Delhi District Court
State vs . Bharat Kumar Goswami & Ors. on 16 March, 2022
IN THE COURT OF MS. CHARU AGGARWAL
ADDITIONAL SESSION JUDGE-02: CENTRAL DISTRICT:
TIS HAZARI COURT: DELHI.
STATE VS. BHARAT KUMAR GOSWAMI & ORS.
CNR No. DLCT01-017361-2017
FIR No. 166/2017
PS: Subzi Mandi
U/s: 395/398/468/471/34 IPC
(i) SC No. of the case : 850/2017
(ii) Date of commission of offence : 30.06.2017
(iii) Name and address of accused : (i) Bharat Kumar Goswami
@ Azad, S/o Sh. Aman Pal
R/o H. No. 68, Rati Ram
Colony, Village Behta
Hazipur, Loni, Ghaziabad,
Uttar Pradesh.
(ii) Kanhaie Jha @ Kishan,
S/o Sh. Krishan Dev Jha,
R/o H. No. A-15, Sharma
Colony, Budh Vihar, Phase-II,
Delhi.
(iii) Azad @ Gaurav, S/o Sh.
Munna Lal, R/o H. No. 749/4,
West Rohtash Nagar,
Shahdara, Delhi.
(iv) Jitender @ Jittu, S/o Late
Sh. Dhani Ram, R/o H. No.
68, Rati Ram Colony, Village
Bheta, Hazipur, Loni,
Ghaziabad, Uttar Pradesh.
Digitally signed
by CHARU
CHARU AGGARWAL
AGGARWAL Date: 2022.03.16
17:09:55 +0530
State Vs. Bharat Kumar Goswami --Page 1 of 28--
(v) Sanjeet, S/o Sh. Karan
Singh R/o Gali No. 4, Near
Ashok Kiryana Store &
Pramod Chunni Wala,
Panchwati Colony, Ghaziabad
Uttar Pradesh.
(Proclaimed Offender vide
order dated 12.10.2017).
(iv) Offence complained of : 395/398/468/471 IPC
(v) Plea of accused : Pleaded not guilty
(vi) Final order : Accused persons Bharat
Kumar Goswami, Kanhaie
Jha, Azad @ Gaurav and
Jitender @ Jeetu
convicted for the
offence U/s 395 IPC,
Accused Bharat Kumar
Goswami is given benefit of
doubt for the offence U/s 397
IPC and is acquitted for the
offence U/s 397 IPC
(vii) Date of institution : 21.11.2017
(viii) Date of such order : 16.03.2022
JUDGMENT
1. The prosecution, in this case, has filed the chargesheet against four accused persons alleging commission of offence U/s 395/398/464/471 IPC. As per the chargesheet, total five accused were involved in the alleged incident but one of the accused Sanjeet during investigation was declared Proclaimed Offender and has not been arrested till now.
2. The case of the prosecution summed up in the chargesheet is Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date:
2022.03.16 17:10:04 +0530 State Vs. Bharat Kumar Goswami --Page 2 of 28-- that the only victim of the incident namely Manish Aggarwal is doing the business of mattresses in the name of "Mahal International" at Village Hiran Kudna, Delhi. On 30.06.2017, he came to Chandni Chowk at "Jayanti Parveen Firm", at 320, Kucha Ghansi Ram, Chandni Chowk, Delhi, to collect payment. On that day, at about 05:30 PM, he after collecting the payment of Rs.2,64,000/- kept by him in his bag, left Chandni Chowk in a rickshaw for Tis Hazari Metro Station. At about 05:50 PM, he reached at Tis Hazari Metro Station and while he was going at Footover Bridge, two boys followed him on Footover bridge out of whom one snatched his bag having cash and other documents. Thereafter, they both ran away from there. He (victim) chased those boys and saw that two more boys were already standing on two different bikes on the road and the boys who came on Footover Bridge sat on those bikes and ran away from the spot. The victim in his initial statement said that he can identify those boys if shown to him. On this statement of the victim, on the same day of incident, the FIR of this case was registered and investigation was carried out.
On the next day of the incident i.e. 01.07.2017, the complainant gave his supplementary statement in which he stated that one of the snatcher was also having pistol with him at the time of incident which he (victim) could not disclose on 30.06.2017, due to fear. He further said in his supplementary statement that in the bag snatched by the wrong doers, one cheque book of Syndicate Bank of his firm "Morph Industries"
having account no. 91711010000032, one cheque book of State Bank of India of account no. 32015241943, two stamps of "Morph Industry" & Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date:
2022.03.16
17:10:13 +0530
State Vs. Bharat Kumar Goswami --Page 3 of 28--
"Mahal International" and certain photocopies of the documents, were also there. The denomination of Rs.2,64,000/- was given by him as 132 currency notes of Rs of Rs.2000/- each.
