Delhi District Court
State vs (1) Dharmendra Kumar on 11 September, 2018
IN THE COURT OF SH. SANJAY BANSAL:
SPECIAL JUDGE (NDPS) / ASJ / NORTH EAST:
KARKARDOOMA COURTS: SHAHDARA: DELHI.
Sessions Case No. 44381/2015
CNR No. DLNE01-000070-2012
STATE Versus (1) DHARMENDRA KUMAR
S/o Sh. Ramesh Chand
R/o H.No. E-1, 119/120,
Madangir Ambedkar Nagar, Delhi.
(2) SHAHNAWAZ @ SONU
S/o Sh. Mohd Naim
R/o H.No. T-58, Near Bowli Gate,
Hazrat Nizamuddin, Delhi.
(3) MOHD. JAVED
S/o Mohd. Amer
H. No. T-252, Dildar Nagar,
Hazrat Nizamuddin, Delhi.
(4) MOHD. HUSSAIN @ ARIF
S/o Mohd. Safique
R/o H. No. T-73A, Alvi Chowk,
Hazrat Nizamuddin, Delhi.
(5) MAMTA KUMARI
D/o Late Sh. Babulal
R/o H. No. 7802, Katra Jamaluddin,
Ara Kasa Road, Pahar Ganj, Delhi.
(6) AKRAM
S/o Sh. Allah Rakka
R/o Mohalla Suttar Khana,
Near Bilal Masjid, PS Ganj,
District Rampur, UP.
(Proclaimed Offender)
FIR No. : 302/2012
PS. : Welcome
U/s. : 395/397/412/120-B/34 IPC
Chargesheet Filed On : 17.12.2012
Date Of Allocation : 11.01.2013
Judgment Reserved On : 09.08.2018
Judgment Announced On : 11.09.2018
SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 1 of 41
JUDGMENT:
1. Dr. Ritu Kaushik was living happily with her family in her house at H.No. 10023, Gali No. 3-G, West Gorakh Park, Delhi. In her family, there were her husband Dr. Sunit Kaushik, her mother-in-law Smt. Leela Devi and her son namely Abhav. Both Dr. Sunit and Dr. Ritu were doctors by profession. However, Dr. Ritu had voluntarily given up practice to focus on her family responsibilities. Dr. Sunit used to go to his clinic at about 9:30 am. He used to come back at lunch at about 2:00 pm and again used to go to the clinic in the evening. Time of return in the afternoon used to vary depending upon number of patients.
2. It was 17.09.2012. At about 4:00 pm, complainant Dr. Ritu alongwith her mother-in-law and son were in the house. Dr. Sunit had not come back due to excessive patients. It is alleged that at that time, one girl aged about 20 - 22 years and two boys aged about 20 - 23 years came to her house. They introduced themselves to be employees of BSES and told that they wanted to check electricity meter. The mother-in-law opened the door and all the three came inside. When complainant told them that the meter was checked recently, the girl called another person telling him to be their boss. The fourth person also came inside the house. The girl demanded electricity bill. When complainant came to the other room to take the bill, the girl followed her. Complainant saw that her mother-in-law had been caught hold of by one of the two boys and they were taking her to drawing room. They tied her hands and legs as well as her mouth. The boy who was having big mole caught hold of complainant and SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 2 of 41 showed knife to her. The other boy demanded cash and jewellery. Complainant took him to first floor in the bed room. The said person took bag kept in the almirah in which there were Rs. 2 Lakhs, two gold sets, one diamond ring, one pair of diamond tops and one laptop of Sony. Hands and mouth of complainant were also tied. Husband of complainant came after 15 minutes but by that time the offenders had left the house. Police was informed.
3. Upon statement of complainant Dr. Ritu, FIR was registered u/s 392/397/34 IPC. Various exhibits such as angocha, towel, ropes, khakhi tape pieces, etc. were picked up and seized. Portraits of the offenders were prepared at instance of complainant. Complainant further disclosed that there was one more person who was wearing green check shirt who was also involved in the offence. Supplementary statement of complainant was recorded and Sec. 395 IPC was added in place of Sec. 392 IPC.
4. During investigation, looted mobile phone was put on tracking. One Mohd. Sadiq was found using the said phone. Police officials reached to the said person who disclosed that one Shahnawaz had given him the mobile phone after taking Rs. 1,000/- from him on the pretext that he needed money. Shahnawaz was apprehended. He confessed to his involvement. Rs. 13,900/- were recovered from him. He disclosed that Mohd. Javed, Mohd. Hussain @ Arif and one girl and boy who were acquaintance of Javed, were involved in the offence. He disclosed that they had taken away Rs. 1,37,000/-, two gold sets, one diamond ring and tops, one laptop and mobile phone of Nokia. He disclosed that SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 3 of 41 Rs. 20,000/- were given to him as his share. Rest of the items were with Javed and the girl. Accused Shahnawaz was arrested. He refused to undergo judicial TIP. Names of the girl and the boy were revealed as Mamta and Dharmender.
5. During investigation, the remaining accused persons namely Mohd. Javed, Mohd. Hussain, Mamta and Dharmender surrendered in the court. All were arrested after interrogation with permission of the court. These accused persons disclosed that one Akram had guided them and they looted the house. They told that all of them got Rs. 20,000/- cash. Jewellery was with Akram. They also told that the laptop was thrown by Javed, from a moving train near Rohtak. All the four refused to undergo judicial TIP.
6. Call Detail Records (CDRs) of various mobile numbers were obtained. All the accused persons were found to be in contact and their location was also of West Gorakh Park. Accused Akram could not be apprehended and was declared a proclaimed offender.
7. After completion of investigation, chargesheet was filed against all the five accused u/s 395/397/412/120-B/34 IPC.
8. After compliance of section 207 CrPC, learned MM committed the case to Court of Sessions as offence u/s 395/397/412 IPC was exclusively triable by it.
9. Vide order dated 04.09.2013, my learned Predecessor framed charges for offences u/s 412 IPC against accused Shahnawaz; u/s 397 IPC SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 4 of 41 against accused Mohd. Javed and u/s 395/34 IPC against accused Dharmender Kumar, Shahnawaz @ Sonu, Mohd. Javed, Mohd. Hussain @ Arif and Mamta Kumari. All accused pleaded not guilty and claimed trial.
