Delhi District Court
State vs Zakir @ Nasir on 1 February, 2019
IN THE COURT OF SHRI SANJEEV KUMARII,
ADDITIONAL SESSIONS JUDGE5, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
SESSION CASE NO. 1716/2016
IN THE MATTER OF:
State
VERSUS
1. Zakir @ Nasir
S/o Sh. Mohd. Anwar
R/o A119, Sangam Vihar, New Delhi
2. Israil @ Ajay Bidhuri @ Ajay
S/o Sh. Shahabuddin
R/o Vill Samana Kamruddin Nagar,
Distt. Ghaziabad, UP
3. Om Shiv @ Kalu
S/o Sh. Pyare Lal,
R/o D3/155, Shiv Durga Vihar,
Badarpur, New Delhi
Date of Institutions : 21.01.2009
Date of Arguments : 22.11.2018
Date of Orders : 01.02.2019
JUDGMENT
The case of prosecution is that after receiving DD No.19A dated 06.07.2008 regarding robbery by four armed boys, Assistant SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.1 of 49 Sub Inspector Rambhool Singh along with Constable Azad reached at the spot i.e., B39A, Kalkaji, New Delhi where many persons were found to be gathered. At the said address/spot, there is a shop of TV, Fridge and watches in the name of M/s Thukral Time Centre. Shop owner Naresh Chand Thukral, his son Aman Thukral and sixseven other employees were present there but at that time none of them had given their statement. On inquiry from crowd present there and from the spot, it was found that some boys aged about 2530 years entered into the said shop with khukari and desi kattas and they had taken cash and jewellery from the shop owner and other persons after threatening them with the help of weapons. Someone had told the number of said boys to be twothree and some other one had told the number of said boys to be threefour. On the basis of said facts/inquiries, FIR No.317/2008 was registered on 06.07.2008 in the police station Kalkaji under Section 392/34 of the Indian Penal Code (in short 'IPC').
2. On 31.07.2008, accused Zakir @ Nasir was arrested by Special Staff, South District, New Delhi in FIR No.407/2008, Police Station Sangam Vihar and he made disclosure statement that he along with his companions namely Om Prakash @ Bunty, Rajesh @ Panni, Om Shiv @ Kalu and Israil @ Ajay Bidhuri @ Ajay committed offence of the present case. Accused Zakir @ Nasir was arrested on 26.08.2008 in the present case also. It was found that Om Prakash @ Bunty and Rajesh @ Panni had been killed in police encounter. Dead SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.2 of 49 body of said two persons were identified by Aman Thukral stating that they are the persons who along with other persons committed robbery on 06.07.2008 in his shop. Accused Zakir @ Nasir had got recovered stolen article i.e., one chain along with locket from Village Mehmoodpur, District Hardoi. Said chain along with locket was identified by Aman Thukral in test identification parade on 16.09.2008. On 19.09.2008, accused Israil @ Ajay Bidhuri @ Ajay was also arrested. Accused Om Shiv @ Kalu was also arrested in the present case on 01.11.2008.
3. After conclusion of investigation, police report/ chargesheet under section 173 of the Code of Criminal Procedure, 1973 (in short 'Code') was filed against the accused persons namely Zakir @ Nasir, Israil @ Ajay Bidhuri @ Ajay and Om Shiv @ Kalu for the offences punishable under Section 395 and 397 IPC before the learned Metropolitan Magistrate. The learned Metropolitan Magistrate committed the case to the Court of Session.
4. Vide order dated 16.05.2009, charge was framed against the accused persons namely Om Shiv, Israil and Zakir for the offence punishable under Section 395 IPC. Charge for the offence punishable under Section 397 IPC was also framed against the accused Om Shiv. Further charge for the offence punishable under Section 412 IPC was framed also against the accused Zakir.
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5. The prosecution examined twenty six witnesses, namely, Aman Thukral (PW1), Naresh Chander (PW2), Ms. Surya Malik Grover (PW3), Dr. Sanjeev Lalwani (PW4), Dr. Manish (PW5), Head Constable Manohar Lal (PW6), Inder Lal (PW7), Head Constable Shyamveer (PW8), Head Constable Harish Chandra (PW
9), Head Constable Ambrish Kumar (PW10), Sub Inspector Ram Bhool Singh (PW11), Constable Pradeep (PW12), Sub Inspector Dharampal (PW13), Inspector Ashok Kumar (PW14), Assistant Sub Inspector Khem Singh (PW15), Sub Inspector Jeet Singh (PW16), Head Constable Sanjeev (PW17), Dr. Arvind Kumar (PW18), Inspector Atar Singh (PW19), Sub Inspector Gajender Singh (PW
20), Dhani Ram (PW21), Head Constable Subash Chand (PW22), Head Constable Ashok Kumar (PW23), Inspector Swadesh Prakash (PW24), Shri Ajay Garg ACMM (PW25) and Head Constable Parmender Singh (PW26). The statement of the accused persons were recorded under section 313 of the Code and they stood by their denial in their said statement. The accused persons examined no witness in their defence.
6. Shri Nischal Singh, learned Additional Public Prosecutor has submitted that prosecution has examined twenty six witnesses and all of the witnesses have fully supported the case of prosecution. PW 21 Dhani Ram has described the role of the accused persons and he has identified the accused Zakir and Israil. PW2 Naresh Chander has SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.4 of 49 identified accused Om Shiv. Case property has also been identified by the prosecution witnesses and therefore, accused persons may be convicted of the charge.
7. On the other hand, Shri Nitin Rai Sharma, learned Amicus Curiae appearing for the accused persons Om Shiv and Israil has submitted that there is delay of two hours in registration of FIR. In DD No.19A dated 06.07.2008, name of the caller and his mobile number has not been mentioned. It is mentioned in rukka Ex.PW11/A that no witness came forward to state the incident. FIR was registered on the basis of DD No.19A. The statement of Aman Thukral was recorded by the police on the next day of alleged incident i.e., on 07.07.2008. The statement of father of Aman Thukral was recorded on 08.07.2008. There is no injury received by Aman Thurkral and Naresh Chand Thukral. PW1 told the date of incident is 04.07.2008 whereas date of incident is 06.07.2008. As per prosecution story, there were five accused persons and two were died in police encounter. But PW1 Aman Thukral did say nothing about fifth accused. The articles which have been shown, but not the same and they have been planted upon the accused. Figure of stolen money are different. It has not been proved by the prosecution as to from where the amount which was stolen came from. Invoice etc. of the stolen jewellery have not been proved. TIP of accused Israil is of no consequence because PW2 Naresh Chand Thukral has deposed that accused was shown to him in SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.5 of 49 the police station. Police has implicated accused persons falsely to solve the case.
8. Shri Nitin Rai Sharma has further submitted that PW21 Dhaniram deposed that one accused was in muffled face and he brought the new story. Other persons were also present at the spot as stated by PW21 but same have not been examined by the prosecution. PW1, PW21 have stated different stolen amount. Police immediately reached at the spot but statement of the witnesses were recorded on 08.07.2008 and not on the same day. PWs1, 2 and 7 did not identify the accused persons but PW21 identified the accused persons. Pws1, 2 and 7 did not depose that PW21 was also threatened.
