Delhi District Court
Fir No. 87/05; State vs . Mohd. Aziz Etc. Page 1 Of 39 on 29 July, 2011
IN THE COURT OF SH. RAVINDER DUDEJA: ADDL SESSIONS
JUDGE03: NW : ROHINI : DELHI
Sessions Case No. 14/08
FIR No. 87/05
PS: Punjabi Bagh
U/s: 328/381/120B/
411/34 IPC
STATE
Versus
(1) Mohd. Aziz @ Kabir
s/o Sh. Mannan Khan
r/o Jayanti Pur Bazar, Hasir Hatt,
PS Mushidabad, W. Bengal
(2) Akhilesh Kumar @ Kamlesh
s/o Sh. Jagdish Prasad
r/o village Shyampur, PS Udhampur,
Distt. Gorakhpur, UP
(3) Kamal
s/o Sat Narain
r/o S74/36, Harijan Camp,
Khanpur, Ambedkar Ngr. Delhi
(4) Raju @ Chotu @ Kalu @ Anil
s/o late Sh. Krishan Prasad
r/o village Murgiachat, PS Islampur,
FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 1 of 39
Distt. Nalanda, Bihar
(5) Bhim Bahadur Sunar
s/o Sh. Vajan Bahadur,
r/o Village Nareshwar,
Distt. Gorkha, Nepal
Date of Institution: 01042005
Date of arguments: 08072011
Date of judgement: 27072011
J U D G M E N T
1. The Prosecution case is that on 27012005 on receipt of DD no. 32B, SI Ishwar Singh along Ct. Devender reached at H. No. 40/72, West Punjabi Bagh where complainant Gurcharan Singh Batra gave a statement that his cousin Manjinder Singh had gone to Sirsa since 25012005 in connection with election in Haryana and that at about 6:30 pm he received a telephonic call from him that mother of his domestic servant Raju had informed him on telephone that domestic servant Ram (Nepali) has committed theft at his house after administering something to Raju. On receipt of telephonic call he came at the house of Manjinder Singh and found domestic servant Raju in an intoxicated condition. His mother was also present in the house. FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 2 of 39 The lock of the store room was found broken. The lock of the almirah was also found broken and the goods were lying scattered. Empty jewellery boxes were lying. On the statement of Gurcharan Singh Batra, FIR u/s 328/381/34 IPC was registered. Crime Team inspected the spot and lifted the chance prints. Raju was rushed to Maharaja Agrasen Hospital. His gastric lavage was preserved. When Manjinder Singh returned to his house, he gave the list of his stolen jewellery and cash. During investigation, SI Ishwar Singh recorded statement of domestic servantcumdriver Mohd. Aziz @ Mohd. Hassan @ Raju who stated that domestic servant Ram along with old servant Rakesh and his associates Akhilesh, Kamal, Chotu @ Raju, Aziz and Bhim Bahadur in pursuance of their common conspiracy administered some intoxicating substance with tea and committed theft from the house. Accused Bhim Bahadur, Akhilesh @ Kamlesh, Kamal, Raju @ Chotu and Mohd. Aziz were arrested. They got recovered their share of jewellery articles. Accused Mohd. Aziz had also got recovered tablet ATIVAN 1mg Lorazepam in huge quantity. Jewellery articles were released on supardari to Manjinder Singh. Gastric lavage was sent to FSL Rohini for opinion. Chance prints FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 3 of 39 were sent to FPB, Malviya Nagar for comparison with specimen finger prints of the accused. Accused Ram @ Vishnu and Rakesh were residents of Nepal and could not be arrested. Pending receipt of FSL result and finger print opinion, chargesheet was prepared u/s 328/381/34 & 120B/411 IPC against the arrested accused and they were sent to court for trial.
2. After compliance of section 207 Cr. P.C., case was committed to Session Court. Charge u/s 120B/328/380 IPC r/w 120B IPC was framed against all the accused. Separate charges were also framed against accused u/s 411 IPC with regard to recovered stolen jewellery. Accused pleaded not guilty.
3. In order to prove its case, Prosecution examined 18 witnesses. PW1 is Ct. Devender. He had accompanied the IO to the spot. He stated that IO had recorded the statement of Gurcharan Singh and sent him to PS for registration of FIR.
