Delhi District Court
Fir No. 286/08 State vs . Akash Bansal And Anr. Page 1 Of 32 on 29 August, 2012
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 33/09
FIR No. 286/08
P.S. Mukherjee Nagar
U/S: 365/392/397/34 IPC
STATE
Versus
(1) Akash Bansal
s/o Prem Bansal
r/o H. No. 1/14,
near Punjabi Tadka Restaurant
Sant Nagar, Burari, Delhi
Permanent Add: H. No. 409,
Bakner Main Bus Stand,
Narela, Delhi
(2) Goverdhan Singh
s/o Major Singh
r/o H. No. 1/14,
near Punjabi Tadka Restaurant
Sant Nagar, Burari, Delhi
Permanent Add: H. No. 981, Vishal Nagar,
Pakhowal Road, Ludhiana, Punjab.
Date of Institution: 24122008
Date of arguments: 27082012
Date of judgement: 29082012
FIR No. 286/08 State Vs. Akash Bansal and anr. Page 1 of 32
JUDGMENT
1. The case of the Prosecution, in brief, is that on 19.08.2008, at about 6:30 pm complainant Abhinav Singh Raghuvanshi was going in his Maruti Alto car bearing no. DL9CM1738 to his friend's house and when he reached at the red light of Model Town, some unknown persons aged about 3235 years, entered in his car forcibly by putting katta at him, just before the red light of Camp. Those persons asked complaint to take left side turn on the point of katta and complainant turned left side. As the complainant turned the vehicle towards left side, those persons asked the complainant to get down from the car and sit on the back seat. Those persons also threatened the complainant that if he raised noise or showed any cleverness, he would be killed. Complainant sat on the back seat and one person sat his left side while holding weapon. In the meanwhile, those persons started moving the car in the inner parts of the area and snatched the mobile and purse of complainant. The battery of the mobile phone of complainant was removed and thrown away and his purse was checked by those persons. Three Debit Cards of Axis Bank, HDFC Bank and SBI bank and credit cards of HDFC Bank, ICICI Bank, HSBC Bank and SBI Bank were removed by those persons. Those FIR No. 286/08 State Vs. Akash Bansal and anr. Page 2 of 32 persons asked the PIN numbers of ATM cards from the complainant and taken out Rs. 33,000/ from Axis Bank ATM and Rs. 3,000/ from HDFC Bank ATM in four shots which were situated in the area of Camp, Hudson Lane, and Mukherji Nagar.
2. It is also the case of the Prosecution that during this period, those persons were talking of killing some Rahul and stating that they had lifted complainant by mistake. Complainant remained in the custody of those persons for about 3 hours and one person remained sitting along with him while pointing weapon. Accused also threatened the complainant to kill him with gun. Accused also snatched Law CentreI, DU Icard of complainant carrying address of complainant, one gold ring and Rs. 500/. While leaving, accused persons threatened the complainant not to inform the police otherwise, he would be killed as they were having his address. FIR was registered u/s 365/386 IPC. On 23.10.2008, DD no. 8A was recorded in PS Mukherji Nagar regarding arrest of accused Govardhan and Akash Bansal in case FIR no. 13/08 u/s 411 IPC and case FIR no. 14/08 u/s 25 Arms Act, PS Crime Branch and they confessed their guilt in case FIR no. 246/08 and 286/08 of PS Mukherji Nagar. Thereafter, on 31102008 both the accused were arrested in the present case. After completion of investigation, FIR No. 286/08 State Vs. Akash Bansal and anr. Page 3 of 32 charge sheet was filed against both the accused in the court u/s 365/392/397/34 IPC.
3. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section u/s. 365/392/397/34 IPC was framed against both the accused and in addition charge u/s 411 IPC was also framed against accused Govardhan Singh to which they pleaded not guilty and claimed trial.
4. In order to prove its case, Prosecution examined 13 witnesses. Statements of the accused were recorded u/s 313 Cr.P.C. wherein they denied all the allegations made against them. Accused Govardhan did not opt to lead defence evidence while accused Akash Bansal opted to lead defence evidence and examined Prem Bansal as DW1.
5. I have heard Ld. Counsel for accused and Ld. APP for State and have perused the written arguments filed by the Ld. Defence counsel and Ld. APP for the State and also the entire records.
