Delhi District Court
State vs . Shahnawaz & Ors on 28 October, 2016
IN THE COURT OF SANDEEP GARG
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (SOUTH),
NEW DELHI
F.I.R. No: 293/11
U/s 392/411/34 IPC, Section 25 of Arms Act & 103 of D.P. Act
P.S. Saket
State Vs. Shahnawaz & Ors
Date of Institution of Case : 25.01.2012
Judgment Reserved on : 28.10.2016
Date of Judgment : 28.10.2016
JUDGMENT:
(a) The serial no. of the case : 287/2/12
: (02406R0023262012)
(b) The date of commission of offence : 08.09.2011
(c) The name of complainant : Sh. Vijay Singh,
: S/o VeerBhan Chauhan,
:R/o H. No. 1254, 1st Floor,
: Gali No. 37, DDA Flat,
: Madangir, New Delhi.
(d) The name, parentage, of accused : 1. Bhuriyal : S/o Mohd. Mumtaz, : R/o H. No. 548, : Gali No. 5, : KBlock, Sangam Vihar, : New Delhi.
: 2. Shahnawaz : (alreadyexpired and :proceedings abated vide :order dated 22.03.2014) FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 1 of 28 : S/o Mohd. Shamshad, : R/o H. No. 1636A, : Gali No. 14, : Govindpuri, New Delhi.
: 3. Sumit : (alreadyexpired and :proceedings abated vide : order dated 28.10.2013) : S/o Sh. Babu Ram Gupta, : R/o HBlock, Gali No.16, : Sangam Vihar, New Delhi.
Permanent Address : As above (e) The offence complained of : U/s 392/411/34 IPC, : Section 25 of Arms Act : and 103 of D.P. Act (f) The plea of accused : Pleaded not guilty (g) The final order : Acquitted (h) The date of such order : 28.10.2016
Brief statement of the reasons for the decision:
1. The present case arose out of information recorded vide DD No. 19B dated 08.09.2011, PS Saket regarding apprehension of three pick pocketeers near Gate No. 1, Saket Metro Station. The said DD was assigned to SI Nitu Singh. Thereafter, SI Nitu Singh and Ct.
Shyambabu went to the spot i.e. gate no. 1, Saket Metro Station where they met HC Asgar Ali, Ct. Prakash and complainant Sh. Vijay Singh who handed over accused persons viz. Shahnawaz (already expired and proceedings abated vide order dated 22.03.2014), Sumit (already expired and proceedings abated vide order dated 28.10.2013) and Bhuriyal alognwith one button actuated knife and 9 mobile phones.
FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 2 of 28 One button actuated knife and two mobile phones were allegedly recovered from the possession of accused Bhuriyal, 4 mobile phones were allegedly recovered from the possession of accused Shahnawaz and three mobile phones including mobile phone of the complainant were allegedly recovered from the possession of accused Sumit. SI Nitu Singh recorded statement of complainant Sh. Vijay Singh.
2. In his complaint, complainant Sh. Vijay Singh had alleged that he is residing with his cousin in DDA flats, Madangir, New Delhi and is working as Senior Customer Support Executive in Nikon Company, Building No. 223, Okhla, PhaseIII, New Delhi and he is a permanent resident of Ward & H. No. 15/68, VPO Gharaunda, District Karnal, Haryana. On 08.09.2011, he was going to Saket Metro Station in a DTC bus which was plying on BRT corridor road. At about 10:30 AM, while he was deboarding from the bus, two boys, one from front and another from behind, held him and a third boy took out his mobile phone from his trousers. He raised an alarm and apprehended the boy who had handed over his mobile phone to another boy. Two police officials came there and over powered those boys who had held him. He apprehended the boy who had taken out his mobile phone. All the three boys were beaten by public persons who had gathered there. On inquiry, the name of boy who had taken out his mobile phone was revealed as Shahnawaz and name of another boy, to whom the mobile phone was handed over and was recovered from his left hand, was revealed as Sumit. The name of third boy was revealed as Bhuriyal.
FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 3 of 28 Upon cursory search of accused Bhuriyal, one button actuated knife was recovered from his left dub and two mobile phones were recovered from the right pocket of his trousers. Upon cursory search of the boy who had taken out his mobile, four mobile phones were recovered from the pockets of his trousers. Upon cursory search of accused Sumit, two mobile phones were recovered from pocket of his trousers. Someone called the police at 100 number after which police came at the spot. All the three accused persons were apprehended with the help of HC Asgar and Ct. Prakash and stolen mobile phones alongwith button actuated knife were recovered from their possession.
