Delhi District Court
State vs 1. Sanjayjha @ Ajju on 24 October, 2007
Page No. 1
IN THE COURT OF SH. V.K.BANSAL:
ADDL. SESSIONS JUDGE:
NEW DELHI
IN SESSION CASE NO 5/2003
FIR NO. 395/2002
P.S. Defence Colony
U/s 395/398/120-B/34 IPC and 25 of Arms Act.
State Versus 1. SanjayJha @ Ajju
S/o Shri Kameshwar
R/o Village Ganga Dharmagatpur
Post Pilkhi, Police Station Safra,
District Mujaffarnagar,
Bihar.
2. Bitto Kumar @ Vikas
S/o Shri Chand
R/o House No. 115, Kumharovli Gali
Balmiki Basti, Muradnagar,
District Ghaziabad, U.P.
3. Mool Chand
S/o Shri Manak Chand
R/o Village Bandipur, Muradnagar
District Ghaziabad, U.P.
4. Tayyab Ali S/o Sh. Masood Ahmed
R/o Village Aali Nagar, PS Aali Nagar,
District Darbhanga, Bihar.
5. Reshma W/o Shri Shafik Ahmed
R/o Village Rama, P.S. Debrikal
District Pauri Garwal,
Uttaranchal.
JUDGMENT
1. On 01.07.2002 Raj Pal Tugnaite along with his son Page No. 2 Ashok Tugnaite was resting in his bed room. At about 10.30 a.m his daughter in law Poonam shouted Daddy-Daddy and he immediately got up and when he reached at the door of the room one person pointed out knife to him and asked him to keep standing. Thereafter other persons brought his daughter in law Poonam and two grand daughter in the same room. They were made to sit on the ground and asked not to raise alram otherwise they will be killed. They asked for the keys from Poonam which was handed over to them. They opened Almira removed one license revolver No. 113489 9 mm point 38 LLAMA alongwith one laptop, pearl set, gold set, gold chain, Mobile phone Nokia 8250 some dollars and cash , Tape recorder, Walkman, gold rings and 16 bangles. Accused persons thereafter took them in the upper room and bolted the room from outside. In the meanwhile his brother Dinesh also returned from the market he was attacked and he sustained injury on the finger of his right hand. One person who had entered in their house was having country made pistol and the other three were having knives in their hands. The detail list of the missing items were given to the police lateron. Dinesh was also confined in the same room and all were tied. Maid servant accused Reshma was confined in that room. Accused Reshma some how untied her hands and thereafter she helped others in untying. They shouted from the window of that room for help. Some passersby from the road came there and they opened the door. Thereafter police was informed. Police reached at the spot and the FIR was registered. Reshma were interrogated and she confessed about the commission of Page No. 3 crime and told that this offence has been committed by her alongwith her other companions. On 2-7-2002 the other accused would meet her at Anand Vihar Bus Stand for the distribution of the looted property. On this disclosure on 2-7- 2002 police reached Anand Vihar Bus Stand. There on the pointing out of accused Reshma Maruti Van No. DL 1 C B 4097 was stopped. The same was being driven by Mool Chand. Sanjay, Viakas and accused Tayyab were sitting in the van. In the search of accused Sanjay one country made pistol and two cartridges with 212 dollars were recovered. From accused Vikas pistol of 9 m Make LLAMA was recovered. From accused Mool Chand one mobile phone make Nokia Blue Colur was recovered. From the van one dagger, one laptop, one tape recorder, some jewelery and some silver utensils were recovered. All the property was seized. Accused persons were arrested. After completion of investigation charge sheet was filed. Ld. MM committed the case to the Sessions court as the case of offence punishable U/s 395 398 readwith 120-N were exclusively triable by the Sessions Court.
2. All the accused persons were charged. Accused Sanajy Jha, Reshama and Tayad Ali were charged for the offence U/s 120 B. All the accused were charged for the offence U/s 395/34 IPC. Accused Bittoo Kumar @ accused Vikas, accused SanjayJha and Mool Chand were also charged for the offence U/s 398 IPC to which they pleaded not guilty and claimed trial. The case was thereafter fixed for prosecution evidence.
