Delhi District Court
State vs . Asif And Anr. on 20 December, 2022
IN THE COURT OF MS. SHIVALI SHARMA,
ADDITIONAL SESSIONS JUDGE-03: WEST DISTRICT,
THC, DELHI.
CNR No. DLWT01-005196-2018
SC No. 396/2018
State Vs. Asif and Anr.
FIR No. 337/2017
U/s. 392/397/411/34 IPC
PS: Punjabi Bagh
JUDGMENT
1. Sr. No. of the case : 396-2018
2. Date of Committal to Sessions : 05.06.2018
3. Name of the complainant : Sh. Arun Kumar
4. Date of Commission of Offence : 10.07.2017
5. Name and Parentage of Accused : (i) Ashif S/o
Keshar Khan
R/o House no.
1202, Gali no. 14,
New Mustafabad
Rajeev Gandhi
Nagar Delhi.
(ii) Aas Mohd. S/o
Mohd. Irshad
R/o House no. 367,
20 Foota Road,
Prem Nagar, Near
Noor Mousque,
Loni Gaziabad,
U.P.
6.Offence complained of :U/s.392/397/411/34
IPC.
7.Offence Charged : Both accused
charged U/s. 392/34
SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 1/26
IPC. Accused
Ashif was also
charged for offence
u/s 397/411 IPC
R/w Section 27 of
Arms Act.
8.Plea of Guilt : Not guilty.
9. Final Order : Both accused are
acquitted for
offences charged.
10. Date on which Order Reserved : 14.12.2022
11. Date on which Order Announced : 20.12.2022
BRIEF FACTS AND REASONS FOR DECISION:
1. The case against accused Ashif and accused Aas Mohammad is that on 10.07.2017, at about 10:00 pm, at Main Rohtak Road, opposite Chulha (Stove) Market, Punjabi Bagh, Delhi both of them robbed complainant/victim Sh. Arun Kumar of his two gold chains, two gold rings and one diamond ring, cash of Rs.4,000/- and used a deadly weapon i.e. pistol at the time of commission of robbery. The accused persons were arrested on 27.09.2017 and were chargesheeted for the offences U/s. 392/397/411/34 IPC.
CHARGE:
2. Detailed arguments were heard on charge from Ld. Counsel for accused persons and Ld. Addl. PP for State.
Vide order dated 06.09.2018, charges were framed u/s SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 2/26 392/34 IPC against both the accused persons. Accused Ashif was also charged for the offence U/s. 411 IPC. Accused Ashif was also charged for offence u/s 397 IPC r/w Section 27 Arms Act. The accused persons pleaded not guilty to the charges and claimed trial.
PROSECUTION EVIDENCE:
3. The prosecution led evidence and examined 08 witnesses in all to bring home the charge against the accused persons.
4. PW1 Arun Kumar is the prime witness of the prosecution case being the victim as well as the complainant and the sole eye-witness of the reported incident. He deposed that on 10.07.2017, at about 10:00pm, he was returning to his home in his car bearing registration no. DL 2C AQ 0711.
When he reached near Main Rohtak Road, Near Gas Chulha Market, Punjabi Bagh, two persons came from his backside on a bike. They stopped the bike and knocked on the window glass of the car and told him that he was not properly driving the car. He rolled down his window glass. The pillion rider (witness identified him as accused Ashif) got down from the motorcycle and removed key from his car. Then he took out a pistol and pointing it on his head, snatched two gold chains from his neck and three diamond rings from his hand. He also took his purse containing Rs. 4000/- and after removing the cash, he handed over the empty purse to him.
SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 3/265. He deposed that he was not in a position to identify the second assailant but duly identified the accused Ashif as the assailant who had put pistol against his head.
6. He further deposed that he did not make any complaint on the date of incident under fear. However, on 12.07.2017, he made a complaint to the police which is Ex. PW-1/A. He also showed the place of incident to the police and identified his finger ring out of the robbed articles which was seized and recovered from the police during TIP of the case property. The TIP proceedings in this regard are Ex. PW-1/B.
