Delhi District Court
Fir No:105/09; Ps Bhajan Pura; U/S ... vs . Akram @ Kana on 23 March, 2011
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FIR NO:105/09; PS BHAJAN PURA; U/S 395/397 IPC ; STATE VS. AKRAM @ KANA
IN THE COURT OF SH. B.S. CHUMBAK:ADDL. SESSIONS JUDGE
DELHI
Case ID Number 02402R0333182009
Session Case No. 39/10
Assigned to Sessions 29/11/10
Arguments heard on 23/03/11
Date of order 23/03/11
FIR NO. 105/09
Police Station BHAJAN PURA
Under Section 395/397 IPC
Out come of the judgment Acquitted
STATE VS AKRAM @ KANA
S/O JINDA HUSSAIN
R/O C-45/2 GALI NO.2,
CHAUHAN BANGAR,
DELHI
Present: Sh. S.K. Dass Ld. Addl. PP for state.
Sh. N.S. Raghav Advocate on behalf of accused.
JUDGMENT
1. Initially on 12.3.09 a case u/s 382/34 IPC was registered at PS Bhajan Pura vide FIR no. 105/09 on the basis of complaint filed by Dilshad Ali s/o Buniyad Ali r/o C-12/541 Yamuna Vihar against some unknown person.
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FIR NO:105/09; PS BHAJAN PURA; U/S 395/397 IPC ; STATE VS. AKRAM @ KANA
2. Brief facts arising out of this case are that on 11.03.09 at about 9:30 p.m on receipt of an information vide DD no. 32A with regard to committing robbery by three/four persons ASI Baldev Raj alongwith Ct. Surender Singh reached at the spot i.e house no. C-12/541 Yamuna Vihar. On reaching there they saw the house hold articles lying scattered at the ground floor of the house and Almirah was found open. One Dilshad Ali s/o Buniyad Ali met at the spot and got his statement recorded which is as follows :
"On 11.3.09 at about 8:30 p.m his brother Naushad Ali had gone to recite Namaj at Masjid while leaving the door of first floor opened. In the meantime at about 8:45 p.m three/four unknown persons entered into his bed room. He alongwith his wife and his four months daughter was watching T.V. All the three persons extended threat of handing over the key of the Almirah.
When he refused to hand over the keys in the meantime three more persons entered into his house and thereafter two more persons again entered, three persons who had entered at first instance remained in his bed room and remaining five persons had gone to another room. Three persons among them were having illegal arms in their possession. They broke open the lock of Almirah and removed the gold jewellery and Page 2/17 3 FIR NO:105/09; PS BHAJAN PURA; U/S 395/397 IPC ; STATE VS. AKRAM @ KANA currency notes from grey colour bag, removed Rs.17 lacs in cash and 65 Tola of golden jewellery and run away from the spot while bolting the door from outside. While leaving the spot they extended threat of keeping quite and also stated that they all were going at second floor of the house. He informed the PCR. In the meantime at about 9:12 p.m his father also reached there."
3. After registration of the case investigations were initiated, crime team was called at the spot, site plan was prepared at the instance of complainant, statement of witnesses were recorded. During the course of investigation and on 17.3.09 portrait of accused persons were prepared. Their search was conducted. Thereafter further investigation of this case was assigned to Inspector Hans Raj on 18.07.09.
4. On 03.08.09 an information vide DD no. 42B was received by duty officer wherein it was informed that at about 3:56 p.m an information was received through SI Sanjeev Kumar AEC Crime Team Branch that accused Akram s/o Jinda Hussain was arrested u/s 41(1) of Cr.P.C by him and other team members. He made disclosure before SI Sanjeev Page 3/17 4 FIR NO:105/09; PS BHAJAN PURA; U/S 395/397 IPC ; STATE VS. AKRAM @ KANA Kumar AEC Crime Team, R.K. Puram with regard to commission of offence of this case. Accused was also arrested in a case u/s 302/34 IPC registered at PS Seelam Pur vide FIR no. 297/08. The relevant paper were taken over by SI Sanjeev Kumar. On 07.08.09 TIP of accused Akram was schedule to be fixed but he refused to join the TIP proceedings. Accused was arrested in this case, statement of witnesses were recorded and no case property was recovered at his instance and after completion of all the necessary investigation challan u/s 173 Cr.P.C was presented in the court of Ld. MM.
