Delhi District Court
State vs Fazlu on 30 March, 2015
IN THE COURT OF SH AJAY GUPTA: ADDITIONAL SESSION
JUDGE 4 (SHAHDARA), KARKARDOOMA COURTS , DELHI
Sessions case No.: 55/14
U.I.D. No .: 02404R0385852006
F.I.R No : 340/06
P. S : Gokalpuri
U/s : 392/395/412 IPC
In the matter of:
State
versus
1.Fazlu S/o Jamshed R/o C03 St. No. 16, Old Mustafabad, Delhi.
2. Noor Alam @ Noora S/o Nafees R/o Mohalla, Fatihabad, Chandpur, Distt. Bijnor, U.P.
3. Shamshad S/o Babu Khan R/o Mohalla Jamiapura, Chandpur, Distt. Bijnor, U.P.
4. Sahid S/o Yunus R/o Mohalla Shaha Chandan, Chandpur, Distt. Bijnor, U.P F.I.R No : 340/06 P. S : Gokalpuri State vs. Fazlu etc. 1/26
5. Akram S/o Aslam R/o Mohalla Muftisarai, Chandanpur Distt. Bijnor, U.P.
6. Arshad S/o Israr R/o Village Bachrau, Distt. Amroha, U.P.
7. Roshan w/o Furkan R/o Jakir Colony, Rasul Nagar, Meerut, U.P. ...... Accused Date of committal to session court : 15.09.2006 Date of argument : 09.03.2015 Date of order : 30.03.2015 Final Order : Accused Arshad and Noor Alam @ Noora convicted u/s 174 A IPC.
J U D G M E N T (1) Brief facts of the prosecution case are that the complainant Neeraj Gaur was running a shop of electrical goods in the name of Dixit Enterprises at D1/1, Nehru Vihar, Karawal Nagar Road, Delhi. On 15.05.2006 at about 8:15 p.m, the complainant was present at his shop alongwith his employees Sachin and Prashant and at that time four boys aged about 2530 years, having katta in their hands, entered in the shop. Two of them made his employees Sachin and Prashant sit in the corner of the shop by threatening them with the katta and the other two accused persons stood before him having katta in their hands.
F.I.R No : 340/06
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One of them was keeping a watch outside the shop and the other one asked the complainant to hand over the entire money otherwise he would shoot him. Complainant gave him the entire money which was about Rs. 35,000/. The said accused also robbed a gold chain and two gold rings from the complainant. At that time Mr. Pankaj Tiwari, the salesman of the complainant, came to his shop. The accused persons overpowered him and snatched his mobile phone and Rs. 4000/ from him. While leaving the spot, the accused persons also took away the mobile phone i.e. Nokia with the SIM No. 9891406165 and reliance phone no. 32996165 of the complainant. While leaving, the accused persons waved the katta in the air and threatened the complainant not to come out of the shop. After the accused persons left the spot, complainant came to know that the accused persons also robbed the mobile phone Nokia3200 (No. 9891358163) from his employee Prashant.
(2) On the aforesaid complaint, an FIR was registered u/s 392/397/34 IPC. During investigation the statement of witness Pankaj Tiwari was recorded who stated that apart from four robbers who had entered the shop; their other two associates were standing outside the shop having katta in their hands and keeping a watch. Thus, subsequently section 395 IPC was invoked in the present case. On 23.05.06 accused Shamshad, Akram and Shahid were arrested in the FIR case No. 352/06, u/s 307/186/353/34 IPC, PS Gokalpuri and during investigation of this case, the accused Shamshad, Akram and Shahid made a disclosure statement about their involvement in the present case alongwith the accused persons Fazloo, Noor Alam, Arshad and Roshan.
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(3) During investigation all the seven accused persons were arrested. No recovery was effected from accused Fazloo, Noor Alam, Akram, Shamshad, Arshad and Shahid. The accused Fazloo, Noor Alam, Akram, Arshad and Shahid refused to get their TIP conducted. The TIP of accused Shamshad was conducted but the same remained unsuccessful as complainant could not identify him during TIP. These accused persons have been charge sheeted as they were allegedly identified by the complainant and other witnesses in the court, on 04.07.2006 when the accused persons were produced for their JC remand. The role of the accused persons has not been specified in the charge sheet and the specific charges against the accused persons could only be ascertained after perusing the statement of the witness Mr. Pankaj Tiwari made u/s 161 Crl. P.C and the disclosure statements of the accused persons. According to the statement of Mr. Pankaj Tiwari, the accused Fazlu, Noor Alam, Akram, and Arshad entered the shop of the complainant and accused Shamshad and Shahid were standing outside to give cover to the other four accused who entered the shop to rob the complainant. The accused Roshan has been charge sheeted as allegedly a cash amount of Rs. 19000/ alongwith some visiting cards and receipts ( pertaining to the shop of the complainant) were recovered from the house of accused Roshan.
(4) On completion of investigation a charge sheet u/s 392/397/395/412/506/341/34 IPC was filed and after compliance of section 207 IPC the case was committed to the Sessions Court.
