Delhi District Court
State vs . Shahnawaj @ Shanu on 26 August, 2017
IN THE COURT OF SH. SUNIL K. AGGARWAL, ADDITIONAL SESSIONS
JUDGE04, (NORTHWEST DISTRICT) ROHINI COURTS, DELHI
IN THE MATTER OF :
Sessions Case No.: 53414/16
CRN No.: DLNW010061872016
FIR No: 25/2016
U/s: 392/397/34 IPC
PS : Keshavpuram
STATE Vs. Shahnawaj @ Shanu
S/o Yamin
R/o Village Pasoda, Near Badi Masjid,
PS Sahibabad, Ghaziabad, UP
Complainant:
Sh. Surjeet Gupta
S/o Late Shri Rameshwar Gupta
R/o H.No.44D, EUBlock,
Pitampura, Delhi.
Date of receipt of files in this Court : 22.08.2016
Date of judgment : 26.08.2017
J U D G M E N T:
1.Case of prosecution is that the complainant was going from his shoe factory in Tri Nagar to Daya Basti on two wheeler scooter at about 2.30pm on 09.01.2016. He had stopped near Metro Pillar No.231, on the road for urinating. As soon as he started his scooter and took out his mobile phone, four boys came on two motorcycles and surrounded him. They had snatched his mobile phone and gold chain SC No. 53414/16 FIR No.25/16 P.S.Keshavpuram S/V Shahnawaz @ Shanu Page No. 1 of 12 by showing something like pistol having a pipe by threating that if he will shout, he will be shot. Out of the four assailants, two of them had caught hold of him. They had the pistol with them. The other two assailants had snatched his mobile and gold chain from neck individually. They had thereafter, fled away on their motorcycles. Claiming that he will be able to identify the said robbers, aged between 2530 years, on being shown, he had got complaint recorded to the IO/SI Amit Kumar, who had got the FIR registered on that basis. IO had made endeavors to arrest the accused persons and recover the case property but no headway could be found. He had therefore prepared untrace report and got it cleared from the ACMM.
2. From 02.04.2016, an information about the arrest of Shadab @ Salman, Shahnawaj @ Shanu, Majid @ Bablu and Mohd Imran in FIR No.314/16 u/s.482/411/34 IPC and section 25 Arms of PS Nand Nagri was received from Special Staff, NorthEast District, in which they had made disclosure statement about their involvement in this case. On the application of IO, the said four accused persons were produced in court in muffled faces on 10.05.2016. They were interrogated and formally arrested with the permission of court. During which, they disclosed that the chain was sold to Aslam R/o C64, Gali No.4, Chaman Park, Indra Park, Delhi and the mobile phone snatched from the complainant was thrown away. On proposing to conduct Judicial TIP of said accused persons, while the complainant could not identify Shadab @ Salman, Majid @ Bablu and Mohd. Imran, he had correctly identified SC No. 53414/16 FIR No.25/16 P.S.Keshavpuram S/V Shahnawaz @ Shanu Page No. 2 of 12 accused Shahnawaj @ Shanu on 20.05.2016. Since no recovery could be effected from three of the aforesaid persons nor could they have been identified by the complainant, they were released by the court on 31.05.2016 and 09.06.2016. While accused Shahnawaj was claimed by the complainant that he had shown pistol to him at the time of incident. Accused Aslam could not be traced nor therefore the case property could be recovered. Charge sheet report thus was filed against accused Shahnawaj on 25.07.2016, which after taking documents and necessary compliance u/s.207 CrPC was committed to the court of Sessions.
3. Accused Aslam, son of Shri Imdaad had surrendered in court on 26.07.2016. He was interrogated and arrested by SI Surajpal with permission of the court, during which, said accused had informed that he had sold the chain after changing its design, to Shahzad. Neither said Shahzad could be traced for want of particulars nor the gold chain could be recovered despite putting in efforts. Therefore, accused Aslam was got released by court on 27.07.2016, for want of evidence. Supplementary charge sheet in this behalf was filed in court on 20.01.2017.
4. On receipt of the case, on allocation to the Session Court, charges under Section 392/34 and 397 IPC were framed against accused Shahnawaz on 24.08.2016 to which he had pleaded not guilty and claimed trial.
