Delhi District Court
State vs . Subramanyam Yadav Etc Sc No. ... on 5 May, 2014
Author: Sh. Girish Kathpalia
                                                                                        
         IN THE COURT OF SH. GIRISH KATHPALIA, ASJ−05, 
               SOUTH EAST DISTRICT, SAKET, NEW DELHI
                                         SC NO. 30/14
STATE 
vs 
1. Subramanyam Yadav @ Rahul Madrasi,
    S/o Sh. S. Narsingha Rao, 
    R/o Gali No. 8, Ajanta Park, Khoda Colony,
    Ghaziabad, UP.                                         (proclaimed offender)
2. Ramesh Kumar S/o Sh. Netrapal,
    Gali No. 5, Prakash Nagar, 
    Khoda Colony, Ghaziabad, UP &
3. Daya Nand S/o Shri Khem Chand,
    R/o village Rajokri Pahadi,
   New Delhi
                                                                     FIR No. 473/06
                                                             PS Hazrat Nizamuddin
                                           Offence under Section 392/397/411/34 IPC
                                           Unique ID                             : 2403R
                                           Date of Committal                    :  15.01
                                           First Date in this Court   :   22.01.2014    
                                          Date of conclusion of arguments: 30.04.2014 
                                          Date of decision                      : 05.05.
                                         JUDGMENT
1. The case brought by the prosecution is as follows.
2. On 03.07.2006 at about 11:30 am, DD No. 7A was recorded at State vs. Subramanyam Yadav etc
SC No. 30/14 Page 1 of 46 Pages PS Hazrat Nizamuddin to the effect that as informed by the
operator, 10−12 men took away money and jewelery from premises no. C−33A, Ground Floor,
Hazrat Nizamuddin East at gun point. A copy of DD No.7A was delivered to SI Harbir Singh through
Ct. Sunil. Upon receipt of copy of DD No. 7A, SI Harbir Singh accompanied with Ct. Dilip reached
the spot, house no. C−33A, Hazrat Nizamuddin East, New Delhi, where they met Smt. Preeti
Paliwal, a resident of that house who gave her statement.
3. In her said statement, Smt. Preeti stated that she had been residing in the said house with her
family and her husband is engaged in the business of wall paintings under the name of Decor India
in Greater Kailash I; that during the previous Diwali season, they got doors of their house polished
from the labour of contractor Rangi Lal and one of the labours was a South Indian who worked in
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their house for many days, so she could identify him well and his name was Rahul; that at about
10:30 am after her husband had left for his office, the door bell rang and her maid Urjila on seeing
Rahul Madrasi opened the door; that Rahul was accompanied with many persons; that Rahul
Madrasi suddenly took out a State vs. Subramanyam Yadav etc SC No. 30/14 Page 2 of 46 Pages
country made pistol and placed the same on the head of her child, threatening to kill and, thereafter,
from her bedroom almirah took out cash Rs.50,000/− alongwith her gold and diamond jewelery
and ran away; that she could identify the accomplices of Rahul Madrasi if shown; that the details of
jewelery would be furnished by her after checking the house properly; that though none of the
occupants of her house suffered any injury but Rahul Madrasi and his companions looted her house.
4. On the above said statement of Smt. Preeti, SI Harbir Singh prepared a rukka and after getting
the FIR registered, investigated the case. In the course of investigation, SI Harbir Singh (IO)
prepared the site plan after inspecting the spot and recorded statements of witnesses. IO also called
the crime team to the spot and got the spot inspected.
5. Thereafter, in the course of investigation on 05.07.06, the IO received a copy of DD No. 4A of PS
Hazrat Nizamuddin to the effect that as per information conveyed by SI Rajesh of New Ashok Nagar
over telephone, accused Ombir and Ramesh of FIR No. 286/06 of PS New Ashok Nagar, arrested on
04.07.06 had given disclosure statement State vs. Subramanyam Yadav etc SC No. 30/14 Page 3 of
46 Pages pertaining to the present case and they would be produced in Karkardooma. The IO upon
receipt of DD No. 4A contacted SI Rajesh and proceeded with further investigation.
6. On 06.07.06 on the basis of a secret information, the IO arrested accused Govind Singh Bhandari
from Mayur Vihar bus stand and recovered from him some jewelery articles, looted in the present
case.
7. Thereafter, on 10.07.06 on secret information, the IO arrested accused Subramanyam Yadav @
Rahul Madrasi from the booking hall of New Delhi Railway Station and recorded his disclosure
statement on the basis whereof few jewelery articles, looted in the present case were recovered. In
his disclosure statement, Rahul Madrasi informed that some of the looted articles had been illegally
taken away from them by a police official who could be got arrested by him. After further
investigation from police control room on the basis of the disclosure statement of Rahul Madrasi,
the IO arrested accused Ct. Dayanand on the pointing out of Rahul Madrasi. Thereafter, on the basis
of disclosure statement of accused Ct. Dayanand, some jewelery articles allegedly State vs.
Subramanyam Yadav etc SC No. 30/14 Page 4 of 46 Pages looted in the present case were recovered.
8. Thereafter, on 18.07.06 accused Ombir and Ramesh Kumar were arrested by the IO and cash and
jewelery was recovered from them. During investigation, IO applied for test identification parade of
Ombir, Ramesh Kumar and Govind Singh Bhandari but all of them refused to join TIP.
9. After completion of investigation, police filed charge sheet against accused Subramanyam Yadav
@ Rahul Madrasi, accused Ramesh Kumar and accused Dayanand for offence under Section
392/397/411/34 IPC. The remaining two accused persons namely Ombir and Govind Singh
Bhandari were found to be minor in age, so their case was separately sent to the children court.
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10. Upon committal of the case, my predecessor court framed charge against all the three said
accused persons for offence under Section 392/34 IPC and Section 397/34 IPC and also framed
charge against accused Subramanyam Yadav @ Rahul Madrasi and accused Dayanand for offence
under Section 411 IPC. All the accused persons pleaded not State vs. Subramanyam Yadav etc SC
No. 30/14 Page 5 of 46 Pages guilty and claimed trial.