(5) Vide order dt. 12.11.2007 a charge U/s 397/395/506(2)/34 IPC was framed against accused Fazloo, Noor Alam, Akram, Shamshad, Arshad and Shahid and a separate charge u/s 412 F.I.R No : 340/06 P. S : Gokalpuri State vs. Fazlu etc. 4/26 IPC was framed against accused Roshan. During trial the accused Noor Alam and Arshad stopped appearing and they were declared Proclaimed Offenders, thus, an additional charge u/s 174 A IPC was framed against them. The accused persons did not plead guilty and claimed trial.
(6) Points which emerged for determination in this case are:
i) Whether on 15.05.2006 at about 08:15 pm at M/s Dixit Enterprises, the shop of complainant situated at D1/1, Nehru Vihar, Karawal Nagar Road, Delhi, the accused Fazloo, Noor Alam, Akram, Shamshad, Arshad and Shahid committed dacoity by using deadly weapon i.e. Katta and looted cash amount of Rs.35,000/, a gold chain, two gold rings, Nokia phone with the SIM No. 9891406165 and Reliance phone no.
32996165 of the complainant and cash amount of Rs.4,000/ and mobile phone of Mr. Pankaj Tiwari, the salesman of complainant and also the mobile phone make Nokia3200 No. 9891358163 from the Mr. Prashant, the employee of complainant?
ii) Whether on the said date, time and place, in order to commit the dacoity the four accused persons namely Fazloo, Noor Alam, Akram and Arshad entered the shop while the other two accused F.I.R No : 340/06 P. S : Gokalpuri State vs. Fazlu etc. 5/26 persons Shamshad and Shahid remained present outside to give cover to the other four accused who entered the shop?
iii) Whether on 23.05.2006, a cash amount of Rs. 19000/ alongwith some visiting cards and receipts pertaining to the shop of complainant were recovered from the house of the accused Roshan?
iv) Whether accused Arshad deliberately absconded and therefore, he was rightly declared a proclaimed offender vide order dt.30.03.2009 and therefore, he is guilty of commission of 174 A IPC.
v) Whether accused Noor Alam deliberately absconded and therefore, he was rightly declared a proclaimed offender vide order dt.13.11.2009 and therefore, he is guilty of commission of 174 A IPC?
(7) In order to establish accusations against the accused persons, prosecution examined sixteen witnesses. Brief outline of the testimonies of the prosecution witnesses is as under: (7.1.) Sh. Neeraj Gaur (PW1) is the complainant of the present case. The PW1 was examined on two occasions. Firstly he was examined on 01.11.2010 when only five accused persons i.e. Fazloo, Akram, Shamshad, Shahid and Roshan were facing trial and other two accused namely F.I.R No : 340/06 P. S : Gokalpuri State vs. Fazlu etc. 6/26 Arshad and Noor Alam were running proclaimed offenders. PW1 was again examined on 04.04.2012 after the arrest of accused Arshad and Noor Alam. PW1 deposed on 01.11.2010 that on 15.05.2006, he was present at his shop i.e. Dikshit Enterprised, situated at: D1/1, Nehru Vihar, Karawal Nagar Road, Delhi alongwith his employees Sachin and Prashant. At about 88.15 pm four boys came to his shop, two were armed with Katta and the other two were armed with pistol. Two of them apprehended his employees and rest of the two apprehended him. On the gun point they told the complainant to handover the cash otherwise they would kill him. The complainant handed over Rs.35000/ to them. The said boys also snatched his gold chain and two gold rings weighing 50 gms. Besides, they also snatched the Nokia mobile phone and the Reliance landline cordless phone of complainant. At that point of time Mr. Pankaj Tiwari, the supplier, came to the shop of complainant. The accused persons also apprehended him on the gun point and snatched his mobile phone and Rs.4000/ from him. Accused persons also snatched the mobile phone from Mr. Prashant, the employee of complainant. After that the accused persons ran away from the spot. The complainant chased them and they fired upon him but he saved himself. Complainant called the police at 100 number. Police reached the spot and IO recorded his statement EXPW1/A. PW1 further deposed that he went to Tihar Jail to identify the accused persons but all other accused persons except accused Shamshad refused to participate in the TIP proceedings. He deposed that he could not identify the accused Shamshad during TIP as he got confused. The TIP proceedings have been placed on record as EXPW1/B. The seized currency notes of Rs. 19000/ alongwith 7 visiting cards and three receipts of Dixit F.I.R No : 340/06 P. S : Gokalpuri State vs. Fazlu etc. 7/26 Enterprises, one receipt of Shriram Home Appliances and one of Shivam Traders were put to the complainant for identification which complainant identified as the same currency notes and visiting cards and receipts which were robbed by the accused persons from his shop. The currency notes, visiting cards and receipts were collectively exhibited as EXPW1/Article1.
On 01.11.2010, five accused persons were facing trail and complainant identified the accused Fazlu, Akram, Shamshad and Shahid to be the same accuses persons who entered his shop. PW1 also deposed that he did not identify the accused persons during the investigation.
