to any toy pistol when he deposed in court identifying Sanjay as one of the accused. Simply from recovery of a toy pistol from Sandeep on the night intervening 28/29.09.09, the version narrated by PW1 Udal Singh that it is "Sanjay" who was having a fire arm cannot be thrown away.

Presence of PW3 Ashutosh Trivedi - Victim

13. According to PW3, on the night intervening 28/29.09.09, he and his friends Hemvardhan and Prince Gupta were returning together from Kalka by Himalayan Queen Express. They were travelling in general compartment. At about 8.00 p.m., the train reached Sonepat. Some passengers got in and others got down.

Further according to the witness, at about 9.00 p.m., when the train reached in between Narela railway station and Holambi Kalan railway station, about 10 persons spread all over the general compartment and started looting the passengers. One of them was armed with a gun and some were armed with razor type knives. One of the neighbours placed razor on the neck of his friend Hemvardhan and took over Samsung S3310 mobile phone (belonging to this witness) from Hemvardhan. The said robber also took from Hemvardhan his own mobile phone. One of the robbers snatched gold chain of one of the co passengers sitting by the side of this witness.

PW3 further deposed that he and other passengers started raising alarm. Someone pulled the chain, the train slowed down and the robbers got down and then fled away. Further according to the witness, he and his two friends were travelling on common ticket Ex.PW3/A which they handed over to the police.

On the point of identity of accused, the witness stated that about 10 persons spread over the compartment, one of them was armed with a gun while some was carrying razor type knives. The witness then identified Sandeep accused as the robber who was carrying gun.

As regards the person who had put razor on the neck of his friend Hemvardhan and removed their Samsung mobile phone, the witness expressed his inability to identify him. Had the witness intended to falsely depose, he could point out towards anyone from of remaining six accused present in court and stated that he had robbed him and his friend of mobile phones, but the witness did not do like this. This conduct of the witness makes his testimony 27 more truthful so far as identity of the accused Sandeep is concerned.

As regards his mobile phone snatched form Hemvardhan, the witness explained that the mobile phone was in the name of Raj Pal Kasana, his landlord. He also identified mobile phone Ex.P1 when produced during trial, stating that it was snatched during the occurrence.

PW11 Shishir Malhotra, Nodal Officer from Aircel Ltd.

14. He has proved from record that mobile phone connection no.9716871166 was in the name of Rajpal Singh Kasana s/o Kamal Singh Kasana. He has also proved CDR pertaining to this mobile phone connection from 25.09.09 to 30.10.09. Statements of the witness has gone unchallenged.

So statement of PW10 further lends corroboration to the statement of PW Hemvardhan that the mobile phone which was of Rajpal Singh Kasana robbed in the train.

PW8 Smt. Bimla Devi - Victim

15. According to PW8 on 27.09.09, she was travelling in general compartment of Himalayan Queen Express, while sleeping on upper berth. At about 8/8.50 p.m., when someone told her that train had reached Sonepat, she descended and sat on the lower berth. Further according to the witness, when she was looking out of window, someone came from behind and took away her gold chain from her neck and a small leather bag which she was holding. The bag contains currency notes worth Rs.10,000/.

In her cross examination, this witness was not cross questioned by or on behalf of any accused regarding her version that she was travelling in general 28 compartment of the said train and that some one removed her chain from her neck and bag containing Rs.10,000/ from her. She was also not subjected to any cross examination on the version that at platform of Subzi Mandi railway station, people were crying and 1012 persons have been robbed of.

On the point of identity of the accused, this witness stated that she could not see the culprits as she was seeing outside. She clearly stated that she could not see as to how many boys had entered the compartment or left the compartment.

Since this witness was earlier sleeping on the upper berth and after having descended sat on the lower berth, this court believes her testimony that she was not in a position to see any of the robbers, particularly when she was seeing outside the train, through the window. Even though she has not identified any of the accused persons as the robbers, but the fact remains that her presence on the given date, time and place and robbery of her gold chain and bag containing Rs. 10,000/ stands established.

Presence of PW9 Prince Gupta - another victim

16. This witness, while appearing as PW9, deposed that he was travelling in general compartment of Himalayan Queen Express from Kalka to New Delhi. At 9.15/9.30 p.m., when the train reached near Narela railway station, 67 persons started committing robbery. Those persons were armed with razors and knives. The witness stated that one of them put razor against his neck and took his mobile phone make Nokia 1650 having connection no.9891925492. He also deposed that 30/40 passengers were also robbed at the point of weapons. Then 29 according to the witness, some one pulled chain and the train ultimately came to a halt (Subzi Mandi railway station). During trial, the witness identified mobile phone make Nokia having IMEI No.3593370220096 as the one belonging to him and that it was robbed from him on the aforesaid date. This mobile phone was exhibited as Ex.PX.

In his cross examination, the witness stated that his friends were also travelling in the first cabin of the same compartment. In that cabin, according to the witness, 34 persons committed robbery. He also deposed that mobile phone of his two friends was also robbed in has presence.

He also deposed about handing over of travelling ticket to the police. The witness denied that he was not travelling in the said train at the time of robbery.

On the point of identity, this witness pointed out towards accused Ashok present amongst the accused persons produced in court saying that he had robbed him of his mobile phone. It was suggested to the witness in his cross examination that he was having his back towards the compartment. The witness denied this suggestion. He further denied that Investigating Officer had suggested him that he was to name the boys as accused.

