Delhi District Court
State vs . on 16 January, 2014
1
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE -02, NORTH DISTRICT
ROHINI COURTS : DELHI
IN RE : Sessions Case No. : 654/06
FIR No. : 491/05
P.S. : Bawana
U/s : 395/412/34 IPC
Date of registration : 15-04-2006
Reserved for Judgment on: 08-01-2014
Judgment Announced on : 16-01-2014
State
Vs.
1. Najakat Ali @ Leela S/o Sh. Zakir Ali
R/o C/o Rahis Ka Makan, Gali No. 2,
Kureni, Narela, Delhi.
2. Tofique S/o Sh. Shokat Ali
R/o Village Sonta Rasulpur,
P.S. Bhawan, Teh. Shamli,
District Muzafar Nagar, U.P.
3. Asif S/o Samshad
R/o Village Hind, P.S. Bhawan
District Muzafar Nagar, U.P.
4. Arvind @ Solu S/o Sh. Maha Singh
R/o Village Shimbhalka, P.S. Shamli,
Tehsil Karona, Muzafar Nagar, U.P.
(PROCLAIMED OFFENDER)
5. Rifakat S/o Zakir Ali
R/o Village & Post Office Sonta
Rasool Pur, P.S. Bhawan
District Muzafar Nagar, U.P.
(EXPIRED)
JUDGMENT
1. Briefly stated the present case was registered on the Sessions Case No: 654/06 Page 1 of 21 2 basis of the statement of complainant Girish S/o Pankhi Lal. According to the complainant, he was working as a cable operator in a cable factory situated at G 1119 DSIDC Narela, Delhi and on 27-11-2005, at about 6:30 p.m. he was coming on his motorcycle bearing registration No. DL 4S - 4A 4507 on Barwala Pooth Khurd Road, Service Road (Firni Road) after his duty hours. According to the complainant two motorcycles were also coming behind him and 4 boys stopped his motorcycle. According to the complainant as and when he stopped his motorcycle, the said boys got him down from his motorcycle. One boy took the complainant inside the field and took out his Rs. 1650/- and his purse containing some documents and tied him in the field and made him sit there. The remaining three boys also stopped other two motorcycles which were coming behind the complainant and took the riders of the said motorcycles in side the filed near the complainant and they also robbed their money, purse, and mobile and they also tied them in the filed and made them sit near the complainant. According to the complainant the names of the said two motorcyclist who were tied by the said boys in the filed with the complainant were Sukhvir Singh Rana and Rakesh. After some times all the said four boys ran away from there leaving the complainant and other two motorcyclist there in the field and their motorcycles at some distance. Some how the complainant and other two persons got freed themselves and reached at Pooth Khurd and from there they made a call at No. 100.
2. F.I.R. bearing No. 491/05, was registered at P.S. Bawana and investigation went underway. During the course of investigation accused persons were arrested. After completion of Sessions Case No: 654/06 Page 2 of 21 3 investigation final report u/s 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.
3. On 07-08-2009, a charge U/s 395/34 IPC was framed against all the accused persons and a separate charge u/s 412 IPC was framed against accused Najakat Ali @ Leela to which they pleaded not guilty and claimed trial.
4. In order to prove the guilt of the accused persons, the prosecution examined as many as 11 witnesses.
5. PW 1 Rakesh and PW 2 Girish are the material witnesses and I will discuss their testimonies in the later part of the judgment.
6. PW 3 H.C. Surender Dahiya remained associated with the IO SI Naresh during the investigation of the case. He narrated about the sequence of investigation done by the IO in his presence. He proved on record disclosure statement of accused Najakat Ali as Ex. PW 3/A; seizure memo of mobile pone as Ex. PW 3/B; arrest memo of accused Najakt Ali as Ex. PW 3/C; arrest memo of accused Tofik as Ex. PW 3/C; his personal search memo as Ex. PW 3/D; his disclosure statements as Ex. PW 3/E and Ex. PW 3/F.
7. PW 4 H.C. Vijay Singh is the duty officer. He proved on record the carbon copy of the FIR as Ex. PW 4/A and his endorsement on the rukka as Ex. PW 4/B.
8. PW 5 Retd. ASI Sant Bilas is the first IO of the case. On the leading questions put by the Ld. APP to this witness he admitted that on the intervening night of 26/27-11-05 on receiving the DD No 24 A dated 27-11-2005 which he proved as Ex. PW Sessions Case No: 654/06 Page 3 of 21 4 5/A reached at the spot at Service Road, Pooth Khurd, where he recorded the statement of Girish and made his endorsement on the same which he proved as Ex. PW 5/B and got the present case registered through Ct. Mukesh. He also prepared the site plan which he proved as Ex. PW 5/C.