5. Ld. MM after taking cognizance for the offence supplied the copies of the challan to accused as provided u/s 207 Cr.P.C and case was fixed for framing of charge.
6. Ld. MM vide order dated 18.3.10 framed the charge for the offence u/s 382/34 IPC against the accused to which he pleaded not guilty and claimed trial. Thereafter case was fixed for prosecution evidence.
7. Complainant was examined on 13.05.10 and after his examination Ld. Addl. Page 4/17 5
FIR NO:105/09; PS BHAJAN PURA; U/S 395/397 IPC ; STATE VS. AKRAM @ KANA PP for state moved an application u/s 323 Cr.P.C on the ground that during the examination in chief of PW1 the witness stated that accused person robbed him and his family members by use of deadly weapons and in view of testimony of PW in the present case ingredients of section 397 IPC were attracted and requested for committal of the case on the ground that offence u/s 397 IPC is exclusively triable by the court of Sessions and accordingly, case was committed to the court of sessions and on turn allocated to this court for trial.
8. After hearing arguments on behalf of Ld. Counsel for both the parties and considering the facts and circumstances of this case and the material placed on record by the IO a prima facie case for the offence u/s 395/397 IPC was made out. Charge framed accordingly to which he pleaded not guilty and claimed trial, therefore, case was fixed for prosecution evidence.
9. Dilshad Ali, complainant appeared as (PW1), Ct. Surender as (PW2), Ms. Zarina as (PW3), Ferahana Begum as (PW4), HC Yashvir as (PW5), Buniyad Ali as (PW6), SI Sanjiv Kumar as (PW7), Inspector Hans Raj Thakral as (PW8), thereafter no PW was left to be examined, therefore, prosecution evidence was closed.
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10. Brief testimony of all the PW's are as follows:
(i) PW 1 deposed that on 11/3/2009 at about 8.30 p.m he along with his mother, wife and his daughter were watching TV. His father had gone to recite Namaj. In the meantime three persons, one of them was having a country made katta, second was having a knife and third was also having a country made katta, entered into his room and extended threat of keeping quite. One of them told him to hand over the keys of Almirah. His wife told to accused persons that her father-in- law had taken the keys of Almirah with him. When his mother had inquired about their identity and objected for entering into their house, all the accused again extended threat of keeping quite and shown their intention only to remove the currency notes and jewellary articles from the Almirah. They forcibly break open the lock of almirah with the help of churri which they were having in their possession, and all the articles i.e jewellary articles weighing about 65 Tolas of gold, watch etc., one bag containing some documents and currency notes amounting to Rs. 17 Lacs, from the Page 6/17 7 FIR NO:105/09; PS BHAJAN PURA; U/S 395/397 IPC ; STATE VS. AKRAM @ KANA Locker of the Almirah were removed. They also removed one another bag containing the clothes of his daughter and took out all her clothes from bag and put small bag of the stolen articles in that bag. They all compelled them to sit in the room on the point of country made katta and after fifteen minutes they all left his house, while bolting the door from out side. While leaving the room they also extended threat of keeping quite as they all intended to go to first floor of his house. He further deposed that they remained silent till 8.50 p.m and thereafter they tried to see the accused persons through the window of the kitchen. His father was sitting out side the room and he asked him to open the door from out side. Accordingly his father opened the door from out side. He narrated the whole incident to him and also called the PCR. He also make telephonic call to his brother who was living at the first floor and in front of his house respectively. His brother as well as Mohalla people gathered at his house, after about twenty minutes police officials also reached there. He was taken to the police station for making statement and accordingly he made statement Ex.PW1/A bearing his signature at Page 7/17 8 FIR NO:105/09; PS BHAJAN PURA; U/S 395/397 IPC ; STATE VS. AKRAM @ KANA point A. He was also taken to some police stations by the police officials but he failed to identify any of the accused persons on seeing the photographs. Case was registered. He was called several times by the police officials. He also deposed that accused persons also removed the gold bangles, ear rings worn by his mother and his wife and kept the same in his pocket. He can identify the accused persons when shown to him but one among them was in muffled face and was also having Halmet with him.