Learned defence counsel referred to cross examination of PW9 wherein he stated to have identified on 05.10.09 only one of the boys present at PS Subzi Mandi, as the accused, and then referred to the prosecution, which is not to the effect that the witness was ever asked to identify any of the accused at PS Subzi Mani on 05.10.09. The contention is that when, according to the witness, he visited PS Subzi Mandi on 05.10.09 and identified one of the boys, no reliance 30 could be placed on his testimony regarding identification of Ashok S/o Dharam Pal, accused.

A perusal of Trial Court would reveal that Sandeep, Ashok and Parveen were arrested on 28.09.09; Rakesh, accused was arrested on 22.10.09 (when produced in court on production warrants); Sanjay, accused was arrested on 20.12.09 (when produced in court on production warrants); Rohit, accused was arrested on 14.01.10 (when produced in court on production warrants); Mehfooz, accused was arrested on 20.11.09 (when produced in court on production warrants). So it becomes clear that only Sandeep, Ashok and Parveen, accused were arrested much prior to 05.10.09.

Further as per record, these three accused were produced in court on 29.09.09 and remanded to police custody till 05.10.09, and from 05.10.09, they were remanded to judicial custody upto 15.10.09.

For the purpose of order of Test Identification Proceedings, Sandeep, Ashok and Parveen were produced before Metropolitan Magistrate on 29.09.09. At that time, no doubt, all of them had muffled faces, as is available in the statement of PW16 the concerned Metropolitan Magistrate, who dealt with application Ex.PW16/A for the purpose of Test Identification Proceedings. Therefore, even if PW9 visited police station afterwards i.e. on 05.10.09 same does not come to help of accused or adversely affects case of prosecution.

Presence of PW14 Hemvardhan - Victim

17. PW14 has also deposed that he and his friends Prince Gupta and Ashutosh were travelling in the general compartment of Himalayan Queen. At about 9.00 31 p.m. train reached railway station Sonepat. Further, according to the witness when the train reached near Narela railway station, 67 persons equipped with knives and fire arms started robbing the passengers travelling in the train. One of the assailants aimed knife at him and robbed him of his mobile phone make N72.

Other passengers travelling in the compartment were also robbed. He further deposed that his friend Prince Gupta was also robbed of his mobile phone, which was having his sim (of this witness).

The witness proved travelling ticket Ex.PW3/A vide which he and his friends were travelling. This establishes presence of pW9, PW14 and PW3 in the general coach of the given date. In his cross examination, the witness stated that he was travelling in the first cabin of the compartment towards engine side. By stating so he has supported the statement of PW9 Prince Gupta.

PW14 also deposed in line with statement of PW9 that in their cabin three persons committed robbery and those persons went ahead i.e. towards other cabins in the same compartment. As regards other robbers, he stated to have seen them while they alighted from train, hurling abuses at them. He explained that the assailants alighted from the two doors of the compartment i.e. one near the first cabin and other at the other end. It is available in the cross examination of the witness that his purse containing money was also robbed but it was returned to him on his request. Robbery continued for about 1015 minutes.

It is also in the cross examination of PW14 Hemvardhan that before arrival of the train at railway station Subzi Mandi, train had come to halt but he 32 displayed ignorance about the place where the train so halted.

In the given situation, certainly the witness could not tell the place where the train had halted and his testimony cannot be doubted simply because of ignorance of this fact.

According to PW14, train reached railway station Subzi Mandi at about 10.00 p.m. Police reached railway station Subzi Mandi and he and other 14 passengers submitted common complaint to the police. The witness explained that some passengers might have left when they signed the common complaint. Although no common complaint has been proved, its nonproduction does not make his presence on the given date time and place doubtful.

PW18 Sh. Israr Babu, Nodal Officer from Vodafon Mobile Service Ltd. while appearing as witness proved Ex.PW18/A issued regarding mobile phone connection no.9899467639 in the name of Hemvardhan. He also proved certified copy of CDR Ex.PW18/B of this mobile phone connection pertaining to period from 25.09.09 to 30.09.09. Statement of PW18 has gone unchallenged. It lends support to the statement of PW14.

Prosecution has also examined PW17 Pankaj Kumar, Authorized Representative, Idea Cellular Ltd., to prove issuance of connection no. 9891925491 in the name of Hemvardhan. The relevant documents submitted in proof of identity are Ex.PW17/B. Statement of PW17 has also gone unchallenged.

Testimony of PW17 & PW18 lends corroboration to the version of prosecution and the statement of PW14 Hemvardhan that on the given date, time 33 and place, he was travelling in the aforesaid train and he was robbed of the said mobile phones which belonged to him.

On the point of identity of accused, PW14 Hemvardhan stated that the robbers were 6/7 in numbers. Then he identified Mehfooz, accused present in court stating that he is the person who had robbed him of his mobile phone. According to him also, robbery took place for about 15 minutes. Three persons committed robbery in the cabin in which he was present. He could not see other robbers involved in commission of the robbery.

In his cross examination, the witness admitted to have seen Mehfooz accused who was present at PS Subzi Mandi on 05.10.09. The witness volunteered that he had himself pointed out towards the boys present amongst the boys present there.

