Delhi District Court
State vs . Mohan Jaiswal on 22 October, 2019
IN THE COURT OF MS TANYA BAMNIYAL METROPOLITAN
MAGISTRATE02 (SOUTH DISTRICT), SAKET COURTS COMPLEX,
NEW DELHI
STATE Vs. Mohan Jaiswal
FIR No. 51/07
U/s : 394/397/34 IPC
P.S. : Malviya Nagar
Date of Institution : 18.04.2007
Date on which case reserved for Judgment : 03.09.2019
Date of judgment : 22.10.2019
JUDGMENT
1.FIR No. of the case : 51/07
2. Date of the Commission : 27.02.2006 and 13.01.2007
of the offence
3.Name of the accused persons : 1. Mohan Jaiswal,
: S/o Sh. Jageshwar Jaiswal,
: R/o H.No. 82/10, Gagan
: Vihar, Badarpur, New Delhi.
: 2. Ashok Paswan
: S/o Sh. Nathni Paswan,
: R/o South City1, Silokara
: Village, Gurgaon.
: 3. Rohit Sahani
: S/o Sh. Vishnu Dev Sahani,
: R/o South City1, Silokara
: Village, Gurgaon.
4.Name of the complainant : Sh. Gurdeep Raj Chhatwal,
: S/o Sh. P.C. Chhatwal,
: R/o B1/3, Malviya Nagar,
: New Delhi
FIR No. 51/07 State Vs. Mohan Jaiswal 1/14
5.Offence complained of : U/s 411 IPC & Sections
: 394/452/34 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Accused Rohit Sahani convicted for the
: offences U/s 452/394/34 IPC and accused
: Mohan Jaiswal convicted for offence U/s
: 411 IPC. Accused Ashok Paswan is
: acquitted for offence U/s 452/394/34 IPC.
BRIEF FACTS:
1. In brief the case of the prosecution is that on 13.01.2007 at about 12:00 noon at B1/3, Malviya Nagar, accused persons Ashok Paswan and Rohit Sahani in furtherance of their common intention committed house trespass by entering into the aforesaid house used for dwelling having made preparation for causing hurt to complainant Sh. Gurdeep Raj Chhatwal and they also committed robbery of the jewellery belonging to complainant and while committing the robbery, they voluntarily caused hurt to the complainant by the butt of the pistol and thereby committed offences punishable u/s 452/394/34 IPC. It is the further case of the prosecution that on 27.02.2006 at H.No. 212, D Block, Gali No.10, Gagan Vihar, Badarpur, accused Mohan Jaiswal got recovered two gold bangles and two gold rings, one containing diamond 'nag' from the almirah of his bedroom which he dishonestly received knowing or having reason to believe that the same was stolen and thereby he committed offence u/s 411 IPC.
2. On the basis of the said facts and on the complaint of the complainant, an FIR bearing number 51/07 under section 411 IPC and Sections 452/397/34 IPC was lodged at Police Station Malviya Nagar.
3. After investigation, chargesheet under section 173 Cr.P.C was filed on FIR No. 51/07 State Vs. Mohan Jaiswal 2/14 18.04.2007. Vide order dated 12.03.2008 Ld. Sessions Court observing that Section 397 IPC was not made out, sent back the case to the MM court for proceeding further as per law.
4. On the basis of the allegations in the chargesheet and documents annexed thereto, charge for the offence punishable under section 411 IPC was framed against the accused Mohan Jaiswal and a charge for the offences punishable U/s 452/394/34 was framed against the accused persons Ashok Paswan and Rohit Sahani on 29.04.2008 to which the accused persons pleaded not guilty and claimed trial.
THE TRIAL PROCEEDINGS :
5. In order to substantiate its case, the prosecution has examined fifteen witnesses.
(a). PW1 was the complainant/injured Sh. Gurdeep Raj Chhatwal who deposed about the alleged incident. He exhibited his statement as Ex.PW1/A, the case property i.e. bangles as Ex. P1 and Ex.P2, rings as Ex.P3 and Ex.P4 and currency as Ex.P5 (colly).
