Delhi District Court
State vs . 1. Garbu Mukhiya, on 28 February, 2017
IN THE COURT OF SH. SUNIL K. AGGARWAL, ADDITIONAL SESSIONS
JUDGE04, (NORTHWEST DISTRICT) ROHINI COURTS, DELHI
IN THE MATTER OF :
Unique ID No. : 02404R0166832011
Sessions Case No. : 70/01/14
FIR No. : 99/11
Under Sections : 392/395/397/412/120B/34 IPC
Police Station : Model Town
STATE Vs. 1. Garbu Mukhiya,
S/o Sh. Surat Mukhiya,
R/o Village Kabilasha, PS Ladania,
District Madhubani, Bihar.
2. Vishnu Mukhiya,
S/o Sh. Suraj Mukhiya,
R/o Village Kabilasha, PS Ladania,
District Madhubani, Bihar.
3. Ram Briksh Mukhiya,
S/o Sh. Paltu Mukhiya,
R/o Village Kabilasha, PS Ladania,
District Madhubani, Bihar.
4. Darshan Mukhiya,
S/o Sh. Hukum Lal
R/o Village Kabilasha, PS Ladania,
District Madhubani, Bihar.
Complainant:
Mrs. Rekha Makkar,
W/o Sh. Devender Pal Makkar,
R/o House No. A141, Third Floor,
Gujrawala Town, PartI, Delhi.
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Date of receipt of files in this Court : 24.08.2011
Date of judgment : 28.02.2017
J U D G M E N T:
1.Case of prosecution is that the complainant was relaxing at her home and watching TV in her bed room at about 4.40 pm on 02.03.2011. Her domestic servant Saroj, employed just 10 days prior to the incident on the recommendation of Nageshwar, had given her water bottle and left by saying that he will return within two minutes, when two dark complexioned boys of the age group 2830 years speaking in bihari language entered into her room. One of the boys had a rusted country made pistol in his hand. The other boy had asked for keys of almirahs from her. On her refusal, those boys had broken open the drawers of almirah by forcefully pulling them and took out Rs. 3.5
- 4 lacs therefrom and filled them into their pockets. A third boy had also come inside the room in the meanwhile. They also removed jewellery from the almirah and kept it in a pink color bag on which 'RN Jewellers' was printed and kept it in pocket. Thereafter, the said boys left after snatching her grayish black color Nokia Phone having No. 9999916783 while directing her that the matter be not reported. The boys were carrying a rope with them. They had made the complainant to sit on a chair in the toilet and tied her hands and legs with said chair with using her shawl, ties and rope and fled away from the house. She had reported that her servant 'Saroj', aged about 3035 years, also mysteriously went missing since the day of incident. During investigation, the police got the spot photographed. Effort was made to lift the chance prints but none could be SC No. 70/01/14 FIR No. 99/11 P.S. Model Town S/V Garbu Mukhiya & Ors. Page No. 2 of 27 found. On being contacted, Nageshwar had informed about nephew of 'Saroj' namely Kamlesh working at House No. 3/47, Roop Nagar, Delhi. On being brought to the spot, Kamlesh, aged about 15 years, informed the real name of 'Saroj' to be Vishnu Mukhiya and that he is a resident of village Kavilasha, Police Station Ladania, District Madhubani, Bihar. A police team therefore, went to the said village on 03.03.2011 itself but Vishnu Mukhiya could not be found at his house. The second police team visited his village by departing on 08.03.2011 and was able to apprehend accused Vishnu Mukhiya on 14.03.2011 from whom part of the robbed property was recovered. On the basis of his disclosure statement, accused Garbu Mukhiya was apprehended on 17.03.2011 and further part of the robbed property was recovered from his possession. Both the accused persons were brought to Delhi on 19.03.2011. On being proposed, accused Vishnu had refused to participate in judicial TIP.
2. In order to apprehend Manoj Mukhiya, Joginder Mukhiya, Ram Kishan Mukhiya, Darshan Mukhiya and Ram Briksh Mukhiya, about whom the arrested accused persons had disclosed, the police team again went to Village Kavilasha in Bihar in April 2011 but finding no headway, returned on 15.04.2011. Coercive process against those accused persons were issued but remained unexecuted. All five of them were ultimately declared absconders on 01.07.2011.
3. Police again visited Madhubani, Bihar on 09.09.2011 from where, accused Ram Briksh was arrested. Accused Darshan was arrested from Pehowa, Kurukshetra, SC No. 70/01/14 FIR No. 99/11 P.S. Model Town S/V Garbu Mukhiya & Ors. Page No. 3 of 27 Haryana on 01.10.2011. No incriminating material however could be recovered from their possession. Both of them had refused to participate in judicial TIP. The recovered money and jewellery articles were released to the complainant after she had identified latter in Test Identification Parade of the case property. On conclusion of investigation, the charge sheet was filed in court on 11.06.2011. After taking cognizance and supplying the copies of paper book to the accused persons, the case was committed to the court of Sessions, where it was allocated on 24.08.2011. The supplementary challan qua accused Ram Briksh and Darshan Mukhiya was filed on 02.12.2011 and after completion of formalities, it was received on 02.01.2012 and tagged with main challan.