PW2 is Aziz Hussain. He deposed that he was working as domestic servant at the house of Manjinder Singh. He took the parents of Manjinder Singh to Sirsa on 25012005. He FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 4 of 39 received a call from Manjinder Singh that since he was coming to Sirsa, so he should come back to Delhi. On 25012005, he came back to H. No. 40/72, Punjabi Bagh at 10:30 pm. By then, Manjinder Singh had already left for Sirsa. The other domestic servant Ram was present in the house. On 26012005 at about 7:30 am Rakesh, an old domestic servant came to meet Ram. Rakesh had got Ram employed in the house. Rakesh had a talk with Ram at gate of house and handed over the mobile to him. On 27012005 at about 7 am, Rakesh again came at the house and had a talk with Ram and thereafter Rakesh left the house. After about an hour, Rakesh again came at the spot with five associates who are identified as five accused. He stated that accused were made to sit in the outer Drawing Room by Ram. He objected to the same and asked them to leave the house at once. All the accused then left the house. He further deposed that at about 9 am Ram prepared tea and immediately called someone on the mobile and at that moment, the bell of the house also rang. He went at the main gate to answer the bell but there was no one outside. He returned and took the tea given to him by Ram. After taking the tea, he lost his consciousness. He stated that he FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 5 of 39 regained his senses at the hospital. He further stated that on 06022005 he wall called by SI Ishwar Singh at the PS Punjabi Bagh to identify the accused persons and he identified them.
PW3 is Seema @ Asma, mother of PW2 Aziz Hussain. She deposed that on 27012005 at about 6 pm he went to the house of Manjinder Singh. She saw the main gate lying open. She called her son but finding no response, she entered the house and found her son lying unconscious in the Drawing Room and also found that boxes and the almirah were lying open and were scattered. She tried to revive the senses of her son by pouring water on him. With great difficulty, she brought him to some consciousness and asked him the number of his employer. He gave the number of his employer with great difficulty. She then telephoned his employer through STD booth at Punjabi Bagh but when she returned at the house of Manjinder Singh, she found that one Mr. Batra, a friend of Manjinder had come.
PW4 is Ct. Suraj Bhan. He joined investigation with IO on 04022005. He stated that he along with SI Ishwar Singh came at Tis Hazari where IO had applied for Production warrants of accused Akhilesh, Aziz, Raju, Chotu and Kamal. He stated that FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 6 of 39 accused Akhilesh was arrested vide arrest memo Ex. PW4/A. With permission of the court and on interrogation, accused Akhilesh gave disclosure statement Ex. PW4/B. Accused Akhilesh then led them to village Gopalpur from where he got recovered one small bag of Om Shivam Jewellers which contained some jewellery articles and watch which were identified by Manjinder Singh who was also with them at the time of recovery. He stated that recovered goods were kept in a cloth parcel and sealed with the seal of IS and seized vide memo Ex. PW4/C. He identified the recovered articles as Ex. P6 to P9.
PW5 is ASI Sultan Singh, Duty Officer. He had recorded the FIR Ex. PW5/A.
PW6 is Ct. Ramesh. He had joined the investigation with SI Ishwar Singh on 03022005. He stated that he along with SI Ishwar Singh and Manjinder Singh went to Azadpur bus stand from where accused Bhim Bahadur was apprehended on the basis of secret information and on his search, one golden locket was recovered from the right pocket of his pant which was identified by Manjinder Singh. The locket was kept in a cloth parcel which was sealed with the seal of IS and then seized vide memo Ex. PW6/A. FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 7 of 39 He stated that accused Bhim Bahadur gave disclosure statement Ex. PW6/B and led them to H. No. 467, gali no. 2, behind Budh Mandir, Azadpur village and from the first floor of the house where he was residing, he took out a polythene which contained one gold chain, one gold bangle, one pair of gold ear tops and one gold tikka. The ornaments were identified by Manjinder Singh. They were sealed in a cloth parcel and seized vide memo Ex. PW6/C. He further deposed that on 05022005, he along with other police staff and accused Kamal went to Khanpur and that accused Kamal got recovered a polythene bag from his jhuggi which contained ruby necklace, ear jhumkas and a bangle. The recovered ornaments were kept in cloth pullanda and sealed with the seal of IS which were then seized vide memo Ex. PW9/E. PW6 was declared hostile and was crossexamined by Ld. APP. He admitted that on 05022005 all the accused had pointed out the place of occurrence and pointing out memo was prepared. He admitted that jhuggi no. of accused Kamal was S74/36, Khanpur, Delhi. He admitted that accused Kamal had also got recovered one crystal necklace from his jhuggi apart from the other jewellery articles as stated above and Manjinder Singh identified his stolen FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 8 of 39 jewellery at the jhuggi of accused Kamal. He identified the recovered ornaments.
PW7 is HC Suresh Chandra, the then MHCM. He proved the relevant entries of Register no. 19.
