Delhi District Court
State vs . 1. Salauddin S/O Ismail, on 31 July, 2013
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE02 (NORTH EAST)
KARKARDOOMA COURTS, DELHI
SC No. 73/2012
FIR No. 06/2004
Police Station Shahdara
U/Section 395/397/412/34 IPC
Reserved for orders on 31.07.2013
Judgment announced on 31.07.2013
State V/s. 1. Salauddin S/o Ismail,
R/o Budh Vihar, Savaull Moad,
Mahina Masjid, PS Nand Nagari, Delhi.
2. Parvez @ Feroz, S/o Alamgir,
R/o 373, Gali No.3, Karadam Puri,
Shahdara, Delhi.
3. Shadat @ Guddu @ Javed,
S/o Sh. Shamshad @ Shjokat @ Samad Khan
R/o Shahganj, Mohalla Neela Roja,
Jhijhana Distt. Samli, U.P.
:J U D G M E N T:
1.Prosecution was launched against the accused Aslam @ Wasim, Shakeel (both declared PO), Naushad @ Chote (since expired), Pervez, Salauddin, Afzal @ Guddu (since discharged) and Shahdat (who was subsequently arrested and produced before the court by way of filing supplementary challan) with the allegations that on 06.01.2004 at about 6.015 PM when complainant Kaushal Goel alongwith her son namely (State Vs. Salauddin etc.) (SC No.73/2012) Page No.1 of pages 27 Sumit and daughter Kumari Bhawna was present at her house i.e. B20/02, West Jyoti Nagar, Delhi, in the meantime two persons came inside the house and they asked her as to whether she was known to one thief, who had entered into her house and on this she replied in negative and in the meantime 56 other persons also entered into the house. Complainant Smt. Kaushal inquired from them the reason of their entering into her house but they avoided and they all forcibly took her in a room and made her to sit on the carpet. Son of the complainant namely Sumit was also made by them to sit on the carpet in the said room. The above said persons, threatened the complainant and her aforesaid son and asked them to tell the place where their valuables were kept and when they denied, they both were confined in a kitchen after tying their legs and hands. Kumari Bhawana was also reached at her house and she was also confined by them after tying her legs and hands with chunni. Out of the said persons, one person was having knife, while other was having a pistol and all of them were demanding money from the complainant. One of the said persons, while telling that an amount of Rs.10 Lakh is lying in the house of complainant, asked the complainant and her aforesaid children to hand over the said money and other two boys started searching in the house. Two persons took away Sumit inside the room of complainant by giving beatings to him and forced his to disclose the place where the money/jewellery was kept and complainant told them about the place where the jewellery/cash was kept. In the meantime, husband of the complainant namely Jai Kishan also reached at his house from his shop to take meal and when he entered into the house, after opening the door, one person from the above said intruders caught hold of him with his neck and put a pistol (State Vs. Salauddin etc.) (SC No.73/2012) Page No.2 of pages 27 on his chest. Jai Kishan was also dragged inside the kitchen where he found his wife (complainant), whose mouth was gagged with the cloth and her hands were tied behind her back and one person having pistol was holding her. All the said assailants/robbers took away jewellery consisting of three golden sets, one diamond set, some ornaments of silver, 45 golden chains, 78 golden ear rings, 3 pairs of diamonds ear rings, one diamond ring, one golden ring, one golden chain, cash amount of Rs.15,000/, two gold bangles from the hands of complainant (after cutting with the help of scissor) and one mobile phone of make Nokia. After committing decoity, they all went away from there and some one made a call to the police regarding the incident and the same was recorded in the PS vide DD No.20A. The said DD was assigned to SI Babban Upadhyay, who alongwith Ct. Rajbir went to the spot, where they found that the household articles were scattered on the floor. Statement of complainant was recorded and on the basis of said complaint, he prepared a rukka and got the FIR registered in the instant case by sending the rukka to PS through Ct. Rajbir. Crime Team was also called there, who inspected the spot and photographs of the place of incident were also taken by the photographer Ct. Sunder Lal. ASI Sahid Hussain from Finger Print Bureau picked up chance print from the spot and prepared his report. Dog squad was also called at the spot. One white colour handkerchief, one white colour chunni, one printed suit of white and green colour were recovered from the spot (i.e. bed room) and same were seized and took into police possession. On 06.03.2004 accused Aslam was arrested in case FIR NO.132/04 U/s 21 of NDPS Act and he made Disclosure Statement regarding committing dacoity in the present case alongwith other coaccused (State Vs. Salauddin etc.) (SC No.73/2012) Page No.3 of pages 27 persons. On 04.04.2004 accused Parvez was arrested in case FIR No.210/04 U/s 21 of NDPS Act by ASI Bhupender and in that case he made Disclosure Statement regarding his and his other coaccused involvement in the present case and thereafter, in pursuance of his above said Disclosure Statement, he led the police party to Saboli Mour near Madina Masjid at the house of accused Salauddin and accordingly he was apprehended at the instance of accused Parvez and thereafter, accused Salauddin got recovered one golden colour necklace, three golden colour chain, one golden colour tops having white nug and three pairs of golden colour ear rings without nug from his house and the said articles were seized by the IO. Accused Salauddin disclosed that the above said articles were the part of robbed articles and the same were of his share, which were robbed by him alongwith coaccused persons. Accused Salauddin was arrested by SI Ajay Kumar in case FIR No.210/04 regarding the recovery of above said articles U/s 412/34 IPC of PS Nand Nagari and intimation regarding the same was given to PS Shahdara. Co accused Ayub was also arrested in case FIR No.142/04 U/s 21 of NDPS Act and he made Disclosure Statement that he alongwith other coaccused persons committed decoity in the present case. HC Shiv Kumar also joined in the investigating with SI Ajay Kumar, who arrested accused Salauddin and Parvez in case FIR No.210/04 U/s 412/34 IPC. Further on 04.03.2004 SI Kashmira from PS Nanad Nagari got recorded DD No.61B regarding arrest of coaccused Naushad (since expired) in case FIR No.115/04 and regarding his Disclosure Statement and after receiving the above said DD, ASI Yogender went to PS Nand Nagari and collected the Disclosure Statement of accused Naushad from SI Kashmira.
