Delhi District Court
State vs . 1) Mohd. Nazir @ Nanha on 28 July, 2016
IN THE COURT OF SH. REETESH SINGH, ASJ-02/FTC
NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
Case ID No. 02403R0005352011
Sessions Case No. 110 of 2013
State vs. 1) Mohd. Nazir @ Nanha
Son of Mohd. Sabir
Resident of C-213/9/5, Near Sandhya Public
School, Chauhan Bangar,
Seelampur, Delhi.
2) Shanu @ Kasim
Son of Sabir
Resident of C-213/9/5, Near Sandhya Public
School, Chauhan Bangar,
Seelampur, Delhi.
3) Anwar Hussain @ Raju @ Bechain
Son of Dilawar Hussain
Resident of Q-25, Gali No.18,
Brahmpuri, Delhi.
4) Sattar Ahmed
Son of Haji Anwar Ahmed
Resident of U-247, Gali No.14,
Subhash Mohalla
Mojpur Delhi (Rented).
5) Laxman Singh @ Sonu
Son of Late Ombir Singh
Resident of A-303, Gokulpuri,
Delhi (Rented).
6) Javed @ Chikna
Son of Sabir
Resident of House No.476, Gali No.7,
New Mustafad, Delhi.
7) Mumtaz
Son of Zamil
Resident of House no.157, Ground Floor,
Sector-4, Vaishali Ghaziabad,
Uttar Pradesh.
State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 1/50
FIR No. 24 of 2011
PS: Special Cell
U/s: 395/397/411/120B/34 IPC
Date of institution of the case : 14.10.2011
Date when the case reserved for judgment : 28.07.2016
Date of announcement of judgment : 28.07.2016
JUDGMENT
1. Mohd. Nazir @ Nanha, Shanu @ Kasim, Anwar Hussain @ Raju @ Bechain, Sattar Ahmed, Laxman Singh @ Sonu, Javed @ Chikna and Mumtaz are facing trial in this Court for the following offences:-
(i) All the seven accused are jointly charged for the offence punishable under Section 120B IPC.
(ii) All the accused are jointly charged for the offences punishable under Sections 397 and 395 of the IPC both read with 120B IPC.
(iii) Accused Mohd. Nazir is charged alternatively for the offence punishable under Section 412 of the IPC.
(iv) Accused Shanu @ Kasim is charged alternatively for the offence punishable under Section 412 of the IPC.
(v) Accused Anwar Hussain is charged alternatively for the offence punishable under Section 412 of the IPC.
2. The case set up by the prosecution is that the accused Mohd. Nazir, Shanu @ Kasim and Mumtaz are siblings. It is alleged that Mohd. Nazir, Shanu @ Kasim, Anwar Hussain, Sattar Ahmed, Laxman Singh @ Sonu and Javed @ Chikna had followed a TATA-709 bearing registration no. DL-1LG-1090 being driven by Vipin Singh, driver and employee of Lokesh Bhutani. The accused persons were following the said vehicle in a TSR DL-1RJ-1412 owned by Jamil, husband of State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 2/50 Mumtaz and a motorcycle DL-5SAF-0938 owned by Zia-ur-Rehman, brother-in-law of Javed @ Chikna. The accused persons overtook the said truck near metro pillar no.22, Ridge Road ahead of the traffic signal on Simon Boliver Road. The accused persons blocked the path of the truck, forced it to stop, entered the vehicle and forced the driver Vipin Singh out of the vehicle threatening him with a katta / country made weapon and knife. They then forced Vipin Singh into the said TSR. Mohd. Nazir, Shanu @ Kasim, Anwar Hussain and Sattar Ahmed took Vipin Singh with them in the said TSR and let him off in Okhla jungle after snatching his mobile phone, driving license and cash of Rs.2000/-. Laxman Singh drove the truck from the spot and Javed @ Chikna went on his motorcycle. The said truck was taken to a godown taken on rent by Mumtaz at Prahalad Garhi, Indirapuram, Uttar Pradesh and the looted articles were kept there and the truck was abandoned at Rajender Nagar, Gaziabad, Uttar Pradesh.
3. The manner in which the offences were discovered are explained in the Police Report under Section 173 (2) of the Code of Criminal Procedure (Cr.P.C.) as per which a PCR call was made from mobile number 9313351919 on 05.03.2011 about a truck TATA-709 bearing registration no. DL-1LG-1090 carrying goods having been looted by 2-3 persons on the road going from Buddha Garden to Dhaula Kuan. This call was recorded vide DD No.30A at 2:30am at PS Chanakya Puri New Delhi which was handed over for inquiry to ASI Chajju Lal who proceeded towards Ridge Road with Ct Rakesh. The caller was not found. ASI Chajju Lal then contacted the caller who told him that he was the owner of the vehicle and his driver had not yet met him due to which the said PCR call was kept pending.
State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 3/50
4. It is further stated in the police report that the owner of the said vehicle Lokesh Bhutani came to the police station along with his driver Vipin Singh. ASI Chajju Lal recorded the statement of Vipin Singh as per which he stated that he was working as a driver with Lokesh Bhutani and in the night of 04.03.2011 at about 9:30pm, he had left for Manesar Gurgaon after loading goods in the above mentioned vehicle from his office. When he reached just ahead of the traffic signal of Simon Boliver Road on the Ridge Road, two autos overtook his vehicle from both the sides and forced him to stop. Two boys then broke the glass of the window of the front passenger seat door and entered the vehicle. Another boy got inside the vehicle from the side of the driver. One of the boys who had entered the vehicle from the door of the front passenger seat threatened him with a knife. All the three boys then dragged him out of the vehicle. Two of them forced him to sit in an auto and the boy who entered from the side of driver drove away the said vehicle.
5. Vipin Singh in his statement further stated that in the auto one of the two boys pointed a katta / country made revolver on his head and the other one put a knife on his back and took out his walled which contained his driving license and cash of Rs.2000/-. He also took his mobile phone handset make LG with Reliance mobile no. 9310504637 and threatened to kill him if he raised any alarm. These two boys drove him from the spot and then dropped him in Okhla Jungle. Vipin Singh further stated that he then informed his friend Ramu about the incident who then informed his owner. Vipin Singh stated that he could identify the boys who had looted him.
6. ASI Chajju Lal after recording the statement of Vipin Singh State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 4/50 prepared the rukka on the basis of the said statement, on the basis of which the FIR of this case was registered. ASI Chajju Lal prepared a site plan of the place of the incident at the instance of Vipin Singh and also recorded statements of the witnesses.
7. The police report further states that ASI Devender Prasad of PS Special Cell, New Delhi received secret information at 12:45pm on 06.03.2011 in the office of the Special Cell Lodhi Colony to the effect that one Nazir @ Nanha resident of Chauhan Bangar Delhi along with his associates Javed @ Chikna, Sattar, Raju @ Bechain, Sonu and Shanu @ Kasim had been indulging in looting of trucks loaded with goods in deserted places in Delhi. It was further informed that the said persons used to take the driver of the truck hostage and that these persons who had already been booked in similar cases had looted a tempo loaded with tea bags near ISBT Kashmiri Gate 6-7 days ago and a truck loaded with goods on Ridge Road Buddha Garden 2-3 days ago. The informer further stated that they had kept the looted goods in a rented godown in the area of Indirapuram Gaziabad, Uttar Pradesh. Two of these persons i.e. Nazir @ Nanha and Shanu @ Kasim (who were brothers) were to come to meet their associates Sonu, Sattar, Javed @ Chikna and Raju @ Bechain near ISBT Anand Vihar between 2-2:15pm to dispose off the looted goods.
8. The police report states that the said secret information had been conveyed to ASI Devender Prasad by Insp. Subhash Vats who directed him to constitute a police team to act on the information. A police team under the supervision of Insp. Subhash Vats was constituted comprising ASI Devender Prasad, ASI Ajayveer Singh, ASI Amrik Singh, HC Raj Kumar, HC Umesh, HC Vijender, HC Surender, HC State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 5/50 Ram Gopal, HC Sanjeev, HC Ashok and Ct Sandeep. The police team after recording departure DD Entry No.4 dated 06.03.2011 left with the secret informer from the office of the Special Cell in private motorcycles and vehicles and reached Anand Vihar ISBT. At about 2pm, Nazir @ Nanha, Shanu @ Kasim and Raju @ Bechain @ Anwar Hussain were apprehended on the pointing out of the secret informer. Upon interrogation they disclosed that they had carried out loot of truck and tempo in the area of ISBT Kashmiri Gate and Ring Road Buddha Garden. All the three were arrested under Section 41.1 of the Cr.P.C. and their disclosure statements were recorded.
