Delhi District Court
Fir No. 568/07 5 State vs . Neeraj Kumar Etc. 1 Of 51 on 9 August, 2021
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS JUDGE-02(NE), KARKARDOOMA COURTS, DELHI CNR No. DLNE01-000034-2008 SC No. 45075/15 FIR No. 568/2007 PS Khajuri Khas U/s 365/392/397/34 IPC State Versus 1. Neeraj Kumar S/o Sh. Devender Kumar R/o B-171, Ashok Nagar, Shahdara, Delhi. 2. Satpal @ Kallu S/o Sh. Ganga Ram, R/o Main Karawal Nagar Road, Badwali Gali, Village Dayalpur, Delhi 3. Rakesh Prasad @ Chotu S/o Sh. Jamuna Prasad, H.No. 94, Gali No.1, Harijan Basti, Shahdar Pur, Delhi. 4. Sumit Sharma @ Ballu S/o Sh. Brij Pal Sharma, R/o 1449/169A, Kalicharan Ka Makan, Gali No. 4, Durga Puri, Delhi. FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 1 of 51 5. Pradeep Sharma S/o Sh. Ram Pal Sharma, R/o 18/5, Gali No-4, Aman Vihar, PS Karawal Nagar, Delhi Date of Institution / Committal : 10.04.2008 Date of Arguments : 26.07.2021 Date of Pronouncement : 09.08.2021 JUDGMENT:
1. Prosecution case: It is the case of the prosecution that on 25.12.2007 at about 3:27 am, a DD No. 37A was received by P.S. Khajuri Khas, Delhi regarding robbery of truck loaded with almonds, which was assigned to ASI Tilomani Bhatt, who contacted the complainant Satish and called him to PS. Complainant Satish along-with his driver Shailender and cleaner Sunil came to PS and Shailender made a statement that he was the driver of TATA 407 bearing No. DL-1LD-3195 and on 24.12.2007, he left with his tempo loaded with 200 sacks/bags of Almonds from Almond Cold Storage, Kundli, Haryana to Delhi. At about 10.50 pm, he crossed Nanaksar red light and about 250-300 meters ahead, one TSR driver informed him that someone on his tempo had been removing the material. It is further stated that he parked his vehicle in side and asked the person on his tempo to get down, in the meanwhile, four persons by TSR also reached there and two of them forcibly occupied the driver's seat and remaining two covered him as well as cleaner on the point of knife and katta and put them into TSR. It is further alleged that one of the assailants, who was on the driver seat of TSR, kidnapped them and freed near Hindon Airport, whereas others took away FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 2 of 51 the tempo loaded with almonds. It is further stated the he informed the owner of the vehicle as well as police. On the basis of this statement, FIR No. 568/07 under Section 382/34 IPC was lodged by the police. During the investigation, vehicle was found abandoned. All the accused persons were arrested at the instance of secret information or at the instance of each other and they got recovered stolen almonds from different places. Police filed charge-sheet u/s 365/392/397/411/34 IPC against all the accused.
2. This charge-sheet committed to this court against the accused after compliance of Section 207 Cr.P.C.
3. This court has framed charges against the accused persons namely Satpal @ Kallu, Rakesh Prasad, Sumit @ Kallu and Pradeep Sharma u/s 365/392/34 IPC and charges under Section 397 IPC were framed separately against accused Sumit and Pradeep Sharma. Charge under section 411 IPC was framed accused Neeraj Kumar separately. All accused persons pleaded not guilty and claimed trial.
4. Though stolen articles were also recovered from other accused namely Satpal @ Kallu, Rakesh Prasad, Sumit @ Kallu and Pradeep Sharma, but no formal and separate charge under section 411/34 IPC was framed against them. Ld. Addl. PP for State moved an application under section 216 Cr. P.C. but said application was dismissed by the Ld. Predecessor vide order dated 10/02/2020 and prosecution has not preferred any challenge to this order. As such, there is no separate charge against the accused persons u/s 411/34 IPC except accused Neeraj Kumar.
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5. During the pendency of the trial, one of the co-accused namely Sumit @ Ballu has expired and proceedings against him have been abated/ dropped vide order dated 04/03/2011.
6. To prove the allegations, prosecution has examined PW1 Shailender Kumar, PW2 Sunil Kumar, PW3 Arun Kumar, PW4 Sarfaraz, PW5 Dalip Singh, PW6 Vinay Kumar, PW7 Dinesh Chand, PW8 Tejbir, PW9 Ram Prasad, PW10 SI Yashpal Singh, PW11 HC Devinder Kumar, PW12 HC Satish Chand, PW13 Inspector Rajesh Dogra, PW14 Sh. Vikas Dhull, the Ld. MM, PW15 Sh. A. S. Aggarwal, the Ld. MM, PW16 HC Devender, PW17 Inspector B P Sharma, PW18 Satish Chand and PW19 SI Tilomani Bhatt. No other witness has been examined and evidence was closed by this court on 28.02.2019.
7. After closing PE, Statements of all Accused persons recorded under section 313 Cr.P.C, but accused have not preferred to lead any DE despite availing various opportunities and DE was closed vide order dated 19/12/2019.
8. The testimonies of the witnesses recorded by the prosecution are as under.
8.1. PW1 Shailender Kumar has deposed that on 25.12.2007, he alongwith his conductor Sunil Kumar was coming from Kundli, Haryana by his truck bearing No. DL-1LD-3195 loaded with 200 bags of almonds and was going to Karawal Nagar. At about 11.30 /11.45 pm, they reached near Nanaksar Red light, Wazirabad road when someone got stopped his vehicle FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 4 of 51 by asking that someone from back side of his tempo was removing the bags, due to he stopped his vehicle to check. In the meanwhile, 4-5 persons apprehended them and took them away to village Karada and throw them after tying their hands. It is further deposed that they untied themselves and informed the brother of the employer namely Satish and reached at UP boarder wherefrom Satish got them picked by a vehicle. It is further deposed that he made a statement Ex.PW1/A to police. However, he has failed to identity the accused persons as assailants/ kidnappers/robbers and has deposed that those robbers had covered their faces due to he could not see their faces and could not identify any of the robbers. He has further deposed that he was informed by the police that the tempo had recovered somewhere from Loni, UP.
8.1.1. PW1 has not fully supported the prosecution despite cross examination by Ld. Addl. PP for State. During cross examination, he has admitted that the TSR driver informed him that some persons had been removing the almonds bags from his tempo and two assailants caught him hold as well as cleaner Sunil and others took away his tempo, but it is denied that robbers showed him knife or country made pistol to kill. It is further admitted that he did not raise alarm due to fear and TSR driver took both of them ahead to Hindon Airport and dropped at a lonely place. It is further admitted that he joined the investigation of this case and stated to the police that those persons who apprehended/kidnapped him had also threatened to shoot, but it is denied that the tempo without bags was recovered in his presence. It is further denied that he identified the photographs of the accused Neeraj or other accused namely Sumit @ Bablu, FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 5 of 51 Pradeep Sharma, Rakesh and Satpal who allegedly involved in the incident. It is further denied that accused Sumit @ Bablu showed katta and Pradeep Sharma country made pistol at that time, however, it is admitted that the seizure memo Ex. PW1/D bears his signatures. However, PW1 has failed to identify the accused persons as robbers.
8.1.2. During cross examination, he has admitted that the brother of his employer namely Satish had been working with Delhi Police and he narrated the incident to him, but he did not see the almonds kept in his tempo. It is further admitted that he did not inform the police when he was kidnapped.
8.2. PW2 Sunil Kumar has also corroborated the testimony of PW1 regarding the incident, but has denied that the accused persons were those robbers. Though during cross examination by Ld. Addl. PP for State, he has admitted that he was forcibly made to sit in a TSR along with driver Shaliender / PW1, yet he has denied that he joined the investigation on 08.01.2008. He has also not supported the prosecution regarding the mode and manner of committing this offence and rather has admitted that he did not see the condition of almonds bags by his own eyes and was told at cold storage that the bags were containing the almonds. It is admitted that he did not receive any injury during this incident.
8.3. PW3 Arun Kumar has been running a sale business of dry fruits at 582, Katra Iswari Bhawan, Khari Bauli, Delhi. It is further deposed that he imports almonds from California and other countries and store at various FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 6 of 51 cold storages in Haryana including at Anant Cold Store, Kundli and used to send almonds for processing of removal of shells to labor contractor Ram Prasad, Karawal Nagar, Delhi. It is further deposed that in the intervening night of 24-25/12/2007, 200 sacks/ bags of almonds were transported through TATA-407 to Ram Prasad at Karawal Nagar, but in the midnight, Ram Prasad informed him that TATA 407 loaded with almonds had been looted at Wazirabad Road, Trans-Yamuna. He immediately rushed to PS Khajuri Khas and also provided the identification mark of his stolen almonds and made his statement. It is further deposed that after about 3-4 days, he was called by the police to PS Khajuri Khas and found that police were interrogating one Neeraj, who led the police team accompanied with him to Nathu Colony wherefrom 32 parcels of almonds were recovered and seized by the police vide seizure memo Ex.PW3/A and were brought to PS. It is further deposed that after some time, police recovered about 170-175 of almonds bags out of 200 robbed bags and same were got released through the Court vide superdarinama Ex.PW3/B against the court order Ex.PW3/C and Ex.PW3/D. Police took out the samples of almonds from the seized bags and also got them photographed vide photographs marks Ex.P3/E1 to PW3/E3.
