Delhi District Court
State vs . (1) Jahangir on 13 May, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 111/2013
Unique Case ID: 02404R0121862010
State Vs. (1) Jahangir
S/o Sheikh Aalam
R/o Jhuggi No. 220/N38,
CD Park, Jahangirpuri, Delhi.
(Convicted)
(2) Mithun
S/o Pratap Singh
R/o Village Rutha, PS : Jahangira
Bad, Distt.: Bulandsehar, U.P.
(Convicted)
(3) Samkul
S/o Islam Babu
R/o Jhuggi No. C118,
Jahangirpuri, Delhi.
(Convicted)
(4) Mangat Ram
S/o Lala Hans Raj
R/o Jhuggi No. G901
Jahangirpuri, Delhi.
(Convicted)
(5) Bimlesh
S/o Mulak Raj
R/o Village Jammaluddinpur
State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 1 of 63
PS : Safepur, Distt.: Unna, U.P.
(Convicted)
(6) Javed
S/o Babu Khan
R/o E631, Jahangirpuri, Delhi.
(Convicted)
(7) Gautam Manna
S/o Sindhu Yadav
R/o Jhuggi No. 488, G Block,
Jahangirpuri, Delhi.
(Convicted)
(8) Vikram
S/o Birju Thakur
R/o Jhuggi No. G933,
Jahangirpuri, Delhi.
(Convicted)
(9) Mohd. Babul
S/o Abdul Kalam
R/o H. No. 344, Tejpal Ka Makan
Gali No. 3, Wazirabad, Delhi.
(Convicted)
FIR No. : 45/2010
Police Station : Ashok Vihar
Under Section : 392/395/397/458/412 Indian Penal Code.
Date of committal to Sessions Court : 12.07.2010
Date on which orders were reserved : 03.04.2014
Date on which judgment pronounced : 13.05.2014
State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 2 of 63
JUDGMENT :
Brief Facts:
(1) As per the allegations, on 23.02.2010 at about 03:30 AM at A122, Wazirpur Industrial Area, Ashok Vihar, Delhi, the accused Jahangir, Mangat Ram, Vikram, Samkul, Bimlesh and Mohd. Babul along with co accused Dilawar (since nor arrested), in furtherance of their common intention, committed dacoity of copper transformer, computer, TV and other articles of copper from Tejender Electrical Works situated at the aforesaid place, by overpowering the guards namely Hari Ram and Manoj and helper Ashok Kumar, after house trespass in the aforesaid factory belonging to the complainant Navneet Singh Arora. It is further alleged that while committing the aforesaid dacoity, the accused Jahangir, Mangat Ram and Vikram also used deadly weapon i.e. knives.
(2) Further, it has been alleged that on 24.02.2010 at about 9:00 PM at Siraspur Picket, within the jurisdiction of Police Station Samaipur Badli, the accused Mithun, Samkul, Bimlesh, Mangat Ram and Mohd. Babul, were found in possession of stolen property i.e. one inch wide copper patti in the shape of bundle (20 pieces), copper wire black colour (one bundle, weighing about 40 kg.), think copper wire bundle weighing about 20 kg, copper patti (round shape 7 bundles), two copper dimmer; 12 pieces of brass in a plastic bag, 55 pieces rod of copper and brass with two copper patti; 215 pieces of symbol, copper wire (two bundles); copper wire gitti (small and large) 9 in number; thick copper wire gitti four in number (small and large' and 4 State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 3 of 63 copper patti rolls belonging to the complainant Navneet Singh Arora, which they dishonestly retained knowing or having reason to believe that the possession of the same had been transferred by the commission of dacoity. (3) It has also been alleged that on 04.04.2010 at G488, G Block Jhuggi, Jahangirpuri, Delhi, the accused Gautam @ Manna was found in possession of stolen property i.e. "one brass piece 'Sterco' 15 KVA and two other pieces of brass (without make)" belonging to the complainant Navneet Singh Arora, which he dishonestly retained knowing or having reason to believe that the possession of the same had been transferred by the commission of dacoity. Further, on 13.04.2010 at G933, Jhuggi, Jahangirpuri, Delhi, the accused Vikram was found in possession of stolen property i.e. "two pieces of 'Sterco' 15 KVA" belonging to the complainant Navneet Singh Arora, which he dishonestly retained knowing or having reason to believe that the possession of the same had been transferred by the commission of dacoity.
(4) It is also alleged that on 24.02.2010 at Godown situated at Swaroop Nagar Extension, behind Bhalaswa Dairy, the accused Javed was found in possession of stolen property i.e. "two pieces 'Sterco' 35 KVA, four pieces of Sterco 15 KVA and one similar type of piece" belonging to the complainant Navneet Singh Arora, which he dishonestly retained knowing or having reason to believe that the possession of the same had been transferred by the commission of dacoity.
State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 4 of 63 (5) It is further alleged that on 24.02.2010 at Jhuggi No. 220/N28, CD Park, Jahangirpuri, Delhi, the accused Jahangir was found in possession of stolen property i.e. "six pieces of 'Sterco' 15 KVA"
belonging to the complainant Navneet Singh Arora, which he dishonestly retained knowing or having reason to believe that the possession of the same had been transferred by the commission of dacoity.
Case of Prosecution in brief:
(6) The case of prosecution in brief is that on 23.02.2010 on receipt of DD No. 5A, SI Naresh Kumar along with Ct. Jitender reached at the spot i.e. A122, Wazirpur Industrial Area, Ashok Vihar and found the articles in the factory in scattered condition. SI Naresh Kumar recorded the statement of the owner of the factory namely Navneet Arora who alleged that he is running a factory by the name of Tejender Electric works at A122, Group Industrial Area, Wazirpur, Delhi and on 23.02.2010 at about 3.10 AM he received a telephonic message from his helper Ashok Kumar Upadhyaya that four - five assailants came to the factory who were having knives and have committed theft in the factory and asked him to reach there immediately on which he reached the factory at around 3.30 AM and found that articles of the factory lying scattered and he assessed the factory articles and found that about 1000 kgs. of copper and brass articles were taken away from the factory. He further alleged that he was also informed by the guard and the helper of the factory that the assailants had entered the State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 5 of 63 factory and he they (helper and guard) were tied and beaten by those persons who took away articles with them and also caused damaged to furniture and glass of door and wooden doors etc. (7) On the basis of the statement of complainant, a rukka was prepared and FIR was registered. During investigations, the accused persons were arrested and after completing the investigations, charge sheet was filed in the court.
CHARGE (8) Charge under Section 395/458/34 Indian Penal Code was settled against the accused Jahangir, Mangat Ram, Vikram, Samkul, Bimlesh and Mohd. Babul. Charge under Section 397 Indian Penal Code was settled against the accused Jahangir, Mangat Ram and Vikram. Further, charge under Section 412 Indian Penal Code was settled against all the accused Jahangir, Mithun, Samkul, Mangat Ram, Bimlesh, Javed, Gautam Manna, Vikram and Mohd. Babul. All the accused have pleaded not guilty and claimed trial.
EVIDENCE (9) In order to discharge the onus upon it, the prosecution has examined as many as twelve witnesses.
Public Witnesses:
(10) PW1 Navneet Arora has deposed that he was running a factory State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 6 of 63 by the name of Tejindra Electrical Works at A122, Group Industrial Area, Wazir Pur, Delhi. On 23.02.2010 at around 3.10 am, he received a telephonic message from his helper namely Ashok Kumar that a theft had been committed in the factory and he asked him to reach there immediately.
According to the witness, he (witness) reached at the factory at around 3:30 AM and found that articles of the factory lying scattered. He assessed the factory articles and found that about 1000 kgs of copper and brass articles were taken away from the factory. He further stated that he was also informed by his helper that 89 persons entered the factory and he along with two security guards were tied and beaten by those persons. They took away the aforesaid articles with them and also caused damage to furniture and glass of door and wooden doors etc. According to the witness, Police was already present there when he reached at the factory and he made statement to the police regarding the aforesaid fact which statement is Ex.PW1/A. The witness has deposed that police inspected the factory and prepared site plan of the factory at his instance and he also handed over details of articles which were missing from the factory after the incident which list is Ex.PW1/B. The witness has deposed that besides copper and brass, the gun metal, bear copper, wire copper, laminated copper, copper casting, aluminium casting etc. were found missing and the approximate value of the missing articles from the factory was around Rs.6 lacs. (11) Witness has deposed that on the next day, he was informed by the police that some persons were apprehended by them regarding the State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 7 of 63 incident and he was asked to identify the articles which were missing from the factory. According to the witness, first, he identified some articles, the details of which he had mentioned above, in the court premises. The witness has deposed that on 04.04.2010, he accompanied the police to Shalimar Bagh to the house of one of the accused Gautam from where three pieces of copper and brass were recovered and same were taken into possession by the police vide memo Ex.PW1/C. The witness has further deposed that on 13.04.2010, he again joined investigation of the present case with police and accompanied the police to Jhuggi area of Jahangir Puri from where the police recovered two pieces of brass from the Jhuggi of accused Vikram and the same were taken into possession vide seizure memo Ex.PW1/D. According to the witness, he got released the articles which were recovered by the police on Superdari after taking orders from the Court. (12) The witness has identified in the court the case property i.e. one T Plate of gun metal and copper U and one bracket of gun metal Ex.P1 (collectively) as the same which were recovered in his presence from the accused. He has further identified two copper U Plates which are Ex.P2 (collectively) as the same which were recovered in his presence from the accused. Three copper U are having the mark of "Sterco" (i.e. brand name of complainant). The witness has also identified the sample articles which includes (i) Enamel copper wire of black colour and yellow colour, (ii) copper foil one piece, (iii) gun metal one piece, (iv) brass arm of different size (two pieces), (v) copper U (two pieces) of different pieces, (vi) copper State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 8 of 63 wire (cotton coated) one piece, (vii) copper sibble two pieces, (viii) copper strips (one piece), which are Ex.P3 collectively. The witness has not produced in the court the case property released to him by the Ld. MM and has stated that the same has been utilized. However, eleven photographs were produced by the IO SI Naresh Kumar which were shown to the witness who identified the photographs and stated that they are the photographs of the recovered goods which were stolen from his factory. The photographs are Ex.PW1/E1 to Ex.P1/E11. The witness has seen 24 photographs of his factory which were taken after the incident and the same are Ex.PW1/E12 to Ex.PW1/E35. He further deposed that he had handed over computer generated attested copies of the bills of the goods to the police which are Ex.PW1/F (collectively). Witness has identified the accused Gautam and Vikram in this court.
(13) This witness has not been cross examined on behalf of the accused Javed, Mithun, Babul, Mangat Ram, Vimlesh and Shamkul despite opportunity given.
