Delhi District Court
The State vs 1. Chand Babu @ Chaman on 26 September, 2014
D.O.D 26.9.2014 FIR No. 706/2008
P.S Prashant Vihar
u/s 395/412 IPC
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 132/14
UID NO . : 02404R0106882013
FIR No : 706/2008
P. S : Prashant Vihar
u/s : 395/412 IPC
The State versus 1. Chand Babu @ Chaman
S/O Munne Khan
R/O H-4/1675-76, Jahangir
Puri, Delhi
2. Mohd Shahid
S/O Sheikh Mohd
R/O Kh. NO 500, Kachchi
Colony, Alipur, Delhi.
3. Yogesh @ Kale S/O Rameshwar
R/O 333, Holambi Kalan, Delhi
4. Rajesh S/O Roshan lal
R/O B-327, Phase I,
Holambi Kalan , Delhi.
Date of committal to session court : 05.06.2013
Date of argument : 26.09.2014
Date of order : 26.09.2014
SC No.132/14 State vs Chand Babu @ Chaman etc (Page 1 of 18 )
D.O.D 26.9.2014 FIR No. 706/2008
P.S Prashant Vihar
u/s 395/412 IPC
JUDGMENT
1. Brief facts of the case as born out from the chargesheet are that in the intervening night of 19-20/9/2008, at about 1:30 am, 4-6 persons trespassed inside a factory premises bearing no. 34/21, Bawana Road, near sector 16, S.P Badli and looted near about 100 footwear dyes from the said factory after locking the guard Sita Ram in a room. It is alleged that robbers took away aforesaid dyes in a Tata 407 bearing no. DL-1LD-7481 . On receipt of this information, Narender Kumar owner of the factory, reached there and made a call to the police, which came to be recorded vide DD no. 3 PP at P.S Prashant Vihar. On receipt of said DD , S.I Chander Shekhar alongwith constable Bharpoor Singh reached at the factory and recorded the statement of Sita Ram (guard). On the basis of said statement, Rukka was prepared and FIR was got registered.
2. It is the case of the prosecution that IO S.I Chander Shekhar visited the house of Jaswant Singh owner of the aforesaid Tata 407 . Said Jaswant Singh pointed out towards the accused Yogesh @ Kale as the driver of the said Tempo . On seeing the police party, accused Yogesh SC No.132/14 State vs Chand Babu @ Chaman etc (Page 2 of 18 ) D.O.D 26.9.2014 FIR No. 706/2008 P.S Prashant Vihar u/s 395/412 IPC @ Kale ran away from there. Said Tata 407 was seized. Thereafter , on receipt of secret information, police party headed by S.I Chander Shekhar reached at Chaman Transport, Sanjay Gandhi Transport Nagar, where accused Chand Babu @ Chaman was found sitting and he got recovered the scrap of looted dyes weighing 2535 Kg . It is also the case of the prosecution that accused Chand Babu @ Chaman led the police party to the shop of accused Shahid to Alipur and accused Shahid got recovered brass portion of looted property weighed about 220 kg. During investigation, accused persons were arrested and on completion of investigation chargesheet came to be filed.
3. Vide order dated 3.4.2013, Ld MM took the cognizance of the offences and subsequently, since the offences u/s 395/412 IPC were exclusively triable by the court of sessions, therefore, vide order dated 05.06.2013, case was committed to the court of sessions .
4. Vide order dated 06.09.2013, ld Predecessor of this court decided the charges against the accused persons. Accused Yogesh @ Kale and Rajesh were SC No.132/14 State vs Chand Babu @ Chaman etc (Page 3 of 18 ) D.O.D 26.9.2014 FIR No. 706/2008 P.S Prashant Vihar u/s 395/412 IPC charged for the offence u/s 395 IPC whereas accused Chand Babu @ Chaman and Mohd Shahid were charged for offence u/s 412 IPC . All the accused persons pleaded not guilty and claimed to be tried.
5. In order to prove its case, prosecution has examined as many as nine witnesses.
6. PW1 Ct. Bharpoor Singh is the witness who was with the IO S.I Chander Shekhar. He is witness to the seizure of Tata 407 bearing no. DL-1LD-7481 which was seized vide memo ExPW1/A.
