Delhi District Court
Sc No. 28592/2016 State vs Mohd. Nazim & Others Page No.1 Of 26 on 19 February, 2021
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IN THE COURT OF SH. NAVEEN KUMAR KASHYAP ADDITIONAL SESSIONS
JUDGE-04: CENTRAL: TIS HAZARI COURTS: DELHI
(Present case is taken on most priority basis as same is the oldest matter pending in this
Court and is more than 10 years old matter.)
Sessions Case No.:28592/2016
CNR NO.-.:DLCT01-000397-2009
STATE
Vs.
1. Mohd. Nazim
S/o Mohd. Sabir
R/o H.No. 9/5, near
Sandhya Public School,
Transformer Wali Gali,
Chauhan Bangar, Seelampur,
Delhi.
2. Shakir
S/o Shakeel
R/o Mohalla Nazu Khan,
PS Kotwali Distt. Rampur
UP
Second Add: House of Gaffar,
Gali No.8, Jafrabad, Seelampur
Delhi
3. Kasim
S/o Mohd. Sabir
R/o H.No. 9/5, Near Sandhya
Public School,Transformer Wali Gali,
Chauhan Bangar, Seelampur,
Delhi
4. Mohd. Yakoob
S/o Samshuddin
R/o H.No. 786, Gali No.2 Kabir Nagar,
SC No. 28592/2016 State Vs Mohd. Nazim & others Page no.1 of 26
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Shahdara Delhi
Second Add: E-26, Nehru Market,
New Seelampur, New Delhi
5. Sajid @ Babla
S/o Mohd. Yunus Khan
R/o H.No. K-166/66,
Gautam Vihar Near Khaddewali Masjid
New Usmanpur Delhi
6. Imran
S/o Kadar Khan @ Salim
R/o: U-32, Gali No.2, Arvind
Mohalla Uttam Vihar, New Delhi
Second Add: K-485, Gali No.7/4,
Gautam Vihar Delhi
7. Raju @ Rijwan @ Kale
S/o Liyakat Ali
R/o L-80, K Block, Gautam Vihar
New Usmanpur Delhi
Second Add: K-476, Gali no.4, Near
Khaddewali Masjid New Usmanpur Delhi
Case arising out of:-
FIR No. : 275/2009
Police Station : Burari
Under Section : 395, 397, 365, 414, 120B IPC r/w 34 IPC
Date of Institution : 05/02/2010
Date on which arguments concluded : 04/02/2021
Date of Judgment : 19/02/2021
J U D G M E N T:-
The Facts:-
1. In nutshell, the case of the prosecution is that on 25/08/2009 complainant Mr. Ramdev (PW5) alongwith one Arjun Singh (PW10) was going in his vehicle from Khari SC No. 28592/2016 State Vs Mohd. Nazim & others Page no.2 of 26 :3: Baoli Delhi with 5 ton of almonds seeds. That at about 11:30 PM, accused No.1 to 4 & 6, 7 committed a dacoity and even injured complainant with a sharp weapon and fled away with the vehicle of the complainant with loaded almonds seeds. That accused No. 5 assisted the other accused person in concealment of such goods / almonds.
In this case initially only accused No-1 and 2 could be arrested .As such main chargsheet was filed qua them only. Later on, from time to time 5 more accused,.i.e.accused No-3 to 7 , were arrested and as many as 3 supplementary chargesheets were filed.
As such, ultimately based on main chargesheet and three supplementary chargesheets the prosecution filed the present case against the seven above mentioned ac- cused persons for offences u/s 395, 397, 365, 414, 201, 120B IPC.
2. Arguments of charge were heard by my learned predecessor. As various ac- cused were arrested from time to time , accordingly on 23/04/2010 charges were framed against accused No.1, 2, 3, & 5 for offence u/s 365 r/w 34 IPC as well as for offence u/s 395 IPC as well as 397 IPC.
Further, on 31/07/2010 charges were framed against accused No.1, 2, 3, & 5 for offence u/s 120B IPC. Further, on 31/07/2010 itself charges were framed against accused No.4 for offence u/s 120B IPC as well as u/s 414 IPC. Thereafter, vide order dated 24/02/2011 on arrest of accused No. 6 & 7 charges were framed against accused No.6 & 7 for offence u/s 365 r/w 34 IPC as well as for offence u/s 395 IPC as well as 397 IPC.
All the seven accused pleaded not guilty and claimed trial for all such charges against them.
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3. In order to establish the guilt of accused persons, the prosecution examined as many as 34 witnesses, including the complainant/PW-5 and his colleague/helper Sh.Arjun Singh PW10, as well as owner of TSR used in committing the offence as PW6 and his son as PW7. Apart from such witnesses, Prosecution examined IOs of the case, the police officials who accompanied the various IOs during investigation, witnesses from transport department, from mobile companies and doctors regarding injury to the complainant.