7. He stated that he had gone to Tihar Jail for identification of the accused persons and had participated in the TIP proceedings.
8. He was cross-examined on behalf of State on the point of identity of accused Aas Mohd. @ Ashu. During his cross- examination, he was shown the TIP proceedings of accused Aas Mohd. @ Ashu( Ex. PW-1/C) and that of accused Ashif (Ex. PW-1/D). He identified his signatures on both the TIP proceedings. He admitted that during the TIP proceedings, he had identified accused Aas Mohd. @ Ashu out of the ten persons standing in a row. He was then shown Accused Aas Mohd.@ Ashu in the Court and was suggested that he was one of the assailants at the time of incident and was the same person who he had identified during the TIP proceedings. However, he denied the suggestion given by Ld. APP for the State to this effect. He also denied the suggestion that he was deliberately not SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 4/26 identifying accused Aas Mohd. @ Ashu as he had been influenced by his family members.
9. He was duly cross-examined on behalf of accused persons.
10.PW2- SI Tinku is a formal witness being the Duty Officer who proved the registration of the present FIR Ex. PW- 2/A, endorsement to this effect made on the rukka made by him as Ex. PW-2/B and certificate under Section 65 B of Indian Evidence Act as Ex. PW-2/C. He deposed that after registration of FIR, the rukka and copy of FIR were handed over to SI Pratap Singh for further investigation. Regarding registration of FIR, DD no.31A Ex. PW-2/D was recorded.
11. He was duly cross-examined on behalf of both the accused persons.
12. PW-3 Ct. Mehtab is again a formal witness, who had brought the case property from PS Moti Nagar to PS Punjabi Bagh vide RC no. 109/21/17 dated 21.11.2017 and handed over to the IO. The case property was sealed with the seal of DS and there was no tempering till it was in his possession.
13. He was duly cross-examined on behalf of both the accused persons.
14. PW-4 ASI Mahender Prakash is the first IO, who deposed that on 12.07.2017, complainant Arun Kumar met him at the PS and informed him about the incident. He recorded his statement, prepared the rukka and handed over the same to DO for registration of FIR. After registration of FIR, further investigation was marked to SI SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 5/26 Pratap Singh.
15. He was duly cross-examined on behalf of both the accused persons.
16. PW-5 SI Dipender Malik is the witness to the apprehension of the accused persons. He deposed that on 23.08.2017, at about 03:15 PM, he along with the other team members of the raiding team of special staff, West district, on receipt of a secret information had apprehended both the accused persons who were coming on a motorcycle from the side of Inderlok. On cursory search of both the accused persons, one loaded countrymade pistol each was recovered from their possession. Certain stolen jewellery and wrist watch were also recovered from their possession. He prepared sketch of the pistol and seized them. The recovered articles were also seized by him.
17. Both the accused persons were arrested in case FIR no.
211/17 PS Moti Nagar vide arrest memos Mark 5C and 5D. He also recorded disclosure statement of accused Asif and Aas Mohd which are Mark 5A and 5B respectively. He obtained two days PC remand of both the accused persons during which accused Ashif disclosed that he had kept the stolen diamond ring of the present case and one wrist watch of some other case in his house. At his instance, one diamond ring and one wrist watch were recovered from an iron box kept in one room on the ground floor of house of accused Ashif. The diamond ring was converted into a cloth pullanda, sealed with the seal of SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 6/26 DS and seized vide memo Mark 5E.
18. On the next day, at the instance of both the accused persons, the receiver of stolen jewellery namely Amar Ullah was also arrested in case FIR no. 211/17 PS Moti Nagar. However, no stolen jewellery pertaining to the present case was recovered from his possession.
19. Accused persons did not dispute the identity of finger ring released on superdari to the complainant and accordingly its production for identification by the witnesses was dispensed with.