Ld. Addl. P.P. also put a leading question to the complainant in regard to the involvement of other two accused persons. In response to the leading question, complainant admitted that two more accused persons armed with katta were present outside his shop to guard the other accused persons who entered into his shop. However, complainant denied that on 04.07.2006, he had identified the accused persons namely Fazlu, Noor Alam, Akram and Arshad and gave a supplementary statement to the IO in this regard.
After arrest of accused Arshad and Noor Alam, the PW1 was again examined on 04.04.2012. On the second occasion also the complainant deposed more or less on the same lines of his earlier deposition. When complainant was asked to identify the accused persons, the complainant initially pointed out towards the accused Shahid as Arshad but again pointed out towards the accused Arshad and Noor Alam as the same persons who committed the robbery at his shop alongwith other accused persons.
F.I.R No : 340/06
P. S : Gokalpuri State vs. Fazlu etc. 8/26
(8) Pankaj Tiwari (PW2) is the salesman who visited the shop of the complainant at the time of occurrence of offence. He deposed that on 15.05.2006 at about 8.30 p.m. he visited the shop of Dixit Enterprises to take the payment of electrical goods. When he entered the shop he saw that two boys were standing near the counter and one of them apprehended him on the point of katta and snatched his Nokia mobile phone having SIM of Tata Indicom and Rs. 4000/ from him. Mr. Neeraj, the owner of the shop was sitting at the counter of the shop and his two employees were also present near the counter. He saw 34 accused persons running away from the shop. The accused persons threatened him not to come out of the shop and follow them otherwise they will kill him. On the point of identification, PW2 stated that he can not identify the accused persons as the incident took place in the spur of movement. However, he stated that one of the accused persons was fat and having bandaid on his face. After making the aforesaid statement, PW2 stated that he did not know anything else about the case.
Since this witness did not support the prosecution case on the point of identification of the accused persons, he was cross examined by Ld. Addl. P.P, but of no avail. PW2 denied that he gave a statement to the police that when he visited the shop of the complainant, two accused persons were standing outside the shop having katta in their hands and four accused persons were present inside the shop. He also denied that on 04.07.2006 he identified all the six accused persons namely Shamshad, Fazloo, Noor Alam, Shahid, Akram and Arshad and gave a supplementary statement to the IO EX PW 2/PB. He also denied that he made a statement to the IO that accused Shamshad and Shahid were present outside the shop and the accused Noor Alam, Fazloo, Akram and Arshad were present inside the shop.
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(9) Prashant Sharma (PW3) is the employee of the complainant. He deposed that on 15.06.06 at about 8/8.15 a.m. he was working as a salesman and present at the shop of the complainant. At that time 56 boys entered into the shop and on the gun point they made him sit in the corner of the shop. The said boys snatched his mobile phone make Nokia 3200. The said boys removed Rs. 40000/50000/ from the locker of the shop and also snatched two gold rings and a gold chain from the complainant alongwith his two mobile phones. Thereafter, the accused persons ran away from there. The owner of the shop called the police and police recorded the statement of Mr. Neeraj and got registered the FIR. Police also recorded his statement. On the point of identification, PW3 stated that he is unable to identify the assailants as he could not see their faces due to fear.
Since this witness did not support the prosecution case on the point of identification of the accused persons, he was cross examined by Ld. Addl. P.P, but of no avail.
(10)Mr Sachin (PW12) is another employee of the complainant who was also present on the shop on the day of incident. PW12 also deposed more or less on the deposition of PW3. PW12 stated that he is unable to identify the assailants as he could not see their faces due to fear.
(11)Ct. Desh Raj (PW4) is the member of investigating team. On receipt of DD No. 26 A, he visited the spot alongwith IO SI Vijay Gupta. IO recorded the statement of complainant and after making endorsement IO handed over the same to this witness for registration of FIR. PW4 got registered the FIR and handed over copy of the FIR and original rukka to the IO.
F.I.R No : 340/06
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(12)ASI Sajid Hasan (PW5) is the finger print proficient. He deposed that on 15.05.06 he visited the spot and he developed two chance prints from the scene of crime and prepared the crime scene report and handed over the same to the IO. Copy of the same is marked as PW 5/PA.
(13)HC Vinod (PW 6) is the member of the investigating team of another FIR case No. 352/06, u/s 307/186/353/34 IPC and 25 Arms Act of PS Gokalpuri wherein the accused Shamshad, Shahid, Akram and Furkan were arrested from Bhagirathi Pullia. He deposed that the accused Shamshad made a disclosure statement regarding his involvement in the present FIR case alongwith other accused persons. The copy of the disclosure statement is exhibited as EX PW 6/A .