9. Shri Nitin Rai Sharma has further submitted that PW21 says that accused Om Shiv was having pistol but PW1 says that the said accused was having knife but prosecution did not cross examination PW1 and PW21 on this contradiction. PW21 did not mention the name of the Praveen Garg. The said Praveen Garg has also not been cited as witness by the prosecution. No CCTV footage/photographs of the alleged incident has been filed by the prosecution. There are improvement in the testimony of PW21. PW 21 had attributed the role of the accused persons after seven years of the incident at the time of his deposition but he had not attributed the said role in his statement under Section 161 of the Code. There were SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.6 of 49 twothree criminal cases against the accused persons prior to the present case and their photos were published in the newspaper and television and due to said reason, TIP was refused by them. Constable Azad has not been cited as a witness and has not been examined by the prosecution. PW11 SubInspector Ram Bihari has stated about Khukhri but PW1, PW2, PW7 and PW21 did say nothing about Khukhri and desi katta and they stated about pistol which was having by the accused persons at the time of incident.
10. Shri Chandan Malik, learned Amicus Curiae appearing for the accused Zakir has submitted that PW1 did not identify the accused Zakir. No prosecution witness had identified the accused Zakir in the Court during deposition. In Test Identification Parade also, accused Zakir could not be identified by the witness. As per PW1, there were four accused persons but as per PW2, there were five accused persons and as per PW7 only one accused came in the shop. Role of all the accused persons have not been prescribed by the prosecution witnesses. The accused persons have been falsely implicated in order to solve the case. PW1 Aman Thukral has not examined case property properly in the court. No Sarpanch of the village and neighbourer were joined by the police at the time of alleged recovery of the chain. No site plan of the place of recovery of the said chain has been prepared by the police. There is no investigation that accused Zakir was having exclusive possession of SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.7 of 49 the house from where the chain was recovered. The prosecution witnesses themselves say that photo of the accused persons were shown to the public at large in television and media and therefore, refusal of TIP by the accused persons is of no consequences. PW2 deposed in cross examination that he identified the accused Israil in the police station and therefore, no adverse inference can be drawn in respect of refusal of TIP by him. There is no denomination of currency notes. No chance print and finger print from the shop were taken by the crime team. There is no case of prosecution that accused persons were wearing gloves in their hands. No shop owner situated near the spot have been called to record their statements. No customer was examined by the police/prosecution. The statement of public witnesses were recorded only after two days of the incident. There is no recovery of the knife or pistol and therefore, offence under Section 397 IPC has not been proved. In respect of bag only PW7 deposed but PW1 and PW2 did not depose in that regard. When accused persons gave disclosure statements to PW20 in other case on 01.08.2008 then why accused was arrested after 25 days. The recovery memo could have been countersigned by the police officer of nearer police station where recovery was effected. No pistol or knife was produced in the Court to show the prosecution witnesses.
11. Before appreciation of evidence, I want to mention the law regarding improvement, contradictions and discrepancies which may SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.8 of 49 occur in the deposition of witnesses. Hon'ble Supreme Court has held in State of Madhya Pradesh v. Dal Singh & Ors., Criminal Appeal No.2303 of 2009 decided on 21.05.2013 at para no. 7:
"So far as the discrepancies, embellishments and improvements are concerned, in every criminal case the same are bound to occur for the reason that witnesses, woing to common errors in observation, i.e., errors of memory due to lapse of time, or errors owing to mental disposition, such as feelings shock or horror that existed at the time to occurrence.
The court must form its opinion about the credibility of a witness, and record a finding with respect to whether his deposition inspires confidence. "Exaggeration per se does not render the evidence brittle. But it can be one of the factors against which the credibility of the prosecution's story can be tested, when the entire evidence is put in a crucible to test the same on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of a statement made by the SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.9 of 49 witness at an earlier stage. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, ie., which materially affect the trial, or the core of the case of the prosecution, render the testimony of the witness as liable to be discredited."
12. In State Represented by Inspector of Police & another v. Saravanan, (2008) 17 SCC 587, Hon'ble Supreme Court held that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety.
13. In Sunil Kumar Sambhudayal Gupta (Dr.) and others v. State of Maharashtra, (2010) 13 SCC 657, while dealing with the issue of material contradictions, the Hon'ble Supreme Court held that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially alter the trial; minor contradictions, inconsistencies, embellishments or improvements on trivial matters without affecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety; the courts have to label SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.10 of 49 the category to which a discrepancy belongs, while normal discrepancy do not corrode the credibility of a party's case, material discrepancy do so.
14. Recently, in Mukesh & Anr. v. State for NCT of Delhi & Ors., Criminal Appeal Nos. 607608 of 2017 decided on 05.05.2017, Hon'ble Supreme Court has referred the aforementioned cases i.e. Saravanan (supra) and Sunil Kumar Sambhudayal Gupta(supra) in respect of issue pertaining to contradictions etc..
15. Hence minor contradictions, inconsistencies, 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.
16. As per the charge framed against the accused persons, three accused persons namely Om Shiv @ Kalu, Mohd. Israil @ Ajay and Zakir @ Nasir alongwith two other coaccused who died in police encounter have been charged for the offences of dacoity under Section 395 IPC. Further, accused Om Shiv @ Kalu has been charged for the offence under Section 397 IPC also for using deadly weapon i.e., country made pistol while committing the said dacoity. Further accused Zakir @ Nasir has been charged for the offence under Section 412 IPC also for receiving or retaining stolen article i.e., golden chain SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.11 of 49 with locket.
17. PW1 (Aman Thukral), PW2 (Naresh Chand Thukral), PW 7 (Inder Lal) and PW21 (Dhani Ram) are the eye witnesses/public witnesses.
18. PW1 (Aman Thukral) has deposed that he was running an electronic shop at B39/A Kalkaji in the name of Thukral Prime Center Pvt. Ltd. His father also sat on the said shop, there were seven employees in his shop. He further deposed that on 04.07.2008 he was sitting in his shop, when at around 8:00 pm, four persons entered in his shop, out of them two persons were carrying pistols and other two were having knives in their hands. All of them showed their respective weapons and at the gun point took his golden chain along with pendent, besides taking cash out of his pocket and from the safe of the shop. At that time, there were two customers sitting in the shop. The said boys took the golden bangles of the lady. His neighbour Mr. Parveen Girdhar who was running a Dhaba in the name of Shiv Dhaba was also brought in his shop by one of the boys at the gun point. Besides these four boys he had not seen any other person. He correctly identified the accused Om Shiv and Israil in the court but he could not identify third accused who also entered in his shop alongwith other accused persons. He identified accused Om Shiva as a boy who put knife on his abdomen. He further deposed that accused Om Shiv had SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.12 of 49 snatched his golden chain alongwith pendent from his neck and when he objected for the same his associate put pistol on his head and said "Aap neeche beth jaiya". One boy who was standing in front of his father asked him to handover cash. His father was compelled to give cash approximately Rs.2500030000/ from the locker. After extorting the said cash and golden chain of him, those boys fled away from there.
19. PW2 (Naresh Chand Thukral) has deposed that he was running a shop of Electronics and Watches at B39/A, Kalkaji in the name of Thukral Time Center Pvt. Ltd. alongwith his son Aman Thukral. On 06.07.2008, four persons came to his shop. Two of them were having country made pistol in their hands and two of them were having knives in their hands. It was about 8:15 PM or 8:20 PM. They all threatened them saying that "Jo kuch hai sab nikal kar de do". One of the persons stood at the gate of the shop alongwith weapon in his hand. There were five persons. One person was sat outside the shop. The four accused who entered into the shop robbed cash of Rs. 18,000/ 20,000/ from his pocket and galla (cash box). His son Aman Thukral was wearing a golden chain and one of the accused robbed his golden chain. There were three customers sitting inside the shop and the accused persons also robbed them. They robbed to bangles and Rs. 2,000/ 2,500/. Accused persons had brought one neighbour of his shop who was standing outside of his shop. He was also forced inside SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.13 of 49 his shop and accused persons robbed one golden chain, Rs. 5,000/ and a gold ring at the point of weapon. Accused Israil was standing in front of him and threatening him. Accused Israil was carrying a pistol in his hand. After robbing them, accused persons left on two motorcycles. He deposed that accused persons had robbed gold articles and cash of value of Rs. 1.5 lakhs. He pointed out towards accused Om Shiv and stated that he was having a bag around his neck and was keeping the robbed articles as well as cash in the bag. He deposed that his employees namely Sh. Dhani Ram, Sh. Inder Lal and Sh. Krishna were present in the shop and accused Om Shiv was carrying knife in his hand.
