9911796707
TMI Blog2023 (3) TMI 1559X X X X Extracts X X X X X X X X Extracts X X X X ..... ly and legally unsustainable surmises and assumptions and without adequate support of evidence. It is proved that the appellant Jitender @ Jitu and Azad @ Gaurav received/retained the stolen property. The prosecution, from the quality and quantity of evidence, could only prove guilt of the appellant Bharat Kumar Goswami for offence punishable under section 379/356/34 IPC and guilt of the appellants Jitender @ Jitu and Azad @ Gaurav for the offence punishable under section 411 IPC. The Criminal Appeals bearing no 593/2022, 354/2022 and 367/2022 preferred by the appellants Azad @ Gaurav, Jitender @ Jitu and Bharat Kumar Goswami, respectively to challenge the impugned judgment passed by the convicting court whereby appellants along with the convict Kanhaie Jha were convicted for the offence under section 395 IPC is partly allowed. The appellant Bharat Kumar Goswami is convicted for offences punishable under section 379/356 IPC and the appellants Jitender @ Jitu and Azad @ Gaurav are Convicted for offence punishable under section 411 IPC. The order on sentence dated 04.06.2022 passed by the sentencing court is also modified. The appellant Bharat Kumar Goswami is sentenced to undergo ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 395 IPC and were also directed to pay a fine of Rs. 25,000/-individually for the offence punishable under Section 395 IPC and in default to undergo further simple imprisonment of two months. It was further directed to pay Rs. 90,000/-to the complainant as per section 357 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") towards the loss suffered by him and remaining Rs. 10,000/-was ordered to be paid to the State towards the expenses incurred in the prosecution of the case. Fine was not paid. 2. Section 391 IPC defines dacoity. It reads as under:- 391. Dacoity.-When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit dacoity. Dacoity is commission of robbery by five or more persons otherwise there is no difference between dacoity and robbery. The essential ingredients of Section 391 are: i. Five or more persons must act in association, ii. Such act must be robbery or att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed those boys and saw that two more boys were already standing on two different bikes on the road and the boys who came on Footover Bridge sat on those bikes and ran away from the spot. The victim in his initial statement said that he can identify those boys if shown to him. On this statement of the victim, on the same day of incident, the FIR of this case was registered and investigation was carried out. On the next day of the incident i.e. 01.07.2017, the complainant gave his supplementary statement in which he stated that one of the snatcher was also having pistol with him at the time of incident which he (victim) could not disclose on 30.06.2017, due to fear. He further said in his supplementary statement that in the bag snatched by the wrong doers, one cheque book of Syndicate Bank of his firm "Morph Industries" having account no. 91711010000032, one cheque book of State Bank of India of account no. 32015241943, two stamps of "Morph Industry" & "Mahal International" and certain photocopies of the documents, were also there. The denomination of Rs. 2,64,000/-was given by him as 132 currency notes of Rs. of Rs. 2000/-each. 3. On 04.07.2017, acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared Proclaimed Offender. 4. During investigation, in pursuant to the disclosure statement of the accused persons, the following recoveries were effected from them:- (i) Bharat Kumar Goswami:- At the time of his arrest on 05.07.2017 in FIR No. 104/2017, PS Crime Branch Rs. 20,000/-were recovered from him. As per the disclosure statement of this accused out of the robbed amount of Rs. 2,64,000/- Rs. 52,000/-came to his part out of which Rs. 20,000/-has been seized in the FIR no. 104/2017, U/s 25/54/59 Arms Act, PS Crime Branch. (ii) Kanhaie Jha:- At the time of his arrest on 05.07.2017 in FIR No. 104/17, PS Crime Branch, cash of Rs. 1,12,000/-was recovered from him. As per the disclosure statement of this accused, out of the robbed amount of Rs. 2,64,000/- Rs. 56,000/-came to his part which were seized in the FIR No. 104/17. On 08.07.2017, accused got recovered from his house one cheque book of the complainant of account no. 32015241943;- (iii) Azad @ Gaurav:- At the time of his arrest on 05.07.2017 in FIR No. 104/17, PS Crime Branch, cash of Rs. 1,89,000/-was recovered from him. As per his disclosure statement, out of the robbed amount of Rs. 2,64,000/- Rs. 52,000/-ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that they refused to participate in Test Identification Parade (TIP) proceedings since they were already shown to the complainant and other public persons. They were taken to the Crime Branch Office during the investigation where they were shown to many public persons including the complainant. 