Delhi District Court
State vs 1) Iqbal Ahmed @ Babloo on 10 October, 2019
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
DISTRICT & SESSIONS JUDGE, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
SC-20/18
CNR No.DLNE01-000066-2018
State Versus 1) Iqbal Ahmed @ Babloo
S/o Babu Ahmed
R/o 394, Gali No.19,
Jafrabad, Delhi.
2) Izhar @ Khalid
S/o Mohd. Hasan @ Maroof
R/o R-108, Gali No.21,
Brahampuri, Delhi.
FIR No: 354/17
PS: Seelampur
Under Section : 392/397/34IPC
Date of institution of case : 17.01.2018
Date of passing of Judgment : 10.10.2019
JUDGMENT
1. The case of the prosecution as unfolded in the charge- sheet is that on 12.07.2017, statement of complainant Bhushan Parcha s/o Shiv Kumar was recorded about 09.25AM at PS:
Seelampur. He alleged that he was running a dry-cleaning shop at Mayur Vihar, Phase-I and on the night of 11.07.2017 about 08.30PM was returning from his shop to residence on motorcycle no. DL-7SCC-4232, TVS Apache, engine no.08710, chassis no.07849, model 2017 (white colour). When he reached near EDMC Brick Factory near Kot Market, Shastri Park, three boys on a motorcycle came from behind and stopped their SC No.20/18-State vs. Iqbal Ahmed and Ors. Page No.1 of 15 motorcycle in front of his motorcycle. Consequently, complainant was constrained to stop his motorcycle, on which the person who was driving the other motorcycle left. Further, other two persons riding the motorcycle approached him. One of the aforesaid persons was tall with fair complexion and short hair, while the other person was of short height with wheatish complexion and was thinly built. The tall person took out the key of his motorcycle while the other person took out a country made pistol from his pant and placed the same on complainant's waist and threatened him to get off from the motorcycle, failing which he would be killed. Further, complainant was pushed from the motorcycle and both the aforesaid persons fled towards Ajeet Nagar along with his motorcycle.
On the basis of same, an FIR under Section 392/397/34 IPC was registered.
It is further the case of prosecution that on 11.09.2017 accused Iqbal Ahmed @ Babloo was arrested in FIR no.576/17 under Section 25/54/59 Arms Act PS Seelampur and he made disclosure statement regarding his involvement in the present case along with his accomplices namely, Khalid and Sahid @ Lambu @ Totla. Accused Iqbal Ahmed @ Babloo was accordingly formally arrested in the present case and his disclosure statement was separately recorded. Further, pointing out memo was prepared at the instance of accused Iqbal @ SC No.20/18-State vs. Iqbal Ahmed and Ors. Page No.2 of 15 Babloo and efforts were made to trace co-accused. Also, on an application filed on behalf of the investigating agency, TIP proceedings of accused Iqbal @ Babloo were conducted on 07.10.2017, wherein complainant duly identified the accused Iqbal Ahmed @ Babloo.
Thereafter, on 28.10.2017, accused Izhar @ Khalid was arrested in FIR no.652/17 under Section 411 IPC/25 Arms Act and made a disclosure statement regarding involvement in the present case. Accused Izhar @ Khalid was accordingly formally arrested in the present case and his disclosure statement was separately recorded. The accused refused to participate in the TIP proceedings before the ld. Link MM.
Further, the third accused Sahid @ Lambu @ Totla could not be traced. The case property also could not be recovered. Charge-sheet was accordingly filed after investigation.
2. On appearance, in compliance of Section 207 Cr.P.C, copies were supplied to both accused and as offence punishable under Section 392/397/34 IPC is triable by the Court of Sessions, present case was committed to the Sessions Court.
3. Accused Iqbal Ahmed @ Babloo and Izhar @ Khalid were charged under Section 392/397/34 IPC to which they pleaded not guilty and claimed trial.
