Delhi District Court
State vs . (1) Naseem @ Bhukkar on 17 November, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 99/2013
Unique Case ID No.: 02404R0321872013
State Vs. (1) Naseem @ Bhukkar
S/o Dhoop Khan
R/o Gawarka, Police Station Tavru
Distt.: Mewat, Haryana
(Convicted)
(2) Harish @ Haurn
S/o Sulehman
R/oVill. Sunari Police Station Tavru,
Distt.: Mewat, Haryana
(Convicted)
FIR No. 92/2010
Police Station: Mahendra Park
Under Sections: 394/397/411/34 Indian Penal Code.
25/27/54/59 Arms Act.
Date of Committal to Sessions Court : 18.02.2011
Date on which orders were Reserved : 14.11.2014
Date on which Judgment Pronounced : 14.11.2014
JUDGMENT:
BRIEF FACTS:
(1) As per the case of prosecution on 20.04.2010 at about 4:00 AM, at Sidhu Petrol Pump, G.T.K. Road, Mahendra Park, Delhi, within the State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 1 of 104 jurisdiction of Police Station Mahendra Park, the accused Naseem @ Bhukkar and Harish @ Harun along with their associates namely Ashu @ Mota, Amin and Hafiz (all not arrested), committed robbery at the above said Petrol Pump of Rs.63,500/ (Rupees Sixty Three Thousand Five Hundred) and while committing the robbery the accused Naseem @ Bhukkar also caused injuries on the person of Pardeep (employee of Petrol Pump) by hitting the butt of the katta on his forehead.
BRIEF CASE OF PROSECUTION:
(2) The case of prosecution in brief is that on 20.04.2010 on receipt of DD No. 7A, SI Rajesh Kumar along with Ct. Khetal reached at the spot i.e. Siddhu Petrol Pump, GTK Road where the complainant / injured Pradeep Yadav @ Gama Pahalwan met them whose MLC was prepared at BJRM Hospital and his statement was recorded wherein he alleged that he was working at the Siddhu Petrol Pump for the last 12 to 13 years as a Night Foreman and his nature of job was to look after the Petrol Pump. He further alleged that on 20.04.2010 at about 4:00 AM he was sitting on the 2nd Panel situated in the Petrol Pump when he saw one white coloured Santro Car, came from the Jahangirpuri Metro Station and stopped at the Petrol Machine which car was not having number either on front side or back side and tinted glasses and the occupant of the car asked to fill the tank and the Pump Operator Sanjay Oswal filled up the tank and collected the payment of Rs.250/. Thereafter, two persons alighted from the car State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 2 of 104 and did kanafooshi and thereafter the took the car near the cabin / office after which one tall / Pehelwan type clean save person aged about 3032 years came out of the car and entered the cabin. Pradeep Yadav further stated that on being suspicious he also followed the said person inside the cabin and saw the said person going near the cashier Rakesh Tyagi and threatening him to hand over whatever cash he had, on which he (Pradeep) asked that person to get out of the cabin on which that person first pointed the pistol / katta towards him and thereafter hit the butt of the katta on his head on which he sustained injuries and thereafter the said person pointed the katta / pistol towards cashier Rakesh Tyagi and removed the entire cash amount from the cash counter / galla and also fired by pointing towards him which instated hit the glass of the door. In the meanwhile another assailant who was initially sitting in the car also came inside the cabin while holding an iron rod / saria in his hand. The other staff sitting inside the cabin namely Jitender (Computer Operator) had also got scared and the person who removed the cash handed over the cash to the person who later entered the cabin and thereafter both the assailants came out of the cabin and fled in the car driven by one of their associates. Thereafter, Sanjay Oswal the employee of Petrol Pump who was outside, entered the cabin and made a 100 number call and thereafter within five minutes the police reached the spot and took the injured Pradeep Yadav to the BJRM Hospital.
State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 3 of 104 (3) On the basis of the statement of complainant / injured Pradeep Yadav, a rukka was prepared and the FIR was registered. During investigations, the accused Naseem @ Bhukkar and Harish Harun were apprehended by the Gurgaon Police in some other case had disclosed their involvement in the present case on which information was received in Police Station Mahendra Park and thereafter both the accused were formally arrested in this case. After completing the investigations the charge sheet was filed before the court qua the accused Naseem @ Bhukkar and Harish @ Harun.
CHARGE:
(4) Charge under Section 392/394/34 Indian Penal Code was settled against both the accused namely Naseem @ Bhukkar and Harish @ Harun. Further, charge under Section 397 Indian Penal Code was also settled against the accused Naseem @ Bhukkar. Both the accused had pleaded not guilty and claimed trial.
(5) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
List of Prosecution Witnesses:
Sl. No. Witness No. Name of Witness Details of Witness
PW1 PW1 Pradeep Kumar Public witness / Injured
PW2 PW2 HC Babu Khan Police witness - Duty Officer
State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 4 of 104
Sl. No. Witness No. Name of Witness Details of Witness
PW3 PW3 HC Ashok Kumar Police witness took exhibits to FSL
PW4 PW4 Ct. Kanwar Pal Police witness took exhibits to FSL
PW5 PW5 Ct. Krishan Kumar Police witness - proved the arrest of
accused Harish @ Harun.
PW6 PW6 Ct. Parvinder Police witness - posted in crime team
as photographer
PW7 PW7 Ct. Praveen Police witness - proved the arrest of
accused Naseem
PW8 PW8 HC Vijay Police witness - MHC (M)
PW9 PW9 Retd SI Karan Singh Police witness - Duty Officer (FIR No.
318/10)
PW10 PW10 Rakesh Tyagi Public Witness
PW11 PW11 Ajay Public Witness
PW12 PW12 Jitender Public Witness
PW13 PW13 Sanjay Oswal Public Witness
PW14 PW14 Ct. Khetal Narwal Police witness who along with
Investigating Officer first reached the
spot.
PW15 PW15 Ct. Baljeet Police witness who has proved the
formal arrest of accused Naseem
PW16 PW16 ASI Devender Police witness who has proved the
disclosure statement of accused
Naseem in FIR No. 318/10 Police
Station Gurgaon Sadar.
PW17 PW17 ASI Mohan Singh Police witness who has proved the
disclosure statement of accused
Naseem in FIR No. 318/10 Police
Station Gurgaon Sadar.
PW18 PW18 SI Manoj Police witness who had obtained
process u/s 82/83 Cr.PC against the
accused.
PW19 PW19 SI Rajesh Kumar Police witness who had reached the
State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 5 of 104
Sl. No. Witness No. Name of Witness Details of Witness
spot first and collected the exhibits.
PW20 PW20 SI Ratan Kumar Police witness who had formally
arrested the accused Harish and got his
TIP conducted.
PW21 PW21 SI Madan Mohan Police witness - Investigating Officer.
PW22 PW22 Dr. Gopal Krishna Official witness from BJRM Hospital
PW23 PW23 Sh. N B Bardhan Official witness from FSL.
List of documents exhibited:
Sr. No. Exhibit No. Details of Documents Prove by
1 PW 1/A Statement of Pradeep Kumar Pradeep kumar
2 PW 2/A DD No. 7A HC Babu Khan
3 PW 2/B FIR Do
4 PW 2/C DD No. 11A Do
5 PW 2/D Endorsement on Rukka Do
6 PW 3/1 Affidavit of witness HC Ashok HC Ashok Kumar
Kumar
7 PW 3/A RC 57/21/13 Do
8 PW 3/B FSL Receipt Do
9 PW 4/1 Affidavit of witness Ct. Kanwar Pal Ct. Kanwar Pal
10 PW 5/1 Affidavit of witness Ct. Krishan Ct. Krishan Kumar
Kumar
11 PW 5/A Arrest memo of accused Haroon Do
12 PW 5/B Personal Search Memo of the accused Do
Harun
13 PW 5/C Disclosure Statement of the accused Do
Haroon
14 PW 6/1 Affidavit of witness Ct. Parvinder Ct. Parvinder
15 PW 6/A1 to Photographs Do
10
State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 6 of 104
16 PW 6/B Negatives of the above photographs Do
17 PW 7/1 Affidavit of witness Ct. Praveen Ct Praveen
18 PW 7/A Arrest memo of accused Naseem Do
19 PW 7/B Personal search memo of accused Do
Naseem
20 PW 7/C Disclosure Statement of accused Do
Naseem
21 PW 8/1 Affidavit of witness HC Vijay HC Vijay
22 PW 8/A Copy of Reg No. 19 Sr. No. 152/10 Do
23 PW 8/B Copy of Reg No. 19 Sr. No. 309/10 Do
24 PW 9/1 Affidavit of witness SI Karan Singh Retd SI Karan Singh
25 PW 9/A Copy of FIR No. 318/10 do
26 PW 10/A Application For TIP of accused Rakesh Tyagi
Naseem
27 PW 10/B TIP Proceeding of accused Do
28 PW 10/C Application for TIP of accused Do
Haroon
29 PW 10/D TIP Proceeding of accused of Haroon Do
30 PW 10/E Application for copy of TIP Do
31 PW11/A Refusal of TIP Proceeding of accused Ajay Yadav
Harun
32 PW 14/A Seizure memo of Empty Cartridge Ct. Khetal Narwal
33 PW 15/A Seizure memo of Rs 5000/ Ct. Baljeet
34 PW 16/A Disclosure Statement of accused ASI Devender
Naseem
35 PW 16/B FIR No. 318/10of Police Station Sadar Do
36 PW 19/A Endorsement on Statement SI Rajesh kumar
37 PW 20/A Application for permission for SI Ratan Kumar
interrogation
38 PW 21/A Site plan SI Madan Kumar
39 PW 21/B DD No. 21/B Do
State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 7 of 104
40 PW 21/C Application for TIP of Naseem Do
41 PW 21/D Proceeding of TIP of accused Naseem Do
42 PW 21/E Pointing out memo Do
43 PW 21/F Supplementary Disclosure Statement Do
of accused Naseem.
44 PW 21/G Certificate Do
45 PW 21/H Seizure memo of Certificate Do
46 PW 22/A MLC of Pradeep Dr. Gopal Krishna
47 PW 23/A Ballistics Report Sh. N B Bardhna
EVIDENCE:
(6) In order to discharge the onus upon it, the prosecution has
examined as many as Twenty Three witnesses, as under:
Public Witnesses:
(7) PW1 Pardeep Yadav has deposed that he resides at B268, Jahangir Puri, Delhi and is working at Siddu Service Station, 5/5, GT Karnal Road, Mahendra Park, Azad Pur, Delhi, as Night Foreman for the last 14 years / 17 years and also plying his private cab. He further deposed that on 20.04.2010, at about 4.00 AM, while being present at the above said petrol pump and while was sitting on 2nd Pedestal, he saw that one Santro Car of white colour, without number plate on either side, entered the petrol pump and stopped in front of the petrol filling machine which was being attended to by Sanjay Oswal. He has further deposed that the driver of the said car asked Sanjay Oswal to full the petrol tank. Petrol State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 8 of 104 worth Rs.250/ was filled in the car and the Driver handed over Rs.500/ currency note to Sanjay Oswal and he refunded Rs.250/ to the driver. He further deposed that three boys were sitting in that car at that time and thereafter, two boys alighted from the said car and started talking with each other at a low pitch of their voice (Kaanafusi) making an indication towards the office of the petrol pump. He has further deposed that thereafter, they again boarded the said car and drove the car towards the office and parked the same in front of the office of the petrol pump. He has further deposed that Sanjay Oswal came to him and he also told him that the said boys were talking to each other at a low pitch voice (Kaanafusi) making indication towards the office. He further deposed that after parking the car in front of the gate of the office, he saw that one boy wearing red colour T Shirt and black pants, alight from the said car and enter their office which boy the witness has identified as accused Naseem.
He has further deposed that after entering the office the said boy moved towards the back side of Cashier and after seeing this, he also entered the office while asking the boy as to why he is going in the office. On this the said boy took a turn and instead of going towards the back side of the Cashier, came back and went outside the main gate office murmuring something (Badbadata Huwa) and reached near Santro car. According to the witness at that time Rakesh Tyagi, who was the Cashier, who was in a semi asleep condition, put both his hands below his chin on the table of his State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 9 of 104 office and told Rakesh Tyagi that he was sleeping. On this one unknown person reached behind him and in the meanwhile, the said boy again entered their office, having a country made pistol in his one hand and a handkerchief in his other hand and pointed out the country made pistol towards the Cashier Rakesh Tyagi which Cashier due to fear and nervousness fell down on his back alongwith the chair on which he was sitting and thereafter he stood up and raised his hands, whereas the said boy whose name he later on he came to know as Nadeem @ Bhukar, asked the Cashier to hand over the cash to him. He further deposed that the Cashier pointed out towards the cash box (Galla), saying that all the cash was inside that cash box and when the accused Naseem was in the process of removing the drawer/cash box, he stopped him, saying, "Yahaan Koi Cash Vagarah Nahin Hai, Aisa Mat Karo". He has further deposed that thereafter, the accused pointed out the country made pistol towards him and gave him a blow on his head with the butt of the katta and fired towards him, but the bullet hit the gate of the door, which was of glass, on its back side and it made a hole in the said glass. He has further deposed that thereafter the accused put his country made pistol on the counter, removed the drawer/cash box and put the same on the table and from the said cash box, he removed all the cash when in the meanwhile, one other associate of the accused also entered the office, having an iron rod in one hand which was in the shape of Chhaini. The accused Naseem handed State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 10 of 104 over the cash removed by him from the cash box to his said associate and again picked his Katta and they all went away in the said Santro Car. He has further deposed that the complete incident was also recorded in the CC TV Camera, installed at their petrol pump. He has further deposed that at that time, Computer Operator Jitender was also there in the office and after firing on him, the accused again loaded his country made pistol with a live cartridge. He has further deposed that he does not remember the colours of the clothes of the other associate of the accused, who was having iron rod since at that time, he was bleeding from his head, due to the injury caused by the accused. He has further deposed that Rakesh Tyagi told him that exact amount he will tell later on after calculating, but there was approximate Rs.65,000/ inside the cash box but later on, after making calculation, Rakesh Tyagi told him that the exact cash amount in the cash box was Rs.63,500/. He further deposed that his statement/complaint was recorded by the police official, namely Rajesh Kumar and the same is Ex. PW1/A, but he could not sign the same as his both the hands were blood stained at that time, due to the bleeding injury on his head. He has further deposed that first he sent him to the hospital with one police official for medical examination and told him that he will obtain his signature later on. He has further deposed that his younger brother Ajay Yadav was also present in the office at the time of the incident as he was sleeping in the office and he woke up when Rakesh State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 11 of 104 Tyagi had fallen down with the chair on the ground and SI Madan Mohan made inquiries from him in the office and he prepared site plan at the office. He has further deposed that the empty cartridge case and the projectile of the bullet were also recovered in the office and the same were lifted by SI Rajesh Kumar and were kept in a polythene and a pulanda was prepared and he put the brass seal on the pulanda. He has further deposed that he had seen the brass seal, on which, in so far as he remember, letters R and S were found engraved in opposite direction. He further deposed that initially, when he was sitting on the 2nd Pedestal, he could observe only three boys inside the car, as the glasses of the windows of the car were tinted, but when two of them alighted from the car at the time of the commission of offence, then he observed that one boy, whose mustaches were downwards was sitting on the driver seat, one on the conductor seat and one was sitting on the rear seat and two were involved in the commission of offence, as such they were total five. (8) He has further deposed that after about two months of the incident, but he does not remember the exact date, but it may be perhaps 25.09.2010, he went to the Police Station Mahendra Park to make inquiry about the case and there at the gate of Police Station, he saw SI Madan Mohan alongwith two more police officials and accused Naseem @ Bhukhar was with them which he identified accused Naseem @ Bhukar there in the presence of police officials as the person who on 20.04.2010, State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 12 of 104 removed the cash from the cash box and fired a bullet on him. In a reply to a leading question, put by the Ld. Addl. PP after taking permission from the court the witness has admitted that the correct name of the accused was Naseem @ Bhukar which was told to him by SI Madan Mohan on 27.9.2010 when he identified the accused at the gate of Police Station Mahendra Park.