3. On 04.07.2017, accused Bharat Goswami, Kanhaie Jha and Azad @ Gaurav were arrested in FIR No. 104/17 u/s 25/54/59 Arms Act police station Crime Branch, in which they disclosed their involvement in the incident of this case. On 05.07.2017, DD No. 48 B was registered regarding the arrest of these accused persons in FIR No. 104/17 and their disclosure regarding this case. On 07.07.2017, Sub Inspector, Crime Branch, produced these accused persons in the court of Ld. CMM, Central, in muffled face, where, IO of this case moved an application for interrogation of these accused persons and after interrogation, all these three accused were arrested in the present case. IO moved an application for Test Identification Parade before the court but all these three accused refused to participate in the Test Identification Parade on the ground that they have been shown to various people and their photographs have been clicked. IO took three days Police Remand of these accused from the concerned court. Disclosure statements of these accused persons were recorded by the IO in which they alongwith accused Sanjeet (Proclaimed Offender) and Jitender @ Jitu disclosed their involvement in the incident of this case that they all in connivance with each other committed the offence of this case. As per the disclosure statements of accused Bharat Kumar, Kanhaie Jah and Azad @ Gaurav, it was accused Jitender @ Jitu who used to provide information to them about the businessmen who collect payment from the area of Chandni Chowk and on receipt of the Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.16 17:10:20 +0530 State Vs. Bharat Kumar Goswami --Page 4 of 28--
information, these three accused persons alongwith co-accused Sanjeet (PO) used to commit theft/robbery/decoity with the businessmen and in this case also, on receipt of information from accused Jitender @ Jitu regarding receiving of payment by victim of the crime, they all four, Bharat Kumar Goswami, Kanhaie Jha, Azad @ Gaurav and Sanjeet, (PO) committed robbery with him. As per the discloser statements of the accused persons, accused Kanhaie Jha and Bharat Kumar Goswami chased the victim at Footover Bridge. Accused Kanhaie Jha snatched the bag, accused Bharat Kumar Goswami showed him pistol and accused Azad & Sanjeet kept waiting for them on the bikes standing on the road. On the basis of disclosure statements of these accused persons, accused Jitdender @ Jitu was arrested but despite efforts, the police could not arrest accused Sanjeet, therefore, he was declared Proclaimed Offender.
4. During investigation, in pursuant to the disclosure statement of the accused persons, the following recoveries were effected from them:-
(i) Bharat Kumar Goswami:-
At the time of his arrest on 05.07.2017 in FIR No. 104/2017, PS Crime Branch, Rs.20,000/- were recovered from him. As per the disclosure statement of this accused out of the robbed amount of Rs.2,64,000/-, Rs.52,000/- came to his part out of which Rs.20,000/- has been seized in the FIR no. 104/2017, U/s 25/54/59 Arms Act, PS Crime Branch.
(ii) Kanhaie Jha:-
At the time of his arrest on 05.07.2017 in FIR No. Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.16 17:10:36 +0530 State Vs. Bharat Kumar Goswami --Page 5 of 28--
104/17, PS Crime Branch, cash of Rs.1,12,000/- was recovered from him. As per the disclosure statement of this accused, out of the robbed amount of Rs.2,64,000/-, Rs.56,000/- came to his part which were seized in the FIR No. 104/17. On 08.07.2017, accused got recovered from his house one cheque book of the complainant of account no. 32015241943;-
(iii) Azad @ Gaurav:-
At the time of his arrest on 05.07.2017 in FIR No. 104/17, PS Crime Branch, cash of Rs.1,89,000/- was recovered from him. As per his disclosure statement, out of the robbed amount of Rs.2,64,000/-, Rs.52,000/- came to his part. On 08.07.2017, accused got recovered from his house two stamps of the complainant's firm and photocopy of one Aadhar Card of his wife;
(iv) Jitender @ Jitu:-
On 08.07.2017, accused Jitender @ Jitu was arrested in the present case from whose possession scooty bearing no. DL-6 SAH-9023, which he used in the crime by chasing the victim from Chandni Chowk to Metro Station Tis Hazari, cash of Rs.2,90,000/- out of which Rs.52,000/- is shown as case property of this case AND one cheque book of account no.
91711010000032, were recovered.
Digitally signed by CHARU AGGARWAL CHARU Date: AGGARWAL 2022.03.16 17:10:43 +0530 State Vs. Bharat Kumar Goswami --Page 6 of 28--
5. During the course of investigation, the IO collected the Call Detail Record (CDR) of all the accused persons and the victim and on analyzing all the CDRs, it was found that on the day and time of the incident, all accused were in constant touch with each other and at the time of incident, their location is also changing with the location of the victim and they were found to be present at the spot on the date and time of the incident.
6. After completion of investigation, chargesheet was filed in the court of concerned Ld. Metropolitan Magistrate (MM), who after compliance of Section 207 IPC, committed the case to Session.
Vide order dated 19.01.2018, charge u/s 395 IPC against accused Bharat Kumar Goswami, Kanhaie Jha, Azad @ Gaurav and Jitender @ Jitu, charge U/s 397 IPC upon accused Bharat Kumar Goswami and charge U/s 392 IPC upon accused Kanhaie Jha, Azad @ Gaurav and Jitender @ Jittu was framed. However, accused Jitender @ Jitu was discharged for the offence U/s 468/471 IPC observing that the material on record is not sufficient to frame charge under these provisions. Thereafter, matter was fixed for Prosecution Evidence.
7. In order to prove its case, the prosecution has examined as many as 23 witnesses.
PUBLIC WITNESS
8. PW-1 is Sh. Manish Aggarwal, the only victim of the crime, who has stated that he is running a factory of mattresses under the name and style of "Mahal International", at Mundka, Delhi. On the date of his deposition in the court i.e. 10.04.2018, he said that he does not remember Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date:
2022.03.16 17:10:50 +0530 State Vs. Bharat Kumar Goswami --Page 7 of 28-- the date or month of the incident, however, it was somewhere in March or April-2017 or in June-2017, he collected payment of Rs.2,64,000/- from "Jayanti Parveen" at Kucha Ghasi, Chandni Chowk against supply of mattresses. After collecting the payment, he left Chandni Chowk in a battery rickshaw for Tis Hazari Metro Station. At about 6 p.m. when he got down from the rickshaw, he proceeded towards Footover Bridge, Tis Hazari Metro Station. Suddenly, two boys came from his back out of them, one was armed with a gun which he aimed at this PW and signalled him to hand over his bag to him. The bag was snatched by the said person from the hand of this PW which was containing 132 currency notes of Rs.2,000/- denomination, cheque book in the name of Mahal International, another cheque book of SBI Branch, Rohini, Sector-3 and two stamps, one of his firm Mahal International and Morps Industries. Thereafter, both boys ran away downstairs where two another boys were already waiting for them on a motorcycle on which they all ran way. This PW made a call at 100 number where his statement Ex. PW1/A was recorded. Later on, he came to know about recovery of Rs.1,80,000/- from the offenders which he got released on superdari. He identified accused Azad and Bharat Kumar Goswami who on the date of incident came at the Footover Bridge and accused Bharat Goswami aimed pistol at him. He has further stated that he cannot identify as to which accused removed his bag.
