Delhi District Court
Fir No. 281/2000 State vs . Jai Singh Etc. 1/51 on 23 September, 2017
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL
SESSIONS JUDGE(NE), KARKARDOOMA COURTS, DELHI.
SC No. 44846/15
FIR No. 281/2000
PS : Welcome
U/s. 448/380/506(II)/395/458/34 IPC
State
Versus
1. Jai Singh
S/o Sh. Biramanand
R/o 29/11, Main Road,
Babar Pur, Delhi (Proceedings against accused Jai Singh
stands abated vider order dt. 02.02.15)
2. Krishan
S/o Sh. Jai Singh
R/o 29/11, Main Road,
Babar Pur, Delhi
3. Santu
S/o Sh. Deep Chand
R/o 29/11, Main Road,
Babar Pur, Delhi.
4. Sanjay Kumar
S/o Sh. Jai Singh
R/o 29/11, Main Road,
Babar Pur, Delhi.
5. Deep Chand
S/o Sh. Biramanand
R/o 29/11, Main Road,
Babar Pur, Delhi
FIR No. 281/2000 State Vs. Jai Singh etc. 1/51
6. Sant Ram
S/o Sh. Deep Chand
R/o 29/11, Main Road,
Babar Pur, Delhi
7. Tejveer Singh
S/o Sh. Chhotey Lal
R/o 401/8, Adarsh Gali,
Babar Pur, Delhi.
Date of Committal : 03.02.2017
Date of Arguments : 15.09.2017
Date of Pronouncement : 23.09.2017
JUDGMENT :
1. Prosecution case: It is the case of the prosecution that on 18/10/2000, a complaint was received by PS from one Brij Pal that he had been residing at 29/11, Gali No. 8, Nehru Gali, Babarpur, Delhi for the last 15 years provided by Prakesh Chand being working as contractor in his factory. It is further stated that his wife Shimla was doing her tailoring work in the same premises for the last 7 years. It is further stated that he used to hand over keys of his room in the morning of Tuesday to one Ashiq Ali to stay in the premises while going to meet his children residing with his parents at Harsh Vihar. It is further stated that on 11/10/2000, at about 8.00 am, he returned back to his home and saw that two locks were put on the door of his room and Ashiq Ali told him that accused persons had robbed his cash of Rs. 22,500/-, 4 tolas gold, 35 tolas silver, sewing machines, gas cylinder with burner, three briefcases containing FIR No. 281/2000 State Vs. Jai Singh etc. 2/51 clothes and documents, wheat tank and other articles. One the basis of this statement, FIR was lodged u/s 448/380 IPC. After investigation and arrest of accused, this charge sheet was filed before the court of Ld. MM u/s 380/448/506 (II)/34 IPC.
2. This charge sheet was committed to the Court of Session on 21/2/2002 being the offence punishable u/s 395 IPC, but on 27/1/2005, Ld. District and Session Court remanded back the matter to the court of Ld. MM with the observations to frame charges u/s 149/457/392/323/506/34 IPC and charges were framed accordingly by the Ld. MM vide order dated 31/08/2007.
3. This charge sheet again committed to the Court of Session on 18/9/2012 u/s 323 Cr.P.C. vide order dated 12/10/2012 and assigned to this court.
4. This court framed charges u/s. 323/395/457/506 r/w 149 IPC against the accused persons on 22/11/2013 and accused pleaded not guilty and claimed trial.
5. To prove the allegations, prosecution has examined PW1 Brij Pal, PW2 Ct. Rajesh Kumar, PW3 SI Harbhanjan, PW4 Ct. Vijay Pal, PW5 Aashiq Ali, PW6 Smt. Simla, PW7 Retd. ASI Subedar Singh, PW8 Dr. Manoj Kumar, PW9 Rattan Lal, PW10 Prakesh Chand, PW11 SI Kishan Pal, PW12 Mool Chand, PW13 Rajbir Singh, PW14 Retd. ACP Hem Chand, PW15 SI Harvir Singh, PW16 SI Shiv FIR No. 281/2000 State Vs. Jai Singh etc. 3/51 Shankar Prasad, PW16 Retd. ASI Virender Kumar, PW18 ASI Raj Kumar and PE closed.
6. After PE, entire incriminating evidence explained to the accused persons under section 313 Cr.P.C and their statements were recorded on 05/06/2017 and 06/06/2017.
7. Accused persons have also examined one Defense Witness Trilok Chand to prove their defense and thereafter defense evidence was closed by this court after granting three opportunities to lead further DE vide order dated 28/07/2017.
8. To prove the charges, the prosecution has examined witnesses as under:
8.1. PW1 Brij Pal has deposed that he has been working as contractor in the factory of Prakash Chand situated at Bawana and in the year 2000, he along with his wife Shimla started residing in a room situated in the area of Babarpur and provided by Prakesh Chand. It is further deposed that his wife Shimla was doing the job of tailoring in the same room. It is further deposed that he used to visit his children on the eve of Monday as they had been residing with his parents in the area of Harsh Vihar and on 10/10/2000, he handed over the keys of his premises to his confident Ashiq Ali to sleep in his room in his absence and went to the house of his parents. It is further deposed that on next day, he returned back to his room along with FIR No. 281/2000 State Vs. Jai Singh etc. 4/51 his wife and saw a crowd gathered in street and found that two locks had been put on his room. On enquiry from Ashiq Ali, he came to know that accused Jai Singh (now deceased), Deep Chand, Sant Ram, Santu, Krsihan, Sanjay, Tejveer and others had committed trespass into his room and robbed his articles comprising of Rs.
22,500/-, 4 tolas gold, 35-40 tolas silver jewellery,3 suit cases (two iron and one plastic) and one of them was containing cash, jewellery and documents of his plot at Harsh Vihar, kitchen items including gas stove, LPG cylinder, one power sewing machine, one manual sewing machine and one wheat container containing two bags of wheat. It is further deposed that Ashiq Ali also informed him that the robbery was committed on the point of knife. He along with his wife and other residents went to PS but police did not take any action on his complaint despite approaching of higher police authorities and despite sending telegrams. However, thereafter, matter was heard by PS, Welcome and his complainant Ex.PW1/A written by Rajvir was considered and this case was lodged. During investigation, police seized some photographs of his premises vide seizure memo Ex.PW1/B. It is further deposed that the accused persons put their milk containers in the premises to show their possession which were seized vide seizure memo Ex.PW1/C. It is further deposed that accused Tejveer was arrested by the police in his presence vide arrest papers Ex.PW1/D and Ex.PW1/E. It is further deposed that the police seized sewing machine and brief case containing some clothes from the possession of accused as informed by police and were identified by him in police custody. He got released the sewing FIR No. 281/2000 State Vs. Jai Singh etc. 5/51 machine on superdari. Sewing Machine is Ex.P1, but briefcase could not be detected by the MHC (M).
8.1.1. During cross examination, he has admitted that his statements were also recorded between 03/12/2007 to 04/08/2008. It is further deposed that he reached to his house on 11/10/2000 at about 8.00 am, but did not remember whether he made PCR call to police or not, but no written complaint was made with police regarding the incident and even he did not go to the office of DCP concerned against not lodging of his FIR. It is further deposed that on 18/10/2000, at about 4.00 pm, he along with Ashiq Ali and Prakesh Chand went to PS and remained there till 7:30 pm and met SHO, but did not remember whether he met IO, SI Shiv Shankar or not. It is further deposed that police were not accompanied with him when they left PS but followed them on 18/10/2000. It is further deposed that 5-7 police officials reached the spot and handed him over back the possession of the room to him. It is admitted that accused Sant Ram has filed a suit for possession of the premises but was not aware as to whether it has decided in his favor or that he was examined as witness in that case. He was also not aware about the filing of an appeal against the decree of Ld. Trial Court before the Hon'ble High Court or that the possession of the property has been restored to Sant Ram vide documents mark PW1/DB. It is further deposed that he told to the police that Ashiq Ali told him that Jai Singh, Deep Chand, Sant Ram, Santu, Krishan, Sanjay and Tejveer along with others entered into his room, but police neither recorded FIR No. 281/2000 State Vs. Jai Singh etc. 6/51 nor mentioned this fact in his complaint. It is admitted that he disclosed to the police that his articles and cash were looted from his room but police did not record this fact in his complainant. It is further deposed that Ashiq Ali told him that robber committed robbery on the point of knife but police also did not record this fact in his complaint. It is further deposed that the copies of complaints to higher authorities through telegrams were sent by Prakesh Chand and this fact was also disclosed to police. It is further admitted he disclosed to the police about putting of milk containers in his premises by the accused persons. The statement of Ashiq Ali was not recorded in his presence on 18/10/2000 at PS, but he was present there at that time. He did not remember as to whether police recorded his statement regarding restoration of possession to him.