7. PW2 HC Ashok Kumar was also with the IO S.I Chander Shekhar . He is the witness to the recovery of scrap of dyes weighing around 2535 kg effected from the possession of the accused Chand Babu @ Chaman which was seized vide seizure memo ExPW2/A. He deposed that accused Chand Babu @ Chaman was arrested vide arrest memo ExPW2/B and his personal search was carried out vide memo ExPW2/C.
8. PW3 Mr. Deepak Acharya is a witness who during relevant time was working at Dharam Kanta.
SC No.132/14 State vs Chand Babu @ Chaman etc (Page 4 of 18 )
D.O.D 26.9.2014 FIR No. 706/2008
P.S Prashant Vihar
u/s 395/412 IPC
Prosecution through him tried to prove one receipt which was issued by M/S Ram Dharam Kanta to show that the case property recovered from the possession of the accused persons was weighed at the aforesaid Dharam Kanta.
9. PW4 Ct. Devender Singh is the witness who on 20.9.2008, on receipt of information about the incident in question recorded the said information vide DD no.3 PP ExPW4/A.
10. PW5 Sita Ram is the witness who was working as guard in the said factory. He is shown to have made statement to the police ExPW5/A on the basis of which present FIR was registered . He turned hostile and he was cross examined by ld Chief Prosecutor for the state.
11. PW6 Narender Kumar is the owner of the factory where incident took place. According to his testimony , he is witness to the seizure of Tata 407 bearing no. DL-1L D-7481 and recovery of looted case properties from the possession of the accused Chand Babu @ Chaman and Shahid which were seized vide separate memo's. He identify the case properties as SC No.132/14 State vs Chand Babu @ Chaman etc (Page 5 of 18 ) D.O.D 26.9.2014 FIR No. 706/2008 P.S Prashant Vihar u/s 395/412 IPC ExPX and PX1 to ExPX4.
12. PW7 Ct. Ram Sewak is the another formal witness who was with the IO S.I Chander Shekhar . He is also the witness to recovery of looted property from the possession of accused Chand Babu @ Chaman and Mohd Shahid.
13. PW8 S.I Suresh Chand is the witness who was IO of the case for a very short duration and he has done nothing material in the present case.
14. PW9 S.I Chander Shekhar is the main IO of the present case. He deposed that on the intervening of 19/20.09.08, he was posted at PP Sec.16, Rohini, PS Prashant Vihar, as SI. On that day, on receipt of DD no.3 PP Ex.PW4/A regarding decoity, he along with Ct. Bharpoor(PW1) reached at factory no.34/21, Main Bawana Road, Delhi where he found a guard namely Sitaram(PW5). He recorded statement ExPW5/A of Sita Ram and made endorsement ExPW9/A on the said statement and got FIR registered through Ct. Bharpoor. He further deposed that he prepared the site plan Ex.PW9/B at the instance of Sitaram(PW5) . He is also SC No.132/14 State vs Chand Babu @ Chaman etc (Page 6 of 18 ) D.O.D 26.9.2014 FIR No. 706/2008 P.S Prashant Vihar u/s 395/412 IPC shown to have called the crime team and photographer at the spot.
15. PW9 further deposed that during investigation, he traced the owner of the vehicle which was used by the accused persons and he along with Ct. Bharpoor and Sh. Narender owner of the factory, reached at the house of Jaswant Singh who is the owner of above mentioned TATA 407. Jaswant Singh pointed out towards the accused Yogesh @ Kaley. PW9 deposed that he seized said TATA 407 vide seizure memo Ex.PW1/A and thereafter they returned to PP sector-16, Rohini. PW9 further deposed that on receipt of information about stolen property, he formed a raiding party consisting of HC Ashok Kumar(PW2) , Ct. Ramsewak(PW7) , Ct. Bharpoor(PW1) and Narender Kumar (PW6) owner of the factory and they along with secret informer reached at BG-542, Sanjay Gandhi Transport Nagar at Chaman Transport. On the pointing out of secret informer , accused Chand babu @ Chaman, who was sitting in his shop, was interrogated . The search of the shop was also conducted and Narender Kumar(PW6) identified the stolen articles to be his, which were stolen from his factory. It was found that some dyes used for SC No.132/14 State vs Chand Babu @ Chaman etc (Page 7 of 18 ) D.O.D 26.9.2014 FIR No. 706/2008 P.S Prashant Vihar u/s 395/412 IPC manufacturing shoes were lying in the basement of the said shop and the other parts of the dyes were lying outside the shop . They also raided the basement of the said shop. Those dyes which were lying in the basement as well as outside the shop were duly identified by the factory owner namely Narender and it were seized vide seizure memo ExPW 2/A. PW9 further deposed that accused Chand babu @ Chaman was arrested vide memo ExPW9/B and his personal search was conducted vide memo ExPW2/B. Disclosure statement of accused Chand Babu @ Chaman is ExPW 7/D .