(14) Ct Harender Singh (PW7) is the member of investigating team which got recovered Rs 19,000/, visiting cards and receipts from the possession of accused Roshan and at the instance of accused Shamshad, Shahid and Akram. He deposed that on 23.05.2006 he was posted at PS Gokalpuri and was present at the PS. Accused Shamsahd, Shahid and Akram were taken out from the lockup and they were arrested and their personal search was also conducted. He placed on record the arrest memo and personal search memo of accused Akram vide EX PW 7/A and EX PW 7/B respectively. The disclosure statement of the accused persons were recorded and after that all the accused persons led the police party to D2, Nehru Vihar Delhi for the recovery, there they met Smt. Roshan who took out one polythene from the Iron box and produced the same to the IO which was containing Rs. 19,000/, five visiting cards and some old receipts. The accused persons disclosed and identified the said items as the same which were looted from Dixit Enterprises.
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IO seized the same vide seizure memo EX PW 7/C and kept the same in a plastic polythene and then in a plastic jar and sealed the same with the seal of VK. IO arrested the accused Roshan and his personal search was conducted by lady Ct. Sunita. Thereafter, they took all the accused persons to GTB Hospital for their medical examination and thereafter they were produced before the court and from where the accused persons were remanded to JC and thereafter they came back to the PS and IO deposited the PS in malkhana.
On 26.05.06, accused Arshad was arrested in the FIR case 355/06, U/s 399/402 IPC and Section 25 Arms Act from PS Gokalpuri where he made a disclosure statement (EX PW 7/D) regarding the commission of the offence of the present case. IO of this case arrested the accused Arshad in the PS vide arrest memo EX PW 7/E. IO interrogated the accused and recorded his disclosure statement EX PW 7/F. This witness identified the currency notes as the same which were recovered from the possession of accused Roshan.
(15)HC Raj Kumar (PW8) and Ct Sarabjit Singh (PW11) are also members of investigating team in respect to the recovery effected from accused Roshan. These witnesses have deposed more or less on the same lines of PW7.
(16)HC Tara Chand (PW9) is the duty officer who on receipt of rukka from Ct. Desh Raj recorded the FIR vide EX PW 9/A. (17)Sh. Pratap Singh Malik (PW10) is the Presiding Officer Labour Court, Karkardooma Court, the then Ld. M.M. who conducted the TIP proceedings in respect to the accused Shamshad, Akram Shahid, Fazloo, Noor Alam and Arshad. He deposed that on 02.06.06 he conducted the TIP of accused Shamshad. The F.I.R No : 340/06 P. S : Gokalpuri State vs. Fazlu etc. 12/26 witness Neeraj Gaur failed to identify accused Shamshad. He proved the TIP proceedings EX PW 1/B and his certificate EX PW 10/A. PW10 further deposed that on 02.06.06 the accused Akram, Shahid, Fazloo, Noor Alam and Arshad refused to join TIP proceedings and they were warned that adverse infernce could be drawn against them during trial. The TIP proceedings in respect to these accused persons are as EX PW 10/B, EX PW 10/C, EX PW 10/D, EX PW 10/E, EX PW 10/F, EX PW 10/G, EX PW 10/H, EX PW 10/I, EX PW 10/J, EX PW 10/K, EX PW 10/L and EX PW 10/M respectively.
(18) SI Ajay Kumar (PW 13) is the IO of the FIR case no. 352/06, u/s 307/186/353/34 IPC, PS Gokalpuri. He deposed that on 22.05.06 he arrested accused Akram, Shahid, Shamshad and Furkan in the said FIR case and recorded the disclosure statement of accused Shamshad, Akram and Shahid who confessed their involvement in the present case.
(19)SI Om Pal Singh (PW 14) is the member of the investigating team of the FIR case no. 352/06, u/s 307/186/353/34 IPC, PS Gokalpuri. He deposed that on 22.05.06 accsued Shamshad and Akram were arrested in the aforesaid FIR case and they made disclosure statement EX PW 6/A and EX PW 14/A respectively. He informed about the same to the IO of this case who obtained copy of the disclosure statements of both the accused from him.
(20) SI Vijay Kumar Gupta (PW15) is the IO of the case. He deposed that on 15.05.2006 he received a DD no. 26 A regarding dacoity and reached the spot alongwith Ct. Deshraj where he met with the complainant Neeraj Gaur. He recorded the statement of complainant EX PW 1/A and made his endorsement on the same (EX PW 15/A) and got the FIR registered through F.I.R No : 340/06 P. S : Gokalpuri State vs. Fazlu etc. 13/26 Ct. Deshraj. He called the crime team on the spot. Crime team developed two chance prints and Inchage of the Crime team submitted his report EX PW 5/PA. He prepared the site plan of the spot EX PW 15/C. On 16.05.06, Mr. Pankaj Tiwari came to the PS and made a statement that at the time of occurrence he visited the shop of the complainant and at that time two persons armed with katta were standing on the gate of the shop and did not allow him to go inside the shop. Mr Pankaj Tiwari also told the IO that accused persons snatched Rs. 4000/ and his mobile phone. After the statement of Mr. Pankaj Tiwari the section 394 IPC was changed to Section 395 IPC. PW15 further deposed that accused Akram, Shahid and Shamshad were arrested in FIR case no. 352/06, PS Gokalpuri, where they made disclosure statement about the involvement in the present case. He interrogated the said accused persons and the accused persons made similar disclosure statement before him then IO formally arrested these accused persons vide arrest memos EX PW 7/A, EX PW 8/A and EX PW 11/A. On the basis of disclosure statement of the said accused persons, a police team consisting L/Ct. Sunita, Ct. Raj Kumar, Ct. Harender and Ct. Sarabjit was constituted. The accused persons led the police party to the house of the accused Smt. Roshan situated D2, Nehru Vihar, Delhi. IO interrogated Smt. Roshan who disclosed that on 15.05.06 the said accused persons alongwith their other three associates namely Noora, Fazloo and Arshad had come to her. Each of the accused persons kept Rs. 2000/ with them and they handed over the remaining amount to her which she kept in a box at her house. Accused Roshan took out a polythene from the box lying at her house which was containing Rs. 19000/ and slip of Dixit Enterprises and some visiting cards. IO seized the currency notes and the slip and the visiting cards in a plastic jar vide seizure EX PW 7/C and arrested the accused Arshad vide F.I.R No : 340/06 P. S : Gokalpuri State vs. Fazlu etc. 14/26 EX PW 15/D. The accused were directed to remain in muffled faces and after their medical examination they were produced before court concerned for their JC remand.