4. Charges under Section 395/120B, 397 and 412 IPC were settled against accused Garbu and Vishnu Mukhiya on 03.09.2011. The charges under Section 395/120B & 397 IPC were settled against accused Ram Briksh and Darshan Mukhiya on 19.01.2012 which set the stage for trial of the case. The prosecution has examined 11 witnesses in support of the charges.
5. PW1 Ct. Dalbir Singh being photographer of Mobile Crime Team of Northwest District had visited the third floor House No. A141, Gujrawala Town, Part I, Model Town, Delhi of the complainant along with Incharge SI Devender Singh and Finger Prints Proficient Ct. Ramesh on 02.03.2011. He had taken photographs Ex. PW1/A1 to Ex. PW1/A7 of the spot from different angles on the instructions of IO. He had produced their negatives Ex. PW1/B1 to Ex. PW1/B7 in court.
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6. PW2 Smt. Rekha Makkar narrated her ordeal in detail. After the intruders had left with booty, she felt that her right hand was loosely tied to the chair. With some effort, she was able to free herself and then untied other knots and came out of bathroom. On checking, she could not find anyone in the room or kitchen. The land line phone had been disconnected by intruders. By connecting said wires she had made a call to her husband. She did not find servant Saroj in his room on the roof, although, his articles were lying scattered in it. At that time, a boy from chemist shop had come to give her medicines. On being asked, he informed her having seen two boys going down. Since she did not have any money left with her, the chemist boy took back the medicines. Soon thereafter, her neighbors from the ground floor, daughter, husband and the police reached there, to whom she gave all the details. The robbers had left a pair of old slippers and took away her husband's chappals. The robber having country made pistol in his hand had worn gloves after taking them out of his pocket to avoid leaving finger prints on the almirahs. Those gloves were left on the electric meters installed on the ground floor. The police had recorded her statement Ex. PW2/A, on which she had signed in Hindi as well as English. She had identified accused Ram Briksh to be the intruder having country made pistol in his hand and accused Darshan Mukhiya to be the one who had broken the almirahs. Accused Vishnu was identified by her as her servant who had told his name to be Saroj. The complainant could not identify accused Garbu Mukhiya and claimed that he may be the third intruder who had tied his mouth with a cloth. The witness identified the case property from Ex. P1 to Ex. P18 and photographs SC No. 70/01/14 FIR No. 99/11 P.S. Model Town S/V Garbu Mukhiya & Ors. Page No. 5 of 27 of most of them as Ex. PX and Ex. PY.
7. PW3 Ct. Virender had accompanied the IO/SI Rakesh Rana to the spot on 02.03.2011, on receipt of information about robbery. IO had recorded the statement of victim Smt. Rekha Makkar and after endorsing ruqqa, sent him to Police Station for getting FIR registered on its basis. In the meanwhile, Mobile Crime Team had come and inspected the spot. IO had seized the shawl, muffler, bandage type rope and other articles from the spot vide memo Ex. PW3/A after sealing their parcels. He had prepared the site plan and had also made inquiries from a boy of about 1415 years. The witness had identified the muffler, tie, shawl, pair of chappals and white bandage in court as Ex. P1 to Ex. P5.
8. PW4 HC Naresh Kumar and PW5 Ct. Kuldeep Singh along with ASI Pramod and Ct. Jai Parkash had gone to the village of accused persons in search of case property and for apprehending them and reached there on 06.03.2011. SI Rakesh Rana along with other policemen had also reached there after 23 days. For few days, they could not lay hands on either the culprits or the case property, therefore secret informers were deployed and on the basis of information supplied by them, accused Vishnu was apprehended while going on foot to Village Lalmaniya, on 14.03.2011, where, his family was putting up. Three gold kadas, one necklace, one pearl necklace with diamond pendent, two ear rings, six golden color ear rings with diamond, two ear rings with stone and diamond and a broken bangle kept in a black color polythene containing a blue color SC No. 70/01/14 FIR No. 99/11 P.S. Model Town S/V Garbu Mukhiya & Ors. Page No. 6 of 27 jewellery bag, on which Luster Bajaj Jewellers, Karol Bagh, Delhi was written, were recovered from his possession. A sum of Rs.10,000/ in cash was also recovered from his possession. The recoveries were kept in a cloth parcel and sealed with RR and both were seized vide memo Ex. PW4/A. The accused Vishnu was arrested vide memo Ex. PW4/B and his personal search conducted per Ex. PW4/C. The accused had made disclosure statement Ex. PW4/D. IO/PW10 had prepared site plan Ex. PW4/E of the place of recovery. On the outskirts of his village Kavilasha, accused had pointed out his brother Ram Kishan and stated that part of the robbed articles were with him. Ram Kishan was on motorcycle at that time. On seeing the police vehicle, he gave a slip by speeding away on his bike. Accused Vishnu thereafter had got recovered a mobile phone make Nokia from a trunk in his house. He had been provided the said mobile by his employer/complainant. It was seized vide memo Ex. PW5/A. Pursuant to the disclosure of accused Vishnu, accused Garbu was apprehended from near the village Pond on 17.03.2011 and a sum of Rs.12,500/ was recovered from his shirt pocket. It was seized vide memo Ex. PW5/B. He had led the police team to pile of cattle fodder from which a polythene containing robbed jewellery articles were got recovered by him. It was seized vide memo Ex. PW5/C. Accused Garbu was arrested vide memo Ex. PW5/D and his personal search was taken vide memo Ex. PW5/E. Both the accused persons were brought to Delhi on 18.03.2011. The witnesses identified the recovered jewellery in photograph Ex. PX, mobile phone in photograph Ex. PZ and currency notes through photocopies Ex. PZ1.