11. In the beginning itself of the trial, accused Subramanyam Yadav @ Rahul Madrasi became absent
and after necessary proceedings was declared proclaimed offender by my learned predecessor on
28.05.08.
12. In support of its case, prosecution examined 20 witnesses, whereafter the entire prosecution
evidence was put to the two accused persons namely Dayanand and Ramesh Kumar in their
statements under Section 313 Cr.P.C. Both the accused denied the truthfulness and correctness of
prosecution case and pleaded that they are innocent but opted not to lead any evidence in defence. I
have heard Sh. R.K. Gurjar, Additional Public Prosecutor for State and Sh. K.S. Khatri, counsel for
accused, who also submitted the written arguments.
13. A brief conspectus of the evidence brought on record is as follows.
14. PW−1 Ms. Veena Rani, Metropolitan Magistrate proved the TIP proceedings of the accused
persons as Ex.PW−1/A−G, stating that the accused persons refused to join TIP.
State vs. Subramanyam Yadav etc SC No. 30/14 Page 6 of 46 Pages
15. PW−2 Sh. Lalit Kumar, Metropolitan Magistrate proved the TIP proceedings of the articles
allegedly recovered in this case as Ex.PW−2/A & B.
16. PW−3 Ct. Dilip deposed having accompanied the IO upon receipt of DD No. 7A on 03.07.06
followed by recording of the statement of Smt. Preeti and about his having got the FIR registered
from police station.
17.1 PW−4 Smt. Preeti Paliwal deposed that her husband is a painter, running business in the name
of Decor India from Greater Kailash−I; that in 2005 Diwali, some polish work was done at her
residence through contractor Rangi Lal who had employed two labourers namely Subramanyam @
Madrasi and another one, whose name she did not know; that after finishing the polish work, the
said labourers left her premises; that accused Subramanyam @ Rahul visited her house many days
for polish work; that on 03.07.06 her husband left for his office at about 10:00 am and she was
alone at home with her kids and maid; that at about 10:30 am, upon the door bell being rung, her
maid opened the State vs. Subramanyam Yadav etc SC No. 30/14 Page 7 of 46 Pages door and found
four persons present there; that all those four persons entered her house and one of them was Rahul
Madrasi; that Rahul Madrasi was carrying a country made pistol; that the two other accused persons
took her child and the maid in the room and accused Rahul Madrasi put pistol on the head of both
her kids threatening to kill them if she made any noise; that accused Rahul and Ramesh took her
inside her room and asked her to open the almirahs and hand over the cash and other articles; that
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she opened the almirah and after taking out Rs. 70,000/− and all her jewelery she handed over the
same to accused Rahul @ Subramanyam and Ramesh; that the accused persons also demanded a
bag from her to keep the jewelery and cash and also directed her to place some more money at a
particular place near Ashram Chowk which would be collected by them in the evening, failing which
they would kill her kids; that thereafter the accused persons disconnected the door bell wire and
went away; that she immediately called up her husband and father who reached the spot within 15
minutes and informed the police; that police came and recorded her statement Ex.PW−4/A and
prepared the site plan; State vs. Subramanyam Yadav etc SC No. 30/14 Page 8 of 46 Pages that
subsequently she gave to the police complete detailed list Ex.PX of her jewelery articles; that on
31.07.06 she identified the recovered jewelery articles in Tihar Jail and subsequently got the same
released on superdari vide Ex.PW−4/B. PW−4 produced her jewelery articles which were allegedly
looted and recovered and released to her on superdari as Ex.P−1 to Ex.P−27 and as regards the cash,
PW−4 stated that she had already spent the same, so could not be produced.
17.2 In her cross examination, PW−4 admitted that the jewelery articles in question did not have any
specific description or mark of identification and similar articles are easily available in the market;
that she could not produce the invoices of the said articles; that she could not tell the number of
similar articles which were mixed up with the recovered articles at the time of TIP; that about
recovery of the looted articles she was informed by the police about 5−6 days after the incident; that
she did not know if her husband, who had gone to the police station had been shown the recovered
articles; that prior to the incident she knew only accused Subramanyam but was confident that
accused Ramesh had State vs. Subramanyam Yadav etc SC No. 30/14 Page 9 of 46 Pages
accompanied Subramanyam since after the incident police had shown Ramesh to her twice in the
court, in order to identify him and she had been shown the accused Ramesh before being produced
in the court; that after about 4−5 days of the incident, she got telephone call from police station
informing about the recovery of her jewelery, whereafter her husband and father went to the police
station and they were shown the recovered jewelery; that after returning from police station, her
husband told that some of the looted jewelery articles had been recovered and shown to him in the
police station; that though there was no special identification mark on her jewelery items, she was
certain that the jewelery allegedly recovered belonged to her and she identified the same because of
her belief; that at the time of identification of the jewelery articles, no similar articles were put
before her alongwith the allegedly recovered articles; that one golden necklace type article was
shown to her but the same was smaller and lighter than her necklace; that the articles obtained by
her on superdari were not tested to ascertain if the same were of gold or silver or diamond or any
other stone; that the accused Ramesh State vs. Subramanyam Yadav etc SC No. 30/14 Page 10 of 46
Pages was shown to her without muffled face at Patiala House Court when she was called upon to
identify him in the court; that she never saw accused Ramesh with Subramanyam on any other day
except on the day of incident; that the accused Ramesh did not enter her house with Subramanyam
and did not rob the jewelery.
18. PW−5 Sh. Alok Paliwal deposed that upon receiving the telephonic information of the incident at
about 11:00 am on 03.07.06, he immediately rushed to his home and informed the police, who came
and recorded their statement and prepared site plan; that about 2−3 days after the incident, some of
the jewelery articles and cash were recovered by the police which he got released on superdari. PW−
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5 identified the photocopies of currency notes, allegedly involved in the present case as Ex.PW−5/B
(Colly). Before my learned predecessor, in his statement PW−5 described the supardarinama as
Ex.PW−5/A but it was recorded by my predecessor that the said superdarinama was not traceable
on record. In his cross examination, PW−5 stated that the currency notes robbed from his house
were in a wad tied with the rubber band and the same were State vs. Subramanyam Yadav etc SC
No. 30/14 Page 11 of 46 Pages total 100 notes of Rs.500 denomination each. PW−5 admitted that
there is no specific mark of identification by which he could say its certainty that the currency notes
belonged to him.
