Delhi District Court
State vs Sanjay on 20 October, 2023
IN THE COURT OF MS. SHELLY ARORA
ADDITIONAL SESSIONS JUDGE05/EAST
KARKARDOOMA COURTS, DELHI
SC No.1632/2016
FIR No.453/2007
PS Krishna Nagar
U/s 392/395/412/34 IPC & 25 of Arms Act
CNR No.DLET010002862008
STATE
VERSUS
1. Sanjay
S/o Sh. Jagdish @ Jaggi
R/o H. No. 242, Gali No. 2, Village Ghondli,
Krishna Nagar, Delhi
2. Aadesh
S/o Sh. Hari Chand
R/o H. No. 104, Gali No.8,
East Azad Nagar, Delhi
3. Neeraj
S/o Sh. Amla Chand
R/o H. No. 43/44, New Layalpur,
Krishna Nagar, Delhi.
SC No.632/2016 State vs Sanjay & Ors 1 of 54
4. Sonu
S/o Sh. Mohan Lal,
R/o Jhuggi No. A782,
Gali No.3, Rani Garden,
Geeta Colony, Delhi.
5. Manish Yadav
S/o Sh. Om Prakash
R/o H. No. 6/22, Krishna Nagar,
Delhi.
Date of institution : 25.04.2008
Date of Reserving judgment : 12.10.2023
Date of Pronouncement : 20.10.2023
Decision : Acquitted
JUDGMENT
1. Accused persons namely Sanjay, Aadesh, Neeraj, Sonu and Manish Yadav have been facing trial on the allegations that they, armed with dangerous weapons, committed dacoity at the residence of complainant and thereby committed offences punishable under Section 395 read with Section 34 IPC, 397 read with Section 34 IPC, 412 IPC and 25/54/59 Arms Act.
SC No.632/2016 State vs Sanjay & Ors 2 of 54 BRIEF FACTS OF THE PROSECUTION CASE
2. On 24.09.2007, at about 2.00 AM at the residence of complainant Sh. Pankaj Goel, bearing house no. 19, Shashtri Park, Chander Nagar, Delhi, while Smt. Murti Devi, mother of Pankaj Goel alongwith 8 years old daughter of complainant were asleep in one of the room and complainant Pankaj alongwith his wife, his five year old son and his brother-in-law Rajesh Kumar in the other room, four masked persons allegedly entered in their house, armed with knives, kattas and pistols, robbed gold articles of his wife and his mother, cash of Rs.25,000/- as well as mobile phone of his brother in law make Sony Ericsson and fled away. Complainant filed a complaint in this respect, which was received vide DD no. 5A dated 24.09.2007, at 3.55 AM upon which present case FIR bearing no. 453/07 was got registered. The allegations in the FIR were investigated into. Accused persons namely Sanjay and Adesh were arrested on 26.09.2007 on the basis of description told by complainant, who made disclosures qua commission of offence as well as recovery of robbed articles, and led police party to apprehend other co-accused persons namely Manish and Neeraj who also made disclosure statement and got recovered some robbed articles. Fifth accused Sonu was arrested by ASI Khushi Ram on 27.09.2007, who also made disclosure statement qua his participation with the other accused persons in the alleged commission of offence and a Katta SC No.632/2016 State vs Sanjay & Ors 3 of 54 allegedly used as weapon of offence alongwith few robbed articles were recovered at his instance. TIP of recovered jewellery/articles was got conducted which were duly identified by wife and mother of complainant and were subsequently released on Superdari. All the above mentioned accused persons were charge sheeted for commission of offence punishable under Section 392/395/412 IPC and 25 / 54/59 Arms Act. Charge sheet was filed in court on 21.02.2008 and was committed to Sessions Court for trial vide order dated 19.04.2008 passed by Ld. MM.
CHARGE
3. Charges for commission of following offences were respectively framed against the accused persons as mentioned bellow:-
(a) Accused Sanjay has been charged for offence punishable under Section 395 r/w 34 IPC, under Section 397 r/w 34 IPC, under Section 412 IPC and under Section 25/54/59 Arms Act.
(a) Adesh has been charged for offence punishable under Section 395 r/w 34 IPC and under Section 397 r/w 34 IPC and also charged for committed an offence under Section 412 IPC.
(b) Neeraj has been charged for offence punishable under Section 395 r/w 34 IPC and under Section 397 r/w 34 IPC and also charged for committed an offence under Section 412 IPC.
SC No.632/2016 State vs Sanjay & Ors 4 of 54
(c) Sonu has been charged for offence punishable under Section
395 r/w 34 IPC and under Section 397 r/w 34 IPC and also charged for committed an offence under Section 412 IPC.
(d) Manish yadav has been charged for offence punishable under Section 395 r/w 34 IPC and under Section 397 r/w 34 IPC and also charged for committed an offence under Section 412 IPC.
PROSECUTION EVIDENCE
4. In order to prove its case, the prosecution has examined as many as following 17 witnesses.
5. PW-1 Smt. Anu Goel, wife of complainant Sh. Pankaj Goel deposed that in the intervening night of 23.09.2007 and 24.09.2007 at about 01.30 to 2 AM, she along with her husband, her brother and her son were in one room of their house while her mother in law along with her daughter were sleeping in another room of his house. She further deposed that about 3-4 persons in muffled face entered the room and demanded cash, jewelery from them. She testified having handed over cash of about Rs.20,000-25,000/- and jewelery containing four bangles, one chain, one pair of ear rings and one ring to the assailants while they also took away four bangles, one chain and one or two rings from her mother in law. She stated that she did not remember as to whether accused persons were armed with weapons or not. She also stated that the gold articles and cash were kept by them in a pillow cover. She stated that PCR call was made and the SC No.632/2016 State vs Sanjay & Ors 5 of 54 statements were recorded by the police on next day. She also deposed to have identified the recovered articles during the TIP proceedings and got them released on superdari. She identified her signatures on TIP proceedings Ex.PW1/A and also identified the gold articles as Ex.P-1. She also identified pillow cover having yellow and blue color print as Ex.P-2.
6. PW2 Pankaj Goel (complainant) also deposed on the same lines as deposed to by PW-1 with respect to the occurrence in question. He also stated that he could not state with certainty that the accused persons present in the court were the robbers, however, he acknowledged that two of the accused persons namely Sanjay and Adesh were his neighbours and that he was acquainted with them prior to the incident but he was not sure as to whether he was amongst those robbers, who had committed the offence. He proved superdarinama Ex.PW2/B vide which two gold chains, six gold bangles and one gold ring, and Rs.13,400/- in cash were released to him. He also produced and identified one gold chain, four gold bangles, two gold earrings and one gold ring as Ex.P-1 (colly). He also stated that one chain after being released on superdari was snatched away on 12.02.2011 qua which FIR was lodged. He stated that he was unable to identify the pillow cover produced in unsealed condition. He identified two gold bangles belonging to his mother, which were released to her on superdarinama as Ex.P5.
SC No.632/2016 State vs Sanjay & Ors 6 of 54
7. PW3 is SI Ram Prakash who got the FIR registered on the basis of Rukka and proved the same as Ex.PW3/B, whereas endorsement on Rukka is Ex.PW3/A.