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5. Prosecution has examined 12 witnesses in an effort to substantiate the charges. PW1 ASI Usha Rani is a formal witness. She being duty officer at the police station, on 09.01.2016 had got FIR Ex.PW1/A recorded on the computer through its operator on the basis of rukka received from SI Amit Kumar. She had made endorsement Ex.PW1/B on the rukka and had issued statutory certificate Ex.PW1/C.
6. PW2 Ct. Anshu is again a formal witness and as computer Incharge at PS Keshavpuram, he had taken out print out Ex.PW2/A of the previous involvements of accused Shahnawaj by checking his DP Dossier on 18.04.2016.
7. PW3 Shri Apoorv Sarwaria, had conducted the proceedings on application Ex.PW3/A of the IO, for judicial TIP of accused persons, on being marked by the concerned court. He has proved the production warrant of accused Shahnawaj and Shadab as Ex.PW3/B and Ex.PW3/C, orders dated 11.05.2016 and 12.05.2016 Ex.PW3/D, other application of SI Surajpal for TIP of accuseds Ex.PW3/E, order thereon Ex.PW3/F and the proceedings in respect of Imran Ex.PW3/G, Majid Ex.PW3/H, Shahdab Ex.PW3/I and Shahnawaj Ex.PW3/J. The copies of proceedings were directed to be supplied to the IO on his application Ex.PW3/K.
8. PW4 Ct. Mahesh stated that complainant had come to the police station on 09.01.2016 and had met SI Amit Kumar. After hearing him, the IO had taken him SC No. 53414/16 FIR No.25/16 P.S.Keshavpuram S/V Shahnawaz @ Shanu Page No. 4 of 12 to the spot, where his statement was recorded and after preparing tehrir, it was given to him for getting the FIR registered. Duty officer had delivered the original tehrir and copy of FIR to the IO on his return to the police station.
9. PW5 HC Manoj had brought FIR No.314/16 from PS Nand Nagri, of which copy was tendered as Ex.PW5/A.
10. PW6 Surjeet Gupta proved his complaint Ex.PW6/A and that he had identified accused Shahnawaj in judicial TIP, on 20.05.2016. He identified his signatures on such proceedings Ex.PW3/J. He claimed to have purchased Samsung E7 mobile from Reliance Store, Tri Nagar, Delhi against bill Ex.PW6/B. He expressed inability in identifying the pistol as he had not seen it because it was pointed at his waist from behind by the assailants.
11. PW7 ASI Manrakhan had recorded DD NO.37A, copy thereof is Ex.PW7/A, on receipt of information about the arrest of accused Shahnawaj and his associates in FIR No.314/16 of PS Nand Nagri on 02.04.2016 from ASI Rakesh Kumar of Special Staff, NorthEast District.
12. PW8 SI Shahid Ali stated that four boys coming on two motorcycles from Bhopura side via Waziarabad Road were arrested on 31.03.2016 on the basis of SC No. 53414/16 FIR No.25/16 P.S.Keshavpuram S/V Shahnawaz @ Shanu Page No. 5 of 12 secret information at Red Light of GTB hospital, when he was patrolling in the area, with other staff. The said boys were found to be in possession of illegal arms and ammunitions and even their motorcycles were stolen ones. On the basis of this complaint, FIR No.314/16 was registered at PS Nand Nagri and investigation was conducted by ASI Rakesh Kumar. The witness identified accused Shahnawaj to be one of the said four boys who were apprehended by him.
13. PW9 ASI Rakesh Kumar had conducted investigation of case FIR No.314/16 of PS Nand Nagri while being posted in Special Staff, NorthEast District, during which disclosure statement Ex.PW9/A of accused Shahnawaj had been recorded.
14. PW10 Shri Sanjay, Junior Judicial Assistant from the court of PS Nand Nagri had produced the judicial record of said case and proved copies of sketch of countrymade pistol and cartridges recovered from Imran and their seizure memo as Ex.PW10/B and Ex.PW10/A respectively. The seizure memo and sketches of country made pistols and cartridges recovered from accused Shahnawaj and Shadab as Ex.PW10/C to Ex.PW10/E. The disclosure statements of accused persons Ex.PW10/F, Ex.PW10/G, Ex.PW10/H and Ex.PW10/J. The seizure memos of black Apache motorcycle is Ex.PW10/K and FZ Yamaha Ex.PW10/L. The copies of documents were identified by the witness on the basis of original judicial record, brought by him. SC No. 53414/16 FIR No.25/16 P.S.Keshavpuram S/V Shahnawaz @ Shanu Page No. 6 of 12
15. PW11 SI Surajpal had seen the arrest of accused Shahnawaj by IO/SI Amit Kumar in court on 10.05.2016 as Ex.PW11/A. His disclosure statement Ex.PW11/B was recorded by the IO. The witness had come to arrest the very same accused persons in FIR No.38/16 of PS Keshavpuram being investigated by him.