8.3.1. During cross examination by Ld. APP for State, PW3 has admitted that he had been getting processed almonds work from Ram Prasad for the last 8-9 years prior to this incident and even Ram Prasad was also authorized to bring 400 bags of almonds from Anant Cold Storage on providing the vehicle numbers. It is further admitted that Ram Prasad provided the registration number of TATA 407 by which he was FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 7 of 51 transporting the almonds, due to he directed the officials of Anant Storage to allow to transport 200 bags by one vehicle, but he did not remember the number of the vehicle. He did not remember being an old matter, as to whether he joined the investigation on 29/12/07 and went to Meet Nagar wherefrom accused Neeraj was apprehended, but accused disclosed his involvement to this case, but it is admitted that he signed the disclosure statement of accused Ex.PW3/F. It is admitted that accused Neeraj took them to a shop at Nathu Colony wherefrom 32 bags of almonds were recovered and seized by the police and accused was arrested vide arrest and seizure memos Ex.PW3/G1 and Ex.PW3/G2. It is further admitted that 25 samples were taken out of the seized 176 bags and all were video-graphed and took into possession vide possession memo Ex.PW3/H. He has identified the case property as Ex.P1 to P5.
8.3.2. During cross examination by accused, he has admitted that he was informed by the IO from PS regarding the recovery of material and it was probably on 29/12/07. Neeraj was sitting in PS with IO when he reached the Police Station, however almonds were not there. It is admitted that he put his signatures on the documents Ex.PW3/A, Ex.PW3/F, Ex.PW3/G1 and Ex.PW3/G2 at PS, but he was not aware about the contents of these documents. It is further admitted that he was not aware about the number of the shop wherefrom the recovery was effected at the instance of accused, but 3-4 persons were sitting inside the shop at that time. He saw the almonds in the police station after recovery from the shop and were brought to PS. He visited the shop with police officials by a police-vehicle in the afternoon hours wherefrom the recovery was effected, but IO neither asked FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 8 of 51 the public persons to join investigation nor persons present at the shop were interrogated by the police. It is further deposed that place of recovery was a Kiryana Shop without sign board and was surrounded by the general shops. It is further deposed that he remained with police till 8:00 pm. He has been running a firm M/s. O.A.S. Associates and importing almonds from California. It is admitted that Ex.PW6/B / gate pass does not bear his signature or signature of his employee and even word gate pass is also not written on it. It is admitted that almonds of that type produced before the court were easily available in the market and even no license was required for selling of such almonds. It is further deposed that he did not produce any bill in the court or before the police regarding the said almonds as it was not asked by the police. Documents mark PW3/D1 and PW3/D2 pertain to the robbed almonds.
8.4. PW4 Sarfaraz has deposed that on 23.12.2008, one Kalwa came to him and sought his shop on rent and he let the same on monthly rent of Rs. 500/- per month to him and he put his lock on the shop. It is further deposed that on 31.12.2007, Kalwa again came to his house along-with police and opened the lock of the shop and got recovered 35 bags of almonds which were seized by the police vide seizure memo Ex.PW4/A. During cross examination, he has admitted that case property was recovered from the jurisdiction of PS Loni. It is admitted that his house measuring 50 square yards was registered in the name of his mother, but she has been residing in village. It is admitted that he knew accused Kalwa since 2004 as they both used to play cricket together. It is further admitted that he neither issued any rent receipt to Kalwa nor any rent agreement was executed, however, Kalwa FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 9 of 51 never resided in this property.
8.5. PW5 Dalip Singh is photographer and has proved that he has been running a photographer studio in the name and style of Swati Photo Studio and on 16.01.2008, he was called by the police to click the photographs of the bags of almonds. He clicked 10 photographs which are Mark PW5/A1 to Mark PW5/A10. During cross examination by Ld. Addl. PP for State, he has admitted that he noticed total 176 bags in PS and police officials took out 5 bags from each heap of 5 almonds bags and 1kg sample was taken out of each bag. He also prepared a CD of the photographs and handed over the same to police. During cross examination by accused, he has admitted that his statement was not recorded by the police, but he was paid by Ram Prasad of Karawal Nagar after 1-2 days of his work. He did not remember the exact amount of the payment of his work, but it is denied that he did not click the photographs or that he did not remember the exact number of bags.
8.6. PW6 Vinay Kumar was the Store Keeper of Anant Cold Storage, Kundli and has deposed that on 24.12.07, he got loaded 200 bags of Almonds in tempo No. DL-1LD-3195 under the directions of Arun Kumar via telephone and were sent to Ram Prasad at Karawal Nagar. He has brought the receipt book Ex.PW6/A, of which original, is Ex.PW6/B. It is further admitted that the name of the driver of the vehicle was Shailender who also signed the challan / receipt against loading of the almond bags. During cross examination, he has admitted that the receipts Ex.PW6/A and Ex.PW6/B are in his own handwriting, but receipt Ex. PW6/A does not bear the name, description and address of the firm and even name of Ram Parsad FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 10 of 51 or Shailender also not written. It is further admitted that the value and address of the delivery is also not mentioned in the receipt.
8.7. PW7 Dinesh Chand was the owner of Vehicle No. DL-1L-D-3195 and has deposed that the names of his driver and conductor were Shailender and Sunil who were deputed on tempo bearing no. DL-1L-D-3195. It is further deposed that on 24.12.2007, both were deputed to transport the almonds from Kundli to Karawal Nagar at the instance of one Ram Prasad who has been working of removing the shells from almonds. On 25.12.2007, he came to know that his vehicle had been looted near Wazirabad road and was asked to reach Delhi. He met his brother, driver and helper of the vehicle as well as Ram Parsad and the vehicle was found abandoned near Loni Road, Tronica City. He was disclosed by Shailender on enquiry that when he stopped his vehicle on red light Wazirabad, some persons robbed his tempo. It is admitted that his brother Satish Chand Sharma was present at PS when he reached there, but his driver did not make any call to him regarding this incident. At the time of his reaching to PS, his driver and helper were present at PS, but vehicle was not there.
8.8 PW8 Tejbir was the photographer and has deposed that on 11.01.2008, he was present at shop when he was called by the Court No. 27 with digital camera to click the photographs. He noticed three heaps of almonds bags and each heap was containing 80 bags and there were total 176 almonds bags. He took the photographs Ex. PW8/A to Ex.PW8/C and prepared a CD Ex. PW8/D. It is further admitted that the almonds are not depicting in the photographs and even he was not aware about the contents FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 11 of 51 of the bags of each photograph. Payment of his services was made by the owner of the almonds but he did not issue any receipt.
8.9. PW9 Ram Prasad is the contractor engaged in the business of removing shells from Almonds through labourers. He has deposed that on 14.12.2007, he was present at the go-down of Arun Kumar and at about 1.30 / 2.00 am, Satish, brother of Dinesh Chand, made him a call thereby informing that the almonds to be delivered at go-down had been stolen / robbed. He informed Arun Kumar accordingly and went to PS with him. It is admitted during the cross examination by Ld. Addl. PP for State that Arun Kumar asked him to get the delivery of 200 bags almonds from Anant Cold Storage Pvt. Ltd., Kundli and to provide the number of two vehicles i.e. DL-1LD 3195 and 8954. He was not aware as to whether he was informed that the vehicle no. DL-1LD 3195 was robbed.
8.10. PW10 SI Yashpal Singh was posted as Duty Officer with PS. In the intervening night of 24/25.12.2007, he registered FIR No. 568/07 on the basis of rukka Ex. PW10/B and the FIR was lodged against DD entry No. 37A which is Ex.PW10/C and computerized copy is Ex. PW10/A. 8.11. PW11 HC Devender Kumar has deposed that on 24.12.2007, he was posted with PS Khajuri Khas and was on night duty when received a call entrusted to ASI Tilomani Bhatt and visited red light, Khajuri Khas, Wazirabad road with ASI and met one Shalineder who told them that 4-5 persons had snatched his vehicle. He along-with ASI went to search the accused persons and one TATA-407 was found parked on the roadside FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 12 of 51 which was identified by Shailender. That truck had been carrying 200 bags of almonds but there was nothing on the vehicle at that time. ASI informed the crime team which inspected the vehicle and IO seized the vehicle vide seizure memo Ex.PW1/D. 8.11.1. During cross examination, he has admitted that he did not state that Shaliender told him that 4-5 persons had snatched his vehicle. He also did not state the name of the driver of the TSR in his presence and even no information regarding the recovery of the vehicle was given to local police and local police of UP was also not joined in the proceedings. It is admitted that the place of recovery of the vehicle was surrounded by the residential areas, shop and public persons, but IO did not record the statement of anyone. Even he was not aware about the names of the members of the crime team.
