Delhi High Court
Raj Kumar vs State Of Nct Of Delhi on 4 July, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 5th April 2019
Decided on: 4th July, 2019
+ CRL.A. 922/2017
RAJ KUMAR. ..... Appellant
Represented by: Mr. R.N. Sharma and Ms.
Sonia, Advocates.
versus
STATE OF NCT OF DELHI ..... Respondents
Represented by: Mr. Ashok Kumar Garg, APP
for the State with SI Ashish, PS
S.B. Dairy
+ CRL.A. 950/2017
SATISH ..... Appellant
Represented by: Mr. Purvesh Buttan and Mr.
Fahad Imtiaz, Advocates.
versus
STATE ..... Respondent
Represented by: Mr. Ashok Kumar Garg, APP
for the State with SI Ashish, PS
S.B. Dairy
+ CRL.A. 976/2017
ISLAM ..... Appellant
Represented by: Mr. Rahul Sharma, Advocate.
versus
STATE NCT OF DELHI ..... Respondent
Represented by: Mr. Ashok Kumar Garg, APP
for the State with SI Ashish, PS
S.B. Dairy
+ CRL.A. 980/2017
MOHD. ZAIKI ..... Appellant
Represented by: Mr. Rahul Sharma, Advocate.
versus
STATE NCT OF DELHI ..... Respondent
Represented by: Mr. Ashok Kumar Garg, APP
for the State with SI Ashish, PS
S.B. Dairy
+ CRL.A. 1109/2017
SUNIL KUMAR ..... Appellant
Represented by: Mr. Aditya Vikram and Mr.
Vinash, Advocates.
versus
STATE ..... Respondent
Represented by: Mr. Ashok Kumar Garg, APP
for the State with SI Ashish, PS
S.B. Dairy
+ CRL.A. 1183/2017
RAJENDER ..... Appellant
Represented by: Mr. S.S. Handa and Mr. Shiva
Handa, Advocates.
versus
THE STATE GOVT OF NCT OF DELHI ..... Respondent
Represented by: Mr. Ashok Kumar Garg, APP
for the State with SI Ashish, PS
S.B. Dairy
+ CRL.A. 104/2018
PARVEEN GOYAL ..... Appellant
Represented by: Mr. K.Singhal, Advocate.
versus
THE STATE GOVT OF NCT OF DELHI ..... Respondent
Represented by: Mr. Ashok Kumar Garg, APP
for the State with SI Ashish, PS
S.B. Dairy
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
CRL.A. 922/2017
CRL.A. 950/2017
CRL.A. 976/2017
CRL.A. 980/2017
CRL.A. 1109/2017
CRL.A. 1183/2017
CRL.A. 104/2018
1. By these appeals, appellants Raj Kumar, Satish, Islam, Mohd. Zaiki,
Sunil Kumar, Rajender and Parveen Goyal challenge the impugned
judgment dated 6th September 2017 wherein the appellants Satish, Islam,
Mohd. Zaiki, Sunil Kumar and Rajender were convicted for offence
punishable under Section 395 IPC. Appellants Sunil and Satish were also
convicted for the offence punishable under Section 397 IPC and Raj Kumar
and Parveen Goyal were convicted for the offence punishable under Section
412 IPC in FIR No. 340/2011 registered at PS Shahbad Dairy. Appellants
also challenge the order on sentence dated 11th September 2017 directing
Satish, Sunil, Rajinder, Islam and Zaiki to undergo rigorous imprisonment
for a period of fourteen years and to pay a fine of ₹ 5000/- each and in
default to undergo simple imprisonment for a period of one year for the
offence punishable under Section 395 IPC, Satish and Sunil to undergo
rigorous imprisonment for a period of seven years and to pay a fine of ₹
5000/- each and in default to undergo simple imprisonment for a period of
one year for the offence punishable under Section 397 IPC and Raj Kumar
and Parveen Goyal to undergo rigorous imprisonment for a period of ten
years and to pay a fine of ₹ 50,000/- each and in default to undergo simple
imprisonment for a period of one year for the offence punishable under
Section 412 IPC.
2. Assailing the conviction, learned Counsel for Satish submits that
identification of Satish is disputable as Satish was not identified at the first
instance but during the trial while he was in custody. He further submits
that identification was also not possible as all alleged persons present inside
the factory were sitting head down which means that they could not identify
the assailants. SI Anuj Nautiyal in his testimony has deposed that he met
Lukhman and Manoj at Tihar Jail on 28th January 2012 before the TIP
proceedings thus creating doubt that the assailants were shown to the
witnesses. He further submits that the prosecution has failed to produce any
site plan of the place of occurrence in order to establish whether there was
electricity or not. The prosecution has also failed to link Satish with any
recovered vehicle. He further submits that Satish was arrested in FIR No.
326/2011 registered at PS Adarsh Nagar on 27th January 2012 and while
being produced in that case, the Investigating Officer of the present case
talked to him and sought PC remand and thereafter filed the application for
TIP proceedings. He submits that Tofi Ram did not recognize Satish in the
TIP proceedings but recognized him in court and did not recognize him in
the third instance. He further submits that no recovery was made from him
and he has been falsely implicated in the present case. He further submits
that offence punishable under Section 395 is not made out as there were only
3-4 persons and under Section 395 the minimum requirement is that of five
persons. The broken lock was also not seized in order to show forced entry
into the factory.
3. Learned Counsel for Sunil Kumar submits that there were four eye-
witnesses and all of them stated that they were tied down by the gamcha
while three of them stated that the assailants used knife or swords. He
further submits that no description of the assailants was given. He also
submits that Sunil was arrested in another case. As per the disclosure
statement which was recorded the only evidence to connect Sunil was the
fact that was already discovered on 14th December 2011 or disclosed by
Islam so there can be no fresh disclosure again. No eye-witness identified
the vehicle nor has the recovery been made at the instance of Sunil. SI Sonu
in his deposition stated that he broke the lock of the main gate, but the same
has not been seized. He further submits that Lukman has deposed that Sunil
was armed with a deadly weapon but only the evidence of identification by
Lukman is not sufficient to connect Sunil to the alleged robbery.
4. Learned Counsel for Islam and Mohd. Zaiki submits that statements
of most of the witnesses present at the time of the incident were recorded
after the arrest of Islam and after a lapse of almost three months from the
date of incident. He further submits that none of the four eye-witnesses gave
any clue about the description of persons who allegedly robbed the factory
in their statements recorded under Section 161 Cr.P.C. He submits that the
TIP of Islam and Mohd. Zaiki was also not conducted prior to the
identification in court. Reliance is placed upon the decisions of the Supreme
Court reported as (1980) 2 SCC 665 V.C. Shukla v. State, and (1998) 1 SCC
169 Raju alias Rajendra v. State of Maharashtra. Moreover, three out of the
four eye-witnesses failed to identify Islam or Mohd. Zaiki. He also submits
that Dina Nath who was examined in court as PW-3 and PW-6 has given
different versions of the incident on different dates, thus his testimony
cannot be relied upon. He further submits that as per the prosecution Islam
was arrested along with Rajender, Parveen Goyal and Raj Kumar on 14th
December 2011. The arrest memo of Islam shows that he was arrested on
14th December 2011 but it contains DD No.7B dated 15 th December 2011.
He further submits that as per the cross-examination of Inspector Ajay
Kumar, Islam was called for inquiry on 11th, 12th and 13th December and was
subsequently arrested on 14th December however there is no documentary
proof of his presence at the police station on 11 th, 12th and 13th of December.