(b). PW2 was HC Raj Kumar. He exhibited copy of FIR as Ex.PW2/A and his endorsement on rukka as Ex.PW2/B.
(c). PW3 was ASI Bir Singh who had received the PCR call and got conducted the medical examination of Gurdeep Raj Chhatwal.
(d). PW4 was Ct. Rajesh who had got the FIR registered.
(e). PW5 was Retired SI Rohtash. He was duly crossexamined by ld. defence counsel for all accused persons.
(f). PW6 was ASI Devender Singh. He marked the copy of the seizure memo of 'Kukri' as Mark Y, copy of seizure memo of country made pistol as Mark X and copy of seizure memo of rope as Mark Z. FIR No. 51/07 State Vs. Mohan Jaiswal 3/14
(g). PW7 was Inspector Aishveer Singh who was the IO of the case FIR No. 212/07, PS Malviya Nagar. He was crossexamined by ld. defence counsel.
(h). PW8 was HC Jitender Kumar. He exhibited the disclosure statements of accused persons as Ex.PW8/A, Ex.PW8/B and Ex.PW8/C. He also exhibited the seizure memo of case properties as Ex. PW8/D, seizure memo of Register and a small copy as Ex.PW8/E, seizure memo of cash of Rs. 2000/, RC, some documents and two mobile phones as Ex.PW8/F and arrest memos of accused persons as Ex.PW8/G, Ex.PW8/H, Ex.PW8/I and Ex.PW8/J. He exhibited Register and small copy as Ex. X1 and silver tagri, one golden necklace and one silver clutcher as Ex. X2.
(i). PW9 was HC Dal Chand. He was duly crossexamined by ld. defence counsel.
(j). PW10 was Dr. Gaurav Joshi who appeared on behalf of Dr. Sarfaraz Alam. He opined about the injury as being simple and type of weapon used as blunt as per MLC No. 4051/07 dated 13.01.2007.
(k). PW11 was the MRT Sh. Rajbir Singh. He identified the signatures of Dr. Sarfaraz Alam who prepared the MLC as he had seen him signing and writing during the course of his duty and exhibited the MLC as Ex. PW11/A.
(l). PW12 was the Judicial Assistant (Record Room Sessions, Saket Courts) Ms. Swarn Lata Ekka who brought the original record of case file bearing no. 212/07, PS Malviya Nagar. She exhibited the seizure memos as Ex. PW12/A (OSR) to Ex.PW12/D (OSR) and personal search memos as Ex. PW12/E (OSR) to Ex.PW12/I (OSR).
(m). PW13 was the IO/SI Om Prakash. He exhibited the site plan as Ex.PW13/A, disclosure statement of accused Rohit as Ex.PW13/B and recovery site plans as Ex.PW13/C and Ex.PW13/D. He also exhibited TIP proceedings of case FIR No. 51/07 State Vs. Mohan Jaiswal 4/14 properties as Ex.PW13/E and Ex.PW13/F.
(n). PW14 was the Ld. ASJ03 Sh. Sunil Chaudhary. He exhibited the TIP proceedings of the case property as Ex.PW14/A.
(o). PW15 was ASI Munesh Kumar. He exhibited seizure memo of two country made pistols as Ex.PW15/A, seizure memo of two buttondar knives as Ex.PW15/B, disclosure statements of accused persons namely Rohit Sahani, Prakash and Ashok as Ex.PW15/C, Ex.PW15/D and Ex.PW15/E.
6. The accused admitted U/s 294 Cr.P.C. r/w Section 313 Cr.P.C. the TIP Report (refusal) dated 09.03.2007 as Ex.X1 vide the order dated 28.06.2017.
