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Delhi District Court
State vs 1. Dharambir, on 13 August, 2009
Author: Ms. Pratibha Rani
     IN THE COURT OF SMT. PRATIBHA RANI,
   ADDL. SESSIONS JUDGE, TIS HAZARI COURTS,
                    DELHI

SC No.36/08

State                 Vs     1.    Dharambir,
                                   S/o Sh. Sudan Singh,
                                   R/o B-538, Pandav Nagar,
                                   Delhi.

                             2.    Vicky,
                                   S/o Sh. Ram Kumar,
                                   R/o T-173, Illahibux Road,
                                   Nai Wala, Karol Bagh,
                                   Delhi.

                             3.    Raju,
                                   S/o Sh. Panni
                                   R/o B-535, Pandav Nagar,
                                   Delhi.

                             FIR No.284/05
                             U/s 308/323/324/341/34 IPC
                             PS : Patel Nagar

                             Date of Institution : 1.3.08
                             Arguments heard on : 2.1.09
                             Order pronounced on : 2.1.09

                             ***

JUDGMENT

Accused Dharambir, Vicky and Raju have been sent to face trial for the offence punishable under Sec.308/323/324/341/34 IPC on the basis of the complaint made by Sh. Subhash. In brief the case of the prosecution is that on 19.5.2005 the complainant Sh. Subhash had some altercation 1 with accused Raju and Dharambir. On 21.5.2005 at about 9.30 - 10.00 pm when he was present at his shop, accused Raju, Dharambir and Vicky came to his shop and started quarreling and beating him. Accused Raju caught hold of him while accused Dharambir hit on his forehead with a brick which was lying there. In the meantime, his son Amit, his wife Kaushalya and his daughter Seema also reached there and when they tried to save him, accused Vicky hit a brick on the head of his son Amit and all the three accused also gave leg and fist blows to his son. His wife and daughter also sustained injuries in the said quarrel. Police was informed and PCR Van removed the injured persons to DDU Hospital. During investigation, all the three accused were arrested and after completion of investigation, they were sent to face trial for the offences complained of.

2. After committal of the case to the Court of Sessions, all the three accused were charged on 27.3.2008 for the offence punishable under Sec.308/323/324/34 IPC to which they pleaded not guilty and claimed trial.

3. Prosecution has examined four witnesses in all in support of its case i.e. PW-1 Sh. Subhash - the complainant/injured, PW-2 Smt. Kaushalya, PW-3 Ms. Seema and PW-4 Sh. Amit - wife, daughter and son of the complainant respectively.

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4. PW-1 Sh. Subhash, the injured/complainant has stated that he did not remember the exact date, month or the year however, about three years ago (his statement was recorded on 2.1.2009) he was present at his shop and at about 8.00/9.00 pm a quarrel took place between some unknown persons in front of his shop. He had also gone to that side. One brick hit on his forehead. His son Amit also sustained injury on his head and hands due to pelting of stones in the said quarrel. He has further stated that he was removed to DDU Hospital by the PCR officials and that local police also reached the hospital and obtained his signature on a paper. He has identified his signature at point-A on statement Ex.PW1/A but volunteered that he did not know its contents.

5. As this witness did not support the case of prosecution, he was cross examined at length by Ld. Addl. PP for State. During cross examination on behalf of State, he has denied the suggestion that on 19.5.2005 in the evening there was some altercation between him on one side and accused Raju and Dharambir on the other side and that on 21.5.2005 at about 9.30 to 10.00 pm when he was present at his shop, accused Raju, Dharambir and Vicky came to his shop and started beating him. H has also denied the suggestion that while accused Raju caught hold of him, accused Dharambir hit a brick on his forehead and 3 in the meantime, his son Amit, his wife Kaushalya and his daughter Seema also reached there who tried to save him but the accused Vicky hit a brick on the head of his son Amit and all the three accused persons also gave leg and fist blows to his son. He has also denied the suggestion that his wife and daughter sustained injuries in the said quarrel and at the hands of accused persons and that he had signed statement Ex.PW1/A at point-A after admitting the same as correct which was recorded on his dictation. He has admitted that a cross case was also registered against him and his family members and the same had been compromised before the Ld. MM. He has denied that police also prepared site plan on his pointing out and that he was deliberately suppressing the true facts and deposing falsely to save the accused persons due to the compromise with the accused persons.

6. PW-2 Smt. Kaushalya, wife of the complainant and also one of the injured, has stated that she did not remember the exact date, month or the year however, about three years back (her statement was recorded on 2.1.2009), on coming to know that a quarrel had taken place in front of the shop of her husband between some unknown person, she alongwith her son and daughter also reached the shop of her husband where crowd was pelting stones and one of the stone hit on her chest due to which 4 she sustained injuries. She was removed to DDU Hospital by the police where she got medical treatment. She has stated that no inquiry was made from her by the police nor her statement was recorded.

7. As this witness did not support the case of prosecution, she was cross examined by ld. Addl. PP for State but could not extract anything incriminating against the accused persons. During cross examination on behalf of State, she has denied the suggestion that on 19.5.2005 accused Dharambir and Raju had some altercation with her husband and on 21.5.2005 at about 10.00 pm, accused Dharambir, Raju and vicky came to the shop of her husband and started beating her husband and that accused Dharambir hit a brick on the forehead of her husband while accused Raju caught hold her husband. She has further denied the suggestion that when she alongwith her daughter Seema and son Amit tried to save her husband, accused Vicky hit a brick on the head of her son Amit and that she and her daughter Seema also sustained injuries in the said process. She has admitted that a cross case was registered against her and her family members which had been compromised in the Court. She has denied that she was intentionally suppressing the true facts and deposing falsely to save the accused persons as the matter had been settled with the accused persons.

5

8. PW-3 Ms. Seema, daughter of the complainant has stated that she did not remember the date, month or the year, however, about three years back (her statement was recorded on 2.1.2009) on coming to know that a quarrel had taken place in front of the shop of her father between some unknown persons, she alongwith her mother and brother reached the shop of her father where due to pelting of stones by the crowd, she also received injury on her forehead near left eye. She was removed to DDU Hospital by the police. She has stated that neither any inquiry was made from her by the police nor her statement was recorded. As this witness turned hostile, she was cross examined by Ld. Addl. PP for State but nothing incriminating has come during her cross examination. She has denied that on 19.5.2005 accused Dharambir and Raju had some altercation with her father and that on 21.5.2005 at about 10.00 pm, accused Dharambir, Raju and vicky came to the shop of her father and started beating her father and that accused Dharambir hit a brick on the forehead of her father while accused Raju caught hold her father. She has also denied that when she alongwith her mother Smt. Kaushalya and brother Amit tried to save her father, accused Vicky hit a brick on the head of her brother Amit and that she and her mother also sustained injuries in the said process.

6

9. PW-4 Sh. Amit, son of the complainant has also deposed on the identical lines and stated that about three years ago, on coming to know that a quarrel had taken place in front of the shop of his father between some unknown person, he alongwith his mother and sister reached the shop of his father where due to pelting of stones by the crowd, he received injury on his forehead. He has further stated that he was removed to DDU Hospital by the police and that his statement was not recorded by the police.

10. As this witness did not support the case of prosecution, he was cross examined by Ld. Addl. PP for State but without any success. During cross examination on behalf of State, he has denied that on 19.5.2005 accused Dharambir and Raju had some altercation with his father and on 21.5.2005 at about 9.30/10.00 pm, accused Dharambir, Raju and vicky came to the shop of his father and started beating his father and that accused Dharambir hit a brick on the forehead of his father while accused Raju caught hold his father and that when he alongwith my mother and sister tried to save his father, accused Vicky hit a brick on his head and that his mother and sister also sustained injuries in the said process.

11. From the above statement made by the complainant/injured i.e. PW-1 Sh. Subhash and PW-2 Smt. 7 Kaushalya, PW-3 Ms. Seema and PW-4 Sh. Amit, i.e. wife, sister and son of the complainant who received injuries in this incident, it is clear that they have not supported the case of prosecution, hence no fruitful purpose would have been served by examining other witnesses, hence PE was closed by order of the Court. As nothing incriminating had come on record against the accused persons which could be put to them, their statement under Sec.313 was CrPC dispensed with.

12. As the evidence adduced by the prosecution does not prove the guilt of accused persons for which they have been charged, all the three accused persons namely Dharambir, Vicky and Raju are acquitted of the charge. File be consigned to Record Room.

Announced in the open Court ( PRATIBHA RANI ) 02.01.2009 Addl. Sessions Judge/Delhi 8 IN THE COURT OF SMT. PRATIBHA RANI, ASJ-01 (Central), TIS HAZARI COURTS, DELHI SC No.63/08 Surender Gupta Vs. (1) Rahul Chaudhary S/o Late Sh. Rishi Pal S/o Sh. Krishan Chaudhary R/o 16, Nishant Kunj, Pitam Pura, Delhi (2) Krishan Chaudhary Both R/o H. No. 5800 Gali No.6, New Chandrwal Delhi.

(3) Other unknown persons U/s 147/149/323/308/504/506/34 IPC.

PS : Roop Nagar Date of Institution : 9.4.07 Arguments heard on : 17.1.09 Order pronounced on : 17.1.09 *** JUDGMENT The present complaint case was filed by Sh. Surender Gupta before the Court of ld. CMM, Delhi and which was assigned to the Court of Sh. Kanwaljeet Arora, ld. ACMM, Delhi for disposal. The facts leading to filing of the complaint case are that the local police instead of booking the accused under the relevant provisions of law, connived with the accused persons and falsely implicated the complainant and his two sons namely Tarun Gupta and Divy Gupta in case FIR No.105/07, under sections 323/308/34 IPC, PS Roop Nagar. It is alleged in 9 the complaint that on 18.3.2007 at about 2.30 pm the complainant alongwith his two sons had gone to Kamla Nagar Market in their car No. D-2C-V-6107 and the car was being driven by Divy Gupta. When the car reached near old Mc Donald Restaurant, complainant's son was to take right turn for parking the car. A car bearing No. DL-5C-B-3398 being driven by accused No.1 with accused No.2 sitting on left front seat came from the side of the road with a result that car of the accused and of complainant came head to head. Divy Gupta asked accused No.1 to take his car back so that his car could go ahead. In the mean time many cars and rickshaws jammed the road behind the car of the complainant. Accused No.1 shouted on Divy Gupta to take his car back to which Divy Gupta asked accused No.1 that since the road behind his car was jammed, it was not possible for him to take his car back. On this both the accused came out of the car and started abusing complainant and his sons and they also called 8-10 persons from nearby and formed an unlawful assembly and started beating the complainant and his sons with kicks and fists due to which they sustained injuries. PCR was informed and the police came to the spot. The complainant alleged that in the PS, police did not register any complaint rather they were abused and ill-treated and they were also falsely implicated in case FIR No.105/07. 10

2. During the pre-summoning evidence Dr. Madhu Arora of Hindu Rao Hospital was examined as CW-1. She has stated that on 18.3.2007 she examined Tarun Gupta and prepared her MLC Ex.CW1/A. CW-2 Dr. Chhavi Shukla of Hindu Rao Hospital has stated that on 18.3.2007 she examined Divy Gupta and prepared her MLC Ex.CW2/A. Complainant Surender Gupta has examined himself as CW3 and his two sons namely Devy Gupta as CW4 and Tarun Gupta as CW5.

3. On the basis of material on record and after hearing the ld. Counsel for the complainant, vide order dated 10.1.2008 ld. ACMM had come to the conclusion that prima facie, a case under Section 323/506/34 IPC is made out against the accused No.1 and 2 and ordered for summoning of both the accused persons.

4. On application of the complainant and 'no objection' given by the ld. Counsel for the accused persons, this case was sent to this Court as the other connected case bearing FIR No.105/07, under Sections 323/308/341/34 IPC, PS Roop Nagar was pending trial before this Court.

5. After the case was received in this Court, both the accused persons were charged for the offence punishable under Sec.323/506/34 IPC to which they pleaded not guilty and claimed trial.

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6. Prosecution has examined three witnesses in all in support of its case. PW1 Surender Kumar Gupta has stated that about one year back he alongwith his two sons Tarun Gupta and Divy Gupta had gone to Kamla Nagar and when they reached near Old Mc Donald Restaurant, there was a heavy traffic jam and there was a crowd of about 60-70 persons. He has stated that some person from the crowd pushed his sons due to which they fell down and sustained injuries. He has further stated that as the persons from the crowd were telling that the assailant were the accused, for that reason he named them but he did not see the accused persons at the spot.

7. As this witness did not support the case, he was cross examined at length by the ld. Addl. PP for the State but without any success. During cross examination this witness has admitted that the complaint Ex.PW1/A bears his signature at point A but added that he made the complaint on the basis of information given to him by the crowd regarding the names of the accused persons. This witness has also volunteered that he had not seen the accused persons at the spot. PW1 Surender Gupta has also admitted that he made statement on 17.5.2007 before the Court of ld. ACMM, Delhi but volunteered that he made that statement on the basis of the above facts given by the persons in the crowd.

8. PW2 Tarun Gupta and PW3 Divy Gupta have made 12 identical statement to the effect that about one year back they alongwith their father had gone to Kamla Nagar and when they reached near Old Mc Donald Restaurant, there was a heavy traffic jam. They have also deposed that there was a crowd of about 60-70 persons and some person from the crowd pushed them due to which they fell down and sustained injuries. They were taken to HRH Hospital for treatment. PW@ and PW3 have further deposed that as the persons from the crowd were telling that the assailant were the accused and for that reason their father named them, however, they did not see the accused persons at the spot.

9. As both these witnesses did not support the case, they were cross examined by the ld. Addl. PP for the State but during their cross examination also nothing material has come out which could help the prosecution.

10. In this case, as the complainant i.e. PW-1 Sh. Surender Gupta and both the injured i.e. PW2 Tarun Gupta and PW3 Divy Gupta did not support the case, no fruitful purpose would have been served by examining other witnesses who are doctors and police officials, hence PE was closed by order of the Court. Since nothing incriminating against the accused persons had come on record which could be put to the accused persons, their statement under Sec.313 was CrPC dispensed with. 13

11. As the evidence adduced by the prosecution does not prove the guilt of accused persons for which they have been charged, both the accused persons namely Rahul Chaudhary and Krishan Chaudhary are acquitted of the charge. File be consigned to Record Room.

Announced in the open Court ( PRATIBHA RANI ) ASJ-01 (Central)/Delhi 17.1.2009 14 IN THE COURT OF SMT. PRATIBHA RANI, ASJ-01 (Central), TIS HAZARI COURTS, DELHI SC No.41/08 State Vs (1) Surender Gupta S/o Late Sh. Rishi Pal R/o 16, Nishant Kunj, Pitam Pura, Delhi (2) Tarun Gupta S/o Sh. Surender Gupta R/o 16, Nishant Kunj, Pitam Pura, Delhi (3) Divy Gupta S/o Sh. Surender Gupta R/o 16, Nishant Kunj, Pitam Pura, Delhi FIR No.105/07 U/s 341/308/325/34 IPC PS : Roop Nagar Date of Institution : 31.10.07 Arguments heard on : 17.1.09 Order pronounced on : 17.1.09 *** JUDGMENT Accused Surender Gupta, Tarun Gupta and Divy Gupta have been sent to face trial for the offence punishable under Sec.341/308/325/34 IPC on the basis of the statement made by Sh. Rahul Chaudhary. As per prosecution case the complainant is having his shop of readymade garments in Kamla Nagar. On 18.3.2007 at about 3.30 pm he was going in his 15 Wagon-R No. DL-5C-B-3398 from his shop to his house. On the way one car No. DL-2C-U-6107 came from his front side in which two boys and one elder person were sitting. They stopped their car in the middle of the road due to which his way blocked. He asked the driver of that car to give way but he did not pay any attention. When he again asked the driver of that car to give way, the boys sitting in that car became angry and after getting down from their car, they came near him and started misbehaving. When he objected to their behavior, they started giving beating to him. When he tried to catch those boys to save him, the elder man sitting in that car also came there and caught hold of him and out of those two boys, younger boy started giving fist blows on his face. When he fell on the road, the other boy started giving kick blows and also hit his head on the road due to which he sustained injuries. He was saved by the public persons. Matter was reported to the police and police took him and those two boys to Hindu Rao Hospital where he came to know about their names as Tarun Gupta, Divy Gupta and Surender Gupta. During investigation, accused persons were arrested and after completion of investigation, they were sent to face trial for the offences complained of.

2. After committal of the case to the Court of Sessions, all the four accused persons were charged for the offence 16 punishable under Sec.341/308/34 IPC to which they pleaded not guilty and claimed trial.

3. Prosecution has examined two witnesses in all in support of its case. PW1 Sh. Rahul Chaudhary has stated that on 18.3.2007 at about 3.30 pm he was going in his Wagon-R No. DL-5C-B-3398 from his shop to his residence and when he reached near old Mc Denold Restaurant, Kamla Nagar, there was a heavy traffic and many public persons had collected there and were restraining the passersby and were quarreling. He has also stated that out of them one unknown person also pushed him due to which he fell down on the road and sustained injuries on his head and other parts of my body and became unconscious. Someone took him to Hindu Rao Hospital from where he was referred to Trauma Centre. He has further stated that police came there and made inquiries from him and obtained his signature on a paper. PW1 has admitted his signature on statement Ex.PW1/A but stated that he do not know the contents of Ex.PW1/A as the same was not read over to him before obtaining his signature.

4. As this witness did not support the case of prosecution, he was cross examined at length by ld. Addl. PP for State but without any success. During cross examination, he has denied the suggestion that accused Surender Gupta, Tarun Gupta and 17 Divy Gupta were the persons who caused injuries to him. He has also denied the suggestion that he was deposing falsely to save the accused persons as the matter has been settled with them.

5. PW2 Sh. Joginder Khari has stated that on 18.3.2007 on receipt of an information regarding receiving injuries by his nephew Rahul Chaudhary, he reached the spot and accompanied the police to Hindu Rao Hospital where Rahul Chaudhary was taken for treatment and from there Rahul Chaudhary was referred to Trauma Centre. He has also stated that local police reached Trauma Centre and seized the clothes of Rahul Chaudhary vide memo Ex.PW2/A which bears his signature at point A. He has stated that he did not know who caused injuries to Rahul Chaudhary.

6. As this witness also did not support the case of prosecution, he was cross examined at length by ld. Addl. PP but could not extract anything incriminating against the accused persons. During cross examination, he has stated that neither the police met him nor recorded his statement Mark PW2/A. PW2 has also denied the suggestion that on 18.3.2007 at about 3.30 pm he was present at his shop and on hearing the noise he reached near the chowk where his nephew Rahul Chaudhary was given beatings by accused persons and was saved by the public 18 persons. He has also denied the suggestion that police recorded the statement of Rahul Chaudhary and got registered the case through Ct. Vinod Kumar and later on, on his pointing out site plan was prepared and accused persons were arrested in his presence. He has also denied the suggestion that police seized the car of his nephew Rahul Chaudhary and that of accused persons in his presence.

7. In this case, as the injured i.e. PW-1 Sh. Rahul Chaudhary and the other material witnesses i.e. PW-2 Sh. Joginder Khari have not supported the case of prosecution, no fruitful purpose would have been served by examining other witnesses who are doctors and police officials, hence PE was closed by order of the Court. As nothing incriminating against the accused persons had come on record which could be put to the accused persons, their statement under Sec.313 was CrPC dispensed with.

8. As the evidence adduced by the prosecution does not prove the guilt of accused persons for which they have been charged, all the three accused persons namely Surender Gupta, Tarun Gupta and Divy Gupta are acquitted of the charge. File be consigned to Record Room.

Announced in the open Court ( PRATIBHA RANI ) ASJ-01 (Central)/Delhi 17.1.2009 19 IN THE COURT OF SMT. PRATIBHA RANI, ADDL. SESSIONS JUDGE-01(CENTRAL), TIS HAZARI COURTS, DELHI SC No.28/07 State Vs Jitender @ Ganja, S/o Sh. Raghubir Singh, R/o H. No.A-10, Yadav Enclave, Gali No.5, Murga Wala Chowk, Hastsal Vihar, New Delhi.

FIR No.183/06 U/S : 394/397/34 IPC PS : Patel Nagar Date of Institution : 24.6.06 Arguments heard on : 20.1.09 Order pronounced on : 20.1.09 *** JUDGMENT Accused Jitender @ Ganja has been sent to face trial for committing the offence punishable under Sec.394/397/34 IPC. In brief, the case of the prosecution is that on 25.4.2006 at about 11.30 am accused Jitender @ Ganja alongwith his associates Bittoo, Tinu and Rajesh (not traceable), in furtherance of their common intention, committed robbery at house No.29/95, First Floor, West Patel Nagar, New Delhi and robbed six gold bangles, one gold chain, one pair of gold ear ring (bali), two diamond rings, two gold rings, 1000 Euro, 100 Pound and Rs.9000/- and while committing robbery, they also used deadly 20 weapons i.e. country made pistol and knives. On the basis of statement made by Ms. Poornima Shinde, case FIR No.183/06 was registered at PS Patel Nagar. During investigation, accused Jitender was arrested in this case and after completion of investigation, chargesheet was filed only against him as his associates remained untraceable.

2. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

3. After hearing on the point of charge, accused was charged on 8.11.2006 for the offence punishable under Sec.452/394/34 IPC r/w Sec.397 IPC to which he pleaded not guilty and claimed trial.

4. Prosecution has examined 15 witnesses in all in support of its case. Accused Jitender was also examined under Section 313 CrPC in which he has denied the case of the prosecution. Accused has stated that On 22.4.2006 he was in Delhi to attend the marriage of Sunny @ Sachin, son of his maternal uncle and on 23.4.2006 in the evening time, he went to Bahadurgarh, Haryana to the house of his friend Jyoti and remained there till 26.4.2006. On the night of 25.4.2006 his younger brother Rajeev was lifted by the police to inquire from his brother about him and that he was lifted by the police from Bahadurgarh on 26.4.2006 in the morning and brought to Delhi 21 by SHO, Anand Parbat, SI Jitender Tiwari, two constables and one Home Guard Constable and his mobile with phone No.9818768472 was also taken by the police. He was kept at PS Anand Parbat and was shown to two ladies by the police at PS Anand Parbat telling them that he had confessed about the occurrence. His photographs were also taken in the police station. He also told the police to ascertain from his mobile that he was not in Delhi on the day of occurrence but police did not pay any heed. Thereafter he was brought to PS Patel Nagar. His brother Rajeev was released after he was brought to Delhi by the police. His mother had also telephoned him at Bahadurgarh on his mobile about the arrival of police and taking away of his brother. Accused has examined his brother Sh. Rajiv as DW-1 in his defence.

5. I have heard Sh S.C. Sharma, Addl PP for the State and Sh. R.K. Jain, counsel for the accused and also gone through the record carefully.

6. PW-1 is Ms. Purnima Shinde, the complainant. She has stated that on 16.4.2006 she alongwith her daughter went to her parental house No.29/95, First Floor, West Patel Nagar, Delhi for staying with them. On 25.4.2006 at about 11.00 or 11.30 am her father had gone to the market for some work and she alongwith her mother and child was present at home. At that 22 time, someone rang the bell at the door and she asked as to who was present outside the house and the person standing outside replied that he was a courier man. She opened the door and immediately three persons entered into the house forcibly while one person remained standing outside the house. Out of the three persons entered the house, one person took out a knife and gave knife blow on her person. She tried to save herself with her right arm and in that process she sustained knife injury on her right arm. She raised alarm that also frightened. The second person was having pistol and the third person was also having knife. Thereafter her hands were tied with a rope towards her back side and one person remained caught holding her while the other two persons went towards the side of her mother who was present on the rear side room of the house. She was taken to adjoining room. Her mother was overpowered by two persons and after few minutes, her mother was also brought in the room where she was kept. The person having the pistol pointed the pistol towards her mother and thereafter all the three persons got removed six gold bangles, one gold chain and gold ear rings from the person of her mother. She has further stated that thereafter those persons took search of the house and removed 100 Euro currency, 9000 Indian currency notes, 100 pounds, four gold rings out of which two were of diamond. Thereafter 23 they were brought to the kitchen by those persons and after bolting the door of kitchen from outside, all those four persons ran away with looted articles. She has further stated that meanwhile her father returned back from the market and on seeing their condition, untied them and also informed the police. The police reached the spot and recorded her statement Ex.PW1/A. She was also got medically examined at DDU Hospital. She also pointed out the place of occurrence to the police. The spot was inspected by the police and Crime Team also lifted finger prints from the spot. Her supplementary statement was also recorded by the police. She has further stated that on 1.5.2006 she was called at Tihar Jail for identifying the culprits where she identified the accused Jitender to be the same person who was armed with pistol and pointed the same towards her mother and had removed the ornaments of her mother and the currency notes. She has identified her signature at point-A on the TIP proceedings Ex.PW1/B. However, during cross examination, she has stated that she cannot say whether accused Jitender, present in the Court and seen by her in the Court, was the same persons who came to their house for committing the robbery.

7. PW-4 Smt. Dev Prabha Sharma is the mother of the complainant Ms. Purnima Shinde. She has stated that on 24 25.4.2006 they were residing at 29/95, First Floor, West Patel Nagar, New Delhi. At about 10.00 am her husband had gone to market and she alongwith her daughter Purnima Shinde and her two minor daughters was present at the home. At about 11.10 am, someone pressed the door bell and her daughter went to open the door. On asking who was at the door, she received the reply that the man was from courier services. When she opened the door, three persons entered the house. Two persons were armed with knives and one with pistol and one of them hit on the right hand of Purnima with knife and threatened her not to raise alarm or she would be killed. Thereafter they closed all the doors and windows of the house and tied Purnima with a rope. Then those persons came to the last room where she was present and dragged her to the room where Purnima was tied. One person put pistol on her mouth and thereafter they started searching the house. PW-4 Smt. Dev Prabha has further stated that they also removed her six bangles, ear rings, chain of gold which she was wearing at that time and also took 1000 Euro currency, 100 pounds and Rs.9000/- cash and four rings two of gold and two of diamond from the mandir in their house. She was also given beatings to pressurize her to disclose about the cash lying at home and she asked them to search the entire house. Her hands were also tied and mouth of her grand daughter were also 25 gagged by putting cloth. Thereafter those persons took all of them to the kitchen, opened the gas and bolted the door of the kitchen from the outside and thereafter they all left. She has further stated that after 12.00 noon when her husband returned, he saw the condition of the house and opened the door of the kitchen. He also informed the police. The Police and media arrived at the spot and police conducted the investigation. She has further stated that he had gone to Tihar Jail to take part in TIP to identify the offenders. She did not remember if she had identified the accused in Tihar Jail or not as her eye sight was not good. She has identified her signature at point-B on the TIP proceedings Ex.PW1/B. She has stated that she could not say whether the accused Jitender, present in the Court on that day was the same person who had entered their house alongwith other persons on the day of occurrence and pointed out the pistol on her mouth. During cross examination by ld. Addl. PP for State, she has stated that she did not remember due to lapse of time if she had identified the accused during TIP proceedings in Tihar Jail on 1.5.2006 and that if police officer had recorded her statement after TIP proceedings at Tihar Jail. During cross examination by accused, she had admitted that she alongwith her daughter had gone to PS Anand Parbat for identification purpose but cannot remember whether she had gone to PS for 26 identification purpose on 26.4.2006 at 10.45 am. She has also stated that she cannot say whether accused Jitender was one of the person who committed on that day.

8. PW-5 Sh. Sukhdev Sharma, father of the complainant has stated that on 25.4.2006 at about 11.00 am he had gone to market after leaving his wife, daughter and two grand daughters at the house. When he returned back at about 12.30 pm, he found that the house was latched from outside. When he entered the house after opening the door, the house was found ran saked and he shouted for his family members. He heard very low voice from the kitchen which was locked from outside. After opening the kitchen, he found that his family members were present there and their hands were tied with rope. The mouth of his grand daughters were gagged with cloth. He untied his wife and daughter and also took out the cloth from the mouth of grand daughters. Thereafter they narrated the entire incident to him and he informed the police telephonically. Police also came at the spot and conducted the investigation.

9. PW-2 W/HC Krishna is the Duty Officer who has recorded the FIR on the basis of rukka sent by ASI Rajender Singh through Ct. Narender. She has proved the carbon copy of the FIR as Ex.PW2/A and stated that after registration of the case, further investigation was entrusted to SI R.S. Meena. 27

10. PW-3 Sh. N.K. Sharma, Finger Prints Expert has stated that on 25.4.2006 on receipt of message, he reached the spot i.e. 29/95, First Floor, West Patel Nagar, New Delhi and on the instruction of IO, examined the scene of crime and lifted seven chance prints and developed the same. He has stated that photographs of the chance prints were also obtained by the police photographer. He has proved his report as Ex.PW3/A.

11. PW-5 Ct. Rajinderan Pillai (this witness was also given PW-5) is the Photographer who took seven photographs of the chance prints. He has stated that total negatives were 19 in number and ten photographs were developed from the said negatives.

12. PW-8 Ct. Narinder Kumar remained associated with ASI Rajender during the investigation of the case. He has stated that on receipt of DD No.12-A Ex.PW6/A he alnogwith ASI Rajender went to the spot where Ms. Purnima Shinde and her mother met them. ASI Rajender recorded the statement Ex.PW1/A of Ms. Purnima Shinde and made endorsement Ex.PW6/B on the same and handed over the rukka to him. He went to PS and got the case registered. The further investigation was entrusted to SI R.S. Meena to whom the Duty Officer handed over the copy of FIR and original rukka. PW-8 Ct. Narinder Kumar has further stated that he alongwith SI R.S. 28 Meena reached the spot and at the instance of complainant, SI R.S. Meena prepared the site plan. Crime team was also called and finger prints were lifted from the spot by the crime team. One rope was also seized from the spot vide memo Ex.PW8/A.

13. PW-9 Ct. Dilbagh Singh of Haryana Police was associated by SI R.S. Meena for assistance for taking the search of house No.385, Ward No.11, Daya Nand Nagar. He has stated that search was conducted in his presence vide house search memo Ex.PW9/A but nothing related to this case was recovered from that house.

14. PW-13 Ct. Devender has stated that on 4.5.2006 he alongwith SI R.S. Meena and HC Satish as well as accused went to Bahadur Garh, Sector-9 Police Post from where Ct. Dilbagh of Haryana Police was taken for assistance and thereafter accused led them to a house in Dayanand Nagar in Gali No.2 i.e. the place where he was hiding after the occurrence. Search of that house was taken vide search memo Ex.PW9/A but nothing incriminating was recovered from there.

15. PW-12 SI Jitender Tiwari has recorded the disclosure statement made by accused in case FIR no.184/06 under Sec.25 Arms Act of PS Patel Nagar about his involved in this case i.e. case FIR No.183/06 PS Patel Nagar. He has stated that he handed over the disclosure statement of the accused and other 29 documents to the IO of this case.

16. PW-10 Ct. Sanjeev Kumar is a witness to the arrest of accused Jitender in this case. He has stated that on 26.4.2006 SI Jitender Tiwari handed over the copy of disclosure statement and other documents to SI R.S. Meena who kept the same and made inquiries from accused Jitender. During interrogation, accused confessed his guilt and thereafter accused Jitender was arrested in this case vide arrest memo Ex.PW10/A.

17. PW-14 Sh. Sanjay Khanagwal, Metropolitan Magistrate has conducted the TIP of accused Jitender at Tihar. He has proved the certificate given by him regarding correctness of the TIP proceedings Ex.PW1/B from point-X to X on the same.

18. PW-15 SI Manoj Kumar took the witnesses Smt. Dev Prabha Sharma and Smt. Purnima Shinde to Central Jail, Tihar for TIP proceedings as IO was on leave on that day. He produced the witnesses before the Magistrate and after completion of TIP proceedings, he obtained the copy of the same and recorded the statement under Sec.161 CrPC of both the witnesses to this effect. On return of the IO, he handed over the copy of the TIP proceedings and statement to him.

19. PW-7 Dr. Rishi has examined the injured Ms. Purnima Shinde and prepared her MLC Ex.PW6/C. He has stated that 30 Ms. Purnima Shinde was brought by ASI Rajender Singh and on examination, he found that there was CIW left forearm medical aspect of size 2 X 0.5 X 0.8 cm and punctured wound on left forearm. He has further stated that the nature of injures was simple and that injury No.1 was caused by sharp object while injury No.2 was caused by blunt object.

20. PW-6 ASI Rajender Singh has stated that on 25.4.2006 while he was on emergency duty, on receipt of copy of DD No.12-A Ex.PW6/A, he alongwith Ct. Narinder reached the spot i.e. 29/95, West Patel Nagar, New Delhi on first floor where Ms. Purnima Shinde met them. He recorded her statement Ex.PW1/A and made his endorsement Ex.PW6/B on the same and handed over the rukka to Ct. Narinder who got registered the case at the PS. After registration of the case, further investigation was marked to SI R.S. Meena. He has further stated that Crime Team Photographer and Finger Prints Expert also reached the spot. He also got medically examined the complainant Ms. Purnima Shinde in DDU Hospital and the MLC Ex.PW6/C prepared by the doctor was collected by him and handed over to SI R.S. Meena.

21. PW-11 SI R.S. Meena, the investigating officer has stated that on 25.4.2006 when he returned to the Police Station from High court, the Duty Officer handed over to him the copy 31 of FIR and original rukka for investigation. He alongwith Ct. Narinder went to the spot i.e. 29/95, First Floor, West Patel Nagar, New Delhi where SHO and Inspector (Investigation) and ASI Rajender met him. ASI Rajender handed over to him the copy of DD No.12-A, copy of rukka and also briefed the facts of the case. The complainant Poornima Shinde also met him at the spot and on her pointing out, he prepared the site plan Ex.PW11/A. Thereafter he sent the complainant for medical examination at DDU Hospital alongwith ASI Rajender and also called the crime team at the spot. SI N.K. Sharma of Crime Team inspected the site and lifted seven chance prints from the spot and prepared his report Ex.PW3/A and handed over the same to him. The photographer also took photographs. He also recorded the statement of photographer, SI N.K. Sharma, father and mother of the complainant and supplementary statement of the complainant. One plastic rope was also lying at the spot which was seized by him vide memo Ex.PW8/A. PW-11 SI R.S. Meena has further stated that on 26.4.2006 SI Jitender Tiwari informed him about the disclosure made by accused Jitender @ Ganja and handed over to him the disclosure statement of the accused and statement of witnesses. SI Jitender also produced the accused before him. He made inquiries from the accused and accused confessed his guilt. Thereafter accused Jitender @ 32 Ganja was arrested in this case vide arrest memo Ex.PW10/A. He informed the brother of the accused regarding the arrest of accused and recorded the statement of Ct. Sanjeev who joined the investigation at that time. Next day the accused was produced before the Court. Thereafter he moved an application Ex.Pw11/B for getting the TIP of the accused conducted and the TIP was conducted on 1.5.2006 which was got done by SI Manoj Kumar who obtained the copy of proceedings and handed over the same to him. He has further stated that on 3.5.2006 he obtained two days police custody remand of accused Jitender and the accused led the to Bahadur Garh for arrest of co-accused and recovery of the case property but the same could not be recovered as the co-accused was not traceable at that time. I also prepared the memo Ex.PW9/A of 'khanatalashi' of H.No.14398, Gali No.2, Daya Nand Nagar, Bahadur Garh where the accused persons had taken shelter after the occurrence. On 3.5.2006 the accused Jitender also pointed out the place of occurrence and memo Ex.PW11/D to this effect was also prepared and after completion of investigation, chargesheet was filed by him.

22. DW-1 Sh. Rajiv, brother of the accused Jitender has stated that on the night intervening 24/25.4.2006 at about 3.00 am, 5-4 policemen came to their residence and knocked the door. When the door was opened, they inquired about his brother 33 Jitender and started searching the house. They also took him to PS Patel Nagar and from there, he was taken to PS Anand Parbat. He has further stated that he told the police that his brother Jitender was living with his friend Jyoti in Bahadurgarh and not with them. On 26.4.2006 they took him to Bahadurgarh to the house of Jyoti from where his brother Jitender was arrested and brought to PS Anand Parbat, Delhi. Thereafter his brother Jitender was put in the lock-up and he was released.

23. On behalf of State, it has been contended that the accused has been identified by the witnesses during TIP and in the circumstances, the case of the prosecution against the accused stands proved beyond reasonable doubt and he be convicted for the offences complained of.

24. On behalf of accused Jitender, it has been contended that accused had nothing to do with the robbery committed at the house of the complainant for the reason that accused himself is resident of same area and would not have committed such heinous crime in his neighbourhood as he could have been identified immediately. It has also been submitted that no recovery has been effect from or at the instance of accused and his younger brother was lifted by the police to pressurize him to surrender and after his younger brother got the accused arrested from the house of one Jyoti, friend of the accused, the younger 34 brother was released and accused was falsely implicated in this case after showing his arrest in another case in Arms Act. It has also been contended that the accused Jitender was identified by the witnesses during TIP for the reason that admittedly the accused was shown by the police to the witnesses at the police station to be the persons who committed the robbery and when he was already shown to the witnesses, they could identify him during TIP. Ld. Counsel for the accused has prayed for acquittal of the accused.

25. I have considered the rival contentions and carefully gone through the record. So far as statement of PW-1 Ms. Purnima Shinde, the complainant and PW- 4 Smt. Dev Prabha Sharma is concerned, both of them have deposed before the Court that they cannot identify the accused Jitender @ Ganja to be the same persons who entered their house on the day of occurrence and committed the robbery on pistol and knife point. They have also admitted that they were taken to PS Anand Parbat and shown the accused to be the person who committed robbery at their house. Once it has been admitted by witnesses that before the judicial TIP, the accused was shown to the witnesses in the Police Station, their subsequent identification looses significance especially in view of the fact that during their deposition in the Court, they fail to identify the accused Jitender 35 @ Ganja to be the same persons who entered their house and committed the offence. It has come in the statement of PW-4 Smt. Dev Prabha Sharma that robbers had taken away six bangles, ear rings, chain of gold which she was wearing at that time and also took 1000 Euro currency, 100 pounds and Rs.9000/- cash and four rings two of gold and two of diamond from the Mandir of their house. The robbery had been committed on 25.4.2006 and accused Jitender @ Ganja has been shown arrested in case FIR No.184/06 of the same Police Station i.e. P.S. Patel Nagar at 12.05 pm on the basis of secret information received at 11.50 am while he was allegedly sitting under the tree in Satya Park with dessi katta in suspicious condition. Thus, as per prosecution, the accused had been arrested within 24 hours of committing the robbery at the house of complainant still despite having his police remand for substantial period, not even a pin or penny has been recovered from or at the instance of accused Jitender @ Ganja nor any of his alleged associate has been arrested. Taking into consideration that neither the accused Jitender @ Ganja has been identified by the complainant Ms. Purnima Shinde (PW-1) or by her mother Smt. Dev Prabha Sharma (PW-4) to be the same person who committed the robbery at their house nor any of the robbed article has been recovered from the possession or at the 36 instance of accused Jitender, I am of the opinion that prosecution has not been able to prove its case against the accused beyond reasonable doubt, hence the accused Jitender @ Ganja is acquitted of the charge. Case property be returned to its rightful owner after expiry of period of appeal, if any. File be consigned to Record Room.

Announced in the open Court 20.1.2009 ( PRATIBHA RANI ) Addl. Sessions Judge-01 (Central)/Delhi 37 IN THE COURT OF SMT. PRATIBHA RANI, ADDL. SESSIONS JUDGE-01 (CENTRAL), TIS HAZARI COURTS, DELHI SC No.150/07 State Vs Naeem Qureshi, S/o Sh. Mohd. Yusuf, R/o 695, Dakshini Khala Par, Distt. Muzaffar Nagar, U.P.

FIR No.371/05 Under Sec.186/332/353/307 IPC & 25/27/54/59 Arms Act PS : I.P. Estate Date of Institution : 7.10.05 Arguments heard on : 12.01.09 Order pronounced on : 20.01.09 *** JUDGMENT Accused Naeem Qureshi been sent to face trial for the offence punishable under Sec.186/332/353/307 IPC & 25/27/54/59 Arms Act with the allegations that on the night intervening 10/11.8.05 at about 12.20 am, secret information was received by Ct. Jaswinder of Special Staff that the accused Naeem Qureshi wanted in a case of robbery and murder would be coming on a motorcycle No.UP-6620 from Okhla side to go towards Loni via Wazirabad Pul and in case of raid, he could be apprehended. He conveyed the information to senior officers and a raiding party was organised. SHO, PS Kamla Market was also informed and nakkabandi was done at Ring Road near 38 Rosebud Park and the members of the raiding party started checking the vehicles coming from Okhla side.

2. At about 12.10 am, accused came on the motorcycle from Okhla side and he was signaled to stop but he accelerated the speed of the motorcycle and turned right from the Rajghat Traffic Signal. He was chased by Ct. Jaswinder and Ct. Id Mohd. who managed to surround him near Shiv Mandir. On seeing him being surrounded by the police officials, accused Naeem fired towards the two constables who also fired in air in return to defend themselves and managed to overpower him by using some force and revolver was snatched from him. On inquiry, the name of the apprehended person was confirmed as Naeem Qureshi. The two constables handed over the accused and the revolver before Inspector Rakesh Giri who checked the revolver which was found containing three live cartridges and one fired round. Thereafter necessary proceedings in respect of recovered revolver i.e. preparation of its sketch, keeping the revolver in pullanda and sealing with the seal of RSA and seizing the same, were completed and form FSL was filled in. Accused was interrogated and a case under Sec. 186/332/353/307 IPC & 25/27/54/59 Arms Act was registered against him at PS I.P. Estate. During investigation, case property was sent to FSL for examination and after completion 39 of investigation, chargesheet was filed in the Court.

3. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

4. After hearing on the point of charge, accused was charged on 11.5.2006 for the offence punishable under Sec.186/353/307 IPC and 25/27 Arms Act to which he pleaded not guilty and claimed trial.

4. Prosecution has examined twelve witnesses in all in support of its case. Accused has also been examined under Section 313 CrPC in which he has denied the case of the prosecution and stated that he is innocent and has been falsely implicated in this case. Accused has examined Sh. Mohd. Salim as DW-1 and Sh. Nasir as DW-2 in his defence.

5. I have heard Sh S.C. Sharma, Addl PP for the State and Sh. R.P. Tyagi, counsel for the accused and also gone through the record carefully.

6. PW-1 ASI Attar Singh wasd working as the Duty Officer who recorded the FIR of this case and proved the carbon copy of the same as Ex.PW1/A.

7. PW-2 Ct. Rajesh Kumar took the case property i.e. one sealed pullanda sealed with the seal of RSA to FSL, Rohini vide RC no.69/21 and after depositing the same there, on return handed over the receipt to MHC(M). He has stated that so long 40 the pullanda remained in his custody, the same was not tampered with.

8. PW-4 HC Suresh Kumar was working as MHC(M) at PS I.P. Estate at the relevant time. He has stated that on 11.8.2005 ASI Mansab Ali of Special Staff, Kamla Market deposited one sealed pullanda sealed with the seal of RSA alongwith FSL form, one motorcycle No.UP-15-S-6620 and personal search articles of the accused regarding which he made entry at serial No.1944. He has further stated that on 15.9.2005 Ct. Rajesh Kumr took the sealed pullanda to FSL, Rohini and on return, handed over the receipt to him. He has stated that till the case property remained in his custody, the same was kept in safe custody and nobody tampered with it in any manner. He has proved the copy of the relevant entries and RC as Ex.PW4/A and Ex.PW4/B.

9. PW-5 HC Samuel Lakra was working as MHC(M) at PS I.P. Estate on 10.10.2006 on which date case property and FSL result was deposited by Ct. Rajbir regarding which he made relevant entry in the register. Thereafter he sent the result to Special Staff, Kamla Market through Ct. Rajinder with direction to him for handing over the same to the IO of the case. He has proved the photocopy of the relevant entries as Ex.PW5/A and Ex.PW5/B.

41

10. PW-6 Sh. Surender Singh Yadav, Addl. DCP, Central District has accorded the sanction for prosecution of the accused under Arms Act. He has proved the sanction order as Ex.PW6/A.

11. PW-12 Dr. M.M. Oberoi has made the complaint under Sec.195 CrPC against accused Naeem Qureshi and proved the same as Ex.PW12/A and list of witnesses as Ex.PW12/B.

12. PW-8 ASI Mansab Ali has stated that on 24.8.2005, further investigation of this case was transferred to him. During further investigation, on 15.9.2005 the pullanda was sent to FSL, Rohini through Ct. Rajesh Kumar and also recorded his statement to this effect and filed the chargesheet in the Court.

13. PW-9 HC Satya Narain and PW-10 Ct.Yunis Khan have proved the true copy of the DD entry No.16 regarding receipt of secret information by Ct. Jaswinder and DD No.18 regarding departure of raiding party as Ex.PW9/A and B respectively.

14. Pw-3 Ct. Jaswinder Singh is the material witness who received the secret information pursuant to which raiding party was constituted and accused was apprehended. He has stated that on 10.8.2005 while he was posted in Special Staff, Central District and was present in his office at Kamla Market, he received secret information that one boy involved in robbery- 42 cum-murder at Asaf Ali road would come on black colour motorcycle No.UP-6620 from Okhla side to go to Loni via Ring Road Wazirabad. He conveyed this information to Inspector Rakesh Giri who further informed the ACP and SHO, PS Kamla Market and it was also recorded vide DD no.16. Raiding party was organised by Inspector Rakesh Giri and at about 9.30 pm some members left the Special Staff office in private vehicle i.e. Maruti Car of Inspector Rakesh Giri while he alongwith Ct. Id. Mohd. left on motorcycle No.DL-3S-AM-3047. They reached near Raj Ghat Rosebud Park. On reaching there, they found SHO Kamla Market was also present with his staff alongwith government vehicle No.DL-1C-E-4074. Thereafter under the joint supervision of Inspector Rakesh Giri and Inspector Ajit Singh - SHO, PS Kamla Market, a raiding party was organised. Some passers-by were requested to join the proceedings but none agreed and left without telling their names and address. At about 10.30 pm, nakkabandi was done and they started checking the vehicles passing from there. At about 12.10 am one motorcycle was seen coming from Okhla side and SI Ranbir Singh signaled the same with torch to stop but the motorcyclist crossed the spot, took right turn and reached near back side of Power Station, Yamuna Pusta near Shiv Mandir. He alongwith Ct. Id Mohd. chased the motorcyclist who took out a pistol and 43 fired upon them. Thereafter he and Ct. Id. Mohd. while defending themselves fired in the air and before the accused fired again, both of them apprehended the motorcyclist and took his pistol. By that time, other members of the raiding party also reached there and he produced the accused and the recovered pistol before SI Ranbir Singh. Thereafter the pistol was checked by SI Ranbir Singh and he took out one used cartridge, prepared the sketch Ex.PW3/A and kept the same in a cloth parcel, also filled FSL form and thereafter seized the pullanda vide memo Ex.PW3/B. Thereafter he and Ct. Ct. Id. Mohd. also produced empty cartridge fired by them in the air in defence from the service revolver and pistol which were also seized vide memo Ex.PW3/C and D and seal after use was handed over to him.

15. PW-3 Ct. Jaswinder has further stated that SI Ranbir Singh prepared the rukka and handed over the same to Ct. Id. Mohd. who got the case registered at the PS. After registration of the case, Ct. Id. Mohd. returned to the spot and handed over the copy of the FIR and original rukka to SI Ranbir Singh for further investigation. SI Ranbir Singh prepared the site plan at the instance of Ct. Id. Mohd and motorcycle No.UP-15-S-6620 was also seized vide memo Ex.PW3/E. Accused was arrested vide memo Ex.PW3/F and his personal search was conducted vide memo Ex.PW3/G. Thereafter accused was brought to PS 44 I.P. Estate and case property was deposited in the malkhana. Accused was also interrogated and he made disclosure statement Ex.PW3/H. Accused also pointed out the spot at Asaf Ali Road where robbery and murder was committed by him and a memo Ex.PW3/J was prepared in this regard. Accused was got medically examined and sent to lock-up. He has identified the revolver Ex.P1 and the cartridges Ex.P2 to be the same which were recovered from the accused. He has also identified the motorcycle Ex.P4 seized in this case and empty cartridges Ex.P3 to be the same which were fired by him and Ct. Id. Mohd. and seized in this case.

16. PW-7 Ct. Id. Mohd. has also deposed about the receipt of secret information by Ct. Jaswinder Singh regarding the accused who was wanted in a robbery and murder case and organising a raiding party by Inspector Rakesh Giri of Special Staff and joining SHO, PS Kamla Market and apprehension of the accused after exchange of fire. He has also identified the case property i.e. the revolver Ex.P1 and the cartridges Ex.P2 to be the same which were recovered from the accused, motorcycle Ex.P4 to be the same which was seized in this case and also the empty cartridges Ex.P3 to be the same which were fired by him and Ct. Jaswinder in self defence and seized in this case.

17. PW-11 SI Ranbir Singh has also deposed to the effect 45 that on 10.8.2005 at about 7.00 pm Ct. Jaswinder received secret information which was conveyed to Inspector Ranbir Singh and reduced into writing vide DD No.16 and as per direction of ACP, Operation Cell, Inspector Ajit Singh, SHO PS Kamla Market was informed and raiding party was constituted under their supervision. He has also deposed that after the raiding party reached the Rosebud Restaurant, SHO PS Kamla Market alongwith other staff also reached there and Inspector Rakesh Giri and Inspector Ajit Singh briefed the members of the raiding party. Efforts to join the public persons could not succeed and at about 10.30 pm barricades were put on the road for checking the traffic coming from Okhla side. At about 12.00 am (midnight), one motorcycle No.UP-15-S-6620 was seeing coming from the side of Okhla and he gave signal to the motorcyclist to stop but instead of stopping the motorcycle, the motorcyclist accelerated the speed and took turn from Rajghat traffic point and ran towards Power House side. All the members chased the motorcyclist and Ct. Jaswinder managed to stop the motorcyclist by putting his motorcycle in front of said motorcycle near a mandir on which the motorcyclist took out a revolver and fired towards Ct. Jaswinder and Ct. Id. Mohd. and in self defence, both of them also fired. He has further stated that when the motorcyclist again tried to fire on both the constables, Ct. Id. 46 Mohd. overpowered the motorcyclist and Ct. Jaswinder took the revolver from his hand. In the meantime, other members also reached there and Ct. Id. Mohd. produced the motorcyclist i.e. accused Naeem Qureshi before him alongwith the revolver snatched from his hand by Ct. Jaswinder. He checked the revolver and it was found containing three live cartridges and one fired cartridge. All the four cartridges were taken out and revolver and the cartridges were measured and its sketch Ex.PW3/A was prepared. Thereafter the revolver and the cartridges were kept in the pullanda and sealed with the seal of RSA, form FSL was filled in and thereafter the pullanda was seized vide memo Ex.PW3/B. He also prepared the rukka Ex.PW11/A and handed over the same to Ct. Id. Mohd. who got the case registered at the PS. He has further stated that motorcycle of the accused was also seized by him vide memo Ex.PW3/E and empty cartridge case which were fired by Ct. Id Mohd. and Ct. Jaswinder were seized vide memo Ex.PW3/C and Ex.PW3/D. He also prepared the site plan Ex.PW11/B. Thereafter the accused was arrested vide arrest memo Ex.PW3/F and his personal search was conducted vide memo Ex.PW3/G. Accused was also interrogated and he made disclosure statement Ex.PW3/H. The accused also pointed out the road in front of a park near B.K. Rai Court and Vardhman Building to be the place 47 where robbery was committed by him and pointing out memo Ex.PW3/J was prepared by him in this regard. Thereafter further investigation of this case was handed over to ASI Mansab Ali. He has also identified the revolver Ex.P1 and cartridges Ex.P2 to be the same which were recovered from accused, fired cartridges Ex.P3 to be the same which were produced by Ct. Jaswinder and Ct. Id. Mohd. and seized by him in this case.

18. DW-1 Sh. Mohd. Salim, brother of the accused Naeem Qureshi has stated that he work as Mistri at Kasba Rohru, Himachal Pradesh. On 6.8.2005 his brother i.e. accused Naeem Qureshi was with him at Kasba Rohru near Petrol Pump, Shimla, Himachal Pradesh and that his brother Naeem was living with him from one month prior to 6.8.2005. He has further stated that on 6.8.2005 at about 11.30 or 12.00 noon some police officials of Delhi Police in two cars came there and asked about his brother Naeem. He told them that Naeem was taking tea in the adjacent tea stall. Thereafter they went there with him and apprehended his brother Mohd. Naeem with Mohd. Nasir and Chand. He has further stated that the Delhi police officials were in two cars and one Constable was Mohamdam and another was Sikh of Delhi Police. Thereafter he took Baby Bhai, owner of Tea Stall and went to PS Rohru and lodged a report there about the apprehension of his brother Naeem, Chand and Nasir. The 48 police officials did not give copy of the DD entry to him. He has further stated that day before yesterday (his statement was recorded on 18.7.08) he went to PS Rohru to take copy of that report but the police refused to give the copy to him. He has further stated that later on he came to know that his brother Naeem has been falsely implicated in this case by showing his arrest on 10.8.2005 from Delhi and released Nasir and Chand after three days from PS Kamla Market. The police also took his antecedents and prepared his identity card after about one month. He has proved the photocopy of his identity card as Ex.D1.

19. DW-2 Sh. Nasir has stated that he knew accused Naeem Qureshi as his younger brother Mohd. Salim used to work with him as two-wheeler mechanic in Rohru, Distt. Shimla, Himachal Pradesh. On 6.8.2005 during lunch time at about 2.00 pm, Mohd. Salim was on the ground floor and he alongwith accused Naeem Qureshi was taking lunch on the upper floor. At that time some persons in two cars came there and lifted him and accused Naeem Qureshi from there and brought them to PS Kamla Market at Delhi in a TATA Qualis and they were detained there upto 14.8.2005. Accused Naeem was kept separately from him on 8.8.2005 and later on he came to know that accused Naeem Qureshi was involved in this case.

20. On behalf of State, it has been contended by ld. Addl. 49 PP that from the statement of police officials i.e. PW-3 Ct. Jaswinder, PW-7 Ct. Id. Mohd. and PW-11 SI Ranbir Singh, it stands proved that accused obstructed the police officials who were standing there after putting barricades to apprehend the accused about whom information was received. It is also proved that when he was signaled to stop, instead of stopping his motorcycle, he accelerated the speed and tried to escape from there and not only that he also fired towards the chasing police officials and hence, the case against the accused stands proved beyond reasonable doubt and he be convicted for the offences complained of.

21. On behalf of accused, Sh. R.P. Tyagi, Advocate has filed the written submissions wherein it is mentioned that the entire case of the prosecution is false. There are material contradictions in the statement of prosecution witnesses. It has been contended that no public witness has been joined in this case and also the number of the motorcycle cannot be read when the headlight of the motorcycle is ON because number plate is just under the headlight. It has been further contended that no helmet has been seized in this case though as per PW-7 Ct. Id. Mohd., accused was wearing helmet at that time and it further shows that the alleged motorcycle was not used by the accused on that day and the prosecution even could not prove the 50 ownership of the said motorcycle. It has been further contended that accused Naeem Qureshi and DW-2 Sh. Nasir were picked up by the police officials of Special Staff on 6.8.2005 from Kasba Rohru, near Petrol Pump, Shimla where his brother Salim was residing and they were brought to PS Kamla Market as he was allegedly involved in murder and robbery case of PS Kamla Market. They were illegally detained in PS Kamla Market for four days and then fabricated a false story of encounter and planted a country made revolver on him and also fabricated disclosure statement pointing out memo regarding that murder case in collusion with police officials of PS Kamla Market. He has further contended that the statement of defence witnesses i.e. DW-1 Mohd. Salim and DW-2 Sh. Nasir is also supported by PW-9 HC Satya Narain who brought the Roznamcha of Special Staff and during cross examination, when question "as to whether there is any departure and arrival entry in the Roznamcha in respect of SI Ranbir, Ct. Jaswinder and Ct.Id Mohd. on 4.8.2005, 5.8.2005 and 6.8.2005" was put to him, he replied that there is an entry in respect of Ct. Id. Mohd. only on 4.8.2005 at about 11.20 am, which shows that they were not in Special Staff office on 4.8.2005, 5.8.2005 and 6.8.2005 after 11.20 am onm 4.8.2005. Ld. Defence counsel has further contended that in the circumstances that no independent public 51 witness has been joined and all the police officials being interested witnesses, none of them had received any injury in the alleged firing, the entire story is concocted and accused be acquitted.

22. I have considered the rival contentions. In the instant case, in his statement under Sec.313 CrPC, the accused has simply denied the case of prosecution claiming that he is innocent and falsely implicated in this case. However, the two defence witnesses i.e. DW-1 Mohd. Salim and DW-2 Sh. Nasir produced by accused to prove that he was brought from Kasdba Rohru near Petrol Pump, Shimla, Himachal Pradesh by the police and falsely implicated in this case could not be supported from any document. Although DW-1 Sh. Mohd. Salim, brother of the accused has stated that he had gone to PS Rohru and lodged the report there about the apprehension of accused Naeem alongwith Chand and Nasir but such record from PS Rohru has been produced to prove this defence. No complaint to any Court or higher police authorities by DW-1 Mohd. Salim or DW-2 Sh. Nasir either at the time when accused Naeem was taken away or when DW-2 Nasir was released by the police from the alleged illegal confinement has been produced on record despite the fact that DW-2 Sh. Nasir claims that he was detained by the police from 6.8.2005 to 14.8.2005. At least 52 DW-2 Sh. Nasir could have recourse to legal remedy for his alleged illegal detention for about 8 days but neither there is any complaint by him for keeping him in illegal custody for 8 days nor about alleged false implication of accused Naeem in this case till the date of their appearance in this Court as defence witness. So there testimony without any supporting document cannot be relied upon.

23. So far as testimony of PW-3 Ct. Jaswinder Singh, PW-7 Ct. Id. Mohd. and PW-11 SI Ranbir Singh is concerned, they were not known to the accused prior to the date of occurrence and had absolutely no enmity towards him which could be a motive for them to falsely implicate him in this case. It is also relevant to mention here that in the instant case, secret information has also been received by Ct. Jaswinder Singh and not by the IO. It was only on the basis of secret information that accused Naeem was apprehended after midnight after chasing him for sufficient distance and the accused Naeem Qureshi even fired towards Ct. Jaswinder and Ct. Id Mohd. who were chasing him on motorcycle and thereby he not only obstructed the police officials, who were public servants, in discharge of their duties to apprehend the persons on the wrong side of the Law but also used criminal force i.e. by firing towards them to deter them from discharging their duty i.e. to nab the offender for whom 53 nakkabandi was done. The act of firing towards the police party by the accused to facilitate his escape also satisfy the ingredients of Sec.307 IPC when accused even did not hesitate to fire towards the chasing police officials to deter them from apprehending him. So far as contradictions pointed out by ld. Defence counsel in the written submissions filed on behalf of the accused are concerned, no doubt there are some contradictions in the testimony of police officials but it is not each and every contradiction which can help the accused in seeking acquittal but only those material contradictions which go to the root of the case and are sufficient to prove that the prosecution case is false. In my view the contradictions appeared on record are only such contradictions which may appear in the testimony of any natural witness and they are bound to occur for the reason that due to lapse of time, the memory of the witness fades. In State of U.P. vs. M.K. Anthony, AIR 1985 SC 48 following guidelines have been laid down by the Apex Court for the appraisal of the evidence :

"While appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole, appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, draw backs and infirmities, pointed out in the evidence as a whole and evaluate them to find out whether, it is against the general tenor of the evidence given by the witness and whether the 54 earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies of trivial matter, not touching the core of the case, hypertechnical approach by taking sentence torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of evidence as a whole."
Their Lordships further observed :
"unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention, and reproduction differ with individuals. Cross-examination is an unequal dual between the rustic and refined lawyer."

The contention of ld. Defence counsel that no independent witness has been joined and testimony of police official cannot be believed to base the conviction of the accused as they are interested in success of their case, cannot be accepted for the reason that accused Naeem Qureshi has failed to point out any previous acquaintance or hostility with any of the police official who was member of the raiding party. The accused has been apprehended by members of Special Staff and no suggestion has been given to them that they had any previous enmity with the accused which could be a reason for them to falsely implicate the accused not only in this case but also in a murder case. In the case Raj Singh Vs. State of Haryana and 55 Anr. 2002 (3) CCC 1 (P&H) while dealing with this aspect i.e. relying on the testimony of police official to base the conviction, the Apex Court, in para 16 of the judgment, has held as under :-

"16. We have not to go by the ipse dixit of the prosecution witnesses. We have to consider the worth of their testimony on the touch stone of human probabilities. Why should DSP Mukhtiar Singh and SI Maharaj Singh PWs have deposed against the accused when there is no animus disclosed against them. We cannot ignore the stark realities of life. In every criminal case, there is a tug of war which goes on between the accused and the prosecution, accused trying to win over witnesses; prosecution trying to see that they support the prosecution and do not resile."

24. In the instant case, the testimony of PW-3 Ct. Jaswinder Singh, PW-7 Ct. Id. Mohd. and PW-11 SI Ranbir Singh is consistent regarding the manner in which the accused was apprehended and attempt by the accused to deter them from apprehending him and even to commit murder of members of the raiding party by firing towards them to facilitate his escape. The statement of these prosecution witnesses is sufficient to prove the case of the prosecution beyond reasonable doubt, hence, accused Naeem Qureshi is held guilty for the offence punishable under Sec.186/353/307 IPC and 25/27 Arms Act and convicted accordingly.


Announced in the open Court

20.1.2009                            ( PRATIBHA RANI )
                                     ASJ-01(Central)/Delhi




                                56
         IN THE COURT OF SMT. PRATIBHA RANI,
         ADDL. SESSIONS JUDGE-01 (CENTRAL),
              TIS HAZARI COURTS, DELHI

SC No.150/07

State                 Vs       Naeem Qureshi,
                               S/o Sh. Mohd. Yusuf,
                               R/o 695, Dakshini Khala Par,
                               Distt. Muzaffar Nagar, U.P.

                               FIR No.371/05
                               Under Sec.186/332/353/307 IPC
                               & 25/27/54/59 Arms Act
                               PS : I.P. Estate

                               Arguments heard on : 22.01.09
                               Order pronounced on : 22.01.09

                               ***
ORDER ON SENTENCE

I have heard the convict Naeem Qureshi on the point of sentence. Sh. S.C. Sharma, ld. Addl. PP for the State has also made submissions.

2. It has been submitted by the convict that he has been in custody since the date of his arrest in this case and that after recording his disclosure statement in this case, he was also booked in murder case though he is innocent and was brought by the police from Rohru, Himachal Pradesh alongwith one Nasir who was released but he was falsely implicated in two cases. He has prayed for lenient view.

3. On behalf of State, Sh. S.C. Sharma, ld. Addl. PP has 57 contended that taking into consideration that the convict is involved in number of criminal cases in Delhi and U.P. and in the instant case also, he fired towards the members of the raiding party. Ld. Addl. PP has contended that exemplary punishment may be awarded to the accused.

4. Taking into consideration the entire facts and circumstances of the case, the convict Naeem Qureshi is sentenced to undergo rigorous imprisonment for three months for the offence punishable under Sec.186 IPC. Convict Naeem Qureshi is also sentenced to undergo rigorous imprisonment for two years for the offences punishable under Sec.353 IPC. Taking into consideration that no police official was hurt in the firing, convict Naeem Qureshi is also sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1000/- for the offences punishable under Sec.307 IPC. In default of payment of fine, he shall undergo simple imprisonment for one month. Since a desi revolver was also recovered from the possession of the convict which was used by him for unlawful purpose i.e. for firing on the police party to escape from there, he is further sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1000/- for the offences punishable under Sec.25/27 Arms Act. In default of payment of fine, he shall undergo simple imprisonment for one 58 month. All the sentences shall run concurrently. The period of detention already undergone by the convict during investigation/trial of the case, if any, shall be set off under Sec. 428 CrPC. Case property shall be confiscated to the State after the expiry of period of appeal, if any. File be consigned to Record Room.


Announced in the open Court

22.01.2009                           ( PRATIBHA RANI )
                                     ASJ-01(Central)/Delhi




                                59
      IN THE COURT OF SMT. PRATIBHA RANI,
   ADDL. SESSIONS JUDGE, TIS HAZARI COURTS,
                    DELHI
SC No.292/07

State                 Vs       Manish Kumar @ Munna @
                               Raman Kumar Maggo,
                               S/o Sh. Trilok Nath, @
                               Trilok Chand @ Tilak Raj
                               Maggo,
                               R/o C-20, Majeetha Road,
                               Gopal Nagar, Amritsar,
                               Punjab.

                               FIR No.430/07
                               U/S : 363/376/506 IPC
                               PS : Patel Nagar

                               Date of Institution : 21.9.07
                               Arguments heard on : 19.1.09
                               Order pronounced on : 22.1.09
                               ***
JUDGMENT

Accused Manish Kumar has been sent to face trial for committing the offence punishable under Sec.363/376/506 IPC. In brief, the case of the prosecution is that on 25.7.2007 at about 8.30 pm complainant Sh. Jai Narain Dubey came to the police station and informed about the missing of his daughter (name of the prosecutrix withheld to conceal her identity) aged about 13 years which was recorded vide DD No.42-A and marked to SI Jitender Tiwari for necessary action. When the girl did not return till next day, her father Sh. Jai Narain Dubey, apprehended kidnapping and on 26.7.2007 came to the Police 60 Station and made statement Ex.PW1/A on the basis of which case FIR No.430/07 PS Patel Nagar was registered. As per complaint Ex.PW1/A his daughter, aged about 13 years, had gone to bring her younger brother Nitin from the school at about 5.00 pm and she had not returned home and his son Nitin was dropped home by somebody from the school and that he apprehended that his daughter had been kidnapped by some person. During investigation, on the basis of information given by Sh. Vinod Kumar Tiwari, the raid was conducted and the kidnapped girl was recovered from the room of accused Manish Kumar and accused Manish was arrested. She was sent for medical examination and her statement under Sec.164 CrPC was also got recorded. After completion of the investigation, chargesheet was filed against accused Manish Kumar for the aforesaid offences.

2. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

3. After hearing on the point of charge, accused was charged on 10.10.2004 for the offence punishable under Sec.363/376/506 IPC to which he pleaded not guilty and claimed trial.

4. Prosecution has examined 17 witnesses in all in support of its case. Accused Manish Kumar was also examined 61 under Section 313 CrPC in which he has denied the case of the prosecution. Accused has stated that he was asked by the police officials of PS Ashok Vihar and Shalimar Bagh to come to the police station every week and as he did not go regularly and started living at Faridabad and that he was falsely implicated in this case at the instance of informer Vinod Kumar Tiwari whom he got employed at Faridabad. Accused Manish has examined Sh. Sudhir Dua and Sh. S.C. Dua as DW-1 and DW-2 in his defence.

5. I have heard Sh S.C. Sharma, Addl PP for the State and Sh. Ranvir Singh, Amicus Curaie for accused. Accused has also filed written submissions. I have also carefully gone through the record carefully.

6. PW-1 is Sh. Jai Narain Dubey, the complainant and father of the prosecutrix. He has stated that in the month of July, 2007 his daughter aged about 12 years had gone to School to bring her younger brother Nitin from the school at about 5.00 pm but she did not reach the school or returned home. His son Nitin was brought home by school people. Thereafter he continued searching for his daughter and when he could not find her, he lodged the complaint with the police, carbon copy of which is Ex.PW1/A. After lodging of the report also, he continued searching for his daughter. Then next day at about 62 11.00 pm he received a telephonic call from one Vinod Tiwari from Faridabad who inquired about his name and the name of his daughter and thereafter told him (PW-1) to meet him at about 1.00 pm next day and that his daughter would be found by him. He has further stated that subsequently he came to know that his daughter remembered the telephone number of Sh. Amar Nath Mishra, her maternal uncle who was contacted from Faridabad who gave his (PW-1) number and he was contacted. Sh. Vinod Kumar also informed that his daughter was in the house of Gyan Chand at Fatehpur, Chandila Village, Faridabad where he was also residing as tenant. He has further stated that he informed the SHO who called him next morning to make the necessary planning. Next day he alongwith the police officials reached the STD Booth from where the telephone call was received and thereafter on reaching that house, the owner of the said house namely Gyan Chand led them to the room of accused Manish Kumar where he was found sleeping and his daughter was fetching water. The police brought his daughter and the accused to the police station and in the PS, police recorded his statement and the statement of his daughter. Thereafter his daughter and the accused were got medically examined at DDU Hospital and police also seized the clothes of his daughter which she was wearing at that time. PW-1 Sh. Jai Narain Dubey has further 63 stated that on 31.8.2007, at the instance of his daughter, the police also prepared the site plan of the place where she was raped and also recovered.

7. PW-2 is Sh. Amar Nath Mishra, maternal uncle of the prosecutrix who accompanied the complainant and the police party to Faridabad from where the prosecutrix as recovered. He has stated that on 26.7.2007 he received a telephone call on his mobile phone No. 9871858468 from one Vinod Kumar, who was calling from PCO, and asked him to give the telephone number of Jai Narain Dubey, father of prosecutrix. He asked Sh. Vinod Kumar about the purpose of asking the number but he did not disclose the purpose. He gave the telephone number of Jai Narain Dubey to Sh. Vinod Kumar. Prosecutrix was missing since 25.7.2007 and later on Jai Narain told him that prosecutrix was in the house of Gyan Chand in Faridabad. He has further stated that next day he alongwith his brother-in-law Jai Narain went to PS Patel Nagar and from there, they alongwith police staff went to Faridabad and first they went to PCO from where telephone call was made and then to the house of Gyan Chand after taking the address from the person present at PCO who furnished the address after seeing the directory. After reaching that house they saw that in the courtyard there was a hand pump and rooms were constructed around that courtyard. Prosecutrix 64 was found taking water from the hand pump and accused was also present in that house. Thereafter accused as well as the prosecutrix were brought from Faridabad to PS Patel Nagar.

8. PW-3 - the prosecutrix was minor and her statement was recorded after testing her understanding by putting questions. The prosecutrix has stated that on 25.7.2007 at about 5.00 pm she was going to the school of her younger brother Nitin to bring him home. When she was on her way to school, near Satyam cinema, the uncle i.e. accused Manish Kumar (she pointed out towards the accused referring him as uncle) caught her from her hand. She asked him to leave her but he did not leave her and took her to one side and pressed her throat and threatened to kill in case she raised alarm. She got frightened and thought that if she raise alarm, he would definitely kill her. Then the accused took her on foot to Metro Station and she was brought to New Delhi Railway Station in Metro and then he took her by train to Faridabad. She has further stated that in Faridabad the accused took her to his house and by that time it was night and time could be 8.00 or 9.00 pm. She found one 'Bhaiya' aged about 18 years in that house. She has further stated that at his house during night time, the accused sucked her breast and kissed her both cheek. Next day during day time, the accused removed her salwar and he also removed his clothes and rubbed 65 his penis on her private part and the dirty water which came out of his penis entered her private part and thereafter she was made to sleep. She has further stated that again during night time, the accused sucked her breast, kissed her cheek and rubbed his penis on her private part. During day time, the 'Bhaiya' was on duty and during night time he was on the roof. Thereafter the accused asked her to take food but the vegetable lying at home was not good to eat so he went outside to bring vegetable. When the accused was away to bring vegetable, she was weeping and at that time, the 'Bhaiya' asked her as to why she was weeping when she has come to her Papa i.e. accused. She has further stated that while accused was taking her to Faridabad, he was pressing her that if she did not address him as 'Papa', he would kill her so she was very much afraid of him. Then she told the 'Bhaiya' that he was not her Papa and that uncle has forcibly brought her there. Then that 'Bhaiya' asked from her about her address and telephone number if any, so that he could inform her parents and they could come to take her back. She has further stated that she could remember only the number of her 'Mama' Sh. Amar Nath Mishra and told him that number as 9871858468. Then that Bhaiya telephoned her 'Mama' and obtained the number of her Papa and telephoned him. That Bhaiya informed her in the morning that he had informed her parents about her 66 and they would come and take her back and thereafter he left. In the afternoon accused took her to a small hotel for taking meal and after taking food, they came home. Then accused asked her to fill water in a bucket and when she was filling the water, three uncles came and later on she came to know that they were police officers. They inquired from her about the relationship between her and the accused and because of the threat given by the accused, she referred him as her Papa. She has further stated that one Sikh uncle took her to some distance and asked her to tell correctly the relationship with the accused and whether she had been brought from Baljit Nagar by the accused to which she said 'Yes'. Thereafter those three uncles caught the accused and they also told her that they have brought her father and maternal uncle alongwith them and she told them to bring her father and her father, who was standing on the road, was called through phone to that place. Her father came and on the asking of police, he took her to the vehicle and accused was also brought by other two police officials and they all came to PS Patel Nagar. She has further stated that at PS Patel Nagar, she was asked about the occurrence and she also made statement. There was one lady police officer who took her case and also took her to the hospital where she was medically examined. From there they returned to the police station and again some questions were asked from her 67 and thereafter she was allowed to go home. The prosecutrix has further stated that on 31st of the same month the lady police officer came to her house and she alongwith that lady police officer went to Faridabad following the same route and contacted the landlord. The lady police officer asked some questions from him and recorded his statement and the landlord also informed that accused had done similar act earlier also with a lady. Then one Aunty was called by the landlord and her statement was also recorded. Thereafter the lady police officer prepared the site plan and then they returned to Delhi. She has further stated that she was also brought to the Court where her statement Ex.PW3/A was recorded by Judge Uncle and that on the day she was medically examined, the police officer obtained another pair of clothes from her house and the clothes which she was wearing at that time were seized by her.

9. PW-4 Sh. Vinod Kumar Tiwari has stated that he knew the accused Manish Kumar as he (PW-4) was taken by him (accused) from Faiz Road, Karol Bagh to his house in Faridabad in the second week of July, 2007 on the pretext of getting him some job. That house in Faridabad was owned by one Gyan Chand and accused was residing as tenant in that house. He has further stated that on 25.7.2007 the accused brought one little girl to the room and on his asking about the said girl, the accused 68 told that she was his daughter. During night time, accused sent him to sleep on the roof while the accused alongwith the girl remained in the room. On the next day, accused had gone to the market to bring some articles. The girl was weeping and on his asking, she told him that she was resident of Delhi. She also told her name as well as her father's and mama's (maternal uncle's) name and also gave him the mobile number of her Mama Sh. Amarnath which she remembered. He telephoned on that mobile number from nearby STD and asked from the person who attended the call as to whether he was Mama of that girl and when he said 'yes', he (PW-4) asked Sh. Amarnath to give him the number of Jai Narain Dubey, father of that girl. Then he telephoned father of that girl on the number given by Amarnath and asked from him whether his daughter was missing and when he said 'yes', he informed Sh. Jai Narain Dubey that his daughter was in the house of Gyan Chand situated at Fatehpur Chandela, Faridabad since 25.7.2007. He has further stated that on 27.7.2007, while he was away on his duty and returned in the evening, he found nobody was present in the room. In the meantime, Gyan Chand, the owner came and told him that Manish and that girl had been taken by the police.

10. PW-8 Sh. Gyan Chand, is the landlord of the accused. He has stated that he knew accused Manish Kumar as he was his 69 (PW-8) tenant. He let out one room to the accused on monthly rent of Rs.700/- on 23.6.2007. The accused paid Rs.200/- as advance and remaining he assured to pay after earning something. He has further stated that earlier the accused was staying alone and thereafter the accused brought one girl whose name he did not remember and one boy, who was claimed by the accused to be his nephew (Bhatija). The accused brought the girl after about 15 days of taking the room on rent and the girl was also claimed by him to be his Beti and Bhatiji (niece). PW-8 Sh. Gyan Chand has stated that once another lady tenant complained that accused tried to tease her before this case and that on the day of arrest of accused, 4-5 police officials came there and inquired from him whether any person has brought some girl. Initially he could not answer as the girl brought by the accused was very small but after sometime, he told the police about one very small girl brought by the accused. At that time, that small girl was filling water from the water tap. Father of that girl was also with the police. Thereafter the girl and the accused were taken by the police and his statement was also recorded by the police.

11. PW-17 Smt. Prem Sheila, another tenant at the house of PW-8 Sh. Gyan Chand where accused was also one of the tenant, has stated that she became tenant in May and accused 70 became tenant in July one year ago (her statement was recorded on 2.12.2008). In the month of July, she was sleeping on the roof alongwith her daughter Ragani and her husband was sleeping at some distance. The accused was also sleeping on the same roof and that accused came near them and sat near their feet. She woke up and on seeing the accused sitting close to them, her husband abused him and thereafter accused ran away from there.

12. PW-5 Ct. Rajinder Kumar took the case property i.e. four sealed parcels to FSL, Rohini vide RC No.165/21 and after depositing the same there, on return he handed over the receipt to the MHC(M). He has stated that so long the puallandas remained in his custody, nobody tampered with them.

13. PW-6 HC Satish was working as MHC(M) at the relevant time. He has stated that on 28.7.2007 SI Jitender Tiwari deposited four sealed parcels i.e. three parcels duly sealed with the seal of CMO, DDU Hospital and one parcel duly sealed with the seal of JT alongwith copy of one seizure memo, regarding which entry was made in register at serial No.3431. He has further stated that on 17.8.2007 he sent all the four pullandas to FSL, Rohini vide RC No.165/21 through Ct. Rajinder. He has proved the relevant entries in the malkhana register and RC as Ex.PW6/A and B and stated that so long the pullandas remained 71 in his custody, nobody tampered with them.

14. PW-9 HC Jai Chand is the Duty Officer who recorded the FIR in this case. He has proved the copy of the FIR as Ex.PW9/A and endorsement made by him on the rukka as Ex.PW9/B.

15. PW-12 Ct. Triveni has stated that on 27.7.2007 she was called by SI Jitender Tiwari in the police station. ASI Raj Bahadur produced a girl and accused Manish Kumar and stated that the girl was recovered from the custody of accused from a room at Faridabad. The girl was taken into custody and a memo to this effect was prepared. Thereafter accused and the recovered girl were taken to DDU hospital for medical examination and after their medical examination, the doctor handed over sealed parcels which were seized in his presence.

16. PW-10 Sh. R.S. Sharma, TGT, Sri Guru Arjun Dev Secondary School, Shadipur has been examined to the prove the date of birth the prosecutrix. He has stated that as per school record the date of birth of prosecutrix is 18.4.1996 and proved the certificate issued by Vice Principal and other documents as Ex.PW10/A (collectively).

17. PW-11 Sh. Nagesh Kumar is the Finger Prints Expert. He has stated that on 10.9.2007 he received one finger print slip of Manish Kumar S/o Sh. Trilok Chand, R/o C-20, Mazitha 72 Road, Gopal Nagar, Amritsar, Punjab in case FIR no.430/07 PS Patel Nagar which was got searched in the Finger Prints Record and found to be identical with the finger prints of Raman Kumar Mango @ Raman Kumar @ Manish Kumar S/o Sh. Tilak Raj @ Sh. Tilak Raj Mango @ Sh. Tilak Chand, R/o House no.125, Shalimar Bagh, New Delhi and that he was having three convictions. He has given his report Ex.PW11/A in this regard on the reverse of Finger Prints Slip.

18. PW-14 Dr. Shweta Gambhir has medically examined the prosecutrix and proved her MLC as Ex.PW14/A which contains her report from point-X to X.

19. PW-15 Sh. P.S. Malik, Addl. Sessions Judge has recorded the statement under Sec.164 CrPC ExPW3/A of the prosecutrix after questioning the prosecutrix to satisfy himself about her capability as a witness and that she was making statement of her own free will and her.

20. PW-7 SI Jitender Tiwari is the Investigating Officer. He has stated that on 26.7.2007 complainant Jai Narain came to PS and got recorded his statement Ex.PW1/A regarding kidnapping of her minor daughter. He made his endorsement Ex.PW7/A on the statement Ex.PW1/A and produced the same before Duty Officer and got the case registered. Thereafter he alongwith the complainant Jai Narain reached Baljeet Nagar 73 where inquiries were made about the missing girl but no clue was found at that place. Thereafter he returned to PS. He has further stated that on 27.7.2007 complainant and his relatives came to PS and informed that they had received a telephonic message from Vinod Tiwari from Faridabad about the presence of the missing girl at Faridabad. He informed the detailed facts of the case to the SHO and also produced the complainant and his relatives before him. Then the SHO sent ASI Raj Bahadur and other police staff with complainant and his relatives to Faridabad. On the same day in the evening, ASI Raj Bahadur alongwith his staff and complainant and their relatives came to PS with the girl as well as accused Manish Kumar and produced them before SHO. Then he made inquiries from the recovered girl and also interrogated the accused Manish Kumar. Thereafter accused Manish Kumar was arrested and his personal search was also conducted vide memo Ex.PW7/C. Accused also made disclosure statement Ex.PW7/D. He also prepared the recovery memo Ex.PW7/E and thereafter the recovered girl was sent for medical examination with W/ASI Sushil and accused Manish Kumar was sent for medical examination through Ct. Triveni. After medical examination of prosecutrix, W/ASI Sushil handed over sealed pullanda with sample seal to him which was seized vide memo Ex.PW7/F. He has stated that before sending the 74 prosecutrix for medical examination, he seized the wearing clothes of the girl i.e. salwar, suit after keeping the same in cloth pullanda and sealed with the seal of JT vide memo Ex.PW7/G. After medical examination of accused, Ct. Treveni also produced before him two sealed pullanda alongwith sample seal handed over to him by the doctor at the hospital which were seized vide memo Ex.PW7/H. Case property was deposited in the malkhana and statement of witnesses was recorded by him. During investigation, Sec.376 IPC was added after receiving the medical examination report and thereafter investigation was transferred to W/ASI Sushil. He has identified the clothes Ex.P1 of the prosecutrix to be the same which were seized by him.

21. PW-13 ASI Raj Bahadur is a witness to the recovery of prosecutrix from Faridabad. He has stated that on 27.7.2007, Sh. Jai Narain Dubey had got recorded his statement regarding missing of his daughter and informed SI Jitender Tiwari that his daughter was at Faridabad in the house of Gyan Chand at Village Fatehpur Chandela. He was directed by SI Jitender Tiwari to go to Faridabad and he alongwith two constables and complainant Sh. Jai Narain Dubey went to Faridabad. They reached STD booth at Faridabad Railway Station from where telephonic call was received by the family of prosecutrix. Hehas further stated that from the STD Booth they came to know the 75 address of Gyan Chand and thereafter they reached the house of Gyan Chand where Gyan Chand met them. On inquiry about the missing girl after giving her description, Gyan Chand informed that his tenant Manish was having a girl matching with the description. When they were in the house of Gyan Chand, the prosecutrix was found fetching water and she was identified by her father Sh. Jai Narain Dubey. The accused was found lying in his room. The girl was recovered and the accused was apprehended and brought to PS Patel Nagar and produced before SI Jitender Tiwari. The girl was recovered vide memo Ex.PW7/E and accused was interrogated and arrested vide memo Ex.PW7/B and his personal search was conducted vide memo Ex.PW7/C. Accused also made disclosure statement Ex.PW7/D. SI Jitender Tiwari also recorded the statement under Sec.161 CrPC of the prosecutrix.

22. PW-16 W/ASI Sushil has stated that on 27.7.2007, on the direction of the IO SI Jitender Tiwari, she got medically examined the prosecutrix in DDU Hospital and collected her MLC Ex.PW14/A and pullanda of vaginal swab slides alongwith sample seal of the hospital were also handed over to her by the doctor which she handed over to IO SI Jitender Tiwari who seized the same vide memo Ex.PW7/A. The prosecutrix had also produced her clothes after removing from her body which 76 were also kept in pullanda and sealed with the seal of JT by SI Jitender Tiwari and seized the same vide memo Ex.PW7/G. She has further stated that on 28.7.2007 the further investigation of this case was entrusted to her and she moved application Ex.PW16/A for recording statement under Sec. 164 CrPC of the prosecutrix in the Court of Ms. Archana Sinha, the then MM which was adjourned for 30.7.2007. On 30.7.2007 she again moved an application Ex.PW16/B before the Court and got recorded statement under Sec. 164 CrPC Ex.PW3/A of the prosecutrix. She also obtained the copy of the statement by moving application Ex.PW16/C. Thereafter statement under Sec.161 CrPC of the prosecutrix was recorded by her. PW-16 W/ASI Sushil has further stated that on 17.8.2007, the exhibits were sent to FSL, Rohini through Ct. Rajender and later on results Ex.PX and PY were collected and filed in the Court vide her application Ex.PW16/D. On 20.8.2007 she also collected the certificate Ex.PW10/A from the school in respect of date of birth of the prosecutrix alongwith photocopy of record of previous school. On 31.8.2007 site plan Ex.PW16/E of the place where prosecutrix was kept and rape was committed, was prepared by her at the instance of prosecutrix. She also recorded statement of witnesses Sh. Gyan Chand and Smt. Prem Sheela and supplementary statement of the prosecutrix. She has further 77 stated that on 10.9.2007 she collected the previous record of the accused and proved the list of previous cases in which accused was involved as Ex.PW11/A and photocopy of the dossier as Mark-PW16/A and that after completion of investigation, chargesheet was filed. She has identified the clothes Ex.P1 (Collectively) of the prosecutrix to be the same which were seized in her presence.

23. On behalf of State, it has been contended that from the statement of PW3 - the child victim, PW-1 Sh. Jai Narain Dubey

- her father and PW-2 Sh. Amar Nath - her maternal uncle, it stands proved that she was recovered from the room of the accused at Faridabad where she had been kept. Ld. Addl. PP for State that further contended that from the statement of PW-8 Sh. Gyan Chand, it stands proved that accused was occupying the room in his property and from the statement of PW-4 Sh. Vinod Kumar Tiwari it is further proved that how he came to know about the child victim being brought by the accused and kept for immoral purposes and it was only because of timely information given by this person that she could be rescued. Ld,. Addl. PP for State has further contended that in view of the statement of the material prosecution witnesses which is fully corroborated and supported by the police officials who accompanied the complainant to the house of the accused and recovered the child 78 victim as well as from the MLC, the case of the prosecution stands proved beyond reasonable doubt, hence accused be convicted.

24. On behalf of accused, Sh. Ranvir Singh, Amicus Curaie has contended that the entire prosecution story is false and accused Manish had nothing to do with the child victim nor she was recovered from his room. He has further contended that PW-4 Sh. Vinod Kumar Tiwari was police informer and that accused was asked by the police officials of PS Ashok Vihar and PS Shalimar Bagh to visit the police station every week and as the accused did not attend the police station regularly and started living in Faridabad, he was falsely implicated in this case at the instance of Sh. Vinod Kumar Tiwari who was police informer and was got employed by accused in Faridabad. It has been further contended by ld. Defence counsel that the statement of PW-4 Sh. Vinod Kumar Tiwari or other public witnesses is not reliable at all in the circumstances and further that the child victim has not stated about the penetration, hence no case of rape is made out against the accused Manish Kumar. It has also been contended that though the defence witnesses i.e. DW-1 Sh. Sudhir Dua and DW-2 Sh. S.C. Dua did not depose that Sh. Vinod Kumar Tiwari was got employed by the accused in their factory but atleast it can be inferred that defence of the accused 79 is probable and he has been falsely implicated in this case for his failure to attend the PS Ashok Vihar and PS Shalimar agh for which the police has used the services of informer and got him falsely implicated in this case. It has also been contended that the mobile call details record of father and maternal uncle of the prosecutrix also does not support the case of prosecution, hence accused be acquitted of the charge.

25. I have considered the submissions made by Sh. S.C. Sharma, Addl. PP for State and Sh. Ranvir Singh, Amicus Curaie for the accused. In the instant case, the statement of PW-3 - the child victim is most crucial to give a finding regarding her kidnapping and sexual assault by the accused. It is not disputed that accused was a total stranger for the child victim and her family and she had absolutely no grievance against him so as to depose against him during trial of this case or while making statement under Sec.164 CrPC. She has categorically mentioned about the manner in which she was taken away by the accused when she was going to bring her younger brother from his school and even during evidence she was referring to the accused present in the Court on that day as 'Uncle'. She has clearly mentioned all the circumstances in which she could not raise alarm and compelled to follow the direction of the accused silently as she feared for her life. She has also very specifically 80 mentioned about the role of one Bhaiya (PW-4 Sh. Vinod Kumar Tiwari) to whom she gave the number of her maternal uncle so that he family could be contacted and that in order to avoid public attention, the accused compelled her to address him as 'papa' but in the room he had been sexually abusing her till her recovery. Her statement is supported and corroborated by Pw-1 Sh. Jai Narain Dubey - her father, PW-2 Sh. Amar Nath - her maternal uncle and PW-4 Sh. Vinod Kumar Tiwari. The statement of the members of the raiding party regarding recovery of child victim from the room of the accused and the fact that that particular room was in the tenancy and occupation of the accused further stands proved from the statement of PW-8 Sh. Gyan Chand, the landlord who had not only seen the child victim in the room of the accused but also stated that the police came and rescued that girl. Although in cross examination suggestions were given to PW-8 Gyan Chand regarding documentary proof of the tenancy of accused in that room which he denied and stated 16 rooms have been let out to different persons, it cannot be ignored that the accused himself prayed in the Court by moving separate application about taking over of possession of the room by PW-8 Sh. Gyan Chand so that he is not made to pay any rent for further period.

26. From the statement of child victim, it stands proved 81 that it was the accused Manish Kumar who had kidnapped her when she was going to bring her brother back from the School and she was also threatened not not raise alarm. The child victim was aged about 12/13 years and yet to attain the puberty. As per MLC, breast not formed and only tip of little finger could be inserted through intreitus and there were small abrasions inside of right lasia minora and a small scab 1 cm X 0.5 cm on right posterior amicular region. There is no mention on the MLC that hymen was torn or there was penetration. As per the child victim, the accused sucked her breast, kissed her cheek and rubbed his penis on her private part and that the dirty water which came out of his penis entered her private part. At the time of medical examination of the prosecutrix, two slides of vaginal smear were prepared and handed over to ASI Sushil. The CFSL report Ex.PX regarding Ex.1a and 1b i.e. two microslides having faint whitish smear shows that human smear was detected on Ex.1a and Ex.1b.

27. Now it is to be seen that whether from the MLC and statement of the child victim, case proved against the accused is under Sec.376 IPC or it is a case of attempt to rape only. In the case Madan Lal Vs. State of J & K (197) 7 SCC 677, the Apex Court has distinguished between preparation and attempt to commit an offence and in what circumstances, it can be said that 82 the offence proved is an attempt to commit rape. In the above noted case, the contention of the appellant was that in the absence of penetration into vagina, the offence of rape cannot be said to have been established and it will not be possible to hold that the accused had attempted to commit rape on the prosecutrix and that at the most it would amount to an offence of indecent assault under Sec.354 IPC. Rejecting the contention of ld. Counsel for the appellant, it was held by the Apex Court in para 11 and 12 of judgment as under :-

"11. .......We are unable to accept this contention. Since if the evidence of the prosecutrix is to be believed, and we do believe the same, the offence committed cannot but be held to be one of attempt to commit rape. The prosecutrix's evidence clearly establishes the fact that the accused spread the blanket on the floor and forcibly laid her on the blanket and thereupon the said accused forcibly opened the cord of the salwar of the prosecutrix and kept it apart and then forcibly rode upon her and on that point of time caught hold of her head with one hand and closed her mouth with the other and had kept his penis qua her uterus and was doing something and then the accused was trying to penetrate his penis but it did not penetrate and had gripped his penis with his hand and was rubbing it against her uterus which he was doing by jumping.
12. The difference between preparation and an attempt to commit an offence consists chiefly in the greater degree of determination and what is necessary to prove for an offence of an attempt to commit rape has been committed is that the accused has gone beyond the stage of preparation. If an accused strips a girl naked and then making her lie flat on the ground undresses himself and then forcibly rubs his erected penis on the private parts of the girl but fails to penetrate the same into the vagina and on such rubbing ejaculates himself then it is difficult for us to hold that 83 it was a case of merely assault under Section 354 IPC and not an attempt to commit rape under Section 376 read with Section 51 IPC. In the facts and circumstances of the present case the offence of an attempt to commit rape by the accused has been clearly established and the High Court rightly convicted him under Section 376 read with Section 511 IPC."

In another case Koppula Venkat Rao Vs. State of Andhra Pradesh AIR 2004 SC 1874, the Apex Court has dealt with the three situation for committing an offence i.e. the preparation, attempt and the commission of the offence. In paras 10, 11 and 12 of the judgment, the Apex Court has held as under :-

"10. An attempt to commit an offence is an act, or a series of act, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Sec.511 clearly shows the legislative intention to make a difference between the cases of a mere preparation and an attempt.
11. In order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In 84 order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.
12. The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. ...."

28. In the instant case also, the statement of the child victim is to the effect that accused rubbed his penis and ejaculated. She has not deposed about penetration and in the circumstances, the evidence of the child victim is sufficient to prove that attempt to commit rape was made by the accused hence he is liable to be held guilty for the offence punishable under Sec.376/511 IPC.

29. In the instant case, the child victim had been recovered by the police in the presence of her father and maternal uncle from the house of the accused. The circumstances leading to the information of her presence at the house of the accused and subsequent raid by the police party stands proved from the statement of PW-4 Sh. Vinod Kumar Tiwari, PW-8 Sh. Gyan Chand and PW-17 Smt. Prem Sheila. Although in statement under Sec.313 CrPC, the accused has denied the entire case of the prosecution but it cannot be ignored that the accused himself surrendered his tenancy by moving application before the Court so that the landlord could take over the possession of the room 85 after keeping his goods at some other place and he may not go in arrears of rent for the period he is in J/C. The testimony of the child victim is natural and nowhere she has exaggerated the incident right from the stage when she was taken away by the accused till she was recovered by the police. She has clearly mentioned the circumstances in which she could not dare raise the alarm as she feared for her life but whenever she got the opportunity she communicated to Sh. Vinod Kumar Tiwari (PW-4) so that her parents could come to know where she had been kept. The contention of ld. Defence counsel that she did not tell the number of her father but of maternal uncle thus doubting the entire prosecution story has no effect on the merits of the case as in routine a person does not dial own number but remember the number of relations to contact them and that is why she appeared to be remembering the number of her maternal uncle through whom father could be informed. The two defence witnesses i.e. DW-1 Sh. Sudhir Dua and DW-2 Sh. S.C. Dua examined by the accused could neither identify him nor testify that Sh. Vinod Kumar Tiwari was got employed with them by the accused at any point of time. So the examination of these two defence witnesses could not be of any help to the accused.

