Delhi District Court
State vs Mukesh Kumar on 18 November, 2023
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
SC No. 27784/2016 CNR No. DLCT01-001305-2014
FIR No. 266/2013
U/Sec. 395/397/412/120B IPC &
Section 25/54/59 of Arms Act
P.S. Prashad Nagar
STATE VERSUS MUKESH KUMAR & ORS.
(i) SC No. of the case : 27784/2016
(ii) Date of commission of offence : 07.11.2013
(iii) Name, parentage and address : 1) Mukesh Kumar
of accused S/o Sh. Ishwar Dutt
R/o H.No. C-8/179-180,
Sultan Puri, Delhi
2) Rohit Kumar
S/o Sh. Ashok Kumar
R/o H.No. D-642
Mangol Puri, Delhi
3) Santosh Kumar
S/o Sh. Babu Lal
R/o H.No. D-569, Prem
Nagar-III, Hind Vihar
Nangloi, Delhi
4) Sanjay @ Ajay
S/o Late Sh. Man Singh
R/o H.No. B-1/20, Aman
Vihar, Nangloi, Delhi
5) Rahul
S/o Sh. Sanjay
R/o H.No. B-1/20
Aman Vihar
Nangloi, Delhi
SC No. 27784/2016
FIR No. 266/2013
State Vs. Mukesh & Ors. Page 1 of 44
6) Parminder @ Ravinder
@ Ravi
S/o Sh. Nirmal Singh
R/o H.No. A-354
Shakar Pur, Delhi
(iv) Offence complained of : 395/397/412/120B IPC &
25/54/59 of Arms Act
(v) Plea of the accused : Accused no. 1, 2, 3, 4
Pleaded not guilty and
Accused no. 6 Pleaded
guilty.
(vi) Final order : Accused no. 1, 2, 3 and 4
are acquitted for the
offence u/Sec.395/397/
412/120B IPC and
Section 25/54/59 of Arms
Act.
(vii) Date of such order : 18.11.2023
Date of Institution : 20.03.2014
Date of Judgment reserved on : 31.10.2023
Date of Judgment : 18.11.2023
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. The present case was registered on the complaint of PW-1 which is Ex.PW1/A dated 07.11.2013 regarding commission of robbery for a sum of Rs.14,25,000/- around 12.00 noon by the accused persons namely Sh.
Mukesh Kumar, Sh. Rohit Kumar, Sh. Santosh Kumar, Sh. Sanjay @ Ajay, Sh. Rahul and Sh. Ravinder Singh @ Ravi at open road 3A, Block WEA, SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 2 of 44 Sat Nagar, Karol Bagh, Delhi within the jurisdiction of PS Prasad Nagar. Accused Mukesh, Rohit, Santosh, Sanjay and Accused Ravinder @ Ravi are charged under Section 395 IPC read with Section 120 IPC.
2. The robbery was committed at gun point and the amount was robbed from Sh. Prembir Singh the complainant, Sh. Jai Kumar the cashier, Sh. Jaipal the Gunman and Sh. Purshottam the driver all of whom were employees of Cash Management Service Company, Jhandewalan, Delhi. Country-made pistol (desi katta) was used. Accused Mukesh and accused Sanjay @ Ajay are also charged under Section 397 IPC for having used deadly weapon which is country-made pistol against the employees of Cash Management Service Company. Accused Mukesh is further charged under Section 412 IPC for having found with Rs.60,000/- on 10.11.2013 at bus stand route No.901, Y Block, Mangolpuri, Delhi which was the money robbed on 07.11.2013 from the employees of Cash Management Services Company. Accused Rohit Kumar is further charged under Section 412 IPC for having found with Rs.40,000/- on 10.11.2013 at bus stand route No.901, Y Block, Mangolpuri, Delhi which was the money robbed on 07.11.2013 from the employees of Cash Management Services Company. Accused Santosh Kumar is further charged under Section 412 IPC for having found with Rs.90,000/- on 10.11.2013 at bus stand route No.901, Y Block, Mangolpuri, Delhi which was the money robbed on 07.11.2013 from the employees of Cash Management Services Company. Accused Sanjay @ Ajay is further charged under Section 412 IPC for having found with Rs.30,000/- on 26.11.2013 near his House No. B-1/20, Aman Vihar, Nangloi, Delh which was the money robbed on 07.11.2013 from the employees of Cash Management Services Company. The accused SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 3 of 44 Sanjay @ Ajay was further charged under Section 25 of Arms Act 1959 having found in possession of one country-made pistol with 02 live cartridge on 26.11.2023 at bushes in a vacant plot near his house No.B- 1/20, Aman Vihar, Nangloi, Delhi. Accused Ravinder @ Parminder @ Ravi was further charged under Section 174A of IPC for non-appearance on 15.07.2014 before Learned Area MM despite service on accused Ravinder @ Parminder @ Ravi of proclamation under Section 82 Cr. P.C. on 13.06.2014.
3. The complainant PW-1 has given his complaint Ex. PW1/A on which rukka Ex.PW25/A was handed over to Ct. Nitin who after getting the registration of FIR No. 266/2013 Ex.PW5/D had returned to the spot and gave copy of FIR and original rukka to the IO. DD No. 33B, was marked to PW-25 who had investigated the case. The accused were apprehended and committed to trial. The accused Rahul was discharged vide order dated 09.07.2014 who was arrested on the basis of disclosure statement of co-accused and no incriminating evidence was available against him on record. Accused Ravinder Singh @ Parminder @ Ravi has voluntarily pleaded guilty u/Sec. 174A (1) of IPC for violation of Court orders and proclamation was issued against him on which he was sentenced to imprisonment for period of 04 months and 18 days which was the period already undergone by the convict. However accused Parminder @ Ravinder @ Ravi was discharged on account of other remaining offences charged against him as he was arrested on disclosure statement of co-accused and there was no other evidence against him. The disclosure statement of co-accused is in-admissible in evidence and sufficient evidence was not found against accused Ravinder @ Ravi.
SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 4 of 44Hence two of the accused are already discharged in the present matter of the primary offence i.e the offence mentioned in FIR Ex.PW5/B.
4. Now the case is pending against accused Mukesh, Rohit, Santosh and Sanjay all of whom are charged u/Sec. 395 IPC. The accused Sanjay @ Ajay is separately charged u/Sec. 25 of Arms Act. PW-1 had deposed that one car overtook their cash van. In the meantime two person wearing helmet came towards the side of PW-1 who had went on duty to collect the cash in van bearing registration no. DL 1YC 3871. The cash amount of Rs.1,25,000/- was collected from head office of Delhi Jal Board namely Varunalaya situated at Jhandewalan. The said cash was collected by Sh. Jai Kumar who was in the cash van and the amount was kept in the box and the said box was locked. After that Rs.3 lakh were collected from office of Delhi Jal Board, Karol Bagh, Rs.10 lakh was collected from LIC office at Sat Nagar, Karol Bagh all of which was kept in the box of the cash van. Thereafter they remembered that one packet of cash was left at the office of LIC. Cashier Jai Kumar went to take the said packet back and brought the said packet which was again kept in the box of cash van.
5. When the two person wearing helmet came to the side of PW-1 where the gunman Jai Pal Singh was also sitting adjacent to the driver then one boy had pointed out pistol towards PW-1. PW-1 had pushed the pistol which had fallen down in the cash van and thereafter PW-1 opened the back gate of the cash van and ran away in a gali and made a call at 100 number. PW-1 has deposed that the pistol had fallen in the van.
6. PW-1 has turned hostile to the fact of identification of accused SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 5 of 44 Rohit Kumar who has put pistol on Jai Pal Singh. PW-1 has also not identified the accused Santosh Kumar. PW-1 has not identified any of the accused during cross-examination. PW-1 in cross-examination dated 05.12.2014 has admitted as correct that the countrymade pistol found in the van was one with the robber and sketch memo of which is Ex.PW1/A and the pistol was taken in possession by the police vide seizure memo Ex.PW1/C. It is admitted as correct by PW-1 on cross-examination by ld. APP that police had seized the two fired empty cartridge, three live cartridge and one gun of Jai Pal Singh. PW-1 has not identified any of the accused during cross-examination and it is deposed as correct that none of the offenders had made any firing and only gunman of the cash van had made firing. It is admitted as correct that all writing work in the respective memo was done by police only. PW-2 has deposed that he had made two fire shots from his gun in the air as there was presence of public person. PW-2 had deposed that accused Mukesh came to his side and pointed out the pistol. PW-2 has correctly identified accused Mukesh before the Court who had pointed out the said pistol. PW-2 has correctly identified the accused Santosh who came towards driver side and dragged out driver Purushottam from the cash van. PW-2 has also identified accused Sanjay and Rohit. During cross-examination by ld. APP the PW-2 has identified Honda City car, EECO cash van and Discover Bajaj Motorcycle. It is deposed by PW-2 that he chased the car for a short distance then he fired twice in the air. It is deposed by PW-2 that he had seen the accused Rohit at the spot.