9. The police report further states that after the disclosure statements of Nazir @ Nanha, Shanu @ Kasim and Raju @ Bechain @ Anwar Hussain had been recorded, they led the police team of the Special Cell to a rented godown owned by one Som Dutt Sharma at Prahlad Garhi, Indirapuram, Uttar Pradesh. The goods were then seized under Section 102 of the Cr.P.C. and then deposited in the Malkhana of PS Special Cell. Inquiry revealed that FIR No.31 of 2011 under Section 379 IPC PS Kashmiri Gate and FIR No. 24 of 2011 under Sections 392 / 34 IPC stood registered regarding these incidents of loot. Information of the apprehension of the accused persons and recoveries of the stolen goods were given to the investigating officers of both the said FIRs. Till then the accused persons were kept in muffled face.
10. Police report further states that the investigation of the FIR No. 24 of 2011, PS Chanakya Puri was transferred to the Special Cell on 07.03.2011 and assigned for investigation to ASI Devender Prasad. The three accused persons namely Nazir @ Nanha, Shanu @ Kasim and Raju @ Bechain @ Anwar Hussain were produced before the Court State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 6/50 of Ld. CMM, New Delhi and an application was moved for conducting Test Identification Parade (TIP) of these accused persons.
11. Police report further states that on 07.03.2011, Lokesh Bhutani, owner of the looted vehicle informed the IO that it was standing in the area of Rajender Nagar Ghaziabad, Uttar Pradesh. The truck was found by the IO to be standing abandoned opposite Rajender Nagar on the road coming towards Delhi. Crime Team was called and finger prints were lifted from the truck which was photographed. On 10.03.2011, TIP of the accused persons namely Nazir @ Nanha, Shanu @ Kasim and Raju @ Bechain @ Anwar Hussain was conducted. While accused Nazir @ Nanha, and Shanu @ Kasim refused to join the TIP, accused Raju @ Bechain @ Anwar Hussain participated in the same. Anwar Hussain identified positively by the complainant Vipin Singh. Statement of Som Dutt Sharma, owner of the godown at Indirapuram was recorded who disclosed that he had given godown on rent to one Mumtaz on 02.03.2011 and in the night of same day, she had come to the godown with some persons and kept some goods. He further stated that in the night of 4/5.03.2011, Mumtaz had come with some persons and kept some cartons there. The police custody of Nazir @ Nanha, Shanu @ Kasim and Raju @ Bechain @ Anwar Hussain were granted and on 14.03.2011, all the three accused persons thoroughly interrogated and they gave supplementary disclosure statements. They disclosed that Mumtaz is the sister of Nazir @ Nanha and Shanu @ Kasim who was aware about the loot and had taken the said godown on rent to store the looted goods. They had further disclosed that it was Anwar Hussain who had used the katta while Nazir @ Nanha had used knife at the time of the incident. They had subsequently handed over the katta to Sattar Ahmed and knife to Sonu. Auto was driven by Sattar Ahmed and truck State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 7/50 had been driven by Sonu from the spot to the godown and then it was abandoned in the area of Vaishali. All the three accused person pointed out the place of the incident during the course of the investigation. Nazir @ Nanha and Shanu @ Kasim who had refused to participate in the TIP were subsequently identified by Vipin Singh in the office of the Special Cell.
12. Police report further records that on 01.04.2011, accused Sattar Ahmed who was wanted in this case had been arrested by HC Randhawa, PS Saket under Section 41.1 of the Cr.P.C. Information of which was given to the IO. HC Randhawa produced Sattar Ahmed before the Court of Ld. CMM on 02.04.2011 in muffled face after which he was arrested and his disclosure statement was recorded. Sattar Ahmed disclosed that he had used an auto / TSR DL-1RJ-1412 belonging to Mumtaz in the incident which had been arranged by her brother Nazir @ Nanha. This auto was plyed in the area of Seelampur by Jamil who is the husband of Mumtaz in the area of Seelampur. Sattar Ahmed further disclosed that at the time of the incident Nazir @ Nanha and Raju @ Bechain were using a motorcycle and after the incident Nazir @ Nanha, Shanu and Raju @ Bechain were in the TSR with the driver of the vehicle Vipin Singh. While he himself i.e. Sattar Ahmed was driving the TSR, the motorcycle was being driven by Javed. Sattar Ahmed refused to participate in the TIP.
13. Police custody of Sattar Ahmed had been granted and at his instance, accused Laxman Singh @ Sonu was arrested on 03.04.2011 near government toilet, A-Block, Gokul Puri, Delhi at 11:45am. Laxman Singh @ Sonu also gave a disclosure statement which was in the line of disclosure statement given by the accused State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 8/50 persons. Laxman Singh @ Sonu pointed out the place of the incident as well as the godown where the looted goods were kept and where the truck had been abandoned. In the evening of 03.04.2011 at the instance of Sattar Ahmed, TSR bearing no. DL-1RJ-1412 was recovered from Seelampur in the possession of Jamil who is husband of Mumtaz. Vipin Singh identified the said TSR as having been used in the incident. The TSR was seized and during the investigation, it was found to be in the name of one Sukhbir Singh and the auto permit was also in the name of Sukhbir Singh.
14. Police report further states that on 09.04.2011, accused Javed @ Chikna was apprehended on the basis of a secret information from near MCD Office on Karkari Road, Delhi at 12:15pm. He was in possession of a motorcycle bearing no. DL-5SAF-0938, Bajaj Pulsar, colour black which was used in the incident and had been seized. This motorcycle was found registered in the name of Zia-ur-Rehman, brother-in-law (jija) of Javed @ Chikna. Disclosure statement of Javed @ Chikna was recorded in which he admitted to be involved in the incident. Javed @ Chikna also pointed out the place of the incident and the place where the looted goods had been kept in Indirapuram. He was kept in muffled face and produced in the Court.
15. Police report further states that on 12.04.2011, Mumtaz was interrogated in which she disclosed that she had taken a godown on rent and that Nazir and Shanu were her brothers. She claimed ownership of auto DL-1RJ-1412. Applications for conducting TIP of Javed @ Chikna and Laxman @ Sonu were filed. Both of them refused to join the same. Subsequently, Vipin Singh identified both these two accused in the office of the Special Cell after seeing their photographs.
State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 9/50 Zia-ur-Rehman, registered owner of motorcycle no. DL-1RJ-1412 was served with notice under Section 133 of Motor Vehicles Act to which he stated that the motorcycle was being used by Javed @ Chikna but stated that he was not aware so to who was using it on 04.03.2011. Statements of the registered owner of the TSR and the person who sold the same to Mumtaz had been recorded. The chance fingerprints lifted from the looted truck were compared with the specimen prints of the accused persons and as per report of the FSL, the same matched with that of Laxman @ Sonu.
16. After recording of statements of the witnesses and collection of the evidence, the police report was filed against all the accused persons except Mumtaz. Mumtaz after interrogation had been absconding and NBWs had to be issued. She was subsequently arrested in FIR No. 209 of 2011 under Section 395 / 397 / 412 / 365 IPC PS Burari Delhi. Upon issuance of production warrants, Mumtaz was arrested on 02.07.2011. A supplementary charge-sheet was thereafter filed qua Mumtaz. Both the police reports were then assigned for trial before this Court. By order dated 22.10.2011, charge as above was framed against all the accused persons to which they pleaded not guilty and claimed trial. In all the prosecution has examined 67 witnesses to bring home its charges against the accused persons. The brief description of witnesses examined in the course of the trial are tabulated as under:-
SRL. NO. NAME RELEVANCE
PW1 Vipin Singh He is the complainant.
PW2 Zia-ur-Rehman He is the owner of motorcycle bearing
no. DL-5SAF-0938 make Bajaj Pulsar.
PW3 Lokesh Kumar He is the proprietor of M/s Jaipur Golden
Bhutani Transport and owner of the looted truck
State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 10/50
i.e. TATA-709 bearing registration no. DL- 1LG-1090. He is also a witness to the recovery of the said vehicle on 07.03.2011.
PW4 Som Dutt He is the owner of godown at house no.
374, Prahlad Gari, PS Indirapuram, Ghaziabad, Uttar Pradesh from where the looted articles were recovered.
PW5 Ram Bharat He was the person who arranged for sale Sharma of TSR / Auto DL-1RJ-1412 in the year 2006 to Sukhbir Singh.
PW6 HC Rajender He is the duty officer PS Chanakya Puri who registered the FIR Ex.PW6/A on the rukka received from ASI Chajju Lal.
PW7 Vishal Singh @ He is an employee of PW3 Lokesh Ramu Kumar Bhutani who had received a call in the night of 04.03.2011 from Vipin Singh PW1 about loot of the truck.