30. Law is well settled that no corroboration is required to base the conviction in cases of rape as the statement of the rape 86 victim is sufficient to base the conviction if it is reliable and trustworthy. The statement of child victim in the present case is natural and trustworthy who gave details of almost all the events in sequence right from the stage of kidnapping till she was recovered and it does not suffer from any infirmity at all. The child victim or her family were not even known to accused or Sh. Vinod Kumar Tiwari (PW-4) and they had absolutely no motive to falsely implicate the accused in this case. The missing report and FIR for kidnapping were lodged by father of the child victim and subsequently she was recovered from the possession of the accused who sexually assaulted her and even neighbourers have been joined during the investigation of this case who fully supported the case of prosecution. The child victim had been cross examined at length by nothing could faze her and she is proved to be a reliable and honest witness with no exaggeration about whatever happened with her.

31. In view of the above discussion, accused Manish Kumar @ Munna @ Raman Kumar Maggo is held guilty for the offence punishable under Sec.363, 376/511 and 506 IPC and convicted accordingly.


Announced in the open Court

22.01.2009                          ( PRATIBHA RANI )
                                    ASJ-01(Central)/Delhi




                               87
        IN THE COURT OF SMT. PRATIBHA RANI,
     ADDL. SESSIONS JUDGE, TIS HAZARI COURTS,
                      DELHI

SC No.292/07

State                Vs       Manish Kumar @ Munna @
                              Raman Kumar Maggo,
                              S/o Sh. Trilok Nath, @
                              Trilok Chand @ Tilak Raj
                              Maggo,
                              R/o C-20, Majeetha Road,
                              Gopal Nagar, Amritsar,
                              Punjab.

                              FIR No.430/07
                              U/S : 363/376/506 IPC
                              PS : Patel Nagar

                              Arguments heard on : 28.1.09
                              Order pronounced on : 28.1.09

                              ***
ORDER ON SENTENCE

I have heard the convict Manish Kumar on the point of sentence. It has been contended that it is a case of false implication and he is in J/C since the date of his arrest. He has prayed for lenient view.

2. Sh. S.C. Sharma, Addl. PP has also made submissions on behalf of State. Ld. Addl. PP has submitted that criminal antecedents of the convict were verified by the police before filing the chargesheet and a dossier was prepared at PS Ashok Vihar in respect of this convict showing his involvement in other cases i.e. FIR No.417/92 under Sec.363/354, 376/511 88 IPC, PS Mangol Puri; FIR No.263/92 under Sec.363/354/376/511 IPC, PS Shalimar Bagh; FIR No.652/92 under Sec.363/366/376/326 IPC PS Rajouri Garden; FIR No.404/92 under Sec.364/302/201 IPC PS Ashok Vihar and FIR No.126/89 under Sec.397/356/411 IPC PS Janak Puri. Ld. Addl. PP has further submitted that it appears that during all these years right from his involvement in such cases of sexual assault from the year 1992, he has not improved till date, hence a deterrent sentence should be awarded to him.

3. I have considered the submissions made on behalf of the accused as well as by Ld. Addl. PP for State. Although the prosecution has not proved any previous conviction of the accused but his dossier placed on record shows that accused had been involved in five cases out of which four cases pertaining to sexual assault. This case is also of kidnapping of a little innocent female child who was made to accompany the convict under the threat to kill her if she raise alarm. While keeping her confined in the room in his tenancy, on the one hand the convict was making her to address him as 'papa' introducing her as his 'beti/bhatiji' and on the other hand he was sexually abusing her. How traumatic the experience could be for a little girl aged about 12-13 years to get her cheeks kissed, breast, which were yet to be formed, sucked and penis rubbed on her private part from the 89 person who was aged about 50 years, with no guts to raise alarm as she feared for her life. The act of convict was gruesome and abhorring leaving a permanent scar on the child thus obstructing her growth as a healthy human being and brooding a sense of shame and guilt throughout her life for something for which she could not be blamed. In cases of kidnapping of child coupled with sexual abuse and that too by a person who appears to be habitual offender cast a duty on the Court to award adequate punishment so that atleast at this age i.e. 50 years it can have some deterrent effect on him.

4. Considering the entire facts and circumstances of the case, convict Manish Kumar is sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1000/- for the offence punishable under Sec.363 IPC. In default of payment of fine, he shall undergo simple imprisonment for one month. Convict Manish is also sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- for the offence punishable under Sec.376/511 IPC. In default of payment of fine, he shall undergo simple imprisonment for six months. He is also sentenced to undergo rigorous imprisonment for one year for the offence punishable under Sec.506 IPC. All the sentences shall run concurrently. The period of detention already undergone by the convict during investigation/trial of the 90 case, if any, shall be set off under Sec. 428 CrPC. Case property shall be confiscated to the State after the expiry of period of appeal, if any. File be consigned to Record Room.


Announced in the open Court

28.1.2009                           ( PRATIBHA RANI )
                                    ASJ-01(Central)/Delhi




                               91
           IN THE COURT OF SMT. PRATIBHA RANI,
        ADDL. SESSIONS JUDGE, TIS HAZARI COURTS,
                         DELHI

SC No.272/07

State                  Vs      Sahin Saifi @ Kasim,
                               S/o Sh. Mazhar,
                               R/o Shahpur Gate,
                               Mohalla Chauhatta,
                               PS Kotwali, Meerut, U.P.

                               FIR No.9/06
                               U/S : 186/353/307 IPC &
                               U/s 25/27 Arms Act.
                               PS : Special Cell

                               Date of Institution : 5.4.2006
                               Arguments heard on : 21.1.09
                               Order pronounced on : 27.1.09

                               ***
JUDGMENT

Accused Sahin Saifi @ Kasim has been sent to face trial for committing the offence punishable under Sec.186/353/307 IPC & U/s 25/27 Arms Act. The case of the prosecution is that on 7.2.2006 HC Rakesh Tomar alongwith SI Sajjan Singh, SI V.N. Jha, HC Dev Dutt, HC Bijender Rathi, HC Devi Dayal, Ct. Sunder Gautam, Ct. Pankaj Sharma, Ct. Sanjay Kumar, Ct. Sukhbir, Ct. Ravinder Singh and accused Salim @ Allahdiya who was on police remand, was present in Trans Yamuna Area near Sonia Water Plan, Brij Puri, Delhi in connection with investigation of case Fir No.7/06 under 92 Sec.411/471 IPC and u/s 25 Arms Act. At about 6.15 pm HC Rakesh Tomar received secret information that Sahin @ Kasim wanted in murder of Deepak in Dwarka and other cases of murder, attempt to murder, dacoity, robbery, chain snatching in Delhi and Meerut would come in front of Ambedkar College on main Wazirabad Road, Delhi at about 7.30 pm to meet one of his associate and that he was also carrying illegal arms. This information was discussed with SI V.N. Jhan and other senior officers and 6-7 passers-by were requested to join the raiding party after disclosing the facts to them but they left giving genuine excuses. Then without wasting further time, SI V.N. Jha briefed all the team members and took position near Ambedkar College on main Wazirabad Road at about 7.00 pm and vehicles were parked at safe location. At about 7.35 pm, a person was seen coming on foot from Loni Goal Chakkar and the informer and accused Salim @ Allahdiya identified that person to be Sahin @ Kasim. On sensing police presence, accused Sahin tried to escape and when HC Rakesh Tomar and Ct. Sunder Gautam, after disclosing their identity, were moving forward to overpower and apprehend him, instead of surrendering, he took out his revolver and fired indiscriminately towards the police party and in self defence, Ct. Sunder Gautam fired one round from his service pistol and managed to 93 apprehend him with the help of HC Rakesh Tomar. The revolver was unloaded and four live cartridges of .32 mm and two fired cartridges were found in the chamber. After completing necessary proceedings in respect of the recovered weapon, it was sealed and seized and accused was interrogated. During investigation, ASI Rishi Pal took the documents and the case property from HC Rakesh Tomar and prepared the site plan, recorded the statement witnesses, deposited the case property in Malkhana and subsequently it was sent to CFSL, Chandigarh for examination and verification. It was verified that the recovered revolver was being No.22748 on its butt and details of the purchaser were revealed as Raisuddin, S/o Sh. Islamuddin R/o 25, State Bank Colony, Hapur Road, Meerut, U.P. Complaint under Sec.195 CrPC was also filed and sanction under Sec.39 Arms Act for prosecution of the accused under Arms Act was obtained. After completion of investigation, chargesheet was filed against the accused for the aforesaid offences.

2. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

3. After hearing on the point of charge, accused was charged on 15.11.2006 for the offence punishable under Sec.353/186/307 IPC and 25(1)(a)/27 Arms Act to which he pleaded not guilty and claimed trial.

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4. Prosecution has examined 17 witnesses in all in support of its case. Accused Sahin @ Saifi was also examined under Section 313 CrPC in which he has denied the case of the prosecution. Accused has stated that he was earlier involved in one or two cases in which he has been acquitted. Thereafter to keep him involved in crime, he was falsely implicated in this case after arresting him from Modi Nagar, UP but he was shown to have been arrested from Delhi and that FAX message was sent by Sh. Sumit Chaudhary, Advocate from Meerut to this effect. Accused has examined Mohd. Afsar, his maternal unle as DW-1 in his defence.

5. I have heard Sh S.C. Sharma, Addl PP for the State and Sh. V.P. Lathwal, Amicus Curaie for the accused and also gone through the record carefully.

6. PW1 ASI Krishan Pal is the Duty Officer and he has proved the copy of FIR No.9/06 as Ex.PW1/A. PW2 Ct. Vijay Pal Singh from PS Lasedi Gate, Meerut has proved the copy of FIR No.180/05 under Sec. 394 IPC, PS Lasedi Gate as Ex.PW2/A. PW3 Sh. Rahisuddin has stated that on 14.6.2005 a dacoity had taken place at his house in which apart from cash and jewellery, his licenced revolver was also robbed for which he reported the matter to PS Lasedi gate, Meerut but the revolver could not be recovered by the police officials. He has further 95 stated that on 21.3.2006 he received an information from Special Cell, Lodhi Colony, New Delhi regarding recovery of his revolver from the person apprehended by Special Cell. He came to Special Cell, Lodhi Colony alongwith photocopy of his licence of revolver and receipt which were seized by the Special Cell vide memo Ex.PW3/A. He has also produced in the Court the receipt and original licence, copies of which re Ex.PW3/B and Ex.PW3/C. He also identified the revolver shown to him in the Court to be the one looted from his house. PW6 Sh. Chander Prakash, Supervisor, Fieldgun Factory, Kalpi Road, Kanpur has stated that he had seen the details Ex.PW6/A of the purchaser of the revolver bearing No.22748 on its butt and revolver No.20448 and licence No.625/April-03/Meerut and the same were given by Sh. Rajiv Kumar, the then Joint General Manager who stands transferred from the said factory. PW6 identified the signature of Sh. Rajiv Kumar at point A. He has stated that he had also seen the photocopy of receipt issue and expense voucher bearing No.P/231695 dated 18.6.2003 in the name of Raisuddin S/o Sh. Islamuddin, 25 State Bank Colony, Hapur Road, Meerut which is Ex.PW3/B and was issued by the then General Manager, Fieldgun Factory Kanpur.

7. PW10 HC Sant Kumar took the sealed parcel to CFSL, Chandigarh vide RC No.23/21 and deposited the same there and 96 on return handed over the receipt to MHC(M). He has stated that so long the sealed parcel remained in his custody, it remained intact. PW11 Sh. Ajay Kumar, DCP (PCR) has stated that on 3.4.2006 he was working as DCP, Special Cell and after perusing the material placed before him i.e. FIR, statement of witnesses recorded under Sec. 161 CrPC, seizure memo, CFSL report and other evidence on record, he accorded sanction Ex.PW9/C under Section 39 Arms Act to prosecute the accused Sahin Saifi @ Kasim @ Parvez S/o Majhar R/o Shahirpir Gate, Mohalla Chohatta, PS Kotwali, Meerut, UP who was found in possession of one .32 bore revolver alongwith four live cartridges and two misfired cartridges from near Ambedkar College, Main Wazirabad Road, Delhi on 7.2.2006 at about 7.35 pm in contravention of Sec.3 of Arms Act.

8. PW12 Sh. Sanjeev Kumar Yadav, ACP, Special Cell has stated that on 30.3.2006 he was working as ACP, NDR, New Delhi. ASI Rishi Pal briefed him about the facts of this case and as the accused had obstructed the police officials while they were performing their duties as public servant and had also fired upon the police party with the intention to kill police officials, he, being the superior officer of the above police officials, filed a complaint u/s 195 CrPC in the Court of ld. CMM, Delhi, copy of which is Ex.PW9/B bearing his signature at point A and the list 97 of witnesses attached with the said complaint is Ex.PW12/A bearing his signature at point A.

9. PW13 ASI Mahipal Singh has stated that on 18.7.2005 he was working as Incharge, General Store/KOT in Special Cell. Ct. Sunder Gautam was issued one pistol bearing No.1621-2057, butt No. 5175 with 10 cartridges and on 8.2.2006 the said constable deposited the pistol alongwith nine cartridges explaining that one cartridge was used in case FIR No.9/06 dated 7.2.2006 of PS Special Cell, Lodhi Colony. He has also proved the relevant entries in this regard as Ex.PW13/A.

10. PW14 ASI Paramjit Singh has stated that on 7.2.2006 he was working as MHC(M) at Spl. Cell, Lodhi Colony. On that day ASI Rishi Pal Singh handed over to him two sealed parcels, one parcel sealed with the seal of RK and another with the seal of RPS alongwith copy of seizure memo, form FSL and personal search of accused Sahin Saifi which he deposited in the malkhana and made entry in register No.19 at Sl. No.783. He has also stated that on 28.2.2006 one sealed parcel sealed with the seal of RK alongwith form FSL and other documents were sent to CFSL, Chandigarh through HC Sant Kumar vide RC No.23/21. The other five live cartridges were also sent for testing in case FIR No.8/06 and 9/06 regarding which he made entry against Sl. No.783. He has further stated that on 6.11.2006 98 one sealed envelope sealed with the seal of Chemistry, CFSL, Chandigarh was deposited by ASI Ashok Kumar in the malkhana about which also he made entry against the said Sl. Number in register No.19. On 30.5.2008 one sealed parcel sealed with the seal of CFSL, Chandigarh which was allegedly containing the cartridges was received through Ct. Udham Singh which he deposited in the malkhana and made entry in the register No.19 against the said entry. This witness has proved the photocopy of the extract of relevant entries as Ex.PW14/A and of RC as Ex.PW14/B. He has stated that so long the case property remained in his custody it remained intact.

11. PW15 Sh. Mukesh Kumar, Arms Alerk, District Magistrate Office, Meerut, UP has stated that he has brought the summoned record i.e. record regarding applying for licence of revolver and issuance of the revolver to Rahisuddin S/o Sh. Islamuddin R/o 25, State Bank Colony, Hapur Road, PS Lisadi Gate, Meerut, U.P. and after issuance of licence to Rahisuddin, he had purchased one .32 bore revolver NP bore bearing No.FG.20448 (IOF i.e. Indian Ordinance Factory) on 18.6.2003. He has stated that Rahisuddin had informed about the purchase of the said revolver in the office and had also produced the photocopy of the bill of purchase of the said revolver. This witness has proved the photocopies of the relevant entry in the 99 register as Ex.PW15/A, photocopy of the application submitted by Rahisuddin as Ex.PW15/B and of the bill as Ex.PW3/B.

12. PW16 Sh. Deepak Middha, Sr. Scientific Officer, CFSL, Chandigarh has stated that he joined CFSL, Chandigarh in May, 1990 and since then he had analysed and reported thousands of forensic exhibits related to different crime cases. He has stated that the present case forwarded by DCP (Crime & Railways), Delhi was internally forwarded by the Ballistic Division of CFSL, Chandigarh to him for restoration of alleged tampered and erased identification number of the exhibits i.e. .32 mm revolver and report thereby. PW16 has stated that scientific methods were used to restore the original number and the serial number of the revolver was finally restored which read as '22748' and manufacturer of .32 mm revolver was identified as IOF N.P. The emblem/monogram were also restored in the restoration process. He has stated that he prepared his report giving all the relevant case and examination details as Ex.PW9/F bearing his signature at point-A on all the three pages.

13. PW17 Sh. Bhanu Pratap Singh, Jr. Scientific Officer (Ballistics), CFSL, Chandigarh has stated that on 28.2.2006 one sealed cloth parcel duly intact as per the specimen seal was received in the office of CFSL, Chandigarh in case FIR No.9/06, PS Special Cell from DCP (C&R), Delhi through HC Sant 100 Kumar which was marked to him for examination and opinion. He opened the parcel which was found containing one .32 inch revolver, two fired .32 inch S&WL (Smith & Wason Ltd.) and four .32 inch S&WL revolver cartridges which were marked by him as A, C/1 to C/2 and L1 to L/4 respectively. He has proved his detailed report dated 31.3.2006 as Ex.PW9/B. PW17 has further stated that on examination, he found that exhibit A i.e. revolver was found erased for serial number and other markings and on opening its grip plate, the number 22748 was found embossed on the metallic part of the grip, the revolver Mark-A was found in working condition and the cartridges mark L/1 to L/4 were test fired and were found to be live. The two fired cartridge cases mark-C/1 and C/2 had been fired through the said revolver Mark-A and the same could not have been fired through any other fire arm because every fire arm has its own individual characteristics marks. He has further stated that the .32 inch revolver mark-A had been sent to Chemistry division for restoration of erased mark. PW17 has identified the revolver as Ex.P1 and four fired cartridge cases and two fired cartridge cases collectively exhibited as Ex.P3.

14. PW-7 HC Rakesh Tomar, has stated that on 7.2.2006 during investigation of case FIR No.7/06, u/s 411/471 IPC and 25 Arms Act of PS Special Cell, the accused Mohd Salim @ 101 Allahdiya who was in police custody remand in the above said case disclosed that he alongwith one Sahin Saifi @ Kasim, R/o Meerut, UP alongwith other associates committed murder of Deepak in the area of Dwarka, Delhi in the month of March, 2005 and that Sahin Saifi used to visit in Seelampur and Zaffrabad and other parts of Trans-Yamuna area. On this, sources were deployed and on 7.2.2006 he alongwith SI Sajjan Singh, SI V.N. Jha, HC Dev Dutt, HC Vijender Rathi, HC Devi Daya and Constables Pankaj Sharma, Sanjay Kumar, Sukhbir and Ravinder Singh and accused Mohd Salim were present near Sonia Vihar Water Plant, Brij Puri, Delhi in connection with the investigation of the above case. At about 6.15 pm he received secret information that Sahin Saifi, who was wanted in Dwarka murder case and other cases of murder, dacoity, attempt to murder, robbery etc. would come in front of Ambedkar College on main Wazirabad road having illegal arms with him at about 7.30 pm to meet one of his associate. He discussed this information with senior police officers and SI V.N. Jha. Thereafter they reached near Ambedkar College, main Wazirabad Road and requested 6-7 passersby to join the raiding party after apprising them about the secret information but none agreed and left without disclosing their names and addresses. He has further stated that SI V.N. Jha briefed all the team 102 members and directed them to take position near the said college. At about 7.35 pm one person came on foot from the side of Loni Chambery who was pointed out by the informer as well as by accused Salim as Sahin Saifi. All the team members acted promptly to apprehend Sahin Saifi but on seeing the police accused Sahin Saifi tried to escape from there and whisked out his revolver from left side waist belt and fired on the police party indiscriminately and he had a narrow escape. In retaliation Ct. Sunder Gautam fired one shot towards the accused in order to apprehend him and finally accused Sahin Saifi was apprehended by him with the help of Ct. Sunder Gautam. The accused was disarmed immediately and on checking the weapon two cartridges were found fired in the chamber and four live cartridges of .32 bore were still there. All the cartridges were taken out and sketch Ex.PW4/A of weapon and fired as well as live cartridges was prepared. He has further stated that Mark IOF was found written on the body of revolver and number was found defaced and on unfolding the butt of the revolver, number 22748 was found engraved inside the butt. After that butt was refitted with the help of screw driver and the revolver and cartridges were kept in a cloth pullanda and sealed with the seal of RK and seized vide memo Ex.PW4/C. Form FSL was filled in and seal of RK was also affixed on it and seal after use was 103 handed over to Ct Sunder Gautam. He has further stated that thereafter he prepared rukka Ex.PW7/A and handed over the same to Ct. Ravinder Singh who got registered the case at PS. After registration of the case, further investigation was marked to ASI Rishi Pal who came to the spot and he handed over the case property, documents and the accused to ASI Rishi Pal. Thereafter ASI Rishi Pal prepared the site plan at his instance and conducted further investigation and he returned to the PS. He has proved the true copy of entry in register regarding his departure as Ex.PW7/B and information given by him about the apprehension of accused Sahin vide DD No.1 as Ex.PW7/C. He has identified the revolver Ex.P1 to be the same which was recovered from the accused and seized in this case and fired arm Ex.P2 to be the same which was fired by constable Sunder Gautam in retaliation in self defence.

15. PW-4 HC Sunder Gautam has stated that on 7.2.2006 he alongwith SI Sajjan Singh, SI V.N. Jhan, HC Dev Dutt, HC Devender Rathi, HC Devi Dayal, HC Pankaj Sharma, HC Sukhbir, Ct. Ravinder and HC Rakesh Tomar was associated in the investigation of case FIR No.7/06 PS Special Cell and accused Salim @ Allahdiya was on police remand with them and accused Salim @ Allahdiya had taken the police party to Trans Yamuna Brij Puri Water Plant. At about 6.15 pm HC Rakesh 104 Tomar received secret information that one person namely Sahin @ Kaim wanted in Dwarka murder case would come in front of Ambedkar College at about 7.30 pm to meet one of his associate. HC Rakesh Tomar conveyed this information to SI V.N. Jha and other senior officers and they all reached near Ambedkar College and parked the vehicles in safe location. Some passers- by were also requested to join the proceedings but none agreed. In one case, Ct. Pankaj, HC Sukhbir and accused Salim were sitting and in other car, HC Dev Dutt, DC Devi Dayal, Ct. Sanjay were sitting. He, SI Sajjan Singh, SI V.N. Jha, HC Vijender, HC Rakesh Tomar were in civil clothes and they were standing on the road near the bus stop. He has further stated that at about 7.35 pm, one boy was seen coming from the side of Gole Chakkar, Loni towards Ambedkar College. The secret informer as well as accused Salim @ Allahdiya pointed out towards that boy stating that he was Sahin Saifi. Accused Sahin Saifi was corner and when they tried to apprehend him, accused Sahin Saifi, on seeing that he had been cornered by the police party, opened fire towards them from his revolver and he (PW-4) also fired towards him in self defence and thereafter apprehended him with the help of PW-7 HC Rakesh Tomar and revolver was taken from him. The revolver recovered from accused Sahin Saifi was checked and it found containing four 105 live cartridges and two fired cartridges. Thereafter HC Rakesh Tomar prepared the sketch Ex.PW4/A of the revolver and the cartridges. He has further stated that fired cartridge which was fired by him in his self defence was also taken from the spot and its sketch Ex.PW4/B was prepared by HC Rakesh Tomar and thereafter the revolver and cartridges recovered from the accused as well as the fired cartridge produced by him, were kept in separate pullandas, sealed and taken into possession vide memo Ex.PW4/C and D and form CFSL was also filled in. Thereafter HC Rakesh Tomar prepared the tehrir and sent the rukka through Ct. Ravinder who got registered the case at the PS. After registration of the case, Ct. Ravinder returned to the spot and handed over the copy of FIR and original tehrir to HC Rakesh Tomar. He has further stated that thereafter ASI Rishi Pal came to the spot to whom further investigation was entrusted and all the documents and pullandas prepared by HC Rakesh Tomar were handed over to him. He has further stated that accused had fired towards the police party with intention to kill them and after completing the proceedings, they left the spot and case property was deposited in the malkhana. He has identified the revolver Ex.P1 to be the same which was recovered from accused and fired cartridge Ex.PW2 to be the same which was fired by him in self defence.

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16. PW-5 Ct. Ravinder and PW-8 SI Sajjan Singh had also supported and corroborated the statement of PW-4 HC Sunder Gautam and PW-7 HC Rakesh Tomar.

17. PW-9 ASI Rishi Pal, the second IO has stated that on 7.2.2006 at about 8.30 pm on receipt of telephonic message from Hc Rakesh Tomar about apprehension of accused Sahin Saifi and recovery of one revolver and cartridge from him, he was directed by Inspector, Special cell to reach the spot as further investigation was entrusted to him. When he reached the spot, HC Rakesh Tomar alongwith other members of the raiding party were found present and HC Rakesh Tomar produced before him the accused, documents prepared by him and the case property in sealed pullandas. Thereafter he asked 5-6 persons to join the proceedings but none agreed. He also tried to trace the led of the fired cartridge but the same could not be traced. Ct. Sunder Gautam produced one fired cartridge of 9 mm which was fired by him from his service revolver and he prepared its sketch Ex.PW4/B and then kept the same in pullanda and sealed with the seal of RPS and taken into possession vide memo Ex.PW4/D. He also prepared the site plan Ex.PW9/A at the instance of HC Rakesh Tomar and also recorded his statement. Thereafter accused was arrested vide arrest memo Ex.PW8/A and his personal search was conducted vide memo Ex.PW8/B. 107 He has further stated that after that accused alongwith the case property was taken to PS Special Cell and case property was deposited in the malkhana. Ct. Ravinder handed over to him the copy of FIR and rukka in the office of Special Cell. Thereafter accused was interrogated and his disclosure statement Ex.PW8/C was recorded by him. The accused was produced in the Court and two days police remand was obtained. On 10.2.2006 accused was again interrogated and his supplementary disclosure statement Ex.PW8/D was also recorded. PW-9 ASI Rishi Pal Singh has further stated that he wrote letter to Indian ordinance Factory, Kanpur to inquire about the recovered revolver and the relevant information Ex.PW6/A was supplied by the said Ordinance factory. It was also revealed that the said revolver was robbed at the time of commission of dacoity at the house of Raisuddin at Meerut, UP regarding which a case FIR No.180/05 had been registered at PS Nisari Gate, Meerut. He collected the copy of FIR Ex.PW2/A from the said PS and the concerned IO of that case was also informed about recovery of said revolver. He also made inquiries from Raisuddin and collected the copy of licence and receipt of purchase of said revolver which are Ex.PW3/B and C and seized the same vide memo Ex.PW3/A and also recorded the statement of Raisuddin. He has further stated that on 28.2.2006 the pullanda of revolver 108 and cartridges was sent to CFSL, Chandigarh later on the report Ex.PW9/B was collected. He also obtained the sanction u/s 39 Arms Act from DCP (Special cell) which is Ex.PW9/C and also collected the copy of complaint u/s 195 CrPC Ex.PW9/D from ACP (Special Cell) who filed the said complaint in the Court of ld. CMM. He has further stated that during investigation he also collected the CFSL report Ex.PW9/F regarding verification of the number of revolver which was found defaced and filed the same in the Court vide application Ex.PW9/E. He also collected the report Ex.PW9/G from CRO regarding previous involvement of the accused and placed the same on record. He has identified the fired cartridge Ex.P2 to be the same which was produced by Ct. Sunder Gautam and seized by him.

18. On behalf of State, Sh. S.C. Sharma, Addl. PP has submitted that accused Sahin Saifi was involved in number of cases as is clear from the CRO report and further it is proved from record that revolver Ex.P1 used by accused Sahin Saifi with an intention to kill the members of the raiding party to facilitate his escape, was robbed from the house of Rahisuddin and was case property of case FIR No.180/05 under Sec.394 IPC PS Lasedi Gate. Ld. Addl. PP has further submitted that non- joining of public witness is not reason to disbelieve the testimony of the police officials as they had no enmity with the 109 accused Sahin Saifi and they even did not identify him by face. It was only because of the information from secret informer, disclosure statement of accused Salim @ Allahdiya who was in police custody at that time that accused Sahin Saifi was apprehended and arrested. Ld. Addl. PP has further submitted that the revolver Ex.P1 which was robbed from the house of PW-3 Sh. Rahisuddin R/o 25, State Bank Colony, Hapur Road, Meerut for which case FIR No.180/05 under Sec.394 IPC PS Lasedi Gate was registered at Meerut could not have been planted by the police officials of Special Cell as they had no access to the robbed property looted from the house of PW-3 Sh. Rahisuddin at Meerut. It has been further contended that the police officials had put their lives to risk to apprehend such a dreaded criminal who was wanted in number of heinous crimes and recovered the revolver from him though the accused Sahin Saifi tried to kill them by firing from that revolver. It has been contended that all the ingredients of Sec.186/353/307 IPC and under Sec.25/27 Arms Act has been proved in this case, hence accused Sahin Saifi be convicted for the said offences.

19. On behalf of accused Sahin Saifi, Sh. V.P. Lathwal, Amicus Curaie has submitted that it is a case of false implication of the accused and this is the reason that despite claiming his apprehension from a thickly populated area, no independent 110 public witness has been joined in this case. Ld. Defence counsel has further contended that it is a stereo type story of the police that accused tried to fire towards the members of the raiding party but none of the police official has received any injury in this case which shows the falsity of the allegations levelled against the accused. Ld. Defence Counsel has further contended that there are material contradictions in the statement of police officials which make their testimony untrustworthy and no revolver was recovered from the possession of this accused. He was falsely implicated in this case after planting the revolver on him. It has been further contended that telegram was also sent by a friend of accused Sahin Saifi to Chief Justice, Delhi; SSP - Ghaziabad and National Human Rights Commission about his taking away by the police from Raj Chauple, Modi Nagar on 30.1.2006 and false implication or encounter which is sufficient to prove the innocence of the accused, hence he be acquitted.

20. I have considered the rival contentions and carefully gone through the record. In the instant case, no doubt the prosecution has not examined any independent public witness but that does not become a ground to disbelieve the testimony of police officials who were not even known to the accused prior to his apprehension in this case on 7.2.2006. So far as defence of the accused is concerned that his friend Javed has sent telegram 111 to Chief Justice, Delhi; SSP- Ghaziabad and National Human Rights Commission, accused has failed to produce his friend Javed in his defence nor his complete address is mentioned on the photocopy of the telegram placed on file. Further no record has been summoned from the Post Office, Meerut or from the office of SSP-Ghaziabad or other authorities to establish that any such telegram was ever sent. Even if it is assumed for the sake of arguments that the telegrams are duly proved, the date 30.1.2006 is added in the telegram later on without mentioning any time or even whether it was day or night. Secondly, the copy of the telegram has been obtained on 6.2.2006 whereas the accused has been arrested in this case by the officials of Special Cell on 7.2.2006 meaning thereby that telegram was sent already in advance to prepare the defence, otherwise there was no occasion for Javed, friend of accused Sahin Saifi to obtain the copy after about six days of sending the same.

21. So far as appreciation of evidence is concerned, the testimony of PW-7 HC Rakesh Tomar and PW-4 HC sunder Guatam is sufficient to prove on record that when the members of the raiding party cornered the accused on the pointing out of informer and accused Salim @ Allahdiya, the accused Sahin Saifi fired towards them from his revolver. No doubt, none of the police official has received any injury but examination of 112 revolver shows that it contained four live cartridges and two fired cartridges, which further corroborates the testimony of these two witnesses i.e. PW-4 HC Sunder Gautam and PW-7 HC Rakesh Tomar, who were public servants, that accused Sahind Saifi obstructed them in discharge of their duties to apprehend the persons on the wrong side of the Law but also used criminal force i.e. by firing towards them to deter them from discharging their duty i.e. to nab the offender on the basis of information received from secret informer. The act of firing towards the police party by the accused to facilitate his escape also satisfy the ingredients of Sec.307 IPC when accused even did not hesitate to fire towards police officials to deter them from apprehending him. From the statement of PW-16 Sh. Deepak Middha, Sr. Scientific Officer, it stands proved that the defaced number of the revolver was restored as '22748' and from the statement of PW-6 Sh. Chandr Prakash, Supervisor, Fieldgun Factory, it stands proved that it was purchased by Sh. Raisuddin, S/o Sh. Isalamuddin, R/o 25, State Bank Colony, Hapur Road, Meerut. PW-3 Sh. Raisuddin has also stated that the said revolver was robbed from his house laongwith jewellery and cash and has also proved the copy of purchase bill and copy of licence as Ex.PW3/B and C.

22. In the instant case, the testimony of PW-4 HC Sunder 113 Gautam and PW-7 HC Rakesh Tomar is consistent regarding the manner in which the accused was apprehended and attempt by the accused to deter them from apprehending him and even to commit murder of members of the raiding party by firing towards them to facilitate his escape. It is also proved on record that he was found in possession of one revolver which was .32 bore revolver alongwith cartridges without any licence which was used by him for unlawful purpose. The statement of these prosecution witnesses is sufficient to prove the case of the prosecution beyond reasonable doubt, hence, accused Shin Saifi is held guilty for the offence punishable under Sec.186/353/307 IPC and 25/27 Arms Act and convicted accordingly.


Announced in the open Court

27.1.2009                            ( PRATIBHA RANI )
                                     ASJ-01(Central)/Delhi




                               114
         IN THE COURT OF SMT. PRATIBHA RANI,
         ADDL. SESSIONS JUDGE-01 (CENTRAL),
              TIS HAZARI COURTS, DELHI

SC No.272/07

State                Vs        Sahin Saifi @ Kasim,
                               S/o Sh. Mazhar,
                               R/o Shahpur Gate,
                               Mohalla Chauhatta,
                               PS Kotwali, Meerut, U.P.

                               FIR No.9/06
                               U/S : 186/353/307 IPC &
                               U/s 25/27 Arms Act.
                               PS : Special Cell

                               Arguments heard on : 28.1.09
                               Order pronounced on : 28.1.09

                               ***
ORDER ON SENTENCE

I have heard the convict Sahin Saifi on the point of sentence. Sh. S.C. Sharma, ld. Addl. PP for the State has also made submissions.

2. It has been submitted by the convict that he is innocent and has been falsely implicated in this case. It has been further submitted by him that due to fear of police, even his family members are not visiting him and his case has been defended by Amicus Curaie appointed by the Court and due to his involvement in number of cases, his financial position is very weak and there is none to take care his family. He has prayed for lenient view.

115

3. On behalf of State, Sh. S.C. Sharma, ld. Addl. PP has contended that taking into consideration that the convict is involved in number of criminal cases in Delhi and U.P. and in the instant case also, he fired towards the members of the raiding party. Ld. Addl. PP has contended that exemplary punishment may be awarded to the accused.

4. Taking into consideration the entire facts and circumstances of the case, the convict Sahin Saifi is sentenced to undergo rigorous imprisonment for three months for the offence punishable under Sec.186 IPC. Convict Sahin Saifi is also sentenced to undergo rigorous imprisonment for two years for the offences punishable under Sec.353 IPC. Taking into consideration that no police official was hurt in the firing, convict Sahin Saifi is also sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.100/- for the offences punishable under Sec.307 IPC. In default of payment of fine, he shall undergo simple imprisonment for two days. Since a .32 bore revolver was also recovered from the possession of the convict which was used by him for unlawful purpose i.e. for firing on the police party to escape from there, he is further sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.100/- for the offences punishable under Sec.25/27 Arms Act. In default of payment of fine, he shall 116 undergo simple imprisonment for two days. All the sentences shall run concurrently. The period of detention already undergone by the convict during investigation/trial of the case, if any, shall be set off under Sec. 428 CrPC. Case property i.e. the revolver Ex.P1 which is also the case property of case FIR No.180/05 under Sec.394 IPC, PS Lasedi Gate, Meerut shall be preserved so that it can be produced during trial of case FIR No.180/05 PS Lasedi Gate, Meerut whenever summoned by the Court. File be consigned to Record Room.


Announced in the open Court

28.01.2009                           ( PRATIBHA RANI )
                                     ASJ-01(Central)/Delhi




                               117
       IN THE COURT OF SMT. PRATIBHA RANI,
    ADDL. SESSIONS JUDGE, TIS HAZARI COURTS,
                     DELHI

SC No.42/08

State                 Vs       Harish
                               S/o Sh. Lala Ram
                               R/o 1895, Basti Julahan,
                               Sadar Bazar, Delhi.

                               FIR No.408/07
                               U/s 308 IPC
                               PS : Sadar Bazar

                               Date of Institution : 30.1.08
                               Arguments heard on : 28.1.09
                               Order pronounced on : 28.1.09

                               ***

JUDGMENT

Accused Harish has been sent to face trial for the offence punishable under Section 308 IPC. The present case was registered on the basis of statement made by Vikas s/o late Sh. Babu Lal wherein he has alleged that on 10.11.2007 he was present on the ground floor of his house and other family members were at first floor. At about 4.30 PM his neighbour Harish was firing crackers (rocket) in front of gate of his house, and one rocket entered the cooler lying in his house due to which grass caught fire. He extinguished the fire by pouring water. When he asked Harish not to fire the crackers, he got annoyed and started abusing and picked up the brick lying in the gali and 118 hit the same on the back of his head as a result of which blood started oozing. On seeing this, Harish fled away from there. On hearing the noise, his brother Sunil came down from the 2nd floor and took him to RML Hospital where he was treated. The matter was reported to the police. During investigation accused Harish was arrested and after completion of investigation charge sheet was filed in the Court.

2. After compliance of provisions of Sec. 207 CrPC, the case was committed to the Court of Sessions.

3. After hearing on the point of charge, accused Harish was charged on 24.4.2008 for the offence punishable under Sec.308 IPC to which he pleaded not guilty and claimed trial.

4. Prosecution has examined five witnesses in support of its case. Accused has also been examined under Sec.313 CrPC and the incriminating evidence appearing against him on record was put to him but he has denied the case of prosecution and stated that he has been falsely implicated in this case. He has not led any evidence in his defence.

5. I have heard ld. Addl. PP for the State and ld. Counsel for the accused and also carefully gone through the record.

6. In this case PW1 Sh. Vikas, the complainant/injured was the star witness, who while deposing before the Court in 119 examination-in-chief, stated that on 10.11.2007 at about 4.30 pm he was present on the ground floor at his house and other family members were present at first floor. Their cooler etc. were kept by them on the ground floor and he was cleaning the cooler. The door of their house was open and accused Harish fired cracker (rocket) which struck in the jali of the cooler and the grass caught fire. He has stated that he raised alarm 'Aag Lag Gayi' and the same was extinguished by his brother with water. He asked the accused Harish why he had done so on which accused started abusing him and also told that 'TUM MUJHE GALI MEIN PATAKHE JALANE SE NAHI ROK SAKTE'.

PW1 has further stated that accused hit a brick on his head and blood started oozing out from the injuries. The accused ran away from there though his brother, who reached the spot on hearing the noise of quarrel, tried to apprehend Harish. He has stated that his brother removed him to RML Hospital where he got treatment. Police reached the hospital and recorded his statement Ex.PW1/A. Police also prepared the site plan on his pointing out and he also produced the brick which was hit on his head and the said brick was kept in plastic polythene and seized by the police vide memo Ex.PW1/B. PW1 Vikas has further stated that on the next day, accused Harish was arrested on his identification from near Khari Kuan, Basti Jullan, Sadar Bazar 120 vide arrest memo Ex.PW1/C and his personal search was conducted vide memo Ex.PW1/D. He has identified the brick as Ex.P1 to be the same which was hit on his head by the accused.

7. However, when this witness was subjected to cross examination by ld. Defence counsel, he took a 'U' turn and stated that as soon as he saw that a fire cracker struck in the jali of the cooler and grass caught fire, he immediately rushed from that place and while running he fell down and sustained injuries on his head. He has admitted it as correct that as the persons of the locality were saying that the said cracker was fired by the accused, he named Harish as the person who caused injury to him. During cross examination PW1 has also admitted that the accused had not abused him nor caused injury by hitting a brick on his head. He has stated that police did not seize anything from the spot in his presence and obtained his signature on some blank papers. He has also stated that he was tutored by the police official before deposing in the Court on 14.8.2008. This witness was re-examined by ld. Addl. PP and during re- examination this witness has admitted it as correct that he had not made any complaint after 14.8.2008 to the Court or to any higher authority that he was tutored by a police official before deposing in the Court on 14.8.2008. This witness was also cross examined by the ld. Addl. PP but without any success. 121 During cross examination by the State this witness has specifically denied the suggestion that accused had caused injury to him on his head by hitting a brick or that he had not received injury by falling while running.

8. PW2 Sunil is brother of the injured/complainant. He has deposed that on 10.11.2007 he was present on the second floor of his house and on hearing noise of quarrel he came down and saw that a crowd had gathered there and his brother Vikas was bleeding from the back side of his head. He took him to RML Hospital in TSR. He has stated that his brother informed him that Harish had caused injuries to him with a brick. During cross examination this witness has admitted that he had not seen the accused causing any injury to his brother.

9. PW3 Ct. Dilawar Singh has deposed that on 11.11.2007 at about 4.00 pm he joined the investigation of this case with ASI Mahavir Singh and injured Vikas was also with them. On the pointing out of injured, accused Harish was arrested from Khari Kuan, Idgah Road vide arrest memo Ex.PW1/C and his personal search was also conducted vide memo Ex.PW1/D. He has stated that accused was got medically examined at Hindu Rao Hospital.

10. PW-4 Ct. Virender Singh and PW5 ASI Mahavir Singh have made identical statement to the effect that on 122 10.11.2007 they were posted at PS Sadar Bazar and on that day on receipt of copy of DD No.30-A, copy of which is Ex.PW5/A, they had reached the spot i.e. 1888, Basti Julahan, Sadar Bazar where it was revealed that injured had already been removed to RML Hospital. They reached RML Hospital where injured Vikas was found admitted. ASI obtained MLC Ex.PW5/B of injured Vikas and also recorded his statement Ex.PW1/A. ASI made his endorsement Ex.PW5/C and got registered the case vide FIR, copy of which is Ex.PW5/D and also prepared site plan Ex.PW5/E at the instance of injured/complainant. One brick Ex.P1 was also seized vide memo Ex.PW1/B after keeping the same in a pullanda and sealing the same with the seal of MS. They have also stated that on 11.11.2007 accused Harish was arrested vide arrest memo Ex.PW1/C and his personal search memo Ex.PW1/D was also prepared. ASI has stated that he deposited the MLC in the hospital and later on collected the nature of injuries which at point X to X.

11. As the only material witness i.e. PW-1 Vikas, the complainant/injured has not supported the case of prosecution and gave contradictory statement in the Court and in the absence of any other incriminating evidence against the accused, I am of the opinion that the case under Sec.308 IPC has not been proved by the prosecution against the accused, hence accused Harish is 123 acquitted of the charge. Case property shall be confiscated to the State after the expiry of period of appeal, if any. File be consigned to Record Room.

Announced in the open Court.

28.1.2009                            ( PRATIBHA RANI )
                                     ASJ-01(Central)/Delhi




                               124
         IN THE COURT OF SMT. PRATIBHA RANI,
         ASJ-01(CENTRAL), TIS HAZARI COURTS,
                       DELHI

                        ***

SC No.219/07




State             Vs     (1) Devender
                             S/o Sh. Nafe Singh
                             R/o Village Rajlu Garhi
                             District Sonepat (Haryana).

                         (2) Dinesh Aggarwal
                             S/o Sh. Hari Ram
                             R/o Gurmandi, Samalkha
                             Districy Panipat (Haryana)

                         (3) Amit Jhakar
                             S/o Sh. Ashok Kumar
                             R/o 123/24, Dev Nagar
                             Sonepat (Haryana).

                         (4) Sanjeev
                             S/o Sh. Hari Ram
                             R/o Anil Book Depot
                             Samalkha, Pamipat.

                         (5) Mukesh
                             S/o Sh. Kanshi Ram
                             R/o Village Rajlu Garhi
                             District Sonepat (Haryana).

                         (6) Yogesh Bansal
                             S/o Sh. Shri Krishan
                             R/o Gurmandi, Samalkha
                             District Panipat (Haryana)




                         125
                             (7) Suresh
                                S/o Sh. Bhale Ram
                                R/o Vill. Sanghora Kalan
                                District Sonepat (Haryana)

                            (8) Rajbir
                                S/o Sh.Om Parkash
                                R/o Behri Road, Samalkha
                                Panipat (Haryana).

                            (9) Pradeep Jindal
                                S/o Sh. Roop Chand
                                R/o Mandi Gannor
                                near arya Samaj Mandir
                                Sonepat (Haryana)

                            (10) Rajesh
                                 S/o Sh. Om Parkash
                                 R/o Gurmandi, Samalkha
                                 Haryana.


                            FIR No.324/03
                            U/s 147/148/149/186/332/353/
                            337/427/342IPC& Secs.146/151/
                            152/174 I.R. Act.
                            PS : RMD


                            Date of Institution : 06.05.05
                            Arguments heard on : 28.1.09
                            Order pronounced on : 28.1.09

                            ***

JUDGMENT

Briefly stating the case of the prosecution is that the case FIR No.324/03 PS RMD was registered on the basis of statement of Sh. Subhash Chander Sharma, Station Master, 126 Railway Station Narela. As per the complaint Ex.PW2/A, he was on duty at Narela Station from 4.00 pm to 12.00 midnight. At about 8.38 pm, train 7 DPM (Delhi-Panipat passenger train) came from Holambi and stopped at Narela Railway Station and within half a minute about 20-30 passengers got down from the train and entered his room stating that some persons had pelted stones on them at Holambi Kalan Station and police be called to arrest them and if he was unable to get it done for them, train should be taken back to Holambi Kalan and they themselves would settle the score with the persons who pelted stones on them. He tried to pacify them but they became more agitated and crowd started gathering there. He informed the PCR and the Station Superintendent Sh. Tara Chand. At about 9.25 pm, Addl. SHO Inspector Inderjeet Singh alongwith his staff also reached there and they tried to pacify the agitated passengers but they became violent and snapped the telephone wire. Police used necessary force to control them by using danda and teat gas shells but the crowd became uncontrolable on the police as well as his office shouting that station be set on fire and crowd did not move even after use of tear gas shells. Thereafter 10 persons were apprehended by the police whose names were revealed as Devender, Dinesh Aggarwal, Amit, Sanjeev, Mukesh, Yogesh, Suresh, Rajbir, Pradeep and Rajesh and that the Railway 127 property i.e. the door of his office, booking office, train operational panel, window panes, telephones etc. were damaged by the crowd and necessary action was prayed against the offenders.

2. After completing the proceedings i.e. seizure of the damaged property and arrest of the accused persons and completion of investigation, chargesheet was submitted against the accused persons for committing the offence punishable under Sec.147/148/149/186/332/353/337/427/342 IPC & u/s 146/151/ 152/174 I.R. Act.

3. After compliance of provisions of Sec. 207 CrPC, the case was committed to the Court of Sessions.

4. After hearing on the point of charge, all the accused persons were charged on 2.4.2007 for the offence punishable under Sec.143,145,147,149,186 r/w 34,333, 342 r/w 34, 353 r/w 34, 337 r/w 34, 427 r/w 34 IPC and under Sections 146, 151 I.R. Act to which they pleaded not guilty and claimed trial.

4. Prosecution has examined ten witnesses in support of its case. As nothing incriminating against the accused persons had come on record which could be put to the accused persons, their statement under Sec.313 was CrPC dispensed with.

5. I have heard ld. Addl. PP for the State and ld. Counsels for the accused and also carefully gone through the record. 128

6. In this case, PW-2 Sh. Subhash Chander Sharma is the most important witness who has witnessed the occurrence whereas other witnesses i.e. PW-1 Sh. Ravinder, who was present in the train and sustained injuries due to pelting of stones on the train at Holambi Kalan Railway Station, PW-3 Dr. Deepak Singh, who medically examined the injured, PW-4 HC Ishwar Prasad, the Duty Officer who recorded the FIR in this case, PW-5 Ct. Ravinder, PW-6 ASI (Retd.) Bhoom Singh, PW-7 Sh. Tara Chand, Station Superintendent, PW-8 HC Raj Pal, PW-9 HC Balwan Singh and PW-10 Inspector Inderjeet Singh have not witnessed the occurrence.

7. PW-2 Sh. Subhash Chander Sharma - the complainant has stated that on 10.10.2003 he was posted as Station Master at Narela Railway Station and his duty hours were 4.00 pm to 12.00 midnight. At about 8.38 or 8.39 pm, train No.7-DPM reached Narela Railway station and within a minute, the passengers got down from the train and started entering his office and asked him not to allow the train to leave as passengers sustained injuries due to pelting of stones on them by certain persons at Holambi Kalan Railway Station. He told those passengers that he will take action in this regard and will call the police and also inform the PS of Narela Railway Station, however those passengers insisted for taking back the train to 129 Holambi Kalan Railway Station. He has further stated that those passengers did not pay any heed to his advice and did not listen to him and continued insisting for taking back the train to Holambi Kalan Railway Station to take revenge from the persons who pelted stones on the train and this happened for about half-an-hour. In the meanwhile two or four police persons came to his room as someone had given a ring to PCR. Police tried to prevail upon those passengers and also took him aside so that he came out of reach of those persons, however those passengers continued creating disturbance and in the meanwhile stones were hurled from outside on the room and some stones also entered the room. Police asked him that in order to protect himself, he should escape through the back door which opened towards outside the railway station and he alongwith the police persons came out from the Station Master Room. He has further stated that police persons continued flashing the messages to various police stations and reported about the happenings at the Railway Station. He went to the house of Station Superintendent while running which was just near the Station and apprised him about all the facts and circumstances. He alongwith Station Superintendent came to the Station and they were informed that people were shouting slogans in raised voices and stones were being pelted and that police had also used tear gas. Many police 130 persons had arrived by that time and when he entered the room, he found that stones were lying in the Station Master Room and rain operation panel equipment and other telephones were lying in broken condition. He has further stated that messages were sent to the signal department to repair the damages and to make the equipment functional and after the situation became normal, the train operation also started and train No.7-DPM also proceeded towards Panipat. As this witness did not support the case of prosecution, he was cross examined by ld. Addl. PP for Station but could not extract anything incriminating against any of the accused persons. He has specifically denied the suggestion that the accused persons, present in the court, were arrested by the police in his presence.

8. PW-10 Inspector Inderjeet Singh has stated that on 10.10.2003 he was posted as Addl. SHO at PS Narela and on receipt of DD No.42B, he alongwith HC Raj Pal, Ct. Balwan, HC Suresh and other staff members had gone to Narela Railway Station where he saw that in front of the office of Station Master, a crowd had gathered who were pelting stones. He gave warning to the public persons gathered there but it had no effect. Thereafter he directed Ct. Balwan and HC Suresh to use tear gas who used 10 tear gas shells and two hand granades but despite that the mob could not be controlled. He has further stated that 131 HC Raj Pal was carrying light pistol and he directed him (HC Raj Pal) to fire from the same for the reason that due to snapping of electric wire by the crowd, there was total darkness at the railway station and he fired 40 rounds from the light pistol but the mob could not be controlled. Thereafter he fired four rounds in air and from the mob, ten persons were overpowered. In the mean time some officials came from Delhi Railway Main Station and on the basis of statement made by Station Master, ASI Bhoom Singh, he prepared rukka and sent the same through Ct. Gajraj Singh for registration of the case. ASI Bhoom Singh also seized piece of stones, broken pieces of plastic, glass, mirror, telephone instruments etc. after keeping them in a plastic thela and sealing the same with the seal of BS vide memo Ex.PW2/B. After the registration of the case, his statement was recorded. He has stated that the persons who were apprehended on that day are present in the Court today but as five years have passed, he could not identify them individually by mentioning their names.

9. After trial, all the accused persons are acquitted of the charge due to following reason :-

In the instant case, all the material witnesses have not supported the case of prosecution. PW-2 Sh. Subhash Chander Sharma though narrated the incident but did not depose anything 132 incriminating against the accused persons. He has not identified the accused persons to be the same who damaged the railway property or involved in the incident. Even the accused persons were specifically pointed out and shown to this witness by ld. Addl. PP but he stated that none of the accused persons were arrested in his presence.

PW-1 Sh. Ravinder, a public witness, who also sustained injuries in this occurrence, has also not supported the case of prosecution. Even PW-10 Inspector Inderjeet Singh, in his cross examination by ld. Defence counsels, has stated that he himself had not seen any of the accused persons pelting stones of damaging the railway property. Same reply has been given by other police officials i.e. PW-6 ASI (Retd.) Bhoom Singh, PW-8 HC Raj Pal and PW-9 HC Balwan Singh. So far as occurrence is concerned, it is not disputed by the accused persons and the statement of the prosecution witnesses only proves that on that day, violent mob came to the office Station Master and were agitated on the refusal of the Station Master to send back the train to Holambi Kalan Railway Station which infuriated them and they resorted to pelting of stones and breaking/damaging the railway property. However, none of the prosecution witnesses has seen these accused persons being actively involved in this incident and their mere presence at the railway station is not 133 sufficient to base their conviction in this case. Hence, all the accused persons are acquitted of the charge. Case property be confiscated to the State after expiry of period of appeal, if any. File be consigned to Record Room.


Announced in the open Court

28.1.2009                            ( PRATIBHA RANI )
                                     ASJ-01(Central)/Delhi




                               134
         IN THE COURT OF SMT. PRATIBHA RANI,
         ADDL. SESSIONS JUDGE-01 (CENTRAL),
              TIS HAZARI COURTS, DELHI

SC No.260/07

State                Vs       (1) Asha,
                              W/o Rakesh,
                              R/o F-19/18, Sector-15,
                              Rohini, Delhi.

                              (2) Rakesh,
                              S/o Radhey Shyam,
                              R/o F-19/18, Sector-15,
                              Rohini, Delhi.

                              FIR No.384/04
                              U/S : 366/376/368/120-B/34 IPC
                              & U/S 3, 4, 5, & 6 of I.T.P. Act
                              PS : Jama Masjid

                              Date of Institution : 19.2.2005
                              Arguments heard on : 28.1.09
                              Order pronounced on : 28.1.09
                              ***
JUDGMENT

Prostitution is the oldest profession prevalent in the Society and even today when Government and Society are making all possible efforts for upliftment of the women and educating them to make them self dependent, this profession is flourishing now in different form. Earlier prostitution was restricted to specific area commonly known as Red Light Area. But now this cancer has spread even to the residential area thus crossing the boundaries of red light area and spreading in such form that even law enforcing agencies may find it difficult to 135 detect prostitution going on in residential flats. This is also one of the case where husband and wife having three children were not only living but also running a brothel in their residence with number of girls indulged into prostitution restricted to one or two. The case FIR No.384/04 PS Jama Masjid was registered on the basis of statement of the victim, a 19 years old young unmarried girl who travelled all the way from Kolkata to Delhi in the hope of a bright future but the accused persons procured her for prostitution and when she was produced before the police, she was pregnant and that unwanted pregnancy was terminated under orders of the Court.

2. Accused Asha and Rakesh have been sent to face trial for committing the offence punishable under Sec.366/376/368/ 120-B/34 IPC & U/S 3, 4, 5, & 6 of I.T.P. Act. As per victim/complainant Smt. Seema Dass, she used to work as Nurse in Kolkata. On 6.12.2004 her neighbourer Deepak met her at Barrack Pur Station and promised her a respectable job in Delhi. She accompanied him to Delhi where he kept her at Bashir Guest House, Jama Masjid and repeatedly raped her. When she asked him to get her some job as Nurse, Deepak took her to one person namely Rakesh at Sector-7, Rohini. There she was forced to indulge in prostitution by accused Rakesh and his wife i.e. accused Asha. She repeatedly requested Rakesh and Asha 136 not to spoil her life but they told her that they had purchased her and she had to follow their command. On 14.12.2004 at about 10.00 am she ran away from their house and requested one Auto Driver to drop her at Railway Station but he preferred to drop her at some Gurudwara and the Gurudwara persons handed over her to the police. On the basis of statement Ex.PW3/A made by the complainant, case was registered against accused Asha and Rakesh and both the accused were arrested. After completion of investigation, as accused Deepak remained untraceable, only accused Asha and Rakesh were sent to face trial for the aforesaid offences.

3. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

4. After hearing on the point of charge, both the accused were charged for the offence punishable under Sec.366/368/34 IPC and under Sec.3, 4, 5 and 6 of I.T.P. Act to which they pleaded not guilty and claimed trial.

5. Prosecution has examined twelve witnesses in all in support of its case. Accused Asha and Rakesh have also been examined under Section 313 CrPC in which they have denied the case of the prosecution. Accused Asha has stated that the complainant and her brother Deepak came from Kolkata to visit the house of her sister Rakhi at Rohini but her sister had already 137 left the rented premises in which she was residing. The complainant and her brother Deepak requested her to live in her house for two days which she permitted. She and her husband were called to PS Kotwali as after leaving her house the complainant could not find her way. Her husband was contacted by the police as somehow the complainant reached the police and gave his number and later on she and her husband were falsely involved in this case. Accused persons have not led any evidence in this defence.

6. I have heard Sh S.C. Sharma, Addl PP for the State and Sh. J.P. Suhag, counsel for both the accused and also gone through the record carefully.

7. Out of the twelve witnesses examined by the prosecution, PW-1 Ms. Nandita Basu was posted as Reader in Modern Indian Language Department, Delhi University and her services were availed as Interpreter to record the statement of the complainant who was not able to understand Hindi but could understand Bengali only. She has stated that she truly interpreted the version of the complainant before the Ld. Magistrate and her statement in this regard is Ex.PW1/A. She has also proved the statement made by the complainant and translated by her as Ex.PW1/B.

8. PW-12 Sh. Kanwaljeet Arora, the ld. MM who has 138 recorded the statement of the complainant under Sec.164 CrPC has stated that when the application was marked to him for recording the statement of the complainant under Sec.164 CrPC, he directed the IO to arrange for Interpreter and only when the Interpreter was arranged that he recorded the statement of complainant on 4.1.2005 who is Ex.PW1/B and certificate regarding correctness of the statement recorded by him is Ex.PW12/A.

9. PW-3 Ms. Seema Dass, the complainant appeared as a witness on 1.10.2005 before the Court and in the proceedings dated 1.10.2005, it is specifically mentioned that by that time the complainant could understand and speak Hindi so there was no necessity of Interpreter for recording his statement. The complainant has stated that she was residing in Kolkata and working in a Nursing Home. On 6.12.2004 her neighbourer Deepak met her at Barrack Pur Railway Station and told her about job in Delhi on better payment in comparison to Kolkata. On the promise of a good job in Delhi by Deepak, she came to Delhi and stayed in a Guest House and after two days, Deepak took her to the house of accused persons namely Asha and Rakesh who were correctly identified by the complainant to be the same persons who were present in the Court on that day. She has further stated that Deepak left her at the house of the 139 accused persons assuring that he would come later but he never returned. Two other girls were also in the house of the accused persons and many persons used to come to that house and committed rape on her. Those persons also used to pay money to the accused persons for having sex with her without her consent and that money used to be kept by accused persons and she was not paid any money by them. Whenever she protested and complained to the accused persons, she was told that they had purchased her after making payment to Deepak. On 14.12.2006 she ran away from the house of the accused persons and one auto driver left her in a Gurudwara and Head of Gurudwara informed the police. Her statement was recorded by the police which is Ex.PW3/A. Thereafter she was also sent for medical examination. She was also produced before Ld. Magistrate for recording her statement under Sec.164 CrPC. She has also stated that her clothes were seized by the doctor in the hospital and her salwar Ex.PW1 was the same which was seized by the doctor.

10. PW-4 Sh. Hawa Singh is the Care Taker of Nari Niketan, Jail Road who has stated about the detention of complainant in Nirmal Chhaya from 16.12.2004 to 17.1.2005 and that she was pregnant and her pregnancy was terminated in the hospital and that the doctor handed over to him two small 140 sealed foils duly sealed with the seal of CMO/DDU Hospital containing DNA sample alongwith sample seal which he handed over to the IO who seized the same vide memo Ex.PW4/A.

11. PW-10 Dr. Sharda Ghosh, Senior Resident, Lok Nayak Hospital has appeared in the witness box and identified the handwriting and signature of Dr. Sachi Gupta on the MLC Ex.PW10/A who prepared the same after examining the complainant. She has stated that Dr. Sachi Gupta has left the services of that hospital.

12. PW-11 Dr. Shashi Lata Kabra has been examined to prove the record in respect of termination of pregnancy of the complainant. She has proved the photocopy of the relevant record as Ex.PW11/A (12 pages) and stated that as per record, medical termination of pregnancy of complainant was done on 15.1.2005.

13. PW-5 SI Harivansh Singh has stated that on 14.12.2004 he was posted at PS Kotwali and on that day, two sewadars of Gurudwara Shish Ganj and one lady produced the complainant before him in police booth near Gurudwara Shish Ganj. He made inquiries from the complainant and recorded her statement Ex.PW3/A and also consulted the senior officers who instructed him to take her to PS Rohini as the case belongs to Rohini. He took the complainant to PS Rohini and the concerned 141 SHO instructed him to go to PS Jama Masjid as preliminary inquiry was made by PS Jama Masjid. Then he took the complainant to PS Jama Masjid where ASI Satpal made endorsement on the statement of the complainant and thereafter he left the PS Jama Masjid.

14. PW-6 ASI Satpal Singh has stated that on 15.12.2004 SI Harivansh Singh came to PS Jama Masjid with the complainant and other staff. He made endorsement Ex.PW6/A on the statement of the complainant and took her to LNJP Hospital with Lady Ct. Champa. After medical examination of the complainant, he obtained the MLC and one pullanda alongwith sample seal was also given to him at LNJP Hospital and thereafter they returned to PS Jama Masjid and the sealed envelope with sample seal was handed over to SI Abdul Kaleem who seized the same vide memo Ex.PW6/B. Thereafter he alongwith SI Abdul Kaleem and Lady Ct. Champa and the complainant went to the house of the accused Asha i.e. GF-34, Sector-7, Rohini and at the instance of complainant, accused Asha was arrested vide memo Ex.PW2/A and her personal search was also conducted vide memo Ex.PW2/B. Thereafter they returned to police station and accused Asha was sent to the lock-up.

15. PW-7 HC Vinod Kumar is the Duty Officer who 142 recorded the FIR of this case on the basis of rukka produced by SI Satpal. He has proved the carbon copy of the FIR as Ex.PW7/A and the endorsement made by him on the rukka as Ex.PW7/B.

16. PW-2 Lady Ct. Champa has stated that on 15.12.2004 she was posted at Ps Nabi Karim and was on night duty at CDCR. She has stated that on receiving information from PS Jama Masjid, she reached JPN Hospital alongwith ASI Satpal where complainant was medically examined and one sealed parcel was handed over by the doctor at JPN Hospital to ASI Satpal and thereafter they all returned to PS Jama Masjid. She has further stated that they visited some Sector in Rohini to the house of the accused and on the identification of the complainant, accused Asha was arrested vide memo Ex.PW2/A and she conducted her personal search vide memo Ex.PW2/B.

17. PW-9 is SI Abdul Kaleem who has stated that on 15.12.2004 he was posted at PS Jama Masjid and investigation of this case was handed over to him. He deputed SI Satpal Singh to take the victim for medical examination and after getting the medical examination done, ASI Satpal came to the PS alongwith some pullanda given by the Doctor which was seized by him vide memo Ex.PW6/B. Thereafter they accompanied the victim to House No.34, Ground Floor, 143 Sector-7, Rohini in search of accused Asha, Rakesh and Deepak. Accused Asha was pointed out and identified by the complainant and accused Asha was arrested and her personal search was also conducted and in view of the circumstances narrated by the complainant, he also added Sec.366 and 368 IPC and Sections 3, 4, 5 and 6 of ITP Act and produced accused Asha in the Court and handed over the file to the SHO. He also got recorded the statement under Sec.164 CrPC of the complainant with assistance of Interpreter and obtained copy of the same. He has further stated that on 7.1.2005, he accompanied the SHO to Sector-16, Rohini Main Road where he alongwith Ct. Sarfraj apprehended the accused Rakesh on the basis of secret information. Accused Rakesh was interrogated and arrested in this case vide arrest memo Ex.PW8/A2 and his personal search was also conducted vide memo Ex.PW8/A1. Accused Rakesh has also made disclosure statement which is Ex.PW9/D.

18. PW-8 Inspector Giri Raj Singh has stated that on 20.12.2004 while he was posted at PS Jama Masjid, the file was transferred to him for further investigation by Addl. SHO Darshan Singh. On 22.12.2004 he recorded the statement of complainant. On 7.1.2005 accused Rakesh was arrested from Main Road, Sector-16, Rohini on the basis of secret information. He has further stated that he sent SI Abdul Kaleem for getting 144 the statement of the complainant recorded before the Court of MM and also made efforts to search accused Deepak who remained untraceable due to incomplete address. He has further stated that he arranged for the return of the complainant to her native place and after completion of investigation, filed the chargesheet.

19. Sh. S.C. Sharma, Ld. Addl. PP for State has contended that from the statement of the complainant, it stands proved beyond reasonable doubt that she was brought from Kolkata to Delhi by one Deepak who remained untraceable, assuring some good job on higher salary but here she was sold to the accused persons who were running a brothel and compelled her to indulge in prostitution and the accused persons were surviving on her earning through prostitution as well as of some other girls kept there for that purpose and in the circumstances, the case against the accused persons stands proved beyond reasonable doubt and accused persons be convicted for the offences complained of.

20. On behalf of accused persons, Sh. J.P. Suhag, Advocate has contended that in the instant case statutory requirements in cases under ITP Act has not been complied with and investigation has not been conducted by a person of the rank of Inspector nor any social worker was associated, hence on this 145 ground alone accused persons are entitled to be acquitted. Ld. Defence counsel has further contended that except the statement of complainant, there is no material on record to prove the allegations against the accused persons that they compelled her to indulge in prostitution or they were living on such earnings. It has been further contended that the accused persons had given shelter to the complainant as she came to meet her sister who had already vacated the house where she was earlier living and the accused persons were called to the Police Station only because the complainant knew their telephone number and had no other place to go or person known to her and when the accused persons went to the police station, Deepak was not there and only complainant was there and by recording her manipulated statement, the accused persons have been falsely implicated in this case. Ld. Defence counsel has further contended that there are lot of improvements in the statement of the complainant which have been duly confronted by putting to her statement recorded under Sec.164 CrPC and her testimony is not reliable so as to prove the guilt of the accused persons. It has been further contended that the accused persons are having school going children and it is highly improbable that the couple would keep the girls in their house and run a brothel in their flat in the presence of their own children. Ld. Defence counsel has 146 prayed for acquittal of the accused persons.

21. I have considered the rival contentions. So far as contention of ld. Defence counsel that statutory requirements have not been complied with is concerned, it is not a case where raid was conducted by the police party rather the entire case of the prosecution is that on getting opportunity, the complainant ran away from the house of the accused persons and asked one Auto Driver to drop her at the Railway Station but instead of leaving her at the railway station, he dropped her near Gurudwara. It was only on the basis of information received from Gurudwara that the police initiated action. So on this ground, the accused cannot take any benefit.

22. It has come on record that at the time of making complaint before the police, the complainant was knowing Bengali only and even her statement under Sec.164 CrPC could be recorded through Interpreter PW-1 Ms. Nandita Basu. It was only when the complainant appeared and examined as witness on 1.10.2005 that she informed the Court that she could understand and speak Hindi thus dispensing with the requirement of Interpreter. It is established on record that the complainant was a stranger in Delhi and had no place to go. A promise of bright future and prosperous life made her to accompany Deepak to Delhi who left her with the accused 147 persons and after making promise to return, he never returned. It is specifically stated by the complainant that the accused persons who are husband and wife were keeping two other girls already in that house and persons used to visit that house and committed rape on her after paying money to the accused persons. She has specifically stated that those persons used to have sex with her without her consent after paying money to both the accused persons who had been keeping that money with them and whenever she protested and complained to the accused persons, they told her that they had purchased her after making payment to Deepak. Although she has been confronted with her complaint Ex.PW3/A, supplementary statement Ex.PW3/DA and statement under Sec.164 CrPC Ex.PW1/B wherein she did not state that those persons were paying money to both the accused persons. A reading of all the three statement shows that in all the three statements, he has stated that she was brought to Delhi by Deepak who has remained untraceable and he left her at the house of accused persons who forced her to indulge into prostitution and were making money by inviting or calling the persons from outside to have sex with her against her wishes. There is no material contradiction in the three statement i.e. complaint Ex.PW3/A, supplementary statement Ex.PW3/DA and statement under Sec.164 CrPC Ex.PW1/B which has been 148 confronted to her during cross examination so as to discard her testimony. The Law is well settled that it is not every contradiction the benefit of which can be taken by the accused. In the case State of U.P. vs. M.K. Anthony, AIR 1985 SC 48 following guidelines have been laid down by the Apex Court for the appraisal of the evidence :

"While appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole, appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, draw backs and infirmities, pointed out in the evidence as a whole and evaluate them to find out whether, it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies of trivial matter, not touching the core of the case, hypertechnical approach by taking sentence torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of evidence as a whole."
Their Lordships further observed :
"unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention, and reproduction differ with individuals. Cross-examination is an unequal dual between the rustic and refined lawyer."

23. In the instant case, accused Asha has been arrested 149 from her house on the pointing out of complainant and her husband had been arrested subsequently. The statement of the complainant who was a victim also does not require any corroboration. Though the allegation of rape are not against the accused in this case but so far as the fact that she was subjected to sexual intercourse against her will by inviting customers and charging from them is sufficient to establish that she was sexually assaulted against her wishes repeatedly making her pregnant, requiring corroboration was amount to adding insult to injury. If judgment is need on this point, reliance can be placed on State of Punjab Vs. Gurmit Singh (1996) 2 SCC 384, wherein the Hon'ble Supreme Court has observed as under :-

"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which has no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to thrown out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable.
150
Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amount to adding insult to injury."

24. Here the complainant could not have any grudge against the accused persons had it been like that she was given shelter by the accused persons for the reason that she came to visit her sister Rakhi at Rohini who had already vacated the premises and she had no other place to go. It is relevant to mention here that in their statement under Sec.313 CrPC, both the accused persons have stated that complainant alongwith her brother Deepak came to Delhi from Kolkata to visit the house of her sister Rakhi at Rohini but her sister had already left the rented premises in which she was residing and that on the request of complainant and her brother Deepak, they permitted them to live in their house for two days. After the complainant alongwith Deepak left their house, they could not find their way but managed to reach at the police station and gave their number as they had no other known person in Delhi and when accused Asha contacted the police, she was falsely implicated in this case and later on her husband was also taken by the police from his house and falsely implicated in this case.

25. During cross examined by accused persons, no question has been asked from the complainant that she had any sister with the name Rakhi living in Rohini, Delhi or that 151 Deepak was her brother. It is not even mentioned by the accused persons as to how Rakhi was known to them, in which house she was residing, when she vacated that house and how Deepak and complainant happened to reach the house of the accused persons. Even otherwise when the complainant came to Delhi, she was unmarried girl but at the time of registration of this case, she was found pregnant and her pregnancy was terminated by the order of the Court. The suggestion given by the accused persons to the complainant is that after Deepak left her at the house of the accused persons telling that he would take a house on rent in a day or two but did not return and the accused persons asked her to arrange a house and they were having family to support which annoyed the complainant and she lodged a false report against the accused persons. The defence of the accused persons is not only highly improbable but the mere fact that different stands have been taken by them while cross examining the complainant and while making statement under Sec.313 CrPC is itself a ground to disbelieve their defence. The contention of ld. Defence counsel that accused persons who are husband and wife had three grown-up children and how it is possible to run a brothel in the presence of three children is concerned, first of all it is the morality of the person running a brothel to see what kind of environment he wants to give his children. When husband 152 and wife both are living on the earning of prostitution, it is for them to decide whether they want their children to join their profession. Even otherwise it is not the case of the accused persons that it was the one room flat and any residential unit having more then one room can be used for 'residential' as well as for 'commercial' purpose which unfortunately in the given case is running a brothel.

26. From the statement of PW-5 SI Harivansh Singh, it is proved that he was posted at PP Shish Ganj when two sewadars of Gurudwara Shish Ganj and one lady produced the complainant before him and he made inquiries and informed the superior officers and further action was taken in the matter as per directions of the SHO. Thus, it is established that complainant could get police assistance through Sewadars of Gurudwara Shish Ganj.

27. For a lady who was not having even a single known person in Delhi, she had two options i.e. either to accept her destiny as prostitute to be exploited by the accused persons physically, mentally and economically or to run away from their house in the hope that she would be able to return home. It was only because of presence of mind of the Auto Driver who dropped her at Gurudwara Shish Ganj that she did not fall in the hands of another prostitution racket but came in safe hands of 153 Sewadars at Gurudwara and police thus could return home. In such circumstances, there was not even remote possibility of the false implication of the accused persons by her with whom she had stayed in Delhi. The mere fact that she named the accused persons in her complaint, pointed out their house and specifically stated that the house was being used a brothel and the accused persons were charging money from customers for having sex with her against her wishes and that they procured her through Deepak for sake of prostitution and living on her earning through prostitution does not require any corroboration as her statement is not only reliable and trustworthy but also does not suffer from any kind of infirmity.

28. In view of the above discussion, I am of the opinion that prosecution has been able to prove its case against the accused persons that accused persons had been allowing their premises i.e. F-19/18, Sector-15, Rohini as brothel and were also living on the earning of prostitution by charging from the customers for having sex with the complainant and retaining the money with them and had procured the complainant after she was brought to Delhi from Kolkata by one Deepak who left her with them. Since there is no evidence against these accused persons that they had abducted the complainant with intention that she may be forced or seduced to illicit intercourse or that 154 they had concealed or confined her with the knowledge that she had been abducted by Deepak nor requirements of Sec.6 of ITP Act are satisfied, both the accused are acquitted of the charge for the offence punishable under Section 366/368 IPC and under Sec.6 of ITP Act.

29. Thus, both the accused persons are held guilty for the offence punishable under Sec.3, 4 and 5 of ITP Act and convicted accordingly.


Announced in the open Court

28.1.2009                            ( PRATIBHA RANI )
                                     ASJ-01(Central)/Delhi




                               155
         IN THE COURT OF SMT. PRATIBHA RANI,
         ADDL. SESSIONS JUDGE-01 (CENTRAL),
              TIS HAZARI COURTS, DELHI

SC No.260/07

State                Vs       (1) Asha,
                              W/o Rakesh,
                              R/o F-19/18, Sector-15,
                              Rohini, Delhi.

                              (2) Rakesh,
                              S/o Radhey Shyam,
                              R/o F-19/18, Sector-15,
                              Rohini, Delhi.

                              FIR No.384/04
                              U/S : 3, 4, & 6 of I.T.P. Act
                              PS : Jama Masjid

                              Arguments heard on : 29.1.09
                              Order pronounced on : 29.1.09

                              ***
ORDER ON SENTENCE

I have heard the convicts and their counsel Sh. J.P. Suhag, Advocate on the point of sentence. Sh. S.C. Sharma, Ld. Addl. PP for State has also made submissions.

2. Sh. J.P. Suhag, Advocate for the convicts has contended that the convicts are first time offenders. They have three children i..e one married daughter and two sons aged about 17 years to support and there is none to take care of them as both the convicts are from West Bengal and they had no acquaintance in Delhi. It has been contended that atleast for the 156 sake of children of the convicts, a lenient view may be taken and a chance be given to them to reform themselves and be released on probation. Ld. Defence counsel has relied upon H.P. Vaid Vs. Mrs. Parveen Soni & Ors 1999 (50) DRJ, Aitha Chander Rao Vs. State of Andhra Pradesh 1961 (Supp) SCC 17, Rajinder Singh Vs. State 1997 JCC 98 and Daljit Singh & Ors Vs. State of Punjab through Secretary Home Affairs V (2006) SLT 569 in support of his contention.

3. Sh. S.C. Sharma, Ld. Addl. PP has prayed for awarding of maximum sentence to the convicts who despite having their own children did not hesitate in indulging a young girl of 19 years into prostitution by running a brothel at their own house.

4. I have considered the submissions made on behalf of the convicts as well as by Ld. Addl. PP for State. In the instant case, the victim was a 19 years old unmarried girl who was working as nurse in Kolkata. A nurse who was healing the wounds of other persons has been given deep wounds by the convicts which no medicine can heal. The convicts themselves being from West Bengal should have protected the young girl like their own daughter but instead of that they compelled her to indulge into prostitution and were living on her earnings. The fact that they converted their own house into brothel was harmful 157 not only to their own children but even to the neighbourers.

4. Taking into consideration the entire facts and circumstances of the case and gravity of the offences committed by the convicts and that the minimum sentence has been provided by the Statute, the prayer for release on probation is declined. Both the convicts are sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.2000/- each for the offence punishable under Sec.3 of ITP Act. In default of payment of fine, they shall undergo simple imprisonment for two months. Convicts Asha and Rakesh are also sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1000/- each for the offence punishable under Sec.4 of ITP Act. In default of payment of fine, they shall undergo simple imprisonment for one month. Convicts are is also sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.2000/- each for the offence punishable under Sec.5 of ITP Act. In default of payment of fine, they shall undergo simple imprisonment for two months. All the sentences shall run concurrently. The period of detention already undergone by the convicts during investigation/trial of the case, if any, shall be set off under Sec. 428 CrPC. File be consigned to Record Room.


Announced in the open Court

29.1.2009                             ( PRATIBHA RANI )
                                      ASJ-01(Central)/Delhi


                                158
         IN THE COURT OF SMT. PRATIBHA RANI,
         ADDL. SESSIONS JUDGE-01 (CENTRAL),
              TIS HAZARI COURTS, DELHI

SC No.80/08

State                Vs       (1) Pintoo,
                                  S/o Sh. Shri Prasad
                                  R/o Village Devariya
                                  PS Kadipur,
                                  Distt. Sultanpur, U.P.

                              (2) Jilajeet Yadav,
                                  S/o Sh. Shiv Harak,
                                  R/o Village Ranukher,
                                  P.O. Rithuapur,
                                  PS Saharnava,
                                  Distt. Gorakhpur, U.P.

                              FIR No.42/06
                              U/S : 363/376/506 IPC
                              PS : Anand Parbat

                              Date of Institution : 5.4.2006
                              Arguments heard on : 28.1.09
                              Order pronounced on : 29.1.09
                              ***
JUDGMENT

Briefly stating the case of the prosecution is that on 8.2.2006 the prosecutrix (name of the prosecutrix withheld to conceal her identity) was produced before W/ASI Pushpa by her parents. She made statement to the effect that she was 15 years old and has studied upto 8th standard. One person Jilajeet Yadav, friend of his father was also residing in their house and for preceding two years, he had been repeatedly committing rape on her in the absence of her parents. Whenever she wanted to raise 159 alarm, he threatened to kill her. Whenever she tried to point out the conduct of the accused Jilajeet Yadav to her parents, they did not pay any heed which mentally disturbed her. In the meantime, she became friendly with her tenant Pintoo. On 1.2.2006 at about 7.00 am she went to her school and after the school was over at 12.30 pm, she was returning home and when she reached Gali No.6, Industrial Area, Anand Paarbat, she met Pintoo who induced her to accompany him to Nangloi. There she was kept in a room. When accused Pintoo brought her to Anand Parbat Industrial Area, Gali No.4 at about 1.00 am, she saw her parents searching for her. She met them and was brought to the police station by her parents where her statement was recorded.

2. On the basis of statement made by the prosecutrix, case FIR No.42/06 was registered at PS Anand Parbat. During investigation, both the accused were arrested and chargesheet was filed against them for committing the offence punishable under Sec.363/376/506 IPC.

3. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

4. After hearing on the point of charge, accused Pintoo was charged for the offence punishable under Sec.363/342 IPC and accused Jilajeet was charged for the offence punishable 160 under Sec.376/506 to which they pleaded not guilty and claimed trial.

4. Prosecution has examined three witnesses in all in support of its case. Accused Pintoo was also examined under Section 313 CrPC in which he has denied the case of the prosecution and stated that prosecutrix was in love with him and she called him to her school and he was compelled by her to accompany her to Nangloi as she did not want to go back to her house. He has further stated that even at Nangloi he asked the prosecutrix to go back to her house but she refused to leave him and that he has not sexually assaulted her at any point of time or during her stay at Nangloi and that the prosecutrix had made a false statement under the pressure of her parents and to save the co-accused Jilajeet whom she called as 'chacha'.

5. As nothing incriminating was deposed by any of the prosecution witnesses against accused Jilajeet, his statement under Sec.313 CrPC was dispensed with.

6. I have heard Sh S.C. Sharma, Addl PP for the State and Sh. Sumit Gupta, Amicus Curaie for accused Pintoo and carefully gone through the record.

7. PW-1 - the prosecutrix has stated that accused Jilajeet was like brother to her who has been adopted by her mother as her son as she (her mother) was not having any son. Accused 161 Jilajeet was living with them and helped her mother in bringing her up. Accused Pintoo was their tenant and subsequently he vacated the house in his tenancy. She has further stated that she had no relation with Pintoo except that he was their tenant and that accused Jilajeet is her brother and he has not committed rape on her. She has further stated that on 1.2.2006 when her school was over, her mother was not present outside the school to take her home as daily she used to come to the school and take her back. As she was returning to her house, at about 12.30 pm accused Pintoo met her and told her that her mother was standing at some distance and asked her to accompany him. He also told her that her mother was sitting in a scooter and made her to sit in the three wheeler while holding her hand and asked her to remain silent. She has further stated that accused Pintoo took her to Nangloi and kept her in a room where he committed rape on her for three days. After three days, two police persons were seen by her and they slapped her. When she questioned them as to why they were beating her, they asked her to keep quite. When they took her near a TSR, she saw her mother sitting in the TSR. From Nangloi she was brought to PS Anand Parbat. She was made to sit in a separate room and questioned. She has also stated that her statement Ex.PW1/A was recorded by the police but she made statement to the police only against 162 accused Pintoo. Thereafter she was also got medically examined at DDU Hospital. Her statement was also got recorded before ld. Magistrate which is Ex.PW1/B. As this witness did not support the case of prosecution, she was cross examined at length by ld. Addl. PP for State. During cross examination by ld. Addl. PP, she has stated that she was forced by the police i.e. W/ASI Pushpa and one Devender to give the statement Ex.PW1/A and that she was not permitted to talk to any senior police officer to complaint against Devender and W/ASI Pushpa that her statement was forcibly recorded. She has denied the suggestion that she did not make any complaint to Senior Police Officers or Court as she made a correct statement voluntarily which was recorded in Ex.PW1/A and volunteered that police officers used to visit their house to take money and her mother sold one kilogram silver to pay to police to procure the release of her brother Jilajeet. She has stated that accused Jilajeet was not friend of her father and that he had been living in their house for the last about 20-25 years. She has specifically denied the suggestion that accused Jilajeet started living in their house two years prior to this case and that for the last about two years from the date of incident, in the absence of her parents, accused Jilajeet used to enter her room, pressed her mouth and repeatedly committed rape on her and also threatened to kill her in case she 163 inform about this to her parents. She has denied that in the month of October when her parents left for their village, accused Jilajeet committed rape on her and thereafter also he was always looking for an opportunity to commit rape and whenever he got the opportunity, he committed rape on her. She has further denied the suggestion that on the intervening night of 7/8.2.2006 when Pintoo brought her in gali No.4, Indutsrial Area, Anand Parbat and at about 1.00 am her parents met her, who were searching for her and they brought her and accused Pintoo before the police at PS Anand Parbat. She has specifically denied the suggestion that she was intentionally suppressing the fact that accused Jilajeet had committed rape on her several times for the last about two years whenever her parents were away and that she was intentionally not deposing anything against accused Jilajeet as she had mixed up with him.

8. PW-2 Smt. Basanti, mother of the prosecutrix has stated that she has five daughters and two sons and that she did not remember the date or month but about two years back, her daughter, who was born after three children, had gone to school at about 7.00 am but did not return after the school was over. She has further stated that thereafter she started searching for her daughter but could not find her for two days and after two days, she alongwith her husband and accused Jilajeet went to PS 164 Anand Parbat to report the matter but police did not pay any attention to their complaint. Police refused to lodge the report and when accused Jilajeet insisted for the same, they demanded money which they did not pay and she continued sitting in the police station throughout the day. Then at about 10.00 pm police took her to Nangloi and she was made to get down on the way asking her that they would bring the girl themselves. Thereafter they brought the girl but did not permit her to meet her daughter and her daughter was kept in the police station. She has further stated that accused Jilajeet is son of friend of her husband and mother of accused Jilajeet died when Jilajeet was six months old and his father died when he was eight years old. Father of accused Jilajeet handed over Jilajeet to her for bringing him up as she was not having any son at that time and since then accused Jilajeet has been residing with her in the same house as her son. PW-2 Smt. Basanti has further stated that thereafter they also put accused Jilajeet in the lock-up and as she refused to pay money for release of Jilajeet, he was falsely implicated in this case and that the police had also taken one kilogram silver from her house. As this witness did not support the case of prosecution, she was cross examined by ld. Addl. PP for State but without any success. She has specifically denied the suggestion that on the night intervening 7/8.2.2006 when they 165 were searching for their daughter, they saw her alongwith accused Pintoo, who was earlier their tenant, and on seeing them, her daughter embraced her and her husband caught Pintoo and both of them were brought to the police station. She has also denied the suggestion that her daughter told her that Jilajeet Yadav, who is friend of her (PW-2) husband, used to come in her (prosecutrix) room for last many years when she and her husband were not at home or that accused Jilajeet used to commit rape on her (prosecutrix) and whenever she tried to raise alarm he used to gag her mouth and threatened to kill her in case she raise alarm. She has also denied the suggestion that police had not taken any silver from her house nor demanded any money and that she was intentionally suppressing the true facts to save the accused persons.

9. PW-3 Sh. Ram Parsad is the father of the prosecutrix who has stated that he has five daughters and two sons and that on 1.2.2006 his daughter had gone to school at about 7.00 am. When she did not return till evening, they searched for her. When she could not be found, he alongwith his son i.e. accused Jilajeet went to PS Anand Parbat after two-three days to lodge the report and their report was recorded. Thereafter they searched for his daughter. He also paid Rs.200/- to police and thereafter his daughter was brought by the police. Thereafter 166 police demanded Rs.40,000/- from them which they did not pay and they were harassed by the police. He has further stated that her daughter was traced out after 10-12 days and thereafter accused Jilajeet was arrested as they did not pay money to the police. He has also stated that father of accused Jilajeet was his friend. Mother of accused Jilajeet died when he was eight years old and after 15-20 years of the death of his mother, his father also died and thereafter he was brought up by them. As this witness did not support the case of prosecution, he was cross examined by ld. Addl. PP for State but could not extract anything incriminating against any of the accused.

10. In the instant case, the genuineness of the MLC of the prosecutrix was not disputed by the accused persons and they have also admitted their respective MLCs.

11. In this case, only the statement of the prosecutrix is relevant to consider whether the prosecution has been able to prove its case against accused Pintoo because so far as accused Jilajeet is concerned, he had been exonerated not only by the prosecutrix but also by her parents by claiming that accused Jilajet Yadav was like brother of the prosecutrix and he had not done anything wrong with her. So far as accused Pintoo is concerned, in her statement under Sec.164 CrPC Ex.PW1/B recorded before the Magistrate which PW-1 - the prosecutrix 167 has claimed to be correctly recorded, she has specifically stated that accused Pintoo is her friend and she treated him as her brother. In that statement also, the prosecutrix has stated that she was taken to Nangloi by accused Pintoo which fact stands admitted by accused Pintoo himself in his statement under Sec.313 CrPC. Although while deposing before the Court, the prosecutrix has levelled the allegations of rape against accused Pintoo but neither in her complaint Ex.PW1/A nor in the statement under Sec.164 CrPC Ex.PW1/B she levelled any allegation of rape against accused Pintoo. It appears that she made such statement while deposing before the Court only against accused Pintoo under the pressure of her parents and accused Jilajeet to exonerate him and implicate accused Pintoo only and this part of her testimony cannot be believed. So far as her factum of taking to Nangloi by the accused and keep her in a room is concerned, it stands established not only from her statement but also from admission of the accused Pinto while making statement under Sec.313 CrPC. As per the school record, the date of birth of the prosecutrix is 2.4.1992 i.e. on the day when accused Pintoo had taken the prosecutrix to Nangloi, she was under 18 years of age and was minor. As the accused Pintoo had taken away the prosecutrix, who was a minor at that time, from the lawful guardianship of her parents to Nangloi and 168 kept her confined in a room, prosecution has been able to prove its case against accused Pinto for the offence punishable under Sec.363/342 IPC.

11. As none of the prosecution witnesses i.e. PW-1 - the prosecutrix, PW-2 Smt. Basanti and PW-3 Sh. Ram Parsad, parents of the prosecutrix have deposed anything incriminating against the accused Jilajeet, he is acquitted of the charge.

12. In view of the above discussion, accused Pintoo is held guilty for the offence punishable under Sec.363/342 IPC and convicted accordingly whereas Jilajeet Yadav is acquitted of the charge.


Announced in the open Court

28.01.2009                            ( PRATIBHA RANI )
                                      ASJ-01(Central)/Delhi




                                169
         IN THE COURT OF SMT. PRATIBHA RANI,
         ADDL. SESSIONS JUDGE-01 (CENTRAL),
              TIS HAZARI COURTS, DELHI

SC No.80/08

State                Vs        Pintoo,
                               S/o Sh. Shri Prasad
                               R/o Village Devariya
                               PS Kadipur,
                               Distt. Sultanpur, U.P.

                               FIR No.42/06
                               U/S : 363/342 IPC
                               PS : Anand Parbat

                              Arguments heard on : 29.1.09
                              Order pronounced on : 29.1.09
                              ***
ORDER ON SENTENCE

I have heard the convict Pintoo through Sh. Sumit Gupta, Amicus Curaie on the point of sentence. Sh. S.C. Sharma, Addl. PP has also made submissions on behalf of State.

2. It has been submitted by the convict that he is aged about 21 years and already remained in custody for about one year. It has also been submitted that it was a case of love affair and because of the family circumstances, the prosecutrix herself compelled him to take her away from her parents and due to this reason only he had taken her to Nangloi. It has also been contended on behalf of convict that though the prosecutrix remained in Nangloi in a room but he did not commit any rape on her and in view of the fact that he was not aware that 170 prosecutrix was not yet attain the age of 18 years, a lenient view may be taken and a chance be given to him to reform himself.

3. Taking into Consideration the entire facts and circumstances of the case especially the fact that in the complaint Ex.PW1/A allegations of rape were made against accused Jilajeet Yadav only against whom none of the prosecution witness including the prosecutrix deposed even a single word, the statement of the prosecutrix that she was friendly with convict Pintoo, the fact that convict Pintoo is not involved in any other case and is first offender, he is sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.100/- for the offence punishable under Sec.363 IPC. In default of payment of fine, he shall undergo simple imprisonment for two days. Convict Pintoo is also sentenced to undergo rigorous imprisonment for three months for the offence punishable under Sec.342 IPC. Both the sentences shall run concurrently. The period of detention already undergone by the convict during investigation/trial of the case, if any, shall be set off under Sec. 428 CrPC. Case property shall be returned to its rightful owner after the expiry of period of appeal, if any. File be consigned to Record Room.


Announced in the open Court

29.1.2009                             ( PRATIBHA RANI )
                                      ASJ-01(Central)/Delhi


                                171
         IN THE COURT OF SMT. PRATIBHA RANI,
         ASJ-01(CENTRAL), TIS HAZARI COURTS,
                       DELHI

                             ***


SC No.36/07 & 305/07

State      Vs          (1)         Chand Mohd @ Iqbal
                                   S/o Sh. Mohd Arif
                                   R/o -1/344B, Dal Mill Road,
                                   Uttam Nagar, Delhi.


                             (2) Mohd Amin Shakeel,
                                 S/o Sh. Mohd Yunus,
                                 R/o 6370, Gali Ishwari
                                 Prasad, Bara Hindu Rao,
                                 Delhi.


                             (3) Agha Zafar Mirza,
                                 S/o Sh. Humayun Mirza,
                                 R/o 1434 Gali Chatta
                                 Nawab Saheb, Farash
                                 Khanna, Delhi.


                             (4) Mohd Anis Khan
                                 S/o Sh. Mehboob Ilahi,
                                 R/o 134 Katra Gukulshah,
                                 Matia Mahal, Jama Masjid,
                                 Delhi.


                             FIR No.69/05
                             Under Sec.392/397/34/120-B
                             IPC & Under Sec.25/27/54//59
                             Arms Act
                             PS : DBG Road



                             172
                                Date of Institution : 12.5.05
                               Arguments heard on : 21.1.09
                               Order pronounced on : 29.1.09

                               ***

JUDGMENT

Accused Chand Mohd., Mohd Amin Shakeel, Agha Zafar Mirza and Mohd Anis Khan have been sent to face trial for the offences punishable under Sections 392/397/34/120-B IPC & under Sec.25/27/54/59 Arms Act. The case FIR No.69/05 was registered on the statement of one Sh. Lalit Kapoor to the effect that he used to collect electricity, water and telephone bills from various shops at Sadar Bazar market and deposit the same in the concerned offices on commission basis. On 17.2.2005 he was coming on his two wheeler scooter No. DL-4S-R-0652 and at about 8.50 PM he reached East Park Road, Filmistan and turned to eneter gali No.3, Doriwalan to reach his house. He saw three boys standing in the gali and one of them signaled him to stop and another came in front of his scooter. Two other boys stood behind the scooter. One bag was hanging on his scooter containing electricity, water and telephone bills of different shops with cash of Rs.2 lacs. When the boys tried to snatch that bag, he resisted and one of the boy fired from his pistol aiming ground and again fired aiming his feet. One boy was also carrying a knife. There was a scuffle and the boy carrying the 173 knife snatched the bag and ran towards DCM Road Gaushala Marg while the other two boys ran towards East Park road. In the scuffle the pistol and mobile phone of one boy fell there and one scooter make Bajaj Chetak No.DL-7S-G-2832 which perhaps belonged to those boys was also found there and that he could identify those boys who had committed this robbery. On the basis of this statement, SI Manoj Sinha sent the rukka through Ct. Ramesh and summoned the crime team. During the course of investigation, accused Chand Mohd., Mohd. Amin Shakeel and Agha Zafar Mirza were arrested and also made to take part in TIP but could not be identified by the complainant. After completion of investigation, charge sheet was filed against these accused persons. Later on, accused Mohd. Anis Khan was also arrested and supplementary chargesheet was filed against him. Another associate of the accused persons namely Qasim Mirza remained absconded and not arrested till date.

2. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

3. After hearing the prosecution as well as ld. Counsel for the accused, a charge under Sec.120-B IPC, 392/397 r/w Sec.120-B IPC was framed against all the four accused persons and accused Mohd. Amin Shakeel was also charged for the offence punishable under Sec.25 Arms Act to which they 174 pleaded not guilty and claimed trial.

4. Prosecution has examined 18 witnesses in all in support of its case. Accused persons have also been examined under Section 313 CrPC in which they have denied the case of the prosecution and stated that they are innocent and have been falsely implicated in this case. Accused Chand Mohd. has stated that he was lifted from District Centre, Janak Puri by the officials of Kamla Market Special Staff and kept him illegal detention for one day and thereafter he was taken to PP Shidi Pura and then falsely implicated in this case. Accused Mohd. Amin Shakeel has stated that he was lifted by the officials of Special Staff, Kamla Market on 10.3.2005 at about 4.00 am from his house and later on falsely implicated in this case. Accused Agha Zafar Mirza has stated that he was complainant in the murder case of his father-in-law and also an eye witness and the accused in that case wanted to pressurize him to compromise and also offered Rs.20 lacs for which he refused. Thereafter using the influence of police, the accused involved in that murder case, got him falsely implicated in this case. He had also made complaint against those accused persons and police officials of Special Staff and that he himself surrendered in the Court. Accused Mohd. Anis Khan has stated that he was lifted by the officials of Special Staff, Pushp Vihar on 14.8.2007 and 175 kept him in illegal detention till 19.8.2007 and then falsely implicated him in this case.

5. Accused Agha Zafar Mirza has produced his wife Smt. Shabana as DW-1 in his defence. She has stated that on 17.2.2005 she alongwith her husband i.e. accused Agha Zafar Mirza was present at the house and at about 7.00 pm, some police officials came to their house and insisted for compromise in the matter regarding murder of her father and also offered money i.e. Rs.15-20 lacs for settlement. She has further stated that the said police officials also threatened that in case they refuse for settlement, her husband would be falsely implicated in some case. She has also stated that her husband has been falsely implicated by this police in this case and that she herself accompanied her husband when he surrendered in the Court as he was forced to surrender. She has placed on record the photocopy of the complaint may by her to President which is Mark-DW1/A.

6. I have heard ld. Addl. PP for State and ld. Defence counsels and carefully gone through the record.

7. Out of the 18 witnesses examined by the prosecution, PW-3 HC A.K. Krishnan is the photographer who alongwith other members of the Mobile Crime Team reached the spot i.e. East Park Road, Gali No.3, Doriwalan, Karol Bagh, New Delhi 176 and on the direction of the IO, he took five photographs and proved the photographs as Ex.PA/1 to 5 and negatives as Ex.PB (collectively). PW-4 ASI Lokesh Bhardwaj is the Finger Print Proficient who also alongwith other members of the Mobile Crime Team reached the spot i.e. East Park Road, Gali No.3, Doriwalan, Karol Bagh, New Delhi and on the direction of the IO, lifted two chance prints from the helmet tiled on scooter No.DL-7S-G-2832 which were developed at the spot itself and also got photographed and proved his report as Ex.PW4/A. PW-6 SI Anand Mani is the Duty Officer who recorded the FIR No.69/05 on the basis of the rukka sent by SI Manoj Sinha through Ct. Ramesh and proved the copy of the FIR as Ex.PW6/A and his endorsement on the rukka as Ex.PW6/B.

8. PW-5 Ct. Harish Chander received information from PS DBG Road regarding arrest of accused Mohd. Anis Khan which was recorded vide DD no.15 and proved the copy of the same is Ex.PW5/A. PW-10 Ct. Rajbir Singh is a witness to the disclosure statement made by accused Mohd. Anis Khan during his interrogation in case FIR no.884/07 of PS Malviya Nagar regarding his involvement alongwith other associates in case FIR No.69/05, PS DBG Road. He has proved the photocopy of the disclosure statement as Ex.PW10/A. PW-15 HC Xabaria was working as Duty Officer at PS Malviya Nagar on 18.8.2007 and 177 recorded the FIR No.884/07 under Sec.25 Arms Act against accused Mohd. Anis Khan. She has proved the copy of FIR as Ex.PW15/A. PW-16 SI Prashant arrested the accused Mohd. Anis Khan who was already declared proclaimed offender and after interrogation, arrested him in this case, moved application for TIP but he could not be identified by the complainant and thereafter prepared the supplementary chargesheet and filed the same in the Court. He has proved the arrest memo, personal search memo, disclosure statement, pointing out memo as Ex.PW16/B to E in respect of accused Mohd. Anis Khan.

9. PW-18 Sh. Ajay Pandey, Metropolitan Magistrate has proved the TIP proceedings in respect of Mohd. Anis Khan as Ex.PW18/A, certificate given by him regarding correctness of the proceedings at point-X to X and application moved by the IO for conducting TIP as Ex.PW18/B.

10. PW-8 Sh. Pawan Singh, Nodal Officer, Idea Cellular Ltd. has proved the calls details in respect of mobile connection No.9891729306 from 4.2.2005 to 16.2.2005 and from 15.2.2005 to 23.2.2005 and also in respect of mobile connection No.9891327396 from 1.2.2005 to 1.3.2005 as Ex.PW8/A (19 pages). PW-9 Sh. R.K. Singh, Nodal Officer, Bharti Aritel Ltd. has proved the call details in respect of mobile connection No.9810778437 from 16.2.2005 to 18.2.2005 as Ex.PW9/A (one 178 page), in respect of mobile connection No.98107722589 from 16.2.2005 to 18.2.2005 as Ex.PW9/B (one page) and in respect of mobile connection No.9810928707 from 1.1.2005 to 17.2.2005 as Ex.PW9/C (five pages).

11. PW-14 Sh. Ashok Kumar is the registered owner of scooter No.DL-7S-G-5753 and states that it was stolen from outside his house on 4th December about 3-4 years back (his statement was recorded on 3.7.2008) regarding which he lodged report at PS Pandav Nagar. He has further stated that he was informed by the police that his scooter had been recovered and that he had gone to PS DBG Road and has seen his scooter there. When he had seen his scooter in the police station, it was having number plate with another number. He has not proved the copy of FIR lodged by him at PS Pandav Nagar.

12. PW-1 Sh. Sanjay Gupta, PW-7 Sh. Amit and PW-12 Sh. Vinay Kumar are the shop keepers who handed over the bills and as well as bill amount to the complainant Sh. Lalit Kapoor for depositing the same in the concerned departments.

13. PW-11 Ct. Ramesh and PW-13 HC Sunil Kumar remained associated with IO PW-17 SI Manoj Sinha during the investigation of this case. PW-17 SI Manoj Sinha, the investigating officer has stated that on 17.2.2005 while he alongwith HC Sunil and Ct. Ramesh was on patrolling duty near 179 Filmistan, Rani Jhansi Road, at about 9.10 pm some passers-by informed that a quarrel had taken place in gali No.3, Doriwalan, East Park Road and a crowd had gathered there. On receipt of this information, he alongwith HC Sunil and Ct. Ramesh reached at the spot where complainant Lalit Kapoor met him. He made inquiry from Sh. Lalit Kapoor and recorded his statement Ex.PW2/A and made his endorsement Ex.PW17/A on the said statement and handed over the same to Ct. Ramesh for registration of the case. He has further stated that thereafter he also called the dog squad and crime team at the spot who also inspected the site and gave its report and the Finger Prints Proficient told him that two chance prints were found on the helmet. Two helmets were found at the spot which were seized vide memo Ex.PW11/A. On the spot one pistol, two empty cartridges and one live cartridge which was misfired one were recovered. The magazine from the pistol was taken out which was found containing seven live cartridges. He prepared the sketch Ex.PW11/B of pistol, magazine and cartridges and kept the pistol and cartridges in a polythene and prepared a cloth parcel, sealed the same with the seal of MKS and seized vide memo Ex.PW11/C. One scooter No. DL-7S-G-2832 was also found lying there which was also seized vide memo Ex.PW11/D. One mobile phone make NOKIA was also found at the spot 180 which was seized vide memo Ex.PW11/E. On inspection of the said mobile, its number was found as 9810722589. PW-17 SI Manoj Sinha has further stated that thereafter he prepared the site plan Ex.PW17/B at the instance of complainant. In the meantime, Ct. Ramesh came to the spot and handed over the original rukka and copy of FIR to him. On the next day on checking the said scooter, it was found bearing registration number DL-7S-G-5753 engraved on the handle. He called the owner of said scooter and recorded his statement. He also collected the call details of the mobile phone which are Ex.PW9/B. The said number was found to be activated on 16.2.2005 and it was also revealed that many calls were made or received from the the number 9810778437 on this mobile. He also collected the call details of the mobile No.9810778437 which are Ex.PW9/A and this number was also activated on 16.2.2005 and incoming and outgoing calls were found tallied with the above connection number used in the mobile found at the spot. He also collected the calls details of mobile numbers used with the instrument bearing IMEI No.449125556536090 and 351486608389280 which are Ex.PW9/C. He has proved the calls details of mobile No.9891729306 having IMEI No.44912555653609 from dated 4.2.2005 to 6.2.2005 which are Ex.PW17/C. During investigation and after verification of call 181 details, it was revealed that mobile No.9810928707 was used by Laddan Khan and the mobile No.9891729306 was used by Humaiyu Mirza i.e. the father of accused Zafar Mirza.

14. PW-17 SI Manoj Sinha has further stated that on 13.3.2005, he alongwith HC Sunil, Ct. Rajbir and two other constables proceeded for further investigation of this case and at about 7.00 pm, when they were present near Filmistan, he received secret information that four persons i.e. two persons on motorcycle No.DL-9S-M-4064 and two persons on a two wheeler scooter, would come to commit a crime. On this information, nakka bandi was made near Fire Station, Rani Jhansi Road and at about 7.35 pm two persons were seen coming on the motorcycle who were apprehended and on inquiry, their names were revealed as Mohd Amin Shakeel and Chand Mohd Iqbal who were interrogated and were arrested vide arrest memo Ex.PW13/A and B and their personal search memos Ex.PW17/D and E were also prepared. Disclosure statement of both the accused persons namely Mohd. Amin Shakeel and Chand Mohd were recorded which are Ex.PW13/C and D. The said motorcycle was also seized vide memo Ex.PW17/F. As per disclosure statement, accused Chand Mohd led the police party to his house at A-1/344-B, Dal Mill Road, Uttam Nagar, Delhi and produced one bag after taking out the same from a box kept 182 in a room on the first floor. The said bag was found containing eight electric and telephone bills and cash of Rs.2350/- which were kept in pullanda and sealed with the seal of MKS and seized vide memo Ex.PW13/E. As per disclosure statement accused Amin Shakeel also led the police party to 6370, Gali Ishwari Prasad, Bara Hindu Rao which was a workshop and produced one pistol which he had taken out from a fixed wooden almirah. On checking the said pistol was found empty. He prepared sketch Ex.PW13/F of the pistol and its magazine and thereafter the same were kept in a pullanda and sealed with the seal of MKS and seized vide memo Ex.PW13/G. Both the accused persons were produced in the Court next day and one day police custody remand of accused Amin Shakeel was obtained. He has further stated that on 15.3.2005 accused Amin Shakeel got recovered one mobile phone from the workshop in gali Ishwari Prasad, Bara Hindu Roa and on checking, the mobile was found having connection No.9891341223 and its IMEI number was also checked and it was kept in pullanda and sealed with the seal of MKS and seized vide memo Ex.PW13/H. It was also revealed that on the said mobile phone previously the connection was used with number 9891729306. On checking the call details of that number, it was found that just 10 minutes prior to the occurrence and also very close to that place, a call 183 was made to this number from a PCO having No.23682002. The said call details are Ex.PW17/G. During investigation, it was also revealed that apart from these two accused persons namely Chand Mohd. and Mohd. Amin Shakeel, other persons involved were Anees, Zafar Mirza and Qasim Mirza. Thereafter he moved an application for getting the TIP of Chand Mohd conducted for which he refused. Then he obtained police remand of accused Chand Mohd. on 23.3.2005 and he pointed out the place of occurrence vide memo Ex.PW13/J and complainant also identified this accused about which his supplementary statement was recorded. He also recorded the statement of some of the witnesses in whose name the telephone and electricity bills were issued and robbed from the complainant and recovered from bag. He has further stated that on 20.4.2005 accused Agha Zafar Mirza appeared in the Court and with the permission of Court he was interrogated and arrested vide arrest memo Ex.PW13/K and his disclosure statement Ex.PW13/L was recorded. On 22.4.2005 an application for TIP of accused Agha Jaffar Mirza was moved before the Court which was fixed for 30.4.2005. On 22.4.2005 complainant also handed over to him a complaint regarding threatening calls received on his mobile in which he was asked not to identify the accused during TIP. He has further stated 184 that on 30.4.2005 the TIP of the accused Agha Zafar Mirza was conducted in which complainant did not identify the accused. Thereafter one day police remand of accused Agha Jaffar Mirza was obtained and he also pointed out the place of occurrence. The complainant identified this accused and his statement in this regard was recorded. Thereafter the finger prints of accused Chand Mohd. Amin Shakeel were obtained and the finger prints of accused Anis Khan were collected from PS Jama Masjid and were sent to Finger Prints Bureau, Malviya Nagar for examination and to tally with the chance prints lifted from the spot and later on its report was collected which is Ex.PW17/H. CFSL report was also obtained which is Ex.PW17/J. He has identified the mobile phone of blue and silver colour of make NOKIA as Ex.P1, pistol, two fired cartridge case and eight used cartridges as Ex.P2 and P3, another pistol as Ex.PW4, bag containing Rs.2350/- ie. 4 GC notes of Rs.500/- each, 3 GC notes of Rs.100/- each and one GC note of Rs.50/- and eight bills as Ex.P5, another mobile phone make NOKIA as Ex.P6, two helmets as Ex.P7/1 and Ex.P7/2 and Scooter No. DL-7S-G- 2832 as Ex.P8 to be the same which were seized in this case.

15. PW-2 Sh. Lalit Kapoor is the complainant who has stated that on 17.2.2005 he was returning home on two wheeler scooter No.0652 and at about 8.50 pm when he was coming 185 from East Park Road, Filmistan for taking turn to his gali in Doriwalan, he saw three persons were standing in the gali. One of them asked him to stop the scooter and he was surrounded by those persons from all directions. At that time, he was carrying a bag containing bills of telephone, electricity, water, mobile and cash of Rs.2 lacs and one of those persons asked him to handover the bag which eh refused and thereafter one of them made fire with a pistol on the ground and other near his foot. The other person was also having pistol and third one was having knife who also snatched the bag from him. In the process, the scooter fell down and the person who snatched the bag from him, ran towards his gali. He tried to chase the person running with bag but could not succeed. One scooter, one mobile hone and the one pistol were found lying at the spot. He has further stated that he could not see the faces of the robbers nor he could identify them. He has not identified the accused persons to be the same persons who were present at the spot on that day. He has further stated that police reached the spot and took him to PS where his statement Ex.PW2/A was recorded. The police also seized the pistol, scooter, two helmets and one mobile which were lying at the spot. As this witness did not support the case of prosecution, he was cross examined at length by Ld. Addl. PP. Although in cross examination, he has 186 admitted that the crime team came to the spot and took the photographs and he had also gone to PHQ where at his instance, portraits of the offenders were prepared on the computer, however he has denied that on 23.3.2005 accused Chand Mohd. came to Gali No.3, Doriwalan and he identified him to be the same person who carried away his bag. He has also admitted that he had gone to Tihar for Test Identification Parade but he denied that he could not identify the persons involved in the occurrence because of the threatening call received from them. When the case property was shown to the witness by Ld. Addl. PP for State, he has not identified the bag containing cash, eight bills and mobiles phones to be the same which were robbed from him. He has further denied the suggestion given by Ld. Addl. PP that the accused persons, present in the Court, are the same persons who were involved in this occurrence.

16. On behalf of State, Ld. Addl. PP has contended that though the complainant has not identified the accused persons but the calls details of the mobile phones recovered in this case are sufficient to connect the accused persons with this case. Ld. Addl. PP has prayed for conviction of the accused persons.

17. On behalf of accused persons, ld. Defene counsels have contended that none of the accused has been identified by the complainant during TIP and he has also not supported the 187 case of prosecution. Ld. Defence counsels have prayed for acquittal of the accused persons.

18. After trial, all the accused are acquitted of the charge due to following reasons :-

In this case the place of occurrence is a thickly populated area but surprisingly none of the resident has witnessed the occurrence. Apart from that the test identification parade of the accused persons was conducted but the complainant Sh. Lalit Kapoor had not identified any of the accused to be the same person who committed the robbery. When the complainant appeared before this court and examined as PW-2, he has neither identified the NOKIA mobile phone to be the same which belonged to him nor the bag which was containing cash and the bills and allegedly robbed from him. Even the copies of the bills in the said bag have not been identified by the complainant to be the same which he had collected from the shop keepers for depositing in various departments.

In the instant case, none of the accused had been arrested from the spot and surprisingly none of them has been identified by the complainant during judicial TIP. Apart from that even the alleged recovered articles i.e. the bag, mobile phone and the copies of the bills have also remained unidentified 188 by the complainant. There being no other eye witness to the occurrence and complainant not supporting the case of prosecution at all, no conviction can be based on the statement of the police officials as only complainant could have identified the robbers. In the circumstances, I am of the opinion that prosecution has not been able to prove its case against the accused persons beyond reasonable doubt, hence all the four accused namely Chand Mohd., Mohd. Amin Shakeel, Agha Zafar Mirza and Mohd. Anis Khan are acquitted of the charge. Case property be confiscated to the State after the expiry of period of appeal, if any. File be consigned to Record Room.


Announced in the open Court

29.1.2009                           ( PRATIBHA RANI )
                                    ASJ-01(Central)/Delhi




                              189
         IN THE COURT OF SMT. PRATIBHA RANI,
         ASJ-01(CENTRAL), TIS HAZARI COURTS,
                       DELHI

                        ***

SC No.228/07

State             Vs     (1) Jai Chand
                             S/o Sh. Pummy Singh,
                             R/o H. No.172,
                             Village Khichri Pur,
                             Delhi.

                         (2) Daya Chand,
                             S/o Sh. Jagbir,
                             R/o H. No.177, Gali No.1,
                             Village Khichri Pur,
                             Delhi.

                         (3) Laxman,
                             S/o Sh. Hari Ram,
                             R/o H. No.D-20, T-Camp,
                             Village Khichri Pur,
                             Delhi.

                         (4) Ram Avadh (P.O.),
                             S/o Sh. Ram Dhir,
                             R/o 126, T-Camp,
                             Village Khichri Pur,
                             Delhi.


                         FIR No.134/02
                         Under Sec.392/397/411 IPC
                         PS : Hazrat Nizamuddin Rly.
                         Station

                         Date of Institution : 1.5.03
                         Arguments heard on : 29.1.09
                         Order pronounced on : 29.1.09



                         190
                               ***

JUDGMENT

Accused Jai Chand, Daya Chand, Laxman and Ram Avadh (PO) have been sent to face trial for the offences punishable under Sections 392/397/411/34 IPC. In brief the case of the prosecution is that on 20.10.2002 at about 12.00 pm the complainant Sh. Raj Bahadur was going to his village after collecting some money from one Sh. Ghanshyam and Ganeshi Lal and was present at Railway Station Hazrat Nizamuddin. He purchased the ticket of Mangla Express. In the meanwhile, he met two persons, one of them claimed himself to be employee of GRP Jhansi and another employed at some Petrol Pump. The person claiming himself to be from GRP Jhansi offered to take him without ticket and when they were talking, third person also came and said that his TATA Sumo was going to Jhansi which was belonging to Bank and whatever fare he was paying to Railway could be given to him and he could be travel by that Sumo and that the Sumo was parked at some distance which could be travelled in an auto who would charge only Rs.2/- per person. Thereafter the complainant alongwith those three persons sat in the TSR at about 12 noon and he was taken to bus stand Hazrat Nizamuddin, auto was stopped on road side and they started threatening him. One of those persons also took out 191 a knife and threatened to cut him in case he raise alarm. One another person snatched the bag from him and also took out the money which was lying in his pocket. They all the four robbed him on knife point and after pushing him down from the TSR, they ran away, however, he managed to note down the TSR number and thereafter he left for his village and did not report the matter to the police due to fear. He narrated the incident to his family members who advised him to lodge the report. He came to Delhi on 2.11.2002 for lodging the report and at the railway station he narrated the incident to ASI Mohar Singh and Constables Kavinder and Rattan Pal who started searching for that TSR and the persons who committed robbery. Then he pointed out to the police the TSR No. DL-1R-C-4839 and the two persons sitting in that TSR to be the same who committed robbery on knife point by snatching his bag. The two persons were apprehended by the police and their names were revealed as Jai Chand and Daya Chand. Jai Chand introduced himself as employed as Constable in GRP, Jhansi and Daya Chand to be the person who snatched the bag on the date of occurrence. On the basis of this statement, rukka was sent by ASI Mohar Singh and FIR No.134/02 was registered. Both the accused persons were interrogated and the other two accused persons were also apprehended. Their disclosure statements were also recorded 192 and after completion of investigation, charge sheet was filed against them for committing the offence punishable under Section 392. 397, 411, 34 IPC.

2. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

3. After hearing the prosecution as well as ld. Counsel for the accused persons, charges under Sec. 397, 411, 392 r/w 34 IPC were framed against the accused persons on 9.7.2004 to which they pleaded not guilty and claimed trial.

4. Prosecution has examined seven witnesses in all in support of its case. During trial accused Ram Avadh absconded and was declared PO vide order dated 6.2.2008. Remaining three accused persons have been examined under Section 313 CrPC in which they have denied the case of the prosecution and stated that they were lifted by the police of PS Hazrat Nizamuddin and kept them in illegal detention for 2-3 days and later on falsely implicated in this case. They have stated that they are innocent. They have not led any evidence in their defence.

5. PW1 HC Devi Ram is the Duty Officer who has proved the copy of FIR as Ex.PW1/A.

6. PW4 Ghanshyam, who was known to the complainant Raj Bahadur, is a formal witness and he has stated that he gave Rs.5000/- as loan to Raj Bahadur and Rs.200/- for giving that 193 money to his (PW4) mother without any written document. He has also stated that he accompanied PW5 Raj Bahadur to Railway Station and in his presence Raj Bahadur purchased the railway ticket and thereafter he left with 2-3 persons whom he cannot identify.

7. PW6 Ganeshi Lal is also a formal witness. He has stated that Raj Bahadur belongs to his village and on 18.11.2002 he took Rs.15000/- from him for constructing his house and returned the same to him.

8. PW7 ASI Mohar Singh has stated that on 25.11.2002 he was posted at PS Hazrat Nizamuddin and was on patrolling duty with Ct. Kavinder and Ct. Rattan Pal. At about 9.15 PM one person namely Raj Bahadur came to him and made complaint about the incident of robbery vide his statement Ex.PW5/A on which he made his endorsement Ex.PW7/A and sent Ct. Kavinder for registration of the case. Ct. Kavinder returned to the spot after getting the case registered alongwith copy of FIR Ex.PW1/A. PW7 has further stated that at the pointing out of PW5 Raj Bahadur, he apprehended accused Jai Chand and Daya Chand from auto stand near the railway station when both the accused were sitting in a auto. They made disclosure statement Ex.PW2/B and F. Thereafter accused Jai Chand led them to his house at Khichri Put and from a almirah 194 he produced Rs.1500/- in the denomination of Rs.100/- each which were seized by him vide memo Ex.PW2/G. Thereafter they went to the house of accused Daya Chand and from an iron box he produced Rs.1600/-, three notes in the denomination of Rs.500/- each and one note in the denomination of Rs.100/- and one thela of black colour which were seized vide memo Ex.PW2/H. These two accused persons were also arrested vide arrest memos Ex.PW5/D and E and their personal search was conducted vide memos Ex.PW2/A and B. Thereafter they returned to the PS and deposited the case property in the malkhanna and put the accused persons in lock up. On the next day he alongwith the complainant went to Khichri Pur in search of remaining two accused persons namely Laxman and Ram Avadh as their addresses were disclosed by accused Jai Chand and Daya Chand in their disclosure statements. These two accused persons were also arrested from their houses and identified by the complainant. They also made disclosure statements Ex.PW3/C and D. Both these accused also got recovered Rs.1000/- each in the denomination of Rs.100/- each from iron boxes from their respective houses which were seized vide memos Ex.PW3/E and F. Accused Laxman and Ram Avadh were also arrested vide arrest memos Ex.PW5/B and C and their personal search memos Ex.PW3/A and B were also 195 prepared. PW7 has identified the currency notes recovered from accused Jai Chand as Ex.P1, from accused Daya Chand as Ex.P2 and thela as Ex.P3, from accused Laxman as Ex.P4 and from accused Ram Avadh as Ex.P5. He has also stated that the TSR was also seized vide memo Ex.PW3/J on 25.11.2002 and he also prepared site plan Ex.PW7/B of the place of occurrence. He has also stated that accused Jai Chand and Daya Chand also pointed out the spot and memos Ex.PW7/C and D to this effect were also prepared by him.

9. PW2 Ct. Kavinder and PW3 ASI Satyawan Singh were with IO during the investigation of this case and both these witnesses have deposed on identical lines.

10. PW5 Sh. Raj Bahadur has stated that on 20.11.2002 at about 11.00 am he was going to his house and reached Hazrat Nizamuddin Railway Station, purchased a ticket for Bela Taal Station and at that time he was having Rs.20,400/- with him. He proceeded towards the platform to board the train. On the way a person came to him and told him that he had missed his train for Jhansi and continued talking to him. Two more persons came there and offered a lift to him in their TATA Sumo upto Jhansi. He also thought that his train had missed and thereafter he alongwith those three persons took a TSR to reach the place where TATA Sumo was parked. After covering some distance, 196 one of those person placed a knife on his side and robbed him of Rs.20,400/-. He was left on the road by those persons but he managed to note down the number of TSR. He reached to the house of his brother in Vaishali and narrated the incident.

11. PW5 has further stated that he alongwith his brother reached PS Hazrat Nizamuddin but his report was not registered on the same day, however, his report was registered after 3-4 days. Thereafter he accompanied the police in a police vehicle and reached Khichri Pur by the number of TSR. The TSR was traced at Khichri Pur and two persons, out of those persons who robbed him, were nabbed from the same TSR in Khichri Pur, however, he did not know their names. His statement Ex.PW5/A was recorded by the police. He has further stated that police informed him that Rs.1500/-, Rs.1600/-, Rs.1000/- and Rs.1000/- were recovered from those four persons. He has identified the case property as Ex.P1 to P5 to be belonging to him. As this witness did not fully support the case of prosecution, he was cross examined by ld. Addl. PP for the State and during cross examination when words were put into his mouth, he admitted that the police recovered the amount from the four accused persons in his presence. He also admitted his signature on the seizure memo vide which money was seized as well as the disclosure statements of the accused persons. He has 197 also identified his signature on the arrest memos of the accused persons and admitted it as correct that all the four accused persons were arrested in his presence.

12. After trial, accused Jai Chand, Daya Chand and Laxman are acquitted of the charge due for following reasons :-

In the instant case, the testimony of complainant is full of contradictions regarding the manner how the occurrence had taken place and thereafter also when he came to Delhi to report the matter to the police and the proceedings conducted in the case thereafter. Not only the statement of the complainant PW-5 Sh. Raj Bhahdur but even the statement of police officers associated with the investigation i.e. Pw-2 Ct. Kavinder, PW-3 ASI Satyawan Singh, PW-7 ASI Mohar Singh, the Investigating Officer is full of contradictions on every aspect right from the stage of lodging the report till the apprehension of the accused and recovery of cash from their possession. Even the manner in which the accused persons have been apprehended raises doubt about the truthfulness of the prosecution version.

First of all, I deal with the statement of PW-5 Sh. Raj Bahadur, the complainant. In the complaint itself, he has mentioned that he had purchased a ticket from Railway Station and was going to board Mangla Express to go to his native place when he was taken in a TSR to travel in Sumo and dropped on 198 the way. First of all when the complainant had purchased a ticket and he was asked to pay the same fare for going to Jhansi in TATA Sumo with strangers, there was hardly any occasion for him to accompany them without getting his ticket cancelled and take the refund. He has nowhere stated that he first got his ticket cancelled and then accompanied the accused persons, secondly TATA Sumo was parked at some distance for which he was required to travel in a TSR, that would have raised suspicion in the mind of complainant to believe their version especially when he was already holding a ticket for going to his native place. Another fact is that as per the complainant, he was pushed down from the TSR by the accused person but does not say that he received any injury nor he immediately reported the matter to the police. Again so far as noting of the number of the TSR is concerned, the complainant has not claimed that he was carrying any pen or paper and even if it is assumed for the sake of arguments that number was noted in the memory then it has come in his statement that he has studied only upto 2nd class and did not tell the police the complete number of the TSR especially the English letters. The TSR involved in this case bear the registration number DL-1R-C-4839 and when the complainant did not remember this number then how on the basis of No.4839, the TSR could be traced out by the police. There are major 199 contradictions in the version of police witnesses and that of complainant about the manner in which the accused has been apprehended. As per the complainant, for 3-4 days, his complaint was not recorded at Nizamuddin Police Station and that he accompanied the police in a police vehicle and reached Khichri Pur by the number of TSR. Again the question arises that if no report was lodged by the police for 3-4 days then how on the basis of number that too incomplete, the TSR could be traced in Khichri Pur and two persons i.e. accused Jai Chand and Daya Chand could be arrested. However, the statement of PW-7 ASI Mohar Singh - the IO is to the effect that on 25.11.2002 he was on patrolling duty with Ct. Kavinder when at about 9.15 pm one person came and told his name as Raj Bahadur and made statement Ex.PW5/A on the basis of which he get the FIR registered and at his pointing out, apprehended accused Jai Chand and Daya Chand from the Auto Stand near Railway Station when they were sitting in the said auto. Thus, as per statement of PW-2 Ct. Kavinder, he alongwith ASI Mohar Singh and Ct. Rattan Pal was present at circulating area of Hazrat Nizamuddin Railway Station and they were checking the vehicles when complainant came and narrated the incident and also informed that two persons involved in this occurrence were sitting in the TSR. Thereafter they went to the TSR and on the 200 pointing out of complainant, apprehended accused Jai Chand and Daya Chand. Thus, it is clear that all these three witnesses have given entirely different version regarding the manner in which the accused persons have been apprehended. It is also relevant to mention that only cash of Rs.1500/-, Rs.1600/-, Rs.1000/- and Rs.1000/- have been recovered from the accused persons and hardly any mark of identification could be there on the currency notes. No departure entry has been placed on record by ASI Mohar Singh to show his presence at Hazrat Nizamuddin Railway Station at the time when complainant allegedly met him nor he has stated that he was on duty to check the vehicles. The complainant himself did not remember the complete number of the TSR and on the basis of incomplete number, it was not possible to trace the TSR. The complainant has nowhere stated that he saw the accused persons sitting in the TSR and then reported the matter to the police and got the accused Jai Chand and Daya Chand arrested thus falsifying the version of ASI Mohar Singh (PW-7). The entire prosecution case becomes doubtful especially in view of the fact that though the currency notes are stated to have been recovered from the respective houses of the accused persons, not even a single witness has been joined either at the Auto Stand or at the time of raid at the house of the accused persons. The material contradictions in the 201 testimony of PW-2 Ct. Kavinder, PW-7 ASI Mohar Singh and PW-5 Sh. Raj Bahadur go to the root of the case and makes the entire prosecution story doubtful. In the circumstances, accused Jai Chand, Daya Chand and Laxman are acquitted of the charge. Against accused Ram Avadh, file be consigned to Record Room under Sec.299 CrPC.


Announced in the open Court

29.1.2009                           ( PRATIBHA RANI )
                                    ASJ-01(Central)/Delhi




                              202
         IN THE COURT OF SMT. PRATIBHA RANI,
          ADDL. SESSIONS JUDGE-01(CENTRAL),
              TIS HAZARI COURTS, DELHI

SC No.24/08

State                Vs      (1) Awadh Pal,
                             S/o Sh. Anwar Singh,
                             R/o TA-13, Gali No.5,
                             Baljeet Nagar,
                             New Delhi.

                             (2) Pushpender,
                             S/o Sh. Nain Sukh,
                             R/o TA-13, Gali No.5,
                             Baljeet Nagar, New Delhi.

                             (3) Praveen Kumar,
                             S/o Sh. Lakhan Singh,
                             R/o TA-13, Gali No.5,
                             Baljeet Nagar, New Delhi.

                             FIR No.373/07
                             U/S : 308/34 IPC
                             PS : Patel Nagar

                             Date of Institution : 16.01.08
                             Arguments heard on : 4.2.09
                             Order pronounced on : 9.2.09

                             ***
JUDGMENT

Accused Awadh Pal, Pushpender and Praveen Kumar have been sent to face trial for the offence punishable under Sec.308/34 IPC on the basis of statement made by injured Sh. Arun Kumar. As per complaint Ex.PW3/A, injured Arun Kumar alongwith his brother Sh. Lal Bahadur used to live as tenant at 203 Baljeet Nagar, Patel Nagar, Delhi and were also employed as Driver by one Sh. Saranjeet Singh. Arun Kumar was employed for driving tempo No.DL-1L-E-4054 which was deployed at Delhi Milk Scheme, Shadi Pur Depot for supplying the milk. On 23/24.6.2007 at about 11.30 pm, when he alongwith the aforesaid vehicle reached DMS Plant, Shadi Pur and parked the vehicle at the platform, his brother Sh. Lal Bahadir who was on duty on another vehicle, was also waiting at the platform for getting supply of milk. At that time, accused Awadh Pal alongwith his helpers i.e. co-accused Puspender and Praveen Kumar came near him and asked to remove his vehicle which was opposed by him. On this accused Awadh Pal started abusing and beating him. His helpers i.e. co-accused Pushpender and Praveen Kumar also joined in beating and at that time, accused Awadh Pal took out a danda from his vehicle and hit the same on his head. Sh. Lal Bahadur, brother of the complainant also came there and intervened but he was also threatened by the accused persons. After receiving the danda blow, he became unconscious. On the basis of this statement, case FIR No.373/07 PS Patel Nagar was registered and during investigation, all the three accused persons were apprehended and interrogated. After completion of investigation, chargesheet was filed against them for the offence punishable under 204 Sec.308/34 IPC.

2. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

3. After hearing on the point of charge, all the three accused were charged on 10.3.2008 for the offence punishable under Sec.308/34 IPC to which they pleaded not guilty and claimed trial.

4. Prosecution has examined nine witnesses in all in support of its case. All the three accused persons have also been examined under Section 313 CrPC in which they have denied the case of the prosecution and stated that they are innocent and falsely implicated in this case.

5. I have heard Sh S.C. Sharma, Addl PP for the State and Sh. S.N. Kalra, counsel for all the accused and also gone through the record carefully.

6. Out of the nine witnesses produced by the prosecution, PW-1 Sh. Saranjeet Singh is the owner of the vehicle on which the injured Sh. Arun Kumar was engaged as Driver. His statement is to the effect that Arun Kumar was employed by him as Driver on TATA-407 which was used for supply of DMS Milk at DMS Plant, Shadi Pur and that he was informed by Sh. Lal Bahadur, brother of Arun Kumar that Arun Kumar has received injuries in a quarrel and was lying unconscious at DDU 205 Hospital. He reached DDU Hospital and thereafter Arun Kumar was shifted to Safdarjung Hospital. He has stated that he did not know who has caused injuries to Arun Kumar.

7. PW-4 Ct. Rakesh Kumar had accompanied HC Sunil Kumar (PW-7) to whom DD No.48-A, copy of which is Ex.PW4/A, was marked. He has stated that when they reached DMS Plant, Shadi Pur, they came to know that injured had already been removed to DDU Hospital by PCR. Then they reached DDU Hospital and HC Sunil Kumar obtained the MLC of injured and also recorded the statement Ex.PW3/A of injured and handed over the rukka to him and he got the case registered at PS Patel Nagar. After registration of the case, further investigation was entrusted to ASI Raj Kumar. PW-7 HC Sunil Kumar has also deposed on the identical lines.

8. PW-6 HC Pratap Singh is the Duty Officer who has recorded the FIR and proved the copy of the same as Ex.PW6/A.

9. PW-8 ASI Dhyan Chand was on duty at PCR Van (P-11). He has stated that on receipt of call about a quarrel at DMS Plant, Shadi Pur, he reached the spot and removed the injured Arun Kumar to DDU hospital.

10. PW-2 Sh. Lal Bahadur, brother of the injured has stated that he was working as a Driver in DMS and that on 23.6.2007 he had parked his vehicle at the platform for receiving 206 the supply of milk. His brother Arun Kumar also reached there alongwith the vehicle driven by him same purpose the milk and that they both drive the vehicles of Sardarji Sh. Saranjeet Singh and were his employees. He has further stated that when he left that place to bring the papers of milk, somebody informed him that a quarrel was going on between Awadh Pal and Arun Kumar. He reached there and saw that Awadh Pal had hit on the head of Arun with a danda and Arun fell down. When he tried to intervene Amit Pal and Parveen, associates of Awadh Pal ran towards him to give beating. In the meantime, PCR arrived there on being informed by the security personnel of DMS and his brother was taken to DDU Hospital by PCR and from there, his brother was shifted to Safdarjung Hospital. He has identified the accused Awadh Pal correctly but accused Pushpender was identified as Parveen and accused Parveen as Amit. As this witness did not fully support the case of prosecution, he was cross examined by ld. Addl. PP for State on the point of identity of the two accused persons and only when pointed out by ld. Addl. PP, he could identify the accused persons.

11. PW-3 Sh. Arun Kumar, the injured/complainant has stated that he was driver by profession and driven the vehicle i.e. TATA Tempo No.DL-1L-E-4054 of Sh. Saranjeet Chaddha which was engaged with DMS Depot, Shadipur for supply of 207 milk. On the night of 23/24.7.2007, he had put his vehicle on the platform for loading the milk in the tempo and at about 11.30 pm accused Awadh Pal, Praveen and Pushpender came there and started quarreling with him. He knew Awadh Pal, accused present in the Court today prior to the incident as he was also in the same profession and engaged at DMS for supply of milk and that the other two persons were not known to him at that time. He has further stated that even on that day, he could not identify them and could not say whether the other two accused persons present in the Court were with the accused Awadh Pal on that day. PW-3 Sh. Arun Kumar has further stated that the quarrel started when Awadh Pal asked him to remove his vehicle for which he refused as he came before Awadh Pal. Thereafter accused Awadh Pal abused him and hit on his head with a danda. He became unconscious and he did not know whether the other two accused also caused any injury to him. When he gained consciousness he found himself admitted in the hospital. Police met him in the hospital and recorded my statement Ex.PW3/A. He has identified the danda Ex.P1 to be the same which was hit on his head by the accused. As he also did not fully support the case of prosecution, he was cross examined by Ld. Addl. PP. In his cross examination by Ld. Addl. PP, he also did not state anything against accused Praveen and Pushpender nor identified 208 them to be the same person who caused injuries to him. He has only made statement against accused Awadh Pal with whom a quarrel had taken place about removing of the vehicle and that Awadh Pal had hit him on his head with a danda as a result of which he became unconscious.

12. PW-5 Ct. Maha Sheel was with ASI Raj Kumar (PW-

9) to whom the further investigation was entrusted. He has stated that on 24.6.2007 he alongwith ASI Raj Kumar went to Baljeet Nagar in search of the offenders and at house No.TA-13, Baljeet Nagar, accused Awadh Pal was found present and he was arrested vide arrest memo Ex.PW5/A and his personal search was conducted vide memo Ex.PW5/B. Thereafter accused Awadh Pal was brought to the PS. PW-5 Ct. Maha Sheel has further stated that the other accused persons present in the Court were also arrested vide arrest memos Ex.PW5/C and D and their personal search memos Ex.PW5/E and F were also prepared and that no public person was present at the time of arrest to identify the accused persons. This witness was cross examined by ld. Addl. PP for State and during cross examination, he has he could not say if Lal Bahadur, brother of complainant identified all the three accused persons or not, however one person had identified the accused persons but he did not know his identity. He has admitted that accused Awadh Pal got recovered one danda from 209 the back side of the door of his room which was seized vide memo Ex.PW5/G.

13. PW-9 SI Raj Kumar has stated that on 24.6.2007 the duty officer informed him to reach the spot so he alongwith Ct. Maha Sheel went to the spot i.e. near Milk Booth, DMS Plant, Shadi Pur, Delhi where HC Sushil and Ct. Rakesh met them. Ct. Rakesh handed over to him the original rukka and copy of FIR and HC Sushil handed over to him the documents prepared by him and the MLC of injured Arun. He has further stated that he tried to search the accused persons and he alongwith Ct. Maha Sheel went to the house of the accused Awadh Pal where he was found present. Accused Awadh Pal was interrogated and he made disclosure statement Ex.PW9/A. Accused Awadh Pal also produced one danda which was used in the crime. The said danda was kept in cloth pullanda, sealed with the seal of RK and seized vide memo Ex.PW5/G and seal after use was handed over to Ct. Maha Sheel. Thereafter he prepared the site plan Ex.PW9/B at the instance of brother of injured. Accused Awadh Pal was arrested vide arrest memo Ex.PW5/A and his personal search was conducted vide memo Ex.PW5/B. He has further stated that when they were returning to the PS, accused Pushpender and Praveen were also arrested at the instance of Lal Bahadur vide arrest memos Ex.PW5/C and D and their personal 210 search memos Ex.PW5/E and F were also prepared. All the three accused persons were also got medically examined at DDU Hospital. He recorded the statement of witnesses and after completion of investigation filed the charge sheet.

14. On behalf of State, Sh. S.C. Sharma, Addl. PP has contended that so far as accused Awadh Pal is concerned, from the statement of injured Sh. Arun Kumar as well as his brother Sh. Lal Bahadur it stands proved that he had a quarrel with PW-3 Sh. Arun Kumar during which he alongwith his co-accused gave a danda blow on the head of the complainant thereby making him unconscious and this statement of the complainant stands corroborated from the statement of his brother i.e. PW-2 Sh. Lal Bahadur, hence all the three accused persons are liable to be held guilty for the reason that Sh. Lal Bahadur has correctly identified all the three accused persons who are also named in the complaint.

15. On behalf of accused persons, Sh. S.N. Kalra, Advocate has contended that the evidence of the complainant Sh. Arun Kumar and his brother Sh. Lal Bahadur is not sufficient to prove the guilt of the accused persons beyond reasonable doubt as both of them have not supported the case of prosecution and were declared hostile. It has been further contended that presence of Sh. Lal Bahadur at the spot is highly 211 doubtful and so far as complainant/injured Sh. Aun Kumar is concerned, he has not deposed anything against accused Pushpender and Praveen Kumar and in these circumstances, his statement regarding accused Awadh Pal giving beating to him is also doubtful and all the three accused persons be acquitted.

16. I have considered the submissions made by Sh. S.C. Sharma, Addl. PP for the State and Sh. S.N. Kalra, ld. Counsel for the accused persons. So far as accused Pushpender and Praveen Kumar are concerned, it has come in the statement of complainant Sh. Arun Kumar himself that the quarrel had taken place only with accused Awadh Pal and the two other accused persons namely Pushpender and Praveen Kumar were not even known to him at that time and even on the date when his statement was recorded in the Court, he could not identify them to be the same who had given beating to him. Even during cross examination by Ld. Addl. PP for State, the injured Sh. Arun Kumar has specifically denied the suggestion that he is not identifying these two accused persons as he has been won over by them. Presence of PW-2 Sh. Lal Bahadur at the spot is highly doubtful for the reason that in the rukka itself, it is mentioned that no eye witness was found present either at the spot or in DDU Hospital. Even Sh. Arun Kumar has been removed to DDU Hospital by PCR Van. Had his brother Sh. Lal Bahadur 212 been present at the spot, he would have accompanied the injured to the hospital. In the circumstances, testimony of PW-2 Sh. Lal Bahadur regarding role attributed to accused No.2 and 3 namely Pushpender and Praveen Kumar has to be disbelieved.

17. So far as accused Awadh Pal is concerned, the statement of injured Sh. Arun Kumar (PW-3) is sufficient to prove his guilt beyond any reasonable doubt. Undisputedly the injured Arun Kumar (PW-3) and accused Awadh Pal were working as Driver at DMS Plant for supply of milk and the quarrel between them also took place as accused Awadh Pal wanted to take the supply before Arun Kumar who refused to move his vehicle as he was already standing there. There is no dispute about the identity of the accused Awadh Pal as he has also been taken for medical examination at the same time and he was also medically examined at the same hospital. The manner in which PW-3 Sh. Arun Kumar received injury on a vital part i.e. head after being hit by accused Awadh Pal with a danda which he took out from his vehicle, is sufficient to prove the ingredients of Section 308 IPC i.e. attempt to commit culpable homicide not amounting to murder. The doctor has opined the nature of injuries as grievous and due to the nature of the injuries suffered by PW-3 Sh. Arun Kumar, he was transferred to higher centre by the Surgeon of SR-II, Surgery Ward, DDU Hospital. 213 The MLCs of the injured as well as of accused Awadh Pal show that both of them were taken to DDU Hospital by PCR Van (P-

11) so the involvement of accused Awadh Pal in the present case being the person who caused injury with a danda on the head of Arun Kumar stands proved beyond any reasonable doubt, hence accused Awadh Pal is held guilty for the offence punishable under Sec.308 IPC and convicted accordingly.

18. In view of above discussion, accused Pushpender and Praveen are acquitted of the charge, however accused Awadh Pal is held guilty for the offence punishable under Sec.308 IPC and convicted accordingly.

Announced in the open Court ( PRATIBHA RANI ) ASJ-01(Central)/Delhi 09.02.2009 214 IN THE COURT OF SMT. PRATIBHA RANI, ADDL. SESSIONS JUDGE-01(CENTRAL), TIS HAZARI COURTS, DELHI SC No.24/08 State Vs Awadh Pal, S/o Sh. Anwar Singh, R/o TA-13, Gali No.5, Baljeet Nagar, New Delhi.

FIR No.373/07 U/S : 308 IPC PS : Patel Nagar Arguments heard on : 11.2.09 Order pronounced on : 11.2.09 *** ORDER ON SENTENCE I have heard the convict Awadh Pal through his counsel Sh. S.N. Kalra, Advocate on the point of sentence. It has been submitted by Sh. S.N. Kalra, Advocate that convict is the first offender and the only bread earner of his family having two minor children, wife and parents to support. It has been submitted that in view of no previous involvement, a lenient view may be taken

2. Taking into consideration that the quarrel in which the complainant suffered injuries took place without any premeditation and the weapon of offence is only a danda which was lying in the vehicle of convict Awadh Pal and only one 215 blow has been given, it would meet the ends of justice if convict Awadh Pal is sentenced to undergo the imprisonment already undergone by him during investigation and trial of this case and to pay a fine of Rs.10000/-.

3. Accordingly, the convict Awadh Pal is sentenced to undergo imprisonment for the period already undergone by him and to pay a fine of Rs.10,000/- for the offence punishable under Sec.308 IPC. In default of payment of fine, he shall undergo simple imprisonment for three months. Out of the fine, if realised, Rs.5000/- be paid as compensation to the injured. Case property be confiscated to the State after the expiry of period of appeal, if any. File be consigned to Record Room.


Announced in the open Court

11.2.2008                            ( PRATIBHA RANI )
                                     ASJ-01(Central)/Delhi




                               216
         IN THE COURT OF SMT. PRATIBHA RANI,
          ADDL. SESSIONS JUDGE-01(CENTRAL),
              TIS HAZARI COURTS, DELHI

SC No85/08.

State                Vs      Deepak Saxena,
                             S/o Sh. Shiv Kumar,
                             R/o H. No.314-B, Jai Vihar,
                             Nazafgarh, Delhi.

                             FIR No.331/07
                             U/S : 363/328/376/506 IPC
                             PS : Anand Parbat

                             Date of Institution : 30.8.2008
                             Arguments heard on : 11.2.09
                             Order pronounced on : 11.2.09

                             ***
JUDGMENT

Accused Deepak Saxena has been sent to face trial for the offence punishable under Sec.363/328/376/506 IPC on the basis of statement made by Smt. Shamima, mother of the prosecutrix (name of the prosecutrix withheld to conceal her identity). Her complaint is to the effect that on 10.12.2007 at about 4.00 pm her daughter, aged about 15 years, had gone to take water from Municipal Tap but she did not return regarding which she had also lodged missing report. It is further mentioned in the complaint that she alongwith her daughter was working in a factory at Gali No.1 where accused Deepak Saxena was also working and she came to know that accused Deepak 217 Saxena was also missing from the day her daughter was missing. She made suspicion on Deepak Saxena behind the missing of her daughter. On the basis of this complaint, FIR No.331/07 under Sec.363 IPC, PS Anand Parbat was registered against accused Deepak Saxena and efforts were made to trace out the accused and prosecutrix. On 25.12.2007 Sh. Shiv Kumar, father of the accused produced the prosecutirx in PS Anand Parbat and she was got medically examined at DDU Hospital and her statement under Sec.164 CrPC was also got recorded. On the basis of medical report and statement of prosecutrix, Sec.376/328/506 IPC were also added. During investigation, accused Deepak Saxena was arrested and after completion of investigation, chargesheet was filed against him for the offences complained of.

2. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

3. After hearing on the point of charge, accused was charged on 25.10.2008 for the offence punishable under Sec.363/366/376 IPC to which he pleaded not guilty and claimed trial.

4. Prosecution has examined Sh. Tirath Singh as PW-1 who has stated that he was doing the business of manufacturing gaskets under the name & style Punjab Gasket Industries 218 situated at Anand Parbat and that one Shiv Kumar was working in his factory who left the job about 3-4 months ago from that day (his statement was recorded on 16.12.2008). He has further stated that no lady was working in his factory and that about 6-7 months prior to that date, police came to him and made inquiries about Shiv Kumar and accused Deepak. Police also asked him whether Shiv Kumar was working with him or not and he told the police that Shiv Kumar was not reporting for his job. Police also did not tell him why they were making inquiry about Shiv Kumar and Deepak and police did not record his statement. As this witness did not support the case of prosecution, he was cross examined at length by ld. Addl. PP for State but could not extract anything incriminating against the accused. During cross examination by ld. Addl. PP for State, he has denied the suggestion that accused Deepak also used to work in his factory alongwith his father Shiv Kumar and that one Shamima and her daughter Sonia were also working in his factory from September, 2007. He has also denied that Sonia, Shamima, Shiv Kumar and accused Deepak did not report for the work since December, 2007 and volunteered that Shamima and Sonia never worked in his factory. PW-1 Sh. Tirath Singh has further denied the suggestion that on his inquiry, Shiv Kumar told him that Deepak had taken Sonia to Surat and he had brought Sonia to 219 Delhi and produced her before the police and that whereabouts of Deepak could not be ascertained. He has further denied the suggestion that on 2.7.2008 police came to him and made inquiry from him and asked him to go to Nazafgarh at the house of Deepak on which he alongwith the police went to the house of Deepak situated at Nazafgarh where Deepak met him and on his identification, police arrested Deepak. He has stated that police obtained his signature only on one paper which was half written and that he did not read that paper before signing as he was not having his spectacles with him at that time and that he had not asked the police to read over that paper to him before obtaining his signature. He has admitted his signature at point-A on arrest memo and personal search memo Ex.PW1/A and B. He has denied the suggestion that he had been won over by the accused and that is why, he was not disclosing the true facts and that he was deposing falsely intentionally that no lady was working in his factory or that Shamima and her daughter Sonia were not working in his factory.

5. In this case, prosecutrix and her mother Shamima are not traceable and as per report on the summons, they have left the given address one year back and shifted to some unknown place. IO W/ASI Sushila has stated that despite her best efforts, both these witnesses are not traceable. The present case is under 220 Sec.363/328/376 IPC based on the testimony of these two public witnesses who are not traceable and in the chargesheet itself, it is mentioned that for ascertaining the bony age of prosecutrix, her mother was asked to produce her but she was not produced and on further inquiry it was revealed that prosecutrix and her mother have left for some unknown place. No fruitful purpose would be served by examining the police officials and doctors as prosecutrix and her mother remained untraceable, hence PE was closed by order of the Court. As there is no incriminating evidence on record which could be put to the accused, his statement u/s 313 CrPC was also dispensed with.

7. Taking into consideration that PW-1 Sh. Tirath Singh did not support the case of prosecution and prosecutrix and her mother are not traceable and nothing incriminating has come on record against the accused Deepak in the statement of PW-1 Sh. Tirath Singh, he is acquitted of the charge. Case property be confiscated to the State after the expiry of period of appeal, if any. File be consigned to record room.


Announced in the open Court

11.2.2008                             ( PRATIBHA RANI )
                                      ASJ-01(Central)/Delhi




                                221
         IN THE COURT OF SMT. PRATIBHA RANI,
         ADDL. SESSIONS JUDGE-01(CENTRAL),
              TIS HAZARI COURTS, DELHI

SC No.171/07

State                Vs       Dharmender Aggarwal,
                              S/o Sh. Ram Babu Aggarwal,
                              R/o 28, Guru Anand Nagar
                              Extn., Laxmi Nagar, Delhi.

                              FIR No.512/05
                              U/S : 308/323 IPC
                              PS : Pahar Ganj

                              Date of Institution : 28.9.06
                              Arguments heard on : 19.2.09
                              Order pronounced on : 20.2.09
                              ***
JUDGMENT

Accused Dharmender Aggarwal has been sent to face trial for the offence punishable under Section 308/323 IPC with the allegation that on 21.10.05 at about 4.20 pm at CF road, near Prajapati Shiv Mandir, Pahar Ganj he caused injury on the person of Sh. Keshav Chand and Rajinder Kumar with stone with such intention and under such circumstances that if by that act, had he caused their death, he would have been guilty of culpable homicide not amounting to murder. Matter was reported to the police. Police reached the spot and got the injured persons medically examined and accused Dharmender Aggarwal was arrested. After completion of investigation, charge sheet was filed against the accused for the offence 222 complained of.

2. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

3. During trial, accused was charged on 9.4.2007 for the offence punishable under Sec.308 IPC and to which he pleaded not guilty and claimed trial.

4. Prosecution has examined six witnesses in all in support of its case. Accused has also been examined under Section 313 CrPC in which he has denied the case of the prosecution and stated that he is innocent and falsely implicated in this case. Accused has not led any evidence in his defence.

5. I have heard Addl PP for the State and ld. Counsel for the accused and also gone through the record carefully.

6. Out of the six witnesses examined by the prosecution, PW-1 ASI Sumer Chand is the Duty Officer who has recorded the FIR of this case and proved the same as Ex.PW1/A, PW-2 Ct. Parvinder Singh was working as DD Writer on the date of occurrence and recorded the DD No.20 Ex.PW2/A regarding this occurrence. PW-5 HC Roop Kishore was entrusted with DD No.20 Ex.PW2/A and he alongwith Ct. Ranvir reached the spot and on coming to know that injured persons had already been removed to LHMC by PCR, they reached the hospital and collected the MLS of the injured. In the meantime, ASI Mool 223 Chand also reached there to whom he handed over both the MLCs. ASI Mool Chand recorded the statement injured Rajinder Kumar and sent the rukka for registration of the case. PW-6 Dr. Girish Shastri, CMO, LHMC has identified the signature and handwriting of Dr. Babita on the MLCs of Keshav Chand and Rajinder Ex.PW6/A and B respectively who has prepared the same. He has also identified the handwriting of Dr. Nidhi on the MLC of Keshav Chand at point-X to X regarding nature of injuries. He has stated that Dr. Babita and Dr. Nidhi have left the services of the hospital now.

7. PW-3 Sh. Keshav Chand, the injured has stated that he used to sell shoes on the patri near Prajapati Mandir, C.F. Road and that on 21.10.2005, at about 4.30 pm when he was present there, the accused present was giving beatings to Rajinder who also used to sell Kachori on patri. When he intervened, the accused Dharmender hit with a stone on his head and he sustained injury and blood also started oozing out from the injury. Someone informed the police by dialing '100' and PCR reached the spot and got him removed to Lady Hardinge Hospital. After getting treatment, he was taken to the Police Post and his statement was recorded.

8. PW-4 Sh. Rajinder, another injured has stated that he used to sell kachori on the patri near Prajapati Mandir, C.F. 224 Road and on 21.10.2005, at about 4.30 pm the accused, who was under the influence of liquor, came ahead of him. He asked the accused to be on one side on which he (accused) started abusing him (PW-4). He has further stated that when he objected, the accused started giving beatings to him by fist blows. Keshav Chand, who used to sell shoes on the patri, came to save him and when he (Sh. Keshav) requested the accused not to beat him (PW-4), the accused lifted a stone and hit Kesar Chand on his head due to which he started bleeding. Some other associates of the accused also reached there. Someone informed the police by dialing '100' and PCR reached the spot and removed Kesar Chand to Lady Hardinge Hospital. He was also taken to the hospital where he was medically examined. His statement Ex.PW4/A was recorded by the police.

9. In the instant case, PW-3 Sh. Keshav Chand and Pw-4 Sh. Rajinder who are the injured both have stated that accused Dharmender was under the influence of liquor when he stood in front of the place where PW-4 Sh. Rajinder used to sell 'kachori' and that when PW-4 Sh. Rajinder objected and asked the accused to move ahead, he gave beating to Rajinder and when another person i.e. PW-3 Sh. Keshav chand who also used to sell shoes on patri, intervened, accused hit him with a stone and both of them were removed to LNJP hospital by PCR. The MLCs 225 Ex.PW6/A and B of both the injured persons show that both of them received simple injuries. None of these material have been cross examined on this aspect except that a suggestion has been given. It is not the case of the accused that he had any enmity with accused persons which could be a reason to falsely implicate him in this case. As the testimony of PW-3 Sh. Keshav Chand and PW-4 Sh. Rajinder on the aspect that accused had caused injuries to them when he was asked to moved from in front of the 'Kachori' shop of Pw-3 Rajinder, the opinion of the doctor on the nature of injuries being simple, I am of the view that the case proved against the accused is only for the offence punishable under Sec.323 IPC. Taking into consideration that nature of injuries suffered by both the injured persons is simple, the accused Dharmender Aggarwal is held guilty for the offence punishable under Sec.323 IPC and convicted accordingly.


Announced in the open Court

20.2.2009                        ( PRATIBHA RANI )
                                 ASJ-01(Central)/Delhi




                                 226
         IN THE COURT OF SMT. PRATIBHA RANI,
         ADDL. SESSIONS JUDGE-01(CENTRAL),
              TIS HAZARI COURTS, DELHI


SC No.171/07


State                Vs       Dharmender Aggarwal,
                              S/o Sh. Ram Babu Aggarwal,
                              R/o 28, Guru Anand Nagar
                              Extn., Laxmi Nagar, Delhi.


                              FIR No.512/05
                              U/S : 323 IPC
                              PS : Pahar Ganj


                              Arguments heard on : 20.2.09
                              Order pronounced on : 20.2.09

                              ***

ORDER ON SENTENCE

I have heard the convict Dharmender Aggarwal on the point of sentence. It has been submitted that he is the first offender and has no criminal antecedents and that taking into consideration his young age, lenient view may kindly be taken.

2. Taking into consideration the entire facts and circumstances of the case, the convict Dharmender Aggarwal is sentenced to undergo imprisonment for the period already undergone by him and to pay a fine of Rs.5000/- for the offence punishable under Sec.323 IPC. In default of payment of fine, he 227 shall undergo simple imprisonment for one month. File be consigned to Record Room.


Announced in the open Court

20.2.2009                           ( PRATIBHA RANI )
                                    ASJ-01(Central)/Delhi




                              228
      IN THE COURT OF SMT. PRATIBHA RANI,
   ADDL. SESSIONS JUDGE, TIS HAZARI COURTS,
                    DELHI

SC No.137/07

State          Vs    (1) Nirmal Kr. Saraswat,
                         S/o Sh. Jagdish Prasad
                         Saraswat,
                         Partner of M/s Nirpra
                         Industries, 22, Biplobi
                         Rash Bihari Bose Road,
                         (Canning Street), Calcutta.

                           R/o 550, N-Block, New
                           Alipore, Calcutta.

                     (2) M/s ESDY Enterprises,
                         22, Biplobi
                         Rash Bihari Bose Road,
                         (Canning Street), Calcutta.

                     (3) Rattan Lal Sarogi,
                         S/o Late Sh. Devi Dutt
                         Sarogi,
                         34, Burtolla Sreet,
                         Calcutta.

                           R/o 530, Rabindra Sarani,
                           Calcutta.

                     (4) Murari Lal Sarogi,
                         S/o Late Sh. Devi Dutt
                         Sarogi,
                         Partner of M/s Orient
                         Industrial Works, 34
                         Burtolla Sreet,
                         Calcutta. (Now Dead)

                           R/o 530, Rabindra Sarani,
                           (Khumbor Toli) Calcutta.



                     229
                                   (5) Pawan Kumar Sarogi,
                                      S/o Late Sh. Madan Lal
                                      Sarogi,

                                        R/o 530, Rabindra Sarani,
                                        Calcutta.

                                  (6) Vinod Kumar Narula,
                                      S/o Sh. Harbans Lal Narula
                                      Jr. Stenographer, ICP
                                      Discipline (now working in
                                      the IDCS Discipline),
                                      Central Food Technology
                                      Research Institute,
                                      Mysore.

                                        R/o Door No.16, 4th Cross,
                                        Brindaban Extn., Mysore.

                                  RC No.1/82/CIU(F)
                                  U/s 420/468/471/120-B IPC r/w
                                  Sec.511 IPC.

                                  Date of Institution : 14.5.1984
                                  Arguments heard on :
                                  Order pronounced on : 25.02.09
                                  ***
JUDGMENT

            Accused   Nirmal      Kumar Saraswat, M/s         ESDY

Enterprises, Rattan Lal Sarogi, Murari Lal Sarogi (now dead), Pawan Kumar Sarogi and Vinod Kumar Narula have been sent to face trial for the offence punishable under Sec.420/468/471/120-B IPC r/w Sec.511 IPC. In brief the case of the CBI is that Brig. Harnam Singh, Manager (Security & Vigilance), FCI, Head Quarter lodged a report against M/s Global Industries and M/s Cosmos Industries of Calcutta, M/s 230 ESDY Enterprises of Calcutta and officials of Central Food Technology Research Institute (CFTRI) and Quality Control Division of FCI, Delhi to the effect that Food Corporation of India (FCI) use fumigation covers for covering its food grain stock and these covers are made of double textured rubberised cloth to make them air proof and some chemicals are also used in preparation of these covers and they are procured from the open market by inviting tenders.

2. It was further mentioned in the complaint that in the year 1981 FCI, HQ decided to purchase 1000 fumigation covers but as the samples were not approved, the tender was cancelled. Thereafter FCI decided to purchase 5500 fumigation covers for which tenders were invited and 13 tenders were received, out of them 10 were found to be valid as they were accompanied with the sample fumigation cover. Materials were drawn from these 10 samples and after giving code numbers, the samples were sent to Chief Inspectorate of Textiles and Clothing, Ministry of Defence, Kanpur as well as CFTRI, Mysore for technological examination. On 5.11.1981, two registered letters bearing identical numbers were received from CFTRI in the Quality Control Division, FCI, New Delhi. On opening, both the envelopes were found containing Analysis Report in respect of the same samples but with different results. On verification, it 231 was found that one report was genuine and on the carbon copy, signatures of Mr. Muthu were forged. The genuine report disclosed that six sample had passed the test and remaining four including that of the accused persons failed the test but the forged report was to the effect that samples of the accused persons had passed the test and others had failed. The Kanpur Laboratory also failed the samples of the accused persons regarding the clothing and textile.

3. During investigation, it was revealed that Sh. B.D. Dhanuka was managing the business of M/s Global Industries dealing in industrial chemicals and Sh. N.K. Soni was the proprietor of M/s Cosmos enterprises, Calcutta and manufacturing and exporting industrial gloves. Accused No.2 M/s ESDY Enterprises associated with M/s Oriental Industrial Works, Calcutta which manufactured fumigation covers and other like items. Sh. B.K. Periwal (Approver) owned the firm True tone Chem. Corporation and dealt in industrial chemicals. Idea of giving tenders was mooted by accused accused no.3 Rattan Lal Sarogi before Sh. B.K. Periwal, Sh. B.D. Dhanuka and Sh. N.K. Soni as his family had factory for manufacturing fumigation covers and other industrial items and he offered his services as the business was lucrative and he undertook to buy the clothes from the market and rubberize in his factory and that 232 stitching could be done in M/s Cosmos enterprises which was having stitching machines. Tenders were to be submitted by Ms. Global Industries and M/s Cosmos Enterprises for which he offered to get these companies registered with NSIC through his connections and profits were to be shared equally by them. An agreement was also entered into by the two firms with M/s Orient Industries as agreement with the manufacturer if the rubberized clothes was one of the important document to be submitted with the application for registration. When the FCI floated tenders for 1000 fumigation covers, the said two firms submitted the tenders but subsequently the same were cancelled. Subsequently when tenders were invited for 5500 fumigation covers, accused No.3 Rattan Lal Sarogi brought this to the notice of Sh. B.K. Periwal, Sh. B.D. Dhanuka, Sh. N.K. Soni and unbleached cloth sheet was purchased to keep the sample cover easily identifiable and the samples were deposited by accused No.3 Rattan Lal Sarogi, Sh. B.D. Dhanuka, Sh. B.K. Periwal and accused No.1 N.K. Saraswat with FCI Depot, Naraina. They also formed pool with five other firms of Calcutta to eliminate competition and to ensure handsome margin of profit and they entered into a criminal conspiracy between September, 1981 to February, 1982 with the object to cheat FCI by dishonestly and fraudulently inducing the FCI to accept their tender and obtain 233 supply of fumigation cover to them worth Rs.4.30 Crores. In pursuant to the said conspiracy, it was decided that accused No.3 Rattan Lal Sarogi, Sh. B.K. Periwal - the approver, Sh. B.D. Dhanuka - the approver and accused No.1 Nirmal Kumar Saraswat would make joint effort to get their samples passed in the laboratory and they also managed to collect the codes given by FCI to their samples before dispatching them to the laboratories. The samples were recoded to keep secrecy but accused No.3 Rattan Lal Sarogi, accused No.1 N.K. Saraswat, accused No.5 Pawan Kumar Sarogi collected even the recodes of the samples to be sent to Mysore and accused No.3 Rattan Lal Sarogi, Sh. B.K. Periwal (the approver), Sh. B.D. Dhanuka (the approver) visited Mysore on 20.10.81 and contacted accused No.6 Vinod Kumar Narula, P.A. to the Project Co-ordinator and won over him by paying Rs.500/- at the first instance and he agreed to help them in identifying the samples of three accused persons. On 13.11.1981 accused No.6 Vinod Kumar Narula informed accused No.3 Rattan Lal Sarogi about some blade cuts in their samples which were required to be replaced and he asked him to come to Mysore immediately with fresh samples as per measurement given by accused No.6 Vinod Kumar Narula. Accordingly fresh samples were prepared and they reached Mysore. On 15.11.1981 two earlier samples were removed with 234 the help of accused No.6 Vinod Kumar Narula and substituted by the fresh samples after forging the signatures of FCI Officer thereon and the forgery was committed by accused No.1 N.K. Saraswat and Sh. B.K. Periwal and as the third sample was already put for test, it could not be substituted and accused No.6 Vinod Kumar Narula was again paid Rs.1000/- by accused No.3 Rattan Lal Sarogi and in connivance with accused No.6 Vinod Kumar Narula they also destroyed some graphs containing the data of test but samples failed and the accused persons in a bid to grab the order prepared a false report with the help of accused No.6 V.K. Narula on 2/3-12-1981 by forging the signatures of Mr. Muthu thereon and said bogus report was despatched by accused No.6 V.K. Narula by registered post to FCI and a total sum of Rs.5000/- was paid to accused No.6 V.K. Narula, However, the original genuine report also reached FCI, HQ bringing to light the entire conspiracy resulting in filing of the complaint. In order to ensure that tenders to be cancelled again, the accused persons resorted to filing police complaints alleging irregularities. During investigation conducted by CBI, questioned documents were got examined from CFSL and Sh. B.K. Periwal and Sh. B.D. Dhanuka turned approver. After completion of investigation, accused Nirmal Kumar Saraswat, M/s ESDY Enterprises, Rattan Lal Sarogi, Murari Lal Sarogi 235 (now dead), Pawan Kumar Sarogi and Vinod Kumar Narula were charge sheeted for the offence punishable under Sec.420/468/471/120-B IPC r/w Sec.511 IPC.

4. After complying with the legal requirement, vide order dated 25.2.1986, the case was committed to the Court of Sessions.

5. After hearing on the point of charge, all the accused persons were charged on 4.6.1991 for the offence punishable under Sec.120-B r/w Sec.420 IPC, Sec.420 r/w Sec.511 IPC and Sec.471 IPC. Accused No.1 N.K. Saraswat and accused No.6 Vinod Kumar Narula were also charged for the offence punishable under Sec.468 IPC. All the accused persons pleaded not guilty to the above charges and claimed trial.

6. CBI has examined twenty witnesses in all in support of its case. Accused persons were also examined under Sec.313 CrPC to enable them to explain about the evidence appearing against them in which the accused persons have stated that they awee innocent and falsely implicated in this case by CBI.

7. The prosecution case mainly rests on the testimony of two approvers i.e. Sh. Bijay Kumar Periwal (PW1) and Sh. Basudev Dhanuka (PW2). The complainant in this case has remained unexamined and Mr. Muthu whose signatures were allegedly forged on the report Ex. 9/A was also not produced by 236 the prosecution and in the circumstances the contention of ld. Defence counsels is that the testimony of approvers cannot form basis of conviction of the accused persons specially when PW2 Sh. Basudev Dhanuka also does not support the testimony of another approver PW1 Bijay Kumar Periwal. It has been further contended that there is no material on record to prove that any forgery was committed by any of the accused in conspiracy with each other and there is absolutely no evidence on record to connect accused V.K. Narula with slip Ex.PW1/29 containing the telephone numbers of the two approvers. It has also been contended that the admission of the two approvers that they were neither the Partner/Proprietor/Director of the company who submitted the tenders for supplying fumigation covers, it is clear that the two approvers were only doing liaison work on behalf of the company who submitted the tender and if in order to perform well in their liaison work they adopted some illegal means, none of the accused can be convicted for the alleged act of the approvers in obtaining codes of the samples or keep a watch on the Lab tests and results. It has been contended that even the statement of I.O. does not specify as to how he had connected accused No.6 V.K. Narula in this case when he himself had admitted that he entered the Lab only after showing his identity card. If DSP CBI is required to enter the Lab after 237 getting his identity checked then how the two approvers could have a free access to the Lab and join accused V.K. Narula in the conspiracy. It has been contended that there is nothing on record to prove any nexus between accused No.6 and approvers and prosecution has miserably failed to prove its case against the accused persons, hence they be acquitted.

8. On behalf of CBI, Sh. Y. Kahol, Spl. PP has submitted that the two approvers have proved on record that in order to grab the order for supply of fumigation covers to FCI, all the accused persons have entered into a conspiracy and their meetings at different point of times in different Hotels stand proved by the prosecution. It has been further contended that from the statement of Sh. K.S. Narsiman, Scientist, CFTRI, Mysore, it is clear that one of the two reports was forged and only a person in getting his sample approved could procure a fake report in connivance with the officials of Lab i.e. accused No.6 V.K. Narula and in the circumstances the case against the accused persons stand proved beyond reasonable doubt and they be convicted.

9. I have considered the rival contentions and carefully gone through the record. Out of the 20 witnesses, examined by the prosecution, the material witnesses to be considered to give the finding whether the case of prosecution stands proved or not, 238 are that of PW1 Sh. Bijay Kumar Periwal - the approver, PW2 Sh. Basudev Dhanuka - the approver, PW-5 Sh. Leela Dhar Kalra who was P.A. to PW-9 Sh. S.K. Banerjee, Joint Manager (Quality Control) where the two conflicting reports Ex.PW5/A and Ex.PW9/A were received, PW-10 Sh. K.S. Narsiman, Scientist, CFTRI, Mysore, PW-11 Sh. B. Ramachandrarao, Sr. Technical Assistant, CFTRI, Mysore, PW-18 Dr. S.C. Mittal, Principal Scientific Officer (Dy. Director)-cum-Assistant Chemical Examiner), CFSL, CBI and the Investigating Officer PW-20 Sh. S.B. Sinha, DSP, CBI.

10. Out of the remaining witnesses, PW-3 Sh. Bhagirath Sharma was working as Assistant Grade-I with FCI, Mayapuri who has deposed about the receiving of samples of fumigation covers and that after two-three days of submissions of samples, some persons came to him to know about the fumigation covers but he refused to disclose anything. PW-4 Sh. F.S. Rehman, Manager, Hotel Housala (KSTDC), Govt. of Karnataka is a witness to the seizure of four bills (Ex.P1/38, 40 to 42) and one register (Ex.P1/9) by CBI team vide seizure memo Ex.PW4/A. PW-6 Sh. Suresh Chander Bhan was working in the Despatch Section of CFTRI, Mysore at the time when two reports were despatched and he has proved the relevant entries in the register as Ex.PW6/A and B and copy of the phonogram as Ex.PW6/C. 239 PW-7 Sh. Raj Kumar Khanna has deposed about invitation of tenders for 1000 gas proof covers vide Ex.PW7/A. PW-8 Sh. P.K. Vasudeva, Joint Manager (Vigilance), HQ, FCI is also a witness to the seizure memos Ex.PW8/A and B vide which documents mentioned therein were seized. He has also identified the signature of Brig. Harnam Singh, Manager (Vigilance), HQ, FCI on the complaint dated 2.2.1982 at point-A and proved the complaint as Ex.PW8/D. PW-12 Sh. K.P. Rajaram, Assistant, Personal Cell, CFTRI is a witness to the seizure memo Ex.PW12/1 and 2 vide which documents mentioned therein were seized. PW-13 Sh. Sarju Prashad Misra is a witness to the specimen handwriting Ex.PW13/A1 to A6 taken by the IO of accused No.1 Nirmal Kumar Saraswat. PW-14 Sh. Mohan Joshi was Assistant Manager at Hotel 55, Cannaught Place, New Delhi and in his presence register Ex.PW14/B was seized vide memo Ex.PW14/A. Similarly PW-15 Sh. R.K. Gupta is also a witness to the seizure of register Ex.PW15/B of the hotel vide memo Ex.PW15/A. PW-16 Sh. Kamlesh Kumar Poddar was working as Accountant with the firm M/s Nirpara Industries and ESDY Enterprises and he has been examined to identify the handwriting and signature on the documents. PW-17 Sh. Mam Chand was Technical Store In- charge, FCI in whose presence Inspector, CBI seized two 240 samples of fumigation covers vide memo Ex.PW17/A, sample Mark-BIN and GIN vide receipt Ex.PW17/B. He has identified samples of fumigation sheets marked as BIN as Ex.PW17/C and marked as GIN as Ex.PW17/D.

11. PW18 is Dr. S.C. Mittal, Principal Scientific Officer (Deputy Director) cum Assistant Chemical Examiner, who examined the questioned documents and submitted his report Ex.PW18/1 to 3. In this report the questioned signatures on the report Ex.PW9/A or on the substituted samples attributed to accused Nirmal Kumar Saraswat could not be linked. PW19 Sh. D.S. Bawa, the then ADJ granted pardon to approver B.K. Periwal (PW2). PW20 is Sh. S.B. Sinha, DSP, IO of the case. He has identified the signature of Sh. D. Mukerjee, the then SP at point A under whose signature the FIR Ex.PW20/A of the present case was registered on 23.2.82 and stated that investigation of this case was entrusted to him on the same day. During investigation he examined witnesses, collected the documents and after analysis of evidence, he filed the charge sheet Ex.PW20/B in the Court. He has also identified his signature at point A on the seizure memo Ex.PW20/C and stated that he collected the file (tender folder) regarding tenders for the purchase of rubberized fumigation covers made of double textured rubberized cotton fabric and the file Ex.PW20/D 241 consisting of 1 to 298 pages. He has also stated that he collected tender examination file No. QC-14(4)/81 (Ex.PW20/E) containing correspondence pages 1 to 155 plus 7A, 24A, 25A, 32A, 47A, 68A, 79A and 145A and noting pages 1 to 54, part file No. QC-14(4)/81 containing correspondence pages 1 to 31 plus 1A and noting pages 1 to 10 is Ex.PW20/F. He also collected 10 pieces of fumigation covers Ex.PW20/G1 to G10 vide seizure memo Ex.PW20/H.

12. In order to understand the charges against the accused persons with the role attributed to them, for the sake of convenience the charges framed by the Court on 4.6.1991 are bifurcated as under :-

(1) that in the year 1981-82 the accused persons alongwith the approvers entered into a conspiracy to cheat the FCI by agreeing to do an illegal act i.e. by depositing sample of fumigation covers, obtaining Codes and re-codes (wrongly typed as covers and records);
(2) preparing and using false report purported to be prepared by CFTRI, Mysore to induce FCI to accept the tenders submitted by M/s Global Industries, M/s Cosmol Industries and M/s EDSY Enterprises and placed the order on them to supply fumigation covers worth Rs.4.30 crores;
(3) two samples intentionally prepared with unbleached clothes in order to render them identifiable were deposited with FCI, Naraina Depot and accused Rattan Lal and the two approvers obtained the Codes and accused Pawan, Rattan and Nirmal Kumar obtained the re-codes allotted to their samples before despatching to CFTRI;
242
(4) the two approvers and accused Nirmal Kumar contacted accused V.K. Narula, PS to Project Co- ordinator, CFTRI and with his help two original samples of fumigation covers were substituted with fresh samples with forged signature of FCI Officer and the signature were forged by Nirmal Kumar Saraswat and approver B.K. Periwal; and (5) the bogus test report was got prepared by accused V.K. Narula on letter head of CFTRI on which signature of M. Muthu were forged by accused Nirmal Kumar Saraswat and the carbon copy of the bogus report was got despatched by accused V.K. Narula to Joint Manager (Quality Control), FCI, Head Quarter, New Delhi to secure the orders and further that the forged report was used as genuine by the accused persons for acceptance of their samples by FCI.

13. So far as the charge against the accused persons for entering into a conspiracy by depositing the sample of fumigation covers is concerned, the FCI invited the tenders and the persons/firms taking part in the process were required to deposit the sample also. So depositing of sample was not an illegal act. So far as the allegation that some of the accused persons obtained code and re-code is concerned, there is no material on record that from which officer/official of FCI the codes were obtained by the two approvers namely Sh. B.K. Periwal and Sh. B.D. Dhanuka and accused Nirmal Kumar Saraswat and re-codes were obtained by Pawan Kumar Sarogi and Rattan Lal Sarogi and Nirmal Kumar Saraswat. It is relevant to mention that none from FCI has been made an accused in this case. The testimony of the two approvers is to the 243 effect that they visited the office of FCI and obtained the codes but they did not disclose about the designation or name of the FCI official from whom the codes were obtained by the two approvers. The statement of PW3 Sh. Bhagirath Sharma is also relevant. He has stated that in the year 1981 he was working as Assistant, Grade-I with FCI at Maya Puri. After seeing the letter No. QC-14(4)/81/42 dated 19.9.1981 and letter dated 12.10.1981 vide which eight samples of fumigation covers were received by him which were wrapped and sealed and vide letter dated 12.10.1981 Ex.PW3/B from M/s Calcutta Commercial Corporation one sample of fumigation cover was received and vide letter Ex.PW3/C from M/s ESDY Enterprises another sample of fumigation cover was received on 12.10.1981 and vide letter Ex.PW3/D dated 9.10.1981 from Emtex Commercial Company one sample of fumigation cover was received. He has further stated that after 2-3 days, 2-3 persons came to him and wanted him to help them for passing their tenders. He improved his statement by again saying that only one person came who wanted to know about the fumigation covers and he replied that he was not in a position to tell anything to him and that the team from the Head Quarter has seen the samples and sealed them. Except this statement there is no other material on record to establish that the two approvers or accused Rattan Lal Sarogi, 244 Pawan Lal Sarogi and Nirmal Kumar Saraswat were the persons who contacted PW3 for help. His version that he refused to tell anything saying that the samples had been sealed by the Head Quarter team can only establish that he was not in a position to provide any information about codes. PW7 Sh. Raj Kumar Khanna, Assistant Manager, FCI has deposed about invitation of tenders for supply of 1000 gas proof covers in April, 1981 but since those tenders were cancelled and are not in issue in this case, his testimony need not to be discussed to decide this case. So far as re-code part is concerned, testimony of PW9 Sh. S.K. Banerjee who was Joint Manager (QC) at the relevant time, is to be considered. He has stated that in the year 1981-82 he was working as Joint Manager (QC) in Head Quarter, FCI. He dealt with the case at later stage with regard to procurement of 5500 fumigation covers. As per tender clause, tenderers were supposed to submit sample of fumigation covers with FCI. After receipt of sample, a Committee was appointed consisting of three officers namely Sh. M.R. Maiti, Sh. K. Narayanan and one Deputy Manager (Accounts) which was approved by higher officers. Samples were drawn by the Committee and referred to CFTRI, Mysore for analysis. Another Committee was formed which coded and recoded the samples before sending the same to CFTRI. In cross examination he has stated that though he was 245 not member of the Committee which has done coding but admitted that he was member of the Committee which had done recoding. He has further stated that after recoding, the samples were sealed in envelope which was kept in the almirah of the office and the keys of the same were with his P.A. (as per prosecution his P.A. was PW5 Sh. Leela Dhar Kalra). He has also stated that while despatching the samples to CFTRI, Mysore, he ensured that the seals were intact. The coding and recoding of the samples were sealed in envelope while the samples were in sealed packages. The sample packages were sent to CFTRI, Mysore while the envelopes containing documents of coding and recoding were kept in the office. PW9 has not given the names of the officers forming that Committee and in the absence of same it cannot be said as to who was having access to the codes and recodes allotted to the samples and was in a position to leak the same to accused Rattan Lal Sarogi, Pawan Kumar Sarogi, Nirmal Kumar Saraswat and the two approvers namely Sh. B.K. Periwal and Sh. B.D. Dhanuka. The statement of IO on this aspect is silent. It was for him to investigate into all these aspects and reveal the nexus, if any, between the FCI officials and the five persons named above who were making efforts for obtaining codes and recodes. Another aspect is that samples were prepared with bleached clothes so 246 that they could be easily identified and distinguished while making efforts for obtaining code and recode and also in the laboratory. If the purpose to prepare the sample in unbleached cloth was to keep them distinct, then there was hardly any requirement to obtain the code and re-code from FCI as the sample in unbleached cloth was sufficient to point out that accused/approvers wanted which sample to be passed. Next point to be considered is that the samples earlier sent by FCI were not of the size which could be sufficient for testing and FCI was asked to provide samples of bigger size, thus compelling the accused persons to replace the samples after forging the signatures of FCI officer. It is surprising that there is no evidence on record to prove sending of bigger samples by FCI. Further the handwriting expert report does not establish that the alleged forged signature on the replaced sample sheet of bigger size were that of approver Sh. B.K. Periwal and accused Nirmal Kumar Saraswat. It has come in the testimony of PW11 Sh. B. Ramachandrarao, Sr. Technical Assistant, CFTRI, Mysore that during the year 1981-82 he was helping the Head of Department in day to day research work. In included sample monitoring, chemical repository, preparing reports for RC/RAC and Instt. Co-ordinate Council, preparation of project reports, annual reports, maintaining the records pertaining to the department 247 regarding chemicals, plans and machindery etc. He has further stated that samples were received by post. He used to maintain a diary in which entries were made regarding receipt of samples by post and after recording the entry in the register he would hand over the samples to the Scientist against acknowledgment. He has further stated that on 3.11.81 he was handed over ten samples of fumigation fabric by Sh. S.K. Majumdar, Head of Department. He recorded entry in the register and handed over the samples to Sh. K.S. Narsiman (PW10) for analysis and obtained the acknowledgment of receipt of sample from Sh. Narsiman. He has proved the relevant entries in the receipt register as Ex.PW11/A and acknowledgment of receipt by Sh. Narsiman at encircled portion as Ex.PW11/B. He has further stated that the fees for testing the sample was received in advance vide entry Ex.PW11/C which was deposited with the Accounts Department. He also made endorsement on letter Ex.PW11/D regarding receipt of samples and the entry in the register vide endorsement encircled 'A' bearing his initial at point 'B'. From the testimony of PW11 it can safely be inferred that there was a proper procedure for receiving the samples and assigning it to the concerned Scientist for testing and nothing was oral. If it was so then how it is possible for the accused persons to replace their samples with forged signatures without 248 there being any entry in the record about receiving the same from FCI and further marking it to the Scientist. There is no investigation on this point. The procedure for sending the samples has earlier been mentioned while discussing the statement of PW9 and the same procedure should have been followed while sending the samples of larger size but the record is silent on this aspect and there is nothing to support the statement of approvers PW1 Sh. B.K. Periwal and PW2 Sh. B.D. Dhanuka in this regard.

14. It is also to be considered that whether the Government Lab, CFTRI, Mysore was just like a Dharamshalla where anybody could enter or exit carrying anything in hand without any check from any official. In this regard statement of PW1 Sh. B.K. Periwal - the approver is that after coming to know telephonically the re-code number through Sh. Murari Lal and on being asked to make efforts to get the sample passed by visiting Mysore, he alongwith PW2 Sh. B.D. Dhanuka - the approver went to CFTRI, Mysore. He has stated that on that day it was a holiday other than a Sunday and accused Narula was sitting in the testing department who on inquiry told them that testing of fumigation cover sheets is done there and also that FCI had sent samples for testing. He has stated that they asked him to show the samples on the pretext of checking the code numbers 249 and he showed the sheets lying in the rack. They recoganised their samples on the basis of unbleached cotton base in their samples and also cross checked the code numbers and found to be correct. They came out with Mr. Narula and went to Metropol Restaurant and requested Mr. Narula to help them in getting their sample passed to which he agreed. He gave a piece of paper to Mr. Narula on which five codes i.e. BAT, PAT, CAT, FAT and TAT, their office telephone numbers and residential telephone numbers were written and he write his name as V. Kumar. This witness has identified that piece of paper as Ex.PW1/29 which is in his handwriting. He has further stated that he identified the samples of their firms by marking them with three lines and that they paid Rs.500/- in cash to Mr. Narula for getting the sample passed and thereafter he and B.D. Dhanuka went to Calcutta. He has further stated that on 30.10.81 he alongwith Nirmal Kumar Saraswat again came to Mysore and telephoned accused No.6 Vinod Kumar Narula to come to their Hotel . Mr. Narula came to the Hotel and met them and they requested him to show the samples again to check the code numbers and Mr. Narula asked them to come to his office at 5.30 pm. They reached the office of Mr. Narula at 5.30 pm where they cross checked the code numbers and re-codes and thereafter both of them alongwith Mr. Narula came to the Hotel 250 and requested Mr. Narula to get the samples passed. At that time Nirmal Kumar Saraswat gave Rs.500/- to Mr. Narula in his presence. He has further stated that accused Rattan Lal informed him and PW2 Sh. B.D. Dhanuka that Mr. Narula had informed about receipt of fresh samples from Delhi. He met the accused persons, discussed about the second lot of samples sent by FCI that had been cut with blade by someone and were to be replaced and that two fresh samples should be prepared measuring 2.5 X 2.5 meters and that after getting the fresh samples prepared, they went to the house of accused No.6 Mr. Narula and informed him about the three samples brought for substitution. Accused No.6 Mr. Narula asked them to reach the office after half-an-hour and that one sample has already been put for testing and he would return another two samples with blade cuts and that the samples to be substituted should have forged signatures of FCI officer. Then after half-an-hour they reached the office of Mr. Narula where they were handed over the two samples having blade cuts which they brought to the Hotel and also informed accused No.6 that he would be given substituted samples within one hour. In the Hotel after seeing the five signatures, two in red and three in blue ink on those samples and the code numbers BAT and GAT written on them, signature in blue ink were forged by him (PW1) and in red ink by Nirmal Kumar Saraswat and the samples were 251 handed over to accused No.6 for replacement. It has also come in the statement of approver (PW1) that accused No.6informed them that about 10-12 days would be taken in completing the tests, so they returned. On 2.12.1981 he went to Mysore by Air where Nirmal Kumar Saraswat told him that report has already been made and some officers from FCI, Delhi has come to Mysore to collect the report. After about five minutes Mr. Narula also came to the Hotel and Nirmal Kumar Saraswat handed over carbon copy of the test report and identified the report Ex.A5 to be the same which was handed over by Nirmal Kumar Saraswat to Vinod Kumar Narula. Accused No.1 Nirmal Kumar Saraswat asked him to accompany accused No.6 Vinod Kumar Narula to ensure that it was despatched directly and entered in the desptach register. He alongwith accused No.6 Vinod Kumar Narula left the Hotel and went to Desptach Section of CFTRI. Accused No.6 Vinod Kumar Narula handed over the envelope containing the carbon copy Ex.A5 to the despatcher who made entry in the despatch register. Accused No.6 Vinod Kumar Narula obtained the desptach number and acknowledgment from the despatcher on a carbon copy of the letter addressed to FCI, Delhi and told him that though the envelope contained carbon copy of the test report, he was going to obtain acknowledgment from the despatcher representing that 252 the envelope contained original letter and he was doing so for the satisfaction of Nirmal Kumar Saraswat. He also came to know from accused No.1 Nirmal Kumar Saraswat that all the three samples had failed but the report show the samples 'as passed' and accused Nirmal Kumar Saraswat further told him that first copy of the report has been handed over personally by Vinod Kumar Narula to some Officer of FCI who had come to Mysore to collect the report and they should presume that they would get the order. Thereafter they came to the Hotel Rajinder Villa and took lunch and there Nirmal Kumar Saraswat paid Rs.3,000/- in cash to Vinod Kumar Narula in his presence and thereafter they dropped Vinod Kumar Narula at his residence and returned to Calcutta. In his further examination, PW1 Sh. B.K. Periwal - the approver has stated that when the two conflicting reports reached FCI, on coming to know about this, he made inquiries from Nirmal Kumar Saraswat as to how this has happened. Then accused Nirmal Kumar Saraswat told him that earlier both the reports were identical showing that the samples had been passed and that infact their all the three samples had failed and when it came to his knowledge, accused No.6 Vinod Kumar Narula told them that he would prepare a report showing their samples as 'passed' and that of other firms as 'failed'. Thereafter accused Vinod Kumar Narula brought a 253 prepared report showing their samples as 'passed' and that accused Nirmal Kumar Saraswat further told him that he had forged the signatures of Sh. M. Mtttu on the said report as accused No.6 Vinod Kumar Narula has brought 2-3 letters signed by Mr. Muthu and after practising the signature, he forged the signature of Mr. M. Muthu on the said report. Thus two conflicting versions have been given by PW1 Sh. B.K. Periwal as to how a report showing the samples of the accused persons as 'passed' was prepared. It is relevant to mention here that so far as PW2 Sh. B.D. Dhanuka - the approver is concerned, he is not of much help to the prosecution as it has come in his cross examination that he was neither a partner nor proprietor in any of the firm. He has further stated that PW1 Sh. B.K. Periwal was doing the liaison work and he only used to inquire from PW1 Sh. B.K. Periwal about these tenders and the progress of approval of samples. He has stated that he accompanied Sh. Periwal to Mysore only once but nothing happened in his presence.

15. Now the question to be decided is whether the uncorroborated testimony of PW1 Sh. B.K. Periwal can form basis of conviction of any of the accused persons. First of all, so far as the efforts made at CFTRI, Mysore to get the samples passed is concerned, it has come in the cross examination of 254 PW20 Sh. S.B. Sinha, DSP that entry to CFTRI is restricted after ascertaining the identity of the visitors and even he had to show his identity card for having access to that Lab. However, he has tried to make some improvement by stating that "As I found out during investigation, it was not a free access to the Laboratory by an outsider visitor but if they had accompanied by some employee of the Laboratory, it could be possible". If the situation was such, then how it was possible for the two approvers to have access to Vinod Kumar Narula on 'holiday' in CFTRI and get favour from him by checking the samples in Lab with the codes without any demand from him to the favour. The alleged payment of Rs.500/- to Vinod Kumar Narula in the Hotel was also stated to be made voluntarily. The frequent visits to CFTRI by the approvers and accused Nirmal Kumar Saraswat for checking and rechecking of samples with the assistance of Vinod Kumar Narula could be possible only if it was 'One Man Show' and accused No.6 Vinod Kumar Narula was all in all in CFTRI, Mysore. There is nothing on record to suggest any prior acquaintance or temptation which could persuade accused No.6 Vinod Kumar Narula to help the two approvers to the extent of replacement of samples with forged signatures and preparing a forged report. Further more, PW6 Sh. Suresh Chander Bhan, despatch clerk from CFTRI does not speak about the presence of 255 either the approver PW1 Sh. B.K. Periwal or accused No.6 Vinod Kumar Narula at the time of despatch of the report nor there is any other evidence on record to establish that some FCI official personally came to take the report by hand and the report was handed over to him. If the report was given by hand to an officer who specially came for that purpose, then there was no occasion for sending the report by post. Even otherwise as per chargesheet, the two conflicting reports were received in FCI by post only. Further more, if accused No.6 Vinod Kumar Narula was so powerful to get a fake report prepared and sent, then he could have also managed that the real report is withheld and not sent to FCI. The testimony of PW1 Sh. B.K. Periwal - the approver about his various visits, the so called payments made to accused No.6 Vinod Kumar Narula is not supported and corroborated from any oral or documentary evidence. It is also relevant to mention here that statement of PW10 Sh. K.S. Narsiman, Scientist, CFTRI is also not inspiring any confidence rather the manner in which he has reached FCI office and certified one of the two reports as genuine, knowing fully well that he was not unauthorised to do so, nor he was officially summoned to FCI office for that purpose or deputed by his Organization to certify the genuine report, a question mark is raised on the veracity of his testimony. It is relevant to mention 256 here that during cross examination, he has stated that he was on personal visit to Delhi at that time and on 7.12.1981 while he was standing at the bus stand of Sheikh Sarai for boarding a bus for going to Krishi Bhawan, he happened to meet Mr. Shivana at the bus stand but he did not give his contact number to him and that he made a telephonic call on being informed to Mr. Krishna Murthi that there was a call for him from FCI and the telephone call was received by Mr. Shivana who requested him to come to the office of FCI in the afternoon. He has stated that FCI people contacted Mr. Muthu and he asked him to certify the report and it happened on 8.12.1981. In cross examination he has further stated that he did not remember as to why he was carrying the photocopy of the report. If version of PW10 in cross examination is considered then it shows that he is a confused witness. He does not know that on his visit to Delhi for personal work why he was carrying the photocopy of the report which was to be certified as genuine, he knew that he was not authorised to certify the report as genuine, Mr. Shivana was not having any contact number so as to call him to certify the report, there was no official requisition by FCI to CFTRI to depute any of its official to certify which was the genuine report and even there is no noting on the reports by any FCI official as to in what circumstances the fact of PW10 Sh. K.S. Narsiman being in 257 Delhi became a public news for FCI so as to call him to the office and get one of the report certified as genuine bearing geunine signature of Mr. Muthu. Mr. Muthu has remained un- examined and the handwriting expert report does not link accused No.1 Nirmal Kumar Saraswat to be the person who forged the signature of Mr. Muthu on the report Ex.PW9/A.

