Delhi District Court
State vs 1) Nasir on 25 November, 2011
IN THE COURT OF SH. LAL SINGH, ASJ02, NEW DELHI
DISTRICT PATIALA HOUSE COURTS, NEW DELHI
Case ID No. 02403R0194322010
Session Case No. 12/11
State Versus 1) Nasir
S/o Sh. Ali Hassan
R/o Gali No. 10, Near Yadav Dairy,
Gagan Vihar, Bhopra,
Sahibabad, Distt. Ghaziabad (U.P) ....( A1)
2) Akash
S/o Sh. Sohal Lal
R/o B782, Gagan Vihar, Near Chamunda
Mandir, Bhopura, Sahibabad,
Distt. Ghaziabad (U.P) .... ( A2)
3) Chandan @ Babar
S/o Sh. Suresh Chandar,
R/o Jhuggin No. A36, Road No. 64, New
Seema Puri, Sharad PuriII, Delhi .... ( A3)
FIR No. 41/10
U/s: 397/411/34 IPC
PS: Parliament Street
Date of institution of the case : 17.07.2010
Date when the case reserved for judgment : 17.11.2011
Date of announcement of judgment : 25.11.2011
Session Case No. 12/11 1/19
JUDGMENT
1. Accused persons namely, Nasir (A1), Akash (A2), Chandan @ Babar (A3), were arrested by the police of PS Parliament Street vide FIR No. 41/10 and were challaned to the court for the trial for the commission of offence punishable u/s 397/411/34 IPC. In nutshell, the prosecution version as unfolded during trial is as follows:
2. On 13.03.2010, ASI Hari Singh received DD No. 31 A from PS, Parliament Street and thereafter, he alongwith Ct. Rakesh went to the place of occurrence, K.G. Marg, Asia House, where they met Smt. Poonam and Avdesh Yadav, driver of the TSR alongwith the TSR bearing No. DL1RL4454. Smt. Poonam has given her statement to ASI Hari Singh. In her statement given to the police, Smt. Poonam stated that on 12.03.2010 she came to the New Delhi railway station from Saharanpur by train and at around 11.15 pm she hired a TSR from prepaid booth at New Delhi railway station Ajmeri Gate side for defence colony. At about 11.30 pm, when TSR reached near K.G. Marg, Asia House then a motorcycle overtake the TSR and stopped the TSR. There were three persons on the motorcycle and one boy had caught hold the TSR driver and threatened with knife and another boy, who had covered his face had shown pistol to complainant and this boy had snatched complainant's gold chain alongwith pendent from the neck, three finger rings, one gold bangle (kada) and one black colour purse containing one Session Case No. 12/11 2/19 mobile phone Nokia having no. 9868415044 and cash around Rs. 5,000/ to 6,000/ alongwith some documents. The complainant, in her statement, had also given descriptions of the accused persons. In her statement, given to the police, she has stated that apart from her articles, the accused persons also snatched Rs. 500/ from the TSR driver. The police has registered the case u/s 392/34 IPC against the accused persons. During the course of investigation, ASI Hari Singh, prepared the site plan of the spot and recorded the statement of the witnesses. On 18.03.2010, the further investigation of the case was handed over to inspector Muktiyar Singh and during the course of investigation, he received DD No. 33 B, dated 18.03.2010, in which ASI Kuldeep Singh from PS Adarsh Nagar had informed that accused persons arrested in FIR No. 62/10, namely Akash, Nasir, Chandan and Karan had confessed their involvement in FIR No. 41/10, PS Parliament Street. IO of the case had obtained all the documents, i.e. seizure memo of jewelery articles, seizure memo of motorcycles, photocopies of statements of witnesses and photocopies of the disclosure statement of accused persons of FIR No. 62/10 PS Adarsh Nagar. He had also recorded the statement u/s 161 Cr. P.C of ASI Kuldeep Singh, IO of the case in FIR No. 62/10. All the three accused persons were arrested on 25.03.2010 in the present case in FIR No. 41/10. The police has also got conducted the TIP of the accused persons and complainant Smt. Poonam had identified accused Akash in Session Case No. 12/11 3/19 the TIP. On 04.05.2010, the police had also got conducted the TIP of jewelery articles and complainant Poonam had identified the jewelery articles. The complainant had also produced bill of the mobile phone to the police which was seized vide seizure memo by the police. The police has also got recovered from accused Nasir the motorcycle bearing no. DL3SBG6715 from Sahibabad, which was used in the commission of offence in the present case by the accused persons. The police has also got recovered from accused Chandan one country made pistol (katta) used by accused Akash. After completion of the investigation police has filed charge sheet in the court.