3. After receiving complaint from complainant, SI Nitu Singh prepared a sketch of button actuated knife which was recovered from the possession of accused Bhuriyal. The said knife was measured and it was found to be having total length 24 cm, blade length 11.5 cm, handle length 12.5 cm and width of blade 2.5 cm. One bronze button, on which A was engraved with red colour, was fixed in between the blade and handle with which the said knife was opened. The handle of the said knife was partly covered with wood which was affixed with bronze screws. A pullanda of the said button actuated knife was prepared by keeping it in a white cloth. The pullanda was sealed with the seal of MS and the same was seized. During the course of investigation, public persons were requested to join investigation, but none agreed and left the spot. Complainant's mobile phone make Nokia Classic bearing IMEI No. 352020/04/044368/3, FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 4 of 28 which was allegedly recovered from the possession of accused Sumit, was seized. Four mobile phones make 1. Samsung (black blue colour),
2. Huawei, 3. Nokia 5130 and 4. Nokia (touch screen) which were allegedly recovered from the possession of accused Shahnawaz, were seized separately. Two mobile phones make 1. Nokia 2310 and 2. Sony Ericsson, which were allegedly recovered from the possession of accused Bhuriyal, were seized separately. Two other mobile phones make 1. Samsung (Black colour) and 2. Kenxinda which were recovered from the possession of accused Sumit, were seized separately.
4. The accused persons were not able to give any satisfactory account for possession of other mobile phones recovered from their possession. Rukka was prepared and FIR was got registered through Ct. Shyambabu for commission of offences U/s 379/411/34 IPC, Section 25 of Arms Act and 103 of D.P. Act. Investigation was assigned to SI Nitu Singh (IO). During investigation, IO prepared a site plan, interrogated accused persons, arrested them and took them to PS Saket. Case properties were deposited in malkhana and accused persons were sent to lockup after their medical examination. On 09.09.2011, all the three accused persons were produced before concerned court which remanded them to JC. On 10.09.2011, one Sh. Manav Singh Bhandari visited PS Saket and informed the IO that on 08.09.2011, at about 9:00 AM, he was travelling in a bus plying on route no. 534 and was going from Select FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 5 of 28 City Walk Mall to Mehrauli during which his mobile phone make Nokia 5233 bearing IMEI No. 358321034935377 having SIM No. 9818225187 was stolen for which he had made a call on 100 number. IO informed Sh. Manav Singh Bhandari that his mobile phone was recovered and recorded his statement U/s 161 Cr.P.C. His mobile phone was released to him on superdari.
5. One Smt. Mamta Pahadia also visited PS Saket and informed the IO that on 08.09.2011 at about 10:15 AM, she was travelling in a bus plying on route no. 717 and was going from Khanpur to Vasant Kunj during which her mobile phone make Nokia 5130 bearing IMEI No. 358229031506812 was stolen. IO informed Smt. Mamta Paharia that her mobile phone was recovered and recorded her statement U/s 161 Cr.P.C. During scrutiny of file in Prosecution Branch, Ld. APP after going through the file, suggested that Section pertaining to robbery be added after which Section 392/398 IPC was added after discussion with SHO concerned. After conclusion of investigation, chargesheet for commission of offences punishable U/s 392/398/411/34 IPC, Section 25 of Arms Act and 103 of D.P. Act was prepared and filed in the court on 25.01.2012.
6. In compliance of Section 207 Cr.P.C., copies of charge sheet and its annexures were supplied to all the three accused persons. Thereafter, vide order dated 15.10.2012, charge U/s 392/411/34 IPC and Section 103 of D.P. Act was framed against all FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 6 of 28 three accused persons. Accused Bhuriyal was additionally charged for commission of offence punishable U/s 25 of Arms Act for possession of button actuated knife without having any license or permit. All three accused persons pleaded not guilty and claimed trial.
7. In order to substantiate its case, prosecution has examined eight witnesses. During the pendency of trial, accused Sumit and Shahnawaz expired and proceedings against them got abated vide orders dated 28.10.2013 & 22.03.2014 respectively. Statement of accused Bhuriyal, U/s 313 Cr.P.C, was recorded wherein he claimed himself to be innocent and having been falsely implicated in the case. He preferred not to adduce evidence in his defence.
Brief scrutiny of the evidence recorded in the matter is as under.
