9911796707
TMI Blog2023 (3) TMI 1559X X X X Extracts X X X X X X X X Extracts X X X X ..... nhaie Jha were convicted for the offence under section 395 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") and the appellant Bharat Kumar Goswami was acquitted for offence under section 397 IPC after being given the benefit of doubt; and the order on sentence dated 04.06.2022 passed by the court of Mr. Dheeraj Mor, ASJ Central District, Tis Hazari Court, Delhi (hereinafter referred to as "the sentencing court") whereby the appellants along with convict Kanhaie Jha @ Kishan were sentenced to rigorous imprisonment for five years for the offence punishable under section 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7, he came to Chandni Chowk at "Jayanti Parveen Firm", at 320, Kucha Ghansi Ram, Chandni Chowk, Delhi, to collect payment. On that day, at about 05:30 PM, he after collecting the payment of Rs. 2,64,000/-kept by him in his bag, left Chandni Chowk in a rickshaw for Tis Hazari Metro Station. At about 05:50 PM, he reached at Tis Hazari Metro Station and while he was going at Footover Bridge, two boys followed him on Footover bridge out of whom one snatched his bag having cash and other documents. Thereafter, they both ran away from there. He (victim) chased 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 discl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) committed robbery with him. As per the discloser statements of the accused persons, accused Kanhaie Jha and Bharat Kumar Goswami chased the victim at Footover Bridge. Accused Kanhaie Jha snatched the bag, accused Bharat Kumar Goswami showed him pistol and accused Azad & Sanjeet kept waiting for them on the bikes standing on the road. On the basis of disclosure statements of these accused persons, accused Jitender @ Jitu was arrested but despite efforts, the police could not arrest accused Sanjeet, therefore, he was declared 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution, police officials who remained connected with the investigation including the Investigating Officer SI Sanjay Gupta and Nodal Officers from different telecommunication companies to establish locations of the complainant Manish Aggarwal and the convicts including the appellants and convict Kanhaie Jha. 5. The statements of the appellants and convict Kanhaie Jha were recorded under section 313 of the Code in which they pleaded false implication and stated that false recoveries have been planted upon them. They also 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 repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PW1 assumes importance. Here, the incident is of 30.06.2017. On 04.07.2017, accused Bharat Kumar Goswami, Kanhaie Jha and Azad @ Gaurav were arrested in FIR No. 104/2017, u/s 25/54/59 Arms Act PS Crime Branch, in which their disclosure statements were recorded wherein they disclosed their involvement in the present case alongwith accused Jitender @ Jitu and accused Sanjit (PO). The accused persons facing trial before the court were arrested in the present case on 07.07.2017. On the same day, IO moved application for their 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to his disclosure statement is strong corroborative evidence against accused Kanhaie Jha. The minor discrepancy in the identification of accused Kanhaie Jha by PW-1in the Court becomes inconsequential in view of the other supporting evidence in favour of prosecution and against accused Kanhaie Jha. The accused Kanhaie Jha was unknown to PW1 whose evidence was recorded in the Court after 10 months of the incident, therefore, the Court cannot rule out the possibility that due to lapse of time PW-1 might have got confused 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation. The prosecution has to prove the case against him from the circumstances and the other evidence on record. As per the Prosecution, one sim bearing no. 8510967074, was recovered from the possession of this accused during his personal search which was found in the name of one Swati Gupta. During investigation, police recorded the statement of father of Swati Gupta who said that the said sim bearing no. 8510967074, was never in the name of his daughter and the photographs on the Customer Application Form (CAF) is also 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are proclaimed offender or have been acquitted the benefit would not go to the other accused persons. The prosecution in order to prove its case for the offence of dacoity is required only to prove that five or more persons were involved in the robbery. In the case in hand, there is overwhelming evidence to record that five accused persons went at the spot out of whom accused Bharat Kumar Goswami and Kanhaie Jha robbed the bag of PW-1, accused Azad @ Gaurav and Sanjeet (P.O.) assisted the first two accused in committing robbery 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 examinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt under section 313 of the Code properly which violates the fundamental principles of natural justice. The convicting court has committed a grave error in drawing adverse inference against the appellant due to refusal to participate in TIP as the appellant was shown to public persons while in police custody in FIR bearing no. 104/2017. The trial court has committed a grave error in relying on CDRs. 7.1. The appellant Jitender @ Jitu challenged the impugned judgment primarily on the grounds that the impugned judgment is 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons. The Supreme Court in Shivani V State of Maharashtra, AIR 1973 SC 2662 emphasized that our jurisprudential enthusiasm for presumed innocent must be moderated by the pragmatic need to make criminal justice potent and realistic. The Supreme Court in State of U.P V Shankar, AIR 1981 SC 897 observed that it