3. After compliance of the provisions of sections 207 & 208 Cr.P.C. Ld. MM committed the case to the court of session.
4. After hearing Ld. Addl. PP for the state and Ld. defence counsel for all the accused persons, charge u/s 392/34 IPC was ordered to be framed against all the accused persons vide order dated 18.08.2010. Separate charge u/s 397 IPC were ordered to be framed against the accused Akash and accused Nasir vide order dated 18.08.2010. All the accused persons pleaded not guilty to the charge and claimed trial.
5. To bring home its case the prosecution examined nineteen witnesses in all namely PW 1 Smt. Poonam, PW 2 Avdhesh Yadav, PW 3 HC Pritam Chand, PW 4 Devki Nandan Sharma, PW 5 SI Kuldeep Singh, PW 6 ASI Mahavir Singh, PW 7 HC Satish Kumar, PW 8 HC Session Case No. 12/11 4/19 Laxmi Narain, PW 9 Inspector Muktiyar Singh, PW 10 Naubat Singh, PW 11 Ct. Rakesh, PW 12 Ct. Rajesh Kumar, PW 13 ASI Balvinder Singh, PW 14 ASI Hari Singh, PW 15 HC Yashpal, PW 16 Sh. Jitender Mishra, the Ld. MM, PW 17 Inspector Brij Pal Singh, PW 18 Ms. Nishi Arora, PW 19 HC Samarjeet.
6. PW 1 Complainant Poonam deposed that on 12.03.2010 She hired a prepaid Auto (TSR) from Ajmeri Gate exit side of the New Delhi Railway Station for her residence and while they were passing through K.G. Marg road and had cross the red light around 11:30 P.M then one motorcycle over took the Auto Ricksha. There were three riders on the motorcycle. She further deposed that motorcycle came in front of the TSR and stopped the TSR and one of those three occupants of the motorcycle, took out a knife and pointed it towards the driver of the TSR and another boy wearing helmet kept on sitting on the motorcycle and third boy who had covered his face up to eyes by the cloth, pointed a pistol towards her. She stated that this boy who pointed pistol towards her had snatched her purse containing rupees around five to six thousand and her gold chain and some documents. This witness deposed that accused further snatched a gold chain with locket from her neck and one gold bangle (Kada) from her right hand and three gold finger rings and one NOKIA mobile handset which was in the purse. The witness had identified accused Akash in the Court. She has failed to identify other Session Case No. 12/11 5/19 two accused persons in the Court. Complainant had proved her complaint given to the police as Ex.PW1/A. On 04.05.2010 she joined TIP in respect to stolen articles and she had identified all her stolen gold ornaments/jewelery items and also identified mobile handset. The witness had identified a gold bangle (Kada) Ex.PW1/P1, two gold chains Ex.PW1/P2 (collectively), three gold finger rings Ex.PW1/P3 (collectively) and mobile phone Ex.PW1/P4 in the Court, as the same which the culprits had taken away in this incident of robbery.
7. PW2 is the driver of the TSR bearing no. DL1RL4454. This witness deposed that his TSR was hired as a prepaid vehicle from Ajmeri Gate side, New Delhi, Railway Station at around 11:15 P.M. This witness further deposed that one madam boarded his Auto Rickshaw and she had to go to defence colony and when they reached in front of Asia House a motorcycle over took and came in front of Auto and stopped it. Thereafter, the occupants of the motorcycle got down and inflicted slaps on his face and other person who had covered his face up to his nose with handkerchief pointed a pistol like weapon towards passengers madam and the boy who was hitting him had put a knife on his back. This witness had identified accused Nasir in the Court as the same person who had put knife on his back and who took rupees five hundred from his pocket. This witness had also identified the TSR bearing no. DL1RL4454 in the Court as the same vehicle which was driven by him Session Case No. 12/11 6/19 on the day of incident.