16. PW12 IO/SI Amit Kumar has summed up the entire investigation and proved tehrir Ex.PW12/A, site plan of the spot Ex.PW12/B, besides the documents already tendered by other witnesses. He had filed the main chargesheet in court on the completion of investigation.
17. Prosecution has closed its evidence on 23.08.2017.
18. In his statement recorded under Sec.313 Cr.PC, accused claimed to be innocent and falsely implicated in this case by the IO. The witnesses are claimed to be interested. He denied having made any statement to the police ever and generally, refuted the investigation conducted in this case including for want of knowledge. He claimed that he have been shown to the complainant by the IO prior to his judicial TIP. He declined to lead evidence in defence.
19. I have heard Sh. Praveen Kumar Samadhiya, Ld. Addl. PP for the State, Sh. Ayub Ahmad Qureshi, Advocate, Ld. Defence counsel and carefully perused the file. It has been contended by Sh. Samadhiya that the complainant and SC No. 53414/16 FIR No.25/16 P.S.Keshavpuram S/V Shahnawaz @ Shanu Page No. 7 of 12 only eyewitness PW6 had unequivocally identified the accused as one of the robbers, on 20.05.2016 in judicial TIP without putting any rider that the said identification is based on the physique of accused. Despite having the opportunity, he had not disclosed to the Ld. Metropolitan Magistrate that the accused was wearing helmet at the time of commission of offence and therefore his face was not seen by him. This fact was introduced by him in response to a court question, during his cross examination. It was not got clarified from the witness in crossexamination as to whether he was wearing full mask helmet. The complainant had subsequently identified the accused as one of the culprits on 25.05.2016, when he happened to visit the Police Station and found him in lockup being in Police custody. The identification of accused by the complainant finds reiteration from his version in crossexamination that he had told the IO that he will be able to identify the robbers, on being shown. The subsequent apprehension of accused with a firearm by Special Staff of NorthEast District indicates that he is a habitual offender and must have used the weapon to rob the complainant, as per his disclosure statement Ex. PW 11/B.
20. Ld. Defence counsel on the other hand argued that the identification of accused in judicial TIP Ex. PW 3/J is only a matter of chance as complainant/PW6 clarified in witness box that said identification was based on physique of the accused. To a subsequent question, PW6 had responded that he is not sure of involvement of the accused Shahnawaz as he had been identified by him on the basis of physique. Admittedly, the face of accused could not be seen by him due to helmet. The SC No. 53414/16 FIR No.25/16 P.S.Keshavpuram S/V Shahnawaz @ Shanu Page No. 8 of 12 complainant claims to have told the factum of accused wearing helmet while committing the offence, to the IO but it does not find place in complaint Ex. PW 6/A, which reflects the standard of investigation in poor light. It has, thus, been stressed that the prosecution has failed to prove the charges against the accused.
21. Deferring the assessment of the identification of accused and its basis by the complainant by some paras, the complainant/PW6 Surjeet Gupta did not pinpoint the role played by accused Shahnawaz in the commission of offence given that two of the robbers had pointed pistols on his waist and caught hold of him, the third had snatched mobile phone from his hand and fourth had taken his gold chain. The firearm allegedly recovered from the accused in other case cannot be linked to the present case as the witness firstly was doubtful about the real description of the weapon used by the robbers which he termed to be 'something alike pistol having pipe' and secondly such weapon was put on his waist from behind and therefore he was not in a position to see the same. He did not claim to have seen such weapons even when the robbers were leaving the spot after the commission of offence. IO/PW12 himself deposed that the complainant did not attribute/specify the exact role of the accused in his last statement recorded on 25.05.2016. The prosecution, thus, could not substantiate that the accused had carried and shown/used a deadly weapon for commission of the offence of robbery with victim/complainant, on 09.01.2016.
