Delhi District Court
State vs Javed Khan on 18 July, 2024
IN THE COURT OF SH. SANJAY SHARMA-II : DJ (COMMERCIAL-11)
(CENTRAL): TIS HAZARI COURTS, DELHI
SC No. : 28675/2016
FIR No. : 33/2010
Under Section : 395/412 IPC
Police Station : Kotwali
CNR No. : DLCT01-000611-2010
State Versus 1. Javed Khan
S/o Mr. Machhn Khan
R/o Gali No. 2
Umed Pahalwan Ke Bhai Ka Makan
Near Jama Masjid, Indra Puri
Loni, Ghaziabad, U.P.
2. Mohd. Sajid @ Sam
S/o Mr. Mohd. Iqbal
R/o F-133, Raghubir Nagar
Delhi
New Address: F-112, Gali No. 4
Raghubir Nagar, Tagore Garden
Delhi-110027
3. Arif
S/o Mr. Mohd. Iqbal
R/o F-133, Raghubir Nagar
Delhi
New Address: F-112, Gali No. 4
Raghubir Nagar, Tagore Garden
Delhi-110027
4. Kewal Kishan Kapoor
S/o Late Chaman Lal
R/o H No. NA 252, Vishnu Garden
PS Khayala, Delhi
Date of Institution : 14.05.2010
Date of Arguments : 04.07.2024
Date of Judgment : 18.07.2024
JUDGMENT
FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 1 of 41 INTRODUCTION:
1. The case of the prosecution is that on 04.02.2010 at about 08.30 p.m. at Zakhira Pul, Anand Parbat, Delhi, the accused Javed Khan and Mohd. Sajid @ Sam (Hereinafter 'Mohd. Sajid') alongwith the accused Raju, Shanu and Kailash committed dacoity and robbed gold weighing 1 kg 250 gms., purse containing Rs. 5,000/-, wrist watch and mobile phone from Mr. Surya Dev Yadav (Hereinafter 'the complainant'). Thus, the accused persons Javed Khan and Mohd. Sajid are prosecuted for offence punishable under Section 395 of 'The Indian Penal Code, 1860' (In short 'IPC').
2. It is further case of the prosecution that on 19.02.2010 at about 04.15 p.m. on the road in front of Ghode Wala Mandir, Raghubir Nagar, Delhi, the accused Arif was found in possession of a piece of gold, weighing 292 gms., kept in a red colour pouch in his right pocket of trousers belonging to the complainant and as such, he dishonestly retained stolen property knowingly or having reason to believe that the said property had been transferred by the commission of dacoity. Thus, he is prosecuted for committing offence under Section 412 IPC.
3. It is further case of the prosecution that on 19.02.2010 at Kewal Jewellers, NA-252, Vishnu Garden, New Delhi-110018, the accused Kewal Kishan Kapoor was found in possession of a piece of gold, weighing 498.710 gms., belonging to the complainant and as such, he dishonestly retained stolen property knowingly or having reason to believe that the said property had been transferred by the commission of dacoity.
Thus, he is prosecuted for committing offence under Section 412 IPC.
FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 2 of 41 MEDICAL EXAMINATION OF THE COMPLAINANT:
4. On 04.02.2010 at 11.34 p.m., the complainant was brought by Ct. Raju to DDU Hospital, Delhi for medical examination with 'Alleged history of physical assault'.
5. Dr. Suhail, Junior Resident, DDU Hospital, Delhi examined the complainant. The complainant was 'conscious' and 'oriented' and his vital parameters were stable. He had tenderness on left side of chest. On examination, he had following injuries on his person:
(i) Swelling / tenderness over right mandibular region;
(ii) Bruise / swelling / tenderness over right zygomatic region; and
(iii) Tenderness over right thigh.
6. The nature of weapon was opined as 'blunt'. The complainant was referred to SR (Surgery) and Dental. NCCT (Head) was normal. Dr. Suhail prepared MLC Ex.PW10/A. DD NO. 6A DATED 05.02.2010:
7. On 05.02.2010 at about 04.00 a.m., PW-13 HC Jai Chand, Duty Officer, PS Anand Parbat received a PCR call from SI Krishan Kumar, through telephone, that 'जखखरर पपल कक ऊपर नरनगललई कख तरफ जरतक हपए मकरक बकटक कल चरकक ददखरकर 1 दकलल सलनर, 5,000/- रपयक व मलबरइल फलन छखन कर भरग गए, दशकरयतकतरर , SHO Moti Nagar व ACP ररजजरख गरररन कक सरथ मजकर पर खडक हह , जल दशकरयतकतरर नक मजकर आननद पवर त कर ददखलरयर हह'. He recorded the said information in roznamcha register, vide DD No. 6A Ex.PW11/A and sent a copy thereof, through Ct. Sadanand, to PW-11 ASI Ram Phool for appropriate action. He also informed SHO regarding the said call who alongwith Insp. B. Kaushik, ATO proceeded to the spot in an official vehicle.
FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 3 of 41
8. On receipt of DD No. 6A Ex.PW11/A, PW-11 ASI Ram Phool alongwith Ct. Rohtash reached at Zakhira Flyover where he met ACP Rajouri Garden, SHO, PS Moti Nagar and the complainant. He made enquiry from the complainant. SHO, Moti Nagar handed over statement and treatment paper of the complainant to him. The complainant identified the place in front of Old Delhi Railway Station from where he had boarded TSR. On being asked to give statement, the complainant stated that he was not feeling well and he would give statement later. SHO and ATO made enquiry from the complainant.
STATEMENT OF THE COMPLAINANT:
9. On 05.02.2010, the complainant reached PS Anand Parbat. PW-11 ASI Ram Phool recorded statement of the complainant Ex.PW6/A, as under:
"Statement of Mr. Surya Dev S/o Sh. Sauhrai Yadav R/o H. No. 145, Kavita Colony, Nangloi, Delhi. Age 33 years.
Stated that I am a permanent resident of Village Salaiya, Post Shree Ram Pur, PS Sherghati, District Gaya, Bihar. I am working with Mr. Ram Niwas Verma R/o 145, Kavita Colony, Nangloi since 10-12 years. On 04.02.2010 at about 02.00 p.m., I reached on duty at Vijay Chains Pvt. Ltd., Shop No. 1171, 2nd Floor, Kucha Mahajani, Chandni Chowk, Delhi from Nangloi. Vijay Verma, director of the company, handed over pure gold weighing approx. 1 kg 250 gms. in a packet to me and instructed me to take it to Nangloi Office. I tied the said packet with the belt of my trousers. At about 07.00 p.m., I proceeded from the shop. I reached in front of Old Delhi Railway Station from where I had taken a TSR. Age of the said driver of the said TSR was about 25 years and he had long hairs. He had a stronger physique than me. He was wearing red and white colour T-shirt and jeans. I sat in TSR and proceeded to Nangloi via Karol Bagh. TSR driver was talking to someone on phone. At about 08.30 p.m., I reached near Zakhira Flyover. TSR driver stopped TSR while stating that TSR developed some problem.
FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 4 of 41 TSR driver started looking here and there. In the meantime, I stated him that he should receive the charges and I will board another auto. TSR driver asked me to wait for some time. In the meanwhile, four boys boarded in the said TSR and caught hold of me. One of them caught my neck. I could not make noise. TSR driver started TSR and started running it in high speed. All four boys kept beating me and also talking to TSR driver. They threatened me that if I make noise, they would stab me with a knife. In the moving TSR, one boy opened my trousers and taken out packet containing gold, wallet containing Rs. 5,000/-, wrist watch and mobile phone containing SIM No. 9910365323. My wallet was also containing Voter I-card and Metro pass. I became unconscious. When I regained consciousness, I found myself on ground across pavement near Wazir Pur Depot. I reached DTC Bus Stop and I made a call to Director Sh. Ram Niwas Verma on his mobile No. 9310024000 from mobile phone of a person. Police reached there. They got my medical examination conducted. TSR driver and his four associates robbed me pursuant to a conspiracy and caused injury to me. Legal action be taken against them. I have heard my statement. I have understood it. It is correct. I can identify the boys, if they come before me."
