Delhi District Court
State vs . Harish @ Kalu Etc. Judgement Dt. ... on 1 December, 2018
State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018
IN THE COURT OF ADDITIONAL SESSIONS JUDGE05
(NORTH) ROHINI COURTS, DELHI
CNR No. DLNT010001832011
SC No. 57714/2016
FIR No. 73/2011
PS Shahbad Dairy
U/s 382/395/411/457 IPC
State Vs. 1. Harish @ Kalu
S/o Sh. Bhumi Raj
R/o H. No. 403, Gali No.11, Jewan Park,
Sisar Pur, Delhi.
2. Sahab Singh
S/o Sh. Gulfan Singh
R/o Vill. Dhanouli, PS Bisli, Distt. Badaur, U.P.
3. Mohan @ Monu
S/o Sh. Prem Chand
R/o H. No. 141, Vill. Budh Pur, Delhi.
4. Ravi @ Ram Kishore
S/o Sh. Ram Charan
R/o Jhuggi No. B997, KBlock, Jahangir Puri, Delhi.
5. Sushil Kumar
S/o Sh. Akhilanand Pandey
R/o Gali No.1, Vill. Kushak No.2, near Kadipur, Delhi.
6. Daanvir @ Saran Singh
S/o Sh. Nangli Singh
R/o Vill. Rajai Pur Banjra, PS Udhati, Distt. Badaur, U.P.
SC No. 57714/2016, FIR No. 73/2011 Page 1 of 39
State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018
Date of institution : 12.7.2011
Date of arguments : 12.11.2018
Date of Judgement : 1.12.2018
JUDGEMENT
1. Prosecution case in brief is that on 1.3.2011, Usmaan Ali (PW2) was working in one Metal Trading Company at C105, Prakash Vihar, Shahbad Dairy. This factory belonged to Yunus Malik (PW4). On that date, he was sleeping in the factory in a room situated on the ground floor of the factory/godown and one Mohd. Rafi (PW3) and Jai Prakash (PW1) were sleeping in a room situated on the first floor of the factory. At about 3:00 am all the accused persons entered in his room. Accused Ravi @ Ram Kishore (A4) and accused Daanvir @ Saran Singh (A6) overpowered Usmaan Ali, took his search and his mobile phone make Samsung (which actually belongs to Mohd. Rafi) was taken by the them. The other accused persons had gone to first floor, where Harish (A1) & Sushil (A5) had overpowered Mohd. Rafiq and Jai Prakash. They also searched the almirah and mobile phones of Nokia and LG lying in the almirah were taken by them. Accused persons brought a vehicle and started loading aluminum, copper, brass of approximately four to five tonnes and after loading the same in the truck, the bolted the door from outside and left. Somehow, Usmaan Ali broke the door of his room with the help of iron rod. He SC No. 57714/2016, FIR No. 73/2011 Page 2 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 informed his employer Yunus. On the statement Ex.PW2/A of Usmaan Ali, FIR was lodged and crime team arrived at the spot.
2. SI Deepak Malik (PW8), Incharge of Crime Team inspected the site and photographer Ct. Hansraj (PW6) took the photographs. Incharge of Crime Team submitted his report already Ex.PW8/A to him. ASI Anil Kumar (PW21) recorded the statement of Mohd. Usman (Ex.PW2/A). He made an endorsement on the same and prepared rukka Ex.PW21/A and handed over the same to Ct. Satpal (PW7) for getting FIR registered at police station Shahbad Dairy. At the spot, one lock in cut position was lying. Same was sealed by him in a pullanda with the seal of AKT and was seized vide seizure memo already Ex.PW7/B. ASI Anil Kumar inspected the site and prepared the site plan Ex.PW21/B at the instance of Usman.
On 14.03.2011 Inspector Satya Prakash (PW20), who was posted at SIT Crime Branch, Rohini received a secret information and he formed a raiding party consisting of ASI Ramesh, SI Baljeet (PW11), HC Pradeep (PW12), HC Jogender Singh (PW14), Ct. Sunil (PW15), Ct. Amit Kumar (PW18). The raiding party reached near a shop of accused Sahab Singh Kabari. They found that all the accused persons were conspiring to commit robbery/dacoity inside the shop of godown. They apprehended all the accused persons. These accused persons made disclosure statements (Ex.PW10/A, Ex.PW12/A, Ex.PW14/A, Ex.PW15/A, Ex.PW11/A & SC No. 57714/2016, FIR No. 73/2011 Page 3 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 Ex.PW20/A) about having committed dacoity in the present case. At the spot one TATA Tempo No. DL1LK8922 was standing, which was seized by Inspector Satya Prakash vide seizure memo Ex.PW15/B. At the instance of the accused persons, eight bundles of aluminum copper wire were recovered from the shop of accused Sahab Singh vide recovery memo Ex.PW20/B. On weighing the aluminum copper wire was found to be 280 kg. One mobile phone make Samsung was recovered from the possession of accused Sushil Kumar, which was seized vide seizure memo Ex.PW10/D. He informed police station Shahbad Dairy about the arrest of accused persons and recovery of case property.
Thus on 14.03.2011, ASI Anil Kumar received information vide DD No. 26B (Ex.PW21/C) regarding arrest of accused persons Sahab Singh, Ravi @ Ram Kishore, Mohan, Sushil Kumar @ Sonu, Danvir @ Swaran Singh, Harish @ Kallu, in case FIR No. 67/11, SIT Crime Branch and their disclosure about the involvement in the present case.
On 16.03.2011, ASI Anil Kumar went to the office of SIT Crime Branch at Sector 18, Rohini and collected the photocopies of disclosure statement of these accused persons and photocopies of seizure memos of mobile phone make Samsung, Aluminum and Tata Tempo No. DL1LK 8922. He recorded the statement of police officials of SIT Crime Branch namely HC Baljeet Singh, Ct. Amit Kumar, Ct. Sunil Kumar, Ct. Jagbir Singh, HC SC No. 57714/2016, FIR No. 73/2011 Page 4 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 Joginder Singh and Inspector Satya Prakash U/s 161 Cr.P.C. ASI Anil Kumar moved an application (carbon copy Ex.PW21/D) before the concerned court for the production warrant of above said accused persons on 17.03.2011.
On 21.03.2011 Sahab Singh, Ravi @ Ram Kishore, Mohan, Sushil Kumar @ Sonu, Danvir @ Swaran Singh, Harish @ Kallu were produced before the court. ASI Anil Kumar moved an application for interrogation and arrest of accused persons which is Ex.PW21/E. All the accused persons were interrogated and arrested by ASI Anil Kumar vide arrest memos already Ex.PW17/A to F and their disclosure statements were recorded by him vide memos already Ex.PW17/G to H & Ex.PW17/J to M. All the accused persons were remanded to JC.
