Delhi District Court
The State vs 1. Ajay Kumar on 4 September, 2014
FIR no. 47/10
D.O.D 04.09.2014 P.S Bawana
u/s 395/396/ 34 and 412/414 IPC
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSIONS CASE NO. : 137/2014
UID NO . : 02404R0229062010
FIR No : 47/10
P. S : Bawana
u/s : 395/396/412/414/34/IPC
The State versus 1. Ajay Kumar
S/O Lala Ram
R/O F-2/62, Shahbad Dairy C
Block Delhi.
2.Santosh
S/O Raj Kumar
R/O Jhuggi F Block Shahbad Dairy,
Delhi .
3. Dinesh @ Kudya
S/O Ghanshyam
R/O 13/4 Shahbad Dairy, C Block
Delhi.
4.Vijay Kumar
S/O Uma Shankar
R/O B-9/43, Shahbad Dairy, Delhi .
5. Anad@ Nanda
S/O Harish Chand
R/O Vill Muiya Mugdampur,
P.S Nizamabad, Distt Azamgarh(UP)
SC No. 137/14 State vs Ajay Kumar etc (Page 1 of 34 )
FIR no. 47/10
D.O.D 04.09.2014 P.S Bawana
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6. Vinod Kumar s/o Ghanshyam
R/O 13/4 Shahbad Dairy, C
Block,Delhi.
7. Dilshad
S/O Nashira
R/O Village Jauli Kheri P.S Jansath
Distt, Muzaffar Nagar , UP
Date of committal to session court : 04.10.2010
Date of argument : 04.09.2014
Date of order : 04.09.2014
JUDGMENT
1 The case of the prosecution as born out from the chargesheet is that on 27.2.2010, a PCR Call regarding theft and murder was received from police control Room which was recorded vide DD no. 11 A at PS Bawana. Said DD was marked to S.I Mahender Pratap(PW23) for enquiry and necessary action. S.I Mahender Pratap along with other police staff reached at the spot i.e Factory no. H-1, Sector 1, DSIDC, Bawana, Delhi and found owner of the factory, Narender Kumar present over there. The dead body of chowkidar namely Jagdish was found lying on the floor and in a pool of blood. Hands SC No. 137/14 State vs Ajay Kumar etc (Page 2 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC and legs of body were found tied with electricity wire and face of dead body was crushed.
2 Blood stained printing press pipe was found lying on the left side of dead body and one right leg shoe was found near pipe . Crime team was called at the spot. Photographer took the photographs of scene of crime and finger print expert lifted the chance print. S.I Mahender Pratap recorded the statement of Narender Kumar, owner of factory and on the basis of same rukka was prepared and FIR was got registered through HC Surender.
3 It is further case of the prosecution that in the meanwhile Inspector H. S Meena(PW4) , the then SHO P.S Bawana was informed , who reached at the aforesaid factory alongwith other staff and took over the investigation from S.I Mahender Pratap Singh. He prepared site plan and lifted one printing press pipe stained with blood, blood from the spot on the gauze piece , blood stained floor piece , Earth control , Five pieces of cardboard smeared with blood and SC No. 137/14 State vs Ajay Kumar etc (Page 3 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC prepared separate pullandas and sealed with the seal of HSM and seized the same vide various memos.
4 Dead body of the deceased Jagdish was removed to the hospital where postmortem is shown to have been conducted by Dr. V.K Jha . After postmortem dead body of the deceased was handed over to his relatives. During the investigation, it was revealed that in the intervening night of 26/27-2-2010, dacoity was committed in said factory and around 100 printing press pipes were looted and while committing Dacoity , murder of Watchman namely Jagdish was committed.
5 It is also the case of the prosecution that accused Ajay, who was the Ex Driver of the complainant Narender Kumar , had stolen car of the complainant , that's why he was removed from the service. It is alleged that in the month of June 2010, accused Ajay along with his other co- accused persons had committed the robbery in the office of the complainant for which another FIR No. 140/10 at SC No. 137/14 State vs Ajay Kumar etc (Page 4 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC PS North Rohini u/s 392/397/341/34 IPC and 25/54/59 Arms Act was registered.
