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[Cites 13, Cited by 0]

Delhi District Court

Sc No. 194/19; Fir No. 152/17; Ps. ... vs . Nawab @ Sameer Page No. 1 Of 13 on 8 April, 2019

                                                   -1-


                  IN THE COURT OF SH. SANJEEV AGGARWAL
                      ADDL. SESSIONS JUDGE­02, NORTH
                           ROHINI COURTS, DELHI

     STATE CASE No........................................... 194/19

                                                               FIR No. 152/17
                                                               PS : Mahindra Park
                                                               U/s: 399/482/402 IPC &
                                                               174­A IPC
     State
                            Versus

     Sameer @ Nawab
     S/o. Sh. Manwar Khan
     R/o. D­1/105, JJ Colony,
     Bhalaswa Dairy, Delhi

                                        Date of institution of
                                        supplementary charge sheet:28.02.2019
                                        Judgment reserved on      :08.04.2019
                                        Judgment delivered on     :08.04.2019

     ORDER/JUDGMENT:                               Accused is acquitted of the
                                                   offence(s) u/S. 399/482/402 IPC,
                                                   however, convicted for the
                                                   offence(s) u/S 174­A IPC.

     JUDGMENT

1. Brief facts, as stated in the charge sheet are that on 03.06.2017 SI Gajender Singh received DD No. 10A, on which he along with Ct. Mohan Lal reached the spot i.e. SBI Chowk, Jahangir Puri, Delhi, SC No. 194/19; FIR No. 152/17; PS. Mahindra Park State Vs. Nawab @ Sameer Page No. 1 of 13 -2- where he met with ASI Dayanand along with other staff. The said ASI produced the accused Sonu Saini along with Baseball bat, accused Ravi Singh along with wooden danda, Ct. Sunil produced Parul along with iron rod, Ct. Ajeet produced accused Mukesh along with loaded katta and told that all the accused persons were apprehended at the spot and had gathered with the intention to commit dacoity and also informed that the accused persons were hiding themselves in car no. HR­10R­1810.

SI Gajender Singh requested 4­5 passersby to join the investigation, who all refused and left the spot after disclosing their problems. IO unloaded the said katta and prepared its sketch and also conducted measurements of all the recovered weapons. All the recovered weapons were seized.

On search of the said car, one number plate bearing no. DL­ 13CAF­8978, which was also bearing no. HR­10G­7298 on its other side, was recovered. Two brown colour files were also recovered from the said car, out of which on one file, titled Delhi Police and on the other file, titled Crime and Railways Delhi Police. It was discovered that the said car was stolen from the area of PS Bhalswa Dairy regarding which E­FIR No. 014068/17 had been lodged there.

On interrogation, the accused persons disclosed the name of their another accomplice namely Nawab @ Sameer, with whom they had robbed the said car. IO recorded the statement of ASI Dayanand which reads as under:

SC No. 194/19; FIR No. 152/17; PS. Mahindra Park State Vs. Nawab @ Sameer Page No. 2 of 13 -3- That on the night of 02.06.2017 from 8:00 pm till 8:00 am on 03.06.2017, he was on patrolling duty along with ASI Surender on ERV gypsy no. DL­1CM­4586. At about 4:30 am, he received message from DO, PS Mahendra Park to reach to Ct. Ajeet at I­J Block, Jahangir Puri, Delhi, as he had information of some mischievous elements in the area.
Accordingly, they went there and met Ct. Ajeet, Ct. Sunil on motorcycle along with secret informer at Bhalswa T point. The said secret informer told them that one notorious person namely Nawab along with his four other accomplices had come in a white colour Santro car to commit dacoity.
On this ASI requested 4­5 passersby to join the investigation, who all refused and left the spot after disclosing their problems. Thereafter, he prepared the raiding party including the above police officials and went in search of said Santro car at Mangal Bazar Road, SBI Chowk, Jahangir Puri, where the secret informer after pointing towards car no. HR­10R­1810, went away from there. The raiding party members surrounded the said car and asked the accused persons to come out from the car. On this, the said SC No. 194/19; FIR No. 152/17; PS. Mahindra Park State Vs. Nawab @ Sameer Page No. 3 of 13 -4- accused persons tried to run away from the car after opening its door, and one of them ran away after pushing the members of the raiding party, whose name revealed as Nawab @ Sameer.
The other accused persons were apprehended by the raiding staff members. From possession of accused Sonu Saini, baseball bat was recovered, from accused Ravi Singh, wooden danda was recovered, from accused Parul, iron rod was recovered and from accused Mukesh one loaded katta was recovered. The information was passed on to the PS Mahendra Park.

