Delhi District Court
State vs . on 13 March, 2018
IN THE COURT OF SH. SUESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04
& SPECIAL JUDGE (NDPS) SOUTHEAST: SAKET
COURTS: NEW DELHI
SC 1421 of 16
State
Vs.
Shamirun @ Shamirul @ Suddo
S/o Mohd. Mustafa
R/o Patri, near Rikshaw Stand,
Barapulla, Hazrat Nizamuddin,
New Delhi
FIR No. 704/14
PS : H N Din
U/s. 394/397/34 IPC
Instituted on : 18.02.2015
Committed on : 03.03.2015
Argued on : 09.03.2018
Decided on : 13.03.2018
J U D G M E N T
1 The brief facts of the prosecution case are like this. On
16.11.2014, DD No. 36A was handed over to SI Chhail Bihari who alongwith Ct. Vinod went near Police Booth under Barapulla Flyover, where Mukadar Khan and Shenshah were found smeared State v. Shamirun @ Shamirul Page No.1 / 14 with blood. Both of them were removed to AIIMS Truama Center in a private vehicle. Both of them were medically treated. They were found fit for statement.
2 The statement of Mukadar Khan was recorded to the effect that on 16.11.2014, he alongwith his cousin Shenshah went to meet their friend at Bhogal who was not at home. They were on foot and going back to their house at Sarai Kalen Khan from under flyover new Railway Road. They reached at 09:30 PM at the backside of DAV Quetta School, H. N. Din where two boys aged 2223 years were sitting on the corner of the road. One boy was thin built, wheatish complexion and the hair style up to forehead and other boy with wheatish complexion slightly bald, lame and aged 2223 years. Both of them caught Shenshah and demanded the belongings from them otherwise they threatened them to kill. He told that they do not have anything. The boy having his hairstyle up to forehead removed gold ring from his hand and put broken beer of bottle on his kanpati and uttered the words to hand overall the belongings to them otherwise he will kill him. He pulled his hand and told Shenshah to flee from the spot. The boy with long hair chased them with broken beer of State v. Shamirun @ Shamirul Page No.2 / 14 bottle and gave injuries on his neck, hand and back and also hit Shenshah on the backside of his body. The blood oozed out but they fled from the spot and came to their house. They narrated the incident to Sanjay who informed the police and brought back to Police Booth Barapulla flyover where police officials met them. He was wearing one golden chain in his neck which is missing. He can identify both of them. His statement was recorded on which endorsement was made by SI Chhail Singh and sent to PS through Ct. Vinod for registration of case upon which FIR was registered. 3 Site plan was prepared at the instance of complainant. During investigation accused Shamirul was arrested at the instance of complainant. His disclosure statement was recorded and on its basis beer bottle was recovered at the instance of accused. 4 Accused Yusuf was arrested at the instance of coaccused. His disclosure statement was recorded. Fard Nishan dahi of place of occurrence was prepared. Both of them were produced before the Court for age determination. The accused Yusuf was declared Child in conflict with Law(CCL). Statements u/s 161 Cr.PC were recorded. Opinion on MLC was taken. Charge sheet was prepared State v. Shamirun @ Shamirul Page No.3 / 14 and filed in the Court for trial.
5 The accused has put his appearance. The copy of the challan was supplied to him. The case was committed to the court of Sessions by Ld. MM vide order dated 26.02.2015. 6 The charge under section 394/397/34 IPC was framed against the accused to which he pleaded not guilty and claimed trial. 7 The prosecution has examined 10 witnesses. The accused was examined under section 313 Cr.PC. He has denied his involvement in the case. However, no defence evidence has been led. 8 The prosecution has examined 10 witnesses. PW1 Mukadar Khan and PW2 Shenshah are the main prosecution witnesses. PW1 & 2 are injured as well as eye witnesses.
9 PW1 Mukadar Khan stated that during the intervening night of 16/17.11.2014 he alongwith PW2 was coming to his house from Bhogal and reached at 09:30 PM near New Railway Road, Barapulla Flyover where two boys were sitting on the footpath. They started manhandling them. They objected to it upon which he was apprehended by one of them. He was wearing a gold ring. The accused demanded the said ring from him but he refused to hand State v. Shamirun @ Shamirul Page No.4 / 14 over the same. They extricated themselves from their clutches and started running but they were chased with the broken bottle of beer. Both of them were caught at some distance. One of the accused put broken bottle on his neck and snatched the ring and caused injuries on his neck and right arm. They informed the police at Barapulla. Local police patrolling party reached on the bike but PCR Van did not reach on the spot. He was also wearing a gold chain but he was not sure whether he was robbed of the chain or not. They were taken to AIIMS Trauma Center in an auto by police official where medical aid was given to them. He was brought back to PS, Nizamuddin where his statement Ex.PW1/A was recorded. Some photographs were shown in the mobile phone at PS, Nizamuddin where he has identified two persons. The police have brought two persons to the PS where he has identified them. He has failed to identify the accused present in the Court. He was declared hostile and cross examined at length by Ld. Addl.PP. During cross examination, he stated that he cannot identify the accused as his brother can identify this accused due to some confusion in his appearance. He has shown the place of occurrence to the police. The accused was arrested State v. Shamirun @ Shamirul Page No.5 / 14 whose personal search and arrest memo Ex.PW1/B & C were prepared. No cross examination was done by the accused though opportunity was given.
