Delhi District Court
State vs . Rajinder Singh Negi & Ors. on 19 March, 2011
State vs. Rajinder Singh Negi & Ors.
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE: Sessions Case No. 242/09
FIR No. 1201/98
PS Lajpat Nagar
U/s 396/412/34 IPC
State Vs. 1. Rajinder Singh Negi, S/o Sh. Hukam
Singh, R/o RZ25, Manav Kalyan
Kendra, Okhla PhaseII, New Delhi.
2. Rajeshwar Prasad, S/o Sh. Chand
Dev Prasad, R/o RZ25, Manav Kalyan
Kendra, Okhla PhaseII, New Delhi.
3. Jai Prakash, S/o Sh. Phool Chand,
R/o B2, Navjeevan Camp, Govind
Puri, New Delhi.
4. Mohd. Anwar Hussain, S/o Sh.
Mohram Ansari, R/o B23, Navjeevan
Camp, Govind Puri, New Delhi.
5. Rajesh Kumar, S/o Sh. Subhash, R/o
F2/352, Sangam Vihar, New Delhi.
6. Sunil Kumar Jain, S/o Sh. Janeshwar
SC No. 242/09 1/41
State vs. Rajinder Singh Negi & Ors.
Dass, R/o 3891, Gali No.8, Shanti
Mohalla, Krishna Nagar, New Delhi.
Date of institution : 07.05.1999
Case received by way of transfer : 29.07.2009
Date when arguments were heard : 10.03.2011
Date of Judgment : 19.03.2011
JUDGMENT
The prosecution case is as under:
1. An incident of dacoitycummurder took place on the night of 29/30.11.1998 in premises No. 410, Sant Nagar. The complainant Smt. Shashi Yadav used to run her business of cutting and furnishing of garments under the name and style of Siddharth Exports in this premises. She had engaged Perfect Safeguard Company for the security of this premises. On 29.11.1998, she had left security guard namely Sunil Kumar Jha and left the office at about 7 pm after locking the store and the office. The security guard used to remain inside the premises after locking the same. At about 10.30 pm, she had made a call to the security guard Sunil Kumar Jha to inquire about her pet dog who was sick. She again made a call at about 7 am on 30.11.1998 to inquire about the condition of her pet dog but nobody picked up the phone. When she made call again after half an hour, same thing happened and the phone was not picked up. Therefore, SC No. 242/09 2/41 State vs. Rajinder Singh Negi & Ors.
she called Sh. Ram Kishan (her neighbour) and asked her to verify why security guard is not picking up the phone. Sh. Ram Kishan after some time gave a call to complainant Smt. Shashi Yadav informing her that the door was open and there was nobody in the premises. The complainant then asked Ram Kishan to put some lock on the premises. By this time, the security guard for day duty had also come and the complainant also reached the spot at around 9.15 am. She found the lock of the godown open and the bales of cotton were found missing. She immediately call the PCR and the police came to the spot. When they entered the premises, the dead body of the security guard Sunil Kuma Jha was found under the bales of the cloth. His both hands were tied with the cloth, his neck was also tied with the cloth strip and a similar cloth strip was tied on his eyes. After taking stock of the situation and recording the statement of Smt. Shashi Yadav (Ex. PW1/A), S.I. K.L. Yadav, Incharge Police Post Garhi, PS Lajpat Nagar prepared the rukka (Ex. PW22/A) and sent Constable Manvir for the registration of the case for the offence U/s 302 and 394 IPC. The FIR was accordingly registered for the said offences. The crime team was also called and the photographs were taken. After the registration of the case, the investigation was assigned to Inspector Jai Singh. He seized one iron rod (Ex. P1) and one broken lock (Ex. P2) from the spot vide memo Ex. PW22/B. He also seized one black colour uniform shirt having cut marks and one cap vide memo Ex. PW22/C. One empty bottle of liquor from SC No. 242/09 3/41 State vs. Rajinder Singh Negi & Ors.
the first floor of the premises was also taken into possession vide memo Ex. PW22/D. Some buds of bidis and pouches of Rajdarbar Jarda Masala were also found at the spot which were also seized as per the memo Ex. PW22/E.
2. The dead body was sent to AIIMS Hospital. The postmortem was conducted on 01.12.1998. As per the postmortem report, the death of Sunil Kumar Jha (security guard) was due to asphyxia as a result of manual and ligature strangulation thus confirming that it was homicidal death. On the identification of his brother Satish Kumar and his nephew Vivekanand, the dead body was handed over to them after the postmortem.
3. On 03.12.1998, SI K.L. Yadav got some lead in the investigation and he conducted a raid at House No. 3891, Gali No.8, Shanti Mohalla, Old Seelam Pur, Delhi, the house of the accused Sunil Kumar Jain. From this house, the bundles of clothes were seized which were identified by one Rakesh Kumar, an employee of Siddharth Exports. These bundles of clothes were seized as per the memo Ex. PW4/A after they were compared with the sample of the clothes given by the complainant Smt. Shashi Yadav which were collected by SI K.L. Yadav on 01.12.1998. The list of stolen items was also given to SI K.L. Yadav on 01.12.1998 by Smt. Shashi Yadav This list (Ex. PW1/B) contained the details of the clothes which was found missing and the quantity thereof.
4. On 06.12.1998, the Investigating Officer got a secret SC No. 242/09 4/41 State vs. Rajinder Singh Negi & Ors.
information and accordingly, the accused Rajinder Singh Negi and Santosh Kumar (juvenile sent for trial before the JJB) were arrested. On the same day, another accused Rajeshwar Prasad was also arrested. The accused Rajeshwar Prasad got recovered one Tempo Tata 407 bearing No. DL1LB8937 which was seized by the IO as per the memo Ex. PW11/D. The accused Rajinder Singh Negi had given the disclosure statement with regard to his other associates Mohd. Anwar Hussain and Jai Prakash (both accused) and on the identification of accused Rajinder Singh Negi, both these accused Mohd. Anwar Hussain and Jai Prakash were apprehended at about 5 pm near Okhla DTC Depot. All the accused namely Rajinder Singh Negi, Mohd. Anwar Hussain, Rajeshwar Prasad and Jai Prakash were brought to the Police Post Garhi, where their disclosure statements were recorded vide Ex. PW11/G2, Ex. PW11/G4, Ex. PW11/G1 and Ex. PW11/G5 respectively. At their instance, the pointing out memo of the place of occurrence was prepared. The Investigating Officer associated Rakesh Kumar and one Shashi Kant Pandey in the investigation.
5. During this further investigation, the accused Rajinder Singh Negi led to recovery of two bundles of cotton cloth which were identified by Rakesh Kumar and Shashi Kant Pandey (PW4 and PW3 respectively) and the same were seized vide memo Ex. PW3/B. Thereafter, the accused Rajeshwar Prasad led to Manav Kalyan Camp, New Delhi and from his jhuggi, got recovered two bundles of cotton check from an iron box which were also identified by Rakesh and Shashi Kant Pandey and the same were SC No. 242/09 5/41 State vs. Rajinder Singh Negi & Ors.
seized vide memo Ex. PW3/C. The accused Jai Prakash led the police party to his jhuggi at Navjeevan Camp, Govind Puri, New Delhi and also got recovered one bundle of cotton check which was also identified by Rakesh and Shashi Kant Pandey and seized by the IO as per the memo Ex. PW3/D. The accused Mohd. Anwar Hussain led to the recovery of one Eastman Blue StreakII made in USA cutting machine bearing Serial No. 98924, which was seized vide memo Ex. PW3/E. Thereafter, all the case property so recovered at the instance of the accused persons, were deposited at the Malkhana.
