Delhi District Court
State vs . 1. Nazim on 29 May, 2023
IN THE COURT OF ARUN SUKHIJA: ADDL. SESSIONS
JUDGE-03: EAST DISTRICT: KKD COURTS: DELHI.
SC No. 218/2016
State Vs. 1. Nazim
S/o Sh. Chhote Khan
R/o H. No. 4412-D, Gali No. 7,
Ajeet Nagar, Delhi
2. Suraj
S/o Sh. Ram Sanehi
(expired)
FIR No. : 310/2014
Under Sections : 392/397/307/411/34 IPC
& 27/25 Arms Act
Police Station : Gandhi Nagar
Chargesheet Filed on : 04.06.2015
Chargesheet Allocated on : 22.07.2015
Transferred to this Court on : 26.07.2022
Judgment Reserved on : 15.05.2023
Judgment Announced on : 29.05.2023
::- J U D G M E N T -::
1.Necessary filtered facts, precisely, as per the report under Section 173 of Code of Criminal Procedure, 1973 (in short "CrPC"), are that police set in motion on receipt of DD No. 16A dated 16.05.2014 and the same was lodged with PS Gandhi Nagar, on which police party reached the place of incident, where, one Sh. Ashok Kumar, the complainant/victim met and got lodged his report inter alia alleging therein that he runs a shop under the name and style of Bhagwati Jewelers and on that day, at about 1.30 p.m., while he was present at his shop, one boy aged about 20-22 years, covered his face with handkerchief, wearing black coloured goggles, came to his shop and kept FIR No.310/2014 PS Gandhi Nagar State Vs. Nazim etc. Page No.: 1 of 11 the bag, brought by him, on the counter of the said shop and suddenly, after taking a knife from that bag, threatened him not to raise any noise, otherwise, he would be killed and on seeing all this, he (complainant) became terrified. It is also stated that meanwhile, the said boy took gold chains and rings and when the said boy was about to leave, complainant took hammer and after breaking the main gate of the shop, tried to chase the said culprit and even other persons also chased said culprit. Said culprit sat on a motorcycle of his associate, which was already standing nearby that place, ran and while, on the way being chased, one Mukesh - owner of a shop nearby, gave sariya blow in order to stop them, meanwhile, said culprit fired a shot aiming towards said Mukesh but hit to a lady, who was present nearby. Said Katta (countrymade pistol) was thrown at that place and thereafter, both culprits left that placed on that motorcycle. Thereafter, on arrival of the police, said Katta (countrymade pistol) was produced to the police.
2. From the facts and circumstances, case under Sections 392/397/398/307/34 of Indian Penal Code (in short "IPC") and Sections 27/25 Arms Act was registered. Some formal proceedings were also conducted.
3. It is also the case of prosecution that during investigations of this case, on 27.05.2014, accused Nazim was apprehended and arrested. Said accused also got recovered part of robbed items and during judicial TIP, said accused was correctly identified by the complainant. Thereafter, on 07.06.2014, accused Suraj was formally arrested on the basis of the Disclosure Statement made by accused Nazim.
FIR No.310/2014PS Gandhi Nagar State Vs. Nazim etc. Page No.: 2 of 11 On concluding the investigations of this case, present chargesheet was filed before the Court of learned Metropolitan Magistrate to face trial for the offences, for which, they have been charge sheeted.
4. After compliance of provisions of Section 207 CrPC by the Court of ld. MM, case was committed to the Court of Sessions as Section 397 IPC, involved in the present matter, is exclusively triable by it.
5. Vide order dated 30.11.2015 passed by ld. predecessor of this Court, Charges under Sections 307 IPC; 397 IPC; 411 IPC and 25 & 27 Arms Act, were framed against accused Nazim. Vide order of said date, both above mentioned accused persons were charged for the offences punishable under Sections 392/34 IPC. To the said charges, all these accused persons pleaded not guilty and claimed their trial.