4. Statements of all the seven accused persons under section 313 Cr.PC were recorded. In nutshell, it is the defence of all such accused persons that they have not commit- ted any offence and they are falsely implicated in the present case. It is further claimed that they have not made any disclosure statement to the police. Further ,all the accused stated in their statement u/s 313 Cr.PC that they wanted to lead evidence in defence. But on perusal of record, it is reflected that they did not lead any defence evidence at all.
5. It is argued by learned Addl.PP for the State that ingredients of all the offences for which such accused No.1 to 7 are charged with are proved beyond reasonable doubt. It is further argued that conspiracy is often hatched in darkness. As such, there can hardly be any direct evidence regarding the same. It is further argued that in any case there are ample evi- dence on record including the location / call detail record of accused 4-5 which proved be- yond reasonable doubt that accused No.4 Yakoob was in active conspiracy with the other ac- cused in concealing / disposing off the stolen case property in question. As such, it is argued that offence of conspiracy as well as under section 414 IPC is proved against accused No.4.
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6. On the other hand, it is argued on behalf of accused No.4 that such accused No.4 Yakoob is falsely implicated in the present case. He has nothing to do with the present case or the offences in question. It is further stated that in any case although certain allega- tions are made in the charge-sheet against accused No.4 Yakoob. But prosecution failed to lead cogent evidence to prove the same. It is further argued that even the alleged witness to offence u/s 414 IPC namely Sh. Bablu is not examined at all during trial. It is further argued that law is crystal clear regarding case based on circumstantial evidence, which is the best case of prosecution at present. For such type of cases , circumstances must be of a definite tendency unerringly pointing towards guilt of the accused. It is further argued that alleged disclosure statement by the various accused persons are not legally tenable and cannot be read against them. It is further stated that apart from such disclosure statement, there is no in- criminating evidence against the present accused persons. As such, it is prayed that he be ac- quitted of all the charges in the present case.
7. Learned counsel for rest of the accused persons adopted the arguments ad- dressed by learned counsel for accused No.4 Yakoob. He further argued that apart from dis- closure statements, which is not legally tenable , there is no incriminating evidence against any of accused persons. It is further argued that not even charge is framed regarding alleged conspiracy, as far as accused No. 6 & 7 are concerned. It is further argued that accused per- sons are falsely implicated in order to solve the case. It is further argued that alleged case property or weapon of offence is never recovered in the present case, which also indicates SC No. 28592/2016 State Vs Mohd. Nazim & others Page no.5 of 26 :6: that accused persons are falsely implicated in the present case. As such, it is prayed that all the accused be acquitted of all the charges in the present case.
The Findings:
8. Before proceeding further, as per mandate laid down under Section 354 (1)
(b)Cr.PC following are the points of determination which are necessary to consider in order to arrive at a conclusion:
(i) Whether accused No.1 to 5 entered into a conspiracy for concealment, dis- posal or making away of the stolen case property in question? (120B IPC)
(ii) Whether such accused No. 5 in criminal conspiracy with accused No.1 to 4 received consignment of case property in question having knowledge that same is stolen property and looted in robbery in question? (414 IPC)
(iii) Whether the accused No.1 to 4 alongwith accused No. 6 & 7 in commit-
ting such robbery in question and present and aiding such commission of rob- bery in question, any of them put the complainant / PW5 and PW10 in fear of instant death or hurt or instant wrongful restrain, and thereby induced the complainant to deliver case property (or in the alternative in order to commit such robbery or while committing such robbery or in carrying away property obtained by such robbery, such accused persons or any of them towards that and voluntarily caused or attempt to cause any person death or hurt or wrong- ful restrain? (395 IPC).
(iv) Whether the accused No.1 to 4, 6 & 7 or anyone or more of them, at the time of committing robbery or dacoity used any deadly weapon, or caused greivious hurt or attempted to cause grievous hurt or death? (397 IPC).
(v) Whether the accused No.1 to 4, 6 & 7 or anyone or more of them, ab- ducted the complainant and / or PW10 with intend to cause that such com- plainant and / or PW10 be secretly and wrongfully confined.
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9. At this stage before proceeding further it may be noted that it is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file be- yond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of crim- inal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused.
Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
10. At this stage, it would be appropriate to note that section 120B of IPC is the provision which provides for punishment for criminal conspiracy.
Definition of criminal conspiracy given in section 120A reads as follows:
"120A- When two or more persons agree to do or cause to be done.-
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof".