PW15 further deposed that on 26.05.06 accused Fazloo, Noor Alam @ Noora and Arshad were arrested in FIR case no. 355/06, PS Gokalpuri, where they made disclosure statement about the involvement in the present case. He interrogated the said accused persons and the accused persons made similar disclosure statement before him then IO formally arrested these accused persons vide arrest memos EX PW 11/C, EX PW 7/G and EX PW 7/E. He recorded the disclosure statement of accused Fazloo, Noor Alam @ Noora and Arshad vide EX PW 8/C, EX PW 11/D and EX PW 7/F respectively. Thereafter, they were produced before Ld M.M. for JC remand.
During investigation IO moved application for TIP of accused persons. All the accused persons except accused Shamshad refused to join TIP . During investigation witness Pankaj Tiwari came to the court where he identified the accused Shahid and Shamshad at the gate of the court room as the same persons who were standing outside the shop and stopped him from entering the shop and robbed on the point of kattas. During his evidence, IO identified accused persons and case property.
(21) Ct. Ashok Kumar (PW 16) is the member of police team who arrested the accused Noor Alam @ Noora when he was a proclaimed offender. He deposed that on 05.10.2011 he alongwith HC Vijay Dutt and Ct. Vidya Dutt arrested the accused Noor Alam and in this regard a Kallandara u/s 41.1 Cr.P.C (EX PW 16/A) was prepared by HC Vijay Dutt.
(22)On conclusion of prosecution evidence, statements of accused persons were recorded u/s 313 Cr.P.C. Accused persons pleaded F.I.R No : 340/06 P. S : Gokalpuri State vs. Fazlu etc. 15/26 innocence and false implication. During trial, the accused Arshad and Noor Alam absconded and after completion of proceedings u/s 82 and 83 Cr.P.C both accused persons were declared proclaimed offenders. Thus, both the accused persons were additionally charged for the commission of offence u/s 174 A IPC. In this regard accused Noor Alam stated that he could not appear as he was in JC at Bijnour U.P while accused Arshad did not dispute this fact and stated that it is a matter of record.
(23)I have heard Sh. Maqsood Ahmed, Ld. Addl. P.P and Sh. K.K Sharma, Ld. LAC for accused Arshad and Shahid, Sh. Sunil Kumar, Advocate for accused Fazloo, Shamshad, Noor Alam, Akram and Roshan and gone through the record of the case. Ld. Addl. PP submitted that the prosecution has proved its case against the accused persons beyond reasonable doubts through the evidence of the number of witnesses examined by the prosecution, thus, the accused persons may be convicted for the offences they are charged with. On the other hand Ld. LAC submitted that accused persons have been falsely implicated in the present case which is clear from the various documents which were allegedly prepared by the IO during investigation and placed on record during the evidence of the prosecution witnesses. He further submitted that the public witnesses have not supported the prosecution case and there are number of material contradictions in the testimonies of the prosecution witnesses which reveal that the accused persons have been falsely implicated. In addition to these submission, Mr. Sunil Kumar, Ld. counsel for the other accused persons submitted that no recovery has been effected from the accused Roshan and the same has been planted upon him. He submitted that as per complainant, only the cash of Rs. 35000/ was looted while as per prosecution case a sum of Rs. 19000/ has been recovered alongwith some F.I.R No : 340/06 P. S : Gokalpuri State vs. Fazlu etc. 16/26 receipts and visiting cards pertaining to the shop of the complainant which was never complained to have been looted. Thus, both the learned counsel submitted that accused persons may be acquitted.
