Delhi District Court
Sc No. 57546/16 Fir No. 488/13 Ps. Shabad ... vs . Harun Khan @ Haru @ Kalu & Ors. Page No. 1 on 27 July, 2017
IN THE COURT OF DR. ARCHANA SINHA
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
STATE CASE No..........................................57546/16
FIR No. 488/13
PS SB Dairy
U/s: 395/412/34 IPC
State
Versus
1) Harun Khan @ Harun @ Kalu S/o Montu Khan
R/o H. No. 3264, Ram Bazar, Dor Wali Gali,
Ramaije Chowk Mori Gate, Delhi
2) Mohd. Zafar S/o Sh. Mohd. Islam Ansari
R/o H. No. C7, Gali No. 13, Near Kadri Masjid,
Shastri Park, Delhi
Date of institution: 04.02.2014
Judgment reserved on: 20.07.2017
Judgment delivered on: 27.07.2017
ORDER/JUDGMENT:
1) Harun Khan @ Harun @ Kalu S/o Montu Khan Acquitted U/s 395/34 IPC
2) Mohd. Zafar S/o Sh. Mohd. Islam Ansari Convicted U/s 411 IPC
J U D G M E N T
1.In brief, the prosecution case against the accused Harun Khan @ Harun @ Kalu is that on 25.09.2013 at about 3 AM, at godown situated at Khasra No. 25/3, Shahbad Daulatpur, Near Shiva Generator, he along with his associates namely Bablu, Dharamvir, Idrish, Asgar, Sonu, Subodh, Chikna, Dhanish, Jeetu & Babu SC No. 57546/16 FIR No. 488/13 PS. Shabad Dairy State Vs. Harun Khan @ Haru @ Kalu & Ors. Page No. 1 Shekh, in furtherance of his common intentions with them committed theft of copper scrap by voluntarily causing fear of instant death or hurt by wrongful restraining Sh. Mahesh Gaur, Madhu Sudan, Tara Chand and Mukesh Kumar, thereby he committed the offence of dacoity punishable u/s 395/34 IPC.
2. Also that during investigation on 11112013 at C7, Gali No. 13, Near Dadri Masjid, Shastri Park, Delhi accused Mohd. Zafar was found in possession of stolen property i.e. i.e. copper scrap belonging to one Raj Kumar Pasricha, which he dishonestly retained, knowing and having the reason to believe that the said property was transferred to him by commission of dacoity from one Harun Khan, his coaccused, despite the fact that he has reasons to believe that the said property was stolen property, thereby accused Mohd. Zafar had committed the offence under section 412 IPC.
3. Briefly stated facts are that on receiving information vide DD No. 5A on 2509 2013 in PS S.B. Dairy, ASI Parvesh Kumar and Ct. Jai Ram reached at the spot, ASI Pravesh recorded the statement of complainant Mahesh Gaur, prepared rukka and sent the same for registration of FIR and the matter was entrusted upon for investigation to SI Surender, who reached at the spot, prepared site plan and investigated the matter.
As per the statement of Sh. Mahesh Gaur, the complainant on the night of 24 25 September, 2013 he along with one Madhu Sudan was sleeping in a room of godown at Khasra No. 25/3, Village Shahabad Daulatpur, Delhi near Shiva Generator, wherein two guard namely Tarachand and Mukesh Kumar were on SC No. 57546/16 FIR No. 488/13 PS. Shabad Dairy State Vs. Harun Khan @ Haru @ Kalu & Ors. Page No. 2 duty. At about 3 PM he heard a noise and saw that three persons have tied the guards with a rope, he got awaken Madhu Sudan and they saw that the accused had broken the lock of main gate, 34 more persons also entered and out of them three persons entered in their room, one of them caught hold his neck, they threatened them to kill and also tied him and all of them took all the copper scrap lying in the godown. They also robbed the battery of his mobile phone and mobile of Madhu Sudan. After some time, guard Tara Chand came & untied them and he called to his owner from office phone.