It is the case of the prosecution that during the course of the raid on 14 th
December 2011, Islam pointed towards the vehicle bearing number HR 38 L
0648 parked at Shah Alam Bandh, which was allegedly used at the time of
dacoity. Islam was arrested around 5:30 P.M. and his personal search was
conducted immediately thereafter and the vehicle was recovered at around
11:00 P.M. and the ignition key of the vehicle was provided by him. This
seems improbable as after the personal search at around 5:30 P.M.,
everything was supposed to be in the possession of the police officials and
Islam could not have provided the ignition key at the time of seizure of the
vehicle. As per the deposition of Inspector Ajay under whose instruction
raid was conducted, when the recovery is made by the official of Special
Staff outside their office then the same is deposited at the police station
where the recovery is made, which further corroborates the fact that no
recovery was made in the present case. He submits that the contradictory
testimonies of the members of the raiding team further establishes the fact
that they did not visit Islam's house. He submits that a perusal of column 13
of crime team report only shows copper scrap weighing 4.5 tonnes and there
is no mention of slab or jali. The Investigating Officers did not try to
interrogate the neighbors or the public persons outside the factory to find out
if they had noticed any heavy vehicle on the night when the incident had
taken place. Furthermore, the fact that the vehicle belonging to Mohd. Zaiki
was used or that Islam was standing with Mohd. Zaiki and Rajender outside
or that they were present on the day of the incident has also not been
corroborated by any independent witness. The inaction on part of the
Investigating Officer of not seizing the attendance register and the stock
register also gives inference of false implication and there is no evidence on
record to show that the articles allegedly recovered belonged to Naveen
Sharma. Furthermore, no TIP of the article was conducted. He further
submits that as per the story of the prosecution, the owner Naveen Sharma
purchased the robbed articles from the entity Naveen Impex. The godown
address of Naveen Impex as mentioned in the invoice is the same as that of
Seema Dhatu Udhyog. Even, the Investigating Officer in his testimony has
deposed that the owner of Seema Dhatu Udyog and Naveen Impex are the
same person. He further submits that the case property does not bear any
distinctive mark which could show that the articles which were produced
before the Court were the same as the one allegedly stolen or recovered. The
same has been corroborated by the testimony of Tofi Ram, Dina Nath,
Naveen Sharma, Lukmaan and SI Anuj Nautiyal. He further submits that as
per the story of the prosecution after superdari of the articles, the photograph
of the articles were taken but perusal of the testimony of SI Anuj Nautiyal
and ASI Jag Narain clearly shows that both have failed to explain as to who
had taken the photograph and when. He further submits that Section 114(a)
of the Evidence Act would not be applicable due to the mode and manner in
which the recovery was made from Islam two months after the date of
incident without any independent corroboration. Broken lock of the factory
has not been seized by the police officials. Furthermore, the testimony of the
police witnesses shows that there was no DD entry/log book entry made by
them during the entire course of investigation. Even though there were
twelve eye-witnesses on the day of the incident only four have been
examined by the prosecution. Reliance is placed on the decision of the
Himachal Pradesh High Court reported as 2002 (3) ShimLC 282 Arjun
Singh & Ors. and State of H.P. v. State of H.P. and Jagdish Chand & Ors.,
decision of the Orissa High Court reported as 1983 CriLJ 1715 Rajkishore
Sahu and etc. v. The State and the decision of the Bombay High Court
reported as 1997 (2) MhLj 404 Vasant @ Roshan Sogaji Bhosale v. State of
Maharashtra.
5. Learned Counsel for Rajinder submits that there is no direct evidence
on record against Rajinder. Tofi Ram, Lukmaan and Harender in their
testimonies have admitted that Rajinder was not amongst the people present
at the time of the alleged incident. Dina Nath was examined thrice in court
and he has given different versions of the incident at all times and thus his
testimony cannot be relied upon. Furthermore, Dina Nath failed to identify
the other appellants in judicial TIP. The judicial TIP of Rajinder was not
conducted and dock identification was at the instance of his employer, with
the motive to misappropriate the case property that was got released by him.
His dock identification after two years holds no value. Reliance has been
placed on the decisions of the Supreme Court reported as (1998) 1 SCC 169
Raju alias Rajendra v. State of Maharashtra and AIR 1979 SC 1127 Kanan
& Anr v. State. He further submits that there was no recovery/corroborative
evidence to establish the guilt of Rajinder. Rajinder was interrogated
multiple times from 11th December 2011 to 14th December 2011 and his
confessional statement was involuntary, thereby making the alleged
recovery of copper slab highly doubtful. Reliance has been placed on the
decision of the Supreme Court reported as (2019) 3 SCC 770 Ashish Jain &
Ors. v. Makrand Singh & Ors. He further submits that the only substantive
evidence against Rajinder is the testimony of HC Ravi Rana and Inspector
Ajay. HC Ravi Rana simply testified in his deposition that 'from the
possession of accused Rajender one slab of copper etc...'. Inspector Ajay
did not testify that the alleged copper slab was recovered at the pointing out
and/or at the instance of Rajinder. It is highly doubtful that Rajinder despite
of his interrogation from 11th to 13th December 2011 continued to keep the
copper slap at the alleged site. Furthermore, Rajinder did not point to the
spot of recovery and therefore there was no recovery of a new fact on his
information. No site plan/sketch of the place of recovery/godown was
prepared, nor was any pointing out memo prepared by the Investigating
Officer. HC Ravi Rana admitted in his testimony that at the time of the
seizure, one person was sitting at the godown/kabaddi shop. It had two gates
which were open at that time. As per the testimony of Gurbax Singh,
Rajinder was not in possession of the said godown/kabaddi shop rather one
person namely Tikam was the tenant and in possession as per the rent
agreement dated 3rd October 2010. He further submits that the alleged
copper slab was not recovered at the pointing out of Rajinder and hence the
alleged recovery cannot be used under Section 27 of the Evidence Act. He
further submits that Naveen Sharma in his testimony admitted that the slabs
looted had no definite mark of identification and similar copper slabs were
being made by other factories as well and were available for sale in the
market. As per Section 9 of the Evidence Act, identification of case property
is relevant and ought to have been conducted so that corroborative evidence
about the allegedly recovered copper slabs was substantiated and proved. He
further submits that Inspector Ajay and SI Anuj Nautiyal admitted that no
judicial TIP of the case property was conducted and HC Ravi Rana admitted
that no seal was put by the Investigating Officer upon the allegedly
recovered copper slab. The photographs of the case property P1 to P10 were
not proved by any of the witnesses in court thereby creating suspicion that
the alleged recovery was planted. He further submits that Naveen Sharma
produced tax invoice to prove his ownership but since he failed to produce
any original document the same cannot be relied upon. Moreover, the tax
invoice pertains to raw scrap and it shows the seller and purchaser being the
same person. He also submits that it would not be fair to connect the
allegedly recovered copper slab having no distinct mark of identification
with the articles looted on 16th October 2011. Reliance is placed upon the
decision of the Supreme Court reported as (2018) 16 SCC 161
Navaneethakrishnan v. State.
6. Learned Counsel for Raj Kumar submits that the copper slabs
weighing 320 kgs and copper scrap weighing 120 kgs are alleged to have
been recovered at the instance of the appellant on 14 th December 2011 from
his Shop No. D-18, Mahindra Park, Near Jahangirpuri, Delhi. However, the
alleged recovery does not inspire confidence since there was no independent
witness present at the time of alleged recovery. Moreover, the police
witnesses have given contradictory statements with respect to the time and
manner in which the recovery was affected. As per the testimony of ASI
Surender Pal (PW-17) the property was recovered from the shop of Raj
Kumar. They reached his shop at 11:30 P.M. when the godown was opened
with a key by Raj Kumar himself. HC Ravi Rana (PW-20) in his
examination-in-chief stated that they reached the shop at 1:30 A.M. and the
shop was opened from the key recovered on the personal search of Raj
Kumar. However in his cross-examination he stated that the shop of Raj
Kumar was found open when they reached there but he could not identify
the place or portion from which the robbed articles were recovered from the
shop. He further added that he did not see any specific identification marks
on the articles recovered from the shop. SI Ajay Kumar (PW-21) stated that
they reached Raj Kumar's shop at about 1:30 A.M. on 15 th December 2011
and opened the shop from the key recovered on the personal search of Raj
Kumar. ASI Brijender Singh (PW-22) stated that they reached Raj Kumar's
shop at about 11:45 P.M. and no public person was found due to odd hours.