20. PW7 (Inder Lal) has deposed that he has been working at the shop of Sh. Naresh Thukral since 1993. Sh. Naresh Thukral runs a shop of electronics items in the name of Thukral Times Centre at B 39A, Main Road, Kalkaji, New Delhi. There were six / seven other employees who were also working on the said shop. Sh. Aman Thukral is the son of Naresh Thukral. On 06.07.2008, he was present in the shop. There were four / five customers in the shop at the time of incident. It was about 8:00 /8:15 PM. He was seeing match inside the shop on the television, in the meanwhile, one person entered in his shop in muffle face. There were a partition in the shop. The said person asked him to go inside the partition. The said person was carrying pistol but it might be a toy. Sh. Naresh Thukral and his son SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.14 of 49 Sh. Aman Thukral and other employees were also present there in the shop. He saw only one person who entered the shop in muffle face and he could not see other person as he was pushed inside the other portion of the shop. He came to know from Naresh Thukral that some cash has been stolen and after stealing the cash, the said persons fled away from the shop. The police was called by the employer and after some time police also entered. Police did not inquire from him.
21. PW21 (Dhani Ram) has deposed that on 06.07.2008, he was working as a salesman in Thukral Times Centre in Kalkaji which deals in selling of electronic goods. At about 8:15 PM, four persons entered in the shop, one of them has covered his face by a handkerchief. Apart from him, Naresh Chand Thukral, his son Aman Thukral and one employee Inder Lal were present in the shop. There were two three more customers present in the shop. One of those four boys put some weapon on Naresh Chand Thukral. Second person came at his counter and put a country made pistol on his stomach. Third person was having a knife and showed them to scare. The fourth one directed them to sit in a portion of the shop by threatening them to sit there. One of them took out gold chain of Aman Thukral from his neck and from one of customer, his diamond ring was taken away. Another lady customer was robbed of her gold kada and her mangalshutra was also being taken away by threatening to kill her husband. The lady gave the mangalshutra to those persons. The person SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.15 of 49 who had put weapon on Naresh Chand Thukral forced him to give the cash lying in the cash bod which was around Rs. 10,000/ to Rs. 20,000/. Then they all were forced in a corner of the shop and threatened not to raise alarm. One of their associate was standing outside the shop. All of them ran away on their motorcycle which were parked outside. Later on police came and inspected the shop and inquired from him. He narrated all the incident to the police. His statement was recorded by the police on 08.07.2015. PW21 identified accused Israil as the person who had put country made pistol on Naresh Chand Thukral. He also identified the accused Zakir as the person who was having knife and threatening him in the shop and accused Shiv as the person who had put country made pistol on his stomach.
22. PW1 (Aman Thukral) is the son of the PW2 (Naresh Chand Thukral). They both have supported the case of prosecution. They both have deposed that they are running a electronics shop at B 39/A, Kalkaji in the name of Thukral Prime Centre Private Limited. In respect of employees in the said shop, PW1 deposed that there are about seven employees and PW2 says about sixseven employees. PW1 has clearly deposed in respect of incident that on 04.07.2008, when he was sitting in his shop at around 8:00 pm, four persons entered in his shop, out of them two persons were carrying pistol and other two persons were having knives in their hands. He has also SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.16 of 49 clearly deposed that all of them showed their respective weapons and at the gun point took his golden chain alongwith pendent. He has also clearly deposed about taking cash out of his pocket and from the safe of the shop by said accused persons. He has also identified the accused Om Shiv and Israil during trial stating that they entered in his shop with pistols. He has also deposed that accused Om Shiv had put knife on his abdomen. He deposed also that the accused Om Shiv had snatched his golden chain alongwith pendent from his neck and when he objected, his associate put pistol on his head and said "Aap neeche baith jaiye". In respect of taking cash from the locker in the shop, PW1 has deposed that one boy who was standing in front of his father, asked him to hand over the cash and then his father was compelled to give cash approximately Rs.25,00030,000/ from the locker. Hence, PW1 has supported the case of prosecution. But date of incident has been told by him to be 04.07.2008, whereas incident was happened on 06.07.2008. It appears that said date has been typed in the testimony of PW1 due to typographical mistake because nothing has been argued in this regard by learned counsel for accused persons against the case of prosecution in respect of telling date of incident to be 04.07.2008 instead of 06.07.2008 by the PW1. Further learned Additional Public Prosecutor put some leading question to the PW1 on the same date i.e., 18.08.2009 when examinationinchief of PW1 was conducted on the ground that witness was resiling from his previous statement. It appears that said wrong date of 04.07.2008 was SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.17 of 49 not noticed by the learned Additional Public Prosecutor otherwise leading question/cross examination of the PW1 would have been conducted by the Additional Public Prosecutor on the point of date of incident. Hence, I am of the view that said wrong date was written in the examination of PW1 due to inadvertence and it does not go against the case of prosecution particularly when other three eye witnesses (PWs2, 7 and 21) has deposed about date of incident to be 06.07.2008.
23. Testimony of PW1 has been corroborated by PW2 Naresh Chand Thukral on material particulars. PW2 is the father of PW1 and he was running a shop of electronics and watches at the spot i.e., B39/A, Kalkaji, under the name of Thukral Time Centre Private Limited along with his son Aman Thukral (PW1). In respect of number of the accused persons, he deposed that there were five accused in all, out of them four persons came to his shop and one person was sitting outside of the shop. In respect of weapons, he deposed that out of four who entered in the shop, two were having country made pistols in their hands and other two of them were having knives in their hands. In respect of weapons also, PW2 has corroborated the version of PW1. In respect of articles/cash robbed by accused persons, PW2 has deposed that four accused who entered into the shop robbed cash of Rs.18,00020,000/ from his pocket and gala (cash box) and one of the accused persons robbed wearing golden SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.18 of 49 chain from his son Aman Thukral (PW1). PW2 has identified the accused Israil during trial and has stated that he was carrying a pistol in his hand and he was threatening him. PW2 has also identified accused Om Shiv during trial and has stated that accused Om Shiv was having a bag around his neck and was keeping the robbed articles as well as cash in the said bag. He has also deposed that accused Om Shiv was having knife in his hand. Learned counsel for accused Om Shiv has submitted that there are contradiction in the testimony of PW1 and PW2 in respect of weapon which was carrying/having by the accused Om Shiv at the time of incident because PW1 says that accused Om Shiv was having pistol but PW2 says that he (accused Om Shiv) was having knife in his hand. This contention of learned counsel is not of much important because four accused persons entered in the shop of PW1 and PW2 suddenly and they were having weapons in their hands and therefore, it is possible that due to fear etc., they could not remember the entire facts correctly. Further in this regard, it is also seen that at one place of examination in chief of PW 1, he states that accused Om Shiv entered into his shop armed with pistol but at other place he states that accused Om Shiv put knife on his abdomen.