8.12. PW12 HC Subhash Chand has deposed that on 29.12.2007, he joined the investigation with Inspector B. P. Sharma, Ct. Devender, Ct. Ram Kumar and ASI Tilomani Bhatt. They arrested the accused Neeraj on the basis of a secret information from the place in front of Maruti Showroom, Meet Nagar, Warizabad Road, Delhi. The owner of almonds was also called and they reached the spot along-with secret informer and found that one boy was standing in front of Maruti showroom and was pointed out by the secret informer as Neeraj. Neeraj was apprehended and arrested vide arrest memo Ex.PW3/G1 and personal search memo Ex.PW3/G2. He made a disclosure statement Ex. PW3/F and led the police team to Shop No. A-88, Nathu Colony, Mandoli Road, Delhi and got recovered 32 bags of almonds, which FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 13 of 51 were seized vide seizure memo Ex.PW3/A. Complainant identified his almonds and same were seized after taking out samples from each gunny bags and pointing out-cum-seizure memo Ex.PW3/A was prepared by the IO.
8.12.1. PW12 has further deposed that on 31.12.2007, he joined the investigation to search the accused Pardeep, but secret informer led to accused Satpal @ Kallu and Rakesh @ Chotu who were apprehended from the place near Dayalpur English Wine Shop and were arrested vide arrest memos Ex.PW12/A and Ex.PW12/A1 and their personal search was conducted vide search memos Ex.PW12/B1 and Ex.PW12/B1. Both accused made their disclosure statements Ex.PW12/C and Ex. PW12/D. It is further deposed that accused Satpal led the police team to Kasim Vihar, Loni, UP and got recovered 35 bags of almonds from a shop which were seized vide seizure memo Ex.PW4/A. The owner of shop namely Sarfaraz was joined into investigation. On the other hand, accused Rakesh @ Chhotu led the police team to village Sadat Pur, Harijan Basti and got recovered 24 bags of almonds from the first floor of his house and IO seized the same vide seizure memo Ex.PW12/E. Accused also pointed out the place of incident vide pointing out memo Ex.PW12/F. 8.12.2. PW12 has further deposed that accused Satpal and Rakesh led the police team to one export factory of accused Sumit @ Ballu at E-337, Anand Marg, Babar Pur, Delhi and got arrested accused Pardeep Sharma and Sumit @ Ballu (Now deceased) from there and they were interrogated and arrested vide arrest memos and personal search memos Ex.PW12/G, FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 14 of 51 Ex.PW12/G1 and Ex.PW12/H and Ex.PW12/H1. They made their disclosure statements Ex.PW12/J and Ex.PW12/K. Accused Sumit @ Ballu (now deceased) got recovered 55 gunny bags from the ground floor of the factory which were seized vide seizure memo Ex.PW12/L and accused Pardeep got recovered 30 gunny bags from his house at Amar Vihar, Karawal Nagar, Delhi. The stolen material was seized vide seizure memo Ex. PW12/M and accused also got prepared pointing out memo Ex. PW12/N. 8.12.3. During cross examination, PW12 did not remember as to whether any site plan of the place of arrest of the accused Neeraj was prepared, but statements of witnesses were recorded in his presence. It is admitted that secret informer remained with them for about 4-5 hours and pointed out towards the accused from a distance of 50 yards and on pointing out towards the accused, they apprehended the accused who did not try to flee. It is further deposed that there was street light on the road and rickshaw pullers were also there, but they were not joined into investigation. They did not note down the particulars of TSRs which were passing through, however they remained there for about one and half hours and completed the writing work at the spot itself while sitting on the footpath. Site plan of shop wherefrom the recovery was effected was prepared by the IO, but he did not remember as to whether proof of the ownership of the shop was collected, however no photograph of the case property was taken at the spot. He did not sign the recovery of almonds sacks, but they reached at Shop No. A-88 at about 9.00 pm and remained there upto 10.00 pm. IO did not call any shopkeeper to join investigation and shop was of a big size, but FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 15 of 51 he did not remember its exact measurement, however main gate fell in eastern side. He did not sign the site plan. The recovered material was not weighed but his statement was recorded at the spot of arrest of the accused itself. Case property was brought to PS by the vehicle. It is admitted that the samples of almonds were not collected at the spot after the recovery but complainant was called to PS and he identified the case property which was sealed at the spot of recovery itself, however statement of the complainant was recorded regarding identification of the case property.
8.12.4. PW12 has further deposed that no public person was joined in the investigation when accused Satpal was arrested and even he did not remember as to whether any site plan of place of arrest was prepared. He did not remember as to whether statement of any witness was recorded by IO at the place of arrest of the accused. Secret informer joined them at 3.00 pm on 31.07.2007 and they remained at the place of arrest of accused for about 1 - 1 ½ hours and place of recovery was at a distance of 6 km from the place of accused Satpal. Accused made disclosure statement after his arrest. It is admitted that no public person was asked to join investigation or recovery proceedings, but they reached at the spot of recovery at about 7.30 to 7.45 pm and the recovery was effected from a go-down, but he did not know the number of said go-down. The go-down was opened by Sarfaraz when they reached there and there was no lock put on the go-down but shutter was down. He signed the seizure memo and site plan prepared by the IO, but recovered sacks/ bags were not weighed and case property was brought to PS by a govt. vehicle, of which number, he did not remember. The recovered case property was sealed at the place of recovery in the same FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 16 of 51 condition as it was recovered and was not got identified by the IO in his presence.
8.12.5. PW12 has further deposed that they received the secret information at about 6.00 pm on 31.12.2007 and he joined the investigation at the instance of IO who received information personally. He did not record any DD entry at PS regarding his departure but they reached the spot by private Santro car owned by Inspector B. P. Sharma. They reached at the spot at E-377, Anand Marg, Sadat Pur i.e. factory of accused Sumit @ Ballu wherefrom 55 bags of almonds were recovered from the ground floor. Again, no public persons got joined into investigation. It is denied that nothing was recovered from the accused. Similarly, no public person got joined at the time of arrest of accused Pardeep Sharma, but father of the accused was informed about his arrest, however his father was not available at the spot during arrest. Accused Rakesh was arrested from liquor shop at about 4.30 to 4.35 pm and was arrested at about 5.00 pm. 8.13. PW13 Inspector Rajesh Dogra was the in-charge of Crime Team and inspected the TATA 407 bearing No. DL-1LD-3195 and prepared his SOC report.
8.14. PW14 Sh. Vikas Dhull was posted as the then Ld. MM and conducted the TIP proceedings of accused Rakesh, Satpal, Sumit (since expired) and Pardeep Sharma. Applications were marked to him by the then Ld. MM Sh. A. S. Aggarwal and fixed for 04.01.2008. All the accused refused to participate in TIP proceedings. He recorded their statements and FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 17 of 51 conducted proceedings vide Ex. PW14/A to Ex.PW14/L. 8.15. PW15 Sh. A. S. Aggarwal, the then Ld. MM, has deposed that on 09.01.2008, one Arun Kapoor, proprietor of M/s. O. A. Estate, moved an application for superdaari of almonds. He apprehended his signatures on seizure memos Ex. PW13/A, Ex. PW4/A, Ex. PW12/E, Ex. PW12/M and Ex. PW12/N and total 80 sacks of almonds were put outside the court room. The total 176 bags were produced. IO prepared site plan Ex.PW15/A pertaining to the place and photographer was called to click the photographs. He conducted the proceedings Ex.PW15/B. On 15.01.2008, photographs of the case property were brought before him and case property was directed to be released to the actual owner vide order Ex. PW15/C. 8.16. PW16 HC Devender Kumar also joined investigation with IO on 29.12.2007 and witnessed the arrest of accused Neeraj from the spot in front of Maurti Showroom, Meet Nagar, Wazirabad Road, Delhi, in the presence of Arun Kumar, at the instance of secret informer. He also witnessed the recovery of 32 gunny bags at the instance of accused Neeraj from a shop at Nathu Colony. He further joined investigation on 31.12.2007 and witnessed the arrest of accused Satpal @ Kallu and Rakesh @ Chhotu who disclosed to the recovery. Accused Satpal got recovered 32 gunny bags of almonds in his presence, whereas accused Rakesh got recovered 24 bags from his house in his presence. They also got identified the spot of incident. He further witnessed the arrest of accused Sumit and Pardeep at the instance of accused Satpal and Rakesh and also recoveries at their instance.
FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 18 of 51 8.16.1. During cross examination, he has deposed that on 29.12.2007, secret informer did not come to PS, but they left PS at 4.35 pm and reached in front of Maruti showroom at about 6.30 pm. There was sufficient light in which he was identified from a distance of about 5-6 steps away from the showroom. Accused was present on footpath when he was apprehended in presence of public persons, but public persons did not join investigation. IO did not prepared site plan of the arrest of accused Neeraj, but disclosure statement and arrest papers of the accused were prepared under the street light. They remained there for about 1½ - 2 hours and completed the writing work. Accused led to a Shop No. A-88 which was measuring 8 x 8 feet, having east side gate surrounded by adjacent shops. They reached between 9.00 to 10.00 pm at the shop, but IO did not make any inquiry from the shopkeepers. He did not remember whether the shop was opened or closed, but IO did not prepare the site plan of the spot. IO prepared seizure memo regarding recovery of 32 gunny bags containing the almonds, but no public person was got joined. They remained there for about 4 hours. In his presence, no sample of almond was taken out of the case property and case property was sealed at the shop itself. The shop wherefrom the recovery was effected at the instance of accused Satpal was found closed, but he did not remember as to whether it was locked or simply closed, however no person was called from neighbourhood to join investigation. Accused Rakesh was apprehended at about 5.35 pm, but was arrested at about 7.35 pm and place of recovery was about half kilometer away from the place of his arrest. After the arrest of accused Rakesh, police team went to co- accused Satpal who led to the recovery and accused Rakesh was with them at that time. The house of accused was not locked and was situated at FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 19 of 51 Saddat Pur village wherefrom 24 gunny bags were recovered. Secret informer met Inspector B. P. Sharma at Khajuri pushta chowk when accused Pardeep was arrested from his house, which was lying opened. He was not aware as to whether any site plan of the house of the accused was prepared or not, and even he was also not aware about the ownership of the house, but house was constructed in the area of about 100 yards. Accused Pardeep pointed out towards gunny bags lying in the said house, but he could not admit or deny that accused had been residing in that house or not.
8.17. PW17 Inspector B. P. Sharma also joined investigation on 29.12.2007 with investigation team and witnessed the arrest of accused Neeraj who was arrested on secret information and led to the recovery of 32 gunny bags containing almonds. He again joined investigation on 31.12.2007 and witnessed the arrest of accused Satpal @ Kalwa and Rakesh @ Chotu who led to the recoveries from Kasim Nagar, UP and village Saddatpur respectively. On 01.01.2008, he again joined investigation and in police custody accused led to E Block, Babarpur wherefrom accused Sumit @ Ballu and accused Pardeep Sharma were apprehended and led to the recovery of almonds bags of 55 and 30 respectively which were seized and brought to PS and have been identified as Ex. P1 to Ex. P5. He was not the IO but supervised the investigation. He received the secret information but secret informer did not tell him about accused Pardeep. He has admitted that the dimensions of shop wherefrom accused Neeraj got recovered stolen property was about 80-90 square yards and was lying open and servants were present there, but no site plan of the shop was prepared. Even photographs of the shop were also not taken, but almonds were weighed at FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 20 of 51 PS in sealed condition. Secret informer gave information regarding the presence of the accused Neeraj at about 8.00 pm. 8.18. PW18 Satish Chand has deposed that in the intervening night of 24/25.12.2007, he was present at his home at about 1.30 am to 2.00 am, when he received the information regarding the robbery of vehicle bearing No. DL-1LD-3195 containing 200 bags of almonds. The driver told him that TSR borne accused looted his vehicle.
8.19. PW19 Retired SI Tilomani Bhatt was the IO who conducted the investigation on receiving DD entry no. 37A. He recorded the statement of complainant Shailender and prepared rukka Ex. PW19/A and got registered FIR. He prepared site plan Ex.PW19/B and conducted the search of the vehicle and seized the same as abandoned. He informed the crime team and SI Rajesh Dogra, in-charge lifted the chance prints from the vehicle and keys and gate pass slip of the badaam was also seized from the vehicle itself. He seized the vehicle vide seizure memo Ex.PW1/D. On 29.12.2007, he along with police team arrested accused Neeraj at the instance of secret informer and in the presence of owner of the almonds, accused admitted that he purchased the stolen badaam from one Pardeep Sharma @ Rs. 110 per kg while the rate was very high at that time and 32 bags of almonds were recovered from his shop at Nathu Colony. Neeraj made his disclosure statement Ex. PW3/F. Neeraj took him to the house of accused Pardeep Sharma at H.N. 18/5, Gali No. 4, Aman Vihar, Karawal Nagar, but his father informed the police that accused was not present there for the last three days. On 31/12/2007, police team was searching accused Pradeep Sharma FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 21 of 51 when a secret informer disclosed about the presence of two other accused Satpal @ Kalwa and Rakesh @ Chhotu and they were apprehended from Dayalpur English Wine Shop and were arrested and led to the recovery of 35 bags and 24 bags of almonds respectively which were seized vide seizure memo Ex.PW4/A and Ex.PW12/E in pursuance of disclosure statements Ex.PW12/C and Ex.PW12/D. 8.19.1. PW19 has further deposed that on 01.01.2008, he obtained the police custody of the above both accused and during police custody, they got arrested co-accused Sumit @ Ballu and Pardeep. Accused Sumit @ Ballu got recovered 55 bags of almonds from his factory, whereas Pradeep got recovered 30 gunny bags of almonds from his home in pursuance of their disclosure statements.
8.19.2. During cross examination by accused, he has admitted that he prepared the site plan but he did not obtain the signature of the complainant on the site plan, however it was prepared in his presence. He neither prepared the site plan of the place of recovery of the vehicle nor joined the public persons into investigation. On 29/12/07, he left PS at about 3:30-3:45 pm and reached in front of the Maruti showroom at 6.45 pm / 7.00 pm and it was a dark time and accused was found outside Maruti showroom which was opened at that time. Accused was apprehended about 20-25 feet away from the place where he was apprehended. The shop wherefrom recovery was made at the instance of accused Neeraj was opened, but he did not verify the ownership of the possession of the shop and even site plan was also not prepared, however disclosure statement of accused was recorded FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 22 of 51 between 8.30pm to 8.45 pm. He neither prepared the site plan of the shop nor shop was photographed. Accused Neeraj led to the house of accused Pardeep, but he was not found at the given address, however recovery of almonds was made from the first floor of a room which was found opened at that time.
8.19.3. PW19 has admitted that the brother of the owner of the robbed tempo was a police official. The factory where sewing work was being done belonged to accused Sumit @ Ballu (now deceased) as disclosed by the accused Satpal @ Kalwa and Rakesh @ Chhotu, but he did not verify the ownership of the factory. He neither prepared the site plan of the house of the accused Pradeep Sharma wherefrom the recovery was made nor made any inquiry of the ownership of the house. On 31/12/2007, he left PS at 3:00 pm and secret informer met him at 3:15 pm and the distance between the place of information and arrest of the accused Satpal and Rakesh was about 200 meters, but no public person joined into proceedings. Both accused were apprehended at about 4:00 pm and were arrested at about 5:00 pm, but he did not ask the public persons to join investigation. The disclosure statements of accused were recorded at the spot of their arrest and they left to make the recovery of the stolen articles at the instance of accused at about 7:00 pm and completed the recovery proceedings within 45 minutes, however he did not collect the rent agreement of the shop from the owner nor any inquiry from the owner was made. They left the place of recovery at the instance of accused Satpal at about 8:45 pm and left to Saddatpur which was at a distance of about 2 ½ km away and they took 45 minutes in completing of all recovery proceedings from rented FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 23 of 51 accommodation and finally left the place at about 9:45 pm. He arranged for the TIP of the accused persons but they refused to participate in the TIP, but on 15/01/2008, case property was released to owner after taking out the samples seized vide seizure memo Ex.PW3/H. He also collected the documents from Anant Cold storage Ex.PW6/A and took into possession vide seizure memo Ex.PW19/C, whereas gate pass of the vehicle was seized from the dash board of the vehicle itself.