16. PW9 S.I Chander Shekhar further deposed that on 21.9.2008, one day PC remand of accused Chand Babu @ Chaman was obtained and on that day accused Chand Babu led them to the shop of accused Shahid to Alipur , Kacchi colony at the shop of a Kabadi from where accused Shahid, got recovered brass portion of the dye from underground by digging the earth near his shop and the recovered brass was weighed and it was found to be 220 kg. It was seized vide seizure memo ExPW6/A . PW9 further deposed that at that time, owner of the factory namely sh. Narender was also with them and he identified the recovered articles belonging to him which SC No.132/14 State vs Chand Babu @ Chaman etc (Page 8 of 18 ) D.O.D 26.9.2014 FIR No. 706/2008 P.S Prashant Vihar u/s 395/412 IPC were stolen from his factory. Accused Shahid was also arrested vide memo ExPW 7/A and his personal search was conducted vide memo ExPW7/B. Disclosure statement of accused Shahid was also recorded vide Ex ExPW7/C . On 25.09.08, Jaswant Singh, owner of TATA 407 produced accused Yogesh @ Kaley at PP Sec.16, Rohini and after interrogation he was arrested vide memo Ex.PW9/C his personal search was conducted vide memo Ex.PW9/D .
17. PW9 further deposed that on 30.09.08, accused Rajesh present in the court surrendered himself before the court of Ld. MM and on being informed about the same he came to the court of Ld. MM and after interrogation he arrested accused Rajesh vide memo Ex.PW9/G and his personal search was conducted vide memo Ex.PW9/H. Disclosure statement of accused Rajesh was also recorded vide memo Ex.PW9/J .
18. Thereafter, statement of accused persons u/s 313 CrPC were recorded. Accused persons denied the allegations made against them. They did not opt to lead any evidence in their defence.
SC No.132/14 State vs Chand Babu @ Chaman etc (Page 9 of 18 )
D.O.D 26.9.2014 FIR No. 706/2008
P.S Prashant Vihar
u/s 395/412 IPC
19. Ld Counsels for the accused Yogesh @ Kale and Rajesh submitted that there is no evidence against the accused persons. He submitted that public witness Sita Ram(PW5) has turned hostile and he has not identified the accused persons. He further submitted that nothing has been recovered from the possession of the accused Yogesh @ Kale and Rajesh and they have been arrested merely on their disclosure statements. Ld counsel for the accused persons contended that accused Yogesh @ Kale was never the driver on the above mentioned Tata 407 allegedly owned by one Jaswant Singh. They further submitted that police has not investigated the matter properly and in fact some other persons were involved in the commission of crime and not the accused Yogesh @ Kale and Rajesh .
20. Similarly, ld counsel for the accused Chand Babu@ Chaman lal and Mohd Shahid submitted that these accused persons are the bonafide purchaser of the scrap and they were not aware that the the property in question is looted property. It was further argued that only the scrap has been recovered from the possession of above mentioned accused persons. Accordingly, no case is made out against them.
SC No.132/14 State vs Chand Babu @ Chaman etc (Page 10 of 18 )
D.O.D 26.9.2014 FIR No. 706/2008
P.S Prashant Vihar
u/s 395/412 IPC
21. Per contra, ld Adll PP for the state submitted that from the testimony of PW5 , it stands proved that robbery took place in the factory premised bearing no. 34/21, Bawana Road, Delhi. He further submitted that PW6 Narender Kumar is the owner of the said factory and the looted dyes belongs to him which he identify before the court . He further submitted that the recovery of the looted property from the accused Chand Babu @ Chaman and accused Mohd Shahid stands proved . He further argued that prosecution has proved its case against the accused persons.