As noticed above, Mehfooz, accused was arrested on 20.11.09. He was so arrested on the basis of production warrants issued on the basis of prayer made by the police vide application dt.12.11.09. In the application dt.12.11.09, it finds mention that accused was in custody in case FIR no.57/09 of PS GRP Sonepat and confined at District Jail Sonepat, Haryana. So the fact remains that accused Mehfooz was not in the custody of Delhi Police as on 05.10.09. It is significant to note that when Mehfooz accused was arrested, consequent upon his production in court on production warrants on 20.11.09, he was so produced with muffled face as finds recorded on the application Ex.PW13/B filed by the IO for holding of his Test Identification Proceedings. It was only after his refusal to participate in Test Identification Proceedings that vide order dt. 34 20.11.09 he was remanded to police custody. When PW14 stated to have seen boys on 05.10.09 while they were present at PS Subzi Mandi, he cannot be said to have referred to Mehfooz. It appears that memory of PW14 Hemvardhan did not help him on the point of the presence of the boys who were present at PS Subzi Mandi on 05.10.09. There is nothing in the statement of PW14 that he was having any enmity against Mehfooz, accused, for naming him as one of the robbers at the time he was robbed him of his mobile phone, having regard to the fact that the witness was robbed in the cabin at the point of knife and he specifically pointed out towards Mehfooz accused as he could certainly point out in the given situation. So, this court does not find any ground to disbelieve this version regarding identity of the accused Mehfooz as the robbers simply because this witness visited PS Subzi Mandi on 05.10.09 by which date accused Mehfooz had not been arrested.

PW21 is Anil Kumar Jha - Victim

18. PW21 is Anil Kumar Jha who boarded the aforesaid train from Kalka to Nizamuddin Railway Station. He too was travelling in general compartment. According to the witness, at 9/9.15 p.m., when train stopped at Sonepat, 78 persons boarded the general compartment. When the train crossed Narela Railway Station, one boy having cut mark on his nose and armed with revolver extended threats to him and other passengers. 56 companions of the boy were armed with different types of weapons like knives and razors. Further according to the witness, one of those persons placed a razor against him and removed his mobile phone of Sony Ericcson connection no.9805871907 and cash worth Rs. 35 2000/. Those people then pulled chain and alighted from the compartment when the train reached Holambi.

On reaching Subzi Mandi railway station, they contacted the police. Further according to the witness, he produced before the police his travelling ticket Ex.PW19/E. It may be mentioned here that PW21 was not subjected to any cross examination regarding his version that he was travelling in the general compartment of the train on the aforesaid date, time and place. Travelling ticket Ex.PW19/E lends corroboration to his version regarding his presence in the train at the given time.

Prosecution has examined PW10 Tarun Khurana, Nodal Officer,Bharti Airtel Ltd., to prove mobile phone connection no.9805871907, issued in the name of "Anil Kumar Jha". The witness has also proved customer application form Ex.PW10/A and CDR Ex.PW10/E with location chart Ex.PW10/F. Statement of PW10 has gone unchallenged.

Testimony of PW10 further lends corroboration to the version of prosecution and the statement of Anil Kumar Jha that on the given date, time and place, he was travelling in the aforesaid train and he was robbed of the said mobile phone which belonged to him.

On the point of identity, as noticed above PW21 Anil Kumar Jha stated that 78 persons boarded the general compartment in which he was present and one of them having a cut mark on his nose, was armed with a revolver and he extended threats to the passengers including him (the witness). He then identified "Sandeep", accused present in court who was armed with a revolver 36 on the aforesaid day. He also identified "Rohit", accused as the person who placed razor against him at the time of commission of robbery of mobile phone and currency notes worth Rs.2000/ from him.

It may be mentioned here that the witness also stated that "all other accused persons" present in court were also involved in commission of the crime on the aforesaid day.

So far as Rohit accused is concerned, the contention raised by learned defence counsel is that nothing incriminating was recovered from him and that he was not identified by any of the witnesses as one of the culprit in commission of the dacoity. On the other hand, learned Addl. P.P. has submitted that not only PW Anil Kumar Jha, PW Udal Singh also identified Rohit accused and others as culprit involved in the robbery.

Learned counsel appearing for accused Rakesh has referred to the cross examination of this witness wherein he stated that except Sandeep and Rohit, he could not specifically say if the other accused accused present in court were accompanying them on the day of commission of crime. The contention is that from this statement of PW21 Anil Kumar Jha, it can safely be said that he didnot identify anyone except Sandeep and Rohit, accused.

It is significant to note that statement of PW21 Anil Kumar Jha has not been subjected to any cross examination on behalf of accused persons other than Rakesh. This goes to show that they did not challenge the testimony of Anil Kumar Jha, on the point of their identity as robbers and presence of the witness in the train at the time of commission of the crime.

However when PW21 stated that he could not specifically say if the accused persons other than Sandeep and Rohit were accompanying these two accused at the time of commission of crime, it can safely be said that this witness was not sure about the involvement of other five accused.

PW24 Ram Bisht

19. This witness was one of the passengers travelling in Himalayan Queen train. According to the witness, on 27.09.09, at about 3.00 p.m., he boarded the train from Kalka to Delhi. When the train crossed Sonepat, near Narela railway station, 56 persons boarded the compartment in which he was travelling. Those 56 persons were carrying weapons including knives and country made pistol. They were in the age group of 2025 years, as further stated by witness. According to the witness, he was robbed of gold chain, gold ring and currency notes worth Rs.6000/.