(State Vs. Salauddin etc.) (SC No.73/2012) Page No.4 of pages 27 On 18.03.2004, accused Naushad (since expired) and Aslam (since PO) were obtained on the police remand by Insp. Z.H. Khan in case FIR No.49/04 U/s 394/395/397 IPC and they both were also interrogated by ASI Yogender Singh and during the course of interrogation, they made their Disclosure Statement. Thereafter, accused Naushad and Aslam led the police party to the spot and they pointed out the place of occurrence. ASI Yogender Singh moved an application for conducting the judicial TIP of accused Aslam and Naushad but they refused to participate in the said proceeding. On 12.04.2004. ASI Yogender went to PS Nand Nagari and met ASI Bhupender, IO of the case FIR No.207/04 in which accused Parvez was arrested by him and he made his Disclosure Statement regarding his involvement in the present case and ASI Yogender collected the Disclosure Statement from him. After the arrest of accused Salauddin, ASI Yogender moved an application for judicial TIP of accused Parvez but on 29.04.2004 he refused to participate in the said proceedings. On 30.04.2004 accused Parvez was remanded on one day PC and during PC remand, he led the police party to the spot i.e. House No.B20/02, West Jyoti Nagar and at his instance pointing out memo was prepared by the IO and during that course, complainant Kaushal Goel had identified him while saying that he was carrying katta at the time of committing the offence. On 07.09.2006 ASI Yogender Singh received DD No.15 regarding the arrest of accused Shahdat in case FIR No.472/06 U/s 307/353 IPC PS Sarita Vihar by Anti Action Cell and after receiving the above said DD, ASI Yogender Singh went to PS Sarita Vihar, Anti Action Cell, and from there he collected the Disclosure Statement of accused Shahdat from IO of the said case SI Solanki. On 06.12.2006 when accused (State Vs. Salauddin etc.) (SC No.73/2012) Page No.5 of pages 27 Shahdat was being produced before the court concerned on production warrant, ASI Yogender Singh formally arrested and interrogated him after seeking the permission of the court and during that course he made his Disclosure Statement. Statements of witnesses were recorded in this case and then after completion of investigation, charge sheet against the accused Aslam @ Wasim, Shakeel (both declared PO), Naushad @ Chote (since expired), Pervez, Salauddin, Afzal @ Guddu (since discharged) & Shahdat (who was subsequently arrested and produced before the court by way of filing supplementary challan) U/s 394/395/397/412 IPC was filed before the court Ld. Area Magistrate, who after completing the proceedings U/s 207 Cr.P.C, committed the case for sessions as the offence alleged against the accused persons are exclusively triable by the court of sessions.
2. It is pertinent to mention here that during the course of proceedings, accused Alam and Shakeel were declared as Proclaimed Offenders, accused Afzal was discharged and accused Naushad got expired and the case was proceeded against accused Salauddin, Parvez and Shahdat (who was subsequently arrested and produced before the court by way of filing supplementary challan).
3. After due deliberation on the point of charge, a charge under section 395/397/34 IPC was framed against the accused Parvez @ Firoz and Shahdat, whereas separate charge U/s 412 IPC was framed against accused persons Parvez @ Firoz and Salauddin and also charge U/s 174A IPC was also framed against accused Shahdat @ Guddu (as he failed to appear before the court at the relevant time as required by a Proclamation of Sec.82 Cr.P.C), to which the said accused persons pleaded not guilty and claimed trial.
(State Vs. Salauddin etc.) (SC No.73/2012) Page No.6 of pages 27
4. To bring home charge, prosecution has examined as many as thirty one witnesses in all and thereafter, PE was closed. Statements of accused persons were recorded wherein they controverted the entire evidence led by the prosecution as false and claimed to be innocent. They categorically stated that PWs who deposed against them were the police officials and they deposed being interested witnesses. They opted not to lead any evidence in their defence.
5. PW1 Jai Kishan is the husband of complainant. PW2 Smt. Kaushal Geol is the complainant. PW3 Sumit is the son of complainant. PW4 ASI Shahid Hassan is the official, who picked up the chance print from one plastic dire (container) and developed the chance print by chemical process. He proved on record his report Ex.PW4/A bearing his signature at point A. PW5 Kumar Bhawana is the daughter of complainant. PW6 Ct. Sandeep is the official from Dog Squad, who was called by the IO at the spot, stated that there could be no trace of offenders. PW7 Ct. Sunder Lal is the photographer, who took the photographs of the place of incident and proved on record the positives of photographs as Ex.PW7/1 to Ex.PW7/14 and negatives thereof as Ex.PW7/1A to Ex.PW7/14A. PW8 Ct. Rajbir Singh is the official, who accompanied IO/SI Babban Upadhyay to the spot i.e. H. No. 20/2, West Jyoti Nagar, Delhi, where complainant Smt. Kaushal Goel met them. IO recorded the statement of complainant and on the said statement IO made his endorsement and gave it to him for registration of FIR and accordingly he got registered the FIR in the instant case. He also stated that IO seized one chunni from that house vide seizure memo Ex.PW3/PA. He stated that he did not join the investigation of this case thereafter.
