Delhi District Court
State vs . 1. Mohd. Jahangir Khan @ Takla, on 31 March, 2012
IN THE COURT OF SH. VIRENDER BHAT, A.S.J., DWARKA
COURTS, NEW DELHI.
SC No.137/11.
Unique Case ID No.02405R0384052009.
State Vs. 1. Mohd. Jahangir Khan @ Takla,
S/o Mohd. Munshi Khan,
R/o Village Aushi De Tola,
P.S. Bispi, Distt. Madhubani (Bihar).
2. Mohd. Vakil,
S/o Mohd. Shafiq,
R/o E-218, Jhuggi
Near Shadipur Depot,
Katputli Colony,
Delhi.
3. Mohd. Shakil,
S/o Mohd. Shabbir,
R/o Jhuggi, Jakhira Flyover,
Inder Lok,
Delhi.
4. Mohd. Aziz @ Guddu,
S/o Mohd. Riyaz,
R/o Footpath, Paharganj,
Delhi.
5. Rajan Saha,
S/o Sh. Utim Lal Saha,
R/o H. No.77, Virender Singh Ka Makaan,
Veer Kunwar Singh Colony,
Hinu, Ranchi (Jharkhand).
Date of Institution : 28.11.2008.
FIR No.267 dated 12.5.2008.
U/s. 395/397/412 IPC &
25/27/54/59 Arms Act.
P.S. Dabri.
SC No.137/11. Page 1 of 26
Date of reserving judgment/Order : 17.3.2012.
Date of pronouncement : 31.3.2012.
JUDGMENT
1. The accused have been charge-sheeted by the police for having committed the offences punishable u/s.395/397/412 IPC and u/s.25/27 of Arms Act. Prosecution alleges that the accused have committed dacoity in the house of complainant Seema Sharma and looted jewellery as well as cash therefrom on 12.5.2008.
2. The FIR in this case has been registered on the following statement of the complainant Smt. Seema Sharma, which was recorded by SI Narender Singh, who alongwith Const. Amar Singh had reached the spot of incident after receipt of DD No.22 :
"I am a housewife. My husband and my children left for their office and school respectively at 10.30 a.m. My husband is engaged in the business of interior decoration. I, my sister-in-law (Devrani) Rajbala and servant Noor Alam were in the house. At about 11.45 a.m. I was present in my house situated on the second floor and the servant Noor Alam was mopping the floor. In the meanwhile, I saw that a person aged about 30 - 35 years and 5'6" tall, fair complexion, stout built and short haired, came to my room and told me hat he is a crime reporter and he has received an amount of Rs.10 Crores as 'Supari' from one Malhotra and asked me to take out whatever I possess. Two - three boys aged 25 - 30 years and slim bodied also entered the room. I asked them, who they were and the boy, who had entered my room first took out his pistol and asked me to take out the cash as well as jewellery immediately. I asked them to first SC No.137/11. Page 2 of 26 take me to the room of my sister-in-law (Devrani). They took me to the room of my Devrani and kept myself, my Devrani and servant Noor Alam in that room. They tied the mouth of Noor Alam. All of them were having pistols and countrymade revolvers and started searching each and every room of the house one by one. They took a good amount of cash and jewellery and thereafter kept us in the bathroom. They took cash and jewellery in our bags, one was of red colour with prints and another was of blue colour with words 'SAP' written on it. These persons have trespassed in our house and looted cash as well as jewellery at the point of arms. Till now, I have come to know that one gold neckchain with pendant, three gold necklaces, two pairs of earrings, about 100 silver coins, 10 pairs of anklets and about Rs.25 lacs in cash have been looted. The full details of the articles looted would be given later on after I and my family members do a thorough check. I can identify all those, if shown to me. Legal action may be taken against them."
3. After the registration of the FIR, further investigation was continued by SI Narender Singh. He got the spot of incident inspected by the Crime Team and also prepared rough site plan of the spot of incident at the instance of the complainant. He checked the dossiers of the criminals in various districts and also interrogated certain suspects, but could not come to any conclusion. Chance fingerprints were lifted from the spot and sent to Fingerprint Bureau, Malviya Nagar, for examination.