11. The essence of a criminal conspiracy is the unlawful combination and SC No. 28592/2016 State Vs Mohd. Nazim & others Page no.7 of 26 :8: ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence.
Further it is settled law that in the case of conspiracy there cannot be any direct evidence. Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing illegal means an act which itself may not be illegal.
Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.
The inferences are normally deduced from acts of parties in pursuance of a purpose in common between the conspirators. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an SC No. 28592/2016 State Vs Mohd. Nazim & others Page no.8 of 26 :9: agreement between two or more persons to commit an offence.
It may further be noted at this stage that there is no difference between the mode of proof of the offence of conspiracy and that of any other offence, it can be established by direct or circumstantial evidence. It may further be noted the circumstances relied for the purposes of drawing an inference should be prior in time than the actual commission of the offence in furtherance of the alleged conspiracy.
12. In the present case, on analysis of the record of the case, it can be seen that as per the chargesheet, it is the case of the prosecution is that Mr. Ramdev (PW5) gave a state- ment on 26/08/2009 that he is a driver of one Vikas Bajaj working on vehicle Eicher Canter bearing No. HR 45 9056. That on 25/08/2009 he alongwith one Arjun Singh (PW10) was going in his vehicle from Khari Baoli Delhi in such vehicle which was loaded with 5 ton of almonds seeds. He was going towards Kundali Haryana. That at about 11:30 PM, a TSR No. DL 1RJ 4132 in which four persons were present and whom he can identify came and stopped their vehicle. They forcefully took out such complainant PW5 alongwith PW10 from the vehicle and one of them hit the complainant on his head with a sharp article as a result of which blood started oozing out from his head. That such persons forcefully took them in such TSR. Such persons also took control of such Eicher Canter which was loaded with al- monds seeds. Further such persons forcefully took out Rs. 2,500/- from the pocket of PW5 / complainant, his mobile phone. It is further stated that such four persons took them in TSR with intention to rob them. He further complained that such persons ran away with his vehi-
SC No. 28592/2016 State Vs Mohd. Nazim & others Page no.9 of 26 : 10 : cle loaded with such almonds seeds while leaving behind the complainant and PW10 / Arjun at Indirapuri Police Post, U.P. That complainant was admitted in GTB Hospital by UP police.
Based on such statement, initially, a case u/s 394, 397 r/w section 34 IPC was registered. That no clue of the accused persons could be found despite search made. But later on, on 27/08/2009 the truck / Eicher Canter of the complainant was found in an abandoned position in Tahir Pur Village on the main road of Nand Nagari. Same was taken into custody by police officer. That details of TSR No. DL 1 RJ 4132 used in committing the crime was taken and it was found in the ownership of one Bharat Ram which was financed by one Bal- ton Finance Pvt. Ltd. The manager Mr. Girish Bahuguna further disclosed during investiga- tion that same was later got financed through Surjeet Auto deals, Bara Hindu Rao.
Later on Sardar Manmohan Singh, owner of such Surjeet Auto deals that he purchased such auto from previous owner Bharat Ram and he has sold the same to one Anis (PW6) on finance but vehicle is not yet transferred officially in the name of such Anis.
As such, such Anis was contacted and he told that such TSR is often taken on rent by one boy by the name of Nazim and on 25/08/2009 also such Nazim took such TSR. Such Anis (PW6) further disclosed that further detail can be given by his son Hashim (PW7). As such, investigation was made from such Hashim and he told that such TSR was taken on rent in the evening of 25/08/2009 at about 7:00 PM by such Nazim and Shakir.
As such, on 31/08/2009 , that is after 6 days of the incident in question , the Ist IO of the case arrested such Mohd. Nazim / accused No.1 .Two mobile phones bearing No. 9811647033 and 9211994211 were seized from him and .On detail interrogation, he SC No. 28592/2016 State Vs Mohd. Nazim & others Page no.10 of 26 : 11 : made a disclosure statement in which such accused No.1 / Mohd. Nazim confessed to police that in the evening of 25/08/2009, he alongwith Shakir / accused No.2, Imran / accused No.6, Sajid @ Babla / accused No.5, Harun (not traced), Raju @ Kale @ Rizwan / accused No.7 and Kasim / accused No.3 ,gathered near Ghora Chowk. That he / accused No.1 Mohd. Nazim and accused No.7 Raju @ Kale @ Rizwan were riding on the motorcycle of accused No.7 Raju @ Kale @ Rizwan ,whereas accused No.6, 3, 2, 5 and such Harun were riding in the TSR in question. That they seven accused persons committed dacoity in question. As per the prosecution , Accused No.1 further confessed to police the trucked in question loaded with almonds seed was unloaded at the house of accused No.4 / Yakoob at Kabir Nagar, Shahdra, Delhi.