Ld. Addl. PP cross-examined this witness and during his examination on the pointing out by Ld. Addl. PP he identified accused Kanhaie Jha as the assailant who snatched his bag. He also stated that one person was chasing him when he left Chandni Chowk but he cannot Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.16 17:10:58 +0530 State Vs. Bharat Kumar Goswami --Page 8 of 28-- identify the said person.
9. PW-18 is Sh. Kamlesh Kumar, who has stated that in the year 2017, he was Manager with "Jayanti Lal Praveen Kumar" firm running at Kucha Khasi Ram at Chandni Chowk. One of the partner of the said firm was Sh. Prahlad Ram. Head office of the firm was at Ahmadabad. On 29.06.2017, one Sh. Ashish had booked a parcel from Bhilwada and the said parcel was to be delivered to Sh. Manish Aggarwal. The said parcel was containing cash of Rs.2,64,000/-. The said parcel was opened by Sh. Manish Aggarwal in the presence of this PW on 30.06.2017 which was containing Rs.2,64,000/-. The said parcel was kept by Manish Aggarwal in his bag. Thereafter, he left from there at about 4.30 p.m. with his bag. NODAL OFFICER(S)
10. PW-2 is Sh. Pawan Kumar, Nodal Officer from Vodafone who brought the record of mobile No. 8860449949. As per the CAF (Ex. PW2/A), the said phone was in the name of Manish Aggarwal. The identity document annexed by Manish Aggarwal at the time of obtaining the phone are Ex. PW2/B. The CDRs of the said number from 01.06.2017 to 02.07.2017 are Ex. PW2/C. The certificate u/s 65 B of Evidence Act is Ex. PW2/D and sale ID charge is Ex. PW2/E.
11. PW-3 is Sh. Yatin Chawla, Nodal Officer from Reliance Jio, who brought record of SIM No. 7678626077. As per the CAF (Ex. PW3/A), the said SIM was in the name of Suraj Kumar. The CDRs of the said number from 01.06.2017 to 02.07.2017 are Ex. PW3/B. The certificate u/s 65 B of Evidence Act is Ex. PW3/C.
12. PW-7 is Rajeev Ranjan, Nodal Officer from Tata Tele Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.16 17:11:05 +0530 State Vs. Bharat Kumar Goswami --Page 9 of 28--
Services, who brought the record of SIM No. 9212649949. As per CAF(EX. PW3/A) the said number was in the name of Sh. Manish Aggarwal. He also brought the CDR (Ex. PW7/B) of the said SIM from 01.06.2017 to 02.07.2017. The location chart of the said number is Ex. PW7/C. Certificate u/s 65 B of Evidence Act is Ex. PW7/D. He supplied all the documents relating to this SIM to IO vide forwarding letter Ex. PW7/E to IO.
13. PW-16 is Sh. Pawan Kumar, Nodal Officer from Vodafone, Idea, who brought the record of SIM No. 8506066815 and 8510967074, As per the CAF of mobile No. 8510967074, the said number was in the name of Swati Gupta. CAF and election Identity card in the name of Swati Gupta are Ex. PW16/A. The CDR of the said number is Ex. PW16/B. The CDR of mobile No. 8506066815 is Ex. PW16/C. Certificate u/s 65 B of Evidence Act is Ex. PW16/D. The sale ID charge is Ex. PW16/E.
14. PW-17 is Sh. Rajeev Vashisht, Nodal Officer, Bharti Airtel, who has brought the record of SIMS No. 9958081077, 9599541224 and 99111082067. As per CAF (Ex. PW17/A), the mobile No. 9958081077 was in the name of Sh. Gaurav. CDR of the said number is Ex. PW17/B. Certificate u/s 65 B of Evidence Act is Ex. PW17/C. As per CAF (Ex. PW17/D), the mobile No. 9599541224 was in the name of Kanahiya Jha. CDR of the said number is Ex. PW17/E. As per CAF (Ex. PW17/F), the mobile No. 99111082067 was in the name of one Sandeep. CDR of the said number is Ex. PW17/G. Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.16 17:11:11 +0530 State Vs. Bharat Kumar Goswami --Page 10 of 28--
POLICE WITNESSES
15. PW-4 is HC Somvir, who has stated that on 30.06.2017, he was on emergency duty from 8 a.m. to 8 p.m. at police station Subzi Mandi. On 30.06.2017 DD No. 24 PP was marked to ASI Anand Pal. This PW alongwith ASI Anand Pal accompanied at footover bridge, Tis Hazari Metro Station where they met complainant Manish Aggarwal whose statement was recorded by ASI Anand Pal. On the basis of said statement, ASI Anand Pal prepared ruqqa and handed over to this PW. This PW reached at police station Subzi Mandi where he got registered the FIR of this case. The ruqqa and FIR was handed over to SI Sanjay Gupta who alongwith this PW came at the spot.
