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Delhi District Court

Fir No. 300/2014 State vs . Mohd. Israil on 7 January, 2019

FIR No. 300/2014                      State Vs. Mohd. Israil
PS : Kotwali


    IN THE COURT OF MM­08 (CENTRAL DISTRICT)
        TIS HAZARI COURTS COMPLEX, DELHI.

Presiding Officer: Dinesh Kumar, DJS.

IN THE MATTER OF :
State Vs. Md. Israil
FIR No. 300/2014
PS : Kotwali
U/s 457/382/511 IPC
Date of Institution        : 11.06.2014
Date of reserving of order : 07.01.2019
Date of Judgment           : Oral
CNR No. DLCT02­004600­2014

JUDGMENT

1. Serial No. of the case : 296955/2016

2. Name of the Complainant : Anirudh Yadav

3. Date of incident : 15.04.2014

4. Name of accused person :

Mohd. Israil S/o Sh. Mohd. Nurul, R/o Village Parsa, PS : Sitamarhi, District Sitamarhi, Bihar

5. Offence for which chargesheet was filed : S. 457/382/511 IPC

6. Offence for which charge has been framed : S. 457/382/511 IPC Page 1 of 17 MM­08 (C)/THC/Delhi/07/01/19 FIR No. 300/2014 State Vs. Mohd. Israil PS : Kotwali

7. Plea of accused : Not guilty

8. Final Order : Acquitted

9. Date of Judgment : 07.01.2019 BRIEF REASONS FOR ORDER:

1. Mr. Md. Israil, the accused herein, has been charge­sheeted for committing offences punishable under Section 457/382/511, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").

2. The case of the prosecution is that on 15/04/2014 at about 2:15 a.m at 11­B, PG Market, Chandni Chowk, Delhi, complainant Anirudh Yadav, a servant at Shop No. 18­B, PG Market Chandni Chowk was sleeping when he heard a noise coming from behind the shop. He called Lal Bahadur, a watchman in the locality.

Both of them had seen that the accused was breaking open the aforesaid premises in the night with the help of Chheni and hammer. They made a noise. The accused tried to run away, however, he was apprehended by the public person. On a complaint present FIR was registered. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and the accused was Page 2 of 17 MM­08 (C)/THC/Delhi/07/01/19 FIR No. 300/2014 State Vs. Mohd. Israil PS : Kotwali charge­sheeted for the offences punishable under Section 457/382/511, Indian Penal Code.

3. After perusing the record, cognizance was taken by the Ld. Predecessor and summons were issued to the accused. Accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offence punishable under Section 457/382/511, IPC was framed against the accused. It was read over to him to which he pleaded not guilty and claimed trial.

4. The prosecution has examined as many as 08 witnesses to prove its case against the accused.

5. PW­1 Sh. Anirudh Yadav is the complainant. He has deposed that he had been residing at the address of landlord Sh. Kishan Grover situated at 11­B, godown, PG Market, Delhi. On the date of incident, in the night at about 2.00 a.m., while he was sleeping, he heard the noise of THAK­THAK from back side of the Godown. He got up and went to the back side of the godown where he saw that the accused was breaking the window of godown to take out the articles. He told the said incident to the watchman Lal Bahadur and they raised hue and cry Page 3 of 17 MM­08 (C)/THC/Delhi/07/01/19 FIR No. 300/2014 State Vs. Mohd. Israil PS : Kotwali on which accused tried to flee towards PG Market. He also chased accused. Other public persons of the locality came over there and accused was apprehended in the PG Market. Public persons had also beaten the accused at the spot at the time of apprehension. In the meantime, one police official also came at the spot. The custody of the accused was handed over to him. The chheni and hammber used by the accused were also recovered from near the window of the godown. On cursory search of accused, one knife was recovered from his pocket. Later on, other police officials also came at the spot. A statement of PW­1 was recorded by the police at the PS which is Ex.PW1/A. The site plan was prepared. The Cheni and Hammer were seized by the police vide seizure memo Ex. PW1/B. The sketch of the recovered knife was prepared which is Ex. PW1/C. The knife was seized vide seizure memo Ex. PW1/D. Thereafter, accused was arrested vide memo Ex. PW1/E. Personal search was conducted vide memo Ex. PW1/F. The witness has identified the accused in the Court. However, he did not identify the chheni and hammer. He would state that he was unable to identify the case of property due to lapse of long time.

