Delhi District Court
State vs . Javed on 28 April, 2012
State Vs. Javed
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 92/2011
State Vs. : Javed
S/o Sh Raisuddin,
R/o 70, Nala, Basti Nizamuddin,
New Delhi
FIR No. 504/2009
P.S. Hazrat Nizamuddin
U/s 394/397/411/34 IPC
Date of Institution : 25/03/2010
Date when arguments
were heard : 23/04/2012
Date of Judgment : 28/04/2012
JUDGMENT
BRIEF FACTS:
Factual matrix of the prosecution case is as follows:
On 26/12/2009 information was received at 9.10 pm that SC No. 92/2011 1/22 State Vs. Javed at drain Nizamuddin opposite RB House 108, money of a boy has been snatched and his mouth has been injured. Said information was recorded in DD No. 18A. SI (now inspector) Pramod Gupta (PW9) with HC Yogender on receipt of copy of DD No. 18A reached the aforesaid place of occurrence, came to know that injured had already been removed to hospital by PCR van. Said police officials as well as senior police officials who arrived at the scene of crime could not get any clue at the spot. On the directions of the SHO, SI (now inspector) Pramod Gupta (PW9) with HC Yogender reached at JPN Apex Trauma Centre AIIMS. MLC of an unknown male age 25 years was obtained. Doctor declared the patient unfit for statement. No eye witness was found in the hospital. SI (now inspector) Pramod Gupta (PW9) with HC Yogender came back to the spot, scribed tehrir, got case FIR No. 504/09 registered for offences under Sections 324 IPC and 27 Arms Act by sending tehrir through HC Yogender. In the course of investigation SI (now inspector) Pramod Gupta (PW9) recorded statement of Guddu Ansari (PW4) (herein referred as complainant/injured).
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2. In his statement complainant/injured stated to investigating officer that at 8.45 pm when he was returning to his home near Nizamuddin drain/kabristan suddenly two boys came out of the bushes, held his collar, took him to side. Amongst those two boys, one was of height five feet and eight inches and the other had height of five feet six inches, they threatened him, asking him to give the money and mobile. Upon refusal of complainant to give said articles, tall boy apprehended the complainant and short height boy started beating the complainant. Complainant tried to raise noise upon which short height boy held a blade type sharp edged article in his hand and assaulted on the face of the complainant. Blood started coming out from the face of complainant/injured. Tall boy thereafter removed mobile phone from the pocket of complainant. Short height boy took out purse from the pocket of complainant/injured. In said purse complainant had Rs 9,000/ and some necessary papers and I card. Thereafter two offenders ran away and injured was taken in PCR van to hospital. Also it was stated by the injured that his mobile phone of TATA INDICOM make Haier was having sim no. 9213977579.
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3. Sections 397/394/34 IPC were added. Accused and case property were searched. On receipt of secret information raid was conducted near drain Nizamuddin. Accused Javed and Salman (later declared Juvnile) were apprehended. From Salman (later declared Juvnile) the robbed mobile phone was recovered. From accused Javed robbed purse was recovered. Accused were arrested and produced in the court. Later on steps were taken for Test Identification Parade of the accused persons. Accused refused to join Test Identification Parade proceeding. Recovered case property was identified by complainant/injured in the organized Test Identification Parade. Injuries of injured was opined as simple in nature caused by blunt object in the MLC and the MLC was obtained by the IO. Salman claimed and was later declared Juvenile. Chargesheet for offences under Sections 397/394/411/34 IPC was filed.
4. After the completion of the requirements under Section 207 Cr.P.C., case was committed to the court of Sessions. SC No. 92/2011 4/22
State Vs. Javed CHARGE
5. Charge for offences under Sections 394/34 IPC; 397 IPC and 411 IPC was framed against accused Javed by my Ld. Predecessor on 22/05/2010 to which he pleaded not guilty and claimed trial.
WITNESSES
6. To connect the accused with the offences charged, prosecution has examined in all 11 witnesses namely Dr. Susheel Sharma (PW1); HC Vijay Singh (PW2); HC Madan Lal (PW3); Sh Guddu Ansari (PW4); SI Sukhram (PW5); Ct Anis Ahmed (PW6); ASI Mohd Ilyas (PW7); SI Ramesh Chand (PW8); Inspector Pramod Gupta (PW9); Sh Aditya Swaroop (PW10) and Dr Sameer Vankar (PW11).
