Delhi District Court
State vs 1. Mohd. Tasleem on 24 December, 2018
IN THE COURT OF SH. SUDESH KUMARI,
ADDITIONAL SESSIONS JUDGE05 SHAHDARA,
KARKARDOOMA COURTS, DELHI.
SESSIONS CASE No. 05/17 (I.D. No. 78/16)
FIR No. 197/13
P.S. Anand Vihar
U/s 395/397/452/506/412/34 IPC, 25/54/59 A. Act
& 14 Foreigners Act.
State Versus 1. Mohd. Tasleem
S/o Abdul Wahid
R/o Village Virdo Nongli
PS Kiratpur, Distt. Bijnaur U.P.
2. Badshah
S/o Jainul
R/o Village Dhan Sagar
P.S. Maural Ganj,
District Bagerhut Bangla Desh.
3. Ansar
S/o Shafiq
R/o Vill. Sarai Imma,
P.S. Kiratpur, Distt. Bijnaur, U.P.
(Proclaimed Offender)
Date of institution : 12092013
Date of arguments : 20122018
Date of Judgment : 24122018
JUDGMENT
The case of the prosecution, in brief, as per charge sheet is that on 27052013 on receipt of DD No. 7A SI Narender Kumar State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 1 of 44 pages alongwith Ct. Rajesh went to the place of occurrence at D53 Ground Floor, Anand Vihar, Delhi where complainant Dimple Kohli met SI Narender Kumar. SI Narender Kumar inspected the spot and saw that the window of the left side of the Drawing Room on the Ground Floor was opened and the iron grill had been taken out and kept aside and the inside latch of the inside door of Drawing Room was partly broken and the doors of the three rooms were opened and Almirah kept in those three rooms were also lying opened and the articles kept in the Almirah were lying here and there and complainant made her statement to SI Narender Kumar to the effect that she is residing at the said address with family and she is a Teacher at Bharat National Public School, Ram Vihar. She was present in her house on 2605 2013 alongwith her daughter Gunisha Kohli aged about 20 years and at about 2.15 a.m. both of them were sleeping in their bedroom. Her daughter Gunisha woke up and opened the door of the bed room to go to drink water and she saw 45 persons who had tied their faces, on seeing them her daughter shouted and on hearing the screams of her daughter, she also woke up and by that time 45 persons entered her room and they tied her hands and the hands of her daughter after tearing the bedsheet and also tied their mouths with bedsheet and threatened them that if they raised noise they would be killed. She stated that one person was aged about 40 years and was the tallest amongst them and his hair were Mehndi colour with fair complexion and he was armed with a pistol type weapon. The other four persons State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 2 of 44 pages were aged about 2022 years and two persons were armed with long knives used to cut Coconut and she did not see any weapon with the other two persons. She stated that one person who was having a knife was standing beside her and her daughter and the other four persons had taken out jewellery and cash and other valuable articles kept in the Amirahs in the rooms. Dimple Kohli further stated that those persons had locked her and her daughter in the room and threatened them not to disclose about the incident to anybody otherwise they would kill them and left the house alongwith articles at about 4.00 am. She has further stated that at about 6.30 am she and her daughter after much efforts freed themselves and untied their hands and came outside and informed the neighbourers and saw that the glass in the window grill of the Drawing Room near the main gate was kept aside and the latch (Chatkani) of the internal gate of the Drawing Room was broken and on checking the articles it was revealed that 2 Laptop make SAMSUNG and VIVO, 1 Handi Camp Camera make SONY, 2 Digital Cameras make NIKON, 4 Ladies Watches, 7 Gold Rings, 1 Gold Chain, 2 Diamond Tops, 1 Mobile Phone No. 9818088773 make SAMSUNG GALEXY having IMEI No. 359462040367145, 1 Gold Neck Pendant were found stolen and she has also stated that apart from the other articles if something else was also found to be stolen then a separate information would be given.
She has further stated that during the incident, three persons who had concealed their faces became visible after the State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 3 of 44 pages handkerchief tied on their faces slipped down and that she could identify those three persons if shown to her and that she could also identify the stolen articles if shown to her and requested that her stolen articles be searched and legal action may be taken against the culprits. SI Narender got the case registered U/s 395/397/452/34 Indian Penal Code and started the investigation. SI Narender, IO of the case, called the Crime Team and got the spot inspected and also got the spot photographed and after inspection the Crime Team Investigation Report was handed over to SI Narender. At the pointing out of the complainant IO SI Narender prepared site Plan and IO also seized one bedsheet which was torn into five pieces which were used to tie the hands of the complainant and her daughter which was of red, black and creme colour, the five pieces were taken into possession and converted into a pullanda and sealed with the seal of NK and the pullanda was taken into possession vide seizure memo. Statement of witnesses U/s 161 Cr.P.C. were recorded. The case property was deposited in the malkhana.
On 28052013 FSL team inspected the spot and on 29052013 complainant was joined in the investigation and sketch portrait of the suspects were got prepared in CRO/office, Kamla Market.
On 06062013 accused Tasleem S/o Abdul Wahid R/o Village Virdo Nangli, PS Kirtapur, District Bijnor, UP was arrested at the pointing out of the secret informer from Anand Vihar Bus State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 4 of 44 pages Terminal accused Tasleem was interrogated and he confessed his guilt and a separate confessional statement of accused Tasleem was recorded and I.Card UTI Bank and International Debit Card, one Visiting Card Krishna Diagnostic Lab, Rs. 1200/ in cash with one black colour purse on the inside of which 1191 was written were recovered from the accused Tasleem which were the part of the stolen property. SI Narender kept the recovered articles in the same purse and a pullanda was prepared after keeping it in a white cloth and the pullanda was sealed with the seal of NK and the same was taken into possession.
In the confessional statement accused had admitted that the katta used in the incident had been kept by him in his house, he could get the same recovered. Accused Tasleem also pointed out and identified the place of occurrence i.e. D53, Ground Floor, Anand Vihar on which SI Narender prepared a site pointing out memo and thereafter case property was deposited in the malkhana.
Accused Mohd. Tasleem was produced in the court on 07062013 and three days police remand was obtained i.e. till 1006 2013 and accused Mohd Tasleem was kept in muffled face and an application for TIP of the accused was presented in the court of Ld. ACMM which was fixed for 22062013.
On 10062013 during investigation accused Mohd. Tasleem got recovered a katta used in the incident from near Anand Vihar Railway Station bushes under the grass and told the IO that this State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 5 of 44 pages was the same katta which was used in the commission of the Dacoity in the residential house in Anand Vihar. The recovered katta was opened with the help of button and checked and it was found to contain one cartridge in its barrel. SI Narender prepared sketch of the katta and cartridge on a white paper and the katta and cartridge were measured and thereafter katta and cartridge were kept in a white cloth and converted into pullanda and sealed with a seal of NK and taken into possession vide seizure memo. Supplementary confessional statement of accused Mohd. Tasleem was recorded in which accused Mohd. Tasleem disclosed that a katta was not kept in his house but the same was kept near Anand Vihar Railway Station under the grass in the bushes. Accused was informed that his TIP was fixed for 26062013 and that he should remain in muffled face. SI Narender prepared a site plan regarding the recovery of the katta and the recovered case property was deposited in the malkhana through seizure memo and accused was produced in the court and was remanded to JC.