Learned counsel further submits that the recovery/seizure memo of the case
property does not bear any date which further casts doubt on the alleged
recovery of the case property from Raj Kumar. Learned Counsel also
submits that the case property was not sealed and the same was produced
before the Trial Court in an open condition. The case property also did not
bear any identification mark and the same has been admitted by witnesses
Tofi Ram, Deena Nath, Ct. Sandeep, Naveen Sharma, Lukman, Harinder,
ASI Madan Lal, ASI Lakhwinder, Mahender Pratap and SI Anuj Nautiyal.
The prosecution has not been able to prove that the case property was the
subject matter of the present robbery or that Raj Kumar had knowledge that
the same was robbed property. He further submits that the case property is
easily available in the market and the same is alleged to have been recovered
on 15th December 2011, two months after the date of occurrence with no
link being proved. He further prays that Raj Kumar is entitled to be
acquitted under Section 412 on the ground that prosecution has not been
able to prove knowledge on the part of Raj Kumar to the extent that the case
property which is claimed to have been recovered at his instance was robbed
property. Reliance is placed upon the decisions of the Supreme Court
reported as 1998 (2) JCC (SC) 168 Kochu Maitheen Kannu Salim v. State of
Kerala, MANU/SC/1031/2012 Pramod Bhanudas Soundankar v. State of
Maharashtra, MANU/SC/0213/1994 Achyut Das v. State of Assam ,
decisions of the Delhi High Court reported as 1998 (2) JCC (DELHI) 207
Chander Pal v. State, 1998 (1) JCC (DELHI) 173 Dinesh Kumar v. State of
Delhi, 2014 (1) JCC (DELHI) 433 Rajbir v. State, 2010 (2) JCC (DELHI)
1578 Kali Ram v. State and decision of the Punjab & Haryana High Court
reported as 2015 (2) RCR (Criminal) 613 Allauddin & Ors. v. State of
Haryana.
7. Learned Counsel for Parveen Goyal submits that the prosecution has
not been able to prove the recovery of four slabs and four copper wire jaali
as they have not examined any independent witness to prove the recovery.
Further, Parveen Goyal was present in the police station multiple times for
interrogation before the recovery which makes it difficult to believe that the
person who was visiting the police station would keep the looted articles at
his shop to allow the police to have an easy recovery. The seizure memo
does not mention the address of the shop which was opened by Parveen
Goyal further showing that the police could not prove that the recovered
articles were lying at the shop for which Mohd. Ilyas was examined. He
further submits that the recovery was made after a delay of about two
months from the date of the incident. He further submits that Parveen Goyal
was arrested on 14th December 2011 whereas the arrest memo bears the
details of DD No.7B recorded on 15th December 2011. Therefore the
recovery in pursuance of the disclosure statement dated 14 th December 2011
is highly doubtful as the DD No.7B was recorded on 15th December 2011.
Cross-examination of PW-21 further reveals that the number put by witness
on the sacks containing scrap was not visible on the sack produced in court.
He further stated that he could not tell who was the owner of the shop and
that the piece of copper scraps shown to him in court were not recovered
from any of the appellants. He further submits that the photographs of the
case property were shown to all the recovery witnesses that is PW-17, 20
and 21 and common fact emerged from it that is that none of the recovery
witnesses stated that the photographs contained the recovered articles from
Parveen Goyal or the other appellants. The articles allegedly recovered at
the instance of Parveen Goyal have not been identified by the recovery
witnesses as having been recovered from Parveen Goyal. He further submits
that the recovered goods were easily available in the market as has been
deposed by the employees of the factory in which the robbery/dacoity took
place. Furthermore, the alleged shop owner Mohd. Ilyas deposed that
Parveen Goyal was doing the work of old AC jallis of copper making it
highly possible that the copper slabs allegedly recovered from him were his
own property kept in the shop in the usual course of business. The
prosecution tried to prove the ownership for the copper slabs by producing
the invoice of copper scrap which is proved by Naveen Sharma, owner of
the factory. The invoice shows that it was issued by Naveen Impex, having
its godown at 45/24, Bawana Road. Prahlad Pur, Delhi-42 whereas the
robbery/dacoity also took place at the same address. It creates a doubt qua
the ownership of the copper scrap. Thus, the identification of the copper slab
itself becomes worthless, more particularly in the absence of TIP of case
property and production of an invoice which was apparently a false one. He
further submits that no offence under Section 411/412 IPC is made out
against Parveen Goyal. That on the basis of the alleged recovery coupled
with the presumption under Section 114(a) Evidence Act that when a person
is found in possession of stolen property, it can be presumed that either the
person himself stole the property or that he has received the goods knowing
them to be stolen, however the law does not permit a presumption that the
accused was aware or had reason to believe that the person who sold the
copper slabs to him was a gang member of dacoits. The prosecution has not
produced any such evidence to show that Parveen Goyal had any such
information to believe the same. For a conviction under Section 411 IPC the
prosecution must prove beyond reasonable doubt that the alleged recovered
articles were part of the stolen articles. The recovery witnesses did not
identify the case property to be the same as the one recovered from Parveen
Goyal thus not establishing the identity of the stolen articles. He further
submits that Parveen Goyal has no past antecedents and has not misused the
bail granted to him during trial. Reliance is placed on the decision of the
Supreme Court reported as (2014) 3 SCC 421 Birju v. State of M.P.
8. Learned APP with respect to Satish submits that Tofi Ram, Dina
Nath, Lukmaan and Harender identified Satish in court as one of the persons
who had entered the factory. He further submits that Sunil in his disclosure
statement submitted that the vehicle belonged to Satish and was used for
committing the robbery. Sunil further stated that Satish left his vehicle with
him 2-3 days before he was arrested in the Adarsh Nagar case. The vehicle
was found to be registered in the name of Munni Devi, mother in law of
Satish which further proves his involvement in the crime.
9. Learned APP with respect to Sunil submits that the disclosure
statement of Islam is reliable as it led to the recovery of copper slabs and a
vehicle No. HR 38 L 0648. He submits that Sunil has been identified by
Dina Nath. He further refutes the submission that in TIP only Lukman
identifies Sunil as he had been identified by Tofi Ram as well.
10. Learned APP with respect to Islam submits that he was arrested on
14th November 2011 by SI Ajay Kumar and his disclosure statement was
recorded which led to the recovery of copper slabs and a vehicle No. HR 38
L 0648. Furthermore, a pointing out memo was prepared at the instance of
Islam pursuant to which two bags of copper slabs and two bags of copper
wire bundles were recovered. In the personal search of Islam, one key ring
was recovered and not one key. He further submits that minor discrepancies
in the investigation conducted by the Investigating Officer cannot be a
ground for acquittal. He further states that VAT has been charged on the tax
invoice provided by Naveen Sharma therefore it cannot be false and
fabricated.
11. Learned APP with respect to Mohd. Zaiki submits that as per the
disclosure statement of Islam, vehicle No. HR 38 L 0648 belonged to Mohd.
Zaiki. Furthermore, the documents pertaining to the abovementioned vehicle
were recovered at the pointing out of Mohd. Zaiki from the ground floor of
his house. Mohd. Zaiki has been identified by Dina Nath. He further
submits that minor contradictions in the testimonies of the witnesses tend to
happen with passage of time. Dina Nath's statement before court was
recorded again after a period of four years thus minor contradictions are
bound to be there.
12. Learned APP for the State with respect to Rajender submits that the
submission that there is no direct evidence against Rajender is incorrect as
he has been identified by Dina Nath on 28 th February 2013 and 10th April
2017 in court. He further submits that Islam in his disclosure statement
admitted that most of the stolen property was taken away by Satish, Sunil
and Rajender who in turn sold it and gave him ₹ 1,00,000/-. He further
submits that recovery of 1 copper slab, 44 sacks of copper wire, two
enameled wire roll in four bags and two bags of copper scrap was made at
the instance of Rajender pursuant to his disclosure statement. Case of the
prosecution is further proved by the testimony of Tofi Ram who stated that
the particular kind of copper silli was only made by them in Delhi and no
person had purchased the same from them. He further submits that VAT has
been charged on the tax invoice provided by Naveen Sharma therefore it
cannot be false and fabricated.