On his complaint, an FIR No. 488/13 U/s 395/412 IPC was registered in PS Shahabad Diary. During the course of investigation, on 01112013 an information was received from Crime Branch regarding the arrest of the accused persons, where IO recorded the disclosure statements of the accused, vide which the accused persons admitted the commission of the crime of the present case by them and they were arrested by the IO. During the TIP proceedings accused Harun Khan @ Harun @ Kalu refused to participate in the TIP for his identification by the complainant.
4. On completion of investigation, final report/charge sheet under section 173 Criminal Procedure Code ( hereinafter referred as Code) was submitted against accused Harun Khan @ Haru @ Kalu for the offence u/s 395/34 & against Mohd. Zafar for the offence u/s 412 IPC, in the court for trial of these accused persons.
5. After compliance of the provisions of section 207 of the Code, the case was committed to the court of Sessions against the accused persons namely Harun SC No. 57546/16 FIR No. 488/13 PS. Shabad Dairy State Vs. Harun Khan @ Haru @ Kalu & Ors. Page No. 3 Khan @ Haru @ Kalu for the offences punishable under section 395//34 IPC & against accused Mohd. Zafar for the offences punishable under section 412 IPC and accused persons were sent for trial.
6. Vide order dated 09072014, the Predecessor Court of Sh. Rajesh Kumar Goel, framed charges against accused Harun Khan @ Haru @ Kalu for the offences under section 395/34 IPC & against the accused Mohd. Zafar for the offences under section 412 IPC, to which both of them have pleaded not guilty and claimed trial for the offences charged against them. Hence the trial had commenced.
7. To substantiate its case for the offences alleged, the prosecution has examined a total number of 16 prosecution witnesses viz.,
a) Complainant/Public witnesses Sh. Mukesh Kumar, PW1, Sh. Madhusudan, PW2, Sh. Raj Kumar Pasricha, PW3, Sh. Tara Chand, PW4, Sh. Mahesh, PW5, the complainant, were the material key witnesses of the prosecution to prove the allegations levied against the accused persons and they have exhibited the complaint Ex. PW5/A.
b) Witnesses of Investigation ASI Baldev Singh, PW10 to prove DD No. 5A as Ex. PW10/A, FIR Ex. PW10/B, Endorsement on the rukka Ex. PW10/C, W/HC Sunita, PW12 to prove the DD No. 22A Ex. PW12/A, were the formal witnesses who came to prove the documents on record.
SC No. 57546/16 FIR No. 488/13 PS. Shabad Dairy State Vs. Harun Khan @ Haru @ Kalu & Ors. Page No. 4Whereas Ct. Ravinder, PW6, Ct. Jasram, PW7, Inspector Anil Kumar, PW8, HC Dalip, PW9, ASI Ravinder, PW11, Ct. Ajay, PW13, SI Gurmeet Singh, PW14 & SI Surender, PW15 were the witnesses of investigation and had come to the witness box to prove their roles played by them during the course of investigation and they have exhibited Negatives of photographs Ex. PW6/A (colly.), Photographs Ex. PW6/B (colly.), Crime Scene Report Ex. PW8/A, disclosure statement of accused Harun & Mohd. Zafar Ex. PW11/A & PW11/B in case FIR No. 184/13 PS Crime Branch Malviya Nagar, arrest memos of accused Mohd. Zafar, Harun Khan and Babu Sheikh Ex. PW11/C to Ex. PW11/E in case FIR No. 184/13 PS Crime Branch Malviya Nagar, personal search memo of accused Mohd. Zafar, Babu Sheikh and Harun Khan Ex. PW11/F to Ex. PW11/H in case FIR No. 184/13 PS Crime Branch Malviya Nagar, arrest memo and disclosure statement of accused Harun Khan and Mohd. Zafar in the present case Ex. PW13/A to PW13/D, DD No. 31 Ex. PW14/A, disclosure statement of accused Babu Sheikh Ex.PW14/B, DD No. 6 Ex. PW14/C, rukka Ex. PW15/A, site plan Ex. PW15/B.
c) Other Official Witnesses Sh. Chander Jit Singh, Ld. MM (Traffic), Saket Courts, Delhi, PW16 came to prove the TIP Application Ex. PW16/A, TIP Proceedings Ex. PW16/B, Certificate Ex. PW16/C, Application for obtaining the copy of the TIP Proceedings Ex. PW16/D.
