Delhi District Court
39. In The Case Of Wakeel Singh And Ors vs State Of on 25 August, 2014
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IN THE COURT OF MS SHAIL JAIN: SPECIAL JUDGE:
NDPS: 02: CENTRAL DISTRICT: TIS HAZARI : DELHI
SC NO. 79/12
STATE
vs
1. Shamshad
S/o Sh Munshi
R/o Village Allahpur, PS
Kadar Chowk, District Badaun
UP.
2. Shahadat Hussain
s/o Sh Niyamuttula
R/o Village Ismailpur, PS
Kadar Chowk, District Badaun
UP.
3. Mohd Abdul Quyum
S/o Shri Ayub Khan
R/o Village Goramai , PS
Kadar Chowk, District Badaun
UP.
4. Mehboob
S/o Sh Ayub Khan
R/o Village Goramai, PS
Kadar Chowk, District Badaun
UP.
FIR No. : 107/12
Offence U/S : 395/412/120 BIPC
Police Station : Kashmere Gate
DATE OF INSTITUTION: 01.09.2012
S.C.No. 79/12 Page 1 of 37 pages
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DATE OF JUDGMENT: 25.08. 2014
JUDGMENT
1. The brief facts of the present case are that accused persons Shamshad, Shahadat Hussain, Mohd Abdul Quyum and Mehboob along with Bashir Ahmed (not arrested) conspired to commit decoity on or before 17.5.2012 and in furtherance of that criminal conspiracy committed decoity of two bags being carried by Sh Nand Lal and Sh Shyam Babu having cash of Rs.31.5 lacs and Rs.3.5 lacs respectively. It is also the case of the prosecution that on the alarm raised by the complainant Nand Lal, accused Shamshad was apprehended at the spot along with bag containing cash of Rs.31.5 lacs but the other accused persons ran away from the spot.
2. Later on, during investigation other accused persons were arrested. From accused Shahadat Hussain amount of Rs.9600/ was recovered which was the part of the looted amount, given to him and other S.C.No. 79/12 Page 2 of 37 pages 3 coaccused Abdul Quyum got effected recovery of Rs.2 lacs from his house. As per the case of the prosecution, both accused persons retained the amount of booty knowing fully well that amount to be part of the looted amount.
3. During the investigation, statements of witnesses were recorded, disclosure statements of accused persons were recorded. After completion of investigation, accused persons were charge sheeted.
4. On 20.09.2012 , accused persons were charged for the offence u/s 395 read with section 120 B IPC and accused Shahadat Hussain and accused Mohd Abdul Quyum were charged for the offence u/s 412 IPC to which they pleaded not guilty and claimed trial.
5. Prosecution examined 10 witnesses in all to bring home the guilt of the accused persons.
The substance of the prosecution evidence is as follows :
6. PW1 HC Madan Lal was the duty officer on the S.C.No. 79/12 Page 3 of 37 pages 4 relevant date. He has deposed that on 17.05.2012, on the basis of rukka he recorded FIR of this case . The copy of FIR is Ex.PW1/A.
7. For proving the incident, prosecution has examined PW2 Shyam Babu and PW4 Nand Lal complainant. Both the witnesses have stated that on 16.5.2012 they were given amount of Rs.35 lacs by their employer Sh Prahlad Khandelwal at UP. They came to Delhi for delivering the said amount to the shop of Ashish Bansal in Chandni Chowk area. It is further stated by them that they boarded Shiv Ganga Superfast train from Allahabad for coming to Delhi and reached at New Delhi Railway Station at about 09:00 am. Thereafter they hired a rickshaw from the side of Ajmeri Gate for going to Chandni Chowk. The rickshaw puller was not able to pull rickshaw properly as the chain of the rickshaw was getting disengaged frequently. After travelling for about half kilometer, the rickshaw puller asked them to board a tonga which was S.C.No. 79/12 Page 4 of 37 pages 5 waiting at the road side. Three persons were already sitting in the tonga besides the tongawala. They seated on the front side of the seat with the tongawala and the other three persons shifted to the back portion. They had kept their bags under the seat. The space under the seat was not partitioned between the front side and the back side. A person sitting on the back portion could thus access the luggage kept under the seat. The tonga had started moving. The persons sitting on the back portion pulled bags and started checking the same. When they objected the said persons threatened them to keep quite otherwise they would kill them. The tongawala increased the speed of the tonga. He did not stop despite request to stop the tonga. When they started shouting for help, the tonga was stopped by the road side and all four of them fled away with the black colour bag containing Rs. 31,50,000/ and the red colour bag containing Rs. 3,50,000/. They approached the police personnel at a S.C.No. 79/12 Page 5 of 37 pages 6 police booth . There was one police officer who was present at the booth, who chased the accused persons and apprehended one of them. His name was disclosed as Shamshad. Shamshad is the person who was driving the tonga. The black colour bag containing Rs. 31.50 lacs was recovered from the possession of the accused Shamshad. The amount of Rs. 31.50 lacs was in the denomination of 500 as well as 1000.