6. It is pertinent to mention here that during the prosecution evidence, accused Suraj is reported to have expired and accordingly, the proceedings against him stood abated.
7. Prosecution took help of total twelve witnesses to prove its case. These witnesses are as follows:-
(a) PW-1 Satish Sharma is witness to the effect that on 16.05.2014 at about 1.35 p.m., while he was present near Ajeet Nagar Pulia, he noticed that a person, on being chased by the public with Pakro Pakro, fired a shot from countrymade pistol, which hit a lady, on which, he made a call to police by dialling 100 number.
(b) PW-2 Constable Manohar accompanied the IO and is a witness to the seizure of articles and proved the memos. This witness also got the case registered on FIR No.310/2014 PS Gandhi Nagar State Vs. Nazim etc. Page No.: 3 of 11 ruqqa being handed-over to him.
(c) PW-3 Mukesh is a witness, who tried to chase culprits and even tried to give sariya blow but that person fired a shot but same hit to a lady, who was passing nearby and then, both culprits left that place while sitting on a motorcycle.
(d) PW-4 ASI Neelam, Duty Officer, proved the copy of
the FIR Ex.PW4/B.
(e) PW-5 Ashok Kumar is a complainant.
(f) PW-6 SI Ravi Kant, reached the place of incident
and prepared SOC Report Ex.PW6/A.
(g) PW-7 SI Sanjeev snapped photographs of the place
of incident and proved the same as Ex.P5/P6 to P- 11 (colly.) with their negatives as Ex.PW7/A.
(h) PW-8 ASI Governor is part IO of the case and he arrested accused Nazim and proved the memos as Ex.PW8/A to J.
(i) PW-9 ASI Ved Prakash deposited the exhibits of this case with FSL.
(j) PW-10 Sh. Surender Kumar, IPS, proved the sanction accorded under Section 39 Arms Act - Ex.PW10/A.
(k) PW-11 Ms. Anubha Lal, FSL, proved FSL report Ex.PW11/A.
(l) PW-12 SI Joginder is the Investigating Officer of the case, who got the case registered and proved the memos prepared by him in the present matter.
8. During prosecution evidence, accused Nazim made statement under Section 294 CrPC admitting TIP proceedings as Ex.C1 and statement of Rajiv Hussain.
FIR No.310/2014PS Gandhi Nagar State Vs. Nazim etc. Page No.: 4 of 11
9. Detailed testimony of the witnesses concerned will be discussed at relevant time of judgment.
10. All the incriminating evidence, which has come on record, has been put to accused Nazim under Section 313 CrPC. This accused denied all the incriminating evidence put to him. This accused further pleaded that no such crime was ever committed by him nor got recovered anything from him. He further pleaded that he was called in the police station on the pretext of inquiry and he never made any disclosure statement and police obtained his signatures on end number of papers, which were later on used against him. Accused did not claim over case property but opted to lead DE.
11. DW-1 Mst. Saida was produced by accused in his defence, who is his mother. This witness deposed that on 16.05.2014, his son (accused) was present in his house being ill and she was busy to take care of him. This witness further deposed that on 26.05.2014, police officials came to his house and took his son to police station on the pretext of an inquiry and even she also accompanied him to police station, where, Ashok Kumar, Goldsmith of their vicinity, was present and his son was implicated in this case later on.
12. I have heard the submissions of ld. Addl. PP for the State and ld. defence counsel. I have also perused the material available on record with the law on the issues in question.
13. Ld. Addl. P.P. for the State argued that the prosecution has proved its case beyond all reasonable doubts by examining the prosecution witnesses that robbery was committed in the shop of complainant and even while trying to flee FIR No.310/2014 PS Gandhi Nagar State Vs. Nazim etc. Page No.: 5 of 11 away from the spot, firing was made by culprit. Ld. Addl. PP for the State also submitted that there may be various reasons for not identifying the culprits but recovery, at the instance of the accused, is an indication that he was involved in the present matter and thus, prayed for conviction to the accused, for the offences, for which, he has been charged with.
