Delhi District Court
State vs . (1). Naveen on 10 November, 2014
FIR No. 388/11; U/s 392/395/412 IPC; P.S. Alipur D.O.D.10.11.2014 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 168/14 Unique Case ID No. 02404R0069082012 State Vs. (1). Naveen S/o Sh. Chander Prakash R/o A72Y, DDA Flat, Near P.S. Mahindra Park, Jahangirpuri, Delhi. (2). Jitender S/o Sh. Shivji Sahni R/o Village Sarfra, P.S. Baroli, Distt. Gopal Ganj, Bihar (3). Lalit Kumar (Declared juvenile vide order dated 11.09.2012) S/o Sh. Jamuna Rai R/o Village Safipur, P.S. Ashiwan, Distt. Unnau, U.P. (4). Sunil Kumar (Declared juvenile vide order dated 07.03.2013) S/o Sh. Raja Ram R/o Village Safipur, P.S. Ashiwan, Distt. Unnau, U.P. FIR No. : 388/11 Police Station : Alipur Under Sections : 392/395/412/34 IPC State V/s Naveen etc. ("convicted U/s 411/34 IPC") Page 1 of 17 FIR No. 388/11; U/s 392/395/412 IPC; P.S. Alipur D.O.D.10.11.2014 Date of committal to Sessions Court : 09.02.2012 Date on which judgment was reserved: 10.11.2014 Date on which Judgment pronounced : 10.11.2014 JUDGMENT
The case of the prosecution as mentioned in the chargesheet is that on 17.11.2011, Sh. Vinod Kumar Yadav (PW5) was working as Chowkidar at godown namely Karni Wala Farm House, Jind Pur Road owned by Sh. Mahesh Mehta (PW4). On that day, said Vinod Kumar Yadav was present at the godown alongwith driver Santosh Kumar Jha (PW8) and Paledar Sardarmal Yadav (PW6). It is alleged that two persons were sleeping in a room near the entry gate of godown and Vinod Kumar Yadav was present outside the said room. At about 2.00 - 3.00 am on the intervening night of 17/18.11.2011, 34 persons came inside after crossing over the boundary wall. Their faces were covered with the cloth and they were having dandas in their hands. Those 34 persons who have entered into the godown, showed danda to Vinod Kumar Yadav. They threatened him and asked for the keys of the godown. He gave them the keys of the godown which were hanging on the khunti in the Guard Room due to fear and the offenders got opened the door of the room in which other persons were sleeping and pushed Vinod Kumar Yadav inside the room and also took his search as also search of his other associates.
It is further alleged that the offenders forced Vinod Kumar Yadav (PW5), Santosh Kumar Jha (PW8) and Paledar Sardarmal Yadav (PW6) to sit on one of the corners of the room and they left one person in the room to State V/s Naveen etc. ("convicted U/s 411/34 IPC") Page 2 of 17 FIR No. 388/11; U/s 392/395/412 IPC; P.S. Alipur D.O.D.10.11.2014 watch them. It is further alleged that one of the persons joined his associate who was standing outside the room and after some time, Vinod Kumar Yadav, Santosh Kumar Jha and Paledar Sardarmal Yadav heard the voice of entry of vehicle inside the godown.
After about half an hour, one of the assailants came inside the room and threatened Vinod Kumar Yadav, Santosh Kumar Jha and Paledar Sardarmal Yadav not to come out from the room for twothree hours and the person who was watching on the aforesaid persons, went alongwith the other assailants and the aforesaid persons had listened the voice of vehicle going outside the godown. The aforesaid three persons kept sitting in the room for half an hour to one hour in fear and after about one hour, they came out of the room and a person who was sleeping behind the godown in a room namely Babu Ram was got up by them. They narrated the whole incident to said Babu Ram. After getting information from Babu Ram, the owner Sh. Mahesh Mehta (PW4) came there and informed the police.