FIR No. 300/2014 State Vs. Mohd. Israil PS : Kotwali

6. PW­2 Lal Bahadur is the watchman who was present at the spot alongwith the complainant. He has deposed similar to PW1.

7. PW­3 Ct. Mahesh Chand is the police official who had reached at the spot after apprehension of the accused. He has deposed that on 15.04.2014, he was on patrolling duty alongwith Ct. Om Prakash in the area of PP Red Fort. At about 02:15 a.m, when they reached at 11B PG Market, Chandni Chowk, Delhi, they heard a noise of "Chor Chor". Complainant Anirudh Yadav met them on the spot who handed over them one thief who revealed his name as Mohd. Israil. Some public persons had also gathered at the spot and he saved the accused from the public person who had already beaten him. He immediately made a call at PP Red Fort and after some time, ASI Rishi Pal reached there. One small knife was also recovered from the possession of the accused. He had handed over the knife and custody of accused to the IO. IO had prepared sketch of the knife vide memo Ex. PW­1/C. Thereafter, IO had recorded statement of complainant and prepared the rukka and handed over to him for registration of FIR. He went to PS, got FIR registered and returned at the spot with copy of FIR and original rukka Page 5 of 17 MM­08 (C)/THC/Delhi/07/01/19 FIR No. 300/2014 State Vs. Mohd. Israil PS : Kotwali and handed over the same to the IO. Thereafter, accused had led them to the spot where he was breaking the locks of the godown and at his instance one hammer alongwith one "Chhenni" were recovered. IO had kept the aforesaid recovered articles in separate pullandas and sealed with the seal of RPS. The aforesaid pullandas were seized vide seizure memo Ex.PW­1/B. Thereafter, IO had arrested and personally searched the accused vide memo Ex. PW­1/E and Ex. PW­1/F. IO had also recorded disclosure statement of accused which is Ex. PW­3/A. IO had also prepared site plan of the spot in his presence. IO recorded his statement in this regard. He has identified the accused in the Court.The witness also identified the case property i.e., Hammer which is Ex.P­1, the knife which is Ex. P­2 and the Chhenni which is Ex. P­3.

8. PW­04 HC Om Prakash is the police official who was on patrolling with PW­3. He has deposed that on 15.04.2014, at about 2:00 a.m, they reached at Chowk near PP : Red Fort. They were relaxing at the aforesaid spot at that time, when Ct. Mahesh went on foot towards Gauri Shankar Temple. After some time, he came to know that Ct. Mahesh had caught a thief behind Gauri Shankar Temple at Pleasure Garden.

FIR No. 300/2014 State Vs. Mohd. Israil PS : Kotwali

9. PW­5 Ct. Ravinder is the DD writer who had recorded the DD number 4 PP at about 2 :35 a.m., on 15.04.2014 and DD No. 6PP on the same day. The copies of the DD entry are Ex.PW5/A (OSR) and Ex. PW 5/B (OSR).

10. PW­6 Krishan Grover is stated to be an eye witness. However, he has deposed that he did not know anything about this case. The witness was cross­examined by Ld. APP as he had resiled from his previous statement recorded by the IO under Section 161 Cr.P.C. The witness denied recording of any statement by the IO. He has admitted that on 15.04.2014, he was running a shop at 18­B, PG Market, Chandni Chowk, Delhi. He has however stated that he did not have any godown at premises no.11­ B, PG Market, Chandni Chowk, Delhi. He has also stated that complainant Anirudh Yadav never worked with him and that he did not know any such person. He was confronted with his statement recorded by the IO. He denied making of any such statement.

11. PW­7 ASI Rajender Singh is the Duty Officer. He has proved the registration of FIR copy of which is Ex. PW7/A (OSR). He had issued the certificate under Section 65 B of Indian Evidence Act which is Ex.PW7/B. He had Page 7 of 17 MM­08 (C)/THC/Delhi/07/01/19 FIR No. 300/2014 State Vs. Mohd. Israil PS : Kotwali made the endorsement on the rukka which is Ex.PW1/A (from point X to X1). He had handed over the rukka and copy of FIR to Constable Mahesh to be given to ASI Rishipal.