10. PW-11 ASI Ram Phool was of the opinion that the place of incident is pertaining to Old Delhi Railway Station within jurisdiction of PS Chandni Chowk. He informed senior officers. On direction of SHO, PS Anand Parbat, he alongwith the complainant and Insp. (Investigation) B.K. Singh proceeded to PS Chandni Chowk. He recorded the enquiry conducted by him in roznamcha register, vide DD No. 11A.
ENDORSEMENT FOR REGISTRATION OF CASE:
11. On receipt of statement of the complainant Ex.PW6/A, a copy of DD No. 11A, MLC Ex.PW10/A, PW-20 SI Vimal Kumar made endorsement Ex.PW20/A for registration of case under Section 394/34 IPC at PS Kotwali.
FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 5 of 41 REGISTRATION OF FIR:
12. On 05.02.2010 at about 03.50 p.m., PW-2 HC Krishan Kumar, Duty Officer, PS Kotwali registered FIR No. 33/2010 under Section 394/34 IPC Ex.PW2/A and assigned investigation of the case to PW-20 SI Vimal Kumar. INVESTIGATION:
13. During investigation, PW-20 SI Vimal Kumar prepared unscaled site plan of the place of incident Ex.PW20/B at the instance of the complainant. He made efforts to trace the accused persons and the case property.
APPREHENSION OF THE ACCUSED JAVED KHAN:
14. On 10.02.2010, on receipt of a secret information, PW-19 ASI Om Prakash, AATS (North), Delhi apprehended the accused Javed Khan in front of Gopal Sweets, Kamla Nagar, Delhi, vide DD No. 31A under Section 41.1 (a) Cr.P.C. He interrogated him. The accused Javed Khan disclosed involvement of the accused Mohd. Sajid, Kailash, Shanu and Raju in the incident. He disclosed that the robbed gold was handed over to the accused Arif for sale.
15. PW-19 ASI Om Prakash recovered an amount of Rs. 65,000/- from the accused Javed Khan which he seized, vide seizure memo Ex.PW19/A. He deposited the envelope sealed with his seal having impression 'OP' containing the said amount of Rs. 65,000/- with PW-1 HC Rajinder Kumar, MHC(M), PS Roop Nagar. He arrested the accused Javed Khan, vide arrest memo Ex.PW19/B. He recorded his disclosure statement Ex.PW19/D. He informed arrest of the accused Javed Khan to PS Kotwali, vide DD No. 67B. He produced the accused Javed Khan before the Jurisdictional Magistrate on 11.02.2010.
FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 6 of 41 ARREST OF THE ACCUSED JAVED KHAN:
16. On 11.02.2010, PW-20 SI Vimal Kumar alongwith PW-12 Ct. Hemraj appeared before the Jurisdictional Magistrate. PW-19 ASI Om Prakash produced the accused Javed Khan in muffled face. After formal permission from the said Magistrate, PW-20 SI Vimal Kumar arrested the accused Javed Khan, vide arrest memo Ex.PW12/B. He recorded disclosure statement of the accused Javed Khan Ex.PW12/A. He filed an application for Test Identification Parade (TIP) of the accused Javed Khan. However, the accused Javed Khan refused to participate in Test Identification Parade (TIP), vide TIP proceedings Ex.PW16/A. The accused Javed Khan was remanded to judicial custody.
17. On 15.02.2010, PW-20 SI Vimal Kumar obtained police remand for 3 days in respect of the accused Javed Khan. During investigation, he prepared pointing out memo at the instance of the accused Javed Khan Ex.PW12/C. However, he could not trace the other accused persons and case property. APPREHENSION OF THE ACCUSED MOHD. SAJID:
18. On 15.02.2010, on receipt of secret information, PW-19 ASI Om Prakash, AATS (North), Delhi apprehended the accused Mohd. Sajid alongwith TSR No. DL 1RL 2647 on Outer Ring Road, near Chandgiram Akhara, vide DD No. 68B under Section 41.1 (a) Cr.P.C. He interrogated him. He arrested the accused Mohd. Sajid, vide arrest memo Ex.PW19/F. He recorded his disclosure statement Ex.PW19/H. He seized TSR No. DL 1RL 2647, vide seizure memo Ex.PW19/I. The said TSR was found to have been stolen, vide FIR No. 15/2010 dated 23.01.2010 under Section 356/379 IPC registered at PS Civil Lines. He deposited the said TSR with PS Civil Lines.
FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 7 of 41 ARREST OF THE ACCUSED MOHD. SAJID:
19. PW-19 ASI Om Prakash informed apprehension of the accused Mohd. Sajid to PS Civil Lines and PS Kotwali, vide DD No. 24A and 68B respectively.
20. On 16.02.2010, PW-19 ASI Om Prakash produced the accused Mohd. Sajid before the Duty Magistrate in muffled face who directed to produce him before the Jurisdictional Magistrate on 17.02.2010.
21. On 17.02.2010, PW-20 SI Vimal Kumar arrested the accused Mohd. Sajid, after taking permission of the Jurisdictional Magistrate, vide arrest memo Ex.PW12/D. He recorded his disclosure statement Ex.PW12/E. He filed an application for Test Identification Parade (TIP) of the accused Mohd. Sajid who refused to participate in Test Identification Parade (TIP).
Thereafter, the accused Mohd. Sajid was remanded to judicial custody.
TRANSFER OF INVESTIGATION:
22. On 18.02.2010, on the direction of DCP (North), investigation of the case was assigned to AATS (North), Delhi.
23. PW-20 SI Vimal Kumar sent the file to AATS (North), Delhi.
24. Further investigation of the case was assigned to PW-21 SI Naseeb Singh, AATS (North), Delhi.
25. On 18.02.2010, PW-21 SI Naseeb Singh obtained two days police remand of the accused Mohd. Sajid. He made efforts to trace the other accused persons and case property.
APPREHENSION OF THE ACCUSED ARIF:
26. On 19.02.2010, on receipt of secret information, PW-21 SI Naseeb Singh apprehended the accused Arif.
FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 8 of 41
27. PW-21 SI Naseeb Singh recovered 292 gms. gold from a red pouch kept in right pocket of trousers of the accused Arif. He seized the said recovered gold, vide seizure memo Ex.PW21/A. He interrogated the accused Arif. He arrested the accused Arif, vide arrest memo Ex.PW21/B. He recorded his disclosure statement Ex.PW21/D. ARREST OF THE ACCUSED KEWAL KISHAN KAPOOR:
28. On the pointing out of the accused Arif, PW-21 SI Naseeb Singh reached at Kewal Jewelers at Shop No. NA-252, Vishnu Garden, Delhi to whom the accused Arif sold the robbed gold.
29. The accused Kewal Kishan Kapoor handed over robbed gold weighing 498.710 gms. and receipt, vide Sl. No. 013 dated 05.02.2010 to PW-21 SI Naseeb Singh. PW-21 SI Naseeb Singh kept the recovered gold in an envelope and sealed it with his seal having impression 'NS' and seized it, vide seizure memo Ex.PW21/E. He also seized the receipt, vide Sl. No. 013 dated 05.02.2010, vide seizure memo Ex.PW21/F. He deposited the sealed parcels in malkhana. He produced the accused Arif and Mohd. Sajid before the Jurisdictional Magistrate on 20.02.2010.
30. On 10.03.2010, PW-21 SI Naseeb Singh seized TSR No. DL 1RL 2647, vide seizure memo Ex.PW21/J.
31. On 14.03.2010, PW-21 SI Naseeb Singh arrested the accused Kewal Kishan Kapoor, vide arrest memo Ex.PW21/L. CHARGE-SHEET:
32. PW-21 SI Naseeb Singh charge-sheeted the accused Javed and Mohd. Sajid under Section 395 IPC and the accused Arif and Kewal Kishan Kapoor under Section 412 IPC.
FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 9 of 41 COMMITTAL PROCEEDINGS:
33. Vide order dated 10.05.2010, the Jurisdictional Magistrate committed the case to the Court of Session. CHARGE:
34. Vide order dated 26.05.2010, the accused Javed Khan and Mohd. Sajid @ Sam were charged for committing offence under Section 395 IPC. The accused Arif and Kewal Kishan Kapoor were charged for committing offence under Section 412 IPC. The accused persons abjured their guilt and claimed trial.
APPREHENSION AND DISCHARGE OF THE ACCUSED KAILASH:
35. On 30.06.2010, PW-19 ASI Om Prakash, AATS (North), Delhi apprehended the accused Kailash, vide DD No. 23A, under Section 41.1 (d) Cr.P.C. PS Maurice Nagar, Delhi. He arrested him. He recorded his disclosure statement. He produced him before the Jurisdictional Magistrate. However, the complainant did not identify him in Test Identification Parade (TIP) conducted on 03.08.2010. Thereafter, the accused Kailash was released, vide order dated 12.08.2010.
TRIAL:
36. The prosecution examined 21 witnesses, as under:
The witnesses Description of the witnesses PW-1 HC Rajinder Kumar MHC(M), PS Roop Nagar PW-2 HC Krishan Kumar Duty Officer, PS Kotwali PW-3 Vijay Verma Employer of the complainant PW-4 SI Praveen Kumar He had taken the complainant to CRO, PHQ for preparation of sketches of the suspected persons PW-5 Ct. Mukesh Kumar Handed over original rukka and a copy of FIR to SI Vimal Kumar at the place of incident FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 10 of 41 PW-6 Surya Dev Yadav The complainant PW-7 HC Rakesh MHC(M), PS Kotwali PW-8 Som Prakash Regd. owner of TSR No. DL 1RL 2647 PW-9 Raj Kumar Nodal Officer, Reliance Communication Ltd.
PW-10 Dr. Narender Casualty Medical Officer, DDU Hospital
Solanki
PW-11 ASI Ram Phool Enquiry Officer
PW-12 Ct. Hemraj Arrest witness qua the accused Javed and
Mohd. Sajid
PW-13 HC Jai Chand DD Writer, PS Anand Parbat
PW-14 Ram Niwas Verma Superdar of the case property / recovered gold
PW-15 Tarun Khurana Nodal Officer, Bharti Airtel Ltd.
PW-16 Mr. J.P. Nahar, Ld. Conducted TIP proceedings qua the accused MM, Tis Hazari Courts Javed and Mohd. Sajid PW-17 Ms. Geetanjali, Ld. Conducted TIP proceedings of recovered gold MM, Tis Hazari Courts PW-18 Ct. Pramod M.V. Duty Officer, PS Civil Lines PW-19 ASI Om Parkash Apprehended the accused Javed and Mohd.
Sajid and arrest and recovery witness qua the accused Arif and Kewal Kishan Kapoor PW-20 SI Vimal Kumar 1st Investigating Officer PW-21 SI Naseeb Singh 2nd Investigating Officer LIST OF PROSECUTION DOCUMENTS:
37. The prosecution relied on the documents, as under:
Exhibit Description of the documents Ex.PW1/A RC No. 6/21/10 dated 05.04.2010 issued by PS Roop Nagar Ex.PW2/A FIR No. 33/2010 under Section 394/34 IPC PS Kotwali Ex.PW3/A Photocopy of challan of the gold Ex.PW6/A The complaint Ex.PW7/A Entry pertaining to deposit of two sealed parcels and
personal search articles of the accused Arif, vide Sl. No. 5679 in Reg. No. 19, PS Kotwali Ex.PW7/B Entry pertaining to deposit of TSR No. DL 1RL 2647, vide Sl. No. 5799 in Reg. No. 19, PS Kotwali Ex.PW7/C Entry pertaining to deposit of an amount of Rs. 65,000/-
contained in a sealed parcel, vide Sl. No. 5929 in Reg. No. 19, PS Kotwali Ex.PW7/D RC No. 85/81 dated 11.03.2010 FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 11 of 41 Ex.PW8/A Superdari bond executed by PW-8 Som Prakash, owner of TSR No. DL 1RL 2647 Ex.PW8/1 Photographs of TSR No. DL 1RL 2647 to Ex.PW8/6 Ex.PW8/7 TSR No. DL 1RL 2647 Ex.PW9/A Customer Application Form qua mobile No. 9310024000 Ex.PW9/B Voter I-card of Mr. Ram Niwas Verma Ex.PW9/C Photograph of Mr. Ram Niwas Verma Ex.PW9/D Call Detail Record (CDR) w.e.f. 01.02.2010 to 07.02.2010 qua mobile No. 9310024000 subscribed to Ram Niwas Verma Ex.PW10/A MLC of the complainant Ex.PW11/A DD No. 6A dated 05.02.2010 at 04.00 a.m. Ex.PW12/A Disclosure statement of the accused Javed Khan Ex.PW12/B Arrest memo of the accused Javed Khan Ex.PW12/C Pointing out memo at the instance of the accused Javed Khan Ex.PW12/D Arrest memo of the accused Mohd. Sajid Ex.PW12/E Disclosure statement of the accused Mohd. Sajid Ex.PW14/A Superdarinama regarding the recovered pieces of gold Ex.PW14/B Letter dated 25.02.2010 authorizing PW-14 Ram Niwas Verma to receive the recovered gold Ex.PW14/C Tax invoice of GOLD BAR 995 weighing 1501.150 gms. Ex.PW15/A Call Detail Record w.e.f. 01.02.2010 to 05.02.2010 qua mobile No. 9910365323 subscribed to the complainant Ex.PW15/B Customer Application Form qua mobile No. 9910365323 Ex.PW15/C Voter I-card of the complainant Ex.PW15/D Certificate under Section 65 of 'The Indian Evidence Act' Ex.PW16/A TIP proceedings qua the accused Javed Khan Ex.PW16/B Certificate issued by PW-16 Mr. J.P. Nahar, Ld. MM Ex.PW16/C Application filed by SI Vimal Kumar for copy of TIP Ex.PW17/A TIP proceedings of the case property Ex.PW17/B Certificate issued by PW-17 Ms. Geetanjali, Ld. MM Ex.PW17/C Application filed by SI Vimal Kumar for a copy of TIP Ex.PW18/A FIR No. 15/2010 under Section 356/379 IPC registered on 23.01.2010 at PS Civil Lines Ex.PW19/A Seizure memo of amount of Rs. 65,000/- recovered from the accused Javed Khan Ex.PW19/B Arrest memo of the accused Javed Khan FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 12 of 41 Ex.PW19/C Personal search memo of the accused Javed Khan Ex.PW19/D Disclosure statement of the accused Javed Khan Ex.PW19/E Kalandra, vide DD No. 31A dated 10.02.2010, under Section 41.1 (a) Cr.P.C. qua the accused Javed Khan Ex.PW19/F Arrest memo of the accused Mohd. Sajid Ex.PW19/G Personal search memo of the accused Mohd. Sajid Ex.PW19/H Disclosure statement of the accused Mohd. Sajid Ex.PW19/I Seizure memo of TSR No. DL 1RL 2647 Ex.PW19/PX Kalandra, vide DD No. 66B dated 15.02.2010, under Section 41.1 (a) Cr.P.C. qua the accused Mohd. Sajid Ex.PW20/A Rukka Ex.PW20/B Unscaled site plan of the place of incident Ex.PW21/A Seizure memo of gold weighing 292 gms. recovered from the accused Arif Ex.PW21/B Arrest memo of the accused Arif Ex.PW21/C Personal search memo of the accused Arif Ex.PW21/D Disclosure statement of the accused Arif Ex.PW21/E Seizure memo of gold weighing 498.710 gms. recovered from the accused Kewal Kishan Kapoor Ex.PW21/F Seizure memo of receipt, vide Sl. No. 013 dated 05.02.2010 Ex.PW21/G Carbon copy of receipt, vide Sl. No. 013 dated 05.02.2010 Ex.PW21/H Original receipt, vide Sl. No. 013 dated 05.02.2010, recovered from the personal search of the accused Arif Ex.PW21/J Seizure memo of TSR No. DL 1RL 2647 Ex.PW21/K1 Photographs of TSR No. DL 1RL 2647 to Ex.PW21/K6 Ex.PW21/L Arrest memo of the accused Kewal Kishan Kapoor Ex.PW21/M Personal search memo of the accused Kewal Kishan Kapoor Ex.PW21/N Disclosure statement of the accused Kewal Kishan Kapoor Ex.P1 Piece of gold having SUISSE 1 KILO engraved thereon Ex.P2 Piece of gold having CHI FONDEUR engraved thereon Ex.PZ TIP proceedings qua the accused Mohd. Sajid Mark PX-1 Copy of kalandra, vide DD No. 31A dated 10.02.2010, under Section 41.1 (a) Cr.P.C. qua the accused Javed Khan Mark PX-2 Copy of DD No. 66B dated 15.02.2010 Mark PX-3 Copy of DD No. 31A dated 10.02.2010 Mark PX-4 Copy of kalandra, vide DD No. 66B dated 15.02.2010, under Section 41.1 (a) Cr.P.C. qua the accused Mohd. Sajid FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 13 of 41 EXAMINATION OF THE ACCUSED PERSONS:
38. Incriminating circumstances appearing in evidence were explained to the accused persons, under section 313 Cr.P.C.
They denied each and every circumstance appearing in evidence against them. They stated that they have been falsely implicated in this case. They stated that the prosecution witnesses falsely deposed. They pleaded innocence.
PLEA OF DEFENCE:
39. The plea of the accused Javed is, as under:
"Q. 40. Do you want to say anything else? Ans. I am innocent. I have been falsely implicated in this case. Nothing was recovered from my possession. I did not commit any robbery. I do not know the other co-accused persons in this case."
40. The plea of the accused Mohd. Sajid is, as under:
"Q. 20. It is in evidence against you that PW-20 IO SI Vimal Kumar produced you before Sh. Sudesh Kumar, Ld. MM and moved an application for TIP but you refused to take part in TIP and Sh. Sudesh Kumar had drawn the TIP proceedings collectively Ex.PZ. What you have to say?
Ans: It is a matter of record. I was shown to some witnesses by the police as such I refused to participate in the TIP.
Q. 40. Do you want to say anything else?
Ans: I am innocent. I have been falsely implicated in this case. I did not commit any offence. The police officials have falsely implicated me in this case."
41. The plea of the accused Arif is, as under:
"Q. 40. Do you want to say anything else? Ans: I am innocent. I have been falsely implicated in this case. Nothing was recovered from my possession or at my instance. I did not lead the police party to the shop of Keval Kishan. I was made to sign some blank papers. The cash memos does not bear my signature. In fact, my brother Sajid was in custody of the police and I was called at the office of the special staff.
FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 14 of 41 When I went there to meet my brother Sajid, illegal gratification was demanded from me when I did not obliged then I was also implicated in this case. I have not committed any offence."
42. The plea of the accused Kewal Kishan Kapoor is, as under:
"Q. 26. It is in evidence against you that you told the IO that you had purchased the said piece of gold on 05.02.2010 from your co- accused Arif and word Vijay was written on the one side of piece of gold and word VC was also written on the other side of the gold piece. What you have to say?
Ans: On 05.02.2010, said Arif had come to me and he sold the above said piece of gold to me for which I had paid Rs. 7,93,946/- and I had given a purchase receipt of my jewellery shop on which accused Arif had signed. I had purchased the gold on market rate. Q. 40. Do you want to say anything else?
Ans: I am innocent. Police initially had not made me accused and I was told that I was kept as a witness in this case but later on 14.03.2010, I was falsely implicated in this case as I had not fulfilled the demand of police of illegal gratification. I had not given any disclosure statement to the police and police had taken my signatures on blank papers. I had been victimised in this case. I have purchased the piece of gold on the prevailing market rates which is mentioned in the receipt issued by me."
DEFENCE EVIDENCE:
43. The defence examined 3 witnesses, as under:
(a) DW-1 Kewal Kishan Kapoor;
(b) DW-2 Malvinder Vijay, VAT Inspector, Department of Trade and Taxes, Vyapar Bhawan, I.P. Estate, New Delhi; and
(c) DW-3 Mst. Afroz Jahan, mother of the accused Mohd. Sajid and Arif.
FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 15 of 41 APPEARANCE:
44. I have heard arguments of Mr. Amit Dabas, Ld. Addl. PP for the State, Mr. Anil Kumar Kamboj, Ld. Legal Aid Counsel for the accused Javed Khan and Mohd. Sajid, Mr. Rashid Hashmi, Ld. Counsel for the accused Arif and Mr. Naresh Talwar, Ld. Counsel for the accused Kewal Kishan Kapoor and examined the evidence, oral and documentary, and perused written arguments filed by the accused Kewal Kishan Kapoor.
CONTENTIONS OF THE PROSECUTION:
45. Mr. Amit Dabas, Ld. Addl. PP for the State contended that the prosecution adduced credible, unblemished and trustworthy evidence, and proved charges against the accused persons beyond reasonable doubt. He contended that the complainant is a credible witness. He contended that the complainant has no reason to falsely implicate the accused persons. He contended that the complainant has narrated the incident and identified the accused Javed Khan and Mohd. Sajid. He contended that in order to sustain a charge under Section 395 IPC, the prosecution has to prove involvement of five persons in committing robbery. He contended that non-identification of one of the persons apprehended by the police and non-apprehension of other accused persons are not significant. He contended that the complainant proved that the incident of dacoity was committed by five persons and he identified the accused Javed Khan and Mohd. Sajid before this Court. He contended that the accused Javed Khan and Mohd. Sajid refused to participate in Test Identification Parade without any reasonable explanation and it is a strong incriminating circumstance against them.
FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 16 of 41
46. Ld. Addl. PP for the State contended that pursuant to disclosure statement of the accused Javed Khan and Arif, gold weighing 498.710 gms. was recovered from the accused Kewal Kishan Kapoor. He contended that gold weighing 292 gms. was recovered from the accused Arif. He contended that the accused Arif did not offer any reasonable explanation for conscious possession of such huge quantity of gold immediately after the incident. He contended that the accused Arif sold gold to the accused Kewal Kishan Kapoor on 05.02.2010 immediately after the incident. He contended that presumption under Section 114
(a) of 'The Evidence Act, 1872' should be drawn against the accused Arif. He contended that the accused Kewal Kishan Kapoor purchased gold from the accused Arif despite having reason to believe that the said gold was stolen property. He contended that the complainant, PW-3 Vijay Verma and PW-14 Ram Niwas Verma, owner of the said gold identified the gold before the Court. He contended that PW-3 Vijay Verma identified the gold Ex.P1 and Ex.P2 during TIP proceedings. He contended that the prosecution proved that the gold Ex.P1 and Ex.P2 was the gold robbed from the complainant. He contended that the evidence of the complainant, refusal of the accused Javed Khan and Mohd. Sajid to participate in Test Identification Parade (TIP), identification of the accused Javed Khan and Mohd. Sajid before the Court, recovery of material quantity of gold from the accused Arif and at his instance from the accused Kewal Kishan Kapoor and absence of reasonable explanation for not joining TIP and conscious possession of the gold by the accused Arif and Kewal Kishan Kapoor proved the charges under Section 395 and 412 IPC against the accused persons.
FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 17 of 41 CONTENTIONS OF THE DEFENCE:
47. Mr. Anil Kumar Kamboj, Ld. Legal Aid Counsel for the accused Javed Khan and Mohd. Sajid contended that the prosecution has not proved its case beyond reasonable doubt. He contended that the entire case of the prosecution since the time of the incident, as alleged by the complainant, till apprehension of the accused Arif and recovery of gold Ex.P1 and Ex.P2 is highly doubtful. He contended that the accused Javed Khan and Mohd.