24. PW1 and PW2 have been cross examined by the accused persons but nothing has been come against the case of prosecution. He (PW1) has denied the suggestion that no such incident ever happened SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.19 of 49 or incident is cooked up story or that nothing was robbed him or his father. He has also denied the suggestion that he had identified two of accused persons during trial at the behest of police. He has also denied the suggestion that he had already seen the photographs of accused on newspaper or other electronic media or he has named the accused persons on the asking of police.
25. In his cross examination, PW2 has admitted that he had not given any description of any of the accused persons in his statement recorded by the police. Non giving the description of the accused persons by PW2 in his said statement is not fatal to the case of prosecution. He had denied the suggestion that he had identified the accused Israil at the instance of the Investigating Officer. PW2 has stated in his cross examination that his statement was recorded by the police on the day of incident at the police station on 06.07.2008. The said statement dated 06.07.2018 was not found in the judicial file. The only one statement of PW2 dated 08.07.2008 under Section 161 of the Code was found in the file. He has further stated in his cross examination that no cash book or day book was handed over by him to the police to show that any amount of cash was robbed from his shop. He has denied the suggestion that no such incident had taken place in his shop either with him, his son or any customers. He has also stated in his cross examination that he had opened his shop on 08.07.2008 as on 07.07.2008, their market association had declared strike due to said SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.20 of 49 incident.
26. Testimony of PW1 and PW2 have been corroborated by the PW21 (Dhani Ram). He specifically stated about working as a salesman in the said shop of PWs 1 and 2 on the day of incident, entering into the said shop by four persons and presence of PWs 1, 2 and 7 in the said shop at the time of entering by four persons. He also clearly stated regarding putting some weapons on PW2 by one of said four persons and putting country made pistol on his stomach. He has also clearly stated about showing the knife them by the third one. He has also clearly stated regarding taking of gold chain from the neck of PW1. He has clearly stated about putting the weapon on the PW2 and forcing him to give the cash lying in the cash box around Rs.10,000 20,000/. He has also clearly stated regarding fifth accused who was standing outside of the said shop. He has identified accused Israil as a person who had put country made pistol on PW2. He has also identified the accused Zakir as a person who was having knife and threatened them in the shop. He has also identified accused Om Shiv as the person who had put a country made pistol on his stomach. Hence, he has clearly described the role of the accused persons by identifying them and supported the case of prosecution on material particulars. Nothing has been come in his crossexamination against the case of prosecution.
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27. In crossexamination of PWs1, 2 and 21, when some facts stated by them in examinationinchief were contradicted to there previous statement recorded by police during investigation, same were not found to be recorded. But these are of no help of accused persons because same can be said to elaborated form of their previous statements. In this regard case of Sheikh Juman & Anr. Etc. v. State of Bihar (Criminal Appeal No 484487) decided on 23.02.2017, can be referred wherein Hon'ble Supreme Court held/observed:
"14. Mr. Huzefa Ahmadi, learned senior counsel for appellants contented that both the Courts below have committed an error in convicting the appellants for theoffence punishable under Section 302 IPC, alongwith other accused. He submitted that there were material improvements made by PW14 in his deposition when compared to the fardbeyan given to the police on the date of the incident and no specific role has been attributed to the present appellants. But after careful analysis of the fardbeyan (Ext.7), we have an entirely different opinion. It is true that deposition is somewhere literally larger than the fardbeyan, however, it is no where contrary to it. It may rightly be said that the deposition of PW14 SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.22 of 49 is merely elaborated form of statement recorded before the police, with minor contradictions. Oral evidence of a witness could be looked with suspicion only if it contradicts the previous statement."
28. In respect of identification of the accused persons by the public witnesses, learned counsel for the accused persons have submitted that PW2 has admitted in his crossexamination that after the incident, he was called in the police station for identification of the accused and he had identified one of the accused Israil in the police station. In this regard, it has also been submitted that photo of the accused persons were shown in newspaper and electronic media and therefore, accused Israil and Om Shiv had refused to participate in their respective TIP proceedings. It is correct that PW2 has stated in his cross examination that after the incident, he was called in the police station for identification of the accused and he had identified one of accused Israil in the police station. But it is not clear as to whether he had identified the accused Israil in the police station prior to his TIP conducted by the learned Metropolitan Magistrate or thereafter and therefore, from said testimony of PW2, it cannot be said that prior to his TIP, accused Israil was shown to him in the police station. If accused Israil has been shown to PW2 in the police station after TIP, then it is of no consequences. Further PW2 has SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.23 of 49 denied the suggestion that he identified the accused Israil at the instance of the Investigating Officer. He has also denied the suggestion that the accused persons have been identified at the instance of police officer. In this regard, PW1 (Aman Thukral) has accepted the suggestion in his cross examination that some photographs of suspects were shown to him in the police station, but none of these photographs were belonging to the offenders of this case. He has also denied the suggestion that he had identified two of accused in the court at the behest of the police. He has denied the suggestion that he had already seen the photographs of the accused persons in newspaper and other electronic media. He has also denied the suggestion that he had named the accused persons on the asking of police. Both PW1 and PW2 have stated that they have attended the court in this case about 20 times and they saw accused persons on those dates. PW1 and PW2 are the victims in the present case and they may appear in the court during the trial and if they have seen the accused persons during the said their visits in the Court, it cannot be said to be fatal to the case of prosecution. In so far as cross examination of PW21 is concerned, he had stated in this regard that he had seen accused persons of his own outside the court on 23.04.2015 (the date when his examinationinchief was recorded) but Investigating Officer of the case did not tell him anything about the accused persons. PW21 is also one of the eye witness and if he appears in the Court for the purpose of giving his evidence and if SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.24 of 49 accused persons are present then he can see them outside or inside the court. Merely because he has seen the accused persons outside the court when he comes for the purpose of evidence, same cannot be said to be fatal to the case of prosecution.
29. PW1, PW2 and PW21 have also deposed that some articles were also taken out by the accused persons at the time of said incident from some customers and one neighbourer Praveen Giridhar. But prosecution has failed to prove the said dacoity from the said customers and neighbourer Praveen Girdhar because no said person was examined by prosecution. Apart from that, no charge was framed in respect of property looted from said persons.
30. In respect of arrest of accused Zakir @ Nasir, PW8 (Head Constable Shyamveer) has deposed that on 31.07.2008, he was posted as Head Constable in special staff, SouthDistrict and on that day, he alongwith SubInspector Yashvir Singh, SubInspector Jeet Singh, Head Constable Rajesh Kumar, Head Constable Vijay Hooda, Head Constable Paramjeet, Constable Vijender, Constable Rajvir and Constable Mukesh were in Government Vehicle TATA 407 driven by Assistant SubInspector Mahender Kumar and they were busy in investigation of case FIR No. 364/08 under Section 302/34 IPC, Police Station Sangam Vihar. They all reached at railway bridge near Pul Prahlad Pur and thereafter, they took the position. Investigating SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.25 of 49 officer constituted three teams. On that day, on receiving secret information, Investigating officer SubInspector Aishbir Singh made a trap at the abovesaid case and started to check the persons and vehicles. In the meantime, one red colour motorcycle was coming from the side of Badarpur and at the instance of informer, Investigating Officer tried to stop the motorcycle. But the said motorcycle driver did not stop there and in fact enhanced the speed. So the third team who was with TATA 407, government vehicle put their vehicle in front of the said motorcycle, so motorcycle slipped/fell down with two persons. He apprehended one boy with the help of SubInspector Jeet Singh whose name was subsequently revealed as Nasir @ Zakir. Investigating Officer arrested accused Zakir @ Nasir in case FIR No. 407/08, Police Station Sangam Vihar. Testimony of PW8 has been corroborated by the PW16 (SubInspector) Jeet Singh. PW8 and PW16 has been cross examined by the accused persons but nothing has been come against the case of prosecution and therefore, it has been proved that accused Zakir @ Nasir was arrested on 31.07.2008 by the police party in case FIR No. 407/08 Police Station Sangam Vihar.