PW8 is Gurcharan Singh Batra, cousin of Manjinder Singh. He proved the statement given to the police as Ex. PW8/A. PW9 is Manjinder Singh, the occupant of H. No. 40/72, West Punjabi Bagh, Delhi. He deposed that about 2½ months prior to the incident, he had employed a servant Ram @ Vishnu at his house at the instance of Deepak, another servant employed in his neighbourhood. He was also having another servant Raju @ Mohd. Aziz at his house who also used to work as driver with him. He stated that on 25012005, he had gone to Sirsa with his family for some work, leaving behind his servant Raju and Ram @ Vishnu. On 27012005 at about 6:30 pm the mother of Raju gave a telephonic call to him on his mobile phone telling that Raju was lying in an intoxicating condition at his house and that other servant Ram @ Vishnu was missing from the house. She also informed him that lock of the almirah was found broken and the household articles were scattered in the house. FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 9 of 39 On receiving this information, he immediately gave a telephonic call to his friend Gurcharan Singh Batra asking him to visit his house to verify the incident. He himself also left Sirsa for Delhi and on reaching his house, he found that jewellery and cash were missing from almirah from his house. His servant Raju had been taken to private nursing home. He gave a list of stolen articles to the IO which is Ex. PW9/A. He deposed that on 03022005 he along with IO and secret informer went in search of accused persons and on the pointing out of secret informer, accused Bhim Bahadur was apprehended and on his formal search, one gold locket of square shape was recovered from the right pocket of his pant. He identified the locket which was stolen from his house. The locket was sealed by the IO and seized vide memo Ex. PW9/B. He proved the arrest memo and personal search memo of accused as Ex. PW9/C and PW6/A. He stated that accused Bhim Bahadur, on interrogation, gave disclosure statement Ex. PW6/B wherein he disclosed that he had concealed the jewellery articles at his home on a tand and then took them to the house of one Ram Gopal at Azadpur village, H. No. 467, Gali no. 2, behind Budh Mandir at first floor rented room from where he got FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 10 of 39 recovered one packet wrapped in a polythene which contained one bangle in bended condition, one gold chain, one pair of ear tops, one gold tikka which were identified by him. The jewellery articles were then sealed in a pullanda and seized vide memo Ex. PW6/C. He further stated that on 05022005 all the accused had pointed out the place of occurrence vide pointing out memo Ex. PW9/D and thereafter accused Kamal took them to his jhuggi at S74/36, Harijan Camp, Khanpur, Delhi and got recovered one polythene bag from his jhuggi which contained one gold ruby crystal necklace, one ear ring, one gold bangle, one pearl necklace which were identified by him and the same were taken into possession vide memo Ex. PW9/E after keeping them in a sealed pullanda. He further deposed that on 04022005 accused Raju @ Chotu took them at H. No. 67/3, Gali no. 5, CBlock, Khajuri Khas, Delhi and opened his rented room and got recovered one plastic packet from the store situated on the kitchen of the room. The polythene contained one gold bangle, one gold pendant set with ear rings, one gold chain, one pearl necklace. The jewellery articles were sealed by the IO and seized vide memo Ex. PW9/F. He further deposed that on 04022005 FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 11 of 39 accused Aziz @ Kabir took them to village Gopalpur at first floor at the house of Chander Pal Khari and got recovered a polythene packet from a suitcase from his rented room. On checking, the packet contained one gold bangle, one gold pendant, one pair of silver ear tops, one pearl necklace from the polythene. From the same polythene, 128 strips of tablet lorazepam Ativan 1 mg were also recovered. The same were kept in separate sealed pullandas and seized vide memo Ex. PW9/G. According to him, accused Akhilesh had also got recovered one jewellery pouch of Shivam Jewellers lying behind the idols in a temple in the almirah on his rented room at first floor, village Gupalpur after breaking open the lock of the said room. On checking the pouch, one necklace, one gold bangle, one pair of gold ear tops, one Rado wrist watch of black colour were recovered which were identified by him and kept in a sealed pullanda and seized vide memo Ex. PW4/C. He stated that all the jewellery articles were released to him on supardari. He produced the jewellery articles in court and identified them and also identified the tablets.
PW10 is Ct. Pritam Singh. He was the Beat Constable of the area. He had rushed Raju to Maharaja Agrasen FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 12 of 39 Hospital for treatment. After medical examination, Dr. handed over him a sealed pullanda and a sample seal of Maharaja Agrasen Hospital which were handed over by him to the IO and the same were seized vide memo Ex. PW10/A. PW11 is HC Ashok Kumar. He had deposited the exhibits at FSL.