6. Ld. Defence counsel argued that there is no explanation for delay in filing the complaint. In the complaint Ex. PW3/A, the complainant has mentioned about some unknown persons and no specific number of persons stated by the complainant in his said FIR No. 286/08 State Vs. Akash Bansal and anr. Page 4 of 32 complaint. There is no inference in the complaint that there were two persons. In the complaint, the complainant has stated about pistol used by the accused. Whereas, in his examination in chief as PW3, he deposed that katta was used by the accused. Meaning thereby, the katta has been developed by the prosecution. The prosecution case is based on the disclosure statement. Even otherwise, there is no recovery of katta. In the complaint Ex. PW3/A, it is mentioned that the accused withdrew the amount of Rs. 33,000/ from Axis Bank ATM and Rs. 3,000/ from HDFC Bank ATM at four different times. Whereas, in the examination in chief, PW3 deposed that the accused withdrew about Rs. 33,000/ from the ATM of Axis Bank in three shots and an amount of Rs. 4,000/ from the ATM of HDFC Bank. PW3/ complainant mentioned in his complaint that some unknown persons pointed the katta on him in his car but the complainant did not raise any alarm at that time. TIP is doubtful. There is a major contradiction between the contents of the complaint Ex. PW3/A and the examination in chief of PW3. The Ld. Defence counsel has further argued that TIP was conducted in the court. No site plan was prepared at the instance of complainant / PW3. The incident is dated 19082008. However, the accused have been arrested on 22102008 i.e. after more than FIR No. 286/08 State Vs. Akash Bansal and anr. Page 5 of 32 two months. The Ld. Defence counsel in support of their arguments, relied upon the judgement reported in the case of Bhanda Garh Vs. State of Assam 1984 CrLJ 217; Hukam Singh Vs. State (NCT) of Delhi 2011 (3) Crimes 278 (Delhi); Shankar Lal Vs. State of Rajasthan (2004) 10 SCC 632; Ramdas & Ors Vs. State of Maharastra AIR 2007 SC 155; Balmiki Singh Vs. Ramchandra Singh & Ors. (2008) 10 SCC 218; Mohd. Abdul Hafeez Vs. State of Andhra Pradesh AIR 1983 SC 367 and Ghanshyam @ Bablu Vs. State, 2010 (1) JCC 240.
7. Whereas, the Ld. APP for State has argued that all witnesses are not the police officials. Other witness is required when the victim is not supporting the case but in the present case, the victim/ PW3, the officers from the Banks and the police officials have proved on record that accused persons had committed the offence as charged. PW3 has deposed about the specific time of the incident. The accused had taken away PW3 forcibly and the katta was pointed upon the complainant by the accused and he was also threatened by the accused to kill if he raised any alarm while they were inside the car. PW3 not only identified the accused persons but also his gold ring and Icard. The Ld. APP for the State has further argued that there is no enmity between the complainant FIR No. 286/08 State Vs. Akash Bansal and anr. Page 6 of 32 and the accused. Even otherwise, the accused have not led any evidence in this regard. So far as there is any fault in the investigation by the police officials, the accused cannot take benefit of faulty investigation. The Ld. APP also argued that this case is not based on circumstantial evidence, therefore, there is no need to prepare site plan. Further, there are no major contradictions between the complaint and examination in chief of PW3. If there are minor contradictions, they do not go to the root of the case. The Ld. APP for the State, in support of his arguments, has relied upon the judgments reported in the case of Kalam @ Abdul Kalam (Md.) Vs. State of Rajasthan 2008 IV AD (SC) 453; Paramjeet Singh @ Pamma Vs. State of Uttarakhanda, AIR 2011 SC 200; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920; Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1).
8. Let us firstly discuss about the legal position under the aforesaid sections of IPC. Section 365 IPC lays down the same penalty as Section 363 IPC but it punishes abduction not mentioned in that section. It requires an intention to confine a person secretly and wrongfully. The essence of an offence under this section is kidnapping. Therefore, the prosecution must prove kidnapping by the accused or abduction by him and the accused thereby intended FIR No. 286/08 State Vs. Akash Bansal and anr. Page 7 of 32 that the person kidnapped or abducted should be kept in wrongful or secret confinement. Even where a person is abducted in order that he might be held to ransom by his abductors, this section is applicable. Section 392 IPC specifies the punishment which can be inflicted in case of simple robbery. The arrest of the culprits in such cases is often delayed on account of the inherent difficulties which the Prosecution naturally faces in such cases. Section 394 IPC speaks of two distinct classes of personsthose who actually caused hurt and those who do not but are jointly concerned in the commission of the offence of robbery. The guilty act of one is imputed to all who are joint with him provided the act is done in committing the offence of robbery. The provisions of section 397 IPC do not create any new substantive offence as such but merely serve as complementary to sections 392 and 395 IPC by regulating the punishment already provided for dacoity by fixing a minimum term of imprisonment when the dacoity committed was found attendant upon certain aggravating circumstances viz., use of a deadly weapon, or causing of grievous hurt or attempting to cause death or grievous hurt. For that reason, no doubt the provision postulates only the individual act of the accused to be relevant to attract section 397 IPC and thereby inevitably negates the use of the FIR No. 286/08 State Vs. Akash Bansal and anr. Page 8 of 32 principle of constructive or vicarious liability engrafted in section 34. Section 411 IPC prescribes penalty for dishonest receipt or retention of stolen property, knowing or having reason to believe the same to be stolen property. This section as also the succeeding sections are directed not against the principal offenders, e.g. a thief, robber or misappropriator but against the class of persons who trade in stolen articles and are receivers of 'stolen property'. Principal offenders are, therefore, outside the scope of this section. The conviction of the principal offender is also not a prerequisite to the conviction of the receiver of stolen property under this section.