PW8 Mithun @ Suraj He is also an employee of PW3 Lokesh Bhan Kumar Bhutani. He had also received a call on his mobile phone from Vishal Singh PW7 about loot of the truck.
PW9 Sunil Kumar He stated that he had purchased the TSR DL-1RJ-1412 from M/s Dhara Motors in 2006 which was in the name of Sukhbir and then he sold it to Chaman Kumar after about 2½ years. He further stated that in February, 2011 Smart Card of the TSR was prepared and Chaman Kumar then resold it to him and he then sold it to Din Dayal on 09.02.2011 and till then the vehicle remained in the name of Sukhbir.
PW10 Din Dayal He stated that he had purchased the TSR DL-1RJ-1412 from Sunil Malhotra in February, 2011 and then sold it to Jamil and Mumtaz. He also identified Mumtaz in the Court.
PW11 Sukhbir Singh He was the registered owner of TSR DL-
1RJ-1412 which he had purchased in November, 2003 and had stated that he State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 11/50 had sold it to Sunil Malhotra after 2½ years. He also got a Smart Card prepared which he handed over to Chaman. The Smart Card remained in his name.
PW12 Inderjeet Dora He was involved in sale and purchase of TSR and purchased TSR DL-1RJ-1412 from Ram Bharat and sold it to Sunil Malhotra in 2006.
PW13 HC Bhoop Singh He had recorded DD No.30A Ex.PW13/A Yadav at 2:10am on 05.03.2011 which was assigned to ASI Chajju Lal for inquiry.
PW14 ASI Mathias He was posted as MHCM PS Special Baxla Cell and produced registers no.19 and 21. PW15 Zamil Ahmed He had purchased TSR DL-1RJ-1412 form one Tillu in 2011 which was seized by the police from him vide seizure memo Ex.PW1/C. PW16 Ct Shyam Lal He was part of the Crime Team District North East in whose presence chance fingerprints were lifted from the looted vehicle TATA-709 bearing registration no. DL-1LG-1090. He himself had clicked six photographs Ex.PW16/A1 to Ex.PW16/ A6.
PW17 ASI Rustam He was the Duty Officer who recorded
Khan the arrival entry DD No.21 dated
01.04.2011 Ex.PW17/A.
PW18 HC Randhawa He was posted in PS Saket. He had
arrested Sattar Ahmed on the basis of
secret information on 01.04.2011 and
had recorded his disclosure statement.
PW19 Avdesh Kumar, He had examined the sample fingerprints
Finger Print of the accused persons with the chance
Expert prints and had given his report
Ex.PW19/A as per which they matched
with Laxman Singh.
PW20 ASI Rajender He was part of the mobile Crime Team
Singh North East District on 07.03.2011 which
State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 12/50
had inspected TATA-709 bearing
registration no. DL-1LG-1090.
PW21 Ct Rakesh He had accompanied ASI Chajju Lal
during the inquiry of DD No.30A in the
intervening of 4/5.03.2011 and was also
present with the IO during investigation
on 06.03.2011.
PW22 HC Raj Kumar He was part of the police team of the
Special Cell which had apprehended
accused Nazir, Shanu @ Kasim and
Anwar Hussain on 06.03.2011 and had
recovered the looted articles on their
pointing out. He also joined investigation on 07.03.2011, 15.03.2011 and 09.04.2011.
PW23 ASI Chajju Lal He was assigned DD No.30A PS Meena Chanakya Puri for inquiry and had also prepared the rukka on the basis of which the present FIR was registered.
PW24 Vinod Kumar He is one of the persons who had booked Bansal his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW25 Gajender Pal He is one of the persons who had booked Singh his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW26 Bhupender He is one of the persons who had booked Kumar his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW27 Rajesh He is one of the persons who had booked State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 13/50 his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW28 Mahavir Prasad He is one of the persons who had booked Jain his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW29 Neeraj He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW30 Shashank Jain He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW31 Rajender Jaggi He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW32 Rajender Singh He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 14/50 PW33 Naresh He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW34 Pramod Kumar He is one of the persons who had booked Jain his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW35 Hari Dev Dawar He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW36 Dimple Kumar He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW37 Shashi Prasad He is one of the persons who had booked Chaturvedi his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW38 Krishan Lal He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 15/50 superdari.
PW39 Ram Sharan He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW40 Sunil Kumar He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW41 Balram Singh He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW42 Sharad He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW43 Darshan Kumar He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW44 Swatantra He is one of the persons who had booked Kumar Jain his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 16/50 recovered goods and taken them on superdari.
PW45 Anil Seth He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW46 Vinod Kumar He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW47 Anil Popli He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW48 Nirmal Gupta He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW49 Sh. Vinay He had conducted the TIP proceedings Singhal, the then qua Sattar Ahmed vide Ex.PW49/B in Ld. ARC, THC, which the said accused had refused to Delhi. participate.
PW50 Sh. Vinay He had conducted the TIP proceedings Singhal, the then qua Javed @ Chikna vide Ex.PW50/B in Ld. ARC, THC, which the said accused had refused to Delhi. participate.
PW51 Ms. Kiran Gupta, She had conducted the TIP proceedings the then Ld. SCJ qua Anwar Hussain, Mohd. Nazir and cum ARC, PHC, Shanu @ Kasim vide Ex.PW1/B1, State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 17/50 New Delhi. Ex.PW51/B and Ex.PW51/C respectively.
Anwar Hussain was positively identified while Mohd. Nazir and Shanu @ Kasim refused to participate in the TIP.
PW52 Praveen Kumar He is one of the persons who had booked Singh his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW53 Savinder Singh He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW54 Mohd. Anzar He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW55 Harpreet Singh He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW56 Mohd. Ajaz He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW57 Sanjeev Jha He is one of the persons who had booked his goods for transport through M/s State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 18/50 Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW58 Sh. Vijay He had conducted the TIP proceedings Shanker, the qua Laxman @ Sonu vide Ex.PW58/B in then Ld. ACMM, which the said accused had refused to Rohini. participate.
PW59 Mukesh Kumar He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW60 Rakesh Kumar He is one of the persons who had booked Gupta his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW61 Mehtab Alam He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW62 Sumit Kumar He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW63 Nikesh Sharma He is one of the persons who had booked his goods for transport through M/s Jaipur Golden Transport on the looted truck i.e. TATA-709 bearing registration State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 19/50 no. DL-1LG-1090 and had identified his recovered goods and taken them on superdari.
PW64 W/Ct. Suman She was part of the investigation on Yadav 02.07.2011 when the accused Mumtaz was arrested.
PW65 SI Devender He is the IO of the case.
Prasad PW66 SI Rambir He had formally arrested Nazir, Shanu @ Singh Kasim and Anwar Hussain in FIR No. 31 of 2011, PS Kashmiri Gate.
PW67 SI Dharmender He had arrested accused Mumtaz in FIR No. 209 of 2011 PS Burari on 27.06.2011.
17. Statements of the accused persons under Section 313 of the Cr.P.C. were recorded. They denied all the incriminating evidence put to them and claimed false implication at the instance of the police. None of the accused persons desired to lead any evidence in defence.
18. Arguments were addressed on behalf of the accused persons by Sh.Sanjeev Kumar, Sh.Asim Ali and Sh.S. Haq. It was submitted that the accused persons have been falsely implicated in this case. It was submitted that PW1 Vipin Singh instead of calling the police called his employer. It was submitted that PW3 Lokesh Kumar Bhutani has stated that he got information of loot of the vehicle from another employee Mithun. The truck was allegedly looted at 9:30pm on 04.03.2011 but no complaint was made to the police till 2:45pm on 06.03.2011. It was submitted that on the same day i.e. 06.03.2011, the Special Cell of Delhi Police had apprehended the accused persons at about 2pm. Information of the loot was given by the complainant to PS Chanakya Puri after the accused persons had been apprehended which was incredible. It was submitted that the accused persons were shown State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 20/50 to PW1 even prior their TIP being conducted and as such their identification in the Court by PW1 was of no value. It was submitted that in the factual scenario narrated by PW1, it was dark when he was looted and he could have had only a fleeting glance of the accused persons. It was improbable for him to have recollected the faces of the accused persons so as to identify them in the Court. PW1 did not ascribe any specific role to any of the accused persons. It was further submitted that no public witnesses were associated in the apprehension of the accused persons and recoveries effected from them.