20. The witness was duly cross-examined on behalf of both the accused persons.
21. PW-6 Sh. Sandeep Kumar is the Ahlmad from the court of Sh. Lal Singh, Ld. ASJ-05, West District who produced the original case file of FIR no. 211/17 PS Hari Nagar. The originals of Mark 5A to 5E were seen from the record and exhibited as Ex. PW-6/A to Ex. PW-6/E.
22. PW-7 HC Sunil Kumar is again a formal witness being the MHC(M) Punjabi Bagh, who deposed that on 21.11.2017, the case property of the present case along with RC no. 109/21/17 of PS Moti Nagar was deposited at PS Punjabi Bagh vide entry at serial no. 4065 of Register no. 19. The relevant entry was proved as Ex. PW-7/A. He also deposed that on 23.11.2017, the IO removed the case property from malkhana vide RC no. 241/21/17(Ex. PW- 7/B) for conducting of TIP. After conducting of TIP, the case property sealed with the seal of Ld. MM was re- deposited in the malkhana. The case property was released SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 7/26 on superdari on 07.03.2018.
23. He was duly cross-examined on behalf of both the accused persons.
24. PW-8 Inspector Pratap Singh is the second IO of the case to whom investigation of the case was marked on 12.07.2017. During investigation, he prepared site plan Ex. PW-8/A at the instance of complainant Arun Kumar. On 25.08.2017, an information was received at PS regarding arrest of Accused Aas Mohd. @ Ashu and Ashif in case FIR no. 211/17 PS Moti Nagar and their disclosure regarding their involvement in the present case and recovery of one stolen gold ring from accused Ashif which was subject matter of the present case. He obtained the copies of the documents from the IO of the said case. On 27.09.2017, on his application, both the accused persons were produced before Ld. MM in muffled face. He formally arrested them vide memos Ex. PW-8/B and Ex. PW-8/C and recorded their disclosure statements Ex. PW- 8/D and Ex. PW-8/E. He got TIP of both the accused persons conducted on 07.10.2017 wherein both the accused were duly identified by complainant Arun Kumar.
25. The parcel containing the stolen gold ring was transferred from PS Moti Nagar to PS Punjabi Bagh vide RC no. 109/21/17. He seized the same vide seizure memo Ex. PW-3/A. On 23.11.2017, he got the TIP of the gold ring conducted wherein the same was identified by the complainant. He recorded statement of the witnesses, prepared the chargesheet and filed the same before the SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 8/26 court. He identified both the accused persons.
26. He was duly cross-examined on behalf of both the accused persons.
27. In addition to the above evidence, both the accused persons admitted the TIP proceedings of the case property as well as their own TIP proceedings u/s 294 CrPC. Accordingly, the relevant witnesses were dropped from the list of witnesses by Ld. Additional PP for the State. STATEMENT OF ACCUSED:
28. All the incriminating evidence that came on record in the deposition of prosecution witnesses was put in detail to accused persons Ashif and Aas Mohd. @ Ashu and their statements were recorded U/s. 313 CrPC on 26.09.2022. They denied all the incriminating evidence and asserted that they were innocent and falsely implicated in the present case. Their photographs were shown to the complainant before recording of TIP proceedings. All the prosecution witnesses were interested witnesses and have deposed falsely against them.
DEFENCE EVIDENCE:
29. The accused persons Ashif and Aas Mohd. @ Ashu did not avail the opportunity to lead evidence in their defence.
30. Final arguments have been heard and record carefully perused.
JUDICIAL RESOLUTIONS:
31. It is a settled proposition of criminal law that prosecution is supposed to prove its case on the judicial file by leading cogent, convincing, reliable and trustworthy evidence SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 9/26 beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot derive the benefit from the weaknesses, if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and the onus to prove the case against the accused beyond reasonable doubts never shifts and always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal.