9. This witness also admitted it to be as correct that complainant Girish handed over to him five pieces of rope vide which Girish was tie.d He seized the plastic rope vide memo Ex. PW 2/B. He also admitted it to be as correct that Shakti Singh handed over to him a receipt of mobile phone which he seized vide memo Ex. PW 5/D and receipt as Ex. PW 5/D1. He further deposed that on 15-12-2005, accused Dharampal was arrested vide memo Ex. PW 5/E. His personal search was carried out vide memo Ex. PW 5/F. He further deposed that thereafter the investigation of this case was transferred to Operation Cell. He further deposed that he cannot identify the rope.
10. PW 6 Sidharth Sharma, Competent Authority, Delhi Urban Shelter Imprisonment Board, Tis Hazari, Delhi conducted the TIP of accused Najakat Ali. He proved on record the application /request to fix the date of TIP of accused Najakat Ali as Ex. PW 6/A and his endorsement on the same as Ex. PW 6/B. He deposed that during the TIP proceedings accused refused to participate in the TIP. He proved on record the TIP proceedings as Ex. PW 6/C; statement of accused regarding his refusal as Ex. PW 6/D; application moved by the IO for taking the copy of proceedings as Ex. PW 6/E and his endorsement for allowing the copy as Ex. PW 6/F.
11. PW 7 Ct. Rohtash Singh deposed that on 03-06-06 he had joined the investigation of this case with IO HC Attar Singh Sessions Case No: 654/06 Page 4 of 21 5 and Ct. Sanjay. Accused Rifakt (since expired) was taken on one day PC remand and during PC remand accused pointed out the place of incident. He further deposed that after getting done the medical examination of the accused Rifakt he was put behind lock up by the IO.
12. This witness was declared hostile and cross examined by the Ld. Addl. PP for the State and in his cross examination he admitted to all what has been put to him by the Ld. Addl. PP for the State. In his cross examination he proved on record disclosure statement of accused Aasif as Ex. PW 7/A and his arrest memo as Ex. PW 7/B.
13. PW 8 H.C. Mukesh Kumar remained associated with the IO SI Naresh Kumar during the investigation of the case. He narrated about the sequence of investigation done by the IO in his presence. He proved on record disclosure statement of accused Aasif as Ex. PW 8/A; pointing out memo of the place of incident pointed out by accused Asif as Ex. PW 8/B and seizure memo of Santro Car recovered at the instance of accused Asif as Ex. PW 8/C.
14. PW 9 Ct. Rajbir remained associated with the IO SI Naresh during the investigation of the case on 20-01-2006 and on 23-02-2006. He also narrated about the sequence of investigation done by the IO in his presence 20-01-2006 and on 23-02-2006. He proved on record arrest memo of accused Najakat Ali as Ex. PW 9/A; pointing out memo of the place of incident pointed out by accused Najakat Ali as Ex. PW 9/B and pointing out memo of the place of incident pointed out by accused Taufiq as Ex. PW 9/C.
15. PW 10 SI Naresh Kumar is the IO of the case. He Sessions Case No: 654/06 Page 5 of 21 6 unfolded the sequence of investigation done by him. He proved on record copy of DD No. 11 as Ex. PW 10/A; his request for fixing the date of TIP of accused Tofiq as Ex. PW 10/B; disclosure statement of accused Arvind as Ex. PW 10/C; arrest memo of accused Arvind as Ex. PW 10/D; pointing out memo of the place of incident pointed out by accused Arvind as Ex. PW 10/E; application for fixing the date of TIP of accused Arvind as Ex. PW 10/F; request for obtaining the copy of TIP of accused Arvind as Ex. PW 10/G and disclosure statement of accused Arvind as Ex. PW 10/H.
16. PW 11 is H.C. Attar Singh to whom the investigation of the present case was assigned on 7-3-2006. He narrated about the sequence of investigation conducted by him. He proved on record arrest memo of accused Rifakat as Ex. PW 11/A; his disclosure statement as Ex. PW 11/B; pointing out memo of the place of incident pointed out by accused Rifakat as Ex. PW 11/C and personal search memo of accused Asif as Ex. PW 11/D.