Page No. 43. Prosecution in order to bring home the guilt of the accused persons examined 18 witnesses. Thereafter, prosecution evidence was closed. Statement of all the accused persons were recorded U/s 313 Cr.P.C. They denied the entire evidence. All the accused persons stated that they want to lead Defence Evidence except Reshama. The case was fixed for Defence Evidence. Only two defence witnesses were examined. Mirajuddin as DW1. He stated that he is owner of Jamjam Guest House, situated at 952, Gali Shyam Lal, Jama Masjid, Delhi. He also stated that on 1-7-2002 accused Tayyab Ali and Juned @ Javed were working as Manager in the Guest House. They were working in the shift of 12 hours each. Tayyeb Ali was on duty on 1-7-2002 from 9 am to 9 pm. He also stated that on that day he alongwith Tayaab Ali had gone to Sadar Bazar to purchase the articles for the hotel at 10:30 am and returned at 4:30 pm. He stated that on the same day in the night at about 12:30 am 4-5 poloice officers came there and took accused Tayyab Ali. During Cross examinatioin he stated that no complaint was made to any authority, court or to police officials that Tayaab had been taken by the police.
4. Nidrosh Tyagi was examined as DW2. He stated that Mool Chand driver of Maruti Van was arrested in his presence near his house on 30-6-2002. During cross examination he stated that he does not know whether the persons with whom Mool Chand left were the police officials or his friends or decoits. He also stated that he does not know on 1-7-202 accused Moo Chand had committed decoity alongiwth Page No. 5 his accomplishes. Thereafter the Defence Counsel closed the defence evidence and case was fixed for final arguments
5. I have heard the Ld. APP for State, Ld. Defence Counsels for the accused persons and perused the record.
6. Ld. APP submitted that in the present case prosecution had examined 18 witnesses. The IO of the case could not be examined as he had died. All the witnesses have fully supported and corroborated the prosecution case. The complainant of the case Raj Pal Tugnait has been examined as PW1. He had supported his complaint and deposed on oath the entire facts of the case. Ld APP pointed out that the witness deposed that :-
" On 1-7-2002 at about 10:30 am I was resting in my bed room. My maid servant, namely, accused Reshma came for cleaning and dusting of the room and then she went in drawing room where my daughter in law namely Poonam and my two grand daughters were sitting. After 10 minutes approx. of accused Reshma's arrival I heard a loud cry of my daughter in law Poonam and she was calling me. I got up and started coming to the drawing room. The moment I reached at the door of my bedroom one person pushed me and put a "Chura" on me and also warned me to keep quiet and asked me to sit down. My youngest son Ashok was also lying in the same bed room..... Soonafter my daughter in law Poonam and my two grand daughters were also brought by the other three persons having country made pistol in the hand of one person Page No. 6 and Chura's in the hand of other persons....... They warned us that we should keep quit otherwise there will be blood shed. Accused persons asked us to handover the keys of the cupboards lying in both the bedrooms..... The accused persons removed all the articles from the locker and also picked up other article from the almirah......"
7. Ld. APP submitted that this testimony of PW1 find corroboration from the testimony of PW9 i.e. Mrs. Poonam daughter in law of PW1 and wife of PW5 Dinesh Pal Tugnaik. The witness had also stated that thereafter their hands were tied with the rope / string and also with the telephone wire which they have cut. They all alongwith accused Reshma were bolted in the room situated on mazeninne floor.