STATEMENT OF ACCUSED
7. Thereafter accused was examined under Section 313 Cr.P.C. All incriminating material in evidence was put to the accused. Accused stated that this is false and fabricated case and police tried to SC No. 92/2011 5/22 State Vs. Javed solve their case blindly by falsely implicating him in this case. Accused also stated that he was not knowing about this case and police arrested him just nearby from his house. Accused denied to lead defence evidence.
ARGUMENTS
8. I have heard the arguments of Ld. Addl. PP for the State, the defence counsel and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
9. Ld. Addl. PP for the State argued that the victim/injured Guddu Ansari (PW4) has deposed of the incident in chronological order and has identified the accused to be the offender in the course of evidence and has prayed for conviction of the accused.
10. Ld. Counsel for accused argued that the testimony of sole eye witness victim/injured Guddu Ansari as well as of investigating officer and other police officials embody material contradictions, severe infirmities, inherent improbabilities and SC No. 92/2011 6/22 State Vs. Javed inconsistencies which shake the basic version of the prosecution case making version of the prosecution witnesses unreliable and untrustworthy. Ld. Defence Counsel has vehemently contended for acquittal of the accused as prosecution has not been able to prove its case against the accused beyond reasonable doubt. FORMAL WITNESSES:
11. Dr Susheel Sharma (PW1) had opined about the ossification test of Salman (declared juvenile).
12. HC Vijay Singh (PW2) is the duty officer and has proved his recorded FIR No. 504/09, under Sections 324 IPC and 27 Arms Act as Ex PW2/A. HC Vijay Singh (PW2) had also made endorsement Ex PW2/B on the ruqqa.
13. HC Madan Lal (PW3) on PCR vehicle had received call at about 9 pm on 26/12/09, he reached near drain Nizamuddin, took Guddu Ansari (PW4), injured to Trauma Center, AIIMS and admitted him there.
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14. SI Sukhram (PW5) simply prepared the chargesheet and submitted the same to the court. SI Sukhram (PW5) has also filed chargesheet against juvenile Salman before Juvenile Justice Board.
15. SI Ramesh Chand (PW8) had got the bony Xray of Salman (later declared juvenile) conducted.
MEDICAL EVIDENCE:
16. Aditya Swaroop (PW10), Medical Record Technician, AIIMS identified the writing and signature of Dr Thomas on MLC Ex PW10/A of an unknown patient of age 25 years. Aditya Swaroop (PW10) stated that Dr Thomas left the services of AIIMS on 31/12/09, his present whereabouts were not known.
17. Dr. Sameer Vankar (PW11) after seeing the MLC Ex PW10/A deposed that the injuries mentioned therein were incised wound with cut on the face near lip right side+artery bleed left side of lip; three dimensions 3 cm, 2 cm and 1.5 cm demonstrated the length SC No. 92/2011 8/22 State Vs. Javed of the three incised wounds. As per opinion of Dr. Sameer Vankar (PW11), said injuries were simple in nature caused by sharp object. Dr. Sameer Vankar (PW11) testified that he could not say how the doctor who examined injured patient had given opinion that injuries were caused by blunt object but in his (PW11) opinion such injuries cannot be caused by blunt object, can only be caused by sharp object.
18. Prosecution case primarily hinges on the ocular version contained in the testimony of Guddu Ansari (PW4), the complainant/injured/victim; the material evidence in the testimonies of Ct Anis Ahmed (PW6); ASI Mohd Illyas (PW7) and Inspector Pramod Gupta (PW9), the investigating officer.
19. Of course, in the absence of testimony of any independent witness, sole testimony incorporating ocular version of the injured cannot be discarded. Injured witness is expected to tell truth against perpetrator of crime upon him and not to falsely implicate an innocent. Testimony of sole material/injured witness is to be scrutinized with utmost care, caution and circumspection to base SC No. 92/2011 9/22 State Vs. Javed conviction of accused on it in the absence of corroboration in material particulars from the testimony of any independent witness.
20. Careful scrutiny of testimony of Guddu Ansari (PW4) reveals of the same being embedded with several material contradictions, severe infirmities and inherent improbabilities going to the root of the matter to check the basic version and core of the prosecution case.