8. PW01 Sh. Vijay deposed that he was residing at Vill & PO Gharaunda, PS Gharaunda, Distt Karnal, Haryana and was working with Nikon Company. In the year 2011, he used to reside at DDA Flats, Madangir, PS Dr. Ambedkar Nagar. On 08.09.2011, he boarded a DTC bus and was going to LRS TB Hospital through BRT corridor road. When he deboarded the bus, three persons came. Out of three, two persons came in his front and third came behind him and forcibly took out his mobile phone. Two persons caught hold of him and the third one took out his mobile phone make Nokia Classic 2730. He raised an alarm and public persons gathered there. Two police FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 7 of 28 personnel also arrived there. All the three persons were taken to PS. Out of the three persons, one person was found in possession of his mobile phone. 45 more mobile phones were also recovered from the possession of those persons. One knife was also recovered from the possession of one person. His statement was recorded by police which is Ex. PW 1/A. Police seized his mobile phone vide seizure memo which is Ex. PW 1/B and it also seized other mobile phones vide seizure memos which are Ex. PW 1/C1, 1/C2 & 1/C3. IO prepared a sketch of knife which is Ex. PW 1/D and the same was seized vide seizure memo, Ex. PW 1/E. Arrest memo of all three accused persons are Ex. PW 1/F1 to Ex. PW 1/F3. Personal search memo of three accused persons are Ex. PW 1/G1 to Ex. PW 1/G3. He does not remember the particulars of the seal with which the case property was sealed. He correctly identified his mobile phone make Nokia Classic 2730 which is Ex. P1. He failed to identify button actuated knife and accused Bhuriyal. He was declared hostile by Ld. APP for the State and was crossexamined. During his crossexamination, he stated that he cannot identify the accused person as more than three years had elapsed. He cannot say if the knife shown to him was the same knife which was recovered from the possession of accused Bhuriyal. He denied that he had handed over three accused persons to the police at the spot with the help of public persons.
9. During his crossexamination, PW01 stated that he does not remember the registration number as well as route number of the FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 8 of 28 bus boarded by him. The incident took place at around 10:0010:30 AM. Neither he has the bill of his mobile phone, nor he had handed over any bill to police during investigation. IO had not asked for bill of his mobile phone. His statement was recorded by the IO at PS at around 8:00 PM. He had gone to Hospital as well as his office on that day. No police official had accompanied him to the hospital. In the evening, at about 7:00 PM, he had gone to PS and his statement was recorded. He does not remember the name of police official who rang him up in the evening nor he remembers the number from which the call was made to him. He had reached PS alone at around 8:00 PM and left from there at about 9:00 PM. He was not taken to spot when he reached at PS at about 8:00 PM. No inquiry about the incident was conducted from him thereafter. He does not remember as to whether the statement was read over to him by police official or not. He does not remember as to whether police had recorded statement of any other witnesses in his presence or not. Police had got signed several papers at PS, but he does not remember as to how many papers he had signed. Police had not sealed anything in his presence. He was seeing accused Bhuriyal for the first time in the court. He does not remember the name of police official who had reached at the spot at the time of apprehension of accused persons. Police had called some persons. However, police did not record statement of any other person. After the day of incident, he never visited PS. He denied that police had recorded his statement on its own.
FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 9 of 28
10. PW02 Sh. Manav Singh Bhandari deposed that at the time of incident, he was residing at J701, Kalibari Marg, Mandir Marg, New Delhi01. On 08.09.2011, he was going to his home in a bus plying on route no. 534 via Select City Walk Mall to Mehrauli. At about 09:00 AM, when he reached at Max Hospital, he came to know that his mobile phone make Nokia 5233, having no. 9818225187, was lost. He called at 100 number. On 10.09.2011, he went to PS Saket and had given his statement. The computerized copy of invoice dated 18.04.2010 is mark 'M5233'. His mobile was released on superdari which he has brought in the court. The photographs of his mobile phone are Ex. P1 to P4.
11. During his crossexamination, PW02 admitted that the superdarinama Mark 'X' does not bear his signatures at point A. IO did not ask him to sign upon the superdarinama. He had attended his office after making call on 100 number and visited PS Saket on the next day. He admitted that recovery of mobile phone was not effected in his presence. He had given an application to police at PS Saket in the evening on the next day and his statement was also recorded. No copy of his written complaint was handed over to him by police. He cannot tell the registration number of the bus in which he was traveling. He denied that he was not traveling in the said bus and therefore, he cannot tell its registration number. He denied that his mobile phone was not stolen in the said bus or that he had given his statement at the behest of police. He had visited PS Saket about two FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 10 of 28 times.
12. PW03 HC Asgar Ali deposed that on 08.09.2011, he alongwith Ct. Prakash were on patrolling duty in the area of PS Saket. At around 10:30 AM, when they reached near Saket Metro Station, MB Road, they heard a loud noise of public persons. Public persons had gathered there. They reached there and met complainant Sh. Vijay Singh who produced accused Shahnawaz (since expired) before them. Complainant told them that accused Shahnawaz had snatched his mobile phone from his pocket and the same was handed over to his associate namely Sumit (since expired) who was also present there. He apprehended accused Sumit. On cursory search of accused Sumit, the said mobile phone make Nokia 2730 (black & silver colour) was recovered from his possession which was identified by complainant at the spot. Two other mobile phones make Nokia and Chinese were also recovered from the possession of accused Sumit. Four mobile phones were recovered from the possession of accused Shahnawaz. Third accused namely Bhuriyal was also apprehended by the public persons at the spot.
