Delhi District Court
State vs (1) Mohd. Irfan Khan @ Sonu on 14 November, 2017
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02 : SOUTH EAST
SAKET COURT : NEW DELHI
IN RE: ID No. DLSE010001082011
SC No. 2111/16
FIR No.301/10
PS Pul Prahladpur
State Versus (1) Mohd. Irfan Khan @ Sonu
S/o Shri Bhure Khan
R/o Village Sawai Umariya,
Police Station Tejgarh
PO Madhing Kheda,
Distt. Daamo, M.P.
(2) Mehtab Ali @ Gupta
S/o Shri Kayam Ali
R/o Village Newada Police Station
and Post Office Baghpat
District Baghpat, U.P.
__________________________________________________________
Date of Institution : 26.03.2011
Date of arguments : 14.10.2017
Date of judgment : 14.11.2017
JUDGMENT
1. The prosecution case is that on 29.11.10, Paramjeet Singh, owner of Akal Transport Company lodged a complaint that on SC No. 2111/2016 1 of 32 27.11.10, his driver namely Suraj had taken one container No. CAXU287732720 from Tughlakabad containing plastic dana on the truck No. HR37B5209 and had started at 9 PM for Maya Puri, but it did not reach the destination i.e. M/s Doshi Plastic, Maya Puri. On this complaint, FIR was registered u/s 407 IPC against the driver namely Suraj s/o Keshav.
2. On 04.12.10, SI Mahender Singh who was investigating the case received an information from Police Station Sadar, Sonepat, Haryana alongwith inquest paper of the driver Suraj vide letter No.8699/AC3/Addl.CP/SED dated 04.12.10. It was informed that on 01.12.10, the truck bearing No. HR37B5209 was found abandoned at Sector7 Road, Sonepat, Haryana with a dead body lying on the back seat of cabin with a rope tied around his neck. The truck was found having 33 bags of plastic dana. It was seized by ASI Dharambir PS Sadar, Sonipat. This dead body was identified by Paramjeet Singh (complainant in this case) as that of his driver Suraj which was sent for postmortem in Civil Hospital, Sonepat from where it was sent to PGI, Rohtak and after the postmortem, the dead body was handed over to his family members. The cause of death was opined strangulation with smothering. The viscera however, was preserved for chemical analysis. On receipt of this information, sections 392/302/201 IPC have been added in the FIR.
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3. On 05.12.10, a secret information was received at Anti Robbery Cell, Crime Branch, Nehru Place on which a raiding party was formed which reached near Narela Industrial area at about 2:50 PM. On the basis of the secret information received, they intercepted one truck bearing No. UP171705 at about 3:10 PM, while it was coming from Karnal side. The truck was being driven by one Irfan Khan @ Sonu (accused herein) and one Mehtab Ali (accused herein) was sitting beside him. This truck was found containing 350 gunny bags of plastic dana with words ABS, LG CHEM made in Korea net wight 25 kg written on each of them. On sustained interrogation, Irfan Khan disclosed that he along with one Parkash (he could not be arrested during investigation) duped deceased Suraj by mixing sleeping pills in his liquor at ICD, Tughlakabad and robbed his truck loaded with plastic dana at Newada, Baghpat and sold it to Mehtab (accused) and Kasim (he was discharged in the case). The driver of robbed truck namely Suraj was strangulated to death by them. Thereafter, he along with Parkash left the truck abandoned with dead body of Suraj Bhalgarh, Sonepat Road. The accused Mehtab disclosed that he with Kasim purchase plastic dana and strangulated Suraj to death. Irfan and Mehtab disclosed that part of robbed dana is lying in a truck parked abandoned in the area of Narela. At their instance, one truck bearing no. UP12D9779 was found abandoned SC No. 2111/2016 3 of 32 contained 250 gunny bags filled with plastic dana.
4. SI Sanjay Neolia, ARC, Crime Branch arrested both accused under section 41.1(D) Cr.P.C. and bags containing plastic dana were seized under section 102 Cr.P.C. He verified from PS Pul Prahladpur and found that a FIR No. 301/10 was registered under section 302/392/201 IPC. On 06.12.2010, information regarding arrest of accused persons namely Irfan and Mehtab was conveyed to Insp. Desh Raj vide DD No. 12A dated 06.12.2010. He arrested them in FIR No. 301/10 from Rohini Court on 06.12.2010. During investigation, their disclosure statements were recorded and they also pointed out the place where Suraj was administered with sleeping pill with liquor; the place where they murdered Suraj and uploaded robbed material in separate trucks. Accused Irfan also pointed out the place where the truck no. HR37B5209 was abandoned with the dead body. On 09.12.2010, at the instance of accused Mehtab, coaccused Kasim was also arrested. However, police could not apprehend Parkash who was accomplice in the crime. The exhibits of case i.e. ligature material, viscera of deceased and his clothes were deposited with FSL, Rohini.