It is also in the statement of PW24 Ram Bisht that after having snatched valuables from another passenger who was sitting by his side, the 56 boys alighted from the compartment, as the train was moving at a slow speed. According to the witness, when the train reached the police station, he narrated the manner in which occurrence took place.

In his cross examination, the witness was not subjected to any question regarding the version narrated by him about his presence in the train on the given date, time and place and commission of robbery by 56 boys who were armed with knives and country made pistol and that he also narrated the occurrence to the police.

On the point of identification, this witness stated as noticed above that robbers were 56 in number and carrying knives and country made pistol. He further stated that they were in the age group of 2022 years. But on seeing the accused persons, present in court, the witness clearly stated that none of them was present amongst those 56 persons who committed the crime in the moving train on that day. The witness was put leading questions by learned Addl. P.P., on the point of identity of accused after seeking permission from the court. Even then the witness could not admit or deny if accused persons present in court were amongst 56 persons, who committed the crime on the aforesaid day.

On the point of Test Identification Parade in Mohanlal Gangaram Gehani's case, Hon'ble Court observed as under :

"Where the culprits had not been known to the identifying witness from before and no test identification parade had been held to test his power of identification and the culprit was also shown by the police to the identifying witness before he identified the culprits in the court, his evidence would become absolutely valueless on the question of identification."

Herein, the occurrence took place for about 15 minutes and the accused - robbers spread in the entire general compartment so as to commit robbery. It is not on record that there was no light in the general compartment so as to suggest that the passengers could not see or identify the robbers. As discussed above, the witnesses from the public - victims, who verified identity of the accused persons during trial, successfully stood the test of cross examination. None for the accused had alleged any enmity with any of these PWs - victims for deposing falsely and identifying them in court for their false implication.

In the given facts and circumstances, decision in Mohanlal Gangaram's 39 case does not come to the aid of accused.

Arrest of accused and recoveries from accused Sandeep, Ashok and Parveen

20. It is case of prosecution that accused Sandeep, Ashok and Parveen were arrested from near Swatantar Nagar, by the police party headed by SI Rajinder Dabas and from their possession, one toy pistol and two razors respectively were recovered.

According to PW20 SI Rajinder Dabas, on 28.09.09 at about 6.50 p.m., he received secret information that persons involved in commission of train dacoity in Himalayan Queen Express would assemble at Narela railway station to commit dacoity in Uchahaar Express. Further, according to PW20, on receipt of secret information, he accompanied by other members including secret informer, boarded a train from railway station Subzi Mandi and reached Narela railway station. At Narela railway station, he asked 45 persons to join the party, but none came forward. Then, all of them started heading towards Bakner railway level crossing. When they covered some distance from Narela railway station, the secret informer pointed out towards some persons present in between railway track and Swatantar Nagar. The secret informer then left the party.

It is also in the statement of PW20 SI Rajinder Dabas that he directed other members of the party HC Ram Kumar and ASI Rameshwar Dass to go towards Bakner railway level crossing to go to above referred to persons as pointed out by secret informer. HC Ram Kumar and ASI Rameshwar Dass then went towards Bakner railway level crossing.

According to PW20, he and Ct. Vikas also started proceeding towards the place pointed out by the secret informer. On seeing them, three boys namely Sandeep, Ashok and Parveen, present at the aforesaid place, tried to escape, but they were apprehended. The witness then identified all the accused persons present in court.

PW19 Ct. Vikas Kumar

21. Similarly, PW19 Ct. Vikas Kumar a member of the party deposed about receipt of secret information while he was in the company of Rajinder Dabas. Then he deposed to have reached Narela railway station at about 7.40 p.m. in the company of ASI Rameshwar Dass, ASI Rajender Dabas and a Head Constable. The secret informer was also with them. He then deposed the manner in which accused Sandeep, Ashok and Parveen were apprehended by them from in between Narela railway station and Bakner railway level crossing.

PW22 ASI Rameshwar Dass

22. Then there is statement of PW22 ASI Rameshwar Dass regarding the manner in which Sandeep, Ashok and Parveen, accused were apprehended from near Swatantar Nagar, by the party headed by SI Rajinder Dabas, at the pointing out of the secret informer.

PW18 HC Ram Kumar

23. Prosecution has also examined PW18 HC Ram Kumar another witness to the arrest of Sandeep, Ashok and Parveen by SI Rajinder Dabas in his presence, at the pointing out of secret informer from the place in between Bakner railway level crossing and Narela railway station towards Swatantar Nagar. 41

All the aforesaid witnesses have also deposed about recovery of toy pistol from Sandeep and one razor each from Ashok and Sandeep.

Sketches of the toy pistol and the razors are Ex.PW12/A, Ex.PW12/B and Ex.PW/C. It is in the statements of these witnesses that these weapons were turned into parcels, sealed with the seal bearing impression 'RD' and seized vide memos Ex.PW12/D, Ex.PW12/E and Ex.PW/F. Arrest memos in respect of these three accused are Ex.PW12/G, Ex.PW12/H and Ex.PW/I and their personal search memos are Ex.PW12/J, Ex.PW12/K and Ex.PW/L. It has been contended on behalf of the accused that no witness from the public was associated by SI Rajender Dabas from Subzi Mandi railway station or on reaching Narela railway station, before the three accused were apprehended from near Swatantar Nagar and as such statements of police officials are liable to be discarded.