9. I have heard the arguments and perused the record. After going through the testimonies of PW1 and PW2, who were the eye witnesses as well as victims of the incident i.e., robbery, kidnapping and use of deadly weapons during the incident, have supported the prosecution to some extent, but they have failed to identify the accused persons as assailants who kidnapped them and robbed of their vehicle loaded with almonds. Though Ld. Addl. PP for State has cross examined both the above-said witnesses at length, yet they have not changed their version and have categorically denied the suggestions that the accused persons were those robbers who committed the robbery of their tempo loaded with the bags of almonds. They have further denied that they have colluded with the accused persons due to they have denied the accused to be those robbers. Not only the denial of the identity of the accused persons as assailants, but PW1 Shaliender Kumar has also admitted during cross examination on behalf of accused that he did not see the almonds bags loaded in his tempo and rather had no knowledge about the robbed articles. Similarly, PW2 Sunil Kumar has also denied all the material facts including joining of police investigation on 08.01.2008. He has further denied that accused Sumit (now FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 24 of 51 deceased) and Pardeep pointed out the knife and country made pistol towards him or threatened to kill or that accused Satpal @ Kalwa took his tempo away. He has also corroborated the testimony of PW1 that he did not see the contents of the bags loaded in his tempo by his own eyes but was only told that the bags were containing the almonds robbed by the accused persons. It is admitted that he did not receive any injury during the incident and also did not report to anyone about this incident. He has also denied that his statement was recorded by the police. In fact, PW1 and PW2 were the main eye witnesses as well as victims of the incident and have categorically denied the involvement of the accused persons in this robbery, due to the involvement of accused persons to this incident of kidnapping as well as robbery could not be proved.
10. Further, police have arrested all the accused persons one after another but still their involvement as robbers was totally dependent upon the testimonies of PW1 & PW2 only and none of the other witnesses was an eye witness to this incident and all other witnesses were only witnesses of investigation. PW3 Arun Kumar and PW4 Sarfaraz were the witnesses of recovery of stolen articles and did not witness this incident. PW6 Vivek Kumar has produced the receipt of loading of 200 bags of almonds on the vehicle no. DL-1LD-3195, whereas PW7 Dinesh Chand was the owner of vehicle which was allegedly robbed out of the possession of PW1 and PW2. PW8 Tejbir was the photographer who took the photographs of the recovered 176 almonds bags which were part of the stolen goods. PW9 Ram Parshad has proved that he along-with Arun Kumar visited the PS on receipt of the information of recovery of the articles but did not witness this FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 25 of 51 incident. PW11 HC Devender Kumar, PW12 HC Satish Chand, PW13 Inspector Rajesh Dogra were again the witnesses of investigation and none of them witnessed the robbery of the vehicle loaded with almonds or kidnapping of the driver and cleaner of the vehicle on the point of weapons by the accused persons. As such, prosecution could not prove the charges u/s 392/34 IPC against the accused persons.
11. Further, accused Pradeep Sharma has also been charged u/s 397 IPC, but again charge could not be proved against him. For the purpose of proving the charge u/s 397 IPC, it ought to be proved that accused used some dangerous weapon during the robbery and for that purpose recovery of weapon was necessary but no such weapon has been seized from the accused. A similar charge of section 397 IPC was also framed against co- accused Sumit, but he has expired during the pendency of trial due to this case has already been abated qua him. In any case, prosecution has neither proved any recovery of weapon of offence allegedly used during the incident nor has tendered any explanation as to how such weapon was used by the above said accused, especially when both PW1 and PW2 have categorically denied the use of any such weapon during the incident. As such, this charge u/s 397 IPC could also not be substantiated and established against the accused Pardeep Sharma and prosecution has failed to discharge the burden to prove this offence.
12. Though prosecution has failed to prove that the accused persons were the robbers who robbed the almonds loaded on truck, yet police have recovered huge quantity of about 176 sacks/bags of almonds from all FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 26 of 51 accused and this recovery is material. However, there is no formal charge u/s 411/34 IPC against the accused persons except accused Neeraj Kumar and even application of the prosecution to frame additional charge u/s 411/34 IPC has been dismissed by the Ld. Predecessor and prosecution has not preferred any challenge to this order and it has attained finality. In fact, there is no separate charge u/s 411/34 IPC against the accused persons except Neeraj Kumar, but this huge recovery from accused persons has to be dealt with.
13. Ld. Addl. PP for the State has argued that a huge quantity of stolen almonds has been recovered at the instance of all accused due to all the accused persons are liable u/s 411/34 IPC for this recovery of stolen articles. It is further argued that accused persons have been charged u/s 365/392/34 as well as 397 IPC, but prosecution could not bring these charges to home in the absence of supporting testimony of victims, however all the accused have failed to tender any explanation to this huge recovery of robbed articles and, in the absence of proving any explanation, all the accused are liable to be convicted u/s 411/34 IPC being a lesser offence to charged offence and accused may be convicted for this offence.
14. On the other hand, Ld. Counsels for the accused persons have argued that accused cannot be convicted u/s 411/34 IPC in the absence of any formal charge against them and it is against the principle of natural justice and would result in miscarriage of justice, as the accused persons have not been given opportunity to disprove the charge against them which was possible only if a formal charge u/s 411/34 IPC would have been framed FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 27 of 51 against them. It is further argued that the prosecution was well aware about this legal proposition, due to it moved an application for alteration of charge u/s 216 Cr.P.C but the same was dismissed by the court and after dismissal of that application, prosecution was supposed to prefer a formal challenge against that order and now order has got finality and same relief cannot be granted indirectly to the prosecution which has been denied earlier and all accused are liable to be acquitted.
15. I have heard the rival submissions and perused the record. Before proceedings further, it is necessary to go through the evidence against the accused persons. Admittedly, accused persons have been arrested in this case and firstly Neeraj Kumar was arrested at the instance of secret informer and PW12 HC Satish Chand, PW16 HC Devender and PW19 SI Tilomani Bhatt have proved this fact. Accused Neeraj Kumar was apprehended at the instance of secret informer from a place near a footpath, in front of Maruti Showroom and was arrested vide arrest and personal search memos Ex.PW3/G1 and Ex.PW3/G2. He made a disclosure statement Ex.PW3/F which led to the recovery of 30 gunny bags of almonds from Shop No. A-88, Nathu Colony, Mandoli Road, Delhi which were seized vide seizure memo Ex.PW3/A. PW19 /IO has also proved that the accused Neeraj Kumar disclosed that accused purchased the stolen articles from accused Pradeep Sharma @ Rs. 110/- per kg which was much lower than the market rate. Police also reached to accused Pradeep Sharma but he was found absconding of his home. As such, it stands proved that recovery of the robbed articles was made at the instance of accused Neeraj Kumar.
FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 28 of 51
16. Not only this, police also apprehended co-accused Satpal @ Kalwa and Rakesh @ Chhotu at the instance of secret informer during the search of accused Pradeep Sharma and they were arrested vide arrest and personal search memos Ex.PW12/A, Ex.PW12/A1, Ex.PW12/B and Ex.PW12/B1. Both accused made their disclosure statements Ex.PW12/C and Ex.PW12/D. In pursuance of disclosure statement of accused Satpal @ Kalwa, he led to the recovery of 35 gunny bags of almonds from a shop owned by the mother of PW4 Sarfraj and taken over on rent by the accused. The above said bags of almonds seized vide seizure memo Ex.PW4/A on the identification of the complainant in the presence of PW4 Sarfraz. Besides it, accused Rakesh @ Chhotu was also arrested and got recovered 24 gunny almonds bags from his home at Village Shahdatpur, Harijan Basti, Delhi which were seized vide memo Ex. PW12/E. As such, arrest of both accused and recovery at their instances stands proved.
17. After the arrest of the above said accused persons, they disclosed the involvement of co-accused Satpal @ Kalwa and Rakesh @ Chhotu and got arrested co-accused Sumit @ Bablu (now expired) from an export factory and also other accused Pardeep Sharma and both were arrested vide arrest and personal search memos Ex.PW12/G, Ex.PW12/G1, Ex.PW12/H and Ex.PW12/H1. Accused Sumit @ Bablu (now deceased) made a disclosure statement Ex.PW12/J and co-accused Pardeep Sharma made the disclosure statement Ex.PW12/K. In pursuance of the disclosure statement of accused Sumit @ Bablu (deceased), police recovered 55 gunny bags of almonds from an export factory at Babarpur, Delhi which were seized vide seizure memo Ex.PW12/L. Accused Pardeep Sharma also got recovered 32 gunny FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 29 of 51 bags from his home at Aman Vihar, Karawal Nagar in pursuance of his disclosure statement which were seized vide seizure memo Ex.PW12/M. PW12 HC Satish Chand, PW16 HC Devender, PW17 Insp. B.P. Sharma and IO, SI Tilomani Bhatt witnessed the arrest of abovesaid accused persons as well recovery of stolen articles at their instance. PW19 IO/ SI Tilomani Bhatt carried out all such recoveries at the instance of accused persons after separating the samples out of the seized articles. As such, it stands proved that the robbed articles were recovered at the instance of every accused from different places.
