Delhi District Court
State vs . 1. Masroor S/O Sh Manjoor Ali on 18 August, 2012
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 247/12
Computer ID No. 02406R0006192012
State Vs. 1. Masroor S/o Sh Manjoor Ali
R/o H.No. E104, Vijay park,
New Delhi.
(In custody since 10.10.2011)
2. Ajim S/o Sh Manjoor Ahmed
R/o H.No. 197, Kardampuri,
New Delhi.
(In custody since 10.10.2011)
FIR No : 361/11
P.S. : Sun Light Colony
U/s. : 394/397/34 IPC & 25/27/54/59 Arms Act
DATE OF INSTITUTION : 13.02.2012
JUDGMENT RESERVED ON : 14.08.2012
DATE OF DECISION : 18.08.2012
JUDGMENT:
1. Prosecution case in brief is that on receiving DD no. 24A dated 10.10.2011 SI Naresh Sangwan at around 1 am reached the spot where accused Azim and Masroor were handed over to him by Ct. Shish Ram and Ct. Kartar alongwith State Vs. Masroor Ali etc., SC No. 247/12, pg-1 of 26) one knife and katta and three live cartridges and other looted articles, thereafter, he recorded the statement of complainant Ravi Mishra present at the spot.
2. Complainant Ravi Mishra in his statement stated that on 10.10.2011 after leaving his relatives at New Delhi Railway Station when he was coming back alongwith Bir Singh going to the home of uncle of Bir Singh at Katwaria Sarai, they forgotten way of katwaria Sarai and at around 12.45 pm and when they reached Bhogal flyover they found one motorcycle bearing No.DL 37SDA 0566 red colour coming from wrong side and crossed his motorcycle and at that time he was urinating after parking his motorcycle, in the meanwhile, both the boys came back on motorcycle and asked from him way to Ashram and he told them he do not know the way then accused Azim opened the knife and started slapping him and put knife on his abdomen and took his purse from back pocket, when his friend Biru tried to intervened then the second accused Masroor pointed katta on Bir Singh and also threatened to shoot at him and taken out Rs. 120/ from the back pocket of Bir Singh, also slapped him and taken out the motorcycle papers from his front pocket. In the meanwhile they saw two police persons coming from Nizamuddin side towards them then both accused started running from the place, however on hearing their shouts they apprehended accused after chasing around 50 mtrs and produced both of them before SI Naresh Sangwan alongwith recovered knife, katta and the looted articles, thereafter, sketch memo of recovered katta and knife and live cartridges were prepared, it is also alleged that both the accused received injuries while falling at the time of apprehension. Pursuant to recording of his statement, State Vs. Masroor Ali etc., SC No. 247/12, pg-2 of 26) rukka was prepared and at around 3.45 am sent for registration of FIR.
3. During investigation police has prepared the site plan, seizure memo of knife, katta and motorcycle recovered from accused persons. IO/SI Naresh Sangwan also seized one black purse containing PAN card, Rs. 600/ and one paper on which customer name Ravi Mishra and M/s Pushpwati Motors alongwith LG dark coloured mobile of reliance connections and two keys of motorcycles . And further seized another black purse having PAN cards, ATM cards etc and four mobile phones and four bundles of key rings. Further arrested accused persons at the spot at around 6.45am and also recorded their disclosure statement. On completion of investigation, filed chargesheet.
4. On committal, charges u/s 394/34 IPC r/w section 397 IPC were framed against both accused. Accused Masroor was also charged for offence u/s 25./27/59 Arms Act and both accused pleaded not guilty and claimed trial.
5. Prosecution for substantiating charge , examined 9 prosecution witnesses. Summary details of their depositions are as follows.
Statement of Victim: PW2 Ravi Mishra, PW4 Bir Singh @ Biru and police officials PW3 Kartar Singh, PW5 Shish Ram alleged to have apprehended accused at spot:
6. PW2 Ravi Mishra deposed that on 10.10.2011 after leaving two relatives, he alongwith Bir Singh coming back to maternal uncle of Bir Singh at Katwari Sarai, but they forgot way to Katwaria Sarai and both were on separate motorcycles. At around 12.45 am when they reached Bhogal flyover, they noticed two boys coming on motorcycle bearing no. 0566 and they requested State Vs. Masroor Ali etc., SC No. 247/12, pg-3 of 26) them to tell way to Katwaria sarai, thereafter when doing natural call those boys came back and stopped their motorcycle and demanded money from him and on refusal one boy inflicted knife injury on his stomach and sntached purse from back pocket of his pant and another boy shown country made pistol to his friend and took his purse and also slapped him . The document of motorcycle of Biru was also snatched by that boy and they ran away from the spot. He further deposed that his purse containing PAN card, Rs. 300400 and further his mobile was also robbed and they also took keys of motorcycle and in the meanwhile, two police persons who were coming from back side chased them and apprehended them. Thereafter they also reached there and IO recorded his statement. And further prepared the sketch memo of country made pistol and live cartridges. However, stated that he cannot identify the accused persons and on being declared hostile in cross examination of Addl. PP he admitted seizure of various looted articles, but not identified katta, cartridges and knife and further denied that accused persons have shown them katta and knife. In cross examination on behalf of accused deposed that he signed on some blank appears and had not read those papers before signing the same.