(24)As per prosecution case six accused persons namely Fazlu, Noor Alam @ Noora, Akram, Shahid, Shamshad and Furkan committed dacoity at the shop of the complainant. The seventh accused Roshan has been charge sheeted for retaining the looted property. In the entire charge sheet, role of the accused persons have not been specified. Charge sheet only states that the said six accused persons committed dacoity, however, it doesn't specify as to which accused persons entered the shop of the complainant and which two accused persons were standing outside to give cover to the rest of the accused persons. As per the statement of complainant four persons were involved in the offence while as per the statement of Mr. Pankaj Tiwari there were six accused persons involved in the offence. He stated in his statement recorded under section 161 Crl.P.C. that two accused persons were present outside the shop with katta and four were inside the shop. Still role of the accused persons is not clear. As per the statement of IO, the Complainant Mr. Neeraj Gaur and Mr. Pankaj Tiwari identified the accused persons outside the court room on 04.07.2006, when accused persons were produced before the court and their roles were also specified by these witnesses in their supplementary statement recorded on 04.07.2006. As per the statement of Mr. Pankaj Tiwari, the accused Shamshad and Shahid were present outside the shop while other four accused persons namely Fazlu, Noor Alam, Akram and Arshad had entered the shop to commit the offence. The complainant also described the name of the same accused persons who entered his shop.
F.I.R No : 340/06
P. S : Gokalpuri State vs. Fazlu etc. 17/26
(25)Now, it is to be seen as to what evidence has come on record to connect these six accused with the offences they are charged with.
(26)As per prosecution case, no recovery has been effected from the possession of the said six accused persons. Neither any katta nor the looted money has been recovered. Thus, in the absence of any recovery the accused could have only been connected with the offence on the basis of their identification by the complainant and other witnesses. As per settled law, if the offenders are previously not known to the complainant or the witnesses, then their judicial TIP ought to be conducted for proper identification and also to rule out any doubt and possibility of the false implication. Thus, after arrest of the accused persons, they were required to be kept in muffled faces till the time their judicial TIP is conducted by the witnesses. It is clear from the statement of the complainant made during cross examination that the accused persons were not previously known to him. It is also clear from the cross examination of PW1 that before conducting the TIP, the IO had called the complainant time and again to the police station to identify the accused persons. It is further clear that all the accused persons were in unmuffled faces when IO called the complainant to police station. The faces of the accused persons ought not to have been shown prior to the TIP. All the accused persons except accused Shamshad refused to join TIP. The refusal to join TIP by the accused persons appears to be justified under these circumstances. In this regard this court is supported by the law laid down by Hon'ble High Court in the case reported as " 2014 (3) JSCC, 1862 titled as Nanhe v. State". It has been held by Hon'ble High Court in this case that the face of offenders can not be shown to the witness prior to the TIP proceedings. If F.I.R No : 340/06 P. S : Gokalpuri State vs. Fazlu etc. 18/26 the accused persons are shown, then such TIP proceedings can not be relied upon.
(27)As per the case of prosecution the accused Shamshad and Shahid were present outside the shop of the complainant and these accused persons were only seen by the prosecution witness Mr. Pankaj Tiwari. Thus, the TIP of these accused persons was to be conducted by this witness but the IO of the case has got the TIP of the accused Shamshad conducted from the complainant Mr. Neeraj Gaur who had not seen the accused Shamshad at the time of occurrence of offence. Result of the TIP was obvious that complainant failed to identify the accused Shamshad.
(28)After the accused persons had refused to join the TIP, complainant and other witnesses had another opportunity to identify the accused persons in the court. The accused Fazlu, Shahid, Shamshad and Akram were facing trial when complainant came to depose for the first time on 01.11.2010 and rest of the two accused persons namely Arshad and Noor Alam were absconding and were running proclaimed offender. During his evidence, complainant identified the accused Fazlu, Shahid, Shamshad and Akram as the same accused persons who entered his shop. The identification of the complainant is not reliable as he identified the accused Shamshad and Shahid who as per the supplementary statement of Mr. Pankaj Tiwari were present outside the shop and were only seen by Mr. Pankaj Tiwari. After arrest of accused Arshad and Noor Alam, complainant Mr. Neeraj Gaur was reexamined on 04.04.2012,. The complainant made substantial improvement in his statement. He deposed that he had earlier stated that two more accused persons armed with katta were present outside the shop. During F.I.R No : 340/06 P. S : Gokalpuri State vs. Fazlu etc. 19/26 his earlier deposition, complainant had identified accused Fazlu, Akram, Shamshad and Shahid as the four offenders who had entered into his shop but in his subsequent deposition he said that accused Arshad and Noor Alam were the other two who entered his shop. Thus, it is clear from the testimony of the complainant that he could not properly identify the accused persons who had entered his shop and thus, it would be highly unsafe to rely on the shaky testimony of the complainant. Furthermore, there is no other testimony available on record to corroborate the testimony of the complainant. Rest of the public witnesses have not identified the accused persons.