8. On the statement of PW4 Nand Lal, FIR was recorded. The black colour bag with currency notes of Rs. 31.50 lacs were seized by the police. The seizure memo of the currency notes is Ex PW 2/A . The seizure memo of the tonga is Ex PW 2/B. The arrest memo and personal search memo of accused Shamshad are Ex PW 2/C and Ex PW 2/D respectively.
9. PW3 Ct Anil Kumar has deposed that on 14.07.2012, he joined the investigation of the present case alongwith IO Insector Gurmail Singh. On that day, he alongwith Inspector Gurmail Singh, ASI Om Prakash S.C.No. 79/12 Page 6 of 37 pages 7 and accused Mohd. Abdul Qayum reached at the jhuggi of Qayum situated at Garhi Mendhu, Yamuna Pusta. There, he pointed out towards a heap of bricks and told that he had concealed that polythene bag containing the currency notes beneath this heap of bricks. After removing the bricks, one white polythene was taken out on the pointing out of the accused. The said white polythene was containing currency notes of 500 denomination and on counting, the total recovered amount was Rs.2 Lacs. The said currency notes were kept in the same polythene and a pullanda with a white cloth was prepared and the same was sealed with the seal of GS and was taken into police possession vide seizure memo Ex.PW3/A .
10. PW5 Prahlad Khandewal has deposed on oath that Nand Lal PW2 and Shyam Babu PW4 were his employees. On 16.05.2012, he had handed over Rs. 35 lacs to Nand Lal and Shyam Babu in two bags and had instructed them to deliver the same to Sh Ashish S.C.No. 79/12 Page 7 of 37 pages 8 Bansal having his jewelery shop at Kucha Mahajani, Chandni Chowk , Delhi.
11. PW6 Inspector Prem Singh was second IO of the case. He has deposed that on 18.05.12, further investigation of the present case was marked to him. He had recorded supplementary disclosure statement of accused Mohd. Shamshad, which is Ex. PW6/A. On 19.05.2012, on the pointing out of Shamshad , accused Shahadat was apprehended by him vide memo Ex.PW6/C. Personal search of accused Shahadat was conducted vide memo Ex. PW6/C. Amount of Rs. 9600/ were seized vide seizure memo Ex.PW6/D after preparing the pulanda and sealed with the seal of PSN. Pointing out memo is PW6/G vide which accused Shahadat has pointed out the place of incident. Later on 20.05.2012 investigation was transferred to Inspector Gurmail Singh.
12. PW7 Ct Vijay Kumar has deposed that on 17.05.12 , he was on patrolling. When he reached at S.C.No. 79/12 Page 8 of 37 pages 9 Hanuman Mandir, Yamuna Bazaar, he saw that some persons were running and one person namely Nand Lal told him that they are running with his bags . He chased them and apprehended one of them along with one bag and complainant Nand Lal told him that this is his bag containing Rs. 31,50,000/belonging to his employer and he further told him that the associates of the man apprehended by him had ran away with his another bag of red colour containing Rs. 3,50,000/ . Meanwhile, ASI OM Parkash also arrived there , he and Nand Lal produced the bag and the person before ASI Om Parkash. Shyam Babu brother of Nand Lal was also present there. IO checked the recovered bag. The total Rs. 31,50,000/ were recovered from the bag which was recovered from the possession of accused apprehended by him , whose name on interrogation was revealed as Shamshad. The bag along with the currency notes was wrapped in a white cloth and pullanda was prepared and same was S.C.No. 79/12 Page 9 of 37 pages 10 sealed with the seal of OP. Seal after the use was handed over to him . IO recorded the statement of complainant Nand Lal and prepared a tehrir and handed over the same to him . He went to the P.S. Kashmere Gate and after getting the FIR registered came back at the spot and handed over the copy of FIR and original Tehrir to the IO /ASI OM Parkash. The said bag containing Rs. 31,50,000/ was seized vide seizure memo Ex. PW2/A , one horse and Tonga which were also found stationed there at the spot was also seized vide seizure memo Ex. PW2/C. Accused Shamshad was arrested and his personal search was conducted vide memos already Ex. PW2/C and Ex. PW2/D.
