Delhi District Court
State vs Accused on 6 March, 2012
IN THE COURT OF DR. T.R. NAVAL, ADDITIONAL
SESSIONS JUDGE-02, EAST DISTRICT, KARKARDOOMA
COURTS, SHAHDARA, DELHI
SC NO.27/08 Date of Institution :08.10.2008
FIR No.155/08 Date of Argument :24.02.2012
PS Gandhi Nagar Date of Order :06.03.2012
U/S 395/397/412/506/120B IPC & 25 Arms Act
State Versus Accused
1 Taslim
S/o Yamin
J-50, New Seelampur,
New Delhi
2 Man Singh @ Manu
S/o Chandrika Prasad,
R/o H.No. E-10/A-417,
New Seelampur, Delhi
3 Rahis
S/o Mohd. Ajij,
R/o J-373,
Seelampur, Delhi
4 Brijesh
S/o Amar Nath, VPO
Shahajanpur, Koshambi, U.P.
JUDGMENT
The facts in brief of the prosecution case are that on 30.06.2008 at about 06.15 p.m., an intimation was received at PS Gandhi Nagar, Delhi vide DD no. 18A that a dacoity has been committed in H. No. 6672, Janta Gali, Gandhi Nagar, Delhi. SI Puran Mal alongwith Ct. Chhagan were assigned the investigation. They arrived at above mentioned house and heard voices from a room which was bolted from outside. They opened the Kundi of the room and brought out three persons and made inquiries and statement SC No.27/08 State Vs. Taslim & Ors. Page 1/33 of complainant Rewat Mal Rathi was recorded. He alleged that he had been carrying on the business of preparation of shirts in his factory at that place and on that day at about 5.30 p.m when he was sitting in his house a boy came inside his room and asked about the Pappu. He asked that boy to come in the room after removing his shoes out of the room but at the same time three more boys arrived there through stair case and the boy who came first brought out revolver like object from his pant and pointed out the same on his forehead and asked him to hand over whatever he had. Those three boys also brought out their knives and by moving the knives in the air threatened him that in case he makes noise he will lose his live. He was scared and after opening the iron Almira with the help of key he handed over Rs. 40,000/- in cash, about 2,21,000/- in the shape of drafts. Those boys also checked two-three suitcases which were keeping in the room. Two of his mobile phones were there for charging. Those boys also picked up those mobiles and they also tied his hands with the help of a plastic rope. In the meantime, his servant Prakash came down from the upper floor of the house alongwith his friend Ganesh. Those boys were also pushed inside that room at the point of knives and also took his Nokia phone number 3110 of black colour and Rs. 200-250 from his pocket and they closed the room with the direction not to raise alarm. They continued to sit in that room and thereafter they informed the police with the mobile of Ganesh by dialing no. 100. The boy who was checking his SC No.27/08 State Vs. Taslim & Ors. Page 2/33 suitcase with the help of his knife left his knife there. The number of his mobile was 9899668067 Motorola black colour and other mobile number was 9350543937 reliance black colour and 9873673971 Nokia model 1001 black colour. Those boy were in the age group 25-30 years. One of them was 6 ft in height fair colour and remaining three boys were of Gehua colour and short height and he could identify those boys if shown to him. SI Puran Mal recorded his Rukka on the statement and sent Ct. Chhagan for registration of case. On the basis of which FIR no. 155/2008 at PS Gandhi Nagar was recorded. IO prepared sketch of the knife and took it into possession vide seizure memo. IO also prepared site plan of the place of occurrence.
2. On 03.07.2008 accused Taslim was arrested. His arrest memo and personal search memo were prepared. He was interrogated. His disclosure statement was recorded. He also pointed out the place of occurrence and pointing out memo was prepared. He also led the police party to the house of Kamruddin and got recovered a bank draft no. 468051-110006012 dated 15.06.2008 and a cheque of Rs. 1500/- payable to Rewat Mal drawn at State bank of Mysore, Gandhi Nagar branch which were seized vide seizure memo. Accused was produced in the court and an application for holding his TIP was filed before the Ld. MM. The accused Taslim refused to participate in TIP proceedings.
3. On 04.07.2008 accused Brijesh Kumar was arrested. His arrest memo and personal search memo were SC No.27/08 State Vs. Taslim & Ors. Page 3/33 prepared. He was interrogated and his disclosure statement was recorded. He led the police party to the house of one Babloo in Gali no. 8 and got recovered a cheque no. 118380 dated 02.07.2008 of Standard Chartered Bank for Rs. 950/- payable to Rewat Mal and Rs. 4000/- in the shape of 40 notes of 100 denomination which were seized by the police.
4. On 12.08.2008 accused Man Singh @ Manu was arrested. His arrest memo and personal search memo were prepared. He was interrogated and his disclosure statement was recorded. He also led the police party to his Jhuggi No. E-110-A/417, New Seelampur, Delhi and got recovered a cheque no. 118378 dated 25.06.2008 for Rs. 700/- drawn at Standard Chartered Bank and those were also taken into possession vide seizure memo. He also pointed out the place of occurrence and pointing out memo was prepared.