(9) In his crossexamination, he has deposed that his statement was recorded by the police officials at the spot and also in the police station. He has stated that his first statement was recorded at the spot on 20.04.2010 and his second statement was recorded by the Investigating Officer in the Police Station which might on 05.07.2010. He has further deposed that he had seen the accused Naseem @ Bhukar in the Police Station on that day while he himself went to the Police Station for making inquiries about the case. According to him he had seen the accused Naseem @ Bhukar in the Police Station on 27.09.2010 and has deposed that he had stated to the police that at that time Rakesh Tyagi who was the cashier, was in a semi sleeping condition was that put his hands below his chin on the table of his office and he told Rakesh Tyagi that he was sleeping and one unknown person reached behind him. However, when confronted with his statement Ex.PW1/A this fact was not found so recorded. He has further deposed that he had stated to the police in his statement that the said boy again entered the office having a country made State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 13 of 104 pistol in his one hand and a handkerchief in his other hand but when confronted with his statement Ex.PW1/A this fact was not found so recorded. According to the witness, he had also stated to the police in his statement that the cashier had fallen down towards his back side along with the chair on which he was sitting. However, when confronted with his statement Ex.PW1/A this fact was not found so recorded. Witness has deposed that he had stated to the police in his statement that he stopped him saying "yaha koi cash vegera nahi hai, aisa mat karo" but when confronted with his statement Ex.PW1/A this fact was not found so recorded. He has deposed that he had been hit on his head with the butt of the country made pistol and has voluntarily explained that the firing which took place was on account of the hitting of the butt on his head. He has further deposed that he was working as a foreman at the petrol pump and his duty hours are from 10 PM to 6AM regularly. He has also deposed that at the time of incident 10 to 12 employees were present there and the statements of Rakesh Tyagi, Jitender, Ajay, Sanjay Oswal were recorded by the police. He has stated that at the time of incident one or two vehicles were present at the petrol pump but the owners of those vehicles did not come forward to help them. He further deposed that when the Santro car arrived he was sitting on the pedestal No. 2 and has admitted that from the said pedestal No. 2 he cannot see the back side of the vehicle. He has stated that the vehicle was having black tinted glasses and he could not see State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 14 of 104 the occupants of the vehicle. He has also admitted that on seeing the Santro car without any number plate neither he complained to the police nor to any of his colleague about the same. He has stated that at the time of the incident it was dark and he could not identify the assailants and states that the sketch of the accused persons was not got prepared by the police.
(10) He has denied the suggestion that accused Naseem @ Bhukar was not present at the spot or that he did not enter the office of the petrol pump or that he did not attack him with the country made pistol or that accused Naseem @ Bhukar never robbed the cash amount from the gala or that he identified accused Naseem @ Bhukar in the court as he has seen him in the Police Station or that he is implicating the accused at the instance of the Investigating Officer.
(11) PW10 Rakesh Tyagi has deposed that he is residing at B337, Jahangirpuri, Delhi along with family and is an employee at Sidhu Petrol Pump at 5/5 Mahendra Park, Azadpur as Cashier. According to the witness on 20.04.2010 he was on cash duty inside the office at the cash room and at about 44:15 AM while he was sitting at the seat one pehlwan/healthy person entered the room aged around 3032 years who came from the front side, wearing a T shirt and a pant and suddenly came and stood behind him. Witness has further deposed that from the front side their foreman Pardeep Yadav also entered and on seeing this person standing State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 15 of 104 behind his seat questioned him as to how he was standing behind him and asked him to leave the room and on this the said pehlwan type person came and stood in front of him and there was a verbal altercation between Pardeep Yadav and the said boy in which the said person took out a katta/pistol and hit him on the head with the butt of the same, on which Pardeep Yadav started bleeding from his head. According to the witness thereafter the said person pointed the pistol/katta on him threatening him with a pistol and asking him to handover all his belongings ("pistol mere pe than di" and said "jo kuch bhi hai nikal do") on which he got scared and immediately raised his hands. Witness has further deposed that in the meanwhile one more person entered the room with a rod type object in his hand and the first pehlwan type person removed the cash from the counter which was already open and which he handed over the same to the second person and thereafter both of them rushed out of the room where a Santro car was standing. According to the witness he could see one person sitting on the driver seat and glasses of the said car were dark and therefore he could not see who else would inside it and the said persons immediately sat in the Santro and went away and these persons had robbed Rs Sixty Three thousand five hundred from the counter. Witness has further deposed that he was also called to the Jail for purposes of identification of the accused where he identified the accused Naseem @ Bhukar but could not identify the accused Harish @ Harron. State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 16 of 104 (12) The application filed by the Investigating Officer requesting for conduct for TIP of accused Naseem is Ex.PW10/Al, the TIP proceedings conducted by Ld. MM are collectively Ex.PW10/B (running into three pages) wherein the accused Naseem @ Bhukar had refused to participate in the proceedings. Further, the application filed by the Investigating Officer requesting for conduct of TIP of Harish is Ex.PW10/C, the TIP proceedings conducted by Ld. MM in respect of accused Harish @ Harun are collectively Ex.PW10/D (running into three pages) bearing the signatures of the witness at point A which he duly identifies, in which the witness has failed to identify the accused Harish @ Haroon. The application filed by the Investigating Officer for obtaining the copy of the proceedings is Ex.PW10/E. He has identified the accused Naseem @ Bhukar by pointing out towards him as well as by name but not the accused Harish @ Haroon.
(13) The accused Harish @ Harron was specifically put to the witness by the Addl. PP for the State but the witness has stated that he is not sure and is unable to tell for certainty if Harish @ Harron is the same person who had later on entered the room and to whom Naseem had handed over the cash after removing the same from his counter. (14) In his cross examination by Ld. Defence counsel, the witness has deposed that his duty hours were from 10PM to 6AM and at the time of the incident about 1012 employees were present. According to the State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 17 of 104 witness only one cabin is situated at the petrol pump and that cabin is situated at a distance of around 20 feet from the filling machine of petrol. Witness has further deposed that at the time of incident three persons including himself were present inside the cabin and one computer operator Jitender Kumar and Ajay Yadav were present there along with him and Ajay was not on duty and was sleeping whereas Jitender Kumar and himself were awake but were not doing anything. According to the witness from his cabin the filling machine is visible and at the time of the incident there was no vehicle. He has stated that and at that time there were about 78 boys deputed at the filling machine. Witness has further deposed that Pardeep Yadav almost followed the first boy who had entered the cabin and has voluntarily added that while the said boy came behind him within seconds Pardeep Yadav had entered and asked his purpose. Witness has further deposed that he could not notice the other employees and has voluntarily added that they were all here and there. According to the witness they do not have a system of an alarm in the cabin and the entire episode happened within seconds and there was no time to react. Witness has denied the suggestion that at the time of incident he was sleeping or that he did not noticed the description of the boys who had entered and taken away the cash. Witness has denied the suggestion that only to work out a blind case and save his job the blame had been diverted upon the accused persons. Witness has denied the suggestion that the State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 18 of 104 accused Naseem @ Bhukar was shown to him previously in person and also by way of photograph on account of which he identified him in the jail. Witness has further deposed that there is a CCTV camera installed in his cabin and has voluntarily added that later when the footage was seen by the police it was not found to be clear and was blurred due to which reason the details of the accused could not be seen. According to the witness he was not aware if the police had taken the cash register to tally the entries and the robbed cash amount. Witness has denied the suggestion that CCTV footage did not confirm the presence of the accused Naseem and Harish due to which reason the same was not taken by the police. He has denied that he was deposing falsely at the instance of the police officials only to work out the blind case.
(15) PW11 Ajay Yadav has deposed that he is residing at B268, Jahangirpuri, Delhi along with family and working as a computer operator at Sidhu Service Station situated at 5/5 GT Karnal road, Near Azadpur. According to him on 20.04.2010 he was on duty at the service station and at about 4:00 AM he had dozed off when he heard the noise of fire and woke up and saw his brother Pardeep Yadav bleeding from the head and a tall healthy boy was standing in front of him and was putting bullet into the katta ("katte ke andar gole dal raha tha" ) and then pointed out the katta to Rakesh Tyagi and asked him to hand over the cash. According to the witness, Rakesh Tyagi got scared and immediately raised his hands and State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 19 of 104 stood up but got unbalanced as his chair slipped and fell down. He has deposed that Rakesh Tyagi was terrified and he pointed out towards the galla/counter which was open and told him "jo kuch hai is main hi hai"
and on this the said boy immediately removed the entire cash from galla/counter and in the meanwhile his other associate who was outside also entered the room and the first boy who was healthy boy handed over the cash to his other associate and thereafter both these persons ran away on a Santro which was standing outside the gate. He has deposed that these boys had taken away a total amount of Rs 63 thousand five hundred from the counter which he came to know in the morning after the loss was assessed. He has correctly identified accused Naseem as a sturdy boy who had come inside the cabin and was carrying a katta with which he had threatened Rakesh Tyagi and his brother Pardeep Yadav and accused Harish @ Harun by pointing out towards him as the second boy to whom the cash was handed over.
(16) In a reply to a leading question put by Ld. Addl. PP for State after taking permission from the court, witness admitted that on 22.06.2013 he along with Jitender and Sanjay Oswal on receipt of notice from the Investigating Officer had gone to Rohini Jail for identification of the accused before the hon'ble judge but on the said day after it was informed that he was present along with other witnesses no TIP proceedings conducted because they were told that the accused had State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 20 of 104 refused for TIP proceedings.
(17) In his crossexamination he has deposed that he was on duty from 10PM to 6AM next day and at the time of the incident there were three boys inside the cabin and outside there were 67 boys present.
According to the witness the distance between the cabin where he was present at the filling machine is about 2025 feet and his statement was recorded at the spot along with Pardeep Yadav, Rakesh Tyagi, Sanjay Oswal, Ajay and Jitender. Witness has further deposed that at the time of incident, he was dozing off and taking rest by putting his head on the table in front of him and the table of Rakesh Tyagi is hardly 57 feet away from his table. According to the witness he had only seen the Santro car outside but did not notice the number of persons in it. Witness has denied the suggestion that at the time of the incident he was in deep sleep and did not see anything or that he only came to know about the incident after the assailants had left and in order to save his job he in connivance with the police had shifted the blame on the accused to falsely implicate them in the present case. According to the witness he had given the description of the assailants to the police and has voluntarily added that he had told them that one of them was wearing a red colored T shirt and black pant and was a healthy person of around 6 feet and the other person was around 5 feet 4 5 inch with light mustaches Witness has denied the suggestion that he had identified the accused in the court as they had been shown to him by the State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 21 of 104 investigating officer during their remand in the court and also during the court appearances on the previous dates. Witness has denied the suggestion that he was deliberately implicating the accused in connivance with the police to work out the case in order to save his job as he was sleeping during duty time.
(18) PW12 Jitender stated that he is residing at 25 feet Road, Gali No. 13, Burari, Delhi along with his family and he is working at Sidhu Petrol pump, GTK Karnal road, Jahangirpuri as Computer Operator. According to the witness on 20.04.2010 he was on duty in the office and at about 4 AM a well built person having a height of approximate 6 feet entered in their office having an age of around 3032 years and came towards the cash box and he stood behind the cashier Rakesh Tyagi. Witness has further deposed that in the meantime their foreman Pardeep Yadav @ Gama Pehlwan also came inside the Cashier Room and he asked that person to leave the office and thereafter that stranger/person who had entered in the office got perplexed and he took out a fire arm weapon (katta) and he aimed towards Pardeep Yadav, foreman of the office, but suddenly there was a firing from the katta which that person was holding which hit against the office and also hit Pardeep Yadav @ Gama Pehlwan. According to the witness on seeing the incident he went behind the almirah being perplexed due to the incident and at that time person took cash of Rs 6065 thousand which was in the cash box from Rakesh Tyagi, State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 22 of 104 cashier. According to the witness in the scuffle Rakesh Tyagi fell on the ground. He has identified the accused Naseem @ Bhukar who had entered the office and looted the cash of Rs 65 thousand from Rakesh Tyagi and fired due to which Pardeep Yadav received injuries on his head which accused has caused by the butt of the katta. Witness has further deposed that due to fear Rakesh Tyagi handed over the entire cash amount which was in his possession at that time which was 6065 thousand to that healthy assailant carrying the katta and in the meanwhile another assailant had entered the room and this healthy person carrying the katta whose name he later on came to know as Naseem in turn handed over the entire cash to that person. According to the witness thereafter both of them rushed outside and went away on a white colored Santro car which was already parked outside the cabin. He has stated that at that time accused was associated with 23 other persons and has stated that he can identify the person who came first with the katta whose name he later on came to know was Naseem but not the other person who had followed him thereafter with an iron rod like object in his hand or others who were outside. Witness has further deposed that on 22.06.2013 he along with Ajay Yadav and Sanjay Oswal on receipt of notice from the investigating officer had gone to Rohini Jail for identification of the accused before the hon'ble judge but on the said day after he was informed that he was present along with other witnesses no TIP proceedings conducted because State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 23 of 104 they were told that accused had refused for TIP proceedings. (19) In his crossexamination he has deposed that he was on duty from 10.00 p.m. to 6.00 a.m. next day and at the time of incident there were three boys including him, inside the cabin and outside there were 67 boys present. According to the witness the distance between cabin where he was present and the filling machine is about 1819 feet and at the time of incident, he was dozing off and taking rest by putting his head on the table in front of him. Witness has further deposed that the table of Rakesh Tyagi is hardly one feet away from his table and he had only seen the Santro car outside and noticed that it had no number. According to the witness the police came to the spot after about one hour and he remained in hiding behind the almirah for about 15 minutes and the entire episode must have lasted about 15 minutes. He has denied the suggestion that at the time of incident he was in deep sleep and did not see or notice anything or that he only came to know about the incident of robbery after the assailants had left and in order to save his job he in connivance with the police had shifted the blame on the accused to falsely implicate them in the present case. According to the witness he had given the description of only one of the assailants to the police that is the one who entered first and voluntarily added that he had told them that one of them was wearing a red color T shirt and black pant and was a Jat type person whereas the other was thin built.