TIP of accused could not be held on 22062013 and the TIP of accused Mohd. Tasleem was conducted on 25062013 in Tihar Jail. Accused Mohd. Tasleem during the proceedings of TIP was identified by Dimple Kohli and copy of TIP was obtained from the concerned court on 26062013. On 03072013 an application for TIP of case property was moved in the court of Ld. ACMM which was fixed for 06072013.
State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 6 of 44 pages On 06072013 TIP of the case property could not held and it was fixed for 15072013.
On 09072013 SI Narender went out of station in search of accused Badshah S/o Jainul. On secret information accused Badshah was arrested from Village Hari Nangla PS Kunwar Gaon, District Badayun (UP) from the house of his brother in law (Sadu) at the pointing out of the secret informer and was arrested in the present case.
Accused Badshah S/o Jainul R/o Village Dhansagar PS Moral Gunj, District Bagrehat, Bangladesh was personally searched and one Nokia Phone was recovered from his wearing pant pocket having IMEI No. 358658017813489. The said recovered Nokia Mobile Phone was found to be wanted in Case FIR No. 141/13 PS Preet Vihar. The said recovered Mobile Phone was kept in a white cloth converted into a pullanda and duly sealed with a seal of NK and the pullanda was taken into possession U/s 102 Cr.P.C.
A separate disclosure statement of accused Badshah was recorded wherein he disclosed that out of the looted articles Rs. 1300/ came to his share which he had spent. SI Narender deposited the recovered case property in the malkhana and accused was remanded to JC.
On 11072013 accused Badshah was produced from Tihar Jail in Karkardooma Court in muffled face as the TIP of the accused was to be held, accused was asked if he is willing to join the State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 7 of 44 pages TIP proceedings but accused refused to participate in TIP proceedings.
On 15072013 accused Badshah on production warrants was produced in Karkardooma Court and three days police custody remand was obtained. Complainant identified the case property during TIP proceedings and complainant while being present in the court also identified accused Badshah. Statement of the complainant U/s 161 Cr.P.C. was recorded. During PC remand of accused Badshah S/o Jainul he pointed out towards his tenanted house at B117, T Camp, Govindpuri, Delhi and identified his house and from inside the house produced one Necklace, one Bracelet, two ear jhumkas, two tops which were all artificial jewellery and one square ladies wrist watch and produced before the IO and stated that out of the looted articles, the articles produced by him were came in his share, the recovered articles were kept in a white cloth and a pullanda was prepared the said pullanda was sealed with the seal of NK and the same was taken into possession by the police and recovered case property was deposited in the malkhana and on 18 072013 accused Badshah was remanded to JC.
On 23072013 the recovered case property from accused Badshah was put to the Complainant in Karkardooma Court during TIP proceedings and the recovered articles were identified by the complainant and SI Narender obtained the copy of the TIP proceedings and attached with the file.
State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 8 of 44 pages NBWs against coaccused Ansar S/o Shafeeq R/o Village Sarai Imma, PS Kiratpur District Bijnor (UP) were obtained from Karkardooma Court on 31082013 and separate proceedings were started in respect of coaccused Ansar. The other coaccused Abbu Shahid @ Master and Rana could not be found in the absence of their residential addresses and separate proceedings qua these coaccused would be carried out and supplementary challan will be filed in the court.
Accused Mohd. Tasleem S/o Abdul Wahid R/o Village Birdo Nangli, PS Kiratpur, District Bijnor (UP) and accused Badshah S/o Jainul R/o Village Dhan Sagar, PS Moral Ganj, District Bagrehat, Bangladesh were chargesheeted as sufficient evidence on record was found against them. The exhibits of the present case were sent to CFSL, CGO Complex, Lodhi Road, New Delhi vide RC No. 198/21/13 on 17072013 and the CFSL result from CGO Complex, Lodhi Road, Delhi has not been obtained and whenever it is obtained, the same would be filed.
Accused Mohd. Tasleem S/o Abdul Wahid and accused Badshah S/o Jainul were chargesheeted U/s 395/397/452/506/412/34 IPC and Section 25/54/59 Arms Act and Section 14 Foreigners Act and charge sheet was filed in the Court for trial of the accused persons.
Ld. Addl. Chief Metropolitan Magistrate Shahdara after compliance of the provision of Section 207 Cr.P.C. i.e. supply of State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 9 of 44 pages copies etc., to the accused persons committed the case to the court of session offence U/s 395/397 Indian Penal Code being triable exclusively by the Court of Session which in turn was assigned to this court for trial of the accused persons.
During the pendency of the matter supplementary charge sheet was filed and FSL result finger print result and permission U/s 39 Arms Act were placed on record.
Ld counsel for the accused persons conceded to framing of charge and a charge U/s 452/395/506/34 IPC was framed against both the accused persons Mohd. Tasleem and Badshah vide order dated 29012014 by the Ld. Predecessor of this court and a separate charges U/s 397 IPC, U/s 412 IPC and 25 Arms Act were framed against the accused Mohd. Tasleem and a separate charges U/s 14 Foreigners Act and U/s 412 IPC were framed against the accused Badshah to which both the accused persons pleaded not guilty and claimed trial and the matter was adjourned for prosecution evidence.
During the pendency of the trial accused Ansar was declared proclaimed offender and a supplementary charge sheet against him was filed which was committed to the Court of Session vide order dated 08.07.2014 by the Ld. ACMM Shahdara which was attached with this file vide order dated 17.07.2014.
Prosecution in order to establish its case against the accused persons examined 24 prosecution witnesses and the prosecution evidence was closed vide order dated 06122017 and State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 10 of 44 pages thereafter matter was adjourned for statement of the accused persons. Statement of the accused persons Mohd Tasleem and Badshah U/s 313 Cr.PC were recorded on 05072018 in which both the accused persons have stated that they are innocent and have been falsely implicated in the present matter and accused Badshah denied that he is a Bangladeshi citizen and stated that his family resides in Badarpur Delhi and both the accused opted not to lead evidence in defence and the matter was adjourned for final arguments.
Final arguments heard. File perused.
PW1 is HC Dinesh Duty Officer who got recorded the FIR No. 197/2013 U/s 395/397/452/34 IPC PS Anand Vihar through computer operator. On receipt of rukka through Ct. Rajesh as sent by SI Narender Kumar. He has proved the copy of the FIR No. 197/2013 PS Anand Vihar as Ex. PW1/A and he has proved endorsement Ex. PW1/B on the rukka and has stated that the same is in his handwriting and same bears his signature at point A and has further stated that after registration of the case he handed over the copy of the FIR and the original rukka to Ct. Rajesh for handing over the same to IO SI Narender Kumar. PW1 has also proved the DD No. 12A Ex. PW1/C regarding starting of registration of the FIR.