5. On 21.08.2008 accused Rahis was arrested. His arrest memo and personal search memo were prepared. He also led the police party to his Jhuggi J-373, New Seelampur, Delhi and got recovered a cheque no. 341680 dated 28.06.2008 for Rs. 550/- in favour of Rewat Mal drawn at State Bank of Hydrabad. These were also taken into possession vide seizure memo. He also pointed out the place of occurrence and pointing out memo was prepared. An application for TIP of accused Rahis was also filed but he also refused to join the TIP. The investigating officer after recording of statement of witnesses and completion of investigation, filed a charge sheet against accused Taslim, SC No.27/08 State Vs. Taslim & Ors. Page 4/33 Man Singh, @ Manu, Rahis and Brijesh before the Ld. Metropolitan Magistrate for their trial for the offences punishable U/s 392/397/398/412/506/120B IPC & 25/27/54/59 Arms Act. About accused Warsi @ Pappu it has been mentioned in the charge sheet that he could not be arrested and on his arrest a supplementary challan u/s 178 (8) of the Code of Criminal Procedure, hereinafter referred to as the Code will be filed.
6. On appearance Ld. M.M. supplied copies of charge sheet to the accused persons and committed this case to the court of sessions and the case was assigned to this court.
7. My Ld. Predecessor vide his order dated 03.02.2009 opined that there was a prima facie case against all the accused for the offence punishable u/s 120B/412/395/506(i) IPC and there was also a prima facie case against accused Taslim, Man Singh, Rahis for the offences punishable u/s 397 IPC and a case against accused Rahis for the offences punishable u/s 27 Arms Act. Accordingly, separate charges for the said offences were framed and read over to them in vernacular language. All the four accused pleaded not guilty and claimed trial.
8. The prosecution, in order to prove its case, examined Sh. Rewat Mal Rathi as PW1; Sh. Prakash as PW2; Sh. Ganesh as PW3; Sh. Piyush as PW4; Sh. Kailash as PW5; Sh. Jai Kishan as PW6; Sh. Manoj Kumar Kalani as PW7; Ct. S.C. Jahid Singh as PW8; H.C. Yashpal as PW9; Ct. Chhagan Singh as PW10, HC Bhopal Singh as PW11; HC Munesh Kumar SC No.27/08 State Vs. Taslim & Ors. Page 5/33 as PW12; Ct. Sunil Kumar as PW13; Ct, Ishaq Mohd at PW14; Inspector Ravinder Kumar as PW15; Ct. Naipal Singh yadav as PW16; Sh. Gopal Daga as PW17; Sh. Sunil Chaudhary Ld. ACMM as PW18 and SI Puran Mal as PW19.
9. After closing of prosecution evidence statements of all the four accused were recorded u/s 313 Cr. P.C. All the material and incriminating evidence on judicial record was put to them. Accused persons either denied or expressed their ignorance about the evidence of the prosecution. All the four accused pleaded that they did not know anything about the present case and they were falsely implicated in this case.
10. All the four accused opted not to adduce any evidence in support of their defence.
11. After closing of prosecution evidence, I have heard arguments of Ld. Addl. Public Prosecutor for the State and Ld. Counsel for all the accused persons and perused file.
12. It has been argued on behalf of defence counsel that prosecution has miserably failed to prove its case. All the material prosecution witnesses have turned hostile. The prosecution has failed to prove recovery of phone from the accused persons. The cheques allegedly recovered from the possession of accused persons do not connect them with alleged crime. Refusal of TIP by the accused persons will not provide any benefit to the prosecution as accused persons were shown to the witnesses. The investigating officer has failed to join public witnesses or complainant at the time of arrest and recovery of cheques, etc. Even the investigating SC No.27/08 State Vs. Taslim & Ors. Page 6/33 officer did not join the Seelampur police at the time of making investigation in the jurisdiction of PS Seelampur. PW-15 and PW-16 have failed to even the tell the denomination of the currency notes allegedly recovered from the accused persons.
13. On the other hand Ld. Additional P.P. for the State argued that prosecution has successfully proved its case against all the four accused persons. Adverse inference may be withdrawn against the accused persons for refusal to join TIP.
Findings
14. It would be appropriate to reproduce Sections 390, 391,392, 395, 397, 412, 120 of IPC and Section 25 Arms Act. These run as under:
"Section 390 - Robbery. -- In all robbery there is either theft or extortion.
When theft is robbery. -- Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint."
When extortion is robbery. -- Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
"Section 392 - Punishment for robbery. Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the SC No.27/08 State Vs. Taslim & Ors. Page 7/33 imprisonment may be extended to fourteenyears."
Section 391-Dacoity.- When five or more persons conjointly commit or attempt to commit a robbery,or where the whole number of persons conjointly committing or attempting to commit a robbery,and persons present and aiding such commission or attempt,amount five or more, every person so committing, attempting or aiding,is said to commit "dacoity". Section 395 - Punishment for dacoity.--Whoever commits dacoity shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Section 397 - Robbery or dacoity, with attempt to cause death or grievous hurt.--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, so attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
Section 412 - Dishonestly receiving property stolen in the commission of a dacoity.--Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Section 120B - Punishment of criminal conspiracy.--(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both. Arms Act-
25. Punishment for certain offences.- (1) Whoever-
(a) manufactures, sells, transfers, converts, repairs, SC No.27/08 State Vs. Taslim & Ors. Page 8/33 tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section5;
or*** shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and shall also be liable to fine."