8.2. PW2 Ct. Rajesh Kumar was the photographer of photo section of Delhi Police and has proved the negatives of photographs Ex.PW2/A1 to Ex. PW2/A8 of which positives are Ex.PW2/B1 to Ex. PW2/B6, but two photographs could not be developed.
8.2.1. During cross examination, he has admitted that MHC(M) has produced these photographs directly before the court. He was not aware as to whether these photographs were given to accused or not. It is further deposed that he visited the spot of incident but did not know as to when he visited there, however, DCP, ACP and SHO were not present there at that time. It is further deposed that neither identification mark was put on the photographs nor any seizure FIR No. 281/2000 State Vs. Jai Singh etc. 7/51 memo was prepared at the time of handing seizure memos.
8.3. PW3 SI Harbhanjan was posted as DO. SHO handed over a rukka Ex.PW3/A to him to get registered FIR Ex.PW3/B. He sent the copy of FIR and rukka to IO Shiv Shankar through Ct. Vijay.
8.4. PW4 Ct. Vijay Pal has deposed that on 18/10/2000, he handed over the copy of FIR and rukka to SI Shiv Shankar after collecting from DO. IO SI Shiv Shankar prepared site plan of the spot in his presence and thereafter arrested the accused Sant Ram vide arrest memo Ex.PW4/A and personal search memo Ex.PW4/C. Accused made his disclosure statement Ex.PW4/B. IO also recorded disclosure statement of accused Tejveer Ex.PW4/D in his presence. He has identified the accused Sant Ram but could not identify accused Tejveer.
8.5. PW5 Ashiq Ali has deposed that he was working in the factory of Prakesh Chand as labor and Brij Pal was his contractor and was also working in the same factory at H.N. 29/10, Gali No-8, Babarpur. It is further deposed that on 10/10/00, he was sleeping in the room of Brij Pal who went to meet his parents after handing him over keys of room. It is further deposed that Brij Pal used to hand over keys on the eve of Monday to him and used to come on following day. It is further deposed that he was sleeping in the room and suddenly one brick wall fell down on his wooden takht and wake him up and saw that seven persons entered into the room after breaking open the FIR No. 281/2000 State Vs. Jai Singh etc. 8/51 door of the room and accused Jai Singh overpowered him and accused Santu, Sant Ram and Deep Chand caught him hold. Tejveer pointed put knife on his chest and extended threats to kill him if tried to run away. It is further deposed that accused and his associates robbed the households articles lying in the room belonged to Brij Pal in his presence and took away three sewing machines, one wheat storage tank besides two briefcases. Sanjay slapped him and other accused made him sit on the takht forcibly and put 14-15 milk containers of different sizes put in the room. It is further deposed that on getting opportunity, he made call to owner Prakesh Chand, Charan Singh and other family members who also reached there. PCR van also reached there and found that a tempo was stationed outside the room in which households of Brij Pal had been loaded, but police did not take any action on their complaint and accused took away all the articles. It is further deposed that on next morning, Brij Pal came back along with his wife and they went to PS but police did not take any action despite obtaining his signatures on one paper. It is further deposed that either on 18 or 19/10/2000, police officials reached there and prepared site plan and two other documents and seized milk drums vide Ex.PW5/A and Ex.PW5/B. It is further deposed that Tejveer was arrested in his presence vide memo Ex.PW4/D bears his signatures. He has identified the photographs showing the room as Ex.PW2/B1 to Ex.PW2/B6. Drums are Ex.P1, Sewing machine is Ex.P2, but other seized articles could not be produced before the court.
FIR No. 281/2000 State Vs. Jai Singh etc. 9/51 8.5.1. During cross examination, he has deposed that he has no documents that he has been working as labor in the factory of Prakesh Chand. It is further deposed that he had been using the room to sleep for the last 15-20 years on the eve of Monday or Tuesday night, but has no documentary proof to it. It is retreated that accused took away three sewing machines, clothes, three briefcases and one wheat container from the premises in his presence. It is denied that Sant Ram and others had been residing in the same room for the last so many years, but it is admitted that he did not inform the police that two PCR van reached at the spot. He was also not aware as to whether any civil litigation is pending between the parties with regard to this property. It is further admitted that he along with Brij Pal and his wife visited the PS but police did not take any action against accused. It is admitted that he was not aware about the contents of documents Ex.PW5/A and Ex.PW5/D. 8.6. PW6 Smt. Simla has deposed that her husband has been working in the factory of Praesh Chand for the last 15 years and was provided one room in House No. 29/11, Gali Number 8, Babar Pur, Delhi by Prakesh Chand who was also residing in the adjoining house along with his family. It is further deposed that she was doing sewing work in those days from the same room and was maintained two sewing machines. It is further deposed that her children were residing with their grandparents in those days. She knew Ashiq Ali who was working a labor in the factory of Prakesh Chand. It is further deposed that on 10/10/2000, at about 8.00/9.00 pm, her husband FIR No. 281/2000 State Vs. Jai Singh etc. 10/51 handed over the keys of their room to him to sleep during night in their absence as they were going to meet her children. It is further deposed that on next day, they came back to and found a crowd gathered in front of her room and Ashiq Ali disclosed that accused persons committed robbery of articles comprising of cash of Rs.22,200/-, jewellery, grain tank, clothes, utensils and briefcases containing documents pertaining to house at Harsh Vihar and sewing machines etc. Ashiq Ali disclosed the names of the accused who have correctly identified by her. Her husband went to PS but police did not take any action on their complaint on that day. Police took action after some days of incident and some articles including sewing machine were recovered from accused and one sewing machine was got recovered on superdaari.
8.6.1. During cross examination, she has admitted that her statement was recorded before the court of Ld. MM on 11/9/2008, but it is denied that she has improved her statement deliberately.
8.7. PW7 Retd. ASI Subedar Singh has deposed that in the month of Oct, 2000, he was posted as PCR in-charge and was having his base at Babarpur Police Booth. On receiving information, he along with other police officials reached the spot and saw that some persons were quarreling with each other and some were lifting the household articles from one premise and were throwing in nala/drain. He tried to control the situation but both groups were adamant. He passed on the information to control room and ASI Harbeer Singh FIR No. 281/2000 State Vs. Jai Singh etc. 11/51 along with staff reached there and also tried to control the situation. SHO also reached there.
8.7.1. During cross examination by Ld. APP for State, he has deposed that he did not remember whether incident took place in the intervening night of 10/11 of October, 2000 or that some persons were getting vacated one room forcibly or that two groups were quarreling over issue of claiming of possession over one premises. It is further deposed that he was not aware as to whether one group wanted to grab the premises out of the possession of other. It is denied that 2-3 persons told him that they wanted to dispossess one person from his house or that were taking one wooden rack to throw in nala. It is further denied that some persons looted the house hold articles from the room in question and loaded on a truck. It is further denied that he took those persons to PS and dropped them there.
8.7.2. During cross examination, he has admitted that he did not see anyone lifting the articles or throwing the same in nala or that he saw any truck loaded with household articles of someone.
8.8. PW8 Dr. Manoj Kumar has proved the MLC of patient Ashiq Ali prepared in the intervening night of 10/11.10.00 at GTB Hospital brought by Ct. Jitender with alleged history of assault. No injury was detected on the person of the patient. MLC of injured is Ex.PW8/A (original not on record).
FIR No. 281/2000 State Vs. Jai Singh etc. 12/51 8.9. PW9 Rattal Lal was the relative of Prakesh Chand and received an information from youngest son of Prakesh Chand namely Narender. He visited the house of Prakesh Chand on 11/10/2000 but Prakesh Chand and his sons Mool Chand and Charan Singh were not present there, however he came to know from the ladies of the family that Jai Singh and others had committed the dacoity in the room of Prakesh Chand in which his relative along with his wife was residing. He visited the spot and saw that one takht and some other articles were lying besides 8-10 milk drums were lying on the floor of the room.
8.9.1. During cross examination, he has admitted that he neither met police nor his statement was recorded in this case on 11/10/2000. He did not see accused on that day near the room in question.