8. On the evidence of the prosecution being closed, the statements of the accused persons namely Harun Khan @ Haru @ Kalu & Mohd. Zafar were recorded under section 313 of the Code through which they denied all the incriminating/material evidence put to them and they pleaded their innocence and false implications by the police official just to solve their case.
SC No. 57546/16 FIR No. 488/13 PS. Shabad Dairy State Vs. Harun Khan @ Haru @ Kalu & Ors. Page No. 59. During the course of arguments, Ld. Addl. PP for the State has submitted that the prosecution has proved the recovery of the robbed property recovered at the instance of the accused Mohd. Zafar, which has been identified by its owner namely Sh. Raj Kumar Pasricha, examined as PW3.
Further that the eye witnesses Sh. Mukesh Kumar, PW1, Sh. Madhusudan, PW2, Sh. Tara Chand, PW4 & Sh. Mahesh, PW5, the complainant have been won over in this case and intentionally did not identify the accused persons in the court, however during the course of investigation, the accused Harun Khan @ Haru @ Kalu has refused to participate in the TIP and an adverse inference may be drawn for his identity.
10. Ld. Counsel for the accused persons has submitted that the material eye witnesses Sh. Mukesh Kumar, PW1, Sh. Madhusudan, PW2, Sh. Tara Chand, PW4 & Sh. Mahesh, PW5, the complainant, have failed to identify the accused persons in the court.
Also that there are material discrepancies, contradictions, improvements and exaggerations in the testimonies of these witnesses and that such discrepancies, contradictions, improvements and exaggerations are fatal to the Prosecution case to entitle the accused persons to benefit of doubt as the prosecution has failed to prove the offences against the accused beyond reasonable doubt.
11. Before proceeding further, to appreciate the evidence on record, as per the settled legal propositions, the prosecution, for establishing the offences alleged under sections 395/34 against the accused Harun Khan @ Haru @ Kalu & under SC No. 57546/16 FIR No. 488/13 PS. Shabad Dairy State Vs. Harun Khan @ Haru @ Kalu & Ors. Page No. 6 section 412 IPC, against the accused Mohd. Zafar, facing trial before this court, had to prove the following ingredients:
For offence under section 395 IPC
i) that the robbery was committed voluntarily causing hurt by accused persons, acting conjointly and
ii) that the above acts were done during the commission of robbery or dacoity.
For the offence under section 412 IPC
i) that the property in question is stolen/robbed one
ii) that the accused received or retained such property dishonestly, knowing or having reasons to believe that the property retained or received have been transferred by the commission of dacoity/robbery.
12. On appreciation of evidence, it is observed that the case of the prosecution is basically relying heavily on the testimony of Sh. Mahesh, the complainant, who was the material star witness of the prosecution and who alleged that the occurrence had taken place with him in the presence of one Sh. Madhusudan and two guards namely Sh. Tara Chand and Sh. Mukesh Kumar.
This witness was examined as PW5 and the relevant extracts of his testimony is extracted below:
'On 25.09.2013, I was working at the godown of Rajkumar Pasricha situated at Khara no. 25/3, Shahbad Daulatpur, near the godown of Jindal, Delhi. I do not remember the name of guard who were working there during that time. On the night intervening 24/25.09.2013, I was sleeping with Madhusudan in a room inside the godown.
At about 2:30/3AM, I heard some noise and I saw that 1012 persons had entered the godown out of which two three persons had entered in my room and they put knife on my neck and threatened us and also asked for the money in our possession. I told them that I did not have anything. Thereafter, they tied my hands and legs as well as legs of Madhusudan and told us not to raise any alarm otherwise we would be stabbed. I somehow untied my hands and thereafter, untied the hands of Madhusudan and thereafter we went outside the room and saw that the locks of the godown were broken and several articles/scrap were found stolen. I telephoned at the house of owner of the SC No. 57546/16 FIR No. 488/13 PS. Shabad Dairy State Vs. Harun Khan @ Haru @ Kalu & Ors. Page No. 7 godown from the landline telephone of the godown. The robbers had even taken away my mobile phone as well as mobile phone of Madhusudan. Sh. Raj Kumar Pasricha, the owner of the godown reached the godown. He telephoned the police at 100 number and police reached the godown. Police had recorded my statement Ex. PW5/A bearing my signatures at point A. I can not identify any of the robbers who had entered the godown.