7. PW-1 in cross-examination dated 23.09.2019 and PW-2 in cross- examination dated 23.09.2019 has admitted as correct that no shot was SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 6 of 44 fired by the assailants and PW-2 had deposed that he has fired twice in the air while chasing the Honda City car. PW-8 had deposed in the cross- examination dated 06.05.2019 that accused Sanjay has come on motorcycle and accused Mukesh came in car. It is deposed by PW-8 that accused Santosh was also present in the car who had stopped the cashvan. PW-8 has not identified the accused Rohit due to lapse of time which is about 06 years period. PW-8 could not identify the accused Santosh in judicial TIP. PW-9 has deposed that two persons deboarded from the car and one offender has pointed out countrymade pistol towards him, the driver and dragged PW-9 from cashvan and took out the keys of cashvan. The said two offenders had also robbed the gun of PW-2 and remaining two offenders were taking out the cash from the cash box kept in the dicky. All the offenders had sat in the car and while running away they threw the gun of PW-2 which was picked by PW-2 who had made two fires in the air. Cashier Premvir and Jai Kumar had fled from the spot. PW-9 could not identify any of the offenders. It is deposed by PW-8 that one countrymade Katta which was left in the van was picked by the IO.
8. PW-19 has deposed that on 01.02.2014 he had perused the case file and report of ballistic expert recorded his satisfaction that at the instance of accused Sanjay one countrymade pistol and two live cartridge were recovered from vacant plot near his house. Accused Santosh had used countrymade pistol recovered earlier from the spot of crime. He accorded sanction under Section of 39 of Arms Act for prosecution of both the accused Sanjay and Santosh under Section 25 of Arms Act. The sanction is Ex.PW19/A. It is admitted as correct that sanction in respect of accused Santosh is granted only on the basis of disclosure statement of SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 7 of 44 accused Santosh who has left the countrymade pistol at the spot of crime. One pistol was recovered at the instance of accused Sanjay from a vacant plot near his house. PW-21 has deposed that SI Mangesh/PW-25 had lifted the countrymade pistol from the driver seat of the EECO van sketch of which is Ex.PW1/B and seizure memo of which is Ex.PW1/C. The motorcycle was seized vide memo Ex.PW1/D. PW-2 has produced his gun and two cartridge which were seized vide memo Ex.PW1/F. PW-21 had brought the FIR registered after receipt of rukka and further investigation was conducted by PW-25. The double barrel gun was seized which is Ex.PW2/P1 = Ex.P-1 and the two fired cartridge from the double barrel gun is Ex.P-8. Ex.P-8 was lifted from the spot. However Ex.P-8 were the empty cartridge fired from double barrel gun by PW-2 himself which is case of the prosecution and hence of firing of double barrel gun does not help the case of the prosecution. It is admitted by PW-21 that no firing was done by the offenders.
9. Now it has come on record that no firing was done by any of the offenders however two country made pistol Ex.F-1 and Ex.F-2 was recovered both of point .315 bore and two 8mm .315 cartridge marked Ex.A-1 and Ex.A-2 were recovered. PW-1 during cross-examination by ld. APP dated 05.12.2014 at page no. 3 has deposed as correct that one motorcycle of black colour without number plate came and stopped back side of our cash van. It is further admitted as correct that two person aged about 25-30 years got down from motorcycle and came near the cash van. One of the boy was having pistol and pointed towards PW-1. It is deposed voluntarily by PW-1 that only one boy was having pistol and pointed out towards PW-1. The prosecution has suggested to PW-1 that two boys SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 8 of 44 carried the pistol and pointed out the said pistol towards PW-2 and this suggestion is denied by the witness. Hence according to PW-1 the boys who came with pistol had come on motorcycle and pointed out that pistol towards PW-1. Hence in the alleged offence u/Sec. 397 IPC the prosecution witness has deposed that one pistol was used by one of the accused during commission of crime. However the identity of such accused has to be clearly established by the prosecution.
10. PW-2 Sh. Jai Pal Singh at page no. 2 of his examination-in-chief had deposed that accused Mukesh came towards his side and pointed out pistol towards him and accused Santosh was on the driver side who dragged the driver Purshottam from the cash van. In complaint Ex.PW1/A made by PW-1 has mentioned at point C that the two boys who came on motorcycle were having pistol who had pointed out pistol towards PW-1 and gunman Sh. Jai Pal Singh/PW-2. Now PW-1 in cross-examination dated 05.12.2014 has resiled from his earlier statement by claiming that only one boy was having pistol who had pointed it towards him and he could see only one boy having pistol pointed towards him. During cross- examination of PW-1 dated 05.12.2014 at page no. 3 it is deposed by PW-1 on suggestion by ld. APP for State that he did not see whether two boys came from Honda City car had dragged the driver/PW-9 in the cash van. It is suggested to PW-1 by ld. APP for State at page no. 2 in cross- examination dated 20.12.2014 that accused Santosh Kumar had pushed the driver of the cash van and removed the key of the cash van and such identification of accused Santosh Kumar at police station by PW-1 is denied.
SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 9 of 4411. The deposition of PW-2 Jai Pal Singh that the two boys who came on motorcycle as recorded in Ex.PW1/A had pointed out the pistol. The two boys are accused Mukesh and accused Santosh whereas PW-8 has deposed in cross-examination dated 06.05.2019 that accused Sanjay has come on motorcycle and accused Mukesh came in car. The accused Santosh was present in car. Hence PW-2 has deposed contradictorily to the deposition of PW-8 regarding coming of accused Santosh towards the driver side of the cashvan where Sh. Purshottam was sitting. In view of such contradiction it cannot be said that accused Santosh came towards the driver side of the cashvan on motorcycle. Hence it cannot be said that accused Santosh had pointed out pistol towards the driver side of the cashvan where Sh. Purshottam/PW-8 was sitting. PW-8 had deposed that accused Santosh was present in the car. Hence it cannot be said that any pistol was pointed out by accused Santosh. Doubt has arisen in such pointing out of pistol by accused Santosh on the driver Sh. Purshottam/PW-8 and hence benefit in this regard is extended to both the accused Santosh and accused Sanjay. Hence it is held that prosecution has failed to prove that accused Sanjay or accused Santosh had extended threat by pointing out pistol on the driver Sh. Purshottam. It is admitted as correct by PW-8 that he could not identify accused Santosh in judicial TIP proceedings.
12. Now it has to be seen that whether accused Mukesh had extended threat to PW-2 Sh. Jai Pal Singh, the gunman. PW-2 in deposition dated 20.12.2014 has deposed that two rider came on motorcycle. The rider and pillion rider came to the cashvan and both had came on the left side. Pistol was taken out and pointed towards PW-2. It is deposed that SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 10 of 44 accused Mukesh had pointed out pistol towards PW-2. PW-8 has deposed that one person came out of car and pointed out pistol towards Prem Vir. PW-1 Prem Vir has deposed that two person wearing helmet came towards PW-1. The gunman/PW-2 was sitting adjacent to the driver seat. One boy had pointed pistol towards PW-1. PW-2 the gunman has deposed that the rider and pillion rider pointed out pistol towards him. Hence the deposition of PW-1 and PW-2 is contradictory that towards whom the gun was pointed out by the accused. Further, it is contradictory with the deposition of PW-8 that one boy each went to both the sides of the cashvan out of the two boys. PW-1 has deposed that both the boy had came to his side supporting deposition of PW-2 that both the boy came to the side other than the side of driver. However they are contradictory with regard to fact whether the pistol was pointed out towards PW-1 or PW-2. The deposition of PW-8 is contradictory to the deposition of PW-1 and PW-2. PW-8 had deposed that the boys who had pointed out the pistol on PW-1 had came in car and not on motorcycle and both the boy did not went to the side of PW- 1 or PW-2 but one of the boy among the two boys went on the side of driver and pointed revolver towards the side of driver. The driver Sh. Purshottam has deposed contradictory to PW-2 Sh. Jai Pal Singh to the fact that the offender who had pointed out country made pistol towards PW-9 had deboarded from the car and not from the motorcycle. The gun was pointed towards PW-9 by one of the offenders and PW-9 could not identify any of the offenders. The complainant/PW-1 in complaint Ex. PW1/A has stated at point C in the complaint that the boys had came on motorcycle and the two boys had pointed out the pistol towards the gunman Jai Pal. It is not mentioned in the complaint that the boy who came from Honda City car allegedly pulled the driver Purshottam had pointed out any pistol SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 11 of 44 towards the driver/PW-9. Hence the complaint Ex.PW1/A is also contradictory to deposition of PW-2 that the boys who pointed out the pistol were rider and pillion rider on a motorcycle. Hence the deposition of prosecution witness regarding pointing out of pistol by accused Mukesh or accused Sanjay or accused Santosh is repleated with contradiction and inherent improbabilities and cannot be relied upon for the purpose of which of the accused had pointed out the pistol and which of the accused had come on either side of driver or the passenger side. Hence benefit of doubt is extended in this regard to accused Mukesh, accused Sanjay and accused Santosh in that it cannot be said any certainty that accused had came on driver side or passenger side or that they had pointed out pistol on PW-9 or PW-1 or PW-2 at any point of time in the alleged robbery. Hence accused Mukesh and accused Sanjay are acquitted under Section 391 IPC read with Section 397 IPC since prosecution has failed to prove that the above two accused had extended any threat by pointing out pistol in the alleged robbery.