10. In order to prove the charges, the prosecution examined around 24 witnesses.
11. Statements of all the accused u/s 313 CrPC were recorded. Accused examined 03 witnesses in defence.
12. Let us take note of the evidence led by the parties.
MATERIAL / EYEWITNESSES
13. PW-2 is Smt. Ritu Kaushik. She is the complainant. She deposed in detail about the incident. She deposed that she was also a doctor by profession but for last about 7 years, she was not doing practice and she was residing at her residence as a housewife. She deposed that in her family, her mother-in-law, her son and her husband used to reside in the said house. Her husband was doctor and was running his clinic in the name and style of Kaushik Medical Centre at Jawahar Nagar, Loni, Delhi. He was running his clinic for the period from 10.00 a.m. to 2.00 p.m. and, thereafter, from 5.00 p.m. to 9.00 p.m. He used to leave the house at about 10.00 a.m. and used to return in the afternoon at about 2.00-3.00 p.m., depending upon the number of patients. He used to go again to his clinic at about 5.00 p.m. in the evening and used to return back at about 9.30-10.00 p.m., depending upon the number of patients. SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 5 of 41
14. She further deposed that on 17/09/2012, at about 3.00-3.30 p.m., she alongwith her mother-in-law and her son were present in her house. By that time, her husband had not returned, due to large number of patients. At that time, somebody knocked at their door and her mother-in-law went to attend the call and she returned back and told her that a girl and a boy were standing outside and were asking to check the electricity bills. She deposed that thereafter, she went to the gate and saw that a girl and a boy having a big mole on his face, were standing near the gate. They told her that they had come to check the electricity bill and the electricity meter as there were complaints of inflated bills. From their appearance, she could not gather any suspicious activity and therefore, her mother-in-law opened the door and they permitted them to check the meter. The boy started checking the electricity meter and the girl asked her about the electricity bill. PW-2 went inside the house to bring the electricity bill. She brought an electricity bill and showed it to the girl on which, the girl asked her to bring the latest bill. She told her that she was not having any other bill. The girl also asked her to call any male member to show the new electricity bill on which, she told her that no male adult member was available in the house at that time. She again went inside the house to trace any other new electricity bill but she could not trace the new bill. PW-2 further deposed that when she was coming out from her room, she saw that one boy had kept his hand around the mouth of her mother-in-law and was taking her inside the house by forcibly lifting her by keeping her mouth pressed with his hand. In the meantime, two or three more boys came inside their house and she was so SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 6 of 41 frightened that she did not remember the exact number of boys, who came inside her house.
15. She deposed that after tying the hands, legs and mouth of her mother-in-law, she was made to lie on floor. The boy, who was having a mole on his face, made her sit on sofa and his associates tied her mouth with tape and her hands were also tied. She requested the accused person to open her mouth as she was having difficulty in breathing. The accused persons told her that they were in need of money as their mother was admitted in the hospital. At that time, two boys and a girl were present near her. PW-2 identified accused Dharmender as the person who had told her that he was in need of money as his mother was admitted in hospital. PW-2 pointed out towards accused Shahnawaz as the person who was having a mole on his face and who threatened her with a knife. PW-2 pointed out towards accused Mamta Kumari as the person who entered her house and committed the offences alongwith the other accused persons.
16. PW-2 was unable to identify the other persons who had entered her house and committed the offences. PW-2, however, pointed out towards accused Mohd. Hussain as the person who had come inside her house and told other accused persons that one more almirah was lying in her house on the first floor. PW-2 further pointed out towards accused Javed as the per person who had gone to the first floor of the house and made search of the house and came down stairs and told the other person that no other family member was present in the house.
SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 7 of 41
17. PW-2 further deposed that accused Mamta had asked her to hand over the cash amount which her guest, who came from Punjab to visit them a few days ago, had brought to her house. PW-2 told accused Mamta that the said guest had already left and no cash was given to them by those guest. She deposed that in the meantime, accused Dharmender told the other accused persons not to kill anybody and asked about the cash and jewellery lying in the house. PW-2 asked the accused persons not to harm them and told them that the cash and jewellery was lying on the first floor. Thereafter, accused Dharmender had taken her to the first floor alongwith accused Javed while keeping her mouth shut with their hands. Thereafter, at the first floor, they took the keys of almirahs from her and they searched the almirahs and the store and took out cash and jewellery. The accused persons had taken away cash amount of about Rs. 2.5 lakhs, two golden sets, one diamond ring, one diamond top and some artificial jewellery with them. They had also taken away the laptop and a mobile phone of her mother-in-law.
18. She deposed that thereafter accused Javed pointed a knife at her and forcibly took out tops from her ears. She stated that the accused persons tied her hands and left their house. She clarified that accused Javed was the person who had forcibly lifted her mother-in-law and taken her inside the house. PW-2 further stated that she made some efforts and was successful in freeing her hands and removed the tapes from her mouth and closed the door of her room from inside. In the meantime, she heard the noise of motorcycle of her husband and came out of her house and shouted and told her husband not to come inside SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 8 of 41 the house as the accused might be present on the ground floor. But, her husband came inside the house and at that time, no accused was present there. She also came downstairs. Her husband informed the police on phone and removed the tapes and clothes from the mouth of her mother-in-law and also removed the ropes from her hands and legs. The police came to the spot within 5-10 minutes. The police officials made inquiries from her and recorded her statement which is Ex.PW2/A. She deposed that she and her mother-in-law were in shocked condition. She deposed about preparation of site plan by the police officials which is Ex.PW2/B. The crime team and dog squad and the Media person and the photographer also visited their house. She does not know about the clothes, the ropes etc which her husband had removed from the mouth and the hands and legs of her mother-in-law. She does not remember whether the police officials had taken her chunni, which was used by the accused persons for tying her mouth and the shirt of her husband which was used by the accused persons for tying her hands.
19. She was unable to identify some of the case properties i.e. the two long ropes Ex.PW1/P-1 (collectively), brown packing tape piece Ex.PW1/P-2, printed small cloth piece Ex.PW1/P-3, one big cloth piece (angocha) Ex.PW1/P-4 and the cloth towel Ex.PW1/P-5.
20. She further deposed that after about 4 days of the incident, police officials told her that one accused who was having a big mole on his face had been apprehended and she was called to the police station. She went there and SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 9 of 41 identified the said accused in the PS.
21. She deposed that after about 2 months of the incident, the police officials informed her that some of the robbed articles had been recovered and she was required to identify those articles in the Court. She was disclosed that one diamond ring and four bangles had been recovered from the accused persons. Thereafter, PW-2 came to Karkardooma Courts and she identified her jewellery articles before the Magistrate vide TIP proceedings Ex.PW2/B. Jewellery artices i.e. four bangles are Ex.PW2/P-1 collectively and the diamond ring is Ex.PW2/P-2. She also identified mobile phone of her mother-in-law which is Ex.PW2/P-3 having IMEI No. 356946033784749.
22. The witness was cross-examined by learned Prosecutor regarding date of identification of accused persons at Karkardooma Courts. PW-2 denied that on 08.11.2012, she had identified accused persons at court premises. She clarified that she had identified only one accused after four days of the incident and the others she had identified only during trial. She denied making any statement in this regard to the police.
23. In cross-examination on behalf of accused Mamta, she stated that her mother-in-law Smt. Leela Kaushik had expired on 04.12.2013. She denied that their maid was present in the house at the time of the offence. She admitted that in her statement Ex.PW2/A, she had mentioned that one girl and two boys had come initially in her house. It has come that she had identified accused having big mole on his face in the police station. She denied that the entire story SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 10 of 41 was false or concocted by them. She denied that it was her maid and her maid's associates who had committed the robbery. She denied that she had identified accused Mamta and others under fear of actual culprits.
24. In cross-examination on behalf of accused Dharmender, she denied that accused Dharmender was shown to her at Karkardooma Court. She denied that accused Dharmender was shown to her at police station as well. She denied that she had identified accused Dharmender in the court at instance of the IO.