6. The convicting court while convicting appellants and convict Kanhaie Jha, primarily relied on testimonies of the complainant Manish Aggarwal PW1, Nodal Officers from different telecommunication companies and recoveries affected from the appellants and convict Kanhaie Jha in pursuance of their disclosure statements. The relevant portion of impugned judgment is reproduced as under:- 37. The prosecution in order to prove its case has to establish the occurrence of incident and identity of the accused persons facing trial before the court beyond reasonable doubt. In the case in hand, PW-1 Manish Aggarwal, the only victim and eye witness of the crime, is the prime witness of the prosecution around whom the entire case is revolving, who saw the assailants while committing the robbery with him. 38. The testimony of PW-1 on the incident is consistent that on 30.06.2017, at about 04:30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r TIP but they refused to participate in Test Identification Parade on the pretext that their photographs have been clicked by the IO and they have been shown to the victim (PW-1) in the police station. The stand of accused persons that they refused to participate in the TIP proceedings since their photographs were clicked and shown to PW-1 in the police station has no merit since PW-1, during his evidence, has stated that accused persons were shown to him in the police station of Crime Branch and Subzi Mandi on 10.07.2017 i.e. after TIP proceedings, which took place on 07.07.2017. Even, accused persons during their statements recorded U/s 313 Cr.PC have stated that during their police remand, they were taken to the Office of PS Crime Branch and were shown to PW-1 further supports the statement of PW-1 that accused persons were shown to him post TIP proceedings but not prior to that, therefore, the refusal of accused persons to participate in TIP proceedings, is without any reason, hence, the adverse inference can be drawn against them. 41. Now, comes the testimony of PW-1, on the identification of accused persons, who in his initial statement Ex. PW1/A said that he can identify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the identity of accused Kanhaie Jha with accused Azad but when Ld. APP specifically pointed out towards accused Kanhaie Jha, he (PW-1) recollected that it was Kanhaie Jha who was accompanying accused Bharat Kumar Goswami at the time of snatching his bag. The truthfulness and trustworthiness of PW-1 can be gathered from his further deposition that when Ld. APP specifically pointed out towards accused Azad and Jitender for their identification by PW1, he categorically denied to identify them saying that he did not see these two accused persons on the day of incident. No previous enmity between Bharat Kumar Goswami & Kanhaie Jha and victim (PW1) has come on record due to which the later would have falsely implicate them. From the deposition of PW-1, the prosecution has duly proved the identity of accused Bharat Kumar Goswami and Kanhaie Jha that on the day of incident, they went on the Footover Bridge of Tis Hazari Metro Station and robbed the bag of PW-1. 42. Next, is the identity of accused Azad @ Gaurav and Jitender @ Jitu. So far as, the accused Azad is concerned, as per Prosecution he was standing on the motorcycle on the road. He was identified by PW-1 in the court as one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o not of his daughter. The prosecution has established that the sim of the above mobile number was recovered from the possession of accused Jitender @ Jitu and he has failed to explain as to how the said sim came in his possession and the CDR placed on record by the prosecution is inconsonance with the case of prosecution that the user of said sim was chasing PW-1 from Chandni Chowk to Tis Hazari Metro Station and was in continuously in touch with other accused persons and on the date and time of incident he was present at the spot. In pursuance to the disclosure statement of this case, even the recovery of case property i.e. cheque book and cash of PW-1 was also effected from this accused. 44. The other connecting evidence against the accused persons are the recoveries effected from them in pursuant to their disclosure statements. As already noted in para no. 4 of this order, that part of robbed cash amount, both cheque books, two stamps of complainant's firm and one photocopy of Aadhar Card of his wife were recovered from the possession of the accused persons. The accused have failed to explain as to how the stamps, cheque books and photocopy of Aadhar Card of complainant&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obbery and similarly the fifth accused Jitender @ Jitu was also present at the spot and assisted other four accused persons in committing robbery. Non-arrest of accused Sanjit cannot benefit the other four accused facing trial before the court. In view of the aforesaid discussion, the prosecution has duly proved its case against the four accused facing trial before the court U/s 395 IPC. 47. Accused Bharat Kumar Goswami is also charged for the offence U/s 397 IPC on the allegations that he at the time of robbery shown pistol to PW-1. During examination in chief, PW-1 correctly identified accused Bharat Kumar Goswami who shown him the pistol. During cross examination of this PW conducted by Ld. APP, he said that accused Kanhaie Jha was wearing helmet at the time of incident which was without glass. During cross