State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 24 of 104 (20) He has denied the suggestion that he has identified the accused in the court as they have been shown to him by the investigating officer during their remand in the court and also during the court appearances on the previous dates or that he is deliberately implicating the accused in connivance with the police to work out the case in order to save his job as he was sleeping during duty time or that he was deposing falsely. (21) PW13 Sanjay Oswal deposed that he is residing at A500, Jahangir Puri, Delhi along with his family and is working as pump operator at Sidhu Service Station situated at Adarsh Nagar. According to the witness on 20.04.2010 he was on duty and on that day around 4 AM from the side of Jahangirpuri Metro Station one Santro Car came. According to the witness the driver of the said car took the side on the side of the filling machine and the window pane of the said car was dark/tainted with black film and he noticed three persons in the car. Witness has further deposed that the driver of the said car asked him to fill up the full tank and thereafter on the request of driver of the said car to fill up the full tank, he filled up the full tank. According to the witness he noticed that at that time it was the healthy boy i.e. accused Naseem who was at the driver seat with another boy sitting on the seat next to the driver seat and one boy sitting on the back seat. Witness has also identified the accused Harish @ Harun as the person initially sitting on the back seat but after the Naseem went inside the cabin followed by the second boy sitting State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 25 of 104 on the adjoining seat got up from the back seat and occupied the driver seat and from outside he saw from the glass door that the first boy Naseem was pointing a pistol / katta on Rakesh Tyagi whereas the second boy who followed him was carrying a rod. According to the witness he also saw Pardeep Yadav, the supervisor entering the cabin after Naseem had entered and he asked the first boy to leave the cabin on which Pardeep Yadav was hit with the butt of the katta on his head and he started bleeding after which Naseem removed the cash from the counter and handed over the same to the other boy and they both came out from the cabin and escaped in the Santro car in which the third accused i.e. Harish @ Harun was sitting and he drove the said car. According to the witness later on he came to know that the stolen cash was around Rs 63 thousand. (22) In crossexamination he deposed that at the time of incident he noticed that there was one car as standing at the filling machine of Diesel and Santro car was the only other car in which the assailants had come and there was no other vehicle. According to the witness they were 56 employees on duty at the filling machine and Naseem was the person who had asked them to full up the fuel tank. Witness has further deposed that it hardly took him about two minutes to fill up the petrol. He has replied that the land line phone is installed inside the canteen. According to the witness one boy was present in the canteen during the night time and he had made the call on 100 number when he saw what was happening inside State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 26 of 104 the cabin. Witness has further deposed that he had made this call from the land line phone installed inside the canteen and the police had come within five minutes of the call and the police had come hardly 57 minutes of the leaving of the assailants.
(23) Witness has admitted that the Road on which the filling station is situated is a motor able Road with a heavy traffic round the clock. Witness has further deposed that at that time there was very little traffic movement on the road and the whole incident of robbery inside the cabin hardly took about 23 minutes and the other boys who were present at the filling machine got scared and ran away. According to the witness his statement was recorded on the same day after he had called at the Police Station and they remained in the Police Station till about 8 AM and the entire staff had gone. According to the witness even after this incident he had gone to the Police Station and did not run away when the firing took place. He denied the suggestion that he only came to know about the incident of robbery after the assailants had left and in order to save his job he in connivance with the police had shifted the blame on the accused to falsely implicate them in the present case. According to the witness he had given the description of only one of the assailants to the police that is the one who entered first and has voluntarily explained that he had told them that one of them was wearing a red colored T shirt and black pant and was having a height of about 6 feet and was sturdy and the second boy was State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 27 of 104 having a height of abut 5.55.6 feet and thin statured and the third boy who came on the driver seat was tall and thin. He denied the suggestion that he has identified the accused in the court on the day of his deposition in the court as they have been shown to him by the Investigating officer during their remand in the court and also during the court appearances on the previous dates or that he had concocted the story of the accused having come in a white color Santro car to get the petrol filled from the filling station only to connect them with the offence or that he is deliberately implicating the accused in connivance with the police to work out the case in order to save his job as he was sleeping during duty time or that he was deposing falsely.
Forensic / Medical Evidence:
(24) PW22 Dr. Gopal Krishna, CMO BJRM Hospital, Delhi has deposed that on 20.4.2010 he was working as CMO and Dr. Kundan Kumar was working as Junior Resident (Casualty) at the aforesaid hospital. He has deposed that on that day Dr. Kundan Kumar examined the patient Pradeep Yadav S/o Shri Ram Yadav, Male with alleged history of physical assault vide MLC Ex. PW22/A under his supervision, bearing the signature of Dr. Kundan Kumar at point A. According to him, on 22.11.2010 he had given his opinion regarding nature of injury as Simple and his endorsement to this effect is at point B & C and bearing State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 28 of 104 his signature at point D. This witness has not been cross examined on behalf of the accused despite being granted an opportunity.
(25) PW23 N. B. Bardhan, Principal Scientific Officer (Ballistic) CFSL has deposed that one sealed parcel was received in the office on 16.08.2013 duly sealed with the seal of RK from Police Station Mahendra Park for examination. The seals in the parcel were intact and tallied with the specimen seal received in this case after which he opened the parcel and found to contain .315 inch/8 mm fired cartridge case and one .315 inch/8 mm fired bullet which were marked by him as C/1 and BC/1 respectively. He has deposed that on examination, the result is as under:
1) On the basis of basis of Physical and Microscopic examination, it is opined that the fired cartridge case (marked C/1) and the fired bullet (marked BC/1) contained in the above mentioned parcel are of .315"/8 mm caliber.
2) The .315"/8mm fired cartridge case (marked C/1) and the .
315"/8mm fired bullet (BC/1) contained in the above mentioned parcel are "Ammunition" as defined in the Arms Act 1959.
(26) His detailed report in this regard is Ex.PW23/A bearing his signature at point A. (27) In crossexamination, he denied the suggestions that he had given the aforesaid report to the police only at the behest of Investigating State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 29 of 104 Officer or that he did not apply his mind while examining the aforesaid exhibits or that he did not adopt the standard practice and procedure while examining the exhibits and giving the report.
Police / Official Witnesses:
(28) PW2 HC Babu Khan has deposed that on 20.4.2010 he was posted as Head Constable in the Police Station Mahendra Park and was working as Duty Officer from 12.00 mid night to 8.00 AM. He further deposed that on that day at about 4.20 AM he received a call from the wireless operator regarding a robbery at Sidhu Petrol Pump, Hahangir Puri and on the basis of this call he recorded DD No. 7A, copy of which is Ex.PW2/A and sent a copy of the same to SI Rajesh Kumar through Ct.
Khaital. He has further deposed that he also informed the SHO about the call and on the same day at about 6.30 AM Ct. Khaital brought a rukka sent by SI Rajesh Kumar and handed over the same to him and on the basis of that rukka he recorded the FIR No. 92/10 U/S 394/397/34 IPC ad 25/27/54/59 Arms Act. He has further deposed that after registration of the case he handed over the copy of FIR which is Ex.PW2/B, bearing his signature at point A and rukka to Ct. Kaital for handing over the same to SI Madan Mohan for further investigation. He further deposed that he recorded DD No. 11A regarding the registration of FIR, copy of which is Ex.PW2/C. He further deposed that he made endorsement on the rukka at State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 30 of 104 point A which is Ex.PW2/D and in his handwriting having his signature at point A. (29) PW3 HC Ashok Kumar has tendered his examination in chief by way of affidavit which is Ex.PW3/1 bearing his signatures at points A and B and he has proved the RC No. 57/21/13 dated 16.08.2013, copy of which is Ex.PW3/A bearing his signatures at point A and FSL receipt, copy of which is Ex.PW3/B (original entry and original FSL receipt seen and returned).
(30) In his affidavit of examination in chief the witness has deposed that on 16.08.2013 he was posted at Police Station Mahendra Park as MHC(M) and on that day on the instructions of investigating officer/SI Rattan Kumar he handed over one sealed pullanda containing one fire cartridge case and one led of fire cartridge and sealed with the seal of RK along with CFSL form vide RC No. 57/21/13 dated 16.08.2013 to Ct. Kanwar Pal No. 2142/NW for depositing the same in ballistic division of CFSL, CGO complex Ladhi road, Delhi. According to the witness Ct. Kanwar Pal No. 2141/NW deposited the above exhibit in CFSL, CGO complex Lodhi road Delhi on the same day i.e. on 16.08.2013 and handed over copies of RC and acknowledgment of FSL to him. Witness has further deposed that so long as the exhibits were remained in his custody, the same were remained intact.
State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 31 of 104 (31) This witness was not cross examined by Ld. Defence counsel, despite opportunity granted.
(32) PW4 Ct. Kanwar Pal has tendered his examination in chief by way of affidavit which is Ex.PW4/1 bearing his signatures at point A and B and he has proved RC No. 57/21/13 dated 16.08.2013, copy of which is Ex.PW3/A bearing his signatures at point B and FSL receipt, copy of which is Ex.PW3/B bearing his signatures at point A. (33) In his affidavit of examination in chief the witness has deposed that on 16.08.2013 he was posted as constable at Police Station Mahendra Park, Delhi and on that day on the instructions of investigating officer SI Rattan Kumar, he took one sealed pullanda containing exhibits 9one fire case of cartridge and one led of cartridge) and sealed with the seal of RK along with CFSL form vide R/C No. 57/21/13 dated 16.08.2013 from MHC(M) Police Station Mahendra Park HC Ashok for depositing the same in Ballistic division of CFSL CGO complex Lodhi Road. According to the witness he deposited the above mentioned exhibits with CFSL form at CFSL, CGO complex Lodhi road Delhi on the same day i.e. dated 16.08.2013. Witness has further deposed that he handed over the acknowledgment and copies of RC to MHC(M) Police Station Mahendra Park and a copy of the same to the investigating officer/SI Rattan Kumar and so long as the exhibits were in his custody, the same remained intact. State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 32 of 104 (34) In his cross examination by Ld. Defence counsel, witness has denied the suggestion that the case property was tampered with while remained in his custody. Witness has denied the suggestion that he was deposing falsely.
(35) PW5 Ct. Krishan Kumar has tendered his examination in chief by way of affidavit which is Ex.PW5/1 bearing his signatures at point A and B and he has proved arrest memo of accused Harun @ Harish which is Ex.PW5/A, personal search of accused which is Ex.PW5/B and disclosure statement of the accused which is Ex.PW5/C. (36) In his affidavit of examination in chief the witness has deposed that on 05.06.2013 he was posted at Police Station Mahendra Park, Delhi and on that day at 12:30 PM he along with investigating officer/SI Rattan Kumar went to the court No. 117 of Ld ACMM Sh. Mahendra Virat in case FIR No. 92/10, U/s 394/397/34 IPC and on that day Haryana police produced accused Harun @ Harish S/o Suleman R/o Village Sunari, Police Station Taudu, District Mewat, Haryana in the court of Sh. Mahendra Virat, ACMM Rohini Court Delhi. According to the witness on that day Investigating Officer, SI Rattan Kumar interrogated the accused Harun in the Court Complex after taking prior permission from the hon'ble court and arrested him in the case who prepared the arrest memo, personal search memo and written disclosure statement of the accused Harun @ Harish and he signed these documents as witness. Witness has State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 33 of 104 further deposed that Investigating Officer/SI Rattan Kumar produced the accused Harun @ Harish muffled face in the hon'ble court of Sh. Mahendra Virat, Ld. MM Rohini, Delhi and on that day he along with investigating officer/SI Rattan Kumar and official of Haryana police went to deposit the accused in Rohini Jail. According to the witness on that day he along with SI Rattan Kumar reached Police Station Mahendra Park after depositing the accused in Rohini Jail and his statement was recorded by SI Rattan Kumar on the same day on 05.06.2013.
(37) In his cross examination by Ld. Defence counsel, witness has denied the suggestion that accused Harun @ Harish did not make any disclosure statement or that same was recorded by the Investigating Officer of his own. Witness has denied the suggestion that he was deposing falsely.
(38) PW6 Ct. Parvinder has tender his examination in chief by way of affidavit which is Ex.PW6/1 bearing his signatures at point A and B and he has proved photographs which are Ex.PW6/A1 to Ex.PW6/A10 and negatives of the same are collectively Ex.PW6/B. (39) In his affidavit the witness has deposed that on 20.04.2010 he was posted as constable (photographer) at crime team of north west district and on that day he came to the scene of crime at Sidhu Petrol Pump Jahangirpuri with crime team and on the directions of the investigating officer, he took photographs of the scene of crime and State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 34 of 104 handed over photographs to the investigating officer. (40) In his cross examination by Ld. Defence counsel, witness has deposed that he went to the spot at about 5:30 AM and remained there for about 45 minutes and at that time staff of petrol pump and police officials were present there and his statement was recorded at the spot itself. Witness has denied the suggestion that he did not visit the spot along with crime team.
(41) PW7 Ct. Praveen has tendered his examination in chief by way of affidavit which is Ex.PW7/1 bearing his signatures at point A and B and he has proved arrest memo of accused Naseem @ Bhukar which is Ex.PW7/A, personal search of accused Naseem @ Bhukar which is Ex.PW7/B and disclosure statement of accused Naseem @ Bhukar which is Ex.PW7/C bearing his signatures at point A. (42) In his affidavit the witness has deposed that on 16.09.2010 he was posted at Police Station Mahendra Park as constable and on that day he along with SI Madan Mohan went to Rohini Court where SI Madan Mohan formally arrested accused Naseem @ Bhukar and recorded his disclosure statement.