As such, house of such accused No.4 / Mohd. Yakoob was searched but the robbed goods were not found there. It is further claimed by the prosecution that one Bablu (who is not examined as a witness by the prosecution as per the record) during investigation told the IO that at night he has witnessed unloading of goods at the house of co-accused Mohd. Yakoob.
Accused No.1 Nazim refused his TIP proceedings. But when IO was taking such accused No.1 Nazim outside the Court, then complainant reached the premises and in- stantly he identified such accused No.1 as one of the offender in the present case.
Later, section 365 IPC was also added during investigation. It is further claimed by the prosecution that even Arjun Singh / PW10 identified such accused No.1 Mohd. Nazim.
SC No. 28592/2016 State Vs Mohd. Nazim & others Page no.11 of 26 : 12 : It is further claimed by prosecution that later on ,SI Bhupender Kumar Singh received intimation from PS Loni Ghaziabad, UP that one co-accused Shakir / accused No.2 is arrested in an Arms Act case at such PS Loni . That such accused Shakir also confessed his involvement in present matter in his disclosure statement to police. That he also refused for TIP proceedings. It is further claimed by prosecution that during investigation complainant Ram Dev and his colleague Arjun Singh identified such Shakir also as one of the offender in- volved in the present offence against them.
It is further the case of prosecution that at the instance of such accused No.1 Nazim, TSR in question was got recovered from under the flyover of Shahdra in front of Metro Station. That one blood stained shirt was also found from such TSR.
It is further stated in the main chargesheet that despite efforts made at that time, whereabouts of other accused could not be traced and appropriate proceedings against them was taken and investigation qua them was still pending. It is further stated that as per the report on the MLC of complainant Ramdev, the doctor opined the injury as simple.
Accordingly, main chargesheet dated 27/11/2009 was filed qua accused No.1 Mohd. Nazim and accused No.2 Shakir, regarding offence u/s 395, 397, and 365 IPC.
Thereafter first supplementary chargesheet dated 18/03/2010 was filed by IO Inspector J.S. Mishra. In such supplementary chargesheet, it is stated that absconding co-ac- cused Kasim / accused No.3 surrendered before Court on 21/12/2009. As such, he was for- mally arrested. That such accused Shakir also confessed his involvement in present matter in his disclosure statement to police. That he also refused for TIP proceedings. It is further SC No. 28592/2016 State Vs Mohd. Nazim & others Page no.12 of 26 : 13 : claimed by prosecution that during investigation complainant Ram Dev and his colleague Ar- jun Singh identified such Kasim / accused No.3 also as one of the offender involved in the present offence against them.
Further, it is claimed by prosecution that a secret information was received that co-accused Sajid / accused No.5 is in JC at Tihar Jail in some other criminal case. As such, he was formally arrested in present case. That such accused Sajid @ Babla / accused No.5 also confessed his involvement in present matter in his disclosure statement to police. That he consented for his TIP proceedings. That in his TIP on 25/01/2010 complainant Ramdev correctly identified him.
It is further claimed by prosecution that during investigation, mobile phone call details of co-accused Yakoob / accused No.4 bearing No. 9999042188 and co-accused No.5 / Sajid bearing mobile No. 9899427272 were obtained as well as ownership thereof was also obtained. As per record, one Feeroj Alam was found owner of such mobile No. 9999042188. Such Feeroj Alam / PW23 stated that he gave his identity cards to accused No.4 / Yakoob and such accused No.4 on the basis of such documents of PW23 obtained a mobile connection for himself/accused No-4.
Further, one Savej Khan was found owner of other mobile phone No. 9899427272 ,but despite efforts made such Savej Khan could not be traced. But it was found that such mobile number was taken on the documents of Khan telecom centre, whose owner is the brother of such accused No.5 / Sajid.
SC No. 28592/2016 State Vs Mohd. Nazim & others Page no.13 of 26 : 14 : On analysis of such two mobile number it was found that location of mobile No. 9899427272 was consistent with robbed vehicle in question from Khari Baoli till Burari Nathu pura. Further from such mobile No.9899427272, there were repeated calls on other mobile phone of co-accused No.4, 9999042188. Further, location of these two mobile phone was also found together at Shahdra where robbed goods were unloaded. Further, location of these two mobile number was also found at the place where robbed truck was found in an abandoned position later on.
As such, it is stated in such supplementary chargesheet that there are sufficient material to chargesheet accused No.3, 4 & 5 for the offences u/s 395, 397 and 365 IPC. In such supplementary chargesheet dated 18/03/2010, it was further stated that remaining ac- cused could not be arrested and efforts are still on to apprehend them and supplementary chargesheet would be filed later on.