examination of PW-1conducted by counsel of accused Bharat Kumar Goswami, he said that the person who aimed gun on him was wearing a helmet. The statement of PW-1 that at the time of incident, accused Kanhaie Jha was wearing the helmet and he shown him the pistol entitles the accused Bharat Kumar Goswami for benefit of doubt for the offence U/s 397 IPC. 48. In view of afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based on conjectures and surmises and is as such not sustainable under law. The prosecution has failed to prove its case beyond reasonable doubt. The complainant Manish Aggarwal PW1 got registered an unnamed FIR and in his testimony, the complainant didn't identify the appellant as one of the accused in the present case. The appellant was arrested on basis of disclosure statements made by the other co-accused. The prosecution has failed to prove guilt of the appellant beyond reasonable doubt. 7.2. The appellant Bharat Kumar Goswami challenged the impugned judgment on the grounds that the convicting court committed a grave error on law and facts while passing the impugned judgment. There is no suitable evidence that PW18 delivered a parcel containing Rs. 2,64,000/-in 132 currency notes in denomination of Rs. 2,000/-. The testimony of the complainant Manish Aggarwal PW1 was not consistent qua the involvement of the appellant. The complainant has not deposed that the appellant had snatched his bag and as such no offence is made out against the appellant. The complainant Manish Aggarwal has improved his statement by adding that the appellant was having pistol with him and said pi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in ethical values in public life and in present days when crime is looming large and humanity is suffering and society is so much affected, thereby duties and responsibilities of the courts have become much more. It was observed as under:- Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice changing world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". 8.1. The Supreme Court in Sujit Biswas V State of Assam, (2013) 12 SCC 406 held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. In Jose V Sub Inspector of Police, Koyilandy and others, (2016) 10 SCC 519, the Supreme Court held as under:- In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo motor bikes. The complainant Manish Aggarwal PW1 chased those four boys and saw them at the spot. The police came at spot and statement Ex. PW1/A of the complainant Manish Aggarwal PW1 was recorded. The complainant Manish Aggarwal PW1 further deposed that subsequently Rs. 1,80,000/-were recovered from the offenders. The complainant Manish Aggarwal PW1 identified stamps and cheque books as Ex. PW1/B to Ex. PW1/D. The complainant Manish Aggarwal PW1 identified the appellant Bharat Kumar Goswami who pointed a gun at him and appellant Azad @ Gaurav who was accompanied the appellant Bharat Kumar Goswami but he could not identify who snatched the bag from him. 9.2. The complainant Manish Aggarwal PW1 during cross examination conducted by the Additional Public Prosecutor identified convict Kanhaie Jha who snatched the bag from him and was standing along with the appellant Bharat Kumar Goswami. The complainant Manish Aggarwal PW1 could not identify the appellant Azad @ Gaurav who was sitting on a motor bike which was standing downstairs of foot over bridge and was in starting position and on pillion seat of which the appellant Bharat Kumar Goswami sat after the incident. The complainan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement Ex. PW14/C of the appellant Jitender @ Jitu and in pursuance of which recovered Rs. 2,90,000/-which were seized vide seizure memo Ex. PW11/A. During further investigation, SI Sanjay Kumar Gupta PW23 also recovered cheque book Ex. PW1/D issued by Syndicate Bank at the instance of the appellant Jitender @ Jitu which was seized vide seizure memo Ex. PW20/K, cheque book Ex.PW1/C at the instance of convict Kanhaie Jha which was seized vide seizure memo Ex. PW20/L, two stamps Ex. PW1/D at the instance of the appellant Azad @ Gaurav which were seized vide seizure memo Ex. PW20/M. 10.1. It is worth mentioning that as per prosecution, the robbed amount was Rs. 2,64,000/-. The appellant Bharat Kumar Goswami received Rs. 52,000/-and out of which Rs. 20,000/-has been recovered and seized in the FIR no. 104/2017. The convict Kanhaie Jha got recovered Rs. 1,12,000/-during investigation of FIR bearing no. 104/2017 which included Rs. 56,000/-which came to his share out of the robbed amount and on 08.07.2017 also got recovered one cheque book of account no. 32015241943 belonged to the complainant Manish Aggarwal PW1. The appellant Azad @ Gaurav got recovered Rs. 1,89,000/-during the inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex. PW17/F was in the name of Sandeep and proved CDR of the SIM no 99111082067 as Ex. PW17/G. 12. The prosecution from the quality and quantity of evidence led by it established following facts:- i. The complainant Manish Aggarwal PW1 on 30th June, 2017collected payment of Rs. 2,64,000/-from Kucha Ghasi, Chandni Chowk against supply of mattress and kept said amount in a handbag. ii. The complainant Manish Aggarwal PW1 proceeded