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9. PW6 SI Jitender Kumar was the SHO of PS Ladania, Madhubani Bihar, and had joined investigation with IO/SI Rakesh Rana who had already apprehended accused Vishnu, on 14.03.2011. When the police team had reached near the house of accused Ram Kishan Mukhiya, he had fled away on his motorcycle, on seeing him fleeing it was pointed out by accused Vishnu that he was his brother and that he was in possession of all the robbed articles besides having country made pistol and cartridges by using which, the offence was committed. Accused Vishnu had got a foldable black color Nokia mobile phone, recovered from house of accused Ram Kishan by opening the lock of door. It was seized by the police team that had come from Delhi after being sealed. One Hero Honda motorcycle No. BR 7B 0291 was also seized vide memo Ex. PW6/A. The mobile phone could not be produced before the witness for identification in court as the complainant, who had secured its release, claimed to have misplaced it.
10. PW7 Anuj Bhatia Nodal Officer, Vodafone furnished the call details of mobile No. 9899322727 standing in the name of Neeraj Bajaj, for period 01.03.2011 to 14.03.2011 as Ex. PW7/A. The copy of customer application Form with ID proof in respect of said connection is Ex. PW7/B and supporting certificate u/s. 65B of Evidence Act is Ex. PW7/C.
11. PW8 Jagbir Mukhiya belonging to the village of accused persons, stated that sometime in 2011, police had come to his village and had conducted some proceedings. They had obtained his thumb impression on a paper (Ex. PW5/B). He also SC No. 70/01/14 FIR No. 99/11 P.S. Model Town S/V Garbu Mukhiya & Ors. Page No. 8 of 27 identified accused Garbu Mukhiya as his covillager. The witness was crossexamined by Ld Addl. PP during which he was confronted with his previous statement Ex. PW8/A.
12. PW9 Shri Sumedh Kumar Sethi, Metropolitan Magistrate had conducted TIP proceedings of case property in this case on 27.04.2011, on the application of IO which had been marked to him. The witness had made statement Ex. PW9/A during the Test Identification Parade proceedings Ex. PW9/B. Statutory certificate regarding the said proceedings is Ex. PW9/C.
13. PW10 IO/SI Rakesh Rana has summed up the entire investigation and proved DD No.33A as Ex. PW10/A, endorsement on rukka Ex. PW10/B, the Crime Team Inspection report Ex. PW10/C, site plan Ex. PW10/D, application moved at PS Ladaniya for being provided assistance for search of accused persons and their houses, Ex. PW10/E, seizure memo of motorcycle of accused Ram Kishan Mukhiya Ex. PW10/F, the letter giving information of seizure of motorcycle addressed to PS Ladaniya Ex. PW10/G, application for transit remand of accused Vishnu moved before Ld. Chief Judicial Magistrate, Madhubani Ex.PW10/H, disclosure statement of accused Garbu Mukhiya Ex. PW10/J, information to Psolice Station Ladaniya about his arrest Ex. PW10/K, request letter to SHO Police Station Jai Nagar seeking police assistance Ex. PW10/L, search report at the instance of accused Garbu Ex. PW10/M, application for transit remand of accused Garbu Ex. PW10/N, application for TIP of accused Vishnu Ex. PW10/Q, application for production warrant of accused Vishnu and Garbu Ex. PW10/R, application for police remand of accused Vishnu Ex. PW10/S, pointing out SC No. 70/01/14 FIR No. 99/11 P.S. Model Town S/V Garbu Mukhiya & Ors. Page No. 9 of 27 memo of park and the scene of crime prepared at the instance of accused Vishnu Ex. PW10/T, application for obtaining Non bailable warrants against remaining five accused persons Ex. PW10/U, application for conducting TIP of case property Ex.PW10/V, application for copy of said proceedings Ex. PW10/W, delivery memo of recovered articles to the complainant as per court orders Ex. PW10/X, application for conducting TIP of accused Ram Briksh Ex. PW10/X2, copy of application for his TIP proceedings Ex. PW10/X3, pointing out memo of the spot by said accused Ex. PW10/X4 and by accused Darshan Mukhiya Ex. PW10/X5. The witness identified the case property in photographs.
