Delhi District Court
State vs Afzal Hussain & Anr. on 21 May, 2015
1
IN THE COURT OF MR. PRITAM SINGH, ADDL. CHIEF
METROPOLITAN MAGISTRATE/ SOUTH EAST DISTRICT/
SAKET COURT COMPLEX, NEW DELHI.
Case no. RBT786/1 dated 17.09.2013
Unique Identification No. 02406R0262442013
FIR No. 102/13
PS - New Friends Colony
State Vs Afzal Hussain & Anr.
JUDGEMENT
S. No. of Case : RBT786/1 dated 17.09.2013
Date of Commission : 21.04.2013
of offence
Name of Complainant : Mohd. Mukhtyar
Name and address : 1. Afzal Hussain
of accused S/o Sh.Nafis Ahmad,
R/o C129/9A, Jamia Nagar,
Okhla, New Delhi.
2. Rizwan
S/o Sh.Jafar Ahmad,
R/o 91, Gali No.15, Noor Nagar,
Jamia Nagar, Okhla, New Delhi.
Offence Complained : U/s. 392/34 IPC
Plea of accused : Not guilty
FIR No.102/13, P.S. NFC State Vs Afzal Hussain & Anr. 1 of 8
2
Arguments heard : 21.05.2015
Date of judgment : 21.05.2015
Final order : Acquitted.
1. In brief, the case of the prosecution is that on 21.4.2013 at about 12.30 p.m. at Don Bosco School, Sukhdev Vihar, Okhla Road, Opp. Escorts Hospital, New Delhi both accused persons in furtherance of their common intention with each other committed robbery of Rs.3,50,000/ by showing a Katta to the complainant and putting him in fear of instant death and hurt by wrongfully restraining him and induced the complainant to deliver them the said amount.
2. Chargesheet was filed in the court against accused for offences u/s 392/397/34 and complete set of documents were supplied to the accused. As offence u/s 397 IPC was triable by court of session, the matter was committed to the Sessions Court. Thereafter, Ms. Ina Malhotra, Learned District & Sessions Judge, SouthEast, Saket vide its order dated 17.02.2014 held that charge u/s 392 IPC alone is sustainable against the accused and the matter was remanded back to the court of undersigned. Accordingly, charge for offence u/s 392/34 IPC was framed against accused Afzal Hussain vide order dated FIR No.102/13, P.S. NFC State Vs Afzal Hussain & Anr. 2 of 8 3 05.05.2014 and against accused Rizwan vide order dated 21.06.2014 and both accused persons pleaded not guilty and claimed trial.
3. In order to prove charge against the accused persons, prosecution has examined 11 witnesses. Mohd. Mukhtiyar, who is the complainant, was examined as PW1, Mohd. Akram, who was an eye witness as per the prosecution story, was examined as PW2, Sh.Om Prakash Pathak, who was also an eye witness as per the prosecution story, was examined as PW3, HC Anil Kumar, who joined the investigation with IO/SI Ichha Ram, was examined as PW4, HC Het Ram, was who the Duty Officer, was examined as PW5, Ct. Anil Kumar, who is a witness of arrest and disclosure of the accused Afzal in FIR No.127/13, P.S. Sarita Vihar, was examined as PW6, HC Ram Kishore, who joined the investigation in this case with IO/SI Ichha Ram, was examined as PW7, SI Kamal Singh, who was the first IO, was examined as PW8, HC Sher Mohd., who also joined investigation in the present case, was examined as PW9, Ct. Mahender Singh, who took the rukka to police station and got registration of the FIR, was examined as PW10 and SI Ichha Ram, who is the IO was examined as PW11. During prosecution evidence, the following documents were exhibited: FIR No.102/13, P.S. NFC State Vs Afzal Hussain & Anr. 3 of 8 4
(i) Complaint Ex.PW1/A
(ii) Statement u/s 161 Cr.P.C. of Mohd. Akram Ex.PW2/A
(iii) Copy of the FIR Ex.PW5/A
(iv) Endorsement on the Rukka Ex.PW5/B
(v) Disclosure statement of accused Ex.PW7/A
(vi) Arrest memo of accused Afzal Ex.PW7/B
(vii) Pointing out memo Ex.PW7/C
(viii) Attestation of IO on the complaint Ex.PW8/A
(ix) Rukka Ex.PW8/B
(x) Site plan Ex.PW11/A
4. The statements of both accused persons u/s 313 read with section 281 Cr.P.C. were recorded on 18.04.2015 wherein they denied the deposition of witnesses against them being false and interested witnesses. Accused did not lead any defence evidence.