16. Ld. Defence counsel has relied upon P.V. Narasimha Rao Vs. State through CBI 2002 (2) Crimes 304 Delhi High Court and Sarwan Singh Rattan Singh Vs. State of Punjab AIR 1957 SC 637 in support of his contention that there must be some additional evidence to establish the story of an accomplice as true and probable and it must receive sufficient corroboration.

17. The question to be considered by this Court is whether uncorroborated testimony of such an accomplice can be accepted by the Court as reliable and trustworthy to base the conviction of these accused persons. It is not for the first time that this situation has arisen before the court and for this purpose guidelines have been laid by the Hon'ble Supreme Court from time to time for the guidelines of subordinate courts how to appreciate the statement of such an accomplice.

18. In Sarwan Singh Rattan Singh vs State of Punjab AIR 1957 SC 637 the Hon'ble Supreme Court has held as under :-

258

"It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true."

19. Similar view was taken in the case of The State of Bihar Vs. Basawan Singh, AIR 1958 SC 500.

20. In case State of Maharashtra Vs. Rukhmini & Anr. AIR 1977 Supreme court 1579, it has been held as under :-

"Though an accomplice is a competent witness and though a conviction may lawfully rest upon his uncorroborated testimony, yet the court is entitled to presume and may indeed be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless that evidence is corroborated in material particulars, by which is meant that there has to be some independent evidence tending to incriminate the particular accused in the commission of the crime.
It is hazardous, as a matter of prudence to proceed upon the evidence of a self-confessed criminal who, in so far as an approver is concerned, has to testify in terms of the pardon tendered to him. The risk involved in convicting an accused on the testimony of an accomplice, unless it is corroborated in material particulars, is so real and potent that what during the early development of law was felt to be a matter of prudence has been elevated by judicial experience into a requirement or rule of law. All the same, it is necessary to understand that what has hardened into a rule of law is not that the conviction is illegal if it proceeds upon the uncorroborated testimony of an accomplice but that the rule of corroboration must be 259 present to the mind of the Judge and that corroboration may be dispensed with only if the peculiar circumstances of a case made it safe to dispense with it."

21. In case Rampal Pithwa Rahidass & Ors. Vs. State of Maharashtra JT 1994 (2) SC 573, the Apex Court has explained the legal position on this aspect as under :-

"LEGAL POSITION
9. Section 133 of the Evidence Act expressly provides that an accomplice is a competent witness against his co-accused and it renders admissible the testimony of an accomplice against his accused. It has, however, been a long settled practice of law that Section 133 of the Evidence Act must be read alongwith the provisions of illustration (b) to Section 114 of the Evidence Act. Section 114 of the Evidence Act empowers the Court to presume the existence of certain facts and illustration (b) in express terms says that an accomplice is unworthy of credit unless he is corroborated in material particulars. Thus, it follows, that whereas law permits the conviction of an accused person on the basis of the uncorroborated testimony of an accomplice by virtue of the provisions of Section 133 who is treated as a competent witness, the rule of prudence which has rightly been always accepted by the Courts, embodied in illustration (b) of Section 114 of the Evidence Act, strikes a note of warning/caution to the Courts that an accomplice does not generally deserve to be relied upon, unless his testimony is corroborated in material particulars. Thus, as a matter of practice and prudence the Courts have held that the testimony of an approver may be accepted in evidence for recording conviction of an accused person provided it receives corroboration from direct or circumstantial evidence in material particulars. The Courts have generally looked upon with suspicion the statement of an approver because he is considered to be a person of low morals and not a wholly trustworthy person who for the sake of earning pardon for himself is willing to let down his erstwhile accomplices and therefore before recording conviction Courts insist upon 260 independent corroboration of his testimony. In Ram Narain Vs. State of Rajasthan 1973(3) SCC at 811, Dua, J. while speaking for the Court dealt with the subject and observed :-
'An approver who is admittedly guilty of the crime is an accomplice who has betrayed his associates and has apparently sought pardon for saving his own skin. In other words he has purchased complete immunity for his prosecution at the expense of his associates by agreeing to give evidence against them for the prosecution. He is, therefore, presumed not to be a man of high character or a fair witness. His pardon being conditional, to please the prosecution he may well weave some false detail into the true details of the prosecution story and may also falsely involve some innocent person. There is thus a real danger of his telling a story true in general outline but containing some untruth which he can easily work into the story. It is for this reason that the Courts as a matter of prudence and caution anxiously look for some corroboration to satisfy their conscience that the approver's testimony which is clearly admissible is also worthy of belief credit. One can of course visualise an accomplice who is genuinely repentant for the commission of his crime and truly desires to make a clean breast of the whole affair by way of penitence. But even in such cases the Court has to judicially determine the extent to which his uncorroborated testimony can be considered as trustworthy by looking to the other relevant material and the attending circumstances on the basis of which the accused can be safely convicted. The rule which seems to emerge from the foregoing discussion and judicial decisions is that the necessity of corroboration as a matter of prudence except when it is safe to dispense with such corroboration must be clearly present to the mind of the judge.'"

22. After carefully considering the statement of the approvers i.e. PW1 Sh. B.K. Periwal and PW2 Sh. B.D 261 Dhanuka, it is established on record that statement of PW1 Sh. B.K. Periwal - the approver is not supported and corroborated by any other circumstantial/independent evidence and even another approver PW2 Sh. B.D. Dhanuka has not corroborated the statement of approver PW1 Sh. B.K. Periwal, hence I am of the view that their testimony is not worthy of any credence and it would not be safe to rely upon their testimony. Hence disbelieving the testimony of the approvers, the accused are acquitted. Their bailbonds stand discharged. Case property shall be confiscated to the state after the expiry of period of appeal, if any. File be consigned to record Room. Announced in the open Court.

25.2.2009                            ( PRATIBHA RANI )
                                     ASH-01(Central)/Delhi




                               262
         IN THE COURT OF SMT. PRATIBHA RANI,
         ASJ-01(CENTRAL), TIS HAZARI COURTS,
                       DELHI

                        ***
(1) SC No.135/07

State              Vs    (1) Satbir Nagar @ Sattu
                             S/o Sh. Chidda Singh
                             (Discharged)

                         (2) Pritam Lal
                             S/o Sh. Jail Singh
                             (Discharged)

                         (3) Ramesh Kumar
                             S/o Sh. Ratram
                             R/o Vill. Phalna, The Bali,
                             Distt. Paali, Rajasthan.

                         (4) Sandhya Devi @ Sita Devi
                             W/o Sh. Surjan Lal Gupta
                             R/o Gali No.15, Krishna
                             Nagar,Roorkee (Uttrachal).

                         FIR No.325/06
                         Under Sec.363/366A/368/34
                         IPC.
                         PS : RMD

                         Date of Institution : 10.1.07
                         Arguments heard on : 24.2.09
                         Order pronounced on : 25.2.09

                        ***
(2) SC No.204/07

State              Vs    (1) Bina
                             W/o Sh. Shrikant
                             R/o Gali No.7, Tapovan,
                             New Friends Colony,
                             Dheradun, Uttranchal.


                         263
                         (2) Sandhya Devi @ Sita Devi
                            W/o Sh. Surjan Lal Gupta
                            R/o Gali No.15, Krishna
                            Nagar,Roorkee,
Uttranchal.

                        (3) Satbir Nagar @ Sattu
                            S/o Sh. Chidda Singh
                            R/o Vill. Sadula Pur,
                            PS Visrak, Distt. Gautam
                            Budh Nagar, UP.

                        FIR No.329/06
                        U/S. 363/366/368/372/373/34
                        IPC.
                        PS : RMD

                        Date of Institution : 10.1.07
                        Arguments heard on :24.2.09
                        Order pronounced on : 25.2.09

                        ***

(3) SC No.259/07

State              Vs   (1) Babli
                            W/o Sh. Pradeep
                            R/o 25-D, New Inder Puri
                            Ambala Cantt., Haryana.
                            Also at :
                            Vill. Behram, PS Narvad,
                            Distt. Saharanpur, UP.

                        (2) Ranjo
                            W/o Sh. Sujeet Mehto,
                            R/o Vill. Sugraha, Baroni,
                            Distt. Begusarai, Bihar.

                        FIR No.330/06
                        Under Sec.366/368/34 IPC
                        PS : RMD



                        264
                              Date of Institution : 15.1.07
                             Arguments heard on : 24.2.09
                             Order pronounced on : 25.2.09

                             ***

(4) SC No.262/07


State               Vs       (1) Ranjo
                                 W/o Sh. Sujeet Mehto,
                                 R/o Vill. Sugraha, Baroni,
                                 Distt. Begusarai, Bihar.

                             (2) Babli
                                 W/o Sh. Pradeep
                                 R/o 25-D, New Inder Puri
                                 Ambala Cantt., Haryana.

                             FIR No.396/06
                             Under Sec.366/34 IPC
                             PS : NDLS

                             Date of Institution : 22.1.07
                             Arguments heard on : 24.2.09
                             Order pronounced on : 25.2.09

                             ***

JUDGMENT

By this common judgment, I shall be disposing of four cases bearing FIR Nos.325/06, 329/06, 330/06 of PS RMD and FIR No.396/06 of PS NDLS as all the cases are of kidnapping/abduction, wrongful confinement of kidnapped/ abducted child. Arrest and interrogation of accused persons in case FIR No.325/06 PS RMD alongwith recovery of kidnapped 265 girl led to the arrest of accused persons in other three cases as well as recovery of kidnapped/abducted girls from them. Some of the accused are also common in these cases. Initially only the case FIR No.330/06 of PS RMD and FIR No.396/06 of NDLS were consolidated vide order dated 27.02.2008 and case FIR No.325/06 and 329/06 of PS RMD were tried separately but at the stage of final arguments, all the above four cases were consolidated vide order dated 20.01.2009.

2. At the very outset, it may be mentioned that counsel for accused gave no objection to the consolidation of all above four cases and the same has been incorporated in ordersheet dated 20.01.2009. The consolidation was done after evidence of material witnesses had been recorded separately in each file. Thus, no prejudice has been caused to the accused persons in defending their cases. Even otherwise such consolidation is permissible in law because the offences were part of same transaction. The phrase 'part of same transaction' came up for judicial scrutiny in AIR 1938 Cal. 769 and it was held that for different offences to be part of same transaction, they should be related in purpose, cause, effect. This is permissible under Sec.220 CrPC and there is no limit in said section like Section 219 CrPC about number of offences which can be tried together.

3. It may be observed that disposal of all cases by 266 common judgment is not only desirable but necessary also as the same would expose the racket which was operating in kidnapping/abduction of girls, keeping them in wrongful confinement for the purpose of inducing/compelling them to marry against their wishes. The same would help in better appreciation of modus operandi adopted by different accused who were members of same racket.

4. On 10.11.2006 when Abida Khatoon, 'a Balika Vadhoo' from West Bengal was kidnapped by accused Ramesh from Old Delhi Railway Station, hell must have broken on her father-in-law Mohd. Shamir who was bringing her to Delhi with many dreams in her eyes for starting a new life in this NCR. However, this kidnapping of Abida Khatoon proved boon for many girls who were confined by other co-accused in different places in U.P. and Haryana to sell them as 'commodity' to satisfy the lust of those elderly men who were unable to fulfill the same but for the service provided by the accused persons. The prompt action by SI Arun Kumar on the basis of information provided by the network of his informers led not only to the recovery of Abida Khatoon and Sweety from Roorkee but his investigative skill and intensive interrogation of accused Satbir and Sandhya, rescued Rukhsar, Gudia and Madhu and also burst the gang of kidnappers who from their appearance looked to be simple, 267 illiterate poor villagers but infact they were trained in their business to the extent that they could beat any professional in the trade. Right from the stage of kidnapping/abduction till keeping the 'victims' in safe custody of the co-accused, neither the co- passengers during journey or neighbourers during confinement could even suspect their real business/involvement in the crime. FIR No.325/06 PS RMD

5. In brief the case of prosecution is that on 11.11.2006 the complainant Mohd. Shamir reported the matter to PS RMD regarding the kidnapping of his daughter-in-law Abida Khatoon. As per the complaint, he alongwith his daughter-in-law Abida Khatoon aged about 18 years started journey from Hawarah Junction on 9.11.2006 and reached Old Delhi Railway Station on 10.11.2006 at about 9.00 pm for going to their house in Ballabhgarh, Haryana. When he was making inquiry about the train going to Ballabhgarh, his daughter-in-law informed that his brother and bhabhi were also travelling in the same train and she wanted to talk to them. In the mean time one boy approached them and inquired about the matter. On coming to know that they were searching for some of their relation, he advised them to accompany him to Assistance Booth for announcement. When they reached Assistance Booth, he went to the urinal and on return, found his daughter-in-law and that man missing. 268 Apprehending that his daughter-in-law might have been enticed by that man to accompany him, he lodged the report vide FIR No.325/06 under Sec. 365 IPC. During investigation, on developing the information SI Arun Kumar came to know that the girl had been taken to Roorkee, Uttranchal. He formed a raiding party and recovered Abida Khatoon on the identification of the complainant from the possession of accused Ramesh and Sandhya while they were waiting for the prospective buyer to sell her at Roorkee Bus Stand. During interrogation of accused Sandhya it was revealed that she alongwith her agent i.e. co- accused Ramesh Kumar, was in the trade of purchasing and selling girls brought from various parts of Delhi including Railway Stations and Bus Stands and that even at that time one girl namely Sweety, who was kidnapped from Delhi by one Satbir @ Sattu was present at her house and a deal had been fixed to sell her to one Pritam Lal. A raid was conducted at the house of Sandhya Devi @ Sita Devi at Gali No.14, Krishna Nagar, Roorkee from where girl Sweety aged about 15 years alongwith two other persons was found present and identity of those two persons was revealed as Satbir @ Sattu and that of another person as Pritam Lal and that the girl Sweety had been kidnapped from Karawal Nagar Chowk by Satbir and sold to Pritam Lal for Rs.9,000/- and that FIR No.841/06 under Section 269 363 IPC had already been registered at PS Gokul Puri in respect of her kidnapping. After recovery of kidnapped girl Sweety and arrest of accused Satbir and Pritam Lal, they were brought to Delhi and information about the recovery of Sweety was given to PS Gokul Puri. The recovered girls Abida Khatoon and Sweety were produced before ld. MM for getting their statement under Section 164 CrPC recorded. After completion of investigation, accused persons were chargesheeted for the offence punishable under Sections 363/366A/368/34 IPC. FIR No.329/06 PS RMD

6. Accused Bina, Sandhya and Satbir have been sent to face trial for the offence punishable under Sections 363/366/368/372/373/34 IPC registered on the basis of statement made by kidnapped girl Rukhsar who was recovered when accused Sandhya & Satbir were on police remand in the above case. They led the police to home of accused Bina from where kidnapped child Rukhsar was recovered at their instance. As per the statement Ex.PW4/A, the complainant alongwith her parents and siblings was residing at village Tappal, PO Tappal Muslim Mohalla, District Aligarh, UP. Her real mother had expired and treatment of her step mother was not good and after she was snubbed by the step mother on some issue, she left home and reached Old Delhi Railway Station. As she was disturbed, one 270 person namely Satbir came to her and started talking affectionately and brought her to Roorkee to the place of Sandhya and they enticed her to accompany them to Dehradun where she was sold to accused Bina for Rs.12,500/-. Accused Bina used to take domestic work from her and also tortured her. She felt that accused Bina wanted to sell her to someone but before Bina could do so, she was rescued by the police and identified the male and female accompanying the police party as Satbir and Sandhya who sold her to accused Bina. On the basis of this statement, FIR was registered and during investigation she was got medically examined. The victim informed the doctor that she was not sexually assaulted by any person during the period she remained with the accused persons. She was also sent for ossification test and her bony age was ascertained as 12- 13 years. During her statement under Section 164 CrPC, also she named accused Sandhya Devi @ Sita Devi and Satbir to be the persons who sold her to accused Bina after she was kidnaped by accused Satbir from Old Delhi Railway Station and that accused Bina wanted to sell her to someone. After completion of investigation, charge sheet was filed against the accused persons.

FIR No.330/06 PS RMD & FIR No.396/06 PS NDLS

7. In brief the case of prosecution is that Addl. SHO, PS 271 RMD had gone to Ambala with accused Satbir and Sandhya who were on police remand in case FIR No.329/06 PS RMD. On the basis of information of the accused Sandhya and Satbir about one lady namely Babli resident of Ambala, being also engaged in the business of kidnapping of minor girls was residing, a raiding party was constituted with the accompanying staff and raid was conducted at 25-D, New Inder Puri, Ambala, Haryana and two girls were recovered from the possession of two ladies namely Babli and Ranjo who were brought to Delhi and handed over to SI Arun Kumar for further investigation.

8. Matter was investigated by SI Arun Kumar and the two recovered girls namely Madhu and Gudia were found to have been kidnapped from old Delhi Railway Station and New Delhi Railway Station respectively. While Gudia was handed over to PS New Delhi Railway Station for further action, on the basis of statement made by Madhu case FIR No.330/06 S RMD was registered against Babli and Ranjo and after getting the recovered girl Madhu examined, who did not give any history of sexual assault, her statement under Section 164 CrPC was got recorded and her bony age was got ascertained. Thereafter her custody was handed over to her mother and after completion of investigation both the accuse Babli and Ranjo were sent to face trial for the offences punishable under Sections 366/368/34 IPC. 272

9. The recovered girl Gudia who was kidnapped from New Delhi Railway Station made statement before SI Satish Chand PS NDLS to the effect that she was not having cordial relations with her husband and after some quarrel with her husband, she left home and reached New Delhi Railway Station where she was contacted by one lady whose name was subsequently revealed as Ranjo, who talked sweetly with her and thereafter she took her to one lady namely Babli who was compelling her to marry second time and that she was rescued by the police. On the basis of this statement case FIR No.396/06, under Section 366/34 IPC was registered at PS NDLS. During investigation Gudia was got medically examined and her statement under Section 164 CrPC was also got recorded. After completion of investigation, charge sheet was filed against the accused persons.

10. After compliance of the requirements of Section 207 CrPC, all the cases were committed to the Court of Sessions.

11. After hearing the prosecution as well as ld. Counsels for the accused persons, in case FIR No.325/06 PS RMD accused Satbir @ Sattu and Pritam were discharged vide order dated 21.3.2007 and a charge under Sec.120-B, 363/365/368/372 r/w 120-B IPC was framed against accused persons namely Ramesh Kumar and Sandhya Devi. In case FIR No.329/06 PS 273 RMD, accused Satbir @ Sattu and Sandhya Devi were charged under Sec.120-B, 363/365/368/372 r/w 120-B IPC and accused Bina was charged under section 365/368 IPC. In case FIR no.330/06 PS RMD, a charge under Sec.120-B, 363/365/366/368/372 r/w 120-B IPC was framed against both the accused persons namely Babli and Ranjo on 28.3.2007. In case FIR no.396/06 PS NDLS, a charge under Sec.120-B, 363/365/366/368/372 r/w 120-B IPC was framed against both the accused persons namely Babli and Ranjo on 30.3.2008. All the accused persons pleaded not guilty to the above charges and claimed trial.

12. Prosecution has examined eleven witnesses in case FIR no.325/06 PS RMD, nine witnesses in case FIR No.329/06 PS RMD, fifteen witnesses in case FIR No.396/06 PS RMD, and five witnesses in case FIR No.396/06 PS NDLS in support of its case. All the accused persons have also been examined under Section 313 CrPC in all the four cases in which they have denied the case of the prosecution and stated that they are innocent and have been falsely implicated in this case. In case FIR No.329/06, PS RMD, accused Bina has produced her husband Sh. Shrikant in her defence as DW-1. He has stated that on 15.11.2006 at about 10.00-10.30 pm, four persons and one lady from Crime Branch came to his residence and lifted his 274 wife Bina. They did not tell him where they have taken Bina. He sent telegrams to Chief Minister and Chief Justice, Uttranchal Government, Nainital on 16.11.2006 at about 12.05 in the night. He has proved the certified copies of telegrams as DW1/ A and B.

13. I have heard ld. Addl. PP for State and ld. Counsel for the accused persons and carefully gone through the record. EVIDENCE IN CASE FIR NO.325/06 PS RMD

14. In the case FIR No.325/06 PS RMD which has also been treated as main case, the prosecution has examined 11 witnesses. PW-1 Mohd. Shamir, the complainant and PW-2 Ms. Abida Khatoon, the kidnapped girl are the material witnesses and their testimony shall be discussed at the appropriate stage. On the direction of Addl. SHO PS RMD, PW-4 SI Jai Massi and PW-5 SI Ajay Pratap, got the statement under Sec.164 CrPC of Ms. Abida Khatoon and Ms. Sweety respectively recorded and obtained the copy of the same. PW-6 HC Udeyvir Singh was the Duty Officer who recorded the FIR No.325/06 PS RMD and proved the copy of the same as Ex.PW6/A and endorsement made by him on the rukka as Ex.PW6/B. PW-9 Dr. Kiran P.S., Radiologist has medically examined Ms. Abida Khatoon to ascertain her bony age and given the report Ex.PW9/A as per which the bony age of Abida Khatoon was between 14 to 17 275 years. PW-10 Sh. Ajay Pandey, MM has recorded the statement under Sec.164 CrPC Ex.PW2/A and Ex.PW10/B of Ms. Abida Khatoon and Ms. Sweety respectively.

15. PW-11 SI Arun Kumar is the IO. Since he got the secret information, conducted the raid with W/ASI Rama Saroha and other police officials and remained associated in all the four cases, his statement is most crucial. He has stated that on 11.11.2006 while he was posted at PS RMD, one Mohd. Shamir came to the PS at 2.30 pm and got recorded his statement Ex.PW1/A, he made the endorsement Ex.PW11/A on the basis of which FIR Ex.PW6/A was registered. He inspected the spot and at the instance of complainant, prepared the site plan Ex.PW1/B. Then on receiving the secret information that the kidnapped girl had been taken to Roorkee, he organised the raiding party and they all started from Delhi on 11.11.2006 at about 5.30 pm for Roorkeet and reached there during night time. They searched for the kidnapped girl and the offenders at the Bus Stand Roorkee. Next day morning at about 6.00 am while all of them were present at Bus Stand Roorkee, the complainant identified his daughter-in-law who was standing with a woman and boy, whose names were later on revealed as Sandhya Devi @ Sita Devi and Ramesh. He identified accused Ramesh to be the same person who kidnapped Abida Khatoon from Old Delhi 276 Railway Station. The kidnapped girl was recovered vide memo Ex.PW1/C and accused Sandhya Devi and Ramesh were arrested vide memos Ex.PW3/A and B and their personal search was conducted vide memos Ex.PW3/C and D. Both of them were interrogated and their disclosure statement Ex.PW1/D and E were also recorded. As the accused Sandhya Devi disclosed that one other person namely Satbir alongwith one other kidnapped girl was present at her house, they reached house of accused Sandhya Devi from where another girl namely Sweety was recovered vide memo Ex.PW3/E from the possession of Satbir and Pritam. On inquiry from Sweety, it was revealed that she was kidnapped by Satbir from the area of PS Gokul Puri. He made further inquiry from PS Gokul Puri and it was revealed that case FIR No.841/06 under Sec.365 IPC was already registered there. He arrested accused Satbir and Pritam (Both these accused already discharged in case FIR No.325/06 PS RMD) and recovered Rs.9000/- from accused Satbir paid to him by accused Pritam for purchasing Sweety. Thereafter they returned to Delhi alongwith all the accused persons and the recovered girls. Both the recovered girls were medically examined and their statements under Sec.164 CrPC were also got recorded. He has identified the currency notes of Rs.9000/- to be the same which were recovered from accused Satbir who 277 has already been discharged in case FIR No.325 PS RMD.

16. PW-3 W/ASI Rama Saroha, PW-7 Ct. Neeraj Kumar and PW-8 Ct. Gyanender have also deposed on the identical lines and corroborated the statement of PW-11 SI Arun Kumar regarding recovery of Abida Khatoon and Sweety from Roorkee.

17. PW-1 Mohd. Shamir, the complainant has stated that about six months back on 9th of September (he was examined on 11.5.2007), he alongwith his daughter-in-law Abida Khatoon came from Hawra by train which reached Old Delhi Railway Station on 10.11.2006 at about 8.45 pm. While he wanted to purchase tickets for local train for going to Ballabhgarh, his daughter-in-law told him that she wanted to talk to her brother and sister-in-law who were travelling in the same train. In the mean while, one boy who was hearing their talk, asked them as to where they wanted to go and on being told that they were going to Ballabhgarh and searching for other two known persons who have come from Hawra, that person took them to announcement booth where none was present. In the meantime, he went to the urinal and on return found his daughter-in-law and that person missing. He tried to search his daughter-in-law and when she could not be found, reported the matter to the police vide complaint Ex.PW1/A and also pointed out the spot to ASI Arun Kumar who prepared the site plan. PW-1 Mohd. 278 Shamir has further stated that on 11.11.2006 they left for Roorkee and made search for her daughter-in-law. Next day morning at about 9.30 am, he saw his daughter-in-law Abida with one person and one woman, whose names were revealed as Ramesh and Sandhya and his daughter-in-law was recovered vide memo Ex.PW1/C. Accused Ramesh and Sandhya were interrogated and their disclosure statements Ex.PW1/D and E were recorded. His daughter-in-law was handed over to him vide memo Ex.PW1/F. One another girl was also recovered from the accused persons. Thereafter they returned to Delhi and his daughter-in-law was produced before the Magistrate where her statement was recorded. She was sent for medical examination and after that again custody of his daughter-in-law was handed over to him vide memo Ex.PW1/G and thereafter he took his daughter-in-law to his native place.

18. PW-2 Ms. Abida Khatoon, the kidnapped girl has stated that it was 9th day of the month when she alongwith her father-in-law started from Hawrah and reached Delhi on 10th. She met her brother and bhabhi in the train but after getting down at Delhi Station, they separated. In the mean while, accused Ramesh came to them to assist in the search of her brother and bhabhi and took them inside Railway Station. In the mean while, her father-in-law went to the Urinal and accused 279 Ramesh took her from there to Roorkee and next day, she was recovered from accused Ramesh and Sandhya Devi from Roorkee and brought to the Police Station in Delhi. She was also got medically examined and also produced before in the Court where she made statement Ex.PW2/A as to how she was taken by Ramesh for selling her to someone else and that accused Ramesh and Sandhya Devi were trying to sell her to someone when she was recovered.

EVIDENCE IN CASE FIR NO.329/06 PS RMD

19. PW1 HC Ved Prakash is the Duty Officer who recorded the FIR Ex.PW1/A on the basis of rukka sent by SI Arun Kumar. He has also proved the copies of DD No.4 dated 15.11.2006 and DD No.13 dated 16.11.2006 as Ex.PW1/B and C respectively regarding the movement of SI Arun Kumar.

20. PW7 Dr. Kiran P.S., Radiologist, Aruna Asaf Ali Hospital had examined Km. Rukhsar to ascertain her bony age and as per her report Ex.PW7/A, Km. Rukhsar was between 12 to 14 years at the time of examination.

21. PW8 Sh. P.S. Malik, MM has proved the statement Ex.PW4/A recorded by him under sec. 164 CrPC of Km. Rukhsar.

22. PW4 Km. Rukhsar was examined after ascertaining her capability to understand the question and to answer them. 280 She has stated that her step mother Madina used to torture her and due to that reason she left home on 16.11.2006 and reached Old Delhi Railway station where accused Satbir met her. He induced her to accompany him by representing that he was also residing in Zevar but took her to Roorkee to the house of accused Sita. She was kept there for two days and thereafter accused Satbir and Sita took her to the house of accused Bina at Dehradun and sold her to Bina. She has further stated that accused Bina used to take household work from her and give food in return. Accused Bina also asked her to marry an old person for which she refused and one day police came to the house of accused Bina alongwith accused Satbir and Sita @ Sandhya Devi and recovered her vide memo Ex.PW2/A. Her grand mother Aamna was also called to Delhi. Police also recorded her statement Ex.PW4/A and sent her for medical examination. She was also produced in the Court for getting her statement recorded which is Ex.PW4/B.

23. PW9 SI Arun Kumar who was the raid officer and also investigating case FIR No.325/06 has made statement to the effect that during investigation of case FIR No.325/06, on the basis of disclosure statement made by the accused persons of that case that they had sold a girl to a lady namely Bina resident of Dehradun, Uttranchal, he alongwith other team members and 281 accused Satbir and Sandhya went to Dehradun. At the instance of accused Satbir and Sandhya Devi, raid was conducted at gali No.7, Tapovan Friends Colony, Dehradun and a girl namely Rukhsar was recovered from the house of accused Bina vide recovery memo Ex.PW2/A. He also recorded the statement Ex.PW4/A of recovered girl and after making endorsement sent the same for registratin of the case. He also prepared the site plan Ex.PW9/B at the instance of the complainant. The complainant was also got medically examined at Aruna Asaf Ali Hospital and her MLC Ex.PW9/C was obtained. He also got the statement of prosecutrix recorded under Sec. 164 CrPC. Accused Satbir, Bina and Sandhya were also arrested in this case vide arrest memos Ex.PW2/C to E. Accused persons were further interrogated and accused Bina and Sandhya made disclosure statement Ex.PW3/A and Ex.PW2/B. Grand mother of the prosecutrix was also called and custody of Rukhsar was handed over to her vide memo Ex.PW5/A.

24. PW2 Ct. Neeraj, PW3 W/ASI Rama Saroha and PW6 Ct. Pradeep have also deposed to the effect that they were members of the raiding party headed by PW9 SI Arun Kumar and accompanied him to Dehradun where at the instance of accused Satbir and Sandhya, girl Rukhsar was recovered from the house of accused Bina and they have fully supported and 282 corroborated the statement of raid officer PW9 SI Arun Kumar regarding recovery of Rukhsar from the house of accused Bina at the instance of accused Satbir and Sandhya.

EVIDENCE IN CASE FIR NO.330/06 PS RMD & 396/06 PS NDLS

25. In these two cases 15 witnesses have been produced by the prosecution. PW1 HC Narain Singh is the Duty Officer who has stated that on the basis of rukka sent by SI Arun Kumar he recorded the FIR No.330/06 and proved the copy of the same as Ex.PW1/A.

26. PW9 W/Ct. Ompati is a witness to the arrest and disclosure statement made by accused Babli and Ranjo.

27. PW7 Smt. Lalti is mother of recovered girl Madhu and she has stated that the police had handed over Madhu to her vide memo Ex.PW7/A but after one year she again left the house and her present whereabouts are not known.

28. PW14 HC Jasmer Singh has stated that on 17.11.2006 he was working as Duty Officer at PS NDLS and SI Arun Kumar had informed to him on telephone that one girl Gudia had been recovered from Ambala by Inspr. O.P. Sharma, Addl. SHO and he recorded the said information vide DD No.16-A, tue copy of which is Ex.PW12/A. The said DD was entrusted to SI Satish Chand for taking necessary action.

29. PW15 Dr. Kiran P.S., Radiologist, Aruna Asaf Ali 283 Hospital has examined the x-ray plates of girl Madhu to ascertain her bony age and opined her age as 25 years. She has proved her report as Ex.PW15/A.

30. PW6 is Gudia who was recovered from the house of accused Babli by the police at the instance of accused Satbir and Sandhya. She has stated that in November, 2006 she had a quarrel with her husband and in anger she left her village and came to Delhi. While she was sitting at New Delhi Railway Station, accused Ranjo met her and talked to her for some time and asked as to where she would go. Accused Ranjo persuaded her to accompany her and took her to Ambala to the house of accused Babli. In that house two other girls were already there, one of them was Madhu and the name of other girl she did not remember. She has further stated that the accused persons compelled her to marry an elderly person whom she did not know. When the police conducted the raid and recovered her alongwith other girls, she made statement Ex.PW6/A to the police.

31. PW8 ASI Rama Saroha has stated that on 17.11.2006 while she was posted at RMD, she alongwith Addl. SHO O.P. Sharma and other constables joined the investigation of this case. Accused Satbir and Sandhya @ Sita led them to Ambala Cantt to the house of accused Babli and informed that she was 284 keeping girls after kidnapping them. From the house of accused Babli, two girls namely Madhu and Gudia were recovered. On inquiry both the girls told that they were brought from Railway Station at Delhi and were being compelled to marry some unknown elderly person. Both accused Babli and Ranjo were present at the house at that time and they alongwith the recovered girls were brought to Delhi and produced before SI Arun Kumar. A case was also got registered at NDLS after making inquiries from Gudia.

32. PW12 SI Satish Chand has stated that on 17.11.2006 while he was posted at NDLS, he received copy of DD No.16A, copy of which is Ex.PW12/A, regarding the recovery of Gudia W/o Khurshid aged about 19-20 years from Ambala by Inspr. O.P. Sharma, Addl. SHO PS RMD and the said girl was kidnapped from New Delhi railway Station. On receipt of the said DD, he alongwith Ct. Ombir reached Old Delhi Railway Station where Gudia met and made statement Ex.PW6/A on which he made his endorsement and got the FIR Ex.PW1/A registered. After registration of the case, he got the statement under sec. 164 CrPC of Gudia recorded and thereafter he recorded the statement of witnesses and further investigation was entrusted to SI Sohan Lal.

33. Before the consolidation of cases bearing 285 FIRNo.330/06 and 396/06, five witnesses were examined in case FIR No.396/06.

34. PW1 Ct. Ravinder Singh has stated that accused Ranjo and Babli were produced in the Court of Sh. S.K. Gautam, MM on the basis of production warrant and both of them were formally arrested in this case vide arrest memos Ex.PW2/A and B and were also interrogated with permission of the Court.

35. PW3 SI Arun Kumar has stated that on 17.11.2006 he was investigating the case bearing FIR No.329/06 and he joined the raiding party constituted under the supervision of Addl. SHO Inspr. O.P. Sharma and went to Ambala alongwith two accused Sandhya Devi and Satbir who were already in custody. In the evening raiding party brought two girls namely Madhu and Gudia and their custody was handed over to him by Inspr. O.P. Sharma. During interrogation of Gudia, it was revealed to him that she was taken away from New Delhi Railway Station to Ambala by one Ranjo and kept under the possession of Babli at Ambala. He gave this information to PS NDLS which was recorded vide DD No.16-A. SI Satish Chand alongwith ct. Ombir came to PS RMD and he handed over to them the recovery memo in respect of the recovered girls and prosecutrix Gudia.

36. PW4 Ct. Ombir Sharma took the rukka of this case 286 which was prepared by SI Satish Chand and got the FIR registered and handed over the copy of FIR o SI Satish Chand for further investigation.

37. PW5 SI Sohan Lal has stated that on 30.11.2006 he formally arrested accused Ranjo and Babli in this case from the Court of Sh. S.K. Gautam, MM where they were produced on production warrant.

38. On behalf of State, Sh. S.C. Sharma, Addl. PP has submitted that in the instant case after recovery of Abida Khatoon from Roorkee, when accused Ramesh and Sandhya were trying to sell her, not only the case FIR No.325/06 was solved but on the basis of interrogation of these two accused persons many girls were recovered at the instance and from the possession of the accused persons involved in these four cases which is sufficient to prove that there was a deep rooted conspiracy to induce the girls who have come from outside and found alone at the railway stations or bus stands so that they could be induced to accompany and later on to sell them to elderly persons in the garb of marriage. Ld. Addl. PP has submitted that the testimony of all the girls recovered at the behest of and from the possession of the accused persons involved in these four cases is sufficient to prove the case of prosecution, hence they be convicted.

287

39. Sh. Narender Kumar, ld. Counsel for all the accused persons in all the four cases has submitted that there is no evidence to prove the conspiracy amongst the accused persons. He has also submitted that the case of prosecution is very weak and conviction cannot be based unless the evidence on record is sufficient to prove the guilt beyond reasonable doubt. It has been contended by ld. Defence counsel that in the case FIR No.325/06 there are contradictions in the statement of Abida Khatoon and her father-in-law as to how she dis-appeared from Old Delhi Railway Station and whether she was recovered from bus stand Roorkee or from the house of accused Sita @ Sandhya in Roorkee. Ld. Defence counsel has further contended that it is a case where neither the local police was contacted by Delhi Police at the time of effecting recovery nor any independent public witness was joined at the time of alleged recovery. Ld. Defence counsel has also contended that there are material contradictions in the statement of police officials regarding the vehicle used for going to different places to conduct the raid as PW1 Mohd Shamir has mentioned the vehicle used as Tata Sumo, PW3 ASI Rama Saroha has mentioned the vehicle used as white colour private vehicle, PW7 Ct. Neeraj Kumar has mentioned the vehicle used as Tavera, PW8 Ct. Gyanender Kumar has mentioned the vehicle used as Innova and PW11 SI 288 Arun Kumar has mentioned the vehicle used as Scorpio. No document has been placed on record regarding taking away of the vehicle and making payment of hire charges and in these circumstances even visit of the raiding party to Roorkee, Dehradun or Ambala is highly doubtful. Ld. Defence counsel has also contended that in the telegrams Ex.DW1/A and B husband of accused Bina has specifically mentioned that Bina was taken on 15.11.2006 by the police. As per statement of Km. Rukhsar, she was in the house of accused Bina on 16.11.2006 and in the circumstances it is a clear cut case of false implication of accused Bina specially when they were not produced before any Court or Police Station on way to Delhi. It has been further contended that the statement of the recovered girls that accused persons were compelling them to marry elderly persons or that there was any plan to sell them is nothing but hear say as they have not specified as to whom they were being sold and in the circumstances the case against the accused persons is very weak and they be acquitted.

40. I have considered the rival contentions and carefully gone through the record. So far as the offence of conspiracy is concerned, the proof of offence of conspiracy in most cases require some kind of physical manifestation or agreement. The physical manifestation may not be proved by overt acts but may 289 be evidenced by conscience acts or conduct of parties and reasonably clear to mark their concurrence. Where evidence is clear, offence of conspiracy may be proved by necessary implications. In these cases, on the complaint being lodged by Mohd Shamir, father-in-law of Abida Khatoon in FIR No.325/06, the matter was investigated by SI Arun Kumar and on getting the secret information that the kidnapped girl had been taken to Roorkee, he immediately formed a raiding party and left for Roorkee at 5.00 PM. Next day at 6.00 AM the complainant Mohd Shamir identified his daughter-in-law while she was present with accused Ramesh and Sandhya @ Sita. After recovering Abida Khatoon, SI Arun Kumar interrogated accused Ramesh and Sandhya and on their disclosure one another girl namely Sweety was recovered from the house of accused Sandhya when she was being sold to one Pritam Lal by accused Satbir and even part of the sale proceed i.e. Rs.9,000/- were also recovered from him. However, accused Satbir and Pritam Lal both stand discharged vide order dated 21.3.2007 of my ld. Predecessor in case FIR No.325/06. Though accused Satbir stands discharged in this case but it was on the basis of his disclosure statement of accused Satbir and Sandhya that the raiding party went to Dehradun and at the behest of these accused persons, kidnapped child Rukhsar was recovered from 290 the possession of accused Bina for which case FIR No.329/06 was registered and then on their further interrogation about accused Babli and Ranjo who were also in the same trade and accomplice of Satbir and Sandhya @ Sita, two more girls namely Madhu and Gudia were recovered from Ambala from the possession of Babli and Ranjo. This connection between all the accused persons itself is sufficient to establish the conspiracy amongst them to kidnap/abduct girls from different places like Railway Stations and Bus Stands and keep them in confinement so that they could be sold in the garb of marriage. The recovery of so many girls at the behest of all the accused persons is sufficient to prove the offence of conspiracy beyond reasonable doubt.

41. So far as certain contradictions pointed out by ld. Defence counsel in the testimony of witnesses either on the make of vehicles used for going out of station by the raiding party or as to whether Abida Khatoon was recovered in case FIR No.325/06 from bus stand Roorkee or from the house of accused Sandhya is concerned, these cannot be termed as material contradictions. The fact that has been proved by the prosecution is that Abida Khatoon was kidnapped from Old Delhi Railway Station and was recovered from the possession of accused Ramesh and Sandhya from Roorkee. Whether it is bus stand or 291 it is a house of accused Sandhya or Ramesh, it has no adverse effect so far as testimony of Abida Khatoon is concerned. It cannot be ignored that as per bony age report Ex.PW9/A, Abida Khatoon was about 14-17 years of age. She has signed her statement and the documents in Bengali and had come to Delhi from Hawrah only on the day prior of her kidnapping and in view of the entire circumstances, while appearing in the witness box, it may not be possible for her to remember whether it was bus stand in Roorkee or house of accused Sandhya in Roorkee as she had gone to the house of accused Sandhya also when Sweety was recovered.

42. In State of U.P. vs. M.K. Anthony, AIR 1985 SC 48 following guidelines have been laid down by the Apex Court for the appraisal of the evidence :

"While appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole, appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, draw backs and infirmities, pointed out in the evidence as a whole and evaluate them to find out whether, it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies of trivial matter, not touching the core of the case, hypertechnical approach by taking sentence torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit 292 rejection of evidence as a whole."

Their Lordships further observed :

"Unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention, and reproduction differ with individuals. Cross-examination is an unequal dual between the rustic and refined lawyer."

43. In another case Zamir Ahmed Vs. The State 1996 Cri.L.J. 2354 where while discussing the provisions of Section 3 of the Evidence Act, it was held as under:-

"It would be a hard nut to crack to find out a case which is bereft of embellishment, exaggeration, contradictions and inconsistencies. The said things are natural. Such contradictions and inconsistencies are bound to creep in with the passage of time. If the witnesses are not tutored they would come out with a natural and spontaneous version on their own. The two persons on being asked to reproduce a particular incident which they have witnesses with their own eyes would be unable to do so in like manner. Each one of them will narrate the same in his own words according to his own perception and in proportion to his intelligence power of observation."

44. In case FIR No.325/06 from the statement of complainant Mohd Shamir it stands proved that he and his daughter-in-law were brought by accused Ramesh to announcement booth to assist them in searching their relative but taking advantage of the fact that the complainant went to urinal leaving his 14-15 years daughter-in-law near the booth, accused 293 Ramesh kidnapped her from the guardianship of her father-in- law and took her to Roorkee. From the statement of police witnesses specially W/ASI Rama Saroha (PW3) and IO SI Arun Kumar (PW11) it stands proved that they had recovered Abida Khatoon on the identification of her father-in-law from the possession of accused Ramesh and Sandhya @ Sita from Roorkee. PW2 Abida Khatoon has also correctly identified both the accused persons namely Ramesh and Sandhya.

45. In case FIR No.329/06 it stands proved from the testimony of Km. Rukhsar, a child aged about 14 years fed up with the torture of her step mother, left home and reached Railway Station from where accused Satbir induced her to accompany him to Zevar to meet her grand mother claiming that he was also resident of Zevar. Thereafter first he took Km. Rukhsar to Roorkee to the house of Sandhya @ Sita and from there both Satbir and Sandhya took her to Dehradoon and sold her to Bina for Rs.12,500/- which she came to know from the talks of Sandhya @ Sita with Bina. This child has also correctly identified accused persons Satbir and Sandhya to be the persons who handed over her to accused Bina from where she was recovered by the police. Her medical examination report Ex.PW7/A shows that she was just 12-13 years of age at that time and had been recovered vide recovery memo Ex.PW2/A 294 from Dehradun at the pointing out of accused Satbir and Sandhya. PW9 SI Arun Kumar, who had recovered the child Rukhsar from Dehradun, had categorically stated that during investigation of case FIR No.325/06 PS RMD, on the basis of disclosure statement made by accused Satbir and Sandhya, they went to Gali No.7, Tapovan Friends Colony, Dehradun, Uttranchal and at the instance of Satbir and Sandhya conducted the raid there and recovered Rukhsar vide recovery memo Ex.PW2/A. Later on the girl was handed over to her grand mother by the police. Testimony of child Rukhsar on the point of her kidnapping as well as taking away to Rorrkie and Dehradun and identification of the accused persons does not suffer from any kind of infirmity.

46. Now coming to the case FIR Nos.330/06 and 396/06, the prosecution has been able to prove that at the instance of accused Satbir and Sandhya, who were on police remand in case FIR No.329/06 PS RMD that a lady Babli resident of Ambala is also in the same trade, a raiding party was organised by Inspr. O.P. Sharma, Addl. SHO and raid was conducted at 25-D Inder Puri, Ambala Cantt at the house of Babli and from there from the possession of accused Babli and Ranjo, two girls namely Madhu and Gudia were recovered who had been kidnapped from Old Delhi Railway Station and New Delhi Railway Station 295 respectively. Recovery of these two girls from the possession of accused Babli and Ranjo stand proved from the statement of Gudia (PW6) who categorically stated that after having quarrel with her husband she left home and came to New Delhi Railway Station where accused Ranjo persuaded her to accompany her to Ambala and took her to the house of Babli where two girls were already there, one was Madhu and that accused persons were compelling her to marry some elderly person and that she was recovered by the police after conducting a raid. In these cases another recovered girl Madhu remained untraceable but her mother Lalti appeared to state that after recovery of Madhu by the police from Ambala, she was handed over to her but later on Madhu again left the house and her present whereabouts are not known. No doubt Madhu could not be produced and examined by the prosecution but statement of PW6 Gudia that she was taken to Ambala by accused Ranjo and kept in the house of Babli and they were compelling her to marry some elderly person is sufficient to prove the guilt of these two accused persons that they were also part of the same racket which kidnapped minor and young girls from places like Railway Stations and Bus Stands etc and kept them confined till a suitable party is found to whom the girls could be handed over after charging money, may be in the garb of marriage. 296

47. On appreciating the testimony of the recovered girls i.e. Abida Khatoon, Rukhsar who were minor and of Gudia who was major and married lady aged about 20 years, I find that their testimony is truthful, natural and inspire confidence.

48. Thus from the above discussion not only the prosecution has been able to prove a deep rooted conspiracy amongst all the accused persons to kidnap/abduct minor/young girls but also to keep them secretly confined at far away places like Roorkee, Dehradun and Ambala and then to sell them to some elderly person. No doubt, none of the recovered girl could specify as to whom they were being sold but it cannot be ignored by this Court that transaction, if any, was to take place between the purchaser and the seller and the girls were to be used only as commodity with no say in the matter, so there was no question of their coming to know about the prospective buyer. Here it would not be out of place to mention that immediately after recovery of Abida Khatoon in case FIR No.325/06, raid was conducted at the house of Sandhya and accused Satbir was found in possession of Rs.9,000/- which he had received from prospective buyer Pritam Lal for purchasing a girl Sweety and that FIR Bo.841/06, under Sec. 365 IPC was already registered at PS Gokal Puri regarding her kidnapping. It is different thing that these two accused stood discharged vide order dated 297 21.3.2007 of my ld. Predecessor and though SI Arun Kumar has proved the recovered currency notes as Ex.P1 to P9 received after sale of Sweety, the accused being already discharged, this evidence can only be considered to draw an inference against these accused persons that infact they were dealing in sale of girls after kidnapping/abducting themselves or through their agents. The evidence on record is sufficient to prove the guilt of the accused persons beyond reasonable doubt. FIR No.325/06 PS RMD

49. The prosecution has been able able to prove beyond reasonable doubt that the accused persons formed a conspiracy to kidnap/abduct young girls from places like ISBT, Railway Station to secretly confine them till prospective buyer is found so that they could be sold to elderly persons in the garb of marriage and pursuant to the said conspiracy, accused Ramesh kidnapped Abida Khatoon, (aged between 14 to 17 years as per bony age report) from the Railway Station from the lawful guardianship of her father-in-law with intent to secretly and wrongfully confine her and accused Sita Devi @ Sandhya knew that Abida Khatoon had been kidnapped by her co-accused Ramesh and with this knowledge, she confined Abida Khatoon at her place, hence accused Sandhya @ Sita Devi and Ramesh are also held guilty for the offence punishable under Sec.120-B 298 IPC and under Sec.363/365/368 r/w 120-B IPC and convicted accordingly.

FIR NO.329/06 PS RMD

50. From the evidence adduced by the prosecution especially the testimony of child Rukhsar, (aged about 14 years as per bony age report), it is established beyond reasonable doubt that in pursuant of the conspiracy entered into by the accused persons i.e. to kidnap/abduct young girls from places like ISBT, Railway Station so that after keeping them confined for some time, they could be sold to elderly persons in the garb of marriage, child Rukhsar was kidnapped by accused Satbir from Railway Station with intent to secretly and wrongfully confine her and Child Rukhsar was left with accused Sandhya and they enticed her to accompany them to Dehradun where she was sold to accused Bina and knowing fully well that that Rukhsar had been kidnapped by her co-accused Satbir, accused Bina confined Rukhsar at her place. Although Rukhsar herself left her house, being unable to bear the torture by her step- mother, she continued to be in lawful custody of her parents/guardian. If judgment is need on this point, reliance can be place on AIR 1967 All. 158. Hence, accused Bina, Sandhya @ Sita Devi and Satbir are held guilty for the offence punishable under Sec.120-B IPC and accused Sandhya Devi and Satbir 299 are also held guilty for the offence punishable under Sec.363/365/368 r/w 120-B IPC and and accused Bina is also held guilty for the offence punishable under Sec.365/368 IPC and convicted accordingly.

FIR NO.330/06 PS RMD & FIR NO.396/06 PS NDLS

51. Against these two accused persons namely Babli and Ranjo also, it is proved by prosecution beyond reasonable doubt that on the basis of interrogation of the accused persons in above noted cases, two girls namely Madhu and Gudia were recovered from their possession and statement of Gudia is sufficient to establish the case of prosecution even in respect of Madhu who is not traceable. Hence accused Babli and Ranjo also being part of the same racket and the girls Gudia and Madhu were recovered from their possession only on the basis of interrogation of the accused persons Satbir and Sandhya Devi in case FIR No.329/06 PS RMD who led the police to Ambala from where Madhu and Gudia were recovered from their possession and statement of Gudia that she was being compelled by these accused persons to re-marry to some elderly person is sufficient to prove their guilt for the offence punishable under Sec.120-B IPC and under Sec.363/365/366/368 r/w 120-B IPC. Hence, accused Babli and Ranjo are held guilty for the offence punishable under Sec.120-B IPC and under 300 Sec.363/365/366/368 r/w 120-B IPC and convicted accordingly in both the cases.


Announced in the open Court

25.2.2009                           ( PRATIBHA RANI )
                                    ASJ-01(Central)/Delhi




                              301
                               ORDER ON SENTENCE

      IN THE COURT OF SMT. PRATIBHA RANI,
       ASJ-01(CENTRAL), TIS HAZARI COURTS,
                     DELHI
                       ***
(1) SC No.135/07


State              Vs   (1) Satbir Nagar @ Sattu
                            S/o Sh. Chidda Singh
                            (Discharged)

                        (2) Pritam Lal
                            S/o Sh. Jail Singh
                            (Discharged)

                        (3) Ramesh Kumar
                            S/o Sh. Ratram
                            R/o Vill. Phalna, The Bali,
                            Distt. Paali, Rajasthan.

                        (4) Sandhya Devi @ Sita Devi
                            W/o Sh. Surjan Lal Gupta
                            R/o Gali No.15, Krishna
                            Nagar,Roorkee (Uttrachal).

                        FIR No.325/06
                        Under Sec.120-B & 363/365/368
                        r/w 120-B IPC
                        PS : RMD

                        Arguments heard on : 26.2.09
                        Order pronounced on : 26.2.09
                        ***
(2) SC No.204/07

State              Vs   (1) Bina
                            W/o Sh. Shrikant
                            R/o Gali No.7, Tapovan,
                            New Friends Colony,
                            Dheradun, Uttranchal.


                        302
                         (2) Sandhya Devi @ Sita Devi
                            W/o Sh. Surjan Lal Gupta
                            R/o Gali No.15, Krishna
                            Nagar,Roorkee,
                            Uttranchal.

                        (3) Satbir Nagar @ Sattu
                            S/o Sh. Chidda Singh
                            R/o Vill. Sadula Pur,
                            PS Visrak, Distt. Gautam
                            Budh Nagar, UP.


                        FIR No.329/06
                        Under Sec.120-B & 363/365/368
                        r/w 120-B IPC
                        PS : RMD

                        Arguments heard on : 26.2.09
                        Order pronounced on : 26.2.09

                        ***

(3) SC No.259/07

State              Vs   (1) Babli
                            W/o Sh. Pradeep
                            R/o 25-D, New Inder Puri
                            Ambala Cantt., Haryana.
                            Also at :
                            Vill. Behram, PS Narvad,
                            Distt. Saharanpur, UP.

                        (2) Ranjo
                            W/o Sh. Sujeet Mehto,
                            R/o Vill. Sugraha, Baroni,
                            Distt. Begusarai, Bihar.

                        FIR No.330/06
                        U/s.120-B & 363/365/366/368
                        r/w 120-B IPC
                        PS : RMD


                        303
                               Arguments heard on : 26.2.09
                              Order pronounced on : 26.2.09


                              ***

(4) SC No.262/07


State                Vs       (1) Ranjo
                                  W/o Sh. Sujeet Mehto,
                                  R/o Vill. Sugraha, Baroni,
                                  Distt. Begusarai, Bihar.

                              (2) Babli
                                  W/o Sh. Pradeep
                                  R/o 25-D, New Inder Puri
                                  Ambala Cantt., Haryana.


                              FIR No.396/06
                              U/s.120-B & 363/365/366/368
                              r/w 120-B IPC
                              PS : NDLS

                              Arguments heard on : 26.2.09
                              Order pronounced on : 26.2.09

                              ***


ORDER ON SENTENCE

I have heard the convicts Satbir Nagar, Sandhya Devi, Ramesh, Bina, Ranjo and Babli through Sh. Narinder Kumar, Advocate on the point of sentence.

2. On behalf of convict Satbir Nagar, it has been submitted that he is the first offender and aged about 32 years. 304 He is the sole bread earner in the family and having three minor children to support. It is further submitted that he is already in custody since his arrest in this case in November, 2006.

3. On behalf of convict Sandhya Devi, it has been submitted that she is aged about 50 years and having two children and daughter aged about 21 years is of marriageable age. It is further submitted that she is heart patient and under treatment at Tihar Jail. It is also submitted that she is not the previous convict and that her husband is mad. It is further submitted that she is already in custody since her arrest in this case in November, 2006.

4. On behalf of accused Ramesh, it has been submitted that he is a young boy aged about 27 years and unmarried. He remained in custody for about 22 months. It has been further submitted that he is the first offender and chance may be given to him to reform himself.

5. On behalf of accused Bina, it has been submitted that she is aged about 55 years and having nine children and three children i.e. one daughter aged about 24 years and two sons aged about 20 and 22 years are yet to be married. Marriage of her daughter has already been settled. She is the first offender and she remained in custody for about five-and-a-half months.

6. On behalf of accused Ranjo, it has been submitted 305 that she is aged about 30 years and having two minor children to support. Her husband is the rickshaw puller. It has been further submitted that she is the first offender and already remained in custody for about 20 months.

7. On behalf of accused Babli, it has been submitted that she is aged about 40 years and having three minor school going children i.e. two sons and one daughter to support and that her husband, who was reputed Doctor, has expired on 19.1.2009 i.e. during the trial of this case. She is the first offender and already remained in custody for about 18½ months.

8. I have considered the submission made on behalf of convicts. The question to be considered by this Court is whether the circumstances explained by the convicts should persuade this Court to let them off with lenient sentence. The question that comes to mind is whether the persons like the convicts before this Court should be dealt with softly just for the reason that some of convicts have small children to look after or sole bread earner or being widow has a family to support or the husband being mad has to look after the entire family. The convicts in the instant case are of young and middle age having able body to earn their livelihood by hard work. As per convict Babli, her husband was a reputed doctor. The question arises as to what was the compulsion before them to run a racket like the present 306 one and thereby spoiling the life of innocent girls and letting their family to suffer throughout their life for loss of the daughter/wife and also face humiliation by the society that the girl has eloped. Four of the convicts before this Court are female having daughters and still they did not hesitate in disposing off the daughters of others as 'commodity' just to have some pecuniary gain. It cannot be ignored by this Court that taking away of minor/young girl by anyone leaves such a scar on the character and lives of the victim that despite recovery and rehabilitation by the family and society throughout her life she is not able to lead a normal life. The convicts cannot be termed as first offenders in view of the recovery of so many girls from and at their instance. The offences committed by them is not only against the individual but also against the society at large. Taking into consideration the rising number of missing reports about the young girls, the present racket can only be tip of an iceberg. If lenient view is taken in the case of present convicts in view of their family circumstances, then it will send a wrong signal to other persons involved in such type of rackets and may not act as deterrent for the potential offenders. Hence, any leniency shown towards them would be a misplaced sypmpathy.

9. Considering the entire facts and circumstances of the cases, convicts are sentenced as under :-

307 FIR NO.325/06 PS RMD

10. Convicts Sandhya @ Sita Devi and Ramesh are sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.5000/- each for the offence punishable under Sec.120-B IPC. In default of payment of fine, they shall undergo simple imprisonment for a period of three months. Convicts Sandhya @ Sita Devi and Ramesh are also sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.5000/- each for the offence punishable under Sec.363/365/368 r/w 120-B IPC. In default of payment of fine, they shall undergo simple imprisonment for a period of three months. All the sentences awarded to the convicts shall run concurrently. The period of detention already undergone by the convicts during investigation/trial of the case shall be set off under Sec. 428 CrPC.

FIR NO.329/06 PS RMD

11. Convicts Bina, Sandhya @ Sita Devi and Satbir are sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.5000/- each for the offence punishable under Sec.120-B IPC. In default of payment of fine, they shall undergo simple imprisonment for a period of three months. Convicts Sandhya @ Sita Devi and Satbir are also sentenced to undergo rigorous imprisonment for a period of four 308 years and to pay a fine of Rs.5000/- each for the offence punishable under Sec.363/365/368 r/w 120-B IPC. In default of payment of fine, they shall undergo simple imprisonment for a period of three months. Convict Bina is also sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.5000/- for the offence punishable under Sec.365/368 IPC. In default of payment of fine, she shall undergo simple imprisonment for a period of three months. All the sentences awarded to the convicts shall run concurrently. The period of detention already undergone by the convicts during investigation/trial of the case shall be set off under Sec. 428 CrPC.

FIR NO.330/06 PS RMD

12. Convicts Babli and Ranjo are sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.5000/- each for the offence punishable under Sec.120- B IPC. In default of payment of fine, they shall undergo simple imprisonment for a period of three months. Convicts Babli and Ranjo are also sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.5000/- each for the offence punishable under Sec.363/365/366/368 r/w 120-B IPC. In default of payment of fine, they shall undergo simple imprisonment for a period of three months. All the sentences 309 awarded to the convicts shall run concurrently. The period of detention already undergone by the convicts during investigation/trial of the case shall be set off under Sec. 428 CrPC.

FIR NO.396/06 PS NDLS

13. Convicts Ranjo and Babli are sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.5000/- each for the offence punishable under Sec.120- B IPC. In default of payment of fine, they shall undergo simple imprisonment for a period of three months. Convicts Ranjo and Babli are also sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.5000/- each for the offence punishable under Sec.363/365/366/368 r/w 120-B IPC. In default of payment of fine, they shall undergo simple imprisonment for a period of three months. All the sentences awarded to the convicts shall run concurrently. The period of detention already undergone by the convicts during investigation/trial of the case shall be set off under Sec. 428 CrPC.

14. Case property i.e. cash of Rs.9000/- (in case FIR no.325/06 PS RMD) shall be confiscated to State after period of appeal, if any. Original judgment be placed in case FIR no.325/06 PS RMD and copy of the judgment be also placed in 310 case FIR Nos.329/06 PS RMD, 330/06 PS RMD and 396/06 PS NDLS. Files be consigned to Record Room.


Announced in the open Court

26.2.2009                           ( PRATIBHA RANI )
                                    ASJ-01(Central)/Delhi




                              311
         IN THE COURT OF SMT. PRATIBHA RANI,
          ADDL. SESSIONS JUDGE-01(CENTRAL),
             TIS HAZARI COURTS, DELHI.

(1) SC No.75/07

State             Vs    (1) Rajender,
                            S/o Sh. Dhan Singh,
                            R/o 6618, Nabi Karim,
                            Delhi.

                        (2) Kishan,
                            S/o Sh. Shankar Lal,
                            R/o 5/4, Tank Road,
                            Karol Bagh, New Delhi.

                        (3) Neeraj,
                            S/o Raman Gopal,
                            R/o C-39, Vikas Nagar,
                            Uttam Nagar, Delhi.

                        (4) Tek Singh,
                            S/o Sh. Amar Singh,
                            R/o WZ-47,
                            Lajwanti Garden,
                            Maya Puri, New Delhi.

                        FIR No.191/04
                        U/s 399/402 IPC
                        PS : Nabi Karim

                        Date of Institution : 23.07.04
                        Arguments heard on : 26.2.09
                        Order pronounced on : 26.2.09
                        ***

(2) SC No.73/07

State             Vs    Neeraj,
                        S/o Raman Gopal,
                        R/o C-39, Vikas Nagar,
                        Uttam Nagar, Delhi.


                        312
                               FIR No.193/04
                              U/s 25/54/59 Arms Act.
                              PS : Nabi Karim

                              Date of Institution : 14.6.04
                              Arguments heard on : 26.02.09
                              Order pronounced on : 26.2.09

                              ***
(3) SC No.74/07

State                Vs       Tek Singh,
                              S/o Sh. Amar Singh,
                              R/o WZ-47,
                              Lajwanti Garden,
                              Maya Puri, New Delhi.

                              FIR No.192/04
                              U/s 25/54/59 Arms Act,
                              PS : Nabi Karim

                              Date of Institution : 2.8.04
                              Arguments heard on : 26.02.09
                              Order pronounced on : 26.2.209

                              ***
JUDGMENT

By this common judgment I shall dispose of three cases bearing FIR Nos. 191/04, 192/04 and 193/04. Briefly stating the case of the prosecution is that on 3.6.2004 Inspector Banwari Lal, Addl. SHO, PS Nabi Karim received secret information that some persons would assemble near Sainik Aaram Greh, close to Railway Line for planning to commit dacoity at True Blue Bar & Restaurant, Qutub road at about 10.30 or 11.00 pm. The secret information was recorded vide 313 DD No.33-A and under the supervision of Addl. SHO Inspector Banwari Lal, a raiding party was organised consisting of SI Ishwar Singh, HC Suresh Kumar, HC Om Parkash, HC Dungar Singh, Ct. Yograj, Ct. Bijender, Ct. Ravinder, Ct. Raj Kumar, Ct. Bal Kishan and Ct. Prem Chand, who were also armed with weapons, torch and dandas. HC Dungar Singh was in civil clothes and all of them reached near T.T. Rest House close to Railway Line. The secret informer disclosed that the persons who would come for committing the dacoity, would assemble in a vacant room near Water Tank. The members of the raiding party were briefed and they took their positions. Some public persons were also requested to join the raiding party but none agreed and due to paucity of time, no action was taken against them. At about 10.00 pm while Addl. SHO alongwith HC Dungar Singh took position near the back wall of that room to hear the conversation, other members took position in different directions. At about 10.15 pm, some persons entered that room silently and started talking to each other. They were discussing the plan to commit the dacoity which was overheard by Addl. SHO and HC Dungar Singh and Addl. SHO warned the inmates of the room not to move from their position and on the direction of Addl. SHO, the other members of the raiding party also moved towards that room to apprehend those persons who tried 314 to escape. The raiding party members managed to overpower four accused persons and their one associate managed to escape. The apprehended accused persons namely Rajender, Kishan, Neeraj and Tek Singh were interrogated and arrested. During their search, from accused Tek Singh one dessi katta was recovered from his right side dub, from accused Neeraj one buttondar knife was recovered, from accused Kishan one dager like knife was recovered and from accused Rajender one iron rod was recovered, regarding which proceedings were conducted by respective IOs. After completion of investigation, a chargesheet in respect of case FIR No.191/04 for the offence punishable under Sec.399/402 IPC was filed all the four accused. Separate chargesheets in respect of case FIR No.192/04 and FIR No.193/04 for the offence punishable under Sec.25/54/59 Arms Act were also filed against accused Tek Singh and Neeraj respectively being found in possession of illegal weapons.

2. After complying with the requirement of Sec.207 CrPC, the cases were committed to the Court of Sessions

3. After hearing on the point of charge, all the four accused persons were charged on 4.10.2004 for the offence punishable under Sec.399/402 IPC. Accused Neeraj was also charged for the offence punishable under Sec.25 Arms Act. Accused Tek Singh was also charged for the offence punishable 315 under Sec.25 Arms Act. All the accused persons pleaded not guilty to the above charges and claimed trial.

4. Prosecution has examined ten witnesses i.e. PW-1 HC Suresh Chand, PW-2 HC Hem Raj, PW-3 HC Om Parkash, PW- 4 Ct. Bijender, PW-5 HC Rajinder Singh, PW-6 Inspector Banwari Lal, PW-7 Ct. Yograj, PW-8 SI Ishwar Singh, PW-9 HC Sumer Singh, and PW-10 HC Dungarsi Dass in all in case FIR No.191/04. Four witnesses i.e. PW-1 HC Ram Gopal, PW- 2 HC Rajinder Singh (also examined as PW-5 in case FIR No.191/04), PW-3 Inspector Banwari Lal (also examined as PW-6 in case FIR No.192/04) and PW-4 Ct. Ravinder were also examined in case FIR No.192/04. Vide order dated 19.9.2007, all the three cases bearing FIR No.191/04, 192/04 and 193/04 were clubbed together for the purpose of recording the evidence as the witnesses of these three cases were common.

5. All the four accused persons were examined under Sec.313 CrPC to enable them to explain about the evidence appearing against them in which they have denied the case of prosecution and stated that they have been falsely implicated in this case. Accused Rajender has stated that he was lifted by the police while he was going to his house from Gali Tel Mill after giving fodder to Ox belonging to his Jija and later on he has been falsely falsely implicated in this case and that nothing 316 incriminating was recovered from his possession. Accused Kishan has stated that he was lifted by some police officials from red light, Ajmeri Gate while he was going to Ajmeri Gate for purchasing some stitching material used for ladies suit. He was taken to PS Nabi Karim by those police officials and later on he was falsely implicated in this case. Accused Tek Singh and Neeraj have stated that they had gone to Shiela Cinema to see a movie show of 12.00 noon to 3.00 pm. Accused Neeraj had a quarrel with some boy as that boy had spit on him. When they were purchasing ticket for the movie, that boy alongwith some police officials came there and police took them to PS Nabi Karim where they were made to sit. Later on that boy was allowed to go and they have been falsely implicated in this case. Accused persons have not led any evidence in their defence.

6. I have heard Sh. S.C. Sharma, Addl. PP for the State and ld. Counsels for the accused persons and carefully gone through the record.

7. Out of the witnesses examined by the prosecution, PW-1 HC Suresh Chand, PW-3 HC Om Parkash, PW-4 Ct. Bijender, PW-7 Ct. Yograj, PW-8 SI Ishwar Singh, PW-10 HC Dungarsi Dass (examined in case FIR No.191/04) and PW-3 Inspector Banwari Lal (Retd.) and PW-4 Ct. Ravinder (examined in case FIR No.192/04) are the members of the 317 raiding party. PW-2 HC Hemraj is the Duty Officer who has recorded the FIR No.191/04 and proved the copy of the same as Ex.PW2/A and his endorsement made on the rukka as Ex.PW2/B. PW-5 HC Rajinder Singh was working as MHC(M) at the relevant time and proved the copy of entry No.1620 as Ex.PW5/A vide which two cloth pullandas sealed with the seal of ISN alongwith copies of two seizure memos were deposited in the malkhana by the IO. PW-9 HC Sumer Singh has recorded the DD No.33-A as informed by Addl. SHO Inspector Banwari Lal, copy of which is Ex.PW8/A.

8. PW-1 is HC Ram Gopal (examined in FIR No.192/04) to whom investigation of case FIR no.192/04 was entrusted. He has stated that after the investigation was entrusted to him, he went to the spot i.e. Sainik Aaram Greh near New Delhi Railway Station and met HC Dungar Singh there who handed over to him the cloth pullanda sealed with the seal of DDM alongwith seizure memo and form FSL and also the accused Tek Singh. He prepared the site plan Ex.PW1/A at the instance of HC Dungar. In the meantime, Ct. Ravinder also reached the spot and handed over the copy of FIR and rukka to him. He interrogated the accused and formally arrested him vide memo Ex.PW1/B and his personal search was conducted vide memo Ex.PW1/C. He has further stated that thereafter he recorded the statement of 318 witnesses and accused was sent to hospital for his medical examination and case property was deposited in the malkhana. Subsequently the case property i.e. the katta recovered from accused Tek Singh was sent to Laboratory for examination and after obtaining sanction under Sec.39 Arms Act, chargesheet was filed against the accused.

9. PW-2 HC Rajinder Singh who was working as MHC(M) at the relevant time, when examined in case FIR No.192/04, has proved the relevant entries in register No.19 and 21 and copy of RCs as Ex.PW2/A to D respectively regarding deposit of one cloth pullanda sealed with the seal of DDM alongwith copy of seizure memo by HC Ram Gopal and sending of case property to Laboratories for examination.

10. In case FIR No.191/04 PW1 HC Suresh Chand, PW3 HC Om Parkash, PW4 Ct. Bijender, PW^ Inspr. Banwari Lal, PW7 Ct. Yog Raj, PW10 HC Doongarsi Dass and PW8 SI Ishwar Singh, IO of the case are the material witnesses whose testimony is to be considered to decide these cases.

11. In case bearing FIR No.192/04, the connected case under Arms Act against accused Tek Singh, PW1 HC Ram Gopal is the second IO, PW3 Inspr. Banwari Lal was heading the raiding party and PW4 Ct. Ravinder is also a material witness being part of the raiding party.

319

12. PW1 HC Suresh Chand has stated that on 3.6.2004 at about 9.00 pm Addl. SHO Inspr. Banwari Lal received secret information regarding assembly of some persons at Sainik Aramgrah at 10.30 or 11.00 pm to loot Blue True Bar & Restaurant at Qutab Road on which a raiding party was organised by Addl. SHO consisting of him, SI Ishwar Singh, HC Om Parkash, HC Doongarsi Dass, Ct. Bijender, Ct. ravinder, Ct. Bal Kishan, Ct. Raj Kumar, Ct. Yograj etc. HC Doongarsi Dass was armed with danda and others were having pistols. They reached the spot at 9.30 pm. Inspr. Banwari Lal asked some public persons to join the raid but none agreed. The informer pointed out the room near water tank and thereafter they took position at different places. At 10.00 pm they saw five persons coming secretly to that room. Their conversation was over heard by Addl. SHO and HC Doongarsi Dass as they were in civil clothes. Thereafter Addl. SHO alerted the three parties and they rushed towards the room. On seeing the police they tried to escape and the police party managed to apprehend four boys whereas the fifth managed to escape. Their names were revealed as Rajinder, Kishan, Neeraj and Tek Singh. On search Rajinder was found having one rod, Kishan was having one daggar, Neeraj was having buttondar knife and Tek Singh was having one dessi katta. Separate proceedings were conducted in 320 respect of the weapons recovered and the recovered weapons were taken into possession at the spot. Accused persons were also arrested and their personal search was also conducted and statement of witnesses were also recorded at the spot.

13. As this witness did not fully support the case of prosecution, he was cross-examined by the ld. Addl. PP for the State and when put in the leading form, he admitted the suggestions put by ld. Addl. PP regarding the manner of apprehension, recovery of weapons and the proceedings done in respect thereto as correct.

14. PW3 HC Om Parkash, although deposed on identical lines, has given the time of arrival of raiding party as 9.45 pm and the time of arrival of five persons in the room as 10.45 pm. He has also claimed that he and Addl. SHO were in civil clothes and they over heard the conversation amongst the five persons collected in that room. In his cross examination this witness has stated that the secret informer came to the PS at 9.00 pm, remained there only for 5-10 minutes and later on met them at the spot at around 10.30 pm and remained at the spot for about 45 minutes. In cross-examination this witness has also stated that he came to the spot on foot and Addl. SHO was with him at that time. He has further stated that at around 10.50 pm Addl. SHO called some public persons to join the raiding party and by 321 then informer was sent back. He has also given the time of his arrival at the spot at 9.45 pm and that he reached on foot to the spot and remained there for 5-6 hours. He has also given the measurements of the room in which accused had assembled as 12 ft X 8 ft with height of 10 ft - 11 ft having one door and one window and further stated that he could see one rod with the accused but other weapons were concealed. During further cross-examination he replied that Addl. SHO alerted the police party at 11.00 pm. After the arrest of the accused persons, statement of all the police party members were recorded at the spot. Rukka was prepared at 4.00 am while sitting on the road under light and it was sent at 5.00 am. Ct. Bijender came to the spot at 6.00 am and they left the spot at about 7.00 or 7.30 am. He has admitted that his signatures were not taken on any paper by the IO in case bearing FIR No.191/04.

15. PW4 Ct. Bijender Singh also deposed about the formation of raiding party and arrival at the spot at 9.45 pm. He has stated that IO SI Ishwar Singh requested 5-6 public persons to join the raiding party but none agreed and at 10.15 pm five persons entered the vacant room and at 10.20 pm Addl. SHO gave warning to those persons to surrender.

16. PW6 Inspr. Banwari Lal has stated that after making entry in the daily diary vide DD No.33A, all the members of 322 raiding party alongwith the informer reached T.T. Rest House near railway line where informer pointed out a vacant room near water tank and thereafter he left. PW6 has stated that he asked 5-6 public persons to join the raid but none agreed and at 10.00 pm he divided the raiding party into four teams which took their position at different places and he alongwith HC Doongrsi Dass took position by the side of the wall behind the said room to hear the conversation as he and HC Doongarsi Dass were in civil clothes. He has stated that at 10.15 pm five persons came and started talking about their planning to commit dacoity at True Blue Bar on the point of pistol and knife and they were saying that one of them will engage the security guard in talking while remaining four will enter the Bar and robbed the cash on the point of pistol and knife and the person having pistol will come out of the Bar in the end and that they will collect at Karnail Singh Stadium to distribute the robbed amount. He has further stated that he warned those persons that they have been surrounded by the police party and they should not leave the room but on seeing the police party they tried to run away. On his direction all the three teams rushed towards that room and managed to apprehend four boys and one boy managed to ran away. On search by SI Ishwar Singh, accused Tek Singh was found in possession of one katta Ex.P1 (exhibited in case FIR 323 No.192/04) which he has kept in the right side dub of his pant and the same was handed over to HC Doonger Singh for conducting further proceedings. HC Suresh over powered accused Neeraj with the aid of the constables accompanying him and on his search he was found in possession of one buttondar knife Ex.P3. HC Suresh was directed to take further proceedings regarding recovery of knife from Neeraj. HC Om Parkash over powered accused Kishan with the aid of constables accompanying him and on search one daggar type churi Ex.P2 was recovered from his possession. Accused Rajinder was found in possession of one iron rod Ex.P1 (exhibited in case FIR No.191/04). This witness has also proved the arrest memos Ex.PW6/A to D of the accused persons and also their personal search memos of accused Rajinder and Kishan as Ex.PW6/E and F.

17. PW7 Ct. Yog Raj who was also member of the raiding party, has deposed on identical lines with the difference that formation of raiding party has been attributed to SI Ishwar Singh at 9.30 pm, time of arrival at the spot has been given as 9.45 pm, division of raiding party in three teams at 10.00 pm. In cross examination he has stated that he took the rukka at 12.40 am and returned after one hour. Writing work was done outside the room and they left the spot at 4.00 am.

324

18. PW8 SI Ishwar Singh has also deposed about the receipt of secret information by Addl. SHO Inspr. Banwari Lal about some persons who were to assemble near Sainik Aramgrah to commit dacoity at True Bar Restaurant at Qutab Road which was recorded vide DD No.33A. He has stated that raiding party was constituted by Addl. SHO and that HC Suresh and HC Om Parkash were armed with pistols and other staff were having dandas. He has also stated that Addl. SHO and HC Doongarsi Dass were in civil clothes and others were in uniform. He has given the time of leaving the PS at 9.30 pm, arrival at the spot at 9.45 pm and that informer was with them who pointed out the vacant room and thereafter 5-6 persons were requested to join the raid but none agreed. He has stated about the division of raiding party in three teams, taking position in different directions and arrival of five persons at 10.15 pm in that room and hearing their conversation by Addl. SHO and HC Doongarsi Dass and that he also moved to hear the conversation. He has also stated that Addl. SHO warned those persons and all the three teams rushed towards that room. On seeing the police party those persons started running and out of those five persons four were apprehended and one managed to escape. On search, accused Tek Singh was found in possession of one countrymade pistol Ex.P1 (exhibited in case FIR No.192/04) which was kept 325 by him in his right side dub. He handed over the said pistol to HC Dungar Dass for further investigation in respect of recovery of pistol. Accused Neeraj was apprehended by HC Suresh with the help of Ct. Yog Raj and Ct. Prem Chand and on his search one buttondar knife was recovered from him regarding which HC Suresh conducted separate proceedings. Accused Kishan and Rajinder were overpowered by HC Om Parkash with the help of Ct. Bal Kishan and Ct. Raj Kumar. On search, accused Kishan was found in possession of one dagger type chura and accused Rajinder was found in possession of one iron rod. HC Om Parkash produced both the accused Rajinder and Kishan before him alongwith the case property recovered from them. He has stated that he seized the recovered articles after keeping them in separate pullandas, he prepared rukka Ex.PW8/B and handed over the same to Ct. Bijender who got FIR Ex.PW2/A registered and thereafter prepared the site plan Ex.PW5/C. He arrested the accused persons vide arrest memos Ex.PW6/A to D and conducted personal search of accused Rajinder and Kishan as Ex.PW6/E and F. In his cross examination he has stated that informer left the spot at 9.50 pm after pointing out the room. No public person agreed to join the raid and no action was taken against them. There is no residence or commercial complex near the place of apprehension. The room was having one window 326 also and one could see through the window as to what was happening in that room. He has also stated that window was not shown in the site plan. He has stated that he took 35-40 minutes to complete the entire writing work at the spot and they left the spot at 3.00/3.15 am. There was light near the water tank where writing work was done.

19. A bare reading of testimony of all the material witnesses is sufficient to show that there are material contradictions in their testimony which makes the entire case of prosecution doubtful. First of all it is necessary to mention here that DD No.33A is only regarding receipt of secret information by Addl. SHO at 9.00 pm. Apart from that the prosecution has failed to prove any departure entry of the raiding party formed pursuant to receipt of secret information nor there is any arrival entry of any member of the raiding party including Addl. SHO so as to gather as to when they or some of the members returned to the PS from the spot. As per prosecution witnesses they left the PS at 9.30 pm and reached the spot by 9.45 pm from which it can be inferred that it is 15 minutes walking distance as it has come in the testimony of PW3 HC Om Parkash that he and Addl. SHO reached the spot on foot. It is surprising that a raiding party consisting of Addl. SHO, SI Ishwar Singh, HC Suresh Kumar, HC Om Parkash, HC Dungar Singh, Ct. Yograj, 327 Ct. Bijender, Ct. Ravinder, Ct. Raj Kumar, Ct. Bal Kishan and Ct. Prem Chand would go on foot to the spot alongwith secret informer without even making any departure entry. Another aspect is that as per IO he completed the entire proceedings within 35-40 minutes. If it was so, then entire proceedings should have been completed before 11.00 pm, hence there was no question of sending the rukka at 12.05 am in FIR No.191/04, at 12.30 am in case FIR No.192/04 and at 12.40 am in case FIR No.193/04. It is also necessary to mention that FIR has been registered and DD entry regarding registration of FIR has been recorded within 10 minutes of sending the rukka. In case FIR No.191/04 the DD entry No.2A regarding the registration of FIR was recorded at 12.15 am, in case FIR No.192/04 DD No.3A was recorded at 12.40 am and in case FIR No.193/04 DD No.4A was recorded at 12.50 am. In all the cases there being only one Duty Officer i.e. PW2 HC Hemraj, keeping in view that the FIR is running into more than two pages and three FIRs being registered within a span of 35 minutes i.e. from 12.15 am to 12.50 am, it is highly improbable that within 35 minutes the Duty Officer could have recorded three FIRs in his own hand as well as write DD entries. It is also not out of place of mention here that on the rukka at many places there is overwriting on the date and time. It is also surprising that when proceedings are 328 being conducted by three different IOs, how the two IOs conducting the proceedings under arms Act could take more than two hours to send the rukka if in the main case the proceedings were completed within 35-40 minutes. Again it is to be seen as to what the members of raiding party were doing till next day morning if FIR in all the cases were recorded by 12.50 am.

20. The site plan prepared in all the three cases by the three different IOs show different kind of picture. For instance, the site plan in case FIR No.191/04 shows point 'B' to be the place from where accused Tek Singh was apprehended and point 'A' is the vacant room. However, in case FIR No.192/04 which is also against this very accused Tek Singh, the room has not been shown and place of apprehension has also been shown different. It is not clear that when all the four persons were running, how only place of apprehension of one accused has been shown and not that of others. Though it has come in the statement of PW8 SI Ishwar Singh that there is no residence or commercial complex near the spot, the site plan itself shows that there were shops as well as TT Rest House and Sainik Aramgrah. Apart from that it is highly improbable that Addl. SHO accompanied by one Sub-Inspector, three Head Constables, 6-7 Constables asked public persons to join the raid and did not take any action against them who refused to join, 329 though there was no paucity of time with them because accused persons were to arrive at 10.30 or 11.00 pm whereas the police party was there much before time i.e. 9.30/9.45 pm. Another aspect to be considered is that HC Om Parkash claims himself to be in civil clothes and to be the person who over heard the conversation whereas the case of prosecution is that it was HC Donngarsi Dass who was in plain clothes and over heard the conversation. In normal circumstance, if the Addl. SHO had the secret information about collecting of five persons to plan to commit dacoity at True Blue Bar & Restaurant, he should have made some security arrangement at the said restaurant and to nab the offenders there and also send a word of caution to the management of that restaurant but nothing such has been done by the Addl. SHO or the IO. Rather it appears that most of police station staff preferred to station themselves near a vacant room to wait for certain persons who would make plan to commit dacoity, without having any control on the movement of those persons as to whether they would turn up at that room or change that place or implement their plan by going to that restaurant.

21. Taking into consideration the material contradictions in the testimony of all the prosecution witnesses especially that of HC Om Parkash who has stated that the informer came to the 330 spot at 10.30 pm on foot with Addl. SHO and remained there for 45 minutes whereas testimony of other witnesses is to the effect that informer accompanied them to the spot and after pointing out the vacant room left immediately. In the site plan no window has been shown to show the position where Addl SHO and HC Doongarsi Dass over heard the conversation and if there was wall only, then it was not possible to hear the entire conversation taking place in that room. As per HC Om Parkash, rukka was sent at 5.00 am and the constable returned with FIR at 6.00 am and he left the spot at 7.00/7.30 am meaning thereby that they remained at the spot for almost 9 to 10 hours. It appears that to meet the legal requirement of the offence under Section 399/402 IPC, a story was concocted that fifth person managed to escape otherwise how it is possible that with such large number of raiding party headed by Addl. SHO surrounding the room and the members of the raiding party duly armed with weapons and dandas and there being only one door in that room, any of the accused could even come out of that room with the room was surrounded from all sides by the police force. Thus, I find that testimony of material witnesses is not inspiring confidence.

22. In view the above discussion, I am of the opinion that prosecution has miserably failed to prove its case under 331 Sec.399/402 IPC against all the four accused persons and case under Sec.25 Arms Act against accused Tek Singh and Neeraj. Hence, all the four accused namely Rajender, Kishan, Neeraj and Tek Singh are acquitted of the charge. Case property in all the three cases shall be confiscated to the State after the expiry of period of appeal, if any. Files be consigned to record room.


Announced in the open Court

26.02.2009                           ( PRATIBHA RANI )
                                     ASJ-01 (Central)/Delhi




                               332
         IN THE COURT OF SMT. PRATIBHA RANI,
          ADDL. SESSIONS JUDGE-01(CENTRAL),
             TIS HAZARI COURTS, DELHI.


SC No.37/07 & 9/08


State                Vs     (1) Shehzad Nadeem,
                                S/o Mohd. Zaffer,
                                R/o M-15/16, DDA Flats,
                                Turkman Gate, Delhi.


                            (2) Shehzad Naeem,
                                S/o Mohd. Zaffer,
                                R/o M-15/16, DDA Flats,
                                Turkman Gate, Delhi.

                            (3) Anees @ Dupattewala,
                                S/o Sh. Hanif,
                                R/o 991,
                                Bazar Chitli Qabar,
                                Chandni Mahal, Delhi.

                            FIR No.376/06
                            U/s 307/323/34 IPC
                            PS : Chandani Mahal

                            Date of Institution : 8.2.07
                            Arguments heard on : 28.2.09
                            Order pronounced on : 28.2.09

                           ***

JUDGMENT

Accused Shehzad Nadeem, Shehzad Naeem and Anees @ Dupattewala have been sent to face trial for the offence punishable under Sec.307/323/34 IPC. The case FIR no.376/06 333 PS Chandani Mahal was registered on the basis of statement made by Shehzad @ Bhura, one of the injured. As per complaint Ex.PW4/B, on 8.12.2006 the complainant Shehzad alongwith Ameer @ Aadu and Shakeel was returning via Phatak Tehlian. At about 9.30 pm when they reached near park, accused Shehzad Nadeem, Shehzad Naeem and Anees started abusing Ameer saying that what he was doing there. When Ameer asked them not to abuse, all the three accused persons said in anger 'AAJ ISKA KHATMA KARTE HAIN' and that Ameer was having old enmity with the three accused persons. Accused Shehzad Nadeem and Shehzad Naeem started attacking Ameer with knives whereas accused Anees attacked Ameer with Ustra. When he alongwith Shakeel tried to intervene, accused Shehzad Nadeem and accused Shehzad Naeem hit him with a knife. When the public persons gathered on hearing the noise, all the three accused persons escaped from the spot. He alongwith Ameer went to LNJP hospital in a rickshaw whereas Shakeel left the spot. During investigation of the case, accused Shehzad Nadeem and Shehzad Naeem were arrested and interrogated. As accused Anees was absconding at that time, chargesheet was filed against accused Shehzad Nadeem and Shehzad Naeem.

2. After complying with the requirement of Sec.207 334 CrPC, the cases were committed to the Court of Sessions

3. After hearing on the point of charge, accused Shehzad Nadeem and Shehzad Naeem were charged on 6.8.2007 for the offence punishable under Sec.307/323/34 IPC to which they pleaded not guilty and claimed trial.

4. During trial of accused Shehzad Nadeem and Shehzad Naeem, accused Anees was also arrested on 24.12.2007 and supplementary chargesheet was filed against him. Accused Anees was charged on 24.1.2008 for the offence punishable under Sec.307/323/34 IPC to which he also pleaded not guilty and claimed trial.

4. Prosecution has examined eleven witnesses in all in support of its case. Accused Shehzad Nadeem and Shehzad Naeem were also examined under Sec.313 CrPC to explain about the evidence appearing against them in which they have denied the case of prosecution and stated that they are innocent and falsely implicated in this case. Accused Nadeem has stated that on 4.12.2006 injured Ameer had a quarrel with him and Ameer had inflicted injuries on his face and a case to this effect was registered at PS Chandni Mahal under Sec.324/323 IPC. On 8.12.2006 police implicated him in this false case at the instance of Ameer. Accused Naeem has stated that on 8.12.2006 police took his brother to the PS and he was called there to make some 335 inquiries and later on he was falsely implicated in this case. As nothing incriminating has come on record against accused Anees @ Duppatewala, his statement under Sec.313 CrPC was dispensed with. Accused Shehzad Nadeem and Shehzad Naeem have not led any evidence in their defence.

6. Out of the twelve witnesses examined by the prosecution, PW-3 HC Satender Kumar is the Duty who has recorded the FIR No.376/06 PS Chandani Mahal and proved the copy of same as Ex.PW3/A. PW-HC Anil Kumar has recorded the DD No.16-A on the basis of telephonic information received from HC Rajesh regarding arrest of accused Anees @ Duppatewala, who was declared P.O. in this case, by the officials of PS Jama Masjid. He has proved the copy of DD as Ex.PW6/A. PW-7 HC Banwari Lal was working as MHC(M) at the relevant time. He has stated that on 2.1.2008 one sealed pullanda sealed with the seal of AKS containing weapon of offence was sent to LNJP hospital through HC Shiv Ram vide RC No.82/21 for seeking opinion of the doctor but on that day opinion could not be obtained, hence pullanda was deposited back. He has further stated that on 11.1.2008 the said pullanda was again sent to LNJP hospital vide RC no.83/21 for seeking opinion of the doctor through HC Rajbir Singh and after obtaining the opinion, the said pullanda duly sealed with seal of 336 LNJP alongwith sample seal was deposited in the Malkhana. He has stated that so long the pullanda remained in his custody, the same was not tampered with. PW-8 Ct. Mohd. Ibrahim has recorded the DD No.29-A Ex.PW8/A on receipt of information from PCR which was marked to ASI Kiran Pal for further action. PW-11 HC Rajbir Singh took the sealed pullanda containing weapon of offence to LNJP hospital vide RC No.83/21 and after obtaining opinion, deposited the pullanda sealed with the seal of LNJP hospital alongwith sample seal in the manlkhana. He has stated that so long the pullanda remained in my custody, the same was not tampered with.

7. PW-1 HC Krishan Kumar had accompanied the IO ASI Kiran Pal Singh to LNJP hospital where ASI Kiran Pal recorded the statement of Shehzad and sent the rukka through him for registration of the case. PW-10 ASI Kiran Pal Singh has stated that on 8.12.2006 he was posted at PP Turkman Gate of PS Chandni Mahal and at about 10.00 pm on receipt of copy of DD No.29 Ex.PW8/A, he alongwith HC Kishan Kumar reached near Phatak Turkman Gate where they came to know that injured had already been removed to JPN Hospital, so they reached LNJP hospital where Ameer and Shehzad were found admitted. He collected their MLCs and on the MLC of Ameer, the doctor opined him 'unfit' for statement. As injured Shehzad was 337 declared fit for statement, he recorded his statement Ex.PW4/B and made endorsement Ex.PW10/A on the statement Ex.PW4/B and handed over the rukka to HC Kishan Kumar who got registered the case at PS and after registration of the case, the further investigation of the case was entrusted to SI Ajay Karan Sharma, PP Incharge.

8. PW-5 HC Jagbir Singh was with IO SI Ajay Karan Sharma and other staff and also is a witness to the arrest of accused Shehzad Nadeem and Shehzad Naeem. He has stated that on 10.12.2006 he joined the investigation of this case with SI Ajay Karan, Ct. Sandeep and Ct. Amrish and left the PP at about 5.30 pm and went in search of the accused persons. They reached house of accused Shehzad Nadeem and Shehzad Naeem at M-15/16, DDA Flats, Turkman Gate, DDA Flats but they were not found present. At about 7.00 pm, accused Shehzad Nadeem and Shehzad Naeem were seen at L-Block and on seeing the police party though they tried to run away, but overpowered and arrested vide arrest memo Ex.PW5/A and B. Their personal search was also conducted vide memos Ex.PW5/C and D. Accused Shehzad Nadeem and Shehzad Naeem were interrogated and their disclosure statement Ex.PW5/E and F were recorded and a per the disclosure statement, accused Shehzad Nadeem got recovered one Ustra on 338 11.12.2006 from Mahila Park, DDA Flats which was seized vide memo Ex.PW5/G after keeping the same in a pullanda and sealed with the seal of AKS. He has identified the ustra Ex.P1 to be the same which was got recovered by accused Shehzad Nadeem.