9. In view of the above arguments of the Ld. Defence counsel and the Ld. APP for the State as well as the judgements relied upon by them, let us examine the evidence led in this case as to whether the accused had committed the offence as charged or whether they have been falsely implicated. PW1 Shubhashish brought the copy of the account opening form (7 pages) of Abhinav Singh Raghuvanshi bearing account No. 296010100047436 as Mark X (colly), the photocopy of the passport submitted with the form as Mark Y. The forwarding letter of Rajiv Kumar Jain, Assistant Vice President and Branch Head, Axis Bank, Mayur Vihar was proved as Ex. PW1/A. He also proved the letter dated 22.12.2008 Ex. PW1/B FIR No. 286/08 State Vs. Akash Bansal and anr. Page 9 of 32 of Axis Bank, Mayur Vihar issued by Rajiv Kumar Jain, Assistant Vice President/ Branch Head, Axis Bank forwarding therewith the details of the account and the statement of account for the period 1.8.2008 to 31.10.2008 bearing the signatures of Zahid Javed, Manager (Operations). He identified writing and signature of Zahid Javed on Ex. PW1/B. The statement of account of PW3 was proved as Ex. PW1/C and as per the statement of account, there were four withdrawals through ATM on 19.8.2008 in the sum of Rs. 20,000/, Rs. 5020/, Rs. 5020/ and Rs. 3020/. PW2 Surajit Baruah, Back up Branch Manager, HDFC Bank, Mayur Vihar deposed that a notice u/s 91 Cr.P.C. regarding HDFC Bank Ltd. Account No. 02931000020869 was received by him on behalf of HDFC Bank from Inspector Rajesh Dahiya, PS Mukherji Nagar, Delhi. In response to the said notice, he gave reply dated 23.12.08 Ex. PW2/A along with bank account statement for the period 01.08.2008 to 22.08.2008 Ex. PW2/B. As per record, the first account holder was Abhinav Singh Raghuvanshi and second account holder was Apporv Singh Raghuvanshi, both resident of H.No. J5, East Vinod Nagar, Near Neelam Mata Mandir, Delhi110091. He furnished the details of withdrawal dated 19.8.2008 from the said account from Mukherji Nagar, ATM through ATM Card No. 5264190103950324. FIR No. 286/08 State Vs. Akash Bansal and anr. Page 10 of 32
10. PW3 Abhinav Singh Raghuvanshi deposed that on 19.08.2008 at about 6.30 pm, he was going to Model TownI at Khanna Eye Centre in his Maruti Alto car bearing No. DL9CM1738 for his eye checkup. When he reached at the red light on the camp side, he stopped his car, accused Akash Bansal (correctly identified) entered in his car from the front left gate with a countrymade katta and pointed his katta on PW3 and asked if he was Rahul and to take the car inside. When PW3 brought the car to the side of the road, the other accused (correctly identified) rushed inside the car. Both the accused persons shouted at him to get down from the car. PW3 told them that he was not Rahul but still they shouted at him that they would verify this and asked him to bring out his purse and watch etc. They also forced him on to the rear seat of the car by pointing katta at him. He was made to sit on the back seat immediately behind the driver seat. Accused Akash Bansal took up the seat next to him on to his left and the other accused took up the driver seat. They then started driving the car inside the localities of the area and in the meanwhile, accused Akash Bansal kept checking his wallet which was snatched from him. There were three ATM Debit cards of Axis Bank, HDFC Bank and SBI Bank and three credit cards of HSBC bank, ICICI bank and HDFC Bank in his purse. FIR No. 286/08 State Vs. Akash Bansal and anr. Page 11 of 32 They started searching for the ATMs. The accused persons forced PW3 to give the PIN numbers of ATMs by pointing the katta on him. They stopped the car at the red light of camp. Accused Goverdhan Singh who was driving the car got down and withdrew about Rs. 33,000/ from the ATM of Axis Bank in three shots which was situated about 10 steps from the place where the car was stopped. While accused Goverdhan Singh had gone to withdraw the money, coaccused Akash Bansal kept sitting in the car and continued his threats by showing the katta to him.
11. PW3 further deposed that thereafter accused took him to the ATM of HDFC Bank at Mukherji Nagar complex from where accused Goverdhan withdrew Rs. 4,000/ using his ATM Card. The accused persons then drove him in the interior of the colonies. During all these, they kept on talking on their mobile phone. After lot of pleadings, they ultimately left PW3 near the camp at around 10 pm and went away taking away his Law Centre1, DU ICard, bearing his address and his gold ring and threatened while leaving that they would kill him in case, he initiated any police action because they were having his address. They had also taken away Rs. 200/ lying in his purse. They threw out the battery of his mobile phone. From there, he went to his house and narrated the incident FIR No. 286/08 State Vs. Akash Bansal and anr. Page 12 of 32 to his family members. PW3 was starved and badly tired and therefore, went to PS Mukherji Nagar in the morning of 20.08.2008 and gave a complaint in writing Ex. PW3/A. PW3 was later informed by Inspector Rajesh Dahiya about the arrest of the culprits. At the request of Inspector Rajesh Dahiya, he went to Tihar Jail on 19.11.2008 for the TIP of the accused persons. However, the accused persons refused to take part in the TIP. On 01.12.2008, PW3 came to Rohini Courts where he identified both the accused persons present in the court. On 13.12.2008, he was again called in Rohini Courts for the TIP of his gold ring and he correctly identified his gold ring before the court in TIP. PW3 identified the proceedings of TIP of gold ring as Ex. PW5/C. He also identified gold ring as Ex. P1; his Law CentreI, Faculty of Law, University of Delhi, Icard bearing his photograph as Ex. P2. In response to leading question put by Ld. APP for State, PW3 deposed that Rs. 500/ and an SBI Credit card were also there in his pocket and that in total four transactions, accused persons took out Rs. 33,000/ from Axis Bank ATM and Rs. 3,000/ from HDFC Bank ATM.