6 According to the prosecution , initially accused Ajay and Santosh were arrested in case FIR no.140/10 P.S North Rohini u/s 392/397/341/34 IPC and 25/54/59 Arms Act. In that case both the accused persons made disclosure statements admitting their involvement in the present case along with other accused persons. Inspector Arun Kumar(PW22), IO of case FIR no. 140/10 P.S North Rohini , who had arrested accused Ajay and Santosh in that case, informed the matter to the IO of the present case. Accused Ajay and Santosh were formally arrested in the present case also and on the basis of their disclosure statements, accused Vinod was arrested . Accused Vinod made disclosure statement and at the instance of the accused Vinod, accused Vijay and Dinesh were arrested and subsequently accused Dilshad and Anad@ Nanda were also arrested.
7 As per the case of the prosecution, accused
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Santosh, Dinesh, Vijay , Anad@ Nanda and Dilshad got recovered four printing pipes each and accused Ajay got recovered five printing pipes , which were looted by them from said factory of Narender Kumar. Above mentioned case property is shown to have been sealed with the seal of RS and then seized vide various seizure memos.
8 On completion of investigation,
chargesheet for offences u/s
460/396/201/412/414/34 IPC, came to be filed
against all the seven accused persons. After taking the cognizance of the offences, since the offence u/s 460/396 IPC were exclusively triable by the court of sessions, therefore vide order dated 04.10.2010, case was committed to the court of sessions by the ld MM.
9 Vide order dated 08.12.2010,ld predecessor of this court decided the charges and accordingly, accused Ajay, Santosh, Vijay Kumar, Dinesh @ Kudya and Anad @ Nanda were charged for the offences u/s 395/396/34 IPC . Accused Dilshad was charged SC No. 137/14 State vs Ajay Kumar etc (Page 6 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC for the offence u/s 412 IPC and accused Vinod Kumar was charged for the offence u/s 414 IPC . All the accused persons pleaded not guilty and claimed to be tried.
10 In order to prove its case, prosecution has examined as many as Twenty five witnesses.
11 Although, the detailed testimonies of the relevant witnesses shall be discussed herein after in the subsequent para's, however, it would be appropriate to discuss in brief the testimonies of those prosecution witnesses to have an overview of the nature and kind of evidence which has come on the record.
12 PW1 Narender Kumar is the owner of the factory situated at H-1, Sector -1, DSIDC , Bawana , Delhi and when he received call from Ram Singh (PW2), he is shown to have reached at the factory and found that goods/articles lying in the factory i.e pipes of printing press have been looted and the chowkidar Jagdish has been murdered. He made a SC No. 137/14 State vs Ajay Kumar etc (Page 7 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC call to the police. Police reached at the spot and recorded his statement ExPW1/1, on the basis of which the present case was registered.
13 PW2 Ram Singh is the person, who first time noticed the incident as he had gone to said factory to bring printing press pipes. He found the gate of the factory opened and the chowkidar was not responding . He informed the matter to the factory owner Narender Kumar.
14 PW3 HC Ram Niwas is formal witness to whom five sealed pullandas and one sample seal of FMT BJRM hospital was handed over by the doctor after postmortem. He handed over said sealed pullandas to the IO and IO seized the same vide memo ExPW3/A. 15 PW4 Inspector H.S Meena , IInd IO , was posted as SHO during the relevant time at P.S Bawana. On receipt of information about the incident , he reached at the spot and prepared site SC No. 137/14 State vs Ajay Kumar etc (Page 8 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC plan ExPW4/A . He has also lifted one printing press pipe stained with blood and prepared cloth pullanda and sealed it with the seal of HSM and seized it vide seizure memo ExPW4/B . He also lifted blood from the spot on the gauze piece and after drying kept it in the plastic container and converted into a parcel and sealed it with the seal of HSM and seized vide seizure memo ExPW4/B. 16 PW4 further deposed that blood stained floor piece was separated from the floor with the help of chisel and Hammer and was kept in a plastic box and converted into a cloth parcel . It was sealed with the seal of HSM and seized vide seizure memo ExPW4/B . Earth control was separated from the floor with the help of chisel and hammer and was kept in a plastic box and was converted into a parcel and sealed with the seal of HSM and seized vide seizure memo ExPW4/B . Five pieces of cardboard smeared with blood were kept in cloth parcel and sealed with the seal of HSM and seized vide seizure memo ExPW4/B. PW4 further deposed that on 28.2.2010, postmortem on the dead body of deceased was got conducted SC No. 137/14 State vs Ajay Kumar etc (Page 9 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC and after postmortem, dead body was handed over to the relatives of deceased.