On 23.03.2011, the case property was collected from the maalkhana of PS Crime Branch vide RC No. 130/21/11 and was deposited in the maalkhana of PS Shahbad Dairy through Ct. Raj Kumar. The photocopy of RC is exhibited as Ex.PW21/F. On 23.03.2011, ASI Anil Kumar moved an application Ex.PW21/G before Ld. Metropolitan Magsitrate for Test Identification of mobile phone and on 25.03.2011, mobile phone was correctly identified by Usman vide proceedings Ex.PW2/C. He moved application Ex.PW21/H for collecting the copy of TIP proceedings.
SC No. 57714/2016, FIR No. 73/2011 Page 5 of 39State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 On 23.03.2011, ASI Anil Kumar moved an application for the production warrant of accused Sahab Singh and he was produced on 26.03.2011 before the concerned MM. ASI Anil Kumar moved application Ex.PW21/I for one day police custody remand of the accused and same was allowed. Accused Sahab Singh was got medically examined as MB Hospital. ASI Anil Kumar along with accused Sahab Singh and Ct. Ranvir Singh went to Kapashera for the search of accused Salim @ Babloo (a non arrested accused) but he could not be found. They returned to the police station after the medical examination of accused Sahab Singh and he was put in the lock up. ASI Anil Kumar recorded statement of Ct. Ranvir U/s 161 Cr.P.C. Accused Sahab Singh was produced before the court and he remanded for judicial custody. ASI Anil Kumar moved an application for NBW of accused Salim @ Babloo.
On 25.03.2011, ASI Anil Kumar gave notice U/s 133 MV Act already Ex.PW5/A to Sh. Hari Om Sharma registered owner of Tata Tempo No. DL1LK 8922 and he gave his reply on the same at point A to A and stated that Harish @ Kalu son of Sh. Bhumi Raj was driving the above said tempo on 01.03.2011.
ASI Anil Kumar was transferred, so he handed over the case file to MHCM.
SC No. 57714/2016, FIR No. 73/2011 Page 6 of 39State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018
3. On 03.05.2011, SI Arun Kumar (PW19) was posted at PS S. B. Dairy. On that day the investigation of the present case was assigned to him, which was earlier carried out by ASI Anil, who had been transferred from the police station. SI Arun Kumar made efforts for the search of non arrested accused Saleem @ Babblo and made enquiries from the Junk Dealer Shops in the are of Kapashera, Delhi, whose NBWs had already been got issued by ASI Anil. There was no complete address of accused Saleem @ Babblo and as such, no proceedings could be carried out against him for want of his address. SI Arun Kumar got extended the judicial remand of other coaccused persons namely Ravi @ Ram Kishore, Sushil Kumar, Sahib Singh, Daanvir, Mohan @ Monu and Harish @ Kalu. SI Arun Kumar added Section 395 IPC in the present case. SI Arun Kumar made efforts for the search of accused Saleem @ Babblo and for the remaining case property but without success. After completion of the investigation, charge sheet was prepared against the accused persons and send the same for trial.
4. Case was committed to Sessions Court by Ld. Metropolitan Magistrate. After hearing arguments, a charge under Section 382/457/395/34 IPC was framed all the accused persons. An alternative charge under Section 411 IPC was framed against accused Sahab Singh and Sushil Kumar separately. Accused persons pleaded not guilty and claimed trial.
SC No. 57714/2016, FIR No. 73/2011 Page 7 of 39State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018
5. In order to prove its case, prosecution examined 21 witness in all.
PW1 Jai Prakash testified that he along with Mohd. Usmaan were working at C105, Prakash Vihar, Shahbad, Daulat Pur in a factory of metal trading and they used to sleep in godown. He was sleeping at first floor of balcony with Rafiq. At 3:00 am, three persons entered in his room and they overpowered them. They tied them and came down on ground floor. The offenders cut the lock of room and loaded brass, scrap and bundle of aluminum in a truck and took it away. PW1 identified accused Harish (A1) and Sushil (A5), who had tied and threatened him.
PW2 Usmaan Ali testified that he was sleeping in the room situated at the ground floor of the factory. All the accused persons entered his room. Accused Ravi (A4) and Daanvir (A6) caught hold of him. Accused Ravi (A4) told that if he raised an alarm, they would kill him. Accused Ravi took his search as well as of his room. He was having one mobile phone make Samsung in his pocket, which was taken out by one of the accused. Other phones make Nokia and LG were lying in the almirah. Same were also taken by the accused persons. Accused persons had brought some vehicle in which they loaded aluminum and brass of about 4 to 5 tonnes. They bolted the door of room of PW2 from outside. Some of the accused persons had gone to first floor and had overpowered Rafiq and SC No. 57714/2016, FIR No. 73/2011 Page 8 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 Kaka. Therefore, they could not come down. After loading the truck, the accused persons came in his room. PW2 has further testified that during investigation, he had handed over the cash memo of the mobile phone, which was purchased by Rafiq. He testified that during judicial TIP, he identified his phone. In the court, PW2 also identified his Samsung mobile phone Ex.P1. He also testified that the stolen aluminum, brass and copper goods as Ex.P2, which had been stolen.
PW3 Mohd. Rafi was sleeping in the room on the first floor of Yunus Malik Metal Trading Company along with another employee Jai Prakash. He testified that at around 3:00 am, two persons over powered both of them and threatened them not to make noise. He testified that another employee Usman was sleeping on ground floor. Two or three persons along with Kattas also empowered him. The offenders entered into the godown by scaling the boundary wall. The broke open the locks of the room and the main gate. They brought inside one TATA 407 and loaded aluminum wire bundles in it and left. Thereafter, they brought inside one Champion vehicle and loaded brass and copper scrap in it and left. While leaving, they threatened not to raise any alarm, otherwise they would shoot them. He testified that one of the offenders took away his mobile phone model Samsung. They had also looted the cash from Usman. He proved the bill Ex.PX1 of his mobile. He testified that although he had purchased the SC No. 57714/2016, FIR No. 73/2011 Page 9 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 said mobile phone Ex.P1 but the same was being used by Usman. He also identified the phone Ex.P1 as well as the stolen goods namely aluminum (Ex.P2). He identified all the accused persons as those, who had entered the factory in the night.
PW4 Mohd. Yunus testified that he is a scrap dealer and working under the name & style of Mohd. Yunus Malik Trading Company from Shahbad Dairy. He testified that his employee Mohd. Yunus, Mohd. Rafiq and Jai Prakash used to say in his godown. On 28.7.2011 he received a call from Usman at about 5:30 am that some persons had entered the godown and after beating and tying them, they had committed (dacoity?) in the godown. He testified that he immediately reached the godown and infomed the police. He identified the aluminum and copper wires as Ex.P2.
PW5 Hari Om Sharma testified that he was the owner of TATA ACE No. DL1LK8922 and had given the same to Chanderpal, who used to drive the said vehicle since October 2010. The said Tempo broke down in December 2010 and he sent it for repairs in Sanjay Gandhi Transport Nagar in the first week of January. The aforesaid Tempo was remained parked at garage for repairing till March 2011. In March 2011, he went to Kanpur. His driver Chanderpal telephonically informed him that Crime Branch officials had lifted the tempo from the garage and that he was with the vehicle at Sanjay Gandhi Transport Nagar, when Crime Brnach officials SC No. 57714/2016, FIR No. 73/2011 Page 10 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 came to him along with Harish @ Kalu, who was his Bhanja. Chanderpal also informed him that Crime Branch officials towed away his vehicle. PW5 further testified that police served a notice under Section 130 M. V. Act Ex.PW5/A and he informed the police that driver of his tempo was Chanderpal. He identified accused Harish @ Kalu and testified that he is Bhanja of his driver Chanderpal.