13. PW03 HC Asgar Ali further deposed that public persons produced accused Bhuriyal (correctly identified in court) before them. Complainant told them that accused Bhuriyal was also involved in the said incident. On cursory search of accused Bhuriyal, one button actuated knife and two mobile phones were recovered from his FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 11 of 28 possession. Someone called the PCR at 100 number. In the meantime, SI Nitu Singh and Ct. Shyam Babu came at the spot. He narrated the above said facts to them. He also produced all the three accused persons and the recovered articles before SI Neetu Singh. IO SI Neetu Singh prepared a sketch of the said knife which is already Ex. PW 1/D. Measurement of the said knife is mentioned in seizure memo. SI Neetu Singh seized the mobile phones which were recovered from accused Bhuriyal vide seizure memo which is already Ex PW 1/C1. SI Neetu also seized the said mobile phones which were recovered from the possession of accused Sumit and Shahnawaz which are already Ex. PW 1/C2, PW 1/C3 & Ex. PW 1/B. IO SI Nitu Singh prepared a pullanda of the said button actuated knife, sealed it with the seal of MS and seized the same vide seizure memo which is already Ex. PW 1/E. SI Nitu Singh recorded statement of complainant Sh. Vijay Singh which is already Ex PW 1/A and made endorsement on the same. The rukka was handed over to Ct. Shyam Babu for registration of FIR who got the FIR registered.
14. PW03 HC Asgar Ali further deposed that after registration of FIR, Ct. Shyam Babu came back at the spot alongwith copy of FIR and original rukka and handed over the same to IO SI Nitu Singh who prepared a site plan at the instance of complainant. After interrogation, IO arrested and carried out personal searches of all the three accused persons vide memos which are already Ex. PW 1/F1 to Ex. PW 1/F3 and Ex. PW 1/G1 to Ex. PW 1/G3. They took the accused persons to FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 12 of 28 the PS and the case properties were deposited in malkhana. IO recorded his statement. He correctly identified the button actuated knife in court which was recovered from accused Bhuriyal, which is Ex. P5. He also identified mobile phone make Nokia Classic 2730 in court which belongs to complainant, which is already Ex. P1. He also identified two mobile phones make Nokia 2310 and Sony Ericcson which were recovered from the possession of accused Bhuriyal, which are Ex. P6 (Colly). He also identified four mobile phones make Samsung, Huawei, Samsung (dual SIM), Kenxinda (dual SIM) which were recovered from the possession of accused Shahnawaz and Sumit which are Ex. P7 (Colly).
15. During his crossexamination, PW03 HC Asgar Ali stated that he does not remember the number of DD entry which was made before his departure from police station for patrolling. He was on foot on the day of incident as the distance between PS and the spot is very little. The distance between PS and spot is at around 1 KM. He admitted that 810 public persons were present there. Some public person had called PCR and SI Nitu Sihgh came at the spot. SI Neetu Singh reached at the spot after 1015 minutes of his reaching there. He had not informed his senior officials regarding the incident. Accused Bhuriyal was already apprehended by public persons. Ct. Shyam Babu had gone to PS with rukka at about 1:30 PM and returned back after around 1 - 1 ½ hours. IO had requested many public persons to join the investigation, but none of them agreed and FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 13 of 28 left the place expressing their own reasons. IO recorded his statement at PS. He does not remember as to when they had finally left the spot. He denied that he had not visited the spot or that nothing was recovered from the possession of accused Bhuriyal. He denied that accused Bhuriyal had been falsely implicated by him in connivance with IO.
16. PW04 Ms. Mamta Pahariya deposed that on 01.09.2011, she took a bus from Saidullajab plying on route no. 717 and was going towards her college i.e. JIMS, Vasant Kunj. At around 10:0011:00 AM, when the said bus reached at Saket Metro Station, she realized that her mobile phone make Nokia 5130 was missing. She went to her college and shared the said facts with her friend. She called on her mobile phone from the mobile phone of her friend and police officials picked up her call who informed that her mobile phone was recovered by them. She went to PS. Her brother also reached at PS. She identified her mobile phone at the PS. Her father got the said phone released on superdari vide superdarinama which is Ex. PW 4/A. She correctly identified her mobile phone in six photographs alongwith their negatives which are Ex. PW 4/B (Colly).