19. PW−6 Ms. Urshila, the maid of the complainant deposed that on 03.07.06 after Sh. Ashok
Paliwal went to his office and she was in the house of the complainant with the complainant and her
two kids, door bell rang and when she opened the door, she found four boys who entered the house;
that one of those boys put pistol on the kids and two boys took her and the kids to another room,
leaving behind the complainant Smt. Preeti with the remaining two boys; that one of those four boys
was Subramanyam Madrasi who had worked as polish man at their house prior to the incident. PW−
6 identified the accused Ramesh in the court as one of the robbers. In her cross examination, PW−6
stated that she personally did not see the accused robbing the complainant and taking away the cash
and jewelery; that it is Rahul Madrasi who was in possession of the pistol; that she was not aware as
to where the jewelery and cash had been kept in their house prior to the robbery; that the State vs.
Subramanyam Yadav etc SC No. 30/14 Page 12 of 46 Pages accused persons present in the court
were not those two boys who had taken her to the other room; that prior to the incident she had
never seen the other three boys who accompanied Rahul Madrasi; that she was not certain if the
accused Ramesh had entered their house on the day of incident and was involved in the alleged
robbery; that she had never seen the accused Ramesh prior to the day of her testimony in the court;
that the persons who had earlier worked as polish men had not accompanied Rahul Madrasi on the
day of incident; that she cannot recognize a face if shown after gap of time if the said face does not
belong to Darjeeling from where she belonged and had different features; that if any person other
than Madrasi came before her, she would not be able to identify him as the person seen by her
before or during the incident; that it is possible that she had never seen the accused Ramesh and
Dayanand prior to the day of her testimony; that after the incident she had never seen those four
accused persons till date of her testimony.
20. PW−7 ASI Sushila proved a copy of the FIR as Ex.PW−7/A and her endorsement on the rukka as
Ex.PW−7/B and copy of DD no. 7A as State vs. Subramanyam Yadav etc SC No. 30/14 Page 13 of 46
Pages Ex.PW−7/C.
21. PW−8 HC Parmanand proved the copy of relevant entry of Malkhana record register no.19 as
Ex.PW−8/A.
22. PW−9, HC Charan Das deposed that on 04.07.06 while posted as head constable at PS Ashok
Nagar, he was in the staff of SI Rajesh Dangwal involved in checking the vehicles in front of St. Mary
School at about 10:00 am and at that time SI Rajesh received secret information that two persons
involved in robbery in the area of Nizamuddin would come on Bajaj Platinum red motorcycle from
the side of Khoda to go towards Kondli and would be in possession of illegal arms; that the IO SI
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Rajesh shared the secret information with the SHO and members of the raiding team; that the IO
contacted 4−5 public persons to join as witness but none agreed; that at about 10:50 am, one red
Bajaj Platinum motorcycle without a number plate with two persons on it came at a fast speed and
on seeing the police team the motorcycle rider tried to accelerate by taking U−turn but was chased
and apprehended on the pointing out of secret informer; that on interrogation, driver of the State vs.
Subramanyam Yadav etc SC No. 30/14 Page 14 of 46 Pages motorcycle disclosed his name as Ombir
and the pillion disclosed his name as Ramesh; that from personal search of accused Ombir, carried
out by Ct. Dev Vrat, one country made pistol and a live cartridge were recovered; that IO recorded
statements Ex.PW−9/A and Ex.PW−9/B respectively of accused Ombir and Ramesh; that accused
Ombir and Ramesh took out one pearl necklace each and handed over the same to the IO which
were seized by the IO after placing the same in plastic containers sealed with the seal of RD vide
seizure memos Ex.PW−9/C and Ex.PW−9/D; that the IO seized the motorcycle of the accused
persons vide memo Ex.PW−9/E and arrested the accused persons; that in pursuance of the
disclosure statement of accused Ombir and Ramesh, the police team went to the house of accused
Ramesh from where a sum of Rs.20,000/− and jewelery were recovered which were kept in
polythene and containers by the IO sealed with the seal of RD and seized vide memo Ex.PW−9/F.
PW−9 also narrated the manner of recovery conducted from the house of accused Ombir and
identified the case property as Ex.P−1 to Ex.P−27. In his cross examination, PW−9 stated that to the
house of accused Ramesh, State vs. Subramanyam Yadav etc SC No. 30/14 Page 15 of 46 Pages they
went on foot and it took about 10−15 minutes to reach there; that the house of Ramesh consists of
single storey with 2−3 rooms of medium size and the recovery was effected from a room which was
in front of the gate; that at the time of recovery mother of accused Ramesh and some children also
were present in the house, which was surrounded by public; that the currency notes recovered from
accused Ramesh were 20 notes of Rs.500 denomination and 10 notes of Rs.100 denomination; that
the containers in which the recovered articles were packaged had been brought from a nearby scrap
dealer shop and the containers were transparent but he did not know as to who had brought the
same from the scrap dealer.
23. PW−10 Ct. Pramod Kumar deposed about the manner of arrest of accused Subramanyam Yadav
@ Rahul Madrasi, who as mentioned above is now a proclaimed offender. Further, PW 10 deposed
that after arrest of accused Subramanyam on 10.7.2006, the police party alongwith the accused went
to police post Sarai Kale Khan, from where the IO collected the information as regards the
policemen who were on duty on the day shift of 03.7.2006; that accused constable Dayanand also
State vs. Subramanyam Yadav etc SC No. 30/14 Page 16 of 46 Pages reached the police post and
accused Rahul Madrasi immediately identified Dayanand; that the IO interrogated the accused
Dayanand and recorded his disclosure statement Ex.PW 10/F and arrested Dayanand vide memo
Ex.PW 10/G and took his personal search vide memo Ex. PW 10/H; that thereafter, the police party
alongwith accused Rahul and Dayanand reached at the place where the accused Dayanand had
taken search of Rahul and taken away the jewelery from the latter and the IO prepared the pointing
out memo; that thereafter some officials of the police party took the accused Dayanand to his house
for recovery of the jewelery.