8.10. PW10 Prakesh Chand has deposed that he has been running a metal factory at W-252, at some distance of his residence, and Brij Pal is his contractor for the last 20-25 years and Ashiq Ali is also his another employee for the last 20 years. It is further deposed that his father purchased House Number 29/11, Gali No. 8 and he handed over one room out of the premises to Brij Pal, who was also his distant relative, to reside and he started residing in the premises along with his wife. On the intervening night of 10/11.10.2000, he received a ring ball during night from the room of Brij Pal where Ashiq Ali was sleeping as Brij Pal and his wife were away to Harsh Vihar. He immediately reached the house of Brij Pal and saw that accused FIR No. 281/2000 State Vs. Jai Singh etc. 13/51 Jai Singh, Krishan, Santu, Sanjay, Deep Chand, Sant Ram and Tejveer were inside the room and were beating Ashiq Ali. Tejveer was having knife and pointed towards Ashiq Ali and all of them removed the households of Brij Pal with the help of 20-25 other persons and loaded on a tempo and took away them away from the room. PCR reached there and he also made complaint to PCR van but no action was taken. It is further deposed that he along with his son and accused Deep Chand and Sant Ram were taken to PS and were produced before Ld. SEM and his son Charan Singh and Mool Chand were sent to JC, but he was granted bail. He sent telegrams about the incident to higher authorities but no action could be taken. His son Narender also sent telegrams on 14/10/2000 of which copies and receipts are Ex.PW10/1 to Ex.PW10/8. On 11/10/2000, he moved on application to ACP concerned but again no action was taken and application is Ex.PW10/9. He repeatedly visited the Senior Police Officers and ultimately on 18/10/00, this FIR was registered on the statement of Brijpal. Police took into possession of the milk containers / drums and handed over the possession of the room to him. It is further deposed that the accused Sant Ram was apprehended by the police.
8.10.1. During cross examination, he has admitted that accused Deep Chand and Jai Singh are his real brothers and also that he was accompanied with Brij Pal, his wife and others to PS on 18/10/2000 when Brij Pal made his written complaint written by police official under the dictation of Brij Pal. They reached at PS at about 4 pm and FIR No. 281/2000 State Vs. Jai Singh etc. 14/51 remained there for about 4 hours and returned back at about 6:00/7:00 pm after registration of FIR. It is further deposed that DCP, ACP, SHO and SI Shiv Kumar along with 10-12 police officials visited the spot and handed him over back the possession of the room to Brij Pal and premises was locked at that time. It is further deposed that SHO broke open the lock, again said he broke open the lock in the presence of SHO and police took into possession the articles lying in the room after handing over the possession, but he did not see the milk drums at the spot seized by the police. It is further deposed that neither photographs nor seizure memo of the seized articles were prepared, however, he did not provide any document to the police regarding his possession over the premises to police on 18/10/2000. It is admitted that brother-in-law of his daughter namely Bablu was working in Delhi Police, but it is denied that he obtained the possession of the premises forcefully in connivance of him. It is admitted that Sant Ram filed a civil suit for recovery of possession of the room in which he filed an application for his impleadment in that case but it was not allowed and appeal against it was also dismissed. It is admitted this suit has been decreed in favor of Sant Ram. It is further admitted that appeal against the decree has also been dismissed. It is admitted that he along with Charan Singh, Mool Chand as first party and Deep Chand and Sant Ram as other party were arrested u/s 107/151 Cr.P.C or was released from custody on next day on bail. He knew Trilok Chand and Tejveer, but it is denied that there statements were recorded in Kalandra Proceedings; however his statement was not recorded in that Kalandra. He did not FIR No. 281/2000 State Vs. Jai Singh etc. 15/51 remember as to whether appeal against Kalandra has dismissed, but it is admitted that accused Sant Ram has filed a complaint case against him in which he has been summoned and has released on bail. It is admitted that he disclosed to police about the facts deposed before this court on 18/10/2000 but the facts pertaining to his possession over the premises since 1978, business or employment of Brijpal and Ashiq Ali are not mentioned in Ex.PW10/DA. He has also not disclosed that he purchased this property by his father or handing over the possession of Brijpal to reside in his property. It is further deposed that he did not tell the police that he saw the accused inside the room but it was disclosed that all the accused persons removed his articles from the room with the help of 20-25 persons, but it is not recorded in his statement Ex.PW10/DA or that they were beating Ashiq Ali or that Tejveer was having knife in his hand or pointed towards Ashiq Ali. He also did not disclose to police about sending of telegrams to higher police officers. He moved a written complaint to ACP but again it is not recorded in his statement.
8.11. PW11 SI Kishan Pal was posted as MHC(M) and on 18/10/2000, IO deposited 14 milk drums in malkhana in sealed conditions vide entry Ex.PW11/A. Thereafter, 6 photographs in sealed condition were deposited with him in pursuance of court order dated 9/4/2015, but no other case property was deposited with him. He did not remember the time of depositing the case property with malkhana or the time of placing these photographs on judicial file.
FIR No. 281/2000 State Vs. Jai Singh etc. 16/51 8.12. PW12 Mool Chand has deposed that on 10/10/2000 between midnight to 1.00 am, Ashiq Ali rang a bell to his house and he along with his family members came out and saw that 20-25 persons were loading material containing wheat container, sewing machines and two cylinders in tempo and all the accused were inside the premises. It is further deposed that PCR van was stationed outside the room. Ashiq Ali was surrounded by the accused and Tejveer put a knife on Ashique. He made complaint to PCR but PCR van did not take any action and took his father and brother to PS and detained them. It is further deposed that as soon as accused removed the articles from the room and they put their own articles containing milk drums, but police did not record his statement despite his insistence.
8.12.1. During cross examination, he has admitted that Sant Ram has filed a civil suit for recovery of the premises against Brij Pal which has been decreed in his presence vide documents Ex.PW12/D1. It is denied that accused did not trespass into the room or that no PCR van visited the spot and took them to PS. 8.13. PW13 Rajbir Singh has deposed that on 11/10/2000, at about 2:00/3:00 am, Narender, brother of Charan Singh made a call to him to inform that Brijpal had trespassed into a room. He visited the spot and one M.S. Rana called him to the house of Narender and took him to Connaught Place to dispatch a telegram to police. On 18/11/2000, he along with Brij Pal and Narender went to PS, Welcome to lodge an FIR against the accused persons but police did FIR No. 281/2000 State Vs. Jai Singh etc. 17/51 not record the FIR against the incident. It is further deposed that he recorded the statement of Brij Pal after interrogation under the dictation of the police official. FIR was lodged on the basis of the statement Ex.PW3/A. 8.13.1. During cross examination, he has admitted that he did not know to whom telegram was addressed but it was prepared by M.S. Rana, however, it was dispatched on behalf of Prakesh Chand.
8.14. PW14 Retd. ACP Hem Chand has deposed that on 18/10/2000, at about 8:30 pm, complainant Brij Pal came to PS along with one other person and made his complaint Ex.PW1/A on which he made his endorsement Ex.PW14/A for registration of FIR. He presented rukka before DO who registered FIR Ex.PW3/B and assigned the investigation to SI Shiv Kumar to whom rukka and FIR was delivered.
8.14.1. During cross examination, he has admitted that in the intervening night of 10/11.10.2000, he was posted as SHO. He did not remember that ASI Harbir Singh arrested Prakesh Chand, Mool Chand, Charan Singh, Sant Ram and Deep Chand u/s 107/151 Cr.P.C., but it is admitted the documents Ex.PW14/DA1 to Ex.PW14/DA3 and documents Ex.PW14/DA1 bear his signatures. Copies of the statements Ex.PW14/DB and Ex.PW14/DC are of accused Jai Singh and Deep Chand in Kalandra Proceeding. He did not remember as to whether Prakesh Chand and Mool Chand did not FIR No. 281/2000 State Vs. Jai Singh etc. 18/51 make any statement of theft of his articles and illegal trespass into his room. He visited the spot of incident in the intervening night of 10/11.10.2000 and stayed there for about 15 minutes and many persons had gathered at the spot, but prior to his visit, ASI Harvir Singh had already visited in pursuance of PCR call, but he did not meet him at the spot during his visit to spot. It is admitted that he did not find the evidence of theft or illegal possession of the room during his visit, but verified these facts before registration of FIR, however, did not mention this fact in rukka. It is further deposed that Brij Pal neither handed over any proof of his possession on the room nor list of missing articles with the complaint. It is denied that he had handed over the forcible possession of the possession to Prakesh Chand and his family. It is further deposed that he did not know whether Sant Ram lodged a complaint against him with Commissioner of Police and other authorities or that any complaint was also filed against him before the court in which he filed a reply in that case or that Ld. MM has summoned Prakesh Chand, Charan Singh, Mool Chand and Brij Pal. It is admitted that Prakesh Chand did not produce any document of his possession or ownership over the room.
