Delhi District Court
State vs . 1. Badul @ Alauddin S/O Arshad, on 7 July, 2007
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IN THE COURT OF DR. R.K. YADAV : ADDITIONAL SESSIONS
JUDGE : KARKARDOOMA COURTS : DELHI :
Sessions Case No. 07/05
Date of Institution : 04.08.04
Date on which Reserved for order : 24.05.07
Date of Delivery of Judgement : 03.07.07
State Vs. 1. Badul @ Alauddin S/o Arshad,
R/o Vill. Chota Badura, PS Mural
Ganj, Distt. Bagarhat,
Bangladesh.
2. Rokan @ Aslam S/o Yusuf Ali,
R/o Vill. Dhansagar, PS Mural
Ganj, Distt. Bagarhat,
Bangladesh.
3. Salma @ Ruby W/o Dulal,
R/o Vill. Khulna, PS Suran Khula,
Distt. Bagarhat, Bangladesh.
(declared P.O.)
4. Dulal S/o Salam, R/o Vill.
Tapalwadi, PS Surawala, Distt.
Bager, Bangladesh.
5. Jor Singh S/o Jangi Singh,
R/o F98, Jawahar Park, Krishna
Park, Devli Road, Khanpur, New
Delhi.
FIR No. 104/04
PS Gandhi Nagar
U/S 395/397/411/412/34 IPC.
J U D G E M E N T : Home is safer heaven for its occupants and terra incognita for others. This concept of Ajay Verma was shattered when dacoits plundered his 2 house on night intervening 26/270304. He was in slumbers on ground floor of his house bearing municipal No. IX/6288, Jain Mandir Gali, Gandhi Nagar, Delhi. At about 4.15am, six or seven intruders entered his room duly armed with weapons. They made him to awake and asked him to keep quiet. His hands were tied with cloths. They ransacked his room. When nothing was recovered, they asked Ajay Verma as to where other occupants of the house were present. Ajay Verma led them to second floor of the house, where his elder brother was sleeping. He got room of Sanjay Verma opened. As soon as intruders entered that room, they tied hands of Sanjay Verma also. They pillaged his room and looted a sum of Rs.11001200/ out of his purse. From there, they brought Ajay Verma and Sanjay Verma to a room on first floor of their house. Uma Rani, their mother, was sleeping in that room. They ransacked that room too and looted a sum of Rs.1,75,000/ and gold jewellery from there. Two of the offenders made Uma Rani and Sanjay Verma to sit in that room and remaining offenders took Ajay Verma to ground floor portion of the house. Room, in which Ranjeet Verma, his father, was sleeping, was got opened. Offenders tied hands of Ajay Verma and Ranjeet Verma and made them to sit on a deewan. They plundered that room and removed a sum of Rs.2,75,000/, besides gold rings from there. Thereafter, offenders took them to the room, where Sanjay Verma and Uma Rani 3 were sitting. They bolted them inside that room and ransacked big hall of the house. A sum of Rs.1,50,000/ and mobile phone were looted by them from there. Thereafter, offenders put looted money and jewellery in a bag and decamped with it. Police was informed. Ajay Verma lodged a report, which became bedrock of the case.
2. Investigation was taken up by Harpal Singh SI. On 02.04.04, accused Badul and Rokan were arrested from village Ali. One locket having idol of lord Krishna in pendant was recovered from accused Rokan and wrist watch, make Titan, was recovered from accused Badul. At their instance, accused Salma @ Ruby was arrested. A gold chain was recovered at her instance. Silver bowl having 134 silver coins in it were recovered at the instance of accused Badul on 04.04.06. They led the police party to shop of accused Jor Singh. Two chains, two rings and five lockets were recovered at his instance. Police party went to Faridabad and currency notes of Rs.49466/ and jewellery were recovered from there, which were deposited with police by one Munshi @ Nasir.
3. On 28.08.04, accused Dulal was arrested and at his instance six silver coins and one pair of chutki were recovered. Case property was identified by the witnesses during the course of test identification proceedings. Investigation culminated into a chargesheet against the accused persons.