Sajid were falsely implicated in this case. He contended that the complainant has not given any description of the offenders in the complaint. He contended that the complainant stated that four sketches of the offenders were drawn at his instance. However, he has not given any description of the offenders. He contended that the accused Javed Khan was apprehended at the instance of a secret informer. He contended that no recovery was effected from the accused Javed Khan. He contended that PW-12 Ct. Hemraj, who accompanied PW-20 SI Vimal Kumar at the time of arrest of the accused Javed Khan, has not supported the case of the prosecution. He contended that the accused Javed Khan refused to join Test Identification Parade (TIP) as his photographs were shown by the IO to the complainant. He contended that the accused Mohd. Sajid also refused to participate in Test Identification Parade (TIP) as he was shown to the complainant in the police station. He contended that there is no recovery from the accused Mohd. Sajid. He contended that there was no investigation by PW-20 SI Vimal Kumar. He contended that PW- 20 SI Vimal Kumar did not take any step to apprehend the accused Mohd. Sajid and Arif despite their involvement surfaced in disclosure statement of the accused Javed Khan on 10.02.2010 FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 18 of 41
48. Ld. Legal Aid Counsel for the accused Javed Khan and Mohd. Sajid contended that there is no evidence against the accused Javed Khan and Mohd. Sajid to connect them with the incident in question, if it had taken place. He contended that the accused Javed Khan and Mohd. Sajid deserve to be acquitted from the charge under Section 395 IPC.
49. Mr. Rashid Hashmi, Ld. Counsel for the accused Arif contended that there is issue of jurisdiction as the incident had taken place within jurisdiction of PS Anand Parbat whereas FIR was lodged with PS Kotwali. He contended that the case was initially registered under Section 394 IPC. However, it was converted into under Section 395 IPC in the charge-sheet. He contended that there should be five persons to invoke Section 395 IPC. He contended that the suspect, namely, Kailash @ Umesh was not identified in Test Identification Parade (TIP) and he was discharged on 12.08.2010. He contended that the other two accused persons were never apprehended. He contended that in any other case, the occurrence of the incident appears to be suspicious. He contended that there is no record of PCR calls or investigation till lodging of DD No. 6A dated 05.02.2010 at 04.00 a.m. He contended that the conduct of the complainant is highly suspicious. He contended that the complainant is not a credible witness. He contended that DD No. 6A Ex.PW11/A states that the caller informed that an incident of snatching had taken place with his son. However, the complainant is an employee of the caller i.e. PW-14 Ram Niwas Verma. He contended that identification of the case property is highly doubtful.
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50. Ld. Counsel for the accused Arif contended that the evidence of the complainant, PW-3 Vijay Verma and PW-14 Ram Niwas Verma is contradictory on the aspect of identification of the case property. He contended that PW-21 SI Naseeb Singh did not state as to from where he arranged mixing property. He contended that the prosecution could not prove that any gold was recovered from the accused Arif or the gold produced before the Court is the part of the robbed gold. He contended that the accused Arif deserves to be acquitted from the charge under Section 412 IPC.
51. Mr. Naresh Talwar, Ld. Counsel for the accused Kewal Kishan Kapoor contended that initially, the accused Kewal Kishan Kapoor was not arrested at the time of recovery of gold on 19.02.2010. He contended that PW-21 SI Naseeb Singh arrested the accused Kewal Kishan Kapoor on 14.03.2010 without any reason. He contended that the accused Kewal Kishan Kapoor produced a copy of receipt Ex.PW21/G, vide seizure memo Ex.PW21/F, pertaining to purchase of 498.710 gms. gold for Rs. 7,93,941/- from the accused Arif on 05.02.2010. He contended that the accused Kewal Kishan Kapoor is carrying on business in the name and style of 'M/s. Kewal Jewelers' from his residence, vide TIN No. 07290325796. He contended that the accused Kewal Kishan Kapoor appeared as DW-1 and examined DW-2 Malvinder Vijay, VAT Inspector who proved VAT returns Ex.DW2/B. He contended that the accused Arif is running a meat shop in the vicinity of the accused Kewal Kishan Kapoor and he sold the gold while stating that his relative had brought it from Dubai. He contended that the accused Kewal Kishan Kapoor made payment as per applicable rate of gold.
FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 20 of 41
52. Ld. Counsel for the accused Kewal Kishan Kapoor contended that the accused Kewal Kishan Kapoor purchased the gold as per market rate and he had no reason to believe that the said gold was stolen property. He contended that the accused Kewal Kishan Kapoor should be discharged from the offence under Section 412 IPC.
SECTION 391 IPC:
53. Section 391 IPC defines 'dacoity'. Section 391 IPC is, as under:
"Section 391. Dacoity. - when five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
54. In Ganesan vs. State Rep. by Station House Officer, 2021 SCC OnLine SC 1023, Hon'ble Supreme Court of India held, as under:
"22.1. Section 391 IPC defines "dacoity". When five or more persons conjointly commit or attempt to commit a robbery, the accused then can be said to have committed the "dacoity".
23. On conjoint reading of the aforesaid provisions, commission of "robbery" is sine qua non. The "dacoity" can be said to be an exaggerated version of robbery. If five or more persons conjointly commit or attempt to commit robbery it can be said to be committing the "dacoity". Therefore, the only difference between the "robbery" and the "dacoity" would be the number of persons involved in conjointly committing or attempt to commit a "robbery". The punishment for "dacoity" and "robbery" would be the same except that in the case of "dacoity" the punishment can be with imprisonment for life.....
FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 21 of 41
34. Now so far as the submission on behalf of the appellant-accused that no case is made out even for the offence under Section 391 IPC and they cannot be punished under Section 395 IPC as what is required to be proved is involvement of five or more persons conjointly in committing the robbery and in the present case only four persons are tried and the prosecution has failed to prove the involvement of five or more persons. However, it is required to be noted that as such in the FIR there was a reference to five persons involved in committing the robbery. Even the charge-sheet was filed against five persons. However, as two accused absconded, the trial was split and three accused came to be tried. One accused Benny came to be tried subsequently and one person is still absconding. Even there are concurrent findings recorded by all the courts below that five persons were involved in committing the offence of robbery. Merely because some of the accused absconded and less than five persons came to be tried in the trial, it cannot be said that the offence under Section 391 IPC punishable under Section 395 IPC is not made out. What is required to be considered is the involvement and commission of the offence of robbery by five persons or more and not whether five or more persons were tried. Once it is found on evidence that five or more persons conjointly committed the offence of robbery or attempted to commit the robbery a case would fall under Section 391 IPC and would fall within the definition of "dacoity". Therefore, in the facts and circumstances, the accused can be convicted for the offence under Section 391 IPC punishable under Section 395 IPC."
(emphasis supplied)
55. In the complaint Ex.PW6/A, the complainant categorically stated about involvement of five persons in commission of the robbery. After investigation, the charge-sheet was filed against five persons including the accused Javed Khan and Mohd. Sajid. In his evidence, the complainant categorically stated that five persons were involved in commission of the robbery. The fact that one person, namely, Kailash @ Umesh was not identified and two persons could not be apprehended would not take the case out of ambit of Section 391 IPC.
FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 22 of 41
56. As already noted above, abscondence of two accused persons and non-identification of one suspect and trial of two persons is not a decisive parameter and what is required to be considered is involvement and commission of the offence of robbery by five persons or more and not whether five or more persons were tried. Therefore, this Court does not find any merit in contention of Ld. Defence Counsel that offence under Section 395 IPC is not made out as two persons were tried and three persons could not be apprehended.
57. As regards contention of Ld. Defence Counsel that initially, FIR was registered under Section 394/34 IPC and the charge-sheet was filed under Section 395 IPC, it can be stated that registration of FIR under wrong provision of IPC is inconsequential. Investigating Officer rectified the defect while filing the charge-sheet under Section 395 IPC. CONCEPT OF PROOF BEYOND REASONABLE DOUBT:
58. The golden thread of criminal jurisprudence is that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proven guilty. While dealing with a criminal trial, the Court must not be oblivious of the most fundamental principle of criminal jurisprudence, which is, that the accused 'must be' and not merely 'may be' guilty before the Court proceeds to con Investigating vict him. The mental distance between 'may be' and 'must be' is long and divides vague 'conjectures' from 'conclusions'.
FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 23 of 41 MODE OF ASSESSMENT OF EVIDENCE:
59. In criminal cases, the Court cannot proceed to consider the evidence of the prosecution witnesses in a mechanical way. The broad features of the prosecution case, the probabilities and the normal course of human conduct of a prudent person are some of the factors which are always kept in mind while evaluating the merit of the case. APPRECIATION OF EVIDENCE:
60. While appreciating the intrinsic worth of evidence, the Court must satisfy itself as to whether the evidence of the witness, if read in its entirety, has a ring of truth. Appreciation of evidence is an onerous task. In order to appreciate the evidence, the Court can make use of principles for appreciation of evidence enunciated in judicial precedents.
61. In Balu Sudam Khalde and Another vs. State of Maharashtra, 2023 SCC OnLine SC 355, Hon'ble Supreme Court of India held, as under:
"25. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
"I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 24 of 41 II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be human tape recorder.
FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 25 of 41 X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness."
POINTS FOR DETERMINATION:
62. The issue before the Court is whether the accused Javed Khan and Mohd. Sajid committed dacoity and robbed gold weighing 1 kg. 250 gms. alongwith purse, Rs. 5,000/-, wrist watch and mobile phone from the complainant.
63. The next issue before the Court is whether the gold weighing 292 gms. recovered from the accused Arif and gold weighing 498.710 gms. recovered from the accused Kewal Kishan Kapoor at the instance of the accused Arif is part of the gold robbed from the complainant.
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64. The final issue is whether the accused Arif and Kewal Kishan Kapoor dishonestly received or retained stolen property despite knowledge or having reason to believe it to have been transferred by commission of dacoity.
65. The case of the prosecution is founded on five planks, as under:
(a) Refusal of the accused Javed Khan and Mohd.
Sajid to join Test Identification Parade (TIP) without any reasonable explanation;
(b) Identification of the accused Javed Khan and Mohd. Sajid by the complainant before the Court;
(c) Apprehension and recovery of gold weighing 292 gms. from possession of the accused Arif, pursuant to disclosure statement of the accused Javed Khan and Mohd. Sajid;
(d) Recovery of gold weighing 498.710 gms. from the accused Kewal Kishan Kapoor at the instance of the accused Arif; and
(e) Identification of the recovered gold Ex.P1 and Ex.P2 by the complainant, PW-3 Vijay Verma and PW-14 Ram Niwas Verma.
ANALYSIS AND DISCUSSION:
66. The case of the prosecution is that on 04.02.2010 at about 08.30 p.m. at Zakhira Pul, Anand Parbat, Delhi, the accused Javed Khan and Mohd. Sajid alongwith three associates committed dacoity and robbed gold weighing 1 kg. 250 gms., purse, Rs. 5,000/-, wrist watch and mobile phone from the complainant. The complainant, in his evidence, stated that he became unconscious on account of beating and he regained his consciousness on the pavement near Wazirpur Bus Depot. He stated that he made a call to PW-14 Ram Niwas Verma from mobile phone of a passer-by and thereafter, police reached there and taken him to DDU Hospital. He stated that police recorded his statement Ex.PW6/A and he accompanied the police to the place of incident where police prepared site plan at his instance.
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67. In his cross-examination, the complainant stated that PW-20 SI Vimal Kumar recorded his statement on 04.02.2010 and 05.02.2010. He stated that he regained consciousness at 08.30 p.m. on 04.02.2010 when he made a call to his employer. He stated that PW-14 Ram Niwas Verma reached at the spot about 30 to 40 minutes after the incident. He stated that PW-14 Ram Niwas Verma brought police with him. He stated that his statement was recorded by the police in the hospital. He stated that one of his statements was recorded at PS Chandni Chowk on the next day of incident. He stated that he remained at Zakhira Pul throughout the night. He stated that he signed his statement Ex.PW6/A in police station at about 05.00 or 06.00 p.m. He stated that he was called from the hospital and after visiting crime branch office, he had seen the accused Mohd. Sajid.
68. In this regard, it is relevant to note that PW-3 Vijay Verma, employer of the complainant stated that at about 09.00 p.m., his father telephoned him that gold was robbed from the complainant and asked him to reach Zakhira. He stated that he alongwith his brother, namely, Sonu reached Zakhira. However, no one was available there. He stated that he made another call to his father and asked him about the complainant. He stated that his father told him to reach at Wazirpur Depot and thereafter, he reached Wazirpur Bus Depot where he found the complainant in serious condition. He stated that police reached there and taken the complainant to DDU Hospital. In his cross-examination, he stated that he reached Zakhira Pul at about 09.30 p.m. He stated that he reached Wazirpur Bus Depot at 10.00 p.m. where he found the complainant and PW-14 Ram Niwas Verma.
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69. In his cross-examination, PW-3 Vijay Verma stated that police was not present there and the police arrived after 10 minutes of his reaching. He stated that the complainant remained hospitalized for two days and thereafter, he was shifted to Sparsh Hospital where he remained hospitalized for 3-4 days. In his further cross-examination, he stated that he again contacted his father at 10.15 p.m. who stated that he was going to DDU Hospital alongwith the complainant and thereafter, he reached DDU Hospital.
70. PW-14 Ram Niwas Verma, father of PW-3 Vijay Verma has not stated anything on the aspect of receipt of call from the complainant and his presence at the place of incident.
71. On careful examination of evidence of the complainant, PW-3 Vijay Verma and PW-14 Ram Niwas Verma on the aspect of the occurrence of the incident, reporting of the incident, medical examination of the complainant and recording of statement of the complainant, there are material inconsistencies, contradictions and omissions. Though the said witnesses have no enmity against the accused Javed Khan and Mohd. Sajid. However, such material discrepancies in the case of the prosecution from the time of occurrence of the incident and registration of FIR adversely affect the authenticity, credibility and truthfulness of the case of the prosecution and evidence of the said witnesses.
72. There is no record of any PCR call made to the police between 09.00 p.m. on 04.02.2010 to 04.00 a.m. on 05.02.2010. The first DD pertaining to the reporting of the incident is DD No. 6A Ex.PW11/A recorded at 04.00 a.m. on 05.02.2010.
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73. In DD 6A Ex.PW11/A, the caller had informed that the robbers robbed 1 kg. gold, Rs. 5,000/- and mobile phone from his son by showing a knife.
74. In the said DD, it is recorded that SHO, PS Moti Nagar and ACP, Rajouri Garden were present at the spot. However, there is no record pertaining to any PCR call necessitating departure and presence of the said police officials at the spot.
75. DD No. 11A dated 05.02.2010 states that PW-11 ASI Ram Phool reached at Zakhira Flyover where he met SHO, PS Moti Nagar, ACP, Rajouri Garden and the complainant. It further states that SHO, PS Anand Parbat and Insp. B. Kaushik, ATO, PS Anand Parbat also reached there. It further states that SHO, PS Moti Nagar handed over statement of the complainant and treatment papers to him. However, there is no such statement on the record.
76. It is relevant to note that the complainant was examined at 11.34 p.m. on 04.02.2010 'with alleged history of physical assault' in DDU Hospital. MLC Ex.PW10/A states that the complainant was brought by Ct. Raju. There is no record pertaining to any PCR call whereby Ct. Raju reached at the place of incident and had taken the complainant to DDU Hospital.
77. It is further relevant to note that PW-11 ASI Ram Phool was the enquiry officer. He stated that he reached at the place of incident at 04.15 a.m. on 05.02.2010. He stated that SHO, PS Moti Nagar handed him over medical papers of the complainant. He stated that he had not recorded the statement of the complainant as he had stated that he was not feeling well.
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78. PW-11 ASI Ram Phool recorded statement of the complainant after 03.00 p.m. on 05.02.2010 and thereafter, he accompanied the complainant to PS Kotwali where FIR was recorded at 03.50 p.m. on 05.02.2010.