(State Vs. Salauddin etc.) (SC No.73/2012) Page No.7 of pages 27 Ld. Addl. PP cross examined the said witness, after seeking permission of the Court, as he was resiling from his earlier statement and during that course he conceded that on 06.03.2004 accused Aslam was arrested in case FIR No. 132/04 U/s 21 NDPS Act. Further one mobile phone was recovered from the possession of said accused. He proved on record the Disclosure Statement of accused Aslam as Ex.PW8/A and the personal search memo of said accused as Ex.PW8/B. PW9 Ct. Virender Singh proved on record the Disclosure Statement given by accused Aslam and which was signed by him at point A. PW10 Ct. Satender Kumar testified that ASI Yogender Singh formally arrested the accused Salauddin, Parvez and Afzal, who were already in PS in custody in some other case, vide arrest memos Ex.PW10/A, Ex.PW10/B and Ex.PW10/C respectively. PW11 HC Jagbir Singh, the MHC(M) at PS Nand Nagari as on 06.03.2004, proved on record the copy of entry no.2640 Ex.PW11/A made by him in register no.19 regarding deposit of one mobile phone make Nokia by Insp. V.P. Singh in case FIR No.132/2004. He stated that the said mobile was handed over to ASI Yogender of PS Shahdara by him vide RC No.505/21 on 07.06.2004, copy of which is Ex.PW11/B. He also proved on record the entry made by him at Sl. No.2729 on 04.04.2004, copy of which is Ex.PW11/C, vide which SI Ajay Kumar deposited a pullanda sealed with the seal of AKS in case FIR No.210/04 PS Nand Nagari. He further stated that on 07.06.2004 the said pullanda was taken away from Malkhana by ASI Yogender of PS Shahdara vide RC No.504/21, copy of which is Ex.PW11/D. PW12 Ct. Vinod testified that on 01.06.2004, he alongwith SI Yogender came to Karkardooma Courts and accused Ayub @ Numberdar was formally arrested by the IO (State Vs. Salauddin etc.) (SC No.73/2012) Page No.8 of pages 27 as he was produced in the Court. PW13 Ct. Surender deposed that on 30.04.2004, he alongwith ASI Yogender Singh came to Karkardooma Courts where accused Firoz @ Parvez was being produced before the court in some other case. With the permission of court, accused Firzo @ Parvez was interrogated by the IO and he was remanded in police custody by the police. Accused Firoz @ Parvez led them to a house no.B20/2, West Jyoti Nagar, Delhi and pointed out the said house vide pointing out memo Ex.PW13/A signed by him at point A. One Smt. Kaushal came outside and identified accused Parvez as one of the offenders. He also identified the accused Parvez. PW14 ASI Harpal Singh testified that on 03.03.2004 he joined the investigation with SI Kashmira Singh in case FIR No.115/04 of PS Nand Nagari and on that day accused Naushad gave a Disclosure Statement to SI Kashmira Singh. PW15 SI Babban Upadhyay is the IO, who on 06.01.2004 at about 6.45 PM after receipt of DD No.20A alongwith C. Rajbeer reached at the spot i.e. H. No.20/2, West Jyoti Nagar, Shahdara, Delhi, where landlady of that premises met them. He found articles lying scattered in the said house. Thereafter, he recorded the statement of said lady Ex.PW2/A, which bears his attestation at point X. He made his endorsement Ex.PW15/A on said statement Ex.PW2/A and gave rukka to Ct. Rajbeer for registration of FIR and accordingly, he got the FIR Ex.PW15/B registered in this case. He also testified that SHO, ACP East, came to the spot alongwith the Crime Team and Dog Squad. Scene of spot was got photographed from different angles by the Crime Team. He inspected the site and prepared site plan Ex.PW15/C at the instance of complainant. He found one white colour handkerchief, one white colour chunni, one printed suit white (State Vs. Salauddin etc.) (SC No.73/2012) Page No.9 of pages 27 and green colour, which were recovered from bed room. The said articles were kept in a polythene bag and were marked as A1. One cream colour chunni was handed over by the complainant vide which Sumit had been tied by the accused persons. Same was also seized and given mark A3 after putting the same in a polythene bag. He also stated that all these polythene bags were put in one big polythene bag and sealed with the seal of BUP and were seized vide seizure memo Ex.PW3/PA. Inquiries were made at the spot from the family members/neighbourers of the said house and statements of witnesses were recorded U/s 161 Cr.P.C. On 07.01.2004, he again went to the spot and complainant Kaushal Goel handed over one cloth bag having one blue colour payajami (without string), which was seized vide seizure memo Ex.PW2/B bearing his attestation at point X. He also stated that the complainant told to him that this bag did not belong to her and must have been left by the accused persons at her house. On 09.01.2004 further investigation was handed over to SI Jawahar Singh. He identified the case properties as Ex.P1, P2, P3, P4 & P5. PW16 Ct. Rajbeer testified that on 06.03.2004 he joined the investigation of case FIR No.132/04 alongwith SI Ajay Kumar and ASI Rajender. One Aslam was arrested in that case and during his personal search one mobile phone was recovered. He made a disclosure Ex.PW8/A, which was recorded by SI Ajay Kumar. He further testified that accused Aslam