8. Ld. APP submits that according to this witness in the meanwhile Dinesh who had gone to market returned and he was also brought to the same room. He was bleeding from his hand at that time. Accused persons asked them not to raise alarm or come out of the room in the next 15 minutes otherwise there will be bloodshed and thereafter they bolted the door from the outside. Accused Reshma somehow untied her hands and she also helped others in untying their hands. They tried to open the door but it could not be broke open. They shouted from the window and some passersby open the door. This part of the testimony is also corroborated by the other PW's. There is no contradiction in the testimony of PW1 Page No. 7 and PW9. All these facts clearly show that accused persons entered in the house of PW1 and have looted the property which is identified as Ex.P1 to P45 by the witnesses it includes various jewelery items, mobile phone and also the pistol LLAM point 38 9 mm which is Ex.P1, mobile phone is Ex.P2 and also US Dollars.
9. Ld. APP further submitted that four eye witnesses were examined by the prosecution, PW1, Raj pal Tugnait, PW5 Dinesh Pal Tugnait, PW9 Mrs. Poonam Dinesh Pal Tugnait and PW17 Ashok Tugnait. Ld. APP submitted that these witnesses have stated that the accused present in the court look like the accused who committed the offence. Ld. APP submitted that the conspiracy was hatched by accused Reshma, SanjayJha and Tayyab Ali. Ld. APP submitted that there can not be direct for evidence proving the conspiracy as the same is secretly hatched in darkness without the knowledge of the other persons therefore it has to be inferred from the circumstances. Ld. APP submitted that Resham got the job of maid servant. She met with accused Tayyab Ali and thereafter with Sanjay. They discussed with each other between 28-6- 2002 and 30-6-2002. Reshma had shown Sanjay that house. It was accused Reshma who facilitated the entry to the accused persons from the door of the garage. Ld. APP submitted that it is important to note that PW1 stated that within 10 minutes of the arrival of accused Reshma accused perosns entered the house which clearly shows that accused Reshma was involved in the conspiracy of the dacoity at the Page No. 8 house of PW1. accused Reshma had also disclosed that the looted property will be distributed on 2-7-2002 and for the purpose other accused will meet her at Anand Vihar Bus Stand. Ld. APP submitted that on this information police party was formed and they reached at Anand Vihar Bus Stand and on the pointing out of accused Reshma a Maruti Van bearing No. DL 1 CB 4097 was stopped. There were four persons in that Van. Mool Chand was driving that Van. Accused Sanjay Jha, Tayyab Ali and Vikas were sitting in the Van and from them the entire case property was recovered. Ld. APP submitted that the recovery of the case property immediately after the incident at the instance of accused Reshma from the other accused persons clearly show that accused Reshma was in conspiracy with accused Sanjay Jha and Tayyab and in furtherance of conspiracy hetched this dacoity was committed. Ld. APP submitted that from accused Sanjay Jha one country made pistol, two cartridges and 212 Dollars which were looted from the house of PW1 were recovered. From Accused Mool Chand one Mobile Phone which was also looted from the house of PW1 was recovered. Accused Vishal was found in possession of pistol make LLAMA 9 mm which was of PW1 and was looted in the dacoity and the remaining jewelery items alongwith other articles Ex.P1 to Ex.P45 were also found in that Van.
11. Ld. APP submitted that the eye witness were not able to identify the accused persons may be due to the reason that they were so terrified when the dacoity was committed.
Page No. 9So they could not remember the faces properly but the fact that the dacoity was committed by 1-7-2002 at about 10:45 am and the recovery has been effected on 2-7-2002 itself at about 2:15 to 3 pm clearly shows that the accused persons have committed this dacoity.