13. On 18.05.2012, he again joined the investigation of the present case along with Inspector Prem Singh Negi and ASI OM Parkash. IO recorded disclosure statement of accused Shamshad which is Ex. PW6/A.
14. On 19.05.2013, he again joined the investigation S.C.No. 79/12 Page 10 of 37 pages 11 of this case along with IO/Ins. Prem Singh Negi and ASI OM Parkash . On that day, at Gari Mendhu , at about 10.30PM , when they were present at Bulward Road, ISBT , Kashmere Gate , there they saw one person coming from Lal Kila side and accused Shamshad pointed out towards him stating that he is his associates Shahadat . Accused Shahadat Hussain was apprehended. Accused Shahadat Hussain confessed his guilt regarding his involvement in the present case and also produced Rs. 9,600/ which was the remaining amount after some expenditure made by him out of the booty. The said recovered currency notes worth Rs. 9,600/ were wrapped in a white paper and a pullanda was prepared with the help of white cloth and the same was sealed with the seal of PSN and were seized vide seizure memo Ex. PW6/D. Seal after use was handed over to ASI OM Parkash. Accused Shahadat was arrested and his personal search was conducted vide memos respectively Ex. PW6/B and Ex. PW6/C. IO S.C.No. 79/12 Page 11 of 37 pages 12 recorded disclosure statement of accused Shahadat, same is Ex. PW6/E. Accused pointed out the place of occurrence vide pointing out memo Ex. PW6/G.
15. On 21.07.2012 , he along with ASI OM Parkash went at Kadar Chowk , District Badau , UP and from there accused Mehboob was arrested on 22.07.2012 vide arrest memo Ex. PW7/A and his personal search was conducted vide memo Ex. Pw7/B. Railway ticket of complainant was seized vide seizure memo Ex. PW4/C. Disclosure statement of accused Shamshad is Ex. PW7/C .
16. PW8 Sh Harpal Singh Chauhan, Manager, Punjab National Bank has proved the statement of account pertaining to the customer Naseem Jahan as Ex.PW8/A. He has also proved the original account opening form, Form no 16, ID proof and undertaking as Ex.PW8/B1 to Ex.PW8/B4.
17. PW9 ASI Om Parkash Singh is first officer who had reached the spot of incident. On 17.5.2012 on S.C.No. 79/12 Page 12 of 37 pages 13 receipt of DD no. 16, he alongwith Ct. Gurmeet reached at Hanuman Setu near Hanuman Mandir, Yamuna Bazar, Delhi where PW7 Ct Vijay Kumar along with complainant Sh Nand Lal PW4 and PW2 Shyam Babu met him. The bag recovered from the possession of accused Shamshad was handed over to ASI Om Parkash. Statement of Nand Lal was recorded which is Ex. PW4/A. Thereafter rukka was prepared by witness, which is Ex. PW9/A. Recovered amount and bag were sealed by the witness. Rukka was sent for registration of FIR. Site plan was prepared which is Ex.PW4/B. It is further deposed by the witness that he has been member of investigation team who apprehended accused Shahadat Hussain on 19/05/2012. Accused Mohd. Kayum was apprehended from village Goramai, District Badayun. Arrest memo of Mohd. Qayum is Ex. PW9/B. Personal search of Mohd Qayum is Ex. PW9/C. Arrest memo of Shamshad is Ex. PW2/C. Arrest memo of Shahadat is Ex. PW6/B. S.C.No. 79/12 Page 13 of 37 pages 14 Personal search memo of accused Shahadat is Ex. PW 9/C. Disclosure statement of Shamshad is Ex. PW6/A . The disclosure statement of accused Abdul Quyum is Ex. 9/D and in disclosure statement, accused disclosed that he can get recovered the looted amount from House situated in village Gadimaidu, Bhajanpura. Accused led the police party and got recovered Rs. 2 lacs from the house situated at Gadimaidu. The notes were taken into possession after converting into sealed pullanda and sealed with the seal of GS vide seizure memo Ex. PW3/A .