(43) In his cross examination by Ld. Defence counsel, witness has denied the suggestion that accused Naseem @ Bhukar did not make any disclosure statement or that the same was recorded by the Investigating Officer of his own. Witness has denied the suggestion that he was State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 35 of 104 deposing falsely.
(44) PW8 HC Vijay has tendered his examination in chief by way of affidavit which is Ex.PW8/1 bearing his signatures at point A and B and he has proved Mud No. 152/10, copy of which is Ex.PW8/A and Mud No. 309/10, copy of which is Ex.PW8/B (original entries seen and returned).
(45) In his affidavit the witness has deposed that on 20.04.2010 he was posted at Police Station Mahendra Park as head constable MHC(M) CP and on that day SI Madan Mohan handed over one sealed pullanda selaed with the seal of RK. According to the witness he deposited the exhibits vide Mud No. 152/10 in register No. 19. Witness has further deposed that on 26.09.2010 SI Madan Mohan handed over one sealed pullanda sealed with the seal of MM and he deposited the exhibits vide Mud No. 309/10 in register No. 19.
(46) In his cross examination by Ld. Defence counsel, witness has denied the suggestion that the entries in register No. 19 have been manipulated at the instance of the investigating officer and senior officers. (47) PW9 Retd. SI Karan Singh has tendered his examination in chief by way of affidavit which is Ex.PW9/1 bearing his signatures at point A and B and has proved original FIR No. 318/10 U/s 392 IPC copy of which is Ex.PW9/A. (Original FIR seen and returned). State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 36 of 104 (48) In his affidavit the witness has deposed that on 07.08.2010 he was duty officer at Police Station Sadar Gurgaon and on that day Ct. Ravi Kumar No. 3886/NW handed over to him one complaint of Sh. Dhanpal, S/o Bhim Singh, endorsed by Inspector Inderjeet Singh, SHO/PS Sadar Gurgaon for registration of the case. According to the witness on the basis of said endorsement, he got the FIR registered through computer operator vide FIR No. 318/10 Under Section 392 IPC and after registration of the FIR, the investigation of the case was entrusted to Inspector Inderjeet Singh, SHO/PS Sadar Gurgaon and copy of FIR and original complaint was handed over to Ct. Ravi Kumar No. 3886/NW.
(49) This witness was not cross examined by Ld. Defence counsel, despite opportunity granted.
(50) PW14 Ct. Khetal Narwal deposed that on 20.4.2010, he was posted at Police Station Mahendra Park and on that day at about 4.20 AM on the receipt of DD No. 7A, he alongwith SI Rajesh Kumar reached at Sidhu Petrol Pump, GTK Road where complainant Pradeep Yadav @ Gama Pehlwan and staff of petrol pump met them. He has further stated that the blood was found oozing from the head of Pradeep Yadav and he took him to BJRM Hospital and his medical examination was got done and his MLC was prepared by the doctor at 6.00 AM and he brought the complainant back to the Petrol Pump. He has further stated that other senior Police Officer also came to the spot and Investigating Officer State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 37 of 104 prepared Tehrir and handed over the same to him which he took to the Police Station and got the case registered. Thereafter, he brought the FIR at the spot and handed over the same to the IO. He further stated that they found empty cartridge on which the word 8mm was found mentioned on the top. He has deposed that Investigating Officer prepared the pulinda of the aforesaid empty cartridge and sealed the same and the sealed parcel was taken into possession vide seizure memo Ex.14/A bearing his signature at point A. (51) In his crossexamination he has deposed that he reached at the spot along with SI Rajesh at about 4.20 am on motorcycle and when they reached at the spot they found 10/12 persons were gathered there. He has further stated that he took the injured after about 510 minutes and brought him to the hospital on motorcycle and they came back at the spot from the hospital at about 6.15 am and he took the rukka at about 7.00 AM on foot. He has clarified that the Police Station is hardly situated at a distance of about 200 meters from the petrol pump. He has further deposed that he does not remember whether the pullanda was prepared prior to taking rukka to the spot or after the registration of the case. He also does not remember the impression of the seal. He has denied the suggestion that he did not visit the spot or that he did not take the rukka to the Police Station or that nothing was recovered from the spot. State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 38 of 104 (52) PW15 Ct. Baljeet deposed that on 16.9.2010, he was posted at Police Station Mahendra Park and on that day he alongwith SI Madan Mohan came to the court where the accused Naseem was produced and after taking permission from Ld. MM, SI Madan Mohan interrogated him in this case and accused was formally arrested vide memo Ex. PW7/A, bearing his signature at point B. Personal search of accused was also conducted vide memo Ex.PW7/B. His disclosure statement was recorded vide Ex.PW7/C, bearing his signature at point B. He has further deposed that on 26.9.2010, he alongwith Investigating Officer SI Madan Mohan and accused Naseem had gone to the house of accused Naseem at village Gawarka Police Station Tabru Distt. Mehwat and the house of accused was formally searched but nothing incriminating was found. He further stated that the wife of accused Samina had given Rs. 5000/ to accused Naseem as the share of the looted money which money was given to her by accused Naseem. He has further deposed that thereafter, accused Naseem handed over the said amount to the IO, who converted the aforesaid amount into parcel and sealed the same with the seal of MM and the said parcel was taken into possession vide seizure memo Ex. PW15/A, bearing his signature at point A. He further deposed that thereafter, the accused Naseem took them to the house of accused Asru @ Mota in the same village but he was not available at that time. He further deposed that thereafter, he took them to the house of accused Hafiz but he could not be State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 39 of 104 found and thereafter, they reached at village Sunari for the search of the accused Harish and he was also not available. He further deposed that thereafter, they came back to the Police Station and the accused was sent to lock up. His statement was again recorded on 26.9.2010. Witness has identified the case property i.e. ten currency notes in the denomination of 500 which are Ex.P1.
(53) In crossexamination, he deposed that they reached at the court at about 12.00 pm. and no public person or any court staff were joined at the time of interrogation and recording the disclosure statement of accused Naseem. All the documents were prepared by SI Madan Mohan. He further deposed that they had gone to the village of accused Naseem in a private taxi but he does not remember its number or make. He also does not remember the name of Driver. Driver was not joined in the investigation by the IO. He admitted that the house of the accused Naseem is situated in a thickly populated area, however no public person or Pradhan of the village was called at the time of recovery of Rs. 5000/. He does not remember the number of the recovered notes of Rs. 500/. He admitted that similar Rs. 500/ notes are easily available. He does not remember if the statement of wife of Naseem was recorded or not. He denied the suggestions that no disclosure statement was made by the accused or that no note of Rs. 5000/ denomination of 500 each were handed over to Naseem by his wife or that all the proceedings were State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 40 of 104 conducted while sitting in the Police Station or that he is deposing falsely. (54) PW16 ASI Devender from Haryana Police has deposed that on 01.09.2010 he was posted as ASI in CIA II staff, Gurgaon. According to the witness on 31.08.2010 the accused Naseem was arrested in case FIR No. 318/10, U/s 392 IPC Police Station Sadar, Gurgaon and the accused made the disclosure statement regarding his involvement in the present case i.e. FIR No. 92/2010, Us/ 394/397 IPC, Police Station Mahendra Park in which he has disclosed that he along with his coaccused Asroo, Hafiz, Harish and Amin committed robbery at Sindhu Petrol pump and looted Rs 47 thousand. Witness has further deposed that he informed the Police Station Mahendra Park regarding the disclosure statement of accused Naseem. Witness has further deposed that on 13.09.2010 SI Madan Mohan came in their office and he handed over the copy of FIR of their case to him. According to the witness the disclosure statement of accused Naseem is Ex. PW 16/A in which the relevant disclosure is at serial No. 3. Witness has further deposed that the copy of FIR of Police Station Sadar, Gurgaon is Ex. PW 16/B. According to the witness he is well conversant with the signatures of SI Karan Singh as he had seen him while writing and signing and his statement was recorded on 13.09.2010. The witness has identified the accused Naseem.
(55) In his cross examination by Ld. Defence counsel, witness has deposed that he was handed over the investigations of the case FIR No. State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 41 of 104 318/10, Police Station Sadar, Gurgaon on 01.09.2010. Witness has further deposed that he recorded the disclosure statement of accused Naseem in CIA II staff, Gurgaon which is in the handwriting of Ct. Harish Kumar. According to the witness Ct. Harish Kumar recorded the disclosure on his dictation and he informed Police Station Mahendra Park at about 12 Noon and SI Madan Mohan met him in crime branch CIA on 13.09.2010 at about 11:30 AM and no handing over memo was prepared by SI Madan Mohan after receiving the copy of the FIR, statements of witnesses and disclosure statement. Witness has denied the suggestion that he was deposing falsely at the instance of SI Madan Mohan.
(56) PW17 ASI Mohan Singh from Haryana Police has deposed that on 01.09.2010 he was posted as Head Constable in CIA II staff, Gurgaon. He has further deposed that on 31.08.2010 the accused Naseem was arrested in case FIR No. 318/10, U/s 392 IPC Police Station Sadar, Gurgaon. According to him, the accused made the disclosure statement regarding his involvement in the present case i.e. FIR No. 92/2010, Us/ 394/397 IPC, Police Station Mahendra Park in which he has disclosed that he along with his coaccused Asroo, Hafiz, Harish and Amin committed robbery at Sindhu Petrol pump and looted Rs 47 thousand. He has deposed that ASI Devender informed the Police Station Mahendra Park regarding the disclosure statement of accused Naseem. He has deposed that on 13.09.2010 SI Madan Mohan came in their office. ASI Devender State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 42 of 104 handed over the copy of FIR of their case to him. According to him the disclosure statement of accused Naseem is Ex.PW16/A bearing his signatures at point B in which the relevant disclosure is at serial No. 3. He has deposed that his statement was recorded on 13.09.2010 and has correctly identified the accused Naseem.
(57) In crossexamination he deposed that the disclosure statement of accused Naseem was recorded in the office of CIAII Staff. He admitted that the said office is within the residential premises. He has deposed that ASI Devender requested some public persons from those residential quarters to be a witness in this case. He has further deposed that he was not able to give the name of any such persons to whom ASI Devender asked to be a witness. According to him, he can not give the sources of giving the information but ASI Devender informed him that he has given the information to the Delhi Police. He has denied the suggestions that no disclosure statement was made by accused Naseem or that the same was recorded by them of their own and not the dictation of the accused Naseem or that he is deposing falsely in order to support the Delhi Police. (58) PW18 SI Manoj has deposed that on 22.02.2013 he was posted at Police Station Mahendra Park and he was the Investigating Officer of this case. He obtained the process U/S 82/83 Cr. Police Custody against all the four accused persons. He has deposed that on 09.5.2013, he moved an application before Ld. MM seeking production State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 43 of 104 warrant of accused Harish @ Haaroon as he was running in JC in some other case. According to him thereafter, he was transfered from the Police Station, therefore, the further investigation of this case was handed over to some other IO.
(59) PW19 SI Rajesh Kumar has deposed that on 20.04.2010 he was posted at Police Station Mahendra Park and on that day on receipt of DD No. 7A, which is Ex.PW2/A he along with Ct. Khetal reached near Sidhu Petrol Pump, at GT Karnal road where they found an injured whose name was disclosed as Pardeep. According to the witness he recorded the statement of the injured which statement is Ex.PW1/A and thereafter he handed over him to Ct. Khetal with the directions to take him to the BJRM Hospital. Witness has further deposed that in the meanwhile he picked up the empty cartridge case which were lying on the wooden counter and the led which was lying on the floor of the rest room and he converted both of them into pullandas with the help of a cloth and sealed the same with the seal of RK and seized the same vide memo Ex.PW14/A. According to the witness in the meanwhile Ct. Khetal returned with the MLC of the injured which he handed over to him and SI Madan Mohan had come to the spot and he handed over the MLC, the seizure memo and the sealed pullanda to him.
(60) On a Court question as to what happened to the statement, the witness has clarified that he had handed over the statement to Ct. Khetal State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 44 of 104 for taking the same to the Police Station for registration of the FIR. On another Court question as to when did he do this and why this fact was not disclosed by him previously and the witness has deposed that after the constable returned to the spot along with MLC he handed over the statement to him on which he made his endorsement vide Ex.PW19/A bearing his signatures at point A after which he had send the same to the Police Station through Ct. Khetal. his senior officers were also present at that time. According to the witness he could not mention this fact earlier having forgotten the same. According to the witness he can identify the case property if shown to him. This court has observe that the MHC (M) has failed to produce the cartridge case and the lead lifted from the spot despite having kept the file pending and being given an opportunity for the same. Ld. APP pleads his helplessness and directed the witness to be tendered for cross examination. (61) In his cross examination by Ld. Defence counsel, the witness has deposed that he reached at the spot at about 4:30 AM on his motorcycle along with Ct Khetal and when they reached at the spot 1012 persons including public persons and police officials were present there. Witness has admitted that he had not obtained the signatures of the injured on his statement. According to the witness there is no special reason why his signatures were not obtained on his statement. Witness has admitted that the injured was in a fit Mental State to make a statement. Witness has State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 45 of 104 further deposed that he was sent to BJRM hospital along with Ct. Khetal after recording his statement on the motorcycle of Ct. Khetal. Witness has denied the suggestion that he had recorded the statement of the injured of his own on the directions of the senior officers or that it is for this reason that his signatures are not present on his statement. Witness has further deposed that Ct. Khetal came back to the spot along with injured at about 6 AM and he send the rukka to the Police Station through Ct. Khetal around 6:15 AM and when he send the rukka the SHO and senior officers were already present there at the spot. According to the witness exhibits were lifted in the presence of Ct. Khetal before sending the rukka and he remained at the spot upto 910 AM. Ct. Khetal was also present with him. Witness has denied the suggestion that no rukka was sent by him from the spot. Witness has denied the suggestion that he was deposing falsely. (62) PW20 SI Ratan Kumar has deposed that 05.6.2013, he was posted at Police Station Mahendra Park and on that day in compliance of Production Warrant, the accused Harish was produced in the court. After taking permission from the court the accused Harish @ Haaroon was arrested formally in this case. According to him, he arrested the accused Harrish @ Haaroon formally vide memo Ex.PW5/A, his personal search was conducted vide memo Ex.PW5/B after which the accused Harish was throughly interrogated and whatever he has stated was recorded separately which is Ex.PW5/C. The witness has deposed that his application in this State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 46 of 104 regard is Ex.PW20/A. He thereafter moved an application on the same day before Ld. MM for getting the TIP of the accused Harish @ Haaroon conducted which was fixed for 06.6.2013 and in which TIP the witnesses Rakesh Tyagi and Pradeep Kumar Yadav have failed to identify him. According to the witness, since three other public witnesses were also there in this case, therefore, he again moved an application for getting his TIP conducted and on 22.6.2013 the accused Harish @ Haaroon was put for TIP in which the witnesses Sanjay Oswal, Ajay & Jitender participated in which proceeding the accused Harish @ Haaroon had refused to join the TIP. The TIP proceeding is Ex.PW10/D, his application seeking copy of the TIP proceeding is Ex.PW10/E and proceedings in which the accused Harish @ Haaroon had refused to participate is Ex.PW11/A. (63) The witness has deposed that on 25.6.2013, the accused Harish @ Haaroon was taken to DCP Office Ashok Vihar for the preparation of search slip while they were coming back and reached at Bus Stand Ashok Vihar, the witness Sanjay Oswal met them and had identified the accused Harish @ Harun as the same person among the other persons who committed robbery at petrol pump on 20.4.2010. According to him, the witness Sanjay Oswal had also informed him that this accused was sitting on the driver seat on the Santro vehicle and he took the aforesaid vehicle while driving alongwith the other persons after committing the robbery. He got the empty cartridge and the led head sent through Constable State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 47 of 104 Kanwar Pal after taking the same from MHC(M) on 16.8.2013. Witness has deposed that on 20.7.2013, he got accused Amin, Asru and Hafiz declared PO in proceedings U/S 82/83 Cr. PC and thereafter, he filed supplementary charge sheet against accused Harish & other accused who were declared PO.