It is mentioned in the charge sheet that on receipt of DD no. 26A, SI Ravinder(PW9) alongwith Ct. Suresh Chand reached the spot where SI Ravinder recorded statement(Ex PW5/A) of complainant Vinod Kumar Yadav(PW5) and on the basis of said statement, FIR in question came to be registered at PS Alipur.
It is claimed that after registration of FIR, investigation was entrusted to SI Ravinder who prepared site plan (Ex PW9/B) of the place of occurrence at the instance of complainant. The investigation was transferred to SI Neeraj(PW10) on 17.11.11.
State V/s Naveen etc. ("convicted U/s 411/34 IPC") Page 3 of 17 FIR No. 388/11; U/s 392/395/412 IPC; P.S. Alipur D.O.D.10.11.2014 It is alleged that on 17.11.11 at about 9.00 P.M, IO SI Neeraj received secret information in the basis of which he prepared raiding party consisting of himself, Ct. Mahasher Ali(PW1), HC Sanjeev Tyagi and HC Pushpender and all of them reached at Mahesh Farm House, Bhaktawar Pur village where HC Sanjay went inside the said farm house after jumping the boundary wall and opened the main gate thereof from inside. Thereafter, all said police officials went inside the farm house and apprehended accused namely Naveen and Jitender as also JCLs namely Sunil and Lalit who were sitting outside one room situated in the said farm house.
It is further alleged that said accused persons as also both the JCLs, got recovered 178 bags containing stolen katha which was duly identified by owner namely Sh. Mahesh Mehta(PW4) as also by complainant Sh Vinod Kumar Yadav. All the said accused persons were arrested and their disclosure statements were recorded and after completion of investigation, chargesheet was filed before the Court.
After compliance of Section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charges u/s 395/412/34 IPC against the accused vide order dated 16.03.12 to which all the accused pleaded not guilty and claimed trial.
In support of its case, prosecution has examined as many as ten witnesses namely PW1 Ct. Mahasher Ali, PW2 HC Ramesh Kumar, PW3 HC Devender, PW4 Sh. Mahesh Mehta, PW5 Sh. Vinod Kumar Mehta, PW6 Sh State V/s Naveen etc. ("convicted U/s 411/34 IPC") Page 4 of 17 FIR No. 388/11; U/s 392/395/412 IPC; P.S. Alipur D.O.D.10.11.2014 Sardar Mal Yadav, PW7 HC Suresh Chand, PW8 Sh Santosh Jha, PW9 SI Ravinder and PW10 SI Neeraj till 02.07.14.
I have heard Sh. Pankaj Bhatia, Ld. Addl. PP on behalf of State and ld. Amicus Curiae Ms. Neelam Singh, Adv. for both accused persons. I have also gone through the material available on record.
Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under: PUBLIC WITNESSES PW4 Sh. Mahesh Mehta: He is the owner of case property. He deposed that on 17.11.11, he received phone call from Paledar namely Babu from his godown situated near Carniwal Banquet Hall, Alipur, Delhi that dacoity has been committed at the said godown. He alongwith one Rajiv Soni rushed to the said godown where his Chowkidar Sh Vinod Kumar Yadav(PW5) met and narrated about the entire incident. Accordingly, he informed the police at 100 number on which police came and recorded his statement.
He further deposed that on 18.11.11 at about 12.0012.30 A.M in the night, he received phone call from police official on which he went to Mahesh Farm House, Bhaktawarpur village where he identified the recovered stolen katha lying over there. The said katha was seized by the police vide seizure memo Ex PW1/A and he got the same released on State V/s Naveen etc. ("convicted U/s 411/34 IPC") Page 5 of 17 FIR No. 388/11; U/s 392/395/412 IPC; P.S. Alipur D.O.D.10.11.2014 superdari from the Court vide superdarinama Ex PW4/A. He also identified five bags out of 173 bags of katha, marked as Ex P1 to Ex P5 during trial and photographs of all those 173 bags of katha as Ex PW4/A1 to Ex PW4/A6. He also produced copies of invoice and form VAT D3 with regard to 200 bags of katha, which were given exhibits as Ex PW4/B1 to Ex PW4/C2.