24. PW 11 HC Surya Prakash deposed about the formal arrest of accused Omvir and Ramesh from
the court of learned Magistrate vide arrest memos Ex. PW 11/A and Ex. PW 11/B.
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25. PW 12 Ct. Kanwarpal Singh narrated the above mentioned facts as regards constitution of a
raiding party upon receipt of secret information followed by the arrest of accused Omvir and
Ramesh and the articles recovered from their personal search followed by articles State vs.
Subramanyam Yadav etc SC No. 30/14 Page 17 of 46 Pages recovered at their instance in pursuance
to their disclosure statements. In his cross examination, PW 12 stated that he had no idea as regards
the direction of opening of the house of accused Ramesh; that he could not tell as to what jewelery
was recovered from the house of accused Ramesh; that he could not tell the denomination of the
currency notes alleged recovered from the residence of accused Ramesh; that the jewelery recovered
from the house of accused Ramesh was certainly not of silver or pearl but he could not tell the
number of jewelery articles recovered; that at the time of seizure, the jewelery articles and currency
notes were lying in a corner of the house packed in a cloth parcel; that the recovered articles were
packaged by the IO in plastic boxes which were already with him in the IO bag.
26. PW 13 ASI Anoop Kumar Singh, finger print expert proved his report as Ex.PW 13/A.
27. PW 14 ASI Virender Singh deposed that on 03.7.2006 he was posted as ASI in PCR unit as
incharge of Eagle 7 PCR Van from 8:00am to 8:00pm and gunman HC Parshu Ram and Ct.
Dayanand also were with State vs. Subramanyam Yadav etc SC No. 30/14 Page 18 of 46 Pages him
on duty, that at about 11:30am on that day, accused Dayanand went away to attend a call of the
nature and returned after some time; that on 10.7.2006 he was informed by the IO about
involvement and arrest of accused Dayanand in the present case. PW 14 could not produce the call
book and duty register as the same had been destroyed by orders Ex.PW 14/A and Ex.PW 14/B.
28. PW 15 HC Satya Parkash proved a copy of FIR against accused Omvir and Ramesh as Ex. PW
15/A and his endorsement on rukka as Ex. PW 15/B.
29. PW 16 HC Satender Singh narrated the above mentioned facts as regards constitution of a
raiding party upon receipt of secret information followed by the arrest of the accused Omvir and
Ramesh and the articles recovered from their personal search followed by articles recovered at their
instance in pursuance to their disclosure statements. In his cross examination, PW 16 stated that
both the accused persons namely Omvir and Ramesh were on black motorcycle when they were
apprehended and at that time the secret informer was not with them; that State vs. Subramanyam
Yadav etc SC No. 30/14 Page 19 of 46 Pages the articles recovered from the house of accused
Ramesh were kept in an iron box in a corner.
30. PW 17 HC Jai Parkash proved the information recorded by him in PCR form as Ex.PW 17/A and
stated that the original record of PCR has been weeded out vide orders Ex.PW 17/B1 and Ex.PW
17/B2.
31. PW 18 Ct. Dev Vrat Singh narrated the above mentioned facts as regards constitution of a raiding
party upon receipt of secret information followed by the arrest of accused Omvir and Ramesh and
the articles recovered from their personal search followed by articles recovered at their instance in
pursuance to their disclosure statements. In his cross examination, PW 18 stated that after arrest
they went to the house of the accused on motorcycle and another vehicle called from the police
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station; that the articles recovered from the house of accused Ramesh were gold like and silver like
which were kept in a box handed over by accused Ramesh to the IO; that all the jewelery articles so
recovered were placed in a white cloth pullanda and the same were sealed with the seal of RD.
State vs. Subramanyam Yadav etc SC No. 30/14 Page 20 of 46 Pages 31.1 PW 19 SI Harbir Singh
deposed that on 03.07.06 while posted as sub inspector at PS Hazrat Nizamuddin, on receipt of DD
no. 7A, he reached the spot and recorded statement of the complainant Smt. Preeti Paliwal and sent
the same for registration of FIR after preparing rukka Ex.PW−19/A and he also prepared site plan
Ex.PW−19/B and got the spot inspected by crime team; that on 05.07.06 he received information
that some of the accused persons wanted in the present case had been arrested by the police of PS
Ashok Nagar in case FIR No. 286 for offence under Section 411 IPC; that on 06.07.06 he arrested
accused Govind Singh from the bus stand near Mayur Vihar and subsequently it was revealed that
Govind Singh was a juvenile; that on 10.07.06 he alongwith Ct. Vinay and Ct. Pramod, upon
information, reached New Delhi Railway Station and at the instance of secret informer arrested the
accused Subramanyam Yadav @ Rahul, from whose bag two gold necklace, one anklet and one ear
gold chain were recovered, which he seized vide seizure memo Ex.PW−19/D after converting the
same into a sealed pulanda; that he arrested the accused Subramanyam Yadav who disclosed that
when the State vs. Subramanyam Yadav etc SC No. 30/14 Page 21 of 46 Pages accused persons were
going with the robbed articles, PCR personnel met them on the way and took away from them all the
robbed articles; that thereafter, he inquired from the PCR zonal office regarding the duty of the
police personnel on 03.07.06 at the PCR Van and was informed that the concerned police official
would again be posted on 10.07.06 at night; that when at the time of change of duty, Ct. Dayanand
reached the police post Sarai Kale Khan, the accused Subramanyam Yadav identified Dayanand as
the PCR personnel who had taken away the robbed articles, so Dayanand was interrogated and
taken to the place where the robbed articles had been kept; that the accused Dayanand was arrested
and in pursuance of the disclosure statement got recovered from his house one pair of loops, one
pendant and one ring which were seized by him; that on 13.07.06 he formally arrested the accused
Ramesh and Ombir who had been produced in the court; that on 31.07.06 TIP of the accused
persons was conducted, in which they refused to join; that on 01.08.06 TIP of case property was
conducted in which the complainant identified the case property and the same was released to her
on superdari. State vs. Subramanyam Yadav etc SC No. 30/14 Page 22 of 46 Pages 31.2 In his cross
examination, PW−19 admitted that accused Subramanyam had not given the description of the
jewelery which he had shared with the co−accused; that he arrested the accused Dayanand at about
09:00 pm from police post Sarai Kale Khan where other police officials also were present but he did