(14) In his crossexamination on behalf of accused Jahangir and Vikram, the witness has deposed that he was called to the Police Station on 13.04.2010 by the police officials and he remained in the Police Station for about one or two minutes. Witness has denied that recovery memo Ex.PW1/D was prepared at the Police Station or that he had signed the said memo at Police Station. He does not remember if any other person had State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 9 of 63 signed as witness to the memo. According to him, there was one small room on the first floor of the jhuggi and people from the adjoining jhuggis also gathered at the spot. He does not know whether any identity proof or residence proof was obtained from accused Vikram. He has stated that no person from the neighbouring jhuggis was joined in the investigation but IO had made enquiry from some persons and is not aware if IO had recorded statement of any of those persons. He has denied that recovery was not effected in his presence. According to the witness, the recovered pieces of brass were kept in a cloth and were sealed but no identification mark was put on the recovered brass pieces as nothing could be written over them nor any slip was pasted on those brass pieces. The witness has deposed that date of manufacturing is not mentioned on the goods manufactured in his factory. He admits that similar kind of copper Uplated like Ex.P2 are available in his factory. He has denied that he had handed over the brass pieces / Iplates Ex.P2 later on from his factory to the police which were later planted on accused Vikram. He has further denied that he had signed the documents at Police Station. Witness has deposed that he does not sell the components manufactured in his factory directly but only fits them into the machines. He further deposed that similar copper Uplates bear the mark of Sterco.
(15) The witness has further deposed that he had given the statement to the police regarding theft at his factory and also given supplementary statements to the police on 08.03.2010, 04.04.2010 and 13.04.2010. He does State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 10 of 63 not know whether police had obtained the signatures of any public witness on the memo Ex.PC1/C. He deposed that apart from him, IO had signed the seizure memo but perhaps signature of one public person was also taken on the memo Ex.PW1/C however he expressed his inability to tell the names of public persons present there. He further deposed that recovery was effected from the room on the first floor of the house. He expressed his inability to tell the width of the gali where the house was situated and deposed that there were houses on both side of the house from where the recovery was effected and states that his statement was recorded by the police at the spot. He expressed his inability to tell whether IO recorded statement of any other witness. He has denied that no investigation was conducted at the spot or that all the writing work was done at the Police Station. Witness has denied that no recovery was effected from accused Gautam in his presence or that he had deposed falsely at the instance of IO. (16) PW3 Manoj Singh has deposed that on 22/23.02.2010 he was working as Guard in transformer making factory at A122, Wazirpur Industrial Area. According to the witness, on the night of 22.02.2010 - 23.02.2010 he and Hare Ram were on duty between 8 pm to 8 am at the main gate and they were sitting inside the gate after locking the gate and at about 11 pm, Ashok Kumar Upadhyaya, who was working as labourer in the factory, was also sitting with them and while they were sitting together, at about 11:30 PM three boys jumped inside from the gate with knives in their hands and took them in a room on the first floor of the factory. According State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 11 of 63 to the witness, three more boys had also jumped inside the factory from the gate and they (witness) were asked not to raise noise / alarm and were threatened that they would be killed if they raise the noise and one of the boys kept guard on them with knife. The witness has deposed that at about 3 pm, that boy left them and they heard the noise of a moving tempo and thereafter, they saw that glasses of the factory were broken and the goods were lying scattered. The witness has further deposed that the locks of the door were also lying open. According to the witness, Ashok Kumar informed the factory owner telephonically and the factory owner Navneet came in the factory after sometime.
(17) The witness has pointed out towards the accused Jahangir, Samkul and Mangat Ram and identified them as the three boys who took them (witness) on the first floor. Witness could not identify the other accused in the court.
(18) Ld. Addl. PP for the State put the accused Vikram, Bimlesh and Mohd. Babul to the witness but the witness showed his inability to identify them as the persons who jumped inside later, on the date of incident. On specifically asking from the witness, he has stated that he could not identify the above said three accused as they jumped inside later on and at that time he was under threat as the accused persons had already shown him the knife, prior to the said three accused jumped inside.
(19) In his crossexamination on behalf of accused Mangat Ram, the witness has denied that there was darkness at the place where they were State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 12 of 63 sitting near the gate and has voluntarily added that there was light. He has denied that he was under threat and unconscious while he was caught by accused as such he could not see the person who caught him or kept under threat. He has further denied that the name of accused Mangat Ram was told him by the IO later on and he had not seen him at the time of incident. Witness has denied that he had seen accused Mangat Ram in the Court first time and he was never present at the time of incident. He has admitted that he had not seen the accused Mangat Ram prior to the incident. He has also admitted that he had seen accused Mangat Ram that day for the first time after the incident. According to the witness his statement was recorded in the intervening night of 22.02.2010 / 23.02.2010 at the place of incident. He has deposed that he had not given the description of accused Mangat Ram in his statement under Section 161 Cr.PC. Witness has admitted that his statement was recorded only once and thereafter his statement was not recorded again. He has deposed that he was not directly employed by the factory and states that he was working through security agency. He has further stated that he had not shown any document to the effect that he was working there on 22/23.02.2010 and has voluntarily added that he used to mark his attendance in register kept at the factory and that his attendance sheet was thereafter taken by the person of security agency. Witness has denied that he was not on duty in the intervening night of 22/23.02.2010 at the above said factory. He has denied that he was never deputed on duty in the above said factory at any point of time. Witness has denied that he had State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 13 of 63 no personal knowledge about the incident or that whatever he had stated is based on hearsay or that he was compelled to make such statement on the instance of police officials.
(20) During his crossexamination on behalf of accused Jahangir and Mohd. Babul, the witness has deposed that he was working in the above said factory since one and a half years back from the incident. He has deposed that he was not issued any ICard either from the said factory or from the security agency i.e. DS Securities. According to him he was provided uniform from the security agency and on the day of alleged incident, he was in proper uniform. He has deposed that earlier he was deputed at the same place by the security agency and thereafter he was deputed in the said factory. He has further deposed that he used to mark his attendance in a copy provided by security agency and the said copy used to remain in his custody. According to the witness, the agency person used to tear the sheet of the month from the said copy and did not take away the whole copy. He has deposed that the said agency person did not supply any photocopy of the said torn sheet in the factory. The witness has deposed that the factory owner did not make any counter signatures on the attendance sheet. According to the witness, he had signed his statement recorded by the IO in Hindi and did not append the date underneath his signature on the statement. He expressed his inability to tell the height of the gate of the factory from which the accused persons had jumped but states that no sharp edged objects (bhalas) were affixed on the said gate. He has further State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 14 of 63 deposed that his duty was to sit on the gate as well as to take rounds in the factory. According to the witness, neither the police official asked from him regarding the evidentiary proof of his duty nor he himself handed over the same to the IO. He has admitted that their factory was situated in the Industrial Area.
(21) The witness has further deposed that sometimes the electric supply used to be discontinued and sometimes it continued frequently in the area. He has denied that on the day of alleged incident, he was not present on duty or that he did not handover the proof of his presence in the factory at the time of alleged incident he was not present on his duty. He has also denied that he did not handover the proof of his presence in the factory at the time of alleged incident deliberately as he was not on duty on that day. Witness has deposed that he had visited the police station only once in connection of the present case. He has denied that he had seen the accused for the first time in the Court. He deposed that he had identified the accused at the instance of IO when they were entering the Court room or that he had been briefed by the IO who was sitting outside the Court. The witness was not crossexamined on behalf of accused Javed, Mithun, Samkul, Gautam, Vikram and Bimlesh.
Police / Official Witnesses:
(22) PW2 HC Naresh Kumar has deposed that on 23.02.2010 he was posted as Head Constable at Police Station Ashok Vihar and doing the State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 15 of 63 job of Duty Officer from 12:00 AM to 8:00 AM and on that day, he recorded DD No.5A on the basis of information received from police control room copy of which is Ex.PW2/A. The witness has deposed that on the aforesaid date, he also recorded FIR No.45/10 under Section 395 IPC of the present case and proved computerized copy of the same as Ex.PW2/B. (23) In his crossexamination on behalf of accused Mangat Ram and Vikram, the witness has denied the suggestion that the FIR is antedated and antetimed of that he had not recorded the FIR as deposed or that he had deposed falsely. He was not cross examined on behalf of rest of the accused persons despite being given an opportunity.
(24) PW4 HC Mahender has deposed that on 24.02.2010, he was working as Duty Officer at Police Station Ashok Vihar and his duty hours were from 12:00 midnight to 8:00 am. According to the witness, on that day at about 7:30 AM, he received a telephonic call from HC Begh Raj that five boys were apprehended with a tempo loaded with copper and brass articles under Section 41.1(D) Cr.PC and the boys had also confessed that the articles were stolen from factory at Wazir Pur Industrial Area. He has further deposed that he had recorded the DD No.9A in this respect and the same was entrusted to ASI Naresh Kumar for further investigation. He proved DD No.9A as Ex.PW4/A. (25) In his crossexamination the witness has denied that he had not received the telephonic call or that DD entry Ex.PW4/A is a manipulated State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 16 of 63 one. He has deposed that no time of apprehension of the boys was informed by HC Begh Raj.
(26) PW5 SI Sandeep has deposed that on 23.02.2010, he was posted as SI at Police Station S.P. Badli and on that day, he along with HC Beghraj, Ct. Narender, Ct. Deepti and Ct. Karam Singh were present at Police Picket Siraspur and were checking the vehicles. He has further deposed that at about 9:00 PM, one tempo bearing No. DL1LE1350 came from the side of Mukarba Chowk and was going towards Singhu Border and same was directed to stop by HC Beghraj for checking. The witness has deposed that three persons were found sitting at the front seat of cabin of tempo, two other persons were found in the said tempo along with the bundles of brass wire as well as loose brass wires. The witness has deposed that all the persons were asked to came down from the said tempo and asked about the goods in the said vehicle and on inquiry, first they avoided to tell anything but thereafter, those persons told that the said bundles of brass wires were stolen by them from Wazirpur Industrial Area. The witness has further deposed that during checking of tempo, a long size cutter used for cutting locks and two daggers were also found. According to witness, HC Beghraj interrogated those persons separately and arrested them under Section 41.1 Cr.PC. The witness has deposed that the driver of said tempo disclosed his name as Mithun and two boys Mangat and Shankul were sitting by the side of driver. Witness does not remember the names of persons who were sitting on the back of tempo along with bundles of wires.
State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 17 of 63 According to the witness, the brass / copper wires were seized vide seizure memo Ex.PW5/A and the sketch of both the daggers were prepared separately and thereafter, both the daggers and cutters were seized vide seizure memo Ex.PW5/B. Witness has further deposed that the said tempo was also seized vide seizure memo Ex.PW5/C and all the accused persons were arrested vide arrest memos Ex.PW5/D to Ex.PW5/H and all the accused persons made their respective disclosure statements which are Ex.PW5/J1 to Ex.PW5/J4.
(27) The witness has only identified the accused Mohd. Babul in the court. He wrongly identified accused Javed as accused Mithun as the driver of tempo. The has witness stated that he cannot identify other three accused persons.
(28) In his crossexamination by Ld. Addl. PP, the accused Mangat Ram, Mithun, Bimlesh, Samkul were shown to the witness and pointed out by Ld. Addl. PP by their names and only after this, the witness identified these accused.