18. Now it is to be seen as to whether recoveries effected at the instance of accused persons were reliable or not. This incident took place on 24.12.2007 and the first accused Neeraj was arrested on 29.12.2007. PW12 HC Satish Chand witnessed the arrest of accused Neeraj when he was found present in front of Maruti showroom, Meet Nagar, Wazirabad Road, Delhi. PW3 has also witnessed and corroborated his arrest. Accused Neeraj Kumar made a disclosure statement Ex.PW3/F which led to the recovery of stolen articles from his shop on the same day i.e. 32 bags from Shop No A-88, Nathu colony, Mandoli Road, Delhi. Accused Neeraj Kumar was arrested for the allegations of purchasing of the robbed articles/ almonds in lower rates from co-accused Pradeep Sharma. Though he was not the part of the gang which committed the robbery of the almonds loaded on the tempo, yet he led to the police to the actual robbers who further led to the arrest as well as recovery of the stolen material. The arrest of other accused persons started from 31.12.07 onwards and all the recoveries were made between 31.12.07 to 01.01.2008, however all such recoveries were mostly on the FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 30 of 51 same day of the arrest of the respective accused and there was no much delay in such recoveries to cast a doubt.
19. Ld. Addl. PP for the State has argued that all the accused persons except Neeraj Kumar were part of gang of the robbers who committed the robbery of the truck loaded with almond bags, but this offence of robbery u/s 392/34 IPC could not be proved due to hostile testimonies of the driver and helper of the looted truck, however it stands proved that the recovery of the looted article was made at the instance of all accused namely Satpal @ Kalwa, Rakesh @ Chhotu, Sumit @ Bablu and Pradeep Sharma and it was beyond doubt that accused were in conscious possession of the stolen articles to make them liable u/s 411/34 IPC, as accused retained the robbed article despite knowing to be robbed and every accused is liable to be convicted u/s 411 IPC. On the other hand, Ld. Counsels for the accused have argued that the prosecution has failed to prove that the material recovered at the instance of the accused was stolen property and in the absence of proving this fact, it could not be proved that all the accused were found in conscious possession of the stolen property and they are not liable for any offence u/s 411/34 IPC as argued. It is further argued that the recovery of the robbed articles was also not beyond doubt as no public witness joined into the recovery proceedings despite availability and this doubtful recovery is liable to be discarded and all the accused are entitled for the benefit of doubt. It is further submitted that the police have not collected any proof of the premises wherefrom the recoveries were affected or that those premises belonged to the accused persons or that the accused persons were in exclusive possession of those premises, due to such FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 31 of 51 recoveries could not be connected to the accused and all accused are entitled for acquittal.
20. Admittedly, all the accused persons were arrested during the course of investigation and this fact is not disputed. Accused made their disclosure statements which led to the recovery of the stolen property / almonds from the different places seized through separate seizure memos as discussed above. This recovery of such huge quantity of the stolen property at the instance of every accused remained un-explained. This recovery is very well admissible u/s 27 of Evidence Act being made in pursuance of the disclosure statements of the accused and law to this effect has been discussed in Anter Singh v. State of Rajasthan (2004) 10 SCC 657, as under:
"16. The various requirements of the section can be summed up as follows:
1. The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discov-
ered must be established according to prescriptions relating to rel- evancy of other evidence connecting it with the crime in order to make the facts discovered admissible.
2. The must have been discovered.
3. The discovery must have been in consequence of some information received from the accused and not by the accused's own act.
4. The person giving the information must be accused of any offence.
5. He must be in the custody of a police officer.
6. The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 32 of 51
7. Thereupon only that portion of the information which related dis-
tinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
21. In view of the above said law, the recovery of the stolen articles at the instance of accused persons stands proved. No doubt merely the disclosure statements of the accused made during police custody are not admissible, yet the recoveries in pursuance of such disclosure statements are very well admissible, provided recoveries are reliable. The disclosure statement of accused Satpal @ Kalwa Ex.PW12/C led to the recovery vide seizure memo Ex.PW4/A, accused Rakesh Prasad @ Chhotu made statement Ex.PW12/D which led to the recovery vide seizure memo Ex.PW12/E, accused Sumit @ Ballu (now deceased) made disclosure statement Ex.PW12/J which led to the recovery vide seizure memo Ex.PW12/L, accused Pradeep Sharma made disclosure statement Ex.PW12/K which led to the recovery vide Seizure memo Ex.PW12/M and accused Neeraj Kumar also made his disclosure statement which led to the police to make recovery vide seizure memo Ex.PW3/A. The above said recoveries made in pursuance of the disclosure statements of the accused persons were very well admissible u/s 27 of Evidence Act. All the recoveries were made from the different places which were within the exclusive and personal knowledge of the accused persons and such recoveries cannot be doubted merely because there are some contradictions in the testimonies of the recovery witnesses, whereas those contradictions are not material. Only those contradictions in the testimony are material which are going to dispute the very fact supposed to be proved by the testimony, otherwise contradictions are immaterial. The law laid down in Sunil Kumar Sambhu Dayal Gupta (Dr.) and others v. State of FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 33 of 51 Maharashtra, (2010) 13 SCC 657 has supported the above said version that the contradictions / omissions must be of such nature which materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements which do not affect the core of the prosecution case should not be made a ground to reject the evidence of the witness in entirety.
22. Though the testimony of PW3 has some contradictions regarding his presence with the police officials at the time of arrest as well as mode of recovery of stolen article, yet it is not fatal, as it has duly proved that the recovery was effected at the instance of the accused Neeraj Kumar and such contradictions cannot render the recovery unlawful, especially when all the other police officials have proved this recovery beyond doubt. Most of the recovery witnesses have stood by their testimonies despite lengthy cross examination by the accused persons and no material contradiction has emerged during their testimonies and recovery of stolen articles stands proved.
23. Not only this, these recoveries of stolen articles at the instance of accused persons have also proved by the virtue of law of presumption u/s 114 (a) of Evidence Act. The period of the recovery of the stolen articles after the arrest is material factor to raise statutory presumption and there must not be long gap during the arrest and recovery of the stolen article in pursuance of disclosure statement of accused. In the present case, accused Neeraj Kumar was arrested on 29/12/07 and recovery was also effected on the same day i.e. on 29/12/07. Accused Satpal @ Kalwa and Rakesh Prasad @ Chottu were arrested on 31/12/07 and recoveries at their instances were FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 34 of 51 also made on same day i.e. on 31/12/07. Accused Sumit @ Ballu (Now deceased) and Pradeep Sharma were arrested on 01/01/08 and recoveries were again made on same day i.e. 01/01/09. In fact, the recoveries at the instances of accused persons were made on the same day of their arrest and it cannot be said the recoveries at the instances of accused were delayed.
24. The law of such presumption u/s 114 (a) of Evidence Act has been dealt with by the Hon'ble Supreme Court in Ayodhya Singh v. State of Rajasthan, (1972) 3 SCC 885 and has held that "the recovery of the stolen articles within seventeen days of the theft satisfy the requirements of illustration (a) of Section 114 of the Indian Evidence Act, a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession and presumption that the appellant was guilty of the offence under Sections 457 and 380, Penal Code, 1860".
25. Further, in Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330, it is held that "the nature of presumption under Illustration (a) to Section 114 must depend upon the nature of the evidence adduced. No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 35 of 51 particularly when the appellant had been absconding during that period. There was no lapse of time between the date of his arrest and the recovery of the stolen property".
26. Similarly, in Virumal Mulchand v. State of Gujarat, (1974) 3 SCC 565 accused was convicted u/s 411 IPC with the help of presumption under section 114 (a) of Evidence Act for the recovery of stolen property after 2 days of the theft. Even in Nagappa Dondiba Kalal v. State of Karnataka (1980) (supp) SCC 336, accused was convicted u/s 411 IPC with the help of presumption u/s 114 (a) of Evidence Act for recovery of ornaments after 3 days of incident.
27. In view of the above said law, it stands proved that the recovery of the stolen articles soon after the incident has a presumption u/s 114 (a) of Evidence Act and this presumption is sufficient to prove the charges against the accused, provided accused fail to rebut this presumption by tendering an explanation of such possession. In the present case, accused persons were found in possession of the robbed articles soon after the incident due to they are liable for section 411/34 IPC.
28. Besides it, all the accused persons also pointed out the spot of incident and police prepared pointing out memos Ex.PW12/F and Ex.PW12/N besides pointing out-cum-recovery memo and that pointed out memos are also very well admissible under section 8 of the Evidence Act as held in Prakash Chand v. State (Delhi Administration) (1979) 3 SCC 90 and also an incriminating evidence against the accused. Besides it, FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 36 of 51 statements of all the accused persons were recorded u/s 313 Cr.P.C. and the statements would show that accused persons have not offered any explanation to these incriminating recoveries of the stolen material except stating "I DO NOT KNOW" or that recovery was planted. Accused were supposed to explain as to how recoveries were planted upon them and what was the motive of the police to plant such recoveries upon them, but they have not tendered any explanation to it and it shall be considered that the recoveries were effected out of their possession and were genuine.