On the point of nonjoining of witnesses from public, SI Rajinder Dabas deposed in cross examination that passengers were present at Subzi Mandi railway station but he did not disclose them secret information so as to join them in the party. On reaching Narela railway station, he asked 45 passengers to join the party, but none of them came forward. He explained that these passengers had alighted from the train by which they had travelled from Subzi Mandi to Narela.

It is a matter of common knowledge that passengers seldom come forward to join police party because of their own itinerary. Therefore, even if no notice was issued by SI Rajender Dabas to any of the passengers who did not join the 42 party, no adverse inference can be drawn against the prosecution on the point of nonjoining of persons from the public.

In his cross examination, SI Rajender Dabas admitted to have not asked any railway employee or officer to join the party. The explanation is 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 in this regard is that the office of GRP was on the other side across the railway track. 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 when it was not suggested to the SubInspector in his cross examination that the office of GRP Narela was not situated across the railway track or that he was deposing falsely in this regard.

As regards nonjoining of witness from any shop, SI Rajinder Dabas displayed ignorance if any shop was situated outside Narela railway station. According to the SubInspector houses were there near the track in the area of Swatantar Nagar but those houses had their doors towards other side. Although it was suggested to the witness that doors of those house were towards the track, no cogent and convincing evidence has been brought on record by the defence to suggest that anyone could be called 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 43 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 no 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. A perusal of statements of prosecution witnesses, would reveal that their 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, non joining of any witness from the public at Narela Railway Station, after the recoveries and at the time writing work was done, does not adversely affect the case of prosecution.

According to PW12 Ct. Vikas Kumar they had started from Narela Railway Station towards Bakner railway level crossing at about 7.50 pm. Accused persons were apprehended at about 8 pm. Therefore nonjoining of witness from the public, in the given circumstances, at the given time, does not come to the aid of the accused.

Even otherwise, it is well settled that the absence of independent 44 corroboration at the most puts the Court of guard to scrutinize statements of police official with more care and caution.

Recoveries from C246, Shahbad Dair, Delhi

24. It is case of prosecution that Sandeep, Ashok and Parveen, accused were then brought to PS ODRS and lodged in the lock up. It was during interrogation that all the three made disclosure statements and then led to H.No.C246, J.J. Colony, Shahbad Dairy, Delhi.

According to PW20 SI Rajinder Dabas, on interrogation Sandeep, Ashok and Parveen, accused made disclosure statements Ex.PW12/M, Ex.PW12/N and Ex.PW12/O. These three accused then offered to get recovered stolen property pertaining to this case from the rooms under their tenancy at H.No.C246, J.J. Colony, Shahbad Dairy, Delhi.

Further, according to PW20 SI Rajinder Dabas, all the three accused then led to H.No.C246, J.J. Colony, Shahbad Dairy, Delhi. Ramesh Singh, landlord of the house found present there was joined in the investigation. Firstly, Ashok and Parveen led to the room under their tenancy, on the second floor of the house and opened it. Ashok, accused then took out one Nokia 1650 from under a pillow and produced the same. It was found that this phone pertained to Prince Gupta. Mobile phone was seized vide memo Ex.PW2/A. Further according to PW20 SI Rajinder Dabas, Sandeep accused opened the room under this tenancy. It was also on the second floor of the house. He took out a polythene containing mobile phones, one camera make Yashika, two chains of gold colour, one purse containing driving license and visiting cards of 45 Nagpur Freight Carriers and photocopy of documents of one Naresh Kumar. On checking, he found that mobile phone S3310 make Samsung was of PW Ashutosh Trivedi. It was separately seized vide memo Ex.PW2/C. The remaining case property was seized vide memo Ex.PW2/D. The witness stated that two gold chains were turned into parcel, seized and then sealed with seal bearing impression 'RD'. Thereafter, they returned to PS ODRS.

To same effect are statements of PW19 Ct. Vikas Kumar and PW22 ASI Rameshwar Dass.

PW20 correctly identified the case property i.e. camera, mobile phones, gold chain and belongings of Naresh Kumar got recovered by accused Sandeep make Sony Ericcson and mobile phone make Nokia recovered at the instance of accused Ashok and Parveen.

Prosecution has examined Ramesh, landlord of H.No.C246, Shahbad Dairy, as PW2. According to PW2, his house is a three storeyed house. He lives on the first floor. Further, according to the witness, he had given on rent its two rooms on the second floor to Sandeep, Ashok and Parveen; that Ashok and Parveen were sharing one room while Sandeep was occupying other room. Total monthly rent of the rooms was Rs.2500/. All of them had claimed before him to be members of the same family. As regards identity of accused Sandeep, Ashok and Parveen, the witness correctly identified these three accused present in court.

As regards recoveries on 29.09.09, the witness deposed about arrival of police at his house at about 4/5.00 a.m., when Ashok and Sandeep, were in the 46 custody of the police. Ashok and Sandeep accused accompanied by police then went to the rooms on the second floor. He also accompanied them. Further according to the witness, police recovered one mobile phone from the room occupied by Ashok and 56 mobile phones, a purse, camera, two gold chains from the room of accused Sandeep.