14. PW11 ASI Joginder Singh had formally arrested accused Darshan Mukhiya on 01.10.2011 on being produced in Rohini court by ASI Pramod Kumar of Police Station Adarsh Nagar, on being arrested as a Proclaimed Offender vide memo Ex. PW11/A. His personal search was taken vide memo Ex. PW11/B. He had made disclosure statement Ex. PW11/C. An application for conducting judicial TIP of said accused Ex. PW11/D was moved on 03.10.2011. It was fixed for 07.10.2011, when the accused had refused to join the proceedings.
15. Since Ld. Addl. PP had chosen not to examine ASI Pramod and PSI Rajiv Kumar, by making statement on 14.02.2013, the evidence of prosecution was closed on 01.07.2016.
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16. In their statements separately recorded under Sec. 313 Cr. PC. Accused persons claimed to be innocent and falsely implicated in this case. It has been denied that any incriminating evidence/material was recovered from their possession/at their instance, they had denied knowledge about most part of the investigation conducted in this case and controverted the rest. It is stated that witnesses have deposed false and identified them in this case at the instance of IO. Accused Vishnu claimed that he had been introduced to the public witnesses as Suraj. The accused persons declined to lead evidence in defence.
17. I have heard Sh. P.K. Samadhiya, Learned Addl. Public Prosecutor for the State and Sh. Parveen Dabas, Learned Counsel for the accused persons and carefully perused the file. It has been contended on behalf of the state that the statement of complainant is quite natural. No hostility or grudge has been alleged against her by the accused persons. Since the accused persons had refused to participate in Judicial Test Identification parade, the complainant got the opportunity to see them in the court for the first time when she was able to correctly identify them. She had also identified the jewelry articles that had been recovered from accused Vishnu and Garbu, in TIP, as the same belonged to her. The angle of conspiracy for commission of offence can be gauzed from the fact that accused Vishnu had disclosed his fictitious name to the complainant just ten days prior to the incident at the time of being employed as Domestic Help. The complainant/PW2 has not been questioned about the identity of accused Vishnu Mukhiya and his assumed name in crossexamination. It is averred that elaboration by SC No. 70/01/14 FIR No. 99/11 P.S. Model Town S/V Garbu Mukhiya & Ors. Page No. 11 of 27 the witness in her deposition cannot be termed to be in contradiction with her main complaint. The conduct of accused Vishnu in not returning home during/after the incident invariably raised eyebrows. His arrest from his native place, recovery of part of robbed money and jewelery from his possession and identification, arrest and recovery of coaccuseds at his instance are clearly suggestive of his having hatched a conspiracy against the complainant with coaccuseds. It is also stated that recovery of weapon of offence is not essential for convicting an accused under Sec. 397 IPC. Since the perception of witnesses differ based on their retention power, the sole victim is quite trustworthy negativing the need for other witnesses for substantiating the offence.
18. Ld. Defence counsel on the other hand vehemently argued that the prosecution has left various vital witnesses viz. Nageshwar, Kamlesh, the employee of Chemist shop, maid of the ground floor of the building. All of them may have seen one or the other robber at different times but non joining them in investigation is a fatal flaw in the prosecution case. The court should also take notice of the fact that the complainant did not get the particulars of domestic servant verified by Police nor seems to have taken any of his documentary identity proofs carrying his photograph. No bill of jewelery articles or mobile phone has been submitted despite the complainant undertaking to produce them in court. Adverse inference therefore is liable to be drawn against the prosecution in this behalf. Sh. Dabas has also pointed out the variations in the statements of witnesses particularly the complainant while stressing that she has tried to improve her case. It is also submitted that there is no evidence of accused Vishnu having SC No. 70/01/14 FIR No. 99/11 P.S. Model Town S/V Garbu Mukhiya & Ors. Page No. 12 of 27 mingled with other accused persons. No mobile call details have been retrieved and proved to show that he had interacted with them at any time for conspiring to rob the complainant. The Police parties visiting the native place of accused persons did not find any independent witness from their village nor did they involve the local Police in investigation. The only independent witness PW8 has not supported the prosecution. By pointing out contradictions in the testimonies of witnesses, it is stated that the prosecution has failed to put up a cohesive case against the accused persons in the court and therefore the accused persons are entitled for acquittal. It is lastly stated that just on the basis of disclosure statements of accused persons, offence of dacoity cannot be fastened against them. Reliance on the judgment in Thimmareddy V. State of Karnataka, 2014(3) CC Cases (SC) 123 has been placed by Shri Dabas to contend that the prosecution has failed to show the existence of an agreement between the accused persons to commit an offence in its effort to prove the offence of criminal conspiracy. It is also resented the accused persons were arrested from another State without the following the procedure u/s.166 Cr.PC. No explanation for bypassing the laid down procedure has been offered which makes the entire alleged exercise of police doubtful. Further reliance on State V. Nitin Gunwant Shah, 2015 (9) LRC 75 (SC), has been placed to stress that neither any prior meeting of mind of accused has been proved nor any action, individually or in concert, was proved against any of the accused persons, therefore, foundation of prosecution story of conspiracy was never established.