PW12 is SI Manoj Kumar, Incharge, Mobile Crime Team. He had inspected the spot with his team. He stated that Proficient of his team lifted 6 chance prints from the main wooden and steel almirahs lying in the said house and chance prints were photographed by HC Vijay Kumar, photographer. He proved his report as Ex. PW12/A. PW13 is Ct. Rakesh. He joined the investigation with SI Ishwar Singh on 04022005. He deposed that accused Raju was arrested with permission of the court and he gave disclosure statement Ex. PW13/A wherein he disclosed that he had concealed his share of stolen jewellery articles at his rented house and can get the same recovered. Thereafter, Raju had led them to his rented room at H. No. 67/3, Gali no. 5, CBlock, Khajuri Khas and got recovered one pullanda wrapped in plastic bag. On FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 13 of 39 opening the pullanda, one gold bangle, one pendent set, one gold ear ring, one chain, one pearl necklace were found rapped in newspaper. The complainant Manjinder Singh and Reshma residing in neighbourhood of accused, were also present at that time of recovery. The recovered jewellery articles were kept in the same newspaper and sealed and pullanda was seized vide memo Ex. PW9/F. He identified the recovered jewellery articles as Ex. P14 to P17.
PW14 is HC Randhir, Proficient, Crime Team. He had lifted 6 chance prints from the spot. He proved his report as Ex.
PW12/A.
PW15 is Ct. Lakhmi Chand. He joined the
investigation with IO on 04022005. He stated that accused Aziz was arrested with the permission of court and on interrogation accused Aziz gave disclosure statement Ex. PW15/A. He had offered to get his share of jewellery articles recovered from his tenanted room and also offered to get recover the intoxicating drugs. He deposed that accused were taken to village Gopalpur in Tata 407 and that accused Akhilesh and Aziz led the police party to Sonakhari Bhawan at the first floor rented room. Accused FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 14 of 39 Akhilesh brought out a key which was kept underneath a brick lying on the left side of the door and he opened the door of the room. Accused Aziz got recovered one gold bangle, silver tops, a necklace of white moti and a gold pendant from a polythene bag kept in a suitcase underneath the folding bed. Complainant Manjinder Singh who accompanied the police party in his car, identified the stolen jewellery. Accused Aziz had also got recovered 128 strips of intoxicating tablets, each strip was having 10 tablets from a polythene bag kept in a handbag underneath the folding bed. The recovered jewellery articles and tablets were kept in separate sealed pullandas and seized vide memo Ex. PW9/G. He further deposed that accused Akhilesh had also got recovered his share of jewellery articles from the same room which was seized by the IO on the identification of Manjinder Singh.
PW16 is Dr. Alok Kumar from DDU hospital. He had conducted the medical examination of Raju. He proved the MLC as Ex PW16/A. PW17 is N. K. Sharma, Finger Print Expert. He had made comparison of the chance prints with specimen finger prints. FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 15 of 39 He deposed that on examination, he found that chance prints Mark Q5 was identical with the little finger impression Mark S1 on the finger print slip of Akhilesh @ Kamlesh. He proved his report as Ex. PW17/A. PW18 is Inspector Ishwar Singh. He is the Investigating Officer of this case. During investigation, he went at the spot, recorded statement of Gurcharan Singh Batra, prepared the rukka Ex. PW18/B and sent the same at PS through Ct. Devender. He had called the Crime Team at the spot and prepared the site plan Ex. PW18/C. He had rushed Raju to Maharaja Agrasen Hospital through Ct. Pritam Singh. After medical examination, he had seized the gastric lavage which was later sent to FSL. He stated that on 03022005 he came to know through newspaper that accused wanted in the present case, were apprehended by Crime Branch and were in J/C. He filed application for Production warrants of accused Mohd. Aziz, Akhilesh, Raju @ Chotu and Kamal. He had apprehended accused Bhim Bahadur from Azadpur bus stand on the pointing out of informer and effected recovery of stolen goods from him which were identified by Manjinder Singh. The other accused FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 16 of 39 were arrested on 04022005. He recorded their disclosure statements and recovered the stolen goods at their instance in the presence of Manjinder Singh who identified the jewellery articles. He obtained finger prints of the accused which were sent to Finger Print Bureau along with chance prints lifted from the spot. On receipt of report, same was filed in the court. He further deposed that during investigation, servant Raju identified the accused persons.
4. Statements of all accused were recorded u/s 313 Cr. P. C. wherein they stated that they were innocent and were falsely implicated in the present case.
5. In his defence, accused Kamlesh examined DW1 Sunil Kumar who deposed that accused Kamal is his neighbour and used to do work of sofa repair and at times also used to work with his father in his kachori selling business. He stated that on 03022005 he was informed by the father of accused Kamal that he had been arrested by the police in some case. He accompanied his father first to PS Ambedkar nagar and then to PS FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 17 of 39 Punjabi Bagh. He noticed one sikh gentleman and also saw some gold ornaments, money and other goods lying at the PS. He found that 78 more boys were present at the PS and accused Kamal had been badly beaten up by the police and police was saying that they would implicate him in a dacoity case.