18. Witness has further stated that on 21.7.2012, he again went to Badayun alongwith Ct. Vijay alongwith NBWs of accused Mehboob and Bashira. Bashira was not found there but Mehboob was apprehended on 22.7.2012 from Kadar Chowk, Badayun. Accused Mehboob was arrested vide Ex. PW7/A . His personal search was conducted vide memo Ex. PW7/B. Accused was interrogated by Inspector Gurmail Singh who S.C.No. 79/12 Page 14 of 37 pages 15 made disclosure statement Ex. PW9/E . Nothing was recovered from accused Mehboob. On 25.5.2012, he had gone to Badayun alongwith Inspector Gurmail Singh from where they raided at the residence of accused Mehboob and Kayum. A passbook and two slips regarding deposit of money was collected from the house . The passbook was recovered from the possession of Nasima, mother of accused Mehboob and Qayum. The passbook and the slips were taken into possession vide Ex. PW9/F.
19. PW10 Inspector Gurmail Singh has deposed that further investigation of the present case was assigned to him on 21.05.2012. He has deposed about the apprehension and arrest of accused Abdul Quyum and recovery of Rs.2 lacs at the instance of accused Abdul Quyum and further arrest of accused Mehboob. After completion of investigation of the case, the charge sheet was filed in the court.
20. Thereafter prosecution evidence was closed.
S.C.No. 79/12 Page 15 of 37 pages 16
21. The statements of the accused persons were recorded u/s 313 Cr PC, wherein, entire incriminating evidence were put forth to them. All accused persons had pleaded that they are innocent and they have been falsely implicated in the present case. They further stated that they did not want to lead any defence evidence.
22. I have heard arguments from Ld. APP Sh. Subhash Chauhan for the State and Sh F. A Banisrael Ld counsel for accused persons.
23. Ld Additional P.P has argued that prosecution has proved the case against all accused persons beyond reasonable doubt. Accused Shamshad was arrested at the spot with the help of complainant and PW7 Ct Vijay Kumar and thereafter other accused persons were arrested. From accused Shamshad, recovery of Rs.31.5 lacs was effected and later on Rs.2 lacs were recovered at the instance of accused Abdul Quyum and Rs.9,600/ were recovered from accused S.C.No. 79/12 Page 16 of 37 pages 17 Shahadat. It is also argued by Ld Additional P.P that both complainant and his brother being public witnesses have specifically identified the accused persons and have attributed the specific role of accused persons, ie accused Shamshad was driving the tonga at the time of incident whereas accused Abdul Quyum was rickshaw puller who has brought the complainant and his brother from New Delhi Railway Station to the spot where they were made to sit in tonga and other two accused persons were already sitting in the tonga along with coaccused Bashir Ahmed (not arrested). Hence it is prayed by Ld Additional P.P that accused persons be convicted u/s 395/412 read with section 120 B IPC.
24. On the other hand, Ld defence counsel has argued that as per the case of the prosecution, accused Shamshad was arrested at the spot by PW7 Ct Vijay Kumar. Other accused persons were later on arrested during the course of investigation. It was also argued S.C.No. 79/12 Page 17 of 37 pages 18 by Ld defence counsel that description of other accused persons was not given in the FIR, therefore, identity of the accused persons is doubtful. On the point of identification Ld counsel for accused has relied upon various judgments and some of them are mentioned as below:
1. AIR 1981 SC 1392
2. 2010 (4 RCR (Crl. ) 268 SC
3. 2009 (4) CCC 21 Delhi
4. 2009 (4) JCC 2615 Delhi
25. It is also argued by Ld defence counsel that accused Shahadat and Abdul Quyum had refused to participate in TIP on the ground that their photographs were taken by the IO and shown to the witnesses, hence the refusal on the part of accused persons for participating in TIP cannot be read against them in evidence. It was also argued that rickshaw in which allegedly the complainant and his brother had travelled has not been recovered by the police and the S.C.No. 79/12 Page 18 of 37 pages 19 tonga recovered at the spot, has not been shown in the site plan, therefore, there are contradictions in the case of the prosecution which falsify the case of the prosecution.