19. It was further submitted that as per the first statement of the complainant PW1 his vehicle had been overtaken by two TSR but subsequently he has stated that there was one TSR and one motorcycle used in the incident. There was improvement in the statement of PW1 and the story of the motorcycle has been introduced to implicate Javed @ Chikna in the case. It was submitted that the truck of PW3 was found by PW3 himself lying abandoned at Rajender Nagar, Sahibabad, Gaziabad which again was not believable. As far as the rented godown of PW4 Som Dutt from where the goods were recovered is concerned, he has identified only Mumtaz. It was submitted that PW4 did not produce any proof of tenancy of the said godown and there was on documentary evidence produced by the prosecution in this regard. It was submitted that PW4 has not stated the date on which the tenancy was made, the month and year when the goods were brought to his godown. PW4 stated that he had rented the premises to Mumtaz at the instance of one Pooja but Pooja was not examined as a witness. PW4 produced the identity proof of Mumtaz only in cross examination. He had not given it to the police. It was stated that Mohd. Nazir in his disclosure statement has stated that he had kept the looted goods in a State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 21/50 godown rented by him and had the key of the same which he gave to the police. There is no explanation about the key of the premises which had been taken by the police from Mohd. Nazir. It was submitted that no TIP of Mumtaz was conducted qua witness PW4. Statement of PW4 was recorded only on 12.03.2011 even though he had signed as a witness on the recovery memo dated 06.03.2011.
20. It was further submitted that the recoveries were effected of the looted articles only at the instance of Mohd. Nazir, Shanu @ Kasim and Anwar Hussain and no recovery has been made at the instance of other accused persons. It was submitted that there were contradictions in the statements of PW1, PW3, PW7 and PW8 regarding the manner in which the incident was reported to the police.
21. On the other hand Ld. Addl. PP for the State has submitted that the information of the incident was given to PS Chanakya Puri while the accused persons Mohd. Nazir, Shanu @ Kasim and Anwar Hussain were apprehended by the Special Cell of Delhi Police on secret information and on their disclosures the looted articles were recovered. Anwar Hussain participated in the TIP and was positively identified by Vipin Singh while Mohd. Nazir and Shanu @ Kasim refused to participate in the TIP. Subsequently, the other accused also put to TIP refused to participate in the same. They were then identified by Vipin Singh. Fingerprints of Laxman Singh @ Sonu have been found in the looted truck. The premises used to store the looted goods had been taken on rent by Mumtaz who is the sister of Mohd. Nazir and Shanu @ Kasim. The TSR used in the incident was owned by Jamil, husband of Mumtaz. All the witnesses have supported the version of the prosecution and there is thus sufficient evidence on the State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 22/50 record warranting conviction of the accused persons.
22. I have heard Ld. Counsel for the accused persons and the Ld. Addl. PP for the State. I have also perused the record of this case. My findings are as under:-
APPREHENSION OF MOHD. NAZIR, SHANU @ KASIM AND ANWAR HUSSAIN ON 06.03.2011 AND RECOVERY OF LOOTED ARTICLES AT THEIR INSTANCE
23. The manner in which the prosecution claims to have apprehended Mohd. Nazir, Shanu @ Kasim and Anwar Hussain and effected recoveries from them has already been detailed above. The witnesses to the same are PW22 HC Raj Kumar and PW65 SI Devender Prasad. Both PW22 and PW65 have deposed in their examination in chief as per the case set up by the prosecution. I am therefore not referring to the same.
24. PW22 was cross examined by Sh. Asim Ali, Legal Aid Counsel who was representing all accused except Mumtaz. In cross examination, PW22 stated that the secret information was shared with the members of the police team by senior officials. They had left the office of Special Cell in private vehicles whose registration numbers, he could not recollect. Public persons were not associated with the police team but explained that public persons were requested to join the investigation but they had refused. He stated that Anwar Hussain did not effect any recovery individually. He denied the suggestion that the signatures of the accused persons were taken on blank papers and were misused to prepare their disclosure statements. He denied the suggestion that the accused were not kept in muffled face. PW22 was State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 23/50 not subjected to any cross examination on behalf of Mumtaz.
25. PW65 in cross examination on behalf of the accused persons stated that on 07.03.2011, the investigation was handed over to him. He did not record the statement of the person who called the PCR. He could not remember the mobile number from which the said call was made. He did not make any inquiry in regard to DD no. 30, PS Chanakya Puri on 05.03.2011. He admitted that no FIR was registered on the basis of the said DD. He did not inform the police station at Shahibabad at the time of seizure of the looted truck. No public person was requested to join the investigation when the truck was seized. He could tell the name of the driver who took the truck to PS Special Cell Lodhi Colony. He did not record the statement of the said driver. He voluntarily stated that he had recorded the statement of owner of the truck Lokesh Kumar. He deposed that HC Umesh accompanied the driver of the truck to PS Special Cell. He could not remember if HC Raj Kumar and HC Umesh signed the seizure memo. He further deposed that they brought back the case property from Prahlad Garhi, Indirapuram, Ghaziabad in two TATA-407 vehicles, one was having UP registration number and other was having a registration number of Delhi but he could not recollect the registration numbers of both the vehicles. He deposed that HC Ashok had arranged the said vehicles and he i.e. PW65 had paid Rs.3000/- as charges of the said vehicles. He did not record the statements of the drivers of said two vehicles or their owners. He deposed that they reached the police station at about 9pm. He has recorded the statements of the godown owner Som Dutt Sharma in Indirapuram. He could not recollect the exact date on which he had recorded the said statement.
State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 24/50
26. PW65 in further cross examination deposed that he did not find any CCTV camera on the road where the incident took place. He deposed that the complainant had stated that there was a motorcycle and one TSR which came before his vehicle. He deposed that initially the complainant told him that there were two TSRs but subsequently, he clarified that there was one motorcycle and one TSR and that he had got confused. He deposed that the said clarificatory statement was recorded by him on 15.03.2011. He deposed that he had recorded 3-4 statements of the complainant. He denied the suggestion that he had cooked up the story of motorcycle being used to falsely implicate the accused. He deposed that he was the IO from 07.03.2011 till filing of the charge-sheet. He deposed that all the memos were not in his handwriting and some of them were written by team members under his dictation.
27. PW65 in further cross examination deposed that on 07.03.2011, they left police station Special Cell at about 8pm for Shahibabad and reached there at 9pm. They went there in two cars, one was a Santro Car but he could not remember the make of other car. He went there along with ASI Ajayveer, HC Raj Kumar and Ct Umesh and Lokesh Kumar Bhutani who along with his driver came to the police station at about 7:45pm. Lokesh Kumar Bhutani told him the place from where the truck was parked but he i.e. PW65 did not know the name of driver who had stated about the looted truck to Lokesh Kumar Bhutani. He denied the suggestion that Javed @ Chikna was lifted from the Karkardooma Courts where he came in Court of Lok Adalat to attend his case and his motorcycle was picked up from the parking of Karkardooma Courts.
State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 25/50
28. PW65 in further cross examination deposed that they reached ISBT Anand Vihar at about 1:50pm on 06.03.2011. They were standing at the entry gate. They did not serve any notice to any public person. They did not request any employees or staff of ISBT to join the investigation and explained that the same was far from the spot. He left the spot at 3-3:30pm. He deposed that no other public person except the owner agreed to join the investigation at Prahalad Garhi. They reached there at about 4:30pm and remained there for about three hours. He deposed that on 07.03.2011, the case file of the present case was handed over to him at about 2pm and after producing the accused persons before the Court, he came back to the police station at about 5:30pm. He himself recorded the disclosure statement of Javed @ Chikna at the MCD Office, Karkari Road at about 12:30pm. He did not obtain signature of any employee of MCD on the said disclosure statement. The disclosure statement was signed by him as well as by HC Raj Kumar and the accused. He reached at MCD office at about 10:45am and remained present there till 1pm. He recorded the statement of HC Raj Kumar at the office. He deposed that none of the accused persons disclosed about the whereabouts of the truck on 06.03.2011.
29. The examination in chief and cross-examination of PW22 and PW65 is absolutely consistent and clear. There are no contradictions or inconsistencies which cast any doubt on their version. It is also to be seen that PW65 had recorded the secret information and the fact of constitution of a police team vide DD No.4 Ex.PW65/A. He did ask public persons to join the investigation but they had not agreed. In the case of In the case of Gian Chand v. State of Haryana reported in (2013) 14 SCC 420 the Hon'ble Supreme Court was pleased to refer to State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 26/50 the law on the said question and hold as under:-
"The wise principle of presumption, which is also recognised by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through cross-examination of witnesses or through other materials, to show that the evidence of the police officer is unreliable. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action is unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
30. It was further observed by the Hon'ble Supreme Court in the case of Gian Chand v. State of Haryana that:-
"37. Section 114 of the 1872 Act gives rise to the presumption that every official act done by the police was regularly performed and such presumption requires rebuttal. The legal maxim omnia praesumuntur rite it dowee probetur in contrarium solemniter esse acta i.e. all the acts are presumed to have been done rightly and regularly, applies. When acts are of official nature and went through the process of scrutiny by official persons, a presumption arises that the said acts have regularly been performed."