10 PW2 Shenshah stated that during the intervening night of 16/17.11.2014, he alongwith PW1 was coming to his house from Bhogal and reached at 09:30 PM near New Railway Road, Barapulla Flyover where two boys were sitting on the footpath. They started manhandling them. They objected to it upon which he was apprehended by one of them. PW1 was wearing a gold ring. The accused demanded the said ring from PW1 who refused to hand over the same. They extricated themselves from their clutches and started running but they were chased with the broken bottle of beer. Both of them were caught at some distance. One of the accused put broken bottle on the neck of PW1 and caused injuries on neck, ribs and back of the body. They snatched the ring from PW1. They informed the police at Barapulla at number 100. Local police patrolling party reached on the bike but PCR Van did not reach on the spot. They were taken to AIIMS Trauma Center in an auto by police official where medical aid was given to them. They were State v. Shamirun @ Shamirul Page No.6 / 14 brought back to PS, Nizamuddin where statement Ex.PW1/A of PW 1 was recorded. He has identified the accused. He was declared hostile and cross examined at length by Ld. Addl.PP. During cross examination, he stated that his statement was recorded by the police. The accused was apprehended on the next day when he has identified the photograph in the mobile phone. The suggestion is denied that he has stated to the police that accused was apprehended at his instance or the person who was arrested from the spot has attacked PW1with beer bottle. During cross examination he stated that he is seeing the accused for the first time in the court after the incident. There was dark at the time of incident but there was street light. Police did not take him anywhere. He has told to the police that one of the accused was thin and other was tall and lame. He has identified the accused on the basis of his hairstyle who has covered his face up to the eyes. The accused present in the Court is not the same who has chased them with broken bottle of beer. 11 PW3 Sanjay stated that on 16.11.2014 he was at his house where Mukadar and Shenshah came in an injured condition. He brought back both of them to Police Booth, Barapulla and informed State v. Shamirun @ Shamirul Page No.7 / 14 the police from his mobile phone. They were on way to Hospital where police officials met them. The police officials accompanied them to AIIMS Trauma Center.
12 PW4 Smt. Raj Malik, Teacher, Arya Patshala, Jungpura stated that she has brought the summoned record. The accused Sahmirul was given admission on the basis of application Ex.PW4/A and affidavit Ex.PW4/B in the 3rd Standard. The entry regarding admission is Ex.PW4/C. 13 PW7 HC Patel Chandarkant has proved FIR Ex.PW7/A, endorsement Ex.PW7/B on rukka and certificate u/s 65 B of Indian Evidence Act Ex.PW7/C. 14 PW9 Dr. Shashi Ranjan has proved MLC Ex.PW9/A and B of the injured Mukadar Khan and Shenshah. The injuries were simple which are caused by sharp edged weapon.
14 PW8 SI C. B. Sharma is first IO of the case. He stated that during intervening night of 16/17.11.2014 he was on emergency duty in the PS. He received DD No. 36A Ex.PW8/A upon which he alongwith PW6 Ct. Vinod went near police booth Barapulla where injured PW1 & 2 met them. They were sent to AIIMS Trauma State v. Shamirun @ Shamirul Page No.8 / 14 Center through PW6. He received an information from Hospital. He went to Hospital where MLCs of the injured were collected who were found fit for statement. Statement Ex.PW1/A of PW1 was recorded on which rukka Ex.PW8/A was prepared and sent to PS through PW6 for registration of case upon which FIR was registered.