26. It is also argued by Ld defence counsel that there are certain material contradiction in the testimonies of complainant, PW2 Shyam Babu and his brother, PW4 Nand Lal in respect to the possession of the bag at the time of recovery of the same from accused Shamshad. No recovery was effected of red bag which was allegedly also looted from the complainant. There was no identification mark on currency notes hence it cannot be said that money actually belonged to PW4 or same was looted from them by the accused persons. Ld defence counsel has also argued that no public person was joined in the recovery of alleged currency notes from the accused persons, therefore, recovery as stated to have been effected is planted one.
27. I have considered the arguments advanced by Ld S.C.No. 79/12 Page 19 of 37 pages 20 counsel for the parties, evidence led by prosecution, judgments relied upon by Ld defence counsel and gone through the material on record.
28. In the present case prosecution has examined 10 witnesses in order to prove the guilt of accused persons. Accused Shamshad was arrested at the spot as per the case of the prosecution and he was found having bag of the complainant in his hand which was containing Rs.31.5 lacs. Accused Shamshad was identified by the PW4 Nand Lal, who is the complainant as well as by the brother of the complainant, PW2 Shyam Babu and PW7 Ct Vijay Kumar who had apprehended accused Shamshad on hearing shouts of PW2 and PW4.
29. As per testimonies of PW2 Shyam Babu, PW4 Nand Lal and PW7, Ct Vijay Kr accused Shamshad was arrested at the spot with the looted money of Rs.31.5 lacs in the black bag. The money and bag was identified by PW2 and PW4, belonging to their S.C.No. 79/12 Page 20 of 37 pages 21 employer PW5 Sh Prahlad Khandelwal. PW5 Sh Prahlad Khandelwal has also stated that he has given money to the tune of Rs.35 lacs to PW2 Shyam Babu and PW4 Nand Lal for delivering the same to the shop of Sh Ashish Bansal. Thus the factum of handing over of Rs.35 lacs in two bags by PW5, Sh Prahlad Khandelwal, to PW2 and PW4 has been proved by the prosecution beyond reasonable doubt.
30. It is also proved by the prosecution that PW2 and PW4 had come to Delhi on 17.5.2012 by Shiv Ganga Express train from Allahabad as is proved by ticket placed and proved on record. The ticket is Ex.PW4/C. Thus, the prosecution has proved the handing over of money and bringing the said money to Delhi by PW2 and PW4 on 17.5.2012. Though PW2 and PW4 were cross examined at length by Ld defence counsel but it was not suggested to any one of them that said amount of money was not handed over to PW2 and PW4 by PW5 Sh Prahlad Khandelwal or S.C.No. 79/12 Page 21 of 37 pages 22 that the money was not looted from them.
31. By the testimonies of PW2 Shyam Babu, PW4 Nand Lal and PW7 Ct Vijay Kumar, it has been proved that accused Shamshad was arrested at the spot along with money ie Rs.31.5 lacs. Though, Ld defence counsel had taken the defence in cross examination that accused Shamshad was arrested not from the spot but from the New Delhi Railway Station under some misunderstanding but no such evidence has been led by the accused persons specifically by accused Shamshad. Even otherwise, defence has not been able to raise any suspicion in the case of the prosecution about wrong implication of accused Shamshad in the present case. It is natural that when a person is looted of his money or belonging at that very time he will try to nab the person who is real culprit, & he will not try to accuse innocent person or total stranger. Mere fact that accused Shamshad was arrested at the spot along with the case property shows that accused Shamshad S.C.No. 79/12 Page 22 of 37 pages 23 was rightly prosecuted for the commission of offence u/s 395 IPC.