17. During her crossexamination, PW04 stated that she does not remember the registration of the bus boarded by her. She did not call the police at 100 number. She did not give any written complaint to police officials. However, she went at the PS and narrated the above FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 14 of 28 said facts to police officials. On the same day i.e. 08.09.2011, she had gone to PS. Her mobile phone was in the PS and twothree thieves were also present there and they were carrying 34 mobile phones, purse and knife. Police officials told her that the said mobile phones, purse and knife were recovered from the said persons. Police officials further asked her as to whether she could identify any of the said persons to which she had replied that there was a rush in the bus and therefore, she cannot identify any of them. Police officials recorded her statement on the same day i.e. 08.09.2011. She never visited at PS after 08.09.2011. She remained at PS for about 12 hours. She does not remember the exact time, when she visited PS Saket. After that, police officials did not record her statement.
18. PW05 Ct. Prakash Chand deposed that on 08.09.2011, he alongwith HC Asgar Ali were on duty to catch pickpockets in DTC buses. On that day at around 10:30 AM, they were present near Saket Metro station on the pavement. One DTC bus came and stopped there. They heard a loud noise from the said bus and entered inside the bus. One public person had apprehended a thief / pickpocket inside the bus. Two other thieves / pickpockets were also present inside the said bus. They apprehended the said two pickpockets with the help of public persons. On inquiry, the names of the said persons were revealed as Shahnawaj, Sumit and Bhuriyal. Accused Bhuriyal was carrying a mobile phone in his right hand and the said mobile phone belonged to complainant Sh. Vijay. HC Asgar Ali recovered the FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 15 of 28 said mobile phone from the possession of accused Bhurial. After refreshing memory with permission of court, he stated that the said mobile phone was recovered from the possession of accused Sumit. On cursory search of accused Bhurial, one button actuated knife was recovered from the right side pocket of his trousers and two mobile phones were also recovered from his possession. On cursory search of accused Shahnawaz, who had taken the mobile phone of complainant Vijay, four mobile phones were recovered from his possession. On cursory search of accused Sumit, two mobile phones were recovered from his possession.
19. PW05 Ct. Prakash Chand further deposed that SI Nitu Singh and Ct. Shyam Babu came at the spot. They handed over the recovered case properties alongwith accused persons to them. IO SI Nitu Singh recorded statement of complainant Sh. Vijay and prepared a sketch of the said button actuated knife which is already Ex. PW 1/D. The total length of the said knife was around 24 cm, blade was of 11.5 cm, width of the blade was around 2.5 cm and length of the handle was about 12.5 cm. IO prepared a pullanda of the knife, sealed it with the seal of 'MS' and seized the same vide seizure which is already Ex. PW 1/E. IO seized the mobile phone of complainant Sh. Vijay, which was recovered from the possession of accused Sumit vide seizure memo which is already Ex. PW 1/B. IO seized two mobile phones, which were recovered from the possession of accused Sumit vide seizure memo which is already Ex. PW 1/C3. IO also seized four FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 16 of 28 mobile phones, which were recovered from the possession of accused Shahnawaz vide seizure memo which is already Ex. PW 1/C2. IO also seized two mobile phones, which were recovered from the possession of accused Bhuriyal vide seizure memo already Ex. PW 1/C1. IO made an endorsement on the complaint of complainant Sh. Vijay and the rukka was handed over to Ct. Shyam Babu who got the FIR registered. After registration of FIR, Ct. Shyam Babu returned at the spot alongwith original rukka and the copy of the FIR which were handed over to the IO who prepared a site plan at the instance of the complainant. After interrogation, IO arrested and carried out personal searches of accused persons vide memos which are already Ex. PW 1/F1 to Ex. PW 1/F3 and Ex. PW 1/G1 to Ex. PW 1/G3 respectively.
20. PW05 Ct. Prakash Chand further deposed that they took the accused persons and the case properties to PS Saket where case properties were deposited in malkhana and the accused persons were sent to the lockup after their medical examination. IO had recorded his statement. He correctly identified accused Bhuriyal in court by stating that one button actuated knife and two mobile phones were recovered from his possession. He correctly identified the button actuated knife in court which is already Ex. P5 as recovered from accused Bhuriyal. He correctly identified two mobile phones, make Nokia 2310 and Sony Ericcson in court as recovered from the possession of accused Bhuriyal which are Ex. P6 (Colly). He also identified two mobile phones, make Samsung (black & blue colour) and Huawei in court as FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 17 of 28 recovered from the possession of accused Shahnawaz which are already Ex. P7 (Colly). He also correctly identified one mobile phone, make Nokia Classic 2730 as recovered from the possession of accused Sumit and belonging to complainant Sh. Vijay which is already Ex. P1. He also identified two other mobile phones make Samsung dual SIM and Kenxinda as recovered from the possession of accused Sumit which are already Ex. P8 (Colly).