PW 2 is Dimple Kohli, (she was examined through V/C). She has deposed that on 26.05.2013 she and her daughter Gunisha were alone in the house and she and her daughter were sleeping together in her bed room. At about 2.00 2.15 am her daughter got up for taking water. On hearing her cries she got up and State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 11 of 44 pages found five persons inside the room. They were having their faces covered with handkerchief upto nose. They were armed with daggers and pistol. They cut their bed sheet into pieces and tied their hands with the pieces of bed sheet. The pieces of the bed sheet were also stuffed into their mouth and their mouth was also tied with the same and the assailants threatened that in case they raise the alarm, they would kill them. One of the assailants who was having dagger continuously stood besides her and her daughter. The other assailants ransacked their house and robbed cash, jewellery namely one gold chain, 10 gold rings, three pendant sets, two pairs of diamond tops, two laptops makes Samsung and Sony Vaio, handicam make Sony, two digital cameras make Nikon, four ladies wrist watches, one Tisso gents watch, one Titan wrist watch, silver utensils, two mobile phones make Samsung Young & Samsung Guru and other valuables. One of the assailants was tall, having mehandi colour hair and fair complexion. He was having the pistol in his hand and was limping. At about 4.00 am the assailants left her house threatening that in case she raised the alarm they would kill them. While the assailants were committing robbery in her house, the handkerchief of three assailants got down upto their neck and she could see their faces. She has further deposed that they were so scared that she and her daughter kept sitting in the same room till such time that she could notice morning light coming from outside from the window. At about 6.15 - 6.30 am they somehow managed to untie their hands, mouth and feet.
State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 12 of 44 pages On coming to the drawing room she found that the glass and the grill of the drawing room was removed and the chatkani of the door of the drawing room was lying broken. She then came out of her house and went to the house of a neighbourer who is also the friend of her husband.
They informed her husband on telephone about the incident. Perhaps her husband informed the police at 100 number. The police came at the spot. Dog squad and Crime team also came at the spot. She has further deposed that she gave her statement to the police which is Ex.PW2/A and the same bears her signatures at point A. The bed sheet was having red black print on offwhite base. The pieces of the bed sheet was seized by the police vide seizure memo Ex.PW2/B which also bears her signatures at point A. PW2 has identified the accused Mohd Tasleem as the same person who was having revolver in his hand at the time of the incident and she identified accused Mohd Tasleem through Video Conferencing and has stated that she cannot identify the other accused. PW2 had also identified the accused Tasleem in TIP in Tihar Jail.
During the examination of PW2 a sealed envelope bearing the seal of MG lying on record was opened and TIP proceedings of accused Mohd. Tasleem were brought out and the same was shown to the witness through digital visualizer and she identified her signatures at point A on the TIP proceedings State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 13 of 44 pages Ex.PW2/C. PW2 has further deposed that some artificial jewellery robbed from her house were recovered by the police and she identified the same in the TIP proceedings and during the examination of PW2 a sealed envelope bearing the seal of MG was opened and the TIP proceedings of the case property dated 23.07.2013 is brought out and shown to the witness through digital visualizer and she identified her signatures at point A on each page of the TIP proceedings Ex.PW2/D and she has identified the case property produced in the Court i.e. one golden bracelet, one golden necklace, one pair earrings having blue stones, one pair tops having white moti, one wrist watch having silver chain collectively Ex. P1 as the same which were robbed from her house and which she identified during the TIP proceedings and thereafter MHC(M) produced another sealed pullanda bearing the seal of MK. The pullanda was opened and bed sheet torn into five pieces were brought out and shown to the witness and the witness identified the torn pieces of bed sheet as Ex.P2 (collectively) and stated that it was the same bed sheet which was torn and with which their hands, feet and mouth were tied.
During the examination of PW2 the Ld Addl PP for the State sought permission to put a leading question to the witness and the request was allowed and in answer to the leading question by the Ld. Addl PP for the State PW2 stated that it is correct that the second accused present in the Court ( pointed out by the Ld Addl PP towards State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 14 of 44 pages accused Badshah) is also one of the assailants involved in the robbery at her house but PW2 voltd stated that today he is looking different. Further the witness has admitted the suggestion of the Ld APP for the State as correct that on 15.07.2013 she alongwith her husband had come to Karkardooma Court where she identified accused Badshah to be one of the assailants who had come to her house with other assailants.
PW3 is Sh. Praveen Kohli who has deposed that he is a businessman. On 26.05.2013 a dacoity took place at his house in his absence in the presence of her wife and her daughter. He further deposed that next day when he came back, after checking they informed the police about the missing articles. After 3 - 4 days he also informed the police that his old mobile phone make Samsung Guru 200 of black colour and a purse of black colour containing some visiting cards and cash etc. were missing. He gave the IMEI number of his aforesaid mobile phone also to the police. Thereafter, Ld Addl PP for the State put some leading question to the witness and the witness has deposed that it is correct that he gave the aforesaid information to the police on 01.06.2013 and the colour of his mobile phone was black and white and his missing purse also contained a UTI Bank Card and a visiting card of Krishna Diagnostic Lab. He had identified the purse containing the aforesaid articles in the TIP. He identified his signatures at point A on the TIP proceedings Ex.PW3/A and has stated that he can identify his purse and the State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 15 of 44 pages MHC(M) produced a sealed pullanda bearing the seal of MG produced from malkhana which was opened and a black colour purse was brought out which contained a UTI Bank Card, visiting card of Krishna Diagnostic Lab, two notes of Rs.500 and two notes of Rs.100 each and they were shown to the witness and the witness identified his purse, UTI Bank Card, visiting card of Krishna Diagnostic Lab, two notes of Rs.500 and two notes of Rs.100 each as Ex.P3 (Collectively).
PW 4 is SI Karamveer who has deposed that on 27.05.13 he was posted as Incharge Mobile Team, East District, Delhi and on that day on receipt of information from control room, he alongwith staff reached to the spot i.e. D53, Anand Vihar where SI Narender alongwith the staff was already present and as per the directions of SI Narender the photographer HC Ct. Sanjeev took photographs of scene of crime. ASI Sanjay Saxena lifted chance prints from the spot and later on he prepared the SOC result report which is Ex.PW4/A which bears his signatures at point A. PW5 is ASI Sanjay who has deposed that on 27.05.2013, on receipt of wireless message, he along with HC Sanjeev and SI Karambir went at the spot at D53, ground floor, Anand Vihar where they inspected the spot and lifted eight chance prints from the spot. He developed the chance prints and prepared the chance print report which is already exhibited as Exbt. PW4/A and bears his signatures at point B. State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 16 of 44 pages PW6 is HC Sanjeev who has deposed that on 27.05.2013, he was posted as Photographer in Mobile Crime Team East and on that day he along with ASI Sanjay and SI Karambir, I/C Crime Team went at the spot i.e. D53 Anand Vihar and where he took the 13 photographs of the spot from different angles and the same are Exbt. PW6/A1 to A13. He also proved the negatives Ex PW6/A14 to Exbt. PW6/A26 of the photographs.