79. PW-20 SI Vimal Kumar was the 1st Investigating Officer. He stated that he had prepared site plan of the place of incident Ex.PW20/B at the instance of PW-11 ASI Ram Phool.
80. To reiterate, a careful examination of evidence of the prosecution witnesses, particularly, evidence of the complainant, PW-3 Vijay Verma, PW-14 Ram Niwas Verma, PW-11 ASI Ram Phool and PW-20 SI Vimal Kumar, the entire sequence of events leading to the time of commission of the offence till registration of FIR is suffering from material discrepancies, contradictions, omissions and improvements rendering authenticity of the case of the prosecution and evidence of the said witnesses highly doubtful.
81. The case of the prosecution can be examined on two aspects, pre-registration of FIR and after registration of FIR leading to the arrest of the accused persons and recovery of gold Ex.P1 and Ex.P2.
82. As noted above, the evidence of the prosecution pertaining to the sequence of events before registration of FIR does not appear to be consistent, credible and inspiring.
83. As regards apprehension of the accused Javed Khan and Mohd. Sajid, it can be noted that the complainant, in the complaint Ex.PW6/A, had not given any description of their physical features. He merely stated that four boys boarded TSR and caught hold of him. He stated that the said four boys kept him beating and he became unconscious.
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84. It is relevant to note that on 06.02.2010, PW-4 SI Praveen Kumar had taken the complainant to CRO, PHQ for preparation of sketches of the suspected persons. He stated that two sketches of the accused persons were prepared and he had handed over the said sketches to IO. On the contrary, the complainant, in his evidence, stated that he prepared sketches of all four accused persons. Surprisingly, PW-20 SI Vimal Kumar did not state anything in this regard.
85. If the complainant had noted physical features of the accused persons and he could have got prepared their sketches, there is no explanation as to why he had not stated physical features i.e. complexion, height, built, gait, facial features etc.
86. In the absence of such physical features in the complaint Ex.PW6/A, the identification of the accused Javed Khan and Mohd. Sajid before the Court is not worthy of credit.
87. The incident in question had taken place on 04.02.2010 at about 08.30 p.m. FIR was lodged on 05.02.2010 at 03.50 p.m. PW-20 SI Vimal Kumar had no clue regarding the accused persons. On 10.02.2010 at 05.10 p.m., PW-19 ASI Om Prakash, AATS (North) apprehended the accused Javed Khan in front of Gopal Sweets, Kamla Nagar, Delhi on the basis of secret information. In his disclosure statement Ex.PW19/D, the accused Javed Khan disclosed the involvement of the accused Mohd. Sajid, Kailash, Shanu and Raju. He also disclosed involvement of the accused Arif in the incident. PW-20 SI Vimal Kumar arrested the accused Javed Khan on 11.02.2010. PW-12 Ct. Hemraj, who accompanied PW-20 SI Vimal Kumar, has not supported the case of the prosecution.
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88. The accused Javed Khan refused to join Test Identification Parade (TIP) Ex.PW16/A on the ground that his photographs were taken by IO and shown to the public person. As already noted above, in the absence of any physical feature of the accused Javed Khan in the complaint Ex.PW6/A, the identification of the accused Javed Khan before the Court is not an incriminating circumstance.
89. As noted above, PW-20 SI Vimal Kumar arrested the accused Javed Khan on 11.02.2010 at 03.50 p.m., vide arrest memo Ex.PW12/B. In his disclosure statement Ex.PW12/A, he revealed the name of the other accused persons including the accused Mohd. Sajid and Arif. However, PW-20 SI Vimal Kumar did not make any effort to apprehend the accused Mohd. Sajid and Arif. In his evidence, he merely stated that he made efforts to arrest the remaining accused persons and recover the case property. He has not stated the nature of the efforts made by him to arrest the other accused persons and recover the case property.
90. On 15.02.2010 at 04.10 p.m., PW-19 ASI Om Prakash apprehended the accused Mohd. Sajid in front of Chandgiram Akhara, Outer Ring Road, Delhi, on the basis of secret information, vide arrest memo Ex.PW19/F. He recorded his disclosure statement Ex.PW19/H wherein he disclosed that the accused Arif is his brother and he had sold the robbed gold. On 17.02.2010 at 02.50 p.m., PW-20 SI Vimal Kumar arrested the accused Mohd. Sajid, vide arrest memo Ex.PW12/D. He recorded his disclosure statement Ex.PW12/E wherein he disclosed that robbed gold was handed over to the accused Arif for sale and he had sold the robbed gold and the amount was divided amongst them.
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91. However, PW-20 SI Vimal Kumar did make no effort to arrest the accused Arif and recover the robbed gold. In his evidence, he merely stated that he made efforts to arrest the remaining accused persons. The accused Mohd. Sajid refused to join Test Identification Parade (TIP) on the ground that he was shown to the witness in the police station by concerned staff. As already noted above, in the absence of any physical feature of the accused Mohd. Sajid in the complaint Ex.PW6/A, the identification of the accused Mohd. Sajid before the Court is not an incriminating circumstance.
92. Accordingly, the refusal of the accused Javed Khan and Mohd. Sajid to participate in Test Identification Parade (TIP) and their identification before the Court are not incriminating circumstances.
93. As noted above, the complicity of the accused Arif surfaced in the disclosure statement of the accused Javed Khan Ex.PW19/D recorded on 10.02.2010 and disclosure statement of the accused Mohd. Sajid Ex.PW19/H recorded on 15.02.2010. However, PW-20 SI Vimal Kumar did not make any effort to apprehend the accused Arif and recover the case property. Admittedly, the accused Arif is brother of the accused Mohd. Sajid and they are residing at the same address. PW-21 SI Naseeb Singh stated that the accused Arif is real brother of the accused Mohd. Sajid. He stated that he had not visited house of the accused Mohd. Sajid and Arif prior or after arrest of the accused Arif. He obtained police custody of the accused Mohd. Sajid on 18.02.2010. He avoided to answer that the accused Mohd. Sajid and Arif were residing at 133, Raghubir Nagar, Delhi despite the said address is stated in arrest memos of the accused Mohd. Sajid.
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94. The case of the prosecution is that gold weighing 292 gms. was recovered from the accused Arif. It is further case of the prosecution that gold weighing 498.710 gms. was recovered from the accused Kewal Kishan Kapoor at the instance of the accused Arif.
95. The complainant, in his complaint Ex.PW6/A, has not stated anything regarding presence of any distinguishing mark on the gold handed over to him. In the complaint Ex.PW6/A, he stated that Mr. Vijay Verma, director of the company handed him over pure gold weighing 1 kg. 250 gms. which was in a packet and asked him to take the said packet to Nangloi Office. In his evidence, the complainant stated that Mr. Vijay Verma handed him over a packet containing 1.250 kg. gold at 07.00 p.m. and directed him to handover it in the office at Nangloi. It is, therefore, clear that the complainant categorically stated that Mr. Vijay Verma handed him over pure gold weighing 1 kg. 250 gms. in a packet. He has not stated that he had seen any special feature / mark on the said gold. He has not stated anything regarding the challan of the said gold. A copy of challan is Ex.PW3/A. The copy of challan merely states 'description of the goods' alongwith 'purity' and 'net weight' as 'gold bar', '995' and '1250.500' issued by Vijay Chains Pvt. Ltd. It does not state presence of any special mark on the said gold.
96. The seizure memo Ex.PW21/A pertaining to the gold recovered from the accused Arif states that 'Vijay' was written with a blue ink pen on one side of piece of the gold and second side of the gold had 'CHI' and 'EUR' and 'FONDEUR' engraved thereon.
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97. Seizure memo of the gold recovered from the accused Kewal Kishan Kapoor Ex.PW21/E states that one side of piece of the gold 'PMAP' and 'SUISSE 1 KILO' and 'VC' and 'VIJAY' were written with a blue ink pen and signature in English on the other side thereon.
98. In his cross-examination, the complainant stated, as under:
"There were two pieces of gold which were handed over to me but I do not know weight. Again said. The two pieces were of 1250 gms. I did not see any mark upon the gold pieces. I cannot say whether my company puts any mark or not on gold. I do not know whether the clothes in which the gold was wrapped was also marked or not....."