13. Learned APP with respect to Raj Kumar submits that the stolen
property of the dacoity has been recovered from Raj Kumar. As per Islam's
disclosure, he sold three bags of the stolen copper jaali to Raj Kumar,
whereafter recovery of three slabs and three bags of wire jaali was made at
the instance of Raj Kumar. Case of the prosecution has been proved by the
police witnesses and by the testimony of Tofi Ram who stated that the
particular kind of copper sillli was only made by them in Delhi and no
person had purchased the same from them.
14. Learned APP for the State with respect to Parveen Goyal submits that
Islam in his disclosure statement has stated that he sold 13-14 bags of the
stolen copper jaali to Parveen Goyal. ASI Surender Pal in his testimony
deposed that Parveen Goyal had led them to a shop in Mustafabad, Delhi
and produced four slabs and four bags of copper wire and jaali. Moreover,
PW-17 identified Parveen Goyal and also the case property in the
photographs. He rebuts the submission of the counsel for Parveen Goyal
with respect to the arrest memo bearing details of DD No.7B recorded on
15th December 2011 on the ground that the same is a matter of record and
cannot be a ground for acquittal. He further submits that Parveen Goyal has
been rightly convicted under Sections 412 IPC as the case property of the
dacoity has been recovered from him.
15. Brief facts of the case are that on 16th October 2011 at about 4:15
A.M., information was received from wireless operator regarding theft of
copper by 15-16 people near Kali Mata Mandir. Aforesaid information was
recorded vide DD No. 8A (Ex.PW-4/A) and was assigned to SI Sonu. He
alongwith Ct. Amit went to Khasra No.48/24, 45/25, Seema Dhatu Udyog,
Village Prahlad Pur where he met the complainant Harinder who informed
that 8-9 boys had taken away slabs of two tonne and two and a half tonne
scrap by pointing out swords and knives. He recorded the statement of
Harinder wherein he stated that he was working as a labour in a factory at
Village Prahaldpur, Delhi where scrap of copper was melted. In the
intervening night of 15th/16th October 2011 at about 1:30 A.M., he along
with eight other labourers of the factory were working in the factory and the
three supervisors of the factory were sleeping in the camera room. When he
and Lukman were taking the bags of the scrap inside the factory, 3-4 boys
jumped on the bundle of scrap from the roof of the factory. Lukman raised
an alarm and ran towards the room where there was furnace. The boys
threatened him and one of them broke open the small gate of the main
factory and 4-5 boys entered the factory from there. They were armed with
swords and knives. The boys gathered all the labourers and three supervisors
in the hall of the factory and tied their hands and legs with the cloth. They
snatched the phones of Tofi Ram, Manoj and Chottu and took the key of the
main gate from Tofi Ram. They made them sit with their head down in the
hall. After some time, they heard the noise of the lock of the main gate
opening and a vehicle entering the factory. The boys loaded the copper slabs
and the bags containing the copper scrap in the vehicle and went away after
locking the main gate from outside. Tofi Ram went outside the factory and
informed the owner about the said incident. On the basis of this statement,
exhibited as Ex. PW-9/A, FIR No. 340/2011 (Ex.PW-4/B) was registered at
PS Shahbad Dairy for offences punishable under Sections 458/380/34 IPC.
16. Further investigation of the case was handed over to SI Mahender
Pratap who along with Ct. Amit went to Seema Dhatu Udyog, Khasra
No.45/25 and 45/24 Village Prahaladpur, Bangar where he met SI Sonu
Sharma, the complainant and other labourers and supervisor of the factory.
The Crime Team headed by SI Anil Kumar conducted the inspection of the
spot and gave the report vide Ex.PW-2/A. He prepared the site plan at the
instance of the complainant vide Ex.PW-9/B. He recorded the statement of
the owner of the factory and other labourers and added Sections 395/397/34
IPC during the course of investigation.
17. On 17th October 2011, SI Mahender Pratap got conducted the medical
examination of labourers Gopal and Deena Nath who sustained injuries in
the incident. On 18th October 2011, further investigation of the case was
handed over to SI Arun Kumar. On 12th December 2011, SI Ajay Kumar of
Special Staff, North West had called suspect Islam in a case registered at PS
Adarsh Nagar regarding a firing incident. Enquiries were made from him for
the purpose of knowing the whereabouts of Satish and Sunil.
18. On 14th December 2011, SI Ajay called Islam, Rajender, Parveen
Goyal and Raj Kumar to his office for the purpose of knowing the
whereabouts of co-accused Sunil and Satish. Islam revealed that Sunil,
Satish and their associates were carrying swords and other weapons while
committing dacoity at Prahladpur, Shahbad Dairy and Narela. He further
informed that some of the robbed articles were lying in his possession while
some were in the possession of Rajender. He further informed that he had
sold some of the robbed articles to Parveen Goyal and Raj Kumar. SI Ajay
inquired from PS Shahbad Dairy with respect to registration of any case and
came to know about FIR No. 340/2011. Islam, Raj Kumar, Rajender and
Parveen Goyal were arrested under Section 41.1 CrPC vide arrest memos
Ex.PW-17/A1, Ex.PW-17/B1, Ex.PW-17/C1 and Ex.PW-17/D1
respectively. Their personal search was done vide personal search memos
Ex.PW-17/A2, Ex.PW-17/B2, Ex.PW-17/C2 and Ex.PW-17/D2
respectively. In the personal search of Islam, Raj Kumar, Rajender and
Parveen Goyal, key rings with keys were recovered. Their disclosure
statements were recorded vide Ex.PW-17/A3, Ex.PW-17/B3, Ex.PW-17/C3
and Ex.PW-17/D3 respectively.
19. Thereafter SI Ajay alongwith HC Surender Pal, Ct. Ravi Rana, HC
Vinod Kumar, Ct. Bijender, HC Dharambir, Ct. Gajender and the appellants
Islam, Raj Kumar, Rajender and Parveen Goyal went to Shardanand Colony
to Rajender's godown from where they recovered one slab of copper, 44
sacks of copper wire, two enamelled wire rolls in four bags and two bags of
copper scraps. They were taken into possession vide seizure memo Ex.PW-
20/A under Section 102 CrPC.
20. Thereafter, Islam led them to Shah Alam Bandh, Jahangirpuri and
pointed out to one vehicle bearing number HR-38-L-0648 which belonged
to his friend Mohd. Zaiki who was also involved in the dacoity. The vehicle
was taken into possession vide seizure memo Ex.PW-17/A4. Two copper
slabs and two bags of copper wire were recovered from Islam's Jhuggi at his
instance. They were seized vide seizure memo Ex.PW-17/A5 under Section
102 CrPC.
21. Appellant Raj Kumar led them to godown no. D-18, Mahendra Park,
Near Jahangirpuri and produced about three copper slabs and four bags of
copper wire jaali which were taken into possession vide seizure memo
Ex.PW-21/B.
22. When the team led by SI Ajay Kumar returned to PS Mourya
Enclave, one public person was present who was claimed to be the owner of
the factory where the dacoity was committed. He requested for handing over
of the case property but was informed to contact the Investigating Officer at
PS Shahbad Dairy and make a request before the court for release of the
case property. The case property was deposited with MHC(M) Mourya
Enclave.
23. On 15th December 2011 SI Anuj Nautiyal of the Crime Branch,
Special Team received the file of the FIR No. 340/2011 from the reader of
ACP for further investigation. On 17th December 2011 he along with HC
Lakhwinder went to Rohini court complex in Court Room No.104 where
appellants Raj Kumar and Parveen Goyal were produced. He moved an
application for interrogation and arrest of appellants which was allowed by
the Ld.MM. Appellants Parveen Goyal and Raj Kumar were interrogated
and arrested vide arrest memo Ex.PW-15/A and Ex.PW-15/B respectively.