7. Prosecution evidence was closed on 01.09.2017. After conclusion of prosecution evidence, the statement of accused (SA) under section 313 r/w section 281 Cr.P.C was recorded on 08.09.2017. Accused persons stated that they wished to lead DE. However they did not lead any DE. An application U/s 311 Cr.PC was moved by Ld. APP for the State for calling PW ASI Munesh and ld. defence counsel also moved an application U/s 311 Cr.PC for recalling PW1/complainant for his crossexamination by the accused Ashok Paswan both of which were allowed vide order dated 09.10.2017. PW ASI Munesh Kumar was examined as PW 15. The complainant was not traceable at that stage despite being sought to be served through all modes. Thereafter supplementary SA was recorded on 27.11.2017. Thereafter final arguments were advanced by Ld APP for the State and the ld counsel for the accused persons and finally on 14.12.2017 judgment was pronounced by my Ld Predecessor wherein accused Rohit Sahani was convicted for the offence U/s 452/394/34 IPC and accused persons Ashok Paswan and Mohan Jaiswal were convicted for the offence U/s 411/34 IPC. Accused Ashok Paswan was acquitted for the offences U/s 452/394/34 IPC. Thereafter, appeal was preferred by accused persons Mohan Jaiswal and Ashok Paswan and CA 24/2018 and 29/2018 had been FIR No. 51/07 State Vs. Mohan Jaiswal 5/14 filed by Rohit Sahani and both the appeals were decided by a common judgment vide judgment dated 11.02.2019 by the Ld. Sessions Court presided over by Sh. Rajesh Kumar Singh, Special Judge (NDPS), South District, Saket wherein after consideration it was observed as under: "18. Conviction of the accused Ashok Paswan U/s 411/34 IPC was not correct. However, considering the discussion above in his respect and the fact that Learned Trial Court also believed the recoveries at his instance, there is need for reconsideration of the case qua him. U/s 386(b)(i) Cr.P.C, this court can setaside the conviction and remand the matter to Learned Trial Court for retrial. The case of Ashok Paswan is interlinked to the case of Rohit Sahani and Mohan Jaiswal. Therefore, it would not appropriate to treat the appeal of Rohit Sahani and Mohan Jaiswal separately. The matter qua them also has to be remanded to Learned Trial Court without examining the merit of the decision against them. It is made clear that Learned Trial Court will rehear all appellants afresh and will be free to take its own view. Accordingly, the impugned judgment and the order on sentence against all three appellants is setaside and the matter is remanded to Learned Trial Court for hearing the final arguments again and to decide the matter afresh. If Learned Trial Court feels that any witness needs to be recalled or further statement of the accused needs to be recorded U/s 313 Cr.PC, it can do so. Learned Trial Court may also pass any other order as per law necessary for just decision of the case."
8. Thereafter this court vide order dated 03.09.2019 observed as under : "2. In the considered opinion of this Court, no purpose would be served in recalling the prosecution witnesses as the witnesses have already been examined at length and one witness namely Ms. Madhu Chatwal was untraceable despite issuing the summons through DCP. Further, vide order dated 19.09.2013 it was declared by the Court that witness Madhu Chatwal is untraceable. It is pertinent to note that the case is more than 10 years old and hence considering the duration it is not possible to trace witness namely Madhu Chatwal. Consequently, there is no requirement for recording of the FIR No. 51/07 State Vs. Mohan Jaiswal 6/14 statement of the accused persons U/s 313 Cr.PC again, as nothing incriminating has come on record."
FINAL ARGUMENTS:
9. Final arguments were advanced by Ld. APP for the State and Ld. counsel for the accused persons. I have heard the arguments and perused the record.
REASONS FOR DECISION:
10. The testimony of PW1/complainant Sh. Gurdeep Raj Chhatwal makes it crystal clear that on the date of the incident i.e. 13.01.2007 there were three assailants out of whom two came inside his house and one remained outside.PW1/complainant unambiguously identified the accused Rohit as one of the assailants and testified that he remained outside the house while the others went inside. PW1/complainant also proved his complaint to the police as Ex.PW1/A and supported the prosecution's case regarding the commission of the offences.