6. On 16.01.1999, the accused Rajesh Kumar was arrested from Sangam Vihar and his disclosure statement was recorded vide Ex. PW22/K. He also pointed out the place of occurrence and on 17.01.1999 from his House No. F2/352, Sangam Vihar, New Delhi, the IO recovered a bundle of cotton check from a diwan (bed) which was seized vide memo Ex. PW22/M. On 18.01.1999, the accused Sunil Kumar Jain was arrested whose disclosure statement was recorded vide Ex. PW22/O.
7. The scaled site plan of the place of incident was got prepared by the Draftman. The accused persons were taken for Test Identification Parade. All the accused had refused to join the TIP. Thus, after completing the investigation, the charge was filed in the court. The charge sheet, however, was filed for the offence U/s 396 IPC and 412 IPC qua the accused Mohd. Anwar Hussain, Jai Prakash, Rajeshwar Prasad, Rajesh SC No. 242/09 6/41 State vs. Rajinder Singh Negi & Ors.
Kumar and Rajinder Singh Negi and the accused Sunil Kumar Jain was sent for trial for the offence U/s 412 IPC only. One accused namely Santosh Kumar was a juvenile. Hence, the charge sheet qua him was filed before the Juvenile Court. After completing the committal proceedings, the case was committed to the Sessions Court for trial.
8. On 07.08.2000, my Ld. Predecessor framed the charges for the offence U/s 412 IPC against the accused Sunil Kumar Jain. The accused Rajesh Kumar, Mohd. Anwar Hussain, Jai Prakash, Rajeshwar Prasad and Rajinder Singh Negi were also charged for the offence U/s 412 IPC and they all were charged for the offence U/s 396 IPC read with Section 34 IPC. The accused had pleaded not guilty and had claimed the trial.
9. As per the case of the prosecution, the dacoity and murder was committed in the premises No. 410, Sant Nagar, New Delhi and to prove the nexus of the accused persons with the commission of the offence, the prosecution examined following witnesses in the sequence of their examination: 9.1 PW1 is Smt. Shashi Yadav, the complainant who was running the business of garment exports in the name of Siddharth Exports at 410, Sant Nagar, New Delhi, the premises where the dacoity has taken place. She has proved her complaint Ex. PW1/A. During the investigation, she had also handed over the list of the articles stolen from her premises vide Ex. PW1/B. She had also given some samples of the fabrics which were SC No. 242/09 7/41 State vs. Rajinder Singh Negi & Ors.
stolen, to the IO as per the memo Ex. PW1/C. As per her statement, she had made a call at her factory in the morning and when there was no response, she made a contact with her neighbour in the vicinity who was informed that there was no response from the factory, therefore, he should go there and check the same. She further deposed that the neighbour (PW2 Ram Kishan) informed her that the door of the factory was lying open and the security guard was not present inside the factory. Thereafter, she asked him to put a lock on the door of the factory. She reached the factory at about 9/9.30 am and saw the main gate was locked by her neighbour as per her instruction. She got the same opened and inside the premises, she found that the lock on the basement was lying open and she also noticed that several fabrics were missing. Therefore, she made a call to the Police Control Room. She deposed that the police had arrived at the spot and found a dead body of the security guard, covered with fabric cuttings. The name of the security guard was Sunil Kumar Jha who was the employee of the security agency, which was employed by her. 9.2 PW2 is Ram Kishan, who was residing near the premises No. 410, Sant Nagar, New Delhi, where the incident took place. He had deposed that at about 5 am, he had seen a tempo make Tata 407 sky blue colour in front of 410, Sant Nagar in which goods were being loaded. He corroborate PW1 that he had received a call from Smt. Shashi Yadav (PW1), owner of the factory at 410, Sant Nagar, New Delhi and at her request, he visited the factory but got no response from the security guard SC No. 242/09 8/41 State vs. Rajinder Singh Negi & Ors.
of the factory. He called the security guard but again there was no response. He conveyed this to Shashi Yadav (PW1), who asked him to put his lock on the factory and he picked up the lock of the factory which was found near the gate and put the same on the gate. He further deposed that he could not see the faces of the persons who were loading the goods in the tempo.
9.3 PW3 is Shashikant Pandey, who was working with M/s Siddharth Exports in the month of December 1998. He deposed that after about one week of the incident, he had accompanied the police to Navjeevan Camp at Okhla PhaseII, from where a cutting machine was recovered. He further deposed that four bales of clothes were also recovered and he had identified the said articles as belonging to Siddharth Exports. This witness did not support the prosecution with regard to the identity of the accused with whom the articles so recovered were found nor he supported the prosecution case with regard to the exact place from where the recovery was effected. Although he admits his signature on the recovery memos Ex. PW3/A, 3/B, 3/C and 3/D. 9.4 PW4 is Rakesh Kumar. He is again a labourer, working at the Siddharth Exports who deposed about the theft having taken place in the factory on the night of 30.11.1998. He had stated that on 03.12.1998, he was taken to Shanti Mohalla, Krishna Nagar by the police and had reached House No. 3891, Gali No.8, Shanti Mohalla, Krishna Nagar. From this house, 6/7,000 meters of cloth belonging to his factory was recovered SC No. 242/09 9/41 State vs. Rajinder Singh Negi & Ors.
which was identified by him. This witness was also declared hostile by the prosecution as he was not supporting it with regard to the ownership of the house from where the recovery of the cloth was effected and he also deposed that the cutting machine which was recovered from Manav Kalyan Kendra, Okhla PhaseII in his presence but he did not see any of the accused at the time of recovery. In the cross examination by the Ld. Addl. Public Prosecutor, he had identified his signature on the recovery memos. 9.5 PW5 is Satish Kumar, who had identified the dead body of the security guard namely Sunil Kumar Jha vide the identification memo Ex. PW5/A. 9.6 PW6 is Vivekanand, uncle of the deceased Sunil Kumar Jha, who identified the dead body vide Ex. PW6/A. 9.7 PW7 is SI Rajinder Kumar, who had inspected the scene of crime at 410, Sant Nagar and lifted one chance print from a wine bottle and handed over the report Ex. PW7/A to the IO.
9.8 PW8 HC Rohtash Singh has deposed that on 30.11.1998, he was posted at PS Lajpat Nagar as MHC (M) and on the said date, Inspector Jai Singh had deposited four pulandas sealed with J.S with him. He also deposed that on 03.12.1998, SI K.L. Yadav deposited a bundle of cloth and on 06.12.1998, Inspector Jai Singh deposited one cutting machine, one tempo and clothes etc. with him and he made relevant entries with regard to these deposit of articles vide Ex. PW8/A to Ex. PW8/D. SC No. 242/09 10/41 State vs. Rajinder Singh Negi & Ors.