At this stage, attention of this witness is drawn towards the persons present in the court. Witness replied that he can not identify them as there was darkness at the time of incident. I can not even identify the articles which were robbed by the accused persons.
I was not the storekeeper and my job was only to work like a peon. Vol. I had started working in the said godown threefour days prior to the present incident.
I had not told the police about the place of incident. I do not know whether the police prepared the site plan'.
13. It is observed that PW5, Sh. Mahesh, the complainant, in his complaint Ex.
PW5/A has stated that, On the night of 2425 September, 2013 he along with one Madhu Sudan was sleeping in a room of godown at Khasra No. 25/3, Village Shahabad Daulatpur, Delhi near Shiva Generator, wherein two guard namely Tarachand and Mukesh Kumar were on duty. At about 3 PM he heard a noise and saw that three persons have tied the guards with a rope , he got awaken Madhu Sudan and they saw that the accused had broken the lock of main gate, 34 more persons also entered and out of them three persons entered in their room, one of them hold his neck, they threatened to kill and also tied them and all of them took all the copper scrap lying in the godown. They also robbed the battery of his mobile phone and mobile of Madhu Sudan. After some time, guard Tara Chand came & untied them and he called to his owner from office phone.
14. On appreciation of the evidence of this witness, it is observed that the complainant in his complaint Ex. PW5/A has stated that 'he heard a noise and saw three persons had tied the guards with rope', whereas in his testimony as PW5, he has deposed that 'he heard some noise and he saw that 1012 persons had entered the godown' SC No. 57546/16 FIR No. 488/13 PS. Shabad Dairy State Vs. Harun Khan @ Haru @ Kalu & Ors. Page No. 8 Further, in his complaint he has stated that three persons entered in their room, one of them hold his neck and they threatened to kill them if they raise alarm, whereas in his testimony he has deposed that two three persons had entered in my room and they put knife on my neck and threatened us and also asked for the money in our possession.
Also in his statement Ex. PW5/A, he has stated that the robbers also robbed the battery of his mobile phone and mobile of Madhu Sudan, whereas in his testimony he has deposed that the robbers had even taken away his mobile phone as well as mobile phone of Madhusudan.
Further, in his statement Ex. PW5/A, the complainant stated that he can identify the accused, if produced before him but in his testimony PW5, the complainant has failed to identify the accused and deposed that he can not identify the accused persons as there was darkness, at the time of incident.
15. It is observed that the prosecution is heavily relying on the testimony of Sh.
Mahesh, the complainant for establishing the factum of the manner in which the alleged occurrence of dacoity had taken place at the relevant, date, time and place and also for the identity of the accused persons and also about the number of persons involved.
16. On appreciation of evidence of PW5, Sh. Mahesh, in comparison to his statement Ex. PW5/A given to the police, it is observed that not only the 'manner' of occurrence has been changed but also the number of accused persons who were allegedly involved in the commission of crime and also regarding the use of weapon SC No. 57546/16 FIR No. 488/13 PS. Shabad Dairy State Vs. Harun Khan @ Haru @ Kalu & Ors. Page No. 9 i.e. knife by the accused persons at the time of occurrence to put him on fear but even the witness has deposed that he can not identify the accused persons, because there was darkness at the time of incident.
Thus, certain material discrepancies observed in the testimony of PW5, for not only changing his version regarding the 'manner' of the occurrence that had allegedly been taken place but even about the number of assailants/robbers who robbed the copper scrape, when his versions was compared with his complaint Ex. PW5/A on the basis of which the FIR has been registered.
Further the PW5 has exaggerated in his testimony regarding having of knife by the accused persons & robbing of his mobile phone as in his statement he has not stated about having of knife by the accused persons and he had stated about the robbing of the battery of his mobile and mobile phone of Madhusudan.