4. Further case of the prosecution is that on 31.8.08 SI Narender Singh received DD No.111-B, which was recorded pursuant to the information received from SOS/Crime Branch, Sunlight Colony, New Delhi, to the effect that one of the offenders namely Rajan Saha has been arrested u/s.14.1 (d) of Cr.PC, who SC No.137/11. Page 3 of 26 would be produced before the Duty M.M. the next day i.e. 31.8.08. The DD also mentioned that the accused Rajan Saha has made a disclosure statement, in which he has admitted his involvement in the aforesaid dacoity incident. Accordingly, SI Narender Singh reached Patiala House Court on 31.8.08 and arrested accused Rajan Saha in this case. He refused to participate in TIP and was taken on police remand. During interrogation, he admitted his involvement in the incident of dacoity and further disclosed that he had received Rs.3 Lacs from the looted booty and he purchased a TSR mini door for Rs.2,10,000/- and a Hunk motorcycle for Rs. 59,000/- in the name of his brother-in-law from the aforesaid amount. Both the aforesaid vehicles were seized. The looted mobile phone bearing IMEI No.359945000295694 of make-Fly and having mobile no.9910211900 was recovered from accused Rajan Saha. He also disclosed the name of his associates in the crime as Mohd. Shakil, Mohd. Vakil, Zaved @ Mukesh, driver of Mohd. Vakil and Guddu. Accused Guddu @ Mohd. Aziz, accused Mohd. Vakil and accused Mohd. Shakil were also apprehended by SOS Crime Branch, Sunlight Colony, New Delhi, and were produced before the concerned Magistrate on 30.9.08 and thereafter, were arrested in this case. They also refused to take part in TIP proceedings and were sent to police custody. Accused Mohd. Vakil got recovered one countrymade revolver alongwith three live rounds, which had been used in the offence, one gold ring, two pairs of Chutki and a pair of small tops, which were identified by the complainant. Accused Mohd. Aziz @ Guddu got recovered one button actuated knife used in the offence and two gold rings. Accused Mohd. Shakil got recovered one countrymae revolover alongwith three live rounds used in the incident and four numbers of bangles made SC No.137/11. Page 4 of 26 of some yellow colour metal. He also got recovered his share of booty amounting to Rs.41,300/- from his house in his native village Dharai, District Sultanpur, U.P. All the three accused pointed out the place of incident.
5. It is further the case of the prosecution that the accused Mohd. Jahangir Khan @ Takla has also been arrested by SOS Crime Branch, Sunlight Colony, New Delhi, u/s.41.1 Cr.PC and later on, he was arrested in this case. He also refused to participate in TIP proceedings. During police remand, he pointed out the spot of incident as well as the Maruti vehicle, which had been used in the offence.
6. After completion of the investigation, all the five accused were charge-sheeted for the offences as mentioned herein-above.
7. After committal of the case to the Court of Sessions, following Charges were framed against all the five accused on 07.8.2009 :
"That you all on 12.5.08 at about 11.45 a.m. committed dacoity, in furtherance of your common intention, alongwith other co-accused Javed, who is absconding, at House No.RZ-B-2, Raghu Nagar, Pankha Road, Dabri, within the jurisdiction of P.S. Dabri. You, thereby, committed an offence punishable u/s.395 IPC read with Section 34 IPC and within my cognizance.
Secondly, on the abovesaid date, time and place, you all in furtherance of your common intention, while committing dacoity at the aforesaid place, you SC No.137/11. Page 5 of 26 all used deadly weapon, in order to facilitate the commission of dacoity by keeping the complainant Smt. Seema Sharma, her sister-in-law and her servant, in the fear of death or of causing grevious hurt. You thereby committed an offence punishable u/s.397 IPC read with Section 34 IPC and within my cognizance.
Thirdly, you accused Rajan Saha, Mohd.
Shakil, Mohd. Aziz and Mohd. Vakil were found in possession of looted property in the aforesaid dacoity. You thereby, committed an offence punishable u/s. 412 IPC read with Section 34 IPC and within my cognizance."
8. The prosecution has examined 21 witnesses to prove the Charges against the accused. The accused were examined u/s.313 Cr.PC on 17.12.2011, wherein they denied their involvement in the offences and claimed innocence. Accused Rajan Saha examined his brother-in-law Sh. Manoj Kumar as DW1 in his defence. The other accused did not lead any evidence in their defence.
9. I have heard Ld. APP for State, Ld. Counsel for the accused and have scrutinized the oral as well as documentary evidence put forward by the prosecution.