13. Accused Sanjay is charged under Section 25 of Arms Act that on 26.11.2013 on a vacant plot in bushes in his House no. B-1/20, Aman Vihar, Nangloi, Delhi he was found in possession of one country made pistol and one live cartridge without having any permit or licence. PW-19 had granted sanction of prosecution of accused Sanjay on recovery of one countrymade pistol and two live cartridges. PW-19 has also granted sanction against accused Santosh having used countrymade pistol recovered from the spot of crime in the cash van. Sanction Ex.PW19/A was granted under Section 39 of Arms Act punishable under Section 25 of Arms Act. It is admitted as correct by PW-19 that the sanction in respect of SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 12 of 44 accused Santosh was granted only on the basis of disclosure statement of the accused Santosh that he had left the country made pistol at the spot of crime which was used by him. However, it has already held above that in the entire evidence the prosecution has failed to prove that the accused Santosh had ever made use of the country made pistol at the spot of crime. Accused Santosh was not identified in judicial TIP and nor the accused Santosh was riding the alleged motorcycle and therefore it cannot be said that which of the two boys came with revolver and allegedly pointed out pistol towards PW-1 or PW-2 or PW-9. Hence, accused Santosh could not be connected in any manner with the pistol which was recovered from the spot of crime nor it could be proved on record by the prosecution that the accused Santosh had ever used the pistol in the alleged crime. Now it has to be seen that what is the culpability of the pistol recovered from accused Sanjay on his alleged disclosure. PW-19 had admitted that the sanction against accused Sanjay is granted only on the basis of disclosure statement of accused Sanjay. Now it has to be seen that whether the alleged recovery made from accused Sanjay could be relied upon under Section 27 of Indian Evidence Act. The law in respect of recovery under Section 27 is clearly laid down in case titled Oma @ Om Prakash and Anr. vs. State of Tamilnadu from Hon'ble Supreme Court of India in Criminal Appeal No.143 of 2007 decided on 11.12.2012 at relevant para no.37 & 38 which are reproduced herein under:
37. In Dwarkadas Gehanmal v. State of Gujarat (1999) 1 SCC 57, this Court has held that it is for the prosecution to prove that the object recovered has nexus with the crime. This Court in Mustkeem alias Sirajudeen v. State of Rajasthan (2011) 11 SCC 724 held, "what is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution." This Court held as follows:
"With regard to Section 27 of the Act, what is important is discovery of SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 13 of 44 the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution."
38. In this case, the prosecution could not prove that the rod recovered has any nexus with the crime alleged to have been committed by A-2. We are of the view that the prosecution, therefore, could not establish the guilt of the second accused beyond reasonable doubt. The High Court, therefore, committed a gross error in awarding life sentence to A2.
14. It is deposed by PW-23 that accused Sanjay led the investigating team to Bhagya Vihar, Madanpur Dabas, Delhi and they could not find any incriminating articles in House No. B-43/20. Thereafter, accused Sanjay led them to the left side of his plot where inside the bushes in a black colour bag was found one country made pistol with two live cartridges with 40 currency notes of Rs.500 denomination and 110 notes of Rs.100 denomination. The currency notes of Rs.100 denomination was having stamp of Bhartiya Jiwan Bima Nigam. The total sum recovered was Rs.30,000/-. PW-24 Ct. Aman had deposed about the alleged recovery of pistol. PW-25 had recorded disclosure statement of accused Sanjay vide Ex.PW25/J. PW-26 alongwith Ct. Aman, and Ct. Kalicharan had taken the accused Sanjay on PC remand on 26.11.2013 and made search of house of accused Sanjay where no incriminating articles was recovered. However on the left side adjacent plot of his house inside the bushes in a black colour bag one countrymade pistol with two live cartridges were recovered. The sketch of the pistol is Ex.PW23/A and seizure memo of which is Ex.PW23/B. The rough site plan is Ex.PW23/B. The countrymade pistol with two empty cartridges is already Ex.P-5 recorded during the SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 14 of 44 testimony of PW-5. PW-25 in cross examination had admitted that he did not request nearby residents to join the investigation but only few passer- by were requested who refused to join the investigation on whom any notice was not served. The recovery proceedings were neither photographed nor videographed. Hence, the only evidence against the accused Sanjay regarding recovery of pistol is his disclosure statement and the alleged recovery. The prosecution must establish that the burden lies on the prosecution to establish a close link between discovery of material object and its use in the commission of offence. Before that it has to be established by the prosecution that there was such discovery within the four corners of Indian Evidence Act. The law in respect of discovery under Section 27 of the Indian Evidence Act is laid down in case titled as Bijender @ Mandar vs. State of Haryana in Criminal Appeal No. 2438 of 2010 decided on 08.11.2021 a from Hon'ble Supreme Court of India and that relevant paras No.16, 17 , 19 and 20 are reproduced herein under:
16. We have implored ourselves with abounding pronouncements of this Court on this point. It may be true that at times the Court can convict an accused exclusively on the basis of his disclosure statement and the resultant recovery of inculpatory material. However, in order to sustain the guilt of such accused, the recovery should be unimpeachable and not be shrouded with elements of doubt. We may hasten to add that circumstances such as
(i) the period of interval between the malfeasance and the disclosure;
(ii) commonality of the recovered object and its availability in the market;
(iii) nature of the object and its relevance to the crime;
(iv) ease of transferability of the object;
(v) the testimony and trustworthiness of the attesting witness before the Court and/or other like factors, are weighty considerations that aid in gauging the intrinsic evidentiary value and credibility of the recovery. (See: Tulsiram Kanu vs. The State2; Pancho vs. State of Haryana3; State of Rajasthan vs. Talevar & Anr 4 and Bharama Parasram Kudhachkar vs. State of Karnataka5) SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 15 of 44
17. Incontrovertibly, where the prosecution fails to inspire confidence in the manner and/or contents of the recovery with regard to its nexus to the alleged offence, the Court ought to stretch the benefit of doubt to the accused. Its nearly three centuries old cardinal principle of criminal jurisprudence that "it is better that ten guilty persons escape, than that one innocent suffer". The doctrine of extending benefit of doubt to an accused, notwithstanding the proof of a strong suspicion, holds its fort on the premise that "the acquittal of a guilty person constitutes a miscarriage of justice just as much as the conviction of the innocent".
19. Unmindful of these age old parameters, we find that the Prosecution in the present case has miserably failed to bring home the guilt of the Appellant and Courts below have been unwittingly swayed by irrelevant considerations, such as the rise in the incidents of dacoity. In its desire to hold a heavy hand over such derelictions, the Trial Court and the High Court have hastened to shift the burden on the Appellant to elucidate how he be chanced to be in possession of the incriminating articles, without primarily scrutinizing the credibility and admissibility of the recovery as well as its linkage to the misconduct. We say so for the following reasons:
Firstly, the High Court and the Trial Court failed to take into consideration that the testimony of ASI Rajinder Kumar (PW-14) exhibited no substantial effort made by the police for conducting the search of the residence of the Appellant in the presence of local witnesses. The only independent witness to the recovery was Raldu (PW¬8) who was admittedly a companion of the Complainant.
Secondly, the Complainant (PW¬4) as well as Raldu (PW¬8), have unambiguously refuted that neither the passbook, nor the red cloth was recovered from the possession of the Appellant, as claimed in his disclosure statement.
Thirdly, while the Complainant (PW¬4) negated his signatures on the recovery memo (EX. PD/2), on the other hand, Raldu (PW¬8) also neither enumerated the recovery memo (Ex. PD/2) in the catalogue of exhibited documents, nor did that he affirm to having his endorsement.
Fourthly, the recovered articles are common place objects such as money which can be easily transferred from one hand to another and the 'red cloth' with 'Kamla' embossed on it, as has been acceded by the Investigating Officer, Rajinder Kumar (PW¬14), can also be easily available in market.
Fifthly, the recovery took place nearly a month after the commission of the alleged offence. We find it incredulous, that the Appellant during SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 16 of 44 the entire time period kept both the red cloth and the passbook in his custody, along with the money he allegedly robbed off the Complainant.
Sixthly and finally, there is no other evidence on record which even remotely points towards the iniquity of the Appellant.
20. It appears to us that the Trial Court and the High Court have erroneously drawn adverse inference against the Appellant, in spite of the Prosecution having lamentably failed to adequately dispense with its burden of proof to depict culpability of the Appellant. As far as the view of the Trial Court and the High Court qua the alleged threat is concerned, we find it hard pressed to give credence to such allegations in the absence of any compelling evidence to substantiate the same. Although, the Prosecution has attempted to place reliance on the affidavit presented by the Complainant during the T.I.P. offered by the co accused Manjeet, we find that the said affidavit does not name the Appellant herein and pertains solely to Manjeet.