16. PW-5 is Constable Fakir Chand, who has stated that on 05.07.2017 he was posted at police station Subzi Mandi as DD writer from 4 p.m. to 12 midnight. On that day at about 7 p.m. information was received from HC Ajay, Crime Branch that three accused Azad, Kanahai Jha and Bharat Goswami have been arrested in Arms Act and they had made disclosure regarding their involvement in the present case. This PW recorded DD No. 48 B(Ex. PW5/A) regarding the information received in the police station and handed over the copy of DD to SI Sanjay Gupta and to ASI Lekh Pal.
17. PW-6 is ASI Rajender who has stated that on 30.06.2017 he was posted at police station Subzi Mandi as duty officer from 4 p.m. to 12 midnight. At about 3.30 a.m. HC Somvir brought a ruqqa sent by ASI Anand Pal. On the basis of said ruqqa, this PW recorded FIR (Ex. PW6/A) of this case on which he made endorsement (Ex. PW3/B). He issued Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.16 17:11:19 +0530 State Vs. Bharat Kumar Goswami --Page 11 of 28--
certificate u/s 65 B of Evidence Act( EX. PW6/C) and handed over the ruqqa and copy of FIR to HC Somvir.
18. PW-8 HC Niraj, PW9 HC Ajay and PW10 ASI Jaswinder, they all have stated that on 04.07.2017 they were posted at SIU Crime Branch. On that day on the basis of secret information, accused Azad, Bharat Bhushan and Kanhaie Jha were arrested in case FIR No. 104/17 u/s 25 Arms Act, police station Crime Branch. In the presence of these PWs, accused Bharat Goswami, Kanhaie Jha and Azad gave their disclosure statements Ex. PW8/A, Ex. PW9/A and Ex. PW10/A respectively disclosing his involvement in the present case.
19. PW-11 is constable Vikram, who has stated that on 08.07.2017 he was posted at police station Subzi Mandi and joined investigation of this case with IO SI Sanjay Kumar. On that day accused Kanhaie Jha led the police team at Karol Bagh, Gaffar Market and pointed out one scooty bearing No. DL-6S-AH-9023 parked in front of shop No. 2958/41 and said that the scooty belongs to co-accused Jitu. On inquiry by the police, it was revealed that Jitu had been working in the mobile shop at the above address. Accused Jitender @ Jitu was arrested from his shop. IO interrogated him and seized the scooty. Accused Jitu led police team at his residence at Sadar Bazar and from his locker Rs.2,90,000/- was recovered which he disclosed to have been robbed in several robberies. IO seized the said amount vide seizure memo Ex. PW11/A. Out of Rs.2,90,000/-, Rs.52,000/- were belonging to this case which was correctly identified by these PWs.
20. PW-12 is ASI Pramod, who has stated that on 04.07.2017, he Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.16 17:11:30 +0530 State Vs. Bharat Kumar Goswami --Page 12 of 28--
was posted at SIU, Crime Branch. On that day on receipt of secret information accused Azad, Bharat Bhushan and Kanhaie Jha were apprehended in Arms Act case. Cash of Rs.20,000/- was recovered from the possession of accused Bharat Bhushan which was seized by this PW. Cash of Rs.1,89,000/- and cash of Rs.1,12,000/- were recovered from the possession of accused Azad and Kanhaie Jha respectively which were seized by this witness. The investigation was handed over to ASI Pawan, to whom the seizure memos were handed over.
21. PW-13 is HC Dharaminder, who was MHC(M) at police station Subzi Mandi on 08.07.2017. He had stated that on that day SI Sanjay Kumar Gupta deposited one scooty bearing registration No. DL-6S- AH-9023 and cash of Rs.2,90,000/-, two rubber stamps, photo copy of one Aadhar card and personal search articles of accused Jitender. Regarding the above deposit, this PW made entry in register NO. 19 at Sr. No. 1914 on 08.07.2017.
22. PW14 is Const. Lokvinder who has stated that on 08.07.2017 at the instance of accused Kanhaie Jha scooty bearing No. DL-6S-AH-9023 was recovered and accused Jitender was arrested. The said scooty was stated to be belonging to accused Jitender.
23. PW-15 is ASI Anand Pal, who has stated that on 30.06.2017 he was posted at police station Subzi Mandi. On that day DD No. 24 PP (Ex. PW15/A) was marked to him. This PW accompanied HC Somvir at the spot where they met complainant Manish Aggarwal. This PW recorded his statement (Ex. PW1/A). On the basis of said statement, this PW prepared ruqqa and handed over to HC Somvir, who got registered the FIR Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.16 17:11:37 +0530 State Vs. Bharat Kumar Goswami --Page 13 of 28--
of this case. HC Somvir alongwith ASI Sanjay Gupta came back at the spot and interrogated complainant Manish Aggarwal and prepared site plan.
24. PW-20 is constable Ravinder who has stated that on 07.07.2017 he was posted at PP Tis Hazari. On that day, on the instructions of IO, he went to the office of Crime branch and collected the relevant documents of FIR No. 104/17 police station Crime Branch. After collecting the relevant documents , the same was handed over to him by constable Sanjay Kumar Gupta. IO SI Sanjay Gupta in presence of this PW moved this application before Ld. CMM for interrogation of accused Bharat Kumar Goswami, Kanhaie Jha and Gaurav. After interrogation, all the three accused persons are arrested in the present case vide arrest memos, their disclosure statements were recorded and personal search was conducted vide memos Ex. PW20/A to PW20/J. On 09.07.2017, IO SI Sanjay Gupta obtained one day police custody remand of accused Jitu. Accused Jitu took police team at his house at Sadar Bazar, from where he got recovered one Syndicate Bank cheque book, which was seized by the IO vide seizure memo Ex. PW20/K. Thereafter, accused Kanhaie Jha led the team at his house from where he got recovered one another cheque book seized by the IO vide seizure memo Ex. PW20/L. Thereafter, accused Azad took police team at his house from where he got recovered two stamps, which were seized by the IO vide seizure memo Ex. PW20/M.