(29)As per prosecution case, PW2 Pankaj Tiwari is the sole eye witness who had seen all the six accused persons(the two who were present outside and other four inside the shop) who involved in the offence. This witness has not supported the prosecution case. PW2 supported the prosecution case only to the extent that at the time of offence he visited the shop of the complainant and there he found four accused persons. He also stated that accused persons had snatched his mobile and Rs. 4000/ from him but he did not identify the accused. He was cross examined by the ld. Addl. P.P. but of no avail. He denied that during investigation he made a statement that six accused persons were involved in the offence. PW2 also denied that on 04.07.2006, he identified all the six accused persons outside the court room and in this regard he gave a supplementary statement. Even otherwise, this identification is not a proper identification as accused were already in custody.
(30)The other two public witnesses i.e. PW3 and PW12, the employees of the complainant also did not support the prosecution case on the point of identification.
F.I.R No : 340/06
P. S : Gokalpuri State vs. Fazlu etc. 20/26
(31)In view of these discussions it is clear that no effort was made by the IO to conduct the proper TIP to ensure the availability of legal evidence for connecting the accused persons with the offence. The IO of this case adopted the wrong procedure to get the accused persons identified by calling the complainant in the Police station for the purpose of identification instead of following the well established legal procedure. Further, the IO did not get the TIP of the Shamshad and Shahid conducted from the sole eye witness Mr. Pankaj Tiwari rather IO got conducted the TIP of accused Shamshad by the complainant who had not seen these accused persons at the time of offence.
(32)As per prosecution case, all the six accused persons were arrested in some other cases where they disclosed about their involvement in the present case. No recovery was effected from the accused persons. Neither the weapon of offence nor any looted article was recovered from these six accused persons. As such, there was no other legal evidence available on record to connect the accused persons with the offence except the evidence on the point of identification which also could not come on record due to the lapses on the part of IO and the wrong procedure adopted by him.
(33)Furthermore, in this case, the possibility of the false implication of the accused persons also can not be ruled out. As per the supplementary statement (EXPW2/PA) of PW2 the accused Shamshad and Shahid were present outside the shop while as per the disclosure statements of the accused persons, ( which were exhibited and relied on by the prosecution as EXPW6/A, 7/D, 7/F, 8/C, 11/D, 11/P1, 14/A) the accused Shamshad and Akram were present outside the shop. The disclosure statements and the statements of the witnesses have been recorded by the F.I.R No : 340/06 P. S : Gokalpuri State vs. Fazlu etc. 21/26 same IO. Moreover, some of the disclosure statements disclose about the involvement of only five accused persons.
(34) Thus, it is held that prosecution has miserably failed to prove its case against the accused persons namely Fazlu, Noor Alam @ Noora, Shamshad, Arshad, Akram and Shahid for commission of offence u/s 395/397/506/34 IPC, thus, accused persons are accordingly acquitted for these charges.
(35)The accused Noor Alam and Arshad are facing additional charges under section 174 A IPC as both the accused were declared proclaimed offenders during trial.
(36)It is clear from the record that accused Noor Alam was on bail and stopped appearing w.e.f. 30.03.09 and since the accused failed to appear despite issuance of NBW, the proclamation u/s 82 Cr.P.C was issued and duly executed against him on 12.09.2009, however accused Noor Alam did not appear within 30 days of the execution of the process u/s 82 Crl.P.C. Thereafter, on dt. 13.11.2009 the statement of concerned process server was recorded who proved the execution of the process vide ExCW1/A. Thus, the accused Noor Alam was declared a proclaimed offender on 13.11.2009. It is clear from EX PW 16/A the kalandara which was prepared after arrest of accused Noor Alam that on 5.10.2011 the accused had come to the Karkardooma Courts to appear in a FIR case no. 352/06 PS Gokalpuri u/s 307 IPC etc where he was on bail and on the same day accused was arrested. Thus, it is clear that accused deliberately absconded and therefore, he is guilty of commission of offence u/s 174 A IPC. Thus, the explanation furnished by accused Noor Alam for his non appearance that he was in JC at Bijnour U.P. is found apparently false. The accused Noor Alam F.I.R No : 340/06 P. S : Gokalpuri State vs. Fazlu etc. 22/26 was declared a P.O in the present case where accused he was facing trial for the commission of offences u/s 395/397 IPC etc. and therefore he is guilty for commission of offence which falls in part (ii) of 174 A IPC.
(37)It is further clear from the record that accused Arshad was also on bail and stopped appearing w.e.f. 27.02.2008 and since the accused failed to appear despite issuance of NBW, the proclamation u/s 82 Cr.P.C was issued and duly executed against him on 07.02.2009, however accused did not appear within 30 days of the execution of the process u/s 82 Crl.P.C. Thereafter, on dt. 30.03.2009, the statement of concerned process server was recorded who proved the execution of the process vide Ex CW1/A, thus, accused Arshad was declared a proclaimed offender on 30.03.2009. The accused Arshad was taken into custody on 08.06.2011 in this case when he was produced in JC from Muradabad jail on the application of HC Vijay Dutt. The accused Arshad has not furnished any plausible reason for his non appearance during the aforesaid period and has also not led any evidence to show that he was incapable of appearing before the court from 27.02.08 to 30.03.09, thus, in the absence of any explanation or any evidence from the side of accused, it is to be held that the accused Arshad deliberately and knowingly absented himself and absconded and therefore he was rightly declared a proclaimed offender. The accused Arshad was declared a P.O in the present case where accused is facing trial for the commission of offences u/s 395/397 IPC etc. and therefore he is also guilty for commission of offence which falls in part (ii) of 174 A IPC.