not record their statements and did not even remember their names; that accused Dayanand also
did not give any description of the articles received by him from accused Subramanyam; that he
took accused Dayanand to the residence of the latter in a TSR but did not join the TSR driver as a
witness to recovery and did not remember having paid even the fare; that he had asked 3−4
witnesses from neighborhood of Dayanand but they refused to join investigation and did not
disclose their names and addresses; that there were family members of accused Dayanand in that
house but he did not remember their names or relationship with the accused; that in the first
complaint, the complainant had not given any specific description or weight of the allegedly robbed
articles and had not mentioned even the articles allegedly recovered from the house of accused
Dayanand; that the State vs. Subramanyam Yadav etc SC No. 30/14 Page 23 of 46 Pages
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complainant had not even disclosed as to from where the allegedly robbed articles had been
purchased nor produced any receipt; that he had collected similar articles from jewelers for mixing
up with the case property at the time of TIP but did not remember the names or addresses of the
jewelers or the particulars of the articles used for mixing up during TIP; that he also did not
remember as to how many articles were collected by him for the purposes of mixing up with the case
property during TIP; that the list of the allegedly robbed articles was provided to him by the
complainant on 04.07.06 but the said list did not mention the six jewelery articles shown at serials
no.1−6 in the seizure memo of the articles allegedly recovered from accused Ramesh; that the list of
the allegedly robbed articles did not mention the amount or denominations of the currency notes;
that he never asked the complainant to submit any photograph showing the allegedly looted articles;
that during the investigation, although he came to know that the articles allegedly recovered from
accused Ramesh did not match with the list of the looted articles, and he brought this to the notice
of the complainant, but she State vs. Subramanyam Yadav etc SC No. 30/14 Page 24 of 46 Pages
stated that she did not remember the exact items as so many articles of jewelery were looted, so he
insisted on the complainant to provide the list of remaining robbed articles but she did not do so;
that even before TIP he had disclosed to the complainant that the articles recovered from accused
Ramesh did not match with the list of robbed articles but the complainant stated that she would
identify her articles as and when shown and she did not remember about every article; that prior to
the TIP, the complainant had never disclosed to him in writing or otherwise the articles which were
her own.
32. PW−20 SI Rajesh Dangwal narrated the above mentioned facts as regards constitution of a
raiding party upon receipt of secret information followed by the arrest of the accused Omvir and
Ramesh and the articles recovered from their personal search followed by articles recovered at their
instance in pursuance to their disclosure statements. In his cross examination PW−20 stated that he
did not share the secret information with his superior officer; that he did not verify the ownership of
the motorcycle nabbed by him; that he did not join any public person at State vs. Subramanyam
Yadav etc SC No. 30/14 Page 25 of 46 Pages the time of arrest of the accused; that to the house of
accused Ramesh they went on foot and also carried alongwith them the motorcycle of the accused;
that house of accused Ramesh consisted of 2−3 rooms; that some of the containers in which the case
property was packaged were got arranged by him through HC Charan Das, though he did not pay for
the same; that he did not match the articles recovered from the house of accused Ramesh with the
list of articles provided by complainant and he seized the articles merely because the accused
provided the same.
33. The entire above described evidence was put to both the accused persons in their statements
under Section 313 Cr.P.C. Both the accused persons denied the correctness and truthfulness of the
prosecution evidence and pleaded innocence but opted not to lead any evidence in their defence.
34. During final arguments, learned Additional Public Prosecutor argued that prosecution has
successfully proved its case beyond reasonable doubt. It was argued by learned prosecutor that the
accused Ramesh was duly identified during trial by the complainant, State vs. Subramanyam Yadav
etc SC No. 30/14 Page 26 of 46 Pages though he had refused to join TIP; even the stolen articles
were recovered from the possession of accused Ramesh, which articles were identified by the
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complainant during TIP. It was further argued that as regards accused Dayanand, there is a clear
evidence of the recovery of stolen articles from his possession, which articles were identified by the
complainant during TIP. Hence, as per prosecution, both the accused are liable to be convicted.
35. Per contra, learned defence counsel filed written arguments and also submitted orally
contending that prosecution has miserably failed to prove its case beyond reasonable doubt. It was
argued that since no public witness was joined at the time of the alleged recovery of articles from the
accused persons, the recovery becomes doubtful. It was also contended that even as per the
investigating officer PW−19, accused Subramanyam had told that all the allegedly robbed articles
had been taken away by the PCR officials, so there was no scope for any recovery from any of the
accused persons. Learned defence counsel also submitted that there are large number of major
contradictions in the testimony of State vs. Subramanyam Yadav etc SC No. 30/14 Page 27 of 46
Pages witnesses related to the recovery and arrest of the accused persons.
36. As mentioned above, the present trial pertains only against two accused persons namely Ramesh
and Dayanand. Therefore, the discussion as regards the remaining accused persons is not being
gone into details.
37. As also described above, the accused Dayanand was admittedly not involved in the incident of
the alleged robbery, so there was never any occasion for the complainant to see Dayanand; whereas
accused Ramesh, as per prosecution was involved in the alleged robbery but was not previously
known to the complainant and was not arrested from the spot. Therefore, the entire prosecution
case hinges upon the factum of identification of accused Ramesh; the factum of recovery of the
allegedly looted articles; and identification of the allegedly looted articles by the complainant to be
her articles.
38. At this stage, it would be apposite to traverse through the legal position, relevant to the present
case.