99. PW-3 Vijay Verma, employer of the complainant deposed, as under:
"On 04.02.2010, I had sent 1250 gm gold (1 Kg and 250 gms) through my worker Surya Dev. I directed Surya Dev to hand over the said gold at my head office. I handed over the said gold to Surya Dev at 7 p.m. and he left my office at about 7:15 p.m. for head office. There were two pieces of gold which were properly wrapped in a cloth pouch and wrote VK Vijay on the parcel. I also handed over the challan of the said gold parcel....."
100. In his cross-examination, PW-3 Vijay Verma deposed, as under:
".....The only identification mark of gold articles of our firm is the mark impression written Vijay. There is no engraved mark of our firm on gold product.....In the accompanied challan, the details shown on the gold as well as the identification mark was not mentioned.....
I can easily differentiate between the pure gold and impure gold. I had identified case property on the basis of mark of my shop and also on the basis of purity before the Court of Ms. Geetanjali, MM."
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101. PW-14 Ram Niwas Verma is the superdar of the case property. In his cross-examination, he deposed, as under:
"We are in the business of gold for the last more than 100 years as my father and forefathers were doing the same business. My son Vijay Verma is also doing the business alongwith me. We can differentiate with the naked eye the gold with the other metal of the same colour. My son is also capable to distinguish the gold with other metal of the same colour as he is also in the same business for the last 12 years. The challan of the gold which was given to Surya Dev was prepared by my son Vijay Verma. My son is also one of the Director in the company. We purchase gold brick of one kg and do the trading of the same. We do not engrave any mark on the gold bricks in which we deal.
Surya Dev had taken two bricks of gold. I cannot say the bricks were imported from which country. As such I cannot say which mark was engraved on those two gold bricks. The gold brick which I had taken on superdari was on two pieces. One was of 498.710 gm and the other was 292 gm. I did not go to identify the gold in the Court....."
102. On examination of the complaint Ex.PW6/A, recovery memos Ex.PW21/A and Ex.PW21/E, it is evident that the complainant did not state that the mark 'VC' and 'Vijay' were written and PW-3 Vijay Verma had signed the pieces of gold at the time of handing them over to him in a packet. PW-3 Vijay Verma, in his evidence, stated that two pieces of gold were properly wrapped in a cloth pouch and he wrote 'VK Vijay' on the parcel. Surprisingly, recovery memo Ex.PW21/A mention that 'Vijay' was written on a piece of gold Ex.P1 with a blue ink pen and recovery memo Ex.PW21/E mention that 'VC' and 'Vijay' alongwith signature were written on a piece of gold Ex.P2. The recovery of the gold was effected on 19.02.2010 and Test Identification Parade (TIP) was conducted on 11.03.2010, vide TIP proceedings Ex.PW17/A. FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 37 of 41
103. The recovery of such huge quantity of the gold from the accused Arif and the accused Kewal Kishan Kapoor at the instance of the accused Arif gives rise to a grave suspicion against the accused Arif and Kewal Kishan Kapoor. However, suspicion howsoever grave cannot substitute the proof beyond reasonable doubt. The distinction between 'may be proved' and 'must be proved' is not a grammatical distinction. It is a legal distinction. The prosecution has to travel this path on the strength of credible, cogent and reliable evidence.
104. The absence of any distinctive mark on two pieces of gold handed over to the complainant, in the complaint Ex.PW6/A and evidence of PW-3 Vijay Verma and presence of mark 'VC' and 'Vijay' alongwith signatures in a blue ink pen on the pieces of gold Ex.P1 and Ex.P2, raised doubt on the authenticity, credibility and purity of Test Identification Parade (TIP). Moreover, inordinate delay of more than one month in holding Test Identification Parade (TIP) also makes the case of the prosecution so far as Test Identification Parade (TIP) of the case property is concerned fragile.
105. Therefore, the charge against the accused Arif under Section 412 IPC is not proved beyond reasonable doubt.
106. So far as the accused Kewal Kishan Kapoor is concerned, he is running a jewelery shop under the name and style of 'M/s. Kewal Jewelers'. He had purchased the gold from the accused Arif on the applicable rates, vide receipt No. 013 dated 05.02.2010 Ex.PW21/G. The accused Arif is a resident of his area. There is no other evidence that the accused Kewal Kishan Kapoor has ever been found involved in sale and purchase of stolen gold.
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107. In the absence of any evidence that the accused Kewal Kishan Kapoor had any reason to believe that the gold was transferred by the commission of dacoity or the accused Arif belonged to a gang of dacoits or the gold was a stolen property or he has ever purchased stolen property, it cannot be said that the accused Kewal Kishan Kapoor is guilty of offence under Section 412 IPC.
108. As regards the case of the accused Kewal Kishan Kapoor that he had purchased gold weighing 498.710 gms. from the accused Arif at Rs. 7,93,946/- on the applicable rates @ Rs. 15,920/- per 10 gms., vide receipt No. 013 dated 05.02.2010 Ex.PW21/G, it can be stated that besides receipt, there is no proof that such huge amount was paid to the accused Arif. He has led no evidence regarding availability of the said amount with him on that date. Sale Tax Returns Ex.DW1/3 reflect that he purchased gold in the sum of Rs. 28,535/- on 06.03.2010. VAT returns Ex.DW1/A for the period from 01.10.2009 to 31.03.2010 and deposit receipt Ex.DW2/A would show that the accused Kewal Kishan Kapoor is not engaged in purchase of such quantity of gold. The accused Kewal Kishan Kapoor did not demonstrate due diligence while purchasing such huge quantity of gold from an unexplained source from a person having no credible background. However, this would not mean that he had any reason to believe or any knowledge that the said gold was a stolen property or the person selling the said gold was belonging to a gang of dacoits or the said gold was transferred through commission of offence of dacoity. Therefore, the prosecution failed to bring home the charge under Section 412 IPC against the accused Kewal Kishan Kapoor.
FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 39 of 41 CONCLUSION:
The accused Javed Khan and Mohd. Sajid are acquitted from offence under Section 395 IPC. The accused Arif and Kewal Kishan Kapoor are acquitted from offence under Digitally signed Section 412 IPC. SANJAY by SANJAY SHARMA SHARMA Date: 2024.07.19 16:39:56 +0530 Announced in the open Court SANJAY SHARMA-II on this 18th July, 2024 DJ (Commercial-11) (Central) Tis Hazari Courts, Delhi FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 40 of 41 State vs. Javed Khan & Ors.
CNR No.: DLCT01-000611-2010 SC No. 28675/2016 FIR No. 33/2010 Under Section 395/412 IPC PS Kotwali 18.07.2024 Present : Mr. Amit Dabas, Ld. Addl. PP for the State (through Video conferencing).
Mr. Anil Kumar Kamboj, Ld. Legal Aid Counsel for the accused Javed Khan and Mohd. Sajid @ Sam. Mr. Rashid Hashmi, Ld. Counsel for the accused Arif.
Mr. Naresh Talwar, Ld. Counsel with the accused Kewal Kishan Kapoor.
The accused Javed Khan is produced from Central Jail No. 11, Mandoli, Delhi (through Video Conferencing).
Vide separate judgment announced in the open Court, the accused Javed Khan and Mohd. Sajid @ Sam are acquitted from offence under Section 395 IPC. The accused Arif and Kewal Kishan Kapoor are acquitted from offence under Section 412 IPC. The accused persons are admitted to bail on furnishing personal bonds in the sum of Rs. 10,000/- each with one surety in the like amount, as required under Section 437A Cr.P.C. As requested, requisite bonds be furnished within one week. File be consigned to Digitally signed record room. SANJAY by SANJAY SHARMA SHARMA Date:
2024.07.19 16:40:06 +0530 Sanjay Sharma-II DJ (Commercial-11) Central, THC, Delhi 18.07.2024 FIR No. 33/2010 State vs. Javed Khan & Ors. Page No. 41 of 41