21. Per contra to his version contained in statement under Section 161 Cr.P.C, Guddu Ansari (PW4) testified that on the fateful night and time when the two boys suddenly came out from nearby bushes at the place of occurrence, they caught hold of his collar and while threatening him, asked him to take out whatever he had; one of those boys caught hold of the hands of Guddu Ansari (PW4) by putting them at his back and another boy took out purse, Ex P2 of Guddu Ansari (PW4) from the pocket of his worn pants and TATA Indicom mobile phone from front pocket of his shirt. Guddu Ansari (PW4) further testified that after said articles were robbed from him SC No. 92/2011 10/22 State Vs. Javed in the manner aforesaid, the taller boy caught hold of him and the boy of short height that is the accused Javed assaulted him on his face on both cheeks by hand with blade type instrument. The sequence of occurrence narrated in statement under Section 161 Cr.P.C, by Guddu Ansari (PW4) had been that after two boys came out of bushes, they held his collar and took him to side; those boys threatened Guddu Ansari (PW4) and asked him to give money and mobile to them upon which Guddu Ansari (PW4) refused to give those articles and then the tall boy apprehended Guddu Ansari (PW4), boy of short height started beating Guddu Ansari (PW4); Guddu Ansari (PW4) tried to raise noise upon which the boy of short height gave blow of blade type sharp instrument on the face of Guddu Ansari (PW4) and blood started coming out from the face of Guddu Ansari (PW4); thereafter tall boy took out mobile phone from the pocket of Guddu Ansari (PW4) and the boy of short height took out purse from the pocket of Guddu Ansari (PW4). Entire sequence of occurrence narrated in statement under Section 161 Cr.P.C of Guddu Ansari (PW4) reflects that first Guddu Ansari (PW4) was apprehended, assaulted and later thereto robbed of aforesaid articles. Guddu Ansari SC No. 92/2011 11/22 State Vs. Javed (PW4) testified the sequence of occurrence contrary to his version in statement under Section 161 Cr.P.C. PW4 deposed that first he was robbed of his purse containing cash of Rs 9,000/, Metro ICard, papers regarding purchase of mobile phone, passport size photograph of his daughter and it was later thereto that boy of short height had assaulted him with blade type instrument on both of his cheeks. Guddu Ansari (PW4) had further improved upon his version by deposing that he had tried to chase the accused persons when they were fleeing from the spot but in the meantime, he collapsed and fell down and when he regained consciousness, he found himself in the Trauma Centre in AIIMS. The fact of loss of consciousness by Guddu Ansari (PW4) as deposed by him does not find corroboration from the testimony of HC Madan Lal (PW3) who took him in PCR vehicle from the place of occurrence to Trauma Centre, AIIMS and got him admitted there. Even MLC Ex PW10/A finds mention of no history of loss of consciousness but finds mention instead of alleged history of assault on 26/12/2009 with details of injuries, elicited herein above.
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22. Investigating Officer Inspector Pramod Gupta (PW9) testified inter alia that when injured Guddu Ansari (PW4) was declared unfit for statement, he (PW9) obtained the MLC around 10 pm on 26/12/2009 from the hospital and went to spot and then made endorsement Ex PW9/A, sent tehrir and got FIR registered under Section 324 IPC and 27 Arms Act since he could not find any eye witness and injured was declared unfit for statement. Also, Inspector Pramod Gupta (PW9) stated that injured Guddu Ansari (PW4) had come near the spot in the intervening night of 26/12/97 and 27/12/97 at about 12.30 am where he had recorded the statement under Section 161 Cr.P.C of Guddu Ansari (PW4). Per contra to version of Inspector Pramod Gupta (PW9), injured Guddu Ansari (PW4) testified that he was relieved from the hospital at about 5 am from where he went to Sarai Kale Khan in auto rikshaw and reached there at 6 am. Also Guddu Ansari (PW4) stated that his brother had received the call from the police station, so thereafter he went to police station Nizamuddin, met Inspector Pramod Gupta (PW9) there. Guddu Ansari (PW4) also testified that he did not meet any police official in the hospital. Inspector Pramod Gupta (PW9) testified that while they SC No. 92/2011 13/22 State Vs. Javed were present near the graveyard near the place of occurrence in the intervening night of 26th and 27th December, 2009, Ct Anish (PW6) informed him that some boys were concealing themselves in the bushes near the drain. Inspector Pramod Gupta (PW9) organized a team comprising Ct Anis Ahmed (PW6), HC Akhtar, HC Mohd Ilyas (PW7), Ct Bhopal etc and went to said place. As soon as police party reached near the bushes, they saw two boys coming out of the bushes who started running from there after seeing the police party; those boys were over powered by them and their names were revealed as accused Javed and Salman (now declared juvenile). As per PWs 6 and 7, said accused while attempting to flee fell in the bushes on account of darkness and sustained injuries. PW9 did not even whisper of said falling of accused and their sustaining injuries. As per arrest memo Ex PW7/A of accused Javed scribed by Inspector Pramod Gupta (PW9) the time of such arrest of accused Javed was 2.50 am on 27/12/2009. If Guddu Ansari (PW4) is to be believed, then he had gone later to 6 am on 27/12/2009 at police station when he had given statement to the investigating officer Inspector Pramod Gupta (PW9) and as per presented case of prosecution at that time accused Javed SC No. 92/2011 14/22 State Vs. Javed had already been arrested and was in the police station itself. Arrest of accused Javed, as per presented case of prosecution, has come under cloud of doubt.