12. PW4 Inspector Nageen Kaushik deposed that on 21.08.2008, he was posted as Inspector Investigation at PS Mukherji Nagar and during investigation, he collected uncertified FIR No. 286/08 State Vs. Akash Bansal and anr. Page 13 of 32 copies of bank statements, Axis Bank Model Town and HDFC Bank Mukherji Nagar pertaining to the account of complainant Abhinav. The accounts of the complainant were originally not opened in the Model Town and Mukherji Nagar of the banks. PW4 had also got prepared the portrait of one of the accused through a Constable posted in Police Head Quarter. On 08.09.2008, on his transfer from PS Mukherji Nagar, he handed over the file to MHC(R). PW5 Shri Neeraj Gaur, MM conducted the TIP of accused and he deposed that an application Ex. PW5/1 for conducting TIP of accused Akash Bansal and Goverdhan Singh was marked to him. On 19.11.2008, he reached Jail No. 7, Tihar Jail for conducting TIP of above named accused persons but the accused refused to join the TIP proceedings. PW5 proved the TIP proceedings qua accused Goverdhan as Ex. PW5/2 and TIP proceedings qua accused Akash Bansal as Ex. PW5/3. IO moved an application Ex. PW5/4 for providing copy of TIP proceedings which was allowed. An application Ex. PW5/7 for conducting TIP of case property i.e gold ring was also marked to him and he conducted the TIP proceedings Ex. PW5/5 on 13.12.2008 whereby witness Abhinav Singh Raghuvanshi correctly identified the case property and the result of the TIP was proved as Ex. PW5/6. IO also moved an application Ex. FIR No. 286/08 State Vs. Akash Bansal and anr. Page 14 of 32 PW5/8 for obtaining copy of TIP proceedings. PW6 SI Nirbhay Singh Rana deposed that on 22.10.2008, he was posted at SOS Crime Branch, Delhi and on the basis of secret information and at the instance of secret informer, both the accused persons namely Akash Bansal and Goverdhan Singh (correctly identified) were apprehended at about 7.15 pm near red light Nirankari Sant Samagam Sthala. FIR No. 13/2008 under Section 411 IPC was registered against accused Goverdhan Singh on the endorsement of HC Ombir and FIR No. 14/08 was registered against accused Akash Bansal under Section 25/54/59 Arms Act at PS Crime Branch on the endorsement of PW6. Both the aforesaid cases were investigated by second IO SI Ravinder Verma. One country made pistol of .315 bore loaded and two other live rounds were recovered from accused Akash Bansal and one stolen Santro car was recovered from the possession of accused Goverdhan.
13. PW7 HC Dinesh Kumar deposed that on 22.10.2008, he was posted at SOS Crime Branch, New Delhi and on that day, at about 5.00 pm, a secret informer visited the office and informed that two members of a gang involved in highway robbery would come at outer Ring Road, Nirankari Sant Samagam Sthala near red light to commit some crime in a white Santro car having fake registration FIR No. 286/08 State Vs. Akash Bansal and anr. Page 15 of 32 No. DL4CS6775. A raiding party was constituted consisting of PW7, SI Nirbhay Singh Rana, HC Ombir, Constable Subodh, Constable Sushil, Constable Kartar and Constable Rakesh in civil clothes with ammunition. At about 6:45 pm they reached at Nirankari Sant Samagam Sthala near red light and SI Nirbhay Singh Rana asked 67 persons to join the raiding party but they refused. Thereafter, they took positions just ahead of red light towards outer Ring Road Wazirabad. At about 7.15 pm, one white colour Santro car No. DL4CS6775 came and stopped at a distance of 200 meters from the red light, road going towards Wazirabad. On the pointing out of secret informer, the Santro Car was encircled by them. Accused Akash Bansal (correctly identified) was sitting on the front seat besides the driver seat and accused Goverdhan (correctly identified) was driving the car. On the search of accused Akash Bansal, one countrymade Katta of .315 bore loaded was recovered from his right dub and two live rounds were recovered from the right side pocket of his pant. Accused Akash Bansal was apprehended by PW7 with the help of SI Nirbhay Singh Rana. Accused Goverdhan was apprehended by HC Ombir Singh with the help of Constable Subodh. The aforesaid Santro Car was found stolen regarding which case FIR No. 246/08, PS Mukherjee Nagar was FIR No. 286/08 State Vs. Akash Bansal and anr. Page 16 of 32 already registered and HC Ombir carried out the investigation and got registered FIR No. 13/08 under Section 411 IPC. SI Nirbhay Singh Rana got registered FIR No. 14/08 under Section 25 Arms Act for the recovery of country made Katta and three live rounds from accused Akash Bansal. After the registration of the aforesaid FIRs, the investigation of both the FIRs was handed over to SI Ravinder Kumar who came at the spot and carried out the investigation of both the aforesaid cases and recorded the disclosure statements of both the