8. PW4 is Smt. Moorty Devi, who deposed that she had witnessed four persons wearing face masks in the intervening night of 23/ 24 September, 2007 at about 2 AM, upon hearing the door bell, who asked her daughter-in-law and herself to give away the jewelery articles and cash available in the house to them. She stated that the boys forcibly took gold bangles from her hand and also snatched her chain made of gold and tulsi beadings. She testified that one of the boys had tamancha and the other had a weapon like kulhadi whereas she was unable to tell the description of weapons in the hands of other boys. She also stated that accused persons had taped the mouth of her daughter-in-law and also tied her hand during the incident. She also stated that she suffered a minor cut in her left thumb, which was bleeding to which one of the assailant remarked "sanjay budiya ko chod do". She further stated that she was unable to identify those boys as their faces were covered. She also stated that she was unable to state anything further about accused Sanjay. She produced and identified the gold bangles as Ex.P-5 and gold chain with Tulsi beadings as Ex.P-6.
9. PW5 is Constable Satya Prakash, who stated that members of the crime team had inspected the crime site and had taken photographs of the first floor, which photographs were Ex.PW5/1 to Ex.PW5/3 SC No.632/2016 State vs Sanjay & Ors 7 of 54 and negatives thereof were Ex.PW5/1A to Ex.PW5/3C.
10.PW-6 is Sh. Raj Kumar, the then Additional District & Session Judge, Tis Hazari, proved TIP proceedings of recovered robbed articles as Ex.PW6/A and certificate regarding correctness of proceedings as Ex.PW6/B.
11. PW-7 is Head Constable Mahesh, who deposed that he was posted with the crime team and inspected the crime scene. He deposed that he tried to lift the finger prints or chance prints but any of those could not be found at the spot and prepared report and handed over to IO, however that report was not found to be available on record.
12.PW-8 is Head Constable Ajay Pal deposed that he joined investigation on 26.09.2007 when accused Neeraj and Manish were apprehended at pointing out of accused Sanjay and accused Aadesh. Accused Neeraj got recovered one chain and Rs.4,400/-, whereas accused Manish got recovered two Kangans and Rs.4,000/-. He proved arrest memo of accused Neeraj and Manish as Exs.PW8/F and PW8/G and their personal search memo as Ex.PW8/H and Ex.PW8/I.
13.PW-9 is HC Om Prakash Singh deposed on the similar facts of 26.09.2007 as deposed by PW-8 HC Ajay Pal. His deposition is not being repeated herein for the sake of brevity.
He further deposed that he again joined the investigation on 27.09.2007 when accused Sonu was apprehended SC No.632/2016 State vs Sanjay & Ors 8 of 54 and arrested at the instance of accused Sanjay and one Desi Katta, one ring and two ear rings were got recovered. He proved seizure memo as Ex.PW9/A. He further deposed that accused Sanjay also got recovered one pillow cover and proved seizure memo as Ex.PW9/D and memo of arrest of accused Sonu as Ex.PW9/B and his personal search memo as Ex.PW9/C.
14.PW-10 is HC Vijender Kumar, who deposed that he was part of investigation team led by SI Rajiv Kumar, whereby accused Sanjay and Aadesh, upon pointing out of secret informer, were apprehended vide arrest memos Ex.PW10/A and Ex.PW10/B and their personal search was conducted vide personal search memos Ex.PW10/C and Ex.PW10/D. He also deposed that disclosure statement of accused Sanjay Ex.PW10/E and that of accused Adesh Ex.PW10/F were recorded. He also deposed that a brown purse with amount of Rs.5000/- was also recovered from the right pocket of pant, which was seized vide seizure memo Ex.PW10/H, whereas one broken chain was recovered from possession of accused Adesh, which was sealed and seized vide seizure memo Ex.PW10/G. He then deposed that place of incident was pointed out by both the accused persons vide pointing out memo Ex.PW10/I .
He also deposed that accused Sanjay and Adesh got recovered one polythene containing two chhurri (knives) and four black color clothes masks and proved seizure memo as Ex.PW10/L SC No.632/2016 State vs Sanjay & Ors 9 of 54 and sketches of the knives as Ex.PW10/J and Ex.PW10/K.
15.PW11 is HC Jaipal Singh, who testified on same lines as deposed by PW8 and PW15 and proved the same documents. He witnessed recovery of Kangans and Rs.4,000/- at the instance of accused Manish.
16.PW12 is SI Rajeev Kumar, who deposed similar facts as deposed to by PW10 and proved the same documents.
17.PW-13 is HC Sudhir, who also deposed similarly as deposed to by PW10.
18.PW14 is ASI Madan Singh proved entry of seized articles in Register No.19 in Malkhana as Ex.PW14/A.
19.PW15 is Retired SI Khushi Ram, who deposed that DD no. 4 A was marked to him at about 2 AM on 24.07.2007, which he proved as Ex.PW15/A. He deposed to have recorded statement of complainant Pankaj Goel as Ex.PW2/A bearing his signature at point B, upon which rukka was prepared which bears his signature at point A and proved as Ex.PW15/B, for the registration of the FIR. He deposed that he called the crime team at the spot but any chance prints could not be detected. He deposed to have prepared a site plan at the instance of complainant which is Ex.PW15/C. He further stated that statement of Smt. Moorty Devi and Smt. Anu Goel was recorded under Section 161 CrPC.
SC No.632/2016 State vs Sanjay & Ors 10 of 54 PW-15 further deposed that SI Rajeev produced the accused persons namely Sanjay and Adesh on 26.07.2007 at about 9 PM and also got recovered part case property of this case from them which was deposited in Malkhana.
He also deposed to have later apprehended accused Neeraj and Manish, who got recovered gold chain and Rs.4,400/- and two bold bangles and cash of Rs.4,000/-. He also testified to have recorded disclosure statement of accused Sonu and proved the same as Ex.PW15/D and his arrest memo as Ex.PW9/B and personal search memo as Ex.PW9/C and got recovered one gold chain and two gold ear rings alongwith one desi katta at the instance of accused Sonu.
20.PW16 HC Shivender Kumar deposed that on 25.08.2008, he collected two sealed pullandas and on 26.08.2008, he deposited the same in CFSL, Chandigarh. He proved the Road Certificate as Ex.PW14/D.
21.PW-17 Dr. O.P. Mishra deposed that he accorded sanction for prosecution of the accused. He proved the sanction given by him as Ex PW17/A and the ballistic report as Ex. PW17/B.
22.Thereafter, prosecution evidence was closed vide order dated 25.10.2018 and matter was listed for recording statements of accused persons U/s 313 Cr.P.C.
SC No.632/2016 State vs Sanjay & Ors 11 of 54 STATEMENT OF ACCUSED U/S 313 CR.P.C.
23.Accused persons were examined under Section 313 Cr.P.C wherein incriminating material appearing in evidence against them was put to accused persons to which they respectively responded as under:-
(a) Accused Adesh stated that nothing was recovered from them or in his presence. He also stated that nothing was recovered at his instance and that a totally false case has been thrusted upon them at the behest of IO. He claimed that the recovery alleged against them has been planted and the police witnesses produced as prosecution witnesses have deposed against them only on the behest of investigation officers.
(b) Accused Manish Yadav stated that nothing was recovered from them and articles were planted against them. He stated that he was not arrested on the instance of Sanjay or Neeraj as he was picked from his house by the IO and IO prepared false documents in the police station. He also stated that he never made any disclosure statement and he never pointed out any place of incident and the documents were prepared by IO in the police station.