23. Inspector Pramod Gupta (PW9) admitted in the course of his examination that before 08/01/2010 he did not move any application for organization of Test Identification Parade of the accused Javed nor he had moved any application before Ld. Metropolitan Magistrate for directions for production of accused Javed in muffled face in court or accused to be kept in muffled face before conducting of Test Identification Parade. Applications seeking judicial custody remand inter alia of accused Javed on 27/12/09 and 08/01/10, on record, revealed of averment of the applicant police official Inspector Pramod Gupta (PW9) and ASI Narender respectively of the accused being in muffled face. Application seeking judicial custody remand inter alia of accused Javed on 22/01/10 of ASI Narender Singh on record, revealed neither of any averment of accused produced in muffled face nor in the order of the Ld. Metropolitan Magistrate there is mention of the accused Javed having been produced in muffled SC No. 92/2011 15/22 State Vs. Javed face. No copy of any daily diary has been filed nor produced nor proved that accused was kept in muffled face in police station after his arrest before producing in court on 27/12/2009. There was every likelihood of accused Javed having been shown by the officers of investigating agency in the police station in the morning of 27/12/2009 to first informant/complainant/victim Guddu Ansari (PW4) when as per PW4 he went to police station later to 6 pm and his statement was recorded by Inspector Pramod Gupta (PW9). Even Inspector Pramod Gupta (PW9) stated that in the morning of 27/12/2009 Guddu Ansari (PW4) had come to police station at 9.45 or 10 am and at the instance of Guddu Ansari (PW4) at 10 or 10.30 am that morning he prepared site plan Ex PW9/C after going to site. Site plan Ex PW9/C does not have any signature of Guddu Ansari(PW4) as attesting witness. Even in the testimony of Guddu Ansari (PW4) there is no whisper that at his instance Inspector Pramod Gupta (PW9) had prepared said site plan. Admittedly, accused Javed was not known to victim Guddu Ansari (PW4) prior to the occurrence. The name of accused Javed was neither mentioned in the lodged first information report nor was it mentioned in the statement under Section 161 Cr.P.C SC No. 92/2011 16/22 State Vs. Javed of victim Guddu Ansari (PW4).
24. It is trite to state that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions by the Apex Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in the court. The evidence of mere identification of the accused persons at the trial for the first time is from its very nature inherently of a weak character. The purpose of prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witness (es) in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. (See Kanta Prashad v. Delhi Administration, AIR 1958 SC 350; Budhsen and Another v. State of U.P., AIR 1970 SC 1321) SC No. 92/2011 17/22 State Vs. Javed
25. Site plan Ex PW9/C finds no mention of any source of light at the scene of crime on the night of occurrence. The occurrence was at 8.45 pm, as per Guddu Ansari (PW4). Ct Anish Ahmed (PW6) as well as ASI Mohd Ilyas (PW7), the accompanying officials of Inspector Pramod Gupta (PW9) in their testimonies do not whisper of any arrival of Guddu Ansari (PW4) at the place of occurrence at 12.30 am or later in the intervening night of 26th and 27th December, 2009 during their presence at the scene of crime. Witnesses Pws 6,7 and 9 also do not whisper of any source of light at the scene of crime. How could Inspector Pramod Gupta (PW9) record statement of victim Guddu Ansari (PW4) in the dead hours of night without any source of light? Evidence of PWs 4,6,7 and 9 when read as whole embodied every reasonable possibility of accused Javed having been shown to victim/complainant Guddu Ansari (PW4) in the police station in the morning hours of 27/12/2009 after his alleged arrest and Guddu Ansari (PW4) made to believe of accused Javed to be perpetrator of the crime upon him resulting in Guddu Ansari (PW4) pointing towards accused Javed, identifying him for the first time in the dock. Non keeping of accused Javed in muffled face, as elicited SC No. 92/2011 18/22 State Vs. Javed herein before justifies refusal of accused Javed in Test Identification Parade elicited in the TIP proceeding Ex AX1 (admitted document) before the Ld. Metropolitan Magistrate on 05/02/2010. Even if Inspector Pramod Gupta (PW9) had to avail leave, there were several officers at the aid of the SHO police station Hazarat Nizamuddin for getting organized Test Identification Parade in the present case entailing serious offence of 397 IPC. Organized Test Identification Parade in present case, in which accused refused, is accordingly farce perpetrated by the officers of investigating agency. No independent witness was joined in the arrest of accused Javed. No nearby resident was called for apprehension of the accused Javed as alleged or to become witness in the recovery of purse, Ex P2 alleged to have effected from accused Javed.