PW6 Ct. Hansraj was part of Crime Team and took the photographs of the scene of crime, which are Ex.PW6/A. Negatives are Ex.PW6/A1.
PW7 Ct. Satpal Yadav accompanied ASI Anil Tiwari to the place of incident. He testified that statement of Usman was recorded by Investigating Officer and after writing a rukka, same was handed over to him. He went to police station, got FIR registered and returned to the spot along with copy of FIR etc.. One lock was taken in possession vide seizure memo Ex.PW7/B. PW8 SI Deepak Malik was Incharge of Mobile Crime Team. He inspected the place of occurrence and prepared his report, which is Ex.PW8/A. PW9 HC Mahipal Singh recorded FIR Ex.PW9/A. PW10 Ct. Jagvir Singh testified that on 14.3.2011 he was posted in SIT Crime Branch, Sector18, Rohini and he joined a raiding party SC No. 57714/2016, FIR No. 73/2011 Page 11 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 with Inspector Satya Prakash. He testified that all the accused persons of this case were arrested in case FIR No. 67/2011, under Section 399/402 IPC and Section 25 Arms Act, PS Crime Branch. PW10 testified that he had apprehended accused Sushil Kumar, who made disclosure statement Ex.PW10/A. A mobile phone make Samsung was recovered from accused Sushil Kumar (A5) and the same was taken in possession under Section 102 CrPC vide seizure memo Ex.PW10/B. PW11 SI Baljeet Singh testified that on 13.3.2011, he was posted in SIT Crime Branch, Rohini. He along with ASI Ramesh and other police officials had apprehended the accused persons. Subsequently, Inspector Satya Prakash had arrested all these accused persons in case FIR No. 67/2011, PS Crime Branch. Inspector Satya Prakash recorded disclosure statement of all the accused persons including accused Ravi. PW11 testified that he had signed the disclosure statement of accused Ravi, which is Ex.PW11/A. PW12 HC Pradeep was also member of SIT Crime Branch. He witnessed the disclosure statement of accused Daanvir, which is Ex.PW12/A. PW13 HC Raj Kumar testified that on 23.3.2011, he was posted at PS Shahbad Dairy as Constable. On the instructions of Investigating Officer, he collected the case property from PS Crime Branch and deposited SC No. 57714/2016, FIR No. 73/2011 Page 12 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 the same in the Malkhana of PS Shahbad Dairy vide RC No. 130/91. The case property consisted of Tempo No. DL1LK3922 and one pulanda containing mobile phone sealed with the seal of SBV and three bundles containing aluminum tiles.
PW14 HC Joginder Singh was also part of SIT Crime Branch. He joined raiding team formed by Inspector Satya Prakash. The entire team entered inside godown/shop of Kabari and apprehended all the accused persons. PW14 apprehended accused Monu (A3). One loaded Katta and one live cartridge were recovered from his possession. He witnessed the disclosure statement of A3, which is Ex.PW14/1.
PW15 Ct. Sushil Kumar is also part of SIT Crime Branch and was member of the raiding party, which apprehended the accused persons. He specifically apprehended accused Harish @ Kalu (A1). He testified that he was driver of TATA ACE Tempo No. DL1LK8922 used in the present offence. Accused Harish @ Kalu (A1) made disclosure statement regarding this offence, which is Ex.PW15/A and PW15 witnessed it. The aforesaid Tempo was also seized in his presence vide seizure memo Ex.PW15/B. He identified the photographs Ex.P1 to P6 of the aforesaid Tempo.
PW16 Ct. Ranbir Singh testified that on 26.3.2011 he joined investigation in this case with SI Anil Kumar, who produced accused Sahab Singh (A2) in the court of Ld. Metropolitan Magistrate and his one day SC No. 57714/2016, FIR No. 73/2011 Page 13 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 police remand was obtained. During police remand, this accused led the police party to in front of Reboke Show Room in a lane to the shop of Babloo Kabari (a non arrested accused). Accordingly, a pointing out memo Ex.PW16/A was prepared.
PW17 Ct. Gulzari Lal testified that on 21.3.2011 he joined investigation with ASI Anil Kumar and reached the court of Sh. Deepak Wason, Ld. MM, where all the accused persons were produced from lock up. He testified that in spite of asking them to cover their case before production in the court, they refused to do the same. After taking permission from the court, all the accused persons were arrested in this case vide arrested memo Ex.PW17/A to Ex.PW17/F. Their disclosure statements, which are Ex.PW17/G, Ex.PW17/H, Ex.PW17/J, Ex.PW17/K, Ex.PW17/L & Ex.PW17/M were recorded.
PW18 Ct. Amit Kumar posted at Crime Branch testified that on 14.3.2011, he along with Inspector Satya Prakash arrested the accused persons in case FIR No. 67/2011, PS Crime Branch. He witnessed the disclosure statement of accused Sahab Singh, which is Ex.PW20/A. Pursuant to the said disclosure statement, accused Sahab Singh got recovered eight big bundles of old aluminum wires from his junk dealer shop situated at A15, Main Road, Shahbad Dairy. Total rate of aforesaid aluminum wire was 20 kg and the same was seized vide Ex.PW20/B. TATA SC No. 57714/2016, FIR No. 73/2011 Page 14 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 Tempo no. DL1lk8922 was seized from the spot at the time of apprehension of the accused persons. PW18 identified eight bundles of aluminum and copper wire as detected in photographs Ex.PW1/A to Ex.PW1/C. He also identified the TATA Tempo depicted in the photographs Ex.P1 to P6.
PW19 SI Arun Kumar testified that ASI Anil, the earlier IO, was transferred from the police station. On 3.5.2011 the investigation was assigned to him. He made efforts to arrest accused Salim @ Babloo but he could not be arrested for want of his address. He got extended the judicial remand of the accused persons and added Section 395 IPC. After completion of the investigation, the charge sheet was filed in the court of Ld. Metropolitan Magistrate.