He recorded their disclosure statements vide Ex.PW-15/C and Ex.PW-15/D
respectively. Thereafter he moved an application for production of
appellants Islam and Rajender pursuant to which Islam and Rajender were
produced alongwith Parveen Goyal and Raj Kumar on 21st December 2011.
He moved an application for their interrogation and arrest which was
allowed by the Ld.MM. Appellants Rajender and Islam were arrested vide
arrest memo Ex.PW-15/E and Ex.PW-15/F respectively and their disclosure
statements were recorded vide Ex.PW-15/G and Ex.PW-15/H respectively.
Raj Kumar was sent to Judicial custody and Islam, Rajinder and Parveen
were taken on Police custody remand. Islam and Rajender pointed out the
place of occurrence that is Khasra No. 45/24, 48/25 Prahlad Pur Bangar,
Delhi vide pointing out memo Ex.PW-15/J.
24. On 28th December 2011, SI Anuj Nautiyal along with HC Lakhwinder
went to the court of Ld. MM, Rohini where appellant Sunil was present in
muffled face. He moved an application for interrogation and arrest of the
Sunil which was allowed by the Ld.MM. Sunil was interrogated and arrested
vide arrest memo Ex.PW-15/K and his disclosure statement was recorded
vide Ex.PW-15/L.
25. On 3rd January 2012, SI Anuj Nautiyal went to Tihar Jail No.3 where
he met Lukmaan, Manoj and Dina Nath who were sent inside jail premises
for participating in TIP proceedings of Sunil. TIP of Sunil was conducted by
Sh. Bhupender Kumar, learned Metropolitan Magistrate (PW13) vide
Ex.PW8/A in which witness Lukman correctly identified Sunil, however,
Dina Nath and Manoj failed to identify Sunil.
26. On 5th January 2012, SI Anuj Nautiyal along with HC Lakhwinder
and Ct. Rajesh went to Rohini Court where he moved an application for PC
remand of appellant Sunil. He pointed out the place of robbery vide pointing
out memo Ex.PW-15/U. He led them to bye-pass near Sanjay Gandhi
Transport Nagar, service road where they seized one TATA Ace No. DL-1-
LP-5304 vide seizure memo Ex.PW-15/M. The case property was deposited
with MHC(M) of PS Crime Branch.
27. On 10th January 2012, HC Lakhwinder on the direction of SI Anuj
Nautiyal collected the case property from MHC(M), PS Maurya Enclave and
deposited the same with MHC(M), PS Crime Branch vide RC No. 6/21/12.
28. On 12th January 2012, he recorded the statement of Mohd. Ilyas,
landlord of the shop of Parveen Goyal, Tara Chand, land lord of shop of Raj
Kumar and Gurbux Singh, landlord of shop of Rajender.
29. On 19th January 2012, SI Anuj Nautiyal along with HC Lakhwinder
went to Rohini Court where he moved an application for interrogation and
arrest of appellant Mohd. Zaiki which was allowed by the Ld. MM. Mohd.
Zaiki was interrogated and arrested vide arrest memo Ex.PW-15/N and his
disclosure statement was recorded vide Ex.PW-15/O. He led the police to
the ground floor of his house and produced three documents that is challan,
Insurance document and Form 47 of the vehicle no. HR-38-L-0648 which
were seized vide seizure memo Ex.PW-15/P.
30. On 27th January, 2012, SI Anuj Nautiyal alongwith HC Lakhwinder
went to Rohini Court where he moved an application for interrogation and
arrest of appellant Satish which was allowed by the Ld. MM. Satish was
interrogated and arrested vide arrest memo Ex.PW-15/R and his disclosure
statement was recorded vide Ex.PW15/S.
31. On 27th January, 2012 itself, SI Anuj Nautiyal filed an application for
fixing a date for judicial TIP of Satish vide Ex.PW14/A which was allowed
and TIP was fixed for 28th January, 2012. Satish after the arrest was
remanded to judicial custody. On 28th January, 2012, Sh. Manish Khurana,
learned M.M. (PW14) conducted TIP, wherein witnesses Lukman and
Manoj participated. In the said proceedings, though Lukman failed to
identify Satish, however, Manoj correctly identified Satish.
32. After the completion of investigation charge sheet was filed. Charge
was framed against Sunil and Satish for offences punishable under Sections
395/397/120B IPC, against Mohd. Zaiki for offences punishable under
Sections 395/120B IPC, against Parveen Goyal and Raj Kumar for offence
punishable under Sections 412 IPC and against Rajender and Islam for
offences punishable under Sections 395/412 IPC.
33. Tofi Ram (PW-1), Supervisor of the factory in his testimony stated
that at the factory they used to prepare bricks from copper scrap. On the
intervening night of 15th-16th October 2011 he was working in the factory as
a supervisor. There were 8-10 other workers in the factory whose names
were Harender, Chotu, Gopal, Manoj, Lukman, Rehman, Gulzar and
Mahesh. At about 12:30 A.M., while the workers were working in the
factory in another room and he was in his room, he came out on hearing a
loud noise and saw that 5-7 unknown persons had held the labourers on
point of knives and swords. They tied the hands of labourers including his
and put them in the godown of the factory. Thereafter they looted the goods
that is copper scrap, copper sillis and other copper goods and went away. He
could hear voices which indicated that they were loading goods in a vehicle.
The robbers had taken the keys of the gate from him after threatening him
and might have got the vehicle inside the factory. Later on when the stock
was checked, 4-4.5 tonnes of copper articles was found missing. They freed
themselves by crawling towards each other and untying the rope by which
their hands were tied. The robbers took away their mobile phones too. After
freeing himself he made a call to his employer from the nearby tea stall and
informed him about the incident. His employer Naveen came to the factory
with his brother Sachin. The police met them in the morning at about
4:00A.M.-4:30 A.M. and made enquiry from them. He identified appellants
Satish and Sunil as the persons who had looted the factory. He identified the
case property in photographs Mark PX1 to PX3. In his cross-examination he
stated that the bricks/slabs stolen were of particular type which were made
only by them in Delhi and no other person had purchased the copper scrap.
He further stated that he had never been called to the police station in
connection with the present case.
34. Naveen Sharma (PW-7), owner of the factory stated that he had been
running a factory of manufacturing copper/brass sillies, in the name and
style of Seema Dhatu Udyog, situated at Khasra No. 45/24 and 45/25,
Prahlad Pur, Bangar, Delhi. On 15th October 2011, he left his factory at
about 9:00 P.M. and in the night at about 4:00 A.M. - 4:30 A.M. he received
a phone call from his supervisor Tofi Ram Meena that 8-9 persons had
trespassed into the factory and tied the workers by pointing knife and swords
towards them and have robbed 14-15 copper sillis weighing two tonnes and
copper scrap weighing 2.10 tonnes. He also informed him that he had
already made a call at 100 number. He rushed to the factory and found PCR
officials present inside the factory. In his presence, police officials from PS
Shahbad Dairy also reached his factory and conducted the investigation and
got registered the FIR. During the investigation, the Investigating Officer
recorded his statement wherein he informed the Investigating Officer that
the goods were worth ₹ 20,00,000/-. During the course of investigation, he
also handed over one invoice of copper scrap to the Investigating Officer
which was seized by him. Later he received information that the offenders
had been apprehended by Special Staff (North-West) and copper sillis and
copper scrap had been recovered by them. He went to the office of Special
Staff at Pitampura where he saw and identified ten copper sillis and copper
scrap and informed the Investigating Officer of the present case. Thereafter
he moved an application for release of the case property in his favour and
the same was released in his favour vide order dated 2nd May 2012. A
Panchnama and Indemnity Bond were prepared in this regard vide Ex.PW-
7/C and Ex.PW-7/D. He identified the samples of the case property
produced by the MHC(M) in court. In his cross-examination he stated that
he did not put any identification mark on the manufactured copper sillis.