accused persons wherein they admitted their guilt and involvement in other cases including the present case. As per the disclosure statement, one ICard of Law CentreI, University of Delhi of Abhinav S. Raghuvanshi son of Dr. P. Singh and one gents gold ring were recovered at the instance of accused Goverdhan from his tenanted room situated at first floor, H. No. 1/14 near Punjabi Tadka Restaurant, Sant Nagar, Burari from his suitcase. The ring was turned into a pullanda and sealed with the seal of RKV, both were taken into possession vide seizure memo Exbt. PW7/A. The disclosure statements of accused Akash Bansal and Govardhan are Exbt. PW7/B and PW7/C (original disclosure of accused Akash Bansal found placed in FIR No. 14/08 PS Crime Branch produced by Ahlmad Sh. Gous Mohammad of the court of Sh. Sanjay Bansal, FIR No. 286/08 State Vs. Akash Bansal and anr. Page 17 of 32 ACMM, NorthII, Tis Hazari Courts) (OSR). PW7 identified the case property i.e. gold ring as Exbt. P1 and I Card of Law CentreI, Faculty of Law, University of Delhi as Exbt. P2.
14. PW8 SI Ravinder Verma deposed that on 22.10.2008, he was posted at SOS Crime Branch and on receipt of information regarding apprehension of accused Akash Bansal and Goverdhan Singh by SI N.S. Rana and HC Ombir Singh and other staff with stolen Santro car, arms and ammunition near Nirankari Sant Samagam Sthala at outer Ring Road, he reached at the spot. SI N.S. Rana was interrogating accused Akash Bansal (correctly identified) and HC Ombir Singh was interrogating the accused Goverdhan Singh (correctly identified). They then prepared the Rukkas and sent the same to PS through constable Subodh. Both the accused were handed over to PW8 along with Santro car, sealed pullanda of countrymade pistol and three live rounds. Two separate FIRs bearing No. 13/08 under Section 411 IPC and FIR no. 14/08 under Section 25 Arms Act were registered at PS Crime Branch. PW8 prepared the site plan on the pointing out of SI N.S Rana and HC Ombir Singh. Accused Goverdhan was arrested in FIR No. 13/08 Mark A and accused Akash Bansal was arrested in case FIR No. 14/08 Mark B, PS Crime Branch. The Santro car and FIR No. 286/08 State Vs. Akash Bansal and anr. Page 18 of 32 the sealed pullandas were deposited with MHCM Crime Branch. On interrogation, accused Akash Bansal and Goverdhan gave separate disclosure statements Ex. PW7/B and PW7/C which were recorded by PW8. During investigation on 23.10.2008, accused Goverdhan Singh took the police party at first floor H. No. 1/14, near Punjabi Tadka Restaurant, Sant Nagar, Burari which was a rented premises from where he got recovered an Icard in the name of Abhinav S. Raghuvanshi and a gold ring from a suitcase. Accused Govardhan also got recovered the case property relating to other cases. The recovered ring was kept in a cloth pullanda and sealed with the seal of RKV and given Mark 1. The Icard and the sealed pullanda were seized vide memo Exbt. PW7/A. The accused could not get recovered the cash amount as according to the accused they had spent the money. Accused disclosed that they had thrown the credit card and ATM card. PW8 passed on the information to IO Inspector Rajesh Dahiya of Case FIR No. 286/08, PS Mukherjee Nagar. PW8 handed over the original seizure memo along with other documents and the Icard to IO of this case. The sealed pullanda was also transferred to PS Mukherjee Nagar through Road Certificate. PW8 identified the gold ring as Exbt. P1 and Icard of Law Centre1 in the name of Abhinav S. Raghuvanshi as Exbt. P2.
FIR No. 286/08 State Vs. Akash Bansal and anr. Page 19 of 32
15. PW9 HC Raj Kumar deposed that on 22.10.2008, he was posted at Crime Branch and working as DO between 8.00 pm to 8.00 am and on receipt of rukka from Ct. Subodh Kumar, he recorded FIR No. 13/08 & 14/08 u/s 411 IPC and u/s 25 Arms Act respectively as Ex. PW9/A and Ex. PW9/B respectively (OSR). PW10 HC L. N. Sharma deposed that on 21.08.2008, he was posted as HC at PS Mukherjee Nagar and working as Duty Officer from 4.00 pm to 12.00 midnight. At around 9.00 pm, SHO handed over Rukka to him, on which basis, he recorded FIR No. 286/08 under Section 365/386 IPC as Exbt. PW10/A (OSR). After registration of the FIR, he handed over the copy of FIR and Rukka in original to Constable Vikas for handing over the same to Inspector Naveen Kaushik. PW11 HC Sanjeev Kumar deposed that on 01.12.2008, he went to PS Sunlight Colony at the office of Crime Branch from where he brought a sealed pullanda from the Malkhana of Crime Branch and deposited the same in the Malkhana of PS Mukherjee Nagar. During crossexamination conducted by Ld. APP for State, PW11 deposed that he brought the pullanda of case FIR No. 13/08 under Section 411 IPC of PS Crime Branch vide RC no. 23/21 which was deposited by SI Ravinder Kumar vide serial No. 2685/08 at PS Mukherjee Nagar.