is the function of the court to separate the grain from the chaff and accept what appears to be true and reject the rest. In Krishna Mochi V State of Bihar, 2002 Crl LJ 2645 it was observed that there is a sharp decline 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 canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 2,000/-amounting to Rs. 2,64,000/-, cheque book issued in favour of Mehal International, cheque book issued in favour of the complainant Manish Aggarwal PW1 by State Bank of India, Rohini and two rubber stamps in name of Mehal International and Morph Industries. The complainant Manish Aggarwal PW1 further deposed that those two boys ran away downstairs and sat on two separate motor bikes which were already in starting position and two other boys were already sitting on those two 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 durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase vide arrest memos Ex. PW20/A, Ex. PW20/G and Ex. PW20/D respectively and also recorded their disclosure statements. SI Sanjay Kumar Gupta PW23 at their instance, also recovered and seized scooty bearing registration no. DL 6SAH 9023 stated to be used by the appellant Jitender @ Jitu while chasing the complainant Manish Aggarwal PW1 and also arrested the appellant Jitender @ Jitu vide arrest memo Ex. PW14/A. SI Sanjay Kumar Gupta PW23 also recorded disclosure 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of forged documents and was using said SIM no. 11.2.2. PW-17 Rajeev Vashisht, Nodal Officer, Bharti Airtel has brought the record of SIM no 9958081077, 9599541224 and 99111082067. SIM no 9958081077 as per CAF Ex. PW17/A was in the name of Gaurav and proved the CDR of SIM no 9958081077 as Ex. PW17/B. SIM no 9599541224 as per CAF Ex. PW17/D was in the name of Kanhaie Jha and proved the CDR of SIM no.9599541224 as Ex. PW17/E. SIM no 99111082067 as per CAF 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inant Manish Aggarwal and PW2 Pawan Kumar clearly proved the presence of the complainant Manish Aggarwal PW1 at the place of occurrence at the time of the incident. 13.1. The appellants Azad @ Gaurav and Bharat Kumar Goswami and the convict Kanhaie Jha were arrested in the present case on 07.07.2017 and they had refused to participate in TIP on the grounds that they have been shown to the complainant Manish Aggarwal PW1 in police station and their photographs were 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... victing court held that offence was committed by five person and non arrest of accused Sanjeet who was declared PO did not extend any benefit to the appellants and convict Kanhaie Jha. 14. The respective counsels for the appellants and the Additional Public Prosecutor for the respondent/State advanced arguments. Relevant record perused. 14.1. The counsel for the appellant Bharat Kumar Goswami advanced oral arguments and also submitted written arguments. The counsel 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 appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be sustained. 14.4. The Additional Public Prosecutor for the respondent/State supported the impugned judgment argued that the prosecution has led sufficient evidence qualitatively and quantitatively to prove guilt of the appellants as per law. He referred testimony of the complainant Manish Aggarwal PW1 during arguments and argued that the testimony of the complainant Manish Aggarwal is trustworthy and can be safely relied on. The Additional Public Prosecutor also 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 dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor made efforts to collect CCTV footage from any camera that might be installed on the vicinity of the incident. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. It 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/dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclude any public person in the investigation, it is not fatal to the case of the prosecution. There is legal force in the arguments advanced by the Additional Public Prosecutor that the testimony of the complainant Manish Aggarwal PW1 is sufficient to connect the appellant Bharat Kumar Goswami with offence. 16. The convicting court, to connect the appellant Jitender @ Jitu relied on CDR Ex. PW16/B in respect of SIM no 8510967074 although said SIM 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 995808107 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered from the appellant Azad @ Gaurav and Rs. 56,000/-were recovered from the convict Kanhaie Jha. 17.2. The appellants Azad @ Gaurav, Bharat Kumar Goswami and convict Kanhaie Jha were formally arrested on 07.07.2017 in the present FIR by the investigating officer SI Sanjay Kumar Gupta PW23 and during the investigation their respective statements Ex. PW20/C, Ex. PW20/J and Ex. PW20/F were recorded. The appellant Jitender @ Jitu was also arrested and 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 statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emo Ex. PW11/A. During further investigation, SI Sanjay Kumar GuptaPW1also 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. The 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 leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 'red cloth with 'Kamla' embossed on it, as has been acceded by the Investigating Officer, Rajinder Kumar (PW-14), can also be easily available in market. Fifthly, the recovery took place nearly a month after the commission of the alleged offence. We find it incredulous, that the Appellant during the entire time period kept both the red cloth and the passbook in his custody, along with the money he allegedly robbed off the Complainant. 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 und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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