39. In the case of Sahib Singh vs State of Punjab, reported as State vs. Subramanyam Yadav etc SC
No. 30/14 Page 28 of 46 Pages 1997 (1) CC Cases 13 SC, the Hon'ble Supreme Court held that where
IO made no attempt to join public witnesses before conducting the search, the consequent recovery
loses its credence. In the case of Sadhu Singh vs State of Punjab, reported as 1997 (2) CC Cases 8,
the Hon'ble High Court held that stereotyped statement of non−availability of public witnesses is
not enough when at the relevant time it was not difficult to arrange for independent public witnesses
to join recovery or arrest.
40. In the case of Balbir Singh vs State of Punjab, reported as 1997 (1) CC Cases 136 SC, the Hon'ble
Supreme Court held that where there were no specific marks on the recovered articles, the recovery
becomes a weak piece of evidence.
41. In the case of State vs Maqsood Ahmed reported as 163(2009) DLT 39 DB, a Division Bench of
the Hon'ble Delhi High Court held that although refusal to participate in TIP without sufficient
reason goes adverse to the accused, but conviction cannot be done on the sole ground of refusal to
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join TIP.
42. In the case of Leela Ram vs State, 1990 (2) CC cases 402, State vs. Subramanyam Yadav etc SC
No. 30/14 Page 29 of 46 Pages the Hon'ble Delhi High Court held as under:
"27. Evidence of identification is to be regarded as inherently weak, least to be relied
upon and in itself an unsafe basis for conviction. Even a mere possibility that the
accused was or could have been shown would be sufficient justification for refusal to
participate in identification proceedings and to reject identification evidence."
43. In the case of Parmod Kumar vs The State 1990 CrLJ 68 the Hon'ble Delhi High Court held:
"The witnesses who are examined by the prosecution should have been asked as far
as possible to give broad description of the accused while recording their statement
under Section 161 CrPC........In our view therefore, the appellant was justified in
refusing to join the test identification parade as he has clearly established the
possibility of his being shown to the eye witnesses during the course of the alleged
recovery of the alleged weapon of offence. "
44. In the case of Tain Singh vs State, 1987 CrLJ 53, the Hon'ble Delhi High Court held:
"4. It is settled law that the accused is not to prove conclusively that he was shown to
the prosecution witnesses before he declined to participate in the identification
parade.
State vs. Subramanyam Yadav etc SC No. 30/14 Page 30 of 46 Pages It is enough if he brings on
record cogent circumstances to show that he was or could have been shown to prosecution witnesses
while he was in police custody or when he was produced in court for remand."
45. In the case of Kanan & Ors. vs. State of Kerala, reported as 1979 Crl. LJ 919, the Hon'ble
Supreme Court held that where a witness identifies an accused who is not known to him, in the
court for the first time, his evidence is absolutely valueless unless there has been a previous test
identification parade to test his powers of observation. If no TIP is held, then it will be wholly unsafe
to rely on the bare testimony of the witness as regards the identification of the accused for the first
time in court.
46. In the case of Budh Sen vs State of UP, reported as AIR 1970 SC 1321, the Hon'ble Supreme
Court observed that it is considered safe rule of prudence to generally look for corroboration of the
sworn testimony of witnesses as to identity of the accused who are strangers to them, in the form of
earlier identification proceedings and the person required to identify an accused should have had no
opportunity of seeing State vs. Subramanyam Yadav etc SC No. 30/14 Page 31 of 46 Pages him after
the commission of the crime and before identification; observing that possibility of the witnesses
having seen the accused whom they were supposed to identify subsequently, the test identification
parade could not be considered to provide safe and trustworthy evidence to convict the accused.
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47. Falling back to the present case, refusal of accused Ramesh to participate in the Test
Identification Parade was pressed as an important incriminating circumstance by the prosecution. It
certainly is so, provided there was no justification for such refusal. If the overall evidence on record
read in its entirety, reflects that accused Ramesh was justified in refusing to participate in TIP, then
such refusal cannot be taken to be an incriminating circumstance.
48. So far as the identity of the accused Ramesh as one of the robbers is concerned, as mentioned
above, even as per prosecution case, accused Ramesh was not previously known to the complainant
Smt. Preeti Paliwal nor did she even describe the physical features of any of the robbers in her
statement. As regards identification of accused Ramesh, State vs. Subramanyam Yadav etc SC No.
30/14 Page 32 of 46 Pages prosecution solely relies upon his refusal to participate in TIP
proceedings. Therefore, it would be necessary to examine as to whether the refusal of accused
Ramesh to participate in TIP proceedings was for any justified reason. Even as per prosecution case,
as borne out from testimony of PW 9 HC Charan Dass, PW 12 Ct. Kanwar Pal Singh, PW 16 HC
Satender Singh, PW 18 Ct. Dev Vrat and PW 20 SI Rajesh Gangwal, accused Ramesh was arrested
on 04.7.2006 on the basis of secret information and on the same day the accused was taken for
recovery of the allegedly looted articles. As per Ex. PW 1/F, the IO applied for TIP proceedings as
belatedly as on 31.7.2006. In other words, accused Ramesh was taken out for recovery of the
allegedly looted articles much prior to the TIP. As also was the situation in the case of Parmod
Kumar (supra), possibility of the accused having been shown to the complainant cannot be ruled out
and in such circumstances, the Hon'ble Delhi High Court held the refusal to join TIP as justified.
49. Further, as per TIP proceedings Ex. PW 1/E, accused Ramesh refused to join the proceedings
clearly stating that he had been State vs. Subramanyam Yadav etc SC No. 30/14 Page 33 of 46 Pages
shown to the witnesses in the police station and his photograph also was taken in the police station
prior to the day of TIP. This statement of accused Ramesh stands corroborated by the testimony of
the complainant PW 4, who stated in her cross examination that she was confident about
involvement of accused Ramesh since after the incident police had shown Ramesh to her twice in
the court in order to identify him and that she had been shown the accused Ramesh even before
being produced in court and that accused Ramesh was shown to her without muffled face at Patiala
House Courts when she was called upon to identify him. Rather, PW 4 in her cross examination even
stated that accused Ramesh did not even enter her house with accused Subramanayam and as such,
identification of Ramesh by PW 4 in the course of her testimony for the first time is worthless. In
fact the complainant, PW 4 went a step further in her cross examination and categorically stated
that the accused Ramesh did not rob any article.