During his cross examination by Ld. Counsel for accused he deposed that first three persons entered in his house and left his house without saying anything and second set of three persons extended threats and committed the offence in his house. He also admitted that Bhajan Pura police officials called him at PS and shown one of the accused person arrested by them and he identified the accused person present in the court. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
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FIR NO:105/09; PS BHAJAN PURA; U/S 395/397 IPC ; STATE VS. AKRAM @ KANA During cross examination by Sh. N.S. Raghav Ld. Counsel for accused he further deposed that crime team police official had shown the accused after his arrest in another case. Rest of his testimony is reiterated by him as submitted by him during examination in chief.
(ii) PW2 deposed that on 11.3.09 as per directions of duty officer he joined the investigation of this case with ASI Baldev Raj and went at house no. C-12 /541 Yamuna Vihar and on reaching there he saw the house hold articles were lying scattered in the room. One Senior police official alongwith staff also reached there. ASI Baldev Raj recorded the statement of Dilshad Ali, prepared a rukka and handed over the same to him for registration of the FIR. Accordingly, after registration of the FIR he returned to the spot and handed over the copy of the FIR to IO. During his cross examination he reiterated his testimony as submitted by him.
(iii) PW3 deposed that she cannot recollect the year, month and Page 9/17 10 FIR NO:105/09; PS BHAJAN PURA; U/S 395/397 IPC ; STATE VS. AKRAM @ KANA date of the incident. It was the incident of about two years back and was the day of Dulandi. She alongwith her daughter in law and son were watching T.V. Her husband had gone to recite Namaj. First two persons entered into her house and another person followed them. She became perplexed after seeing the three persons entering the room. Out of those three persons one person put katta on the head of his son and second person demanded key of almirah from her daughter in law. The person who had entered in the house, one of them was having Chura who had demanded key of the almirah. The lock of the Almirah was forcibly break open and took out the boxes containing the jewellary. They took out the gold jewelery, of about 65 tolas, they also removed 1 kg /1 &1/2kg of silver jewelery from the almirah, they also break open the other almirah and took about Rs.17,00,000/-(Seventeen Lacs). They kept all the jewellary and cash in a bag. They took out the clothes from the bag and then put the cash and jewellary inside the bag but she cannot identify the accused person due to laps of time.
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FIR NO:105/09; PS BHAJAN PURA; U/S 395/397 IPC ; STATE VS. AKRAM @ KANA During her cross examination by Ld. Addl. PP for state she failed to identify the accused rather specifically stated that accused person present in the court is not the person who committed robbery in his house.
(iv) PW4 again corroborated the testimony of PW1 and PW3 but she also failed to identify the accused present in the court and specifically stated that accused present in the court is not the person who pointed out a chhura towards her and removed the jewellery articles and cash from Almirah kept in the room.
(v) PW5 is the duty officer. He recorded formal FIR no.105/09 on the basis of rukka sent by ASI Bladev Raj through Ct. Surender for registration of FIR. Copy of FIR is Ex.PW5/A. He also endorsement on the same which is Ex.PW5/B. He further deposed that after registration of the case investigation of this case was assigned to Inspector Ram Kishore.
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(vi) PW6 is the complainant of this case. He also corroborated the testimony of other public witnesses to the extent that 7/8 persons entered into their house and committed robbery of 17 lacs cash and 65 tola gold from their house and they were having arms in their possession but he failed to identify the accused present in the court is the same who committed robbery in his house.
(vii) PW7 is the IO who had arrested the accused u/s 41.1(a) Cr.P.C and also recorded disclosure statement of accused wherein he disclosed regarding committing robbery pertaining to FIR no. 105/09. Disclosure statement is Ex.PW7/A and copy of calandra is Ex.PW7/B. He further deposed that he had informed the IO of this case regarding factum of disclosure statement by the accused of the present case. During his cross examination he reiterated his testimony as submitted by him during examination in chief.