12. PW­8 SI Rishi Pal is the IO. He has deposed that on 15.04.2014 he was on night emergency duty. On that day, after receiving DD no. 6 PP which is Ex. PW­5/B regarding apprehension of a thief at 11B, PG Market, Chandni Chowk, Delhi, he immediately reached at the aforesaid spot where Ct. Mahesh was found. The complainant namely Anirudh Yadav and one Chowkidar namely Lal Bahadur also met him there. Ct. Mahesh was apprehending one person / thief who revealed his name as Mohd. Israil. One small knife was also recovered from the possession of accused Mohd. Israil and the complainant had handed over that knife. He had recorded statement of complainant Anirudh Yadav which is Ex. PW­1/A. He had prepared sketch of the recovered knife which is Ex. PW­ 1/C. The knife was kept in a pullanda and sealed with the seal of RPS. Pullanda was seized vide memo Ex. PW­1/D. He prepared the rukka which is Ex. PW­8/A and handed over to Ct. Mahesh for registration of FIR. He went to PS for registration of FIR. In between he had prepared site Page 8 of 17 MM­08 (C)/THC/Delhi/07/01/19 FIR No. 300/2014 State Vs. Mohd. Israil PS : Kotwali plan of the spot which is Ex. PW­8/B. Thereafter, Ct. Mahesh returned at the spot with copy of FIR and original rukka and handed over the same to him. One Chhenni and Hammer were also recovered from the spot. He had kept the aforesaid case property in a pullanda and sealed with the seal of RPS. The aforesaid pullanda was seized vide memo Ex. PW­1/B. The accused was arrested and personally searched vide memo Ex. PW­1/E & Ex.PW­1/F. He had recorded disclosure statement of the accused which is Ex. PW­3/A. He had recorded statement of relevant witnesses. Photographs of the spot were clicked by him by using digital Camera and these photographs alongwith CD are Ex. PW­8/C (colly, six photographs and one CD). Case properties were deposited in the Malkhana. After necessary investigation of this case, challan was prepared. The witness identified the accused and the case property in the Court.

13. The prosecution evidence was closed. Accused was examined U/s 313 Cr PC r/w Section 281 Cr. PC. The accused denied the incriminating evidence. He would state that he was falsely implicated in the present case. He was lifted from his home. He was kept in the Page 9 of 17 MM­08 (C)/THC/Delhi/07/01/19 FIR No. 300/2014 State Vs. Mohd. Israil PS : Kotwali police station. His thumb impressions were taken on 3­4 pages. He was innocent.

14. The accused did not lead any defence evidence. Therefore, matter was fixed for final arguments.

15. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. It has been proved that the accused was apprehended at the spot. The prosecution witnesses have deposed specifically against the accused. The identity of the accused has been proved beyond reasonable doubts. Hence, the prosecution has proved all the ingredients of the offences punishable under Section 457/382/511 IPC and the guilt of the accused has been proved beyond reasonable doubts. Hence, it is prayed, the accused may be convicted.

16. Ld. Defence counsel, on the other hand, would argue that the prosecution has failed to prove its case against the accused beyond reasonable doubts. There are various contradictions in the testimonies of the witnesses of the prosecution. The alleged recovery has been planted upon him. He was falsely implicated to settle some personal score. Hence, it is prayed, the benefit of Page 10 of 17 MM­08 (C)/THC/Delhi/07/01/19 FIR No. 300/2014 State Vs. Mohd. Israil PS : Kotwali doubts may be given to the accused and he may be acquitted.

17. I have heard the rival submissions and carefully perused the material available on record.

18. In a criminal case the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put his defence.

19. In the present case, the accused has been charged for committing offences punishable U/s 457/382/511 IPC. It has been alleged by the prosecution that on the relevant date, time and place the accused had attempted to commit lurking house trespass or house breaking by night after making preparation for causing death, hurt or restraint in order to committing of the theft. However, he could not succeed in his plan due to intervention by the complainant and the watchman.

20. The prosecution has examined various witnesses to prove its case. However, PW­1 Anirudh Yadav, PW­2 Lal Bahadur and PW­6 Krishan Grover are the material witnesses.

21. PW­1 Anirudh Yadav is the complainant. He has deposed that he had been residing at the address of Page 11 of 17 MM­08 (C)/THC/Delhi/07/01/19 FIR No. 300/2014 State Vs. Mohd. Israil PS : Kotwali landlord Shri Krishan Kumar Grover at 11­B, Godown PG Market, Delhi. Shri Krishan Kumar Grover, the PW­6, however, has stated in his cross­examination by Ld. APP that he did not know any person in the name of Anirudh Yadav i.e., the complainant. Thus, the fact that the complainant had been residing in the property of Krishan Grover has come under the clouds of reasonable doubts.