Further according to PW2, all the aforesaid items were seized vide memos Ex.PW2/A, Ex.PW2/B and Ex.PW2/C. Learned defence counsel for accused Parveen has referred to the evidence available on record and submitted that PW Ramesh Singh, the landlord has not stated that accused Parveen was accompanying Ashok and Sandeep at the time of their visit to the tenanted rooms. Further, it has been submitted that during investigation the IO did not join any witness from the public from the locality of Shahbad Dairy. Even local police of the concerned area was not informed. The contention is that nonjoining of the witness from the public further creates doubt in the version put forth by the police officials / officers about recoveries from C246, Shahbad Dairy.

Same argument has been advanced on behalf of Sandeep and Ashok accused.

Learned defence counsel has referred to the statement of PW20 SI Rajinder Dabas wherein he stated that key of the room under the tenancy of accused Ashok and Parveen was found lying under a brick in front of the said room and the key was removed by Sandeep accused. The contention is that the key having been kept under a brick in open place, exclusive knowledge thereof 47 cannot be attributed to Ashok accused, and as such no reliance can be placed on the prosecution version regarding recoveries from the said room.

As noticed above, PW2 Sh. Ramesh Singh has clearly stated about tenancy of two rooms of his house, under Sandeep, Ashok and Parveen. When he stated in his cross examination that no written rent agreement was executed between him and the three accused and no rent receipt was issued, that does not create doubt in his testimony about tenancy in respect of two rooms.

There is nothing in the statement of PW2 Ramesh Singh that he had any motive to depose against the accused persons or that he was interested in the prosecution.

In his statement U/s 313 Cr.P.C., Sandeep accused has admitted to have resided as a tenant at H.No. C246, Shahbad Dairy, under 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. 246, Shahbad Dairy, as tenants at any point of time. They have not led any evidence that they were residing somewhere else. Therefore, nonexecution of any rent agreement or issuance of any rent receipt does not adversely affect the case of prosecution.

According to PW2 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 in his cross examination, as regards execution of memos Ex.PW2/A, Ex.PW2/B, Ex.PW2/C and Ex.PW2/D, the witness stated that he had 48 attested the same at the police station, but it 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, one camera, two gold chains and purse etc. of Naresh 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, PW2 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 the accused so as to depose falsely against Ashok and Sandeep accused.

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 Shahbad Dairy 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 Shahbad Dairy 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 H.No.246, Shahbad Dairy, and about recoveries at the instance of Ashok and Sandeep accused.

It is true that departure entry is required to be recorded and proved on 49 record so as to prove departure of police party from the police station. In this case when SI Rajinder Dabas stated in his cross examination about recording of departure entry at PS ODRS while leaving for Shahbad Dairy. From the statements of the prosecution witnesses it stands proved that the party consisting of the SubInspector, HC Ram Kumar, ASI Rameshwar Dass and Ct. Vikas Kumar reached Shahbad Dairy at about 4.30 a.m. So simple nonproduction of departure entry on record does not create any doubt in the prosecution version narrated by the PWs, particularly, when the same finds corroboration from the testimony of independent witness - PW Ramesh Singh.

It is in the statements of PW Ct. Vikas Kumar and SI Rajinder Dabas that key of the room, under tenancy of Ashok accused was under a brick lying in front of the room. It is true that PW22 ASI Rameshwar Dass stated in his cross examination that the key was removed by "Sandeep" accused from under a brick and produced. But it appears to have so crept in his cross examination by mistake on his part as in his chief examination he clearly stated that it is Ashok accused who got recovered a mobile phone from under a pillow lying in a room on the second floor after he led to the said room. He denied that the key of the lock of the room was with the landlord. Nowhere in his chief examination he stated that the room under tenancy of Sandeep was opened by him with any key. Therefore, simply because the witness fumbled on the name of accused who opened the lock of the room under tenancy of Ashok, while making statement in cross examination, the same does not create any doubt in his testimony regarding the role attributed to Ashok and Sandeep.

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 is 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 also deposed about the aforesaid recoveries.

Learned defence counsel has referred to the statement of PW12 HC Ram Kumar wherein he stated that mobile phone Nokia 1650 was got recovered by "Ashok and Parveen", accused. The contention is that the witness nowhere specifically stated that this mobile phone was got recovered only by Ashok, and that this version being not in consonance with the prosecution version creates doubt in the prosecution story regarding recovery of this mobile phone.

It is true that according to PW12 HC Ram Kumar, Ashok and Parveen, accused got recovered one nokia mobile phone make 1650 but presence of Parveen accused with the police party at time of recovery from C246, Shahabad Diary does not stand established in view of statement of PW Ramesh Singh who deposed only regarding presence of Ashok and Sandeep with the police party. The fact remains that prosecution case regarding presence of Ashok and Sandeep with the police party, at the said house, and recoveries at their instance from the aforesaid respective rooms cannot be disputed.

Learned defence counsel has further submitted that as per prosecution 51 version mobile phone make Nokia 1650 belonged to PW9 Prince Gupta but PW9 has not placed on record any document to suggest that it actually belonged to him, and as such this fact adversely affects the case of prosecution.

No doubt PW9 Prince Gupta has not placed on record any document regarding issuance of mobile phone connection or regarding purchase of any nokia mobile phone but the same does not come to the aid of the accused. According to PW9 Prince Gupta, the mobile phone Ex PX was got issued in the name of his friend Hemvardhan.