26. Seizure memo Ex PW7/F of the purse, Ex P2 finds mention simplicitor of purse of colour coke seized by Inspector Pramod Gupta (PW9) in the presence of HC Mohd Ilyas (PW7) from accused Javed on 27/12/2009. Though Ct Anish Ahmed (PW6) is not an attesting witness to Ex PW7/F but yet Ct Anish Ahmed (PW6) SC No. 92/2011 19/22 State Vs. Javed claimed him to be attesting witness to said document. There is no mention in Ex PW7/F that in the purse or otherwise any currency note or any paper articles were so recovered from accused Javed which were belonging to victim/complainant Guddu Ansari (PW4). Even purse, Ex P2 was produced in the Test Identification Parade proceeding Ex AX2 (admitted document) on 19/02/2010 before Metropolitan Magistrate and when it was identified by Guddu Ansari (PW4) no such articles namely one currency note of Rs 500/ bearing no. 6AB 26396J, Ex P6; one currency note of Re 1/ bearing no. 72G 528900, Ex P7; one visiting card of star motor driving college, Ex P3; card board paper of size of visiting card having written american express leather wallet, Ex P4; card board paper of size of visiting card having written centurion bank as well as JMD belt and purse house, Ex P5 were alleged/stated to be the articles recovered from accused Javed or to be belonging to the complainant/victim Guddu Ansari (PW4). When there was no mention of seizure of Exts P3 to P7, aforesaid in purse, Ex P2 at the time of alleged recovery and preparation of memo Ex PW7/F, how suddenly these articles were brought into existence and produced in the course of evidence of SC No. 92/2011 20/22 State Vs. Javed Guddu Ansari (PW4) on 19/09/2011 for the first time? Despite admitted availability no sincere efforts have been made for joining any independent witness in the alleged recovery of purse, Ex P2 and articles Exts P3 to P7, the alleged robbed articles from the possession of accused Javed.
27. Cumulative effect of the entire aforesaid discussion is that there was every likelihood of the accused Javed having been shown by officers of investigating agency in the morning of 27/12/2009 to Guddu Ansari (PW4) making him to believe that accused Javed was perpetrator of crime upon the person of Guddu Ansari (PW4) since Guddu Ansari (PW4) was not knowing accused Javed prior to occurrence and regarding accused Javed only description given in statement under Section 161 Cr.P.C by Guddu Ansari (PW4) was his height five feet six inches and no complexion, built, age, specific identification mark or other description of the accused was so given. Testimonies of material witnesses are embedded with the material contradictions, severe infirmities and inherent improbabilities aforesaid, which put the credibility of the SC No. 92/2011 21/22 State Vs. Javed prosecution case under cloud of doubt. Testimony of Guddu Ansari (PW4) can be termed as neither wholly reliable nor wholly unreliable witness as classified in the case of Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614. It would be extremely hazardous to place implicit reliance upon testimony of Guddu Ansari (PW4) to convict accused Javed in the backdrop of existence of severe infirmities, inherent improbabilities and material contradictions in the testimonies of PWs 4,6,7 and 9 respectively. In my considered opinion, prosecution has not been able to prove its case against the accused beyond reasonable doubt. Accused is given benefit of doubt and acquitted for the offences charged. Superintendent Jail be directed accordingly to release the accused, if not required to be detained in any other case in jail. File be consigned to record room.
Announced in the open court (GURVINDER PAL SINGH)
on date 28/04/2012 ASJ (FTC)/SD/ NEW DELHI.
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