9.9 PW9 is Constable Rajpal, formal witness who had taken the dead body to the hospital for postmortem.
9.10 PW10 is Constable Manvir Singh. He had taken the rukka given by SI K.L. Yadav to PS Lajpat Nagar and he got the case registered. 9.11 PW11 is HC Nassu Ahmed. He had joined the investigation with SI K.L. Yadav on 03.12.1998. He deposed that on 03.12.1998, he had visited House No. 3891, Gali No.8, Shanti Mohalla, Krishna Nagar. He deposed that from the first floor of the house, the stolen cloth was recovered which was identified by Rakesh Kumar, the worker in the factory. This cloth was seized vide memo Ex. PW4/A. He also joined the investigation on 06.12.1998 when the accused Rajinder Singh and one Santosh Kumar (juvenile who was sent for trial to JJB) were apprehended near Manav Kalyan Camp, Okhla PhaseII, who had informed about the co accused Rajeshwar Prasad who was apprehended near Okhla Depot. He deposed that at the instance of accused Rajeshwar Prasad, the Tempo No. DL1LB8937 was seized. He further deposed that the accused Rajinder Singh Negi had disclosed that two of his associates namely Mohd. Anwar Hussain and Jai Prakash would meet him at Okhla Depot and consequently they were apprehended from near the Okhla Depot. He further deposed that at the instance of accused Mohd. Anwar Hussain, Jai Prakash, Rajeshwar Prasad and Rajinder Singh Negi, the bundles of clothes were recovered which were seized by the IO.
SC No. 242/09 11/41
State vs. Rajinder Singh Negi & Ors.
9.12 PW12 is Santosh Jha. He was a security guard on duty in Sant Nagar on the night of 29/30.12.1998. He deposed that at about 11 pm, three persons had come in premises No. 410, Sant Nagar. On his inquiry, they told that they were working in premises No. 410, Sant Nagar and he had accompanied them up to the premises. He deposed that they got the door opened from the security guard and they went inside. Thereafter, he left the place. He further deposed that at about 5 am, those three persons got a tempo and loaded the cloth and went away. He further deposed that at about 11 am, he came to know that the security guard, who opened the door in premises No. 410, Sant Nagar, has been murdered. In the cross examination by the state, he had identified one accused Mohd. Anwar Hussain by face when his attention was drawn towards him. He could not identify the rest of the accused persons.
9.13 PW13 is Lady Constable Urmila, who was working at PCR on the night of 30.11.1998 and had received the information regarding a theft in premises No. 410, Sant Nagar, New Delhi. She recorded the information and flashed the same to PS Lajpat Nagar.
9.14 PW14 is Lady Constable Shakuntala, who was also posted at PCR on the date of incident.
9.15 PW15 is HC Jagat Kumar, who had joined the investigation with the IO on 01.12.1998 when the complainant Smt. Shashi Yadav had given the list of fabrics which were found stolen from the premises and the other invoices and the bills pertaining to the said clothes. SC No. 242/09 12/41
State vs. Rajinder Singh Negi & Ors.
9.16 PW16 is HC Ranbir Singh, who was the DD Writer at Police Post Garhi on 30.11.1998. At about 9.45 am, he had received the information from Lady Constable Shakuntala from PCR regarding the theft in premises No. 410, Sant Nagar.
9.17 PW17 is ASI Anita Rai, who had registered the FIR Ex. PW17/A on the basis fo rukka sent by SI K.L. Yadav.
9.18 PW18 is Harnam Singh. He is the husband of Smt. Jasvir Kaur, the registered owner of Tempo No. DL1LB8937 Tata 407. He deposed that the accused Rajeshwar Prasad was the driver on this tempo and on 29.11.1998, he was informed by the driver that he was carrying certain goods from Sant Nagar to Gandhi Nagar.
9.19 PW19 is Inspector Devender Singh, the Draftman who had prepared the site plan Ex. PW19/A. 9.20 PW20 is Mahesh Sharma, the photographer who had taken the photographs Ex. PW20/B1 to B12.
9.21 PW21 is Pradeep Singh. He is the Manager of Bhageshwari Exports, who deposed that the bills Ex. PW1/A4 to PW1/A22 are from Bhageshwari Exports and the invoice had been issued in the name of Siddharth Exports.
9.22 PW22 is SI K.L. Yadav, the initial Investigating Officer of the case who had effected recovery of the clothes on 03.12.1998 from the house of the accused Sunil Kumar Jain. He had also joined the SC No. 242/09 13/41 State vs. Rajinder Singh Negi & Ors.
investigation with the IO Inspector Jai Singh on 06.12.1998 as well when the recovery was effected from the house of the other accused persons. 9.23 PW23 is Dr. O.P. Murthy, who had proved the postmortem report of the deceased Sunil Kumar Jha vide Ex. PW23/A. 9.24 PW24 Dr. Sunil Kumar Sharma had conducted the postmortem of Sunil Kumar Jha.
9.25 PW25 is Ms. Swarnkanta Mehra, the then Metropolitan Magistrate, who has proved the TIP proceedings of the accused Jai Prakash vide Ex. PW25/A; of Rajinder Singh vide Ex. PW25/C; of Rajeshwar Prasad vide Ex. PW25/E and of Mohd. Anwar Hussain vide Ex. PW25/G. She deposed that all the accused have refused to join the Test Identification Parade Proceedings on 19.02.1999.
9.26 PW26 is Constable Akhand Pratap. He was the Special Messenger, who delivered the special report to the Ilaka Magistrate, DCP South and the Joint Commissioner.
9.27 PW27 is Sh. Dharmesh Sharma, the then Metropolitan Magistrate, who had conducted the TIP of the accused Rajesh Kumar vide Ex. PW27/1.
9.28 PW28 is Ms. Barkha Gupta, Ld. Metropolitan Magistrate, who had conducted the TIP of the case property on 17.02.1999 vide Ex. PW28/A. 9.29 PW29 is HC Bandana Oran, who was the MHC (M) at PS SC No. 242/09 14/41 State vs. Rajinder Singh Negi & Ors.
Lajpat Nagar.
9.30 PW30 is Inspector Jai Singh, the Investigating Officer of the case.
10. The statement of accused persons were recorded U/s 313 Cr.P.C in which the incriminating evidence against them was explained.
11. In this case, the accused Sunil Kumar Jain faced trial for the offence U/s 412 IPC. The evidence with regard to the recovery of the cotton bales from his house was put to him. He took the defence that nothing was recovered from his premises or at his instance. He stated that the recovery has been planted upon him. He did not prefer to lead evidence in defence. The accused Rajesh Kumar was arrested in this case on 16.01.1999 and the recovery was effected at his instance. His defence was that the recovery has been planted upon him. Accused Rajinder Singh Negi also denied the recovery from his premises as was the case of the prosecution. The accused Rajeshwar Prasad also denied the recovery from his premises. As per the prosecution case, accused Rajeshwar Prasad was the driver of the tempo No. DL1LB8937 Tata 407 which was used for transportation of the cloth. He also denied the recovery of the said truck at his instance. Accused Jai Prakash also denied the recovery at his instance or from his house. The accused Mohd. Anwar Hussain also denied that the cutting machine was recovered at his instance or from his residence. However, none of the accused has preferred to lead evidence in defence.
12. I have heard the arguments from the Ld. Addl. Public SC No. 242/09 15/41 State vs. Rajinder Singh Negi & Ors.
Prosecutor for the state, from Sh. H.S. Sharma Ld. Counsel for the accused Sunil Kumar Jain, Sh. Jaswinder Singh Ld. Counsel for the accused Rajesh Kumar and Sh. M.K. Sharma, Ld. Counsel for rest of the accused persons.