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4. Charge for offences punishable under sections 395 and 397 of the Penal Code was framed against accused Badul, Rokan and Salma, to which charge they pleaded not guilty and claimed trial. In the alternative, they were also charged for offence punishable under section 412 of the Penal Code, to which charge they pleaded not guilty and claimed trial. Accused Dulal was also charged for offences punishable under sections 395 and 397 of the Penal Code, to which charge he pleaded not guilty and claimed trial. In the alternative, he was also charged for offence punishable under section 412 of the Penal Code, to which charge he pleaded not guilty and claimed trial. Accused Jor Singh was charged for offence punishable under section 412 of the Penal Code, to which charge he pleaded not guilty and claimed trial.
5. During the course of trial, accused Salma @ Ruby absconded. Proclamation under section 82 of the Code of Criminal Procedure, 1973 (in short the Code) was published against her. Attachment warrants, as contemplated by section 83 of the Code, were also issued. Since there were no prospect of arrest of accused Salma @ Ruby, hence she was declared as proclaimed offender, vide order dated 01.03.06.
6. To substantiate the charges, prosecution has examined 5 Ajay Verma (PW1), Sanjay Verma (PW2), Ranjeet Kumar (PW3), Suredender Pal, Constable (PW4), Praveen Kumar, Constable (PW5), Shiv Om, Constable (PW6), Komal (PW7), E.S. Yadav SI (PW8), Mohan Singh, Constable (PW9), Nazir Hussain, Head Constable (PW10), Suman, Head Constable (PW11), Puran Singh, Head Constable (PW12), Sukhram, Constable (PW13), Harpal Singh SI (PW14), Sukrampal, Constable (PW15), Manoj, Head Constable (PW16), Nand Ram ASI (PW17), Sh. B.S. Chumbak, MM (PW18) and Dharampal SI (PW19) in the case.
7. Nazir Hussain, Head Constable; Puran Singh, Head Constable; Sukhram, Constable and Manoj Head Constable were given up as unnecessary by the ld. prosecutor. Surender Pal, Constable, reached spot on 27.03.04 and lifted eight chance prints from there. Report Ex.PW4/A was prepared and proved by him. Praveen, Constable, reached there with his sniffer dog, who could not get any clue. He testified these facts before the Court. Shiv Om, Constable, had taken ten photographs of the spot and proved it during the course of his testimony. E.S. Yadav SI was incharge of the Crime Team, in whose presence photographs were taken and chance prints were lifted. He had narrated those facts in his testimony. Suman, Head Constable, was working as duty officer, who recorded formal FIR. She proved copy of FIR as Ex.PW11/B. 6 Sukram Pal, Constable, remained associated in investigation on 27.03.04. He reached spot along with Harpal Singh SI. After recording statement of Ajay Verma, he was sent to police station with rukka for getting a case registered. He detailed those very facts in his testimony.
8. B.S Chumbak, MM, had entered witness box to prove TIP proceedings conducted by him on 23.07.04. He had proved his proceedings as Ex.PW18/B. Nand Ram ASI was posted in CIA Staff at Faridabad on 31.03.04. He details that Munshi @ Nasir reached CIA Staff with Moti Yadav and Naresh. He unfolded that a bag was kept with Munshi @ Nasir by Rokan @ Aslam, wherein certain currency notes and ornaments were kept. When Rokan came to take delivery of the bag, he asked as to what was contained in it. Rokan @ Aslam started running. He handed over the bag, containing currency noties and jewellery, to him which was deposited by him in the Malkhana. Mohan Singh, Constable, remained associated in investigation on 02.04.04 in whose presence Rokan @ Aslam and Badul were arrested. He detailed that a locket of lord Krishna was recovered from possession of accused Rokan @ Aslam, while wrist watch was recovered from accused Badul. Harpal Singh SI had conducted investigation of the case. He unfolded all investigative steps taken by him in the case. He details that Rokan 7 @ Aslam and Badul were arrested on 02.04.04. Salma was also arrested at their instance and from her possession a gold chain was recovered. Rokan @ Aslam and Badul led the police party to Rajput Jewellers, Devli Road, Khanpur. At their instance Jor Singh was arrested. From his possession, two gold chains, two gold rings and five pendants were recovered. SI Dharampal had arrested Dulal on 28.04.05. He claims that six silver coins and one chutki were recovered at the instance of accused Dulal from his house at Shahibabad, Ghaziabad, U.P.
