Delhi District Court
Jora Singh vs State Of Nct Of Delhi on 15 April, 2021
Crl. Revision No. 98/2019
IN THE COURT OF MS. SMITA GARG,
ADDITIONAL SESSIONS JUDGE-03, NORTH DISTRICT,
ROHINI COURTS, DELHI.
Crl. Revision No. 98/2019
CNR No. DLNT01-004441-2019
In re:
Jora Singh
S/o Late Sh. Suraj Bhan
R/o Village Shahpur, P.S-Sadar Bahadurgarh,
District Jhajhar, Haryana
........Petitioner/Revisionist
Versus
State of NCT of Delhi
.......Respondent
Date of institution of petition : 14.05.2019
Date of hearing arguments : 31.03.2021
Date of pronouncement of judgment : 15.04.2021
JUDGMENT:
1. This revision petition under Section 397 of Code of Criminal Procedure is directed against the order on charge dated 19.02.2019 passed by the Ld. MM (North), Rohini Courts, Delhi in State case titled as 'State v. Silak Ram @ Dhillu & Ors.' arising out of FIR No. 164/2011 P.S Bawana whereby it was held that there is sufficient material on record to try the petitioner for the commission of offences punishable under Section 392/120B IPC and Jora Singh v. State Page No. 1 of 12 Crl. Revision No. 98/2019 the formal charge framed against him on 15.04.2019 for the said offences.
2. The brief background relevant for the disposal of the revision petition is as under:
2.1 Instant FIR No. 164/2011 was registered on 09.05.2011 on the basis of DD No. 35A dated 07.05.2011, which had been recorded on receipt of information regarding the robbery of mobile phone and cash amount of Rs. 3 lac at the point of pistol from the caller by two motorcycle riders on Nangal road, Bawana. Investigation of the case was assigned to SI Randhir Singh. On 05.12.2011, information was received by him that the co-accused Silak Ram, who had been apprehended by Special Staff, Outer District with a bag containing cash amount of Rs. 2,09,000/- in Kalandra No. 24B dated 05.12.2011 under Section 41.1(d)/102 CrPC, had confessed regarding his involvement in the robbery in question. The said co-
accused was arrested in the case. His disclosure statement was recorded wherein he revealed that he was employed as driver with ACF company, Bahadurgarh, Haryana and used to bring cash from the customers of the company after delivering the goods and that he had conspired with his brother Jora Singh (i.e the petitioner herein) and one Mukesh @ Dhandhu, to stage a fake robbery of the money belonging his employer so that nobody would suspect his involvement. He further disclosed that in furtherance of the Jora Singh v. State Page No. 2 of 12 Crl. Revision No. 98/2019 said conspiracy, when he alongwith the helper Dharmender was returning from Panipat in the tempo on 07.05.2011 with the cash amount of Rs. 3 lac, his brother Jora Singh and Mukesh@ Dhandhu came on a motorcycle and committed the robbery in question. Thereafter, on 18.12.2011, IO received the information from P.S Sadar, Bahadurgarh that Jora Singh (i.e. the petitioner herein) had been arrested in FIR No. 521/2011 dated 17.12.2011 U/s 25/54/59 Arms Act for possessing a country made pistol and that he had confessed his involvement in the robbery in question. On 19.12.2011, he was formally arrested in the instant case and his disclosure statement was also recorded.
On 17.01.2012, test identification proceeding of the bag recovered from the co-accused Silak Ram was conducted. Sh. Mahesh Kumar Garg (i.e. the employer of the co-accused Silak Ram) identified the bag. The bag as well as the currency recovered in it were released to him. Since the co-accused Mukesh was not traceable, charge sheet against the petitioner and co-accused Silak Ram for the commission of offences punishable under Sections 392/408/411/34 IPC and 25/54/59 Arms Act was filed on 03.02.2012.
2.2 On 30.03.2012, IO moved an application seeking to obtain the fingerprints of the petitioner for the purpose of their comparison with the chance prints lifted from the tempo. Vide order dated 27.04.2012, the said application was Jora Singh v. State Page No. 3 of 12 Crl. Revision No. 98/2019 allowed by the court. On 19.07.2012, report of Finger Print Bureau, Delhi was filed wherein it was opined that the change prints lifted from the spot did not match with the finger prints of the petitioner.
2.3 On 22.01.2015, supplementary charge sheet qua the co-
accused Mukesh @ Dhandhu, who could not be arrested and had been declared absconded, was filed.