(64) In crossexamination he deposed that he made request for the production of accused Harish @ Harun however he did not remember the date. He has deposed that the accused Harish @ Harun was produced on 05.6.2013. He has explained that he had done the entire paper work while sitting outside the court room and it took about 1 ½ hour in completing the entire paper work. He has admitted that accused Harish @ Harun was produced in the court in unmuffled condition by Haryana Police. According to him he obtained permission from the court on 25.6.2013 for the preparation of the search slip. He has deposed that they had gone to the DCP Office in auto rickshaw from the court. According to him, on 25.6.2013 Sanjay Oswal was working at Sindhu Petrol Pump and was residing at Jahangir Puri. He has deposed that he met witness Sanjay Oswal at about 2.002.30 pm and after identifying accused Haarish, witness Sanjay Oswal left. He has deposed that on 25.6.2013, Sanjay Oswal came to Police Station on his own in the evening at about 5.006.00 pm, then he recorded the statement of Sanjay Oswal regarding identification. He has denied the suggestion that he has shown accused State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 48 of 104 Harish @ Haaroon to the witnesses or that he had obtained the signatures of the accused Harish @ Haaroon on blank papers or that he has falsely implicated accused Harish @ Haaroon in the present case. (65) PW21 SI Madan Mohan has deposed that on 20.04.2010 he was posted at Police Station Mahendra Park and on that day after the registration of the present case, the investigations were marked to him and he was handed over the copy of the FIR and original rukka on receipt of which he reached the spot along with Ct. Khetal. According to the witness complainant Pardeep Yadav, SI Rajesh and eye witness Rakesh, Ajay, Jitender and Sanjay and the crime team officials met them at the spot and he inspected the spot. Witness has further deposed that SI Rajesh handed over to him one sealed parcel containing empty cartridge along with led during sealed with the seal of RK, one seizure memo, one MLC and he prepared the site plan at the instance of the complainant vide Ex.PW21/A. Witness has further deposed that he recorded the supplementary statement of complainant and also recorded the statements of Rakesh, Ajay, Jitender and Sanjay and the scene of crime was got photographed. According to the witness the efforts were made to trace the accused persons but they could not be traced. Witness has further deposed that in the evening hours they went to the Police Station and deposited the sealed parcels with the MHC(M) and he recorded the statement of Ct. Ketal U/s161 Cr. P.C. State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 49 of 104 (66) Witness has further deposed that on 02.09.2010 he receipt DD No. 41 B, which is Ex.PW21/B regarding apprehension of accused Naseem in case FIR No. 318/10, Police Station Sadar Gurgaon and he was informed that the accused had made a disclosure statement regarding his involvement in their case therefore on 13.09.2010 he along with Ct. Baljeet went to the office of CIA II, Gurgaon and met ASI Devender and HC Mohan Singh. According to the witness ASI Devender handed over him the copy of FIR, the copy of disclosure statement made by accused Naseem and statements of witnesses and he perused the same and thereafter he recorded the statement of police official of CIA II, Gurgaon U/s 161 Cr. P.C. Witness has further deposed that on 16.09.2010 he along with Ct. Baljeet and Ct. Parveen attended the court of Ld. MM where the accused Naseem was produced in pursuant to production warrant and he took the permission from Hon'ble court and interrogated him and arrested him in this case vide memo Ex.PW7/A and his personal search was also conducted vide memo Ex.PW7/B and he recorded the disclosure statement of accused Naseem vide Ex.PW7/C. Witness has further deposed that the accused Naseem had given the name of coaccused persons in his disclosure statement as Asroo, Amin, Harish @ Harun and Hafiz and he made application before Ld. MM for getting the TIP of accused Naseem conducted. Witness has further deposed that his application is Ex.PW21/C bearing his signatures at point A and the State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 50 of 104 proceedings was fixed for 24.09.2010. According to him, the accused was sent to JC by Ld. MM and he recorded the statement U/s 161 Cr. P.C. of Ct. Baljeet Singh.
(67) Witness has further deposed that on 25.09.2010 the accused was produced for TIP in which he has refused to participate and the proceedings is Ex.PW21/D and the accused was taken on police remand for three days during which he took them at Sindhu Petrol Pump at near Jahangirpuri Metro Station GTK Road where he along with his associates committed robbery. According to the witness, he prepared the memo of pointing out memo which is Ex.PW21/E and Ct. Jai Karan was also with him on that day and Ex.PW21/E bears his signatures at point B. Witness has further deposed that the accused Naseem has also disclosed that he can get recovered Rs. five thousand from his wife as he had handed over the same to her and he recorded his supplementary disclosure statement vide Ex.PW21/F bearing his signatures at point A and the signatures of Ct. Jai Karan at point B. Witness has further deposed that on 26.09.2010 he along with Ct. Baljeet, HC Swaroop and Ct. Jai Karan reached at the house of accused Naseem in village Gawarka, district Mewat and the accused Naseem pointed out his house and wife of accused Naseem namely Shamina met them in the house. According to the witness she had produced 10 currency notes of the denomination of Rs.500/ before the accused Naseem as his share in the looted money and thereafter the State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 51 of 104 accused Naseem had handed over the same to him and he converted the said amount of Rs five thousand into parcel and sealed the same with the seal of MM. Witness has further deposed that the said parcel was taken into possession vide seizure memo Ex.PW15/A and he made efforts to trace the remaining accused persons but they could not be traced till then and he recorded the supplementary statement of Ct. Baljeet U/s 161 Cr. P.C. Witness has further deposed that on 27.09.2010 the accused led them in his village and pointed out the house of his coaccused Amin and in this process while he was being taken to the house of Amin, at the gate of Police Station Pardeep Yadav, complainant met us and had identified him as the same person who along with other accused persons committed robbery at his petrol pump. According to the witness he recorded supplementary statement of complainant U/s 161 Cr. P.C. and when they reached the house of Amin where he was not found available. (68) Witness has further deposed that on the next day i.e. on 28.09.2010 the accused Naseem was produced before Ld. MM and he collected the employer certificate from petrol pump dated 12.12.2010 showing that Pardeep Yadav was working as a night foreman, Rakesh Tyagi working as Cashier, Ajay Yadav working as computer operator, Jitender Singh working as computer operator and Sanjay Oswal working as pump attendant and the certificate is Ex.PW21/G. Witness has further deposed that the said certificate was taken into possession vide seizure State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 52 of 104 memo Ex.PW21/H and he recorded the statements of witnesses and prepared the challan after necessary investigations. According to the witness he filed the charge sheet against accused Naseem in the court and thereafter he was transferred from the Police Station and further investigations of this case was handed over to some other Investigating officer.
(69) Witness has identified the accused Naseem in the court. He has also identified ten currency notes in the denomination of 500 as the same as recovered from the wife of accused Naseem at his instance and the same is collectively Ex.P1.
(70) In his cross examination by Ld. Defence counsel, witness has deposed that he was present in the Police Station when the investigations were handed over to him and they reached at the spot at about 6:45 AM. According to the witness crime team was already present before they reached the spot. Witness has admitted that he did not get the sketch of any of assailants even at the instance of any witness. Witness has denied the suggestion that he had not got prepared the sketch of assailants as none of the witnesses was not able to identify the accused. Witness has further deposed that he had recorded the statement of ASI Devender on 13.09.2010 in CIA II Gurgaon and he has not prepared any memo regarding the receiving of copy of FIR and copy of disclosure statement. Witness has denied the suggestion that ASI Devender on his own recorded State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 53 of 104 the disclosure statement of accused Naseem at his instance regarding the present case. Witness has further deposed that on 16.09.2010 the accused Naseem was produced in the court at around 12 noon and the accused Naseem was produced by officials of Haryana jail and that he had done the entire paper work in respect of arrest while sitting outside the court room. According to the witness it took him about half an hour in completing the entire paper work and after the arrest of accused he muffled the accused Naseem and he took the accused on Police Custody on 25.09.2010 at about 2:00 PM and he was already aware of the place of incident. According to the witness at the spot except pointing out memo, no other document was prepared. Witness has further deposed that on 26.09.2010 they went to village Gwarka in their private vehicle which was hired by them and after crossing 23 streets in the village house of accused Naseem is situated. Witness has admitted that he have not recorded the statement of any public witness regarding the ownership of the house and has voluntarily added that he had requested neighbors to join the proceedings but they had refused. Witness has further deposed that he had not obtained any documentary proof from the above said house regarding the residence of accused Naseem in the said house. According to the witness he cannot tell who were residing near the house of Naseem and he had requested pardhan and 45 respected members of the village to join the investigations but they refused and they informed Police Station State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 54 of 104 Tabru about their investigations at around 3:30 PM before coming to the house of accused Naseem. According to the witness he got their arrival recorded in the daily diary register, however he have not obtained the copy of the same.
(71) Witness has denied the suggestion that no recovery of the currency notes has been made at the instance of accused Naseem or that he has been falsely implicated in the present case. Witness has denied the suggestion that accused was compelled to sign certain blank documents which were later on converted into various memos. Witness has denied the suggestion that he had not conducted free and fair investigations. Witness has denied the suggestion that he was deposing falsely. STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
(72) After completing the prosecution evidence, statements of accused Naseem @ Bhukkar and Harish @ Harun under Section 313 Cr.PC were recorded wherein the entire incriminating material / evidence against the accused were put to them which they have denied. According to the accused Naseem @ Bhukkar he is innocent and has been falsely implicated in this case. He has stated that he did not make any disclosure statement. According to him the witnesses have identified him in the court since his photographs were already shown to them by the Investigating Officer. However he did not examine any witness in defence.
State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 55 of 104 (73) According to the accused Harish @ Harun he is innocent and has been falsely implicated in this case. He has stated that he did not make any disclosure statement. According to him the witnesses have identified him in the court since his photographs were already shown to them by the Investigating Officer. However he did not examine any witness in defence.
FINDINGS (74) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the evidence on record and the written memorandum of arguments filed by the parties and my findings are as under:
Medical Evidence:
(75) The case of the prosecution is that in the armed robbery / dacoity which had taken place in the early morning hours of 20.4.2008, at the Petrol Pump, an employee Pradeep Yadav was injured and was taken to the BJRM Hospital where he was treated and his MLC was prepared. In this regard the prosecution is placing its reliance on the testimony of Dr. Gopal Krishna (PW22) who has proved the MLC which was prepared by Dr. Kundan Kumar under his supervision. The MLC shows that Pradeep Yadav had received injuries i.e. CLW at Mid Frontal Region as the accused Naseem @ Bhukkar had hit the butt of katta on the forehead of State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 56 of 104 Pradeep Yadav. Dr. Gopal Krishan has opined that the injuries received by Pradeep Yadav were Simple in nature. Ld. Defence Counsel has not crossexamined Dr. Gopal Krishan at all and hence the evidence in this regard has gone uncontroverted. In this background, I hold that the medical evidence is compatible to the oral testimony of the victim Pardeep Yadav and conclusively establishes that during the incident hurt / injury was caused to him by the assailants.
Forensic Evidence:
(76) It is the case of the prosecution that the exhibits which were lifted from the spot of incident i.e. the fired cartridge and fired bullet and were sent to for expert opinion in the FSL. In this regard the prosecution has placed its reliance on the testimony of Sh. N. B. Bardhan (PW23) who has proved that on 16.08.2013 one sealed parcel was received in the FSL containing the exhibits of this case. He has proved his report which is Ex.PW23/A which confirms that the fired cartridge case Marked C1 and the fired bullet Marked BC1 were of .315"/8 mm caliber and were Ammunition as defined under Arms Act, 1959. In this background, it stands confirmed that a fire arm was used at the time of robbery.
However, since there is no recovery of any fire arm from the possession of accused Naseem which he allegedly used in the incident, there exhibits could not be subjected to any comparison.
State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 57 of 104 Motive:
(77) Motive has to be gathered from the surrounding circumstances and such evident should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify in the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to others. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
(78) Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 58 of 104 (79) Existence of motive for committing a crime is not an absolute requirement of law but it is always relevant fact, which will be taken into consideration by Courts as it will render assistance to Courts while analysing prosecution evidence and determining guilt of accused. [Ref.:
IV (2012) SLT 257].
(80) Moreover, in a case where there is clear proof of motive for the commission of a crime, it affords added support to the finding of the court that the accused is guilty of the offence charged with. However, at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone, who knows as to what circumstances prompted him to certain course of action leading to the commission of the crime [Ref.: State of U.P. Vs. Bahu Ram reported in 2000 (4) SCC 515 and Ujjagal Singh Vs. State of Punjab reported in 2007 (14) SCALE 428].
(81) The case of the prosecution is that the motive was to commit the armed robbery. Both the accused along with their various associates had committed the incident of robbery and the sole motive was to commit the armed robbery. It is also the case of the prosecution that the accused were involved in large number of cases and it was much latter that when they were arrested in Gurgaon in case FIR No. 318/10 Police Station Gurgaon Sadar that they made disclosure with regard to their State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 59 of 104 involvement in the present case.
(82) Now, it has to be seen whether Section 34 Indian Penal Code is attracted or not. Section 34 has been enacted on the principal of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if prearranged or on the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 60 of 104 amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them.