Further, second supplementary chargesheet dated 09/06/2010 was filed by In- spector J.S. Mishra only. In such second supplementary chargesheet, it is further stated that later on, on 27/03/2010 co-accused No.4 Yakoob was arrested by Police Station Jamia Nagar and he was formally arrested in the present case. At his instance, a mobile number with IMEI No. 359983012533521 was found from his house. That such accused No.4 did not cooperate with the investigation. That intentionally he did not get recovered the robbed goods. It was concluded, based on earlier investigation as well as further investigation, that such accused No.4 is receiver of robbed case property in question. That after receiving such robbed case property in question, he intentionally hided the same. That in connivance with other co-ac-
SC No. 28592/2016 State Vs Mohd. Nazim & others Page no.14 of 26 : 15 : cused in this case, he is fully involved in the present offences. As such, section 414 r/w 120B IPC were added in the present case. As such, such supplementary chargesheet dated 09/06/2010 u/s 395, 397, 365, 414, r/w 120B IPC was filed against the accused persons. It was further stated that remaining accused could not be arrested and efforts are still on to ap- prehend them and supplementary chargesheet would be filed later on.
Thereafter, a third supplementary charghsheet dated 28/12/2010 was filed by Inspector Shiv Dayal. In such third supplementary chargesheet, it is stated that during further investigation co-accused No.6 Imran and co-accused No.7 Raju @ Rizwan @ Kale were ar- rested by special cell on 08/11/2010. Both the accused refused to participate in TIP. That such accused No.6 & 7 also confessed their involvement in present matter in their disclosure statements to police. It is further claimed by prosecution that they further disclosed that they have destroyed knife used to cause injury to the complainant, in order to destroy the evidence of the case. As such, section 201 IPC was added in this case. It is further claimed by prosecu- tion that looted almonds were given to co-accused No.4 Yakoob who misappropriated the same and did not give such co-accused their share. That they also refused for TIP proceed- ings (Thus as far as these two accused No.6 & 7 are concerned, it is not even the claim of prosecution that they were identified by the complainant / PW5 or by PW10 during the course of investigation).
It is further stated in such 3rd supplementary chargesheet that the efforts were made to search the remaining accused Arun @ Harun who was part of the gang who commit-
SC No. 28592/2016 State Vs Mohd. Nazim & others Page no.15 of 26 : 16 : ted the offence in question but his name and address was not complete as such, he could not traced.
13. Further at this stage, it would be fruitful to note that as far as the disclosure statements of accused persons are concerned, it is to be seen how much of such alleged dis- closure statement can be read in evidence, if so at all. Admittedly accused persons made their disclosure statement while in police custody and that too to a police officer. Section 25 and 26 of Indian Evidence Act , which have stood the test of the time for about one & half cen- tury, bars reading of any such statement given by accused person to the police or while in po- lice custody. But section 27 of Indian Evidence Act creates an exception to section 25 and 26 of Indian Indian Evidence Act provided following two conditions are fulfilled:
i) if and when certain facts are deposed to as discovered in consequences of information received from an accused person in police custody, and
ii) if the information relates to the facts discovered.
14. But the court must be cautious of the possibility of 'planted discovery' in order to bring the case within the ambit of section 27 and to by-pass the salutary main provisions of section 25 and 26 of Indian Evidence Act. The court must scrutinize the evidence on record keeping such precaution at the back of the mind. In order to utilize the provisions of section 27 against an accused person an ordinary recovery, if so at all, can not be turned into a discovery. The fact must be the consequence and the information the cause of its discovery. The information and the fact must be connected with each other as cause and effect and not vice verse.
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15. As far as present case is concerned , nothing is recovered at the instance of any of the accused person. Thus nothing is covered/saved under section 27 Evidence Act.
16. Further on a closure scrutiny of prosecution case, it can be seen that none of the accused persons were arrested on the spot. In fact, as per the prosecution case itself, its only later on, a clue was developed based on the statement of complainant / PW5 to the po- lice on the next day that vehicle used in commission of such offence i.e. TSR ,number of which such witness PW5 could not remember at the time of his examination in chief in Court. But he stated number of such TSR as DL 1 RJ 4132 in his statement to police on 26/08/2009 i.e. the next date of incident when his memory was fresh.
In this background of the facts of the case , it can be seen that case of the pros- ecution is that accused No.4 Yakoob entered into a criminal conspiracy to commit theft of goods in question and thereafter for concealment and disposal of the same.
It is true, as already noted above, that for offence of conspiracy, there is sel- dom any direct evidence and it is a matter of inference most of the time. But at the same time having noted so, it is also settled law that in case of conviction is to be based solely on cir- cumstantial evidence, then parameters are even more stringent. In this regard, it may be noted at this stage that circumstantial evidence, in order to be relied on, must satisfy the fol- lowing tests:-
(i) Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.
ii) Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused.