6. Arguments have been heard from the learned APP Sh. Sh. Anil Kumar and from Sh. Aseem Bhardwaj, advocate Amicus Curiae for the accused persons. The learned APP has argued that PW2 Aziz Hussain has identified the accused persons while other prosecution witnesses have proved the recovery of stolen property from the possession of the accused. It is further submitted that FSL result proves that the theft was committed after administration of sedative drug to PW2. It is also submitted that prosecution has proved the recovery of 128 strips of Lorazepam Ativan tablets from the possession of accused Mohd. Aziz which is a sedative drug and the finger prints lifted from the spot have matched with the finger prints of accused Akhilesh @ Kamlesh. It is thus argued that prosecution has been able to prove that all the accused had entered into a criminal conspiracy to commit the theft FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 18 of 39 of jewellery and valuables from the house of Manjinder Singh and in pursuance of the said conspiracy, Aziz Hussain was administered a sedative drug mixed with tea which facilitated the commission of theft by accused.
7. The learned Amicus Curiae has however argued that accused persons were not known to PW2 Aziz Hussain prior to the incident and no TIP has been conducted and therefore the identification of the accused for the first time in court by PW2 is no identification in the eyes of law. It is further submitted that there is no independent public witness to the recovery of stolen articles and therefore recovery is also doubtful. With regard to the evidence of finger prints expert, it is argued that the specimen signatures of accused Akhilesh were not obtained with the permission of the court and therefore the report of finger prints expert has no value. According to the learned counsel, prosecution has failed to prove its case against the accused beyond doubt and therefore they are liable to be acquitted.
8. Prosecution is relying on the following circumstances FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 19 of 39 to prove its case:
i) identification of finger prints of accused Akhilesh Kumar with the specimen finger prints lifted from the spot;
ii) accused visited the house of Manjinder Singh on the day of incident with previous domestic servant Rakesh and met the other domestic servant Ram;
Iii) tea served by Ram to Aziz Hussain due to which he became unconscious;
iv) theft of jewellery and other articles from the house of Manjinder Singh during the period when Aziz Hussain remained unconscious;
v) recovery of stolen jewellery and other articles from the possession of the accused persons;
vi) recovery of 128 strips of Lorazepam ATIVAN tablets;
vii) FSL result proving the presence of Lorazepam in the gastric lavage of Aziz Hussain
9. The argument of learned Amicus Curiae is that none of the circumstances is proved bound doubt which can justify the FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 20 of 39 conviction of the accused. PW14 HC Randhir, Proficient, Crime Team, West District deposed that he had lifted six chance prints from the spot. Inspector Ishwar Singh (PW18) deposed that during investigation, he obtained specimen finger prints of accused and sent the same to Finger Prints Bureau, Malviya Nagar. Sh. N.K. Sharma (PW17), Finger Prints Expert has proved that chance print Q5 was identical with the right little finger impression Mark S1 on the finger print slips of Akhilesh. In the case of Mohd. Aman & Anr. Vs. State of Rajasthan 1997 Supreme Court Cases (Crl.) 777, it has been held that police is competent to take specimen finger prints of the accused. However to dispel any suspicion or to eliminate the possibility of fabrication of evidence, they should be taken before or under the order of a Magistrate. In the present case, in his cross examination, IO states that he had not obtained the requisite permission from the court before taking finger prints of the accused. The specimen finger prints of accused having not been taken before or under the orders of the Magistrate, it shall not be proper to rely on the report of the expert in such circumstances. The evidence of finger print expert is therefore excluded from FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 21 of 39 consideration.
10. Inspector Ishwar Singh deposed that accused Bhim Bahadur was apprehended from Azad Pur bus stand and on his personal search, a gold locket having the word "Nike" written on the same was recovered from his possession which was identified by complainant Manjinder Singh. The learned counsel has argued that till that stage, Investigating Officer had no knowledge that Bhim Bahadur was involved in the present case and therefore there was no occasion for him to join Manjinder Singh for apprehending accused Bhim Bahadur. It may be noted that IO had apprehended the accused Bhim Bahadur on the basis of information given by a secret informer and it explains why Manjinder Singh was also joined for apprehending Bhim Bahadur. Inspector Ishwar Singh has categorically deposed that Bhim Bahadur led the police team at his house in the area of Village Azad Pur and from the tand of his house, he produced a polythene bag which contained a gold bangle in twisted shape, one gold tikka, one gold chain and one pair of ear tops which were identified by Manjinder Singh. The gold locket was seized vide memo Exbt. FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 22 of 39 PW9/B and the jewellery articles recovered from the house of accused Bhim Bahadur were seized vide memo Exbt. PW6/C. Both the memos bear the signatures of Manjinder Singh and Constable Ramesh. It has come in evidence that on 04.02.2005, other four accused were arrested in court on being produced from jail and they gave disclosure statements. Thereafter, accused Akhilesh and Aziz who were residing together in a rented room, took the police team along with Manjinder Singh to their rented room and from there accused Akhilesh got recovered jewellery articles which were seized vide memo Exbt. PW4/C and accused Mohd. Aziz got recovered the jewellery articles from a suitcase lying under the folding bed in his room which were seized vide memo Exbt. PW9/G. Besides the jewellery articles, accused Mohd. Aziz had also got recovered 128 strips of tablets Lorazepam Ativam 1 mg from a handbag lying under the bed. Constable Suraj Bhan is the witness to the seizure emmo Exbt. PW4/C and Constable Lakhmi is witness to the seizure memo Exbt. PW9/G. Thereafter, accused Raju got recovered the stolen jewellery from the store over the kitchen of his house which was seized vide memo Exbt. PW9/F. Reshma and Constable Rakesh FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 23 of 39 are the witnesses to the memo Exbt. PW9/F. It is also in evidence that on 05.02.2005, accused Kamal got recovered the stolen jewellery articles from a polythene from his jhuggi which was seized vide memo Exbt. PW9/E and Constable Ramesh is witness to the said memo. Manjinder Singh is the witness to all the recovery memos and according to IO, he had identified the stolen jewellery articles at the spot itself at the time of recovery.