had stated that this mobile phone had been stolen from Jyoti Nagar, Shahdara. PW17 Ct. Kushal Singh testified that on 18.04.2004 he had joined the investigation of this case alongwith ASI Yogender Singh and on that day accused Shakeel had pointed out H. No.B20/2, West Jyoti Nagar, Shahdara vide pointing out memo (State Vs. Salauddin etc.) (SC No.73/2012) Page No.10 of pages 27 Ex.PW17/A. PW18 SI Dhanvir Singh deposed that on 06.03.2004 at about 10.00 PM Ct. Rajbir came at the Police Station alongwith rukka sent by SI Ajay Kumar and on the basis of said rukka, he recorded the FIR No.132/04 U/s 21/61/85 NDPS Act Ex.PW18/A. PW19 SI Ajay Kumar testified that on 06.03.2004 they arrested one person namely Aslam in case FIR No.132 under NDPS Act and IO of the case ASI Rajender interrogated Aslam and he made his Disclosure Statement Ex.PW19/A bearing his signatures at point A. This witness was again examined after the arrest of accused Shahdat. During that course, he stated that on 04042004, accused Parvej, who was arrested in case FIR no. 207/04 u/s 21 of NDPS Act was interrogated by the IO ASI Bhupinder in that case and during the course of interrogation, accused Parvej made disclosure statement Ex.PW24/A. Thereafter, in pursuance of above said disclosure statement, accused Parvej led them to Saboli Mour, Near Madina Masjid at the house of Sallauddin, who found present at his house. Thereafter, at the instance of Parvej, Sallauddin was apprehended and then, accused Sallauddin got recovered one golden colour necklace, three golden colour chains and one golden colour tops having white nag and three pairs of golden colour ear rings (tops) without nag, from his house and the above said jewellery articles were seized by him vide seizure memo Ex.PW26/B, which bears his signatures at pointB and signature of accused Salauddin at pointX. Accused Salauddin disclosed that the abovesaid articles were the part of robbed articles and the same were of his share, which were robbed by them alongwith Parvej, one Afzal @ Pappu (since discharged) and others from West Jyoti Nagar. Thereafter, accused Salauddin disclosed that the share of accused Parvej of robbed articles were also (State Vs. Salauddin etc.) (SC No.73/2012) Page No.11 of pages 27 kept by Parvej with him but he had given the share of Parvej to Afzal @ Guddu for safe custody. Thereafter, accused Salauddin led the police party to the house of Afzal @ Guddu at Upper Kot, Loni, Ghaziabad, UP and Afzal @ Guddu was found present there. They apprehended Afzal @ Guddu at the instance of Sallauddin and thereafter, Afzal @ Guddu got recovered two silver coins, one pair of golden colour jhumka, and one ear ring of golden colour and one necklace of golden colour from his house while saying that the abovesaid golden articles were of the share of Parvej, which were taken by him from accused Salauddin for safe custody. The said articles were taken into possession by him after sealing in a cloth parcel and deposited the same with MHC(M). Later on, the abovesaid case property i.e. two silver coins, one pair of golden colour jhumka, and one ear ring of golden colour and one necklace of golden colour were found the case property of case FIR no.49/04 PS Shahdara and it was handed over by the MHC(M) to SI Rakesh Kumar, IO of the above said case. Both the accused Salauddin and Afzal @ Guddu were arrested by him and he got registered case FIR No.210/04 u/s 412/34 IPC at PS Nand Nagari, in this regard. The intimation to PS Shahdara was given by DO/ASI Pushpa regarding the recovery of the case property of the present case. Later on, the IO of the present case met her and he took the documents regarding the recovery from there.
During cross examination he stated that accused Parvez did not tell any particular house number regarding concealing the ornaments, however he named Salauddin. The recovery was effected from the room, which was lying openly. He could not tell whether the family member of Dinesh Panchal was present at the said house or not at that point of time. Except (State Vs. Salauddin etc.) (SC No.73/2012) Page No.12 of pages 27 Salauddin, none was present in the house of Dinesh Panchal, when they apprehended him. They remained there at about 1 and ½ hours in the said house. He made departure entry mentioning therein that they are going at the house of Salauddin, whose name was disclosed by accused Parvez, but he could not tell the DD number of the said entry. Even after recovery of the alleged articles, he also made efforts to join the public persons, but none ready to sign the proceedings. He conceded that Parvez was with them at the time of recovery but even his signature was not obtained by him on the memo Ex. PW26/B. All the writing work was done by him with his own hand. He conceded that except the disclosure statement of the accused persons and recovery, he could not collect any evidence regarding his involvement in the present case. He could not tell whether accused Salauddin was having any previous involvement in any criminal case or not at the time of preparing the charge sheet against him. Accused Salauddin did not point out the place of occurrence in the present case.