13. The case of the prosecution is that on the night of 29/30.11.1998, dacoity was committed in premises No. 410, Sant Nagar, New Delhi, in which the security guard Sunil Kumar Jha was killed. The prosecution had, therefore, to prove, first; the dacoity and secondly, the nature and the circumstances in which death of Sunil Kumar Jha has taken place whether it was homicidal or otherwise. The first question, therefore, comes about the theft of the cloth from the premises of the complainant Smt. Shashi Yadav. The statement of PW1 Smt. Shashi Yadav may be read in this regard. She deposed that she runs a business of garment export in the name of Siddharth Export at 410, Sant Nagar. She had employed a security agency and on the date of incident, she had left the premises after locking the same and leaving the security guard. She had called the security guard in the early morning, but there was no response from him. Therefore, she called her neighbour Mr. Ram Kishan (PW2). He informed PW1 Smt. Shashi Yadav that the door of the premises was lying open and there was no guard. He put the lock which was lying nearby on the door. PW1 Smt. Shashi Yadav reached the spot and found the fabric from the basement, missing. She lodged a complaint Ex. PW1/A giving the details. Her statement with regard to the missing of fabric or the theft of the fabric from her premises could not be challenged in the cross examination as SC No. 242/09 16/41 State vs. Rajinder Singh Negi & Ors.
nothing could come on the record to make her statement with regard to the theft, doubtful. She had also given a list of the articles giving details of the fabric which was stolen from the premises (Ex. PW1/B).
14. PW2 Ram Kishan is the resident of House No. 411, Sant Nagar, New Delhi i.e the adjacent house to the premises where the theft took place. As per his deposition, at around 5 am, he had seen one tempo Tata 407 of sky blue colour being loaded in front of 410, Sant Nagar. Then, comes the statement of PW12 Santosh Jha. He was the security guard in Sant Nagar and was on duty on the night of 29/30.11.1998. As per his deposition, he had come to his duty at 10 pm and at around 11 pm, three persons had come in premises No. 410, Sant Nagar. He inquired about them and they told that they worked in premises No. 410, Sant Nagar and he accompanied them up to the premises. He deposed that those three persons were loading the cloth in the tempo. So, the statement of PW1 Smt. Shashi Yadav, PW2 Ram Kishan and PW12 Santosh Jha leaves no room for doubt that a theft has taken place in premises No. 410, Sant Nagar. The complainant has no motive to lodge a false complaint of theft. PW2 Ram Kishan is an independent witness who had seen the articles/cloth being loaded in the tempo at around 5 am in the morning and similarly PW12 Santosh Jha has seen the cloth being loaded in the tempo. So, the prosecution was successful in proving that theft has taken place in the premises of the complainant Smt. Shashi Yadav on the night of 29/30.11.1998.
15. The question now comes about the death of the security guard SC No. 242/09 17/41 State vs. Rajinder Singh Negi & Ors.
whose dead body was found in the basement. PW1 Smt. Shashi Yadav deposed that when she came to her factory and found the fabric missing, she called the police and when the police entered the premises, the dead body of the security guard was found lying covered with the fabric cuttings. PW22 SI K.L. Yadav is the police official who had first visited the premises and he deposed that on 30.11.1998, he was posted as Incharge Police Post Garhi and on an information regarding the theft at 410, Sant Nagar, New Delhi vide DD No. 8 (Ex. PW16/B), he had reached the place of incident. He deposed that there was a godown in the basement and the lock of the godown was open. The raw clothes were found lying disturbed. He deposed further that when he checked the clothes, he found the dead body of a male who was later on identified as the security guard Sunil Kumar Jha. He deposed that the hands of the security guard were tied. One strip of the cloth was around his neck and his eyes were also covered with a cloth strip. PW24 is Dr. Sunil Kumar, who conducted the postmortem and PW23 is Dr. O.P. Murthy who had also given the opinion on the postmortem report Ex. PW23/A. As per the postmortem report, there was a ligature mark around the neck and a few nail marks over the lower front aspect of the neck. There was a fracture of the thyroid bone. The cause of death was given as asphyxia due to cumulative effect of manual and ligature strangulation and both the manners were found adequate individually as well as collectively to cause death. The statement SC No. 242/09 18/41 State vs. Rajinder Singh Negi & Ors.
of PW1 Smt. Shashi Yadav, PW22 SI K.L. Yadav and that of PW24 Dr. Sunil Kumar and PW23 Dr. O.P. Murthy coupled with the postmortem report and the cause of death given in the same, it can be safely and conclusively held that it was a homicidal death. The deceased Sunil Kumar Jha, thus, has been killed when the dacoity took place. He was seen alive on the evening of 29.11.1998 as deposed by PW1 Shashi Yadav and his dead body was found in the morning in the basement of premises No. 410, Sant Nagar where a theft also took place on the night. The necessary and the logical inference is that the death has been caused during the commission of the offence of dacoity. Thus, Section 396 IPC has been invoked in the charge sheet and rightly so.
16. Now, the question comes about the connectivity of the accused persons with the offence. There is no direct evidence in the present case regarding the involvement of the accused persons in the commission of the offence of dacoity. The case, therefore, is based on circumstantial evidence. The law on circumstantial evidence is well settled 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 person. 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.
SC No. 242/09 19/41
State vs. Rajinder Singh Negi & Ors.
17. In Bhagat Ram v. State of Punjab, (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
18. A reference may also be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus is on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are :
(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 a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one SC No. 242/09 20/41 State vs. Rajinder Singh Negi & Ors.
to be proved; and there must be a chain of evidence so complete as not to 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.
19. To prove a case by circumstantial evidence, the prosecution must complete the chain of evidence and there should not be any break in the chain. In the present case, there is no such chain of circumstances rather there is only one circumstance which the prosecution is using to connect the accused persons with the offence. That circumstance is the recovery of the stolen articles/clothes from the possession of the accused persons. Section 114 Illustration (a) of the Evidence Act says that when a person is found in possession of a stolen goods soon after the theft, then the Court may presume that he is either the thief or has received the goods knowing them to be stolen, unless of course, he can account for his possession. The prosecution, thus, has to prove first; the recovery from the possession of the accused and secondly, the recovery from the accused is connected with the offence. In other words, the recovery is of the stolen articles/ the goods.