25. PW-21 is ASI Panwati, who brought the original rojnamcha containing DD No. 24 PP (Ex. PW15/A).
26. PW-22 is ASI Pawan Kumar, IO of FIR No. 104/17 PS Crime Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.16 17:11:44 +0530 State Vs. Bharat Kumar Goswami --Page 14 of 28--
Branch, who has stated that he arrested accused Kanhaie Jha, Bharat Kumar Goswami and Azad in the said FIR. He has stated that during investigation of the said FIR, all these three accused disclosed their involvement in the present FIR.
27. PW-23 is IO SI Sanjay Gupta, who has stated that on 30.06.2017, he was in-charge at PP Tis Hazari. On that day, investigation of the present FIR was handed over to him. He collected the FIR and ruqqa from the DDO and went at the spot where they met complainant Sh. Manish Aggarwal and ASI Anand Pal. He prepared rough site plan Ex. PW23/A at the instance of complainant. He recorded the supplementary statement of the complainant on 01.07.2017. On 05.07.2017, he received DD No. 48 B from constable Fakir Chand regarding the arrest of accused Kanhaie Jha, Azad and Bharat Kumar Goswami. On 07.07.2017 this PW sent constable Ravinder at the office of Crime branch for collection of relevant documents of FIR No. 104/17. Constable Ravinder after collecting the documents, handed over the same to this PW. Thereafter, he moved an application before Ld. CMM for interrogation of these three accused. After interrogation, all these three accused were arrested in the present case, their disclosure statements were recorded and their personal search was conducted by this PW vide memos Ex. PW20/A to PW20/J. All these three accused persons refused to participate in TIP proceedings. On 08.07.2017, these accused got arrested co-accused Jitender from whose possession scooty bearing No. DL-6S-AH-9023 was recovered and seized. Accused Jitender also got recovered Rs.2,90,000/- in cash and one cheque book of the complainant from his house. He has also deposed regarding the Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.16 17:11:51 +0530 State Vs. Bharat Kumar Goswami --Page 15 of 28--
recovery effected from other three accused persons. FORMAL WITNESS (AHLMAD OF THE COURT)
28. PW-19 is Jai Prakash Bhardwaj, Assistant Ahlmad in the Court of Ld. CMM, Central, who brought the judicial record of FIR No. 104/17 police station Crime Branch. The file of the said case was containing seizure memo of Desi Kattta, seizure memo of Rs.1,89,000/- cash, seizure memo of motor cycle bearing No. DL-5SBB 1397, disclosure statement of accused Kanhaie Jha, Bharat Kumar Goswami and Azad, seizure memo of two live cartridges, seizure memo of cash of Rs.20,000/-, seizure memo of motor cycle bearing No. DL-5S-BB-0158.
All the witnesses were cross-examined by the counsel for the accused persons.
29. After completion of prosecution evidence, statements U/s 313 Cr.PC of all accused persons were recorded in which they stated that they have been falsely implicated in the present case and false recoveries have been planted upon them. They have further stated that they refused to participate in TIP proceedings since they were already shown to the complainant and other public persons. They also said that during their police remand, they were taken to Crime Branch Officer where they were shown to many public persons including the complainant of this case and even during the evidence, the IO shown the accused persons to the complainant outside the court room.
30. I have heard the arguments of Ld. APP and Ld. Counsels for all the accused persons.
31. Ld. APP has argued that prosecution has proved its case Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.16 17:11:58 +0530 State Vs. Bharat Kumar Goswami --Page 16 of 28--
beyond reasonable doubt against all the accused persons facing trial before the court. He has argued that as per the testimony of PW-1, the only victim of the crime, total four accused were present at the spot and during investigation the role of fifth accused Jitender also surfaced against whom sufficient evidence was collected by the IO, therefore, this is a clear case for convicting the accused persons U/s 395 IPC. He has also argued that prosecution has also successfully proved its case U/s 397 IPC against accused Bharat Kumar Goswami since PW-1 in his testimony has categorically deposed that this accused shown him pistol while looting his bag from him.
32. Per contra, Ld. Defence Counsels have argued that the prosecution has miserably failed to prove it case beyond reasonable doubt since PW-1 is not a reliable witness as in his initial statement recorded on the day of incident itself, he did not disclose regarding use of any weapon by either of the assailant of the crime but the factum of use of weapon was added by him on the next day of incident. Even, in court he initially identified accused Azad @ Gaurav as one of the robber who came at the Footover Bridge and snatched his bag but when he was cross examined by Ld. APP, he named accused Kanhaie Jha as assailant who snatched his bag. It is argued that prosecution has failed to prove the identity of either of the accused persons as assailants of the crime who allegedly robbed the complainant (PW-1). It is further argued that in the chargesheet itself it is mentioned that accused persons were shown to the complainant in the Office of Crime Branch which is argued to be contrary to the settled principle of law. It was argued that if the wrong doers are arrested later on, Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.16 17:12:16 +0530 State Vs. Bharat Kumar Goswami --Page 17 of 28--
after few days of the incident, then they cannot be shown to the victim prior to their TIP and in case of refusal of TIP the police cannot show the assailants of the crime to the victim up till the evidence of the victim is recorded in the court. Ld. Counsels have argued that in the case in hand, as per own case of the prosecution contained in the chargesheet, the IO shown the accused persons to the complainant in the police station itself which is also being admitted by PW-1 that he saw the accused persons in the Office of Police Station Crime Team, therefore, it was urged that all the accused persons deserves benefit of doubt on their identification.