29. Now the objection of the Ld. Counsel for the accused has to be dealt with. Ld. Counsel for the accused Neeraj Kumar has argued that to raise this presumption the prosecution has to prove the recovery beyond doubt, but in this case, the prosecution has failed to prove the recovery beyond doubt. It is further argued that even the arrest of the accused was also dramatic and could not be proved beyond doubt. However, it is not disputed phenomenon that the arrest of the accused in criminal cases are usually made through secret informer and there is nothing unlawful about it. In the present case also, police arrested the accused Neeraj Kumar first and PW19 has proved that he purchased the undervalued almonds despite knowing to be stolen and disclosed the name of accused Pradeep Sharma who provided him those almonds. Accused Pradeep also found in possession of huge quantity of the stolen articles and followed by the arrest of the other accused persons as well as recoveries. I have already observed that recoveries of the stolen property at the instance of accused persons have been duly proved that they were found in possession of stolen articles which were part of robbed articles and such recoveries were lawful.
FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 37 of 51
30. Ld. Counsel for the accused has further argued that the prosecution has failed to join the public persons despite availability and it shall be presumed that public persons were not joined deliberately and an adverse inference has to be drawn against the prosecution. However, this submission too has no force. The police officials are also competent witnesses and their testimonies cannot be discarded because of their official capacity. Similar proposition has laid down in Tahir v. State, 1996 (3) SCC 338 and Anter Singh v. State of Rajasthan 2004(10) SCC 657 that police officials are competent witnesses and there is no such principle that they are not competent witness or should be supported by the public witnesses. Even same judgment has also been relied upon by the Ld. Counsel in his written arguments and this legal proposition laid down by this judgment has been supporting the prosecution.
31. Not only this, police have some ground realities regarding non- joining of the public persons in the investigation and most of the times public persons are not inclined to join investigation and the observations of the Hon'ble Apex Court made in Appabhai v. State of Gujrat 1988 Supp SCC 241 is relevant that "Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate; but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 38 of 51 investigating agency has to discharge its duties. The court therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The court, however, must bear in mind that witnesses to a serious crime may not react in normal manner. Nor do they react uniformly. The horror-stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner".
In view of the above said observations, it stands proved that the testimonies of the police officials especially PW12, PW16, PW18 and PW19 have duly proved the recoveries of the stolen property from the accused persons beyond doubt.
32. Ld. Counsels for the accused have further argued that the suspicion, however grave it may be, cannot take the place of proof and there is large difference between something that 'may be proved', and something 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. It is argued that this law laid down by Sujit Biswas v. State of Assam dated 28 th May, 2013 is very well applicable in this case also, as the prosecution has failed to prove that accused Neeraj Kumar really purchased the stolen articles / almonds, due to he is not liable u/s 411 IPC. However, this submission of the Ld. Counsel has no force. Admittedly, accused was first arrested for receiving the stolen FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 39 of 51 articles and led to the recovery which cannot be disputed merely because his arrest was dramatic or was on the basis of secret informer. The arrest of the accused could have been disputed if no recovery of stolen article would have been effected, but after such huge recovery, it cannot be said that this recovery was without any basis. If this material recovery was effected at the instance of accused, then he was supposed to tender an explanation as to how this stolen property came into his possession and without tendering any explanation, it shall be presumed that he was either thief or received stolen property. In fact, there is so much evidence against the accused persons, but still they have been claiming benefit of doubt on hypothetical grounds which cannot be given, as benefit of doubt must be genuine. The law to this effect has been laid down that the benefit of doubt is not symbolic to allow in each and every case. It has been held in Sucha Singh & Anr. v. State of Punjab, 2003 7 SCC 643 that "the prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out the evidence in the case if a case is proved perfectly, it is argued that it is artificial; if a case has come inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. The present case is one where there is no trace of doubt that all the circumstances complete the chain and singularly lead to the guilt of the accused persons." Similar proposition has been followed in Jagroop Singh v. State of Punjab, V 2012 SLT 508. As such, this defense is liable to be rejected and accused has not case of granting of benefit of doubt.
FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 40 of 51 In view of the above said law, it stands proved that the reasonable benefit of doubt has to be considered and that should not be hypothetical, but in this case, the defense of the accused persons is hypothetical. As such, all the defenses of the accused persons regarding the recovery of the stolen article are afterthought and are liable to be discarded.
33. However, accused persons have not been charged u/s 411/34 IPC except accused Neeraj Kumar and it is to be seen as to whether they can be convicted for such offence without framing a formal charge. Ld. APP for the state has argued to this effect that it can be done. Admittedly, the accused persons against whom the main charges have not been proved may be convicted for the lesser offence, provided that the lesser offence must be proved against him, and further the conviction without formal charge does not cause any failure of justice to the accused. However, it is necessary to go through the law to this effect. Section 222 of Cr.PC deals with the law by the virtue of which the accused may be convicted for the lesser offence without framing a formal charge and this section is as under:
Section - 222. When offence proved included in offence charged.
(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 41 of 51
(3) When a person is charged with an offence, he may be
convicted of an attempt to commit such offence although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied. Illustrations
(a) A is charged, under section 407 of the Indian Penal Code (45 of 1860 ), with criminal breach of trust in respect of property entrusted to him as a carrier. It appears, that he did commit criminal breach of trust under section 406 of that Code in respect of the property, but that it was not entrusted to him as a carrier. He may be convicted of criminal breach of trust under the said section 406.
(b) A is charged, under section 325 of the Indian Penal Code (45 of 1860 ), with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under section 335 of that Code.
34. Perusal of the above said section would show that Section 222(1) of the Code deals with a case "when a person is charged with an offence consisting of several particulars". The section permits the court to convict the accused "of the minor offence, though he was not charged with it". Sub- section (2) deals with a similar, but slightly different situation where a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it."
FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 42 of 51
35. Now the issue arises as to what is the minor offence for which accused may be convicted without framing of a formal charge. The term 'minor offence' came into interpretation before the Hon'ble Supreme Court of India in case tiled Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577 and it is held that;
16. What is meant by "a minor offence" for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-à-vis the other offence.
36. However, this conviction under minor offence without formal charge is with a caveat that this conviction should not result into 'failure of justice' and what is that 'failure of justice' has been further defined in para 23 & 24 of the above said judgment as under:
23. We often hear about "failure of justice" and quite often the submission in a criminal court is accentuated with the said expression.
Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression "failure of justice" would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment [(1977) 1 All ER 813 : 1978 AC 359 : (1977) 2 WLR 450 (HL)] ). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.
FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 43 of 51
24. One of the cardinal principles of natural justice is that no man should be condemned without being heard, (audi alteram partem). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is of such a nature that non-explanation of it has contributed to penalising an individual, the court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of non-compliance with the principle of natural justice.
As such, with the help of the above said section, the accused can be convicted for lesser offence or cognate offences. Now the issue arises as to what are those conditions which have to be fulfilled to convict an accused for lesser offence and what may be considered such lesser offence.
37. The ingredients of Section 222(2) have been interpreted by the Hon'ble High Court of Delhi in case titled Tej Singh v. State, (2014) 6 HCC (Del) 436 : 2014 SCC OnLine Del 785 and the observation of the Hon'ble Court is as under:
8. It is not permissible in law to punish the accused for a less grave offence if the ingredients of the less grave offence are completely different and distinct from the grave offence with which he has been charged. In other words, the accused should have been charged with a grave offence which would take within its ambit and scope the ingredients of a less grave offence. Usually, the offence of grave nature includes in itself the essentials of a lesser, but cognate offence.
In the normal course of events, the question of grave or less grave offence would arise in relation to the offences falling in the same clause. For instance, there are classes of offences like offences against human body, offences against property and offences relating to cheating, misappropriation, forgery, etc. If a person has been charged for instance under Section 302 IPC, he can be convicted for offence punishable under Section 304 of the Penal Code since the two FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 44 of 51 offences are cognate offences and the ingredients of the offence under Section 304 IPC are included in the offence under Section 302 thereof. Similarly, if a person has been charged say under Section 325 IPC for causing grievous hurt to a person he can be convicted under Section 323 thereof for causing simple hurt. But where the grave offence and the less grave offence fall in different classes, it would be difficult to say that a person charged with a grave offence falling in one class can be convicted for a less grave offence which falls in some other class. The offences punishable under Sections 299 to 377 of the Code fall in Chapter XVI of IPC, under the class "Of Offences Affecting the Human Body" and there is further sub-classification of the offences affecting the human body. On the other hand, the offence punishable under Section 420 IPC falls in Chapter XVII of the Code under the class "Of Offences Against Property". Therefore, an offence against property such as cheating cannot be considered to be less grave offence qua the offence punishable under Section 302 of the Penal Code which falls in an altogether different class, for the purpose of conviction with the aid of Section 222 of the Code of Criminal Procedure.