12. So far as accused Tayyab Ali is concerned Ld. APP submitted that the DW1 has been examined but his evidence does not inspire evidence as no complaint was made to the police or to the court or to any other authority that accused Tayyab Ali had been lifted and falsely implicated. Similarly so far as DW2 regarding Mool Chand is concered he is not reliable, as owner of the van who was examined as PW6 i.e. Shiv Kumar Tyagi had specifically stated that Mool Chand was driver of his van and he had taken the van from him on 2-7- 2002 on the pretext that his child is ill and he had to take his child for medical checkup. Keeping in view the testimony of the PW6 on this aspect who has been cross examined at length but nothing material came on record favouring the accused, the testimony of DW2 can not be relied upon. Even otherwise DW2 simply says that on 30-6-2002 he saw that Mool Chand had left with 4-5 persons. This witness is silent on the issue as to whether Mool Chand had returned thereafter or what happened to him. Therefore DW2 is of no help to the defence. Ld. APP submitted that keeping in view these facts it is clear that all the accused persons alongwith other two accused who are PO i.e. Jugal Kishor and Harender committed dacoity on 1-7-2002 at C-76, Defence Colony, New Delhi in furtherance of Page No. 10 the conspiracy hetched between accused SanjayJha, Tayyab Ali and Reshma. Ld. APP in support of his arguments relied upon the judgments :-
Shashi Shekhar @ Neeraj @ Raju Vs. State, 2007 III AD (Cr.) (DHC) 521, wherein it is held that " recovery of huge amount of stolen articles from the accused after the robbery and murder makes the appellant / accused not only of robbery but also murder of the two deceased. Robbery and Murder were part of the same transaction and therefore Ld. Trial Court did not commit any mistake holding the appellant accused guilty both for robbery and murder."
and another judgment titled, Gulamuddin and Ors Vs. State ( GNCT of Delhi), 2007 IV AD (Cr.) (DHC) 41, wherein it is held that :-
" Recovery of golden chain from possession of accused Satbir Singh only two days after incident clearly establishes that it was removed by him from body of deceased at time of incident and consequently it also stands established that ll five accused persons had gone to house of deceased to commit dacoity and they did commit dacoity."Page No. 11
12. It is prayed that all the accused persons be convicted.
13. Ld. Counsel for the accused persons submitted that they were charged for the offence U/s 395/34 IPC and U/s 398 IPC. The onus was upon the prosecutioin to prove this case but the prosecution has failed to establish its case at all. Prosecution miserably failed to connect the accused persons with the alleged commission of offence. Story of the prosecution is concocted which is evident from the fact that there is no evidence to show that accused Reshma was in conspiracy with the other accused persons. None of the eye witnesses has been able to identify any of the accused. PW1, the complainant, had stated in his examination in chief itself that :-
" Witness had correctly identified accused accused Reshma present in the court today. After seeing the persons standing in the court, witness states that accused persons look like the persons who entered in my house and looted the article...... Witness has pointed out towards four accused beside accused Reshma present in the court. I can not identify exactly as I was very much confused at that time.Page No. 12
The other eye witness PW5 has stated that:-
"My maid servant accused Reshma ho was working in my house is present today in the court as accused. Witness has correctly identified accused accused Reshma who is present today in the court . I can not say with certainity that whether the accused persons present in the court today are the same persons who were present in my house on the date of incidence.
14. PW9 Mrs. Poonam had stated that " I can identify my maid servant accused Reshma. Witness has correctly identified accused Reshma who is present today as accused. I can not identify said three persons who come to my house and took the article but the said persons were of " Inke Jaise Lagte the" and the witness has pointed out towards accused Sanjay Jha, Bitto kumar @ Vishal and Mool Chand."
15. Ld. Counsel submitted that the fourth eye witness, Ashok Tugnait examined as PW17. That witness has not identified any of the accused persons he was not even able to identify the maid servant working in the house. The relevant part of the testimony is Page No. 13 "I can not identify the made servant who was working in our house at that relevant time as she joined as maid servant only two days before the incident. I can not identify those persons who put knife on my neck, on the neck of my father, my sister in law Poonam as I did not remember their faces. I had never seen those accused person thereafter or identified them.
16. Ld. Counsel submitted that there is no other witness who can link accused with the commission of offence. These were the only witnesses who had seen the persons who committed dacoity in their house. The absence of any evidence which could link the accused persons with the commission of offence, warrants that the accused persons be acquitted.