17 PW5 Ct. Manjeet Kumar was with the IIIrd IO Inspector Raj Singh (PW25) . He is appears to be witness to the arrest and disclosure statement of the accused Ajay and Santosh and also witness to the seizure of vehicle Tata Champion no. DL 1LL 7354 which was seized vide seizure memo ExPW5/D. 18 PW6 Constable Dhananjay Shah was also with the IO Inspector Raj Singh (PW25) and has deposed more or less on the lines of PW25.
19 PW7 S.I Deepak Purohit is the witness who has joined the investigation of the present case alongwith Inspector Raj Singh(PW25) and has testified on the lines of PW25, whose testimony is going to be mentioned a little further.
20 PW8 Bhim Sen is the brother of the
complainant Narender , who has deposed on the
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lines of PW1 Narender Kumar.
21 PW9 Rakesh Kumar is the witness in
whose presence dead body of Jagdish was handed over to his relatives vide receipt ExPW9/A. 22 PW10 HC Brahm Pal is the witness who was posted as MHC(M) at P. Bawana during relevant time and with whom case properties were deposited.
23 PW11 Ct. Bachhu Singh was with Inspector H.S Meena ( PW4) during investigation and has deposed on the lines of PW4.
24 PW12 S.I Mahesh Kumar is the drafts man who on 11.8.2010, is shown to have prepared scaled site plan ExPW12/A. 25 PW13 ASI Ramphal is the duty officer who proved the registration of FIR ExPW13/A, his endorsement ExPW13/B on rukka and certificate u/s 65 B ExPW13/C. SC No. 137/14 State vs Ajay Kumar etc (Page 11 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC 26 PW14 Ct. Jagdish on 3.8.2010, on the instruction of IO took 11 sealed pullandas and one sample seal for depositing the same to FSL , Rohini along with FSL form vide RC no.89/21/10 ExPW10/G. After depositing the same with FSL , he handed over the receipt acknowledgment ExPW10/H to the MHC(M).
27 PW15 ASI Ajay Singh was also with Inspector H.S Meena (PW4) and has deposed on the lines of PW4.
28 PW16 Constable Mahender and PW17 ASI Vijender are the witnesses who were with IIIrd IO Inspector Raj Singh (PW25) during investigation.
29 PW18 HC Surender was with S.I Mahender Pratap(PW23) during investigation.
30 PW19 Constable Sandeep Kumar, photographer with crime team headed by S.I Chand SC No. 137/14 State vs Ajay Kumar etc (Page 12 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC Singh , reached at the spot and took the photographs ExPW19/A 1 to ExPW19/A 35. He proved the Negatives of the photograph as ExPW9/A36 collectively.
31 PW20 ASI Ram Kumar was also member of the crime team headed by S.I Chand Singh .
32 PW21 Dr. V.K Jha conducted postmortem on the body of deceased Jagdish and gave report ExPW21/A. 33 PW22 Insp. Arun Kumar is the IO of a case bearing FIR no.140/10 P.S North Rohini. He is shown to have arrested the accused Ajay and Santosh in that case, where accused persons disclosed about their involvement in the present case along with other co-accused persons. He gave the information regarding the same to the IO of the present case.
34 PW23 S.I Mahender Pratap is the Ist IO who on 27.2.2014, on receipt of DD no.11A Ex SC No. 137/14 State vs Ajay Kumar etc (Page 13 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC PW23/A reached at the spot and recorded the statement of the complainant Ex PW1/A and got registered the FIR. He handed over the investigation to Inspector H.S.Meena(PW4).
35 PW 24 Sh Awdhesh Kumar is the finger print expert . He deposed that on 09.7.2010, two chance print along with specimen slips of ten different persons were received in their office for comparison and were marked to him for analysis /comparison. He further deposed that on comparison , he found that the chance prints sent in his office were unfit for comparison and his report in this regard is ExPW24/A. 36 PW25 Inspector Raj Singh is the IIIrd IO of the present case who took over the investigation on 1.6.2010 . He deposed that on 1.6.2010 , investigation of the present case was entrusted to him after the transfer of Insp. H.S Meena(PW4). On 09.6.2010, he received information from P.S Rohini North regarding apprehension of accused Santosh and Ajay , who were involved in the present case .