15. It was held that when recovery of articles are common place objects which can be easily transferred from one hand to another or a red cloth with Kamla Embossed on it then it cannot be relied upon specifically against the accused as it is easily available in the market. It is also held therein that when the recovery took place nearly a one month after the commission of alleged offence then it cannot be believed that during the entire period the accused kept both the red cloth and passbook in his custody with the money. In the present case, the accused Sanjay was taken PC remand on 26.11.2013 and the date of offence is 07.11.2013. It cannot be believed that after a period of about 15 days the accused Sanjay will keep pistol in his possession. Further, the alleged recovery was effected from a common place accessible to any other public person. The recovery was made from a open vacant plot adjacent to the house of the accused. Since the recovery was effected from an open vacant land then it cannot be said that this recovery of countrymade pistol was effected from accused Sanjay and it could not belong to anyone else. It cannot be specifically said SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 17 of 44 that this pistol belongs to accused Sanjay only. Hence the recovery of countrymade pistol from accused Sanjay is doubtful. Further, the said pistol seized vide Ex.PW23/B and its sketch Ex.PW23/A were also not proved in evidence of PW-1, PW-2, PW-8 or PW-9 and therefore it cannot be said that the said pistol was recovered from the custody of accused Sanjay. The prosecution has also failed to prove that the accused Sanjay had used the said pistol during the commission of crime. Hence, it is held that prosecution has failed to prove that any pistol was recovered from the disclosure statement made by accused Sanjay and that prosecution has also failed to prove that the accused Sanjay had used the pistol or deadly weapon during the commission of crime alleged by the prosecution. Hence, the accused Sanjay is acquitted under Section 25 of the Arms Act as no pistol is found recovered from him nor it is proved on record that the said pistol was used by him during the commission of the alleged crime.
16. The accused no. 1 Mukesh Kumar, accused no. 2 Rohit Kumar, accused no. 3 Santosh Kumar, accused no. 4 Sanjay @ Ajay and accused no. 6 Ravinder Singh @ Ravi have allegedly committed offence under Section 395 IPC on 07.11.2013 around 12:00 pm at open road at 3A, Block WEA, Sat Nagar, Karol Bagh, Delhi within jurisdiction of PS Prasad Nagar robbed Rs.14,25,000/- from PW-1/Prem Vir Singh, cashier Jai Kumar, gunman Jai Pal and driver Purshottam all employees of Cash Management Service Company, Jhandelwalan, Delhi on the point of country made pistol.
17. The necessary ingredient to satisfy requirement of Section 395 IPC are laid down in case titled Azad @ Gaurav vs. State of GNCT of Delhi & SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 18 of 44 Anr. in Crl. A. 593/2022 & Crl. M. 1420/2022 from Hon'ble High Court of Delhi dated 23rd March 2023 at relevant para no. 2, 6, 17.6 are reproduced hereasunder:
2. Section 391 IPC defines dacoity. It reads as under:-
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 to five or more, every person so committing, attempting or aiding, is said to commit dacoity.
Dacoity is commission of robbery by five or more persons otherwise there is no difference between dacoity and robbery. The essential ingredients of Section 391 are:
i. Five or more persons must act in association, ii. Such act must be robbery or attempt to commit robbery, iii. The five persons must consist of those who themselves commit or attempt to commit robbery or those who are present and aid the principal actors in the commission or attempt of such robbery.primarily scrutinizing the credibility and admissibility of the recovery as well as its linkage to the misconduct The commission of robbery in association by five or more persons is an essential ingredient of the offence under Section 391 IPC. The gravity of the offence consists in the terror it causes by the presence of a number of offenders. Abettors who are present and aiding when the crime is committed are counted in the number. For the application of Section 391 IPC it is necessary that all the persons should share the common intention of committing robbery. The accused must be shown to have committed robbery or aided in the commission of it and they must be among the body of persons who extorted money or aided them in extorting money. Section 395 IPC provides punishment for committing dacoity. It reads as under:-
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.
6. The convicting court while convicting appellants and convict Kanhaie Jha, primarily relied on testimonies of the complainant Manish Aggarwal PW1, Nodal Officers from different telecommunication companies and recoveries affected from the appellants and convict Kanhaie Jha in pursuance of their disclosure statements. The relevant portion of impugned judgment is reproduced as under:-
37. The prosecution in order to prove its case has to establish the SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 19 of 44 occurrence of incident and identity of the accused persons facing trial before the court beyond reasonable doubt. In the case in hand, PW-1 Manish Aggarwal, the only victim and eye witness of the crime, is the prime witness of the prosecution around whom the entire case is revolving, who saw the assailants while committing the robbery with him.
38. The testimony of PW-1 on the incident is consistent that on 30.06.2017, at about 04:30 PM, he after collecting the payment of Rs.2,64,000/-, kept by him in a bag left Chandni Chowk in a rickshaw for Tis Hazari Metro Station where two boys stalked him, out of whom one was armed with the pistol and at the point of pistol those boys snatched his bag containing cash of Rs.2,64,000/- and certain other documents, thereafter, both the said boys ran towards the road side where two other boys were already standing on two different motorcycles and the former sat on those motorcycles and ran away from the spot. The testimony of PW-1 regarding collection of money from the area of Chandni Chowk is supported with the testimony of PW-18 Kamlesh Kumar from whose shop the said amount was collected by PW-1. Even, the Call Detail Record (Ex. PW-2/A) proved by the prosecution from the testimony of PW-2, Sh. Pawan Kumar, Nodal Officer, Vodafone, the location of PW-1, on the date and time of the incident was found to be of the spot i.e. Tis Hazari Metro Station. Nothing has come in the cross examination of PW- 1 which may cast doubt on his testimony on the occurrence and may lead the case of the prosecution under the shadow of clouds.
39. As discussed hereinabove, the Prosecution has succeeded in proving occurrence of incident with PW-1. Now, the court has to evaluate whether the accused persons facing trail before the court has committed the offence as alleged against them, whether their identity is proved by the Prosecution beyond reasonable doubt and whether the material on record is sufficient to record their conviction for the incident occurred with PW-1.
47. Accused Bharat Kumar Goswami is also charged for the offence U/s 397 IPC on the allegations that he at the time of robbery shown pistol to PW-1. During examination in chief, PW-1 correctly identified accused Bharat Kumar Goswami who shown him the pistol. During cross examination of this PW conducted by Ld. APP, he said that accused Kanhaie Jha was wearing helmet at the time of incident which was without glass. During cross examination of PW-1conducted by counsel of accused Bharat Kumar Goswami, he said that the person who aimed gun on him was wearing a helmet. The statement of PW-1 that at the time of incident, accused Kanhaie Jha was wearing the helmet and he shown him the pistol entitles the accused Bharat Kumar Goswami for benefit of doubt for the offence U/s 397 IPC.
48. In view of aforesaid discussion, the material on record is sufficient to record conviction of all 4 accused persons namely Bharat Kumar SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 20 of 44 Goswami, Kanhaie Jha, Azad @ Gaurav and Jitender @ Jeetu for the offence U/s 395 IPC, accordingly, they are convicted under the said provision. However, accused Bharat Kumar Goswami is given benefit of doubt for the offence U/s 397 IPC. Accordingly, accused Bharat Kumar Goswami is acquitted for the offence U/s 397 IPC. Conviction of the accused persons have been recorded for the offence u/s 395 IPC, therefore, there is no need to record their separate conviction for the offence u/s 392 IPC charged against them.
17.6 The counsel for the appellant jitender @ jitu relied on the judgment of Bijender @ Mandar V State of Haryana decided by the Supreme Court in criminal appeal no.2438 of 2010. It was observed as under:-
19.Unmindful of these age-old parameters, we find that the Prosecution in the present case has miserably failed to bring home the guilt of the Appellant and Courts below have been unwittingly swayed by irrelevant considerations, such as the rise in the incidents of dacoity. In its desire to hold a heavy hand over such derelictions, the Trial Court and the High Court have hastened to shift the burden on-the Appellant to elucidate how he bechanced to be in possession of the incriminating articles, without primarily scrutinizing the credibility and admissibility of the recovery as well as its linkage to the misconduct. We say so for the following reasons:
Firstly, the High Court and the Trial Court failed to take. into consideration that the testimony of ASI Rajinder Kumar (PW-14) exhibited no substantial effort made by the police for conducting the search of the residence of the Appellant in the presence of local witnesses. The only independent witness to the recovery was Raldu (PW-8) who was admittedly a companion of the Complainant. Secondly, the Complainant (PW-4) as well as Raldu (PW-8) have unambiguously refuted that neither the passbook, nor the red cloth was recovered from the possession of the Appellant, as claimed in his disclosure statement.
Thirdly, while the Complainant (PW-4) negated his signatures on the recovery memo (EX. PD/2), on the other hand. Raldu (PW-8) also neither enumerated the recovery memo (Ex. PD/2) in the catalogue of exhibited documents, nor did that he affirm to having his endorsement. Fourthly. the recovered articles are common place objects such as money which car be easily transferred from ore hand to another and the 'red cloth with 'Kamla' embossed on it, as has been racceded by the Investigating Officer, Rajinder Kumar (PW-14), can also be easily available in market.
