Delhi District Court
State vs : Mohd. Hussain & Ors. on 9 February, 2015
IN THE COURT OF SH. SUDHANSHU KAUSHIK : ACMM-01 :
CENTRAL DISTRICT : TIS HAZARI COURTS : DELHI
State Vs : Mohd. Hussain & Ors.
FIR No : 662/1995
U/s : 392/34 IPC
PS : Paharganj
Date of Institution: 23.12.1995
Date of Judgment reserved for: 06.02.2015
Date of Judgment: 10.02.2015
Unique ID No. 02401R0273472003
Brief details of the case
A. Sl.No. of the case 001004/P
B. Offence complained of
or proved U/s 392/34 IPC
C. Date of Offence 31.10.1995
D. Name of the complainant Sh. Inder Bhan Pandey
S/o Sh. Tirath Raj Pandey
R/o A-704, Prem Nagar,
Nabi Karim, Paharganj, Delhi.
E. Name of the accused (1) Mohd. Hussain
S/o Raza Hussain
R/o Vill. & PO Hassan Pur,
PS Hassan Pur, Distt. Muradabad,
Uttar Pradesh
(2) Noor Mohd.
S/o Ahmed Hussain
R/o Vill. & PO Lakos,
PS Bibai, Distt. Madhubani,
Bihar
(3) Mehboob Alam
S/o Mohd. Tayyab
R/o Vill. & PO Aaya Ghat,
PS Bilaspur, Distt. Darbanga,
Bihar
(4) Sumer Parbat
S/o Laxman Prasad
R/o Vill.Purva Toll Ward No.2,
Bhantal Bhorang, Nepal.
FIR No.662/1995 State Vs Mohd. Hussain & Ors. Page 1 of 11
F. Plea of the accused Pleaded not guilty
G. Final order Acquitted
H. Date of Order 10.02.2015
Judgment
On the accusation of acting in furtherance of their common intention
and committing robbery by wrongfully restraining Inder Bhan Pandey (hereinafter
referred to as ' complainant' ) and using force against him for dishonestly taking out
of his possession, a green colour polythene bag containing cash amount of Rs.
24,000/- (Rupees Twenty-Four Thousands only), Mohd. Hussain, Noor Mohd,
Mehboob Alam and Sumer Parbat (hereinafter referred to as ' accused' ) were sent
up to face trial for committing offence punishable under Section 392 IPC read with
Section 34 IPC.
Brief facts as unfolded during trial
2. The case of prosecution is that complainant (PW-2) was a taxi driver
running taxi from taxi stand of New Delhi Railway Station (NDRS). On
31.10.1995, Uday Bhan Pandey (PW-1), elder brother of complainant, arrived at NDRS from his native place to hand-over a sum of Rs.24,000/- (Rupees Twenty- Four Thousands only) to his brother. Complainant took the green colour polythene bag containing cash from his brother and kept it in the right side pocket of his pants and they both came out of the taxi stand. While they were standing on the pavement, in front of taxi stand, all the accused came there and forcibly took away the polythene bag from the complainant. Mohd.Hussain, Mehboob Alam & Sumer Parbat caught hold of complainant while Noor Mohd. took out the polythene bag FIR No.662/1995 State Vs Mohd. Hussain & Ors. Page 2 of 11 from his pocket and all of them tried to flee from the spot. After being robbed, complainant and his brother raised alarm and both started shouting for help. In the meantime, during the course of their patrolling duty, HC Daljeet Singh and Ct. Ravinder Malik (PW-7) arrived there and apprehended the accused persons. Information about the incident was received and recorded at Police Station Paharganj as DD No.23 and after receiving this information, HC Tilomani Bhatt (PW-4) and Ct. Joginder Singh (PW-8) went to the spot and thereafter, IO/ASI Diwan Singh (PW-9) also arrived there and arrested the accused. In the said background, present case bearing FIR No.662/1995 under Section 392 IPC read with Section 34 IPC was registered at PS Paharganj.