11. PW1/complainant testified that two of the assailants came inside on the pretext of checking electricity meter and bills and he showed them two bills but they asked for old bills and one of them who was of fair complexion and hailed from NorthEast took out his pistol and hit the forehead of PW1 with the butt. PW1/complainant deposed that he called his wife who was getting the fan cleaned from the servant and the second person threatened her with a pistol when she came asking her to hand over the cash available in the house. PW1/complainant further narrated in his chief examination that his wife said that they did not have much cash and offered the amount kept in her purse and when the persons tried to snatch her jewellery she herself removed the jewellery and gave it to the accused. PW1 deposed that his servant ran from the front door and accused Rohit followed his servant. The complainant/PW1 thus while specifically identifying the accused Rohit as one of the assailants assigned the specific role to him that he waited outside the FIR No. 51/07 State Vs. Mohan Jaiswal 7/14 house and ran after the servant when the servant fled from the front door which shows that the accused Rohit was keeping watch while the other assailants, in furtherance of the common intention of them all, were committing the robbery.
12. The MLC of the complainant/PW1 proved as Ex. PW11/A by the MRT (who identified the signature of the doctor having seen him writing and signing during the course of his duty), corroborates the prosecution version of simple hurt sustained by the complainant. The case property i.e. the gold bangles and rings were exhibited as Ex.P1 to P4. The photocopies of the currency notes were exhibited as Ex.P5(colly). Though the exhibition of the photocopies of the notes was objected to, however no question or suggestion regarding the authenticity thereof was ever raised and in any case, even if not considered it does not diminish the veracity of the prosecution's case.
13. The fact that the wife of the complainant and the servant who were present are not cited as witnesses does not in any manner lessen the credibility of the complainant who has clearly deposed about the involvement of the accused Rohit, the well settled law being that evidence is to be weighed and not counted. No motive for false implication of the accused Rohit by the complainant has been brought out by the accused Rohit Sahani. Nothing favourable to the defence of the accused Rohit could be elicited through his crossexamination. The fact that the accused Rohit Sahani refused to participate in Test Identification Parade proceedings vide Ex. X1 report also requires an adverse inference to be drawn against him.
14. As per Section 34 IPC, the accused Rohit Sahani is equally liable for the offences as the assailants who entered into the house on the false pretext of checking electricity bills, remained there without the consent of the owner having made preparation for causing hurt to the complainant and committed robbery of the jewellery while voluntarily causing hurt to the complainant and therefore the guilt of FIR No. 51/07 State Vs. Mohan Jaiswal 8/14 the accused Rohit Sahani for the offences u/s 452/34 IPC and Section 394/34 IPC stands proved beyond doubt.
15. In so far as the accused persons Ashok Paswan and Mohan Jaiswal are concerned however, the complainant/ PW1 was not sure during trial regarding their presence at the spot, deposing that the person with the beard, referring to Ashok Paswan, was probably one of the assailants but he was not certain as there was no beard at the time and the third person might have been Mohan Jaiswal. In cross examination by Ld. counsel for accused Mohan Jaiswal, PW1 admitted that he could not identify the accused Mohan Jaiswal. Although PW1/complainant was not cross examined by the accused Ashok Paswan the crossexamination by Ashok Paswan being deferred on 13.05.2008 and thereafter when the complainant was sought to be summoned for this purpose in the year 2017 he was not traceable, however the complainant in his chief examination itself was not certain about the presence of accused Ashok Paswan at the spot therefore the offences u/s 452/394/34 IPC of house trespass after preparation for hurt and causing hurt while committing robbery are not proved against him.
16. As such, against the accused Mohan Jaiswal the charge framed is for the offence punishable u/s 411 IPC of dishonestly receiving or retaining stolen property knowing or having reasons to believe the same to be stolen.
17. In order to establish the offence U/s 411 IPC against the accused Mohan Jaiswal, the prosecution examined a number of police witnesses; the police official Inspector Aishvir Singh who apprehended and arrested the accused persons Rohit, Ashok and some other persons in case FIR No. 212/07, PS Malviya Nagar wherein the accused persons disclosed about their involvement in the present case, was examined as PW7.