22. The case was filed by preparing untrace report when no clue about the SC No. 53414/16 FIR No.25/16 P.S.Keshavpuram S/V Shahnawaz @ Shanu Page No. 9 of 12 robbers and the robbed articles of complainant could be found for about ten weeks of the commission of offence. It was reopened on receipt of information from Special Staff, NorthEast District about four accused persons arrested by them, on 31.03.2016 in some case having disclosed about their involvement in the present case, vide DD No. 37A dated 02.04.2016, Ex. PW 7/A. The judicial record would show that in pursuance of said information, IO/PW12 had moved an application on 11.04.2016 before Ld. Concerned MM for issuing production warrants of the four accused persons in muffled faces. The requisite orders were passed by the court for 12.04.2016. Subsequent similar applications dated 21.04.2016 & 04.05.2016 were filed by PW12 and PW11 respectively pursuant whereof the accused persons were produced on 10.05.2016 when they were formally arrested in this case with the permission of court. Ironically, there is no case diary of the part of investigation conducted by IO/s between 02.04.2016 (case diary no. 5) to 10.05.2016 (case diary no. 6). There is also no mention as to when, how and from whom the copies of relevant documents were collected from Special Staff Police of NorthEast District. The record does not specify that the accused persons could not be produced in court on 12.04.2016 and 28.04.2016 due to constraints on the part of jail authorities or that they were actually produced but the IO could not appear in court for joining them in investigation. This is a material lapse on the part of Investigating Officer which left vital loophole in the case.
23. The Judicial TIP of accused Shahnawaz and three others was conducted on 20.05.2016 by which time 19 weeks had passed to the date of commission of SC No. 53414/16 FIR No.25/16 P.S.Keshavpuram S/V Shahnawaz @ Shanu Page No. 10 of 12 offence. Since the complainant had attempted to identify four persons who had committed robbery with him, a perusal of proceedings Ex. PW 3/G, Ex. PW 3/H, Ex. PW 3/I and Ex. PW 3/J indicate that he had just taken chance to point a finger towards one of the persons standing in line before him in the hope of striking the correct person without really making a serious effort to revisit his memory about the faces of offenders. Apparently, he was successful in such attempt qua accused Shahnawaz without making a mention to the Ld. MM that he has pointed out the accused Shahnawaz and for that matter the other accused persons shown to him, on the basis of their physique as he had no opportunity to see their faces because they were wearing helmets. By introducing twin factors for identification of the accused in his examination as star witness of prosecution, the complainant drastically whittled down the efficacy of his version. His answer to a direct court question as to whether he was able to see the face of the accused who was in his front, that he could not see his face because he was wearing helmet of black colour while committing offence with him, appears to be the last straw for the prosecution case. It can be legitimately gathered that the offender was wearing full mask helmet and therefore his face was not visible at all or even from a partly open helmet, he could not make out his facial contours. The witness further clarified that he was not sure of the involvement of accused Shahnawaz in the commission of robbery with him.
24. Apart from the above features that have emerged in the case, it has been noted that the accused while making disclosure statement Ex. PW 10/F to PW9 ASI SC No. 53414/16 FIR No.25/16 P.S.Keshavpuram S/V Shahnawaz @ Shanu Page No. 11 of 12 Rakesh Kumar, IO of FIR No. 314/16, PS Nand Nagri, Ex. PW 5/A had specified that the robbery was committed by him with a scooterist near Metro Pillar No. 231. It appears too far fetched that an offender will remember such details after more than two and half months of the commission of offence, while making disclosure of his involvement in 23 other cases. Significantly, his disclosure statement Ex. PW 11/B is absolutely bereft of the place of commission of robbery so as to relate to the present case.
25. None of the robbed articles of the complainant or their changed version could be recovered during investigation. No efforts have been made to verify the claim of accused that the mobile phone robbed in this case had been thrown away by visiting such place and preparing a memo. The prosecution, thus, could not succinctly prove even the charge under Sec. 392/34 IPC against accused Shahnawaz.
26. To sum up the above analysis, the accused Shahnawaz is hereby acquitted of charges. His bail bond is cancelled and his surety is discharged.
File be consigned to Record Room.
Announced in the open court
on 14th September, 2015 (Sunil K. Aggarwal)
Addl. Sessions Judge04 (NorthWest)
Rohini Courts, Delhi
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