21. PW06 Ct. Shyam Babu deposed that on 08.09.2011, he was on emergency duty from 08:00 AM to 05:00 PM. On that day, SI Nitu Singh received DD No. 19B dated 08.09.2011, PS Saket regarding apprehension of snatchers at Saket Metro Station. He alongwith SI Nitu Singh went at the spot where they met HC Asgar Ali, Ct. Prakash and complainant Sh. Vijay who produced three accused persons before them. They also handed over the recovered case properties, i.e. one button actuated knife and mobile phones before the IO/SI Nitu Singh. On inquiry, the names of the said three accused persons were revealed as Bhuriyal, Sumit and Shahnawaz. HC Asgar Ali told them that one button actuated knife and two mobile phones were recovered from the possession of accused Bhuriyal; four mobile phones were recovered from accused Shahnawaz and three mobile phones including the mobile phone of the complainant, were recovered from the possession of accused Sumit.
22. PW06 Ct. Shyam Babu further deposed that IO SI Nitu FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 18 of 28 Singh recorded statement of complainant Sh. Vijay and prepared a sketch of the said button actuated knife which is already Ex. PW1/D. The total length of the said knife was around 24 cms, blade was of 11.5 cms, width of the blade was around 2.5 cms and length of the handle was about 12.5 cms. IO prepared a pullanda of the said knife, sealed it with the seal of 'MS' and seized the same vide seizure memo which is already Ex. PW1/E. IO seized the mobile phone of complainant Vijay, which was recovered from the possession of accused Sumit vide seizure memo which is already Ex. PW1/B. IO seized two other mobile phones, which were recovered from the possession of accused Sumit, vide seizure memo which is already Ex. PW1/C3. IO seized four mobile phones, recovered from the possession of accused Shahnawaz, vide seizure memo which is already Ex. PW1/C2. IO seized two mobile phones, which were recovered from the possession of accused Bhuriyal, vide seizure memo which is already Ex. PW1/C1. IO made an endorsement on complainant of complainant Sh. Vijay and the rukka was handed over to him for registration of the FIR. He went to PS and got the FIR registered.
23. PW06 Ct. Shyam Babu further deposed that after registration of the FIR, he returned at the spot alongwith original rukka and copy of FIR which were handed over to the IO who prepared a site plan at the instance of the complainant. After interrogation, IO arrested and carried out personal searches of all the three accused persons FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 19 of 28 vide memos which are already Ex. PW1/F1 to Ex. PW1/F3 and Ex. PW1/G1 to Ex. PW1G3 respectively. They took accused persons and case properties at PS where case properties were deposited in malkhana and accused persons were sent to lock up after their medical examination.
24. PW06 Ct. Shyam Babu further deposed that IO had recorded his statement. He correctly identified accused Bhuriyal in court stating that one button actuated knife and two mobile phones were recovered from his possession. He correctly identified the button actuated knife in court which is already Ex. P5 as recovered from accused Bhuriyal. He correctly identified two mobile phones, make Nokia 2310 and Sony Ericsson in court as recovered from the possession of accused Bhuriyal which are Ex. P6 (Colly). He also identified two mobile phones, make Samsung (black & blue colour) and Huawei in court as recovered from the possession of accused Shahnawaz which are already Ex. P7 (Colly). He also correctly identified one mobile phone, make Nokia Classic 2730 as recovered from the possession of accused Sumit and belonging to complainant Sh. Vijay which is already Ex. P1. He also identified two mobile phones make Samsung dual SIM and Kenxinda as recovered from the possession of accused Sumit which are Ex. P8 (Colly).
25. PW07 HC Dinesh deposed that on 08.09.2011, he was posted at PS Saket as Duty Officer from 8:00 AM to 4:00 PM. At about FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 20 of 28 1:40 PM, he received a rukka from Ct. Shyam Babu sent by SI Nitu Singh on the basis of which he registered the present FIR. Computerized copy of the same is Ex. PW 7/A. He made an endorsement on the rukka which is Ex. PW 7/B after which, he handed over computerized copy of FIR and original rukka to Ct. Shyam Babu for being handed over to SI Nitu Singh.