31. In the case of Gian Chand v. State of Haryana (supra) the Hon'ble Supreme Court was pleased to hold that not joining a public witness by the police would not be fatal to the case set up regarding recoveries from the accused. It was held that the presumption prescribed under section 114 of the Evidence Act regarding official acts State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 27/50 having been performed regularly is attracted to the acts of the police. Such presumption was rebuttable and the onus to rebut the same would be on the accused. The ratio laid down by the Hon'ble Supreme Court applies squarely to the present case. A presumption arises in respect of the recovery proceedings of the police team which was to be rebutted by the accused persons either by cross examining witnesses or from any other material. Further the Hon'ble Supreme Court was pleased to hold that by virtue of the provisions of Section 114, illustration (e) of the Evidence Act, there was a presumption that official acts have been regularly performed and that the said presumption also attracted to the functions of the police. Merely by stating that no public witnesses were associated with the investigation conducted by the police would not rebut such a presumption. The same could be rebutted by way of effective cross-examination of the police witnesses as well as by leading defence evidence.
32. In the present case, there is nothing in the cross- examination of PW22 and PW65 which could cast any doubt on their version or to shake the presumption under Section 114 of the Evidence Act.
32. Ex.PW22/G is the joint disclosure statement of Mohd. Nazir, Shanu @ Kasim and Anwar Hussain. They had disclosed that they had carried out the loot of the said truck and stored the looted items in a rented godown at Indirapuram Gaziabad. They then led the police team to the said godown which is owned by PW4 Som Dutt. At the godown, looted articles were recovered and seized vide memo Ex.PW4/A. State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 28/50
33. PW4 Som Dutt is the owner of the said godown. He stated that the Delhi Police had come with three persons in their custody and the police informed him that the goods in his godown were looted goods. The police had seized the goods vide seizure memo Ex.PW4/A on which he had identified his signatures. He stated that he had not executed any rent agreement with Mumtaz.
34. As regards the identification of the looted goods, PW24 to PW48, PW52 to PW57 and PW59 to PW63 are the persons who had booked goods for transportation on the very truck which was looted. These witnesses were informed about the recovery of the looted articles. They identified the goods belonging to them and took them on superdari. These witnesses appeared in Court and proved the documents of transportation through which they have booked their goods on the truck which was eventually looted. Further PW1 has also identified the cartons recovered from the rented godown at Indirapuram as the one which had been looted from his truck.
35. Thus in view of the testimonies of PW22, PW65, PW4, PW24 to PW48, PW52 to PW57 and PW59 to PW63 it stands proved beyond any reasonable doubt that of Mohd. Nazir @ Nanha, Shanu @ Kasim and Anwar Hussain were apprehended on 06.03.2011 and that they had led the police team to the godown of PW4 from where the looted articles were recovered at their instance.
ASSOCIATION OF MUMTAZ WITH THE RENTED GODOWN AND RECOVERED GOODS
36. As per the case of the prosecution, Mumtaz who is sister of Mohd. Nazir and Shanu @ Kasim was in league with them as it was State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 29/50 she who had provided a place to them to store the looted goods. The material witness in this regard is PW4 Som Dutt, owner of the rented premises.
37. PW4 Som Dutt has stated that he was the owner of the said godown which he had rented to Mumtaz whom he positively identified in the Court. He stated that he had leased the said godown to her. On the day of leasing the same, one tempo had come at night with a bundle of clothes which were unloaded in the godown in the presence of Mumtaz. He further stated that in the night of fourth one truck had come with 4-5 persons along with Mumtaz and goods were kept in the godown. On the sixth, Delhi Police had come with three persons in their custody and the police informed him that the goods in his godown were looted goods. The police had seized the goods vide seizure memo Ex.PW4/A on which he had identified his signatures. He stated that he had not executed any rent agreement with Mumtaz.
38. In cross-examination, PW4 denied the suggestion that it was his son Susheel who used to give his godowns on rent. He stated that he had 25 more rooms which he had leased out and he had kept the identity proof of all his tenants. He stated that he knew Pooja who was also his tenant. He stated that he had seen Mumtaz for the first time with Pooja and that he had leased the godown to Mumtaz at the instance of Pooja who used to work as a maid servant in the house of Mumtaz. He stated that he had taken the identity proof of Mumtaz but had not given the same to the police. He had brought the identity proof of Mumtaz with him in Court which he produced during cross- examination. He stated that he has given the identity proof of all his tenants to the local police but he had not given the identity proof of State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 30/50 Mumtaz to the police. He explained that before he could do so, the police had come to his premises within 2-3 days of creation of the tenancy.
39. It had been argued by the Ld. Counsel for the accused persons that PW4 had not stated the date on which the tenancy was created and had not produced any documentary evidence of creation of tenancy and that Pooja whose name came up in his cross-examination was not examined as a witness.
40. Reading the testimony of PW4 as a whole, it appears to this Court that PW4 has in fact stated the date of the tenancy as well as the other relevant dates. Paragraphs no.2 and 3 of his examination in chief are reproduced as under:-
"On 02th of month 2011 the said godown was rented out to Mumtaz (accused present in the court today correctly identified) in the monthly rent of Rs.5000/-. As she told me that she was having a business of clothes and bundle of clothes used to store there. On the same day in the night hours at about 9:30 PM one tempoo came there with bundles of clothes. The said bundles of clothes were unloaded and kept in the godown. At that time accused Mumtaz also present there.
In the night of 4th one truck came there and at that time 4-5 persons alongwith accused Mumtaz were present and goods were kept in the said godown. On 6th Delhi Police came there and told me that the goods which were lying in the godown were looted goods. At that time 3 persons are in the custody of the police. Thereafter police seized those articles vide Seizure Memo which is Ex. PW 4/A bearing my signatures at point A. Goods were taken by the police in two different tempoo. I had not executed any rent agreement with accused Mumtaz and thereafter I interrogated by the police and recorded my statement in this regard."
State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 31/50
41. The first line of para no.2 states that the creation of tenancy was on the second of "month of 2011". The specific month is not recorded but he does refer to the truck coming to his godown in the night of the fourth and the police coming on the sixth. He had identified his signatures on the seizure memo Ex.PW4/A which is dated 06.03.2011. In cross-examination, he has stated that he could not give the identity proof of Mumtaz to the local police as the police had come to his premises within 2-3 days of creation of the tenancy. As per the seizure memo Ex.PW4/A the police had come to his premises on 06.03.2011 and 2-3 days before that would be 03.03.2011. In the statement under Section 161 of the Cr.P.C. of Som Dutt, the date of creation of the tenancy is mentioned as 02.03.2011. In these facts and circumstances, it may be possible that the date of creation of tenancy was deposed to be 02.03.2011 by PW4 during his examination in chief but the same was either not correctly typed or incorrectly recorded in the evidence sheet. Be that as it may, as already observed, from the examination in chief and cross-examination coupled with Ex.PW4/A, it is clear to this Court that the date of creation of tenancy was 02.03.2011.
42. As regards the submission regarding no documentary evidence of the creation of tenancy, judicial notice of the fact can be taken that not all tenancies are documented and people operate on oral tenancies as well. PW4 has correctly identified Mumtaz. In cross- examination a question was put to PW4 by the counsel for the accused whether he knew anybody by the name of Pooja and PW4 stated that Pooja was his tenant who had brought Mumtaz to him and he had leased the godown to Mumtaz at her instance. He has stated that Pooja was used to work as a maid servant for Mumtaz. It is also to be noted State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 32/50 that a suggestion was given to PW4 to the effect that he had implicated Mumtaz in the case as he did not want her to visit his tenant Pooja.
43. The name of Pooja has been taken by counsel for the accused himself during cross-examination of PW4. It has come in the cross-examination of PW4 that Pooja was the maid servant of Mumtaz. Thus the association of Mumtaz with Pooja and the premises stood established. PW4 also produced the identity proof of Mumtaz and has identified her to be his tenant. In these facts and circumstances, the testimony of PW4 is totally believable. It therefore stands proved that it was Mumtaz who had taken the premises of PW4 on rent and was instrumental in having the looted goods stored there.
INCIDENT OF LOOT ON 04.03.2011
44. As per the case of the prosecution, Mohd. Nazir @ Nanha, Shanu @ Kasim, Anwar Hussain @ Raju @ Bechain, Sattar Ahmed, Laxman Singh @ Sonu, Javed @ Chikna, had followed Vipin Singh PW1 in a TSR and a motorcycle, blocked his path and looted his truck.