33. The other argument of Ld. Defence Counsels is that the recovery shown from the accused persons is also doubtful since IO had not made any independent witness at the time of said recoveries.
34. All the Ld. Defence Counsels in one voice have argued that bare perusal of the chargesheet show that the ingredients of Section 395 IPC are missing since only four accused have faced trial of the case and no fifth accused has been brought on record by the prosecution before the court to prove that any fifth accused was also involved in the incident, therefore, it is argued that as per the prosecution itself only four accused were involved in the alleged robbery which miss one of the most essential ingredient for invoking Section 395 IPC for which minimum five accused should be involved in the incident.
35. Ld. Counsel for accused Jitender @ Jitu has additionally argued that IO has falsely implanted recovery of mobile phone having sim bearing no. 8510967074, on this accused. It is argued that as per the own case of the prosecution came on record from the testimony of PW-16 Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.16 17:12:22 +0530 State Vs. Bharat Kumar Goswami --Page 18 of 28--
Pawan Singh, Nodal Officer from Vodafone, the said sim was in the name of one Swati Gupta and as per the own case of the prosecution in the chargesheet, the said Swati Gupta had no connection with accused Jitender @ Jitu, therefore, the prosecution failed to prove the connection of accused Jitender with the sim bearing no. 8510967074.
36. I have considered the arguments advanced by Ld. APP & Ld. Counsels for the accused persons and perused the record including the written arguments filed by the accused persons.
37. The prosecution in order to prove its case has to establish the occurrence of incident and identity of the accused persons facing trial before the court beyond reasonable doubt. In the case in hand, PW-1 Manish Aggarwal, the only victim and eye witness of the crime, is the prime witness of the prosecution around whom the entire case is revolving, who saw the assailants while committing the robbery with him.
38. The testimony of PW-1 on the incident is consistent that on 30.06.2017, at about 04:30 PM, he after collecting the payment of Rs.2,64,000/-, kept by him in a bag left Chandni Chowk in a rickshaw for Tis Hazari Metro Station where two boys stalked him, out of whom one was armed with the pistol and at the point of pistol those boys snatched his bag containing cash of Rs.2,64,000/- and certain other documents, thereafter, both the said boys ran towards the road side where two other boys were already standing on two different motorcycles and the former sat on those motorcycles and ran away from the spot. The testimony of PW-1 regarding collection of money from the area of Chandni Chowk is supported with the testimony of PW-18 Kamlesh Kumar from whose shop Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.16 17:12:29 +0530 State Vs. Bharat Kumar Goswami --Page 19 of 28--
the said amount was collected by PW-1. Even, the Call Detail Record (Ex. PW-2/A) proved by the prosecution from the testimony of PW-2, Sh. Pawan Kumar, Nodal Officer, Vodafone, the location of PW-1, on the date and time of the incident was found to be of the spot i.e. Tis Hazari Metro Station. Nothing has come in the cross examination of PW-1 which may cast doubt on his testimony on the occurrence and may lead the case of the prosecution under the shadow of clouds.
39. As discussed hereinabove, the Prosecution has succeeded in proving occurrence of incident with PW-1. Now, the court has to evaluate whether the accused persons facing trail before the court has committed the offence as alleged against them, whether their identity is proved by the Prosecution beyond reasonable doubt and whether the material on record is sufficient to record their conviction for the incident occurred with PW-1.
40. First, I will deal with the identity of the accused persons which in a criminal case plays vital role to connect the accused with the incident, when the accused are unknown to the victim. In this case, the accused persons were unknown to the victim (PW1), therefore, their identity by PW1 assumes importance. Here, the incident is of 30.06.2017. On 04.07.2017, accused Bharat Kumar Goswami, Kanhaie Jha and Azad @ Gaurav were arrested in FIR No. 104/2017, u/s 25/54/59 Arms Act PS Crime Branch, in which their disclosure statements were recorded wherein they disclosed their involvement in the present case alongwith accused Jitender @ Jitu and accused Sanjit (PO). The accused persons facing trial before the court were arrested in the present case on 07.07.2017. On the same day, IO moved application for their TIP but they refused to Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.16 17:12:37 +0530 State Vs. Bharat Kumar Goswami --Page 20 of 28--
participate in Test Identification Parade on the pretext that their photographs have been clicked by the IO and they have been shown to the victim (PW-1) in the police station. The stand of accused persons that they refused to participate in the TIP proceedings since their photographs were clicked and shown to PW-1 in the police station has no merit since PW-1, during his evidence, has stated that accused persons were shown to him in the police station of Crime Branch and Subzi Mandi on 10.07.2017 i.e. after TIP proceedings, which took place on 07.07.2017. Even, accused persons during their statements recorded U/s 313 Cr.PC have stated that during their police remand, they were taken to the Office of PS Crime Branch and were shown to PW-1 further supports the statement of PW-1 that accused persons were shown to him post TIP proceedings but not prior to that, therefore, the refusal of accused persons to participate in TIP proceedings, is without any reason, hence, the adverse inference can be drawn against them.