17. Ld. Counsel submitted that so far as the theory of conspiracy is concerned no evidence has been lead that any conspiracy was ever hetched between the accused Reshma, Tayyab and Sanjay Jha between 28-6-2002 to 30-6-2002. The only the evidence is the disclosure statement which is inadmissible under law as there is no recovery of any fact or evidence in pursuance to that disclosure statement. The prosecution has not lead any evidence on this aspect and the theory of conspiracy is not proved.
Page No. 1418. Ld. Counsel submitted that finger prints were also found as same is evident from the testimony of the PW4 HC Sri Pal that two chance prints were found. The finger prints of the accused were also taken but those have not tallied with the chance prints which clearly shows that none of the accused facing trial is involved in the commission of this offence. In fact the accused persons have been lifted from their respective houses and implicated in this case. So far as Mool Chand is concerned, DW2 clearly stated that he was lifted from his village on 30-6-1992 itself and lateron implicated in this case. So far as accused Tayyab Ali is concerned he was on duty on 1-7-2002. It is well settled principle of law that DW's are also to be given the same weightage as the PWs. This witness was also cross examined but the prosecution was not able to cause any dent in his testimony. It is prayed that keeping in view all the evidence it is clear that the prosecution miserably failed to establish its case beyond reasonable doubt.
19. Ld. Counsel submitted that so far as the use of arms is concerned, to more accused persons, namely, Jugal Kishor and Harender are not arrested and they are PO. None of the witness had stated that the accused persons who are facing trial were having arms or are the same persons who committed the offence. Hence, no offence punishable under section 318 IPC is not made out. So far the sanction U/s 39 IPC is concerned that is irrelevant as no charge under Section 25 of the Arms Act was framed against any of the accused.
Page No. 1520. Ld. Counsel submitted that keeping in view these facts it is clear that there is no evidence the link to accused persons with the commission of offence. So far as the recovery is concerned the same was planted upon the accused persons. Even otherwise, there is no recovery so far as accused Tayyab Ali is concerned. From accused Mool Chand one mobile phone of blue colour was recovered but DW2 had also stated aht he was already under police custody since 30-6-2002. Hence, his arrest shown by the prosecution on 2-7-2002 can not be believed. From accused SanjayJha, 212 Dollar were shown to have been recovered but no number or detail is mentioned in the seizure memo. In the complaint also the complainant does not mention as to how many Dollars were missing from his house. Complaint is that some Dollars and cash is missing. Detail list was given lateron but according to that list US Dollar no. 38171 were missing. It is not clear whether the dollars allegedly recovered from accused Sanjay Jha were the same which were of the complainant. One pistol has been planted on accused Vikas. Prosecution has shown the remaining recovery from the van and there is nothing on record which shows that it was in the custody of accused Vikas or any other accused. Hence, accused persons can not be related with that recovery. It is prayed that all the accused persons are liable to be acquitted.
21. After hearing the arguments and going through the record, I found that witnesses PW1, PW5, PW9 and PW17 had fully supported and corroborated each other to the extent that Page No. 16 offence had taken place. Another question arises as to who has committed the offence, as pointed out by the Ld. APP, prosecution to establish the same had examined 18 witnesses out of that four eye witnesses are PW1 Raj Pal Tugnait, PW5 Dinehs Pal Tugnait S/o PW1 Raj Pal Tugnait, PW9 Poonam Dinesh Pal Tugnait and PW17 Ashok Tugnait other son of PW1.
22. It is pertinent to mention here that there were two grand daughters also at that time but those have not been examined. None of the eye witnesses was able to identify any of the accused facing trial present in the court except accused Reshma. PW17 was not able to identify even accused Reshma. So far as accused accused Reshma is concerned she was working as maid servant in the house and therefore they are able to identify her.