PW20 Inspector Satya Prakash (Retd.) testified that on 14.3.2011 he was posted a STI Crime Branch, Rohini as Inspector. On that day, he received information in his office to reach main Bawana Raod, Shahbad Dairy for investigation of case FIR No. 67/2011. There ASI Ramesh along with police staff met him and produced all the accused persons along with the case property and seizure memos. PW20 further testified that he recorded their disclosure statements and arrested them. In FIR No. 67/2011, PS Crime Branch, one TATA Tempo No. DL1LK8922 was standing at the spot, which was sealed by him vide seizure memo SC No. 57714/2016, FIR No. 73/2011 Page 15 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 Ex.PW15/B. On pointing of all the six persons, aluminum copper wire in eight bundles weighing 280 kg were recovered from the shop of accused Sahab Singh vide seizure memo Ex.PW20/B. Accused Sushil Kumar produced a mobile phone, which was enclosed in a pulanda and sealed with the seal of SKD and was seized vide seizure memo Ex.PW10/D. He informed police station Shahbad Dairy regarding the arrest and recovery and handed over the photo copies of seizure memos and disclosure statements etc. to Investigating Officer. He also identified the eight bundles of aluminum and copper wire collective Ex.P1. Photographs of the same were taken on record, which are Ex.P1A to Ex.P1C. PW21 Retd. ASI Anil Kumar testified as under :
"On 01.03.11, I was posted at PS Shahbad Dairy. On that day, I was on emergency duty from 8.00 p.m. to 8. a.m. On that day, at about 4.50 a.m., an information was received vide DD No. 4A regarding theft at godown no. C- 105, Prakash Vihar, Shahbad Daulatpur and on the receipt of the same, I along with Ct. Satpal reached at the spot. At the spot, Mohd. Rafiq, Jai Prakash, Usman met me. I informed the crime team on telephone. Crime Team arrived at the spot. SI Deepak Malik, Incharge of Crime Team inspected the site and photographer Ct. Hansraj took the photographs. Incharge of Crime Team submitted his report already Ex.PW8/A to me. I recorded the statement of Mohd. Usman which is already Ex.PW2/A. I made an endorsement on the same at point X and prepared rukka Ex.PW21/A and handed over the same to Ct. Satpal for getting FIR registered at police station Shahbad Dairy. At the spot, one lock in cut position was lying. Same was SC No. 57714/2016, FIR No. 73/2011 Page 16 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 sealed by me in a pullanda with the seal of AKT and seized vide seizure memo already Ex.PW7/B which bears my signature at point X. I inspected the site and prepared the site plan Ex.PW21/B at the instance of Usman which bears my signature at point X. I recorded the statement of witnesses U/s 161 Cr.P.C., deposited the case property in maalkhana.
On 14.03.2011, I received information vide DD No. 26B regarding arrest of accused persons Sahab Singh, Ravi @ Ram Kishore, Mohan, Sushil Kumar @ Sonu, Danvir @ Swaran Singh, Harish @ Kallu, in case FIR No. 67/11, SIT Crime Branch and their disclosure about the involvement in the present case. Attested copy of DD No.26B is Ex.PW21/C. On 16.03.2011, I went to the office of SIT Crime Branch at Sector 18, Rohini and collected the photocopies of disclosure statement of above said accused persons and photocopies of seizure memos of mobile phone make Samsung, Aluminum and Tata Tempo No. DL1LK 8922. I recorded the statement of police officials of SIT Crime Branch namely HC Baljeet Singh, Ct. Amit Kumar, Ct. Sunil Kumar, Ct. Jagbir Singh, HC Joginder Singh and Inspector Satya Prakash U/s 161 Cr.P.C. I moved an application before the concerned court for the production warrant of above said accused persons, on 17.03.2011. The carbon copy of the said application is exhibited as Ex.PW21/D which bears my signature at point X. On 21.03.2011 Sahab Singh, Ravi @ Ram Kishore, Mohan, Sushil Kumar @ Sonu, Danvir @ Swaran Singh, Harish @ Kallu, all present in the court today (correctly identified) were produced before the court. I moved an application for interrogation and arrest of accused persons which is Ex.PW21/E bearing my signature at point X. All the accused persons were interrogated and arrested by me vide arrest memos already Ex.PW17/A to F and their disclosure statements were recorded by me vide memos already Ex.PW17/G to H & Ex.PW17/J to M. All the memos bears my signature at point X. All the accused persons were remanded to JC.SC No. 57714/2016, FIR No. 73/2011 Page 17 of 39
State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 On 23.03.2011, the case property was collected from the maalkhana of PS Crime Branch vide RC No. 130/21/11 and was deposited in the maalkhana of PS Shahbad Dairy through Ct. Raj Kumar. The photocopy of RC is exhibited as Ex.PW21/F. On 23.03.2011, I moved an application Ex.PW21/G before Ld.MM for TIP of mobile phone and on 25.03.2011, mobile phone was correctly identified by Usman vide TIP proceedings already Ex.PW2/C. I moved application Ex.PW21/H for collecting the copy of TIP proceedings. On 23.03.2011, I moved an application for the production warrant of accused Sahab Singh and he was produced on 26.03.2011 before the concerned MM and I moved application Ex.PW21/I for one day police custody of the accused and same was allowed. Accused Sahab Singh was got medically examined as MB Hospital. I along with accused Sahab Singh and Ct. Ranvir Singh went to Kapashera for the search of accused Salim @ Babloo but he could not be found. We returned to the police station after the medical examination of accused Sahab Singh and he was put in the lock up. I recorded statement of Ct. Ranvir U/s 161 Cr.P.C. Accused Sahab Singh was produced before the court and he remanded for judicial custody. I moved an application for NBW of accused Salim @ Babloo.
On 25.03.2011, I gave notice U/.s 133 MV Act already Ex.PW5/A to Sh.Hari Om Sharma registered owner of Tata Tempo No. DL1LK 8922 and he gave his reply on the same at point A to A and stated that Harish @ Kalu son of Sh.Bhumi Raj was driving the above said tempo on 01.03.2011.
I was transferred, so I handed over the case file to MHCM.
I can identify the case property if shown to me. (At this stage, MHCM has produced one sealed pullanda sealed with the seal of court, same is opened and one broken lock is taken out and shown to the witness).
I identify the lock which was recovered from the spot. Lock is already Ex.P3.SC No. 57714/2016, FIR No. 73/2011 Page 18 of 39
State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 XXXXX by Sh.R.P. Singh, ld. Counsel for accused Sahab Singh (A-2), Danvir (A-6) and Harish (A-1) and by Sh. Jitender Kumar Kalson, ld. counsel for accused Mohan (A-3), Sushil (A-5) and Amicus Curiae for accused Ravi(A-4).
I reached at the sopt at about 5.00 a.m. There were some factories near the spot. Some public persons were also present at the spot. The lock of the main gate was broken opened when I reached the spot. The handle lock of the almirah inside the godown was also broken opened. The photographs of the spot were taken by the crime team photographer and he had taken the photographs of the almirah and the main gate of the godown. I do not remember the number of rooms in godown. There was only one main gate in the factory. I recorded statement of Jai Prakash and Mohd. Rafiq at the spot U/s 161 Cr.P.C. I did not obtain the signature of Jai Prakash and Mohd. Rafiq as witness on the seizure memo of lock. I did not collect any documentary proof regarding employment of Rafiq and Jai Prakash as employees of the above said godown. I did not seized any duty roaster from the said godown. I do not remember as to how many persons were working in the above said godown/ spot. Accused persons were directed to keep their faces muffled and I moved an application for the TIP of the accused persons but they themselves refused for their TIP. It is wrong to suggest that accused persons were taken to the factory and shown to the witnesses before sending them to JC. Usman, Rafiq and Jai Prakash were not got medically examined as they did not make any request for getting themselves medically examined.