20. The prosecution alleges that the recovery was effected from the accused persons of the stolen articles. Although the incident took place on the night of 29/30.11.1998, but no lead was found in the case till 03.12.1998. On 03.12.1998, PW22 SI K.L. Yadav utilized his sources and SC No. 242/09 21/41 State vs. Rajinder Singh Negi & Ors.
came to know from a secret informer that the stolen goods can be recovered from premises No. 3891, Gali No.8, Shanti Mohalla, Krishna Nagar. PW22 SI K.L. Yadav on 03.12.1998, visited this premises. He was accompanied by HC Nassu Ahmed (PW11) and one Rakesh (PW4) who was a labourer at the Siddharth Export. PW22 deposed with regard to the recovery that on 03.12.1998, he took an employee of the factory and in Old Seelam Pur, Delhi, he got the secret information that one Sunil Kumar Jain used to purchase stolen articles. He asked the public persons to join the investigation, but none agreed. So, he visited House No. 3891, Gali No.8, Shanti Mohalla, Krishna Nagar. The gate was open and one lady was found present in the house, who informed PW22 SI K.L. Yadav that the house belongs to Sunil Kumar Jain. She left the house on the pretext of calling Sunil Kumar Jain, but did not return. He further deposed that thereafter, he searched the house and found it full of cloth bundles and the witness Rakesh Kumar (PW4) identified that the cloth belong to his factory. The bundles of cloth were seized as per the memo Ex. PW4/A. A similar statement is given by PW11 HC Nassu Ahmed with certain variation. The variation is to the effect that PW11 deposed that the lady who met at premises No. 3891, Gali No.8, Shanti Mohalla, Krishna Nagar, left the house on the pretext of calling Sunil Kumar Jain but did not return. However, the President of the market alongwith 2/3 persons were told about the facts of the case and in their presence, the search was conducted. He further deposed that at the first floor of the house, the SC No. 242/09 22/41 State vs. Rajinder Singh Negi & Ors.
stolen cloth was lying and it was seized vide memo Ex. PW4/A on the identification by the employee of Siddharth Export namely Rakesh Kumar (PW4).
21. PW4 Rakesh Kumar has deposed in the court that he works as a labourer at Siddharth Export at 410, Sant Nagar, New Delhi. A theft took place on the intervening night of 29/30.11.1998 in the factory in which some bundles of cloth and a cutting machine was stolen. He further deposed about his visit to House No. 3891, Gali No.8, Shanti Mohalla, Krishna Nagar alongwith the police and recovery of about 6/7,000 meters cloth. However, he is not aware to whom the said house belong. This is the evidence of recovery of stolen articles/goods/cloth from the house of accused Sunil Kumar Jain at premises No. 3891, Gali No.8, Shanti Mohalla, Krishna Nagar.
22. Now, I come to the recovery which has been effected from the premises of the other accused persons. On 06.12.1998, Inspector Jai Singh (PW30), the IO of the case alongwith SI K.L. Yadav (PW22), HC Nassu Ahmed (PW11) and other police officials reached Okhla Industrial Area where they apprehended the accused Rajinder Singh Negi at the instance of the secret informer alongwith one Santosh Kumar (Santosh Kumar was a juvenile and faced the trial before the JJB). Accused Rajinder Singh Negi was arrested from Main Road, Manav Kalyan Kendra, Okhla PhaseII and he told the police officials about the involvement of the other coaccused. At his instance, the accused Rajeshwar Prasad was apprehended near Okhla SC No. 242/09 23/41 State vs. Rajinder Singh Negi & Ors.
Depot. At the instance of accused Rajeshwar Prasad, one tempo Tata 407 No. DL1LB8937 was also seized as per the memo Ex. PW11/D. Thereafter, the IO (PW30) reached DTC Depot, Okhla at about 5 pm and he apprehended two persons at the instance of the accused Rajinder Singh Negi, namely Mohd. Anwar Hussain and Jai Prakash (both the accused). They were arrested vide memo Ex. PW11/E and Ex. PW11/F respectively. After their apprehension, they were brought to Police Post Garhi, where their disclosure statements were recorded. The disclosure statement of accused Rajinder Singh Negi is Ex. PW11/G2, that of accused Rajeshwar Prasad is Ex. PW11/G1, that of accused Mohd. Anwar Hussain is Ex. PW11/G4 and that of accused Jai Prakash was recorded vide Ex. PW11/G5. All the accused thereafter, pointed out the place of incident i.e 410, Sant Nagar, New Delhi. The IO thereafter, joined in the investigation, the public witnesses Rakesh Kumar (PW4) and Shashi Kant Pandey (PW3). The accused Rajinder Singh Negi as per his disclosure statement led the police party to his jhuggi and got recovered one bundle of cotton cloth from RZ25 in the jhuggi cluster, Manav Kalyan Kendra, Okhla PhaseII which was seized vide memo Ex. PW3/B. The accused Rajeshwar Prasad also led to recovery of bundle of cloth from jhuggi RZ25, Manav Kalyan Kendra, Okhla PhaseII which was seized vide memo Ex. PW3/C. Thereafter, the police officials visited Navjeevan Camp, Govind Puri. Here, accused Mohd. Anwar Hussain got recovered SC No. 242/09 24/41 State vs. Rajinder Singh Negi & Ors.
one cutting machine made in USA from jhuggi No. B23, Navjeevan Camp, Govind Puri which was seized vide memo Ex. PW3/A and the accused Jai Prakash got recovered one bundle of cotton cloth from jhuggi No. B2, Navjeevan Camp, Govind Puri which was seized vide memo Ex. PW3/D.
23. On 16.01.1999, the accused Rajesh Kumar was arrested from Sangam Vihar where his disclosure statement was recorded vide Ex. PW22/K. He also pointed out place of occurrence and on 17.01.1999, from F2/352, Sangam Vihar, he got recovered a bundle of cloth check from a diwan which was seized vide memo Ex. PW22/M.
24. So, during the investigation, the Investigating Officer effected recovery of the stolen articles from the possession of the accused persons pursuant to their disclosure statements. A distinction has to be drawn in the case of the accused Sunil Kumar Jain because recovery from House No. 3891, Gali No.8, Shanti Mohalla, Krishna Nagar, was not effected pursuant to his disclosure statement. He was arrested in the present case on 18.01.1999. So, the recovery which was shown to be effected from House No. 3891, Gali No.8, Shanti Mohalla, Krishna Nagar was prior to the arrest of the accused. Therefore, the prosecution had an additional burden to prove that the recovery so effected on 03.12.1998, was from the house of the accused Sunil Kumar Jain. So far as the other accused are concerned, the prosecution had to prove that the cloth so recovered at their instance, was the stolen cloth from the premises No. 410, Sant Nagar, New Delhi. SC No. 242/09 25/41
State vs. Rajinder Singh Negi & Ors.
Thus, the identity of the cloth stolen and the identity of the cloth recovered had to be established to connect the accused with the offence. The recovery in this case acquires so much of importance that it can be the sole basis for connecting the accused not only with the dacoity, but also with the murder of the security guard Sunil Kumar Jha. Therefore, the effect of the recovery, the evidence with regard to the recovery and the evidence with regard to the identity of the cloth has to be looked into cautiously.
25. First of all, I shall deal with the recovery effected from the premises No. 3891, Gali No.8, Shanti Mohalla, Krishna Nagar. As per the prosecution, this premises belongs to the accused Sunil Kumar Jain and the recovery was effected from this premises on the basis of the secret information received by SI K.L. Yadav (PW22). The recovery which has been shown from this premises, is being linked to the accused Sunil Kumar Jain and as per the prosecution case, he received this stolen property knowing that this property was obtained by commission of dacoity. The Ld. Counsel for accused Sunil Kumar Jain had argued taht there is no evidence to show that the premises No. 3891, Gali No.8, Shanti Mohalla, Krishna Nagar belongs to accused Sunil Kumar Jain; that there is no evidence that any recovery was effected from this premises except the statement of the police officials; that there is no evidence that the recovery, if effected, was that of the stolen property because there is no identification of this property by any method.