FIR No. 286/08 State Vs. Akash Bansal and anr. Page 20 of 32
16. PW12 HC Ombir Singh deposed that on 22.10.2008, he was posted as HC at SOS Crime Branch, Sunlight Colony, Delhi and at about 5.00 pm, a secret informer came in the office and informed him that two persons would come at the red light, Outer Ring Road near Nirankari Sant Samagam Sthal in a white colour santro car bearing no. DL 4 CS 6775 for committing some robbery. He gave this information to SI N.S. Rana, who after discussion with the senior officers, organized a raiding party comprising of SI N.S. Rana, PW12, HC Dinesh, Ct. Subodh, Ct. Sushil, Ct. Kartar and Ct. Harvinder and other staff. At about 5.30 pm, they went to the spot in two private maruti cars. At about 6.40 pm, on reaching the red light of Nirankari Sant Samagam Sthal, 67 passersby were requested to join the raiding party by SI N.S. Rana, but all of them left after expressing their inability. Both the cars were parked on the side of the road going towards Wazirabad and they took positions. At about 7.15 pm, a white colour Santro car bearing no. DL4CS6775 came and stopped at a distance of 200 meters ahead from the red light. On the pointing out of secret informer, they surrounded the santro car. PW12 with the help of Ct. Subhodh overpowered accused Goverdhan (correctly identified) who was on the driver seat. SI N.S. Rana overpowered the coaccused Akash Bansal (correctly FIR No. 286/08 State Vs. Akash Bansal and anr. Page 21 of 32 identified) who was sitting on the front left seat of the Santro car besides the driver seat. PW12 questioned accused Goverdhan about the papers of the car and it was found to be a stolen car involved in case FIR no. 247/08 u/s 379 IPC, PS Mukherjee Nagar. SI N.S. Rana recovered a .315 bore katta from accused Akash Bansal. PW12 prepared the rukka regarding the recovery of stolen santro car from accused Goverdhan and sent the same at PS through Ct. Subhodh and FIR no. 13/08 u/s 411 IPC was registered. PW12 then seized the Santro car vide seizure memo. SI Ravinder Verma came at the spot for further investigation. Accused Goverdhan Singh, Santro car and the seizure memo were handed over to him for further investigation. In response to leading questions put up by Ld. APP for State, PW12 deposed that information was recorded in the roznamcha. The recovered santro car was the stolen car of case FIR no. 246/08 and not 247/08. PW12 could not say whether the katta was loaded or that it was recovered from the right dub of pant of accused Akash Bansal. He volunteered to say that he was busy making inquiry with regard to the recovery of stolen car from accused Goverdhan Singh.
17. PW13 Inspector Rajesh Dahiya deposed that on 20.09.2008, he was posted as Inspector Investigation at PS FIR No. 286/08 State Vs. Akash Bansal and anr. Page 22 of 32 Mukherjee Nagar and investigation of the present case was entrusted to him. He made enquiry from the complainant. On 25.10.2008, he received DD No. 8A dated 23.10.2008 Exbt. PW30/A regarding arrest of accused Akash Bansal and Goverdhan in FIR No. 13/08 & 14/08, PS Crime Branch by SOS Crime Branch and their disclosure statement regarding their involvement in the present case. PW13 then went to the office of SOS crime branch where SI Ravinder Kumar, who was the IO of case FIR No. 13/08 & 14/08 handed over the copies of disclosure statements Exbt. PW7/B and Exbt. PW7/C and the recovery memo. He recorded the statements of SI Ravinder Kumar, SI Nirbhay Singh Rana, HC Dinesh Kumar and HC Onkar Singh. On 31.10.2008, both the accused were produced in court in muffled face and PW13 interrogated both the accused with the permission of the court. They were then formally arrested vide arrest memo Exbt. PW30/B and Exbt. PW30/C respectively. On 07.11.2008, he moved an application for the TIP Exbt. PW30/D of the accused persons in the concerned court. The court fixed the date for TIP as 11.11.2008 but TIP could not be conducted on that day as the court orders could not reach to the jail authorities. On 13.11.2008, SI Ravinder Kumar in compliance of notice under Section 160 Cr.PC came at PS FIR No. 286/08 State Vs. Akash Bansal and anr. Page 23 of 32 Mukherjee Nagar and handed over the original identity card of Law Center1, Exbt. P2 of Abhinav Raghuvanshi and the original seizure memo Exbt. PW7/A. PW13 examined SI Ravinder Kumar and recorded his statement. On 14.11.2008, PW13 filed fresh application Ex. PW30/E for the TIP of accused but on 19.11.2008, both the accused refused to take part in the TIP. He collected the copies of TIP proceedings. On 01.12.2008, Ct. Sanjeev Kumar brought sealed parcel bearing the seal of RKV from the office of SOS Crime Branch and deposited the same in Malkhana. On 01.12.2008, PW13 came to the court for extension of judicial custody of both the accused. Complainant Abhinav Raghuvanshi also met him in the court and identified both the accused and told that they were the same persons who were involved in the incident with him. On 12.12.2008, PW13 filed an application Ex. PW5/7 in court for TIP of the case property and TIP proceedings were conducted on 13.12.2008. He obtained the copy of TIP proceedings vide application Exbt. PW5/8. He obtained the details of transactions dated 19.08.2008 of the account of the complainant from Axis Bank and HDFC Bank.