8.15. PW15 Retd. SI Harvir Singh was assigned the investigation of DD No. 42A by DO to take action regarding a quarrel at Babarpur near Street No. 8. He alongwith Ct. Jitender visited the spot and found two groups quarreling with each other on the issue of taking over the possession of the property. He apprehended 5 persons of both parties namely Mool Chand, Prakesh Chand, Charan Singh, FIR No. 281/2000 State Vs. Jai Singh etc. 19/51 Deep Chand and Sant Ram and took them to PS. It is further deposed that he prepared a kalandra and recorded the statement of witnesses namely Jai Singh and Trilok Chand. He also recorded DD No-43A which is Ex.PW13/DA2. He filed Kalandra proceedings before the concerned court against accused. It is admitted that Kalandra proceedings are Ex.PW14/DA1 to Ex.PW14/DA3, Ex.PW14/DB and Ex.PW14/DC. He has also deposed in criminal complaint filed by the accused as CW8.
8.16. PW16 SI Shiv Shankar Prasad conducted the investigation of this case on delivery of rukka and FIR by Ct. Vijay Pal. He reached the spot of incident and met Brij Pal and Ashiq Ali and found 10-12 milk drums on the floor of the disputed room and door of the room were lying opened when he reached there. He prepared a site plan which is not on record but copy of the same is Mark PW16/1. It is further deposed that Brij Pal handed over 6 photographs of the spot to prove his possession depicting Brij Pal in the room and the same were seized vide seizure memo Ex.PW5/B and wife of Brij Pal had been running his tailoring work from the same room. Crime team and photographer visited the spot but no SOC report was prepared, however photographer took five photographs of which negatives are on record. It is further deposed that he seized milk containers from the spot and Ashiq Ali told him that those drums were put by the accused persons after removing the articles of the complainant to show their possession. He arrested accused Sant Ram who disclosed the names of other co-accused. On 20/10/2000, he FIR No. 281/2000 State Vs. Jai Singh etc. 20/51 arrested Tejveer at the instance of Ashiq Ali and also recorded his disclosure Ex.PW16/A in which he disclosed the names of other accused. On 2/11/00, he arrested accused Jai Singh ( now deceased) at the instance of secret informer along with a sack containing sewing machine, briefcase and other articles removed from the spot of incident, however, the complainant identified those articles in PS. He has identified the milk drums as Ex.P1, Sewing machine is Ex.P2, but briefcase is not traceable.
8.16.1. During cross examination, he has admitted that Ashiq Ali did not make any complaint prior to lodging of this case, but it is not in his knowledge as to whether any such complaint was made to higher authorities. It is further admitted that the use of knife during incident is not mentioned in the FIR. He did not know whether both parties were apprehended in this case u/s 107/151 Cr.P.C. It is further admitted that complaint and Prakesh Chand did not produce any documents regarding possession of disputed property. Photographs of the property were handed over by Brij Pal but he did not insist for their negatives or to ascertain the occasion when those photographs were clicked. It is further admitted that he did not find lock at the spot but milk pots belonged to accused Sant Ram. It is denied that he refused to seize the ownership documents of the premises from accused Sant Ram. It is further deposed that he did not mention in the site plan that it was prepared at the instance or Brij Pal or but he has not shown the spot of presence of Brij Pal and Ashiq Ali in the site plan. It is further deposed that he has never seen the negatives FIR No. 281/2000 State Vs. Jai Singh etc. 21/51 which have been identified by him before the court. It is admitted that complainant and his wife did not provide any document of ownership of the sewing machine, brief case and clothes recovered from the accused. It is admitted that during the investigation with him, he found the allegations of the offence u/s 448/380 IPC only and did not find any material regarding any other offence. It is admitted that he recorded the statement of Ashiq Ali on the same day at about 11.00 pm and he did not concede that accused Santu, Sant Ram, Sanjay, Krishan and Jai Singh did not remove the articles from the room in his presence. It is further deposed that he did not know the person who put knife on the chest of Ashiq Ali but he disclosed to identify him if brought before him and later on, Tejveer was identified the person who put knife on his chest. It is further deposed that TIP of the accused was not get conducted to identify the person who used knife during the incident. It is further deposed that complainant party did not claim the ownership of milk pots, however he was not aware as to whether civil decree has been passed against the complainant in this case. It is admitted that no public person was joined into arrest proceedings of accused Sant Ram, Tejveer and Jai Singh and even no recovery was affected in pursuance of disclosure statements of accused Sant Ram and Tejveer. It is denied that recovery from accused Jai Singh (now deceased) is planted, but it is admitted that no public person was present at the time of recovery at the instance of accused. It is admitted that the arrest and recovery from Jai Singh (now deceased) was carried out in populated area.
FIR No. 281/2000 State Vs. Jai Singh etc. 22/51 8.17. PW17 Retd. ASI Virender Kumar has deposed that on 8/11/2000, he took over the further investigation of the case and formally arrested accused Deep Chand and Sanjay vide arrest papers Ex.PW17/A to Ex.PW17/D. He made efforts to make recovery but could not be affected despite police custody of accused Sanjay. During cross examination, it is admitted that he interrogated both the accused outside the court room in the presence of public persons but did not join anyone at the time of their interrogation. It is denied that he prepared the arrest papers of the accused of his own.
8.18. PW18 ASI Raj Kumar joined the investigation on 2/11/2000 with IO SI Shiv Shankar Prasad and made search for accused persons. At about 11:30 pm, IO apprehended accused Jai Singh from main Mauj Pur Road and arrested him vide arrest papers Ex.PW18/A and Ex. PW18/B. Accused made disclosure statement Ex.PW18/C. Accused had been carrying one jute bag / sack tied with sutli and found containing sewing machine and gray color briefcase containing saree, shirt and pant etc which were seized vide seizure memo Ex.PW18/D. IO also prepared the site plan Ex.PW18/E on 18/10/2000. He has also proved the arrest papers of Deep Chand and Krishan which are Ex.PW18/F and Ex.PW18/G. 8.18.1. During cross examination, he has admitted that accused Jai Singh was arrested from public place but no public person was got joined into arrest and recovery proceedings. It is further deposed that IO prepared the site plan of the place of arrest and recovery of the FIR No. 281/2000 State Vs. Jai Singh etc. 23/51 spot, but he did not remember as to whether he signed the site plan or not. It is further deposed that they reached PS at 11:45 pm and recorded the disclosure statement at 12.00 midnight and other documents were also prepared there. It is further deposed that he did not disclose to IO in his statement Ex.PW18/DA that IO recorded the disclosure statement and prepared seizure memo of sewing machine etc in his presence. At the time of arrest of accused Jai Singh, his age was about 65 years.
9. DW1 Trilok Chand has deposed that Sant Ram had purchased H.No. 29/11, Main Road, Babur Pur, Shahdara, Delhi from his uncle Jai Singh (now deceased) and accused Sant Ram, Deep Chand and Jai Singh had been residing in the same house for the last 32-35 years. It is further deposed that Prakesh Chand, who is the uncle of Sant Ram, wanted to grab this property. He witnessed the quarrel between the parties between Prakesh Chand and Sant Ram and others on 10/10/2000 and police took both parties to PS in his presence. His statement was recorded in the PS in this case which is Ex.DW1/A (objected to being photocopy). Both parties were apprehended u/s 107/151 Cr.P.C. It is further deposed that accused Sant Ram and Deep Chand are actual owners of the disputed property. It is admitted that he has deposed in complaint case on behalf of accused.
9.1. During cross examination, he has admitted that Prakesh Chand was not present at the spot on 10/10/2000 at the time of FIR No. 281/2000 State Vs. Jai Singh etc. 24/51 incident. It is further admitted that there was nothing when he reached the spot but he did not know as to whether articles were loaded on a tempo. He did not know as to whether room in dispute belonged to Prakesh Chand or that Ashiq Ali was sleeping in the said room during the night of incident or that he sustained stab injury. It is further admitted that neither sale purchase of the disputed property took place in his presence nor he witnessed it. It is admitted that he went to PS on next day of incident and even heard about the theft of articles from disputed premises when he came out of his house and locality persons disclosed this fact to him.