During cross examination, general suggestions have been given to the witness from the side of accused persons which he denied.
PW5 namely Sh. Vinod Kumar Yadav: He is the complainant in this case. As per the case of prosecution, this witness was working as Chowkidar at the godown of Sh. Mahesh Mehta(PW4).
This witness deposed on the lines of prosecution story during chief examination and narrated about the incident of dacoity committed at the spot.
He also deposed that police had recorded his statement Ex PW5/A. However, he did not identify accused herein to be assailants involved in the commission of dacoity committed on 17.11.11.
However, this witness supported the case of prosecution regarding recovery of 173 bags of katha recovered from the possession of accused herein on 18.11.11 by claiming that he alongwith owner Sh Mahesh Mehta had visited Mahesh Farm House where the aforesaid bags of katha were identified by them. He also identified five bags Ex P1 to Ex P5 produced during trial to be the part of the goods in respect of which dacoity was committed on 17.11.11.
State V/s Naveen etc. ("convicted U/s 411/34 IPC") Page 6 of 17 FIR No. 388/11; U/s 392/395/412 IPC; P.S. Alipur D.O.D.10.11.2014 During cross examination, he deposed that he had left the job in 2012 after the incident. He was not having any mobile phone on the date of incident. There were two more persons present in the godown besides him. He did not see the vehicle in which goods were taken away by the assailants. All the bags were not taken by assailants from the godown and he did not tell about the description, height etc. of the assailants to the police.
PW6 namely Sardar Mal Yadav: This witness was working as Paledar at godown of Mahesh Mehta(PW4) and was also sleeping in a room besides complainant Vinod Kumar Yadav and Santosh Jha on 17.11.11.
This witness also deposed on similar lines as deposed by PW5 Sh Vinod Kumar Yadav. However, he also could not identify the accused herein to be the assailants involved in the commission of dacoity by claiming that assailants had covered their faces at the time of commission of offence.
Nothing material could come on record during cross examination of this witness despite the fact that he was cross examined at length on behalf of accused persons.
PW8 namely Sh. Santosh Jha: As per the case of prosecution, this witness was also present inside the godown of Sh Mahesh Mehta(PW4) on 17.11.11 when incident in question had taken place. He also deposed on the identical lines as deposed by PW5 Sh. Vinod Kumar Yadav and PW6 Sardar Mal Yadav during chief examination. However, he also did not identify any of the accused herein to be the assailants involved in the State V/s Naveen etc. ("convicted U/s 411/34 IPC") Page 7 of 17 FIR No. 388/11; U/s 392/395/412 IPC; P.S. Alipur D.O.D.10.11.2014 commission of offence by claiming that offenders had covered their faces with the clothes due to which he could not see their faces.
During his cross examination, simple suggestions have been given from the side of accused which he denied.
POLICE WITNESSES PW1 namely Ct. Mahasher Ali and PW10 SI Neeraj : PW10 SI Neeraj is the IO in this case whereas PW1 joined investigation with PW10 alongwith PWs HC Pushpender and HC Sanjay Tyagi on 17.11.11.
Both these witnesses deposed on identical lines and narrated about the investigation carried out by them on 17.11.11 regarding arrest of both the accused herein as also about the recovery of 178 bags containing katha from the possession of accused from Mahesh Farm House.
Both these witnesses also deposed about the proceedings including preparation of various documents, carried out at the place of recovery of stolen property and seizure thereof. They also identified both the accused herein as well as the case property during chief examination.