PW 7 is HC Narender who has deposed that on 10.06.2013 he was posted at PS Anand Vihar as MHC(M). On that day SI Narender handed over him one sealed pullanda duly sealed with the seal of NK with copy of seizure memo. He has further deposed that he deposited the same in malkhana vide entry No. 3001. The case property was sent to FSL on 17.07.13 vide RC No. 198/21/13 through Ct. Deepak. Ct. Deepak deposited the same at CFSL Lodhi Colony and handed over him the receipt and he produced the register No.19 and proved the copy of the entry No.3001 as Ex.PW7/A (OSR).
He has further deposed that in the present case SI Narender had deposited one sealed pullanda duly sealed with the seal of NK with seizure memo of one bed sheet on 27.05.13 vide entry No.2973. copy of entry No.3001 is Ex.PW7/B (OSR).
On 06.06.13 SI Narender had deposited one sealed pullanda duly sealed with the seal of NK with seizure memo of purse and ATM card which was deposited in malkhana vide entry No. 2994.
State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 17 of 44 pages On 15.07.13 IO had taken this pullanda for judicial TIP and returned the same with the seal of MG. Copy of entry No.3001 is Ex.PW7/C. PW7 has further deposed that on 09.07.13 SI Narender had deposited one sealed pullanda duly sealed with the seal of NK with seizure memo of one Mobile phone in malkhana vide entry No. 3107 and this case property was transferred to PS Preet Vihar on 01.10.13 vide RC No. 281/21/13 and he has proved the copy of entry No.3001 as Ex.PW7/D. He has further stated that on 17.07.13 SI Narender had deposited one sealed pullanda duly sealed with the seal of NK with seizure memo of several articles in Malkhana vide entry No. 3134. The said case property was taken by IO for judicial TIP for 23.07.13 and returned back on the same day with the seal of MG. Copy of entry No.3001 is Ex.PW7/E. PW8 is Ct. Kabal Singh who has deposed that in the year 2003, exact date or month he does not remember at present, one day after a dacoity he alongwith his dog went to Bhatt Nagar but no clue could be found and the Ld Addl PP for the State put a leading question to the witness on which the witness stated that it is correct that on 27.05.13 they came to D53, Anand Vihar, Ground Floor, Delhi but he is not sure about the date.
PW9 is Ms. Gunisha Kohli, D/o Sh. Praveen Kohli, ( she was examined through V/C) who deposed that she has completed her Graduation and presently working in a company. On State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 18 of 44 pages 26.05.13 she and her mother was sleeping in a room in their house. She further deposed that her father and sister were not present in the house. At about 2.15 - 2.20 am, she got up to take water from the kitchen. As soon as she went out of the room, she saw five persons in the lobby. She shouted and on hearing her shouts her mother got up. Those persons grabbed her and threw her on the bed where her mother was sleeping. Some of them were armed with revolver and knives. Those persons had covered half of their faces with hankies. She further deposed that her mother also started crying whereupon those persons threatened them to remain quiet failing which they would kill them. They cut the bed sheet with the long knife like weapon and tied their hands and feet with the bed sheet. They also stuffed cloth in the mouth of her mother which they later took out as she started having breathing problem. One of the assailants continuously kept knife at her and her mother and stood besides them. The other assailants ransacked their house and were threatening to kill them. They took out cash, jewellery, electronic goods, silver utensils and all the expensive things of the house and left at about 4.00 am threatening them not to raise the alarm failing which they would kill them. She further deposed that they were badly scared and therefore kept sitting quietly till about 6.30 am. They managed to untie their feet and came out of the house and went to neighbour house. They had also found that the glass and the grill of the drawing room had been removed from which the assailants would have entered inside State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 19 of 44 pages the house. The neighbourer who is the friend of her father informed her father on telephone. Her father came back at the house. Police came at their house and she has stated that she may be able to identify some of the stolen jewellery/articles/electronic gazettes of the house.
During the examination of the witness a sealed pullanda bearing the court seal was produced by the MHC(M) and was opened and one golden bracelet, one golden necklace, one pair earrings having blue stones, one pair tops having white moti, one wrist watch having silver chain were taken out and shown to the witness (through digital visualizer), the witness identified the bracelet, one pair of earrings having blue stone and one wrist watch having silver chain which were robbed from their house but fails to identify the necklace and one pair of tops having white moti.
Thereafter, MHC(M) produced an another sealed pullanda bearing court seal. The pullanda was opened and bed sheet torn into five pieces were brought out and shown to the witness (through digital visualizer) and the witness identified the torn pieces of bed sheet as Ex.P2 (collectively) and stated that it was the same bed sheet which was torn and with which their hands, feet and mouth were tied.
PW9 has identified both the accused persons present in court through V/C and stated that they were amongst the assailants who committed robbery on 26.05.13 at their house and thereafter Ld PP for the State put a leading question to the witness upon which the State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 20 of 44 pages witness stated that it is possible that the necklace and the tops may also have been robbed from their house and her mother may be able to identify the same.
PW 10 is Sh. Chander Shekhar Nodal Officer Bharti Airtel who has produced the record of CAF of mobile No. 9958573382 and 9818088773 alongwith their call details during the period 25.05.13 to 28.05.13 and call details of one mobile having IMEI No. 359462040367140 and has stated that the CDRs are true as per their record which were kept by them in the electronic form with the help of software to disallow manipulation and he has proved the copy of CAF of Mobile No. 9958573382 as Ex.PW10/A, copy of CAF of mobile No. 9818088773 as Ex.PW10/B and CDR of mobile No. 9958573382 as Ex.PW10/C and CDR of Mobile No. 9818088773 as Ex.PW10/D and CDR of IMEI No. 359462040367140 as Ex.PW10/E. He has also proved the Certificate u/s 65 B Evidence Act with regard to authenticity of CDR Ex.PW10/F which bear his signatures at point A and has stated that all copies Ex.PW10/A to Ex.PW10/E also bear his initials and stamp of the company at point A. PW11 is Sh. Kuldeep Bhan, who has deposed that he is working in All India Radio as Senior Engineering Assistant. In June 2013 exact date, he does not remember at present Dimple Kohli and her daughter Gunisha Kohli came to her house at about 6.00 am in the morning and told him about incident of robbery at their house by 4 to State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 21 of 44 pages 5 persons. He opened the knot of their hands. He also called the police and during the leading question put by the Ld.APP the witness has stated that it is correct to suggest that husband of Dimple Kohli namely Praveen Kohli was also informed.