As was observed in Chinta Pulla Reddy Vs. State of A.P. reported in 1993 Supp (3) SCC 134. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34, it is not necessary to show some over act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P., reported in 2004(3) SCC 793 and reference in this regard is also being made to the case of decision of the Delhi High Court in the case of Mohd. Saleem Vs. State, Crl. Appeal No. 484/2011 decided on 31.5.2013 by the Bench headed by Hon'ble Mr. Justice Sanjiv Khanna.
State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 61 of 104 (83) Applying the above settled principles of law to the facts of present case, I may observe that the motive of the crime can be gathered not only from the previous background of the accused but the manner in which they had come armed with fire arms and iron rods and also done recce of the petrol pump where the armed robbery was committed just few minutes before giving effect to their intentions. The assailants / accused came in a car and asked for petrol and after closely observing the situation committed the offence. While the accused Naseem was the first person who first entered into the cabin while the other persons kept waiting in the car, ready to flee as soon as Naseem who had gone inside would come out and join them but soon thereafter the second boy also joined Naseem with an iron rod / saria in his hand. The manner in which the second boy / assailant then followed the first one i.e. Naseem duly armed with an iron rod / saria after which Naseem removed the cash from the counter and handed over the same to the second person who had entered the cabin carrying the iron rod / saria, and the manner in which both the assailants then fled from the cabin and boarded the car kept ready by their associate i.e. Harish @ Harun and escaped thereafter, establishes that the accused had acted in common consortium and their Common Intention which to commit the armed robbery and also establishes the Motive and intention thereof which was to commit an armed robbery/ dacoity at the Petrol Pump.
State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 62 of 104 Ocular Evidence:
(84) Ocular evidence/eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. The eye witness account requires a careful independent assessment and evaluation for its credibility, it should not be adversely prejudged on the basis of other evidence. The ocular evidence has to be tested for its inherent consistency and inherent probability of the story, consistency of the account given by one witness with that given by the other witness held to be creditworthy, consistency with the undisputed facts, the 'credit' of the witnesses who performed in the witnessbox, their power of observation and it is only then that the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
(85) The entire case of the prosecution is based upon the direct ocular evidence and in this regard the prosecution has relied upon the testimonies of Pradeep Kumar (PW1), Rakesh Tyagi (PW10), Ajay (PW11), Jitender (PW12) and Sanjay Oswal (PW13) who have all corroborated each other on the material aspects particularly with regard to the manner of the offence and have also identified the accused. I may observe that it was Sanjay Oswal who was Pump Operator and was present outside the petrol pump and made 100 number call to the police when he State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 63 of 104 observed Naseem firing at the other employees of the petrol pump inside the cabin. All the above witnesses are the employees of the petrol pump who were present there at the time of the incident.
(86) Before coming to the merits of the testimonies of Pradeep Kumar (PW1), Rakesh Tyagi (PW10), Ajay (PW11), Jitender (PW12) and Sanjay Oswal (PW13), since the prosecution is placing its reliance on these testimonies hence it is necessary for this Court to first determine whether what they have deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 64 of 104 adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.:
Krishnan Vs. State reported in AIR 2003 SC 2978).
(87) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at times under the stress of cross examination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 65 of 104 of Bihar reported in AIR 2002 SC 1965).
(88) Applying these settled principles of law to the facts of present case and coming first to the testimony of Pradeep Kumar (PW1). The relevant portion of the same is reproduced as under:
"......... I reside at the above given address and I am working as Siddu Service Station, 5/5, GT Karnal Road, Mahendra Park, Azad Pur, Delhi, as Night Foreman for the last 17 years and I am also plying my private cab.
On 20.04.2010, at about 4.00 AM, I was present at the abovesaid petrol pump and was sitting on 2nd Pedestal, when I saw that one Santro Car of white colour, without number plate on either side, enter the petrol pump and stopped in front of the petrol filling machine which was being attended by Sanjay Oswal. The driver of the said car asked Sanjay Oswal to filling the petrol tank. Petrol worth Rs.250/was filled in the car. Driver handed over Rs.500/currency note to Sanjay Oswal and he refunded Rs.250/to the driver. Three boys were sitting in that car at that time. Thereafter, two boys alighted from the said car and started talking with each other at a low pitch voice (Kaanafusi) making indication towards the office of the petrol pump. Thereafter, they again boarded in the said car and drove the car towards the office and parked the same in front of the office of the petrol pump. Sanjay Oswal came to me and he also told me that the said boys were also talking with each other at low State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 66 of 104 pitch voice (Kaanafusi) making indication towards the office. After parking the car in front of the gate of the office, I saw that one boy wearing red colour T Shirt and black pants, alighted from the said car and entered our office and I saw that the said boy after entering the office, moved towards the back side of Cashier which boy is present in the court (correctly identified as accused Naseem). After seeing this, I also entered the office making noise and asked that boy that why you are going in the office. After that, the said boy took a turn and instead of going towards the back side of the Cashier, came back and went outside the main gate office murmuring something (Badbadata Huwa) and reached near Santro car. At that time, Rakesh Tyagi, who was the Cashier, was in a semi sleeping condition, putting his both hands below his chin on the table of his office. I told Rakesh Tyagi that you were sleeping and one unknown person reached behind you, meanwhile, the said boy again entered the office, having a country made pistol in his one hand and a handkerchief in his other hand. He pointed out the country made pistol towards the Cashier Rakesh Tyagi and the Cashier due to fear and nervousness fell down towards his back side alongwith the chair, on which he was sitting. He stood up and raised his hands. Thereafter, the said boy i.e. the accused present in the Court today, whose name later on I came to know was Nadeem @ Bhukar, asked the Cashier to hand over the cash to him. The Cashier pointed out State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 67 of 104 towards the cash box (Galla), saying that all the cash is inside that cash box. When the accused Naseem was in the process of removing the drawer/cash box, I stopped him, saying, "Yahaan Koi Cash Vagarah Nahin Hai, Aisa Mat Karo".
Thereafter, the accused pointed out the country made pistol towards me and gave me a blow on my head with the butt of the katta and fired towards me, but the bullet hit the gate of door, which was of glass, on my back side and it made a hole in the said glass. Thereafter the accused put his country made pistol on the counter, removed the drawer/cash box and put the same on the table and from the said cash box, he removed all the cash. Meanwhile, one other associate of the accused also entered the office, having an iron rod, which was in the shape of a Chhaini in one hand. Accused Naseem handed over the cash removed by him from the cash box to his said associate and again picked his Katta and they all went away in the said Santro Car. The complete incident was also recorded in the CC TV Camera, installed at our petrol pump. At that time, Computer Operator Jitender was also there in the office. After firing on me, the accused again loaded his country made pistol with a live cartridge. I do not remember the colour of the clothes of the other associate of the accused who was having iron rod, since at that time, I was bleeding from my head, due to the injury caused by the accused. Rakesh Tyagi told me that exact amount he will tell later on after calculating, but State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 68 of 104 there was about Rs.65,000/ inside the cash box.
Later on, after making calculation, Rakesh Tyagi told me that the exact cash amount in the cash box was Rs.63,500/. My statement/complaint was recorded by the police official, namely Rajesh Kumar and the same is Ex. PW1/A, but I could not sign the same as my both the hands were blood stained at that time, due to the bleeding injury on my head. First, he sent me to the hospital with one police official for medical examination and told me that he will obtain my signature later on. My younger brother Ajay Yadav was also present in the office at the time of incident as he was sleeping in the office and he woke up when Rakesh Tyagi fallen down with the chair on the ground. SI Madan Mohan made inquiries from me at the office and he prepared site plan at the office. The empty cartridge case and the projectile of the bullet were also recovered in the office. Same were lifted by SI Rajesh Kumar and were kept in a polythene and a pulanda was prepared and he put the brass seal on the pulanda. I had seen the brass seal, on which, as far as I remember, letters R and S were found engraved in the opposite direction. Initially, when I was sitting on the 2nd Pedestal, I could observe only three boys inside the car, as the glasses of the windows of the car were tinted, but when two of them alighted from the car at the time of commission of offence, then I observed that one boy, whose mustaches were downwards was sitting on the driver seat, one on the conductor State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 69 of 104 seat and one was sitting on the rear seat and two were involved in the commission of offence and as such they were total five.
After about two months of the incident, I do not remember the exact date, but it may be on 25.09.2010, I went to the Police Station Mahendra Park to make inquiry about the case, there at the gate of PS, I saw SI Madan Mohan alongwith two more police officials and accused present in the Court today, Naseem @ Bhukar was also with them and I identified accused Naseem @ Bhukar there in the presence of police officials, that he was the person, who on 20.04.2010 had removed the cash from the cash box and fired a bullet on me.
I cannot identify the other person because I had not seen him clearly as he was behind Naseem and I just have a glimpse of him.
At this stage, Ld. APP for the state seeks permission to put the accused Harish @ Harron to the witness.
Heard, Permission granted.
At this stage after the accused Harish @ Harron has been put to the witness, he submits that he is not sure and cannot tell for certainty if Harish @ Harron is the same person who had later on entered the room and to whom Naseem had handed over the cash..........."
(89) The witness Pradeep Kumar Yadav has been cross examined at length wherein he explained that he had seen the accused Naseem in the State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 70 of 104 police station on 27.09.2010. He has further explained that he was hit on his head with the butt of the country made pistol and the bleeding which took place was on account of the hitting of the butt on his head. He has also explained that at the time of the incident there were 10 to 12 employees present at the petrol pump. He has denied the suggestion that the accused Naseem @ Bhukkar was not present at the spot or that he did not entered the office of the petrol pump or that he did not attack him with the country made pistol or that the accused Naseem never robbed the cash amount from the galla.
(90) Coming next to the testimony of Rakesh Tyagi (PW10) who was employed as Cashier in the Petrol Pump. The relevant portion of his testimony is reproduced as under:
"............ I am residing at the aforementioned address along with family and I am employee at Sidhu Petrol Pump at 5/5 Mahendra Park, Azadpur as Cashier. On 20.04.2010 I was on cash duty inside the office at the cash room. At about 44:15 AM while I was sitting on the seat one pehlwan/healthy person entered the room aged around 3032 years came from the front side, wearing a T shirt and pant and suddenly came and stood behind me. From the front side our foreman Pardeep Yadav also entered and on seeing this person standing behind my seat questioned him as to how he was standing behind me and asked him to leave the room. On this the State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 71 of 104 said pehlwan type person came and stood in front of me and there was a verbal altercation between Pardeep Yadav and the said boy in which the said person took out a katta/pistol and hit him on the head with the butt of the same. On this Pardeep Yadav started bleeding from his head. Thereafter the said person pointed the pistol/katta on me "pistol mere pe than di" and said "jo kuch bhi hai nikal do". I got scared and immediately raised my hands. In the meanwhile one more person entered the room with a rod type object in his hand. The first pehlwan type person removed the cash from the counter which was already open and handed over the same to the second person and thereafter both of them rushed out of the room where a Santro car was standing. I could see one person sitting on the driver seat and the glasses of the said car were dark and therefore I could not see who else would inside it. The said persons immediately sat in the Santro and went away. These persons had robbed Rs sixty three thousand five hundred from the counter.
I was also called to the jail for purposes of identification of the accused where I identified the accused Naseem @ Bhukar but could not identify the accused Harish @ Harron.
At this stage two sealed envelopes duly sealed with the seal of the Ld. MMs are taken out from the Judicial file.
The first envelope on breaking the seal is found to contain the TIP proceedings conducted by Sh. Neeraj Gaur, Ld. MM. The application filed by State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 72 of 104 the Investigating Officer requesting for conduct for TIP is Ex.PW10/A. The TIP Proceedings conducted by Ld. MM are collectively Ex.PW10/B (running into three pages) wherein the accused Naseem @ Bhukar had refused to participate in the proceedings.
The second envelope on breaking the seal is found to contain the TIP proceedings conducted by Sh. Sandeep Gupta, Ld. MM. The application filed by the Investigating Officer requesting for conduct for TIP is Ex.PW10/C. The TIP Proceedings conducted by Ld. MM in respect of accused Harish @ Harun are collectively Ex.PW10/D (running into three pages) bearing the signatures of the witness at point A which he duly identifies, in which the witness has failed to identify the accused Harish @ Haroon. The application filed by the Investigating Officer for obtaining the copy of the proceedings is Ex.PW10/E. I can identify the said boys if shown to me.
At this stage, witness has correctly identified the accused Naseem @ Bhukar by pointing out towards him as well as by name but not the accused Harish @ Haroon.
At this stage, Ld. APP for the state seeks permission to put the accused Harish @ Harron to the witness.
Heard, Permission granted.
At this stage after the accused Harish @ Harron has been put to the witness, he submits that he is not sure and cannot tell for certainty if State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 73 of 104 Harish @ Harron is the same person who had later on entered the room and to whom Naseem had handed over the cash after removing the same from his counter......."
(91) Witness Rakesh Tyagi has been cross examined at length wherein he has explained that one computer operator Jitender Kumar and Ajay Yadav were present there along with him. He further stated that Ajay was not on duty and was sleeping whereas Jitender Kumar and himself were awake but were not doing anything. The witness also explained that he could not notice the other employees and has voluntarily explained that they were all here and there. He has further stated that they do not have a system of an alarm in the cabin and that the entire episode had taken place within seconds and there was no time to react. According to him there is a CCTV camera installed in his cabin and has voluntarily explained that later when the footage was seen by the police it was not found to be clear and was blurred due to which reason the details of the accused could not be seen. He is not aware if the police had taken the cash register to tally the entries and the robbed cash amount and has denied that suggestion that the CCTV footage did not confirm the presence of the accused Naseem and Harish due to which reason the same was not taken by the police.
(92) It is evident from the cross examination of Rakesh Tyagi that according to him there were only three persons who were there in the State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 74 of 104 cabin while Ajay was sleeping and Pradeep and Jitender were with him and the entire episode was over within seconds and there was no time to react particularly after Naseem had fired upon Pradeep Yadav which bullet had hit the glass of the door and shattered the same. I may observe that he has clearly identified the accused Naseem @ Bhukkar as the pehlwan / wrestler type of person who had first entered the cabin with the fire arm and had fired at Pradeep Yadav but not the accused Harish @ Harun. (93) Coming next to the testimony of Ajay Yadav (PW11) another employee of the Petrol Pump who is also an eye witness to the incident and has identified both the accused Naseem and Harun. The relevant portion of his testimony is reproduced as under:
"........ I am residing at the aforementioned address along with family and I am working as a computer operator at Sidhu Service Station situated at 5/5 GT Karnal road, Near Azadpur. On 20.04.2010 I was on duty at the service station. At about 4 AM I had dosed off when I heard the noise of fire and woke up. I saw my brother Pardeep Yadav bleeding from the head and a tall healthy boy was standing in front of him. He was putting bullet into the katta ("katte ke andar gole dal raha tha" ). He then pointed out the katta to Rakesh Tyagi and asked him to hand over the cash. Rakesh Tyagi got scared and immediately raised his hands and stood up but got unbalanced as his chair slipped and fell down. Rakesh Tyagi was terrified and pointed State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 75 of 104 out towards the galla/counter which was open and told him "jo kuch hai iss main hi hai". On this the said boy immediately removed the entire cash from galla/counter and in the meanwhile his other associate who was outside also entered the room and the first boy who was healthy boy handed over the cash to his other associate and thereafter both these persons ran away on a Santro which was standing outside the gate. These boys had taken away a total amount of Rs 63 thousand five hundred from the counter which I came to know in the morning after the loss was assessed. I can identify both these assailants if shown to me.