22. Further, PW­1 Anirudh Yadav has stated that Krishan Kumar Grover was in possession of property 11B PG Market where the accused person was allegedly trying to commit the above­mentioned offences. However, PW­6 Krishan Kumar Grover has stated in his testimony that he was not in possession of any such property. Thus, this part of the testimony of the complainant has also come under the clouds of reasonable doubts.

23. There are various other contradictions also which create reasonable doubts on the story as narrated by the prosecution. PW­1 Anirudh Yadav has stated in his cross­examination that his statement Ex.PW1/A was recorded in the police station. He has also categorically stated that he had not signed any documents on the spot. However, PW­3 Ct. Mahesh Chand and PW­8 SI Rishipal Page 12 of 17 MM­08 (C)/THC/Delhi/07/01/19 FIR No. 300/2014 State Vs. Mohd. Israil PS : Kotwali has stated that the statement of the complainant was recorded on the spot and thereafter a tehrir was prepared which was then taken to the PS and FIR was got registered. Thereafter, Constable Mahesh had returned at the spot with the copy of FIR and original rukka and handedover them to SI Rishipal. They have also deposed that the seizure memo were also prepared at the spot. The seizure memos also bear the signatures of PW­1 and PW­2. Similarly the arrest memo and personal search memo of the accused also bear the signatures of PW­1 and PW­2. The accused is shown to be arrested at the spot. However, as per PW­1 he had not signed even a single document at the spot. Further, PW­2 has also stated that he had signed some documents in the PS. Thus, the recording of statement of the complainant at the spot, the preparation of seizure memos and the arrest and personal search memos of the accused on the spot has come under the clouds of reasonable doubts. There is no explanation on record for this discrepancies.

24. Further, as per the prosecution the IO had seized the case property at the spot vide memo Ex. PW1/B and Ex. PW1/D before sending the rukka for registration of FIR. The fact of seizure of the case property is also Page 13 of 17 MM­08 (C)/THC/Delhi/07/01/19 FIR No. 300/2014 State Vs. Mohd. Israil PS : Kotwali mentioned in the rukka itself. Further the rough sketch of the knife was also allegedly prepared before sending the rukka for registration of FIR. The FIR was, therefore, admittedly registered after the preparation of these documents. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot. Thus, ordinarily, the FIR number should not find mention in the seizure memos and the rough sketch which came into existence before registration of the FIR. However, interestingly, the seizure memos Ex. PW­1/B and Ex.PW1/D, and the rough sketch of knife Ex.PW­1/C bear the FIR number and case details. The PWs in their examination have not stated that they had mentioned the FIR number later on. There is no evidence to this effect in the testimony of PWs. The same indicates that FIR number was mentioned on the said documents while preparing the same. Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127, has observed in paragraph 5 as under:

"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan Page 14 of 17 MM­08 (C)/THC/Delhi/07/01/19 FIR No. 300/2014 State Vs. Mohd. Israil PS : Kotwali of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."

25. In Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi has observed:

"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub­Inspector Narender Kumar Tyagi (PW­7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the Page 15 of 17 MM­08 (C)/THC/Delhi/07/01/19 FIR No. 300/2014 State Vs. Mohd. Israil PS : Kotwali report submitted under State v. Om Prakash Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."

26. In the present case also, no explanation is available on record as to how the FIR number and case details had appeared on the rough sketch Ex. PW­1/C and the seizure memos Ex. PW­1/B and Ex.PW1/D. The same leads to only one conclusion that either the said documents were prepared later on or that the FIR had been registered earlier in point of time. In both the aforesaid cases a reasonable doubt has been raised on the case of the prosecution.

FIR No. 300/2014 State Vs. Mohd. Israil PS : Kotwali

27. In the light of the discussions hereinabove, I hold that the prosecution has failed to prove its case against the accused beyond reasonable doubts. The accused is entitled to benefit of these reasonable doubts. The accused is therefore acquitted.

28. The accused has already furnished bond under Section 437A, with one surety along with photographs and copies of address proof.

Pronounced in the open Court on (Dinesh Kumar) this 07th Day of January 2019 MM­08 (Central) Tis Hazari Courts, Delhi.