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2019 Supreme(Del) 1531
IN THE HIGH COURT OF DELHI
MUKTA GUPTA, J.
Raj Kumar & Others - Appellant
Versus
State of NCT of Delhi - Respondent
Crl.A. Nos. 922, 950, 976, 980, 1109, 1183, 104 of 2017
Decided On : 04-07-2019
For the Appellants :R.N. Sharma, Sonia, Purvesh Buttan, Fahad Imtiaz, Rahul Sharma, Aditya Vikram, Vinash, S.S. Handa, Shiva Handa, K. Singhal, Advocates.
For the Respondents: Ashok Kumar Garg, APP.
The presumption under Section 114(a) of the Evidence Act cannot be applied in the absence of independent corroboration of the recovery of the stolen property.
Headnote:
CRIMINAL APPEAL - SECTION 395, 397, 412 IPC - IDENTIFICATION OF ACCUSED - TEST IDENTIFICATION PARADE - RECOVERY OF STOLEN PROPERTY - PRESUMPTION UNDER SECTION 114(A) OF EVIDENCE ACT - IDENTIFICATION OF CASE PROPERTY - OWNERSHIP OF CASE PROPERTY - SECTION 412 IPC - KNOWLEDGE OF STOLEN PROPERTY - SENTENCE.
Fact of the Case:
The appellants were convicted for offences punishable under Sections 395, 397 and 412 IPC. The prosecution alleged that the appellants had committed dacoity in a factory and stolen copper slabs and scrap. The appellants challenged the conviction on various grounds, including the identification of the accused, the recovery of stolen property, and the presumption under Section 114(a) of the Evidence Act.
Finding of the Court:
The court found that the identification of the accused was reliable and that the recovery of stolen property was duly proved. The court also held that the presumption under Section 114(a) of the Evidence Act could not be applied in the present case as there was no independent corroboration of the recovery of the stolen property. The court further held that the appellants had knowledge that the property they had purchased was stolen, but there was no evidence to prove that they knew that the property was stolen pursuant to a dacoity. Therefore, the court convicted the appellants for the offence punishable under Section 411 IPC instead of Section 412 IPC.
Issues: 1. Whether the identification of the accused was reliable? 2. Whether the recovery of stolen property was duly proved? 3. Whether the presumption under Section 114(a) of the Evidence Act could be applied in the present case? 4. Whether the appellants had knowledge that the property they had purchased was stolen? 5. Whether there was evidence to prove that the appellants knew that the property was stolen pursuant to a dacoity?
Ratio Decidendi: 1. The court held that the identification of the accused was reliable based on the testimonies of the witnesses and the Test Identification Parade conducted by the police. 2. The court held that the recovery of stolen property was duly proved based on the seizure memos and the testimonies of the police officers. 3. The court held that the presumption under Section 114(a) of the Evidence Act could not be applied in the present case as there was no independent corroboration of the recovery of the stolen property. 4. The court held that the appellants had knowledge that the property they had purchased was stolen based on the disclosure statements of the co-accused and the fact that they did not produce any invoices of purchase. 5. The court held that there was no evidence to prove that the appellants knew that the property was stolen pursuant to a dacoity.
Final Decision: The appeals were disposed of accordingly. The appellants Raj Kumar and Parveen Goyal were directed to be released forthwith if not required in any other case. The sentence of Satish and Sunil Kumar for the offence punishable under Section 397 IPC was maintained. The sentence of appellants Satish, Sunil Kumar, Islam, Zaiki and Rajinder for offence punishable under Section 395 IPC was reduced to rigorous imprisonment for a period of 6 years and to pay a fine of Rs. 5000/- each, in default, to undergo simple imprisonment for a period of one month each.
JUDGMENT :
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 Rs. 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 Rs. 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 Rs. 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