Let us now scrutinize the evidence on record. Material evidence on record
15. PW-1 deposed that on 30.06.2008 at about 5.30 p.m., he was sitting in office of his factory at 6672, first floor, Janta Gali, Gandhi Nagar, Delhi. Four boys came. One of them asked him as to where was Pappu? He told them as to who was Pappu? Another boy took out a revolver and remaining three took out knives and asked him to give whatever he had. He was scared and gave Rs.40,000/- cash, his two mobiles no. 9899668067 and 9350543937 cheques and DD amounting to Rs. 2.25 lacs. They tied his hands and legs and they tied clothes on his mouth. In the meantime, his employee Prakash came to him from first floor and at the point of the revolver they committed robbery of mobile of Prakash. They also confined Prakash in a room and all the four robbers went out. Police was informed at 100 number. Police arrived at the spot. He gave his statement to the police which is Ex. PW1/A bearing his signatures at point-X. He further deposed that none of the accused persons present in the court were among those robbers who committed the said robbery from his persons at the point of Katta as well as knives. One open knife was recovered by the police from the side of wall of a room SC No.27/08 State Vs. Taslim & Ors. Page 9/33 and sketch Ex. PW1/B was prepared. The same was seized vide memo Ex. PW1/C which was signed by him at point-A. At the request of Ld. Addl. Public Prosecutor PW-1 was declared hostile. In cross-examination conducted by Ld. Addl. Public Prosecutor PW-1 denied the suggestion that either he was won over by accused Tasleem, Brijesh, Man Singh and Rahis or he compromised the matter with them or that he was not deposing the true facts. He admitted that list of DD and cheques robbed were mentioned by the police in Ex. PW1/D. He denied the suggestion that accused present in the court Tasleem, Man Singh, Rayees and Brijesh were the same who committed dacoity of Rs. 40,000/- and draft of Rs. 2,21,000/-, one mobile phone belonging to his servant Prakash at the instance of knife and Katta on 30.06.2008 at about 5.30 p.m. in house no. 6672, Janta Gali, Gandhi Nagar, Delhi.
16. PW-2 Prakash deposed that accused present in the court namely Tasleem, Man Singh, Tayees and Brijesh never committed dacoity from the house of his land lord Rewti Rathi Seth at H. No. 6672 at about 5.30 p.m at the instance of knives and revolver. PW-2 was also declared hostile at the request of Ld. Addl. Public Prosecutor. In cross-examination conducted by Ld. Addl. Public Prosecutor he deposed that he gave his statement to police regarding the incident. He denied the suggestion that on 30.06.2008 at about 5.30 p.m. at H.No.6672, first floor, Janta Gali, Gandhi Nagar, belonging to his land lord Rewti Mal Rathi all the accused present in the court committed dacoity of Rs.40,000/- and draft of Rs.
SC No.27/08 State Vs. Taslim & Ors. Page 10/332,21,000/-, two mobile phones and cheques belonging to Sh. Rewti Mal Rathi at the pointing out of knives and Kattas. He denied the suggestion that accused present in the court tied his hands and confined him in a room and also robbed his mobile and cash of Rs. 200/250 from his person. He further denied the suggestion that he was not identifying the accused persons intentionally because either he was won over by the accused or he compromised the matter with them.
17. PW-3 deposed that on 30.06.2008, he alongwith his friend Prakash was present at the roof of factory situated at 6672, Janta Gali, Gandhi Nagar, Delhi. At about 5.00 or 5.30 p.m. he got down from the roof at the first floor. He saw four persons in the room and they were having knives and country made pistol. Three persons were having knives and one was having country made pistol. They pushed him inside and they came out after closing the gate from outside and ran away from there. At that time name of his owner was Rewti Mal Rathi who was also present in the court and his hands and legs were tied with the clothes. They untied hands and legs of their owner. They further deposed that neither they knew anything more about the case nor they could identified the accused persons if shown to them. Accused were not present in the court. He was also declared hostile at the request of Ld. Addl. Public Prosecutor. In cross-examination conducted by Ld. Addl. Public Prosecutor he stated that police had recorded his statement and whatever he had deposed before the police was recorded. He further admitted the suggestion that one SC No.27/08 State Vs. Taslim & Ors. Page 11/33 boy who was standing outside the room and forced them to enter into the room at the point of weapon. He also admitted that those two or three boys had removed the mobile phone make Nokia 3110 of black colour alongwith Rs. 200/250 from the pocket of his friend Prakash. He admitted that one of the boys had left his knife inside the room near the suitcase. However, he denied the suggestion that all the accused persons present in the court were the same persons who had robbed the mobile phone as well as cash of Rs. 200/250 from the pocket of Prakash and pushed them inside the room with the help of weapon and tied the hands and legs of his Sethji/owner Rewti Mal with clothes. He further denied the suggestion that he was deposing falsely to save the accused persons as either he was won over by the accused or he compromised the matter with them or he was not identifying them in the court for that reason.
18. PW-4 deposed that on 30.06.2008 he had gone to Japani Park, Rohini alongwith his relatives and family members at about 5.30 p.m. he received telephone call from his father that a dacoity had been committed in their factory at Gandhi Nagar. Immediately, he came back to their factory and found that police officials were present at their factory. Police officials conducted the proceedings. He supplied photostat copies of mobile phone Motorola was which robbed by the accused persons from his father Rewat Mal Rathi and copy was marked and exhibited as Mark-A. He could not produce the original as it was not traceable.