26. The statement of PW11 HC Nassu Ahmed and PW22 SI K.L. SC No. 242/09 26/41 State vs. Rajinder Singh Negi & Ors.
Yadav would show that the search was conducted at premises No. 3891, Gali No.8, Shanti Mohalla, Krishna Nagar on the basis of a secret information. Once this information was with the IO and he had to conduct the raid at the premises to recover the stolen property, then the law enjoin upon him to follow the procedure for conducting raid as provided in the Criminal Procedure Code. Section 100 (4) Cr.P.C enjoin upon the police to join two respective inhabitants of the locality in which, place to be searched is situated. Since this recovery from premises No. 3891, Gali No.8, Shanti Mohalla, Krishna Nagar is not subsequent or pursuant to the disclosure statement of an accused, the question now arise whether SI K.L. Yadav (PW22) who intended to conduct a search at premises No. 3891, Gali No. 8, Shanti Mohalla, Krishna Nagar, made any effort to join a public witness. As per the prosecution case, the only public witness at the time of search and subsequent recovery of the clothes from premises No. 3891, Gali No.8, Shanti Mohalla, Krishna Nagar, was PW4 Rakesh Kumar. He was working with the Siddharth Export at whose premises, the dacoity was committed. Admittedly, the accused Sunil Kumar Jain was not in the premises. Now with regard to the joining of a public witness, the evidence of SI K.L. Yadav (PW22) and HC Nassu Ahmed (PW11) may be seen. PW11 HC Nassu Ahmed has deposed in the examination in chief that when they went to the house, they met wife of accused Sunil Kumar Jain who left the house on the pretext of calling her husband. No identity of this woman who met them, has been established in the trial. He further states SC No. 242/09 27/41 State vs. Rajinder Singh Negi & Ors.
that the President of the market alongwith 2/3 persons had reached there who were told about the facts of the case and in their presence, search was conducted. This statement of HC Nassu Ahmed (PW11) is in the examination in chief and not on any query in the cross examination. Therefore, this is a positive assertion of a fact by the witness and, therefore, becomes the case of the prosecution. PW11 SI K.L. Yadav, however, has something else to say regarding the joining of a public witness. He deposed that on 03.12.1998 before making the recovery of the stolen articles, he had made request to the public persons to join the investigation, but they refused. It means that no public person had joined them when the recovery was effected. This statement of SI K.L. Yadav (PW22) is diametrically opposite to the statement of PW11 HC Nassu Ahmed. If it is believed that the President of the market alongwith 2/3 persons was present at the time of recovery, then it was expected from PW22 SI K.L. Yadav to at least take their signatures on the seizure memo Ex. PW4/A or their names should have figured in the seizure memo. So, it is doubtful whether the recovery was effected in the presence of any independent person. PW4 Rakesh Kumar who was also with the police team at the time of recovery nowhere says that any person from the locality was with them at the time of such recovery. PW22 in his statement has deposed that there were three rooms at the ground floor and two rooms at the first floor of the premises No. 3891, Gali No.8, Shanti Mohalla, Krishna Nagar and the recovery was effected from the ground floor as well as the first floor. He further deposed SC No. 242/09 28/41 State vs. Rajinder Singh Negi & Ors.
that only 15 bundles of fabric relating to the case were recovered. Rest of the fabric was left at the house. PW11 HC Nassu Ahmed deposed that the cloth was kept in premises No. 3891, Gali No.8, Shanti Mohalla, Krishna Nagar in two rooms and the entire cloth lying in those two rooms was seized and nothing was left in those rooms. Now, PW22 SI K.L. Yadav says that only 15 bundles of cloth were recovered and rest of the cloth was left at the spot. PW11 HC Nassu Ahmed says otherwise. This discrepancy is vital in view of the fact that the accused Sunil Kumar Jain as per the statement of PW11 deals in the cloth business. If there was some cloth found in the said premises which the prosecution alleges belongs to accused Sunil Kumar Jain, there would not be anything unusual in this. So, when PW11 says that entire cloth was removed, one can believe that every piece of cloth was a stolen property in the house of the accused Sunil Kumar Jain when he himself was a cloth merchant. So, the recovery becomes doubtful because of the version of PW22 SI K.L. Yadav and PW11 HC Nassu Ahmed.
27. Now, the question comes about the identity of the cloth which was recovered. SI K.L. Yadav (PW22) had taken one Rakesh Kumar (PW4), an employee of Siddharth Export with him to effect the recovery. First of all, it may be stated that Rakesh Kumar was an employee of Siddharth Export has nowhere been proved by any evidence except that PW4 Rakesh Kumar himself says that he was working as a labourer with the Siddharth Export. But since his assertion is not being challenged, then SC No. 242/09 29/41 State vs. Rajinder Singh Negi & Ors.
court will accept his statement that he was working with the Siddharth Export. However, one thing is to be kept in mind that he stated that he was a labour in the Siddharth Export. Now, PW4 Rakesh Kumar in his statement, deposed that they had reached premises No. 3891, Gali No.8, Shanti Mohalla, Krishna Nagar from where 6/7,000 meters cloth belonging to their factory, was recovered which was identified by him. The question now arise how he identified that the cloth shown to him belongs to Siddharth Export. In the cross examination, he deposed that there was no special label on the cloth lying in their factory. He further deposed that there was no special mark on the recovered cloth. If there was no special label or special marking on the cloth which was stolen and the cloth which was recovered, then on that basis and by using which method he identified the property, is not clear to the court.
28. Contradicting this statement of PW4 Rakesh Kumar, is the statement of PW11 HC Nassu Ahmed. He deposed that cloth recovered from the house of accused Sunil Kumar Jain was having identification mark of "Siddharth" which was printed on the material. This fact as stated above was not mentioned by PW4 in his statement rather he was very categorical that there was no specific marking on the cloth which was recovered. Now, the question arise whether the recovery team had any sample of the cloth which was stolen to match with the recovered articles. The statement of PW22 SI K.L. Yadav needs to be looked into in this regard. When he was specifically asked, he told that they did not have any sample of the stolen SC No. 242/09 30/41 State vs. Rajinder Singh Negi & Ors.
property at the time of recovery form premises No. 3891, Gali No.8, Shanti Mohalla, Krishna Nagar. Now, what is the evidence with regard to the identification of the recovered property. PW4 who identified the recovered articles clearly said that neither there was any specific mark on the cloth which was stolen nor any specific label was found on the cloth which was recovered. PW11 says that there was a special marking of "Siddharth" on the cloth which was recovered but other two witnesses of the recovery are silent on this aspect rather the statement of PW4 Rakesh Kumar is contradicting the statement of PW11 HC Nassu Ahemd in this regard. PW22 SI K.L. Yadav says that they did not have any sample with them at the time of recovery.
29. So, firstly there is no independent witness to the recovery although PW11 HC Nassu Ahmed says that the President of the market was with them at the time of recovery, but he has neither been cited as a witness nor his signatures are found on the seizure memo Ex. PW4/A nor his name is mentioned in the seizure memo. Secondly, the identity of the cloth which has been recovered from the premises No. 3891, Gali No.8, Shanti Mohalla, Krishna Nagar has not been established. Apart from this, there is no evidence on the record to show that premises No. 3891, Gali No. 8, Shanti Mohalla, Krishna Nagar is the residence or the shop of the accused Sunil Kumar Jain. Although in the statement U/s 313 Cr.P.C, accused Sunil Kumar Jain is not denying this that premises No. 3891, Gali No.8, Shanti Mohalla, Krishna Nagar was his residence, but the burden to SC No. 242/09 31/41 State vs. Rajinder Singh Negi & Ors.
prove cannot be shifted upon the accused unless the prosecution first prove its own case. It was not difficult for the Investigation Officer to ascertain about the ownership of premises No. 3891, Gali No.8, Shanti Mohalla, Krishna Nagar, but no effort in this direction seems to have been made by the Investigation Officer. SI K.L. Yadav (PW22) got the information and straightaway entered the house which was not inhabited by anybody at that particular time and took away the entire cloth which was lying there. Either the IO SI K.L. Yadav was unaware about the requirement of the Criminal Procedure Code or his version of the recovery of such a huge quantity from this premises, is a farce.