25. In cross-examination on behalf of accused Mohd. Hussain @ Arif, it has come that the offenders had stayed for about half an hour in her house during the incident. She denied that the portraits prepared at her instance were different from the accused persons. She denied that IO had shown her the jewellery articles before TIP. She denied that accused Mohd. Hussain was not involved in the offence. She denied that she had identified accused Mohd. Hussain at instance of the IO.
26. In cross-examination on behalf of accused Shahnawaz and Javed, she denied that she was in unfit state of mind while giving statement to the police. It has come that knife was shown to her and put on her neck by the accused. She denied that accused Shahnawaz was not involved in the offence. She was confronted with her statement Ex.PW2/A in which it was mentioned that the big mole on the face was towards right side cheek whereas in fact it is towards left side of accused Shahnawaz. She denied that she had identified both Shahnawaz and Javed in the court at instance of the IO.
SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 11 of 41
27. PW-1 is Sh. Sunit Kaushik. He is husband of PW-2/complainant. He deposed that he is doctor by profession and he used to run his clinic at Jawahar Nagar, Loni, in the name and style as Kaushik Medical Centre. The timings of his clinic were 10.00 a.m. to 1.30/2.00 p.m. He deposed that he used to leave his house for clinic at around 9.30 a.m. and used to come back home by 2.30 or 3.00 p.m. depending upon number of his patients.
28. He stated that on 17/09/2012, there were number of patients at his clinic and he got late. He reached at his house at about 5.00 p.m. He stated that as soon as he stopped his bike at his house, he saw his wife who came in the balcony of first floor after hearing the sound of the bike and she was appearing in fear and nervous condition. He deposed that his wife asked him not to come inside the house. He described that the gate was closed but not locked from inside. He deposed that he went inside the house and saw that his mother was lying on the floor and her mouth and nose were gagged with cloth and was covered with a packaging tape and her hands and legs were also tied with ropes and she was almost unconscious and was unable to breath properly. He opened mouth, hands and legs of his mother. By that time, his wife and son also came down to the ground floor. He deposed that his wife told him that one girl and four boys had committed the dacoity and she also told him that the robbers were having weapons in their hands. His wife also told him that her hands and mouth were also tied by the robbers. The almirahs at the first floor room and the double bed at ground floor room were lying opened and the goods were lying scattered. On checking, various articles were found looted i.e. cash worth more than Rs. 2 SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 12 of 41 lakhs, jewellery of his wife, his diamond ring, ear rings of his wife, one laptop and mobile phone of his mother of make Nokia of black colour. He deposed that robbers had left Sim Card of the mobile phone but they had taken the instrument with them. He stated that he gave water to his mother, and when she regained her normal position, she was also under shock. She told him that one of the robbers was having black mole on his face and he put pistol on her temple and gave beatings to her while committing dacoity.
29. He deposed about informing police at 100 number. Police instructed him not to touch anything lying in his house. The police officials reached at the spot within 10 minutes and inspected the spot. The police seized the ropes and cloths, by which his mother and wife were tied by the accused persons. The finger print expert also visited the spot and conducted the investigations. The dog squad was also called to the spot. The seizure memo of two ropes, towel, angocha and brown packing tape is Ex. PW1/A.
30. He deposed that on 18.09.2012, DCP, ACP and other police staff visited his house. After 2 - 3 days, they were called in the PS and he and his wife went to the PS, where his wife had identified one of the culprits, who was having black colour big mole on his face. The witness had pointed out towards the accused Shahnawaz that he was the person, who was identified by his wife. He stated that accused Shahnawaz was seeking apology from his wife at the PS. He identified the articles, which were seized by the police. The two long ropes are Ex. PW1/P-1 (collectively), brown packing tape piece is Ex.PW1/P-2, printed SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 13 of 41 small cloth piece is Ex. PW1/P-3, one big cloth piece (angocha) is Ex. PW1/P-4 and the cloth towel is Ex. PW1/P-5. He also deposed that the photographer of the police official had taken the photographs of his house which are Ex. PW1/P-6 to Ex. PW1/P-16.
31. In cross-examination on behalf of accused Mamta, PW-1 deposed that his wife is not attending the clinic for last about 6-7 years and he used to visit his clinic again in the evening for the period w.e.f. 6.00 p.m. to 9.00 p.m. He deposed that he had not received any phone call on the date of incident to return back to my house. PW-1 denied the suggestion that his mother and wife had told him only about three boys and one girl. He reiterated that they had told him about four boys and one girl. He denied that he or his wife alongwith his mother had visited Saket Court in connection with investigation of this court. He denied that the rope had been planted by the police.
32. In cross-examination on behalf of accused Dharmender, he denied that he had signed on blank papers.
33. In cross-examination on behalf of accused Shahnawaz, it has come that when he had reached the house, his wife/PW-2 was quite terrified and his mother was in semi-conscious condition on the floor. There was tape on her mouth and her hands were tied. He denied that he had seen photographs of the accused persons in the police station.
34. Other accused persons adopted the cross-examinations. SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 14 of 41
35. PW-1 was re-examined by learned Prosecutor with permission of the court in which he produced original receipt of Nokia mobile phone and diamond ring which are Ex.PW1/X and 1/Y.
36. PW-1 was further cross-examined. He denied that the bills were forged and fabricated.
37. PW-8 is Mohd. Shafin Qureshi. He was having relationship with accused Mamta and deposed that Mamta was introduced by him to one Akram. Later on, Akram told him that Mamta was a dangerous girl as she wanted to earn quick money. Akram also told PW-8 that few days before 26.09.2012, Mamta had done some big job and provided him around 20,000/- and jewellery.
38. In cross-examination, he stated that he had signed some papers at instance of the police without reading them but clarified again that he had read them.
39. PW-11 is Mohd. Sadiq. He deposed that he used to sell flowers at Dargah Hazrat Nizamuddin at the shop of Basiq. Accused Shahnawaz was known to him as he also resided there. He deposed that on 18.09.2012, Shahnawaz came to him at his shop and told that he (Shahnawaz) was in need of Rs. 1,000/- and offered to leave his mobile phone with PW-11. PW-11 deposed that he gave Rs 1,000/- to Shahnawaz and kept his mobile with him. After inserting his SIM in the said mobile, PW-11 used the same and made calls. He deposed that later on police officials called him and enquired about mobile SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 15 of 41 phone and told him that it was stolen mobile phone. PW-11 deposed that police officials came to him and produced the mobile phone to them which was seized vide memo Ex.PW11/A. He deposed that he had taken the police to Shahnawaz and he was arrested. Rs. 13,900/- (typed as Rs.1390/-) were recovered from accused Shahnawaz which was seized vide memo Ex.PW11/B. PW-11 identified the mobile phone as Ex.P-3. He identified accused Shahnawaz also.
40. In cross-examination, he denied that under compulsion of police officials, he had falsely claimed that mobile phone was given to him by accused Shahnawaz. He told that Shahnawaz had asked him to keep the mobile phone if he (Shahnawaz) failed to return the money. Shahnawaz also told him that he would issue receipt regarding the mobile phone in case he failed to return the money. He denied that he was framing accused Shahnawaz due to business rivalry.
