Delhi District Court
State vs . Tayyab & Others I.D. No. 367/16 on 30 August, 2018
In the court of Additional Session Judge04, District Shahdara,
(Model/Pilot Project Court), Room No.51, Second Floor, Karkardooma
Courts, Delhi
State Vs. Tayyab & Others I.D. No. 367/16
S.C. No. 124/14 CNR No.DLSH010000742011
FIR No.75/2011 date of institution : 20.12.2014
PS : GTB Enclave decision reserved on : 16.08.2018
U/ss : 395/397/412 IPC, 25 of the A. date of decision : 30.08.2018
Act, & U/s 14 of the Foreigners Act
In the matter of
State ...State
versus
A1.Tayyab @ Chhotu @ Akbar s/o Sh. Sahbuddin
R/o Ansar Vihar, Loni, Ghaziabad, (U.P.).
A2. Ahmad @ Noor Ahmad s/o Sh. Saleem @ Yunus
R/o 1544, Ansar Vihar, Loni, Ghaziabad, (U.P.).
A3. Sahin Mullah s/o Mohd. Hasan Mullah
R/o Krishna Nagar Choraha, P.S. Boitadhara,
District Jolmai, Bangladesh.
A4. Santu Sekh s/o Sh. Khalilul Rahman
R/o Sankibhanga, Murolganj, District Bagerhut, Bangladesh.
A5. Qayum @ Sanjay s/o Siraj Malik
R/o Village and P.O Chotabadura, Pathamura,
PS Murolganj, District Begerhat, Bangladesh. ...Accused
J U D G M E N T
1.1 (Prosecution Case) - This FIR No.75/07.04.2011 was registered u/ss 395/397 IPC (now Ex.Z1) on the statement of complainant Shri Amit Grover (now PW2). He narrates that in the midnight of 07.04.2011, he alongwith his family (comprising his wife Ms. S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 1 of 51 Sonia Grover/PW1, his daughter Poorva Grover/PW5 and son Jayath Grover) was sleeping in bed room at ground floor of H.No.56A, Dilshad Garden, Delhi. His father Sh. Kewal Grover (now PW3) was sleeping in another bed room in the house. At about 3.00 am, all of a sudden the complainant noticed that six men, having mask on their faces, were in his bed room, who started beating the complainant and his wife and also threatened that in case alarm is raised, they will be killed. One of men was a fat person [having height of 57 feet, wearing peach/bhagwaa colour Tshirt and jeans, he was aged about 2530 years, he was carrying silver grey colour (shining) pistol] and he gave indication to his associates, who tied their hands, feet and mouth. The other boy {of age 2025 years, height of 56 feet, who was wearing jeans and green colour Tshirt} was having a revolver in his hand. The third boy was slim in built up [aged about 2025 years, dark complexion (sanwla) wearing black Tshirt Adidas written in white colour and jeans] he was carrying a knife. After tied of all of them, the boy in peach colour shirt inquired complainant's wife about presence of anyone else in the home, her feet were untied, she was taken to the bed room of his father and she was asked to lead him to get bed room opened of complainant's father. Four culprits went to the room of complainant's father, while taking with them the wife of the complainant. After some time, all the said four brought complainant's father in dinning room, (which is in front of bed room of complainant), his hands and feet were also tied and he was thrashed on the floor. Two of the culprits (who were slim and wearing pant shirt) were deputed to keep vigil on the complainant and his family and the other four start searching almirah, S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 2 of 51 cup board and took valuables and in between intervals, they were abusing and threatening the complainant and his family to keep them quiet. Complainant's father was assaulted on his forehead and he was given punch blow on his eye, consequently, he had received the injuries. Complainant was also given punch blow on his left eye, he also received injuries. The complainant was threatened not to make police report and in case he lodges the police report, then they will kill his children. The intruders keep on searching the house for about two hours, they took cash and jewellery. Thence, they firmly tied the complainant and his family. While leaving, the robbers bolted the room from outside and also bolted the dinning room from its outside, they flee away. However, complainant's father managed to untie himself, he went to kitchen and with the help of kitchen knife, the cloth was cut, which was used to tie the hands of his son. Then complainant opened the door of dinning room, immediately the police was informed. On cursory checking, it was discovered that cash of Rs.50,000/Rs.60,000/ from the locker of bed room, complainant's wife's two ear rings, two bangles and two rings; complainant's daughter's two rings and necklace (mala), one silver plate, complainant's laptop were stolen besides robbed off Rs.40,000/ from the room of father of complainant. The complainant could not locate his two mobile phones in the house.
1.2 On receipt of this information (that caller of phone no.22595906 and his father were beaten, the robbers flee away with property), a DD No.7A at 6.15 am dated 07.04.2011 was recorded in the police station and concerned officials were deputed, the call was informed to SI Suman Kumar. Inspector Rajender Singh (now PW24) with staff was S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 3 of 51 already in morning checking duty (as per departure DD No.6A dt. 7.4.2011 at 6 am) and while reaching at the spot, he found the complainant and other family members present, the household articles were ransacked & lying scattered in the house, the almirahs were found lying opened, the latches of main door was found broken, consequently, the crime team and dog squad were called, who inspected the spot. On the basis of statement of complainant (now Ex.PW2/A), the formal FIR No.75/2011 u/ss 395/397 IPC (now Ex.Z1) was registered and investigation was commenced. The crime teams, after its inspection of the spot, gave its reports (Ex.Z4 & Ex PW3/A), whereby eight chance prints were discovered and lifted.
1.3 After checking, the complainant furnished list (dated 7.4.2011) of stolen articles (Ex.PW2/B) and in investigation the spot was inspected and its site plan (Ex.PW2/C) was prepared. Many articles a Tabiz and pieces of clothes were found at the spot, the same were also seized by memo (again Ex.PW2/C and Ex.PW24/B). Complainant's father's kurta was also seized (vide memo Ex.PW3/A). Complainant, his father and his wife were medically examined in hospital, where their MLCs (Ex.PW14/B, Ex PW14/A and Ex.PW16/A respectively) were prepared.
On 17.04.2011, police officer of PS Chiristianganj, Ajmer, Rajasthan of case FIR No.128/2011 came to the Investigating Officer of this case and apprised that on 10.04.2011 they had arrested Mohd. Sahin Mullah and Sentu Sekh ( in the area of PS Baduria, 24 Pargana West Bengal) from whom a laptop, four mobile phone, five wrist watches, two digital camera, silver look one plate, one pair silver like S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 4 of 51 pajeb, bichhua, one kada, one tabiz were recovered visavis it was disclosed by them that it is booty of articles robbed from a house in Dilshad Garden and their accomplices were Tayyab @ Chhotu, Noor Ahmad, Qayyum, Manik, Salim, Chhota Tida and Bada Tida. The Police of Christianganj also handed over some papers/notes of their case to IO. Thus, the production of both Sahin Mullah and Santu Sekh was sought in the court in Delhi, it issued production warrant for 28.04.2011.
In the meantime, on 26.04.2011, information was also received about whereabouts of Tayyab @ Chhotu and the police was able to intercept & apprehend accused Tayyab with a Maruti Car bearing registration No.DL3CF3444. He was arrested and at his instance other accused Ahmad @ Noor Ahmad was arrested, from whom personal search of mobile phone, some papers and cash was recovered. He also got recovered case property of mobile phone Nokia & cash of Rs.5,000/.
The others namely Sahin Mullha and Shantu Sekh were produced in the court in Delhi, they were also interrogated and arrested, the appropriate memos were prepared in respect of the booty already recovered at their instances, which were got transferred to Delhi from PS Christianganj. Accused Tayyab also got recovered one kada and ear tops from his residence besides a desi revolver alongwith two live cartridges from his underconstructed house where he led the police, for which appropriate memos were also prepared. All articles recovered and got transferred were put to judicial TIP, where the same were identified by the complainant and investigation was also carried to verify S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 5 of 51 about the ownership of Maruti car. The other accused could not be arrested, the investigation was kept pending for them. In terms of the conclusion of this investigation, as the accused was found involved vis avis the booty was recovered from each of them, it result into charge sheet u/ss 395/397/412 IPC, u/s 25 of the Arms Act and u/s 14 of the Foreigners Act.
1.4 Later on accused Qayyum was discovered to be arrested by the police of PS Mehrauli, for which appropriate record was collected, production warrants were obtained against him and he was interrogated on 16.05.2012 with the permission of the court and he was arrested in this case. He also got recovered a screw driver, which was used as a weapon of offence. He has been challaned by a supplementary charge sheet u/ss 395/397/412 IPC and u/s 14 of the Foreigners Act.
1.5 Since the offences were triable by the court of session, therefore, the case was committed to the sessions court.
2.1.0 (Charge) - The following charges have been framed by ld. Predecessor under different headings against the accused persons pursuant order dated 17.2.2012: 2.1.1 Accused Qayum @ Sanjay has been charged u/s 14 of the Foreigners Act that on 07.04.2011 from 3.00 am to 6.00 am at H.No.56A, Near MTNL Officer, Dilshad Garden, Delhi he was found present at the abovesaid place without any valid document/passport/visa despite that he was the resident of country Bangladesh. however, he pleaded not guilty and claimed trial.
S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 6 of 512.1.2 Accused Qayum @ Sanjay has also been charged u/s 395 IPC that on 07.04.2011 from 3.00 am to 6.00 am at H.No.56A, Near MTNL Officer, Dilshad Garden, Delhi that he alongwith his associates formed common intention to commit the dacoity and in furtherance of the same, he alongwith his associates committed dacoity and looted jewellery articles, cash and other articles as mentioned in the list of stolen items produced by the complainant, however, he pleaded not guilty and claimed trial.
2.1.3 Accused Qayum @ Sanjay has also been charged u/s 397 IPC that on the said date, time and place, he alongwith his associates, at the time of dacoity, was armed with deadly weapon of pistol, revolver and knives, however, he pleaded not guilty and claimed trial.