(29) The witness has identified two daggers and one cutter as same which were recovered from the tempo. The cutter is Ex.P1 and two daggers are Ex.P2 and Ex.P3. The sample piece of case property is collectively Ex.P3. This court has observed that the remaining case property having being released on superdari, photographs of which were shown to the witness which were on judicial file, witness correctly identified the same State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 18 of 63 articles which were recovered from the tempo and also identified the articles as shown in photographs. The same were Ex.PW1/E1 to Ex.PW1/E11. The witness has identified the two dragger and cutter. The cutter is Ex.P4 and daggers are Ex P5 & Ex P6. The witness has deposed that he can identify the said tempo but the same was on superdari and identity of the same was not disputed.
(30) In his crossexamination, the witness has deposed that they all left the Police Station SP Badli at about 7:30 PM, HC Begh Raj made departure daily diary, however he cannot tell the DD number. He has further deposed that he cannot tell the name of the Duty Officer who recorded the same. He has deposed that all the officials were on their private vehicles. He has further deposed that they reached at the spot at about 8:00 PM. According to the witness, he was not carrying any weapon at that time. He is unable to tell if any other official was carrying weapons. He does not remember the colour of clothes worn by accused Mangat. He further deposed that they have checked about 1520 vehicles prior to checking of the vehicle at that time and there was heavy traffic movement on the road. He has further deposed that they conducted the checking on the road which passes towards village Siraspur. He does not remember the number of tempos thoroughly checked by them prior to checking the tempo in question. He further deposed that he did not stop any other vehicle than the tempo in question nor he asked any public person to join investigation at any stage of investigation. He has further deposed that first of all arrest memo of accused State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 19 of 63 Mithun was prepared by HC Begh Raj and the writing work was done while sitting on a stool under the street light on the spot. He has further deposed that it took about one and half hour in preparing the documents. According to the witness, the writing work was done in the presence of all the police officials and accused persons. He has further deposed that sketch of daggers were prepared in his presence by HC Begh Raj. He has deposed that no officials had signed the sketch as an attesting witness. According to the witness the recovered daggers were not measured by HC Begh Raj. He has further deposed that they remained at the spot till 12:30 AM. According to the witness, during the said period, none of the officials left the spot. He has admitted that accused persons were not known to him prior to their apprehension. Witness has refused to be aware as to whom HC Begh Raj has conveyed the information regarding the arrest of accused persons. He has deposed that he signed the arrest memo of accused persons. Witness has denied that he signed all the memos at the police station on the asking of IO and without going through the contents of the same. According to the witness, the disclosure statements of accused persons were recorded separately. He does not remember the sequence of the disclosure statement of accused persons. He has further deposed that no finger prints were lifted from the daggers in his presence.
(31) Witness has denied that he was deposing falsely at the instance of IO or that the accused Mithun was lifted from Patparganj Industrial area and falsely implicated in the present case. He has further denied that State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 20 of 63 accused Mangat Ram was lifted from Jahangir Puri and falsely implicated in the present case or that the accused Bimlesh was lifted from Budh Pur and falsely implicated in the present case. Witness has further denied that accused Babul was lifted from Burari Chowk and falsely implicated in the present case.
(32) PW6 HC Vikas Kumar has deposed that on 23.02.2010, he was posted at Mobile Crime Team as Finger Print Proficient and on that day, on receipt of a call he had gone to the spot i.e. A122, Wazirpur Industrial Area, Ashok Vihar, Delhi where there was a burglary and T.V., computer and other electric articles were stolen in the intervening night. He has further deposed that he had taken chance print from the spot Q1 and Q2 from the empty mobile box kept on the table of the factory office and Q3 and Q4 from the glass gate of the office. According to the witness, the chance prints were taken after application of black powder and report was handed over to the IO. He has further deposed that he had conducted the proceedings between 4:10 AM to 5:30 AM. The witness has deposed that Const. Dalvir photographer was also with him. He has identified his report as Ex.PW6/A bearing his signature at point A. He further deposed that the chance prints were handed over to the office Finger Print Bureau. This witness was not crossexamined on behalf of the accused despite opportunity given.
(33) PW7 Ct. Narender has deposed that on 23.02.2010 he was posted at Police Station S. P. Badli and on that day he along with HC Begh State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 21 of 63 Raj, Ct. Deepti, Ct. Karam Singh and PSI Sandeep were present at Police Picket Siraspur and were checking the vehicles. He has further deposed that at about 9 PM, a tempo bearing No. DL1lE1350 came from the side of Mukarba Chowk and was going towards Sindhu Border and the said Tempo was directed to stop by HC Begh Raj. He has deposed that three persons were found sitting at the front side of the tempo and the tempo was being driven by Mithun (accused correctly identified by the witness). He has further deposed that accused Shamkul and Mangat were sitting by the side of accused Mithun (accused persons correctly identified by the witness). Witness has deposed that the accused Bimlesh and Babul were sitting on the back side of the tempo (both accused correctly identified by the witness). (34) The witness has deposed that the tempo was checked and on the back side of the tempo it was found to contain articles of copper and brass in a huge quantity. The witness has further deposed that HC Begh Raj asked about the possession of the articles but all the accused persons could not account for the possession of those articles. He has further deposed that when HC Begh Raj interrogated the accused persons then they disclosed about the stolen / looted the said items from Wazirpur Industrial area and they made their joint disclosure statement, same are Ex.PW5/J, Ex.PW5/J1 to Ex.PW5/J4. He has deposed that HC Begh Raj took search of the cabin of the tempo also and from the cabin two dragger and one cutter was recovered. He has deposed that the accused persons could not produce any permission regarding the dragger and the cutter also. State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 22 of 63 (35) The witness has deposed that HC Begh Raj prepared the sketches of the dragger and the same are Ex.PW7/A and Ex.PW7/B and thereafter IO took into possession the articles as mentioned in seizure memo which were in the back side of the tempo and the same were taken into possession vide memo Ex.PW5/A. He has further deposed that both the daggers and cutter were also took into possession by the IO vide memo Ex.PW5/B and the said tempo was also taken into possession vide memo Ex.PW5/C. The witness has deposed that prior to taking into possession the said articles and tempo HC Begh Raj confirmed from police station Ashok Vihar and it was found that the said articles had been looted from the jurisdiction of PS Ashok Vihar and it was found that a case has already been registered qua the said incident.
(36) According to the witness, thereafter HC Begh Raj arrested the accused Mithun, Shamkul, Mangat Ram, Bimlesh and accused Babul vide memos Ex.PW5/D to Ex.PW5/H, their personal search were carried out vide Ex.PW5/H1 to Ex.PW5/H5. The witness has deposed that thereafter he along with police party and the case property and the accused persons returned to the Police Station and HC Begh Raj deposited the case property with MHC (M) and on next day all the five accused persons were produced before the Illaka Magistrate and were sent to JC. The witness has also identified the case property which was produced in the court. State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 23 of 63 (37) In his crossexamination on behalf of accused Mithun, the witness has deposed that he joined his duties on the day of incident at about 4 PM and he was checking the vehicles in the routine. He has further deposed that there was no check post where the tempo was stopped. According to him they had put the barricades at the place where the said tempo was stopped and it was a routine checking and it depend on the circumstances as to how many police personals be deputed to check the vehicle. He has deposed that it was HC Begh Raj who stopped the said vehicle i.e. the tempo which was of bhura colour bearing number DL1L E1350. According to the witness, the cabin of vehicle was checked by HC Begh Raj and the back portion of the vehicle was checked by all 23 members of police party. He has further deposed that he personally did not check the cabin of the vehicle but was aware what was recovered from the cabin as when it was recovered he was there. He has deposed that only dragger and cutter were recovered from the cabin and no other article like iron rod or weapon was recovered. According to the witness, the accused person did not make or attempted or type of resistance and were duly co operative during search and investigation. He has deposed that accused persons did not produce any document regarding possession of articles. He has further deposed that the accused persons told them that these goods were stolen on the previous night. According to the accused, the information about the recovery of the said articles was given to senior officials (SHO of their Police Station and to PS Ashok Vihar) by HC Begh Raj. State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 24 of 63 (38) The witness had identified the accused Jahangir, Vikram, Mangat Ram, Vimlesh and Shamkool as the persons who were apprehended in his presence.
(39) On request of Addl. Public Prosecutor, the accused Jahangir and Vikram had been again shown to the witness and was asked to identify if these persons were present in the tempo, on which the witness has stated that Jahangir and Vikram were not present and states that on account of lapse of time he has got confused. Witness has expressed his inability to identify the remaining accused namely Mithun and Babul of his own. Thereafter, Mithun and Babul were put to the witness who has now identified them as the remaining two boys who were present in the tempo and states that due to lapse of time he was unable to identify accused Mithun and Babul.
(40) During his crossexamination on behalf of accused Bimlesh and Mangat Ram, the witness has deposed that they remained at the spot for about two to two and a half hours. According to the witness first HC Begh Raj prepared the site plan where the tempo was stopped. He has voluntarily stated that thereafter HC Begh Raj prepared the sketches of the dragger and cutter and he drive the tempo when it was taken to the police station. Witness has deposed that he information regarding arrest of accused Mangat Ram was given to his family members through messenger however he is unable to tell the name of the messenger. He has stated that there was no specific mark of identification on recovered article. He has further deposed State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 25 of 63 that IO had cited the police officials as attesting witness to the sketch of dagger. He has deposed that all the writing work was done by IO while sitting on the bench at Siraspur, Tpoint. Witness has admitted that accused persons were not known to him prior to the incident. He has denied that none of the above accused persons were apprehended in the tempo as stated by him or that the accused were falsely implicated in the present case after lifting from their respective houses. Witness has further denied that nothing was recovered from the accused persons or that the alleged recovery was planted upon them or that he can identify the accused persons as they were shown to him by the IO outside the court room. He further denied that accused persons were forced to sign on blank papers which were later on converted into certain incriminating documents against them or that he had signed the memos in the Police Station at the instance of IO. The above said witness was not crossexamined on behalf of rest of the accused persons. (41) PW8 HC Begh Raj has deposed that on 23.02.2010 he was posted at Police Station S.P. Badli and on that day he along with Ct. Narender, Ct. Deepti, Ct. Karam Singh and PSI Sandeep were present at police picket Siraspur and were checking the vehicles. According to the witness, at about 9 PM a tempo bearing No. DL1lE1350 came from the side of Mukarba Chowk and was going towards Sindhu Border which was directed to stop by him. The witness has deposed that three persons were found sitting at the front side of the tempo which was being driven by Mithun, (accused correctly identified by the witness). The witness has State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 26 of 63 deposed that accused Shamkul and Mangat were sitting on the back side of tempo (both accused correctly identified by the witness). According to the witness, the accused Bimlesh and Babul were sitting in the back side of the tempo (both accused correctly identified by the witness). (42) The witness has further deposed that the said tempo was checked and on the back side of the tempo it was found to contain articles of copper and brass in a huge quantity. According to the witness, he inquired from the accused persons about the possession of the articles but all the accused persons could not account for the possession of those articles. He has deposed that when he interrogated the accused persons, they disclosed about the stolen / looted the said items from Wazirpur Industrial area and they made their joint disclosure statement vide Ex.PW5/J, Ex.PW5/J1 to Ex.PW5/J4. He has further deposed that he took the search the cabin of the tempo also and from the cabin two dragger and one cutter was recovered. Witness has deposed that the accused persons could not produce any permission regarding the dragger and the cutter also. He has further deposed that thereafter he prepared the sketches of the dragger vide Ex.PW7/A and Ex.PW7/B and took into possession the articles as mentioned in seizure memo which were in the back side of the tempo and the same were taken into possession vide memo Ex.PW5/A. According to the witness both the daggers and cutter were also took into possession by him vide memo Ex.PW5/B and the tempo was taken into possession vide State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 27 of 63 memo Ex.PW5/C. The witness has deposed that prior to taking into possession the said articles and tempo, he confirmed from Police Station Ashok Vihar and it was found that the said articles had been looted from the jurisdiction of Police Station Ashok Vihar and it was found that a case has already been registered qua the said incident. The witness has deposed that thereafter he arrested the accused Mithun, Shamkul, Mangat Ram, Bimlesh and accused Babul, (all accused correctly identified by the witness) vide memos Ex.PW5/D to Ex.PW5/H and their personal search were carried out vide memos Ex.PW5/H1 to Ex.PW5/H5 respectively. He has deposed that thereafter he prepared a Kalandra u/s 41.1 (D) Cr.PC which is Ex.PW8/A and on reaching in the police station he made arrival entry and information regarding arrest of accused persons vide DD No. 3A is Ex.PW8/B. The witness has identified the case property which was produced in the court.