There was also no identification mark on the imported copper scrap. He
further stated that he had not identified the case property in judicial TIP.
35. Harender (PW-9), labourer deposed in sync with his testimony made
before the police. He identified appellants Sunil and Satish present in court
as the persons who entered the factory on that night and tied them.
36. Lukmaan (PW-8), labourer corroborated the testimony of Harender
(PW-9) and Tofi Ram (PW-1).
37. Dina Nath @ Chhotu, labourer was examined in court as PW-3 on
28th February 2013 and as PW-6 on 28th February 2015 and 10th April, 2017.
38. Gurbux Singh (PW-10), owner of godown at Swami Shardanand
Park, Bhalaswa Dairy stated that there were shops and godowns constructed
over the said plot. He had let out the shops and godown to the tenants and
one godown to one kabari whose name he did not remember. After going
through the rent agreement dated 3rd October 2010 witness stated that the
godown with one room was given on rent to one Tikam Singh son of Nathu
Singh at a monthly rent of ₹ 5000/-
39. Tara Singh (PW-11) in his testimony stated that he owned shop No.
D-18, Gali No.37, Mahendra Park, Delhi which he let out to Raj Kumar on
rent who was working as a scrap dealer/kabari in the shop. They did not
enter into any rent agreement. At that time the rate of rent was ₹ 2000/- per
month. In his cross-examination he stated that his house was situated about 1
k.m. away from the shop but he had never heard anything about the
appellant dealing in stolen goods.
40. ASI Madan Lal (PW-12) deposed that on 15th December 2011 he was
posted at PS Mourya Enclave as MHC(M) and on that day SI Ajay Kumar
deposited copper slabs, wire and scrap in unsealed condition. He
accordingly made entries in register no.19 at serial no.1274/11 vide Ex.PW-
12/A. On 10th January 2012 he handed over the case property to HC
Lakhwinder of PS Crime branch vide RC No.6/21/12 (Ex.PW-12/B) and
made entry in register no. 19 at point X in Ex.PW-12/A. In his cross-
examination he stated that the road certificate does not bear the time or
mode of dispatch to PS Shahbad Dairy.
41. Sunil Kumar and Satish in their statements recorded under Section
313 Cr.P.C. stated that they were already in custody in FIR No. 326/2011
registered at PS Adarsh Nagar and have been acquitted in that FIR. At the
time when they were in Tihar Jail, the production warrant of the present case
was received and they got to know about the present FIR. No recovery was
made from them. After their arrest in the present FIR, SI Anuj Nautiyal
showed their faces to the witnesses at PS Adarsh Nagar and since they were
not able to satisfy the demand of the Investigating Officer they were falsely
implicated in the present case.
42. Mohd. Zaiki and Islam in their statement recorded under Section 313
Cr.P.C. stated that they were innocent and were falsely implicated in the
present case.
43. Raj Kumar in his statement recorded under Section 313 Cr.P.C. stated
that he was picked up by special staff from his shop prior to 14th December
2011 and was kept in the basement of office of special staff and later on was
falsely implicated in the present case.
44. Parveen Goyal and Rajender in their statements recorded under
Section 313 Cr.P.C. stated that they were picked up by special staff from
their house prior to 14th December 2011 and were kept in the basement of
office of special staff and later on was falsely implicated in the present case.
Parveen Goyal also stated that he was not in possession of any shop in Gali
No.2, Mustafabad, Delhi on 14th December 2011 and he had vacated the
same in January 2011. He did not produce any copper slab or bags of copper
wire. He further stated that the Investigating Officer had taken his signatures
on blank papers.
45. Some of the general contentions addressed by learned counsels for the
appellants are that Section 395 IPC is not made out as there were less than
five persons involved and arrested, no proof of identification of the case
property has been given by the owner of the factory or its workers, the case
property has not been properly identified in the Court and though arrested on
14th December, 2011, the arrest memos of Islam, Rajinder, Raj Kumar and
Parveen Goyal mentions DD No. 7B of 15th December, 2011. As noted
above, consistent testimonies of the witnesses namely Harinder, Lukman,
Dina Nath and Tofi Ram who were present at the spot were that 5-7
unknown persons who were armed with the weapons entered the factory
from the roof and tied and wrongfully confined the workers and supervisors
of the factory in one room with heads down whereafter they opened the gate
and few more persons entered the factory. Though out of these accused
persons, only 5 who were present at the spot could be arrested, however
from the testimonies of the prosecution witnesses it is clear that there were
more than 8-10 persons including ones, who joined later on when the gate of
the factory was open. Further, 5 accused namely Satish, Sunil, Islam, Zaiki
and Rajinder who participated were arrested. In view of 5 and more people
being involved in the offence, even though all of them were not arrested and
tried, the offence of dacoity as punishable under Section 395 IPC is clearly
made out.
46. As regards the ownership and identification of the case property is
concerned, no doubt, no test identification of the property was done,
however, witness Naveen Sharma, the owner of the factory immediately
after the incident gave the invoice showing the purchase. Even if the
invoice belonged between the two companies which have the same address,
the ownership therein cannot be disputed. Further, soon after the recovery
Naveen Sharma had reached P.S. Mourya Enclave where the case property
was deposited on 14th November, 2011 and had identified the same thereby,
there being no necessity for conducting of TIP of the case property.
As regards identification before the Court is concerned, it may be noted that
vide order dated 2nd May, 2012, on an application by Naveen Sharma, the
case property was released to him keeping a sample thereof and the
photographs of the case property. Hence, on the basis of photographs, the
case property was identified during the trial. Vide order dated 2 nd May,
2012, when the goods were released on superdari to Naveen Sharma, learned
Trial Court noted that none of the accused claimed ownership regarding the
copper scraps and copper slabs and had no objection on the same being
released. The photographs of articles taken were kept on record and given
to the counsels for the accused as well and the case property was identified
through the photographs. Hence, the objections taken to the exhibition of
the case property through the photographs now deserves to be rejected.
47. As regards test identification of the accused is concerned, as noted
above in the evidence of the witnesses, since Islam and Rajinder who were
allegedly the accused at the spot were being called for investigation by SI
Ajay Kumar in regard to a firing incident registered at Police Station Adarsh
Nagar, wherein, they disclosed about their involvement in this case, the
accused having been present in the police station earlier, the conducting of
the TIP having been dispensed with by the investigating officer cannot
amount to an illegality warranting acquittal of the accused.
48. Accused Satish and Sunil were directly arrested in this case when in
custody in other FIR and thus, on their production before the learned
Metropolitan Magistrate on the same day, SI Anuj Nautiyal, the
Investigating Officer of the Crime Branch who arrested them, applied for
their Test Identification Parade which was got conducted. Contention of the
learned counsel that SI Anuj Nautiyal met the witnesses Lukman, Dina Nath
and Manoj before TIP was conducted, would not affect the sanctity of the
Test Identification Parade because the accused were in judicial custody and
even though, the Investigating Officer met the witnesses to tell them the
procedure, there was no way, he could have got identified the accused by the
witnesses prior to the TIP being conducted.
49. As regards non seizure of the lock and the key, it may be noted that
the case of the prosecution itself is that more than 5-6 accused jumped into
the factory from the roof whereafter, they tied down the labourers and
supervisors and took the key of the main gate from the supervisor
whereafter, they opened the main gate and other accused entered the
premises and the copper slabs and scraps were loaded in the vehicles which
fact the witnesses deposed as they could hear the sound of the vehicles
though none of them saw the vehicle in which the goods were loaded. Thus
the locks not being broken open there was no requirement of the lock and
key of the factory to be seized.
50. Appellants Islam, Rajinder, Raj Kumar and Parveen Goyal have
challenged the authenticity of their arrest memos for the reason though it is
the case of prosecution that they were arrested in the evening of 14 th
December, 2011 at around 5 pm, however, their arrest memos notes DD No.