19. The law relating to criminal conspiracy has been vividly enunciated in SC No. 70/01/14 FIR No. 99/11 P.S. Model Town S/V Garbu Mukhiya & Ors. Page No. 13 of 27 Ram Narayan Popli V. Central Bureau of Investigation, (2003) 3 SCC 641 that the elements of a criminal conspiracy are stated to be (a) an object to be accomplished, (b) a plan or scheme emboding means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons, whereby, they become definitely committed to cooperate for the accomplishment of the object by means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required, an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. Law making conspiracy a crime is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which coconspirators give to one another rendering enterprise possible which, if left to individual effort, would have been impossible, furnished the ground for visiting conspirators and abettors with condign punishment.
No doubt, in the case of conspiracy there cannot be any direct evidence. The essence of criminal conspiracy, i.e. an agreement to do an illegal act, can be proved either by direct evidence or by circumstantial evidence or by both. The circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. Its existence is a matter of inference. The inferences are normally deduced from acts of parties in pursuance of a purpose in common between the conspirators. It is not always possible to give affirmative evidence about the date of formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the SC No. 70/01/14 FIR No. 99/11 P.S. Model Town S/V Garbu Mukhiya & Ors. Page No. 14 of 27 object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference.
There must a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. Where the conspiracy alleged is with regard to commission of a serious crime of the nature contemplated in Section 120B read with the proviso to subSection (2) of Section 120A, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction u/s. 120B and the proof of any overt act by the accused or by anyone of them would not be necessary. The provisions, in such a situation do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfillment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established, the act would fall within the trappings of the provisions contained in Section 120B. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design.
20. Since the complainant /PW2 had not previously seen any of the intruders, the police could have attempted to trace them either on the basis of scientific evidence or SC No. 70/01/14 FIR No. 99/11 P.S. Model Town S/V Garbu Mukhiya & Ors. Page No. 15 of 27 following the immediate abnormal/unnatural circumstances/leads. The complainant has deposed that out of the three intruders, one had kept his face muffled and therefore, could not even be seen except his physical structure. The main accused had put on gloves before forcibly opening the drawers and taking out cash amount and valuables. Due to this reason, the mobile crime team could not lift any chance prints from the scene of crime as reported in Ex. PW10/C. The other possible evidence left behind by the robbers was bandage type rope Ex. P5 and pair of old slippers. It has been claimed by the IO/PW10 that dog squad had been called at the spot to trail the robbers, apparently on the basis of perspiration/smell of the owner of said pair of slippers but no report in this behalf was submitted/obtained. It may be observed here itself that even after arrest of the accused persons, no efforts to link the said piece of evidence left at the spot, was made by the Investigation Officer! It has not been stressed by either of the parties that bandage type rope also could have been useful in tracing the culprits by use of available scientific and technical methods.
21. The police thus developed the case on other factor i.e. the vanishing act of domestic servant 'Saroj', who had left by saying to the complainant that he will return in two minutes. There were no known compelling circumstances nor put forth subsequently, justifying his immediate retreat from the house in which he was engaged as domestic servant only few days back. Within minutes of his leaving, without informing the complainant, as she alone had remained in the house, to bolt the main gate, the robbers surreptitiously found way to her bed room. The room of 'Saroj' on the SC No. 70/01/14 FIR No. 99/11 P.S. Model Town S/V Garbu Mukhiya & Ors. Page No. 16 of 27 roof was also subsequently found to have been ransacked as if some one had hurriedly taken out valuables and left. The mysterious absence of servant was pointed out by the complainant to the IO not only in her complaint Ex.PW2/A but also to the Mobile Crime team as it finds mention in inspection report Ex.PW10/C. The domestic servant thus was the obvious suspect of organizing the loot.