(c) Accused Sonu stated that police never visited his jhuggi and nothing was recovered at his instance or from his jhuggi. He stated that he is innocent and he has been falsely implicated in this case. He also that recovery has been planted upon him and this is a false case.
SC No.632/2016 State vs Sanjay & Ors 12 of 54
(d) Accused Sanjay stated that recovery has been planted by the
police officials and witnesses have deposed against him as they are inimical to him since he is living in the same mohalla. He also stated that he is innocent and he has been falsely implicated by the complainant as well as police in connivance with each other.
(d) Accused Neeraj stated that he was arrested from his house on 26.07.2007 and nothing was recovered from him or from his house.
He stated that this is a false case and recovery has been planted by police officials upon him.
24.Accused persons opted not to lead any evidence in their defence. Accordingly, opportunity to lead defence evidence was closed and matter was posted for final arguments.
ARGUMENTS
25.Final arguments were advanced by Ld. Addl. PP as well as Ld. Defence Counsel at length.
26.Addl. PP for the State argued that all the prosecution witnesses have duly supported the prosecution version. He argued that credibility of police witnesses cannot be doubted even if no independent witness for recovery has been joined. He further submitted that the witnesses are consistent in their version and have been crossexamined in detail by the counsels for accused persons who have not been able to cull out any major contradictions in their testimonies. Ld. Addl. PP also SC No.632/2016 State vs Sanjay & Ors 13 of 54 argued that minor inconsistencies cannot discredit the prosecution version, rather these render the testimony more natural and credit worthy. He has argued that the recovery of robbed articles has been duly proved while the accused persons were first arrested as per the statements of complainant and his family members who then led the police to other accused persons from whose possession even the recovery of robbed jewelery articles was made. He also stated that these articles have been duly identified in TIP and released upon superdari, so there is no dispute in the identification of the recovered articles. It is stated that the recovered articles as well as the accused persons have been duly identified by the prosecution witnesses and thus, the prosecution case has been proved against the accused persons beyond all reasonable doubt and therefore, the accused persons ought to be convicted.
27.Ld. Counsel for accused Sonu, Neeraj, and Sanjay raised doubts upon the identification of the jewelery articles by PW Ms. Arti Goyal and PW Murti Devi during TIP proceedings. It is further argued that there are material contradictions in the depositions of police witnesses in respect to both recovery of robbed articles and weapon of offence as well as arrest of accused persons. It is argued that the prosecution is under a bounden duty to prove alleged facts beyond all reasonable doubts on the basis of clinching evidence but prosecution has utterly failed in its duty. It is argued that there is SC No.632/2016 State vs Sanjay & Ors 14 of 54 absolutely no mention of any DD entry in the entire proceedings and any family member or any independent public witness has not been joined at any stage by the Investigating Officer concerned, in utter violation of the provisions of Section 103 and 104 Cr.P.C, rendering the entire recovery proceedings very doubtful. It is argued that no handing over memo or returning memo of the seal has been made at any stage which shows that the accused persons. Ld. Counsel has also filed written arguments and placed reliance upon certain judgments reported as (i) Rattan Lal Vs. State Crl. Appeal No. 111 of 1986 passed by Hon'ble Delhi High Court (ii) Gorachandra Khilla alias Baragudia Mali Vs. State of Orissa Crl. Appeal No. 244 of 1983 passed by Hon'ble Orissa High Court (iii) Ritesh Chakravarti Vs. State of Madhya Pradesh Crl. Appeal No. 1016 of 2006 passed by Hon'ble Apex Court (iv) Sunil Chander Vs. State of U.T., Chandigarh and another Crl. Misc. No. 26786M of 2005 passed by Hon'ble Punjab and Haryana High Court (v) Narsi Vs. State of Haryana Crl. Appeal No. 145 of 1998 passed by Hon'ble Apex Court
(vi) Harbans Lal Vs. State of Haryana Crl. Appeal No. 153 of 1980 passed by Hon'ble Apex Court and (vii) Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC) passed by Hon'ble Delhi High Court. Copy of Punjab Police Rules, 1934 (Vol. III) has also been filed. Ld. Counsel for accused Manish Yadav and Aadesh relied upon the cases of Bhure Khan Vs. State of MP : AIR 1982 SC 948.
SC No.632/2016 State vs Sanjay & Ors 15 of 54
ANALYSIS
28.All the accused persons facing trial have been primarily charged for commission of offence of dacoity punishable U/s 395/34 IPC with usage of dangerous weapons for such commission, punishable U/s 397/34 IPC. Section 395 IPC prescribes punishment for dacoity whereas dacoity has been defined U/s 391 IPC.
29.Dacoity as an offence is basically Robbery conjointly committed or aided or attempted by five or more persons. Section 391 IPC is reproduced hereunder for ready reference:
"391. Dacoity.--When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity"."
30.All robberies in turn either can be categorized into theft or extortion. Robbery is thus only an aggravated form of theft or extortion. The aggravation is in the form of use of violence in the course of theft or extortion. Theft would qualify as robbery whereby victim is either put in fear or attempted to or either caused death, hurt or restraint in order to or during course of committing theft or while fleeing away with proceeds. Extortion becomes Robbery when offender is in immediate presence of victim and put him or any other person in fear of instant death, hurt or restraint in order to induce him to deliver property or valuable security. Section 390 IPC is reproduced SC No.632/2016 State vs Sanjay & Ors 16 of 54 hereunder for ready reference :
"Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
31.Theft is dishonesty moving any movable property without consent of person in his possession that thing, whereas extortion is dishonestly inducing the person put in fear of injury to deliver any property or valuable security. Theft has been defined under Section 378 IPC whereas extortion has been defined under Section 383 IPC. For better appreciation of prosecution evidence at hand, Section 378 IPC, Section 383 IPC, are extracted as under:-
"378. Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
"383. Extortion.--Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby SC No.632/2016 State vs Sanjay & Ors 17 of 54 dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion"."
32.The incident which is subject matter of this case happened during intervening night of 24.09.2007 and 25.09.2007 at about 02:00 am. PW1, PW2 and PW4 were all present during said incident and thus were the victim/subjects of the occurrence. These are natural witnesses related to each other as family members who were sleeping/ resting as a matter of routine course at their residence where incident happened. All three have narrated in detail what happened, what was caused and what and how they suffered or were impacted by incident. PW1, PW2 and PW4 have supported the prosecution case as far as happening of incident is concerned, with some omissions or exaggerations or inconsistencies in their description of event. PW1, PW2 and PW4 categorically deposed that few armed persons entered their house around 02:00 am, extended threats, demanded jewelery and whatever cash was available at home, then fled away with robbed articles from the spot. All three witnesses have been cross-examined in detail by respective Counsel of accused persons but none have been able to elicit any contradiction in basic stance of the case. There has been nothing which might put their presence at spot doubtful or any motive attributed to them that they would intentionally testify to stage such an occurrence. PW2 proved the complaint Ex.PW2/A which form the SC No.632/2016 State vs Sanjay & Ors 18 of 54 basis of registration of FIR. There was no delay in informing the incident to police. There are few inconsistencies or contradictions or improvements in the testimony of PW4 Moorti Devi upon her statement U/s 161 Cr.P.C recorded by police which were put to her during cross-examination but those were minor details which do not hit at the root of the case. These inconsistencies do not impinge upon her credibility as a witness or that of her family member. It has to be considered that she was an old lady and her testimony was recorded after about 5 years of the incident itself. There is as such no doubt that she has supported the prosecution case in as much as incident happened and she was compelled to give away her jewellery articles as demanded by robbers, however, on account of several improvements and inconsistencies, same needs thorough sifting and evaluation, specially to rely upon finer details produced by her.