7. PW4 Bir Singh @ Biru also deposed that on 09.10.2011 when he along with his friend Ravi Mishra coming back from New Delhi Railway Station and forgot the way to the house of their maternal uncle to Katwaria Sarai and when they were at Bhogal flyover at around 12 am, one motorcycle coming from wrong direction having two boys and one of the boy inflicted knife injury on the body of Ravi Mishra and snatched the purse and mobile phone from his possession State Vs. Masroor Ali etc., SC No. 247/12, pg-4 of 26) and another boy showed some weapon type and threatened him to remain away and robbed around Rs. 100/ from his pocket. In the meantime, two police persons came and apprehended them. He further deposed that he do not know whether any recovery was effected or not. However, police persons told them that their articles were recovered. On being declared hostile, denied seizure proceedings though deposed it is correct police apprehended those boys but again stated that they apprehended those boys but not seen those boys with police.
8. In his cross examination, he stated that it is correct that after incident they went to the spot and at PS their signatures were taken on some papers. Out of them, some were blank and some were written and further stated that he did not read the statements, recorded by the police.
9. PW3 Ct. Kartar Singh also deposed that on the intervening night on 09/10.10.11, he along with Ct. Shishram was on patrolling duty and at around 12.50 am while they were going towards Ashram from Nizamuddin, they noticed two boys were crying and pointed out towards one motorcycle going towards Ashram side and he immediately chased their motorcycle and apprehended both accused. In the meanwhile those boys i.e. Ravi Mishra and Bir Singh also reached and stated that they robbed him on the point of knife and Katta and thereafter, looted property alongwith knife and katta was recovered. Thereafter, IO came at spot and seized articles at the spot, IO also recorded the statements of complainant Ravi Mishra and sent him for medical examination. He further deposed that IO prepared rukka and sent through Ct. Shish Ram for State Vs. Masroor Ali etc., SC No. 247/12, pg-5 of 26) registration of FIR at PS and in the meanwhile Ravi Mishra also came at the spot. Thereafter, site plan was prepared at his instance and accused Azim was arrested and further motorcycle of the accused was also seized.
10. In cross examination, he deposed that they made departure entry at around 10 pm, however, he did not know the departure entry number and further stated that on hearing the shouting, they had not made any inquiry and went for chasing the accused persons and police from PS reached within 10 minutes and however could not tell the time. IO recorded the statement and Ravi Mishra and he remained at the spot till 6.30 am. He further deposed he could not tell in what sequence, the documents were prepared at the spot and he further stated that Ct. Shish Ram came to the spot at around 5.30 am. He further stated that IO had not taken the finger prints and denied the suggestion that accused was arrested because of quarrel taken place with one guard at Jeewan Nursing Home.
11. PW5 Ct. Shish Ram deposed that at on hearing the shout of the boys, they apprehended both the accused persons, thereafter Ravi Mishra and Bir Singh also came and told them that they were robbed by those accused persons and he informed the police and both accused persons along with Katta and three live cartridges and knife and looted articles were handed over to the IO. IO recorded statement of Ravi Mishra and made endorsement at around 3.45 am.
12. In cross examination, he stated that they saw both the complainants at the spot with their motorcycles and apprehended the accused persons on hearing their shout after 5060 yards and IO also reached the spot at around 12.55 am. IO State Vs. Masroor Ali etc., SC No. 247/12, pg-6 of 26) recorded statement of complainant at the spot at around 1.15 am before preparation of rukka. He sent him to PS along with rukka at around 3.45 am and further could not stated that at what time they left the spot after 5.15 am and also denied the suggestion that accused persons were arrested from Jivan Nursing Home, where some quarrel took place between the accused and one guard.
Statement of other police officials, experts etc.
13. PW1 HC Rajinder Singh being DO registered FIR on the night of 9/10.10.2011 on receiving rukka through Ct. Shish Ram at around 4 am.
14. PW6 Ct. Shakti on 05.01.2012 deposited case property in FSL Rohini.
15. PW 7 HC Ramesh Chand MHC(M) deposed that on 10.09.2011 IO deposited one sealed pulanda of country made pistol, 3 live cartridges, one sealed pulanda of knife, one motorcycle No. DL1SBA 0566, one mobile phone of LG alongwith one black colour purse containing Rs. 600/ PAN card, 3 mobile phones, lemon wing G5 alongwith one black purse containing Rs. 80, one PAN card and one SBI ATM card of Dimple Kumar. He made the entries of same at register no. 19 at Sl. And on 5.01.2012 at the direction of IO he handed over sealed pulanda of country made pistol alongwith cartridges to Ct. Shakti.