45. PW1 in his examination in chief has stated that on 04.03.2011, he had loaded goods from his office and was on the way to Manesar. When his vehicle reached ahead of the traffic signal on ridge road, two autos stopped in front of his truck forcing him to stop. Three persons entered the truck from the side of conductor / front passenger seat and one from the side of the driver. The person who entered from the side of conductor put a katta on his head and threatened to kill him if he raised any alarm and he was beaten up and the other person who entered from the side of the conductor had threatened him with a knife. He was forcibly taken out from the truck and put into an auto and taken State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 33/50 to Okhla forest where he was let off after his mobile phone, wallet with Rs.2000/- cash and driving license was snatched from him. He then reached Lajpat Nagar and called his owner Lokesh Bhutani who also came to Lajpat Nagar and from there they went to their office at Karol Bagh. Then they tried to look for his looted truck on 05.03.2011 but could not find it. He then went to PS Chanakya Puri with Lokesh Bhutani and made his complaint on the basis of which the FIR was registered.
46. PW1 stated that on 10.03.2011, he had gone to Tihar Jail to participate in TIP proceedings and had identified accused Anwar Hussain. PW1 thereafter identified accused Anwar Hussain in the Court to be the person who had put a katta on his head. PW1 then identified accused Sattar Ahmed in the Court to be the person who drove the TSR in which he was forcibly taken to Okhla forest. He stated that he was called to the police station on 15.03.2011 and had seen Sattar Ahmed in the custody of the police and it was Sattar Ahmed to led them to Wazirpur to get the TSR used in the incident recovered. He identified his signatures on the seizure memo Ex.PW1/C of the said TSR.
47. PW1 further stated that he was again called to Tihar Jail for TIP proceedings but he was informed that the accused persons had refused to participate in the same. He was then shown two photographs of accused persons whom he identified. Thereafter PW1 identified in the Court Laxman @ Sonu who he stated had driven the truck from the spot, Mohd. Nazir as the person who had threatened him with a knife and Shanu @ Kasim as the person who had forcibly restrained him in the TSR. PW1 identified the TSR, the looted truck and ten looted cartons in the Court.
State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 34/50
48. In cross-examination on behalf of Shanu @ Kasim and Mumtaz, PW1 stated that he was employed as a driver of Lokesh Bhutani for the past 2-3 years. He had left the office at 9:30pm on the date of the incident. He reached Ridge Road at about 10pm. The distance between Ridge Road and his office was about 7 kms. There were no street light at the spot and it was dark at that place. He did not know who took out the keys from his truck. He was robbed in one minute. He deposed that it was dark but he could see the faces of the accused persons from the light of vehicles on the road. He stated that although the light was dim he could see the faces of the accused persons from the headlights of vehicles which were crossing them. He had given descriptions of the accused person to the police. He could not shout as he was threatened. He could not tell the time when he left by the accused persons at Okhla forest because his mobile phone had been robbed and he did not have a wrist watch. He knew the mobile number of his employer which he stated to be 9313351919. He called on the said number but it could not be connected. He did not remember his own mobile number at the time of cross-examination. His owner had reached Lajpat Nagar at about 12noon on 05.03.2011. He neither called the PCR by dialing no.100 nor told anything to anyone on his way from Okhla forest to Lajpat Nagar. He could not remember at what time he reached his office. He had gone to Ridge Road with his owner in the day time on 05.03.2011. He looked for his truck at Wazirpur, Sanjay Gandhi Transport Nagar etc. He stated as correct that during this period, he did not inform the police. He did not remember at what time he reached police station Chanakya Puri on 06.03.2011. Three police officers had taken him to the place of the incident before registration of the complaint. He stated that there were five persons including him in which he was taken to Okhla forest. He was confined to the rear seat. Anwar State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 35/50 Hussain, Shanu @ Kasim and Nazir were sitting with him while Sattar Ahmed was driving the TSR. It is recorded in the evidence sheet that the witness correctly identified the accused persons again by pointing out towards them. He stated that they met the police team on 10.03.2011.
49. In cross-examination on behalf of the accused Javed @ Chikna, PW1 had stated that the police might have shown him photographs of two accused persons on 30.03.2011. He admitted as correct that he had not mentioned in statement to the police that there was a motorcycle at the spot at the time of the incident.
50. In cross-examination on behalf of the accused Nazir @ Nanha, PW1 stated that his first statement was recorded on 06.03.2011 in which he had not mentioned registration number of the autos. He stated that he identified the TSR as in the same there were two big speakers and one antenna. He had telephoned Ramu after coming from the Okhla Forest using the mobile phone of some auto driver. He could not remember the mobile number of Ramu at that state. He stated that when he was looted there were six persons. He denied the suggestion that Nazir @ Nanha was shown to him in police station on 15.03.2011. Voluntarily, he stated that his photograph had been shown to him but he could not recollect the date. He stated that the other auto parked on the other side at the time of the incident was not shown to him by the police. He denied having told the police that the person who had shown him a knife had also drove his truck. He was confronted with his statement Ex.PW1/A were it was found so recorded. He could not remember whether he told the police that one motorcyclist was also following him when his statement was recorded. He admitted that he did not know as State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 36/50 to what articles were inside the cardboard boxes which had been loaded in the truck.
51. In cross-examination on behalf of the accused Laxman @ Sonu, PW1 has stated the he did not realise that he was being followed before he had been stopped. His truck had been overtaken at a distance of about 200-300 meters ahead of Buddha Park traffic signal. He deposed that there were 1-2 Maruti vehicles behind his truck. He could not remember whether the TSR was also stationed adjoining his truck at the red light. He admitted as correct that when he was forced to stop, he had seen only one auto in front of his truck. He stated as correct that the auto in which he was confined was on the left side of his truck. He admitted as correct that he was shown photograph of Laxman @ Sonu by the police on 30.03.2011. He denied the suggestion that he had identified Laxman @ Sonu only on the basis of photographs shown. Voluntarily, he explained that he had seen him in his truck.
52. Submissions had been made that the identification of the accused persons by PW1 in the Court could not be relied upon as they have been shown to the witness prior to the TIP proceedings.
53. In this regard, it is to be seen that Anwar Hussain, Mohd. Nazir and Shanu @ Kasim had been apprehended by the Special Cell of Delhi Police on 06.03.2011 and arrested under Section 41.1 of the Cr.P.C. They were formally arrested on 07.03.2011 in the present FIR. They were sent for TIP on 10.03.2011. Anwar Hussain participated in the TIP and was positively identified by PW1. Mohd. Nazir and Shanu @ Kasim refused to participate in the same.
State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 37/50
54. I have gone through the examination in chief and cross- examination of PW1. There is nothing stated by PW1 from which it can be inferred that any of these accused persons had been shown to him prior to their TIP.
55. Sattar Ahmed had been arrested by HC Randhawa of PS Saket under Section 41.1 of the Cr.P.C. on 01.04.2011. Upon information having been received by the IO of this case, he was produced in the Court of Ld. CMM in muffled face on 02.04.2011. His TIP was held on 02.04.2011 in which he refused to participate.
56. In his examination in chief PW1 stated that on 15.03.2011, he was called by the police and he identified the looted articles in the police station. He further stated that on the same day, he seen Sattar Ahmed in police custody whom he identified to be the person who had driven the TSR in which he was forcibly taken to Okhla forest. He further deposed that thereafter Sattar Ahmed led the police team to Wazipur from where he got said TSR recovered which was seized vide memo Ex.PW1/C. In this regard if the record is perused, there is a statement under Section 161 of the Cr.P.C. of PW1 as per which PW1 had been called to the police station Special Cell to identify the looted articles. It is further recorded that three accused persons namely Mohd. Nazir, Shanu @ Kasim and Anwar Hussain were also in the custody of the police. Anwar Hussain had already been identified by him in the TIP. PW1 identified Mohd. Nazir and Shanu @ Kasim on 15.03.2011 in PS Special Cell to be the two other persons also involved in the incident. It appears to this Court that the said proceedings were undertaken by the IO only after Mohd. Nazir and Shanu @ Kasim refused to participate in the TIP to confirm the identities of the said accused persons that it was they State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 38/50 who had been involved in the incident. The same is recorded in the examination in chief of PW65 SI Devender Prasad.
57. In the case of Manu Sharma vs. State, (2010) 6 SCC 1, a submission was made before the Hon'ble Supreme Court that after refusal of TIP, the accused had been shown to the witnesses and their statements recorded with respect to identification of the accused. Refuting the said submission, it was held that a TIP is only an aid to investigation where an accused is not known to a witness. The TIP is conducted by the IO only to ensure that the right person has been apprehended. It is a practice not out of procedure but out of prudence. It was further held that TIP is not substantive evidence and substantive evidence is the evidence given in the Court on oath. In the case of State vs. Bashir Ahmed Ponnu, Crl. A. 1065 of 2014 decided by the Division Bench of the Hon'ble Delhi High Court on 08.12.2014, the Hon'ble High Court in respect of TIP further observed that identification by a witness of an accused in the dock is substantive evidence and TIP was only an aid in investigation. Thus no illegality was committed by the IO in getting the identity of the said accused confirmed from the witness after the accused had refused to take participate in the TIP.