32. As per the case of the prosecution, PW2 and PW4 had travelled in rickshaw from New Delhi Railway Station which was being driven by accused Abdul Quyum and it is also stated by both witnesses that chain of rickshaw was not functioning properly, therefore, rickshaw puller ie accused Abdul Quyum forcibly made them to sit in tonga, which was waiting at the road side and in the tonga, three persons were already sitting, other then tongawala. Accused Shamshad has been identified by PW2 and PW4 to be the person, who was driving the tonga. In the entire cross examination of PW2 and PW4, no suggestion has been given to them that accused Shamshad was not driving the tonga or accused Abdul Quyum was not the rickshaw puller on the date of incident.
33. Main stress of Ld defence counsel has been on the point that photographs of accused Abdul Quyum S.C.No. 79/12 Page 23 of 37 pages 24 has been shown to the witness but at the same time, it was not clarified by the defence as to when the said photograph was shown to the witness, whether it was shown to the witness, before his testimony in the court or it was shown to him after arrest of accused or after the TIP. Mere suggestion has been given to witness PW2 Shyam Babu that photograph of accused Abdul Quyum was shown to him in mobile phone without specifying the date, time and place. Even to this suggestion, PW2 Shyam Babu had stated that he had seen the accused before. Therefore, PW2 has categorically made it clear that he had identified accused Abdul Quyum as having seen him on the date of incident and not due to any photo.
34. It is also specifically stated by PW2 and PW4 who are complainant and brother of the complainant that they were made to sit in tonga by accused Abdul Quyum i.e rickshaw puller. They kept their bags below the seat and bags were accessible from the back seat of S.C.No. 79/12 Page 24 of 37 pages 25 tonga. It is also stated by the witnesses that three persons sitting in tonga also started doing 'cherchar' with their bags. It is also stated by PW2 and PW4 consistently that on coming to know that their bags were being interfered with by persons sitting at the back, they raised alarm. On this PW2 and PW4 were threatened by those person to keep quite, otherwise they would be killed and at this time tongawala increased the speed of tonga and did not stop the tonga despite their repeated requests to stop the tonga. There is no cross examination of PW2 and PW4 on any of these averments made by PW2 and PW4 in their examination in chief. No suggestion has been given to PW2 and PW4 that they have not sat in the tonga or that no person sitting in tonga have tried to take their bags or that tongawala has not increased the speed of tonga, when they requested him to stop the tonga.
35. As regards conspiracy, it is well known that S.C.No. 79/12 Page 25 of 37 pages 26 conspiracy is hatched in total secrecy & the proof of conspiracy is to be gathered by circumstances and action of accused, as it is nearly impossible to have any direct evidence of 'conspiracy'. Similarly, in the present case, from the action of accused persons and the attending circumstances, conspiracy is to be seen. Mere fact that accused Abdul Quyum , rickshaw puller was not pulling rickshaw properly, as chain was getting disengaged frequently and due to this he forcibly made PW2 and PW4 to sit in tonga, which was waiting on road side indicates about there being a criminal conspiracy among accused persons. The fact that rickshaw puller accused Abdul Quyum stopped rickshaw at place where other accused were waiting in tonga, proves the conspiracy. Further, these allegations and averments of PW2 and PW4 have not been countered by accused persons. Hence I am of the opinion that prosecution has proved the offence of conspiracy u/s 120 B IPC against all accused.
S.C.No. 79/12 Page 26 of 37 pages 27
36. Ld defence counsel has also pointed out that there are contradictions in the case of the prosecution in respect to the black bag being larger one or red bag being larger one, which was ultimately not recovered or in respect to the fact who was holding the bag when IO/ASI Om Parkash had reached the spot on the date of incident or the fact that rickshaw in question was not recovered or that the tonga was not shown in the site plan. I am of the opinion that these are minor discrepancies, which are bound to occur considering the lapse of time of two years when the testimonies of witnesses have been recorded. The fact that the bag was in the hand of PW7 Ct Vijay Kumar or in the hand of PW2 or PW7 will not affect the evidence that said bag was recovered from the possession of accused Shamshad, who was arrested at the spot. Similarly the fact that the other bag whether it was bigger than the black bag recovered or not is also very insignificant as part of looted money had already been recovered and S.C.No. 79/12 Page 27 of 37 pages 28 out of the remaining amount of Rs.3.5 lacs, Rs.2 lacs were recovered at the instance of accused Abdul Quyum from his jhuggi, therefore, even if the bag was not recovered, this cannot be considered to be fatal to the case of the prosecution. Further, I am of the considered opinion that non recovery of rickshaw or not showing the place of tonga in site plan can be considered as lapse on the part of the prosecution but it is not vital to the case and will not affect the case. As there is no cross examination of PW2 and PW4 on these material aspect, that they did not travel in rickshaw or that they were not made to sit in tonga by rickshaw puller. In the absence of cross examination of PW2 and PW4 on these points, these minor lapses does not have any effect on the case of the prosecution.