9. PW-12 SI Ajay Karan Sharma has stated that on 10.12.2006 he was posted as Incharge, PP Turkman Gate of PS Chandni Mahal and further investigation of this case was marked to him. At about 5.30 pm he alongwith HC Jagbir, Ct. Sandeep and Ct. Amrish proceeded in search of accused persons involved in this case and reached house No.M-15/16, DDA Flats, Turkman Gate i.e. house of accused Nadeem and Naeem. Both these accused were not found at the house and their mother was present at the house who informed that she was also looking for her sons i.e. accused Nadeem and Naeem. At about 7.00 pm when they were present at L-Block, DDA Flats, Turkman Gate, both the accused namely Shehzad Nadeem and Shehzad Naeem were seeing coming and on seeing the police party, they turned back and started running. They were chased by the police party and apprehended. Both the accused persons were arrested vide arrest memo Ex.PW5/A and B and their personal search memos Ex.PW5/C and D and body inspection memos Ex.PW12/A and B were prepared. He has further stated that he also informed 339 mother of the accused persons about their arrest vide information Ex.PW12/C and D. Thereafter both the accused were interrogated and their disclosure statements Ex.PW5/E and F were recorded. Accused were got medically examined vide request Ex.PW12/E and F and thereafter both of them were put in the lock-up. PW-12 SI Ajay Karan Sharma has further stated that on the next day, accused Nadeem pointed out the place i.e. Mahila Park, DDA Flats, Turkman Gate and got recovered one ustra from there. The ustra was kept in cloth parcels and sealed with the seal of AKS and seized vide memo Ex.PW5/G. He recorded the statement of witnesses and after completion of investigation, filed the chargesheet. He has further stated that accused Anees who was P.O. in this case was arrested by officials of PS Jama Masjid and thereafter he was formally arrested in this case and that as he was transferred, supplementary chargesheet against accused Anees was filed by another police officer.

10. PW-2 Sh. Ameer @ Addu, one of the injured has stated that on 8.12.2006 at about 9.30 pm he alongwith his friend Shehzad @ Bhura and Shakeel was passing through Phatak Tehlian, Turkman Gate. At that time accused Nadeem and Naeem alongwith one Anees were seen coming from front side. Accused Naeem started abusing him and they both started 340 grappling with him. Thereafter accused Naeem caused injuries on his face with a knife and accused Nadeem also caused injuries on his face and neck with a knife. He has further stated that Shehzad @ Bhura also received injuries with the hands of accused Nadeem. Shakeel also received injuries but he did not know who caused injuries to him. PW-1 Ameer has further stated that accused Anees did not cause any injury to him or any other person and that the quarrel took place because Nadeem owed Rs.5000/- to him which he was not returning. He has further stated that he was removed to LNJP hospital for treatment and at that time he was unconscious. Police reached the hospital and recorded his statement. As this witness exonerated accused Anees, he was cross examined by ld. Addl. PP for State. During cross examination by ld. Addl. PP, he has denied the suggestion that he was intentionally suppressing the true facts and deposing falsely that accused Anees had not caused any injury to him. He has also denied that accused Anees took out a razor and started assaulting him several time on his face or that he was deposing falsely as he has been won over by accused Anees.

11. PW-4 Sh. Shehzad, the complainant has stated that he did not remember the date or month but it was year 2006. At about 9.30 pm, he was present with Amir and Shakeel at Phatak 341 Tehlian, Turkman Gate. Accused Nadeem and Naeem who live in the same locality i.e. Phatak Tehlian, called Ameer at their house and he alongwith Ameer went there and were present outside their house. He has further stated that accused Anees @ Dupattewala was also with accused Nadeem and Naeem. Ameer had to take Rs.7000/- from accused Nadeem and Naeem and a quarrel took place on payment of that amount when Ameer demanded the money from them. Accused Naeem attacked Ameer with a Ustra on one cheek and Nadeem attacked with a chhuri on other cheek of Ameer. When he tried to intervene, accused Naeem also attacked him with a Ustra and caused injuries on his hand. Thereafter he took Ameer to LNJP Hospital in a rickshaw and got him admitted there. Shakeel left the spot and accused Nadeem, Naeem and Anees also left the spot. He was also treated at LNJP hospital and his MLC was also prepared, photocopy of which is Ex.PW4/A. Police also met him in the hospital and recorded his statement Ex.PW4/B. This witness was recalled for further examination after arrest of accused Anees who was P.O. at that time. During his further examination on 6.2.2009, he has stated that he did not remember the exact date, month or the year, however about 3-4 years ago he was present at his house and he came to know that Ameer had received knife injuries and had been admitted in Irwin Hospital. 342 He went there and saw that Ameer was under treatment. When he came down, police met him and took him to the Police Post Turkman Gate of PS Chandni Mahal as he was B.C. of the area and obtained his signatures on some papers which were already written. He identified his signature at point-A on statement Ex.PW4/B. He has further stated that he did not know who caused injuries to Ameer and that he sustained injury on his hand as he fell down outside his house when he was going to see Ameer in Irwin Hospital. He has further stated that he knew accused Shehzad Nadeem and Shehzad Naeem as they reside in the same area but did not know the third accused as he does not reside in the same locality. As this witness did not support the case of prosecution, he was cross examined at length by ld. Addl. PP for State but without any success. During cross examination by ld. Addl. PP, he has stated that IO told him in the police post that if he would not sign Ex.PW4/B, he would be in trouble and therefore he signed Ex.PW4/B at point-A. He has denied the suggestion that IO had not given any such threat to him and that he was not taken to Police Post Turkman Gate of PS Chandni Mahal nor his signatures were obtained on any paper by the IO. He has also denied that police made inquiries from him and he voluntarily got recorded his statement Ex.PW4/B in Irwin hospital. He has further denied that he had 343 deposed in the Court on 15.11.2007 voluntarily and volunteered that he made statement under the influence of Ameer. He has admitted that he did not make complaint to the Court on that date that Ameer had pressurized him to give statement in the Court. He has further denied the suggestion that he was not present at his house but at the spot when this occurrence had taken place and that he suffered injury in this occurrence and deposing falsely to save the accused persons as he had been won over by them after recording his statement on 15.11.2007. He has specifically denied that accused Shehzad Naeem attacked Ameer with a knife and accused Anis caused injuries to Ameer with Ustra in his presence and that when he and Shakeel intervened, accused Shehzad Nadeem struck knife on the right leg of Shakeel and accused Shehzad Naeem attacked him with a knife and when he tried to save himself, he sustained injury on his left hand.

12. PW-6 Sh. Shakeel Ahmed has stated that on 8.12.2006 he alongwith Ameer and Shehzad was coming from Turkman Gate side for going towards his house and at about 9.00 or 9.30 pm when they reached near park at Phatak Tehlian, accused Naeem, Nadeem, Anees met them and started abusing Ameer who was demanding money from accused Naeem and Nadeem. They grappled with each other and accused Naeem and Nadeem 344 caused injuries to Ameer with razor. Accused Anees did not cause any injury to Ameer. He has further stated that when he tried to intervene, accused Nadeem caused injury on his right leg with razor. As public persons also gathered, all the accused persons ran away from there. Later on he came to know that Ameer and Shehzad had reported the matter to the police and that as he did not sustain any grievous injury, he was not medically examined. As this witness did not support the case of prosecution, he was cross examined by ld. Addl. PP for State. During cross examination by ld. Addl. PP, he has denied that accused Nadeem and Naeem caused injury with knife to Ameer and accused Anees with razor and that accused Naeem also caused injury to Shehzad with knife. He has also denied that he was deposing falsely to save accused Anees as he has been won over by him and that he has forgotten the fact that accused Nadeem and Naeem caused injury to Ameer with knife and accused Anees with razor.

13. I have heard the accused persons and carefully gone through the record. In the instant case, PW-4 Sh. Shehzad Khan, the complainant has not supported the case of prosecution and denied having witnessed the occurrence or removing injured Ameer to hospital in a rickshaw. Despite extensive cross examination by ld. Addl. PP for State, he failed to extract any 345 support from his mouth to the case of prosecution. When PW-4 Sh. Shehzad Khan was examined on 6.2.2009 after the arrest of accused Anees in this case, he has specifically stated that on coming to know that Ameer was admitted in the hospital with knife injuries, he went to Irwin Hospital to see him and when he was coming down, police took him to PP Turkman Gate as he was B.C. of the area and his signatures were obtained on some paper which is Ex.PW4/B. He has specifically stated that he received injuries of his own due to fall.

14. PW-2 Sh. Ameer, the injured in his examination-in- chief did not depose about any injury being caused by accused Anees and named accused Shehzad Nadeem and Shehzad Naeem to be the person who caused injuries to him and that when Shehzad intervened, he was also attacked by these two accused persons. In the complaint Ex.PW4/B, it is mentioned that Anees attacked Ameer with Ustra and this fact contained in complaint Ex.PW4/B has neither been proved from the statement of complainant Sh. Shehzad Khan or from the statement of injured Ameer.

15. It is admitted by PW-2 Sh. Ameer that he is also facing trial in a criminal case in which accused Nadeem was injured. Although in cross examination, he has stated that he was unconscious when he was removed to LNJP hospital but his 346 MLC shows that in the column 'Brought by', the doctor has written 'Self' and patient i.e. Ameer was found to be conscious and oriented". The time of arrival of Ameer in the hospital is mentioned as 8.12.2006 at 10.00 pm whereas that of complainant Sh. Shehzad Khan @ Bhura has been mentioned as 8.12.2006 at 11.50 pm meaning thereby there was a difference of about 1 hour and 50 minutes in arrival of Ameer and Shehzad Khan to the hospital. The investigating Officer in his cross examination has admitted that Shehzad @ Bhura was B.C. of the area. In the circumstances, it is proved that Ameer was not taken to hospital by Shehzad Khan nor both received injuries in the same incident. So far as PW-9 Sh. Shakeel Ahmed is concerned, although he claimed himself to be the eye witness and that he also suffered injuries on his right leg with the razor, his testimony is also not worthy of any credit for the reason that he claims to be coming alongwith PW-2 Ameer and PW-4 Shehzad Khan when the quarrel took place with accused Nadeem and Naeem and injuries were caused to Ameer. He does not state that Shehzad also received any injury at the hands of the accused persons and if Ameer was injured in this incident, then in normal circumstances, he would have accompanied Ameer to hospital and reported the matter to the police. Neither he is complainant nor any MLC was got prepared by him in respect of the injuries 347 allegedly received by him at the hands of accused Nadeem, hence even the presence of PW-9 Sh. Shakeel, Ahmed at the spot is highly doubtful.

16. Considering that PW-4 Sh. Shehzad Khan and PW-9 Sh. Shakeel Ahmed have not supported the case of prosecution and statement of PW-2 Sh. Ameer regarding how the occurrence has taken place and who caused injuries to him is also not only contradictory to the complaint Ex.PW4/B but also to his statement under Sec.161 CrPC Ex.PW2/A wherein he stated that Anees took out a ustra and assaulted several times on his face. Even in the MLC, he name of the assailant is not mentioned by Ameer and taking into consideration that there was old enmity between Ameer and Accused Nadeem and Naeem, possibility of false implication cannot be ruled out to settle the score with them as Ameer was also facing trial in a case lodged by accused Nadeem.

17. In view of above discussion, as the prosecution has not been able to prove its case against accused Shehzad Nadeem and Shehzad Naeem beyond reasonable doubt, they are acquitted of the charge. As nothing incriminating had come on record against accused Anees, his statement under Sec.313 CrPC was dispensed with and already stands acquitted on 26.2.2009.

18. Case property i.e. ustra be confiscated to the State after 348 expiry of period of appeal, if any. File be consigned to Record Room.


Announced in the open Court

28.2.2009                           ( PRATIBHA RANI )
                                    Addl. Sessions Judge/Delhi




                              349
         IN THE COURT OF SMT. PRATIBHA RANI,
         ADDL. SESSIONS JUDGE-01(CENTRAL),
              TIS HAZARI COURTS, DELHI

SC No.301/07

State                Vs       (1) Darshan,
                                  S/o Sh. Daya Ram,
                                  R/o 10531/2,
                                  Bagichi Ultauddin,
                                  Nabi Karim, Delhi.

                              (2) Deepak @ Chapargattu,
                                  S/o Sh. Vijay Kumar,
                                  R/o BB-51, Bagri Basti,
                                  Nabi Karim, Delhi.

                              FIR No. 297/07
                              U/S : 307/34 IPC
                              PS : Nabi Karim

                              Date of Institution : 24.9.07
                              Arguments heard on : 9.2.09
                              Order pronounced on : 3.3.09

                              ***
JUDGMENT

Accused Darshan and Deepak have been sent to face trial for the offence punishable under Section 307/34 IPC on the basis of the complaint made by Sh. Mohd. Shafiuddin. As per the complaint Ex.PW1/A, on 29.7.2007 at about 10.00 pm Sh. Mohd. Shafiuddin proceeded from his house towards workshop situated at A-617 to bring rubber band of the zip and when he was coming back from the workshop and reached in the gali, two boys surrounded him and started abusing him. When he 350 objected them, one boy stated that 'TU GALI KA DADA BANTA HAI, JO TU HAR KAAM MEIN TAANG ADATE HO, AAJ TERI AKAD NIKAL DETE HAIN'. Then one boy caught hold him and another boy took out some sharp object from his pocket and hit the same on his stomach. He raised alarm and on hearing the noise, his brother Shairul came and took him to hospital. Matter was reported to the police and during investigation, accused Darshan and Deepak were arrested and after completion of investigation, charge sheet was filed against both the accused for the offence punishable under Sec.307/34 IPC.

2. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

3. During trial, both the accused were charged on 7.11.2007 for the offence punishable under Sec.307/34 IPC and to which they pleaded not guilty and claimed trial.

4. Prosecution has examined nine witnesses in all in support of its case. Accused Darshan and Deepak have also been examined under Section 313 CrPC in which they have denied the case of the prosecution and stated that they are innocent and have been falsely implicated in this case. Accused Darshan has stated that he was lifted by the police on 29.7.2007 at about 7.00 or 8.00 pm and he was kept in the PS during night 351 and on the next day he was implicated in this case. Accused Deepak has stated that some police officials took his father to the police station and made inquiries about him from his father and later on, he surrendered in the Court and police falsely implicated him in this case.

5. I have heard Sh S.C. Sharma, Addl PP for the State and Sh. Sumit Gupta, Amicus Curaie for the accused persons and also gone through the record carefully.

6. Out of the nine witnesses examined by the prosecution, PW-1 Sh. Shafiuddin is the injured/complainant whereas PW-2 Shairul is the eye witness. PW-1 Sh. Shafiuddin has stated that on the night of 29.7.2007 at about 10.00 pm when he came out of his house and was going to bring rubber band of zip from A-617, five persons met him in the gali and told him that 'Tum Gali Ke Dada Bante Ho'. Thereafter out of the five persons three ran away and two remained present there and accused Darshan caught hold of his and accused Deepak gave him knife blow on his stomach. He has further stated that his brother Shairul and Gayauddin also reached there and took hime to Sanjivan Hospital from where he was taken to Lady Hardinge hospital. Police also reached the hospital and recorded his statement Ex.PW1/A. PW-1 Shafiuddin has further stated that the accused persons ran away from the spot after causing injury 352 to him and that he was seeing the accused persons for the first time in the Court after the date of occurrence. He has identified his clothes pant, shirt and baniyan Ex.P1 to P3 to be the same which he was wearing at the time of occurrence. As this witness did not fully support the case of prosecution, he was cross examined by Ld. Addl. PP for State. During cross examination by ld. Addl. PP, he has admitted the prosecution case only to the extent that one of the two boys said to him that 'TU GALI KA DADA BANTA HAI AUR HAR KAAM MEIN TAANG DETE HO, AAJ TERI AKAD NIKAL DETE HAI'. He has specifically denied that the date and time of occurrence is 28.7.2007 at 10.00 pm or that only two persons wrongfully restrained him in the gali and not the five persons. He has also specifically denied the prosecution case that he alongwith Shairul and Gayauddin identified both the accused persons outside Court Room No.42 on 10.9.2007 and made statement before the IO to this effect or that he had forgotten the date of occurrence which was 28.7.2007 and not 29.7.2007 as stated by him.

7. PW-2 Sh. Shairul, brother of the complainant has stated that he did not remember the exact date, however, it was 27th or 28th August, 2007 at about 10.00 pm he was present outside his house. He saw that accused Darshan had stabbed his 353 brother with a knife and accused Deepak had also grappled with his brother at that time. He has further stated that many public persons gathered there and he with the help of Gayauddin removed the injured to Sanjivan Hospital and from there his brother was removed to Lady Hardinge Hospital and got admitted there. The police seized the clothes of his brother in the PS vide memo Ex.PW2/A. He has further stated that he was seeing both the accused persons for the first time in the Court after the day of occurrence and that once he had gone to Tihar Jail and had seen the accused persons during TIP before the Magistrate. He has identified the clothes Ex.P1 to P3 to be the same which his brother was wearing at the time of occurrence. As this witness also did not support the case of prosecution, he was cross examined by ld. Addl. PP for State. During cross examination by ld. Addl. PP, he has admitted that date of occurrence was 28.7.2007 however, he has denied that he reached the spot on coming to know that two boys were giving beating to his brother and after reaching the spot, saw both the accused persons beating his brother. He has admitted that his brother was stabbed by accused Deepak and not by Darshan as earlier stated by him. He has also specifically denied the prosecution case that he alongwith Shafiuddin and Gayauddin identified both the accused persons outside Court Room No.42 354 on 10.9.2007 and made statement before the IO to this effect.

8. PW-4 HC Sumer Singh and PW-5 Ct. Jaswinder remained associated with SI Kishan Chand (PW-9) during the investigation of case FIR No.271/07 under Sec.356/323/379 IPC PS Nabi Karim in which case, accused Darshan was arrested firstly and made disclosure statement Ex.PW4/A on the basis of which, he was arrested in this case also and accused Darshan made another disclosure statement Ex.PW4/B and also pointed out the place of occurrence vide memo Ex.PW4/C and he was arrested in this case vide memo Ex.PW4/D.

9. PW-9 SI Kishan Chand has stated that investigation of case FIR No.271/07 PS Nabi Karim was entrusted to him and during investigation, he arrested accused Darshan in that case in which he made disclosure statement Ex.PW4/A about his involvement alongwith co-accused Deepak in this case i.e. case FIR 297/07 PS Nabi Karim. He handed over the copy of disclosure statement to the IO of this case.

10. PW-8 HC Gokal Singh, the Duty Officer has recorded the FIR No.271/07 PS Nabi Karim and proved the copy of the same as Ex.PW8/A.

11. PW-7 HC Mehar Singh was working as Duty Officer on the night of 28/29.7.2007 and recorded the FIR No.297/07 PS Nabi Karim. He has proved the copy of FIR as Ex.PW7/A and 355 the endorsement Ex.PW7/B made by him on the rukka.

12. PW-3 Ct. Mitlesh Kumar was with ASI Ashwani Kumar (PW-6) to whom DD no.52-A Ex.PW3/A was assigned and accompanied him to the spot and to the hospital and had also taken the rukka to the Police Station for getting the case registered and is also a witness to the seizure of the clothes of the injured. PW-6 ASI Ashwani Kumar, the Investigating Officer has stated that on 29.7.2007 on receipt of copy of DD No.52-A Ex.PW3/A, he alongwith Ct. Mithlesh reached House No.A-617, Prem Nagar, Delhi where they came to know that injured had been removed to Sanjivan Hospital so they reached Sanjvan Hospital where it was informed that injured had been taken to Lady Hardinge Hospital then they reached Lady Hardinge Hospital and obtained the MLC of the injured and he recorded the statement Ex.PW1/A of injured Shafiuddin. He has further stated that he made endorsement Ex.PW6/A on the statement Ex.PW1/A and handed over the rukka to Ct. Mithlesh who got registered the case at PS and thereafter came back to the hospital and handed over the copy of FIR and rukka to him. The brother of the injured produced the clothes of the injured i.e. pant and shirt which were kept in a pullanda and sealed with the seal of AKY and thereafter taken into possession vide seizure memo Ex.PW2/A. He also recorded the statement of brother of 356 the injured correctly and then went to the spot and prepared the site plan Ex.PW6/B at the instance of brother of the injured. He has further stated that on 30.7.2007 accused Darshan was arrested by SI Kishan Chand in case FIR No.271/07 of PS Nabi Karim in which he had disclosed about his involvement alongwith his associate Deepak in this crime. He collected the copy of disclosure statement Ex.PW4/A from SI Kishan Chand arrested the accused Darshan in this case vide arrest memo Ex.PW4/D. Personal search memo Ex.PW6/C of the accused was also prepared and during interrogation, accused Darshan also made disclosure statement Ex.PW4/B and also pointed out the place of occurrence vide memo Ex.PW4/C. On 30.7.2007 accused Darshan was produced before the Court and application Ex.PW6/D for his TIP was moved and TIP was conducted on 16.8.2007. He collected the copy of TIP proceedings vide his application Ex.PW6/E in which accused Darshan had refused to join the proceedings. He has further stated that on 6.8.2008 accused Deepak was formally arrested with permission of the Court after he appeared in the Court on the strength of production warrant. He has proved the arrest memo and personal search memo of accused Deepak as Ex.PW6/F and Ex.PW6/G. Accused Deepak made disclosure statement Ex.PW6/H. Thereafter he moved application Ex.PW6/J for 357 conducting TIP of accused Deepak but the TIP could not be held by the Court on the ground that accused was produced in the Court in unmuffled face. He has further stated that he recorded the statement of witnesses correctly and nothing was added or deleted thereto of his own. He has identified the clothes Ex.P1 to P3 to be the same which were seized by him in this case.

13. On behalf of State, it has been contended that the accused persons have been correctly identified by the complainant and the eye witness to the persons who caused injuries to Sh. Shafiuddin and their identification before the Court is sufficient to prove that they were responsible for stabbing Shafiuddin in his abdomen, hence they be convicted.

14. On behalf of accused persons, it has been submitted that they are innocent and falsely implicated in this case because of their previous involvement in other cases of PS Nabi Karim. It has been further submitted that none of the accused persons was named in the complaint nor their TIP was got done and the evidence on record is not sufficient to prove the guilt of the accused persons, hence they be acquitted of the charge.

15. I have considered the rival contentions and carefully gone through the record. In the instant case, PW-1 Sh. Shaifuddin, the injured has specifically stated that accused Darshan caught hold of him and accused Deepak gave knife 358 blow on his stomach and that his brother Sairul and Gayauddin reached the spot and took him to hospital and that both the accused persons ran away from the spot after causing injuries to him. He has specifically stated that after the date of occurrence, he is seeing the accused persons in the Court and identified them correctly.

16. PW-2 Sh. Sairul, brother of the injured has also corroborated the statement of his brother i.e. PW-1 Sh. Shafiuddin regarding the occurrence, however, he was confused about the name of the accused persons as to who actually caused the injuries to Shafiuddin. In examination-in-chief, though he stated that accused Deepak grappled with his brother and accused Darshan stabbed his brother but when cross examined by ld. Addl. PP for State, he recollected that it was accused Deepak who stabbed his brother. He clarified by saying that he did not know the accused persons and saw accused Deepak also grappling with his brother and may be that accused Deepak caused injuries with knife. However, presence of both the accused persons namely Darshan and Deepak at the spot and grappling and causing injuries to his brother Shafiuddin also stands proved from the statement of PW-2 Sh. Sairul.

17. The motive for this quarrel has also been given by PW-1 Sh. Shafiuddin by saying that the persons who met 359 him in the gali said 'TUM GALI KE DADA BANTE HO'. None of these two PWs i.e. Pw-1 Sh. Shafiuddin and PW-2 Sh. Sairul had any kind of enmity with the accused persons and so far as their identity is concerned, it has been stated by PW-1 Sh. Shafiuddin and PW-2 Sh. Sairul that accused persons were residents of the same locality, however, there was no interaction with them and in that circumstance, it was not possible for PW-1 Sh. Shafiuddin and PW-2 Sh. Sairul to give the name of the accused persons in the complaint and statement. It is also relevant to mention that accused Darshan has been arrested in another case FIR No.271/07 under Sec.356/323/379 IPC PS Nabi Karim and on the basis of disclosure statement made by accused Darshan in that case about his involvement alongwith co-accused Deepak in this case, that accused Deepak was also arrested in this case. Accused Darshan has refused to take part in TIP and so far as accused Deepak was concerned, he was produced in the Court on the basis of production warrants being sent. The Jail Authorities did not produce him in muffled face, may be for the reason that there was no such direction in the production warrants. The Ld. MM observed that as accused has been produced from J/C in un-muffled face and accused also stated that his description had already been given to the witnesses, hence no purpose would be served by 360 conducting the TIP of accused Deepak and in that circumstance, the application for conducting TIP was declined. So far as identity of the two accused persons is concerned, they have been correctly identified by PW-1 Sh. Shafiuddin and PW-2 Sh. Sairul to be the persons who in furtherance of their common intention, grappled with PW-1 Sh. Shafiuddin and caused stab injuries to him. As the accused persons had caused injuries to PW-1 Sh. Shafiuddin in furtherance of their common intention, confusion in the statement of PW-2 Sh. Sairul regarding who caused the injuries, would not make much difference. In this case, as per report on the summons, Dr. Sahid and Dr. Aditya who prepared the MLC and given the opinion on the MLC, have left the services of the hospital, hence the MLC as well as nature of injuries remained unproved. However, taking into consideration that PW-1 Sh. Shafiuddin and PW-2 Sh. Sairul, both have deposed that the two accused persons namely Darshan and Deepak, in furtherance of their common intention, caused stab injuries to PW-1 Sh. Shafiuddin, in the absence of statement of Doctors who prepared the MLC and given the opinion on the MLC, they can be held guilty for causing simply injuries by sharp object.

18. In view of the above discussion, both the accused namely Darshan and Deepak are held guilty for the offence 361 punishable under Sec.324/34 IPC and convicted accordingly.


Announced in the open Court

3.3.2009                            ( PRATIBHA RANI )
                                    ASJ0-01 (Central)/Delhi




                              362
         IN THE COURT OF SMT. PRATIBHA RANI,
         ADDL. SESSIONS JUDGE-01(CENTRAL),
              TIS HAZARI COURTS, DELHI

SC No.301/07

State                Vs        (1) Darshan,
                                   S/o Sh. Daya Ram,
                                   R/o 10531/2,
                                   Bagichi Ultauddin,
                                   Nabi Karim, Delhi.

                               (2) Deepak @ Chapargattu,
                                   S/o Sh. Vijay Kumar,
                                   R/o BB-51, Bagri Basti,
                                   Nabi Karim, Delhi.

                               FIR No. 297/07
                               U/S : 324/34 IPC
                               PS : Nabi Karim

                               Arguments heard on : 4.3.09
                               Order pronounced on : 4.3.09

                              ***
ORDER ON SENTENCE

I have heard the convicts Darshan and Deepak on the point of sentence.

2. It has been submitted by both the convicts that they are 25 years of age and remained in custody for about ten months in this case. Convict Darshan also submits that one of his brother in totally bed ridden and there is none to look after him. They have prayed for a lenient view.

3. Taking into consideration the entire facts and circumstances of the case, both the convicts namely Darshan and 363 Deepak are sentenced to the period already undergone by them during investigation/trial of this case for the offence punishable under Sec.324/34 IPC. They be released forthwith, if not required in any other case. Case property shall be confiscated to the State after the expiry of period of appeal, if any. File be consigned to Record Room.


Announced in the open Court

4.3.2009                             ( PRATIBHA RANI )
                                     ASJ-01(Central)/Delhi




                               364
         IN THE COURT OF SMT. PRATIBHA RANI,
          ADDL. SESSIONS JUDGE-01(CENTRAL),
             TIS HAZARI COURTS, DELHI.


SC No.142/07


State                Vs       (1) Ashok @ Pandit
                                  S/o Govind Prasad
                                  R/o 606-B, Baba Farid
                                  Puri, Delhi.


                              (2) Lekh Raj @ Bunty
                                  S/o Laxmi Narayan
                                  R/o 642, Baba Farid
                                  Puri, Delhi.

                              (3) Mukesh
                                  S/o Sh. Balbir
                                  R/o 648, Baba Farid
                                  Puri, Delhi.

                              FIR No.516/06
                              U/s 394/397411/34 IPC
                              PS : Patel Nagar

                              Date of Institution : 11.10.06
                              Arguments heard on : 19.3.09
                              Order pronounced on : 19.3.09

                              ***

JUDGMENT

Accused Ashok @ Pandit, Lekh Raj @ Bunty and Mukesh have been sent to face trial for the offences punishable under Sections 394/397/411/34 IPC. The case FIR No. 516/06 has been registered on the basis of statement made by Sh. Rajeev 365 kumar Singh, the complainant. As per the complaint Ex.PW3/A, the complainant used to work as salesman in a shop at West Patel Nagar. On 4.9.2006 he had gone to Sharma Sweets, West Patel Nagar and while he was returning from there at about 1.05 PM and entered Rock Garden, he saw three boys standing there. One of them took out a knife, second boy caught hold of him and the third boy took out Motorola mobile phone No.9871964266 from him on which C-168 was written and it was having IEMI No.35891600488364639. He was also given beatings by those three boys and when he tried to save himself, one boy attacked on his left hand with a knife as a result of which he suffered injury near his left thumb. He was also attacked on his abdomen with the knife but saved because of buckle of his belt. He raised alarm and public persons gathered there. The three boys tried to run away but he managed to apprehend the boy who had taken away his mobile. His name was revealed as Mukesh. That boy was also given beatings by the public persons and in the mean time the police arrived there and he handed over accused Mukesh alongwith the mobile phone to the police.

2. On the basis of endorsement made by HC Jai Bhagwan on the above statement, FIR was registered and after interrogation of accused Mukesh, accused Ashok and Lekhraj 366 were also apprehended from their respective house. After completion of investigation, charge sheet was filed.

3. After complying with the requirement of Sec.207 CrPC, the cases were committed to the Court of Sessions

4. After hearing on the point of charge, all the three accused were charged on 12.12.2006 for the offence punishable under Sec.394 r/w 34 IPC and accused Ashok @ Pandit was also charged for the offence punishable under Sec. 397 IPC to which they pleaded not guilty and claimed trial.

5. Prosecution has examined nine witnesses in all in support of its case. Accused persons have also been examined under Sec.313 CrPC to explain about the evidence appearing against them in which they have denied the case of prosecution and stated that they are innocent and falsely implicated in this case. Accused persons have not led any evidence in their defence.

6. PW1 Ct. Sushil Kumar has stated that on 4.9.2006 HC Jai Bhagwan telephonically asked him to reach Rock Garden. When he reached there, Sh. Rajeev Kumar Singh, the complainant was handed over to him for getting him medically examined. After getting the medical examination conducted, he again reached Rock Garden and handed over Rajeev Kumar Singh and his MLC to the IO.

367

7. PW2 Sh. Deepak Chadha is a public witness who has stated that he is a property dealer by profession having his shop at G-39, West Patel Nagar. He has stated that police never met him nor recorded his statement. As this witness did not support the case of prosecution, he was cross examined at length by ld. Addl. PP. During his cross examination nothing material has come out which could help the case of prosecution.

8. PW3 Sh. Rajeev Kumar Singh is the complainant. He has stated that on 4.8.2006 he was passing through Rock Garden at about 1.00 pm. All the three accused persons were following him and accused Mukesh asked him what was the time on which he told MUkesh that it was 1.00 pm after seeing the time from his mobile. He has stated that accused Mukesh tried to snatch his mobile and at that time, accused Lekh Raj @ Bunty was having a knife which he handed over to accused Ashok who gave knife blow first on his stomach and then on his back and at that time his hands were caught hold by accused Mukesh from behind. After the occurrence, the assaillants started running but he apprehended accused Mukesh with the help of some other persons who reached there on hearing his noise. Deepak Chadha also reached there and he also helped him in apprehending the accused persons. PW3 has further stated that he informed the police from his mobile. Police reached the spot and recorded his 368 statement Ex.PW3/A and also seized the mobile vide seizure memo Ex.PW3/B. He also produced the photocopy Ex.PA of cash memo of his mobile to the police which was seized vide seizure memo Ex.PW3/C. He has stated that accused Mukesh was arrested vide arrest memo Ex.PW3/D and his personal search was conducted vide memo Ex.PW3/E. The disclosure statement of accused Mukesh was also recorded which is Ex.PW3/F. On his pointing out, police prepared the site plan of the spot. He has further stated that during night at about 9/9.30 p.m. accused Mukesh led the police party and he was also with the police to the house of accused Ashok who was found present at his house. Accused Ashok was arrested on his pointing out vide arrest memo Ex. PW3/G and his personal search was conducted vide memo Ex.PW3/H. Accused Ashok also produced one knife from Tand which was used to inflict injury to him which was sealed at the police station with the seal of AK and was taken into possession vide memo Ex. PW3/J. The sketch of the knife is Ex.PW3/K which was prepared by the police in his presence. PW3 Sh. Rajeev Kumar Singh has further deposed that accused Mukesh and Ashok took them to the house of accused Lekh Raj who was found present there. He was also arrested vide arrest memo Ex.PW3/L and his personal search was conducted vide memo Ex.PW3/M. His purse was 369 recovered from the house of accused Lekh Raj from a brief case which was containing visiting card, his photo and fifty rupees which were seized vide seizure memo Ex.PW3/N. This witness has identified his mobile as Ex.P1, kitchen knife as Ex.P2, purse containing Rs.50/-, visiting card collectively exhibited as Ex. P3.

9. As PW3 has given the date of occurrence as 4.8.2006, a leading question was put to him by ld. Addl. PP about the date of occurrence as 4.9.2006 and not 4.8.2006 as stated by him earlier which he admitted as correct.

10. PW4 HC Pratap Singh is duty officer and he has proved the copy of FIR as Ex.PW4/A.

11. PW5 Sh. Naresh Dureja, mobile shop owner has stated that bill No.1594 dated 11.8.2006 in respect of Motorola Mobile phone C-168 having IEMI No.358916004883646 was sold by him to a customer whose name later on he came to know as Rajeev Kumar Singh. He has proved the copy of the bill as Ex.PA.

12. PW6 Ct. Ravinder Singh has stated that on 4.9.2006 on receipt of DD No.25-A, copy of which is Ex.PW6/A, he alngwith HC Jai Bhagwan reached Rock Garden where complainant alongwith public witness Deepak Chadha met them. The complainant produced accused Mukesh Kumar alongwith 370 Motorola mobile phone of black colour. Thereafter the complainant made statement Ex.PW3/A. Mobile phone was seized vide memo Ex.PW3/B and thereafter IO handed over to him the rukka which he took to the police station and got the FIR registered. He has stated that after the registration of the FIR, further investigation was hnded over to SI Ashok Kumar to whom the rukka and copy of FIR were handed over. Thereafter he took accused Mukesh to DDU Hospital for medical examination and thereafter returned to the PS.

13. PW7 Ct. Dharmender Singh has stated that on 4.9.2006 the duty officer had handed over to him copy of DD No.25-A (Ex.PW6/A) which he took near Cottage No.4, West Patel Nagar and handed over the same to HC Jai Bhagwan.

14. PW8 SI Ashok Kumar is the second investigating officer of this case. He has stated that on 4.9.2006 further investigation of this case was entrusted to him. He reached the spot i.e. Rock Garden, Patel Nagar, New Delhi where HC Jai Bhagwan alongwith his staff, complainant, public witness and accused Mukesh met him. He interrogated the accused Mukesh and recorded his disclosure statement Ex.PW3/F. He also arrested the accused Mukesh vide arrest memo Ex.PW3/D and his personal search was also conducted vide memo Ex.PW3/E. He also prepared the site plan Ex.PW8/A at the instance of 371 complainant. He has also stated that HC Jai Bhagwan handed over to him the case property in sealed condition and the documents prepared by him. PW8 has stated that he also seized photocopy Ex.PA of the receipt of the mobile vide memo Ex.PW3/C. Thereafter he alongwith the complainant, accused Mukesh and other staff made search for the other two offenders. Accused Ashok @ Pandit was found in his house and was identified by the complainant as well as co-accused Mukesh. He interrogated accused Ashok and recorded his disclosure statement Ex.PW8/B. He also arrested accused Ashok vide arrest memo Ex.PW3/G and his personal search was conducted vide memo Ex.PW3/H. Accused Ashok also produced one knife used for cutting vegetables stating that the same was used in the crime. He prepared its sketch Ex.PW3/K and kept the same in pullanda which was sealed with the seal of AK and seized vide memo Ex.PW3/J. Thereafter he went to the house of accused Lekhraj @ Bunty and he was found present in his house. He interrogated him and also recorded his disclosure statement Ex.PW8/C. He arrested accused Lekhraj @ Bunty vide arrest memo Ex.PW3/L and his personal search was conducted vide memo Ex.PW3/M. Accused Lekhraj also produced one purse containing photograph of the complainant and also Rs.50/-. He kept the same in a cloth parcel and sealed with the seal of AK 372 and seized vide memo Ex.PW3/N. Accused Ashok and Lekhraj also pointed out place of occurrence and memos to this effect were prepared which are Ex.PW8/D and E.

15. PW9 is Dr. Nishu Dhawan. She has stated that MLC No.22883 of Rajeev Kumar Singh has been prepared by Dr. Rani, who has left the services of the hospital. She has proved the MLC as Ex.PW9/A bearing the signature of Dr. Rani at point A. During cross examination she has stated that the injuries as shown in the MLC cannot be caused by knife, sketch of which was seen by her in the judicial file. She has stated that injuries were abrasions only and not incised wound and could not be caused by knife. She has also stated that only one injury is mentioned on the MLC which has been caused by blunt object.

16. On behalf of State Sh. S.C. Sharma, Addl. PP has submitted that the statement of the complainant is sufficient to prove the case of prosecution who has correctly identified not only the accused persons but also the mobile phone which was recovered from accused Mukesh at the spot on the disclosure statement of accused Mukesh, other two accused persons were also apprehended and purse was recovered from the house of accused Lekhraj and knife which was used in the crime was recovered from house of accused Ashok. It has also been contended that in the circumstances all the accused persons be 373 convicted.

17. On behalf of accused persons it has been contended that the complainant and accused persons are resident of the same area and in the circumstances there was hardly any possibility of the accused persons to assault a resident of the same locality and later on get arrested in this case. It has been contended that PW3 Sh. Rajeev Kumar Singh has made lot of improvements in his statement and initially there was no mention of theft of purse and only Motorola mobile phone was mentioned but later on in order to implicate other accused persons, purse has been shown to have been recovered from accused Lekh Raj and knife from accused Ashok and in order to avoid TIP, the complainant had been made a witness to the arrest of these accused persons. It has been contended that as public witness Sh. Deepak Chadha has not supported the case of prosecution, they be acquitted.

18. I have considered the rival contentions and also carefully gone through the record. In the instant case the public witness Sh. Deepak Chadha has not supported the prosecution case at all and denied his presence at the spot at the time of apprehension of accused Mukesh. It is relevant to mention here that in the complaint Ex.PW3/A there is no mention of theft of purse, then how it could have been shown to have been 374 recovered from accused lekh Raj. Secondly, in the complaint IEMI number is also given by the complainant without even mentioning whether he remembered the same orally or was noted down from the mobile. None of the police official associated with the investigation has clarified as to how this number could be noted down in the complaint. It is also to be noted that as per complaint Ex.PW3/A, the mobile was taken out from the pocket of the complainant and that accused whose name was revealed as Mukesh was apprehended with the help of public person Deepak Chaddha from whom the mobile has been recovered, suggesting that the mobile has been recovered by the police as the lines used in the complaint are 'Jisse Mera Mobile Phone Baramad Hua Hai'. However, when this witness appeared in the witness box, he has stated that the police was informed by him from his mobile meaning thereby that mobile was already taken by him from accused Mukesh. The DD entry No.25-A Ex.PW2/A is to the effect that at 1.18 pm through W/OPP intercom from ASI Ram Dutt, I/C PP Rock Garden, three boys attempted to snatch mobile from a boy and also attempted to stab. There is no DD entry from police control room that the complainant from his mobile phone No.9871964266 has informed about the incident. Obviously the complainant could have reported that matter to the police control room only and not 375 PS Patel Nagar nor it is his case that he directly telephoned PS Patel Nagar. Thus from even the DD entry, the statement of the complainant is not corroborated for the reason that as per this DD entry, it was only a case of attempt to snatch the mobile and attempt to cause stab injuries and there was no question of robbing the mobile and purse of the complainant, so the recovery of same from the accused persons also becomes doubtful. It is also relevant to mention that the recovery of knife Ex.P2 from accused Ashok @ Pandit and purse from accused Lekhraj has been made without joining any public witness from their respective houses which also makes the entire case of the prosecution doubtful. It is also relevant to mention that the MLC of the complainant falsify the entire case of prosecution. In the MLC the complainant has not stated about any robbery at knife point or injury being caused by sharp object. As per opinion of the doctor, the injury has been caused by blunt object. If it is so then the statement of the complainant that when he tried to save himself, he was attacked with a knife and he suffered injury on his left hand is falsified. Further abrasion cannot be due to the injuries caused by knife. Although it has come in the statement of police witnesses that when they reached Rock Garden, there were many public persons present and in the complaint Ex.PW3/A it is mentioned that accused Mukesh was given 376 beatings by the public persons gathered there. Although it has come in the statement of PW6 Ct. Ravinder Singh that he took accused Mukesh for medical examination to DDU Hospital, MLC of Mukesh has not been placed on file alongwith the charge sheet so as to enable the Court to see the injuries on his body which might have been caused by public present in the park. It is also relevant to mention here that complainant has produced the photo copy of bill of Motorola mobile phone which was seized by the police but name of the purchaser is not mentioned on the bill so as to link this mobile phone with the complainant. In the circumstances the statement of mobile shop owner i.e. PW5 Sh. Naresh Dureja that he sold the mobile phone to Sh. Rajeev Kumar Singh whose name he came to know later on has to be disbelieved as in the bill neither the name nor the address of the customer is mentioned.

19. The statement of the complainant is untrustworthy and the injuries claimed to have been suffered by use of knife by the accused is falsified from the MLC itself. During cross examination PW9 Dr. Nishu Dhawan has specifically stated that injuries cannot be caused from the knife, sketch of which has been seen by her in the judicial file as the injury was abrasion only and not incised wound and could not be caused by knife. It is also relevant to mention that the knife alleged to have been 377 used in the crime is a kitchen knife but shown to have been recovered from the tand. I fail to understand as to why a person will conceal the kitchen knife on the tand instead of putting the same in the kitchen when it was neither having any blood stains nor any serious injury was caused with this knife. Rather the injuries suffered by the complainant is from a blunt object.

20. In this case the statement of the complainant is not inspiring any confidence specially in view of the fact that the purse appears to have been planted later on to implicate accused Lekh Raj as it was nowhere the case of the complainant that his purse was also taken away. The public witness Sh. Deepak Chadha has not supported the case of prosecution at all and in the circumstances the accused persons cannot be convicted for the offences complained of.

21. In view of the above discussion, I am of the view that prosecution has miserably failed to prove its case against the accused persons beyond any reasonable doubt. Accused Ashok @ Pandit, Lekh Raj @ Bunty and Mukesh are acquitted in this case. Case property shall be confiscated to the State after the expiry of period of appeal, if any. File be consigned to record room.

Announced in the open Court. ( PRATIBHA RANI ) ASJ-01(Central)/Delhi 19.3.2009 378 IN THE COURT OF SMT. PRATIBHA RANI, ADDL. SESSIONS JUDGE-01 (CENTRAL), TIS HAZARI COURTS, DELHI SC No.63/07 State Vs 1. Wazir, S/o Sh. Kanhiya Ram, R/o Vill. Pallani, Distt. Karnal, Haryana.

2. Joginder, (PO) S/o Sh. Phula Ram, R/o Village Sandari, PS Burana, Distt. Karnal, Haryana.

3. Jai Singh, S/o Late Sh. Kundan, R/o Vill. Siwana, Distt. Kaithal, Haryana.

4. Savitri, W/o Sh. Banta, R/o Vill. Siwana, Distt. Kaithal, Haryana

5. Suresh @ Kala Nai, S/o Sh. Prem, R/o Vill. Siwana, Distt. Kaithal, Haryana.

6. Puran Pandit (Not arrested and declared PO) FIR No.46/04 Under Sec.328/366/368/376/34 IPC PS : Chandni Chowk 379 Date of Institution : 23.3.2004 Arguments heard on : 21.3.09 Order pronounced on : 21.3.09 *** JUDGMENT Accused persons Wazir, Joginder, Jai Sigh, Savitri, Suresh have been sent to face trial for the offence punishable under Sec.328/366/368/376/34 IPC. The case FIR No.46/04 was registered at PS Chandni Chowk on the statement of prosecutrix (name of the prosecutrix withheld to conceal her identity) which is to the effect that she was resident of District Nadia, West Bengal but was employed in a kothi at Faridabad. Her mother Smt. Laxmi Rai was also working in DLF, Gurgaon. On 7.6.2003 she had gone to West Bengal to attend the hearing of the accident case in which her husband died. After 25 days she returned from West Bengal and was going to Gurgaon to meet her mother. When she reached Old Delhi Railway Station, she met one lady who offered her job. That lady also offered her a cup of tea. After taking tea, she became unconscious and was taken away by that lady. After she regained consciousness, she came to know that she was in Village Siwan where she stayed for about two months and from there, she was sold for Rs.35000/- in Panipat. From Panipat, she wrote a letter to her mother on which phone number was also given. On the basis of 380 this statement made before Incharge, PP Sushant Lok, Gurgaon on 23.1.2004, observing that place of occurrence was Old Delhi Railway Station, the matter was sent to Delhi for further action.

2. On the basis of this statement, FIR was registered at PS Chandni Chowk under Sec.366/376 IPC. During investigation, the accused persons namely Wazir, Joginder, Jai Singh, Savitri and Suresh were arrested, however accused Puran Pandit could not be arrested during investigation and was declared proclaimed offender.

3. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

4. After hearing on the point of charge, accused Wazir, Joginder, Savitri, Jai Singh and Suresh were charged for the offence punishable under Sec.368/34 IPC and accused Joginder was also charged for the offence punishable under Sec.376 IPC to which they pleaded not guilty and claimed trial.

5. During trial, accused Joginder absconded and was declared proclaimed offender.

6. Prosecution has examined seven witnesses in all in support of its case. Accused Wazir, Jai Singh, Savitri and Suresh have also been examined under Section 313 CrPC to enable them to explain the evidence appearing against them in which they have denied the case of prosecution and stated that 381 they are innocent and they do not know why they have been falsely implicated in this case. Accused persons have not led any evidence in their defence.

7. I have heard Sh S.C. Sharma, Addl. PP for the State and ld. counsels for the accused persons and also gone through the record carefully.

8. PW-1 HC Rajender Singh has stated that on 25.1.2004 he alongwith SI Sudesh, SI Manoj Kumar, Ct. Vikram, Ct. Upender, complainant and accused Wazir went to Siwan, Distt. Kaithal, Haryana for investigation of this case after seeking the necessary permission from Senior Officers to go there. After reaching Siwan, local police was informed and asked to accompany them and thereafter they went to the house of accused Savitri which was pointed out by accused Wazir and pointing out memo Ex.PW1/A in this respect was also prepared. He has further stated that the complainant also informed that Savitri was the same lady who kept her in that house for about two months. Thereafter accused Savitri was interrogated and her disclosure statement Ex.PW1/B was recorded. Thereafter they all alongwith accused Savitri went to the house of accused Jai Singh who was found present there and he was also identified by the complainant as well as accused Wazir. Accused Jai Singh was interrogated and his disclosure statement Ex.PW1/C was 382 also recorded. Thereafter accused Savitri and Jai Singh led the police party to the house of accused Suresh @ Kala Nai who was found present at his house and he was also identified by the complainant and accused Wazir. Accused Suresh was also interrogated and his disclosure statement which is Ex.PW1/D was recorded. Thereafter accused Savitri, Jai Singh and Suresh were arrested vide memos Ex.PW1/E to G and their personal search memos Ex.PW1/E1, F1 and G1 were also prepared. Thereafter local police was disassociated with the investigation and they alongwith accused persons and the complainant went in search of accused Puran Pandit. Accused Puran Pandit was searched in two-three Villages as pointed out by accused Wazir, Jai Singh and Suresh but he could be traced out. Then they reached Panipat and accused Wazir took them to a Kacchi Colony where the complainant pointed out the house where accused Joginder kept her and from that house, she was recovered by her mother with the help of police and other persons. The pointing out memo in respect of that house is Ex.PW1/H. He has further stated that the owner of that house could not be ascertained and as it was a new colony, further information could not be verified i.e. regarding the owner and stay of prosecutrix at that house and that after completing the investigation there, they all returned to the police station and his 383 statement was recorded by the IO at the police station.

9. PW-2 Smt. Laxmi Rai has stated that prosecutrix is her daughter and that three years ago (her statement was recorded on 11.2.2008) her daughter had gone with someone and since then she is not in her contact and she has not met her or received any letter from her. Earlier her daughter used to work in Faridabad and she (PW-2) used to work with Indira Dass Gupta in Gurgaon. She has further stated that in January, 2004 her elder daughter Sulata Bishast received a letter from the prosecutrix on which one mobile number was also there and that she did not inform the police that her daughter was missing and she cannot identify any of the accused present in the Court. As this witness did not support the case of prosecution, she was cross examined by ld. Addl. PP for State but without any success. Even she denied the suggestion of ld. Addl. PP for State that she reached the house of Wazir and Joginder on the basis of letter written by prosecutrix and that prosecutrix was found present there. She even denied having accompanied the police to the house of accused Joginder. She has also not identified the accused Joginder and Wazir.

10. PW-3 Ct. Sumeshwar Rai was given up being unnecessary.

11. PW-4 Ms. Roma Debabrata, Founder President of 384 STOP, A-25, Chitranjan Park has stated that on 23.1.2004 Smt. Indira Dass Gupta, an architect in Gurgoan came alongwith her maid Smt. Laxmi Rai and explained that daughter of Laxmi Rai has been abducted by Joginder and Wazir and she was confined in Panipat. She alongwith them first went to PS Sushant Lok and explained the situation and asked for their help. They proceeded to Panipat by car on the same night and reached there next day early morning at about 3.00 or 4.00 am. After reaching there, they called prosecutrix on the telephone number which she had written to her mother and the prosecutrix picked up the phone and informed that Joginder was there and she was married to him forcibly. PW-4 Ms. Roma Debabrata has further stated that as the prosecutrix was not permitted to give the address, they persuaded Joginder and prosecutrix to come to Bus Stand, Panipat. After waiting for sufficient time, Joginder alongwith one another person came on tractor but prosecutrix was not with them. Then the police surrounded them and took them to their house from where prosecutrix was recovered and rescued. Thereafter prosecutrirx alongwith Joginder and Wazir was brought back to PS Sushant Lok but as some jurisdictional issue was involved on the point that prosecutrix was abducted from old Delhi Railway Station, they were directed to report the matter to PS at Delhi. She directed them to go to PS Old Delhi 385 Railway Station and she returned to her place.

12. PW-5 SI Manoj Kumar has stated that on 23.1.2004 he was posted at PS Chandni Chowk and was on night emergency duty. At about 11.00 pm, complainant/prosecutrix alongwith her mother and police staff of PP Sushant Lok, Gurgaon came to the police station. He received DD No.30 of PS Chandni Chowk, copy of which is Ex.PW5/A, alongwith copy of the statement of complainant and DD No.20 of PP Sushant Lok, Gurgaon, copy of which is Mark-PW2/A. Accused Wazir and Joginder (PO) were also with them. He has identified the accused Wazir and stated that he can also identify accused Joginder if shown to him. Thereafter he discussed the matter with senior officers and thereafter sent complainant for medical examination at Aruna Asaf Ali Hospital. He also got the FIR registered, carbon copy of which is Ex.PW5/B. Thereafter accused Wazir and Joginder were interrogated and thereafter investigation was transferred to W/SI Sudesh Nain and he was verbally directed to assist W/SI Sudesh Nain. PW-5 SI Manoj Kumar has further stated that next day morning i.e. 24.1.2004 W/SI Sudesh Nain came to the PS and he handed over all the documents to her. W/SI Sudesh Nain interrogated the accused Wazir and Joginder and thereafter arrested them and produced them before the Court from where they were taken on police remand. He has further stated that on 386 the night intervening 24/25.1.2004, after taking permission to go out station from the senior police officers, he alongwith W/SI Sudesh Nain, other staff and complainant and accused Wazir went to Village Siwan, Kaithal to arrest co-accused persons and in the morning, they reached PP Siwan, Kaithal and after taking local police, they reached house of accused Savitri who was found present there and identified by accused Wazir and complainant to be the lady with whom complainant was kept. He has further stated that complainant also told that she was brought from Railway Station by some lady after giving her some intoxicant in tea and she also named Jai Singh and Kala Nai to be the persons who brought her there. He has again said these two persons assisted accused Savitri in sale of Mankhushi and brought party to show her. Thereafter at the instance of complainant, accused Jai Singh and Kala Nai were detained and interrogated by W/SI Sudesh Nain and disclosure statement of Jai Singh, Kala Nai and Savitri were recorded and they were arrested in this case. He has further stated that from there, they went to Panipat where complainant was detained with Joginder with whom she was married and that they also searched for accused Puran Pandit but he remained untraceable and thereafter they returned to Delhi.

13. PW-6 W/SI Sudesh Nain has stated that on 24.1.2004 387 as she was directed by ACP, Kotwali to investigate this case, she reached PS Chandni Chowk where SI Manoj Kumar met her and handed over to her the documents alongwith complainant and accused Wazir and Joginder (PO). She made inquiries from the complainant and recorded her statement. She also interrogated the accused Wazir and Joginder and recorded their disclosure statements Ex.PW6/A and B. Accused Wazir and Joginder were arrested vide memos Ex.PW6/C and D and their personal search memos Ex.PW6/E and F were also prepared. Thereafter Accused Wazir and Joginder were produced before the Court and they were taken on police remand for two days. PW-6 W/SI Sudesh Nain has further stated that on the night intervening 24/25.1.2004, after taking permission to go out station from the senior police officers, she alongwith SI Manoj Kumar and other staff went to Village Siwan, Kaithal to arrest co-accused persons. After reaching Siwan, local police was informed and asked to accompany them and thereafter they all alongwith the complainant and accused Wazir went to the house of Savitri which was pointed out by accused Wazir and pointing out memo Ex.PW1/A in this regard was prepared. The complainant also informed that Savitri was the same lady who kept her in that house for about two months. Thereafter accused Savitri was interrogated and her disclosure statement Ex.PW1/B. Thereafter 388 they went to the house of accused Jai Singh who was found present in his house. Accused Jai Singh was identified by the complainant as well as accused Wazir. Accused Jai Singh was interrogated and his disclosure statement Ex.PW1/C was recorded. Thereafter accused Savitri and Jai Singh led them to the house of Suresh @ Kala Nai who was found present there. Accused Suresh was also interrogated and his disclosure statement Ex.PW1/D was recorded. She has further stated that thereafter accused Savitri, Jai Singh and Suresh were arrested vide memos Ex.PW1/E to G and their personal search was also conducted vide memos Ex.PW1/E1, F1 and G1. Thereafter the local police was disassociated with the investigation and they alongwith accused persons and the complainant went in search of accused Puran Pandit but he could be traced out. Then they reached Panipat and accused Wazir took them to a Kacchi Colony where the complainant pointed out a house stating that in the same house, she was kept by accused Joginder and later on recovered by her mother with the help of police and other persons. The pointing out memo in respect of that house was prepared which is Ex.PW1/H and after completing the investigation there, they all returned to the police station. PW-6 W/SI Sudesh Nain has stated that the complainant pointed out the place outside Old Delhi Railway Station from where she was 389 abducted regarding which pointing out memo Ex.PW6/G was prepared. She also prepared the site plan Ex.PW6/H at the instance of complainant. On 27.1.2004 accused Joginder was got medically examined at Aruna Asaf Ali hospital and after the examination, the doctor had handed over the sealed pullanda containing blood sample which was seized vide memo Ex.PW6/J. She has further stated that on 24.1.2004 he moved an application for recording the statement of complainant Mankhushi which was fixed for 27.1.2004. She has proved the carbon copy of the application as Ex.PW6/K and stated that on 27.1.2004 statement under Sec.164 CrPC of complainant was got recorded and she also obtained the copy of the statement under Sec.164 CrPC, copy of which is Ex.PW6/L vide her application, carbon copy of which is Ex.PW6/M. She recorded the statement of witnesses and after completion of investigation, filed the chargesheet. She has also stated that complainant could not be traced out despite her best efforts.

14. PW-7 Ms. Indira Dass Gupta has stated that about 4-5 years ago (her statement was recorded on 20.3.2009) she was residing in DLF, Wallington Estate, Phase-V, Gurgaon and at that time she had a maid namely Laxmi Rai whose daughter was missing. In the morning Laxmi Rai said that she got a letter from her daughter bearing address of Panipat and she wanted to 390 find out her daughter. She came to know about an organisation namely STOP run by Ms. Roma Debabrata and she took Laxmi Rai to her. Then they all went to PS Gurgaon and as it was late night, she returned home. Thereafter she came to know that the police team had gone to Panipat but she did not accompany them and subsequently she came to know through telephonic call from someone that they had returned. As this witness did not support the case of prosecution, she was cross examined by ld. Addl. PP for State. During cross examination by ld. Addl. PP for State, she has denied the suggestion that she alongwith Smt. Roma Debvaratta and other workers of STOP Organization went to Panipat, Haryana where aid from the local police was obtained and they all reached at the address given in the letter. She has also denied that accused Joginder and Wazir were found present there and complainant was in their custody who was identified by Smt. Laxmi Rai and the girl had also identified her mother in her presence and that complainant was got released from their custody and she was brought to PP Sushant Lok from where in the evening at about 4.30 pm they informed the Incharge PP SI Satinder Kumar and complainant got recorded her statement to the said SI in which she has stated that she was sold for Rs.35000/- and had also informed that she was got married with Joginder and as per her statement the offence committed was 391 found of the area of Old Delhi Railway Station. She has also denied that SI Satinder sent HC Shamsuddin and Ct. Roshan Lal to Delhi and on reaching at Old Delhi Railway Station the area was found of PS Chandni Chowk and hence HC Shamsuddin left them at PS Chandni Chowk and later on she also left the PS Chandni Chowk leaving complainant and her mother and both the accused persons.

15. In the instant case, PW-2 Smt. Laxmi Rai, mother of prosecutrix has not supported the case of prosecution at all and had not deposed anything incriminating against any of the accused. So far as statement of PW-4 Ms. Roma Debabrata is concerned, she has stated that Ms. Indira Dass Gupta, an Architect in Gurgaon came alongwith maid Laxmi Rai (PW-2) and explained that prosecutrix, daughter of Laxmi Rai had been abducted by Joginder and Wazir and she was confined by them in Panipat. This part of her statement is not only hear-say but even as per the FIR prosecutrix was not kidnapped by Joginder and Wazir. In her cross examination, Pw-4 Ms. Roma Debabrata has stated that they did not act upon oral complaint and some written complaint might have been given by Laxmi Rai but she could not recollect if written complaint was given at PS Sushant Lok. She has also stated during her cross examination that local address of Panipat was not given by 392 Laxmi Rai or Ms. Indira Dass Gupta. She could not recollect whether any written complaint was given at PS Sushant Lok or statement of Laxmi Rai was recorded by police officer at PS Sushant Lok. She has stated that Ms. Indira Dass Gupta had not gone to Panipat with them. She has stated that she also did not go to the house of accused Wazir and remained present at bus stand whereas mother of prosecutrix was sent with the police to that house. Thus the only evidence that has come on record in the form of statement of Ms. Roma Debabrata is that she had accompanied the police to Panipat but had not gone to the house of accused Wazir. PW-7 Ms. Indira Dass Gupta also did not support the case of prosecution that she had gone to Panipat with Laxmi Rai and Ms. Roma Debabrata. In the circumstances, when PW-2 Smt. Laxmi Rai, mother of the prosecutrix has not supported the case of prosecution at all, did not identify accused Wazir and Joginder and did not state about recovery of prosecutrix from the house of Joginder at Panipat, the evidence on record is not sufficient to prove the guilt of accused Wazir. So far as other three accused persons Jai Singh, Savitri and Suresh are concerned, the charge against them is that prosecutrix was confined at the house of Savitri. It is not the case of prosecution that accused Savitri was the lady who abducted the prosecutrix from Old Delhi Railway Station. Even in the FIR, it 393 is not mentioned. There is absolutely no evidence against accused Jai Singh, Savitri and Suresh that they, in furtherance of their common intention, wrongfully confined the prosecutrix at village Siwan knowing that she was being abducted by some unknown lady who served tea mixed with some stupefying object with intent to compel her to marry some person against her will. Even otherwise it seems to be hjighly improbable that after making unconscious, the prosecutrix who was aged about 26/27 years old, could be abducted from Old Delhi Railway Station by another lady as it would not have been possible for her to physically lift the prosecutrix and take her to Siwan without attracting attention of security staff posted at the Railway Station or on the way to village Siwan.

16. In view of above discussion, I am of the opinion that prosecution has not been able to prove its case against the accused persons beyond reasonable doubt. Hence, accused Wazir, Jai Singh, Savitri and Suresh are acquitted of the charge. Against accused Joginder and Puran Pandit, file be consigned to Record Room under Sec.299 CrPC.


Announced in the open Court

21.3.2009                            ( PRATIBHA RANI )
                                     ASJ-01(Central)/Delhi




                               394
         IN THE COURT OF SMT. PRATIBHA RANI,
         ADDL. SESSIONS JUDGE-01 (CENTRAL),
              TIS HAZARI COURTS, DELHI


SC No.257/07

State             Vs    1.    Dalip Sunar,
                              S/o Sh. Ajmal Sunar,
                              R/o House no.578,
                              CL-Jhandapur,
                              PO : Sahibabad,
                              District Ghaziabad, U.P.

                        2.    Jai Ram,
                              S/o Sh. Govind Bahadur,
                              R/o House no.414,
                              Jhandapur,
                              PO : Sahibabad,
                              District Ghaziabad, U.P.

                        3.    Vinod Kumar,
                              S/o Sh. Tek Kumar,
                              R/o House No.B-40,
                              Mohan Nagar, Sahibabad,
                              U.P.

                        4.    Kishore Singh,
                              S/o Sh. Nar Singh,
                              R/o C-34/B, Shyam Park
                              Extn., Sahibabad,
                              District Ghaziabad, U.P.

                        5.    Sher Singh,
                              S/o Sh. Dhanvir Singh,
                              R/o A-195, Lajpat Nagar,
                              Ghaziabad, U.P.

                        FIR No.263/07
                        Under Sec.399/402 IPC &
                        U/S.25/54/59 Arms Act
                        PS : NDLS


                        395
                               Date of Institution : 31.8.07
                              Arguments heard on : 20.3.09
                              Order pronounced on : 21.3.09

                              ***

JUDGMENT

All the five accused persons namely Dalip Sunar, Jai Ram, Vinod Kumar, Kishore Singh and Sher Singh have been sent to face trial for the offence punishable under Sec.399/402 IPC and under Sec.25/54/59 Arms Act. Briefly stating the case of the prosecution is that on 21.7.2007 at about 4.30 pm all the five accused assembled at Pucca Kuan near Peepal Tree, Ajmeri Gate side of New Delhi Railway Station within the jurisdiction of PS NDLS and at that time, they were armed with weapons and making preparation to commit dacoity. Raid was conducted and accused persons were arrested. During search, accused Dalip Kumar and Jai Ram were found in possession of one buttondar knife and accused Vinod Kumar and Kishore Singh were having cycle chains. Proceedings regarding recovery of weapons from the accused persons were conducted and after completion of investigation, they were sent to face trial for the offences complained of.

2. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

3. After hearing on the point of charge, all the five 396 accused namely Dalip Sunar, Jai Ram, Vinod Kumar, Kishore Singh and Sher Singh were charged for the offence punishable under Sec.399/402 IPC and accused Dalip Sunar and Jai Ram were also charged for the offence punishable under Sec.25 Arms Act to which they pleaded not guilty and claimed trial.

4. Prosecution has examined four witnesses in all in support of its case. All the five accused have also been examined under Section 313 CrPC to enable them to explain the evidence appearing against them in which they have stated that they are innocent and have been falsely implicated in this case. Accused persons have not led any evidence in their defence.

5. I have heard Sh S.C. Sharma, Addl. PP for the State and Sh. Waseem Ansari, counsel for accused persons and also gone through the record carefully.

6. PW-1 HC Maheshwar has stated that on 21.7.2007 in the morning at about 3.20 am ASI Ashok Kumar called him to join the raid to be conducted by ASI Ashok Kumar who had a secret information. HC Ram Kumar, Ct. Ombir, Ct. Ashok Kumar were also called and they were briefed about the secret information that 4-5 persons would come from Ajmeri Gate side near Pucca Kuan in the morning at about 4.30 am and would commit dacoity in the train Chattigarh Express. The raiding team reached near Pucca Kuan and Ct. Ashok Kumar, who was in 397 civil dress, and secret informer were sent to over hear the conversation of those persons and remaining members took position at Ajmeri Gate side. At about 4.30 am Ct. Ashok Kumar gave the pre-decided signal, on the pointing out of informer, by keeping his hand on his head and on this, all the members rushed towards the spot. On seeing the police, the persons present there started running but they were overpowered by the members of raiding party. HC Maheshwar has further stated that he overpowered accused Vinod and other accused persons namely Dalip, Jai Ram, Kishore and Sher Singh were overpowered by other members of raiding party. He conducted the search of accused Vinod who was found in possession of a cycle chain. Accused Dalip and Jai Ram were found in possession of knives and accused Kishore was also found in possession of a cycle chain. Thereafter ASI Ashok Kumar prepared the sketch of knives recovered which are Ex.PW1/A and B and kept the same in separate pullandas and sealed with the seal of AK and seized vide memos Ex.PW1/C and D. The cycle chain were also seized vide memo Ex.PW1/E and F after keeping the same in different pullandas and sealing with the seal of AK. ASI Ashok Kumar prepared the rukka and got registered the case through Ct. Ombir. Thereafter the accused persons were arrested vide arrest memos Ex.PW1/G1 to G5 and their 398 personal search memos Ex.PW1/H1 to H5 were also prepared. PW-1 HC Maheshwar has further stated that Ct. Ashok informed the ASI that accused Dalip was saying the other accused persons that dacoity was to be committed in the general compartment of Chattigarh Express. He has identified the two cycle chains and the two knives Ex.P1 to P4 to be the same which were recovered from accused Vinod, Kishore Singh, Dalip Sunar and Jai Ram respectively.

7. PW-2 HC Ram Kumar was given up being unnecessary.

8. PW-3 Ct. Ombir Singh has stated that on 21.7.2007 he was present at the PS and at about 3.40 am ASI Ashok Kumar called him and informed that about the secret information that some persons would come AG side, Pucca Kuan in the morning at about 4.00 am with intent to commit robber/dacoity in the train Chattisgarh Express at platform No.9. Inspector C.R. Meena, Addl. SHO constituted a raiding party consisting of himself, ASI Ashok Kumar, HC Ram Kumar, Ct. Ashok Kumar, HC Maheshwar and they alongwith the secret informer left the PS at about 3.50 am and reached Pucca Kuan at about 4.00 am. Ct. Ashok Kumar was in civil dress. ASI Ashok Kumar deputed Ct. Ashok Kumar and the informer to over hear the conversation of the persons collected there and the other members of the 399 raiding party were directed to take position at Ajmeri Gate side. Ct. Ashok Kumar was also directed to give signal by putting his hand two times on his head if the information is found correct. He has further stated that at about 4.30 am Ct. Ashok Kumar gave pre-decided signal and on receiving the signal, all the persons were overpowered while they were sitting and planning to commit dacoity. He has further stated that he could not tell whom he overpowered nor he could point out that accused out of the accused persons present in the Court on that day. He has further stated that on search, accused Jai Ram was found in possession of one knife and accused Vinod was found in possession of one cycle chain and nothing was recovered from the possession of other accused persons. He has further stated that he could not tell if any other accused persons were found in possession of anything or not. PW-3 Ct. Ombir has further stated that ASI Ashok Kumar prepared a tehrir and handed over the same to him and he got registered the case at the PS and came back at the spot and handed over the copy of FIR and original tehrir to ASI Ashok Kumar. He has further stated that the articles recovered were kept in pullanda and sealed with the seal of AK and that later on, all the documents prepared at the spot and the case property were handed over to HC Maheshwar who did the further proceedings and that Ct. Ashok Kumar did 400 not tell the facts of conversation between the accused persons to him. As this witness did not fully support the case of prosecution, he was cross examined by ld. Addl. PP for State. During cross examination, he has admitted it to be correct that IO had asked 8/10 public persons to join the raiding party but none had agreed and that HC Ram Kumar overpowered the accused Jai Ram and HC Maheswar overpowered accused Vinod Kumar, however stated that he did not remember if ASI Ashok Kumar overpowered the accused Dalip Kumar. He has admitted it to be correct that he overpowered accused Kishore Singh and Ct. Ashok Kumar overpowered accused Sher Singh and that Ct. Ashok Kumar told the members of the raiding party that accused Dalip Kumar was saying to the other accused persons about the committing of dacoity in the general compartment of Chattisgarh Express train which starts from platform no.9 and was also briefing about the act to be done by the accused persons during the robbery. He has also admitted that accused Dalip was found in possession of one buttondar knife which was recovered from his right side dub, accused Jai Ram was found in possession of one buttondar knife which was recovered from his right side dub and accused Vinod Kumar and Kishore were found in possession of one cycle chain each from right side pocket of their pants. He has also admitted that the the recovered weapons were sealed in 401 separate pullandas and seized and that during search, nothing was found in possession of accused Sher Singh. He has admitted his signature on the sketchs of knives Ex.PW1/A and B, on seizure memos Ex.PW1/C to F, on arrest memos Ex.PW1/G1 to G5 and personal search memos Ex.PW1/H1 to H5. He has stated that he could not recollect these facts earlier due to lapse of time. He has identified the two cycle chains and the two knives Ex.P1 to P4 to be the same which were recovered from accused Vinod, Kishore Singh, Dalip Sunar and Jai Ram respectively.

9. PW-4 ASI Ashok Kumar, the IO of the case has stated that on 21.7.2007 at about 3.30 am in the early morning while he was present in the police station, he received secret information that one person namely Dalip alongwith his associates would assemble at Pucca Kuan, Ajmeri Gate side with intent to commit dacoity in the train 'Chattisgarh Express' and if a raid is conducted, they can be overpowered. He produced the informer before the Addl. SHO in his office and on the direction of the SHO, he organised a raiding party consisting of himself, HC Maheshwar, HC Ram Kumar, Ct. Ombir and Ct. Ashok Kumar and all the members of the raiding party were also briefed about the secret information. He has further stated that Ct. Ashok Kumar was directed to remain in civil clothes and other 402 remaining members were in uniform and that necessary arms and ammunition were also got issued to the members of the raiding party. At about 3.50 am, the raiding party alongwith the informer left the police station after making departure entry vide DD no.5-A and reached Ajmeri Gate side at New Delhi Railway Station. He also asked 8-10 public persons to join the raiding party but nobody agreed to join and left from there. Thereafter he directed Ct. Ashok Kumar to overhear the conversation of the persons assembled there and also to give signal by keeping his hand on his head if the information is found correct and the remaining members of the raiding party took position in the left and right side. PW-4 ASI Ashok Kumar has further stated that at about 4.30 am, Ct. Ashok Kumar gave the pre-decided signal on which all the members of the raiding party rushed towards that place and the persons assembled there were overpowered and on inquiry, their names were revealed as Dalip, Jai Ram, Vinod, Kishore Singh and Sher Singh. He has further stated that accused Dalip was overpowered by him, accused Jai Ram was overpowered by HC Ram Kumar, accused Vinod was overpowered by HC Maheshwar, accused Kishore was overpowered by Ct. Ombir and accused Sher Singh was overpowered by Ct. Ashok. PW-4 ASI Ashok Kumar has further stated that Ct. Ashok told him and the other members of 403 the raiding party that accused Dalip was making plan to commit dacoity in the general compartment of the train 'Chattisgarh Express' which starts from platform No.9, New Delhi Railway Station and that accused Dalip was also saying that the other associates will also help him in the said dacoity and directed them to act as per his directions. Thereafter search of accused persons was conducted. During search, one buttondar knife each were recovered from the right side dub of accused Dalip and Jai Ram from their right side dub. On search, accused Kishore was found in possession of one cycle chain which he was having in his hand and Vinod was also found in possession of one cycle chain which he kept in right side pocket of his pant. Accused Sher Singh was not having anything incriminating.

10. PW-4 ASI Ashok Kumar has further stated that thereafter he prepared the sketches Ex.PW1/A and B of the knives recovered from accused Dalip and Jai Ram respectively and then the knives were kept in separate pullandas and sealed with the seal of AK and seized vide memos Ex.PW1/C and D. The cycle chains recovered from accused Vinod and Kishore were also kept in separate pullandas and seized vide memos Ex.PW1/E and F respectively. He prepared the rukka Ex.PW4/A and handed over the same to Ct. Ombir who got registered the case at the PS vide FIR, carbon copy of which is 404 Ex.PW4/B. After registration of the case, Ct. Ombir returned to the spot and handed over the copy of FIR and original rukka to him. Thereafter he prepared the site plan Ex.PW4/C and arrested all the five accused persons vide memos Ex.PW1/G1 to G5 and also prepared their personal search memos Ex.PW1/H1 to H5. He has identified the two cycle chains and the two knives Ex.P1 to P4 to be the same which were recovered from accused Vinod, Kishore Singh, Dalip Sunar and Jai Ram respectively.

11. On behalf of State, it has been contended that non- joining of public witness is no ground to disbelieve the testimony of police officials i.e. PW-1 HC Maheshwar, PW-3 Ct. Ombir and PW-4 ASI Ashok Kumar and their testimony is sufficient to prove that accused persons have been apprehended while they were planning to commit dacoity in the general compartment of train 'Chattisgarh Express', hence they be convicted.

12. On behalf of accused persons, it has been contended that accused persons have been falsely implicated in this case and they were not even known to each other, so there was no question of collecting together to make planning for committing dacoity. It has also been contended that there are material contradictions in the statement of prosecution witnesses which is sufficient to disbelieve them and accused persons be acquitted. 405

13. I have considered the rival contentions and carefully gone through the record. In the instant case, as per DD No.5-A, the secret information was received at about 3.30 am by ASI Ashok Kumar and thereafter he produced the secret informer before the Addl. SHO and then, as per directions, he organised a raiding party and after getting issued the arms and ammunitions from MHC(M), started from police station at about 3.50 am. Thus within 20 minutes right from the stage of receiving the secret information, the raiding party was constituted and after taking arms and ammunition, the raiding party departed for the spot No copy of the entry in Malkhana register regarding taking of arms and ammunitions is placed on record. As per ASI Ashok Kumar, the distance between the spot and the police station is about 250-300 yards and time of arrival at the spot has been given by ASI Ashok Kumar as 4.20 am meaning thereby that the police party has taken 30 minutes in covering the distance of 250-300 yards and that too when Ct. Maheshwar has stated that they had taken the shortest route through railway yard. Another material contradiction is that as per PW-1 HC Maheshwar, he was present towards Ajmeri Gate side when he received information on wireless and on receiving the information, he reached the police station at about 3.40 am and made arrival entry, copy of which is not placed on file. As per 406 PW-4 ASI Ashok Kumar, HC Maheshwar was already present in the police station, thus it is difficult to make out as to whether HC Maheshwar is to be believed or ASI Ashok Kumar. Further as per PW-3 Ct. Ombir, the raiding party was constituted by Inspector C.R. Meena, Addl. SHO but PW-1 HC Maheshwar has stated that SHO was not present in the police station at that time and he did not remember if Addl. SHO was present in the police station at that time or not. All the prosecution witnesses have admitted that in the site plan, the position of the members of the raiding party including that of informer and Ct. Ashok Kumar who heard the conversation has not been shown. The site plan does not even show any structure behind which the members of the raiding party and informer could hide themselves to take position especially when except Ct. Ashok Kumar and informer, all other members were in uniform. From the site plan, it can be gathered that there was no place safe enough for the accused persons to discuss their plan which also make the case of prosecution highly doubtful. Further as per prosecution, the rukka has been sent at about 6.25 am and FIR has been registered at about 6.55 am meaning thereby that PW-3 Ct. Ombir took almost half-an-hour to cover the distance of about 250-300 yards. If it is so, then it is not understandable that what the police party was doing till 11.00 am for the reason that HC 407 Maheshwar has stated that after completing the proceedings, they reached the police station at about 11.00 am. The time of arrest in the arrest memos has been shown as 9.30 am. If FIR has been registered at 6.55 am, there was hardly anything in which the members of the police party and IO could keep themselves busy till 11.00 am because recovery and seizure proceedings had already been done before sending the rukka. I am of the opinion that the testimony of prosecution witnesses does not inspire confidence and is not sufficient to convict the accused persons especially when despite the arrest being made from near the railway station, no independent public person was associated in the proceedings.

14. In view of above discussion, as the prosecution has not been able to prove its case against all the accused persons namely Dalip Sunar, Jai Ram, Vinod Kumar, Kishore Singh and Sher Singh, they are acquitted of the charge. Case property shall be confiscated to the State after expiry of period of appeal, if any. File be consigned to Record Room.

Announced in the open Court 21.3.2009 ( PRATIBHA RANI ) ASJ-01(Central)/Delhi 408 IN THE COURT OF SMT. PRATIBHA RANI, ADDL. SESSIONS JUDGE-01 (CENTRAL), TIS HAZARI COURTS, DELHI SC No.147/07 State Vs 1. Raju @ Shivna, S/o Sh. Mahatma Bin, R/o Vill. Kajra, PS Kajra, Distt. Lakhi Sarai, Bihar.

2. Kabir Sheikh, S/o Sh. Mukhtiar Sheikh, R/o H. No.1960, J.J. Colony, Bawana, Delhi.

3. Rakesh Kashyap, S/o Sh. Bhawani Kashyap, R/o Shaheed Nagar, Jai Pal Chowk, Ghaziabad, U.P. (PO)

4. Naveen, S/o Sh. Ram Babu Thakur, R/o Vill. Phulwaria, PS Benipatti, Distt. Madhubani, Bihar

5. Kamal @ Narul, S/o Sh. Ram Babu Thakur, R/o Village Pulwaria, PS Bani Patti, Distt. Madhubani, Bihar.

6. Kasim, S/o Sh. Nasir, R/o Kallu Ka Beda, Gamri, Bhajan Pura, Delhi.

409 FIR No.419/06 Under Sec.399/402/34 IPC & U/S.25 Arms Act PS : Chandni Chowk Date of Institution : 3.1.07 Arguments heard on : 23.3.09 Order pronounced on : 25.3.09 *** JUDGMENT All the six accused persons namely Raju @ Shivna, Kabir Sheikh, Rakesh Kashyap, Naveen, Kamal and Kasim have been sent to face trial for the offence punishable under Sec.399/402/34 IPC and under Sec.25 Arms Act. Briefly stating the case of the prosecution is that on 6.11.2006 at about 4.30 pm all the six accused assembled on road near Western Gate, Company Bagh within the jurisdiction of PS Chandni Chowk and at that time, they were armed with weapons and making preparation to commit dacoity. Raid was conducted and accused persons were arrested and from accused Kabir Sheikh, one countrymade pistol loaded with one live cartridge was recovered, from accused Raju, one countrymade pistol loaded with one live cartridge was recovered, from accused Kamal and Rakesh Kashyap, one buttondar knife each were recovered and from accused Kasim, one dagger was recovered. Proceedings regarding recovery of weapons from the accused persons were conducted and after completion of investigation, accused 410 persons were sent to face trial for the offences complained of.

2. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

3. After hearing on the point of charge, all the six accused persons namely Raju @ Shivna, Kabir Sheikh, Rakesh Kashyap, Naveen, Kamal and Kasim were charged for the offence punishable under Sec.399/402 IPC and accused Raju, Kabir Sheikh, Kasim, Kamal and Rakesh Kashyap were also charged for the offence punishable under Sec.25 Arms Act to which they pleaded not guilty and claimed trial.

4. Prosecution has examined nine witnesses in all in support of its case. All the five accused have also been examined under Section 313 CrPC to enable them to explain the evidence appearing against them in which they have stated that they are innocent. They have stated that they have been taken by the police from different places to Maurice Nagar where they were illegally detained and later on they have been falsely implicated in this case. Accused persons have not led any evidence in their defence.

5. I have heard Sh S.C. Sharma, Addl. PP for the State and ld. counsels for accused persons and also gone through the record carefully.

6. PW4 Ct. Mohd Ismail was given up by the ld. Addl. 411 PP being repetitive in nature.

7. PW5 HC Lavkesh Kumar was working as MHC(M) on the relevant date. He has proved the extract of relevant entries made in the malkhana register as Ex.PW5/A and of RC as Ex.PW5/B.

8. PW6 HC Ompal Singh was working as Duty Officer and he has proved the copy of FIR as Ex.PW6/A and the endorsement made on the rukka as Ex.PW6/B.

9. PW7 Sh. Yogesh is a witness to the hiring of his truck No. DL-11-E-2318 by accused Kabir and Raju and he is not a witness to the apprehension of the accused persons in this case.

10. Similarly, PW8 Sh. Rajesh Yadav was owner of delivery van No. DL-1L-H-1074 on which accused Naveen was employed as driver. He is also not a witness to the apprehension of the accused Naveen in this case.

11. As per statement of PW2 HC Bharat Singh, on 6.11.2006 he alongwith ASI Raj kumar, Ct. Birbal, Ct. Mohd Ismail, Ct. Rahul and Ct. Kalu Ram left the office at 4.00 PM for patrolling after making departure entry vide DD No.12. While patrolling they reached near Vankhandi Mandir on S.P. Marg and parked the vehicle there. While they were proceeding on foot towards Town Hall, at about 4.30 PM ASI Raj Kumar received a secret information about 5-6 boys present in the 412 Company Bagh who were armed with deadly weapons and planning to commit dacoity. On this information a raiding party was organized and he was deputed to over hear the conversation of those boys. 5-6 public persons were asked to join the raid but none agreed and left without giving their names and addresses. IO ASI Raj Kumar directed him to give signal by keeping his hand on his head if the information was confirmed. Thereafter 5-6 boys were seen coming from the park through the gate and he alongwith informer went to over hear their conversation. After hearing the conversation, he gave the pre-decided signal at about 4.50 PM. Those boys were over powered. Driver of the delivery van No. DL-1L-H-1074, whose name was revealed as Naveen Kumar, which was parked outside the gate was also over powered by ASI Raj Kumar. One person sitting by the side of the driver was also over powered and his name was revealed as Raju @ Shivna. Four persons sitting in the back side of the delivery van were over powered by other members of the raiding party. He has stated that accused Naveen was having a bag which was containing one 'aari' with 8/9 extra blades and two ustras which were sealed with the seal of RK and pullanda was given serial No.1 and taken into possession. Accused Raju was found in possession of one loaded country made pistol. After unloading the same, sketch Ex.PW2/A of the pistol and 413 cartridges was prepared and thereafter pistol and cartridge were sealed with the seal of RK and pullanda was given serial No.2 and taken into possession vide memo Ex.PW2/B. PW2 has also stated that Ct. Mohd Ismail apprehended accused Kabir Sheikh and on his search he was found in possession of one dessi katta from his left side pant pocket which was unloaded and found containing one live cartridge. The sketch of the katta and cartridge was prepared and kept in pullanda which was sealed with the seal of RK and the pullanda was given Sl. No.3. He has stated that Ct. Kalu Ram overpowered accused Kamal @ Nazrul (P.O.) who was found in possession of one buttondar knife from his right side pant pocket of which sketch was prepared and the knife was kept in a pullanda and sealed with the seal of RK and was taken into possession. The pullanda was given Sl.No.5. He has further stated that Ct. Rahul overpowered accused Rakesh Kashyap who was also found in possession of one knife. The sketch of knife was prepared and was kept in a pullanda and sealed with the seal of RK and was taken into possession vide seizure memo and the pullanda was given Sl. No.4. Accused Kasim @ Maqsood was over powered by Ct. Birbal and from his possession one daggar was recovered which was also kept in a pullanda after preparing its sketch and was sealed with the seal of RK and seized vide a memo and the pullanda was given Sl. 414 No.6. He has further stated that he informed the members of raiding party that Raju is the gang leader who with his associates was planning to commit robbery of the luggages loaded in the trucks which was parked near Pilli Kothi. He has stated that ASI Raj Kumar prepared a rukka and handed over the same to Ct. Rahul who got registered the case in the PS and further investigation was entrusted to SI Gajender who reached the spot and prepared the site plan at the instance of ASI Raj Kumar and also recorded the statement of ASI Raj Kumar. This witness has proved the arrest memo Ex.PW2/C and personal search memo Ex.PW2/D of accused Raju and stated that disclosure statement Ex.PW2/E of accused Raju was also recorded and after filling the FSL form, the seal was given to him. PW2 HC Bharat Singh has further deposed that on the next day, in pursuance of disclosure statement, accused Raju led the police to the house of Gaje Singh situated at Usman Pur and pointed out accused Nurul Hoda and got recovered 46 cartoons of auto parts, stolen from Sanjay Gandhi Transport Nagar which were sealed with the seal of GK and taken into possession vide memo Ex.PW2/F. Accused Raju also pointed out house of Shabir situated in Gali No.5, Khajuri and got recovered 13 bags of brass scrap which were also sealed with the seal of GK and seized vide memo Ex.PW2/G. Accused Raju also pointed out the place of 415 occurrence vide pointing out memo Ex.PW2/J in the area of PS Sarai Rohilla and PS Ali Pur and also got recovered one tempo No.DL-1L-E-2378 which was also taken into possession from Tempo Stand, Bhajan Pura vide memo Ex.PW2/H. The pointing out memo of accused Raju of the place near Jamuna Bazar is Ex.PW2/K and the pointing out memo of place of occurrence at G.T. Karnal Road, near Harjeet Petrol pump is Ex.PW2/L. He has proved the pistol and cartridges recovered from accused Raju as Ex.P2/1 and P2/2.

12. PW1 Ct. Kalu Ram and PW3 Ct. Rahul Kumar have deposed on identical lines.

13. PW9 ASI Raj Kumar, the Investigating Officer of the case, has also deposed about departure from the office vide DD No.12 alongwith other members of the team for patrolling. He has also deposed that while they were proceedings towards Town hall on foot, secret information was received and he briefed other members of the team and organized a raiding party. He also tried to join 5-6 public persons in the raid but none agreed and then he deputed HC Bharat Singh to over hear the conversation and given the signal if information was found correct. Remaining members of the team remained present on the eastern gate of the Company Bagh. At 4.50 PM on receipt of signal from HC Bharat Singh, those boys were over powered and 416 driver of the delivery van namely Naveen Kumar was over powered alongwith person sitting by his side whose name was revealed as Raju @ Shivna. Other four persons sitting in the back side of the van were also over powered by the other team members. He has stated that on search, accused Rakesh was found in possession of one knife of which sketch Ex.PW3/A was prepared. Accused Raju @ Shivna was found in possession of one countrymade pistol loaded with one cartidge Ex.P4/1 and 2 of which he prepared sketch Ex.PW2/A. Accused Kabir Sheikh was found in possession of one countrymade pistol loaded with one cartridge and their sketch is Ex.PW9/A. Accused Kamal was found in possession of one knife and the sketch Ex.PW1/A of the knife was prepared by him. Accused Kasim was found in possession of one dagger Ex.P5 and the sketch of the dagger is Ex.PW9/B. He has stated that the recovered weapons were kept in separate pullandas and sealed with the seal of RK and seized vide memos Ex.PW2/B, Ex.PW9/C, Ex.PW1/B, Ex.PW9/D, Ex.PW3/B. PW9 has also stated that he also seized vide seizure memo Ex.PW9/A one bag containing one aari, nine blades and two ustras collectively exhibited as Ex.P6 which were recovered from accused Naveen after keeping them in a pullanda and sealing with the seal of RK. He also seized the delivery van vide seizure memo Ex.PW9/F and also filled in the FSL forms 417 and seal after use was handed over to HC Bharat Singh. He has further deposed that he prepared the rukka Ex.PW9/G and handed over the same to Ct. Rahul for getting the case registered and after registration of the case, further investigation of this case was entrusted to SI Gajender who reached the spot and prepared site plan Ex.PW1/DA at his instance. This witness has proved the arrest memos of all the six accused persons namely Raju, Kabir, Rakesh, Naveen, Kamal and Kasim as Ex.PW3/C2, C3 C4, C5, Ex.PW9/H and Ex.PW2/C and their personal search memos as Ex.PW9/J, Ex.PW9/K, Ex.PW2/D, Ex.PW9/L, Ex.PW7/D2, Ex.PW3/D1. Accused persons were interrogated and their disclosure statements were recorded. This witness also identify the signature of Sh. Atul Katyal, Addl. DCP on the sanction order Ex.PW9/M at point-A being conversant with handwriting and signature of DCP.

14. On behalf of State, it has been contended that all the material police witnesses have deposed about the receipt of secret information and apprehension of the accused persons alongwith weapons from their possession while they assembled for planning to commit dacoity. It has also been contended that non joining of public witnesses is no ground to disbelieve the police officials whose statement is otherwise trustworthy.

15. Ld. Counsel for the accused persons has submitted that 418 the accused persons have been falsely implicated in this case. It has been further contended that despite alleged apprehension from a congested area, no independent public witness has been joined by the police and even in the statement of HC Bharat Singh there is nothing which could show that the accused persons were planning to commit dacoity. It has been contended that accused persons have been falsely implicated and the weapons alleged to have been recovered from them, have been planted on them. He has prayed for acquittal of the accused persons.

16. In the instant case, there are material contradictions in the testimony of PW-1 Ct. Kalu Ram, PW-2 HC Bharat Singh, PW-3 Ct. Rahul Kumar and PW-9 ASI Raj Kumar about the contents of secret information and their statement in the Court regarding that. If rukka Ex.PW6/B is to be considered, at about 4.30 pm, informer met the police party behind a Mandir and informed that in the Company Bagh on the other side of the Fountain in the bushes near the wall, 5-6 boys were sitting and planning to loot the goods of a truck and this information was conveyed by ASI Raj Kumar to Inspector, Operation Cell, North District who directed him to take necessary action in the matter. However, PW-1 Ct. Kalu Ram has stated that secret information was received by ASI Raj Kumar when they were proceedings 419 towards Town Hall and that after the raiding party was organised and HC Bharat Singh was deputed to overhear the conversation and also directed to give signal if the information was found correct, at about 4.30 pm they took the position as per instructions of the IO. About 5-6 boys were seen coming from the park through the gate and on receipt of signal from HC Bharat Singh, those boys were overpowered. He has also stated that accused Naveen i.e. driver of the delivery van parked outside the park was overpowered and that accused Raju @ Shivna was sitting by his side. Thus as per statement of Ct. Kalu Ram, 5-6 boys were not already sitting in the park and accused Naveen and Raju were present outside the park in the delivery van at the time of their apprehension. As per PW-2 HC Bharat Singh, secret information was received by ASI Raj Kumar that about 5-6 persons were present in the Company Bagh who were planning to commit dacoity, a raiding party was organised and he was deputed to hear the conversation and given signal if the information was found correct. He has also stated that 5-6 boys were seen coming from the park through the gate. He alongwith the informer went to hear the conversation of those boys and after hearing the conversation, he gave the signal at 4.50 pm and those boys were overpowered. Accused Naveen, driver of the delivery van No.DL-1L-H-1074 parked outside the park was 420 overpowered by ASI Raj Kumar. Accused Raju @ Shivna who was sitting in the delivery van by the side of accused Naveen, was overpowered by him. He has further stated that four persons were also sitting in the back side of the said delivery van who were overpowered by other members of the raiding party. Thus as per PW-2 HC Bharat Singh also, 5-6 boys were not already sitting the park rather if version of PW-2 is to be believed, all the six accused persons were in the delivery van parked outside the park i.e. Accused Naveen was on the driver seat, accused Raju was sitting by his side and remaining four accused were sitting in the back portion of the delivery van. In cross examination, he has stated that informer met them at the spot and when he was overhearing the conversation, the informer was with him and the distance from which he was hearing the conversation was 4-5 paces. It is highly improbable that when two persons were standing on their head, the accused persons would be discussing their plan to commit dacoity. As per PW-2 HC Bharat Singh, the rukka was sent at 7.30 pm and they left the spot at about 9.30 pm. PW-3 Ct. Rahul Kumar is silent as to whether the boys were already sitting in the park or they were seen coming. He has only deposed about HC Bharat Singh being sent to hear the conversation and give signal. He has also stated that on receiving the signal at 4.50 pm, ASI Raj Kumar overpowered 421 accused Naveen, the driver of the delivery can and Accused Raju @ Shivna who was sitting in the delivery van by the side of accused Naveen, was overpowered by him. He has further stated that four persons were also sitting in the back portion of the said delivery van who were also overpowered and that he overpowered accused Rakesh Kashyap. As per PW-6 HC Ompal, the Duty Officer, he received rukka at about 7.40 pm. As per PW-9 ASI Raj Kumar, on receiving the secret information about 5-6 boys sitting in Company Bagh and planning to commit dacoity, he briefed the other staff members, tried to join public witnesses, deputed HC Bharat Singh to hear the conversation and directed him to give signal if the information was found correct and remaining members of the raiding party remained present at the eastern gate of the Company Bagh. He has also stated that at 4.50 pm HC Bharat Singh gave the signal and those boys were overpowered. He overpowered accused Naveen, the driver of the delivery Van No.DL-1L-H-1074 which was parked outside the park. Accused Raju who was sitting by the side of accused Naveen was overpowered by HC Bharat Singh. He has further stated that four other persons were also sitting in the back side of the delivery van who were also overpowered by other members of the raiding party. These witnesses have also deposed about the 422 recovery of weapons from these accused persons. As per PW-9 ASI Raj Kumar, one knife was recovered from the possession of accused Rakesh, one countrymade pistol loaded with one cartridge was recovered from accused Raju @ Shivna, one knife was recovered from accused Kamal, one countrymade pistol loaded with one cartridge was recovered from accused Kabir Sheikh and one dagger was recovered from the possession of accused Kasim.