PW 12 is HC Naresh Chand, who participated in the investigation of the present case and has deposed that on 06.06.13, he was posted at PS Anand Vihar and on that day he alongwith Ct. Pradeep and SI Narender reached at Anand Vihar Jhuggi at about 9.00 pm. A secret informer met SI Narender. Secret informer told SI Narender that accused involved in the present case was going towards to his village from Anand Vihar Bus Stand. They reached at Anand Vihar Bus Stand. He further deposed that when they were present at the gate of Anand Vihar ISBT, secret informer pointed out towards one person and he was apprehended. On interrogation his name was revealed as Mohd. Tasleem now present in court (correctly identified). Search of the accused was taken and one wallet containing Rs.1200/, one ATM Card of UTI Bank, a visiting card and one mobile were recovered. A pullanda was prepared of the recovered case property and it was sealed with the seal of NK. Pullanda was handed over to Ct. Pradeep. Accused was interrogated and arrested. Seizure memo of purse containing Rs.1200/, one ATM Card of UTI Bank and a visiting card is Ex.PW12/A which bears his signatures at point A. He has also proved the Arrest memo of accused Mohd Tasleem as Ex.PW12/B and has stated that the same also bears his State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 22 of 44 pages signatures at point A and he has proved the Disclosure statement of accused Ex.PW12/C which also bears his signatures at point A and has stated that Personal search memo was also prepared and the same is Ex.PW12/D which bears his signatures at point A and has further stated he can identify the case property if shown and during the leading question put by the Ld Addl PP for the State, witness stated that it is correct that accused pointed out the spot of incident vide pointing out memo Ex.PW12/E. MHC(M) produced a sealed pullanda sealed with the seal of court. The seals were intact and pullanda was opened. After removing the seal and one black colour wallet containing Rs 1200/ (two notes of 500 denomination each and two notes of 100 denomination each), one UTI ATM Card and one visiting card of Krishna Diagnostic Lab were taken out and shown to the witness who correctly identified the same as Ex.P3 (collectively).
PW 13 is Ct. Hansraj who joined the investigation of the present case on 10.06.13 and has deposed that on 10.06.13 he was posted at Police station Anand Vihar and on that day he alongwith SI Narender and accused Tasleem (correctly identified) went to Old Anand Vihar Railway Station. Accused Tasleem got recovered a country made pistol from the bushes. The country made pistol was unloaded and a live cartridge was taken out. IO prepared the sketch of the pistol and the cartridge which is Ex.PW13/A which bears his signatures at point A. The measurement of the pistol and the State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 23 of 44 pages cartridge were taken. Thereafter, the pistol and the cartridge were kept in a piece of white cloth and a pullanda was prepared which was sealed with the seal of NK. Seal after use was handed over to him. The sealed pullanda was seized vide memo Ex.PW13/B which also bears his signatures at point A. IO also prepared site plan of place of recovery which is Ex.PW13/C which also bears his signatures at point A. Accused Tasleem was then taken to Hedgewar Hospital and was got medically examined and was then produced before the court. He has further stated that he can identify the case property if shown and the MHC(M) produced a sealed pullanda with broken seal containing the particulars of the case and FSL Number. The envelope was opened and the opened cloth pullanda bearing the particulars of the case and the seal of NK and one country made pistol and a fired cartridge were taken out and shown to the witness and the witness correctly identified the country made pistol as Ex.P4 and the used cartridge as Ex.P5 and during the leading question put by the Ld Addl PP for the State the witness has stated that it is correct that before proceeding for the recovery, the accused had given the disclosure statement Ex.PW13/D which bears his signatures at point A. PW 14 is Ct. Ravinder who on 09.07.13 was posted at PS Anand Vihar and joined the investigation of the present case. He has deposed that on 09.07.13 he alongwith IO SI Narender Kumar and a secret informer went to Badyun for searching of accused Badshah State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 24 of 44 pages Khan. He has further deposed that they reached village Hari Nagla. Secret informer pointed out the house of Kalicharan. The door of the house was opened and accused was present there. On interrogation accused gave disclosure statement Ex.PW14/A which bears his signatures at point A. On the formal search of accused Badshah, a mobile phone was recovered from the right pocket of his pant. The phone was kept in a piece of cloth and a pullanda was prepared which was sealed with the seal of NK which was seized vide memo Ex.PW14/B which bears his signatures at point A. Seal after use was handed over to him. One ladies purse containing Rs.830/ and two more mobile phones were also recovered from the accused Badshah on his personal search. IO prepared the arrest memo Ex.PW14/C which bears his signatures at point A. Personal search memo of accused was also prepared which is Ex.PW14/D which also bears his signatures at point A. PW14 has identified the accused Badhash present in court correctly and during the leading question put by the Ld Addl PP for the State PW14 has stated that Ct. Pradeep was also with them at the time of arrest of accused Badshah.
PW 15 is Sh. S.S. Badwal, SSO, FSL Rohini who has deposed that on 28.05.2013 he was posted at Forensic Science Laboratory and working as Senior Scientific Officer. On that day he has been called by the SHO PS Anand Vihar in connection with the present case, thereafter he alongwith Akbal Ali and Bijender (photographer), who assisted him had left their office at about 2.00 State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 25 of 44 pages pm and thereafter they reached at D53 Anand Vihar and examined the place of occurrence and he has further deposed that he has prepared his rough notes after examining the place of occurrence and on that basis he prepared his crime scene report Ex.PW15/A which bears his signatures at point A and thereafter, he had destroyed the rough notes.
PW16 is HC Punit who has deposed that on 1707 2013, he was posted at PS Anand Vihar. He has further stated that on that day, he joined the investigation with IO SI Narender Kumar. Accused was taken out from the lockup and at the instance of accused they reached at his rented house No. B117, T Camp, Govind Puri. Accused had got recovered one necklace, one bracelet, two earring/jhumki and one pair of tops. These jewelleries were artificial jewelleries. He had also produced one ladies watch and disclosed that these were the articles which he robbed on the intervening night of 26/27052013. The said jewellery articles and watch were converted into a pullanda and sealed with the seal of NK and seized vide seizure memo Ex. PW16/A bearing his signature at point A and he has identified the accused Badshah correctly and has stated that thereafter, they returned to the police station and case property was deposited in the malkhana and he has stated that he can identify the case property if shown to him and he has identified one necklace, one bracelet, two earrings /jhumki, one pair of tops and a ladies watch collectively Ex. P1 as the same which were recovered State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 26 of 44 pages from the accused.
PW17 is Sh. Muneesh Garg, Ld. MM, Tis Hazari Courts, Delhi who conducted the TIP proceedings of accused Mohd. Tasleem Ex. PW2/C and has stated that witness Dimple Kohli correctly identified the accused Mohd Tasleem. He has also proved the TIP of the case property Ex. PW3/A and he has also proved the TIP of the case property Ex. PW2/D. PW18 is W/Ct. Angoori who has deposed that on 27 052013 she was posted at Control Room, PHQ, ITO, New Delhi. At about 7.37 am, she received a call from mobile No. 9818522199 regarding theft. The same information was forwarded by her to the concerned police station for necessary action and it was flashed on NET. The copy of PCR form is Ex. PW18/A bearing her signautre at point A. PW19 is ASI Devanand who has deposed that on 27 052013, he was posted as a Head Constable at East Control Operator, CPCR, PHQ, New Delhi and at about 7.39 am, he received information that there was theft at H. No. D53, Anand Vihar, Delhi near Anand Vihar Railway Station. He further deposed that he forwarded this information at about 7.40 a.m. to PCR van No. R49 for necessary action. The PCR form is already Ex. PW18/A which bears his signature at point B. PW20, Sh. N.B. Bardhan Principal Scientific Officer Ballastic Cum Assistant Chemical Examiner CFSL CBI New Delhi.