16. PW8 Dr. Vijay Singh examined complainant Ravi Mishra with alleged history of assault and found one incised wound simple in nature on abdomen.
17. PW9 SI Naresh Sangwan deposed that on receiving DD no.24A on 10.10.2011 he reached Bhogal flyover where he was handed over accused by Ct. Shish Ram and Ct. Kartar. Thereafter he seized the country made pistol, live cartridges State Vs. Masroor Ali etc., SC No. 247/12, pg-7 of 26) and knife recovered from accused persons. He further deposed that he also seized the purse containing articles at the spot and then prepared seizure memos regarding the same and also recorded statement of Ravi Mishra complainant. Thereafter, prepared rukka and sent it for registration of FIR. He further deposed that he prepared site plan at the instance of Ravi Mishra and also seized motorcycle of accused persons and further arrested him and conducted his personal search and deposited the case property in the malkhana. And further sent the exhibits i.e, country made pistol alongwith FSL to Rohini and on 28.03.2012 filed the ballistic report and also obtained sanction u/s 39.
18. In cross examination he deposed that he reached spot at around 1.10 am in night and had not made any DD entry with regard to fact that he was going in private car and first document he prepared at the spot is sketch of knife and all documents he prepared on bonnet of his car and remained at spot from 1 am to 9.30 am in morning. He further stated that he recorded statement of complainant between 1.30 am to 1.45 am and sent complainant for medical examination at around 2.30 am and complainant came back to spot between 3.15 am to 3.30 am and prepared rukka at spot at around 3.45 am. He further deposed that he prepared seizure memos before preparation of rukka. He further deposed that FIR was received at around 5.15 at spot and thereafter he prepared arrest memo, personal search memo, site plan and other documents and denied suggestions that accused persons were lifted from Jeewan Nursing home as they went to see their friends grandmother and quarrel took place there.
State Vs. Masroor Ali etc., SC No. 247/12, pg-8 of 26)
19. Accused persons in their statement u/s 313 Cr.P.C denied all incriminating circumstances put to them. And raised plea that they were falsely implicated in present case, but not opted to lead DE.
Material Exhibits:
20. Ex.PW9/A DD no.24A recorded at PS at around 12.55 pm regarding apprehension of the accused persons at the spot. Ex.PW2/B is the statement of PW2 complainant Ravi Mishra recorded by IO at spot pursuant to which rukka Ex.PW9/B was prepared and FIR Ex.PW1/A was registered. Ex.PW9/C is the site plan of place of occurrence. Ex.PW2/C is the sketch memo of the recovered knife. Ex.PW2/B is the sketch memo of recovered katta as well as 3 live cartridges. Ex.PW2/D is the seizure memo of recovered katta and cartridges. Ex.PW2/E is seizure memo of recovered knife. Ex.PW3/A is seizure memo of the recovered motorcycle on which accused persons were travelling at the time of incident. Ex.PW2/F is the seizure memo of looted purse of PW2 Ravi Mishra produced by Ct. Shish Ram containing PAN card, Rs. 600/, one paper on which name of complainant Ravi Mishra was written, one LG dark colour grey mobile and two motorcycle keys. Ex.PW2/C is the seizure memo of articles recovered from accused and produced by Ct. Kartar of one black coloured purse containing Rs. 80/, one PAN card, one metro card, other papers and 3 other mobile phones and 4 bundles of keys.
21. Ex.PW9/D and Ex.PW9/E is disclosure statement of accused Azim and Masroor recorded by IO Naresh Sangwan. Ex.PW2/G and Ex.PW2/H are State Vs. Masroor Ali etc., SC No. 247/12, pg-9 of 26) arrest memos of accused persons showing place of arrest Bhogal flyover at around 6.45 am. Ex.PW2/J is the personal search memo of accused Masroor. Ex.PW2/J is personal search memo of accused Azim. Ex.PW8/A is the MLC of injured Ravi Mishra showing alleged history of assault and incised wound over abdomen of dimension 1x.5x.5 cms inflicted at around 23.30 (11.30pm) on 09.10.2011 and patient brought to hospital by one Ct. Vijay on 10.10.2011 at around 2.49 am with endorsement that patient is fit for statement at 4.20 am on 10.10.2011 and nature of injuries opined to be simple with sharp weapon. Ex.PW9/G is the FSL report of recovered country made pistol and live cartridges. Ex.PX is the sanction u/s 39 Arms Act accorded by Addl. Deputy Commissioner of Police. Ex.PW7/A is the entries of deposit of seized articles in malkhana.