22. Since Saroj had been employed only a few days back, on being referred by Nageshwar, who was running a placement agency, the police naturally contacted him. Nageshwar in turn, provided the particulars of a house in Roop Nagar where a co villager of 'Saroj' was deployed by him for working as servant. The said covillager, Kamlesh aged about 1415 years, was called and inquired about 'Saroj'. He had spilled the real name of 'Saroj' to be Vishnu Mukhiya and provided the particulars of his village. The aforesaid factors made 'Saroj'/Vishnu more suspect and therefore the police team immediately dashed off to Madhubani, Bihar so as to apprehend him in his village before he could find time to dispose of the robbed articles, if he were having any. The attempt of first team visiting his village Kavilasha, however did not yield result. The second team comprising IO/PW10 SI Rakesh Rana landed there on 08.03.2011 and made renewed efforts to search Vishnu. It bore fruit on 14.03.2011 with the apprehension of Vishnu on the basis of secret information. The fact remains that the police neither had the photograph of Vishnu for identifying him nor the complainant was accompanying them to Madhubani yet he was correctly recognized by the complainant as the person employed by her for domestic chores and that he had introduced himself as 'Saroj'. The SC No. 70/01/14 FIR No. 99/11 P.S. Model Town S/V Garbu Mukhiya & Ors. Page No. 17 of 27 recovery of cash amount of Rs.10,000/ and part of the robbed jewellery of complainant totally exposed him qua his role in the commission of offence. There is no material to perceive nor alleged that the complainant had any cause or grievance, except this case, to falsely implicate him. The accused had also got recovered the mobile phone that the complainant had provided to him. The accused Vishnu had refused to participate in TIP proceedings on 23.03.2011 by saying that he was known to the witness as he had been working in the house for sometime.
23. The police team visiting Village Kavilasha from 05.03.2011 onwards might have come across the other accused persons but their identity and particulars became known only after the arrest of accused Vishnu. The recovery of part of the robbed jewellery and cash of Rs.12,500/ from accused Garbu provided credibility to the disclosure statement Ex.PW4/D of accused Vishnu. The jewellery articles recovered from both these accused persons were correctly identified by the complainant on 27.04.2011 in TIP proceedings Ex.PW9/B conducted by Shri Sumedh Kumar Sethi, Metropolitan Magistrate.
24. The other two accused persons Ram Briksh and Darshan were apprehended more than six months after the date of commission of offence and therefore no robbed article could be recovered from their possession/at their instance. Both had refused to participate in judicial TIP but were duly identified by the complainant in court on 22.02.2012 to be the intruders who had initially entered into her bed room. The third SC No. 70/01/14 FIR No. 99/11 P.S. Model Town S/V Garbu Mukhiya & Ors. Page No. 18 of 27 accused with muffled face had come inside after them. The sequence of events that took place in the afternoon of 02.03.2011 with complainant could not have taken place without meeting of minds at least of three intruders with 'Saroj'/Vishnu Mukhiya, the domestic servant. Under that game plan, Vishnu had gone out of the house leaving the gate ajar, after hurriedly collecting his essential articles, without informing the complainant and rather without giving her an inkling that he is finally leaving. There is nothing to discern that the three intruders had also gone to the room of 'Saroj' after tying the complainant in the bathroom and had ransacked it. On coming out, his signal had apparently triggered the movement of coaccuseds who actually perpetrated the offence and decamped with looted money and jewellery articles of the complainant. Had Vishnu tried to take away all his articles from the house, it may have been noticed by the complainant or her neighbors which had the potential of causing delay in executing the game plan or altogether frustrating it. The insistence of three intruders 'abhi aur hai, de mujhe' also indicate that one of the conspirators living in the house had been keeping a close eyes on the occupants of house as to where they had been keeping their valuables and estimated quantum thereof. This tab must have been the basis for insistence of three intruders with the complainant. The circumstances existing before, during and after the commission of offence, just point a direct finger towards accused Vishnu and reveal his complicity with coaccuseds as they were conducting themselves in tandem/ understanding with each other. Even if therefore, accused Vishnu had not actually committed the offence of robbing the complainant, he was very much part of criminal conspiracy to rob her. All the essential elements as have been laid down in the afore SC No. 70/01/14 FIR No. 99/11 P.S. Model Town S/V Garbu Mukhiya & Ors. Page No. 19 of 27 cited judgment, are manifest in the case in hand.
25. Undoubtedly, some of the limbs, which proved vital in cracking the case, have been left unprojected in investigation till when the case was submitted for adjudication but it is settled proposition of law that a defective investigation unless affects the very root of prosecution case and is prejudicial to the accused, should not be an aspect of material consideration by the court. Gajju V. State of Uttrakhand, (2012) 9 SCC 532. The sentiments also find echo in Ravi V. State, Crl. Appeal No.1278/2010 decided by Hon'ble Division Bench of High Court of Delhi on 22.01.2015 that defective/irresponsible investigation does not ipso facto entitle accused to acquittal. Reference in this context may also be made to Dayal Singh V. State of Uttranchal, (2012) 8 SCC 263 and Hema V. State, (2013) 10 SCC 192. Undoubtedly, associating Nageshwar, Kamlesh, the chemist boy and the maid servant would have been helpful in concreting the involvement of accused persons but their absence is not so grave as to jeopardize the edifice of prosecution case. No grudge has been expressed by the accused persons against the complainant. No question was put to her in crossexamination about having any axe to grind against any or all of them. There was no question or basis for false implication of the accused persons by the complainant, a female, who was of about 57 years of age at the relevant time.