11. PW9 Manjinder Singh has supported the prosecution version that his stolen jewellery articles were recovered from accused persons in his presence and he was the member of the raiding team at the time of recovery of jewellery articles. The learned defence counsel has argued that IO has not collected any proof of residence of the accused and had not joined any of the neighbours as witnesses of recovery. It is submitted that Manjinder Singh is an interested witness and there is no corroboration of the testimonies of police witnesses with regard to the recovery of stolen articles from any other independent witness.
12. In the case of Kartik Malhar Vs. State of Bihar, 1996 FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 24 of 39 (1) RCR (Criminal) 308, the Hon'ble Court held that the term "interested" postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some animus or for some other reason. No doubt, Manjinder Singh is a victim of crime as theft had taken place at his house. His interest could be in the recovery of his stolen jewellery and for punishment of the culprits but it cannot be said that he had any interest in false implication of the accused. There is no evidence to prove that he had some direct interest in having the accused convicted for some animus or for some other reason. Manjinder Singh had no axe to grind against the accused persons and therefore he cannot be regarded as an interested witness. He has corroborated the testimonies of police witnesses with regard to the recovery made at the instance of the accused persons. Merely because IO did not collect the proof of residence of accused, would not in any way dent the prosecution case once it is duly proved that the recovery was affected at the instance of the accused persons. It is also correct that no neighbourer of the accused has been examined but multiplicity of witnesses on the same point would not have served any purpose. In the case of FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 25 of 39 Kartik Malhar (supra), the Hon'ble Supreme Court held that conviction can be based on the testimony of a single eye witness provided his credibility is not shaken and court finds him a truthful witness. It was further held that Section 134 has categorically laid down that no particular number of witnesses are required to prove a fact and the evidence has to be weighed and not counted. In the present case, the testimony of Manjinder Singh and the recovery witnesses of police are straight forward and cogent. Nothing material has been pointed out in their cross examination which can help the accused persons. Hence, merely because the neighbourers have not been cited or examined by the prosecution is not fatal to the prosecution case.
13. The learned counsel of accused has argued that empty jewellery boxes and locks were not seized from the spot. Bills of recovered stolen jewellery articles to prove the ownership of Manjinder Singh are not produced and the polythene bags from which the jewellery articles were recovered were not produced in court and therefore prosecution story appears to be doubtful. FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 26 of 39
14. It is correct that no bill or receipt has been produced to prove that the recovered jewellery articles belonged to Manjinder Singh but it is in evidence that Manjinder Singh had handed over the list of his stolen property even before its recovery from the accused. It is not the case of the accused that the recovered jewellery articles do no tally with the list of stolen articles. Manjinder Singh has identified his stolen articles. Accused are not claiming that recovered jewellery belonged to them. They have failed to account for the possession of the stolen jewellery. Under these circumstances, non production of the bills or receipts of the jewellery articles has no consequence. Similarly, merely because the empty jewellery boxes and broken locks were not seized from the spot, would not weaken the prosecution case which has otherwise been proved by the witnesses. Inspector Ishwar Singh, IO stated in cross examination that he had seized the polythene from which the articles recovered at the instance of accused Bhim Bahadur was also seized. He had also seized the newspaper in which the articles recovered at the instance of accused Raju @ Chhotu were seized. Admittedly, the polythene and the newspaper were not produced in court. It may be noted that the case FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 27 of 39 property was released on superdari and was produced in court for identification by the superdar. The polythene bag and the newspaper are not the stolen property of the case and therefore merely because they were not produced by the superdar would not have any effect on the prosecution case.