9. Witness Ajay Verma, Sanjay Verma and Ranjeet Kumar were brought in the witness box to prove facts of the case. All of them deposed that on night intervening 26/270304, they were present at H.No. 9/6288, Gali Jain Mander, Gandhi Nagar, Delhi. Around 4.15am, 67 intruders came inside their house and robbed them. They had detailed the incident sequence wise, narrating as to how they were robbed by the intruders. However, all of them opted not to identify accused persons as authors of crime, claiming that offenders had muffled their faces. Komal was brought in the witness box to prove as to what articles were looted from their house. She had identified the jewellery, which were recovered in the case.
10. In order to afford an opportunity to explain circumstances appearing in evidence against them, accused persons were 8 examined under section 313 of the Code. They had denied all allegation. There case has been of denial simplicitor. According to them, they had been made victim of circumstances. Nothing was recovered at their instance. They have been framed in the case. Reba was examined in defence by accused Dulal, who testified that she was apprehended by the police about four years ago. Her daughter Salma and son Allamin were also apprehended by the police. She along with her son were released, while her daughter Salma @ Ruby was framed in the case. No other witness was examined by the accused persons in the case.
11. Arguments were heard at the bar. Sh. R.K. Pandey, Ld. Prosecutor, had presented facts on behalf of the State. Sh. D.K. Bhatia, Mahender Kumar and D.K. Tyagi, Advocates, had advanced arguments on behalf of the defence. I have given my careful considerations to the arguments advanced at the bar and cautiously perused the record. My findings on the issues involved in the controversy are as follows :
12. Ajay Verma is the star witness of the prosecution. He unfolds that on the night intervening 26/270304, he was sleeping in his room at his house. At about 44.15am, 67 intruders came inside his room. He woke up. Intruders had asked him to remain silent by showing their weapons. They had tied his hands and ransacked 9 almirah of his room after breaking its door. However, nothing was recovered. Thereafter, they took him to the room of his brother Sanjay on second floor of the house. Sanjay opened the door and intruders tied his hands also. Almirah, kept inside the room of Sanjay, was also searched. The intruders took out a sum of Rs.1100/ to Rs.1200/ from purse of Sanjay. Thereafter, they were taken to room of their mother on first floor of the house. Their mother was sleeping. They got the room opened. Intruders entered inside the room and tied hands of their mother. They broke open almirah of the room and removed cash amount of Rs.2,75,000/ and jewellery from it. Two of the intruders remained in that room and remaining offenders took him to the room of his father on ground floor of the house. After getting that room opened, offenders tied hands of his father also. They broke open almirah and removed gold rings and cash worth Rs.2,75,000/ from there. Thereafter, they were brought by them to the room of his mother and they were made to sit there. Intruders removed one black canvass bag, lying in the hall, containing a sum of Rs.1,50,000/. They kept all looted articles in that bag. They removed mobile phones from their house. They had taken away jewellery consisting of 45 sets, pendant sets, five or six gold chains, seven or eight rings, couple of bracelets, one silver bowl, containing sliver coins, three or four wrist watches, artificial 10 pendants etc from their house, besides cash. Police reached there and recorded his statement, which is Ex.PW1/A. Wrist watch Ex.P1, silver bowl Ex.P2, silver coins Ex.P3/1 to 134, locket Ex.P4, currency notes (collectively) exhibited as Ex.P5, kara in three pieces, five rings, one chain, five jhumkies and other small pieces of jewellery (collectively) exhibited as Ex.P6, gold chain Ex.P7, two gold chains, two gold rings and five lockets (collectively) exhibited as Ex.P8 and two silver chutkis and six silver coins (collectively) exhibited as Ex.P9 are the same, which were looted from his house. He unfolds that since offenders were keeping their faces muffled, he was unable to identify them as authors of crime.
13. Defence claims that this witness was crossexamined by ld. prosecutor, when he opted not to identify accused persons. It has been agitated that when testimony of this witness has been discredited by prosecution itself, his testimony cannot be read against the accused persons. Contention advanced by the defence is not in consonance with law. Cross examination of witness by the party who calls him, would not efface his testimony completely. It is open to the Court to consider the evidence and there is no objection to a part of that evidence being made use of in support of the prosecution or in support of the accused. Law to this effect was laid down by the Apex Court in Bhagwan Singh (AIR 1976 S.C. 202), 11 Satpal (AIR 1976 S.C. 294) and Ravinder Kumar Dey (AIR 1977 S.C. 170). Same proposition of law was laid by the Apex Court in Sayed Akbar (AIR 1979 S.C. 1848) which proposition was again reiterated by the Supreme Court in Khujji @ Surender Tiwari (1991 Cr.L.J. 2653). Also see Laxman Bhai (AIR 2000 S.C. 210) and Lella Srinivasa Rao (AIR 2004 S.C. 1720). In view of the law laid above, it is crystal clear that testimony of Ajay Verma can be read in evidence, in case it finds corroboration from some other independent evidence, direct or circumstantial.