26. PW08 IO SI Nitu Singh deposed that on 08.09.2011, he alongwith Ct. Shyam Babu were on emergency duty from 8:00 AM to 8:00 PM. On that day at around 11:00 AM, homeguard Ct. Karambir handed over DD No. 19B dated 08.09.2011, PS Saket regarding apprehension of three pick pocketeers at Saket Metro Station. He alongwith Ct. Shyam Babu went at the spot where they met HC Asgar Ali, Ct. Prakash and complainant Sh. Vijay Singh who produced three persons before him and also handed over the recovered case properties i.e. one button actuated knife and nine mobile phones including the mobile phone of complainant. He recorded statement of the complainant which is already Ex. PW 1/A and attested his signatures at point B. On inquiry, the name of said three persons were revealed as Shahnawaz, Sumit and Bhuriyal. He correctly identified accused Bhuriyal in court stating that he was handed over to him by HC Asgar Ali and Ct. Prakash. HC Asgar Ali told him that one button actuated knife and two mobile phones were recovered from his possession; four mobile phones were recovered from accused Shahnawaz and 3 mobile phones including the phone of complainant FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 21 of 28 were recovered from the possession of accused Sumit. He prepared a sketch of the button actuated knife which is already Ex. PW 1/D. The total length of the said knife was of 24 cm, blade was of 11.5 cm, width of blade was around 2.5 cm and length of the handle was of 12.5 cm. A mark of 'A' was engraved on the handle of the said button actuated knife. He prepared a pullanda of the said button actuated knife, sealed it with the seal of 'MS' and seized the same vide seizure memo which is already Ex. PW 1/A.
27. PW08 IO SI Nitu Singh further deposed that he seized mobile phone of the complainant make Nokia, which was recovered from the possession of accused Sumit, vide seizure memo which is already Ex. PW 1/B. He also seized two mobile phones, which were recovered from the possession of accused Sumit, vide seizure memo which is already Ex. PW 1/C3. He seized four mobile phones which were recovered from the possession of accused Shahnawaz, vide seizure memo which is already Ex. PW 1/C2. He seized two mobile phones, which were recovered from the possession of accused Bhuriyal, vide seizure memo which is already Ex. PW 1/C1. He made endorsement on the complaint of complainant Sh. Vijay Singh which is Ex. PW 8/A and the rukka was handed over to Ct. Shyam Babu who got the FIR registered. After registration of FIR, Ct. Shyam Babu returned at the spot alongwith original rukka and copy of FIR which were handed over to him. He mentioned the FIR number on the seizure memos which were prepared before registration of FIR. He FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 22 of 28 prepared a site plan at the instance of complainant which is Ex. PW 8/B. He interrogated all the three accused persons, arrested them and carried out their personal searches vide memos which are already Ex. PW 1/F1 to Ex. PW 1/F3 and Ex. PW 1/G1 to Ex. PW 1/G3 respectively.
28. PW08 IO SI Nitu Singh further deposed that he recorded supplementary statement of complainant who left the spot thereafter. They took the accused persons at AIIMS Hospital where they were medically examined. After medical examination, they returned to the PS alongwith accused persons and the case properties. The case properties were deposited in malkhana and accused persons were sent to lockup. He recorded statements of recovery witnesses and Ct. Shyam Babu. On next day, the accused persons were produced before the concerned court and they were remanded to JC. He recorded statement of Ms. Mamta Pahadia and Manav Singh during investigation at PS Saket who told him that their mobile phones were also stolen on 08.09.2011. He showed the seizure memos of the mobile phones to them who identified their mobile phones in seizure memos on the basis of IMEI numbers.
29. PW08 IO SI Nitu Singh further deposed that he prepared a challan and filed it in the court. He correctly identified the button actuated knife in court which was recovered from the possession of accused Bhuriyal which is already Ex. P5. He also identified two FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 23 of 28 mobile phones make Nokia 2310 and Sony Ericsson which were recovered from the possession of accused Bhuriyal which are already Ex. P6 (Colly). He identified two mobile phones make Samsung (black & blue colour) and Huawei which were recovered from the possession of accused Shahnawaz which are already Ex. P7 (Colly). He identified one mobile phone make Nokia classic 2730, belonging to complainant Vijay Singh, which was recovered from the possession of accused Sumit which is already Ex. P1. He also identified two mobile phones make Samsung dual SIM and Kenxinda which were recovered from the possession of accused Sumit which are already Ex. P8 (Colly).
30. During his crossexamination, PW08 stated that he was present outside PS Saket when he received DD No. 19B dated 08.09.2011, PS Saket. Ct. Shyam Babu was accompanying him at that time. No departure entry was made by him. He did not give any information to the senior officials regarding receiving of said DD. He reached at the spot at about 11:15 AM on a private motorcycle, but he does not remember its registration number. Passersby were available at the spot. No public persons / independent person except the complainant was present at the spot. Accused persons were also present at the spot. No notice was given to the passersby who refused to join investigation. Firstly, he recorded the statement of complainant and thereafter, he prepared sketch memo and seizure memos of the case properties. The rukka was handed over to Ct. Shyam Babu at around 1:30 PM who returned to the spot at around 2:15 PM alongwith FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 24 of 28 original rukka and copy of FIR. He mentioned the FIR number on the seizure memos and sketch memo which were prepared before registration of FIR after receiving the copy of FIR at the spot.