(43) In his crossexamination on behalf of the accused the witness has deposed that they left Police Station at about 7:30 PM vide departure entry No. 37A in five private vehicles. He is unable to tell the exact number of the vehicles they had checked prior to the tempo in question. He has further deposed that he did not maintain any record regarding the checking of vehicles on that day. He has admitted that there was heavy traffic on the road and has clarified. He states that they were checking the vehicle on service road.
State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 28 of 63 (44) He has further deposed that the driver of the tempo stopped the vehicle when they gave the signal to stop. He is unable to tell how many tempo he had thoroughly checked prior to the tempo in question. He has further deposed that he had not stopped any other vehicle at the time the tempo in question was stopped by him. According to the witness, it was around 9:00 PM at that time. He has deposed that the accused persons were interrogated at a police picket situated on the service road. He has further deposed that initially the disclosure statement of accused Mithun was recorded, afterwards, disclosure statement of accused Shamkul, Mangat Ram were recorded and later on perhaps the disclosure statement of accused Babul or Vimlesh was recorded. He has further deposed that when the disclosure statement of an accused was recorded, other coaccused persons were made to sit at a distance of about 24 feets. According to the witness, it took him about five minutes in recording the disclosure statement of one accused. He has deposed that he sent the information to Police Station Ashok Vihar through his mobile after recording the disclosure statement of the accused persons. He does not remember, by whom the cabin was searched or that the weapons were taken out. He has further deposed that he had asked some public persons to join investigation but none agreed but no legal notice was sent upon them. He is unable to tell the description, names and address of said persons. He has deposed that he did not measure the daggers recovered from the accused. He has admitted that accused persons were not known to him prior to the incident. He has denied that none of the State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 29 of 63 above accused persons were apprehended in the tempo as stated by him or that accused persons were falsely implicated in the present case after lifting from their respective houses. He has further denied that nothing was recovered from the accused persons or that the alleged recovery was planted upon them or that he can identify the accused persons as they were shown to him by the IO outside the court room itself or that the accused persons were forced to sign on blank papers which were later on converted into certain incriminating documents against them. He has further denied that he had signed the memos in the Police Station at the instance of IO or that he was deposing falsely at the instance of IO. He has further denied that accused Mithun was lifted from Patparganj Industrial area or that the accused Mangat Ram was lifted from Jahangir Puri or that accused Bimlesh was lifted from Budh Pur or that accused Babul was lifted from Burari Chowk and all of them have been falsely implicated in the present case. (45) PW9 Ct. Mohd. Afzal Khan has deposed that on 04.04.2010, he was posted as Police Station Ashok Vihar as Constable. He has further deposed that on that day, after the briefing of SHO, he along with Ct. Naveen and ASI Naresh, he took the accused Gautam to Shalimar Bagh at Gali No.7 for investigation. He further deposed that the accused led them to his house no.432, Gali No.7 on the first floor from where he took out three peetal / brass plates and handed over the same to IO. Witness has further deposed that Navneet Arora, the complainant was also with them and Sh. Navneet Arora identified the plates as those manufactured in his factory and State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 30 of 63 belonging to him and further informed that it was stolen on the intervening night of 22.02.2010 / 23.02.2010. He has further deposed that the said plates were converted into pullandas with the help of a cloth and sealed with the seal of 'NK' after which it was seized by the IO vide memo Ex.PW1/C. The witness has identified the accused Gautam. He has also identified the case property i.e. three plates (one T plate of gun metal, copper U and one bracket of gun metal) as the same which were got recovered from the house of accused Gautam. The same are Ex.P1 (collectively). (46) In his crossexamination on behalf of accused Gautam, the witness has deposed that they started from Police Station at about 10:00 AM and he along with Ct. Naveen, ASI Naresh Kumar and complainant Navneet Arora went to the spot and they reached the spot at about 10:30 AM. He has admitted that there were many other tenants in the premises. He states that the IO had asked those persons including neighbours to join the proceedings but they refused however he is unable to tell the names of the persons who had refused to join the proceedings. According to the witness, nobody from the family of accused Gautam was present at the spot. He has further deposed that when they went to the spot, the room of Gautam was not locked but was only latched (kundi lagi hui thi). He is unable to tell the exact spot from where the Gautam has got recovered the plates. He has denied that he cannot tell the details because he had not joined the proceedings on the first floor. He has further denied that all documentation regarding preparation of pointing out cum seizure memo was done while State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 31 of 63 sitting in police station or that he only signed on the asking of senior officers. According to the witness, the complainant Navneet Arora had accompanied them from the Police Station in his private car. Witness has denied that the accused Gautam had been falsely implicated in connivance with Navneet Arora or that nothing had been recovered from the house of accused Gautam. He has further deposed that he had read the seizure memo before signing the same. He was not crossexamined on behalf of remaining accused persons despite opportunity given.
(47) PW10 Ct. Naveen has deposed that on 04.04.2010, he was posted as Police Station Ashok Vihar as Constable and on that day, he along with IO and Ct. Mohd. Afzal and the complainant Navneet Arora took the accused Gautam to Shalimar Bagh at Gali No. 7 for investigations. He has further deposed that the accused led them to his house bearing no. 432, Gali No.7 on the first floor from where the accused took out three peetal / brass plates from the corner of his room and handed over the same to IO ASI Naresh. According to the witness, the complainant Navneet Arora who was also with them, identified the plates as those manufactured in his factory and belonging to him and were stolen on the night of 23.02.2010. The witness has deposed that the said plates were converted into pullandas with the help of a cloth and sealed with the seal of 'NK' after which it was seized by the IO vide pointing out cum seizure memo Ex.PW1/C. He has identified the accused Gautam and also the case property i.e. three plates (one T plate of gun metal, and copper U and one bracket of gun metal) as State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 32 of 63 those got recovered from the house of accused Gautam. The same are Ex.P1 (collectively).
(48) In his crossexamination on behalf of accused Gautam, the witness has deposed that they started from Police Station at around 10:00 AM. According to the witness, the complainant reached the spot at Shalimar Bagh in his private vehicle and he was with them from the Police Station and they reached the spot within 1520 minutes. He has deposed that the house was built up to two storeys and there were many other tenants in the premises but IO did not asked any tenant or neighbors or any other public person to join the proceedings in his presence. According to the witness, there were one or two persons present in the room of Gautam but he expressed his inability to tell whether they were from the family of Gautam or not. The witness has deposed that when they went to the spot, the room of Gautam was open and the plates were lying open in the corner of the room but IO did not take any photographs regarding the proceedings of the spot. Witness has denied that all documentation regarding preparation of pointing out cum seizure memo was done while sitting in police station and he only signed on the asking of senior officers. The witness has deposed that he was not aware as to who informed the complainant. He has denied that accused Gautam had been falsely implicated in connivance with Navneet Arora. Witness has deposed that he was not aware if Naveneet Arora was in to manufacturing or trading of these plates. This witness has not crossexamined on behalf of remaining accused despite opportunity. State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 33 of 63 (49) PW11 Ct. Jitender has deposed that on 23.02.2010 he was posted at Police Station Ashok Vihar and on that day on receipt of DD No. 5A, he along with ASI Naresh Kumar reached at A122, Wazirpur Industrial area where they met the owner of the factory and large number of labours. The witness has deposed that they informed that 89 boys had come to the factory and committed dacoity of large number of brass plates. According to the witness, ASI Naresh prepared the tehrir on the basis of the statement of the factory owner and after making his endorsement on the same handed over to him (witness) who went to the Police Station and got the FIR registered and brought back to the spot the copy of FIR and original tehrir and handed over the same to ASI Naresh.
(50) The witness has deposed that on 24.02.2010 he along with ASI Naresh were on patrolling duty when at about 10 AM them reached at bartan market, Wazirpur Industrial area where a secret informer met them and informed ASI Naresh that a person involved in the dacoity / robbery incident which had taken place at WPIA factory was roaming in the area of computer market. According to the witness, thereafter they went to computer market along with the secret informer and on the back side of computer market one boy was roaming around in the computer market and thereafter on the pointing out of secret informer, he along with ASI Naresh apprehended him and on interrogation his name was disclosed as Jahangir r/o Jahangirpuri. The witness has deposed that on sustained interrogation, the said boy disclosed his involvement in the dacoity incident which had State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 34 of 63 taken place on 22/23.02.2010 after which he was arrested vide memo Ex.PW11/A, his personal search was conducted vide memo Ex.PW11/B and his disclosure statement was also recorded vide memo Ex.PW11/C. The witness has deposed that in his disclosure the accused Jahangir had also stated that he had hidden some of the robbed / stolen articles at his jhuggie at Jahangirpuri. According to the witness, the accused Jahangir took them to his jhuggie situated at CD Block jhuggie cluster Jahangirpuri from where he got recovered a gunny bag which on opening was found to contain six pieces of brass plates. He has deposed that ASI Naresh then put the same bag in a gunny bag and converted the same into a pullanda with the help of a cloth and sealed the same with the seal of NK and seized the same vide memo Ex.PW11/DA.