10. Ld. APP submitted that the testimony of the eye witnesses i.e. PW1 Mrs. Seema Sharma, PW2 Smt. Raj Bala and PW3 Sh. Noor Alam, proves the guilt of the five accused beyond any reasonable doubt. He further submitted that the recovery of looted articles/cash at the instance of the accused leaves no scope for their innocence. On the other hand, Ld. Counsel for the accused vehemently submitted that the accused have been framed in this case by the officials of SOS Crime Branch as well as SC No.137/11. Page 6 of 26 P.S. Dabri. He submitted that the prosecution has failed to prove who first reported the incident to the police and to whom does mobile phone no. 981498731 belong, which is mentioned in DD No.22A. He further submitted that there are various inconsistencies in the deposition of PW1 and PW2, which make them unreliable witnesses. He also submitted that admittedly chance fingerprints were lifted from the spot of incident by the Crime Team, but they have not been compared with the fingerprints of the accused and therefore, it cannot be said that the accused were the assailants. He further argued that the alleged recoveries at the instance of the accused cannot be believed as there is no public witness to the same. He further argued that the prosecution case that accused Rajan Saha had purchased the TSR minidoor and Hero Honda Hunk motorcycle from the looted money has been demolished by DW1, who has deposed that he had purchased these two vehicles from the funds arranged by him alone. He urged this court to acquit all the five accused.
11. The complainant Mrs. Seema Sharma and her sister-in- law (Devrani) Mrs. Raj Bala, who are the eye witnesses to the incident, have been examined as PW1 and PW2 respectively. Both of them have identified all the five accused to be the assailants, who committed the dacoity in their house on the date of incident i.e. 12.5.2008. PW1 has proved her statement Ex.PW1/A, on the basis of which the FIR has been registered in this case. She has reiterated the contents of that statement in her examination-in- chief and I do not see any major departure or variations in the two statements of this witness. The statement Ex.PW1/A has been SC No.137/11. Page 7 of 26 reproduced herein above and I feel it unnecessary to repeat the examination-in-chief of this witness as both are in synch with each other so far as the circumstances in which the incident took place and the articles looted in the incident are concerned. PW2 has also corroborated the version of PW1 and I do not see any major contradictions in the deposition of the two witnesses. She further stated that her mobile phone bearing no.9910211900 which was lying on the bed in her room was also taken away by the accused and she identified the said mobile phone Ex.P11 when shown to her in the court.
12. Besides narrating the details of the incident, PW1 also stated that the assailants had disconnected their landline telephone prior to the commission of the offence. She was also witness to the recovery of the two gold rings, a knife with a Katta at the instance of accused Mohd. Aziz, recovery of four gold bangles at the instance of accused Mohd. Shakil and recovery of tops as well as Chutki at the instance of accused Mohd. Vakil. She proved seizure memo in respect of these articles as Ex.PW1/C, Ex.PW1/D and Ex.PW1/E respectively. According to her, Mohd. Aziz had recovered the articles from bushes near MTNL office, whereas accused Shakil and accused Vakil have got recovered the said articles from their respective jhuggies. She identified all these articles when shown to her during her testimony.
13. PW1 in her cross examination deposed that she did not know when the accused persons were arrested and her husband told her about their arrest. She also stated that the police officials had showed her the photographs of some suspects and also SC No.137/11. Page 8 of 26 prepared sketches of the assailants at her instance. She further stated that she had seen the accused persons on 06.10.08. PW2 in her cross examination has stated that she had seen the accused persons at the time of occurrence and thereafter, when they were brought near her house by the police. She further stated that perhaps accused Rajan was brought on 02.9.08. Thereafter, three more accused were brought and lastly one more accused person was brought. According to her, faces of the accused were uncovered at that time and they remained there for about 10 - 15 minutes. She was not in a position to tell how many accused were having knives or Kattas at the time of incident. I do not find anything else worth discussion in the cross examination of these two material witnesses.
14. Relying upon the aforesaid cross examination of PW1 and PW2, Ld. Counsel for the accused submitted that the accused were justified in refusing to participate in TIP proceedings as they were already shown by the police officials to these two witnesses. I do not find any merit in the said submissions of the Ld. Counsel. Accused Rajan Saha was arrested in this case on 31.8.08 and he was produced for TIP on 02.9.08, on which date he refused to participate in the same. Similarly, the other four accused were produced for TIP on 04.10.08 and all of them refused to participate in the same. It is in these circumstances that the police took all the five accused to the spot of incident i.e. the house of PW1 and PW2 on 06.10.08, when they were seen by these two witnesses. PW2 has clearly mentioned that the accused Rajan was brought near her house on 02.9.08 and the remaining four accused were brought on later date.
SC No.137/11. Page 9 of 2615. Moreover, the reason given by the accused for refusing in taking part in TIP proceedings is that their photographs were shown to the witnesses in advance. It is not their case that they were shown to the witnesses before being produced for TIP proceedings. It is, therefore, evident that the accused were taken to the house of PW1 and PW2 for identification after they had refused to take part in TIP proceedings.