At this stage, the witness has correctly identified the accused Naseem by pointing out as well as by name as a sturdy boy who had come inside the cabin and was carrying a katta with which he had threatened Rakesh Tyagi and his brother Pardeep Yadav.
At this stage, the witness has correctly identified the accused Harish @ Harun by pointing out towards him as the second boy to whom the cash was handed over.
At this stage, Ld. APP for the state seeks permission to put leading questions to the witness on the aspect of identification of the accused at Rohini Jail.
Heard, Permission granted.
It is correct that on 22.06.2013 I along with Jitender and Sanjay Oswal on receipt of notice from the Investigating Officer had gone to State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 76 of 104 Rohini Jail for identification of the accused before the hon'ble judge but on the said day after it was informed that I was present along with the other witnesses no TIP proceedings conducted because we were told that accused had refused for TIP proceedings.
Court observations: The said proceedings regarding the refusal of the accused Harish @ Harun is EX PW 11/A collectively running into four pages including the application of the Investigating Officer showing that the accused Harish has refused to participate in the TIP proceedings. The refusal by the accused Naseem is already EX PW 10/B.. ...."
(94) In his cross examined, the witness Ajay Yadav has stated that he was on duty from 10 PM to 6 AM next day and at the time of the incident there were three boys inside the cabin and outside there were 67 boys present. He has further stated that at the time of incident, he was dosing off and taking rest by putting his head on the table in front of him and the the table of Rakesh Tyagi is hardly 57 feet away from his table. He has denied that at the time of incident he was in deep sleep and did not see anything or that he only came to know about the incident after the assailants had left and in order to save his job, he in connivance with the police had shifted the blame on the accused to falsely implicate them in the present case.
(95) I may note that this witness Ajay Yadav who is computer State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 77 of 104 operator, has explained that Rs.63,000/ had been looted and he has been able to identified both the accused i.e. Naseem @ Bhukkar as the person who first entered the cabin with fire arm and Harish @ Harun who entered the cabin later.
(96) Coming next to the testimony of witness Jitender (PW12) who has corroborated the testimony of above witnesses and has identified the accused Naseem but could not identify the accused Harish @ Harun. The relevant portion of his testimony is reproduced as under:
"........ I am residing at the aforementioned address along with my family. I am working at Sidhu Petrol pump, GTK Karnal road, Jahangirpuri as computer operator. On 20.04.2010 I was on my duty in the office. At about 4 AM a well built person having a height of approximate 6 feet entered in our office having age of around 3032 years and came towards the cash box and he stood behind the cashier Rakesh Tyagi. In the meantime our foreman Pardeep Yadav @ Gama Pehlwan also came inside the cashier room and he asked that person to leave the office. Thereafter that stranger/person who had entered in the office got perplexed and he took out a fire arm / weapon i.e. katta and he aimed towards Pardeep Yadav the foreman of our office. But suddenly it was a firing from the katta which that person was holding which hit against the office and also hit Pardeep Yadav @ Gama Pehlwan. On seeing the incident I went behind State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 78 of 104 the almirah being perplexed due to the incident. At that time that person took cash of Rs 6065 thousand which was in the cash box from Rakesh Tyagi, cashier. In the scuffle Rakesh Tyagi fell on the ground.
At this stage witness has pointed out towards the accused Naseem @ Bhukar present in the court today (correctly identified) who had entered in the office and looted the cash of Rs 65 thousand from Rakesh Tyagi and fired due to which Pardeep Yadav received injuries on his head which has accused has caused by the butt of the katta.
Due to fear Rakesh Tyagi handed over all the cash amount which was in his possession at that time which was 6065 thousand to that healthy assailant carrying the katta. In the meanwhile another assailant had entered the room and this healthy person carrying the katta whose name I later on came to know as Naseem in turn handed over the entire cash to that person. Thereafter both of them rushed outside and went away in a white color Santro car which was already parked outside the cabin.
At that time accused was associated with 23 other persons. I can identify the person who came first with the katta whose name I later on came to know as Naseem but not the other person who had followed him thereafter with an iron rod like object in his hand or others who were outside.
On 22.06.2013 I along with Ajay Yadav and Sanjay Oswal on receipt of notice from the State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 79 of 104 Investigating Officer had gone to Rohini Jail for identification of the accused before the hon'ble judge but on the said day after it was informed that I was present along with other witnesses no TIP proceedings were conducted because we were told that accused had refused for TIP proceedings.
Court observations: The said proceedings regarding the refusal of the accused Harish @ Harun is already Ex.PW11/A collectively running into four pages including the application of the Investigating Officer showing that the accused Harish has refused to participate in the TIP proceedings. The refusal by the accused Naseem is already Ex.PW10/B. At this stage, Ld. APP for the state seeks permission to put the accused Harish @ Harron to the witness.
Heard, Permission granted.
At this stage after the accused Harish @ Harun has been put to the witness, he submits that he is not sure and does not recollect and also cannot tell for certainty if Harish @ Harun is the same person who had later on entered the room and to whom Naseem had handed over the cash after removing the same from the counter of Rakesh Tyagi. Witness says that he had become extremely fearful and nervous at that time. ....."
(97) In his crossexamination, the witness Jitender as stated that he was on duty from 10 PM to 6 AM next day and at the time of the incident there were three boys including him, inside the cabin and outside there State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 80 of 104 were 67 boys present. He has further stated that at the time of incident, he was dosing off and taking rest by putting his head on the table in front of him. According to him, the table of Rakesh Tyagi is hardly one feet away from his table and he has also clarified that it is adjoining to his table. He has stated that he remained in hiding behind the almirah for about 15 minutes and the entire episode must have lasted about 15 minutes. He has denied that suggestion that at the time of incident he was in deep sleep and did not see or notice anything or that he only came to know about the incident of robbery after the assailants had left and in order to save his job he in connivance with the police had shifted the blame on the accused to falsely implicate them in the present case. The court asked the witness to explain what he means by Jat type person on which he explained that the said person was healthy pehlwan type and appeared to be belonging to Haryana.
(98) Lastly coming to the testimony of Sanjay Oswal (PW13) who is Pump Operator and also an eye witness who had seen the incident from a different place i.e. outside the cabin from the glass and then immediately made a 100 number call on which the police reached the spot within five minutes. The relevant portion of this testimony is reproduced as under:
".......... I am residing at the aforementioned address along with my family and is working as pump operator at Sidhu Service Station situated at Adarsh Nagar. On 20.04.2010 I was on my duty.
State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 81 of 104 On that day around 4 AM from the side of Jahangirpuri Metro Station one Santro car came. The driver of the said car took the side on the side of the filling machine. The window pane of the said car was dark/tainted with black film. I noticed three persons in the car. The driver of the said car asked me to fill the full tank. Thereafter on the request of driver of the said car to fill up the full tank, I filled up the full tank. I noticed that at that time it was the healthy boy i.e. accused Naseem (present in the court and pointed out by the witness) who was at the driver seat with another boy sitting on the seat next to the driver seat and one boy sitting on the back seat who is also present in the court. At this stage the witness has pointed out towards the accused Harish @ Harun who he states is the person initially sitting on the back seat but after Naseem went inside the cabin followed by the second boy sitting on the adjoining seat got up from the back seat and occupied the driver seat.
From outside I saw from the glass door that the first boy Naseem was pointing a pistol/katta on Rakesh Tyagi whereas the second boy who followed him was carrying a rod. I also saw Pardeep Yadav, the supervisor entering the cabin after Naseem had entered and he asked the first boy to leave the cabin on which Pardeep Yadav was hit with the butt of the katta on his head and he started bleeding after which Naseem removed the cash from the counter and handed over the same to the other boy and they both came out from State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 82 of 104 the cabin and escaped in the Santro car in which the third accused i.e. Harish @ Harun was sitting and he drove the said car. Later on I came to know that the stolen cash was around Rs 63 thousand. ....."
(99) This witness Sanjay Oswal has been cross examined at length wherein he has explained that at the time of incident he noticed that there was one car as standing at the filling machine of Diesel and Santro Car was the only other car in which the assailants had come and there was no other vehicle. He has stated that they were 56 employees on duty at the filling machine. According to him, Naseem was the person who had asked them to fill up the fuel tank and it hardly took him about two minutes to fill up the petrol. He has stated that he had made the call on 100 number when he saw what was happening inside the cabin which call he made from the land line phone installed inside the canteen and thereafter the police had come within five minutes of the call.
(100) I may observe that the witness Sanjay has not only identified the accused Naseem as the person who had first entered the cabin along with fire arm but has also identified the accused Harish @ Harun as the person who was initially sitting at the back seat of the car and then came to the front seat while the other boy had joined the accused Naseem. (101) All these witnesses i.e. Pradeep Yadav, Rakesh Tyagi, Ajay, Jitender and Sanjay Oswal have corroborated each other on material State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 83 of 104 particulars i.e. in so far as the incident and the manner in which it took place and have also identified the accused Naseem as the Tall Healthy person who had first entered the cabin where the cash counter was kept and threatened the persons / employees who were present there with dire consequences and even aimed the katta / pistol upon Pradeep Yadav and hit the but of the katta / pistol head of Pradeep Yadav. There is no reason to disbelieve the testimonies of these witnesses particularly Pradeep Yadav who is also an injured in the incident. In this regard I may observe that the testimony of an injured witness has its own efficacy and relevancy. The fact that the witness sustained injuries on his body would show that he was present at the place of occurrence and had seen the occurrence by himself [Ref.: Mohar vs. State of UP reported in 2002 AIR (SC) 3279:
2002 Cri.L.J. 4310]. Evidence of injured eye witness cannot be discarded in toto on ground of criminal disposition towards accused or improbability of narrating the details of actual accident. More so, on perusal of evidence tested in light of broad probabilities it can be concluded that eyewitness are natural witnesses and they could not have concocted a baseless case against accused. (Ref.: AIR 2003 SC 344). Further, in the case of State of Madhya Pradesh Vs. Mansingh & Ors. reported in 2003 (3) Cri.C.C. 559: 2003 (10) SCC 414 the Hon'ble Supreme Court of India held that evidence of injured witness have greater evidentiary value, unless compelling reasons exist. Hence in this background there is no reason to State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 84 of 104 disbelieve the testimony of the injured eye witness / victim Pradeep Yadav.
(102) The only minor contradiction I may observe is in so far as the accused Harish @ Harun is concerned and the role so attributed to him.
While Pradeep Yadav is not sure of the identity of the accused Harish, Rakesh Tyagi is not able to identify him and even Jitender is not too sure about his identity but in so far as Ajay and Sanjay Oswal are concerned, they have both identified him as one of the assailants. It is immaterial whether he was the person who entered the cabin later or had sat on the driver seat later. Both these witnesses had observed him from different places i.e. while Ajay was inside the cabin, Sanjay was outside near the filling pump and hence the difference in perception. It is only natural that they might have observed him at different points of time. While the witness Ajay observed him when the second boy entered the cabin the witness Sanjay had observed him from outside i.e. near filling pump when the accused was sitting in the car and was in a much better position to have observed his details that Ajay who himself has was in a state of desperation and panic. Further, during the trial, this court had observed that the accused Harish was the extremely thin and tall person with a height of about 6' 2'' / 6' 3'' and having a distinct personality. Therefore, under the given circumstances his identification by the public witnesses cannot be doubted. The cabin in question was having a big glass window from outside and Sanjay has explained that he could see the incident from State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 85 of 104 outside. He has confirmed that Harish was the person who was initially sitting behind the back seat of the car but later came on the front driving seat whereas another boy went inside the cabin with an iron rod for the assistance of Naseem and was handed over the cash which Naseem had removed from the counter. The role so specified by Sanjay in his testimony is more authentic and credible. It is not a material contradiction since all the accused are jointly liable. Whether this contradiction is fatal to the prosecution case qua the accused Harish, is an aspect which has been pondered over by me and I may observe that the Hon'ble Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment of "Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat", reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1), the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses.
(a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 86 of 104
(c) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(d) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(e) In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated lateron.
(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 87 of 104 subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment. (103) It should be remembered that human behaviour varies from person to person and different people react and behaved differently in a different situation. How person can behave in a particular situation cannot be predicted. (Ref.: State of UP Vs. Devender Singh reported in AIR 2009 SC 3690). It is writ large that the power of observations varies depending upon the situation in which the witness is placed. While all the other witnesses were inside the cabin, Sanjay Oswal was outside and was in much more better position to observe the assailants who initially did not enter the cabin and was inside the car. Under these circumstances, this witness has identified the accused Naseem as the person who had entered inside the cabin but not Harish who remained inside the cabin for few seconds whereas Rakesh was very much afraid and even fell down from his seat but when fire was shot by Naseem which hit the glass and shattered the same thereby diverting the entire focus of the person present inside the cabin towards Naseem. I therefore hold that the identification of the accused Harish by Sanjay Oswal cannot be doubted. There is no history of enmity between the accused and any of the witnesses and hence there is no reason why they would falsely implicate him merely on the State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 88 of 104 asking of the police.
(104) An arguments has been raised by the Ld. Defence Counsel that there was CCTV camera installed in the petrol pump visuals of which have been deliberately withheld from the court as this would have proved the innocence of the accused. I may observe that in this regard valid explanation is forthcoming in the testimony of the above witnesses. It has been explained by the witnesses that though the CCTV camera was installed at the petrol pump but the police found the same n extremely blurred. This I am sure would have been the case since the incident in question took place in the early morning hours at about 4:00 AM when it was totally dark. It was open for the accused to have called for the said visuals to prove their case, which has not been done. (105) The accused Naseem @ Bhukkar and Harish @ Harun I may observe had been apprehended much later i.e. after they were apprehended by the Haryana Police in case FIR No. 318/10 under Section 392 IPC Police Station Sadar Gurgaon and the arrest in the present case was only formal after the information was sent to Delhi Police on 2.09.2010 (Naseem @ Bhukkar) and on 5.6.2013 (Harish @ Harun). (106) The accused Naseem has refused for his Judicial TIP whereas in case of Harish @ Harun, in so far as the witnesses Rakesh and Pradeep Yadav are concerned, they were not able to identify him in Judicial TIP whereas he has refused to participate in Judicial TIP in respect of the State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 89 of 104 witness Sanjay, Jitender and Ajay out of which Ajay and Sanjay identified him in the court, which cannot be doubted.