State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 27 of 44 pages He has deposed that one parcel duly sealed with the seal of NK in connection with present case FIR was received in their office on 17.07.2013 as forwarded by the SHO, PSAnand Vihar. The parcel was marked to him for examination. He further deposed that he opened the parcel after tallying the seals of the parcel with the specimen seal received in this case and on opening the parcel it found containing one .315/8mm country made pistol, which was marked as MarkW/1 by him and one .315/8mm cartridge which was marked as C/1 by him. On physical examination, the above mentioned country made pistol was found as designed to fire standard .315/8mm cartridge and thus, was firearm as defined in Arms Act, 1959, however, the country made pistol was not in working order in its present condition due to defective firing pin.
The .315/8mm cartridge was ammunition as defined in Arms Act, 1959 and was live one. The said cartridge C/1 was consumed during test firing.
With regard to the test conducted as mentioned at Sl. No.7 (ii) though no finding was mentioned by him in his report but he stated that he can tell about it after going through his worksheet as he has brought the case file with him today. After seeing, the work sheet, the witness replied that on chemical analysis of barrel wash was got presence of gunshot residues, the same was found positive as Nitrite was detected, which was a component of gunshot residues and he has proved his detailed report bearing CFSL No2013/F843 dated State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 28 of 44 pages 06.08.2013 as Ex. PW20/A which bears his signature at pointA & B. The photo state copy of his worksheet is Ex. PW20/B (original seen and return) (copy supplied to ld. defence counsel) and he has further stated that after examination, the case property was sealed with the seal of NBB, PSO (BALL, CFSL,CBI, New Delhi) and forwarded to forwarding authority and has stated that he can identify the case property, which was examined by him.
One parcel duly sealed with the seal of court, was produced by the MHCM and the parcel was opened and after removing the seal, one polythene and one open cloth parcel bearing particulars of the present case and having seal impression NK and one country made pistol and one used cartridge were taken out and shown to the witness. The witness identified the country made pistol as already Ex.P4, used cartridge as Ex.P5, which were examined by him and were having his initials along with the CFSL case particulars engraved by him on both the case properties.
PW21 is Inspector Avdhesh Kumar, Finger Print Expert who has deposed that on 15.07.2013, SOC, 8 photographs of the chance print Mark Q1 to Q8 along with specimen finger/palm print slips of the accused persons namely Mohd. Tasleem S/o Abdul Waheed and Badshah S/o Jainul were received from SHO, PSAnand Vihar in connection with the present case FIR for seeking opinion whether the above mentioned chance print are identical with any of the finger/palm print of the above persons or the above mentioned State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 29 of 44 pages chance prints Q1 to Q8 are identical with any of the finger prints on the record of the bureau or not.
He has stated that he examined the chance prints Q1 to Q8 carefully with the help of scientific instruments and he was of the opinion that none of the chance print Q1 to Q8 were found identical with the finger/palm prints of the above mentioned persons or matched with any person on the record of the bureau and thus these prints remained unidentified and he prepared his report, which is Ex. PW21/A which bears his signature at pointA. PW22 is Sh. Mandeep Singh Randhava DCP Central District who was posted at East District as Addl DCP Police1 on 29.10.2013 and accorded Sanction U/s 39 of the Arms Act to prosecute the accused Mohd Tasleem and the Sanction Letter is Ex. PW22/A. PW23 is Sh. Vijender Tiwari, Photographer who has deposed that he is working as photographer in FSL Rohini. On 28.05.2013, on the request of IO of the present case of PS Anand Vihar he along with Sh. S.S. Badwal went to the place of incident i.e. D53, Anand Vihar at the ground floor where the spot was inspected by Sh.S.S. Badwal and he photographed the spot. He has further stated that he had brought the 19 photographs and two CDs containing the photographs and the Photographs are now Ex.PW23/A1 to Ex.PW23/A19 and the CDs are now Ex.PW23/B and Ex.PW23/C. State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 30 of 44 pages PW24 is Insp. Narender Kumar IO of the case who has deposed that on 27.05.2013, he was posted as SI in PS Anand Vihar. On receipt of DD No. 7A Ex. PW24/P1 which is in his handwriting, he alongwith Ct. Rajesh had gone to the place of occurrence at D53, Ground Floor, Anand Vihar. He saw that the window in the house was open and the inside iron grill was taken out and kept separately. He had also seen that the latch of the main drawing room was also detached. He saw on entering the house that there were three rooms built up in the said premises and the household articles and other articles of the almirah were lying around and the lock of the almirahs were broken and the almirah were found open and articles from the almirah were also lying around. He had met the complainant Dimple Kohli and her daughter Manisha Kohli in the house. He recorded the statement of Dimple Kohli Ex. PW2/A and made his endorsement Ex. PW24/A, prepared a rukka and the same was handed over to Ct. Rajesh for registration of the present case. He went to the PS and got the present case registered and returned to the spot and handed over copy of FIR Ex. PW1/A and rukka to him. He has further deposed that he had taken into possession five pieces of bedsheet lying in the house vide seizure memo Ex. PW2/B and the same was sealed with the seal of NK. Crime team was called and the crime scene was inspected. He prepared the site plan Ex. PW24/B at the pointing out of the complainant. He recorded the statement of witnesses under Section 161 Cr.PC and he had instructed the complainant not to State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 31 of 44 pages disturb the crime scene as the FSL team was to inspect the crime scene on the next day i.e 28.05.2013.
On 28.05.2013, the inspection of the premises was got conducted by the FSL team. Since the site was also inspected by the mobile cream team, he collected the report Ex. PW4/A. On 29.05.2013, the complainant had accompanied them to CRO at Kamla Market and sketch of the offenders were got prepared.
On 06.06.2013, the investigations had been continuing alongwith HC Naresh and Ct. Pardeep and accused Mohd. Tasleem was arrested at the pointing out of secret informer from near Anand Vihar Bus Terminal vide his arrest and personal search memo Ex. PW12/B and PW12/D respectively. He further deposed that he interrogated accused Mohd. Tasleem and recorded his disclosure statement Ex. PW12/C. Personal search of the accused was taken and he was found to be carrying Rs. 1,200/ and one UTI Bank card and one visiting card and the same were taken into possession vide Ex. PW12/A. Accused Mohd. Tasleem had also taken them to the place of occurrence and pointed out the place of the alleged commission of offence and a pointing out memo in this regard was prepared Ex. PW12/E. Accused Mohd. Tasleem was produced in the court on the next day and remanded to PC. Accused Mohd. Tasleem had taken them to various places but there was no clue to the other accused and the case property.