2.2. Accused Sahin Mullah has been charged u/s 412 IPC that on 10.04.2011 at 4.40 pm at Village Keshwa, Umaphoshi Pur, PS Baduriya, District 24 Pargana, West Bengal he was found in possession one laptop make Acer, one camera make Canon, one wrist watch make Sonata, which he received or retained knowingly and having reason to believe the same to be the looted property in a commission of dacoity on 07.04.2011 from 3 pm to 6 pm at H.No.56A, Near MTNL Exchange, Dilshad Garden, Delhi belongs to the complainant Amit Grover, however, he pleaded not guilty and claimed trial.
2.3 Accused Santu Sekh has been charged u/s 412 IPC that on 10.04.2011 at 4.45 pm at Village Keshwa, Umaphoshi Pur, PS Baduriya, District 24 Pargana, West Bengal he was found in possession one camera make Polaroid, one silver plate and one mobile phone S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 7 of 51 make Sony Erricson which he received or retained knowingly and having reason to believe the same to be the looted property in a commission of dacoity on 07.04.2011 from 3 pm to 6 pm at H.No. 56A, Near MTNL Exchange, Dishad Garden, Delhi belongs to the complainant Amit Grover, however, he pleaded not guilty and claimed trial.
2.4 Accused Ahmad @ Noor Ahmad has been charged u/s 412 IPC that on 28.04.2011 at unknown time from his house at 154A, Ansar Vihar, Loni, Ghaziabad, (U.P.) he got recovered one mobile phone make Nokia 2700 and cash of Rs.5,000/ at his instance which he received or retained knowingly and having reason to believe the same to be the looted property in a commission of dacoity on 07.04.2011 from 3 pm to 6 pm at H.No.56A, Near MTNL Exchange, Dishad Garden, Delhi belongs to the complainant Amit Grover, however, he pleaded not guilty and claimed trial.
2.5 Accused Tayyab @ Chhotu @ Akbar has been charged u/s 412 IPC that on 29.04.2011 at unknown time at his tenanted house at Ansar Vihar, Loni Ghaziabad, (U.P.) he got recovered one gold bangle and two eartops of gold at his instance, which he received or retained knowingly and having reason to believe the same to be the looted property in a commission of dacoity on 07.04.2011 from 3 pm to 6 pm at H.No.56A, Near MTNL Exchange, Dishad Garden, Delhi belongs to the complainant Amit Grover, however, he pleaded not guilty and claimed trial.
S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 8 of 512.6 Accused Tayyab @ Chhotu @ Akbar has also been charged u/s 25 of the Arms Act, 1959 that on 29.04.2011 at under construction house at Ansar Vihar, Loni Ghaziabad, (U.P.) you were found in possession of one countrymade pistol/katta alongwith two live cartridges without any license or permit, however, he pleaded not guilty and claimed trial.
3.1 (Prosecution evidence and witnesses) - After framing of formal charge, the statement of witnesses started recording. In the middle of evidence, two application both dated 29.7.2017 u/s 294 Cr.P.C. were filed and dealt with to explore admission and denial of documents.
3.2 In that juncture, seven documents were tendered in admission and denial, the genuineness of said documents was not disputed viz. copy of FIR No.75/2011, copy of DD No.6A dated 07.04.2011 at 6.00 am (about departure of police officer in morning checking), copy of DD No.7A dated 07.04.2011 at 6.15 am (receipt of information and instruction to SI Sunil Kumar to attend the call) and scene of crime report (viz. respectively Ex.Z1 to Ex.Z4); PCR form No.1 dated 07.04.2011 & copy of FIR No.128/2011 PS Christian Ganj (Ex.Z6 and Z7), and sanction u/s 39 of the Arms Act (Ex.Z5). The judicial test identification proceedings of case property (i.e. TIP, which was already exhibited as Ex PW2/E during statement of complainant) duly certified by Ld. Metropolitan Magistrate, Delhi was also subject of application u/s 294 Cr PC, however, there were also no reservation to it.
In addition, Ld APP for State also tendered report of ballistic division in respect of pistol and two cartridges (Ex Z8, in respect of S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 9 of 51 countrymade pistol and two cartridges being fire arms and ammunition), report dated 30.11.2011 (Ex.Z9, in respect of photographs P1 to P4 being printouts taken from C.D. made available by Photo Division/CFU from two cameras) and Finger Print Bureau Report dated 09.08.2011 (Ex.Z10, in respect of chance print result) consequently, the corresponding witnesses were not summoned for the formal proof of documents tendered by Ld Addl. PP for State as well as those tendered in admissions and denial of documents inclusive of Ld. Metropolitan Magistrate, Delhi, who conducted TIP.
3.3 The prosecution got examined other 24 witnesses , their names and purpose of examination is detailed hereunder, by classifying with nature of witnesses :
(i) PW2 Sh. Amit Grover (complainant) - to prove that he is author of his complaint, list of articles and of FIR visavis as to how he, his father and other family members faced and experienced trauma of intervening night between 06/07.04.2011 of dacoity committed by the accused persons alongwith their associates, who were equipped with weapons of revolver, knife, screw driver, besides to prove that the articles recovered by the police belongs to him and his family. He had joined judicial TIP of articles.
(ii) PW1 Ms. Sonia (wife of complainant) to prove that she is wife of complainant visavis as to how she, her husband, her children and father in law were traumatized in the intervening night between 06/07.04.2011 of dacoity committed by the accused persons alongwith their associates equipped with weapons of revolver, knife, screw driver, fire lighter; they were abused, threatened. Further, that she was moved to lead to the room of her father in law and then her father in law was brought/dragged, tied and laid on the floor, they were gagged besides to prove that the articles recovered by the police belongs to her and her family. She also participated judicial TIP.
S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 10 of 51(iii) PW3 Sh. Kewal Grover (father of complainant)- to establish that on the day of incident he was sleeping in his room, when the door was got opened and the accused persons, who were masked, attacked upon him and they were carrying revolver, knives and they had beaten him. He was dragged and thrown under the dinning table and then his belongings were removed from drawer and almirah inclusive of cash. PW3 is father of PW2 and father in law of PW1
(iv) PW5 Ms. Poorva (daughter of complainant)- to establish that she is the daughter of complainant PW2 and on the night of incident, she was with her parents in the bed room, when six persons had intrude in their bed room, one of them was having pistol, another was having a knife, which was pointed out towards her and her parents visavis the culprits had removed their belongings at the point of threat and in between, her mother was taken to other room where her father in law was sleeping. They were traumatized by the accused persons. Further, to prove their belongings recovered by the police in the investigation.
**** (va) PW4 SI N.K. Sharma, Senior Finger Print Expert - to prove that he was senior finger print expert in Finger Print Bureau and on 07.04.2011, he attended the call and went to F56, ground floor, Dilshad Garden, Delhi and examined the articles, he was able to lift and develop five chance prints (three from door glass and two from wooden almirah), for which he furnished his reports (Ex.PW3/A and Ex Z10).
(vb) - The other scene of crime report (Ex.Z4) was furnished by ASI Rajinder Singh of Finger Print Expert/Proficient, he had also lifted and developed 8 chance prints.
(vc) Shri Rajinder Kumar, expert, furnished his report u/s 293 Cr P C Ex.Z10) of questionnaire of inmates (I.e PW1, PW2, PW3, PW5 and Jayath) [However, there was no specimens of any of accused taken by the IO/PW24 for examination/comparison, hence there was no report to this effect]. *****
(vi) PW14 Dr. Tinu Gupta, M.S. Chaudhary Eye Centre - for establishing that she examined patients namely Sh. Kewal Grover and Sh. Amit Grover medically in GTB hospital, she gave opinion on MLCs (Ex.PW14/A and Ex.PW14/B) on 16.05.2011 and 26.04.2011 in respect S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 11 of 51 of MLCs dated 07.04.2011. As per ophthalmic nature of injury were 'simple'.
(vii) PW16 Dr. P.K. Phukan, CMO, GTB Hospital - to prove that Dr. Somank Gupta had examined Kewal Grover and Amit Grover on 07.04.2011 with regard to injuries (lacerated wound of 0.5 cm and bruises on right eye and chest of Kewal Gupta and mild bruise on left side of face and leading for left eye of Amit Grover) and swelling and tenderness of both hands of Sonia Grover, bruises on back and chest, multiple abrasion on both hands and bruises on toe) and to prove their MLCs (Ex.PW14/A, Ex.PW14/B and Ex.PW16/A). PW16 appeared for Dr. Somank and Dr. Nitin, since he has seen them in writing and signing. *****
(viii) PW 24/Inspector Rajinder Singh (Investigating Officer) to prove that from the moment an information was received about commission dacoit, he came into action, he visited the spot, did needful inclusive of seizure of articles found lying at the spot, recording the statement of complainant/PW2 and then getting the FIR registered. Further to prove, after registration of FIR he acted as an investigating office and in that phase, not only raiding parties were constituted from time to time but also with the aid and assistance of other police officers, the investigation was progressed in Delhi, Ghaziabad, Ajmer. During that phase the accused persons were arrested, the articles and weapon recovered were seized, they were put to judicial TIP and weapons seized were sent for expert opinion. Even the dog squad, finger print expert/crime team were also called at the spot, it was get inspected through them. The case property. which was recovered by the police of PS Chrishanganj, Ajmer from 24, Pragarna, West Bengal. was get transferred to the police of PS GTB Enclave. Lastly, it result into charge sheet and supplementary chargesheet against the present accused.
(ix) PW13 Ct. Ashok Kumar No.3654 (Driver of SHO/PW4)- to establish that on 07.04.2011, he was posted as constable and he was driver on vehicle No.DL1CJ3897, he was accompanying SHO Inspector Rajender Singh in the morning at Sub Division Seemapuri and when they were on patrolling duty near GTB hospital, it was 6.15 am when SHO had received a call from Control Room and PW13 was directed to reach 56A, Dilshad Garden, Delhi, he rushed to the said place where after sometime, SI Suman and Ct. Satish came with two S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 12 of 51 persons and a lady and they were taken to GTB hospital for their medical examination.