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He along with other staff reached PS North Rohini and obtained the copies of disclosure statements recorded by Ins. Arun. PW25 further deposed that on receipt of aforesaid information , he along with HC Bijender(PW17) , S.I Deepak (PW7) and Ct. Dalbir reached at Shahbad Dairy where they met secret informer who told them about the presence of accused Vinod near Arya Samaj Mandir. They all reached there and on the pointing out of secret informer , accused Vinod was arrested vide memo ExPW7/A and his personal search ExPW7/B was carried out. Disclosure statement of accused Vinod ExPW7/C was also recorded wherein he disclosed that he could get the robbed articles recovered from the shop of a scrapped dealer i.e co-accused Dilshad . Accused Vinod further disclosed that he could also get other co-accused persons Vijay , Anad @ Nanda and Dinesh arrested.
37 PW25 Insp. Raj Singh further deposed that accused Vinod led the police party to a bus stand situated at Shahbad dairy and pointed out towards SC No. 137/14 State vs Ajay Kumar etc (Page 15 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC accused Vijay and Dinesh, who were standing there. Accused Vijay and Dinesh were arrested vide arrest memo ExPW7/D and PW7/E and their personal search were conducted vide memo ExPW7/F and ExPW7/G respectively. Disclosure statement of accused Vijay and accused Dinesh ExPW7/H and ExPW7/I were also recorded. Accused Vijay and accused Dinesh pointed out towards the place of occurrence and their pointing out memo ExPW25/A and PW25/B respectively were prepared .
38 PW25 Inspector Raj Singh further deposed that on 11.6.2010 , accused Dinesh led the police party to his house at Shahbad Dairy and from his house got recovered four pipes on which Baba ART was engraved . Those four pipes were sealed with the seal of RS and seized vide seizure memo ExPW7/J. Accused Vijay led the police party to his house and took out four pipes from his house which were robbed by him along with other co-accused persons . Those four pipes were sealed with the seal of RS and seized vide seizure memo ExPW7/K. On 11.6.2010, SC No. 137/14 State vs Ajay Kumar etc (Page 16 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC accused Ajay and Santosh were produced before the court of ld MM . With the permission of court, he interrogated accused Ajay and Santosh and recorded their disclosure statement ExPW16/A and ExPW16/B . Accused Ajay was arrested vide arrest memo ExPW5/A and accused Santosh was arrested vide arrest memo ExPW5/B. 39 PW25 Inspector Raj Singh further deposed that accused Ajay led police party to Yadav Nagar , S.P Badli at the house of his employer and pointed out a champion vehicle bearing no. DL-1LL-7354 and stated that it was used by them in the crime. Said vehicle was seized vide seizure memo ExPW5/D. on 12.6.2010, accused Ajay and Santosh pointed out towards factory at H-1, Sector 1, DSIDC Bawana as the place of occurrence and pointing out memo of accused Ajay and accused Santosh are ExPW7/1 & 2 respectively . Accused Ajay also led the police party to the abandoned plot and produced five iron looted pipes . Same were put into bori and sealed with the seal of RS and were taken into possession SC No. 137/14 State vs Ajay Kumar etc (Page 17 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC vide memo ExPW7/6 . Accused Santosh led the police party to the Jhuggies F Block, SB Dairy and produced four iron looted pipes. Same were put into a bori and sealed with the seal of RS and were taken into possession vide memo ExPW7/7. Accused Vinod, Ajay, Vijay, Santosh and Dinesh also pointed out towards the place of occurrence i.e Shahbad Daulatpur on Rithala Road at a kabadi shop of accused Dilshad vide pointing out memo ExPW25/C to ExPW25/G and stated that it was the same kabadi with whom the stolen /robbed articles were sold.
40 PW25 Inspector Raj Singh further deposed that accused Dilshad was arrested vide arrest memo ExPw7/4 and his personal search was conducted vide ExPW7/5. On 13.6.2010, accused Dilshad got recovered four printing press pipes on which BABA ART was engraved. These four pipes were kept in a gunny bag and sealed with the seal of RS and was seized vide seizure memo ExPW7/3 . Disclosure statement of accused Dilshad ExPW7/N was recorded.