The lock was seized after registration of FIR. Rukka was sent at about 7.50 a.m. Seal after use was handed over to Ct. Satpal. Ct. Satpal returned to the spot after the registration of FIR at about 9.00 a.m. It is wrong to suggest that accused persons have been falsely implicated in the present case or that I had not fairly investigated the present case. It is wrong to suggest that I have not made any investigation regarding 10-12 SC No. 57714/2016, FIR No. 73/2011 Page 19 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 persons who were stated to be involved in the present case as stated by the complainant. It is wrong to suggest that I am deposing falsely."
6. In statement under Section 313 CrPC, the accused persons denied the allegations. They also did not prefer to lead any evidence in defence.
7. Ld. Defence Counsels have submitted that the identification of the accused persons by PW1 Jai Prakash, PW2 Usman and PW3 Mohd. Rafiq cannot be relied upon. It is argued that the incident is of night time. Therefore, their identification in the court of such a long time is highly doubtful.
8. Ld. Defence Counsels have further argued that identification of the case property by the PW1, PW2, PW3 and PW4 produced in the court as the same, which was stolen, is also highly doubtful. It is submitted that they have not testified in the court as to how they were able to identify the aluminum and brass wires. It is further submitted that similar aluminum and brass wires are very much available in the open market.
9. Ld. defence counsels have argued that there are serious contradictions in the testimonies of the witnesses. Ld. Defence counsels have submitted the contradictions as under:
1) Regarding Chowkidar in the factory:
i. PW1 (Jai Prakash) : He has nowhere stated that he was the chowkidar in the factory or not.
SC No. 57714/2016, FIR No. 73/2011 Page 20 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 ii. PW2 (Mohd. Usman): He stated that Jai Prakash (PW1) was the main chowkidar of he
godown/factory. He does not tell whether chowkidar was performing his duty or not. He also stated that chowkidar was sleeping in other room.
iii. PW3 (Mohd. Rafiq) - He stated that Jai Prakash (PW1) was employed as chowkidar in the company for day night & that he (PW3) used to remain 24 hours in the factory.
iv. PW4 (Mohd. Yunus) - He stated that he had not deputed any separate chowkidar in his factory and the employees who used to stay overnight, they looked after the factory/godown.
v. PW21 - (I.O.) I did not collect any documentary proof regarding employment.
2. Regarding No. of employees in factory/godown:
PW2 (Mohd. Usman): 1015 workers used to work in the factory.
PW3 (Mohd. Rafiq): Normally there use to be 15/16 labours.
PW4 (Mohd. Yunus): He had 10 to 12 employees with me.
3. Regarding rooms in factory/godown:
PW2 : There are three rooms and a big godown.
PW3 :There was four rooms in the factory and these rooms were used as godown.
PW4 :One room was on 1st Floor and five rooms were on the ground floor.
PW6 : The factory was single storied.
PW8 :There were three rooms in the plot which were being used as godown.
PW21: H did not remember the no. of rooms in godown.
But as per site plan prepared by the I.O. only three rooms are shown.
4. Regarding proof of employment of the SC No. 57714/2016, FIR No. 73/2011 Page 21 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 employees:
PW2 :He did not have any written proof to show that he was employed with Yunus.
He never used to sign any register in lieu of the salary.
No one used to take the attendance in the factory.
PW3 :I used to get Rs. 6000/ salary exclusive food.
I have no documents to show that I was employed with Yunus.
PW4 :Usman is employed with me as driver and worker. He is my distant relative.
I maintain the record of my employees.
I had supplied the bills of stolen scrap to I.O.
I used to pay salary in cash against signature.
PW21 (I.O.)I did not collect any documentary proof regarding employment of Rafiq and Jai Prakash as employees of above said godown.
I did not seize any duty roaster from the said godown.
5. Regarding no. of mobiles stolen:
PW1 He did not state in his testimony that any mobile was stolen from the godown/factory or not.
PW2 Three mobiles were taken by the accused persons (one from my pocket and two from the almirah).
PW3 One person taken away my mobile phone who entered the room and I came to know that two other mobiles of employees were taken by those persons. One of them belongs to Jai Prakash.
PW4 Only two mobiles were stolen.
My three employees PW1, PW2 and PW3 were having separate mobiles.
Why all the mobiles were kept in almirah under lock and not used by the employees including SC No. 57714/2016, FIR No. 73/2011 Page 22 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 chowkidar.
6. Regarding case properties:
PW1 Only eight bundles of aluminum were shown were shown and identified as Ex.P1 (Colly).
No other case properties i.e. mobiles, broken lock and Tata Tempo shown to this witness for identification.
PW2 He was shown Samsung phone and identified it as Ex.P1.
Goods i.e. aluminum, brass and cooper wire shown to this witness and identified as Ex.P2 (Colly).
Broken lock shown and identified as Ex.P3. In crossexamination, this witness could not tell the exact weight of the copper and scrap shown to him but testified that Tata407 in which goods brought was almost full.
PW3 Mobile Phones shown and identified as Ex.P1.
Broken lock shown and identified as Ex.P3. Goods i.e. aluminum shown and identified as Ex.P2.
PW4 Only aluminum and copper wires shown and identified.
PW20Case property i.e. 8 bundles of aluminum and copper wires are produced collectively and identified as Ex.P1.
In crossexamination, he states that aluminum and copper wires weight which was around 280 kg. He could not tell the weight separately.
But as per seizure memo of aluminum Ex.PW20/B only aluminum wire seized in FIR No. 67/11, which was about 280 kg. Then where from copper wire and scrap has been recovered and shown to the witness.
It shows clearly that case properties is planted upon the accused persons and also tempered because it was not sealed.
The Tata Tempo which shown as involved in the SC No. 57714/2016, FIR No. 73/2011 Page 23 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 case as per prosecution is not at all shown to any of the meployees of the factory (PW1, PW2, PW3) for identification.
7. Regarding broken locks:
PW1After tying us and after cutting the lock of room, they loaded brass and scrap and bundles of aluminum and taken away in a truck.
In crossexamination I have not seen the vehicle. Vol. I was tied.
PW2 The lock of main gate was broken and the lock of room in which goods were lying was also broken.
I do not know how many locks were taken into custody by the police.
PW3 They broke open the locks of rooms and the main gate. When two locks were broken, then why only one broken lock was sealed by the IO and not other broken lock.
8. Regarding site plan.
PW2 The factory has only one main gate.
Site plan was prepared at my instance.
PW3 There were two gates in the company.
PW21There was only one main gate in the factory.
But as per site plan Ex.PW21/B, two main gates are shown in the site plan.
9. Regarding information to the owner (PW4) regarding theft.
PW1 He has not stated anything about who informed the owner regarding theft.
PW2 I came out from the room by broken the door with the help of the iron rod left by the persons and informed my employer Yunus through neighbourers phone.