SC No.27/08 State Vs. Taslim & Ors. Page 12/3319. PW-5 deposed that he had business relations with Rewti Mal Rathi and he had issued two cheques for amount of Rs. 500/600 of Axis Bank, Krishna Nagar Branch from his account against the purchase of clothes. He had issued cheque in the name of Rewat Mal, M/s Kailash Karnani. He received a phone call from Rewat Mal that both the cheques had been stolen from his factory. IO had recorded his statement.
20. PW-6 deposed that he had business relations with Rewti Mal Rathi and he had issued two cheques for amount of Rs. 400/500 of State Bank of Hydrabad, Krishna Nagar Branch from his account against the purchase of clothes. He had issued cheque in the name of Rewat Mal. Later on, he came to know that both the cheques had been robbed from his factory. IO had recorded his statement.
21. PW-7 deposed that he had business relations with Rewati Mal Rathi and he had issued one cheque for Rs. 1500/- of State Bank of Mysore, Gandhi Nagar branch from his account against the purchase of clothes. He had issued cheque in the name of Rewat Mal. Later on, he came to know that the cheque had been robbed from his factory. IO had recorded his statement. The cheque was proved as Ex. PW7/A bearing his signature at point-A. In cross-examination he deposed that he did not receive any bill from Rewat Mal against the purchase of cloth. He denied the suggestion that cheque Ex. PW7/A was manipulated and planted.
22. PW-9 deposed that on 04.07.2008 he was posted SC No.27/08 State Vs. Taslim & Ors. Page 13/33 as HC at PS Gandhi Nagar. On that day, he joined the investigation of this case. Inspector Ravinder Kumar, Ct. Sunil and Ct. Ishakh and he went to Ajit Nagar, Gali no. 8 in search of accused Brijesh @ Pundit involved in this case. In the meantime, a secret informer came there and informed to inspector that Brijesh, accused was living in house of Babloo. When inspector was talking with secret informer, he immediately pointed out towards a person coming out from the gali and told that he was said Brijesh @ Pundit. Immediately, they apprehended him. Inspector made inquiries from accused Brijesh. He made disclosure statement Ex. PW9/A which was signed by him at point-X. Accused was arrested and his arrest memo Ex.PW9/B and personal search memo Ex. PW9/C were prepared which were signed by him at point-X. Accused Brijesh disclosed that out of robbed amount Rs. 5000/- came in his share and out of that amount he had already spent Rs. 1000/- and Rs. 4000/- and one cheque were laying in his bag in his room. Accused Brijesh took them to his room in the house of Babloo and got recovered Rs. 4000/- and one cheque. The money as well as cheque were taken into possession after sealing the same vide memo Ex. PW9/D. The accused was also medically examined in the hospital. Prior to 03.07.2008 he joined the investigation with the IO and when they reached in Jhugi in Seelmpur in search of accused person, IO had shown the photos of suspected persons to the public and one person from the Jhuggi identified of seeing the photo of a man who was living at some distance and his name SC No.27/08 State Vs. Taslim & Ors. Page 14/33 was Tasleem. At his pointing out Tasleem was apprehended. He was interrogated. Tasleem made a disclosure statement Ex. PW9/D bearing his signatures at point-X. He got recovered one cheque Ex. PW7/A and Rs.1500/-. These were taken into possession vide memo Ex. PW9/E. At the pointing out of accused, pointing out memo Ex.PW9/F was prepared. Accused Tasleem was arrested and his arrest memo Ex.PW9/G and personal search memo Ex.PW9/H were prepared which were signed by him at point-X. He had identified the cash of Rs. 4000/- in the denomination of Rs. 100 notes as Ex. P-X1 and cheque was identified as Ex.PX. PW-13, Ct. Sunil Kumar and PW-14, Ct. Ishaq Mohd. and PW-15, Inspector Ravinder Kumar also deposed on the same lines.
23. PW-10 deposed that on 30.06.2008 he was posted at PS Gandhi Nagar. On that day he received an information and he went with SI Pooran Mal at first floor of H.No. 6672, Janta Gali, Gandhi Nagar, Delhi. One room was closed from outside and voice "Bachao-Bachao" was coming from inside. The Kundi of room was opened by SI Pooran Mal. They saw three persons inside the room namely Rewat Mal Rathi, the owner of factory, two servants Ganesh and Prakash. SI Pooran Mal recorded statement of Rewat Mal Rathi and made his endorsement and he took him to PS and got the case registered. Thereafter, he came back to the spot along with FIR and Rukka and handed over the same to SI Pooran Mal. Crime team also arrived on calling by SI Pooran Mal. One knife was lying in the said room. The same was lifted by SI SC No.27/08 State Vs. Taslim & Ors. Page 15/33 Pooran Mal. They prepared sketch of knife Ex. PW1/B and it was kept into a pulanda and after sealing with the seal of PM it was taken into possession vide memo Ex. PW1/C which was signed by him at point-B.