22. Ld. counsel for the accused submitted that PW2 and PW4 material witnesses have not identified the accused persons in court and neither supported the prosecution case on the recovery of katta and knife. Ld. counsel further submitted that as per their testimonies entire proceedings were conducted in PS and not at the spot. ld. counsel further submits that PW5 stated that entire proceedings conducted by IO in standing position with help of motorcycle at the spot, whereas PW9 (IO) stated that he conducted the entire proceedings and prepared papers on bonnet of the car. Ld. Counsel further submits that accused persons are stated to be apprehended by PW3 and PW5 however both had not produced any document of patrolling duty to show that they were present at the spot. Ld. Counsel submits that prosecution unable to prove its case against State Vs. Masroor Ali etc., SC No. 247/12, pg-10 of 26) accused persons hence, requested for their acquittal.
23. Ld. Addl. PP on the other hand submitted that PW2 and PW4 supported the prosecution case on the manner of committing of robbery and their apprehension at the spot. Ld. Addl. PP submits that mere turning hostile of these two witnesses on identity or recovery of weapons do not make the prosecution case unreliable. Ld. Addl. PP in this regard relied upon "Surender Singh Vs. State of Haryana, 2006(9) SCC 247" and also on case titled as "Jasmer Singh Vs. State of Haryana, 1988 Crl. LJ 683". Ld. Addl. PP further submitted that testimonies of PW3 and 5 Constables who apprehended accused on patrolling duty appears to be credible and unimpeached. Ld. Addl. PP submitted that mere deficiencies in investigation regarding non conducting of some proceedings at the spot do not hit at the root of the matter and no benefit of the same could be given to the accused persons. Ld. Addl. PP also submitted that accused are habitual criminals and prior to this case involved in number of FIR of snatching, firing and robbery. Ld. Addl. PP further submits that prosecution has proved its case against accused persons beyond reasonable doubt.
24. Arguments heard. Record perused.
25. According to prosecution when PW2 Ravi Mishra and PW4 Bir Singh after leaving their relatives at New Delhi Railway Station coming back to Katwaria Sarai to the house of maternal Uncle of PW4 Bir Singh and at around 12.45 am in the night when they reached Bhogal flyover, they saw accused persons coming from wrong side on motorcycle and thereafter, accused Azim inflicted State Vs. Masroor Ali etc., SC No. 247/12, pg-11 of 26) stab injuries to PW2 Ravi Mishra and robbed his purse and mobile phone and accused Masroor shown katta to Bir Singh and also robbed Rs. 120/ and motorcycle papers from him. Thereafter, ran away on motorcycle however, at the same time, PW3 Ct. Kartar and PW5 Ct. Shishram while on patrolling duty heard the shouts of the victims and apprehended the accused persons after a distance of 5060 yards on the spot and thereafter recovered the looted articles as well as knife and kattas from the accused persons and IO came at spot and recorded the statements of complainant Ravi Mishra then sent him to hospital for medical examination thereafter, on his returning back prepared rukka and sent the rukka for registration of FIR and on receiving FIR at spot conducted further investigtion, prepared site plan and recorded of statements of witnesses and arrested accused persons at around 6.45 am and then left the spot at around 9.30 am alongwith accused persons and looted property etc. at the PS.
26. PW2 and PW4 in their testimonies in court had not identified the accused persons and further PW2 and PW4 also not supported the prosecution case on the recovery of knife, katta and cartridges at the instance of accused persons at the spot. However, PW3 and PW5 supported the prosecution case over recoveries and apprehension of accused persons at the spot. Some Important Timings:
27. Time of Incident: 12.45 am: According to PW2 the incident occurred at around 12.45 am and he received knife injuries at the same time however, as per PW4 the incident is of around 12 am. But as per MLC the incident of knife injuries as stated by PW2 before doctor is 11.30 pm. State Vs. Masroor Ali etc., SC No. 247/12, pg-12 of 26)
28. Time of recording of statement of PW2 by IO (PW9) 1.30 to 1.45 am at spot: PW4 though in testimony stated that immediately after incident they came to PS. PW3 could not tell the time of recording of statement of Ravi Mishra at spot. PW5 stated that statement of Ravi Mishra was recorded at around 1.15 am. PW2 and PW4 not stated anything when their statement was recorded.
29. Time of PW2 coming back to spot from hospital as per PW9 (3.15 to 3.30am): PW9 IO stated that after medical examination of Ravi Mishra he came back to spot at around 3.15 to 3.30 am thereafter he prepared rukka and sent it for registration of FIR at around 3.45 am. Whereas as per MLC Ex. PW8/A PW2 remained in hospital from 2.49 am till 4.20 am and found fit for statement at around 4.20 am and this also shows his statement might be recorded after 4.20 am. PW2, PW4 and PW5 not stated that PW2 brought at spot after incident and PW3 stated that PW2 brought to spot after rukka was sent to PS by IO which is at variance to statement of PW9 (IO), who stated before sending of rukka.