(x) PW7 SI Suman Kumar No.D210 (carrier of tehrrir & copy of FIR)
- for proving that in the intervening night of 06/07.04.2011, he was on night emergency duty and at about 6.15 am, the duty officer gave him information about the incident at H.No.56A, Dilshad Garden, Delhi, thus he alongwith Ct. Satish reached there, where SHO was already present with staff. Further, to prove the circumstances seen by him at the spot, Amit Grover had given his written complaint to SHO/Inspector Rajender Singh, which was endorsed by the SHO and he took the same and got the FIR registered. He remained at the spot and also in the area during investigation of this case, particularly, when complainant gave list of article
(xi) PW19 Inspector Ramesh Tiwadi, Rajasthan Police to prove that on 17.04.2011, he was posted as Sub Inspector in PS Christian Ganj and on the instruction of SHO, the physical custody of Sahin Mullah and Santu Sekh in case No.128/2011 was taken, they were brought to Delhi as there was disclosure of facts of this case and appropriate interrogation notes [Ex.PW19/A, 11 pages (colly.)] were handed over to the police of this case.
(xii) PW15 SI Gopal Singh of PS GTB Enclave - to prove that in the intervening night of 26/27.04.2011, he remained associated in the investigation with Inspector Rajender Singh and HC Vijay Dutt, when there was an information that an offender namely Tayyab @ Chhotu would be coming in Maruti car bearing registration No.DL3CF3444 from Seemapuri side and he will go towards Loni, he may be raided. Accordingly, accused was intercepted, apprehended and arrested, appropriate memos of recovery were prepared to which he is a witness. He also joined the investigation on 28.04.2011 and other accused Ahmad @ Noor Ahmad was arrested, he is also witness to the memos pertaining to Ahmad @ Noor Ahmad. Moreover, the articles got recovered by the accused, he is also witness to the seizure memo effected in his presence. Lastly, to prove the identity of articles recovered during his presence.
(xiii) PW11 ASI Vijay Dutt of PS GTB Enclave to prove that in the intervening night of 26/27.04.2011, he remained associated in the S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 13 of 51 investigation with Inspector Rajender Singh and HC Vijay Dutt, when there was an information that an offender namely Tayyab @ Chhotu would be coming in Maruti car bearing registration No.DL3CF3444 from Seemapuri side and he will go towards Loni, he may be raided. Accordingly, Tayyab was apprehended and arrested, appropriate memos of recovery were prepared to which he is a witness. He also joined the investigation on 28.04.2011. 29.04.2011, 17.06.2011, 16.05.2012 and 17.05.2012. On 28.04.2011, accused Ahmad @ Noor Ahmad was arrested, he is also witness to the memos pertaining to Ahmad @ Noor Ahmad. Moreover, the articles of mobile phone and cash of Rs.5,000/ got recovered by the accused, he is also witness to the seizure memo effected in his presence. On 28.04.2011, the other accused Sahin Mullah and Santu Sekh were produced, they were arrested and memos were prepared inclusive of pointing out memo in his presence. On 29.04.2011, accused Tayyab got recovered a country made pistol and two live cartridges from his house, the same were seized and he is witness to the seizure memo besides the recovery was also made of gold jewellery (a kada and a pair of ear tops), which was seized by memo and he was witness to the memo. On 16.05.2012, when Qayyum was produced in the court and arrested followed by his police custody remand, he remained associated in the investigation, he is a witness to the memos prepared. On 17.06.2011, he took the articles to FSL and deposited them. Lastly, to prove the identity of articles recovered during his presence. ******** .
(xiv) PW20 Inspector Ashok Kumar, Rajasthan Police - for establishing that in the year 2011, he was posted as Sub Inspector in PS Christianganj and they had gone to District 24 Pargana (W.B.) in search of accused persons in FIR No.128/2011 and four culprits were arrested, the case property of this case was recovered from Sahin Mullha and Shantu Sekh in respect of dacoity in Dilshad Garden area. The articles recovered were seized u/s 102 Cr.P.C. by preparing memos of 10.4.2011 Ex.PW20/A and Ex.PW20/B and the property was deposited in malkhana. Further, to identify the accused as well as the property recovered from them.
(xv) PW17 HC Mangal Chand No.HC64, P.S. Civil Line, Ajmer, Rajasthan - to prove that on 13.04.2011, he was working as MHC(M) in PS Christian Ganj, Ajmer and on that day sealed pullanda was S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 14 of 51 deposited, which was recorded in register No.19 at serial No.139 (its extract Ex.PW17/A). On 01.06.2011, he had handed over the articles to SI Bharat Bhushan/PW9 by making appropriate released entries in the register under the instruction of SHO, the properties handed over were seized by police officers of Delhi Police vide seizure memos (Ex.PW8/A, Ex.PW8/B and Ex.PW8/C).
(xvi) PW9 Ex SI Bharat - to prove that on 31.05.2011, he was posted in PS GTB Enclave and he had accompanied HC Vinod Kumar/PW8 to Ajmer, Rajasthan, since property of this case was recovered in FIR No.128/2011 from Santu Sekh and Sahin Mullah. He received the original seizure memos u/s 102 Cr P C by preparing memo (Ex PW8/A), case properties were also seized ( vide memos Ex PW8/B & Ex PW8/C), which was produced before the SHO/IO, who converted into parcel by memo Ex PW8/D and deposited in the malkhana. Thus, the case property was brought to Delhi/in malkhana besides collection of relevant copies of papers/memos.
(xvii) PW8 HC Vinod Kumar to prove that on 31.05.2011, he was posted in PS GTB Enclave and he had accompanied SI Bharat/PW9 to Ajmer, Rajasthan, since property of this case was recovered in FIR No.128/2011 from Santu Sekh and Sahin Mullah. He alongwith PW9 received the original seizure memos u/s 102 Cr P C by preparing memo (Ex PW8/A), case properties were also seized ( vide memos Ex PW8/B & Ex PW8/C), which was produced before the SHO/IO, who converted into parcel by memo Ex PW8/D and deposited in the malkhana. Thus, the case property was brought to Delhi/in malkhana besides collection of relevant copies of papers/memos.
(xviii) PW18 Inspector Devinder Kumar Singh No/D1/1079 (second IO)
- to prove that on 20.07.2012, he was posted as Inspector/Investigation in PS GTB Enclave and he filed supplementary chargesheet in respect of accused Qayyum @ Sanjay.
(xix) PW12 HC Pathan Rashid No.566/East - to prove that on 09.05.2011, he was posted as constable in PS GTB Enclave and he took sealed parcel from malkhana with road certificate No.48/21 and deposited it in FSL, Rohini. ***** (xx) PW10 HC Naresh Singh No.1985/NE - to prove that he was MHC(M) in malkhana PS GTB Enclave and he dealt with the articles S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 15 of 51 and register No.19 on 07.04.2011, 27.04.2011, 28.04.2011, 19.04.2011 and 04.06.2011 when property was either deposited from time to time or lastly the case property was got transferred to Malkhana from Rajasthan, which was recovered at the instance of Sahin Mullah and Shantu Sekh and to prove record maintained in register with appropriate entries (Ex.PW10/A to Ex.PW10/E).
(xxi) PW6 Smt. Anita Malik - to prove that the vehicle bearing registration No.DL3CF3444 was belonging to her father Nau Nihal Singh (since deceased) and she traced the record of delivery that the vehicle was delivered to one Bharat Sharan Singh. Her mother is bed ridden, the vehicle might have been sold by her mother afther death of her father. *********** (xxii) PW21 ASI Mukesh Kumar, Incharge Bangladesi Cell, North East District, Delhi - to establish and prove record pertaining to DD No.29A (Ex.PW21/A) dated 05.05.2008 and another DD No.48 (Ex.PW21/B) with regard to Bangladesh nationals found in India inclusive of Sahin & his family, they were produced before the DCP, FRRO as well as to prove their deportation vide DD No.24 dated 05.05.2008 (Mark A/PW21).
(xxiii) PW22 ASI Om Singh No.112/FRRO, Sewa Sadan, Shahzada Bagh, Delhi - he was summoned to prove record of DD No.24 dated 05.05.2008, however, he reported that vide order of Incharge, FRRO dated 18.05.2016 by order No.608/635 For.HAR (MarkA/PW22) the record from period 17.06.2000 to 27.12.2013 was destroyed.
(xxiv) PW23 SI Birender Singh No.D4543, I.M. Cell, FRRO, Delhi - to prove that Sahin son of Hasan of Bangladesh was produced before the I.M Cell, FRRO and he was detained by order No.948.FOR (IM Cell) and he was deported on 09.05.2008 vide Leave India Notice No.999/FOR (IM Cell), the said Sahin was apprehended visavis the relevant record was maintained (Ex.PW23/A) Then prosecution evidence was closed.
4. (Statement of accused) At this juncture, the statement of all the five accused under Section 313 r/w sec. 281 Cr.P.C., without oath, were recorded while putting them general questions as well as the adverse circumstances appearing against them. However, each of them had S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 16 of 51 denied the allegations explained to them, some of answers were in the form of showing ignorance to certain facts, some of the allegations were denied and others were explained with plea of innocence. They also pleaded that they have been implicated falsely, they are innocent. None of them opted for defence evidence.
5.1 (Final hearing) Sh. Rakesh Mehta, Ld. Addl. Public Prosecutor presented the submissions for State. On the other side, Sh. A.Khan, Advocate [for accused namely Tayyab alias Chhotu and for Sahin Mullah] made the submission, in addition written synopsis being extracts from the evidence of witnesses were filed to highlight the contentions. Sh. Mohd. Salim, Advocate {for accused Noor Ahmad and Santu Sekh} made the submission besides filing the brief written synopsis. Ms. Tanuja Bose, Advocate/Legal Aid Counsel (for accused Qayyum) also filed written synopsis. They shared common as well as different contentions. The case law was also presented.
There are general submission as well as specific to instances or facts in issue, the general submissions are also going to be mentioned and then specific issues will also be taken up while discussing the evidence.
5.2. (Submission on behalf of State) Ld. Addl. Public Prosecutor for State requests that the prosecution has succeeded to prove the charges. There is a dacoity by culprits the present five are out of them, recovery of stolen property from four accused persons, weapons of offence from the accused persons, recovery of pistol with live cartridges & screw driver as well as presence of accused in India despite national of Bangladesh, those charges have been proved by the prosecution.
S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 17 of 51The witnesses have identified the accused as culprit of offences, the case property recovered from accused was also identified and the prosecution case is crystal clear against all the accused persons.