14. Smt. Komal gives support to the facts testified by Ajay Verma. She deposed that on 27.03.04, she was away to Mumbai. She returned home on 29.03.04 and checked house hold articles. She found one set of Firoza (gold), one set of gold having round shape, one set of pearl, one long set weighing 11 tolas, eight bangles (gold), four bangles (gold), four bangles (gold) belonging to her motherinlaw, two other bangles (gold), weighing two tolas, two tops, two earrings, one jhumki, gold rings, three wrist watches, two bracelets, four gold chains, six pendants, one idol of Ganpati, one idol of lord Krishna, another idol of lord Shankar, silver bowl, filled with silver coins, missing from the house. She had identified articles Ex.P1 to P9 as the same, which were robbed from her house. Her testimony remained unassailed on facts detailed above.
12 Consequently, it is evident that testimony of Komal is not disputed by the defence and can be used for adjudicating accountability of the accused persons. Her testimony gives support to facts testified by Ajay Verma. Therefore, it is concluded that on night intervening 26/270304, six or seven intruders entered the house of Ajay Verma at about 44.15am and looted cash and jewellery items detailed by him in his testimony.
15. Sanjay Verma and Ranjeet Kumar had also detailed all sequence of the incident. They narrated that on the night of 27.03.04, they were present in their house, when offenders reached there around 4.15am. Offenders had robbed them and taken away cash and jewellery from their house. Though, these two witnesses project incident in detail, narrating as to in what manner dacoity took place in their house, yet none of them opted to identify the accused persons, standing in the dock, as authors of crime. However, Sanjay Verma identified articles Ex.P1 to P9 as the same, besides bag Ex.P10, which were robbed from their house. Ranjeet Kumar had also detailed that robbers came in his room, tied his hands and ransacked almirah kept in his room. They had taken away jewellery from the said almirah. Out of facts testified by Ajay Verma, Sanjay Verma and Ranjeet Kumar, it stands established that on night intervening 26/270304, a dacoity took place at house No. 9/6288, 13 Gali Jain Mandir, Gandhi Nagar, Delhi, and in that dacoity cash and jewellery items were looted by dacoits.
16. Mohan Singh, Constable, unfolds that on 02.04.04, he joined investigation of this case with Surender Kumar SHO, Harpal Singh SI, Inspector Rakesh Dikshit of special staff, HC Nazir, HC Manoj, SI Virender and ASI Ombir. They had gone to village Ali. They reached house No. 159 in that village from where accused Badul and Rokan @ Aslam were arrested on informant's tip. A locket of Krishna idol on it was recovered from accused Rokan and wrist watch, make Titan, was recovered from possession of accused Badul. He details that locket and wrist watch were converted into cloth parcels and seized vide seizure memo Ex.PW9/A and Ex.PW9/B respectively. Besides, that locket and wrist watch other articles were also recovered from there, which were seized under section 102 of the Code, vide memo Ex.PW9/C. Wrist watch Ex.P1 was recovered from possession of accused Badul and locket Ex.P4 was recovered from possession of accused Rokan @ Aslam.
17. Facts testified by Mohan Singh, Constable, were questioned by the defence on the count that his testimony cannot be used against accused persons, since it suffers from inherent infirmities. It has been claimed that Mohan Singh, happens to be a police Constable, who wants to see accused persons convicted.
14 Arguments advanced by the defence were found to be untenable. When testimony of Mohan Singh, Constable, was closely perused, it came to light that he admits that landlord of the house was not joined in the investigation. He explains that Sohan Lal, owner of the house, was present, but he was not joined in investigation. Non joining of Sohan Lal may raise eyebrows over the manner in which investigation was conducted by Harpal Singh SI. However, it would not cast aspersions on the testimony of Mohan Singh, Constable, who unfolded true facts before the Court. It is a matter of common knowledge that these days public persons generally opt not to support case of the prosecution. That situation might have persuaded Harpal Singh SI not to join Sohan Lal in investigation. But that very fact would not put testimony of Mohan Singh, Constable, in an arena of doubt. Mere fact that Mohan Singh, Constable, happens to be a police constable would not castigate his testimony.