5. After completion of investigation, the charge sheet was filed for the offences under 302/392/201/411/34 IPC against accused Irfan, Mehtab and Kasim. Ld. MM took cognizance of the offences u/s IPC SC No. 2111/2016 4 of 32 and committed the case for trial to the Session's Court. My Ld. Predecessor vide order dated 21.01.2012 framed charges against the accused Irfan and Mehtab Ali for offence u/s 302/392/211 IPC read with section 34 IPC and discharged the accused Kasim. Accused pleaded not guilty to charge and claimed trial.
6. In order to prove its case, the prosecution led the evidence and had examined following witnesses: i. PW1 is HC Zakir Hussain. He was the duty officer on 30.11.2010 at PS Pul Prahladpur, who registered the FIR No. 301/10 Ex.PW1/A on the basis of the rukka sent by SI Mahender Singh. ii. PW2 is Paramjeet Singh, the owner of M/s Akal Transport Company. He was the owner of truck No. HR37B5209. He had made a complaint that in October 2010, plastic dana was loaded in a container which was to be transported to Mayapuri on the said truck, however the goods were not delivered at Mayapuri. Therefore, he lodged a complaint Ex.PW2/A. He deposed further that he was informed by the police about the recovery of his truck near Sonepat with the dead body of its driver Suraj inside the truck. He went to Sonepat and found the truck parked near Deewan Banquet, Sonepat. The truck was seized by the police in his presence vide memo Ex.PW2/B and the dead body was seized vide memo Ex.PW2/C in his presence.
SC No. 2111/2016 5 of 32 iii. PW3 is Shri Dinesh Jain, proprietor of M/s Doshi Plastic Industries, Mansarovar Gaden. He deposed that he had ordered for supply of plastic dana (ABS) from LG Chemicals, Korea, which was received in India through shipment. He deposed that the goods never reached his company and the transporter had informed them that the goods have been seized by the police. He deposed that the said recovered goods i.e. 623 bags were released to him on superdari vide superdarinama Ex.PW3/A while 10 bags were kept by the police as sample.
iv. PW4 is Shri Jai Prakash Bhojak, Manager of M/s Doshi Plastic Industries. He deposed about placing an order of 60 metric ton of plastic dana from LG Chemicals, Korea. He deposed that the company was informed about missing of one container containing the plastic dana. He has placed on record the bill of lading Ex.PW4/A, commercial invoice Ex.PW4/B and bill of entry Ex.PW4/C, which were seized by the IO vide Ex.PW4/D. v. PW5 is HC Girdhari Lal. He was the MHC(M) at PS Pul Prahladpur on 20.12.2010. He sent two pullandas with the seal of FM to FSL, Rohini through Ct. Roshan Lal.
vi. PW6 is SI Mahesh Kumar, Draftsman, Crime Branch. He deposed that he had prepared the site plan Ex.PW6/A after visiting the site along with ASI Dharamvir of PS Sadar, Sonepat and Insp.
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Desh Raj.
vii.PW7 is Shri Sunil Kumar, who was handed over the dead body of deceased Suraj vide memo Ex.PW7/A. viii.PW8 is Shri Narender Kumar. He was the owner of TATA truck no. UP12D9779.
ix. PW9 is Shri Kehav Ram, who had identified the dead body of deceased Suraj.
x. PW10 is Shri Sanjay. He was running a medical store at Baghpat and deposed that Mehtab Ali, one of the accused in the case was used to purchase the medicine Alprex from his shop. xi. PW11 is Smt. Parvati. She is the owner of truck No. UP171705 (the accused were apprehended along with the stolen goods in this truck).
xii.PW12 is Ct. Ashok Kumar. He was the member of team from Anti Robbery Cell, which had apprehended the accused Irfan Khan and Mehtab Ali. He deposed that on 05.12.2010 while posted in Anti Robbery Cell, he received an information that Irfan Khan along with Mehtab Ali would come to Narela to sell the plastic dana received by him in a robbery. He shared the information with SI Sanjay Nevolia, who in turn informed ACP Sanjay Tyagi and Insp. Richpal Singh. A raiding party was formed which included Insp. Richpal Singh, HC Ajeet, HC SC No. 2111/2016 7 of 32 Sandeep, Ct. Manoj, Ct. Mohit, Ct. Nihal and him. They left their office at about 1.20 pm and reached the spot at Traffic Light, Narela at 2.50 pm. At about 3.05 pm, a vehicle TATA 407 bearing no. UP171705 came from the Karnal side which was intercepted. The accused Irfan Khan was driving the truck and accused Mehtab Ali was sitting beside him. They both were apprehended and their disclosure statement was recorded vide Ex.PW12/A and Ex.PW12/B respectively. He deposed that 350 bags of plastic dana were recovered from the vehicle. He further deposed that both the accused then led the police party to LIG Flats, Narela where they pointed out vehicle TATA 407 bearing no. UP12D 9779 which was parked on a service road. The accused recovered the key of the vehicle which was under the front tyre of the vehicle. This truck was found containing 250 bags of plastic dana which were seized vide memo Ex.PW12/C. Thereafter, they returned to the office.