8. PW3 HC Pritam Chand was also remained associated with the investigation of this case. In the presence of this witness three boys were apprehended and they were searched and from accused Chandan country made pistol loaded with cartridge was recovered and from accused Akash polythene bag containing jewelery items were recovered. Third accused whose name was revealed as Deva was carrying a jute bag and one laptop. This witness identified during trial in the court one gold bangle (kada) Ex.P1, two gold chains Ex.P2 (collectively), three gold rings Ex.P3 collectively, one mobile phone Ex.P4 to be the same recovered from accused Akash in his presence. In the presence of this witness accused persons on interrogation disclosed the name of their associate accused Nasir and thereafter they proceeded for search of accused Nasir. This witness deposed that accused Nasir was coming towards PS Harsh Vihar, then he was identified by accused Chandan, Akash and Deva. At the instance of accused Nasir motorcycle bearing no. DL3SBG8719 recovered from the parking of DLF Bhopra, in the presence of this witness.
9. PW4 Devki Nandan Sharma is a formal witness and deposed that on 08.03.2010 he was returning to his house on motorcycle bearing no. DL3SBG6715 and when he reached between Khajuri Khas and Shastri Park one Indica vehicle stopped in front of the motorcycle. One of the Session Case No. 12/11 7/19 occupants of the Indica vehicle got down and entered in to altercation with him and forcibly took the motorcycle and drove it away. This witness had brought the motorcycle in the Court during trial which was on the superdari.
10. PW5 HC Kuldeep Singh was also associated with the investigation and in his presence accused Chandan, Akash and Deva were apprehended and this witness conducted the personal search of accused Chandan, accused Karan @ Deva and accused Akash and he also prepared memos and proceedings regarding this and also arrested the accused persons and interrogated them. In the presence of this witness accused Nasir got recovered one motorcycle from parking of Bhopra. Thereafter all the four accused persons were brought to PS Adarsh Nagar and this witness deposited the case property in the Malkhana. He handed over the copy of documents to the IO of the case FIR No. 41/10 which was prepared by him in FIR No. 62/10. He had also identified the jewelery articles and mobile phone recovered from accused Akash.
11. PW6 ASI Mahavir Singh is a formal witness, who has proved DD No. 31A as Ex.PW6/A. This witness had registered FIR No. 41/10 in the present case which he had proved as Ex.PW6/C.
12. PW7 HC Satish Kumar had brought register no. 19, PS New Usmanpur containing entry in respect of FIR No. 82/10 and its case property motorcycle no. DL3SBG6715 and as per record the motorcycle Session Case No. 12/11 8/19 was given on superdari to one Devki Nandan. This witness has proved the entry no. 1930 as Ex.PW7/A.
13. PW8 HC Lakshmi Narain had brought register no. 19 of PS Adarsh Nagar and as per which the jewelery articles and mobile phone recovered from accused Akash in FIR No. 62/10 were deposited by ASI Kuldeep Singh and on 27.03.2010 the case property were given to ASI Balvinder Singh of PS Parliament Street vide RC No. 24/21. This witness has proved entry no. 3564 as Ex.PW8/A and RC No. 24/21 as Ex.PW8/B.
14. On 18.03.2010, the investigation of case FIR No. 41/10 was assigned to PW9 Inspector Muktiyar Singh. Duty officer of PS Parliament Street gave him DD No. 33B which is Ex.PW9/A wherein ASI Kuldeep Singh of PS Adarsh Nagar had got recorded an information to this effect that he had arrested four accused persons in FIR No. 62/10, who had disclosed about the case FIR No. 41/2010. He contacted with ASI Kuldeep Singh of PS Adarsh Nagar and collected the seizure memos of jewelery items, mobile and motorcycle and other documents. On 25.03.2010 accused persons namely Chandan, Nasir and Akash were formally arrested vide arrest memo Ex.PW9/B, Ex.PW9/C and Ex.PW9/C respectively. This witness had got conducted the TIP of the accused persons and also got conducted the TIP of recovered jewelery items. Complainant had identified accused Akash in TIP and also Session Case No. 12/11 9/19 identified her jewelery items and mobile phone.