58. Sattar Ahmed had been arrested formally on 02.04.2011 and sent for TIP on 02.04.2011 in which he refused to participate. On 03.04.2011, Sattar Ahmed in police custody had led the police team which led to the apprehension of Laxman @ Sonu. On that day i.e. 03.04.2011, Vipin Singh PW1 was called by the IO to the office where he identified Sattar Ahmed to be that person who was driving the TSR at the time of the incident. The same was done by the IO to confirm identify of the accused. Thereafter Sattar Ahmed led the police team State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 39/50 along with Vipin Singh and got the TSR used in the incident recovered. Vipin Singh also identified the TSR which was then taken into possession vide memo Ex.PW1/C. These facts are recorded in the supplementary statement dated 03.04.2011 of Vipin Singh under Section 161 of the Cr.P.C. It is found recorded in the seizure memo Ex.PW1/C as well as in the examination in chief of PW65. It is therefore apparent that PW1 must have got confused at the time of his examination in chief in the Court that he had seen Sattar Ahmed in the police custody on 15.03.2011. It is understandable that a person who had been subjected to such an incident by the accused and still had the courage to come and depose in the Court to identify the perpetrators could have got confused considering passage of about eight months from the date of the incident and the number of accused persons involved. The statement of PW1 that he had seen Sattar Ahmed on 15.03.2011 is nothing but an accidental slip which was overlooked by Ld. Addl. PP for the State who at that time was examining the said witness.
59. In these facts and circumstances it cannot be said that the accused Sattar Ahmed was shown to PW1 before his TIP proceedings.
60. As per case of the prosecution, Laxman Singh @ Sonu was arrested on 03.04.2011. He was sent for TIP on 03.04.2011 but he refused to participate in the same. Javed @ Chikna was arrested on 09.04.2011 and sent for TIP on 20.04.2011 in which he also refused to participate. In his cross-examination, PW1 has stated that during the course of investigation, he had been shown two photographs by the IO. He identified them to be the robbers involved in the incident. He then identified Laxman Singh @ Sonu and Javed @ Chikna in the Court. In State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 40/50 cross-examination, he stated that police might have shown him photographs of two accused persons on 30.03.2011.
61. The record contains a statement under Section 161 of the Cr.P.C. dated 30.04.2011 of Vipin Singh PW1 as per which he was shown photographs to two accused persons whom he identified to be involved in the incident. This statement further records that one photograph was of Laxman Singh @ Sonu and another was on Javed @ Chikna. It further records that Laxman Singh @ Sonu was the person who driven the TSR from the spot and Javed @ Chikna was the person who was on the motorcycle. In the examination in chief PW65 / IO had stated that Laxman Singh @ Sonu and Javed @ Chikna had refused to participate in the TIP on 13.04.2011 and 20.04.2011 respectively. Thereafter Vipin Singh was called to the office of Special Cell and shown photographs of these two accused persons which he identified.
62. Once again it is apparent that PW1 has deposed in Court truthfully. He has stated in examination in chief that police had shown him two photographs through which he identified the said accused persons. He deposed that the photographs were probably shown to him on 30.03.2011. The date of 30.03.2011 cannot be taken to be as correct as both Laxman Singh @ Sonu and Javed @ Chikna were apprehended only 03.04.2011 and 09.04.2011 respectively which is later than 30.03.2011. As per record, there is a statement under Section 161 of the Cr.P.C. of Vipin Singh as per which photographs of these two accused persons were shown to PW1 on 30.04.2011 and not on 30.03.2011. The same has also been deposed to be so by PW65 in his examination in chief. Therefore it is apparent that the accused persons namely Laxman Singh @ Sonu and Javed @ Chikna were not shown to State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 41/50 PW1 before their TIP. The IO had shown photographs of both the accused persons only to confirm their identities after the accused persons refusing to participate in the TIP. Thus the submission on the part of the accused persons that the accused persons were shown to PW1 prior to their TIP is actually incorrect.
63. Thus the discrepancies in the statement of PW1 Vipin Singh are not only minor but explainable from the record of the case itself. The accused persons cannot claim any benefit of the same.
64. Qua Laxman Singh @ Sonu, it may also to be noted that the Crime Team had lifted chance prints from the looted truck. These chance prints were sent for examination and comparison with the sample prints of the accused persons including those of Laxman Singh @ Sonu. As per the report Ex.PW19/A of PW19 Avdesh Kumar, Fingerprint Expert, the sample prints of Laxman Singh @ Sonu were found to be matching with the chance prints lifted from the looted truck. Therefore the report Ex.PW19/A corroborates the version of PW1 that it was Laxman Singh @ Sonu who was part of the gang which looted his truck and the person who actually drove it away from the spot.
65. Submission had been made that there were inconsistencies in the manner in which the incident was reported and there was unexplained delay in registration of the FIR. Further the time of the registration of the FIR and the time claimed by the Special Cell of the apprehension of the accused persons Mohd. Nazir, Shanu @ Kasim and Anwar Hussain on 06.03.2011 was such as it appeared that the FIR was registered after the accused persons had been apprehended by the Special Cell.
State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 42/50
66. Perusal of the testimonies reveals that PW1 has stated that after he was looted at 10pm on 04.03.2011, he walked from Okhla forest to Lajpat Nagar and made a call from the mobile phone of an auto driver to his owner Lokesh Bhutani. In cross-examination, he stated that he had actually called Ramu after coming back from Okhla forest. PW3 Lokesh Kumar Bhutani has stated that at 1am in the intervening night of 4/5.03.2011, he was informed by his driver Mithun about loot of his truck at Ridge Road Buddha Garden and then he reached the spot. He could not find Vipin Singh and therefore he called the police by dialling 100 and the PCR officials came to the spot to whom he narrated the incident and he was taken to PS Chanakya Puri. He was asked to leave after making some inquiries and the police assured to trace his vehicle. On the next day, Vipin Singh came to his house and then both went to the police where his statement was recorded on 06.03.2011.
67. Vishal Singh @ Ramu PW7 stated that he was working for Lokesh Kumar Bhutani as a driver and he got a call on 04.03.2011 at night from Vipin Singh about loot of the truck and told Vipin Singh to call the police but his phone was disconnected. PW7 then called another driver of his employer namely Mithun to inform their owner. PW8 Mithun has stated that in the night of 04.03.2011, he received a call from Vishal Singh @ Ramu about the loot of the truck and then he informed Lokesh Kumar Bhutani about the incident.
68. From the statements of PW1, PW3, PW7 and PW8, it is clear that PW1 had informed PW7 about the incident of loot. PW7 then informed PW8 who in turn made a call to PW3 about the incident and it was PW3 who called the police. There is therefore no perceptible State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 43/50 inconsistency in the versions of PW1, PW3, PW7 and PW8 about the manner and sequence in which PW3 got information about the incident and had called the PCR.
69. The above conclusion is also supported by the record produced by PW13 HC Bhoop Singh Yadav. PW13 has stated that in the intervening night of 4/5.03.2011, he recorded DD No. 30A Ex.PW13/A at about 2:10am on the basis of message having been received from the PCR. The same was handed over for inquiry to ASI Chajju Lal Meena PW23. Ex.PW13/A i.e. DD No.30A records that a call was received in the PCR by lady Constable Poonam from mobile no. 9313351919 that tempo no. DL-ILG-1090 belonging to the caller which was going from Buddha Garden to Dhaula Kuan had been looted by 2-3 boys who were brandishing knives at Buddha Garden. Significantly, the mobile number of the caller is 9313351919. This number is stated by PW1 in his cross-examination to be belonging to his employer Lokesh Kumar Bhutani. Therefore it is clear that it was Lokesh Kumar Bhutani who had called the police after receiving information about the loot of his vehicle.
70. As regards the registration of FIR in PS Chanakya Puri, DD No.30 was recorded at 2:10am in PS Chanakya Puri in the early hours of 05.03.2011 on the PCR call of Lokesh Kumar Bhutani. The same was assigned to PW23 ASI Chajju Lal Meena. He had gone to the place of the incident but he did not find any person there. On the next day i.e. 06.03.2011, Vipin Singh came to the police station on the basis of which he recorded his statement and got the FIR registered. He prepared the site plan Ex.PW1/B at the instance of Vipin Singh but did not find any clue about the incident. On 07.03.2011, investigation of this State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 44/50 case was transferred to the Special Cell. PW23 has not been subjected to any cross-examination whatsoever on the aspect of delay if any in registration of the FIR. No suggestion of any nature has been given to him in cross-examination. There is therefore no factual foundation laid down in support of the oral submission regarding there being any unexplainable delay in registration of the FIR.