18. Testimony of police officials are to be treated in the same manner as testimony of any other witness and the view that their testimony, without corroboration by independent witness is unworthy of belief, cannot be supported. There is no presumption that police officials are liars. Evidence of police official cannot be underestimated merely because he happens to be a member of 15 police force. Their depositions cannot be brushed aside when there is no proof of illwill, rancour or spite against the accused. When evidence of police officer who laid trap is found entirely trustworthy, there is no need to seek any corroboration. Law to this effect was laid by the Apex Court in Hazari Lal (AIR 1980 SC 873). It was further held in Muhim Barkati (AIR 1987 SC 98) that evidence of a police official cannot be underestimated merely because he is a police officer. No general rule can be laid down that the evidence of an investigating officer, conducting a search cannot be relied unless it is corroborated. Conviction can be recorded on the basis of solitary evidence of a police official if there is no bias against him. Testimony of a witness should be judged on its merits and the Court should not draw an adverse inference from the reason of his being a Govt. servant or in the employment of police. There is no rule of presumption against a police official that his testimony is to be regarded as of little value. Prosecution version cannot be rejected on that ground. Reliance can be placed on judgement of Delhi High Court in Om Prakash (1982 Cr.L.J. 751). In view of all these facts, I am of the considered opinion that testimony of Mohan Singh can be relied, while adjudicating accountability of the accused persons, since his testimony does not suffer from inherent infirmities. No bias has been alleged against him by the defence. From facts testified 16 by Mohan Singh, Constable, it emerged over the record that on 02.04.4, Rokan @ Aslam and Badul were arrested from house No. 159, Village Ali and locket Ex.P4 was recovered from possession of accused Rokan @ Aslam, while wrist watch Ex.P1 was recovered from possession of accused Badul.
19. Harpal Singh SI unfolds that on 27.03.04 DD No. 8A was assigned to him, copy of which is Ex.PW14/A. He reached Jain Mandir Street, Gandhi Nagar, Delhi, along with Sukhrampal, Constable. Complainant Ajay Verma was present there. He interrogated him and recorded his statement Ex.PW1/A. He recorded rukka and got a case registered. He inspected the site and prepared site plan Ex.PW14/B. He unfolds that on 29.03.04, he had shown dossiers of Bangladeshi offenders to the complainant, who had identified dossier of Salma as to be of their maid servant Ruby. On 02.04.04, he along with Mohan Singh, Constable, Surender Kumar SHO, Inspector Rakesh Dikshit of special staff, HC Nazir Ahmed and HC Manoj left for village Ali, since an information was received that offenders, namely, Rokan @ Aslam and Badul were present there. They reached house No. 159, Village Ali, where Rokan @ Aslam met them. A locket having idol of lord Krishna, which is Ex.P4, was recovered from accused Rokan @ Aslam and wrist watch, make Titan, which is Ex.P1, was recovered from 17 accused Badul. It were converted into a cloth parcel, sealed with seal of HPS and taken into possession vide memo Ex.PW9/A and Ex.PW9/B respectively. Some other goods were also seized from that room, vide memo Ex.PW9/C. From these facts, testimony of Mohan Singh, Constable, get reaffirmation. Story projected by these two witnesses satisfies standards of behavioural probabilities and tenets of veracity. Hence, it is concluded that Rokan @ Aslam and Badul were arrested on 02.04.04 and from their possession looted locket and wrist watch were recovered.
20. Harpal Singh SI deposes further that Rokan and Badul made disclosure statements, disclosing therein that Salma was available in Ajit Nagar. They went to Ajit Nagar, where Salma was seen coming from street No.16, Ajit Nagar, Delhi. She was stopped, interrogated and arrested vide memo Ex.PW14/C. Complainant Ajay Verma reached there and identified Salma @ Ruby as to be their maidservant. Salma led the police party to a house in Tagore Garden in Gandhi Nagar and got recovered a chain from there. Gold Chain was converted into a cloth parcel, sealed with seal of HPS and taken into possession vide memo Ex.PW1/D. Gold chain was identified by Ajay Verma at the spot as to be the same, which was subject matter of dacoity from their house. Accused Rokan and Badul made disclosure statements, disclosing therein that they had 18 sold ornaments at shop of Rajput Jewellers, Devli Road, Khanpur. Their disclosure statements Ex.PW14/J and Ex.PW14/K were recorded. They led police party to the shop of Rajput Jewellers, Devli Road, Khanpur, where accused Jor Singh was sitting at the shop. Accused Jor Singh led the police party to his H.No. F98, Jawahar Park, and produced two gold chains, two gold rings and five pendants. Articles were converted into a cloth parcel, sealed with seal of HPS and taken into possession vide memo Ex.PW1/C. Complainant Ajay Verma had identified article as to be his own, which were looted from his house. Jor Singh was arrested and his personal search was conducted. On 04.04.04, Badul produced silver bowl, containing silver coins, which was also converted into a cloth parcel, sealed with seal of HPS and taken into possession vide memo Ex.PW1/E. Silver bowl Ex.P2 and silver coins Ex.P3/1 to 134 are the same which were recovered from accused Badul.