(51) The witness has deposed that thereafter accused took them to E Block, Jahangirpuri to the jhuggie of his associate Javed and pointed out the same to them. According to the witness, when they went inside the jhuggie, one boy was sitting inside whom he pointed out as Javed who was apprehended and interrogated and he confirmed his name as Javed and also disclosed that he has a shop at Bhalswa Dairy where he had hidden the robbed / stolen articles after which the IO arrested him vide memo Ex.PW11/E, his personal search was also conducted vide memo Ex.PW11/F and his disclosure statement was also recorded vide memo Ex.PW11/G. The witness has deposed that thereafter the accused Javed led State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 35 of 63 them to his shop at Bhalswa Dairy and from the corner of his kabari shop he got recovered seven pieces of brass plates. According to the witness, IO thereafter kept all the brass plates in a katta and converted the same into pullanda and sealed the same with the seal of NK and prepared the pointing out cum seizure memo vide memo Ex.PW11/H. (52) The witness has identified the accused Jahangir and he submits that he does not recollect the face of Javed. Ld. APP for the State with permission of the court put the accused Javed to the witness after which the witness has correctly identified the accused Javed. The witness states that on account of passage of time, he was not in a position to recollect the face of Javed. Witness has admitted that the accused Javed had got recovered a katta from the corner of the shop which on opening found seven pieces of brass plates. The witness has also identified two sample plates on which engraved 15 KVA as recovered from the possession of accused Javed and Jahangir. Witness is unable to tell which of the plates were recovered from Javed and which were recovered from Jahangir. Court has observed that entire case property has been produced in open condition. IO states that he has only taken samples and returned the remaining property to the owner and now this property has been mixed up and it is not possible to inform what property was recovered from whom.
(53) In his cross examination on behalf of the accused persons, the witness is unable to tell the name of the owner of the factory but states that IO had recorded the statement of the owner of the factory in his presence State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 36 of 63 and the owner had disclosed that 9 persons had come to the factory but he did not give the name of the any of the robbers / dacoits nor he expressed his suspicion on anybody. Witness is not aware if the IO had got prepared any sketch of the said persons/ robbers/ dacoits from any of the persons who claimed to be eye witnesses. According to the witness, the IO had shown the photographs of some of the suspects to the owner in the police station. Witness has admitted that the owner was not the eye witness to the incident. He has deposed that IO had shown the photographs both to the owner and to the Chowkidar of the factory. However, the witness is unable to tell the name of the Chowkidar of the factory to whom the photographs were shown. Witness has denied that no photographs were ever shown to either owner or to the Chowkidar as claimed by him and it is for this reason that this fact is not mentioned in his statement U/s 161 Cr. P. C. (54) The witness has further deposed that on 24.02.2010 they had left the Police Station at about 10 AM but he did not make any separate departure entry and has voluntarily added that it was a combine entry by the IO and is unable to give the details of the entry. He also did not make any separate arrival / wapsi entry. Witness has admitted that the computer market normally opened by 99:30 AM and there is lot of crowd of public persons in the area at that time. He is unable to tell the details regarding the clothes which Jahangir was wearing at the time of his apprehension. He has deposed that when Jahangir was identified by the secret informer, he was about 2025 feet away from him. Witness has admitted that Jahangir did not State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 37 of 63 offer any resistance nor he tried to run away nor he was carrying any weapon at that time. According to the witness, at the time when Jahangir was taken to Jahangirpuri, IO had asked some neighbors to join the investigations but they refused. He is unable to tell the names of any of the neighbors who had refused to join the investigations, IO did not gave any notice to them for not joining the proceedings. He is also unable to tell whether the jhuggie from where the Jahangir got recovered the case property was belonging to him or not. Witness has admitted that the seizure memo does not bears the signatures of Jahangir. Witness has deposed that when they went to the jhuggie of Javed, he was alone. Witness has denied that there is no recovery of iron plates from the katta as claimed by him and it is for this reason that he was not even sure with regard to the manner of recovery of the brass plates i.e. whether from the katta or being open. He has denied that no disclosure statement was made either by Jahangir or by Javed as claimed by him or that the disclosure statement was recorded by the IO of his own and he signed the same on the asking of the senior officers to connect the accused with the offence. Witness has denied that both Jahangir and Javed were illegally lifted from their houses and detained in the Police Station and compelled to sign various documents which were converted into various memos later on to connect them with the case. (55) PW12 SI Naresh Kumar has deposed that on 23.02.2010 he was posted at police station Ashok Vihar and on that day he received DD No. 5A, true copy of the same is Ex.PW2/A pursuant to which he along State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 38 of 63 with Ct. Jitender reached at the spot at A122, Wazirpur Industrial area, Ashok Vihar and saw that the articles in the factory were scattered. According to the witness, the complainant / owner of the factory namely Navneet Arora met him there and he inquired from him about the facts and recorded his statement Ex.PW1/A. The witness has deposed that he made his endorsement on his statement of complainant vide Ex.PW12/A and got the FIR registered through Ct. Jitender. According to the witness he thereafter prepared site plan at the instance of Navneet Arora same is Ex.PW12/B the spot was got inspected from the crime team. The witness has deposed that on the very same day, Navneet Arora handed over to him the list of the details of bulgary items, same is Ex.PW1/B. The witness has deposed that on 24.02.2010 he received DD No. 9A from duty officer PS Ashok Vihar, true copy of the same is Ex.PW4/A which was about the arrest of five accused persons and recovery of the articles of the present case. According to him, on receiving this DD he went to Police Station S.P. Badli and made inquiry from HC Begh Raj who had arrested the accused Bimlesh, Babul, Shamkul, Mithun and Mangat Ram. He collected the copy of DD No. 3A dated 24.02.2010 U/s 41.1(D) Cr. P.C. And also made inquiries from his associates constables and recorded the statement of HC Begh Raj and other constables namely Ct. Karan Singh, Ct. Deepti, PSI Sandeep and Ct. Narender and thereafter after collection of the documents about recovery by HC Begh Raj and other documents, he went to Industrial State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 39 of 63 area Wazirpur. The witness further deposed that at the computer market Ct. Jitender met him there and at about 1112 noon one secret informer met him there and he informed him that the person who was involved in the commission of incident on the intervening night of 22/23.02.2010 was roaming in the computer market. According to the witness, on this information he along with secret informer reached in the computer market and secret informer pointed out towards one person who was over powered whose name revealed later on as Jahangir (accused correctly identified by the witness). Witness has deposed that the accused Jahangir was interrogated and he pointed out the place of incident and thereafter accused Jahangir led them to his house at Jahangirpuri and got recovered six brass pieces on which "sterco" was engraved on one side and on other side 15 KVA was engraved on each of the piece, from his jhuggie which was kept in a jute bag and he (witness) took the articles into possession vide memo Ex.PW11/D. According to the witness, thereafter accused Jahangir was arrested vide memo Ex.PW11/A, his personal search was conducted vide memo Ex.PW11/B and his disclosure statement was also recorded vide memo Ex.PW11/C. (56) The witness has deposed that thereafter accused Jahangir led them to the house of accused Javed, a kabari by profession who was apprehended at the instance of Jahangir outside his house. (witness correctly identified accused Javed). According to the witness, Javed was interrogated and thereafter Javed led them to to Bhalswa Dairy where there State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 40 of 63 was a godown of accused Javed and from there Javed took out a jute bag it was opened and it was found to contain seven brass piece in the same bag and converted the same into pullanda and sealed the same with the seal of NK and was taken into possession vide memo Ex.PW11/H. The witness has deposed that thereafter accused Javed was arrested vide memo Ex.PW11/E, his personal search was also conducted vide memo Ex.PW11/F and his disclosure statement was also recorded vide memo Ex.PW11/G. The witness has deposed that the accused Javed got recovered six brass pieces on which "sterco" was engraved on one side on each of the piece and one piece nothing was engraved.
(57) Witness has deposed that on 25.02.2010 accused Bimlesh, Babul, Shamkul, Mithun and Mangat Ram (correctly identified by the witness) were arrested with the permission of the court concerned in the court room and were formally arrested vide memos Ex.PW12/B1 to Ex.PW12/B5 and thereafter all the five accused persons were produced before court concerned from, there they were sent to JC. The witness has deposed that on 27.02.2010 he received DD No. 27A which was reduced into writing on the basis of the information given from Police Station Singhani gate, Ghaziabad, true copy of the same is ExPW12/C and thereafter he went to Police Station Singhani Gate and made the inquiry from Insp. Yogender Malik and he handed over to him one photocopy of recovery memo (taskra / inquiry) of some articles / plates. The witness has deposed State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 41 of 63 that thereafter he requested before the court concerned to issue production warrant of accused Gautam and Vikram which was arrested by Yogender Malik in Police Station Singhani.
(58) The witness has further deposed that on 01.04.2010 accused Vikram (correctly identified by the witness) was produced before the court concerned and after taking the permission from the court, he formally arrested the accused Vikram vide memo Ex.PW12/D. According to the witness, on 03.04.2010 accused Gautam (correctly identified by the witness) was produced before the court concerned and after taking the permission from the court, he formally arrested the accused Gautam vide memo Ex.PW12/E. The witness has deposed that the accused Gautam was produced before the court concerned and he was taken on one day PC remand and he was interrogated and he made his disclosure statement Ex.PW12/E and accused Gautam took them to his house at that time Ct. Mohd. Afzal, Ct. Naveen and complainant Navneet Arora were also joined in the investigations. According to the witness, the accused Gautam got recovered three brass pieces on which "streco" was engraved on one side and one side 15KVA was engraved and Navneet Arora identified the said pieces which were thereafter taken into possession by him (witness) vide seizure memo Ex.PW1/C. (59) The witness has deposed that during investigations accused Vikram, Jahangir and Mangat were tendered for Judicial TIP but they State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 42 of 63 refused to participate in the same vide proceedings Ex.PW12/F1, Ex.PW12/F2 and Ex.PW12/F3. The witness has deposed that when accused Vikram refused to participate in Judicial TIP he was taken on one day PC remand and he led them to CD block jhuggie where he was residing and from there he got recovered two brass pieces and the complainant Navneet Arora was with them and he identified the brass pieces as that which had been robbed/stolen from his factory on the night of 22/23.02.2010 and the said brass pieces were taken into possession vide pointing out cum seizure memo Ex.PW1/D. (60) The witness has further deposed that on 08.03.2010 complainant Navneet Arora, handed over to him some invoices and bills of the articles which were stolen from his factory which are collectively Ex.PW1/F. According to the witness, during investigations the accused Vikram, Gautam and Jahangir pointed out the place of incident vide Ex.PW12/G and Ex.PW12/H. He also collected the photographs which he had done on the day of incident when the spot was got inspected from the crime team and the said photographs are Ex.PW1/E12 to Ex.PW1/E35. The witness has also identified the case property.