71. On behalf of Javed @ Chikna, it had been submitted that the role ascribed to him was that he had along with other co-accused persons blocked the path of the truck of the complainant by using his motorcycle while the other accused persons were on a TSR. It was submitted that PW1 in his complaint had stated about involvement of two autos and not one auto / TSR and a motorcycle.
72. In this regard, in the statement Ex.PW1/A of PW1 Vipin Singh it is recorded as under:-
"byan kiya ki main pata uprokt ka rehnay wala hu aur Jaiprur Golden Transport DBG Road Shop No.794, Karol Bagh, Delhi main Sh. Lokesh Bhutani kay pass bator driver naukri karta hu. Denak 4/3/11 ki raat ko samay karib 9.30PM par Tata 709 no.DL-1LG-1090 main samman bharkar office say Manesar Gurgaon kay liye chala tha wa samay karbib 10pm bajay raat jab main SIMON Boliver laal batti ridge road say thora aagay chala toh do auto walo nay dahini wa baie taaraf say aagay aay wa meray Tempo kay aagay auto lagakar mujhe rukwa liya ....... "
(emphasis supplied)
73. In his examination in chief PW1 has deposed that at 10pm on 04.03.2011 "when I crossed red light, Ridge Road two auto tried to overtake my vehicle and stopped their autos in front of my truck." In cross-examination on behalf of Javed @ Chikna, PW1 has stated as correct that he did not mention in his statement to the police at the time State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 45/50 of the incident that one motorcyclist was also present at the spot. In further cross-examination on behalf of Mohd. Nazir @ Nanha, PW1 has stated that the other auto parked on the other side at the time of the incident was not shown to him by the police. He stated that he could not remember whether he told the police that a motorcyclist was also following him when his statement was recorded. Voluntarily he deposed that he had seen the motorcyclist following him on the day of incident.
74. The record of the police report contains a supplementary statement dated 30.04.2011 of Vipin Singh PW1 under Section 161 of the Cr.P.C. in which he has stated that in his earlier statements he had stated that two autos had blocked his vehicle because at that time he had thought that there were two autos but when the accused persons had forced him into the auto then he had seen one person standing with a motorcycle which had been parked just ahead of his truck. He has stated that it might be possible that some other auto might have also passed the spot.
75. This supplementary statement of Vipin Singh under Section 161 of the Cr.P.C. was recorded on 30.04.2011 after Javed @ Chikna had refused to participate in the TIP and the IO had shown to Vipin Singh his photograph from which he identified Javed @ Chikna to be the person on a motorcycle who had blocked his truck at the time of the incident.
76. PW1 in his testimony before the Court has not at all made any clarification as contained in his supplementary statement dated 30.04.2011. On the other hand, PW1 has maintained that it was two autos / TSR which had overtaken and blocked his truck. This is not a State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 46/50 case where PW1 will not know the difference between an auto / TSR and a motorcycle as he is a driver by profession. On the other hand, the supplementary statement dated 30.04.2011 reveals that he did know the difference between the two.
77. Hence for the reasons recorded above, in the opinion of this Court, the prosecution has been able to prove beyond any reasonable doubt that it was Mohd. Nazir @ Nanha, Shanu @ Kasim, Anwar Hussain, Sattar Ahmed and Laxman Singh who had looted Vipin Singh in the night of 04.03.2011.
78. However as far as accused Javed @ Chikna is concerned, there is a doubt about his involvement in the incident. Therefore while Javed @ Chikna is given the benefit of doubt, the involvement of Mohd. Nazir @ Nanha, Shanu @ Kasim, Anwar Hussain, Sattar Ahmed in the incident of loot stands proved beyond any reasonable doubt.
OFFENCE UNDER SECTION 120B OF THE IPC
79. The allegations in this case are that Mohd. Nazir @ Nanha, Shanu @ Kasim, Anwar Hussain @ Raju @ Bechain, Sattar Ahmed, Laxman Singh @ Sonu, Javed @ Chikna and Mumtaz conspired together to carry out the loot of the vehicle of the complainant and thereafter to conceal it in a warehouse / godown in Indirapuram, Ghaziabad. The prosecution has been able to prove that it was Mohd. Nazir @ Nanha, Shanu @ Kasim, Anwar Hussain @ Raju @ Bechain, Sattar Ahmed and Laxman Singh @ Sonu had carried out the loot of the said truck. Thereafter the truck was taken to Indirapuram and unloaded in a godown in the presence of Mumtaz who had taken the said godown on lease. The goods were recovered at the instance of Mohd. Nazir @ State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 47/50 Nanha, Shanu @ Kasim and Anwar Hussain. The TSR used in the incident belonged to the husband of Mumtaz from whom it was recovered.
80. The element of conspiracy is meeting of minds. Direct evidence of conspiracy is rarely available and has to be inferred from the circumstances and facts proved against the conspirators. Laws of evidence are loosened when it comes to raising inferences about the existence of a conspiracy.
81. The fact that Mohd. Nazir @ Nanha, Shanu @ Kasim, Anwar Hussain @ Raju @ Bechain, Sattar Ahmed and Laxman Singh @ Sonu together carried out the loot of the truck of the complainant and that they had stored it at the godown of Mumtaz in her presence very clearly raises an inference of the existence of a conspiracy between the said persons to carry out loot of a vehicle and thereafter to store / conceal the proceeds of the loot.
82. Therefore Mohd. Nazir @ Nanha, Shanu @ Kasim, Anwar Hussain @ Raju @ Bechain, Sattar Ahmed, Laxman Singh @ Sonu and Mumtaz are convicted for the offence punishable under Section 120 B of the IPC.
OFFENCE UNDER SECTIONS 397 AND 395 OF THE IPC BOTH READ WITH 120B IPC
83. The loot of the truck driven by Vipin Singh in the night of 04.03.2011 by Mohd. Nazir @ Nanha, Shanu @ Kasim, Anwar Hussain @ Raju @ Bechain, Sattar Ahmed and Laxman Singh @ Sonu stands proved. Dacoity is defined under Section 391 of the IPC as commission State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 48/50 of robbery by five or more persons. The same stands proved in this case. Therefore all the above five accused persons are convicted for the offence punishable under Section 395 of the IPC.
84. Section 397 of the IPC prescribes for enhanced punishment if at the time of commission of dacoity, the offender uses any deadly weapon. It had been submitted that no weapon of offence was recovered and thus section 397 IPC could not be attracted. It is to be kept in mind that PW1 has clearly identified the accused persons Anwar Hussain and Mohd. Nazir and has ascribed specific roles to them. Mere non-recovery of the weapon used in the incident would thus be of no consequence.
85. From the testimony of PW1, it stands proved that Anwar Hussain had used a katta / country made weapon and Mohd. Nazir had used a knife to threaten PW1 at the time of the incident of dacoity. Hence, the offence punishable under Section 397 of the IPC stands attracted qua Anwar Hussain and Mohd. Nazir.
ALTERNATIVE CHARGE FRAMED UNDER SECTION 412 OF THE IPC AGAINST ANWAR HUSSAIN, MOHD. NAZIR AND SHANU @ KASIM
86. An alternative charge had been framed against these accused persons for the offence under Section 412 of the IPC. However since they have been convicted for the offenes under Sections 395 / 397 of the IPC, the charge framed for the offence under Section 412 of the IPC is now redundant.
CONCLUSION
87. The net result of the above discussion is as under:-
State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 49/50
(a) Accused Mohd. Nazir @ Nanha, Shanu @ Kasim,
Anwar Hussain @ Raju @ Bechain, Sattar Ahmed, Laxman Singh @ Sonu and Mumtaz are convicted for the offence punishable under Section 120B of the IPC.
(b) Accused Mohd. Nazir @ Nanha, Shanu @ Kasim, Anwar Hussain @ Raju @ Bechain, Sattar Ahmed and Laxman Singh @ Sonu are convicted for the offence punishable under Section 395 of the IPC.
(c) Accused Anwar Hussain and Mohd. Nazir @ Nanha are convicted for the offence punishable under Section 397 of the IPC.
(d) Accused Javed @ Chikna is acquitted for all the charges framed against him.
Announced in the open Court (REETESH SINGH) on 28th July, 2016 ASJ-02/FTC, PHC/NDD 28.07.2016 State vs. Mohd. Nazir @ Nanha & Ors.
FIR No. 24 of 2011, PS: Special Cell 50/50