towards Tis Hazari metro station and at about 6 pm alighted from battery rickshaw near the foot over bridge of Tis Hazari Metro Station and started climbing the foot over bridge. iii. The appellant Bharat Kumar Goswami came at foot over bridge and pointed a small gun on the complainant Manish Aggarwal PW I. The appellant Azad@ Gaurav was accompanying the appellant Bharat Kumar Goswami. The complainant Manish Aggarwal PW1 in cross examination conducted by Additional Public Prosecutor identified the convict Kanhaie Jha who snatched bag from him and was standing along with the appellant Bharat Kumar Goswami. iv. The boys ran away downstairs and sat on two separate motor bikes which were already started and two other boys were already sitting on those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re also clicked. The convicting court observed that as per the testimony of the complainant Manish Aggarwal PW1, the appellants Azad @ Gaurav and Bharat Kumar Goswami and the convict Kanhaie Jha were shown to him in police station on 10.07.2017 i.e. post TIP proceedings and the convicting court due to this did not accept reasons for refusal to participate in TIP by the appellants Azad @ Gaurav and Bharat Kumar Goswami and the convict Kanhaie Jha and drew adverse inference against them. 13.2. The convicting court also believed the testimony of the complainant Manish Aggarwal PW1 including cross examination conducted by Additional Public Prosecutor regarding the participation of the appellant Bharat Kumar Goswami as person who pointed pistol at the complainant Manish Aggarwal PW1 and convict Kanhaie Jha as person who snatched bag from the complainant Manish Aggarwal PW1 irrespective of a discrepancy in the testimony of the complainant Manish Aggarwal PW1 regarding identification of the convict Kanhaie Jha. The convicting court, to establish identity of the convict Kanhaie Jha, also drew support from CDR Ex. PW17/E in respect of SIM no 9599541224 which as per CAF Ex. PW17/D was regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the appellant Bharat Kumar Goswami argued that the prosecution could not prove that the complainant Manish Aggarwal PW1 had received 132 currency notes of denomination of Rs. 2000/-each total amounting to Rs. 2,64,000/-and the testimony of PW18 is not sufficient to prove this fact. The testimony of the complainant Manish Aggarwal PW1 is not consistent regarding the alleged involvement of the appellant Bharat Kumar Goswami. The appellant Bharat Kumar Goswami was acquitted for the offence punishable under section 397 IPC by the convicting court. The investigating officer neither included any public person in investigation nor seized CCTV footage from cameras stated to be installed near place of occurrence. The appellant Bharat Kumar Goswami refused to participate in Test Identification Parade (TIP) for justified reasons. The impugned judgment is liable to be set aside. 14.2. The counsel for the appellant Jitender @ Jitu advanced oral arguments and also submitted written arguments. The counsel for the appellant Jitender @ Jitu argued that the impugned judgment is not sustainable in law and is based on conjectures and surmises. The prosecution has failed to prove its case bey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so supported arguments by referring recoveries stated to be affected from the appellants and testimonies of the Nodal Officers. 15. In a criminal trial the evidence is to be weighed not counted and the court should not adopt a mechanical approach in appreciating evidence of prosecution. Although criminal jurisprudence requires a high standard of proof for imposing punishment on an accused, it is equally important that on hypothetical grounds and surmises, prosecution evidence should not be brushed aside and disbelieved to give undue benefit of doubt to the accused. 15.1. The prosecution to connect the appellant Bharat Kumar Goswami with offence, relied on the testimony of the complainant Manish Aggarwal PW1 who in his deposition identified as the person who pointed katta (pistol) on him although the convicting court vide impugned judgment had acquitted the appellant for offence punishable under section 397 IPC. The testimony of the complainant Manish Aggarwal PW1proved involvement of the appellant Bharat Kumar Goswami along with the convict Kanhaie Jha regarding snatching of the bag from him despite minor discrepancy in deposition of the complainant Manish Aggarwal PW1. Every con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was observed in Kuna @ Sanjaya Behera V State of Odisha, 2017 SCC Online Supreme Court 1336 that the conviction can be based on the testimony of single eye witness if he or she passes the test of reliability and that is not the number of witnesses but the quality of evidence that is important. The Supreme Court in Veer Singh & others V State of UP, (2014) 2 SCC 455 observed as under:- Legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is not the number of witnesses but quality of their evidence which is important as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. Evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided Under Section 134 of the Evidence Act. As a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. No