26. It is a matter of common experience that public persons dither from joining police proceedings lest they are seen with criminals/suspects in criminal cases with SC No. 70/01/14 FIR No. 99/11 P.S. Model Town S/V Garbu Mukhiya & Ors. Page No. 20 of 27 likelihood of suffering brunt at their hands subsequently. They also intend to avoid making repeated visits to the police station and thereafter, the court over long period of time with entailing expense of time, money and energy without matching recoupment. In the present case, the circumstances for public persons to join investigation were even remote as the case pertains to a different state and they would have to undertake travel of not less than 1000 kilometers for deposing in the matter involving one of their co villagers. As has turned out, the only public witness PW8 Jagbir Mukhiya resiled from the prosecution story. Here it would be apt to cite Kalpnath Rai V. State (Central Bureau of Investigation), AIR 1998 SC 201 that there can be no legal proposition that evidence of police officers, unless supported by independent witnesses is unworthy of acceptance. Nonexamination of independent witness or even presence of such witness during police raid would however cast an added duty on court to adopt greater care while scrutinizing the evidence of police officers. On similar lines, it was observed in Balbir Singh V. State, 1997 (1) CCC 15 (SC) that where none of the prosecution witnesses bore any ill will or malice against the accused, merely because they belong to police force, their evidence cannot be said to be tainted. Nevertheless since the departmental witnesses would be interested in success of prosecution case, prudence requires that their evidence be scrutinized carefully.
27. So far as the objection pertaining to nonjoining of neighbors of complainant is concerned, it is not a case where complainant may have shouted or shrieked on the arrival of accused persons. At that time of the day the residential SC No. 70/01/14 FIR No. 99/11 P.S. Model Town S/V Garbu Mukhiya & Ors. Page No. 21 of 27 premises generally have skeletal occupancy and even they remain in relaxed mode. The movement on the stairs is also less. It is therefore, not incomprehensible that none of the neighbors of complainant could notice the happening in her house. Regarding the need and feasibility of joining public witness during investigation in Madhubani, Bihar, in the crossexamination of PW4 HC Naresh Kumar, PW5 Ct. Kuldeep Singh and PW 10/IO/SI Rakesh Rana and of course PW6 SI Jitender of Bihar Police, then posted as SHO of PS Ladaniya, no material contradictions could be culled to doubt the apprehension of accused Vishnu and Garbu from the stated places or recovery of robbed money and jewelry articles at their instance. The inclusion of PW6 belonging to local police station of Bihar, in that part of investigation is not only sufficient compliance of the provisions of Section 166 Cr. PC but also an assurance of the exercise being genuine as PW6 had no pressure on him for the success of case. The accused Rambriksh duly identified by PW2/Complainant as the intruder accompanying the one having country made pistol in his hand, even if, did not retrieve any of the robbed articles yet being part of conspiracy is found to have played active part in the commission of offence. Similarly accused Darshan Mukhiya also could not be found with any of the looted property yet was identified by complainant Mrs. Rekha Makkar to be the intruder who had country made pistol in his hand and had broken the almirah for taking out cash and valuables. Except claiming to have been falsely implicated in this case, the accused persons had no digestible explanation to offer under Sec. 313 Cr.PC.
28. The contention of defence that basing conviction relying only upon the SC No. 70/01/14 FIR No. 99/11 P.S. Model Town S/V Garbu Mukhiya & Ors. Page No. 22 of 27 version of sole witness/victim may be dangerous, is without edifice. The offence purposely committed at such a time when there was only one occupant in the house, cannot be left unattended just because other witnesses of the commission of offence could not be mustered. Placing reliance on various judgments including Vadivelu Thevar V. State of Madras, AIR 1957 SC 614 and Bhimappa Chandappa V. State of Karnataka, (2006) 11 SCC 323, it was held in Namdeo V. State of Maharashtra, 2007 Crl.LJ 1819 that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134, Evidence Act,1872) nor the judiciary mandates that there must be particular number of witnesses to record in order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence, rather than, on quantity, multiplicity or plurality of witnesses. It is therefore open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused inspite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eye witness, therefore has no force and must be negatived. The ratio sufficiently meets the argument of defence.