xiii.PW13 is Ct. Sube Singh. He had accompanied Insp. Desh Raj on 06.12.2010 in the investigation of the case. He deposed that the accused Irfan Khan and Mehtab Ali were produced in the court at Rohini and were arrested vide arrest memo Ex.PW13/A and Ex.PW13/B respectively.
xiv.PW14 is SI Sanjay Neolia. He was also the member of the SC No. 2111/2016 8 of 32 raiding team of Anti Robbery Cell, Crime Branch which had apprehended the accused Irfan Khan and Mehtab Ali on 05.12.2010. His deposition is on the same line as that of PW12 Ct. Ashok Kumar. In addition to that, he also deposed that he had prepared a kalandra Ex.PW14/E and he informed the duty officer of PS Pul Prahladpur regarding the arrest of accused and recovery of gunny bags.
xv.PW15 is Ct. sunil Kumar. He deposed that on 30.11.2010, he along with SI Dharam Pal and Ct. Sube had gone to Rohini court. xvi.PW16 is Ct. Arvind Kumar. He deposed that on 08.12.2010, he had joined the investigation with Insp. Desh Raj and had visited PS Sadar, Sonepat from where ASI Dharamvir had joined them in the investigation. The accused Irfan Khan and Mehtab Ali had led them to the place of incident where Insp. Desh Raj had prepared the site plan at their pointing out memo.
xvii.PW17 is Ct. Manoj, who joined the investigation with SI Dharam Pal when at the instance of the accused Mehtab Ali and Irfan Khan, one Kasim was apprehended from Shaitan Chawk (Kasim had already been discharged in this case). xviii.PW18 is Dr. Hitesh Chawla from Department of Forensic Medicine, SHKM Govt. Medical College, Nalhar, District Mewat (Haryana). He has proved the postmortem report of deceased SC No. 2111/2016 9 of 32 Suraj as Ex.PW18/A. xix.PW19 is Ct. Nihal Singh. He was also a member of the raiding party from Anti Robbery Cell which has apprehended the accused Irfan Khan and Mehtab Ali along with truck no. UP171705 on 05.12.2010. His statement is on the same lines as that of PW12 Ct. Ashok Kumar and PW14 SI Sanjay Neolia.
xx.PW20 is ASI Rohtash Singh. He was posted at PS Sadar, Sonepat, Haryana on 01.12.2010. He deposed that he had received an information regarding a truck parked at Sector 7, Sonipat wherein a dead body was found lying on the rear seat behind driver seat and 33 bags were found in the truck. He deposed that ASI Dharamvir came and inspected the spot. ASI Dharamvir seized the truck bearing registration no. HR37B5209 vide memo Ex.PW2/B. He deposed that on the direction of ASI Dharamvir, he had taken the dead body to government hospital, Sonipat from where it was referred to PGI, Rohtak. He deposed that postmortem of dead body was conducted which was later on handed over to the father of the deceased. He deposed that the doctor had handed over to him one box containing viscera of deceased which he handed over to the IO.
xxi.PW21 is SI Dharam Pal (retired). He deposed that on 08.12.2010, he was posted at PS Pul Prahladpur. He deposed that SC No. 2111/2016 10 of 32 he joined investigation with Insp. Desh Raj, Ct. Sunil and Ct. Arvind and visited PS Sadar, Sonipat (Haryana) with both the accused, who were in police custody remand. He deposed that IO seized the truck which was parked outside the police station and 33 bags of plastic dana loaded therein. He deposed that IO Insp. Desh Raj had prepared seizure memo Ex.PW21/A. The accused had pointed out the place of incident vide pointing out memo Ex.PW21/B. He further deposed that they returned to ICD, Tughlakabad where accused Irfan had pointed out the place of incident vide pointing out memo Ex.PW21/E. He also deposed about the apprehension of the accused Kasim, who has been discharged.
xxii.PW22 is ASI Dharamvir Singh. He deposed that on 01.12.2010, he was posted at PS Sadar, Sonipat. He deposed that he had found truck no. HR37B5209 with the dead body of a male lying in the cabin from the seat behind the seat of driver. He deposed that he contacted the owner of the truck namely Paramjit Singh, who identified the dead body of deceased Suraj. He deposed that he called crime team official at the spot. He deposed that he recorded statement of Paramjit Singh, who had handed over to him a copy of FIR No. 301/10 PS Pul Prahladpur, which is Ex.PW1/A. The statement of Paramjit Singh is Ex.PW2/A on which he made his SC No. 2111/2016 11 of 32 endorsement vide memo Ex.PW22/A. He deposed that he seized the truck and container and deposited the same in the maalkhana and conducted inquest proceedings u/s 174 Cr.P.C. vide memo Ex.PW22/B. The dead body was sent to General Hospital, Sonipat through Ct. Rohtash from where the deceased was referred to PGI, Rohtak. He deposed that HC Rohtash got the postmortem of the deceased conducted in the PGI, Rohtak and obtained one box containing viscera of the deceased, which he deposited in the maalkhana. He further deposed that on 08.12.2010, Insp. Desh Raj along with other officials came to PS Sonipat. He joined the investigation with them.