33.To understand or to conclude whether or not the occurrence constituted robbery, it is imperative to examine whether the proven evidence would make up for commission of theft or extortion. While the two have their own specific domains, in the case of Dhananjay vs State of Bihar : (2007) 14 SCC 768, Hon'ble Apex Court has led down distinctions between the two offences as under:-
Theft and extortion. - Extortion is thus distinguished from theft -
(1) Extortion is committed by the wrongful obtaining of consent.
In theft the offender takes without the owner's consent.
SC No.632/2016 State vs Sanjay & Ors 19 of 54 (2) The property obtained by extortion is not limited as in theft to movable property only. Immovable property may be the subject of extortion.
(3) In extortion the property is obtained by intentionally putting a person in fear of injury to that person or to any other, and thereby dishonestly inducing him to part with his property. In theft the element of force does not arise.
34.PW1, PW2 and PW4 were intentionally put to fear of injury to them and their family members because of which they became fearful and unsettled and thus were wrongfully induced out of fear and compelled to part with their valuables to the robbers. There is no evidence that they had allowed these people to enter their house. The place of occurrence is a residential premise used by PW-1, PW2 and PW4 as family members. PW4 did testify that she heard door bell at 02:00 am and to respond to that, she went out but still there cannot be any inference that the offenders were voluntarily allowed inside the residential dwelling place. PW1 did not specify whether intruders were carrying arms or not and if yes, which arms. PW2 on the other hand testified that they were armed with knife like weapons. PW4 instead deposed that one of them carried Tamancha and other Kulhadi. PW4 was also confronted with her statement U/s 161 Cr.P.C recorded by police on the aspect that she never so stated about- such like weapons carried by the intruders. There cannot thus be a straight inference drawn upon reading of evidence of PW1, PW2 or PW4 about the nature of weapon carried by offenders. Common thread of putting dwellers in fear of harm of immediate SC No.632/2016 State vs Sanjay & Ors 20 of 54 death or hurt runs through their testimonies. PW1, PW2 and PW4 are common people and their psyche can well be imagined when armed intruders in the middle of night broke into their house. PW2 stated that they did not raise any alarm. PW1 deposed that she gave away all jewelery and cash upon asking of intruders and she was not even concerned whether any weapon was brandished against them and what conversation was going on amongst the robbers with her entire attention on the safety of her husband and child. There can also be no two views that intruders intentionally put the house dwellers in such a fear to obtain wrongful consent to deliver their belongings without offering any resistance. The ingredients proved with respect to the occurrence in question constitute extortion.
35.Understanding whether that extortion amounted to robbery, the touchstone as laid down in Section 390 IPC is applied. The offenders, at the time of committing the offence were very much in the presence of the house dwellers and put them in fear of instant death or hurt in turn induced them to deliver their valuables as demanded to the offenders. So, the voluntariness of consent was wrongfully vitiated which compelled them to fulfill illegal and forceful demands of offenders as they were put in fear that their loved ones would be hurt or even killed if they would not obey. The articles were delivered eventually to offenders who fled away with the articles. So, the act committed would qualify to be robbery with in the meaning of Section 390 IPC.
SC No.632/2016 State vs Sanjay & Ors 21 of 54
36.PW1 in her testimony stated that 3-4 persons had entered their house. PW2 stated that there were four persons whereas PW4 deposed that few persons were there. It is not the case of the prosecution that apart from ones who covertly entered the house, there were others who was waiting outside or were on the job as part of concerted action for commission of robbery so they could also be taken to be participative of transaction. Therefore, by no stretch of imagination can it be concluded that without doubts, there were at least five persons who conjointly as united action, engaged/ participated with each other for commission of robbery. It is settled that commission of dacoity is not sustained without at least five or more persons. Therefore, the evidence at hand do not lend support to the proposition that there were five or more persons who participated in commission of robbery so that act do not qualify to be Dacoity within the meaning of Section 391 IPC.
37. Section 34 IPC lays that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
38.The substantive offences with which accused persons have been charged with, have been supplemented with Section 34 IPC. Section 34 IPC in essence lays down joint liability for acts committed in furtherance of commonality of intention which means that he be liable for separate acts done by several persons as if he had done all SC No.632/2016 State vs Sanjay & Ors 22 of 54 by himself. It is settled that Section 34 IPC is merely a rule of evidence and comes into vogue when criminal act is committed by more than one person against common intention irrespective of whether one and all have been identified or arrested or convicted. It is however also acknowledged that mere presence with each other would not be sufficient to attract the liability here but sufficiency of evidence that each one knew the likelihood and intended the commission of offending act. Hon'ble Supreme Court in catena of cases laid down two ingredients for application of Section 34 IPC:-
1. Common intention to commit a crime and;
2. Participation by all the accused in the act in furtherance of the common intention.
39.For common intention to be constituted, it is necessary that intention to commit offence must be known to and shared by rest of them. In the case at hand, few persons unauthorizedly made/ broke their way into a dwelling house in the wee hours of night, armed with some weapons, with conscious effort to keep their identities undisclosed being fully masked, with none trying to stop other or acted in variance, with them controlling the house dwellers, demand, induced their subjects to deliver out of fear, collected belongings and fled away. Should intention is inferable from the conduct, there is no doubt that they had preconcerted plan and all of them knew what they wanted to achieve in effect. There seems to be no doubt that they came to forcibly rob by putting dwellers in fear of instant hurt SC No.632/2016 State vs Sanjay & Ors 23 of 54 and did just that. They had all the clarity of what they wanted to achieve and they left just as they met their target. There was no slip at all by any of those intruders. It appears to be a classic case where commonability of their intention can be undoubtedly deciphered in commission of offence. All of them were present for particular duration and together participated from start to end like the commission of offence. Thus, there is no other inference deductible than that the intruders had well thought, conceived and shared plan and all of them acted in pursuance of that plan to achieve what they intended and planned for.
40.There is thus absolute clarity that offenders committed act of robbery in furtherance of their common intention. Meeting of minds is very much evident from the behaviour and conduct of offenders. So commonality of intention as conceived U/s 34 IPC is established beyond doubt.
41.Having discussed the nature of acts as manifested by prosecution evidence, it is now necessary to understand as to whether accused persons facing trial can be held guilty of above stated offence. As already mentioned and noted, PW1, PW2 and PW4 have consistently and categorically maintained in their respective depositions, as also mentioned in complaint/ statement Ex. PW2/A given by complainant Pakaj Goel that the offenders were fully masked and therefore, they were not identifiable by the subjects of crime. Thus, PW1, PW2 and PW4 are mere witnesses to the factum, nature and manner of SC No.632/2016 State vs Sanjay & Ors 24 of 54 commission of offence and not of identification of accused persons as to whether those persons had eventually committed the offence in question. The testimony of PW2 and PW4 need to be sifted on this aspect. On the aspect of identification, PW2 testified that he knew Sanjay and Adesh, out of five accused persons, as they were his neighbours but could not specify as to whether they were amongst the robbers. The extract of his deposition to that extent is reproduced as under:
"... I can not say whether the accused persons present in the court are those robbers."