5.3 (Submissions on behalf of accused) Whereas, Ld. Defense Counsels have reservations that it is the duty of prosecution to prove the charges beyond reasonable doubt, however, it has not happened in the present case. Since there are specific formal charges, but the witnesses have not only deposed against their initial statement given to the police but also there are material contradictions, either on the point of charge of dacoity or of identification of the property/hall mark of jewellery, contradictions between the statement of witnesses, inconsistency in own statement of each witness, that is why the witnesses were got confronted with their statements given to the police, which itself speaks a volume that entirely a new case has been put up before the court. The accused persons were shown to the witnesses in police station & in court during investigation and trial and at the residence of complainant and witnesses, under these circumstances there is no value of identification in the trial before court. The judicial test identification proceedings of property (TIP) is also not as per norms as some other case property was produced in the court. The recovery of properties are also surrounded by cloud of doubts, as precautions required and the rule of seizure to be followed have not been complied by the police and the investigating officer. Therefore, the prosecution failed to prove the charges beyond reasonable doubt. When there are couple of views emerging and majority of the views are in favour of the accused, those views are to be accepted.
S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 18 of 515.4 Thus, these are the general outlines of the submissions.
6.1 (Findings with reasoning with discussions) - The contentions of both the sides are considered, keeping in view material in voluminous record either oral statement of witnesses or materials or documentary record or opinions besides the provisions of law and case law presented. Since there are five accused, the circumstances pertains to many places and nature of charges, therefore, each aspect is to be taken specifically, so that all issues raised are determined.
Firstly, contentions on point of charge u/s 395/397 IPC are taken. There are many submissions by respective defence counsels on the plea of charge of dacoity, that it is was exclusively framed against accused Qayyum that too after formal order on point of charge. However, the prosecution has projected as if it was charge against all the five accused. It is to be emphasized that when there is no charge against four accused, the evidence cannot be read against any of them visaviz there was an application for a alteration/amendment in charge (to amend on the basis of statement of witnesses given in court), that application was dismissed by detailed order dated 04.09.2017 and that order has attained finality as it remained unchallenged. Ld. Defence Counsels also request, that otherwise the statement of star witnesses [PW1, PW2, PW3 and PW5] do not spell out any fact with regard to dacoity by accused persons since all the culprits were stated to be under mask, when their faces were not visible and the identity by the witnesses in court is improvements and is by tutoring. It is surrounded by doubts in view of divergent statement, like one PW says that an S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 19 of 51 accused was wearing a shirt of particular colour or other is being identified by sound of his voice or they were shown in police station or in the photographs or in the court or Santu Sekh was not the culprit. There is no inspiring or convincing evidence in the statement of witnesses. PW2 & PW5 also says that they had seen the accused first time in the court after incident. PW3 also says that he is not sure but in his estimate, the accused are the culprits except Santu Sekh. There are also contradictory statement with regard to weapons as in the rukka there were stated to be a grey colour shining pistol with one of the culprit and a knife with the another culprit but in the court they deposed as if there were two pistol or one pistol or knife or knives. This kind of statement or permutation of facts are very weak evidence. Ld. Counsel Ms. Tanuja Bose, Advocate for Qayyum also supplements that through out in the case of prosecution, screw driver was never stated to be a weapon of offence or case of witnesses but it has been introduced at later point of time, the police has shown recovery of screw driver on 17.05.2012, on an open place, whereas the incident was of midnight of 06/07.04.2011. Is it believable that when none of the witnesses have put their case to the police about screw driver with one of the culprits and later on introduction of this fact through the mouth of witnesses, bring a new case of prosecution. Ld. Counsels also submit that PW2 says that the pistol was of shining sliver grey colour, however, the pistol/desi katta shown recovered and produced in the court was of iron, the star witnesses also confirmed that it was not that pistol being carried by culprits; consequently the said iron desti katta does not link the accused with the dacoity. Lastly, the investigating agency has lifted the S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 20 of 51 chance prints from the spot but no specimen of any of the accused were taken by the police because the investigating officer was knowing well that the accused are not the offenders of the crime. There was no judicial test identification parade (TIP) got conducted of accused persons by the IO. In order to fortifies these contentions, Ld. Defence Counsels relied upon:
(i) Dana Yadav @ Dahu & Ors Vs. State of Bihar, JT 2002 (7) SC 68 Held that ordinarily if an accused is not named in the FIR, his identification by witness in court should not be relied upon especially when they did not disclose the name to the police. It would not be safe to place reliance on the identification of the appellant for the first time in court by the witness after an inordinate delay of more than two years from the date of the incident especially when such identification is not corroborated either by previous identification in the test identification parade or any other evidence. Conviction was accordingly set aside and appellant acquitted and directed to be released.
(ii) Rajiv Kumar and Ors. Vs. The State, 1988 CCC 464 (HC) Respectable witnesses did not know the assailants from before their statement in the court, however still there was no identification parade of two of the three accused persons, therefore, in the absence of identification parade, identification in court is of no value.
(iii) Jitender Kumar Saxena @ Guddu Vs. State (Delhi Admin.) AND Ashok Kumar @ Gadri Vs. State (Delhi Admn.) 40 (1990) DLT (SN) 38 Where there is no proper identification of accused and recoveries are doubtful, no conviction for offence of robbery can be recorded on such evidence.
(iv) Staila Sayyed Vs. State 2009 (1) CCC (HC) 286 - (para 2) In our view, these two basic lacunae based on non utilization of scientific evidence to establish the presence and participation of the accused goes to the root of the prosecution case and leaves this court with no other option but to conclude that the prosecution was conscious that the finger prints on the spot and vaginal swab of the deceased if compared to the finger prints and semen of the accused would not have matched.
S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 21 of 51The trial court has unfortunately glossed over these two circumstances, resulting in a gross miscarriage of justice.
(v) Phool Kumar Vs. Delhi Administration, AIR 1975 SC 905 (para 5) The use of a deadly weapon by one offender at the time of committing robbery cannot attract section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon.
6.2 Whereas Ld. Addl. Public Prosecutor for the State requests that the evidence produced in the court is to be read against the accused persons since the witnesses deposed whatever was seen and experienced by them. The dismissal of application for alteration of charge will not dilute the case of prosecution as the stage of trial was in progress when that application was disposed off. There were different perception of witnesses to identify the culprits either because of physical description or of voice of the accused, these traits were physical feature of the accused, they were also cross examined on behalf of accused persons. So far plea of contradiction in the statement are concerned, in fact neither they are contradictions nor inconsistency, since the witnesses deposed in a natural way whatever was seen and experienced by them, their statement was reflection of it, these statements were recorded after lapse of time from the date of incident, some omissions are bound to happen. There is no such evidence to confirm that the witnesses were shown to the accused in the court just to confirm the case by police that accused are to be identified. Therefore, the contentions on behalf of accused carries no weight.
6.3 (Findings on charge of section 395/397 IPC) The detailed submissions of both sides, being stand of each side, is assessed alongwith the evidence on record. The formal charge was framed u/s S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 22 of 51 395/397 IPC against accused Qayyum, there is no such charge against other four accused facing the trial. On perusal of the complaint (Ex.PW2/A) of PW2 to the police as well as the statement of other witnesses given to the police, none of them have asserted any fact that they may identify the culprits or any of the culprits of dacoity, except that the six persons had covered their faces with the cloth, to say they were under mask. The complainant had given physical description of the heights of culprits or type of clothes worn by them or another was also dressed in jean and so on or one of them was fatty person. In the court, witnesses uttered as if they are able to identify the accused on the basis of voice also, since, when the accused was brought at the spot, he was apologizing. However, there is no judicial TIP of any of the accused, particularly of Qayyum against whom charge u/s 395/397 IPC was framed. In supplementary chargesheet in respect of accused Qayyum, there is no record of the judicial custody papers that he was produced in muffled face before the court. There was no charge u/s 395/397 IPC against accused Tayyab, Sahin Mullah, Santu Sekh and Noor Ahmad. Now, the conclusion can be drawn that since there is no judicial TIP against any of the five accused to be said that they were identified during investigation nor any of the witnesses had claimed that they may identify the culprits or any of them on any basis (of description or sound of voice or statures).
It is matter of record of evidence that, as star witnesses say, that they had seen the accused in police station, in court before their statement recorded as well as in the photographs shown by the police during investigation. A star witness also says that he saw the accused S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 23 of 51 persons first time after the incident and another witness was not completely sure whether the accused were the actual culprits. Further, the star witnesses deposed that one of the accused namely Qayyum was having a pistol and also a screw driver but it was never the case of that witness before the police. It is also stated by the witness that Qayyum was brought to the house by the police and he was seen by them. In Montu @ Bahadur Vs. State/NCT of Delhi, 2009 (4) JCC 3074 it was held that whenever the accused is shown to witnesses before conducting the TIP, their identification in the TIP or their subsequent identification in the court, has not been appreciated as a good evidence for their conviction. Moreover, the law laid down in Rajiv Kumar Vs. State (supra) also apply to the situation in hand.
But there is also other evidence with regard to 5 chance prints (Ex.PW3/A) lifted by PW4 SI N.K. Sharma, Senior Finger Print Expert, Finger Print Bureau and 8 more chance prints were also lifted by another expert ASI Rajender Singh, Finger Print Expert - Proficient, by applying the techniques of lifting and developing those chance prints. After collection of these chance prints, it was the duty of PW24 Inspector Rajender Singh to have specimens of the accused persons for its comparison with the chance prints found immediately after commission of the offence. However, that exercise of applying or obtaining or collecting specimen of accused persons was not done by the IO/PW24 Inspector Rajinder Singh but specimens of inmates (PW1,PW2, PW3, PW5 and Jayath son of complainant) were taken and that were sent for examination. To say, there is no scientific evidence established against the accused persons to prove their S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 24 of 51 presence at the time of commission of offence. Under these circumstances when there was no fact stated by the witnesses to identify the culprits, no judicial TIP; the statement of witnesses before the court that they are able to identify the accused as culprits on the basis of their voice etc. is not a valid acceptable evidence visavis there was neither any judicial TIP got conducted for identification of the accused on such basis of physical features or on the basis of voice, the plea of witnesses cannot be construed an evidence against the accused persons or against accused Qayyum. Thus, by taking consolidated stock of the material available in the original complaint to the police and the evidence led through those witnesses, it is proved to the extent that there was a dacoity by six persons at the house of complainant in the night of 07.04.2011 between 3.00 am to 6.00 am, the complaint, his father and other family members were terrorized, abused, beaten, assault, gagged, they received injuries and their belongings & valuables inclusive of cash were robbed by the culprits at the point of weapon like pistol & knife , they were examined in hospital & given treatment but it could not be proved beyond doubt that the accused Qayyum or other four accused were of those culprits who committed the dacoity. There is also no scientific evidence against Qayyum or against other four accused persons. It is held that charge u/s 395/397 IPC could not have been proved. Accused Qayyum is acquitted of that charge u/s 395/397 IPC.