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4. In support of its case, prosecution examined five witnesses, namely, PW-1 Bushan Parcha (complainant), PW-2 ASI Vijay Kumar (IO), PW-3 Retired SI Vinod Tyagi, PW-4 SI Manoj Kumar and PW-5 Ms. Bhawani Sharma, Additional Chief Metropolitan Magistrate, NE District, Karkardooma Courts, Delhi.
i) PW-1 Bhushan Parcha (complainant) deposed that in the year 2017, he used to work in a dry-cleaning shop at Mayur Vihar, Phase-I. On 11.07.2017 at about 8.30PM, he was coming on his motorcycle no.DL-7SCC-
4232 make Apache. When he reached near Kot Market, Shastri Park, three persons riding on a motorcycle came in front of him and obstructed from front side. Consequently, complainant stopped his motorcycle. Further, two persons alighted from the other motorcycle and one of them removed the ignition key of complainant's motorcycle while the other one took out a country made pistol from his pant and pointed the same towards him. The said person also abused complainant and pushed him from his bike. Further, he (complainant) became perplexed and by the time he could do something, both accused ran away from the spot along with his bike towards Ajeet Nagar. He further identified SC No.20/18-State vs. Iqbal Ahmed and Ors. Page No.4 of 15 both accused present in the court who took away his motorcycle along with third associate who was taller than both these accused. He further pointed out that accused Iqbal is the same person, who had taken out country made pistol from his pant and shown him. He further stated that he could also identify the third accused, if shown to him. He further deposed that since he became perplexed and fearful, he went home from the spot and lodged his complaint on the following day i.e 12.07.2017. He further identified his signature on his statement Ex.PW1/A. He further deposed that he was called by the police to identify accused at Tihar Jail and had identified one accused in Tihar Jail in TIP proceedings. He further identified his signature on the photocopy of the TIP proceedings of accused Iqbal Ahmed Mark PW1/A. He further clarified that he was not sure about the second accused present before the Court because he had seen that accused from behind and accused had left the spot swiftly. He further stated that his motorcycle had not been recovered by the Police.
ii) PW-3 Retired SI Vinod Tyagi deposed that he was posted as Duty Officer on 12.07.2017 at PS Seelampur and registered FIR No.354/17 (Ex.PW3/B) under Section SC No.20/18-State vs. Iqbal Ahmed and Ors. Page No.5 of 15 392/397/34 IPC on the basis of rukka presented by ASI Vijay Kumar. Further, he recorded endorsement on the rukka regarding registration of the case which is Ex.PW3/A and bears his signature.
iii) PW-4 SI Manoj Tomar deposed that on 10.09.2017, he was posted at PS Seelampur. Accused Iqbal Ahmed @ Babloo was arrested by him in FIR no.576/17 under Section 411/34 IPC & 25 Arms Act PS Seelampur along with another accused Ahetsham @ Ashu. Accused Iqbal @ Babloo made disclosure statement regarding his involvement in several other cases, including snatching of Apache motorcycle along with one Khalid and Sahid. A copy of his disclosure statement was transmitted to ASI Vijay Kumar PS Seelampur and pursuant to same, accused Iqbal @ Babloo was formally arrested by IO ASI Vijay Kumar in this case on 11.09.2017. He further stated that accused was kept muffled face during investigation. He further proved copy of disclosure statement of accused Iqbal @ Baloo made in FIR No.576/17 as Mark PW2/A. He further deposed that on 28.10.2017 accused Izhar @ Khalid was arrested by him in FIR No.652/17 under Section 411 IPC & 25 Arms Act PS Seelampur. Accused made disclosure statement regarding SC No.20/18-State vs. Iqbal Ahmed and Ors. Page No.6 of 15 involvement in the present case and copy of same (Mark PW2/A1) was transmitted to ASI Vijay Kumar. Further, he handed over the custody of accused Izhar @ Khalid to IO ASI Vijay Kumar in muffled face. He further deposed that an application for TIP of accused Izhar @ Khalid was moved before the concerned court, but accused refused to participate in the TIP proceedings. Copy of the same was Mark PW2/B.
iv) PW5 Ms. Bhawani Sharma, Addl. Chief Metropolitan Magistrate, N-E District, Karkardooma Court, Delhi proved the TIP proceedings conducted in respect of accused Iqbal Ahmed @ Babloo on 07.10.2017 wherein witness Bhushan Parcha had correctly identified the accused.
She further deposed that on 30.10.2017, an application of TIP of accused Izhar @ Khalid was marked to her. On inquiry, accused Izhar @ Khalid refused to participate in the TIP proceedings stating that his photographs had been already shown to the complainant by the police at the PS. In view of above, TIP proceedings of accused Izhar @ Khalid were not conducted. She further proved TIP proceeding in respect of accused Iqbal Ahmed @ Babloo (Ex.PW5/A) and in respect of accused Izhar @ Khalid (Ex.PW5/B).