17. Also, the complainant has placed the doubt even about the identity of the accused persons. The witness was confronted with portion G to G of his statement/complaint Ex.PW5/A.
18. In case titled as State Vs. Sait @ Krishana Kumar, (2008) 15 SCC 440 , the Hon'ble Apex Court has observed that, 'In case, the complainant in the FIR or the witness in his statement under section 161 Cr.PC, has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded'.
19. Further, the prosecution is also heavily relying on the testimony of Madhusudan, PW2, the alleged eyewitness who was present with the complainant at the time of occurrence for establishing the facts regarding the SC No. 57546/16 FIR No. 488/13 PS. Shabad Dairy State Vs. Harun Khan @ Haru @ Kalu & Ors. Page No. 10 manner in which the alleged occurrence of robbery/dacoity had taken place at the relevant, date, time and place and also for establishing the identity of the accused persons.
20. But similar to PW5, the complainant, it is observed that even Madhusudan, PW2, has resiled from his statement given to the police and it is observed that in the Court, not only the 'manner' of occurrence has been changed in his version but even this witness has also deposed that he could not identify the accused persons, because there was darkness at the time of incident and due to this fact, he could not see their faces.
He had deposed that ' I can not identify those persons who had entered into the godown as it was dark'.
21. The witness was permitted to be crossexamined by the state but he had denied the suggestions of the state that accused Harun Khan present in the court had entered into the said godown along with other persons and they were involved into the commission of the present crime or that he is not identifying the accused persons due to threat or due to the reason that he has been won over by them.
22. Thus, certain material discrepancies observed in the testimonies of PW5 & PW2, who were the star material witnesses of the prosecution on which the case of the prosecution was heavily relying, not only regarding the 'manner' the occurrence allegedly had taken place but even about the number of persons, who robbed the alleged copper scrape.
SC No. 57546/16 FIR No. 488/13 PS. Shabad Dairy State Vs. Harun Khan @ Haru @ Kalu & Ors. Page No. 11Also, their versions were different rather contrary, in comparison to the complaint Ex.PW5/A, on the basis of which the FIR has been registered. Also, both of the witnesses i.e. the complainant examined as PW5 and the eyewitness examined as PW2 have not identified the accused Harun Khan @ Harun @ Kalu in the Court and they were confronted with their previous versions given to the police.
23. Further the prosecution has examined Sh. Mukesh Kumar, PW1 & Sh. Tara Chand, PW4, the alleged eyewitnesses who were working as guards at the godown where the robbery/dacoity has been committed and they had stated in their statements recorded u/s 161 Cr.PC before the police that they have seen the faces of the accused persons, although not clear, but they can identify the accused, if produced before them.
But both these witnesses have also failed to identify the accused Harun Khan in their testimonies given before the court and they have deposed in similar manner that on the intervening night of 24/25.09.2013, they along with their arms were on duty on the aforesaid godown and the gate affixed on the boundary wall of godown was locked and they were inside the boundary. At about 3AM, on 25 092013, they were sitting on chairs and they were feeling some sleep. All of sudden, threefour persons, came from their back side and caught hold them forcibly. They asked them not to raise the hue and cry otherwise they would be killed. Due to which, they got scared. Aforesaid persons tied their hands and also covered our eyes with the clothes lying in the godown and they were made to sit on one side and that there was scuffling between them and the aforesaid accused SC No. 57546/16 FIR No. 488/13 PS. Shabad Dairy State Vs. Harun Khan @ Haru @ Kalu & Ors. Page No. 12 persons but they can not identify their faces as it was dark. Both these witnesses have deposed that none of the accused persons present in the court was one of those, who had entered into the said godown.
24. Due to discrepancies abovementioned in the testimonies of PW5, the complainant, PW2 the eye witness & nonidentification by the other eye witnesses i.e. PW1 & PW4, it could not be established beyond reasonable doubt that the accused Harun Khan @ Harun @ Kalu facing trial before this court was amongst the persons who robbed the copper scrape.
25. Thus, on the face of the complaint Ex. PW5/A and the testimonies of PW1, PW2, PW4 & PW5, the complainant, it could not be established as to whether the accused persons were among the persons who had robbed the copper scrape, on the point of knife.