22. I have heard the ld Addl PP for the state and the ld counsel for the accused persons. I have also perused the record very carefully.
23. First of all take the case as against accused Yogesh @ Kale and Rajesh . They have been charged for the offence u/s 395 IPC. Section 395 IPC provides punishment for Dacoity. Dacoity has been defined u/s 391 IPC, which requires presence of five or more persons to bring the offence within the ambit of this section which is not there in the present case.
SC No.132/14 State vs Chand Babu @ Chaman etc (Page 11 of 18 )
D.O.D 26.9.2014 FIR No. 706/2008
P.S Prashant Vihar
u/s 395/412 IPC
24. PW5 Sita Ram was the guard in the factory.
He is the maker of the FIR and he is shown to have made a statement ExPW5/A to the police on the basis of which present case was registered. He deposed about the incident and looting of the footwear dyes lying in the factory but he is referring the presence of only four persons as he deposed that four persons trespassed inside the factory by jumping over the wall of the factory and committed dacoity and took away looted property in a Tata 407 no. DL -1LD-7481. He is shown to have make a call to the supervisor Dinesh and then Dinesh informed the owner Narender Kumar .
25. PW5 was cross examined by the then ld Chief Prosecutor. He was not cross examined by the State on the point that there were five or more than five persons who were involved in the commission of crime. Meaning thereby, prosecution has not disputed the testimony of PW5 to the effect that four persons had trespassed inside the factory. That being so, the offence of dacoity as defined u/s 395 IPC goes. Now, it is to be seen whether prosecution has been able to prove its case qua the offence 392 IPC , which is a lesser offence ? The answer SC No.132/14 State vs Chand Babu @ Chaman etc (Page 12 of 18 ) D.O.D 26.9.2014 FIR No. 706/2008 P.S Prashant Vihar u/s 395/412 IPC is 'NO' .
26. It is not in dispute that no incriminating material have been recovered from the possession of accused Yogesh @ Kale and Rajesh . PW5 Sita Ram, who was the guard in the premises, did not identify the accused persons . During his cross examination, he denied of having identified accused Rajesh in Rohini Court. Even if for the sake of argument it is presumed that accused Yogesh @ Kale was working as a driver on above mentioned Tata 407, still it would not be sufficient to bring home the guilt against him. At the most it could have been one of the corroborating circumstances and nothing more than that. None of the accused persons has been identified by PW5 Sita Ram, who was the only eye witness in the present case. In these circumstances, it is very difficult to hold that prosecution has been able to prove its case against accused Yogesh @ Kale and Rajesh as there is no material evidence against them . Even otherwise also, ingredients of the offence also remains unproved. Nothing incriminating material have been recovered from the possession of accused Yogesh @ Kale and. Rajesh .
SC No.132/14 State vs Chand Babu @ Chaman etc (Page 13 of 18 )
D.O.D 26.9.2014 FIR No. 706/2008
P.S Prashant Vihar
u/s 395/412 IPC
27. Now let me advert to the case as against
accused Chand Babu @ Chaman and Mohd Shahid who have been charged for the offence u/s 412 IPC . For conviction of an accused u/s 412 IPC , prosecution must prove that accused dishonestly received stolen property knowing or having reasons to believe that the possession has been transferred by commission of dacoity. The gist of the offence is that property has been transferred by commission of Dacoity. As discussed herein above, prosecution could not establish the ingredients of offence of Dacoity as defined u/s 391 IPC. That being so, charges u/s 412 IPC is not sustainable against the accused Chand Babu @ Chaman and Mohd Shahid.