32. In the present case, both the accused persons are charged with the offence u/s 392/34 IPC. In addition, accused Ashif is also charged under Section 397 IPC r/w Section 27 of Arms Act and in alternative for offence u/s 411 IPC.
33. Section 392 IPC provides punishment for the offence of robbery.
34.The offence of robbery is defined u/s 390 IPC as per which any kind of theft is robbery if in order to committing of the said theft, or in committing the theft, or in carrying away or attempting to carrying away property obtained by theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongful restraint.
35. The offence of theft is defined u/s 378 IPC as per which whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 10/2636. Thus, theft is the dishonest removal of movable property out of the possession of any person without the consent of that person. To bring home an offence u/s 378 IPC, the prosecution has to prove A) That there was a movable property.
B) That the said movable property was in possession of a person other than the accused.
C) that the accused took it out or moved it out of the possession of the said person.
D) That the accused did it dishonestly i.e. with intention to cause wrongful gain to himself or wrongful loss to another. E) That the accused took the movable property or moved it without the consent of the possessor of the same.
37. An analysis of Section 390 IPC would show that in order that theft may constitute robbery, prosecution has to establish A) in order to committing of theft; or B) in committing the theft; or C) in carrying away or attempting to carry away property obtained by theft D) The offender for that end i.e. any of the ends contemplated by A to C. E) Voluntarily causes or attempt to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.
38. In other words, theft would be robbery, if for any of the ends mentioned in A to C above, the offender voluntarily causes or attempts to cause to any person death or hurt or SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 11/26 wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.
39. Section 397 IPC provides that if, at the time of committing robbery, the offender uses any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than 7 years.
40. Section 397 IPC does not make any act an offence. It only provides minimum punishment for some offences under certain circumstances i.e. when deadly weapon is used or grevious hurt is caused or attempt to cause death or grievous hurt is made. Section 34 or 149 IPC have no application to a case covered by Section 397 IPC. Section 397 IPC cannot be applied constructively and relates only to the offender who actually uses the weapon. Guilt of the offence u/s 397 IPC can be attributed only to that offender who uses deadly weapons or causes grievous hurt to anyone during the course of commission of robber as Section 397 IPC negates the use of principle of vicarious liability u/s 34 IPC.
41. What is essential to satisfy the word "uses" for the purposes of Section 397 IPC is the robbery being committed by an offender who was armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in the mind of the victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 12/26 may be (Ashfaq Vs State Govt. of NCT of Delhi AIR 2004 SC 1253).
42. Section 27 Arms Act provides punishment for using arms and ammunition without license or prohibited arms and ammunitions.
43. Section 411 IPC provides punishment for dishonestly receiving stolen property.
44. Now, let us apply the above discussed definitions of the offences with which accused persons have been charged to the facts of the present case.
ARGUMENTS ON BEHALF OF ACCUSED AAS MOHD.@ ASHU.
45. It is argued by Ld. Counsel for accused Aas Mohd. @ Ashu that complainant/victim Arun Kumar is the sole eye witness to the alleged incident examined by the prosecution. He has failed to identify the accused Aas Mohd. @ Ashu during his examination before the court. He was even cross-examined by Ld. Additional PP for State regarding identification of accused Aas Mohd. @ Ashu but he categorically stated that he was not in a position to identify him as the second assailant. Rather he specifially testified that accused Aas Mohd. @ Ashu was not the person whom he had identified during the TIP proceedings. He also denied the suggestions of deposing under any kind of influence from Accused Aas Mohd. @ Ashu.