xxiii.PW23 is HC Roshan. He deposed that on 20.12.2010, he was posted at PS Pul Prahladpur. On that day, he took a box containing viscera of the deceased and the sample seals to FSL Rohini and another pullanda having seal of FM, which was also deposited at FSL Rohini.
xxiv.PW24 is Dr. Randeep Kumar. He was Incharge, Scene of Crime, Sonipat. He has proved his report Ex.PW24/A. xxv.PW25 is SI Rajinder Singh, who was Incharge of Maalkhana PS Sadar, Sonipat, Haryana on 01.12.2010 and also on 02.12.2010, when truck bearing no. HR37B5209 with 33 bags of plastic dana and four pullandas were deposited with him under receipt.
SC No. 2111/2016 12 of 32 xxvi.PW26 is SI Mahender Singh (retired), who was posted at PS Pul Prahladpur on 30.11.2010. He deposed that he received a complaint on which he made his endorsement Ex.PW26/A and got the FIR registered. He deposed that on 05.12.2010, he received documents from PS Sadar and thereafter, he added section 392/302 IPC in the FIR.
xxvii.PW27 is Dr. Dhruv Sharma, who has proved the biological and serological examination report vide Ex.PW27/A and Ex.PW27/B and another reports dated 08.12.2011 vide Ex.PW27/C and Ex.PW27/D. xxviii.PW28 is Shri Sri Narian, Assistant Director (Chemistry), FSL, Rohini, Delhi. He received the viscera of the deceased Suraj in a sealed parcel on 20.12.2010 and gave his report Ex.PW28/A. As per his report, Ex.A1, A2 and A3 were found to contain ethyl alcohol.
xxix.PW29 is Ct. Vinod Kumar, who had taken the photographs of the dead body and truck on 01.12.2010 vide photographs Ex.PW22/D1 to Ex.PW22/D4.
xxx.PW30 is Insp. Desh Raj Yadav. He is the Investigating Officer of the case.
7. The accused were explained incriminating evidence against them in the statement of witnesses when examined u/s 313 Cr.P.C.
SC No. 2111/2016 13 of 32 The accused Mehtab Ali had taken the plea that he was picked up by some persons in a Santro car on 03.12.2010 at around 4/4.30 pm from his village Nivada, Baghpat and was falsely implicated in the present case. In support of his defence, he examined DW1 Tofeeq, who deposed that on 03.12.2010, accused Mehtab Ali was picked up by some persons from his village in a Santro car. DW2 is Shri Qayam Ali, father of Mehtab. He deposed that he was informed by Tofeeq that Mehtab has been picked up by some persons in civil clothes on 03.12.2010. Thereafter, he lodged complaint with the local police of Baghpat and also sent telegram to several authorities like Human Rights Commissioner, New Delhi, Police Authority of Baghpat, DIG, Chandigarh and Haryana. He has produced the copy of the telegram Ex.DW2/B1 to Ex.DW2/B3. The copy of the letter address to Human Rights Commission, New Delhi is Ex.PW2/C. DW3 is Shri S. K. Bhattacharya, Section Officer, National Human Rights Commission, who deposed that the complaint of Shri Kayyam Ali was received in the office on 06.12.2010 which was submitted before the Commission on 03.01.2011 and was sent for necessary action to the Secretary, Uttar Pradesh, Human Rights Commission, Lucknow vide letter Ex.DW2/C. DW4 is SI Sushil Kumar PS Baghpat, U.P. He deposed that a telegram dated 04.12.2010 addressed to S.P. Baghpat was received on 05.12.2010 for which an entry was made in SC No. 2111/2016 14 of 32 register vide Ex.DW4/A. The report of Shri Ajay Shankar Rai is Ex.DW4/B.
8. The accused Irfan had taken a defence in the statement u/s 313 Cr.P.C. that on 26.11.2010, he had gone to Chandigarh and he returned on 30.11.2010. He was called by Paramjit Singh in his office, who took him to the office of Crime Branch where he was apprehended by the police. He has not preferred to lead any evidence in his defence.
9. I have heard the arguments from the Ld. Public Prosecutor for the State and the respective counsel of the accused Irfan Khan and Mehtab Ali. I have also perused the statement of witnesses examined by the prosecution and the documents which have been placed on record.