State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 32 of 44 pages On 10.06.2013, accused Mohd. Tasleem had taken them near the park near Old Anand Vihar Railway Station and got recovered one country made pistol. The barrel of the pistol was open and it revealed a live cartridge in the barrel. Sketch of the same was prepared Ex. PW13/A and the same was taken into possession vide seizure memo Ex. PW13/B and the recovered case property was sealed with the seal of NK. Seal after use was handed over to Ct. Hansraj. The sketch of the place of recovery was also prepared Ex. PW13/C. Accused Mohd. Tasleem were directed to remain in the muffled face. TIP of the accused Mohd. Tasleem was got conducted on 25.06.2013 and the accused was correctly identified by the witness Dimple Kohli. He has further deposed that he has also recorded the statement of witness Dimple Kohli. Accused was produced in the court and was remanded to JC. Investigation in the case continued and on 08.07.2013, he alongwith Ct. Ravinder and Ct. Pardeep had gone to district Badayun, U.P alongwith the secret informer. Secret informer informed that the other accused Badshah was to come to visit his native house in the village Hari Nangla, PS Umar Gaon, District Badayun, U.P. The premises where the accused Badshah was present was raided at around 1:00 a.m on 09.07.2013 and accused Badshah was arrested vide his arrest and personal search memo Ex. PW14/C and PW14/D. He was interrogated and his disclosure statement was recorded Ex. PW14/E. One mobile phone was recovered from the possession of State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 33 of 44 pages accused Badshah and it was revealed that the said mobile phone was stolen in another case of murder at PS Preet Vihar. The same was taken into possession vide seizure memo Ex. PW14/B. They all returned to Delhi on the same day and the accused Badshah was produced in the court and PC remand of the accused was obtained. Accused Badshah had taken them to transit camp at Govindpuri on 17.07.2013 and got recovered some jewellery which was stolen in the present case and the same was taken into possession vide seizure memo Ex. PW16/A. The TIP of the jewellery was got conducted and Dimple Kohli identified the jewellery in TIP proceedings. Accused Badshah refused his personal judicial TIP. He was produced in the court and was remanded to JC.
He had also obtained the crime scene report from the FSL Ex. PW15/A. Since accused Ansar could not be arrested, he was declared PO and supplementary chargesheet against him was filed. TIP proceedings in respect of accused Tasleem are Ex. PW2/C. TIP proceedings of case property is Ex. PW2/D. He has further stated that he also collected the photographs from the crime team unit and the same were placed on record which is Ex. PW6/A (colly). All the case property were deposited in the malkhana.
He has further stated that two other coaccused in the present case are still absconding and their names have been revealed as Abu Sahil @ Master and Rana. Accused Badshah is a Bangladeshi citizen as he has disclosed his address of Bangladesh and provisions State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 34 of 44 pages of Section 14 of the Foreigners Act were also incorporated in the chargesheet and he had also obtained the sanction and FSL result in respect of country made pistol recovered from accused Mohd. Tasleem. He has further deposed that he had recorded the statement of witnesses. He can identify the case property if shown to him.
MHCM had produced the case property but the Ld Addl PP for the State stated that the case property has already been exhibited on record and is not required to be exhibited again and again and he identified both the accused persons present before the court. Thereafter, prosecution evidence was closed. Statement of the accused persons U/s 313 Cr.PC recorded. Accused Badshah has stated that he is innocent and has been falsely implicated in the present case so far question of being Bangladeshi citizen is concerned accused has stated that his family resides in Badarpur in Delhi and opted not to lead evidence in defence. Accused Mohd Tasleem in his statement U/s 313 Cr.PC has denied all the incriminating evidence against him on record and has stated that he has been falsely implicated in the present case and nothing was recovered from him as police showed him to the public persons and accused Mohd Tasleem also opted not to lead evidence in defence.
Final arguments heard. File perused.
It has been submitted by the Ld counsel for the accused Mohd Tasleem that the accused Mohd Tasleem has been falsely implicated in the present case and has committed no offence and the State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 35 of 44 pages complainant has identified accused Mohd Tasleem during the TIP proceedings as the police had shown the accused Mohd Tasleem to the witness in the police station as the police prior to the TIP of the accused had obtained the police remand of the accused for three days. Accused was already in the custody of police and the alleged recovery was planted upon the accused and no public witness has been joined by the IO at the time of alleged recovery of country made pistol at the instance of the accused and has also not joined any public witness at the time of arrest of the accused Mohd Tasleem as well as at the time of recovery of the alleged case property from the accused Mohd Tasleem despite the fact that even as per police version the accused was apprehended from Anand Vihar Bus Terminal which is a busy place and number of persons used to be present there and there are number of reharis and khokas near the bus stand Anand Vihar and IO of the case during his cross examination has admitted this fact that at the entry gate of the bus stand there were so many reharis and khokhas and he has also admitted it has correct that police persons and guards were very much present at Anand Vihar bus stand and has further admitted that he did not call anyone to join the investigation at any point of time. This shows that the accused has been falsely implicated in the present case and has not been arrested as alleged. The accused were already in the custody of the police and alleged case was implanted upon the accused Mohd Tasleem. It has been further argued on behalf of the accused that even so far the place of State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 36 of 44 pages alleged recovery of katta is concerned the IO has admitted it as correct that there is a park adjacent to the Anand Vihar Railway Station and IO has admitted that he did not call the railway police to join the investigation at the time of alleged recovery of the country made pistol.
Ld counsel for the accused Badshah has also argued and has submitted that accused Badshah is innocent and he has been falsely implicated in the present case even PW2 the complainant Dimple Kohli though has identified the accused Mohd Tasleem but has stated that he cannot identify the other accused as such she has failed to identify the accused Badshah during her examination and the mobile phone alleged to have been recovered from the accused Badshah was the case property of other case of murder of PS Preet Vihar in which the accused has already been acquitted and so far the recovery of the jewellery articles are concerned the same has been planted upon the accused Badshah. No public witness has been joined at the time of recovery of the said articles. So far question of Bangladeshi citizen is concerned the accused Badshah has already been convicted U/s 14 of the Foreigner Act in case FIR No. 143/2013 PS Anand Vihar and as such the accused Badshah cannot be convicted twice for the same offence.
Submission considered. File perused. No doubt PW2 the complainant Dimple Kohli during TIP of the accused Mohd Tasleem has identified the accused Mohd Tasleem and has also identified the State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 37 of 44 pages accused Mohd Talseem in the Court but in the present case it is admitted fact that before getting the TIP of the accused Mohd Tasleem conducted the IO of the case has obtained the police remand of the accused Mohd Tasleem for three days and the accused Mohd Talseem was in police custody for three days as such the possibility of showing the accused Mohd Tasleem to the complainant Dimple Kohli cannot be ruled out and the accused Mohd Tasleem becomes entitled to benefit of doubt on this account also. So far arrest of the accused Mohd Tasleem and recovery of the case property from accused Mohd Tasleem is concerned as per the prosecution case accused Mohd Tasleem was arrested from near Anand Vihar Bus Terminal and Rs. 1200/ cash and one UTI Bank Card and One Visiting Card were allegedly recovered from the accused after his arrest at a place near Anand Vihar Bus Terminal and it has been admitted by the IO of the case PW24 Inspector Narender Kumar during his cross examination that Anand Vihar Bus Stand is a very busy place and he has also admitted it as correct that so many buses entered into the bus stand and has also admitted it as correct that at entry gate of bus stand there were so many reharis and khokas at that time and he has further admitted it as correct that the police persons and the guards were very much present at the Anand Vihar Bus Stand. As such all this suggests that there was an ample opportunity for the IO of the case to join the public witness at the time of the arrest of the accused as well as at the time of the recovery of the case property but State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 38 of 44 pages the IO has not joined any public witness in the investigation despite availability and there is no reasonable explanation on record for the same. IO during his cross examination has simply stated that he did not call anyone to join the investigation at any point of time. There is no explanation on the part of the IO that why he did not call any public witness despite the fact that there was ample opportunity to join the public witness as the place of arrest of the accused Mohd Tasleem is a busy place. Further during his cross examination IO Inspector Narender Kumar has stated that he did not call anyone to join the investigation at any point of time whereas PW HC Naresh Chand who has been examined as PW12 during his cross examination has stated that IO requested some passersby to join the investigation but they refused. This is the material contradiction between the testimony of PW24 Inspector Narender Kumar IO of the case and PW12 HC Naresh Chand as IO of the case has stated that he did not call any public witness and the PW12 HC Naresh Chand has stated that IO has requested some passersby to join the investigation but they refused. All this renders the arrest of the accused Mohd Tasleem from the place as alleged and the alleged recovery from the accused Mohd Tasleem doubtful.