46. The only evidence against Accused Aas Mohd. @ Ashu on record is his identification by the complainant/PW-1 in TIP SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 13/26 proceedings Ex. PW-1/C. However, the said identification has only corroborative value and the failure of the complainant/PW-1 to identify the accused Aas Mohd. @ Ashu during his testimony recorded before the Court has rendered the TIP proceedings worthless in the eyes of law. It is not safe to convict Accused Aas Mohd. @ Ashu merely relying upon the TIP proceedings Ex. PW-1/C especially when PW-1/complainant has categorically testified during his cross-examination on behalf of the State that Aas Mohd. @ Ashu present in the Court is not the person whom he had identified during the TIP proceedings. Accordingly, acquittal of accused Aas Mohd. @ Ashu is prayed giving him the benefit of doubt. ARGUMENTS ON BEHALF OF ACCUSED ASHIF.
47. It is submitted by Ld. LAC for accused Ashif that it would be highly unsafe to convict accused Ashif on the sole testimony of the complainant/PW-1 which is not corroborated by testimony of any public witness. This is more so when as per the testimony of PW-1, he had neither raised any noise at the time of alleged incident nor immediately reported the matter to the police. The original complaint Ex. PW-1/A was made only on 12.07.2017 at about 08:20 PM, although the alleged incident had occurred on 10.07.2017 at about 10:00 PM. This unexplained delay of almost 48 hours in reporting the matter to the police is sufficient to cloud the entire case of the prosecution with doubt. The benefit of this doubt has to be given to the accused.
SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 14/2648.Moreover, the alleged pistol used at the time of commission of the offence has neither been recovered from accused Ashif nor identified by the complainant as the weapon of offence or connected to the present case. There is nothing on record to presume whether the alleged pistol was an actual pistol or merely a toy pistol allegedly used by accused Ashif at the time of alleged incident. Accordingly, the evidence on record is highly insufficient to convict the accused Aashif for offences u/s 397 IPC and Section 27 Arms Act. Even, the allegedly recovered pistol from the possession of accused Ashif has not been connected to the present case.
49.Also, there is no public witness to the recovery of one diamond ring from the possession of accused Ashif. Despite the case of prosecution that recovery of the ring was effected from the house of accused Ashif, neither any of his family members nor any of the neighbours were made a witness to the alleged recovery. Even, the prosecution witness to recovery SI Dipender Malik / PW5 has admitted during his cross-examination that the mother of the accused was present at the house of accused Ashif at the time of alleged recovery, still she is not made a witness to the seizure memo. This clearly clouds the recovery of one allegedly robbed ring belonging to the complainant at the instance of accused Ashif.
50. In addition to this, the identification of accused Ashif by the complainant/ PW-1 is highly doubtful as he had not given any description of the alleged accused persons in his SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 15/26 original complaint Ex. PW-1/A. The TIP proceedings of the accused persons were conducted on 07.10.2017 i.e. after almost three months of the alleged incident. In the absence of description of the accused persons given by the complainant at the time of the original complaint Ex. PW- 1/A, the identification of accused persons in TIP proceedings after almost three months of the alleged incident is clearly doubtful and appears to be manipulated by the IO by showing the accused persons or their photographs to the complainant prior to conducting of TIP proceedings. This is more so as the TIP proceedings Ex. PW-1/C and Ex. PW-1/D also do not record as to on what basis, the accused persons were identified by the witness. Complainant / PW1 has already raised a dispute regarding the TIP proceedings of accused Aas Mohd. @ Ashu which is sufficient to doubt even the TIP proceedings of accused Ashif. In these circumstances, it is submitted that entire case of the prosecution is clouded with doubt and the benefit of this doubt has to be given to the accused persons.
ARGUMENTS ON BEHALF OF ADDITIONAL PP FOR THE STATE:
51. It is argued by Ld. Additional PP for the State that complainant / victim / PW-1 has duly supported the case of prosecution regarding the incident of robbery at gun point that was committed by the accused persons against him on 10.07.2017 at about 10.00 pm. His testimony regarding the occurrence of the incident is in consonance with his SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 16/26 original complaint which is Ex.PW1/A. He has duly identified accused Ashif as one of the assailant in the Court and has also detailed his role in the incident. Despite lengthy cross-examination, Ld. Defence counsel could not raise any doubt on his testimony and he has with stood the test of cross-examination.