42.It is important to clarify that there is nothing mentioned in statement/ complaint that he had doubts or he suspects by any act or any talk or any words or any peculiar physical description about involvement of his neighbour Sanjay. PW4 in her deposition stated that her thumb of left hand was hurt during the happening to which one of them asked "Sanjay budiya ko chhod do". She stated that she was neither able to identify nor able to specify any further details about Sanjay. The extracts of her deposition which might throw light on the aspect of identification can be read as under:-
"...One of them asked, Sanjay budhiya to chhod do. I am unable to identify those boys as they had put nakab on their faces. I am unable to tell anything more about accused Sanjay"
43.While PW4 did not divulge complete details as supposedly mentioned by her in statement u/s 161 Cr.P.C, she was also put to cross-examination by Ld. Addl. PP where she denied the suggestion SC No.632/2016 State vs Sanjay & Ors 25 of 54 that she ever told police that description of Sanjay who was robber was like that of her neighbour or that he had extended threats to any of them. Relevant portion of cross-examination is reproduced as under:-
"It is incorrect to suggest that I told the police that description of that boy Sanjay were like description of a Sanjay who is resident of my village Kondli."
44.PW4 thus categorically denied that there was something peculiar about offender which was analogous to some identifiable attribute of her neighbour Sanjay. The basis of her suspicion as mentioned in statement U/s 161 Cr.P.C read as Ex. PW4/A that she spotted Sanjay with other boys of locality usually standing ideally and wastefully on the chowk or that he extended threats of wrong doing against her was totally negated by her during her deposition. This is significant as any of such suspicion was not mentioned in the complaint of Sh. Pankaj Goel. In statement U/s 161 Cr.P.C of PW4 Sm.t Moorti Devi as recorded by police, she stated about words started uttered by one of robbers as 'Sanjay budiya ko chhod de' but she failed/chose not to reiterate the same in her deposition. PW1, on the other hand, stated that she was so concerned about well being of her husband and child that she could not pay attention to any conversation amongst the robbers. Similarly, the deposition of PW2 has been very categorical and specific but he also did not state that he ever had some suspicion about involvement of his neighbour Sanjay in the commission of offence.
SC No.632/2016 State vs Sanjay & Ors 26 of 54
45.It is therefore very evident that PW1, PW2 and PW3 have not divulged or testified anything which could establish identification of robbers as accused persons. Their testimonies cannot be relied to establish or to impute any culpability of commission of offence against accused persons.
46.It is evident that accused Sanjay and Adesh were apprehended and arrested by team led by IO SI Rajiv Kumar on the basis of secret information. There is nothing on record to suggest that they ascertained the reliability or credibility of any such secret information on the basis of which accused were arrested. It is important to underline the basis which laid foundation for involvement of these two accused persons in commission of offence. Although not deposed or supported by both PW1 and PW4 in their testimony, ascertaining that they actually stated about use of name 'Sanjay' to police, still without any particular characteristic or physical attribute or similarity of style, gesture, voice with some basis to even give way to suspicion, cannot suffice basis to conclude that it was the Sanjay who was known to house dwellers was the one who committed robbery as well. There is no evidence to suggest that Sanjay was troublesome to the family or had done misdeeds which made him prone to suspicion. There is no evidence that anything about him, his antecedents, his background, his conduct could have been the basis to lend some support to any such inference against accused Sanjay. Sanjay is a very common name and if by any stretch SC No.632/2016 State vs Sanjay & Ors 27 of 54 of imagination, it is accepted that one of them was called by name Sanjay, still that would not point the needle of suspicion against Sanjay who was neighbour of PW2 Pankaj Goel. Further, the chargesheet was filed by the IO wherein he has categorically mentioned that accused Sanjay was identified as one of the accused for commission of offence on the basis of description told by PW2 and PW4 who have specifically denied in their respective testimony, having divulged any such detail to police. Relevant extract of chargesheet is read as under:-
"... for search of accused persons, ASI Khushi Ram and SI Rajeev were deputed, who arrested four accused persons namely Sanjay, Adesh, Neeraj and Manish on 26.09.2007 on the basis of description told by complainant as well as complainant's mother."
47.Further there are recoveries attributed to accused Sanjay at his residence, there is no reason why police official ought not have searched his house for recovery of any robbed articles or weapons even prior to his arrest when statements u/s 161 Cr.P.C. were already recorded by police, when needle of suspicion was against Sanjay who lived in the same locality.
48.Even if for the sake of discussion, it is accepted that police wanted to round up Sanjay on the basis of information provided by Smt. Anu Goel or Smt. Moorti Devi, still there is absolutely nothing against the accused Adesh to give any remotest of cue about his involvement or the basis for the IO to infer about his involvement in the case. It is SC No.632/2016 State vs Sanjay & Ors 28 of 54 deposed by police officials who had arrested accused Sanjay and Aadesh that they not were sure whether secret informer was present at the time of apprehension of accused. Thus, there is nothing on record to state as to how they were convinced of involvement of Aadesh and even there was is nothing to substantiate the basis of identification of Aadesh by police team who had nabbed him. The basis of secret information intimating about his involvement in the offence or his identification has not been placed on record. While PW12 SI Rajeev Kumar deposed himself to be on patrolling duty when he received information about Sanjay and Aadesh, but there is any departure entry has not been placed on record. So, it appears to be a blind assertion on the part of the IO concerned to lay hands on accused Sanjay and Aadesh without any logical and legal basis.
49.Having demolished the basis of accusations against accused Sanjay and Aadesh, it is clear that the only other link sought to be established by prosecution is the recovery effected at the instance of accused persons. The alleged recovery is that of weapons of offence and robbed articles firstly at the behest of two accused persons Sanjay and Aadesh who were arrested the foremost and then at their instance, arrest of accused Manish and Neeraj who also supposedly got recovered few robbed articles at their instance and lastly accused Sanjay led police team to Sonu from whose jhuggi was got recovered one desi katta and few jewelery articles.
50.At this juncture, prosecution case is trying to harp only on alleged SC No.632/2016 State vs Sanjay & Ors 29 of 54 recoveries of robbed articles at the behest and at instance of accused persons and the pointing out of place of incident and arrest of accused persons on the basis of disclosure statement about involvement of co-accused person. It is settled that mere disclosure statement of co-accused has absolutely no legal value attached to it and cannot form basis of attributing any fault to such co-accused person. Thus, individual recoveries made by two teams led by IOs SI Rajiv and ASI Khushi Ram form the entire basis of prosecution case.
51.It is apparent by deposition of PW SI Rajiv that accused persons Sanjay and Aadesh were immediately arrested upon apprehension on the basis of secret information after which their disclosure statements were recorded and from the spot of arrest itself, they were taken to their houses for recovery of jewelery articles and weapons used in commission of offence.
52.By way of recoveries allegedly effected on the basis of information provided by accused in the form of voluntary disclosure statements got recorded by them while being in police custody, such information or part of statement becomes admissible and can be proved against the accused, if recovery is in fact made in consequence of such information. Section 27 of Indian Evidence Act is most relevant in the context at hand considering that the entire prosecution case harps on the alleged recoveries made by the IOs in pursuance to the disclosure statements of accused persons with respect to recovery of weapon of offence as well as the robbed articles.