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iii) The circumstances, taken cumulatively should form a chain so complete that there is no escape from conclusion that within all human probability the crime was committed by the accused and none else.
iv) The circumstantial evidence in order to sustain conviction must be com plete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be in consistent with his innocence- in other words, the circumstances should exclude every possible hypothesis except the one to be proved.
17. In this background of legal position, in present case it can be seen that on bare perusal of statement of PW5, PW6, PW7 & PW10, it is clear that they deposed nothing about the criminal conspiracy including conspiracy regarding acts amounting to offence u/s 414 IPC. But as per the police witnesses including IOs of the case , PW11 Israr Babu Nodal officer Vodafone and PW23 Firoj Alam, it is proved on record that mobile No. 9999042188 is in the name of Firoj Alam who is examined as PW23. Further such PW23 deposed that ac- cused No.4 Yakoob whom he correctly identified in Court got issued such mobile number and used the same on the documents of PW23. Thus, the best case of the prosecution is that such mobile phone was in possession and use of accused No.4. That location of such mobile number was corresponding with the location of another mobile No. 9899427272. Thus, there may be possibility that such accused No.4 was coordinating with other accused persons in disposing of / concealing the robbed case property / goods in question. But the standard of proof required in a criminal case is not on the standard of possibility ,instead prosecution is supposed to prove the same beyond reasonable doubt, particularly, in cases based of circum-
SC No. 28592/2016 State Vs Mohd. Nazim & others Page no.18 of 26 : 19 : stantial evidence. It may further be noted that in the chargesheet, it is mentioned by the pros- ecution that one Bablu saw unloading of such stolen goods at the house of accused No.4.But on perusal of evidence, it can be seen that the prosecution did not examine such witness. Thus, what is alleged in the charge-sheet, is not proved on record during evidence. Further, it may also be noted that such goods were never recovered at the instance of or from the pos- session of any of such accused persons, including accused No.4. Thus, the possibility that he did not receive such goods at all ,cannot be ruled out at all. It may further be noted that in the chargesheet a case of prosecution is mainly based on only disclosure statements of accused persons.
As such, it is held that prosecution failed to prove that there was any conspir- acy alongwith accused No.4 including for the offence u/s 414 IPC. The accused persons are given benefit of doubt as far as section 120B r/w section 414 IPC is concerned. Further, the prosecution failed to prove that there was any conspiracy among the accused persons other than accused No.4 for committing the robbery in question.
18. But at this stage, it may be noted that section 34 IPC states that when an act is done by several persons in furtherance of common intentions of all, each of such person is li- able in the same manner as if it was done by him alone.
19. In this case, PW10 is Arjun Singh.He was helper with the complainant in the truck / vehicle in question which was robbed. On a bare perusal of his evidence in Court, it is clear that although, he is not disputing the incident in question including that four persons came and forcibly dragged him and PW5 and one of them also hitted PW5 on his head with SC No. 28592/2016 State Vs Mohd. Nazim & others Page no.19 of 26 : 20 : some sharp edged object and as a result PW5 started bleeding. But, he further deposed that he cannot identify the offender present in the Court, as it was night time when the incident occurred and further because he was very much terrified by the whole incident and did not have any good look at the offenders. As he did not support the case of prosecution on the identification of accused persons, such witness was allowed to be cross examined by prose- cution on the point of identification. During in his such cross examination also, he stated that he cannot say whether boys shown in the Police Station namely Mohd. Nazim is one of the offender. He further denied that he went to Police Station with PW5 on 11/09/2009 to inquire about the present case where he saw accused No.2 Shakir. Thus such witness did not support the prosecution on the identity of any of the accused persons.
20. But, in the present case, PW5 supported the prosecution on all material partic- ulars. In his examination chief it is categorically deposed by PW5 / victim / complainant that 4-5 boys in TSR immediately came out on both sides of their vehicle No. HR 45 9056 and one of the boys hit him with knife (but at the time of registration of FIR on next day ,in his statement to police he stated that he was hit by a sharp object) and forcefully brought him down from the truck / tempo. Some of the boys also hit the helper / conductor Arjun Singh/PW-10 and brought him down. Then their truck was driven by one of the offenders. He further deposed that they made him to sit in TSR and they pointed their knives at him and PW10. Further, PW5 deposed that he has identified accused Sajid, Mohd. Yakoob, Mohd. Nazim and Shakir as the offender who are present in Court and who have committed the of- fence in question. He further deposed that he saw their faces very clearly at the time of inci-
SC No. 28592/2016 State Vs Mohd. Nazim & others Page no.20 of 26 : 21 : dent which was also reflected in the big mirror in front of TSR. He further deposed that after 4-5 days of incident, he identified accused Mohd. Nazim as one of the offender in Police Sta- tion. He further deposed that in TIP he identified accused Shakir. He further deposed that af- ter 15-20 days of incident he further identified one of the offender from the photographs shown to him by the police.