52. As regards identification of accused Aas Mohd @ Ashu, although it is correct that he is not identified by PW-1 during his examination before the Court but the TIP proceedings of accused Aas Mohd @ Ashu are duly admitted by PW-1 as well as the accused persons u/s 294 CrPC. The said TIP proceedings Ex. PW1/C clearly show that accused Aas Mohd @ Ashu was duly identified by the complainant / PW-1 as one of the assailant during the said proceedings. Complainant / PW-1 has also denied the suggestion that he was shown the photographs of Aas Mohd @ Ashu prior to conducting the TIP proceedings and accordingly his identification of accused Aas Mohd @ Ashu during the said proceedings cannot be faulted with. Whatever, may have been the reason because of which complainant / PW-1 did not identify the accused Aas Mohd @ Ashu during his testimony in the Court but his failure to so identify does not create a doubt on the fact that accused Aas Mohd @ Ashu was one of the assailant as his identity as one of the assailant is duly established by the TIP proceedings Ex. PW1/C.
53. As regards the argument of Ld. Defence Counsel SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 17/26 regarding non-availability or non-joining of any Independent public witness in the investigation or as a witness to the incident, it is submitted by Ld. Additional PP for State that the incident took place in the late hours in the night i.e around 10.00 pm and accordingly non- availability of independent public witnesses is explainable. Merely, because there is no independent public witness to the incident, it is not sufficient to doubt the testimony of the victim himself who admittedly had no previous enmity with the accused persons nor had any reason to falsely implicate them in the present case.
54. It is also submitted on behalf of the State that merely because the weapon of offence has not been recovered or identified by the complainant / PW-1, it is again not sufficient to doubt the occurrence of the incident itself especially when the use of dangerous weapon i.e Gun at the time of committing of the offence of robbery by accused Ashif has been duly deposed about and proved by the complainant / PW1.
55. It is further submitted that the recovery of robbed diamond ring of the complainant from the possession of accused Ashif is again duly proved by the testimony of PW5/SI Depender Malik. This witness was also subjected to lengthy cross-examination, however, the accused persons have failed to create any doubt on his testimony. Merely because PW5 is police witness, his testimony cannot be disregarded unless any particular motive for falsely implicating the accused persons available with him SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 18/26 comes on record. In the present case, the accused persons miserably failed to bring on record any motive available with PW5 for falsely implicating the accused persons in the present case or planting the recovery of robbed diamond ring belonging to the complainant on accused Ashif. The recovered diamond ring has also duly identified by the complainant vide TIP proceedings Ex. PW1/B which are not disputed by the accused persons. The accused persons have also not disputed the identity of the recovered diamond ring and accordingly its production for identification by the witnesses in the court was also dispensed with. In these circumstances, the accused persons cannot be permitted now to dispute the identity and recovery of the robbed diamond ring from the possession of accused Ashif.
56. It is submitted by the Ld. Additional APP for the State that considering the overall evidence on record, the offence charge against the accused persons are duly proved on record beyond any reasonable doubt. The accused persons have failed to bring on record any reason for their false implication in the present case and accordingly they deserve to be convicted for offences charged against them. FINDINGS
57. I have heard the arguments addressed by all concerned at length and have carefully perused the record.
58. Perusal of the original complaint dated 12.07.2017 (Ex. PW1/A) clearly show that although there are allegations of robbery by two unknown persons made by the SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 19/26 complainant, however, there is no mention of use of any pistol by any of the assailants at the time of commission of the offence of robbery. In complaint Ex. PW1/A the complainant had merely reported that on 10.07.2017 at about 10.00 pm at main Rohtak Road, Chula Market, Punjabi Bagh, his car was stopped by two unknown persons who were riding a motorcycle. The said persons threatened the complainant and robbed two gold chains which he was wearing in his neck, two gold rings and one diamond ring which he was wearing in his hand and Rs. 4000 from his wallet. He neither gave any description of the motorcycle and stated that he could not note the number or make of the motorcycle, nor he gave any description of the two robbers. However, he stated that he can identify the robbers if they come before him. There is no mention of use of any kind of dangerous weapons leave aside a pistol by any of the robbers at the time of commission of robbery in original tehrir Ex. PW1/A.