10. I have heard the arguments and perused the record. Before going into the merit of the facts of this case, I am taking up the core argument of Ld. Defense Counsel that it was a simple case of the theft of certain articles allegedly stolen by the accused persons as alleged by PW5 Ashiq Ali, but all the accused have been charged for committing dacoity without any evidence of such offence and they are entitled for acquittal on this ground alone. It is further argued that the then Ld. Session Judge had observed the allegations of robbery in the case when this case was initially committed to the Session Court u/s 209 Cr.P.C. and those facts have not been charged despite leading evidence on record and their trial under dacoity is per se not authentic and accused persons are entitled for acquittal on this also. To determine the arguments of the Ld. Defense Counsel, it is material to go through the legal definition of theft and robbery as under:
FIR No. 281/2000 State Vs. Jai Singh etc. 25/51 Section 390 IPC. Robbery:- In all robbery there is either theft or extortion. When theft a 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 of 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 the there to deliver up the things extorted.
Explanation: The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, or of instant hurt, or of instant wrongful restraint.
391. Dacoity.- When five or more persons conjointly commit or attempt to commit 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".
A combined and joint reading of both sections would make it clear that every "theft" is robbery if there is instant fear of death, hurt or wrongful restraint at the time of committing such theft or at the time of taking away of such stolen property. The theft automatically became robbery if above said instant fear of death, hurt of wrongful restraint is exercised during that theft and if the number of robbers is five or more, than it becomes dacoity. The argument of the Ld. Defense Counsel that it was a case of simple theft is correct, but this theft was FIR No. 281/2000 State Vs. Jai Singh etc. 26/51 coupled with the physical harm and wrongful restraint of Ashiq Ali, due to it became robbery and converted to dacoity being committed by 7 accused including one deceased Jai Singh. The number of the accused was seven and gathering was for unlawful purpose due to it was unlawful assembly and one of the member i.e. Tejveer also used of weapon during the incident which is sufficient to attract the definition of Section 390 IPC. The statement of PW5 u/s 161 Cr.P.C. relied upon by the accused during cross examination as Ex.PW3/DA bore all such descriptions in what manner the force was used by the accused persons during the incident including use of knife and also threat to his life in case of leaving the spot. This statement of PW5 Ashiq Ali has proved that force was used during the incident and it is sufficient to prove the ingredients of Section 390 IPC punishable u/s 395 IPC in case of 7 numbers of assailants. As such, the argument of the Ld. Defense Counsel has no substance.
11. Ld. Counsel for the accused has further argued that a civil suit for recovery of possession with regard to same property has already been decreed in favor of the accused and the findings of Ld. Civil Court in favor of accused that complainant party had dispossessed the accused persons from the premises are binding upon this court and accused persons are liable to be acquitted on this ground alone. It is further argued that the findings of the Ld. Trial Court are binding upon the criminal court if the same are pertaining to the same dispute and in this case also, the findings are in favor of the accused due to same are liable to be considered. On the other hand, Ld. APP for the FIR No. 281/2000 State Vs. Jai Singh etc. 27/51 State has argued that the findings of the Ld. Civil Court are not binding upon this court as both the proceedings are to be determined on different legal procedures, Civil Proceedings are to be decided on probabilities, whereas Criminal Proceedings are to be determined on the basis of burden of proof, but lapses in Civil Litigation cannot be made available to Criminal Case in which witnesses may prove the offence or facts which could not be proved during Civil Litigation, due this plea taken by the accused is not sustainable.
12. I have gone through the plea of both parties. It is not disputed proposition of law that the Civil Litigation is to be decided on the basis of preponderances of probabilities which is always shiftable and keep on shifting till discharge of ones to prove a fact, whereas a Criminal Case is to be proved by discharging burden of proof which is not shift-able and always lied upon the prosecution. It is quite possible that the prosecution may discharge the burden of proof to prove a criminal charge, whereas parties to Civil Litigation may not discharge such onus to prove a fact by preponderance of probabilities and led to failure in Civil Litigation. In fact, the different procedures to prove different types of litigations leave no room that findings of one court in one type of proceedings are not binding on the court dealing with different jurisdiction. However, it is material to see the legal proposition to this effect as under:
13. Ld. Defense Counsel for the accused has relied upon the judgment titled V.M. Shah v. The State of Maharashtra & Anr., JT FIR No. 281/2000 State Vs. Jai Singh etc. 28/51 1995 (6) SC 433 in which it is held as under:
As between the civil court and the criminal proceedings, the criminal matters should be given precedence. No hard and fast rule can be laid down but the possibility of conflicting decisions in the civil and criminal courts is not a relevant consideration. Law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other or even relevant except for certain limited purposes, such as sentence or damages. The only relevant consideration is the likelihood of embarrassment. Another relevant factor to be notes is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should await till everybody concerned has forgotten all about the crime. Public interest demands that criminal justice should be swift and it should ensure that the guilty is punished while the events are still fresh in public mind and that the innocent should be absolved as early as it consistent with fair and impartial trial. Another reason is that it is undesirable to let the things slide till memories have grown too dim to trust. This, however, is not a hard and fast rule. Special considerations obtaining in any particular case may make some other course more expedient and just. Therefore, each case has to be considered on its own facts. Therefore, the court held that the findings of the civil court get precedence over the findings recorded by the trial court, in particular, in summery trial for offences like Section 630 of Company Act.
14. Contrary to it, it is held in AIR 2010 SC 3624, Kishan Singh (D) through LR's v. Gurpal Singh & Ors. that:
19. Thus, in view of the above, the law on the issue stands crystallized to the effect that the findings of fact recorded by the civil court do not have any bearing so far the criminal case is concerned and vice-verse. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof reasonable beyond doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of section 41 to 43 of the Indian Evidence Act, 1872 dealing with the relevance of previous Judgments in subsequent cases may be taken into consideration. However, in this case, the FIR was quashed which was lodged after failure in civil litigation being vindictive. It is pertinent to mention here that the judgment titled V.M. Shah v. The State of Maharashtra & Anr, JT 1995 (6) SC 433 was also citied and considered by the court.
15. It is further held in Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr. (2005)4 SCC 370 as under:
FIR No. 281/2000 State Vs. Jai Singh etc. 29/51 Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final and binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein.
In view of the above said law laid down by the Hon'ble Apex Court, it stands proved that the findings of the civil courts are not bindings on the criminal court. Similarly, the civil judgment in this case, in favor of accused is not binding on multiple grounds. Firstly, this judgment is Under Section 6 of Specific Relief Act which is a summery procedure and is to be decided without deciding the title of the parties and just on the basis of the last possession of the parties on the property. In this case also, PW1 Brij Pal has already deposed before this court that the police got restored his possession over the suit property on 18.10.2000 and civil suit was also decided on the similar fact pertaining to this fact, however, it could not be adjudicated in this civil case that the complainant herein was not dispossessed in the intervening night of 10/11.10.2000. Even the star witness of the prosecution i.e. PW5 Ashiq Ali was not examined there to dispute the claim of the accused there, whereas he was not only eye witness of the incident but also a victim of the incident and was slapped and pointed knife during the incident besides extending threats to life. As such, in the absence of the examination of the PW5 Ashiq Ali, the incident of taking over the possession of the room by the accused from the complainant through police could not be disputed. Even otherwise, the accused have not cross examined the prosecution FIR No. 281/2000 State Vs. Jai Singh etc. 30/51 witnesses properly during their re-examination before this court after committal of this case to this court u/s 323 Cr.P.C. The testimony of PW6 Smt. Shimla is virtually un-rebutted in which she has deposed that she was residing in the premises for the last many years with her husband and was also doing tailoring work. It also could not be disputed that PW5 Ashiq Ali told her that accused committed the robbery of her articles and took into possession of the room in his possession. PW1 Brij Pal has also proved these facts duly corroborated by Ashiq Ali. The testimony of PW6 is very well sufficient, in the absence of any rebuttal during cross examination, that she along with her husband was in possession of the room in dispute and subsequent facts disclosed to her by Ashiq Ali are also admissible and relevant under Section 6 of Evidence Act being the facts of same series of event. The recovery of the sewing machines, briefcase and some other robbed articles from accused Jai Singh (now deceased) has also corroborated the testimonies of PW1, PW5 and PW6. As such, the findings of the Civil Court are different to decide the charges against the accused and the findings of the Civil Courts cannot be given binding effect.
16. Ld. Counsel for the accused has further argued that the statements of witnesses have been recorded multiple times. Firstly the statements of prosecution witnesses were recorded before Ld. MM before committal of the case to this court and, Secondly statement have been recorded again after committal of case, but both the statements are different and have failed to prove the FIR No. 281/2000 State Vs. Jai Singh etc. 31/51 charges against the accused and rather have created a doubt in the case of the prosecution. It is further argued that the statements of the witnesses recorded before the court of Ld. MM are to be considered to adjudicate the charges against the accused and these statements have failed to prove any offence against accused whereas the subsequent statements recorded before this court is just an extension to earlier statements and cannot be used exclusively to decide the charges against the accused and court ought to acquit the accused on the basis of the earlier statements of witnesses. It is prayed that accused are liable to be acquitted without much consideration of subsequent statements of witnesses and they are entitled for acquittal on the ground of benefit of doubt.