16. Ld. Counsel for the accused also submitted that there being discrepancies in the testimonies of PW1 and PW2, the accused cannot be convicted on the basis of the testimonies of these two witnesses. He submitted that PW1 and PW2 have given different versions of the incident as PW1 has stated that on her request, she was taken to the room of PW2, whereas PW2 stated that she was taken to the room of PW1. He submitted that this is a major contradiction in the deposition of these two material witnesses and therefore, demolishes the whole story of dacoity put forward by the prosecution. I do not agree that the Ld. Counsel for the accused. The aforesaid discrepancy pointed out by the Ld. Counsel for the accused cannot be held to be a major discrepancy amounting to contradiction under the circumstances of this case. It is evident from the testimonies of PW1, PW2 and PW3 that all of them were kept in a single room by the accused while the dacoity was being committed by them and after the completion of the dacoity, they were locked in a bathroom of the house. So whether they were kept in the room of PW1 and or in the room of PW2 is hardly immaterial. This discrepancy does not affect the case of the prosecution regarding commission of dacoity in the house of SC No.137/11. Page 10 of 26 the complainant by the accused. It would be useful to recollect the observations of the Supreme Court in State of Himachal Pradesh vs. Lekh Raj, AIR 1999 SC 3916 :
"........Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incidence there may occur minor discrepancies, such discrepancies in law may render credential to be depositions. Parrot like statements are disfavoured by the Courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ous.. Varghese vs. State of Kerala, (1974) 3 SCC 767 (AIR 1974 SC 739; 1974 Cri LJ 624) held the minor variations in the accounts of the witnesses are often the hall mark of the truth of their testimony. In Jagdish vs. State of Madhya Pradesh, 1981 SCC (Cri) 676: (AIR 1981 SC 1167: 1981 Cri. LJ
630) this Court held that when the discrepancies were comparatively of a minor character and did not go to root of the prosecution story they need not be given undue importance. Mere.. congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan vs. Kalki, (1981) 2 SCC 752: (AlR 1981 SC 1390: 1981 Cri LJ 1012) held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.
Material discrepancies are those which are not normal, and not expected of a normal person."
SC No.137/11. Page 11 of 2617. Earlier also, the Supreme Court had held in Leela Ram vs. State of Haryana, 1999 (8) JT (SC) 274 :
".........There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye-witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence ..............
The Court shall have to bear in mind that different witnesses react differently under different situations: Whereas some become speechless, some start wailing while some other run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact, it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise."
18. In the light of the distinctions explained by the Supreme Court between the discrepancies and contradictions, I find the arguments of Ld. Counsel for the accused without any substance as the discrepancies pointed out by him are not fatal to the case of the prosecution. All the three witnesses i.e. PW1, PW2 and PW3 appear to be natural and truthful witnesses. The accused were before their eyes for considerably long period of time and SC No.137/11. Page 12 of 26 with uncovered faces. There would have been no difficulty for these witnesses to remember the faces of the accused. Hence the identification of the accused by these witnesses cannot be doubted.
19. PW3 is another material witness for the prosecution. He is Noor Alam, the servant in the house. He also identified all the five accused during the testimony before the court. He deposed that on 12.5.08 about 11 a.m. when he was cleaning the floor of the house, the six persons including the five accused entered the house, took him on the point of Katta, tied his hands and removed all belongings of his employer. After removing all the things of the house, the accused confined him, Raj Bala and Seema in a bathroom. They managed to come out of the bathroom somehow by breaking open the window and raised alarm. Raj Bala and Seema made phone calls. The husband and brother-in-law of Seema came to the house and after about 10 - 15 minutes, police also reached there. He has stood his ground in the cross examination as well and did not depose anything contrary to the prosecution case. His testimony also corroborates the version of PW1 and PW2 and thus strengthens the prosecution case against the accused.