SC No.632/2016 State vs Sanjay & Ors 30 of 54
53.Legal admissibility of recovery as laid down by Hon'ble Supreme Court of India in various cases pertaining to Section 27 Indian Evidence Act is imperative to be looked into, which carves an exception to the general rule that any confessional statement made to the police officer cannot be held against the accused person. Section 25 Indian Evidence Act mandates that no confession made to a police officer shall be proved as against a person accused of an offence. While Section 26 of Indian Evidence Act stipulates that no confession made by accused in police custody can be proved against him. Relevant provisions of Section 25, 26 & 27 of Indian Evidence Act read as under:-
"25. Confession to police-officer not to be proved.--No confession made to a police-officer shall be proved as against a person accused of any offence.
26. Confession by accused while in custody of police not to be proved against him.--No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate shall be proved as against such person.
27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
54.Distinction between Section 25, 26 & 27 of Indian Evidence Act was elaborated by the Hon'ble Supreme Court in case of Agnoo Nagesia vs State of Bihar, AIR 1966 SC 119, relevant portion of which is SC No.632/2016 State vs Sanjay & Ors 31 of 54 reproduced as under :-
"9. Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in Sections 24 to 30 of the Evidence Act and Sections 162 to 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to he found under the heading "Admissions". Confession is a species of admission, and is dealt with in Sections 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides : "No confession made to a police officer, shall be proved as against a person accused of an offence." The terms of Section are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by S. 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by S. 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by Sections 24, 25 and 26. It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence Order investigation, save as mentioned in the proviso and in cases falling under subs (2), and it specifically provides that SC No.632/2016 State vs Sanjay & Ors 32 of 54 nothing in it shall be deemed to affect the provisions of S. 27 of the Evidence Act. The words of S. 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under S. 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by S. 27 of the Evidence Act, a confession by an accused to a police office is absolutely protected under S. 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by s. 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by S.26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them.
55.The position of law in relation to Section 27 of the Evidence Act was elaborated by Sir John Beaumont in Pulukuri Kottaya and Ors. V. Emperor, AIR (1947) PC 87, wherein it was held:-
"Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to SC No.632/2016 State vs Sanjay & Ors 33 of 54 relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown has argued that in such a case the 'fact discovered' is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to S.26, added by S.27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A' these words are admissible since they do not relate to the discovery of the knife in the house of the informant."
SC No.632/2016 State vs Sanjay & Ors 34 of 54
56.In the case of Anter Singh vs State of Rajasthan, Crl. Appeal No.1105 of 1997 decided on February 5, 2004, the Hon'ble Supreme Court has laid down various requirements of the Section which are as follows:-
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received from the accused and not by accused's own act.
(4) The persons giving the information must be accused of any offence.
(5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
57.The basic premise of Section 27 is to only partially lift the ban against admissibility of inculpatory statements made before the police, if a fact is actually discovered in consequence of the information received from the accused as such condition would afford some guarantee to its truthfulness. Following observations made in case of Selvi vs State of Karnataka, (2010) 7 SCC 263, are relevant in the context :-
SC No.632/2016 State vs Sanjay & Ors 35 of 54 "....However, Section 27 of the Evidence Act incorporates the "theory of confirmation by subsequent facts" i.e. statements made in custody are admissible to the extent that they can be proved by the subsequent discovery of facts. It is quite possible that the content of the custodial statements could directly lead to the subsequent discovery of relevant facts rather than their discovery through independent means. Hence such statements could also be described as those which "furnish a link in the chain of evidence" needed for a successful prosecution....." The above noted observation was relied upon in another case reported as Navaneethakrishnan vs State, (2018) 16 SCC 161."
58. In case of Chandran v. The State of Tamil Nadu : AIR (1978) 1574, reliability upon recovery at instance of accused was declined in absence of any recording of statement by police. Following observations made in this context are relevant to be noted:
"36. ......Thus the fact remains that no confessional statement of A−1 causing the recovery of these jewels was proved under Section 27, Evidence Act....."
In this matter the court ovrerturned the finding of Sessions Judge as well as High Court and declined to accept that the articles were recovered at the instance of accused in pursuance to his confessional statement as no written confessional statement could be proved.
59.In order to rely upon the statement leading to discovery of any fact admissible, the information must come from accused in custody of police and such information must be recorded and proved by adducing evidence. In the aforesaid context, we may also refer to a decision of this Court in the case of Bodhraj alias Bodha and Others v. State of Jammu and Kashmir reported in (2002) 8 SCC
45. Further, in the case of State of Karnataka v. David Rozario and SC No.632/2016 State vs Sanjay & Ors 36 of 54 Another, (2002) 7 SCC 728, the Hon'ble Supreme Court has laid down the importance of recording the information as given by the accused and that information must distinctly relate to the place as well as object of recovery. Relevant extract of the judgment reads as under: "5....... .....It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, 6 (2002) 7 SCC 728 what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the SC No.632/2016 State vs Sanjay & Ors 37 of 54 Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or noninculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of a fact envisaged in the section. Decision of the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 :
74 IA 65] is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (See State of Maharashtra v. Damu [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : 2000 Cri LJ 2301] .
No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given.""
60.The importance of requirement to depose about the exact statement made by the accused which led to the recovery was emphasized and the manner of recording of any such statement was laid down by Three−Judges Bench of the Hon'ble Supreme Court in the case of Subramanya v. State of Karnataka, [Crl. Appeal No. 242 of 2022 (DOD : 13.10.2022)], the relevant portion of which is reproduced SC No.632/2016 State vs Sanjay & Ors 38 of 54 hereunder :
83. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act.
84. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panchwitnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden.
Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating SC No.632/2016 State vs Sanjay & Ors 39 of 54 officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter."
61.The afore-mentioned observations made in cases of David Rozario and Subramanya (supra) have been placed reliance upon and reiterated by the Hon'ble Supreme Court in the recent judgment reported as Boby vs State of Kerla, Crl. Appeal No.1439 of 2009 decided on January 12, 2023 whereby, the essentiality of procedural impeccability in recording of disclosure statement and recoveries in pursuance thereto has been stressed so that said statement containing such information can be proved against accused person.
62.It is settled that in case, any independent witness has not been joined or was not available at the time of drawing discovery panchnama, the evidence of Investigating Officer attains primacy. The observations made by Hon'ble Supreme Court in Ramanand alias Nandlal Bharti Vs. State of Uttar Pradesh Crl. Appeal Nos. 64-65 of 2022, are relevant in the context which are mentioned hereunder:-
"54. ...We are conscious of the position of law that even if the independent witnesses to the discovery panchnama are not examined or if no witnesses was present at the time of discovery or if no person had agreed to affix his signatures on the document so prepared by the police officer must be treated as tainted and the discovery evidence unreliable. In such circumstances, the Court has to consider the evidence of the investigating officer who deposed to the fact of discovery based on the statement elicited from the accused on its own worth."
63.It is settled that the exact words attributed to an accused, as SC No.632/2016 State vs Sanjay & Ors 40 of 54 statement made by him, have to be brought on record and adduced in evidence by the concerned Investigating Officer specially when the Panchnama witnesses are either not available or have not supported the recording or witnessing of preparation of discovery Panchnama at the free will and volition of the accused persons.
64.The evidence of discovery would also be admissible as conduct under Section 8 of the Evidence Act quite apart from the admissibility of the disclosure statement under Section 27 of the said Act, however, it can only serve as a link in chain of circumstance but cannot be basis of conviction. The observations of Hon'ble Apex Court in case of A.N. Venkatesh vs. State of Karnataka, (2005) 7 SCC 714 are relevant, which are reproduced hereunder :-
"9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC 90 : 1979 SCC (Cri) 656 :
AIR 1979 SC 400]."