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PW25 further deposed that on 16.7.2010, accused
Anad@ Nanda was produced before the court of ld MM on production warrant. He was interrogated with the permission of court and was arrested vide memo ExPW5/E and his disclosure statement ExPW5/C was recorded. Accused Anad was taken on PC Remand . On 17.7.2010, accused Anad@ Nanda led the police party to Jhuggi at D Block, Shahbad Dairy and got recovered four printing press pipes engraved " BABA ARTS". Those pipes were kept in a gunny bag and were sealed with the seal of RS and seized vide seizure memo ExPW6/C. Accused Anad@ Nanda made a supplementary disclosure statement ExPW6/A and also pointed out towards the factory vide pointing out memo ExPW6/A, and also towards place of kabadi at village shahbad where all accused persons sold the case property. Pointing out memo of accused Anad@ Nanda is ExPw6/B. 41 PW25 Inspector Raj Singh further deposed the during course of investigation he collected PCR Form ExPW25/H , Crime team report ExPW25/J . He SC No. 137/14 State vs Ajay Kumar etc (Page 19 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC also collected certain documents regarding ownership of the factory, attendance register of employees, electricity bill etc and driving license of accused Ajay from Narender Kumar (PW1) and these documents were seized vide seizure memo ExPW1/B and the documents are ExP1 to Ex P4. TIP proceedings of recovered Pipes were got conducted which is ExPW25/L . He also obtained FSL Report ExPW25/N , Chance print report ExPW25/O and scaled site plan ExPW12/A .
42 Thereafter prosecution evidence was closed and statement of accused persons u/s 313 Cr. PC were recorded wherein they have denied the allegations. Accused persons did not opt to lead any evidence in their defence.
43 I have heard the ld Chief Prosecutor for the state and Ld counsel for the accused persons. I have also perused the record very carefully.
44 First of all take the case as against the
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accused persons namely Ajay, Santosh, Dinesh ,
Vijay Kumar and Anad @ Nanda who are facing trial for the offences u/s 395/396/34 IPC. It is not the case of the prosecution that there is eye witness to the incident . That being so, the case of prosecution entirely rests upon circumstantial evidence. It is well settled law that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other persons. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. (Sharad Birdhichand Sarda v. State of Maharashtra , (1984) 4 SCC 116).
45 In the instance case, prosecution has tried to prove its case against aforesaid accused persons on the basis of only one circumstance i.e recovery of some of the looted printing press pipes at their SC No. 137/14 State vs Ajay Kumar etc (Page 21 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC instances. In my opinion the same is not sufficient to convict the accused persons for the offence of dacoity and Dacoity with murder.
46 It has come on record that incident took place in the intervening night of 26/27-2-2010 and the alleged recovery has been shown after 4-5 months of the incident. Even if for the sake of argument , it is presumed that aforesaid looted property i.e four printing press pipes from each of the accused persons were recovered at their instances, then it may be sufficient to hold them guilty for the offence of receiving stolen property but not for the offences for which they have been charged.
47 At this juncture, I may mention that said recovery has not been corroborated by any proper independent evidence. Moreover, recovery of an object is not a discovery of fact, as per the decision of Hon,ble Apex Court in Mano vs. State of Tamil Nadu[2007]13 SCC 795. Recovery must be of a fact which was relevant to connect it with the commission SC No. 137/14 State vs Ajay Kumar etc (Page 22 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC of crime. Therefore, even if the recovery of pipes is reliable then it does not indicate that the above mentioned accused persons committed the offence of decoity with murder and the only admissible fact which can be inferred is that they are in possession of stolen goods.
48 In State of Rajasthan vs. Talevar and Anr.[2011]11 SCC 666 also it was held that where the only evidence against the accused is recovery of stolen property, then although circumstances may indicate that theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of stolen property had committed murder.
49 In the light of aforesaid discussion and case laws, it is very difficult to hold that accused persons namely Ajay, Santosh, Dinesh , Vijay Kumar and Anad @ Nanda had committed the offence of decoity and decoity with murder. The prosecution has miserably failed to bring home the guilt as against the accused persons Ajay, Santosh, Dinesh , SC No. 137/14 State vs Ajay Kumar etc (Page 23 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC Vijay Kumar and Anad @ Nanda for the offences u/s 395/396/34 IPC.