20. The question raised by Ld. Counsel for the accused, as to who in fact, had reported the incident to the police by making call at telephone no.100, is answered in the testimony of PW4, who is husband of complainant PW1. He deposed that on 12.5.08 he had left for their office at Kirti Nagar at 10.30 a.m. and received a telephonic call from his wife at 12.30 p.m. that 5 - 6 persons SC No.137/11. Page 13 of 26 have committed dacoity in the house. He immediately made a call at telephone no.100 and rushed to his house. On reaching the house, he found the things lying scattered. The jewellery of his wife and sister-in-law and cash approximately amounting to Rs.40 Lacs had been robbed. He had handed over the cash memo in respect of the robbed mobile phone to the police, which was seized vide memo Ex.PW4/A. He also handed over the list of articles robbed from the house to the police and proved its copy as Ex.PW1/B. He stated that all the jewellery were gifted to them in the marriage. In the cross examination, he deposed that he had received a call from landline phone no.255381223 installed in his house on his mobile phone no.9811198731 and he immediately made a call at telephone no.100. He further stated that the sum of Rs.40 Lacs, which was taken away by the accused did not belong to him alone, same belongs to his father and two brothers also as all do business together in different companies and the income of everybody is accounted for.
21. The DD No.22 (Ex.PW6/A) which was recorded in P.S. Dabri pursuant to receipt of information about the incident from PCR mentions that the information about the incident was given to the PCR from mobile phone no.981498731. This mobile phone number is invalid number as it consists of only nine numericals whereas a mobile phone number consists of ten numericals. It is apparent that the information about the incident was received in the PCR from PW4 from his mobile phone no.9811198731 and the officials at PCR, who received the phone call heard and noted '4' instead of '11' appearing between 981 and 98731 in the mobile phone number of PW4. Therefore, I do not see any delay or any SC No.137/11. Page 14 of 26 kind of misgiving in reporting the incident to the PCR.
22. As noted herein-above, accused Rajan Saha was the first to be arrested in this case amongst all the accused. The circumstances in which he has been arrested, have been detailed by PW17. As per his deposition, he was posted in SOS Crime Branch and on 30.8.08 he was in Jharkhand as a mobile phone number, which was working in the area of Jharkhand was kept on surveillance. He alongwith HC Bachhu Singh apprehended accused Rajan Saha from Ranchi, Jharkhand and arrested him vide arrest memo Ex.PW17/A u/s.41.1. Cr.PC. He was brought to Delhi and produced before the concerned court. In the cross examination, he stated that accused Rajan Saha was arrested from the house of one Virender Singh, Advocate. He had requested Sh. Virender Singh to be the witness of the arrest of accused, but Mr. Singh refused to do so. It is important to mention here that accused Rajan Saha in his statement u/s.313 Cr.PC does not deny his arrest on 30.8.08 vide memo Ex.PW17/A. He simply stated that he does not remember the date of his arrest . Therefore, it can be said that the accused admits his arrest from the house of Sh. Virender Singh, Advocate at Ranchi. The accused has further admitted in his examination u/s.313 Cr.PC that on being brought to Delhi, he was arrested in this case on 31.8.08 vide arrest memo Ex.PW12/A. However, he has denied having made any disclosure statement. PW17 had, however, failed to mention the mobile phone number, which was kept under surveillance in Jharkhand.
23. The manner in which accused Rajan Saha has been SC No.137/11. Page 15 of 26 apprehended from his native place Ranchi as aforestated, makes it evident that he was apprehended only pursuant to the surveillance of the mobile phone which had been robbed from the house of the complainant and which he was using in his native place. I fail to comprehend any other reason for his arrest. He was not a bad character of any area of Delhi or even in his native State Jharkhand. It is unbelievable that the Crime Branch personnels would go all the way from Delhi to Jharkhand to frame an innocent man in a case of dacoity. Had that been a motive of the Crime Branch officials, they could have easily apprehended any bad characters of Delhi and framed him in this case.
24. PW19 had accompanied accused Rajan Saha to his house in Ranchi on 06.9.08, after his arrest, in this case. He deposed in his examination in chief that accused led them to the house no.77, Kunwar Singh Colony, Ranchi, the house of Virender, which was found locked. Virender's daughter met them and informed them that after coming to know about the arrest of the accused, his wife Manju had vacated the premises and shifted to CTO, Ranchi. Thereafter, they reached CTO, Ranchi and the accused pointed out to a motorcycle bearing registration no.GH-01-W1569 stationed on the side of the road saying that he had purchased the same with looted amount, in the name of his brother-in-law Manoj. One TSR Minidoor bearing registration no.JH-01-W-4356 was also found stationed there and the accused Rajan Saha pointed out to the same saying that he had purchased it also in the name of his brother-in-law Manoj from the looted money. Both these vehicles were seized vide seizure memo Ex.PW19/A and their registration certificates were seized vide SC No.137/11. Page 16 of 26 memo Ex.PW19/B and were brought to Delhi.