29. It has been argued that the complainant has tried to improve upon her case. A close perusal of testimony of PW2/complainant however does not so reflect. The elaboration sought from a witness in crossexamination, cannot be counted as improvement in her case. Only new material, substantially different from the prosecution's story can be so clouded. Ld. Defence counsel did not specifically point out SC No. 70/01/14 FIR No. 99/11 P.S. Model Town S/V Garbu Mukhiya & Ors. Page No. 23 of 27 such improved version of the complainant, which can be discerned to have taken the accused persons by surprise and prejudiced their defence. The objection is thus repelled.
30. Although, people employing domestic servant should remain vigilant, for their own security and safety, to get the particulars of new entrant verified by local Police but default on that account by the employer cannot be portrayed for condoning the acts of an errant servant. The defaulting employer may be proceeded against in this behalf under relevant legal provisions. It appears in this case that the accused 'Saroj'/Vishnu Mukhiya had been employed by the family of complainant from a placement agency being run by Nageshwar. They may have remained under a bonafide impression that the placement agency must have verified the antecedents of referred help and themselves did not take any step in this behalf.
31. The complainant had stated that she will produce the bills of her robbed jewelry articles in court but failed to do so. She had explained that her jewelry articles are quite old and therefore their bills are not traceable. Similar explanation was furnished by her for the mobile phone recovered at the instance of accused Vishnu, which she had provided to him during his employment. Although the complainant was expected to make a clear statement in this behalf at the first instance yet nothing much turns on her failure as it is backed by a sound and plausible explanation. It is a matter of common experience that people do not retain bills/receipts of the articles purchased by them, for a long time.
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32. I would concur with Ld. Defence counsel that just because the accused persons have named three more persons to be their coconspirators for looting the complainant, the offence of dacoity cannot be invoked. The complainant has spoken only about three intruders out of whom she was able to identify Darshan Mukhiya with katta and Rambriksh. She could not identify the third person as he had kept his face muffled all through. Accused Vishnu Mukhiya was the first to be identified being her domestic servant, who turned out to be the main service provider/facilitator to other accused persons. Even if, therefore, Ram Kishan Mukhiya, Joginder Mukhiya and Manoj Mukhiya are apprehended, there is no scope of their being identified as coconspirators or of recovery of any of the robbed articles. Even the involvement of accused Garbu in the commission of offence of robbery could not be succinctly established by the prosecution and going by the disclosure statement of accused persons he had neither come to Delhi, nor made provision/arrangment for country made pistol or participated in the conspiracy.
33. It has been forcefully argued by Sh. Dabas, Ld defence counsel that when the alleged country made pistol used by one of the robbers for committing the offence has not been recovered, how can criminal consequences thereof be fastened on the accused persons? It is further stated that the alleged weapon having not been used, it would be too exaggerated to presume that the stated firearm was in working order. The argument suffers from inherent fallacy. The complainant did not even know the SC No. 70/01/14 FIR No. 99/11 P.S. Model Town S/V Garbu Mukhiya & Ors. Page No. 25 of 27 description with which the weapon carried by one of the intruders was known. She accepted that she cannot distinguish between pistol, katta, revolver etc. On being probed in crossexamination she explained that she had stated said weapon to be 'katta' bacause the accused persons were calling it by that name. She however was aware of its use and deposed that the katta holder had pointed it on her chest. Initially she did not understand the reason of three persons barging into her bedroom but when they made their intentions clear by saying, "Main tere ko lootne aya hoon", snatching away her mobile and snapping the telephone wires, she could not resist, obviously out of fear of suffering physical harm otherwise. It is immaterial whether katta used for committing the offence really worked or not. It had served its purpose. When the star witness of prosecution has been able to categorically identify the accused who had used the katta, its non recovery on apprehension of that or the other accused will not douse the offence. It has been held in Dev Kant Kamat V. State (NCT of Delhi), 235 (2016) DLT (CN) 8 that nonrecovery of crime weapon is inconsequential.
34. In view of above discussions, the accused persons acquitted for the offence punishable under Sec. 395 read with Sec. 120B IPC. Accused Vishnu Mukhiya, Rambriksh and Darshan Mukhiya, however, are found to have committed the offence of robbing the complainant of her jewelry and cash amount. They are convicted under Section 392/120B IPC. Accused Dharshan Mukhiya having used a country made pistol, invariably a deadly weapon while robbing the SC No. 70/01/14 FIR No. 99/11 P.S. Model Town S/V Garbu Mukhiya & Ors. Page No. 26 of 27 complainant is also convicted under Sec. 397 IPC. Accused Vishnu Mukhiya and Garbu Mukhiya having been found with robbed articles of complainant, which they had received or retained having knowledge or reason to believe the same to be stolen/robbed property, are convicted under Sec. 411 IPC.
Let they be heard on the point of sentence on 08.03.2017.
Announced in the open court
on 28th February, 2017 (Sunil K. Aggarwal)
Addl. Sessions Judge04 (N/W)
Rohini Courts, Delhi
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