31. After arrest of the accused Zakir @ Nasir in case FIR No. 407/08, Police Station Sangam Vihar, he was arrested in the present case and in this regard, testimony of PW9 Head Constable Harish Chandra and PW20 SubInspector Gajender Singh can be referred.
SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.26 of 49 PW20 has deposed in this regard that on 01.08.2008, an information was received that one accused Zakir was arrested by special staff who had disclosed his involvement in the incident of the present case. On 26.08.2008, he alongwith Harish Chandra (PW9) reached at Patiala House Courts and arrested accused Zakir in the present case after taking permission from the Court. PW9 has also corroborated this testimony of PW20.
32. In respect of recovery of golden chain alongwith pendent, PW20 (SubInspector Gajender Singh) has deposed that on 03.09.2008, he obtained five days police custody of accused Zakir and during interrogation, he disclosed that he had kept the golden chain at Mohammadpur, Hardoi, Lucknow, Uttar Pradesh. He alongwith Constable Pradeep, Constable Amrish and accused Zakir reached at village Mohammadpur and from the house of Rajesh chholewala, a friend of accused Zakir, accused Zakir got recovered one golden chain, a locket of mark A on it. The chen was kept in a pullanda and sealed with the seal of 'GS' and seized vide seizure memo Ex.PW10/A bearing his signatures at point C. He recorded disclosure statement of accused Zakir which is Ex. PW10/B. They returned to Police Station Kalkaji and got the pullanda of chain deposited in Malkhana.
33. PW20 was cross examined on behalf of the accused Zakir @ Nasir in respect of said recovery but nothing has been come against SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.27 of 49 the case of prosecution. He has deposed in his cross examine that he had taken permission from the ACP Rakesh Pawariya for going to Hardoi, Lucknow, UP but he could not place the copy of such permission on judicial file. He could not remember what was the police station of area of village Mahmoodpur. He did not veriy from the other villagers regarding the ownership of the house from where chain was recovered. He did not join any person from the said village including, Numberdar, Sarpanch, Chaukidar, Panch and other local resident during the recovery proceeding of the chain. He could not remember the exact number of the rooms in the said house but probably a single storery house and same was an open house and not occupied by anyone. No police official from the local police station was present during the proceedings. He did not take any photograph of the said house. He did not get the weight and measurement of chain nor he got any sketch of the chain and pendent prepared. They left from the said village for Delhi in the evening around 07:00 PM. The pulanda of case property remained in his custody and he had not deposited in the local police station. In my view, these all are irregularities and do not go to the root of the case. He denied the suggestion that no disclosure statement was given by the accused Zakir @ Nasir. He has also denied the suggestion that no recovery was got effected by the accused Zakir from the said village.
34. PW10 (Head Constable Amrish Kumar) has deposed in this SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.28 of 49 regard that on 05.09.2008, he alongwith Investigating Officer, Sub Inspector Gajender Singh, Constable Pradeep and accused Nasir had gone to Village Mahmoodpur, District Hardoi, Uttar Pradesh. Accused Nasir led them to the house of his associates Rajesh and got recovered one bag kept on the slab (tand) in a room of the house of Rajesh. The accused Nasir took out one gold colour chain alongwith locket upon which 'A' alphabet was engraved, from the bag and produced the same to the Investigating Officer. The Investigating officer prepared pullanda of the recovered gold chain and sealed with seal of GS and took into possession of the same vide pointing cum seizure memo Ex. PW10/A. The Investigating Officer had also recorded the supplementary disclosure statement of accused Nasir which is Ex. PW10/B.
35. PW10 has identified the accused and gold colour chain with locket on which word 'A' was engraved. The chain and locket have been identified as Ex.P1. He was cross examined by the learned counsel for the accused Zakir @ Nasir but nothing has been come out against the case of prosecution. He has denied in the cross examination that no police team had ever visited to village Mahmoodpur in connection with the investigation of this case. He has also denied the suggestion that no gold chain and locket with alphabet 'A' was got recovered by the accused Zakir @ Nasir. He has also denied the suggestion that the chain and locket had been planted upon SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.29 of 49 the accused.
36. PW12 (Constable Pradeep) has also been examined by the prosecution in respect of recovery of chain and locket. He has also corroborated the version of PW10 and PW20 with regard to the said recovery. He told the name of police official and accused who went to village Mahmoodpur. He has also stated that accused Zakir @ Nasir led them at village Mahmoodpur at the house of Rajesh where accused Zakir @ Nasir took out a bag and on opening the same, one chain with locket having alphabet 'A' engraved on it golden colour was found. He has also deposed regarding sealing the said recovery and taking into possession vide seizure memo Ex.PW10/A. He identified the accused Zakir @ Nasir. He also identified the said recovery i.e., chain along with locket. He was also crossexamined by the accused Zakir @ Nasir but nothing has been come against the case of prosecution. He has denied the suggestion that the accused Zakir @ Nasir had not led them to the house of Rajesh or got recovered the chain with locket. He has also denied the suggestion that they had not visited to village Mahmoodpur or that all the papers were prepared at the police station.
37. Hence, PWs10, 12 and 20 have deposed regarding recovery of golden chain alongwith pendent at the instance of accused Zakir @ Nasir from the house of friend of Zakir namely Rajesh from village Mahmoodpur, District Hardoi, Uttar Pradesh on 05.09.2008. They SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.30 of 49 have also deposed regarding preparation of seizure memo of the said gold chain alongwith pendent. Said seizure memo has been proved as Ex. PW10/A. Said seizure memo is having signature of PWs10,12 and 20. Said seizure memo goes to show that said golden chain alongwith pendent was got recovered by the accused Zakir @ Nasir from the house of his friend Rakesh which is situated at Mahmoodpur, Hardoi, Uttar Pradesh.
38. Hence, from the testimony of PWs10, 12 and 20, it has been proved that at the instance of accused Zakir @ Nasir, one golden chain alongwith pendent (Ex. P1) was recovered from the house of his friend which is situated at Mahmoodpur, Hardoi, Uttar Pradesh. Said chain along with pendent is admissible under Section 27 of Indian Evidence Act.
39. In respect of identification of said golden chain alongwith pendent (Ex. P1), prosecution has examined Aman Thukral (PW1), SubInspector Gajender Singh (PW20) and Sh. Ajay Garg, Additional Chief Metropolitan Magistrate (PW25). During the examination of PW1, said chain alongwith pendent produced with the seal of 'RRM' was shown to him for the purpose of identification. When the said chain was shown to the PW1, he deposed that he cannot say that it is same which was snatched by the accused. Hence, during deposition in trial, PW1 could not identify the said chain alongwith pendent. But SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.31 of 49 he voluntarily stated that he identified that chain at the time of TIP before the Magistrate. Leading questions were put to him by the learned Additional Public Prosecutor wherein he had accepted that he identified his chain which was snatched by the offenders during TIP conducted by the Magistrate. He has also accepted the suggestion that due to lapse of time, he did not remember the description of his chain. He was also cross examined by the accused persons wherein he could not remember if on the pendent produced before him during TIP of same, "Om" was written on it or not. In said cross examination, he has denied the suggestion that the chain which was identified by him in TIP was not belonging to him or hence he did not hand over any written evidence to Investigating Officer about his ownership of it.