25. The record of registration of these two vehicles proved by PW20, Assistant in the office of District Transport office, Ranchi, Jharkhand as Ex.PW20/A and Ex.PW20/C reveals that the motorcycle had been registered in the name of Manoj Kumar Sah, son of Sh. Shiv Raj Sah, R/o New Market City on Road Dhurwa, District Ranchi on 17.6.08 and the Tata Minidoor was registered in the name of Sh. Manoj Kumar Soni, son of Sh. Shiv Nath Soni, R/o New Market, CTO Road, Dhurwa, Ranchi, on 10.7.08.
26. Ld. Counsel for the accused submitted that the price for the aforesaid two vehicles was not paid by accused Rajan Saha but was arranged by Sh. Manoj Kumar on his own. In this regard, he relied upon and referred to the testimony of Sh. Manoj Kumar, who was examined as DW1. He stated that accused Rajan Saha is his brother-in-law and he got married to sister of the accused on 27.4.08. He further stated that his father-in-law had given him a sum of Rs.1.5 Lacs as gift at the time of marriage. From the aforesaid amount, he purchased the motorcycle for a sum of Rs. 66,000/- and borrowed Rs.50,000/- each from his two brother namely Sanjay Kumar and Deepak Kumar and thereafter brought the Tata Minidoor vehicle in the sum of Rs.2 Lacs. He further deposed that he could not repay the loan amount to his brother and accordingly they served him a notice dated 24.4.09 through an advocate demanding repayment of loan and proved the said notice as Ex.DW1/B. On the face of it, the deposition of this witness appears to be false and unreliable. He states that he brought a Minidoor vehicle to earn his livelihood but nowhere SC No.137/11. Page 17 of 26 states that what he was doing at the time of marriage. It is not his case that he married while being without any income. His father- in-law has not been examined to prove the factum of gift in the sum of Rs.1.5 Lacs. His two brothers have not been examined to prove the granting of loan. The notice Ex.DW1/B seems to have been procured by this witness from his brothers only to create an evidence in this case to save accused Rajan Saha as there is no evidence whether the witness repaid the loan amount to his brother after receipt of the notice or on his failure to do so, whether two brothers have initiated any further legal action against him. Further, the owner named in the registration documents of these two vehicles i.e. Ex.PW20/A and Ex.PW20/C has been mentioned differently. Ex.PW20/A which pertains to motorcycle shows the owner's name as Manoj Kumar Sah, son of Sh. Shiv Raj Sah, whereas Ex.PW20/C which pertains to Tata Minidoor vehicle shows the owner's name as Manoj Kumar Soni, son of Sh. Shiv Nath Soni. DW1 Manoj Kumar has nowhere explained this inconsistency, which only goes on to show that these two vehicles have not been purchased by him himself.
27. In my opinion, there is sufficient evidence to hold that accused Rajan Saha was member of the gang of dacoits, who committed dacoity in the house of the complainant on 12.5.08 and he had purchased the aforesaid two vehicles from his share of the looted money.
28. As per the prosecution case, accused Rajan Saha in his disclosure statement has disclosed the name of his associate as Vakil, Shail, Aziz and Jahangir Khan. PW17 has further deposed SC No.137/11. Page 18 of 26 that he arrested accused Vakil, Shakil and Aziz on 30.9.08 vide arrest memos Ex.PW17/C, Ex.PW17/D and Ex.PW17/E respectively. In the cross examination, he stated that these three accused were arrested after receipt of a secret information at a place which was at a distance of about 25 - 27 kms. from the Crime Branch office. Thereafter, these accused were handed over to PW21, the IO of this case on 01.12.09 and he accordingly arrested them in this case vide memos Ex.PW10/A1, Ex.PW10/A2 and Ex.PW10/A3. PW21 has further deposed that all the three accused persons were produced before the Link M.M. on the next date in muffled face for test identification parade, but all of them refused to participate in the parade. Thereafter, all the three accused led him to the place of occurrence, where he prepared pointing out memos and the complainant also identified all the three accused. According to his further deposition, accused Mohd. Aziz recovered a polythene bag from behind the MTNL office, Dabri, after digging the earth and the same contained one button actuated knife, two rings of golden colour. He prepared sketch of the knife Ex.PW10/C1 and took the same into possession. The complainant and her husband were present at the time of recovery. The complainant identified the two golden colour rings belonging to her Devrani i.e. PW2. Both these rings also were seized by PW21. As per the further testimony of PW21 Mohd. Vakil also dug up the earth and took out one polythene, which was containing one countrymade pistol alongwith two live cartridges. The countrymade pistol was also loaded with one live cartridge. He prepared the sketch of countrymade pistol Ex.PW10/D1 and seized the same.