In the aforesaid context, we would like to sound a note of caution. Although the conduct of an accused may be SC No.632/2016 State vs Sanjay & Ors 41 of 54 a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction."
65.Hon'ble Supreme Court has also expressed caution to be exercised by Courts examining reliance by prosecution upon such statements against accused. The observations made by Hon'ble Apex court in the case of H.P. Admin vs Om Prakash (1972) 1 SCC 249 are relevant in the context. Relevant extract of the judgment reads as under:-
"8...We are not unaware that Section 27 of the Evidence Act which makes the information given by the accused while in custody leading, to the discovery of a fact and the fact admissible, is liable to be abused and for that reason great caution has to be exercised in resisting any attempt to circumvent, by manipulation or ingenuity of the Investigating Officer, the protection afforded by Sec. 25 and Sec. 26 of the Evidence Act. While considering the evidence relating to the recovery we shall have to exercise that caution and care which is necessary to lend assurance that the information furnished and, the fact discovered is credible."
66.Similarly, in Kusal Toppo v. State of Jharkhand, [(2019) 13 SCC 676], the Hon'ble Supreme Court of India has sounded caution against misuse of such statements. Relevant extract of the Judgment reads as under: -
SC No.632/2016 State vs Sanjay & Ors 42 of 54 "25. The law under Section 27 of the Evidence Act is well settled now, wherein this Court in Geejaganda Somaiah v. State of Karnataka, (2007) 9 SCC 315 has observed as under:- "As the section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of the accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 of the Evidence Act."
67.Accused Sanjay and Adesh were arrested by PW12 SI Rajeev Kumar along with Ct. Sudhir and Ct. Bijender vide arrest memos Ex.PW10/A and Ex.PW10/B. It is noted that there is no mention of time of arrest of accused Sanjay and that of Aadesh on these arrest memos. Their disclosure statements were recorded right after their apprehension and arrest. Any independent witness at the time and stage of arrest or recording of disclosure statements or even at the time of any recovery effected from them was not joined by IO. Except bald statement, there is nothing on record to show that any efforts were made by the IO to join any public witness, at that time.
68. Similarly, accused Neeraj and Manish were arrested by PW15 SI Khushi Ram (then ASI) upon information and pointing out of accused Sanjay and accused Aadesh. There is nothing to understand as to how accused Sanjay and Aadesh knew despite being in custody SC No.632/2016 State vs Sanjay & Ors 43 of 54 that the other two co-accused persons were coming and would be found at a particular time at a particular place. There is no evidence to show that these accused persons knew each other or had committed any offence earlier too or were keeping contact with each other at or about the time of robbery be able to draw any adverse inference or at least to draw some connection amongst those persons.
69. Whatever recoveries were allegedly made at the instance of accused persons, have been made from their houses. If at all, IO SI Rajiv upon registration of FIR or recording of statement under Section 161 CrPC of PW1 and PW4, knew or had concluded that Sanjay was the culprit and complainant as well as his family members already knew him and Aadesh as their neighbors, there is no reason why police officials did not search or raid the houses of those accused persons rather waited for two days only to receive secret information to arrest them. All the alleged recoveries have been made from houses of accused persons. There is nothing to show that those spots were exclusive to accused persons or were inaccessible to others including their family members. The essentials and procedural protocol as laid down by Hon'ble Supreme Court to prove any information contained in disclousre statement and eventual recovery to be counted as incriminating material has not been followed by the two Investigating Officers during the course of investigation. Both IOs PW12 SI Rajiv and PW15 Retd. SI Khushi Ram had deposed that the accused persons were arrested, who made disclosure statements SC No.632/2016 State vs Sanjay & Ors 44 of 54 immediately thereafter and then they were led to their houses from where recovery of weapon allegedly used in the commission of offence and jewelery articles were made. There is no account of the actual statements in the language of accused, as stated by the said accused persons at the point of time. There is no deposition about actual worded statements narrated/made by the accused persons either and that there is nothing about authorship or concealment of the case property linked with the offence under consideration. It is also noted that there is set/identical language of disclosure statements and seizure memos relied on behalf of prosecution to impute recoveries on the accused persons, which cannot be naturally attributed to all or any accused persons. It is bizarre that all the accused persons would made disclosure statement right upon their apprehension in the same tone and usage of words with the voluntary willingness to get the articles related to commission of crime recovered.
70.The IO had deposed that the chance prints or the finger prints could not be lifted from the place of crime. PW2 in his complaint Ex.PW2/A mentioned about use of katta by the robbers but did not state anything about it in his deposition. What IO PW12 SI Rajeev Kumar and PW15 Retired SI Khushi Ram have stated that accused persons simply made disclosure statements upon apprehension and they led to their houses where articles were got recovered. The entire proceedings leading to recovery of articles at the instance and to the SC No.632/2016 State vs Sanjay & Ors 45 of 54 exclusive knowledge of accused persons, appears to be stage managed and cannot be made the basis for establishing guilt against accused persons. This is more so because there are several inconsistencies relating to the time of apprehensions, time of arrest, pointing of exact spot of recovery of articles from their respective houses, description of place of recovery, non exclusivity of space only to accused persons with no descriptions of any time or manner of departure in the testimony of the members of the team which apprehended and made the recoveries. There is no explanation as to why houses of accused Sanjay and Aadesh were not searched earlier. There is no evidence that they were running away or tried to avoid his arrest at any point of time. So the entire chain from where it all started is fallacious on the face of it. As there are no independent witness/public witness, both at the time of recording of statement as well as at the time of discovery, the only evidence remains that of the two IOs, who have simply deposed about making of disclosure statement and the recovery of articles thereupon. Neither the disclosure statement was recorded in the exact language nor did they testify about any such information on the behest of the accused persons during police custody. It is not deposed that accused made statement that he could get recover particular jewellery articles or weapon of offence from a particular location where he had hidden the same. Further, the entire basis of apprehension of two accused persons at the commencement of investigation is itself a farce. There SC No.632/2016 State vs Sanjay & Ors 46 of 54 are also serious doubts even about the identification of allegedly recovered property.
71.It is a cardinal principle of criminal jurisprudence that the prosecution has to adduce cogent, reliable, convincing evidence to establish commission of offence by accused persons. On account of above-made discussion, it is held that the prosecution has not been able to chart out sufficient incriminating material to draw guilt upon accused persons as far as offence of dacoity is concerned. As commission of dacoity is not proved, charge of usage of deadly weapon to commit dacoity punishable u/s 397 IPC is also not sustainable against accused persons. Prosecution has failed to prove firstly that articles were recovered at the instance of accused persons and secondly, they were recovered in pursuance to disclosure statement made by accused persons. As noted above, Hon'ble Supreme Court has sounded caution against misuse of statements by police officials, having extracted statements forcibly from accused while being in police custody. The modalities laid down by Hon'ble Supreme Court of India to constitute the recovery of articles at the instance of accused persons in term of Section 27 of Indian Evidence Act, have not been followed in this matter.