15. The learned counsel of accused has argued that there are contradictions in the prosecution case, in as much as, as per DD No. 32 B Exbt. PW18/A, the place of occurrence is 72/40, Punjabi Bagh while the actual place of occurrence is 40/72. PW1 Constable Devender in his deposition gave the address as 40/77, West Punjabi Bagh. As per site plan Exbt. PW18/C, the place of occurrence is 40/72. According to PW9 Manjinder Singh, the theft took place at his house No. 40/72, West Punjabi Bagh. As per site plan, there is a road near the house of Manjinder Singh where the theft took place and the number of the road is 72, West Punjabi Bagh and the number of the Kothi is 40. In DD No. 32B, road number is written prior to the Kothi number which hardly makes any difference. Constable Devender gave incorrect address of the place of his visit but the same could be a clerical or FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 28 of 39 typographic mistake as there is no dispute that the theft had taken place at the house of Manjinder Singh at 40/72, West Punjabi Bagh and therefore not much importance can be given to the alleged contradiction pointed out by the learned counsel of accused.
16. In my opinion, prosecution has not only able to prove the recovery of stolen jewellery articles from the possession of the accused persons but have also proved the recovery of 128 strips of Lorazepam Ativan tablets at the instance of accused Mohd. Aziz. The theft had taken place on 27.01.2005 and the recovery was affected from accused Bhim Bahadur on 03.02.2005, from accused Akhilesh, Aziz and Raju on 04.02.2005 and from accused Kamal on 05.02.2005. Illustration (a) to Section 114 Evidence Act read as under: The Court may presume that a man who is in the possession of stolen goods soon after the theft as either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.
Illustration (a) indicates two stages for a presumption. FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 29 of 39 First is that the possessor could be the thief himself and the second is that the possessor would have been only a receiver of the stolen property with the requisite knowledge. Accordingly, the former is of aggravated degree and the latter is of a lesser degree. If possession of stolen article with the accused alone is established in evidence, it is a difficult task for the court to choose between two stages of presumption envisaged in the illustration. The nature of possession of the articles, the place of mode of concealment, the manner in which they were dealt with by the accused, the length of the intervening period, the number of stolen articles possessed by them are all factors which would assist the court in drawing a presumption that the possessor was the thief himself. Similarly, if the possession is associated with any other indication or incriminating circumstance showing complicity of accused, there would certainly be justification for drawing the more aggravated presumption.
17. In the present case, the stolen jewellery articles were recovered soon after their theft. There is not much time gap between the theft and the recovery. This coupled with the mode FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 30 of 39 of concealment leads to irresistible conclusion that accused themselves had committed the theft of those articles and were the thieves themselves.
18. Aziz Hussain (PW2) has deposed that on 27.01.2005 at about 7.00 am i.e. couple of hours before he was administered tea laced with sedative drug by Ram, all the five accused had come at the house of Manjinder Singh along with previous domestic servant Rakesh and they were made to sit in the outer drawing room by Ram. He identified all the accused persons. This is a very relevant circumstance because if proved, it may establish the conspiracy of the accused persons with Ram to commit theft. In cross examination, Aziz Hussain admits that accused persons were not known to him prior to the day of incident. No Test Identification Parade of accused was conducted. It is true that TIP conducted during investigation is of vital importance because it furnishes to the investigating agency an assurance that investigating is proceeding on the right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. However, the identification FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 31 of 39 during police investigation is not a substantive evidence and it can be used only for corroborating or contradicting the evidence of the witness concerned as given in court. The effect of not holding a prior test identification parade has been examined in considerable detail by threeJudge Bench in Malkhan Singh and Other Vs. State of Madhya Pradesh, 2003 (5) JT (SC) 323 wherein, it has been observed as under: "It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identify of the accused who are strangers to them, in the FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 32 of 39 form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should a matter for the Courts of fact."
19. In a recent judgment, in the case of Mahabir Vs. State of Delhi, 2008 Crl. L.J 3036, the Hon'ble Supreme Court held that test identification parade belongs to the stage of investigation and there is no provision in Cr. PC which obliges investigating agency to hold or confers a right upon accused to claim test identification parade. It has been held that test identification parades are essentially governed by Section 162 of the Code and the failure to hold the same would not make inadmissible evidence of identification in court. Similarly, in the case of Rafikul Alam and Ors Vs. State of West Bengal 2008 Crl. LJ 2005, it was FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 33 of 39 observed as under: "(B) Evidence Act ( 1 of 1872), S. 9 Identification parade - Substantive evidence is identification in Courts and not during investigation.
(C ) Penal Code (45 of 1860), S. 395 -
Dacoity - Witnesses identifying accused before Court - No enmity between accused and witnesses - Denial of suggestions by witnesses that they identified accused before Court at instance of police Cannot be said that witnesses would, in no case, be able to identify dacoits whom they had seen in course of dacoity committed during night - Trial Court accepting evidence of identification in Court as satisfactory
- No interference by High Court."