PW20 HC Surjeet Singh is the MHC(M), who has proved on record the entry no.1765 made by him in register no.19 on 06.01.2004 Ex.PW20/A, vide which SI Babban Upadhyay deposited three pullandas in sealed condition with the seal of BUP in malkhana in case FIR No.06/04. He also proved on record the entry no.1766 made by him in register no.19 on 07.01.2004 Ex.PW20/B, vide which SI Babban Upadhyay deposited one bag with clothes in the aforesaid case FIR number. He further proved on record the entry no. 2013 made by him in register no.19 on 07.06.2004 Ex.PW20/C, vide which ASI Yogender Singh deposited Rs. 40,000/ and some gold articles and one mobile phone Nokia 2100 in the aforesaid case FIR number, to which he brought (State Vs. Salauddin etc.) (SC No.73/2012) Page No.13 of pages 27 from PS Nand Nagari. PW21 HC Manjeet Singh is the Duty Officer, who testified that on 04.04.2004 at about 1.40 PM, he received a rukka through Ct. Shiv Kumar sent by SI Ajay Kumar and on the basis of same, he recorded the FIR No. 210/2004 U/s 412/34 IPC, carbon copy of which is Ex.PW21/A. He also stated that after registration of FIR, further investigation of this case was marked to SI Ajay Kumar. PW22 SI Kiran Pal testified that on 16.04.2004, he arrested one accused Ayub @ Azam in case FIR No.142/04 PS Seemapuri U/s 21/61/85 NDPS Act and during investigation, he interrogated him and he made a detailed Disclosure Statement of different offences Ex.PW22/A. Said accused also disclosed that three months back he committed a dacoity at B - Block, West Jyoti Nagar alongwith his associates namely Shahdat, Parvez, Naushad, Shakeel @ Pahalwan and Aslam. He also stated that Ct. Narender and SI Sanjay were present when he recorded the Disclosure Statement of said accused and after recording of Disclosure Statement, he immediately informed the police of PS Shahdara and the IO of that case collected the Disclosure Statement Ex.PW22/A from him. PW23 SI Sanjay Kumar deposed that on 16.04.2004 one Ayub @ Azam, who was arrested in case FIR No.142/04 PS Seemapuri under NDPS Act, made a Disclosure Statement Ex.PW22/A, which was recorded by SI Kiran Pal in which he stated that three months back he committed dacoity in B Block, West Jyoti Nagar alongwith his associates Shahdat, Parvez, Naushad, Shakeel and Aslam. PW24 ASI Bhupender testified that on 03.04.2004, investigation of the case FIR No. 207/04 U/s 21/61/85 NDPS Act was handed over to him and accused Parvez was arrested by him, who made a Disclosure Statement Ex.PW24A of different offences, wherein he (State Vs. Salauddin etc.) (SC No.73/2012) Page No.14 of pages 27 disclosed of having committed a dacoity three months back at B Block, West Jyoti Nagar alongwith his associates Naushad, Javed, Shahzad and other persons. He further stated that immediately after the Disclosure Statement of said accused, he informed PS Shahdara and thereafter, IO of said case met him and collected the copy of the Disclosure Statement of accused Parvez. PW25 ASI Rajender Singh testified that on 06.03.2004, he arrested one accused Aslam @ Wasim in case FIR No.132/04 U/s 21 NDPS Act and one mobile phone model 2100 was recovered from the said accused and he also gave a Disclosure Statement Ex.PW8/A to him. He also stated that when he interrogated the accused Aslam @ Wasim, SI Ajay Kumar and Ct. Rajbir were present. Further in his Disclosure Statement accused Aslam @ Wasim made a confession of different offences committed by him and he had also disclosed that 1415 days ago he had committed a dacoity in a house situated at West Jyoti Nagar, Shahdara alongwith his associates Naushad, Akram, Ayub, Afzal, Shahdat, Amir, Parvez & Zuber and he committed the dacoity of Rs.2,50,000/ and the jewellery items and a mobile phone. PW26 HC Shiv Kumar testified that on 04.04.2004, accused Salauddin and Firoz were arrested by SI Ajay Kumar in case FIR No.210/04 U/s 412/34 IPC. Accused Salauddin made a Disclosure Statement Ex.PW26/A. Some gold articles were recovered at the instance of accused Salauddin and the same were seized vide Ex.PW26/B bearing his signatures at point A. He correctly identified the golden chains Ex.P1, P2 & P3 and neckless Ex.P4 and ear rings Ex.P5 to P11. He also identified one mobile phone of Reliance Samsung to be the same which was recovered in his presence.
During cross examination he stated that accused (State Vs. Salauddin etc.) (SC No.73/2012) Page No.15 of pages 27 Salauddin was arrested from Kacchi Colony near Fanne Khan Mod at about 5.306.00 PM but he could not tell the number or gali number of that house. There were 1012 police officials in police party but he could not tell the numbers of the raiding party. He showed his ignorance whether it was a general raid or raid on some specific information. He stated that briefing was made by the IO that he is going to some where and they had to follow him. Further no public witness was asked to participate in the raiding party. He had caught accused Salauddin and Firoz from the house of Dinesh Panchal. He could not tell as to who had signed on the memo regarding recovery made at the instance of accused Salauddin. IO did not weigh the alleged golden jewellery. He also stated that accused Firoz was not present at the time of recovery from the house of Dinesh Panchal. Firoz was present outside the house in the custody of other police official but he could not tell the name of that official. He could not tell the name of police officials, who entered the house of Dinesh for the recovery of alleged articles. He could not tell as to what was recovered from the personal search of accused. PW27 Ms. Ruby Alka Gupta, the then MM, proved on record the application moved by SI Yogender Singh Ex.PW27/C for conducting the TIP of case property. She also proved on record her report Ex.PW27/A bearing her signatures at point A regarding conducting of TIP. Her certificate regarding correctness of TIP is Ex.PW27/B. IO was given a copy of the proceeding vide application Ex.PW27/D. PW28 HC Suresh Chand, is the Duty Officer at PS Shahdara at the relevant time, who proved on record the computerized copy of FIR bearing No.06/04 as