Rather, there appears material 'contradictions' and improvements and material discrepancies in the testimonies of PW5, the complainant, PW1, PW2 & PW4, the eye witnesses, interse and also from their own versions given in the complaint Ex. PW5/A and their statements recorded u/s 161 Cr.PC given to the police thereby their testimonies do not inspire confidence and lacking credence in view of the law settled in case titled as Sunil Kumar Sambhudayal Vs. State of Maharashtra decided on 11112010 in Criminal Appeal No. 891/2004, wherein the Hon'ble Supreme Court has observed that, 'Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence'.
SC No. 57546/16 FIR No. 488/13 PS. Shabad Dairy State Vs. Harun Khan @ Haru @ Kalu & Ors. Page No. 1326. Further, in case titled as Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334)16, the Hon'ble Supreme Court has observed that, 'The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt'.
27. Thus, on the basis of testimony of complainant Sh. Mahesh, the store keeper of Sh. Raj Kumar Pasricha, his employer, the corroborative testimony of one Madhusudan, his companion staff posted in the godwon of Sh. Raj Kumar Pasricha and with the testimonies of two guards namely Sh. Tara Chand and Sh. Mukesh Kumar examined as PW1 & PW4, though it is established on record that on the intervening night of 25092013 at about 3 AM, 34 persons entered first in their godown, they had tied the hands and covered the eyes of the said guards namely Sh. Tara Chand and Sh. Mukesh Kumar and then also tied the hands of storekeeper Sh. Mahesh and Sh. Madhusudan and with the help of other companions, they have looted the goods i.e. coper scrape ( peetal scrape) lying in the godown.
But all these 4 employees of Sh. Raj Kumar Pasricha in their testimonies as PW1, PW2, PW4 & PW5 have failed to identify the accused Harun Khan @ Haru @ Kalu and they have specifically denied that the accused Harun Khan @ Haru @ Kalu was one of the enterants/assailants/robbers, who looted the case property belonging to Sh. Raj Kumar Pasricha, their employer.
They were extensively put on crossexamination by the State on this aspect but they have denied all the suggestions put to them that they have seen the SC No. 57546/16 FIR No. 488/13 PS. Shabad Dairy State Vs. Harun Khan @ Haru @ Kalu & Ors. Page No. 14 accused Harun Khan as one of the robbers and are not intentionally identifying him, rather the guards namely Sh. Tara Chand and Sh. Mukesh Kumar examined as PW1 & PW4 specifically denied in the court that accused Harun Khan was one of the enterants, who, on the eventful day of occurrence on the intervening night of 2425, September, 2013, had entered into the said godown and thus, both these witnesses have failed to identify the accused Harun Khan as one of the robbers who committed robbery/dacoity of the case property from such godown. Similarly, the complainant Sh. Mahesh examined as PW5, the storekeeper of such godown and his coassociate Sh. Madhusudan, who were present in the godown at the time of occurrence have specifically testified that they did not see the robbers taking away the copper scrape from the godown as it was dark and they could not see any of them and that they can not identify the accused Harun Khan @ Haru @ Kalu in the court, who was present in the court.
28. Thus, the identification of accused Harun Khan @ Haru @ Kalu could not be established on record. Therefore, for the want of identification of the accused Harun Khan as one of the robbers allegedly involved in commission of the crime of dacoity and also on the aspects of total number of persons involved, the prosecution has miserably failed to prove offences under section 395/34 IPC against the accused person Harun Khan @ Haru @ Kalu beyond reasonable doubts.
29. Further, as per the settled legal propositions of law, in the case titled as Sharad Birdhichand Sarda Vs. State of Maharastra, cited as AIR 1984 SC 1622, the SC No. 57546/16 FIR No. 488/13 PS. Shabad Dairy State Vs. Harun Khan @ Haru @ Kalu & Ors. Page No. 15 Hon'ble Apex Court has laid down the tests of certain pre−requisites before recording conviction in a criminal trial, which are as under:
i). The circumstances from which the conclusion of guilt is to be drawn 'must or should' and not 'may be' fully established.
ii). The facts so established should be consistent only with the hypothesis of the guilt of the accused persons & these established facts should not lead or be explainable on any other hypothesis except that the accused are guilty;
iii). The circumstances should be of conclusive nature and tendency;
iv). They should exclude every possible hypothesis except the one to be proved; and
v). There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
In the instant case the prosecution could not prove the guilt of the accused Harun Khan @ Haru @ Kalu to the extent of moral certainty of his involvement as one of the robbers of the crime.