21. Harpal Singh SI unfolds that on 03.05.04, he had gone to district Court, Faridabad, and moved an application for release of case property, which was in custody of CIA Staff, Sector31, Faridabad. Court passed an order in his favour. On 04.05.04, he went to CIA Staff, Faridabad, along with Ajay Verma. There case property was produced before him. When he unsealed the parcel, jewellery items, besides cash were recovered out of it. Ajay Verma 19 identified jewellery items as to be the same, which were robbed from his house. He identified currency notes, eight notes of Rs.1000/ in denomination, twenty four notes of Rs.500/ in denomination, two notes of Rs.100/ in denomination, two notes of Rs.50/ in denomination, ten notes of Rs.10/ in denomination, 37 notes of Rs.5/ in denomination, thirty notes of Rs.2/ in denomination and twenty one notes of rupee one in denomination, collectively as Ex.P5 to be the same, which were taken into possession by CIA Staff, Faridabad. He had also identified Karas in three pieces, five rings,one chain, five jhumkis, small pieces of jewellery collectively exhibited as Ex.P6, which were seized from the office of CIA Staff, Faridabad. Gold chain Ex.P7 was recovered from possession of accused Salma, deposes the witness. He identified two chain, two rings and five pendants (collectively) as Ex.P8, which were recovered from possession of accused Jor Singh.
22. Harpal Singh SI announced that accused Rokan and Badul made disclosure statements, disclosing therein that they had sold jewellery at the shop of Rajput Jewellers, Devli Road, Khanpur. They led police party to the shop of Rajput Jewellers, where Jor Singh was found sitting. Jor Singh led the police party to his house No. F98, Jawahar Park, Delhi, and produced two gold chains, two gold rings and five pendants from there. He led emphasis that these 20 articles were identified by Ajay Verma as the same, which were looted from his house. Question for consideration comes as to whether solitary testimony of Harpal Singh SI is sufficient to hold accused Jor Singh accountable to the charge. Section 134 of the Evidence Act attaches importance to the quality than to the quantity of the evidence, by providing that no particular number of witness in any case, is required for the proof of any fact. Proof of a fact would depend upon the character of witness and his competency to speak to that fact. It is not enough to prove a fact that a number of witness should assert it. No fix number of witness is needed to prove a fact, even testimony of one witness is sufficient. Law to this effect was laid by the Apex Court in Valula Bhushan (AIR 1988 S.C. 236), Jayaram Shiva Tagore (AIR 1991 S.C. 1735) and Ramju Surja (1983 Cr.L.J. 1105). In view of law laid above, It is evident that testimony of Harpal Singh SI is to be weighed on the basis of its intrinsic worth. Harpal Singh SI presents that two gold chain, two gold rings and five pendants, which are Ex.P8, were recovered at the instance of accused Jor Singh. His testimony remained aboveboard, when he faced ordeal of crossexamination. No motive was attributed to him. He was crossexamined at length but nothing came over the record which may raise cloud of suspicion against his depositions. Events unfolded by him were found in consonance with ordinary human 21 behaviour and worth reliable. Consequently, I am of the considered opinion that solitary testimony of Harpal Singh is sufficient to adjudicate accountability of the accused Jor Singh.