9. The expression "cognate offences" indicate similarity and common essential features between the offences and they are primarily based on difference of degree. The lesser offence is stated to be related to a greater offence when it shares several of the elements of the greater offence and is of the same class or category. Therefore, where the offences are cognate offences with commonality in their features and evidence is produced which would justify conviction for a cognate but less grave offence, the court would be entitled to punish the accused for the less grave offence since no prejudice is suffered by him on account of such conviction.
In fact, in view of the above said law, it stands proved that the accused persons can be convicted for the lesser offence u/s 411/34 IPC without framing of a formal charge in lieu of similar category of offence affecting property, if the main charge could not be proved.
FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 45 of 51
38. Now the issue arises as to whether accused persons in this case can be convicted u/s 411/34 IPC in lieu of section 392/34 IPC or not. Before deciding the same, it has to be seen as to whether prosecution has proved the necessary ingredients of section 411 IPC or not. To punish someone u/s 411 IPC, the ingredients of section 410 IPC have to be satisfied and the law to this effect has been dealt with in Chandmal v. State of Rajasthan (1976) 1 SCC 621 that it is elementary that there can be no offence of dishonestly receiving stolen property unless the property which is alleged to be the subject of such receiving, answers the description of "stolen property' given in section 410, Penal Code. Only such property possession whereof has been transferred by theft, or extortion or criminal misappropriation or other offences allied to them as mentioned in section 410, falls within the definition of "stolen property".
39. Further, both the Sections 410 and 411 IPC came into interpretation before the Hon'ble Supreme Court in Mir Nagvi Askari v. CBI, (2009) 15 SCC 643 and the observation of the Hon'ble Court is as under:
177. The main accused herein, Hiten P. Dalal, has in addition also been convicted under Section 411 which deals with dishonestly receiving stolen property. The said section has been reproduced below:
"411. Dishonestly receiving stolen property.--Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
178. Stolen property as used in this section has been defined in Section 410:
FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 46 of 51 "410. Stolen property.--Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as 'stolen property', whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property."
Section 410 accordingly defines stolen property. A property is stolen for the purpose of this section when its possession is transferred by theft, extortion, robbery, dacoity or criminal breach of trust or which was obtained under misappropriation committed whether in India or outside.
179. An extended meaning is given to the words "stolen property"
which are used in the four subsequent sections. Not only things which have been stolen, extorted or robbed but also things which have been obtained by criminal misappropriation or criminal breach of trust are within the meaning assigned to these words.
181. Section 411 provides for punishment to the person who dishonestly receives stolen property. The person must have the knowledge that it is a stolen property. We must bear in mind that A-3 had entered into a criminal conspiracy with A-1, A-2 and A-4. He would in that respect be deemed to have known that the property in question was stolen property. This section as also the succeeding sections are directed not against the principal offender e.g. a thief, robber or misappropriator but against the class of persons who trade in stolen articles and are receivers of stolen property. Principal offenders are therefore outside the scope of this section. Accordingly, the FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 47 of 51 conviction of the principal offender is also not a prerequisite to the conviction of the receiver of stolen property under this section. However, in the present case the principal offenders i.e. A-1, A-2 and A-4 have been held guilty of a "criminal breach of trust", therefore, the conviction of A-3 would be even more clearly established from the facts and circumstances of the present case.
182. It must be noted in this respect that this section requires two essentials:
(a) Dishonest receipt or retention of stolen property.
(b) Knowledge or reason to believe at the time of receipt that the property was obtained in the ways specified in the section.
The offence of dishonest retention of property is almost contemporaneous with the offence of dishonestly receiving stolen property. A person who dishonestly receives property and retains it, must obviously continue to retain it.
183. It is the duty of the prosecution in order to bring home the guilt of a person under Section 411 to prove:
(1) that the stolen property was in the possession of the accused; (2) that some person other than the accused had possession of the property before the accused got possession of it; and (3) that the accused had knowledge that the property was stolen.
It has, therefore, in our opinion been conclusively established by the prosecution that A-3 was guilty of an offence under Section 411, since he had dishonestly received stolen property.
40. As such, in view of the above said sections, it stands proved that for punishment of an accused u/s 411 IPC prosecution has to satisfy the criteria of "stolen property" u/s 410 IPC. It is elementary that there can be no FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 48 of 51 offence of dishonestly receiving stolen property unless the property which is alleged to be the subject of such receiving, answers the description of "stolen property" given under section 410 IPC. Only such property possession whereof has been transferred by theft, or extortion of criminal misappropriation or other offences allied to them as mentioned in section 410, falls within the definition of "stolen property". As such, there must be conscious possession of stolen property defined above only then accused may be convicted u/s 411 IPC.
41. Now it is to be seen as to whether the prosecution has proved the above said ingredients to get convicted the accused persons or not. PW1 Shailender Kumar has proved that on 25.12.2007, he was along with his conductor Sunil was carrying 200 bags of almonds to Karawal Nagar from Kundli by his TATA 407 No. DL-1LD-3195 and, at about 11:30/11:45 pm, 4-5 persons apprehended both of them and took them to village Karanda by TSR and throw them away after tying their hands. It is further deposed that those robbers took away the tempo loaded with almonds which was later on recovered abandoned. He has admitted that the robbers also threatened him to kill. PW2 has also corroborated this fact. PW3 Arun Kumar has also proved that Ram Prasad was a contractor working the job of removing shells from the almonds at Karawal Nagar and 200 bags / parcels of almonds loaded on the above said TATA 407 were being transported to Karawal Nagar and were robbed by the robbers. He has further proved that out of 200 robbed bags, 170-175 bags were recovered at the instance of accused namely Neeraj, Satpal, Rakesh, Sumit (now deceased) and Pradeep Sharma and recovery of stolen property from all accused has been proved FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 49 of 51 by PW4 Sarfaraz, PW12 HC Satish Chand, PW16 HC Devender, PW17 Insp. B.P. Singh and PW19 SI Tilomani Bhatt through various seizure memos. Even this recovery has also been proved by PW15 Sh. A.S. Aggarwal, the than Ld. MM who released these recovered 176 bags seized vide seizure memos Ex.PW13/A, Ex.PW4/A, Ex.PW12/E, Ex.PW12/M and Ex.PW12/L to the rightful owner vide order Ex.PW15/C. All the accused persons except accused Neeraj Kumar arrested for this robbery and have also faced trial. The abovesaid recoveries from the above said accused persons stand proved. The documents Ex.PW15/A has proved the production and release of the stolen property recovered out of the possession of the accused persons and the site plan Ex.PW19/B has proved the spot of robbery of tempo. The gate pass of the robbed tempo seized by Ex.PW19/C has also proved that 200 bags of almonds were loaded on the truck which were robbed by the robbers and later on found in possession of the accused persons. As such, by the above said facts, it stands proved that the recoveries made from the accused persons were stolen property / robbed article and accused persons were well aware about this fact but still they concealed the robbed articles consciously and it shall be considered that they received the stolen property. As such, it stands proved that the robbed articles were recovered at the instance of the accused persons namely Satpal @ Kalwa, Rakesh Prasad and Pradeep Sharma and they are liable u/s 411/34 IPC, whereas accused Neeraj Kumar is liable u/s 411 IPC.
42. Keeping in view the facts and circumstances of the case, I am of the considered opinion that prosecution has failed to prove the charges under section 365/392/34 IPC against accused Satpal @ Kallu, Rakesh Prasad and FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 50 of 51 Pradeep Sharma. Even charge under Section 397 IPC against the accused Pradeep Sharma also could not be proved. However, prosecution has successfully proved the charge under section 411 IPC against the accused Neeraj Kumar and offences u/s 411/34 against the accused Satpal @ Kalwa, Rakesh Prasad and Pradeep Sharma and all are hereby convicted u/s 411/34 IPC and section 411 IPC respectively.
Announced in open court (Devender Kumar)
today on 09.08.2021 Additional Sessions Judge-02
(NE): Karkardooma Courts, Delhi
CERTIFICATE:-
It is certified that the arguments in the above said case file have been heard and judgment has also been pronounced through VC in the presence of accused persons, Ld. Counsels for accused and Ld. Addl. PP for State. Accused have explained the outcome of this case in vernacular and they have been directed to complete the procedure laid down by judgment titled Karan v. State forthwith.
(Devender Kumar)
Dt: 09/08/2021 Additional Sessions Judge-02
(NE): Karkardooma Courts, Delhi
09.08.2021
FIR No. 568/07 5 State Vs. Neeraj Kumar etc. 51 of 51