7B dated 15th December, 2011. In this regard, it would be noted that
initially, Islam, Rajinder, Raj Kumar and Parveen Goyal were not arrested
by the local police which was investigating the FIR No. 340/2011 but by SI
Ajay Kumar of Special Staff, North West District, who was working on a
case relating to firing being FIR No. 326/2011 dated 3 rd December, 2011
under Sections 307/452/323/34 IPC and Section 25 and 27 of the Arms Act,
registered at P.S. Adarsh Nagar wherein, Satish and Sunil were suspected.
To trace Sunil and Satish, enquiries were conducted from Islam and
subsequently from Rajinder, Raj Kumar and Parveen Goyal, which led to
disclosure of the involvement of Sunil, Satish, Rajinder, Islam and Mohd.
Zaiki in FIR No. 340/2011 and hence, SI Ajay Kumar arrested Islam,
Rajinder, Parveen and Raj Kumar under Section 41.1 CrPC and made
recoveries under Section 102 CrPC. On conclusion of the proceedings,
Kallandara vide DD No. 7B on 15th December, 2011 was prepared, which
was noted in the four arrest memos for completion of record as is evident
from the perusal of record. It may be noted that no such question has been
asked to the witness SI Ajay Kumar, who appeared as PW21 in cross
examination.
51. As regards the appellants Sunil and Satish are concerned, witness
Lukman in his testimony before the Court, has clearly identified Sunil
Kumar and Satish as the two accused who took him and co-worker Harinder
inside the factory and tied both of them. He further stated that both Sunil
Kumar and Satish were armed with deadly weapons i.e. a big knife and
sword and they threatened him and the co-worker Harinder. No doubt,
Lukman in the Test Identification Parade conducted identified Sunil Kumar
but not Satish, however, coupled with the depositions of Tofi Ram, Dina
Nath and Harinder who have also identified Sunil and Satish as the two who
had jumped into the factory with other accused and were armed, there is
sufficient evidence on record to prove the commission of offences
punishable under Section 397 and 395 IPC by Sunil and Satish.
52. At the instance of Sunil Kumar, one vehicle i.e. Tata Ace DL 1 LP
5304 was recovered for which a seizure memo dated 6th January, 2012 was
prepared and exhibited as Ex.PW15/M and he informed that the said vehicle
belonged to the co-accused Satish. However, despite the recovery pursuant
to the disclosure having been proved, the prosecution has failed to prove that
the said vehicle is connected with the offence committed as neither of the
witnesses gave the number of the vehicle in which the robbed articles were
taken nor did they identify the said vehicle to be used in the commission of
the offence nor was the robbed property recovered from the said Tata
vehicle. Be that as it may, testimony of Lukman, coupled with the
testimonies of Tofi Ram, Dina Nath and Harinder who identified Sunil
Kumar and Satish as the two accused who on the said date, were armed with
big knife and sword and tied them, it can be safely held that the prosecution
has proved the commission of offences punishable under Sections 395 and
397 IPC against Satish and Sunil Kumar beyond reasonable doubt.
53. As regards appellant Islam is concerned, case of the prosecution is
that on receipt of an information, he was called to join investigation on 12 th
December, 2011 by SI Ajay Kumar of Special Staff whereafter, on 14th
December, 2011, he came along with the Rajinder and Parveen Goyal.
Pursuant to the information received from Islam, he led the police party to
Shah Alam Bandh, Jahangirpuri and pointed out one vehicle bearing
Number HR 38 L 0648 (Camel colour) and revealed that the said vehicle
belonged to Zaiki, who was also involved in the dacaoity. At the instance of
Islam, from his jhuggi H4/D-232 Jahangirpuri, two copper slabs weighing
105.8 Kgs. and 117 Kgs. and two bags of copper wire bundles weighing
41.4 Kgs. and 19 Kgs. were also recovered. Since Islam had already been
called to the police station for joining the investigation in another case, in
such a situation, conducting the Test Identification Parade would have been
a futility. Before Court, Islam was identified by Dina Nath when he
appeared as PW3. However, when he appeared as PW6 on 28th February,
2015 and 10th April, 2017, Dina Nath failed to identify Islam. Claim of
Islam in his statement under Section 313 CrPC was that he was falsely
implicated, however, he has not rendered any plausible explanation with
regard to recovery of two heavy copper slabs and two bags of copper wire
bundles except saying that no recovery was made from his possession.
From the identification of Dina Nath as also the recoveries of the copper
slabs and copper wire bags which were duly identified by Naveen Sharma,
the owner of the factory, this Court finds that the prosecution has proved its
case against Islam for the commission of the offence punishable under
Section 395 IPC beyond reasonable doubt.
54. As regards Mohd. Zaiki, he surrendered before the Court on 19th
January, 2012, whereafter he was formally arrested. Since he had
surrendered before the Court, no formal application of the Test Identification
Parade was moved and he was identified by Dina Nath when he appeared as
PW3. Pursuant to his disclosure statement, documents relating to vehicle
bearing No. HR 38 L 0648 were recovered lying under the bed in his house.
However, no recovery of the robbed article was made from the said vehicle
nor was it identified by any of the witness as a vehicle used in robbery.
Hence, the recovery of these three documents i.e. Challan, Insurance
Documents and Form No. 47 relating to vehicle bearing No. HR 38 L 0648
is meaningless.
55. Contentions of learned counsel for Islam and Zaiki that Dina Nath did
not identify them when he appeared as PW6, deserves to be rejected for the
reason that initially, Dina Nath appeared as PW3 when he identified both the
accused, however, Dina Nath was recalled as a witness wherein during his
examination on 28th February, 2015 and 10th April, 2017, he again identified
Zaiki but not Islam. Even if Dina Nath failed to identify Islam subsequently,
he correctly identified him in the Court when he was examined in the Court
initially on 28th February, 2013, which was quite proximate to the date of
incident being just over one year. Merely because the other eye witnesses
namely Tofi Ram, Lukman and Harinder did not identify Islam and Zaiki,
the same does not absolve Islam and Zaiki of their offence for the reason
that when there are number of offenders and number of victims, attention of
each witness/victim would not be towards each of the accused as each
victim would be cornered by one or two accused only.
56. Further, learned counsel for Islam and Zaiki has vehemently
contended that there were no distinctive marks on the articles which fact
deserves to be rejected for the reason that Naveen Sharma deposed that the
kind of copper slabs and the wires which were manufactured in his factory
were not being manufactured by any other person or entity in Delhi. This
version of Naveen Sharma is duly supported by Tofi Ram. Hence, this
Court finds no error in the conviction of Islam and Zaiki for the offence
punishable under Section 395 IPC.
57. As regards accused Rajinder is concerned, he has been duly identified
by Dina Nath when he appeared as PW3 and again on 10 th April, 2017,
when he appeared for the second time as PW6. Pursuant to the disclosure
statement of Rajinder, one copper slab and 43 sacks of copper wire
(weighing 37.8 Kgs., 38.5 Kgs., 60.8 Kgs., 63.2 Kgs., 39.5 kgs., 60.2 Kgs.,
73.3 kgs., 34.2 kgs., 37.6 Kgs., 73.8 Kgs., 42.8 kgs., 57.8 Kgs., 33.2 Kgs.,
36.2 Kgs., 106.9 Kgs., 47.2 Kgs., 68 Kgs., 50.5 Kgs., 59.3 Kgs., 45.1 Kgs.,
68.8 Kgs., 48.8 Kgs., 42.6 Kgs., 55.2 Kgs., 41.9 Kgs., 30.3 Kgs., 42.2 Kgs.,
67.9 Kgs., 47.6 Kgs., 39.3 Kgs., 95 Kgs., 46.2 Kgs., 39.4 Kgs., 37.4 Kgs.,
44.3 Kgs., 44 Kgs., 29 Kgs., 73.7 kgs., 33.7 Kgs., 21 Kgs., 15.9 Kgs., 37.4
Kgs., 41.5 kgs.,) were recovered besides two bags of scrap wire, four bags of
enamelled wire rolls. The recovery at the instance of Rajinder is huge and
same is from his warehouse. Case of Rajinder in his statement under
Section 313 CrPC is that no recovery was made at his instance. He had not
led the police to Shradanand Colony from where recoveries were made.