3. Necessary investigation was carried out and requisite documentation was done. The robbed polythene bag containing cash was recovered from the possession of accused Mohd. Hussain and it was seized vide memo (Ex.PW-4/A). The recovered currency notes were kept in a sealed pullanda which was seized with the seal of ' DSB' and it was deposited at the Malkhana. Investigation concluded and charge-sheet was put to the court. Copies of the charge-sheet were supplied to all the accused and charge under section 392 IPC read with Section 34 IPC was framed against them to which they pleaded ' not guilty' and claimed trial.
Witnesses examined
4. Nine prosecution witnesses were examined.
Eye-witnesses PW-2 Inder Bhan Pandey (Complainant) PW-1 Uday Bhan Pandey (Brother of complainant) FIR No.662/1995 State Vs Mohd. Hussain & Ors. Page 3 of 11 Formal Witnesses PW-3 Ct. Mahmood Khan (DD Writer) PW-6 ASI Jagdish (Duty Officer) Witnesses of arrest and investigation PW-4 HC Tilomani Bhat Police officials who reached the spot PW-8 Ct. Joginder after receiving information vide DD No.23 PW-9 SI Diwan Singh PW-5 HC Jagmal (Police official from PCR Van/witness of arrest) PW-7 Ct. Ravinder (Police official who initially apprehended the accused at the spot)
5. Separate statements of accused were recorded under Section 313 Cr.P.C wherein all of them denied the incriminating evidence and took defence of false implication. Accused Noor Mohd. stepped into the witness box as DW-1 and deposed that he used to run a small shop from a pavement near the spot. He stated that police officials falsely implicated him in the present case by planting recovery of the robbed amount. He mentioned that in fact, the amount shown to have been recovered from his possession was the cash collected by him as sale proceeds.
Arguments
6. I have heard the arguments advanced by Ld. APP for State and Ld. Defence Counsel and have perused the record.
7. Ld. Defence Counsels have argued that accused have been falsely implicated in the present case. It has been their common line of argument that the statement of complainant is not reliable. Counsels have contended that the statement of complainant and his brother contains material contradictions and the FIR No.662/1995 State Vs Mohd. Hussain & Ors. Page 4 of 11 same is to be discarded. It has been argued by them that recovery is doubtful as efforts were not made to join independent witnesses. Counsel of Mohd. Hussain argued that complainant has deliberately concealed the fact that there was an old dispute between him and this accused. He contended that complainant has falsely implicated Mohd. Hussain and other accused persons to settle his score. It has been argued by the counsels that complainant was on close terms with the police officials of local police station who have falsely implicated the accused. On the force of these arguments, Counsel have prayed that accused should be acquitted.
8. On the other hand, Ld. APP for the State has argued that charge of robbery stands proved against accused persons. He contended that although, there are minor contradictions in the testimony of complainant, but the same are inconsequential. He submitted that the testimony of complainant and his brother should not be discarded merely because public witnesses were not joined by the Investigating Officer. He argued that reluctance of general public to join investigation can not be ignored while appreciating the arguments of defence about the absence of public witnesses. He contended that accused persons were apprehended from the spot itself and the recovery stands proved. He contended that prosecution' s case stands established beyond reasonable doubt.
Brief reasons for decision
9. I have perused the record in the light of respective arguments.
10. The entire case of prosecution rested upon the testimony of complainant (PW-2) and his brother Uday Bhan Pandey (PW-1). Ld. Defence Counsel has attacked the testimony of complainant primarily on the ground that he FIR No.662/1995 State Vs Mohd. Hussain & Ors. Page 5 of 11 has suppressed material facts having bearing on the case. He argued that complainant has concealed that there was some previous dispute between him and Mohd. Hussain and this concealment casts serious doubt over his credibility. He has challenged the testimony of Uday Bhan Pandey (PW-1) arguing that he has not supported recovery. It has been argued by the defence counsel appearing on behalf of Noor Mohd. and Mehboob Alam that this witness has failed to identify them. Ld. APP for the State has countered the arguments of defence mentioning that there are only minor contradictions in the testimony of complainant and his brother. Let us peruse the record in the light of these respective arguments.