29. PW21 further deposed that accused Mohd. Shakil also SC No.137/11. Page 19 of 26 dug up the earth and took out a polythene bag from the same spot, which was checked and found containing one countrymade pistol alongwith two live cartridges. The countrymade pistol was found to have been loaded with one live cartridge. He prepared the sketch of the country made pistol and three live cartridges Ex.PW10/E2. Thereafter all the three accused namely Aziz, Vakil and Shakil led the police party alongwith complainant to jhuggies at Jhakhira. There accused Shakil pointed out towards one jhuggi and took out a polythene bag from inside the same, which was found containing four gold Kangan (bangles) which the complainant identified to be belonging to her and which was looted on the date of dacoity. He seized the bangles vide seizure memo Ex.PW1/D. Accused Vakil led them to his house i.e. E-218, Katputli Colony, wherefrom he took out a polythene bag which was found containing one ring and two pairs of tops, which also were identified by complainant belongiong to her and which was looted during the dacoity. These were also seized by PW21 vide memo Ex.PW1/E. Thereafter, all of them returned to the police station. The accused were put up in Lock-Up. Accused Shakil was interrogated again and he disclosed that he can get a sum of Rs. 70,000/- recovered from his native village from District Sultanpur. All the three accused were produced before the concerned Magistrate the next day. Accused Vakil and Aziz were sent to JC whereas accused Shakil was taken on three days police remand. Accused Shakil led the police party to District Sultanpur, U.P. The police party led by PW21 first contacted the local police i.e. P.S. Kodwar, Village Dharai. One Constable was sent with them. The accused led them to their house where his wife was present. Accused Shakil took out a polythene bag at the instance of his wife SC No.137/11. Page 20 of 26 and on checking, it was found containing Rs.41,300/- consisting of 41 notes of Rs.1,000/- denomination and three notes of 100 denomination. The currency notes were seized by PW21 vide seizure memo Ex.PW13/A.
30. Replying to the questions put to him in the cross examination regarding aforesaid recovery of weapon, jewellery and cash at the instance of the accused, PW21 stated that on that day, they had left the police station at about 11 a.m. or 12 noon and returned at 8 p.m. First of all, they had gone near MTNL Office, Dabri. Complainant was with them from the police station. The knife and two gold rings were found embedded below one and a half feet of earth behind MTNL office and there was no mark on the earth at the place showing that something has been embedded there. From MTNL office, they went to the two storeyed jhuggies near Shadipur Flyover, which was identified by accused Shakil. The complainant was accompanying them and also went inside the first floor of the jhuggi. No family member of accused Shakil was present in the jhuggi. The gate of the jhuggi was closed, it was not locked. Accused Shakil recovered the articles kept in a polythene bag from one of the small iron boxes lying in the juggi. Nobody was found on the ground floor of the jhuggi also. Nobody amongst the residents of adjoining jhuggies came forward to be a witness to the recovery. He further stated that the brothers of accused Vakil were present in Katputli Colony at the time of recovery of stolen articles at his instance, but they were not made witnesses to the recovery. He further stated that the wife of accused Shakil, though present in his house at District Sultanpur, stated that the accused was not her husband.
SC No.137/11. Page 21 of 26However, she produced the recovered articles from under the thatch of the house in the presence of the accused.
31. Ld. Counsel for the accused vehemently submitted that the recovery of weapons, jewellery and cash at the instance of the accused Aziz, Vakil and Shakil cannot be believed as the same was effected in the absence of any public witness, though the public witnesses could have easily called for. He submitted that all these articles have been planted upon the accused in order to seek their conviction in this case. He also contended that the recovery of these articles at the instance of the accused is also doubtful as the same is alleged to have been recovered from the places which are open and accessible to all. I am unable to countenance the submission of Ld. Counsel for the accused for various reasons. Firstly, the jewellery and arms were got recovered by accused Aziz and Vakil from behind MTNL Office, Dabri, in the presence of the complainant (PW1). Her signatures appear on the seizure memo of these articles. So, it is not a complete truth that the recovery was not effected in the presence of the public witness. It can be said that the complainant was an interest person and her witnessing the recovery has no value. In my opinion, the complainant was interested in recovery of her jewellery items and arrest of the assailants, who had committed the dacoity in her house. She cannot be said to be interested in arrest and prosecution of an innocent person. Further, it has come in the cross examination of PW21 that the jewellery and arms were found embedded below one and a half feet of earth near MTNL Office, Dabri, and there was no mark on the earth at that place showing that something has been embedded there. It is therefore SC No.137/11. Page 22 of 26 apparent that it is only the accused, who knew that the arms and jewellery are embedded below earth at that place. This fact was within their special knowledge and the said fact has been discovered pursuant to their disclosure statement. As observed by the Privy council in Phlukuri Kottayia Vs. Emperror, AIR 1947 PC 67:
"It is now well settled that discovery of facts referred to in section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it."