(61) In his cross examination by Ld. Defence Counsels, the witness has deposed that he had disclosed that 78 persons had come to the factory. According to him, he did not give the name of the any of the robbers / dacoits nor he expressed his suspicion on anybody. The witness has deposed State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 43 of 63 that he had not got prepared any sketch of the said persons/ robbers /dacoits from any of the persons who claimed to be eye witnesses. According to the witness, he had not shown the photographs of some of the suspects to any of the eye witness to the incident. The witness has further deposed that on 24.02.2010 them had left the Police Station at about 7:30 AM and he made by departure vide DD No. 9A. Witness has admitted that the computer market normally opened by 99:30 AM and there was lot of crowd of public persons in the area at that time. He is unable to tell the details regarding the clothes which Jahangir was wearing at the time of his apprehension. According to the witness, when Jahangir was identified by the secret informer, he was about 1015 feet away from him. Witness has admitted that Jahangir did not offer any resistance nor he tried to run away nor he was carrying any weapon at that time. According to the witness, at the time when Jahangir was taken to Jahangirpuri, he had asked some neighbors to join the investigations but they refused. He is unable to tell the names of any of the neighbors who had refused to join the investigations, he did not gave any notice to them for not joining the proceedings. The witness has deposed that the jhuggie from where the Jahangir got recovered the case property was belonging to him and when they went to the house of Jahangir, his jhuggie was open and no body was present there. Witness has admitted that he did not know Jahangir or Javed prior to their apprehension. (62) The witness has deposed that when they went to the jhuggie of Javed, he was alone and he (witness) had not asked the neighbors to join the State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 44 of 63 investigations at Bhalswa Dairy and has voluntarily added that the place is a kachi colony and very few peoples were residing there at that time. Witness does not recollect the exact time when them left the police station on 04.04.2010 and at what time them reached the spot. He deposed that the house was built up to two storeys and has voluntarily added that the same is rented house. Witness has admitted that there were many other tenants in the premises. According to him, he had asked those persons including neighbors to join the proceedings but they refused however he is unable to tell the names of the persons who had refused to join the proceedings. The witness has deposed that nobody from the family of accused Gautam was present at the spot and when they went to the spot, the room of Gautam was open. The witness has deposed that the accused Gautam got recovered the plates from the corner his room on the first floor. According to the witness, he did not take any photographs regarding the proceedings of the spot. Witness has denied that all documentation regarding preparation of pointing out cum seizure memo was done while sitting in Police Station. The witness has deposed that the complainant Navneet Arora had met them in the A Block, Wazirpur Industrial area in his private car. The witness has deposed that he had not informed the complainant on 04.04.2010. Witness has denied that accused Gautam has been falsely implicated in connivance with Navneet Arora or that nothing has recovered from the house of accused Gautam. According to the witness, he had mentioned about the shape of the plates in the seizure memo, however, when confronted with Ex.PW1/C where State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 45 of 63 regarding the shape is not mentioned. The witness has deposed that he never seen these type of plates being sold in the market. Witness has deposed that he is aware that Navneet Arora is in to manufacturing or trading of these plates. Witness has denied that no disclosure statement was made either by Jahangir or by Javed as claimed by him or that the disclosure statement was recorded by him of his own to connect the accused with the offence. Witness has further denied that both Jahangir and Javed were illegally lifted from their houses and detained in the Police Station and compelled to sign various documents which were converted into various memos later on to connect them with the case. The witness has deposed that he did not join any neighbors in the investigations when Vikram was taken to his jhuggie which jhuggie was open and there was nobody in his house at that time. Witness has admitted that the plates were lying open in the jhuggie and has voluntarily added that it was in the one corner. He further admits that the case property / plates were visible inside the jhuggie and has voluntarily added that in case if there is light, they were visible. The witness has deposed that he did not put any distinct identification mark on the plates recovered from the jhuggie of Vikram. Witness has admitted that if the plates recovered from the various accused are mixed with other plates manufactured and available in the factory of the complainant, it would be difficult to identify any one of them individually. Witness has denied that these plates have been planted upon the accused persons only to work out the case. Witness has further denied that no recovery was effected State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 46 of 63 from the jhuggie of Vikram as claimed by him or that no disclosure statement was made by accused Vikram or by any of the accused. Witness has further denied that he recorded the disclosure statements of his own after compelling the accused to sign various blank documents which he converted into different memos later. He has also denied that the witnesses Hari Ram Yadav and Ashok Kumar have been planted in the case on the directions of the senior officers or that Hari Ram Yadav and Ashok Kumar have been deliberately withheld from the court, since he knew that they were planted witnesses and would have exposed the lies of the investigating agency in falsely implicating the accused in the case. According to him, he did not Hari Ram Yadav to Tihar Jail for TIP and has voluntarily added that only Ashok Kumar for taken for judicial TIP but it could not conducted as the accused has refused. Witness has denied that all the accused had been shown to Ashok Kumar in the police station itself and therefore they had refused to participate int he TIP. Witness has denied that the accused has been paraded before the media and their photographs taken after which they had refused to participate in the TIP. Witness has denied that he is deposing falsely in the manner of arrest and recovery.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
(63) After completing the prosecution evidence, statements of accused persons were recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material were put to them which they have denied.
State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 47 of 63 (64) According to the accused Gautam @ Munna he is innocent and has been falsely implicated in this case after being lifted from Shastri Park and he has nothing to do with the alleged incident and the alleged recovery has been planted upon him by the police to falsely implicate him.
According to the accused Mangat Ram, Javed, Mohd. Babul and Bimlesh, they are innocent and have been falsely implicated in this case after being lifted from their houses and they have nothing to do with the alleged incident. In so far as the accused Vikram, Mithun, Jahangir and Shamkul are concerned, they have stated that they are innocent and have been falsely implicated.
FINDINGS:
(65) I have heard the arguments advanced before me by the Ld. Addl.
PP for the State and the Ld. Defence Counsels and also considered the testimonies of various witnesses examined by the prosecution and the memorandum of arguments filed by the parties. My findings are as under:
Accused Not Named in the FIR:
(66) It is an admitted fact that none of the accused / assailants were previously known to the complainant / eye witnesses. The time of the alleged incident is 3:30 PM and the FIR was registered at 5:45 AM and none of the accused / assailants have been named in the FIR.
State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 48 of 63 Ocular Evidence:
(67) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspect connected with the offence, there is no reason to reject their testimonies. (68) The case of the prosecution is that at the time of the incident the security guard of the factory was sitting at the entrance when initially 5 - 6 persons entered the premises and lifted a large amount of copper, brass, GM mettle and other articles at the point of knife. Immediately information was given to the owner Navneet Arora and the police was also called and FIR was registered. On the same day evening i.e. 23.2.2010 at around 9 AM a tempo bearing No. No. DL1LE1350 duly loaded with the copper, brass and metal, was stopped and checked and the persons sitting in the said tempo namely Shamkul, Mangat, Mithun, Bimlesh and Babul could not account the possession of those articles and the said articles were seized under Section 41.1 Cr.PC and it was disclosed by the accused that the said articles / property was looted by them from a factor at WPIA on which the Investigating Officer of this case was informed and the complainant identified these articles as the same which were stolen from his factory. State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 49 of 63 (69) The entire case of the prosecution is based upon the sole testimony of the alleged eye witness Manoj Kumar who has been examined as PW3 whose testimony incidentally does not find corroboration from any other source.
(70) Since the prosecution is placing its heavy reliance on the testimony of Manoj Kumar (PW3) hence it is necessary for this Court to first determine whether what he has deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 50 of 63 and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.:
Krishnan Vs. State reported in AIR 2003 SC 2978).
(71) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to withstand the test of crossexamination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful cross examiner and at times under the stress of crossexamination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965).
(72) Now coming to the testimony of Manoj Kumar (PW3), who was posted as the Security Guard in the factory and was on duty at the time of the incident. The relevant portion of which is reproduced as under:
State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 51 of 63 "On 22/23022010 I was working as Guard in transformer making factory at A122, Wazirpur Industrial Area. On the night of 22/23022010 I and Hare Ram were on duty between 8 PM to 8 AM at the main gate. We were sitting inside the gate after locking the gate. At about 11 PM, Ashok Kumar Upadhyaya, who was working as labourer in the factory, was also sitting with us. While we were sitting together, at about 11:30 PM three boys jumped inside from the gate with knives in their hands and took us in a room on the first floor of the factory. Three more boys had also jumped inside the factory from the gate. We were asked not to raise noise and were threatened that we would be killed if we raise the noise. One of the boys kept guard on us with knife. At about 3 AM, that boy left us and we heard the noise of a moving tempo. Thereafter, we saw that glasses of the factory were broken and the goods were lying scattered. The locks of the door were also lying open. Ashok Kumar informed the factory owner telephonically. The factory owner Navneet came in the factory after some time.
At this stage, the accused points out towards accused Jahangir, Samkul and Mangat Ram, now present in the court and states that these three boys took them on the first floor and is unable to identify the other boys.
At this stage, Ld. Sub. APP wants to crossexamine the witness on the point of identity of three accused namely Vikram, Bimlesh and Mohd. Abdul. Heard and allowed.
XXXXXX by Sh. Ajit Kumar State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 52 of 63 Srivastava, Sub. PP for State.
At this stage, accused Vikram present in the court today is shown to the witness but the witness shows his inability to identify him as one of the persons who jumped later on the date of incident.
At this stage, accused Bimlesh present in the court today is shown to the witness but the witness shows his inability to identify him as one of the persons who jumped later on the date of incident.
At this stage, accused Mohd. Babul present in the court today is shown to the witness put the witness shows his inability to identify him as one of the persons who jumped later on the date of incident.
On specifically asking from the witness, witness states that he could not identify the abovesaid three accused as they jumped inside later on and at that time he was under
threat as the accused persons had already shown him the knife, prior to the said three accused jumped inside......"
(73) Manoj Kumar has been exhaustively crossexamined on behalf the accused. It is writ large from his examinationinchief that he has only identified three accused namely Jahangir, Shamkul and Mangat Ram but has not identified any other accused despite the fact that other accused were also put to him specifically but he has expressed his inability to identify them. It is borne out from the examination of witness Manoj Kumar that he was State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 53 of 63 sitting at the gate along with one Hare Ram and his duty was from 8 PM to 8 AM and at about 11 PM, the labour Ashok Kumar Upadhyaya also joined them when the incident took place at about 11:30 PM. It is the case of the prosecution that the boys who came inside the factory premises, had left in tempo after loading the goods of the factory in the same. Despite the presence of Hare Ram and Ashok Kumar at the spot, they have not been examined in the court as witnesses by the prosecution and hence the testimony of Manoj Kumar does not find corroboration from any other source.
(74) Coming now to the aspect of the credibility of this witness Manoj Kumar particularly on the aspect of the identity of the accused, at the very outset, I may observe that in so far as the accused namely Jahangir, Mangat Ram and Vikram are concerned, they had refused to participate in the Judicial TIP and for the first time have been identified by witness Manoj Kumar in the court.