17. PW 11 also joined the Investigation with IO SI Naresh on 09-07-2006 and he deposed about the sequence of investigation done by IO SI Naresh in his presence on 09-07- 2006. PW 11 is the witness to the arrest of accused Arvind and in his presence accused Arvind was arrested vide arrest memo Ex. PW 10/D; made his disclosure statement Ex. PW 10/C; pointed out the place of incident vide pointing out memo Ex. PW 10/E and all these documents bears the signature of PW 11 at point C.
18. After the closing of the prosecution evidence statement of accused persons U/s 313 Cr.P.C was recorded and all the incriminating evidence was put to them. Accused persons denied Sessions Case No: 654/06 Page 6 of 21 7 the same and stated that they are innocent and have been falsely implicated in this case. Accused Asif did not lead any evidence in his defence but accused Tofique and Najakat Ali led their defence evidence and in their defence they examined one Sadakat as DW 1 and Mohd. Khalid as DW 2.
19. I have heard Ld. Addl.PP for the state and counsel for the accused persons and have also gone through the records of the case.
20. It is submitted by the Ld. Addl. PP for the state that on the basis of the evidence recorded and the material available on record accused persons be convicted. It is further urged by the Ld. Addl. PP for the state that the accused persons have been identified by the witnesses in the TIP. It is further urged that mobile phone Nokia 3200 was recovered from the possession of accused Najakat Ali and this mobile phone was looted from PW 1 Rakesh. It is further urged by the Ld. Addl. PP for the State that the prosecution has fully proved its case.
21. On the other hand, it is submitted by the Ld counsel for the accused persons that the TIP is not trustworthy as the accused persons were shown to the witnesses in the police station. It is further submitted by the Ld defence counsel that the incident is alleged to have taken place on 27-11-2005 and the accused were arrested after about more than 2 months. It is further urged by him that no description of the accused persons have been mentioned in the compliant and in the statement of the witnesses. It is further urged by him that the accused were arrested in a false case and then their disclosure statements were recorded and they have been implicated in the present case. It is further urged by him that the recovery of mobile phone Sessions Case No: 654/06 Page 7 of 21 8 from accused Najakat Ali has been planted and it is highly unbelievable that one would keep a mobile phone with one self without any SIM card knowing that the same is robbed by him. It is further urged that the Santro Car alleged to have been recovered at the instance of accused Asif is also not believable. Ld defence counsel has also submitted that there is interpolation on the date and time of arrest of accused Najakat Ali which has not been explained which shows that he has been falsely implicated.
22. The case of the prosecution rests on the identification of the accused persons and the recovery of the mobile phone from accused Najakat Ali. Now it is to be seen how far the evidence with regard to the identification of accused persons is believable and whether the recovery of robbed mobile phone from accused Najakat Ali is trustworthy?
23. PW 1 is Rakesh who has deposed that on 27-11-2005, he alongwith his son Shakti was going to his house on his motorcycle after attending a marriage. When they reached at service road Phirni Road Khera Khurd at about 8 p.m he saw two boys were keeping a rope across the road and on seeing this he stopped his motorcycle. He further deposed that two boys immediately caught hold of him and his son and they were also having country made pistol type weapon in their hand.
24. He further deposed that two boys took them towards the fields where one another boy was found standing with a pistol type weapon. He further deposed that they took out his Rs. 850/- and a mobile phone make Nokia from his pocket and also the mobile phone of his son Shakti. He further deposed that he also saw two other persons in the fields with their feet tied. This Sessions Case No: 654/06 Page 8 of 21 9 witness identified accused Najakat Ali as the boy who was standing with pistol like weapon which he pointed towards two other persons who were in the field with their feet tied. PW 1 also pointed accused Asif and accused Arvind who were standing with the rope in their hands. He further deposed that accused Asif pointed pistol like weapon towards his son and accused Asif and Arvind had tied their hands and feet. He further deposed that accused Tofique was standing in the field and said "Chalo Tumhari Maut Ka Faisala Vahi Kheto Me Karenge". This witness identified accused Tofique in TIP on 28- 02-2006. He also identified accused Arvind in judicial TIP on 18- 07-2006.
25. This witness was cross examined and in his cross examination he stated that he had seen the accused persons from a distance of 5-6 ft. He further stated that there was no light on the road. He further stated that at about 10:45 p.m accused persons loosen the rope of his son who then freed him and from there they went to their house. He further stated that he informed at No. 100 from Khera Khurd Village. He deposed that his statement was recorded on the next day. He further stated that police came to his house after 5-6 months and took the box of his mobile phone which was having IMEI No. of his phone which was robbed by the accused persons. He further stated that his son was called in the police station after the arrest of accused persons. He further stated that he was called for TIP after 7-8 months of the incident.