7.1 Now the charges u/s 412 IPC are taken . The prosecution case for recovery of stolen property is against Tayyab, Noor Ahmad, Sahin Mullah and Santu Seikh. The prosecution case with regard to recovery S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 25 of 51 of stolen property from Sahin Mullah and Santu Seikh pertain to village Keshavumaposhipur, PS Baduria, District 24 Pargana, West Bengal, recovery of property from Tayyab is pertaining to his rented house at Ansar Vihar, Loni, Ghaziabad, (U.P.). The recovery of other part property from Ahmad @ Noor Ahmad pertains to H.No.154A, Ansar Vihar, Loni, Ghaziabad (U.P.).
7.2.1 Ld. Defence counsels have a common submission that in order to establish the charge of section 412 IPC, the prosecution is required to establish that there was stolen of property, the stolen property was recovered, it was identified in the judicial TIP as well as the same was proved in trial before the court, however, all these elements are missing in the present case.
7.2.2 Sh. A. Khan, Advocate for accused Tayyab @ Chhotu and Sahin Mullah requests and Mohd. Salim, Advocate for accused Ahmad alias Noor Ahmad and Santu Sekh also requests that the prosecution failed to prove stolen of the property and the property put to judicial TIP was the same property recovered or it was got recovered by the accused visavis the property produced is the property of complainant and other witnesses.
7.2.3 There are vital aspects and by reading them, it reveals that entire case was prepared while sitting in police station. The case of prosecution is that the police of PS Christianganj had recovered many articles on 10.04.2011 from Sahin Mullah and Santu Sekh (through PW20 SI Ashok Kumar & other witnesses, in the investigation of case FIR No. 128/2011 PS Christianganj) and PW20 returned to PS S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 26 of 51 Christianganj on 16.04.2011 and that property was deposited in the malkhana of PS Christianganj on 13.04.2011 visavis information was given to the IO of this case and consequently the case property was collected by PW8 and PW9 on 01.06.2011 by making departure on 1.6.2011 and the same was brought to malkhana of PS GTB Enclave on 04.06.2011. Firstly, the prosecution own record is against it, as per malkhana register No.19 (Ex.PW17/A, of PS Christianganj) the articles were deposited on 13.04.2011, whereas PW20 who made departure on 05.04.2011 from PS Christianganj (as per DD No.243 (Ex.PW20/D1) and returned back on 16.04.2011, then how the case property could have been deposited on 13.04.2011 in malkhana of PS Christianganj?. Secondly, there is no specific information of place of Sahin Mullah and Santu Sekh (of Village Keshavumapothipur), then how the police could reach there. There is no disclosure statements of Shain Mullah and of Santhu Sekh, but police of PS Christianganj claims that investigation was carried on the basis disclosures by accused vis a vis the interrogation notes (Ex PW19/A) are not disclosure statements nor they bear signatures of any of said two. Thirdly, the witnesses says that the case property was in the bags, it was opened and then parcels were prepared, the said bags were also brought to police station, the same were never produced before the court. Fourthly, as per PW17 HC Mangal Chand, MHC(M) PS Christianganj, he had handed over the case property to PW8 and PW9 in sealed condition under was the seal of SI Ashok Kumar but the carriers (PW8 and PW9) say that the case property was given to them in unsealed condition. PW24/IO says that he had deputed PW9 and PW8 just to collect the property from Ajmer, S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 27 of 51 but PW9 SI Bharat had recorded statement of witnesses, he had no authority to record statement of witness or act as an IO vis a vis PW24 was IO but he had not examined those witnesses. What sanctity of case property remains? Moreover, the case of prosecution is that the case property was converted into pullanda and it was put under seal of SHO, however, when the same was produced for judicial TIP, the Road Certificate is silent about any seal impression. In case, the property were seized by Kalandra u/s 102 Cr.P.C. on 10.4.2011, the police was required to produce the Kalandra before concerned judicial Magistrate, that exercise was also not done. There is no proof of ownership of camera Polaroid, Silver plate, mobile phone Sony Erricson, Laptop Acer, camera Cannon and wrist watch Sonata to conclude that the same belonged to the complainant and his family, whereas all these items are easily available in the market and it was not difficult to the police to plant it, it has been planted against the accused. Lastly, the said place of Village Keshavumapothipur, 24 Pargana, West Bengal, is surrounded by places like residential houses, mosque, shops etc., being admitted case of police, but no independent public witness was joined to the proceedings conducted by the police nor there is any evidence that the local police was informed about the same or the local police officials were part of that investigation.
7.2.4 Similarly, the police foisted recovery of one gold bangle/kara and a pair of ear tops against accused Tayyab . Similarly, recovery of cash of Rs.5,000/ and Nokia mobile phone model 2700 against Ahmad alias Noor Ahmad.
S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 28 of 51The recovery of one gold bangle and a pair of ear tops was shown recovered at rented accommodation at Ansar Vihar, Loni, Ghaziabad (U.P.) of accused Tayyab on 29.04.2011 and recovery of pistol on 29.04.2011 at under constructed house in village Ansar Vihar, Loni, Ghaziabad (U.P.). But the prosecution own record demolishes the entire case of police. Accused Tayyab was shown arrested on 27.04.2011 but he was in custody of police much prior to it, its proof is statement of PW24 (Ex.PW24/D1, which he had given in the court of Ld. Additional District & Sessions Judge4, Ajmer) that Tayyab and Noor Ahmad were arrested on 07.04.2011, thus the arrest memo (Ex.PW11/E) of Tayyab showing his time of arrest on 27.4.2011 at 1.25 am, when the police was intercepting and on duty from the night of 26.04.2011 is flimsy. There was a complaint by post on 23.04.2011 (Mark24/Z1, by relative of Tayyab) that Tayyab's sister in law and her brother Nazir and mother Bibi were detained by the police of GTB Enclave from 17.04.2011 illegally, asking to produce Tayyab. Therefore, it clearly shows that Tayyab was already in the custody of police but he was shown arrested at later point of time and consequently the story of driving of Maruti Car by accused Tayyab, its interception by police, arrest of accused Tayyab and then disclosure statement or recovery of articles or a desit katta or leading to the arrest of Ahmad alias Noor Ahmad on 27.4.2011 at 11:45 pm are all also flimsy. Moreover, on the one side the disclosure statement was prepared as if the stolen articles were sold to the jeweller or the same may be get recovered and later point of time no such visit was made to any jeweller but another way S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 29 of 51 was devised to make further disclosure statement or then planting the recovery, they all are creation of the police.
There is no proof of ownership of those articles of complainant or of his family and there are material contradiction in the statement of witnesses, as PW1 says there was hallmark in the bangle/kada and ear tops but PW2 says it was without hallmark and PW3 had no information and PW5 also says there was no hallmark in the bangle and ear tops. When the articles were brought for judicial TIP, there was no seal impression of parcels mentioned in road certificate, thus it is shows that articles brought were other than those lying in malkhana. It also reflects how the articles were planted against the accused.
7.2.5 Ld. Defence counsel for Ahmad alias Noor Ahmad also supplements that when the police had seized Rs.5,000/, there was no mentioning of denomination of notes recovered and there was no specific mark endorsed on the currency notes and there is no proof of ownership of mobile phone Nokia 2700. Cash was also not identified by the prosecution witnesses in trial, even the denomination of notes were not known to the witnesses. Mr. Jayath is son of the complainant but he is not prosecution witness by the prosecution or by the investigating agency, he was also intentionally not impleaded because nothing had happened. It is also appearing from the statement of witnesses as if two more mobile phone were dismantled by the culprits, the said two phones were never seized by the police, the reason is no such events had taken place. PW1 and PW5 were confronted with their entire statements being a new case set up by them before the court.
S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 30 of 517.2.6 The police foisted recovery of a desi katta with cartridges against accused Tayyab first to drag into case of dacoity, however, the prosecution witnesses had denied the desi katta produced was threatened to them by culprits. Otherwise, it is planted by the police by showing its recovery at open place from some underconstruction house, that too alleging that it belongs to accused Tayyab. There is no evidence on any of these aspects or any verification or record that house was belonging him. Either the said rented accommodation of Tayyab or the so called under constructed house, being an open place, is concerned, there is no collection of any fact or proof about the place of abode by the investigating agency, there is no concrete evidence or documentary record collected by IO that the under construction house was of accused Tayyab. There was nonjoining of any independent witness nor any intimation was given to the local police of the Loni, Ghaziabad while visiting in their area from GTB Enclave, no official from the local police was joined as an independent witness, whereas it was the duty of the police for fair and proper investigation. The IO has acted contrary to law. Similarly, no such precaution and compliance was carried in respect of accused Noor Ahmad to join independent and public person as witnesses or the local police, even the police failed to inform the local police in Ghaziabad about visit of police of GTB Enclave to that area.
7.2.7 Ld. Counsels further fortifies their submissions while relying upon : S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 31 of 51
(a) Varghese Vs. State of Kerala, 1998 92) CCC (SC) 304 (para 3) - held, no doubt, PW 18 the Investigating Officer has proved that Mahazar but it clearly appears from the Mahazar that the knife and gloves were found lying in open in a paddy field. In absence of any statement indicating concealment by him of any weapon or other incriminating articles, the statement of A.2 cannot be regarded as sufficient for his conviction. What the evidence of PS18 and the Mahazar prove is that a knife and gloves were recovered in presence of A.2 but that cannot be regarded as sufficient for connection. A.2 with the commission of crime.