17. On the other hand, Ld. APP for the State has opposed these submissions of Ld. Defense Counsel and has argued that the statements recorded before the court are only part of evidence to determine the charges against the accused and the earlier statements only could be used only to confront them subsequently similar to the statement under section 161 or 164 Cr.P.C. but charges against the accused may not be determined exclusively on the basis of these statements and arguments of the Ld. Defense Counsel have no force. It is further argued that the earlier testimonies of the witnesses have some contradictions but those contradictions have not been brought on record by the accused by putting those statements during cross examination of witnesses and now these contradictions are liable to be discarded.
FIR No. 281/2000 State Vs. Jai Singh etc. 32/51
18. I have heard the arguments and gone through the testimonies of the witnesses. This case was initially tried by the court of Ld. MM and thereafter, it was committed to this court u/s 323 Cr.P.C. on coming on record the evidence of charges u/s 395 IPC. Thereafter, not only fresh charges have been framed against the accused but also the testimonies of all witnesses have been recorded afresh. If statements of all the witnesses have been recorded afresh, then those statements which recorded prior to committal have only limited consideration and have no much evidentiary. One other set of statements is also recorded by the police u/s 161 Cr.P.C. and those statements have also limited consideration as of statements recorded by the Ld. MM during investigation and is always subject to proving by the witness making it and may be used to confront the witness, who improved upon the statement subsequent, in terms of section 145 of Evidence Act. In fact, such statement cannot be considered solely to adjudicate the charges against the accused. The statement given to the police has no evidentiary value and law about such statement is well settled by various pronouncements.
19. The Hon'ble Supreme Court of India has held in Ashok Debbarma V. State of Tripura, (2014) 4 SCC 747 as under :
"22. the mere fact that the appellant was named in the statement made before the police under Section 161 Cr.PC and due to this omission, evidence of PW10 and PW13 tendered in the court is not reliable, cannot be sustained. Statements made to the police during investigation were not substandard piece of evidence and statements recording u/s 161 Cr.PC cannot be used only for the purpose of contradiction and not for corroboration. In our view, if evidence tendered by witness in the witness box his credibility and reliability, that evidence cannot be rejected merely because of a particular statement made by witness before the court does not find a place in the statement recorded u/s 161 Cr.PC. Police officer recorded statements of witnesses in an incident where 15 persons lost their life, FIR No. 281/2000 State Vs. Jai Singh etc. 33/51 23 houses were set ablaze and a large number of persons were injured. PW10 lost his real brother and PW13 lost his daughter as well his wife and in such a time of grief they would not be a normal state of mind to recollect who all were miscreants and their names. Witnesses may be knowing the persons by face, not their names. Therefore, the mere fact that they had not named accused persons in Section 161 Cr. PC Statements, at that time, they would not be a reason for discarding the oral evidence, if their evidence is found to be reliable and credibility.
20. The law of contradiction has been considered by the Hon'ble Supreme Court in V. K. Mishra And Another v. State of Uttrakhand And Another (2015) 9 SCC 588 as under:
16. Section 162 Cr.P.C. bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. the statement made by a witness before the police under Section 161 (1) Cr.P.C. can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to witness on what he has stated a the trial as laid down in the proviso to section 162(1) Cr.P.C. the statements under section 161 Cr.P.C. recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose:
(i) of contradicting such witness by an accused under section 145 of the Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the court; and (iii) the re-examination of the witness if necessary.
17. The court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 Cr.P.C. "if duly proved" clearly show that the record of the statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross examination and also during the cross examination of the investigating officer. The statement before the investigation officer can be used for contradiction but only after strict compliance with section 145 of the Evidence Act this is by drawing attention to the parts intended for contradiction.
19. Under section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduce into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross examination. The attention of witness is drawn to that part and this must reflect in his cross examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need further proof of contradiction and it will be read while appreciating the evidence. If denied having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the FIR No. 281/2000 State Vs. Jai Singh etc. 34/51 deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention must be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defense wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction.
In view of the above said law, it stands proved that the statement given to the police is not a piece of evidence and the same may be considered only to confront a witness during examination and that too only after confronting the IO otherwise the same is of no use. Similarly, the statement recorded before the court which lost jurisdiction subsequently or the statement u/s 164 Cr.P.C. recorded by the Ld. MM is to be considered a previous statement in terms of Section 145 of the Evidence Act and may be considered only for the purpose of confronting the witnesses during examination before the court but cannot be considered statement main statement to determine the charges against the accused. Had it been so then there was no requirement of recording such statement afresh on committal of the case to the Session Court. The statements of the witnesses recorded before the court of Ld. MM may be considered u/s 145 of Evidence Act just to confront a witness until and unless there is some admission on the part of accused or otherwise. However, such statements cannot be considered exclusively to determine the charges against the accused. As such, the argument of Ld. Defense Counsel has no force that the testimonies of the FIR No. 281/2000 State Vs. Jai Singh etc. 35/51 witnesses recorded earlier are sufficient to consider the charges against the accused. However, if the statements of the witnesses not confronted them again during their re-examination before the court after committal of a case cannot be read into evidence. In the present case also, all the witnesses have been examined by this court again after recoding their statements before the Court of Ld. MM and opportunity for cross examination was also extended to the accused again, but accused either failed to cross examine witnesses substantially or to confront their earlier statements to the witnesses due to earlier statements of witnesses are not of much relevant to determine charges and subsequent statements of witnesses are only liable to be considered.
21. Now it is to be determined as to whether the prosecution has proved the charges against the accused or not. PW1 Brij Pal is the complainant who brought law into motion and Ashiq Ali is the main eye witness and victim of the incident. PW1 Brij Pal and PW6 Shimla have duly proved that they used to hand over the keys of the room in possession to him to sleep in their absence and room was provided by PW10 Prakesh Chand being in his job. Prakesh Chand has also corroborated this fact that the PW1 was provided a room and was being used by him to stay there. Though PW1 was the complainant of the case, yet he is not the eye witness of the incident and PW5 is the only eye witness to the incident. PW5 Ashiq Ali has duly proved that he was provided the keys of the premises in the intervening night of 10/11.10.2000 to him by PW1 and PW6 as they used to go to FIR No. 281/2000 State Vs. Jai Singh etc. 36/51 meet their children at Harsh Vihar. It is further deposed that during the night he was sleeping in the premises when accused persons forcibly entered into the premises and made him to sit in the corner of the premises on the point of knife by accused Tejveer and was also slapped and threatened to be killed if tried to run away. It is further proved that accused took away the belonging of the complainant and put their articles to prove their possession over the premises. This fact has also been corroborated by the PW1 and PW6 that they returned back on the next day morning at about 8:00 am and came to know through PW5 that their articles had been stolen by the accused persons. It is further deposed that they reported the matter to police but police did not take any action till 18/10/00 when this case was lodged. PW1 has deposed during examination in chief that the possession of the premises was restored to him after 8 days and witness has not been virtually cross examined on this aspect by the accused and only one question was put to him that he did not remember as to whether his statement was recorded by the police regarding restoration of the possession of the said room to him after 8 days or not. No counter suggestion has put to the PW1 that he was not restored possession of the room 8 days after the incident or that he was not dispossessed by the accused persons. As such, this fact remained un-rebutted that the complainant was dispossessed by the accused and shall be considered that he was earlier in possession of the room and was dispossessed on the day of incident and thereafter his possession was restored by the police after 8 days of the incident as deposed by him during the examination which was the basis of FIR No. 281/2000 State Vs. Jai Singh etc. 37/51 the restoration of the possession u/s 6 of Specific Relief Act.
22. Further, PW5 Ashiq Ali has deposed during his examination in chief that he was sleeping in the room when all the accused trespassed into the room. He has elaborated that accused Sanjay, Kishan and Jai Singh (now deceased) overpowered him, accused Santu, Sant Ram and Deep Chand caught him and accused Tejveer pointed a knife on his chest and extended threats to kill if tried to run away from the spot and took away all the articles from the room. This witness has not been cross examined by the accused on this aspect to rebut his testimony. He has further deposed that accused put 14- 15 milk drums in the premises to prove their possession and the same have been seized by the accused to corroborate the testimony of the PW5 and accused have not put even a single suggestion to this witness to the effect that milk drums did not belong to them or not recovered in the manner as deposed by PW5. Contrary to it, PW16 SI Shiv Shankar Prasad has been put a suggestion in affirmative that these milk drums belonged to accused Sant Ram which has fortified the deposition of the PW5. As such, the testimony of PW5 could not be disputed by the accused. Similarly, PW9 Rattan Lal has also corroborated this fact that he visited the spot and noticed 8-10 milk drums lying on the floor of the room and there is no suggestion adverse to it.