17. In the instant case, if site plan Ex.PW1/DA is perused, point-A shows the place where the secret information was received, point-B shows the place where decoy witness was standing and waited for police party, then by arrow sign, way of the police party has been shown, point-C which is inside the park, shows the place where the six criminals were sitting and planning, point-D which is outside the gate, shows the position where delivery can was parked and accused persons were apprehended and point-E shows the place where police party did the writing work. The site plan itself shows that the distance from which the decoy witness overheard the conversation was far away from the place where accused persons were sitting and planning and it was just not possible to hear any conversation. Further if all the six accused persons were present in the delivery van i.e. Accused Naveen and Raju @ Shivna on the front seats 423 and remaining four accused in the back portion of the delivery van, then how they could be present at point-C also as shown in the site plan and make plan to commit dacoity. Further information was received at 4.30 pm about the persons already sitting and making planning, then how PW-1 Ct. Kalu and PW-2 HC Bharat Singh could see the accused persons entering the park and being followed by HC Bharat Singh and informer to hear their conversation. It is also relevant to mention that what conversation was taking place amongst the accused persons has not been mentioned by HC Bharat Singh. It also cannot be ignored that the place of occurrence is a congested area and the police remained there till 9.30 pm and it is highly improbable that for five hours, no public person gathered there. It is also relevant to mention that neither DD No.12 vide which departure entry was made is placed on file nor the DD entry which might have been made after the secret information was conveyed to Inspector, Operation Cell is placed on record. It is surprising that witness ASI Raj Kumar was remembering the number of the delivery van in which accused persons were sitting but not the registration number of the vehicle in which they reached the spot.

18. In view the above discussion, I am of the opinion that prosecution has not been able to prove its case under 424 Sec.399/402 IPC against the accused persons and recovery of weapons from them. Hence, accused Raju @ Shivna, Kabir Sheikh, Naveen and Kasim are acquitted of the charge. Case property be confiscated to State after expiry of period of appeal, if any, only in respect of accused Raju, Kabir Sheikh and Kasim. Against accused Kamal (PO) and Rakesh Kashyap (PO), file be consigned to Record Room under Sec.299 CrPC. Announced in the open Court 25.3.2009 ( PRATIBHA RANI ) ASJ-01(Central)/Delhi 425 IN THE COURT OF SMT. PRATIBHA RANI, ADDL. SESSIONS JUDGE-01 (CENTRAL), TIS HAZARI COURTS, DELHI SC No.74/08 State Vs 1. Rahul, S/o Bishamber Dayal, R/o 1362, Bagichi Tansukh Rai, Ajmeri Gate, Delhi.

2. Bishamber Dayal, S/o Late Sh. Sohan Lal, R/o 1362, Bagichi Tansukh Rai, Ajmeri Gate, Delhi.

3. Rani, W/o Bishamber Dayal, R/o 1362, Bagichi Tansukh Rai, Ajmeri Gate, Delhi.

FIR No.3/08 Under Sec.343/365/376/506/323 IPC PS : Hauz Qazi Date of Institution : 5.7.08 Arguments heard on : 26.3.09 Order pronounced on : 26.3.09 *** JUDGMENT In brief, the case of the prosecution is that on 11.12.2007 at about 5.45 or 6.00 pm, all the accused persons i.e. accused Rahul and his parents Bishamber Dayal and Rani, in 426 furtherance of their common intention, abducted the prosecutrix (name of the prosecutrix withheld to conceal her identity) and wrongfully confined her upto 17.12.2007 and also criminally intimidated her by threatening to kill her and her family members if matter is reported to the police. Accused Rahul also repeatedly committed rape on her at the house of his Mausi at Mangol Puri during the period 11.12.2007 to 17.12.2007. All the three accused persons namely Rahul, Bishamber and Rani have been sent to face trial for the offence punishable under Sec.343/365/506/323 IPC and in addition, accused Rahul has also been sent to face trial under Sec.376 IPC.

2. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

3. After hearing on the point of charge, all the three accused were charged on 15.12.08 for the offence punishable under Sec.365/368/506/34 IPC and and accused Rahul was also charged for the offence punishable under Sec.376 IPC to which they pleaded not guilty and claimed trial.

4. Prosecution has examined three witnesses in all in support of its case. PW-1 Ct. Jagat Kumar has stated that on 10.1.2008 he was posted at PS Hauz Qazi and joined the investigation of this case with SI Meena Yadav. He has stated that in his presence, accused Rahul was arrested from his house 427 vide arrest memo Ex.PW1/A and his personal search was conducted vide memo Ex.PW1/B. Thereafter accused Rahul was taken by him to JPN Hospital for medical examination and after the medical examination, the doctor handed over to him one sealed pullanda containing blood sample which he handed over to the IO who seized the same vide memo Ex.PW1/C. He has further stated that on 8.2.2008 he again joined the investigation of this case with SI Meena Yadav and on that day one Vikram Tempo, registration number of which he did not remember, was seized vide memo Ex.PW1/D.

5. PW-2 Smt. Chandrawati is the mother of the prosecutrix. She has stated that her daughter is aged about 19 years and is studying in Class-12th in Bhagirathi Devi Public School, Gali Arya Samaj, Hauz Qazi, Delhi and that nothing has happened with her daughter and accused persons have been falsely implicated in this case. She has further stated that her daughter had friendly relations with Rahul and that she knew Rahul and his parents who are accused persons in this case and present in the Court and that police did not record her statement. As this witness did not support the case of prosecution, she was cross examined at length by ld. Addl. PP for State but without any success. During cross examination, she has admitted that a report was lodged regarding missing of her daughter vide DD 428 no.33-B at PS Hauz Qazi. She has also stated that she did not know if accused Rahul and his parents brought her daughter at the PS and the police recorded the statement of accused and daughter and that her husband Sh. Hira Lal got recorded a DD entry regarding the recovery of her daughter. She has stated that she did not know if at that time Rani, Bishambher and Rahul, i.e. the accused persons took her daughter with them on the assurance that her marriage would be performed with Rahul. She has denied the suggestion that on 17.12.2008 when her daughter came to house, she told her that Rani, Bishambher and Rahul forcibly took her with them in a Vikram on the pretext of marriage but the marriage was not got performed and she was kept confined at Mangol Puri in the house of Smt Kiran, Mausi of Rahul where accused Rahul committed rape on her and she was also threatened not to disclose this fact to anyone, otherwise they will kill her and other family members. She has also denied the suggestion that her daughter told her that accused Rahul was following her for the last about one-and-a-half year and used to say that he would marry her and her daughter, due to fear, could not tell these facts to them prior to report made to the police by them. She has specifically denied the suggestion that all the three accused persons forcibly took her daughter in a Vikram on the pretext of marrying her to Rahul and a rape was committed 429 on her by Rahul at the house of his Mausi.

6. PW-3 Ms. Jai Shree is the prosecutrix. She has stated that her date of birth is 29.4.1989 and she was studying in 12th class on 10.12.2007. She knew accused Rahul as she was having friendly relations with him and the other two accused present in the Court were parents of Rahul. She has further stated that accused Rahul had not taken her anywhere and he alongwith his parents have been falsely implicated in this case and that a false case was made against the accused persons. She has also stated that police recorded her statement but the same was not recorded as per her version and it was falsely recorded by the police. She was also compelled to make false statement before the Magistrate. She was got medically examined by the police. She has admitted her signature at point-A on the statement under Sec.164 CrPC Ex.PW3/A but states that she gave this statement under pressure. As this witness did not support the case of prosecution, she was cross examined by ld. Addl. PP for State. During cross examination, she has denied the suggestion that on 10.12.2007 at about 6.00 pm she went to ease herself near Kali Masjid and when she came out of the toilet, accused Rahul was found standing in the gali and he took her at some distance where his parents Rani and Bishambher i.e. co-accused persons were sitting in a Vikram vehicle and all the 430 three accused persons forcibly pushed her in the said vehicle and her mouth was shut by accused Rahul and he also caught hold her right hand and accused Rani caught hold her left hand and they took her to Mangol Puri and she was pushed forcibly to stairs and kept confined in a room in the house of Smt. Kiran who was Mausi of accused Rahul. She has also denied that she was not allowed to come out of the room and she was told by the accused persons that she should not disclose anything to anyone and they had also assured her to marry her with Rahul. She has also denied the suggestion that after one or two hours, accused Rani and Bishambher went away from there and accused Rahul had a talk with her regarding their marriage and started doing 'badtamiji' and also committed rape on her and as it was late night, she slept in the said room. She has also denied that on 13.12.2007 all the accused persons took her to PS Hauz Qazi where her parents also reached but she was compelled by the accused persons to say that she was not under pressure and that she wanted to marry Rahul and she had no occasion to talk her parents and she gave in writing to the police that she wanted to marry with Rahul and thereafter all the three accused persons again took her to Mangol Puri on the pretext of her marriage with Rahul but the marriage was not performed and the accused Rahul again committed rape on her. She has further denied the 431 suggestion that on 17.12.2007 at about 1.30 or 2.00 pm she was left near Hanuman Vatika, Asaf Ali Road and she reached her house and was weeping as she was frightened by the threat of the accused persons and narrated all the facts to her parents. She has specifically denied the suggestion that the accused persons forcibly took her to Mangol Puri where accused Rahul committed rape on her and that she was intentionally deposing falsely to save the accused persons as she had been won over by the accused persons as they had again assured her to marry with accused Rahul.

7. PW-4 WSI Meena Yadav has stated that on 10.1.2008 further investigation of this case was entrusted to her by SHO, PS Hauz Qazi after the case was registered on the direction of the Court under Sec.156(3) CrPC. During investigation, she arrested the accused Rahul from her house vide arrest memo Ex.PW1/A and his personal search was conducted vide memo Ex.PW1/B. Rahul was also got medically examined in LNJP hospital vide MLC Ex.PW4/A and after his medical examination, the doctor handed over one sealed pullanda allegedly containing blood sample of the accused which was seized by her vide memo Ex.PW1/C. On the same day, prosecutrix was also got medically examined in LNJP hospital vide MLC Ex.PW4/B. She has further stated that on 11.1.2008 432 accused Rahul was again produced for medical examination and he was medically examined vide MLC Ex.PW4/C and thereafter accused Rahul was producedbefore the Court. She also moved an application Ex.PW4/D for recording the statement under Sec.164 CrPC of prosecutrix before the concerned Court for which date 15.1.2008 was fixed and on 15.1.2008 statement under Sec.164 CrPC of the prosecutrix was recorded. She also obtained the copy of the statement Ex.PW3/A vide her application Ex.PW4/E. She has further stated that on 17.1.2008 she recorded the statement under Sec.161 CrPC of the prosecutrix Ex.PW4/F correctly and nothing was added or deleted of my own. As there were allegations against the parents of accused Rahul in the statement under Sec.161 CrPC and 164 CrPC of the prosecutrix, accused Bishamber Dayal and Rani were formally arrested vide arrest memo Ex.PW4/G and H and thereafter accused Bishamber and Rani were released on bail as they were granted anticipatory by the Court. Pw-4 WSI Meena Yadav has further stated that during investigation, she also collected a certificate from Bhagirathi Devi Arya Girls Sr. Secondary School, Bazar Sitaram, Delhi regarding date of birth of the prosecutrix which is Ex.PW4/J. She also seized the vehicle Vikram No.DL-1L-H-4875 vide memo Ex.PW1/D. At the instance of prosecutrix, she also prepared the site plan of the 433 place from where she was taken by the accused persons which is Ex.PW4/K. At the instance of prosecutrix, she also prepared the pointing out memo Ex.PW4/L of the place from where the prosecutrix was taken by the accused persons. She has further stated that the prosecutrix had also given in writing her statement which are Ex.PW4/M and M1 and that after completion of investigation, filed the chargesheet.

8. From the statement of PW-3, the prosecutrix and PW-2 Smt. Chandrawati, her mother, it is clear that on the date of occurrence, the prosecutrix was above 18 years of age. They have denied the incident in their statement rather prosecutrix has stated that she was under pressure while making statement under Sec.164 CrPC. Taking into consideration that neither the prosecutric nor her mother has deposed anything incriminating against any of the accused persons and rather denied the entire incident in totality and even the prosecutrix has stated that accused Rahul had not committed rape on her at the house of his Mausi in Mangol Puri, this Court is left with no option but to acquit all the accused persons. The statement of investigating officer is only in respect of the investigation carried out by her and is not sufficient to prove the guilt of the accused persons.

9. Considering that as the material witnesses i.e. PW-3 the prosecutrix and PW-2 Smt. Chandrawati, mother of the 434 prosecutrix have not supported the case of the prosecution, all the three accused persons are acquitted of the charge. File be consigned to record room.

Announced in the open Court 26.3.2009 ( PRATIBHA RANI ) ASJ-01(Central)/Delhi 435 IN THE COURT OF SMT. PRATIBHA RANI, ASJ-01 (Central), TIS HAZARI COURTS, DELHI SC No.1/07 State Vs Satender @ Gallad S/o Sh. Chander Pal R/o Vill.Ullawas, PS Sadar, Gurgaon, Haryana.

FIR No.94/06 U/s : 186/353/307/468/471 IPC and U/s. 25/27 Arms Act PS : Special Cell Date of Institution : 06.02.07 Arguments heard on : 21.3.09 Order pronounced on : 26.3.09 *** JUDGMENT Accused Satender @ Gallad has been sent to face trial for the offences punishable under Sections 186/353/307/468/471 IPC and U/s. 25/27 Arms Act. Brief facts of the case are that Inspector Attar Singh of Special Cell received a secret information that member of Dharamvir Ulhawas Gang, who got his associate released from police custody and also committed murder in the area of PS Gurgaon Sadar on 1.11.2006 of property dealer namely Sh. Gajraj, is trying to settle in Delhi. Inspr. Attar Singh discussed the said information with ACP, Special Cell/NR and ACP directed the Inspector to develop the said information immediately. Inspr. Attar Singh deputed his 436 informers and HC Raj Singh for developing the information.

ON 8.12.2006 at about 1.10 pm secret informer came to the office of Special Cell and gave the information to Inspr. Attar Singh that Satender Ulhawas @ Gallad would come to meet his associates and would go from Kashmiri Gate side and through Shyam Lal College between 2.30 pm to 3.30 pm and was having illegal arms in his possession and could be apprehended if raid is conducted. After satisfying himself, Inspector discussed the information with ACP who directed for immediate action. On the direction of Inspr. Attar Singh, SI Upender Solanki organized a raiding party consisting of SI Prahlad Singh, HC Bijender Singh, HC Raj Singh, HC Harpal Singh and Ct. Hawa Singh. SI Upender Solanki recorded the information vide DD NO.10 and he alongwith members of raiding party and informer left the office in government vehicle No. DL-1C-J-3566 being driven by Ct. Hawa Singh. On the way at ISBT, Kashmiri Gate SI Upender Solanki got stopped the vehicle and after disclosing about the information, requested 3-4 passersby to join the raid but none agreed and left without disclosing their names and addresses. At about 2.45 PM raiding party reached near Shyam Lal College. There also SI Upender Solanki requested 4-5 passersby to join the raid but none agreed. After alighting from the vehicle SI Upender Solani briefed the 437 team members about the information and put the barricades in front of Shyam Lal College. HC Raj Singh, who was in uniform, was deputed just before the barricades and he was directed that after receiving the information from informer, he would give signal to stop the motorcycle. SI Upender took position on the left side near barricades and SI Prahlad Singh and HC Bijender took position on the right side of barricades. SI Upender Solanki also directed SI Prahlad and HC Bijender that in case the motorcyclist, to whom HC Raj Singh gave signal to stop, fail to stop the motorcycle, they would put the barricades in front of that motorcycle. At about 3.05 PM one motorcycle was seen coming from the side of Kashmiri Gate side after crossing red light signal and the informer pointed out towards that motorcycle No. HR-05-F-3404 LML Freedom which was being driven by Satender @ Gallad who was wearing helmet at that time. On receipt of signal from the informer, HC Raj Singh gave signal to stop the motorcycle. The motorcyclist instead of stopping the motorcycle, accelerated the speed of motorcycle. HC Bijender pushed the barricades ahead and the motorcyclist, whose name was revealed as Satender @ Gallad, threw the motorcycle on the road and took out a countrymade pistol from his left side dub and fired towards the police party but HC Bijender saved himself from that fire. In the mean time HC Raj 438 Singh overpowered that person and SI Upender Solanki snatched the countrymade pistol from him. During casual search of Satender, one live cartridge was also recovered from his left side pocket. On checking the countrymade pistol, one fired cartridge was also recovered from it. After completion of necessary investigation, accused was sent to face trial for the offences complained of.

2. After compliance of provisions of Sec. 207 CrPC, the case was committed to the Court of Sessions.

3. After hearing on the point of charge, accused Satender was charged on 23.7.2007 for the offence punishable under Sec.186, 353, 307, 471 IPC, under Sec. 25/27 Arms Act and also under Sec. 102 D.P. Act to which he pleaded not guilty and claimed trial.

4. Prosecution has examined eleven witnesses in support of its case. All the incriminating evidence appearing against the accused was put to him during his statement under Sec. 313 CrPC to enable him to explain the same. Accused has denied the case of prosecution and stated that he was lifted from Krishna Nagar and after planting the case property upon him, he was falsely implicated in the present case. He has stated that he did not make any disclosure statement and his signatures were obtained forcibly. Accused has not led any evidence in his 439 defence.

5. I have heard ld. Addl. PP for the State and ld. Counsel for the accused and also carefully gone through the record.

6. PW3 ASI Paramjit was working as MHC(M) on the relevant date. He has stated about the depositing of the case property in the malkhana and later on sending the same to FSL, Rohini. He has proved the copy of relevant entries in malkhana register as Ex.PW3/A and of RC as Ex.PW3/B.

7. PW6 Sh. K.C. Varshney, Sr. Scientific Officer (Ballastic), FSL, Rohini has proved his report as Ex.PX.

8. PW8 HC Giri Raj has proved the copies of DD Nos.10 and 22 dated 8.12.2006 as Ex.PW7/A and B respectively.

9. PW8 Sh. Satish Bhatia, Clerk, SDM Office, Karnal has stated that as per record vehicle No. HR-05-F-3404 i.e. LML Scooter having chasis No.101140 and Engine No.101318 is registered in the name of Puran Chand S/o Sh. Ram Lal, R/o 423/13 Extn., Karnal.

10. PW9 Sh. Ravi Shankar, ACP, Special Cell/NR has proved the complaint under Sec. 195 CrPC as Ex.PW4/D and stated that he had filed this complaint being the competent authority and after satisfying himself from the documents placed before him by ASI Rakesh Kumar.

11. PW10 ASI Anil Kumar has stated that on 8.12.2006 he 440 was working as Duty Officer at Special Cell, NDR, Lodhi Colony. He has stated that at about 6.25 pm he received one rukka from HC Bijender which was sent by SI UpenderSolanki and on the basis of which he recorded the FIR No.94/06, copy of which is Ex.PW10/A. He has stated that after registration of the FIR, further investigation of the case was entrusted to ASI Rakesh Kumar.

12. PW11 Sh. Alok Kumar, DCP, Special Cell, PHQ has proved the sanction under Sec. 39 Arms Act as Ex.PW4/E. He has also stated that he gave the sanction after satisfying himself from the material placed before him by the Investigating Officer i.e. FIR, statement of witnesses recorded under Sec. 161 CrPC, seizure memo, FSL report, case diary and other evidence on record.

13. PW4 ASI Rakesh Kumar is the second IO of the case. He has stated that on 8.12.2006 on receipt of DD No.13, copy of which is Ex.PW4/A, he reached Shyam Lal College where SI Upender Solanki alongwith his staff and the accused were found present. SI Upender Solanki handed over the pullandas alongwith the documents prepared by him and also produced the accused before him (PW4). He interrogated the accused and arrested him in this case vide arrest memo Ex.PW1/D. He also prepared the body inspection memo of accused which is 441 Ex.PW4/B and conducted his personal search vide memo Ex.PW1/E. He also prepared the site plan Ex.PW4/C on the pointing out of SI Upender Solanki and also recorded the statement of witnesses. He has stated that he recorded the disclosure statement of the accused which is Ex.PW1/F. He has further stated that after completion of proceedings at the spot, they all alongwith the accused and the case property reached PS Special Cell, Lodhi Colony at 9.30 pm. He deposited the case property in the malkhana and accused was brought to the office of Special Cell at Sector-6, Rohini after getting him medically examined on the way. He has also stated that on 15.12.2006 the pullandas were got sent to FSL, Rohini through SI Upender Solanki and he recorded the statement of SI Upender and MHC(M) ASI Paramjeet in this regard. On 18.12.2006 verification regarding the registration of the motorcycle recovered from the accused was made from Transport Authority, Karnal and he also recorded the statement of concerned Clerk of the authority. He has stated that on 1.2.2007 result was collected from FSL which is Ex.PX and complaint under Sec.195 CrPC was also obtained from Sh. Ravi Shankar, ACP (NR), Special Cell which is Ex.PW4/D bearing the signature of ACP at point- A. On 2.2.2007 permission under Sec.39 Arms Act Ex.PW4/E was obtained from the DCP.

442

14. PW1 HC Raj Singh, PW2 HC Bijender and PW5 SI Upender Solanki were the members of raiding team. PW1 HC Raj Kumar was the only member of the raiding party who was in police uniform and was deputed at a distance of 50-70 steps away from the barricades to give signal at the instance of secret informer to stop the motorcycle. He has stated that at 3.05 PM at the instance of secret informer the driver of the motorcycle who was wearing helmet was signalled to stop and that registration number of the motorcycle was HR-05-F-3404 but the driver of that motorcycle instead of stopping, accelerated the speed and on seeing this HC Bijender put the barricade in front of the motorcycle. The accused stopped the motorcycle and motorcycle was thrown away by the accused on the road and then he took out a country made pistol from his left dub and fired towards HC Bijender. This statement of PW1 itself is highly improbable for the reason that in cross examination of all the three material witnesses it has come that the informer had not given the description of the accused, the colour of the helmet or the colour of the clothes of the accused or the colour of the motorcycle. It is also admitted by these material witnesses that the place where the barricades were put is a very congested area and even at the time when the motorcycle driven by the accused was seen coming, about 15-20 other vehicles were also passing 443 from that place at that time. If the statement of PW1is believed that accused on being signalled to stop, accelerated the speed and the distance between the position of HC Raj Singh and the barricades was about 50-70 steps, in that situation if a barricade is pulled before the motorcycle driven at a high speed by the accused by HC Bijender, the only consequence that can follow is that not only the motorcycle driven by the accused but other vehicles passing close to that motorcycle would also either hit the barricades or the motorcycle is bound to fall because of sudden putting of barricades in front of motorcycle coming at high speed. In that situation there is hardly any possibility of the accused throwing away the motorcycle himself and take out a pistol from his dub and fire towards the police party. Taking into consideration that all the members of the raiding party were just positioned near the barricades, they could hardly give any chance to the accused to take out the weapon specially when the secret information was that he was carrying weapon. There is nothing on record to suggest that the accused suffered any injury due to fall from the motorcycle or motorcycle was having fresh damages after being thrown away by the accused while taking out of the pistol. It is also relevant to mention that without there being any registration number available with the police party, it was difficult for the police party or even for the informer to 444 figure out the motorcycle being driven by accused Satender specially when he was stated to be wearing the helmet. The number of the motorcycle cannot be read from a distance as the front number plate is very small and the colour of the clothes of the accused being not known, the face being not visible due to wearing of helmet, the entire story of the prosecution that at the instance of secret informer, motorcycle driven by the accused was signalled to stop is unbeliveable. It is admitted case of the prosecution that the place where the accused was apprehended was a very congested area and writing work was done in front of the gate of Shyam Lal College and despite that neither any legal action has been taken against the persons who were not willing to join the raiding party nor even the chowkidar/gateman of the College was associated with the proceedings. It is also relevant to mention that second I.O. ASI Rakesh Kumar had reached the spot without even registration of the FIR. PW4 ASI Rakesh Kumar has stated that on receipt of DD No.13 Ex.PW4/A, he reached Shyam Lal College alongwith his staff where accused alongwith other staff members led by SI Upender Solanki were found present. DD o.13 shows that at 3.45 PM SI Upender Solanki informed that one person Satender @ Gallad had been apprehended at G.T. Road, shahdara in front of Shyam Lal College and for further investigation, as per order of Inspr. Attar 445 Singh, ASI Rakesh Kumar be sent to the spot and ASI Rakesh Kumar was informed about this DD who left for the spot. As per rukka time of apprehension is 3.05 PM and time of sending of rukka has been mentioned as 5.10 PM. If it is so then by the time ASI Rakesh Kumar reached, even the pullandas might not have been prepared by SI Upender Solanki and in these circumstances the statement of PW4 that when he reached the spot SI Upender Solanki alongwith his staff was present and accused was produced before him and pullandas and documents were also handed over to him. SI Upender Solanki has no where stated that he talked to Inspr. Attar Singh or made any request at 3.45 PM to send ASI Rakesh Kumar for further investigation. The Body Inspection memo Ex.PW4/B prepared by ASI Rakesh Kumar does not show any fresh injury on the body of the accused and if the prosecution witnesses are to be believed then accused was bound to suffer at least some abrasions when barricade was suddenly put before his speedy motorcycle.

15. There is another reason to disbelieve the statement of prosecution witnesses. It is the case of the prosecution that it was accused Satender who took out a pistol from his dub and fired towards HC Bijender However, in the complaint under Sec. 195 CrPC filed by ACP Ravi Shankar and sanction under Sec.39 Arms Act given by DCP Alok Kumar, there is mention of 446 brief encounter and exchange of fire. In the complaint under Sc. 195 CrPC it is specifically mentioned that police party returned fire in self defence and that accused was over powered and apprehended by the police party after a brief exchange of fire. None of the material witness i.e. PW1 HC Raj Kumar, PW2 HC Bijender and PW5 SI Upender Solanki had stated about exchange of fire between the accused and them or any fire was made by any of the member of the raiding party while over powering accused Satender.

16. In the circumstances, I am of the considered view that testimony of material prosecution witnesses does not inspire any confidence and story of the prosecution appears to be improbable. Accordingly, accused Satender is acquitted of the charge. Case property shall be confiscated to the State after the expiry of period of appeal, if any. File be consigned to Record Room.

Announced in the open Court.

26.3.2009                            ( PRATIBHA RANI )
                                     ASJ-01(Central)/Delhi




                               447
         IN THE COURT OF SMT. PRATIBHA RANI,
         ADDL. SESSIONS JUDGE-01(CENTRAL),
              TIS HAZARI COURTS, DELHI

SC No.20/08

State             Vs    1.    Balwant Singh
                              S/o Late Sh. Johri Lal
                              R/o 1914/11, Chuna Mandi,
                              Paharganj, Delhi.

                        2.    Anjiv Yadav @ Ajay,
                              S/o Sh. Balwant Singh
                              R/o 1917/11, Chuna Mandi,
                              Paharganj, Delhi.

                        3.    Vijay Kumar Yadav,
                              S/o Sh. Balwant Singh,
                              R/o 1914/11, Chuna Mandi,
                              Paharganj, Delhi.

                        4.    Sandeep,
                              S/o Sh. Raghubir Singh,
                              R/o 1907/11, Chuna Mandi,
                              Paharganj, Delhi.

                        5.    Man Singh @ Vikas,
                              S/o Sh. Subhash Chander,
                              R/o 1899/11, Chuna Mandi,
                              Paharganj, Delhi.

                        FIR No.285/07
                        U/s 323/324/34 IPC
                        PS : Pahar Ganj

                        Date of Institution : 1.10.07
                        Arguments heard on : 28.3.09
                        Order pronounced on : 28.3.09

                        ***

JUDGMENT


                        448

Accused Balwant Singh, Anjiv Yadav @ Ajay, Vijay Kumar, Sandeep and Man Singh @ Vikas have been sent to face trial for the offence punishable under Sec.323/324/34 IPC on the basis of the complaint made by Sh. Pradeep @ Bengali. This case was also committed to the Court of Sessions as the cross case bearing FIR No.284/07 registered under Sections 147/148/149/452/308/323/324 IPC was assigned to this Court for disposal.

2. In brief the case of the prosecution is that on 7.5.2007 the complainant Sh. Pradeep @ Bngali lodged a complaint with the police stating that he is a social worker and also used to do the business of property. At about 8.30 PM he had a talk on telephone with Ajay, son of his uncle Balwant and quarrel started on phone itself. When he went to house No.1915/11, Chuna Mandi, Pahar Ganj belonging to his uncle Raj Kumar, accused Ajay, Vijay, Balwant, Man Singh and Sandeep pelted stones on them due to which he, his wife Deepa and Kishan @ Abhishek received injuries. Police came to the spot and took them to LHMC where they were treated and discharged by the doctor. During investigation, all the five accused persons were arrested and after completion of investigation, they were sent to face trial for the offences complained of.

2. After committal of the case to the Court of Sessions, 449 all the five accused persons were charged on 19.3.2008 for the offence punishable under Sec.323/324/34 IPC to which they pleaded not guilty and claimed trial.

3. Prosecution has examined three witnesses in all in support of its case i.e. PW-1 Sh. Pradeep @ Bengali - the complainant/injured, PW-2 Smt. Deepa and PW-3 Sh. Abhishek both injured.

4. PW-1 Sh. Pradeep @ Bengali has stated that on 6.5.2007 at about 10.00 PM he was passing through gali No.11 in which accused persons used to reside and at that time there was darkness in the gali. Some quarrel was going on in the gali between some unknown persons and the persons involved in the occurrence were pelting stones. The stones hit him, his wife Deepa and Kishan @ Abhishek, his cousin who were also with him at that time. He has stated that he was removed to LHMC by the police and later on police met him and obtained his signature on Ex.PW1/A but he did not know its contents. Police seized his shirt which was having blood stains vide memo Ex.PW1/B. He has also stated that he did not know who caused injuries to him, his wife and his cousin.

5. As this witness did not support the case of prosecution, he was cross examined at length by Ld. Addl. PP for State. During cross examination on behalf of State, he has denied that 450 statement Ex.PW1/A was recorded by the police on his dictation and the same was read over to him before obtaining his signature. He has also denied that at about 8.30 PM he had a talk on telephone with accused Ajay son of accused Balwant and a quarrel started on phone itself and that he went to house No.1915/11, Chuna Mandi belonging to his uncle Raj Kumar where accused persons met him and started beating him, his wife and Kishan with stones. PW1 has specifically denied the suggestion that the accused persons are the same persons who caused injuries to him, his wife and Abhishek.

6. PW2 Smt. Deepa has also stated that on 6.5.2007 at about 10.00 PM she alongwith her husband was passing through gali No.11 in which accused persons used to reside. There was darkness in the gali and some quarrel was going on between some unknown persons and the persons involved in the occurrence were pelting stones. The stones hit her and her husband and Kishan @ Abhishek, cousin of her husband who were also with her at that time. She was removed to LHMC by the police. She has stated that she did not know who caused injuries to her, her husband and cousin of her husband. She has further stated that police never met her or recorded her statement.

7. As this witness also did not support the case of 451 prosecution, she was also cross examined by the ld. Addl. PP at length but without any success. She has specifically denied the suggestion that accused persons are the same persons who caused injuries to her, her husband and cousin of her husband.

8. PW3 Abhishek has stated that on 6.5.2007 at about 10.00 PM he was present in the gali and there was darkness. Some quarrel was going on in the gali between some unknown persons and the persons involved in the occurrence were pelting stones. One of the stone hit him and he also came to know that Pradeep and his wife also sustained injuries in that quarrel. He was removed to LHMC by the police. He has stated that he did not know who caused injuries to me and that police never met nor interrogated him.

9. As this witness also did not support the case of prosecution, he was also cross examined by the ld. Addl. PP for the State. This witness has also specifically denied the suggestion that the accused persons are the same persons who caused injuries to him.

10. From the above statement made by the complainant/injured i.e. PW-1 Sh. Pradeep, PW-2 Smt. Deepa and PW-3 Sh. Abhishek who also received injuries in this incident, it is clear that they have not supported the case of prosecution, hence no fruitful purpose would have been served 452 by examining other witnesses who are not witness of occurrence. Hence PE was closed by order of the Court. As nothing incriminating had come on record against the accused persons which could be put to them, their statement under Sec.313 was CrPC dispensed with.

11. As the evidence adduced by the prosecution does not prove the guilt of accused persons for which they have been charged, all the five accused persons namely Balwant Singh, Anjiv Yadav @ Ajay, Vijay Kumar, Sandeep and Man Singh @ Vikas are acquitted of the charge. File be consigned to Record Room.


Announced in the open Court

28.03.2009                          ( PRATIBHA RANI )
                                    ASJ-01(Central)/Delhi




                              453
         IN THE COURT OF SMT. PRATIBHA RANI,
         ADDL. SESSIONS JUDGE-01(CENTRAL),
              TIS HAZARI COURTS, DELHI

SC No.101/07 & 299/07

State             Vs    1.    Pradeep @ Bengali
                              S/o Sh. Kartar Singh
                              R/o 1887/A, Gurudwara
                              Road, Chuna Mandi,
                              Paharganj, Delhi.

                        2.    Raje Lal
                              S/o Late Sh. Babu Lal
                              R/o 1915/11, Chuna Mandi,
                              Pahar Ganj, Delhi.

                        3.    Manish @ Rivit
                              S/o Sh. Raje Lal,
                              R/o 1915/11, Chuna Mandi,
                              Paharganj, Delhi.

                        4.    Arun Yadav @ Gabbar
                              S/o Sh. Ram Avtar
                              R/o 1915/11, Chuna Mandi,
                              Paharganj, Delhi.

                        5.    Krishan @ Abhishek
                              S/o Sh. Raj Kumar
                              R/o 191511, Chuna Mandi,
                              Paharganj, Delhi.

                        6.    Anup Kumar @ Deepu
                              S/o Sh. Bhopal Rao
                              R/o 1915/1437, Gali No.11,
                              Chuna Mandi, Paharganj,
                              Delhi.

                        7.    Pritam kumar @ Toni,
                              S/o Sh. Kartar Singh,
                              R/o C-179/166, Aram Bagh,
                              Paharganj, Delhi.


                        454
                                FIR No.284/07
                               U/s : 147/148/149/452/
                               308/323/324/34 IPC
                               PS : Pahar Ganj


                               Date of Institution : 13.7.07 &
                               1.10.07
                               Arguments heard on : 28.3.09
                               Order pronounced on : 28.3.09


                               ***


JUDGMENT

Accused Pradeep @ Bengali, Raje Lal, Manish @ Rivit, Arun Yadav @ Gabbar, Kishan @ Abhishek, Anup Kumar @ Deepu and Pritam Kumar @ Toni have been sent to face trial for the offences punishable under Sections. 147/148/149/452/308/323/324/34 IPC. In brief the case of prosecution is that complainant/injured Balwant Singh made statement before the police to the effect that on 7.5.2007 at about 10.00 PM he was sleeping on a cot outside his house. Suddenly he heard the noise of quarrel and in the mean time Pradeep @ Bengali who is his nephew alongwith his other relations namely Kishan @ Abhishek, Raje Lal, Toni, Gabbar, Rivit, Deepu and others came near his cot and on seeing him, said 'PEHLE ISSI BUDDE KO MAJJA CHAKHANA HAIN' and after breaking the glass bottle which he was holding in his right hand, hit the 455 same near his left knee. Relations of Pradeep were also holding danda, bricks and bottles in their hands. When he sustained injuries, he cried due to pain. Pradeep and his relatives also entered and attacked his house. His wife Lalli Devi, his sons Raju and Vijay who were inside the house, were also given beatings by these persons. In the scuffle, Pradeep and his associates also suffered injuries. He has a dispute with Pradeep for the last 8-10 years over a government laterine as Pradeep wanted to built a house. It is also stated in the complaint that after the incident of beating, they also pelted bricks and stones on his house. Police came to the spot and injured were taken to hospital. During investigation accused persons were arrested and after completion of investigation, they were sent to face trial for the offences complained of.

2. After compliance of provisions of Sec. 207 CrPC, the case was committed to the Court of Sessions.

3. After hearing on the point of charge, accused persons were charged on 09.01.2008 for the offence punishable under Sec.147/148/452/304/308/324/323 read with 149 IPC to which they pleaded not guilty and claimed trial.

4. Prosecution has examined six witnesses in support of its case i.e. PW-1 Sh. Balwant Singh - the complainant/injured, PW-2 Sh. Vijay, PW-3 Sh. Raju, PW-4 Sh. Sandeep, PW-5 Sh. 456 Raja, all injured in support of its case. PW-6 Sh. Rajinder was given up by the ld. Addl.PP being unnecessary.

5. PW-1 Sh. Balwant Singh has stated that on 6.5.2007 at about 10.00 PM he was sleeping outside his house on a cot and at that time there was no light in the street. There was some quarrel in the gali and the persons involved in the occurrence were pelting stones, broken bottles. He has also stated that one of the broken bottle hit on his leg due to which he sustained injury on his right leg. His other family members also came out of the house on hearing the noise of quarrel and they also sustained injuries. Due to darkness he could not see the persons who were quarrelling in the gali and caused injury to him and his family members. He has further stated that somebody informed the police on number '100' and the police came to the spot and removed him to LHMC where local police also reached and obtained his signature on Ex.PW1/A but he did not know its contents as the same was not read over to him before obtaining his signature. His wife Smt. Lali Devi also sustained injuries in the said occurrence who was also removed to RML hospital where she died later on. On 7.5.2007 he identified her dead body vide his statement Ex.PW1/B.

6. As this witness did not support the case of prosecution, he was cross examined at length but during his cross 457 examination nothing material has come out which could be of some help to the case of prosecution. This witness has denied the suggestion that his statement Ex.PW1/A was recorded on his dictation and the same was read over to him. He has also denied the suggestion that at about 10.00 PM when he was sleeping outside his house on a cot, accused Pradeep Bengali alongwith Kishan @ Abhishek, Raje Lal, Toni, Gabbar, Rivit, Deppu and some other persons came near him and accused Pradeep Bengali told him that 'PEHLE ISSI BUDDE KO MAJJA CHAKHANA HAIN' and hit a broken glass bottle, which he was having in his right hand, near his (PW1) left knee. He has further denied the suggestion that the other associate of Pradeep were also having danda, brick and bottles in their hands and thereafter Pradeep alongwith his associates attacked on his house and entered in the house and also started causing injury to his wife Laley Devi and his sons Raju and Vijay and when his family members tried to save themselves and grappled with the accused persons, Pradeep and his associates also sustained injuries. However, this witness has admitted it to be correct that there was dispute with accused Pradeep over a government laterine which is situated in the gali and hot words were exchanged between them and Pradeep prior to this incident. He has denied that the accused persons also pelted bricks and stones on them and his nephew Sandeep and 458 Raja were also given beatings by Pradeep and his associates. PW1 has further denied the suggestion that on 8.6.2007 he alongwith his sons Raju and Vijay went to the office of DIU (Central) and met the IO and made statement mark PW1/B clarifying that at the time of occurrence Abhishek was having pistol in his hand who alongwith other accused persons namely Pradeep, Raje Lal entered in his house after causing injury to him where his wife and his sons were taking meals and later on his sons Raju and Vijay told him that the above persons while entering in the house caused injuries to them and accused Pradeep kicked in the chest of his wife and also hit a bottle on her head due to which his wife had fallen down there and became unconscious and their other associates namely Pritam @ Toni, Arun Kumar @ Gabbar, Manish @ Rivit, Anoop @ Deppu continued pelting bricks and broken bottles on them. He has denied that Raja, Sandeep and Man Singh who also reached there were also given beatings by the accused persons and his wife died due to the kicks blow given by accused Pradeep and by hitting a bottle on her head. PW-1 has specifically denied the suggestion that the accused who were known to him previously, were the persons who caused injuries to him and his other family members and that his wife died later on.

7. PW-2 Sh. Vijay has stated that on 6.5.2007 at about 459 10.00 PM he was present at his house and was taking meal alongwith his mother and elder brother Raju. At that time there was no light in the street. He has stated that there was some quarrel in the gali and the persons involved in the occurrence were pelting stones, broken bottles. He alongwith other family members came out of the house on hearing the noise of quarrel and they also sustained injuries. Due to darkness he could not see the persons who were quarrelling in the gali and who caused injury to him and his family members. Somebody informed the police on number '100' and the police came to the spot and removed him to LHMC where local police also reached. His mother Smt. Laley Devi also sustained injuries in the said occurrence who was removed to RML hospital where she died later on.

8. As this witness also did not support the case of prosecution, he was cross examined by ld. Addl. PP for the State but without any success. He has denied the suggestion that the accused persons present in the Court had entered his house after causing injuries to his father who was sleeping outside on a cot and also caused injuries to him, his brother and his mother. He has also denied the suggestion that on 8.6.2007 he alongwith his father and brother Raju went to the office of DIU and made statement mark PW2/B specifying the role of each accused at the 460 time of occurrence. He has specifically denied the suggestion that the accused persons, who were known to him previously, caused injuries to him and his other family members in which his mother had died later on.

9. PW-3 Sh. Raju - another injured has stated that on 6.5.2007 at about 10.00 PM he was present at his house and was taking meal alongwith his younger brother Vijay and mother. At that time there was no light in the street. Some quarrel was going on in the gali and the persons involved in the occurrence were pelting stones and broken bottles. He alongwith other family members also came out of the house on hearing the noise of quarrel and they also sustained injuries. PW-3 has stated that due to darkness he could not see the persons who were quarrelling in the gali and caused injury to him and his family members. Somebody informed the police on number '100' and the police came to the spot and removed him to LHMC where local police also reached. His mother Smt. Laley Devi also sustained injuries in the said occurrence who was also removed to RML hospital where she died later on.

10. As this witness has also not supported the case of prosecution, he was cross examined by the ld. Addl. PP. During his cross examination this witness has also denied the suggestion that the accused persons had entered in his house after causing 461 injuries to his father who was sleeping outside on a cot and also caused injuries to him, his brother and his mother. He has also denied the suggestion that on 8.6.2007 he alongwith his father and brother Raju went to the office of DIU and made statement mark PW3/B specifying the role of each accused at the time of occurrence. This witness has also specifically denied that the accused persons, who were known to him previously, were the persons who caused injuries to him and his other family members.

11. PW-4 Sh. Sandeep and PW5 Sh. Raja, both injured, have stated that on 6.5.2007 at about 10.00 PM they were present at their house and at that time there was no light in the street. There was some quarrel in the gali and the persons involved in the occurrence were pelting stones, broken bottles. On hearing the noise of quarrel they came out of the house and they also sustained injuries. Due to darkness they could not see the persons who were quarrelling in the gali and who caused injury to them and also to their uncle Balwant and his family members. Somebody informed the police on number '100' and the police came to the spot and removed them to LHMC. Their aunty Smt. Laley Devi also sustained injuries in the said occurrence who was also removed to RML hospital where she died later on.

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12. As both these witnesses did not support the case of prosecution, they were also cross examined by ld. Addl. PP but during their cross examination also no material has come out which could attribute any role to the accused persons. Both these witnesses have also specifically denied that the accused persons were the same persons who caused injuries to them and also to their uncle, aunty and cousins.

13. From the above statement made by the complainant/injured i.e. PW-1 Sh. Balwant Singh and other injured persons i.e. PW-2 Sh. Vijay, PW-3 Sh. Raju, PW-4 Sh. Sandeep, PW-5 Sh. Raja, it is clear that they have not supported the case of prosecution, hence no fruitful purpose would have been served by examining other witnesses who are police officials and doctor, hence PE was closed by order of the Court. As nothing incriminating had come on record against the accused persons which could be put to them, their statement under Sec.313 was CrPC dispensed with.

14. As the evidence adduced by the prosecution does not prove the guilt of accused persons for which they have been charged, all the seven accused persons namely Pradeep @ Bengali, Raje Lal, Manish @ Rivit, Arun Yadav @ Gabbar, Kishan @ Abhishek, Anup Kumar @ Deepu and Pritam Kumar @ Toni are acquitted of the charge. Case property shall be 463 confiscated to the State after the expiry of period of appeal, if any. File be consigned to Record Room.


Announced in the open Court         ( PRATIBHA RANI )
28.3.2009                           ASJ-01(Central)/Delhi




                              464
      IN THE COURT OF SMT. PRATIBHA RANI,

ASJ-01 (CENTRAL),TIS HAZARI COURTS, DELHI SC No.267/07 State Vs 1. Mohd. Siddiqui, S/o Sh. Shahnu, R/o Usman Pur, Paanchwa Pusta, Delhi.

Permanent address :

Village Mayank, Post office Bura Buri, PS Mayank, District Gauwahati, Assam.

2. Mohd. Azibullah @ Akash, S/o Sh. Mohd. Harish, R/o Village Turyahi, Post office Lalmaniha, PS Lokhar, District Madhubani, Bihar.

3. Robin Mandal, S/o Sh.Naru Gopal Mandal R/o Village Patuli, PS : Purvasthali, Distt. Vardhman, West Bengal.

(Already discharged)

4. Mohd. Shakeel, S/o Sh. Mohd. Zaheer, R/o Village Bachhar Pur, PS Poopri, P.O. : Nanpur, District Sitamarhi, Bihar

5. Raju Kumar Mandal, S/o Sh. Ravinder Mandal, R/o House No.371, Village Reva, District Satna, Post Office Mayyar, Madhya Pradesh.

465

6. Salim, S/o Sh. Mohd. Sarif Shamshuddin, R/o H. No.172, Gali No.22, Zakir Nagar, Okhla, New Delhi FIR No.69/06 Under Sec.363/376(g)&(f)/34 IPC PS : Darya Ganj Date of Institution : 25.3.06 Arguments heard on : 21.3.09 Order pronounced on : 27.3.09 *** JUDGMENT Case FIR No.64/06 dated 27.1.2006 was registered on the basis of statement made by Tabassum, elder sister of the child victim (name of the child victim withheld to conceal her identity). As per statement made by Tabassum before SI Shambhu Nath, she alongwith her four sisters and two brothers used to reside in Jhuggi No.278, Mool Chand Basti, Part-III near Power House, Darya Ganj. The youngest sister i.e. the child victim aged about 8 years was studying in 3rd standard in a Government School near Shanti Van. She used to go to her school at 7.00 am and return at 12.00 noon. Thereafter she used to go for tuition at 1.00 pm at Darya Ganj and return at about 5.00 pm daily and thereafter she used to go for play. On 27.1.2006 also the child victim left her house at about 5.15 pm to 466 play near her house and returned at 7.30 pm. The complainant noticed blood stains on her clothes and she questioned her younger sister as to what had happened to her. The child victim informed that two boys namely Shakeel and Akash @ Azibullah allured her to accompany them on the pretext that they would give biscuit to her and took her in a rickshaw from Mool Chand Basti to Feroz Shah Kotla. Shakeel committed rape on her at a deserted place. The complainant Tabassum narrated the incident to her parents and also checked her younger sister. She noticed bleeding from her private part who also complained of pain. Then she alongwith her uncle Mohd. Intezar took her to LNJP Hospital where police recorded her statement.

2. The Chargesheet shows that Duty Constable Yashvir Singh posted at LNJP Hospital of PS Darya Ganj reported about the admission of the child victim vide DD No.23-A which was assigned to SI Shambhu Nath who alongwith Ct. Rajiv reached the spot. He obtained the MLC of the child victim as per which the child was referred to Gynae Emergency for expert opinion and management. The child victim was examined in Gyane Emergency and the clothes, blood sample and vaginal smear of the victim were handed over by the doctor in sealed parcels alongwith sample seal which were seized by the IO. The doctor declared the child victim unfit for statement, therefore, statement 467 of her eldest sister Tabassum was recorded on the basis of which case under Sec.363/376/34 IPC was registered.

3. Subsequently statement of the child victim was also recorded wherein she named other accused persons also. During investigation, accused Mohd. Siddiqui, Akash @ Azibullah, Robin Mandal, Mohd. Shakeel, Raju Kumar and Salim were arrested. After completion of investigation, accused Mohd. Siddiqui, Akash @ Azibullah, Robin Mandal (now discharged) were sent to face trial for the offence punishable under Sec.363/34 IPC whereas accused Raju Kumar, Shakeel and Salim were chargesheeted for the offence punishable under Sec.376(g)(f) IPC.

4. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

5. After hearing on the point of charge, the five accused namely Mohd. Siddiqui, Mohd. Azibullah @ Akash, Mohd. Shakeel, Salim and Raju Kumar Mandal were charged for the offence punishable under Sec.376 (2)(f&g) IPC and also under Sec.366 r/w Section 34 IPC to which they pleaded not guilty and claimed trial. Accused Robin Mandal was discharged vide order dated 20.5.2006.

6. Prosecution has examined 21 witnesses in all in support of its case. All the five accused have also been 468 examined under Section 313 CrPC to enable them to explain the evidence appearing against them. Accused Mohd. Siddiqui has stated that on 27.1.2006 he was sleeping at his house at about 10.00 pm when police officers alongwith an informer came and the informer said that his (informer's) quilt (rajai) has been stolen by his friend Akash and asked him to find out Akash for which he refused. He was taken to PS Kotwali and after one or two hour, Akash was also brought there and from there, they were taken to PS Darya Ganj during night time and in the hospital, they were shown to the rape victim but she did not identify both of them and thereafter they were again brought to the police station and falsely implicated in this case.

7. Accused Akash has stated that on 27.1.2006 police brought Mohd. Siddiqui to Meena Bazar at about 11.00 pm and the informer said that he (accused Akash) had stolen 11 'Rajai' and Mohd. Siddiqui was asked to get him arrested. He was taken to the police station where Robin was also present. Then police took him, Mohd. Siddiqui and Robin to GB Pant Hospital and they were shown to the rape victim but she did not identify any of them. Thereafter they were again brought to the PS Darya Ganj. Initially the IO wanted to release them but after receiving telephone call from the SHO, they were falsely implicated in this case.

469

8. Accused Mohd. Shakeel has stated that he was lifted from Raen Basera at Fawara by three police officers and later on falsely implicated in this case. He was taken by the police to make some inquiry in some incident of quarrel and in the police station he was asked whether he knew Lambu, Akash, Salim etc. He was also asked whether he knew the rape victim to which he said 'Yes' and thereafter he desired to meet the rape victim but he was not allowed and later on, he was sent to Jail.

9. Accused Raju Kumar has stated that he is a rickshaw puller and that he was taken from Lal Qila by police staff of PS Jama Masjid and he did not know why he has been implicated in this case.

10. Accused Salim has stated that he is innocent and has been falsely implicated in this case by SI Shambhu Nath as he abused him and also caught him by his collar about 4-5 days prior to this case and at that time SI Shambhu Nath threatened to falsely implicate him in this case. On 27.1.2006 he was taken by Ct. Raj Kishore and Satbir Dahiya of PS Jama Masjid and threatened to prepare a case under Sec.110(g) CrPC as he was BC of the area of PS Jama Masjid. On 29.1.2006 he was produced before SDM at Kashmere Gate and he was released by the SDM and from there he reached Jama Masjid at about 4.00 or 5.00 pm. There one boy asked him to see the film 'Rang De 470 Basanti' at Delite Cinema and when he was present at Delite Cinema to see the show of 6.00 to 9.00 pm, he was taken by SI Shambhu Nath to make inquiry in a pick-pocketing case and told him that one person was naming him as pick-pocket and that he had taken Rs.10,000/- of that person. He requested SI Shambhu Nath to release him but he was not released though no complainant was found. He was forced to confess about this offence and made to put his thumb impression though he can sign. He requested SI Shambhu Nath to implicate him in some lighter offence but SI Shambhu Nath falsely implicated him in this rape case. One person present with SI Shambhu Nath asked him to arrange some money for which he refused.

11. Accused Shakeel has examined Sh. Vijay Kumar as DW-1 in his defence. DW-1 Sh. Vijay Kumar has stated that he is working as Supervisor in NGO namely ASHREY ADHIKAR ABHIYAN which was running a night shelter 'Raen Basera' at Chandni Chowk. He knew accused Mohd. Shakeel as he used to work as Committee Worker. He has further stated that on 27.1.2006 accused Mohd Shakeel was on duty from 7.00 am to 7.00 pm and that he had never seen accused Mohd. Shakeel indulging in any illegal activity. However, in cross examination, he has admitted that during duty hours, no register is maintained to record the movement of the employees. No attendance 471 register has been produced by him in support of his statement.

12. I have heard Sh S.C. Sharma, Addl. PP for the State and Sh. B.D. Sharma, counsel for accused Shakeel and Ms. Bindiya Malhotra, Amicus Curaie for remaining four accused persons and also gone through the record carefully.

13. PW-1 is the child victim, PW-5 Sh. Nizamuddin is her father, PW-6 Mohd. Intezar is her uncle and PW-18 is Tabassum, the complainant and elder sister of child victim. The statement of PW-1, the child victim has been recorded without oath after putting questions to her to ascertain her capability to understand the questions and answer them. She has stated that she alongwith her brothers and sisters used to reside at her house and was studying in First Standard in a Government School situated near her house. She has also stated that her sister Tarannum worked as a maid servant in a kothi and stayed in Jama Masjid. She has further stated that accused Raju, Shakeel and Akash have taken her to a Jhuggi in a rickshaw and accused Raju and Shakeel committed rape on her. She has further stated that third boy had also committed rape on her but she was unable to recollect his name. She has stated that accused Mohd. Siddiqui and Akash had not committed any rape. After seeing accused Salim, she stated that he had also committed rape on her and thereafter they took her in a rickshaw and left her near her 472 home. She has stated that when she was raped, she felt acute pain. She wanted to shout but accused Raju pressed her mouth at the time of committing the rape. She knew all accused persons before the incident. When she reached home, she stated these facts to her sister Tabassum. She was taken to hospital by her uncle and sister Tabassum. Her clothes were blood stained. She was medically examined. Police also reached the hospital and she narrated the facts to the police also. The blood stained clothes were seized by the police. Statement was also recorded before the Magistrate which is Ex.PW1/A bearing her signature at point-A. As this child witness was deviating from her earlier statement, she was cross examined by ld. Addl. PP. During cross examination, she has admitted the suggestion given by ld. Addl. PP for State that her sister Tarannum used to work and live at patri at Meena Bazar alongwith Akash, Shakeel, Raju and Siddiqui @ Lambu. She also admitted that she stated before the police in her statement dated 18.2.2006 that on 27.1.2006 when she was playing near her jhuggi, accused Raju and Salim met her and they were known to her previously and that accused Salim used to reside at Meena Bazar, Jama Masjid alongwith her sister Tarannum and the accused persons used to meet her there and they also used to give her biscuits and choclates. She has also admitted having stated before the police that on that date, in the 473 evening, accused Raju and Salim met her at Mool Chand Basti and offered to give her biscuits and she accompanied them. They took her to Rajghat Power House where accused Akash, Shakeel and Mohd. Siddiqui met her on a rickshaw being pulled by one person wearing red shirt and they started talking to each other and after sometime, accused Raju and Salim made her to sit in the rickshaw alongwith Akash, Shakeel and Mohd. Siddiqui and she was taken to Power Station Stadium at a lonely place where accused Salim and Raju reached on foot and thereafter accused Raju and Salim offered to give her biscuits and took her to a place in the bushes, laid her down in a pit and thereafter she was raped. She has further stated that she came to know the name of rickshaw puller as Robin Mandal. She has identified her clothes Ex.P1 and Ex.P2 to be the same which she was wearing at the time of incident.

14. PW-5 Sh. Nizamuddin is father of the child victim. He has stated that on 27.1.2006 at about 7.30 pm, his daughter aged about 7 years reached home and her clothes were blood soaked. Her elder sister Tabassum asked from her as to what had happened and she replied that Raju and Salim met her at Mool Chand Basti and took her in the bushes near Ferozshah Kotla and that three other boys namely Aakash, Shakeel and Siddiqui were also present there and that Raju, Salim and Shakeel 474 committed rape on her. He has further stated that his daughter Tabassum and brother Intezar took the child victim to JPN Hospital for medical treatment. He has also stated that all the above accused persons were known to his daughter Tarannum aged about 19 years, who roams here and there and live like 'khanabadosh' and is not having good character (aawara) and that he did not know any of the accused persons personally.

15. PW-6 Mohd. Intezar, uncle of the child victim has stated that on 27.1.2006 at about 7.30 pm, he was present at the house of child victim and when she returned home, her clothes were blood stained. On being asked by her sister Tarannum, she did not say anything as she was nervous and after sometime, she said that Akash and Shakeel took her to Kotla Ground and Akash had done 'galat kaam' with her. She has also mentioned 2-3 names. Then he alongwith Tabassum took her to Irwin Hospital and on way to hospital, the child victim became unconscious. As this witness was resiling from his earlier statement, he was cross examined by ld. Addl. PP for State. During cross examination by State, he admitted that the child victim had told that Akash and Shakeel had taken her by tempting her to give biscuits and Shakeel had committed rape on her.

16. PW-18 Ms. Tabassum, the complainant and elder 475 sister of the child victim has stated that at the time of incident, the child victim was aged about 6 years and was studying in class-III in a Government School near Shanti Van close to their house. On 27.1.2006 in the evening time, her sister was playing near the house and she came back at about 7.30 pm. She saw blood on the clothes of her sister and on inquiry, she told that Shakeel and Akash took her to Firoz Shah Kotla ground in a rickshaw on the pretext to give her biscuit and that Shakeel and Aaksh did 'galat kaam' i.e. rape on her. PW-18 Ms. Tabassum has further stated that first she told this incident to her uncle and then to her parents. The child victim was bleeding from her private part and she alongwith her uncle Mohd. Intezar took her sister to JPN hospital where she got treatment. Police reached the hospital and recorded her statement Ex.PW18/A.

17. PW-2 HC Anil is the Duty Officer who has recorded the FIR of this case and proved the copy of the same as Ex.PW2/A. PW-3 Ct. Balraj took accused Akash @ Azibullah to LNJP hospital for medical examination where after the medical examination, the doctor handed over the blood sample sealed with the seal of LNJP hospital which he handed over to the IO who seized the same vide memo Ex.PW3/A. PW-4 Ct. Surender, PW-8 HC Gajender, PW-9 Ct. Virender and PW-10 Ct. Sajjan Singh were with the IO SI Shambhu Nath at the time 476 of arrest of the accused persons.

18. PW-7 Ct. Rajiv was with IO SI Shambhu Nath and accompanied him to LNJP Hospital on receipt of copy of DD No.23-A. He has stated that in his presence, the IO collected the MLC of the child victim, recorded the statement of complainant Tabassum, the pullandas handed over by the doctor were given by him to the IO who seized the same vide memo Ex.PW7/A and he also took the rukka to police station and got the FIR registered. PW-19 Ct. Yashvir Singh who was working as Duty constable at LNJP Hospital, had informed PS Darya Ganj about the admission of a girl aged about 8 years with alleged history of sexual assault which was recorded vide DD No.23-A, copy of which is Ex.PW19/A.

19. PW-11 SI Ashok Kumar was posted in Crime Team, Central District at that time and on the request of IO SI Shambhu Nath, he alongwith crime team inspected the spot on 31.1.2006 from 11.00 am to 11.45 am and photographer HC A.K. Krishnan took the photographs. He has proved the report prepared by him after inspection of the spot as Ex.PW11/A. PW-13 HC A.K. Krishnan is the photographer who alongwith the crime team reached the spot and took the photographs. He has proved the photographs as Ex.PW13/A1 to A5 and negatives as Ex.PW13/B1 to B5.

477

20. PW-12 Ct. Suresh took the case property to FSL, Rohini vide RC no.203/21 and stated that so long the case property remained in his custody, the same was not tampered with. PW-16 HC Narender Singh was working as MHC(M) at PS Darya Ganj the relevant time. He has stated that on the direction of IO, on 6.3.2006, he handed over 18 pullandas with intact seal to Ct. Suresh for depositing the same at FSL, Rohini and that so long the case property remained in his custody, the same was not tampered with.

21. PW-15 Dr. Kamna has identified the handwriting and signature of Dr. Kanchan on the MLC Ex.PW15/A of child Victim at point-A and stated that Dr. Kanchan had left the services of hospital and that she was conversant with the handwriting and signature of Dr. Kanchan as she had seen her signing and writing during the course of official duties.

22. PW-17 Dr. Anil Mittal examined the child victim to ascertain her age and as per the report Ex.PW17/A, the age of the girl was between 7-8 years at that time. He has also examined vaginal smear and prepared the report Ex.PW17/B as per which the vaginal smear showed vaginal epithelial cells, bacterial debris and lots of RNCs and WBCs and a few sperm heads were also seen in the same.

23. PW-21 Ms. Kaveri Baweja, the then MM has recorded 478 the statement Ex.PW1/A under Sec.164 CrPC of the child victim which bears her signature at point-B and that of child victim at point-A.

24. PW-20 SI Shambhu Nath, the IO of the case has stated that on 27.1.2006 while he was posted at PS Darya Ganj, on receipt of DD no.23-A Ex.PW19/A, he alongwith Ct. Rajiv reached Emergency, LNJP Hospital and collected the MLC of the rape victim who was referred to Gynae Ward. The doctor handed over four sealed pullandas which were seized vide memo Ex.PW17/A. The child victim was unfit for statement, hence he recorded the statement of Tabassum, sister of the child victim present in the hospital and made his endorsement Ex.PW20/A thereon and sent the rukka through Ct. Rajiv for registration of the case who, on return, handed over to him the copy of FIR and original rukka. He also recorded the statement of Mohd. Intezar, uncle of the complainant and child victim who also present in the hospital. He deposited the case property in the Malkhana and on 28.1.2006 after the child victim was declared fit for statement, he recorded her statement.

25. PW-20 SI Shambhu Nath has further stated that on 29.1.2006 he alongwith HC Gajender and Ct. Surender was present at the corner of Faiz Bazar during the investigation of this case and at about 3.00 pm, on the basis of secret 479 information, accused Mohd. Siddiqui @ Lambu, Azibullah @ Akash and Robin Mandal were apprehended from Meena Bazar. They were interrogated and arrested and these accused persons also made disclosure statements. Thereafter at the instance of accused Akash, accused Shakeel was arrested from Raen Basera, Gurudwara, Chandni Chowk and his personal search was also conducted and this accused also made disclosure statement. Thereafter accused Mohd. Siddiqui was sent for medical examination and after the medical examination, the doctor handed over sealed pullandas which were seized vide memo Ex.PW8/D. On 29.1.2006 one cycle rickshaw produced by Rohin Mandal was also seized vide memo Ex.PW8/X and photocopy copy of one register relating to the said rickshaw produced by Sh. Yag Dutt Sharma was seized vide memo Ex.PW8/Y and case property was deposited in the Malkhana.

26. PW-20 SI Shambhu Nath, the IO has further stated that on 30.1.2006 when he alongwith HC Gajender and Ct. Virender was investigating this case and accused Mohd. Siddiqui, Shakeel and Akash were also with them, they went in search of other accused persons namely Raju and Salim in Meena Bazar. On the pointing out of accused Akash and Shakeel, accused Raju Mandal was overpowered and arrested and his personal search was conducted and this accused also made disclosure statement 480 Ex.PW8/E2. Accused Akash @ Azibullah was sent to MAMC for medical examination where doctor handed over one sealed pullanda which was seized vide memo Ex.PW8/F. He deposited the case property in the Malkhana and produced these accused persons in the Court and obtained one day police remand of accused Raju and also made search of accused Salim. He also sent accused Raju Mandal to MAMC for medical examination where doctor handed over two sealed pullandas which were seized vide memo Ex.PW9/A. On 31.1.2006 he alongwith HC Gajender and Ct. Sajjan Singh was investigating this case and after taking accused Raju Mandal alongwith them, they went in search of accused Salim and on the pointing out accused Raju Mandal, accused Salim was overpowered from Meena Bazar, Jama Masjid and was arrested vide arrest memo Ex.PW8/G and his personal search memo Ex.PW8/G1 was prepared. Accused Salim also made disclosure statement Ex.PW8/G2. Accused Salim also got recovered full sleeves baniyan of mehroon colour from his 'thia' at Meena Bazar, Jama Masjid where he used to reside. The baniyan was kept in a pullanda and sealed and seized vide memo Ex.PW8/G3. Accused Salim also pointed out the place of occurrence. Crime team was summoned which inspected the spot and also got the spot photographed. Accused Salim also got recovered pieces of cement containing blood 481 stains and some papers containing blood stains which were kept in a green colour polythene and pullanda was prepared and sealed with the seal of SN and seized vide memo Ex.PW8/G4. Accused Salim was got medically examined at MAMC and after the medical examination, the doctor handed over two sealed pullandas which were seized vide memo Ex.PW8/G5.

27. PW-20 SI Shambhu Nath has further stated that on 13.2.2006, at the instance of child victim, he prepared site plan Ex.PW20/B of the place where jhuggi of the child victim was situated and another site plan Ex.PW20/C of the place of occurrence. On 17.2.2006 the child victim was sent for medical examination to ascertain her bony age and reports Ex.PW17/A and B were obtained. He also sent the case property to FSL, Rohini and later on obtained the reports Ex.PW14/A and B and filed the same in the Court. On 20.3.2006 statement under Sec.164 CrPC of the child victim was got recorded. He has identified the case property i.e. the clothes of the accused persons seized by him in this case as Ex.P3/1, Ex.P3/2, Ex.P4/1, Ex.P4/2, Ex.P5, Ex.P6 (colly) and Ex.P7.

28. On behalf of State, it has been submitted by Sh. S.C. Sharma, Addl. PP that the child victim has fully supported the case of prosecution and identified the accused persons to be the same who took her to a deserted place and committed rape on 482 her. It has also been contended that this being a case of gang rape, it is not necessary that all the accused persons must have committed the rape and all the accused persons are liable for the rape being committed by accused Shakeel, Salim and Raju. It has also been contended that taking into consideration that the child victim was a girl aged about 7-8 years and all the accused persons were known to her prior to the incident, there cannot be any dispute about the identity of the accused persons and all of them are liable to be convicted for kidnapping the child victim and also for the gang rape.

29. On behalf of accused Shakeel, Sh. B.D. Sharma, Advocate has submitted that this accused has been falsely implicated in this case and statement of child victim regarding the persons who committed the rape is full of contradictions. It has been further contended that the blood of victim was not found on the clothes of accused Shakeel which were removed in the hospital itself as clear from the FSL report and the uncorroborated testimony of the child victim is not sufficient to base the conviction of this accused. Ld. Defence counsel has prayed for acquittal of this accused.

30. On behalf of remaining accused persons, it has been submitted by Ms. Bindiya Malhotra, Amicus Curaie that accused persons have been falsely implicated in this case for the reason 483 that they were friends of Tarannum, elder sister of the child victim who was staying with these boys and not at her home. It has been contended that it is not a case of gang rape as even in the MLC, the doctor has mentioned that as per patient, she was raped by one Shakeel and if it is so, then there is no question of the rape being committed by three persons as stated by her before the Court. Ld. Defence counsel has pointed out various discrepancies appearing in the statement of child victim and contended that the same is sufficient to treat her statement as untrustworthy. It has also been contended that even the testimony of her father, uncle and sister is not trustworthy as from their testimony it can be made out that father of child victim was not at home at that time and even her uncle was not present at the home rather he was called by her sister Tabassum for taking her to hospital. She has prayed for acquittal of the accused persons.

31. I have carefully considered the rival contentions. The prosecutrix in this case is a child aged about 7-8 years. The complaint Ex.PW18/A has been lodged by her elder sister Tabassum, on the basis of reply given by the child victim as to how her clothes were having blood to which the child victim has replied that Shakeel and Akash offered to give her biscuit and took her in a rickshaw to Feroz Shah Kotla and in a deserted 484 place, Shakeel raped her. Complainant checked the private part of the child victim and noticed bleeding there. Then she alongwith her 'chacha' Mohd. Intezar took her to LNJP hospital where on the basis of information received from Duty Constable, SI Shambhu Nath reached. As the child victim was admitted in Gynae Emergency, statement of her elder sister Tabassum was recorded about the occurrence on the basis of which FIR under Sec.363/376/34 IPC was registered. When complainant Tabassum was examined in the Court as PW-18, she has stated that on 27.1.206, her sister i.e. the child victim was playing near their house and when she returned at about 7.30 pm, Tabassum saw blood on her clothes and on inquiry by her, the child informed that she was taken in a rickshaw to Feroz Shah Kotla ground by Shakeel and Aaksh on the pretext of giving biscuit and that Shakeel and Akash did 'galat kaam' i.e. rape on her. She informed the incident to her uncle and parents and as the child victim was bleeding from her private part, she took her to LNJP hospital. During cross examination, she has stated that at that time, no other family member was at home. Her uncle Mohd. Intezar was residing near their house and that the child victim became unconscious after sometime in the hospital. She has stated that she did not personally know Akash and Shakeel as they never visited their house.

485

32. So far as statement of child victim is concerned, she has stated that her sister Tarannum stays at Jama Masjid and not at home and that she was taken by Raju, Shakeel and Akash to a jhuggi in a rickshaw. Accused Raju and Shakeel committed rape on her. She stated that third boy also committed rape but she did not remember his name and after seeing accused Salim, initially she stated that he did not committed rape on her but again said that Salim committed rape on her and thereafter she was brought in a rickshaw and left near her house. She has stated that she knew all the accused persons before the incident and when she reached home, she narrated all the facts to her sister Tabassum. She was taken to hospital by Tabassum and her uncle where she was medically examined and her blood stained clothes were seized. She also made statement before the Magistrate which is Ex.PW1/A. During cross examination by State, she admitted all the suggestions given by ld. Addl. PP regarding this occurrence and that she was taken by Raju and Salim except regarding identification of Robin Mandal before the IO on 13.3.2006. Accused Robin Mandal stands discharged in this case. During cross examination by ld. Defence counsels, she has admitted that her sister Tarannum was advised by her sister Tabassum and her father not to roam with boys and because of her behaviour, her father and sister have no liking for her as she even did not stay at 486 home. She has admitted that whenever Tarannum brought her friends Raju and Salim to their house, there was a quarrel on this issue. She has stated that when she was taken to the jungle, it took sufficient time to reach there and when she was taken in rickshaw, on the way Shakeel, Akash and Siddiqui met them and that when she returned from jungle, her clothes were blood soaked and on seeing, her father started giving beating to her as he could not see the blood. She narrated the entire incident to Tabassum who took her to the hospital.

33. As per statement of Pw-5 Sh. Nizamuddin, father of the complainant and the child victim, when the child victim, returned home, her clothes were blood soaked and on being asked by Tabassum, she named Raju, Salim and Shakeel to be the person who committed rape on her and then his daughter Tabassum and his brother Intezar took the child victim to LNJP Hospital for treatment. As per PW-6 Mohd. Intezar who accompanied Tabassum to the hospital, the child victim was very nervous and did not say anything and after sometime, she told that 'mere saath galat kaam hua hai' and Akash and Shakeel had taken her to Kotla ground and Akash had done 'galat kaam' with her. She also mentioned 2-3 names and then he accompanied Tabassum and took the child victim to hospital. On the way, the child victim became unconscious. During cross 487 examination by State, he admitted that the child victim had told that Akash and Shakeel had taken her by tempting to give biscuit and Shakeel had committed rape on her. Thus, it can be seen that there do appear contradictions in the testimony of material prosecution witnesses including the child victim.

34. The question that arises for consideration is as upto what extent, the testimony of these material prosecution witnesses can be believed. In the instant case, this Court cannot ignore the fact that the rape victim was a child aged about 7-8 years. When she came home, she was very nervous as explained by her uncle PW-6 Mohd. Intezar. At that time, her mental condition could not have been such as to falsely implicate innocent persons. At the very outset, she mentioned the names of the persons who took her from Mool chand Basti where her jhuggi is situated, as Shakeel and Akash, on the pretext of giving biscuit to her. It has come in the cross examination of child victim that whenever she went to meet her sister Tarannum at Jama Masjid, her friends used to give her biscuit, toffee, chocolates etc. and also give her ride on rickshaw. So it was not uncommon for her to move with the friends of her sister Tarannum in a rickshaw for getting biscuit, toffee, chocolates etc. She has admitted that she knew friends of Trannum by name, hence she could not be confused about the names of the 488 persons who took her from Mool Chand Basti where she was staying. In the complaint, role of accused Akash is only to the extent that he was with Shakeel when she was taken for giving biscuit. But thereafter the complainant as well as the child victim are silent as to whether Akash had also gone upto the deserted place where rape was committed by Shakeel and whether he was also with Shakeel when she was dropped near her jhuggi or whether he was standing as a guard while Shakeel was committing rape on her. In the MLC prepared at Gynae Casualty at LNJP hospital at 9.30 pm, it is mentioned that 'K' (name of the child victim withheld) brought by police to gynae casualty on 27.1.2006 at 9.30 pm with alleged history of sexual assault by one Shakeel. She told that she was taken to buy biscuits, then sexually assaulted her and beat her. She was referred to Gynae Casualty by CMO, LNJP hospital where the doctor has written the above history. At that time, the patient was conscious and it is also written on the MLC that she was not allowing examination. Thus, it is clear that she did not become unconscious on the way nor gained consciousness next day as stated by her sister PW-18 Ms. Tabassum. The question arises that had it been a case of gang rape or rape by three persons as claimed by the child victim before the Court, the history would have been given by the patient or her relative of allegedly being 489 raped by Shakeel and two-three other persons. The rukka has been prepared on the basis of statement of Tabassum when the child victim was admitted in Gynae Emergency. At at that time, Tabassum also could not be in a state of mind so as to falsely implicate anyone. She mentioned only the name of Shakeel who committed rape on the child victim which she came to know when she questioned the child victim as to how blood appeared on her clothes. Merely because the blood stains were not found on the clothes of accused Shakeel, is no ground to exonerate him for the reason that offence was committed on 27.1.2006 whereas he was arrested in the evening of 29.1.2006.

35. The contention of ld. Defence counsel is that in view of the serious discrepancies in the statement of child victim, she is wholly unreliable witness and on the basis of her testimony, conviction cannot be based. On behalf of State, it has been contended that the victim in this case is a child of tender age i.e. 7-8 years old and in the circumstances, in which she was put, discrepancies are bound to appear unless she is tutored and that the version of the victim is natural and the discrepancies appearing in her statement can be ignored. Now it is to be considered whether the testimony of the child victim which is having material discrepancies on how she was taken, by whom she was taken and who had committed rape on her, can form 490 basis of the conviction of accused persons. In the case Bijoy Singh and Anr. Vs. State of Bihar 2003 SCC (Cri) 1093, the Apex Court has held that when a part of the evidence of a witness is found to be unreliable, Court should scrutinise the remaining part cautiously and if the same is found trustworthy and the basis of the prosecution case is found intact, the same can be accepted.

36. In the latest case Jayaseelan Vs. State of Tamil Nadu, 2009 III AD (SC) 136, the Apex Court has held that even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, his conviction can be maintained and that while normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. In the para 5 of the judgment, it was held as under :

"5. Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by PW-1 to a large extent to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of 'falsus in uno falsus in omnibus' (false in one thing, false in everything). This plea is clearly untenable.

Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, his conviction can be maintained. It is the duty of the Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient, or to be not wholly credible. Falsity of material particular would not ruin it from the beginning to end. The maxim 'falsus in uno falsus in omnibus' has no application in India and the witness or witnesses cannot be branded as liar(s). The maxim 'falsus in uno falsus in omnibus' has not received general acceptance nor has this 491 maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Alli Vs. The State of Uttar Pradesh [AIR 1957 SC 366]). In a given case, it is always open to a Court to differentiate accused who had been acquitted from those who were convicted where there are a number of accused persons. (See Gurucharan Singh & Anr. Vs. State of Punjab [AIR 1956 SC 460]). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and Anr. Vs. The State of Madhya Pradesh [1972 (3) SCC 751] and Ugar Ahir and Ors Vs. The State of Bihar [AIR 1965 SC 277]). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricable mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel Vs. State of Madhya Pradesh [AIR 1954 SC 15] and Balaka Singh and Ors Vs. The State of Punjab [ 1975 (4) SCC 511]). As observed by this Court in State of Rajasthan Vs. Smt. Kalki and Anr. 492

[1981 (2) SCC 752], normal discrepancies is evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted in Krishna Mochi and Ors. Vs. State of Bihar etc. [2002 (6) SCC 81] and in Sucha Singh Vs. State of Punjab [2003 (7) SCC 643]. It was further illuminated in the Zahira H. Sheikh Vs. State of Gujarat [2004 (4) SCC 158], Ram Udgar Singh Vs. State of Bihar [2004 (10) SCC 443], Gorle S. Naidu Vs. State of Andhra Pradesh [2003 (12) SCC 449], Gubbala Venugopalswamy Vs. State of Andhra Pradesh [2004 (10) SCC 120] and in Syed Ibrahim Vs. State of A.P. [2006 (10) SCC 601]."

37. In the instant case, name of accused Shakeel appears in the complaint, in the statement of child victim recorded under Sec.161 CrPC as well as under Sec.164 CrPC. Even in the Court she has named and identified him as the person who committed rape. It is not in dispute that accused persons are friend of Tarannum, elder sister of the child victim, hence there is no doubt about the identity as the child victim knew all the accused persons including Shakeel much prior to the date of incident and Shakeel was named in FIR to be the person who committed rape. In the case Thulia Kali Vs. The State of Tamil Nadu AIR 1973 SC 501, in para 12, the Apex Court has held as under :-

"12. First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the 493 trial. The importance of the above report can hardly be over estimated from the stand-point of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence."

38. In the instant case, the FIR has been lodged promptly after the admission of the child victim in LNJP hospital. In the complaint, accused Shakeel has been named to be the person stated to have committed rape on the child victim. Thus, so far as involvement of accused Shakeel is concerned, the statement of child victim is consistent that Shakeel had committed rape on her. This part of the statement stands corroborated by the complainant Tabassum and is also established from the history given to the doctor in Gynae Casualty and noted by her on the MLC. No doubt, there are material discrepancies in the statement of child victim as to who had taken her and the persons who committed rape on her but these discrepancies cannot be made ground to acquit accused Shakel and her statement that she was taken by Shakeel to a deserted area and raped there, is truthful and inspiring confidence. In the case Uma Shankar versus State 2007 Crl.L.J. 500 the accused, the neighbour of the victim, allegedly committed rape on a minor girl aged about 5 years. In that case also plea was taken by the accused of false implication due to business rivalry as well as 494 discrepancies in the statement of prosecution witnesses and uncorroborated testimony of the child victim. While rejecting the contentions of the appellant/convict, Hon'ble Mr. Justice J.M. Malik has held as under :-

"...6. The arguments advanced by the learned counsel for the appellant lack conviction. These are minor, small and insignificant contradictions. It must be borne in mind that human memory is vicissitudinary. Small contradictions are likely to happen after lapse of this much time. It must be borne in mind that in this country many people are fond of drawing a long bow as Shatrughan Sharma deposed that his daughter remained unconscious for two days. No significance is to be attached with such like exaggerations. It must be recalled that his daughter was raped and therefore his endeavour would not be leave any stone unturned to see that the culprit stands adequately punished. In State of Maharashtra v. Jag Mohan Singh Kuldeep Singh Anand and Co. 2004 (VIII) A.D. 381 : (2004 Cri LJ 4254) (SC) it was held that there may be some exaggeration of the version of the incident by the complainant as she said that she was given hundred blows. Such exaggeration does not falsify the happening of the alleged incident. In the case of State of Himachal Pradesh v. Asha Ram 2005 (X) AD SC 255 : (2006 Cri.LJ 139) the accused was sentenced to life imprisonment for raping his own five years daughter. It was held that minor or insignificant discrepancies should be ignored. In Surendera Singh v. State of Haryana 2006 (1) JT (SC) 645, it was held that it is well settled principle of Law that every discrepancy in the witness could not be treated as fatal to the prosecution case. The discrepancy which does not affect the prosecution case materially, does not create infirmity.
7. It is well settled that corroboration is not the sine qua non for conviction in a rape case (see Dinesh alias Buddha v. State of Rajasthan, 2006 (3) JT (SC) 66 : (2006 Cri LJ 1679) and Rameshwar v. State of Rajasthan, AIR 1952 SC 54 : (1952 Cri LJ 547).

39. Now reverting to the facts of the present case, I am conscious of the fact that victim is child of tender age being 495 about eight years only but there is no hard and fast rule that child witness can never be relied upon. Rather child witness is more innocent and is likely to speak truth. It is in evidence that the child victim narrated the incident to her sister just on her asking and in the form of narration. Her statement can be safely relied as all the necessary precautions have been taken in the present case while recording her statements. In the case Jito Vs. State of H.P., 1991 (2) CC Cases 481 (HC), in para 5 and 16 of the judgment, it was held as under :-

"5. Perusal of the statement of this witness evidences that she has given a truthful and convincing account of the incident. Her version is quite natural. Moreover, it cannot be expected from a witness of this age that even minor details, though important, should also be completely in tune with the statement of other witnesses. It is clear from her version that the accused had been identified. She knew him before, his family and his movements. On the day of the incident, she again saw him for a sufficient long time and due to her tender age, she could not put up resistance except raising an alarm which also appears to have been stopped by the accused by closing her mouth with his hand.
"16. The next contention relates to discrepancies in the statements of the prosecutrix (PW-6) and her mother Smt. Kamla (PW-11). The discrepancies are of very minor nature. They do not hit the basic case. The prosecutrix is of tender age, her mother is illiterate and so is the father. Variations are bound to occur in these circumstances and with the passage of time. Their statements would be dubed parrot like in the absence of these minor discrepancies, which in my opinion, ae bound to occur in a genuine, straightforward and truthful account of an incident."

40. Again it is true that there is some confusion regarding names of accused in the statement of prosecutrix under Sec.161 496 CrPC, under Sec.164 CrPC and statement in trial. She has named some persons in one statement, omitted certain names out of those in the subsequent statement and added name of new persons. But firstly those names are confusing and resembling. Most of the accused have more than one name and they are described as alias. At the same time, sight cannot be lost of the fact that standard of assessing statement of child witness cannot be same as that of a mature witness. Laxity has to be given for her immaturity, power to retain things and reproduce them. Lastly name of one of accused Shakeel is there in all statements. So statement against him can be safely believed.

41. The child victim was a very young girl and trusted accused Shakeel as he was friend of her sister and therefore she knew him to be the person who would give her some toffee, biscuit etc. This small temptation of a child who is from a very poor family, proved disastrous for her so much so that she suffered 2o perineal tear. The statement of child victim that rape was committed by accused Shakeel remained consistent right from the stage of informing her sister till recording of her testimony by the Court. Even when her MLC was prepared in Gynae Casualty, she named one Shakeel to be the person who sexually assaulted her. So the name of Shakeel not only appear at the first stage but even before the Court, she identified 497 accused Shakeel to be the person who committed rape on her. No doubt, she named other accused persons also but her testimony qua other accused persons is not reliable for the reasons given above. The testimony of the child victim to the extent that it was accused Shakeel who had taken her to a deserted place on the pretext of giving biscuit and then committed rape on her is inspiring confidence and even her sister Tabassum, the complainant has also corroborated the testimony of child victim that on being asked, she informed that accused Shakeel had committed rape on her. There was no motive for an innocent girl aged about 7-8 years to falsely implicate accused Shakeel in this case. Her physical condition at the time when she was brought to Gyane Casualty speaks the physical and mental trauma under which the child victim had undergone at the hands of accused Shakeel whom she trusted being friend of her sister Tarannum. Thus, the statement of the child victim against accused Shakeel is sufficient to prove beyond reasonable doubt that it was accused Shakeel who had taken her with intention to commit illicit intercourse with her and after taking her to a deserted area, committed rape on her.

42. So far as accused Mohd. Azibullah @ Akash is concerned, the child victim had specifically stated that Akash had not committed rape on her. She has also nowhere stated that 498 Akash accompanied Shakeel upto deserted area where rape was committed on her or that he was standing as guard when rape was committed by Shakeel. It is not in her statement that when she returned home, Akash was also there. In the circumstances, I find that merely because Akash happens to be present with Shakeel when she was taken for buying biscuit for her, is not sufficient to convict accused Akash @ Mohd. Azibullah for the offence complained of.

43. So far as accused Mohd. Siddiqui, Raju Kumar Mandal and Salim are concerned, the statement of child victim regarding their role is wavering. Accused Raju Kumar Mandal and Salim have been arrested after the arrest of accused Shakeel, Akash, Robin Mandal and Mohd. Siddiqui. Accused Akash and Shakeel were named in the FIR but no blood has been found on their clothes nor they led the police party to the spot and were sent to judicial custody immediately after their arrest. Accused Raju Kumar who was neither named in the complaint nor even as per MLC committed the rape, was arrested and at his instance, accused Salim was arrested. The report of DNA is in the nature of circumstantial evidence only. It is an opinion which can never take place as active proof. It is needless to mention that opinion of an expert is weak type of evidence unless it finds corroboration. At this stage, it may be recollected that Salim and 499 Raju, on whose clothes blood stains have been detected in DNA, were not named as rapists in the initial statement by the victim before her sister, the complainant as well as before the doctor. It is pertinent to mention that the blood stains have been found on baniyan and T-shirt of these accused persons where it is unusual to have blood stains in a rape case. Things could have been understood had it been a case of injury on other parts of the body in which event the blood stains could be found on upper clothes. The evidence adduced against these accused persons namely Mohd. Siddiqui, Raju Kumar Mandal and Salim being insufficient to prove their guilty, they deserve to be given benefit of doubt, hence they are acquitted of the charge.

44. In view of above discussion, accused Mohd. Siddiqui, Mohd. Azibullah @ Akash, Raju Kumar Mandal and Salim are acquitted of the charge. Accused Shakeel is held guilty for the offence punishable under Sec.366 IPC and also for the offence punishable under Sec.376(2)(f) IPC (age of victim being under 12 years) and convicted accordingly.


Announced in the open Court

27.3.2009                             ( PRATIBHA RANI )
                                      ASJ-01(Central)/Delhi




                                500
         IN THE COURT OF SMT. PRATIBHA RANI,
         ADDL. SESSIONS JUDGE-01 (CENTRAL),
              TIS HAZARI COURTS, DELHI


SC No.267/07

State                Vs        Mohd. Shakeel,
                               S/o Sh. Mohd. Zaheer,
                               R/o Village Bachhar Pur,
                               PS Poopri, P.O. : Nanpur,
                               District Sitamarhi, Bihar

                               FIR No.69/06
                               U/S 366/376(2)(f) IPC
                               PS : Darya Ganj

                               Arguments heard on : 30.3.09
                               Order pronounced on : 31.3.09

                              ***

ORDER ON SENTENCE

I have heard the convict Shakeel and his counsel Sh. B.D. Sharma, Advocate on the point of sentence. Sh. S.C. Sharma, Addl. PP has also made submissions on behalf of State.

2. On behalf of convict, Sh. B.D. Sharma, Advocate has submitted that the convict is already in custody for more than three years, he is the only bread earner of his aged parents and his sisters are of marriageable age, hence taking a lenient view, he may be released on probation or for the period already undergone by him in custody. Ld. Counsel for the convict has relied upon Slok Kumar & Ors Vs. The State 1009 (1) JCC 27, 501 Chhanni Vs. State of Uttar Pradesh 2006 (3) RCR (Criminal) 753, Roshanali Birhanali Syed Vs. State of Gujarat AIR 1982 SC 784 (1) and Daljit Singh & Ors Vs. State of Punjab through Secretary Home 2006 VI AD (SC) 619 in support of his contentions. The convict himself has submitted in writing praying for mercy that he was in love with Tarannum, elder sister of the child victim and wanted to marry her which was not acceptable to the father of the victim and due to this reason, Tarannum also set herself on fire and remained admitted in hospital for 10 days and immediately thereafter this occurrence took place and he was falsely implicated by the family of the child victim in this case. It is also mentioned in the written submissions that taking into consideration the condition of his aged parents and that even in custody the complainant and her parents threatened him in Jail which fact can be verified and that he be dealt with lenient view.

3. In the instant case, when the child victim and her sister, father and uncle appeared in the witness box, no question about the love affair with Tarannum and proposal of marriage by this convict was put to complainant, her father or uncle when they appeared as prosecution witnesses. The probability of complainant going to the Jail to threaten the convict, who is in confinement since his arrest, seems to be remote. The family 502 circumstances mentioned in the written submissions are such that in almost all the cases such type of plea is taken.

4. In the case in hand, undisputedly the convict and his other associates were friend of Tarannum, elder sister of the child victim aged about 7-8 years. The convict not only betrayed the trust deposed in him by the child victim but also left such a scar on her body and mind that throughout her life she may find it difficult to trust any male relation and feel secure in his presence. In the case State of Punjab Vs. Gurmit Singh & Ors AIR 1996 SC 1393, the Apex Court, in para 20 of the judgment, has observed as under : -

"20. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female.

5. In the various recent judgments Hon'ble Supreme Court had taken a very serious view in the cases where rapists were let off by awarding lesser sentence or taking a lenient view. The Apex Court has observed that "Once a person is convicted for an offence of rape, he should be treated with a heavy hand. 503 An undeserved indulgence or liberal attitude in not awarding adequate sentence in such cases would amount to allowing or even to encouraging 'potential criminals'."

6. Recalling several of its own judgments exhorting judges to "punish rapists in severest terms" as also the stringent rape laws, observed that there is little doubt that society needed 'socially-sensitized judges' to deal 'sternly and severely' with rapists to go with the stringent penal laws. "A socially- sensitized judge is a better armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and complicates provisos."

7. In the instant case, the child victim being under 12 years of age at the time of rape, the offence being covered under Sec.376(2)(f) IPC, the minimum sentence provided being not less than 10 years which may extend to life imprisonment, the prayer of convict that he be enlarged on probation or sentenced for the period already undergone by him is not tenable in eyes of law. In the facts and circumstances of the case, convict Shakeel is sentenced to rigorous imprisonment for 5 years and to pay a fine of Rs.2,000/- for the offence punishable under Sec.366 IPC. In default of payment of fine, he shall undergo simple imprisonment for one month. Convict Shakeel is also sentenced to undergo rigorous imprisonment for 10 years and to pay a fine 504 of Rs.3,000/- for the offence punishable under Sec.376(2)(f) IPC. In default of payment of fine, he shall undergo simple imprisonment for three months. Both the sentences shall run concurrently. The period of detention already undergone by the convict during investigation/trial of the case shall be set off under Sec. 428 CrPC. Case property shall be confiscated to the State after the expiry of period of appeal, if any. File be consigned to Record Room.

Announced in the open Court 31.3.2009 ( PRATIBHA RANI ) ASJ-01(Central)/Delhi 505 IN THE COURT OF SMT. PRATIBHA RANI, ASJ-01 (CENTRAL), TIS HAZARI COURTS, DELHI SC No.175/07 State Vs Suleman @ Rohit S/o Sh. Mohd Umar R/o Kot Mohalla, Khurja City, PS Kotwali, Distt. Bullandsher UP.

FIR No.97/04 U/s : 307/34/397/398 IPC PS : HNRS Date of Institution : 04.12.04 Arguments heard on : 30.3.09 Order pronounced on : 31.3.09 *** JUDGMENT Case FIR No.97/04 was registered on the basis of statement made by Smt. Gangajali R/o Gandhi Camp, Okhla, New Delhi. As per the complainant, she alongwith her husband reside at S-36/147, Gandhi Camp, Okhla Mandi, New Delhi and her husband worked in a kothi in Friends Colony. She had visited her husband only about 20-25 days prior to this incident. On 23.8.2004 at about 7.30 PM when she had gone to ease herself near Okhla Railway Station, two boys aged about 20-25 years came and tried to drag her from her arm. When she objected, they threatened to shoot her. She raised alarm and in the mean time one boy fired aiming towards her and the bullet 506 hit on her shoulder and those two boys ran away from there. Her negihbourers informed the police and she was removed to hospital in the police vehicle. She stated that she could identify the two boys who fired at her. During investigation, on the basis of information received on 6.10.2004, SI Giriraj apprehended the accused from near Modi Mills fly over, Okhla and on search one country made pistol of .315 bore and two live cartridges were recovered from the accused. Accused was arrested and his disclosure statement was also recorded. On the basis of disclosure statement, accused also got recovered one fired cartridge from near pole No.1526/24G which was also seized. After completion of investigation charge sheet was filed.

2. After compliance of provisions of Sec. 207 CrPC, the case was committed to the Court of Sessions.

3. After hearing on the point of charge, accused Suleman @ Rohit was charged on 25.2.2005 for the offence punishable under Sec.307 r/w 34 IPC to which he pleaded not guilty and claimed trial.

4. Prosecution has examined ten witnesses in support of its case. All the incriminating evidence appearing against the accused was put to him during his statement under Sec. 313 CrPC to enable him to explain the same. Accused has denied the case of prosecution and stated that he has been falsely implicated 507 in this case. On 7.10.2004 at about 12.45 am his father had sent a telegram to Commissioner of Police regarding his lifting by 10-15 police officials of Special Cell. Accused has also examined his father in his defence as DW-1.

5. I have heard ld. Addl. PP for the State and ld. Counsel for the accused and also carefully gone through the record.

6. PW-1 Smt. Gangajali is the complainant/injured. She did not remember the date, month and year, but she stated that it was month of 'Sawan' of previous year (her statement was recorded on 2.5.2005) she was sitting outside her house and her husband had gone to attend the call of nature at some distance from her house. Two persons came there and caught hold of her from her both arms. She raised alarm, however, those two boys asked her not to raise alarm otherwise they would kill her. She further stated that accused Suleman was one of those two boys. She has also stated that when she raised alarm, accused Suleman fired at her and the bullet hit on her left arm near the shoulder and thereafter both those boys ran away. Her husband and some neighbourers came their and informed the police. Police took her to the hospital where her statement Ex.PW1/A was recorded. She remained admitted in the hospital for two to four days. Later on she was called in the PS where she identified accused Suleman and in her presence he also got recovered the fired 508 cartridge from near a 'Shetut' tree which was seized by the police. During cross examination she stated that before appearing as a witness in the witness box, police officials met her outside the Court and told her the statement which she was to make in the Court and also to identify the person who was having mark over his face as an accused. There is Court observation that accused Suleman @ Rohit has marks on the right side of his face.

7. PW2 Ct. Ashok has stated that on 29.10.2004 he took three sealed parcels from MHC(M) and deposited them in FSL Rohini vide RC No.108/04 and after depositing the same handed over the copy of RC to MHC(M). He has also stated that so long the pullandas remained in his custody, they remained intact.

8. PW3 HC Om Parkash was working as Duty Officer on the relevant date and he has proved the copy of FIR as Ex.PW3/A.

9. PW4 Ct. Kavinder Kumar has stated that on 17.10.2004 he remained associated with the investigation of this case. On that day he alongwth IO, complainant and accused Suleman reached the place of occurrence and the accused got recovered one empty cartridge Ex.P1 which was lying hidden beneath the earth. He has stated that IO prepared the sketch Ex.PW1/D of that cartridge and seized the same vide seizure 509 memo Ex.PW1/B after sealing the same in a cloth pullanda with the seal of GS.