2. SI Gajender Singh prepared a rukka and got the present FIR registered through Ct. Ajeet u/s 399/402/411/482 IPC & 25/54/59 Arms Act.

3. Initial investigations were taken up. The sketch memo(s) of the weapons recovered from possession of the co­accused persons (since acquitted) were prepared and the same were also seized vide separate pulindas after measuring them. The accused persons were arrested and their separate disclosure statements were recorded. The statement of the witnesses were recorded by the IO u/S. 161 CrPC.

SC No. 194/19; FIR No. 152/17; PS. Mahindra Park State Vs. Nawab @ Sameer Page No. 4 of 13 -5- On completion of investigations, a charge sheet u/S. 399/402/482 IPC & 25/54/59 Arms Act was filed in the Court against co­accused persons namely Sonu Saini, Ravi Singh, Mukesh @ Mukku and Parul Kumar.

During investigation efforts were made to effect the arrest of accused Nawab @ Sameer and initially NBWs and thereafter process u/s 82/83 Cr.P.C. was obtained against accused Nawab @ Sameer. Accused Nawab @ Sameer was declared proclaimed offender. After the arrest of accused Nawab @ Sameer, supplementary chargesheet was filed.

4. On committal of the case to the Court of Sessions, vide order dated 28.02.2019, charge(s) u/s 399/482/402/174A IPC was framed against accused Nawab @ Sameer to which he pleaded not guilty and claimed trial.

5. Thereafter, prosecution in support of its case has examined 4 witnesses :

a) PW1 is ASI Dayanand, who had received the secret information and had prepared the raiding party. He has proved the sketch memo of the recovered country made katta and cartridge as well as their seizure memos.
b) PW2 is ASI Surender Singh, who had joined the police raiding SC No. 194/19; FIR No. 152/17; PS. Mahindra Park State Vs. Nawab @ Sameer Page No. 5 of 13 -6- party and proved the memos, as proved by PW1.
c) PW3 is ASI Kamaljeet, who has deposed that on 14.12.2018, he was posted at PS Mahendra Park. On that day, further investigation of the present case was marked to him, as accused Sameer @ Nawab was arrested in a kalandra u/s 41.1 (c) Cr.P.C. at PS Bhalaswa Dairy as he was proclaimed offender in the present case.

He also deposed that on 15.12.2018, he visited PS Bhalaswa Dairy and met HC Anil Kumar and collected copy of kalandra u/s 41.1

(c) Cr.P.C. Ex. PW3/A. On the same day, he moved an application for the production warrants of accused Sameer @ Nawab.

He also deposed that on 17.12.2018, he had effected the arrest of accused Sameer @ Nawab after seeking permission from the concerned Ld. ACMM vide arrest memo Ex. PW3/B. His personal search was also conducted vide memo Ex. PW3/C. Accused Sameer @ Nawab also made disclosure statement Ex. PW3/D. He also exhibited the order dated 19.09.2018 passed by Ld. ACMM vide which accused Sameer @ Nawab was declared P.O. as Ex. PW3/E. He also exhibited the statement of SI Gajender Singh, who executed processes u/s 82 and 83 Cr.PC. in respect of accused Sameer @ Nawab as Ex. PW3/F and Ex. PW3/G.

d) PW4 is SI Gajender i.e. IO of the case, who has deposed about the investigations carried out by him during the course of the present SC No. 194/19; FIR No. 152/17; PS. Mahindra Park State Vs. Nawab @ Sameer Page No. 6 of 13 -7- case. He also deposed that during investigation efforts were made for the search of Nawab @ Sameer. He had also obtained NBWs and thereafter process u/s 82/83 Cr.P.C. against accused Sameer @ Nawab. He exhibited his statement as process server as Ex. PW3/F and Ex. PW3/G.