23. Defence has vehemently submitted that all the eye witnesses failed to identify the accused persons. Hence, they are liable to be acquitted but in my opinion there is other evidence also to link the accused persons with the commission of offence i.e. the recovery of the looted property from the possession of the accused persons immediately after the commission of offence. It is important to note that the dacoity had taken place on 1-7-2002 at about 10:45 am and the recovery is effected immediately on the next date on 2-7-2002 at about 3 pm. The recovery witnesses examined by the Page No. 17 prosecution i.e. PW8 WHC Gayatri, PW11 HC George Masih who was lateron promoted as ASI George Masi and PW16 HC Sunil Gaur have fully supported and corroborated each other on the point of recovery. The witnesses deposed that PW1 suspected that accused Reshma might be involved in the commission of offence as she was recently engaged as maid servant in the house. She interrogated and she confessed about the commission of crime and in pursuance to her disclosure statement Ex.PW11/B she lead the police party to Anand Vihar Bus Stand. At Anand Vihar Bus stand on the pointing out of accused Reshma one Maruti Van No. DL 1 VB 4097 was stopped. The vehicle was being driven by Mool Chand. accused SanjayJha, accused accused Vikas and accused accused Tayyab Ali were there in the Van at that time. All the recovery witnesses have stated that from accused Sanjay Jha 212 Dollar were recovered. From accused accused Vikas one pistol of 9 mm make LLAMA was recovered. It is pertinent to mention that pistol make LLAMA belong to PW1and it was looted from his house on 1-7-2002 and recovered on 2-7-2002 from the possession of accused Vikas. One mobile phone was recovered from the possession of Mool Chand was also looted from the house of PW1 on 1-7-2002 which was belonging to PW1 as was identified by PW2. Ex.P1, Dollars recovered from accused SanjayJha were also stolen from the house of PW1. Other jewelery items including utensils etc were also found in the same van. The two important circumstances which emerges from this are that at the instance of accused accused Reshma the other co-accused Page No. 18 were arrested and the entire looted property was recovered except the cash and some dollars. The looted property is Ex.P1 to Ex.P45 identified by the complainant. There is no explanation what so ever from any of the accused persons as to how they came in possession of the case property which was looted on 1-7-2002.
24. Ld. Defence Counsel had submitted that Mool Chand was already with the police as deposed by DW2, Nirdosh Tyagi. I have gone through the testimony of DW2. He had stated that on 30-6-2002 4-5 persons came in the vehicle and they took Mool Chand. Witness also stated that those persons told him that they are police officials. During cross examination the witness stated that "I can not say the persons with whom Mool Chand left village Murad Nagar whether they were police officials or dacoits or his friends.
I do not know if on 1-7-2002 accused Mool
Chand had committed dacoity alongwith his
other accomplishers."
25. From this testimony of DW2 it is clear that this witness does not know as to what happened after 30-6-2002. He even do not know whether those persons who took Mool Chand with them were police officials. He even does not know as to when Mool Chand returned after 30-6-2002 returned or not. It is also important to note that Mool Chand was working as Driver on the Van of Shiv Kumar Tyagi. This witness had Page No. 19 stated that on 2-7-2002 Mool Chand had taken the van on the pretext that he had to take his child to hospital. In the cross examination of this witness there is no such suggestion that Mool Chand was already taken by the police on 30-6-2002 or that Mool Chand had not taken the van on 2-7-2002. Keeping in view the testimony of the PW6 corroborated with the testimony of PW8, PW11 and PW16 that Mool Chand was arrested o n 2-7-2002 while he was driving the van and also found in possession of the stolen property. I am of the opinion that the testimony of DW2 is of no help to accused Mool Chand.
26. So far as the defence of accused Tayyab Ali is concerned DW1 had stated that on 1-7-2002 accused Tayyab Ali was on duty from 9 am to 9 pm and they had gone to Sadar Bazar at about 10:30 am and returned on 4:30 pm. He has placed on record on photocopy of the register showing the record of Jam Jam Guest House. According to this record last entry in the hand of accused Tayyab Ali is at 9 pm on 30-6- 2002 and on 1-7-2002 the last entry in the hand of accused Tayyab Ali is at 8:30 am and not thereafter as thereafter some other person had joined the duty. There is no other document to show that he was at Jam Jam Guest House at the relevant time when the offence was committed. The defence had alleged that he was called from Jam Jam Guest House but surprisingly no complaint was given to any police officer or to the court that accused accused Tayyab Ali had been lifted by the police or had been falsely implicated in this case.