18. PW8 HC Jitender Kumar testified about the formal arrest and FIR No. 51/07 State Vs. Mohan Jaiswal 9/14 interrogation of the accused persons Rohit and Ashok as well as another person who was later found to be a child in conflict with law (CCL) and the disclosure statements having been recorded. He deposed regarding the disclosure of the accused persons that they sold the stolen property to accused Mohan Jaiswal. He further testified that the police officials went to the house of accused Mohan Jaiswal from where they recovered two golden bangles and two golden rings in which one golden ring bore a diamond 'nug'. The fact that this witness did not recollect whether any public persons were joined to the investigation (volunteering that it was due to lapse of time), it does not make the testimony of this witness doubtful. PW9 HC Dal Chand also deposed about the recovery proceedings corroborating PW8 in all the material aspects thereof.
19. In the Test Identification Parade Proceedings of the recovered jewellery articles in question the witness i.e. the wife of the complainant had correctly identified the jewellery articles vide the TIP proceedings of case property Ex. PW14/A. Thus all the ingredients to constitute an offence U/s 411 IPC qua accused Mohan Jaiswal are satisfied and proved beyond reasonable doubt.
20. Similarly, the IO/PW13 SI Om Prakash deposed about the investigation proceedings including the recovery of the case property and proved the site plan of the place of recovery as Ex. PW13/C. The police witnesses also deposed about recovery of some silver articles from the possession of accused Rohit and a register, small copy and Rs. 4000/ from the possession of accused Ashok Paswan and the site plan of the place of recovery was proved by PW13 as Ex. PW13/D. PW13 in his crossexamination testified that he remembered about Ct. Dalchand and Ct. Jitender having accompanied him during recovery proceedings though in chief examination he testified that Ct. Dal Chand, Ct. Jitender and other staff were accompanying him whose names he could not remember. This in itself is not a major FIR No. 51/07 State Vs. Mohan Jaiswal 10/14 contradiction, the witness was clear about the presence of Ct. Jitender and Ct. Dalchand and his not being able to remember about the presence of other police witnesses does not make his testimony less reliable.
21. Ld. defence counsel stressed upon the fact that public witnesses were not joined in the recovery proceedings. As per the IO/PW13, public witnesses did not join the investigation proceedings. It is settled law that testimony of police officials is at par with that the other witnesses unless some enmity or motive against the police officials is alleged and proved. (See in this regard: Ramjee Rai and Ors. Vs. State of Bihar 2006 (13) SCC 229).
22. The police witnesses have corroborated each other on the material aspects of discovery of the fact of stolen property being sold to the accused Mohan Jaiswal and recovery of the robbed property at the instance of the accused persons Rohit and Ashok from Mohan and also cash amount and register from Ashok. No motive for false implication or falsely planting the recovered articles upon the accused persons by the police officials has been shown by the accused persons who have not sought to lead defence evidence.
23. Even in their statements recorded u/s 313 r/w 281 Cr.PC, they did not put forth any real defence, merely denying their involvement or stating that they were apprehended from their respective houses. Accused Mohan Jaiswal stated that there was one more person with the police officials who may have committed theft and he did not know but the person used to come to his provision store for buying ration. Apart from being vague it also appears to be a sham defence as no such question or suggestion was put to any of the prosecution witnesses during the trial.
24. Ld. defence counsel argued that in the case bearing FIR No. 212/07, PS Malviya Nagar, the accused persons Rohit and Ashok had been acquitted as was proved through the testimony of PW12 Ms. Swaran Lata Ekka, Judicial Assistant FIR No. 51/07 State Vs. Mohan Jaiswal 11/14 who brought the record of the aforesaid judicial file. Ld. APP for the State correctly argued that the acquittal of the accused persons Rohit and Ashok in the other case could not lead to a presumption that they had not committed the offences in the present case. Each case turns on its own facts and evidence adduced; the acquittal of the accused persons in the case FIR No 212/07, PS Malviya Nagar does not absolve them from their liability in the present case where through the evidence of the public witness PW1/complainant the factum of robbery and house trespass after preparation to cause hurt by the assailants which included accused Rohit Sahani stands proved as does the recovery of the robbed jewellery articles from the accused Mohan Jaiswal which he received or retained knowing the same to be looted articles.