(107) In so far as the aspect of recovery of currency notes to the tune of Rs.5,000/ which the accused Naseem got recovered from his house pursuant to his arrest and disclose statement, I may observe that neither the currency notes were subjected to any Judicial TIP nor there being any definite identification mark of the Petrol Pump nor its number were ever specified to conclusively connect the same with the robbery / dacoity.
(108) Also, there is no definite evidence of the fact that more then four persons were involved in the incident to bring the case within the ambit of Section 395 IPC (dacoity) except for the oral testimony of Pradeep Yadav which finds no independent confirmation from any source. (109) In view of my above discussion, I hold that the prosecution has been successfully able to establish and prove the charges against both the accused Naseem @ Bhukkar and Harun @ Harun under Section 392 read with 394 Indian Penal Code. Further, the prosecution has also been able to prove and substantiate the allegations under Section 397 Indian Penal Code qua the accused Naseem @ Bhukkar who was the person who had first hit Pradeep Yadav with the butt of the katta and then fired upon him which fire instead hit the glass on the door and created a hole in the same (confirmed by the FSL report).
State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 90 of 104 FINAL CONCLUSION (110) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(111) Applying the above principles of law to the facts of present case, it is evident that the investigations conducted including the documents prepared in the present case have been substantially proved by State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 91 of 104 the police witnesses including the Investigating Officers. It stands established and proved that on 20.04.2010 at about 4:00 AM, at Sidhu Petrol Pump, G.T.K. Road, Mahendra Park, Delhi, the accused Naseem @ Bhukkar and Harish @ Harun along with their associates came in a car and asked the petrol pump employee to fill the tank of the car. It stands established and proved that thereafter the accused Naseem @ Bhukkar alighted from the car and went inside the cabin situated in the petrol pump having a katta / pistol in his hand and threatened the employees present there and also fired a shot which bullet hit the glass of the window of the cabin and thereafter he removed the entire cash amount lying in the cash counter / galla and also hit the butt of katta / pistol on the forehead of one of the employee namely Pradeep Kumar Yadav who sustained injury. It stands proved that in the meanwhile the accused Harish @ Harun who was initially sitting in the car on the back seat or the driver seat whereas another boy who was sitting on the seat adjoining the driver seat entered the cabin with an iron rod / saria in his hand on which the accused Naseem @ Bhukkar handed over the looted cash amount to him and thereafter both of them came out of the cabin and fled in the car which was driven by Harish @ Harun who remained sitting in the car itself. It stands established that one of the employees namely Sanjay Oswal who was the Pump Operator was present outside the cabin and he saw the entire episode from outside made a 100 number call and police came to State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 92 of 104 the spot within five minutes and the injured Pradeep Yadav was taken to BJRM hospital where he was treated for the injuries sustained in the incident and the present case was registered. The prosecution has also been able to successfully proved the apprehension and arrest of the accused Naseem @ Bhukkar and Harish @ Harun in another case bearing FIR No. 318/10 Police Station Sadar Gurgaon under Section 392/34 Indian Penal Code in which they had disclosed about their involvement in the present case pursuant to which they were formally arrested in the present case.
(112) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the Investigating Agency does not negate the offence. (113) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 93 of 104 prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative in so far as the aspect of robbery and causing injury to the victims is concerned, which evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witness of the prosecution have been able to built up a continuous link.
(114) In view of my above discussions, the accused Naseem @ Bhukkar and Harish @ Harun are hereby held guilty for the offence under Section 392 read with 394 Indian Penal Code. The accused Naseem @ Bhukkar is also held guilty for the offence under Section 397 Indian Penal Code.
(115) Be listed for arguments on sentence on 15.11.2014.
Announced in the open Court (Dr. KAMINI LAU) Dated: 14.11.2014 ASJ (NW)II: ROHINI
State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 94 of 104 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 99/2013 Unique Case ID No.: 02404R0321872013 State Vs. (1) Naseem @ Bhukhar S/o Dhoop Khan R/o Gawarka, PS Tavru Distt.: Mewat, Haryana (Convicted) (2) Harish @ Harun S/o Sulehman R/o Village Sunari PS Tavru, Distt.: Mewat, Haryana (Convicted) FIR No. 92/2010 Police Station: Mahendra Park Under Sections: 394/397/411/34 Indian Penal Code.
25/27/54/59 Arms Act.
Date of conviction : 14.11.2014 Argument concluded on : 15.11.2014 Date of Sentence : 17.11.2014 APPEARANCE: Present: Sh. Shiv Kumar, Ld. Addl. PP for the State.
Both convicts namely Naseem @ Bhukhar and Harish @ Harun in Judicial Custody with Ms. Sadhna Bhatia, Advocates / Amicus Curiae.
State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 95 of 104 ORDER ON SENTENCE:
(1) As per the allegations, on 20.04.2010 at about 4:00 AM, at Sidhu Petrol Pump, G.T.K. Road, Mahendra Park, Delhi, within the jurisdiction of Police Station Mahendra Park, the accused Naseem @ Bhukhar and Harish @ Harun along with their associates namely Ashu @ Mota, Amin and Hafiz (all not arrested), committed robbery at the above said Petrol Pump of Rs.63,500/ (Rupees Sixty Three Thousand Five Hundred) and while committing the robbery the accused Naseem @ Bhukhar also caused injuries on the person of Pardeep (employee of the Petrol Pump) by hitting the butt of the katta on his forehead.
(2) However, on the basis of the testimonies of various witnesses examined by the prosecution and other material which has come on record, this court vide a detailed Judgment dated 14.11.2014 has held the accused Naseem @ Bhukhar and Harish @ Harun guilty for the offence under Section 392 read with 394 Indian Penal Code. The accused Naseem @ Bhukhar has also been held guilty for the offence under Section 397 Indian Penal Code.
(3) Heard arguments on the point of sentence. The convict Naseem @ Bhukhar is aged about 28 years, studied upto 4th class, farmer by profession, married, having a family comprising of aged parents, four sisters (all married), three brothers (all married), wife and five minor State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 96 of 104 children. Apart from the present case, there are Thirteen other previous involvements of the convict Naseem @ Bhukhar as per the record of Police Station Tavru, District Mewat, Haryana.
➢ FIR No. 105/10, under Sections 379/356 IPC Police Station Bilaspur, Gurgaon.
➢ FIR No. 115/10, under Sections 392/394 IPC & 25 Arms Act, Police Station Bilaspur, Gurgaon.
➢ FIR No. 106/10, under Sections 392/397 IPC & 25 Arms Act, Police Station Bilaspur, Gurgaon.
➢ FIR No. 318/10, under Sections 392 IPC Police Station Sadar Gurgaon.
➢ FIR No. 77/10, under Sections 392 IPC Police Station Badshahpur Gurgaon.
➢ FIR No. 139/10, under Sections 393/34 IPC Police Station Kasala Rewari.
➢ FIR No. 143/10, under Sections 392/34 IPC Police Station Sampla Rohtak.
➢ FIR No. 116/10, under Sections 279/337 IPC Police Station Bilaspur, Gurgaon.
➢ FIR No. 65/10, under Sections 392/397/34 IPC Police Station City Dadari, Bhiwani.
➢ FIR No. 146/10, under Sections 392/506 IPC & 25 Arms Act State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 97 of 104 Police Station Sadar Dadari, Bhiwani.
➢ FIR No. 109/10, under Sections 395/397 IPC & 25 Arms Act Police Station Faruk Nagar, Gurgaon.
➢ FIR No. 419/10, under Sections 392 IPC Police Station Sadar ,Jhajjar.
➢ FIR No. 436/10, under Sections 382 IPC Police Station Sadar Jhajjar.
(4) The convict Harish @ Harun is aged about 27 years, studied upto 5th class, farmer by profession, married, having a family comprising of aged parents, four sisters (three married one unmarried), two brothers (both married), wife and four minor children. Apart from the present case, there are Nineteen other previous involvements of the convict Harish @ Harun as per the record of Police Station Tavru, District Mewat, Haryana and Delhi State Dossier No. 124671.
➢ FIR No. 265/05, under Sections 457/380 IPC Police Station Tavru.
➢ FIR No. 175/07, under Sections 399/402 IPC & 25/54/59 Arms Act Police Station Tavru.
➢ FIR No. 117/07, under Sections 379/411 IPC Police Station Badshapur Gurgaon.
➢ FIR No. 187/09, under Sections 379 IPC Police Station Manesar Gurgaon.
State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 98 of 104 ➢ FIR No. 214/11, under Sections 4A/8 & 2/80 C S Act Police Station Nuh Mewat.
➢ FIR No. 41/99, under Sections 4A/8 & 2/80 C S Act Police Station Patodhi Gurgaon.
➢ FIR No. 109/10, under Sections 379/356/307/395 IPC Police Station Faruk Nagar Gurgaon.
➢ FIR No. 451/10, under Sections 382 IPC Police Station Jhajjar.
➢ FIR No. 279/11, under Sections 4A/8 & 2/80 C S Act Police Station Jhajjar.
➢ FIR No. 143/10, under Sections 392/34 IPC & 25/54/59 Arms Act Police Station Sapla Rohtak.
➢ FIR No. 49/14, under Sections 174A IPC Police Station Sadar Tavru.
➢ FIR No. 436/10, under Sections 382 IPC Police Station Sadar Jhajjar.
➢ FIR No. 01/12, under Sections 25/54/59 Arms Act Police Station Dharuheda.
➢ FIR No. 94/10, under Sections 392/397 IPC & 25/54/59 Arms Act, Police Station Kalanaur.
➢ FIR No. 309/10/10, under Sections 392/397 IPC & 25 Arms Act, Police Station Sadar Jhajjar.
State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 99 of 104 ➢ FIR No. 318/10, under Sections 395/397 IPC Police Station Gurgaon Sadar.
➢ FIR No. 106/10, under Sections 392/397 IPC & 25/54/59 Arsm Act Police Station Bilaspur.
➢ FIR No. 105/10, under Sections 356/379 IPC Police Station Bilaspur.
➢ FIR No. 222/10, under Sections 392/395 IPC Police Station Beri.
(5) Ld. Amicus Curiae has vehemently argued that though the convicts were involved in other cases, yet they have been acquitted in the same and hence keeping in view their young age and other family circumstances since any harsh view at this stage would be detrimental for the entire future of the convicts a lenient view be taken against them. (6) I have considered the rival contentions. I may observe that in the recent past Delhi has experienced a spurt and rise in the incidents of snatching, robbery, dacoity, murder and other kinds of crime. There has been a 43.6 percent increase in Delhi's crime graph in 2013 over 2012. A staggering 73,958 cases were registered under the Indian Penal Code in 2013 up from 51,479 in the previous year.
(7) The deteriorating law and order problem of the City is a matter of serious concern and immediate steps are required to be taken at all levels for ensuring security and safety of the citizens. Instances of young State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 100 of 104 persons getting involved in criminal activities of robbing innocent persons by putting them under threat of death, are also on rise. Criminals are unhesitatingly and indiscriminately using dangerous arms/ weapons on helpless victims who may or not offer any resistance thereby spreading terror in the society and adversely affecting social order and the faith of people in the system. The courts are required to find answers to the new challenges facing the society and to mould the sentencing system to meet these challenges. The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should be conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of the crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is desirability to keep the offender out of circulation.
(8) There was no previous animosity between the convicts and the victims who were employee of the Petrol Pump and the intent was solely monetary gain i.e. to commit robbery at the Petrol Pump. Undue sympathy, under these circumstances, to impose inadequate sentence upon the convicts who are habitual and repeat offenders would do more harm to the justice system to undermine the public confidence in the efficacy of law State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 101 of 104 and society could not long endure under such serious threats. It is, therefore, the duty of this court to award a sentence having regard to the nature of the offence and the manner in which it was executed or committed. (Ref: Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463).
(9) The manner in which the offence has been committed by the convicts in the early morning hours shows that the convicts have no respect for law and legal process of this Country and they have an impression that perhaps the Legal System of this Country is incompetent to hold them back for their illegal activities. No doubt, the Indian Legal System particularly the Criminal Justice Mechanism has certain practical failings which is highly disturbing and to some extent appears to have shaken the faith of the people resulting into emboldening of the wrong doers but still I hold that things are not as bad as they may appear. No leniency can be shown to the persons who in their capacity as Domestic Help have abused and exploited the trust so reposed upon them by their employers. In this being the background, I award the following sentence to the convicts: (10) The convict Naseem @ Bhukhar is hereby sentenced to Rigorous Imprisonment for a period of Seven (07 Years) and fine to the tune of Rs.5,000/ (Rs. Five Thousand) for the offence under Section 392 read with 394 Indian Penal Code. In default of payment of fine, the State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 102 of 104 convict shall undergo Simple Imprisonment for 15 Days . (11) The convict Naseem @ Bhukhar is also hereby sentenced to Rigorous Imprisonment for a period of Seven (07 Years) and fine to the tune of Rs.10,000/ (Rs. Ten Thousand) for the offence under Section 397 Indian Penal Code. In default of payment of fine, the convict shall undergo Simple Imprisonment for One Month.
In so far as the convict Naseem @ Bhukhar is concerned, both the above sentences shall run concurrently.
(12) The convict Harish @ Harun is hereby sentenced to Rigorous Imprisonment for a period of Seven (07 Years) and fine to the tune of Rs.5,000/ (Rs. Five Thousand) for the offence under Section 392 read with 394 Indian Penal Code. In default of payment of fine, the convict shall undergo Simple Imprisonment for 15 Days. (13) Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period already undergone by them as per rules. (14) It is clarified that the above sentences shall run CONSECUTIVELY to sentences so imposed upon the convicts in any other case.
(15) The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, State Vs. Naseem @ Bhukkar, FIR No. 92/10, Police Station Mahendra Park Page No. 103 of 104 functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
(16) Copy of the Judgment and order on sentence be given to the convicts free of costs. One copy of the order on sentence be attached along with the custody warrants of the convicts.
(17) File be consigned to Record Room to be taken up after arrest of the coaccused who have not been arrested till date.
Announced in the open Court (Dr. KAMINI LAU) Dated: 17.11.2014 ASJ (NW)II: ROHINI
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