50. Even the maid PW 6 Ms. Urshila in her cross examination stated that she personally did not see
accused Ramesh robbing the State vs. Subramanyam Yadav etc SC No. 30/14 Page 34 of 46 Pages
complainant. PW 6 further stated in her cross examination that accused Ramesh was not one of
those robbers who had taken her to the other room and she was not even certain if accused Ramesh
had entered their house. PW 6 further explained in her cross examination that since she belongs to
Darjeeling, she cannot recognize faces with features different.
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51. In view of the above mentioned testimony of PW 4 and PW 6, who were the only witnesses of the
alleged robbery, it would not be safe to convict the accused Ramesh only on the basis of his refusal
to join TIP.
52. The next incriminating evidence against accused Ramesh as per prosecution is the recovery of
allegedly looted articles at his instance. Even on this count, the evidence adduced by the prosecution
fails inspire confidence. As per prosecution, the allegedly looted articles were recovered from
accused Ramesh in two installments - firstly at the time of his arrest and thereafter from his
residence on the basis of his disclosure statement. As per prosecution, at the time of his arrest
accused Ramesh took out one pearl necklace and handed over the same to the IO, who seized the
same vide seizure memo Ex. PW 9/D. The seizure memo State vs. Subramanyam Yadav etc SC No.
30/14 Page 35 of 46 Pages Ex.PW 9/D reflects that the said necklace was handed over by accused
Ramesh to the IO after taking the same out of his neck. The said exercise was carried out by SI
Rajesh Dangwal in FIR No. 286/06. One fails to understand why the accused would take out the
necklace worn by him and hand it over to the IO, when the same was not even visible and SI Rajesh
Dangwal was not even vaguely aware qua the allegedly robbed articles. More so, as would be further
discussed, there was not even any identification mark on the said necklace. In the said exercise, the
IO incorporated four witnesses, all of whom were police officials. No independent public person was
joined in the alleged proceedings of arrest of accused Ramesh, which casts doubt on the alleged
arrest and recovery proceedings.
53. As regards non joining of public persons at the time of arrest of accused Ramesh, the police
witnesses in a stereotyped manner stated in cross examination that they had requested 4−5 public
persons but none of them agreed to join as a witness; none of the police witnesses could disclose
name or address of any of those public persons whom they had State vs. Subramanyam Yadav etc SC
No. 30/14 Page 36 of 46 Pages requested to join the proceedings. Such a farcical exercise throws
doubts on the genuineness of the arrest and the recovery proceedings. The place where accused
Ramesh was allegedly arrested was in front of a school and there is nothing on record to show that
public persons with fixed place of residence or office or shop around that spot were not available.
54. Similarly, even as regards the alleged recovery of some jewelery and Rs. 20,000/− from the
residence of accused Ramesh, no independent public witness was joined despite availability. As
regards the said jewelery articles also, in the absence of specific marks of identification, in view of
above cited legal position, the recovery becomes a weak piece of evidence.
55. Not only this, even as regards the manner of the arrest and the alleged recovery at the instance of
accused Ramesh, there are number of contradictions in the testimony of the police officials who
were the witnesses, for instance as per PW 12 constable Kanwar Pal Singh, the articles recovered
from the residence of accused Ramesh were found kept in a cloth parcel in a corner of the house,
whereas according to rest of the State vs. Subramanyam Yadav etc SC No. 30/14 Page 37 of 46 Pages
prosecution case, the same were found kept in an iron box kept in the room; similarly there are also
contradictions as regards the mode by which the police party went to the residence of accused
Ramesh and even as regards the number of rooms in the house of accused Ramesh. Even as regards
the containers in which the allegedly looted articles were packaged to be sealed, there are
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contradictions in the statements of police witnesses in so far as one witness stated that the
containers were in the IO kit while the other stated that the containers were bought from a scrap
dealer shop; PW−18 contrary to entire prosecution case stated that the allegedly recovered jewelery
articles were packaged by the IO in a cloth pulanda. Contrary to the entire prosecution case that at
the time of arrest accused Ombir and Ramesh came on red motorcycle and were identified by the
secret informer, PW−16 HC Satender Singh in his cross examination stated that the accused persons
came on black motorcycle and at that time the secret informer had already left.
56. As regards the recovery of allegedly looted articles from the house of accused Ramesh, testimony
of PW 20, the investigating officer State vs. Subramanyam Yadav etc SC No. 30/14 Page 38 of 46
Pages SI Rajesh Dangwal is quite interesting. PW 20 in his cross examination stated that he did not
match the articles recovered from the house of accused Ramesh with the list of looted articles
supplied to him by the complainant and gullibly seized the same only because the accused provided
the same to him. Such a statement, that too from the investigating officer puts the alleged recovery
into serious doubt. Not only this, even the other investigating officer PW 19 SI Harbir Singh in his
cross examination specifically stated that the list of the allegedly robbed articles supplied to him by
the complainant did not mention any of the jewelery articles recovered from the house of accused
Ramesh. In other words, even if it is believed that certain jewelery articles were recovered from the
house of accused Ramesh, it is doubtful if the same were the looted articles.
57. As regards the articles allegedly recovered from both the accused persons, there is no reliable
evidence that the same were the articles looted from the house of the complainant. The complainant
Smt. Preeti Paliwal in her cross examination as PW 4 stated that the allegedly State vs.
Subramanyam Yadav etc SC No. 30/14 Page 39 of 46 Pages looted jewelery articles did not bear any
specific description or mark of identification and such articles are easily available in the market; that
she could not produce any document of her ownership or even possession over the allegedly looted
jewelery articles.