(75) Secondly, I may observe that this witness Manoj Kumar is a Security Guard who had been taken from Security Agency but there is no document placed on record to that effect particularly to establish that he was on duty on the date of incident. No witnesses from the Security Agency has been cited or examined in the court nor any document regarding the employment of Manoj Kumar at the spot of incident and his presence at the relevant time including duty chart / roaster has been State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 54 of 63 placed on record. So much so, the Investigating Officer has even failed to bring on record the name of the Security Agency through which Manoj Kumar was employed, his attendance register for the day and other details. (76) Thirdly, it is also evident that the another Guard of the factory namely Hare Ram was also allegedly on duty at the time of incident along with one Ashok Kumar. Both of them are material eye witnesses and could have corroborated and confirmed the testimony of Manoj Kumar but they both have not been produced in the court and have been withheld from the court for which an adverse inference is being taken against the prosecution for the same.
(77) Fourthly, coming next to the aspect of identification of the accused by the witness Manoj Kumar (PW3), it is writ large that the identification of Jahangir, Mangat Ram and Samkul in the court for the first time is in most casual manner. On the one hand he has stated that these boys took him on the first floor of the factory and justifies how he could identify them whereas simultaneously he has not identified the other accused stating that he is unable to do so since at that time he was under
threat and was not able to focus on any of other accused. In the same breath this witness has also stated that one of the boys who had come inside the factory and was duly armed with a knife had kept a guard on them then how is it possible at the same time that they were taken on first floor. (78) Lastly, assuming what Manoj Kumar (witness) states is correct and one duly armed person kept a watch on him. How then it is possible State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 55 of 63 that one armed person was able to hold on the three security guards single handedly. As per the testimonies of Manoj Kumar three persons i.e. Manoj Kumar himself, Hare Ram and Ashok Kumar Upadhyaya were present on the gate of the factory while only one person / assailant was keeping a guard upon them. The evidence confirms that Ashok Kumar was having a mobile phone and it was he who had informed the owner about the incident. It is rather strange that two persons who were guarding the factory along with a third man a factory worker, could not overpower one boy who was guarding them nor they informed the owner about what was happening for good three hours nor they sought help from any other source despite opportunity (Ashok Kumar having mobile phone).
(79) In this background, the uncorroborated testimony of Manoj Kumar (PW3) on the aspect of identity of accused Jahangir, Shamkul and Mangat Ram, is required to be read with caution and there being no other independent evidence to establish and confirm that these three accused had actually participated in the incident of dacoity, and hence for charges under Section 395/458/34 Indian Penal Code, benefit of doubt is being given to the accused Jahangir, Shamkul and Mangat Ram.
(80) In so far as the other accused namely Mithun, Bimlesh, Javed, Gautam, Vikram and Mohd. Babul are concerned, they have not been identified by the sole eye witness Manoj Kumar (PW3) nor there is any direct evidence against them to connect them with the incident of dacoity State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 56 of 63 and hence I hold that prosecution has not been able to prove and substantiate the charges under Section 395/458/34 Indian Penal Code against the accused Virkam, Bimlesh and Mohd. Babul and charge under Section 397 Indian Penal Code against the accused Jahangir, Mangat Ram and Vikram, and hence benefit of doubt is being given to the accused Virkam, Bimlesh, Mohd. Babul Jahangir and Mangat Ram for the same.
Possession of the Stolen / Looted Property:
(81) It is the case of the prosecution that in so far as the accused Shamkul, Mangat, Bimlesh, Mithun and Babul are concerned, they were apprehended along with the tempo bearing No. DL11 E1350 while they were in possession of large pieces of copper, gun metal, bear copper, laminated copper, copper casting, aluminum casting etc., which were looted on 23.2.2010 at around 3:00 AM from the factory of complainant and were unable to explain the possession of the same.
(82) In so far as the theft / robbery of the aforesaid articles is concerned, the complainant Navneet Arora (PW1) has proved his complaint and also proved that the approximate value of the looted articles was around 6 lacs. He has further proved having joined the investigations and has identified the accused Gautam and Vikram from whose jhuggi the copper and brass plates were recovered. He has proved that he had joined the investigations on 4.4.2010 when the accused Gautam got recovered three pieces of copper and brass from his jhuggi, which he identified as the one State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 57 of 63 which were stolen from his factory on 23.2.2010. Further, he has also proved that on 13.4.2010 he again joined the investigations and proved that in his presence Vikram got recovered two pieces of brass from his jhuggi.
He has also identified the case property in the court and i.e. one T Plate of gun metal and copper U and one bracket of gun metal Ex.P1 (collectively), two copper U Plates which are Ex.P2 (collectively), three copper 'U' having mark of "Sterco" (i.e. brand name of complainant), the sample articles which includes (i) Enamel copper wire of black colour and yellow colour,
(ii) copper foil one piece, (iii) gun metal one piece, (iv) brass arm of different size (two pieces), (v) copper U (two pieces) of different pieces, (vi) copper wire (cotton coated) one piece, (vii) copper sibble two pieces, (viii) copper strips (one piece), which are Ex.P3 collectively. The aforesaid case property was also released to the complainant on Supardari photographs of which are placed on record and he has identified the same. (83) The apprehension and arrest of the accused Shamkul, Mangat, Bimlesh, Mithun and Babul has been duly proved by SI Sandeep (PW5) who has in his testimony corroborated the version given by HC Begraj and Ct. Narender. SI Sandeep during his testimony in the court has only identified the accused Mohd. Babul, Mangat Ram, Mithun, Bimlesh and Shamkul and not her the other whereas HC Begraj and Ct. Narender have identified the accused Mithun as the person who was driving the tempo and the accused Shamkul, Mangat, Bimlesh and Mohd. Babul as the persons sitting in the tempo along with the stolen property pursuant to which the said property State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 58 of 63 was seized as the accused were not in a position to count for and explain the possession of the same.
(84) The entire property which had been recovered from the possession of these accused have been duly identified by the complainant before the Ld. MM and thereafter before this court by way of photographs. I may observe that the details of the case property had been given to the police by the complainant at the first instance and the copper U bears the mark of the complainant i.e. Sterco' and hence the identity of the same as such stands established.
(85) In so far as the accused Gautam, Jahangir and Javed are concerned, Ct. Mohd. Afzal Khan (PW9) and Ct. Naveen (PW10) have proved the apprehension of Gautam and recovery of three pieces of brass from his possession which finds independent corroboration from the testimony of the complainant Navneet Arora. Further, Ct. Jitender (PW11) has proved the apprehension and arrest of accused Jahangir who also got recovered 6 pieces of brass pieces from his jhuggi which have been identified by the complainant and later led the arrest of accused Javed who is a kabari by profession and from whose possession 7 brass pieces were recovered which were also identified by the complainant Navneet Arora (PW1) as the stolen property.
(86) Further, when the entire incriminating material was put to the accused persons, particularly as regards to the stolen property, they have simply denied the same and have stated that the said articles have been State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 59 of 63 planted upon upon them. Only the accused Mangat Ram has led defence evidence that he has been falsely implicated while the other accused have refused to lead any evidence in their defence.
(87) In view of the above, I hold that all the accused namely Jahangir, Mithun, Samkul, Mangat Ram, Bimlesh, Javed, Gautam Manna, Vikram and Mohd. Babul, are liable for the offence under Section 411 Indian Penal Code (not under Section 412 IPC).
FINAL CONCLUSION (88) In the case of Sharad Birdhichand SardavsState of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 60 of 63 leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(89) Applying the above principles of law to the facts of present case, it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the Investigating Officer. The identity of the accused persons Jahangir, Mithun, Samkul, Mangat Ram, Bimlesh, Javed, Gautam, Vikram and Mohd. Babul, as the assailants who had committed the robbery in the factory of the complainant in the intervening night of 22/23.2.2010, has not been established and proved beyond reasonable doubt. In so far as the accused Jahangir, Mangat Ram and Vikram are concerned, they had refused to participate in the Judicial TIP and for the first time have been identified by witness Manoj Kumar in the court in most casual manner and that too without any independent corroboration. Further, in so far as the other accused namely Mithun, Bimlesh, Javed, Gautam, Vikram and Mohd. Babul are concerned, they have not been identified by the sole eye witness Manoj Kumar (PW3) nor there is any direct evidence against them to connect them with the incident of dacoity.
(90) However, in so far as the aspect of recovery of stolen articles from the possession of the accused persons is concerned, the accused Shamkul, Mangat, Bimlesh, Mithun and Babul, were apprehended along State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 61 of 63 with the tempo bearing No. DL11 E1350 while they were in possession of large pieces of copper, gun metal, bear copper, laminated copper, copper casting, aluminum casting etc., which were looted on 23.2.2010 at around 3:00 AM from the factory of complainant, which stands proved and established. In so far as the accused Gautam, Jahangir and Javed are concerned, the prosecution has also been able to prove and establish their apprehension and also the recovery of brass pieces from their possession. (91) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
(92) In so far as the aspect of recovery of stolen articles from the possession of the accused persons is concerned, the prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 62 of 63 corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witness of the prosecution have been able to built up a continuous link. (93) In view of the above discussions, the accused Jahangir, Mangat Ram, Virkam, Samkul, Bimlesh and Mohd. Babul are hereby acquitted of the charges under Section 395/458/34 Indian Penal Code. Further, the accused Jahangir, Mangat Ram and Vikram are also acquitted of the charge under Section 397 Indian Penal Code.
(94) However, all the accused namely Jahangir, Mithun, Samkul, Mangat Ram, Bimlesh, Javed, Gautam Manna, Vikram and Mohd. Babul, have been held guilty for the offence under Section 411 Indian Penal Code (not under Section 412 IPC) and accordingly convicted.
(95) Be listed for arguments on sentence at 2:00 PM. Announced in the open Court (Dr. KAMINI LAU) Dated: 13.05.2014 ASJ (NW)II: ROHINI State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 63 of 63
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 111/2013 Unique Case ID: 02404R0121862010 State Vs. (1) Jahangir S/o Sheikh Aalam R/o Jhuggi No. 220/N38, CD Park, Jahangirpuri, Delhi.
(Convicted) (2) Mithun S/o Pratap Singh R/o Village Rutha, PS : Jahangira Bad, Distt.: Bulandsehar, U.P. (Convicted) (3) Samkul S/o Islam Babu R/o Jhuggi No. C118, Jahangirpuri, Delhi.
(Convicted)
(4) Mangat Ram
S/o Lala Hans Raj
R/o Jhuggi No. G901
Jahangirpuri, Delhi.
(Convicted)
(5) Bimlesh
S/o Mulak Raj
R/o Village Jammaluddinpur
State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 64 of 63
PS : Safepur, Distt.: Unna, U.P.
(Convicted)
(6) Javed
S/o Babu Khan
R/o E631, Jahangirpuri, Delhi.
(Convicted)
(7) Gautam Manna
S/o Sindhu Yadav
R/o Jhuggi No. 488, G Block,
Jahangirpuri, Delhi.
(Convicted)
(8) Vikram
S/o Birju Thakur
R/o Jhuggi No. G933,
Jahangirpuri, Delhi.
(Convicted)
(9) Mohd. Babul
S/o Abdul Kalam
R/o H. No. 344, Tejpal Ka Makan
Gali No. 3, Wazirabad, Delhi.