10. PW5 Dr. Rohini Gupta, Sr. Resident, Deptt. Of Radiology, AIIMS has proved her report as Ex.PW5/A.

11. PW8 SI Rajesh Sharma is the first IO of the case. He has stated that on 23.8.2004 on receipt of DD No.17A he alongwith Ct. Satinder went to AIIMS and collected the MLC of Gangajali. He also recorded her statement Ex.PW1/A and after making his endorsement Ex.PW8/A sent the rukka through Ct. Satender for registration of the case. Thereafter he went to the spot and also searched for the culprits. On 28.8.2004 he prepared site plan Ex.PW8/B at the instance of complainant. He has stated that on 1.9.2004 he met with an accident and further investigation was marked to some other officer.

12. PW10 Ms. Archana Sinha, MM has stated that on 11.10.2004 on the request of IO, she hadgone to Tihar Jail for conducting the TIP of accused Suleman but he refused to take part in the TIP. She has proved TIP proceedings as Ex.PW10/C.

13. PW9 SI Giri Raj has stated that on 20.9.2004 he was posted at PS Nizamuddin Railway Station and the investigation of this case was entrusted to him. On 6.10.2004 at about 11.50 pm an information was received in the PS that the person involved in this occurrence was roaming near Okhla Railway 510 Station and also in possession of illegal arms. This information was recorded vide DD No.20A, copy of which is Ex.PW9/A. The same was entrusted to him by the duty officer. On receipt of DD, he alongwith HC Suresh and Ct. Virender went to Okhla Railway Station and on the pointing out of informer, the accused Suleman was overpowered near Modi Mill Flyover, Okhla. He interrogated the accused and arrested him in this case vide arrest memo Ex.PW6/C and personal search of the accused was also conducted vide memo Ex.PW6/D. He has also stated that on search accused was found in possession of one country made pistol Ex.P2 of 315 bore kept in the left side pant dub and two live cartridges Ex.P3 and P4 were also recovered from the front side right pant pocket. He prepared the sketch Ex.PW6/A of pistol and cartridges and kept the same in pullanda and sealed with the seal of GS, form FSL was also filled in. The pullanda was seized vide seizure memo Ex.PW7/A. He has further stated that disclosure statement Ex.PW6/B of the accused was also recorded and the case property was deposited in the malkhana. PW9 SI Giri Raj has further stated that the accused was produced in the Court and an application Ex.PW9/B for TIP of the accused was moved on 7.10.2004 and on 14.10.2004 accused refused to take part in TIP before the Court of Ms. Archana Sihna, MM, Delhi. He moved an application Ex.PW9/C and 511 collected the copy of TIP proceedings which are Ex.PW9/D. He obtained police remand of the accused on 16.10.2004 and during police remand on 17.10.2004 the accused led the police party and complainant near pole No. 1526/24G, Railway Fencing, Okhla and got recovered one fired cartridge from the ground near a 'Shetoot' tree. He prepared the sketch Ex.PW1/D of the said fired cartridge and kept the same in pullanda, sealed with the seal of GS and seized vide memo Ex.PW1/B. He also seized the earth control from the said place and kept in pullanda and seized vide memo Ex.PW1/C. He has further stated that on 29.10.2004 the exhibits were sent to FSL, Rohini through Ct. Ashok Kumar and later on result Ex.PX and PY were collected.

14. PW6 Ct. Virender Kumar and PW7 HC Suresh remained associated in the investigation with SI Giri Raj. They have also deposed about the arrest of accused Suleman and recovery of country made pistol and two live cartridges from him.

15. I have heard ld. Addl. PP for the State and ld. Counsel for the accused and carefully gone through the record. Ld. Counsel for the accused has contended that the accused has been lifted from his house and later on falsely implicated in this case and the case property has been planted on him.

16. In this case PW1 Smt. Gangajali is the only eye 512 witness to the occurrence. Though during her examination-in- chief she has supported the case of prosecution and stated that accused Suleman had fired shot on her but during her cross examination she has specifically stated that before she appeared as a witness in the witness box, police officials told her that the person whom she has to identify as accused in the Court would be having mark over his face. There is court observation that accused Suleman @ rohit has marks on the right side of his face. Taking into consideration that during cross examination the complainant has not supported the case of prosecution at all and rather stated that whatever she deposed and how she identified the accused in the Court, was only at the instance of police officials who met her outside the Court room. During cross examination even she has not owned the contents of the complaint Ex.PW1/A rather stated that police recorded her statement of its own and obtained her thumb impression thereon. She again said that her statement was read over the statement to her and then she put her thumb mark.

17. In the instant case, the date of occurrence is 23.8.2004. As per the complaint Ex.PW1/A, it was the complainant Gangajali who had gone to ease herself near Okhla Railway Station when the incident took place but when she appeared as PW-1, she has even changed the place of occurrence as during 513 her statement before the Court, she has stated that she was sitting outside her house and her husband had gone to attend the call of nature in jungle. Again said, near a tree at some distance from her house. Then two persons came where she was sitting and they caught hold her arms. When she raised alarm, they threatened to kill her. She raised alarm and the accused fired at her which hit her left arm near shoulder. Accused and his companion ran away and her husband and neighbourer came to the spot and informed the matter to the police. Thus, it is clear that she has shown the place of occurrence to be just outside her house which is not the case of prosecution. Further a bullet has been shown to be recovered from under the earth near a 'Shetoot' tree but the question arises whether it was accused who kept it there. It is in the statement of complainant herself that immediately after firing, the offenders ran away. If it was so then the offender would not have taken the risk to come to the place of occurrence, search the fired bullet and hide it near the place of occurrence. It is also relevant to mention here that police had visited the place of occurrence not only once but many times and even site plan has been prepared after many days. During inspection, the police could not recover the fired bullet and in the circumstances, it is highly improbable that after about two months of occurrence, police would recover the fired 514 bullet from a place which has been searched number of times earlier by different police officers. It is also relevant to mention that complainant has specifically stated that accused was shown to her in the police station. If it was so then accused was justified in refusing to take part in the TIP as that would not have served any purpose. Further in cross examination by ld. Defence counsel, PW-1 Smt. Gangajali has stated that when she was appearing as a witness before the Court, some police officials pointed out to her the person to be identified by her in the Court as well as the statement which she was required to make in the Court. If it was so, then her statement cannot be relied upon about how the occurrence took place, who caused the injuries and whether accused Suleman is the same person who fired at her. It is also relevant to mention here that the arrest memo Ex.PW6/C shows that on 7.10.2004 at 3.00 AM accused Suleman was arrested from Modi Mill Fly Over, Okhla. DW1 Sh. Mohd Umar, father of the accused has stated that on 7.10.2004 he was present in Okhla Mandi where his brother-in- law Shafiq informed him that his son had been taken by the police and his photograph was also taken. He sent a telegram to the Commissioner of Police about lifting of his son. He has also placed on record certified copy of telegram as Ex.DW1/A. Ex.DW1/A shows that it is attested photocopy of the telegram 515 which was attested by Officer Incharge, T.O. Kashmere Gate, Delhi. Perusal of the same shows that it was sent by Mohd Umar, Gali No.3, Mustafabad, Nehru Vihar, 25 Foota Road, Delhi to Commissioner of Police informing that on 7.10.2004 at about 12.45 AM his son Suleman had been taken away by 10-15 police officials of Special Staff without any cause and he had apprehension that he may not be involved in any false case or some serious offence is imposed on him and he prayed for immediate action. This telegram sent by father of the accused also falsifies the story of the prosecution that accused was apprehended from near Modi Mill Flyover, Okhla.

18. In the circumstances, I am of the opinion that prosecution has not been able to prove its case against the accused beyond reasonable doubt. Hence, accused Suleman @ Rohit is acquitted of the charge. Case property shall be confiscated to the State after the expiry of period of appeal, if any. File be consigned to Record Room.

Announced in the open Court.

31.3.2009                            ( PRATIBHA RANI )
                                     ASJ-01(Central)/Delhi




                               516
       IN THE COURT OF SMT. PRATIBHA RANI,

ASJ-01 (Central), TIS HAZARI COURTS, DELHI SC No.197/07 State Vs Allaudin @ Dudhwala @ Kabariwala S/o Sh. Hazai Allah Mehar R/o 3213, Phatak Teliyan, Turkman Gate, Delhi.

FIR No.6/05 U/s : 489B/489C IPC PS : Special Cell Date of Institution : 02.03.05 Arguments heard on : 8.4.09 Order pronounced on : 13.4.09 *** JUDGMENT Accused Allaudin @ Dudhwala @ Kabariwala has been sent to face trial for the offences punishable under Sec. 489B and 489C IPC. In brief the case of the prosecution is that on 3.1.2005 at about 10.45 am ACP Sh. N. Tshering of Special Cell, Bharat Nagar, NFC, New Delhi received a secret information that one Muslim man, aged about 60/65 years was engaged in the business of selling US Dollars in half rate at Mohalla Phatak Teliyan, Turkman Gate, Delhi. ACP called Inspr. C.B. Sharma in his office and informed him about the secret information and also introduced the informer to Inspr. C.B. Sharma. ACP also gave verbal directions to Inspr. C.B. 517 Sharma to take further action in the matter. Inspr. C.B. Sharma recorded the said information vide DD No.16 in the roznamcha and directed the informer to develop the said information and inform him about the same. At about 4.00 PM secret informer again came to the office of Special Cell and informed Inspr. C.B. Sharma that Allaudin @ Dodhwala is indulging in this trade at Phatak Teliyan. The informer also handed over to Inspr. C.B. Sharma half note of Indian currency of the denomination of Rs.10/- having No. 55P-830166 stating that any person can deal for purchase of US Dollars with Allaudin after giving this piece of note to him. Inspr. C.B. Sharma discussed this information with his senior officers and organized a raiding party consisting of SI Hukam Chand, SI Desh Raj, ASI Nirbhey Singh, HC Balraj, Ct. Jagdish and Ct. Dharambir and at about 4.10 PM left the office of Special Cell in government vehicle No. DL-1C-F- 7137 being driven by Ct. Sahib Singh for Turkman Gate, Delhi. At about 4.40 PM Inspr. C.B. Sharma alongwith his staff reached near Ramlilla Ground and requested 4-5 passersby to join the raiding party but none agreed. At about 4.50 PM police party reached Police Bhawan, Asaf Ali Road and parked the vehicle there. Inspr. C.B. Sharma put his initial on the said half piece of Indian Currency note of Rs.10/- and handed over the same to SI Desh Raj to act as a decoy customer and SI Hukam 518 Chand was directed to act as a shadow witness. Secret informer was also sent with them with the direction that in case deal is finalized, he should be informed there. At about 5.15 PM SI Desh Raj, SI Hukam Chand and informer came back and SI Desh Raj and SI Hukam Chand informed Inspr. C.B. Sharma that on the pointing out of informer the said half piece of Rs.10/- was handed over to one person namely Allaudin sitting on a 'Takhat' in front of H. No.3213, Phatak Teliyan who also matched the half currency note with other half portion of that note which was in his pocket. Allaudin also informed them that he had four packets of 100 US Dollars each and that cost of 100 US Dollars is Rs.2200/- and that they had fixed the time at 5.30 PM for purchasing the US Dollars after giving payment. Inspr. C.B. Sharma alongwith his staff reached chowk Phatak Teliyan and there also 4-5 passersby were requested to join the raid but none agreed. Inspr. C.B. Sharma then sent SI Desh Raj (decoy customer) and SI Hukam Chand (shadow witness) to get the US Dollars and he alongwith other staff remained there at the chowk. At about 5.40 PM one person came out of H. No.3213 having one black colour racsin bag in his right hand and sat on the 'Takhat'. SI Desh Raj talked with that man and in the mean time SI Hukam Chand gave the pre-decided signal on which Inspr.C.B. Sharma alongwith his staff came there and 519 apprehended that person whose name was revealed as Allaudin @ Dudhwala @ Kabariwala, R/o 3213, Phatak Teliyan, Turkam Gate, Delhi. On checking, the bag was found containing four packets of US Dollars wrapped in a white polythene and some US Dollars were wrapped in a printed letter pad. In all 397 US Dollars were recovered which were kept in the same polythene and a cloth pullanda was prepared which was sealed with the seal of CBS and seized vide seizure memo. The printed paper on which address of Lahore, Pakistan was printed was also taken into possession after keeping the same in a cloth parcel. Case was got registered at the PS. After the registration of the case further investigation was marked to SI Dinesh Pal who came to the spot and prepared site plan, arrested the accused and also seized the two pieces of Indian currency notes of Rs.10/- from the possession of the accused. During investigation the recovered US Dollars were deposited with Interpol Wing, CBI, Lodhi Road for obtaining the expert opinion from the Embassy of United State of America and later on report was received to the effect that all the 397 US Dollars were counterfeit and of good quality. After completion of investigation accused was sent to face trial.

2. After compliance of provisions of Sec. 207 CrPC, the case was committed to the Court of Sessions. 520

3. After hearing on the point of charge, accused Allaudin @ Dudhwala @ Kabariwala was charged on 1.11.2006 for the offence punishable under Sec.489-B and 489-C IPC to which he pleaded not guilty and claimed trial.

4. Prosecution has examined eight witnesses in support of its case. All the incriminating evidence appearing against the accused was put to him during his statement under Sec. 313 CrPC to enable him to explain the same. Accused has denied the case of prosecution and stated that he was lifted by the police officials of Special Staff from in front of his house and later on falsely implicated in this case and the case property was planted on him. Accused has not led any evidence in his defence.

5. I have heard Sh. S.C. Sharma, ld. Addl. PP for the State and Sh. Ranvir Singh, amicus curaie for the accused and also carefully gone through the record.

6. PW1 ASI Kishan Pal is the Duty Officer and he has proved the copy of FIR as Ex.PW1/A.

7. PW2 ASI Nirbhey Singh has stated that on 3.1.2005 he alongwith Inspr.C.B. Sharma and other staff members went to Phatak Teliyan behind Police Bhawan, Asaf Ali Road, Turkman Gate, Delhi as Inspr. C.B. Sharma was having information regarding selling of counterfeit currency. On 521 reaching the spot accused Allaudin was found sitting on a 'takhat' having racsin bag in his hand and he was apprehended. PW2 has also deposed that on checking, the bag was found containing 397 US Dollars of the denomination of 100 dollar each which were seized. Inspr. C.B. Sharma prepared rukka which he took to PS Special Cell, Lodhi Colony and after getting the case registered came back to the spot and handed over the rukka and copy of FIR to SI Dinesh Pal to whom further investigation was entrusted.

8. PW3 SI Shish Ram has deposed that on 5.1.2005 he alongwith SI Dinesh Pal and accused Allaudin reached House No.3213, Turkman Gate which was under construction and during search of the house nothing incriminating was found. Then accused Allaudin took them to H. No.3220, Ground Floor, Phatak Teliyan from where two passports Ex.PW3/P1 and P2 were recovered from a polythene hanging on the wall which were seized vide memo Ex.PW3/A. One passport was of the accused.

9. PW5 Sh. Mohd Sualaheen has stated that house No.3213, Phatak Teliyan belongs to him and accused Allaudin is his tenant who used to reside there since his birth. He has stated that in the year 2005 he was doing some construction in his house.

522

10. PW4 SI Dinesh Pal has stated that on 3.1.2005 he was posted at Special Cell, Southern Range and after registration of the case FIR no.6/05, further investigation was entrusted to him. On that day, he reached the Chowk Phatak Teliyan, opposite House no.3213, Turkman Gate, Delhi where Inspr. C.B. Sharma alongwith his staff was found present. Inspector C.B. Sharma produced the accused Allaudin before him alongwith the case property and the seizure memo. Thereafter, on the pointing out of Inspector C.B. Sharma, he prepared site plan Ex.PW4/A. He has also stated that Inspector C.B. Sharma produced to him one black colour bag in which the fake currency was kept and he seized that bag vide memo Ex.PW4/B. He took the search of accused and from the right side pocket of his kurta, one currency note of Rs.10/- in two pieces, out of which one piece of currency note was having initial of Inspector C.B. Sharma in English were recovered which was kept in an envelope and sealed with the seal of DP and seized vide memo Ex.PW4/C and seal after use was handed over to SI Hukam Chand. He has further deposed that one pocket diary was also recovered from the right side pocket of his kurta which was also taken into possession vide memo Ex.PW4/D. He has stated that accused was arrested vide arrest memo Ex.PW4/E and his personal search was also conducted vide memo Ex.PW4/F. He recorded the statement of 523 the witnesses of recovery at the office. ASI Nirbhey Singh also handed over to him the original rukka and copy of FIR at the spot. PW4 SI Dinesh Pal has further deposed that on 4.1.2005 the accused was interrogated and his disclosure statement Ex.PW4/G was recorded. The accused was produced before the Court and three days police custody was obtained. On 5.1.2005 the accused was further interrogated and his subsequent disclosure statement Ex.PW4/H was also recorded and in pursuance of the said disclosure statement, the accused got recovered his two passports Ex.PW3/P1 and P2 from house No.3220, Phatak Tehlian, Turkman Gate which were kept in a polythene hanging on the wall and he seized the passports vide memo Ex.PW3/A. He also took the search of house No.3213, Phatak Tehlian, Turkman Gate which was under construction but nothing incriminating was recovered from the said house and a memo Ex.PW3/B to this effect was also prepared. This witness has further deposed that on 20.1.2005 the exhibits were deposited with Interpol Wing, CBI, Lodhi Colony, New Delhi for expert opinion and later on the result Ex.PW4/J was collected. He has identified the bag recovered from the accused as Ex.P1, two pieces of Rs.10/- currency note as Ex.P2 (Colly), pocket diary as Ex.P3.

11. PW8 Inspr. Desh Raj has stated that on 3.1.2005 he 524 was posted as Sub-Inspector in Special Cell, SR, Bharat Nagar, Delhi. On that day at about 4.00 pm, Inspector C.B. Sharma called him and informed that he had received a secret information that one muslim person namely Allaudin, aged about 65 years, residing in the area of Turkman gate was indulging in sale of fake US dollars on half-rate. A raiding party was organised by Inspector C.B. Sharma consisting of him, SI Hukam Chand, ASI Nirbhay Singh, HC Balraj, Ct. Dharambir, Ct. Jagdish and the raiding party left the office at about 4.10 pm in a government vehicle No.DL-1C-F-7137 which was being driven by Ct. Sahib Singh and reached Ramlilla Ground at about 4.40 pm. Inspr. C.B. Sharma requested 4-5 passers-by to join the raiding party but none had agreed and then the vehicle was parked near Asaf Ali Road, Turkman Gate. He was given a half Rs.10/- note bearing No.55P-830166 by Inspector C.B. Sharma after putting his signature in English on the note and he was directed to go to the place of information for a deal. SI Hukam Chand was also directed to act as a shadow witness. He alongwith SI Hukam Chand and informer reached near House No.3213, Phatak Tehlian, Turkman Gate where the informer pointed out towards a person who was sitting on 'takhat' whose name was revealed as Allaudin. He handed over the said half currency note of Rs.10/- to Allaudin who had also taken out one 525 half currency note of Rs.10/- and tallied with that half currency note. He has stated that accused also told that he had four packets of US Dollars of 100 in denomination and the value of one packet of US Dollar of 100 denomination is Rs.2200/- in Indian currency and the time of deal was fixed at 5.30 pm. Thereafter they came back and informed Inspr. C.B. Sharma about the said dealing with the accused. All the members of raiding party were briefed by the Inspector and they all reached Phatak Tehlian at about 5.30 pm. On the way Inspr. C.B. Sharma had asked 4-5 public persons to join the raid but none had agreed and thereafter Inspector sent him and SI Hukam Chand to deal with the accused and other members remained with the Inspector at some distance. SI Hukam Chand was also directed by the Inspector to give signal after finalizing the deal by moving his hand on his head. PW8 has also stated that at about 5.40 pm the accused came from the side of H. No.3213 having a black colour racsin bag in his right hand and sat on the 'takhat' on which he was found sitting earlier. He had a deal with the accused and when the deal was finalized by him, SI Hukam Chand gave pre-decided signal and on receipt of signal, the other team members rushed towards the spot and the accused was overpowered. The bag of the accused was checked which was found containing one white colour polythene which was having 526 four packets of US Dollars and some other dollars were also found wrapped in a paper. On counting, the dollars found to be 397 in number in the form of 100 denomination. The recovered dollars were kept in same polythene and a cloth pullanda was prepared which was sealed with the seal of CBS and seized vide memo Ex.PW6/A, the paper having some address of Pakistan in which also the dollars were kept, was seized separately vide memo Ex.PW6/B. Inspr. C.B. Sharma prepared tehrir and handed over the same to ASI Nirbhey Singh for registration of the case and the further investigation was entrusted to SI Dinesh Pal who was called telephonically by Inspector C.B. Sharma. PW8 has further deposed that SI Dinesh Pal reached the spot and Inspector C.B. Sharma narrated the facts to him and also handed over the case property and the accused to him. On the pointing out of Inspector C.B. Sharma, SI Dinesh Pal prepared the site plan and arrested the accused vide memo Ex.PW4/E and his personal search was conducted vide memo Ex.PW4/F. The disclosure statement Ex.PW4/G of the accused was also recorded by SI Dinesh Pal. The racsin bag was seized vide memo Ex.PW4/B and two piece of currency note of Rs.10/- having the same number, out of which one was having signature of Inspr. CB Sharma, were seized vide memo Ex.PW4/C after keeping the same in pullanda sealed with the seal of DP. Seal after use was 527 handed over to SI Hukam Chand. He has further stated that one pocket diary was also recovered from the right side pocket of kurta worn by the accused on which address of Pakistan was mentioned which was seized vide memo Ex.PW4/D. This witness identified the black colour racsin bag as Ex.P1, two pieces of currency notes of Rs.10/- as Ex.P2 (Colly), pocket diary as Ex.P3, 383 US Dollars of 100 denomination as Ex.P4, 14 US Dollars of 100 denomination as Ex.P5, one letter pad in which 14 US Dollars were wrapped as Ex.P6.

12. PW6 Inspr. Hukam Chand, who was also a member of raiding party and was deputed to act as a shadow witness by Inspr. C.B. Sharma, has also deposed on identical lines.

13. PW7 Sh. C.B. Sharma, retired ACP has deposed that on 3.1.2005 he was posted as Inspector, Special Cell, Bharat Nagar, Delhi. On that day ACP Sh. Tshering called him (PW7) in his office and informed about the information received by him to the effect that one Muslim person resident of Turkman Gate indulged in supplying of US Dollars and also instructed him to take necessary action in the matter. At about 10.50 AM he recorded the said information in daily diary register vide DD No. 16 (Ex.PW7/A) and informer was also asked to develop the information and inform him about the same immediately. At about 4.00 pm informer came to his office and handed over to 528 him half Indian currency note of the denomination of Rs.10/- having No. P-55-83016 and informed that in case this piece of note is handed over to Allauddin, then he would give 100 US Dollars in half price @ Rs.22/- per dollar. He informed about this information to his senior officers and organized a raiding party consisting of SI Desh Raj, SI Hukam Chand, ASI Nirbhey Singh Rana, HC Balraj and other staff and left the office alongwith informer in official vehicle being driven by Ct. Sahib Singh after making departure entry vide DD No.19 (Ex.PW7/B). At about 4.40 PM they reached near Ramlilla ground where he requested 4-5 passersby to join the raiding party after disclosing them about the information but none agreed and left without disclosing their names and addresses. At about 4.50 pm he got the vehicle parked in Delhi Police Bhawan and deployed SI Desh Raj as decoy customer and SI Hukam Chand as shadow witness. He has also stated that after putting his signature on the half piece of Indian Currency note of Rs.10/-, he handed over the same to SI Desh Raj and after giving them necessary directions they were left for the place about which information was received. At about 5.10 PM SI Desh Raj and SI Hukam Chand came back to him and informed that they had a talk with Allauddin about the deal and that he had given 5.30 PM to be the time of deal. On this he again requested 4-5 passersby to join 529 the raiding party but none agreed and left without disclosing their names and addresses. PW7 has further deposed that all the members of raiding party left for the spot and SI Hukam Chand was directed to give signal after finalizing the deal by moving his hand on his head. The other members of the raiding party were also deputed at some distance. After some time he saw accused coming with one black colour bag in his right hand and he sat on a 'takhat' and talked to SI Desh Raj. At about 5.40 pm SI Hukam Chand gave pre-decided signal and on receiving the same, he alongwith other team members rushed towards the spot and overpowered the accused alongwith the bag which was checked and found containing one white colour polythene having four packets of US Dollars i.e. three packets of CB series and one packet of BA series numbering 383 dollars and 14 other dollars were also found wrapped in a paper on which address of Lahore was printed. On counting the total dollars came to 397 in number in the form of 100 denomination which were kept in same polythene and a cloth pullanda was prepared which was sealed with the seal of CBS and seized vide memo Ex.PW6/A. The paper in which 14 dollars were kept, was seized separately vide memo Ex.PW6/B. He prepared tehrir Ex.PW7/C and handed over the same to ASI Nirbhey Singh for registration of the case and further investigation was entrusted to SI Dinesh Pal 530 who was called telephonically him. SI Dinesh Pal reached the spot to whom he narrated the facts and and handed over the case property and the accused to him. SI Dinesh Pal prepared the site plan at his instance. This witness has also identified the case property i.e. black colour racsin bag as Ex.P1, two pieces of currency notes of Rs.10/-, right portion of which bear his signature as Ex.P2 (colly), 383 US Dollars of 100 denomination as Ex.P4, 14 US Dollars of 100 denomination as Ex.P5, and letter pad in which the 14 US Dollars were wrapped as Ex.P6.

14. On behalf of State, it has been submitted by Sh. S.C. Sharma, Ld. Addl. PP that accused was found dealing in fake US dollars which stands proved from the testimony of prosecution witnesses, hence the case against the accused stands proved beyond reasonable doubt and he be convicted.

15. On behalf of accused, Sh. Ranvir Singh, Amicus Curaie has contended that accused has been falsely implicated in this case because of his rivalry with a police informer. It has been contended that in the instant case, accused was shown to have been apprehended from just near his house and that area is very congested having number of shops and houses but not even a single public person has been joined to prove the recovery of fake US dollars from the possession of the accused. It has also been contended that there are material discrepancies in the 531 testimony of prosecution witnesses and the case against the accused does not stand proved beyond reasonable doubt. Ld. Counsel for the accused has prayed for acquittal of the accused.

16. I have carefully considered the testimony of prosecution witnesses. I find that there are material discrepancies in their testimony which goes to the root of the case and make their testimony untrustworthy. To start with, I take up the statement of PW-1 ASI Kishan Pal who recorded the FIR. As per his version, rukka was received at 8.15 pm, it took him 50 minutes in writing the same and he handed over the rukka and copy of FIR to ASI Nirbhey Singh, who brought the rukka, at about 9.50 pm. As per PW-2 ASI Nirbhey Singh who was member of the raiding party and had taken the rukka to police station, he left the spot with rukka at 7.15 pm and returned to the spot at about 11.15 pm and that he had gone to the police station by TSR for which he paid Rs.50/- as fare for going to police station and return to the spot. It means that he has taken almost one hour in reaching the PS and about 1½ hour in reaching the spot which does not include the time spent by him in the PS when Duty Officer was recording the FIR. He has also stated that he met SI Dinesh Pal for the first time when rukka was handed over to him which can only be after 11.15 pm. If the statement of PW-4 SI Dinesh Pal, the second IO is considered, 532 then as per his version, after registration of the case FIR No.6/05, investigation was entrusted to him. He reached the spot where Inspector C.B. Sharma produced the accused and the documents and he conducted the further proceedings.

17. In his cross examination, he admits that he received the copy of FIR at about 11.00 or 11.15 pm but states that he had reached the spot at about 7.30 pm on receiving the information from Duty Officer, Special Cell that further investigation of this case has been marked to him. He has also stated that rukka was taken by ASI Nirbhey Singh who was just leaving the spot with rukka at that time. Thus, as per PW-4 SI Dinesh Pal, ASI Nirbhey Singh was still present at the spot when he reached there. As per PW-7 Inspector C.B. Sharma, rukka was being concluded when he called SI Dinesh Pal. The prosecution has not placed on record any entry vide which Inspector C.B. Sharma directed that further investigation be assigned to SI Dinesh Pal or that he should be sent to the spot even before rukka could be sent by him for registration of the FIR. There is also no departure entry by SI Dinesh Pal that he was leaving for the spot as per instructions of Inspector C.B. Sharma. As per PW-7 Inspector C.B. Sharma, he left the spot at 8.00 pm but PW-6 Inspector Hukam chand has stated that SI Dinesh Pal came to the spot at abut 7.30 pm and left the spot alongwith all 533 the team members at about 10.00 pm. If it was so, then to whom ASI Nirbhey Singh handed over the rukka and copy of FIR at 11.00 or 11.15 pm, remains unanswered. It also cannot be ignored that no independent public person was sent as decoy customer. It is also not explained on record as to how and in what capacity, the secret informer came in possession of half portion of currency note of Rs.10/- which was to be used for dealing. It has come in the statement of PW-8 Inspector Des Raj who acted as decoy customer that when he handed over the half portion of currency note of Rs.10/- to accused Allaudin, accused also took out half portion of currency note and tallied with the half portion given to him. This part of the statement is unbelievable for the reason that signature of Inspector C.B. Sharma on the half portion of the currency note is so prominent that mere seeing that half portion could raise suspicion in the mind of accused and there was no question of further dealing. It is relevant to mention that in the statement of Inspector Des Raj or Inspector Hukam Chand, there is no mention about the deal or what conversation took place between them and the accused. It is surprising that a stranger comes to accused, gives him the half portion of currency note and without satisfying about the genuineness of the customer, accused would simply say that he had four packets of US dollars and that he would change the 534 Indian currency into US dollars and fix the time after a few minutes i.e. 5.30 pm. Again if the testimony of Inspector Hukam chand and Inspector Des Raj as to what happened at 5.30 pm is considered, there is only one line in the statement of PW-8 Inspector Des Raj that he had dealt with the accused and when the deal was finalised, SI Hukam Chand gave the pre-decided signal and the other team members rushed towards the spot and apprehended the accused. What was the deal entered into by PW-8 Inspector Des Raj with the accused is not stated by him or by Inspector Hukam Chand. It is surprising that the entire team remained present at the spot right from 4.40 pm till about 11.00/11.15 pm when the rukka was stated to have been handed over to SI Dinesh Pal, despite the area being very congested with number of residential and commercial units, neither the public person would gather nor the local police would come to know about the catch by the officials of Special Cell. When it has come in the testimony of PW-6 Inspector Hukam Chand that the house of the accused is situated at the distance of five paces from the place of apprehension, then apprehension of accused from just in front of his house would have attracted the attention of at least immediate neighbourer who could be joined as witness. As per Inspector C.B. Sharma, he had tried to join the independent witnesses twice, firstly when the police party reached near 535 Ramlila Ground at about 4.40 pm and secondly at about 5.10 pm when SI Des Raj and SI Hukam Chand informed that accused had given the time of deal as 5.30 pm. The total distance between the place of parking of vehicle and the spot is given as 3/4 furlongs and his position was such that he could see the decoy customer from his position. In that circumstance, it appears to be improbable that he would tell the passers-by who may be residents of the same area that accused would come at about 5.30 pm for deal. It is also necessary to mention that in the statement of other PWs, it has come that secret information was received by Inspector C.B. Sharma but when he appeared in the witness box, he has stated that information was received by ACP Sh. Tshering who called him and conveyed the information which he reduced into writing vide DD No.16. He instructed the informer to develop the information and informed about the same immediately and at about 4.00 pm, informer came to his office and handed over half portion of Indian currency note of Rs.10/-. If the rukka Ex.PW7/C is perused, it is mentioned that ACP called Inspector C.B. Sharma in his office, introduced him to the secret informer and verbally directed him to take further action in the matter. After recording DD No.16, he instructed the informer to further develop the information. However, as per DD no.16, ACP Sh. N. Tshering verbally told Inspector C.B. 536 Sharma that he was having inputs about the circulation of fake US dollars in the area of Turkman Gate/Waller City by one Muslim aged about 65 years and directed Inspector C.B. Sharma to develop the above information. A combined reading of rukka, DD No.16 and statement of Inspector C.B. Sharma would show that there are glaring contradictions right from the stage of receipt of secret information and whether ACP Sh. Tshering was having only the inputs or the secret informer was present and introduced to Inspector C.B. Sharma. Thus, the statement of material prosecution witnesses is full of contradiction on all material points i.e. whether it was a receipt of secret information or direct meeting with the informer. It is also surprising that informer was present alongwith decoy customer i.e. SI Desh Raj and shadow witness SI Hukam Chand. It has come in the statement of landlord of the accused that accused was residing at that house since his birth meaning thereby that accused was known to almost all the neighbourers in that congested area. It is surprising that seeing a senior citizen being apprehended by the police , the neighbourers would not gather there to see the accused being apprehended by the police and accused dealing in fake US Dollars. If the accused was dealing in the fake US Dollars, he would not do it by sitting in open on a 'takhat' in front of his house and dealing with stranger without even 537 confirming their identity specially when the person tendering the half portion of Rs.10/- currency note was seen by him for the first time. Otherwise also there was no reason for the police party to send a police officer as decoy customer instead of any independent public witness. None joining of the public witness at any stage of the proceedings specially when the police officers claim that they remained present there for about seven hours right from 4.40 PM, itself raised doubt as the place of apprehension is such that they could not have remained present there without attracting the attention of neighbourers who could have been easily associated at least during the proceedings.

18. After going through the testimony of prosecution witnesses on all aspects, I find that their statement is not inspiring confidence and cannot be relied upon to base conviction of the accused, hence accused Allaudin is acquitted of the charge. Passport of the accused be returned to him after the expiry of period of appeal if any. Case property shall be confiscated to the State after expiry of period of appeal, if any. File be consigned to Record Room.


Announced in the open Court

13.4.2009                            ( PRATIBHA RANI )
                                     ASJ-01(Central)/Delhi




                               538
         IN THE COURT OF SMT. PRATIBHA RANI,
         ADDL. SESSIONS JUDGE-01(CENTRAL),
              TIS HAZARI COURTS, DELHI


SC No.86/07


State                Vs       (1) Jaleshwar Mehto,
                              S/o Sh. Baleshwar Mehto,
                              R/o Village Badwari,
                              PS Angada, Distt. Ranchi,
                              Jharkhand.


                              (2) Bhushan Toppo,
                              S/o Sh. Karma Toppo,
                              R/o D-1/30, Satya Marg,
                              Chanakya Puri, New Delhi.

                              FIR No.103/06
                              U/S : 376/342/384/506/
                              509/34 IPC
                              PS : Kirti Nagar


                              Date of Institution : 30.4.06
                              Arguments heard on : 2.4.09
                              Order pronounced on : 13.4.09

                              ***

JUDGMENT

Accused Jaleshwar Mehto and Bhushan Toppo have been sent to face trial for the offence punishable under Sec.376/342/384/506/509/34 IPC. In brief, the case of prosecution is that on the basis of statement under Sec.164 CrPC of the prosecutrix (name of the prosecutrix withheld to conceal 539 her identity) made in case FIR No.77/06 PS Kirti Nagar and complaint lodged by father of the prosecutrix, case FIR no.103/06 PS Kirti Nagar was registered against accused Jaleshwar Mehto and Bhushan Toppo. As per complaint lodged by Sh. Bhuneshwar Karmali, father of the prosecutrix, on 2.8.2006 with the permission of the Court, he brought his daughter from Nari Niketan. His daughter informed him that in February, 2005 she came from the Village to Delhi with Jaleshwar Mehto and that in the village itself, accused Jaleshwar gave some intoxicant to her and induced her to come to Delhi. On the way, he teased her and in Delhi she came to know that here he is known as Marshal. Accused Jaleshwar took her to Gurgaon and committed rape on her and also threatened to kill her if she disclose about the rape to anyone. She was kept forcibly in Jaitpur, Gurgaon and thereafter brought to Sarojini Nagar to a Placement Agency run by Bhushan Toppo who got her employed as maid servant at the house of Vineet Behl in Ramesh Nagar. While she was working there, accused Jaleshwar used to take her salary after threatening her and she was forced to level allegations of rape against Vineet Behl and his wife to extort money from them. She has also informed that accused Jaleshwar forcibly committed wrong act and Bhushan Toppo helped him, hence a legal action be taken against both of 540 them. In the endorsement made on the rukka, it is mentioned that on the basis of above statement and the statement of the prosecutrix under Sec.164 CrPC in case FIR No.77/06, case under Sec. 376/342/384/506/509/34 IPC was registered against these two accused persons. The prosecutrix was already medically examined in case FIR No.77/06 PS Kirti Nagar and her statement under Sec.164 CrPC was also recorded in that case only. During investigation, both the accused persons were arrested and sent for medical examination and after completion of investigation, chargesheet was filed against them.

2. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

3. After hearing on the point of charge, both the accused were charged on 16.10.2007 for the offence punishable under Sec.384/506/34 IPC and accused Jaleshwar Mehto was also charged for the offence punishable under Sec.365, 328/509 & 342/376 IPC to which they pleaded not guilty and claimed trial.

4. Prosecution has examined six witnesses in all in support of its case. Accused Jaleshwar Mehto and Bhushan Toppo have also been examined under Section 313 CrPC in which they have denied the case of the prosecution and stated that they are innocent and have been falsely implicated in this case. Accused Jaleshwar has produced two witnesses namely Sh. 541 Zhabu Karmali and Basant Karmali as DW-1 and DW-2.

5. DW-1 Sh. Zhabu Karmali has stated that he is younger maternal uncle of the prosecutrix. She came to Delhi and he was also with her at that time. He has stated that they four persons i.e. he (DW-1), prosecutrix, Deepak Thakur and accused Jaleshwar came to Delhi by train in the year 2005. They started from Ranchi Railway Station at about 3.00 pm and reached Delhi next day in the late night at about 10.30 pm. No incident had taken place during journey and his niece i.e. the prosecutrix was fine and conscious during journey and when they reached Delhi. She stayed with him for about 2-3 days in Delhi. She got the job and stayed in Delhi but he returned to village. He talked on phone to the prosecutrix once or twice a month and she never complained about any incident. She was well settled in Delhi. DW-2 Sh. Basant Karmali, brother of the prosecutrix has stated that in the year 2005, prosecutrix came to Delhi alongwith Deepak Thakur, Zhabu Lal Karmali and Jaleshwar Mehto in search of job. He came to see off them at Ranchi Railway Station. He was regularly in touch of prosecutrix through telephone. She never complained about any incident. She had also not complained against Jaleshwar at any point of time to him.

6. I have heard Sh S.C. Sharma, Addl PP for the State 542 and Sh. Pushpendu Shukla, counsel for the accused persons and also gone through the record carefully.

7. PW-1 is the prosecutrix. She has stated that she used to reside with her maternal grandmother (Nani) at Village Gondlipokar, PS Angaraha, Distt. Ranchi, Jharkhand and was studying in 7th standard there. Accused Jaleshwar Mehto who was residing in the same village, brought her to Delhi on the pretext of marrying her. He kept her at Jaitpur, Gurgaon and committed rape upon her. She was given some intoxicant tablet by Jaleshwar and after taking the same, she was not in full senses during the journey. The accused had threatened her at Jaitpur, Gurgaon not to disclose about the rape. Thereafter she was brought to accused Bhushan Toppo who get her employed with one Vineet Behl who was residing in Ramesh Nagar, Delhi on salary of Rs.1600/- pm. Accused Jaleshwar used to take her salary. She has further stated that she disclosed accused Bhushan about her kidnapping and rape by accused Jaleshwar but he kept mum. Vineet Behl used to give her beatings and therefore she left their house and came to accused Bhushan who took her to Police Station Kirti Nagar to make complaint regarding beatings given to her by Vineet Behl and then she was sent to Nari Niketan. She was produced before Ld. MM where her statement was recorded and she narrated the fact of beatings 543 by Vineet Behl. She was brought from Nari Niketan by her father and maternal uncle to whom she narrated the fact of kidnapping and rape. Then her father and maternal uncle took her to PS Kirti Nagar and her father lodged a report with the police. Vineet Behl and his wife did not do any galat kaam with her and she was compelled by the accused persons to lodge a false report of committing rape by Vineet Behl with the help of his wife. She has also stated that the accused persons were arrested on her identification and their personal memos Ex.PW1/A and B and arrest memos Ex.PW1/C and D were prepared. Disclosure statement of both the accused were recorded which are Ex.PW1/E and F. She was medically examined at the hospital and her statement under Sc.164 CrPC was also got recorded. As this witness did not fully support the case of prosecution, she was cross examined by ld. Addl. PP for State and when put in leading form, she has admitted that accused Jaleshwar Mehto enticed her and brought her to Delhi after administering some intoxicating substance to her and that when she regained her senses, accused Jaleshwar started 'chedkhaani' with her. She has also admitted that she was employed with Vineet Behl at the salary of Rs.2500/- pm and that whenever accused Jaleshwar Mehto used to visit Ramesh Nagar, she asked him to send her back to her village but he did 544 not send her and he used to take her salary under threat. She has also admitted that accused Bhushan told accused Jaleshwar about her leaving the job of Vineet Behl and both the accused asked her to lodge a false report against Vineet Behl for committing rape upon her on the pretext that thereafter she would be allowed to go back to her village. PW-1 has further admitted that she was not aware about the 'galat kaam' when she lodged the false report with the police against Vineet Behl and his wife and that accused Jaleshwar had committed rape upon her about one year back from the day when she gave her statement to the police in this case on 3.3.2006. She has also admitted that accused Bhushan told her that she should not tell anything about her kidnapping and rape by accused Jaleshwar or that he would not get job for her.

8. During cross examination by ld. Defence counsel, she has stated that intoxicant was administered to her in the train and she told her father that accused Jaleshwar brought her to Delhi on the pretext of marrying her. She has admitted that in the train, she did not inform anyone about her condition and that when her father lodged the report with the police, she was with him. She can sign in English. She has also stated that prior to working with Vineet Behl, she had also worked at Gurgaon through some other placement agency known as Bela Placement. 545 She has further stated that accused Jaleshwar committed rape on her twice at Jaitpur, Gurgaon and that she described the sexual act committed upon her by accused Jaleshwar in her own words and language for which the IO used the word as 'galat kaam' and she was aware about the terminology of 'galat kaam' when she made statement before the Magistrate. She has stated that she was raped twice at the interval of 15 days.

9. PW-3 Sh. Bhuneshwar Karmali, father of the prosecutrix has stated that he was residing at the above address alongwith his family and worked as auto driver. He did not remember the date, month or year but second year was running when this incident took place (his statement was recorded on 30.7.2007). One day he had gone to work as auto driver leaving her daughter, aged about 12-13 years at home and when he returned he was told by other residents of the locality that she has been taken away by Jaleshwar who used to make number of rounds to his house. He has further stated that as he was very poor he did not lodge any report at that time. Subsequently, he met his daughter in Tihar Jail and got her released from jail. He has correctly identified the accused to be present in the Court on the day when his statement was recorded by stating that he was wearing yellow shirt. He has further stated that his daughter narrated before the police and before him how the accused had 546 raped her and after getting her employed as maid at some place, had also taken her salary from the employer. It was only when he visited alongwith the police that Rs.10,000/- as salary for about six months was paid to her daughter. He has further stated that whatever was narrated by his daughter, was recorded by the police in her statement as well as in his statement Ex.PW3/A.

10. PW-2 Ct. Bahadur Singh is a witness to the arrest of accused persons and remained associated with ASI Kamlesh during the investigation of this case.

11. PW-4 Dr. Rishi, Medical Officer has proved the MLC of accused Bhushan Toppo and Jaleshwar Mehto, prepared by Dr. Mirza Azam Beg and Dr. Vishal Sehgal as Ex.PW4/A and B respectively. He has also proved the MLC of prosecutrix as Ex.PW4/C which was prepared by Dr. Swati Aggarwal and also the endorsement at point-X to X on the same made by Dr. Arpita regarding gynaecological examination. He has stated that he is conversant with the handwriting and signature of Dr. Mirza Azam Beg, Dr. Vishal Sehgal, Dr. Swati Aggarwal and Dr. Arpita.

12. PW-6 Sh. Pooran Chand, MM has recorded the statement under Sec.164 CrPC of the prosecutrix in case FIR no.77/06 PS Kirti Nagar. He has proved the copy of the statement as Ex.PW6/C.

547

13. PW-5 ASI Kamlesh Sharma has stated that on 3.3.2006 while she was posted at PS Kirti Nagar, a case vide FIR No.77/06 u/s 376/342/506/34 IPC was registered on the statement of prosecutrix. In that case, satement u/s 164 CrPC of prosecutrix was got recorded and after her statement, she was handed over to her father Bhuneshwar. Thereafter Bhuneshwar alongwith the prosecutrix came to the PS and she recorded the statement of Bhuneshwar Ex.PW3/A on which he signed at point-A and the same was attested by her vide her signature at point-B. On the basis of statement made by Bhuvneshwar and statement u/s 164 CrPC of prosecutrix, she made endorsement Ex.PW5/A on the statement Ex.PW3/A and got registered the case u/s 342/376/384/506/328/509/34 IPC by producing the tehrir before the duty officer. On the basis of said tehrir, FIR No.103/06 was recorded by HC Ravinder Kumar, copy of which is Ex.PW5/B. She also recorded the statement under Sec.161 CrPC of the prosecutrix. She has further stated that on 4.3.2006 she alongwith other staff and the prosecutrix went to D-1/30, Satya Marg, Chankya Puri, New Delhi and on the pointing out and identification of prosecutrix, accused Bhushan Topo was arrested from the outside the servant quarter vide arrest memo Ex.PW1/D and his personal search memo Ex.PW1/A was also prepared. Accused Bhushan Toppo made disclosure statement 548 which is Ex.PW1/F in which he disclosed that co-accused Jaleshwar could be arrested from Munirka. They went to H.No. 472, Munirka and from the corner of the gali, accused Jaleshwar was arrested on the identification of prosecutrix vide arrest memo Ex.PW1/C and his personal search memo Ex.PW1/B was also prepared. Accused Jaleshwar also made disclosure statement which is Ex.PW1/E. She recorded the statement of Ct. Bahadur Singh and supplementary statement of prosecutrix and thereafter both the accused were got medically examined at DDU Hospital and she collected their MLCs Ex.PW4/A and B.

14. On behalf of prosecution, it has been submitted by Sh. S.C. Sharma, Addl. PP that from the statement of prosecutrix, it is established that the accused persons compelled her to register a false case of rape against her employer Vineet Behl and his wife to extort money from them and it is also proved that the prosecutrix was brought from her village after administering some intoxicant to her and thereafter accused Jaleshwar Mehto committed rape on her at Gurgaon and she was also threatened not to disclose about that incident to anyone and accused Bhushan Toppo, in furtherance of common intention with accused Jaleshwar Mehto, also put the prosecutrix in fear of injury and abetted her to extort money from Vineet Behl, hence both the accused are liable to be convicted.

549

15. On behalf of accused persons, Sh. Pushpendu Shukla, Advocate has filed written submissions and contended that the prosecution has not been able to discharge the onus to prove the allegations against the accused persons. It has been contended that the statement of prosecutrix has not been corroborated by any evidence and the statement of prosecutrix is full of infirmities and discrepancies. FIR No.103/06 PS Kirti Nagar of this case was not lodged on the statement of prosecutrix but that of her father though she was present in the police station at the time of registration of FIR and it remains unexplained as to why her statement was not recorded for lodging the FIR. It has also been contended that the version of the prosecutrix in case FIRS No.77/06 PS Kirti Nagar is different from her version given in the instant case and her version in the Court is also changed and improved. The prosecutrix was employed at the house of Vineet Behl in August, 2005 whereas FIR No.77/06 PS Kirti Nagar was recorded in 2006 and there is no explanation as to why she remained silent if the rape was committed by accused Jaleshwar Mehto, a year back. It has also been contended that prosecutrix has stated that she came to Delhi with accused Jaleshwar Mehto on his promise to marry her and it shows that she came to Delhi of her own free will and that is why her father did not lodge any report about her missing. It has also been contended that if some 550 intoxicant was given to her in the train, then she could complain to the persons present in the compartment or railway/police officials on duty in the train but during this journey of more than 30 hours, she did not tell anyone about being given intoxicant. It has also been contended that prosecutrix and her father have been changing version time and again as is clear from her statement given in FIR No.77/06 PS Kirti Nagar and this FIR No.103/06 and it is also admitted by her that prior to working with Vineet Behl, she also worked in Gurgaon through some other placement agency namely Bela Placement Agency and further that she received her salary of Rs.10,000/- later on, then how it is possible that accused Jaleshwar Mehto was taking her salary under some threat and how is that that prosecutrix told about the rape to accused Bhushan Toppo and not to her family members. It is also contended by ld. Defence counsel that as per prosecutrix, she lived at the house of accused Jaleshwar Mehto in Gurgaon for sometime but he committed rape only twice at the interval of 15 days which is totally beyond the limits of reasonable conclusion and the medical report also does not support her version, hence both the accused persons be acquitted.

16. I have carefully gone through the evidence adduced by the prosecution and also considered the rival contentions. 551 Undisputedly statement under Sec.164 CrPC of the prosecutrix was recorded in case FIR No.77/06 PS Kirti Nagar wherein, in the FIR allegations of rape were levelled against Vineet Behl and his wife but during statement under Sec.164 CrPC, they were exonerated and allegations of rape were made against accused Jaleshwar Mehto and rape was stated to have been committed about one year prior to that date. The MLC Ex.PW4/C of the prosecutrix shows that she was brought to the hospital for medical examination with alleged history of sexual assault on 25.1.2006 only once. As per report of the doctor, hymen was intact and vagina admit one finger. There is further noting by the doctor that since patient is giving history of intercourse one month back, hence patient's undergarments were not sealed during examination. From this report of the Gynaecologist, it is clear that when she was taken to DDU Hospital by W/ASI Kamlesh Sharma, IO in case FIR no.77/06 PS Kirti Nagar, she did not give any history of sexual assault by any other person except the one named in FIR No.77/06 and doctor has specifically written that the history of sexual assault on 25.1.2006 only once was given. At that time, the prosecutrix was in police protection being examined by the doctor to whom she was giving the history as well as her date of LMP as 18.2.2006. Had there been any sexual assault by accused 552 Jaleshwar Mehto one year prior to that date, then either it could have been established during her medical examination or at least previous history of sexual assault by persons other than the one who alleged committed rape on 25.1.2006 would have been given before the doctor. It cannot be ignored that prosecutrix was medically examined at DDU Hospital on 19.2.2006 and her statement under Sec. 164 CrPC was recorded on 27.2.2006 i.e. almost eight days thereafter. In the statement under Sec.164 CrPC Ex.PW8/C also, she stated before Ld. MM that on 25.1.2006 and 27.1.2006 she was beaten mercilessly by Vineet Behl and his wife and also hanged with a duppatta in a kundi and o 18.2.2006 she left their house by jumping the boundary wall, took an auto and reached the office of accused Bhushan Toppo who run a placement agency and narrated all the facts to him. Thereafter accused Bhushan Toppo took her to the police station and she narrated all the incident to the police. Thus, till 27.2.2006 she had no grievance against Bhushan Toppo nor she stated that the so called false complaint against Vineet Behl and his wife was lodged by her at the instance of any of the accused persons. PW-5 W/ASI Kamlesh Sharma though stated that Bhuvneshwar came to the police station alongwith the prosecutrix and made statement Ex.PW3/A but it is not clear as to why a hear-say version of the father of the prosecutrix was 553 recorded by W/ASI Kamlesh when prosecutrix herself was present in the police station and had also lodged the complaint on the basis of which FIR No.77/06 was registered which was also being investigated by W/ASI Kamlesh. It is relevant to mention that statement under Sec.164 CrPC of the prosecutrix was recorded only in FIR No.77/06 PS Kirti Nagar and the IO W/ASI Kamlesh got the FIR No.103/06 PS Kirti Nagar recorded on the basis of statement of Bhuvneshwar and statement under Sec.164 CrPC of the prosecutrix after making endorsement Ex.PW5/A. Both the cases were separate and if complainant of FIR No.77/06 was present in the police station then her statement should have been recorded to register FIR against accused Jaleshwar Mehto and Bhushan Toppo. She has stated that accused Jaleshwar Mehto used to take her salary on coming to Ramesh Nagar but it has come on record that the salary has been taken by her from her employer after this case. Prosecutrix has stated that when she managed to run away from the house of her employer Vineet Behl who used to give beating to her, she came to the office of Bhushan Toppo and after she narrated the incident to him, he took her to PS Kirti Nagar and she narrated to the police regarding beatings given to her by Vineet Behl. If it was so, then the case for rape could not have been registered by the police and it could have been only for the beating given to 554 her. She has specifically stated that she was compelled to report to the police about the rape being committed by Vineet Behl which shows that she was aware that case of rape was being registered against Vineet Behl and it could not have been registered if the story of beating only by Vineet Behl or his wife was given to the police. When case FIR No.77/06 was registered, accused Jaleshwar Mehto was nowhere on the scene as prosecutrix was employed through the placement agency run by Bhushan Toppo. Accused Jaleshwar Mehto is stated to have committed rape one year prior to 27.2.2006 and before coming to Delhi for work, she also worked in some house at Gurgaon through Bela Placement Agency and during all this period, she was not under any kind of threat from accused Jaleshwar Mehto but till making statement under Sec.164 CrPC regarding rape being committed by Jaleshwar Mehto, she did not tell any of his family member about the rape being committed on her in Gurgaon by accused Jaleshwar. It cannot be ignored that the defence witnesses examined in this case are maternal uncle and real brother of the prosecutrix who have tried to prove the innocence of the accused persons. So far as age of the prosecutrix is concerned, her father has given her age as 12-13 years, she has given her age as 17 years but the contract of the placement agency refers to her age as 18 years with experience 555 of two years. So the prosecutrix was not minor when she came from her village to Delhi. The prosecutrix herself has stated that she came to Delhi of her own to marry accused Jaleshwar Mehto. Her father did not lodge any report when she came to Delhi. Her maternal uncle has deposed that he accompanied prosecutrix, Deepak Thakur and accused Jaleshwar to Delhi so there was no question of any abduction by accused Jaleshwar Mehto. There is serious discrepancy in the statement of prosecutrix as to when she was given some intoxicant by accused Jaleshwar. In her examination-in-chief, she states that accused gave some intoxicant tablet and after taking the same, she was not in full senses during journey but in the FIR lodged by her father in her presence, it is mentioned that accused Jaleshwar Mehto gave some intoxicant to her in the village itself and then brought her to Delhi. This part of the statement of prosecutrix is so improbable that it cannot be relied upon to base any conviction for the offence punishable under Sec.328 IPC. It has come in the statement of prosecutrix that she did not know if accused had done any wrong act with her in the train or not or outraged her modesty during journey, ingredients of Sec.509 IPC are not satisfied. Again at the cost of repetition, it can be said that maternal uncle of the prosecutrix has stated that he accompanied prosecutrix, Deepak Thakur and accused Jaleshwar 556 to Delhi in the year 2005 and during the journey, no incident had taken place and his niece was fine and conscious. Prosecutrix stayed with him in Delhi for 2-3 days and as the prosecutrix got the job, she stayed in Delhi whereas he returned to Village. He talked to prosecutrix on phone once or twice in a month and she never complained about any incident and she was well settled in Delhi. So far as charges for wrongful confinement and commission of rape against accused Jaleshwar Mehto are concerned, prosecutrix came to Delhi with Jaleshwar of her own and stayed in his house at Jaitpur, Gurgaon of her own sweet will. She had worked in different houses through different placement agencies and the charge of committing rape twice against accused Jaleshwar does not stand proved in view of the MLC Ex.PW4/C. In her statement under Sec.164 CrPC, she herself admits that she had levelled false allegations of rape against Vineet Behl and his wife as they used to give beatings to her, testimony of such a witness cannot be relied upon to convict accused Jaleshwar Mehto for commission of rape when MLC shows hymen intact and vagina admit one finger with history of rape only once on 25.1.2006 was given by patient. From the statement of prosecutrix, it does not stand proved that accused Bhushan Toppo had compelled her to lodge a false report against Vineet Behl and his wife and to implicate them in a case rape 557 case to extort money from them. Had it been so, the prosecutrix would have stated so in her statement under Sec.164 CrPc recorded on 27.2.2006 but in that statement, the only reason for getting the case FIR No.77/06 PS Kirti Nagar registered was that she was not willing to work as maid servant there and wanted to go to her parents house and that is why, she was mercilessly beaten by Vineet Behl and his wife and thereafter she ran away from their house, reached the placement agency of Bhushan Toppo, narrated the incident to him and it was accused Bhushan Toppo only who brought her to PS Kirti Nagar. Till that time, she had nowhere stated that it was accused Bhushan Toppo who wanted to extort money from Vineet Behl rather she herself wanted to get rid of her employer and lodged the report. Her statement is not trustworthy at all rather she changed stands as per her own convenience to ensure that she is not booked for lodging a false report of rape against her employer.

17. After carefully going through the evidence on record, I find that testimony of prosecutrix is not trustworthy at all and in order to serve her interest, she can go upto any extent by lodging false report against her employer or the persons through whom she came to Delhi in search of job. As prosecution has not been able to prove its case against the accused persons beyond reasonable doubt, both the accused persons namely Jaleshwar 558 Mehto and Bhushan Toppo are acquitted of the charge. File be consigned to Record Room.

Announced in the open Court 13.4.2009 ( PRATIBHA RANI ) ASJ-01(Central)/Delhi 559 IN THE COURT OF SMT. PRATIBHA RANI, ADDL. SESSIONS JUDGE-01(CENTRAL), TIS HAZARI COURTS, DELHI SC No.297/07 State Vs (1) Raja Saini, S/o Sh. Surender Kumar, R/o House No.9021, Shiddi Pura, 14-B, East Park Road, Delhi.

(2) Surender Kumar S/o Sh. Ram Kishan, R/o House No.9021, Shiddi Pura, 14-B, East Park Road, Delhi.

FIR No.302/05 U/S : 363/366/376/34/120-B IPC PS : DBG Road Date of Institution : 8.9.05 Arguments heard on : 13.4.09 Order pronounced on : 15.4.09 *** JUDGMENT Case FIR No.302/05 PS DBG Road was initially registered under Sec.363 IPC on 13.8.2005 on the basis of complaint made by Sh. Pradeep Kumar, father of the prosecutrix (name of the prosecutrix withheld to conceal her identity) that his daughter had left the house on 10.8.2005 at 9.00 pm without informing anyone and he had been searching for his daughter with his relations but he has come to know that his daughter has 560 been taken away by Raja Saini by inducing her to accompany him and even Raja Saini was not available at his house and he prayed for legal action against Raja Saini. After registration of the FIR for the offence punishable under Sec.363 IPC against accused Raja Saini for kidnapping the prosecutrix, investigation was assigned to ASI Surender Kumar and wireless message was flashed giving the description of the prosecutrix. On 16.8.2005 the prosecutrix was recovered and accused Raja Saini was arrested. Both of them were got medically examined and after recording the statement under Sec.161 CrPC of the prosecutrix, Sec.366/376 IPC were also added. Prosecutrix was also produced before the Magistrate for getting her statement under Sec.164 CrPC recorded. As allegations were also made by the prosecutrix in her statement under Sec.164 CrPC against accused Surender Kumar, father of accused Raja Saini, he was also arrested in this case and after completion of investigation, both the accused persons were sent to face trial for the offences complained of.

2. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

3. After hearing on the point of charge, accused Raja Saini was charged for the offence punishable under Sec.363/366 IPC and accused Surender Kumar was charged for the offence 561 punishable under Sec.368 IPC to which they pleaded not guilty and claimed trial.

4. Prosecution has examined eleven witnesses in all in support of its case. Both the accused persons have also been examined under Section 313 CrPC in which they have denied the case of the prosecution and stated that they were innocent and falsely implicated in this case. Accused Raja Saini has stated on the particular day, he was called by Nandini outside his house where she was present alongwith one Meenu. Nandini compelled and forced him to accompany her otherwise she would commit suicide. Helplessly he went with her and he tried to convince that they cannot marry and that he never proposed her for marriage. Accused Surender Kumar has stated he was falsely implicated in this case and that he only took his son and Nandini to the police when he came to know about their presence at Nangloi through his sister Bhagwati. He only helped the police. Accused persons have not led any evidence in their defence.

5. I have heard Sh. S.C. Sharma, Addl. PP for the State and Sh. A.S. Rajput, counsel for the accused persons and also carefully gone through the record.

6. PW-1 Smt. Indira is the mother of the prosecutrix who has stated that she knew accused Raja Saini as he was residing in 562 her neighbourhood for about 1½ years. She has further stated that about 2½ years ago, accused Raja Saini induced her daughter, aged about 15 years to accompany him and kept her at Nazafgarh and Nangloi. She was not taken out of Delhi and her daughter was recovered on the third day from the house of relation of accused in Nangloi. Accused Raja Saini as well as her daughter were sent to medical examination. She also stated that her daughter did not disclose anything to her.

7. As this witness did not support the case of prosecution, she was cross examined by ld. Addl. PP for State and then she has admitted that accused Raja Saini used to chase her daughter for about 1½ years prior to 10.8.2005 and he also proposed to marry her daughter for which she refused and that when her daughter got missing, accused Raja Saini was also not at home and matter was reported to the police by her husband. She has also admitted as correct that on 16.8.2005, she saw her daughter at PP Shiddipura and there she was told by her daughter that accused Raja Saini wanted to marry her and induced her to accompany him as he wanted to marry the prosecutrix. She has also admitted as correct that her daughter also told that accused Raja Saini took her to Bijnore and brought her to Delhi on 12.8.2005, kept her at Nazafgarh and on 13.8.2005 she was kept at Nangloi at the house of some of his relation. During her cross 563 examination by ld. Defence counsel, she has admitted that she was called to PP Shiddipura after recovery of her daughter and she had not gone to the house of relation of accused persons. She has also admitted as correct that accused Surender Kumar has brought his son Raja Saini and her daughter i.e. the prosecutrix to the Police Post but denied the suggestion that her daughter accompanied Raja Saini of her own sweet will.

8. PW-2 Sh. Pradeep Kumar is the complainant and father of the prosecutrix who has stated that on 10.8.2005, his daughter aged about 15 years was found missing at 9.00 pm. He searched for her and when she could not be found, he reported the matter to the police vide Ex.PW2/A. As accused Raja Saini was also not at home, he suspected him behind the missing of his daughter as he used to meet his daughter earlier also on way to her school. He has further stated that after about 4-5 days, he saw his daughter in PP Shiddipura and she was recovered from the custody of accused at Nangloi. Accused Raja and his daughter were got medically examined. He stated that his daughter told him that she was kidnapped by accused Raja Saini to marry her and that accused Raja Saini had taken her to Bijnore and thereafter she was brought to Delhi.

9. PW-3 is the prosecutrix who has stated that she knew accused Raja Saini as he was treating her friend and classmate 564 Ruchika as his sister and that she knew him for about two years (her statement was recorded on 10.4.2008) and at that time she was studying in class 11th. She has further stated that on 23.7.2005 accused Raja Saini offered her to gift one mobile phone on her birthday and on 24.7.2005 he gifted one mobile phone to her. On 10.8.2005 she had taken the mobile to her school which was taken by her class teacher and when accused Raja Saini came to know that the said mobile had been taken by her class teacher, he offered her to marry him for which she refused. On the same day at about 8.30 pm, accused Raja Saini forcibly took her to the house of his Mausi at Bijnore and when she asked accused Raja Saini to make a telephone call at her house, he did not allow her and also told her that his father was also aware and would cooperate them. She has further stated that on 12.8.2005 when accused Raja Saini brought her to Delhi, his father met them at Metro Station, Tis Hazari and thereafter they took her to the house of 'Bua' of accused Raja Saini which was situated in a Village in Delhi, however the name of the area she did not remember. On 14.8.2005 accused Raja Saini and his father took her to Nangloi and when she asked to go back to her house, accused Surender Kumar told her that he would talk to her parent about her marriage with accused Raja Saini. She has further stated that though the accused persons asked her to marry 565 with accused Raja Saini, she refused for the same and on 15.8.2005 both the accused brought her to PP Shiddi Pura and thereafter her parents also reached there and brought her home. She has further stated that her statement was recorded by the Police in the PP and she also got medically examined in a hospital and that her statement under Sec.164 CrPC was also got recorded which is Ex.PW3/A. She has also stated that her suit salwar, baniyan and chunni were seized by the police vide memo Ex.PW3/B.

10. PW-4 Smt. Bhagwati has stated that accused Surender is her brother in distant relation and accused Raja Saini is son of accused Surender Kumar. She did not remember the year but on 15th August, she saw accused Raja Saini with a girl on the road and she took them to her house and informed Surender Kumar on telephone who asked her not to allow them to leave the house and that he was coming to take them. Thereafter accused Surender Kumar came to her house and took Raja and the girl with him. As this witness did not support the case of prosecution, she was cross examined by ld. Addl. PP for State. She has denied the suggestion that on 14.8.2005 accused Surender Kumar alongwith accused Raja Saini and the girl came to her house and told her that marriage had been solemnised between Raja Saini and that girl and on 15.8.2005 Surender 566 Kumar took away Raja Sani and the girl with him and later on, she came to know that accused Raja Saini had kidnapped the said girl.

11. PW-8 Smt. Sharda is the sister of accused Surender Kumar. She has stated that accused Surender had never come to his house with accused Raja Saini or with some other girl. As this witness has turned hostile, she was cross examined at length by ld. Addl. PP for State but without any success. During cross examination by ld. Addl. PP, she has denied the suggestion that on 12.8.2005 her brother Surender Kumar and his son Raja Saini alongwith one girl came to her house and they told her that Raja Saini and that girl were likely to marry shortly and that on 14.8.2005 accused Surender took them away without disclosing anything to her and later on she came to know that the said girl eloped with accused Raja Saini.

12. PW-7 is Ms. Sudha Lal (Retd.) PGT, Sat Brahma Arya Kanya Sr. Secondary School, Arya Samaj Road, Karol Bagh, New Delhi. She has stated that as three years have passed, she did not remember anything about this case, however, in the year 2005 she was posted as PGT in the above school and was teaching Social Science and Political Science to Class 10th, 11th and 12th. The Principal had instructed the teachers to check the girls if they were carrying mobile and it was a routine practice. 567 She has further stated that she did not remember any specific incident or recovery of mobile phone from any particular girl. As this witness did not support the case of prosecution, she was cross examined by ld. Addl. PP for State. During cross examination on behalf of State, she has specifically denied the suggestion that prosecutrix, who was studying in class-11th-D, was being caught by her in the year 2005 and the mobile and the charger were recovered from the prosecutrix which were handed over by her to the Principal. She has further denied the suggestion that in her presence, the principal had handed over the mobile and charger to Sh. Pradeep, father of prosecutrix.

13. PW-9 Dr. Manisha has identified the handwriting and signature of Dr. Ramneek on the MLC Ex.PW9/A and stated that he has seen Dr. Ramneek writing and signing during the course of official duties and that Dr. Ramneek has left the services of hospital and his present whereabouts are not available in the hospital record.

14. PW-11 Sh. Paramjeet Singh, the then MM has recorded the statement Ex.PW3/A under Sec.164 CrPC of the prosecutrix which bears his signature at point-B and that of prosecutrix at point-A.

15. PW-5 HC Kailash Chand is the Duty Officer who has recorded the FIR no.302/05 of this case, carbon copy of which is 568 Ex.PW2/A.

16. PW-6 Ct. Khurshid Ali was with IO ASI Surender during the investigation of this case. PW-9 ASI Surender Kumar has stated that on 13.8.2005 the investigation of this case was entrusted to him and the duty officer handed over to him the copy of FIR which was recorded on the statement of complainant Pradeep Kumar. He got flashed wireless message regarding the missing girl. He has further stated that on 15.8.2005 in the night, accused Surender came to the PP Siddhi Pura and produced the missing girl and his son Raja Saini and thereafter accused Surender left the Police Post leaving accused Raja Saini and the girl there. Thereafter he called the parents of the girl and also interrogated the girl and recorded her statement under Sec.161 CrPC. On 16.8.2005 a recovery memo Ex.PW6/A was also prepared. He also got removed the clothes i.e. pant, shirt, underwear and baniyan of accused Raja Saini and kept the same in pullanda and sealed with the seal of SKY and seized the pullanda vide memo Ex.PW6/B. He also seized the clothes i.e. suit-salwar, baniyan and chunni of prosecutrix and kept the same in pullanda and sealed with the seal of SKY and seized vide memo Ex.PW3/B. The girl and accused Raja Saini were also got medically examined and he collected their MLCs which are Ex.PW9/A and B respectively. After medical 569 examination, the doctor handed over sealed pullanda of blood, semen, nails, pubic hair alongwith sample seal of SSKM and LHMC which were seized vide memo Ex.PW6/C. Complainant Sh. Pradeep Kumar also produced one mobile instrument of make SAMSUNG alongwith its charger which was given by accused Raja Saini to the prosecutrix and later on taken away by School Teacher from the prosecutrix and handed over to complainant Pradeep by the teacher. He seized the said mobile vide memo Ex.PW9/C. He has further stated that he moved an application, copy of which is Ex.PW9/D, for recording statement under Sec.164 CrPC of prosecutrix and on the said application, statement under Sec.164 CrPC of prosecutrix was recorded. He collected the copy of statement under Sec.164 CrPC of prosecutrix from the Court on the application Ex.PW9/E and the copy of statement under Sec.164 CrPC is Ex.PW9/F. He has further stated that he also collected the certificate Ex.PW9/G in respect of date of birth of prosecutrix from the School. Thereafter, he arrested accused Raja Saini vide arrest memo Ex.PW6/E and his personal search was conducted vide memo Ex.PW6/F. The prosecutrix was handed over to her parents and memo Ex.PW6/D was prepared in this respect. As there was allegation in the statement under Sec.161 CrPC as well as 164 CrPC against accused Surender, he was formally arrested on 570 11.9.2005 vide arrest memo Ex.PW9/H but being on anticipatory bail, he was released on bail. He has further stated that the exhibits could not be sent for examination as priority letter was not received and that he recorded the statement of witnesses correctly and thereafter handed over the file to Incharge, PP Shiddi Pura and after completion of investigation, both the accused persons were chargesheeted.

17. On behalf of State, it has been submitted by Sh. S.C. Sharma, Addl. PP that from the statement of the prosecutrix and her parents, it is proved by the prosecution that she was induced by accused Raja Saini to accompany him with intent to marry her and his father i.e. accused Surender Kumar knowing fully well that the prosecutrix had been kidnapped by his son i.e. accused Raja Saini, wrongfully kept her at Nazafgarh and Nangloi before producing her at PP Shiddipura, hence the case against the accused persons stands proved and they convicted.

18. On behalf of accused persons, Sh. A.S. Rajput, ld. Defence counsel has contended that it has been admitted by the complainant and his wife as well as the prosecutrix that it was accused Surender Kumar who brought his son as well as the prosecutrix to PP Shiddipura and infact, he assisted the law and order agency in recovering the prosecutrix and no case is made out against him. Ld. Defence counsel has further contended that 571 it is admitted by the prosecutrix that she was having friendly relations with accused Raja Saini and she was even gifted a mobile by accused Raja Saini on her birthday and she was meeting him near her school. Ld. Defence counsel has contended that when she has accompanied accused Raja Saini upto Bijnore, UP and also remained in Delhi at different places and at no point of time, she ever complained to anyone that she was being forcibly taken away by accused Raja Saini, in such circumstances, the only inference is that she was a willing party and accompanied accused Raja Saini of her own, hence both the accused be acquitted.

19. So far as statement of PW-1 Smt. Indira, mother of the prosecutrix is concerned, she has deposed that he daughter aged about 15 years got missing and accused Raja Saini induced her daughter to accompany him. She was recovered on the 3rd day from Nangloi from the house of relation of accused and then both of them were medically examined. She has also stated that when she had a talk with her daughter at the police station, she did not disclose anything to her. This witness was declared hostile by the prosecution. However, in cross examination by ld. Defence counsel, she admitted that it was accused No.2 Surender Kumar who brought the prosecutrix and his son accused No.1 Raja Saini to the Police Post. She has admitted that she did not 572 go to the house of relation of accused persons and that she was called to PP Shiddipura after recovery of her daughter. Similarly PW-2 Sh. Pradeep Kumar, the complainant and father of the prosecutrix also admits that he saw his daughter at PP Shidipura and that his daughter told him that she was kidnapped by accused Raja Saini to marry her and that she was taken to Bijnore and then brought to Delhi. Thus, from his statement also, it is clear that accused Raja Saini and the prosecutrix were brought to PP Shiddipura by accused No.2 Surender Kumar and then only PW-1 Smt. Indira and PW-2 Sh. Pradeep Kumar came to know about the recovery of prosecutrix.

20. So far as testimony of PW-3, the prosecutrix is concerned, she admits her friendship with accused Raja Saini for a period of about two years. She also admits that she was gifted a mobile on her birthday by accused no.1 Raja Saini and that this mobile was taken away by her class teacher on 10.8.2005 as she had taken it to the school. Thus, friendship between accused no.1 Raja Saini and the prosecutrix and gift of mobile on birthday stands admitted by her. Now the question arises as to in what circumstances, she accompanied the accused Raja Saini on 10.8.2005 i.e. whether she herself willingly accompanied accused no.1 Raja Saini or was induced by accused Raja Saini to accompany him. Her statement is that when accused no.1 came 573 to know that the mobile had been taken by her class teacher, he offered to marry her for which she refused and on the same day at about 8.30 pm, he forcibly took her to the house of his Mausi at Bijnore. Here it remains unexplained as to who would tell the accused no.1 that the mobile had been taken by the class teacher. It can only be the prosecutrix. Secondly, taking of mobile by the class teacher cannot be a reason for accused no.1 Raja Saini for giving offer to the prosecutrix to marry him. Another aspect is that the prosecutrix has very cleverly omitted the fact as to from where she was taken by the accused Raja Saini forcibly i.e. whether it was her own house or house of her friend Meenu, where she daily went at about 8.00 pm. In cross examination, she has stated that on that day, she remained at her house till 8.00 pm and thereafter went to the house of her friend Meenu. She has further stated in her cross examination that she used to go to the house of Meenu daily after telling her mother as she used to reside in the same gali, however, no such statement has been given by her parents either before the Court or in the complaint Ex.PW2/A. The date of occurrence is 10.8.2005 and FIR has been lodged in the evening of 13.8.2005 i.e. after three days but there is no mention in the FIR or statement before the Court that prosecutrix left her house as usual at 8.00 pm to visit the house of her friend Meenu who resides in the same gali nor 574 Meenu has been cited as witness in this case. Even otherwise if she was in the house of Meenu, this fact could be only in her knowledge and accused had no reason to presume her presence there and then forcibly take her away from the house of Meenu. The prosecutrix has admitted that on the way to Bijnore, she did not complain to anyone that she was being forcibly taken away by accused Raja Saini. In normal circumstances if a young girl is being taken away forcibly from the gali by an unarmed person, raising of alarm by her would have attracted the attention of neighbourers and accused Raja Saini could have been caught there and then. It is not the case of prosecutrix that some intoxicant was given to her, some weapon was shown to her or any threat was given to her right from the stage of taking her away till she was brought to PP Shiddipura by accused No.2 Surender Kumar. It is also relevant to mention that as per class- 10th certificate placed on record by the prosecution, date of birth of prosecutrix is 24.7.1988 and date of occurrence is 10.8.2005 meaning thereby that she was above 17 years of age at that time and had already attained the age of discretion though yet to touch 18 years. In the case Shyam & Another Vs. State of Maharashtra1995 Crl.L.J. 3974 the facts were identical to the extent that the prosecutrix was yet to attain the age of 18 years and she claimed that she was being taken away forcibly by the 575 appellant therein. In para 3 of the judgment, it was held as under :-

"3. In her statement in court, the prosecutrix has put blame on the appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her. Normally her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the so- called "taking", it does not seem that the prosecutrix was truthful in that regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to a common tap, catering to many, would be found alone, or that her whereabouts would be under check by both the appellants/accused and that they would emerge at the scene abruptly to commit the offence of kidnapping by "taking" her out of the lawful guardianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but still she was in the age of discretion, sensible and aware of the intention of the accused-Shyam, that he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, if any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam-the appellant on her own and in that sense there was no "taking' out of the guardianship of her mother. The culpability of neither Shyam, A-1 nor that of Suresh, A-2, in these circumstances, appears to us established. The charge against the appellants/accused under Section 366 IPC would thus fail."

21. In the case S. Varadarajan Vs. State of Madras AIR 1965 SC 942 (V 52 C 150), the Apex Court has observed as 576 under :-

"But when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) from the house of the relative of the father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the Sub-Registrar's Officer where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have 'taken' her out of the keeping of her lawful guardianship, that is, the father.
The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances, no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him."

The Apex Court noting the distinction between taking and allowing a minor to accompany a person, held that "no case of kidnapping was made out".

22. Now reverting to the facts of the present case, the prosecutrix has stated in her cross examination that accused had taken her to Railway Station on a bike and from there to Bijnore by train. It is not mentioned by her as to where the bike was left after they reached the Railway Station and what effort was being 577 made by her to draw public attention when accused Raja Saini was driving the motorcycle as at that time accused was not having grip on her and she was free to either jump from the motorcycle, draw the attention of traffic police and the public persons passing on the road or at least to complain after reaching the Railway Station where sufficient security persons remain present 24 hours. Admittedly she had not raised any alarm or taken any step to tell the persons around that she was being forcibly taken by accused No.1 Raja Saini. In the circumstances, the only conclusion that can be drawn is that deliberately she was mentioned as 15 years in the complaint though she was running in 18th year. As she has attained the age of discretion and from the record, it is established that she had accompanied accused Raja Saini of her own sweet will and remained with him at the house of relations voluntarily. She has not made allegation of rape against accused No.1 Raja Saini. Accused no.2 Surender Kumar, undisputedly, was the person who brought not only his son but also the prosecutrix to the police station. He has been prosecuted unnecessarily without proper investigation in the case. Had he been the person who wrongfully confined the prosecutrix knowing well that she was being abducted by his son i.e. accused Raja Saini, there was hardly any need for him to bring the prosecutrix to the police post. It appears that 578 prosecutrix might be feeling ashamed of her conduct and finding it difficult to face her parents and in view of young age of prosecutrix and accused no.1 Raja Saini that legally they were not of marriageable age, it is possible that he might have taken some time to persuade them to surrender before law but definitely it could not be his motive to conceal her knowing that her son had taken her forcibly. It is also relevant to mention that in the statement under Sec.164 CrPC, the prosecutrix stated that accused No.2 Surender Kumar forcibly obtained her signatures on some papers but no such paper has been recovered in this case. The prosecutrix was student of 11th standard and could read and understand the nature of documents on which her signatures were obtained but nature of documents was not disclosed by her in her statement Ex.PW3/A. No calls details of the mobile given to the prosecutrix by accused Raja Saini or the call details of the phone on which accused Raja Saini stated to have contacted his father have been collected and produced before the Court. Had the call details of the mobile of the prosecutrix gifted to her by accused Raja Saini been collected and proved on record, things would have become clear about the relationship between the prosecutrix and accused Raja Saini and the situation in which they left home.

23. Taking into consideration that the statement of 579 prosecutrix that she was forcibly taken away by accused Raja Saini is not trustworthy at all and does not inspire any confidence, I am of the opinion that no case under Sec.363/366 IPC against accused Raja Saini and no case under Sec.368 IPC against accused Surender Kumar is made out. Hence, both the accused persons namely Raja Saini and Surender Kumar are acquitted of the charge. Case property i.e. the clothes seized in this case, be returned to its rightful owner after the expiry of period of appeal, if any. File be consigned to Record Room.


Announced in the open Court

15.4.2009                           ( PRATIBHA RANI )
                                    ASJ-01(Central)/Delhi




                              580
         IN THE COURT OF SMT. PRATIBHA RANI,
         ADDL. SESSIONS JUDGE-01(CENTRAL),
              TIS HAZARI COURTS, DELHI

SC No.303/07

State                Vs      Wasim,
                             S/o Sh. Mirazuddin,
                             R/o 3868, First Floor,
                             Gali Hosp Kala Mahal,
                             Jama Masjid, Delhi.

                             FIR No.248/06
                             U/S : 363/366/376 IPC
                             PS : Patel Nagar

                             Date of Institution : 31.10.07
                             Arguments heard on : 15.4.09
                             Order pronounced on : 15.4.09

                             ***

JUDGMENT

Accused Wasim has been sent to face trial for the offence punishable under Sec.363/366/376 IPC on the basis of FIR lodged by Sh. Narender Kumar, father of the prosecutrix (name of the prosecutrix withheld to conceal her identity). As per contents of FIR No.248/06 PS Patel Nagar, the complainant Sh. Narender Kumar reported to the police that on 23.5.2006 his daughter had gone to the house of his sister at Ashok nagar, Tilak Nagar. On 27.5.2006 his daughter started from the house of her 'bua' and though she did not return, also telephoned her 'bua' that she has reached home which he came to know on 581 28.5.2006 when he telephoned his sister asking her to send his daughter and was informed that the prosecutrix had left her bua'a house on 27.5.2006 in the evening. As his daughter did not reach home till 29.5.2006, he continued searching her but could not find her. He suspected that one boy Wasim, who was earlier running a 'kabadi' shop on the ground floor of the house where the complainant was living earlier, had taken away his daughter and he wanted legal action against accused Wasim who frequently used to telephone his daughter.

2. On 5.6.2006 the prosecutrix surrendered in the Court of Sh. Rakesh Kumar, MM, Rohini and from there, she was taken for medical examination to DDU Hospital and thereafter Sec.376 IPC was added. The statement under Sec.164 CrPC of the prosecutrix was also got recorded and proof of age of prosecutrix was obtained. Accused Wasim, who was on anticipatory bail, was formally arrested and after completion of investigation, chargesheet was filed against the accused for the offences complained of.

3. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

4. After hearing on the point of charge, accused Wasim was charged for the offence punishable under Sec.363/366/376 IPC to which he pleaded not guilty and claimed trial. 582

5. Prosecution has examined eight witnesses in all in support of its case. PW-1 is the prosecutrix who has stated that about two years back on 27th May, (her statement was recorded on 12.8.2008) she was coming back from the house of her 'bua' who was residing in Tilak Nagar but she went to Chawari Bazar as she had called the accused Wasim there. She has further stated that accused met her in Charwi Bazar and from there, they went to Tis Hazari Court and her 'nikah' with Wasim was performed by a 'Qazi' who was called at Tis Hazari Court and she got married to the accused. Thereafter they went to Nainital and stayed there for two days as husband and wife and accused had physical relations with her with her consent. She has further stated that from Nainital, she alongwith the accused went to the house of accused and lived there upto 5th June. Then they both went to Rohini Courts and appeared before the Court of Magistrate. Police was already there. Her statement was got recorded in the Court. She has admitted her signature at point-A on the statement under Sec.164 CrPC Ex.PW1/A and stated that police did not make any inquiry from her nor recorded her statement. As this witness did not support the case of prosecution, she was cross examined at length by ld. Addl. PP for State but without any success.

6. PW-2 Smt. Pushpa is the mother of the prosecutrix 583 who was given up by the prosecution being unnecessary.

7. PW-8 Sh. Narender Kumar is the complainant and father of the prosecutrix. He has stated that about three years ago, his daughter who was 16½ years old at that time, was studying in 11th standard in Bhai Joga Singh School at East Patel Nagar. At that time, they were residing in West Patel Nagar and earlier they used to reside as tenant at T-406, Baljeet Nagar at the first floor. He has further stated that accused Wasim opened a kabadi shop on the ground floor of that house about one year prior to this incident. They had vacated that house as he purchased his own house. PW-8 Sh. Narender Kumar has further stated that he used to go to his work and in his absence, his daughter used to leave home on the pretext of taking tuition or meeting her friend. On 22th May in 2005 when he reached home, he had a quarrel with his daughter as she reached home late and when she gave the excuse that she had gone to her friend, he wanted her to accompany him to that friend to confirm that for which she refused. After two days, his daughter went to the house of her 'bua' who reside in Ashok Nagar and she stayed there for 2-3 days. PW-8 has further stated that he telephoned his sister to send his daughter and thereafter she left the house of her 'bua' for their house on 27.5.2006, however, she did not reach home. As his daughter did not reach home till late evening, he 584 searched for her at the house of his relations and he also collected his relations to make efforts to search her and ultimately he reported the matter to the police on 27th and police made efforts to search his daughter. On the same day, he received a call from his daughter who was calling from a PCO asking him to save her as she apprehended danger from accused Wasim. They reached PCO and her photograph was shown to the person managing PCO and that person confirmed that his daughter telephoned from there. Thereafter they returned home and next day, he lodged the complaint vide FIR Ex.PW6/A. He has further stated that after one day, his daughter telephoned her mother to inform that she had married Wasim. His wife tried to persuade her to come home but she said that she would meet her in the Court. Thereafter they met her in Rohini Court and from there, their daughter was sent to Nari Niketan. Later on, custody of his daughter was handed over to him on superdari but as she continued leaving home to meet the accused without telling them, they approached the Court to explain that they were unable to fulfill the responsibility as she continued leaving home without telling them whenever she was telephonically called by the accused and again she was sent to Nari Niketan. Thereafter through Court order, again she was handed over to them and they took her home from Nari Niketan. He has stated that he has 585 wrongly mentioned the year as 2005 but the incident took place three years ago i.e. 2006.

8. PW-3 Ct. Tribhuvan was posted as Naib Court in the Court of Sh. A.S. Aggarwal, MM, Tis Hazari in whose presence the IO W/SI R.P. Minz interrogated the accused and arrested him vide arrest memo Ex.PW3/A and conducted his personal search vide memo Ex.PW3/B.

9. PW-4 HC Balwan obtained three sealed pullandas alongwith two sample seal from the MHC(M) and took the same to CFSL, Calcutta vide RC No.170/21 and deposited the same there and on return, handed over the receipt to the MHC(M). He has stated that so long the pullandas remained in his custody, the same were not tampered with.

10. PW-5 HCV Om Singh took the accused Wasim to DDU Hospital for medical examination where after the medical examination, the doctor handed over one sealed pullanda stated to be containing blood sample alongwith sample seal to him which he handed over to the IO who seized the same vide memo Ex.PW5/A.

11. PW-6 ASI Ranbir Singh is the Duty Officer who has written the FIR and proved the copy of the same as Ex.PW6/A.

12. PW-7 HC Yogesh Kumar was working as MHC(M) at PS Patel Nagar at the relevant time and he has proved the copy 586 of relevant entries in the register No.19 as Ex.PW7/A and B regarding deposit of exhibits in the Malkhana by the IO. He has also stated that on 26.10.2006, all the exhibits were sent to CFSL, Calcutta through ct. Balwan vide RC no.170/21. He has stated that so long the pullandas remained in his custody, the same were not tampered with.

13. In the instant case, statement of PW-8 Sh. Narender Kumar, the complainant is sufficient to prove that the prosecutrix was not under his control and that was the reason that he was compelled to move the Court for cancellation of superdari of his daughter and again she was sent to Nari Niketan but later on again she was handed over to him under order of Child Welfare Committee (CMC). The statement of prosecutrix before this Court is sufficient to prove that the prosecutrix had accompanied the accused of her own sweet will. Rather she called the accused to Chawari Bazar and came alongwith him to Tis Hazari Court where their 'nikah' was performed by a 'Qazi' and thereafter they had gone to Nainital where they stayed as husband and wife and accused had physical relations with the prosecutrix after performing 'nikah' with her.

14. As no incriminating evidence has come on record against the accused which could be put to him, his statement under Sec.313 CrPC was dispensed with.

587

15. In the instant case, first of all it is to be seen that at the time of eloping with the accused, the age of the prosecutrix was mentioned to be 16½ years but when her statement under Sec.164 CrPC was recorded, she has given her age to be 18 years. In the statement Ex.PW1/A recorded under Sec.164 CrPC on 24.6.2006, she has stated that she was gifted a mobile by the accused with whom she was in love and that her mother came to know that the mobile has been gifted by some boy and it was snatched by her mother and then she telephoned accused Wasim either to take her along or she would commit suicide by consuming something and only thereafter accused met her and they both got married in Tis Hazari Court where their 'nikah' was performed by one 'Qazi'. Although there is copy of birth certificate of a female child born to the complainant on 23.1.1990 and the prosecutrix is giving her age as 18 years but in any case, at the time of eloping with the accused, she was above 16 years of age. She has married the accused as per Muslim Rights and specifically stated before the Court that they lived as husband and wife in Nainital. Taking into consideration that it was the prosecutrix who called the accused Wasim to take her along and thereby married him and accompanied him to Nainital, it is not a case where accused can be termed as having kidnapped her with intent that she may be compelled to marry 588 against her will and may be forced or seduced to have illicit intercourse or committed rape on her. Not only during her statement under Sec.164 CrPC but also before this Court, she sticked to her statement that she married the accused and he had physical relations with her as his wife and with her consent. In the case S. Varadarajan Vs. State of Madras AIR 1965 SC 942 (V 52 C 150), the Apex Court has observed as under :-

"But when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) from the house of the relative of the father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the Sub-Registrar's Officer where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have 'taken' her out of the keeping of her lawful guardianship, that is, the father.
The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances, no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him."

The Apex Court noting the distinction between taking and allowing a minor to accompany a person, held that "no case 589 of kidnapping was made out".

16. Now reverting to the facts of the present case, when the prosecutrix has attained the age of discretion and herself is calling the accused to take her alongwith and married him and accused had physical relations with her as his wife, in view of the above judgment, it cannot be said that the accused had kidnapped her with intent that she may be compelled to marry against her will and may be forced or seduced to have illicit intercourse or committed rape on her.

17. In view of above discussion, the prosecution has not been able to prove its case against the accused beyond reasonable doubt. Hence, accused Wasim is acquitted of the charge. File be consigned to Record Room.


Announced in the open Court

15.4.2009                            ( PRATIBHA RANI )
                                     ASJ-01(Central)/Delhi




                               590
         IN THE COURT OF SMT. PRATIBHA RANI,
        ASJ-01 (CENTRAL), TIS HAZARI COURTS,
                       DELHI

SC No.152/07


State             Vs     1.    Sanchit Ram,
                               S/o Sh. Ram Khilawan,
                               R/o A-4/193,
                               Railway Colony,
                               Pahar Ganj, Delhi.

                               Permanent Address :
                               Village Bapu Purba
                               Changery, PS Umary,
                               Begam Ganj,
                               Distt. Ghonda, U.P.

                         2.    Raghav Ram,
                               S/o Sh. Ram Khilawan,
                               R/o C-13, Cannaught Place
                               Roop Chand Jewellers,
                               New Delhi.

                         3.    Ramjeet,
                               S/o Sh. Ram Khilawan,
                               R/o C-13, Cannaught Place
                               Roop Chand Jewellers,
                               New Delhi.

                         4.    Ram Anchal,
                               S/o Sh. Vidya Pal
                               R/o C-13, Cannaught Place
                               Roop Chand Jewellers,
                               New Delhi.

                         FIR No.521/06
                         U/s : 498-A/306/34 IPC
                         PS : Pahar Ganj




                         591
                                Date of Institution : 13.12.06
                               Arguments heard on : 21.4.09
                               Order pronounced on : 21.4.09

                               ***

JUDGMENT

Accused Sanchit Ram, Raghav Ram, Ramjeet and Ram Anchal have been sent to face trial for the offence punishable under Sec.498-A/306/34 IPC on the basis of complaint made by Sh. Man Bahadur, brother of the deceased Smt. Sunderpati @ Meena. As per averments made in the complaint Ex.PW3/A, Smt. Sunderpati @ Meena, sister of the complainant was got married to accused Sanchit Ram about 14 years prior to date of the occurrence i.e. 1.10.2006. The Gona Ceremony was performed about six years prior to the occurrence and 'aana-jana' started for a period of two years prior to her unnatural death. It is mentioned in the complaint that after the gona ceremony, accused Sanchit Ram and his elder brother Raghav Ram, Ramjeet alongwith their nephew Ram Anchal started demanding dowry. They were demanding vehicle, television and cash and it was also conveyed that if these articles cannot be given then they should transfer the land in favour of accused. On 9.10.2006 deceased Sunderpati called from the phone of accused Sanchit Ram and said that Sanchit Ram was abusing her and he was also demanding motorcycle. Thereafter 592 the phone was disconnected. On 11.10.2006 he received information that his sister had committed suicide by hanging and thereafter he came to Delhi and lodged this complaint. On the basis of this complaint, FIR No.521/06 under Sec.306/498-A/34 IPC was registered. During investigation, all the four accused were arrested and sent to face trial for the offences complained of.

2. After compliance of provisions of Sec. 207 CrPC, the case was committed to the Court of Sessions.

3. After hearing on the point of charge, all the four accused persons were charged on 20.9.2007 for the offence punishable under Sec.498-A/304-B/306/34 IPC to which they pleaded not guilty and claimed trial.

4. Prosecution has examined five witnesses in support of its case. PW-1 Sh. Sampat Yadav was given up by ld. Addl. PP for State being unnecessary. PW-2 Smt. Savitri is the landlady of the house where accused Sanchit Ram was residing as tenant. She has stated that accused Sanchit Ram was residing as tenant alongwith his wife Meena in her house. She has further stated that she did not remember the exact date, month or the year, however about 2 years back (her statement was recorded on 22.10.2008) at about 6.00 pm she was present at her house and at that time brother of accused Sanchit Ram i.e. accused 593 Raghav Ram came to the room of his brother Sanchit Ram. The door of the room was found locked from inside. He knocked the door but it could not be opened. She peeped out from the window of the kitchen and saw that Meena was hanging on the pipe of the ceiling with some cloth around her neck. She has further stated that on that day she had a talk with Meena in the noontime and she was well at that time. She did not know why Meena committed suicide. She also did not know if there was any quarrel between Meena and her husband.