59. Record also show that complaint Ex. PW1/A has been made on 12.07.2017 at about 8.20 pm i.e after almost 48 hours of the alleged incident and the only reason given for not reporting the matter earlier is fear of the complainant. However, there is no explanation as to what was the reason because of which the complainant was under so much fear that he could not timely report the matter to the police.
60. On the record, there is another supplementary statement of the complainant recorded u/s 161 CrPC on 12.07.2017 itself which records that the motorcycle used by the robber SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 20/26 at the time of commission of offence was a Pulsar Bajaj motorcycle of black colour whose number could not be noted by the complainant. Again, there is no explanation on record as to how after making complaint Ex. PW1/A wherein complainant specifically stated that he had not noted the make and no. of the motorcycle, he suddenly remembered the make and colour of the motorcycle on the same very day.
61. Interestingly, there is another supplementary statement of complainant Arun Kumar recorded on 07.10.2017 after he had identified the accused persons in the TIP proceedings wherein for the first time he stated that at the time of the alleged incident accused Ashif had put a Gun on his head at the time of the commission of offence. This statement regarding use of Gun by one of the assailant at the time of commission of the offence of robbery was firstly made by complainant Arun Kumar on 07.10.2017 i.e after almost 3 months of the alleged incident. Although, it is correct that during his deposition before the Court, complainant/ PW1 duly supported the case of the prosecution as made out not only from the original complaint Ex. PW1/A but also from the supplementary statement dated 07.10.2017 regarding the use of gun at the time of the incident but there is no explanation on record as to why these allegations of use of gun by one of the assailant were not made by the complainant at the time of recording of the original complaint Ex PW1/A itself.
62. Original complaint Ex. PW1/A is also silent as to in what SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 21/26 manner the alleged incident of robbery had occurred. It simply recorded that at the time and place of incident while the complainant was in his car, the accused persons came on a motorcycle, threatened the complainant and robbed him. The details as regard the manner of occurrence of the incident as deposed by complainant PW1 is recorded in supplementary statement of the complainant dated 07.10.2017, wherein complainant stated that at the time of the incident accused Aas Mohd @ Ashu who was driving the motorcycle knocked on the window of his car and asked him to stop the car and drive properly and when he stopped the car, accused Ashif who was the pillion rider put a gun on his head and robbed him. Admittedly, both the accused persons were apprehended on 23.08.2017 in case FIR NO. 211/17, PS Moti Nagar. A copy of FIR No 211/17 PS Moti Nagar u/s 392/397/34 IPC is on record. Perusal of the same shows that the same manner of commission of the offence is recorded therein as improved in the present case vide supplementary statement of the complainant dated 07.10.2017.
63. There is no explanation on record as to why these additional facts regarding the manner of commission of offence, the details of make and colour of the motorcycle used by the accused persons at the time of the alleged offence and the fact of use of gun during the commission of offence were not reported by the complainant to the police in his original complaint Ex. PW1/A. There is again no explanation as to why and how these facts flashed in the SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 22/26 memory of the complainant after registration of subsequent FIR No. 211/17 PS Moti Nagar and apprehension of the accused persons in the said FIR on 23.08.2017 and recording of their disclosure statements therein.
64. These unexplained improvements in the case of the complainant are sufficient to create a doubt on his entire testimony and the benefit of this doubt is given to the accused persons. Considering these improvements and contradictions in the statements of complainant / PW1, I find it highly unsafe to convict the accused persons solely on his testimony which is not corroborated by any independent public witness.