23. Besides it, PW6 Shimla has also deposed that when she came back to her home, she found that a cash of Rs.22,200/-, jewellery, FIR No. 281/2000 State Vs. Jai Singh etc. 38/51 briefcases, sewing machines, utensils etc had been robbed from the premises and PW5 informed her that those articles were robbed by the accused persons. Again accused have not put even a single suggestion that no such articles were robbed by the accused persons. PW12 Mool Chand has also corroborated to PW5 that on 10/10/2000, at about 12:00/1:00 midnight, he saw that 20-25 persons had been loading the material containing wheat container, sewing machines, two cylinders in tempo and all the accused were inside the disputed room and Ashiq Ali was surrounded by accused and Tejveer put a knife on Ashiq Ali. It is further deposed that all the accused removed the articles and put their own articles like milk drums in the premises. He also made a complaint to the police but police did not take any action and rather took him to PS. Again there is no cross examination of this to such facts and amounts to admission of the facts on behalf of accused. As such, all such oral evidence cannot be brushed aside just for the reason that the witness has been the documents of earlier civil suit which are Ex.PW12/D1(colly.) especially when this witness was not examined before the Civil Court. In fact, the testimonies of the PW1, PW5, PW6, PW9 and PW12 have duly proved that the accused dispossessed the PW1 and PW6 out of their settled possession after robbing their article out of the possession of PW5 on the point of knife.
24. Further, Ld. Counsel for the accused has argued that there was a delay of 8 days in lodging of this FIR and it is fatal to this case and accused are entitled for the benefit of doubt, as false implication FIR No. 281/2000 State Vs. Jai Singh etc. 39/51 of accused persons may not be ruled out. This argument has been strongly opposed by Ld. APP for State. It is not disputed proposition of law that an intentional delay in lodging FIR or reporting a matter to the police is to be considered fatal, but this delay must be just to improve upon the allegations of the incident or with intention to falsely implicate an innocent person. However, if delay has been explained by the prosecution without any blame attributed to the complainant, then no such delay cannot be considered fatal to the case. In this case, one initial DD No. 42A was lodged against the incident in the intervening night of 10/11.10.2000 at about 1:30 am itself and this DD was against the attempt of forcible possession of the room. It was further alleged that assailants had been removing the articles here and there. In pursuance of that DD entry, Kalandra proceeding u/s 107/151 Cr.P.C. were initiated which have been admitted by Prakesh Chand. PW18 ACP Hem Chand has also proved that he visited the spot on the day of incident and has admitted Kalandra Proceedings Ex.PW14/DA1 to Ex.PW14/DC and PW15 Retd. SI Harvir Singh has also corroborated this fact. PW10 Prakesh Chand and PW9 have also proved that they were detained by the police and thereafter PW10 was released on bail, but his sons were sent to custody. If the complainant was sent to judicial custody and PW1, PW5 and PW6 repeatedly visited the PS regarding the incident, but police did not lodge their complainant, then it is sufficient explanation to this delay. Complainant was supposed to bring the incident into the notice of the police and it was duly brought into notice in the same night by the way of DD No. 42A, but police FIR No. 281/2000 State Vs. Jai Singh etc. 40/51 preferred to dispose off the entire matter by lodging of Kalandra Proceedings against both parties instead of taking action under the provisions of IPC and complainant cannot be blamed for it. On the other hand, PW10 has proved that a number of telegrams were sent to the higher Police Authorities and the lodging of this FIR also may be result of those telegrams which are Ex.PW10/1 to Ex.PW10/8. Even a complaint which is Ex.PW10/9 was also got received with the Office of the ACP concerned on the same day of incident i.e. 11/10/2000 by PW10 Prakesh Chand. As such, it cannot be said that the complainant was sitting idle after the incident. Rather he along with his owner was taking constant steps to bring the law into motion and FIR was lodged on 18/10/2000 when the police not only took action into the matter but also restored the possession of the room to the complainant and also arrested the accused persons. As such, the delay has been explained and is not fatal to this case.
25. Ld. Counsel has argued that there was also a delay in recording the statement of PW5 and his statement was not recorded upto 18/10/2000 which suggests that he is manipulated witness of the prosecution, but this argument has no force. PW1 has categorically admitted during his examination that he was accompanied with complainant and also visited the PS. If police did not prefer to lodge this case, then the delay in examination of PW5 was obvious and was also beyond the control of the witness and is not fatal to this case.
FIR No. 281/2000 State Vs. Jai Singh etc. 41/51
26. Accused persons were arrested in this case and PW16 has proved the arrest of accused Sant Ram in the presence of PW5 vide arrest papers Ex.PW4/A and Ex.PW4/D and accused made his disclosure statement Ex.PW4/B. Thereafter, accused Tejveer was apprehended vide arrest papers Ex.PW1/D and Ex.PW1/E and followed by his disclosure statement Ex.PW16/A. Tejveer disclosed the names of other accused persons. However, Jai Singh (now deceased) was apprehended on 2/11/2000 vide arrest papers Ex.PW18/A and Ex.PW18/B which followed by his disclosure statement Ex.PW18/C and also recovery of robbed briefcase containing the clothes and sewing machine vide seizure memo Ex.PW18/D. PW5 has deposed that accused put their milk containers in the premises after the incident which were seized vide seizure memo Ex.PW5/A as well as Ex.PW1/C which are Ex.P2. The milk drums were seized with chain and locks as per the entry of MHC (M) in Register Number 19 as Ex.PW11/A and this recovery was deposited on 18/10/2000 by IO SI Shiv Shankar. The statement of Ashiq Ali already Ex.PW3/DA (during testimony earlier) has also corroborated this robbery. The recovery from the accused Jai Singh after the incident is relevant in terms of Section 8 of Evidence Act.
27. Ld. Counsel for the accused has argued that this recovery is not reliable as the MHC(M) has not produced the briefcase containing the articles before this court and manipulation in record with regard to this recovery may not be ruled out. However, this argument has no force. It is beyond explanation if a robbed sewing FIR No. 281/2000 State Vs. Jai Singh etc. 42/51 machine was recovered along with the other articles like briefcase and clothes of complainant seized vide seizure memo Ex.PW5/A and sewing machine has been produced before the court during evidence, then why other articles were supposed to be concealed by the MHC (M) and what purpose was going to be served by this concealment especially when seizure memo and RC entry was proving the recovery. As such, non-production of the briefcase before this court cannot be considered fatal to this case.
28. Even otherwise the court cannot be made handicap by the investigating agency by its omissions during investigation or lapses during trial. The observation of the Hon'ble Supreme Court is relevant to this effect. It is observed in Dayal Singh v. State of Uttaranchal (2012) 8 SCC 263 as under:
In a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general. Where our criminal justice system provides safeguard of fair trial and innocent till proven guilty to an accused, there is also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and fair chance to prove to the prosecution. Then alone can law and order be maintained. The courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge. During the course of the trial, the Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there is court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subverted. For truly attaining this objective of a "fair trial", the court should leave no stone unturned to do justice and protect the interest of the society as well.
In fact, the lapses on the part of the IO or MHC (M) in making entries are not fatal to this case. Had the recovery of the sewing machine or briefcase been not made then there was no occasion to the FIR No. 281/2000 State Vs. Jai Singh etc. 43/51 complainant to get the sewing machine released on superdaari. As such, this recovery is reliable and has proved the incident.
29. Ld. Counsel for the accused has further argued that the other accused were arrested in pursuance of disclosure statement of Sant Ram and Tejveer due to there is no evidence against them and they are entitled for the benefit of doubt. However, the arrest of the accused in pursuance of disclosure statement does not absolve their liability. PW5 was the eye witness of the incident and has duly proved their presence at the spot and PW10 and PW12 have duly corroborated this fact that the accused were involved during the incident and have been identified as assailants. In fact, all the facts have duly proved beyond doubt that accused were involved in the incident and they were not merely arrested in pursuance of disclosure statements of co-accused and argument has no substance.