30. Now, I come to the recovery effected from the accused Rajesh Kumar. The Investigating Officer (PW30) of the case deposed that on 16.01.1999, accused Rajesh Kumar was arrested from Sangam Vihar, New Delhi. On whose identification he was arrested, it is not disclosed. What was the evidence before the Investigating Officer on 16.01.1999 to arrest the accused Rajesh Kumar, is not clear. Be that as it may be the prosecution case, is that the recovery of a bundle of cloth was effected at the instance of accused Rajesh Kumar from House No. F2/352, Sangam Vihar on 17.01.1999 vide the memo Ex. PW22/M. The seizure memo shows that the recovery of the bundle of cloth was effected from a diwan which was kept in House No. F2/352, Sangam Vihar. The total length of the cloth was 33 meters. A very pertinent question arise, was this 33 meters of cloth the share of the booty for the accused Rajesh Kumar or it SC No. 242/09 32/41 State vs. Rajinder Singh Negi & Ors.
was retained by the accused as a sample. It is highly improbable that a person who commits a serious offence like dacoity, will keep one piece of evidence in his possession which can any time inculpate him for the offence. It is to be noted that the incident took place on the night of 29/30.11.1998 and this recovery is effected on 17.01.1999. First, keeping of this cloth in the house by the accused is improbable. Further, the question arise, who identified this cloth to Inspector Jai Singh (PW30) that it was the stolen cloth. No person accompanied Inspector Jai Singh (PW30) at the time of recovery of this cloth, meaning thereby he recovered this cloth and seized it in a pulanda with the seal of J.S simply on the basis of the disclosure statement of accused Rajesh Kumar. The Ld. Addl. Public Prosecutor had argued that this piece of cloth was duly identified by one witness Rakesh Kumar in the TIP Proceedings on 17.02.1999. The TIP Proceedings Ex. PW28/A have been perused. It may be noted that the sample which were brought by the IO for mixing with the case property, were not brought in a sealed pulanda. The IO had brought two bundles of cloth which were similar in colour, texture in print as that of the case property. The witness identified the case property but again a question arise, on what basis he had identified the case property. Is it the case of the prosecution that the kind of cloth which has been produced in the TIP, is a rare variety which is not available easily in the market? Therefore, simply the identification by a labour of the complainant, will not be sufficient to prove the case when the said witness SC No. 242/09 33/41 State vs. Rajinder Singh Negi & Ors.
has not given the basis on which the cloth was identified by him.
31. Now, I come to the question of the recovery from other accused. As per the prosecution case and as deposed by PW11, PW22 and PW30, the recovery was effected from the house of accused Rajinder Singh Negi on 06.12.1998 from Jhuggi No. RZ25, Manav Kalyan Kendra, Okhla PhaseII. On the same day, the recovery was effected from the jhuggi of accused Rajeshwar Prasad at Manav Kalyan Kendra and also from the jhuggi of accused Mohd. Anwar Hussain and Jai Prakash in Navjeevan Camp, Govind Puri, New Delhi. The accused Mohd. Anwar Hussain was found in possession of a cutting machine which belong to the complainant. All the four accused were arrested on the same day. They were taken to the police station. Their disclosure statement was recorded and the recovery was also effected on the same day. The police officials had taken the help of one Rakesh Kumar (PW4) and Shashi Kant Pandey (PW3). PW3 Shashi Kant Pandey was declared hostile and was cross examined by the Ld. Addl. Public Prosecutor. PW3 deposed that he had accompanied the police to Navjeevan Camp at Okhla PhaseII, from where a cutting machine was recovered. He deposed that he does not know from whose possession, the machine was recovered nor he can identify the said person. He further deposed that from the same place, four bales of cloth were recovered. Now, this is not the case of the prosecution. As per the prosecution case, the cutting machine was recovered from accused Anwar Hussain from whom, no cloth was recovered. PW3 says that from the place from which SC No. 242/09 34/41 State vs. Rajinder Singh Negi & Ors.
the cutting machine was recovered, four bales of cloth were also recovered. If this statement is connected with the prosecution version, then the accused Anwar Hussain was found in possession of four bales of cloth. However, this is not the case of the prosecution. Thus, the statement of PW3 loses its value on this ground itself as his statement is contrary to the case of the prosecution. His further statement in the cross examination by the state, is that he did not tell the police that a cutting machine was recovered from Jhuggi No. B23, Navjeevan Camp, Govind Puri at the instance of the accused Mohd. Anwar Hussain. PW4 Rakesh Kumar is also a witness to the recovery of the cutting machine. He stated in the examination in chief that the cutting machine was recovered from Manav Kalyan Kendra, Okhla PhaseII. Now, as per the case of the prosecution, the recovery of the machine was effected from the possession of accused Mohd. Anwar Hussain from B23, Navjeevan Camp, Govind Puri, New Delhi, but the witness of recovery (PW4) Rakesh Kumar says that this cutting machine was recovered from Manav Kalyan Kendra, Okhla PhaseII. Thus, the evidence is contradictory with regard to the place from which the cutting machine was recovered. In the cross examination, PW4 Rakesh Kumar categorically denied the suggestion of the Ld. Addl. Public Prosecutor that the cutting machine Ex. P1 was recovered at the instance of accused Mohd. Anwar Hussain from Jhuggi No. B23, Navjeevan Camp, Govind Puri, New Delhi. He further deposed in the examination in chief that he had not seen any accused at the time of recovery.
SC No. 242/09 35/41
State vs. Rajinder Singh Negi & Ors.
32. As per the prosecution case, the police officials had received the information about the accused and first they had apprehended accused Rajinder Singh Negi and at his instance, they apprehended accused Mohd. Anwar Hussain also. But the PW11 HC Nassu Ahmed, PW22 SI K.L. Yadav and PW30 Inspector Jain Singh nowhere say that the public witness Rakesh Kumar and Shashi Kant Pandey (PW4 and PW3 respectively) were also with them. When, these two witnesses joined police officials, is not clear.
33. The recovery which has been effected from the accused Rajinder Singh Negi, Jai Prakash and Rajeshwar Prasad has also the same fate. PW4 Rakesh Kumar and PW3 Shashi Kant Pandey did not support the prosecution case. They denied the suggestion of the Ld. Addl. Public Prosecutor that the recovery was effected in the presence of the accused Rajinder Singh Negi, Rajeshwar Prasad and Jai Prakash.
34. Again, a very pertinent question arise. When these accused had committed dacoity and they had also arranged for a purchaser of the stolen articles, why would they retain a very small quantity of the cloth with themselves. It is improbable that a person who commits theft and disposed of the major portion of the stolen articles would keep a small portion with him which has a definite tendency to incriminate him for an offence. Therefore, the conduct of the accused which has been projected by the prosecution, is sounding improbable.