During cross examination, both these witnesses remained consistent and nothing contrary to the case of prosecution could be elicited from the side of accused persons. In other words, both these witnesses remained firm throughout their cross examination from the side of accused persons on the aspect of recovery of 178 bags containing stolen katha recovered from the possession of accused herein.
PW2 namely HC Ramesh Kumar: This witness was posted as State V/s Naveen etc. ("convicted U/s 411/34 IPC") Page 8 of 17 FIR No. 388/11; U/s 392/395/412 IPC; P.S. Alipur D.O.D.10.11.2014 Duty Officer in PS Alipur on 17.11.11. He has deposed about the factum regarding registration of FIR in question. He exhibited copy of FIR as Ex PW2/A and his endorsement on the rukka as Ex PW2/B. This witness has not been cross examined by accused persons despite grant of opportunity.
PW3 namely HC Devender: This witness was posted as MHC(M) in PS Alipur on 18.11.11. He deposed that SI Neeraj had deposited 178 bags containing katha(Catchu), three dandas and personal search articles of accused persons in Malkhana vide entry at serial no. 549 made in register no. 19. He proved copy of said entry as Ex PW3/A. He further deposed that on 03.12.1,1 out of 178 patties, 173 patties of catchu(Katha) were released on superdari as per order of the Court of Ld MM and he made entry in this regard at serial no. 611 in register no. 19 and proved copy thereof as Ex PW3/B. This witness has not been cross examined by accused persons despite grant of opportunity.
PW7 namely HC Suresh Chand and PW9 SI Ravinder : Both these witnesses reached the place of occurrence on receipt of information vide DD no. 16A in PS Alipur regarding the incident, on 17.11.11 at about 10.00 A.M. Both these witnesses deposed that when they reached the place of occurrence, complainant Vinod Kumar Yadav, owner namely Sh Mahesh Mehta, driver Santosh Jha and Paledar Sardar Mal Yadav met them. SI State V/s Naveen etc. ("convicted U/s 411/34 IPC") Page 9 of 17 FIR No. 388/11; U/s 392/395/412 IPC; P.S. Alipur D.O.D.10.11.2014 Ravinder recorded statement Ex PW5/A of Vinod Kumar Yadav on the basis of which he prepared rukka Ex PW9/A and got the FIR registered at PS Alipur.
PW9 further deposed that he had also prepared rough site plan Ex PW9/B at the instance of complainant Sh. Vinod Kumar Yadav and made efforts to search for the offenders but no clue was found. Thereafter, investigation was transferred to SI Neeraj on the same day.
Both these witnesses have also been cross examined on behalf of both the accused persons.
It may be mentioned here that during the course of trial, Ld Additional PP dropped PWs namely HC Sanjeev Tyagi and HC Pusphender on 04.04.14 as the testimonies of said two witnesses were of repetitive nature as PW1 Ct. Mahasher Ali and IO SI Neeraj had already been examined/cited by prosecution for the same purpose.
ARGUMENTS ADVANCED CASE LAW CITED Ld Additional PP argued that prosecution has been able to establish its case against the accused persons in view of the testimonies of public witnesses namely PW5 Sh Vinod Kumar Yadav, PW6 Sardar Mal Yadav and PW8 Santosh Jha as all three of them have deposed on the lines of prosecution story during trial and have also identified the case property. He further argued that all the said three witnesses have also identified the case property i.e Ex P1 to Ex P5 which is part of the case property in respect of which dacoity was committed on 17.11.11. Therefore, accused should be State V/s Naveen etc. ("convicted U/s 411/34 IPC") Page 10 of 17 FIR No. 388/11; U/s 392/395/412 IPC; P.S. Alipur D.O.D.10.11.2014 convicted in this case.
Per contra, Ld Amicus Curiae vehemently argued that prosecution has failed to establish the offences U/s 395 and Sec. 412/34 IPC against the accused persons as none of the public witnesses identified accused herein to be the offenders involved in the commission of offence. Ld Amicus Curiae further argued that only four persons have been arrested/apprehended in this case during the course of investigation whereas there should be five or more persons for the purpose of attracting the offence of dacoity under the law.