PW3 Usman went to the house of Mohd. Yunus and informed him about the incident.
PW4 I received a call from Usman at about 5.30 SC No. 57714/2016, FIR No. 73/2011 Page 24 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 am about incident.
10. Regarding identification of the accused persons:
PW2 All the accused persons present in the court today entered into my room.
In cross:At that time I was sleeping, I can not tell how many boys entered my room.
I cannot tell the age and other description of other persons who entered my room as I could not see them.
It is correct that police had brought two accused to the factory in my presence.
I cannot identify two accused persons who were brought by the police in the factory.
PW3 The aforesaid persons entered into the complex of company/godown by scaling the boundary wall.
In cross Light of our room was closed.
When three persons entered into our room, we were sleep.
I had not seen the accused persons scaling the boundary wall.
11. Regarding arrest information of the accused in other case:
As per statement of the witness, PW21 (IO), he received information on dated 14.03.2011 about the arrest of accused persons in case FIR No. 67/11 by SIT Crime Branch and their disclosure statement bout this present case.
But as per Ex.PW21/C DD No. 26B dated 14.03.2011, all the accused persons have given their disclosure statement in case FIR No. 55/11 U/s 399/402 IPC, PS Crime Branch, about their involvement in other FIR No. 5/11, 68/11, 73/11 and 9/11, PS Shahbad Dairy.
It is submitted that a per Ex.PW21/C, the accused persons were not arrested in FIR No. 67/11, nor they SC No. 57714/2016, FIR No. 73/2011 Page 25 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 disclosed their involvement about FIR no. 67/11, then how they were arrested n FIR No. 67/11 and they were tried also in FIR No. 67/11 and acquitted and not tried in FIR No. 55/11 at all.
12. Regarding registration of FIR:
As per DD No. 4A dated 01.03.2011 Ex.PW7/A, Mohd. Yunus informed through telephone at about 4.45 am regarding theft in his godown.
PW4 He received a call at 5.30 am from Usman. He reached godown within five minutes, police reached at spot at 5.45 am. Police recorded his statement at about 5.45/6.00 am.
PW7 (Ct. Satpal) Received DD at 4.45 am, went to the spot alongwith IO on foot and reached at 5.00 am. IO handed over rukka to me at 5.15 am. I went to PS on foot for registration of FIR and remained there for 15 minutes and reached at spot after 15 minutes.
Crime team did not reach at spot in my presence. We remained at spot about one hour.
PW9 D.O. Ct. Satpal brought rukka at about 8.10 am. It took 3140 minutes for registration of FIR.
PW21 Rukka was sent about 7.50 am through Ct.
Satpal, he came back at spot at about 9.00 am.
13. Regarding seizure of the Tata tempo:
PW5 (Hariom Sharma) as per his statement, he was the owner of the Tata Tempo DL1LK8922. The Tempo was driven by Chander Pal and it was broken down in December, 2010 and sent for repairing at Sanjay Gandhi Transport Nagar and remained there for repairing till March, 2011. The said tempo was lifted by the Crime Branch officials from the garage and involved in this case.
But as per other witnesses in FIR No. 67/11, the said tempo was seized in front of the shop of accused Sahib Singh.
As per the statement of PW1, PW2 and PW3, accused persons loaded the aluminum, copper and scrap SC No. 57714/2016, FIR No. 73/2011 Page 26 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 in a truck, Tata407 and champion but the vehicle Tata tempo shown as case property in this case by IO, has not been shown at all to these witnesses for identification.
IO has not sealed the another broken lock and the iron road left by the accused persons at factory, both these articles should have been seized and should have made the case property by the IO but IO did not seized these articles.
In view of the aforesaid contradictions, it is submitted by Ld. Defence Counsel that the testimonies of the eye witnesses are highly doubtful. It is further argued by Ld. Defence Counsel that it is highly doubtful as to whether the eye witnesses were employees in the said factory or not. Non production of any employment document, as per Ld. Defence Counsels, also makes the presence of the witnesses at the spot highly doubtful.
10. I have perused the evidence of witnesses. I am of the opinion that the contradictions, as cited above, are very minor contradictions and are result of lapse of time. The same does not shake the credibility of the witnesses so far as their presence at the spot and their narration of the incident is concerned. If the Investigating Officer has not collected the documents of employment of PW1, PW2 and PW3 and if there are a few contradictions regarding the rooms in the factory, it cannot be presumed that they were not present in the factory at the time of incident. Their testimonies are worthy of credence regarding the incident. So far as the case property i.e. aluminum wire is concerned, at some place they have referred to it as aluminum copper wire. But this difference is only on SC No. 57714/2016, FIR No. 73/2011 Page 27 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 account of some lapse of memory. It is true that PW1 has identified these aluminum wires as Ex.P1, whereas the other witnesses have identified it as Ex.P2. However, Ex.P1 is stolen mobile phone. Therefore, there is some clerical mistake in marking the property. But this cannot be considered to be a contradiction. Regarding the arrest of the accused persons, disclosure statements and registration of FIR as submitted by Ld. Defence Counsels, I do not find any contradiction.
11. Ld. Defence Counsels have argued that one application dated 21.3.2011 was moved by ASI Anil Kumar before Ld. Metropolitan Magistrate in which it was written that accused persons were being produced in the court in muffled faces for the purpose of TIP. However, Ld. Metropolitan Magistrate noted that accused persons were produced with unmuffled faces.
Therefore, Ld. Metropolitan Magistrate did not conduct TIP. In such a situation, it is submitted by Ld. Defence Counsels that the proper conditions for holding TIP of the accused persons were not maintained by Investigating Officer. Accordingly, Ld. Defence Counsels seek benefit of doubt to the accused persons on the point of identification of the accused persons in the court.
12. Ld. Additional Public Prosecutor however argues that identification by the eye witnesses cannot be doubted. Ld. Additional Public Prosecutor has drawn my attention to the testimony of PW1 Jai Prakash. He SC No. 57714/2016, FIR No. 73/2011 Page 28 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 specifically identified accused Harish and Sushil, who had tied him. In cross examination, he had mentioned that he had seen these accused persons, when they were tying him. It means that PW1 Jai Prakash had seen Harish (A1) and Sushil (A5) from close quarters. PW2 Usman Ali had testified that he along with Mohd. Rafiq were sleeping in a room at ground floor of the factory. Accused Ravi (A4) and Daanvir (A6) held him and overpowered him. He testified that accused Ravi took his search and Samsung mobile phone was taken from his pocket, whereas they also took away the other mobile phones i.e. Nokia and LG, which were lying in the almirah. Ld. Additional Public Prosecutor has drawn my attention to the cross examination of PW2 Usman Ali in which he has stated that at that time the light outside his room was on and accused Ravi removed blanket from his face. Ld. Additional Public Prosecutor has drawn my attention to the testimony of PW3 Mohd. Rafiq, who testified that he was sleeping with Jai Prakash in the room of the first floor and two or three persons overpowered them. Two or three other persons overpowered another employee Usman, who was sleeping on the ground floor. The accused persons brought inside one TATA 407 and loaded aluminum wires and left. Thereafter, they brought one champion and loaded it with brass and copper scrap and left. PW3 has testified in his cross examination that 5/6 factory lights were on at that time. Therefore, it is submitted by Ld. Additional Public Prosecutor that SC No. 57714/2016, FIR No. 73/2011 Page 29 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 not only the witnesses had seen the all accused persons from close quarters but also they had seen them for considerable time. Further, they could see the accused persons because 5 or 6 factory lights were on. Hence, it is argued that there was no requirement for conducting TIP proceedings.