10. Learned Additional Public Prosecutor has argued that the accused Irfan Khan and Mehtab Ali have been found in possession of the stolen bags of plastic dana and the recovery of the stolen article from their possession invite presumption u/s 114(a) of the Evidence Act that they were responsible for the robbery as well as the murder of deceased Suraj, the driver of the truck No. HR37B5209. He submitted that the recovery from the possession of the accused persons has been proved by PW12 Ct. Ashok Kumar, PW14 SI Sanjay Neolia and PW19 Ct. Nihal Singh . He further submitted that SC No. 2111/2016 15 of 32 the death of the deceased Suraj had taken place by strangulation and in this regard there is the postmortem report by PW18 Dr. Hitesh Chawla wherein cause of death has been shown as strangulation and smothering. He argued that the accused were not able to explain their possession of the stolen property. Therefore, the only legal inference could be that they were the perpetrator of the crime of robbery and the murder as well. He submitted that the prosecution has proved its case against the accused beyond reasonable doubt.
11. On the other hand, Ld. Counsel for the accused persons have argued that the recovery alleged from the possession of the accused persons is false and it has been planted upon them. Ld. Counsel for the accused Mehtab has argued that the accused has no connection with the offence. He was picked up from his village in Nivada, Baghpat on 03.12.2010. This fact has been proved by DW1 to DW4. He argued that since the apprehension of the accused on 05.12.2010 as claimed by the prosecution is doubtful, the entire prosecution case falls flat. He further argued that PW10 Sanjay has deposed about the accused Mehtab purchasing Alprex tablets from him. However, this statement does not connect the accused with the offence. He argued that in the viscera report of the deceased Suraj, there is nothing to suggest about the presence of any sedative substance in his blood except ethyl alcohol. He further submitted that SC No. 2111/2016 16 of 32 purchasing of Alprex tablets from the chemist is not an evidence regarding the culpability of the accused. He further argued that there is no evidence that accused Mehtab had any connection with the alleged trucks which have been apprehended and recovered at their instance. The Ld. Counsel for the accused Irfan Khan also argued that the recovery of a truck from Narela Industrial area cannot be connected with the accused as there is no evidence to show that accused Irfan had any nexus with the said truck. He further argued that as per the disclosure statement of the accused persons, which has been relied by the prosecution, one Parkash was instrumental in conspiring with the accused to rob the truck laden with plastic dana driven by deceased Suraj. However, the said Parkash has not been apprehended by the police. This shows that the disclosure statement is a concocted story of the prosecution. It was also argued that as per the prosecution, the raiding team of Anti Robbery Cell, Crime Branch was headed by Insp. Richpal. However, for the reason best known to the prosecution, he was neither cited as a witness nor tendered as a witness in this case.
12. The case of the prosecution is based on the recovery of the stolen plastic dana from their possession. The prosecution has examined PW2 Paramjit Singh, who has deposed categorically that the truck bearing no. HR37B5209 was one of the vehicle owned by SC No. 2111/2016 17 of 32 him and he runs a transport company by the name of Akal Transport Company at Vishwakarma Colony, Tughlakabad. His deposition that in October 2010, a container containing plastic dana was sent to Mayapuri. The container was kept on the truck no. HR37B5209 which was being driven by Suraj (deceased). When the truck did not reach the destination, he made complaint at PS Pul Prahladpur vide complaint Ex.PW2/A. On the basis of this complaint, SI Mahender Singh had recommended for registration of this FIR for the offence u/s 407 IPC. The rukka prepared by SI Mahender Singh has been proved on the record as Ex.PW26/A. PW3 Dinesh Jain is the proprietor of M/s Doshi Plastic Industries and PW4 Jai Prakash Bhojak is the Manager of M/s Doshi Plastic Industries. It was deposed by them that they had imported 60 metric tonnes of plastic dana from LG Chemicals, Korea. In this regard, they have placed on record the bill of lading Ex.PW4/A, commercial invoice Ex.PW4/B and the bill of entry Ex.PW4/C. PW3 had identified his bags which were recovered during investigation of the case and which he had taken on superdari. The statement of PW2 Paramjeet Singh, PW3 Dinesh Jain and PW4 Jai Prakash Bhojak, therefore proved the fact that the truck no. HR37B5209 was loaded with plastic dana from ICD Tughlakabad and it was delievered at Mayapuri to M/s Doshi Plastic Industries Ltd. It is pertinent to note that this complaint by SC No. 2111/2016 18 of 32 Shri Paramjit Singh (PW2) Ex.PW2/A was made much prior to the recovery of the truck with the dead body. The statement of these three witnesses despite being subjected to crossexamination could not be shaken and there is no reason to have any doubt on the authenticity of their statement.