20. In the present case, PW2 Aziz Hussain has identified the accused before the court. There was no previous enmity between him and the accused persons as admittedly he did not know the accused prior to the date of incident. He denied the suggestion that accused persons had not come to the house. As per the testimony of PW2, accused had come at the house of Manjinder Singh in the morning and therefore he had sufficient time and opportunity to have a good look at them. Aziz Hussain FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 34 of 39 saw the accused persons on 27.01.2005. There was no delay in the recording of his testimony in court. He identified them again in court on 23.08.2005. Therefore, it cannot be said that Aziz Hussain would in no case be able to identify the accused in court. Moreover, the identity of accused is also proved from the fact that the stolen goods have been recovered from their possession and taking aid of Section 114 of the Evidence Act, it can safely be presumed that accused had committed theft at the house of Manjinder Singh.
21. The testimony of Aziz Hussain that he became unconscious after taking the tea offered to him by the other servant Ram, finds corroboration from the testimony of his mother Seema who has also deposed that when she reached the house of Manjinder Singh, she found her son lying unconscious. Gurcharan Singh Batra (PW8) has also stated that on reaching house No. 40/72, he found Raju lying in an unconscious condition. Inspector Ishwar Singh (PW18) deposed that when he reached at the house of Manjinder Singh, he found his driver Raju lying in a semi conscious condition and he was rushed to Maharaja FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 35 of 39 Agrasain Hospital. Dr. Alok Kumar, who had examined Mohd. Aziz and Raju stated that he had handed over the gastric lavage to the IO and that no smell of alcohol was found. Therefore, the possibility of self intoxication by consuming alcohol is also not there. The FSL report Exbt. PX proves the presence of Lorazepam in the gastric lavage. The witnesses have proved the recovery of Lorazepam Ativan 1 mg tablets from accused Aziz @ Kabir.
23. In the case of conspiracy, the direct evidence of conspiracy is almost an impossibility as conspiracy is a clandestine activity and the persons generally do not form illegal covenants openly. It has to be inferred from the established facts of the case. Prosecution has been able to prove the following circumstances:
i) Accused persons came with previous domestic servant Rakesh and met the other domestic servant Ram at the house of Manjinder Singh only couple of hours before Aziz Hussain was intoxicated by giving him sedative drug mixed with tea.
ii) Cash and jewellery was stolen from the house of FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 36 of 39 Manjinder Singh after Aziz Hussain became unconscious. Iii) The stolen property was shared by the accused persons and the same was recovered from the accused without much delay.
iv) The FSL result proves the presence of Lorazepam in the gastric lavage of Aziz Hussain.
v) Recovery of huge quantity of ATIVAN 1 mg Lorazepam tablets from accused Mohd. Aziz.
These circumstances cumulatively considered and weighed unerringly point to the collaboration of accused to various acts done in furtherance of the conspiracy. I therefore have no hesitation to hold that prosecution has been able to prove its case against the accused beyond doubt. I therefore hold them guilty. They are convicted under Section 120B, Section 328 read with Section 120B and Section 380 read with Section 120B IPC.
(RAVINDER DUDEJA) ASJ/NW03/ROHINI/DELHI ANNOUNCED IN OPEN COURT ON 27072011.
FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 37 of 39 State Vs. Mohd. Aziz & Ors.
FIR No. 87/05 U/s. 328/381/120B/411/34 IPC.
PS Punjabi Bagh.
29.07.2011.
Present: Additional PP for the State.
All accused in J/C with Sh. Aseem Bhardwaj, Advocate, Amicus Curiae.
Arguments heard on the point of quantum of sentence. Vide separate order, all the convicts are sentenced with seven years RI each under Section 120B IPC with fine of Rs. 5000/ each in default of payment of which, they shall undergo six months SI each, they are sentenced with seven years RI each under Section 328 read with Section 120B IPC with fine of Rs. 5000/ each in default of payment of which, they shall undergo six months SI each and they are sentenced with five years RI under Section 380 read with Section 120B IPC with fine of Rs. 5000/ each in default of payment of which, to undergo six months SI each. All the sentences shall run concurrently and the convicts shall get benefit of Section 428 Cr. PC for the period during which, they remained FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 38 of 39 in custody during investigation/trial. Copy of the judgment and order on sentence be given to convicts free of cost. The fee of Sh. Aseem Bhardwaj, advocate is fixed at Rs. 11000/ for rendering valuable assistance. File be consigned to Record Room.
(RAVINDER DUDEJA) ASJ/NW/ROHINI/DELHI.
FIR No. 87/05; State Vs. Mohd. Aziz Etc. Page 39 of 39