Ex.PW15/B and his endorsement made on rukka vide Ex.PW28/A. He also stated that on 03.04.2004, he was posted (State Vs. Salauddin etc.) (SC No.73/2012) Page No.16 of pages 27 as Duty Officer at PS Nand Nagari. He proved on record the copy of FIR bearing no.207/04 PS Nand Nagari as Ex.PW28/B. PW29 SI Nagender Kumar testified that on 25.10.2012, HC Jitender from PS Malviya Nagar gave information through telephone that he had arrested the accused Shahadat @ Guddu @ Javed as PO, who was produced in the court on production warrant and DD No.64B dated 25.10.2012, copy of the same is Ex.PW29/A, was recorded in this regard. Accused Shahadat @ Guddu @ Javed was remanded to JC on 25.10.2012. He prepared the supplementary charge sheet against accused Shahadat @ Guddu @ Javed U/s 174A IPC. PW30 ASI Yogender Singh testified that on 19.01.2004 investigation of the present case was assigned to him. On 28.01.2004 he came to Karkardooma Court, as accused Javed Akhtar was being produced before the concerned court on production warrant and he moved an application for seeking permission to arrest and interrogate the accused Javed Akhtar before the concerned court and accordingly permission was granted to him and thereafter, he formally arrested the accused Javed Akhtar vide arrest memo Ex.PW29/A bearing his signature at point A and interrogated him and during that course he made disclosure statement. Thereafter accused Javed Akhtar was produced before the court concerned and from there he was remanded in JC. He also got conducted the judicial TIP of accused Javed Akhtar, but complainant could not identify him in the judicial TIP. Thereafter accused Javed Akhtar was got discharged by him. Accused Javed Akhtar (since discharged) made disclosure statement and disclosed that one another accused namely Pramod @ Paiyaa was also involved in the present case he was also arrested by him and ultimately accused Pramod @ (State Vs. Salauddin etc.) (SC No.73/2012) Page No.17 of pages 27 Paiyaa was also got discharged by him as no incriminating evidence except the disclosure statement could be collected against him. Further On 04.03.2004, SI Kashmira from PS Nand Nagari got recorded DD no.61B Ex.PW29/B regarding arrest of accused Naushad in case FIR no.115/04 U/s 399/402 IPC and accused Naushad made disclosure statement in the above said case regarding his involvement in the present case. After receiving the above said DD on 09.03.2004 he went to PS Nand Nagari and met SI Kashmira there, who handed over copy of disclosure statement of accused Naushad, Mark A. He recorded the statement of SI Kashmira U/s 161 Cr.P.C. On the same day, ASI Rajender also handed over the copy of disclosure statement of accused Aslam @ Wasim Ex.PW8/A in case FIR no.132/04 U/s 21/61/85 of NDPS Act of PS Nand Nagari in which accused Aslam also made disclosure statement regarding his involvement alongwith other co accused in the present case. He also recorded the statement of ASI Rajender in this regard. Further on 18.03.2004, Inspector Z. H. Khan obtained the police remand of accused Aslam and Naushad (since expired) in case FIR no.49/04 U/s 394/395/397 IPC and after seeking permission from the SHO he also interrogated and arrested both the accused persons in the present case vide arrest memos Ex.PW29/C (of accused Naushad) and Ex. PW29/D (of accused Aslam) both the memos bear his signature at point A respectively. Thereafter, both the accused persons, who were in muffled face led the police party to H. No.20/2, West Jyoti Nagar and they pointed out the said house, vide pointing out memo Ex.PW29/E & F, from where they had committed robbery. Thereafter, both the accused persons were brought to PS Shahdara. He moved an application in the court concerned for conducting the judicial (State Vs. Salauddin etc.) (SC No.73/2012) Page No.18 of pages 27 TIP of both the accused persons and it was fixed for 27.03.2004 and 29.03.2004 but both the accused persons refused to participate in the judicial TIP on the abovesaid respective dates. On 08.04.2004 accused Shakeel (since PO) was formally arrested by him from the court concerned where he was produced on production warrant vide arrest memo Ex. PW 29/G. He moved an application before the court concerned for conducting the judicial TIP of accused Shakeel and during the judicial TIP proceeding the complainant could not identify him. On 12.04.2004, he went to PS Nand Nagari where ASI Bhopinder met him, who arrested the accused Parvesh in case FIR No.207/04 U/s 21/61/85 of NDPS Act and in the said case accused Parvesh made disclosure statement regarding his involvement in the present case alongwith his coassociates. He collected the copy of disclosure statement of accused Parvesh Ex.PW24/A from ASI Bhopinder. He recorded the statement of ASI Bhopinder. In the meantime SI Ajay Kumar of PS Nand Nagari also met him, who arrested the accused Salauddin and Afzal in case FIR no. 210/04 U/s 412/34 IPC and he obtained the photocopy of disclosure statement of accused Salauddin and Afzal and copy of seizure memo from SI Ajay Kumar. He also stated that he had also obtained the copy of disclosure statement of Parvez from ASI Bhupender as he had arrested Parvez in case FIR No.207/2004 U/s 21/61/85 NDPS Act. On 21.04.2004, Insp. Z.H. Khan obtained the police remand of accused Parvez, Salauddin and Afzal (since discharged) in case FIR No.49/2004 U/s 394/395/397 IPC, PS Shahdara. Since the accused persons Parvez, Salauddin and Afzal had already made their disclosure statements regarding their involvement in the present case, so he arrested them in this case vide arrest memo already Ex. PW10/A of accused (State Vs. Salauddin etc.) (SC No.73/2012) Page No.19 of pages 27 Salauddin and Ex. PW10/B of accused Parvez and Ex. PW10/C of accused Afzal (since discharged), all above said memos bear his signatures at Point B respectively. Thereafter, on the next day, they were produced before the court concerned. On the same day, he had moved an application for conducting the judicial TIP of accused Parvez and the same was fixed for 29.04.2004. On 29.04.2004, accused Parvez refused to participate in the