13. Ld. Additional Public Prosecutor argued that in State of Maharashtra Vs. Sukhdev Singh & Anr. (1992) 3 SCC 700 and Ronny @ Ronald James Alwaris Vs. State of Maharashtra (1998) 3 SCC 625, the Supreme Court noticed that where the witness had a chance to interact with the accused or where the witness had an opportunity to notice the distinctive features of the accused which lends assurance to his testimony in the Court, the evidence of identification in the court for the first time by such witnesses cannot be thrown away merely because any identification parade was not held. In Malkhan Singh Vs. State of Madhya Pradesh (2003) 5 SCC 746; Vijay @ Chinee Vs. State of Madhya Pradesh (2010) 8 SCC 191 and State of Himachal Pradesh Vs. Lekh Raj & Anr. (2000) 1 SCC 247, the Hon'ble Supreme Court observed that mere failure to hold a TIP is not fatal to the prosecution case but the Trial Judge will need to be circumspect in accepting the identification of an accused by a witness in the court if the accused is a stranger to the witness. The Supreme Court, therefore, relied upon the identification of the accused by the witness for the first time in the court where the witness and the culprit were face to face. It SC No. 57714/2016, FIR No. 73/2011 Page 30 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 is argued that in the present case, witnesses had seen the accused persons face to face and therefor, their identification in the court must be accpeted.
14. I have considered the rival submissions. It must be kept in mind that the incident took place during night. It is pertinent to note that PW1 Jai Prakash and PW3 Mohd. Rafiq were sleeping in the room at the first floor of the factory. The incident had taken place on the intervening night of 28.2.2011 and 1.3.2011. PW1 Jai Prakash in his cross examination had testified that he had seen accused Harish (A1) and Sushil (A5), when they had tied him. PW2 Usman Ali has testified in his examination in chief that Ravi (A4) and Daanvir (A6) had held him and Ravi (A4) had sat on him and he was overpowered by them. Accused not only exhorted that if he raise any alarm, they would kill him but also took his search as well as he searched the room. He testified that he was not allowed to move as accused Ravi had held him by neck. In cross examination, he testified that at that time the light outside his room was on and accused removed blanket from his face and asked him to keep quite. When he tried to speak, Daanvir showed pistol to him. Therefore, it is clear that PW1 and 2 had seen Harish (A1), Ravi (A4), Sushil (A5) and Daanvir (A6) from quite close quarters for sufficient time, when sufficient light enabled them to see and identify A 1, A4, A5 and A6. It is pertinent to note that PW3 Rafiq has also testified in cross examination that at that time five or six factory lights were on. Had SC No. 57714/2016, FIR No. 73/2011 Page 31 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 there not been sufficient light, it would not have been possible for the offenders to execute their plan in the factory. Therefore, identification of Harish (A1), Ravi (A4), Sushil (A5) and Daanvir (A6) by the witnesses has to be believed. I may refer to the testimony of PW17 Ct. Guljari Lal that on 21.3.2011 he joined investigation with ASI Anil Kumar reached the court of Ld. Metropolitan Magistrate, where all the six accused persons were produced from lock up. PW17 testified that inspite of asking them to cover their faces before producing in the court, they refused to do the same. This testimony has not been controverted in cross examination. Therefore, it were the accused persons, who were responsible for creating a situation in which Ld. Metropolitan Magistrate declined to conduct TIP proceedings. Therefore, act of not covering the face by the accused persons, which frustrated the conduct of TIP, leads to a conclusion that had they covered their faces and cooperated in conduct of TIP, they would have been identified by the witnesses.
15. Prosecution has proved that the accused persons were arrested along with the other coaccused persons by SIT Crime Branch headed by Inspector Satya Prakash (PW20) under Section 399/402 IPC, FIR No. 67/2011. On interrogation, the accused persons made disclosure statements about this offence. These disclosure statements were recorded by Crime Branch are Ex.PW10/A of Sushil Kumar, Ex.PW12/A of Daanvir, SC No. 57714/2016, FIR No. 73/2011 Page 32 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 Ex.PW14/A of Mohan, Ex.PW15/A of Harish, Ex.PW11/A of Ravi and Ex.PW20/A of Sahab Singh. It is pertinent to note that the mobile phone Samsung (Ex.P1) was found in possession of accused Sushil Kumar and the same was seized under Section 102 CrPC vide memo Ex.PW10/B as testified by PW10 Ct. Jagbir Singh and PW20 Inspector Satya Prakash. PW2 Usman Ali has testified that one of the accused had taken his mobile phone Samsung. PW2 identified this mobile phone in TIP proceedings Ex.PW2/C. He identified this phone in the court as the same, which was stolen from him.
16. PW20 Inspector Satya Prakash has testified that all the six accused persons were arrested and a TATA Tempo No. DL1LK8922, which was standing at the spot from where the accused persons were arrested was seized vide seizure memo Ex.PW15/D. He also testified that on pointing out of accused persons, the aluminum copper wire in eight bundles were recovered from the shop of accused Sahab Singh vide recovery memo Ex.PW20/B. PW15 Ct. Sunil Kumar has testified that on the night intervening 13/14.3.2011, he was posted at SIT Crime Branch, Sector18, Rohini. Inspector Satya Prakash had received some secret information. A raiding team was formed consisting of HC Baljeet, ASI Ramesh, Ct. Pradeep, HC Jitender, Ct. Amit, Ct. Jagbir, HC Joginder and he (i.e. Ct. Sunil Kumar). At about 8:20 pm, they reached near a Kabari shop and entered a godown.
SC No. 57714/2016, FIR No. 73/2011 Page 33 of 39State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 All the six accused persons were present in the said godown. He apprehended accused Harish. He was the driver of TATA ACE Tempo No. DL1LK8922. Accused Harish made a disclosure statement in respect of the dacoity in question. He proved his disclosure statement Ex.PW15/B. He identified the tempo as reflected in photographs Ex.P1 to P6. PW14 HC Joginder Singh also testified in the same manner.
17. PW18 Ct. Amit Kumar was also part of SIT Crime Branch. He testified that when all the accused persons were arrested, the accused persons had made disclosure statements about the present crime. He signed the disclosure statement of accused Sahab Singh, who got recovered eight big bundles of aluminum wire from junk dealer shop from A15, Main Road, Shahbad Dairy, Delhi. The total weight of the aluminum wire was 280 kg, which was taken in possession vide seizure memo Ex.PW20/B. TATA Tempo No. DL1lK8922 was also seized from the spot.