11. Complainant (PW-2) gave a detailed account of incident mentioning that accused robbed him while he was standing on the pavement of C.F.Road, Paharganj, New Delhi. He stated that he collected a green colour polythene bag containing cash amount of Rs.24,000/- (Rupees Twenty-Four Thousands only) from his brother and while they were standing at C.F.Road, accused persons came and robbed him. He stated that Mohd. Hussain and Noor Mohd. removed the green colour polythene bag while the other two accused caught hold of him and his brother. It is his version that after robbing him, all the accused started running away from the spot. He stated that he raised an alarm and on hearing this alarm, one sikh police official and a constable came there and started chasing the accused persons. He mentioned that all the accused entered a house and locked it from inside. He stated that police officials could manage to apprehend Mohd. Hussain, Noor Mohd. and Memboob Alam after climbing on the roof of the house while Sumer Parbat was found standing outside the house. He mentioned that a sum of FIR No.662/1995 State Vs Mohd. Hussain & Ors. Page 6 of 11 Rs.24,000/- (Rupees Twenty-Four Thousands only) was recovered from the possession of Mohd. Hussain. The purportedly recovered currency was produced from the malkhana and it was identified by the witness as Ex.P1 to P3. Record shows that the version of complainant about the arrest of accused is in sharp contrast with his earlier statement given to the police. He stated in his earlier statement that at the time when the accused persons were running away from the spot, HC Daljeet Singh and Ct. Ravinder Malik apprehended them and recovered the polythene bag containing cash amount of Rs.24,000/- (Rupees Twenty-Four Thousands only) from the right hand of Mohd. Hussain. In the statement given in the court, complainant mentioned that after committing the offence, all the accused fled away from the spot and took shelter in a house located near the spot. He stated that all the accused except Sumer Parbat entered the house and locked it from inside. His version depicts that police officials apprehended the accused persons from the house in which they entered after committing the offence. The variation in the testimony of complainant and his earlier statement made to the police raises doubt over his veracity.
12. Let us peruse the testimony of brother of complainant. Uday Bhan Pandey (PW-1) stated that while he was standing at C.F.Road alongwith his brother, 8-10 persons came there and they all started fighting with his brother. He stated that one of those persons caught hold of him and removed polythene bag containing cash amount of Rs.24,000/- (Rupees Twenty-Four Thousands only) from the pocket of his brother. He also mentioned the same story that accused persons ran away from the spot and entered a house. He stated that police officials FIR No.662/1995 State Vs Mohd. Hussain & Ors. Page 7 of 11 apprehended four persons from the house but he can only identify two of them. He identified Mohd. Hussain and Sumer Parbat amongst four persons who were purportedly apprehended by the police from the house. In regard to recovery, this witness seems to have suggested that he heard that robbed money was recovered from the possession of accused persons. He stated that he can not identify the other two persons as they were part of huge crowd. Record shows that there are glaring contradictions and discrepancies in the testimony of this witness when it is read in the light of narration given by the complainant. Complainant stated that accused Sumer Parbat was found standing outside the house but his brother has not stated so. Complainant mentioned that while he was standing on the pavement of C.F.Road, accused persons came there and caught hold of him while his brother has mentioned that there were around 8-10 persons and two of the accused persons (identified by him) were amongst those persons. These contradictions have raised doubt over the authenticity of prosecution' s case.
13. Further, Uday Bhan Pandey (PW-1) admitted during his cross examination that accused Mohd. Hussain used to run a shop from the pavement near the spot. He admitted that there was some old dispute between his brother and Mohd. Hussain. Although, complainant also admitted during his cross examination that accused Mohd. Hussain was known to him but remained absolutely silent about the old dispute. The testimony of Uday Bhan Pandey has revealed that complainant and Mohd. Hussain were on inimical terms as some old dispute was pending between them. In such circumstances, the testimony of complainant has to be read with suspicion. Complainant has deliberately concealed the fact that there FIR No.662/1995 State Vs Mohd. Hussain & Ors. Page 8 of 11 was an old dispute between him and Mohd. Hussain. This concealment goes to the root of prosecution' s case as it raises question-mark over the veracity of complainant' s statement.