50 Now, take the case as against accused Dilshad , against whom charge is for the offence u/s 412 IPC and against accused Vinod who has been charged for the offence u/s 414 IP and also against other accused persons from recovery of looted pipes have been shown . If testimonies of the prosecution witnesses is put to close scrutiny and analyzed in the light of settled position of law, it becomes crystal clear that even the alleged recovery of looted property from the possession of the accused persons is doubtful for the following reasons:-
a) Incident took place in the intervening night of 26/27-2-2010 but the recoveries are shown to have been effected on 11.6.2010 , 12.6.2010 and 17.7.2010. The story of the prosecution is not appearing improbable one as had the accused persons looted the property , then nobody would have kept the stolen property with them and that is too when it is being alleged that they had sold out the property to "Kabadi". For what purpose they would keep the stolen pipe i.e four pipes each with them ,remained unexplained, which in turn has created doubt in the story of the prosecution.
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b) PW25 Inspector Raj Singh and other prosecution witnesses, who are witnesses to the alleged recovery, have deposed that case property were kept in a gunny bag and sealed with the seal of RS and seized vide various seizure memo's i.e ExPW6/B, ExPW7/J, ExPW7/K, ExPW7/3 and ExPW7/6. Aforesaid recovered pipes were put to TIP proceedings . TIP Proceedings ExPW25/L indicates that after TIP, case property was sealed in six pullanda's sealed with the seal of VKJ. During the examination of PW1 Narender Kumar , case properties have been produced in six boris sealed with the seal of VKJ and each bori was containing four pipes . Only 24 pipes were produced and it was also stated that one pipe of similar type is lying in the malkhana in unsealed condition which has not been brought on that day. When it is shown that all the 25 pipes were sealed after the TIP proceedings in six boris, how one pipe left unsealed and was kept lying in Malkhana, remains unexplained.
c) At the time of examination of PW6, six katta's containing four pipes each is shown to have been produced out of which on four katta's name of accused Vijay, Santosh, Dilshad and Dinesh was found mentioned but it was not there on remaining two katta's. It was not the case of the prosecution that Katta's have been identified according to their recovery from each of the accused persons. When the case property is shown to have been mixed at the time of its identification and again it was sealed with the seal of court of ld MM , how , the case property could be identified pertaining to particular accused , as it is not reflected in the TIP proceedings.
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d) Further, during the examination of PW7 S.I Deepak
Purohit , who is also stated to be the witness to the alleged recovery , replied that he could not identify separately as to which pipe was recovered from whom as there were no particular of the case on the bori. It was also not reflected that particular bori is bearing name of some of the accused persons. Since the entire case of the prosecution from the very beginning is based upon the alleged recovery , therefore, it was the primary duty of the prosecution to prove beyond reasonable doubt the recovery of the case property from the possession of the accused persons and its identification and production before the court at the time of examination of witnesses , which is not there.
e) Further, according to the prosecution accused Ajay got recovered the pipes from abandoned plot. It is very surprising that how the recovery from open plot which is abandoned can be held as recovery from the accused Ajay. It is not the case of the prosecution that accused Ajay is the owner of the said plot and he was in exclusive possession of said plot. Said plot was having excess to the general public and visible to them . There is nothing on record which could suggest that accused Ajay was in exclusive possession of the said plot, therefore, the recovery at the instance of accused Ajay could not be held beyond doubt in the background of the fact that even the owner of the said plot has not been examined.
f) The recovery has been shown at the instance of accused
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Anad@ Nanda from his jhuggi . Again nothing has been brought on record that accused Anad @ Nanda was in exclusive possession of the said Jhuggi and no other members were residing therein. Who is the owner of the said jhuggi, also remains unexplained. Same is the case with respect of recovery of looted pipes at the instance of the accused Santosh from his jhuggi.