30. Thus, on the basis of abovenoted facts and circumstances & in the settled proposition of law, the court is of the considered view that the ingredients necessary to prove the offences under section 395/34 IPC against accused Harun Khan @ Haru @ Kalu are not proved by the prosecution beyond reasonable doubt.
Thus, a benefit of doubt is given to the accused Harun Khan @ Haru @ Kalu for the offences punishable u/s 395/34 IPC.
31. Consequently, the accused namely Harun Khan @ Haru @ Kalu is acquitted of the charges for the offences U/s 395/34 IPC.
32. So far as the charges u/s 412 IPC against the accused Mohd. Zafar is SC No. 57546/16 FIR No. 488/13 PS. Shabad Dairy State Vs. Harun Khan @ Haru @ Kalu & Ors. Page No. 16 concerned, it is established on record through the testimony of ASI Ravinder, PW11 and SI Gurmeet Singh, PW14 that vide DD No. 31 Ex. PW14/A, on secret information, by a raiding party comprising of SI Ravinder, SI Braham Dev, HC Ajit, HC Surender, HC Pradeep, Ct. Praveen, Ct. Satbir and Ct. Pushpender, accused Mohd. Zafar along with other 4 persons was arrested from Prem Bari Pul, Ring Road, near foot over bridge, by Crime Branch and he made disclosure statement Ex. PW11/B regarding receiving of the stolen property of the present case for a consideration of Rs. 55,000/.
33. Also in consonance of such disclosure statement, when SI Surender, IO of the present case received information vide DD No. 22A Ex. PW12/A regarding the arrest of the accused person Harun Khan and Mohd. Zafar and about the disclosure of commission of crime of the present case vide FIR no. 488/13 PS Shahbad Dairy, he had arrested both the accused persons vide arrest memo Ex. PW13/A and PW13/B with the permission of court as they were produced in the court on that date and accused Mohd. Zafar made disclosure statement Ex. PW13/D when the accused Mohd. Zafar was taken on PC remand and at his instance from his house, some of the copper scrape( case property of this case) of weight of 10 KG was recovered from his possession vide seizure memo Ex. PW9/B and the same was deposited with Malkhana Mohrar of PS Shahbad Diary and when such case property was subjected to TIP ( Test Identification Parade), the same was correctly identified by Sh. Raj Kumar Pasricha, the owner of the case property.
These facts were established from the testimony of PW15 SI Surender, the IO SC No. 57546/16 FIR No. 488/13 PS. Shabad Dairy State Vs. Harun Khan @ Haru @ Kalu & Ors. Page No. 17 and the same was corroborated with the testimony of HC Dalip, PW9, who had deposed that he joined the investigation with SI Surender on 11112013 and the accused Mohd. Zafar was arrested by the IO with the permission of the court and was taken on one day PC remand and that the accused Mohd. Zafar had led both the police official i.e. himself and SI Surender at his house at Shastri Park and pointed out one plastic bag (katta) and got recovered the copper scrap and the said bag was of about 10 kg and that the case property of this case was seized vide seizure memo Ex.PW9/A and was sealed with the seal of SS. Also such case property was duly identified by this witness and also the accused Mohd. Zafar was also correctly identified by him.