41. Now, comes the testimony of PW-1, on the identification of accused persons, who in his initial statement Ex. PW1/A said that he can identify the assailants of the crime. At this stage, the role attributed to each accused in the crime is relevant to be mentioned. As per the Prosecution, accused Bharat Kumar Goswami and Kanhaie Jha went at the Footover Bridge and looted the bag of PW-1. Accused Bharat Kumar Goswami is alleged to have shown pistol to PW-1. Accused Azad @ Gaurav and Sanjit (PO) are alleged to be standing on the road on two different motorcycles. PW-1 during his evidence correctly identified accused Bharat Kumar Goswami as one of the robber who came at the Footover Bridge and Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.16 17:12:43 +0530 State Vs. Bharat Kumar Goswami --Page 21 of 28--
snatched his bag. But, during chief examination PW-1 identified accused Azad @ Gaurav as assailant who was accompanying accused Bharat Kumar Goswami on the Footover Bridge. However, when he was cross examined by Ld. APP on the same day, on the identification of accused Kanhaie Jha as one of the robber who came at the Footover Bridge alongwith accused Bharat Kumar Goswami, he (PW-1) correctly identified accused Kanhaie Jha as one of the wrong doer who came to Footover Bridge to rob his bag. The deposition of PW1 on the identification of accused Bharat Kumar Goswami is unblemished. There is some discrepancy in the identification of accused Kanhaie Jha by PW1 and this Court is conscious of the well settled law that the identification of the accused first time in the Court by the victim is weak kind of evidence unless corroborated with other relevant material. In the case in hand, apart from the identification of accused Bharat Kumar Goswami and Kanhaie Jha by PW1 in the Court, the Call detail record(Ex.PW17/E) of mobile bearing No. 9599541224, registered in the name of accused Kanhaie Jha as per CAF (Ex. PW17/D) is also duly proved by the prosecution, showing his presence at the spot on the date and time of the incident and the recovery of complainant's cheque book from his possession in pursuance to his disclosure statement is strong corroborative evidence against accused Kanhaie Jha. The minor discrepancy in the identification of accused Kanhaie Jha by PW-1 in the Court becomes inconsequential in view of the other supporting evidence in favour of prosecution and against accused Kanhaie Jha. The accused Kanhaie Jha was unknown to PW1 whose evidence was recorded in the Court after 10 months of the incident, Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.16 17:12:50 +0530 State Vs. Bharat Kumar Goswami --Page 22 of 28--
therefore, the Court cannot rule out the possibility that due to lapse of time PW-1 might have got confused in the identity of accused Kanhaie Jha with accused Azad but when Ld. APP specifically pointed out towards accused Kanhaie Jha, he (PW-1) recollected that it was Kanhaie Jha who was accompanying accused Bharat Kumar Goswami at the time of snatching his bag. The truthfulness and trustworthiness of PW-1 can be gathered from his further deposition that when Ld. APP specifically pointed out towards accused Azad and Jitender for their identification by PW1, he categorically denied to identify them saying that he did not see these two accused persons on the day of incident. No previous enmity between Bharat Kumar Goswami & Kanhaie Jha and victim (PW1) has come on record due to which the later would have falsely implicate them. From the deposition of PW-1, the prosecution has duly proved the identity of accused Bharat Kumar Goswami and Kanhaie Jha that on the day of incident, they went on the Footover Bridge of Tis Hazari Metro Station and robbed the bag of PW-
1.
42. Next, is the identity of accused Azad @ Gaurav and Jitender @ Jitu. So far as, the accused Azad is concerned, as per Prosecution he was standing on the motorcycle on the road. He was identified by PW-1 in the court as one of the wrong doer who came over the Footover Bridge but when Ld. APP pointed out towards accused Kanhaie Jha, PW-1 identified accused Kanhaie Jha as a robber who came over the Footover Bridge. The identification of accused Azad by PW-1 was not required in view of the role attributed to him in the incident as since beginning it is the case of the prosecution that PW-1 actually saw only two accused who came over Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.16 17:12:56 +0530 State Vs. Bharat Kumar Goswami --Page 23 of 28--
Footover Bridge and only observed that those two robbers sat on the motorcycle of other two persons standing on the road and out of those two persons standing on the road, one is alleged to be accused Azad. The case against him has to be proved by the prosecution from the circumstances and other connecting evidence on record against him. As per the Customer application form (Ex. PW-17/A) of mobile bearing no. 9958081077 is in the name of accused Azad @ Gaurav and as the CDR (Ex. PW-17/B) of this number, on the date and time of the incident, he was present at the spot. In pursuant to disclosure statement of accused Azad, apart from the cash of Rs.52,000/- of this case, two stamps of complainant's firm and photocopy of one Aadhar Card of complainant's wife were also recovered from his possession which further corroborates the case of the prosecution that accused Azad was involved in the incident happened with PW-1 and assisted other co-accused persons in committing the robbery.
43. Insofar as, the identity of accus4ed Jitender @ Jitu. Even, his identification by PW-1 was not required since as per own case of the prosecution, he was not seen by PW-1. The role assigned to him in the crime is that he used to provide information to the accused persons about the businessmen who used to collect payment from the area of Chandi Chowk. He is alleged that on the day of incident, he was chasing PW-1 from Chandni Chowk to Tis Hazari Metro Station. The prosecution has to prove the case against him from the circumstances and the other evidence on record. As per the Prosecution, one sim bearing no. 8510967074, was recovered from the possession of this accused during his personal search which was found in the name of one Swati Gupta. During investigation, Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.16 17:13:02 +0530 State Vs. Bharat Kumar Goswami --Page 24 of 28--
police recorded the statement of father of Swati Gupta who said that the said sim bearing no. 8510967074, was never in the name of his daughter and the photographs on the Customer Application Form (CAF) is also not of his daughter. The prosecution has established that the sim of the above mobile number was recovered from the possession of accused Jitender @ Jitu and he has failed to explain as to how the said sim came in his possession and the CDR placed on record by the prosecution is inconsonance with the case of prosecution that the user of said sim was chasing PW-1 from Chandni Chowk to Tis Hazari Metro Station and was in continuously in touch with other accused persons and on the date and time of incident he was present at the spot. In pursuance to the disclosure statement of this case, even the recovery of case property i.e. cheque book and cash of PW-1 was also effected from this accused.