26. Another witness of the incident is PW 2 Girish. He deposed that on 28-11-2005 he was going to his house on a motorcycle and when he crossed canal of Khera Khurd and Sessions Case No: 654/06 Page 9 of 21 10 turned towards Bhalsva then 4-5 persons gave danda blows on his shoulder and out of those 4 persons he identified accused Najakal Ali and Asif and also Tofique whose identity has not been disputed. He further deposed that his hands were tied and he was robbed of Rs. 1650/-.
27. He further deposed that one of the accused was tall and two of small height. He further deposed that after some times all the accused persons fled away and he some how untied himself and informed the police who recorded his statement which is Ex. PW 2/A. The plastic rope was taken into possession vide memo Ex. PW 2/B. He further deposed that accused Tofique gave severe beatings to him and two accused persons namely Najakat Ali and Asif assisted him. He has identified accused Asif and accused Arvind in the TIP proceedings.
28. In his cross examination he stated that there was no light at the spot and all the five persons were having their faces muffled though they some time used to un-muffle their faces for smoking. He denied the suggestion that accused persons were shown to him by the police before TIP proceedings.
29. The prosecution has not examined Shakti son of PW 1 Rakesh for the reasons best known to it. Accused Asif, Tofique and Najakat Ali are facing trial in the present case. Initially according to the prosecution, accused Najakat Ali was arrested on 20-01-2006, and then he disclosed about his involvement and the involvement of other accused persons.
30. PW 3 is one of the witness of arrest of accused Najakat Ali in the present case. He has deposed that on 20-01-2006, he was posted as Head Constable in special staff Central West District and on that day at about 2:15 p.m secret informer Sessions Case No: 654/06 Page 10 of 21 11 informed about accused persons wanted in the present case. So IO briefed the members of the raiding party and they all left in official vehicle alongwith secret informer and reached village Kureni Narela. He further deposed that at the instance of secret informer accused Najakat Ali was apprehended and on his search one mobile phone make Nokia 3200 was recovered from the right pocket of the pant of accused but there was no SIM card in the mobile. Accused Najakat Ali made disclosure statement which is Ex. PW 3/A and mobile phone was seized vide memo Ex. PW 3/B. He has also deposed that on 23-2-2006, he again joined in the investigation and on the basis of the secret information accused Tofique was apprehended from near railway phatak and arrested vide memo Ex. PW 3/C.
31. Another witness of arrest of these two accused persons is PW 9 Ct. Rajbir who has also deposed that on 20-01-2006, secret information was received and a raiding party was formed which went to village Kureni in a Tata 407 alongwith secret informer. He further deposed that on the pointing out secret informer accused Najakat Ali who was standing at the corner of the gali was apprehended. His search was taken and mobile phone make Nokia of green and blue colour was found in the right side pocket of his pant. Thereafter IO summoned the case file from PS Bawana for comparing the IMEI number of the phone which was robbed.
32. He further deposed that SI Naresh checked the IMEI number from the case file and tallied from the IMEI number of the mobile phone which was robbed. He further deposed that on 23-2-2006, he again joined the investigation and on the basis of secret information accused Tofique was arrested from a railway Sessions Case No: 654/06 Page 11 of 21 12 phatak S.P. Badli.
33. In the cross examination he stated that the secret informer had pointed towards accused Najakat Ali from a distance of 20/25 ft. but he did not try to run away. He further stated that the mobile phone was not having any SIM card in it. He further stated that accused Tofique also did not try to run away on seeing the police.
34. PW 10 SI Naresh is the IO of the case and he has also deposed about the manner with regard to the arrest of accused Najakat Ali and Tofique as stated by PW 3 H.C. Surender and PW 9 Ct. Rajbir. He has further deposed that accused Najakat Ali was kept in a muffled face but he refused his TIP proceeding. He also deposed that accused Tofique was also kept in muffled face and he was also produced in the court in a muffled face. He further deposed that on 27-2-2006, judicial TIP of accused Tofique could not be conducted as the complainant was not available but on 28-2-2006 his TIP was conducted at Tihar Jail where he was identified by the complainant.
35. He further deposed that accused Asif got recovered a Santro car No. DL 5 CB 2748 which was found outside "Shama Auto Mobile" situated at Bagh Path Delhi Road and this car was seized vide memo Ex. PW 8/C.