(b) Rajbir Vs. State, 2014 [1] JCC 433 - (para 30 and 31) The recovery memo was attested by PW1 and by PW7 (constable Ashok Kumar). The disclosure statement of Rajbir (not to be read in evidence) has revealed that this material was purchased by him on 09.03.2002. He had purchased 14 such bags for Rs.36,000/ out of which 13 bags had been sold and tis bag alone remained.....PW7 admitted that at the time when the recovery was made tea shops were open but no public witness had joined this recovery....
This admission by PW7 is by itself sufficient to demolish this recovery. That apart PW1 has given a still contrary version. His version in his examinationinchief is that accused Ashok had got recovered a bag of metal from his possession. In a later part of his version he has stated that this recovery had been effected from Rajbir. The learned public prosecutor did not crossexamine the witness on this irreconcilable statement. There were admittedly no marks of identification on this goods. Description of the stolen goods was also nowhere given by PW1.
This recovery is not only doubtful but clearly suspicious. Accused Rajbir is also entitled to a benefit of doubt and a consequent acquittal. He is on bail. His bail bond is cancelled; surety discharged.
(c) Mahabir Sao Vs. The State of Bihar, AIR 1972, SC 642 - it is necessary for establishing receipt of stolen property is the property seized from the possession of accused and it must be proved by the prosecution that it was stolen property.
(d) Sukh Deo Vs. State of Raj., S.B. Cri. Appeal No.31 of 1981 dod 12.01.1989 - (para 8) It was the duty of the Magistrate to have called S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 32 of 51 for a Ponchi for mixing it with the recovered Ponchi, and he should not have given that job to the police. In this case, there were all possibilities that the Ponchi which was brought for being mixed with the recovered one, was shown to the prosecution witnesses, before its submissions to the learned Magistrate. This is no argument that the Ponchi for being mixed, was brought in a sealed packet, because, the packet was prepared by the police, so before sealing the packet, there were all possibilities that it was shown to the witnesses. Therefore, the identification parade for the recovered articles, Ponchi, was not held in a legal manner, and hence, no reliance can be placed on it.
7.3. Whereas Ld. APP for the State requests that it is being tried to be projected for non compliance of certain provisions but the circumstances are very much clear from the record itself. The case property was seized by the police of PS Christianganj and later on the production of accused was sought through the court by appropriate application and case property was pertaining to this case, accordingly it was get transferred for which complete entries were made in register of malkhana either at PS Christianganj or of PS GTB Enclave. It would not demerit the case while segregating the case property and the witnesses have deposed what has actually happened, there is nothing appearing that anything was introduced alien to the natural sequence in the case. The accused Sahin Mullah and Santu Sekh were apprehended by immediate raid by police of Ajmer and similarly when accused Tayyab and Noor Ahmad were apprehended, it was also an immediate action by police without wastage of precious time, therefore, the irregularity on the part of Investigating Officer for want of time, as appearing, will not give any benefit to the accused persons. The properties were of certain branded names, no doubt it may be available in the open market but the case property recovered was stolen property as the complainant S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 33 of 51 furnished the list in the initial police report and then list of articles after checking of house, those articles were identified in judicial TIP and there is no challenge to the judicial TIP, consequently the accused will not derive any benefit. So far the places, where police had visited, are inhabitant area but the place of recovery of desit katta was from an under constructed house, all these aspects have been explained by the witnesses and despite their cross examination nothing is coming out to disbelieve them. The articles were old (not brand new), the witnesses have also explained that their ownership papers are not available with them, it will not dilute the case of prosecution as the case is not to establish the title of the articles. So far currency notes are concerned, it has also come on record that during demonetization, the currency notes were deposited in the treasury after permission from the Metropolitan Magistrate, it was done as per law. Consequently the charges u/s 412 IPC has been established against all the accused persons with regard to recovery effected from them.
8.1 (Findings on point of charges u/s 412 IPC in respect of Sahin Mulla and Santu Sekh) It is apparent that many issues have been raised to challenge the veracity of witnesses and proceedings. For discussion and decision, it needs to visit statements of PW20 & PW 17 of PS Christianganj [alongwith records of two kalandra u/s 102 Cr PC Ex PW20/A, Ex PW20/B with record of memos Ex PW20/D1, interrogation notes Ex PW19/A malkakhana register extract Ex PW17/A] and also statements of PW9, PW8, PW24 and PW10 of PS GTB Enclave [alongwith record of handing over of memos and case property S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 34 of 51 Ex PW8/A, Ex PW8/B, Ex PW8/C and seizure memo Ex PW8/D of property by IO & its deposits in malkhana register Ex PW10/A to ExPW10/E].
PW20 alongwith other police officers raided the place of Shain Mullah and Shantu Sekh in Village Keshavumpaposhipur, 24 Pargana, West Bengal, both were present there with four others, they were found having bags and from those bags the properties were seized. It is not a case of first recording their disclosure statement and then discovery of articles but it was case of recovery of property by raid and then they were interrogated, for which interrogation notes (Ex PW19/A) were prepared under the signature of police officer/PW20 and others. The two kalanara u/s 102 Cr P C (Ex PW20/A and Ex PW20/B) of 10.4.2011 of seizure of property were prepared. PW20 in his statement [part of Ex PW20/D1 (colly.) given before Ld Addl. District and Sessions Judge04, Ajmer] admits that he left PS Christianganj on 5.4.2011 and entry no.243 is of his departure on 5.4.2011 for Delhi and his arrival is of 16.4.2011 from West Bengal was endorsed by him, then how he could deposit the case property in Malkhana on 13.4.2011 (extract is Ex PW17/A) is the question raised by learned counsels. Its answer is in the record itself. PW20 in his arrival of 16.4.2011 recorded that after arrest of Sahin Mullah and Santu Sekh and also recovery of property on 10.4.2011, he remained in that area for tracing other culprits but the case property recovered, accused persons apprehended and certain records were forwarded to PS Christianganj. The property was deposited on 13.4.2011 in malkhana of PS Christianganj (its extract is Ex PW17/A). Neither PW20 says nor record of entry of Ex PW17/A S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 35 of 51 shows that the case property was personally deposited by PW20 himself on his return on 16.4.2011, nor he was confronted so specifically in his crossexamination on behalf of accused persons. PW20 had also clarified that he had information of presence of Sahin Mullah and Santu Sekh in the area of 24 Pargana, West Bengal, although he had not so mentioned in his previous statement in Ajmer (Ex PW20/D1). Thus, defence contention, that entries were carried antedate or manipulations were carried, stand disposed off.
It is matter of evidence on record, in this case, that two original kalandra were handed over to police of PS GTB Enclave and it was not presented before concerned Judicial Magistrate of area of 24 Pargana or Ajmer. Section 102 Cr P C prescribes powers of police for seizure of property, which are stolen or suspected to in commission of offence and subsection (3) of sec.102 Cr P C also empowers the police to deal with such property, which includes its production before the court or to handover to others, when the same are not required for investigation by the police seized of such property. The handing over the property to PW8 and PW9 by PW17 is matter of record of evidence, it is within the parameter of section 102 Cr P C. The police has also power to arrest without warrant any person u/s 41 of Cr.P.C., when it is satisfied with regard to suspicious or information of commission of offence or for proper investigation of case. Otherwise, the police of PS GTB Enclave came into picture on 1.6.2011 when property was transferred/handed over, the police of PS GTB Enclave was not present on 10.4.2011 in 24 Pargana West Bengal or prior to it when production warrants were applied for production of Sahin Mulla & Santu Sekh for 28.4.2011.
S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 36 of 51Thus, it would not give any benefit to accused because of handing over of papers/kalandara and property to police of PS GTB Enclave. Whether the property was handed over the properly?, is another issue raised.
8.2 PW17 HC Mangal Chand states that he had handed over the two kalandra and property in sealed condition by recording in the malkhana register (Ex PW17/A) and it was in sealed condition, which were under seal condition of SI Ashok. PW17 is also a witness to those memos prepared by PW9 SI Bharat. Whereas, as per statement of PW8 and PW9, they were handed over two in original kalandara, which were seized by memo Ex PW8/A after sealed pullanda of property were opened, then property was handed over to them, which were also seized by memos [memo Ex PW8/B in respect of (i) one laptopacer,
(ii) two mobile phone samsung black color & lava company red color;
(iii) two wrist watch sonata and quartz, (iv) digital camera canon silver grey color and (v) two pairs of clothes, which were recovered from Shain Mullah] and [memo Ex PW8/C in respect of (i) a mobile phone sony erricson silver color, without battery, (ii) a mobile phone macro mix red color, (iii) three wrist watches - fast rack of light green color dial, Timex of white dial of golden colour base, Time star of silver colour, (iii) camera Polaroid of silver color, (iv) one thali of silver metal in bent condition, (v) a pair of Pajeb of silver like (vi) one bicchiua of silver like
(vii) a kada in bent condition silver like (viii), two pairs of clothes recovered in respect of accused Santu Sekh]. The same were produced before SHO/IO/PW24, in Delhi, who converted them into parcel under seal of "RS", it was seized by memo Ex PW8/D. PW10 had S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 37 of 51 made entry in the register (its extract of 4.6.2011 is Ex PW10/E). Thus, property came to PS GTB Enclave from PS Chirstanganj and it was deposited in Malkahana on 4.6.2011 under seal of 'RS'.
Since, the property was transferred to PS GTB Enclave and memos (Ex PW8/B and Ex PW8/C) do not mention that the property were brought in sealed condition, PWs ( PW8 and PW9) also deposed that sealed parcels were opened, while receiving the property vis a vis malkhana register (Ex PW17/A) also do not mention that property was released under seal of SI Ashok, thus it will not give any benefit to the accused Sahin Mullah and Santu Sekh on this count. So far defence stand, that PW9 SI Bharat was just deputed to collect articles but he recorded statements of witnesses & prepared memos, are concerned, its answer is in section 157 Cr.P.C. about procedure for investigation, that station house officer may depute his subordinate to investigate the matter. Since PW9 alongwith PW8 had gone to PS Christianganj on the instruction of station house officer/PW24, in respect of collection of case property of case, in that authority it is treated to be implied to prepare and sign requisite papers in that regard and to record the statement of concerned witnesses, being within the parameter of investigation, and without it the receipt of articles were not feasible. This contention also stand disposed off.