15. PW 10 Naubat Singh was parking attendant at Nagar Nigam Parking, Dilshad Extension. This witness deposed that on 14.03.2010 one persons had parked his motorcycle in the parking and on 15.03.2010 some police officials came to him and inquired about the parking slip. The motorcycle and slip were taken by the police. This witness specifically stated that the persons who had parked his motorcycle on 14.03.2010 did not come to him with slip.
16. PW 11 Ct. Rakesh is a formal witness who took the rukka to PS and got registered the FIR and thereafter handed over copy of FIR and rukka to the IO SI Hari Singh.
17. PW 12 Ct. Rajesh Kumar was also associated in the investigation and on 25.03.2010 accused persons were arrested in his presence in the Patiala House Courts, vide arrest memo Ex.PW9/B of accused Chandan, Ex.PW9/C of accused Nasir and Ex.PW9/D of accused Akash.
18. PW 13 ASI Balvinder Singh, went to the PS, Adarsh Nagar on the direction of IO and brought the sealed pullanda sealed with seal of KSN vide RC No. 24/21/10 and handed over the same to MHCM, PS Parliament Street. He had also brought the mobile phone Nokia Ex.P4 from PS Adarsh Nagar and also deposited the same in Malkhana. This witness had identified the mobile phone.
19. PW 14 ASI Hari Singh, received DD No. 31A and on the receipt Session Case No. 12/11 10/19 of the same he alongwith Ct. Rakesh Kumar reached at the spot where he recorded the statement of the complainant which is Ex.PW1/A and he attested her signature vide his endorsement Ex.PW14/A. He had also made endorsement on the statement of complainant vide Ex.PW14/B and also got registered FIR No. 41/10 Ex.PW6/C. This witness had prepared the site plan Ex.PW14/C and also recorded the statement of TSR driver. After the transfer of investigation to Inspector Muktiyar Singh, he handed over the documents prepared by him to Inspector Muktiyar Singh.
20. PW 15 HC Yashpal, is also a formal witness. In his presence, accused persons were arrested vide arrest memo Ex.PW9/B, Ex.PW9/C and Ex.PW9/D.
21. PW 16 Sh. Jitender Mishra, the Ld. MM, conducted the TIP of accused Akash and the witness Ms. Poonam correctly identified the accused Akash. TIP report regarding accused Akash is Ex.PW16/A. PW16 also conducted TIP of accused Chandan and witness Ms. Poonam has failed to identify the accused Chandan. The TIP report of accused Chandan is Ex.PW16/C. PW16, Ld. MM, further conducted that TIP of accused Nasir and witness Ms. Poonam failed to identify the accused Nasir. TIP report regarding accused Nasir is Ex.PW16/D. On 04.05.2010 PW16, Ld. MM had further conducted the TIP of case property i.e., one gold bangle (kada), one gold ring bearing the mark of N, one gold ring with diamond, one gold ring with stone Pukhraj, two Session Case No. 12/11 11/19 gold chains. Witness Ms. Poonam correctly identified the case property. TIP report regarding case property is Ex.PW16/E.
22. PW 17 Inspector Brij Pal Singh, was member of the raiding party organized by ASI Kuldeep Singh as ASI Kuldeep Singh was investigating case FIR No. 62/10, PS Adarsh Nagar. In the presence of this witness accused persons were apprehended and their personal search were taken place. From the possession of accused Chandan, one country made pistol was recovered and from accused Karan @ Deva, one jute bag alongwith laptop was recovered and from accused Akash, who was carrying polythene bag and from the said bag a cloth parcel was recovered which was containing one gold bangle (Kada), three gold rings and two gold chains and one Nokia mobile phone. IO converted the gold articles, in a cloth parcel and sealed with the seal of KSM and also prepared the seizure memo of gold articles alongwith mobile phone vide seizure memo Ex.PW3/B. In the presence of this witness accused Nasir was apprehended at the instance of other accused persons and accused Nasir got recovered motorcycle bearing no. DL3SBG6715 from DLF parking Bhopra. This witness had identified all the accused persons during trial in the court.
23. PW 18 Ms. Nishi Arora had brought the judicial file of case FIR No. 62/10, PS Adarsh Nagar. In the said judicial file there were original seizure memos of jewelery articles recovered from accused Akash, Session Case No. 12/11 12/19 motorcycle bearing no. DL3SBG 6715 alongwith parking receipt recovered from accused Nasir, original disclosure statement of accused Akash, Chandan and Nasir and seizure memo of country made pistol recovered from accused Chandan and sketch of said country made pistol and copy of FIR.