15 On the next day, he alongwith PW5 Ct. Akhilesh, Ct. Ram Karan came to the place of occurrence where injured met them. Site plan Ex.PW8/B was prepared at the instance of complainant. They went in search of accused. The complainant pointed out towards boy standing at Nala, Barapulla who was apprehended. The boy disclosed his name as Shamirun @ Shamirul who was arrested. His personal search and arrest memo Ex.PW1/B & C were prepared. Disclosure statement Ex.PW5/B was recorded. The memo regarding place of occurrence Ex.PW5/A was prepared. The accused got recovered broken beer bottle from near a rickshaw which was taken into possession vide Fard Ex.PW5/A. The accused disclosed the name of coaccused as Yusuf. On 19.11.2014 coaccused Yusuf was arrested whose personal search and arrest memos were prepared. State v. Shamirun @ Shamirul Page No.9 / 14 Disclosure statement was recorded. Statement u/s 161 Cr.PC were recorded. He was transferred thereafter. Yusuf was declared CCL where other accused is present in the Court. During cross examination, he stated that injured were standing on the road. The accused was arrested after two hours of reaching on the spot. The suggestion is denied that accused is falsely implicated. 16 PW5 Ct. Akhilesh has corroborated the version of PW8. 17 PW6 Ct. Vinod has also corroborated the version of PW8. 18 PW10 SI Bharat Singh stated that the investigation of the case was handed over to him. He has taken the opinion in the MLC from the hospital. On 06.01.2015 Ossification Test of accused Y was conducted who was in between 18 20 years. Ex.PW10/A is the copy of report. His file was separated and submitted before Juvenile Justice Board. The other accused is present in the Court. 19 Ld. Addl.PP for the State submitted that accused is one of the offenders. He further submitted that the testimony of PW1 & 2 have corroborated the case of the prosecution and PW2 has clearly identified the accused. He further submitted that there is nothing on the record to view the testimony of PWs with aid of spectacles. State v. Shamirun @ Shamirul Page No.10 / 14 20 Ld. Defence Counsel submitted that PW1 has not identified the accused. He further submitted that PW2 has also not identified the accused. He further submitted that there is no evidence on record that accused has committed the offence.
21 Heard and perused the record.
22 The prosecution has examined 10 witnesses in order to prove its case. The testimony of PW1 and 2 is material in nature. PW1 & 2 are injured as well as eye witnesses.
23 PW1 and 2 have categorically stated that they were coming back from the house of their friend to Sarai Kale Khan and reached at 09:30 PM at New Railway Road, Flyover Barapulla where two persons caught them. PW1 was wearing a gold ring in his finger. One of the boys demanded ring from PW1 but he refused to hand over the same. The extricated themselves from their clutches and started running but they were caught at a distance by both of them. One of them was holding broken bottle of beer and put it on the neck of PW1 and caused injuries to him and removed ring from his finger. The injuries were also caused to PW2.
24 PW1 & 2 have corroborated the version. The question is State v. Shamirun @ Shamirul Page No.11 / 14 whether accused has committed the offence or not. PW1 has not identified the accused. There is no identification of accused from PW1.
25 The statement Ex.PW1/A shows the description of one of the accused like this i.e. thin built, small face, wheatish complexion with hair falling on the forehead.
26 The prosecution has failed to prove how the accused was apprehended. The testimony of PW5 & 8 shows that they alongwith complainant went in search of accused. They have apprehended the accused on the identification of PW2 from Nala Barapulla. Neither PW1 nor PW2 has stated that accused was apprehended at their instance. There is nothing in the testimony of PW5 & 8 that accused was apprehended on the basis of the description given in the complaint Ex.PW1/A. The story projected by the prosecution that accused was apprehended at the instance of complainant has fallen like house of cards.
27 The accused was not apprehended at the instance of PW1 & 2. They should have been put to TIP for the identification. They were not put to TIP for the reasons best known to the prosecution. He has State v. Shamirun @ Shamirul Page No.12 / 14 been identified on the basis of photographs shown in the mobile and not on the basis of description given in the statement. To my mind, said identification is no identification.
28 PW2 has identified the accused on the basis of his hairstyle. The said identification is no identification because it is not possible to identify a person merely on the basis of hairstyle. Neither PW5 nor PW8 has deposed that PW1 & 2 have identified the accused during the course of investigation by virtue of the hairstyle. To my mind, the identification of accused by PW2 during his examination in chief does not inspire confidence.
29 The broken of bottle of beer was allegedly recovered at the instance of accused. The said bottle was not sent to FSL to ascertained whether it contains the blood of PW1 & 2 or fingerprints of accused. There was no mark of identification on the bottle. In these circumstances, it cannot be said that bottle recovered at the instance of accused is the actual weapon of offences. 30 The evidence on the file does not connect the accused with the commission of the offence in question.
31 Hence, in the light of my aforesaid discussion, I have no State v. Shamirun @ Shamirul Page No.13 / 14 hesitation in hold that prosecution has failed to prove its case beyond shadow of reasonable doubt. The accused is acquitted of the offence charged. His bail bond is canceled and surety bond stands discharged.
32 File be consigned to Record Room.
Announced in the open court on 13th March, 2018 (SURESH KUMAR GUPTA) ASJ04 & Spl. Judge (NDPS) SouthEast District Saket Courts, New Delhi State v. Shamirun @ Shamirul Page No.14 / 14