(Convicted)
FIR No. : 45/2010
Police Station : Ashok Vihar
Under Section : 392/395/397/458/412 Indian Penal Code.
Date of conviction: 13.05.2014
Arguments concluded on: 13.05.2014
Date of Sentence: 13.05.2014
State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 65 of 63
APPEARANCE:
Present: Sh. Tofeeq Ahmed, Ld. Addl. PP for the State.
Convicts Jahangir, Samkul, Mangat Ram, Bimlesh and Vikram in Judicial Custody and the accused Mithun, Javed, Gautam Manna and Mohd. Babul on bail with Sh. Sachin Sharma, Sh. Mohd. Shakeel Ahmed, Sh. Abhishek Kaushik, Sh. Deepak Sharma, Sh. Vishnu Kumar, Sh. Rehmat Siaaiqui and Sh.
Rajneesh Antil, Ms. Sadhna Bhatia, Advocates / Amicus Curiae.
ORDER ON SENTENCE:
As per the allegations, on 23.02.2010 at about 03:30 AM at A122, Wazirpur Industrial Area, Ashok Vihar, Delhi, the accused Jahangir, Mangat Ram, Vikram, Samkul, Bimlesh and Mohd. Babul along with co accused Dilawar (since nor arrested), in furtherance of their common intention, committed dacoity of copper transformer, computer, TV and other articles of copper from Tejender Electrical Works situated at the aforesaid place, by overpowering the guards namely Hari Ram and Manoj and helper Ashok Kumar, after house trespass in the aforesaid factory belonging to the complainant Navneet Singh Arora. It is further alleged that while committing the aforesaid dacoity, the accused Jahangir, Mangat Ram and Vikram also used deadly weapon i.e. knives.
Further, it has been alleged that on 24.02.2010 at about 9:00 PM at Siraspur Picket, within the jurisdiction of Police Station Samaipur Badli, the accused Mithun, Samkul, Bimlesh, Mangat Ram and Mohd. State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 66 of 63 Babul, were found in possession of stolen property i.e. one inch wide copper patti in the shape of bundle (20 pieces), copper wire black colour (one bundle, weighing about 40 kg.), think copper wire bundle weighing about 20 kg, copper patti (round shape 7 bundles), two copper dimmer; 12 pieces of brass in a plastic bag, 55 pieces rod of copper and brass with two copper patti; 215 pieces of symbol, copper wire (two bundles); copper wire gitti (small and large) 9 in number; thick copper wire gitti 4 in number (small and large' and 4 copper patti rolls belonging to the complainant Navneet Singh Arora, which they dishonestly retained knowing or having reason to believe that the possession of the same had been transferred by the commission of dacoity.
It has also been alleged that on 04.04.2010 at G488, G Block Jhuggi, Jahangirpuri, Delhi, the accused Gautam @ Manna was found in possession of stolen property i.e. "one brass piece 'Sterco' 15 KVA and two other pieces of brass (without make)" belonging to the complainant Navneet Singh Arora, which he dishonestly retained knowing or having reason to believe that the possession of the same had been transferred by the commission of dacoity. Further, on 13.04.2010 at G933, Jhuggi, Jahangirpuri, Delhi, the accused Vikram was found in possession of stolen property i.e. "two pieces of 'Sterco' 15 KVA" belonging to the complainant Navneet Singh Arora, which he dishonestly retained knowing or having reason to believe that the possession of the same had been transferred by the State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 67 of 63 commission of dacoity.
It is also alleged that on 24.02.2010 at Godown situated at Swaroop Nagar Extension, behind Bhalaswa Dairy, the accused Javed was found in possession of stolen property i.e. "two pieces 'Sterco' 35 KVA, four pieces of Sterco 15 KVA and one similar type of piece" belonging to the complainant Navneet Singh Arora, which he dishonestly retained knowing or having reason to believe that the possession of the same had been transferred by the commission of dacoity.
It is further alleged that on 24.02.2010 at Jhuggi No. 220/N28, CD Park, Jahangirpuri, Delhi, the accused Jahangir was found in possession of stolen property i.e. "six pieces of 'Sterco' 15 KVA"
belonging to the complainant Navneet Singh Arora, which he dishonestly retained knowing or having reason to believe that the possession of the same had been transferred by the commission of dacoity.
However, on the basis of the testimonies of the various prosecution witnesses particularly the victim complainant Navneet Singh Arora and on the basis of the testimonies of other witnesses and other circumstantial evidence on record this Court vide a detail judgment has acquitted the accused namely Jahangir, Mangat Ram, Virkam, Samkul, Bimlesh and Mohd. Babul of the charges under Section 395/458/34 Indian Penal Code. Further, the accused Jahangir, Mangat Ram and Vikram are also acquitted of the charge under Section 397 Indian Penal State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 68 of 63 Code. However, all the accused namely Jahangir, Mithun, Samkul, Mangat Ram, Bimlesh, Javed, Gautam Manna, Vikram and Mohd. Babul, have been held guilty for the offence under Section 411 Indian Penal Code (not under Section 412 IPC) and accordingly convicted.
Heard arguments on the point of sentence. The convict Jahangir is stated to be a young boy of 25 years of age having a family comprising of aged parents, three brothers (all unmarred), one sister (married), wife and one daughter aged 5 years. He is 7th class pass and a Kabadi by profession. He has remained in JC in the present case for a period of 04 years, 02 months 19 days. He is stated to be not involved in any other case.
The convict Mithun is stated to be a young boy of 25 years of age having a family comprising of aged father, wife, one son aged 5 years and one daughter aged five months. He is totally illiterate. He has remained in JC in the present case for a period of 03 years. He is stated to be not involved in any other case.
The convict Samkul is stated to be a young boy of 32 years of age having a family comprising of aged mother, wife, three daughters and one son. He is totally illiterate and is doing private job. He has remained in JC in the present case for a period of 04 years, 02 months 18 days. He was previously involved in one other case wherein he has already been acquitted on 29.4.2014.
State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 69 of 63 The convict Bimlesh is stated to be a young boy of 34 years of age having a family comprising of aged mother, three sisters (all marred), two brothers (both unmarried) and wife. He is totally illiterate and a Kabadi by profession. He has remained in JC in the present case for a period of 04 years, 02 months 18 days. He is also involved in one other case where he is on bail.
The convict Javed is stated to be a young boy of 35 years of age having a family comprising of aged parents, five sisters (two married, three unmarried), one brother (unmarried), wife and two minor daughters. He is 5th class pass and a cooler mechanic profession. He has remained in JC in the present case for a period of 01 month 27 days. He is stated to be not involved in any other case.
The convict Vikram is stated to be a young boy of 25 years of age having a family comprising of aged parents, three sisters (all unmarred). He is unmarried, totally illiterate and is a Kabadi by profession. He has remained in JC in the present case for a period of 04 years, 01 month 12 days. Apart from this case, he was involved in four other cases out of which in two cases he has been acquitted and two cases are still pending.
The convict Gautam @ Manna is stated to be a young boy of 44 years of age having a family comprising of aged mother, wife, two daughters (both married), one son (unmarried). He is 5th class pass and a Kabadi by profession. He has remained in JC in the present case for a period of 02 years 28 days. Apart from this case, he is also involved in one State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 70 of 63 another case bearing FIR No. 51/10 PS Alipur which still pending trial.
The convict Mangat Ram is stated to be a young boy of 26 years of age having a family comprising of aged parents, three brothers (all unmarred). He is unmarried, totally illiterate and bike mechanic by profession. He has remained in JC in the present case for a period of 04 years, 02 months 18 days. Apart from this case, he was involved in two other cases and has been acquitted.
The convict Mohd. Babul is stated to be a young boy of 39 years of age having a family comprising three sisters, one brother, wife and one daughter aged 5 years. He is totally illiterate and a Kabadi by profession. He has remained in JC in the present case for a period of 02 years, 03 months 14 days. Apart from this case, he was involved in two other cases and has been acquitted.
The Ld. Counsels for the convicts have vehemently argued that all the convicts are young boys and belong to poor families. It is further argued that though the convicts Gautam, Samkul, Mangat Ram, Bimlesh and Vikram are having previous involvements yet they have not been convicted in any other case so far. It is prayed that a lenient view taken against the convicts. On the other hand the Ld. Addl. PP for the State has prayed for a stern view keeping in view the allegations involved particularly as against the convict Raj Kumar.
I have considered the rival contentions. The convicts are young boys belonging to extremely poor families. They are all scrap dealers/ local State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 71 of 63 Kabari's by profession and any harsh view at this stage would ruin their entire future. The convicts Jahangir, Mithun, Javed and Mohd. Babul are not involved in any other case whereas the convict Samkul who was involved in another case has already been acquitted in the same. The convict Jahangir has already remained in Judicial Custody for a period of 04 years, 02 months & 19 days; convict Samkul has already remained in JC for a period of 04 years, 02 months & 18 days; the convict Mangat Ram has already remained in JC for a period of 04 years, 02 months & 18 days; the convict Bimlesh has already remained in JC for a period of 04 years, 02 months & 18 days and the convict Vikram has already remained in JC for a period of 04 years, 01 month & 12 days. Therefore, the convicts Jahangir, Samkul, Mangat Ram, Bimlesh and Vikram have already undergone incarceration more than the maximum punishment so provided for the offence under Section 411 IPC i.e. three years. Under these circumstances, the convicts Jahangir, Samkul, Mangat Ram, Bimlesh and Vikram are sentenced to Rigorous Imprisonment for a period of Three years (already undergone) for the offence under Section 411 IPC.
Further, the convict Gautam Manna is sentenced to Rigorous Imprisonment for a period of 02 years & 28 days (i.e. the period already undergone by him) for the offence under Section 411 Indian Penal Code.
The convict Mohd. Babul is sentenced to Rigorous Imprisonment for a period of 02 years, 03 months & 14 days (i.e. the State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 72 of 63 period already undergone by him), for the offence under Section 411 Indian Penal Code.
In so far as the convict Mithun is concerned, he is sentenced to Rigorous Imprisonment for a period of One year, One Month and six days (i.e. the period already undergone by him) and fine to the tune of Rs. 5,000/ for the offence under Section 411 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for the period of Fifteen days.
In so far as the convict Javed is concerned he has undergone least period of incarceration and hence he is sentenced to Rigorous Imprisonment for a period of 01 month & 28 days (i.e. the period already undergone by him) and fine to the tune of Rs.10,000/ for the offence under Section 411 Indian Penal Code. In default of payment of fine he shall undergo Simple Imprisonment for the period of One month.
Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period already undergone by them, as per rules.
The convicts have been informed that they have a right to prefer an appeal against the judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 73 of 63 One copy of the judgment and order on sentence be given to the convicts free of costs and one copy of order on sentence be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU) Dated: 13.05.2014 ASJ (NW)II: ROHINI State Vs. Jahangir & Others, FIR No. 45/10, PS: Ashok Vihar Page No. 74 of 63