public person joined and included in investigation. The conviction can be based upon the testimonies of eyewitness. The prosecution does not require a number of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no as per CAF Ex. PW16/A was issued in name of Swati Gupta but seized from possession of the appellant Jitender @ Jitu. The convicting court held that CDR Ex. PW16/B proved that user of SIM no 8510967074 i.e. the appellant Jitender @ Jitu was chasing the complainant Manish Aggarwal PW1 from Chandni Chowk to Tis Hazari Metro Station and was in constant touch with other accused(s). It is pertinent to mention that there is no incriminating evidence in testimony of the complainant Manish Aggarwal PW1 against the appellant Jitender @ Jitu. The complainant Manish Aggarwal PW1 did not identify the appellant Jitender @ Jitu as the person who was chasing him. 16.1. The convicting court also relied on CDR Ex. PW17/B in respect of SIM no 9958081077 which as per CAF Ex. PW17/A was issued in name of the appellant Azad @ Gaurav to establish his presence at the spot. The convicting court also relied on CDR Ex. PW17/E in respect of SIM no 9599541224 which as per CAF Ex. PW17/D was issued in name of convict Kanhaie Jha to establish his presence at the spot. CDR data may be an important and effective piece of evidence which may facilitate and assists courts in ascertaining the presence of differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd his disclosure statement Ex. PW14/C was recorded and during the investigation Rs. 2,90,000/-got recovered which were seized vide seizure memo Ex. PW11/A. The appellant Jitender @ Jitu, during further investigation also got recovered one cheque book Syndicate Bank Ex. PW1/D which was seized vide seizure memo Ex. PW20/K. The convict Kanhaie Jha also got recovered cheque book Ex. PW1/C which was seized vide seizure memo Ex. PW20/L. The appellant Azad @ Gaurav also got recovered two seals Ex.PW1/B which were seized vide seizure memo Ex.PW20/M. 17.3. The convicting court to establish criminality of the appellants Azad @ Gaurav and Jitender @ Jitu, also relied on recoveries affected at their instance in pursuance of the disclosure statements. Section 27 of the Evidence Act, 1872 incorporates the theory of confirmation by subsequent facts i.e. statements made in police custody are admissible to the extent that they can be proved by subsequent discovery of facts. The Supreme Court in Raju Manjhi V State of Bihar, Criminal Appeal No. 1333/2009 decided on 2nd August, 2018 held as under:- It is true, no confession made by any person while he was in the custody of police shall be proved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he recovered amount was also having part of the robbed amount. 17.5. The recoveries affected from the appellants as detailed hereinabove do inspire much confidence. There is nothing in the respective testimony of the police/prosecution witnesses who affected recoveries which can shake credibility of their testimonies about recoveries. The robbed amount and other articles stated to be recovered at the instance of the appellants and convict Kanhaie Jha were also identified by the complainant Manish Aggarwal PW1. There is nothing in the prosecution evidence which can make the recoveries improbable. The quantum and quality of evidence led by the prosecution regarding the recoveries is convincing and can be safely relied upon. There is no legal and factual force in the arguments advanced by the respective counsels for the appellants that alleged recoveries are highly improbable under given facts and circumstances of the case. The convicting court was justified in believing that the recoveries alleged to have been made from the appellants and convict Kanhaie Jha. There is legal and factual force in arguments advanced by the Additional Public Prosecutor that at the instance of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nant. Sixthly and finally, there is no other evidence on record which even remotely points towards the iniquity of the Appellant. However, under the facts and circumstances of the case, it does not provide any help to the defence of the appellant jitender @ jitu. 18. However the convicting court was not justified in convicting the appellants for the offence punishable under section 395 IPC. The prosecution could prove that the appellant Bharat Kumar Goswami had participated in snatching of bag from the complainant Manish Aggarwal PW1 and subsequently recoveries as detailed herein above were affected at the instance of the appellants and convict Kanhaie Jha. The impugned judgment convicting the appellants for the offence punishable under section 395 was passed on factually and legally unsustainable surmises and assumptions and without adequate support of evidence. It is proved that the appellant Jitender @ Jitu and Azad @ Gaurav received/retained the stolen property. The prosecution, from the quality and quantity of evidence, could only prove guilt of the appellant Bharat Kumar Goswami for offence punishable under section 379/356/34 IPC and guilt of the appellants Jitender @ Jit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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