2.4 Vide order dated 19.02.2019, the Ld. MM opined that while the charge for the commission of offences punishable under Section 408/411/120B IPC was made out against the co-accused Silak Ram, the petitioner is to be tried for the commission of offences punishable under Section 392/120B IPC. The petitioner was, however, discharged of the offences punishable under Section 411 IPC and Section 25 Arms Act. The relevant portion of the order containing observations qua the petitioner is reproduced as under:-
"A perusal of the record reveals that apart from the recovery of the firearm allegedly used in offence, nothing else incriminating has been recovered from the accused Jora Singh. However, this per se does not entitle the said accused to be discharged at this stage as the material witness Dharmender had seen the offence taking place and without giving an opportunity to the prosecution to show the accused Jora Singh to said Dharmender during trial it would be unjustified to discharge the said accused. In view of this court if the accused Jora Singh is discharged at this stage the prosecution would be deprived of the opportunity to question the eye witness regarding the identity of the said accused Jora Singh. The submission of the Ld. Jora Singh v. State Page No. 4 of 12 Crl. Revision No. 98/2019 Defence counsel that the judicial TIP of the said accused was not conducted and as such he be discharged fails to find an appeal with this court as conducting judicial TIP is not a legal prerequisite for proceedings in a criminal case when the eyewitness has already been cited in the list of the witnesses. Similarly the non matching of the fingerprints and IO not obtaining the CDRs of the said accused is also not sufficient at this stage to order discharge of the accused when the prosecution has an eye witness of the incident. Accordingly, there is sufficient material to proceed against the accused Jora Singh for the offence punishable u/s 392 IPC. However, no part of the stolen property has been recovered from the said accused thus he is entitled to be discharged for the offence punishable u/s 411 IPC. In addition thereto in view of his acquittal of the charge that he was found in possession of the illegal firearm used in the commission of the instant offence vide judgment dated 02.06.2017 of the Ld. JMIC Bahadurgarh, it would be unjustified and contrary to law to try him for the same offence again. Accordingly, the accused Jora Singh is also discharged for the offence u/s 25 Arms Act."
On 15.04.2019, formal charges were framed against the petitioner and the co-accused Silak Ram. Aggrieved therefrom, the petitioner has approached this court.
3. I have heard the counsel for the petitioner as well as APP for State. Trial court record has also been perused.
4. The counsel for the petitioner has assailed the impugned order by contending that the only incriminating substance which the prosecution could bring on record against the petitioner is the disclosure statement of the petitioner and the disclosure statement of the co-accused Silak Ram and since the said disclosure statements did not lead to any Jora Singh v. State Page No. 5 of 12 Crl. Revision No. 98/2019 recovery or discovery of fact, both the statements were immaterial and could not have been taken into consideration. He argued that the Ld. MM also failed to appreciate that neither the TIP of the petitioner was got conducted through the eye witness Dharmender nor recovery of any part of robbed money and mobile phone or motorcycle used in the commission of crime had been effected from the petitioner. He urged that the trial court also overlooked the fact that the petitioner had been acquitted in FIR No. 521/2011 U/s 25/54/59 Arms Act P.S. Sadar Bahadurgarh and that as per the report of Finger Print Bureau, the finger prints of the petitioner had not matched with the change prints lifted from the spot. He argued that since the trial court fell in error in observing that there is sufficient material on record to frame charge for the offence under Section 392/120B IPC against the petitioner, the impugned orders to be set aside and the petitioner be discharged in the case.
5. Per contra, APP for the State submitted that in view of disclosure statements of the co-accused Silak Ram and the petitioner coupled with the recovery of firearm used in commission of robbery from the petitioner, Ld. MM rightly observed that there is sufficient material on record to frame charge for the offence under Section 392/120B IPC against the petitioner. He argued that there is no Jora Singh v. State Page No. 6 of 12 Crl. Revision No. 98/2019 infirmity or illegality in the order passed by the Ld. MM and therefore, no interference is called for.
6. Section 240 of CrPC provides that the charge can be framed in a warrant trial case if the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence. Section 239 CrPC provides that an accused can be discharged if the Magistrate considers the charge against the accused to be groundless. While discussing the scope and ambit of powers of the courts to be exercised at the stage of charge, the Hon'ble Apex Court in Union of India v. Prafulla Kumar Samal & Ors., AIR 1979 SC 366 enumerated the following principles:
i) That the Judge while considering the question of framing the charges has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out;
ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial;
iii) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused; and
iv) That in exercising his jurisdiction, the Court can not act merely as a Post-Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the Jora Singh v. State Page No. 7 of 12 Crl. Revision No. 98/2019 documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
7. Strong suspicion and ground for presumption can be raised only on the legally admissible evidence. Thus, the first and the foremost test is whether the evidence on which the prosecution is relying upon is admissible or not. If the prima facie case is appearing on the basis of evidence which is not admissible in law, then the charges cannot be framed against the accused on such material.