24. PW 19 HC Samarjeet was posted in PS Parliament Street on 27.03.2010 as Malkhana Moharar and on that day SI Balvinder Singh handed over him one sealed pullanda duly sealed with the seal of KSM and he deposited the same pullanda in the Malkhana and made entry in the register no. 19. This witness stated that case property was remained intact during his custody. He has proved the relevant entries as Ex.PW19/A.
25. In order to explain the circumstances appearing in the evidence, all the incriminating evidence has been put against all the accused persons, while examining them U/s. 313 Cr.P.C. All the accused persons pleaded that they are innocent and they have been falsely implicated in the present case. Accused Nasir pleaded that he was picked up by the police from Seelampur and his brother had given information to the police on 100 number regarding this and also his brother informed the police through telegram. He further submitted that all the recoveries shown against him are false and fabricated. Accused Akash pleaded while examining him U/s. 313 Cr.P.C. that he has been picked up by the Session Case No. 12/11 13/19 police from his house and all recoveries shown against him in this case are false and fabricated. Accused Chandan @ Babar pleaded that he was picked up by the police from the road in front of his house and all the recoveries shown against him in this case are false and fabricated.
26. Accused Akash and Chandan did not lead defence evidence. Accused Nasir lead defence evidence and brought DW1 Nanhe. DW1 Nanhe deposed that on 12th day of the month his brother Nasir did not come to home and on next day morning i.e., 13th day of month he went to his village Badayun to search his brother Nasir but he was not found there. Thereafter, he came back to Delhi and called on 100 number but police did not pay any heed to his telephone call. He went to the PS and asked the police official to give the details of his call made 100 number and police handed over the call details of 100 number. He further deposed that it might be on 16.03.10, they received a call from PS Adarsh Nagar and ASI told them that their brother Nasir is in police station. DW1 stated that on his query why his brother was arrested, police failed to give any response regarding this.
27. I have heard the argument on behalf of state as well as on behalf of all the accused persons. On behalf of the state, Ld. Addl. PP presented the facts of the case and submitted that the accused persons have committed the offence and prosecution has fully succeeded in proving the guilt of the accused persons in the present case. Ld. Addl. PP Session Case No. 12/11 14/19 vehemently submitted that prosecution witnesses have supported the prosecution case.
28. On the other hand, Sh. Rahul Thukral, Ld. Amicus Curiae for the accused Akash and Chandan and Advocate for the accused Nasir submitted that the prosecution has made out a false case against the accused persons. He submitted that the identification by PW2 to accused Chandan is not believable as he himself stated that accused Chandan was wearing helmet and if a person is wearing helmet then he can not be identified. He further submitted that PW1 complainant in her cross examination stated that after the incident they reached at defence colony gate and from there the colony guard gave a call to her brother from his mobile phone and her brother arrived there and he gave a call to police on 100 number and thereafter they came back to the place of incident alongwith the Auto driver but this fact was not mentioned in the charge sheet. Ld. defence counsel further submitted that PW4 and PW10 did not identified the accused persons. He argued that the complainant in her cross examination stated that prior to the TIP of accused persons on 03.05.10, the police had called her to PS Adarsh Nagar and some culprits were shown to her, therefore accused persons were shown to the complainant prior to the TIP. He further submitted that the police had not recovered cloth alleged to be used by the accused Akash to wrap his face. Ld. defence Counsel argued that there is no proof of the prepaid Session Case No. 12/11 15/19 slip of the TSR, whether it was issued by the prepaid booth, as there was no mention of the name of the driver and nor the number of the TSR was written on it. He submitted that moreover, the complainant stated that she had given the prepaid slip to the police, whereas PW2 Avdesh Kumar stated that he had given the prepaid slip to the police, therefore there is contradiction in the statement of PW1 and PW2 in this regard. He further submitted that there is no recovery from the accused Nasir and the TIP of accused Nasir from the TSR driver Avdesh was not made and complainant Poonam had not identified accused Nasir in the TIP. No jewelery was recovered from accused Nasir and PW10 Naubat Singh failed to identify accused Nasir during trial in the Court.