24. PW-11 deposed that on 11.08.2008 he was posted at PS Gandhi Nagar. On that day he joined the investigation of the case alongwith Ct. Nepal Singh and inspector Ravinder Kumar. Inspector Ravinder received a secret information about accused persons involved in the present case that they were near Shiv Mandir, Seelampur. At the pointing out of informer accuse Man Singh, who was standing near Shiv Mandir was apprehended. On inquiry he admitted his guilt. He was arrested. From his pocket cheques and cash were recovered. These were put in a pulanda and after sealing with the seal of RKR these were seized vide memo Ex. PW11/A. Disclosure statement Ex. PW11/E of accused Man Singh was recorded. The arrest memo Ex.PW11/C and personal search memo Ex.PW11/D were prepared. On 21.08.2008 he again joined the investigation with them and accused Rahis present in the court was apprehended on the basis of secret information and from his possession one cheque book of State Bank of Hydrabad dated 28.06.2008 of Rs. 550/- and cash of Rs. 800/- were recovered from him. Cheque and cash were seized vide memo Ex.PW11/F. Accused Rahis was interrogated vide memo Ex. PW11/G and he had disclosed that the amount and cheque were of his share. His arrest memo Ex. PW11/H and personal memo Ex. PW11/J were prepared. He also SC No.27/08 State Vs. Taslim & Ors. Page 16/33 pointed out the place of incident and pointing out memo Ex. PW/K was prepared and he signed all these documents at Point-X. He identified accused Man Singh and accused Rahis, cheque and cash recovered from accused Man Singh as Ex.P-2 collectively and cheque in cash recovered from accused Rahis as Ex. P-3 collectively in the court. PW-16 also deposed on the line of PW-11.
25. PW-12 deposed that he was posted as MHC(M) PS Gandhi Nagar. He proved entries in the register no.19 at serial no. 1972 dated 30.06.2008 as Ex. PW12/A: dated 03.07.2008 at serial no. 1975 as Ex. PW12/B: at serial no. 1976 dated 04.07.2008 as Ex. PW12/C; dated 11.08.2008 at serial no. 2010 as Ex. PW12/D; and dated 21.08.2008 at serial no. 2015 as Ex. PW12/E.
26. PW-15 also deposed that he received investigation of this case and he called eye witness, Sh. Rewat Mal Rathi on 01.07.2008 at PS and he was taken to crime record office, Delhi where computer sketches of the suspect were prepared by the computer operator on the identification of eye witness. An application for conduct of TIP of accused Rahis was filed but accused Rahis refused to participate in TIP. Accused Tasleem and Man Singh also refused judicial TIP in Tihar Jail. Accused Warsi @ Pappu could not be traced. During the investigation he also informed the concerned bank about the stolen DDs and cheques. He also identified cheque as Ex.PX, cash of Rs. 4000/- as Ex.P-1, cash and cheque recovered from accused Man Singh as Ex.PX2 and cheque and cash recovered SC No.27/08 State Vs. Taslim & Ors. Page 17/33 from accused Rahis as Ex.P-3.
27. PW-17 deposed that in the year 2008 he was running his business with the name and style Shri Jee Fabrics at Gandhi Nagar, Delhi. He used to purchase cloth for his business from Sh. Rewat Mal, proprietor of Priyanka Fashion at Gandhi Nagar, Delhi. He had issued three cheque dated 25.06.2008, 01.07.2008 and 02.07.2008 of standard chartered bank for payment of clothes in favour of Rewat Mal for Rs. 700/-, 800/- & 950/-, respectively. He had identified one of his cheques as Ex.PX.
28. PW-18 deposed that accused Man Singh and accused Rahis refused to join the TIP proceedings on 22.08.2008 and he proved application for TIP as Ex. PW18/A, proceedings as Ex. PW1/B, TIP proceedings as Ex.PW18/C, statement of accused Man Singh as Ex.PW18/D, application for holding TIP of accused Rahis as Ex.PW18/E and statement of refusal of accused Rahis as Ex.PW18/F.
29. PW-19 deposed on the lines of PW-10 and also stated that on 30.06.2008 he was posted at PS Gandhi Nagar as SI. He recorded statement of Rewati Mal Rathi and prepared rukka Ex. PW19/A and sent the Tehrir through Ct. Chhagan for registration of FIR. He called the crime team at the spot. Crime Team inspected the site and lifted the finger prints. Dog squared was also arrived with crime team. He prepared site plan Ex. PW19/B which was sent by him at point-X. He recorded statements of witnesses and deposited the case property in Malkhana. He identified the knife as Ex.
SC No.27/08 State Vs. Taslim & Ors. Page 18/33P-3.
30. Let us now scrutinize and evaluate the prosecution evidence in the lights of arguments referred to here in above in order to see whether prosecution has proved its case against all the accused persons beyond any reasonable suspicion and doubt.
31. On analyzing the evidence on record, I come to the conclusion that the prosecution has failed to prove its case against all or any of the accused beyond any suspicion and reasonable doubt. The reasons which support my decision are firstly, that none of the prosecution material witnesses supported the prosecution case. Complainant/victim Sh. Rewat Mal Rathi PW1, another victim Sh. Prakash PW2, and eye witness Sh. Ganesh PW3, became hostile and they did not identify any of the accused in the court. Thus, the prosecution has failed to connect all or any of the accused person to the alleged crime.
32. Secondly, it is one of the basic ingredient of offence of dacoity defined u/s 391 IPC that the number of offenders must be five or more. In the present case, all the material witnesses told the number of offenders as only four. Offence dacoity is punishable u/s 395 IPC. Thus prosecution has failed to prove that accused persons committed dacoity punishable u/s 395 IPC. It is one of the ingredient of Section 412 IPC that the accused received the possession of any stolen property which had been transferred by the SC No.27/08 State Vs. Taslim & Ors. Page 19/33 commission of dacoity or dishonestly received from a person whom he knew or reason to believe to belong or to have belonged to a gang of dacoits. In the present case there is no such evidence proving the ingredients of Section 412 IPC. Therefore, it is held that prosecution has also failed to prove that all or any of the accused committed offence of dishonestly receiving property stolen in the commission of a dacoity punishable u/s 412 IPC.