32. I also find it fallacious to view every recovery of incriminating articles at the instance of the accused from open or accessible place, with a suspicious eye. The concealment of the weapon of offence and the looted articles depends upon the nature of the mental state of the offender at that time, the time available to him for concealment of the articles and other like factors. It may be that the offender does not get ample time to conceal the incriminating articles at a place not accessible to general public or that he had got so frightened after the commission of offence that in a state of frustration, he simply throws away the incriminating articles in an open field or a vacant plot of land, which is accessible to one and all. It will be a total miscarriage of justice not to believe the recovery of such articles at the instance of the offender later on at his arrest as he only knew where he has thrown or concealed those articles. The Supreme Court also aptly observed in State of H.P. Vs. Jeet Singh, AIR 1999 SC 1293 as under :
"There is nothing in section 27 of the Evidence SC No.137/11. Page 23 of 26 Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on the public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."
33. In case of arms like knife and country made revolver, it may be said in a given case that these are planted but not in case of recovery of such huge jewellery and cash as in this case. It is very difficult to buy the argument that such precious jewellery could be arranged and planted upon the accused just to implicate them falsely in this case.
34. In my opinion, the prosecution has amply proved the recovery of weapons and jewellery at the instance of accused Aziz, Shakil and Vakil as aforestated. There is nothing on record to disbelieve these recoveries. Similarly and for the same reason, the prosecution has also proved the recovery of Rs.41,300/- at the instance of accused Shakil from his native house in District Sultanpur, which he has obtained as his share of looted money.
SC No.137/11. Page 24 of 2635. As noted herein-above, accused Rajan Saha had purchased a motorcycle and Tata Minidoor vehicle from his share in the booty. Hence by virtue of the recovery of above mentioned articles, weapon and jewellery at the instance of the accused, the particular portion of their disclosure statements, which directly relates to the discovery and recovery of these articles, weapon and jewellery, becomes admissible in evidence.
36. The position which emerges now is that accused Rajan Saha, Md. Aziz, Md. Shakil and Md. Vakil refused to take part in TIP without any cogent ground. Thereafter, they were identified by the complainant (PW1) and PW2 at their house when the accused were taken there by the police officials and they were identified in court also by PW1, PW2 and PW3 correctly during their testimony. Prosecution has also proved that these accused have got recovered the looted jewellery and cash, after their arrest.
37. Even though accused Mohd. Vakil has got recovered one countrymade pistol alongwith two live cartridges and accused Mohd. Shakil also got recovered one countrymade pistol alongwith live cartridge, pursuant to their disclosure statement. The prosecution has not led any evidence to show that these weapons were used by the accused during commission of dacoity. These weapons were not shown to any of the eye witness of the dacoity i.e. PW1, PW2 and PW3 during their testimonies. No attempt has been made to lift fingerprints from these weapons and to match the same with that of the accused. These witnesses have also SC No.137/11. Page 25 of 26 failed to explain which of the accused was armed with countrymade pistol, which of the accused was armed with knife and which of the accused was armed with other arms. The statements of these three witnesses i.e. PW1, PW2 and PW3 so far as the weapons used by the offenders are concerned, are very confusing and cannot be relied upon.
38. In view of the same, the accused are liable to be acquitted of the charges u/s.397 IPC giving them benefit of doubt.
39. So far as the accused Jahangir Khan is concerned, nothing was got recovered by him after his arrest. However, he has also refused to participate in TIP without any reasonable ground. He was later identified by the three eye witnesses at their house and also during their testimonies before this court. I find sufficient evidence on record to show that accused Mohd. Jahangir Khan was also alongwith the other co-accused at the time of commission of dacoity in the house of the complainant.
40. With the result, all the five accused are hereby convicted of having committed the offence punishable u/s.395 read with section 34 IPC. Moreover, accused Rajan Saha, Aziz, Shakil and Vakil are convicted of having committed the offence punishable u/s.412 read with section 34 IPC. However, all the five accused have been acquitted of the charge of having committed the offence punishable u/s.397 IPC.
Announced in open (VIRENDER BHAT)
Court on 31.3.2012. A.S.J. :Dwarka Courts
New Delhi.
SC No.137/11. Page 26 of 26