41. The witness was recalled by the court and examined u/s 165 Indian Evidence Act. In the said examination, he did not remember whether the mobile number which he was using on the mobile phone Ex.P-3 was 8130126559 or not. He told that the mobile phone number belonged to one Mohd. Wasik Ahmed with whom he was working.
42. PW-21 is Smt. Bano Begum. She is mother of accused Akram. Prosecution examined her to prove recovery of jewellery articles from house of Akram vide seizure memo Ex.PW19/E. However, she stated that police officials had obtained her thumb impression on a blank paper. She turned hostile. She SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 16 of 41 was cross-examined by learned Addl. PP. but she did not change her stand. INVESTIGATION WITNESSES
43. PW-9 is Lady Ct. Anita. She deposed that she had joined the investigation on 24.09.2012. She deposed that accused Mamta, Javed and Dharmender had surrendered before the court. She deposed that IO interrogated the accused persons. Disclosure statement of accused Mamta is Ex.PW9/A. She witnessed arrest of accused Mamta vide arrest memo Ex.PW9/B. She conducted personal search of accused Mamta vide memo Ex.PW9/C. She deposed that accused Mamta was produced in muffled face and she refused to undergo judicial TIP. Nothing has come out in cross-examination.
44. PW-13 is Ct. Ravindra. He had also joined the investigation on 24.09.2012 i.e. the date on which remaining accused persons had surrendered in Karkardooma Court. He is witness to arrest of accused Javed vide memo Ex.PW13/A, of accused Mohd. Hussain vide arrest memo Ex.PW13/B and of accused Dharmender vide memo Ex.PW13/C. Personal search memos of these three accused are Ex.PW13/D, 13/E and 13/F. He deposed that IO recorded their disclosure statements as well which are Ex.PW13/G, 13/H and 13/I. He deposed that all the accused were produced in muffled faces and they refused to undergo judicial TIP. Nothing has come out in cross-examination.
45. PW-14 is Ct. Shish Pal Singh. He had also reached the spot after receiving information. He participated in the proceedings conducted there on SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 17 of 41 17.09.2012. He had taken rukka to the police station for registration of the case.
46. PW-15 is HC Krishan Chander. He had also reached the spot alongwith other police officials and participated in the proceedings on 17.09.2012. He has deposed about seizure of various articles from the spot vide memo Ex.PW1/A.
47. He further joined the investigation on 20.09.2012. He witnessed seizure of mobile phone Nokia 2700-C of black colour vide seizure memo Ex.PW11/A. He also witnessed arrest of accused Shahnawaz and recovery from him. He identified the case properties.
48. Nothing substantial has come out in his cross-examination.
49. PW-19 is SI Satyendra Singh. He is the initial and main Investigating Officer (IO). He deposed that on 17.09.2012, he was posted at PS Welcome as SI. On that day, DD No. 18-A was recorded in the police station Welcome and the said DD was assigned to SI Brij Mohan. Copy of DD No. 18-A on record is Ex.PW19/A. The information about the said DD was also given to the SHO, PS Welcome and, thereafter, he alongwith Insp. Yogesh Malhotra, SHO, PS Welcome went to the spot i.e. H. No. 10023, Gali No. 3G, West Gorakh Park. On reaching, they found present, SI Brij Mohan, Ct. Sheesh Pal (PW-14), HC Krishan (PW-15) and Ct. Ashok, there. In the rooms, they found that the articles were lying scattered. Two pieces of ropes, one towel and angochha and pieces of tape were also found lying there. At the first floor, there were two rooms SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 18 of 41 and one store room. Domestic articles were also found lying scattered in the said two rooms and articles of almirah in store room were also found scattered and almirah was in open condition. Smt. Ritu Kaushik complainant then got recorded her statement to him which is already Ex.PW2/A. Thereafter, on the basis of her above said statement, he prepared rukka Ex.PW19/B and it was sent to police station through Ct. Sheesh Pal.
50. He deposed that Crime team was also called at the spot and crime team took the photographs of the spot. The photographs on record are Ex.PW1/P6 to Ex.PW1/P16. Site plan Ex.PW2/B was prepared by him. Pieces of rope, towel, angochha and pieces of tape were lifted from the spot and it were sealed in a cloth parcel with the seal of 'SS' and parcel was taken into possession vide seizure memo Ex.PW1/A. In the meantime, Ct. Sheesh Pal reached at the spot and he handed over computerized copy of FIR and rukka in original to him.
51. He deposed that thereafter, he had recorded statement of Smt. Leela Kaushik. She had informed that accused persons had also taken her mobile phone make NOKIA having no. 7838285212. He recorded statement of photographer and Dr. Sunit Kaushik and supplementary statement of Dr. Ritu Kaushik. Thereafter, they had returned to police station. He deposited case property in malkhana and recorded statement of police officials.
52. He deposed that on 18.09.2012, he took Dr. Ritu Kaushik and Smt. Leela Kaushik to the office State Crime Record Bureau, Kamla Market and there portrait of culprits were got prepared with their help. He recorded their SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 19 of 41 supplementary statements. Dr. Ritu Kaushik had informed that culprits were five and she had earlier told the number as four as she was perplexed. He returned to police station after relieving the witnesses. Section 395 IPC was added in the case.
53. He deposed that on 20.09.2012, he came to know through call detail that stolen mobile phone was in use of one Mohd. Sadiq at Hazrat Nizammuddin. He contacted him and thereafter, he alongwith ASI Bhism Rana, HC Kishan Chand, Ct. Ravinder and Ct. Dharmbir had reached Hazrat Nizammuddin and met Mohd. Sadiq. There Mohd. Sadiq had produced mobile phone make NOKIA and he had informed that said mobile was given to him by one Shahnawaz who had taken Rs. 1,000/- from him. PW-19 deposed that he took the said mobile into police possession vide seizure memo Ex.PW11/A after keeping in a pulanda which was sealed with the seal of 'SS'. He mentioned IMEI number of mobile phone in seizure memo.
54. He deposed that thereafter, Mohd. Sadiq led them to Shahnawaz. He made enquiries from Shahnawaz. Shahnawaz was interrogated who had disclosed about the commission of the crime alongwith his associate. Accused Shahnawaz was arrested vide arrest memo Ex.PW15/A at about 01.00 a.m. of 21.09.2012. His personal search was effected vide memo Ex.PW15/B during which Rs.200/- and one black mobile phone make NOKIA was recovered. His disclosure statement was recorded vide memo Ex.PW15/C. Accused Shahnawaz got recovered Rs.13,900/- (22 notes of Rs.500/- and 29 notes of SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 20 of 41 Rs.100/-) from a school bag kept in books stating the same to be from his share in the looted amount. PW-19 deposed that he kept the same amount in a pulanda which was sealed with the seal of 'SS' and taken into police possession through seizure memo Ex.PW11/B. He recorded statement of Mohd. Sadiq. Thereafter, they had returned to police station alongwith Shahnawaz who was kept muffled face. Case property was deposited in the malkhana. He recorded statement of police officials.