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v) PW2 ASI Vijay Kumar (IO) deposed on prosecution lines. He proved rukka Ex. PW2/A, photocopy of disclosure statement of accused Iqbal Ahmed @ Babloo made in FIR no.576/17 (Mark PW2/A), arrest memo of accused Iqbal Ahmed Ex.PW2/C, disclosure statement of accused Iqbal Ahmed (made in the present case) Ex.PW2/D, pointing out memo Ex.PW2/E and copy of TIP proceedings Mark PW1/A. He further deposed that on 28.10.2017 co-accused Izhar @ Khalid was arrested by SI Manoj Kumar in FIR no.652/17 PS: Seelampur. He further proved the copy of disclosure statement of accused Izhar @ Khalid collected by him from SI Manoj Kumar (Mark PW2/A), disclosure statement of accused Izhar @ Khalid (made in the present case) Ex.PW2/F, arrest memo in respect of accused Izhar @ Khalid Ex.PW2/G, pointing out memo Ex.PW2/H, copy of refusal of TIP proceedings by accused Izhar @ Khalid Mark PW2/B.
5. Thereafter, ld. Chief Public Prosecutor for the State, vide separate statement, closed the prosecution evidence. Statement of accused under Section 313 Cr.P.C. was recorded wherein both the accused took a plea that they are innocent and had been falsely implicated in the present case. However, SC No.20/18-State vs. Iqbal Ahmed and Ors. Page No.8 of 15 no evidence in defence was led on behalf of he accused.
6. I have heard counsel for the accused, ld. Addl. Public Prosecutor for the State and perused the record carefully.
It is submitted by counsel for accused that there was delay in reporting of the incident which allegedly took place on 11.07.2017 about 8:30PM, but was reported only on 12.07.2017 about 9:25AM. It is further contended that movement of accused could not be detected in CCTV footage near the place of incident. Further, accused Iqbal Ahmed @ Babloo was allegedly arrested after about 2 months of the incident on 11.09.2017 while accused Izhar @ Khalid was arrested on 28.10.2017 after a period of about 3½ months and identification was at behest of the investigating agency. It was further contended that neither the motorcycle could be recovered at the instance of accused nor whereabouts of third accused had been traced by the police. The conduct of TIP proceedings was also challenged on the ground that accused Iqbal @ Babloo had already been shown to the complainant prior to conduct of TIP proceedings as deposed by PW1 in his cross-examination. Further, the complainant himself was not sure as to identity of accused Izhar @ Khalid since the complainant did not have proper opportunity to observe the accused as deposed by PW1.
Per contra, Ld. Addl. PP for the State contended that the contradictions pointed out by the counsel for accused are minor SC No.20/18-State vs. Iqbal Ahmed and Ors. Page No.9 of 15 in nature. Further, there was no reason for falsely implicating the accused in the present case and the case has been fairly investigated as the accused were arrested in the present case only on the basis of disclosure statement made in another case.
7. At the outset, it may be appropriate to notice the legal position and value of TIP proceedings conducted under Section 9 of the Indian Evidence Act.
In State v. V.C. Shukla AIR 1980 SC 1382, it was held by a three Judge Bench of the Hon'ble Supreme Court that identification by the witness for the first time in the court, without being tested by a prior T.I.P, was valueless.
Further, in George v. State of Kerala 1998 (2) JCC 1927, it was observed by the Hon'ble Apex Court that though not fatal, absence of corroborative evidence of prior identification in a test identification parade makes the substantive evidence of identification in court after a long lapse of time a weak piece of evidence and no reliance can be placed upon it unless sufficiently and satisfactorily corroborated by other evidence.
In Dana Yadav @ Dahu and others v. State of Bihar (2002) 7 SCC 295, after discussing the several pronouncements, the Hon'ble Apex Court concluded as under :-
"Para 37 (a) to (d)..........(e) Failure to hold test identification parade does not make the evidence of identification in Court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not SC No.20/18-State vs. Iqbal Ahmed and Ors. Page No.10 of 15 form basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in Court of an accused by a witness and the same is a rule of prudence and not law.
(f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in Court, without the same being corroborated by previous identification in the test identification parade or any other evidence, conform the basis of conviction.
(g) Ordinarily, if an accused is not named in the first information report, his identification by witnesses in Court, should not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above.