It is well settled principle of law that an essential element of offence of dacoity is that five or more persons must conjointly commit or attempt to commit robbery(Reliance placed on AIR 1957 SC 320, 1992 Cr.LJ 3819 and AIR 1962 Manipur 7). It also needs no emphasis that actual participation by every one of the five or more persons in commission of the robbery whether as major actors or aiders, is necessary for the purpose of attracting offence U/s 395 IPC. Still if any authority is required then reference with advantage can be made to judgment reported at AIR 1973 SC 760. In other words, there must be some material available on record in order to show that there was assembly of atleast five persons in order to constitute the offence of dacoity.
It has been held by Hon'ble Apex Court in the judgment titled as "Maan Singh Vs. State of M.P" reported at 1993 Cr.LJ 3669(S.C) that merely because certain stolen articles were recovered from the accused, they cannot be held to be decoits unless there is a recent possession.
Similar is the position with regard to offence U/s 412 IPC which State V/s Naveen etc. ("convicted U/s 411/34 IPC") Page 11 of 17 FIR No. 388/11; U/s 392/395/412 IPC; P.S. Alipur D.O.D.10.11.2014 also requires that stolen property must be recovered from the conscious possession of the accused persons having knowledge or reason to believe that the same was transferred by commission of dacoity or that the said property belong to a gang of dacoits.
In the case in hand, it is an undisputed fact that only four persons were arrested/apprehended by the police on 18.11.11. Although, Ld Additional PP urged that it is immaterial that their 5th associate could not be arrested by the police but I am unable to convince myself to accept the said submission in order to attract offence U/s 395 IPC against the accused herein. Moreover, none of the public witnesses namely PW5 Sh Vinod Kumar Yadav, PW6 Sardar Mal Yadav and PW8 Sh. Santosh Jha could identify any of the accused herein to be the offenders involved in the commission of offence. All the said three public witnesses deposed that the faces of assailants were covered with clothes due to which they did not have any occasion to see their faces and that is why, they cannot identify them.
In view of the discussion made herein above and the evidence which has come on record as discussed in the preceding paras, Court agrees with the submission made by Ld defence counsel that prosecution has not been successful in establishing the charges in respect of offence U/s 395 IPC or Section 412/34 IPC against the accused persons. It is held accordingly.
At the same time, it cannot be over looked that there has been recovery of 178 bags of catchu(katha) from the possession of accused herein on 18.11.11 from Mahesh Farm House situated at Palla Bhaktawar Pur Village, Delhi. Although, Ld defence counsel argued that recovery of case property State V/s Naveen etc. ("convicted U/s 411/34 IPC") Page 12 of 17 FIR No. 388/11; U/s 392/395/412 IPC; P.S. Alipur D.O.D.10.11.2014 from the possession of accused, is doubtful as no independent public witness has been joined by the police at the time of its recovery but the said argument does not carry any force for the simple reason that those bags are shown to have been recovered during late night hours from inside farm house at the instance of secret informer. Thus, it cannot be expected from the police to arrange for independent public witness in order to witness the recovery proceedings. In the absence thereof, recovery of such huge amount of case property cannot be viewed with suspicion.
Law is not that testimony of police officers is absolutely untrustworthy or that it can never be acted upon. Rather, the law is that even the testimony of a police officer can be acted upon and a conviction can be based on such testimony if the testimony is unimpeached and found to be trustworthy.
Hon'ble Supreme Court in Anil @ Andya Sadashiv Nandorkar Vs. State J. T. 1996 (3) SC 120 has held that testimony of the police officials cannot be discredited merely because they are police officials if otherwise, their testimony is found to be cogent, trustworthy and reliable.