5. PW-3 Sh. Man Bahadur is the complainant and elder brother of the deceased. He has stated that his sister Sunderpati was married about 15-16 years back to accused Sanchit Ram and her gona ceremony was performed about 8-9 years back from that day (his statement was recorded on 23.3.209) and she started living with her in-laws about 4-5 years back from that day. There was no demand for dowry by her husband or in-laws either at the time of her marriage, gona or thereafter. He has further stated that his sister used to remain disturbed as she did not have any issue despite leading matrimonial life for 3-4 years. She started living at Delhi with the accused persons at Railway Colony, Basant Nagar about six months prior to her death. On receipt of information regarding death of his sister, he came to Delhi. He has stated that his statement Ex.PW3/A was recorded 594 by the police but volunteered that he did not know the contents of his statement as he had not gone through the same nor the same was read over to him by the police before obtaining his signature. He did not know the reason why his sister had committed suicide. As this witness did not support the case of prosecution, he was cross examined at length by ld. Addl. PP for State but without any success.

6. PW-4 Sh. Sher Bahadur, another brother of the deceased Sunderpati has stated that his sister was married about 15-16 years back to accused Sanchit Ram and her gona ceremony was performed about 8-9 years back from that day (his statement was recorded on 23.3.2009). His sister Sunderpati started living with her in-laws about 4-5 years back from that day. There was no demand of dowry by her husband or in-laws either at the time of her marriage, gona or thereafter. His sister used to remain disturbed as she did not have any issue despite leading matrimonial life for 3-4 years and she started living at Delhi with the accused persons at Railway Colony, Basant Nagar about six months prior to her death. On receipt of information regarding death of his sister, he came to Delhi alongwith her brother. He identified the dead body of his sister Sunderpati at LHMC regarding which his statement Ex.PW4/A was recorded. He has further stated that after postmortem, the 595 dead body was handed over to him and his brother Man Bahadur vide memo Ex.PW3/C. As this witness did not support the case of prosecution, he was cross examined by ld. Addl. PP for State but could not extract anything incriminating against any of the accused.

7. PW-5 Sh. Ramu, cousin of deceased Sunderpati has stated that he did not remember the date, month or year but one day Man Bahadur, his cousin telephoned him that his sister Sunderpati had committed suicide by hanging and he should go and inquire about the matter. At that time he was residing at Arya Pura, Roshan Ara Road, Delhi. When he reached there, he found all the four accused persons present there and came to know that Sunderpati had committed suicide. He has further stated that Sunderpati was mentally disturbed for not being able to bear a child. He told Man Bahadur on phone that there was nothing suspicious and she used to remain mentally disturbed for not having a child and he asked Man Bahadur to come to Delhi. This witness was cross examined by ld. Addl. PP for State but without any success.

8. In this case, as all the material witnesses i.e. PW-3 Sh. Man Bahadur, the complainant and brother of deceased, PW-4 Sh. Sher Bahadur, another real brother of deceased and PW-5 Sh. Ramu, cousin of deceased have not supported the case 596 of the prosecution at all, no useful purpose would have been served by examining the police officials and doctor, hence PE was closed by order of the Court.

9. PW-3 Sh. Man Bahadur, the complainant and real brother of the deceased and PW-4 Sh. Sher Bahadur, another real brother of the deceased and PW-5 Sh. Ramu, cousin of the deceased, all of them have stated that Suderpati used to remain disturbed as she did not have any issue despite leading matrimonial life for 3-4 years and have not deposed anything incriminating against the accused persons. As nothing incriminating has come on record which could be put to the accused persons, their statement under Sec. 313 CrPC was also dispensed with. In the circumstances, all the four accused are acquitted of the charge. File be consigned to Record Room.


Announced in the open Court
                                    ( PRATIBHA RANI )
21.4.2009                           ASJ-01 (Central)/Delhi




                              597
         IN THE COURT OF SMT. PRATIBHA RANI,
         ADDL. SESSIONS JUDGE-01(CENTRAL),
              TIS HAZARI COURTS, DELHI

SC No.203/07

State                Vs       Raghu Raj Singh Yadav,
                              S/o Sh. Sher Singh,
                              R/o Village Kupa,
                              Distt Ferozabad, U.P.

                              FIR No.283/05
                              U/S : 363/376 IPC
                              PS : Adarsh Nagar

                              Date of Institution : 18.8.05
                              Arguments heard on : 20.4.09
                              Order pronounced on : 23.4.09

                              ***
JUDGMENT

In brief, the case of the prosecution is that complainant Sh. Dinesh, S/o Sh. Hoti Ram Diwakar, elder brother of the prosecutrix (name of the prosecutrix withheld to conceal her identity) lodged a complaint to the effect that accused who was seen by him taking rounds of the gali, induced his sister aged about 13 years and when he checked in the village to know the whereabouts of the accused, he was also found missing from his house. On the basis of this complaint, FIR No.283/05 under Sec.363 IPC was recorded. Subsequently the prosecutrix was recovered when she was going alongwith the accused and on the basis of statement made by her that accused had also committed 598 rape on her, Sec.376 IPC was also added. Accused as well as the prosecutrix were medically examined and after completion of investigation, accused was sent to face trial for the offence punishable under Sec.363/376 IPC.

2. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

3. After hearing on the point of charge, accused was charged on 24.04.2007 for the offence punishable under Sec.363/366/368/376 IPC to which he pleaded not guilty and claimed trial.

4. Prosecution has examined twelve witnesses in all in support of its case. Accused has also been examined under Section 313 CrPC to enable him to explain about the evidence appearing against him in which he has denied the case of prosecution and stated that he belongs to Yadav Community while the victim belongs to Schedule Cast Community and they used to reside in the same village. Due to community difference, he had been falsely implicated in this case and he did not commit any rape on the victim.

5. I have heard Sh S.C. Sharma, Addl PP for the State and Sh. Anubhav Dubey, counsel for the accused and also gone through the record carefully.

6. PW-1 is the prosecutrix who has stated that on 599 4.6.2005 he was residing in Rameshwar Nagar, Azad Pur alongwith her brother Dinesh and his wife. She has further stated that on 4.6.2005 at about 4.00 pm accused came to their house and at that time she was alone in the house as his brother and bhabhi had gone for work. She has further stated that accused was also resident of her village Firozabad where he lived opposite her house. Accused told her that he would take her for sight seeing, so she accompanied him. The accused took her in a bus and when she asked him as to where they had reached, he told her that they had reached Jaipur. Prosecutrix has further stated that initially when accused asked her to accompany him, she refused but on assurance of accused that they would return by the evening, she accompanied him. The accused took her to several places and in different parks in Jaipur. She has further stated that accused had committed sexual intercourse (galat kaam kiya) with her against her wish and consent. She had asked the accused not to commit sexual intercourse with her but he continued with the act. She has further stated that on 21.6.2005 while they were returning, her brother alongwith police met them at Firozabad. Police arrested the accused and recorded her statement and they both were brought to Delhi. She was medically examined in the hospital and her salwar and underwear were taken into possession by the 600 doctor at the hospital. She has further stated that on 22.6.2005 he was produced in the Court and her statement under Sec.164 CrPC was recorded which is Ex.PW1/A. Thereafter she has been kept in Nari Niketan for one day before recording her statement under Sec.164 CrPC but after recording her statement under Sec.164 CrPC, she had come back to the house of her brother. She has also stated that she studied upto 5th class at Firozabad and has identified her signature on the seizure memo Ex.PW1/B at point-A.

7. PW-2 Sh. Dinesh is the brother of the prosecutrix whom she visited at Azad Pur. He has stated that he was driver by profession and his wife was working in a factory. On 28.5.2005 he had brought his sister i.e. the prosecutrix from his village Turri Kuppa, Distt. Firozabad to Delhi and at that time, she was 13 years old. On 3.6.2005 he had seen accused Raghu Raj Singh Yadav roaming in their Gali. On 4.6.2005 he alongwith his wife had left for their respective working places leaving his sister alone in the house and when he returned in the evening, he found his sister missing from the house. He made inquiries from the neighbourers as well as his relations but could not find his sister. He also made inquiries from his village and learnt that the accused was also missing since 3.6.2005. He lodged the missing report on 3.6.2005 and then on 12.6.2005, he 601 lodged a complaint against accused which is Ex.PW2/A. He has further stated that on 22.6.2005 he came to know that on 21.6.2005 a police party from Delhi apprehended the accused at Firozabad and at that time his sister was in the company of accused. He has also produced the school certificate of his sister which is Ex.P1.

8. PW-6 Sh. Babloo is elder brother of the prosecutrix. He has stated that on 21.6.2005 he alongwith the police went to Ferozabad in search of his sister. One local police official namely Suraj Pal was also taken by Delhi Police for assistance and they went to the house of accused Raghu Raj Singh in village Kurli Kupa but accused was not found present there. He has further stated that when they were returning, on the way in Ferozabad, he saw the accused and his sister going together and he pointed out them to the police and they were taken into custody. He has identified his signature at point-C on the recovery memo Ex.PW1/B. He has further stated that accused Raghu Raj Singh was also arrested vide arrest memo Ex.PW3/A and his personal search was conducted vide memo Ex.PW3/B and thereafter they alongwith the accused and his sister came back to Delhi.

9. PW-9 HC Azad Singh is the Duty Officer who recorded the FIR No.283/05 and proved the carbon copy of the 602 same as Ex.PW8/B. He has also proved the endorsement Ex.PW9/B made by him on the rukka. He has stated that after the registration of the case, the copy of FIR and original rukka were sent to ASI Attar Singh through Ct. Nikka Ram as ASI Attar Singh had left for the spot.

10. PW-5 Ct. Nikka Ram has stated that on 12.6.2005, the Duty Officer handed over copy of FIR and original rukka to him which he delivered to ASI Attar Singh at H. No.B-73, Rameshwar Nagar, Gali No.5, Azad Pur, Delhi. Thereafter the IO ASI Attar Singh joined him in the investigation and he alongwith IO and complainant searched for the prosecutrix and the boy in the area of Rameshwar Nagar and Kewal Park but they could not be traced out.

11. PW-10 HC Shanti Swaroop is the MHC(M). He has stated that on 22.6.2005 ASI Attar Singh deposited five sealed pullandas alongwith two sample seals regarding which he made entry at serial No.3013/05. On 16.8.2005 the case property was sent to FSL, Rohini through Ct. Praveen vide RC No.62/21/05 and on 12.5.2006 the result was received through ASI Attar Singh in respect of which he made entry in register No.19. He has proved the copy of relevant entries in register No.19 and copy of RC as Ex.PW10/A and B.

12. PW-4 HC Praveen took the case property i.e. five 603 sealed pullandas to FSL, Rohini vide RC No.62/21 and after depositing the case property there, he returned to the PS and handed over the receipt to the MHC(M).

13. PW-7 Ct. Chetan took the accused Raghu Raj Singh to BJRM Hospital for his medical examination and after the medical examination, the doctor handed over the sealed pullandas allegedly containing undergarments, blood sample and semen alongwith sample seal, which he handed over to the IO who seized the same vide memo Ex.PW7/A.

14. PW-12 Lady Ct. Saroj has stated that on 22.6.2005 she was on night duty at PS Ashok Vihar and she was summoned at PS Adarsh Nagar. She went PS Adarsh Nagar and from there, she alongwith IO ASI Attar Singh took the prosecutrix to BJRM Hospital for his medical examination and after the medical examination, the doctor handed over the MLC No.06113/05 and sealed pullandas allegedly containing undergarments and vaginal swab alongwith sample seal which were seized by the IO vide memo Ex.PW8/C.

15. PW-11 Dr. Shipra Rampal has examined the X-ray plates of the prosecutrix and after the examination, she prepared her report Ex.PW11/A as per which the estimated bony age of prosecutrix was between 19 to 20 years on the date of examination i.e. 23.6.2005.

604

16. PW-3 HC Murari Lal remained associated with IO ASI Attar Singh (PW-8) during the investigation of this case and went to Village Firozabad alongwith IO and brother of the prosecutrix from where accused was arrested and prosecutrix was recovered. PW-8 ASI Attar Singh, the IO has stated that on 12.6.2005 Sh. Dinesh Diwakar came to the PS and got recorded his statement Ex.PW2/A and put his signature at point-A which was attested by him (PW-8) vide his signature at point-B. Thereafter he made endorsement Ex.PW8/A on the said statement and produced the same before the Duty officer and got registered the case vide FIR No.283/05, carbon copy of which is Ex.PW8/B. He has further stated that as he alongwith the complainant made efforts to trace out the girl but could succeed, he got flashed the message regarding missing of prosecutrix. He also made efforts to trace out the girl at village Kupa, Distt. Firozbad, UP but she could not be traced there also. He has further stated that on 21.6.2005 he alongwith Ct. Murari lal and PW-6 Sh. Babloo, brother of prosecutrix went to PS Line Park, Ferozabad, UP from where HC Suraj Pal was joined in the investigation and thereafter they all reached village Kupa, PO Kurri, PS Line Park, Ferozabad and a raid was made at the house of accused Raghuraj Singh but prosecutrix could not be recovered from there. They came back to City Ferozabad and 605 when they were going to PS Line Park, the prosecutrix was seen with the accused and on the identification of Babloo the prosecutrix was recovered from the custody of the accused regarding which recovery memo Ex.PW1/B was prepared. The accused was interrogated and arrested vide arrest memo Ex.PW3/A and his personal search was conducted vide Ex.PW3/B. He recorded the statement of prosecutrix, HC Suraj Pal, Babloo and Ct. Murari Lal. Thereafter the accused as well as the prosecutrix were brought to Delhi and the prosecutrix was handed over in the custody of L/Ct. Saroj on 22.6.2005. The accused and the prosecutrix were got medically examined in BJRM Hospital through L/Ct. Saroj and Ct. Chetan and he also accompanied them to the hospital. After medical examination doctor handed over the sealed pullandas which were seized vide memo Ex.PW7/A and Ex.PW8/C. Thereafter the pullandas were deposited in the malkhana. He also collected the MLC of prosecutrix and the accused which are Ex.PW8/D and E. He has further stated that on 24.6.2005 he moved application Ex.PW8/F for recording the statement u/s 164 CrPC of the prosecutrix. The statement of the prosecutrix was recorded by Sh. S.K. Gautam, MM and he obtained the copy of the statement vide his application Ex.PW8/G. He also collected the SLC of the prosecutrix from her school which is Ex.P1. On 16.8.2005 the 606 exhibits were sent to FSL, Rohini through Ct. Praveen Kumar and later on report Ex.PX and PY from FSL were collected and filed in the Court and after completion of investigation, chargesheet was filed.

17. On behalf of State, it has been contended by Sh. S.C. Sharma, Addl. PP that the prosecutrix was a minor at the time when she was taken by the accused and it has been proved by the brother of the prosecutrix that at the time of recovery, she was with the accused. Ld. Addl. PP has further contended that the age of the prosecutrix was 13 years as per school certificate i.e. SLC Ex.P1 in which the date of birth of the prosecutrix is mentioned as 2.3.93 and it is established that at the time of occurrence, she being 13 years of age, her consent becomes immaterial. It has been further contended that in view of the statement of the prosecutrix that accused had taken her away and committed rape on her, prosecution has been able to prove its case against the accused and he be convicted.

18. On behalf of accused, Sh. Anubhav Dubey, Advocate has contended that the prosecutrix was major at the time of incident and the SLC on which the prosecution is relying is based on the entries which are not verified and there is nothing on record that the date of birth of prosecutrix was recorded in the School on the basis of any registration with the authority 607 maintaining birth and death record. Ld. Counsel for the accused has further contended that the prosecutrix has accompanied the accused of her own and she was major at that time as is clear from the ossification test report giving her age between 19 to 20 years and in the circumstances that she had accompanied the accused to Jaipur of her own, remained there with him and then accompanied him to Ferozabad, UP i.e. their village and throughout she did not complain to anyone, is itself sufficient to prove that she was a consenting party and had eloped with the accused of her own and in these circumstances, accused deserves to be acquitted. Ld. Counsel for the accused has relied upon Ravinder Singh Gorkhi Vs. State of U.P. 2006 (2) JCC 856 in support of his contentions.

19. I have considered the rival contentions and carefully gone through the record. Although Ld. Addl. PP for State has claimed the prosecutrix to be minor on the basis of school certificate Ex.P1 but at the same time, it cannot be ignored that prosecutrix was sent for medical examination by the prosecution only and the ossification test report Ex.PW11/A prepared by PW-11 Dr. Shipra Rampal proves her age between 19 to 20 years. Although the prosecutrix has stated that accused offered to take her for sight seeing and she accompanied him and that accused was known to her as his house is just opposite her house 608 in the village, itself suggest that she was well known to the accused much prior to the incident. It has come in the statement of complainant Sh. Dinesh that he brought Rajni to Delhi just a few days before this incident i.e. on 28.5.2005 and she had eloped with the accused just within a week from her coming to Delhi. In normal course, the prosecutrix would not have left the house in the absence of her brother and bhabhi with the accused unless she herself wanted to accompany the accused. The place where the prosecutrix was residing with his brother and bhabhi is a congested area and if the accused was taking her against her will or forced her to accompany him for sight seeing, she could have asked him to wait till she obtain the permission of her brother and bhabhi with whom she was residing. The mere fact that she left the house of her own when none was present at the home and preferred to accompany the accused, can only be in the circumstances that she was willing to go with the accused. It is also come on record that accused is resident of Ferozabad, U.P. and at the time of going with the accused, the prosecutrix was residing at Rameshwar Nagar, Azad Pur, Delhi. The accused had no relation in Delhi and if at all he had come to Azad Pur to the house of the prosecutrix, it could only be for her and she has found it convenient to accompany the accused from Delhi as none was at home to keep a watch on her. 609

20. I am of the opinion that prosecutrix had accompanied the accused of her own and at that time she was major. She had gone to Jaipur with the accused where she claimed that accused had sexual intercourse with her but she did not complain to anyone about the accused taking her forcibly or committing rape on her. Rather it has come in her statement that accused run short of money so he had to return to the village on the advice of prosecutrix. This fact further proves that whatever had happened, the prosecutrix was consenting party to that and it was she who brought him to the village and even after returning to the village, she did not go to her home and was roaming with the accused on the road when her brother Babloo noticed them and police recovered her. Even at that time, she was just enjoying the company of the accused and PW-6 Sh. Babloo, her brother has nowhere stated that his sister was under any kind of fear or pressure of the accused at that time. In the case S. Varadarajan Vs. State of Madras AIR 1965 SC 942 (V 52 C 150), the Apex Court has observed as under :-

"But when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) from the house of the relative of the father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the Sub-Registrar's Officer where they get an agreement to marry registered, and there is no 610 suggestion that this was done by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have 'taken' her out of the keeping of her lawful guardianship, that is, the father.
The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances, no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him."

The Apex Court noting the distinction between taking and allowing a minor to accompany a person, held that "no case of kidnapping was made out".

21. Now reverting to the facts of the present case, when the prosecutrix has attained the age of discretion and herself has left the house and accompanied the accused when her brother and bhabhi were away to their work places and has gone to Jaipur alongwith him and also to their native village and during that period, she also did not complain to anyone about her taking forcibly by the accused, in view of the above judgment, it cannot be said that the accused had kidnapped her with intent that she may be compelled to marry against her will and may be forced or seduced to have illicit intercourse or committed rape on her.

17. In view of above discussion, the prosecution has not 611 been able to prove its case against the accused beyond reasonable doubt. Hence, accused Raghu Raj Singh Yadav is acquitted of the charge. File be consigned to Record Room.


Announced in the open Court

23.4.2009                           ( PRATIBHA RANI )
                                    ASJ-01(Central)/Delhi




                              612
         IN THE COURT OF SMT. PRATIBHA RANI,
         ADDL. SESSIONS JUDGE-01(CENTRAL),
              TIS HAZARI COURTS, DELHI


SC No.14/07


State                Vs.      Mohd. Iftakhar Alam @
                              Abdulla @ Khalil,
                              S/o Sh. Mohd. Inamul Haque,
                              R/o Village & P.O. Mehmooda,
                              PS Khudaganj, Distt. Nalanda,
                              Bihar.


                              FIR No.4/07
                              U/S : 121/121-A/122/123/120-B
                              IPC r/w Sec.4/5 of Explosive
                              Substances Act and under Sec.
                              18/20/21/23 of Unlawful
                              Activities (Prevention)
                              Amendment Act, 2004
                              PS : Special Cell

                              Date of Institution : 24.4.07
                              Arguments heard on : 6.4.09
                              Order pronounced on : 20.4.09

                              ***

JUDGMENT

In brief, the case of the prosecution is that in January, 2007, in the second week, information was received from Central Intelligence Agency about the planning by banned Militant Organisation Lashkar-e-Tayeba (LeT) to carry out terrorist activities in the Capital on Republic Day and for 613 carrying out these activities, they were trying to supply arms, ammunitions and explosive material from Bihar area. Under the supervision of ACP Sh. Sanjeev Yadav, team led by Inspector Mohan Chand Sharma was formed to develop the information. During the development of the information, it was revealed that one Iftakhar, resident of Nalanda, Bihar having code name Abdulla had been deputed by the Pakistan based Commanders of LeT to supply the consignment of arms, ammunitions and explosive material to disrupt Republic Day Celebration, hence sources were deployed in Nalanda, Bihar. On 25.1.2007 at about 11.30 am, SI Ramesh Lamba received specific information through secret informer that the person having code name Abdulla would come to the Bus Stop in front of Seelam Pur Metro Station at about 3.30 pm to deliver the consignment and if a raid was conducted, he could be apprehended. On the basis of this information, a raiding party was constituted and raid was conducted. The accused was apprehended from near bus stop, Seelam Pur Metro Station. At that time, accused was carrying one black colour bag on his shoulder which was searched in the presence of two public witnesses. During search of bag, one steel box (container) kept under the layer of clothes was recovered which was checked. From that steel box, three polythenes containing small quantity of dry fruits were 614 recovered and under these polythenes, one another transparent polythene was recovered which was found containing explosive material in semi liquid form. One more polythene was also recovered which was kept under the clothes in the bag wrapped in dark blue colour underwear and that polythene was found containing two electric detonators wrapped in cotton. Necessary proceedings regarding sealing and seizure of recovered articles were done and accused was arrested and after completion of investigation, accused was sent to face trial for the offences punishable under Sec.121/121-A/122/123/120-B IPC r/w Sec.4/5 of Explosive Substances Act and under Sec.18/20/21/23 of Unlawful Activities (Prevention) Amendment Act, 2004.

2. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

3. After hearing on the point of charge, accused was charged on 13.9.2007 only for the offence punishable under Sec.4 & 5 of Explosive Substance Act, 1908 to which he pleaded not guilty and claimed trial.

4. Prosecution has examined eleven witnesses in all in support of its case. Accused has also been examined under Sec.313 CrPC to enable him to explain about the evidence appearing against him in which he has denied the case of prosecution and stated that he was arrested on 21.1.2007 from 615 Jamshed Pur, outside Gangotri Hospital where his wife was admitted for delivery and after his arrest, he was brought to Delhi on 23.1.2007 by Calcutta-Delhi Rajdhani Express and later on, falsely implicated in the present case. Accused has not led any evidence in his defence.

5. I have heard Sh. S.C. Sharma, Addl. PP for the State and Sh. K. Ansari, counsel for accused. On behalf of accused, written submissions have also been filed by Sh. K. Ansari, Advocate. I have carefully gone through the written submissions filed on behalf of accused as well as the entire record.

6. In this case, PW-1 SI Ramesh Lamba, PW-3 Sh. Ashish & PW-5 Sh. Bimlesh Kumar Tripathi - the public witnesses, PW-4 SI Rajinder Shehrawat and PW-11 ACP Sanjeev Kumar Yadav are the material witnesses regarding the apprehension and arrest of the accused and recovery of explosive substance from him.

7. PW-2 ASI Raj Singh is the Duty Officer who has recorded the FIR of this case and proved the copy of the same as Ex.PW2/A and also the endorsement made by him on the rukka as Ex.PW2/B.

8. PW-6 Sh. A. Dey, Principal Scientific Officer-cum- Assistant Chemical Examiner has examined the sample of explosive substance and two electronic detonators recovered in 616 this case and proved the report given by him as Ex.PW6/A as per which the lump of brown coloured putty like material is a high explosive mixture and the two live electric detonators are the explosive substance as defined in the Explosive Substance Act, 1908.

9. PW-8 Sh. K.R. Mehndireta, Assistant Director, Department of Consumer Affairs, Govt. of NCT of Delhi has proved the sanction order as Ex.PW8/A given by him for prosecuting the accused for the offences punishable under Sec.121/121-A/122/123/120-B IPC and under Sec.17/18/20/23 of Unlawful Activities (Prevention) Act. PW-9 HC Sushil Kumar was given up by ld. Addl. PP being repetitive in nature.

10. PW-10 ASI Praramjeet Singh is the Incharge, Malkhana, Special Cell. He has stated that on 25.1.2007 ACP Sanjeev Kumar Yadav deposited six sealed parcels sealed with the seal of RCL and marked as A, S1, S2, B, C, D, one CFSL form and two copies of seizure memo i.e. seizure memo of articles recovered from the accused and the personal search of the accused, regarding which he made entry at serial No.937 in register No.19. He has further stated that on 27.2.2007 two sealed parcels sealed with the seal of RCL alongwith CFSL form were sent to CFSL, Lodhi Road, New Delhi through HC Rustam Ahmed vide RC No.29/21, regarding which he made 617 endorsement against the said serial number in register No.19. On 26.3.2007 two sealed parcels sealed with the seal of CFSL, Lodhi Road was received back through Ct. Rajeev Kumar from CFSL, Lodhi Road, Delhi regarding which endorsement was made in register No.19. He has proved the photocopies of the relevant entries as Ex.PW10/A and B. PW-7 HC Rustam Ahmed took the case property to CFSL, CBI CGO Complex vide RC no.29/21.

11. PW-1 SI Ramesh Lamba has stated that in the second week of January, 2007 a secret information was received from Central Intelligence Agency that Pakistan based Commanders of banned Militant Organisation Lashkar-e-Tayeba were planning to cause a militant activity in Delhi on the occasion of Republic Day and in the process they were sending arms, ammunitions and explosive material from Patna (Bihar). In order to develop this information, a team led by Inspector Mohan Chand Sharma was constituted under supervision of Sh. Sanjeev Yadav, ACP, Special Cell and informers were deployed and sources were developed in Delhi and Bihar area and in Nalanda (Bihar) also. He has further stated that during the development of the information, it was revealed that one Iftakhar resident of Nalanda (Bihar) having code name Abdulla has been deputed by Pakistan based Commander of Lashkar-e-Tayeba to supply 618 consignment of arms, ammunitions and explosive material in order to cause destructive activity on Republic Day. On 25.1.2007 at about 11.30 am, while he was present in the office of Special Cell, he received specific information that the said Abdulla would come at Bus Stop in front of Seelam Pur Metro Station at about 3.30 pm to deliver the consignment of arms, ammunitions and explosive material to another Lashkar-e- Tayeba militant and if a raid is conducted the said Abdulla could be overpowered with his associates and alongwith the above material. This information was reduced in writing and also discussed with the senior officers and as per their directions, a team was constituted and the raiding team duly equipped with arms and ammunitions, bullet proof jackets, IO Kits etc. left the office of Special Cell at about 2.30 pm and reached Seelam Pur Metro Station at about 3.00 pm where the informer met them at a pre-decided place. Efforts were made to join some public witnesses but none agreed and thereafter without wasting further time, all the members of the raiding team, were briefed and deployed around the Bus Stop in front of Seelam Pur Metro Station. He has further stated that at about 3.30 pm, a person was seen coming on foot from Shahdara side who was carrying one black colour shoulder bag on his right shoulder and informer identified him as Iftakhar @ Abdulla i.e. the accused. The 619 accused waited at the Bus Stop for some time but as none turned up to meet him, he started proceeding towards Shahdara side and on the signal given by Inspector Mohan Chand Sharma, accused was apprehended near the electric pole near Bus Stop in front of Seelam Pur Metro Station. Accused was asked about the reason of his presence there and the contents of his bag. The public persons gathered there and out of them, on being requested, two public persons whose names were revealed as Ashish and Bimlesh Kumar Tripathi volunteered to join the search. The bag was checked and it was found containing one steel box/container concealed beneath the layers of clothes. The steel box was opened and it was found containing three polythenes having dry fruits i.e. Kaju, Kishmish and Badaam in each polythene and under these three polythenes, one transparent polythene was also recovered containing explosive material in semi liquid form. On weighing, the explosive material was found to be 2.5 Kg. Beneath the steel box, one more polythene containing two electric detonators wrapped in cotton which was concealed under the layers of the clothes in the same bag, were also recovered. Out of the recovered explosive material, two samples of 10 grams each were taken out and kept in two plastic containers and thereafter the plastic containers were kept in cloth pullanda which were marked as S1 and S2 and sealed with the 620 seal of RCL. The remaining 2.480 Kg explosive material alongwith transparent polythene was kept in separate cloth pullanda and marked as Ex.A and sealed with the seal of RCL. The dry fruits polythenes were also kept in the same steel box which was kept in the same steel box and the steel box was kept in separate cloth pullanda and marked as Ex.B and sealed with the seal of RCL. The recovered electronic detonators were again wrapped in cotton and thereafter kept in plastic container which was kept in cloth pullanda and sealed with the seal of RCL and marked as Ex.C. The clothes were again kept in the same bag which was also sealed with the seal of cloth stripes and marked as Ex.D. Form CFSL was filled and seal after use was given to SI Rajinder Shehrawat and case property was taken into possession vide memo Ex.PW1/A. Accused Iftikhar was also formally interrogated at the spot who revealed that he was a Pak Trained Militant of Lashkar-e-Toiba and he had received the recovered consignment from one Hashim to deliver the same to another Lashkar-e-Toiba Militant Shabir at bus stop in front of Seelam Pur Metro Station and that he had come to Delhi by Train from Patna. Thereafter he prepared a rukka Ex.PW1/B and handed over the same to HC Sushil Kumar for registration of the case and further investigation of the case was handed over to ACP Sanjeev Kumar Yadav as per directions of senior 621 officers. This witness has identified the case property i.e. explosive material Ex.P1, three polythenes containing Kishmish, Kaju and badaam and steel box containing dry fruit polythenes as Ex.P2 (Colly), sample of recovered explosive material as Ex.P3, a white colour plastic dibbi containing two detonators wrapped in cotton as Ex.P4/1-2, the bag and the clothes as Ex.P5 to be the same which were recovered from the accused. PW1 has further stated that he handed over the case property and the accused alongwith the documents prepared by him to ACP Sanjeev Kumar Yadav for further investigation. ACP Sanjeev Kumar Yadav inspected the site and prepared the site plan on his pointing out.

12. PW3 Sh. Ashish is a public witness who has stated that on 25.1.2007 at about 3.45 pm he was present in his RTV at Seelam Pur Metro Station and was taking tea. He heard some noise and saw that one person was running and some other persons were chasing him and that person was apprehended. He and some other persons inquired about the matter and one person informed that they were police officers from Special Cell and the person apprehended was a terrorist. He has also stated that the person who was apprehended was carrying a black colour bag and the Special Cell police asked from him about the contents of the bag on which he became nervous and started looking here 622 and there. As that person did not reply about the contents of the bag, the Special Cell police removed the bag from the shoulder of that person and requested the persons collected there to join in search of the bag. He and one Mr. Tripathi volunteered to join the search of the bag and in their presence one Sh. Ramesh Lamba, opened the bag which was found containing three black colour polythenes. One polythene was having kaju, another was having kishmish and third one was having badaam. One steel box was also there in the bag. PW3 Ashish has further stated that after opening the steel box, one black colour polythene was taken out from that steel box and that polythene was found containing some wet substance, the colour of which he did not remember and that substance was weighed and found to be 2½ kg. Two samples of 10 grams each were separated from the recovered substance and kept in two plastic dibbis. Thereafter both the dibbis were converted into pullanda and sealed with the seal of RCL. The remaining substance was kept in the same polythene and it was also converted into pullanda which was also sealed with seal of RCL. In the bag, there was one blue colour underwear in which two detonators were found kept in cotton. Those detonators were kept in two separate pullandas and sealed with the seal of RCL. The dry fruits which were recovered from the bag were also kept in one pullanda and 623 sealed with the seal of RCL and seal after use was given to another police official Mr. Rajinder Shehrawat. He has identified his signature on seizure memo Ex.PW1/C. This witness has also identified that apprehended person as accused Mohd. Iftakhar Alam. He has further stated that on interrogation, the accused told that he had brought the said substance from Bihar which was given to him by Hashim for delivery to Sabir at the said Metro Station. He has also stated that his statement was recorded by the police at the Metro Station. He has identified the case property i.e. explosive material Ex.P1, three polythenes containing Kishmish, Kaju and badaam and steel box containing dry fruit polythenes as Ex.P2 (Colly), sample of recovered explosive material as Ex.P3, a white colour plastic dibbi containing two detonators wrapped in cotton as Ex.P4/1-2, the bag and the clothes Ex.P5 to be the same which were recovered from the accused.

13. PW5 Sh. Bimlesh Kumar Tripathi, another public witness has stated that on 25.1.2007 at about 3.45 pm he was present at Seelam Pur Metro Station as he was working as security guard in Parshavnath Metro Mall which was under construction at that time. He heard some noise and saw that one person was running and some other persons were chasing him. The persons who were chasing, apprehended the person who was 624 seen running. Many persons collected there and the person who was apprehended was revealed a terrorist and the persons who apprehended him were found to be police officers of Special Cell. The accused was carrying a black colour bag and the police asked from him about the contents of the bag on which he became nervous and started looking here and there and did not reply about the contents of the bag. The Special Cell police removed the bag from the shoulder of the accused and on the request of Special Cell police he and one Mr. Ashish joined the search of the bag. In their presence one Special Cell police officer whose name was revealed as Ramesh Lamba, checked the bag which was found containing some clothes and under the clothes there was a steel box. PW5 has also stated that the said steel box was opened and found containing three polythenes, each polythene containing kaju, kishmish and badaam and one another white transparent polythene was recovered from under the above three polythenes which was found containing another transparent polythene containing some wet substance of black colour which was weighed and found to be 2½ kg. Two samples of 10 grams each were separated from the recovered substance and kept in two black colour plastic dibbis which were converted into pullanda and sealed with the seal of RCL. The remaining substance was kept in the same polythene and was also 625 converted into pullanda which was also sealed with seal of RCL. PW5 has further stated that in the bag, there was one dark blue colour underwear in which there was one polythene which was found containing two detonators kept in cotton. Those detonators were kept in two separate pullandas and sealed with the seal of RCL. The dry fruits which were recovered from the bag were also kept in the same steel box and one pullanda was prepared and sealed with the seal of RCL and seal after use was given to SI Shehrawat. PW5 Bimlesh Kumar Tripathi has further stated that on interrogation, the accused disclosed that the said articles were given to him by one person at Patna, Bihar which he was to deliver to one Sabir at the said Metro Station. He has identified his signature at point D on seizure memo Ex.PW1/A. He has also identified the case property i.e. explosive material Ex.P1, three polythenes containing Kishmish, Kaju and badaam and steel box containing dry fruit polythenes as Ex.P2 (Colly), sample of recovered explosive material as Ex.P3, a white colour plastic dibbi containing two detonators wrapped in cotton as Ex.P4/1-2, the bag and the clothes Ex.P5 to be the same which were recovered from the accused.

14. PW-4 SI Rajinder Shehrawat who was also member of the raiding party and to whom the seal was given, has also 626 deposed on identical lines as that of PW-1 SI Ramesh Lamba and corroborated and supported the testimony of SI Ramesh Lamba. He has identified the case property i.e. explosive material Ex.P1, three polythenes containing Kishmish, Kaju and badaam and steel box containing dry fruit polythenes as Ex.P2 (Colly), sample of recovered explosive material as Ex.P3, a white colour plastic dibbi containing two detonators wrapped in cotton as Ex.P4/1-2, the bag and the clothes Ex.P5 to be the same which were recovered from the accused.

15. PW-11 ACP Sanjeev Kumar Yadav is the IO of the case. He has stated that on 25.1.2007 further investigation of this case was marked to him and he reached the spot i.e. Bus Stop in front of Seelam Pur Metro Station where he found SI Ramesh Lamba alongwith other police officials present and he was handed over accused Mohd. Iftakhar Alam alongwith the documents prepared by SI Ramesh Lamba and the case property seized by him from accused Mohd. Iftakhar Alam. PW-11 has further stated that at the instance of SI Ramesh Lamba, he prepared the site plan Ex.PW11/A, arrested the accused vide arrest memo Ex.PW4/A, conducted his personal search vide memo Ex.PW4/B, recorded the statement of public witnesses and thereafter the raiding party alongwith the accused returned to the office of Special Cell where he deposited the case property 627 alongwith copy of seizure memo, personal search and form CFSL in the malkhana. PW-11 ACP Sanjeev Kumar Yadav has further stated that he interrogated the accused in the office of Special Cell and recorded his disclosure statement Ex.PW4/C and after getting the accused medically examined, produced him in the Court on the next day. He has further stated that on 28.1.2007 he alongwith other staff and accused left Delhi for Phulwari Shareef, Patna and reached there on 29.1.2007 where accused pointed out the house of his brother Hasnain. On 29.1.2007 the brother of the accused produced his election identity card regarding which his brother told that the accused had used the said identity card at the time of receiving money from Western Union, which was seized vide memo Ex.PW4/D and identity card is Ex.PA. On 30.1.2007 the accused led them to his in-laws house at Tata Nagar, Jamshedpur, Jharkhand and produced his passport Ex.PB which was seized in the presence one Nishad Ahmed vide memo Ex.PW4/E and thereafter they came back to Delhi. He has further stated that on 27.2.2007 two sealed parcels sealed with the seal of RCL alongwith CFSL form were sent to CFSL, Lodhi Road, New Delhi through HC Rustam Ahmed vide RC No.29/21 and later on, its report Ex.PW6/A was collected. He also wrote a letter to the Director, AML Compliance, South Asia for the verification of money transfer by 628 Western Union Money Transfer and the report received from there was filed in the Court by him vide his application Ex.PW11/B and the report is Ex.PW11/C. He also obtained the sanction under Sec.7 of Explosive Substance Act to prosecute the accused from DM/Divisional Commissioner of Delhi and under Sec.45 r/w Clause (i) of Sec. 2 of Unlawful Activities (Prevention) Act from the competent authority of Government of Delhi and the sanction orders are Ex.PW11/D and Ex.PW8/A respectively and after completion of investigation, he filed the chargesheet.

16. On behalf of prosecution, it has been contended by Sh. S.C. Sharma, Ld. Addl. PP that this is a case where apart from the police officials of Special Cell, two independent public witnesses have also deposed about the apprehension of the accused Mohd. Iftakhar Alam by the members of the raiding party and recovery of explosive substance and detonators from the possession of the accused apart from other items i.e. Dry fruits and clothes kept in a bag. It has been further contended that presence of these two public witnesses at the spot is duly established, they have identified the case property to be the same which was recovered from the accused in their presence at the spot and they had absolutely no motive to depose against the accused had he been an innocent person. Ld. Addl. PP has 629 further contended that accused is a resident of Nalanda, Bihar and the officials of Special Cell hardly had any motive to falsely implicate him in this case as they were not even knowing him personally and had no enmity with him. Ld. Addl. PP has further contended that the defence of the accused about his being taken away by SI Ramesh Lamba from Jamshed Pur is not supported by any documentary evidence and in the circumstances, the Court should believe the testimony of members of the raiding party and the public witnesses and convict the accused. It has also been contended that the colour of the explosive substance was not mentioned either in the rukka or in the seizure memo and if the public witness happened to describe that as of black colour semi-liquid and CFSL result described the same as brownish putty type, that itself is no ground to disbelieve the testimony of prosecution witnesses as it has come in the statement of all the witnesses that the substance recovered was in semi-liquid form and in the CFSL result, it is also mentioned as putty type and everybody had his own way of describing the colour and state of the substance i.e. Liquid, semi- liquid, putty type etc. but that itself does not cast any doubt about the substance as they identified Ex.P1 and the sample Ex.P3 to be the same which was recovered from the accused Mohd. Iftakhar Alam.

630

17. On behalf of accused, it has been submitted by Sh. K. Ansari, Advocate that in the instant case, the public witnesses joined by the prosecution are stock witnesses and there are material contradictions in the statement of prosecution witnesses regarding the colour of the substance and its state at the time of recovery i.e. Semi-liquid or putty type. It has also been contended that seal has not been handed over to the public witness but to one police officer namely SI Rajinder Shehrawat and that could only be with a view to tamper with the case property. It has also been contended that PW-3 Sh. Ashish could not remember the colour of the substance and he mentioned that substance was in black colour polythene but on opening the Court, it was found in transparent polythene and change of colour of polythene reflects tampering of the case property. As per PW-6 Sh. A. Dey, Principal Scientific Officer-cum-Assistant Chemical Examiner, if any substance is kept in any air tight container, then it will not change its shape and colour and it has come in the statement of PW-1 SI Ramesh Lamba that the substance was kept in air tight container. The CFSL result shows that the parcel contained lump of brown colour putty type material which again is a material contradiction. Similarly PW-4 SI Rajinder Shehrawat admitted that Ex.P1 and P3 were not black in colour and also not in semi-liquid form on the date of 631 his examination and he was confronted with his statement under Sec. 161 CrPC Ex.PW4/DA where he stated at portion A to A that from a transparent polythene, black colour explosive substance was recovered. Ld. Defence counsel has further contended that as per prosecution, secret information was received at 11.30 am but the raiding party left for the spot at 2.30 pm. The distance between the office of Special Cell and spot being about 16 kilometers, they could have left the office so late only when the accused was already with them otherwise they should have taken their position well in advance as accused could have turned up early also which also makes the prosecution case as only a show managed. Ld. Defence counsel has further contended that PW-5 Sh. Bimlesh Kumar Tripathi was a security guard who claimed the gate of Paras Nath Mall to be about 10 to 15 meters from the main entry gate of Seelam Pur Metro Station which is contrary to the version of PW-3 Sh. Ashish who stated that one boundary wall of Shopping Complex exists which does not have any gate on the side of Metro Station and if there was no gate towards Metro Station side, then how PW-5 Sh. Bimlesh Kumar Tripathi could be posted as Guard there and the witnesses are only stock witnesses as PW-5 was not asked to give the copy of his identity card to prove his employment with the Mall on the relevant date and time. Ld. 632 Defence counsel has further contended that accused was apprehended from Gangotri Hospital, Jamshed Pur on 21.1.2007 by SI Ramesh Lamba and his team and brought to Delhi on 23.1.2007 by Hawarah-Delhi Rajdhani Express. Although SI Ramesh Lamba admitted his visit to Patna, Bihar about a week or 10 days prior to this incident and also his visit to Jamshed Pur but Pw-11 ACP Sanjeev Kumar Yadav claimed that SI Ramesh Lamba did not go to Bihar in connection with this case and that prior to apprehension of the accused, no team was sent to Patna or Nalanda in Bihar and this concealment of visit of SI Ramesh Lamba to Bihar by the IO PW-11 ACP Sanjeev Kumar Yadav is deliberate and strengthen the defence of the accused. Ld. Defence counsel has also pointed out the discrepancies regarding the time when the team members left the spot or whether SI Ramesh Lamba left the spot earlier and contended that the prosecution has failed to establish its case against the accused. Rather accused has been able to prove his innocence and false implication with planted recovery and tampering with case property, hence he be acquitted.

18. I have carefully gone through the record and considered the rival contentions. First of all, I deal with the contention of ld. Defence counsel regarding tampering with the case property. In this regard, the rukka Ex.PW1/B and the 633 seizure memo Ex.PW1/A state that the explosive substance in semi-liquid form contained in a transparent polythene was recovered. The colour of the substance is not mentioned by PW-1 SI Ramesh Lamba. PW-4 SI Rajinder Shehrawat, in his statement Ex.PW4/DA, mentioned that from a transparent polythene, black colour explosive substance was recovered, which statement was recorded at the spot, it only leads to the conclusion that the IO has recorded the statement of witnesses as per version given by them without adding or suggesting anything to the witness. So far as contention of ld. Defence counsel that if the substance is kept in a air tight container, then as per CFSL Expert, its colour and shape cannot change, it cannot be ignored by the Court that when the substance was checked, two samples were drawn, the case property was weighed, sealed and seized, at that time it was not in air tight container and was exposed to normal air, temperature and pressure. In the CFSL result Ex.PW6/A, it is mentioned that at the time of opening the container, the seal was intact and tallied with the specimen seal. Not giving of seal to the public witness is not fatal to the case of prosecution for the reason that the person apprehended in this case was claimed to be a terrorist and heavy quantity of explosive substance alongwith detonators was recovered from him. In such type of cases, showing courage to join the search of 634 bag and recovery itself could have raised reasonable apprehension in the mind of public witnesses about their personal safety. In such circumstance, if seal is handed over to the public witness, the psychological effect on the mind of witness would be to consider the seal like keeping 'live bomb' which could risk his own life. Taking into consideration the nature of the offence, the social strata of the public witness, the seal could be safe in the custody of SI Rajinder Singh, who though member of the raiding party, had hardly any animus against the accused. Even if it is assumed for the sake of arguments that the case property had been tampered with in this case by the police officers of Special Cell and that is why the discrepancies are appearing regarding the colour and state of the recovered explosive substance, the tampering could have been done by the police officers to preserve the explosive substance in the same shape and colour in which it was recovered and in that situation, these discrepancies could not have occurred. Even as per ld. Defence counsel the tampering was done with a view to falsely implicate the accused and in that circumstance obviously tampering could not have been done by them to help the accused to seek acquittal on the ground that colour and state of the recovered substance changed when being produced in the Court for identification by the witnesses. If the contention of ld. 635 Defence counsel regarding tampering of the case property is accepted, then shape and colour of explosive substance would have remained unchanged till it was produced in the Court for the purpose of evidence.

19. Next question is whether the accused was brought from Jamshed Pur on 21.7.2007 by SI Ramesh Lamba and then shown to have been arrested from Bus Stope, Seelam Pur Metro Station on 25.1.2007. In this regard, it is relevant to mention that accused has failed to summon any record from Gangotri Hospital that his wife was admitted for delivery there and he was present within the vicinity of the hospital and was taking care of his wife. In normal circumstances, if a person goes missing from near the hospital, the wife or other family relations would make efforts to search him by contacting on his mobile phone or with the relations and if still not traced out, then report the matter to the police that the person had gone missing from Gangotri Hospital. No such evidence has come on record. The contention of ld. Defence counsel that SI Ramesh Lamba admits his visit to Jamshed Pur but ACP Sanjeev Kumar Yadav tried to hide it, has also not been correctly interpreted as ACP Sanjeev Kumar Yadav has specifically stated that SI Ramesh Lamba has not gone in connection with this case and SI Ramesh Lamba had nowhere stated that he had gone to Nalanda and Jamshed Pur in 636 connection with this case though he admits his visits to these places. Hence, the accused cannot take any benefit from the admission of SI Ramesh Lamba that he had gone to Bihar a week or 10 days prior to this case. Another contention of ld. Defence counsel that it was a stage managed show is falsified from the statement of two public witnesses who happened to witness the accused being chased by police officers of Special Cell and when they gathered to inquire as to what was happened, they came to know about the entire matter and when requested, agreed to join the recovery proceedings. How they happened to join the proceedings is also duly explained by the public witnesses as they saw accused being chased by Special Cell sleuths and resultant commotion drew their attention. When they inquired about the matter, on coming to know that accused was a terrorist apprehended by the Special Cell Officer who also wanted some public person to witness the search of the bag which accused was carrying on his shoulder, they volunteered. Both the public witnesses had given the circumstances in which they happened to be present at the time of apprehension of accused and search of his bag. None of them can be termed as stock witnesses as they never appeared as witness in any other case and PW-3 Ashish has stated that he was driving RTV No.DL-1V-A-0064 which ply on the route from Shiv Vihar, 637 Karawal Nagar to Seelam Pur Metro Station and at that time, he was present in his RTV and taking tea and when he joined the proceedings or search, the RTV was taken by some other driver and PW-5 has stated that he was working as Security Guard in Parshavnath Metro Mall which was under construction at that time and present there at the time of apprehension of the accused.

20. The contention of ld. Defence counsel that these witnesses are not trustworthy as Security Guard is not supposed to leave his place of duty or that copy of his identity card was not taken by the officers of Special Cell, is no ground to disbelieve the public witnesses for the simple reason that first of all it is difficult for police party to find independent public witnesses and if fortunately they happen to find public witnesses, during trial often it is noticed that public witnesses prefer to turn hostile under muscle/money power. Whenever a public witness is associated, he has to leave the work place/work in hand to discharge duty as good citizen.

21. So far as certain discrepancies regarding the colour of the polythene or of the substance is concerned, both these witnesses have identified the case property i.e. explosive material Ex.P1, three polythenes containing Kishmish, Kaju and badaam and steel box containing dry fruit polythenes as 638 Ex.P2 (Colly), a white colour plastic dibbi containing two detonators wrapped in cotton as Ex.P4/1-2, the bag and the clothes as Ex.P5 to be the same which were recovered from the bag of the accused. When the witnesses appear in the Court after lapse of certain time, they may not be able to recollect the sequence of events which had taken place unexpectedly long before. A public witness hardly gets any ooportunity to see the explosive substance and detonators with his own eyes as generally such news are read by them in newspaper only. There was every possibility for them to confuse about the colour of the polythene or colour of the substance but after seeing, correctly identified. So far as the occurrence is concerned, they have deposed in a natural and truthful manner as to what they had seen when accused was apprehended by the police officers of Special Cell. These minor discrepancies cannot be a ground to disbelieve their testimony especially when they had shown the courage to come forward and join the search of the bag knowing that the person apprehended was claimed to be a terrorist. In the case Zamir Ahmed Vs. The State 1996 Cri.L.J. 2354 while discussing the provisions of Section 3 of the Evidence Act, it was held as under:-

"It would be a hard nut to crack to find out a case which is bereft of embellishment, exaggeration, contradictions and inconsistencies. The said things are natural. Such contradictions and inconsistencies 639 are bound to creep in with the passage of time. If the witnesses are not tutored they would come out with a natural and spontaneous version on their own. The two persons on being asked to reproduce a particular incident which they have witnessed with their own eyes would be unable to do so in like manner. Each one of them will narrate the same in his own words according to his own perception and in proportion to his intelligence power of observation."

22. The discrepancies pointed out by ld. Defence counsel are insignificant and bound to occur due to lapse of time especially when the witness is not tutored. As the so called discrepancies do not go to the root of the case, the accused cnnot derive any benefit out of that. In the case Bharuda Broginbhai Harjibhai vs. State of Gujrat, AIR 1983 SC 753 it was held that discrepancies which do not go to the root of the matter and shake the basic version of the prosecution should not be attached undue importance. Their Lordships have enumerated following reasons for arriving at this conclusion :-

"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.
2) 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. Thus mental faculties, therefore, cannot be expected to be attuned to absorb the details.
3) The powers of observance differ from person to person, what one may notice, another may not. An object or movement might emboss image on one person's mind, whereas it might go unnoticed on the 640 part of another.
4) By and large people cannot accurately recall a conversation and reproduce the very words used by them on 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.
5) In regard to exact time of an incident or the time duration of an occurrence, usually, people make their estimates by guess-work at spur of moment, at the time of interrogation and one cannot expect people make very precise or reliable estimates in such matters. Again, it depends upon the time-sense of individuals which varies from person to person.
6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
7) A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix-up facts, get confused regarding sequence of events, or fill up details of imagination at the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved, though the witness is giving a truthful and honest account of the occurrence witnessed by him, perhaps it is a sort of psychological moment."

23. In another case State of U.P. vs. M.K. Anthony, AIR 1985 SC 48 following guidelines have been laid down by the Apex Court for the appraisal of the evidence :

"While appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole, appears to have a ring of truth. Once that impression is formed, it is 641 undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, draw backs and infirmities, pointed out in the evidence as a whole and evaluate them to find out whether, it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies of trivial matter, not touching the core of the case, hypertechnical approach by taking sentence torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of evidence as a whole."

Their Lordships further observed :

"Unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention, and reproduction differ with individuals. Cross-examination is an unequal dual between the rustic and refined lawyer."

24. In the case law reported as Ramesh Vs. State 1986, CR.L.J. 1101, it was held as under:

"In appreciating oral evidence, the question in each case is whether the evidence is truthful witness and whether there is anything to doubt his veracity in any particular matter about which he deposes, where the witness is found to be a untruthful on material facts that the end of the matter. Where the witness is found to be partly truthful or to spring from ........... tainted sources, the court may take the prosecution of seeking some corroboration, adequate and reasonable to meet the demands of the situation."

25. Reverting to the facts of the present case, testing the 642 testimony of two public witnesses on the touch stone of basic human probabilities, I find that intrinsic worth of their testimony remained unchallenged during cross examination and their version is natural, truthful and inspiring confidence. So far as testimony of police officials i.e. PW-1 SI Ramesh Lamba, PW-4 SI Rajinder Shehrawat and PW-11 ACP Sanjeev Kumar Yadav, who apprehended accused from Seelam Pur Metro Station is concerned, there is no reason to disbelieve their testimony as they were only discharging their duties without any animus towards the accused who was a total stranger to them in Delhi. In Catena of judgments, it has been held that testimony of police officials cannot be disbelieved merely for the reason that they may be interested in success of their case. In the case State of Kerala vs. M.M. Mathew and another, AIR 1978 SC 1571 it was held :-

"The evidence of the IO's cannot be branded as highly interested on ground that they want that the accused are convicted. Such a presumption runs counter to the well-recognised principle that prima- facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case."

26. In another case Sanjay Vs. NCT (2001) 3 SCC 190, the Apex court had observed that the mere fact that no independent witness was associated with recoveries is not a 643 ground and that the investigation officer's evidence need not always be disbelieved and that of course, closer scrutiny of evidence is what is required.

27. In the present case also as PW-1 SI Ramesh Lamba, PW-2 SI Rajinder Shehrawat and PW-11 ACP Sanjeev Kumar Yadav had absolutely no reason to plant the explosive and detonators on the accused to falsely implicate in this case. It has already been observed that version of the accused that he was brought by SI Ramesh Lamba from Gangotri Hospital in Jamshed Pur on 21.1.2007 is not even probable as the public witnesses themselves had seen the accused being chased and apprehended by the police officer of Special Cell. Secondly the arrest memo Ex.PW4/A shows the date and time of arrest as 25.1.2007 at 9.00 pm and intimation of his arrest has been given Sh. Nishat Ahmed, brother-in-law on phone No.9835790808 which further shows that accused had been apprehended and arrested only on 25.1.2007 from Bus Stop in front of Seelam Pur Metro Station and not brought on 21.1.2007 from Jamshed Pur as claimed by him. The testimony of two public witnesses i.e. PW-3 Sh. Ashish and PW-5 Sh. Bimlesh Kumar Tripathi and PW-1 SI Ramesh Lamba, PW-4 SI Rajinder Shehrawat and PW- 11 ACP Sanjeev Kumar Yadav is sufficient to prove that rexin bag of the accused was found containing explosive substance 644 weighing 2.5 kg and two electronic detonators apart from dry fruits and clothes. The CFSL report Ex.PW6/A also shows that high explosive mixture and the two live electric detonators are the explosive substance as defined in the Explosive Substance Act, 1908. To avoid detection and ensure that it is not unnecessarily checked by opening it during security check on Republic Day eve, the explosive substance and detonators were kept under the dry fruits and clothes in a bag, is sufficient to prove that accused had carried these explosive substance for an unlawful object. It is proved by prosecution that accused came to Metro Station to deliver this consignment to another LeT Militant who did not turn up and after waiting for him, the accused was leaving the spot when chased and apprehended. The very fact that accused was waiting for someone to turn up to receive the consignment is sufficient to prove that it was meant to enable another person to endanger human life or cause serious injury.

28. In view of above discussion, I am of the considered view that the prosecution has been able to prove beyond reasonable doubt the recovery of explosive substance Ex.P1 and P3 and two electronic detonators Ex.P4/1 and 2 from accused Mohd. Iftakhar Alam being carried by him for an unlawful object. Hence, accused Mohd. Iftakhar Alam is held guilty for 645 the offence punishable under Sec.4 and 5 of Explosive Substance Act and convicted accordingly.


Announced in the open Court

20.4.2009                           ( PRATIBHA RANI )
                                    ASJ-01(Central)/Delhi




                              646
         IN THE COURT OF SMT. PRATIBHA RANI,
         ADDL. SESSIONS JUDGE-01(CENTRAL),
              TIS HAZARI COURTS, DELHI

SC No.14/07

State                Vs.      Mohd. Iftakhar Alam @
                              Abdulla @ Khalil,
                              S/o Sh. Mohd. Inamul Haque,
                              R/o Village & P.O. Mehmooda,
                              PS Khudaganj, Distt. Nalanda,
                              Bihar.

                              FIR No.4/07
                              U/S : 4 and 5 of Explosive
                              Substances Act
                              PS : Special Cell

                              Arguments heard on : 22.4.09
                              Order pronounced on : 22.4.09


                              ***

ORDER ON SENTENCE

I have heard the convict Mohd. Iftakhar Alam and his counsel Sh. K. Ansari, Advocate on the point of sentence. Sh. S.C. Sharma, ld. Addl. PP has also made submissions on behalf of State

2. On behalf of State, it has been contended that exemplary punishment should be given to the convict Mohd. Iftakhar Alam as he was found in possession of 2.5 kg explosive substance and two live detonators which could be used for causing huge damage to the life and property. 647

3. On behalf of convict Mohd. Iftakhar Alam, it has been submitted that convict is a Science Graduate. He was good in studies and aspired to become a Doctor but could not qualify the entrance examination. It has also been contended that convict was earlier earning his livelihood by giving tuitions. He has 80 years old father to support and he has a young wife and a female child who was born in January, 2007 and he has seen his daughter only once. It is submitted by the convict that a chance be given to him to reform himself and join the main stream and be a good citizen. Ld. Counsel for convict has prayed that a lenient view may be taken and convict be sentenced to the period already undergone by him.

4. I have considered the submissions made on behalf of the convict as well as on behalf of State. In the instant case, the convict was found in possession of 2.5 kg explosive substance and two live detonators. Being a Science Graduate, the convict must be aware of the nature of the substance he was carrying and the use to which it could be put by the persons to whom it was to be delivered. The act of the convict is such that it requires severe punishment as the explosive substance was intended to be used for causing damage to the life and property of innocent persons.

5. Considering the facts and circumstances of the case 648 and submissions made on behalf of the convict, I hereby sentence the convict Mohd. Iftakhar Alam to undergo rigorous imprisonment for five years and to pay a fine of Rs.1000/- for the offence punishable under Sec.4 of Explosive Substance Act. In default of payment of fine, he shall undergo simple imprisonment for one month. Convict is further sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1000/- for the offence punishable under Sec.5 of Explosive Substance Act. In default of payment of fine, he shall undergo simple imprisonment for one month. Both the sentences shall run concurrently and the period of detention already undergone during investigation/trial of the case, if any, shall be set off under Sec. 428 CrPC. Case property shall be confiscated to the State after the expiry of period of appeal, if any. File be consigned to Record Room.


Announced in the open Court

22.4.2009                           ( PRATIBHA RANI )
                                    ASJ-01 (Central)/Delhi




                              649
         IN THE COURT OF SMT. PRATIBHA RANI,
          ADDL. SESSIONS JUDGE-01(CENTRAL),
              TIS HAZARI COURTS, DELHI

SC No.5/09

State                 Vs       Mukesh
                               S/o Sh. Murari Lal
                               R/o Vegabond, Jhandewalan,
                               Delhi

                               FIR No.299/08
                               U/S : 363/366/354 IPC
                               PS : Paharganj

                               Date of Institution : 12.01.09
                               Arguments heard on : 22.4.09
                               Order pronounced on : 23.4.09

                               ***
JUDGMENT

Accused Mukesh has been sent to face trial for the offences punishable under Sec.363/366/354 IPC on the basis of statement made by Sh. Amrika Verma, father of the child victim (name of the child victim withheld to conceal her identity). His complaint is to the effect that on 30.11.2008 at about 8.00 pm child victim aged about 4½ years had gone out of her jhuggi for passing urine and shortly thereafter he also came out of the jhuggi for going to his work. He saw one person taking away the child victim to do illegal act. He raised alarm and when he ran after that man, he put his finger in her private part due to which she cried loudly. That person left his daughter and started 650 running. He chased that person and apprehended him and on inquiry his name was revealed as Mukesh S/o Sh. Murari Lal. On hearing his alarm, his neighbourer Vidhya and one Manoj came there. Smt. Vidhya checked private part of child victim which was bleeding. Manoj telephoned at number '100' and police came to the spot. He handed over the accused to the police. Police took the accused and the child victim to LHMC for medical examination. During investigation, accused Mukesh was arrested and after completion of investigation, chargesheet was filed against the accused for the offences complained of.

2. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.

3. After hearing on the point of charge, accused was charged on 09.02.2009 for the offence punishable under Sec.363/366/354 IPC to which he pleaded not guilty and claimed trial.

4. Prosecution has examined six witnesses in all in support of its case. Accused has also been examined under Sec. 313 CrPC to enable him to explain the evidence appearing against him. Accused has stated that he has been falsely implicated in this case. He has stated that he was sleeping in a three wheeler scooter and the girl was scolded by her mother and then she fell down and suffered injuries. He has also stated that 651 the public persons gathered there and on seeing the girl bleeding started beating him without caring to listen to him. He has further stated that he had been working there for 7-8 years and there was no complaint against him. Accused has not led any evidence in his defence.

5. I have heard Sh. S.C. Sharma, ld. Addl. PP for the State and Sh.Sumit Gupta, amicus curaie for the accused and also carefully gone through the record.

6. PW1 Smt. Vidya Devi has deposed that last year ( her statement was recorded on 2.3.2009) in the month of November, date she did not remember, during night time at about 10.00 or 11.00 pm she was taking food at her house when she heard some noise. She came out and saw father of child victim giving beating to accused Mukesh, who was under the influence of liquor and some other public persons were also present there. The girl came to her and told her that accused Mukesh had inserted finger in her private part. She checked her private part and saw injury there. Police came and accused Mukesh was taken by the police. Her statement was also recorded by the police. When she came out of the house, she saw accused Mukesh dragging the child victim and trying to take her away with him and when she reached the spot, she came to know from father of child victim about the incident that accused Mukesh 652 had inserted his finger in her private part thus causing injury and she also saw some bleeding from her private part.

7. PW2 L/Ct Bimla has stated that on 30.11.2008 she was posted at PS Rajinder and was on night duty. On that day she was asked to report to PS Pahar Ganj. She reached PS Paharganj and reported to the Duty Officer. She has also stated that she was asked to go to Lady Hardinge Medical College where the child victim had already gone for her medical examination. She went there and met the IO, complainant, child victim and other police officials. The child victim, aged about 4½ years was got medically examined vide MLC No.17035 and after her medical examination the doctor had handed over three sealed parcels to her which she handed over to the IO who seized the same vide seizure memo Ex.PW2/A. She has further stated that in her presence IO also arrested the accused Mukesh vide arrest memo Ex.PW2/B and also conducted his personal search vide memo Ex.PW2/C.

8. PW3 Amrika Verma is the complainant. He has stated that on 30.11.2008 at about 8.00 pm he was getting ready for going to his duty and at that time his daughter, aged about 4½ years asked him that she wanted to go for urinating for which he asked her to go outside the jhuggi near the sewer. She went there and after about five minutes he came out of his jhuggi for 653 going to his duty. When he came out of the jhuggi, he saw that accused Mukesh had lifted child victim in his lap and he raised alarm and on hearing noise Mukesh started running alongwith the child victim and while running, accused Mukesh put his finger in her private part as a result of which she started bleeding. After that accused left the girl child and ran away. On hearing his noise, Smt. Vidhya Devi, his neighbourer came there and he handed over the girl to her. He has further stated that he also ran after Mukesh and apprehended him. One Manoj telephoned the police at number '100' and police came there. He handed over the accused Mukesh to the police. Police recorded his statement Ex.PW3/A and he alongwith girl child, Vidhya Devi, some other persons of the locality went to the PS from where his daughter and the accused were sent to Lady Hardinge Medical College for medical examination. After her medical examination, they came back to the PS and then returned home. This witness has proved his signature on the seizure memo Ex.PW2/A vide which police had seized the pullandas handed over by the doctor. He has stated that in his presence police also seized two small bottles containing the nails of all the fingers i.e. nails of left hand in one small bottle and of right hand in another small bottle which were sealed with the seal of LHMC vide memo Ex.PW3/B. Accused was also arrested vide arrest memo 654 Ex.PW2/B and his personal search was also conducted vide memo Ex.PW2/C. Police also prepared the site plan at my instance.

9. PW4 Smt. Gayatri Devi is mother of the child victim. She has stated that last year (her statement was recorded on 13.4.2009), two-four days after Diwali in the month of November, she was present at her house. At about 8.00/8.30 pm, her daughter, aged about 4½ years went to toilet and after some time she heard the alarm raised by her husband. She came out of the jhuggi and saw accused Mukesh being caught by some persons. She has stated that her daughter was weeping at that time and she was with her neighbourer Vidya. She made efforts to console her daughter who was weeping and child victim pointed out her private part saying that she was having acute pain there, so she checked her panty and saw that there was blood on her panty and swelling on her private part. She took her daughter to her jhuggi. In the meantime, police came and she alongwith her daughter was taken to Lady Hardinge Hospital where her daughter was medically examined. Her statement Ex.PW4/A was recorded by the police. She has also stated that she did not see the accused doing anything with her daughter.

10. Dr. Richa Gangwar had examined the child victim and prove her MLC as Ex.PW5/A. She has also stated that she took 655 samples of perineal swab, blood sample and undergarments and kept them in separate parcels and sealed with the seal of CMO, LHMC.

11. PW6 Sh. Ramjit Singh, retired SI is the IO of the case. He has stated that on 30.11.2008 he was posted at PS Pahar Ganj and was on emergency duty from 8.00 pm to 8.00 am next day. At 8.48 PM on receipt of copy of DD No.34A Ex.PW6/A he alongwith Ct. Madan Lal reached the spot i.e. Motia Khan where he met Amrika Verma. He produced the accused Mukesh and the child victim aged about 4½ years before him and also informed that the accused was taking away his daughter and when he tried to apprehend him, he inserted his finger in her private part. He has also stated that he alongwith Smt. Vidya Devi, neighbour of Amrika Verma, child victim and Amrika Verma and the accused went to LHMC for medical examination of child victim and the accused and their medical examination was got done. The doctor had handed over the pullandas to him which he seized vide seizure memos Ex.PW2/A and Ex.PW3/B. He also obtained the MLCs of child victim and of the accused which are Ex.PW6/B and C. He has also stated that he recorded the statement Ex.PW3/A of Amrika Singh and made his endorsement Ex.PW6/D and sent the rukka through Ct. Madan Lal for registration of the case. He arrested the accused vide 656 arrest memo Ex.PW2/B and conducted his personal search vide memo Ex.PW2/C. He also prepared the site plan Ex.PW6/E at the instance of the complainant.

12. On behalf of State, Sh. S.C. Sharma, Ld. Addl. PP has submitted that from the statement of PW-1 Smt. Vidya Devi and PW-4 Smt. Gayatri Devi, it stands proved that on complaining by the child victim about the pain, they checked her private part and saw some bleeding from her private part and thereafter they took her to hospital where she was medically examined. It has been further submitted that identity of the accused also stands proved as he was apprehended by the father of the child victim by chasing him and in the circumstances, the accused be convicted.

13. On behalf of accused, Sh. Sumit Gupta, Amicus Curaie has submitted that the accused has been falsely implicated in this case. It has come in the statement of father of the child victim that he could see the back of the person who was taking his daughter and in that circumstance, he could not have identified the person who was taking his daughter It has been further contended that none of the prosecution witness has seen the accused inserting his finger and blood was not detected in his nails and in the absence of any such evidence, accused cannot be convicted by the Court. It has been further contended that 657 accused has been falsely implicated in this case on the basis of suspicion as he was sleeping in a three wheeler scooter after returning from his job and at that time the child victim was scolded by her mother and then she fell down and suffered injuries and the public persons gathered there started beating the accused without caring to listen to him. Ld. Counsel for the accused has prayed for acquittal of the accused.

14. I have considered the submissions made by ld. Counsel for the accused. The accused has been apprehended at the spot by father of the child victim and in the circumstances, his identity is not in dispute as he was handed over to the police by the father of the child victim in the presence of neighbourer who happened to reach the spot on hearing the accused. Further when the child left her jhuggi for passing urine, she was not having any injury on her private part and immediately thereafter when she was taken back from the lap of the accused, she had complained of pain and on being checked by neighbourer and mother of the child, they noticed bleeding from her private part and then she was taken to the hospital where she was medically examined. The child had complained to Smt. Vidya and her mother as to what had happened to her and in these circumstances, merely because the parents and the neighbourer Vidya of the child did not see the accused inserting his finger, is 658 no ground to presume that he has not done the same. Further it has come in the statement of PW-1 Smt. Vidya and PW-4 Smt. Gayatri Devi that they saw some bleeding from the private part of child victim and as per MLC, blood stain (+). The blood stain must have been there after he took out the finger, thus blood could not detect in his nails. As the child was too young to depose in the Court, whatever she narrated to her parents and neighbourer Smt. Vidya (PW-1) about the act of the accused and checked by them also proved from the MLC as per which small tear positive in right labia minora, is sufficient to nail him.

13. The statement of PW3 Sh. Amrika Verma, father of the child victim is sufficient to prove that his daughter aged about 4½ years had gone to pass the urine and when he came out of his jhuggi to go for his work he noticed that the accused was taking away his daughter and then he raised alarm and also chased the accused and at that time accused had inserted his finger in private part of his daughter. This statement of PW3 Sh. Amrika Verma, the complainant fully stands corroborated from the statement of PW1 Smt. Vidhya Devi who is neighbourer of the complainant and came out of the jhuggi on hearing the alarm. It was she to whom child was handed over and she noticed blood on her private part. PW4 Smt. Gayatri Devi, mother of the child victim had also deposed on identical lines 659 and their testimony is sufficient to prove that it was the accused Mukesh who took advantage of the fact that a young female child aged about 4½ years was alone and lifted her but fortunately for the child, her father came out of the jhuggi and managed to apprehend the accused and rescue her. The contention of ld. Defence counsel that this accused has been falsely implicated only on the basis of suspicion as he as sleeping in a three wheeler scooter after returning from his job, could not be proved by the accused by examining either the TSR driver or his employer that the accused had attended his work or that thereafter left for his place of residence. It cannot be ignored by this Court that the accused has been mentioned as 'vegabond'. Even in the arrest memo in column No.9 where the person of the arrestee to be informed with address and telephone number, if any, the IO has written NIL. Even permission has been obtained from the ld.ACMM to intimate the legal heirs of the accused through publication as the accused has not given the name of any of his friend or relative who could be informed about his arrest in this case. Even the accused has not given the name of his employer who could be contacted. It has come in the statement of PW3 Sh. Amrika Verma that accused was under the influence of liquor at that time and this fact stands corroborated from the MLC of the accused where the smell of 660 alcohol has been mentioned as positive. The DD Entry No.34A Ex.PW6/A is also regarding eve teasing by some boy who had been apprehended and it was on the basis of this information that IO SI Ramjit singh reached the spot alongwith Ct. Madan where accused was handed over to them and the girl child was sent for medical examination to Lady Hardinge Medical College where the doctor has opined at portion A 'small tear positive in right labia minora' on MLC Ex.PW5/A.

14. From the statement of the parents of the child victim and the neighbourer Smt. Vidhya Devi, it is not established that the purpose of kidnapping the child was with intent that she may be compelled to marry any person against her will or in order that she may be forced or seduced to illicit intercourse. The testimony of father of the girl child is sufficient to prove that accused was kidnapping her from the lawful custody of her parents when the child was alone as she had gone to pass urine to a nearby open place. The fact of inserting finger in the private part of the child stands proved from the testimony of Sh. Amrika Verma, Smt. Gayatri Devi and Smt. Vidhya Devi and this fact is corroborated from the MLC Ex.PW5/A. It has come in the statement of public witnesses that they had not seen the accused in that area prior to that date. The accused had also not mentioned his temporary/permanent place of residence in that 661 area or the name of owner of the TSR where he claimed to be sleeping at that time. In the absence of any evidence led by the accused, the fact that he is a vegabond with nobody known to him, the entire defence of the accused that he was sleeping after returning from the work is nothing but an afterthought.

15. In view of the above discussion, I find that prosecution has been able to prove its case against the accused Mukesh only for the offences punishable under sections 363 and 354 IPC. Accordingly, accused Mukesh is held guilty for the offences punishable under Sections 363/354 IPC and convicted accordingly.

Announced in the open Court.

23.4.2009                            ( PRATIBHA RANI )
                                     ASJ-01(Central)/Delhi




                               662
         IN THE COURT OF SMT. PRATIBHA RANI,
          ADDL. SESSIONS JUDGE-01(CENTRAL),
              TIS HAZARI COURTS, DELHI

SC No.5/09

State                 Vs        Mukesh
                                S/o Sh. Murari Lal
                                R/o Vegabond, Jhandewalan,
                                Delhi

                                FIR No.299/08
                                U/S : 363/354 IPC
                                PS : Paharganj

                                Arguments heard on : 24.4.09
                                Order pronounced on : 24.4.09

                               ***
ORDER ON SENTENCE

I have heard the convict Mukesh on the point of sentence. Sh. S.C. Sharma, Ld. Addl. PP for State has also made submissions.

2. On behalf of convict, it has been submitted that he used to earn his livelihood by working as Palledar and that lenient view may be taken and he be sentenced for the period already undergone by him in judicial custody.

3. Taking into consideration that accused is a person aged about 32 years and finding a female young child aged about 4½ years alone, he did not hesitate in lifting her and when found himself even chased by the complainant, had the perverse mind that he inserted his finger in the private part of the child victim, 663 he does not deserve to be dealt with leniency. The convict is sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1000/- for the offence punishable under Sec.363 IPC. In default of payment of fine, he shall undergo simple imprisonment for one month. Convict is also sentenced to undergo rigorous imprisonment for two years for the offence punishable under Sec.354 IPC. Both the sentences shall run concurrently. The period of detention already undergone by the convict during investigation/trial of the case shall be set off under Sec. 428 CrPC. File be consigned to Record Room.

Announced in the open Court 24.04.2009 ( PRATIBHA RANI ) ASJ-01(Central)/Delhi 664 IN THE COURT OF SMT. PRATIBHA RANI, ASJ-01 (CENTRAL), TIS HAZARI COURTS, DELHI SC No.59/08 State Vs Ashok Kumar Yadav, S/o Late Sh. Ram Singh R/o Vill. Papri Kak Nangla Distt. Mathura, UP.

FIR No.10/08 U/s : 186/353/307 IPC & 25/27 Arms Act PS : Special Cell Date of Institution : 29.04.08 Arguments heard on : 24.4.09 Order pronounced on : 25.4.09 *** JUDGMENT Accused Ashok Kumar Yadav has been sent to face trial for the offence punishable under Sec. 186/353/307 IPC and 25/27 Arms Act. In brief the allegations against him are that on 1.3.2008 on the basis of secret information that the accused who was a life convict and jumped the parole in the year 2000, would come to ISBT, Anand Vihar at about 4.00/4.30 PM to board a bus for going to Uttar Pradesh and in case of raid he could be apprehended. On the basis of this information a raiding party was organized and they reached ISBT Anand Vihar at 3.05 PM. SI Anand Swaroop requested public persons to join the raiding party but none agreed. Thereafter the members of the 665 raiding team took position on the service road going towards Anand Vihar ISBT. At about 4.10 PM a person with a black colour bag on his shoulder was seen coming from the side of Gazipur and was identified by the informer to be Ashok Kumar Yadav. SI Anand Swaroop while showing his Identity Card and disclosing his identity asked the accused to surrender. On hearing this, accused threw away his bag and took out a pistol from his right dub and fired towards police party and the bullet passed closed to the left shoulder of SI Anand Swaroop. The accused was overpowered by the members of the raiding team and the pistol taken from him was unloaded and three live cartridges were found in the magazine and chamber of the pistol and one empty cartridge fell on the road after the accused fired on the police party. Sketch of the pistol, three live cartridges and one fired cartridge was prepared and they were kept in a cloth pullanda which was sealed with the seal of DP and taken into possession vide seizure memo. After completion of necessary investigation, obtaining necessary permission under Sec. 39 Arms Act and complaint under Sec. 195 CrPC from the competent authority, charge sheet was filed.

2. After compliance of provisions of Sec. 207 CrPC, the case was committed to the Court of Sessions.

3. After hearing on the point of charge, accused Ashok 666 Kumar Yadav was charged on 2.6.2008 for the offence punishable under Sec.186/307/353 IPC to which he pleaded not guilty and claimed trial.

4. Prosecution has examined eleven witnesses in support of its case. All the incriminating evidence appearing against the accused was put to him during his statement under Sec. 313 CrPC to enable him to explain the same. Accused has denied the case of prosecution and stated that he has been falsely implicated in this case. On 29.2.2008 he had gone to meet his friend Rajbir Malwa at Khoda Colony, Delhi. As he had jumped the parole, he asked his friend to get him surrendered in the Court and instead of getting him surrendered, he got him arrested to get the reward of rs.20,000/- which was on him. Later on, on 1.3.2008 he was shown arrested in this false case and nothing incriminating was recovered from his possession nor he fired on the police party as alleged. Accused has not led any evidence in his defence.

5. PW4 Ct. Jagat Kumar has stated that on 4.4.2008 IO handed over to him one priority letter, copy of FIR, sketch of pistol, site plan and copy of seizure memo which he took to the Malkhana. Incharge, Malkhana handed over to him one sealed pullanda sealed with the seal of DP containing one pistol and three live cartridges and one empty cartridge which he took to 667 FSL, Rohini vide RC No.28/21 and after depositing the same at FSL office, he returned the copy of RC and receipt to Incharge, Malkhana. So long the pullanda remained in his custody, the same was not tampered with.

6. PW5 SI Ram Niwas has stated that on 1.3.2008 he was working as Duty Officer from 4.00 pm to 12.00 midnight. At about 7.45 pm he received a rukka sent by SI Anand Swaroop through ASI Rakesh Kumar on the basis of which he recorded the FIR No.10/08 under Sec. 186/353/307 IPC & under Sec.25/27 Arms Act. He has proved the carbon copy of the FIR as Ex.PW5/A and also his endorsement Ex.PW5/B made on the rukka. He has stated that the copy of FIR alongwith the original rukka was handed over by him to ASI Rakesh Kumar for handing over the same to SI Rajender Khatri to whom the further investigation was entrusted.

7. PW6 ASI Paramjit Singh was working as MHC(M), PS Special Cell, Lodhi Colony. He has proved the photocopies of extract of extract of relevant entries made in register No.19 and of RC as Ex.PW6/A and B respectively.

8. PW7 SI Amul Tyagi has proved the sanction under Sec. 39 arms Act given by Sh. Alok Kumar, DCP, Special Cell as Ex.PW7/A.

9. PW8 Sh. Puneet Puri, Sr. Scientific Assistant 668 (Ballistic), FSL, Rohini has proved his report as Ex.PW8/A.

10. PW9 is ACP Sanjeev Kumar Yadav. He has proved the complaint filed by him in the Court of ld. CMM, Delhi under Sec. 195 CrPC as Ex.PW9/A.

11. PW11 SI Rajinder Kumar is the second investigating officer in this case. He has stated that on 1.3.2008 further investigation of this case was entrusted to him and at about 6.30 pm he reached the spot i.e. East District Mall, Opposite ISBT Anand Vihar where he met SI Anand Swaroop, Inspector Devender, SI Dinesh Pal, SI Satender Sangwan, ASI Rakesh, HC Balraj, Ct. Jagat, Ct. Satish and Ct. Yashpal. SI Anand Swaroop handed over to him one sealed pullanda, seizure memo, form FSL and the accused Ashok Kumar Yadav. He has stated that he prepared the site plan Ex.PW11/A at the instance of SI Anand Swaroop who also handed over to him one bag containing clothes of the accused which he seized vide memo Ex.PW2/B and also recorded the statement of SI Anand Swaroop. PW11 has further stated that he interrogated the accused and arrested him vide memo Ex.PW2/C and his personal search was conducted vide memo Ex.PW2/D, body inspection memo of the accused Ex.PW11/B was also prepared. In the meantime, SI Rakesh returned to the spot and handed over to him the copy of FIR and original rukka. He has further stated 669 that on the next day, accused was interrogated and his disclosure statement Ex.PW2/E was recorded. Accused was got medically examined and thereafter produced in the Court and his one day police custody remand was obtained. He has stated that on 4.4.2008 case property was sent to FSL, Rohini and its result was Ex.PX was collected. On 24.9.2008 he moved an application Ex.PW11/C before the Court seeking permission to re-examine the case property which was allowed and on 26.9.2008 the case property was again sent to FSL, Rohini and its report was collected which is Ex.PW8/A. He obtained the complaint under Sec.195 CrPC Ex.PW9/A from the competent authority i.e. Sh. Sanjeev Kumar Yadav, ACP and also obtained the sanction Ex.PW7/A under Sec.39 Arms Act against the accused.

12. PW3 SI Anand Swaroop has deposed that on 1.3.2008 he was present in his office at Special Cell (SR) and at about 1.00 pm, informer came to the office and informed that one life convict who had also jumped the parole and absconding since 2000 namely Ashok Yadav would come at about 4.00/4.30 pm at ISBT, Anand Vihar to go to UP. He conveyed the said information to senior police officials who directed him to take necessary action immediately. He organized a raiding party consisting of SI Dinesh Pal, ASI Rakesh Kumar, HC Balraj, Ct. 670 Jagat Singh, Ct. Satish and Ct. Yashpal under the supervision of Inspector Devender Singh and at about 2.20 pm, the raiding party left the office in two private cars. At about 3.05 pm they reached near East District Mall, near ISBT Anand Vihar and he requested 4/5 public persons to join the raiding party but none agreed to join and left without disclosing their names and addresses. Both the vehicles were parked in front of East District Mall and Inspector Devender Singh briefed the members of the raiding party and on the direction of Inspector they took their position on the service road going towards ISBT, Anand Vihar. He has also stated that at about 4.10 pm one person was seen coming from the side of Gazipur having a black colour cloth bag hanging on his left shoulder and that person was pointed out by the informer as Ashok Kumar Yadav. That person was stopped and his name was revealed as Ashok Kumar Yadav. He has further stated that he and Inspector Devender Singh showed their identity card to the accused and gave introduction of police officials present there and asked him to surrender. The accused threw away the bag from his left shoulder and took out a pistol from right dub of his pant and made fire towards him and the bullet passed close to his shoulder. Ct. Satish and Ct. Jagat Singh overpowered the accused and snatched the pistol from his right hand and in the 671 meantime other members of raiding party also reached there. On inquiry accused disclosed that he had been convicted in a murder case of PS Jahangir Puri and since 2000 he had jumped the parole. He checked the pistol and it was found containing three live cartridges i.e. one from chamber and two from magazine and one fired cartridge was lifted from the ground. The sketch Ex.PW1/A of the pistol and cartridges was prepared by him and same were kept in a pullanda and sealed with the seal of DP and were taken into possession vide seizure memo Ex.PW2/A, Form FSL was filled in and seal after use was handed over to SI Satinder Sangwan. PW3 has further stated that he prepared the rukka Ex.PW3/A and handed over the same to ASI Rakesh who got registered the case in the PS and further investigation was marked to SI Rajinder Khatri who reached the spot. He handed over the case property, accused and the documents prepared by him to SI Rajinder Khatri who also prepared the site plan at his instance. He has identified the case property i.e pistol as Ex.P1 and cartridges as Ex.P1/1 to 4.

13. PW1 ASI Rakesh Kumar and PW2 SI Dinesh Pal have deposed on identical lines.

14. I have heard ld. Addl. PP for the State and ld. Counsel for the accused and also carefully gone through the record.

15. On behalf of prosecution Sh. S.C. Sharma, Addl. PP 672 has submitted that the accused was a desperate criminal and was already a life convict and when the raiding party headed by SI Anand Swaroop after disclosing the identity wanted him to surrender, the accused, who was armed even at that time, did not hesitate in firing towards the police party. It has also been contended that nobody wants to become a witness in a case involving such a desperate criminal and the police officials have absolutely no motive to falsely implicate him in this case when he was already awarded life imprisonment. Ld. Addl. PP has prayed for conviction of the accused.

16. On behalf of the accused Sh. Ranvir Singh, amicus curaie has contended that the accused, though a life convict, had no further history of involvement after he jumped parole in 2000. It has been contended that accused had his own reason to jump parole because of large number of enemies and he wanted to protect his family and that is why he was living in a distant place away from the eyes of police and other criminals. It has been contended that it is highly improbable that accused could travel with a loaded pistol and would fire towards the police party in full vicinity of the public. It has been further contended that the entire case is a concocted story just to take reward of Rs.20,000/- which was announced on the accused who was absconding and that neither any pistol has been recovered from 673 the accused nor he fired towards any member of the raiding party and had there been any truth in the statement of police officials regarding firing by the accused, it was impossible to get away unhurt as the firing was from a close range and that fact itself is sufficient to acquit the accused.

17. I have considered the contentions made by ld. Defence counsel. Though the contention of ld. Addl. PP for the State is that there was no motive for the police officials of Special Cell to falsely implicate the accused in this case who was already absconder having a reward of Rs.20,000/- is concerned, irrespective of this fact, the defence of the accused that he wanted to surrender to escape encounter and was using the services of his friend Sh. Rajbir Malwa whose telephone number has also been given by him, the mere fact that Rs.20,000/- might not have been claimed by the police officials of Special Cell, is no ground to treat the prosecution story as gospel truth.

18. In the instant case the testimony of police officials of Special Cell i.e. PW1 to PW3 who were members of the raiding party, is that when the accused was made to stop at the instance of informer, SI Anand Saroop and SI Dinesh Pal showed their identity card and introduced to the accused other members of the raiding party. This conduct of the police officials of Special 674 Cell in itself is highly improbable specially when the raiding party knew in advance that the person, they were trying to nab, was a life convict and absconding for more than six years. That might have been the reason that as per PW1 ASI Rakesh Kumar one of the constable Yashpal was even carrying AK-47. With this history of the present accused being available with the raiding party, any ordinary prudent person in that circumstance would have first ensured whether accused was carrying arm and if found to be so, then first dis-arm him and then carry out further interrogation/investigation. This is a case where no independent public witness has been joined though place of apprehension has been shown near ISBT, Anand Vihar. Though, the accused was carrying two mobile phones, neither their call details have been collected and place on record nor otherwise it is established that at the time of apprehension the location of this accused was at ISBT, Anand Vihar. It is also very strange that PW3 SI Anand Swaroop has stated that he had not used any mobile at that time and this answer seems to have been given so as to prevent the defence from collecting the call details and ascertain the location of that particular witness who was also a member of the raiding party.

19. Another aspect to be considered is that when the accused was stopped by the members of the raiding party and 675 Identity card was being shown, the distance between SI Anand Swaroop and accused had to be so less that there was just no question of missing the aim if at all there was a firing by the accused towards the police officer SI Anand Swaroop. It was highly improbable that in that circumstance the bullet would pass close to the shoulder without hitting anyone nearby and though police party was fully armed and even carrying AK-47, there would not be any retaliation by members of the police party. On hearing the sound of fire, public persons present at ISBT, Anand Vihar were bound to gather to inquire as to what had happened but it is nowhere the case of prosecution that any public person gathered at the spot though the raiding party remained present there from 3.05 PM till 9.15 PM when ASI Rakesh Kumar returned to the spot with rukka and copy of FIR.

20. It is admitted by all the prosecution witnesses who were member of the raiding team as well as by the second IO SI Rajinder Khatri that the distance between the office of Special Cell and the spot is about 20-25 KM. If it is so then how SI Rajinder Khatri happened to reach the spot even before the rukka was sent through ASI Rakesh Kumar at about 6.35 PM. In the rukka itself, SI Anand Swaroop has mentioned that rukka was being sent for registration of the FIR through ASI Rakesh Kumar and that after registration of the FIR, as per order of 676 senior officers, further investigation be handed over to SI Rajinder Khatri who had already reached the spot by that time. No DD entry has been placed on record vide which SI Anand Swaroop or any other police officer had informed the senior officers about the apprehension of the accused Ashok kumar Yadav and sending of SI Rajinder Khatri to the spot for further investigation. There is no departure entry made or placed on record by SI Rajinder Khatri as to who directed him to reach the spot and vide which DD number he left for the spot. There is also no arrival entry made and placed on record by the members of the police party as to at what time they reached the office of Special Cell after apprehension of the accused. If SI Anand Swaroop has not used his mobile from the spot to make any kind of communication, none of the other team member has stated as to how the information of apprehension of the accused was communicated to senior officers. In the circumstances the entire prosecution case has become doubtful regarding the manner of apprehension of the accused as well as recovery of pistol alongwith cartridges from him or firing towards the raiding team by the accused.

21. In view of the above discussion, I am of the opinion that testimony of prosecution witnesses is improbable and cannot be believed to form basis of conviction of this accused. 677 Accordingly, accused Ashok Kumar Yadav is acquitted of the charge. Case property shall be confiscated to the State after the expiry of period of appeal, if any. File be consigned to Record Room.

Announced in the Open Court.

25.4.2009                            ( PRATIBHA RANI )
                                     ASJ-01(Central)/Delhi




                               678
         IN THE COURT OF SMT. PRATIBHA RANI,
         ADDL. SESSIONS JUDGE-01(CENTRAL),
              TIS HAZARI COURTS, DELHI

SC No.153/07

State                Vs.       (1) Abdul Baki Mandal,
                                   S/o Sh. Mohd. Mohsin Ali
                                   Mandal,
                                   R/o Village & P.O. Gacha,
                                   PS Bashir Hat,
                                   Distt. North 24 Pargana,
                                   West Bengal

                               FIR No.146/05
                               U/S : 18/19/20 of Unlawful
                               Activities (Prevention) Act.
                               PS : Special Cell

                               Date of Institution : 8.2.2006
                               Arguments heard on : 24.4.09
                               Order pronounced on : 25.4.09

                              ***

JUDGMENT

In brief, the case of the prosecution is that in the month of July, 2005 there was a Fidayeen attack by militants at Ram Janam Bhumi-Babri Masjid site in Ayodhaya in which five militants were gunned down by the Security Forces and from the possesion of one of the deceased militants, one mobile phone was recovered. To work out the conspiracy and the outfits involved in the Fidayeen Attack, a team was constituted and from the scanning of date and its subsequent analysis, it was revealed that the terrorists involved in the Ayodhaya attack had 679 also set up their base in Delhi. To further develop this information, sources were deployed in Delhi and Jammu- Kashmir to unearth this conspiracy and through the technical surveillance and scanning of data, it was revealed that the Fidayeen Attack on Ayodhaya was the handiwork of the banned terrorist outfit Jaish-e-Mohammad and it was using Delhi as a transit point between Bangladesh and Jammu-Kashmir and had also set up their module in Delhi and this module had provided shelter to many terrorists of JeM who were involved in several terrorist attack in India. From the technical surveillance, it was revealed that one Abdul Baki @ Raju, resident of West Bengal used to ferry the militants from Bangladesh to their safe hideouts in Delhi and vice versa and that one Amir, resident of Assam was also instrumental in providing hideouts to the JeM militants in Delhi and adjoining areas. This information was discussed with senior officers and a team consisting of SI Kailash Bisht and HC Bijender Singh were sent to West Bengal to identify and keep a secret watch on the movements of Abdul Baki @ Raju. HC Satender was also sent on 5.11.2005 to assist the team already deployed there. On 10.11.2005, on the basis of information received from SI Kailash Bisht that Abdul Baki had come to Hawrah Station and purchased a ticket for Delhi bound train No.2381 Purva Express, it was recorded in Daily diary and 680 discussed with senior officers. Thereafter a team under the supervision of ACP Sanjeev Kumar Yadav headed by Inspector Badrish Dutt consisting of Inspector Mohan Chand Sharma, SI Sanjay Dutt, SI Vijay Tyagi, SI Rakesh Malik, SI Pawan Kumar, ASI Vikram, SI Rajpal Dabas, ASI Shahjahan and constables was formed. After ascertaining the time of arrival of Purva Express at New Delhi Railway Station, the raiding party left for New Delhi Railway Station and the team members were deployed on Ajmeri Gate side as well as Pahar Ganj side as the train was to arrive at Platform No.6.

2. After the train arrived, SI Kailash Bisht pointed out towards the accused Abdul Baki who came out of the General Compartment which was located at the rear end of the train and it was decided to follow him secretly. After getting down from the train, the accused came out of the New Delhi Railway Station from Ajmeri Gate site and proceeded towards Bus Stop. Suddenly he started running towards Mintoo Road and he was apprehended after being chased. He was interrogated and his identity was revealed as Abdul Baki Mandal, resident of Village and P.O. Gacha, Bashir Hat, Distt. North 24 Pargana, West Bengal and that he was member of the banned terrorist organization Jaish-E-Mohammad (JeM) and had come to Delhi on the direction of his handler in Bangladesh namely Anwar @ 681 Jubed. During investigation, it was revealed that he had illegally brought many terrorists of JeM from Bangladesh to Delhi including the terrorist involved in Ram Janam Bhumi-Babri Masjid attack in July, 2005. Matter was brought to the notice of senior officers and on the basis of interrogation of the accused, case FIR No.146/05 under Sec.18/19/20 of Unlawful Activities (Prevention) Act was registered against the accused. During investigation of this case, his police remand was sought and on 17.11.2005, at the instance of accused Abdul Baki Mandal, three identity cards were recovered, one of which was of accused Abdul Baki Mandal issued by JeM and two other identity card issued from Karachi, Pakistan belonging to Militants of JeM who were helped by the accused in illegally crossing over in India. On the basis of disclosure statement of accused Abdul Baki Mandal, other accused persons namely Amir Ali, Nafiq-Ul- Biswas, Sohag Khan @ Hilal, Nadir and Mohd. Ibrahim were also arrested, however while filing the chargesheet, as no sub