Page No. 2027. According to DW1 they had made some purchases but no document / receipt has been placed on record issued in the name of DW1 or accused Tayyab Ali regarding the purchase made by them for Jam Jam Guest House. Even otherwise, the case of the prosecution that he was the conspirator in the commission of offence and he was charged being the conspirator. Keeping in view the evidence of recovery witnesses and the disclosure of co-conspirator Reshma resulting into recovery and arrest of accused Tayyab Ali I am of the opinion that DW1 is of no help to the defence.
28. According to the law every conspirator is liable for the offence committed in pursuance of that conspiracy irrespective of the fact whether he was actually there at the relevant time or not. It is well settled principle of law that there can not be direct evidence of conspiracy as pointed out by the Ld. APP and it has to be inferred from the circumstances. In the present case, the circumstances which points that conspiracy was there between the the accused persons is clear. The evidence shows that accused Reshma was engaged as maid servant only few days before the incident and on the relevant day only after about 10 minutes of entry of accused Reshma all the accused persons entered the house armed with the weapons, they looted them and ran away. It was accused Reshma who had confessed about the commission of crime and at her instance the accused persons were apprehended on the next day of the incident itself alongwith entire looted property.
Page No. 2129. This fact itself is sufficient to show and confirm that accused Reshma was in conspiracy with the other accused persons in the commission of crime and it is she who had facilitated the entry of the accused persons in the house as there is no evidence of forced entry in the house.
30. So far as accused Tayyab Ali is concerned accused Reshma herself had disclosed that he was also in the consp and on 2-7-2002 he also with the other accused persons was found in the same van alongwith the looted property. All these facts in my opinion constantly and beyond doubt prove that accused SanjayJha, accused accused Reshma and accused accused Tayyab Ali conspired to commit dacoity at C- 76, Defence Colony and in furtherance of that conspiracy dacoity was committed by all of them with the help of accused Reshma and looted the property which was recovered on the very next date. The fact that the recovery was effected on the next day of the offence itself is sufficient and points towards the guilt of the the accused persons. In having this opinion I am fortified by the judgments titled " Shashi Shekhar @ Neeraj @ Raju Vs. State, 2007 III AD (Cr.) (DHC) 521, wherein it is held that :-
" recovery of huge amount of stolen articles from the accused after the robbery and murder makes the appellant / accused not only of robbery but also murder of the two deceased. Robbery and Murder were part of the same transaction and therefore Ld. Trial Page No. 22 Court did not commit any mistake holding the appellant accused guilty both for robbery and murder."
And another judgment titled, Gulamuddin and Ors Vs. State ( GNCT of Delhi), 2007 IV AD (Cr.) (DHC) 41, wherein it is held that :-
" Recovery of golden chain from possession of accused Satbir Singh only two days after incident clearly establishes that it was removed by him from body of deceased at time of incident and consequently it also stands established that ll five accused persons had gone to house of deceased to commit dacoity and they did commit dacoity."
31. So far as the offence punishable U/s 398 is concerned i found that the same is not made out as Section 398 reads as under :-
"Attempt to commit robbery or dacoity when armed with deadly weapon, if, at the time of attempting to commit robber or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years."Page No. 23
32. From the bare perusal of this section it is clear that offenc U/s 398 IPC is committed if at the time of attempt to commit robbery or dacoity the accused was armed with the deadly weapon. This section does not speak of the offence where the dacoity has been committed. Herein the present case, the dacoity is complete and it is not merely an attempt. Hence, in my opinion Section 398 is not attracted. Instead, it should have been section 397 IPC which reads :
"Robbery, or dacoity, with attempt to cause death or grievous hurt; if, at the time of committing robber or dacoity the offender uses any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hut to any person or the imprisonment with which such offender shall be punished, shall not be less then seven years."