judicial TIP proceeding. On 30.04.2004, he obtained one day police remand of accused Parvez and during PC remand, accused Parvez led the police party to H.No. B20/2, West Jyoti Nagar, Delhi and he pointed out the said house, vide pointing out memo Ex.PW30/H, from where they had committed robbery after confining the members of the house in a Kitchen. When accused Parvez pointed out the place of occurrence, Complainant Smt. Kaushal Goyal had identified accused Parvez while saying that he was the same person, who was carrying Katta at the time of committing offence in their house. He recorded the supplementary statement of Smt. Kaushal and Ct. Surender. Thereafter, accused Parvez was brought back to PS Shahdara. On the next day, he was produced before the court concerned and from there he was remanded to JC. On 31.05.2004, coaccused Ayub (since discharged) was arrested by SI Kiran Pal in case FIR No. 142/2004 U/s. 21/61/85 NDPS Act, PS Seema Puri. Since the coaccused of the present case had disclosed the name of accused Ayub in their disclosure statement, so he went to PS Seema Puri. Accused Ayub had also made disclosure statement regarding his involvement in the present case in the above said case. He obtained the copy of disclosure statement of accused Ayub and thereafter, on the next day i.e. on 01.06.2004 he had (State Vs. Salauddin etc.) (SC No.73/2012) Page No.20 of pages 27 formally arrested and interrogated accused Ayub after seeking permission from the court concerned. His judicial TIP was also got conducted on 05.06.2004, but the Complainant did not identify him in the judicial TIP proceedings, thereafter he was got discharged by him on 07.06.2004. On the same day, he went to PS Nand Nagri and from there he obtained the case property of the present case recovered in case FIR No. 210/2004 i.e. one Pulanda sealed with the seal of AKS containing jewellery i.e. three chains, three pair of tops, one ear top, one necklace and one mobile phone in unsealed condition and the same was brought by me to PS Shahdara vide RC No. 504/21 and 505/21 and it was deposited by him with MHC (M) of PS Shahdara. Further on 09.06.2004, the judicial TIP of the case property was got conducted and during that proceeding the husband of the complainant namely Jai Kishan Goel had identified the aforesaid articles correctly. Later on, the above said property was got released by the Complainant on superdari. On 07.09.2006, he received DD No.15 Ex.PW30/I, regarding arrest of accused Shahadat in case FIR No. 472/2006 U/s. 307/353 etc. IPC, PS Sarita Vihar by Anti Action Cell. Since coaccused Parvez had already disclosed the name of Shahadat in his disclosure statement, so after receiving the aforesaid DD, he went to PS Sarita Vihar Anti Action Cell, where IO of the said case SI Solanki met him. He obtained the copy of disclosure statement of accused Shahadat.
During cross examination he conceded that alleged disclosure statement of Shahdutt recorded by SI Naresh Solanki is not on record. He further conceded that recovery was not effected from accused Parvez in the present case. Further the present case had been registered on the basis of (State Vs. Salauddin etc.) (SC No.73/2012) Page No.21 of pages 27 the statement of Smt. Kaushal Goel w/o Jai Kishan Goel. He denied that incident of LOOT PAT was not taken placed in the presence of Jai Kishan Goel, husband of the complainant. The case property which was collected by him from MHC(M) PS Shahdara was sealed in two parcels and the recovered case property (jewellery items) were belonging to Smt. Kaushal Goel. He had asked Jai Kishan Goel to produce the receipts of the purchase of the jewellery items but he failed to do so.
PW30 ASI Yogender Singh when he was recalled for further examination to get clarification regarding the case property, he clarified that he had collected two parcels from PS Nand Nagri containing jewellery articles in one parcel and mobile phone make Nokia in other parcel and both the parcels were deposited by him at PS Shahdara vide RC No. 504/21 and 505/21 and no cash amount was containing in any of the parcels, however, on 27.04.2013, he had erroneously deposed that one parcel was containing cash amount of Rs.40,000/ and the same was deposited by me with MHC (M) PS Shahdara. He clarified that the position regarding case property is that he had deposited two parcels containing gold articles and mobile phone make Nokia. PW31 ASI Jitender Kumar testified that since, accused Shahadat @ Guddu was already declared PO in the present case, so he was in search of accused Shahadat @ Guddu. He came to know that accused Shahdat @ Guddu was arrested in case FIR No. 121/2012 U/s 307 IPC PS Adarsh Mandi, Shamli, UP, therefore on 13.09.2012, he moved an application before the court of concerned Ld. ASJ, for production warrant, accordingly, accused Shahadat @ Guddu was produced before that court on 25.10.2012 and he was remanded to JC. He gave information to PS Shahdara in this regard and DD No. (State Vs. Salauddin etc.) (SC No.73/2012) Page No.22 of pages 27 64B Ex.PW29/A was recorded at PS Shahdara.
Clarificatory statement of CW1HC Roshan Lal was recorded as CW1, wherein he stated that as per the register no.19, on 07.06.2004 ASI Yogender had deposited two parcels vide RC No. 504 & 505 containing jewellery articles and mobile phone Nokia and the above said articles and mobile phone were released to the complainant i.e. Kaushal Goel on superdari on 24.07.2004. He proved on record the photocopy of the relevant entry of register No.19 as Ex.CW1/A.
6. After completion of prosecution evidence all the accused persons were examined U/s 313 Cr.P.C and in their respective statements recorded, all of them denied the story of prosecution and claimed innocence on the plea that they were falsely implicated in this case. They opted not to lead any evidence in their defence.
7. I have perused the entire records carefully and have also given my prolonged consideration to the controversy in hand and in my considered opinion, the prosecution has been failed to prove its case against any of the accused persons beyond the shadow of reasonable doubt.