30. Ld. Counsel for the accused have further argued that the testimonies of the witnesses have a number of the contradictions which renders the case of the prosecution unreliable and accused are entitled for the benefit of doubt. On the other hand, Ld. APP for the state has strongly opposed these submissions and has argued that the testimonies of the PWs have only formal contradictions which are not going into the merit of the case to render the case of the prosecution unreliable. It is further argued that accused are not entitled for the benefit of doubt.
FIR No. 281/2000 State Vs. Jai Singh etc. 44/51
31. It is not disputed proposition of law if the testimony of a witness has material contradictions which render the case of the prosecution unreliable has to be considered. However, if the contradictions are of such nature which are not material and not going into the merit of the case, then those are liable to be ignored. Similar proposition has held in Bhajan Singh & Ors v. State of Haryana, (2014) 7 S.C.R.1 that while appreciating the evidence of a witness minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, may not prompt the court to reject the evident in its entirety. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labeled as omissions or contradictions". Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go the heart of the matter and shake the basic version of prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in statements of witnesses."
32. It is further held in Kunju Muhammed Alias Khumani and another v. State of Kerala, (2004) 9 SCC 193 that the contradictions/ omissions must be of such nature which materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements which do not affect the core of the prosecution case should not be made a ground to reject the evidence of the witness in entirety.
33. It is held in Bhagwan Jagannath Markad and Others v. State of Maharashtra (2016) 10 SCC 537 that "while appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind, the deficiencies, drawbacks and infirmities, to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the FIR No. 281/2000 State Vs. Jai Singh etc. 45/51 evidence. Section 155, Evidence Act, enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145, Evidence Act, lays down the procedure for contradicting a witness by drawing his attention to part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as contradiction. It is not every discrepancy which affects the creditworthiness and trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting the credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behavior of witnesses of a crime is not enough to reject evidence".
In view of the above said proposition of law, the contradictions which affect the core issue of the dispute are only relevant and are to be considered otherwise any truthful witness, whatsoever may, be cannot escape from such contradictions as it is very difficult to any human being to repeat exact words subsequently and repeatedly. PW1, PW5 and PW6 have duly stood by their testimonies to prove all the material allegations by and large and there is no reason to discard their testimonies.
34. Ld. Counsel for the accused has further argued that complainant has failed to prove any material on record to prove his possession over the premises on the day of incident and PW14 who visited the spot of incident in the intervening night of 10/11.10.2000 also did not find any sign of illegal dispossession of the complainant from the premises by the accused and testimonies of witnesses have failed to prove the innocence of accused. However, this argument has no force. PW5 is the eye witness of the incident who has stood by his testimony despite cross examination by the accused. The testimony of an eye witness cannot be discarded because of the FIR No. 281/2000 State Vs. Jai Singh etc. 46/51 testimony of a police officer who was not present at the spot and also failed to take appropriated action against the incident except lodging of a Kalandra u/s 107/151 Cr.P.C. just to hush up the matter. It is beyond explanation if no incident ever taken place at the spot, then why PW14 lodged Kalandra against the incident and again why PW14 directed to lodge an FIR on 18/10/00 against the incident. This conduct of the PW14 has proved beyond doubt that his testimony cannot be given preference over the testimony of PW5 and argument has no force.
35. Ld. Counsel for the accused has further argued that it is not safe to rely upon the single testimony of the PW5 to convict the accused without corroborated from any other witness and accused are entitled for benefit of doubt. However, this argument has no force. There is no bar to consider the testimony of a single witness to convict the accused provided testimony must be reliable and section 134 of Evidence Act has prescribed this proposition of law. Even various judgments have also defined this proposition in various judgments. The observations of the Honb'le Supreme Court is relevant to this effect. The Hon'ble Supreme Court has divided the reliability of witnesses in three categories as observed in Vadivelu Thevar v. State of Madras AIR 1957 SC 614 as under:
i. Wholly reliable.
ii. Wholly unreliable and iii. Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way, it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no FIR No. 281/2000 State Vs. Jai Singh etc. 47/51 difficulty in coming to its conclusion. It is in the third category of cases that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.
In view of this judgment, plurality of the witnesses is not a necessary requirement and if the testimony of a single witness is reliable then it may be totally relied upon to convict an accused. In the present case, PW5 is the eye witness and has given the description of the incident in natural manner and PW1, PW6, PW10 and PW12 have duly corroborated him and there is reason to discard their testimonies just to give the benefit of doubt to accused. As such, the judgment titled State of NCT of Delhi v. Amit Kumar, 2016 [3] JCC 1784 relied upon by the Ld. Defense Counsel is not applicable on the facts herein.
36. So far the benefit of doubt to accused is concerned, the benefit of doubt is not symbolic but it must be material as held in AIR 2003 SC 3609 titled State of Punjab v. Karnail Singh in Para 12 that "exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroying social defense. Justice cannot be made sterile on the plea that it is better to let hundred of guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law as held Gurbachan Singh v. Satpal Singh & Ors. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial: if a case has some flaws in evidence because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, is not fetish- A judge does not preside over a criminal trial, merely to see that no innocent man is punished.
A judge also presides to see that a guilty man does not escape. Both are public duties".
FIR No. 281/2000 State Vs. Jai Singh etc. 48/51 As such, accused is not entitled for the benefit of doubt for such minor contradictions and the judgment titled Rakesh Kumar @ Mukri v. State of NCT of Delhi, 2007 [2] JCC 1636 relied upon by the Ld. Defense Counsel is not applicable on the facts herein. As such, accused persons are not entitled for the benefit of doubt.
37. Further, all the accused have been charged u/s 149 of IPC and presence of an accused part of that unlawful assembly gathered with common object is sufficient to hold them guilty. It is held in Yunis Alias Kariya etc. v. State of Madhya Pradesh, AIR 2003 SC 539 that the presence of accused as a part of an unlawful assembly is sufficient for his conviction. PW5, PW10 and PW12 have duly proved the presence of the accused together during the incident and each and every accused is liable by the virtue of Section 149 IPC for the offence committed by anyone. Even the use of knife by any member of the assembly made everyone liable for the same offence.
38. Now come to the statement of the DW1 Trilok Chand who has deposed that Prakesh Chand wanted to grab the property of the Sant Ram due to he picked up a quarrel in the intervening night of 10/11.10.2000 and a kalandra u/s 107/151 Cr.P.C. was lodged against both parties. He has proved his statement Ex.DW1/A recorded in Kalandra proceedings as per which complainant party tried to possess the room forcibly, but his testimony is not reliable to prove this fact. He has admitted during the cross examination that there was nothing at the spot when he reached there and this fact FIR No. 281/2000 State Vs. Jai Singh etc. 49/51 suggests that he reached the spot after the incident. Even he has admitted that he did not know whether room belonged to Prakesh Chand or that Ashiq Ali was sleeping in the room on the night of incident. He is the associate of the accused Deep Chand and even visited PS to support him which suggests that his testimony is just to save him and his statement Ex.DW1/A is against his admissions made during cross examination before the court. As such, this defense is after thought.
39. Similarly, the absence of knife injury to Ashiq Ali is also not fatal to this case. MLC of Ashiq Ali which is Ex.PW8/A has proved the incident. He was taken to hospital by police official with history of assault and it is beyond explanation, if he was not present at the spot as argued by the Ld. Defense Counsel, then how his MLC was got prepared by the Police on the same day. Though, PW5 did not sustain fresh visible injury, yet his presence at the spot stands proved by this MLC and has fortified his testimony. The sustaining the injury by the PW5 was not necessary to prove the offence of dacoity being not having such ingredient of the offence. As such, the arguments led by the defense are not sustainable.
40. Keeping in view of the facts and circumstances of the case, I am of the considered opinion that all the accused in furtherance of their common object committed the house trespass and committed dacoity of the articles from the room belonged to Brij Pal and all accused (except Jai Singh who has expired and case has abated FIR No. 281/2000 State Vs. Jai Singh etc. 50/51 qua him on 02/02/2015) are hereby convicted u/s 395 and Section 457 r/w 149 IPC.
41. So far the offence u/s 506 r/w 149 IPC is concerned, there is no evidence on record to this effect and even criminal intimidation is also covered under the definition of robbery / dacoity and accused are not separately liable for this offence. PW5 was put under instant fear of hurt or injury and it is not separable from Section 395 IPC. As such, accused are not liable for this offence and are acquitted for charges under this Section. Bail bonds of accused cancelled. Surety of accused are discharged. File be consigned to RR.
Announced in open court (Devender Kumar)
Today on 23.09.2017 Additional Sessions Judge-03
(NE): Karkardooma Courts, Delhi.
FIR No. 281/2000 State Vs. Jai Singh etc. 51/51