6. Statement of accused Sameer @ Nawab u/S 313 Cr.P.C. was recorded separately in which the entire incriminating evidence appearing against him was put to him, in which the defence of the accused was that he even do not know the remaining accused persons and he had been falsely declared proclaimed offender and despite his arrest, no judicial TIP was got conduced from any of the witnesses of the raiding party. He also stated that the entire evidence appearing against him was incorrect. He however, chose not to lead evidence in his defence.

7. I have heard Ms. Hema Goyal, Ld. counsel for accused and Sh.

Pankaj Bhatia. Ld. Addl. PP for the State.

8. The Ld. Addl. PP for the State has argued that prosecution has been able to prove its case u/s 399/482/402 IPC & 174A IPC, as the police officials, who had joined the raiding party and examined in the court have totally supported the prosecution story regarding the time, place and manner of the incident as well as identity of accused. He SC No. 194/19; FIR No. 152/17; PS. Mahindra Park State Vs. Nawab @ Sameer Page No. 7 of 13 -8- further submits that it has been proved that accused alongwith his associates had hidden themselves in a Santro car bearing no. HR­ 10R­1810 for the purpose of committing dacoity after making preparation for the same. He further submits that there is sufficient evidence on record to convict the accused for offence(s) punishable u/s 174A IPC as well.

9. On the other hand, Ld. Defence Counsel has argued that there are number of material contradictions / improvements in the testimonies of the prosecution witnesses which shows that the entire prosecution story is false. She has also argued that the prosecution evidence is not supported by any scientific investigations, as the finger prints from the said katta were not taken. She further submits that no public witness was joined, despite the availability, where the accused persons were allegedly planning or making preparation for committing dacoity being a public place. She further submits that no judicial TIP of accused has been got conduced from any of the members of the raiding party during investigation. She further submits that accused has wrongly been declared as proclaimed offender and thus, accused Nawab @ Sameer is liable to be acquitted in respect of charge(s) framed against him.

10. I have gone through the rival contentions.

SC No. 194/19; FIR No. 152/17; PS. Mahindra Park State Vs. Nawab @ Sameer Page No. 8 of 13 -9-

11. PW1 ASI Dayanand has reiterated the prosecution story, mentioned above, in material particulars, regarding the time, place and manner of constitution of raiding party, receipt of secret information, the apprehension of the co­accused persons from the spot along with the recovery of katta and other articles from the possession of the co­accused persons, while they were planning to commit dacoity.

The testimony of PW1 is corroborated by the testimony of PW4 SI Gajender and PW2 ASI Surender, regarding the time, place and the manner of the incident, as also regarding the identity of the accused persons as well as regarding the constitution of the raiding party, receiving of secret information, as well as recovery of weapons effected from the possession of the co­accused persons.

12. However, it is settled law that life and liberty of an individual cannot be curtailed except following due process of law and in the present case the prosecution has to satisfy that the accused persons were indeed planning to commit dacoity as projected in the prosecution story, and regarding the recovery of weapon(s) and other articles from their possession to implement the said plan.

13. That it is relevant to mention over here that as per the case of the prosecution none of the members of the raiding party were knowing SC No. 194/19; FIR No. 152/17; PS. Mahindra Park State Vs. Nawab @ Sameer Page No. 9 of 13 -10- accused Nawab @ Sameer. It is the case of the prosecution that accused Nawab @ Sameer managed to run away from the place of occurrence. Thus, it was incumbent upon the investigation agency to establish the identity of accused Nawab @ Sameer through judicial TIP from the members of raiding party, but the record reveals that no judicial TIP of accused Nawab @ Sameer has been got conduced from any of the members of the raiding party during investigation.

During cross­examination, PW4 SI Gajender has admitted that the name of accused Nawab @ Sameer had only appeared in the disclosure statements of co­accused persons.

During cross­examination, PW3 ASI Kamaljeet who had conduced investigation in respect of accused Nawab @ Sameer has categorically admitted that he had not moved any application for judicial TIP of accused Nawab @ Sameer to establish his identity from any of the witnesses of raiding party. Thus, the very presence of accused Nawab @ Sameer at the place of occurrence is doubtful and in these circumstances the benefit of doubt ought to be given to accused Nawab @ Sameer.