First of all, it is not disputed that the accused persons were not apprehended at the spot, rather, they were arrested subsequently by the police officials in another cases and on their disclosures, they were arrested in this case but no public witness was joined in the investigation at any stage of the investigation. Even during the subsequent stages i.e. apprehension of the accused persons and recording of their disclosure statements or even at the stage of recovery of mobile phone and looted jewellery items, no public person was joined in the investigation. Perusal of the record shows that no sincere effort were taken by the police to join public persons at (State Vs. Salauddin etc.) (SC No.73/2012) Page No.23 of pages 27 least after the apprehension of the accused persons, rather, a stock plea that 23 neighbours in the gali to join were asked to join the investigation but they refused (at the time of apprehension of accused from the house of Dinesh Panchal and making of recovery from that house at the instance of accused Salauddin) and even after recovery of the alleged articles, he also made efforts to join the public persons, but none ready to sign the proceedings, has taken and admittedly, no action was taken against them. No cogent explanation has been given for the said failure on the part of IO. Admittedly, no notice was given to the public persons, who refused to join the proceedings. The witnesses examined by the prosecution have given a stereo type version that public persons were asked but they all refused to join the raiding party and left away. There is nothing on record to show that whether any notice was served upon the persons who refused to join the raiding party. Further, the proceedings of the police party were continued for quite a long time but no independent witness was joined in the investigation despite the fact that they could be easily available at the spot. Even the landlord namely Dinesh Panchal, landlord of the premises from where the accused Salauddin was apprehended and arrested was not made a witness for the reasons best known to the IO, which cast a serious doubt in the prosecution story. In Megha Singh Vs. State of Haryana, AIR 1995, SC 2339, it was observed by the Hon'ble Supreme Court that absence of a public witness under such circumstances creates doubt on the veracity of the prosecution case.
I would also like to mention here that the Hon'ble Supreme Court in various judgments has passed such directives to ensure the fair play. In the present case, no such (State Vs. Salauddin etc.) (SC No.73/2012) Page No.24 of pages 27 efforts were taken by the police officials which leaves a room for the doubt in the circumstances of alleged seizure of weapons. The various circumstances as mentioned above show that the recovery effected by the police is highly doubtful and cannot be safely relied upon. Moreover, the testimonies of the witnesses produced and examined before this court are not in consistent with each other and as such they can also not be safely relied upon.
Moreover, the identify of the accused persons are not established beyond doubt as it is a matter of record that the complainant in his statement upon which the rukka was prepared did not mention the physical description of the assailants or robbers and admittedly, the accused persons were not arrested at the spot and it is also not the case of the prosecution that the accused persons were earlier known to the complainant, then in these circumstances it is not clear as to how she could identify the accused Parvez @ Firoz subsequently i.e. during the time when accused Parvez was produced before the complainant by the police. At this juncture, it is to be added that from the perusal of the testimony of complainant (PW2), it is revealed that the same is not consistent regarding the identification of the accused persons as in his examination in chief she categorically stated that "she can not identify any of offenders today as all of them had covered their faces partly by cloth". Even during cross examination she stated that "she can not say that accused Pravez @ Firoz is the same person, who had brought her husband to kitchen forcibly". PW2 Jai Kishan (husband of the complainant) stated that "he can not identify the offenders now. He never went to Central Jail Tihar for TIP Proceedings. He has also not identified any of (State Vs. Salauddin etc.) (SC No.73/2012) Page No.25 of pages 27 offender before the police." During cross examination also, on the pointing out of Addl. PP for the state towards accused Parvez, he stated that "he can not say that it was accused Parvej @ Firoz". Even PW3 Sumit (son of complainant) also stated that "he can not identify any of those offenders now". He also stated that "he can not say that accused present in the court today namely Parvez @ Firoz was one of them." Like wise, PW5 Kumar Bhawana (daughter of complainant) stated that "she can not say that any of those boys is present in court today." So in this situation, the identification of the accused persons becomes doubtful. Further there are several contradictions and infirmities in the statements of the witnesses like PW2 in his examinationin chief stated that she never identified any articles, whereas in her cross examination, she stated that on 09.06.2004 in a TIP before the Magistrate, she had identified articles of case property as belonging to them and snatched away by those offenders. As per the case of prosecution one mobile phone make Nokia was recovered from the possession of accused Aslam but at the time of examination of PW26 HC Shiv Kumar, the phone which was produced before the court was of Reliance Samsung and the said witness identified it to be the same which was recovered in his presence from accused Aslam. This creates further doubt about the story of recovery brought up by the prosecution. Further PW26 in his cross examination has stated that "I do not know whether it was a general raid or raid on some specific information. The briefing was made by the IO that he is going to somewhere and we had to follow." Here also I am surprised by the said deposition of PW26 as he is the official, who was with SI Ajay Kumar at the time of arrest of accused Salauddin (State Vs. Salauddin etc.) (SC No.73/2012) Page No.26 of pages 27 and Parvez @ Firoz but he was not aware as to for what purpose they were proceeding for. It can not be believed upon. This creates further doubt about the apprehension of accused Salauddin and Parvez @ Firoz in this case.
8. In the light of aforesaid, I have no option but to acquit the accused persons Salauddin, Parvez @ Feroz and Shahdat @ Guddu of the charges levelled against them by giving them benefit of doubt. It is ordered accordingly. Bail bond of accused Salauddin stands discharged. Accused Parvez and Shahdat be set at liberty if not required to be detained in any other case and after their release from Jail, they shall furnish their respective personal bonds. Accused persons namely Salauddin, Parvez and Shahdat are directed to furnish their fresh bail bonds in the sum of Rs.10,000/ for each with one surety of the like amount for each in terms of the order of Hon'ble High Court of Delhi and for that purpose, they will appear on 07.08.2013.
(Announced in the open (RAKESH KUMAR)
st
Court on 31 July, 2013) Addl. Sessions Judge/North East
Karkardooma Courts, Delhi
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