Fifthly, the recovery took place nearly a month after the commission of the alleged offence. We find it incredulous, that the Appellant during the entire time period kept both the red cloth and the passbook in his SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 21 of 44 custody, along with the money he allegedly robbed off the Complainant. Sixthly and finally, there is no other evidence on record which even remotely points towards the iniquity of the Appellant.
17.1 The accused no. 5 Rahul has already been discharged by my ld.
Predecessor vide order dated 09.07.2014 and hence only five accused have remained in the present case out of which accused no. 6 Ravinder Singh @ Ravi has already been convicted vide order dated 28.04.2017. It is noted that accused Ravinder @ Parminder @ Ravi is convicted only under Section 174A (1 IPC) and he is discharged/acquitted under Section 395/397/412/120- IPC r/w Section 25/27 of Arms Act. Hence only four accused out of five accused are prosecuted in the present case under substantive offence and two of the accused out of six are acquitted under the substantive offence. PW-1 had deposed that two person came in motorcycle and one Honda City car had stopped in front of cash van. It is deposed in cross-examination that two other boys got down from Honda City car and it is denied that one of the robber was sitting in Honda City car keeping it in starting condition. It is denied that PW-1 deliberately did not identify the accused Rohit who put pistol on Jai Pal at the time of incident. It is denied that accused Rohit was watching at the LIC office on 07.11.2013. PW-2 has deposed that rider and pillion rider of motorcycle came towards the cashvan and two persons had board down from Honda City car. PW-2 has deposed in examination-in-chief dated 20.12.2014 that all four person after taking the cash and bags were sitting in the Honda City car. Hence PW-2 has deposed only about four accused person and not more than four accused person. PW-2 had deposed that accused Rohit had fled in helmet from Honda City car from the spot of crime. It is deposed that all the accused person have wearing helmet. Accused Mukesh and SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 22 of 44 accused Sanjay were identified before the Court by PW-2. Hence PW-2 could not point out specifically five or more person who had allegedly committed robbery. PW-8 had deposed that two person had came out of the car one on the driver side and one on the passenger side had pointed out the pistol on both the sides. It is deposed that accused Sanjay came on motorcycle and accused Mukesh came in car. Accused Santosh was also present in the car. Accused Rohit is not identified by PW-8. Hence PW-8 does not lead evidence that there were five persons. PW-9 had deposed that two persons came out of the car one of which had pointed out countrymade pistol and other went to the driver side. Two offenders were taking out cash from the cash box and two other offenders came out of the car and took out cash from cash box. The PW-9 had not identified the accused Santosh and Sanjay. Hence in total PW-9 has stated about six accused person four of whom came from car. There is no cross-examination of PW-9 in this respect number of person who came to rob. Since PW-9 proved that there were six person in total who came to rob the cashvan therefore the requirement of Section 395 IPC is satisfied and it is proved that there were five and more person and the offence comes under the category of dacoity.
18. Now it has to be seen that whether offence of dacoity was committed or not. The first ingredient that there were five or more person is already stands proved and satisfied. The next ingredient has to be seen that whether robbery or attempt to commit robbery was made out. To prove second ingredient that in order of committing theft the accused had carried away property obtained by theft and for that end the accused has voluntarily caused fear of instant death or hurt or wrongful restraint or such attempt was caused by the accused. The dacoity is defined under SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 23 of 44 Section 391 of IPC and punishment of which is laid down under Section 395 IPC. It is a matter of record that by the time the police had reached at the spot of crime none of the accused was present. Hence, the prosecution has to prove by evidence that there was a sum of Rs.14,25,000/- which was available in the cash van when the alleged dacoity was committed. It is deposed by PW-2 that currency note of Rs.500/- denomination and total currency note 100 in number, which had fallen at the spot while the accused were taking cash away, were seized which is Ex.PW2/P2. Hence, a total of Rs.50,000/- was recovered at the spot. The charge against all the accused is that they had committed a robbery of Rs.14,25,000/-. It is deposed by PW-1 that Rs.1,25,000/- was collected by Sh. Jai Kumar. Thereafter, Rs.3,00,000/- was collected from the office of Delhi Jal Board, Karol Bagh, Delhi and Rs.10,00,000/- was collected from LIC Office at Sat Nagar, Karol Bagh, Delhi. The total collected amount as per deposition of PW-1 is Rs.14,25,000/-. PW-2 Jai Pal Singh is the gunman. PW-8 Jai Kumar is the Security Guard. PW-8 Jai Kumar has not proved the amount of money brought by him from Delhi Jal Board. It is deposed by PW-8 that he alongwith PW-1 had collected cash from Office of LIC and they had forgot to collect one bundle of currency notes for a sum of Rs.100 denomination which was collected by PW-8 immediately thereafter and returned back to van. Police had reached at the spot after about 25-30 minutes. Hence, PW-8 does not state about collection of Rs.3,00,000/- and another Rs.1,25,000/- from the Office of Delhi Jal Board. No other evidence is produced by the prosecution to prove such collection of cash in such denomination of currency notes. When the total amount collected in the cash van was Rs.14,25,000/- and when Rs.50,000/- had already fallen at the spot and seized by the IO from the spot then the remaining left SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 24 of 44 amount which could be robbed and taken away by the accused persons is Rs.13,75,000/- only by the own version of the prosecution and it cannot be Rs.14,25,000/-. The oral deposition of prosecution witnesses about the amount of theft or dacoity is rebutted by oral suggestions by the accused in cross-examination. Hence, something more is required on behalf of prosecution to prove on record that such was the amount available in the cash van. The prosecution has tried to meet such proof by showing the expenses made by accused persons at various points and not by producing the relevant documentary evidence from where the cash was collected in the cash van. The cash must have been collected under signatures only and it would have been easier for the prosecution to prove such collection by the occupants of the cash van in which the alleged robbery had occurred. No such evidence is produced on record.
19. PW-13 had deposed that he is running a public school and a fee for a sum of Rs.4,400/- vide receipt no. 4268 and fee for a sum of Rs.4,300/- vide receipt no. 4281 were paid and the receipts were seized by IO vide seizure memo Ex.PW13/A. However, the above payment of receipt amount does not prove in any manner that it was the cash amount and this money which was collected from dacoity. Further, this amount is not a very big amount which cannot be said to be available with the accused person. Even the financial status of the accused person is not proved on record without which the onus never shifts on the accused persons. Other than this PW-18 Sh. Pramod Rai, Branch Manager, Muthoot Finance Ltd. had produced original loan file of Mukesh Kumar whereby on 07.11.2013 accused Mukesh Kumar had deposited cash amount for a sum of Rs.11,199/- and cleared the loan and got released a SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 25 of 44 pair of gold tops mortgaged by him. Receipt is Ex.PW18/A which was seized vide seizure memo Ex.PW18/B. The said receipt was seized by IO from the Branch Manager Sh. Trilok Chand. Again though it is suspicious that this amount could have been the amount collected from the robbery, however, it does not turn into proof in absence of proof of serial number of currency notes which was stolen away and deposited with PW-18. There is no other proof to show on record that this amount could have been deposited by accused Mukesh Kumar on 07.11.2013 after committing dacoity. Further, there is no time of deposit of this money. The amount is also not such a big amount which could not be said to be available to an ordinary man. Even the minimum wages of a person on 07.11.2013 could be more than the amount deposited with PW-18. The fee deposited were pertaining to two students namely Etech and Aditya. In such view of the matter there is absence of proof of such collection of amount of money from Delhi Jal Board or LIC. Further when the accused are charged for the amount of money for a sum of Rs.14,25,000/- though Rs.50,000/- was already recovered at the spot then it creates doubt in the case of the prosecution the benefit of which must go to the accused.
20. Now it has to be seen that whether the recovery of money effected from the accused person can be accepted keeping in view the test laid down under Section 27 of the Indian Evidence Act. It is held in case titled Oma @ Om Prakash and Anr. vs. State of Tamilnadu from Hon'ble Supreme Court of India in Criminal Appeal No.143 of 2007 decided on 11.12.2012 (supra) at relevant para no. 37 and 38 that it is for the prosecution to prove that the object recovered has nexus with the crime. What is admissible under Section 27 of the Act is the information SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 26 of 44 leading to the discovery and not any opinion formed on it by the prosecution. Close link between discovery of material object and its use in the commission of offence has to be proved.
21. It was further laid down by Hon'ble Supreme Court of India in case titled Bijender @ Mandar vs. State of Haryana from Hon'ble Supreme Court of India in Criminal Appeal No. 2438 of 2010 (supra) has laid down, the guiding factors in reference to which the disclosure and recovery could be having nexus to the alleged offence. It was held therein that the doctrine of extending benefit of doubt to an accused, notwithstanding the proof of a strong suspicion hold its fort on the premise that "the acquittal of a guilty person constitutes a miscarriage of justice just as much as the conviction of an innocent".