33. Thirdly, prosecution has failed to establish that money allegedly recovered from accused persons was part of robbed amount. There was no mark of identification on the currency notes. None of the victim i.e. either PW1 or PW2 identified the case property. They were the best witnesses for identifying the case property but as neither of them corroborated the prosecution case on case property, so it is held that prosecution has failed to establish that money allegedly recovered from the accused persons was a part of the case property i.e., robbed amount.
34. Fourthly, as none of the eye witness identified the accused persons in the court, therefore, refusal of accused Man Singh and accused Rahis to join the TIP proceedings will be of no consequence and these will not provide any benefit to the prosecution.
35. My findings in this regard finds support from a case Nibaran Borah v. State of Assam, (Gauhati), 2007(5) R.C.R. (Criminal) 359 : 2006 Cri.L.J. 4222, wherein Gauhati High SC No.27/08 State Vs. Taslim & Ors. Page 20/33 Court Observed:
"13. In Kanta Prashad v. Delhi Administration (AIR 1958 SC 350) : (1958 Cri LJ 698) the Apex Court has made it clear that failure to hold a TIP does not make the evidence of identification, at the trial, inadmissible. However, the weight to be attached to such identification would be for the Court of fact to decide and that it is prudent to hold TIP with respect to witnesses, who did not know the accused before the occurrence. The relevant observations made in Kanta Prashad (supra) run as follow (para 5) :
"It would no doubt have been prudent to hold a test identification parade with respect to witnesses who did not know the accused before the occurrence, but failure to hold such a parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification would be a matter for the Courts of fact and it is not for this Court to re- assess the evidence unless exceptional grounds were established necessitating such a course."
36. In case of Izzazul v. State, (Delhi), 2007(4) RCR (Criminal) 315, Delhi High Court observed:
"One of the major circumstances, which supported the case of prosecution is the refusal of the accused persons to participate in TIP. It has come in evidence that the accused persons were produced before the Magistrate in muffled face and they were warned by the MM about the consequences of refusal of TIP but still they refused to participate in the TIP on the ground that they had been shown to the witness."
37. Fifthly, the prosecution has failed to recover the material weapon of offence i.e. pistol (katta) and the other knives from the possession of accused persons. There is no convincing explanation for non recovery of these weapons/arms allegedly used in commission of alleged crime.
SC No.27/08 State Vs. Taslim & Ors. Page 21/33This also creates doubt about the genuineness of the prosecution case.
38. Sixthly, recovery of blank cheque ExPW7/A, and PX are not sufficient to connect the accused Tasleem and accused Brijesh Kumar with the alleged crime as recovery of these cheques have not been proved beyond suspicion and reasonable doubt. Besides, it is not convincing as to why the accused persons, i.e. robbers will keep cheques in their possession as encashment of those cheques may connect them to the crime. In addition to, the list of bank drafts/cheques Ex.PW1/D given to police, will not provide any benefit to the prosecution as this list has not been corroborated by other documents. PW7 regarding cheque Ex.PW7/A stated that he did not receive any bill from Sh. Rewat Mal against the purchase of clothes vide cheque Ex.PW7/A. In the absence of any corroboration, the evidence of prosecution in this regard is not convincing.
39. Seventhly, the pointing out memo Ex.PW9/P, Ex.PW11B, Ex.PW11/K, of accused Tasleem, Man Singh @ Monu and Rahis, respectively, will not provide any benefit to the prosecution as the place of occurrence was already in the knowledge of police at the time of preparation of pointing out memo.
40. Eighthly, there are material contradictions in the testimonies of prosecution witnesses and it would be hazardous to act upon and convict the accused persons on SC No.27/08 State Vs. Taslim & Ors. Page 22/33 the basis of inconsistent and contradictory testimonies of prosecution witnesses. Some of the instances of contradictions are as under:
Case Property
41. On perusal of statement Ex.PW1/A, I find that regarding the valuables robbed by the accused persons, Sh. Rewat Mal Rathi stated that he handed over Rs.40,000/- in cash and about Rs.2,21,000/- in the shape of drafts. As PW1 he stated that he gave Rs.40,000/- in cash, cheques and demand drafts amounting to Rs.2.25 lacs. Thus he included cheques as the case property/robbed valuables and instead of Rs.2.21 lacs he enhanced the amount as Rs.2.25 lacs. Mode of Confinement
42. The complainant in his statement Ex.PW1/A stated that the robbers were about to leave after tying his hands with plastic rope of pink colour and his feet with the help of a pant then his servant Prakash came down. The robbers also pushed him and his friend Ganesh in a room and confined them in that room. As PW1 he stated that he they tied his hands and legs and they also tied his mouth with a cloth. In the meantime his employee Prakash came on the first floor and at the point of revolver they also confined Prakash in a room. Thus, there is embellishment regarding tying of his legs and mouth and omission regarding presence of friend of Prakash i.e. Ganesh.