However, evidence of SI Ajay Kumar (PW-21), ASI Surender Pal (PW17)
and HC Ravi Rana (PW20) coupled with the seizure memo prepared prove
the recovery at the instance of Rajender. Case of Rajinder in his statement
under Section 313 CrPC is also that he was picked up from his house on 14th
December, 2011 and falsely implicated. However, no evidence of illegal
arrest has been proved by Rajinder in his defence. Contention of learned
counsel for the appellant Rajinder that Tofi Ram, Lukman and Harinder
specifically stated that Rajinder was not present at the spot, deserves to be
rejected for the reason, these witnesses merely did not identify him to be
present at the spot. As already noted when there are number of assailants
and number of victims, it is not necessary that each of the victim will be in a
position to notice all the accused. This fact has also been clarified by
Lukman in his testimony, who stated that he could not identify the
remaining accused for the reason that the occurrence took place 5-6 years
ago. Even Tofi Ram stated that he had not counted the numbers. The two
testimonies clearly show that they are fair and natural and there are no
improvements. Learned counsel for the appellant Rajinder claimed that
Gurbax Singh who appeared in the witness box as PW10 stated that the
warehouse from where the alleged recovery was made had been let out to
Tikam Singh and thus, Rajinder was not tenant in the premises and hence, he
has nothing to do with the warehouse from where the alleged recovery has
been claimed by the prosecution. Gurbax Singh who appeared in the
witness box deposed that he had many shops and godowns constructed over
the plot at Shradanand Colony, Bhalswa Dairy and had let out those shops
and godowns and one of the godowns was let out to a Kabari whose name,
he did not number but it could be Rajinder. After going through the rent
agreement, he stated that it had been let out to Sh. Tikam Singh. During the
cross examination, it was revealed that Tikam Singh is the brother of
Rajinder Singh. Considering the evidence of Dina Nath who identified
Rajinder while appearing as PW3 and later as PW6 on 10 th April, 2017 and
the amount of recovery as noted above, prosecution has proved its case
beyond reasonable doubt against Rajender for having committed offence
punishable under Section 395 IPC. Hence, his conviction for offence
punishable under Section 395 IPC is upheld.
58. Learned counsel for the appellant Raj Kumar has challenged the
alleged recovery on the ground that no independent witness was present at
the time of alleged recovery. However, SI Ajay Kumar and ASI Brijender
Singh (PW22) have clearly deposed about the recoveries made from the
shop of Raj Kumar. The non-association of public persons is clarified by
ASI Brijender who stated that they reached the shop of Raj Kumar at 11.45
pm when no public person was available. Further, the contradiction as to
whether they reached the shop at 11.45 pm or 1.30 am is not material.
59. The recoveries effected from Shop No. D18, Gali No. 37, Mahender
Park, Delhi is of three copper slabs weighing 104.6 Kgs., 112 Kgs and 104.4
Kgs. and copper scrap weighing 45.4 Kgs., 42.7 Kgs. and 50 Kgs. which is
a big quantity. Tara Chand (PW11), the owner of shop No. D-18, Gali No.
37, Mahender Park, Delhi appeared in the witness box and stated that he had
let out the shop to Raj Kumar on rent and that he was a scrap dealer. As
noted above, Naveen Sharma stated that the copper slabs and the copper
scraps though made in other factories as well but no other person was
making such kind of copper slabs/bricks, thus they were distinctive.
60. At the instance of Parveen Goyal from House No. 139, Gali No.2,
Purana Mustafabad, Delhi, four copper slabs weighing 114.4 Kgs., 114.1
Kgs., 113.4 Kgs. and 110.4 Kgs. and four bags of copper scrap weighing
42.9 Kgs., 48.9 Kgs., 39.4 Kgs. and 43.6 Kgs. were recovered. Mohd. Ilyas
(PW16) appeared in the witness box and deposed that he had given ground
floor hall of his house No. 139, Gali No. 2, Purana Mustafabad, Delhi on
rent for a period of two months to Parveen Goyal and that Parveen Goyal
was doing the work of A.C. Jaalis of Copper. Contention of the learned
counsel for the petitioner that the robbed articles / alleged recovery from
Parveen Goyal had not been identified, deserves to be rejected for the
reason, as noted above, vide order dated 2nd May, 2012, the case property
was released to Naveen Sharma on his application moved before the learned
Metropolitan Magistrate, which order clearly noted that none of the accused
claimed ownership in the property recovered and that they had no objection
if the property is released on superdari to Naveen Sharma. For the purposes
of identification with the consent of the counsels for the accused,
photographs of the recovered property was taken which was collectively
exhibited as Ex.P2 by SI Ajay Kumar, who appeared in the witness box and
identified the recovered property. Merely because Parveen Goyal was
called multiple times for interrogation, does not lead to an inference that no
recovery was effected at his instance. From the evidence of Mohd. Ilyas and
SI Ajay Kumar, the recovery from Parveen Goyal of the robbed article has
been proved beyond reasonable doubt.
61. Appellants Raj Kumar and Parveen Goyal have been convicted for the
offence punishable under Section 412 IPC. Section 412 IPC provides as
under:
"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 [imprisonment for life], or with rigorous imprisonment
for a term which may extend to ten years, and shall also be
liable to fine".
62. Thus, one of the necessary ingredients to prove commission of
offence punishable under Section 412 IPC is while receiving the robbed
property, the accused should have knowledge that it had been robbed
pursuant to a dacoity. The issue before this Court, is whether Raj Kumar and
Parveen Goyal were aware that the stolen property purchased by them was
pursuant to the commission of dacoity. No such evidence has been led by
the prosecution except the disclosure statement of the co-accused. Raj
Kumar and Parveen Goyal in their statements have given no explanation
from whom they bought the material and also did not produce any invoices
of purchase. Thus though a presumption can be raised that Raj Kumar and
Praveen Goyal knowingly purchased stolen copper slabs and scrap however
there is no material on record to prove that they had the knowledge that the
robbed articles were pursuant to a dacoity committed. Hence, the conviction
of Raj Kumar and Parveen Goyal is liable to be converted from offence
punishable under Section 412 IPC to one for offence punishable under
Section 411 IPC. Ordered accordingly.
63. As regards the order on sentence, in view of the fact that the offence
proved to have been committed by Raj Kumar and Parveen Goyal is one
punishable under Section 411 IPC, for which, sentence which may extend to
three years imprisonment or fine or both can be awarded, sentence of Raj
Kumar and Parveen Goyal, who have undergone imprisonment of nearly 2
years and 6 months, is reduced to the period already undergone.
64. Sentence of Satish and Sunil Kumar for the offence punishable under
Section 397 IPC is maintained i.e. rigorous imprisonment for a period of 7
years with fine of ₹ 5000/-. However, in default of payment of fine, sentence
is modified and they are directed to undergo sentence of simple
imprisonment for a period of one month in default of payment of fine.
65. Appellants Satish, Sunil Kumar, Islam, Zaiki and Rajinder have been
convicted for the offence punishable under Section 395 IPC and awarded
sentence of rigorous imprisonment for a period of 14 years and to pay fine
of ₹ 5000/- each and in default, to undergo simple imprisonment for a period
of one year. The sentence awarded is excessive and needs modification.
The sentence of appellants Satish, Sunil Kumar, Islam, Zaiki and Rajinder
for offence punishable under Section 395 IPC is reduced to rigorous
imprisonment for a period of 6 years and to pay a fine of ₹ 5000/- each, in
default, to undergo simple imprisonment for a period of one month each.
Sentences of Satish and Sunil are directed to run concurrently.
66. Appeals are accordingly disposed of. Appellants Raj Kumar and
Parveen Goyal are directed to be released forthwith if not required in any
other case.
67. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record and intimation to appellants.
68. TCR be returned.
(MUKTA GUPTA)
JUDGE
JULY 04, 2019
Vj/akb