14. The prosecution has failed to prove planning of dacoity beyond doubt. Firstly, as I.O. PW4 SI Gajender and other witnesses have admitted that no public witness was joined in the recovery proceedings or at the time of arrest of the co­accused persons and no action was also taken against those persons, who refused to join SC No. 194/19; FIR No. 152/17; PS. Mahindra Park State Vs. Nawab @ Sameer Page No. 10 of 13 -11- the same.

Further, during investigation, the IO had not obtained the call details of the respective mobile numbers of co­accused persons as well as of accused Nawab @ Sameer or the cell I.D. location of the said mobile phones. The same would have been best piece of scientific evidence to nail down the location of the accused Nawab @ Sameer at the place of occurrence. Further, PW1 ASI Daya Nand had sufficient time even to videograph from distance even on his mobile phone regarding the presence of accused Nawab @ Sameer at the said place while planning to commit dacoity, which would have been best piece of evidence to corroborate their story.

Further, it has also not come in the evidence of any of the prosecution witness regarding the specific plan being hatched by the accused persons and the specific person, whom they were planning to commit dacoity with.

15. These facts as a whole makes the prosecution case highly improbable. In view of the aforesaid deficiencies in the prosecution story, as discussed above, it would be highly unsafe to convict the accused on the basis of uncorroborated testimonies of the police officials alone, which is also not backed by any scientific evidence and independent corroboration, which was clearly available to them, but was not used for the reasons best known to them.

SC No. 194/19; FIR No. 152/17; PS. Mahindra Park State Vs. Nawab @ Sameer Page No. 11 of 13 -12-

16. From the aforesaid analysis of evidence, the probative force of the prosecution evidence as a whole, is touching the point of uncertainty on the scales, where probability of happening of any event is assessed or measured, at the same time, the defence version is having more probative force than the prosecution evidence, as a whole. Therefore, on this kind of ambivalent evidence, the accused cannot be convicted. As a consequence, accused Nawab @ Sameer stands acquitted of the charge(s) u/S. 399/482/402 IPC.

17. Now so far as offence(s) u/s 174A IPC is concerned, the prosecution during trial has examined PW4 SI Gajender, who had categorically deposed that during the course of investigation of the present case, efforts were made for the search of accused Nawab @ Sameer, but in vain and he had obtained NBWs and thereafter process u/s 82/83 Cr.P.C. against accused Sameer @ Nawab. He exhibited his statement as process server as Ex. PW3/F and Ex. PW3/G. During trial, the prosecution has also examined PW3 ASI Kamaljeet, who has exhibited the order dated 19.09.2018 passed by Ld. ACMM as Ex. PW3/E vide which accused Nawab @ Sameer was declared proclaimed offender. No plausible explanation has been given by accused during trial as to why he failed to appear before the SC No. 194/19; FIR No. 152/17; PS. Mahindra Park State Vs. Nawab @ Sameer Page No. 12 of 13 -13- court concerned after the proclamation of process u/s 82 Cr.P.C. During trial, the accused has not disputed that he had not been residing at the given address, in fact, during statement of accused the accused Nawab @ Sameer has disclosed his address as D­ 1/105, JJ Colony, Bhalaswa Dairy, Delhi, which is the same address on which proclamation u/s 82 Cr.P.C. was issued by the concerned court.

18. In view of the aforesaid, I am of the considered view that the prosecution has successfully proved the charge(s) under Section 174(A) IPC beyond shadow of reasonable doubt. Therefore, the accused Sameer @ Nawab stands convicted for the offence under Section 174­A IPC, whereas the said accused stand acquitted for the offence(s) u/S. 399/482/402 IPC.

Announced in the open Court (Sanjeev Aggarwal) on this 08th day of April 2019. Addl. Sessions Judge­02,North Rohini Courts, Delhi/08.04.2019 SC No. 194/19; FIR No. 152/17; PS. Mahindra Park State Vs. Nawab @ Sameer Page No. 13 of 13