37. Ld defence counsel has relied upon various judgments on the point that photographs of accused persons were taken in the PS by the IO and the same were shown to the witnesses, therefore, identity of S.C.No. 79/12 Page 28 of 37 pages 29 accused persons by the witnesses ie PW2 and PW4 is not sufficient to hold them guilty.
38. I have considered the judgments relied upon by Ld defence counsel. After considering the judgments and the facts & circumstances of the case, I am of the opinion that these judgments are not applicable to the facts of the present case and on the basis of circumstances, present case can be differentiated.
39. In the case of Wakeel Singh and ors vs State of BiharAIR 1981 SC 1392 Hon'ble Supreme Court has held that description of the accused persons were not given in the FIR, hence conviction cannot be based only on identification by single witness. Further, identification in that case of one accused was not relied upon by Hon'ble Supreme Court as TIP in that case was carried out after the gap of three and half months whereas in the present case, accused Shamshad was arrested at the spot, therefore, there was no necessity to provide the description of all accused persons in the S.C.No. 79/12 Page 29 of 37 pages 30 FIR. Other accused persons have been arrested during investigation on the basis of the disclosure statement made by accused Shamshad and also by other accused persons. As regards the TIP, accused Shahadat and accused Abdul Quyum had refused to take part in TIP, so there was no question of TIP being conducted after three and half months.
40. Accused Mehboob was arrested on 22.7.12 and he was identified by PW2 Sham Babu in TIP. No suggestion has been given to PW2 Shyam Babu that accused Mehboob was shown to him prior to the TIP or that his photograph was shown to him prior to the TIP. Though, Ld defence counsel has put the question of showing the photograph of accused Abdul Quyum to PW2 but no such question in respect to accused Mehboob has been asked from PW2. Therefore, it cannot be said or believed that PW2 had identified accused Mehboob as he was shown the photograph of accused Mehboob. Further, accused Mehboob was S.C.No. 79/12 Page 30 of 37 pages 31 arrested on 22.07.2012 whereas PW2 and PW4 have left Delhi on the date of incident, thereafter they did not come to Delhi except for TIP. Hence this judgment can be differentiated from the facts of the present case.
41. Similarly other judgments Muniappan and ors vs State of Tamilnadu 2010 (4) RCR (Crl) 268 SC, case Jafar Malik vs State 2009 (3) CCC 21 Delhi and the case Ajesh Kumar vs State 2009 (4) JCC 2615 Delhi are also on the point that photographs of accused persons were shown to the witnesses, hence identification in TIP is of no consequence. As mentioned above, no such suggestion was given to PW2 Shyam Babu that the photograph of accused Mehboob was shown to him, hence in the present case, TIP was conducted properly and PW2 has correctly identified accused Mehboob.
42. As regards the identification of other accused persons ie accused Shahadat and accused Abdul Quyum who had refused to take part in TIP on the S.C.No. 79/12 Page 31 of 37 pages 32 basis of the allegation that their photographs were taken by the IO. It is important to consider that accused Shahadat was arrested on 19.05.2012 whereas PW2 and PW4 as per their cross examination, have left Delhi on the date of incident i.e. 17.05.2012. No suggestion has been given to PW2 or PW4 stating that they were present in Delhi on 19.05.2012 when accused Shahadat was arrested or when he has refused to participate in TIP. Similarly for accused Abdul Quyum who was arrested on 14.07.2012, there is nothing to prove that at the time of arrest of accused Abdul Quyum, PW2 and PW4 were in Delhi or that they were shown photo of accused Abdul Quyum before his refusal for participation in TIP.