72.Accused persons have also been charged with commission of offence punishable U/s 412 IPC as well. Section 412 IPC for the purpose of further discussion is reproduced as under:-
SC No.632/2016 State vs Sanjay & Ors 47 of 54 "412. Dishonestly receiving property stolen in the commission of a dacoity.--Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
73. It stipulates punishment for receiving and retaining proceedings of dacoity. As decoity itself has not been proved to have taken place by the accused persons, and the proceeds, if any, were that of robbery, basic ingredients for the section about stolen property as proceeds of dacoity or recovered from gang of dacoits are missing.
74. Section 410 IPC however, needs to be examined in the context as it draws contours of any property recovered as stolen property which may have been the result of theft, extortion or robbery. Section 411 IPC prescribe punishment for receipt or retention of any such stolen property. Relevant provisions of section 410 IPC & 411 IPC are reproduced as under:-
410. Stolen property.--Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", 4 [whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without [India]]. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.
411. Dishonestly receiving stolen property.--Whoever SC No.632/2016 State vs Sanjay & Ors 48 of 54 dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
75. To prove the commission of offence U/s 411 IPC, it is important for the prosecution to prove (i) that the stolen property was in the possession of accused persons (ii) some other person had the possession before the accused persons got the possession of such stolen property (iii) accused had knowledge that such property was stolen.
76. It is settled as also led down in the case of Mir Naqvi Askari Vs. CBI, AIR 2010 SC 528 that principal offenders are outside the scope of the section and it is only against those persons who were knowingly and intentionally receivers of stolen property.
77. Section 114 of Indian Evidence Act is imperative to be read in the context which lays down presumption against the accused persons that if prosecution is able to prove beyond reasonable doubt that accused was found in possession of stolen property then the burden shifts upon the accused to either explain the circumstance, else presumption would invoke against him that either he was the receiver of such stolen property or was the thief himself. Relevant provision of section 114 of Indian Evidence Act reads as under:-
114. Court may presume existence of certain facts. -- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private SC No.632/2016 State vs Sanjay & Ors 49 of 54 business, in their relation to the facts of the particular case.
Illustrations The Court may presume -- (a) that a man who is in possession of stolen goods soon, after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
78. In the case at hand, as already discussed, the recovery attributed to accused persons in pursuance to disclosure statement recorded by police has not been found to be credit worthy and thus prosecution, in the backdrop of discussion made above, could not establish that the articles were indeed recovered at the instance of or necessarily from the possession of accused persons. There is no evidence to show that the accused persons knew each other or used to indulge in any such acts together or were in active concert with each other or approached someone for selling the proceeds of crime or kept in touch with each other pre or post incidents. There is no evidence to show either that someone else handed over those articles to them which proved that the articles had ever transferred hands or that they knew independently that those were necessarily proceeds of any such crime. Every thing appears to be hatched and do not depict a natural and convincing sequence of events forming milestones of investigation. In fact as stated in complaint Ex.PW2/A, a mobile phone whose number was mentioned in the complaint was also taken away / robbed but there is nothing to show that any attempt was ever made to trace out its location during investigation. Neither statement of Rajesh whose mobile phone was robbed recorded by IO nor SC No.632/2016 State vs Sanjay & Ors 50 of 54 charge sheet contains any record of efforts put in by IO to use this aspect to reach out the culprits in place of relying upon vague physical general discussion of robbers to zero in on the actual culprits.
79. There is no evidence that accused persons received the stolen property or that they knew any articles to be stolen or that they continued to retain the same none the less. The prosecution has not been able to convincingly prove that the accused persons were in physical or constructive possession of stolen articles which made them liable for explanation.
80. Further, Ld. Counsel for accused persons has raised serious doubt even upon description of stolen articles. It is pointed out that general description of jewelery articles was given in complaint Ex.PW2/A. It is noted that IO SI Rajeev has deposed to have obtained a gold broken chain from immediate possession of accused Adesh. However, any such broken chain do not find any mention in the TIP proceedings proved and placed on record as Ex.PW1/A. Similarly with respect to chain with Tulsi beadings, there is nothing mentioned in any of the seizure memos proved on record about any chain having black stone beadings. Strangely, there is also no mention of any such broken chain as allegedly recovered from accused Adesh in the entire testimony of PW1, PW2 and PW4 where they identified the case property produced by themselves which were got released by PW1 and PW4 on Superdari. PW2 stated about one gold chain SC No.632/2016 State vs Sanjay & Ors 51 of 54 only which he stated pertained to his wife. PW2 did not make any mention of chain pertaining to his mother. It is also strange that PW2 deposed about one chain released on superdari, which was subsequently snatched away qua which FIR was also registered due to which he was unable to produce the same during the recording of testimony but PW4 Smt. Murti Devi who was subsequently examined after about a year produced the said chain during recording of her testimony. Counsel for the accused stated that FIR No.46/11, PS Krishna Nagar was lodged as per which gold chain pertaining to PW1 Anu Goel was snatched on 12.02.2011 whereas Pankaj Goel appeared on 10.05.2011 and produced the chain released on Superdari to his wife Smt. Anu Goel and identified it. Similarly with respect to the cash robbed by the robbers, there is no description about the currency, therefore, recovery of cash from any of the accused persons cannot be directly categorized to be a stolen property, moreso, when same was allegedly partly recovered at least after two days of the incident.
81. Accused Sanjay and Sonu had also been charged with commission of offence punishable 25 of Arms Act. As recovery of weapons at their instance or from their person has itself not been proved, there is no occasion to further indulge into the aspect of usage of those articles for/in commission of any offence. There is discrepancies in the statement of PW1, PW2 and PW4 about nature of weapons possessed by robbers at the time of commission of offence. There is SC No.632/2016 State vs Sanjay & Ors 52 of 54 no proof that the weapons were actually used during crime. Description of accused as assailants has not been proved either. Then, the articles were recovered at their instance by the police has also not been proved. Therefore, in the wake of above discussion, there is nothing which can hold accused persons guilty for commission of offence punishable U/s 25/54/59 of Arms Act.
82. Summing up the entire discussion, it is held that there are serious discrepancies in the prosecution case. The entire basis of thrusting case against the accused persons is fallacious. A wrong start cannot lead to be a correct finish. No credibility can be attached to the prosecution to establish guilt against the accused persons. Prosecution case cannot rest on conjuncture or surmises. Even for any presumption to hold against accused, it is imperative for prosecution to convincingly prove incriminating evidence against the accused persons for the presumption to come into play against him. The chain of evidence to connect the accused with the crime is hardly complete. Several discrepancies and shortcomings in evidence as noticed supra considerably corrode credibility of the prosecution version. That being so, the inevitable conclusion is that the prosecution has not established the accusations against the accused persons beyond reasonable doubt and consequently accused persons are entitled to the benefit of weakness of prosecution case.
SC No.632/2016 State vs Sanjay & Ors 53 of 54
CONCLUSION
83. All the accused persons namely, Aadesh, Neeraj, Sanjay, Manish Yadav and Sonu are acquitted of the charge for commission of offences punishable under Sections 395/34, 397/34 and 412 IPC. Accused persons Sanjay and Sonu are also acquitted of the charge for commission of offence punishable under Section 25/54/59 of Arms Act.
84. File be consigned to Record Room after compliance of section 437A Digitally signed Cr.P.C. SHELLY by SHELLY ARORA ARORA Date:
2023.10.20 16:41:04 +0530 (Shelly Arora) Additional Sessions Judge-05 East/Karkardooma Courts/Delhi Announced in the open Court on this 20th day of October, 2023 SC No.632/2016 State vs Sanjay & Ors 54 of 54