23. Nand Ram ASI deposed that Munshi @ Nazir came to CIA Staff, Faridabad, on 31.03.04 and produced a bag before him. When said bag was checked, it was containing a sum of Rs.49466/, besides one gold kara, one gold ring, one pair of jhumki, five pendants, one chhatar (gold washed), two pendants, small pieces of gold ornaments, one mobile phone and charger, which were taken into possession vide memo Ex.PW17/A. Testimony of Nand Ram ASI is suffering from inherent infirmities, since he opted not to examine Munshi @ Nazir, Moti Yadav and Naresh, who allegedly came to his office to hand over bag to him. Munshi @ Nasir, Moti Yadav and Naresh were not produced before the Court. No explanation was offered as to why these witnesses were not examined. Munshi @ Nasir, Moti Yadav and Naresh were to narrate material facts. It is evident that these three witnesses were intentionally withheld by the prosecution, without any reasonable excuse. In such a situation, circumstances justify presumption to the effect that in case Munshi @ Nazir, Moti Yadav and Naresh would have been examined in the case, then they might have testified facts against the prosecution. Testimony of Nand Ram ASI 22 does not lead prosecution to its destination.
24. Dharampal SI testified that on 28.05.04, Dulal was arrested by him from Court of Sh. Rajnish Kumar Gupta, after seeking permission from the ld. Magistrate. He was taken on police remand. On 29.08.04, he was interrogated and made disclosure statement, disclosing therein that six silver coins and one jhumkis were kept at Shahibabad, Ghaziabad, U.P. His disclosure statement Ex.PW19/D was recorded. He led the police party to Shahibabad and got recovered six silver coins and one pair of chutki, which were taken into possession vide memo Ex.PW19/E. According to him, witness Ajay Verma identified said case property in the police station as to be the same, which were robbed from his house. When facts testified by Dharampal SI were closely perused, it came to light that his testimony suffers from inherent infirmities. He explains that case property was seized at Shahibabad, Ghaziabad, U.P., vide seizure memo Ex.PW19/E. When seizure memo Ex.PW19/E was perused, it came to light that six silver coins and one pair of chutki were converted into a cloth parcel, sealed with seal of DP and taken into possession at village Shahibabad, Ghaziabad, U.P. When aforesaid case property was sealed in parcel at the place of recovery itself, how it was identified by Ajay Verma, as to be his own at police station, has not been explained. It seems that Dharampal SI had 23 tampered with case property at certain juncture, when it was allegedly shown to Ajay Verma. In such a situation, identity of the case property, alleged to have been recovered from possession of accused Dulal, came within arena of doubt. Even otherwise, the case property, which was alleged to have recovered from possession of accused Dulal, was not proved by Dharampal SI. Consequently, his evidence remained vague. His solitary testimony is not sufficient to adjudicate accountability of the accused Dulal.
25. Assuming that possession of aforesaid property is traced to Dulal, the prosecution has not been able to establish that his possession was recent one. It was incumbent upon the prosecution to establish that Dulal dishonestly received and retained it, knowing that it was transferred by commission of dacoity. No evidence was adduced by the prosecution to prove the facts referred above. Dacoity took place on 27.03.04 and recovery was alleged to have been effected on 29.08.04. A fortiori possession of five months after the loss is too long a period to raise presumption against him to the effect that he dishonestly received and retained it knowing that it was transferred by commission of dacoity. Even otherwise, identity of the property recovered from his possession has not been established. No evidence came over the record to establish that he committed dacoity in the house of the complainant party. Considering 24 weakness in the testimony of Dharampal SI, I am of the opinion that the prosecution failed to prove its case against accused Dulal. He is, accordingly, entitled for an acquittal.
26. As detailed above, Ajay Verma, Sanjay Verma and Ranjeet Kumar opted not to identify accused persons as authors of crime, claiming that they had covered their faces with cloths. No other evidence has been brought over record to establish identity of accused Badul, Rokan @ Aslam as dacoits. However, prosecution has been able to prove that one wrist watch, locket, silver bowl and silver coins were recovered from their possession, which were identified by Ajay Verma, Sanjay Verma and Komal as to be the subject matter of dacoity. Recovery of above property at the instance of Badul and Rokan @ Aslam was recent one. Badul and Rokan @ Aslam opted not to offer an explanation, in their statements recorded under section 313 of the Code, as to how they came by it. Illustration (a) appended to section 114 of the Evidence Act enables the Court to presume that a man, who is in possession of stolen goods soon after the theft (dacoity in this case) is either thief or has received the stolen goods knowing them to be stolen, unless he accounts for his possession. Thus, it is evident that length of time may modify the presumption referred above. But length of time is not the only circumstance which can modify the presumption, 25 which depends as much upon the nature of the property stolen and upon whether it is not likely to pass readily from hand to hand, as upon other circumstances from which men may safely draw inferences. Property recovered from possession of these two accused persons is not such which may change hands readily. Considering all these facts, a presumption is drawn against accused persons, namely, Badul and Rokan @ Aslam that they received and retained aforesaid property, knowing well the same to be taken away in dacoity. Consequently, offence punishable under section 412 of the Penal Code has been established against accused Rokan @ Aslam and Badul.