30. Proceedings concluded at spot till 9.30 am: PW9 IO in his cross examination stated that he remained at the spot from 1.10 am to 9.30 am, however PW5 stated that they left the spot at around 6.30 am. PW2 and 4 stated that they came to PS immediately after the incident. PW3 could not state till what time they remained at the spot and given elusive answers on timings. Duty of Court:
31. It is bounden duty of the court while appreciating evidence in criminal trial to construct the case by evaluating the plausibility of happening of the events as narrated by the witnesses and has to visualize the entire incident from three State Vs. Masroor Ali etc., SC No. 247/12, pg-13 of 26) dimensional point of view to satisfy itself whether the incident occurred in the way as narrated by the prosecution witnesses leaving aside the minor and natural discrepancies which are inevitable due to lapse of time and peculiarity of the mental intelligibility of each person.
Description of incident by PW2 Ravi Mishra and PW4 Bir Singh as well as by PW3 Ct. Kartan and PW5 Ct. Shish Pal:
32. FIR in the present case registered on the statement (Ex. PW2/A) of Ravi Mishra. According to this statement PW2 and PW4 after leaving their relatives at New Delhi Railway station at 11.40 pm have started moving to the house of maternal uncle of PW4 Bir Singh who lives in Katwaria Sarai however, on the way, they forgotten the way of Katwaria Sarai and on inquiries they reached Bhogal flyover at around 12.45 am.
33. Thus, according to statement of PW2 Ravi Mishra given to police they have forgotten the way of the maternal Uncle of PW4 Bir Singh and they inquired at number of places of way to Katwaria Sarai and reached Bhogal flyover at around 12.45 am in the night. PW2 Ravi Mishra and PW4 Bir Singh both in their testimonies in court also stated the same fact that after leaving railway station they forgotten the way of Maternal uncle who lives at Katwaria Sarai. One thing is to be noticeable here that both these witnesses categorically stated that they forgotten the way to Katwaria Sarai and somehow after inquiry reached Bhogal flyover however, as per record (including statement U/s 161 Cr.P.C and testimony in court) PW4 Bir Singh himself resides at Katwari Sarai and PW2 Ravi Mishra resides at Laxmi Bai Nagar. It appears somewhat State Vs. Masroor Ali etc., SC No. 247/12, pg-14 of 26) improbable when both these witnesses reside in South Delhi and witness PW4 Bir Singh himself resides in 'Katwaria Sarai' then how it is possible that they forgot the way to their own locality i.e, 'Katwaria Sarai'.
34. This creates some sort of doubt over the genesis of incident as their presence at the place of incident shown to be due to the fact they forgotten the way of 'Katwaria Sarai'.
35. PW2 Ravi Mishra in his statement before the court stated that he had seen the motorcycle no. 0566, red colour pulsor coming from the wrong side. It is not plausible for a person to note the number and colour in the night when coming from opposite side . This itself shows that this witness is tutored before got examined in the court and deposed after going through his statement.
36. PW2 Ravi Mishra in his statement before police as well as in testimony stated that they reached Bhogal flyover at around 12.45 am and as per the statement before the police PW2 Ravi Mishra stated that he saw one motorcycle coming from the Ashram side from wrong side and the said motorcycle had crossed them and then came back and at that time he was urinating and Bir Singh also standing nearby him with motorcycle. Thereafter, Masroor asked him the address of Ashram and accused Azim had opened the knife and slapped him thereafter, inflicted knife injury on his stomach and took out his purse and when Bir Singh interfered, accused Masroor put katta on his head and thereafter taken out Rs. 120/ from his back pant pocket and also taken out the papers of his motorcycle. And when two police persons appeared at some distance then both ran away from that place and on their shouting police persons apprehended State Vs. Masroor Ali etc., SC No. 247/12, pg-15 of 26) them after about 50 mtrs.
37. According to this statement, accused persons alleged to be coming from wrong side and crossed them and thereafter turned back and asked the way to Ashram. However, in his testimony PW2 Ravi Mishra stated that they noticed two boys coming from Ashram side and then PW2asked them the way to Katwaria Sarai and thereafter, they came back and stopped their motorcycle. In his testimony Ravi Mishra had not stated that accused persons asked from them way to Ashram. However, on the other hand stated that they asked the way of Katwaria Sarai from accused persons and at that time he was urinating. PW4 on the other hand stated that at around 12 midnight (not 12.45 as mentioned in FIR and in statement of PW2) he saw one motorcycle coming from wrong direction and not stated anything whether they asked the way of Katwaria Sarai from accused persons or accused persons asked the way to Ashram from them. PW4 also denied that at that time PW2 was urinating.