31. During his crossexamination, PW08 stated that he recorded supplementary statement of the complainant at the spot at around 4:00 PM. He did not record the statement of other witnesses at the spot. Complainant left the spot at around 4:00 PM and they also finally left the spot at around 4:00 PM. He admitted that no recovery was effected in his presence. He had mentioned the name of Smt. Mamta Pahadia and Sh. Manav in the case diary when they visited PS Saket. They came at PS at around 10:00 - 11:00 AM. He admitted that mobile phones were not sealed by him at the spot. He kept his seal and deposited the same in malkhana at the time of depositing the case property. The distance between spot and PS was around 2.5 KM. He denied that he never visited the spot or that the case property had been falsely planted upon the accused persons at the instance of the complainant or that the accused persons were lifted from their respective houses and were falsely implicated in the present case.
32. Accused Bhuriyal was called upon to admit or deny the documents relied upon by the prosecution. He admitted copy of notification issued by Under Secretary (Home), NCT of Delhi dated 17.02.1978 and copy of Register no. 19 U/s 294 Cr.P.C. on 22.09.2016 which were exhibited as Ex. A1 & A2 respectively.
FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 25 of 28
33. The court has heard the arguments advanced by Ld. defence counsel as well as Ld. Substitute APP appearing on behalf of the State and has perused the record with their able assistance.
34. It has been emphatically contended by Ld. defence counsel for accused Bhuriyal that admittedly, complainant / PW01 Sh. Vijay Singh did not identify the accused Bhuriyal and the button actuated knife alleged to have been recovered from his possession. During his crossexamination, he has stated that his statement was recorded at 8:00 PM at the police station. He was not taken to the spot from the police station. No inquiry about the incident was conducted from him thereafter. Police had got several papers signed at the police station, but he does not remember their number. Nothing was sealed by the police in his presence. He is seeing the accused in the court for the first time. This falsifies the entire prosecution story.
35. There are material contradictions in the testimonies of prosecution witnesses. While PW03 HC Asgar Ali has deposed that the distance between the spot and the PS was about 1 KM, PW08 IO SI Nitu Singh has deposed that the distance was around 2.5 KM. While IO SI Nitu Singh has deposed that he had recorded supplementary statement of complainant at about 4:00 PM, the complainant has deposed that his statement was recorded only once between 8:009:00 PM. This establishes the falsity of the prosecution case and the fact FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 26 of 28 that accused had been falsely implicated in the present case. He deserves to be acquitted of the charges leveled against him.
36. Per contra, it is contended by Ld. substitute APP for the State that the complainant had named accused Bhuriyal in his complaint Ex. PW1/A. Complainant had signed the seizure memos Ex. PW1/E, Ex. PW1/C1, Ex. PW1/C2, Ex. PW1/C3, Ex. PW1/B, sketch of knife Ex. PW1/D, arrest memo Ex. PW1/F2 and personal search memo PW1/G2 as per which the recovery was effected from the possession of accused Bhuriyal in his presence. The contradictions regarding the distance between the spot and PS are insignificant which do not have any bearing on the merits of the case. The prosecution has been successful in bringing home guilt of the accused and therefore, he should be convicted for commission of offence punishable u/s 392/34 IPC, 25 Arms Act and 103 of the DP Act.
37. The court is of the considered view that the complainant / PW01 Sh. Vijay Singh did not identify the accused Bhuriyal and the button actuated knife alleged to have been recovered from his possession. During his crossexamination, he has stated that his statement was recorded at 8:00 PM at the police station. He was not taken to the spot from the police station. No inquiry about the incident was conducted from him thereafter. Police had got several papers signed at the police station, but he does not remember their number. Nothing was sealed by the police in his presence. He is seeing the FIR No. 293/11, PS Saket State Vs. Shahnawaz & Ors 27 of 28 accused in the court for the first time.
38. Moreover, there are material contradictions in the testimonies of prosecution witnesses. While IO SI Nitu Singh has deposed that he had recorded supplementary statement of complainant at about 4:00 PM, the complainant has deposed that his statement was recorded only once between 8:009:00 PM. Therefore, the court holds that the prosecution has not been able to establish guilt of accused Bhuriyal beyond a reasonable doubt. Benefit of doubt is given to accused Bhuriyal and he is acquitted of the charges levelled against him. He is directed to furnish bail bonds in terms of Section 437A Cr.P.C. forthwith. Original documents, if any, be returned to its rightful owner after cancellation of endorsement, if any.
File be consigned to Record Room.
Announced in the open (Sandeep Garg)
court on 28.10.2016 ACMM (South),
New Delhi.
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