55. Accused Shahnawaz was produced before the Court. He moved an application for TIP proceedings of accused Shahnawaz. His application is Ex.PW19/C. Application was marked to Sh. R.L. Meena, learned Link MM. Accused had refused to join the TIP proceeding before Sh. R.L. Meena, learned Link MM. He had taken two days' police remand of accused Shahnawaz. Accused Shahnawaz was taken to police station. Dr. Ritu Kaushik who had came to police station in connection with investigation of this case had identified accused Shahnawaz as one of the culprit. He recorded statement of Dr. Ritu Kaushik. He made search for the co-accused persons but they were not found on that day. Accused Shahnawaz was sent to JC.
56. He deposed that on 24.09.2012, he came to Karkardooma Court and arrested accused Mamta, Javed, Hussain and Dharmender as they had surrendered before the Court. Arrest memos are Ex.PW9/B, Ex.PW13/A, Ex.PW13/B and Ex.PW13/C respectively. Personal search memos are Ex.PW9/C, Ex.PW13/D, Ex.PW13/E and Ex.PW13/F respectively. He recorded SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 21 of 41 their disclosure statements which are Ex.PW13/G, Ex.PW13/H, Ex.PW13/I and Ex.PW9/A. He deposed that accused persons were kept in muffled face. He moved an application for conducting TIP of the accused persons which was marked to Ld. Link MM. His application in this regard is Ex.PW19/D. Accused persons were produced before Ld. Link MM where accused persons had refused to join TIP proceeding.
57. He deposed that since accused persons had disclosed involvement of one more person namely Akram, therefore, Sec. 120-B IPC was added. He made search for weapon of offence and case property but same could not be found at that time.
58. He deposed about visiting Rampur alongwith accused Javed in search of accused Akram but Akram could not be found.
59. He deposed that on 08.10.2012, Dr. Ritu Kaushik had identified accused Mamta, Javed, Hussain and Dharmender in Karkardooma Court where accused persons were produced for extension of judicial remand.
60. He deposed that on 07.02.2013, they had gone to house of accused Akram in Rampur, U.P. alongwith Ct. Jitender and Ravinder for execution of process under section 82 Cr.P.C. During search of the house of accused Akram, one diamond ring and four bangles were recovered. Same were kept in a pulanda which was sealed with the seal of 'SS' and taken into police possession through seizure memo Ex.PW19/E. He recorded statement of Smt. Bano SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 22 of 41 Begum, Ms. Shakira and Ct. Ravinder. Thereafter, he moved an application for TIP of recovered articles on 14.02.2013. Copy of the same is Ex.PW19/F.
61. He deposed that on 18.02.2013, Sh. Dharmender Rana, learned MM had conducted TIP of the case property wherein Smt. Ritu Kaushik had identified the articles. He also deposed about obtaining CDRs and filing the same. He identified the accused persons as well as case properties i.e. rope as Ex.PW1/P-1, brown tape as Ex.PW1/P-2, Small cloth piece as Ex.PW1/P-3, one big cloth piece (anghocha) as Ex.PW1/P-4, towel as Ex.PW1/P-5, mobile phone make NOKIA black colour with Airtel SIM having IMEI no. 356946033784749 as Ex.PW2/P-3, currency notes worth Rs.13,900/- as Ex.PW14/1 (colly.), four bangles as Ex.PW2/P-1 (colly.) and one diamond ring as Ex.PW2/P-2.
62. In cross-examination, he denied that he had falsely implicated accused Shahnawaz and saved Mohd. Sadiq after taking money from him. It has come that complainant had not told description of jewellery articles. It has come that complainant did not give any bills regarding jewellery articles nor she told denomination of currency notes. He denied that he had implicated other accused persons as well. He denied that case properties were planted. He was generally cross-examined about the investigation as well.
63. PW-20 is SI Rizwan Khan. He had conducted further investigation. He had moved application for issuing process u/s 82 CrPC against accused Akram. The application is Ex.PW20/A. He deposed that accused Akram was declared a proclaimed offender vide order dated 08.05.2013. He filed SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 23 of 41 supplementary chargesheet against accused Akram.
FORMAL WITNESSES
64. PW-3 is Retired SI Ajeet Singh. He was Duty Officer and deposed about receiving rukka and recording of FIR at about 8:40 pm on 17.09.2012. Copy of FIR No. 302/12 u/s 392/397/34 IPC is Ex.PW3/B. Copy of Kayami DD No. 21A is Ex.PW3/A. He deposed that after registration of the FIR, he handed over the copy of computerized FIR and original rukka to Ct. Shishpal for giving it to SI Satender.
65. PW-7 is Ct. Devender. He deposed that on 17.09.2012, he was posted at control room PCR, PHQ, New Delhi and his duty hours were from 2:00 pm to 8:00 pm. On that day, at about 17.17 hours, one information was received from phone No. 22822402 to Control Room that "4-5 admi ghar me akar, ghar walo ke hath pair bandh kar ghar ka sara saman loot kar le gaye hai". He recorded the information and sent the same through channel No. 123 to Consoule operator for necessary action. He had brought the attested copy of the PCR Form having attestation of ACP, which is Ex. PW7/A.
66. PW-10 is Ct. Neeraj. He had taken photographs at the spot. The photographs are Ex.PW1/P-6 to P-16. Negatives are Ex. PW10/A1 to A 11.
67. PW-16 is HC Devender Kumar. He deposed that on 17.09.2012, he was posted at PS Welcome and was on duty as MHC(M). He deposed about deposit of one sealed parcel by SI Satender Kumar sealed with the seal of SS. SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 24 of 41 He made entry at serial no. 2541 in this regard. Copy of the same is Ex. PW16/A.
68. He deposed that further on 21.09.2012, SI Satender Kumar had also deposited two parcels sealed with the seal of SS pertaining to this case in the Maalkhana. He made entry at serial no. 2542 in this regard. Copy of register no. 19 of the relevant entry is Ex. PW16/B.
69. PW-17 is HC Billu Kumar. He deposed that on 07.02.2013, he was working as MHC(M) at PS Welcome. He deposed about deposit of one parcel sealed with the seal of SS, by SI Satender Kumar. He made entry at serial no.1916 in register no.19 in this regard. Copy of relevant entry is Ex.PW17/A.
70. PW-18 is Sh. Dharmender Rana, learned MM. He had conducted TIP proceedings of accused persons as well as case property. Application for conducting TIP of accused persons is Ex.PW18/A. TIP proceedings in respect of accused persons namely Dharmender Kumar, Mohd. Javed, Mohd. Husan and Mamta Kumari are Ex.PW18/B to Ex.PW18/E respectively. All the accused had refused to join the TIP proceedings.
71. Application for conducting TIP of case property is Ex.PW18/G. The TIP proceedings of articles is ExPW18/H. He deposed that witness had correctly identified the articles.