38. PW2 and PW4 both stated that after committing the incident accused persons ran from the spot on motorcycle and they saw two police persons coming from their back side and chased the accused persons and apprehended them on hearing their shouts. Both these witnesses had not stated anywhere whether they saw the police persons on motorcycle. PW2 in his statement stated that after sometime of apprehension by police persons who apprehended the accused persons, they also reached. PW4 also stated that accused persons were apprehended but he could not tell what articles were recovered from the accused persons. But in cross examination by Addl. PP he also stated that police State Vs. Masroor Ali etc., SC No. 247/12, pg-16 of 26) persons apprehended those boys but they had not seen those boys with the police persons. However, both these witnesses neither identified the accused persons in the court nor supported the factum of recovery of knife and katta from them. PW2 on cross examination by Addl. PP categorically denied of using of katta and cartridges while committing robbery and further not identified the knife and katta. PW4 even had not stated that one of the accused shown him the katta only stated in his testimony that some weapon type thing was shown. And also denied recovery of looted articles and recovery of katta and knife.
39. But PW3 Ct. Kartar and PW5 Ct. Shish Pal stated that they both were on patrolling duty and at around 12.50am when they were at Bhogal flyover they noticed two boys crying and pointed towards a motorcycle going towards Ashram side and thereafter they chased and apprehended the accused persons and these both police officials have identified the accused persons in court and also supported the prosecution case on recovery of looted property and also knife and katta from accused persons. According to PW3 and 5 they chased the accused at around 12.50 am while on patrolling duty however, none of them could tell the DD no of departure from PS of patrolling neither any daily diary register was produced before the court showing their departure or patrolling from the PS. Though there is an unexhibited document written on plain paper showing some police officials duty of patrolling but that document also not showing that these both constables were patrolling on motorcycle, however that paper can't be used in evidence as not exhibited, as no opportunity provided to State Vs. Masroor Ali etc., SC No. 247/12, pg-17 of 26) defence to cross examine on this document. Further, there is no mention of particulars of motorcycle on which PW3 and PW5 were allegedly patrolling in that unexhibited document.
40. According to statement (Ex.PW2/A) of PW2 before police, the accused persons also received injuries when they were apprehended but this fact is not deposed by any of the witnesses in the court neither both these accused were sent for medical examination after the incident. Nor any medical examination of accused placed on record. In case they got fallen when chased by police official, their motorcycle might also received some damage, but no mechanical inspection of the motorcycle was conducted.
Recovery of looted property:
41. As per statement of PW2 Ravi Mishra (Ex.PW2/A) before the police, accused Azim robbed his purse from back pocket and also robbed Rs.120/ from the back pocket of PW4 Bir Singh. PW2 in his deposition also stated that they snatched purse from back pocket and also took away Rs.120/ from back pocket of wearing pant of Bir Singh and also motorcycle documents from his front pant pocket, further stated that his purse was containing PAN card, Rs. 300400 and also snatched mobile and keys of motorcycle. PW4 Bir Singh however only deposed that Rs. 100 were robbed from his pocket.
42. The looted articles which as per prosecution were immediately recovered were seized vide seizure memo Ex. PW2/F and Ex. PW2/C. As per seizure memo (Ex.PW2/F) one black purse which containing PAN card, Rs. 600/ one more paper recovered and also one LG mobile phone was recovered. Another seizure State Vs. Masroor Ali etc., SC No. 247/12, pg-18 of 26) memo Ex.PW2/C showing that there is one another purse recovered containing Rs. 80/, one PAN card of Dimple Kumar and SBI ATM card of Dimple Kumar and four other mobile phones. PW2 though had not stated that there were two purses looted from him however, in cross examination by Addl. PP stated that it is correct that IO seized his purse containing Rs. 80/ and PAN card of Dimple Kumar etc. alongwith other mobile phone and also admitted another seizure memo ex. PW2/F which contained his PAN card and Rs. 600/etc. Therefore, there is an inconsistency in the statement of this witness about what property is robbed from him and what property is recovered from the accused persons and claimed his right over the property of other property recovered from accused persons. It is also specifically stated by PW2 that Rs. 120/ were robbed from the back pocket of PW4 however, no Rs. 120/ shown to be recovered from accused Masroor. Neither, motorcycle documents alleged to be looted from PW4 Bir Singh were shown recovered at spot. These inconsistencies itself create some sort of doubt whether the accused persons were arrested immediate after the incident and also create suspicion over the manner of committing of offence as projected by the prosecution.
Site Plan:
43. According to all the witnesses the accused persons looted PW2 and PW4 over the Bhogal flyover however, as per site plan Ex. PW9/C, the point of incident is shown before climbing over the Bhogal flyover, further site plan do not show the place of apprehension of the accused persons by PW3 and PW5. Whether entire proceedings were conducted at spot or not:
State Vs. Masroor Ali etc., SC No. 247/12, pg-19 of 26)
44. According to prosecution on receiving DD no. 24A, SI Naresh Sangwan reached the spot at around 1.10 am and IO/SI Naresh Sangwan (PW9) in his deposition stated that he recorded the statement of Ravi Mishra at between 1.30 to 1.45 am and thereafter sent him for medical examination at AIIMS who came back at spot around 3.15 to 3.30 am and thereafter he prepared rukka and sent it for registration of FIR at around 3.45 am and received the FIR back at the spot at around 5.15 am thereafter, recorded the statement of witnesses, prepared site plan and left the place of occurrence at around 9.30 am in the morning. Therefore, as per deposition of PW9 IO/SI Naresh Sangwan he remained at the spot from 1.10 am to 9.30 am and conducted the entire proceedings at the spot.