Further as per the prosecution case accused Mohd Tasleem had got recovered the country made pistol near the park near Old Anand Vihar Railway Station as deposed by the IO and admittedly during his cross examination PW24 Inspector Narender State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 39 of 44 pages Kumar IO of the case has admitted it as correct that there is a park adjacent to the Anand Railway Station and it has further admitted it as correct that he did not call the railway police to join the investigation, this again suggests that the IO of the case Inspector Narender Kumar who has been examined as PW24 has not joined the public witness despite availability and possibility to do so and there is no reasonable explanation on record for non joining of public witness. As such even the recovery of the country made pistol and cartridge from the accused Mohd Tasleem becomes doubtful.
So far accused Badshah is concerned PW2 the complainant Dimpe Kohli has failed to identify accused Badshah though even during the leading question put by the Ld. Addl PP for the State on pointing out by the Ld Addl PP for the State towards accused Badshah PW2 has stated that he is also one of the assailants involved in the robbery at her house but at the same time she has voluntarily stated that he is looking very different. This kind of identification is a weak type of evidence against the accused Badshah. So it cannot be said that accused Badshah has committed robbery at the house of the complainant so far recovery of mobile phone from the accused is concerned as per prosecution case the accused Badshah was arrested from Village Hari Nangla PS Umar Gaon Distt. Badyun U.P and the IO of the case Inspector Narender Kumar who has been examined as PW24 has admitted that he did not make any arrival entry in any local police station at Badyun or not call any local police State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 40 of 44 pages person or public persons or Gram Pradhan of Village Hari Nangla Badyun U.P this again renders the visit of the police party to Village Hari Nangla Badyun UP doubtful as no arrival entry was made by the IO of the case in any local police station of Badyun U.P or not called any police person or public person or Gram Pradhan of Village Hari Nangla Badyun UP at the time of arrest of the accused and the recovery of the alleged mobile phone and this renders the arrest of the accused Badshah and the recovery of mobile phone from the place as alleged doubtful and the accused Badshah also becomes entitled to benefit of doubt. No doubt PW Ms. Gunisha Kohli daughter of the complainant has identified both the accused persons but I am of the considered opinion that due to above said reasons her testimony is not sufficient to bring home the guilt of the accused persons.
So far recovery of jewellery articles from the accused Badshah is concerned as per the prosecution case accused Badshah had taken the police party to Transit Camp at Govindpuri on 17.07.2013 and got recovered some jewellery articles which was stolen in the present case and the same was taken into possession vide seizure memo Ex. PW16/A and here again IO has not joined any public witness at the time of alleged recovery of the jewellery articles from the accused Badshah when the recovery was admittedly effected at Transit Camp at Govindpuri. Moreover HC Punit who is the witness to the alleged recovery during his cross examination has stated that he was watching the accused while he got recovered the State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 41 of 44 pages case property but at the same time he has stated that he did not gave attention from which place the accused had got recovered the case property in his house. This render the alleged recovery doubtful. Moreover no bill of the jewellery articles have been produced on record to show that the case property alleged to have been recovered from the accused belongs to the complainant.
Further PW21 Inspector Avdesh Kumar Finger Print Expert has deposed that he examined the chance print Q1 to Q8 carefully with the help of scientific instrument and he was of the opinion that none of the chance print Q1 to Q8 were found identical with the finger/palm prints of above mentioned persons (Mohd Tasleem and Badshah) or matched with any person on the record of the bureau and thus these finger prints remained unidentified.
As such keeping in view the totality of the facts and circumstances of the case I am of the considered opinion that the prosecution has failed to establish its case against both the accused persons U/s 452 IPC read with Section 34 IPC, 395 IPC read with Section 34 IPC and 506 IPC read with Section 34 IPC and has failed to prove its case against the accused Mohd Tasleem U/s 397 IPC, 412 IPC and under section 25 of the Arms Act 1959 against accused Mohd Tasleem and has also failed to prove its case U/s 412 IPC against the accused Badshah beyond reasonable doubts. As such both the accused persons Mohd Tasleem and Badshah are acquitted of the offences U/s 452 IPC read with Section 34 IPC, 395 IPC read with State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 42 of 44 pages Section 34 IPC and 506 IPC read with Section 34 IPC and accused Mohd Tasleem is also acquitted of the offence U/s 397 IPC, 412 IPC and under section 25 of the Arms Act 1959 and accused Badshah is acquitted of the offence U/s 412 IPC also, with which they were charged. So far offence under section 14 of the Foreigners Act against accused Badshah is concerned the address of the accused Badshah is Village Dhan Sagar PS Maural Ganj, District Bagerhut Bagladesh and the accused though during his examination U/s 313 Cr.PC stated that his family used to reside in Badarpur Delhi but he has failed to place on record any document to show that his family resides at Badarpur Delhi or any document to show that he is the Indian National and staying in India on any valid visa or any other valid document, accordingly the prosecution has succeeded in establishing the guilt of accused Badshah U/s 14 of the Foreigners Act but for the said offence he has already been convicted U/s 14 of the Foreigners Act in case FIR No. 143/2013 U/s 120B, 396/412 IPC and Section 14 of the Foreigners Act PS Anand Vihar as such he cannot be convicted and sentenced twice for the same offence as this will amount to double jeopardy. Accordingly, release warrants be issued directing the Superintendent Jail to release both the accused persons Mohd Tasleem and Badshah if not required in any other case. Both the accused persons are directed to furnish their bail bonds U/s 437A Cr.PC in the sum of Rs. 10,000/ each undertaking thereby that they they will appear before the Appellate/Higher court if any appeal State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 43 of 44 pages is preferred against the judgment of this court.
File be consigned to Record Room after necessary compliance with the direction that this file may be revived as and when accused Ansar, who is proclaimed offender in the present case, is arrested or brought before the Court. Digitally signed Sudesh by Sudesh Kumar Location: delhi Kumar Date: 2018.12.24 12:01:42 +0530 (SUDESH KUMARI) ASJ05 Shahdara Karkardooma Courts/Delhi 24122018 Announced in the open court Dated 24122018 (Two copies attached) State vs. Mohd. Tasleem & Anr. FIR no. 197/13 PS Anand Vihar Page 44 of 44 pages