36. He further deposed that during the PC remand complainant of this case had come to him to know the progress of this case while accused was in custody and he was identified by the complainant.
37. Now coming to the point of identification. Accused Najakat Ali has refused to join the TIP proceedings. But to my mind adverse inference cannot be drawn against this accused Sessions Case No: 654/06 Page 12 of 21 13 because it has categorically come in the testimony of PW 1 Rakesh that his son was called in the police station after the arrest of accused persons. It has come in the testimony of PW 1 that his son Shakti was aged around 13 years so definitely he must have not gone to the police station alone. He must have been accompanied by his father PW 1 Rakesh. So there was every chance of PW 1 Rakesh having seen the accused persons.
38. Now coming to the identification of accused Tofique, he was put for judicial TIP on 28-02-2006. As per the TIP proceedings which are Ex. PW 1/B accused Tofique was identified by PW 1 and also by Shakti S/o PW 1 but it has come in the cross examination of PW 1 that after the arrest of accused persons his son was called in the police station. It has already been observed by me hereinabove that Shakit is aged around 13 years as per his father PW 1 so definitely he would not have gone to the police station alone. So in these circumstances PW 1 Rakesh and Shakti had all the occasion to see accused Tofique. Moreover Shakti has not been examined as a witness in this case so in these circumstances the TIP of accused Tofique is not beyond the shadow of doubt.
39. Now coming to the judicial TIP of accused Asif which was conducted on 1-7-2006. PW 1 Rakesh, PW 2 Girish and Shakti Son of PW 1 Rakesh failed to identified accused Asif.
40. So in view of the discussions, hereinabove the identity of all the 3 accused persons is not beyond the shadow of doubt. Nothing has been recovered at the instance of accused Tofique. According to the prosecution one Santro Car bearing No. DL 5 CB 2748 was recovered at the instance of accused Asif but that Sessions Case No: 654/06 Page 13 of 21 14 recovery is also not beyond the shadow of doubt because there are major contradictions in the testimony of PW 11 H.C. Attar Singh.
41. PW 11 H.C. Attar Singh has not uttered a single word regarding the Santro Car or the same having been driven by him as stated by PW 10 SI Naresh who is the IO of the case. PW 10 has stated that Santro Car recovered at the instance of accused Asif was towed to Delhi with the help of a taxi which was driven in part by him and H.C. Attar Singh. Whereas PW 8 H.C. Mukesh Kumar has deposed that the recovered Santro Car was towed with the help of their Santro car to PS Bawana. So in these circumstances, no reliance can be placed on the recovery of Santro Car.
42. According to the prosecution, a mobile phone make Nokia 3200 was recovered from accused Najakat Ali when he was arrested on 20-01-2006, and this IMEI number tallied with the IMEI number of the robbed mobile phone. It has also come in the evidence that above said mobile phone was not having SIM card. When accused Najakat Ali was apprehended and his personal search was taken vide memo Ex. PW 3/C he was carrying with him one mobile phone make Reliance RSN-RL GHS 1010 silver colour L.G. It is not understood why the accused would carry with him a mobile phone which was robbed by him about 2 months ago and that too without a SIM card. It is natural human conduct that robbed or stolen articles are disposed off by the thieves, robbers or dacoits as soon as possible. Now when the accused was having his own mobile phone I do not see any reason for him to carry a robbed mobile phone that too without a SIM Card.
Sessions Case No: 654/06 Page 14 of 21 1543. PW 1 Rakesh Kumar has stated that police had come to him after about 5-6 months of the incident and took the box of mobile phone which was having IMEI No. of his mobile phone which was robbed. Meaning thereby till the time of the arrest of the accused police was not having any details about the mobile phone which was allegedly robbed. So in these circumstances, the recovery of the mobile phone make Nokia 3200 from accused Najakat Ali is not trustworthy and cannot be relied upon.
44. To sum up the prosecution has failed to prove the positive identity of the accused persons; recovery of the Santro Car at the instance of accused Asif and recovery of mobile phone make Nokia 3200 from accused Najakat Ali is also not reliable and trustworthy.
45. Therefore in view of the above discussions, I am of the opinion that the prosecution has failed to prove its case beyond all reasonable doubts against the accused persons. All the accused persons are therefore, acquitted. Accused Arvind is a proclaimed offender. The prosecution is at liberty to get the case revived against accused Arvind as and when he is arrested. (Announced in the open Court on 16-01-2014.) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE-02 NORTH DISTRICT, ROHINI COURTS : DELHI Sessions Case No: 654/06 Page 15 of 21