13. Since after the registration of the FIR no. 301/10 u/s 407 IPC, there was no clue about the truck and the driver. On 01.12.2010, ASI Rohtash Singh posted at PS Sadar, Sonepat, Haryana received the information regarding the truck parked at Sector 7, Sonepat. He went to the spot and checked the truck which was loaded with 33 bags of plastic dana and a dead body of a male was lying from the seat behind driver's seat. He informed the Duty Officer on which PW21 SI Dharam Pal reached the spot. The said truck i.e. HR37B 5209 was seized. The owner of the truck was informed, who identified the truck as well as the bags containing plastic dana. The dead body which was lying in the truck was taken to government hospital, Sonepat from where it was referred to PGI, Rohtak. PW20 ASI Rohtash Singh has deposed that he got the postmortem on the dead body done and thereafter it was handed over to the father of the deceased. He deposed that one box containing viscera of the deceased was given to him by the doctors which he handed over to the IO. PW 22 ASI Dharamvir Singh, who was posted at PS Sadar, Sonepat has SC No. 2111/2016 19 of 32 also corroborated the statement of PW20 ASI Rohtash Singh. He deposed that the dead body of deceased Suraj was identified by Paramjit Singh, owner of the truck and one Sunil. He called the FSL team at the spot and inquest proceedings u/s 174 Cr.P.C. was initiated by him. He deposed that Paramjit Singh had handed over to him a copy of FIR Ex.PW1/A. He further deposed about the postmortem of the dead body of deceased Suraj and the proceedings thereafter. He also deposed that on 02.12.2010, he sent the proceedings to the IO of the case namely Insp. Desh Raj. PW22 ASI Dharamvir Singh also remained with Insp. Desh Raj, the Investigating Officer of the case when he visited the cite i.e. the place where the truck was found parked on 01.12.2010 and at his instance, the IO had prepared the site plan. The postmortem report collected by PW22 ASI Dharamvir Singh established the cause of death as strangulation and smothering.
14. Now the vital issue before the court is that a truck laden with plastic dana driven by deceased Suraj started from ICD, Tughlakabad for its destination at Mayapuri, however, it did not reach the destination and the truck along with the dead body of deceased was found in district Sonepat, Haryana where it was lying abandoned, but who had committed the robbery and the murder of the driver Suraj?
15. The prosecution relied on the statement of the accused SC No. 2111/2016 20 of 32 persons to connect them with the offence of robbery and the murder of the driver Suraj. This inference is being drawn on the ground that they were found in possession of around 600 bags of plastic dana when they were apprehended by the Anti Robbery Cell of Crime Branch on 05.12.2010.
16. First of all, I shall deal with the evidence with regard to the apprehension of the accused with truck containing stolen plastic dana. PW12 Ct. Ashok Kumar, PW14 SI Sanjay Neolia and PW19 Ct. Nihal Singh are the witnesses of recovery of 250 bags of stolen plastic dana from the truck in which the accused Irfan Khan and Mehtab Ali were apprehended. The statement of these three witnesses is in consonance with each other which is to the effect that on 05.12.2010, PW12 Ct. Ashok Kumar received information about one Irfan stated to be involved in case of robbery and murder. Pursuant to this information that he would be coming in truck no. UP171705 to dispose of the robbed property, a raiding party was formed which was constituted by Insp. Richpal Singh. The raiding party of police officials of the Anti Robbery Cell, Crime Branch reached the traffic signal, Narela Industrial Area at about 2.50 pm. At 3.10 pm, the vehicle bearing no. UP171705 (TATA 407) came from the side of Karnal. It was apprehended. The vehicle was being driven by Irfan while Mehtab was sitting beside him. On checking the truck, SC No. 2111/2016 21 of 32 350 bags containing plastic dana with the marking of ABSL, G Chem made in Korea net weight 25 kg were recovered. Both occupants of the truck namely Irfan and Mehtab gave their disclosure statement Ex.PW12/A and Ex.PW12/B. Pursuant to this disclosure statement, the police party was led to LIG Colony, Narela Industrial Area where another truck bearing no. UP12D9779 was found parked in the service lane. The accused took out the key of this truck from under its tyre. This truck was found containing 250 gunny bags of the similar brand which were recovered from truck no. UP171705. The truck was seized and the gunny bags were also seized vide memo Ex.PW12/C and Ex.PW14/B respectively. PW14 SI Sanjay Neolia prepared a kalandra u/s 41.1(D) / 102 Cr.P.C. vide Ex.PW14/E. PW 14 had also placed on record the copy of DD No.10 Ex.PW14/C and DD No. 8 Ex.PW14/D. The statement of these three witnesses is found consistent and corroborate each other. The crossexamination of these witnesses by the defence counsel could not yield any material to doubt their statement.
17. Ld. Counsel for the accused Mehtab had argued that this entire story narrated by PW12 Ct. Ashok Kumar, PW14 SI Sanjay Neolia and PW19 Ct. Nihal Singh is a concoction because Mehtab was lifted on 03.12.2010 by some unknown person from his village at around 4.00 pm. In this regard, he placed reliance on the statement of SC No. 2111/2016 22 of 32 DW1 to DW4 to show that the accused was not apprehended on 05.12.2010. No doubt there is statement of DW1 and DW2, who deposed that accused Mehtab was lifted from his village on 03.12.2010. The documents i.e. copy of the telegrams placed on record as Ex.DW2/A and Ex.DW2/B1 to Ex.DW2/B3 and a letter Ex.DW2/C would show that the complaint / information regarding Mehtab being picked up on 03.12.2010 is correct as the documentary evidence placed on record cannot be doubted in this regard and obviously these documents are dated 04.12.2010 i.e. before the alleged date of apprehension i.e. 05.12.2010. However, this evidence led by the accused on record nowhere suggest that he was picked up by the officials of crime branch on 03.12.2010. The complaint is only to the effect that he was picked up by five persons in a Santro car bearing no. HR32G3669 and was taken towards Haryana. There is a long gap when he was allegedly picked up on 03.12.2010 and his apprehension by the officials of the crime branch on 05.12.2010 around 3.00 pm. One cannot draw the presumption that the accused Mehtab was picked up by the officials of the Crime Branch on 03.12.2010.