28. That being so, it is to be seen , if ingredients of section 411 IPC stands proved or not because it is well settled law that accused can be convicted for the lesser offence though he has been charged for the grave offence. The offence of receiving stolen property is a lesser offence of the same species as that of section 412 of the IPC. Stolen property has been defined in section 410 IPC and any person who receive stolen property dishonestly , is guilty of section 411 IPC . PW5 Sita Ram is shown to have made statement ExPW5/A to the police SC No.132/14 State vs Chand Babu @ Chaman etc (Page 14 of 18 ) D.O.D 26.9.2014 FIR No. 706/2008 P.S Prashant Vihar u/s 395/412 IPC on the basis of which present FIR was registered. He has categorically stated that dyes were looted by the culprits. PW6 Narender Kumar deposed that on 20.9.2008 , he alongwith IO and police officials reached at BG 542, Chaman Transport , Sanjay Gandhi Transport Nagar at around 5:00 pm. He found that the brass has been separated from the iron part of the dye and the brass was kept in the basement of the aforesaid premises and iron part were lying in a temporary structure adjacent to the said building . He identified the brass parts also. Accused Chand Babu was the owner of the said transport company and he was arrested by the police and the case property was found to be 2535 kg. PW6 further deposed that on 21.9.2008, accused Chand Babu led the police to Shahid to Alipur, Kacchi Colony from where accused Shahid got recovered brass portion of the dye from underground by digging the earth which was seized and it was weighed 220 Kg. PW6 identified the case property as ExPX and ExPX1 to ExPX4. PW6 was cross examined by the ld counsel for the accused persons namely Chand Babu and Shahid but even during his cross examination the testimony of PW6 has gone unchanged and nothing could be elicited from his mouth to disbelieve his testimony.
SC No.132/14 State vs Chand Babu @ Chaman etc (Page 15 of 18 )
D.O.D 26.9.2014 FIR No. 706/2008
P.S Prashant Vihar
u/s 395/412 IPC
29. Moreover, the testimony of PW6 finds
corroboration from the other witnesses who are the
witness to the recovery i.e PW2 HC Ashok Kumar and Ct.
Ram Sewak (PW7) . They deposed that on 20.9.2008,
they alongwith S.I Chander Shekhar(PW9) Ct. Bharpoor Singh and Narender Kumar(PW6) alongwith secret informer reached at Sanjay Gandhi Transport Nagar at the shop of accused Chand Babu @ Chaman . Search of the shop was conducted and some dyes used for manufacturing shoes were found lying in the basement of the said shop and the other parts of the dyes were lying outside the shop. Those dyes were identified by Narender Kumar(PW6) . Those dyes were weighed and it was found to be 2535 kg. Accused Chand Babu was arrested . They further deposed that on 21.9.2008, accused Chand Babu led the police party to the kabadi shop of accused Shahid. Accused Shahid got recovered brass portion of the dye from underground by digging the earth near his shop and the recovered brass was weighed and it was found to be 220 Kg. It was seized and accused Shahid was arrested. On these points , even the testimonies of PW2 HC Ashok Kumar and Constable Ram Sewak (PW7) have gone unchanged and there is no SC No.132/14 State vs Chand Babu @ Chaman etc (Page 16 of 18 ) D.O.D 26.9.2014 FIR No. 706/2008 P.S Prashant Vihar u/s 395/412 IPC material contradiction therein.
30. The incident has taken place on 20.9.2008.
Recovery of looter property has been effected on 20.9.2008. Seizure memo ExPW2/A pertaining to the recovery of case property from accused Chand Babu @ Chaman and ExPW6/A pertaining to the recovery of case property from the accused Shahid stands proved. Narender Kumar (PW6) who is the owner of said property , has identified the same before the court. In these circumstances, ingredients of section 411 IPC stands proved as against accused Chand Babu @ Chaman and Mohd Shahid.
31. In the light of aforesaid discussion, Court is of the view that prosecution has miserably failed to prove its case for the offence u/s 395 IPC against accused Yogesh @ Kale and Rajesh and for the offence u/s 412 IPC against accused Chand Babu @ Chaman and Mohd Shahid. However, prosecution has been successful in establishing the guilt of the accused persons namely Chand Babu @ Chaman and Mohd Shahid in respect of offence u/s 411 IPC. Consequently, accused Yogesh @ Kale and Rajesh stands acquitted for the offence u/s 395 SC No.132/14 State vs Chand Babu @ Chaman etc (Page 17 of 18 ) D.O.D 26.9.2014 FIR No. 706/2008 P.S Prashant Vihar u/s 395/412 IPC IPC and accused Chand Babu @ Chaman and Mohd Shahid stands convicted for the offence u/s 411 IPC.
Announced in the open (Rajesh Kumar Goel) Court today i.e 26.9.2014 ASJ-5, North Rohini Court SC No.132/14 State vs Chand Babu @ Chaman etc (Page 18 of 18 )