But permission was sought by learned Addl.PP to cross examine such witness as his statement was not in consonance with the statement made to the police u/s 161 Cr.PC. During such cross examination by learned Addl.PP, such witness further deposed that he wrongly identified Mohd. Yakoob in Court today. He further deposed that it might be correct that, it was accused Kasim who was present in Court who participated in the offence in ques- tion with three other accused persons ,namely, Accused No.1 Nazim and accused No.2 Shakir and accused No.5 Sajid on the day of incident. He further admitted that he wrongly identified accused Yakoob instead of Kasim due to lapse of his memory and time.
In his cross examination by learned counsel for accused persons, he admitted that certain discrepancies were pointed out in his examination in chief in Court viz-a-viz his statement to police u/s 161 Cr.PC.
Thus, in nutshell, as far as accused No.1,2 & 5 are concerned, they are cor- rectly identified by such complainant / PW5 in Court also. But, he wrongly identified ac- cused No.4 Yakoob in place of accused No.3 Kasim during his examination in chief in Court.
Further, PW6 alongwith PW7 deposed that it is accused No.1 alongwith ac- cused No.2 who hired their TSR in question in the evening at about 7:00 PM of 25/08/2009.
SC No. 28592/2016 State Vs Mohd. Nazim & others Page no.21 of 26 : 22 : Thus, on overall reading of evidence on record, it can be concluded that it is proved by the prosecution that accused No.1,2 & 5 with their common intention robbed the vehicle loaded with almonds seed from the possession of complainant / PW5. Further, PW5 correctly identified them in Court ,apart from describing in detail whole incident in question. But in all fairness, as far as accused No.3 Kasim is concerned, even PW5 was confused and did not firstly correctly identify accused No.3 as one of the offenders who alongwith others committed the offence in question. Instead he identified accused No.4 as one of such of- fender present on the spot. Whereas, even as per the case of prosecution, accused No.4 Yakoob was not one of the accused who committed the robbery in question. Under these cir- cumstances, accused No.3 Kasim deserves benefit of doubt and is given benefit of doubt ac- cordingly.
21. Further, on a bare perusal of evidence of PW5 and PW10, it is clear that there were four persons and not five or more who are proved to be present on the spot of robbery. In this regard, it may be noted that one of the important ingredients for applicability of sec- tion 391 IPC is that accused must be present and aiding. Thus, physical presence of atleast five persons is required to attract section 391 IPC. In this case, at most, the prosecution is able to prove that four persons were present i.e. accused No.1,2,3 & 5 and infact even out of them benefit of doubt is given to accused No.3 for the reasons already discussed above. In any case, apart from the disclosure statement, which of course is inadmissible and hit by sec- tion 24 to 26 of Indian Evidence Act in the present case, prosecution has failed during trial to prove on record the physical presence of five or more accused who committed the offence in SC No. 28592/2016 State Vs Mohd. Nazim & others Page no.22 of 26 : 23 : question. Thus, charging section 395 IPC cannot be attracted against any of the accused per- sons under such facts and circumstances.
But having noted so, it may also be noted that the legislature has given a very comprehension scheme of offences relating to theft, robbery and dacoity. In this present case even if, a robbery is not qualified as dacoity because of above mentioned reason,still in the considered view of this Court section 394 IPC is attracted as far as accused No.1,2 & 5 are concerned. It is further noted that as section 394 IPC is not a different kind of offence and only aggravated form of theft only, as such it is held that no prejudiced can be said to be caused to the accused No.1,2 & 5 even if charge was framed u/s 395 IPC and not under 394 IPC, and still they are convicted for offence u/s 394 IPC.
In the present case, PW5 as well as PW10 categorically and consistently de- posed as also noted above that how they were robbed of their goods with truck on the night of 24 / 25th in question. Further nothing except bald denial has surfaced when the incriminat- ing evidence aforesaid was put to the accused during statement under section 313 CrPC. All what was stated by the accused No.1, 3 & 5 in their statement u/s 313 Cr.PC is that they are falsely implicated in the present case. Further, despite seeking permission to lead evidence, they did not lead any defence evidence.