(38)The accused Roshan is charged u/s 412 IPC for receiving and retaining the property looted in dacoity. The allegation against the F.I.R No : 340/06 P. S : Gokalpuri State vs. Fazlu etc. 23/26 accused Roshan are that Rs. 19000/ (which part of the looted cash) alongwith some visiting cards and receipts ( pertaining to the shop of the complainant) were recovered from the house of accused Roshan. As per the statement of complainant, the accused persons had looted cash, jewellery and mobile phones from his shop. Complainant never stated that some receipts and visiting cards were also looted. The articles which were never stolen could have never been recovered from the accused. All four public witnesses including complainant have only deposed about the robbery of cash, jewelry and mobile phone and they never mentioned in their statement that the receipts and the visiting cards were also looted. It is not the case of prosecution that accused persons had taken the cash box with them which contained cash and other articles. The complainant has deposed that he handed over the cash of Rs.35000/ to the accused. It is also not the case of complainant that later on he came to know that some visiting cards and some receipts have also been looted. There is even no whisper about the same in the entire prosecution evidence. The receipts and visiting cards are not the valuable property, thus, it cannot be presumed that accused would take away or retain these things with them. Thus, possibility of planting the case property upon the accused can not be ruled out.
(39)Furthermore, as per prosecution case, the accused Shamshad, Shahid and Akram disclosed that part of looted money is in the possession of accused Roshan. PW7 Ct. Harnder Singh, is the member of the police team which went to the house of accused Roshan for recovery of the looted amount. During cross examination PW7 deposed that they left the police station at 11.30 am. He also deposed that accused was arrested at about 11.30 pm. It is also clear from the cross examination of PW8 F.I.R No : 340/06 P. S : Gokalpuri State vs. Fazlu etc. 24/26 HC Raj Kumar, another member of the that till 11.30 am all the members of raiding team were in the police station while as per arrest memo(EX15/D) the accused Roshan was arrested at 11 am. Thus, it is clear from the aforesaid facts that accused was arrested much before the time of the alleged visit at the house of the accused. Thus, possibility of false implication can not be ruled out.
(40)As per prosecution case a police team consisting IO SI Vijay Kumar Gupta, Ct. Sunita, Ct. Raj Kumar, Ct. Harendera and Ct. Sarabjeet visited the house of the accused Roshan to cause the recovery of the looted money. There are several material contradictions which also create a big doubt about the recovery from accused Roshan. During cross examination, PW7 Ct. Harnder Singh stated that lady Ct.Sunita and Ct. Rajkumar had taken the accused persons to the GTB hospital for the medical and PW7 stated that he did not accompany the other police officials to the GTB hospital while PW11 Ct. Sarabjit Singh stated that all the police officials had gone to the GTB hospital. PW7 further stated that from the house of accused Roshan, the police officials went to the Karkardooma Courts while as per PW15 IO/Inspector Vijay Kumar Gupta, he firstly went to the PS to deposit the case property in the PS and then went to the GTB hospital and then Karkardooma Court.
(41)There is further doubt about the proper seizure of the case property. As per seizure memo EXPW7/C, five visiting cards were recovered and when the case property was produced before the court the seized container was found containing 7 visiting cards. Thus, it cannot be said that the case property was not tampered with during the period when the same was seized and sealed at the spot and produced before the court.
F.I.R No : 340/06
P. S : Gokalpuri State vs. Fazlu etc. 25/26
(42)It is not explained why the prosecution has neither cited not examined L/Ct. Sunita, as a witness who was the member of the police team caused recovery of the looted money.
(43)Thus, recovery of the Rs.19000/ from the accused Roshan is highly doubtful. Hence, accused Roshan is acquitted of the charges of section 412 IPC.
(44)In view of the aforesaid discussion it is held that prosecution has failed to prove the allegations against the accused Fazlu, Noor Alam @ Noora, Shamshad, Shahid, Akram and Arshad for the offences u/s 395/397/506 (ii)/34 and against accused Roshan for the offence u/s 412 IPC beyond the reasonable doubt. There are several material contradictions in the testimony of the prosecution witnesses which make the testimony of prosecution witnesses unreliable hence, all the accused persons are acquitted from the aforesaid charges. The accused Arshad and Noor Alam @ Noora were additionally charged for commission of the offence u/s 174 A IPC as during trial both these accused persons had absconded and were declared proclaimed offenders. Both the accused persons have been found guilty of the commission of the offence u/s 174 A (ii) IPC and accordingly they are convicted for the same.
(Ajay Gupta) ASJ04/Shahdara/KKD/30.03.2015 (Announced in the open court on 30.03.2015 ) F.I.R No : 340/06 P. S : Gokalpuri State vs. Fazlu etc. 26/26