34. On appreciation of evidence of the witnesses PW9 and PW15, it is observed that both SI Surender PW15 and HC Dalip PW9 were corroborative to each other on the factum of arrest of the accused Mohd. Zafar with permission of court, granting of one day PC remand of this accused by the court, disclosure statement made by him and leading to these police officials by accused Mohd. Zafar at his house and also on his pointing out, the recovery of stolen articles from his house was effected, vide seizure memo Ex. PW9/A. Further SI Surender, PW15 has testified that the case property was subject to TIP by one Sh. Raj Kumar Pasricha, the owner of the case property, who had correctly identified the case property in the court during TIP proceedings. The identification of the case property by the owner, PW3 has been corroborative in his testimony as PW3 to prove that the property recovered from accused Mohd. Zafar was belonging to him that was lying in his godown when it SC No. 57546/16 FIR No. 488/13 PS. Shabad Dairy State Vs. Harun Khan @ Haru @ Kalu & Ors. Page No. 18 was stolen/robbed/looted and that he was the owner of such property. Witnesses PW9 & PW15 remained unimpeached being their testimonies remained unrebutted despite the opportunity given to the accused for their cross examination.
Also on the point of ownership of the case property, so recovered from accused Mohd. Zafar, even the testimony of PW3 Sh. Raj Kumar Pasricha remained unchallenged and unrebutted.
35. Thus, prosecution has duly established on record that the case property of this case i.e. copper scrape was belonging to one Sh. Raj Kumar Pasricha, that was lying in his godown at the time of occurrence of alleged robbery over such property. Such case property was duly identified by the owner of such case property during the TIP proceedings in the court.
36. Further, it is also established on record through the testimonies of ASI Ravinder, PW11 and SI Gurmeet Singh, PW14 that accused Mohd. Zafar was arrested by the team of 8 police officials of the Crime Branch, thereupon an information was given to the concerned IO SI Surender about the apprehension of accused Mohd. Zafar vide DD No. 22A Ex. PW12/A, IO Surender had arrested the accused with permission of the court when he was produced in the court in FIR No. 184/13 and on Kalandra and arrested the accused Mohd. Zafar vide arrest memo Ex. PW13/B, who made disclosure statement Ex. PW13/D and in pursuance of such disclosure statement, he had led the police party during his PC remand to his house and from his house at Sashtri Nagar, the case property of this case i.e. coper scrape was recovered from his possession vide seizure memo Ex. PW9/B. SC No. 57546/16 FIR No. 488/13 PS. Shabad Dairy State Vs. Harun Khan @ Haru @ Kalu & Ors. Page No. 19
37. Thus, not only the factum of ownership of the case property has been established by the prosecution with one Raj Kumar Pasricha but it is also established on record that accused Mohd. Zafar made disclosure statement in connection with receiving of such property and the same was recovered from his possession from his house vide seizure memo Ex. PW9/A.
38. It is observed that in the instant case, the offence u/s 395 IPC is not made out against accused Harun Khan from whom the alleged property was received by the accused Mohd. Zafar nor the number of robbers are established on record to take the case within the ambit of dacoity but the recovery of the stolen goods is duly proved against the accused Mohd. Zafar, to attract the offence u/s 411 IPC instead of section 412 IPC as it could not be established on record that 'the property was the property connected with the crime of dacoity'.
39. Nothing has come on record to the contrary that such property, that was recovered from his house, was belonging to the accused Mohd. Zafar or that he did not know or was having any reason to disbelieve that the case property was not the stolen one.
No defence has been adduced to show the legal possession of such case property by the accused Mohd. Zafar in his house when it was recovered in consonance of his disclosure statement rather his disclosure statement regarding the receiving of stolen property that was recovered from his house in his possession is admissibleinevidence under section 27 of the Indian Evidence Act to establish that he has received such property having reasons to believe that SC No. 57546/16 FIR No. 488/13 PS. Shabad Dairy State Vs. Harun Khan @ Haru @ Kalu & Ors. Page No. 20 same was stolen property, thereby the prosecution has successfully proved the offence punishable under section 411 IPC against accused Mohd. Zafar.
40. In view of the foregoing discussions & conclusions, the accused Mohd. Zafar is hereby convicted for the offence punishable under section 411 IPC.
41. Accused Mohd. Zafar is informed that he has a right of appeal against his conviction.
Announced in the open Court (Dr. Archana Sinha)
th
on this 27 day of July 2017 Addl. Sessions Judge02,North
Rohini Courts, Delhi
27.07.2017
SC No. 57546/16 FIR No. 488/13 PS. Shabad Dairy State Vs. Harun Khan @ Haru @ Kalu & Ors. Page No. 21