43. Taking into the account the complete facts and evidence as deposed by PW2 and PW4, their testimonies being consistent to each and every fact of the incident along with the fact that accused Shamshad was arrested with the bag containing Rs.31.5 lacs on S.C.No. 79/12 Page 32 of 37 pages 33 the spot with the help of PW7 Ct Vijay Kumar, I am of the opinion that prosecution has proved the case beyond reasonable doubt against all accused persons, that they have conspired to commit the offence of decoity and in furtherance of that criminal conspiracy accused Abdul Quyum, who was driving the rickshaw has taken PW2 and PW4 in his rickshaw and had brought them to the spot where accused Shamshad was waiting with his tonga wherein other accused persons ie accused Shahadat and accused Mehboob along with coaccused Bashir Ahmed (not arrested) were waiting to finally commit the offence. As soon as PW2 and PW4 sat in the tonga, accused Shahadat, accused Mehboob along with coaccused Bashir Ahmed (not arrested) started checking the bags of the complainant and when they raised alarm, all accused persons left the tonga at the spot and tried to run away with the looted property i.e. bags containing Rs.35 lacs. It is also proved by prosecution beyond S.C.No. 79/12 Page 33 of 37 pages 34 reasonable doubt that black bag and was containing amount of Rs.31.5 lacs in cash in the bundle of currency note having denomination of Rs.500/ and Rs. 1,000/ was recovered from the possession of accused Shamshad, who was arrested on the spot with the help of PW7. I am of the opinion that prosecution has proved its case against accused persons beyond reasonable doubt. Hence accused persons are convicted for the offence u/s 395 read with section 120 B IPC.
44. As regards the offence u/s 412 IPCtwo bags containing Rs.35 lacs were looted from PW2 and PW4 by accused persons on 17.5.2012. As per the case of prosecution, accused Shamshad was arrested with the bag containing Rs.31.5 lacs and other accused persons have run away with the other bag having money of Rs. 3.5 lacs. As per the prosecution case, accused Shahadat who was arrested on 19.5.2012 was found in possession of Rs.9600/ out of booty of Rs.15,000/ S.C.No. 79/12 Page 34 of 37 pages 35 given to him and Rs.2 lacs were recovered at the instance of accused Abdul Quyum from Garhi Medu. Further, it is also proved by prosecution by way of testimony of PW8 Sh Harpal Singh, who has produced the Statement of account in the name of Naseem Jahan, mother of accused Abdul Quyum and accused Mehboob that amount of Rs.35,000/ and Rs.40,000/ were deposited in the account of Noor Jahan on 25.5.2012. There is no explanation tendered on behalf of accused persons regarding huge amount of Rs. 35,000/ and Rs.40,000/ being deposited in the account of Noor Jahan mother of accused Mehboob and Abdul Quyum in single day ie on 25.5.2012. No defence evidence has been led by the accused persons to show from where such huge amount was received by them or was deposited in the account of their mother, hence I am of the opinion that prosecution has sufficiently proved its case beyond reasonable doubt that accused persons have committed offence of S.C.No. 79/12 Page 35 of 37 pages 36 decoity and thereby looted amount of Rs.35 lacs from PW2 and PW4. Out of that amount, Rs.31.5 lacs was recovered from the possession of accused Shamshad at the spot. At the instance of accused Abdul Quyum Rs2 lacs were recovered on 14.07.2012 from his plot ie Garhi Medu, Jamuna Pusta Delhi vide seizure memo Ex.PW3/A. Amount of Rs.9600/ were recovered from the possession of accused Shahadat on 19.05.2012 and same were seized vide memo Ex.PW6/D. Nothing is proved on the part of accused persons to prove their bonafide and their legal right to have such money which was recovered from their possession. Accused persons have not been able to prove how and in what manner they came in possession of that much amount, therefore only logical inference which can be drawn from such evidence proves the case of the prosecution. Hence accused Shamshad, accused Shahadat Hussain and accused Abdul Quyum are also convicted for the offence u/s 412 IPC. As no recovery S.C.No. 79/12 Page 36 of 37 pages 37 was effected from accused Mehboob, he is acquitted for the offence u/s 412 IPC.
ANNOUNCED IN THE OPEN COURT ON 25.08.2014 (SHAIL JAIN) SPECIAL JUDGE: NDPS02 CENTRAL, DELHI S.C.No. 79/12 Page 37 of 37 pages