72. PW-4 Rajeev Ranjan is Nodal Officer from Tata Tele Services Ltd. He produced record of mobile No. 9213824211. He deposed that as per record, the aforesaid mobile number was registered in the name of Mr. Vinit Garg, House SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 25 of 41 No. 501, Budh Vihar Road, Tyagi Market, Mandowli, New Delhi-93. The copy of Customer Application Form (CAF) and ID of the subscriber Vinit Garg i.e. Driving License are Ex. PW4/A and Ex. PW4/B. The record already lying on the file is Ex.PW4/A-1 and Ex. PW4/B-1. He also produced the CDR of the said mobile number for the period of 21.09.2012 to 22.09.2012 which is Ex.PW4/C and for the period of 01.09.2012 to 20.09.2012 which is Ex.PW4/D; and location chart is Ex.PW4/D-1. He proved Certificate under Section 65-B of Indian Evidence Act for the CDR for aforesaid periods are Ex.PW4/E and 4/F.
73. PW-4 also produced the CAF of mobile no. 9250551106 and as per record, this mobile number was registered in the name of Teena D/o. Surender Tetri R/o. H No. 204, T-Hut, DTC Colony, Shadipur, New Delhi. The photocopy of CAF is Ex.PW4/G and photocopy of voter I card is Ex.PW4/H.
74. PW-5 Amar Nath Singh is Nodal Officer of Idea Cellular Ltd. He produced record of mobile No. 9718531692. He deposed that as per record, the aforesaid mobile number was registered in the name of Mr. Jitender Kumar, House No. 684, Nehru Kutia, Old Subji Mandi, Delhi. The copy of CAF and ID of the subscriber Jitender Kumar i.e. Voter Election I card are Ex. PW5/A and Ex. PW5/B. He also produced the CDR of the above mobile number for the period of 01.09.2012 to 20.09.2012, running into 17 pages and the same is Ex. PW5/C. Certificate under Section 65-B of Indian Evidence Act for the CDR is Ex. PW5/D. Forwarding letter for sending CAF and CDR to IO is Ex. PW5/E.
75. PW-6 R. K. Singh is Nodal Officer from Bharti Airtel Ltd. He SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 26 of 41 produced record of mobile No. 9871219164 and 9958063822. He deposed that as per record, the aforesaid mobile number 9871219164 was registered in the name of Mr. Sunil Kumar S/o Ramesh Chand, House No. E-1/119-120, Madangir, New Delhi. The copy of CAF and ID of the subscriber Sunil Kumar i.e. Driving License are Ex. PW6/A and Ex. PW6/B. He also produced the CDR of the above mobile number 9871219164 for the period of 01.09.2012 to 20.09.2012 which is Ex.PW6/C. Certificate under Section 65-B of Indian Evidence Act is Ex.PW6/D collectively.
76. He also produced the CAF of mobile No. 9958063822. He deposed that as per record, the subscriber of the mobile phone is Majid Khan S/o Zakir Ali R/o. H No. T-58, Basti Hazrat Nizamuddin and the second address is House No. 145, Mau, Shahajanpur, Allahgang, Shahajanpur. The photocopy of the CAF is Ex.PW6/E and copy of the election I card is Ex.PW6/F.
77. He also proved the CDR of abovesaid number lying on record as Ex.PW6/G. He also produced CDR of the same mobile phone for the period of 01.09.2012 to 20.09.2012, which is Ex.PW6/H. Cell ID Chart is Ex.PW6/I. Certificate under Section 65-B of Indian Evidence Act for the CDR for both the above mobile phones call details is Ex.PW6/J.
78. PW-12 Rajeev Sharda is Alternate Nodal Officer from Reliance Communication Ltd. He produced CAF of mobile No. 9368668338. He deposed that as per records, the same was issued in the name of Mohd. Akram S/o Sh. Allah Rakha. Copy of CAF and ID Proof is Ex.PW12/A (Colly.). SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 27 of 41
79. He also produced CDR for the period 01.09.2012 to 20.09.2012 alongwith Cell ID Chart. Same is Ex.PW12/B (Colly.). He also produced certificate of Section 65-B Indian Evidence Act. Same is Ex.PW12/C.
80. PW-22 Sh. Surender Kumar is Nodal Officer from Bharti Airtel Ltd. He produced certified copy of CDR in respect of mobile No. 9871219164 for the period from 01.09.2012 to 20.09.2012 (25 pages) which is Ex.PW22/A. Certificate under section 65-B of the Indian Evidence Act, 1972 in respect of CDR of mobile No. 9871219164 for the period w.e.f. 01.09.2012 to 20.09.2012 issued by him is Ex.PW22/B.
81. He also produced certified copy of CAF in respect of mobile No. 9871219164. He deposed that as per record, the said mobile number was issued in the name of Sh. Sunil Kumar S/o Sh. Ramesh Chand R/o E-1/119-120, Madangir, New Delhi on 04.07.2009. He deposed that Sh. Sunil Kumar had furnished a copy of his driving license as Identity Proof alongwith application for issuance of mobile number. A certified copy of driving license furnished by Sunil Kumar is Mark A. Certified copy of Cell ID alongwith site address chart (2 pages) is Ex.PW22/C.
82. He produced certified copy of CAF in respect of mobile No. 8130126559 which is Ex.PW22/D. The said mobile number was issued in the name of Sh. Wasiqe Ahmed S/o Sh. Gul Mohd. R/o 2591, Basti Hazrat Nizamuddin, New Delhi-110013. He furnished a copy of his voter's I-card as Identity Proof alongwith application for issuance of mobile number. A certified SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 28 of 41 copy of voter's I-card of Sh. Wasiqe Ahmed is Mark B.
83. He had seen a copy of CDR in respect of mobile No. 8130126559 for the period from 18.09.2012 to 19.09.2012 on the file of this Court. It is a print out of the CDR provided to the police during investigation. CDR were not preserved as no such request was received from Investigating Officer or any senior officer of police. He deposed that the said CDR are not available in their system as the data pertaining to year 2012 sent through E-mail is crashed and could not be retrieved. He deposed that he had not issued certificate under section 65-B of the Indian Evidence Act in respect of CDR of mobile No. 8130126559 in the absence of availability of data in their system or the certified copy of the record in their office. CDR of mobile No. 8130126559 is Mark C.
84. PW-23 is Mohd. Wasiqe Ahmed. He stated that he had not applied for issuance of SIM card to Bharti Airtel Ltd. However, he admitted that he had provided SIM card of mobile no. 8130126559 to Mohd. Sadiq.
85. PW-24 is Sunil. He is brother of accused Dharmender. He was examined regarding issuance of mobile phone no. 9871219164. He stated that he had not applied for issuance of the said mobile number. He stated that he had not provided the said mobile number to Dharmender. However, he admitted that his photograph is appearing on the CAF. He denied his signature on the said CAF.
STATEMENTS OF ACCUSED PERSONS SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 29 of 41
86. Incriminating circumstances appearing in evidence against accused persons were put to them as required U/s. 313 Cr.P.C. Accused persons stated that they were innocent and were falsely implicated.