22. It is deposed by PW-15 that Insp. Arvind had instructed him to conduct raid on 10.11.2013 at Y block, Mangolpuri, Delhi on receipt of information from secret informer. SI Gurmeet, HC Mohd. Abrar, HC Ramesh, Ct. Ajay, Ct. Vivek and other constables were consisting of raiding party. DD no. 8 was lodged in roznamcha and the passersby did not join the raiding party despite of request. At about 7:45 pm on pointing out by secret informer accused Mukesh, Santosh, accused Rohit and Amit were apprehended. Mobile phone were recovered from the possession of the above accused. Rs.60,000/- were recovered vide seizure memo Ex.PW15/E from the track suit upper of the accused Mukesh. Rs.40,000/- was recovered vide seizure memo Ex.PW15/F from accused Rohit from the pocket under his sweater. Rs.90,000/- was recovered from accused Santosh from pocket of upper track suit which is also Ex.PW15/F. SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 27 of 44 Rs.15,000/- was recovered from accused Amit from his right side pocket of his pant vide seizure memo Ex.PW15/G. PW-23 had deposed that on 26.11.2013 accused Sanjay had led them to Bhagya Vihar, Madanpur Dabas, Delhi to his house where no incriminating article was recovered. Then accused Sanjay led the investigation team to the left side of plot of his house and from inside the bushes he picked up one black colour bag which was found containing one country made pistol and two live cartridges, 40 notes of Rs.500 denomination and 100 notes of Rs.100 denomination. Hence, the total amount recovered from accused Sanjay is Rs.30,000/- which was seized vide seizure memo Ex.PW23/C. The currency notes are already released on superdari. It is deposed by PW-23 that in his presence the IO had not requested nearby residents to join investigation. It is suggested to PW-23 that IO had pressurized one Sh. Ratan Singh to bring a sum of Rs.1,00,000/- and when the said amount was brought and taken by IO then Rs.30,000/- were shown to have been recovered from accused Sanjay. Similar is the deposition of PW-24 regarding possible taking money from Sh. Ratan Singh. PW-26 had deposed that he had not asked resident for joining investigation however, he has asked the passerby but they had refused to join the investigation. The arrest memos of respective accused were prepared. It is admitted by PW-15 that the serial number of currency notes was not noted down by PW-15 and no identification marks was their on the recovered currency notes. The suggestion is denied that the accused persons were lifted from their residence. PW-15 had remained at the spot for about 4 hours and no public witness had prepared to sign the seizure memo. Suggestion was given that the signatures of accused persons were obtained forcibly on blank papers and the cash was taken from family members of the accused SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 28 of 44 who were pressurized to bring the cash. PW-17 had deposed that PW-15 had requested 7-8 passerby to join the raiding party but they refused to join and left and PW-17 had repeated the deposition of PW-15 regarding seizure, arrest and recovery. In cross examination. PW-16 had deposed that serial number of currency notes was not noted down of any of the currency notes. PW-17 had admitted as correct that there was no identification marks on the recovered currency notes.
23. It is noted that the prosecution had not proved in the entire evidence that how such an amount was collected by them and from whom. No such witness is brought on record to identify the seizure of currency notes. Even the number of currency notes is not proved on record.
24. It is noted that the alleged recovery had taken place on 10.11.2013 after about 03 days from the date of alleged dacoity on 07.11.2013. It is inconceivable that the accused persons would be carrying with them on their person that too all of them together at one single place the alleged amount of recovered currency notes. The natural conduct would be to keep the money hidden at some place. Other then this the money allegedly looted was more than Rs.13,00,000/- and in comparison to which the amount recovered is not even Rs.2,00,000/-. The recovered articles are common place objects such as money which can be easily transferred from one hand to another and there is absence of special attribution of the recovered currency notes to connect them to the offence of dacoity. Further, there is no other evidence on record which point out towards iniquity of the accused persons in reference to recovery of currency notes. The recovery of currency notes from accused Sanjay for a SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 29 of 44 sum of Rs.30,000/- is from open vacant plot inside bushes which is easily accessible to any other person. Therefore it cannot be said that accused Sanjay only could have put such currency notes in the bushes. Other then this there is no identification mark on such currency notes to connect them to the offence of dacoity. Hence, the credibility and admissibility of the recovery of currency notes from all the above accused persons is doubtful. It is held that the prosecution had failed to prove on record the recovery of currency notes having any linkage to the misconduct of the dacoity. Further, in absence of joining any local witness or public witness it cannot be said that this amount was recovered from the above accused person. There is total absence of linkage of recovered currency notes with the offence of dacoity. Hence the prosecution has failed to prove the recovery of currency notes having any nexus with the alleged offence. Hence, there is no such incriminating recovery under Section 27 of Indian Evidence Act which could be held culpable against the accused person. The benefit of doubt therefore needs to be extended to the accused person in this regard and it is therefore so extended. Hence it is held that the alleged currency notes from the accused person has not nexus with the offence of robbery in the present case.
25. Now it has to be seen that whether the accused person were duly identified at the spot of crime by the prosecution witness to claim any link between the accused person and the alleged offence of dacoity. The public witness available on record have identified the accused person as discussed at para no. 6, 7, 10, 11, 12 of this judgment above which are not reproduced herein for the sake of brevity and it is already held above that the deposition of prosecution witness is repleated with contradiction and SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 30 of 44 inherent probabilities. The accused Santosh was not identified in judicial TIP and the other accused have deposed contradictorily that which of the accused came on the motorcycle and which of the accused came in car. Further, there is contradiction that which of the accused had pointed out pistol on which side of the cash van either towards the driver or towards the passenger side. The accused person were not arrested on the spot. Even PW-1 the complainant has improved his version during his deposition before the Court in reference to complaint Ex.PW1/A in that two person came on motorcycle had pointed out pistol towards gunman Jai Pal and two person came from Honda City car had pulled the driver Sh. Purshottam. Whereas in his deposition it is deposed that one person had pointed out pistol towards PW-1 the complainant Sh. Prem Vir and not towards gunman Sh. Jai Pal Singh. It is deposed in cross-examination that PW-1 cannot say whether both the boys came on motorcycle had pistol. One of the boy had pointed out pistol towards PW-1. It is further deposed that he could not see whether the boys came from Honda City car had dragged driver Sh. Purshottam out from cash van. Hence it cannot be said that the accused person were duly identified by prosecution witness as the deposition of prosecution witness is contrary not only to each other but also to the complaint Ex.PW1/A. The specific identification of any of the accused and their respective role could not be proved by the prosecution specifically. Hence it is held that prosecution has failed to prove on record the second ingredient that there was robbery or attempt to commit robbery.
26. When the second ingredient is not satisfied then the third ingredient which is requirement of five person who were committing or attempting to commit robbery by themselves or doing aid cannot be said to SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 31 of 44 have been satisfied on the basis of same evidence and reasons discussed above under second ingredient. Hence the third ingredient of the offence as laid down under Section 391 IPC is held not satisfied in the present case.
27. Now coming to charge under Section 412 IPC levelled against accused no. 1 Mukesh Kumar, accused no. 2 Rohit Kumar, accused no. 3 Santosh Kumar, accused no. 4 Sanjay @ Ajay it is incumbent upon the prosecution to satisfy that they were found in possession of money robbed or money recovered during an attempt to commit such robbery. When the main ingredient itself which is Section 391 IPC is not proved on record when the dependent/subjugate offence which is Section 412 IPC also could not be proved as the money which is recovered from the accused person is not found with having any nexus with the offence charged. The prosecution has failed to prove any linkage of the money recovered from the above accused person with the offence of dacoity. In absence of which it cannot be said that this money was kept by accused person as money looted in dacoity. The evidence in this regard is already discussed in detail in judgment above. It was held in case titled Kanwalpreet Singh @ Kanwal vs. Unknown on 21 April, 2014 in Crl. R. No.3993 of 2013 (O&M) from Hon'ble High Court of Punjab & Haryana that the Court must come to the conclusion that the dishonest receiver of stolen property;
a. is in possession of the same knowing or b. having reason to believe That its possession has been transferred by the person who committed the dacoity.
The relevant para of which are reproduced hereasunder:
SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 32 of 44Before meeting out the arguments raised by the learned counsel for the petitioner, it is apposite to go trough the substantive provision, as enshrined in Section 412, IPC, which reads as under:-
"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 dacoity, 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."
Perusal of the above provision reveals that for securing the conviction under Section 412, IPC, the Court must come to the conclusion that the dishonest receiver of the stolen property should be in possession of the same knowing or having reason to believe that its possession has been transferred by the person, who committed the dacoity. In the case of Narayan Singh v. State of M.P., 1994 SCC (Criminal) 233, Hon'ble the Supreme Court held that merely because certain stolen articles were recovered from the accused, they cannot be held to be dacaoits by invoking the presumption unless there is a recent possession.
In the case in hand, the stolen articles were concededly recovered from the petitioner and his co-accused after about six months of the occurrence. Therefore, the presumption of dacoity cannot be raised. Even otherwise, according to the prosecution version itself, there are no allegation of commission of dacoity.