5. Final arguments heard. Record perused and considered carefully.
6. PW1 Mohd. Mukhtyar, complainant deposed that on 21.4.2013, he was going on his bike no. DL9SAB0001 towards his factory at Tughlakabad from his house. At that time, he was having a plastic bag containing a cheque book of Standard Chartered Bank, his PAN card, Rs.3.5 lacs cash. PW1 further deposed that on the way at about 12.30 p.m. when he reached near Don Bosco School, Sukhdev FIR No.102/13, P.S. NFC State Vs Afzal Hussain & Anr. 4 of 8 5 Vihar, Okhla Road in front of Escorts Hospital, two persons on a black colour pulsor motor cycle came besides his motor cycle who were following him from Batla House chowk and one of them had hit his motor cycle by his leg and made him fell down. PW1 further deposed that driver of the bike had kept the bike on the stand and thereafter he shown him a katta and threatened to kiit if he (complainant) raised noise and thereafter he snatched his polythene bag. Thereafter both boys fled away on their pulsor bike towards the side of Nehru place. PW1 further deposed that he followed them till Kalka Ji Mandir but they managed to fled away. He rang up on 100 number. Police came on the spot. PW1 further deposed that his statement Ex.PW1/A was recorded on the spot bearing his signature at point 'A'. PW1 further deposed that he had told the description of the boys to the police. PW1 further deposed that one day in the month of July, 2013, he had visited police station, where accused Afzal was sitting and he called the police that accused Afzal might be one amongst the boys who had robbed him. PW1 further deposed that he had seen the boys who robbed him for one and half second, therefore, he was not confirmed. PW1 was crossexamined by Ld. APP for State as he resiled from his earlier statement. PW1 deposed when crossexamined by Ld. APP for FIR No.102/13, P.S. NFC State Vs Afzal Hussain & Anr. 5 of 8 6 complainant that the portion from 'A' to 'A1' in statement MarkA not stated by him to the police. PW1 also failed to identify accused Rizwan by deposing that he could not tell whether accused Rizwan was among the boys who had snatched his money. PW2 Mohd. Akram, who is also eye witness as per the prosecution story, deposed that on the day at about 10.30 to 11.00 a.m., he was repairing puncture of a cycle and during that time, a bike fell at some distance behind him. He saw there was a gathering and police came at the spot. PW2 further deposed that except it, he had not seen anything. PW2 was cross examined by Ld. APP for State as he resiled from his earlier statement, but nothing material came in his crossexamination. PW3 Sh.Om Prakash, who is also an eye witness as per the prosecution story deposed that on 21.12.2013 at about 12.30 p.m., he heard noise "CHORCHOR, PAKDO PAKDO." He saw a person was shouting that his money was snatched by the bikers. The two persons had fled from there. PW3 further deposed that he could not see the faces of the boys who had snatched the money.
7. PW1, PW2 and PW3 are material witnesses, in whose presence the alleged incident of robbery was committed, however, none of them could identify the accused persons in their evidence. FIR No.102/13, P.S. NFC State Vs Afzal Hussain & Anr. 6 of 8 7 PW2 completely turned hostile. PW1 and PW3 had deposed regarding the commission of alleged incident, but they could not identify the accused persons. All other witnesses are police witnesses in whose presence the incident had not taken place. It is also important to mention here that the accused persons were arrested in another case, in which they made their disclosure statements disclosing their involvement in the present case. However, nothing was recovered at the instance of accused persons. It is well settled law that disclosure statement of an accused is inadmissible in evidence unless something is recovered at his instance and only that portion can be admissible.
8. In view of the above discussions, I am of the considered view that the prosecution has failed to prove the charge against the accused beyond reasonable doubts. It is well settled law that benefit of doubt always goes in favour of the accused. Accordingly, both accused persons namely Afzal Hussain and Rizwan are acquitted from the charge of offence u/s 392/34 IPC.
9. Ld. legal aid counsel submits that as accused are in JC, therefore, they are not in a position to furnish their surety bond, so, they may kindly be released on personal bond in compliance of section 437A Cr.P.C. Heard. Considering the submissions and as accused are FIR No.102/13, P.S. NFC State Vs Afzal Hussain & Anr. 7 of 8 8 in JC and not in a position to produce surety, therefore, they are released on furnishing personal bond in compliance of section 437A of Cr.P.C. Personal bonds filed and accepted in compliance of section 437A of Cr.P.C.
Announced in Open Court (PRITAM SINGH )
Dated: 21.05.2015 Addl. Chief Metropolitan Magistrate
South East District/Saket Court
New Delhi/21.05.2015
FIR No.102/13, P.S. NFC State Vs Afzal Hussain & Anr. 8 of 8