DEFENCE WITNESSES
87. DW-1 is Quayamuddin. He is Head of one school namely GBSSS, Jangpura. He produced attendance registers of Class X and XII and of dates 17.09.2012 and 18.09.2012. He deposed that Mohd. Hussain was studying in Class X and Mohd. Javed was studying in Class XII in the said school on these two dates. He deposed that as per attendance registers, both Mohd. Hussain and Mohd. Javed were present in their class on both the dates. Copy of the attendance register is Ex.DW1/A and Ex.DW1/B.
88. In cross-examination, it has come that it was morning shift from 8:00 am to 2:00 pm. Attendance used to be marked at 8:15 am and 11:00 am. It has come that there were examinations on both the said dates and examination period was 9:30 am to 12:30 pm. It has also come that both Mohd. Hussain and Mohd. Javed were absent from their classes after 18.09.2012 and their names were struck off.
89. DW-2 is Mohd. Altamesh. He was also student of Class XII of the abovesaid school. He deposed that after examination on 17.09.2012, he alongwith Mohd. Javed came out of school gate at about 1:30 pm as they were discussing next paper. He deposed that he came to know that on 18.09.2012, SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 30 of 41 Mohd. Javed had been implicated falsely in the present case. Photocopy of his own mark-sheet is Ex.DW2/A. However, he also says that accused Mohd. Javed had not come to school on 18.09.2012.
90. In cross-examination, he changed his stand and told that paper of Hindi was on 15.09.2012, Economics on 16.09.2012 and Political Science on 17.09.2012. He stated that he did not remember other papers.
91. DW-3 is Jabbar Hazam. He is tutor of accused Mohd. Hussain and Mohd. Javed. He stated that he was giving tuitions for Political Science, History, Sociology and Hindi to Mohd. Javed. He was teaching English, Hindi and Social Study to accused Mohd. Hussain. Period of tuition was from 3:00 pm to 4:30 pm from Monday to Saturday. He stated that internal examinations were from 17.09.2012 to 27.09.2012. He deposed that both Mohd. Hussain and Mohd. Javed came to him till 18.09.2012. Thereafter, they stopped coming there. He deposed that parents of the accused persons told him about false implication of the accused persons in this case.
92. In cross-examination, it has come that DW-3 has no documentary proof of giving tuitions to both these accused.
SUBMISSIONS OF THE PARTIES
93. I have heard Sh. D.K. Singh, learned Addl. PP for the State and Sh. Vipin Chaudhary, learned Counsel for the accused Dharmender, Mamta and Shahnawaz; and Sh. D.K. Sharma, Ld. Counsel for accused Mohd. Hussain and SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 31 of 41 Mohd. Javed.
94. Learned Addl. PP submitted that prosecution has proved the charges beyond all reasonable doubts. He referred to evidence of PW-1 and PW-2. He contended that testimony of PW-2 Smt. Ritu Kaushik is trustworthy and reliable. He argued that CDRs show complicity between all the accused persons. He also referred to recovery of mobile phone and money from accused persons. He also referred to testimonies of investigation witnesses and submitted that they also corroborate evidence of PW-1 and PW-2. He prays for conviction.
95. On the other hand, learned Counsels for the accused persons vehemently submitted that all the accused have been falsely implicated. Learned Counsels for Mohd. Javed and Mohd. Hussain submitted that they were not present at the scene of crime as they were in their school. They also submitted that there was no recovery from them nor any weapon was recovered from them. They also submitted that identity of the accused persons has not been properly established. They also submitted that accused persons were shown to the witnesses prior to TIP and, therefore, accused persons had refused to join judicial TIP. They contended that evidence of PW-1 and PW-2 is full of contradictions and are not reliable.
96. I have considered the submissions.
FINDINGS SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 32 of 41
97. The prosecution was required to prove the ingredients of the offences. On the basis of the submissions of the parties, the following points for determination arise in the present case:
a). Whether identity of the accused persons has been duly established?
b). Whether evidence of PW-2 is reliable and credible?
98. All the points for determination are taken up together.
99. PW-2 is Smt. Ritu Kaushik is only eyewitness of the incident. Her mother-in-law Smt. Leela Devi could not be examined as she expired before coming to witness-box. PW-1 Sh. Sunit Kaushik is the husband of PW-1 but he had reached the spot of incident later.
100. PW-2 has deposed in detail about the incident. She has narrated how the offenders entered into her house, took her mother-in-law and herself as hostage and committed dacoity. She has identified her jewellery articles in judicial TIP which articles were recovered from house of absconding accused Akram. She has also duly identified all the five accused persons. From photographs Ex.PW1/P-6 to P-16, it is manifestly clear that incident had happened in the house of PW-2. The photographs corroborate the fact of happening of the incident.
101. Perusal of evidence of PW-2 shows that she has identified all the five accused persons i.e. Dharmender, Shahnawaz, Mamta, Mohd. Hussain and SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 33 of 41 Mohd. Javed. Whether identification of these accused persons by PW-2 is reliable or not is the question to be answered by this Court.
102. Learned defence counsels vehemently submitted that PW-2 has given different versions about the number of persons who committed the offence. They pointed out that in the FIR, she stated that one girl and two boys came initially and thereafter one more boy came there. She improved upon this version later and told that one more boy had also come. They further pointed out that in the witness-box, PW-2 stated that one girl and one boy had come initially and later two or three boys had come. Thus learned counsels submitted that evidence of PW-2 is full of contradictions and must be discarded.
103. It is settled law that all contradictions and discrepancies are not to be considered as relevant. Only major contradictions and discrepancies merit consideration. Regarding contradictions and discrepancies, the Hon'ble Apex Court has laid down, in catena of judgments, that only major contradictions and discrepancies need be considered. Minor discrepancies are to be ignored. Reference may be made to (2011) 6 SCC 279 A. Shankar v. State of Karnataka wherein it was observed as follows:
"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 34 of 41 embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety."
104. In my view also, the mental state of PW-2 cannot be ignored. She was in extreme shock after the incident. Any person would be in such shock and fear after such a horrible crime. No doubt initially she told there were four offenders but she corrected her version and recollected that there was one more. She recollected so at the time of preparation of sketches. It is to be noted that PW-2 could clearly define the role of each of the offenders. Thus this discrepancy is not of any benefit to the accused persons.
105. As far as discrepancy which cropped up in the witness-box is concerned, it has to be ignored because it is to be taken as error of memory - and memory about a horrible crime. It was visible that PW-2 was still in shock and fear while deposing in the court. What has to be appreciated is that despite all this, she duly identified each of the accused with their roles. This lends credibility to her evidence. This court will not discard her evidence on these counts.
106. Learned counsels also pointed out that PW-2 told that mole was on right side of accused Shahnawaz whereas it is actually on left side. They contend that this must also lead to rejection of evidence of PW-2.
107. This contention also has no force. When PW-2 says the big mole was on right side, she stated so as she saw it. The big mole is on left side of SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 35 of 41 accused Shahnawaz. To other person, it will appear on right side i.e. right side of the person seeing it. It was in this context that PW-2 stated that big mole was on right side. Thus there is no discrepancy. Moreover, it stands established that there was a big mole on the face. This is enough.