SC No.27/08 State Vs. Taslim & Ors. Page 23/33Arrest of Accused Tasleem:
43. PW9 deposed in cross examination that accused Tasleem was arrested at about 4 p.m. at the instance of secret informer. PW13 deposed that arrest papers of accused Tasleem were prepared by IO at spot i.e. in gali at about 11 or 12 p.m. PW14 deposed that IO had arrested accused Tasleem at about 2/2:30 p.m. IO PW15 deposed that accused Tasleem was arrested at about 11 a.m. Thus all the material witnesses regarding arrest, making of disclosure statement by them and recovery of robbed article deposed differently. Secret Informer
44. PW9 deposed that secret informer regarding arrest of accused Tasleem met them in welcome colony. PW13 deposed that secret informer met them at J Block, New Seelampur Area. PW14 deposed that he was unable to tell the place where the secret informer met them but he met them on road in New Seelampur.
45. Ld. Additional Public Prosecutor argued that there are only minor contradictions and these may be ignored. He relied on cases reported as Ramesh v. State of Himachal Pradesh, 2004(4) Crimes 60, wherein the the HP High Court observed:
"15. There are minor contradictions in the statements of the prosecution witnesses but because of errors in individual perceptions and observations such contradictions are bound to occur. Secondly with the passage of time lapse of memory can also lead to minor contradictions and discrepancies in the statements of the witnesses. Human tendency to back up SC No.27/08 State Vs. Taslim & Ors. Page 24/33 good cases by exaggerated version can be yet another reason for contradictions and discrepancies in the evidence of the witnesses. Therefore, while appreciating the evidence the Courts are not to attach undue importance to minor contradictions and discrepancies in the version given by the witnesses and not to disbelieve such statements as a whole because of such minor discrepancies/contradictions unless they go to the root of the case. The Court may ignore exaggerated part of the testimony and may act upon the part which may be otherwise reliable and trustworthy."
46. He further relied on a case of Leela Ram (Dead) through Duli Chand v. State of Haryana, (SC) 1999(4) R.C.R. (Criminal) 588 the Apex Court Observed:
9. Be it noted that the High Court is within its jurisdiction being the first appellate court to re-appraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in the State of U.P. v. M.K. Anthony, 1985(1) RCR(Crl.) 88 : AIR 1985 SC 48. In paragraph 10 of the report, its Court observed :
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the SC No.27/08 State Vs. Taslim & Ors. Page 25/33 deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper- technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trival details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."
47. He further relied on a case of Appabhai and another v. State of Gujarat, AIR 1988 SC 696, the Apex Court observed:
"The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments SC No.27/08 State Vs. Taslim & Ors. Page 26/33 to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
48. My attention goes to a case Babu Lal and Others v. State, 1994 JCC 111 wherein, the Delhi High Court observed that:
"10. As far as these appellants, namely Babu Lal, Arjun Das and Leela Ram are concerned, there are material contradictions in the statements of the two injured, Om Parkash and Bhagwan Das who are the real brothers. The other alleged eye witnesses have also contradicted themselves on the most material points and the contradictions cannot be said to be minor and have occurred on account of passage of time. Moti Lal, PW13 on whose statement the case was registered has also not supported the case of prosecution in as much as he has denied that he has seen the incident or he saw these appellants giving injuries to the injured.*** There are serious lapses in the prosecution story in connecting these appellants with the offence. The story put up by the prosecution as far as these appellants are concerned, is unbelievable and doubtful. The weapon of offence, Rampi, was not sent to the doctor for examination, as such the doctor has not stated that these injuries could have been caused by the Rampi."
49. It has to be seen if the contradictions and the points discussed here in above have created any doubt about the genuineness of the occurrence under adjudication. After carefully scrutinizing the evidence available on record, and in view of the principles of law laid down in Babu Lal and Others v. State, (supra), I am of the view that the contradictions and points raised by Ld. Defence Counsel amounts to major SC No.27/08 State Vs. Taslim & Ors. Page 27/33 discrepancies in the testimonies of the prosecution witnesses and these has created dent in the prosecution case. Therefore, the principles of law laid down in Leela Ram (Dead) through Duli Chand v. State of Haryana, (supra), and Appabhai and another v. State of Gujarat, (supra), will not provide any benefit to the prosecution.
50. My decision further finds support by a case State of Madhya Pradesh v. Har Narayan, 1983 Crimes 916, wherein the important point which was emerged was that inconsistent evidence even though there is ring of truth therein, justifies the acquittal of the accused.
51. Ninethly, my attention goes to a case Mohd. Jasimuddin Ahmed v. State of Assam, 1982 Cri.L.J. 1510 wherein it was held by Gauhati High Court that:
"It is the settled rule of circumstantial evidence that where circumstances are susceptible of two equally possible inferences, the court should accept that inference which favours the accused rather than an inference which goes in favour of the prosecution. The rule of appreciation of circumstantial evidence is that the circumstances must be of a conclusive nature and tendency so as to be totally inconsistent with his innocence and are not explainable on any other hypothesis except the guilt of the accused."
52. My attention also goes to a case reported as Debiprasad Padhi and another v. State, 1982 Cri.L.J. 2214, wherein Orissa High Court held that:
"It has been settled principle of law relating to the appreciation of circumstantial evidence that the circumstances from which the conclusion of guilt is to be SC No.27/08 State Vs. Taslim & Ors. Page 28/33 drawn should, in the first instance, be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of conclusive nature and tendency and should be such as to exclude every hypothesis but the one proposed to be proved. There must be a chain of evidence as far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such that within all human probability, the act must have been done by the accused and no one else. Circumstantial evidence must be such that it cannot be explained on any other reasonable hypothesis except the guilt of the accused and it must be incompatible with his innocence."