58. As regards the identification of the allegedly looted articles by the complainant to be her articles,
her testimony as PW 4 raises serious doubts even as regards genuineness of TIP proceedings. In her
cross examination, PW 4 stated that at the time of identification of the jewelery articles, no similar
articles were put before her alongwith the allegedly recovered articles; that after about 4−5 days of
the incident she received a telephone call from police informing about recovery of her jewelery
whereafter her husband and father went to the police station and were shown the recovered jewelery
and after returning from the police station, her husband told that some of the looted jewelery had
been recovered and had been shown to him in the police station. Most interestingly, PW 4 stated in
her cross examination that there was no special mark of identification on her jewelery items but she
was certain State vs. Subramanyam Yadav etc SC No. 30/14 Page 40 of 46 Pages that the recovered
jewelery belonged to her and she identified the same solely because of her belief.
59. Even as regards the money allegedly recovered and the money allegedly looted, the evidence
brought by prosecution fails to inspire confidence. The list Ex. PX of the allegedly looted articles
describes the money looted as cash Rs. 50,000/− plus Rs. 20,000/− without disclosing the numbers
or denomination of the currency notes; in his testimony as PW 5, husband of the complainant
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described the looted money as a wad of 100 currency notes of rupees 500 denomination each; but as
per PW 9, the money recovered from the house of accused Ramesh contained 20 currency notes of
rupees 500 denomination and 10 currency notes of rupees 100 denomination. It remains
unexplained as to from where the currency notes of rupees 100 denomination came out to be
described as the looted money, since it is nobody's case that some amount of the looted money was
spent or converted into smaller denominations by accused Ramesh.
60. As regards accused Dayanand, case of prosecution is that State vs. Subramanyam Yadav etc SC
No. 30/14 Page 41 of 46 Pages after arrest, accused Subramanyam Yadav @ Rahul Madrasi
disclosed that when the accused persons were going with the robbed articles, PCR personnel met
them on the way and took away some of the robbed articles; on the basis of the said disclosure
statement, IO SI Harbir Singh carried out further investigation which led to the arrest of accused
Dayanand who was identified at the time of arrest by accused Subramanyam Yadav; thereafter, at
the instance of accused Dayanand, from his residence a pair of loops, a pendant and a ring were
recovered.
61. Accused Dayanand was arrested, as per prosecution from police post Sarai Kale Khan at the time
of change of duties of PCR personnel. If it was so, there must have been some documentary record
in the form of entries in the daily diary register or any other record reflecting the arrest of accused
Dayanand from or even near police post Sarai Kale Khan when Dayanand reached there to join duty.
But no such record was produced by prosecution.
62. Even statement of any official of police post Sarai Kale Khan, what to say of Incharge police post,
was recorded by the IO as admitted State vs. Subramanyam Yadav etc SC No. 30/14 Page 42 of 46
Pages by PW 19 SI Harbir Singh in his cross examination.
63. Not just this, prosecution did not even place on record any document reflecting that on
03.7.2006 accused Dayanand was on duty on PCR, as alleged in the disclosure statement of accused
Subramanyam Yadav. I am conscious that as per Ex. PW 19/F and Ex. PW 19/G, the PCR records
were weeded out. But the said records were weeded out only after 10.6.2010. Having arrested
constable Dayanand on 10.7.2006, the IO ought to have immediately seized the relevant duty
records of constable Dayanand. Prosecution cannot be given benefit of their fault in not having
seized the necessary documentary record at the earliest instead of waiting till the weeding out. Even
photocopy of any duty record of constable Dayanand has not been filed by prosecution.
64. Like in the case of accused Ramesh, in the case of accused Dayanand also, no independent public
witness was joined by the IO at the time of the alleged search and seizure at the house of accused
Dayanand and a stereotyped explanation has been brought forth that 3−4 witnesses were requested
to join the investigation but they refused, at the State vs. Subramanyam Yadav etc SC No. 30/14
Page 43 of 46 Pages same time admitting that the IO did not even remember names or addresses of
such persons and no action taken against them.
65. As regards the identification of the jewelery articles allegedly recovered from the house of
accused Dayanand also, the evidence that the same were the articles owned or possessed by the
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complainant, the evidence as described above is absolutely unworthy of credence as even those
articles form part of the TIP proceedings regarding which testimony of the complainant PW 4 has
been described above at length.
66. As regards the articles used for mixing up with the allegedly recovered articles at the time of TIP,
the investigating officer PW−19 SI Harbir Singh stated in cross examination that in the first
complaint or even the subsequent statement, the complainant had not mentioned the three articles
allegedly recovered from the house of accused Dayanand; that even weight of those articles or even
description of the shop from where the same were purchased was not given by the complainant. But
despite that he weighed the said articles, for no reason. PW−19 further stated that he had collected
the similar articles from jewelers for mixing State vs. Subramanyam Yadav etc SC No. 30/14 Page 44
of 46 Pages up with the allegedly recovered articles at the time of TIP but he did not remember as to
how many articles were used for mixing up and also did not remember the names and addresses of
the jewelers from whom the said articles for mixing up were obtained.
67. To summarize, there is no reliable evidence reflecting that accused Ramesh was one of the
robbers involved in the alleged offence; there is no reliable evidence reflecting that the articles
allegedly recovered from and at the instance of the accused persons are the articles that were owned
or possessed by the complainant or the same were looted in the alleged incident; there is no reliable
evidence reflecting that accused Dayanand was even involved in any manner in the alleged offence.
68. In view of above discussion, it is held that prosecution has failed to prove its case beyond
reasonable doubt. Consequently the accused persons are held not guilty of the offence they were
charged with and accordingly both the accused are acquitted.
69. However, as regards the accused Subramanyam Yadav @ State vs. Subramanyam Yadav etc SC
No. 30/14 Page 45 of 46 Pages Rahul Madrasi, the matter shall be taken up again as and when he is
arrested. File be consigned to Records.
Announced in the open court                   (GIRISH KATHPALIA)
     on 05.05.2014                     ADITIONAL SESSIONS JUDGE−05, 
                                        SOUTH EAST, SAKET, NEW DELHI
State vs. Subramanyam Yadav etc   SC No. 30/14          Page 46 of 46 Pages
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