108. Mobile phone belonging to mother-in-law of complainant/PW-2 was recovered from PW Mohd. Sadiq. He told that it was given to him by accused Shahnawaz. Evidence of PW Mohd. Sadiq is found reliable. He had no reason to falsely implicate accused Shahnawaz. The defence was unable to establish any such fact. Shahnawaz is the person who has big mole on his face. Shahnawaz had disclosed about other offenders. The other offenders have been duly identified by PW-2. Thus it is proved that it was Shahnawaz who had handed over the phone to Mohd. Sadiq.
109. Prosecution has heavily relied upon CDRs to establish presence of the accused persons at the place of occurrence.
110. As per prosecution, accused Shahnawaz was using mobile no. 9958063822, which was recovered from his personal search at the time of his arrest. According to his CDR, he on 17.09.2012, on the day of commission of the offence, talked with accused Dharmender at 11:21 am on his mobile no. 9871219164. Further, he talked with accused Javed at 12:40 pm on his mobile no. 9250551106.
111. As per prosecution, accused Dharmender was using mobile no. SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 36 of 41 9871219164, which was issued in the name of his elder brother Sunil Kumar by Airtel Company. He was also in continuous contact with accused Mamta on 17.09.2012, the day of commission of offence, on her mobile no. 9718531692 from 14:18 hrs. to 15:49 hrs. Further, the location of mobile no. 9718531692 is Rohtas Nagar, Shahdara, Delhi.
112. As per prosecution, accused Akram was using mobile no. 9368668338, which was issued in his name. On 17.09.2012, he talked with accused Mamta on her mobile no. 9718531992 at 4:03 pm and 5:50 pm after committing the offence.
113. As per prosecution, the location of mobile no. 9313824211 used by accused Mohd. Hussain is East Gorakh Park, Main Road, Babarpur, Delhi; location of mobile no. 9250551106 used by accused Javed is Rohtas Nagar, Babarpur, Delhi; and location of mobile no. 9718531692 used by accused Mamta is Naveen Shahdara, Delhi. This shows their presence at the place of occurrence.
114. As per prosecution, all the accused persons were in contact with each other through the above mentioned mobile numbers.
115. Learned defence counsels submitted that no witness has specified as to which accused was using which phone number and in the absence of such evidence, the mobile numbers cannot be connected with the accused persons.
116. To some extent, contention of learned counsels is correct. The SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 37 of 41 investigating officer who was the best person to throw light on this aspect did not depose in this regard. He merely deposed that he had collected some CDR's. The learned prosecutor who examined the witness also did not take care to elicit this information from him. This carelessness on the part of the prosecutor cannot be appreciated. My learned predecessor had called the investigating officer to explain the same while preparing statements of accused persons. The IO filed a report explaining which accused was using which number. Accordingly, questions were put to the accused persons in their statements u/s. 313 CrPC. But in my view, this was not enough. The IO should have deposed specifically about this aspect in the witness-box so that the accused persons could get opportunity to cross-examine him in that regard. Without affording such opportunity, the CDR's are of no value.
117. However, by discarding CDR's, the entire prosecution case does not get thrown away. Evidence of PW-2 alone is sufficient to establish the presence of the accused persons and their roles. CDR's were merely corroborative material. However, evidence of PW-2 does not require any corroboration.
118. Learned counsel for Shahnawaz argued that Shahnawaz had refused to join TIP as he was shown to PW-2. He pointed out that PW-2 has admitted seeing Shahnawaz in the police station. He thus contended that identity of Shahnawaz is not duly established.
119. There is no weight in this contention. PW-2 had seen accused SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 38 of 41 Shahnawaz after he had refused to join TIP. He was taken to police station after his production in the court and after he had refused to join TIP there. He was taken on police remand to police station and it was then that PW-2 had seen Shahnawaz.
120. Learned counsels made similar submissions regarding other accused persons and submitted that they also refused to join TIP as they had been shown to PW-2.
121. Again there is no substance in these submissions. It is to be noted that these four accused persons had themselves surrendered before the court and it was after their arrest in the court that they refused to join the TIP. There was no opportunity for police officials to show these accused persons to the complainant. These contentions are also rejected.
122. Learned counsels argued that PW-2 had identified accused persons in the court at the instance of the IO. They also contended that identification in the court is weak evidence.
123. These contentions also merit rejection. When accused persons themselves had refused to join judicial TIP, that too without any justified reason, now they cannot complain that identification by complainant in court is weak evidence.
124. Some jewellery articles were recovered from house of Akram who is absconding. Those articles have been duly identified by the complainant. Thus SC No. 44381/2015 State Vs. Dharmendra Kumar & Ors. Page 39 of 41 link is established between Akram and other accused persons. Fact of involvement of accused persons is also fortified by this piece of evidence. Though mother of accused Akram turned hostile regarding recovery, which is understandable, but there is evidence of the other witnesses to prove the recovery and which is found reliable.
125. Lastly, learned counsels for accused Mohd. Hussain and Mohd. Javed referred to testimonies of DW's and submitted that both these accused were in their school at the time of the offence. They referred to attendance register Ex. DW1/A and B.
126. It is appearing from Ex.DW1/A and B that both these accused had attended school on 17.09.2012 and 18.09.2012. However, what is also appearing from testimony of DW-1 is that it was examination on those days and the examination was over by 12.30 pm. The offence took place at about 4:00 pm. Thus it was not impossible for them to reach at the scene of crime. It is further appearing from attendance register that these two accused did not go to school after 18.09.2012 and ultimately their names were struck off. They did not appear in further examination. This conduct is also relevant and goes against them.
127. Further, from evidence of DW-2 Mohd. Altamash, it is appearing that accused Mohd. Javed had not come to school on 18.09.2012. On the contrary, the attendance register shows him present on 18.09.2012. This is also to be taken adversely.
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128. Evidence of DW-3 is not of any use. He could not show any documentary proof of giving tuitions to both these accused. He is attempting to create defence for these accused.
129. What weighs in the mind of this court is that fact that PW-2/ complainant who comes from a noble background has got no reason whatsoever to falsely implicate any of the accused. She did not have enmity with any of them. She had witnessed the crime and had good amount of time to see the offenders. Thus identification of accused persons by her cannot be doubted.
130. It has been proved that all these five accused namely Dharmender, Shahnawaz, Mamta, Mohd. Hussain and Mohd. Javed committed dacoity in the house of PW-2 on 17.09.2012. All the accused are hereby held guilty and convicted for the offence punishable u/s 395 IPC. There is no need to convict accused Shahnawaz for the offence u/s 412 IPC. Further, the knife stated to have been allegedly used in the commission of dacoity has not been recovered. Therefore, it is not clear whether it was a deadly weapon or not. Thus Sec. 397 IPC cannot be invoked against accused Mohd. Javed. All the accused persons are convicted accordingly.
131. Let all the convicts be heard on sentence.
Digitally signed bySANJAY BANSAL
Announced in Open Court SANJAY Location:
on 11th day of September, 2018. BANSAL Karkardooma Court
Date: 2018.09.17
15:43:52 +0530
(Sanjay Bansal)
Special Judge (NDPS)/ASJ/
NE/KKD Courts: Delhi.
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