40. In respect of TIP of chain, SubInspector Gajender Singh (PW20) has deposed that on 16.09.2008, TIP of chain was got conducted in the court of Sh. Ajay Garg, Metropolitan Magistrate and he had produced before him complainant Aman Thukral (PW1) and sealed pullanda of chain and other chains for mixing during TIP proceedings. When he was cross examined by accused Zakir @ Nasir, he deposed that he had procured the similar types of chain for mixing for different shops of Delhi. However, he could not tell the name of owner and addresses of the said shop. He could not tell what was the weight and measurement of such chains. In respect of numbers of chain, he has stated that he procured fivesix chain for the purpose of SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.32 of 49 TIP. He has denied the suggestion that TIP of the case property was not got conducted as per the procedure.
41. Sh. Ajay Garg (PW25) has deposed in respect of TIP of the case property that on 11.09.2008 Shri Rakesh Pandit, learned MM marked an application to him for conducting TIP of case property of case FIR No.317/2008, PS Kalkaji. The proceedings were conducting in his chamber. Investigating Officer, Sub Inspector Gajender Singh produced before him a small bag containing some jewellery items which were similar in appearance which were required for mixing up with the case property of this case. Sub Inspector Gajender also produced witness Aman Thukral before him. He recorded statement of Investigating Officer for identifying the witness Aman Thukral. Thereafter, the case property brought by Investigating Officer and the case property of the sealed pullanda of GS was mixed with other jewellery articles brought by the Investigating Officer. Then, witness was called inside the chamber and asked to identify his articles. Witness identified one chain of golden colour belonging to him placed at Sr. No.4 from his left to right and at Sr. No.3 from right to left. Witness correctly identified the case property as his chain. Statement of witness Aman Thukral was recorded. The TIP proceedings drawn by him are Ex. PW25/E. His certificate regarding correctness of the proceedings is Ex. PW25/F. The case property again sealed by his seal of AG.
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42. PW25 was Metropolitan Magistrate on 11.09.2008 when he conducted TIP proceedings. The application for conducting TIP of the case property of the present case was marked to him by Shri Rakesh Pandit, learned Metropolitan Magistrate. He has clearly deposed that Investigating Officer/Sub Inspector Gajender Singh (PW20) produced before him a small bag containing some jewellery items which were similar in appearance which were required for mixing up with the case property of the present case. He has also clearly deposed that the case property brought by PW20 and the case property of sealed pulanda of GS was mixed with other jewellery articles brought by PW20. The witness Aman Thukral (PW1) was called inside the chamber and asked to identify his articles. He has clearly deposed further that the witness had identified one chain of golden colour belonging to him placed at serial no.4 from his left to right and at serial no.3 from right to left. He has clearly also deposed that the witness correctly identified the case property as his chain. PW25 was not cross examined on behalf of the accused persons despite the opportunity being given to them. The TIP proceedings drawn by PW 25 has been proved as Ex.PW25/E. The certificate regarding correctness of the proceedings has been proved as Ex.PW25/F. PW 25 has also proved his signature on TIP proceedings at point A and signature of PW1 at point B.
43. Hence, from the testimony of PW1, PW20 and PW25, I SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.34 of 49 am of the considered view that prosecution has proved that the chain (Ex.P1) which was recovered at the instance of accused Zakir @ Nasir was identified by the PW1 during the TIP proceedings of the said case property. Said chain is the chain which was taken by accused persons during the committing dacoity at the shop pertaining to PW1 and PW2 situated at B39/A, Kalkaji, New Delhi on 06.07.2008.
44. As per case of prosecution, there were five accused persons in the present case but two coaccused persons namely Om Prakash @ Bunty and Rajesh Sharma @ Panni were killed in police encounter in case FIR No. 416/08, Police Station Badarpur. In respect of number of accused persons, Aman Thukral (PW1) has stated that four accused persons were entered in his shop. Naresh Chand Thukral (PW2) has in this regard clearly deposed that there were five accused persons in all, out of them four accused persons entered into the shop and fifth accused was sitting outside of the shop. Dhani Ram (PW21) who was the salesman in the shop of PW1 and 2 has deposed that four persons entered in the shop and one of their associate was standing outside the shop.
45. In respect of Om Prakash @ Bunty and Rajesh @ Panni, PW4 (Dr. Sanjeev Lalwani) has deposed that on 26.08.2008 at AIIMS, New Delhi, he alongwith Dr. Arvind Kumar and Dr. Manish conducted the postmortem examination of deceased Om Prakash @ SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.35 of 49 Bunty and Rajesh @ Panni. The postmortem report of deceased Om Prakash @ Bunty and of Rajesh @ Panni have been marked as Ex.PW4/A and Ex.PW4/B respectively. Dr. Manish Kumath (PW5) has corroborated the testimony of PW4 with regard to postmortem of deceased Om Prakash @ Bunty and Rajesh @ Panni. Dr. Arvind Kumar has also been examined by the prosecution as PW18 and he has corroborated the testimony of PWs4 and 5 in respect of conducting postmortem of dead body of Om Prakash @ Bunty and Rajesh @ Panni. They were not cross examined by the present accused persons namely Zakir @ Nasir, Israil @ Ajay and Om Shiv @ Kalu. PW1 (Aman Thukral) has deposed in this regard that after about 2025 days, he went to Trauma Centre on being called by the police and he identified the dead body of one of the offender in hospital; that his father also accompanied him that hospital; that he could not know name of offender who died. In the leading questions/cross examination put by learned Additional Public Prosecutor, PW1 had admitted that on 26.08.2008, he went to mortuary of Trauma Centre, AIIMS and he identified dead body of one offender. In said cross examination, he further stated that he cannot say that these were two offenders whose dead bodies he identified and not one or that they were known as Om Prakash @ Bunty and Rajesh @ Panni. In respect of this testimony of PW1 regarding dead offenders, nothing has been come in his cross examination done by present accused persons. Further PW9 (Head SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.36 of 49 Constable Harish Chandra) has deposed in this regard that he alongwith Investigating Officer reached at the spot where Aman Thukral joined the investigation with them and thereafter, after taking him, they all reached at AIIMS Mortuary where Aman Thukral (PW
1) identified two dead bodies as Om Prakash & Bunty and Rajesh @ Panni and informed to Investigating Officer that at the time of incident i.e., 06.07.2008, both deceased Om Prakash & Bunty and Rajesh @ Panni entered into his shop alongwith other coaccused persons and at that time, accused/deceased Om Prakash & Bunty was having pistol in his hand and accused/deceased Rajesh & Panni was having knife his hand, committed robbery and threatened him as well as public on the point of knife and pistol. PW9 was not cross examined by the accused Om Shiv and Israil. He was cross examined on behalf of accused Zakir @ Nasir but nothing has been asked in the said cross examination with regard to identification of the deceased coaccused Om Prakash & Bunty and Rajesh @ Panni by PW1.
46. Hence, as per PW1 (Aman Thukral), there were four accused persons who entered into the shop. He has deposed regarding the accused persons entering into the shop. He has not deposed that there were only four accused persons and fifth accused was not sitting outside the shop. As per PW2 (Naresh Thukral), there were five accused persons, out of them four accused persons entered into the shop and fifth accused was sitting outside the shop. Testimony of PW SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.37 of 49 7 (Inder Lal) is not of much importance in this regard. As per PW21 (Dhani Ram), four accused persons were entered into the shop and one of their associate was standing outside the shop. PW4 (Sanjeev Lalwani), PW5 (Dr. Manish Kumath) and PW18 (Dr. Arvind Kumar) have proved the postmortem of accused Om Prakash @ Bunty as Ex. PW4/A and postmortem of accused Rajesh @ Panni as Ex. PW4/B. In this regard, Head Constable Harish Chandra (PW9) has deposed that Aman Thukral (PW1) identified two dead body as Om Prakash @ Bunty and Rajesh @ Panni and informed to the Investigating Officer that at the time of incident, said both deceased entered into his shop alongwith other coaccused persons. Hence, from these testimonies, it can be safely held that at the time of incident, there were five accused persons, out of them, four accused persons entered into the shop and fifth accused was sitting outside the shop and two accused were died later on.