Hon'ble Supreme Court in Akmal Ahmad Vs. State of Delhi J. T 1999 (2) SC 388 held that ''it is now well settled that evidence of search and seizure made by police will not become vitiated only for the reasons that the evidence is not supported by independent witnesses.'' In the matter titled as "State, Govt. of NCT of Delhi Vs. Sunil & Anr" reported at(2001) 1 SCC 652, Hon'ble Supreme Court held as under: State V/s Naveen etc. ("convicted U/s 411/34 IPC") Page 13 of 17 FIR No. 388/11; U/s 392/395/412 IPC; P.S. Alipur D.O.D.10.11.2014 This Court examined a similar issue in a case where no person had agreed to affix his signature on the document. The Court observed that it is an archaic notion that actions of the police officer should be viewed with initial distrust. At any rate, the Court cannot begin with the presumption that police records are untrustworthy. As a proposition of law the presumption should be the other way around. The wise principle of presumption, which is also recognized by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through crossexamination of witnesses or through other materials, to show that the evidence of the police officer is unreliable. If the Court has any good reason to suspect the truthfulness of such records of the police the Court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action is unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.
In the matter titled as "Laxmibai (dead) Thr. L.Rs. & Anr. Vs. Bhagwantbhuva (dead) Thr. L.Rs. & Ors.," reported at AIR 2013 SC 1204, Hon'ble Apex Court held as under: State V/s Naveen etc. ("convicted U/s 411/34 IPC") Page 14 of 17 FIR No. 388/11; U/s 392/395/412 IPC; P.S. Alipur D.O.D.10.11.2014 "Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being unture. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to crossexamine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, interalia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version or events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses.
Moreover, part of the robbed property is shown to have been recovered immediately after commission of offence of robbery as the robbery is shown to have been committed during intervening night of 17/181111 and State V/s Naveen etc. ("convicted U/s 411/34 IPC") Page 15 of 17 FIR No. 388/11; U/s 392/395/412 IPC; P.S. Alipur D.O.D.10.11.2014 part of the robbed property is shown to have been recovered during the intervening night of 18/191111 from the possession of accused herein. The entire recovered property were found having mark of "MWP" and same were identified by complainant Sh Vinod Kumar Yadav(PW5) as also by owner Sh. Mahesh Mehta(PW4) immediately at the place of their recovery itself after they arrived at the said place, on being informed by the police. The accused persons could not impeach the testimonies of recovery witnesses i.e PW1 Ct. Mahasher Ali and PW9 SI Neeraj on the aspect of recovery of said goods from the possession of accused, through litmus test of cross examination.
Furthermore, there is a presumption of law in favour of prosecution and against the accused persons as provided in Section 114(a) of Evidence Act which expressly provides that whenever any person is found in possession of stolen goods soon after the theft, Court may presume that such person is either the thief or he had received the goods knowing them to be stolen, unless such person can account for his possession. It goes without saying that accused herein have failed to rebut the said presumption accruing in favour of the prosecution either by way of cross examination of prosecution witnesses or otherwise. Both the accused have also not produced any evidence in their defence.
In view of the aforesaid discussion, Court is of the view that prosecution has been successful in establishing on record that both the accused herein were found in conscious possession of part of the robbed goods i.e 178 bags of catchu(Katha) having knowledge or reason to believe the same to be part of the robbed property and thus, they are held guilty of State V/s Naveen etc. ("convicted U/s 411/34 IPC") Page 16 of 17 FIR No. 388/11; U/s 392/395/412 IPC; P.S. Alipur D.O.D.10.11.2014 committing offence U/s 411/34 IPC.
In the light of aforesaid discussion, both the accused namely Naveen and Jitender are acquitted in respect of offence U/s 395 IPC and Section 412/34 IPC. However, both the said accused are hereby convicted for offence U/s 411/34 IPC.
Announced in open Court today
dt. 10.11.2014 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s Naveen etc. ("convicted U/s 411/34 IPC") Page 17 of 17