53. My attention also goes to a case reported as Sanatan Naskar Vs. State of West Bengal, (2010) 8 SCC 249, wherein it was held by the Apex court that:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(l) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade vs. State of Maharashtra where the observations were made: [SCC p.807, para 19: SCC (Cri) p.1047] '19..... Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions.' (emphasis in original) (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, SC No.27/08 State Vs. Taslim & Ors. Page 29/33 (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
54. After scrutinizing and analyzing the prosecution evidence on record, I came to the conclusion that neither the oral testimony in the form of PW1, PW2 and PW3 who are victims of robbery and eye witnesses proved the prosecution case nor the circumstantial evidence in the form of alleged recovery of cheque Ex.PW7/A and Ex.PX consequent upon the alleged disclosure statement could prove the prosecution case as chain of events regarding recovery of alleged cheques have not been proved by the prosecution beyond any suspicion or reasonable doubt.
55. Tenthly, principles of law laid down in a case Satbir Vs. State of Uttar Pradesh, 1982 SCC (Cri.) 132, wherein it was held that when the prosecution has failed to bring the charge home to the appellant beyond reasonable doubt, he is entitled for acquittal, support the accused persons.
56. Eleventhly, principles of law laid down in a case reported as Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, wherein it was inter alia held by Apex court that It is well settled that where on the SC No.27/08 State Vs. Taslim & Ors. Page 30/33 evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt, further provide benefit to accused persons.
57. Twelthly, the principles of law laid down in cases State of Madhya Pradesh v. Har Narayan, (supra), Mohd. Jasimuddin Ahmed v. State of Assam, (supra), Debiprasad Padhi and another v. State, (supra), Sanatan Naskar v. State of West Bengal, (supra), Birdhichand Sarda v. State of Maharashtra, (supra), Nibaran Borah v. State of Assam, (Gauhati), (supra), and Izzazul v. State, (Delhi), (supra), provide benefit to accused persons.
58. Thirteenthly, I am convinced with the arguments of Ld. defence counsel that investigating officer has failed to join any public witness either at the time of arrest of accused persons or at the time of conducting their personal search or at the time of recovery of alleged robbed amount and cheques Ex.PW7/A and Ex.PX from their possession. I am not convinced with the arguments of Additional Public Prosecutor that Investigating Officer made efforts to join the public witnesses and due to the reluctance of the witnesses, they could not be joined. I am of the view that non joining of public witnesses by the IO, in the circumstances where the testimonies of police witnesses have been found inconsistent and contradictory on material particulars and where the eye witnesses have turned hostile, is fatal to the prosecution case.
59. Fourteenthly, most of the police witnesses in cross SC No.27/08 State Vs. Taslim & Ors. Page 31/33 examination admitted that investigating officer did not join even the local police at the time of alleged arrest and recovery of alleged cheques and part of the robbed amount. Admittedly, the accused persons were arrested from the local jurisdiction of other police station and places of alleged recovery is also situated in different police stations. This has further created the doubt about the truthfulness of the prosecution case.
60. Fifteenthly, none of the eye witness stated that all or any of the accused Tasleem, Man Singh, Rahis and Brijesh used the pistol/katta or knives. Admittedly, no arm or weapon of offence or any other arm or ammunition were recovered from their possession. Therefore, it is held that prosecution has further failed to prove its case for the offence punishable u/s 27 of the Arms Act.
61. Lastly, relying on the principle that let hundred criminals may go unpunished but one innocent should not be punished, it would be just fair and appropriate if all the accused are given benefit of doubt as the prosecution has failed to connect all the chains of events/circumstance which could connect them to the alleged crime.
62. In view of the above reasons and discussion, it is held that prosecution has failed to prove its case against all or any of the accused persons beyond suspicion and reasonable doubt that either all or any of them committed offences of criminal conspiracy, dishonestly receiving property stolen in the commission of a dacoity, dacoity, robbery or dacoity with SC No.27/08 State Vs. Taslim & Ors. Page 32/33 attempt to cause death or grievous hurt or criminal intimidation punishable u/s 120B/395/397412 IPC or an offence of illegally possessing arms without any permit or license punishable u/s 27 Arms Act or any lighter offence connected to these offences.
ORDER
63. Consequent upon the above reasons, discussion and conclusions, it is held that prosecution has failed to prove its case against all the accused persons beyond any suspicion of reasonable doubt, therefore all accused persons namely Taslim, Man Singh @ Manu, Rahis and Brijesh are acquitted for the offences punishable under section u/s 120B/395/397412 IPC and 27 Arms Act by giving them benefit of doubt.
64. However, all the accused are directed to furnish their personal bond for a sum of Rs.25,000/- with one surety of like amount as per provisions of Section 437 A of Cr.P.C. for a period of six months for ensuring their presence before the Appellate Court.
Announced in the open court on 06.03.2012 (DR. T.R. NAVAL) Additional Sessions Judge-02 East District:KKD Courts:Delhi SC No.27/08 State Vs. Taslim & Ors. Page 33/33