47. Accused Om Shiv @ Kalu, Md. Israil @ Ajay and Zakir @ Nasir alongwith coaccused persons namely Om Prakash @ Bunty and Rajesh @ Panni have been charged for the offence of Dacoity punishable under Section 395 IPC. Offence of Dacoity has been defined in Section 391 IPC which says that when five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.38 of 49 amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity". Prosecution has proved that five accused persons were involved in committing robbery. Out of said five accused persons, four entered in the shop and one was sitting outside the shop.
48. Sub Inspector Ram Bhool Singh (PW11) was posted as Assistant Sub Inspector in Police Station Kalkaji on 06.07.2008 and he was on night emergency duty on that day. He received DD NO.19A. He alongwith Constable Azad reached at the spot where incident was happened. He made endorsement on DD No.19A, which is Ex.PW11/A, same was handed over to Constable Azad and sent him to Police Station for registration of the case. Sub Inspector Dharam Pal (PW13) was posted as Duty Officer in Police Station Kalkaji on 06.07.2008 with duties hours from 04:00 to 12:00 night. He deposed that on that day at about 10:25 PM, Constable Azad came at the police station with tehrir sent by PW11. On the basis of said tehrir, he recorded DD No.20A vide FIR No.317/08, Under Section 392/34 IPC which is Ex.PW13/A. He also made an endorsement on original tehrir which is Ex.PW13/B. After registration of the case, copy of FIR and original tehrir to Constable Azad for handing over to Sub Inspector Gajender for further investigation. PW11 has not been cross examined by the accused persons. PW13 has been cross examined by the accused persons but nothing has been come against SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.39 of 49 case of prosecution. Hence, it has been proved that FIR of the present case was registered by the PW13 at about 10:25 PM on 06.07.2008 on the basis of tehrir brought by Constable Azad and sent by PW11.
49. In respect of arrest of the accused Om Shiv, PW19 Inspector Atar Singh has stated that in the month of October 2008, he was posted as Inspector, Special Cell, Norther Range. On 26.10.2008, Head Constable Dilawar received a secret information about movement of Om Shiv @ Bunty, who was wanted in several cases of murder, dacoity, robbery etc. He was likely to come at his house situated Bapola Vihar, Dass Garden, Delhi in his Maruti Esteem Car No. HR 05P 6597 between 02:30 pm to 03:30 pm having illegal arms in his possession. On this information, a raiding party led by him and comprising Inspector Upender Solanki, Sub Inspector Prahlad Singh, Assistant Sub Inspector Rakesh, head Constable Dilawar, Head Constable Vijender , Constable Rajbir reached near Ganda Naala (drain), Uttam Nagar, Najafgarh Road at about 1:45 pm. At about 02:45 pm, above Maruti Esteem Car was seen coming from Najafgarh Road side. Head Constable Dilawar Singh signaled the driver of said car stop it. Om Shiv, who was identified by driver, was seen on driver seat. In spite of stopping it, he tried to flee away by reversing the car. He was forced by the members of raiding team to stop. He started firing upon them. Finally, he was overpowered. On being searched, said country made pistol was found loaded with a used cartridge. One SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.40 of 49 live cartridge of .315 bore was recovered from right side pocket of his pant. PW19 prepared a rukka and gave it to Head Constable Dilawar Singh for registration of FIR. FIR no.60/08 was recorded in PS Special Cell in that regard.
50. PW19 has clearly deposed regarding apprehending/over powering of accused Om Shiv near Ganda nala, Uttam Nagar, Najjafargarh at about 02:45 PM on 26.10.2008. He has also clearly deposed regarding recovery of country made pistol loaded with a used cartridge and one live cartridge of point .315 bore from the side pocked of accused Om Shiva. He has also clearly deposed regarding preparing a rukka and giving it to Head Constable Dilawar Singh for registration of FIR and thereafter, registration of FIR, vide FIR No. 60/08 in Police Station Special Cell. He was cross examined on behalf of the accused Om Shiv and Israil but nothing has been come in against case of prosecution. He had denied the suggestion that he did not join the investigation of said case at any point of time or that the accused Om Shiv was lifted from Chhattisgarh and implicated in this case falsely. Accused Om Shiv has not proved that he was lifted from Chhattisgarh by producing any documentary/oral evidence in this regard. He has not examined any witness in support of his defence. Assistant Sub Inspector Khem Singh (PW15) who was posted as Duty Officer on 26.10.2008 in Police Station Special Cell, Police Station Lodhi Colony has also been examined by prosecution who SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.41 of 49 deposed that at about 07:00 PM, Head Constable Dilawar Singh gave him a rukka sent by Inspector Atar Singh (PW19) and on the basis of which he recorded FIR No. 60/08 vide Ex. PW15/A.
51. In respect of arrest of accused Om Shiv, prosecution has also examined PW14 (Inspector Ashok Kumar) who was posted in Special Cell, Northern Range on 26.10.2018. He deposed that on that day, investigation of a case FIR No.60/2001, Police Station Special Cell was marked to him and he went to Ganda Nala of Nazafgarh where Om Shiv met him being in custody of Inspector Atar Singh (PW19). Om Shiv was arrested and interrogated by him. He also gave disclosure statement. That fact he informed to Police Station Kalkaji and Inspector Swadesh came to him from that police station and received copy of that disclosure statement. Said Inspector Swadesh Prakash has also been examined by the prosecution as PW24 who deposed that on 01.11.2008, he was posted as ATO, Police Station Kalkaji and the team of police officers, Sub Inspector Gajender (PW
20), Assistant Sub Inspector Ram Phool and himself were investigating the present case and on 31.10.2008, he moved an application Ex. PW24/A for production of the accused Om Shiv in the Court which was issued for 01.11.2008. PW20 (SubInspector Gajender Singh) has corroborated the testimony of PW24 (Inspector Swadesh Prakash) in respect of arrest of the accused Om Shiv on 01.11.2008 after taking permission from the Patiala House Courts.
SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.42 of 49 PW20 and PW24 have corroborated each other by saying that an application for conducting TIP of accused Om Shiv was moved by PW24 but he refused to join the TIP. Said TIP was conducted by Ms. Surya Malik Grover, Metropolitan Magistrate, Patiala House Courts, New Delhi. Said learned Metropolitan Magistrate has been examined as PW3 by the prosecution. She has proved that Investigating Officer Inspector Sudesh Prakash (PW24) appeared before her on 01.11.2008 alongwith Om Shiv @ Kalu in muffled face and accused was asked if he was willing to participate in TIP to which he refused. He was further warned that refusal in participation in TIP may lead to adverse inference drawn against me at the time of trial, however, he had insisted his refusal to participate in the TIP. She has further proved that the statement of accused was recorded which is Ex. PW3/A bearing signature of accused. She has proved the TIP of accused Om Shiv @ Kalu as Ex.PW3/A. The reason for not participating in TIP by the accused Om Shiv @ Kalu was circulating his poster in public and showing him on television. In his statement under Section 313 of the Code, accused Om Shiv @ Kalu has admitted that he has refused to participate in TIP proceedings because he had already been shown to the witnesses and his photographs were already circulated in the print media as well as newspaper, prior to the conducting of TIP.