18. DW1 Prem Bansal deposed that he is father of accused Akash Bansal and on 20.10.2008, his son Akash was coming to FIR No. 286/08 State Vs. Akash Bansal and anr. Page 24 of 32 meet him in Delhi at Burari and when Akash reached at Burari, some unknown persons picked him at about 5.30pm. He lodged a complaint on 21.10.2008 to Joint Commissioner of Police, Commissioner of Police, SHO concerned vide Ex. DW1/A, original of which was filed in the Court of Shri Sanjay Bansal, ACMM North, Delhi. During the proceedings before the court of Shri Sanjay Bansal, ACMM, DW1 summoned police officials namely SI Shyam Sunder, HC Ranbir Singh, ASI Krishan along with the documents Ex. DW1/B to D. HC Ranbir Singh filed a list of complaints Ex. DW1/E (colly) out of which complaint at Sl. No. 28 pertained to his complaint. ASI Krishan also filed a list of complaint wherein serial No. 2 pertained to his complaint Ex. DW1/F. He deposed that his son was falsely implicated in this case.
19. The Ld. Defence counsel argued that there are major contradictions in the testimonies of PWs. Whereas, the Ld. APP for the State has argued that there are some minor contradictions in the testimony of PWs which do not go to the root of the case and the accused cannot take benefit of such minor contradictions. I have also found that there are some contradictions in the testimony of the said PWs yet these contradictions are minor contradictions and do not go to the root or core of this case. In this context, a reliance is FIR No. 286/08 State Vs. Akash Bansal and anr. Page 25 of 32 placed upon the judgement reported as State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety. The Ld. Defence counsel further argued that no public witness was joined during investigation. It is pertinent to mention here that public persons are reluctant to become witnesses of criminal trial. Therefore, law is not that testimony of police officers is absolutely untrustworthy or that it can never be acted upon. It has been held in a catena of judgements by the Hon'ble Supreme Court and Hon'ble High Court of Delhi that merely because public witnesses are not joined in a case, the Prosecution case cannot be thrown out. In such circumstances, no benefit can be given to the accused for not joining of independent public witnesses. In this context, a reliance can be had upon the judgements reported as State of UP Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad & Anr. Vs. State 2002 (2) Crimes 63 (SC); Dr. Krishna Pal & Anr. Vs. State of UP 1996 (7) SCC 194.
20. It is evident from the evidence led by the Prosecution that PW3 in his oral testimony deposed that accused pointed upon him katta during the incident. However, the katta has not been FIR No. 286/08 State Vs. Akash Bansal and anr. Page 26 of 32 connected with the present case by the police. Neither the katta has been produced nor the same was shown to the witnesses during their testimonies. PW12 admitted in his examination in chief that he could not say that the katta was loaded or that it was recovered from the right dub of the pant of accused Akash Bansal. In this context, I would place a reliance upon the judgement reported in the case of Nanak Chand Vs. State of Delhi 1991 JCC 1, in a case under Section 25 Arms Act, the Hon'ble High Court held that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola. In Staila Sayyed Vs. State 2008 (4) JCC 2840, it was held that there was nonjoining of public witness at the time of arrest of accused and recoveries. All the witnesses to the recoveries were police officials. Such recoveries do not inspire confidence. FIR No. 286/08 State Vs. Akash Bansal and anr. Page 27 of 32 Therefore, in the present case, neither the katta was produced nor it was shown to the complainant for identifying the same. It seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about the recovery of katta. Therefore, the prosecution has failed to prove that katta was used by the accused at the time of incident.