27. Jor Singh has also not explained as to how he came into possession of the property recovered from his possession. His possession over the property was recent one. Property recovered from his possession is such which does not change hands readily. Property recovered from his possession was identified by Ajay Verma, Sanjay Verma and Komal as to be the same, which was subject matter of dacoity, which took place at their house. Accordingly, a presumption is drawn against the accused Jor Singh that he received and retained aforesaid proprety, knowing well as to be the same as subject matter of dacoity committed at house of Ajay Verma, Sanjay Verma and Smt. Komal. Offence punishable under 26 section 412 of the Penal Code has been established against him.
28. In view of the foregoing discussions, accused Dulal is acquitted of the charge. Accused Badul and Rokan @ Aslam are acquitted of the charge for offences punishable under section 395 and 397 of the Penal Code. However, accused Badul, Rokan @ Aslam and Jor Singh are held guilty and convicted for offence punishable under section 412 of the Penal Code.
Announced in the Open Court (Dr. R.K. Yadav)
rd
On this 3 day of July, 2007. Additional Sessions Judge :
Karkardooma Courts, Delhi. 27 IN THE COURT OF DR. R.K. YADAV : ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI :Sessions Case No. 07/05
State Vs. 1. Badul @ Alauddin S/o Arshad, R/o Vill. Chota Badura, PS Mural Ganj, Distt. Bagarhat, Bangladesh.
2. Rokan @ Aslam S/o Yusuf Ali, R/o Vill. Dhansagar, PS Mural Ganj, Distt. Bagarhat, Bangladesh.
3. Jor Singh S/o Jangi Singh, R/o F98, Jawahar Park, Krishna Park, Devli Road, Khanpur, New Delhi.FIR No. 104/04
PS Gandhi Nagar U/S 412 IPC.
ORDER ON THE POINT OF SENTENCE : Sh. Mahender Kumar, Advocate, presents that convict Rokan @ Aslam is a young man, aged about 23 years. He agitates that he is only bread earner to support his family. He claims leniency on his behalf. Sh. Mahender Kumar further presents that convict Badul is 24 years of age. According to him, there is none to support family of convict Badul also. Jor Singh is 37 years of age, presents Sh. Mahender Kumar. He argued that he has to support his wife and children also. He claims leniency on behalf of all the three convict persons.
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2. On 27.03.04 at about 4am, a dacoity took place in the house of Ajay Verma. Cash worth Rs. six lacs and jewellery items were looted by the dacoits. On 02.04.04, Badul and Rokan were arrested from village Ali and locket of lord Krishna was recovered from possession of Rokan and a wrist watch, make Titan, was recovered from Badul. On 04.04.04, one silver bowl, containing 134 silver coins, was recovered at the instance of convict Badul. They led the police party to the shop of Jor Singh and from there two rings, two chains and five lockets were recovered. Property recovered from possession of convict persons was identified by Ajay Verma, Sanjay Verma and Smt. Komal as to be the same, which was subject matter of dacoity. Circumstances are suggestive that convict persons dishonestly received and retained the aforesaid property, knowing well that it was transferred by commission of dacoity.
3. Fewer would be dacoits, in case fewer would be receiver of stolen property, possession of which has been transferred by commission of dacoity. These circumstances are suggestive that a receiver of stolen property should be dealt at par with that of a dacoit. Taking into account all these aspects and mitigating circumstances presented by Sh. Mahender Kumar, Advocate, convict persons are, hereby, sentenced to undergo RI for three years 29 each and to pay a fine of Rs.2000/ each. In default of payment of fine, they would further undergo RI for four months each.
4. A copy of judgement and order on sentence be supplied to convict persons free of cost. Convict presons shall get benefit of period already undergone in detention during investigation and trial of this case. Case property be released in favour of rightful owner. Orders accordingly.
Announced in the Open Court (Dr. R.K. Yadav)
th
On this 7 day of July, 2007. Additional Sessions Judge :
Karkardooma Courts, Delhi.