45. This witness PW9 stated that he recorded the statement of PW2 at spot at around 1.30 am thereafter sent him for medical examination who came back at around 3.15 to 3.30 am however, as per MLC Ex. PW8/A injured PW2 Ravi Mishra reached AIIMS trauma center at around 2.49 am as brought by Ct. Vijay and there is an endorsement in the MLC which shows that he was found fit for statement at around 4.20 am it means that injured remained atleast in AIIMS hospital from 2.49 am to 4.20 am and also indicates that his statement might be recorded after 4.20am which casts suspicion on testimony of PW9 SI Naresh Sangwan who stated that statement of PW2 was recorded at spot at 1.30 am and he again came back to spot at around 3.30 am. This in effect created doubt over the manner of recording of statement and preparation of rukka and also the entire seizure proceedings conducted at the spot.
46. PW2 in cross examination stated that in PS he has signed on some blank papers State Vs. Masroor Ali etc., SC No. 247/12, pg-20 of 26) and some filled up papers. PW4 Bir Singh in cross examination stated that after incident they were taken to PS where police has taken his signatures on some blank and some filled up papers and he had not read those papers. The testimony of these two witnesses also shows that entire proceedings was conducted at PS and not at the spot. PW5 Ct. Shish Ram in cross examination could not state what documents IO prepared before preparation of rukka and also could not state what documents IO prepared after coming at the spot and also could not state at what time they left the spot after 5.15 am. PW3 Ct. Kartar Singh in cross examination could not state in what sequence documents were prepared however stated that they remained at the spot till 6/6.30am which is inconsistent to testimony of PW9 IO who stated that they remained at the spot till 9.30 am. However, PW3 Ct. Kartar Singh even could not state at what time statement of PW2 Ravi Mishra was recorded. PW5 Ct. Shish Ram stated that statement of complainant and proceedings were completed by IO in standing position taking the help of motorcycle however PW9 IO Naresh Sangwan stated that he came to spot in his private car and conducted entire proceedings with help of bonnett of that car. Therefore, in entirety, prosecution unable to show that the entire proceedings were conducted at the spot and it appears that entire proceedings were conducted at PS which not only effect the credibility of the official police witnesses over the just on conducting of proceedings, but on the other aspects also and their testimonies cannot be relied upon without deep scrutiny and corroboration.
47. The testimony of PW3 Ct. Kartar and PW5 Shish Ram as discussed found State Vs. Masroor Ali etc., SC No. 247/12, pg-21 of 26) suspect on the factum of proceedings conducted at the spot and they also could not produce any document showing they were patrolling at that time of incident at Bhogal flyover, this made their testimony suspect over factum of apprehension of the accused persons in the manner suggested by them. Timing of the Incident:
48. As per deposition of PW2, the said incident occurred at around 12.45 am. According to PW3 and PW5 the said incident occurred around 12.50 am when they were on patrolling. According to PW4 Bir Singh the said incident was of around 12 am. It is the case of the prosecution that during the said incident PW2 Ravi Mishra received the knife injuries on his abdomen, it means the knife injury was inflicted at around 12.45 am however as per MLC which is prepared after the incident of assault, time of infliction of knife injury is shown as 11.30pm. There is more than one hour fifteen minutes gap over the infliction of knife injury on PW2 though the time variation appears to be not very huge, however when medical examination conducted after about two hours then this time variation becomes material and alongwith other discrepancies creates definite doubt over the place of incident as well as the manner of occurrence of incident.
Use of Knife :
49. According to PW2 he received knife injury during the incident and as per MLC the injury was found to be simple inflicted by some sharp object and according to prosecution said knife was recovered immediately. However, as per seizure memos or the statement of any of the witnesses, no blood found on the knife State Vs. Masroor Ali etc., SC No. 247/12, pg-22 of 26) neither any blood marks were found on paper when sketch of said knife was prepared. Further, if the injuries were caused by knife then there must be some cut mark on the clothes of PW2 but those clothes were not seized by the police.
It is inevitable that blood stains would have also came on clothes. Neither the blood stained clothes were seized by police. This all creates doubt over the use and recovery of knife as alleged by the prosecution.