It may also be noted that given the time lapse (between the the day of incident and evidence in court) and the fact different paper work relating to various procedural matter was carried out ,some of which was at the spot and other at police station (statement u/s 161 CR.P.C etc.), thus there can be some inconstancy about the same, but the same is not fatal SC No. 28592/2016 State Vs Mohd. Nazim & others Page no.23 of 26 : 24 : and so material when otherwise the statement of various witness is consistent and support each other.
At this stage, it may be noted that the standard of proof required in a criminal case is 'beyond reasonable doubt' and not 'beyond doubt'. As such, it may be noted that it is not every doubt which goes in favour of accused. Only those doubts, which are reasonable in the facts and circumstance of a particular case, goes in favour of accused. Accordingly, in view of such discussion and findings accused No.1,2 & 5 are convicted for the offence u/s 394 IPC.
22. As far as charge u/s 397 IPC is concerned, to attract such offence against any of accused, it is necessary that such particulars accused (s) himself / themselves used deadly weapon or caused grievous hut or attempted to cause grievous hurt or death. In the present case, as per the evidence of doctor / PW14 r/w PW21, the nature of injury was simple as noted on MLC mark PW14/X. Further, on the basis of evidence on record, it is clear that it is not the case of prosecution that such injury in question was grievous or same was likely to cause death. Further, the third possibility can be that such weapon used was deadly weapon and not any weapon. In this case, as per evidence on record, no weapon is recovered at all from any of the accused persons. Further, there is inconsistency in the deposition of PW5 also as to whether such object was knife or some other sharp weapon. In fact the exact nature of the object used is not proved on record by cogent evidence. Further, it is categorically stated by PW5 that only one of the accused out of four accused persons hit him on the head, as a result of which he started bleeding. But even during his evidence in Court, he did not de-
SC No. 28592/2016 State Vs Mohd. Nazim & others Page no.24 of 26 : 25 : pose as to out of accused persons in present case, which of accused person hit him on his head. Thus, it is not proved on record which of the accused persons actually caused such in- jury to PW5. Further, it is deposed by PW5 during his evidence in Court that accused per- sons made him to sit in the TSR while pointing out their knives at them. But no detail / spec - ification given as to which of such accused so pointed out knife at them. As such, such back- ground of evidence on record, the accused person deserves benefit of doubt ,and accordingly as far as offence u/s 397 IPC is concerned and they are given benefit of doubt .
23. As far as offence u/s 365 r/w 362 IPC is concerned, it is fruitful to reproduced such sections:
"362. Abduction.--Whoever by force compels, or by any deceitful means in- duces, any person to go from any place, is said to abduct that person.
365. Kidnapping or abducting with intent secretly and wrongfully to confine person.--Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with impris- onment of either description for a term which may extend to seven years, and shall also be liable to fine."
24. On a bare reading of sections 362, it is clear that same is attracted in the present case, as PW5 & PW10 by force were compelled to go from their vehicle and further made to sit in TSR used by accused persons. But, having noted so, on a bare reading of such section 365 IPC , it is clear that one of the essential condition is that intention of the accused must be to secretly as well as wrongfully confined the victim. In the present case, although PW5 & PW10 are wrongfully confined, as is clear from their examination in chief itself. But, SC No. 28592/2016 State Vs Mohd. Nazim & others Page no.25 of 26 : 26 : this Court finds that the same was not secretly. In fact, they were wrongfully confined but openly (and not secretly) on a running road in a TSR , which was also open from both side. Further, as per evidence on record, both PW5 & PW10 were left by the accused persons at Loni boarder, where a PCR spotted them immediately after the offence. As such, the inten- tion of the accused persons was clear and it was never to secretly confined them. Infact, their intention is clearly to rob the vehicle alongwith the goods and in order to carry out such rob- bery, they made the PW5 & PW10 sit in their PCR so that they do not raise their voice while such offence of robbery is being committed. As such, this Court finds that all the ingredients of offence u/s 365 IPC are not satisfied. As such, all the accused are acquitted of the offence u/s 365 r/w section 34 IPC.
25. Thus it is concluded that accused No. 3, 4, 6 & 7 namely Kasim, Mohd. Yakoob, Imran and Raju @ Rijwan @ Kale are acquitted of all the charges in the present case.
Accused No.1, 2 & 5 namely Mohd. Nazim, Shakir and Sajid @ Babla are convicted for the offence U/s 394 IPC R/w 34 IPC only. They are acquitted of all the other charges in the present case.
Copy of this judgment be given free of cost to all the accused.
Digitally signed by
NAVEEN NAVEEN KUMAR
KUMAR KASHYAP
Date: 2021.02.24
KASHYAP 14:53:00 +0300
Announced in the open (NAVEEN KUMAR KASHYAP)
Court on 19/02/2021 ASJ-04(Central)/DELHI/19/02/2021
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