14. Admittedly, no independent witness was joined during investigation. It is not that in every case, the prosecution' s version should be doubted or rejected merely because public witnesses have refused to join investigation. I agree with the arguments of Ld. APP that reluctance of general public to join investigation has to be kept in mind while appreciating the arguments of defence about the presence of public witness. What is called for is not that invariably, in all cases, the prosecution' s case must be supported with the testimony of independent witness. What is required is that the police officials should have made sincere efforts to join public witness. In the present case, since the parties were on inimical terms with each other, therefore, corroboration from an independent source was warranted. Record shows that police officials did not make any effort to join independent witness during investigation. ASI Tilomani (PW-4) admitted in his cross examination that there were number of shops near the spot. HC Jagmal (PW-5) stated that the landlord of the house, where the accused were hiding, prevented police officials from going inside. He stated that the landlord was not requested to join investigation. It has been one of the main line of defence of all the accused that police officials used to demand money and they falsely implicated them in the present case when they failed to scum to their illegal demands. Defence has also argued that there was proximity between complainant and police officials and this fact was admitted by the complainant during his cross FIR No.662/1995 State Vs Mohd. Hussain & Ors. Page 9 of 11 examination. In these proved circumstances, I am of the considered opinion that it would be grossly unfair to record a finding of conviction on the basis of uncorroborated testimony of complainant. Indeed, reliance could have been placed on the testimony of complainant, in case, it would have been coherent. As observed in the preceding paras, there are number of contradictions and discrepancies in the testimony of complainant. In fact, the complainant concealed material facts about the previous dispute between him and Mohd. Hussain. These circumstances make the testimony of complainant unreliable.
15. In a criminal trial, prosecution is duty bound to establish its case beyond reasonable doubt by leading independent and cogent evidence. It must be proved that in all probabilities, the offence was committed by the accused. In case of any doubt, benefit has to be given to the accused. Record reveals that the testimony of police officials also contains various contradictions. Recovery is stated to have been made by HC Daljeet Singh and Ct. Ravinder but record shows that testimony of Ct. Ravinder is incomplete while HC Daljeet has not been examined. The cross examination of Ct. Ravinder was deferred on 30.05.2005 but subsequently, this witness did not step into the witness box. The incomplete testimony of this witness has to be rejected. The testimony of complainant and his brother does not inspire confidence and the recovery has also not been proved. Complainant has concealed various material facts having bearing on the prosecution' s case. He has deliberately concealed the fact about previous dispute with Mohd. Hussain and the said concealment has raised serious question-mark over his credibility. His brother Uday Bhan Pandey has failed to reveal details FIR No.662/1995 State Vs Mohd. Hussain & Ors. Page 10 of 11 about the recovery of cash. These witnesses have given contradictory versions and there are discrepancies in their statements. Their testimony is not reliable and it would be unsafe to base a finding of conviction on their uncorroborated testimony. I am of the considered opinion that this is a fit case where the benefit of doubt should be extended to all the accused persons. Accordingly, accused Mohd. Hussain, Noor Mohd., Mehboob Alam and Sumer Parbat stand acquitted of the charge under Section 392 IPC read with Section 34 IPC.
16. File be consigned to record room after necessary compliance.
Announced in open Court (Sudhanshu Kaushik)
on this day of 10.02.2015 ACMM-01 (Central)
Tis Hazari Courts,Delhi
It is certified that this judgment contains 11 (Eleven) pages and each page bears my signatures.
(Sudhanshu Kaushik) ACMM-01 (Central) Tis Hazari Courts,Delhis FIR No.662/1995 State Vs Mohd. Hussain & Ors. Page 11 of 11