29. I have heard the rival submissions and contentions made by the counsels of the accused persons and Ld. Addl. PP for the state. I have also gone through the records of the case and carefully scrutinized the evidence on record. PW1 is complainant in the present case who had categorically stated in her deposition that there were three persons on the motorcycle and after overtaking the TSR, they had stopped the TSR and one of the occupants of the motorcycle took out the knife and pointed it towards the TSR driver and other boy who was wearing helmet kept sitting on the motorcycle and third boy who had covered his face up to eyes pointed pistol towards her. She deposed that the boy who had pointed pistol towards her had snatched her purse containing five to six Session Case No. 12/11 16/19 thousands rupees and gold chains and she had given her bangle (kada) as demanded by him. PW1 Complainant had proved her complaint given to the police as Ex.PW1/A. Complainant had identified accused Akash in the TIP as well as during the trial, however, complainant failed to identify other two accused persons in the TIP as well as during trial in the Court. But PW2 Avdesh Yadav who was the driver of the TSR had identified accused Nasir during the trial, as the same person who had put a knife on his back and snatched Rs.500/ from him. PW2 also identified accused Chandan in the Court during trial, as the same person who was sitting on the motorcycle when other two accused were indulging in robbery.
30. PW1 complainant had identified the case property i.e one gold bangle (kada), three gold ring, two gold chains, during her TIP as well as in the court during trial. She had also identified mobile phone Ex.PW1/P4. Case property i.e gold articles were recovered from the possession of accused Akash when he was apprehended. Accused Nasir was apprehended from Harsh Vihar and he got recovered motorcycle from the parking of DLF Bhopra. PW3 HC Pritam Chand, PW5 SI Kuldeep Singh, PW17 Inspector Brij Pal had identified the case property i.e the gold articles and mobile phone recovered from accused Akash. So far as involvement of the accused persons in the present case, the prosecution has succeeded to establish the involvement of all the three Session Case No. 12/11 17/19 accused persons in the present case. However, accused Nasir produced evidence in his defence but DW1 could not even state the month in which his brother had not came back to their house but in cross examination he stated that on 12.03.2010, his brother accused Nasir left his house. In his crossexamination DW1 deposed that he did not made any complaint to the police regarding the missing of his brother Nasir on 12.03.2010 and 13.03.2010. On the one hand, DW1 stated that he went to his village Badayun to search his brother accused Nasir on 13th day of the month and also on 14th day of the month inquired about Nasir from his relatives but why he had not made complaint or report to the police on 12.03.10 and 13.03.10, regarding this DW1 failed to give any satisfactorily clarification, therefore, the plea that accused Nasir was falsely implicated is not sustainable. In their statement recorded u/s 313 Cr.P.C accused Akash pleaded that he was picked up by the police from his house and accused Chandan pleaded that he was picked up from the road in front of his house but both the accused persons failed to bring any evidence regarding this aspect that they were picked up from the above said places by the police. Therefore, the prosecution has been able to establish the guilt of all the three accused persons namely, Nasir (A1), Akash (A2) and Chandan @ Babar (A3) u/s 392/34 IPC.
31. It is also the case of prosecution that accused Akash pointed pistol towards the complainant while committing robbery and accused Nasir Session Case No. 12/11 18/19 put the knife on the back of PW2 Avdesh Yadav, driver of the TSR, but no weapon of offence was recovered from accused Akash and Nasir. However country made pistol was stated to be recovered from accused Chandan but in the present case no weapon of offence was produced during trial by the prosecution. Therefore, the prosecution has failed to prove and establish the offence u/s 397 IPC against accused Akash and accused Nasir and hence accused Akash and Nasir are acquitted for the offence u/s 397 IPC.
32. Therefore, as a sequel of above said discussion and findings, I am of the considered view that the prosecution has been fully able to prove the offence u/s 392/34 IPC against all the three accused persons Nasir (A1), Akash (A2) and Chandan @ Babar (A3). As such, all the three accused persons Nasir (A1), Akash (A2) and Chandan @ Babar (A3) are held guilty and convicted for offence u/s 392/34 IPC.
Announced in the open court (LAL SINGH)
on 25th November, 2011 ASJ02, PHC/ND
25.11.2011
Session Case No. 12/11 19/19