21. During examination in chief, PW1 Shubhashish proved the statement of account of Abhinav S. Raghuvanshi for the period 01082008 to 31102008 as Ex PW1/C. As per said statement, there were four withdrawals through ATM on 19082008 in the sum of Rs. 20,000/, Rs. 5020/, Rs. 5020/ and Rs. 3020/. PW2 Surajit Baruah, Backup Branch Manager, HDFC Bank deposed in his examination in chief that he furnished details of withdrawal to the IO dated 19082008 from account no. 02931000020869 of Abhinav S. Raghuvanshi using ATM. Rs. 3100/ were withdrawn on 19082008 from the said account from Mukherji Nagar ATV vide ATM card no. 5264190103950324. Along with his reply Ex. PW2/A, he also enclosed bank account statement from 01082008 to 22082008. During crossexamination, PW3 Abhinav S. Raghuvanshi categorically deposed that he was kept in confinement in his car for about 3½ or 4 hours. The accused moved him around in the car in FIR No. 286/08 State Vs. Akash Bansal and anr. Page 28 of 32 the interiors of the colonies. The car was being driven at an average speed of about 3040 kmph and glasses of his car were light tainted. There was small logo of Ganesha in the centre of the ring and both the accused were pressing PW3 to give the PIN number. Accused were not known to PW3 prior to the incident. The accused carried out total four transactions and took out an amount of Rs. 33,000/ from Axis Bank ATM and Rs. 3,000/ from HDFC Bank ATM. PW3 also deposed in crossexamination that amount of Rs. 3000/ was withdrawn and due to lapse of time, he mentioned Rs. 4000/ instead of Rs. 3000/. PW3 denied the suggestion that accused Akash was not involved in the incident or that accused Akash never intercepted him nor he robbed him or pointed any gun at him. PW5 Ld. MM proved that accused refused to join the TIP proceedings. Abhinav Singh Raghuvanshi/ PW3 correctly identified the accused and case property i.e. gold ring and his Icard.
22. PW6 denied the suggestion that accused Akash Bansal was picked up from flat no. 1/14, Bengali Colony, near Punjabi Tadka Restaurant, Sant Nagar, Burari, Delhi on 20102008 at about 5 pm. PW7 in his crossexamination deposed that disclosure statements of the accused were recorded at the spot by SI Ravinder Verma. PW7 further deposed in his crossexamination that said FIR No. 286/08 State Vs. Akash Bansal and anr. Page 29 of 32 disclosure statements bear the signatures of SI Ravinder Verma, himself and the accused. The ICard and gold ring were got recovered by accused Govardhan on the next day of the incident i.e. 23102008 and at the time of recovery of the Icard and gold ring, PW7, SI Ravinder Verma and Ct. Rajender Singh were present. PW7 further deposed in his crossexamination that accused Govardhan had got recovered the gold ring and Icard from a suitcase but the said suitcase was not seized by them. Nonseizure of suitcase bears no effect on the merit of the case. PW7 denied the suggestion that gold ring and Icard were planted on the accused persons. PW8 in his crossexamination deposed that he had prepared the site plan at the spot. The Icard was of Law CentreI and in the name of Abhinav S. Raghuvanshi. PW8 further deposed that address of Abhinav S. Raghuvanshi was mentioned at the backside of the Icard but he did not remember his address. However, PW8 again said that it was Mayur Vihar address. PW8 denied the suggestion that he does not remember the address as he had planted the Icard and not recovered at the instance of accused Govardhan. It is pertinent to mention here that such minor facts i.e. the said "address" do not remain in the memory of the witness after a period of time. PW8 in his examination in chief has categorically FIR No. 286/08 State Vs. Akash Bansal and anr. Page 30 of 32 deposed that accused Akash Bansal and Govardhan gave separate disclosure statements which were recorded by him and accused Govardhan got recovered an Icard in the name of Abhinav S. Raghuvanshi and a gold ring from a suitcase. So far as the credit card and ATM card were concerned, the accused had thrown the same. PW6, PW7 and PW8 are the witnesses of the arrest and recovery of the gold ring and Icard. PW10 proved the FIR no. 286/08 which is pertaining to the present case. PW11 also proved that he brought the case property from the Malkhana of PS Crime Branch vide RC no. 23/21. PW13 proved on record that accused persons were arrested by him and he also got conducted TIP of the accused. PW13 denied the suggestion in his crossexamination that accused have been falsely implicated in the present case.
23. During crossexamination, DW1 admitted that his son Akash/accused was not having any enmity with complainant Abhinav Singh Raghuvanshi. DW1 further admitted in his cross examination that the accused Akash was arrested in this case. DW1 also admitted in his crossexamination that he did not make any PCR call to this effect. Even, DW1 had not filed any complaint case against the police officials of crime branch. Meaning thereby, DW1 deposed in the court only to save his son from prosecution of this FIR No. 286/08 State Vs. Akash Bansal and anr. Page 31 of 32 case. Thus, it has been proved by the Prosecution that accused in furtherance of their common intention abducted the complainant with intent to cause him to be secretly and wrongfully confined and also committed robbery. The aforesaid judgements, except the judgement in the case of Ghanshyam @ Bablu (supra) on the aspect of weapon used by the accused, relied upon by the Ld. Defence counsel are not applicable to the facts and circumstances of the present case.
24. In view of my aforesaid discussion, I am of the considered opinion that Prosecution has been able to prove its case against the accused beyond reasonable doubt. I, therefore, hold both accused namely Akash Bansal and Govardhan Singh guilty and convict them u/s 365/392/34 IPC.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 29082012 FIR No. 286/08 State Vs. Akash Bansal and anr. Page 32 of 32