14. Per contra, ld. defence counsel submitted that first of all, defence witnesses be treated at par with the prosecution witnesses and as such, present accused is entitled for acquittal for the offences, for which, he has been charged with.
15. Besides the above, ld. defence counsel submitted that admittedly, all the material public witnesses have failed to identify the present accused as being responsible for the crime in question, in any manner. It is also submitted that all the material public witnesses have been cross-examined at length by State and despite their cross-examination, they have stuck to the stand taken by them during their examination-in-chief and as such, prosecution has failed to bring any incriminating against the present accused for the offences punishable under Sections 392/34 or Section 397 IPC, for which, accused is entitled for acquittal. Qua offences punishable under Section 411 IPC and Sections 27/25 Arms Act, arguments advanced by ld. defence counsel, are that since despite opportunity, non-joining of any public witness creates doubt on the prosecution story. Besides the above, it was also submitted by ld. counsel that though, accused has been charged for the offence punishable under Section 307 IPC but victim for the said FIR No.310/2014 PS Gandhi Nagar State Vs. Nazim etc. Page No.: 6 of 11 offence, as prosecution, claimed that one lady was hit by firing, neither cited nor produced and all this shrouded the prosecution case and benefit of the same must be given to the accused. One of the contentions of ld. defence counsel is that very interestingly, as per the prosecution case, accused Nazim was arrested on 27.05.2014 i.e. after about eleven days of the incident, but nothing has been brought on record as to how and at whose pointing-out and/or under which circumstances, said accused was arrested and all this put a question mark on the prosecution story and for the same, prosecution case qua recovery and other aspects, also falls flat and benefit of the same must be given to the accused and as such, prayed for acquittal of the accused for said offences as well.
16. Having carefully gone through the entire material on record and have considered the rival submissions of the parties in the light of the law laid down on the issue in question after due care.
17. This case has three prongs - one for the offence punishable under Sections 392/34 & Section 397 IPC; another Section 307 IPC and other under Section 411 IPC & Sections 27/25 Arms Act.
18. Firstly, Court has to see the evidentiary value of defence witnesses. It is settled law that defence witnesses cannot always be termed to be a tainted one and they are entitled to equal treatment and equal respect, as that of the prosecution and for holding these view, this Court is taking support of the cases reported as 2002 (1) JCC 385 (Supreme Court of India) titled as State of Haryana Vs. Ram Singh and also Anil Sharma & Ors. Vs. State of FIR No.310/2014 PS Gandhi Nagar State Vs. Nazim etc. Page No.: 7 of 11 Jharkhand [2004 (3) RCR (Cri) 774].
19. Besides the above, in other case reported as Ajay Goswami Vs. State 2011 (2) 1279 and Dudh Nath Pandey Vs. State of UP, AIR 1981 Supreme Court 911, it has also been observed that defence witnesses are entitled to equal treatment with those of the prosecution and courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often they tell lies but so do the prosecution witnesses. Further, in case reported as Ronal Kiprono Ramkat Vs. State of Haryana, 2001 (3) RCR Cr. 767, Hon'ble Court observed as - "Court cannot expect the accused to establish his defence by the same standard that the prosecution should establish the guilt of an accused beyond reasonable doubt - it was enough to show that the defence was probable in the given circumstances".
20. Now, coming to the evidence of defence witnesses put forward by the present accused. Very interestingly, first of all, no complaint or any police call was made by either any member of the family of the accused or accused, for his (accused) implication falsely in the present matter. The said witness was unable to tell the name and/rank of any police official came to their house. Besides all these issues, it is also to be seen that no such suggestion was ever put to any of the material witnesses namely PW-8 or PW-12 to the effect that accused was taken to the police station on the pretext of any inquiry, as alleged. All this creates doubt on the defence put forward by this accused. Story, put forward by these witnesses, is not trustworthy and it seems that this is an afterthought and is not tenable in the eyes of FIR No.310/2014 PS Gandhi Nagar State Vs. Nazim etc. Page No.: 8 of 11 law.