................................":
8. In the present case, it may be observed that the description of accused as given by the complainant in the FIR does not match with their role as revealed in testimony of complainant (PW1). As per the description of accused given by complainant in the FIR, out of three accused, one who was driving the motorcycle left the spot, while the other two accused aged about 25-26 years committed robbery. Further one of the said accused who committed robbery was tall with fair complexion and small hair while the second accused was of short height with wheatish complexion. Further, the tall accused allegedly took out key of motorcycle of complainant while other accused (with short height) took out a country made pistol from his pant and placed it on the waist of the complainant.
SC No.20/18-State vs. Iqbal Ahmed and Ors. Page No.11 of 15 Factually, as per physical characteristics observed in the court, accused Iqbal @ Babloo is of wheatish colour and of tall height while accuse Izhar @ Khalid is of short height. The role attributed to accused as per FIR is inferentially that accused Iqbal (of tall height) took out key of the motorcycle while accused Izhar @ Khalid (of short height) used country made pistol. However, in the deposition before the court, PW1 pointed out towards Iqbal who is of tall height and wheatish complexion as the person, who had shown him the country made pistol which is contrary to the case in FIR.
In view of above, the role of accused does not match with the description given by the complainant as in the FIR and strikes to the root of prosecution version.
9. Further, identification of accused needs to be seen in the light of fact that PW1 clarified in cross-examination that accused was shown to him at the Police Station prior to conduct of TIP proceedings.
He further deposed in his examination-in-chief that he was not sure about the identity of the second accused (i.e. Izhar @ Khalid who had refused to participate in TIP proceedings) since he had seen the said person from behind and accused had left the spot swiftly. As such, complainant was not himself confirmed of identity of accused Izhar @ Khalid and same remains in a grey area.
SC No.20/18-State vs. Iqbal Ahmed and Ors. Page No.12 of 15 The fact cannot be lost sight of that the incident had taken place at about 08.30PM in the night for a few moments in darkness and the identification proceedings of accused Iqbal were conducted after about more than two months of the incident. The probative value of such identification evidence wherein the witness has already been shown the accused in police custody loses its relevance since the identification on the basis of tutoring by the police as to the commission of offence by the accused would be of little value and it may be unsafe to convict the accused in absence of any other corroborating evidence. The conduct of TIP proceedings in respect of accused Iqbal @ Babloo, as such, stands vitiated. I have already observed above that even identity of accused Izhar @ Khalid remains inconclusive as the complainant clarified that he was not sure of his identity since he had seen the accused from behind and had left the spot swiftly.
10. Further, admittedly, the accused were arrested in another case and alleged to have made disclosure statement regarding involvement in the present case. Such a disclosure statement remains inadmissible in law under Section 126 of Evidence Act unless it leads to recovery of such fact by the accused pursuant to such a disclosure statement. In the present case, no recovery could be effected from the possession of the accused and as such the case largely rests only on the basis of identification SC No.20/18-State vs. Iqbal Ahmed and Ors. Page No.13 of 15 which in my opinion cannot be relied upon to convict the accused, as already observed above.
11. It is axiomatic that the prosecution must establish its case against the accused by leading evidence that is accepted by the standards that are known to criminal jurisprudence, as observed by the Hon'ble Apex Court in Kailash Gour and Ors. v. State of Assam, (2012) 2 SCC 34. Further, it is a well settled principle that a suspicion, however grave it may be, cannot take place of proof, i.e., there is a long distance between "may be"
and "must be", which must be traversed by the prosecution to prove its case beyond reasonable doubt as observed by the Hon'ble Supreme Court in Narendra Singh v. State of M.P., (2004) 10 SCC 699.
For the foregoing reasons, prosecution has failed to bring home charge against the accused beyond reasonable doubt. Both the accused are accordingly acquitted of the charge framed against them.
12. Accused are directed to furnish fresh personal bond in the sum of Rs.10,000/- (Rupees Ten Thousand Only) each with one surety in the like amount, which shall remain in force for a period of six months from the date of this order, in pursuance of Section 437(A) Code of Criminal Procedure, 1973.
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13. File be consigned to Record Room after necessary compliance.
Announced in the open Court On 10th October, 2019 (ANOOP KUMAR MENDIRATTA) DISTRICT & SESSIONS JUDGE, NORTH-EAST DISTRICT, KARKARDOOMA COURTS, DELHI.
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