8.3 The next aspect is 'whether that property recovered has been proved to be of complainant & his family vis a vis it was actually produced in judicial TIP?. Not only this question has been raised on behalf of defence, otherwise it is also to be proved by the prosecution S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 38 of 51 that it was 'stolen property' for the purposes of proof of charge u/s 412 IPC. It needs to revisit the evidence/statement of witnesses. The properties seized by memo (Ex PW8/D) was released for its production before Metropolitan Magistrate on 9.6.2011 for the purposes of TIP, as per entry record in malkaha register (entry is corresponding to entry Ex PW10/E). However, at serial no.1 of road certificate dated 9.6.2011 (Ex PW24/D2), in respect of property being taken for TIP, there is no mentioning of initials of seals on the property. Whether, it was without seal or if not so, then what was the seal?. The test identification proceedings (Ex PW2/E) were recorded on 9.6.2011, the property produced were (inclusive of parcel no.1) under seal impression 'RS', which is duly mentioned in proceedings itself. Moreover, in the seizure memo (Ex PW8/D), the seal used was of 'RS'. Thus, on 9.6.2011 the parcel produced was under seal 'RS', by which seal it was sealed on 4.6.2011.
Witnesses PW1 and PW2 had identified in judicial TIP some of the articles from parcel no.3, particularly a camera Polaroid (PW1/Art.8), a silver plate in bent condition (PW1/Art.6) and mobile phone Sony erricson (PW1/Art.1) [which were recovered from Santu Sekh) and also identified other articles LaptopAcer (PW1/Art.7), camera canon ( also PW1/Art.8) and wrist watch (PW1/Art.3) [which was recovered from Sahin Mullah] as belonging to them. They have not claimed other articles to be belonging them, which was in parcel no.3. PW1, PW2, PW3 and PW5 have also identified the property in trial. Both the witnesses (PW1 and PW2) had also deposed in their crossexamination that they were not shown the articles before conducting of TIP by Ld. S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 39 of 51 Magistrate. It is relevant to refer and mention that the witnesses had deposed the fact about showing them of accused persons in police station or when they were brought at spot or in the court complex, then why such witnesses would deposed otherwise, in case they were also shown the property prior to its judicial TIP. There was judicial TIP of property which were seized from accused Sahin Mulla and Santu Sekh and those properties were also mixed with other similar properties. Moreover, the judicial test identification proceedings (Ex PW2/E, of the such property) are also proved proceedings vis a vis the same are not disputed proceedings.
8.4 To establish nature of stolen property, the prosecution is required to prove that the property was in the possession of or with the complainant, it does not require to prove its ownership or title. Moreover, witnesses deposed that camera Polaroid and Canon were used item/old, its receipts were not available; silver tray/plate was also of old period of marriage of PW3/father of complainant; receipts of mobile phone etc. were not with them since it were received in gifts. It was also deposed that copy of bill (Mark24/Z) of Laptop Acer was not in the name of complainant but in the name of company of its address. Moreover, all these six items were mentioned in the list of articles (Ex PW2/B) besides there is also mentioning of mobile phones, laptop, silver tray in the first complaint (Ex PW2/A) to the police. There was scientific examination of camera as well as photographs/prints (P1 to P4) were also taken out from the Cameras, its report (Ex Z9) and print outs remained unchallenged too.
S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 40 of 518.5. Hence, it stand proved that accused Sahin Mullah was found in possession of Laptop Acer (PW1/Art.7), camera canon ( PW1/Art.8) and wrist watch Sonata (PW1/Art.3) knowingly and having reason to believe to be stolen property, the property was belonging to complainant and his family. Similarly, other accused Santu Sehikh was also found in possession of a camera Polaroid (it is also PW1/Art.8), a silver plate recovered In bent condition (PW1/Art.6) and mobile phone Sony Erricson (PW1/Art.1) knowingly and having reason to believe to be stolen property, this property was also belonging to complainant and his family. The same property was recovered from them, it was the same property subjected to judicial test identification proceedings and witnesses had identified them before Ld. Magistrate on 9.6.2011. The charges u/s 412 IPC have been established against them. Thus Sahin Mullah is held guilty u/s 412 IPC. Other accused Santu Sekh is also held guilty u/s 412 IPC.
9.1 (Findings on point of charges u/s 412 IPC & sec 25 Arms Act in respect of Tayyab and u/s 412 IPC in respect of Ahmad alias Ahmad Noor) - For adjudication of these facts in issue, the relevant witnesses are PW1, PW2, PW3, PW4, PW11, PW15, Ex PW24 and PW10. The corresponding relevant record is seizure memo PW11/O in respect of a Kada and pair of eartops; seizure memo of pistol with cartridges Ex PW11/N r/w its sketch Ex PW11/M r/w site plan of place of recovery Ex PW24/F; seizure memo Ex PW11/G of mobile phone & cash of Rs.5000/, extract of malkhana register Ex PW10/B & Ex S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 41 of 51 PW10/C, TIP Ex PW2/E besides complaint & list of articles (Ex PW2/A and Ex PW2/B).
9.2 Ld. Defence counsel Shri A. Khan, Advocate has contended that when the arrest of accused Tayyab was of 7.4.2011 (as per record of statement Ex PW24/D1 given before the court at Ajmer), since then he was detained illegally, consequently the subsequent proceedings are fabricated, which is also surrounded by doubt and also arrest memo (Ex PW24/A) of 27.4.2011 at 1.25 am or place of arrest or so called place of recoveries at Ansar Vihar, Loni, Ghaziabad, UP. The police has also not verified as to how it was address of Tayyab or under whose tenancy, neither name of landlord was ascertained nor other record. In order to decide these important issues, it needs to appreciate the evidence again.
PW24 was shown his earlier statement (Ex PW24/D1) given by him before the Court at Ajmer stated it was 7.4.2011 when Tayyab and Noor Ahmad were arrested but as per arrest memo (Ex PW11/A), he was arrested on 27.4.2011. By reading entire statement of PW24 or of PW11 or PW15, none of them has been suggested any specific date of arrest of Tayyab or of Noor Ahmad on their behalf. The date of arrest is being inferred of 7.4.2011 from statement Ex PW24/D1 to counter the date of 27.4.2011 mentioned in arrest memos Ex PW11/A (of Tayyab) and Ex PW11/E (of Noor Ahmad), which were prepared by PW24. However, there is another document of application dated 23.4.2011 (Mark24/Z1 colly., tendered in defence to PW24 on behalf of accused Tayyab) by Rahimudin to Hon'ble Chief Justice, High Court of Delhi by S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 42 of 51 post and its copy to area Magistrate and police authorities that Tayyab's wife Kajal (sister in law of Rahimudin), her brother Nazir and her mother Bibi were lifted from their residence in Ansar Vihar, Loni, Ghaziabad, U.P., by police of PS GTB Enclave on 17.4.2011 and detained them illegally to compel to produce Tayyab alias Chhotu before the police. This letter of 23.4.2011 and its contents are self speaking that at the time of sending this letter by post Tayyab was not in the custody of police. Moreover, PW24 also explained that Tayyab was living in the house of his fatherinlaw and this letter dated 23.4.2011 also confirms Tayyab's address of Ansar Vihar, Loni, Ghaziabad, UP. Thus, by reconciling the material on record, it stand proved that Tayyab was not arrested on 7.4.2011 nor he was in custody of police but it he was arrested on 27.4.2011, as deposed and confirmed by the relevant witnesses vis a vis there is no other material on behalf of accused Tayyab to approve some other date, place and manner of arrest. This date 7.4.2011 is date of incident. It is immaterial that car was not of accused Tayyab or PW6's father was owner of Maruti car bearing registration no. DL 3CF 3444 or after his death, PW6's mother might have sold it. The arrest of Ahmad alias Noor Ahmad was subsequent to arrest of Tayyab, thus the plea of Noor Ahmad also stand disposed off that he was arrested on 7.4.2011 as per previous statement (Ex PW24/D1) of Inspector Rajender Singh.
9.3 Another issue is that police case is of selling of jewellery in Chandni Chowk but police did not visit or verify it but instead recorded another disclosure statement by planting the jewellery on Tayyab. Similarly, Counsel Mohd. Salim, Advocate for Ahmad Noor requests S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 43 of 51 that police had also recorded subsequent disclosure statements for convenience and planted cash of Rs.5000/ and phone Nokia 2700 against him. It also requires to scrutinize & assess the evidence.
The disclosure statement dated 27.4.2011 (Ex PW11/C) is of Tayyab, it mentions about two different incident and its booty or his share of bangles, however, in this disclosure statement there was no reference of kada and pair of ear tops, it was disclosed by him in his another disclosure statement dated 28.4.2011 (Ex PW24/E). However, the first disclosure statement dated 27.4.2011 (Ex PW15/B) of Ahmad alias Noor Ahmad mentions about Nokia phone and of cash of Rs.11,000/, out of which Rs.5000/ and phone was kept by him at his residence.
On 28.4.2011 the accused Ahmad alias Noor Ahmad led police to his house and in room in Ansar Vihar, Loni, Ghaziabad, UP and get recovered cash of Rs,5000/ and a mobile phone Nokia, which were seized by memo ExPW11/G, it was prepared by IO/PW24 during the presence of witnesses PW11 and PW15, it was converted into parcel under the seal 'RS'. On 29.4.2011 the accused Tayyab led police and get recovered a kada and pair of ear tops from his residence in Ansar Vihar, for which seizure memo ExPW11/O was prepared by IO/PW24 during the presence of witnesses PW11 and PW15, it was converted into parcel under the seal 'RS'. These recoveries are covered by section 27 of the Evidence Act, 1872. Those articles were also deposited and recorded in register no. 19 (its extract are Ex PW10/C and Ex PW10/D) by PW10 HC Naresh Singh.
S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 44 of 519.4. The properties seized by memos (Ex PW11/O and Ex PW11/G) were released for its production before Metropolitan Magistrate on 9.6.2011 for the purposes of TIP, as per entry in malkaha register (entry is corresponding to entry Ex PW10/E). However, at serial no.2 and 3 of road certificate dated 9.6.2011 (Ex PW24/D2), in respect of property being taken for TIP, there is no mentioning of seal impression of seals.