35. So far as the charge of Section 396 IPC is concerned against the SC No. 242/09 36/41 State vs. Rajinder Singh Negi & Ors.
accused persons, except the accused Sunil Kumar Jain, there is no iota of evidence that they were the persons who committed dacoity in the premises No. 410, Sant Nagar, New Delhi. The prosecution had examined one witness PW12 Santosh Kumar Jha to show that the accused Mohd. Anwar Hussain alongwith two more persons had come at premises No. 410, Sant Nagar on the night of 29.11.1998. However, he did not identify any accused in the examination in chief. In the cross examination, he stated that he can identify the accused Mohd. Anwar Hussain by face as one of the boy but cannot identify the rest of the accused. This identification of the accused Mohd. Anwar Hussain is for the first time in the court. The incident took place on the night of 29.11.1998 and PW12 was examined on 15.07.2002. So, almost after four years, he is identifying one person whom he met on a night for a couple of minutes. Accused Mohd. Anwar Hussain was arrested on 06.12.1998 and after the recovery was effected from him as per the prosecution case, his TIP was fixed. His TIP Ex. PW25/E shows that he had refused to join the TIP proceedings as he was shown to the witnesses in the police station and his photographs were taken. PW25 is Ms. Swarnkanta, the then Metropolitan Magistrate who conducted the TIP Proceedings. As per her statement, the application for TIP was moved on 04.01.1999. It may be noted here that the accused was arrested on 06.12.1998 and the application for his TIP is being moved on 04.01.1999 i.e after 28 days and the TIP is being conducted on 19.02.1999. The Ld. Magistrate had fixed the TIP on 07.01.1999 in the Central Jail, Tihar. The SC No. 242/09 37/41 State vs. Rajinder Singh Negi & Ors.
TIP could not be conducted as the witness was not available. PW25 deposed that the TIP could not be conducted on 07.01.1999 and after several adjournments in the case, the TIP was conducted on 19.02.1999. These adjournments were granted on the ground of nonavailability of the witness. A long delay in applying for the TIP of the accused and non availability of the witness who could identify the accused, reduced the value of the evidence of the refusal by the accused to join TIP proceedings. It cannot be ruled out that in such a long duration, the accused might have been shown to the witnesses when he was brought for extension of the judicial remands. So far as other accused are concerned, there is no evidence to connect them with the offence of Section 396 IPC.
36. The accused Rajeshwar Prasad is being linked with the offence firstly, on the basis of the recovery of cloth and secondly, with the evidence that he had arranged and was driving the tempo No. DL1LB8937 which as per the prosecution, was used for the transportation of the stolen cloth. Now, there is no evidence that the tempo Tata 407 which was seen by PW2 Ram Kishan outside the premises No. 410, Sant Nagar in which the cloth was being loaded, was having Registration No. DL1LB8937. Here again, the prosecution has relied upon the disclosure statement of the accused and tried to connect him with the offence. PW18 Harnam Singh was examined by the prosecution, who deposed that this tempo is registered in the name of his wife Smt. Jasbir Kaur. He deposed that on 29.11.1998, his driver Rajeshwar Prasad informed him that he has to carry goods from SC No. 242/09 38/41 State vs. Rajinder Singh Negi & Ors.
Sant Nagar to Gandhi Nagar. However, in the cross examination, he was even unable to identify the accused Rajeshwar Prasad. So, the question arise whether the person Rajeshwar Prasad referred in the examination in chief of PW18 Harnam Singh, is the same person who was facing the trial in the court. There is no clear answer to this question. The nexus of the tempo Tata 407 bearing No. DL1LB8937 could not be established with the commission of the offence. The nexus could have been proved only when the prosecution could have collected the evidence that the tempo seen on the scene of crime was bearing the Registration No. DL1LB8937, but there is no such evidence.
37. In a case when there is no direct evidence, the Investigating Agency has to collect the circumstantial evidence. One of the circumstance against an accused can be the availability of his fingerprints at the scene of crime. In the present case also, the Investigating Officer took this step and one chance print was lifted from the wine bottle from the spot. The fingerprints of the accused were also taken by the Investigating Officer and sent for comparison in the laboratory. Now, it is very strange that the Investigating Officer Inspector Jai Singh did not even bother to collect the report of the fingerprints. His callous attitude with regard to such an evidence needs to be looked into. He deposed that the chance prints were taken from the spot, however, it did not tally with the fingerprints of any of the accused. When specifically asked by the court as to on what basis he said that fingerprints of any of the accused did not tally with the chance SC No. 242/09 39/41 State vs. Rajinder Singh Negi & Ors.
print, he answered that he had sent one person to Fingerprint Bureau and he was informed that the fingerprints of the accused did not tally with any of the accused. The court further asked a question to the Investigating Officer (PW30) Inspector Jai Singh whether he obtained the Fingerprint Bureau Report to the effect that the fingerprints of none of the accused tally with the chance print and his answer was in negative. On a further query, he told that he did not talk to any of the officer of the Fingerprint Bureau to verify whether the chance print tally with the fingerprints of any of the accused or not and he was not even aware as to whom he had sent to Fingerprint Bureau to verify about the report.
38. The manner in which the Investigating Officer had dealt with this evidence of chance print, shows his casual attitude. The Fingerprint Bureau Report has not seen the light of the day. There is nothing before the court to draw any inference in favour or against the accused with regard to the chance print which has been lifted from the spot. It may be that the chance print could have met the fingerprints of any of the accused or it may be that the chance print did not tally with the fingerprints of any of the accused. Still, it was the duty of the Investigating Officer to collect the Fingerprint Bureau Report and place the same on the file. The Investigating Officer has, thus, withheld a vital evidence from the court.
39. The prosecution, thus, has not been successful in proving its case beyond reasonable doubt against the accused. So far as the charge U/s 396 IPC is concerned, there is not an iota of evidence. Therefore, the SC No. 242/09 40/41 State vs. Rajinder Singh Negi & Ors.
accused Rajinder Singh Negi, Rajeshwar Prasad, Jai Prakash, Mohd. Anwar Hussain and Rajesh Kumar deserve a clear acquittal for the charge U/s 396 IPC read with Section 34 IPC.
40. So far as the charge U/s 412 IPC is concerned against the accused persons, the recovery shown to be effected from the accused persons, seems to be doubtful. Not only the manner in which the recovery has been shown is doubtful, but the identity of the case property, which is alleged to be recovered from their possession, has not been clearly established with the cogent evidence. The law is well settled that the statement of police officials with regard to the recovery of the stolen articles, can also be believed in the absence of independent witnesses, but it would depend upon case to case. In the present case, even if the recovery is believed, its identity is still doubtful. Therefore, the accused Sunil Kumar Jain, Rajinder Singh Negi, Rajeshwar Prasad, Jai Prakash, Mohd. Anwar Hussain and Rajesh Kumar deserve a benefit of doubt with regard to the charge U/s 412 IPC. Hence, all the accused are acquitted of the charge U/s 412 IPC read with Section 34 IPC by giving them a benefit of doubt. File be consigned to Record Room.
Announced in open court (AJAY KUMAR KUHAR)
Dated: 19.03.2011 Addl. Sessions Judge02: South East
Saket Court: New Delhi
SC No. 242/09 41/41