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(viii) PW8 is the IO who corroborated the testimony of all the PW's from the initial stage to last stage i.e w.e.f the date of receiving the information of making disclosure statement by AEC Crime Branch u/s 41.1(a) Cr.P.C . He further deposed that on 6.8.09 he moved an application for seeking TIP proceedings of the case which was fixed for 11.08.09 but on that day accused refused to join the TIP proceedings on the ground that he has already been shown to the witness. However, disclosure statement of the accused was recorded and after completion of all the necessary investigation challan u/s 173 Cr.P.C was presented before the court against accused Akram @ Kana. Thereafter, prosecution evidence was closed and case was fixed for examination of accused u/s 313 Cr.P.C. During the course of examination of accused u/s 313 Cr.P.C he converted all the allegations as alleged against him and submitted that he is innocent and falsely implicated in this case, therefore, case was fixed for final arguments.
11. Arguments on behalf of Ld. Addl. PP for state and Ld. Counsel Page 13/17 14 FIR NO:105/09; PS BHAJAN PURA; U/S 395/397 IPC ; STATE VS. AKRAM @ KANA on behalf of accused heard. Ld. Counsel for accused submitted that before convicting the accused under any penal of law it is the duty of the prosecution to prove its case beyond reasonable doubt and in the present case no incriminating corroborative evidence is brought on record by the prosecution against the accused.
12. In support of his contention it is submitted that only PW1 Dilshad Ali identified the accused in the court but during his cross examination he specifically stated that inspector AEC Crime Team shown the accused to him at PS for his identification and due to this reason he identified the accused in the court. The ground taken by the accused not to join the TIP proceedings is the same which has been proved by PW1 and in such circumstances the refusal by the accused person to join the TIP proceedings no adverse inference can be drawn against the accused person as accused has already been shown to the witnesses and also placed his reliance on a decided case cited as Ajesh Kumar Vs. State 2010 (1) Crimes 320 (Delhi) wherein it is Page 14/17 15 FIR NO:105/09; PS BHAJAN PURA; U/S 395/397 IPC ; STATE VS. AKRAM @ KANA observed as under :
"Appellants robbed victim of his gold ring and brief case at knife point in dead of night at but stop where victim PW5 was waiting for bus-Appellants/accused arrested in some other criminal case and in their confession disclosed their involvement in the incident of this case - They refused to join TIP proceedings. In such circumstances it was held that identification of appellants by PW5 in trial could not be accepted as he had seen the photographs of appellants/accused before arranging TIP."
13. Except PW1 none of the public witnesses had identified the accused as the person who committed robbery on the day, time and place of incident. No recovery of the gold jewellery/currency notes is affected. Rather nothing was recovered at the instance of accused and in such circumstances it is submitted that prosecution totally failed to prove its case and requested for acquittal of accused.
14. On the contrary Ld. Addl. PP for state submitted that PW1 has Page 15/17 16 FIR NO:105/09; PS BHAJAN PURA; U/S 395/397 IPC ; STATE VS. AKRAM @ KANA specifically identified the accused persons as the person who alongwith other co-accused entered into the house of complainant and committed robbery of currency notes and jewellery articles and factum of commission of offence is further corroborated by other public witnesses. Factum of registration of the case is proved by PW2, PW5. Factum of arrest and factum of recording disclosure statement is proved by PW7. Testimony of remaining PW's i.e police officials are proved by Inspector Hans Raj and in such circumstances it cannot be said that prosecution has failed to prove its case beyond reasonable doubt and requested for conviction of the accused.
15. After hearing arguments and taking into consideration the facts and circumstances of the case and the evidence adduced by the prosecution as well as the confrontations and contradictions brought on record by the prosecution during the cross examination of the witnesses coupled with the fact that PW1 identified the accused only on the basis of the fact that accused has already been shown to him at PS in another Page 16/17 17 FIR NO:105/09; PS BHAJAN PURA; U/S 395/397 IPC ; STATE VS. AKRAM @ KANA cases. In such circumstances, I am of the considered view that refusal to join the TIP and on the basis of testimony of PW1 the conviction of the accused would not be justified and accordingly, I am of the considered view that prosecution failed to prove its case against him, therefore, accused Akram @ Kana is acquitted of the charge u/sec. 395/397 IPC as alleged against him.
16. The bail bond/ surety bond furnished by the accused shall remain in force till the expiry of six months and accused is further directed to appear before the appellant court, if he is required to appear before the appellant court in view of the provision of Section 437A Cr.P.C. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (B.S. CHUMBAK)
DATED Dt. 23rd March 2011 ASJ-3 (North-East) KKD
DELHI
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