25. It is pertinent to note that charge qua accused Ashok Paswan was framed only U/s 452/394/34 IPC and no charge was framed qua the accused U/s 411 IPC. Section 222 Cr PC applies to cases in which the charge is of an offence which consists of several particulars, a combination of some only of which constitutes a complete minor offence. The graver charge in such cases gives to the accused notice of all the circumstances going to constitute the minor one of which he may be convicted. The latter is arrived at by mere subtraction from the former. But when this is not the case, where the circumstances, embodied in the major charge do not necessarily and according to the definition of the offence, imputed by that charge, constitute the minor offence also, the principle no longer applies, because notice of the former does not necessarily involve notice of all that constitutes the latter. This section is not intended to apply to a colateral offence. The major and the minor offence must be cognate offences. Further in case of Anil Kumar Vs State of Rajasthan 1992 Cr LJ 3637(3640) (Raj) it was held as under: The term, "minor offence" has to be interpreted in its ordinary sense and not technical sense. The test is not the gravity of punishment. When a person is charged with an FIR No. 51/07 State Vs. Mohan Jaiswal 12/14 offence,consisting of several particulars and if all the particulars are proved then it will constitute the minor offence, while if some of those particulars are proved and their combination constitutes a minor offence the accused can be convicted of the minor offence though he was not charged with it. Thus, a minor offence within the meaning of S.222, Cr.PC, would not be something independent of the main offence or an offence merely involving lesser punishments. The minor offence should be composed of some of the ingredients constituting the main offence and be a part of it. In other words the minor offence should essentially be a cognate offence of the major offence and not entirely a distinct and different offence constituted by altogether different ingredients."
26. In the present case in hand also though recovery has been effected from accused Mohan Jaiswal and the same was within the knowledge of accused Ashok Paswan as per his confessional statement however the same cannot be read into evidence of S 27 Indian Evidence Act as no charge for the offence U/s 411 IPC was framed qua the accused Ashok Paswan and he did not had any notice of all the circumstances going to constitute offence U/s 411 IPC. Moreover offence U/s 411 IPC and offence U/s 452/394/34 IPC of which he was charged are not cognate offences and do not have the main and principle ingredients in common. Further, accused charged with one offence cannot be convicted for a offence of an entirely distinct and different type of offence merely because the facts proved constitute a minor offence for the simple reason that he had no notice of the offence and was not provided that opportunity for defending himself for such a different and distinct offence. Thus, in view of the above discussion, in the opinion of this court accused Ashok Paswan cannot be held liable for offence U/s 411/34 IPC in absence of the charge qua him to that effect and the same being different and distinct qua the offences for which the charges were levelled against the accused. Furthermore, the FIR No. 51/07 State Vs. Mohan Jaiswal 13/14 prosecution could not prove the case qua accused Ashok Paswan beyond reasonable doubt and thus he is acquitted for offence U/s 452/394/34 IPC.
27. The prosecution has proved beyond reasonable doubt the guilt of the accused Rohit Sahani for the offences U/s 452/394/34 IPC and the guilt of accused Mohan Jaiswal for the offence U/s 411 IPC. The accused Ashok Paswan is acquitted for the offences U/s 452/394/34 IPC.
28. Be listed for arguments on sentence qua convicts Rohit Sahani and Mohan Jaiswal on 16.11.2019 at 02:00 pm. Digitally signed by TANYA BAMNIYAL TANYA Date:
BAMNIYAL 2019.10.23
17:20:11
+0530
Announced in the Court (TANYA BAMNIYAL)
on 22.10.2019 MM02(SD)/22.10.2019
Certified that this judgment contains 14 pages and each page bears my signatures. Digitally signed by TANYA TANYA BAMNIYAL BAMNIYAL Date:
2019.10.23 17:20:17 +0530 (TANYA BAMNIYAL) MM02(SD)/22.10.2019 FIR No. 51/07 State Vs. Mohan Jaiswal 14/14