Use of Katta:
50. PW2 in examination in chief though stated the use of katta by accused Masroor however, on being declared hostile by Addl. PP he completely denied the use of katta in the said incident and also denied the recovery of katta and knife in said incident. PW4 Bir Singh also could not state that even the word katta in his examination in chief, also not supported the prosecution case over the recovery of katta or knife. The proceedings as already discussed do not appear to be conducted at spot. Further, filmy entry of PW3 and PW5 at spot just after completion of incident and apprehension of accused at spot do found support of material DD entries. Further other circumstances as discussed before, regarding timing of infliction of injury, manner of incident committed also created doubt over their appearance at spot in the manner suggested by prosecution. Thus, the circumstance of use of katta and knife in the said incident in the manner suggested also appears to be doubtful.
51. Ld. Addl. PP vehemently submitted that PW2 and PW4 had supported the prosecution case on occurrence of incident and immediate apprehension of accused at the spot, therefore their turning hostile of point of identity of accused State Vs. Masroor Ali etc., SC No. 247/12, pg-23 of 26) and recovery of knife and katta and some looted articles do not in any way make the prosecution unbelievable. Ld. Addl. PP relied upon the judgment of Hon'ble Supreme Court in case tilted as : "Surender Singh Vs. State of Haryana, 2006(9) SCC 247" and also on case titled as "Jasmer Singh Vs. State of Haryana, 1988 Crl. LJ 683" passed by Punjab & Haryana Court for the proposition that immediate recovery of the looted articles and weapons raises presumption of robbery against the accused u/s114A Evidence Act and that presumption is not rebutted by the accused persons. There is no dispute with the proposition as relied by Addl. PP however, before making use of this preposition, prosecution must prove the incident as projected. The evidence of PW2 and PW4 appears to be suspect on the version of their presence at spot due to reason of their forgotten the way to Katwaria Sarai. Their manner of depicting the incident also discrepant. The unhostile portion of their testimony created doubt over manner and time of incident which ultimately affected the prosecution story of sudden appearance of PW3 and PW5 as already discussed.
Therefore, the above cases as relied by Addl. PP is of no help to case of prosecution in present set of facts and circumstances.
52. Ld. Addl. PP also vehemently stated that accused persons are habitual criminals and as per their disclosure statement they are involved in snatching, robbery and firing incidents. Ld.Addl. PP further submits that number of FIR's are pending against them. The criminal background of the accused is not the criteria to be looked while evaluating the particular facts and circumstances however, if the prosecution reasonably able to prove the facts then the criminal State Vs. Masroor Ali etc., SC No. 247/12, pg-24 of 26) background of the accused persons will reinforce the said finding. Mere criminal background without proving of the case by prosecution beyond reasonable doubt is in no way could help the prosecution case.
53. Ld. Addl. PP also submitted that PW2 and PW4 are independent persons and they narrated the entire incident of robbery and receiving injuries and also immediate apprehension of accused persons at the spot and in these circumstances even if the prosecution case is defective on various other aspects, then the benefit of the same cannot be given to the accused persons.
54. No doubt it is the well settled principle that even if investigation is illegal or suspicious the rest of evidence must be scrutinized independent of its impact and if court is convinced about the truthfulness of the testimony of a witness, then the court can rely upon that testimony irrespective of the suspicious investigation. However, in present case as already discussed, the timing of receiving of injury, the place of occurrence as narrated by PW2 and their presence at that spot due to fact that they forgot the way to Katwaria Sarai, all appears suspect. Further they had not supported the prosecution case on the identity and recoveries from the accused persons. Even the prosecution has not produced the credible evidence regarding the presence of these two police officials at the time of incident as no patrolling duty register was placed on record then, as already discussed in detail, even other circumstances including the proceedings conducted at the spot are not reliable. Therefore, this proposition also do not in any way help to prosecution in facts and circumstances of present case.
State Vs. Masroor Ali etc., SC No. 247/12, pg-25 of 26)
55. Thus on overall appreciation of the prosecution evidence, the prosecution case is suspect over the manner of presence of the complainants at the spot at the time of incident, their receiving of injuries and robbery of articles in the manner suggested, the sudden appearance of police officials in apprehending the accused in the manner relied by prosecution also appears to be doubtful. Further, other circumstances like conducting of proceedings at the spot etc. is not at all reliable, thus, prosecution unable to prove its case against accused persons beyond reasonable doubt.
56. Burden of proof to prove guilt of accused is on prosecution and prosecution is obliged to prove its case beyond reasonable doubt, however prosecution unable to prove its case beyond reasonable doubt therefore, accused persons are entitled for benefit of doubt, hence acquitted of all charges framed against them. Accused Masroor and Azim are directed to furnish personal bond and surety bond in sum of Rs. 25000/ in terms of section 437A Cr.P.C to the satisfaction of this court.
Announced in Open Court
On 18th August, 2012 (Ajay Kumar Jain)
ASJ03: SE: NEW DELHI
State Vs. Masroor Ali etc., SC No. 247/12, pg-26 of 26)
State Vs. Masroor Ali etc., SC No. 247/12, pg-27 of 26)