Prosecution has examined PW17 Sh. Pankaj Kumar, Nodal Officer from the concerned mobile phone company and he has supported its case. While appearing in Court as PW4 Hemwardhan Singh stated that mobile phone available with Prince was having his sim (sim of this witness). It lends corroboration to the statement of PW Prince Gupta.

Further it has been contended that prosecution has failed to establish that PW9 Prince was carrying mobile phone make Nokia 1650 having connection no. 9891925491. In this regard, learned defence counsel has referred to testimony of PW17 Pankaj Kumar, Nodal Officer, and submitted that PW17 provided IMEI number which does not tally with the IMEI number of the mobile phone alleged to have been recovered by the police at the instance of Ashok accused.

When the IMEI number of the mobile phone make Nokia 1650 recovered at the instance of Ashok accused as find mention in seizure memo Ex.PW2/A is tallied with the IMEI number available in CDR Ex.PW17/A, the same is found to be correct. Therefore, there is no merit in the contention raised by learned 52 defence counsel that the IMEI number of the mobile phone which was available with PW Prince on the date of occurrence does not tally with the mobile phone recovered at the instance of Ashok accused Learned defence counsel has referred to testimony of PW14 Hemwardhan Singh and submitted that his unnatural conduct on the given date, time and place, as testified by him, creates doubt if any such incident took place with him as he would not have acted in the manner narrated by him in court.

In his cross examination, PW14 stated that he did not raise any hue and cry or pull chain at the time of robbery. Having regard to the number of the assailants and the weapons with which they were armed and also the manner in which they committed robbery, would have deterred anyone from raising hue and cry.

The witness was honest in stating that although his purse containing money was also robbed, he requested for his return and the same was returned. This goes to show that he has not withheld the version regarding conduct of the person who acceded to his request in returning the purse containing money. Therefore the conduct of the witness shows a ring of truth in his testimony.

Conclusion

25. In view of the above evidence and the discussion, this court finds that prosecution has fully established its case against accused Sandeep and Ashok Kumar that on 29.09.09, they dishonestly kept in their possession the above referred to stolen property. In other words, Sandeep accused dishonestly kept in his possession mobile phones belonging to Ashutosh Trivedi, mobile phone 53 belonging to Anil Kumar Jha, knowing and having reasons to believe the same to be the stolen property robbed in dacoity. Whereas Ashok Kumar accused dishonestly kept in his possession mobile phone Nokia 1650 of Prince Gupta, knowing and having reasons to believe the same to be the stolen property robbed in dacoity, so both of them made themselves liable for the offence U/s 412 IPC.

Simply because Parveen accused was also sharing the tenanted premises with Ashok accused, it cannot be said, as rightly submitted by learned defence counsel, that he dishonestly received or retained the aforesaid stolen property. Therefore, he cannot be held liable for the offence U/s 412 IPC.

On the point of offence

26. Learned defence counsel contended that prosecution has failed to establish commission of offence U/s 397 IPC as there is no evidence on record to suggest that any of the passengers suffered any injury during the occurrence.

Learned defence counsel also contended that no "deadly weapon" is proved to have been used in commission of the crime and as such, provisions of Sec.395 & 397 IPC are not attracted. As per prosecution version, toy pistol was recovered from Sandeep accused and one razor each was recovered from Ashok and Parveen, accused. The contention is that even if it is believed for the sake of arguments that the toy pistol and razor was used, provisions of Sec.397 IPC are not attracted. Learned counsel has referred to decision in Mohan Singh V. State, 1987 Legal Eagle (DHC) 117; Balak Ram V. State, 24(1983) DLT 142; and Kalu @ Saleem V. State, 2013 (1) JCC 250.

On the other hand, learned Addl. P.P. has referred to decision in Ashfaq 54 V. State, AIR 2004 SC 1253 and contended that when the weapons used by the accused in the running train were within the vision of the victims so as to create terror in their minds, provisions of Sec.397 IPC are clearly attracted.

Section 397 IPC does not provide for causing of injury as one of its essential ingredients.

In Mohan Singh's case (supra), Hon'ble High Court of Delhi observed that in that case evidence of Smt. Sham Lata Goel revealed that only three persons had entered the house, caused injury to her and decamped with the valuable jewellery and as such, it was held that the accused could not be charged or punished U/s 395 IPC.

In Ashfaq's case (supra), Hon'ble Apex Court referred to observations in Phool Kumar V. Delhi Admn., (1975) 3 SCR 917, where it was held as under : "Sec.398 uses the expression "armed with any deadly weapon"

and the minimum punishment provided therein is also 7 years if at the time of attempting to commit robbery the offender is armed with any deadly weapon. This had created an anomaly. It is unreasonable to think that if the offender who merely attempted to commit robbery but did not succeed in committing it attracts the minimum punishment of 7 years U/s 398, if he is merely armed with any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under Sec.397 if he succeeded in committing the robbery. But then, what was the purport behind the use of the different words by the Legislature in the two sections, viz "Uses" in Sec.397 and "is armed" in Sec.398. In our judgment the anomaly is resolved if the two terms are given the identical meaning. There seems to be a reasonable explanation for the use of the two different expressions in the sections. When the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand, if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then 55 the weapon was not put to any fruitful use because it would have been of use only when the offender succeeded in committing the robbery."