8. In the case on hand, FIR was registered on the basis of DD No. 35A regarding the robbery received at P.S Bawana on 07.05.2011. The petitioner was not named in the FIR. His role surfaced on the basis of disclosure statement made by the co-accused Silak Ram. Thereafter, the disclosure statement was also made by the petitioner after his arrest. Thus, the prosecution has primarily relied upon the said disclosure statements against the petitioner.
9. Qua the disclosure statement of the petitioner, there is no gain saying that the same is completely inadmissible under Section 25 of the Indian Evidence Act, which provides that no confession made to a police officer shall be proved as Jora Singh v. State Page No. 8 of 12 Crl. Revision No. 98/2019 against a person accused of any offence. Since the alleged recovery of the firearm had already been effected in FIR No. 521/2011 under Section 25/54/59 Arms Act P.S- Sadar Bahadurgarh, Section 27 of the Indian Evidence Act would also not come into operation.
10. As far as the disclosure statement of the co-accused Silak Ram is concerned, the question which arises is how far and in what way the same can be used against the petitioner. In this regard, it would be apposite to refer to the landmark case of Bhuboni Sahu v. The King AIR 1947 PC 257 wherein it was observed by the Privy Council that the confession of co-accused does not come within the definition of 'evidence' contained in Section 3 of the Evidence Act as such confession is not recorded on oath, nor it is given in presence of the accused, and nor it can be tested by cross examination. It was also pointed out that the confession of a co-accused is evidence of a very weak type and it is much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. It was held that such confession cannot be made tile foundation of a conviction and can only be used in 'support of other evidence'.
Following the law laid down in Bhuboni Sahu's case, the Hon'ble Apex Court, while considering the question as to how a confession can be used in 'support of other Jora Singh v. State Page No. 9 of 12 Crl. Revision No. 98/2019 evidence', stated the legal position in Kashmira Singh v. State of MP AIR 1952 SC 159 as under:
"...The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept..."
In the backdrop of above legal position, it is germane to consider as to what independent incriminating evidence is available on record against the petitioner. As mentioned earlier, the petitioner was named in the FIR. He was also not apprehended from the spot at the time of incident. No recovery either of the robbed bag and the money or the vehicle used in commission of offence was effected from him. Apart from the fact that the petitioner had been acquitted in FIR No. 521/2011 under Section 25/54/59 Arms Act P.S. Sadar by the competent court of law for the alleged possession of the firearm, nothing has been brought on record by the prosecution to show that the said weapon was the same which had been used in the commission of robbery in the present case. Further, as per the report of Finger Print Bureau, the finger prints of the petitioner had also not matched with the chance prints Jora Singh v. State Page No. 10 of 12 Crl. Revision No. 98/2019 lifted from the spot. Out of all the witnesses cited by the prosecution, the only witness who could have identified and deposed regarding the involvement of the petitioner in commission of the robbery in question is the eye witness Sh. Dharmender, who was accompanying the co-accused Silak Ram as helper in the tempo on the date of incident. TIP of the petitioner through the said eye witness was not arranged by the investigating agency and rightly so, as he had categorically stated in his statement dated 09.05.2011 recorded under Section 161 CrPC that he was not in the position to identify the robbers because their faces were covered. The sole premise on which the Ld. MM directed for framing of charge against the petitioner is that the prosecution cannot be deprived of the opportunity to question the said eye witness regarding the identity of the petitioner. It needs little emphasis that the view taken by the Ld. MM is completely erroneous as the eye witness has already expressed his inability to identify the robbers. In the absence of any independent incriminating evidence available on record against the petitioner, charge could not have been framed against him merely on the basis of disclosure statement of the co-accused Silak Ram.
11. For the foregoing reasons, the revision petition is allowed and the impugned orders dated 19.02.2019 and 15.04.2019 passed by the Ld. MM qua the petitioner are set aside.
Jora Singh v. State Page No. 11 of 12 Crl. Revision No. 98/2019Resultantly, the petitioner is discharged of the offences alleged against him. He shall appear before the Ld. MM and furnish the bail bond under Section 437A CrPC on 19.04.2021.
12. File of the revision petition be consigned to record room.
SMITA Digitally signed by
SMITA GARG
GARG Date: 2021.04.15
12:53:43 +05'30'
Announced on 15.04.2021 (Smita Garg)
Addl. Sessions Judge-3,
North District, Rohini Courts,
Delhi
Jora Singh v. State Page No. 12 of 12