44. The other connecting evidence against the accused persons are the recoveries effected from them in pursuant to their disclosure statements. As already noted in para no. 4 of this order, that part of robbed cash amount, both cheque books, two stamps of complainant's firm and one photocopy of Aadhar Card of his wife were recovered from the possession of the accused persons. The accused have failed to explain as to how the stamps, cheque books and photocopy of Aadhar Card of complainant's wife came into their possession which are his (PW-1) personal/private property over which no one else can have access. Not even a suggestion has been put to the witnesses to confront the recoveries effected from the accused persons. The cash recovered from the accused persons have already been released on superdari in favour of PW1 vide order dated 17.07.2017 passed Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.16 17:13:08 +0530 State Vs. Bharat Kumar Goswami --Page 25 of 28--
by Ld. MM. The argument of defence counsels that no independent witness has joined the proceedings is without any force as these days no public person wants to join the police or court proceedings may be due to apprehension that they themselves might not get entangled in any criminal case in future.
45. The Call detail records of accused Kanhaie Jha, Jitender @ Jitu and Azad @ Gaurav proved by the prosecution are also evident to hold that on the day and time of the incident, accused persons were present near or at the spot and were continuously in touch with each other.
46. This court also does not agree with the argument of Ld. Defence Counsel that the essential ingredient of Section 395 IPC are missing in the case in hand since only four accused have faced trial and no fifth accused has ever been brought by the prosecution before the court. As per the case of the prosecution as deposed by PW-1, four persons were present at the spot at the time his bag was robbed. Out of those four persons, two had come over the Footover Bridge, two were standing on motorcycles on the road with whom the earlier two ran away and the role of fifth accused Jitender @ Jitu surfaced during the investigation that he used to provide information of the businessman who collect payment from the area of Chandni Chowk to other four accused persons. The prosecution has duly proved the involvement of five accused in the crime. It is settled law that in a case of decoity if one or some of the accused are proclaimed offender or have been acquitted the benefit would not go to the other accused persons. The prosecution in order to prove its case for the offence of decoity is required only to prove that five or more persons were involved Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.16 17:13:15 +0530 State Vs. Bharat Kumar Goswami --Page 26 of 28--
in the robbery. In the case in hand, there is overwhelming evidence to record that five accused persons went at the spot out of whom accused Bharat Kumar Goswami and Kanhaie Jha robbed the bag of PW-1, accused Azad @ Gaurav and Sanjeet (P.O.) assisted the first two accused in committing robbery and similarly the fifth accused Jitender @ Jitu was also present at the spot and assisted other four accused persons in committing robbery. Non-arrest of accused Sanjit cannot benefit the other four accused facing trial before the court. In view of the aforesaid discussion, the prosecution has duly proved its case against the four accused facing trial before the court U/s 395 IPC.
47. Accused Bharat Kumar Goswami is also charged for the offence U/s 397 IPC on the allegations that he at the time of robbery shown pistol to PW-1. During examination in chief, PW-1 correctly identified accused Bharat Kumar Goswami who shown him the pistol. During cross examination of this PW conducted by Ld. APP, he said that accused Kanhaie Jha was wearing helmet at the time of incident which was without glass. During cross examination of PW-1 conducted by counsel of accused Bharat Kumar Goswami, he said that the person who aimed gun on him was wearing a helmet. The statement of PW-1 that at the time of incident, accused Kanhaie Jha was wearing the helmet and he shown him the pistol entitles the accused Bharat Kumar Goswami for benefit of doubt for the offence U/s 397 IPC.
48. In view of aforesaid discussion, the material on record is sufficient to record conviction of all 4 accused persons namely Bharat Kumar Goswami, Kanhaie Jha, Azad @ Gaurav and Jitender @ Jeetu for Digitally signed by CHARU CHARU AGGARWAL AGGARWAL Date: 2022.03.16 17:13:21 +0530 State Vs. Bharat Kumar Goswami --Page 27 of 28--
the offence U/s 395 IPC, accordingly, they are convicted under the said provision. However, accused Bharat Kumar Goswami is given benefit of doubt for the offence U/s 397 IPC. Accordingly, accused Bharat Kumar Goswami is acquitted for the offence U/s 397 IPC. Conviction of the accused persons have been recorded for the offence u/s 395 IPC, therefore, there is no need to record their separate conviction for the offence u/s 392 IPC charged against them.
49. In compliance of "Karan Vs. State", Criminal Appeal no. 352/2020, decided by Hon'ble Delhi High Court on 27.11.2020, convicts are directed to file their affidavits of assets and income in the format of Annexure-A of the said judgment within 10 days from today. State is also directed to disclose the expenses incurred on the prosecution and on affidavit with the supporting documents on or before next date. Ahlmad is directed to send the income affidavits of the convicts alongwith the copy of this judgment to the DLSA, Central, Tis Hazari Court, immediately on receipt of the same.
Put up for arguments on the point of sentence on 13.04.2022. Copy of this judgment be given dasti to the convicts.
Digitally signed(Announced in the open court by CHARU
CHARU AGGARWAL
on 16.03.2022) AGGARWAL Date: 2022.03.16
17:13:27 +0530
(CHARU AGGARWAL)
ASJ-02, Central,
Tis Hazari Courts, Delhi.
State Vs. Bharat Kumar Goswami --Page 28 of 28--
State Vs. Bharat Kumar Goswami --Page 29 of 28--