18. The statement of PW12 Ct. Ashok Kumar, PW14 SI Sanjay Neolia and PW19 Ct. Nihal Singh inspired confidence and does not suffer from any infirmities, inconsistencies and SC No. 2111/2016 23 of 32 embelishment reaching on the root of the prosecution version of the story. The defence taken by the accused Mehtab sounds fanciful and a very pertinent question would come to the mind as to why the official of crime branch will go to a village in Baghpat and pick up the accused Mehtab to implicate him in the case falsely. There is no allegation that these police officials have any enmity against accused Mehtab and he was even known to them prior to date of his apprehension.
19. The counsel for the accused Mehtab also argued that as per prosecution, the accused was apprehended in a truck bearing no. UP171705 but the accused Mehtab had no connection with the said truck. However, this argument loose the strength in view of the statement of PW11 Smt. Parvati, who has categorically deposed in the crossexamination that when the truck was seized by the police, it was given on rent to accused Mehtab and it was with the accused Mehtab for about 56 months before it was seized. PW11 has deposed that she was the owner of the truck. Of course, she has not produced any document to support that the truck was rented out to Mehtab but her oral statement cannot be doubted in the absence of any motive on her part to implicate the accused Mehtab in the present case.
20. It was submitted by Ld. Counsel for the accused persons SC No. 2111/2016 24 of 32 that the accused when allegedly apprehended by the police on 05.12.2010 around 3.00 pm, they did not join any public person to lend authenticity to the entire proceedings conducted at the spot. In this regard, suffice it would be to say that the statement of police official / official witnesses carry the same evidentiary value as any other person. One cannot approach their statement with doubt and suspicion simply because of their status. As observed above, there was no previous enmity nor the accused and these police officials were having any acquaintance meaning thereby there was no reason for these witnesses to depose falsely against the accused. Simply because the public witness was not engaged would not mean that statement of these official witnesses cannot be considered. Moreover, PW19 Ct. Nihal Singh has stated that public witnesses were not available as it was a winter season and it was a Sunday which explain the nonjoining of a public witness in the proceedings. But despite this explanation being offered, I have found no reason to disbelieve the statements of these witnesses.
21. Another ground taken by the counsel for the accused to discredit the statement of these witnesses is that Insp. Richpal Singh, who was supervising the team of the crime branch in the raid has not been cited as a witness nor he has been tendered as a witness, therefore an adverse inference should be drawn against him. Further, SC No. 2111/2016 25 of 32 in this regard one can say that the multiplicity of evidence of a particular fact is not the requirement of law. An adverse inference of nonexamination of a witness can be drawn only when there is no other evidence of a particular fact to be proved by said witness. In this case, the statement of PW12 Ct. Ashok Kumar, PW14 SI Sanjay Neolia and PW19 Ct. Nihal Singh established the case for the prosecution qua the recovery of stolen plastic dana from their possession. PW14 SI Sanjay Neolia has done the effective work and prepared documents of seizure, arrest and also prepared kalandra under section 102 Cr.P.C., so nonexamination of Insp. Richpal cannot taken as adverse to the prosecution.
22. PW14 SI Sanjay Neolia had recorded the disclosure statement of accused Irfan and Mehtab as Ex.PW12/A and Ex.PW12/B. Pursuant thereto another truck bearing no. UP12D 9779 was found parked near Narela Indutrial Area which was found with 250 bags of the plastic dana. Thus, the prosecution was able to establish that 350 bags of stolen plastic dana was recovered from the possession of the accused Irfan and Mehtab and further 250 bags of plastic dana were recovered at their instance from a truck which was parked in Narela Industrial Area.
23. Now the another important issue which arise in this case is whether on the basis of the recovery of stolen plastic dana from SC No. 2111/2016 26 of 32 possession of the accused, an inference can be drawn that they were the perpetrator of crime of robbery and murder?
24. The Ld. Additional Public Prosecutor had argued that the disclosure statement of the accused recorded by PW30 Insp. Desh Raj Ex.PW30/A and Ex.PW30/B described the manner in which the accused persons had robbed the truck driven by deceased Suraj and also the manner in which he was done to death. (The facts stated in the disclosure statement regarding the manner of commission of offence is already discussed).