18. The aforesaid evidence shows that PW1 Jai Prakash had identified accused Harish (A1) and Sushil (A5). PW2 Usman had identified accused Ravi (A4) and Danveer (A6) specifically and PW3 Mohd. Rafiq had identified all the six accused persons, who had entered the factory and committed the dacoity. The stolen mobile phone make Samsung was recovered from the possession of accused Sushil (A5) under Section 102 CrPC. The mobile phone belonged to Mohd. Rafi is proved by cash memo SC No. 57714/2016, FIR No. 73/2011 Page 34 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 Ex.PX1, which was seized by police vide recovery memo Ex.PW2/B. All the accused persons were arrested from a godown by SIT Crime Branch, Rohini along with a TATA Tempo. At the instance of accused Sahab Singh (A2), the stolen aluminum wires etc. were recovered from his shop. The recovery of stolen mobile phone from Sushil Kumar (A5) and recovery of stolen aluminum wires from the shop of Sahab Singh (A2) at his instance further substantiate the prosecution case. It is pertinent to note that the offence took place in the night intervening 28.2.2011 and 1.3.2011 at about 3:00 am. The accused persons were arrested and recoveries effected on 14.3.2011 i.e. after a few days from the incident. Therefore, the recoveries would not leave to an inference that the aforesaid accused persons were dishonest receiver of the stolen property. Rather it proves their involvement in dacoity in question.
19. Ld. Defence Counsels have argued that prosecution had been unable to prove that aforesaid TATA Tempo was used by the accused persons in the dacoity in question and that accused Harish was driver of this tempo. I have considered the submissions. PW5 Hari Om Sharma is the owner of the tempo TATA ACE No. DL1LK8922. PW5 testified that Chanderpal was working as his driver and tempo was parked in garage for repairing till March 2011. PW5 testified that Chanderpal telephonically informed him that crime branch officials had lifted the tempo from the SC No. 57714/2016, FIR No. 73/2011 Page 35 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 garage. PW5 testified that inspite of asking the reasons, Chanderpal did not tell him anything and asked him to come to Delhi. At that time, he was at Kanpur. When he came to Delhi, Chanderpal met him and told him that Crime Branch officials had come to him with his Bhanja Harish and had towed away the vehicle. It is argued by Ld. Defence Counsel that this is a story contrary to the prosecution case. As per prosecution case, the accused persons were present with the tempo from the spot where they were arrested. On the other hand, PW5 testified that Chanderpal told him that police towed away the vehicle from him. I am of the opinion that what Chanderpal told to PW5 is not important. Issue is that if Chanderpal is the driver of the said tempo, how all the accused persons were available with the said tempo in the godown. Harish (A1) has been testified to be the relative of Chanderpal. PW5 has identified him in the court as Bhanja of his driver Chanderpal. Therefore, Harish (A1) could have examined in defence Chanderpal to prove that the vehicle was recovered from Chanderpal not from Harish. The conduct of accused in respect of tempo is such that it leads the court to presume that this vehicle was used in the crime by the accused persons, even though the vehicle was not identified by the eye witnesses to the crime.
20. Ld. Defence Counsels have argued that the case property was not identified by the eye witnesses in TIP proceedings. I am of the opinion that SC No. 57714/2016, FIR No. 73/2011 Page 36 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 the case property i.e. aluminum wires are 208 kg and it was recovered just after 13/14 days from the incident. It cannot be doubted that PW1, PW2, PW3 and PW4 would not be able to correctly identified the same in the court. It is pertinent to note that the accused persons in cross examination have neither suggested to PW1, PW2, PW3 and PW4 that the said property belonged to any of the accused nor they have suggested that such property is commonly available in market. In cross examination, it has not been suggested that the aluminum wires Ex.P2 are not the same, which were stolen in the present offence. In these circumstances, recovery of stolen case property Ex.P2 from the junk dealer shop A15, Main Road, Shahbad Dairy, Delhi of accused Sahab Singh stands proved as testified by PW18 Ct. Amit.
21. However, regarding Mohan (A3), the eye witnesses have not specified his role. It is also not testified by eye witnesses that A3 had come in close proximity with them. His identification in the court by the witnesses could have been relied upon, in case some other evidence like recovery of stolen articles were effected from him. His case is to be distinguished from Harish (A1), Ravi (A4), Sushil (A5) and Daanvir (A6), who had come in close contact with the witness during the incident as testified by PW1 and PW2. There is no such evidence against accused Mohan (A3). His case is also to be distinguished from Sahab Singh (A2). Although the eye witnesses have not testified specifically about A2 coming very close to them SC No. 57714/2016, FIR No. 73/2011 Page 37 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 during incident, however, the recovery of the stolen aluminum wires from his shop at his instance after a few days from the incident corroborate the identification by the witnesses as being participant in the dacoity. However, the only evidence against A3 is his identification by the witnesses coupled with his refusal to cover his face, when he was directed by the police to do so for the purpose of conducting TIP. There is no recovery of stolen property by A3. In such a situation, when eye witnesses had not seen him from close quarters during night, it would be highly unsafe to convict A3. I therefore give benefit of reasonable doubt to accused Mohan (A3) and I acquit him.
22. From the aforesaid discussions, it is proved beyond reasonable doubt that accused Harish (A1), Sahab Singh (A2), Ravi (A4), Sushil Kumar (A5) and Daanvir (A6) had committed house breaking in the factory of Metal Trading Company situated at C105, Aakash Vihar, Shahbad, Daulatpur, Delhi by night for committing the theft, which took shape of dacoity in furtherance of common intention, I convict all of them under Section 457/34 IPC.
23. Prosecution has also proved beyond reasonable doubt that all the accused persons conjointly committed dacoity in the aforesaid premises. Accordingly, I convict Harish (A1), Sahab Singh (A2), Ravi (A4), Sushil Kumar (A5) and Daanvir (A6) under Section 395 IPC. Charge under SC No. 57714/2016, FIR No. 73/2011 Page 38 of 39 State Vs. Harish @ Kalu etc. Judgement dt. 1.12.2018 Section 382 IPC (extortion) has also been proved but since conviction has been held under a major offence under Section 395 IPC, which includes extortion also, separate conviction under Section 382 IPC is not required to be announced. Separate charges under Section 411 IPC were framed against accused Sushil Kumar and Sahab Singh. However, a thief cannot be held to be a dishonest receiver. Since, these accused persons have been convicted under Section 395 IPC, I acquit Sushil Kumar and Sahab Singh under Section 411 IPC.
24. In nutshell, accused Mohan @ Monu (A3) is acquitted. Remaining accused persons are convicted under Section 457/34 IPC as well as under Section 395 IPC.
Announced in the open court on 1.12.2018. VINOD KUMAR Digitally signed by VINOD KUMAR Date: 2018.12.01 12:41:49 +0530 (Vinod Kumar) Additional Sessions Judge05 (North) Rohini Courts Delhi SC No. 57714/2016, FIR No. 73/2011 Page 39 of 39