27.1 It was further held that merely because certain stolen articles were recovered from the accused then the accused cannot be held to be dacait by invoking the presumption unless there is a recent possession. What is recent possession varies from case to case and it was clearly laid down at relevant para no. 5 and 6 in case titled Alisher vs. State of Uttar Pradesh on 28 September, 1973, AIR 1974 SC 1830 in that it would depend on nature of stolen article the frequency in which the article changes hand, the station of life of accused whether humble or that the alleged stolen articles could be easily available to him according to his SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 33 of 44 station of life and as per facts and circumstances of the case. The relevant para are reproduced hereasunder:
5. In appeal before us Mr. Singh on behalf of the appellant has contended that the conviction of the appellant can be maintained under Section 411 Indian Penal Code only if it is shown that he dishonestly received or retained the stolen barrel knowing or having reason to believe the same to be stolen property. He has referred in this context, to illustration (a) to Section 114 of the Indian Evidence Act and submitted that as a period of more than eight months elapsed between the date of dacoity and that of the recovery of the barrel of the gun from the appellant, the presumption in accordance that illustration cannot be drawn against the appellant. In this respect we find that according to illustration (a) to Section 114, the court may presume that a man who is 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. The illustration makes it plain that the time factor has a material bearing and the court must keep it in view before it can draw the presumption in accordance with the illustration. The presumption can be raised if a person is found to be in possession of stolen goods soon after the theft, If however, a long period elapses between the date of the theft and the date on which a person is found to be in possession of the stolen articles, the court would not be justified in drawing the presumption in accordance with the above illustration. The question as to how much period should elapse after the theft in order to rule out the presumption under illustration (a) would depend the nature of the stolen article and the facts of each case. If the stolen article recovered from the accused is one which frequently changes hand, in such a case a much shorter period would be required before the court would be entitled to draw the presumption under the above illustration. On the contrary, if the stolen article found in the possession of the accused is one which does not normally change many hands, the court may draw the presumption under the illustration even after the lapse of a number of months. Again, if the stolen articles recovered from the possession of the accused are some rare books or paintings of a great master or some idol of historical value, the court will be well justified in drawing a presumption against the person found in possession under the above illustration even after the lapse of a period of more than one year. As against that, if the stolen goods of which the accused is found in possession comprise clothes or other articles which are easily available in the market, the court may well decline te draw the presumption after the lapse of a much shorter time. It would be opposite in this context to refer to the following passage from Best on evidence quoted on page 1234 of Basu's law of Evidence, Fifth Edition :
Suppose the Pitt Diamond or the Grown Jewels were stolen, and after the lapse of one or two years, found in the possession of a person in a SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 34 of 44 comparatively humble station of life, who refused to give any account of where he got them, would there be anything harsh or violent in presuming that he had not come by them honestly? But suppose the goods lost were merely a pair of shoes, or a case such as in his station of life it would be natural and proper for the prisoner to wear, and that these were not treated into his possession, until after a few months from the time of the theft, the injustice of making so violent a presumption as to deem him the thief becomes obvious at once.
6. In the present case the article recovered from the appellant was the barrel of gun No. 47942 which had been carried away by the dacoits as a result of dacoity. The barrel bore the number of the gun. Such a barrel of a gun does not normally change many hands. The nature of article in question is such that there was bound to arise suspicion in the mind of the person to whom the article was handed over. No satisfactory explanation has been furnished by the appellant for his possession of the barrel. It cannot in our view be said that the appellant acquired the possession of the barrel innocently. Looking to the peculiar nature of the stolen article recovered from he appellant, we see no cogent ground to interfere with the view of the High Court and the trial court that a presumption can be drawn against the appellant in accordance with illustration (a) to Section 114 of the Indian Evidence Act after the expiry of a period of eight or nine months from the date of dacoity. We would accordingly maintain the conviction of the appellant.
27.2 The money allegedly recovered from the accused person can be easily available and it frequently changes hand. It is not proved by the prosecution that this money could not be available to the accused person in their normal station of life. The identity of currency notes is also not established if they are the same money which was allegedly robbed from the cash van on 07.11.2013 due to which the nexus between the crime and the recovery of money is not established. Hence it cannot be said that the recovery of money from the accused person after about three days from the date of occurrence of crime could be a recovery under Section 412 IPC after commission of dacoity. It is already observed above that it is inconceivable that the accused person would be carrying with them on their person that too all of them together at one single place the alleged SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 35 of 44 amount of recovered currency if related to alleged dacoity. Hence all the accused person charged under Section 412 IPC are acquitted of the said offence.
28. Accused no. 1 Mukesh kumar, accused no. 2 Rohit, accused no. 3 Santosh and accused no. 4 Sanjay @ Ajay were charged for the offence conspiracy under Section 120B IPC for committing offence of dacoity.
However in the entire evidence the prosecution has failed to prove on record that the above accused person had any planning between them or have conspired together. The prosecution had bought on record PW-11 Sh. Rajiv Vashisht from Bharti Airtel Ltd. Who has deposed regarding four mobile number issued by M/s. Tata Teli Services now taken over by M/s. Bharti Airtel. The mobile number were issued in the name of Ms. Chand Kaur, Ms. Upasana, Sh. Surjit Prakash Rauthan, Sh. Mukesh Kumar and the call detail record for the period on 01.08.2013 to 21.11.2013 is also filed. However it is admitted by PW-11 that the CDR in respect of mobile in the name of Ms. Chand Kaur is not filed on record nor it was retrieved from the system. The customer application form is also not filed. The certificate under Section 65B of Evidence Act is also not filed. The prosecution has also not proved on record in evidence during deposition that on which particular dates the respective accused would have talked with each other. Similarly PW-12 has deposed in respect of mobile number issued in the name of Ms. Anjali and one Mr. Sanjay and none of the above witness have deposed that which of the phone number used by which particular accused and had talked with which other accused on various dates. Mere filing of documents before the present Court in exhibit without putting such facts specifically in deposition is not proof of such evidence.
SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 36 of 44The fact on which the prosecution rely must be specifically bought in the evidence and only thereafter the accused would have cross-examined the prosecution witness regarding the facts found relevant by the prosecution. Hence there is no proof of any prior link between accused person to conspire together to commit offence of dacoity on 07.11.2013 before 12:00 noon.
29. The accused no. 1 Mukesh Kumar, accused no. 2 Rohit Kumar, accused no. 3 Santosh Kumar, accused no. 4 Sanjay @ Ajay and accused no. 6 Ravinder Singh @ Ravi have allegedly committed conspiracy under Section 120B of IPC who had entered into conspiracy to commit dacoity on 07.11.2013 before 12:00 noon at Cash Management Service Company, Jhandelwalan, Delhi. It is settled law Section 120B IPC is an independent offence and it is required to be proved separately. It was held in case titled Noor Mohammad Mohd. Yusuf Momin vs. State of Maharashtra on 24 March, 1970, 1971 AIR 885 that criminal conspiracy under Section 120B IPC is an agreement between two or more person to do or cause to be done an illegal act or an act which is not illegal but it is done by illegal means. Mere agreement is an offence even if no step is taken to carry out that agreement. The substantive offence of criminal conspiracy under Section 120B IPC is somewhat wider in amplitude then abatement by conspiracy as contemplated under Section 107 IPC. A conspiracy from its vary nature is generally hatched in secret. It is extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholly disinterested person. But criminal conspiracy can be proved by circumstantial evidence. The proof of conspiracy is largely inferential through the inference which must be found on solid facts. Surrounding circumstances and antecedent and SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 37 of 44 subsequent conduct among other factors constitute relevant material. Reasonable ground are to be shown for believing the existence of criminal conspiracy in that anything done by anyone of them was so done in reference to their common intention which would be relevant for proving both conspiracy and the offence committed pursuant thereto. The relevant para is reproduced hereasunder:
xxxxxxxxSo far as S. 34, I.P.C. is concerned, it embodies the principle of joint liability in the doing of a criminal act, the essence of that liability 'being the existence of a common intention. Participation in the commission of the offence in furtherance of the common intention invites its application. Section 109, I.P.C. on the other hand may be attracted even if the abettor is not present when the offence abetted is committed provided that he has instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to that conspiracy some act or illegal omission takes place or has intentionally aided the commission of an offence by an act or illegal omission. Turning to the charge under s. 120- B, I.P.C. criminal conspiracy was made a substantive offence in 1913 by the introduction of Chapter V-A in the Indian Penal Code. Criminal conspiracy postulates an agreement between two or more persons to do, or cause to be done an illegal act or an act which is not illegal, by illegal means. It differs from other offences in that mere agreement is made an offence even if no step is taken to carry out that agreement. Though there is close association of conspiracy with incitement and abetment the substantive offence of criminal conspiracy is somewhat wider in amplitude than abetment by conspiracy as contemplated by s. 107, I.P.C. A conspiracy from its very nature is generally hatched in secret. It is, therefore, extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholly disinterested, quarters or from utter strangers. But, like other offences, criminal conspiracy can be proved by circumstantial evidence. Indeed, in most cases proof of conspiracy is largely inferential though the inference, must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material. In fact because of the difficulties in having direct evidence of criminal conspiracy, once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then anything done by anyone of them in reference to their common intention after the same is entertained becomes, according to the law of evidence, relevant for proving both conspiracy and the offences committed pursuant thereto. Xxxxxxxxxx SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 38 of 44 29.1 It was held in case titled Ram Sharan Chaturvedi vs. The State of Madhya Pradesh in Criminal Appeal No. 1066 of 2010; August 25, 2022 that the agreement to commit criminal conspiracy must surface in evidence through some physical manifestation. A few bits here and a few bits there cannot be held to be adequate for connecting the accused with the crime.