25. So far as the disclosure statement of an accused is concerned, there is a bar u/s 24, 25 and 26 of the Indian Evidence Act and disclosure statement cannot be used against the accused. However, an exception has been provided in section 27 of the Act which, inter alia, provides that when a fact is discovered in consequence of information received from a person accused of an offence, in the custody of a police officer then so much of such information as relates distinctly to the fact thereby discovered, may be proved. The disclosure statements Ex.PW30/A and Ex.PW30/B of accused Irfan and Mehtab respectively would not fall within the exception of section 27 of the Indian Evidence Act. The factum of the death of the deceased, the factum of robbery of plastic dana, the factum of the place from where the truck no. HR37B5209 driven SC No. 2111/2016 27 of 32 by Suraj started and the place from where the truck was recovered lying abandoned were all in the knowledge of police officials before the disclosure statement of these accused were recorded. So there is no discovery of any fact pursuant to their disclosure statement. These disclosure statements to effect that they had killed Suraj cannot be read in evidence against the accused persons. The Additional Public Prosecutor has argued that when the accused have been found in possession of stolen articles, they can be presumed to be murderer as well. He relied upon section 114(a) of the Evidence Act, which deals with presumptions which a court can draw in certain circumstances. Section 114 of the Evidence Act provides that court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The illustration 'a' to the section provides that a man in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession
26. In case of Sanwat Khan and Kaloo Khan Vs. State of Rajasthan AIR 1956 SC 54, it was held that "no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused SC No. 2111/2016 28 of 32 person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof".
27. In case of Nagappa Dondiba Kalal Vs. State of Karnataka AIR 1980 SC 1753, some ornaments of deceased were recovered from accused after 34 days of murder and robbery. The court was of the view that inference should not be drawn that accused murdered the deceased and held that it was for the prosecution to prove its case affirmatively and it could not gain any strength from the conduct of the accused in remaining silent.
28. In case of Mohmed Inayatullah Vs. State of Maharashtra AIR 1976 SC 483, it was observed that an inference u/s 114 illustration (a) should never be reached unless it is a necessary inference from the circumstances of the given case, which cannot be explained on any other hypothesis save that of the guilt of the accused.
29. A presumption u/s 114 (a) of the Indian Evidence Act can be drawn if the recovery is made 'soon after' and there are certain other circumstances which further indicates the involvement of the person found in possession of stolen property in the graver offence.
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30. In the present case, the prosecution was relying on the disclosure statement of the accused persons which however cannot be used to implicate them in the offence of murder and robbery. However, the evidence led by the prosecution is found sufficient to led that the accused were in possession of stolen property when they were apprehended on 05.12.2010 by the Anti Robbery Cell of the Crime Branch, Delhi, for which they could not offer any explanation.
31. The disclosure statement of the accused describing the manner of commission of offence of robbery and subsequent murder of the driver Suraj is inadmissible in evidence. There is nothing on the record to suggest the presence of the accused Irfan at ICD Tughlakabad or any evidence that Irfan or his accomplice Prakash had boarded the truck which deceased Suraj was to drive to deliver the goods at Mayapuri. There is no evidence to indicate that the accused Irfan had taken alcohol with the deceased Suraj. The prosecution case that the accused Mehtab had procured Alprex tablets from a chemist from PW10 Sanjay and this Alprex tablet was mixed in the alcohol of the deceased Suraj by Irfan does not stand proved. The viscera report shows presence of only alcohol in the blood and no other substance. Statement of PW10 Sanjay, who runs a medical store at Baghpat has deposed that Mehtab Ali used to purchase Alprex tablets from his shop for his father. There is no evidence on SC No. 2111/2016 30 of 32 the record that Irfan had brought the truck of the deceased Suraj from ICD Tughlakabad containing plastic dana which was transported into three other trucks at village Niwada. Therefore, for want of any evidence connecting the accused Irfan and Mehtab with the commission of robbery and murder, they are being acquitted of the charges u/s 392 and 302 IPC read with section 34 IPC. Similarly, since the commission of the act of robbery and murder has not been proved against them, the offence of section 201 IPC read with section 34 IPC is also not proved against the accused persons and accordingly, they are acquitted of the said charges.
32. However, the fact remains that the truck bearing no. HR 37B5209 carrying plastic dana was to be delivered at Mayapuri by the driver Suraj. However, this plastic dana was robbed and the driver Suraj was killed by strangulation. The evidence on record in this regard prove both these facts regarding robbery and the murder. Although, the prosecution could not connect the accused with these offences.
33. However, the offence with regard to the recovery of the robbed articles from the possession of the accused persons and at their instance, from truck no. UP171705 and UP12D9779 stand proved which makes out a case for the offence u/s 411 read with section 34 IPC. Accordingly, both the accused are held guilty and SC No. 2111/2016 31 of 32 convicted for the offence punishable u/s 411 IPC read with section 34 IPC.
Announced in the open (AJAY KUMAR KUHAR)
court today i.e. 14.11.2017 Addl. Sessions Judge02
SouthEast, Saket Courts, New Delhi
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