Again repeated question is, whether, it was without seal or if not so, then what was the seal?. The test identification proceedings (Ex PW2/E) were recorded on 9.6.2011, the property produced were (inclusive of parcel no.1) under seal impression 'RS', which is duly mentioned in proceedings itself. Moreover, in the seizure memos (Ex PW11/O & Ex PW11/G), the seal used was of 'RS'. Thus, on 9.6.2011 the parcels produced were under seal 'RS', by which seal it was sealed on 29.4.2011.
Witnesses PW1 and PW2 had identified in judicial TIP, the articles from parcel no.1, one gold bangle (PW1/Art.5), a pair of ear tops (PW1/Art.4) [which were recovered from Tayyab) and also identified other articles Nokia 2700 model mobile phone (PW1/Art.2) [which was recovered from Ahmad alias Noor Ahmad] as belonging to them. PW1, PW2, PW3 and PW5 have have also identified the Phone Nokia 2700 property in trial besides currency notes of Rs.5000/ by PW1 and PW5 in the court. Both the witnesses (PW1 and PW2) had also deposed in their crossexamination that they were not shown the articles before conducting of TIP by Ld. Magistrate. It is reiterated that the witnesses had deposed the fact about showing of accused persons in police station or when they were brought at spot or in the court complex, then S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 45 of 51 why they would deposed otherwise, in case they were not shown the property. There was judicial TIP of property which were seized from accused Tayyab and Ahmad Noor and those properties were also mixed with other similar properties. In addition, the judicial test identification proceedings (Ex PW2/E, of the such property) are also proved proceedings vis a vis the same are not disputed proceedings.
9.5 With regard to ownership of mobile phone, PWs had already explained that they received it as gifts, their papers are not available with them. It is matter of record that there is no mentioning of serial number or other description of notes in the seizure memo (Ex PW11/G), but a fact surfaced is that there five currency notes of Rs.1000/ each were produced in judicial TIP (Ex PW2/E), which were later deposited in treasury/bank during demonetization. PW1 and PW2 have not mentioned identification of cash in their statement (being part of TIP proceedings Ex PW2/E) but same PW1 had identified it in the court proceedings, without any explanation, as to how she could identify it, when not so stated in TIP proceedings. PW5 had also identified cash in her statement but she was not participant in the judicial test identification proceedings. PW2 had participated in the proceedings but cash was not put to him in evidence and he has not identified it. PW15 says that cash of Rs.5000/currency notes were of Rs.100/ denomination. The recovery of cash of Rs.5000/ could not have been proved, there was no identifying mark or serial numbers of currency notes recorded by IO/PW24 and to that extend of such recovery of cash has not been proved. It is also never the case of Ahmad alias Noor Ahmad that cash was belonging him.
S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 46 of 51There some varied version about the hall mark of jewellery (kada and ear tops) as PW1 says there was hall mark existing but PW3 had no knowledge about it vis a vis PW2 and PW5 say that there was no hall mark in jewellery. Thus, evidence is to be seen. There is no specific name of hall mark is surfacing in oral statement of any of the witnesses, if so existed. In complaint Ex PW2/A there is mentioning of articles robbed off including of bangles but no hall mark is named. In the list of articles Ex PW2/B (sl no.21) there is mention of ear tops golden - one pair, but no hall mark is named. In the seizure memo (Ex PW11/O) of recovery of kada and ear tops, no hall mark is mentioned. Margin witnesses (PW11 and PW15) were also crossexamined, they also deposed that no such hall mark was there on jewellery/kada and ear tops seized. When articles one gold bangle (PW1/Art.5) & a pair of ear tops (PW1/Art.4) were produced during judicial TIP or before the court in trial, there was no such hall mark observed/recorded, [except 22c was found mentioned in inner side of gold bangle when produced in court but it is not a hall mark. Thus, when there is mentioning of articles in the list of robbed articles, the recovered articles (being without bearing any hall marks) were identified in judicial TIP by the star witnesses being personal belongings and they also identified in the trial, then it would not demerit the case just because PW1 had uttered that there was or might be hall marks in the jewellery, particularly all the jewellery articles (robbed off reported in the list and complaint) could not be not recovered.
9.6 Since, these stolen articles recovered are at the instances of accused Tayyab and Ahmad alias Noor Ahmad, that too from their S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 47 of 51 respective residence after their disclosure statements, consequently it will not give any benefit to them that no local witness was joined, since efforts were made by the IO by asking neighbourer but none agreed. The residences of both the accused were in Ansar Vihar, Loni, Ghaziabad, UP which was not only outside the area of PS GTB Enclave but also in another State, but IO/PW24 Inspector Rajender Singh failed to inform or record visits or arrivals in local PS of the area, it is irregularity on his part.
9.7 Thus it is held that it stand proved that accused Tayyab alias Chhotu was found in possession of the one gold bangle (PW1/Art.5) & a pair of ear tops (PW1/Art.4) knowingly and having reason to believe to be stolen property, the property was belonging to complainant and his family. Similarly, other accused Ahmad alias Noor Ahmad was found in possession of a Nokia 2700model mobile phone (PW1/Art.2) knowingly and having reason to believe to be stolen property, this property was also belonging to complainant and his family. The same property was recovered from them, it was the same property subjected to judicial test identification proceedings and witnesses had identified them before Ld. Magistrate on 9.6.2011 and also in the court. The charges u/s 412 IPC have been established against them. Thus Tayyab alias Chhotu is held guilty u/s 412 IPC. Other accused Ahmad alias Noor Ahmad is also held guilty u/s 412 IPC.
9.8 So far recovery of pistol and live cartridges at the instance of Tayyab is concerned, the said place was stated to be an under construction house belonging to accused Tayyab. In the disclosure S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 48 of 51 statement (Ex PW11/C) the fact mentioned is that pistol was used in commission of dacoity of this case and it was concealed in bushes of Khajuri Pushta, which may be get recovered but in another disclosure statement (Ex PW24/E) it was mentioned that the same was lying at under construction house, its site plan (Ex PW24/F) was also prepared lateron. IO/PW24 had claimed, this underconstruction house in Ansar Vihar, Loni, Ghaziabad, UP belongs to accused but there is no record or evidence came that it belongs to accused. Rather in the evidence of relevant witnesses (PW11, PW15 and PW24) different and varied aspect are appearing with regard to demographic position of said house or presence or absence of main gate but its condition was of open place that any one can make ingress or egress conveniently. There is no investigation by IO/PW24 to make further inquiry from mason or labour on other day, if they were not there on that day of visit, to confirm that it was house of Tayyab and recovery was effected from his house. IO had also not inquired from neighbour about that house. Moreover, there are contradictory statements of PW11,PW15 and PW24 on joining of public persons at that place of underconstruction house, one version is that many public persons/passerby had assembled but none was agreed to be part of investigation despite asking of IO and IO had also asked in the neighbour too, no one came forward. The version of IO is that none of public person assembled or spectator was asked to join the proceedings nor any neighbourer was asked to join proceedings or inquired. PW11 is a witness in site plan (Ex PW24/F) of that under construction house but he showed his ignorance of preparing such site plan. These versions are mutually exclusive to each other, had all such S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 49 of 51 witnesses been there together, this material contradiction would not be there. The investigation was on the track of disclosure statement that pistol used in dacoity was concealed, however, star witnesses had not identified it, particularly the pistol branded to them of shining grey colour but the pistol produced in the court was of other color / iron or rough color. Thus rule laid down in Rajbir case (supra) applies to situation in hand and prosecution could not prove recovery of pistol and cartridges from accused Tayyab or at his instance beyond reasonable doubt. Accused Tayyab is acquitted of charge u/s 25 of the Arms Act.1959. [However, it is forfeited to the State being prohibited Arms and ammunition].
10.1 (Charge u/s 14 of the Foreigners Act qua accused Qayyum) - This accused was charged for offence u/s 14 of Foreigners Act and for relevant witnesses examined are PW21, PW22 and PW23, they were cross examined on behalf of accused Qayyum as well as on behalf of accused Sahin Mullah. However, there is no evidence in their statements against accused Qayyum and he had also denied (in reply to questions no.10A and 10B u/s 313 Cr P C) his entry into India without valid permission . Thus, accused Qayyum is acquitted of charge u/s 14 of the Foreigners Act for want of proof of it.
10.2 So far Sahin Mulla is concerned, there was no formal charge framed against him but evidence of PW21 and PW23 was pertaining to record of Shain Mullah. Accused Sahin Mulla explains (in reply to question no.10A and no.10B of his statement u/s 313 Cr PC) that his parents were Bangladeshi but he was born in Delhi vis a vis he admits S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 50 of 51 that he was deported from India, however, he was not remembering date of deportation of 9.5.2008 vide leave India notice no.999/FOR (M Cell) by deportation order dated 5.5.2008.
11.1 Thus all the contentions are disposed off. Accordingly, it is concluded on the basis findings with reasoning (in paragraphs no. 6.3 and 10.1 above), that accused Qayyum is acquitted of Charge u/s 395/397 IPC and he also acquitted of charge u/s 14 of the Foreigners Act.
11.2 Accused Tayyab alias Chhotu is acquitted of charge u/s 25 of the Arms Act, the said pistol and cartridges are forfeited to the State (as per paragraph no.9.8 above).
11.3 The other accused persons namely Tayyab alias Chhotu, Sahin Mullah and Santu Seikh, are held guilty for proof charge u/s 412 IPC against each of them and accused Ahmad alias Ahmad Noor is also held guilty of proof of charge u/s 412 IPC to the extend of its proof, (detailed in paragraph 8.4 and 9.7 above).
The judgment concludes.
Announced in open court today Thursday, Bhadra 8, Saka 1940 (Inder Jeet Singh) Additional Session Judge04 (Shahdara), KKD Courts, Delhi 30.08.2018 Digitally signed by INDERJEET SINGH INDERJEET Location: Shahdara District, Karkardooma SINGH Courts Date: 2018.09.01 16:32:43 +0530 S.C. No. 124/14 State Vs. Tayyab @ Chhotu @ Ankur & Others. Page 51 of 51