51 Moreover, there is no public witness to the alleged recovery from the possession of the accused persons. During the cross examination of prosecution witnesses, who are the witnesses to the alleged recovery, it has come on record that public witnesses were available and no enquiry was made from them . It has also come on record that the family members of some of the accused persons were also present . There was, thus, ample opportunity for the investigating agency to join independent witnesses, but they did not made any endeavor to associate some persons who could witness recovery. No cogent explanation has been given for non joining of public witnesses. The routine explanation that they refused to join the proceedings would not suffice in the present case.
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u/s 395/396/ 34 and 412/414 IPC
52 In the present case prosecution tried to
bring home guilt of the accused persons by relying upon the versions of prosecution witnesses regarding recovery of stolen pipes from their possession. Although, all these witnesses testified on the lines of the prosecution story but a bare perusal of their version clearly reflects the same to be of stereo type thus it will be highly unsafe to rely upon their version to pass the order of conviction against the accused. It has been held in 1975 CAR 309 (SC) that :
" Prosecution case resting solely on the testimony of Head Constable and three other police constables. No independent witness examined. Prosecution story appearing improbable and unnatural held that the prosecution case cannot be said to be free from reasonable doubt and the accused is liable to be acquitted".
53 In a case law reported as Anoop Joshi v/s State reported at 1992(2) C.C. Cases 314(HC),Hon'ble High Court of Delhi has observed as SC No. 137/14 State vs Ajay Kumar etc (Page 28 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to joint he raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC
54 In the matter titled as Roop Chand v/s The State of Haryana reported at 1999(1) C.L.R 69, Hon'ble Punjab & Haryana High Court held as under:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the petitioner witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the SC No. 137/14 State vs Ajay Kumar etc (Page 29 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC ground that their joining will result into enmity between them and the petitioner.
4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recoverybut they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the name and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful."
SC No. 137/14 State vs Ajay Kumar etc (Page 30 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC 55 In another matter titled as Sadhu Singh V/s State of Punjab reported at 1997(3) Crimes 55, Hon'ble Punjab & Haryana High Court observed as under:-
"5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
6. In the present case, the State examined two witnesses namely,Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype type statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version".
56 In the present case it has come on the SC No. 137/14 State vs Ajay Kumar etc (Page 31 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC record that public witnesses were available . As such it could be said that IO did not make sincere efforts to join public witnesses to the alleged recovery of looted pipes from the possession of the accused persons and this failure on the part of the IO in view of above said case laws creates a very serious doubt in the prosecution version.
57 Moreover, the case property and accused remained in control of police officials till the case property was deposited in the malkhana. Hence tampering with the case property cannot be ruled out as the seal remained all along with the police officials. There is nothing on record which could suggest that handing over or taking over memo in respect of the seal was prepared.
58 In the matter titled as State of Himachal Pradesh v/s DharamDass reported at 1992(1) C.L.R, it has been ruled that the prosecution has to prove the guilt against beyond all reasonable doubt and that too by leading independent, reliable and SC No. 137/14 State vs Ajay Kumar etc (Page 32 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the benefit of every doubt occurring in the prosecution case.
59 Here it is pertinent to mention that accused Vinod has been charged for the offence u/s 414 IPC on the allegations that he assisted co-accused persons in disposing off the stolen property. Qua this also evidence is not sufficient to convict him for said offence. Mere disclosure statement of the accused persons are there which is not sufficient in this regard.
60 In the present case, I find that the prosecution has miserably failed to prove the offences against the accused persons beyond shadow of doubt. Thus, I am left with no option but to acquit the accused persons . Accused persons namely Ajay Kumar , Santosh, Dinesh @ Kudya , Vijay Kumar and Anad@ Nanda stands acquitted for offences u/s 395/396/34 IPC, Accused Dilshad stands acquitted for the offence u/s 412 IPC and accused SC No. 137/14 State vs Ajay Kumar etc (Page 33 of 34 ) FIR no. 47/10 D.O.D 04.09.2014 P.S Bawana u/s 395/396/ 34 and 412/414 IPC Vinod Kumar stands acquitted for the offence u/s 414 IPC.
61 In terms of section 437(A) CrPC, all the accused persons are directed to furnish bail bond in the sum of Rs 10,000/- each with one surety in the like amount.
62 File be consigned to record room.
Announced in the open (Rajesh Kumar Goel) Court today i.e 04.9.2014 ASJ-5, North Rohini Court SC No. 137/14 State vs Ajay Kumar etc (Page 34 of 34 )