Thus, what is essential to satisfy the word "Uses" for the purposes of Sec.397 IPC is the robbery being committed by an offender who was armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in the mind of victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case may be."

As noticed above, it is a question of fact to be proved and prosecution is required to prove that the particular weapon used at the time of robbery was a deadly weapon. In Babu Lal Jai Ram Maurya's case reported in 1992 Crl. L.J. 281 (Bombay), Hon'ble High Court observed that a toy pistol can never be said to be a deadly weapon whatever the impression it seeks on the frightened victims. A fake pistol though used as a deadly weapon and assumed to be one by the victim is not deadly weapon as contemplated U/s 397 IPC, as further observed by the Hon'ble High Court Herein although at the time Sandeep accused was apprehended from near Swatantar Nagar, he was found in possession of toy pistol, it is not case of prosecution witness that this toy pistol was used by any of the robber. The witnesses have deposed about use of fire arm knives and razors. Some of them stated that it was a country made pistol. None of them stated that the robbers or anyone of them was armed with a toy pistol.

Prosecution should have examined the passengers on the point of identity of weapons. No weapon produced in court was shown to any of the passenger during trial to establish their identity and the identity of the accused who used the same or who was armed with same. In absence thereof it cannot be said that 56 any of the accused used any deadly weapon. So this court finds merit in the contention raised by learned defence counsel that prosecution has failed to establish charge U/s 397 IPC against any of the accused. But it does not mean that this court has doubted prosecution version regarding participation of all accused persons in the dacoity in the moving train on 27.09.09.

Herein, as discussed above, participation of more than five accused in the crime stands proved.

In Kalu @ Saleem's case (supra), Hon'ble High Court of Delhi held that it is only the offender who "uses deadly weapon" while committing robbery, who can be handed down the minimum sentence as envisaged U/s 397 IPC and not other accused accompanying him. It has been further observed as under :

"In respect of knives a single Judge of this Court in Mohan Singh V. State 1987 (13) DRJ 176 has held thus. "In order to bring home a charge U/s 397 the prosecution is duty bound to produce convincing evidence that the knife used by the accused in this case was a deadly weapon, it is no doubt true that knives are deadly weapons available in various sizes and may just cause little hurt or may be the deadliest. These are deadly weapons per se such as would ordinarily result in death by their use. M.L. Jain, J. in the case of Balak Ram V. State 1983 DLT 142 on this aspect observed that what would make a knife deadly is its design and method of its use such as is calculated to or is likely to produce death, it is, therefore, a question of fact to be proved and prosecution should prove that the knife used by the accused was a deadly weapon.

Applying the said principle in the facts of the present case I find that there is not an iota of evidence on record to suggest that the knife used by the accused was a deadly weapon. Even Sham Lata Goel has not given its description, we are probably in the dark to conclude if the knife was buttondar knife, a kitchen knife or a pen knife or the knife used could possibly cause the death of the victim, in the absence of such an evidence and particularly the nonrecovery of the weapon will certainly bring the case of the accused out of the ambit of Sec.397 IPC. "Similar is the view 57 expressed in Shri Bishan V. State (Delhi), 1984(1) Crimes 883." It may also be noted that whether a knife is 'deadly' or not is a matter of fact which requires to be proved by leading positive evidence and in this case no such evidence has been led."

"As regards appellant Kalu, PW1 while deposing in the witness box has categorically stated that he had entered through the right door of the car. PW1 has further stated that two persons, who had entered from left door of the car, had used katta, knife and chain, though there is no mention about the katta and knife in the FIR. AS regards Kalu, he has not even whispered a single word that he used either a knife or a katta. Accordingly, alleged recovery of knife after one month of the incident will not be enough to show that he had used the knife while committing dacoity along with his coaccused."

In view of the above discussion, this court finds that prosecution has established its case against all the accused persons that on 27.09.09 in Himalayan Queen Express from Kalka to Delhi, all of them conjointly did commit dacoity by robbing passengers travelling in its general compartment, of their valuables including mobile phones. Accordingly, all of them are held guilty of offence punishable U/s 395 IPC.

27. In view of above findings that prosecution has established that Sandeep and Ashok, accused dishonestly retained in their possession stolen property i.e. property robbed from the possession of the passengers travelling in the general compartment of the aforesaid train and thereby, both of them are held guilty of offence punishable U/s 412 IPC.

28. As a result of the above findings, all the accused persons, Sandeep, Ashok Kumar, Parveen Malik, Rakesh, Mehfuz @ Monu, Sanjay and Rohit, are convicted for an offence punishable U/s 395 IPC whereas Sandeep and Ashok, accused are also convicted for an offence punishable U/s 412 IPC. 58

29. In view of the above discussion, since it has not been established for want of proper identification of the weapons that the accused persons used deadly weapons at the time of commission of dacoity, this court holds that charge for the offence U/s 397 IPC does not stand established. Accordingly, the accused persons are acquitted of the offence U/s 397 IPC.

Let the convicts be heard on the point of sentence.




Announced in Open Court 
on 25.07.2013                                              (Narinder Kumar )
                                                   Additional Sessions Judge(Central)
                                                                    Delhi.




                                           59

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Delhi District Court

Sandeep vs State Of Maharashtra on 25 July, 2013