The express agreement need not to be proved and admission of transmission of thoughts sharing the unlawful act is not sufficient. The prosecution must prove evidence of explicit acts for conduct on the part of the accused manifesting conscious and apparent concurrence of a common design beyond all reasonable doubts. The Court has to be watchful and avoid the danger of allowing the suspicion to take the face of legal proof. Though sometimes it is a short fact between moral certainity and a legal proof. There is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. The each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstance so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. An implied agreement must manifest upon relying on principles established in the cases of circumstantial evidence. The evidence of transmission of thoughts sharing the unlawful act is not sufficient. The cumulative effect of the proved circumstances should be taken into account in determining the guilt of accused rather than adopting an isolated approach. The relevant para of the citation are reproduced hereasunder:
22. The principal ingredient of the offence of criminal conspiracy under Section 120B of the IPC is an agreement to commit an offence. Such an agreement must be proved through direct or circumstantial evidence.
Court has to necessarily ascertain whether there was an agreement SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 39 of 44 between the Appellant and A-1 and A-2. In the decision of State of Kerala v. P. Sugathan and Anr.2, this Court noted that an agreement forms the core of the offence of conspiracy, and it must surface in evidence through some physical manifestation:
"12. ...As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. ...A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy...
13. ...The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient..."
(emphasis supplied)
23. The charge of conspiracy alleged by the prosecution against the Appellant must evidence explicit acts or conduct on his part, manifesting conscious and apparent concurrence of a common design with A-1 and A-2. Iof the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. (Jaharlal Das v. State of Orissa (1991) 3 SCC 27)" (emphasis supplied)
24. In accepting the story of the prosecution, the Trial Court, as well as the High Court, proceeded on the basis of mere suspicion against the Appellant, which is precisely what this Court in Tanviben Pankajkumar Divetia v. State of Gujarat, had cautioned against:
"45. The principle for basing a conviction on the basis of circumstantial evidences has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 40 of 44 the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It haof the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. (Jaharlal Das v. State of Orissa (1991) 3 SCC 27)"
(emphasis supplied)
25. It is not necessary that there must be a clear, categorical and express agreement between the accused. However, an implied agreement must manifest upon relying on principles established in the cases of circumstantial evidence. Accordingly, in the majority opinion of Ram Narayan Popli v. CBI4 , this Court had held:
"354. ... For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient..."
26. In view of the clear enunciation of law on the criminal conspiracy by this Court, we find that the prosecution has failed to produce any evidence whatsoever to satisfy the Court that there was a prior meeting of minds between the Appellant and A-1 and A-2. There is no physical manifestation of such a concurrence extractable from surrounding circumstances, declarations, or the conduct of the Appellant. The evidence is shorn of even a passive acknowledgment of conspiracy of the Appellant alone heralding a clear and conscientious participation of the Appellant in the conspiracy. As noted above, this Court has cautioned against replacing mere suspicion with the legal requirement of proof of agreement.
27. For the reasons stated above we are of the opinion that the prosecution failed to establish the circumstances in which the Appellant, being the custodian of only one set of the keys for the dual lock system functional in the Bank, could alone be made responsible for providing access to the strong room and the safe in the Bank. We are also of the clear opinion that the prosecution failed to establish the existence of any agreement between the Appellant, A-1 and A-2, which is quintessential for a charge under Section 120B of the IPC. In the absence of such an agreement, even by inference through circumstantial evidence, the Appellant is entitled to be acquitted of the charge of criminal conspiracy.n State (NCT of Delhi) v. Navjot Sandhu, this Court held:
SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 41 of 44"101. One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution." (emphasis supplied) 29.2 In the present case the prosecution has failed to prove the identity of accused person as to which of the accused had pointed out pistol on the driver or on PW-1. Further the witnesses have deposed contradictorily about variously pointing out of pistol by the accused person. Though some of the amount of cash was recovered at the spot but the said amount was still alleged to be robbed by the accused person and no charge is framed against the accused person that there was attempt to rob regarding the amount left at the spot . Which of the accused person had stopped Honda City car in front of cash van is also not proved. The alleged amount of money recovered from the accused person is not proved to have nexus with the amount robbed from the cash van. Hence the prosecution has failed to prove an agreement between the accused person to commit criminal conspiracy. The prosecution has failed to prove that the accused person have come together to pursue the unlawful object. The call details, if any, having connection with the accused person whether prior to commission of alleged dacoity or after that is also not proved specifically in evidence against the accused person. Hence there is absence of sufficient incriminating circumstance against the accused person to establish charge under Section 120B IPC and hypothesis of guilt cannot be possibly drawn against accused no. 1 Mukesh Kumar, accused no. 2 Rohit, accused no. 3 Santosh and accused no. 4 Sanjay. Under the cumulative SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 42 of 44 effect of the circumstances of the case it cannot be held that the accused person have committed criminal conspiracy under Section 120B IPC and the accused charged under Section 120B IPC are acquitted of the said offence.
30. It was further held in case titled Manoj Kumar Soni vs. State of Madhya Pradesh 2023 SCC OnLine SC 984 from Hon'ble Supreme Court of India in Criminal Appeal No. 1030/2023 hereasunder:
Conviction of Kallu under Section 120-B, IPC
39. It is intriguing that among all five accused persons, only Kallu has been convicted for criminal conspiracy under Section 120-B, IPC. At this stage, we cannot help but wonder : can a single individual conspire with oneself? We cannot but disagree. It logically follows that one person alone can never be held guilty of criminal conspiracy because one cannot conspire with oneself. As per Black's Law Dictionary (8th Edn), 'conspiracy' is an "agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement's objective, and action or conduct that furthers the agreement". The wordings of Section 120-A, IPC make it abundantly clear--the offence of criminal conspiracy is committed only when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means.
The position in English law too is well-settled. In The King v. Plummer10, the King's Bench, speaking through Lord Justice Bruce, held:
It logically follows from the nature of the offence of conspiracy that, where two or more persons are charged in the same indictment with conspiracy with one another, and the indictment contains no charge of their conspiring with other persons not named in the indictment, then, if all but one of the persons named in the indictment are acquitted, no valid judgment can be passed upon the one remaining person. (page
343)
40. In I.G. Singleton v. King-Emperor11, the Calcutta High Court further clarified the law related to criminal conspiracy:
The rule of English law that is now well settled is that where two persons are indicted for conspiring together and they are tried together, both must be acquitted, or both convicted. (page 265)
41. The decision of this Court in Topandas (supra) affirmed the aforesaid position and held:SC No. 27784/2016 FIR No. 266/2013 State Vs. Mukesh & Ors. Page 43 of 44
14. ... on the charge as it was framed against the Accused 1, 2, 3 and 4 in this case, the Accused 1 could not be convicted of the offence under Section 120-B of the Penal Code, 1860 when his alleged co-conspirators Accused 2, 3 and 4 were acquitted of that offence.
42. Having regard to the position of law as aforesaid, the conviction of Kallu under Section 120-B, IPC stands completely vitiated because of the simple reason that one cannot alone conspire. There is no evidence to even remotely suggest that there existed any agreement between Kallu and the co-accused while none of the others, except Kallu, has been convicted for criminal conspiracy.
31. In view of the discussion held above it is found that the prosecution has failed to prove the commission of offence under Section 395/397/412/120B IPC & 25/54/59 of Arms Act against the accused no. 1 Mukesh Kumar, accused no. 2 Rohit, accused no. 3 Santosh and accused no. 4 Sanjay @ Ajay. Hence above accused are acquitted of the offence charged against them and it is held that prosecution has failed to prove the charge levelled against the accused person discussed above which are four in number. Accordingly, accused namely Mukesh Kumar, Rohit, Santosh and Sanjay @ Ajay stands acquitted. Their earlier personal bond are cancelled and surety are discharged and documents, if any, be returned to the surety and endorsement on security documents is allowed to be de-
endorsed. In terms of Section 437A Cr. PC, accused have furnished their bail bonds as directed which will be in force for period of six months from the date of this judgment. Case property be confiscated to the State.
File be consigned to Record Room.
Announced in the open Court
Digitally signed by
on 18.11.2023. JOGINDER JOGINDER PRAKASH
PRAKASH NAHAR
Date: 2023.11.18 15:42:04
NAHAR +0530
(JOGINDER PRAKASH NAHAR)
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL/TIS HAZARI COURT
DELHI
SC No. 27784/2016
FIR No. 266/2013
State Vs. Mukesh & Ors. Page 44 of 44