21. Not discussing much on this issue, Court will deal with the merits of the case on the basis of prosecution evidence.
22. Qua the offence punishable under Sections 392/34 IPC and Section 397 IPC, material witness is PW-5 Ashok Kumar. Though, this witness narrated the incident committed upon him, but on the point of identity of the accused, this witness did not support the prosecution case. Though, the present accused was identified during judicial TIP proceedings but when this witness appeared before the Court, he failed to identify the present accused and even despite cross-examination conducted by State, this witness stuck to his stand taken by him during his examination-in- chief on the point of the identity of the present accused. Other material witnesses, who had seen the accused, immediately after the incident, are PW-1 Satish Sharma and PW-3 Mukesh. As per the prosecution case, both these witnesses had also seen the accused persons while running and firing. Both these witnesses also narrated the incident but on the point of identity, neither of them supported the prosecution case. Both these witnesses were cross- examined by the State but despite the same, both of them stuck to the stand taken by them during their examination- in-chief and as such, all these witnesses failed to identify the present accused as responsible for the crime committed qua offence punishable under Sections 392/34 IPC; Section 397 IPC and Section 307 IPC.
23. Now, coming to the issue of Section 411 IPC and Sections 27/25 Arms Act.
24. Very interestingly, as per the cross-examination conducted FIR No.310/2014 PS Gandhi Nagar State Vs. Nazim etc. Page No.: 9 of 11 on PW-12 SI Joginder Singh on 17.03.2023, accused himself came to the police station, pursuance to the notice served upon him and then, he was arrested. This shows that when accused himself came to the police station, police officials have ample opportunity and sufficient time to join public witness(es). As per the prosecution case, recovery was effected from nearby tube well. Said place of recovery and police station must have some distance. Even from the alleged place of recovery, no public witness was joined. Said place is an easily accessible place to the public. Though, not important, but it also to be kept in mind that why one person would keep any such items i.e. gold items and that too, three gold chains at such a place after committing a robbery committed on broad day light and thereafter, keep the same at such a place, which is easily accessible to the public. He was having sufficient time to keep those items at a safer place or even sold the said items, which otherwise, was the object of committing the robbery of the robbers. Besides the said recovered gold times, he also got recovered dagger, which was also kept by him at that place. Though, it has been observed by various Courts in catena of judgments that non- examination of public witnesses is not fatal to the prosecution case but each case has to be seen in its own facts and circumstances. As far as the charge under Sections 25/27 of Arms Act, nothing has come on record from any witness that dagger was ever used in the present case. It is the primary duty of prosecution to prove its case beyond all reasonable doubts and has to stand on its own legs. In the present case, prosecution has not been able to FIR No.310/2014 PS Gandhi Nagar State Vs. Nazim etc. Page No.: 10 of 11 prove its case beyond all reasonable doubts for the offences punishable under Section 411 IPC and also Sections 27/25 Arms Act and as such, accused is entitled for the benefit of the same. The accused Nazim never claimed that gold articles belonged to him and as such, superdarinama, if any, stands cancelled.
25. As such, from the above observations and discussion, this Court is of the view that prosecution has failed to prove its case for any of the offences, for which, present accused has been charged with. Accordingly, accused Nazim is acquitted of the offences punishable under Sections 392/34 IPC; 397 IPC; 307 IPC; 411 IPC and 27/25 Arms Act.
26. If there is any superdarinama, same be cancelled and case property, if any, be confiscated to State, after expiry of period of appeal/revision, if any.
File be consigned to Record Room after due compliance.
Announced in the open Court on this 29th day of May, 2023.
(ARUN SUKHIJA) Additional Sessions Judge-03 (East):
Karkardooma Courts: Delhi.FIR No.310/2014
PS Gandhi Nagar State Vs. Nazim etc. Page No.: 11 of 11