Hence, from these testimonies, it can be safely held that accused Om Shiv @ Kalu was arrested in present case on 01.11.2008 and he refused to participate in TIP ( Ex. PW3/A).
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52. In respect of arrest of accused Mohd. Israil @ Ajay, PW17 (Head Constable Sanjeev) has deposed in respect of arrest of the accused Mohd. Israil @ Ajay that on 29.08.2008, he was posted in police station Badarpur and by order of the ACP Sh. Bhishm Singh, some special teams were organized to nab the offenders involved in cases of chain snatching and robbery etc.. One such team was comprising Sub Inspector Heera Lal, Constable Ashok, Constable Bijender apart from him. On receiving the secret information, they all members of the team went at Kurwai, Tirpur, Coimbatore and took possession at bus stand of Kurwai. At about 09:45 AM, accused Israil came there on foot. As some photographs/sketch of the said accused was widely published, they were aware of his feature and therefore, he was apprehended and he was brought to Delhi. Investigating Officer prepared a Kalandra in that regard and copy of said Kalandra is Ex.PW17/B.
53. Testimony of PW17 regarding arrest of accused Israil @ Ajay has been corroborated by PW23 (Head Constable Ashok Kumar). PW26 (Head Constable Parvinder Singh) was posted at police station Badarpur and working as MHC(R). He proved that on 29.08.2008, Sub Inspector Heera Lal lodged DD No.40 with regard to arrest of accused Israil under Section 41.1 of the Code. He proved the said DD No.40 as Ex.PW26/A. The said DD No.40A dated 29.08.2008 has also been proved by PW22 (Head Constable Subhash SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.44 of 49 Chand) as Ex.PW22/A. The arrest of the accused Israil in the present case has been proved by the Investigating Officer, Sub Inspector Gajender Singh (PW20) by deposing that on 19.09.2008, he went to Tihar Jail where with the permission of Jail Superintendent, he arrested accused Israil vide arrest memo Ex.PW20/B. In respect of TIP of accused Israil, PW20 and PW24 (Inspector Swadesh Prakash) have deposed that an application (Ex.PW24/C) for conducting TIP of accused Israil was moved, however, he refused to participate in the said proceeding. Said TIP was got conducted by PW25, Sh. Ajay Garg, Additional Chief Metropolitan Magistrate, Patiala House Court, New Delhi on 24.09.2008. TIP proceedings of accused Israil @ Ajay has been proved as Ex.PW25/A. Accused had refused to participate in TIP proceedings stating that he has been shown to the witnesses. PW25 was not crossexamined by accused persons.
Hence, from these testimonies, it has been proved that accused israil was arrested in the present case on 19.09.2008 vide arrest memo Ex.PW20/B and his TIP was conducted on 24.09.2008 by PW25 vide Ex.PW25/A.
54. Offence of Dacoity punishable under Section 395 IPC.
Charge for the offence under Section 395 IPC was framed against the present accused persons namely Om Shiv @ Kalu, Mohd. Israil @ Ajay Dhakad and Zakir @ Nasir for committing dacoity of the articles belonging to Aman Thukral (PW1) in the shop no. B39A, SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.45 of 49 Main Road, Kalkaji. As per the case of prosecution, dacoity was committed by five accused persons but two coaccused persons namely Om Prakash @ Bunty and Rajesh Sharma @ Panni had been killed in police encounter in case FIR No. 416/08, Police Station Badarpur. I have already held that two coaccused persons namely Om Prakash @ Bunty and Rajesh Sharma @ Panni had been died after incident. From the above discussion, I am of the view that prosecution has been succeeded to prove beyond resonable doubt that accused persons namely Om Shiv @ Kalu, Mohd. Israil @ Ajay Dhakad and Zakir @ Nasir alongwith two coaccused persons have committed dacoity in shop no. B39A, Main Road, Kalkaji known as M/S Thukral Time Centre Pvt. Ltd. belonging to Aman Thukral (PW1) and Naresh Chander Thukral (PW2) at about 08:15 PM on 06.07.2008 and had looted a golden chain alongwith pendent belonging to Aman Thukral and cash of Rs. 18000/20000/ from the Galla.
55. Offence under Section 397 IPC.
Charge for the offence under Section 397 IPC was framed against the accused Om Shiv @ Kalu only for using deadly weapon i.e. country made pistol while committing dacoity. In respect of accused Om Shiv, Aman Thukral (PW1) pointed towards accused Om Shiv who entered in the shop armed with pistol. He also deposed that accused Om Shiv put knife on his abdomen and snatched his SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.46 of 49 golden chain alongwith pendent from his neck. Naresh Chand Thukral who is the father of the Aman Thukral, has deposed in this regard that accused Om Shiv was having a bag around his neck and was keeping the robbed articles as well as cash in the said bag and at a time of incident, he was carrying knife in his hand. There is no cross examination of PW1 and PW2 on behalf of the accused Om Shiv in respect of carrying knife/pistol at the time of incident. PW21 (Dhani Ram) deposed in this regard that one out of four boys who entered into the shop, put a country made pistol on his stomach and the person who had put country made pistol on his stomach is accused Om Shiv. He was also cross examined on behalf of the accused Om Shiv but nothing has been come against the case of prosecution in respect of carrying weapon by the accused Om Shiv. PW1, PW2 and PW21 have identified the accused Om Shiv during trial. It appears from these testimonies that accused Om Shiv @ Kalu was having knife/pistol because both were used by him. Hence, it has been proved that accused Om Shiv @ Kalu had used deadly weapon i.e. knife/pistol at the time of committing dacoity. PWs 1, 2 and 21 have also deposed in respect of carrying/using deadly weapon like knife/pistol by the two coaccused persons namely Mohd. Israil @ Ajay Dhakad and Zakir @ Nasir but no charge for the offence under Section 397 IPC was framed against them and therefore, I am not considering the offence under Section 397 IPC against both of them.
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56. Offence under Section 412 IPC.
Charge for the offence punishable under Section 412 IPC was framed against the accused Zakir @ Nasir for receiving or retaining one golden coloured chain with pendent. Offence under Section 412 IPC attracts against the accused who dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or against the accused who dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen. Hence, this offence (Section 412 IPC) is made out against the accused who had received or retained any stolen property as mentioned in the said Section. It is well settled that the accused who commits theft/extortion/robbery/dacoity cannot commit the offence of Section 412 IPC or Section 411 IPC as the case may be, because one accused cannot commit both the offences i.e. offence of theft/extortion/robbery/dacoity and the offence of receiving or retaining the stolen property as mentioned in Section 411 IPC and 412 IPC. As it has been held that accused Zakir @ Nasir also committed dacoity and therefore, he can not be held guilty for offence under Section 412 IPC.
57. Hence, I hold guilty accused persons namely Mohd. Israil @ Ajay Bidhuri @ Ajay Dhakad and Zakir @ Nasir for the offence under SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.48 of 49 Section 395 IPC. I also hold guilty accused Om Shiv @ Kalu for the offence under Section 395 IPC read with Section 397 IPC.
Hence, accused persons namely Mohd. Israil @ Ajay Bidhuri @ Ajay Dhakad and Zakir @ Nasir are convicted for the offence under Section 395 IPC and further accused Om Shiv @ Kalu is convicted for the offence under Section 395 IPC read with Section 397 IPC.
Announced in the open Court on 01.02.2019.
(SANJEEV KUMARII) Additional Session Judge05, South East District, Saket Courts, New Delhi SC No.1716/2016 State v. Zakir @ Nasir & Ors. Page No.49 of 49