33. In the present case as discussed earlier, eye witnesses PW1, PW5, PW9 and PW17 have not identified any of the accused persons. They have not stated as to who was having country made pistol and who were having the knife at the time of commission of offence. Therefore, I am of the opinion that prosecution has failed to prove its case so far as Section 397 of IPC is concerned (Charged framed U/s 398 IPC). Accused Mool Chand, Bitto Kumar @ Vikas and accused SanjayJha are acquitted of this charge.
Page No. 2434. In view of the above discussions accused Reshma, SanjayJha and Tayyab Ali are convicted u/s 120-B IPC. Accused SanjayJha, Tayyab Ali, Reshma, Bitto Kumar @ Vikas and Mool Chand are also convicted u/s 395 of IPC.
Announced in open court ( V.K. BANSAL )
dated: 18.10.2007 ADDITIONAL SESSIONS JUDGE
NEW DELHI
Page No. 25
IN THE COURT OF SH. V.K.BANSAL:
ADDL. SESSIONS JUDGE:
NEW DELHI
IN SESSION CASE NO 5/2003
FIR NO. 395/2002
P.S. Defence Colony
U/s 395/398/120-B/34 IPC and 25 of Arms Act.
State Versus 1. SanjayJha @ Ajju S/o Shri Kameshwar R/o Village Ganga Dharmagatpur Post Pilkhi, Police Station Safra, District Mujaffarnagar, Bihar.
2. Bitto Kumar @ Vikas S/o Shri Chand R/o House No. 115, Kumharovli Gali Balmiki Basti, Muradnagar, District Ghaziabad, U.P.
3. Mool Chand S/o Shri Manak Chand R/o Village Bandipur, Muradnagar District Ghaziabad, U.P.
4. Tayyab Ali S/o Sh. Masood Ahmed R/o Village Aali Nagar, PS Aali Nagar, District Darbhanga, Bihar.
5. Reshma W/o Shri Shafik Ahmed R/o Village Rama, P.S. Debrikal District Pauri Garwal, Uttaranchal.
ORDER ON SENTENCE Page No. 26 Present : Sh Ahmad Khan Addl. P.P for the state.
All convicts produced from custody.
Heard on the point of quantum of sentence.
Ld Addl. P.P for the state submitted that all the convicts had committed dacoity in the house of Raj Pal Tugnaite and robbed various jwellary items and money by putting them under fear. In the dacioty their maid servant was also involved. It is prayed that keeping in view the gravity of the offence severest punishment be given to them and no leniency be shown.
Ld. Counsel submits that Convict Tayyab Ali is having old age parents, wife who is hospitalized and just operated and two children and he is having no previous criminal recored, Convict Mool Chand is having his family consisting of two children and wife. There is no other earning member in his family and he is also not having any previous criminal record, Convict Bitto Kumar @ Vikas is also having no previous criminal and record and prayed for lenient view, Convict Reshma is having one son and one married daughter and she is also having no previous criminal record. Ld. Counsel for convict persons prayed that a lenient view may Page No. 27 kindly be taken against them. Ld. Counsel for convict Sanjay Jha submitted that he is having minor children. He is the sole bread earner. There is nobody to lookafter them. It is prayed that a lenient view be taken.
Keeping in view the facts of the case that all the convicts have entered into the house of the complainant and robbed them and taken away the valuables and this all was done in conspiracy with the maid servant Reshma who was employed few days before the incident. All the convicts are sentenced to Seven Years RI with fine of Rs 5,000/- in default Six Months RI for the offence punishable U/s 395 IPC.
Convicts Reshma, Sanjay Jha and Tayyab Ali are further sentenced to Seven Years RI for the offence punishable U/s 120 B IPC with fine of Rs 5,000/- in default Six Months RI.
Both the sentences shall run concurrently. Benefit of section 428 Cr. P.C is given to all the convicts.
File be consigned to record room.
Announced in open court ( V.K. BANSAL )
dated: 24.10.2007 ADDITIONAL SESSIONS JUDGE
NEW DELHI
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