65. As regards the identification of the accused persons, admittedly both the accused were apprehended in case FIR no. 211/17 PS Moti Nagar on 23.08.2017. They were arrested in the present case after one month of their apprehension i.e on 27.09.2017 despite the fact that they disclosed about their involvement in their discloser statements Ex. PW6/A and B, both dated 23.08.2017. The TIP proceedings of the accused persons were conducted on 07.10.2017 i.e after further 10 days of their arrest in the present case. In the circumstances, the identification of the accused persons by the complainant in the TIP proceedings after almost one and a half month of their apprehension cannot be safely used to convict the accused persons on the basis of their sole identification in the TIP proceedings only. The accused Aas Mohd. @ Ashu has not been identified by the complainant during his testimony in the SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 23/26 Court as one of the assailant rather the complainant /PW1 has disputed the TIP proceedings of Aas Mohd. @ Ashu Ex. PW1/C by testifying in his cross-examination by the Ld. Additional PP for the State that accused Aas Mohd. @ Ashu present in the court was not the person whom he had identified during the TIP proceedings. The TIP proceedings merely have corroborative value and the identification of the accused persons during testimony in the court cannot be dispensed with merely because the TIP was successful. In the absence of identification of accused Aas Mohd @ Ashu by complainant /PW1 in his testimony in the court, he cannot be convicted for the offences charged against him.
66. As regards accused Ashif although he has been duly identified by the complainant in court in addition to his identification in the TIP proceedings Ex. PW1/D, but the role ascribed to him in the deposition of PW1 is clearly not as per the original complaint PW1/A as discussed above. Accordingly, his mere identification by the complainant is not sufficient to convict him for the offences charged as the complainant himself is a doubtful witness and does not inspire the confidence of the court due to the reason noted above.Accordingly, his sole testimony not supported by any Independent public witness or any other independent evidence is not considered sufficient to hold that the offences u/s 392/397/34 IPC charged against accused Ashif have been duly proved beyond any reasonable doubt.
67. As regards the recovery of one robbed diamond ring from SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 24/26 the possession of accused Ashif, again a single witness to the said recovery i.e PW5 has been examined by the prosecution. PW5 has admitted the presence of mother of accused Ashif at his house at the time of alleged recovery, still she has not been made a witness to the recovery proceedings or seizure memo Ex. PW6/E. Admittedly, local police of PS New Mustfabad from where the recovery was affected were neither informed nor made to join the recovery proceedings for the reasons best known to PW5. Moreover, the recovery has been allegedly affected from the house of accused Ashif which was situated in a residential area, however, no neighbour has been joined in the recovery proceedings. In the absence of any corroborative evidence, I find it difficult to rely on the sole testimony of PW5 to hold that the recovery of the robbed diamond ring of the complainant has been affected at the instance of accused Ashif.
68. As regards the offence u/s 27 Arms Act, since the weapon of offence allegedly used in the commission of the offence in the present case has not been recovered there is nothing on record to presume that it was a prohibited arms and ammunition or that without license. IN the absence of recovery of weapon of offence, the conviction of u/s 27 Arms Act cannot be recorded.
69. In view of the reasons given above, I have no hesitation in holding that the prosecution has miserably failed to prove on record the offences charged against the accused SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 25/26 persons beyond any reasonable doubt. The benefit of the doubts on the case of the prosecution as detailed above has to be given to the accused persons. Thus, considering the overall evidence on record both the accused persons are acquitted for the offences charged against them giving them the benefit of doubt.
Digitally
signed by
SHIVALI
SHIVALI SHARMA
Announced in the open court SHARMA Date:
2022.12.20
15:05:26
+0530
Dated 20.12.2022.
(SHIVALI SHARMA)
ASJ-03/WEST/THC/DELHI
20.12.2022.
SC No. 396-18 State Vs. Ashif & Anr. FIR No. 337-2017 Page No. 26/26